EXHIBIT 10.9.2
FUTURE ADVANCE DEED TO SECURE DEBT,
ASSIGNMENT OF RENTS AND LEASES
AND SECURITY AGREEMENT (GEORGIA)
[COMPASS BANK LOGO]
STATE OF GEORGIA
COUNTY OF XXXXXX
THIS INDENTURE (herein this "DEED TO SECURE DEBT") made as of the 25 day of
April, 2001, between XXXXXXX PROPERTIES RESIDENTIAL, L.P., a Georgia limited
partnership (hereinafter called the "GRANTOR," whether one or more) and COMPASS
BANK (hereinafter called "BANK"), as grantee. The addresses of the Grantor and
the Bank are set forth in Paragraph 5.09 hereof.
WITNESSETH:
WHEREAS, Grantor is justly indebted to Bank on a loan (the "LOAN") in the
principal sum of SEVENTEEN MILLION DOLLARS ($17,000,000) or so much as may from
time to time be disbursed thereunder, as evidenced by a promissory note dated
April 25, 2001, payable to Bank with interest thereon as provided therein (the
"NOTE"), which Note has a maturity date of April 25, 2008; and
WHEREAS, Grantor may hereafter become indebted to Bank or to a subsequent holder
of this Deed to Secure Debt on loans or otherwise (the Bank and any subsequent
holder of this Deed to Secure Debt being referred to herein as "GRANTEE"); and
WHEREAS, the parties desire to secure the principal amount of the Note with
interest, and all renewals, extensions and modifications thereof, and all
refinancings of any part of the Note and any and all other additional
indebtedness of Grantor to Grantee, now existing or hereafter arising, whether
joint or several, due or to become due, absolute or contingent, direct or
indirect, liquidated or unliquidated, and any renewals, extensions,
modifications and refinancings thereof, and whether incurred or given as maker,
endorser, guarantor or otherwise, and whether the same be evidenced by note,
open account, assignment, endorsement, guaranty, pledge or otherwise (herein
"OTHER INDEBTEDNESS").
NOW, THEREFORE, the Grantor, in consideration of Grantee's making the Loan, and
to secure the prompt payment of same, with the interest thereon, and any
extensions, renewals, modifications and refinancings of same, and any charges
herein incurred by Grantee on account of Grantor, including but not limited to
attorneys' fees, and any and all Other Indebtedness as set forth above, and
further to secure
LOAN NO. _____________ THIS INSTRUMENT Xxxxxx X. Xxxxxxx
PREPARED BY: XXXXXX, XXXXXXX & XXXXXX, L.L.P.
1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
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the performance of the covenants, conditions and agreements hereinafter set
forth and set forth in the Note and set forth in all other documents evidencing,
securing or executed in connection with the Loan (this Deed to Secure Debt, the
Note and such other documents are sometimes referred to herein as the "LOAN
DOCUMENTS"), and as may be set forth in instruments evidencing or securing Other
Indebtedness (the "OTHER INDEBTEDNESS INSTRUMENTS") has given, granted,
bargained, sold and conveyed and does hereby give, grant, bargain, sell, convey
and confirm unto the Grantee, its successors and assigns, the following
described land, real estate, estates, buildings, improvements, fixtures,
furniture, and personal property (which together with any additional such
property in the possession of the Grantee or hereafter acquired by the Grantor
and subject to the lien of this Deed to Secure Debt, or intended to be so, as
the same may be constituted from time to time is hereinafter sometimes referred
to as the " PROPERTY") to-wit:
(A) All that tract or parcel or parcels of land and estates
particularly described on EXHIBIT A attached hereto and made a
part hereof (the "LAND");
(B) All buildings, structures, and improvements of every nature
whatsoever now or hereafter situated on the Land, and all
fixtures, fittings, building materials, machinery, equipment,
furniture and furnishings and personal property of every
nature whatsoever now or hereafter owned by the Grantor and
used or intended to be used in connection with or with the
operation of said property, buildings, structures or other
improvements, including all extensions, additions,
improvements, betterments, renewals, substitutions,
replacements and accessions to any of the foregoing, whether
such fixtures, fittings, building materials, machinery,
equipment, furniture, furnishings and personal property
actually are located on or adjacent to the Land or not, and
whether in storage or otherwise, and wheresoever the same may
be located (the "IMPROVEMENTS");
(C) All accounts, general intangibles, contracts and contract
rights relating to the Land and Improvements, whether now
owned or existing or hereafter created, acquired or arising,
including without limitation, all construction contracts,
architectural services contracts, management contracts,
leasing agent contracts, purchase and sales contracts, put or
other option contracts, and all other contracts and agreements
relating to the construction of improvements on, or the
operation, management and sale of all or any part of the Land
and Improvements;
(D) Together with all easements, rights of way, gores of land,
streets, ways, alleys, passages, sewer rights, waters, water
courses, water rights and powers, and all estates, leases,
subleases, licenses, rights, titles, interests, privileges,
liberties, tenements, hereditaments, and appurtenances
whatsoever, in any way belonging, relating or appertaining to
any of the property hereinabove described, or which hereafter
shall in any way belong, relate or be appurtenant thereto,
whether now owned or hereafter acquired by the Grantor, and
the reversion and reversions, remainder and remainders, rents,
issues and profits thereof, and all the estate, right, title,
interest, property, possession, claim and demand whatsoever at
law, as well as in equity, of the Grantor of, in and to the
same, including but not limited to:
(I) All rents, royalties, profits, issues and revenues of
the Land and Improvements from time to time accruing,
whether under leases or tenancies now existing or
hereafter created; and
(II) All judgments, awards of damages and settlements
hereafter made resulting from condemnation
proceedings or the taking of the Land and
Improvements or any part thereof under the power of
eminent domain, or for any damage (whether caused by
such taking or otherwise) to the Land and
Improvements or any part thereof, or to any rights
appurtenant thereto, including any award for change
of grade or streets. Grantee hereby is authorized on
behalf of and in the name of Grantor to execute and
deliver valid acquittances for, and appeal from, any
such judgments or awards. Grantee may apply all such
sums or any part thereof so received, after the
payment of all its expenses, including costs and
attorneys' fees, on any of the indebtedness secured
hereby in such manner as it elects or, at its option,
the entire amount or any part thereof so received may
be released;
(E) All cash and non-cash proceeds and all products of any of the
foregoing items or types of property described in (a), (b),
(c) or (d) above, including, but not limited to, all
insurance, contract and tort proceeds and claims, and
including all inventory, accounts, chattel paper, documents,
instruments, equipment, fixtures, consumer goods and general
intangibles acquired with cash proceeds of any of the
foregoing items or types of property described in (a), (b),
(c) or (d) above.
TO HAVE AND TO HOLD the Property and all parts thereof unto the Grantee, its
successors and assigns, in fee simple forever, subject, however. to the terms
and conditions herein.
This Deed to Secure Debt is intended to operate and is to be construed
as a deed passing the title to the Property to Grantee and is made under those
provisions of the existing laws of the State of Georgia relating to deeds to
secure debt, and not as a mortgage, and is given to secure the payment of the
following described indebtedness (hereinafter referred to collectively as the
"Secured Indebtedness"):
(a) The debt evidenced by the Note, together with any and all
renewals, modifications, consolidations and extensions of the indebtedness
evidenced by the Note; and
(b) Any and all additional advances made by Grantee to protect or
preserve the Property or the security interest created hereby on the Premises,
or for taxes, assessments or insurance premiums as hereinafter provided, or for
performance of any of Grantor's
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obligations hereunder or for any other purpose provided herein (whether or not
the original Grantor remains the owner of the Property at the time of such
advances);
(c) All obligations of Grantor to Grantee under that certain Loan
Agreement of even date herewith by and between Grantor and Grantee ("Loan
Agreement"); and
(d) All obligations of Grantor to Grantee under any agreement
between Grantor and Grantee or any affiliate of Grantee, now existing or
hereafter entered into with respect to the Loan, which provides for an interest
rate or commodity swap, cap, floor, collar, forward foreign exchange
transaction, currency swap, cross-currency rate swap, currency option, or any
combination of, or option with respect to, these or similar transactions, for
the purpose of hedging Grantor's exposure to fluctuations in interest rates,
currency calculations or commodity prices (collectively the "Swap Agreement").
Should the Secured Indebtedness be paid according to the tenor and effect
thereof when the same shall become due and payable, and should Grantor perform
all covenants herein contained in a timely manner, then this Deed to Secure Debt
shall be canceled and surrendered.
AND the Grantor further represents, warrants, covenants and agrees with the
Grantee as follows:
ARTICLE I
GENERAL
1.01 PERFORMANCE OF DEED TO SECURE DEBT, NOTE AND LOAN DOCUMENTS. The
Grantor shall perform, observe and comply with all provisions hereof, of the
Note, of the other Loan Documents, and of the Other Indebtedness Instruments,
and shall duly and punctually pay to the Grantee the sum of money expressed in
the Note, with interest thereon, and all other sums required to be paid by the
Grantor pursuant to the provisions of this Deed to Secure Debt, of the Note, of
the other Loan Documents, and of the Other Indebtedness Instruments, all without
any deductions or credit for taxes or other similar charges paid by the Grantor.
1.02 WARRANTY OF TITLE. Grantor hereby warrants that it is lawfully seized
of an indefeasible estate in fee simple in the land and real property hereby
mortgaged, or is lawfully seized of such other estate or interest as is
described on EXHIBIT A hereto, and has good and absolute title to all existing
personal property hereby granted as security, and has good right, full power and
lawful authority to sell, convey and grant a security interest in the same in
the manner and form aforesaid; that the same is free and clear of all grants,
reservations, security interests, liens, charges, and encumbrances whatsoever,
subject to those matters set forth on EXHIBIT B attached hereto and by this
reference incorporated herein (the "Permitted Exceptions"), including, as to the
personal property and fixtures, conditional sales contracts, chattel mortgages,
security agreements, financing statements, and anything of a similar nature, and
that Grantor shall and will warrant and forever defend the title thereto and the
quiet use and enjoyment thereof unto the Grantee, their respective heirs,
successors and assigns, against the lawful claims of all persons whomsoever,
subject to the Permitted Exceptions.
1.03 FUTURE ADVANCES, REVOLVING AND OPEN-END LOANS, AND OTHER DEBTS. It is
expressly understood that this Deed to Secure Debt is given to and does secure
not only the Loan and the Note and future obligations and advances incurred
thereunder, but also any and all present and future Other Indebtedness,
obligations and liabilities, direct or contingent, of the Grantor to the
Grantee, whether now existing or hereafter arising, and any and all extensions,
renewals, modifications and refinancings of same, or any part thereof, whether
the same be evidenced by note, open account, assignment, endorsement, guaranty,
pledge or otherwise. The Loan and the Other Indebtedness may, if provided in the
applicable loan instruments, provide for revolving or open-end loans and
advances, all of which shall be secured by this Deed to Secure Debt.
1.04 MONTHLY TAX DEPOSIT. After the occurrence of an Event of Default, and
if required by Grantee, Grantor shall pay on the first day of each month
one-twelfth (1/12) of the yearly taxes on the Property, as estimated by Grantee,
in addition to each regular installment of principal and interest. Such sums
shall not draw interest and shall not be, nor be deemed to be, trust funds, but
may be commingled with the general funds of Grantee. Grantor agrees to pay
Grantee the amount of any deficiency necessary to enable Grantee to pay such
taxes when due. Such sums may be applied by the Grantee to the reduction of the
indebtedness secured hereby in any manner selected by Grantee if an Event of
Default shall occur under this Deed to Secure Debt or under the Note, any of the
other Loan Documents, or any of the Other Indebtedness Instruments, but, unless
otherwise agreed by the Grantee in writing, no application of tax deposits to
the Note, to Other Indebtedness, or to other obligations secured hereby, shall
delay, reduce, alter or otherwise affect any regularly scheduled payment with
respect to the Loan, the Other Indebtedness, or any such other obligations.
1.05 OTHER TAXES, UTILITIES AND LIENS.
(A) The Grantor shall pay promptly, when and as due, and, if
requested, will exhibit promptly to the Grantee receipts for
the payment of all taxes, assessments, water rates, utility
charges, dues, charges, fines, penalties, costs and other
expenses incurred, and impositions of every nature whatsoever
imposed, levied or assessed or to be imposed, levied or
assessed upon or against the Property or any part thereof or
upon the revenues, rents, issues and profits of the Property
or arising in respect of the occupancy, use or possession
thereof, or upon the interest of the Grantee in the Property
(other than any of
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the same for which provision has been made in Paragraph 1.04
of this Article I), or any charge which, if unpaid, would
become a lien or charge upon the Property.
(B) The Grantor promptly shall pay or bond and shall not suffer
any mechanic's, laborer's, statutory or other lien to be
created or to remain outstanding upon any of the Property.
(C) In the event of the passage of any state, federal, municipal
or other governmental law, order, rule or regulation,
subsequent to the date hereof, in any manner changing or
modifying the laws now in force governing the taxation of
mortgages or debts secured by mortgages or the manner of
collecting taxes, then Grantor immediately shall pay any
increased taxes if allowed by law, and if Grantor fails to pay
such additional taxes, or if Grantor is prohibited from paying
such taxes, or if Grantee in any way is adversely affected by
such law, order, rule or regulation, then in any of such
events, all indebtedness secured by this Deed to Secure Debt
and all interest accrued thereon shall without notice become
due and payable forthwith at the option of the Grantee.
1.06 INSURANCE.
(A) The Grantor shall procure for, deliver to, and maintain for
the benefit of the Grantee during the term of this Deed to
Secure Debt insurance policies in such amounts as the Grantee
shall require, insuring the Property against fire, extended
coverage, war damage (if available), and such other insurable
hazards, casualties and contingencies as the Grantee may
require. During the construction period, Grantor shall procure
for, deliver to and maintain builder's risk/extended
multi-peril hazard insurance. After completion of construction
of the improvements on the Property and upon lease-up of the
Property, Grantor shall procure loss of rent insurance in an
amount equal to 100% of twelve (12) months' gross rental from
the Property. The form of such policies and the companies
issuing them shall be acceptable to the Grantee. All policies
shall contain a New York standard, non-contributory mortgagee
endorsement making losses payable to the Grantee, as
mortgagee. At least fifteen (15) days prior to the expiration
date of all such policies, renewals thereof satisfactory to
the Grantee shall be delivered to the Grantee. The Grantor
shall deliver to the Grantee receipts evidencing the payment
of all such insurance policies and renewals. In the event of
the foreclosure of this Deed to Secure Debt or any transfer of
title to the Property in partial or full extinguishment of the
indebtedness secured hereby, all right, title and interest of
the Grantor, or its assigns, in and to all insurance policies
then in force shall pass to the purchaser or grantee.
(B) The Grantee hereby is authorized and empowered, at its option,
to adjust or compromise any loss under any insurance policies
on the Property, and to collect and receive the proceeds from
any such policy or policies. Each insurance company hereby is
authorized and directed to make payment for all such losses
directly to the Grantee instead of to the Grantor and Grantee
jointly. After deducting from said insurance proceeds any
expenses incurred by Grantee in the collection or handling of
said funds, the Grantee may apply the net proceeds, at its
option, either toward repairing or restoring the improvements
on the Property, or as a credit on any portion of the
Grantor's indebtedness selected by Grantee, whether then
matured or to mature in the future, or at the option of the
Grantee, such sums either wholly or in part may be used to
repair such improvements, or to build new improvements in
their place or for any other purpose and in a manner
satisfactory to the Grantee, all without affecting the lien of
this Deed to Secure Debt for the full amount secured hereby
before such payment took place. Grantee shall not be liable to
Grantor or otherwise responsible for any failure to collect
any insurance proceeds due under the terms of any policy
regardless of the cause of such failure.
(C) After the occurrence of an Event of Default, and if required
by the Grantee, the Grantor shall pay on the first day of each
month, in addition to any regular installment of principal and
interest and other charges with respect to indebtedness
secured hereby, and the monthly tax deposit provided for in
Paragraph 1.04 hereof, one-twelfth (1/12) of the yearly
premiums for insurance maintained pursuant to the provisions
of this Paragraph 1.06. Such amount shall be used by Grantee
to pay such insurance premiums when due. Such added payments
shall not be, nor be deemed to be, trust funds, but may be
commingled with the general funds of the Grantee, and no
interest shall be payable in respect thereof. Upon demand of
the Grantee, the Grantor agrees to deliver to the Grantee such
additional moneys as are necessary to make up any deficiencies
in the amounts deposited by Grantor with Grantee pursuant to
this Paragraph 1.06 to enable the Grantee to pay such
insurance premiums when due. In the event of an Event of
Default hereunder or of a default by Grantor under the Note,
any other Loan Documents, or any Other Indebtedness
Instruments, the Grantee may apply such sums to the reduction
of the indebtedness secured hereby in any manner selected by
Grantee, but, unless otherwise agreed by the Grantee in
writing, no application of insurance proceeds to the Loan, to
Other Indebtedness, or to other obligations secured hereby,
shall delay, reduce, alter or otherwise affect any regularly
scheduled payment with respect to the Loan, the Other
Indebtedness, or any such other obligations.
1.07 CONDEMNATION. If all or any part of the Property shall be damaged or
taken through condemnation (which term when used in this Deed to Secure Debt
shall include any damage or taking by any governmental or private authority, and
any transfer by private sale in lieu thereof), either temporarily or
permanently, the entire indebtedness secured hereby shall at the option of the
Grantee become immediately due and payable. The Grantee shall be entitled to all
compensation, awards, and other payments or relief for any condemnation and
hereby is authorized, at its option, to commence, appear in and prosecute, in
its own or the Grantor's name, any action or proceeding relating to any
condemnation, and to settle or compromise any claim in connection therewith. All
such compensation, awards, damages, claims, rights of action and proceeds and
the
PAGE 4
right thereto are hereby assigned by the Grantor to the Grantee, which,
after deducting therefrom all its expenses, including attorneys' fees, may
release any moneys so received by it without affecting the lien of this Deed to
Secure Debt or may apply the same in such manner as the Grantee shall determine
to the reduction of the indebtedness secured hereby, and any balance of such
moneys then remaining shall be paid to the Grantor. The Grantor agrees to
execute such further assignments of any compensations, awards, damages, claims,
rights of action and proceeds as the Grantee may require. The Grantor promptly
shall notify the Grantee in the event of the institution of any condemnation or
eminent domain proceeding or in the event of any threat thereof. The Grantee
shall be entitled to retain, at the expense of the Grantor, its own legal
counsel in connection with any such proceedings or threatened proceedings.
Grantee shall be under no obligation to the Grantor or to any other person to
determine the sufficiency or legality of any condemnation award and may accept
any such award without question or further inquiry.
1.08 CARE OF THE PROPERTY.
(A) The Grantor will preserve and maintain the Property in good
condition and repair, and shall not commit or suffer any waste
and shall not do or suffer to be done anything which will
increase the risk of fire or other hazard to the Property or
any part thereof.
(B) Except as otherwise provided herein, no buildings, fixtures,
personal property, or other part of the Property shall be
removed, demolished or substantially altered without the prior
written consent of the Grantee. The Grantor may sell or
otherwise dispose of, free from the lien of this Deed to
Secure Debt, furniture, furnishings, equipment, tools,
appliances, machinery or appurtenances, subject to the lien
hereof which may become worn out, undesirable, obsolete,
disused or unnecessary for use in the operation of the
Property, not exceeding in value at the time of disposition
thereof Five Thousand Dollars ($5,000.00) for any single
transaction, or a total of Twenty Thousand Dollars
($20,000.00) in any one year, upon replacing the same with, or
substituting for the same, free and clear of all liens and
security interests except those created by the Loan Documents
or Other Indebtedness Instruments, other furniture,
furnishings, equipment, tools, appliances, machinery or
appurtenances not necessarily of the same character, but of at
least equal value and of equal or greater utility in the
operation of the Property, and costing not less than the
amount realized from the property sold or otherwise disposed
of. Such substitute furniture, furnishings, equipment, tools,
appliances, machinery and appurtenances shall forthwith
become, without further action, subject to the provisions of
this Deed to Secure Debt.
(C) If the Property or any part thereof is damaged by fire or any
other cause, the Grantor shall give immediate written notice
of the same to the Grantee.
(D) The Grantee hereby is authorized, upon 24 hours prior notice,
to enter upon and inspect the Property, and to inspect the
Grantor's or Grantor's agent's records with respect to the
ownership, use, management and operation of the Property, at
any time during normal business hours.
(E) If all or any part of the Property shall be damaged by fire or
other casualty, the Grantor promptly shall restore the
Property to the equivalent of its original condition,
regardless of whether or not there shall be any insurance
proceeds therefor; provided, however, that if there are
insurance proceeds, the Grantor shall not be required to
restore the Property as aforesaid unless the Grantee shall
apply any net proceeds from the casualty in question and held
by Grantee, as allowed under Paragraph 1.06, toward restoring
the damaged improvements.
1.09 FURTHER ASSURANCES; AFTER-ACQUIRED PROPERTY.
(A) At any time, and from time to time, upon request by the
Grantee, the Grantor, at Grantor's expense, will make, execute
and deliver or cause to be made, executed and delivered to the
Grantee and, where appropriate, to cause to be recorded and/or
filed and from time to time thereafter to be re-recorded
and/or refiled at such time and in such offices and places as
shall be deemed desirable by the Grantee any and all such
other and further mortgages, instruments of further assurance,
certificates and other documents as may, in the opinion of the
Grantee, be necessary or desirable in order to
effectuate, complete, or perfect, or to continue and preserve
the obligation of the Grantor under the Note and this Deed to
Secure Debt, and the priority of this Deed to Secure Debt as a
first and prior security title to all of the Property, whether
now owned or hereafter acquired by the Grantor. Upon any
failure by the Grantor so to do, the Grantee may make,
execute, and record any and all such mortgages, instruments,
certificates, and documents for and in the name of the
Grantor, and the Grantor hereby irrevocably appoints the
Grantee the agent and attorney-in-fact of the Grantor so to
do. The rights and title hereunder automatically will attach,
without further act, to all after-acquired property (except
consumer goods, other than accessions, not acquired within ten
(10) days after the Grantee has given value under the Note)
attached to and/or used in the operation of the Property or
any part thereof.
(B) Without limitation to the generality of the other provisions
of this Deed to Secure Debt, including subparagraph (a) of
this Paragraph 1.09, it hereby expressly is covenanted, agreed
and acknowledged that the lien and rights hereunder
automatically will attach to any further, greater, additional,
or different estate, rights, titles or interests in or to any
of the Property at any time acquired by the Grantor by
whatsoever means, including that in the event the Grantor is
the owner of an estate or interest in the Property or any part
thereof (such as, for example, as the lessee or tenant) other
than as the fee simple owner thereof, and prior to the
satisfaction of record of this Deed to Secure Debt the Grantor
obtains or otherwise
PAGE 5
acquires such fee simple or other estate, then such further,
greater, additional, or different estate in the Property, or
a part thereof, shall automatically, and without any further
action or filing or recording on the part of the Grantor or
the Grantee or any other person or entity, be and become
subject to this Deed to Secure Debt and the lien hereof. In
consideration of Grantee's making the Loan as aforesaid, and
to secure the Loan, the Other Indebtedness and obligations
set forth above, Grantor hereby grants, bargains, sells and
conveys to Grantee, on the same terms as set forth in this
Deed to Secure Debt and intended to be a part hereof, all
such after-acquired property and estates.
1.10 ADDITIONAL SECURITY. The Grantee also shall have and hereby is granted
a security interest in all monies, securities and other property of the Grantor,
now or hereafter assigned, held, received, or coming into the possession,
control, or custody of the Grantee by or for the account of the Grantor
(including indebtedness due from the Grantee to the Grantor, and any and all
claims of Grantor against Grantee, at any time existing) whether expressly as
collateral security, custody, pledge, transmission, collection or for any other
purpose, and also upon any and all deposit balances, including any dividends
declared, or interest accruing thereon, and proceeds thereof. On an Event of
Default, the Grantee may, in addition to any other rights provided by this Deed
to Secure Debt or any of the other Loan Documents, but shall not be obligated
to, apply to the payment of the Loan or Other Indebtedness secured hereby, and
in such manner as the Grantee may determine, any such monies, securities or
other property held or controlled by the Grantee. No such application of funds
shall, unless otherwise expressly agreed by the Grantee in writing, reduce,
alter, delay or otherwise affect any regularly scheduled payment with respect to
the Loan or such Other Indebtedness or obligations.
1.11 LEASES AFFECTING PROPERTY. The Grantor shall comply with and observe
its obligations as landlord or tenant under all leases affecting the Property or
any part thereof. If requested by Grantee, Grantor shall furnish Grantee with
executed copies of all leases now or hereafter existing on the Property; and all
leases now or hereafter entered into will be in form and substance subject to
the approval of Grantee. Grantor shall not accept payment of rent more than one
(1) month in advance without the express written consent of Grantee. If
requested by the Grantee, the Grantor shall execute and deliver to Grantee, as
additional security, such other documents as may be requested by Grantee to
evidence further the assignment to Grantee hereunder, and to assign any and all
such leases whether now existing or hereafter created, including, without
limitation, all rents, royalties, issues and profits of the Property from time
to time accruing. The Grantor shall not cancel, surrender or modify any lease
affecting the Property or any part thereof without the written consent of the
Grantee; provided, that if the Property is a residential apartment complex, this
paragraph shall not apply to leases (a) entered into on forms approved by
Grantee, or (b) modified, amended or terminated in the ordinary course of
business of operating a residential apartment complex.
1.12 EXPENSES. The Grantor shall pay or reimburse the Grantee for all
reasonable attorneys' fees, costs and expenses incurred by the Grantee in
connection with the collection of the indebtedness secured hereby or the
enforcement of any rights or remedies provided for in this Deed to Secure Debt,
in any of the other Loan Documents or the Other Indebtedness Instruments, or as
may otherwise be provided by law, or incurred by Grantee in any proceeding
involving the estate of a decedent or an insolvent, or in any action, proceeding
or dispute of any kind in which the Grantee is made a party, or appears as party
plaintiff or defendant, affecting this Deed to Secure Debt, the Note, any of the
other Loan Documents, any of the Other Indebtedness Instruments, Grantor or the
Property, including but not limited to the foreclosure of this Deed to Secure
Debt, any condemnation action involving the Property, any environmental
condition of or affecting the Property, or any action to protect the security
hereof; and any such amounts paid or incurred by the Grantee shall be added to
the indebtedness secured hereby and shall be further secured by this Deed to
Secure Debt.
1.13 PERFORMANCE BY GRANTEE OF DEFAULTS BY GRANTOR. If the Grantor shall
default in the payment of any tax, lien, assessment or charge levied or assessed
against the Property, or otherwise described in Paragraphs 1.04 and 1.05 hereof;
in the payment of any utility charge, whether public or private; in the payment
of insurance premiums; in the procurement of insurance coverage and the delivery
of the insurance policies required hereunder; or in the performance or
observance of any other covenant, condition or term of this Deed to Secure Debt,
of the Note, of any of the other Loan Documents, or of any of the Other
Indebtedness Instruments, then the Grantee, at its option, may perform or
observe the same; and all payments made for costs or expenses incurred by the
Grantee in connection therewith shall be secured hereby and shall be, without
demand, immediately repaid by the Grantor to the Grantee with interest thereon
calculated in the manner set forth in the Note, and at the default interest
rate specified in the Note, or, if no default interest rate is specified, then
at the rate set forth in the Note, plus two percentage points (2%). The Grantee
shall be the sole judge of the legality, validity and priority of any such tax,
lien, assessment, charge, claim and premium, of the necessity for any such
actions and of the amount necessary to be paid in satisfaction thereof. The
Grantee hereby is empowered to enter and to authorize others to enter upon the
Property or any part thereof for the purpose of performing or observing any
such defaulted covenant, condition or term, without thereby becoming liable to
the Grantor or any person in possession holding under the Grantor for trespass
or otherwise.
1.14 BOOKS AND RECORDS. The Grantor shall keep and maintain at all times
full, true and accurate books of accounts and records, adequate to reflect
correctly the results of the operation of the Property. Upon request of the
Grantee, the Grantor shall furnish to the Grantee (i) within one hundred twenty
(120) days after the end of the Grantor's fiscal year a balance sheet and a
statement of income and expenses, both in reasonable detail and form
satisfactory to Grantee and certified by a Certified Public Accountant, and (ii)
within ten (10) days after request therefor from Grantee, a rent schedule of the
Property, certified by the Grantor, showing the name of each tenant, and for
each tenant, the space occupied, the lease expiration date and the rent paid.
1.15 ESTOPPEL AFFIDAVITS. The Grantor within ten (10) days after written
request from the Grantee shall furnish a written statement, duly acknowledged,
setting forth the unpaid principal of and interest on the Loan and Other
Indebtedness and whether or not any offsets or defenses exist against any
principal and interest.
PAGE 6
1.16 ALIENATION OR SALE OF PROPERTY. The Grantor shall not sell, assign,
mortgage, encumber, grant a security interest in or otherwise convey all or any
part of the Property without obtaining the express written consent of the
Grantee at least thirty (30) days prior to such conveyance. If Grantor should
sell, assign, mortgage, encumber, grant a security interest in or convey all, or
any part, of the Property without such consent by Grantee, then, in such event,
the entire balance of the indebtedness (including the Loan and all Other
Indebtedness) secured by this Deed to Secure Debt and all interest accrued
thereon (or such parts as Grantee may elect) shall without notice become due and
payable forthwith at the option of the Grantee. Notwithstanding anything to the
contrary in the foregoing, Grantor shall have the right, without prior consent
of Grantee but with written notice thereof, to transfer the Property to Xxxxxxx
Realty Investors, Inc.
1.17 ENVIRONMENTAL AND COMPLIANCE MATTERS. Grantor represents, warrants and
covenants as follows:
(A) Based on the Phase I Environmental Site Assessment prepared by
Law Engineering dated April 6, 1998 (the "Environmental
Report") and except as set forth therein, no Hazardous
Materials (hereinafter defined) have been, are, or will be,
while any part of the indebtedness secured by this Deed to
Secure Debt remains unpaid, contained in, treated, stored,
handled, generated, located on, discharged from, or disposed
of on, or constitute a part of, the Property except in
conformance with environmental law. As used herein, the term
"HAZARDOUS MATERIALS" includes, without limitation, any
asbestos, urea formaldehyde foam insulation, flammable
explosives, radioactive materials, hazardous materials,
hazardous wastes, hazardous or toxic substances, or related or
unrelated substances or materials defined, regulated,
controlled, limited or prohibited in the Comprehensive
Environmental Response Compensation and Liability Act of 1980
("CERCLA") (42 U.S.C. Sections 9601, et seq.), the Hazardous
Materials Transportation Act (49 U.S.C. Sections 1801, et
seq.), the Resource Conservation and Recovery Act ("RCRA") (42
U.S.C. Sections 6901, et seq.), the Clean Water Act (33 U.S.C.
Sections 1251, et seq.), the Clean Air Act (42 U.S.C. Sections
7401, et seq.), the Toxic Substances Control Act (15 U.S.C.
Sections 2601, et seq.), each such Act as amended from time to
time, and in the rules and regulations adopted and
publications promulgated pursuant thereto, and in the rules
and regulations of the Occupational Safety and Health
Administration ("OSHA") pertaining to occupational exposure to
asbestos, as amended from time to time, or in any other
federal, state or local environmental law, ordinance, rule, or
regulation now or hereafter in effect;
(B) Based on the Environmental Report and except as set forth
therein, no underground storage tanks, whether in use or not
in use, are located in, on or under any part of the Property;
(C) Based on the Environmental Report and except as set forth
therein, all of the Property complies and will comply in all
respects with applicable environmental laws, rules,
regulations, and court or administrative orders;
(D) There are no pending claims or threats of claims by private or
governmental or administrative authorities relating to
environmental impairment, conditions, or regulatory
requirements with respect to the Property;
(E) The Grantor promptly shall comply with all present and future
laws, ordinances, rules, regulations, orders and decrees of
any governmental authority affecting the Property or any part
thereof. Without limiting the foregoing, the Grantor
represents and covenants that the Property is in present
compliance with, and in the future shall comply with, as
applicable, the Americans With Disabilities Act of 1990,
("ADA") (42 U.S.C. Sections 12101, et seq), as amended from
time to time, and in the rules and regulations adopted and
publications promulgated pursuant thereto.
(F) Grantor shall give immediate oral and written notice to
Grantee of its receipt of any notice of a violation of any
law, rule or regulation covered by this Paragraph 1.17, or of
any notice of other claim relating to the environmental or
physical condition of the Property, or of its discovery of any
matter which would make the representations, warranties and/or
covenants herein to be inaccurate or misleading in any
respect.
Grantor agrees to and does hereby indemnify and hold Grantee harmless from all
loss, cost, damage, claim and expense incurred by Grantee on account of (i) the
violation of any representation or warranty set forth in this Paragraph 1.17,
(ii) Grantor's failure to perform any obligations of this Paragraph 1.17, (iii)
Grantor's or the Property's failure to fully comply with all environmental laws,
rules and regulations, with all occupational health and safety laws, rules and
regulations, or with the ADA, as applicable, or (iv) any other matter related to
environmental or physical conditions on, under or affecting the Property. This
indemnification shall survive the closing of the Loan, payment of the Loan, the
exercise of any right or remedy under any Loan Document, and any subsequent sale
or transfer of the Property, and all similar or related events or occurrences.
However, this indemnification shall not apply to any new Hazardous Materials
first stored, generated or placed on the Property after the acquisition of title
to the Property by Grantee through foreclosure or deed in lieu of foreclosure or
after purchase by a third party after the Loan has been paid in full.
1.18 INSPECTION RIGHTS AND EASEMENTS. In addition to other inspection rights
of Grantee, the Grantor shall and hereby does grant and convey to the Grantee,
its agents, representatives, contractors, and employees, to be exercised by
Grantee following an Event of Default hereunder or under any of the other Loan
Documents, an easement and license to enter on the Property at any time upon 24
hours prior notice for the purpose of making such audits, tests, inspections,
and examinations, including, without limitation, inspection of buildings and
improvements, subsurface exploration and testing and groundwater testing (herein
"INSPECTIONS"), as the Grantee, in its sole discretion, deems necessary,
convenient, or proper to determine the condition and use of the Property, to
make an inventory of the Property, and to determine
PAGE 7
whether the ownership, use and operation of the Property are in compliance
with all federal, state, and local laws, ordinances, rules, and regulations,
including, without limitation, environmental laws, health and public
accommodation laws, and the ADA, as applicable, and ordinances, rules and
regulations relating thereto. Notwithstanding the grant of the above easement
and license to the Grantee, the Grantee shall have no obligation to perform any
such Inspections, or to take any remedial action. All the costs and expenses
incurred by the Grantee with respect to any Inspections which the Grantee may
conduct or take pursuant to this Paragraph 1.18, including, without limitation,
the fees of any engineers, laboratories, and contractors, shall be repaid by
the Grantor, with interest, and shall be secured by this Deed to Secure Debt
and the other Loan Documents.
ARTICLE II
ASSIGNMENT OF RENTS AND LEASES
2.01 ASSIGNMENT. Grantor, in consideration of Grantee's making the Loan as
aforesaid and for other good and valuable consideration, and to secure the
prompt payment of same, with the interest thereon, and any extensions, renewals,
modifications and refinancings of same, and any charges herein incurred by
Grantee on account of Grantor, including but not limited to attorneys' fees, and
any and all Other Indebtedness, and further to secure the performance of the
covenants, conditions and agreements hereinafter set forth and set forth in the
Note, in the other Loan Documents, and in the Other Indebtedness Instruments,
does hereby sell, assign and transfer unto the Grantee all leases, subleases and
lease guaranties of or relating to all or part of the Property, whether now
existing or hereafter created or arising, including without limitation those
certain leases, if any, specifically described on an exhibit to this Deed to
Secure Debt, and all the rents, issues and profits now due and which may
hereafter become due under or by virtue of any such lease, whether written or
verbal, or any letting of, or of any agreement for the use or occupancy of the
Property or any part thereof, which may have been heretofore or may be hereafter
made or agreed to or which may be made or agreed to by the Grantee under the
powers herein granted, it being the intention of the parties to hereby establish
an absolute transfer and assignment of all the said leases, subleases, lease
guaranties and agreements, and all the avails thereof, to the Grantee, and the
Grantor does hereby appoint irrevocably the Grantee its true and lawful attorney
in its name and stead (with or without taking possession of the aforesaid
Property as hereinafter provided), to rent, lease or let all or any portion of
the Property to any party or parties at such rental and upon such term, in its
discretion as it may determine, and to collect all of said avails, rents, issues
and profits arising from or accruing at any time hereafter, and all now due, or
that may hereafter become due under each and all of the leases, subleases, lease
guaranties and agreements, written or verbal, or other tenancy existing or which
may hereafter exist on the Property, with the same rights and powers and subject
to the same immunities, exoneration of liability and rights of recourse and
indemnity as the Grantee would have upon taking possession of the Property
pursuant to the provisions hereinafter set forth.
2.02 PREPAYMENT OF RENT. The Grantor represents and agrees that no rent has
been or will be paid by any person in possession of any portion of the Property
for more than one installment in advance and that the payment of none of the
rents to accrue for any portion of said Property has been or will be waived,
released, reduced, or discounted, or otherwise discharged or compromised by the
Grantor, except in the ordinary course of business. The Grantor waives any right
of setoff against any person in possession of any portion of the Property. The
Grantor agrees that it will not assign any of the rents or profits except to the
purchaser or grantee of the Property.
2.03 NOT MORTGAGEE IN POSSESSION; NO LIABILITY. Nothing herein contained
shall be construed as constituting the Grantee as "mortgagee in possession" in
the absence of the taking of actual possession of the Property by the Grantee
pursuant to the provisions hereinafter contained. In the exercise of the powers
herein granted the Grantee, no liability shall be asserted or enforced against
the Grantee, all such liability being expressly waived and released by the
Grantor.
2.04 PRESENT ASSIGNMENT. It is the intention of the parties that this
assignment of rents and leases shall be a present assignment; however, it is
expressly understood and agreed, anything herein contained to the contrary
notwithstanding, that Grantor shall have the right to collect the rents so long
as there exists no Event of Default under this Deed to Secure Debt, and provided
further, that Grantor's right to collect such rents shall terminate and cease
automatically upon the occurrence of any such Event of Default without the
necessity of any notice or other action whatsoever by Grantee.
2.05 NO OBLIGATION OF GRANTEE UNDER LEASES. The Grantee shall not be
obligated to perform or discharge, nor does it hereby undertake to perform or
discharge, any obligation, duty or liability under any leases, subleases or
rental agreements relating to the Property, and the Grantor shall and does
hereby agree to indemnify and hold the Grantee harmless of and from any and all
liability, loss or damage which it may or might incur under any leases,
subleases or agreements or under or by reason of the assignment thereof and of
and from any and all claims and demands whatsoever which may be asserted against
it by reason of any alleged obligations or undertakings on its part to perform
or discharge any of the terms, covenants or agreements contained in said leases,
subleases or agreements. Should the Grantee incur any such liability, loss or
damage, under said leases or under or by reason of the assignment thereof, or in
the defense of any claims or demands asserted against the Grantee in connection
with any one or more of said leases, subleases or agreements, the Grantor agrees
to reimburse the Grantee for the amount thereof, including costs, expenses and
reasonable attorneys' fees immediately upon demand, and until the same are fully
reimbursed by the Grantor, all such costs, expenses and attorneys' fees shall be
secured by the assignment hereunder and by this Deed to Secure Debt.
2.06 INSTRUCTION TO LESSEES. The Grantor does further specifically authorize
and instruct each and every present and future lessee, tenant, sublessee or
subtenant of the whole or any part of the Property to pay all unpaid rental
agreed upon in any lease, sublease or tenancy to the Grantee upon receipt of
demand from said Grantee to pay the same.
PAGE 8
2.07 DEFAULT (ASSIGNMENT). Upon the occurrence of any Event of Default, as
described in Paragraph 4.01 of this Deed to Secure Debt, then, in addition to
the right to demand and collect directly from tenants rents accruing from leases
of the Property, Grantee shall have all rights and remedies set forth in Article
IV or elsewhere in this Deed to Secure Debt.
ARTICLE III
SECURITY AGREEMENT
3.01 GRANT OF SECURITY INTEREST. Grantor (the "debtor" for purposes of the
Uniform Commercial Code), in consideration of Grantee's (the "secured party" for
purposes of the Uniform Commercial Code) making the Loan as aforesaid and for
other good and valuable consideration, and to secure the prompt payment of same,
with the interest thereon, and any extensions, renewals, modifications and
refinancings of same, and any charges herein incurred by Grantee on account of
Grantor, including but not limited to attorneys' fees, and any and all Other
Indebtedness, and further to secure the performance of the covenants, conditions
and agreements hereinafter set forth and set forth in the Note, in the other
Loan Documents, and in the Other Indebtedness Instruments, does hereby assign
and grant to Grantee title to and a security interest in such portions of the
Property the security interest in and disposition of which is governed by the
Uniform Commercial Code (the "COLLATERAL").
3.02 DEFINITIONS. All terms used herein which are defined in the Georgia
Uniform Commercial Code (the "UNIFORM COMMERCIAL CODE") shall have the same
meaning herein as in the Uniform Commercial Code unless otherwise indicated
herein.
3.03 FINANCING STATEMENTS. No financing statement covering any Collateral or
any proceeds thereof is on file in any public office, except for financing
statements specifically set forth on an addendum attached hereto, if any, and
except for the financing statements executed by Grantor as debtor and naming the
Grantee as secured party. At the Grantee's request, the Grantor will join with
Grantee in executing one or more financing statements pursuant to the Uniform
Commercial Code in form satisfactory to the Grantee, and will pay the cost of
filing the same in all public offices wherever filing is deemed by the Grantee
to be necessary or desirable. The Grantor authorizes the Grantee to prepare and
to file financing statements covering the Collateral signed only by the Grantee
and to sign the Grantor's signature to such financing statements in
jurisdictions where Grantor's signature is required. The Grantor promises to pay
to the Grantee the fees incurred in filing the financing statements, including
but not limited to mortgage recording taxes payable in connection with filings
on fixtures, which fees shall become part of the indebtedness secured hereby.
3.04 REPRESENTATIONS OF GRANTOR (COLLATERAL). With respect to all of the
Collateral, Grantor represents and warrants that:
(A) The Collateral is used or bought primarily for business
purposes;
(B) If the Loan is a construction loan, the Collateral is being
acquired and/or installed with the proceeds of the Note which
Grantee may disburse directly to the seller, contractor, or
subcontractor;
(C) All the Collateral will be kept at the address of Grantor
shown in Paragraph 5.09(a) or, if not, at the real property
described in EXHIBIT A hereto. Grantor promptly shall notify
Grantee of any change in the location of the Collateral.
Except for transactions in the ordinary course of Grantor's
business, Grantor, its agents or employees, will not remove
the Collateral from said location without the prior written
consent of the Grantee;
(D) If certificates of title are issued or outstanding with
respect to any of the Collateral, the Grantor shall cause the
Grantee's interest to be properly noted thereon; and
(E) Grantor's name has always been as set forth on the first page
of this Deed to Secure Debt, except as otherwise disclosed in
writing to the Grantee. Grantor promptly shall advise the
Grantee in writing of any change in Grantor's name.
3.05 ASSIGNMENT OF LIABILITIES. If at any time or times by sale, assignment,
negotiation, pledge, or otherwise, Grantee transfers any or all of the
indebtedness or instruments secured hereby, such transfer shall, unless
otherwise specified in writing, carry with it Grantee's rights and remedies
hereunder with respect to such indebtedness or instruments transferred, and the
transferee shall become vested with such rights and remedies whether or not they
are specifically referred to in the transfer. If and to the extent Grantee
retains any of such indebtedness or instruments, Grantee shall continue to have
the rights and remedies herein set forth with respect thereto.
3.06 NO OBLIGATION OF GRANTEE UNDER ASSIGNED CONTRACTS. The Grantee shall
not be obligated to perform or discharge, nor does it hereby undertake to
perform or discharge, any obligation, duty or liability under any contracts or
agreements relating to the Property, and the Grantor shall and does hereby agree
to indemnify and hold the Grantee harmless of and from any and all liability,
loss or damage which it may or might incur under any such contracts or
agreements or under or by reason of the assignment thereof and of and from any
and all claims and demands whatsoever which may be asserted against it by reason
of any alleged obligations or undertakings on its part to perform or discharge
any of the terms, covenants or agreements contained in said contracts or
agreements. Should the Grantee incur any such liability, loss or damage, under
said contracts or agreements or under or by reason of the assignment thereof, or
in the defense of any claims or demands asserted against the Grantee in
connection with any one or more of said contracts or agreements, the Grantor
agrees to reimburse the Grantee for the amount thereof, including costs,
expenses and reasonable attorneys' fees immediately upon demand, and until the
same are fully reimbursed by the Grantor, all such costs, expenses and
attorneys' fees shall be secured by the assignment hereunder and by this Deed to
Secure Debt.
PAGE 9
3.07 DEFAULT (SECURITY AGREEMENT). Upon the occurrence of any Event of
Default, as described in Paragraph 4.01 of this Deed to Secure Debt, the Grantee
shall have all rights and remedies set forth in Article IV or elsewhere in this
Deed to Secure Debt.
ARTICLE IV
EVENTS OF DEFAULT AND REMEDIES
4.01 EVENT OF DEFAULT. The term "EVENT OF DEFAULT," wherever used in this
Deed to Secure Debt, shall mean the occurrence or existence of any one or more
of the following events or circumstances:
(A) Failure by the Grantor to pay as and when due and payable any
installment of principal, interest or escrow deposit, or other
charge payable under the Note, this Deed to Secure Debt or
under any other Loan Document and failure to cure such default
within three (3) days after receipt of written notice thereof;
or
(B) Failure by the Grantor to duly observe any other covenant,
condition or agreement of this Deed to Secure Debt, of the
Note, of any of the other Loan Documents or of any of the
Other Indebtedness Instruments, or the occurrence of any other
Event of Default under any of the other Loan Documents or
Other Indebtedness Instruments and failure to cure such
default within thirty (30) days after receipt of written
notice thereof; or if such default is not capable of cure
within 30 days, and Grantor has commenced to cure within the
30-day period and is diligently pursuing same, then within a
reasonable period thereafter not to exceed in any event 90
days after receipt of notice; or
(C) The filing by the Grantor or any guarantor of any indebtedness
secured hereby or of any of Grantor's obligations hereunder,
of a voluntary petition in bankruptcy or the Grantor's or any
such guarantor's adjudication as a bankrupt or insolvent, or
the filing by the Grantor or any such guarantor of any
petition or answer seeking or acquiescing in any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief for itself under
any present or future federal, state or other statute, law or
regulation relating to bankruptcy, insolvency or other relief
for debtors, or the Grantor's or any such guarantor's seeking
or consenting to or acquiescence in the appointment of any
trustee, receiver or liquidator of the Grantor or any such
guarantor or of all or any substantial part of the Property or
of any or all of the rents, revenues, issues, earnings,
profits or income thereof, or of any interest or estate
therein, or the making of any general assignment for the
benefit of creditors or the admission in writing of its
inability to pay its debts generally as they become due; or
(D) The entry by a court of competent jurisdiction or any order,
judgment, or decree approving a petition filed against the
Grantor or any guarantor of any of the indebtedness secured
hereby or of any of Grantor's obligations hereunder, seeking
any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present
or future federal, state or other statute, law or regulation
relating to bankruptcy, insolvency or other relief for
debtors, which order, judgment or decree remains unvacated and
unstayed for an aggregate of sixty (60) days (whether or not
consecutive) from the date of entry thereof, or the
appointment of any trustee, receiver or liquidator of the
Grantor or any such guarantor or of all or any substantial
part of the Property or of any or all of the rents, revenues,
issues, earnings, profits or income thereof, or of any
interest or estate therein, without the consent or
acquiescence of the Grantor and/or any such guarantor which
appointment shall remain unvacated and unstayed for an
aggregate of sixty (60) days (whether or not consecutive); or
(E) The filing or enforcement of any other mortgage on the
Property or any part thereof, or of any interest or estate
therein; or
(F) A default or event of default under the Swap Agreement not
cured within the cure period, if any, set forth therein.
4.02 ACCELERATION OF MATURITY. If an Event of Default shall have occurred,
then the entire balance of the indebtedness (including but not limited to the
Loan and the Other Indebtedness) secured hereby with interest accrued thereon
shall, at the option of the Grantee, become due and payable without notice or
demand, time being of the essence. Any omission on the part of the Grantee to
exercise such option when entitled to do so shall not be considered as a waiver
of such right.
4.03 RIGHT OF GRANTEE TO ENTER AND TAKE POSSESSION.
(A) If an Event of Default shall have occurred and be continuing,
the Grantor, upon demand of the Grantee, shall forthwith
surrender to the Grantee the actual possession of the
Property, and if and to the extent permitted by law, the
Grantee or its agents may enter and take and maintain
possession of all the Property, together with all the
documents, books, records, papers and accounts of the Grantor
or then owner of the Property relating thereto, and may
exclude the Grantor and its agents and employees wholly
therefrom.
PAGE 10
(B) Upon every such entering upon or taking of possession, the
Grantee, as attorney-in-fact or agent of the Grantor, or in
its own name as mortgagee and under the powers herein granted,
may hold, store, use, operate, manage and control the Property
(or any portion thereof selected by Grantee) and conduct the
business thereof either personally or by its agents, and, from
time to time (i) make all necessary and proper maintenance,
repairs, renewals, replacements, additions, betterments and
improvements thereto and thereon and purchase or otherwise
acquire additional fixtures, personalty and other property;
(ii) insure or keep the Property (or any portion thereof
selected by Grantee) insured; (iii) manage and operate the
Property (or any portion thereof selected by Grantee) and
exercise all the rights and powers of the Grantor in its name
or otherwise, with respect to the same, including legal
actions for the recovery of rent, legal dispossessory actions
against tenants holding over and legal actions in distress of
rent, and with full power and authority to cancel or terminate
any lease or sublease for any cause or on any ground which
would entitle the Grantor to cancel the same, and to elect to
disaffirm any lease or sublease made subsequent to this Deed
to Secure Debt or subordinated to the lien hereof; (iv) enter
into any and all agreements with respect to the exercise by
others of any of the powers herein granted the Grantee, all as
the Grantee from time to time may determine to be to its best
advantage; and the Grantee may collect and receive all the
income, revenues, rents, issues and profits of the Property
(or any portion thereof selected by Grantee), including those
past due as well as those accruing thereafter, and, after
deducting (aa) all expenses of taking, holding, managing, and
operating the Property (including compensation for the
services of all persons employed for such purposes), (bb) the
cost of all such maintenance, repairs, renewals, replacements,
additions, betterments, improvements and purchases and
acquisitions, (cc) the cost of such insurance, (dd) such
taxes, assessments and other charges prior to this Deed to
Secure Debt as the Grantee may determine to pay, (ee) other
proper charges upon the Property or any part thereof, and (ff)
the reasonable compensation, expenses and disbursements of the
attorneys and agents of the Grantee, Grantee shall apply the
remainder of the moneys so received by the Grantee, first to
the payment of accrued interest under the Note; second to the
payment of tax deposits required in Paragraph 1.04; third to
the payment of any other sums required to be paid by Grantor
under this Deed to Secure Debt or under the other Loan
Documents; fourth to the payment of overdue installments of
principal on the Note; fifth to the payment of any sums due
under Other Indebtedness Instruments, whether principal,
interest or otherwise; and the balance, if any, as otherwise
required by law.
(C) Whenever all such Events of Default have been cured and
satisfied, the Grantee may, at its option, surrender
possession of the Property to the Grantor, or to whomsoever
shall be entitled to possession of the Property as a matter of
law. The same right of taking possession, however, shall exist
if any subsequent Event of Default shall occur and be
continuing.
4.04 RECEIVER.
(A) If an Event of Default shall have occurred and be continuing,
the Grantee, upon application to a court of competent
jurisdiction, shall be entitled, without notice and without
regard to the adequacy of any security for the indebtedness
hereby secured or the solvency of any party bound for its
payment, to the appointment of a receiver to take possession
of and to operate the Property and to collect the rents,
profits, issues, royalties and revenues thereof.
(B) The Grantor shall pay to the Grantee upon demand all costs and
expenses, including receiver's fees, attorneys' fees, costs
and agent's compensation, incurred pursuant to the provisions
contained in this Paragraph 4.04; and all such expenses shall
be secured by this Deed to Secure Debt.
4.05 RIGHTS OF A SECURED PARTY. Upon the occurrence of an Event of Default,
the Grantee, in addition to any and all remedies it may have or exercise under
this Deed to Secure Debt, the Note, any of the other Loan Documents, the Other
Indebtedness Instruments or under applicable law, may immediately and without
demand exercise any and all of the rights of a secured party upon default under
the Uniform Commercial Code, all of which shall be cumulative. Such rights shall
include, without limitation:
(A) The right to take possession of the Collateral without
judicial process and to enter upon any premises where the
Collateral may be located for the purposes of taking
possession of, securing, removing, and/or disposing of the
Collateral without interference from Grantor and without any
liability for rent, storage, utilities or other sums;
(B) The right to sell, lease, or otherwise dispose of any or all
of the Collateral, whether in its then condition or after
further processing or preparation, at public or private sale;
and unless the Collateral is perishable or threatens to
decline speedily in value or is of a type customarily sold on
a recognized market, Grantee shall give to Grantor at least
ten (10) days' prior notice of the time and place of any
public sale of the Collateral or of the time after which any
private sale or other intended disposition of the Collateral
is to be made, all of which Grantor agrees shall be reasonable
notice of any sale or disposition of the Collateral;
(C) The right to require Grantor, upon request of Grantee, to
assemble and make the Collateral available to Grantee at a
place reasonably convenient to Grantor and Grantee; and
(D) The right to notify account debtors, and demand and receive
payment therefrom.
PAGE 11
To effectuate the rights and remedies of Grantee upon default, Grantor does
hereby irrevocably appoint Grantee attorney-in-fact for Grantor, with full power
of substitution to sign, execute, and deliver any and all instruments and
documents and do all acts and things to the same extent as Grantor could do, and
to sell, assign, and transfer any collateral to Grantee or any other party.
4.06 POWER OF SALE. (a) If an Event of Default shall have occurred, Grantee,
at its option, may sell the Property or any part of the Property at one or more
public sale or sales before the door of the courthouse of the county in which
the Land or any part of the Land is situated, to the highest bidder for cash, in
order to pay the Secured Indebtedness and all expenses of 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. At any such
public sale, Grantee 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, Grantor hereby constitutes and appoints Grantee the agent
and attorney-in-fact of Grantor to make such sale and conveyance, and thereby to
divest Grantor of all right, title and equity that Grantor 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 upon Grantor. 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 hereby or by law for collection of the Secured Indebtedness
and shall not be exhausted by one exercise thereof but may be exercised until
full payment of all of the Secured Indebtedness. In the event of any sale under
this Deed to Secure Debt by virtue of the exercise of the powers herein granted,
or pursuant to any order in any judicial proceeding or otherwise, the Property
may be sold as an entirety or in separate parcels and in such manner or order as
Grantee in its sole discretion may elect, and if Grantee so elects, Grantee may
sell the personal property covered by this Deed to Secure Debt at one or more
separate sales in any manner permitted by the Uniform Commercial Code of the
State of Georgia, and one or more exercises of the powers herein granted shall
not extinguish nor exhaust such powers, until the entire Property are sold or
the Secured Indebtedness is paid in full. If the Secured Indebtedness is now or
hereafter further secured by any chattel mortgages, pledges, contracts of
guaranty, assignments of lease or other security instruments, Grantee may at
its option exhaust the remedies granted under any of said security instruments
either concurrently or independently, and in such order as Grantee may
determine.
(B) If an Event of Default shall have occurred, Grantee may, in
addition to and not in abrogation of the rights covered under Paragraph 4.06(a),
either with or without entry or taking possession as herein provided or
otherwise, proceed by a suit or suits in law or in equity or by any other
appropriate proceeding or remedy (i) to enforce payment of the Note or the
performance of any term, covenant, conditions or agreement of this Deed to
Secure Debt or any other right and (ii) to pursue any other remedy available to
it, all as Grantee at its sole discretion shall elect.
4.07 PURCHASE BY GRANTEE. Upon any foreclosure sale or sales of all or any
portion of the Property under the power herein granted, Grantee may bid for and
purchase the Property and shall be entitled to apply all or any part of the
Secured Indebtedness as a credit to the purchase price.
4.08 APPLICATION OF FORECLOSURE OR SALE PROCEEDS. The proceeds of any
foreclosure sale pursuant to Paragraph 4.05, or any sale pursuant to Paragraph
4.06, shall be applied as follows:
(A) First, to the costs and expenses of (i) retaking, holding,
storing and processing the Collateral and preparing the
Collateral or the Property (as the case may be) for sale, and
(ii) making the sale, including reasonable attorneys' fees for
such services as may be necessary in the collection of the
indebtedness secured by this Deed to Secure Debt or the
foreclosure of this Deed to Secure Debt;
(B) Second, to the repayment of any money, with interest thereon
to the date of sale at the applicable rate or rates specified
in the Note, this Deed to Secure Debt, the other Loan
Documents or the Other Indebtedness Instruments, as
applicable, which Grantee may have paid, or become liable to
pay, or which it may then be necessary to pay for taxes,
insurance, assessments or other charges, liens, or debts as
hereinabove provided, and as may be provided in the Note or
the other Loan Documents, such repayment to be applied in the
manner determined by Grantee;
(C) Third, to the payment of the indebtedness (including but not
limited to the Loan and the Other Indebtedness) secured
hereby, with interest to date of sale at the applicable rate
or rates specified in the Note, this Deed to Secure Debt, the
other Loan Documents or the Other Indebtedness Instruments, as
applicable, whether or not all of such indebtedness is then
due;
(D) Fourth, the balance, if any, shall be paid as provided by law.
4.09 WAIVERS. Grantor hereby waives any rights or remedies on account of any
extensions of time, releases granted or other dealings between Grantee and any
subsequent owner of the Property. The foregoing waiver shall not be construed as
affecting or otherwise amending the provisions of Paragraph 1.16 hereof. Upon
the occurrence of an Event of Default, neither Grantor nor anyone claiming
through or under Grantor shall or may set up, claim or seek to take advantage of
any appraisement, valuation, stay, extension, homestead, exemption or redemption
laws now or hereafter in force, to prevent or hinder the enforcement or
foreclosure of this Deed to Secure Debt, or the absolute sale of the Property,
or the final and absolute putting into possession thereof, immediately after
such sale, of the purchasers thereat, and Grantor, for
PAGE 12
itself and those claiming through or under it, hereby waives to the full extent
that it may lawfully so do, the benefit of all such laws, and any and all right
to have the Property marshalled upon any foreclosure of the lien hereof. Except
for the notices required in Paragraph 4.01 herein, Grantor further waives any
and all notices including, without limitation, notice of intention to
accelerate the indebtedness secured hereby and notice of acceleration of such
indebtedness.
4.10 SUITS TO PROTECT THE PROPERTY. The Grantee shall have power (a) to
institute and maintain such suits and proceedings as it may deem expedient to
prevent any impairment of the Property by any acts which may be unlawful or in
violation of this Deed to Secure Debt; (b) to preserve or protect its interest
in the Property and in the income, revenues, rents and profits arising
therefrom; and (c) to restrain the enforcement of or compliance with any
legislation or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if the enforcement of or compliance with
such enactment, rule or order would impair the security hereunder or be
prejudicial to the interest of the Grantee. In case Grantee voluntarily or
otherwise shall become a party to any suit or legal proceeding to protect the
Property or the security title of this Deed to Secure Debt, Grantee shall be
saved harmless and reimbursed by Grantor for any amounts paid, including all
reasonable costs, charges and attorneys' fees incurred in any such suit or
proceeding, which obligations shall be secured by this Deed to Secure Debt.
4.11 GRANTOR TO PAY THE NOTE ON ANY DEFAULT IN PAYMENT; APPLICATION OF
MONEYS BY GRANTEE. If default shall occur in the payment of any amount due under
this Deed to Secure Debt, the Note, any of the other Loan Documents or any of
the Other Indebtedness Instruments, or if any other Event of Default shall occur
under this Deed to Secure Debt, then, upon demand of the Grantee, the Grantor
shall pay to the Grantee the whole amount due and payable under the Note and
under all Other Indebtedness Instruments; and in case the Grantor shall fail to
pay the same forthwith upon such demand, the Grantee shall be entitled to xxx
for and to recover judgment for the whole amount so due and unpaid together
with costs, which shall include the reasonable compensation, expenses and
disbursements of the Grantee's agents and attorneys.
4.12 DELAY OR OMISSION NO WAIVER. No delay or omission of the Grantee or of
any holder of the Note to exercise any right, power or remedy accruing upon any
default shall exhaust or impair any such right, power or remedy or shall be
construed to be a waiver of any such default, or acquiescence therein; and every
right, power and remedy given by the Note, this Deed to Secure Debt, any of the
other Loan Documents, or the Other Indebtedness Instruments to the Grantee may
be exercised from time to time and as often as may be deemed expedient by the
Grantee.
4.13 NO WAIVER OF ONE DEFAULT TO AFFECT ANOTHER. No waiver of any default
hereunder, under any of the other Loan Documents, or under any of the Other
Indebtedness Instruments shall extend to or shall affect any subsequent or any
other then existing default or shall impair any rights, powers or remedies
consequent thereon.
If the Grantee (a) grants forbearance or an extension of time for the payment of
any indebtedness secured hereby; (b) takes other or additional security for the
payment thereof; (c) waives or does not exercise any right granted herein, in
the Note, in any of the other Loan Documents, or in any of the Other
Indebtedness Instruments; (d) releases any part of the Property from this Deed
to Secure Debt or otherwise changes any of the terms of this Deed to Secure
Debt, the Note, any of the other Loan Documents or the Other Indebtedness
Instruments; (e) consents to the filing of any map, plat, or replat of or
consents to the granting of any easement on, all or any part of the Property; or
(f) makes or consents to any agreement subordinating the priority of this Deed
to Secure Debt, any such act or omission shall not release, discharge, modify,
change, or affect the original liability under this Deed to Secure Debt, the
Note, the other Loan Documents, or the Other Indebtedness Instruments of the
Grantor or any subsequent purchaser of the Property or any part thereof, or any
maker, co-signer, endorser, surety or guarantor; nor shall any such act or
omission preclude the Grantee from exercising any right, power or privilege
herein granted or intended to be granted in the event of any other default then
made or of any subsequent default, nor, except as otherwise expressly provided
in an instrument or instruments executed by the Grantee shall the provisions of
this Deed to Secure Debt be altered thereby. In the event of the sale or
transfer by operation of law or otherwise of all or any part of the Property,
the Grantee, without notice to any person, corporation or other entity (except
notice shall be given to Grantor so long as Grantor remains liable under the
Note, this Deed to Secure Debt or any of the other Loan Documents) hereby is
authorized and empowered to deal with any such vendee or transferee with
reference to the Property or the indebtedness secured hereby, or with reference
to any of the terms or conditions hereof, or of the other Loan Documents, as
fully and to the same extent as it might deal with the original parties hereto
and without in any way releasing or discharging any of the liabilities or
undertakings hereunder.
4.14 DISCONTINUANCE OF PROCEEDINGS - POSITION OF PARTIES RESTORED. In case
the Grantee shall have proceeded to enforce any right or remedy under this Deed
to Secure Debt by foreclosure, entry or otherwise, and such proceedings shall
have been discontinued or abandoned for any reason, or shall have been
determined adversely to the Grantee, then and in every such case the Grantor and
the Grantee shall be restored to their former positions and rights hereunder,
and all rights, powers and remedies of the Grantee shall continue as if no such
proceeding had been taken.
4.15 REMEDIES CUMULATIVE. No right, power, or remedy conferred upon or
reserved to the Grantee by this Deed to Secure Debt is intended to be exclusive
of any other right, power or remedy, but each and every such right, power and
remedy shall be cumulative and concurrent and shall be in addition to any other
right, power and remedy given hereunder, or under the Note, any of the other
Loan Documents, the Other Indebtedness Instruments or now or hereafter existing
at law or in equity or by statute.
4.16 WAIVER OF GRANTOR'S RIGHTS. BY EXECUTION OF THIS DEED, GRANTOR
EXPRESSLY: (A) ACKNOWLEDGES THE RIGHT OF GRANTEE TO ACCELERATE THE INDEBTEDNESS
EVIDENCED BY THE NOTE AND ANY OTHER SECURED INDEBTEDNESS AND THE POWER OF
ATTORNEY GIVEN HEREIN TO GRANTEE TO SELL THE
PAGE 13
PREMISES BY NONJUDICIAL FORECLOSURE UPON DEFAULT BY GRANTOR WITHOUT ANY
JUDICIAL HEARING AND WITHOUT ANY NOTICE OTHER THAN SUCH NOTICE (IF ANY) AS IS
SPECIFICALLY REQUIRED TO BE GIVEN UNDER THE PROVISIONS OF THIS DEED; (B) WAIVES
ANY AND ALL RIGHTS WHICH GRANTOR MAY HAVE UNDER THE CONSTITUTION OF THE UNITED
STATES OF AMERICA (INCLUDING, WITHOUT LIMITATION, THE FIFTH AND FOURTEENTH
AMENDMENTS THEREOF), THE VARIOUS PROVISIONS OF THE CONSTITUTIONS FOR THE
SEVERAL STATES, OR BY REASON OF ANY OTHER APPLICABLE LAW, (1) TO NOTICE AND TO
JUDICIAL HEARING PRIOR TO THE EXERCISE BY GRANTEE OF ANY RIGHT OR REMEDY HEREIN
PROVIDED TO GRANTEE, EXCEPT SUCH NOTICE (IF ANY) AS IS SPECIFICALLY REQUIRED TO
BE GIVEN UNDER THE PROVISIONS OF THIS DEED, AND (2) CONCERNING THE APPLICATION,
RIGHTS OR BENEFITS OF ANY STATUTE OF LIMITATION OR ANY MORATORIUM,
REINSTATEMENT, MARSHALING, FORBEARANCE, APPRAISEMENT, VALUATION, STAY,
EXTENSION, HOMESTEAD, EXEMPTION OR REDEMPTION LAWS; (C) ACKNOWLEDGES THAT
GRANTOR HAS READ THIS DEED AND ANY AND ALL QUESTIONS OF GRANTOR REGARDING THE
LEGAL EFFECT OF THIS DEED AND ITS PROVISIONS HAVE BEEN EXPLAINED FULLY TO
GRANTOR, AND GRANTOR HAS CONSULTED WITH COUNSEL OF GRANTOR'S CHOICE PRIOR TO
EXECUTING THIS DEED; AND (D) ACKNOWLEDGES THAT ALL WAIVERS OF THE AFORESAID
RIGHTS OF GRANTOR HAVE BEEN MADE KNOWINGLY, INTENTIONALLY AND WILLINGLY BY
GRANTOR AS PART OF A BARGAINED-FOR LOAN TRANSACTION AND THAT THIS DEED IS VALID
AND ENFORCEABLE BY GRANTEE AGAINST GRANTOR IN ACCORDANCE WITH ALL THE TERMS AND
CONDITIONS HEREOF.
ARTICLE V
MISCELLANEOUS
5.01 BINDING EFFECT. Wherever in this Deed to Secure Debt one of the parties
hereto is named or referred to, the heirs, administrators, executors,
successors, assigns, distributees, and legal and personal representatives of
such party shall be included, and all covenants and agreements contained in this
Deed to Secure Debt by or on behalf of the Grantor or by or on behalf of Grantee
shall bind and inure to the benefit of their respective heirs, administrators,
executors, successors, assigns, distributees, and legal and personal
representatives, whether so expressed or not. Notwithstanding the foregoing, the
Grantor shall not be entitled to assign any of its rights, titles, and interests
hereunder, or to delegate any of its obligations, liabilities, duties, or
responsibilities hereunder, and will not permit any such assignment or
delegation to occur (voluntarily or involuntarily, or directly or indirectly),
without the prior written consent of the Grantee.
5.02 HEADINGS. The headings of the articles, sections, paragraphs and
subdivisions of this Deed to Secure Debt are for convenience of reference only,
are not to be considered a part hereof, and shall not limit or otherwise affect
any of the terms hereof. "Herein," "hereby," "hereunder," "hereof," and other
equivalent words or phrases refer to this Deed to Secure Debt and not solely to
the particular portion thereof in which any such word or phrase is used, unless
otherwise clearly indicated by the context.
5.03 GENDER; NUMBER. Whenever the context so requires, the masculine
includes the feminine and neuter, the singular includes the plural, and the
plural includes the singular.
5.04 INVALID PROVISIONS TO AFFECT NO OTHERS. In case any one or more of the
covenants, agreements, terms or provisions contained in this Deed to Secure
Debt, in the Note, in any of the other Loan Documents, or in the Other
Indebtedness Instruments shall be invalid, illegal or unenforceable in any
respect, the validity of the remaining covenants, agreements, terms or
provisions contained herein, and in the Note, in the other Loan Documents and in
the Other Indebtedness Instruments shall be in no way affected, prejudiced or
disturbed thereby.
5.05 LOAN DOCUMENTS. Wherever reference is made herein to this Deed to
Secure Debt, the Note, the Loan Documents, or the Other Indebtedness
Instruments, such reference shall include all renewals, extensions,
modifications and refinancings thereof.
5.06 INSTRUMENT UNDER SEAL. This Deed to Secure Debt is given under the seal
of all parties hereto, and it is intended that this Deed to Secure Debt is and
shall constitute and have the effect of a sealed instrument according to law.
5.07 INTEREST NOT TO EXCEED MAXIMUM ALLOWED BY LAW. The parties hereto shall
in no event be deemed to have contracted for a greater rate of interest than the
maximum rate permitted by law. Should a greater amount be collected, it shall be
construed as a mutual mistake of the parties and the excess shall be returned to
the party paying same.
5.08 GOVERNING LAW. THIS DEED TO SECURE DEBT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
PAGE 14
5.09 ADDRESSES OF PARTIES.
(A) NAME OF GRANTOR (DEBTOR): Xxxxxxx Properties
Residential, L.P.
ADDRESS OF GRANTOR: 0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
(B) NAME OF BANK (SECURED PARTY
AND GRANTEE): Compass Bank
ADDRESS OF BANK: X.X. Xxx 00000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Commercial Real
Estate Loan Department
5.10 RIDER. Additional provisions of this Deed to Secure Debt, if any, are
set forth below or on a Rider attached hereto and made a part hereof.
IN WITNESS WHEREOF, Grantor has caused this Deed to Secure Debt to be
executed under seal and delivered as of the day and year first above written.
Signed, sealed and delivered GRANTOR:
in the presence of :
XXXXXXX PROPERTIES RESIDENTIAL, L.P.,
/s/ Xxxxx Xxxxx a Georgia limited partnership
-----------------------------------
Witness
BY: XXXXXXX REALTY INVESTORS, INC.,
a Georgia corporation,
its general partner
/s/ Xxxxx X. Xxxxxxx
-----------------------------------
Notary Public
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
My Commission expires: July 27, 2004 Title: Chief Financial Officer
--------------------------
[NOTARIAL SEAL] [CORPORATE SEAL]
PAGE 15
EXHIBIT A
DESCRIPTION OF LAND
RIDER
1. Notwithstanding anything to the contrary in Sections 1.06 and 1.07 of
this Deed to Secure Debt, (i) in the event that the Property shall be damaged by
casualty or condemnation; and (ii) in Grantee's judgment, the damage to the
Property can be repaired in a timely and economically feasible manner, and in a
manner which causes the Property to remain in compliance with applicable
building, zoning and subdivision codes; such insurance proceeds or condemnation
proceeds shall be made available by Grantee to reimburse for the costs of repair
and restoration of the Property, subject to the following conditions:
(a) There shall be no Event of Default hereunder or under any of
the Loan Documents;
(b) No portion of the proceeds shall be made available for
architectural review or other purposes not directly attributable to the cost of
reconstructing the portions of the Property taken, damaged or destroyed unless
insurance proceeds or monies deposited by Grantor are sufficient to pay for such
review or other purposes.
(c) Grantor shall have provided assurances satisfactory to Grantee
that such repairs can be timely completed (including without limitation
depositing with Grantee such amounts as in the opinion of Grantee may be
required in addition to the available insurance or condemnation proceeds, to
fully pay the cost of such repair and restoration); and
(d) Each disbursement by Grantee of such proceeds and deposits (i)
shall be funded on a periodic basis, but not more frequently than monthly, (ii)
shall not in any instance be in an amount greater than the actual cost of such
repair and restoration which has been performed (aa) since the date of
performance of that portion of such work which was reimbursed with the
immediately preceding disbursement, or (bb) with respect to the first
disbursement, since the date of commencement of such work (which cost shall be
verified in writing in each instance by an architect, engineer or other party
theretofore approved by Grantee), (iii) shall be further conditioned upon
satisfaction that any undisbursed proceeds and deposits are sufficient to fully
pay the then remaining costs of completing such repair and restoration, and (iv)
conditioned upon the approval of each draw request by an architect or engineer
approved by Grantee (whose expenses shall be paid by Grantor) as to the matters
described in (i) - (iii) above and that the work is being performed in
accordance with plans and specifications for such work which have been
previously submitted to and approved in writing by Grantee. In the event and to
the extent such insurance proceeds or condemnation proceeds are not required or
used for the repair and restoration of the Property as aforesaid, Grantee shall
be entitled to apply such sums on account of the indebtedness secured by this
Deed to Secure Debt, regardless of whether the same shall then be due and
payable, and any balance of such sums thereafter remaining shall be paid to
Grantor.
2. Whenever reference is made to the payment of "reasonable attorney's
fees" or words of similar import in this Deed to Secure Debt, the Note, the
Continuing Guaranty of even date executed by Xxxxxxx Realty Investors, Inc. and
the other Loan Documents, the same shall mean and refer to the payment of actual
attorney's fees incurred based upon the attorney's normal hourly rate and the
number of hours worked, and not the statutory attorney's fees defined in
O.C.G.A. ss. 13-1-11.
