EXHIBIT 10.19.3
Space Above Reserve for Recording Information
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This instrument was prepared by:
Xxxx & Xxxxxx LLP
One Georgia Center - Suite 0000
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
DEED TO SECURE DEBT, ASSIGNMENT
OF LEASES AND RENTS, AND SECURITY AGREEMENT
THIS INDENTURE (this "Security Instrument") is entered into as of June
28, 2001, by XXXXXXX PROPERTIES RESIDENTIAL, L.P., a Georgia Limited
Partnership, as grantor and debtor, whose address is 0000 Xxxxxxx Xxxx, Xxxxx
000, Xxxxxxx, XX 00000, ("Borrower"), in favor of SOUTHTRUST BANK, an Alabama
banking corporation, as grantee and secured party, whose address is P.O. Box
2554, Attention: Commercial Real Estate, Birmingham, Alabama 35290 ("Lender").
W I T N E S S E T H:
Xxxxxx has made a loan to Borrower in the principal sum of Three
Million Dollars ($3,000,000.00) in lawful money of the United States of America
(the "Loan"), which Loan is evidenced by a Promissory Note of even date herewith
payable by Borrower to the order of Lender in said principal amount (the
"Note"), with interest thereon from the date of the Note at the rates set forth
in the Note, such principal and interest to be paid in installments as provided
in the Note, with the final installment being due and payable on July 10, 2002.
As a condition precedent to making the Loan, Xxxxxx has required that
Borrower execute and deliver this Security Instrument as security for the Loan
and the other Secured Obligations (as hereinafter defined).
ARTICLE ONE - GRANTS OF SECURITY
NOW THEREFORE, for and in consideration of the foregoing and other good
and valuable consideration, and the sum of One Hundred and No/100 Dollars
($100.00) in hand paid, and the other considerations hereinafter mentioned, the
receipt and sufficiency whereof are hereby acknowledged, Borrower does hereby
irrevocably grant, bargain, sell, assign, warrant, transfer, and
convey to Lender, and xxxxx a security interest to Xxxxxx in, the following
property, appurtenances, rights, interests, and estates of Borrower, whether now
owned or hereafter acquired by Xxxxxxxx (all such property, appurtenances,
rights, interests, and estates being herein referred to collectively as the
"Property"):
(a) All tracts, pieces, or parcels of land located in Land
Lots 385 and 386 of the 18th District of Xxxxxx County, Georgia, more
particularly described in Exhibit A attached hereto and by this
reference made a part hereof (the "Land");
(b) All buildings, structures, fixtures, additions,
enlargements, extensions, modifications, repairs, replacements, and
improvements of every nature whatsoever now or hereafter erected or
located on the Land (the "Improvements");
(c) All easements, rights-of-way, strips and gores of land,
vaults, streets, ways, alleys, passages, sewer rights, waters, water
courses, water rights and powers, air rights, and development rights,
minerals, flowers, shrubs, crops, trees, timber, and other emblements
now or hereafter located on, under, or above the Land or any part or
parcel thereof, and all ground leases, estates, rights, titles,
interests, privileges, liberties, tenements, hereditaments,
appurtenances, reversions, and remainders whatsoever in any way
belonging, relating, or appertaining to the Land and the Improvements
or any part thereof, or which hereafter shall in any way belong,
relate, or be appurtenant thereto, and all land lying in the bed of any
street, Froad, or avenue, opened or proposed, in front of or adjoining
the Land, to the center line thereof, and all the estates, rights,
titles, interests, dower and rights of dower, curtesy and rights of
curtesy, property, possession, claim, and demand whatsoever, both at
law and in equity, of Borrower of, in, and to the Land and the
Improvements and every part and parcel thereof, with the appurtenances
thereto;
(d) All machinery, equipment, fixtures, appliances, and
personal property of every kind and nature whatsoever now or hereafter
owned by Borrower, or in which Borrower has or shall have an interest,
now or hereafter located in, on, or about the Land and the
Improvements, or the appurtenances thereof, or used or intended to be
used with or in connection with the present or future operation,
occupancy, or enjoyment of the Land and the Improvements (including,
without limitation, appliances, machinery, equipment, signs, artwork,
office furnishings and equipment, guest room furnishings, and
specialized equipment for kitchens, laundries, bars, restaurant, public
rooms, health and recreational facilities, linens, dishware, all
partitions, screens, awnings, shades, blinds, floor coverings, hall and
lobby equipment, heating, lighting, plumbing, ventilating,
refrigerating, incinerating, elevators, escalators, air conditioning
and communication plants or systems with appurtenant fixtures, vacuum
cleaning systems, call or beeper systems, security systems, sprinkler
systems and other fire prevention and extinguishing apparatus and
materials; reservation system computer and related equipment; all
equipment, manual, mechanical or motorized, for the construction,
maintenance, repair and cleaning of, parking areas, walks, underground
ways, truck ways, driveways, common areas, roadways, highways and
streets), and all building equipment, materials, and supplies of any
nature whatsoever now or hereafter located in, on, or about the Land
and the Improvements, or the appurtenances thereof, and whether in
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storage or otherwise, or used or intended to be used with or in
connection with the present or future operation, occupancy, or
enjoyment of the Land and the Improvements (hereinafter collectively
referred to as the "Equipment"), including the proceeds of any sale or
transfer of the foregoing, and the right, title and interest of
Borrower in and to any of the Equipment which may be subject to any
security interests, as defined in the Uniform Commercial Code, as
adopted and enacted by the State or States where any of the Property is
located (the "UCC") superior in priority to the lien of this Security
Instrument. In connection with Equipment which is leased to Borrower or
which is subject to a lien or security interest which is superior to
the lien of this Security Instrument, this Security Instrument shall
also cover all right, title and interest of Borrower in and to all
deposits, and the benefit of all payments now or hereafter made with
respect to such Equipment;
(e) All leases, usufructs, subleases, subtenancies, licenses,
occupancy agreements, and concessions relating to the use and enjoyment
of all or any part of the Land or the Improvements heretofore or
hereafter entered into whether before or after the filing by or against
Borrower of any petition for relief under the United States Bankruptcy
Code, 11 U.S.C. xx.xx. 101 et seq. (the "Bankruptcy Code"), as the same
might be amended from time to time (the "Leases"), and any and all
guaranties and other agreements relating to or made in connection with
any of the Leases, and all right, title, and interest of Xxxxxxxx, its
successors and assigns therein and thereunder, to secure the
performance by the lessees, sublessees, tenants, subtenants,
permittees, licensees, and other obligees (the "Lessees") of their
obligations thereunder and all rents, additional rents, revenues,
issues, and profits (including oil and gas or other mineral royalties
and bonuses) from the Land and the Improvements, whether paid or
accruing before or after the filing by or against Borrower of any
petition for relief under the Bankruptcy Code (the "Rents"), and all
proceeds from the sale or other disposition of the Leases and the right
to receive and apply the Rents to the payment of the Secured
Obligations, and all of Xxxxxxxx's claims and rights to damages and any
other remedies in connection with or arising from the rejection of any
Lease by a Lessee or any trustee, custodian, or receiver pursuant to
the Bankruptcy Code in the event that there shall be filed by or
against a Lessee any petition, action. or proceeding under the
Bankruptcy Code or under any other similar federal or state law now or
hereafter in effect;
(f) All proceeds, including all claims to and demands for
them, of the voluntary or involuntary conversion of any of the Land,
the Improvements, or any of the other Property into cash or liquidated
claims, including proceeds of all present and future fire, hazard, or
casualty insurance policies and all condemnation awards or payments now
or hereafter to be made by any public body or decree by any court of
competent jurisdiction for any taking or in connection with any
condemnation or eminent domain proceeding, and Lender hereby
acknowledges and covenants that Lender shall have no right or interest
in such proceeds and awards, and all causes of action and their
proceeds for any damage or injury to the Land, Improvements, or any of
the other Property or any part of them, or breach of warranty in
connection with the construction of the Improvements, including causes
of action arising in tort, contract, fraud, or concealment of a
material fact;
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(g) All rights to the payment of money, accounts, accounts
receivable, reserves, deferred payments, refunds, cost savings,
payments and deposits, whether now or hereafter to be received from
third parties (including all xxxxxxx money deposits) or deposited by
Borrower with Lender or third parties (including all utility deposits,
accounts for the deposit, collection, and/or disbursement of Rents, and
all reserve accounts provided for under any documentation entered into
or delivered by Borrower in connection with the Loan), chattel paper,
instruments, documents, notes, drafts and letters of credit, which
arise from or relate to construction on the Land, to any business now
or hereafter to be conducted on the Land, or to the Land and the
Improvements generally;
(h) All franchises, trade names, trademarks, symbols,
goodwill, service marks, trade styles, books, records, development and
use rights, architectural and engineering plans, specifications and
drawings, and as-built drawings, contracts, licenses, approvals,
applications, consents, subcontracts, service contracts, management
contracts, permits, and other agreements of any nature whatsoever now
or hereafter obtained or entered into by Borrower, or any managing
agent of the Property on behalf of Borrower, with respect to the use,
occupation, development, construction, management, and/or operation of
the Property or any part thereof or the activities conducted thereon or
therein, or otherwise pertaining to the Property or any part thereof,
including, without limitation, (i) all rights of Borrower to receive
moneys due and to become due to it under or in connection with any of
the foregoing, (ii) all rights of Borrower to damages arising out of or
for a breach or default in respect thereof, and (iii) all rights of
Borrower to perform and to exercise all remedies thereunder;
(i) All rights that Borrower now has or may hereafter acquire,
to be indemnified and/or held harmless from any liability, loss,
damage, costs or expense (including, without limitation, attorneys'
fees and disbursements) relating to the Property or any part thereof;
(j) All books and records pertaining to any and all of the
property described above, including computer-readable memory and any
computer hardware or software owned by Borrower necessary to access and
process such memory; and
(k) All proceeds of, additions and accretions to,
substitutions and replacements for, and any changes in any of the
property described above.
TO HAVE AND TO HOLD the Property and all parts, rights, members and
appurtenances thereof, to the use, benefit and behoof of Lender, its successors
and assigns, in fee simple forever. This conveyance is intended to operate and
is to be construed as a deed passing title to the Property to Lender and is made
under those provisions of xx.xx. 44-14-60 through 44-14-85 of the OFFICIAL CODE
OF GEORGIA ANNOTATED, and not as a mortgage.
ARTICLE TWO - OBLIGATIONS SECURED
This Security Instrument and the grants, assignments, and transfers
made in Article I hereof are given for the purpose of securing the following
obligations in any order of priority as Lender may determine in its sole
discretion (the "Secured Obligations"):
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Payment of all indebtedness evidenced by the Note, including
principal, interest, default interest, late charges, prepayment
consideration , and other sums, as provided in the Note, and the
performance of all other obligations set forth in the Note;
(a) The full and prompt payment and performance of all
provisions, agreements, covenants, and obligations contained in this
Security Instrument and all other documents at any time evidencing,
securing, or otherwise relating to the Loan and the payment of all
other sums therein covenanted to be paid (the Note, this Security
Instrument, and such other documents, excluding that certain
Environmental Indemnity Agreement executed by Borrower for the benefit
of Lender with respect to the Property, are hereinafter referred to
collectively as the "Loan Documents");
(b) Any and all additional advances made by Lender pursuant to
this Security Instrument or the other Loan Documents to protect or
preserve the Property or the lien or security interest created hereby
on the Property, or for taxes, assessments or insurance premiums as
hereinafter provided or for performance of any of Xxxxxxxx's
obligations hereunder or under the other Loan Documents or for any
other purpose provided herein or in the other Loan Documents (whether
or not the original Borrower remains the owner of the Property at the
time of such advances); and
(c) Payment and performance of all modifications, amendments,
extensions, consolidations, and renewals, however evidenced, of any of
the obligations described in (a) through (c) above.
ARTICLE THREE - COVENANTS
3.1 Payment of Secured Obligations. Xxxxxxxx will perform,
observe and comply with the provisions hereof and of each of the other Loan
Documents and duly and punctually will pay to Lender the sum of money expressed
in the Note with interest thereon and all other sums required to be paid by the
Borrower pursuant to the provisions of this Security Instrument, all without any
deduction or credit for taxes or other similar charges paid by the Borrower.
3.2 Incorporation by Reference. All the covenants, conditions,
and agreements contained in the Note and all of the other Loan Documents are
hereby made a part of this Security Instrument to the same extent and with the
same force as if fully set forth herein.
3.3 Warranty of Title. Borrower is lawfully seized of an
indefeasible estate in fee simple in the Property hereby conveyed and has good
and absolute title to all other Property in which a security interest is herein
granted, and Xxxxxxxx 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. Except for the Permitted Encumbrances (as defined below), the
Property is free and clear of all liens, charges, and encumbrances whatsoever,
including conditional sales contracts, chattel mortgages, security agreements,
financing statements, and anything of a similar nature, and that Borrower shall
and will warrant and forever defend the title thereto unto the Lender, its
successors and assigns, against the lawful claims of all persons whomsoever.
Borrower shall not acquire any portion of the Property subject to any security
interest, conditional sales contract, title retention arrangement, or other
charge or lien taking precedence over the security
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interest and lien of this Security Instrument. As used herein, the term
"Permitted Encumbrances" means collectively (i) liens at any time existing in
favor of Lender, (ii) the matters affecting title to the Land described in title
insurance commitment issued in favor of Lender in connection with the execution
and delivery of this Security Instrument, (iii) statutory liens incurred in the
ordinary course of business for the purchase of labor, services, materials,
equipment, or supplies, or with respect to workmen's compensation, unemployment
insurance, or other forms of governmental insurance or benefits, which are not
delinquent or are paid or bonded and removed of record in a manner satisfactory
to Lender, and (iv) liens for real property taxes, assessments, or governmental
charges or levies for the current year, the payment of which is not delinquent.
3.4 Taxes, Utilities, and Other Charges.
(a) Borrower will pay, on or before the due date thereof, all taxes,
assessments, levies, license fees, permit fees, dues, charges, fines, and
impositions (in each case whether general or special, ordinary or extraordinary,
or foreseen or unforeseen) of every character whatsoever (including all
penalties and interest thereon) now or hereafter levied, assessed, confirmed, or
imposed on, or in respect of, or which might constitute a lien upon the
Property, or any part thereof, or any estate, right, or interest therein, or
upon the rents, issues, income, or profits thereof, and shall submit to Lender
such evidence of the due and punctual payment of all such taxes, assessments,
and other fees and charges as Lender might require. Borrower shall have the
right, before any such tax, assessment, fee, or charges become delinquent, to
contest or object to the amount or validity of any such tax, assessment, fee, or
charge by appropriate legal proceedings, provided that said right shall not be
deemed or construed in any way as relieving, modifying, or extending Borrower's
covenant to pay any such tax, assessment, fee, or charge at the time and in the
manner provided herein unless (i) Borrower has given prior written notice to
Lender of Borrower's intent to so contest or object, (ii) Borrower shall
demonstrate to Lender's satisfaction that the legal proceedings shall
conclusively operate to prevent the sale of the Property, or any part thereof,
to satisfy such tax, assessment, fee, or charge prior to final determination of
such proceedings, (iii) Borrower shall furnish a good and sufficient bond or
surety as requested by and satisfactory to Lender, and (iv) Borrower shall have
provided a good and sufficient undertaking as might be required or permitted by
law to accomplish a stay of such proceedings.
(b) Borrower will pay, on or before the due date thereof, (i)
all premiums on policies of insurance covering, affecting, or relating to the
Property, (ii) all ground rentals, other lease rentals, and other sums, if any,
owing by Borrower and becoming due under any lease or rental contract affecting
the Property, and (iii) all utility charges that are incurred by Borrower for
the benefit of the Property, or which might become a charge or lien against the
Property for gas, electricity, water, sewer services, and the like furnished to
the Property, and all other public or private assessments or charges of a
similar nature affecting the Property or any portion thereof, whether or not the
nonpayment of same might result in a lien thereon. Borrower shall submit to
Lender such evidence of the due and punctual payment of all such premiums,
rentals, and other sums as Lender might require.
(c) Borrower shall not suffer any mechanic's, materialman's,
laborer's, statutory, or other lien to be created or remain outstanding against
the Property, provided that Borrower may contest any such lien in good faith by
appropriate legal proceedings provided the lien is bonded off and removed as an
encumbrance upon the Property. Xxxxxx has not consented and will not consent to
the performance of any work or the furnishing of any materials that might be
deemed
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to create a lien or liens against the Property that is superior to the
lien and security interest hereof.
(d) Borrower will pay, on or before the due date thereof, all
taxes, assessments, charges, expenses, costs, and fees that might now or
hereafter be levied upon, or assessed or charged against, or incurred in
connection with, the Note, the Secured Obligations, this Security Instrument, or
any of the other Loan Documents, including, without limitation, any sales or use
tax that might be imposed on Lender with respect to the Secured Obligations, but
excluding any federal, state or local income or franchise taxes. 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 deeds to secure debt
or security agreements, or debts secured thereby, or in the manner of collecting
such taxes, so as to adversely affect Lender (excluding any tax upon Lender's
income derived from the Secured Obligations), Borrower will pay any such tax on
or before the due date thereof. If Borrower fails to make such prompt payment or
if, in the opinion of Lender, any such state, federal, municipal, or other
governmental law, order, rule, or regulation prohibits Borrower from making such
payment or would penalize Borrower if Borrower makes such payment, or if, in the
opinion of Lender, the making of such payment might result in the imposition of
interest beyond the maximum amount permitted by applicable law, then the entire
Secured Obligations will, at the option of Lender, become immediately due and
payable.
3.5 Insurance. Borrower, at its sole cost and expense, for the
mutual benefit of Borrower and Lender, shall also obtain and maintain during the
entire term of this Security Instrument comprehensive general liability
insurance, including broad form property damage, blanket contractual and
personal injuries (including death resulting therefrom) coverages on an
"occurrence basis" with minimum combined single limit coverage of not less than
$2,000,000. All insurance policies required pursuant to this Section (the
"Policies") (i) shall be issued by an insurer satisfactory to Lender in its sole
discretion, (ii) shall be maintained throughout the term of this Security
Instrument without cost to Lender, (iii) a certificate thereof shall be
delivered to Lender, (iv) shall contain such provisions as Lender deems
reasonably necessary or desirable to protect its interest including, without
limitation, endorsements providing that neither Borrower, Lender nor any other
party shall be a coinsurer under the Policies and that Lender shall receive at
least thirty (30) days prior written notice of any modification or cancellation,
and (v) shall be reasonably satisfactory in form and substance to Lender and
shall be reasonably approved by Lender as to amounts, form, risk coverage,
deductibles, loss payees and insureds. Not later than ten (10) days prior to the
expiration date of each of the Policies, Borrower shall deliver to Lender
satisfactory evidence of the renewal of each Policy.
3.6 Condemnation. Borrower shall promptly give Xxxxxx written
notice of the actual or threatened commencement of any condemnation or eminent
domain proceeding affecting the Property and shall deliver to Lender copies of
any and all papers served in connection with such proceedings. No taking by any
public or quasi_public authority through eminent domain or otherwise (including
but not limited to any transfer made in lieu of or in anticipation of the
exercise of such taking) shall limit or otherwise affect Borrower's obligations
under this Security Instrument or any of the other Loan Documents to which
Borrower is a party. Lender is authorized, at its option, to commence, appear
in, and prosecute, through counsel selected by Xxxxxx, in its own or in
Borrower's name, any action or proceeding relating to any such condemnation,
provided that, if Xxxxxx's determines that the compensation, award, or payment
or relief to be collected from such action or proceeding will likely be less
than $100,000.00, then Lender shall not unreasonably withhold its consent to
permitting Borrower the sole right to prosecute any such action or proceeding.
If an Event of Default exists, Lender shall have the sole and exclusive right to
compromise or settle any claim for compensation. All such
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compensation, awards, damages, claims, rights of action, and proceeds and the
right thereto are hereby assigned by Borrower to Lender, and Lender is
authorized, at its option, to collect and receive all such compensation, awards,
or damages and to give proper receipts and acquittances therefor without any
obligation to question the amount of any such compensation, awards, or damages.
Lender will be entitled to all compensation, awards, and other payments or
relief therefor; provided that if the amount of such compensation, awards, and
other payments or relief is equal to or less than the Casualty Benchmark,
Borrower may collect same. Lender shall not be limited to the interest paid on
the award by the condemning authority but shall be entitled to receive out of
the award interest at the rate or rates provided herein and in the Note. Any
such compensation, awards, and other payments received by Xxxxxx, after
deducting therefrom all of Lender's expenses incurred in the collection and
administration of such sums, including reasonable attorney's fees actually
incurred, shall be retained and applied by Lender toward the payment of the
Secured Obligations, whether or not then due and payable, in such order,
priority, and proportions as Lender in its discretion shall deem proper or, at
the discretion of Lender, the same shall be paid, either in whole or in part, to
Borrower. If the Property is sold, through foreclosure or otherwise, prior to
the receipt by Lender of such award or payment, Lender shall have the right,
whether or not a deficiency judgment on the Note shall have been sought,
recovered or denied, to receive said award or payment, or a portion thereof
sufficient to pay the Secured Obligations. Borrower shall file and prosecute or
cause to be filed and prosecuted its claim or claims for any such award or
payment in good faith and with due diligence and cause the same to be paid over
to Lender, and hereby irrevocably authorizes and empowers Lender, in the name of
Borrower or otherwise, to collect and receive any such award or payment and to
file and prosecute such claim or claims, and although it is hereby expressly
agreed that the same shall not be necessary in any event, Borrower shall, upon
demand of Lender, make, execute and deliver any and all assignments and other
instruments sufficient for the purpose of assigning any such award or payment to
Lender, free and clear of any encumbrances of any kind or nature whatsoever.
3.8 Care of Property. Borrower will preserve and maintain the
Property in good condition and repair, will not commit or suffer any waste, and
will not do or suffer to be done anything that will increase the risk of fire or
other hazard to the Property or any part thereof. Lender is hereby authorized to
enter upon and inspect the Property at any time during normal business hours.
Borrower will comply promptly with all present and future laws, ordinances,
rules, and regulations of any governmental authority affecting the Property or
any part thereof, including, without limitation, the Americans with Disabilities
Act and regulations thereunder, and all laws, ordinances, rules and regulations
relating to zoning, building codes, set back requirements, and environmental
matters. No above-ground improvements shall be constructed or placed on the
Property without the prior written consent of Lender, which consent shall not be
unreasonably withheld.
3.9 Leases and Management Agreements. Borrower shall not,
without the prior written consent and approval of Xxxxxx, enter into any Lease
or permit any tenancy of or affecting the Property.
3.10 Costs and Expenses. Borrower shall bear all taxes, fees,
and expenses (including reasonable fees and expenses of counsel for Lender) in
connection with the Loan, the Note, the preparation and, if applicable, the
recordation of this Security Instrument and the other Loan Documents, and in
connection with any amendments, waivers, or consents pursuant to the provisions
hereof hereafter made and any workout or restructuring relating to the Loan. If,
at any time, an Event of Default occurs or Lender becomes a party to any suit or
proceeding in order to protect its interests or priority in the Property or its
rights under this Security Instrument
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or any of the other Loan Documents, or if Lender is made a party to any suit or
proceeding by virtue of the Loan, this Security Instrument, or the Property and
as a result of any of the foregoing, Lender employs counsel to advise or provide
other representation with respect to this Security Instrument, the Property, or
to collect the Secured Obligations, or to take any action in or with respect to
any suit or proceeding relating to this Security Instrument, any of the other
Loan Documents, the Property, or Borrower, or to protect, collect, or liquidate
any of the Property, or attempt to enforce any security interest or lien granted
to Lender by any of the Loan Documents, then in any such event, all of the
attorney's fees arising from such services, including fees on appeal and in any
bankruptcy proceedings, and any expenses, costs, and charges relating thereto
shall constitute additional obligations of Borrower to Lender payable on demand
of Lender. Without limiting the foregoing, Xxxxxxxx has undertaken the
obligation for payment of, and shall pay, all recording and filing fees, revenue
or documentary stamps or taxes, intangibles taxes, transfer taxes, recording
taxes and other taxes, expenses and charges payable in connection with this
Security Instrument, any of the other Loan Documents, the Secured Obligations,
or the filing of any financing statements or other instruments required to
effectuate the purposes of this Security Instrument, and if Borrower fails to do
so, Xxxxxxxx agrees to reimburse Lender for the amounts paid by Xxxxxx, together
with penalties or interest, if any, incurred by Xxxxxx as a result of
underpayment or nonpayment. This Section shall survive for eighteen (18) months
after repayment of the Secured Obligations.
3.11 Further Assurances; After Acquired Property. At any time,
and from time to time, upon request by Xxxxxx, Borrower will make, execute and
deliver or cause to be made, executed and delivered, to Lender, any and all
other further instruments, certificates, and other documents as may, in the
reasonable opinion of Lender, be necessary or desirable to (i) perfect and
protect the lien and security interest created or purported to be created
hereby, (ii) enable Lender to exercise and enforce any and all rights and
remedies hereunder in respect of the Property, or (iii) effect otherwise the
purposes of this Security Instrument, including, without limitation, (A)
executing and filing such financing or continuation statements, or amendments
thereto, as may be necessary or desirable or that Lender might request to
perfect and preserve the security interest created by this Security Instrument
as a first and prior security interest upon and security title in and to all of
the Property, whether now owned or hereafter acquired by Xxxxxxxx, (B) if
certificates of title are now or hereafter issued or outstanding with respect to
any of the Property, by immediately causing the interest of Lender to be
properly noted thereon at Borrower's expense, and (C) furnishing to Lender from
time to time statements and schedules further identifying and describing the
Property and such other reports in connection with the Property as Lender might
request, all in reasonable detail. Upon any failure by Borrower so to do, Xxxxxx
may make, execute, and record any and all such instruments, certificates, and
documents for and in the name of Xxxxxxxx, and Borrower hereby irrevocably
appoints Lender the agent and attorney in fact of Borrower so to do, which power
of attorney is coupled with an interest and irrevocable. The lien and security
interest hereof shall attach automatically without any further act or deed
required of Borrower or Lender to all after-acquired property of the kind
described herein attached to or used in connection with the operation of the
Property or any part thereof.
3.12 Indemnification of Expenses.
(a) Without limitation upon any indemnification obligations set
forth herein or in any other Loan Document, Borrower will pay, reimburse, and
indemnify Lender for all reasonable attorney's fees, costs, and expenses
incurred by Xxxxxx in any suit, action, trial, appeal, bankruptcy or other legal
proceeding or dispute of any kind in which Xxxxxx is made a party or appears as
party plaintiff or defendant, affecting the Secured Obligations, this Security
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Instrument or the interests created herein, or the Property, or any appeal
thereof, including, but not limited to, any foreclosure action, any condemnation
action involving the Property or any action to protect the security hereof, any
bankruptcy or other insolvency proceeding commenced by or against Borrower or
any guarantor of any of the Secured Obligations, and any such amounts paid by
Lender shall be added to the Secured Obligations and shall be secured by this
Security Instrument. Borrower will indemnify and hold Lender harmless from and
against all claims, damages, and expenses, including reasonable attorney's fees
and court costs, resulting from any action by a third party against Lender
relating to this Security Instrument or the interests created herein, or the
Property, including, but not limited to, any action or proceeding claiming loss,
damage or injury to person or property, or any action or proceeding claiming a
violation of any national, state or local law, rule or regulation, provided
Borrower shall not be required to indemnify Lender for matters directly and
solely caused by the willful misconduct or gross negligence of Lender.
(b) Borrower acknowledges that it has undertaken the obligation
to pay all intangibles taxes and documentary taxes now or hereafter due in
connection with the Secured Obligations and the Loan Documents, and Borrower
agrees to indemnify and hold Lender harmless from any intangibles taxes and
documentary stamp taxes, and any interest or penalties, that Lender might
hereafter be required to pay in connection with the Secured Obligations or Loan
Documents. The agreements of this subsection (b) shall expressly survive
satisfaction of this Security Instrument and the repayment of the Secured
Obligations.
3.13 Estoppel Certificates. After request by Xxxxxx, Borrower,
within ten (10) days, shall furnish Lender or any proposed assignee with a
statement, duly acknowledged and certified, setting forth (i) the amount of the
original principal amount of the Note, (ii) the unpaid principal amount of the
Note, (iii) the rate of interest of the Note, (iv) the terms of payment and
maturity date of the Note, (v) the date installments of interest and/or
principal were last paid, (vi) that, except as provided in such statement, there
are no Events of Default under the Note or this Security Instrument, (vii) that
the Note and this Security Instrument are valid, legal and binding obligations
and have not modified or if modified, giving particulars of such modification,
(viii) whether any offsets or defenses exist against the Secured Obligations
and, if any are alleged to exist, a detailed description thereof, and (ix) as to
any other matters reasonably requested by Xxxxxx and reasonably related to the
Leases, the Secured Obligations, the Property or this Security Instrument.
3.14 Replacement Documents. Upon receipt of an affidavit of an
officer of Lender as to the loss, theft, destruction or mutilation of the Note
or any other Loan Document which is not of public record, and, in the case of
any such mutilation, upon surrender and cancellation of such Note or other Loan
Document which is not of public record, Borrower will issue, in lieu thereof, a
replacement note or other Loan Document, dated the date of such lost, stolen,
destroyed or mutilated note or other Loan Document in the same principal amount
thereof and otherwise of like tenor.
3.15 Subrogation. Lender shall be subrogated to the claims and
liens of all parties whose claims or liens are discharged or paid by Xxxxxx in
order to protect or preserve the Property and the value thereof as security for
Secured Obligations.
3.16 Limit of Validity. To the extent the fulfillment of any
provision of this Security Instrument at the time such provision is to be
performed shall involve transcending the limit of validity presently prescribed
by any applicable usury or similar law, the obligation to be fulfilled under
such provision shall ipso facto be reduced to the limit of such validity.
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3.17 Financing Statements. Borrower covenants and agrees to
execute, file, and refile such financing statements, continuation statements, or
other documents as Lender shall require from time to time with respect to the
Property. Xxxxxxxx agrees that the filing of financing statement(s) in the
records normally having to do with the Collateral shall not in any way affect
the agreement of Borrower that everything used in connection with the production
of income from the Property or adapted for use therein or that is described or
reflected in this Security Instrument is, and at all times and for all purposes
and in all proceedings, both legal or equitable, shall be, regarded as part of
the Land 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 Instrument, or (iii) any such item is referred to or reflected
in any such financing statement(s) so filed at any time. Similarly, the mention
in any such financing statement(s) of the rights in and to (aa) the proceeds of
any insurance policy, (bb) any award in condemnation proceedings for taking or
for loss of value, or (cc) Borrower's interest as lessor in any present or
future Leases or Rents shall not in any way alter any of the rights of Lender as
determined by this Security Instrument or affect the priority of Xxxxxx's
security interest granted hereby or by any other recorded document, it being
understood and agreed that such mention in such financing statement(s) is solely
for the protection of Lender in the event any court shall at any time hold, with
respect to the foregoing items (aa), (bb), or (cc), that notice of Xxxxxx's
priority of interest, to be effective against a particular class of persons,
must be filed in the UCC records. This Security Instrument may be filed as a
financing statement in any office where Xxxxxx deems such filing necessary or
desirable, and Borrower will promptly upon demand reimburse Lender for the costs
therefor.
3.18 Hazardous Material.
(a) Borrower represents and warrants to Lender that, to
Borrower's knowledge and except as disclosed in the Report dated April 14, 2000,
prepared by Environmental Corporation of America under Project #5-634-2
heretofore delivered to Lender, as of the date hereof (i) the Property is not in
direct or indirect violation of any local, state or federal law, rule or
regulation pertaining to environmental regulation, contamination or clean_up
(collectively, "Hazardous Material Laws"), including, without
limitation, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 (42 U.S.C.ss.9601 et seq. and 40 CFR ss.302.1 et seq.), the Resource
Conservation and Recovery Act of 1976 (42 U.S.C.ss.6901 et seq.), The Federal
Water Pollution Control Act (33 U.S.C.ss.1251 et seq. and 40 CFRss.116.1 et
seq.), and the Hazardous Materials Transportation Act (49 U.S.C.ss.1801 et
seq.), and the regulations promulgated pursuant to said laws, all as amended;
and any similar laws and regulations of the state having jurisdiction over the
Property; (ii) no hazardous, toxic or harmful substances, wastes, materials,
pollutants or contaminants (including, without limitation, asbestos,
polychlorinated biphenyls, petroleum products, flammable explosives, radioactive
materials, infectious substances or raw materials which include hazardous
constituents) or any other substances or materials which are included under or
regulated by Hazardous Material Laws (collectively, "Hazardous Material") are
located on or have been handled, generated, stored, processed or disposed of on,
or released or discharged at, onto, under, or from, the Property (including
underground contamination) except for those substances used by Borrower in the
ordinary course of its business and in compliance with all Hazardous Material
Laws; (iii) the Property is not subject to any private or governmental lien or
judicial or administrative notice or action relating to Hazardous Material; (iv)
no existing or closed underground storage tanks or other underground storage
receptacles for Hazardous Material are located on the Property; (v) no
investigation, action, proceeding, or claim by any agency, authority, or unit of
government
11
or by any third party which could result in any liability, penalty, sanction, or
judgment under any Hazardous Material Laws with respect to any condition, use,
or operation of the Property is threatened or in existence, nor does Borrower
know of any basis for such a claim; and (vi) Borrower is aware of no claim by
any party that any use, operation or condition of the Property violates any
Hazardous Material Laws.
(b) Borrower shall keep or cause the Property to be kept free from
Hazardous Material and in compliance with all Hazardous Material Laws, shall not
install or use any underground storage tanks, shall expressly prohibit the use,
generation, handling, storage, production, processing, and disposal of Hazardous
Material (except those substances used by Borrower in the ordinary course of its
respective operation or occupancy of the Property and in compliance with
Hazardous Material Laws) by any lessees or other persons in possession or use of
the Property or any part thereof, and, without limiting the generality of the
foregoing, shall not install in the Improvements or permit to be installed in
the Improvements asbestos or any substance containing asbestos.
(c) Borrower shall promptly notify Lender if Borrower shall become
aware of the possible existence of any Hazardous Material (except those
substances used by Borrower in the ordinary course of its operation and
occupancy of the Property and in compliance with Hazardous Material Laws) on the
Property or if Borrower shall become aware that the Property is or may be in
direct or indirect violation of any Hazardous Material Laws. Further,
immediately upon receipt of the same, Borrower shall deliver to Lender copies of
any and all orders, notices, permits, applications, reports, and other
communications, documents and instruments received by Borrower pertaining to the
actual, alleged or potential presence or existence of any such Hazardous
Material at, on, about, under, within, near or in connection with the Property.
(d) Borrower shall, promptly and when and as required by any Hazardous
Material Laws, at Borrower's sole cost and expense, take all actions as shall be
necessary or advisable for the clean_up of any and all portions of the Property
or other affected property, including, without limitation, all investigative,
monitoring, removal, containment and remedial actions in accordance with
applicable Hazardous Material Laws (and in all events in a manner satisfactory
to Lender), and shall further pay or cause to be paid, at no expense to Lender,
all clean_up, administrative and enforcement costs of applicable governmental
agencies which may be asserted against the Property. In the event Borrower fails
to do so, Lender may, but shall not be obligated to, cause the Property or other
affected property to be freed from any Hazardous Material (except those
substances used by Borrower in the ordinary course of their respective operation
or occupancy of the Property and in compliance with Hazardous Material Laws) or
otherwise brought into conformance with Hazardous Material Laws and any and all
costs and expenses incurred by Lender in connection therewith, together with
interest thereon at the Default Rate (as defined in the Note) from the date
incurred by Xxxxxx until actually paid by Xxxxxxxx, shall be immediately paid by
Borrower on demand and shall be secured by this Security Instrument and by all
other Loan Documents securing all or any part of the Secured Obligations.
Borrower hereby grants to Lender and its agents and employees access to the
Property and a license to remove any Hazardous Material (except those substances
used by Borrower in the ordinary course of the operation and occupancy of the
Property and in compliance with Hazardous Material Laws) and to do all things
Lender shall deem necessary to bring the Property in conformance with Hazardous
Material Laws.
(e) Borrower covenants and agrees, at Xxxxxxxx's sole cost and expense,
to indemnify, defend (at trial and appellate levels, and with attorneys,
consultants and experts acceptable to Xxxxxx), and hold Lender harmless from and
against any and all liens, damages,
12
losses, liabilities, obligations, settlement payments, penalties, assessments,
citations, directives, claims, litigation, demands, defenses, judgments, suits,
proceedings, costs, disbursements or expenses of any kind or of any nature
whatsoever (including, without limitation, reasonable attorneys', consultants'
and experts' fees and disbursements actually incurred in investigating,
defending, settling or prosecuting any claim, litigation or proceeding) which
may at any time be imposed upon, incurred by or asserted or awarded against
Lender or the Property, and arising directly or indirectly from or out of (i)
the presence, release or threat of release of any Hazardous Material on, in,
under or affecting all or any portion of the Property or any surrounding areas,
regardless of whether or not caused by or within control of Borrower; (ii) the
violation of any Hazardous Material Laws relating to or affecting the Property,
caused by Borrower; (iii) the failure by Borrower to comply fully with the terms
and conditions of this Section; (iv) the breach of any representation or
warranty contained in this Section; or (v) the enforcement of this Section,
including, without limitation, the cost of assessment, containment and/or
removal of any and all Hazardous Material from all or any portion of the
Property or any surrounding areas, the cost of any actions taken in response to
the presence, release or threat of release of any Hazardous Material on, in,
under or affecting any portion of the Property or any surrounding areas to
prevent or minimize such release or threat of release so that it does not
migrate or otherwise cause or threaten danger to present or future public
health, safety, welfare or the environment, and costs incurred to comply with
the Hazardous Material Laws in connection with all or any portion of the
Property or any surrounding areas. The indemnity set forth in this Section shall
also include any diminution in the value of the security afforded by the
Property or any future reduction in the sales price of the Property by reason of
any matter set forth in this Section. The foregoing indemnity shall specifically
not apply to any Hazardous Material that are initially placed on, in, or under
the Property after title to the Property is transferred by Borrower to any
person or entity who is not affiliated with Borrower (provided such transfer
does not constitute a violation of the terms of this Security Instrument) or to
Lender pursuant to a foreclosure sale or deed in lieu of foreclosure. Xxxxxx's
rights under this paragraph shall survive payment in full of the Secured
Obligations and shall be in addition to all other rights of Lender under this
Security Instrument, the Note, and the other Loan Documents.
(f) Upon Xxxxxx's request, at any time after the occurrence and during
the continuation of an Event of Default hereunder or at such other time as
Lender has reasonable grounds to believe that Hazardous Material (except those
substances used by Borrower or Lessees of the Property in the ordinary course of
the operation and occupancy of the Property and in compliance with all Hazardous
Material Laws) are or have been released, stored or disposed of on or around the
Property or that the Property may be in violation of the Hazardous Material
Laws, Borrower shall provide, at Borrower's sole cost and expense, an inspection
or audit of the Property prepared by a hydrogeologist or environmental engineer
or other appropriate consultant approved by Lender indicating the presence or
absence of Hazardous Material on the Property or an inspection or audit of the
Improvements prepared by an engineering or consulting firm approved by Lender in
writing indicating the presence or absence of friable asbestos or substances
containing asbestos on the Property. If Borrower fails to provide such
inspection or audit within forty_five (45) days after such request, Lender may
order the same, and Borrower hereby grants to Lender and its employees and
agents access to the Property and a license to undertake such inspection or
audit. The cost of such inspection or audit, together with interest thereon at
the Default Rate from the date incurred by Xxxxxx until actually paid by
Xxxxxxxx, shall be immediately paid by Borrower on demand and shall be secured
by this Security Instrument and by all of the other Loan Documents.
(g) Without limiting the foregoing, where recommended by a "Phase I" or
"Phase II" assessment (an "Environmental Report"), Borrower shall establish and
comply with an
13
operations and maintenance program relative to the Property, in form and
substance acceptable to Lender, prepared by an environmental consultant
acceptable to Lender, which program shall address any Hazardous Material
(including asbestos containing material or lead based paint) that may now or in
the future be detected on the Property. Without limiting the generality of the
preceding sentence, Lender may require (i) periodic notices or reports to Lender
in form, substance and at such intervals as Lender may specify to address
matters raised in the Environmental Report, (ii) an amendment to such operations
and maintenance program to address changing circumstances, laws or other
matters, (iii) at Borrower's sole expense, supplemental examination of the
Property by consultants specified by Xxxxxx to address matters raised in the
Environmental Report, (iv) access to the Property, by Lender, its agents or
servicer, to review and assess the environmental condition of the Property and
Borrower's compliance with any operations and maintenance program, and (v)
variation of the operations and maintenance program in response to the reports
provided by any such consultants.
ARTICLE FOUR - PROHIBITION ON TRANSFERS
4.1 General Prohibition. Xxxxxxxx acknowledges that Xxxxxx has
examined and relied on the experience of Borrower and the owners of the
beneficial interest in Borrower and Xxxxxxxx's constituent entities in owning
and operating properties such as the Property in agreeing to make the Loan, and
that Lender will continue to rely on Xxxxxxxx's ownership of the Property as a
means of maintaining the value of the Property as security for repayment of the
Secured Obligations. Borrower acknowledges that Lender has a valid interest in
maintaining the value of the Property so as to ensure that, if Borrower defaults
in the repayment of the Secured Obligations, Lender can recover all or a portion
of the Secured Obligations by a sale of the Property. Except as expressly
provided herein, Lender may, at Xxxxxx's option, declare all the Secured
Obligations immediately due and payable, and Lender may invoke any rights and
remedies permitted by this Security Instrument and the other Loan Documents, in
the event that Borrower, without the prior written consent of Lender, which
consent will not be unreasonably withheld by Lender after consideration of all
relevant factors, sells, conveys, alienates, mortgages, encumbers, pledges, or
otherwise transfers the Property or any part thereof or any interest therein, or
permits the Property or any part thereof or any interest therein to be sold,
conveyed, alienated, mortgaged, encumbered, pledged or otherwise transferred
(collectively, a "Transfer").
4.2 Transactions Included. A Transfer within the meaning of
Section 4.1 shall be deemed to include, without limitation, (i) an installment
sales agreement wherein Borrower agrees to sell the Property or any part thereof
for a price to be paid in installments; (ii) an agreement by Borrower leasing
all or a substantial part of the Property for other than actual occupancy by a
space lessee thereunder or a sale, assignment or other transfer of, or the grant
of a security interest in, Xxxxxxxx's right, title and interest in and to the
Leases or any rents therefrom; (iii) any divestiture of Borrower's title to the
Property or any interest therein in any manner or way, whether voluntary or
involuntary, or any merger, consolidation, dissolution or syndication affecting
Borrower; and (iv) subject to the provisions of Section 4.3 below, the change,
removal, or resignation of Xxxxxxx Realty Investors, Inc. (the "Xxxxxxx REIT")
as the general partner of Xxxxxxxx, or the sale, transfer, or assignment by of
any general or limited partnership interest in Borrower.
4.3 Permitted Transfers. Notwithstanding the provisions of
Sections 4.1 and 4.2 above, the following Transfers are permitted without the
consent of Lender:
14
(a) The Transfer of shares of common stock or other beneficial
or ownership interest or other forms of securities in the Xxxxxxx REIT,
and the issuance of all varieties of convertible debt, equity and other
similar securities of the Xxxxxxx REIT and the subsequent Transfer of
such securities, provided that no Change in Control (as defined below)
occurs as a result of such Transfer, either upon such Transfer or upon
the subsequent conversion to equity of such convertible debt or other
securities. As used herein, the term "Change in Control" means the
earliest to occur of (i) the date on which Xxxxxxx REIT ceases for any
reason whatsoever to be the sole general partner of Xxxxxxxx, or (ii)
the date on which Xxxxxxx X. Xxxxxxx ceases for any reason to be owner
of at least ten percent (10%) of the ownership interests of Xxxxxxx
XXXX and Xxxxxxxx on an aggregate basis (taking into account both the
voting stock of Xxxxxxx REIT and the partnership units in Borrower);
(b) The Transfer of limited partnership interests by the
limited partners of Xxxxxxxx, including, without limitation, the
conversion or exchange of limited partnership interests in Borrower to
shares of common stock or other beneficial or ownership interests or
other forms of securities in the Xxxxxxx REIT, provided that no Change
in Control occurs as the result of such Transfer;
(c) The issuance by Borrower of additional limited partnership
units or convertible debt, equity, and other similar securities, and
the subsequent Transfer of such units or other securities, provided
that no Change in Control occurs as the result of such Transfer, either
upon such Transfer or upon the subsequent conversion to equity of such
convertible debt or other securities;
(d) A Transfer of the Property to Xxxxxxx REIT;
(e) Any Transfer that constitutes a Permitted Encumbrance at
the time such Transfer occurs; and
(f) The grant of an easement, if prior to the granting of the
easement Borrower causes to be submitted to Lender all information
required by Lender to evaluate the easement, and if Lender determines
that the easement shall not materially affect the operation of the
Property or Xxxxxx's interest in the Property and Borrower pays to
Lender, on demand, all cost and expenses incurred by Lender in
connection with reviewing Borrower's request.
4.4 Prohibition Absolute. Lender shall not be required to
demonstrate any actual impairment of its security or any increased risk of
default hereunder in order to declare the Secured Obligations immediately due
and payable upon the occurrence of a Transfer without Xxxxxx's prior written
consent or as otherwise expressly permitted herein. This provision shall apply
to every Transfer regardless of whether voluntary or not, or whether or not
Lender has consented to any previous Transfer, except for those expressly
allowed herein. Any Transfer made in contravention of this Section shall be null
and void and of no force and effect.
ARTICLE FIVE - EVENTS OF DEFAULT AND REMEDIES
15
5.1 Events of Default. The occurrence or existence of any one
or more of the following events, whether voluntary, involuntary, or effected by
operation of law, shall constitute an "Event of Default" under this Security
Instrument:
(a) Borrower fails to pay interest, principal or any other sum
due under the terms of the Note or any other Loan Document within ten
(10) days after such payment is due; or
(b) Any Transfer occurs in violation of the provisions of
Article Four hereof; or
(c) Borrower or the Xxxxxxx REIT (each an "Obligor") files a
voluntary petition in bankruptcy or any Obligor is adjudicated as
bankrupt or insolvent, or any Obligor files any petition or answer
seeking or acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief for such
Obligor under any present or future federal, state, or other statute,
law, or regulation relating to bankruptcy, insolvency, or other relief
for debtors, or any Obligor seeks or consents to, or acquiesces in, the
appointment of any trustee, receiver, or liquidator of such Obligor or
of all or any substantial part of such Obligor's property or of any or
all of the rents, revenues, issues, earnings, profits, or income
thereof, or any Obligor makes any general assignment for the benefit of
creditors or admits in writing an inability to pay such Obligor's debts
generally as they become due; or
(d) A court of competent jurisdiction enters an order,
judgment, or decree approving a petition filed against any Obligor
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 any trustee, receiver, or liquidator is appointed for any
Obligor or of all or any substantial part of such Obligor's property or
of any or all of the rents, revenues, issues, earnings, profits, or
income thereof, which appointment remains unvacated and unstayed for an
aggregate of sixty (60) days (whether or not consecutive); or
(e) Any certificate, statement, representation, warranty, or
audit, whether written or unwritten, heretofore or hereafter furnished
by or on behalf of any Obligor pursuant to or in connection with the
Loan, this Security Instrument, any other Loan Document, or otherwise
(including, without limitation, representations and warranties
contained herein) or as an inducement to Lender to extend any credit to
or to enter into this or any other agreement with Borrower proves to
have been false in any material respect at the time as of which the
facts therein set forth were stated or certified or to have omitted any
substantial contingent or unliquidated liability or claim against any
Obligor, or if on the date of execution of this Security Instrument any
materially adverse change has occurred in any of the facts previously
disclosed by any such certificate, statement, representation, warranty,
or audit, and such change was not disclosed to Lender at or prior to
the time of the execution of this Security Instrument; or
16
(d) Borrower fails to properly and timely to perform or
observe any other covenant or condition set forth in this Security
Instrument that is not cured within any applicable cure period as set
forth herein or, if no cure period is specified therefor, is not cured
within thirty (30) days of Lender's notice to Borrower thereof;
provided that, if such default cannot be cured by the payment of money
or is not otherwise reasonably susceptible to cure within such thirty
(30) day period, and Borrower diligently and continuously pursues the
cure of such default, then upon Xxxxxxxx's written request therefor,
Lender shall grant a reasonable extension of such cure period, but not
exceeding ninety (90) days; or
(e) The Xxxxxxx REIT fails at any time to be qualified and
taxed as a "real estate investment trust" under Subchapter M of the
Internal Revenue Code; or
(f) Any default or event of default (other than those
specified elsewhere in this Section) occurs pursuant to and as defined
in any of the other Loan Documents.
5.2 Acceleration of Maturity. If an Event of Default has
occurred, Xxxxxx may declare all of the Secured Obligations to be forthwith due
and payable, whereupon all the Secured Obligations shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by Borrower, and Lender may
immediately enforce payment of all such amounts and exercise any or all of its
rights and remedies under this Security Instrument and the other Loan Documents.
No delay or omission on the part of Lender to exercise such option when entitled
so to do shall be considered as a waiver of such right.
5.3 Right of Lender to Enter and Take Possession.
(a) If an Event of Default has occurred, Xxxxxxxx, upon demand of
Lender, shall forthwith surrender to Lender the actual possession of the
Property and, if and to the extent permitted by law, Lender itself, or by such
officers or agents as it may appoint, may enter and take possession of all or
any part of the Property without the appointment of a receiver or an application
therefor, and may exclude Borrower and its agents and employees wholly
therefrom, and take possession of the books, papers and accounts of Xxxxxxxx.
(b) If Borrower shall for any reason fail to surrender or deliver the
Property or any part thereof after such demand by Xxxxxx, Xxxxxx may obtain a
judgment or decree conferring upon Lender the right to immediate possession or
requiring Borrower to deliver immediate possession of the Property to Lender.
Borrower will pay to Lender, upon demand, all expenses of obtaining such
judgment or decree, including compensation to Xxxxxx, its attorneys and agents,
and all such expenses and compensation shall, until paid, become part of the
Secured Obligations and shall be secured by this Security Instrument.
(c) Upon every such entering upon or taking of possession, Lender may
hold, store, use, operate, manage and control the Property and conduct the
business thereof, and, from time to time (i) make all necessary and proper
repairs, renewals, replacements, additions, betterments, and improvements
thereto and purchase or otherwise acquire additional fixtures, personalty, and
other property; (ii) insure or keep the Property insured; (iii) manage and
operate
17
the Property and exercise all the rights and powers of Borrower, in its name or
otherwise, with respect to the same, and (iv) enter into any and all agreements
with respect to the exercise by others of any of the powers herein granted
Xxxxxx, all as Lender may from time to time determine to be to its best
advantage. Lender may collect and receive all Rents and Accounts, 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, purchases, and acquisitions, (cc) the cost of such
insurance, (dd) such taxes, assessments, and other charges as Lender may
reasonably determine to pay, (ee) other proper charges upon the Property or any
part thereof, and (ff) the compensation and expenses of attorneys and agents of
Lender, Lender shall apply the remainder of the money so received to the other
Secured Obligations in such order, priority, and proportions as Lender may
elect. Xxxxxx's sole duty with respect to the custody, safekeeping, and physical
preservation of the Property shall be to deal with it in the same manner as
Lender deals with similar property for its own account. For the purpose of
carrying out the provisions of this Section, Borrower hereby constitutes and
appoints Lender the true and lawful attorney in fact of Xxxxxxxx, which power of
attorney is coupled with an interest and irrevocable, to do and perform, from
time to time, any and all actions necessary and incidental to such purpose and
does, by these presents, ratify and confirm any and all actions of said attorney
in fact on the Property. Anything in this Section to the contrary
notwithstanding, Lender shall not be obligated to discharge or perform the
duties of a landlord to any Lessee or incur any liability as a result of any
exercise by Lender of its rights under this Security Instrument, and Lender
shall be liable to account only for the Rents actually received by Xxxxxx.
(d) Whenever all the Secured Obligations shall have been paid and all
Events of Default shall have been cured, Xxxxxx shall surrender possession of
the Property to Borrower and its successors or assigns. The same right of taking
possession, however, shall exist if any subsequent Event of Default shall occur
and be continuing.
5.4 Performance by Xxxxxx. If Borrower defaults in the payment
of any tax, lien, assessment, or charge levied or assessed against the Property,
or in the payment of any utility charge, whether public or private, or in the
payment of any insurance premium, or in the procurement of insurance coverage
and the delivery of the insurance policies required in this Security Instrument,
or in the performance or observance of any other covenant, condition, or term of
this Security Instrument, then Lender, at its option, may perform or observe the
same, and all payments made or costs incurred by Lender in connection therewith
shall constitute Secured Obligations and shall be, without demand, immediately
repaid by Borrower to Lender with interest thereon at the Default Rate specified
in the Note. Lender 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
connection therewith. Xxxxxx is hereby 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 Borrower.
18
5.5 Appointment of a Receiver. If an Event of Default has
occurred, Lender, upon application to a court of competent jurisdiction, shall
be entitled, without regard to the adequacy of any security for the Secured
Obligations 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 and revenues thereof. Borrower will pay to
Lender upon demand all expenses, including, without limitation, all receivers'
fees, reasonable attorneys' fees actually incurred at standard billable rates,
and agent's compensation, incurred pursuant to the provisions of this Section,
and all such expenses shall constitute Secured Obligations.
5.6 Power of Sale. If an Event of Default has occurred,
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 Secured Obligations and all expenses of the sale and
of all proceedings in connection therewith, including reasonable attorneys'
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.
With respect to any personal property or fixtures included in or located on the
Property, Lender may, at its option, sell or otherwise dispose of the same by
public or private proceedings, separate from the sale of the real property, in
accordance with the provisions of Section 5.8 below. At any sale conducted
pursuant to this Section, Xxxxxx may execute and deliver to the purchaser a
conveyance of the Property, or any part of the Property, or any personal
property or fixtures included in or located on the Property, in fee simple,
which conveyance may contain recitals as to the occurrence of an Event of
Default hereunder, and to this end Borrower hereby constitutes and appoints
Lender its agent and attorney in fact to make such sale and conveyance and
thereby to divest Borrower of all right, title, or equity in and to the Property
and to vest the same in the purchaser or purchasers at such sale or sales, and
all the reasonable acts and doings of said agent and attorney in fact are hereby
ratified and confirmed. The aforesaid power of sale and agency hereby granted
are coupled with an interest and are irrevocable by dissolution or otherwise,
are granted as cumulative of the other remedies provided by law for collection
of the Secured Obligations, and shall not be exhausted by one exercise thereof
but may be exercised until full payment of the Secured Obligations.
5.7 Xxxxxx's Power of Enforcement. If an Event of Default has
occurred, Lender may, either with or without entry or taking possession as
hereinabove provided or otherwise and in lieu of or in addition to exercising
any power of sale hereinafter given in this Security Instrument, proceed by suit
or suits at law or in equity or any other appropriate proceeding or remedy (i)
to enforce payment of the Note or the performance of any term thereof or any
other right, (ii) to foreclose this Security Instrument and to sell the Property
as provided by law or in equity, and (iii) to pursue any other remedy available
to it, all as Lender shall deem most effectual for such purposes. Lender shall
take action either by such proceedings or by the exercise of its powers with
respect to entry or taking possession, as Lender may determine.
5.8 UCC Remedies. This Security Instrument is both a deed to
secure debt and a "security agreement" within the meaning of the UCC. The
Property includes both real and personal property and all other rights and
interests, whether tangible or intangible in nature, of Borrower in the
Property. Borrower by executing and delivering this Security Instrument has
granted and hereby grants to Lender, as security for the Secured Obligations, a
security interest in the Property to the full extent that the Property may be
subject to the UCC (said portion of the Property so subject to the UCC being
referred to in this Security Instrument as the "Collateral").
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If an Event of Default occurs, Lender may exercise, in addition to all other
rights and remedies granted to it in this Security Instrument and in any other
Loan Document, all rights and remedies of a secured party under the UCC. Without
limiting the generality of the foregoing, Lender, without demand of performance
or other demand, presentment, protest, advertisement or notice of any kind
(except any notice required by law referred to below) to or upon Borrower or any
other person (all and each of which demands, defenses, advertisements and
notices are hereby waived), may in such circumstances forthwith collect,
receive, appropriate and realize upon the Collateral , or any part thereof,
and/or may forthwith sell, lease, assign, give option or options to purchase, or
otherwise dispose of and deliver the Collateral or any part thereof (or contract
to do any of the foregoing), in one or more parcels at public or private sale or
sales, at any exchange, broker's board or office of Lender or elsewhere upon
such terms and conditions as it may deem advisable and at such prices as it may
deem best, for cash or on credit or for future delivery without assumption of
any credit risk. Lender shall have the right upon any such public sale or sales,
and, to the extent permitted by law, upon any such private sale or sales, to
purchase the whole or any part of the Collateral so sold, free of any right or
equity of redemption in Borrower, which right or equity is hereby waived or
released. Xxxxxxxx further agrees, at Xxxxxx's request, to assemble the
Collateral and make it available to Lender at places which Lender shall
reasonably select, whether at Borrower's premises or elsewhere. If any notice of
a proposed sale or other disposition of the Collateral shall be required by law,
such notice shall be deemed reasonable and proper if given at least ten (10)
days before such sale or other disposition.
5.9 Purchase by Xxxxxx. Upon any foreclosure or other sale of
or any portion of the Property, Lender may bid for and purchase the Property or
any part thereof and shall be entitled to apply all or any part of the Secured
Obligations as a credit to the purchase price.
5.10 Application of Proceeds of Sale. Any purchase money,
proceeds, and avails of any sale or other disposition of the Property, or any
part thereof, or any other sums collected by Lender pursuant to this Security
Instrument, the Note, or the other Loan Documents may be applied by Xxxxxx, to
the extent funds are so available, to the payment of the Secured Obligations in
such priority and proportions as Lender in its discretion shall deem proper.
5.11 Borrower as Tenant Holding Over. If any sale of the
Property or any part thereof occurs pursuant to this Security Instrument,
Borrower shall be deemed a tenant holding over and shall forthwith deliver
possession to the purchaser or purchasers at such sale or be summarily
dispossessed according to provisions of law applicable to tenants holding over.
5.12 Discontinuance of Proceedings; Restoration of Parties. If
Lender proceeds to enforce any right of remedy under this Security Instrument by
receiver, entry, or otherwise and such proceedings are discontinued or abandoned
for any reason or are determined adversely to Lender, then and in every such
case Borrower and Lender shall be restored to their former positions and rights
hereunder, and all rights, powers and remedies of Lender shall continue as if no
such proceeding had been taken.
5.13 Remedies Cumulative. No right, power, or remedy conferred
upon or reserved to Lender by this Security Instrument or any of the other Loan
Documents 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 under this
Security Instrument, any such other Loan Document, or now or
20
hereafter existing at law or in equity or by statute. The exercise by Lender of
any such right, power, and remedy shall not operate as an election of remedies
by Xxxxxx and shall not preclude the exercise by Lender of any or all other such
rights, powers, or remedies. If the sale of all or any part of the Property is
permitted hereunder, then such sale of the Property may be in one or more
parcels and in such manner and order as Lender, in its sole discretion, may
elect, it being expressly understood and agreed that the right of sale arising
out of an Event of Default shall not be exhausted by any one or more sales, but
other and successive sales may be made until all of the Property has been sold
or until the Secured Obligations have been fully satisfied.
5.14 Waiver of Appraisement, Valuation, Exemption, Etc.
Borrower agrees, to the full extent permitted by law, that in case of an Event
of Default hereunder, neither Xxxxxxxx nor anyone claiming through or under
Borrower will set up, claim or seek to take advantage of any appraisement,
valuation, stay, extension, exemption, or laws now or hereafter in force, in
order to prevent or hinder the enforcement or foreclosure of this Security
Instrument, or the absolute sale of the Property or any part thereof, or the
delivery of possession thereof immediately after such sale to the purchaser at
such sale, and Borrower, for itself and all who may at any time claim through or
under Borrower, 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 assets subject to
the lien and security interest of this Security Instrument marshaled upon any
foreclosure or sale under the power herein granted.
5.15 Suits to Protect the Property. Lender shall have power
(i) 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 any violation of this Security Instrument, (ii) to preserve or
protect its interest in the Property and in the Rents, and (iii) 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 Xxxxxx.
5.16 Delay or Omission No Waiver. No delay or omission of
Lender or of any holder of the Note to exercise any right, power, or remedy
accruing upon any Event of Default shall exhaust or impair any such right,
power, or remedy or shall be construed to be a waiver of any such Event of
Default, or acquiescence therein, and every right, power, and remedy given by
this Security Instrument to Lender may be exercised from time to time and as
often as may be deemed expedient by Lender.
5.17 No Waiver of Event of Default to Affect Another, etc. No
waiver of any Event of Default hereunder shall extend to or shall affect any
subsequent or any other then existing Event of Default or shall impair any
rights, powers, or remedies consequent thereon. If Lender (i) grants forbearance
or an extension of time for the payment of any of the Secured Obligations, (ii)
takes other or additional security for the payment of the Secured Obligations,
(iii) waives or does not exercise any right granted in the Note, this Security
Instrument, or any of the other Loan Documents, (iv) releases any part of the
Property from the lien and interest of this Security Instrument or otherwise
changes any of the terms of the Note, this Security Instrument, or any of the
other Loan Documents, (v) consents to the filing of any map, plat, or replat
pertaining to the Property, (vi) consents to the granting of any easement or
license affecting the Property, or (vii) makes or consents to any agreement
subordinating the lien and interest of this Security
21
Instrument, then any such act or omission shall not release, discharge, modify,
change, or affect the original liability under the Note, this Security
Instrument, or otherwise of Borrower 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 Lender from exercising any right,
power, or privilege herein granted or intended to be granted in the event of any
other Event of Default then made or of any subsequent Event of Default, nor,
except as otherwise expressly provided in an instrument or instruments executed
by Xxxxxx, shall the lien and security interest of this Security Instrument 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, Lender, at its option, without
notice to any person or entity, hereby is authorized and empowered to deal with
any such vendee or transferee with reference to the Property or the Secured
Obligations, or with reference to any of the terms or conditions hereof, 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.
5.18 Proofs of Claim. In the case of any receivership,
insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or
other proceedings affecting Borrower or its creditors or property, Lender, to
the extent permitted by law, shall be entitled to file such proofs of claim and
other documents as may be necessary or advisable in order to have the claims of
Lender allowed in such proceedings for the entire amount due and payable by
Borrower under this Security Instrument at the date of the institution of such
proceedings and for any additional amount which may become due and payable by
Xxxxxxxx hereunder after such date.
ARTICLE SIX - REPRESENTATIONS AND WARRANTIES
In addition to any other representations and warranties set forth
herein, Borrower represents and warrants to Lender that:
6.1 Due Organization and Authority. Borrower is a limited
partnership duly organized, validly existing, and in good standing under the
laws of the State of Georgia. Borrower has the requisite power and authority to
(i) to own its properties and to carry on its business as now conducted and as
contemplated to be conducted in connection with the performance of the Secured
Obligations hereunder and under the other Loan Documents and (ii) to execute and
deliver this Security Instrument and the other Loan Documents, to incur and
perform the Secured Obligations, and to carry out the transactions contemplated
by this Security Instrument and the other Loan Documents.
6.2 Due Authorization. The execution, delivery, and
performance of this Security Instrument and the other Loan Documents have been
duly authorized by all necessary action and proceedings by or on behalf of
Xxxxxxxx and the Xxxxxxx REIT, and no further approvals or filings of any kind,
including any approval of or filing with any governmental authority, are
required by or on behalf of Borrower as a condition to the valid execution,
delivery, and performance by Borrower of this Security Instrument and the other
Loan Documents.
6.3 Enforceability. This Security Instrument and each of the
other Loan Documents have been duly authorized, executed, and delivered by
Xxxxxxxx and constitute the legal, valid, and binding obligation of Borrower,
enforceable against Borrower in accordance with their respective terms, except
as such enforceability may be affected by applicable conservatorship,
bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting of
the enforcement of
22
creditors' rights generally. This Security Instrument and the other Loan
Documents are not subject to any right of rescission, set_off, counterclaim, or
defense by Xxxxxxxx, including the defense of usury, and Xxxxxxxx has not
asserted any right of rescission, set_off, counterclaim, or defense with respect
thereto.
6.4 No Conflicts. Neither the execution and delivery of this
Security Instrument and the other Loan Documents, nor the fulfillment of or
compliance with the terms and conditions of this Security Instrument and the
other Loan Documents, nor the performance of the Secured Obligations (i)
conflicts with or result in (or will conflict with or result in) any breach or
violation of any legal requirement enacted or issued by any governmental
authority or other agency having jurisdiction over Borrower or any portion of
the Property, or any judgment or order applicable to Borrower, or to which
Borrower or any portion of the Property is subject; (ii) conflicts with or
result in (or will conflict with or result in) any material breach or violation
of, or constitute a default under, any of the terms, conditions, or provisions
of Borrower's organizational documents, any indenture, existing agreement, or
other instrument to which Borrower is a party, or to which Borrower or any
portion of the Property is subject; (iii) results in or requires (or will result
in or require) the creation of any lien on all or any portion of the Property,
except for the Permitted Encumbrances; or (iv) requires (or will require) the
consent or approval of any creditor of Borrower, any governmental authority, or
any other person or entity except such consents or approvals that have already
been obtained.
6.5 Pending Litigation or other Proceedings. There is no
pending or, to the best knowledge of Borrower, threatened action, suit,
proceeding, or investigation, at law or in equity, before any court, board,
body, or official of any governmental authority or arbitrator against or
affecting the Property or any other portion thereof or other assets of Borrower
or the Xxxxxxx REIT, which, if decided adversely to Borrower or the Xxxxxxx
REIT, would have, or may reasonably be expected to have, a material adverse
effect upon any of (i) the business, operations, property, or condition
(financial or otherwise) of any Obligor, (ii) the present or future ability of
any Obligor to perform the Secured Obligations for which it is liable, (iii) the
validity, priority, perfection or enforceability of this Security Instrument or
any other Loan Document or the rights or remedies of the Lender under any Loan
Document, or (iv) the value of, or the Lender's ability to have recourse
against, the Property or any part thereof or interest therein.
6.6 Compliance with the Loan Documents. Borrower is in
compliance with all provisions of the Loan Documents to which it is a party or
by which it is bound. The representations and warranties made by Borrower in the
Loan Documents are true, complete and correct and do not contain any untrue
statement of material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not misleading.
6.7 Non-Foreign Person. Borrower is not a "foreign person"
within the meaning ofss. 1445(f)(3) of the Internal Revenue Code.
6.8 ERISA. Neither Borrower nor any member of the "controlled
group" of Xxxxxxxx has established and is a party to an "employee benefit plan"
within the meaning of Section 3(3) of Employee Retirement Income Security Act of
1974, as amended from time to time ("ERISA"), or any other option or deferred
compensation plan or contract for the benefit of its employees or officers,
pension, profit sharing or retirement plan, redemption agreement, or any other
agreement or arrangement with any officer, director or owner, members of their
families, or
23
trusts for their benefit, and the assets of Borrower do not and shall not
constitute "plan assets" of one more such plans for purposes of ERISA.
6.9 Investment Company Act. Borrower is not (i) an "investment
company" or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended, (ii) a "holding
company" or a "subsidiary company" of a "holding company" or an "affiliate" of
either a "holding company" or a "subsidiary company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended, or (iii) subject to any
other federal or state law or regulation that purports to restrict or regulate
its ability to borrow money.
6.10 Accuracy of Information. No information, statement, or
report furnished in writing to Lender by Borrower in connection with this
Security Instrument or any other Loan Document, or in connection with the
consummation of the transactions contemplated hereby and thereby, contains any
material misstatement of fact or omits to state a material fact necessary to
make the statements contained therein, in light of the circumstances under which
they were made, not misleading.
6.11 No Conflicts of Interest. To the best knowledge of
Xxxxxxxx, no officer, agent, or employee of Lender has been or is in any manner
interested, directly or indirectly, in that Person's own name, or in the name of
any other Person, in the Loan Documents, Borrower, or the Property, in any
contract for property or materials to be furnished or used in connection with
the Property, or in any aspect of the transactions contemplated by the Loan
Documents.
6.12 No Reliance. Borrower acknowledges, represents, and
warrants that it understands the nature and structure of the transactions
contemplated by this Security Instrument and the other Loan Documents, that it
is familiar with the provisions of all of the documents and instruments relating
to such transactions, that it understands the risks inherent in such
transactions, including the risk of loss of the Property or a part thereof, and
that it has not relied on Lender for any guidance or expertise in analyzing the
financial or other consequences of the transactions contemplated by this
Security Instrument or any other Loan Document or otherwise relied on Lender in
any manner in connection with interpreting, entering into, or otherwise in
connection with this Security Instrument, any other Loan Document, or any of the
matters contemplated hereby or thereby.
6.13 Status as a Real Estate Investment Trust. The Xxxxxxx
REIT is qualified, and is taxed as, a real estate investment trust under
Subchapter M of the Internal Revenue Code, and is not engaged in any activities
which would jeopardize such qualification and tax treatment.
ARTICLE SEVEN - TERMINATION
24
This Security Instrument shall be canceled and thereafter be of no
further force and effect in the event that all of the Secured Obligations shall
have been paid, performed, and satisfied in full. Upon such termination and at
Xxxxxxxx's request and expense, Xxxxxx shall execute, acknowledge, and deliver
to Borrower an instrument, in proper form for recording, without warranty,
reconveying to Borrower the Property.
ARTICLE EIGHT - DOCUMENT PROTOCOLS
This Security Instrument and each of the other Loan Documents shall be
governed by the following protocols (the "Document Protocols"), unless any Loan
Document expressly states that the Document Protocols shall not apply to such
Loan Document in whole or in part:
8.1 General Rules of Usage. These Document Protocols shall
apply to such Loan Document as from time to time amended, modified, replaced,
restated, extended or supplemented, including by waiver or consent, and to all
attachments thereto and all other documents or instruments incorporated therein.
When used in any Loan Document governed by these Document Protocols, (i)
references to a Person are, unless the context otherwise requires, also to its
heirs, executors, legal representatives, successors, and assigns, as applicable,
(ii) "hereof," "herein," "hereunder" and comparable terms refer to the entire
Loan Document in which such terms are used and not to any particular article,
section, or other subdivision thereof or attachment thereto, (iii) references to
any gender include, unless the context otherwise requires, references to all
genders, and references to the singular include, unless the context otherwise
requires, references to the plural, and vice versa, (iv) "shall" and "will" have
equal force and effect, (v) references in a Loan Document to "Article,"
"Section," "paragraph" or another subdivision or to an attachment are, unless
the context otherwise requires, to an article, section, paragraph, or
subdivision of or an attachment to such Loan Document, (vi) all accounting terms
not otherwise defined therein have the meanings assigned to them in accordance
with GAAP, and (vii) "include," "includes" and "including" shall be deemed to be
followed by "without limitation" whether or not they are in fact followed by
such words or words of like import.
8.2 Notices. All notices, consents, approvals, statements,
requests, reports, demands, instruments or other communications to be made,
given or furnished pursuant to, under or by virtue of such Loan Document (a
"notice") shall be in writing and shall be deemed given or furnished if
addressed to the party intended to receive the same at the address of such party
as set forth below (i) upon receipt when personally delivered at such address,
or (ii) one Business Day after the date of delivery of such notice to a
nationwide, reputable commercial courier service:
25
Lender: SouthTrust Bank
000 Xxxxx Xxxxxxxxx Xxxxxx
XxxxxXxxxx Xxxxx - 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Commercial Real Estate Loan Dept.
with copy to (which alone shall not constitute
notice):
Xxxx X. Xxxxxx, Esq.
Xxxx & Xxxxxx LLP
One Georgia Center, Suite 0000
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Borrower: Xxxxxxx Properties Residential, L.P.
c/o Xxxxxxx X. Xxxxxxx, CFO
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Xxxxxxx REIT: Xxxxxxx Realty Investors, Inc.
c/o Xxxxxxx X. Xxxxxxx, CFO
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Any party may change the address to which any notice is to be delivered to any
other address within the United States of America by furnishing written notice
of such change at least fifteen (15) days prior to the effective date of such
change to the other parties in the manner set forth above, but no such notice of
change shall be effective unless and until received by such other parties.
Rejection or refusal to accept, or inability to deliver because of changed
address or because no notice of changed address was given, shall be deemed to be
receipt of any such notice. Any notice to an entity shall be deemed to be given
on the date specified in this Section without regard to when such notice is
delivered by the entity to the individual to whose attention it is directed and
without regard to the fact that proper delivery may be refused by someone other
than the individual to whose attention it is directed. If a notice is received
by an entity, the fact that the individual to whose attention it is directed is
no longer at such address or associated with such entity shall not affect the
effectiveness of such notice. Notices may be given on behalf of any party by
such party's attorneys.
8.3 Severability. Whenever possible, each provision of such
Loan Document shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of such Loan Document shall be
prohibited by or invalid or unenforceable under the applicable law of any
jurisdiction with respect to any Person or circumstance, such provision shall be
ineffective to the extent of such prohibition, invalidity or unenforceability,
without invalidating the remaining provisions of such Loan Document or affecting
the validity or
26
enforceability of such provisions in any other jurisdiction or with respect to
other Persons or circumstances. To the extent permitted by applicable law, the
parties to such Loan Document thereby waive any provision of law that renders
any provision thereof prohibited, invalid or unenforceable in any respect.
8.4 Remedies Not Exclusive. No remedy therein conferred upon
or reserved to Lender is intended to be exclusive of any other remedy or
remedies available to Lender under such Loan Document, at law, in equity or by
statute, and each and every such remedy shall be cumulative and in addition to
every other remedy given thereunder or now or hereafter existing at law, in
equity or by statute.
8.5 Liability. If any Obligor consists of more than one
Person, the obligations and liabilities of each such Person under such Loan
Document shall be joint and several, except as expressly provided to the
contrary in such Loan Document.
8.6 Binding Obligations; Covenants Run with the Land. Such
Loan Document shall be binding upon such Xxxxxxx and the successors, assigns,
heirs and personal representatives of such Xxxxxxx, and shall inure to the
benefit of Lender and all subsequent holders of such Loan Document and their
respective officers, directors, employees, shareholders, agents, successors and
assigns. Nothing in such Loan Document, whether express or implied, shall be
construed to give any person (other than the parties thereto and their permitted
successors and assigns and as expressly provided therein) any legal or equitable
right, remedy or claim under or in respect of such Loan Document or any
covenants, conditions or provisions contained therein. If such Loan Document is
to be recorded, all of the grants, covenants, terms, provisions, covenants and
conditions of such Loan Document shall run with the land.
8.7 No Oral Modifications. Such Loan Document, and any of the
provisions thereof, cannot be altered, modified, amended, waived, extended,
changed, discharged or terminated orally or by any act on the part of any
Obligor or Lender, but only by an agreement in writing signed by the party
against whom enforcement of any alteration, modification, amendment, waiver,
extension, change, discharge or termination is sought. Without limiting the
generality of the foregoing, any payment made by Lender for insurance premiums,
impositions or any other charges affecting the Property shall not constitute a
waiver of any Obligor's default in making such payments and shall not obligate
Lender to make any further payments.
8.8 Entire Agreement. Such Loan Document, together with the
other applicable Loan Documents, constitutes the entire agreement of the parties
thereto with respect to the subject matter thereof and supersedes all prior
written and oral agreements and understandings with respect to such subject
matter.
8.9 Waiver of Acceptance. Obligors hereby waive any acceptance
of such Loan Document by Xxxxxx in writing, and such Loan Document shall
immediately be binding upon such Obligor.
8.10 Jurisdiction, Court Proceedings. Each of Lender and
Obligors, to the fullest extent permitted by law, hereby knowingly,
intentionally, and voluntarily, with and upon the advice of competent counsel,
(i) submits to personal, nonexclusive jurisdiction in the State of Georgia with
respect to any suit, action, or proceeding by any person arising from, relating
to, or in connection with such Loan Document or the Loan, (ii) agrees that
27
any such suit, action, or proceeding may be brought in any state or federal
court of competent jurisdiction sitting in the State of Georgia, and (iii)
submits to the jurisdiction of such courts. Each Obligor, to the fullest extent
permitted by law, hereby knowingly, intentionally, and voluntarily, with and
upon the advice of competent counsel, further agrees that it shall not bring any
action, suit, or proceeding in any forum other than in the state or federal
courts of the State of Georgia (but nothing herein shall affect the right of
Lender to bring any action, suit, or proceeding in any other forum), and
irrevocably agrees not to assert any objection which it may ever have to the
laying of venue of any such suit, action, or proceeding in any federal or state
court located in Georgia and any claim that any such action, suit, or proceeding
brought in any such court has been brought in an inconvenient forum.
8.11 Waiver of Counterclaim. Obligors each hereby knowingly
waives the right to assert any counterclaim, other than a compulsory or
mandatory counterclaim, in any action or proceeding brought against either of
them by Xxxxxx.
8.12 Waiver of Jury Trial. Obligors and Lender, to the full
extent permitted by law, each hereby knowingly, intentionally, and voluntarily,
with and upon the advice of competent counsel, waives, relinquishes, and forever
forgoes hereby the right to a trial by jury in any action or proceeding,
including, without limitation, any tort action, brought by any of them against
the other based upon, arising out of, or in any way relating to or in connection
with such Loan Document, the Loan, or any course of conduct, act, omission,
course of dealing, statements (whether verbal or written) or actions of any
Person (including, without limitation, such Person's directors, officers,
partners, members, employees, agents or attorneys, or any other Persons
affiliated with such Person), in connection with the Loan or such Loan Document,
including, without limitation, in any counterclaim which any Obligor may be
permitted to assert thereunder or which may be asserted by Lender against such
Obligor, whether sounding in contract, tort, or otherwise. This waiver by
Obligors of their right to a jury trial is a material inducement for Lender to
make the Loan.
8.13 No Waivers by Xxxxxx. No delay or omission of Lender in
exercising any right or power accruing upon any default under such Loan Document
shall impair any such right or power or shall be construed to be a waiver of any
default under such Loan Document or any acquiescence therein, nor shall any
single or partial exercise of any such right or power or any abandonment or
discontinuance of steps to enforce such right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. Acceptance
of any payment after the occurrence of a default under such Loan Document shall
not be deemed to waive or cure such default under such Loan Document; and every
power and remedy given by such Loan Document to Lender may be exercised from
time to time as often as may be deemed expedient by Xxxxxx. Obligors hereby
waive any right to require Lender at any time to pursue any remedy in Xxxxxx's
power whatsoever.
8.14 Waiver of Notice. No Obligor shall be entitled to any
notices of any nature whatsoever from Lender except with respect to matters for
which such Loan Document specifically and expressly provides for the giving of
notice by Lender to such Obligor, and except with respect to matters for which
such Obligor is not, pursuant to applicable legal requirements, permitted to
waive the giving of notice. Each Obligor hereby expressly waives the right to
receive any notice from Lender with respect to any matter for which such Loan
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Document does not specifically and expressly provide for the giving of notice by
Lender to such Obligor. Any provision of such Loan Document which expressly
provides for the giving of notice by Lender to any Obligor shall be deemed
eliminated ab initio if Lender is prevented from giving such notice by
bankruptcy or other applicable law.
8.15 Offsets, Counterclaims and Defenses. Any assignee of such
Loan Document from Lender or any successor or assignee of Lender shall take the
same free and clear of all offsets, counterclaims, or defenses that are
unrelated to such Loan Document which any Obligor may otherwise have against any
assignor of such Loan Document, and no such unrelated counterclaim or defense
shall be interposed or asserted by any Obligor in any action or proceeding
brought by any such assignee upon such Loan Document, and any such right to
interpose or assert any such unrelated offset, counterclaim or defense in any
such action or proceeding is hereby expressly waived by Obligors.
8.16 Time of the Essence. Time shall be of the essence in the
performance of all obligations of Obligors and Lender under such Loan Document.
8.17 Governing Law. Such Loan Document shall be governed by,
and construed in accordance with, the laws of the State of Georgia.
8.18 Sole Discretion of Lender. Wherever pursuant to such Loan
Document, Lender exercises any right given to it to approve or disapprove, or
any arrangement or term is to be satisfactory to Lender, the decision of Lender
to approve or disapprove or to decide that arrangements or terms are
satisfactory or not satisfactory shall be in the sole discretion of Lender
exercised in subjective good faith and shall be final and conclusive, except as
may be otherwise specifically provided therein. In addition, Lender shall have
the right to refuse to grant its consent, approval or acceptance or to indicate
its satisfaction whenever such consent, approval, acceptance or satisfaction
shall be required under such Loan Document, subject to the applicable standard
of discretion.
8.19 Counterparts. Such Loan Document may be executed in any
number of separate counterparts, each of which, when so executed and delivered,
shall be deemed an original, but all of which, collectively and separately,
shall constitute one and the same Loan Document. All signatures need not be on
the same counterpart. The failure of any party thereto to execute such Loan
Document, or any counterpart hereof, shall not relieve the other signatories
from their obligations hereunder.
8.20 Exhibits Incorporated; Headings. The information set
forth on the cover of such Loan Document, the table of contents, the headings,
and the exhibits annexed thereto, if any, shall be deemed to be incorporated
therein as a part thereof with the same effect as if set forth in the body
thereof. The headings and captions of the various articles, sections, and
paragraphs of such Loan Document are for convenience of reference only and shall
not be construed as modifying, defining, or limiting, in any way, the scope or
intent of the provisions thereof.
8.21 Interpretation. No provision of such Loan Document shall
be construed against or interpreted to the disadvantage of any party thereto by
any court or other governmental or judicial authority by reason of such party's
having or being deemed to have structured or dictated such provision.
29
8.22 Remedies of Obligors. If any Obligor shall seek the
approval or consent of Lender under such Loan Document, which Loan Document
expressly provides that Xxxxxx's approval shall not be unreasonably withheld,
and Lender shall fail or refuse to give such consent or approval, the burden of
proof as to whether or not Lender acted unreasonably shall be upon such Obligor,
provided Lender has given such Obligor a written explanation for the disapproval
or lack of consent.
8.23 Release of any Party or Collateral. Lender may at any
time, without releasing or impairing the liability of any Person liable upon or
in respect of such Loan Document, release, surrender, substitute, or exchange
any Collateral securing this Note and may at any time release any other Person
primarily or secondarily liable for the Secured Obligations.
8.24 Attorneys' Fees. Wherever it is provided in such Loan
Document that any Obligor pay any costs and expenses, such costs and expenses
shall include, without limitation, all reasonable attorneys', paralegal and law
clerk fees and disbursements, including, without limitation, fees and
disbursements at the pre-trial, trial and appellate levels, which are actually
incurred or paid by Lender at standard billable rates; provided that the
foregoing reference to "reasonable" fees (and any other such references in such
Loan Document) shall be deemed to include only such fees that are based upon
normal hourly rates and the number of hours worked, and not the attorneys' fees
statutorily defined on O.C.G.A. ss. 13-1-11.
8.25 Method of Payment. All amounts required to be paid by any
party to such Loan Document to any other party shall be paid in such freely
transferable coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts.
8.26 True Copy. By executing such Loan Document, each Obligor
acknowledges that it has received a true copy of such Loan Document.
[THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY]
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IN WITNESS WHEREOF, Xxxxxxxx has caused this Security Instrument to be
signed and sealed by its duly authorized representative as of the day and year
first above written.
Signed, sealed, and delivered XXXXXXX PROPERTIES RESIDENTIAL, L.P.
in the presence of: a Georgia limited partnership
By: Xxxxxxx Realty Investors, Inc.,
------------------------------------
Unofficial Witness a Georgia corporation
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxx Public ----------------------------------
Commission expiry: Name: Xxxxxxx X. Xxxxxxx
------------------
Title: Secretary and Treasurer
[Affix notarial seal] [Affix corporate seal]
