After recording please return to:
Clifford A. Barshay, Esq.
SCHREEDER, WHEELER & FLINT
1600 Candler Building
127 Peachtree Street, N.E.
Atlanta, GA 30303-1845
404-681-3450
STATE OF GEORGIA
COUNTY OF DEKALB
DEED TO SECURE DEBT AND SECURITY AGREEMENT
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THIS INDENTURE (sometimes referred to as a "Deed" or a "Security
Deed"), made as of the 27th day of April, 1999, between VININGS INVESTMENT
PROPERTIES, L.P., a Delaware limited partnership, with an address of 3111 Paces
Mill Road, Suite A-200, Atlanta, Georgia 30339, as party of the first part,
hereinafter called "Grantor," and BANK ATLANTA, a national bank, with a mailing
address of 1221 Clairmont Road, Decatur, Georgia 30030, as party of the second
part, hereinafter called "Grantee."
W I T N E S S E T H T H A T:
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For and in consideration of the sum of Ten and 00/100 Dollars ($10.00)
in hand paid, the loan evidenced by the Note hereinafter described, and other
good and valuable considerations, the receipt and sufficiency of which is hereby
acknowledged, Grantor does hereby bargain, sell, grant, convey and assign to
Grantee, its successors and assigns, all of the following described land,
easements, buildings, improvements, fixtures, furniture and appliances and other
personal property (hereinafter sometimes collectively called the "Premises"),
to-wit:
(a) All that tract or parcel of land lying and being in Land Lot 277 of
the 6th District of Gwinnett County, Georgia being more particularly described
in Exhibit "A" attached hereto and made a part hereof;
(b) All buildings, structures and improvements now or hereafter located
upon said properties; and
(c) All machinery, apparatus, equipment, fittings, furniture and
fixtures, whether actually or constructively attached to said properties and
including all trade, domestic and ornamental fixtures, and articles of personal
property of every kind and nature, now or hereafter located in, upon or under
said properties, used or usable in connection with any present or future
operation of said properties, and now owned or hereafter acquired by Grantor,
including, but without limiting the generality of the foregoing, all heating,
air conditioning, freezing, lighting, laundry, incinerating and power equipment;
engines; pipes; pumps; tanks; motors; conduits; switchboards and other
electrical equipment; plumbing, lifting, cleaning, fire prevention,
refrigerating and communications apparatus; sewer treatment plants, facilities
and apparatus; boilers, heaters and furnaces; refrigerators, ranges,
dishwashers, disposals and other appliances; vacuum cleaning systems; elevators;
escalators; shades; awnings; screens; doors and windows; cabinets; partitions;
ducts and compressors; rugs and carpets; draperies; furniture and furnishings;
all swimming pool, clubhouse and other recreational equipment and supplies; all
building materials and equipment now or hereafter delivered to said properties
and intended to be installed therein; all posters, signs and billboards and
other outdoor advertising displays; and all additions, replacements and
substitutions thereof and the proceeds of sale or leasing of any of said
fixtures and personal property.
TOGETHER WITH all insurance policies insuring or relating to the
Premises and the proceeds thereof, and all condemnation proceeds and causes of
action related to the Premises as set out hereafter.
TOGETHER WITH all and singular the rights, members, tenements,
hereditaments, easements and appurtenances whatsoever, in any way belonging,
relating or appertaining to any of the Premises hereinabove mentioned or which
hereafter shall in any way belong, relate or be appurtenant thereto, whether now
owned or hereafter acquired by Grantor, including but not limited to, all rents,
profits, issues and revenues of the Premises from time to time accruing, whether
under leases or tenancies now existing or hereafter created.
TO HAVE AND TO HOLD the Premises and all parts, rights, members and
appurtenances thereof, to the use, benefit and behoof of Grantee, its successors
and assigns, in fee simple forever; and Grantor covenants and warrants that
Grantor is lawfully seized and possessed of the Premises in fee, has good title
and right to convey the same, that the same are unencumbered, and that Grantor
will warrant and defend title thereto against the claims of all persons
whomsoever.
This conveyance is intended to and shall constitute and be construed as
a deed passing title to the Premises to Grantee, and is made under those
provisions of the existing laws of the State of Georgia (O.C.G.A. ss.44-14-60 et
seq.) relating to conveyances and deeds to secure debt (a/k/a "Security Deed"),
and not as a mortgage. This instrument shall also constitute a security
agreement under the Uniform Commercial Code as to all that part of the Premises
which does not constitute real property. This deed is given to secure: (a) a
debt evidenced by a certain Promissory Note of even date herewith executed by
Grantor payable to the order of Grantee at the office and place of business of
Grantee as stated in the Note, or at such other place as the holder thereof may
from time to time designate in writing, in the principal sum of $2,000,000.00
with interest thereon at the rate therein specified, and having a maturity date
of May 26, 2000 (herein called the "Note") together with any renewal, increase,
modification, alteration or extension of said Note; (b) any other indebtedness
or obligations of Grantor to Grantee arising under the provisions of the Note,
this Security Deed or any other instrument evidencing, guaranteeing, securing or
related to the Note, including, without limitation, that certain Assignment and
Security Agreement of even date herewith between Grantor and Grantee
(hereinafter called the "Additional Loan Documents"), and (c) any other or
future advances made by Grantee to or for the account of Grantor, and all future
debts and obligations of Grantor to Grantee.
Grantor covenants, represents and warrants to and with Grantee as
follows:
ARTICLE I
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1.01 PAYMENT OF INDEBTEDNESS. Grantor will pay the Note according to
the terms thereof, and all other sums secured by this Deed, promptly as the same
shall become due.
1.02 TAXES, LIENS AND OTHER CHARGES.
(a) Grantor shall pay all intangible, documentary, recording or other
tax, charge, expense, cost or fee now or hereafter levied or assessed against or
in respect of the Note or this instrument, whether levied or charged against
Grantor or Grantee, and in the event of the passage of any state, federal,
municipal or other governmental law, order, rule or regulation, in any manner
changing or modifying the laws now in force governing the taxation of debts
secured by security deeds or the manner of collecting taxes so as to affect
adversely Grantee, Grantor will promptly pay any such tax. If Grantor fails to
make such payment, then Grantee may make such payments, and such sums will
become an indebtedness secured by this Deed.
(b) Grantor will pay, before the same become delinquent, all taxes,
liens, assessments and charges of every character levied or assessed or that may
hereafter be levied or assessed upon or against the Premises, and all utility
charges, whether public or private; and upon demand will furnish Grantee
receipted bills evidencing such payment.
(c) Grantor will not suffer any mechanics', materialmen's, laborers',
statutory or other lien to be created and remain outstanding or unbonded upon
any part of the Premises for a period exceeding thirty (30) days.
1.03 INSURANCE.
(a) Grantor (or, in the event any portion of the Premises is ground
leased to a third party, any ground lessee of the Premises) will keep the
buildings, fixtures and property conveyed by this Deed, whether now standing on
the Premises or hereafter erected, continuously insured in such amounts as
Grantee may require (not to exceed one hundred (100%) percent of replacement
value) against all risk of loss or damage by fire and all other casualties or
hazards, including, but not limited to, wind storm, hail, explosion, smoke,
riot, riot attending a strike, civil commotion, aircraft and vehicles and
malicious mischief, together with rents loss and business interruption insurance
covering the loss of rents and income of the Premises due to casualty for a
period of six (6) months. Grantor shall also cause the issuance and maintenance
of comprehensive general public liability insurance policy naming Grantee as an
additional named insured in such amount as Grantee may require. During the time
when improvements are being constructed on the Premises, Grantor and its general
contractor will maintain builder's all-risk insurance on the Premises,
protecting Grantor and Grantee as insured in such amounts as Grantee may
require.
(b) All such insurance at all times will be with an insurance company
or companies lawfully operating in the State of Georgia and having a financial
condition and reputation satisfactory to Grantee. Policy forms and terms must be
acceptable to Grantee, Each policy shall provide that any loss shall be payable
to Grantee as its interest may appear, pursuant to a New York Standard mortgagee
clause or other clause which shall be satisfactory to Grantee, and providing for
thirty (30) days advance notice of expiration, cancellation or non-renewal to
Grantee. Each policy must contain an agreed amount endorsement. Forthwith upon
the issuance of such policies, Grantor will deliver to Grantee an original
counterpart of same, and all renewals thereof, to Grantee, and , unless premium
payments are made through Grantee, receipts for premiums. Any policies furnished
Grantee shall become its property in the event Grantee becomes the owner of
Premises by foreclosure or otherwise. Grantee is hereby authorized and
empowered, at its option, to adjust or compromise any loss under any insurance
policies on the Premises, and to collect and receive the proceeds from any such
policy or policies. Each insurance company is hereby authorized and directed to
make payment for all such losses directly to Grantee, instead of to Grantor and
Grantee jointly.
(c) In case of loss under any such policy of insurance, Grantee may
apply the net insurance proceeds to the payment of the indebtedness hereby
secured, whether due or not; or Grantee may require the building to be repaired
or replaced by the use of said net proceeds (Grantor advancing any additional
funds required). No such action shall affect the lien and title of this Security
Deed or the indebtedness secured hereby, nor shall it delay or satisfy any
installment due under the Note.
1.04 CARE OF PREMISES.
(a) Grantor will keep the improvements now or hereafter erected on the
Premises in good condition and repair, will not commit or suffer any waste and
will not do or suffer to be done anything which will increase the risk of fire
or other hazard to the Premises or any part thereof.
(b) Grantor will not remove, demolish nor materially alter the design
or structural character of any building, fixture, chattel or other part of
Premises without the written consent of Grantee.
(c) Grantee or its representatives shall have access to and is hereby
authorized to enter upon and inspect the Premises at all times.
(d) Grantor will promptly comply with all present and future laws,
ordinances, rules and regulations of any governmental authority affecting the
Premises or any part thereof.
(e) If all or any part of the Premises shall be damaged by fire or
other casualty, Grantor will give immediate written notice of same to Grantee.
If Grantee agrees to release the insurance proceeds received due to such
casualty for restoration of the Premises (which proceeds to be released as
construction and restoration progresses), Grantor will promptly restore the
Premises to the equivalent of its original condition and will advance any funds
necessary for such purpose. If a part of the Premises shall be damaged through
condemnation, Grantor will promptly restore, repair or alter the remaining
property in a manner satisfactory to Grantee.
1.05 FURTHER ASSURANCES. Grantor, from time to time within ten (10)
days after request by Grantee, shall execute, acknowledge and deliver to Grantee
such chattel mortgages, security agreements or other similar security
instruments, in form and content satisfactory to Grantee, covering all property
of any kind and nature owned by Grantor or in which Grantor has an interest
which, in the opinion of Grantee, is essential or necessary to the operation of
the Premises. Grantor shall also, from time to time within ten (10) days after
request by Grantee, execute, acknowledge and deliver any financing statements,
renewal affidavits, certificates, continuation statements or other documents as
Grantee may request in order to perfect, preserve, continue, extend or maintain
the lien and security interest under this Security Deed and the priority of this
Security Deed or any such chattel mortgage or security instrument as a first
lien. Grantor further agrees to pay Grantee on demand all costs and expenses
incurred by Grantee in connection with preparation, execution, filing or
re-filing of any such instrument or document, including charges for examining
title and attorneys fees for preparation of such documents or rendering opinions
as to the priority thereof. However, neither requests so made by Grantee nor the
failure of Grantee to make such requests shall be construed as a release of such
property or any part thereof from the lien and title of this Security Deed, it
being understood and agreed that this covenant and any such security agreement
or other similar security instruments delivered to Grantee are cumulative and
are given as additional security. If Grantor fails to execute any document upon
request, Grantee may make, execute and record same for and in the name of
Grantor, and Grantor hereby irrevocably appoints Grantee the agent and
attorney-in-fact of Grantor so to do.
1.06 LEASES AND RENTAL AGREEMENTS AFFECTING THE PREMISES.
(a) Grantor shall faithfully perform the covenants of Grantor as lessor
under any present and future leases and rental agreements affecting all or any
portion of the Premises, and neither do nor neglect to do, nor permit to be done
anything which may cause the termination of said leases and rental agreements,
or any of them, or which may diminish or impair their value or the rents
provided for them or the interest of Grantor or Grantee therein or thereunder.
Grantor shall procure and deliver to Grantee, at any time within thirty (30)
days after notice and demand, estoppel letters or certificates from each lessee,
tenant or occupant in possession of the Premises, confirming the status of the
lease, payment of rent, any alleged or actual defaults, and other statements
required by Grantee, in form and substance satisfactory to, Grantee. Grantee
shall have the right of prior approval of the form and content of all leases,
management contracts and rental agreements used by Grantor for the Premises.
(b) With respect to any existing or future leases, tenancies or other
occupancy arrangements affecting the Premises or any part thereof, Grantor
agrees that Grantor shall not, without the prior written consent of Grantee: (i)
amend or modify any such lease; or (ii) waive any obligation of any tenant
thereunder or accept the surrender or cancellation thereof; or (iii) grant any
approval of consent or waiver to any tenant thereunder (including, without
limitation, an approval or consent to any assignment or subletting); or (iv)
cause, permit or omit to take any action which might reasonably result in the
impairment of the value to Grantee of the security interest of Grantee in any
such lease, or might reasonably result in any termination (other than by normal
expiration) or loss of rental thereunder; (v) collect rents for more than thirty
(30) days in advance; or (vi) cause, permit or consent to any default
thereunder, or any event or circumstance which might reasonably be expected to
ripen into a default with the passage of time or notice.
1.07 EXPENSES. Grantor will immediately pay or reimburse Grantee for
all reasonable attorneys' fees actually incurred and all costs and expenses
incurred by Grantee in any legal proceeding or dispute of any kind to which
Grantee is made a party, or appears as party plaintiff, defendant or otherwise,
affecting this Deed or the indebtedness secured by or the interest created by
this Deed, or the Premises, including but not limited to, any condemnation
action involving the Premises, any bankruptcy or insolvency proceeding affecting
Grantor or the Premises or any action to protect the security hereof. Any such
amounts paid by Grantee shall be added to the indebtedness secured by this Deed.
The rights under this paragraph are in addition to Grantee's right to attorneys'
fees as defined and limited by O.C.G.A. ss.13-1-11.
1.08 SUBROGATION. Grantee shall be subrogated to the claims and liens
of all parties whose claims or liens are discharged or paid with the proceeds of
the indebtedness secured hereby.
1.09 PERFORMANCE BY GRANTEE OF DEFAULTS BY GRANTOR. If Grantor shall
default (or if it shall appear to Grantee that Grantor may default) in the
payment of any tax, lien, assessment or charge levied or assessed against the
Premises; in the payment of any utility charge, whether public or private; in
the procurement of insurance coverage and the delivery of the insurance policies
required hereunder; in any obligation of Grantor as landlord in any lease of all
or portion of the Premises; or in the performance or observance of any other
covenant, condition or term of this instrument, then Grantee, at its option, may
perform or observe the same, and all payments made for or costs incurred by
Grantee in connection therewith shall be secured hereby and shall be immediately
repaid by Grantor to Grantee with interest thereon at the lesser of the rate
stated in the Note or the maximum permitted by law. Grantee shall be the sole
judge of the necessity for any action, payment or performance by Grantee under
this section and of the legality, validity and priority of any such tax, lien,
assessment, charge, claim and premium, of the necessity for any such action and
of the amount necessary to be paid in satisfaction thereof. Grantee is hereby
empowered to enter and to authorize others to enter upon the Premises or any
part thereof for the purpose of performing or observing any such defaulted
covenant, condition or term, without thereby becoming liable to Grantor or any
person in possession holding under Grantor.
1.10 RECORDS AND REPORTS. Grantor shall maintain complete and accurate
books and records pertaining to the ownership, operation and leasing of the
Premises. Grantee shall have the right to inspect all books and records of
Grantor pertaining to the ownership, operation and leasing of the Premises, at
any time at the place of business of Grantor. Grantor shall, without expense to
Grantee, within thirty (30) days after the close of each calendar quarter and
within ninety (90) days after the close of the fiscal or operational year of the
Premises, furnish a balance sheet and a statement of the operations of the
Premises showing in reasonable detail: (i) gross revenues and other income of
the Premises; (ii) operating expenses such as taxes, assessments, insurance
premiums, repairs, maintenance, salaries and wages; (iii) net operating income;
and (iv) depreciation claimed for federal income tax purposes. Such financial
reports shall be certified to and sworn under oath to be correct by Grantor, if
an individual or by the chief executive officer, or chief financial officer or a
general partner in Grantor is a business entity. In the event of default
hereunder or on demand of Grantee, such reports will be audited and certified by
a certified public accountant as in accordance with generally accepted
accounting principles.
1.11 CONDEMNATION. If all or any part of the Premises shall be damaged
or taken through condemnation (which term shall include any damage or taking by
any governmental authority under the power of eminent domain or otherwise and
any transfer by private sale or conveyance in lieu thereof), either temporarily
or permanently, Grantee shall be entitled to all compensation, awards and other
payments or relief thereof, and Grantee is hereby authorized, at its option, to
commence, appear in and prosecute, in its own or Grantor's name, or compromise
any claim in connection therewith. All such compensation, awards, damages,
claims, rights of action and proceeds and the rights thereto are hereby conveyed
and assigned by Grantor to Grantee. Grantee may deduct from all condemnation
proceeds received by it, its expenses (including attorneys fees) related to the
condemnation and may release all or any part of the monies so received to
Grantor or for restoration of the Premises, or Grantee may apply the same in
such manner and amount as Grantee may determine to the reduction of the
indebtedness secured by this Deed. No such release or application of
condemnation proceeds shall affect the lien or title of this Deed. Grantor
agrees to execute such further assignment of any compensation, awards, damages,
claims, rights of action and proceeds as Grantee may require. The payment of any
condemnation proceeds to Grantee shall not excuse or delay the payment of any
installment of the indebtedness secured by this Deed.
1.12 SECURITY AGREEMENT. As to that portion of the Premises (if any)
which constitutes personal property, as opposed to real property or fixtures,
this Deed shall constitute a security agreement, and Grantee, as a secured
party, shall have all of the rights and remedies of a secured party under the
Uniform Commercial Code in addition to the rights and remedies provided in this
Deed or in any other instrument evidencing or securing the Note or by applicable
law. Without implying that other means of disposition would not be commercially
reasonable, the parties agree that it would be commercially reasonable to
foreclose the personal property (if any) encumbered by this Deed in the same
foreclosure sale at which the real estate conveyed by this Deed is foreclosed,
either with or without conducting a separate bid for the personal property.
Nevertheless, to the full extent permitted by law, all parts of the Premises
shall be deemed to be real property or fixtures and a part of the freehold, and
not personal property. The information provided in Exhibit "B" attached hereto
is provided in order that this Deed shall comply with the requirements of the
Uniform Commercial Code as a financing statement. Grantor warrants that the
information provided in Exhibit "B" regarding Grantor as debtor is true and
correct.
1.13 OBLIGATIONS VALID. Grantor covenants and warrants that the Note,
this Deed, and the other instruments securing the Note or relating to the loan
evidenced by the Note are valid, binding and enforceable in accordance with
their terms, and that the execution and delivery of said instruments and the
performance by Grantor of Grantor's obligations thereunder do not and will not
contravene any law or regulation, nor shall they violate or contravene the
provisions of any mortgage, deed of trust, deed to secure debt, joint venture or
partnership agreement, banking agreement, credit agreement nor any other
agreement, or any judgment, order or decree affecting Grantor or the Premises or
to which Grantor may be bound.
1.14 IDENTITY OF GRANTOR. The identity of Grantor and the continued
ownership of the Premises by Grantor is a material inducement to the making of
the loan secured by this instrument. Therefore, Grantor agrees not to convey the
Premises or any part thereof or interest therein, either voluntarily or by
operation of law, or to encumber the Premises or secure secondary financing on
the Premises, without the written consent of Grantee.
1.15 HAZARDOUS WASTE. Grantor warrants and represents to Grantee, to
the best of its knowledge after diligent inquiry and investigation, that the
Premises is not now and has never been used for the manufacture, storage,
handling, use or disposal of any hazardous, toxic, radioactive or dangerous
material or waste. Grantor covenants with Grantee that the Premises will not be
used for the manufacture, storage, handling, use or disposal of such materials,
nor will any such materials be brought on or kept about the Premises. Grantor
will indemnify and hold Grantee harmless from and against any such claim or loss
as a result of a breach of the foregoing representations and covenants,
including, but not limited to, costs of clean-up, removal, fines, damage awards,
attorneys' fees and court costs. This indemnity survives the repayment of the
Note and discharge of this instrument.
1.16 MONTHLY DEPOSITS. Upon an event of default hereunder and at
Grantee's option, to further secure the payment of taxes, assessments and
premiums for hazard insurance on the Premises, Grantor will deposit with
Grantee, on the due date of each monthly installment under the Note, a sum which
in the estimation of Grantee shall be equal to one-twelfth (1/12th) of the
annual taxes, assessments and hazard insurance premiums for the Premises; said
deposits to be held by Grantee free of interest and free of any liens or claims
on the part of creditors of Grantor and as a part of the security of Grantee.
Such sums shall be used by Grantee to pay current taxes, assessments and hazard
insurance premiums on the Premises as the same accrue and are payable, but said
sums shall not be deemed trust funds and may be commingled with the general
funds of Grantee. Grantee shall be under no obligation to pay such taxes,
assessments and hazard insurance premiums unless sufficient funds are available
from said deposits to pay same, and if said deposits are insufficient, Grantor
will deposit with Grantee an additional sum or sums as may be required in order
for Grantee to pay such taxes, assessments and hazard insurance premiums in full
when due. Upon any default under the provisions of this indenture or in the
Note, Grantee may, at its option, apply any money in the funds resulting from
said deposits to the payment of the indebtedness secured hereby in such manner
as it may elect.
ARTICLE II
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2.01 EVENT OF DEFAULT. The term "default" or "event of default,"
wherever used in this indenture, shall mean any one or more of the following
events:
(a) Should the indebtedness secured hereby, or any part thereof or
interest or charge thereon, not be paid when due.
(b) Should any other covenant, condition, or agreement of Grantor under
this indenture not be duly and promptly performed or observed, and such failure
is not cured within fifteen (15) days after notice of such default from Grantee.
(c) Any assignment by Grantor or any guarantor of the Note for the
benefit of creditors, or the appointment of a receiver, liquidator or trustee of
Grantor or for any of Grantor's or any guarantor's property, or the filing of
any voluntary petition for the bankruptcy, reorganization or arrangement of
Grantor or any guarantor pursuant to the Federal Bankruptcy Code or any similar
statute, or the adjudication of Grantor or any guarantor as a bankrupt or
insolvent, or if Grantor or any guarantor dies or is dissolved, terminated or
expires.
(d) An event of default occurs under and as defined in any of the
Additional Loan Documents or any and all other documents, instruments or
writings between the parties in connection with or related to the loan made by
Grantee to Grantor.
(e) Filing of any federal tax lien or claim of lien for labor and
material against Grantor or the Premises, if the same shall not be removed by
payment or bond within thirty (30) days from the date of record in the county
land records.
(f) If any claim of priority over this deed by title, lien (which lien
is not removed by bond) or otherwise be asserted in any legal or equitable
proceeding and the title insurer of Grantor's interest fails to promptly and
unconditionally acknowledge that it will indemnify and defend against same.
(g) If Grantor violates Section 1.14 above or conveys, transfers, or
encumbers the Premises or any part thereof or interest therein, either
voluntarily or by operation of law, without first obtaining the written consent
of Grantee.
The foregoing events of default shall occur without notice to or demand on
Grantor or any other person and without grace period or opportunity to cure,
except as is specifically set forth herein.
2.02 ACCELERATION OF MATURITY. If an event of default shall have
occurred, then the whole unpaid principal sum of the indebtedness secured hereby
with interest accrued thereon shall, at the option of Grantee, become due and
payable without notice or demand, time being of the essence of this indenture;
and no omission or delay on the part of Grantee to exercise such option when
entitled so to do shall be considered as a waiver of such right.
2.03 RIGHT OF GRANTEE TO ENTER AND TAKE POSSESSION.
(a) If an event of default shall have occurred and be continuing,
Grantor, upon demand of Grantee, shall forthwith surrender to Grantee the actual
possession of the Premises and if, and to the extent permitted by law, Grantee
may enter and take possession of the Premises and may exclude Grantor and
Grantor's agents and employees wholly therefrom.
(b) Upon every such entering and taking of possession, Grantee may
hold, store, use, operate, manage, control and maintain the Premises and conduct
the business thereof, and from time to time: (i) make all necessary and proper
repairs, renewals, replacements, additions and improvements thereto and thereon
and purchase or otherwise acquire additional fixtures, personalty and other
property; (ii) insure or keep the Premises insured; (iii) manage and operate the
Premises and exercise all the rights and powers of Grantor in its name; and (iv)
enter into any and all agreements with respect to the exercise by others of any
of the powers herein granted Grantee, all as Grantee may from time to time
determine to be to its best advantage; and Grantee may collect and receive all
of the income, rents, profits, issues and revenues of the Premises, including
the past due as well as those accruing thereafter and, after deducting (aa) all
expenses of taking, holding, managing and operating the Premises (including
compensation for the services of all persons employed for such purposes); (bb)
the cost of all such maintenance, repairs, renewals, replacements, additions,
improvements and acquisitions; (cc) the cost of insurance; (dd) such taxes,
assessments and other charges prior to the lien of this indenture as Grantee
shall determine to pay; (ee) other charges upon the Premises or any part thereof
as Grantee shall determine to pay; and (ff) the compensation and expenses of
attorneys and agents of Grantee as provided in this instrument; the remainder of
the money so received by Grantee shall apply first to the payment of accrued
interest, and then to the payment of principal on the Note or other indebtedness
secured hereby.
(c) For the purpose of carrying out the provisions of this Paragraph
2.03, Grantor hereby constitutes and appoints Grantee the true and lawful
attorney-in-fact of Grantor 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.
(d) Whenever all such events of default have been cured and satisfied,
Grantee shall surrender possession of the Premises to Grantor, provided that the
right of Grantee to take possession from time to time pursuant to Paragraph 2.03
shall exist if any subsequent event of default shall occur and be continuing.
2.04 APPOINTMENT OF A RECEIVER.
(a) If an event of default shall have occurred and be continuing,
Grantee, upon application to a court of competent jurisdiction, shall be
entitled, without notice and without regard to the adequacy of any security for
the indebtedness hereby secured or the solvency of any party or guarantor bound
for its payment, to the appointment of a receiver to take possession of and to
operate the Premises and to collect the rents, profits, issues, and revenues
thereof, and apply the same to payment of the debt secured by this Mortgage or
as the court may direct. The receiver shall have all rights and powers permitted
by law and as are conferred by the court making such appointment.
(b) Grantor will pay to Grantee upon demand all expenses, including
receivers' fees, reasonable attorney's fees, costs and agents' compensation,
incurred pursuant to the provisions contained within this Paragraph 2.04, and
all such expenses shall be secured by this indenture. Grantee may loan funds to
a receiver for use in connection with the receiver's duties or the Premises on
terms satisfactory to Grantee and the receiver, and any notes or receiver's
certificate evidencing such loans shall be secured by this Deed.
2.05 ENFORCEMENT.
(a) If an event of default shall have occurred, Grantee, at its option,
may sell the Premises or any part of the Premises at one or more public sale or
sales before the door of the courthouse of the county in which the Premises or
any part of the Premises is situated, to the highest bidder for cash, in order
to pay the Indebtedness, and all expenses of sale and of all proceedings in
connection therewith, including attorneys' fees in the amount of fifteen percent
(15%) of the principal and interest owed to Grantee, after advertising the time,
place and terms of sale once a week for four (4) weeks immediately preceding
such sale (but without regard to the number of days) in a newspaper in which
Sheriff's sales are advertised in said county. At any such public sale, Grantee
may execute and deliver to the purchaser a conveyance of the Premises or any
part of the Premises in fee simple with full warranties of title, and to this
end Grantor hereby constitutes and appoints Grantee the agent and
attorney-in-fact of Grantor to make such sale and conveyance, and thereby to
divest Grantor of all right, title and equity that Grantor may have in and to
the Premises and to vest the same in the purchaser or purchasers at such sale or
sales, and all the acts and doings of said agent and attorney-in-fact are hereby
ratified and confirmed and any recitals in said conveyance or conveyances as to
facts essential to a valid sale shall be binding upon Grantor. The aforesaid
power of sale and agency hereby granted are coupled with an interest and are
irrevocable by death or otherwise, are granted as cumulative of the other
remedies provided hereby or by law for collection of the indebtedness secured
hereby and shall not be exhausted by one exercise thereof but may be exercised
until full payment of all of the indebtedness secured hereby. In the event of
any sale under this Deed by virtue of the exercise of the powers herein granted,
or pursuant to any order in any judicial proceeding or otherwise, the Premises
may be sold as an entirety or in separate parcels and in such manner or order as
Grantee in its sole discretion may elect, and if Grantee so elects, Grantee may
sell the personal property covered by this Deed at one or more separate sales in
any manner permitted by the Uniform Commercial Code of the State of Georgia, and
one or more exercises of the powers herein granted shall not extinguish nor
exhaust such powers, until the entire Premises are sold or the indebtedness
secured hereby is paid in full. If the indebtedness secured hereby is now or
hereafter further secured by any chattel mortgages, pledges, contracts of
guaranty, assignments of lease or other security instruments, Grantee may at its
option exhaust the remedies granted under any of said security instruments
either concurrently or independently, and in such order as Grantee may
determine. Grantee may, in addition to and not in abrogation of the rights
covered under this paragraph 2.05, either with or without entry or taking
possession as herein provided or otherwise, proceed by a suit or suits in law or
in equity or by any other appropriate proceeding or remedy (i) to enforce
payment of the Note or the performance of any term, covenant, condition or
agreement of this Deed or any other right or (ii) to pursue any other remedy
available to it, all as Grantee at its sole discretion shall elect.
2.06 AUTHORITY TO CONVEY. At and after any such public sale, Grantee
may execute and deliver to the purchaser a conveyance of the Premises or any
part of the Premises with full warranties of title, and to this end, Grantor
hereby constitutes and appoints Grantee the agent and attorney-in-fact of
Grantor to make such sale and conveyance pursuant to Paragraph 2.05 through 2.07
hereof, and thereby to divest Grantor of all right, title or equity that Grantor
may have in and to the Premises and to vest the same in the purchaser or
purchasers at such sale or sales, and all of the acts and doings of said agent
and attorney-in-fact are hereby ratified and confirmed, and any recitals in said
conveyance or conveyances as to facts essential to a valid sale shall be binding
on Grantor. The aforesaid power of sale and agency hereby granted are coupled
with an interest and are irrevocable by death or otherwise, are granted as
cumulative of the other remedies provided by law for collection of the
indebtedness secured hereby, and shall not be exhausted by any one exercise
thereof but may be exercised until full payment of all such sums secured hereby.
2.07 APPLICATION OF THE PROCEEDS OF SALE. Upon any such public sale
pursuant to the aforementioned power of sale and agency, the proceeds of such
sale shall be applied first to the expenses of such sale and all proceedings in
connection therewith (including attorneys' fees in the amount of 15% of the
principal and interest due under the Note if the foreclosure is referred to or
handled by an attorney-at-law), then to payment of the indebtedness secured
hereby and all accrued interest thereon, then to insurance premiums, liens,
assessments, taxes and charges, including utility charges, with accrued interest
thereon, and the remainder, if any, shall be paid to Grantor or other person
entitled thereto.
2.08 LEASES. Grantee may, at its option, foreclose this Deed subject to
the rights of any tenant of the Premises or may agree not to disturb the rights
of any tenant, and such event shall not be asserted as a defense to any
foreclosure or deficiency judgment. No foreclosure hereunder shall terminate any
lease of any tenant of the Premises whose rights are subordinated to this Deed
unless Grantee or the purchaser at foreclosure sale shall, at its option and in
its sole discretion, elect to terminate any one or more leases or tenant rights,
and shall notify the tenant that its rights are terminated.
2.09 GRANTOR AS TENANT HOLDING OVER. In the event of any public sale
pursuant to the aforesaid power of sale and agency, or any other foreclosure
sale of the Premises, Grantor 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.
2.10 GRANTEE'S RIGHT TO PURCHASE. In the event of any sale pursuant to
the aforesaid power of sale and agency or any other foreclosure sale of the
Premises, Grantee shall be entitled to bid at said sale and, if successful, to
purchase and acquire the Premises or any part thereof or interest therein. In
such event Grantee may, in lieu of paying in cash therefor, make settlement for
the purchase price by crediting against the indebtedness secured by this Deed,
the net sales price, after deducting the expenses of sale and other sums which
Grantee is authorized to deduct under Paragraph 2.07, above.
2.11 DISCONTINUANCE OF PROCEEDINGS AND RESTORATION OF THE PARTIES. In
case Grantee shall have proceeded to enforce any right or remedy under this
indenture by receiver, entry or otherwise, and such proceedings shall have been
discontinued or abandoned for any reason or shall have been determined adversely
to Grantee, then, and in every such case, Grantor and Grantee shall be restored
to their former positions and rights hereunder, and all rights, powers and
remedies of Grantee shall continue as if no such proceeding has been taken.
2.12 REMEDIES CUMULATIVE. No right, power or remedy conferred upon or
reserved to Grantee by this indenture or the Note, the Assignment of Rents and
Leases, Loan Agreement or any other document relating to or securing the loan is
intended to be exclusive of any other right, power or remedy, but each and every
such right, power and remedy shall be cumulative and concurrent and shall be in
addition to any other right, power and remedy given hereunder or now or
hereafter existing at law or in equity or by statute. No act of Grantee shall be
construed as a waiver or as an election to proceed under any provision herein or
the other documents evidencing the loan or securing same to the exclusion of any
other provisions, and Grantee shall have the right to exercise any and all
rights and remedies severally or concurrently as Grantee shall see fit. No
release or subordination by Grantee of any part of the Premises, nor of any
collateral or obligation securing the Note shall release or impair Grantee's
rights as to property not released in writing.
2.13 WAIVER. GRANTOR ACKNOWLEDGES THE RIGHTS GIVEN HEREIN TO GRANTEE TO
ACCELERATE THE DEBT SECURED HEREBY AND TO SELL THE PREMISES AT PUBLIC AUCTION
PURSUANT TO THE POWER OF ATTORNEY GRANTED HEREIN. GRANTOR WAIVES ANY RIGHTS TO
NOTICE AND HEARING PRIOR TO SUCH SALE UNDER POWER, OTHER THAN AS EXPRESSLY
PROVIDED IN THIS DEED. GRANTOR WAIVES ALL RIGHT OR EQUITY OF REDEMPTION IN THE
PREMISES AFTER A FORECLOSURE SALE.
ARTICLE III
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3.01 SUCCESSORS AND ASSIGNS INCLUDED IN PARTIES. The words "Grantor"
and "Grantee", whenever used herein, shall include the respective heirs,
executors, administrators, legal representatives, successors, and assigns of the
parties hereto, and all those holding under either of them and the
successors-in-title to Grantor. The pronouns used herein shall include, when
appropriate, either masculine, feminine or neuter gender and both singular and
plural number.
3.02 HEADINGS. The headings of the sections, paragraphs and
subdivisions of this indenture are for convenience of reference only, are not to
be considered a part hereof and shall not limit or otherwise affect any of the
terms hereof.
3.03 INVALID PROVISIONS TO AFFECT NO OTHERS. If fulfillment of any
provisions hereof or any transaction related hereto or to the Note, at the time
performance of such provisions shall be due, shall involve transcending the
limit of validity prescribed by law, the obligation to be fulfilled shall
automatically be reduced to the limit of such validity; and if any clause or
provisions herein contained operates or would operate to invalidate this
indenture in whole or in part, then such clause or provision only shall be held
for naught, as though not herein contained, and the remainder of this indenture
shall remain operative and in full force and effect.
3.04 DEPARTURE FROM TERMS. Any indulgence or departure at any time by
the Grantee from any of the provisions hereof or of any obligation hereby
secured, or failure to exercise rights and remedies, shall not modify the same
or relate to the future, or waive future compliance therewith by Grantor.
3.05 INTEREST. Any sums which may be due to Grantee hereunder before
default shall bear interest at the pre-default rate specified in the Note and
after default, at Grantee's option, shall bear interest at the default rate
specified in the Note or the highest rate permitted by applicable law, whichever
is less.
3.06 NOTICES. Any notice or demand from Grantee to Grantor under this
Deed or the Note shall be deemed delivered if such notice or demand is in
writing and is deposited in the United States mail addressed to Grantor at the
address in the caption of this instrument (or such other address as Grantor
shall have notified Grantee in writing) or by delivery of such notice or demand
to said address. Notice shall be deemed received on the date delivered to
Grantor's address or the next day after same is mailed by certified or
registered mail.
3.07 WAIVER OF HOMESTEAD. Grantor hereby waives and renounces all
homestead and exemption rights provided for by the Constitution and laws of the
United States and any state thereof as against the collection of the
indebtedness secured hereby and any part thereof. Grantor covenants and warrants
that the Premises is not the homestead of Grantor.
3.08 TIME OF ESSENCE. Time is of the essence with respect to each and
every covenant, agreement and obligation of Grantor under this Security Deed,
the Note and any other instrument now or hereafter evidencing, securing or
otherwise relating to the indebtedness secured hereby.
{Signatures appear on following page}
IN WITNESS WHEREOF, Grantor has signed and sealed this instrument as of
the day and year first above written.
GRANTOR:
VININGS INVESTMENT PROPERTIES, L.P.,
a Delaware limited partnership
By: Vinings Investment Properties Trust,
a Massachusetts business trust,
as general partner
Signed, sealed and delivered in
the presence of:
/s/ Christine Stomper By: /s/ Peter D. Anzo (SEAL)
- --------------------- --------------------------------
Unofficial Witness Peter D. Anzo, Chief Executive Officer
of Vinings Investment Properties Trust,
on behalf of all Trustees
/s/ Clifford A. Barshay
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Notary Public
(NOTARIAL SEAL)
My Commission Expires:
March 22, 2003