HomeMy WebLinkAboutLoan East Augusta Community Development Corporation For Lincoln Square Apartment Project
Augusta Richmond GA
DOCUMENT NAME: LDCAI'\, ~CA~f A u~~--6:A Com\'Y'v.n. ~*'1 '0e..ve\ormel\{,
Co~~o<o.t~ Or ..Qo(''-~\ncc>\\'""''I 3~Qy'e A~o...eth'\e(\t;-
\>\o'.J ~c--i:.-
DOCUMENT TYPE: Dce..d
YEAR:()2
BOX NUMBER: I Lf
FILE NUMBER: 1:581, q
NUMBER OF PAGES: '38
F r
~
I
AUGUSTA-RICHMOND COUNTY COMMISSION
J
.JAMES B. WALL
CITY ArrORNEY
LEE BEARD
TOMMY BOYLES
ULMER BRIDGES
ANDY CHEEK
BOBBY G. HANKERSON
WILLIAM n. KUHLKE, JR,
WM, "WILLIE" H. MAYS, 1/1
STEPHEN E. SHEPARD
MARION WILLIAMS
BOB YOtlNG
Mayor
P,O, Box2125
454 GREENE STREET
AUGUSTA, GA 30903
Bus, (706) 821-2488
FAX No: (706) 722-5984
E-MAIL: IWALL@CO.RICHMOND.GA.US
GEORGE R. KOLB
Administrator
IUCHARD L. COLCLOUGH
Mayor I~ro Tem
January 8, 2002
Lena Bonner
Clerk of Commission
Municipal Bldg (11)
530 Greene Street
Augusta, GA 30911
Re: Loan East Augusta Community Development Corporation for Lincoln
Square Apartment Project.
Dear Lena:
I am enclosing herewith for permanent keeping the original recorded Deed to
Secure Debt, Security Agreement and Assignment of Leases and Rents together with
the original recorded assignment of the deed to secure debt, all incident to the $500,000
CDGB loan from the Housing and Neighborhood Development Department on the
Lincoln Square Apartment renovation project. By copy of this letter, I am furnishing
Norman Michael copies of these original documents for his file. Should either of you
have questions regarding these loan documents please contact me.
With kind regards,
HDR:tc
Enclosures
cc: Mr. Norman Michael (w/enclosures)
'.-
.
.
.
."}
,
i
"
i'
/ -
_f
'I
~
After Recording Return To:
Carolyn A. Rowland,Esq.
Arnall Golden & Gregory, LLP
120 1 West PeachtTee Street, Suite 2800
Atlanta, Georgia 30309-3450
Book 007431036 Aug.usta - Richmond County
200102453508/1312001 11:22:16,00
$5,OO.ASSIGNMENT
11111111/11I1111I11111111111111111111111111111111I1111111111
2001024535 Augusta - Richmond County
ASSIGNMENT OF DEED TO SECURE DEBT
\,
FOR VALUE RECEIVED EAST AUGUSTA. COMMUNITY DEVELOPMENT
CORPORATION, a Georgia non-profit corporation ("Assignor") hereby gTants, transfers and
assigns to AUGUSTA, GEORGIA, a political subdivision of the State of Georgia ("Assignee").
its successors and assigns, all of the right, title and interest of Assignor in and to that certain
Deed to Secure Debt, Security Agreement and Assignment of Leases and Rents dated as of may
q, 2001 (the "Security Deed") fr0111 G-Hope, L.P., '!..Q~p',rp.l~ limited partnership to Assignor, as
recorded in Deed Book ~, Page \ 100 , on ~ 2001 in the office of the Clerk of
the Superior Court of Richmond County, Georgia, and covering the real property described in
Exhibit A attached hereto ,..
_,q,,'.C'.r: "''J
IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment to.be ~o":,c
executed as of the day and year first above written.
Signed, sealed and delivered in the
presence of:
ASSIGNOR:
;
;
, ';"'\::~~:;'~'"~};:i"""
'. " 0..-\, r. .' ,!-,',
, .: ~";. '.i' ~fJ.~~""'..o~';' '.
~'c~.~ ~ J ~ .......,' '~"'k)t"t 0:'" ",
., .;;{i~~:~~:{~tr" ,
- :.~\!,:.. J ',:(~'.~;:'c:
',.:....~....o~..:~.'i. .J'I);~~. .~~
. .O'(tNt.O~. .~
. "',J": ....~~
" . . " . ~"f ,....
. '~.jrl'.'
4........
[Signatures continued on next page]
13003671'113577701'1
-1-
:.,
.
{ i
T
;
--.
Book 007431937 Augusta - Richmond County
I
2001024535 08/13/2001 11 :22:16.00
ASSIGNEE:
AUGUSTA, GEORGIA
, """-c,,';;,"~., _
, "'. 1\T'. ) I'~\'" .i:"I.i:'>,.'. '.
,j ..."~')l~'''~''t~ .\ ru.trl:C'~~!.: .
':~::7~f;..,:..t~,., .. h~'" .:~ Richmond County, Geo7ri
.:: 0;1; --\ tfiT~>,i,"'j ~,QQmmlsslon Expires Jan. 4, 2
}trl:th~~~):V':- .I~~?1~fl>IOTARY SEAL]
: '1:n~p~jl~~ ~\;~t~m:;':', .
":: MY?S9J7t}~~'~$.!Hon 'expIres:
."'t. ..I1~-htl;~J,~f,(?.!).....;"" ~
/'.._,'., ,.t'lf;l~"',~.~'" ,.:. . -+.
~. . -.'1,', ,..", . .
. "f)';, i~' 'I; ;:~ \.' ' C '
.
.
l'
Signed, sealed and delivered in the
presence of:
'nf7~17' t1L Y77~
Wi less
\300367vI1357770vl
By:_
Name:
Title:
-2-
05/05/01 15: 12 rFAX 73;37556 _____u _.__ HUGG_tNS & ALLEN
--.---_..~._~-----_. --
:~
.
@005/005
.,
f;.?HIt3 J r It
~~
i'
Fidelity National Title
.INSURANCE COMPAN'0--
Book 00743.1938 Augusta - Richmond County
2001024535 08/13/2001 11 :22:16.00
'''',
File No.: R01-0253
.
.
SCHEDULE C
(Descriptions)
ALL that certain piece, parcel of land, with Improvements thereon, situate, lying and being
In the State of Georgia, County of Richmond, former City of Augusta, on East Boundary
Street In the 85th G.M.D. and designated as Tax Map No. 48.3, Parcel 79, also known as
6.75 acres parcel of land on a plat prepared for Greene Street Town Homes and recorded
on Reel 576, page 928, and being more particularly described as follows:
PoInt of commencement (P.O.C.), commencing at a nail and cap at the point of Intersection
(P.I.) of East Boundary Street and Telfair Street. Thence on a bearing of N 66006'50" E for a
distance of 76.24' to a #4 RBF known as point of beginning (P.O.B.). Thence in a clockwise
dlrecJIQIl ~Iong East Boundary Street, on a bearing of N 24059'14" E for a distance of
166.55 feet to aO~i4rebar' set. -Therice along-th'e-propeft'Flifle c:WLuth-erMcDanlel-on-a
bearing of S 63047'05" E for B distance of 100.00 feet to a #4 rebar fd. Thence continuing
along the property line of Ernest Smith Jr., Tract "c" on a bearing of S 67035'16" E for a
distance of 171.85 feet to a #3 rebar fd. Thence along the property line of Ernest Smith
o
Jr., Tract "c" on a bearing of N 2743'53" E for a distance of 171.73 feet to a 3/4" pinched
top iron pipe fd. thence along the property line of Ernest SmIth Jr., Tract "c" on a bearing
of S 62016'07"E for a distance of 10.00 feet to a #4 rebar set. Thence along the property
line of Ernest Smith Jr., Tract "c" on a bearing of 27040'37" E for a distance of 75.32 feet to
a #4 rebar set. Thence along the property line of Ernest Smith Jr., Tract "c" on a bearing
of N 63020'30" W for a distance of 10.00 feet toa 1/2" pInched top Iron pipe fd. Thence
along the property line of Ernest Smith Jr., Tract "A" on a bearing of N 27039'53" E for a
distance of 185.82 feet to a #5 rebar fd. Thence along the property line of Jim Usry on a
bearing of S 49056'46" E for a distance of 168.55 feet to a Inasslble corner. Thence along
the property line of Mary Lawson and of Pamela Ham on a bearing of S 49056'00" E for a
distance of 308.67 feet to a #4 rebar set. Thence along the property line of Pamela E. Ham
on a bearing of S 27037'50" W for a distance of 472.64 feet to a #6 open end Iron pipe fd.
Thence along the property line of River Glenn Associates on a bearing of N 65038'44" W for
a distance of 731.13 feet to the point of beginnIng (P.O.B.). '
~
Filed in this office
Augusta - Richmond County
11,r)"'1 h nn
nRjj3!2GQj--,-,-".,,:-'---- -
-Elaine C Johnson
~
I
"
FORM U-836 C (5/95)
ALTA COMMITMENT .1966
.
.
f 'I
..
Book 00'140 11 00 ~ugustaj- Richmond County
200102210807/24/2001 14:3629.00
$1572 00 SECURITY DEED
- \\11\\1 1IIIIIlIII 1111\ 1\11\ 11\\1 \\111 \\111 1\1111111\ 11\1111\
2001022108 Augusta - Richmond County
Intangible Tax $1500,00
..
.
,
~1fj-1 ~- ~- i!{( ~ - - - _____________n___n_____n______________________nnn______________________________n___
After recording ret to
Carolyn A. Ro and, Esq,
Arnall Gal Gregory LLP
1201 W t Peachtree Street
280 ne Atlantic Center
anta, Georgia 30309
DEED TO SECURE DEBT, SECURITY AGREEMENT
AND ASSIGNMENT OF LEASES AND RENTS
Dated as of May 9, 2001
between
G-1-I0PE, LP" a Georgia limited partnership
("Grantor")
and
EAST AUGUSTA COMMUNITY DEVELOPMENT CORPORATION
A Georgia non-profit corporation
("Grantee")
LOCA nON OF SECURED PROPERTY
420 East Boundary, Augusta, Richmond County, Georgia
THIS INSTRUMENT CONSTITUTES A "CONSTRUCTION MORTGAGE" AS
THAT TERM[S DEFINED AND DESCRIBED IN SECTION 9-313(1)(C) OF THE
GEORGIA UNIFORM COMMERCIAL CODE AND SECURES AN OBLIGATION
INCURRED FOR THE CONSTRUCTION AND IMPROVEMENT ON LAND INCLUDING
THE ACQUISITION COST OF THE LAND.
I J57769v I
r
----,-
~ .--.....
Book 00740:1101 Augusta ~ Richmond COLlnty
2001022108 07/24/2001 14:36:29.00
,.
I
.
DEED TO SECURE DEBT, SECURITY AGREEMENT
AND ASSIGNMENT OF LEASES AND RENTS
THIS DEED TO SECURE DEBT, SECURITY AGREEMENT AND ASSIGNMENT OF
LEASES AND RENTS (this "Deed to Secure Debt") is entered into as of May 9, 2001, by G-
HOPE, L.P" a Georgia limited partnership (the "Grantor"), in favor of EAST AUGUSTA
COMMUNITY DEVELOPMENT CORPORATION, a Georgia non-profit corporation, in its
capacity as the lender (the "Grantee"), under that certain Promissory Note dated May 9, 2001, from
G-Hope, L.P. in the principal sum of Five Hundred Thousand & 00/1 00 ($500,000,00) Dollars (the
"Loan").
W!I N ~~~~I H:
WHEREAS, Grantee has agreed to provide a loan to Grantor in the amount of Five Hundred
Thousand & 00/1 00 ($500,000.00) Dollars (the "Loan") in connection with Grantee's receipt of a
loan from the Housing and Neighborhood Development Department of Augusta, Georgia of
community development block grant funds. Said Loan will provide a portion of the financing the
rehabilitation of a 148-unit multi-family housing development located at 420 East Boundary in
Augusta, Richmond County, Georgia; and
.
WHEREAS, said Loan is evidenced by that certain Promissory Note dated May 9, 200 I, in
the principal sum of Five Hundred Thousand & 001l 00 ($500,000,00) Dollars, with Grantee as
Lender and Grantor as Borrower; and
WHEREAS, Grantee is willing to make the Loan, but only upon the condition, among other
things, that Grantor shall have executed and delivered this Deed to Secure Debt in favor of Grantee.
NOW, THEREFORE, for and in consideration of the premises, the sum of Ten & 00/100
($10.00) Dollars, the mutual agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged to secure any
obligations under the Note, Grantor hereby grants, bargains, sells, and conveys, to Grantee the
following described real and other property and all substitutions for and all replacements,
reversions, and remainders of such property, whether now owned or held or hereafter acquired by
Grantor (collectively, the "Secured Property"):
1.
all of Grantor's right, title and interest in and to all those plots, pieces or parcels of
land more particularly described in Exhibit A annexed hereto and made a part hereof,
together with the right, title and interest of Grantor, if any, in and to the streets and in
and to land lying in the bed of any streets, roads or avenues, open or proposed, public
or private, in front of, adjoining or abutting said land to the center line thereof, the air
space and development rights pertaining to said land and the right to use such air
space and development rights, all rights of way, privileges, liberties, tenements,
hereditaments and appurtenances belonging to, or in any way appertaining to, said
land, all easements now or hereafter benefiting said land and all royalties and rights
.
1357769vl
.
.
.
r
i' /'
----.
!"
Book 00740:1102 Augusta - Richmond County
2001022108 07/24/2001 14:36:29.00
appertai~ing to the use and enjoyment of said land, including, but without limiting
the generality of the foregoing, all alley, vault, drainage, mineral, water, oil, coal,
gas, timber and other similar rights (collectively the "Land");
2,
all of Grantor's right, title and interest in and to all of the buildings and other
improvements now or hereafter erected on the Land (the buildings and other
improvements being hereinafter collectively referred to as the "Buildings," and the
Land together with the Buildings and the Fixtures (hereinafter defined), being
hereinafter collectively referred to as the "Real Estate");
3.
all and singular the reversion or reversions, remainder or remainders, rents, issues,
profits and revenues of the Real Estate and all of the estate, right, title, interest, prop-
erty, possession, claim and demand whatsoever, both in law and at equity, of Grantor
of, in and to the Real Estate and of, in and to every part and parcel thereof, with the
appurtenances, at any time belonging or in any way appertaining thereto;
4.
all of Grantor's right, title and interest in and to all of the fixtures, systems,
machinery, apparatus, equipment and fittings of every kind and nature whatsoever
and all appurtenances and additions thereto and substitutions or replacements thereof
now owned or hereafter acquired by Grantor and now or hereafter attached or affixed
to, or constituting a part of, the Real Estate or any portion thereof (collectively the
"Fixtures"), including, but without limiting the generality of the foregoing, all
heating, electrical. mechanical, lighting, lifting, plumbing, ventilating, air
conditioning and air-cooling fixtures, systems, machinery, apparatus and equipment,
refrigerating, incinerating and po\ver fixtures, systems, machinery, apparatus and
equipment, loading and unloading fixtures, systems, machinery, apparatus and
equipment, escalators, elevators, boilers, communication systems, switchboards,
sprinkler systems and other fire prevention and extinguishing fixtures, systems,
machinery, apparatus and equipment, and all engines, motors, dynamos, machinery,
wiring, pipes, pumps, tanks, conduits and ducts constituting a part of any of the
foregoing, including all interest of Grantor in any such items now or hereafter at any
time acquired under lease, conditional sale contract, chattel mortgage or other title-
retaining or security instrument, all of which property mentioned in this paragraph,
whether or not subject to any other security interest, shall be deemed part of the Land
and not severable wholly or in part without material injury to the Land, it being
understood and agreed that all of the Fixtures are appropriated to the use of the Real
Estate and, for the purposes of this Deed to Secure Debt, shall be deemed
conclusively to be Real Estate and secured hereby;
5. all of Grantor's right, title and interest in and to all use permits, rights under
tentative, preliminary or final maps, subdivision applications and all other zoning,
regulatory and use approvals and peJl11its, including extension, renewal and
modi fication rights relating to the use, development or sale of any of the Real Estate;
6.
all of Grantor's right, title and interest in and to all plans, speci fications, contracts
and agreements for construction of any improvements on the Land; Grantor's rights
under any payment, performance, or other bond in connection with construction
-2-
U57769v I
.
.
."
i'
l'
--- -_. -
--~
Book 007401103 Augusta - Richmond County
2001022108 07/24/2001 14:36:29.00
/
"
ll1aterial~, supplies, and equipment located on or about, delivered to and intended to
be installed or placed on or about the Land, or used or to be used in connection with
the construction of improvements on the Land or the operation, development or sale
of the Land or any pari thereof; offers, bids, contracts, agreements, or purchase
orders executed by or eiltered into with contractors, subcontractors, suppliers, or
materialmen incidental to construction of improvements on the Land;
7,
all rights of Grantor as seller under any agreement, contract, understanding or
arrangement pursuant to which Grantor has obtained the agreement of any person to
purchase any of the Real Estate or any interest therein (herein collectively called
"Contracts for Sale"), and all income, profits, benefits, avails, advantages and claims
against guarantors under any thereof;
o
all of Grantor's right, title and interest in and to all permits, applications, licenses and
contracts to improve, use, develop, subdivide, sell, study, surveyor appraise any of
the Land and all contracts, plans and specifications, including all amendments,
modi fications, supplements, general conditions and addenda thereof or thereto,
prepared by or under the supervision of any architect, engineer, surveyor or appraiser
for the account of Grantor in connection with the use or development of, or
construction of improvements on or to, any of the Land;
8,
9.
all of Grantor's right, title and interest in and to all books and records pertaining to
any of the Secured Property, including, without limitation, all computer hardware
and software and all equipment and tangible personal property in which such books
and records are kept;
lO. all of Grantor's right, title and interest in, to and under all drainage, water, oil, gas
and sewer pipes, conduits and wires, and other facilities fumishing utility or other
services and other similar rights now or hereafter benefiting the Real Estate or any
portion thereof or appertaining thereto;
1 I, all of Grantor's right, title and interest in, to and under all leases, subleases,
underlettings, concession agreements, licenses and other occupancy agreements
which now or hereafter may affect the Real Estate or any portion thereof and under
any and all guarantees, modi fications, renewals and extensions thereof (collectively
the '''Leases''), and in and to any and all deposits made or hereafter made as security
under the Leases, subject to the prior legal rights under the Leases of the lessees
making such deposits, together with any and all of the benefits, revenues, income,
rents, issues and profits due or to become due or to which Grantor is now or hereafter
may become entitled arising out of the Leases or the Real Estate or any portion
thereof (collectively the "Rents");
12.
all (a) uneamed premiums accrued, accruing or to accrue under any insurance
policies now or hereafter obtained by Grantor and Grantor's interest in and to all
proceeds which now or hereafter may be paid in connection with the conversion of
the Secured Property or any portion thereof into cash or liquidated claims, together
with the interest payable thereon and the right to collect and receive the same,
-3-
1357769v I
I'
.,
Book 007401104 Augusta - Richmond County
2001022108 07/24/2001 14:36:29.00
.
..
ihcluding, but without limiting the generality of the foregoing, proceeds of casualty
insurance, title insurance and any other insurance now or hereafter maintained by
Grantor with respect to the Real Estate or in connection with the use or operation
thereof (collectively the "Insurance Proceeds"), and (b) awards, payments and/or
other compensation, together with the interest payable thereon and the right to collect
and receive the same, which now or hereafter may be made with respect to the
Secured Property as a result of (i) a taking by eminent domain, condemnation or
otherwise, (ii) the change of grade of any street, road or avenue or the widening of
any streets, roads or avenues adjoining or abutting the Land, or (iii) any other injury
to, or decrease in the value of, the Secured Property or any portion thereof
(collectively the "Awards"), in any of the foregoing circumstances described in
clauses (a) or (b) above to the extent of the entire amount of the Indebtedness
outstanding as of the date of Grantee's receipt of any such Insurance Proceeds or
Awards, notwithstanding that the entire amount of the Indebtedness may not then be
due and payable, and also to the extent of attorneys' fees, costs and disbursements
incurred by Grantee in connection with the collection of any such Insurance
Proceeds or A wards. Grantor hereby assigns to Grantee, and Grantee is hereby
authorized to collect and receive, all Insurance Proceeds and A wards to the extent of
(x) the entire amount of the Indebtedness then outstanding and (y) attorneys' fees,
costs and disbursements incuned by Grantee in connection with the collection
thereof, and is further authorized to give proper receipts and acquittances therefor
and to apply the same toward the Indebtedness as herein set forth notwithstanding
that the entire amount of the Indebtedness may not then be due and payable, Grantor
hereby agrees to make, execute and deliver, from time to time, upon demand, such
further documents, instruments or assurances as may be requested by Grantee to
confirnl the assignment of such Insurance Proceeds and Awards to Grantee, free and
clear of any interest of Grantor whatsoever therein and free and clear of any other
liens, claims or encumbrances of any kind or nature whatsoever;
.
13.
all right, title and interest of Grantor in and to all extensions, improvements,
betterments, renewals, substitutes and replacements of, and all additions and
appUlienances to, the Real Estate, and in each such case, the foregoing shall be
deemed a part of the Real Estate and shall become subject to the security title,
security interest and lien of this Deed to Secure Debt as fully and completely, and
with the same priority and effect, as though now owned by Grantor and specifically
described herein, without any further grant, conveyance, assignment or other act by
Grantor; and
14.
all of Grantor's rights to further encumber the Secured Property for debt.
TO HAVE AND TO HOLD the Secured Propeliy and all parts, rights, members and
appurtenances thereof, for the purposes set forth herein, subject to the terms, conditions and
provisions hereof, to the use, benefit and behoof of Grantee, its successors and assigns TN FEE
SlMPLE forever.
.' Should the Loan, including all future advances, secured by this Deed to Secure Debt be paid
and satisfied according to the tenor and effect thereof when the same shall become due and payable,
-4-
1357769,-1
.
'i
..
Book 007401105 Augusta - Richmond County
2001022108 07/24/2001 14:36:29.00
.
and should Grantor perf0n11 all covenants contained herein in a timely manner, then this Deed to
Secure Debt and the security interest effected hereby shall become null and void and shall be
released in due form by Grantee, at Grantor;s expense; otherwise this Deed to Secure Debt shall
continue in full force and effect.
THIS CONVEYANCE is intended to operate and is to be construed as a deed passing title to
the Secured Property to Grantee and is made under those provisions of the existing laws of the State
of Georgia relating to deeds to secure debt, and not as a mortgage, and is given to secure the
Indebtedness and the Secured Obligations.
Grantor, for itsel f and its successors and assigns, further represents, warrants, covenants and
agrees with Grantee as follows:
.
1. Warranty of Title. Grantor warrants that it has good and insurable fee simple
absolute title to the Real Estate and Fixtures and has the full power and lawful authority to convey
security title, grant a security interest, and encumber the same in accordance with the provisions set
forth in this Deed to Secure Debt and that this Deed to Secure Debt grants a valid and enforceable
first lien on and security interest in the Secured Property, subject only to the exceptions to title
particularly described on Exhibit ~ annexed hereto and made a part hereof (the "Pen11itted
Encumbrances"). Grantor shall (a) preserve such title and the validity and priority of the lien and
security interest of this Deed to Secure Debt and shall forever warrant and defend the same unto
Grantee against the claims of all and every person or persons, corporation or corporations and
parties whomsoever, and (b) make, execute, acknowledge and deliver all such further or other
deeds, documents, instruments or assurances and cause to be done all such further acts and things as
may at any time hereafter be required by Grantee to confinn and fully protect the lien, security
interest and priority of this Deed to Secure Debt.
2, Exculpation. Except for the Secured Property herein referenced and secured by the
Deed to Secure Debt, no other property or assets of Borrower or any general or limited partner of
Borrower shall be subject to levy, execution, or other enforcement procedures for the satisfaction of
such a debt or judgment. Nothing in this section, however, shall: I) release, impair, or otherwise
affect the validity or enforceability of any of the loan documents or the perfection or priority of this
note and Grantee's interest and title in the Property for the loan; 2) constitute a waiver of any
obligatio~l evidenced or secured by any loan document or in any way be construed to release or
impair the title or security interests created by any other loan document; 3) limit the rights or
remedies of Grantee under any of the loan documents, including the right to foreclose, either
judicially or nonjudicially, Grantor's interest in the Property or to confirm any foreclosure or sale
pursuant to the power of the sale in the security instruments or to bring actions against Grantor, so
long as the exercise of any remedy does not extend to execution against any Secured Property of
Grantor or any general or limited partner of Grantor other than the Secured Property for the loan.
The limitation of liability set forth in this section shall be void and of no effect if Grantor delays or
attempts to delay any foreclosure or exercise of the power of sale under any of the security
instruments or any other remedy with respect to the collateral for the loan, including a claim by
Grantor that any of the security instruments or other loan documents is invalid to the extent that
Grantor would be precluded from exercising its remedies against the Secured Property for the loan.
.
-5-
1357769\ I
I
Book 00740: 1106 Augu'sta - Richmond County
2001022108 07/24/2001 14:36:29.00
.
3.
.,
]:tequirements; Proper Care and Use,
(a) Subject to the right of Grantor to contest a Legal Requirement (hereinafter
defined) as provided in Section 11 hereof, Grantor promptly shall comply with, or cause to be
complied with, all present and future laws, statutes, codes, ordinances, orders, judgments, decrees,
injunctions, rules, regulations, restrictions and requirements (collectively "Legal Requirements") of
every Govemmental Authority having jurisdiction over Grantor or the Secured Property (and in no
case later than 10 days after an order or other form of notice has been issued by such Govemmental
Authority or such longer period as may be permitted under the tenns of such order or notice) or the
use, manner of use, occupancy, possession, operation, maintenance, alteration, repair or restoration
of the Real Estate, without regard to the nature of the work to be done or the cost of performing the
same, whether foreseen or unforeseen, ordinary or extraordinary, and shall perform, or cause to be
perfom1ed, all obligations, agreements, covenants, restrictions and conditions now or hereafter of
record which may be applicable to Grantor or to the Secured Property or to the use, manner of use,
occupancy, possession, operation, maintenance, alteration, repair or restoration of the Real Estate.
.
(b) Grantor shall (i) not abandon the Real Estate or any portion thereof, (ii)
maintain the Real Estate and Fixtures in good repair, order and condition, subject to wear and tear in
the ordinary course of business, (iii) subject to Section 7(b), promptly make all necessary repairs,
renewals, replacements, additions and improvements to the Real Estate and Fixtures, (iv) not
commit or suffer waste with respect to the Real Estate and Fixtures, (v) refrain from impairing or
diminishing the value or integrity of the Secured Property or the priority or security of the security
interest and lien of this Deed to Secure Debt, (vi) not remove, demolish or materially alter any of
the Real Estate and Fixtures, except for physical assets used, consumed or otherwise disposed of in
the ordinary course of business, without the prior written consent of Grantee in each instance, (vii)
not make, install or permit to be made or installed, any material alterations or additions to the Real
Estate if doing so would, in the sole opinion of Grantee, impair to any extent the value of the
Secured Property, (viii) not make, suffer or pem1it any nuisance to exist on the Real Estate or any
portion thereof, and (ix) pem1it Grantee and its agents, at times and with notices, if any, required
under Paragraph 6(d) of the Letter of Credit Agreement, to enter upon the Real Estate for the
purpose of inspecting and appraising the Real Estate or any portion thereof. Notwithstanding the
foregoing, Grantee acknowledges that the Real Estate is being rehabilitated and is not in good
repair, order and condition as of the date hereof and that portions of the Real Estate may be
demolished or altered pursuant to the plans and specifications fOf such rehabilitation.
(c) Grantor shall not by any act or omission pem1it any building or other
improvement located on any propeliy which is not subject to the lien of this Deed to Secure Debt to
rely upon the Real Estate or any portion thereof or any interest therein to fulfill any Legal
Requirement and Grantor hereby assigns to Grantee any and all rights to give consent for all or any
portion of the Real Estate or any interest therein to be so used, Grantor shall not, by any act or
omission, initiate or join in any zoning change, private easement or any other modification of the
zoning regulating the Real Estate. Any act or omission by Grantor which would result in a violation
of any of the provisions of this Section 3 shall be null and void,
.'
-6-
1357769\'1
i" I
.
4.
,
Taxes on Secured Property or Grantee.
Book 007401107 A" -...
20010221 08 07~2~i2~iOch1m01n4d County
:36:29.00
(a) If the United States of America, the State in which the Real Estate is located
or any political subdivision thereof or any city, town, county or municipality in which the Real
Estate is located or any agency, department, bureau, board, commission or instrumentality of any of
the foregoing now existing or hereafter created (collectively "Taxing Authorities") shall levy, assess
or charge' any tax, assessment, fee or imposition upon this Deed to Secure Debt or any other
Security Instruments, the Indebtedness, the interest of Grantee in the Secured Property, or Grantee
by reason of this Deed to Secure Debt or any other Security Instruments, the Indebtedness or
Grantee's interest in the Secured Property (individually a "Tax", and collectively "Taxes")
(excepting therefrom any income tax on payments of interest made under the Credit Agreement),
Grantor shall pay all such Taxes to, for, or on account of, Grantee as they become due and payable
and, on demand, shall furnish proof of such payment to Grantee. If Grantor shall fail to pay any
such Tax, then, Grantee, at its option and without notice, may pay any such Tax and, in such event,
the amount so paid (i) shall be deemed to be Indebtedness, (ii) shall be secured by this Deed to
Secure Debt, and (iii) immediately shall be due and payable, on demand, together with interest
thereon at a rate of interest thereon equal to the highest "Default Rate" chargeable under the Credit
Agreement (such rate of interest being hereinafter referred to as the "Interest Rate"), from the date
of any such payment to the date of repayment to Grantee.
.
(b) If any Taxing Authority shall at any time require revenue, documentary or
similar stamps to be affixed to this Deed to Secure Debt, the Indebtedness, the Note or any other
Security Instruments or shall require the payment of any Taxes with respect to the ownership or
recording of this Deed to Secure Debt or any other Security Instruments, Grantor, upon demand,
shall pay for such stamps or Taxes, as the case may be, in the required amount and shall deliver the
same to Grantee, together with a copy of the receipted bill therefor. If Grantor shall fail to pay for
any such stamps or Taxes, as the case may be, then, Grantee, at its option and without notice, may
pay for the same and, in such event, the amount so paid (i) shall be deemed to be Indebtedness, (ii)
shall be secured by this Deed to Secure Debt, and (iii) shall be due and payable, on demand, to-
gether with interest thereon at the Interest Rate, from the date of any such payment by Grantee to
the date of repayment to Grantee. Grantor shall indemnify Grantee for, and shall hold Grantee
harmless from and against, any and all liability which Grantee may incur on account of such
revenue, documentary or other similar stamps or by reason of any Taxes referred to in Sections 4(a)
and 4(c) hereof whether such liability arises before or after payment of the Indebtedness and
whether or not the security interest and lien of this Deed to Secure Debt shall have been released.
(c) In the event of the passage, after the date of this Deed to Secure Debt, of any
law of the jurisdiction in which the Real Estate is located which shall deduct from the value of the
Secured Property, for purposes of taxation, any security interest therein or lien thereon or shall
change in any way the laws for the taxation of mortgages, deeds of trust or deeds to secure debt for
State or local purposes or the manner of the collection of any such Taxes and shall impose any Tax,
either directly or indirectly, on this Deed to Secure Debt or any other Security Instruments, then
Grantor shall pay such Tax when the same shall be due and payable and shall agree in writing to
pay the whole of such Tax when thereafter levied or assessed against the Secured Property.
'.
-7-
I J577b9vl
'i' r.
.
.
5,
,
Payment of Impositions,
Book 007401108 Augusta - R' h ~
2001 Ie mond County
022108 07/24/2001 14:36:29.00
(a) Subject to the provisions of Section II hereof, not later than the date on
which payment of the same shall be due, ,that is, the day before the date on which any fine, penalty,
interest, late charge or loss may be added thereto or imposed by reason of the nonpayment thereof,
Grantor shall pay and discharge all Taxes (including, but without limiting the generality of the
foregoing, all real property taxes and assessments, personal property taxes, income, franchise,
withholding, profits and gross receipts taxes), charges for any easement or agreement maintained
for the benefit of the Secured Property or any portion thereof, general and special assessments and
levies, permit, inspection and license fees, water and sewer rents and charges and any other charges
of every kind and nature whatsoever, foreseen or unforeseen, ordinary or extraordinary, public or
private, which, at any time, are imposed upon or levied or assessed against Grantor or the Secured
Property or any portion thereof, or which arise with respect to, or in connection with, the use,
manner of use, occupancy, possession, operation, maintenance, alteration, repair or restoration of
the Real Estate or any portion thereof, together with any penalties, interest or late charges which
may be imposed in connection with any of the foregoing (all of the foregoing taxes, assessments,
levies and other charges, together with such interest, penalties and late charges, being hereinafter
collectively referred to as "Impositions"). If Grantee shall so request, Grantor shall deliver to
Grantee evidence acceptable to Grantee showing the payment of each such Imposition and shall
deliver to Grantee, within ten days after receipt thereof, copies of all settlements and notices
pertaining to any Imposition which may be issued by any Governmental Authority,
.
(b) Nothing contained in this Deed to Secure Debt shall affect any right or
remedy of Grantee under this Deed to Secure Debt or otherwise to pay, upon the occurrence and
during the continuance of any Default, without notice or demand to Grantor, any Imposition from
and after the date on which such Imposition shall have become due and payable and, in such event,
the amount so paid (i) shall be deemed to be Indebtedness, (ii) shall be secured by this Deed to
Secure Debt, and (iii) shall be immediately due and payable, on demand, together with interest
thereon at the Interest Rate, from the date of any such payment by Grantee to the date of repayment
to Grantee,
.
6, Deposits. Upon the occurrence of a Default and during the continuation thereof,
Grantor, at Grantee's request, shall deposit with Grante~, on the first day of each month from and
after the date of such request, an amount equal to one-twelfth (1/12th) of (a) the allliual Impositions,
and (b) the annual premiums for the insurance required to be provided hereunder with respect to the
Real Estate (such premiums for insurance being hereinafter referred to as "Insurance Premiums").
The amount of annual Impositions and Insurance Premiums, when unknown, shall be estimated in
good faith by Grantee. Such deposits shall be used by Grantee to pay Impositions and Insurance
Premiums when due. From time to time, on demand and upon the occurrence of a Default and
during the continuance thereof, Grantor shall pay to Grantee additional sums sufficient to permit
payment of the next due installments of Impositions and Insurance Premiums, if, and to the extent
that, the required monthly deposits thereafter falling due before the respective payment dates would
otherwise be insufficient to permit the full payment thereof Upon the occurrence of a Default and
during the continuance thereof, Grantee may apply any funds deposited with Grantee for
Impositions or Insurance Premiums to the payment of any of the Indebtedness or to the performance
of any such Obligation. To the extent pennitted by law, the sums deposited pursuant to this Section
2. shall bear no interest and may be commingled with other funds of Grantee. Upon an assignment
-8-'
1357769\'1
.
'..
'j\
^,
~.
Book 007401109 Augusta - Richmond County
2001022108 07/24/2001 14:36:29.00
.
of this Deed to" Secure Debt, Grantee shall have the right to pay over the balance of any sums
deposited pursuant to this Section 6 and then in its possession to Grantee's assignee, and, thereupon,
Grantee shall be completely released from all liability with respect to such sums and Grantor shall
look solely to Grantee's assignee with respect thereto. The foregoing provisions shall apply to
every transfer of such deposits to a ne\v assignee, Upon payment of the entire amount of the
Indebtedness and performance of the Obligations in accordance with the provisions of this Deed to
Secure Debt, the Credit Agreement and the other Security Instruments, or, at the election of
Grantee, at any prior time, the balance of the deposits then in Grantee's possession shall be paid
over to the record owner of the Secured Property. Grantor, at Grantee's request, shall make the
aforesaid deposits with such services or financial institution as Grantee from time to time shall
designate.
7. Insurance.
(a) Grantor shall, at its sole cost and expense, provide and maintain in full force
and effect, for the benefit of Grantee, the insurance policies required to be maintained by Grantor
pursuant to Paragraph 6(v) of the Letter of Credit Agreement.
(b) All Insurance Proceeds paid to Grantee shall be applied to Indebtedness or
used for repair, replacement or restoration, as detemlined by Grantee,
(c) If, prior to the receipt by Grantee of any Insurance Proceeds, the Secured
Property or any portion thereof shall have been sold on judicial foreclosure of this Deed to Secure
Debt, Grantee shall have the right to receive the Insurance Proceeds to the extent of any deficiency
found to be due upon such sale, whether or not a deficiency jucigment on this Deed to Secure Debt
shall have been sought or recovered or denied, together with interest thereon at the Interest Rate,
and the attomeys' fees, costs and disbursements inClllTed by Grantee in connection with the collec-
tion of the Insurance Proceeds. Anything contained in any Legal Requirement or in this Deed to
Secure Debt to the contrary notwithstanding, Grantee shall not be deemed to be a trustee or other
fiduciary with respect to its receipt of any Insurance Proceeds. Notwithstanding any damage to, or
destmction of, or injury to, the Buildings or the Fixtures or any portion thereof by fire or other casu-
alty, Grantor shall continue to make all payments due under this Deed to Secure Debt, the Credit
Agreement and the other Security Instruments in accordance with the provisions of this Deed to
Secure Debt, the Credit Agreement and the applicable provisions of the other Security Instruments.
(d) Any transfer of the Secured Property, in accordance with the provisions
hereof, including a transfer by judicial foreclosure or deed in lieu of foreclosure, shall transfer
therewith all of Grantor's interest in all insurance policies then covering the Buildings and the
Fixtures or the operations conducted at the Real Estate, including, but without limiting the
generality of the foregoing, any uneamed premiums.
8, Condemnation/Eminent Domain, Notwithstanding (a) any taking by eminent
domain, condemnation or otherwise of all or any portion of the Secured Property, or (b) the change
of grade of any street, road or avenue or the widening of streets, roads or avenues adjoining or
abutting the Land, or (c) any other injury to, or decrease in value oC the Secured Property caused in
any manner by any Govemmental Authority (any of the foregoing events being hereinafter referred
to as a "Taking"), Grantor shall continue to make all payments due under this Deed to Secure Debt
-9-
1357769v I
,
Book 00740 1110 Augusta - Richmond County
2001022108 07/24/2001 14:36:29.00
.
.,
and under the Ci"edit Agreement in accordance with the provisions of this Deed to Secure Debt, the
Credit Agreement and the applicable provisions of the other Security Instruments. In the event of
any Taking, all provisions of Paragraph 8(xxiii) of the Letter of Credit Agreement applicable to
condemnation shall apply. If, prior to the receipt by Grantee of any A ward, the Secured Property or
any portion thereof shall have been sold on foreclosure of this Deed to Secure Debt, Grantee shall
have the right to receive the Award to the extent of any deficiency found to be due upon such sale,
whether or not a deficiency judgment on this Deed to Secure Debt shall have been sought or
recovered or denied, together with interest thereon at the Interest Rate, and the attorneys' fees,
costs and disbursements incurred by Grantee in connection with the collection of the Award.
9. Sale and Lease of Secured Property. Grantor shall not, at any time, without the prior
written consent of Grantee in each instance,
(1) sell, assign, transfer or convey all or any part of the Secured Property or any
interest therein, except for physical assets used, consumed or otherwise disposed of in the ordinary
course of business; or
(2) other than tenant leases in the ordinary course of business, lease or sublease the
Real Estate or any portion thereof except in accordance with the tem1S hereof; or
.
(3) (i) obtain any new loan which is secured by the Secured Property or any p0l1ion
thereof (whether superior or junior to the security interest and lien of this Deed to Secure Debt and
whether recourse or nonrecourse) except from Grantee pursuant to the Credit Agreement or (ii)
except for the Pern1itted Encumbrances, otherwise create, grant, pern1it or suffer any lien, security
interest, claim, charge or encumbrance of any kind or nature whatsoever, whether recorded or
unrecorded, against the Secured Property or any portion thereof.
10. Discharge of Liens. Subject to the provisions of Section 11 hereof, Grantor at all
times shall keep the Secured Property free from the liens of mechanics, laborers, contractors,
subcontractors and materialmen and, except for the Pennitted Encumbrances and any new or
additional security titles or security interests which may be made to Grantee to secure the
Indebtedness, free from any and all other liens, claims, charges or encumbrances of any kind or
nature whatsoever. If any such liens, claims, charges or encumbrances shall be recorded, Grantor
shall forthwith deliver copies thereof to Grantee and, within 10 days after such recording, Grantor
shall cause the same to be discharged of record by payment, bonding or in such other manner as
shall be satisfactory to Grantee, and shall exhibit to Grantee, upon demand, evidence satisfactory to
Grantee of such discharge.
II. Right of Contest. Grantor, at its sole cost and expense, may, in good faith, contest,
by proper legal actions or proceedings, the validity of any Legal Requirement or the application
thereof to Grantor or the Secured Property, or the validity or amount of any Imposition or the
validity of the claims of any mechanics, laborers, subcontractors, contractors or materialmen
(hereinafter referred to as "Contractor's Claims"),
.
-10-
1357769v I
.
'.
.
12.
teases.
Book 00740.1111 Augusta - Richmond County
2001022108 07/24/2001 14:36:29.00
(a) With the exception of any tenant leases in connection with the Real Estate, as
to any Leases which shall be consented to by Grantee, Grantor shall (i) promptly perform all of the
provisions of the Leases on the part of the lessor thereunder to be performed, (ii) promptly enforce
all of the provisions of the Leases on the part of the lessees thereunder to be perfom1ed, (iii) refrain
from taking any action which would result in the termination of the Lease by any lessee thereunder
or the diminution of the Rents thereunder, (iv) appear in and prosecute or defend any action or
proceeding arising under, growing out of, or in any manner connected with, the Leases or the
obligations of the lessor or the lessees thereunder, as the case may be, (v) exercise, within five days
after demand by Grantee, any right to request from the lessee under any Lease a certificate with
respect to the status thereof, (vi) deliver to Grantee, within fifteen days after demand by Grantee, a
written statement containing the names of all lessees, the stated term of each Lease and the spaces
occupied and rentals payable thereunder and a statement of all Leases which are then in default,
including the nature and magnitude of any such default, (vii) provide Grantee \-vith a copy of each
notice of default received by Grantor under any Lease immediately upon receipt thereof and deliver
to Grantee a copy of each notice of default sent by Grantor under any Lease simultaneously with its
delivery of such notice under such Lease, and (viii) promptly deliver to Grantee, within five days
after demand by Grantee, a fully executed counterpart of all Leases. All Leases, if any, shall be
subject and subordinate to this Deed to Secure Debt. With respect to all tenant leases, Grantor shall
make available its records during normal business hours for inspection and shall provide copies of
any such leases upon Grantee's request.
(b) Grantor hereby assigns to Grantee, from and after the date hereof, primari Iy,
on a parit)' with the Secured Property, and not secondarily, as further security for the payment of the
Indebtedness and the perfonnance of the Obligations, the Leases and the Rents. Nothing
contained in this Section 12 shall be construed to bind Grantee to the perfom1ance of any of the
tem1s, covenants, conditions or agreements contained in any Lease or otherwise impose any
obligation on Grantee (including, but without limiting the generality of the foregoing, any liability
under the covenant of quiet enjoyment contained in any Lease in the event that any lessee shall have
been joined as a party defendant in any action to foreclose this Deed to Secure Debt or commenced
by reason of a Default hereunder or in the event any lessee shall have been barred and foreclosed of
any or al1 right, title and interest and equity of redemption in the Secured Property), except that
Grantee shall be accountable for any money actually received pursuant to the aforesaid assignment.
Grantor hereby further grants to Grantee the right, but not the obligation (i) to enter upon and take
possession of the Real Estate for the purpose of collecting the Rents, (ii) to dispossess by the usual
summary proceedings any lessee defaulting in making any payment due under any Lease to Grantee
or defaulting in the perfom1ance of any of its other obligations under its Lease, (iii) to let the Real
Estate or any portion thereof, (iv) to apply the Rents on account of the Indebtedness, and (v) to
perform such other acts as Grantee is entitled to perfom1 pursuant to this Section 12. Such
assignment and grant shall continue in effect until the entire amount of the Indebtedness shall be
paid in full and all of the Obligations shall be fully perfom1ed in accordance with this Deed to
Secure Debt, the Credit Agreement and the other Security Instruments, the execution of this Deed to
Secure Debt constituting and evidencing the ilTevocable consent of Grantor to the entry upon and
taking possession of the Real Estate by Grantee pursuant to such grant, whether or not an action to
foreclose this Deed to Secure Debt has been instituted and without applying for a receiver;
provided, however, that Grantee agrees that, except upon the occurrence of a Default and during the
-11-
1357769\'1
.'
..
.
Book 007401112 Augusta - Richmond County
2001022108 07/24/2001 14:36:29.00
...
continuance the'feoj~ it will not exercise the rights granted in the immediately precedll1g sentence.
Until the occurrence of a Default, Grantor shall be entitled to collect, receive, retain and apply said
rents, issues and profits in the ordinary course of Grantor's business. Grantor agrees to use said
rents, issues and profits in payment of principal and interest becoming due under this Deed to
Secure Debt and in payment of taxes, assessments, water rates, sewer rents, and charges becoming
due against the Real Estate and which are due and payable at the time of collection of such rents,
issues and profits, before using such proceeds for any other purpose. Such right of Grantor to
collect and receive such rents, issues and profits may be revoked by Grantee upon the occurrence of
a Default (or at any time during the continuance thereof) by giving written notice of such
revocation, served personally upon or sent by registered or certified mail to the record owner of the
Real Estate. At all times when a Default has occurred and is continuing and if Grantor is in
possession or control of the Real Estate, Grantor shall pay monthly, in advance, to Grantee, upon
Grantee's entry into possession pursuant to the foregoing grant, or to any receiver appointed to col-
lect the Rents, the fair and reasonable rental value for the use and occupation of the Real Estate, and
upon the failure of Grantor to make any such payment, Grantor shall vacate and surrender the
possession of the Real Estate to Grantee or to such receiver, and upon Grantor's fai I ure to so vacate
and surrender, Grantor may be evicted by summary proceedings.
(c) Upon notice and demand, Grantor shall, from time to time, execute,
acknowledge and deliver to Grantee, or shall cause to be executed, acknowledged and delivered to
Grantee, in recordable form reasonably satisfactory to Grantee, one or more separate assignments
(confirmatory of the general assignment provided in this Section 12) of the lessor's interest in any
Lease. Grantor shall pay to Grantee the reasonable expenses incurred by Grantee in connection
with the preparation and recording of any such instrument.
13, Environmental Matters.
(a) For purposes of this Deed to Secure Debt, the terms "Affiliate,"
"Environmental Laws," and "Hazardous Materials" shall each have the respective definitions given
such terms in the Credit Agreement.
(b) Grantor hereby affirms each of the representations and warranties set forth in
Paragraph S(r) and each of the covenants set fOlih in Paragraph 6(b), of the Letter of Credit
Agreement, which are hereby incorporated herein by this reference as if fully set forth herein.
( c) Grantor agrees to indemnify and hold Grantee, its affiliates, its successors
and assigns and their respective officers, directors, employees, attorneys and agents (collectively,
"Indemnified Persons") harmless from and against any and all claims, losses, damages, liabilities
and expenses of any kind or nature whatsoever, including without limitation, all environmental li-
abilities and all other deficiencies, fines, penalties, or expenses which may be incurred by or
asseried against or involve any Indemnified Person in any and all actions, suits, proceedings
(including investigations or inquiries) or claims suffered or inclllTed by any Indemnified Person,
whether as Grantee pursuant to this Deed to Secure Debt, or as successor in interest to Grantor as
owner or lessee of the Secured Property by virtue of foreclosure or acceptance of a deed in lieu of
foreclosure or otherwise: (i) under or on account of the Environmental Laws; (ii) with respect to
any release (or threat of release within the meaning of CERCLA) of Hazardous Materials
(including, without limitation, any Hazardous Materials installed in the Secured Property or used for
-12-
1357769vl
.
.
.
(
'\
Book 00740 1113 Augusta - Richmond County
2001022108 07/24/2001 14:36:29.00
i
construction or'equipment), whether or not the same ongInates or emanates from the Secured
Property or any contiguous real estate, including any loss of value of the Secured Property as a
result of a release (or threat of release within the meaning of CERCLA) of Hazardous Materials or
otherwise resulting from the presence of a Hazardous Materials; and (iii) with respect to any other
matters affecting the Secured Property within the jurisdiction of any federal, state or municipal
authority administering the Environmental Laws and upon demand by Grantee, will payor
reimburse any such Indemnified Person for any legal or other expense incurred in connection with
investigating, defending or preparing to defend or participate in any such action, suit, proceeding
(including any inquiry or investigation) or claim whether commenced or threatened (including such
expenses incurred on any appeal) and including without limitation investigation, removal, cleanup
and remedial costs and modi fication costs incurred to permit continued or resumed nonnal
operations of the Secured Property, it being understood that each Indemnified Person shall have the
right to select his own counsel, with the consent of the Grantor (which consent shaIl not be
unreasonably withheld), in connection with such matters; provided that Grantor shall not be
responsible for such indemnification to such Indemnified Persons with respect to any portion of any
such claims, losses, damages, liabilities or expenses which results solely from such Indemnified
Person's gross negligence or willful misconduct as determined by a final judgment of a court of
competent jurisdiction or which results from acts or activities or conditions created by any such
Indemnified Persons, 'as successor in interest to Grantor, and arising or occurring after foreclosure
of the Secured Property by any such Indemnified Person or acceptance of a deed in lieu thereof.
The provisions of this Section 13(c) shall apply whether or not any such Indemnified Person is a
pm1y to any such action, suit, proceeding or claim and are expressly intended to include, but not be
limited to, reimbursement of reasonable legal and other expenses actually incurred, including
expenses incurred in depositions or discovery proceedings. The indemnity obligations of Grantor
hereunder shall be in addition to, and not a limitation of, any other liability or obligation which
Grantor may have to an Indemnified Person, at common law or otherwise, including but not limited
to any obligation of contribution.
(d) Grantor agrees that in the event that it becomes aware of any claim for
indemnification under this Section 13, Grantor shall promptly notify Grantee in writing, but any
failure to so notify Grantor shall not relieve Grantor of any of its obligations hereunder.
(e) Notwithstanding any provision of this Deed to Secure Debt to the contrary,
the provisions of this Section 13 shall survive the tem1ination of the Credit Agreement and the
repayment of the Indebtedness, the payment and performance of all other Obligations owed to
Grantee and the release of this Deed to Secure Debt.
14. Deed to Secure Debt Expenses. Grantor shall pay, together with any interest or
penalties imposed in connection therewith, all reasonable expenses of Grantee incident to the
preparation, execution, acknowledgment, delivery and/or recording of this Deed to Secure Debt
including, but without limiting the generality of the foregoing, all filing, registration and recording
fees and charges, documentary stamps, intangible taxes and all Federal, State, county and municipal
taxes, duties, imposts, assessments and charges now or hereafter required by reason of, or in
connection with, this Deed to Secure Debt or any other Secu~ity Instruments and, in any event,
otherwise shall comply with the provisions set forth in Section 4 hereof.
-13-
I 35i7ol)" J
.
.
Book 007401114 Augusta - Richmond County
2001022108 07/24/2001 14:36:29.00
.
i
15. Grantee's Right to Perform. At any time when a Default has occurred and is
continuing hereunder, Grantee may (but shall be under no obligation to), at any time perform the
Obligations, without waiving or releasing Grantor from any Obligations or any Default under this
Deed to Secure Debt, and, in such event, the cost thereof, including, but without limiting the
generality of the foregoing, reasonable attorneys fees, costs and disbursements actually incurred in
connection therewith (a) shall be deemed to be Indebtedness, (b) shall be secured by this Deed to
Secure Debt, and (c) shall be payable, on demand, together with interest thereon at the Interest Rate,
from the date of any such payment by Grantee to the date of repayment to Grantee. No payment or
advance of money by Grantee pursuant to the provisions of this Section 15 shall cure, or shall be
deemed or construed to cure, any such Default by Grantor hereunder or under the Credit Agreement
or waive any rights or remedies of Grantee hereunder or at law or in equity by reason of any such
Default.
16. Grantor's Existence. Grantor shall do all things necessary to preserve and keep in
full force and effect its existence, franchises, rights and privileges under the laws of the State in
which the Secured Property is located and its right to own property and transact business in such
State.
17, Grantee's Costs and Expenses. If (a) any Default shall occur, or (b) Grantee shall
exercise any of its rights or remedies hereunder, or ( c) any action or proceeding is commenced in
which it becomes necessary to defend or uphold the security interest and lien or priority of this
Deed to Secure Debt or any action or proceeding is commenced to which Grantee is or becomes a
pm1y, or (d) the taking, holding or servicing of this Deed to Secure Debt by Grantee is alleged to
subject Grantee to any civil or criminal fine or penalty, or (e) Grantee's review and approval of any
document, including, but without limiting the generality 0 f the foregoing, any Lease, is requested by
Grantor or required by Grantee, then, in any such event, all such costs, expenses and fees incurred
by Grantee in connection therewith (including, but without limiting the generality of the foregoing,
any civil or criminal fines or penalties and attorneys fees, costs and disbursements actually incUlTed)
(i) shall be deemed to be Indebtedness, (ii) shall be secured by this Deed to Secure Debt, and (iii)
shall be payable, on demand, together with interest thereon at the Interest Rate, from the date of any
such payment by Grantee to the date of repayment to Grantee. In any action to foreclose this Deed
to Secure Debt or to recover or collect the Indebtedness or any portion thereof, the provisions of this
Section 17 with respect to the recovery of costs, expenses, disbursements and penalties shall prevail
unaffected by the provisions of any Legal Requirement with respect to the same to the extent that
the provisions of this Section 17 are not inconsistent therewith or violative thereof.
18. Intentionally Deleted,
19. Remedies.
(a) Upon the occurrence of any Default hereunder and during the continuance
thereof, Grantee may, without notice, presentment, demand or protest, all of which are hereby
expressly waived by Grantor to the extent permitted by applicable law, take such action as Grantee
deems advisable, in its sole discretion, to protect and enforce its rights in and to the Secured
Property, including, but without limiting the generality of the foregoing, the following actions, each
of which may be pursued concurrently or otherwise, at such time and in such manner as Grantee
-14-
\357769vl
-~-l---......
Book 00740:1115 Augusta - Richmond County
2001022108 07/24/2001 14:36:29.00
.
may determine/in its sole discretion, without impairing or otherwise affecting the other rights and
remedies of Grantee hereunder or at law or in equity, but subject to the provisions of applicable law:
(1) Grantee may declare the entire amount of the Loan immediately due and
payable, Thereupon, all of the other Obligations also shall become immediately due and
payable,
(2) Grantee may, without releasing Grantor from any Obligation under this Deed
to Secure Debt or any other Security Instruments and without waiving any Default, exercise
any of its rights and remedies under Section 15 hereof
.
(3) Grantee may (x) institute and maintain an action of complete or partial
foreclosure against the Secured Property at law or in equity, pursuant to Section 19(b) hereof
or otherwise, in which case the Secured Property may be sold in one or more parcels (y)
institute and maintain an action with respect to the Secured Property under any other
Security Instruments, or (z) take such other action as may be allowed at law or in equity for
the enforcement of this Deed to Secure Debt, the Additional Deed to Secure Debts, and the
other Security Instruments. Grantee may proceed in any such action to final judgment and
execution thereon for the whole of the Indebtedness, together with interest thereon at the
Interest Rate, from the date on which the Grantee shall declare the same to be due and pay-
able to the date of repayment to Grantee, and all costs of any such action, including, but
without limiting the generality of the foregoing, reasonable attorneys' fees, costs and
disbursements actually incuned,
'.
(4) Grantee may, without releasing Grantor from any Obligation under this Deed
to Secure Debt, and without waiving any Default, enter upon and take possession of the Real
Estate or any portion thereof, either personally or by its agents, nominees or attorneys, and
dispossess Grantor and its agents and servants therefrom and, thereupon, Grantee may (x)
use, control, insure, manage and operate the Real Estate and the business conducted upon
the Real Estate, (y) make reasonable alterations, additions, repairs, renewals, replacements
and improvements to or on the Secured Property, and (z) exercise all rights and powers of
Grantor with respect to the Secured Property, either in the name of Grantor or otherwise,
including, but without limiting the generality of the foregoing, the right to make, cancel,
enforce or modify Leases, obtain and evict lessees, establish or change the amount of any
Rents and the manner of collection thereof and perform any acts which Grantee deems
proper, in its sole discretion, to protect the security of this Deed to Secure Debt. After
deduction of all reasonable costs and expenses of operating and managing the Real Estate,
including, but without limiting the generality of the foregoing, attorneys fees, costs and dis-
bursements, administration expenses, management fees and brokers' commissions,
satisfaction of liens on any of the Secured Property, payment of Impositions, claims and
Insurance Premiums, invoices of persons who may have supplied goods and services to or
for the benefit of any of the Secured Property and all costs and expenses of the maintenance,
repair, restoration, alteration or improvement of any of the Secured Property, Grantee shall
apply the Rents received by Grantee to payment of the Indebtedness or p,erfonnance of the
Obligations. Grantee may apply the Rents received by Grantee to the payment of any or all
of the foregoing in such order and amounts as Grantee, in its sole discretion, may elect.
Grantee may, in its sole discretion, determine the method by which, and extent to which, the
-15-
IJS77(19v)
Book 00740:1116 Augusta - Richmond County
2001022108 07/24/2001 14:36:29.00
.
,
Rents will be collected and the obligations of the lessees under the Leases enforced and
Grantee may waive or fail to enforce any right or remedy of the lessor under any Lease.
(5) To the extent permitted by the terms of any Lease or applicable law, Grantee
may disaffirm and cancel any Lease affecting the Real Estate or any portion thereof at any
time during the period that it is exercising its remedies under this Section 19, even though
Grantee shall have enforced such Lease, collected Rents thereunder or taken any action that
might be deemed by law to constitute an affirmance of such Lease, Such disaffirmance shall
be made by notice addressed to the lessee at the Real Estate or, at Grantee's option, such
other address of the lessee as may be set forth in such Lease.
(6) Grantee may institute proceedings for the complete foreclosure of this Deed
to Secure Debt either at law, whether pursuant to this Section 19 or otherwise, or in equity in
which case the Secured Property may be sold for cash or upon credit in one or more parcels.
(7) Grantee may, with or without entry, to the extent pennitted and pursuant to
the procedures provided by applicable law, institute proceedings for the partial foreclosure
of this Deed to Secure Debt for the portion of the Indebtedness then due and payable (if
Grantee shall have elected not to declare the entire Indebtedness to be immediately due and
owing), subject to the continuing lien of this Deed to Secure Debt for the balance of the
Indebtedness not then due,
.
(8) Grantee may institute an action, suit or proceeding in equity for the specific
performance of any covenant, condition or agreement contained herein or in the Security
Instmments.
(9) Grantee may recover judgment on the Loan, singly or collectively, either
before, during or after any proceedings for the enforcement of this Deed to Secure Debt.
(10) Grantee may, without notice to the Grantor, apply for and obtain the
appointment of a tmstee, receiver, liquidator or conservator of the Secured Property, without
regard for the adequacy of the security for the Indebtedness and without regard for the
solvency of Grantor, its general partner, any other guarantor of the Indebtedness, or any
other person, firm or other entity liable for the payment of the Indebtedness and without
regard for any other statutory or common law requirements otherwise applicable to the
appointment of a tmstee, receiver, liquidator or conservator, and Grantor consents to any
such appointment.
.
(11) Grantee may payor perfoml any default in the payment, perfonllance or
observance of any teml, covenant or condition of this Deed to Secure Debt, and all payments
made or costs or expenses incurred by Grantee in connection therewith, shall be secured
hereby and shall be, without demand, immediately repaid by Grantor to Grantee with
interest thereon at the Interest Rate, the necessity for any such actions and of the amounts to
be paid to be in the sole judgment of Grantee, and Grantee may enter and authorize others to
enter upon the Secured Property or any part thereof for the purpose of perfomling or
observing any such defaulted teml, covenant or condition without thereby becoming liable
to Grantor or any person in possession holding under Grantor.
-16-
1357769vl
-------_.- -----,------~
..
Book 007401117 Augusta - Richmond County
2001022108 07/24/2001 14:36:29.00
.
..
('12) Grantee may pursue such other remedies as Grantee may have under
applicable law, in equity or under this Deed to Secure Debt or any of the other Security
In strum en ts.
'.
(b) Ifan Event of Default shall have occurred, Grantee, at its option, may sell the
Secured Propeliy or any part of the Secured Property at public sale or sales before the door of the
courthouse of the county in which the Secured Property or any part of the Secured Property is
situated, to the highest bidder for cash, in order to pay the indebtedness secured hereby and accrued
interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility
charges, if any, with accrued interest thereon, and all expenses of the sale and of all proceedings in
connection therewith, including reasonable attorneys' fees actually incurred, 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 Sheriffs sales are adveliised in said
county. At any such public sale, Grantee may execute and deliver to the purchaser a conveyance of
the Secured Property or any part of the Secured Property in fee simple, with full warranties of title
(or without warranties if Grantee shall so elect) 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, interest, equity and equity of redemption that Grantor
may have in and to the Secured Property and to vest the same in the purchaser or purchasers at such
sale or sales, and all the acts and doings of said agent and attorney-in-fact are hereby ratified and
confirmed and any recitals in said conveyance or conveyances as to facts essential to a valid sale
shall be binding upon Grantor. The aforesaid power of sale and agency hereby granted are coupled
with an interest and are irrevocable by dissolution, insolvency or otherwise, are granted as
cumulative of the other remedies provided hereby or bylaw 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 indebtedness secured hereby. In the event of any such foreclosure sale by Grantee,
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.
(c) Grantee may adjourn from time to time any sale by it to be made under or by
virtue of this Security Deed by announcement at the time and place appointed for such sale or for
such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law,
Grantee, without further notice or publication, may make sllch sale at the time and place to which
the same shall be so adjourned.
(d) Upon any sale made under or by virtue of this Section 19 (whether made
under the power of sale herein granted or under or by virtue of judicial proceedings or of a
judgment or decree of foreclosure and sale), Grantee may bid for and acquire the Secured Property
or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price
by crediting upon the indebtedness the net sales price after deducting therefrom the expenses of the
sale and the costs of the action and any other sums which Grantee is authorized to deduct under this
Security Deed,
.
(e) No recovery of any judgment by Grantee and no levy of an execution under
any judgment upon the Secured Property or upon any other property of Grantor shall affect in any
manner or to any extent, the lien and title of this Security Deed upon the Secured Property or any
-17-
1.157769vl
Book 00740,1118 Augusta - Richmond County
2001022108 07/24/2001 14:36:29.00
.
"
part thereof, OJ"'any liens, titles, rights, powers or remedies of Grantee hereunder, but such liens,
titles, rights, powers and remedies of Grantee shall continue unimpaired as before,
(f) Grantee, at its option, is authorized to foreclose this Deed to Secure Debt
subject to the rights of any tenants of the Real Estate, and the failure to make any such tenants
parties to any such foreclosure proceedings and to foreclose their rights will not be, nor be asse11ed
to be by Grantor, a defense to any proceedings instituted by Grantee to collect the sums secured
hereby,
(g) Grantor shall bear all expenses, including without limitation, reasonable
attorneys' fees, costs and disbursements of or incidental to, enforcement of any provision of this
Deed to Secure Debt or the Indebtedness and for the compromise, curing, defending or asserting
any provision, right or claim with respect thereto, by litigation or otherwise,
(h) The remedies and rights granted to Grantee hereunder are cumulative and are
not in lieu of, but are in addition to, and shall not be affected by the exercise of, any other remedy or
right available to Grantee whether now or hereafter existing either at law or in equity or under this
Deed to Secure Debt or any other Security Instruments.
.
(i) Grantor shall indemnify and hold Grantee harn1less and defend it from any
loss, liability, cost and expense (including without limitation, reasonable attorneys' fees and dis-
bursements actually incurred) and all claims, actions, proceedings and suits arising out of, or in
cOJmection with, any lawful action by Grantee to enforce this Deed to Secure Debt or any Security
Instruments, whether or not any action, proceeding or suit is filed, except any of the foregoing
resulting from Grantee's gross negligence or willful misconduct.
20A. Discontinuance of Proceedings. If Grantee shall have proceeded to invoke any right,
remedy or recourse pem1itted under the Security Documents and shall thereafter elect to discontinue
or abandon it for any reason, Grantee shall have the unqualified right to do so and, in such an event,
Grantor and Grantee shall be restored to their former positions with respect to the Indebtedness, the
Secured Obligations, the Security Documents, the Bond Documents, the Secured Property and
otherwise, and the rights, remedies, recourse and powers of Grantee shall continue as if the right,
remedy or recourse had never been invoked, but no such discontinuance or abandonment shall
waive any Event of Default which may then exist or the right of Grantee thereafter to exercise any
right, remedy or recourse under the Security Documents for such Event of Default. Grantor hereby
expressly waives any and all benefits Grantor may have under O.c.G.A. 944-14-85 to claim or
assert that the Indebtedness has been reinstated in accordance with its tern1S following the
withdrawal of any foreclosure proceedings by Grantee, and acknowledges and agrees that
reinstatement shall occur only upon written agreement of Grantee.
20. Grantor's Actions After Default. Upon the occurrence and during the continuance of
a Default, and immediately upon the commencement of any action, suit or other legal proceedings
by Grantee to obtain judgment for the Indebtedness, or of any other nature in aid of the enforcement
of any of the Note or of this Deed to Secure Debt, Grantor will, if required by Grantee, consent to
the appointment of a receiver or receivers of the Secured Property and of all the earnings, revenues,
rents, issues, profits and income thereof. Nothing herein shall be deemed to require the commence-
'.
-18-
1357769vl
.
'.
Book 00740 1119 Augusta - Richmond County
2001022108 07/24/2001 14:36:29.00
.,
.
ment of a suit' or the consent of Grantor as a condition precedent for Grantee's right to the
appointment of a receiver or the exercise of any other rights or remedies available to Grantee.
21. Security Agreement under Uniform Commercial Code. IT IS THE INTENTION OF
GRANTOR AND GRANTEE THAT THIS DEED TO SECURE DEBT SHALL CONSTITUTE A
SECURITY AGREEMENT WITHIN THE MEANING OF THE UNIFORM COMMERCIAL
CODE OF THE STATE IN WHICH THE SECURED PROPERTY IS LOCATED, AND A
SECURITY INTEREST IS HEREBY GRANTED BY GRANTOR, AS DEBTOR, TO GRANTEE,
AS SECURED PARTY, ENCUMBERING EACH AND EVERY TYPE OR ITEM OF
PERSONAL PROPERTY OR FIXTURES INCLUDED IN THE SECURED PROPERTY IN
WHICH A SECURITY INTEREST MAYBE GRANTED IN COMPLIANCE WITH THE
PROVISIONS OF THE UNIFORM COMMERCIAL CODE OF THE STATE IN WHICH THE
SECURED PROPERTY IS LOCATED. The names of the "Debtor" and the "Secured Party," the
identity or corporate structure and residence or principal place of business of the "Debtor," and the
time period for which the "Debtor" has been using or operating under said name and identity or
corporate structure without change, are as set forth in Exhibit C attached hereto and by this
reference made a part hereof; the mailing address of the "Secured Party" from which information
concerning the security interest granted by this Deed to Secure Debt may be obtained, and the
mailing address of "Debtor", are as set forth on Page 1 and in Section 30 of this Deed to Secure
Debt; a statement indicating the types, or describing the items, of collateral is set forth on Pages 2-5,
inclusive, of this Deed to Secure Debt; the description of the Land is set forth on Exhibit A; and the
record title owner of the Secured Property is the Grantor indicated on Page I of this Deed to Secure
Debt. Notwithstanding the filing of a financing statement covering any of the Secured Property in
the records nom1ally pertaining to personal property, all of the Secured Property, for all purposes
and in all proceedings, legal or equitable, shall be regarded, at Grantee's option (to the extent
pennitted by law), as part of the Real Estate whether or not any such item is physically attached to
the Real Estate or serial numbers are used for the better identification of certain items. The mention
in any such financing statement of any of the Secured Property shall never be construed in any way
as derogating from or impairing this declaration and hereby stated intention of Grantor and Grantee
that such mention in the financing statement is hereby declared to be for the protection of Grantee in
the event any court shall at any time hold that notice of Grantee's priority of interest, to be effective
against any third party, including the Federal government or any authority or agency thereof, must
be filed in the Unifom1 Commercial Code records. Pursuant to the provisions of the Uni form
Commercial Code of the 'State where the Secured Property is located, Grantor hereby authorizes
Grantee, without the signature of Grantor, to execute and file financing and continuation statements
if Grantee shall detem1ine, in its sole discretion, that such financing or continuation statements are
necessary or advisable in order to preserve or perfect its security interest in the Fixtures covered by
this Deed to Secure Debt, and Grantor shall pay to Grantee, on demand, any expenses incurred by
Grantee in connection with the preparation, execution and filing of such statements that may be
filed by Grantee,
22. Additional Representations and WalTanties, Grantor represents and warrants that: (a)
on the date liereof~ no portion of the Buildings or the Fixtures have been materially damaged,
destroyed or inj ured by fire or other casualty which is not now full y restored; (b) as of the date
hereof, Grantor has not received any written notice of any Taking of the Secured Property or any
portion thereof and Grantor is not aware that any such Taking is contemplated; and (c) Grantor is a
-19-
13577691' r
Book 007401120 Augusta - Richmond County
2001022108 07/24/2001 14:36:29.00
.
business and c(jmmercial organization, and the transaction reflected in, and effectuated by, the
Security Instruments is made solely to acquire or to carryon its business and commercial enterprise.
23. No Waivers, Etc. A ~ailure by Grantee to insist upon the strict perfornlance by
Grantor of any of the terms and provisions of this Deed to Secure Debt shall not be deemed to be a
waiver of any of the tenns, covenants, conditions and provisions hereof and Grantee,
notwithstanding any such failure, shall have the right thereafter to insist upon the strict performance
by Grantor of any and all of the tenns, covenants, conditions and provisions of this Deed to Secure
Debt to be performed by Grantor. Grantee may release, regardless of consideration and without the
necessity for any notice to or consent by the holder of any subordinate lien on the Secured Property,
any part of the security held for payment of the Indebtedness or any portion thereof or for the
perf0l111anCe of the Obligations secured by this Deed to Secure Debt without, as to the remainder of
the security, in any manner whatsoever, impairing or affecting the security interest and lien of this
Deed to Secure Debt or the priority of the security interest, and lien of this Deed to Secure Debt
over any subordinate lien. Grantee may resort for the payment of the Indebtedness secured by this
Deed to Secure Debt to any other security therefor held by Grantee in such order and manner as
Grantee may elect.
.
24. Trust Funds. To the extent required by applicable law, all deposits made as security
under any Leases shall be treated as trust funds, shall not be commingled with any other funds of
Grantor and shall be held in accordance with the provisions of any other applicable Legal
Requirements. Within ten days after request by Grantee, Grantor shall furnish Grantee with
evidence, satisfactory to Grantee, in its sole discretion, of compliance with this Section 24, together
with a certified statement of the amount of all of the security deposited by lessees and copies of all
Leases not theretofore delivered to Grantee.
25. Additional Rights. The holder of any subordinate lien on the Secured Property shall
have no right to terminate any Lease whether or not such Lease is subordinate to this Deed to
Secure Debt.
26. Waivers by Grantor. To the extent pernlitted by law:
.
(a) Grantor hereby waives all en'ors and imperfections in any proceedings
instituted by Grantee under this Deed to Secure Debt or any other Security Instnullents and all
benefit of any present or future statute of limitations or any other present or future statute, law, stay,
moratorium, appraisal or valuation law, regulation or judicial decision, nor shall Grantor at any time
insist upon or plead, or in any manner whatsoever, claim or take any benefit or advantage of any
such statute, law, stay, moratorium, regulation or judicial decision, which (i) provides for the
valuation or appraisal of the Secured Property prior to any sale or sales thereof which may be made
pursuant to any provision herein or pursuant to any decree, judgment or order of any court of
competent jurisdiction, (ii) exempts any of the Secured Property or any other property, real or
personal, or any part of the proceeds arising from any sale thereof, from attachment, levy or sale
under execution, (iii) provides for any stay of execution, moratorium, marshalling of assets,
exemption from civil process, redemption or extension of time for payment, (iv) requires Grantee to
institute proceedings in judicial or nonjudicial foreclosure against the Secured Property before
exercising any other remedy afforded Grantee hereunder in the event of a Default, (v) affects any of
the terms, covenants, conditions or provisions of this Deed to Secure Debt, or (vi) conflicts with or
-20-
1357769v I
.
.
.
..
Book 00740 1121 Augusta - Richmond County
2001022108 07/24/2001 14:36:29.00
"
may affect, in a manner which may be adverse to Grantee, any provision, covenant, condition or
term of this Deed to Secure Debt, the Credit Agreement, the Note or any other Security Instruments,
nor shall Grantor at any time after any sale or sales of the Secured Property pursuant to any
provision herein or a judgment of judicial foreclosure, claim or exercise any right under any present
or future statute, law, stay, moratorium, regulation or judicial decision to redeem the Secured
Property or the portion thereof so sold.
(b) Grantor hereby waives the right, if any, to require any sale to be made in
parcels, or the right, if any, to select parcels to be sold, and there shall be no requirement for mar-
shalling of assets,
27, WAIVER OF JURY TRIAL THE GRANTOR AND THE CREDIT PROVIDER
TO THE EXTENT PERMITTED BY APPLICABLE LAW WAIVE, AND OTHERWISE AGREE
NOT TO REQUEST, A TRIAL BY JURY IN ANY COURT AND IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM OF ANY TYPE IN WHICH THE GRANTOR OR THE
CREDIT PROVIDER OR ANY OF THEIR RESPECTIVE SUCCESSORS OR ASSIGNS IS A
PARTY, AS TO ALL MATTERS AND THINGS ARISING DIRECTLY OR INDIRECTLY OUT
OF THIS DEED TO SECURE DEBT, THE NOTE OR THE OTHER SECURITY
INSTRUMENTS.
28. WANER OF GRANTOR'S RIGHTS. BY EXECUTION OF THIS
INSTRUMENT, GRANTOR EXPRESSLY (A) ACKNOWLEDGES THE RIGHT TO
ACCELERATE THE INDEBTEDNESS EVIDENCED BY THE NOTES AND THE POWER OF
ATTORNEY GIVEN HEREIN TO GRANTEE TO SELL THE SECURED PROPERTY BY
NONJUDICIAL FORECLOSURE UPON DEFAULT BY GRANTOR WITHOUT ANY
JUDICIAL HEARING AND WITHOUT ANY NOTICE (EXCEPT AS OTHER WISE PROVIDED
HEREIN); (B) EXCEPT TO THE EXTENT AS OTHERWISE PROVIDED HEREIN, WAIVES
ANY AND ALL RIGHTS WHICH GRANTOR MAY HAVE UNDER THE CONSTITUTION OF
THE UNITED STATES OF AMERICA (lNCLUDING, WITHOUT LIMIT A TION, THE FIFTH
AND FOURTEENTH AMENDMENTS THEREOF), THE VARIOUS PROVISIONS OF THE
CONSTITUTIONS FOR THE SEVERAL STATES, OR BY REASON OF ANY OTHER
APPLICABLE LAW, (1) TO NOnCE AND TO JUDICIAL HEARING PRIOR TO THE
EXERCISE BY THE AUTHORITY OF ANY RIGHT OR REMEDY HEREIN PROVIDED TO
THE AUTHORITY, EXCEPT SUCH NOTICE (IF ANY) AS IS SPECIFICALLY REQUIRED TO
BE GIVEN UNDER THE PROVISIONS OF THIS INSTRUMENT AND (2) CONCERNING THE
APPLICATION, RIGHTS OR BENEFITS OF ANY MORATORIUM, REINSTATEMENT,
MARSHALLING, FORBEARANCE, APPRAISEMENT, V ALUA TION, STAY, EXTENSION,
HOMESTEAD, EXEMPTION OR REDEMPTION LA WS; (C) ACKNOWLEDGES THAT
GRANTOR HAS READ THIS INSTRUMENT AND ANY AND ALL QUESTIONS OF
GRANTOR REGARDING THE LEGAL EFFECT OF THIS INSTRUMENT AND ITS
PROVISIONS HAVE BEEN EXPLAINED FULLY TO GRANTOR, AND GRANTOR HAS
CONSULTED WTTH COUNSEL OF GRANTOR'S CHOICE PRIOR TO EXECUTING THIS
INSTRUMENT; AND (D) ACKNOWLEDGES THAT ALL WAIVERS OF THE AFORESAID
RIGHTS OF GRANTOR HA VE BEEN MADE KNOWfNGL Y, INTENTIONALL Y AND
WILLINGLY BY GRANTOR AS PART OF A BARGAINED FOR LOAN TRANSACTION
AND THAT THIS INSTRUMENT IS VALID AND ENFORCEABLE BY THE AUTHORITY
-21-
1357769" I
1 :...- " ".'
. ,:#i.) .'
.... . .. .... ':' .
..' . ~ -, ~ .,' , . -."
'.. r-
''-\ :.
\"
, .~, Book 00740:1122 Augusta - Richmond Coun'ty
': 2001022108 07/24/2001 14:36:29.00
, "
.
AGAINST GRANTOR IN ACCORDANCE WITH ALL THE' TERMS 'AND "CONDITIONS
HEREOF.
GRANTOR ACKNOWLEDGES . THAT- . IT IS ENGAGED PRIMARILY IN
, '
COMMERCIAL PURSUITS. AND THAT PROCEEDS, OF THE NOTE AND THIS GRANT ARE.
TO .BE UTILIZED IN GRANTOR'S BUSINESS ACTIVITIES AND WILL NOT BE UTILIZED
FOR CONSUMER PURPOSES.
, .
INITIALED BY GRANTOR:
@p
. . .;......
. . ....-
29. . Not Joint Venture or Partnership. Grantor and Grantee' intend that the relationship' .. ~':- ,
created hereunder be solely that of "debtor" and "creditor". Nothing herein is intended to create a, ....
joint venture, partnership, tenancy-in-common, or joint-tenancy relationship between Grantor-and' ' "
Grantee nor to grant Grantee any interest in the SecuredProp~rtyotherthan that of mortgagee,
secured party or letter of credit provider. " ' ',,'
with copies to
G-Hope, L.P.
c/o Capitol Housjng Partne~s, LLC
1261 Glenwood Avenue.
Ati~nta, Georgia. 30316
Attention: Breck Kean
Teiecopy No. (404) 622-1448
.
CDC Lincoln Square, LLC
50 Hurt Plaza
Suite 1350
Mailcode 243
~22-
Il57169vl
.
.
.
"
Book 00740 1123 Augusta - Richmond County
2001022108 07/24/2001 14:36:29.00
..
Atlanta, Georgia 30302
Attn: Charice Heywood
If to the Grantee, to it at:
East Augusta Community Development Corporation
1011 12th Street
Augusta, Georgia 30901
With a copy to:
Augusta, Georgia
530 Greene Street
Augusta, Georgia 30911
A TTN: Administrator
31. prantee's Appointment as Attorney-in-Fact.
(a) Grantor hereby irrevocably constitutes and appoints Grantee and any officer
or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of Grantor and in the name of Grantor or in
its own name, from time to time in Grantee's discretion until the Indebtedness has been paid in full
and the Obligations fully perfornled and satisfied, for the purpose of carrying out the ternlS of this
Deed to Secure Debt, to take any and all appropriate action and to execute and deliver any and all
documents and instruments which may be necessary or desirabb to accomplish the purposes of this
Deed to Secure Debt and, without limiting the generality of the foregoing, hereby gives Grantee the
power and right, on behalf of Grantor, without notice to or assent by Grantor, to do the following:
(l) to ask, demand, collect, receive and give acquittances and receipts for any and
all moneys'due and to become due under any Secured Property and, in the name of Grantor or its
own name or otherwise, to take possession of and endorse and collect any Rents, Awards, Insurance
Proceeds or any instruments for the payment of moneys due under any Secured Property and to file
any claim or to take any other action or proceeding in any court of law or equity or otherwise
deemed appropriate by Grantee for the purpose of collecting any and all such moneys due under any
Secured Property whenever payable and to file any claim or to take any other action or proceeding
in any court of law or equity or otherwise deemed appropriate by Grantee for the purpose of
collecting any and all such moneys due under any Secured Property whenever payable;
(2) to payor discharge taxes, liens, security interests or other encumbrances levied
or placed on or threatened against the Secured Property, to effect any repairs or any insurance called
for by the temlS of this Deed to Secure Debt'and to pay all or any part of the premiums therefor and
the costs thereo f; and
(3) (A) to direct any party liable for any payment under any of the Secured
Property to make payment of any and all moneys due, and to become due thereunder, directly to
Grantee or as Grantee shall direct; (B) to receive payment of and receipt for any and all moneys,
claims and other amounts due, and to become due at any time, in respect of or arising out of any
-23-
135776gvl
.
.
r-- .--
Book 00740 1124 Augusta - Richmond County
2001022108 07/24/2001 14:36:29.00
,
.
Secured Propert'y; (C) to sign and endorse any documents constituting or relating to the Secured
Property; (D) to commence and prosecute any suits, actions or proceedings at law or in equity in
any court of competent jurisdiction to collect the Secured Property or any part thereof and to en-
force any other right in respect of any Secured Propel1y; (E) to defend any suit, action or proceeding
brought against Grantor with respect to any Secured Property; (F) to settle, compromise or adjust
any suit, action or proceeding described above and, in connection therewith, to give such discharges
or releases as Grantee may deem appropriate; and (G) generally to sell, transfer, pledge, make any
agreement with respect to or otherwise deal with any of the Secured Property as fully and
completely as though Grantee were the absolute owner thereof for all purposes, and to do, at
Grantee's option and Grantor's expense, at any time, or from time to time, all acts and things which
Grantee reasonably deems necessary to protect, preserve or realize upon the Secured Property and
Grantee's lien therein, in order to effect the intent of this Deed to Secure Debt, all as fully and
effectively as Grantor might do.
(b) Grantee agrees that, except upon the occurrence and during the continuation
of a Default, it will not exercise the power of attorney or any rights granted to Grantee pursuant to
Section 31(a) above except in connection with the exercise of its rights pursuant to Sections 7 and ~
hereof Grantor hereby ratifies, to the extent pern1itted by law, all that said attorneys shall lawfully
do or cause to be done by virtue hereof. The power of attorney granted pursuant hereto is a power
coupled with an interest and shall be irrevocable until the Obligations are indefeasibly paid in full.
(c) The powers conferred on Grantee hereunder are solely to protect Grantee's
interests in the Secured Property and shall not impose any duty upon it to exercise any such powers,
Grantee shall be accountable only for amounts that it actually receives as a result of the exercise of
such powers and neither it nor any of its officers, directors, employees or agents shall be responsible
to Grantor for any act or failure to act, except for its own gross negligence or willful misconduct.
(d) Grantor also authorizes Grantee, at any time and from time to time upon the
occurrence and during the continuation of any Default, (i) to communicate in its own name with any
party to any Lease with regard to the assignment of the right, title and interest of Grantor in and
under the Leases hereunder and other matters relating thereto and (ii) to execute, in connection with
the sale provided for in Section 19 hereof, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Secured Property,
32. No Modification; Binding Obligations. This Deed to Secure Debt may not be
modified, amended, discharged or waived in whole or in part except by an agreement in writing
signed by Grantor and Grantee, The covenants of this Deed to Secure Debt shall run with the Land
and shall bind Grantor and the heirs, distributees, personal representatives, successors and assigns
of Grantor and all present and subsequent encumbrances, lessees and sub lessees of any of the Se-
cured Propeliy and shall inure to the benefit of Grantee and its respective successors, assigns and
endorsees.
33. Miscellaneous, The Section headings in this Deed to Secure Debt are used only for
convenience and are not part of this Deed to Secure Debt and are not to be used in detern1ining the
intent of the parties or otherwise in interpreting this Deed to Secure Debt. As used in this Deed to
Secure Debt, the singular shall include the plural as the context requires and the following words
and phrases shall have the following meanings: (a) "provisions" shall mean "provisions, tern1s,
-24-
1357769vl
.
.
Book 00740 1125 Augusta - Richmond County
2001022108 07/24/2001 14:36:29.00
.
covenants and/dr conditions"; (b) "lien" shall mean "lien, charge, encumbrance, security title,
security interest, deed to secure debt, mortgage and/or deed of trust"; (c) "obligation" shall mean
"obligation, duty, covenant and/or condition"; (d) "any of the Secured Property" shall mean "the
Secured Property or any portion thereof or interest therein"; and ( e) "Person" shall mean any
individual, sole proprietorship, partnership, joint venture, trust, unincorporated organization,
association, corporation, institution, public benefit corporation, entity or government (whether
federal, state, county, city, municipal or otherwise, including, but without limiting the generality of
the foregoing, any instrumentality division, agency, body or department thereof)." Any act which
Grantee is pemlitted to perfornl under this Deed to Secure Debt, the Credit Agreement or any other
Security Instruments may be performed at any time and from time to time by Grantee or by any
person or entity designated by Grantee, Any act which is prohibited to Grantor under this Deed to
Secure Debt, the Credit Agreement or any other Security Instruments is also prohibited to all lessees
of any of the Secured Property. Each appointment of Grantee as attorney-in-fact for Grantor under
this Deed to Secure Debt, the Credit Agreement or any other Security Instruments shall be ir-
revocable and coupled with an interest.
34. Enforceability. This Deed to Secure Debt shall be governed by, and construed in
accordance with, the laws of the State of Georgia. Whenever possible, each provision of this Deed
to Secure Debt shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Deed to Secure Debt shall be prohibited by or invalid under applicable
law; such provision shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remaining provisions of this Deed to Secure Debt. Nothing in this Deed to Secure
Debt or in any other Security Instruments shall require Grantor to pay, or Grantee to accept, interest
in an amount which would subject Grantee to penalty under applicable law. In the event that the
payment of any interest due hereunder or under any of the other Security Instruments or a payment
which is deemed interest, exceeds the maximum amount payable as interest under the applicable
usury laws, such excess amount shall be applied to the reduction of the Indebtedness, and upon
payment in full of the Indebtedness, shall be applied to the performance of the Obligations, and
upon performance in full of the Obligations, shall be deemed to be a payment made by mistake and
shall be refunded to Grantor.
35, Receipt of COpy, Grantor acknowledges that it has received a true copy of this Deed
to Secure Debt.
36. Subordination to Priority Deed to Secure Debt. Grantor and Grantee hereby
acknowledge that a first priority deed to secure debt has been recorded in connection with the
Secured Property. During all times that such first priority deed to secure debt or other substituted
first priority deed to secure debt remains as an encumbrance against the Secured Property, Grantee
hereby agrees to subordinate all rights as to requirements, including but not limited to, escrows for
taxes, insurance proceeds, condemnation proceeds and payment of impositions, to the priority deed
to secure debt ternlS and provisions. Grantee acknowledges that to the extent the requirements are
less restrictive than those contained herein, if Grantor has satisfied the requirements of the priority
deed to secure debt, Grantor shall be deemed to have satisfied the requirements of this Deed to
Secure Debt. Further, in the event of a casualty or condemnation, all rights herein shall be
subordinated to the priority deed to secure debt and its tenns, including any rights which Grantee
has to require repayment of the loan instead of rebuilding of the Secured Property. Grantor and
Grantee hereby fmiher acknowledge that the first priority deed to secure may be replaced by
-25-
, 1.\57769,,1
.
.
.
Book 007401126 Augusta - Richmond County
2001022108 07/24/2001 14:36:29.00
another credit etlllCLnCement for the multifamily housing revenue bonds or constructionJpemlanent
lender, and Grantee hereby agrees to subordinate its interest herein,
[Remainder of Page Intentionally Left Blank]
-26-
1357769v 1
.
.
.
05/08/2001 1~: 54 ~ 4048738159
CAROLYN A ROWLAND
'\
PAGE 02/02
IN WITNESS WHEREOF, Grantor has caused this Deed to Secure Debt to be executed,
delivered and ackno'vledged under seal by its duly autborized officer as of the date first set forth
above.
Signed, sealed and d~livered
in the presence of:
GRANTOR:
G-HOPE, LoP., a
Georgia limited partnership
By:
CHP-G-Hope, LLC,
General Partner
(J 7 ~
Wit;Zr
a
13S7?69vl
MAY 08 2001 17:03
'J>~. fffJr-TN & 1
]J(2..'i.5 I )) ~I
-t~'
-27-
..... . \ 1.1 r I tI ~ f/~;"
,~,<", ",
~~,~~~ . _~~~.~::.!!ltio.. .~"";''''''''#"
....tc ." ".(o(I~ ~ 't t,. ':. t ,
}'-.~!:{:./k~ i!~ ~~< ~ ~ ,;.~.;.~f< '\
. . =-.1'1,. .~-~ ~; /:-~" l;;~' f) -:..
';'~r \$ e~~.~!;'J' ),,1 ·
~ 40.':; l~".w.-.}"" or::.O. ""~"$
""~... ' ,Q.O"..09.Cl'OOOGG '".~ i!
~";'jj. \:.' ~ ....'," II ~.Jo
.r'ii", _' i\""~.
" 'III!I\I\\"'~'
4048738169
'-' ;
PAGE. 02
.
.
.
1357769vl
.
~-~----- - --~--- --
Book 00740 1128 Augusta - Richmond County
2001022108 07/24/2001 14:36:29.00
DESCRIPTION OF LAND
Exhibit A
to Deed to Secure Debt
_.~~05~~~~_12 (FAX -.2:~37556 _____.._ .___ ...__HU9~INS & ALLEN
.
~ 005/005
..
"
File No.: R01-0253
'\
.
.
SCHEDULE C
(Descriptions)
ALL that certain piece, parcel of land, with Improvements thereon, situate, lying and being
In the State of Georgia, County of Richmond, former City of Augusta, on East Boundary
Street In the 85th G.M.D. and designated as Tax Map No. 48-3, Parcel 79, also known as
6.75 acres parcel of land on a plat prepared for Greene Street Town Homes and recorded
on Reel 576, page 928, and being more particularly described as follows:
Point of commencement (P.D.C.), commencing at a nail and cap at the point of Intersection
(P.I.) of East Boundary Street and Telfair Street. Thence on a bearing of N 66006'50" E for a
distance of 76.24' to a #4 RBF known as point of beginning (P.D.B.). Thence in a clockwise
direction along East Boundary Street, on a bearing of N 24059'14" E for a distance of
166.55 feet to a #4 rebar set. Thence along the property line of Luther McDaniel on a
bearing of S 63047'05" E for a distance of 100.00 feet to a #4 rebar fd. Thence continuing
along the property line of Ernest Smith Jr., Tract "c" on a bearing of S 67035'16" E for a
distance of 171.85 feet to a #3 rebar fd. Thence along the property line of Ernest Smith
Jr., Tract "C" ana bearing of N 27043'53" E for a distance of 171.73 feet to a 3/4" pinched
top iron pipe fd. thence along the property line of Ernest Smith Jr., Tract "c" on a bearing
of S 62016'07" E for a dIstance of 10.00 feet to a #4 rebar set. Thence along the property
line of Ernest Smith Jr., Tract"C" on a bearing of 27040'37" E for a distance of 75.32 feet to
a #4 rebar set. Thence along the property line of Ernest Smith Jr., Tract "e" on a bearing
of N 63020'30" W for a distance of 10.00 feet to a 1/2" pinched top Iron pipe fd. Thence
along the property line of Ernest Smith Jr., Tract "A" on a bearing of N 27039'53" E for a
distance of 185.82 feet to a #5 rebar fd. Thence along the property line of Jim Usry on a
. 0
bearing of S 4956'46" E for a distance of 168.55 feet to a Inasslble corner. Thence along
the property line of Mary Lawson and of Pamela Ham on a bearing of S 49056'00" E for a
distance of 308.6,7 feet to a #4 rebar set. Thence along the property line of Pamela E. Ham
on a bearing of S 27037'50" W for a distance of 472.64 feet to a #6 open end Iron pipe fd.
Thence along the property line of River Glenn Associates on a bearing of N 65038'44" W for
a distance of 731.13 feet to the poInt of beginnIng (P.O.B~).
FORM U-836 C (5/95)
ALTA COMMITMENT -1966
.
.
'"
~
II
Book 007401130 Augusta - Richmond County
2C101 0221 0807/24/2001 14:36:29.00
Exhibit B
to Deed to Secure Debt
.
PERMITTED ENCUMBRANCES
1. Deed to Secure Debt, Security Agreement, and Assignment of Leases and Rents to
SunTrust Bank dated as of May 1,2001, and recorded on or about May 10,2001 in the Richmond
County, Georgia real estate records.
2, Land Use Restriction Agreement dated as of May 1, 2001 and recorded on or about
May 10, 200 I in the Richmond County, Georgia real estate records,
1357769\'1
.
.
.
~
t
Debtor:
Secured Party:
J 357769" I
'.
"
- ----- ---
~
~-...
Book 00740:1131 Augusta - Richmond County
2001022108 07/24/2001 14:36:29.00
Exhibit C
to Deed to Secure Debt
INFORMATION REGARDING DEBTOR AND SECURED PARTY
G-Hope, L.P.
c/o Capitol Housing Partners, LLC
1261 Glenwood Avenue
Atlanta, Georgia 30316
Telecopy No.: (404) 719-0115
East Augusta Community Development Corporation
1011 12th Street
Augusta, Georgia 30911
Filedinth' ~
' Au IS office:
_ gusta . Rich
".-- - - -07/24/2001 14mond County
Elaine C J h .,16:29.00
, ,0 nson