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HomeMy WebLinkAboutSecure Debt Augusta Richmond GA DOCUMENT NAME: ~ Ye.. Oem DOCUMENT TYPE: neeo YEAR: 0 Q BOX NUMBER: \5 FILE NUMBER: \'5C\ ~ <6 NUMBER OF PAGES: ?:!-\ -- --------- " ~, .1 Book 00772: 1479 Augusta-- Richmond County 200200360001/31/20021456:05.00 $5.00 ASSIGNMENT '1iffiimflllflIfffllflfllffillffiiifllllnmlffllfnmfil 2002003600 Augusta - Richmond County " After Recording Return To: Jeffrey C. Adams, Esq. Arnall Golden Gregory LLP 1201 West Peachtree Street 2800 One Atlantic Center Atlanta, Georgia 30309-3450 ASSIGNMENT OF DEED TO SECURE DEBT FOR VALUE RECEIVED 30901 Development Corporation, Inc., a Georgia non-profit corporation ("Assignor"), hereby grants, 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 January ~, 2002 (the "Security Deed") from Linden Square, LP, a Georgia limited partnership to Assignor, as recorded in Deed Book '7'l~ ' Page ~YY'~ /V7i , on 2002 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. [Signatures follow on next page] -1- 142743Ov1 .----~--------~-- , , -~ Book 00772:1480 AugusJa - Rich.mond County 2002003600 01/31/2002 14:56:05.00 IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment to be executed as of J'(w)UCJ.r~ .3fL,2002. ASSIGNOR: Signed, sealed and delivered in the presence of: 30901 DEVELOPMENT CORPORATION, INe. L{~ ~ .: ~&d Puhrte- ~\"\,,,,"rrrr"""'l f #'''' S~ G. J./~~ o~~f~'''''''~~~~ [N ~. D '. ::::-..~ "", ~ : ~ EXPIRES ...., - . . :: Mycommi~*eGm/iiGIA }*~ ~ "'~ MAY 16 2003~,: g % ...~~ ~~:.. $ ;:;, cP...... Of/FE ,..() "r~;;t ;:;, "4>'. 'I. \J.' ~ ;;t ~'lF~"."""'O<0 ~'" i'1111111 OF (; 't: \\\~,,, 1111111111 JmJlll~~'" [Signatures continued on next page] -2- 1427430vl " [NOTARY ~f4] My commission expires: 81~CI)'- 142743Ov1 ~-- .------- - .----.---- ------- --- ~ - --..." -~ . Book 00772:1481 Augusta - Richmond County 2002003600 01 n 1/2002 14: 56: 05.00 ASSIGNEE: AUGUSTA, GEORGIA 11/V.1y. ~ame: Title: I. -:. Attest: /), ~. Clerk -3- ,. I Book 00772:1482 August~ - Rich(llond County 2002003600 01/31/2002 14:56:05.00 .. Exhibit "A" Legal Description All that tract or parcel of land lying and being in the City of Augusta, Georgia, in the 85th G.M.D. and being more particularly described as follows: Commencing at a nail and cap at the intersection of the centerline of Linden Street (50 foot right- of-way) and the centerline of Poplar Street (50 foot right-of-way); thence on a bearing of North 15 degrees 57 minutes 52 seconds East a distance of 128.85 feet to a #4 rebar set and the True Point of Beginning; from the True Point of Beginning as thus established, thence nm North 60 degrees 00 minutes 00 seconds West a distance of 324.04 feet to a #4 rebar set on the southeasterly right-of-way line of Hunter Street (50 foot right-of-way); thence along said right- of-way run North 26 degrees 16 minutes 25 seconds East a distance of 249.63 feet to a #4 rebar set; thence leaving said right-of-way run South 60 degrees 17 minutes 25 seconds East a distance of 89.99 feet to a #4 rebar set; thence run North 26 degrees 16 minutes 49 seconds East a distance of 100.18 feet to a #4 rebar set; thence run North 60 degrees 17 minutes 25 seconds West a distance of8.38 feet to a #4 rebar set; thence run North 26 degrees 16 minutes 25 seconds East a distance of 50.09 feet to a #4 rebar set on the westerly right-of-way line of Roulette Lane (25 foot right-of-way); thence along said right-of-way run South 60 degrees 17 minutes 25 seconds East a distance of 248.4 7 feet to a #4 rebar set at the intersection of the westerly right- of-way line of Roulette Lane with the nOliherly right-of-way line of Linden Street; thence along said right-of-way of Linden Street run South 27 degrees 09 minutes 09 seconds West a distance of 40 1.23 feet to a #4 rebar set and the True Point of Beginning. Said tract being 2.70 acres as shown on that certain "ALTAi ACSM - As Built Survey prepared for Linden Square, LP, SunTrust Bank, its successors and assigns as their interests may appear and Attorney's Title Insurance Fund, Inc.", prepared by Tony L. Carr, Sr. & Associates, bearing the seal of Tony L. Carr, Sr., GRLS #1998, dated October 26, 2001, last revised January 29, 2002. _..---~ Filed in this office Augusta - Richmond County 01/31 ('1(102 1456:0500 Elaine C Johnson ,,- #876350 v3 - Linden/legal oj'''Y . Book 00772: 1449 Augusta - Richmond County 2002003599 01/31f2002 14:56:04.03 $1268.00 SECURITY DEE.~__. i iiiiii iii~ ii~i iiiii ~iii iiiii ii!ii ~iii iiili iilll ~~ \111 2002003599 Augusta - Richmond County Intangible Tax: $1200.00 After recording return to: Jeffrey C. Adams, Esq. Arnall Golden Gregory LLP 1201 West Peachtree Street 2800 One Atlantic Center Atlanta, Georgia 30309 SECOND PRIORITY DEED TO SECURE DEBT, SECURITY AGREEMENT AND ASSIGNMENT OF LEASES AND RENTS Dated as ofJanuary~002 between Linden Square, LP, a Georgia limited partnership ("Grantor") and 30901 Development Corporation, Inc., a Georgia non-profit corporation ("Grantee") LOCATION OF SECURED PROPERTY 85th G.M.D., Augusta, Richmond County, Georgia THIS INSTRUMENT CONSTITUTES A "CONSTRUCTION MORTGAGE" AS THAT TERM IS DEFINED AND DESCRIBED IN SECTION 9-313(l)(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. 1 427395v2 i Book 00772:1450 Augusta - Richmond County 2002003599 01/31/2002 14:56:04.03 SECOND PRIORITY DEED TO SECURE DEBT, SECURITY AGREEMENT AND ASSIGNMENT OF LEASES AND RENTS THIS SECOND PRIORITY DEED TO SECURE DEBT, SECURITY AGREEMENT AND ASSIGN1~:P2~T OF LEASES AND RENTS (this "Deed to Secure Debt") is entered into as of January ~ 2002, by Linden Square, LP, a Georgia limited partnership (the "Grantor"), in favor of 30901 Development Corporation, Inc., a Georgia non-profit corpor~~n its capacity as the lender (the "Grantee"), under that certain Promissory Note dated January ,2002, from Grantor in the principal sum of Four Hundred Thousand and 00/100 Dollars ($400,000.00) (the "Loan"). W!TNE~~ETH: WHEREAS, Grantee has agreed to provide a loan to Grantor in the amount of Four Hundred Thousand and 00/100 Dollars ($400,000.00) (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 construction of a 48 unit multi-family housing development located in the 85th G.M.D., Augusta, Richmond County, Georgia (the "Project"); and WHEREAS, said Loan is evidenced by that certain Promissory Note dated January~ 2002, in the principal sum of Four Hundred Thousand and 00/1 00 Dollars ($400,000.00), 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 acknow~dged 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 appertaining to the use and enjoyment of said land, including, but without limiting 1427395v2 (. Book 00772:1451 Augusta - Rich(T1ond Cpunty 2002003599 01/31/2002 14:56:04.03 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 that will comprise the Project to be constructed on the Land (such 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 power 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 menti<:med 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 permits, including extension, renewal and modification 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, specifications, 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 materials, supplies, and equipment located on or about, delivered to and intended to -2- 1 427395v2 r Book 00772:1452 Augusta - Richmond County 2002003599 01/31/2002 14:56:04.03 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 part thereof; offers, bids, contracts, agreements, or purchase orders executed by or entered 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; 8. 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, modifications, 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; 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; 10. 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 furnishing utility or other services and other similar rights now or hereafter benefiting the Real Estate or any portion thereof or appertaining thereto; 11. all of Grantor's right, title and interest in, to and under all leases, subleases, under1ettings, 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, modifications, 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) unearned 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, including, but without limiting the generality of the foregoing, proceeds of casualty -3- 1427395v2 Book 00772: 1453 Augusta ~ Richm9nd County 2002003599 01/31/2002 14:56:04.03 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 A wards, 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 Awards. Grantor hereby assigns to Grantee, and Grantee is hereby authorized to collect and receive, all Insurance Proceeds and Awards to the extent of (x) the entire amount of the Indebtedness then outstanding and (y) attorneys' fees, costs and disbursements incurred 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 confirm 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 appurtenances to, the Real Estate, and in each such case, the foregoing shall be deemed a part of the Real Estate and shall become subjea+- 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 Property 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 IN FEE SIMPLE 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, and should Grantor perform all covenants contained herein in a timely manner, then this Deed to -4- 1427395v2 Book 00772:1454 Augusta - .Richmofld County 200200359901/31/2002 14:56:04.03 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 itself 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 lien on and security interest in the Secured Property, subject only to the exceptions to title particularly described on Exhibit B annexed hereto and made a part hereof (the "Permitted 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 confirm 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: 1) 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 obligation 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- 1427395v2 3. Requirements; Proper Care and Use. Book 00772:1455 Augusta - Richmond County 2002003599 01/31/2002 14:56:04.03 (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 Governmental 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 Governmental Authority or such longer period as may be permitted under the terms 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 performed, 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) except for the demolition of the existing improvements located on the Land as of the date hereof, not remove, demolish or materially alter any of the subsequently constructed 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 permit any nuisance to exist on the Real Estate or any portion thereof, and (ix) permit Grantee and its agents, at reasonable times and with notice to enter upon the Real Estate for the purpose of inspecting and appraising the Real Estate or any portion thereof. Grantee acknowledges th2rt portions of the Real Estate shall be demolished or altered pursuant to the plans and specifications for the construction of the Buildings. (c) Grantor shall not by any act or omISSIOn permit any building or other improvement located on any property 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- 1427395v2 4. Taxes on Secured Property or Grantee. Book 00772:1456 Augusta - Richmond County 2002003599 01/31/2002 14:56:04.03 (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- J 427395v2 '. 5. Payment of Impositions. Book 00772: 1457 Augusta - Richmond County 2002003599 01/31/2002 14:56:04.03 (a) Subject to the provisions of Section 11 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 he 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 Grantee, on the first day of each month from and after the date of such request, an amount equal to one-twelfth (l/12th) of (a) the annual 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 permitted by law, the sums deposited pursuant to this Section Q shall bear no interest and may be commingled with other funds of Grantee. Upon an assigrunent -8- 1427395\'2 Book 00772:1458 Augusta - Richmond County 2002003599 01/31/2002 14:56:04.03 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 eyery transfer of such deposits to a new 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, such insurance policies as reasonably required, upon notice by Grantee. (b) All Insurance Proceeds paid to Grantee shall be applied to Indebtedness or used for repair, replacement or restoration, as determined 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 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 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 destruction of, or injury to, the Buildings or the Fixtures or any portion thereof by fue 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 unearned premiums. 8. CondemnationlEminent 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 of, the Secured Property caused in any manner by any Governmental 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- I 427395v2 Book 00772:1459 Augusta - Richmond County 2002003599 01/31/2002 14:56:04.03 and under the Credit Agreement in accordance with the provisions of this Deed to Secure Debt, the Credit Agreement and the applicable provisions of the other Security Instruments. If, prior to the receipt by Grantee of any Award, 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 terms hereof; or (3) (i) except for the equity bridge loan and Third Priority Deed to Secure Debt from Guarantor to SunTrust, obtain any new loan which is secured by the Secured Property or any portion 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 Permitted Encumbrances, otherwise create, grant, permit 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 Permitted 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. 11. 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 Impositi9n or the validity of the claims of any mechanics, laborers, subcontractors, contractors or materialmen (hereinafter referred to as "Contractor's Claims"). -10- 1427395v2 12. Leases. Book 00772:1460 Augusta - Richmond County 2002003599 01/31/2002 14 :56 :04.03 (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 performed, (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 with 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, primarily, on a parity with the Secured Property, and not secondarily, as further security for the payment of the Indebtedness and the performance of the Obligations, the Leases and the Rents. Nothing contained in this Section 12 shall be construed to bind Grantee to the performance of any of the terms, 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 all 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 performance 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 perform 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 performed 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 irrevocable 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- 1427395v2 Book 00772:1461 Augusta - Richmond County 2002003599 01/31/2002 14:56:04.03 continuance thereof, it will not exercise the rights granted in the immediately preceding 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 failure 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) [Intentionally left blank.] (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 liabilities and all other deficiencies, fines, penalties, or expenses which may be incurred by or asserted against or involve any Indemnified Person in any and all actions, suits, proceedings (including investigations or inquiries) or claims suffered or incurred 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 construction or equipment), whether or not the same originates or emanates from the Secured Property or any contiguous real estate, including any loss of value of the Secured Property as a -12- 1 427395v2 Book 00772:1462 Augusta ~ Richmond County 2002003599 01/31/2002 14:56:04.03 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 modification costs incurred to permit continued or resumed normal 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 shall 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 l3(c) shall apply whether or not any such Indemnified Person is a party 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 termination of the Crecht 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 Security Instruments and, in any event, otherwise shall comply with the provisions set forth in Section 4 hereof. 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 -13- 1427395v2 ~ Book 00772:1463 Augusta - Richmond County 2002003599 01/31/2002 14:56:04.03 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 party, 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 of 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 incurred) (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 o(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. Intentionallv 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 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: -14- 1427395v2 Book 00772:1464 Augusta - Richmond County 200200359901/31/200214:56:04.03 (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 incurred. (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 performance 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 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. -15- 1 427395v2 Book 00772:1465 Augusta -' Richmond County 2002003599 01/31/2002 14:56:04.03 (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 Propertx may be sold for cash or upon credit in one or more parcels. (7) Grantee may, with or without entry, to the extent permitted 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 Instruments. (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 trustee, 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 trustee, receiver, liquidator or conservator, and Grantor consents to any such appointment. (11) Grantee may payor perform any default in the payment, performance or observance of any term, 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 performing or observing any such defaulted term, covenant or condition without thereby becoming liable to Grantor or any person in possession holding under Grantor. -16- 1427395v2 Book 00772:1466 Augusta - Richmond County 200200359901/31/2002.14:56:04.03 (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 Instruments. (b) If an Event of Default shall have occurred, Grantee, at its option, may sell the Secured Property 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 advertised 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 by law for collection of the indebtedness secured hereby and shall not be exhausted by one exercise thereof but may be exercised until full payment of all 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 appointetl 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 such 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- 1427395v2 Book 00772:1467 Augusta - Richmond County 2002003599 01/31/2002 14:56:04.03 part thereof, or 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 asserted 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 harmless 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 connection 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 permitted 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 abandonm~nt 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 a.c.G.A. 944-14-85 to claim or assert that the Indebtedness has been reinstated in accordance with its terms 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- 1427395v2 Book 00772:1468 Augusta - Richmor;ld County 2002003599 01/31/2002 14:56:04.03 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 Unifonn 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 MAY BE 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 1 of this Deed to Secure Debt. Notwithstanding the filing of a financing statement covering any of the Secured Property in the records normally 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 permitted 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 ol"-agency thereof, must be filed in the Uniform Commercial Code records. Pursuant to the provisions of the UnifoID1 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 determine, 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 Warranties. Grantor represents and warrants that: (a) 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 (b) Grantor is a business and commercial 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. -19- 1427395v2 Book 00772:1469 Augusta - Richmond County 2002003599 01/31/2002 14:56:04.03 23. No Waivers, Etc. A failure by Grantee to insist upon the strict performance 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 terms, 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 terms, 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 performance 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 permitted by law: (a) Grantor hereby waives all errors and imperfections in any proceedings instituted by Grantee under this Deed to Secure Debt or any other Security Instruments 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 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 -20- 1427395v2 Book 00772: 1470 Augusta - Richmond County 2002003599 01/31/2002 14:56:04.03 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 W AlVE, 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 THElR 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. WAIVER 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 OTHERWISE 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 (INCLUDING, WITHOUT LIMITATION, THE FIFTH AND FOURTEENTH AMENDMENTS THEREOF), THE VARIOUS PROVISIONS OF THE CONSTITUTIONS FOR THE SEVERAL STATES, OR BY REASON OF ANY OTHER APPLICABLE LAW, (1) TO NOTICE AND TO JUDICIAL HEARlNG 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, VALUATION, STAY, EXTENSION, HOMESTEAD, EXEMPTION OR REDEMPTION LAWS; (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 WITH COUNSEL OF GRANTOR'S CHOICE PRIOR TO EXECUTING THIS INSTRUMENT; AND (D) ACKNOWLEDGES THAT ALL W AlVERS OF THE AFORESAID RIGHTS OF GRANTOR HAVE BEEN MADE KNOWINGLY, INTENTIONALLY AND WILLINGLY BY GRANTOR AS PART OF A BARGAINED FOR LOAN TRANSACTION AND THAT THIS INSTRUMENT IS VALID AND ENFORCEABLE BY THE AUTHORITY AGAINST GRANTOR IN ACCORDANCE WITH ALL THE TERMS AND CONDITIONS HEREOF. -21- 1 427395v2 Book 00772:1471 Augusta - Richmond County 2002003599 01/31/2002 14:56:04.03 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: t;'LJ 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 Secured Property other than that of mortgagee or secured party. 30. Notices. All notices and other communications under this Deed to Secure Debt shall be in writing and shall be deemed to have been given five (5) days after deposit in the mail, designated as certified mail, return receipt requested, post-prepaid, or one (1) day after being entrusted to a reputable commercial overnight delivery service, or when delivered to the telegraph office or sent out by telex or telecopy addressed to the party to which such notice is directed at its address determined as provided in this Section 29. All notices and other communications under this Deed to Secure Debt shall be given to the parties hereto at the following addresses: If to the Grantor, to it at: Linden Square, LP 1261 Glenwood Avenue Atlanta, Georgia 30316 Attn: Breck Kean CDC Linden Square, L.L.C. c/o SunTrust Bank 50 Hurt Plaza Suite 1350 Mai1code 243 Atlanta, Georgia 30302 Attn: Charice Heywood If to the Grantee, to it at: 30901 Development Corporation, Inc. 1446 Linden Street Augusta, Georgia 30801 Attn: Francine Cayruth -22- 1427395v2 . " With a copy to: Book 00772:1472 A'Jgusta - Richmond County 200200359901/31/2002 14:56:04.03 Harry Revell, Esq. Burnside, Wall, Daniel, Ellison & Revell 4554 Greene Street Augusta, Georgia 30901 31. Grantee'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 performed and satisfied, for the purpose of carrying out the terms 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 desirable 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: (1) 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 terms of this Deed to Secure Debt and to pay all or any part of the l'l'emiums therefor and the costs thereof; 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 Secured Property; (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 Property; (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 -23- 1427395v2 . <> Book 00772:1473 Augusta - Richmond County 2002003599 01/31/2002 14:56:04.03 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 eff~ct 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 permitted 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 sublessees of any of the Se- cured Property 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 determining 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, terms, covenants and/or 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 permitted to perform under this Deed to Secure Debt, the Credit Agreement or any other -24- 1427395\'2 .. 4' l' .. Book 00772:1474 Augusta - Richmond C<?unty 2002003599 01/31/2002 14:56:04.03 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 tlVs 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 in favor of SunTrust Bank 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 terms and provisions. Granteeacknowledges 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 terms, including any rights which Grantee has to require repayment of the loan instead of rebuilding of the Secured Property. Grantor and Grantee hereby further acknowledge that the first priority deed to secure debt may be replaced by another construction/permanent lender, and Grantee hereby agrees to subordinate its interest herein. [Signatures on Following Page] -25- 1427395v2 ., .1- . Book 00772: 1475 Augusta - Richmond County 2002003599 01/31/2002 14:56:04.03 IN WITNESS WHEREOF, Grantor has caused this Deed to Secure Debt to be executed, delivered and acknowledged as of the date first set forth above. GRANTOR: ,. Signed, sealed and delivered in the presence of: Linden Square, LP, a Georgia limited partnership By: CHP - Linden, LLC, Its: General Partner 4lk~~ Witness --. By: 30901 - Linden, Inc. ~~ : C 2/ \~ Nota ublic My Commission Expires: ~~llf- 2(JJJ cJfA. ~~~\I~"'"'",1. [N ~~~l~o~~ # ~~.~'l PlJ;;..Z"~~ :::;~. 0 ~.(p 0;:. ~ /~ EXPIRES \ % ~*~ GEORGIA E*~ ~ \0 MAY 16 2003 1::/ ff '='.~ ~+. 2: % <.r;:..:.s>O/(EE cq..'~~ ~ 'l /.4 '. . <)..v " /,z -ih......... c..1()'" ," "/ <..- 0 F G,- \' /////1 \\\\\' 1111i1iI/IIIII\I\\\\\ 1427395v2 . Book 00772:1476 Augusta - Richmond County 2002003599 01/31/2002 14 :56 :04.03 Exhibit "A" Legal Description All that tract or parcel of land lying and being in the City of Augusta, Georgia, in the 85th G.M.D. and being more particularly described as follows: Commencing at a nail and cap at the intersection of the centerline of Linden Street (50 foot right- of-way) and the centerline of Poplar Street (50 foot right-of-way); thence on a bearing of North 15 degrees 57 minutes 52 seconds East a distance of 128.85 feet to a #4 rebar set and the True Point of Beginning; from the True Point of Beginning as thus established, thence run North 60 degrees 00 minutes 00 seconds West a distance of 324.04 feet to a #4 rebar set on the southeasterly right-of-way line of Hunter Street (50 foot right-of-way); thence along said right- of-way run North 26 degrees 16 minutes 25 seconds East a distance of 249.63 feet to a #4 rebar set; thence leaving said right-of-way run South 60 degrees 17 minutes 25 seconds East a distance of 89.99 feet to a #4 rebar set; thence run North 26 degrees 16 minutes 49 seconds East a distance of 100.18 feet to a #4 rebar set; thence run North 60 degrees 17 minutes 25 seconds West a distance of 8.38 feet to a #4 rebar set; thence run North 26 degrees 16 minutes 25 seconds East a distance of 50.09 feet to a #4 rebar set on the westerly right-of-way line of Roulette Lane (25 foot right-of-way); thence along said right-of-way run South 60 degrees 17 minutes 25 seconds East a distance of 248.47 feet to a #4 rebar set at the intersection of the westerly right- of-way line of Roulette Lane with the northerly right-of-way line of Linden Street; thence along said right-of-way of Linden Street run South 27 degrees 09 minutes 09 seconds West a distance of 401.23 feet to a #4 rebar set and the True Point of Beginning. Said traGt being 2.70 acres as shown on that certain "ALTA/ACSM - As Built Survey prepared for Linden Square, LP, SunTrust Bank, its successors and assigns as their interests may appear and Attorney's Title Insurance Fund, Inc.", prepared by Tony L. Can, Sr. & Associates, bearing the seal of Tony L. Can, Sr., GRLS #1998, dated October 26, 2001, last revised January 29, 2002. #876350 v3 - Linden/legal ., ~... . Book 00772:1477 Augusta - Richmond County 2002003599 01/31/2002 14:56:04.03 Exhibit "B" Pennitted Encumbrances I. Power Pole and Power Line Easement to Georgia Power as shown on that certain "ALTNACSM - As Built Survey prepared for Linden Square, LP, SunTrust Bank, its successors and assigns as their interests may appear and Attorney's Title Insurance Fund, Inc.", prepared by Tony L. Carr, Sr. & Associates, bearing the seal of Tony L. Carr, Sr., GRLS #1998, dated October 26,2001, last revised January 29,2002. 2. Underground utilities as shown on above-referenced survey. 3. Taxes for the year 2002, and subsequent years, which are a lien not yet due and payable. 4. Deed to Secure Debt, Assignment of Leases and Rents and Security Agreement dated as of January --3L, 2002 from Linden Square, LP in favor of SunTrust Bank and recorded in the real estate records of Richmond County, Georgia at Deed Book 7'72, Page /Cf/7- 1f/K3 5. UCC Financing Statement showing Linden Square, LP as debtor and SunTrust Bank as secured party recorded at Deed Book 7'7:? , Page /Wy-#yg aforesaid records. 6. UCC Financing Statement showing Linden Square, LP as debtor and SunTrust Bank as secured party recorded in the UCC records of Richmond County Georgia as Instrument # ~- c2~~ - t2~.f:j' #878771 v I - Linden/pcml ene ~ ..'" . Debtor: Secured Party: " 1427395v2 Book 00772:1478 Augusta - Richmond County 200200359901/31/2002 14:56:04.03 Exhibit C to Deed to Secure Debt INFORMATION REGARDING DEBTOR AND SECURED PARTY Linden Square, LP 1261 Glenwood Avenue Atlanta, GA 30316 Attn: Breck Kean 30901 Development Corporation, Inc. 1446 Linden Street Augusta, GA 30801 Attn: Francine Cayruth Filed in this office: Augusta - Richmond County 01/31/200214:56:04.03 Elaine C. Johnson