EX-10.5






DEED TO SECURE DEBT NOTE




$6,000,000 December 30, 2003




FOR VALUE RECEIVED, GWINNETT PROFESSIONAL CENTER,
LTD., a Georgia limited partnership having its principal place of business at 601A
Professional Drive, Lawrenceville, Georgia 30045 (hereinafter referred to as “Borrower”),
promises to pay to the order of ARCHON FINANCIAL, L.P., a Delaware limited
partnership, at its principal place of business at 600 East Las Colinas
Boulevard, Suite 450, Irving, Texas 75039 (hereinafter referred to as
“Lender”), or at such place as the holder hereof may from tune to time designate in
writing, the principal sum of Six Million and No/100 Dollars ($6,000,000), in lawful money
of the United States of America, with interest thereon to be computed on the unpaid
principal balance from time to time outstanding at the Contract Rate (as hereinafter
defined), and to be paid in installments as provided herein:




1. Payment Terms. Borrower shall pay to Lender a payment of interest only for
the period from and including the first date on which principal is advanced to Borrower on
this Note to and including the last day of that same month, which amount will be reserved
and paid to Lender on the first date on which principal is advanced to Borrower on this
Note. Thereafter, Borrower shall pay to Lender a constant payment of $35,511.44 (such
amount hereinafter the “Monthly Payment”), commencing on February 1, 2004 and continuing on
the first day of each calendar month thereafter up to and including December 1, 2013. The
outstanding principal balance of this Note, together with all accrued but unpaid interest
thereon, shall be due and payable on January 1, 2014 or upon earlier maturity hereof
whether by acceleration or otherwise (the “Maturity Date”). Each such Monthly Payment shall
be applied to the payment of interest computed at the Contract Rate (as hereinafter
defined), and the balance shall be applied toward the reduction of the principal sum.
The Monthly Payment required hereunder is based on an assumed amortization schedule
of three hundred sixty (360) months (the “Amortization Period”). Interest on the principal
sum of this Note shall be calculated on the basis of the actual number of days
elapsed in the related interest accrual period over a three-hundred-sixty (360) day year.
The first interest accrual period hereunder shall commence on and Include the date that
principal is advanced hereunder and shall end on and include the last day of such calendar
month, unless principal is advanced on the last day of a month, in which case the first
interest accrual period shall consist of only such last day. Each interest accrual period
thereafter shall commence on the first day of each calendar month during the term of this
Note and shall end on and include the last day of the calendar month. All amounts due under
this Note shall be payable without setoff, counterclaim or any other deduction whatsoever.




2. Interest. The term “Contract Rate” as used in this Note means a rate of
five and eighty-eight one-hundredths percent (5.88%) per annum.




3. Security. This Note is evidence of that certain loan made by Lender to
Borrower contemporaneously herewith (the “Loan”). This Note is secured by (a) a Deed to
Secure Debt, Assignment of Rents, Security Agreement and Fixture Filing of even date
herewith in the amount of this Note given by Borrower for the use and benefit of Lender
covering the fee estate of Borrower in certain premises as more particularly described
therein (the “Security Deed”), (b) an Assignment of Leases and Rents of even date herewith
executed by Borrower in favor of Lender (the “Assignment of Leases”), and (c) the other
Loan Documents (as hereinafter defined). The term “Loan Documents” as used in this Note
means collectively this Note, the Security Deed, the Assignment of Leases and any and all
other documents securing, evidencing, or guaranteeing all or any portion of the Loan or
otherwise executed and/or delivered in connection with this Note and the Loan.




4. Late Charge. If any sum payable under this Note is not paid within five (5)
days of (and including) the date on which it is due, Borrower shall pay to Lender upon
demand an amount equal to the lesser of five percent (5%) of such unpaid sum or the maximum
amount permitted by applicable law in order to defray a portion of the expenses incurred by
Lender in handling and processing such delinquent payment and to compensate Lender for the
loss of the use of such delinquent payment, and such amount shall be secured by the Loan
Documents. If the day when a payment required under this Note is due is not a Business Day
(as hereinafter defined), then payment shall be due on the first Business Day thereafter.
The term “Business Day” shall mean a day other than (i) a Saturday or Sunday, or (ii) any
day on which banking and savings and loan institutions in New York are authorized or
obligated by law or executive order to be closed.




5. Default and Acceleration. The whole of the principal sum of this Note,
together with all interest accrued and unpaid thereon and all other sums due under the Loan
Documents (all such sums hereinafter collectively referred to as the “Debt”), or any
portion thereof, shall without notice become immediately due and payable at the option of
Lender if any payment required in this Note is not paid within five (5) days after the date
on which it is due or upon the happening of any other “Event of Default” (as defined In the
Security Deed). In the event that it should become necessary to employ counsel to collect
or enforce the Debt or to protect or foreclose the security therefore or to defend against
any claims asserted by Borrower arising from or related to the Loan Documents, Borrower
also shall pay on demand all such costs incurred by Lender, including reasonable attorneys’
fees and costs incurred for the services of counsel whether or not suit be brought.




6. Default Interest. Borrower does hereby agree that upon the occurrence of an
Event of Default (including upon the failure of Borrower to pay the Debt in full on the
Maturity Date), Lender shall be entitled to receive and Borrower shall pay interest on the
entire unpaid principal sum and any other amounts due at a rate (the “Default Rate”) equal
to the lesser of (a) the maximum rate permitted by applicable law, or (b) five percent (5%)
above the Contract Rate. The Default Rate shall be computed from the occurrence of the
Event of Default until the date Borrower cures the Event of Default and such cure is
accepted by Lender. This charge shall be added to the Debt and shall be secured by the
Security Deed. This paragraph, however, shall not be construed as an agreement or privilege
to extend the date of the payment of the Debt, nor as a waiver of any other right or remedy
accruing to Lender by reason of the occurrence of any Event of Default.




7. Defeasance. The principal balance of this Note may not be prepaid in whole
or in part (except with respect to the application of Involuntary Payments (as defined
below)) prior to the Maturity Date; provided, however, Borrower shall have the right and
option to release the “Property” (as defined in the Security Deed) from the lien of the
Security Deed in accordance with the terms and provisions set forth in the Security Deed
(“Defeasance”). Notwithstanding the foregoing sentence, Borrower shall have the privilege
to prepay the entire amount of the outstanding Debt on the first (1st) day of any of the
three (3) calendar months preceding the month in which the scheduled Maturity Date occurs
without Defeasance or the payment of the Yield Maintenance Premium (as defined in the
Security Deed) or any other premium or penalty. Notwithstanding the foregoing, if prior to
the scheduled Maturity Date and during the existence of any Event of Default, Borrower
shall tender payment (and such tender is made on any day other than on the first (1st) day
of any of the three (3) calendar months preceding the month in which the scheduled Maturity
Date occurs) of an amount sufficient to satisfy the Debt at any time prior to a sale of the
Property either through foreclosure or the exercise of the other remedies available to
Lender under the Security Deed, such tender by Borrower shall be deemed to be voluntary and
Borrower shall pay, in addition to the Debt, the greater of (a) the yield Maintenance
Premium, if any, that would be payable in connection with a Defeasance, or (b) three
percent (3%) of the unpaid principal balance of this Note. In addition to the foregoing,
Borrower shall not be required to pay any fee or consideration if, in accordance with the
terms and conditions of the Security Deed. Lender receives (i) insurance proceeds or other
payments as a result of fire or other casualties. or (ii) awards or other payments made in
any condemnation or eminent domain proceedings (collectively, “Involuntary Prepayments”),
and such Involuntary Prepayments are applied by Lender toward reduction of the Debt;
provided, however, if an Event of Default, or an event with notice and/or the passage of
time would constitute an Event of Default, exists, then the Borrower shall pay to the
Lender an additional amount equal to the greater of (A) the Yield Maintenance Premium, if
any, that would be required if such Involuntary Prepayment had been Defeased, or (B) three
percent (3%) of the Involuntary Prepayment. In the event that any such Involuntary
Prepayments are applied to the outstanding principal balance due under this Note, Lender
shall, upon written notice to Borrower, recalculate the Monthly Payment subsequently due
hereunder based on (i) the principal balance outstanding after application of any such
Involuntary Prepayment, (ii) the Remaining Amortization Period (hereinafter defined), and
(iii) the Contract Rate. As used herein, “Remaining Amortization Period” shall mean the
Amortization Period less the number of calendar months for which a Monthly Payment was made
hereunder on or prior to the date of the Involuntary Prepayment.




8. Savings Clause. It is expressly stipulated and agreed to be the intent of
Borrower and Lender at all times to comply with applicable state law or applicable United
States federal law (to the extent that United States federal law permits Lender to contract
for, charge, take, reserve, or receive a greater amount of interest than under state law)
and that this paragraph shall control every other covenant and agreement in this Note and
the other Loan Documents. If the applicable law (state or federal) is ever judicially
interpreted so as to render usurious any amount called for under this Note or under any of
the other Loan Documents, or contracted for, charged, taken, reserved, or received with
respect to the Debt, or if Lender’s exercise of the option to accelerate the Maturity Date,
or if any prepayment or the exercise of any Defeasance by Borrower results in Borrower
having paid any interest in excess of that permitted by applicable law, then it is Lender’s
express intent that all excess amounts theretofore collected by Lender shall be credited on
the principal balance of this Note and all other Debt and the provisions of this Note and
the other Loan Documents immediately be deemed reformed and the amounts thereafter
collectible hereunder and thereunder reduced, without the necessity of the execution of any
new documents, so as to comply with the applicable law, but so as to permit the recovery of
the fullest amount otherwise called for hereunder or thereunder. All sums paid or agreed to
be paid to Lender for the use, forbearance, or detention of the debt shall, to the extent
permitted by applicable law, be amortized, prorated, allocated, and spread throughout the
full stated term of the Debt until payment in full so that the rate or amount of interest
on account of the Debt does not exceed the maximum lawful rate from time to time in effect
and applicable to the Debt for so long as the Debt is outstanding. Notwithstanding anything
to the contrary contained herein or in any of the other Loan Documents, it is not the
intention of Lender to accelerate the maturity of any interest that has not accrued at the
time of such acceleration or to collect unearned interest at the time of such acceleration.




9. No Oral Change; Successors and Assigns; Liability. This Note may not be
modified, amended, waived, extended, changed, discharged or terminated orally or by any act
or failure to act on part of Borrower or Lender, but only by an agreement in writing signed
by the party against whom enforcement of any modification, amendment, waiver, extension,
change, discharge or termination is sought. Whenever used, the singular number shall
include the plural, the plural the singular, and the words “Lender” and “Borrower” shall
include their respective successors, assigns, heirs, executors and administrators. If
Borrower consists of more than one person or party, the obligations and liabilities of each
such person or party shall be joint and several.




10. Waivers. Except as specifically provided in the Loan Documents, Borrower
and any endorsers, sureties or guarantors hereof jointly and severally waive presentment
and demand for payment, notice of intent to accelerate maturity, notice of acceleration of
maturity, protest and notice of protest and non-payment, all applicable exemption rights,
valuation and appraisement, notice of demand, and all other notices in connection with the
delivery, acceptance, performance, default or enforcement of the payment of this Note and
the bringing of suit and diligence in taking any action to collect any sums owing hereunder
or in proceeding against any of the rights and collateral securing payment hereof. Borrower
and any surety, endorser or guarantor hereof agree (i) that the time for any payments
hereunder may be extended from time to time without notice and consent, (ii) to the
acceptance by Lender of further collateral, (iii) the release by Lender of any existing
collateral for the payment of this Note, (iv) to any and all renewals, waivers or
modifications that may be granted by Lender with respect to the payment or other provisions
of this Note, and/or (v) that additional borrowers, endorsers, guarantors or sureties may
become parties hereto all without notice to them and without in any manner affecting their
liability under or with respect to this Note. No extension of time for the payment of this
Note or any installment hereof shall affect the liability of Borrower under this Note or
any endorser or guarantor hereof even though the Borrower or such endorser or guarantor is
not a party to such agreement. Failure of Lender to exercise any of the options granted
herein to Lender upon the happening of one or more of the events giving rise to such
options shall not constitute a waiver of the right to exercise the same or any other option
at any subsequent time in respect to the same or any other event. The acceptance by Lender
of any payment hereunder that is less than payment in full of all amounts due and payable
at the time of such payment shall not constitute a waiver of the right to exercise any of
the options granted herein to Lender at that time or at any subsequent time or nullify any
prior exercise of any such option without the express written acknowledgment of the Lender.




11. Authority. Borrower (and the undersigned representative of Borrower, if
any) represents that Borrower has full power, authority and legal right to execute, deliver
and perform its obligations pursuant to this Note, the Security Deed and the other Loan
Documents and that this Note, the Security Deed and the other Loan Documents constitute
valid and binding obligations of Borrower.




12. Notices. All notices or other communications required or permitted to be
given pursuant hereto shall be given in the manner specified in the Security Deed directed
to the parties at their respective addresses as provided therein.




13. Exculpation. Subject to the qualifications below, Lender shall not enforce
the liability and obligation of Borrower to perform and observe the obligations contained
in this Note, the Security Deed or in any of the other Loan Documents by any action or
proceeding wherein a money judgment shall be sought against Borrower, except that Lender
may bring a foreclosure action, an action for specific performance or any other appropriate
action or proceeding to enable Lender to enforce and realize upon its interests under this
Note, the Security Deed and the other Loan Documents, or in the Property, the Rents (as
defined in the Security Deed), or any other collateral given to Lender pursuant to the Loan
Documents; provided, however, that, except as specifically provided herein,
any judgment in any such action or proceeding shall be enforceable against Borrower only to
the extent of Borrower’s interest in the Property, in the Rents and in any other collateral
given to Lender. By accepting this Note, the Security Deed and the other Loan Documents,
Lender agrees that it shall not except as otherwise herein provided. sue for, seek or
demand any deficiency judgment against Borrower in any such action or proceeding under or
by reason of or under or in connection with this Note, the Security Deed or the other Loan
Documents. The provisions of this paragraph shall not, however, (a) constitute a waiver,
release or Impairment of any obligation evidenced or secured by any of the Loan Documents;
(b) impair the right of Lender to name Borrower as a party defendant in any action or suit
for foreclosure and sale under the Security Deed; (c) affect the validity or enforceability
of any guaranty or indemnity made in connection with the Loan or any of the rights and
remedies of the Lender thereunder; (d) Impair the right of Lender to obtain the appointment
of a receiver; (e) impair the enforcement of the Assignment of Leases; or (f) constitute a
waiver of the right of Lender to enforce the liability and obligation of Borrower, by money
judgment or otherwise, to the extent of, but only to the extent of; any loss, damage, cost,
expense, liability, claim or other obligation Incurred by Lender (including attorneys’ fees
and costs reasonably incurred) arising out of or in connection with the following:




(i) fraud, maternal misrepresentation, gross negligence or willful misconduct by
Borrower or any of its partners (as partners), officers, principals, members, any
guarantor or any other person authorized to make statements or representations, or
act, on behalf of Borrower in connection with the Loan;




(ii) physical waste committed on the Property; damage to the Property as a result of
the intentional misconduct or gross negligence of Borrower or its Governing Entity
(as defined in the Security Deed), or any agent or employee of any such persons
acting w t h the scope of the agency or employment; or the removal of any portion of
the Properly in violation of the terms of the Loan Documents following an Event of
Default;




(iii) subject to any right to contest such matters, as provided in the Security Deed,
failure to pay any valid taxes (except to the extent, but only the extent, the entire
amount of the unpaid taxes had been paid by Borrower to Lender pursuant to
Paragraph 5 of the Security Deed), assessments, mechanic’s liens, material
men’s liens or other liens which could create liens on any portion of the Property
which would be superior to the lien or security title of the Security Deed or the
other Loan Documents, to the full extent of the amount claimed by any such lien
clamant;




(iv) a1l legal costs and expenses (including attorneys’ fees) reasonably incurred by
Lender in connection with ligation or other legal proceedings involving the
collection or enforcement of the Loan or preservation of Lender’s rights under the
Loan Documents, including any costs incurred y Lender arising from or relating to the
filing of a petition under the U.S. Bankruptcy Code by or against Borrower, other
than those customarily incurred by a Lender in realizing upon its lien in an
uncontested foreclosure sale after an undisputed default;




(v) the breach of any representation, warranty, covenant or indemnification provision
in that certain Environmental and Hazardous Substance Indemnification Agreement of
even date herewith given by Borrower to Lender or in the Security Deed concerning
environmental laws, hazardous substances or asbestos;




(vi) the misapplication or conversion by Borrower of (A) any Insurance proceeds paid
by reason of any loss, damage or destruction to the Property, (B) any awards or other
amounts received in connection with the condemnation of all or a portion of the
Property, or (C) any Rents following an Event of Default;




(vii) any security deposits or other refundable deposits collected with respect to
the Property which are not delivered to Lender upon a sale or foreclosure of the
Property or other action in lieu thereof, except to the extent any such security
deposits were applied in accordance with the terms and conditions of any of the
Leases (as defined in the Security Deed) prior to the occurrence of the Event of
Default that gave rise to such sale or foreclosure or action in Lieu thereof;




(viii) failure to maintain any Policies required under Paragraph 2 of the Security
Deed, or to pay or provide the amount of any insurance deductible, to the extent of
the applicable deductible, following a Casualty (as defined in the Security Deed) or
other Insured event; or




(ix) any breach of the representations, covenants and agreements of Section l(i) of
the Security Deed.




Notwithstanding anything to the contrary In this Note or any of the Loan Documents,
(A) Lender shall not be deemed to have waived any right which Lender may have under
Section5 06(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file
a claim for the full amount of the Debt secured by the Security Deed or to require that all
collateral shall continue to secure all of the Debt owing to Lender in accordance with the
Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i)
Borrower fails to pay the first full monthly payment of principal and interest under this
Note when due; (ii) the Property or any part thereof becomes an asset in a voluntary
bankruptcy or insolvency proceeding under the U.S. Bankruptcy Code; (iii) Borrower falls to
provide any of the financial information required pursuant to Paragraph 17 of the Security
Deed within thirty( 30) days after the date upon which such financial information is due
and Lender has given at least fifteen (15) days prior written notice to Borrower of such
failure by Borrower to provide such information, provided that if such failure to provide
such financial information is not reasonably susceptible of cure within such fifteen (15)
day period, then Borrower may be permitted up to an additional fifteen (15) days within
which to provide such financial information as long as Borrower diligently and continuously
pursues such cure; (iv) Borrower fails to maintain its status as a single purpose entity as
required by, and in accordance with the terms and provisions of the Security deed; (v)
Borrower fails to obtain Lender’s prior written consent to any subordinate financing or
other voluntary lien encumbering the Property or any Interests in Borrower; or (vi)
Borrower fails to obtain Lender’s prior written consent to any assignment, transfer, or
conveyance of the Property or any interest therein as required by the Security Deed.




14. WAIVER OF JURY TRIAL. BORROWER HEREBY AGREES NOT TO ELECT A TRIAL BY JURY
OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO RIAL BY JURY FULLY TO THE
EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE LOAN DOCUMENTS,
OR AND CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF
RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER, AND IS INTENDED TO
ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH
IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER.




15. Transfer. Lender shall have the unrestricted right at any time or from
time to time to sell this Note and the loan evidenced by this Note and the Loan Documents
or participation interests therein. Borrower shall execute, acknowledge and deliver any and
all instruments requested by Lender to satisfy such purchasers or participants that the
unpaid indebtednesses evidenced by this Note is outstanding upon the terms and provisions
set out in this Note and the other Loan Documents. To the extent, if any, specified in such
assignment or participation, such assignee(s) or participant(s) shall have the rights and
benefits with respect to this Note and the other Loan Documents as such assignee(s) or
participant(s) would have if they were the Lender hereunder.




16. APPLICABLE LAW; JURISDICTION AND VENUE. THIS NOTE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE LAND (AS DEFINED IN THE
SECURITY DEED) IS LOCATED AND THE APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
BORROWER, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND
VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, (A) SUBMITS TO PERSONAL
JURISDICTION IN THE STATE WHERE THE LAND IS LOCATED OVER ANY SUIT, ACTION OR PROCEEDING BY
ANY PERSON ARISING FROM OR RELATING TO THIS NOTE, (B) AGREES THAT ANY SUCH ACTION, SUIT OR
PROCEEDING MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SITTING
IN EITHER THE CITY OR THE COUNTY WHERE THE LAND IS LOCATED, (C) SUBMITS TO THE JURISDICTION
OF SUCH COURTS, AND (D) TO THE FULLEST EXTENT PERMITTED BY LAW, AGREES THAT BORROWER WILL
NOT BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM AND BORROWER FURTHER CONSENTS
AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT,
ACTION OR PROCEEDING BY REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO BORROWER AT
THE ADDRESS FOR NOTICES DESCRIBED ON THE FIRST PAGE HEREOF, AND CONSENTS AND AGREES THAT
SUCH SERVICE SHALL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING
HEREIN SHALL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER
PERMITTED BY LAW).




17. State Specific Provision.




	 	(a)	 	Time is of the essence in this Note.






	 	(b)	 	To the extent that any provision of this Note or
any other Loan Document provides for interest, at the Contract Rate or
the Default Rate, to be imposed on unpaid interest, such unpaid interest
shall be deemed to be principal.




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Borrower has duly executed this Note to be effective as of the date first above written.




BORROWER:




GWINNETT PROFESSIONAL CENTER, LTD.


a Georgia limited partnership




By: Gwinnett Medical Associates, LLP




a Georgia limited liability partnership


its general partner



	 	 	 
	by:

	 	/s/ H Tauber
	
 
	 	 
	
 
	 	Harvey B. Tauber
	
 
	 	 
	
 
	 	Managing Partner
	
 
	 	 
	by:

	 	/s/ Miles H Mason, III
	
 
	 	 
	
 
	 	Miles H. Mason, III
	
 
	 	 
	
 
	 	Managing Partner
	
 
	 	 






Signature Page to Deed to Secure Debt Note





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ALLONGE




This Allonge is made to that certain Deed to Secure Debt Note dated as of Dec
30, 2003 executed by Gwinnett Professional Center, Ltd., a Georgia limited partnership and made
payable to the order of Archon Financial, L.P., a Delaware limited partnership.



Pay to the order of ,      without recourse or



warranty.



Dated:      , 200     .




ARCHON FINANCIAL, L.P.,


a Delaware limited partnership



	 	 	 
	By:

	 	ARCHON FINANCLAL, LLC,

a Delaware limited liability company,

its General Partner ,
	
 
	 	By: /s/ Rod Reppe
	
 
	 	 
	
 
	 	Name: Rod Reppe







	 	 	Title: Vice President/Regional Manager






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