Exhibit
10.476


 


	
   

  	
  DOC# 001253

  FILED IN OFFICE

  01/10/2003

  08:25:46AM

  BK:05595 PG:0142

  JUDITH A. LEWIS

  CLERK OF

  SUPERIOR COURT

  HENRY COUNTY, GA

  



 


	
  Return to:

  PIEDMONT TITLE
  INSURANCE AGENCY, INC.

  Attention: Barbara H.
  Morgan

  150 East Ponce de Leon
  Avenue, Suite 330

  Decatur, GA 30030

  (404) 377-6464

  	
  Henry Towne Center

  LOAN NO.
  50-2753516

  



 




 





 


HENRY TOWN CENTER,
LLC, ALPHA SEVEN, LLC, ELLISTON HENRY TOWN CENTER,


LLC, OWEN HENRY
TOWN CENTER, LLC, DSCONGDONA, LLC, JWCONGDONA, LLC,


KCVANSTORYA, LLC,
ALCONGDONA, LLC, SCTERRYA, LLC, JRCONGDON,JR.A, LLC,


SPENCE HENRY TOWN
CENTER, LLC, JAY HENRY TOWN CENTER, LLC,


together, jointly
and severally, as Grantor


 


to


 


WACHOVIA BANK,
NATIONAL ASSOCIATION


as Grantee


 










 


DEED TO SECURE
DEBT AND SECURITY AGREEMENT


 










 


Dated as of January 8, 2003


 


PREPARED BY AND UPON RECORDATION RETURN TO:


 


	
   

  	
  Return to:

  PIEDMONT TITLE
  INSURANCE AGENCY, INC.

  Attention: Isabel M.
  Garcia, Esq.

  150 East Ponce de Leon
  Avenue, Suite 330

  Decatur, GA 30030

  (404) 377-6464

  
	
   

  	
   

  
	
   

  	
   

  	
  GEORGIA INTANGIBLE TAX

  HENRY COUNTY

  SUPERIOR COURT



  JAN 09 2003

   

  PAID $ 25,000.00

  
	
   

  	
   

  	
  /s/ [ILLEGIBLE]

  
	
   

  	
   

  	
  CLERK OF SUPERIOR COURT

  





 





 





















 


TABLE OF CONTENTS


 


	
  ARTICLE I

  	
  COVENANTS OF GRANTOR

  	
   

  
	
  1.1

  	
  Warranties of Grantor

  	
   

  
	
  1.2

  	
  Defense of Title

  	
   

  
	
  1.3

  	
  Performance of
  Obligations

  	
   

  
	
  1.4

  	
  Insurance

  	
   

  
	
  1.5

  	
  Payment of Taxes

  	
   

  
	
  1.6

  	
  Tax Impound Account

  	
   

  
	
  1.7

  	
  [Reserved]

  	
   

  
	
  1.8

  	
  Replacement Reserve

  	
   

  
	
  1.9

  	
  Casualty and
  Condemnation

  	
   

  
	
  1.10

  	
  Construction Liens

  	
   

  
	
  1.11

  	
  Rents and Profits

  	
   

  
	
  1.12

  	
  Leases

  	
   

  
	
  1.13

  	
  Alienation
  and Further Encumbrances

  	
   

  
	
  1.14

  	
  Payment
  of Utilities, Assessments, Charges, Etc.

  	
   

  
	
  1.15

  	
  Access
  Privileges and Inspections

  	
   

  
	
  1.16

  	
  Waste;
  Alteration of Improvements

  	
   

  
	
  1.17

  	
  Zoning

  	
   

  
	
  1.18

  	
  Financial
  Statements and Books and Records

  	
   

  
	
  1.19

  	
  Further Documentation

  	
   

  
	
  1.20

  	
  Payment
  of Costs; Reimbursement to Grantee

  	
   

  
	
  1.21

  	
  Security Interest

  	
   

  
	
  1.22

  	
  Security Agreement

  	
   

  
	
  1.23

  	
  Easements and
  Rights-of-Way

  	
   

  
	
  1.24

  	
  Compliance with Laws

  	
   

  
	
  1.25

  	
  Additional Taxes

  	
   

  
	
  1.26

  	
  Secured Indebtedness

  	
   

  
	
  1.27

  	
  Grantor’s Waivers

  	
   

  
	
  1.28

  	
  SUBMISSION
  TO JURISDICTION; WAIVER OF JURY TRIAL

  	
   

  
	
  1.29

  	
  Attorney-in-Fact
  Provisions

  	
   

  
	
  1.30

  	
  Management

  	
   

  
	
  1.31

  	
  Hazardous
  Waste and Other Substances

  	
   

  
	
  1.32

  	
  Indemnification;
  Subrogation

  	
   

  
	
  1.33

  	
  Covenants
  with Respect to Indebtedness, Operations, Fundamental Changes of Grantor

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  EVENTS OF DEFAULT

  	
   

  
	
  2.1

  	
  Events of Default

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  REMEDIES

  	
   

  
	
  3.1

  	
  Remedies Available

  	
   

  
	
  3.2

  	
  Application of Proceeds

  	
   

  
	
  3.3

  	
  Right
  and Authority of Receiver or Grantee in the Event of Default; Power of
  Attorney

  	
   

  



 





















 


	
  3.4

  	
  Occupancy After
  Foreclosure

  	
   

  
	
  3.5

  	
  Notice to Account
  Debtors

  	
   

  
	
  3.6

  	
  Cumulative Remedies

  	
   

  
	
  3.7

  	
  Payment of Expenses

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  MISCELLANEOUS
  TERMS AND CONDITIONS

  	
   

  
	
  4.1

  	
  Time of Essence

  	
   

  
	
  4.2

  	
  Release of
  Security Instrument

  	
   

  
	
  4.3

  	
  Certain Rights of
  Grantee

  	
   

  
	
  4.4

  	
  Waiver of Certain
  Defenses

  	
   

  
	
  4.5

  	
  Notices;
  Designation of Managing Agent

  	
   

  
	
  4.6

  	
  Successors
  and Assigns; Joint and Several Liability

  	
   

  
	
  4.7

  	
  Severability

  	
   

  
	
  4.8

  	
  Gender

  	
   

  
	
  4.9

  	
  Waiver;
  Discontinuance of Proceedings

  	
   

  
	
  4.10

  	
  Section Headings

  	
   

  
	
  4.11

  	
  GOVERNING LAW

  	
   

  
	
  4.12

  	
  Counting of Days

  	
   

  
	
  4.13

  	
  Relationship of the
  Parties

  	
   

  
	
  4.14

  	
  Application
  of the Proceeds of the Note

  	
   

  
	
  4.15

  	
  Unsecured
  Portion of Indebtedness

  	
   

  
	
  4.16

  	
  Cross Default

  	
   

  
	
  4.17

  	
  Interest After Sale

  	
   

  
	
  4.18

  	
  Inconsistency
  with Other Loan Documents

  	
   

  
	
  4.19

  	
  Construction of
  this Document

  	
   

  
	
  4.20

  	
  No Merger

  	
   

  
	
  4.21

  	
  Rights
  With Respect to Junior Encumbrances

  	
   

  
	
  4.22

  	
  Grantee May
  File Proofs of Claim

  	
   

  
	
  4.23

  	
  Fixture Filing

  	
   

  
	
  4.24

  	
  After-Acquired Property

  	
   

  
	
  4.25

  	
  No Representation

  	
   

  
	
  4.26

  	
  Counterparts

  	
   

  
	
  4.27

  	
  Personal Liability

  	
   

  
	
  4.28

  	
  Recording and Filing

  	
   

  
	
  4.29

  	
  Entire
  Agreement and Modifications

  	
   

  
	
  4.30

  	
  Maximum Interest

  	
   

  
	
  4.31

  	
  Interest Payable by
  Grantee

  	
   

  
	
  4.32

  	
  Dissemination of
  Information

  	
   

  
	
  4.33

  	
  Secondary Market

  	
   

  
	
  4.34

  	
  Certain
  Matters Relating to Property Located in the State of Georgia

  	
   

  
	
  4.35

  	
  WAIVER OF NOTICE
  AND HEARING

  	
   

  
	
  4.36

  	
  Attorneys’ Fee

  	
   

  



 


ii





















 


DEED TO SECURE DEBT AND SECURITY AGREEMENT


 


THIS DEED
TO SECURE DEBT AND SECURITY AGREEMENT (this “Security
Instrument”) is made as of January 8, 2003 by HENRY TOWN CENTER, LLC, a
Georgia limited liability company, ALPHA SEVEN, LLC, a Delaware limited
liability company, ELLISTON HENRY TOWN CENTER, LLC, a Delaware limited
liability company, OWEN HENRY TOWN CENTER, LLC, a Delaware limited liability
company, DSCONGDONA, LLC, a Delaware limited liability company, JWCONGDONA,
LLC, a Delaware limited liability company, KCVANSTORYA, LLC, a Delaware limited
liability company, ALCONGDONA, LLC, a Delaware limited liability company,
SCTERRYA, LLC, a Delaware limited liability company, JRCONGDON,JR.A, LLC, a
Delaware limited liability company, SPENCE HENRY TOWN CENTER, LLC, a Delaware
limited liability company, JAY HENRY TOWN CENTER, LLC, a Delaware limited
liability company, as Grantor (together, jointly and severally, “Grantor”),
to WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, as
Grantee (“Grantee”), whose address is 201 South Tryon Street, Suite 130,
PMB Box #4, Charlotte, North Carolina 28202.


 


W I T N E S S E T H:


 


THAT FOR AND IN
CONSIDERATION OF THE SUM OF TEN AND NO/100 DOLLARS ($10), AND OTHER VALUABLE
CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED,
GRANTOR HEREBY IRREVOCABLY GRANTS, BARGAINS, SELLS, CONVEYS, TRANSFERS,
PLEDGES, SETS OVER AND ASSIGNS, with power of sale, all of Grantor’s estate,
right, title and interest in, to and under any and all of the following
described property, whether now owned or hereafter acquired by Grantor
(collectively, the “Property”):


 


(A)                              All
that certain real property situated in the County of Henry, State of Georgia,
more particularly described on Exhibit A attached hereto and
incorporated herein by this reference (the “Premises”), together with
all of the easements, rights, privileges, franchises, tenements, hereditaments
and appurtenances now or hereafter thereunto belonging or in any way
appertaining thereto, and all of the estate, right, title, interest, claim and
demand whatsoever of Grantor therein or thereto, either at law or in equity, in
possession or in expectancy, now or hereafter acquired;


 


(B)                                All
structures, buildings and improvements of every kind and description now or at any
time hereafter located or placed on the Premises (the “Improvements”);


 


(C)                                All
furniture, furnishings, fixtures, goods, equipment, inventory or personal
property owned by Grantor and now or hereafter located on, attached to or used
in and about the Improvements, including, but not limited to, all machines,
engines, boilers, dynamos, elevators, stokers, tanks, cabinets, awnings,
screens, shades, blinds, carpets, draperies, lawn mowers, and all appliances,
plumbing, heating, air conditioning, lighting, ventilating, refrigerating,
disposal and incinerating equipment, and all fixtures and appurtenances
thereto, and such other goods and


 





















 


chattels and personal
property owned by Grantor as are now or hereafter used or furnished in
operating the Improvements, or the activities conducted therein, and all
building materials and equipment hereafter situated on or about the Premises or
Improvements, and all warranties and guaranties relating thereto, and all
additions thereto and substitutions and replacements therefor (exclusive of any
of the foregoing owned or leased by tenants of space in the Improvements);


 


(D)                               All
easements, rights-of-way, strips and gores of land, vaults, streets, ways,
alleys, passages, sewer rights, and other emblements now or hereafter located
on the Premises or under or above the same or any part or parcel thereof, and
all estates, rights, titles, interests, tenements, hereditaments and
appurtenances, reversions and remainders whatsoever, in any way belonging, relating
or appertaining to the Property or any part thereof, or which hereafter shall
in any way belong, relate or be appurtenant thereto, whether now owned or
hereafter acquired by Grantor;


 


(E)                                 All
water, ditches, wells, reservoirs and drains and all water, ditch, well,
reservoir and drainage rights which are appurtenant to, located on, under or
above or used in connection with the Premises or the Improvements, or any part
thereof, whether now existing or hereafter created or acquired;


 


(F)                                 All
minerals, crops, timber, trees, shrubs, flowers and landscaping features now or
hereafter located on, under or above the Premises;


 


(G)                                All
cash funds, deposit accounts and other rights and evidence of rights to cash,
now or hereafter created or held by Grantee pursuant to this Security
Instrument or any other of the Loan Documents (as hereinafter defined),
including, without limitation, all funds now or hereafter on deposit in the
Impound Account and the Replacement Reserve (each as hereinafter defined) and
that certain Account and the Leasing Dollars therein, as set forth and defined
in that certain Purchase Agreement dated as of September 10, 2002, as
amended October 24, 2002, by and between Sembler Family Partnership #22,
Ltd., as Seller, and Steven D. Bell & Company, as Buyer, as assigned to Grantor;


 


(H)                               All
leases (including, without limitation, oil, gas and mineral leases), licenses,
concessions and occupancy agreements of all or any part of the Premises or the
Improvements (each, a “Lease” and collectively, “Leases”),
whether written or oral, now or hereafter entered into and all rents,
royalties, issues, profits, bonus money, revenue, income, rights and other
benefits (collectively, the “Rents and Profits”) of the Premises or the
Improvements, now or hereafter arising from the use or enjoyment of all or any
portion thereof or from any present or future Lease or other agreement
pertaining thereto or arising from any of the Leases or any of the General
Intangibles (as hereinafter defined) and all cash or securities deposited to
secure performance by the tenants, lessees or licensees (each, a “Tenant”
and collectively, “Tenants”), as applicable, of their obligations under
any such Leases, whether said cash or securities are to be held until the
expiration of the terms of said Leases or applied to one or more of the
installments of rent coming due prior to the expiration of said terms, subject,
however, to the provisions contained in Section 1.11 hereinbelow;


 


(I)                                    All
contracts and agreements now or hereafter entered into covering any part of the
Premises or the Improvements (collectively, the “Contracts”) and all
revenue, income and other benefits thereof, including, without limitation,
management agreements, joint ownership agreements, co-tenancy agreements,
service contracts, maintenance contracts, equipment leases,


 


2





















 


personal property leases
and any contracts or documents relating to construction on any part of the
Premises or the Improvements (including plans, drawings, surveys, tests,
reports, bonds and governmental approvals) or to the management or operation of
any part of the Premises or the Improvements;


 


(J)                                   All
present and future monetary deposits given to any public or private utility
with respect to utility services furnished to any part of the Premises or the
Improvements;


 


(K)                               All
present and future funds, accounts, instruments, accounts receivable,
documents, causes of action, claims, general intangibles (including, without
limitation, trademarks, trade names, service marks and symbols now or hereafter
used in connection with any part of the Premises or the Improvements, all names
by which the Premises or the Improvements may be operated or known, all rights
to carry on business under such names, and all rights, interest and privileges
which Grantor has or may have as developer or declarant under any covenants,
restrictions or declarations now or hereafter relating to the Premises or the
Improvements) and all notes or chattel paper now or hereafter arising from or
by virtue of any transactions related to the Premises or the Improvements
(collectively, the “General Intangibles”);


 


(L)                                 All
water taps, sewer taps, certificates of occupancy, permits, licenses,
franchises, certificates, consents, approvals and other rights and privileges
now or hereafter obtained in connection with the Premises or the Improvements
and all present and future warranties and guaranties relating to the
Improvements or to any equipment, fixtures, furniture, furnishings, personal
property or components of any of the foregoing now or hereafter located or
installed on the Premises or the Improvements;


 


(M)                            All
building materials, supplies and equipment now or hereafter placed on the
Premises or in the Improvements and all architectural renderings, models,
drawings, plans, specifications, studies and data now or hereafter relating to
the Premises or the Improvements;


 


(N)                               All
right, title and interest of Grantor in any insurance policies or binders now
or hereafter relating to the Property, including any unearned premiums thereon;


 


(O)                               All
proceeds, products, substitutions and accessions (including claims and demands
therefor) of the conversion, voluntary or involuntary, of any of the foregoing
into cash or liquidated claims, including, without limitation, proceeds of
insurance and condemnation awards; and


 


(P)                                 All
other or greater rights and interests of every nature in the Premises or the
Improvements and in the possession or use thereof and income therefrom, whether
now owned or hereafter acquired by Grantor.


 


THIS CONVEYANCE is
intended: (i) to operate and to be construed as a deed passing title to the
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 (ii) to constitute a security agreement pursuant to the Uniform Commercial
Code of Georgia, and is given to secure the following:


 


3





















 


FOR THE PURPOSE OF
SECURING:


 


(1)                                  The
debt evidenced by that certain Promissory Note (such Promissory Note, together with
any and all renewals, amendments, modifications, consolidations and extensions
thereof, is hereinafter referred to as the “Note”) of even date with
this Security Instrument, made by Grantor payable to the order of Grantee in
the principal face amount of THIRTY-SIX MILLION AND NO/100 DOLLARS ($36,000,000.00),
together with interest as therein provided, and HAVING A MATURITY DATE OF JANUARY 11,
2013;


 


(2)                                  The
full and prompt payment and performance of all of the provisions, agreements, covenants
and obligations herein contained and contained in any other agreements,
documents or instruments now or hereafter evidencing, securing or otherwise
relating to the Debt (as hereinafter defined) including, but not limited to,
the Environmental Indemnity Agreement (as hereinafter defined)(the Note, this
Security Instrument, and such other agreements, documents and instruments, together
with any and all renewals, amendments, extensions and modifications thereof,
are hereinafter collectively referred to as the “Loan Documents”) and
the payment of all other sums herein or therein covenanted to be paid;


 


(3)                                  Any
and all additional advances made by Grantee to protect or preserve the Property
or the lien or security interest created hereby on the Property, or for taxes,
assessments or insurance premiums as hereinafter provided or for performance of
any of Grantor’s obligations hereunder or under the other Loan Documents or for
any other purpose provided herein or in the other Loan Documents (whether or
not the original Grantor remains the owner of the Property at the time of such
advances); and


 


(4)                                  Any
and all other indebtedness now owing or which may hereafter be owing by Grantor
to Grantee, including, without limitation, all prepayment fees, however and
whenever incurred or evidenced, whether express or implied, direct or indirect,
absolute or contingent, or due or to become due, and all renewals,
modifications, consolidations, replacements and extensions thereof, it being
contemplated by Grantor and Grantee that Grantor may hereafter become so indebted
to Grantee.


 


(All of the sums referred
to in Paragraphs (1) through (4) above are herein referred to as the “Debt”).


 


TO HAVE AND TO
HOLD the Property unto Grantee, its successors and assigns forever, and Grantor
does hereby bind itself, its successors and assigns, to WARRANT AND FOREVER
DEFEND the title to the Property, subject to the Permitted Encumbrances (as
hereinafter defined), to Grantee against every person whomsoever lawfully
claiming or to claim the same or any part thereof;


 


PROVIDED, HOWEVER,
that if the principal and interest and all other sums due or to become due
under the Note or under the other Loan Documents, including, without
limitation, any prepayment fees required pursuant to the terms of the Note,
shall have been paid at the time and in the manner stipulated therein and the
Debt shall have been paid and all other covenants contained in the Loan
Documents shall have been performed, then, in such case, the liens, security
interests, estates and rights granted by this Security Instrument shall be
satisfied and the estate, right, title and


 


4





















 


interest of Grantee in
the Property shall cease, and upon payment to Grantee of all costs and expenses
incurred for the preparation of the release hereinafter referenced and all
recording costs if allowed by law, Grantee shall promptly satisfy and release
this Security Instrument of record and the lien hereof by proper instrument.


 


ARTICLE I


 


COVENANTS
OF GRANTOR


 


For the purpose of
further securing the Debt and for the protection of the security of this
Security Instrument, for so long as the Debt or any part thereof remains
unpaid, Grantor covenants and agrees as follows:


 


1.1                               Warranties
of Grantor.


 


Grantor, for
itself and its successors and assigns, does hereby represent, warrant and
covenant to and with Grantee, its successors and assigns, that:


 


(a)                                  Grantor
has good, marketable and indefeasible fee simple title to the Property, subject
only to those matters expressly set forth as exceptions to or subordinate
matters in the title insurance policy insuring the lien of this Security
Instrument delivered as of the date hereof which Grantee has agreed to accept,
excepting therefrom all preprinted and/or standard exceptions (such items being
the “Permitted Encumbrances”), and has full power and lawful authority
to grant, bargain, sell, convey, assign, transfer, encumber and mortgage its
interest in the Property in the manner and form hereby done or intended.
Grantor will preserve its interest in and title to the Property and will
forever warrant and defend the same to Grantee against any and all claims
whatsoever and will forever warrant and defend the validity and priority of the
lien and security interest created herein against the claims of all persons and
parties whomsoever, subject to the Permitted Encumbrances. The foregoing
warranty of title shall survive the foreclosure of this Security Instrument and
shall inure to the benefit of and be enforceable by Grantee in the event
Grantee acquires title to the Property pursuant to any foreclosure;


 


(b)                                 No
bankruptcy or insolvency proceedings are pending or contemplated by Grantor or,
to the best knowledge of Grantor, against Grantor or by or against any endorser
or cosigner of the Note or of any portion of the Debt, or any guarantor or
indemnitor under any guaranty or indemnity agreement executed in connection
with the Note or the loan evidenced thereby and secured hereby (an “Indemnitor”);


 


(c)                                  All
reports, certificates, affidavits, statements and other data furnished by or on
behalf of Grantor to Grantee in connection with the loan evidenced by the Note
are true and correct in all material respects and do not omit to state any fact
or circumstance necessary to make the statements contained therein not
misleading;


 


(d)                                 The
execution, delivery and performance of this Security Instrument, the Note and
all of the other Loan Documents have been duly authorized by all necessary
action to be, and


 


5





















 


are, binding and
enforceable against Grantor in accordance with the respective terms thereof and
do not contravene, result in a breach of or constitute a default (nor upon the
giving of notice or the passage of time or both will same constitute a default)
under the partnership agreement, articles of incorporation, operating agreement
or other organizational documents of Grantor or any contract or agreement of
any nature to which Grantor is a party or by which Grantor or any of its
property may be bound and do not violate or contravene any law, order, decree,
rule or regulation to which Grantor is subject;


 


(e)                                  The
Premises and the Improvements and the current intended use thereof by Grantor
comply in all material respects with all applicable restrictive covenants,
zoning ordinances, subdivision and building codes, flood disaster laws, health
and environmental laws and regulations and all other ordinances, orders or
requirements issued by any state, federal or municipal authorities having or
claiming jurisdiction over the Property. The Premises and Improvements
constitute one or more separate tax parcels for purposes of ad valorem
taxation. The Premises and Improvements do not require any rights over, or
restrictions against, other property in order to comply with any of the
aforesaid governmental ordinances, orders or requirements;


 


(f)                                    All
utility services necessary and sufficient for the full use, occupancy,
operation and disposition of the Premises and the Improvements for their
intended purposes are available to the Property, including water, storm sewer,
sanitary sewer, gas, electric, cable and telephone facilities, through public
rights-of-way or perpetual private easements approved by Grantee;


 


(g)                                 All
streets, roads, highways, bridges and waterways necessary for access to and full
use, occupancy, operation and disposition of the Premises and the Improvements
have been completed, have been dedicated to and accepted by the appropriate
municipal authority and are open and available to the Premises and the
Improvements without further condition or cost to Grantor;


 


(h)                                 All
curb cuts, driveways and traffic signals shown on the survey delivered to
Grantee prior to the execution and delivery of this Security Instrument are existing
and have been fully approved by the appropriate governmental authority;


 


(i)                                     There
are no judicial, administrative, mediation or arbitration actions, suits or
proceedings pending or threatened against or affecting Grantor (or, if Grantor
is a partnership or a limited liability company, any of its general partners or
members) or the Property which, if adversely determined, would materially
impair either the Property or Grantor’s ability to perform the covenants or
obligations required to be performed under the Loan Documents;


 


(j)                                     The
Property is free from delinquent water charges, sewer rents, taxes and
assessments;


 


(k)                                  As
of the date of this Security Instrument, the Property is free from unrepaired
damage caused by fire, flood, accident or other casualty;


 


6





















 


(l)                                     As
of the date of this Security Instrument, no part of the Premises or the
Improvements has been taken in condemnation, eminent domain or like proceeding
nor is any such proceeding pending or, to Grantor’s knowledge and belief,
threatened or contemplated;


 


(m)                               Grantor
possesses all franchises, patents, copyrights, trademarks, trade names,
licenses and permits necessary for the conduct of its business substantially as
now conducted;


 


(n)                                 To
the best of Grantor’s knowledge and except as may otherwise be disclosed in
that certain Property Condition Report delivered to Grantee with respect to the
Property, the Improvements are structurally sound, in good repair and free of
defects in materials and workmanship and have been constructed and installed in
substantial compliance with the plans and specifications relating thereto. All
major building systems located within the Improvements, including, without
limitation, the heating and air conditioning systems and the electrical and
plumbing systems, are in good working order and condition;


 


(o)                                 Grantor
has delivered to Grantee true, correct and complete copies of all Contracts and
all amendments thereto or modifications thereof;


 


(p)                                 Each
Contract constitutes the legal, valid and binding obligation of Grantor and, to
the best of Grantor’s knowledge and belief, is enforceable against any other
party thereto. To the best of Grantor’s knowledge, no default exists, or with
the passing of time or the giving of notice or both would exist, under any
Contract which would, in the aggregate, have a material adverse effect on
Grantor or the Property;


 


(q)                                 No
Contract provides any party with the right to obtain a lien or encumbrance upon
the Property superior to the lien of this Security Instrument;


 


(r)                                    Grantor
and the Property are free from any past due obligations for sales and payroll
taxes;


 


(s)                                  There
are no security agreements or financing statements affecting all or any portion
of the Property other than (i) as disclosed in writing by Grantor to Grantee
prior to the date hereof and (ii) the security agreements and financing
statements created in favor of Grantee;


 


(t)                                    Grantor
has delivered a true, correct and complete schedule (the “Rent Roll”)
of all Leases affecting the Property as of the date hereof, which accurately
and completely sets forth in all material respects for each such Lease, the
following: the name of the Tenant, the Lease expiration date, extension and
renewal provisions, the base rent payable, the security deposit held thereunder
and any other material provisions of such Lease;


 


(u)                                 Each
Lease constitutes the legal, valid and binding obligation of Grantor and, to
the best of Grantor’s knowledge and belief, is enforceable against the Tenant
thereof. No default exists, or with the passing of time or the giving of notice
or both would exist, under any Lease which would, in the aggregate, have a
material adverse effect on Grantor or the Property;


 


7





















 


(v)                                 No
Tenant under any Lease has, as of the date hereof, paid rent more than thirty
(30) days in advance, and the rents under such Leases have not been waived,
released, or otherwise discharged or compromised;


 


(w)                               All
work to be performed by Grantor under the Leases has been substantially
performed, all contributions to be made by Grantor to the Tenants thereunder
have been made and all other conditions precedent to each such Tenant’s
obligations thereunder have been satisfied;


 


(x)                                   Except
as disclosed in writing by Grantor to Grantee, each Tenant under a Lease has
entered into occupancy of the demised premises;


 


(y)                                 Grantor
has delivered to Grantee true, correct and complete copies of all Leases
described in the Rent Roll;


 


(z)                                   To
the best of Grantor’s knowledge and belief, each Tenant is free from
bankruptcy, reorganization or arrangement proceedings or a general assignment
for the benefit of creditors;


 


(aa)                            No
Lease provides any party with the right to obtain a lien or encumbrance upon
the Property superior to the lien of this Security Instrument; and


 


(bb)                          Grantor
is not a “foreign person” within the meaning of §1445(f)(3) of the Internal
Revenue Code of 1986, as amended, and the related Treasury Department
regulations, including temporary regulations.


 


1.2                               Defense
of Title.


 


If, while this
Security Instrument is in force, the title to the Property or the interest of
Grantee therein shall be the subject, directly or indirectly, of any action at
law or in equity, or be attached directly or indirectly, or endangered, clouded
or adversely affected in any manner, Grantor, at Grantor’s expense, shall take
all necessary and proper steps for the defense of said title or interest,
including the employment of counsel approved by Grantee, the prosecution or
defense of litigation, and the compromise or discharge of claims made against
said title or interest. Notwithstanding the foregoing, in the event that
Grantee determines that Grantor is not adequately performing its obligations
under this Section, Grantee may, without limiting or waiving any other rights
or remedies of Grantee hereunder, take such steps with respect thereto as
Grantee shall deem necessary or proper and any and all costs and expenses
incurred by Grantee in connection therewith, together with interest thereon at
the Default Interest Rate (as defined in the Note) from the date incurred by
Grantee until actually paid by Grantor, shall be immediately paid by Grantor on
demand and shall be secured by this Security Instrument and by all of the other
Loan Documents securing all or any part of the indebtedness evidenced by the
Note.


 


8





















 


1.3                               Performance
of Obligations.


 


Grantor shall pay
when due the principal of and the interest on the Debt in accordance with the
terms of the Note. Grantor shall also pay all charges, fees and other sums
required to be paid by Grantor as provided in the Loan Documents, in accordance
with the terms of the Loan Documents, and shall observe, perform and discharge
all obligations, covenants and agreements to be observed, performed or
discharged by Grantor set forth in the Loan Documents in accordance with their
terms. Further, Grantor shall promptly and strictly perform and comply with all
covenants, conditions, obligations and prohibitions required of Grantor in
connection with any other document or instrument affecting title to the
Property, or any part thereof, regardless of whether such document or
instrument is superior or subordinate to this Security Instrument.


 


1.4                               Insurance.


 


Grantor shall, at
Grantor’s expense, maintain in force and effect on the Property at all times
while this Security Instrument continues in effect the following insurance:


 


(a)                                  Insurance
against loss or damage to the Property by fire, windstorm, tornado and hail and
against loss and damage by such other, further and additional risks as may be
now or hereafter embraced by an “all-risk” form of insurance policy. The amount
of such insurance shall be not less than one hundred percent (100%) of the full
replacement cost (insurable value) of the Improvements (as established by an
MAI appraisal), without reduction for depreciation. The determination of the
replacement cost amount shall be adjusted annually to comply with the requirements
of the insurer issuing such coverage or, at Grantee’s election, by reference to
such indices, appraisals or information as Grantee determines in its reasonable
discretion in order to reflect increased value due to inflation. Absent such
annual adjustment, each policy shall contain inflation guard coverage insuring
that the policy limit will be increased over time to reflect the effect of
inflation. Full replacement cost, as used herein, means, with respect to the Improvements,
the cost of replacing the Improvements without regard to deduction for depreciation,
exclusive of the cost of excavations, foundations and footings below the lowest
basement floor. Grantor shall also maintain insurance against loss or damage to
furniture, furnishings, fixtures, equipment and other items (whether personalty
or fixtures) included in the Property and owned by Grantor from time to time to
the extent applicable. Each policy shall contain a replacement cost endorsement
and either an agreed amount endorsement (to avoid the operation of any
co-insurance provisions) or a waiver of any co-insurance provisions, all
subject to Grantee’s approval. The maximum deductible shall be $10,000.00.


 


(b)                                 Commercial
General Liability Insurance against claims for personal injury, bodily injury,
death and property damage occurring on, in or about the Premises or the
Improvements in amounts not less than $1,000,000.00 per occurrence and
$2,000,000.00 in the aggregate plus umbrella coverage in an amount not less
than $2,000,000.00. Grantee hereby retains the right to periodically review the
amount of said liability insurance being maintained by Grantor and to require
an increase in the amount of said liability insurance should Grantee deem an
increase to be reasonably prudent under then existing circumstances.


 


9





















 


(c)                                  Boiler
and machinery insurance is required if steam boilers or other pressure-fired vessels
are in operation at the Premises. Minimum liability coverage per accident must
equal the greater of the replacement cost (insurable value) of the Improvements
housing such boiler or pressure-fired machinery or $2,000,000.00. If one or
more large HVAC units is in operation at the Premises, “Systems Breakdowns”
coverage shall be required, as determined by Grantee. Minimum liability coverage
per accident must equal the value of such unit(s).


 


(d)                                 If
the Improvements or any part thereof is situated in an area designated by the Federal
Emergency Management Agency (“FEMA”) as a special flood hazard area
(Zone A or Zone V), flood insurance in an amount equal to the lesser of: (a)
the minimum amount required, under the terms of coverage, to compensate for any
damage or loss on a replacement basis (or the unpaid balance of the Debt if
replacement cost coverage is not available for the type of building insured),
or (b) the maximum insurance available under the appropriate National Flood
Insurance Administration program. The maximum deductible shall be $3,000.00 per
building or a higher minimum amount as required by FEMA or other applicable
law.


 


(e)                                  During
the period of any construction, renovation or alteration of the existing Improvements
which exceeds the lesser of 10% of the principal amount of the Note or
$500,000, at Grantee’s request, a completed value, “All Risk” Builder’s Risk
form or “Course of Construction” insurance policy in non-reporting form, in an
amount approved by Grantee, may be required. During the period of any
construction of any addition to the existing Improvements, a completed value, “All
Risk” Builder’s Risk form or “Course of Construction” insurance policy in
non-reporting form, in an amount approved by Grantee, shall be required.


 


(f)                                    When
required by applicable law, ordinance or other regulation, Worker’s Compensation
and Employer’s Liability Insurance covering all persons subject to the worker’s
compensation laws of the state in which the Property is located.


 


(g)                                 Business
income (loss of rents) insurance in amounts sufficient to compensate Grantor
for all Rents or income during a period of not less than eighteen (18) months.
The amount of coverage shall be adjusted annually to reflect the Rents or
income payable during the succeeding eighteen (18) month period.


 


(h)                                 Such
other insurance on the Property or on any replacements or substitutions thereof
or additions thereto as may from time to time be required by Grantee against
other insurable hazards or casualties which at the time are commonly insured
against in the case of property similarly situated including, without
limitation, Sinkhole, Mine Subsidence, Earthquake and Environmental insurance,
due regard being given to the height and type of buildings, their construction,
location, use and occupancy.


 


(i)                                     To
the extent required by Grantee and commercially reasonably available at
commercially reasonable rates, terrorism insurance.


 


All such insurance
shall (i) be with insurers fully licensed and authorized to do business in the
state within which the Premises is located and who have and maintain a rating
of at least A from Standard & Poors, or equivalent, (ii) contain the
complete address of the Premises (or a complete


 


10





















 


legal description), (iii)
be for terms of at least one year, with premium prepaid, and (iv) be subject to
the approval of Grantee as to insurance companies, amounts, content, forms of
policies, method by which premiums are paid and expiration dates, and (vi)
include a standard, non-contributory, mortgagee clause naming EXACTLY:


 


Wachovia Bank,
National Association


its Successors and
Assigns ATIMA


Attn.: Structured
Finance Servicing


P.O. Box 563956


Charlotte, NC
28256-3956


 


(a) as an additional
insured under all liability insurance policies, (b) as the first
mortgagee on all property insurance policies and (c) as the loss payee
on all loss of rents or loss of business income insurance policies.


 


Grantor shall, as
of the date hereof, deliver to Grantee evidence that said insurance policies
have been prepaid as required above and certified copies of such insurance
policies and original certificates of insurance signed by an authorized agent
of the applicable insurance companies evidencing such insurance satisfactory to
Grantee. Grantor shall renew all such insurance and deliver to Grantee
certificates and policies evidencing such renewals at least thirty (30) days
before any such insurance shall expire. Grantor further agrees that each such
insurance policy: (i) shall provide for at least thirty (30) days’ prior
written notice to Grantee prior to any policy reduction or cancellation for any
reason other than non-payment of premium and at least ten (10) days’ prior
written notice to Grantee prior to any cancellation due to non-payment of
premium; (ii) shall contain an endorsement or agreement by the insurer that any
loss shall be payable to Grantee in accordance with the terms of such policy
notwithstanding any act or negligence of Grantor which might otherwise result
in forfeiture of such insurance, (iii) shall waive all rights of subrogation
against Grantee; (iv) in the event that the Premises or the Improvements constitutes
a legal non-conforming use under applicable building, zoning or land use laws
or ordinances, shall include an ordinance or law coverage endorsement which
will contain Coverage A: “Loss Due to Operation of Law” (with a minimum
liability limit equal to Replacement Cost With Agreed Value Endorsement),
Coverage B: “Demolition Cost” and Coverage C: “Increased Cost of Construction”
coverages; and (v) may be in the form of a blanket policy provided that, in the
event that any such coverage is provided in the form of a blanket policy,
Grantor hereby acknowledges and agrees that failure to pay any portion of the
premium therefor which is not allocable to the Property or by any other action
not relating to the Property which would otherwise permit the issuer thereof to
cancel the coverage thereof, would require the Property to be insured by a
separate, single-property policy. The blanket policy must properly identify and
fully protect the Property as if a separate policy were issued for 100% of
Replacement Cost at the time of loss and otherwise meet all of Grantee’s
applicable insurance requirements set forth in this Section 1.4. The
delivery to Grantee of the insurance policies or the certificates of insurance
as provided above shall constitute an assignment of all proceeds payable under
such insurance policies relating to the Property by Grantor to Grantee as
further security for the Debt. In the event of foreclosure of this Security
Instrument, or other transfer of title to the Property in extinguishment in
whole or in part of the Debt, all right, title and interest of Grantor in and
to all proceeds payable under such policies then in force concerning the
Property shall thereupon vest in the purchaser at such foreclosure, or in
Grantee or other transferee in the event of


 


11





















 


such other transfer of
title. Approval of any insurance by Grantee shall not be a representation of
the solvency of any insurer or the sufficiency of any amount of insurance. In
the event Grantor fails to provide, maintain, keep in force or deliver and
furnish to Grantee the policies of insurance required by this Security Instrument
or evidence of their renewal as required herein, Grantee may, but shall not be
obligated to, procure such insurance and Grantor shall pay all amounts advanced
by Grantee therefor, together with interest thereon at the Default Interest Rate
from and after the date advanced by Grantee until actually repaid by Grantor,
promptly upon demand by Grantee. Any amounts so advanced by Grantee, together
with interest thereon, shall be secured by this Security Instrument and by all
of the other Loan Documents securing all or any part of the Debt. Grantee shall
not be responsible for nor incur any liability for the insolvency of the
insurer or other failure of the insurer to perform, even though Grantee has
caused the insurance to be placed with the insurer after failure of Grantor to
furnish such insurance. Grantor shall not obtain insurance for the Property in
addition to that required by Grantee without the prior written consent of
Grantee, which consent will not be unreasonably withheld provided that (i)
Grantee is a named insured on such insurance, (ii) Grantee receives complete
copies of all policies evidencing such insurance, and (iii) such insurance
complies with all of the applicable requirements set forth herein.


 


1.5                               Payment
of Taxes.


 


Grantor shall pay
or cause to be paid, except to the extent provision is actually made therefor
pursuant to Section 1.6 of this Security Instrument, all taxes and
assessments which are or may become a lien on the Property or which are
assessed against or imposed upon the Property. Grantor shall furnish Grantee
with receipts (or if receipts are not immediately available, with copies of canceled
checks evidencing payment with receipts to follow promptly after they become
available) showing payment of such taxes and assessments at least fifteen (15)
days prior to the applicable delinquency date therefor. Notwithstanding the
foregoing, Grantor may, in good faith, by appropriate proceedings and upon
notice to Grantee, contest the validity, applicability or amount of any
asserted tax or assessment so long as (a) such contest is diligently pursued,
(b) Grantee determines, in its subjective opinion, that such contest suspends
the obligation to pay the tax and that nonpayment of such tax or assessment
will not result in the sale, loss, forfeiture or diminution of the Property or
any part thereof or any interest of Grantee therein, and (c) prior to the
earlier of the commencement of such contest or the delinquency date of the
asserted tax or assessment, Grantor deposits in the Impound Account (as
hereinafter defined) an amount determined by Grantee to be adequate to cover
the payment of such tax or assessment and a reasonable additional sum to cover
possible interest, costs and penalties; provided, however, that
Grantor shall promptly cause to be paid any amount adjudged by a court of
competent jurisdiction to be due, with all interest, costs and penalties
thereon, promptly after such judgment becomes final, and provided  further
that in any event each such contest shall be concluded and the taxes,
assessments, interest, costs and penalties shall be paid prior to the date any
writ or order is issued under which the Property may be sold, lost or
forfeited.


 


1.6                               Tax
Impound Account.


 


Grantor shall
establish and maintain at all times while this Security Instrument continues in
effect an impound account (the “Impound Account”) with Grantee for
payment of real estate taxes and assessments on the Property and as additional
security for the Debt. Simultaneously with the execution hereof, Grantor shall
deposit in the Impound Account an amount determined


 


12





















 


by Grantee to be
necessary to ensure that there
will be on deposit with Grantee an amount which, when added to the monthly
payments subsequently required to be deposited with Grantee hereunder on
account of real estate taxes and assessments, will result in there being on
deposit with Grantee in the Impound Account an amount sufficient to pay the
next due installment of real estate taxes and assessments on the Property at
least one (1) month prior to the earlier of (a) the due date thereof or (b) any
such date by which Grantor or Grantee is required by law to pay same.
Commencing on the first monthly payment date under the Note and continuing
thereafter on each monthly payment date under the Note, Grantor shall pay to
Grantee, concurrently with and in addition to the monthly payment due under the
Note and until the Debt is fully paid and performed, deposits in an amount
equal to one-twelfth (1/12) of the amount of the annual real estate taxes and
assessments that will next become due and payable on the Property, each as
estimated and determined by Grantee. So long as no Event of Default has
occurred, and no event has occurred or failed to occur which with the passage
of time, the giving of notice, or both would constitute an Event of Default (a “Default;)
all sums in the Impound Account shall be held by Grantee in the Impound Account
to pay said taxes and assessments before the same become delinquent. Grantor
shall be responsible for ensuring the receipt by Grantee, at least thirty (30)
days prior to the respective due date for payment thereof, of all bills,
invoices and statements for all taxes and assessments to be paid from the
Impound Account, and so long as no Event of Default has occurred, Grantee shall
pay the governmental authority or other party entitled thereto directly to the
extent funds are available for such purpose in the Impound Account. Commencing
on the first payment date following an Event of Default, and continuing
thereafter on each monthly payment date under the Note, in addition to the
monthly deposit for taxes and assessments, Grantor shall deposit with Grantee
an amount equal to one-twelfth (1/12) of the amount of the annual premiums that
will next become due and payable on insurance policies which Grantor is
required to maintain hereunder. In making any payment from the Impound Account,
Grantee shall be entitled to rely on any bill, statement or estimate procured
from the appropriate public office or insurance company or agent without any
inquiry into the accuracy of such bill, statement or estimate and without any
inquiry into the accuracy, validity, enforceability or contestability of any
tax, assessment, valuation, sale, forfeiture, tax lien or title or claim
thereof. No interest on funds contained in the Impound Account, if any, shall
be paid by Grantee to Grantor.


 


1.7                               [Reserved].


 


1.8                               Replacement
Reserve.


 


(a)                                  Following
an Event of Default, as additional security for the Debt, Grantor shall
establish and maintain at all times thereafter while this Security Instrument
continues in effect a repair reserve (the “Replacement Reserve”) with
Grantee for payment of costs and expenses incurred by Grantor in connection
with the performance of work to the roofs, chimneys, gutters, downspouts,
paving, curbs, ramps, driveways, balconies, porches, patios, exterior walls,
exterior doors and doorways, windows, elevators and mechanical and HVAC
equipment (collectively, the “Repairs”). Commencing on the first monthly
Payment Date under the Note following an Event of Default and continuing
thereafter on each monthly Payment Date under the Note, Grantor shall pay to
Grantee, concurrently with and in addition to the monthly payment due under the
Note and until the Debt is fully paid and performed, a deposit to the
Replacement Reserve in an


 


13





















 


amount determined by
Grantee. All sums in the Replacement Reserve shall be held by Grantee in the
Replacement Reserve to pay the costs and expenses of Repairs. Grantee shall, to
the extent funds are available for such purpose in the Replacement Reserve,
disburse to Grantor the amount paid or incurred by Grantor in performing such
Repairs within ten (10) days following: (a) the receipt by Grantee of a written
request from Grantor for disbursement from the Replacement Reserve and a certification
by Grantor in a form approved in writing by Grantee that the applicable item of
Repair has been completed; (b) the delivery to Grantee of invoices, receipts or
other evidence satisfactory to Grantee, verifying the cost of performing the
Repairs; (c) for disbursement requests in excess of $25,000.00, the delivery to
Grantee of affidavits, lien waivers or other evidence reasonably satisfactory
to Grantee showing that all materialmen, laborers, subcontractors and any other
parties who might or could claim statutory or common law liens and are
furnishing or have furnished material or labor to the Property have been paid
all amounts due for labor and materials furnished to the Property; (d) for
disbursement requests in excess of $25,000.00, delivery to Grantee of a
certification from an inspecting architect or other third party acceptable to
Grantee describing the completed Repairs and verifying the completion of the
Repairs and the value of the completed Repairs, and (e) for disbursement
requests in excess of $25,000.00, delivery to Grantee of a new certificate of
occupancy for the portion of the Improvements covered by such Repairs, if said
new certificate of occupancy is required by law, or a certification by Grantor
that no new certificate of occupancy is required. Grantee shall not be required
to make advances from the Replacement Reserve more frequently than once in any
ninety (90) day period. In making any payment from the Replacement Reserve,
Grantee shall be entitled to rely on such request from Grantor without any
inquiry into the accuracy, validity or contestability of any such amount.
Grantee may, at Grantor’s expense, make or cause to be made during the term of
this Security Instrument an annual inspection of the Property to determine the
need, as determined by Grantee in its reasonable judgment, for further Repairs
of the Property. In the event that such inspection reveals that further Repairs
of the Property are required, Grantee shall provide Grantor with a written
description of the required Repairs and Grantor shall complete such Repairs to
the reasonable satisfaction of Grantee within ninety (90) days after the
receipt of such description from Grantee, or such later date as may be approved
by Grantee in its sole discretion. Interest on the funds contained in the
Replacement Reserve shall be credited to Grantor as provided in Section 4.31
hereof.


 


(b)                                 As
additional security for the payment and performance by Grantor of all duties,
responsibilities and obligations under the Note and the other Loan Documents,
Grantor hereby unconditionally and irrevocably assigns, conveys, pledges,
mortgages, transfers, delivers, deposits, sets over and confirms unto Grantee,
and hereby grants to Grantee a security interest in, (i) the Impound Account
and the Replacement Reserve, if any, and any other reserve or escrow account
established pursuant to the terms hereof or of any other Loan Document
(collectively, the “Reserves”), (ii) the accounts into which the
Reserves have been deposited, (iii) all insurance on said accounts, (iv) all
accounts, contract rights and general intangibles or other rights and interests
pertaining thereto, (v) all sums now or hereafter therein or represented
thereby, (vi) all replacements, substitutions or proceeds thereof, (vii) all instruments
and documents now or hereafter evidencing the Reserves or such accounts, (viii)
all powers, options, rights, privileges and immunities pertaining to the
Reserves (including the right to make withdrawals therefrom), and (ix) all
proceeds of the foregoing. Grantor hereby authorizes and consents to the
account into which the Reserves have been deposited being held in Grantee’s
name or the name of any


 


14





















 


entity servicing the Note
for Grantee and hereby acknowledges and agrees that Grantee, or at Grantee’s
election, such servicing agent, shall have exclusive control over said account.
Notice of the assignment and security interest granted to Grantee herein may be
delivered by Grantee at any time to the financial institution wherein the
Reserves have been established, and Grantee, or such servicing entity, shall
have possession of all passbooks or other evidences of such accounts. Grantor
hereby assumes all risk of loss with respect to amounts on deposit in the
Reserves. Grantor hereby knowingly, voluntarily and intentionally stipulates,
acknowledges and agrees that the advancement of the funds from the Reserves as
set forth herein is at Grantor’s direction and is not the exercise by Grantee
of any right of set-off or other remedy upon a Default or an Event of Default.
Grantor hereby waives all right to withdraw funds from the Reserves except as
provided for in this Security Instrument. If an Event of Default shall occur
hereunder or under any other of the Loan Documents Grantee may, without notice
or demand on Grantor, at its option: (A) withdraw any or all of the funds
(including, without limitation, interest) then remaining in the Reserves and
apply the same, after deducting all costs and expenses of safekeeping,
collection and delivery (including, but not limited to, reasonable attorneys’
fees, costs and expenses) to the Debt or any other obligations of Grantor under
the other Loan Documents in such manner as Grantee shall deem appropriate in
its sole discretion, and the excess, if any, shall be paid to Grantor, (B)
exercise any and all rights and remedies of a secured party under any
applicable Uniform Commercial Code, or (C) exercise any other remedies
available at law or in equity. No such use or application of the funds
contained in the Reserves shall be deemed to cure any Default or Event of
Default.


 


(c)                                  The
Reserves shall not, unless otherwise explicitly required by applicable law, be
or be deemed to be escrow or trust funds, but, at Grantee’s option and in
Grantee’s discretion, may either be held in a separate account or be commingled
by Grantee with the general funds of Grantee. The Reserves are solely for the
protection of Grantee and entail no responsibility on Grantee’s part beyond the
payment of the respective items for which they are held following receipt of
bills, invoices or statements therefor in accordance with the terms hereof and
beyond the allowing of due credit for the sums actually received. Upon
assignment of this Security Instrument by Grantee, any funds in the Reserves
shall be turned over to the assignee and any responsibility of Grantee, as
assignor, with respect thereto shall terminate. If the funds in the applicable
Reserve shall exceed the amount of payments actually applied by Grantee for the
purposes and items for which the applicable Reserve is held, such excess may be
credited by Grantee on subsequent payments to be made hereunder or, at the
option of Grantee, refunded to Grantor. If, however, the applicable Reserve
shall not contain sufficient funds to pay the sums required by the dates on
which such sums are required to be on deposit in such account, Grantor shall,
within ten (10) days after receipt of written notice thereof, deposit with
Grantee the full amount of any such deficiency. If Grantor shall fail to
deposit with Grantee the full amount of such deficiency as provided above,
Grantee shall have the option, but not the obligation, to make such deposit,
and all amounts so deposited by Grantee, together with interest thereon at the
Default Interest Rate from the date so deposited by Grantee until actually paid
by Grantor, shall be immediately paid by Grantor on demand and shall be secured
by this Security Instrument and by all of the other Loan Documents securing all
or any part of the Debt. If there is an Event of Default under this Security
Instrument, Grantee may, but shall not be obligated to, apply at any time the
balance then remaining in any or all of the Reserves against the Debt in
whatever order Grantee shall subjectively determine. No such application of any
or all of the Reserves shall be


 


15





















 


deemed to cure any Event
of Default. Upon full payment of the Debt in accordance with its terms or at
such earlier time as Grantee may elect, the balance of any or all of the
Reserves then in Grantee’s possession shall be paid over to Grantor and no
other party shall have any right or claim thereto.


 


1.9                               Casualty
and Condemnation.


 


Grantor shall give
Grantee prompt written notice of the occurrence of any casualty affecting, or
the institution of any proceedings for eminent domain or for the condemnation
of, the Property or any portion thereof. All insurance proceeds on the
Property, and all causes of action, claims, compensation, awards and recoveries
for any damage, condemnation or taking of all or any part of the Property or
for any damage or injury to it for any loss or diminution in value of the
Property, are hereby assigned to and shall be paid to Grantee. Grantee may
participate in any suits or proceedings relating to any such proceeds, causes
of action, claims, compensation, awards or recoveries, and Grantee is hereby
authorized, in its own name or in Grantor’s name, to adjust any loss covered by
insurance or any condemnation claim or cause of action, and to settle or
compromise any claim or cause of action in connection therewith, and Grantor
shall from time to time deliver to Grantee any instruments required to permit
such participation; provided, however, that, so long as no
Default or Event of Default shall have occurred, Grantee shall not have the
right to participate in the adjustment of any loss which is not in excess of
the lesser of (i) five percent (5%) of the then outstanding principal balance
of the Note and (ii) $250,000. Grantee shall apply any sums received by it
under this Section first to the payment of all of its costs and expenses
(including, but not limited to, reasonable legal fees and disbursements)
incurred in obtaining those sums, and then, as follows:


 


(a)                                  In
the event that less than forty percent (40%) of the Improvements located on the
Premises have been taken or destroyed, then if and so long as:


 


(1)                                  no
Default or Event of Default has occurred hereunder or under any of the other
Loan Documents, and


 


(2)                                  the
Property can, in Grantee’s judgment, with diligent restoration or repair, be
returned to a condition at least equal to the condition thereof that existed
prior to the casualty or partial taking causing the loss or damage within the
earlier to occur of (i) nine (9) months after the receipt of insurance proceeds
or condemnation awards by either Grantor or Grantee, and (ii) sixty (60) days
prior to the stated maturity date of the Note, and


 


(3)                                  all
necessary governmental approvals can be obtained to allow the rebuilding and
reoccupancy of the Property as described in Section (a)(2) above,
and


 


(4)                                  there
are sufficient sums available (through insurance proceeds or condemnation
awards and contributions by Grantor, the full amount of which shall, at Grantee’s
option, have been deposited with Grantee) for such restoration or repair (including,
without limitation, for any costs and expenses of Grantee to be incurred in administering
said restoration or repair) and for payment of principal and interest to become
due and payable under the Note during such restoration or repair, and


 


16





















 


(5)                                  the
economic feasibility of the Improvements after such restoration or repair will
be such that income from their operation is reasonably anticipated to be
sufficient to pay operating expenses of the Property and debt service on the
Debt in full with the same coverage ratio considered by Grantee in its
determination to make the loan secured hereby, and


 


(6)                                  in
the event that the insurance proceeds or condemnation awards received as a
result of such casualty or partial taking exceed the lesser of (i) five percent
(5%) of the then outstanding principal balance of the Note and (ii)
$250,000.00, Grantor shall have delivered to Grantee, at Grantor’s sole cost
and expense, an appraisal report in form and substance satisfactory to Grantee
appraising the value of the Property as proposed to be restored or repaired to
be not less than the appraised value of the Property considered by Grantee in
its determination to make the loan secured hereby, and


 


(7)                                  Grantor
so elects by written notice delivered to Grantee within five (5) days after
settlement of the aforesaid insurance or condemnation claim, then, Grantee
shall, solely for the purposes of such restoration or repair, advance so much
of the remainder of such sums as may be required for such restoration or
repair, and any funds deposited by Grantor therefor, to Grantor in the manner
and upon such terms and conditions as would be required by a prudent interim
construction lender, including, but not limited to, the prior approval by Grantee
of plans and specifications, contractors and form of construction contracts and
the furnishing to Grantee of permits, bonds, lien waivers, invoices, receipts
and affidavits from contractors and subcontractors, in form and substance
satisfactory to Grantee in its discretion, with any remainder being applied by
Grantee for payment of the Debt in whatever order Grantee directs in its
absolute discretion.


 


(b)                                 In
all other cases, namely, in the event that forty percent (40%) or more of the
Improvements located on the Premises have been taken or destroyed or Grantor
does not elect to restore or repair the Property pursuant to clause (a)
above or otherwise fails to meet the requirements of clause (a) above,
then, in any of such events, Grantee shall elect, in Grantee’s absolute
discretion and without regard to the adequacy of Grantee’s security, to do
either of the following: (1) accelerate the maturity date of the Note and
declare any and all of the Debt to be immediately due and payable and apply the
remainder of such sums received pursuant to this Section to the payment of
the Debt in whatever order Grantee directs in its absolute discretion, with any
remainder being paid to Grantor, or (2) notwithstanding that Grantor may have
elected not to restore or repair the Property pursuant to the provisions of Section 1.9(a)(7)
above, require Grantor to restore or repair the Property in the manner and upon
such terms and conditions as would be required by a prudent interim
construction lender, including, but not limited to, the deposit by Grantor with
Grantee, within thirty (30) days after demand therefor, of any deficiency
reasonably determined by Grantee to be necessary in order to assure the
availability of sufficient funds to pay for such restoration or repair,
including Grantee’s costs and expenses to be incurred in connection therewith,
the prior approval by Grantee of plans and specifications, contractors and form
of construction contracts and the furnishing to Grantee of permits, bonds, lien
waivers, invoices, receipts and affidavits from contractors and subcontractors,
in form and substance satisfactory to Grantee in its discretion, and apply the
remainder of such sums toward such


 


17





















 


restoration and repair,
with any balance thereafter remaining being applied by Grantee for payment of
the Debt in whatever order Grantee directs in its absolute discretion.


 


Any reduction in the Debt
resulting from Grantee’s application of any sums received by it hereunder shall
take effect only when Grantee actually receives such sums and elects to apply
such sums to the Debt and, in any event, the unpaid portion of the Debt shall
remain in full force and effect and Grantor shall not be excused in the payment
thereof. Partial payments received by Grantee, as described in the preceding
sentence, shall be applied first to the final payment due under the Note and
thereafter to installments due under the Note in the inverse order of their due
date. If Grantor elects or Grantee directs Grantor to restore or repair the
Property after the occurrence of a casualty or partial taking of the Property
as provided above, Grantor shall promptly and diligently, at Grantor’s sole
cost and expense and regardless of whether the insurance proceeds or
condemnation award, as appropriate, shall be sufficient for the purpose,
restore, repair, replace and rebuild the Property as nearly as possible to its
value, condition and character immediately prior to such casualty or partial
taking in accordance with the foregoing provisions and Grantor shall pay to
Grantee all costs and expenses of Grantee incurred in administering said
rebuilding, restoration or repair, provided that Grantee makes such proceeds or
award available for such purpose. Grantor agrees to execute and deliver from
time to time such further instruments as may be requested by Grantee to confirm
the foregoing assignment to Grantee of any award, damage, insurance proceeds,
payment or other compensation. Grantee is hereby irrevocably constituted and
appointed the attorney-intact of Grantor (which power of attorney shall be
irrevocable so long as any portion of the Debt is outstanding, shall be deemed
coupled with an interest, shall survive the voluntary or involuntary
dissolution of Grantor and shall not be affected by any disability or
incapacity suffered by Grantor subsequent to the date hereof), with full power
of substitution, subject to the terms of this Section, to settle for, collect
and receive any such awards, damages, insurance proceeds, payments or other
compensation from the parties or authorities making the same, to appear in and
prosecute any proceedings therefor and to give receipts and acquittances
therefor.


 


1.10                        Construction
Liens.


 


Grantor shall pay
when due all claims and demands of mechanics, materialmen, laborers and others
for any work performed or materials delivered for the Premises or the
Improvements; provided, however, that, Grantor shall have the
right to contest in good faith any such claim or demand, so long as it does so
diligently, by appropriate proceedings and without prejudice to Grantee and
provided that neither the Property nor any interest therein would be in any
danger of sale, loss or forfeiture as a result of such proceeding or contest.
In the event Grantor shall contest any such claim or demand, Grantor shall
promptly notify Grantee of such contest and thereafter shall, upon Grantee’s
request, promptly provide a bond, cash deposit or other security satisfactory
to Grantee to protect Grantee’s interest and security should the contest be
unsuccessful. If Grantor shall fail to immediately discharge or provide
security against any such claim or demand as aforesaid, Grantee may do so and
any and all expenses incurred by Grantee, together with interest thereon at the
Default Interest Rate from the date incurred by Grantee until actually paid by
Grantor, shall be immediately paid by Grantor on demand and shall be secured by
this Security Instrument and by all of the other Loan Documents securing all or
any part of the Debt.


 


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1.11                        Rents
and Profits.


 


As additional and
collateral security for the payment of the Debt and cumulative of any and all
rights and remedies herein provided for, Grantor hereby absolutely and
presently assigns to Grantee all existing and future Rents and Profits. Grantor
hereby grants to Grantee the sole, exclusive and immediate right, without
taking possession of the Property, to demand, collect (by suit or otherwise),
receive and give valid and sufficient receipts for any and all of said Rents
and Profits, for which purpose Grantor does hereby irrevocably make, constitute
and appoint Grantee its attorney-in-fact with full power to appoint substitutes
or a trustee to accomplish such purpose (which power of attorney shall be
irrevocable so long as any portion of the Debt is outstanding, shall be deemed
to be coupled with an interest, shall survive the voluntary or involuntary
dissolution of Grantor and shall not be affected by any disability or
incapacity suffered by Grantor subsequent to the date hereof). Grantee shall be
without liability for any loss which may arise from a failure or inability to
collect Rents, proceeds or other payments. However, until the occurrence of an
Event of Default under this Security Instrument or under any other of the Loan
Documents, Grantor shall have a license to collect, receive, use and enjoy the
Rents and Profits when due and prepayments thereof for not more than one (1)
month prior to due date thereof. Upon the occurrence of an Event of Default,
Grantor’s license shall automatically terminate without notice to Grantor and
Grantee may thereafter, without taking possession of the Property, collect the
Rents and Profits itself or by an agent or receiver. From and after the
termination of such license, Grantor shall be the agent of Grantee in
collection of the Rents and Profits, and all of the Rents and Profits so
collected by Grantor shall be held in trust by Grantor for the sole and
exclusive benefit of Grantee, and Grantor shall, within one (1) business day
after receipt of any Rents and Profits, pay the same to Grantee to be applied
by Grantee as hereinafter set forth. Neither the demand for or collection of
Rents and Profits by Grantee shall constitute any assumption by Grantee of any
obligations under any agreement relating thereto. Grantee is obligated to
account only for such Rents and Profits as are actually collected or received
by Grantee. Grantor irrevocably agrees and consents that the respective payors
of the Rents and Profits shall, upon demand and notice from Grantee of an Event
of Default, pay said Rents and Profits to Grantee without liability to
determine the actual existence of any Event of Default claimed by Grantee.
Grantor hereby waives any right, claim or demand which Grantor may now or
hereafter have against any such payer by reason of such payment of Rents and
Profits to Grantee, and any such payment shall discharge such payor’s
obligation to make such payment to Grantor. All Rents collected or received by
Grantee may be applied against all expenses of collection, including, without
limitation, reasonable attorneys’ fees, against costs of operation and management
of the Property and against the Debt, in whatever order or priority as to any
of the items so mentioned as Grantee directs in its sole subjective discretion
and without regard to the adequacy of its security. Neither the exercise by
Grantee of any rights under this Section nor the application of any Rents
to the Debt shall cure or be deemed a waiver of any Event of Default. The
assignment of Rents and Profits hereinabove granted shall continue in full
force and effect during any period of foreclosure or redemption with respect to
the Property. Grantor has executed an Assignment of Leases and Rents dated of
even date herewith (the “Assignment”) in favor of Grantee covering all
of the right, title and interest of Grantor, as landlord, lessor or licensor,
in and to any Leases. All rights and remedies granted to Grantee under the
Assignment shall be in addition to and cumulative of all rights and remedies
granted to Grantee hereunder.


 


19





















 


1.12                        Leases.


 


(a)                                  Grantor
covenants and agrees that it shall not enter into any Lease affecting 7,500 square
feet or more of the Property or having a term of five (5) years or more without
the prior written approval of Grantee, which approval shall not be unreasonably
withheld. The request for approval of each such proposed new Lease shall be
made to Grantee in writing and shall state that, pursuant to the terms of this
Security Instrument, failure to approve or disapprove such proposed Lease
within fifteen (15) business days is deemed approval and Grantor shall furnish
to Grantee (and any loan servicer specified from time to time by Grantee): (i)
such biographical and financial information about the proposed Tenant as
Grantee may require in conjunction with its review, (ii) a copy of the proposed
form of Lease, and (iii) a summary of the material terms of such proposed Lease
(including, without limitation, rental terms and the term of the proposed lease
and any options). It is acknowledged that Grantee intends to include among its
criteria for approval of any such proposed Lease the following: (i) such Lease
shall be with a bona-fide arm’s-length Tenant; (ii) such Lease shall not
contain any rental or other concessions which are not then customary and
reasonable for similar properties and Leases in the market area of the Premises;
(iii) such Lease shall provide that the Tenant pays for its expenses; (iv) the
rental shall be at least at the market rate then prevailing for similar
properties and leases in the market areas of the Premises; and (v) such Lease
shall contain subordination and attornment provisions in form and content
acceptable to Grantee. Failure of Grantee to approve or disapprove any such proposed
Lease within fifteen (15) business days after receipt of such written request
and all the documents and information required to be furnished to Grantee with
such request shall be deemed approval, provided that the written request for
approval specifically mentioned the same.


 


(b)                                 Prior
to execution of any Leases of space in the Improvements after the date hereof,
Grantor shall submit to Grantee, for Grantee’s prior approval, which approval
shall not be unreasonably withheld, a copy of the form Lease Grantor plans to
use in leasing space in the Improvements or at the Property. All such Leases of
space in the Improvements or at the Property shall be on terms consistent with
the terms for similar leases in the market area of the Premises, shall provide
for free rent only if the same is consistent with prevailing market conditions
and shall provide for market rents then prevailing in the market area of the
Premises. Such Leases shall also provide for security deposits in reasonable
amounts consistent with prevailing market conditions. Grantor shall also submit
to Grantee for Grantee’s approval, which approval shall not be unreasonably
withheld, prior to the execution thereof, any proposed Lease of the
Improvements or any portion thereof that differs materially and adversely from
the aforementioned form Lease. Grantor shall not execute any Lease for all or a
substantial portion of the Property, except for an actual occupancy by the
Tenant, lessee or licensee thereunder, and shall at all times promptly and
faithfully perform, or cause to be performed, all of the covenants, conditions
and agreements contained in all Leases with respect to the Property, now or
hereafter existing, on the part of the landlord, lessor or licensor thereunder
to be kept and performed. Grantor shall furnish to Grantee, within ten (10)
days after a request by Grantee to do so, but in any event by January 1 of
each year, a current Rent Roll, certified by Grantor as being true and correct,
containing the names of all Tenants with respect to the Property, the terms of
their respective Leases, the spaces occupied and the rentals or fees payable
thereunder and the amount of each Tenant’s security deposit. Upon the request
of Grantee, Grantor shall deliver to Grantee a copy of each such Lease. Grantor
shall not do or suffer to be done any act, or omit to take any


 


20





















 


action, that might result
in a default by the landlord, lessor or licensor under any such Lease or allow
the Tenant thereunder to withhold payment of rent or cancel or terminate same
and shall not further assign any such Lease or any such Rents and Profits.
Grantor, at no cost or expense to Grantee, shall enforce, short of termination,
the performance and observance of each and every condition and covenant of each
of the parties under such Leases and Grantor shall not anticipate, discount,
release, waive, compromise or otherwise discharge any rent payable under any of
the Leases. Grantor shall not, without the prior written consent of Grantee,
modify any of the Leases, terminate or accept the surrender of any Leases,
waive or release any other party from the performance or observance of any
obligation or condition under such Leases except, with respect only to Leases
affecting less than 7,500 square feet and having a term of five (5) years or
less, in the normal course of business in a manner which is consistent with
sound and customary leasing and management practices for similar properties in
the community in which the Property is located, Grantor shall not permit the
prepayment of any rents under any of the Leases for more than one (1) month
prior to the due date thereof.


 


(c)                                  Each
Lease executed after the date hereof affecting any of the Premises or the Improvements
must provide, in a manner approved by Grantee, that the Tenant will recognize
as its landlord, lessor or licensor, as applicable, and attorn to any person
succeeding to the interest of Grantor upon any foreclosure of this Security
Instrument or deed in lieu of foreclosure. Each such Lease shall also provide
that, upon request of said successor-in-interest, the Tenant shall execute and
deliver an instrument or instruments confirming its attornment as provided for
in this Section; provided, however, that neither Grantee nor any
successor-in-interest shall be bound by any payment of rent for more than one (1)
month in advance, or any amendment or modification of said Lease made without
the express written consent of Grantee or said successor-in-interest.


 


(d)                                 Upon
the occurrence of an Event of Default under this Security Instrument, whether
before or after the whole principal sum secured hereby is declared to be
immediately due or whether before or after the institution of legal proceedings
to foreclose this Security Instrument, forthwith, upon demand of Grantee,
Grantor shall surrender to Grantee, and Grantee shall be entitled to take
actual possession of, the Property or any part thereof personally, or by its agent
or attorneys. In such event, Grantee shall have, and Grantor hereby gives and
grants to Grantee, the right, power and authority to make and enter into Leases
with respect to the Property or portions thereof for such rents and for such
periods of occupancy and upon conditions and provisions as Grantee may deem
desirable in its sole discretion, and Grantor expressly acknowledges and agrees
that the term of any such Lease may extend beyond the date of any foreclosure
sale of the Property, it being the intention of Grantor that in such event Grantee
shall be deemed to be and shall be the attorney-in-fact of Grantor for the
purpose of making and entering into Leases of parts or portions of the Property
for the rents and upon the terms, conditions and provisions deemed desirable to
Grantee in its sole discretion and with like effect as if such Leases had been
made by Grantor as the owner in fee simple of the Property free and clear of
any conditions or limitations established by this Security Instrument. The
power and authority hereby given and granted by Grantor to Grantee shall be
deemed to be coupled with an interest, shall not be revocable by Grantor so
long as any portion of the Debt is outstanding, shall survive the voluntary or
involuntary dissolution of Grantor and shall not be affected by any disability
or incapacity suffered by Grantor subsequent to the date hereof. In connection
with any action taken by Grantee pursuant to this Section, Grantee shall not be
liable for any loss


 


21





















 


sustained by Grantor
resulting from any failure to let the Property, or any part thereof, or from
any other act or omission of Grantee in managing the Property, nor shall
Grantee be obligated to perform or discharge any obligation, duty or liability
under any Lease covering the Property or any part thereof or under or by reason
of this instrument or the exercise of rights or remedies hereunder. Grantor
shall, and does hereby, indemnify Grantee for, and hold Grantee harmless from,
any and all claims, actions, demands, liabilities, loss or damage which may or
might be incurred by Grantee under any such Lease or under this Security
Instrument or by the exercise of rights or remedies hereunder and from any and
all claims and demands whatsoever which may be asserted against Grantee by
reason of any alleged obligations or undertakings on its part to perform or
discharge any of the terms, covenants or agreements contained in any such Lease
other than those finally determined by a court of competent jurisdiction to
have resulted solely from the gross negligence or willful misconduct of
Grantee. Should Grantee incur any such liability, the amount thereof,
including, without limitation, costs, expenses and reasonable attorneys’ fees,
together with interest thereon at the Default Interest Rate from the date
incurred by Grantee until actually paid by Grantor, shall be immediately due
and payable to Grantee by Grantor on demand and shall be secured hereby and by
all of the other Loan Documents securing all or any part of the Debt. Nothing
in this Section shall impose on Grantee any duty, obligation or
responsibility for the control, care, management or repair of the Property, or
for the carrying out of any of the terms and conditions of any such Lease, nor
shall it operate to make Grantee responsible or liable for any waste committed
on the Property by the Tenants or by any other parties or for any dangerous or
defective condition of the Property, or for any negligence in the management,
upkeep, repair or control of the Property. Grantor hereby assents to, ratifies
and confirms any and all actions of Grantee with respect to the Property taken
under this Section.


 


1.13                        Alienation
and Further Encumbrances.


 


(a)                                  Grantor
acknowledges that Grantee has relied upon the principals of Grantor and their
experience in owning and operating the Property and properties similar to the
Property in connection with the closing of the loan evidenced by the Note.
Accordingly, except as specifically allowed hereinbelow in this Section and
notwithstanding anything to the contrary contained in Section 4.6
hereof, in the event that the Property or any part thereof or interest therein
shall be sold, conveyed, disposed of, alienated, hypothecated, leased (except
to Tenants of space in the Improvements in accordance with the provisions of Section 1.12
hereof), assigned, pledged, mortgaged, further encumbered or otherwise transferred
or Grantor shall be divested of its title to the Property or any interest
therein, in any manner or way, whether voluntarily or involuntarily, without
the prior written consent of Grantee being first obtained, which consent may be
withheld in Grantee’s sole discretion, then the same shall constitute an Event
of Default and Grantee shall have the right, at its option, to declare any or
all of the Debt, irrespective of the maturity date specified in the Note,
immediately due and payable and to otherwise exercise any of its other rights
and remedies contained in Article III hereof. For the purposes of
this Section: (i) in the event either Grantor or any of its general partners or
members is a corporation or trust, the sale, conveyance, transfer, disposition,
alienation, hypothecation or encumbering of more than 10% of the issued and
outstanding capital stock of Grantor or any of its general partners or members
or of the beneficial interest of such trust (or the issuance of new shares of
capital stock in Grantor or any of its general partners or managing members so
that immediately after such issuance (in one or a series of transactions) the
total capital stock then


 


22





















 


issued and outstanding is
more than 110% of the total immediately prior to such issuance) shall be deemed
to be a transfer of an interest in the Property; and (ii) in the event Grantor
or any general partner or managing member of Grantor is a limited or general
partnership, a joint venture or a limited liability company, a change in the
ownership interests in any general partner, any joint venturer or any managing
member, either voluntarily, involuntarily or otherwise, or the sale,
conveyance, transfer, disposition, alienation, hypothecation or encumbering of
all or any portion of the interest of any such general partner, joint venturer
or managing member in Grantor or such general partner or managing member
(whether in the form of a beneficial or partnership interest or in the form of
a power of direction, control or management, or otherwise), shall be deemed to
be a transfer of an interest in the Property. Notwithstanding the foregoing,
however, (i) limited partnership interests in Grantor or in any general partner
or member of Grantor shall be freely transferable without the consent of
Grantee, (ii) any involuntary transfer caused by the death of Grantor or any
general partner, shareholder, joint venturer, member or beneficial owner of a
trust shall not be an Event of Default under this Security Instrument so long
as Grantor is reconstituted, if required, following such death and so long as
those persons responsible for the management of the Property and Grantor remain
unchanged as a result of such death or any replacement management is approved
by Grantee, (iii) gifts for estate planning purposes of any individual’s
interests in Grantor or in any of Grantor’s general partners, managing members
or joint venturers to the spouse or any lineal descendant of such individual,
or to a trust for the benefit of any one or more of such individual, spouse or
lineal descendant, shall not be an Event of Default under this Security
Instrument so long as Grantor is reconstituted, if required, following such
gift and so long as those persons responsible for the management of the
Property and Grantor remain unchanged following such gift or any replacement
management is approved by Grantee and (iv) membership interests in each limited
liability company tenant-in-common entity comprising Grantor or in any general partner
or member of such entity shall be freely transferable without the consent of
Grantee so long as the principal controlling and managing such entity as of the
date hereof remains unchanged following such transfer.


 


(b)                                 Notwithstanding
the foregoing provisions of this Section, Grantee shall consent to a sale,
conveyance or transfer of the Property in its entirety (hereinafter, “a Sale”)
to any person or entity provided that, for each Sale, each of the following
terms and conditions are satisfied;


 


(1)                                  No
Default and no Event of Default is then continuing hereunder or under any of
the other Loan Documents;


 


(2)                                  Grantor
gives Grantee written notice of the terms of such prospective Sale not less
than sixty (60) days before the date on which such Sale is scheduled to close
and, concurrently therewith, gives Grantee all such information concerning the
proposed transferee of the Property (hereinafter, “Buyer”) as Grantee
would require in evaluating an initial extension of credit to a borrower and
pays to Grantee a non-refundable application fee in the amount of $5,000.
Grantee shall have the right to approve or disapprove the proposed Buyer, In
determining whether to give or withhold its approval of the proposed Buyer, Grantee
shall consider the Buyer’s experience and track record in owning and operating facilities
similar to the Property, the Buyer’s financial strength, the Buyer’s general
business standing and the Buyer’s relationships and experience with
contractors, vendors, tenants, lenders and other business entities; provided,
however, that, notwithstanding Grantee’s


 


23





















 


agreement to
consider the foregoing factors in determining whether to give or withhold such
approval, such approval shall be given or withheld based on what Grantee
determines to be commercially reasonable in Grantee’s sole discretion and, if
given, may be given subject to such conditions as Grantee may deem appropriate;


 


(3)                                  Grantor
pays Grantee, concurrently with the closing of such Sale, a non-refundable
assumption fee in an amount equal to all out-of-pocket costs and expenses, including,
without limitation, reasonable attorneys’ fees, incurred by Grantee in
connection with the Sale, plus an amount equal to one half of one percent
(0.5%) of the then outstanding principal balance of the Note for the first Sale
and one percent (1.0%) of the then outstanding principal balance of the Note
for each Sale after the First Sale;


 


(4)                                  The
Buyer assumes and agrees to pay the Debt subject to the provisions of Section 4.27
hereof and, prior to or concurrently with the closing of such Sale, the Buyer executes,
without any cost or expense to Grantee, such documents and agreements as Grantee
shall reasonably require to evidence and effectuate said assumption and
delivers such legal opinions as Grantee may require;


 


(5)                                  A
party associated with the Buyer approved by Grantee in its sole discretion assumes
the obligations of the current Indemnitor under its guaranty or indemnity
agreement and such party associated with the Buyer executes, without any cost
or expense to Grantee, a new guaranty or indemnity agreement in form and
substance satisfactory to Grantee and delivers such legal opinions as Grantee
may require;


 


(6)                                  Grantor
and the Buyer execute, without any cost or expense to Grantee, new financing
statements or financing statement amendments and any additional documents reasonably
requested by Grantee;


 


(7)                                  Grantor
delivers to Grantee, without any cost or expense to Grantee, such endorsements
to Grantee’s title insurance policy, hazard insurance policy endorsements or certificates
and other similar materials as Grantee may deem necessary at the time of the Sale,
all in form and substance satisfactory to Grantee, including, without
limitation, an endorsement or endorsements to Grantee’s title insurance policy
insuring the lien of this Security Instrument, extending the effective date of
such policy to the date of execution and delivery (or, if later, of recording)
of the assumption agreement referenced above in subparagraph (4) of this
Section, with no additional exceptions added to such policy, and insuring that
fee simple title to the Property is vested in the Buyer;


 


(8)                                  Grantor
executes and delivers to Grantee, without any cost or expense to Grantee, a
release of Grantee, its officers, directors, employees and agents, from all
claims and liability relating to the transactions evidenced by the Loan
Documents, through and including the date of the closing of the Sale, which
agreement shall be in form and substance satisfactory to Grantee and shall be
binding upon the Buyer;


 


(9)                                  Subject
to the provisions of Section 4.27 hereof, such Sale is not
construed so as to relieve Grantor of any personal liability under the Note or
any of the other Loan


 


24





















 


Documents for any
acts or events occurring or obligations arising prior to or simultaneously with
the closing of such Sale, whether or not same is discovered prior or subsequent
to the closing of such Sale, and Grantor executes, without any cost or expense
to Grantee, such documents and agreements as Grantee shall reasonably require
to evidence and effectuate the ratification of said personal liability. Grantor
shall be released from and relieved of any personal liability under the Note or
any of the other Loan Documents for any acts or events occurring or obligations
arising after the closing of such Sale which are not caused by or arising out
of any acts or events occurring or obligations arising prior to or simultaneously
with the closing of such Sale, and


 


(10)                            Such
Sale is not construed so as to relieve any current Indemnitor of its
obligations under any guaranty or indemnity agreement for any acts or events
occurring or obligations arising prior to or simultaneously with the closing of
such Sale, and each such current Indemnitor executes, without any cost or
expense to Grantee, such documents and agreements as Grantee shall reasonably
require to evidence and effectuate the ratification of each such guaranty and
indemnity agreement. Each such current Indemnitor shall be released from and
relieved of any of its obligations under any guaranty or indemnity agreement
executed in connection with the loan secured hereby for any acts or events
occurring or obligations arising after the closing of such Sale which are not
caused by or arising out of any acts or events occurring or obligations arising
prior to or simultaneously with the closing of such Sale.


 


(c)                                  Notwithstanding
the foregoing to the contrary, Grantor shall have the right to obtain
subordinate financing on the Property secured by interests in the Grantor
provided (i) the subordinate lender executes a subordination and standstill
agreement acceptable to Grantee in its sole discretion, (ii) the Property with
such subordinate financing (A) supports a minimum debt service coverage ratio
of 1.15:1, as determined by Lender in its sole discretion and (B) does not have
a loan-to-value ratio in excess of 85%, as determined by an independent MAI
appraisal at Grantor’s expense, subject to review and approval by Grantee and
(iii) Grantor or subsequent Buyer reimburses Grantee for all reasonable costs
and expenses incurred by Grantee in connection with and directly related to
such subordinate financing. In addition, a subsequent Buyer may obtain
subordinate financing on the Property secured by interests in such Buyer
provided the Property with such subordinated financing does not exceed a loan
to acquisition price of 85%. Subordinate financing obtained by a subsequent
Buyer may be secured by a subordinate lien on the Property if the conditions
set forth in this Section 1.13(c)(i), (ii) (A) and (B) and (iii) are
satisfied.


 


1.14                        Payment
of Utilities. Assessments, Charges, Etc.


 


Grantor shall pay
when due all utility charges which are incurred by Grantor or which may become
a charge or lien against any portion of the Property for gas, electricity,
water and sewer services furnished to the Premises and/or the Improvements and
all other assessments or charges of a similar nature, or assessments payable
pursuant to any restrictive covenants, whether public or private, affecting the
Premises and/or the Improvements or any portion thereof, whether or not such
assessments or charges are or may become liens thereon.


 


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1.15                        Access
Privileges and Inspections.


 


Grantee and the
agents, representatives and employees of Grantee shall, subject to the rights
of Tenants, have full and free access to the Premises and the Improvements and
any other location where books and records concerning the Property are kept at
all reasonable times and, except in the event of an emergency, upon not less
than 24 hours prior notice (which notice may be telephonic) for the purposes of
inspecting the Property and of examining, copying and making extracts from the
books and records of Grantor relating to the Property. Grantor shall lend
assistance to all such agents, representatives and employees of Grantee.


 


1.16                        Waste;
Alteration of Improvements.


 


Grantor shall not
commit, suffer or permit any waste on the Property nor take any actions that
might invalidate any insurance carried on the Property. Grantor shall maintain
the Property in good condition and repair. No part of the Improvements may be
removed, demolished or materially altered, without the prior written consent of
Grantee. Without the prior written consent of Grantee, Grantor shall not
commence construction of any improvements on the Premises other than
improvements required for the maintenance or repair of the Property.


 


1.17                        Zoning.


 


Without the prior
written consent of Grantee, Grantor shall not seek, make, suffer, consent to or
acquiesce in any change in the zoning or conditions of use of the Premises or
the Improvements. Grantor shall comply with and make all payments required
under the provisions of any covenants, conditions or restrictions affecting the
Premises or the Improvements. Grantor shall comply with all existing and future
requirements of all governmental authorities having jurisdiction over the
Property. Grantor shall keep all licenses, permits, franchises and other
approvals necessary for the operation of the Property in full force and effect.
Grantor shall operate the Property as a retail shopping center for so long as
the Debt is outstanding. If, under applicable zoning provisions, the use of all
or any part of the Premises or the Improvements is or becomes a nonconforming
use, Grantor shall not cause or permit such use to be discontinued or abandoned
without the prior written consent of Grantee. Further, without Grantee’s prior
written consent, Grantor shall not file or subject any part of the Premises or
the Improvements to any declaration of condominium or co-operative or convert
any part of the Premises or the Improvements to a condominium, co-operative or
other form of multiple ownership and governance.


 


1.18                        Financial
Statements and Books and Records.


 


Grantor shall keep
accurate books and records of account of the Property and its own financial
affairs sufficient to permit the preparation of financial statements therefrom
in accordance with generally accepted accounting principles. Grantee and its
duly authorized representatives shall have the right to examine, copy and audit
Grantor’s records and books of account at all reasonable times. So long as this
Security Instrument continues in effect, Grantor shall provide to Grantee, in
addition to any other financial statements required hereunder or under any of
the other Loan Documents, the following financial statements and information,
all


 


26





















 


of which must be
certified to Grantee as being true and correct by Grantor or the person or
entity to which they pertain, as applicable, and be prepared in accordance with
generally accepted accounting principles consistently applied and be in form
and substance acceptable to Grantee:


 


(a)                                  copies
of all tax returns filed by Grantor, within thirty (30) days after the date of filing;


 


(b)                                 monthly
operating statements for the Property, within fifteen (15) days after the end
of each of the first (1st) twelve (12) calendar months following the date
hereof; and


 


(c)                                  quarterly
operating statements for the Property, within thirty (30) days after the end of
each March, June, September and December commencing with the first (1st)
of such months to occur following the first (1st) anniversary of the date
hereof;


 


(d)                                 annual
balance sheets for the Property and annual financial statements for Grantor,
each principal or general partner in Grantor, and each Indemnitor, within
ninety (90) days after the end of each calendar year;


 


(e)                                  such
other information with respect to the Property, Grantor, the principals or general
partners in Grantor, and each Indemnitor, which may be reasonably requested
from time to time by Grantee, within a reasonable time after the applicable
request.


 


If any of the
aforementioned materials are not furnished to Grantee within the applicable
time periods or Grantee has a reasonable basis to be dissatisfied with the
contents of any of the foregoing and has notified Grantor of its
dissatisfaction, in addition to any other rights and remedies of Grantee
contained herein, (i) Grantor shall pay to Grantee upon demand, at Grantee’s
option and in its sole discretion, an amount equal to $10,000 for each of the
aforementioned materials that is not delivered in accordance with general
accepted accounting principles, provided Grantee has given Grantor at least 30
days prior notice of such failure, and (ii) Grantee shall have the right, but
not the obligation, to obtain the same by means of an audit by an independent
certified public accountant selected by Grantee, in which event Grantor agrees
to pay, or to reimburse Grantee for, any expense of such audit and further
agrees to provide all necessary information to said accountant and to otherwise
cooperate in the making of such audit.


 


1.19                        Further
Documentation.


 


Grantor shall, on
the request of Grantee and at the expense of Grantor: (a) promptly correct any
defect, error or omission which may be discovered in the contents of this
Security Instrument or in the contents of any of the other Loan Documents; (b)
promptly execute, acknowledge, deliver and record or file such further
instruments (including, without limitation, further mortgages, deeds of trust,
security deeds, security agreements, financing statements, continuation
statements and assignments of rents or leases) and promptly do such further
acts as may be necessary, desirable or proper to carry out more effectively the
purposes of this Security Instrument and the other Loan Documents and to
subject to the liens and security interests hereof and thereof any property
intended by the terms hereof and thereof to be covered hereby and thereby,
including specifically, but without limitation, any renewals, additions, substitutions,


 


27





















 


replacements or
appurtenances to the Property; (c) promptly execute, acknowledge, deliver,
procure and record or file any document or instrument (including specifically,
without limitation, any financing statement) deemed advisable by Grantee to
protect, continue or perfect the liens or the security interests hereunder
against the rights or interests of third persons; and (d) promptly furnish to
Grantee, upon Grantee’s request, a duly acknowledged written statement and
estoppel certificate addressed to such party or parties as directed by Grantee
and in form and substance supplied by Grantee, setting forth all amounts due
under the Note, stating whether any Default or Event of Default has occurred
hereunder, stating whether any offsets or defenses exist against the Debt and
containing such other matters as Grantee may reasonably require.


 


1.20                        Payment
of Costs; Reimbursement to Grantee.


 


Grantor shall pay
all costs and expenses of every character reasonably incurred in connection
with the closing of the loan evidenced by the Note and secured hereby or
otherwise attributable or chargeable to Grantor as the owner of the Property,
including, without limitation, appraisal fees, recording fees, documentary,
stamp, mortgage or intangible taxes, brokerage fees and commissions, title
policy premiums and title search fees, uniform commercial code/tax
lien/litigation search fees, escrow fees and reasonable attorneys’ fees. If
Grantor defaults in any such payment, which default is not cured within any
applicable grace or cure period, Grantee may pay the same and Grantor shall
reimburse Grantee on demand for all such costs and expenses incurred or paid by
Grantee, together with such interest thereon at the Default Interest Rate from
and after the date of Grantee’s making such payment until reimbursement thereof
by Grantor. Any such sums disbursed by Grantee, together with such interest
thereon, shall be additional indebtedness of Grantor secured by this Security Instrument
and by all of the other Loan Documents securing all or any part of the Debt.
Further, Grantor shall promptly notify Grantee in writing of any litigation or
threatened litigation affecting the Property, or any other demand or claim
which, if enforced, could impair or threaten to impair Grantee’s security
hereunder. Without limiting or waiving any other rights and remedies of Grantee
hereunder, if Grantor fails to perform any of its covenants or agreements
contained in this Security Instrument or in any of the other Loan Documents and
such failure is not cured within any applicable grace or cure period, or if any
action or proceeding of any kind (including, but not limited to, any
bankruptcy, insolvency, arrangement, reorganization or other debtor relief
proceeding) is commenced which might affect Grantee’s interest in the Property
or Grantee’s right to enforce its security, then Grantee may, at its option,
with or without notice to Grantor, make any appearances, disburse any sums and
take any actions as may be necessary or desirable to protect or enforce the
security of this Security Instrument or to remedy the failure of Grantor to
perform its covenants and agreements (without, however, waiving any default of
Grantor). Grantor agrees to pay on demand all expenses of Grantee incurred with
respect to the foregoing (including, but not limited to, reasonable fees and
disbursements of counsel), together with interest thereon at the Default
Interest Rate from and after the date on which Grantee incurs such expenses
until reimbursement thereof by Grantor. Any such expenses so incurred by
Grantee, together with interest thereon as provided above, shall be additional
indebtedness of Grantor secured by this Security Instrument and by all of the
other Loan Documents securing all or any part of the Debt. The necessity for
any such actions and of the amounts to be paid shall be determined by Grantee
in its discretion. Grantee is hereby empowered to enter and to authorize others
to enter upon the Property or any part thereof for the purpose of performing or
observing


 


28





















 


any such defaulted term,
covenant or condition without thereby becoming liable to Grantor or any person
in possession holding under Grantor. Grantor hereby acknowledges and agrees
that the remedies set forth in this Section 1.20 shall be
exercisable by Grantee, and any 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 with interest thereon at the
Default Interest Rate, notwithstanding the fact that such remedies were
exercised and such payments made and costs incurred by Grantee after the filing
by Grantor of a voluntary case or the filing against Grantor of an involuntary
case pursuant to or within the meaning of the Bankruptcy Reform Act of 1978, as
amended, Title 11 U.S.C., or after any similar action pursuant to any other
debtor relief law (whether statutory, common law, case law or otherwise) of any
jurisdiction whatsoever, now or hereafter in effect, which may be or become
applicable to Grantor, Grantee, any Indemnitor, the Debt or any of the Loan
Documents. Grantor hereby indemnifies and holds Grantee harmless from and
against all loss, cost and expenses with respect to any Event of Default
hereof, any liens (i.e., judgments, mechanics’ and materialmen’s liens, or
otherwise), charges and encumbrances filed against the Property, and from any
claims and demands for damages or injury, including claims for property damage,
personal injury or wrongful death, arising out of or in connection with any
accident or fire or other casualty on the Premises or the Improvements or any
nuisance made or suffered thereon, except those that are due to Grantee’s gross
negligence or willful misconduct as finally determined by a court of competent
jurisdiction, including, without limitation, in any case, reasonable attorneys’
fees, costs and expenses as aforesaid, whether at pretrial, trial or appellate
level, and such indemnity shall survive payment in full of the Debt. This Section shall
not be construed to require Grantee to incur any expenses, make any appearances
or take any actions.


 


1.21                        Security
Interest.


 


This Security
Instrument is also intended to encumber and create a security interest in, and
Grantor hereby grants to Grantee a security interest in, all sums on deposit
with Grantee pursuant to the provisions of Section 1.6, Section 1.7,
Section 1.8 and Section 1.34 hereof or any other Section hereof
or of any other Loan Document and all fixtures, chattels, accounts, equipment,
inventory, contract rights, general intangibles and other personal property
included within the Property, all renewals, replacements of any of the
aforementioned items, or articles in substitution therefor or in addition
thereto or the proceeds thereof (said property is hereinafter referred to
collectively as the “Collateral”), whether or not the same shall be
attached to the Premises or the Improvements in any manner. It is hereby agreed
that to the extent permitted by law, all of the foregoing property is to be
deemed and held to be a part of and affixed to the Premises and the
Improvements. The foregoing security interest shall also cover Grantor’s
leasehold interest in any of the foregoing property which is leased by Grantor.
Notwithstanding the foregoing, all of the foregoing property shall be owned by
Grantor and no leasing or installment sales or other financing or title
retention agreement in connection therewith shall be permitted without the
prior written approval of Grantee. Grantor shall, from time to time upon the
request of Grantee, supply Grantee with a current inventory of all of the
property in which Grantee is granted a security interest hereunder, in such
detail as Grantee may reasonably require. Grantor shall promptly replace all of
the Collateral subject to the lien or security interest of this Security
Instrument when worn or obsolete with Collateral comparable to the worn out or
obsolete Collateral when new and will not, without the prior written consent of
Grantee, remove


 


29





















 


from the Premises or the Improvements any of the
Collateral subject to the lien or security interest of this Security Instrument
except such as is replaced by an article of equal suitability and value as
above provided, owned by Grantor free and clear of any lien or security
interest except that created by this Security Instrument and the other Loan
Documents. All of the Collateral shall be kept at the location of the Premises
except as otherwise required by the terms of the Loan Documents. Grantor shall
not use any of the Collateral in violation of any applicable statute, ordinance
or insurance policy.


 


Grantor warrants that (i) Grantor’s (that is, “Debtor’s”) name,
identity or organizational structure, and residence or principal place of
business are as set forth in Exhibit B attached hereto; (ii) Grantor
(that is, “Debtor”) has been using or operating under said name, identity or
organizational structure without change from the date of its formation; and
(iii) the location of the collateral is upon the Land. Grantor covenants and
agrees that Grantor will furnish Grantee with notice of any change in the
matters addressed by clauses (i) and (iii) of this paragraph within thirty (30)
days of the effective date of any such change and Grantor will promptly execute
any financing statements or other instruments deemed necessary by Grantee to
prevent any filed financing statement from becoming misleading or losing its
perfected status.


 


1.22                        Security
Agreement.


 


This Security Instrument constitutes a security agreement between
Grantor and Grantee with respect to the Collateral in which Grantee is granted
a security interest hereunder, and, cumulative of all other rights and remedies
of Grantee hereunder, Grantee shall have all of the rights and remedies of a
secured party under any applicable Uniform Commercial Code. Grantor hereby
agrees to execute and deliver on demand and hereby irrevocably constitutes and
appoints Grantee the attorney-in-fact of Grantor to execute and deliver and, if
appropriate, to file with the appropriate filing officer or office, such
security agreements, financing statements, continuation statements or other
instruments as Grantee may request or require in order to impose, perfect or
continue the perfection of the lien or security interest created hereby. To the
extent specifically provided herein, Grantee shall have the right of possession
of all cash, securities, instruments, negotiable instruments, documents,
certificates and any other evidences of cash or other property or evidences of
rights to cash rather than property, which are now or hereafter a part of the
Property, and Grantor shall promptly deliver the same to Grantee, endorsed to
Grantee, without further notice from Grantee. Grantor agrees to furnish Grantee
with notice of any change in the name, identity, organizational structure,
residence, or principal place of business or mailing address of Grantor within
ten (10) days of the effective date of any such change. Upon the occurrence of
any Event of Default, Grantee shall have the rights and remedies as prescribed
in this Security Instrument, or as prescribed by general law, or as prescribed
by any applicable Uniform Commercial Code, all at Grantee’s election. Any
disposition of the Collateral may be conducted by an employee or agent of
Grantee. Any person, including both Grantor and Grantee, shall be eligible to
purchase any part or all of the Collateral at any such disposition. Expenses of
retaking, holding, preparing for sale, selling or the like (including, without
limitation, Grantee’s reasonable attorneys’ fees and legal expenses), together
with interest thereon at the Default Interest Rate from the date incurred by
Grantee until actually paid by Grantor, shall be paid by Grantor on demand and
shall be secured by this Security Instrument and by all of the other Loan
Documents securing all or any part of the Debt. Grantee shall have


 


30





















 


the right to enter upon the Premises and the
Improvements or any real property where any of the property which is the
subject of the security interest granted herein is located to take possession
of, assemble and collect the same or to render it unusable, or Grantor, upon
demand of Grantee, shall assemble such property and make it available to Grantee
at the Premises, or at a place which is mutually agreed upon or, if no such
place is agreed upon, at a place reasonably designated by Grantee to be
reasonably convenient to Grantee and Grantor. If notice is required by law,
Grantee shall give Grantor at least ten (10) days’ prior written notice of the
time and place of any public sale of such property, or adjournments thereof, or
of the time of or after which any private sale or any other intended
disposition thereof is to be made, and if such notice is sent to Grantor, as
the same is provided for the mailing of notices herein, it is hereby deemed
that such notice shall be and is reasonable notice to Grantor. No such notice
is necessary for any such property which is perishable, threatens to decline speedily
in value or is of a type customarily sold on a recognized market. Any sale made
pursuant to the provisions of this Section shall be deemed to have been a
public sale conducted in a commercially reasonable manner if held
contemporaneously with a foreclosure sale as provided in Section 3.1(e)
hereof upon giving the same notice with respect to the sale of the Property
hereunder as is required under said Section 3.l(e). Furthermore, to the
extent permitted by law, in conjunction with, in addition to or in substitution
for the rights and remedies available to Grantee pursuant to any applicable
Uniform Commercial Code:


 


(a)                                  In
the event of a foreclosure sale, the Property may, at the option of Grantee, be
sold as a whole; and


 


(b)                                 It
shall not be necessary that Grantee take possession of the aforementioned Collateral,
or any part thereof, prior to the time that any sale pursuant to the provisions
of this Section is conducted and it shall not be necessary that said
Collateral, or any part thereof, be present at the location of such sale; and


 


(c)                                  Grantee
may appoint or delegate any one or more persons as agent to perform any act or
acts necessary or incident to any sale held by Grantee, including the sending
of notices and the conduct of the sale, but in the name and on behalf of
Grantee.


 


The names and addresses of Grantor (as Debtor under any applicable
Uniform Commercial Code) are set forth on Exhibit B attached hereto.


 


The name and address of Grantee (as Secured Party under any applicable
Uniform Commercial Code) are:


 


	
    

   	
    

   	
   Wachovia Bank, National Association

   	
    

   	
    

   
	
   

  	
   

  	
  201 South Tryon Street, Suite 130,

  	
   

  	
   

  
	
   

  	
   

  	
  PMB Box #4

  	
   

  	
   

  
	
   

  	
   

  	
  Loan Number 50-2753516

  	
   

  	
   

  
	
   

  	
   

  	
  Charlotte, North Carolina 28202

  	
   

  	
   

  



 


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1.23                        Easements
and Rights-of-Way.


 


Grantor shall not grant any easement or right-of-way with respect to
all or any portion of the Premises or the Improvements without the prior
written consent of Grantee. The purchaser at any foreclosure sale hereunder
may, at its discretion, disaffirm any easement or right-of-way granted in
violation of any of the provisions of this Security Instrument and may take
immediate possession of the Property free from, and despite the terms of, such
grant of easement or right-of-way. If Grantee consents to the grant of an
easement or right-of-way, Grantee agrees to grant such consent without charge
to Grantor other than expenses, including, without limitation, reasonable
attorneys’ fees, incurred by Grantee in the review of Grantor’s request and in
the preparation of documents effecting the subordination.


 


1.24                        Compliance
with Laws.


 


Grantor shall at all times comply with all statutes, ordinances,
regulations and other governmental or quasi-governmental requirements and
private covenants now or hereafter relating to the ownership, construction, use
or operation of the Property, including, but not limited to, those concerning
employment and compensation of persons engaged in operation and maintenance of
the Property and any environmental or ecological requirements, even if such
compliance shall require structural changes to the Property; provided, however,
that, Grantor may, upon providing Grantee with security satisfactory to
Grantee, proceed diligently and in good faith to contest the validity or
applicability of any such statute, ordinance, regulation or requirement so long
as during such contest the Property shall not be subject to any lien, charge,
fine or other liability and shall not be in danger of being forfeited, lost or
closed. Grantor shall not use or occupy, or allow the use or occupancy of, the
Property in any manner which violates any Lease of or any other agreement
applicable to the Property or any applicable law, rule, regulation or order or
which constitutes a public or private nuisance or which makes void, voidable or
cancelable, or increases the premium of, any insurance then in force with
respect thereto.


 


1.25                        Additional
Taxes.


 


In the event of the enactment after the date hereof of any law of the
state in which the Property is located or of any other governmental entity
deducting from the value of the Property for the purpose of taxing any lien or
security interest thereon, or imposing upon Grantee the payment of the whole or
any part of the taxes or assessments or charges or liens herein required to be
paid by Grantor, or changing in any way the laws relating to the taxation of
deeds of trust, mortgages or security agreements or debts secured by deeds of
trust, mortgages or security agreements or the interest of the Grantee,
mortgagee or secured party in the property covered thereby, or the manner of
collection of such taxes, so as to adversely affect this Security Instrument or
the Debt or Grantee, then, and in any such event, Grantor, upon demand by
Grantee, shall pay such taxes, assessments, charges or liens, or reimburse
Grantee therefor; provided, however, that if in the
opinion of counsel for Grantee (a) it might be unlawful to require Grantor to
make such payment, or (b) the making of such payment might result in the
imposition of interest beyond the maximum amount permitted by law, then and in
either such event, Grantee may elect, by notice in writing given to Grantor, to
declare all of the Debt to be


 


32





















 


and become due and payable in full thirty (30) days
from the giving of such notice, and, in connection with the payment of such
Debt, no prepayment premium or fee shall be due unless, at the time of such
payment, an Event of Default or a Default shall have occurred, which Default or
Event of Default is unrelated to the provisions of this Section 1.25, in
which event any applicable prepayment premium or fee in accordance with the
terms of the Note shall be due and payable.


 


1.26                        Secured
Indebtedness.


 


It is understood and agreed that this Security Instrument shall secure
payment of not only the indebtedness evidenced by the Note but also any and all
substitutions, replacements, renewals and extensions of the Note, any and all
indebtedness and obligations arising pursuant to the terms hereof and any and
all indebtedness and obligations arising pursuant to the terms of any of the
other Loan Documents, all of which indebtedness is equally secured with and has
the same priority as any amounts advanced as of the date hereof. It is agreed
that any future advances made by Grantee to or for the benefit of Grantor from
time to time under this Security Instrument or the other Loan Documents and
whether or not such advances are obligatory or are made at the option of
Grantee, or otherwise, made for any purpose, within twenty (20) years from the
date hereof, and all interest accruing thereon, shall be equally secured by
this Security Instrument and shall have the same priority as all amounts, if
any, advanced as of the date hereof and shall be subject to all of the terms
and provisions of this Security Instrument.


 


1.27                        Grantor’s
Waivers.


 


To the full extent permitted by law, Grantor agrees that Grantor shall
not at any time insist upon, plead, claim or take the benefit or advantage of
any law now or hereafter in force providing for any appraisement, valuation,
stay, moratorium or extension, or any law now or hereafter in force providing
for the reinstatement of the Debt prior to any sale of the Property to be made
pursuant to any provisions contained herein or prior to the entering of any
decree, judgment or order of any court of competent jurisdiction, or any right
under any statute to redeem all or any part of the Property so sold. Grantor,
for Grantor and Grantor’s successors and assigns, and for any and all persons
ever claiming any interest in the Property, to the full extent permitted by
law, hereby knowingly, intentionally and voluntarily, with and upon the advice
of competent counsel: (a) waives, releases, relinquishes and forever forgoes
all rights of valuation, appraisement, stay of execution, reinstatement and
notice of election or intention to mature or declare due the Debt (except such
notices as are specifically provided for herein); (b) waives, releases,
relinquishes and forever forgoes all right to a marshaling of the assets of
Grantor, including the Property, to a sale in the inverse order of alienation,
or to direct the order in which any of the Property shall be sold in the event
of foreclosure of the liens and security interests hereby created and agrees
that any court having jurisdiction to foreclose such liens and security
interests may order the Property sold as an entirety; and (c) waives, releases,
relinquishes and forever forgoes all rights and periods of redemption provided
under applicable law. To the full extent permitted by law, Grantor shall not
have or assert any right under any statute or rule of law pertaining to the
exemption of homestead or other exemption under any federal, state or local law
now or hereafter in effect, the administration of estates of decedents or other
matters whatever to defeat, reduce or affect the right of Grantee under the
terms of this Security Instrument to a sale of the Property, for the collection
of the Debt without any prior or different


 


33





















 


resort for collection, or the right of Grantee under
the terms of this Security Instrument to the payment of the Debt out of the
proceeds of sale of the Property in preference to every other claimant
whatever. Furthermore, Grantor hereby knowingly, intentionally and voluntarily,
with and upon the advice of competent counsel, waives, releases, relinquishes
and forever forgoes all present and future statutes of limitations as a defense
to any action to enforce the provisions of this Security Instrument or to
collect any of the Debt to the fullest extent permitted by law. Grantor
covenants and agrees that upon the commencement of a voluntary or involuntary
bankruptcy proceeding by or against Grantor, Grantor shall not seek a
supplemental stay or otherwise shall not seek pursuant to 11 U.S.C. §105 or any
other provision of the Bankruptcy Reform Act of 1978, as amended, or any other
debtor relief law (whether statutory, common law, case law, or otherwise) of
any jurisdiction whatsoever, now or hereafter in effect, which may be or become
applicable, to stay, interdict, condition, reduce or inhibit the ability of
Grantee to enforce any rights of Grantee against any guarantor or indemnitor of
the secured obligations or any other party liable with respect thereto by
virtue of any indemnity, guaranty or otherwise.


 


1.28                        SUBMISSION
TO JURISDICTION; WAIVER OF JURY TRIAL.


 


(a)                                  GRANTOR,
TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND
VOLUNTARILY, AFTER CONSULTING WITH COUNSEL, (i) SUBMITS TO PERSONAL
JURISDICTION IN THE STATE IN
WHICH THE PREMISES IS LOCATED OVER ANY SUIT, ACTION OR PROCEEDING BY ANY PERSON
ARISING FROM OR RELATING TO THE NOTE, THIS SECURITY INSTRUMENT OR ANY OTHER OF
THE LOAN DOCUMENTS, (ii) AGREES THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SITTING IN THE
COUNTY IN WHICH THE PREMISES IS LOCATED, (iii) SUBMITS TO THE JURISDICTION OF
SUCH COURTS, AND (iv) TO THE FULLEST EXTENT PERMITTED BY LAW, AGREES THAT IT
WILL NOT BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM (BUT NOTHING
HEREIN SHALL AFFECT THE RIGHT OF GRANTEE TO BRING ANY ACTION, SUIT OR
PROCEEDING IN ANY OTHER FORUM).


 


(b)                                 GRANTOR,
TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND
VOLUNTARILY, AFTER CONSULTING WITH COUNSEL, WAIVES, RELINQUISHES AND FOREVER
FORGOES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON,
ARISING OUT OF, OR IN ANY WAY RELATING TO THE DEBT OR ANY CONDUCT, ACT OR OMISSION OF GRANTEE OR GRANTOR, OR ANY OF
THEIR RESPECTIVE DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR
ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH GRANTEE OR GRANTOR, IN EACH OR
THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.


 


1.29                        Attorney-in-Fact
Provisions.


 


With respect to any provision of this Security Instrument or any other
Loan Document whereby Grantor grants to Grantee a power-of-attorney, provided
no Default or Event of Default has occurred under this Security Instrument,
Grantee shall first give Grantor written notice at


 


34





















 


least three (3) days prior to acting under such power,
which notice shall demand that Grantor first take the proposed action within
such period and advising Grantor that if it fails to do so, Grantee will so act
under the power; provided, however, that, in the event that a Default or an
Event of Default has occurred, or if necessary to prevent imminent death,
serious injury, damage, loss, forfeiture or diminution in value to the Property
or any surrounding property or to prevent any adverse affect on Grantee’s
interest in the Property, Grantee may act immediately and without first giving
such notice. In such event, Grantee will give Grantor notice of such action as
soon thereafter as reasonably practical.


 


1.30                        Management.


 


The management of the Property shall be by either: (a) Grantor or an
entity affiliated with Grantor approved by Grantee for so long as Grantor or
said affiliated entity is managing the Property in a first class manner; or (b)
a professional property management company approved by Grantee. Such management
by an affiliated entity or a professional property management company shall be
pursuant to a written agreement approved by Grantee. In no event shall any
manager be removed or replaced or the terms of any management agreement
modified or amended without the prior written consent of Grantee. After an
Event of Default or a default under any management contract then in effect,
which default is not cured within any applicable grace or cure period, Grantee
shall have the right to terminate, or to direct Grantor to terminate, such
management contract upon thirty (30) days’ notice and to retain, or to direct
Grantor to retain, a new management agent approved by Grantee. All Rents and
Profits generated by or derived from the Property shall first be utilized
solely for current expenses directly attributable to the ownership and
operation of the Property, including, without limitation, current expenses
relating to Grantor’s liabilities and obligations with respect to this Security
Instrument and the other Loan Documents, and none of the Rents and Profits
generated by or derived from the Property shall be diverted by Grantor and
utilized for any other purposes unless all such current expenses attributable
to the ownership and operation of the Property have been fully paid and
satisfied.


 


1.31                        Hazardous
Waste and Other Substances.


 


(a)                                  Grantor
hereby represents and warrants to Grantee that, as of the date hereof, to the
best of Grantor’s knowledge, information and belief, and except as set forth in
that certain Phase I Environmental Site Assessment dated October 4, 2002 and
prepared by EPIC Engineering Inc.; (i) none of Grantor nor the Property nor any
Tenant at the Premises nor the operations conducted thereon is in direct or
indirect violation of or otherwise exposed to any liability under any local,
state or federal law, rule or regulation or common law duty pertaining to human
health, natural resources or the environment, including, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act of
1980 (42 U.S.C. §9601 et  seq.) (“CERCLA”), the Resource
Conservation and Recovery Act of 1976 (42 U.S.C. §6901 et  seq.) (“RCRA”),
the Federal Water Pollution Control Act (33 U.S.C. §1251 et  seq.),
the Clean Air Act (42 U.S.C. §7401 et seq.), the Emergency Planning and
Community-Right-to-Know Act (42 U.S.C. §11001 et  seq.), the
Endangered Species Act (16 U.S.C. §1531 et seq.), the Toxic Substances Control
Act (15 U.S.C. §2601 et seq.), the Occupational Safety and Health Act (29
U.S.C. §651 et  seq.) and the Hazardous Materials Transportation
Act (49 U.S.C. §1801 et


 


35





















 


seq.),
the Georgia Hazardous Waste Management Act, as amended, O.C.G.A. § 12-8-60 et
seq., the Georgia Oil or Hazardous Materials Spills or Releases Act, as
amended, O.C.G.A. § 12-14-1 et  seq., the Georgia Comprehensive
Solid Waste Management Act, as amended, O.C.G.A. § 12-8-20 et  seq.,
the Georgia Asbestos Safety Act, as amended, O.C.G.A. § 12-12-1 et  seq.,
the Georgia Underground Storage Tank Act, as amended, O.C.G.A. § 12-13-1 et
seq., the Georgia Water Quality Control Act, as amended, O.C.G.A. §
12-5-20 et  seq., the Georgia Hazardous Site Response Act, as
amended, O.C.G.A. § 12-8-90 et  seq., and regulations promulgated
pursuant thereto by the Georgia Department of Natural Resources Environmental
Protection Division and the regulations promulgated pursuant to said laws, all
as amended, regulations promulgated pursuant to said laws, all as amended from
time to time (collectively, the “Environmental Laws”) or otherwise
exposed to any liability under any Environmental Law relating to or affecting
the Property, whether or not used by or within the control of Grantor; (ii) no
hazardous, toxic or harmful substances, wastes, materials, pollutants or
contaminants (including, without limitation, asbestos or asbestos-containing
materials, lead based paint, polychlorinated biphenyls, petroleum or petroleum
products or byproducts, flammable explosives, radioactive materials, infectious
substances, radon gas or raw materials which include hazardous constituents) or
any other substances or materials which are included under or regulated by
Environmental Laws (collectively, “Hazardous Substances”) are located
on, in or under or have been handled, generated, stored, processed or disposed
of on or released or discharged from the Property (including underground contamination),
except for those substances used by Grantor or any Tenant in the ordinary
course of their respective businesses and in compliance with all Environmental
Laws and where such could not reasonably be expected to give rise to liability under
Environmental Laws; (iii) the Property is not subject to any private or
governmental lien or judicial or administrative notice or action arising under
Environmental Laws; (iv) there is no pending, nor, to Grantor’s knowledge,
information or belief, threatened litigation arising under Environmental Laws
affecting Grantor or the Property; there are no and have been no existing or closed
underground storage tanks or other underground storage receptacles for
Hazardous Substances or landfills or dumps on the Property; (v) Grantor has
received no notice of, and to the best of Grantor’s knowledge and belief, there
exists no investigation, action, proceeding or claim by any agency, authority
or unit of government or by any third party which could result in any liability,
penalty, sanction or judgment under any Environmental Laws with respect to any condition,
use or operation of the Property, nor does Grantor know of any basis for such
an investigation, action, proceeding or claim; (vi) Grantor has received no
notice of and, to the best of Grantor’s knowledge and belief, there has been no
claim by any party that any use, operation or condition of the Property has
caused any nuisance or any other liability or adverse condition on any other
property, nor does Grantor know of any basis for such an investigation, action,
proceeding or claim; and (vii) radon is not present at the Property in excess
or in violation of any applicable thresholds or standards or in amounts that
require under applicable law disclosure to any tenant or occupant of or invitee
to the Property or to any governmental agency or the general public.


 


(b)                                 Grantor
has not received nor to the best of Grantor’s knowledge, information and belief
has there been issued, any notice, notification, demand, request for
information, citation, summons, or order in any way relating to any actual,
alleged or potential violation or liability arising under Environmental Laws;
and


 


36





















 


(c)                                  Neither
the Property, nor to the best of Grantor’s knowledge, information and belief,
any property to which Grantor has, in connection with the maintenance or
operation of the Property, directly or indirectly transported or arranged for
the transportation of any Hazardous Substances is listed or, to the best of
Grantor’s knowledge, information and belief, proposed for listing on the
National Priorities List promulgated pursuant to CERCLA, on CERCLIS (as defined
in CERCLA) or on any similar federal or state list of sites requiring
environmental investigation or clean-up.


 


(d)                                 Grantor
shall comply with all applicable Environmental Laws. Grantor shall keep or
cause the Property to be kept free from Hazardous Substances (except those
substances used by Grantor or any Tenant in the ordinary course of their
respective businesses and except in compliance with all Environmental Laws and
where such could not reasonably be expected to give rise to liability under
Environmental Laws) and in compliance with all Environmental Laws. Grantor
shall not install or use any underground storage tanks, shall expressly
prohibit the use, generation, handling, storage, production, processing and
disposal of Hazardous Substances by all Tenants in quantities or conditions
that would violate or give rise to any obligation to take remedial or other
action under any applicable Environmental Laws. Without limiting the generality
of the foregoing, during the term of this Security Instrument, Grantor shall
not install in the Improvements or permit to be installed in the Improvements
any asbestos or asbestos- containing asbestos.


 


(e)                                  Grantor
shall promptly notify Grantee if Grantor shall become aware of (i) the actual
or potential existence of any Hazardous Substances on the Property other than
those occurring in the ordinary course of Grantor’s business and which do not
violate, or would not otherwise give rise to liability under Environmental
Laws, (ii) any direct or indirect violation of, or other exposure to liability
under, any Environmental Laws, (iii) any lien, action or notice affecting the
Property or Grantor resulting from any violation or alleged violation of or
liability or alleged liability under any Environmental Laws, (iv) the
institution of any investigation, inquiry or proceeding concerning Grantor or
the Property pursuant to any Environmental Laws or otherwise relating to
Hazardous Substances, or (v) the discovery of any occurrence, condition or
state of facts which would render any representation or warranty contained in
this Security Instrument incorrect in any respect if made at the time of such
discovery. Immediately upon receipt of same, Grantor shall deliver to Grantee
copies of any and all requests for information, complaints, citations,
summonses, orders, notices, reports or other communications, documents or instruments
in any way relating to any actual, alleged or potential violation or liability
of any nature whatsoever arising under Environmental Laws and relating to the
Property or to Grantor. Indemnitors shall remedy or cause to be remedied in a
timely manner (and in any event within the time period permitted by applicable
Environmental Laws) any violation of Environmental Laws or any condition that
could give rise to liability under Environmental Laws. Without limiting the
foregoing, Grantor shall, promptly and regardless of the source of the
contamination or threat to the environment or human health, at its own expense,
take all actions as shall be necessary or prudent, for the clean-up of any and
all portions of the Property or other affected property, including, without
limitation, all investigative, monitoring, removal, containment and remedial
actions in accordance with all applicable Environmental Laws (and in all events
in a manner satisfactory to Grantee) and shall further pay or cause to be paid,
at no expense to Grantee, all clean-up, administrative and enforcement costs of
applicable governmental agencies


 


37





















 


which may be asserted against the Property. In the
event Grantor fails to do so, Grantee may, but shall not be obligated to, cause
the Property or other affected property to be freed from any Hazardous
Substances or otherwise brought into conformance with Environmental Laws and
any and all costs and expenses incurred by Grantee in connection therewith,
together with interest thereon at the Default Interest Rate from the date
incurred by Grantee until actually paid by Grantor, shall be immediately paid
by Grantor on demand and shall be secured by this Security Instrument and by
all of the other Loan Documents securing all or any part of the Debt. Grantor
hereby grants to Grantee and its agents and employees access to the Property
and a license to remove any items deemed by Grantee to be Hazardous Substances
and to do all things Grantee shall deem necessary to bring the Property into
conformance with Environmental Laws.


 


(f)                                    Grantor
covenants and agrees, at Grantor’s sole cost and expense, to indemnify, defend
(at trial and appellate levels, and with attorneys, consultants and experts
acceptable to Grantee), and hold Grantee harmless from and against any and all
liens, damages (including without limitation, punitive or exemplary damages),
losses, liabilities (including, without limitation, strict liability),
obligations, settlement payments, penalties, fines, assessments, citations,
directives, claims, litigation, demands, defenses, judgments, suits,
proceedings, costs, disbursements or expenses of any kind or of any nature
whatsoever (including, without limitation, reasonable attorneys’, consultants’
and experts’ fees and disbursements actually incurred in investigating,
defending, settling or prosecuting any claim, litigation or proceeding) which
may at any time be imposed upon, incurred by or asserted or awarded against
Grantee or the Property, and arising directly or indirectly from or out of: (i)
any violation or alleged violation of, or liability or alleged liability under,
any Environmental Law; (ii) the presence, release or threat of release of or
exposure to any Hazardous Substances on, in, under or affecting all or any
portion of the Property or any surrounding areas, regardless of whether or not
caused by or within the control of Grantor; (iii) any transport, treatment,
recycling, storage, disposal or arrangement therefor of Hazardous Substances
whether on the Property, originating from the Property, or otherwise associated
with Grantor or any operations conducted on the Property at any time; (iv) the
failure by Grantor to comply fully with the terms and conditions of this Section
1.31; (v) the breach of any representation or warranty contained in this Section
1.31; (vi) the enforcement of this Section 1.31, including, without
limitation, the cost of assessment, investigation, containment, removal and/or
remediation of any and all Hazardous Substances from all or any portion of the
Property or any surrounding areas, the cost of any actions taken in response to
the presence, release or threat of release of any Hazardous Substances on, in,
under or affecting any portion of the Property or any surrounding areas to
prevent or minimize such release or threat of release so that it does not
migrate or otherwise cause or threaten danger to present or future public
health, safety, welfare or the environment, and costs incurred to comply with
Environmental Laws in connection with all or any portion of the Property or any
surrounding areas. The indemnity set forth in this Section 1.31 shall
also include any diminution in the value of the security afforded by the
Property or any future reduction in the sales price of the Property by reason
of any matter set forth in this Section 1.31. The foregoing indemnity
shall specifically not include any such costs relating to Hazardous Substances
which are initially placed on, in or under the Property after foreclosure or other
taking of title to the Property by Grantee or its successors or assigns.
Grantee’s rights under this Section shall survive payment in full of the Debt
and shall be in addition to all other rights of Grantee under this Security
Instrument, the Note and the other Loan Documents.


 


38





















 


(g)                                 Upon
Grantee’s request, at any time after the occurrence of an Event of Default or
at such other time as Grantee has reasonable grounds to believe that Hazardous
Substances are or have been
released, stored or disposed of on the Property, or on property contiguous with
the Property, or that the Property may be in violation of the Environmental
Laws, Grantor shall perform or cause to be performed, at Grantor’s sole cost
and expense and in scope, form and substance satisfactory to Grantee, an
inspection or audit of the Property prepared by a hydrogeologist or
environmental engineer or other appropriate consultant approved by Grantee
indicating the presence or absence of Hazardous Substances on the Property, the
compliance or non-compliance status of the Property and the operations
conducted thereon with applicable Environmental Laws, or an inspection or audit
of the Property prepared by an engineering or consulting firm approved by
Grantee indicating the presence or absence of friable asbestos or substances
containing asbestos or lead or substances containing lead or lead based paint (“Lead
Based Paint”) on the Property. If Grantor fails to provide reports of such
inspection or audit within thirty (30) days after such request, Grantee may
order the same, and Grantor hereby grants to Grantee and its employees and
agents access to the Property and an irrevocable license to undertake such
inspection or audit. The cost of such inspection or audit, together with
interest thereon at the Default Interest Rate from the date incurred by Grantee
until actually paid by Grantor, shall be immediately paid by Grantor on demand
and shall be secured by this Security Instrument and by all of the other Loan
Documents securing all or any part of the Debt.


 


(h)                                 Reference
is made to that certain Environmental Indemnity Agreement of even date herewith
by and among Grantor, the indemnitor named therein and Grantee (the “Environmental
Indemnity Agreement”). The provisions of this Security Instrument and the
Environmental Indemnity Agreement shall be read together to maximize the
coverage with respect to the subject matter thereof, as determined by Grantee.


 


(i)                                     [Reserved].


 


(j)                                     If,
prior to the date hereof, it was determined that the Property contains Lead
Based Paint, Grantor had prepared an assessment report describing the location
and condition of the Lead Based Paint (a “Lead Based Paint Report”). If,
at any time hereafter, Lead Based Paint is suspected of being present on the
Property, Grantor agrees, at its sole cost and expense and within twenty (20)
days thereafter, to cause to be prepared a Lead Based Paint Report prepared by
an expert, and in form, scope and substance, acceptable to Grantee.


 


(k)                                  Grantor
agrees that if it has been, or if at any time hereafter it is, determined that
the Property contains Lead Based Paint, on or before thirty (30) days following
(i) the date hereof, if such determination was made prior to the date hereof or
(ii) such determination, if such determination is hereafter made, as
applicable, Grantor shall, at its sole cost and expense, develop and implement,
and thereafter diligently and continuously carry out (or cause to be developed
and implemented and thereafter diligently and continually to be carried out),
an operations, abatement and maintenance plan for the Lead Based Paint on the
Property, which plan shall be prepared by an expert, and be in form, scope and
substance, acceptable to Grantee (together with any Lead Based Paint Report,
the “O&M Plan”). (If an O&M Plan has been prepared prior to the
date hereof, Grantor agrees to diligently and continually carry out (or cause


 


39





















 


to be carried out) the provisions thereof.) Compliance
with the O&M Plan shall require or be deemed to require, without
limitation, the proper preparation and maintenance of all records, papers and
forms required under the Environmental Laws.


 


1.32                        Indemnification;
Subrogation.


 


(a)                                  Grantor
shall indemnify, defend and hold Grantee harmless against: (i) any and all claims
for brokerage, leasing, finders or similar fees which may be made relating to
the Property or the Debt, and (ii) any and all liability, obligations, losses,
damages, penalties, claims, actions, suits, costs and expenses (including
Grantee’s reasonable attorneys’ fees) of whatever kind or nature which may be
asserted against, imposed on or incurred by Grantee in connection with the Debt,
this Security Instrument, the Property, or any part thereof, or the exercise by
Grantee of any rights or remedies granted to it under this Security Instrument;
provided, however, that nothing herein shall be construed to
obligate Grantor to indemnify, defend and hold harmless Grantee from and
against any and all liabilities, obligations, losses, damages, penalties,
claims, actions, suits, costs and expenses enacted against, imposed on or
incurred by Grantee by reason of Grantee’s willful misconduct or gross
negligence.


 


(b)                                 If
Grantee is made a party defendant to any litigation or any claim is threatened
or brought against Grantee concerning the Debt, this Security Instrument, the
Property, or any part thereof, or any interest therein, or the construction,
maintenance, operation or occupancy or use thereof, then Grantor shall
indemnify, defend and hold Grantee harmless from and against all liability by
reason of said litigation or claims, including reasonable attorneys’ fees and
expenses incurred by Grantee in any such litigation or claim, whether or not any
such litigation or claim is prosecuted to judgment. If Grantee commences an
action against Grantor to enforce any of the terms hereof or to prosecute any
breach by Grantor of any of the terms hereof or to recover any sum secured
hereby, Grantor shall pay to Grantee its reasonable attorneys’ fees and
expenses. The right to such attorneys’ fees and expenses shall be deemed to
have accrued on the commencement of such action, and shall be enforceable
whether or not such action is prosecuted to judgment. If Grantor breaches any
term of this Security Instrument, Grantee may engage the services of an
attorney or attorneys to protect its rights hereunder, and in the event of such
engagement following any breach by Grantor, Grantor shall pay Grantee
reasonable attorneys’ fees and expenses incurred by Grantee, whether or not an
action is actually commenced against Grantor by reason of such breach. All
references to “attorneys” in this subsection and elsewhere in this
Security Instrument shall include, without limitation, any attorney or law firm
engaged by Grantee and Grantee’s in-house counsel, and all references to “fees
and expenses” in this subsection and elsewhere in this Security Instrument
shall include, without limitation, any fees of such attorney or law firm, any
appellate counsel fees, if applicable, and any allocation charges and
allocation costs of Grantee’s in-house counsel.


 


(c)                                  A
waiver of subrogation shall be obtained by Grantor from its insurance carrier and,
consequently, Grantor waives any and all right to claim or recover against
Grantee, its officers, employees, agents and representatives, for loss of or
damage to Grantor, the Property, Grantor’s property or the property of others
under Grantor’s control from any cause insured against or required to be
insured against by the provisions of this Security Instrument.


 


40





















 


1.33                        Covenants
with Respect to Indebtedness, Operations, Fundamental Changes of Grantor.


 


Grantor hereby represents, warrants and covenants as of the date hereof
and until such time as the Debt is paid in full, that Grantor;


 


(a)                                  will
not, nor will any partner, limited or general, member or shareholder thereof, as
applicable, amend, modify or otherwise change its partnership certificate,
partnership agreement, articles of incorporation, by-laws, operating agreement,
articles of organization, or other formation agreement or document, as
applicable, in any material term or manner, or in a manner which adversely
affects Grantor’s existence as a single purpose entity;


 


(b)                                 will
not liquidate or dissolve (or suffer any liquidation or dissolution), or enter into
any transaction of merger or consolidation, or acquire by purchase or otherwise
all or substantially all the business or assets of, or any stock or other
evidence of beneficial ownership of any entity;


 


(c)                                  has
not and will not guarantee, pledge its assets for the benefit of, or otherwise become
liable on or in connection with, any obligation of any other person or entity;


 


(d)                                 does
not own and will not own any asset other than (i) the Property, and (ii) incidental
personal property necessary for the operation of the Property;


 


(e)                                  is
not engaged and will not engage, either directly or indirectly, in any business
other than the ownership, management and operation of the Property;


 


(f)                                    will
not enter into any contract or agreement with any general partner, principal, affiliate
or member of Grantor, as applicable, or any affiliate of any general partner,
principal or member of Grantor, except upon terms and conditions that are
intrinsically fair and substantially similar to those that would be available
on an arms-length basis with third parties other than an affiliate;


 


(g)                                 has
not incurred and will not incur any debt, secured or unsecured, direct or contingent
(including guaranteeing any obligation), other than (i) the Debt, and (ii)
affiliate advances or trade payables or accrued expenses incurred in the
ordinary course of business of operating the Property, and no other debt will
be secured (senior, subordinate or pari passu) by the Property;


 


(h)                                 has
not made and will not make any loans or advances to any third party (including
any affiliate);


 


(i)                                     is
and will be solvent and pay its debts from its assets as the same shall become
due;


 


(j)                                     has
done or caused to be done and will do all things necessary to preserve its
existence, and will observe all formalities applicable to it;


 


41





















 


(k)                                  will
conduct and operate its business in its own name and as presently conducted and
operated;


 


(l)                                     will
maintain financial statements, books and records and bank accounts separate
from those of its affiliates, including, without limitation, its general
partners or members, as applicable;


 


(m)                               will
be, and at all times will hold itself out to the public as, a legal entity
separate and distinct from any other entity (including, without limitation, any
affiliate, general partner, or member, as applicable, or any affiliate of any
general partner or member of Grantor, as applicable);


 


(n)                                 will
file its own tax returns;


 


(o)                                 will
maintain adequate capital for the normal obligations reasonably foreseeable in
a business of its size and character and in light of its contemplated business
operations;


 


(p)                                 will
allocate fairly and reasonably any overhead and expense for shared office
space;


 


(q)                                 will
not commingle the funds and other assets of Grantor with those of any general
partner, member, affiliate, principal or any other person;


 


(r)                                    has
and will maintain its assets in such a manner that it is not costly or
difficult to segregate, ascertain or identify its individual assets from those
of any affiliate or any other person;


 


(s)                                  does
not and will not hold itself out to be responsible for the debts or obligations
of any other person;


 


(t)                                    will
pay any liabilities out of its own funds, including salaries of its employees,
not funds of any affiliate;


 


(u)                                 will
use stationery, invoices, and checks separate from its affiliates; and


 


(v)                                 will
not partition, or permit any partition of, the Property; and


 


(w)                               will
not amend or terminate any co-tenancy or joint ownership agreement without the
prior written consent of Grantee.


 


42





















 


ARTICLE
II


 


EVENTS OF
DEFAULT


 


2.1                               Events of Default.


 


The occurrence of any of the following events shall be an Event of
Default hereunder:


 


(a)                                  Grantor
fails to pay any money to Grantee required hereunder at the time or within any
applicable grace period set forth herein.


 


(b)                                 Grantor
fails to provide insurance as required by Section 1.4 hereof or fails to
perform any covenant, agreement, obligation, term or condition set forth in Section
1.31 or Section 1.33 hereof.


 


(c)                                  Grantor
fails to perform any other covenant, agreement, obligation, term or condition
set forth herein, other than those otherwise described in this Section 2.1,
and, to the extent such failure or default is susceptible of being cured, the
continuance of such failure or default for thirty (30) days after written
notice thereof from Grantee to Grantor; provided, however, that
if such default is susceptible of cure but such cure cannot be accomplished
with reasonable diligence within said period of time, and if Grantor commences
to cure such default promptly after receipt of notice thereof from Grantee, and
thereafter prosecutes the curing of such default with reasonable diligence,
such period of time shall be extended for such period of time as may be
necessary to cure such default with reasonable diligence, but not to exceed an additional
sixty (60) days.


 


(d)                                 Any
representation or warranty made herein, in or in connection with any application
or commitment relating to the loan evidenced by the Note, or in any of the
other Loan Documents to Grantee by Grantor, by any principal, general partner,
manager or member in Grantor, or by any Indemnitor is determined by Grantee to
have been false or misleading in any material respect at the time made.


 


(e)                                  There
shall be a sale, conveyance, disposition, alienation, hypothecation, leasing, assignment,
pledge, mortgage, granting of a security interest in or other transfer or
further encumbrancing of the Property, Grantor or its general partners or
managing members, or any portion thereof or any interest therein, in violation
of Section 1.13 hereof.


 


(f)                                    A
default occurs under any of the other Loan Documents or any joint ownership agreement
or co-tenancy agreement which has not been cured within any applicable grace or
cure period therein provided.


 


(g)                                 Grantor,
any principal, general partner or managing member in Grantor or any Indemnitor
becomes insolvent, or makes a transfer in fraud of creditors, or makes an
assignment for the benefit of creditors, or files a petition in bankruptcy, or
is voluntarily adjudicated insolvent or bankrupt or admits in writing the inability
to pay its debts as they mature, or petitions or applies to any tribunal for or
consents to or fails to contest the appointment of a


 


43





















 


receiver, trustee, custodian or similar officer for
Grantor, for any such principal, general partner or managing member of Grantor
or for any Indemnitor or for a substantial part of the assets of Grantor, of
any such principal, general partner or managing member of Grantor or of any
Indemnitor, or commences any case, proceeding or other action under any
bankruptcy, reorganization, arrangement, readjustment or debt, dissolution or
liquidation law or statute of any jurisdiction, whether now or hereafter in
effect.


 


(h)                                 A
petition is filed or any case, proceeding or other action is commenced against
Grantor, against any principal, general partner or managing member of Grantor
or against any Indemnitor seeking to have an order for relief entered against
it as debtor or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts or other relief under any law
relating to bankruptcy, insolvency, arrangement, reorganization, receivership
or other debtor relief under any law or statute of any jurisdiction, whether
now or hereafter in effect, or a court of competent jurisdiction enters an
order for relief against Grantor, against any principal, general partner or
managing member of Grantor or against any Indemnitor, as debtor, or an order,
judgment or decree is entered appointing, with or without the consent of
Grantor, of any such principal, general partner or managing member of Grantor
or of any Indemnitor, a receiver, trustee, custodian or similar officer for
Grantor, for any such principal, general partner or managing member of Grantor
or for any Indemnitor, or for any substantial part of any of the properties of
Grantor, of any such principal, general partner or managing member of Grantor
or of any Indemnitor, and if any such event shall occur, such petition, case,
proceeding, action, order, judgment or decree is not dismissed within sixty
(60) days after being commenced.


 


(i)                                     The
Property or any part thereof is taken on execution or other process of law in
any action against Grantor.


 


(j)                                     Grantor
abandons all or a portion of the Property.


 


(k)                                  The
holder of any lien or security interest on the Property (without implying the
consent of Grantee to the existence or creation of any such lien or security
interest), whether superior or subordinate to this Security instrument or any
of the other Loan Documents, declares a default and such default is not cured
within any applicable grace or cure period set forth in, the applicable
document or such holder institutes foreclosure or other proceedings for the
enforcement of its remedies thereunder.


 


(l)                                     The
Property, or any part thereof, is subjected to waste or to removal, demolition
or material alteration so that the value of the Property is materially
diminished thereby and Grantee determines that it is not adequately protected
from any loss, damage or risk associated therewith.


 


(m)                               Any
dissolution, termination, partial or complete liquidation, merger or consolidation
of Grantor, any of its principals, any general partner or any managing member, or
any Indemnitor.


 


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ARTICLE
III


 


REMEDIES


 


3.1                               Remedies
Available.


 


If there shall occur an Event of Default under this Security
Instrument, then this Security Instrument is subject to foreclosure as provided
by law and Grantee may, at its option and by or through a trustee, nominee,
assignee or otherwise, to the fullest extent permitted by law, exercise any or
all of the following rights, remedies and recourses, either successively or
concurrently:


 


(a)                                  Acceleration.
Accelerate the maturity date of the Note and declare any or all of the Debt to
be immediately due and payable without any presentment, demand, protest, notice
or action of any kind whatever (each of which is hereby expressly waived by
Grantor), whereupon the same shall become immediately due and payable. Upon any
such acceleration, payment of such accelerated amount shall constitute a
prepayment of the principal balance of the Note and any applicable prepayment
fee provided for in the Note shall then be immediately due and payable.


 


(b)                                 Entry
on the Property. Either in person or by agent, with or without bringing any
action or proceeding, or by a receiver appointed by a court and without regard
to the adequacy of its security, enter upon and take possession of the
Property, or any part thereof, without force or with such force as is permitted
by law and without notice or process or with such notice or process as is
required by law, unless such notice and process is waivable, in which case
Grantor hereby waives such notice and process, and do any and all acts and
perform any and all work which may be desirable or necessary in Grantee’s
judgment to complete any unfinished construction on the Premises, to preserve
the value, marketability or rentability of the Property, to increase the income
therefrom, to manage and operate the Property or to protect the security hereof,
and all sums expended by Grantee therefor, together with interest thereon at
the Default Interest Rate, shall be immediately due and payable to Grantee by
Grantor on demand and shall be secured hereby and by all of the other Loan
Documents securing all or any part of the Debt.


 


(c)                                  Collect
Rents. With or without taking possession of the Property, sue or otherwise
collect the Rents, including those past due and unpaid.


 


(d)                                 Appointment
of Receiver. Upon, or at any time prior or after, initiating the exercise
of any power of sale, instituting any judicial foreclosure or instituting any
other foreclosure of the liens and security interests provided for herein or
any other legal proceedings hereunder, make application to a court of competent
jurisdiction for appointment of a receiver for all or any part of the Property,
as a matter of strict right and without notice to Grantor and without regard to
the adequacy of the Property for the repayment of the Debt or the solvency of Grantor
or any person or persons liable for the payment of the Debt, and Grantor does
hereby irrevocably consent to such appointment, waive any and all notices of
and defenses to such appointment and agree not to oppose any application
therefor by Grantee, but nothing herein is to be construed to deprive Grantee
of any other right, remedy or privilege Grantee may now have


 


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under the law to have a receiver appointed, provided,
however, that the appointment of such receiver, trustee or other
appointee by virtue of any court order, statute or regulation shall not impair
or in any manner prejudice the rights of Grantee to receive payment of the
Rents pursuant to other terms and provisions hereof. Any such receiver shall
have all of the usual powers and duties of receivers in similar cases,
including, without limitation, the full power to hold, develop, rent, lease,
manage, maintain, operate and otherwise use or permit the use of the Property
upon such terms and conditions as said receiver may deem to be prudent and
reasonable under the circumstances as more fully set forth in Section 3.3
below. Such receivership shall, at the option of Grantee, continue until full
payment of all of the Debt or until title to the Property shall have passed by
foreclosure sale under this Security Instrument or deed in lieu of foreclosure.


 


(e)                                  Foreclosure.
Immediately commence an action to foreclose this Security Instrument or to
specifically enforce its provisions with respect to any of the Debt, pursuant
to the statutes in such case made and provided, and sell the Property or cause
the Property to be sold in accordance with the requirements and procedures
provided by said statutes in a single parcel or in several parcels at the
option of Grantee. In the event foreclosure proceedings are instituted by
Grantee, all expenses incident to such proceedings, including, but not limited
to, reasonable attorneys’ fees and costs, shall be paid by Grantor and secured
by this Security Instrument and by all of the other Loan Documents securing all
or any part of the Debt. The Debt and all other obligations secured by this
Security Instrument, including, without limitation, interest at the Default
Interest Rate, any prepayment charge, fee or premium required to be paid under
the Note in order to prepay principal (to the extent permitted by applicable
law), reasonable attorneys’ fees and any other amounts due and unpaid to
Grantee under the Loan Documents, may be bid by Grantee in the event of a
foreclosure sale hereunder. In the event of a judicial sale pursuant to a
foreclosure decree, it is understood and agreed that Grantee or its assigns may
become the purchaser of the Property or any part thereof.


 


(f)                                    Judicial
Remedies. Proceed by suit or suits, at law or in equity, instituted by or
on behalf of Grantee, to enforce the payment of the Debt or the other
obligations of Grantor hereunder or pursuant to the Loan Documents, to
foreclose the liens and security interests of this Security Instrument as
against all or any part of the Property, and to have all or any part of the Property
sold under the judgment or decree of a court of competent jurisdiction. This
remedy shall be cumulative of any other non-judicial remedies available to
Grantee with respect to the Loan Documents. Proceeding with the request or
receiving a judgment for legal relief shall not be or be deemed to be an
election of remedies or bar any available non-judicial remedy of Grantee.


 


(g)                                 Other.
Exercise any other right or remedy available hereunder, under any of the other
Loan Documents or at law or in equity.


 


3.2                               Application
of Proceeds.


 


To the fullest extent permitted by law, the proceeds of any sale under
this Security Instrument shall be applied, to the extent funds are so
available, to the following items in such order as Grantee in its discretion
may determine:


 


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(a)                                  To
payment of the reasonable costs, expenses and fees of taking possession of the Property,
and of holding, operating, maintaining, using, leasing, repairing, improving,
marketing and selling the same and of otherwise enforcing Grantee’s rights and
remedies hereunder and under the other Loan Documents, including, but not
limited to, receivers’ fees, court costs, attorneys’, accountants’, appraisers’,
managers’ and other professional fees, title charges and transfer taxes.


 


(b)                                 To
payment of all sums expended by Grantee under the terms of any of the Loan Documents
and not yet repaid, together with interest on such sums at the Default Interest
Rate.


 


(c)                                  To
payment of the Debt and all other obligations secured by this Security Instrument,
including, without limitation, interest at the Default Interest Rate and, to
the extent permitted by applicable law, any prepayment fee, charge or premium
required to be paid under the Note in order to prepay principal, in any order
that Grantee chooses in its sole discretion.


 


(d)                                 The
remainder, if any, of such funds shall be disbursed to Grantor or to the person
or persons legally entitled thereto.


 


3.3                               Right
and Authority of Receiver or Grantee in the Event of Default; Power of Attorney.


 


Upon the occurrence of an Event of Default, and entry upon the Property
pursuant to Section 3.1(b) hereof or appointment of a receiver pursuant
to Section 3.1(d) hereof, and under such terms and conditions as may be
prudent and reasonable under the circumstances in Grantee’s or the receiver’s
sole discretion, all at Grantor’s expense, Grantee or said receiver, or such
other persons or entities as they shall hire, direct or engage, as the case may
be, may do or permit one or more of the following, successively or
concurrently: (a) enter upon and take possession and control of any and all of
the Property; (b) take and maintain possession of all documents, books,
records, papers and accounts relating to the Property; (c) exclude Grantor and
its agents, servants and employees wholly from the Property; (d) manage and
operate the Property; (e) preserve and maintain the Property; (f) make repairs
and alterations to the Property; (g) complete any construction or repair of the
Improvements, with such changes, additions or modifications of the plans and
specifications or intended disposition and use of the Improvements as Grantee
may in its sole discretion deem appropriate or desirable to place the Property
in such condition as will, in Grantee’s sole discretion, make it or any part
thereof readily marketable or rentable; (h) conduct a marketing or leasing
program with respect to the Property, or employ a marketing or leasing agent or
agents to do so, directed to the leasing or sale of the Property under such
terms and conditions as Grantee may in its sole discretion deem appropriate or
desirable; (i) employ such contractors, subcontractors, materialmen,
architects, engineers, consultants, managers, brokers, marketing agents, or
other employees, agents, independent contractors or professionals, as Grantee
may in its sole discretion deem appropriate or desirable to implement and effectuate
the rights and powers herein granted; (j) execute and deliver, in the name of
Grantee as attorney-in-fact and agent of Grantor or in its own name as Grantee,
such documents and instruments as are necessary or appropriate to consummate
authorized transactions; (k) enter such leases, whether of real or personal
property, or tenancy agreements, under such terms and conditions as Grantee may
in its sole discretion deem


 


47





















 


appropriate or desirable; (1) collect and receive the
Rents from the Property; (m) eject tenants or repossess personal property, as
provided by law, for breaches of the conditions of their leases or other
agreements; (n) sue for unpaid Rents, payments, income or proceeds in the name
of Grantor or Grantee; (o) maintain actions in forcible entry and detainer,
ejectment for possession and actions in distress for rent; (p) compromise or
give acquittance for Rents, payments, income or proceeds that may become due;
(q) delegate or assign any and all rights and powers given to Grantee by this
Security Instrument; and (r) do any acts which Grantee in its sole discretion deems
appropriate or desirable to protect the security hereof and use such measures,
legal or equitable, as Grantee may in its sole discretion deem appropriate or
desirable to implement and effectuate the provisions of this Security
Instrument. This Security Instrument shall constitute a direction to and full
authority to any lessee, or other third party who has heretofore dealt or contracted
or may hereafter deal or contract with Grantor or Grantee, at the request of
Grantee, to pay all amounts owing under any lease, contract, concession,
license or other agreement to Grantee without proof of the Event of Default
relied upon. Any such lessee or third party is hereby irrevocably authorized to
rely upon and comply with (and shall be fully protected by Grantor in so doing)
any request, notice or demand by Grantee for the payment to Grantee of any
Rents or other sums which may be or thereafter become due under its lease,
contract, concession, license or other agreement, or for the performance of any
undertakings under any such lease, contract, concession, license or other
agreement, and shall have no right or duty to inquire whether any Event of
Default under this Security Instrument or under any of the other Loan Documents
has actually occurred or is then existing. Grantor hereby constitutes and
appoints Grantee, its assignees, successors, transferees and nominees, as
Grantor’s true and lawful attorney-in-fact and agent, with full power of
substitution in the Property, in Grantor’s name, place and stead, to do or
permit any one or more of the foregoing described rights, remedies, powers and
authorities, successively or concurrently, and said power of attorney shall be
deemed a power coupled with an interest and irrevocable so long as any portion
of the Debt is outstanding. Any money advanced by Grantee in connection with
any action taken under this Section 3.3, together with interest thereon
at the Default Interest Rate from the date of making such advancement by
Grantee until actually paid by Grantor, shall be a demand obligation owing by
Grantor to Grantee and shall be secured by this Security Instrument and by
every other instrument securing all or any portion of the Debt.


 


3.4                               Occupancy
After Foreclosure.


 


In the event there is a foreclosure sale hereunder and at the time of
such sale, Grantor or Grantor’s representatives, successors or assigns, or any
other persons claiming any interest in the Property by, through or under
Grantor (except tenants of space in the Improvements subject to leases entered
into prior to the date hereof), are occupying or using the Property, or any
part thereof, then, to the extent not prohibited by applicable law, each and
all shall, at the option of Grantee or the purchaser at such sale, as the case
may be, immediately become the tenant of the purchaser at such sale, which
tenancy shall be a tenancy from day-to-day, terminable at the will of either
landlord or tenant, at a reasonable rental per day based upon the value of the
Property occupied or used, such rental to be due daily to the purchaser.
Further, to the extent permitted by applicable law, in the event the tenant
fails to surrender possession of the Property upon the termination of such
tenancy, the purchaser shall be entitled to institute and maintain an action
for


 


48





















 


unlawful detainer of the Property in the appropriate
court of the county in which the Premises is located.


 


3.5                               Notice
to Account Debtors.


 


Grantee may, at any time after an Event of Default, notify the account
debtors and obligors of any accounts, chattel paper, negotiable instruments or
other evidences of indebtedness to Grantor included in the Property to pay
Grantee directly. Grantor shall at any time or from time to time upon the
request of Grantee provide to Grantee a current list of all such account
debtors and obligors and their addresses.


 


3.6                               Cumulative
Remedies.


 


All remedies contained in this Security Instrument are cumulative and
Grantee shall also have all other remedies provided at law and in equity or in
any other Loan Documents. Such remedies may be pursued separately, successively
or concurrently at the sole subjective direction of Grantee and may be
exercised in any order and as often as occasion therefor shall arise. No act of
Grantee shall be construed as an election to proceed under any particular
provisions of this Security Instrument to the exclusion of any other provision
of this Security Instrument or as an election of remedies to the exclusion of
any other remedy which may then or thereafter be available to Grantee. No delay
or failure by Grantee to exercise any right or remedy under this Security
Instrument shall be construed to be a waiver of that right or remedy or of any
Event of Default. Grantee may exercise any one or more of its rights and
remedies at its option without regard to the adequacy of its security.


 


3.7                               Payment
of Expenses.


 


Grantor shall pay on demand all of Grantee’s expenses incurred in any
efforts to enforce any terms of this Security Instrument, whether or not any
lawsuit is filed and whether or not foreclosure is commenced but not completed,
including, but not limited to, reasonable legal fees and disbursements,
foreclosure costs and title charges, together with interest thereon from and
after the date incurred by Grantee until actually paid by Grantor at the
Default Interest Rate, and the same shall be secured by this Security
Instrument and by all of the other Loan Documents securing all or any part of
the Debt.


 


3.8                               Fair
Market Value. The “fair market value” of the Property shall be
determined as of the foreclosure date in order to enforce a deficiency against
Grantor or any other party liable for the repayment of the indebtedness secured
hereby, the term “fair market value” shall include those matters required by
applicable law and shall also include the additional factors as follows:


 


(a)                                  The
Property is to be valued “AS IS, WHERE IS” and “WITH ALL FAULTS” and there
shall be no assumption of restoration of or refurbishment of the Property after
the date of foreclosure;


 


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(b)                                 There
shall be an assumption of a prompt resale of the Property for an all cash sales
price by the purchaser at the foreclosure so that no extensive holding period
should be factored into the determination of “fair market value” of the
Property;


 


(c)                                  An
offset to the fair market value of the Property, as determined hereunder, shall
be made by deducting from such value the reasonable estimated closing costs
relating to the sale of the Property, including, but not limited to, brokerage
commissions, title policy expenses, tax prorations, escrow fees, and other
common charges which are incurred by a seller of real property similar to the
Property; and


 


(d)                                 After
consideration of the factors required by law and those required above, an additional
discount factor shall be calculated based upon the estimated time it will take
to effectuate a sale of the Property so that the “fair market value” as so
determined is discounted to be as of the date of the foreclosure of the
Property.


 


ARTICLE
IV


 


MISCELLANEOUS
TERMS AND CONDITIONS


 


4.1                               Time
of Essence.


 


Time is of the essence with respect to all provisions of this Security
Instrument.


 


4.2                               Release
of Security Instrument.


 


If all of the Debt be paid, then and in that event only, all rights
under this Security Instrument, except for those provisions hereof which by
their terms survive, shall terminate and the Property shall become wholly clear
of the liens, security interests, conveyances and assignments evidenced hereby,
which shall be promptly released of record by Grantee in due form at Grantor’s
cost. No release of this Security Instrument or the lien hereof shall be valid
unless executed by Grantee.


 


4.3                               Certain
Rights of Grantee.


 


Without affecting Grantor’s liability for the payment of any of the
Debt, Grantee may from time to time and without notice to Grantor: (a) release
any person liable for the payment of the Debt; (b) extend or modify the terms
of payment of the Debt; (c) accept additional real or personal property of any
kind as security or alter, substitute or release any property securing the
Debt; (d) recover any part of the Property; (e) consent in writing to the
making of any subdivision map or plat thereof; (f) join in granting any
easement therein; or (g) join in any extension agreement of this Security
Instrument or any agreement subordinating the lien hereof.


 


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4.4                               Waiver
of Certain Defenses.


 


No action for the enforcement of the lien hereof or of any provision
hereof shall be subject to any defense which would not be good and available to
the party interposing the same in an action at law upon the Note or any of the
other Loan Documents.


 


4.5                               Notices;
Designation of Managing Agent.


 


All notices, demands, requests or other communications to be sent by
one party to the other hereunder or required by law shall be in writing and
shall be deemed to have been validly given or served by delivery of the same in
person to the intended addressee, or by depositing the same with Federal
Express or another reputable private courier service for next business day
delivery, or by depositing the same in the United States mail, postage prepaid,
registered or certified mail, return receipt requested, in any event addressed
to the intended addressee: to Grantor as set forth in the next succeeding
paragraph, to Grantee at Wachovia Bank, National Association, 201 South Tryon
Street, Suite 130, PMB Box #4, Loan Number 50-2753516, Charlotte, North
Carolina 28202, or at such other address as may be designated by such party as
herein provided. All notices, demands and requests shall be effective upon such
personal delivery, or one (1) business day after being deposited with the
private courier service, or two (2) business days after being deposited in the
United States mail as required above. Rejection or other refusal to accept or
the inability to deliver because of changed address of which no notice was
given as herein required shall be deemed to be receipt of the notice, demand or
request sent. By giving to the other party hereto at least fifteen (15) days’
prior written notice thereof in accordance with the provisions hereof, the
parties hereto shall have the right from time to time to change their
respective addresses and each shall have the right to specify as its address
any other address within the United States of America.


 


Steven D. Bell & Company (“SDB&Co”), the Indemnitor and an
affiliate of Henry Town Center, LLC, one of the co-tenants comprising Grantor,
hereby accepts appointment as the managing agent with respect to notices,
demands, requests or other communications between Grantor and Grantee.
SDB&Co hereby agrees to serve as attorney-in-fact for Borrower for the
limited purpose of receiving all notices with respect to the Debt. Borrower
acknowledges that SDB&Co will be the only party to be shown in the Loan
Documents as to which notices from Grantee shall be delivered. For the purposes
of the Debt, Borrower acknowledges that notice from Grantee to SDB&Co shall
be deemed notice to all co-tenants. SDB&Co agrees that as managing agent it
shall keep all books, records and accounts pertaining to the Debt separate from
any other property of SDB&Co. Borrower agrees that SDB&Co, as managing
agent and The Sembler Company, as property manager (the “Property Manager”) may
be discharged or replaced only with Grantee’s prior written consent. Borrower
agrees that SDB&Co shall be responsible for assuring that the Property is
well maintained by the Property Manager and that all expenses related to the
Property are paid by the Property Manager when due. Any notices to Grantor
hereunder shall be sent to SDB&Co, 823 N. Elm Street, Suite 200,
Greensboro, North Carolina 27401.


 


4.6                               Successors
and Assigns; Joint and Several Liability.


 


The terms, provisions, indemnities, covenants and conditions hereof
shall be binding upon Grantor and the successors and assigns of Grantor,
including all successors in interest of


 


51





















 


Grantor in and to all or any part of the Property, and
shall inure to the benefit of Grantee, its directors, officers, shareholders,
employees and agents and their respective successors and assigns and shall
constitute covenants running with the land. All references in this Security
Instrument to Grantor or Grantee shall be deemed to include all such parties’
successors and assigns, and the term “Grantee” as used herein shall also mean
and refer to any lawful holder or owner, including pledgees and participants,
of any of the Debt. If Grantor consists of more than one person or entity, each
is jointly and severally liable to perform the obligations of Grantor hereunder
and all representations, warranties, covenants and agreements made by Grantor
hereunder are joint and several.


 


4.7                               Severability.


 


A determination that any provision of this Security Instrument is
unenforceable or invalid shall not affect the enforceability or validity of any
other provision, and any determination that the application of any provision of
this Security Instrument to any person or circumstance is illegal or
unenforceable shall not affect the enforceability or validity of such provision
as it may apply to any other persons or circumstances.


 


4.8                               Gender.


 


Within this Security Instrument, words of any gender shall be held and
construed to include any other gender, and words in the singular shall be held
and construed to include the plural, and vice versa, unless the context
otherwise requires.


 


4.9                               Waiver;
Discontinuance of Proceedings.


 


Grantee may waive any single Event of Default by Grantor hereunder
without waiving any other prior or subsequent Event of Default. Grantee may
remedy any Event of Default by Grantor hereunder without waiving the Event of
Default remedied. Neither the failure by Grantee to exercise, nor the delay by
Grantee in exercising, any right, power or remedy upon any Event of Default by
Grantor hereunder shall be construed as a waiver of such Event of Default or as
a waiver of the right to exercise any such right, power or remedy at a later
date. No single or partial exercise by Grantee of any right, power or remedy
hereunder shall exhaust the same or shall preclude any other or further
exercise thereof, and every such right, power or remedy hereunder may be
exercised at any time and from time to time. No modification or waiver of any
provision hereof nor consent to any departure by Grantor therefrom shall in any
event be effective unless the same shall be in writing and signed by Grantee,
and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose given. No notice to nor demand on Grantor
in any case shall of itself entitle Grantor to any other or further notice or
demand in similar or other circumstances. Acceptance by Grantee of any payment
in an amount less than the amount then due on any of the Debt shall be deemed
an acceptance on account only and shall not in any way affect the existence of
an Event of Default. In case Grantee shall have proceeded to invoke any right,
remedy or recourse permitted hereunder or under the other Loan Documents and
shall thereafter elect to discontinue or abandon the same 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 Debt, the Loan


 


52





















 


Documents, the Property and otherwise, and the rights,
remedies, recourses and powers of Grantee shall continue as if the same had
never been invoked.


 


4.10                        Section
Headings.


 


The headings of the sections and paragraphs of this Security Instrument
are for convenience of reference only, are not to be considered a part hereof
and shall not limit or otherwise affect any of the terms hereof.


 


4.11                        GOVERNING
LAW.


 


THIS SECURITY INSTRUMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE PREMISES IS LOCATED,
PROVIDED THAT TO THE EXTENT THAT ANY OF SUCH LAWS MAY NOW OR HEREAFTER BE
PREEMPTED BY FEDERAL LAW, SUCH FEDERAL LAW SHALL SO GOVERN AND BE CONTROLLING,
AND PROVIDED FURTHER THAT THE LAWS OF THE STATE IN WHICH THE PREMISES IS
LOCATED SHALL GOVERN AS TO THE CREATION, PRIORITY AND ENFORCEMENT OF LIENS AND
SECURITY INTERESTS IN THE PROPERTY LOCATED IN SUCH STATE.


 


4.12                        Counting
of Days.


 


The term “days” when used herein shall mean calendar days. If any time
period ends on a Saturday, Sunday or holiday officially recognized by the state
within which the Premises is located, the period shall be deemed to end on the
next succeeding business day. The term “business day” when used herein shall
mean a weekday, Monday through Friday, except a legal holiday or a day on which
banking institutions in New York, New York are authorized by law to be closed.


 


4.13                        Relationship
of the Parties.


 


The relationship between Grantor and Grantee is that of a borrower and
a lender only and neither of those parties is, nor shall it hold itself out to
be, the agent, employee, joint venturer or partner of the other party.


 


4.14                        Application
of the Proceeds of the Note.


 


To the extent that proceeds of the Note are used to pay indebtedness
secured by any outstanding lien, security interest, charge or prior encumbrance
against the Property, such proceeds have been advanced by Grantee at Grantor’s
request and Grantee shall be subrogated to any and all rights, security
interests and liens owned by any owner or holder of such outstanding liens,
security interests, charges or encumbrances, irrespective of whether said
liens, security interests, charges or encumbrances are released.


 


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4.15                        Unsecured
Portion of Indebtedness.


 


If any part of the Debt cannot be lawfully secured by this Security
Instrument or if any part of the Property cannot be lawfully subject to the
lien and security interest hereof to the full extent of such indebtedness, then
all payments made shall be applied on said indebtedness first in discharge of
that portion thereof which is unsecured by this Security Instrument.


 


4.16                        Cross
Default.


 


An Event of Default hereunder which has not been cured within any
applicable grace or cure period shall be a default under each of the other Loan
Documents.


 


4.17                        Interest
After Sale.


 


In the event the Property or any part thereof shall be sold upon
foreclosure as provided hereunder, to the extent permitted by law, the sum for
which the same shall have been sold shall, for purposes of redemption (pursuant
to the laws of the State in which the Premises is located), bear interest at
the Default Interest Rate.


 


4.18                        Inconsistency
with Other Loan Documents.


 


In the event of any inconsistency between the provisions hereof and the
provisions in any of the other Loan Documents, it is intended that the
provisions of the Note shall control over the provisions of this Security
Instrument, and that the provisions of this Security Instrument shall control
over the provisions of the Assignment of Leases and Rents, the Guaranty and
Indemnity Agreement, the Environmental Indemnity Agreement, and the other Loan
Documents.


 


4.19                        Construction
of this Document.


 


This document may be construed as a security deed, Security Instrument,
chattel mortgage, conveyance, assignment, security agreement, pledge, financing
statement, hypothecation or contract, or any one or more of the foregoing, in
order to fully effectuate the liens and security interests created hereby and
the purposes and agreements herein set forth.


 


4.20                        No
Merger.


 


It is the desire and intention of the parties hereto that this Security
Instrument and the lien hereof do not merge in fee simple title to the
Property. It is hereby understood and agreed that should Grantee acquire any
additional or other interests in or to the Property or the ownership thereof,
then, unless a contrary intent is manifested by Grantee as evidenced by an
appropriate document duly recorded, this Security Instrument and the lien
hereof shall not merge in such other or additional interests in or to the
Property, toward the end that this Security Instrument may be foreclosed as if
owned by a stranger to said other or additional interests.


 


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4.21                        Rights
With Respect to Junior Encumbrances.


 


Any person or entity purporting to have or to take a junior mortgage or
other lien upon the Property or any interest therein shall be subject to the
rights of Grantee to amend, modify, increase, vary, alter or supplement this
Security Instrument, the Note or any of the other Loan Documents, and to extend
the maturity date of the Debt, and to increase the amount of the Debt, and to
waive or forebear the exercise of any of its rights and remedies hereunder or
under any of the other Loan Documents and to release any collateral or security
for the Debt, in each and every case without obtaining the consent of the
holder of such junior lien and without the lien or security interest of this
Security Instrument losing its priority over the rights of any such junior
lien.


 


4.22                        Grantee
May File Proofs of Claim.


 


In the case of any receivership, insolvency, bankruptcy,
reorganization, arrangement, adjustment, composition or other proceedings
affecting Grantor or the principals, general partners or managing members in
Grantor, or their respective creditors or property, Grantee, to the extent
permitted by law, shall be entitled to file such proofs of claim and other
documents as may be necessary or advisable in order to have the claims of
Grantee allowed in such proceedings for the entire Debt at the date of the
institution of such proceedings and for any additional amount which may become
due and payable by Grantor hereunder after such date.


 


4.23                        Fixture
Filing.


 


This Security Instrument shall be effective from the date of its
recording as a financing statement filed as a fixture filing with respect to
all goods constituting part of the Property which are or are to become fixtures.
This Security Instrument shall also be effective as a financing statement covering
minerals or the like (including oil and gas) and is to be filed for record in
the real estate records of the county where the Premises is situated. The
mailing address of Grantor and the address of Grantee from which information
concerning the security interests may be obtained are set forth in Section
1.22 above.


 


4.24                        After-Acquired
Property.


 


All property acquired by Grantor after the date of this Security
Instrument which by the terms of this Security Instrument shall be subject to
the lien and the security interest created hereby, shall immediately upon the
acquisition thereof by Grantor and without further mortgage, conveyance or
assignment become subject to the lien and security interest created by this
Security Instrument. Nevertheless, Grantor shall execute, acknowledge, deliver
and record or file, as appropriate, all and every such further mortgages,
security agreements, financing statements, assignments and assurances as
Grantee shall require for accomplishing the purposes of this Security Instrument.


 


55





















 


4.25                        No
Representation.


 


By accepting delivery of any item required to be observed, performed or
fulfilled or to be given to Grantee pursuant to the Loan Documents, including,
but not limited to, any officer’s certificate, balance sheet, statement of
profit and loss or other financial statement, survey, appraisal or insurance
policy, Grantee shall not be deemed to have warranted, consented to, or
affirmed the sufficiency, legality, effectiveness or legal effect of the same,
or of any term, provision or condition thereof, and such acceptance of delivery
thereof shall not be or constitute any warranty, consent or affirmation with
respect thereto by Grantee.


 


4.26                        Counterparts.


 


This Security Instrument may be executed in any number of counterparts,
each of which shall be effective only upon delivery and thereafter shall be
deemed an original, and all of which shall be taken to be one and the same
instrument, for the same effect as if all parties hereto had signed the same
signature page. Any signature page of this Security Instrument may be detached
from any counterpart of this Security Instrument without impairing the legal
effect of any signatures thereon and may be attached to another counterpart of
this Security Instrument identical in form hereto but having attached to it one
or more additional signature pages.


 


4.27                        Personal
Liability.


 


Notwithstanding anything to the contrary contained in this Security
Instrument, the liability of Grantor and its officers, directors, general
partners, managers, members and principals for the Debt and for the performance
of the other agreements, covenants and obligations contained herein and in the
Loan Documents shall be limited as set forth in Section 2.6 of the Note.


 


4.28                        Recording
and Filing.


 


Grantor will cause the Loan Documents and all amendments and
supplements thereto and substitutions therefor to be recorded, filed,
re-recorded and re-filed in such manner and in such places as Grantee shall
reasonably request, and will pay on demand all such recording, filing,
re-recording and re-filing taxes, fees and other charges. Grantor shall
reimburse Grantee, or its servicing agent, for the costs incurred in obtaining
a tax service company to verify the status of payment of taxes and assessments
on the Property.


 


4.29                        Entire
Agreement and Modifications.


 


This Security Instrument and the other Loan Documents contain the
entire agreements between the parties relating to the subject matter hereof and
thereof and all prior agreements relative hereto and thereto which are not
contained herein or therein are terminated. This Security Instrument and the
other Loan Documents may not be amended, revised, waived, discharged, released
or terminated orally but only by a written instrument or instruments executed
by the party against which enforcement of the amendment, revision, waiver,
discharge,


 


56





















 


release or termination is asserted. Any alleged
amendment, revision, waiver, discharge, release or termination which is not so
documented shall not be effective as to any party.


 


4.30                        Maximum
Interest.


 


The provisions of this Security Instrument and of all agreements
between Grantor and Grantee, whether now existing or hereafter arising and
whether written or oral, are hereby expressly limited so that in no contingency
or event whatsoever, whether by reason of demand or acceleration of the
maturity of the Note or otherwise, shall the amount paid, or agreed to be paid
(“Interest”) to Grantee for the use, forbearance or retention of the
money loaned under the Note exceed the maximum amount permissible under
applicable law. If, from any circumstance whatsoever, performance or
fulfillment of any provision hereof or of any agreement between Grantor and
Grantee shall, at the time performance or fulfillment of such provision shall
be due, exceed the limit for Interest prescribed by law or otherwise transcend
the limit of validity prescribed by applicable law, then, ipso  facto,
the obligation to be performed or fulfilled shall be reduced to such limit, and
if, from any circumstance whatsoever, Grantee shall ever receive anything of
value deemed Interest by applicable law in excess of the maximum lawful amount,
an amount equal to any excessive Interest shall be applied to the reduction of
the principal balance owing under the Note in the inverse order of its maturity
(whether or not then due) or, at the option of Grantee, be paid over to
Grantor, and not to the payment of Interest. All Interest (including any
amounts or payments deemed to be Interest) paid or agreed to be paid to Grantee
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full period until payment in full of the
principal balance of the Note so that the Interest thereon for such full period
will not exceed the maximum amount permitted by applicable law. This Section
will control all agreements between Grantor and Grantee.


 


4.31                        Interest
Payable by Grantee.


 


Grantee shall cause funds in the Replacement Reserve to be deposited
into interest bearing accounts of the type customarily maintained by Grantee or
its servicing agent for the investment of similar reserves, which accounts may
not yield the highest interest rate then available. Interest payable on such
amounts shall be computed based on the daily outstanding balance in the
Replacement Reserve. Such interest shall be calculated on a simple,
non-compounded interest basis based solely on contributions made to the
Replacement Reserve by Grantor. All interest earned on amounts contributed to
the Replacement Reserve shall be retained by Grantee and accumulated for the
benefit of Grantor and added to the balance in the Replacement Reserve and
shall be disbursed for payment of the items for which other funds in the
Replacement Reserve are to be disbursed.


 


4.32                        Dissemination
of Information.


 


If Grantee determines at any time to sell, transfer or assign the Note,
this Security Instrument and the other Loan Documents, and any or all servicing
rights with respect thereto, or to grant participations therein (the “Participations”)
or issue mortgage pass-through certificates or other securities evidencing a
beneficial interest in a rated or unrated public offering or private placement
(the “Securities”), Grantee may forward to each purchaser, transferee,
assignee,


 


57





















 


servicer, participant, investor, or their respective
successors in such Participations and/or Securities (collectively, the “Investor”)
or any Rating Agency rating such Securities, each prospective Investor and each
of the foregoing’s respective counsel, all documents and information which
Grantee now has or may hereafter acquire relating to the Debt and to Grantor,
any Guarantor, any Indemnitor and the Property, which shall have been furnished
by Grantor, any Guarantor, or any Indemnitor, as Grantee determines necessary
or desirable.


 


4.33                        Secondary
Market.


 


Grantee may sell, transfer and deliver the Loan Documents to one or
more Investors in the secondary mortgage market. In connection with such sale,
Grantee may retain or assign responsibility for servicing the loan or may
delegate some or all of such responsibility and/or obligations to a servicer,
including, but not limited to, any subservicer or master servicer, on behalf of
the investors. All references to Grantee herein shall refer to and include,
without limitation, any such servicer, to the extent applicable.


 


4.34                        Certain
Matters Relating to Property Located in the State of Georgia.


 


With respect to the Property which is located in the State of Georgia,
notwithstanding anything contained herein to the contrary:


 


Power of Sale.                     (a) Upon the occurrence of an
Event of Default, Grantee, or the agent or successor of Grantee, may, at its
option, sell or offer for sale the Property in such portions, order and parcels
as Grantee may determine with or without having first taken possession of same,
to the highest bidder for cash at one or more public sales in accordance with
the terms and provisions of the law of the State of Georgia. Such sale shall be
made at the area within the courthouse of the county in which the Property (or
any portion thereof to be sold) is situated (whether the parts or parcels
thereof, if any, in different counties are contiguous or not, and without the
necessity of having any personal property hereby secured present at such sale)
which is designated by the applicable court of such county as the area in which
public sales are to take place, or, if no such area is designated, at the area
at the courthouse designated in the notice of sale as the area in which the
sale will take place, on such day and at such times as permitted under
applicable law of the State of Georgia, after advertising the time, place and
terms of sale and that portion of the Property in accordance herewith and such
law, and after having served written or printed notice of the proposed sale by
certified mail on each borrower obligated to pay the Note and other secured
indebtedness secured by this Security Deed according to the records of Grantee
in accordance with applicable law. The affidavit of any person having knowledge
of the facts to the effect that such service was completed shall be prima facie
evidence of the fact of service. The time, place and terms of any such sale
shall be advertised once a week for four (4) consecutive weeks, immediately
prior to the date of sale (but without regard to the number of days elapsed
intervening between the date of publication of the first advertisement and the
date of sale) in a newspaper in which sheriff’s sales are advertised in said
county. In the event of any such public sale pursuant to the aforesaid power of
sale and agency, Grantor shall be deemed a tenant holding over and shall
forthwith deliver possession of the Property to the purchaser or purchasers at
such sale or be summarily dispossessed according to provisions of law
applicable to tenants holding over.


 


58





















 


At any such public sale, Grantee may execute and deliver in the name of
Grantor to the purchaser a conveyance of the Property or any part of the
Property in fee simple. Grantor hereby constitutes and appoints Grantee the
agent and attorney-in-fact of Grantor to make such sale and conveyance, and
thereby to divest Grantor of all right, title and equity that Grantor may have
in and to the 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 death or otherwise, are granted as
cumulative of the other remedies provided hereby or by law for collection of
the Debt and shall not be exhausted by one exercise thereof but may be
exercised until full payment of all of the Debt. In the event of any sale under
this Deed by virtue of the exercise of the powers herein granted, or pursuant
to any order in any judicial proceeding or otherwise, the Property may be sold
in its entirety or in separate parcels and in such manner or order as Grantee
in its sole discretion may elect, and if Grantee so elects, Grantee may sell
the personal property covered by this Deed at one or more separate sales in any
manner permitted by the Uniform Commercial Code of Georgia, and one or more
exercises of the powers herein granted shall not extinguish or exhaust such
powers, until all the Property is sold or the Note and other secured
indebtedness is paid in full. If the Note and other secured indebtedness is now
or hereafter further secured by any chattel mortgages, deeds to secure debt or
deeds of trust, pledges, contracts or guaranty, assignments of lease, or other
security instruments, Grantee at its option may exhaust the remedies granted
under any of said security instruments either concurrently or independently,
and in such order as Grantee may determine.


 


(b)                                 Upon
any foreclosure sale or sales of all or any portion of the Property under the
power herein granted, Grantee may bid for and purchase the Property and shall
be entitled to apply all or any part of the Debt as a credit to the purchase
price.


 


(c)                                  In
the event of a foreclosure or a sale of all or any portion of the Property under
the power herein granted, the proceeds of said sale shall be applied, in
whatever order Grantee in its sole discretion may decide, to the expenses of such
sale and of all proceedings in connection therewith (including, without
limitation, attorneys’ fees and expenses), to insurance premiums, liens,
assessments, taxes and charges (including, without limitation, utility charges advanced
by Grantee), to payment of the outstanding principal balance of the Debt, and
to the accrued interest on all of the foregoing; and the remainder, if any,
shall be paid to Grantor, or to the person or entity lawfully entitled thereto.


 


4.35                        WAIVER
OF NOTICE AND HEARING.


 


GRANTOR HEREBY WAIVES ANY RIGHT IT MAY HAVE UNDER
THE CONSTITUTION OF THE STATE OF GEORGIA OR THE CONSTITUTION OF THE UNITED
STATES OF AMERICA TO NOTICE OR TO A JUDICIAL HEARING PRIOR TO THE EXERCISE OF
ANY RIGHT OR REMEDY PROVIDED BY THIS SECURITY DEED AND GRANTOR WAIVES ITS
RIGHTS, IF ANY, TO SET ASIDE OR


 


59





















 


INVALIDATE
ANY SALE DULY CONSUMMATED IN ACCORDANCE WITH THE PROVISIONS OF THIS
SECURITY DEED ON THE GROUND (IF SUCH BE THE CASE) THAT THE SALE WAS CONSUMMATED WITHOUT A PRIOR JUDICIAL HEARING. ALL WAIVERS BY GRANTOR IN
THIS PARAGRAPH HAVE BEEN VOLUNTARILY,
INTELLIGENTLY AND KNOWINGLY, AFTER THE GRANTOR HAS BEEN FIRST INFORMED BY COUNSEL OF ITS OWN CHOOSING
AS TO POSSIBLE ALTERNATIVE RIGHTS, AND HAVE BEEN AS AN INTENTIONAL RELINQUISHMENT AND ABANDONMENT OF
A KNOWN RIGHT AND PRIVILEGE.


 


4.36                        Attorneys’
Fee.


 


When used herein
and in the other Loan Documents, the phrase “attorneys’ fees and expenses”
shall mean attorneys’ fees and expenses actually incurred without the benefit
of statutory presumption.


 


[THE BALANCE OF THIS PAGE IS
INTENTIONALLY LEFT BLANK]


 


60





















 


IN WITNESS
WHEREOF, Grantor has executed this Security Instrument on the day and year
first written above.


 


 


	
   

  	
  GRANTOR:

  
	
   

  	
   

  
	
   

  	
  Henry Town Center, LLC

  
	
   

  	
  A Georgia limited
  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven D. Bell

  	
   

  
	
   

  	
   

  	
  Steven D. Bell

  
	
   

  	
   

  	
  Managing Member

  



 


 


	
  Signed, sealed and
  delivered

  
	
  in the presence of:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Barbara R. Christy

  	
   

  
	
  Print Name:

  	
  Barbara R. Christy

  	
   

  
	
   

  	
  Unofficial Witness

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Lois J. Blankenship

  	
   

  
	
  Notary Public

  	
   

  
	
  (Notarial Seal)

  	
   

  
	
   

  	
   

  
	
  My commission expires: April 7,
  2007

  	
   

  



 





















 


	
  Signed, sealed and
  delivered

  	
  Alpha
  Seven, LLC

  
	
  in the presence of the
  following

  	
  a Delaware limited
  liability company

  
	
  witnesses:

  	
   

  
	
   

  	
  By:

  	
  Edwards Mill Village
  Associates Limited

  
	
  /s/ [ILLEGIBLE]

  	
   

  	
   

  	
  Partnership, a North
  Carolina limited

  
	
  Unofficial Witness

  	
   

  	
   

  	
  partnership

  
	
   

  	
  Its:

  	
  Sole Member

  
	
  /s/ [ILLEGIBLE]

  	
   

  	
   

  
	
  Notary Public

  	
   

  	
  By:

  	
  ALPHA THREE, a North
  Carolina

  
	
   

  	
   

  	
   

  	
  general partnership

  
	
  (NOTARY SEAL)

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Its:

  	
  General Partner

  
	
  My Commission Expires:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Robert F. Andrews,
  III

  	
   

  
	
  9-11-04

  	
   

  	
   

  	
   

  	
  Robert F. Andrews, III

  
	
   

  	
   

  	
   

  	
  General
  Partner

  
									



 





















 


	
   

  	
  Elliston Henry Town
  Center, LLC

  
	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
  By

  	
  Winston Three, LLC, a
  North Carolina

  
	
   

  	
   

  	
  Limited liability
  company, its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ W. Leon Elliston

  	
   

  
	
   

  	
   

  	
   

  	
  W. Leon Elliston

  
	
   

  	
   

  	
   

  	
  Sole Member/Manager

  
	
   

  	
   

  	
   

  



 


	
  Signed, sealed and
  delivered

  
	
  in the presence of:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ C.W. Eller

  	
   

  
	
  Print Name:

  	
  C.W. ELLER

  	
   

  
	
   

  	
  Unofficial Witness

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Cameron R. Higdon

  	
   

  
	
  Notary Public

  	
   

  
	
  (Notarial Seal)

  	
   

  
	
   

  	
   

  
	
  My commission expires:
  02/25/2006

  	
   

  
	
   

  	
   

  
	
   

  	
  [Signatures
  continue on following page]

  



 





















 


	
   

  	
  Owen Henry Town Center,
  LLC

  
	
   

  	
  A Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Benjamin Ligon Owen

  	
   

  
	
   

  	
   

  	
  Benjamin Ligon Owen

  
	
   

  	
   

  	
  Sole Member/Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signed, sealed and
  delivered

  	
   

  
	
  in the presence of:

  	
   

  
	
   

  
	
   

  
	
  /s/ Lydia Owen Boesch

  	
   

  	
   

  
	
  Print Name:

  	
  Lydia Owen Boesch

  	
   

  
	
   

  	
  Unofficial Witness

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ [ILLEGIBLE]

  	
   

  	
   

  
	
  Notary Public

  	
   

  
	
  (Notarial Seal)

  	
   

  
	
   

  	
   

  
	
  My commission expires: June 26,
  2004

  	
   

  
							



 





















 


	
   

  	
   

  	
  DSCongdonA, LLC

  
	
   

  	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ Robert A. Cox, Jr.

  	
   

  
	
   

  	
   

  	
   

  	
  Robert A. Cox, Jr.

  
	
   

  	
   

  	
   

  	
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed, sealed and
  delivered

  	
   

  	
   

  
	
  in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Jirleen K. Sandhu

  	
   

  
	
  Print Name:

  	
  Jirleen K. Sandhu

  	
   

  
	
   

  	
  Unofficial Witness

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ [ILLEGIBLE]

  	
   

  
	
  Notary Public

  	
   

  
	
  (Notarial Seal)

  	
   

  
	
   

  	
   

  
	
  My commission expires:
  10/31/2006

  	
   

  



 





















 


	
   

  	
   

  	
  JWCongdonA, LLC

  
	
   

  	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Robert A. Cox, Jr.,

  	
   

  
	
   

  	
   

  	
   

  	
  Robert A. Cox, Jr.,

  
	
   

  	
   

  	
   

  	
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed, sealed and
  delivered

  	
   

  	
   

  
	
  in the presence of:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Jirleen K. Sandhu

  	
   

  
	
  Print Name:

  	
  Jirleen K. Sandhu

  	
   

  
	
   

  	
  Unofficial Witness

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ [ILLEGIBLE]

  	
   

  
	
  Notary Public

  	
   

  
	
  (Notarial Seal)

  	
   

  
	
   

  	
   

  
	
  My commission expires:
  10/31/2006

  	
   

  



 





















 


	
   

  	
   

  	
  KCVanstoryA, LLC

  
	
   

  	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Robert A. Cox, Jr.

  	
   

  
	
   

  	
   

  	
   

  	
  Robert A. Cox, Jr.

  
	
   

  	
   

  	
   

  	
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed, sealed and
  delivered

  	
   

  	
   

  
	
  in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Jirleen K. Sandhu

  	
   

  	
   

  
	
  Print Name:

  	
  Jirleen K. Sandhu

  	
   

  
	
   

  	
  Unofficial Witness

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ [ILLEGIBLE]

  	
   

  
	
  Notary Public

  	
   

  
	
  (Notarial Seal)

  	
   

  
	
   

  	
   

  
	
  My commission expires:
  10/31/2006

  	
   

  



 





















 


	
   

  	
   

  	
  ALCongdonA, LLC

  
	
   

  	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Robert A. Cox, Jr.

  	
   

  
	
   

  	
   

  	
   

  	
  Robert A. Cox, Jr.

  
	
   

  	
   

  	
   

  	
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed, sealed and
  delivered

  	
   

  
	
  in the presence of:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Jirleen K. Sandhu

  	
   

  
	
  Print Name:

  	
  Jirleen K. Sandhu

  	
   

  
	
   

  	
  Unofficial Witness

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ [ILLEGIBLE]

  	
   

  
	
  Notary Public

  	
   

  
	
  (Notarial Seal)

  	
   

  
	
   

  	
   

  
	
  My commission expires:
  10/31/2006

  	
   

  



 





















 


	
   

  	
   

  	
  SCTerryA, LLC

  
	
   

  	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Robert A. Cox, Jr.

  	
   

  
	
   

  	
   

  	
   

  	
  Robert A. Cox, Jr.

  
	
   

  	
   

  	
   

  	
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed, sealed and delivered

  	
   

  	
   

  
	
  in the presence of:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Jirleen K. Sandhu

  	
   

  
	
  Print Name:

  	
  Jirleen K. Sandhu

  	
   

  
	
   

  	
  Unofficial Witness

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ [ILLEGIBLE]

  	
   

  
	
  Notary Public

  	
   

  
	
  (Notarial Seal)

  	
   

  
	
   

  	
   

  
	
  My commission expires:
  10/31/2006

  	
   

  



 





















 


	
   

  	
   

  	
  JRCongdon,Jr.A, LLC

  
	
   

  	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Robert A. Cox, Jr.

  	
   

  
	
   

  	
   

  	
   

  	
  Robert A. Cox, Jr.

  
	
   

  	
   

  	
   

  	
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed, sealed and
  delivered

  	
   

  	
   

  
	
  in the presence of:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Jirleen K. Sandhu

  	
   

  
	
  Print Name:

  	
  Jirleen K. Sandhu

  	
   

  
	
   

  	
  Unofficial Witness

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ [ILLEGIBLE]

  	
   

  
	
  Notary Public

  	
   

  
	
  (Notarial Seal)

  	
   

  
	
   

  	
   

  
	
  My commission expires: 10/31/2006

  	
   

  



 





















 


	
   

  	
   

  	
  Spence Henry Town
  Center, LLC

  
	
   

  	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ David A. Spence

  	
   

  
	
   

  	
   

  	
   

  	
  David Spence

  
	
   

  	
   

  	
   

  	
  Sole Member/Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Signed, sealed and
  delivered

  	
   

  	
   

  
	
  in the presence of:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Jeanette DeVeau

  	
   

  
	
  Print Name:

  	
  Jeanette DeVeau

  	
   

  
	
   

  	
  Unofficial Witness

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Leigh Ann Weber

  	
   

  
	
  Notary Public

  	
   

  
	
  (Notarial Seal)

  	
   

  
	
   

  	
   

  
	
  My commission expires:
  3-3-2007

  	
   

  



 





















 


	
   

  	
   

  	
  Jay Henry Town Center,
  LLC

  
	
   

  	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Jay Family Limited
  Partnership, a North

  
	
   

  	
   

  	
   

  	
  Carolina limited partnership,
  its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Mack C. Jay III

  	
   

  
	
   

  	
   

  	
   

  	
  Name: 

  	
  Mack C. Jay III

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   Gen. Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signed, sealed and
  delivered

  	
   

  
	
  in the presence of:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Gregory S. Williams

  	
   

  
	
  Print Name:

  	
  Gregory S. Williams

  	
   

  
	
   

  	
  Unofficial Witness

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ M. Lynn Pound

  	
   

  
	
  Notary Public

  	
   

  
	
  (Notarial Seal)

  	
   

  
	
   

  	
   

  
	
  My commission expires:
  7-25-2007

  
									



 





















 


EXHIBIT “A” 


LEGAL DESCRIPTION


 


Developer Tract 1


 


All that tract or parcel
of land lying and being in Land Lots 82 & 111 of the 6th
District, Henry County, Georgia, and being more particularly described as
follows:


 


Commencing at a concrete
right-of-way monument found at the southwestern corner of the mitered intersection of
the western right-of-way of Interstate Highway No. 75 (variable right-of-way)
and the northern right-of-way of Jonesboro Road (variable right-of-way); Thence
along the northern right-of-way of Jonesboro Road (variable right-of-way) North
71 degrees 36 minutes 51 seconds West, a distance of 111.85 feet to a concrete
right-of-way monument found; Thence along said right-of-way South 18 degrees 19
minutes 24 seconds West, a distance of 25.00 feet to a point; Thence North 71
degrees 36 minutes 34 seconds West, a distance of 88.11 feet to a 1/2 inch
crimped top pipe found; Thence North 18 degrees 19 minutes 21 seconds East, a
distance of 88.00 feet to a point; Thence North 71 degrees 41 minutes 15
seconds West, a distance of 665.75 feet to a 5/8 inch rebar set; said point
being the TRUE POINT OF BEGINNING; Thence along said right-of-way North 71
degrees 41 minutes 15 seconds West, a distance of 88.50 feet to a 5/8 inch
rebar set; Thence leaving said right-of-way North 18 degrees 15 minutes 14
seconds East, a distance of 24.16 feet to a 5/8 inch rebar set; Thence South 71
degrees 44 minutes 46 seconds East, a distance of 20.00 feet to a 5/8 inch
rebar set; Thence North 18 degrees 15 minutes 14 seconds East, a distance of
188.56 feet to a pk nail set; Thence along a curve to the left, an arc length
of 147.29 feet, said curve having a radius of 490.00 feet, with a chord
distance of 146.73 feet, at North 09 degrees 38 minutes 34 seconds East, to a
5/8 inch rebar set; Thence North 01 degrees 01 minutes 54 seconds East, a
distance of 29.74 feet to a 5/8 inch rebar set; Thence North 43 degrees 00
minutes 13 seconds West, a distance of 26.67 feet to a 5/8 inch rebar set;
Thence North 87 degrees 02 minutes 20 seconds West, a distance of 130.46 feet
to a 5/8 inch rebar set; Thence North 72 degrees 57 minutes 01 seconds West, a
distance of 49.30 feet to a 5/8 inch rebar set; Thence North 87 degrees 02
minutes 20 seconds West, a distance of 161.78 feet to a 5/8 inch rebar set;
Thence North 02 degrees 57 minutes 40 seconds East, a distance of 76.00 feet to
a pk nail set; Thence North 87 degrees 02 minutes 20 seconds West, a distance
of 52.04 feet to a pk nail set; Thence North 02 degrees 57 minutes 40 seconds
East, a distance of 254.40 feet to a pk nail set; Thence South 87 degrees 02
minutes 20 seconds East, a distance of 82.00 feet to a point; Thence North 02
degrees 57 minutes 40 seconds East, a distance of 332.88 feet to a pk nail set;
Thence North 87 degrees 02 minutes 20 seconds West, a distance of 93.17 feet to
a pk nail set; Thence North 02 degrees 57 minutes 40 seconds East, a distance
of 181.83 feet to a pk nail set; Thence South 87 degrees 02 minutes 20 seconds
East, a distance of 12.00 feet to a pk nail set; Thence North 02 degrees 57
minutes 40 seconds East, a distance of 96.69 feet to a pk nail set; Thence
South 87 degrees 02 minutes 20 seconds East, a distance of 108.00 feet to a pk
nail set; Thence North 02 degrees 57 minutes 40 seconds East, a distance of
579.84 feet to a 5/8 inch rebar set; Thence North 89 degrees 59 minutes 42
seconds East, a distance of 145.88 feet to a 1/2 inch rebar found; Thence South
79 degrees 37 minutes 33 seconds East, a distance of 150.01 feet to a 1/2 inch
rebar found; Thence North 85 degrees 56 minutes 21 seconds East, a distance of
84.92 feet to a 1/2 inch rebar
found; Thence North 72


 





















 


degrees 16 minutes 16 seconds
East, a distance of 119.73 feet to a 5/8 inch rebar found; Thence North 42
degrees 50 minutes 27 seconds East, a distance of 123.21 feet to a 3\4 inch
open top pipe found on the western right-of-way of Interstate Highway No. 75
(variable right-of-way); Thence along said right-of-way, South 19 degrees 05
minutes 25 seconds East, a distance of 715.05 feet to a point; Thence leaving
said right-of-way South 02 degrees 57 minutes 40 seconds West, a distance of
321.79 feet to a point; Thence South 47 degrees 57 minutes 40 seconds West, a
distance of 25.73 feet to a point; Thence South 02 degrees 57 minutes 40
seconds West, a distance of 194.72 feet to a point; Thence South 88 degrees 59
minutes 16 seconds East, a distance of 110.72 feet to a point; Thence North 01
degrees 00 minutes 44 seconds East, a distance of 20.84 feet to a point; Thence
South 88 degrees 59 minutes 16 seconds East, a distance of 99.51 feet to a
point on the western right-of-way of Interstate Highway No. 75 (variable
right-of-way); Thence along said right-of-way South 22 degrees 00 minutes 10
seconds East, a distance of 69.74 feet to a 5/8 inch rebar found; Thence
leaving said right-of-way North 88 degrees 59 minutes 16 seconds West, a
distance of 307.56 feet to a pk nail set; Thence South 81 degrees 36 minutes 34
seconds West, a distance of 259.79 feet to a point; Thence North 88 degrees 58
minutes 17 seconds West, a distance of 179.04 feet to a pk nail set; Thence
South 01 degrees 01 minutes 54 seconds West, a distance of 564.43 feet to a pk
nail set; Thence South 71 degrees 44 minutes 46 seconds East, a distance of
40.50 feet to a point; Thence South 66 degrees 24 minutes 28 seconds West, a
distance of 28.19 feet to a point; Thence South 18 degrees 15 minutes 14
seconds West, a distance of 206.00 feet to a 5/8” rebar set located on the
Northern right-of-way of Jonesboro Road, said point being the TRUE POINT OF
BEGINNING.


 


Said tract contains
26.177 Acres.


 


TOGETHER
WITH:


 


Developer Tract 2


 


All that tract or parcel
of land lying and being in Land Lots 83 & 110 of the 6th
District, Henry County, Georgia, and being more particularly described as
follows:


 


Commencing at a concrete
right-of-way monument found at the southwestern corner of the mitered intersection of
the western right-of-way of Interstate Highway No. 75 (variable right-of-way)
and the northern right-of-way of Jonesboro Road (variable right-of-way); Thence
along the northern right-of-way of Jonesboro Road (variable right-of-way) North
71 degrees 36 minutes 51 seconds West, a distance of 111.85 feet to a concrete
right-of-way monument found; Thence along said right-of-way South 18 degrees 19
minutes 24 seconds West, a distance of 25.00 feet to a point; Thence North 71
degrees 36 minutes 34 seconds West, a distance of 88.11 feet to a 1/2 inch
crimped top pipe found; Thence North 18 degrees 19 minutes 21 seconds East, a
distance of 88.00 feet to a point; Thence North 71 degrees 41 minutes 15
seconds West, a distance of 925.05 feet to a point; Thence along a curve to the
left, an arc length of 131.42 feet, said curve having a radius of 1417.32 feet,
with a chord distance of 131.37 feet, at North. 74 degrees 20 minutes 37
seconds West, to a point; Thence along a curve to the left, an arc length of
212.21 feet, said curve having a radius of 1417.32 feet, with a chord distance
of 212.01 feet, at North 81 degrees 17 minutes 21 seconds West, to a point;
Thence along a curve to the left, an arc length


 





















 


of 50.00 feet, said curve
having a radius of 1417.32 feet, with a chord distance of 50.00 feet, at North
86 degrees 35 minutes 21 seconds West, to a 5/8 inch rebar found; Thence along
a curve to the left, an arc length of 17.27 feet, said curve having a radius of
1417.32 feet, with a chord distance of 17.27 feet, at North 87 degrees 56
minutes 56 seconds West, to a 5/8 inch rebar set; Thence North 88 degrees 17
minutes 53 seconds West, a distance of 487.47 feet to a 5/8 inch rebar set;
said 5/8 inch rebar set being the TRUE POINT OF BEGINNING; Thence South 02
degrees 57 minutes 40 seconds West, a distance of 38.78 feet to a 5/8 inch
rebar set; Thence North 88 degrees 07 minutes 55 seconds West, a distance of
101.03 feet to a 5/8 inch rebar set; Thence leaving said right-of-way North 02
degrees 57 minutes 40 seconds East, a distance of 30.00 feet to a 5/8 inch
rebar set; Thence South 88 degrees 07 minutes 55 seconds East, a distance of 20.00
feet to a 5/8 inch rebar set; Thence North 02 degrees 57 minutes 40 seconds
East, a distance of 637.29 feet to a 5/8 inch rebar set; Thence North 87
degrees 02 minutes 20 seconds West, a distance of 29.37 feet to a pk nail set;
Thence South 02 degrees 57 minutes 40 seconds West, a distance of 54.68 feet to
a pk nail set; Thence North 87 degrees 02 minutes 20 seconds West, a distance
of 308.09 feet to a pk nail set; Thence South 02 degrees 57 minutes 40 seconds
West, a distance of 65.67 feet to a pk nail set; Thence North 87 degrees 02
minutes 20 seconds West, a distance of 511.22 feet to a 5/8 inch rebar set on
the Eastern right-of-way of Mount Olive Road (variable right-of-way); Thence
along said right-of-way the following courses and distances; North 18 degrees
38 minutes 12 seconds West, a distance of 108.35 feet to a 5/8 inch rebar set;
Thence along a curve to the right, an arc length of 81.70 feet, said curve
having a radius of 860.00 feet, with a chord distance of 81.67 feet, at North
15 degrees 54 minutes 54 seconds West, to a 5/8 inch rebar set; Thence along a
curve to the right, an arc length of 330.70 feet, said curve having a radius of
860.00 feet, with a chord distance of 328.66 feet, at North 02 degrees 10
minutes 39 seconds West, to a 5/8 inch rebar set; Thence North 08 degrees 50
minutes 26 seconds East, a distance of 15.23 feet to a 5/8 inch rebar set;
Thence North 09 degrees 24 minutes 00 seconds East, a distance of 26.66 feet to
a 5/8 inch rebar set; Thence leaving said right-of-way, South 55 degrees 04
minutes 52 seconds East, a distance of 48.90 feet to a 5/8 inch rebar found;
Thence South 87 degrees 02 minutes 20 seconds East, a distance of 199.65 feet
to an angle iron found; Thence South 89 degrees 33 minutes 01 seconds East, a
distance of 97.25 feet to a 5/8 inch rebar found; Thence North 51 degrees 07
minutes 53 seconds East, a distance of 212.77 feet to a 5/8 inch rebar set;
Thence North 51 degrees 07 minutes 53 seconds East, a distance of 196.92 feet
to a 5/8 inch rebar found; Thence North 02 degrees 57 minutes 40 seconds East,
a distance of 194.91 feet to a 5/8 inch rebar set; Thence South 87 degrees 02
minutes 20 seconds East, a distance of 330.21 feet to a 5/8 inch rebar found;
Thence North 02 degrees 57 minutes 40 seconds East, a distance of 127.12 feet
to a point on the centerline of Walnut Creek (said point also herein called “Point
A”); Thence northeasterly, easterly, and southeasterly along the centerline of
Walnut Creek and following the meanderings thereof 278.17 feet, more or less,
to a point on the centerline of Walnut Creek (said point also herein called “Point
B”) said Point B also being located by commencing at Point A and following the
traverse line described as follows: North 78 degrees 29 minutes 37 seconds
East, a distance of 61.76 feet to a point; Thence North 71 degrees 58 minutes
40 seconds East, a distance of 63.78 feet to a point; Thence North 78 degrees
18 minutes 44 seconds East, a distance of 63.54 feet to a point; Thence North
87 degrees 43 minutes 53 seconds East, a distance of 60.45 feet to a point;
Thence North 69 degrees 07 minutes 39 seconds East, a distance of 28.64 feet to
Point B; Thence leaving the said centerline of Walnut Creek South 02 degrees 57
minutes 40 seconds West, a distance of 285.39 feet to a 5/8 inch rebar set;
Thence


 





















 


North 87 degrees 02
minutes 20 seconds West, a distance of 12.00 feet to a 5/8 inch rebar set;
Thence South 02 degrees 57 minutes 40 seconds West, a distance of 247.00 feet
to a pk nail set; Thence South 87 degrees 02 minutes 20 seconds East, a
distance of 12.00 feet to a point; Thence South 02 degrees 57 minutes 40
seconds West, a distance of 197.81 feet to a pk nail set; Thence South 87
degrees 02 minutes 20 seconds East, a distance of 24.51 feet to a pk nail set;
Thence South 02 degrees 57 minutes 40 seconds West, a distance of 318.69 feet
to a pk nail set; Thence North 87 degrees 02 minutes 20 seconds West, a
distance of 20.20 feet to a pk nail set; Thence South 02 degrees 57 minutes 40
seconds West, a distance of 274.61 feet to a 5/8 inch rebar set; Thence North
87 degrees 02 minutes 20 seconds West, a distance of 58.80 feet to a 5/8 inch
rebar set; Thence North 87 degrees 02 minutes 20 seconds West, a distance of
162.21 feet to a 5/8 inch rebar set; Thence South 47 degrees 57 minutes 40
seconds West, a distance of 28.69 feet to a 5/8 inch rebar set; Thence South 02
degrees 57 minutes 40 seconds West, a distance of 355.26 feet to a 5/8 inch
rebar set; Thence South 88 degrees 17 minutes 53 seconds East, a distance of
16.89 feet to a 5/8 inch rebar set; said rebar set being the TRUE POINT OF
BEGINNING.


 


Said tract contains
24.261 Acres.


 


TOGETHER
WITH:


 


Developer Tract 3


 


All that tract or parcel
of land lying and being in Land Lot 110 of the 6th District, Henry
Corner, Georgia, and being more particularly described as follows:


 


Commencing at a concrete
right-of-way monument found at the southwestern corner of the mitered intersection of
the western right-of-way of Interstate Highway No. 75 (variable right-of-way)
and the northern right-of-way of Jonesboro Road (variable right-of-way); Thence
along the northern right-of-way of Jonesboro Road (variable right-of-way) North
71 degrees 36 minutes 51 seconds West, a distance of 111.85 feet to a concrete
right-of-way monument found; Thence along said right-of-way South 18 degrees 19
minutes 24 seconds West, a distance of 25.00 feet to a point; Thence North 71 degrees
36 minutes 34 seconds West, a distance of 88.11 feet to a 1/2 inch crimped top
pipe found; Thence North 18 degrees 19 minutes 21 seconds East, a distance of
88.00 feet to a point; Thence North 71 degrees 41 minutes 15 seconds West, a
distance of 925.05 feet to a point; Thence along a curve to the left, an arc
length of 131.42 feet, said curve having a radius of 1417.32 feet, with a chord
distance of 131.37 feet, at North 74 degrees 20 minutes 37 seconds West, to a
point; Thence along a curve to the left, an arc length of 212.21 feet, said
curve having a radius of 1417.32 feet, with a chord distance of 212.01 feet, at
North 81 degrees 17 minutes 21 seconds West, to a point; Thence along a curve
to the left, an arc length of 50.00 feet, said curve having a radius of 1417.32
feet, with a chord distance of 50.00 feet, at North 86 degrees 35 minutes 21
seconds West, to a 5/8 inch rebar found; Thence along a curve to the left, an
arc length of 17.27 feet, said curve having a radius of 1417.32 feet, with a
chord distance of 17.27 feet, at North 87 degrees 56 minutes 56 seconds West to
a 5/8 inch rebar set; Thence North 88 degrees 17 minutes 53 seconds West, a
distance of 487.47 feet to a 5/8 inch rebar set; Thence South 02 degrees 57
minutes 40 seconds West, a distance of 38.78 feet to a 5/8 inch rebar set;
Thence North 88 degrees 07 minutes 55 seconds West, a distance of 101.03 feet


 





















 


to a 5/8 inch rebar set;
said point being the TRUE POINT OF BEGINNING; Thence along the right-of-way of
Jonesboro Road, North 88 degrees 07 minutes 55 seconds West, a distance of
684.41 feet to a 5/8 inch rebar set at the intersection of the northern
right-of-way of Jonesboro Road (variable right-of-way) and eastern right-of-way
of Mount Olive Road (variable right-of-way); Thence along the eastern
right-of-way of Mount Olive Road (variable right-of-way) North 22 degrees 04
minutes 25 seconds West, a distance of 31.15 feet to a 5/8 inch rebar set;
Thence along said right-of-way North 15 degrees 51 minutes 54 seconds West, a
distance of 49.30 feet to a 5/8 inch rebar set; Thence North 07 degrees 39
minutes 18 seconds West, a distance of 298.06 feet to a 5/8 inch rebar set;
Thence along a curve to the left, an arc length of 154.10 feet, said curve
having a radius of 803.90 feet, with a chord distance of 153.86 feet, at North
13 degrees 08 minutes 46 seconds West, to a 5/8 inch rebar set; Thence North 18
degrees 38 minutes 12 seconds West, a distance of 48.10 feet to a 5/8 inch
rebar set; Thence leaving said right-of-way South 87 degrees 02 minutes 20
seconds East, a distance of 511.22 feet to a pk nail set; Thence North 02
degrees 57 minutes 40 seconds East, a distance of 65.67 feet to a pk nail set;
Thence South 87 degrees 02 minutes 20 seconds East, a distance of 308.09 feet
to a pk nail set; Thence North 02 degrees 57 minutes 40 seconds East, a
distance of 54.68 feet to a pk nail set; Thence South 87 degrees 02 minutes 20
seconds East, a distance of 29.37 feet to a 5/8 inch rebar set; Thence South 02
degrees 57 minutes 40 seconds West, a distance of 637.29 feet to a 5/8 inch
rebar set; Thence North 88 degrees 07 minutes 55 seconds West, a distance of
20.00 feet to a 5/8 inch rebar set; Thence South 02 degrees 57 minutes 40
seconds West, a distance of 30.00 feet to a 5/8 inch rebar set; said point
being the TRUE POINT OF BEGINNING.


 


Said tract contains
10.379 Acres.


 


TOGETHER
WITH:


 


Outparcel 7


 


All that tract or parcel
of land lying and being in Land Lot 110 of the 6th District, Henry
County, Georgia, and being more particularly described as follows:


 


Commencing at a concrete
right-of-way monument found at the southwestern corner of the mitered intersection of
the western right-of-way of Interstate Highway No. 75 (variable right-of-way)
and the northern right-of-way of Jonesboro Road (variable right-of-way); Thence
along the northern right-of-way of Jonesboro Road (variable right-of-way) North
71 degrees 36 minutes 51 seconds West, a distance of 111.85 feet to a concrete
right-of-way monument found; Thence along said right-of-way South 18 degrees 19
minutes 24 seconds West, a distance of 25.00 feet to a point; Thence North 71
degrees 36 minutes 34 seconds West, a distance of 88.11 feet to a 2 1/2  inch
crimped top pipe found; Thence North 18 degrees 19 minutes 21 seconds East, a
distance of 88.00 feet to a point; Thence North 71 degrees 41 minutes 15
seconds West, a distance of 925.05 feet to a point; Thence along a curve to the
left, an arc length of 131.42 feet, said curve having a radius of 1417.32 feet,
with a chord distance of 131.37 feet, at North 74 degrees 20 minutes 37 seconds
West, to a point; Thence along a curve to the left, an arc length of 212.21
feet, said curve having a radius of 1417.32 feet, with a chord distance of
212.01 feet, at North 81 degrees 17 minutes 21 seconds West, to a point; Thence
along a curve to the left, an arc length of 50.00 feet, said curve having a
radius of 1417.32 feet, with a chord distance of 50.00 feet, at


 





















 


North 86 degrees 35
minutes 21 seconds West, to a 5/8” rebar found; said point being the TRUE POINT OF BEGINNING; Thence along said right-of-way
along a curve to the left, an arc length of 17.27 feet, said curve having a
radius of 1417.32 feet, with a chord distance of 17.27 feet, at North 87
degrees 56 minutes 56 seconds West, to a 5/8 inch rebar set; Thence North 88
degrees 17 minutes 53 seconds West, a distance of 187.78 feet to a 5/8” rebar
set; Thence leaving said right-of-way North 02 degrees 57 minutes 40 seconds
East, a distance of 368.59 feet to a PK nail set; Thence South 87 degrees 02
minutes 20 seconds East, a distance of 71.79 feet to a 5/8” rebar found; Thence
along a curve to the right, an arc length of 119.20 feet, said curve having a
radius of 490.00 feet, with a chord distance of 118.90 feet, at South 80
degrees 04 minutes 12 seconds East, to a 5/8” rebar found; Thence South 34
degrees 53 minutes 21 seconds East, a distance of 24.74 feet to a 5/8” rebar
found; Thence South 02 degrees 57 minutes 40 seconds West, a distance of 330.23
feet to a 5/8” rebar found on said right-of-way of Jonesboro Road, said point being
the TRUE POINT OF BEGINNING.


 


Said tract of land
contain 1.703 Acres.


 





















 


EXHIBIT B


 


	
  Debtor’s name:

  	
   

  	
  Henry Town Center, LLC

  
	
   

  	
   

  	
   

  
	
  Debtor’s organizational
  structure:

  	
   

  	
  limited liability
  company

  
	
   

  	
   

  	
   

  
	
  Debtor’s principal
  place of business:

  	
   

  	
  823 North Elm Street,
  Suite 200

  Greensboro, North Carolina 27401

  
	
   

  	
   

  	
   

  
	
  Debtor’s mailing
  address:

  	
   

  	
  823 North Elm Street,
  Suite 200

  Greensboro, North Carolina 27401

  
	
   

  	
   

  	
   

  
	
  Time period for which
  Debtor has been using or operating under said names and organizational
  structure without change:

  	
   

  	
  2002

  
	
   

  	
   

  	
   

  
	
  Secured Party’s name:

  	
   

  	
  Wachovia Bank, National
  Association

  
	
   

  	
   

  	
   

  
	
  Secured
  Party’s organizational structure:

  Secured Party’s mailing address:

  	
   

  	
  a national banking
  association

  201 South Tryon Street, Suite 130

  PMB Box #4

  Charlotte, North Carolina 28202

  



 


[Continued on next page]


 


B-1





















 


	
  Debtor’s name:

  	
   

  	
  Alpha Seven LLC

  
	
   

  	
   

  	
   

  
	
  Debtor’s organizational
  structure:

  	
   

  	
  limited liability
  company

  
	
   

  	
   

  	
   

  
	
  Debtor’s principal
  place of business:

  	
   

  	
  5151 Glenwood Avenue

  Raleigh, North Carolina 27612

  
	
   

  	
   

  	
   

  
	
  Debtor’s mailing
  address:

  	
   

  	
  5151 Glenwood Avenue

  Raleigh, North Carolina 27612

  
	
   

  	
   

  	
   

  
	
  Time period for which
  Debtor has been using or operating under said names and organizational
  structure without change:

  	
   

  	
  2002

  
	
   

  	
   

  	
   

  
	
  Secured Party’s name:

  	
   

  	
  Wachovia Bank, National
  Association

  
	
   

  	
   

  	
   

  
	
  Secured
  Party’s organizational structure:

  Secured Party’s mailing address:

  	
   

  	
  a national banking
  association

  201 South Tryon Street, Suite 130

  PMB Box #4

  Charlotte, North Carolina 28202

  



 


B-2





















 


	
  Debtor’s name:

  	
   

  	
  Elliston Henry Town
  Center

  
	
   

  	
   

  	
   

  
	
  Debtor’s organizational
  structure:

  	
   

  	
  limited liability
  company

  
	
   

  	
   

  	
   

  
	
  Debtor’s principal
  place of business:

  	
   

  	
  388 Vanderbilt Road

  Asheville, North Carolina 28803

  
	
   

  	
   

  	
   

  
	
  Debtor’s mailing
  address:

  	
   

  	
  388 Vanderbilt Road

  Asheville, North Carolina 28803

  
	
   

  	
   

  	
   

  
	
  Time period for which
  Debtor has been using or operating under said names and organizational
  structure without change:

  	
   

  	
  2002

  
	
   

  	
   

  	
   

  
	
  Secured Party’s name:

  	
   

  	
  Wachovia Bank, National
  Association

  
	
   

  	
   

  	
   

  
	
  Secured
  Party’s organizational structure:

  Secured Party’s mailing address:

  	
   

  	
  a national banking
  association

  201 South Tryon Street, Suite 130

  PMB Box #4

  Charlotte, North Carolina 28202

  



 


B-3





















 


	
  Debtor’s name:

  	
   

  	
  Owen Henry Town Center,
  LLC

  
	
   

  	
   

  	
   

  
	
  Debtor’s organizational
  structure:

  	
   

  	
  limited liability
  company

  
	
   

  	
   

  	
   

  
	
  Debtor’s principal
  place of business:

  	
   

  	
  124 5th Street N

  Columbus, MS 39701

  
	
   

  	
   

  	
   

  
	
  Debtor’s mailing
  address:

  	
   

  	
  124 5th
  Street N

  Columbus, MS 39701

  
	
   

  	
   

  	
   

  
	
  Time period for which
  Debtor has been using or operating under said names and organizational
  structure without change:

  	
   

  	
  2002

  
	
   

  	
   

  	
   

  
	
  Secured Party’s name:

  	
   

  	
  Wachovia Bank, National
  Association

  
	
   

  	
   

  	
   

  
	
  Secured
  Party’s organizational structure:

  Secured Party’s mailing address:

  	
   

  	
  a national banking
  association

  201 South Tryon Street, Suite 130

  PMB Box #4

  Charlotte, North Carolina 28202

  



 


B-4





















 


	
  Debtor’s name:

  	
   

  	
  DSCongdonA, LLC

  
	
   

  	
   

  	
   

  
	
  Debtor’s organizational
  structure:

  	
   

  	
  limited liability
  company

  
	
   

  	
   

  	
   

  
	
  Debtor’s principal
  place of business:

  	
   

  	
  701 East Byrd Street,
  15th Floor

  Richmond, Virginia 23219

  
	
   

  	
   

  	
   

  
	
  Debtor’s mailing
  address:

  	
   

  	
  701 East Byrd Street,
  15th Floor

  Richmond, Virginia 23219

  
	
   

  	
   

  	
   

  
	
  Time period for which Debtor
  has been using or operating under said names and organizational structure
  without change:

  	
   

  	
  2002

  
	
   

  	
   

  	
   

  
	
  Secured Party’s name:

  	
   

  	
  Wachovia Bank, National
  Association

  
	
   

  	
   

  	
   

  
	
  Secured
  Party’s organizational structure:

  Secured Party’s mailing address:

  	
   

  	
  a national banking
  association

  201 South Tryon Street, Suite 130

  PMB Box #4

  Charlotte, North Carolina 28202

  



 


B-5





















 


	
  Debtor’s name:

  	
   

  	
  JWCongdonA, LLC

  
	
   

  	
   

  	
   

  
	
  Debtor’s organizational
  structure:

  	
   

  	
  limited liability
  company

  
	
   

  	
   

  	
   

  
	
  Debtor’s principal
  place of business:

  	
   

  	
  701 East Byrd Street,
  15th Floor

  Richmond, Virginia 23219

  
	
   

  	
   

  	
   

  
	
  Debtor’s mailing
  address:

  	
   

  	
  701 East Byrd Street,
  15th Floor

  Richmond, Virginia 23219

  
	
   

  	
   

  	
   

  
	
  Time period for which
  Debtor has been using or operating under said names and organizational
  structure without change:

  	
   

  	
  2002

  
	
   

  	
   

  	
   

  
	
  Secured Party’s name:

  	
   

  	
  Wachovia Bank, National
  Association

  
	
   

  	
   

  	
   

  
	
  Secured
  Party’s organizational structure:

  Secured Party’s mailing address:

  	
   

  	
  a national banking
  association

  201 South Tryon Street, Suite 130

  PMB Box #4

  Charlotte, North Carolina 28202

  



 


B-6





















 


	
  Debtor’s name:

  	
   

  	
  KCVanstoryA, LLC

  
	
   

  	
   

  	
   

  
	
  Debtor’s organizational
  structure:

  	
   

  	
  limited liability
  company

  
	
   

  	
   

  	
   

  
	
  Debtor’s principal
  place of business:

  	
   

  	
  701 East Byrd Street,
  15th Floor

  Richmond, Virginia 23219

  
	
   

  	
   

  	
   

  
	
  Debtor’s mailing
  address:

  	
   

  	
  701 East Byrd Street,
  15th Floor

  Richmond, Virginia 23219

  
	
   

  	
   

  	
   

  
	
  Time period for which
  Debtor has been using or operating under said names and organizational
  structure without change:

  	
   

  	
  2002

  
	
   

  	
   

  	
   

  
	
  Secured Party’s name:

  	
   

  	
  Wachovia Bank, National
  Association

  
	
   

  	
   

  	
   

  
	
  Secured Party’s organizational structure:

  Secured Party’s mailing address:

  	
   

  	
  a national banking
  association

  201 South Tryon Street, Suite 130

  PMB Box #4

  Charlotte, North Carolina 28202

  



 


B-7





















 


	
  Debtor’s name:

  	
   

  	
  ALCongdonA, LLC

  
	
   

  	
   

  	
   

  
	
  Debtor’s organizational
  structure:

  	
   

  	
  limited liability
  company

  
	
   

  	
   

  	
   

  
	
  Debtor’s principal
  place of business:

  	
   

  	
  701 East Byrd Street,
  15th Floor

  Richmond, Virginia 23219

  
	
   

  	
   

  	
   

  
	
  Debtor’s mailing
  address:

  	
   

  	
  701 East Byrd Street,
  15th Floor

  Richmond, Virginia 23219

  
	
   

  	
   

  	
   

  
	
  Time period for which
  Debtor has been using or operating under said names and organizational
  structure without change:

  	
   

  	
  2002

  
	
   

  	
   

  	
   

  
	
  Secured Party’s name:

  	
   

  	
  Wachovia Bank, National
  Association

  
	
   

  	
   

  	
   

  
	
  Secured Party’s organizational structure:

  Secured Party’s mailing address:

  	
   

  	
  a national banking
  association

  201 South Tryon Street, Suite 130

  PMB Box #4

  Charlotte, North Carolina 28202

  



 


B-8





















 


	
  Debtor’s name:

  	
   

  	
  SCTerryA, LLC

  
	
   

  	
   

  	
   

  
	
  Debtor’s organizational
  structure:

  	
   

  	
  limited liability
  company

  
	
   

  	
   

  	
   

  
	
  Debtor’s principal
  place of business:

  	
   

  	
  701 East Byrd Street,
  15th Floor

  Richmond, Virginia 23219

  
	
   

  	
   

  	
   

  
	
  Debtor’s mailing
  address:

  	
   

  	
  701 East Byrd Street,
  15th Floor

  Richmond, Virginia 23219

  
	
   

  	
   

  	
   

  
	
  Time period for which
  Debtor has been using or operating under said names and organizational
  structure without change:

  	
   

  	
  2002

  
	
   

  	
   

  	
   

  
	
  Secured Party’s name:

  	
   

  	
  Wachovia Bank, National
  Association

  
	
   

  	
   

  	
   

  
	
  Secured Party’s organizational structure:

  Secured Party’s mailing address:

  	
   

  	
  a national banking
  association

  201 South Tryon Street, Suite 130

  PMB Box #4

  Charlotte, North Carolina 28202

  



 


B-9





















 


	
  Debtor’s name:

  	
   

  	
  JRCongdon, JR.A, LLC

  
	
   

  	
   

  	
   

  
	
  Debtor’s organizational
  structure:

  	
   

  	
  limited liability
  company

  
	
   

  	
   

  	
   

  
	
  Debtor’s principal
  place of business:

  	
   

  	
  701 East Byrd Street,
  15th Floor

  Richmond, Virginia 23219

  
	
   

  	
   

  	
   

  
	
  Debtor’s mailing
  address:

  	
   

  	
  701 East Byrd Street,
  15th Floor

  Richmond, Virginia 23219

  
	
   

  	
   

  	
   

  
	
  Time period for which
  Debtor has been using or operating under said names and organizational
  structure without change:

  	
   

  	
  2002

  
	
   

  	
   

  	
   

  
	
  Secured Party’s name:

  	
   

  	
  Wachovia Bank, National
  Association

  
	
   

  	
   

  	
   

  
	
  Secured Party’s organizational structure:

  Secured Party’s mailing address:

  	
   

  	
  a national banking
  association

  201 South Tryon Street, Suite 130

  PMB Box #4

  Charlotte, North Carolina 28202

  



 


B-10





















 


	
  Debtor’s name:

  	
   

  	
  Jay Henry Town Center,
  LLC

  
	
   

  	
   

  	
   

  
	
  Debtor’s organizational
  structure:

  	
   

  	
  limited liability
  company

  
	
   

  	
   

  	
   

  
	
  Debtor’s principal
  place of business:

  	
   

  	
  1400 Battleground
  Avenue, Suite 217

  Greensboro, North Carolina 27401

  
	
   

  	
   

  	
   

  
	
  Debtor’s mailing
  address:

  	
   

  	
  1400 Battleground
  Avenue, Suite 217

  Greensboro, North Carolina 27401

  
	
   

  	
   

  	
   

  
	
  Time period for which
  Debtor has been using or operating under said names and organizational
  structure without change:

  	
   

  	
  2002

  
	
   

  	
   

  	
   

  
	
  Secured Party’s name:

  	
   

  	
  Wachovia Bank, National
  Association

  
	
   

  	
   

  	
   

  
	
  Secured Party’s organizational structure:

  Secured Party’s mailing address:

  	
   

  	
  a national banking
  association

  201 South Tryon Street, Suite 130

  PMB Box #4

  Charlotte, North Carolina 28202

  



 


B-11





















 


	
  Debtor’s name:

  	
   

  	
  Spence Henry Town
  Center, LLC

  
	
   

  	
   

  	
   

  
	
  Debtor’s organizational
  structure:

  	
   

  	
  limited liability
  company

  
	
   

  	
   

  	
   

  
	
  Debtor’s principal
  place of business:

  	
   

  	
  516 East Rosemary
  Street

  Chapel Hill, North Carolina 27514

  
	
   

  	
   

  	
   

  
	
  Debtor’s mailing
  address:

  	
   

  	
  516 East Rosemary
  Street

  Chapel Hill, North Carolina 27514

  
	
   

  	
   

  	
   

  
	
  Time period for which
  Debtor has been using or operating under said names and organizational
  structure without change:

  	
   

  	
  2002

  
	
   

  	
   

  	
   

  
	
  Secured Party’s name:

  	
   

  	
  Wachovia Bank, National
  Association

  
	
   

  	
   

  	
   

  
	
  Secured Party’s organizational structure:

  Secured Party’s mailing address:

  	
   

  	
  a national banking
  association

  201 South Tryon Street, Suite 130

  PMB Box #4

  Charlotte, North Carolina 28202

  



 


[End of Exhibit B]


 


B-12