REVOLVING LINE OF CREDIT AGREEMENT
THIS REVOLVING LINE OF CREDIT AGREEMENT (this
"Agreement") is made this ____ day of May, 1994, between RRC GA
ONE, INC., a Georgia Corporation ("Borrower"), and WACHOVIA BANK OF
GEORGIA, N.A., a national banking association chartered pursuant to
the laws of the United States of America ("Lender").
ARTICLE 1 - BACKGROUND
1.1 Background. Lender has agreed to extend a line of
credit (the "Line of Credit") in the aggregate principal amount of
$5,000,000 to Borrower under which separately documented, secured
(except as hereinafter provided in subsection 2.2.3) loans may be
made subject to and upon the conditions set forth in this
Agreement.
1.2 Statement of Agreement. For and in consideration of
the mutual covenants herein contained, the sum of $10.00 and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as indicated in
this Agreement.
ARTICLE 2 - AGREEMENTS
2.1 Line of Credit. Subject to the terms hereof, Lender
extends to Borrower a revolving line of credit in the maximum
amount of $5,000,000 inclusive of all outstanding principal and
interest (the "Line of Credit"), available from the date hereof
until April __, 1995, unless terminated earlier in accordance with
the terms of this Agreement. The aggregate amount of principal and
interest due with respect to all loans made hereunder (individually
called a "Loan" and collectively called "Loans") shall never exceed
the sum of $5,000,000. Borrower may submit a request for a
disbursement under the Line of Credit only in accordance with
Section 2.2 of this Agreement. Prior to an Event of Default, as
said term is hereinafter defined, or maturity of any of the Loans,
the principal balance of all indebtedness evidenced by any Loan
from time to time arising under the Line of Credit shall bear
interest at one-quarter of one percent (0.25%) plus the "Prime
Rate" (as hereinafter defined), as such rate may fluctuate from
time to time, simple interest. For purposes of the Line of Credit,
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the term "Prime Rate" shall mean the interest rate so denominated
and set by Lender from time to time as an interest rate basis for
borrowings. The Prime Rate is one of several interest rate bases
used by Lender. Lender lends at interest rates above and below the
Prime Rate. In the event that Lender shall abolish or abandon the
practice of establishing its Prime Rate, Lender shall designate a
comparable reference rate which shall be deemed to be the Prime
Rate hereunder. The rate of interest on every Loan hereunder shall
change each time the Prime Rate changes on the date of the change
in which the Prime Rate is effective. Interest shall be computed
on every Loan hereunder with respect to each day during the term of
the Loan by multiplying the outstanding principal balance
thereunder at the close of business on that day (or on the most
recent day on which Lender was open for business) by a daily
interest factor, which daily interest factor shall be calculated by
dividing the aforesaid interest rate per annum in effect on that
day by 360. Interest so computed shall accrue for each and every
day (365 days per year, 366 days per leap year) on which any
indebtedness under the Loan remains outstanding, including the day
on which funds are initially advanced regardless of the time of day
such advances are made, and including the day on which funds are
repaid unless repayment is credited prior to close of business.
Payments in federal funds immediately available to the place
designated for payment received by Lender prior to 2:00 p.m. local
time at said place of payment shall be credited prior to close of
business, while other payments may, at the option of Lender, not be
credited until immediately available to Lender in federal funds in
the place designated for payment prior to 2:00 p.m. local time at
said place of payment on a day on which Lender is open for
business. As indicated in the form of Real Estate Note attached
hereto as Exhibit D and incorporated herein by this reference (the
"Note"), Borrower may be entitled to a reduced rate of interest on
particular Loans upon the fulfillment of certain conditions
precedent and the acknowledgement in writing of the fulfillment of
those conditions precedent by Lender with respect to the applicable
Loan. Interest on each Loan shall be payable monthly during the
term of the Loan. Notwithstanding anything contained herein to the
contrary, all outstanding principal and unpaid interest for each
particular Loan shall be due in full on the earliest of (a) date of
closing of any additional financing for the "Project" (as defined
in Section 2.2 below) securing that particular Loan or any portion
thereof, (b) the date of closing of any sale of the Project or any
portion of said Project, or (c) twenty-four (24) months from the
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date of closing of that particular Loan. Notwithstanding the
foregoing, for each particular Loan, Borrower may request an
extension of the maturity date for that particular Loan in
accordance with the terms and conditions more particularly set
forth in that certain Construction Loan Agreement attached hereto
as Exhibit F and incorporated herein by this reference (the "Loan
Agreement"). Equal monthly principal payments of $2,000 shall be
due on each Loan commencing on the first anniversary date of the
closing of that particular Loan and extending to the maturity date
of that particular Loan subject to the right of Borrower to extend
the maturity of that particular Loan as provided in the Loan
Agreement. The payment and performance of all of Borrower's
obligations under the Line of Credit and all Loans shall be
unconditionally guaranteed by Regency Realty Corporation, a Florida
corporation ("Guarantor").
2.2 Disbursement of Loans.
2.2.1 Except as expressly provided to the contrary
in subsection 2.2.3 below, Borrower may request disbursement of
proceeds for a Loan only after approval by Lender of the proposed
Project, which approval shall be provided upon the satisfaction of
the conditions hereinafter described in subsections 2.2.1.1 through
2.2.1.9. Proceeds for a Project will only be disbursed in a
maximum amount equal to the lesser of: (a) 80% loan to appraised
value of the Project or (b) 80% loan to the actual costs of the
acquisition of the "Land" (as hereinafter defined) and construction
of the Project. "Project" shall mean the construction by Borrower
of a freestanding retail building located in Georgia, Tennessee,
Florida, Mississippi, South Carolina or Alabama together with
parking and other appurtenant facilities upon land owned by
Borrower (the "Land") and the acquisition and installation of
personal property to be used in connection with said retail
building. The Project must be leased in its entirety to Eckerd
Corporation, a Delaware corporation ("Eckerd"). Lender shall have
the right, subject to the terms herein stated, to approve any
proposed Project for financing under the Line of Credit. Lender's
review and approval shall be limited to and shall be granted upon
the satisfactory delivery by Borrower of the following items:
2.2.1.1 Borrower shall submit an agreement
fully-executed by Eckerd for the leasing of the Project which
agreement must be in form and substance satisfactory to Lender and
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must include a subordination, non-disturbance and attornment
agreement executed by Eckerd in favor of Lender in form and
substance satisfactory to Lender together with an estoppel
certificate executed by Eckerd in favor of Lender in form and
substance satisfactory to Lender. Without in any way limiting
Lender's foregoing right of approval, each proposed agreement for
leasing by Eckerd of the Project must provide for an acceptable
minimal rental, term and leaseable square footage of the Project.
2.2.1.2 Borrower shall submit a description of
the Land upon which the Project shall be located, the plans and
specifications for any and all improvements within the Project and
a breakdown of all costs associated with the acquisition,
construction and operation of the Project and the financing thereof
which shall be approved by Lender in its discretion as a condition
to closing of the Loan. The aforesaid approval of Lender shall
include the review by Xxxxxxxx & Company, Inc. ("XxxXxxxx"), a
Georgia corporation, of the cost estimates in the plans and
specifications prior to closing. Subsequent reviews shall be
conducted by Xxxxxxxx including inspection of the Project to verify
construction progress in accordance with the applicable Loan
Agreement prior to periodic disbursements of the Loan proceeds for
each Loan.
2.2.1.3 Borrower shall submit evidence in
writing that Eckerd has received final approval from its committee
for real estate for leasing of the Project (sometimes commonly
known within the real estate industry as the "Eckerd Committee Real
Estate Approval Letter").
2.2.1.4 Borrower shall submit a fully executed
purchase agreement and escrow agreement for each Project which has
been pre-sold by Borrower and which shall contain terms and
conditions satisfactory to Lender (which terms and conditions shall
include, without limitation, the purchase price, closing
requirements and the prospective purchaser) and which shall be
absolutely assigned to Lender in the "Loan Documents" (as
hereinafter defined). Borrower shall also submit evidence that
Eckerd has or will deliver all forms of estoppel certificates and
subordination, non-disturbance and attornment agreements required
by the prospective purchaser. If the purchase agreement provides
for a cash purchase price sufficient to pay all obligations of
Borrower to Lender under the Loan Documents for the applicable
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Project and provided that purchase agreement contains no unusual
warranty, indemnification or like provisions, then Lender shall
approve the purchase agreement.
2.2.1.5 Borrower shall submit evidence that
the Land on which the Project is to be constructed lies in a
district with an appropriate zoning designation to allow
construction and operation of the Project under applicable zoning
ordinances. This zoning verification shall include evidence to
demonstrate that all applicable materials relative to the
restrictions and requirements which relate to such zoning,
including lot size, building size and height, setbacks, parking,
use and other relevant matters for the Project have been met and
that the intended use of the Project is permitted as a matter of
right.
2.2.1.6 Borrower shall deliver a Phase I
Environmental Report evaluating the Land on which the Project is to
be constructed and setting forth findings and conclusions
satisfactory to Lender in its sole discretion. The aforesaid Phase
I Environmental Report, or other evidence to be delivered by
Borrower to Lender such as a survey of the Land, shall also
indicate that the Project when constructed will not be located in
an area having special flood hazards according to the flood hazard
boundary maps used by the United States Department of Housing and
Urban Development in connection with the National Flood Insurance
Program and shall indicate that the proposed construction of the
Project and the contemplated use of the Project are such that
provisions of the laws relating to the filling, dredging,
excavation or other usage of lands classified as wetlands or lands
which are subject to periodic flooding or have thereon standing or
moving bodies of water are not applicable to the construction of
the Project.
2.2.1.7 Borrower shall deliver an appraisal of
the Project satisfactory to Lender in its sole discretion as to
form and substance. Lender shall have the right to approve the
qualifications for any party who may deliver any such appraisal.
2.2.1.8 Borrower shall deliver a mortgagee's
title insurance commitment issued by a reputable national title
underwriter approved by Lender in the full amount of the proposed
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Loan for the Project upon terms and conditions satisfactory to
Lender in its sole discretion.
2.2.1.9 Borrower shall deliver all other pre-
closing requirements and loan closing documents as set forth on the
Loan Closing Checklist attached hereto as Exhibit A and
incorporated herein by this reference.
2.2.2 Upon submission of the above pre-closing
requirements, Lender shall direct its counsel to prepare loan
closing documents (the "Loan Documents") as set forth in the Loan
Closing Checklist and substantially in the form of those documents
attached hereto as Exhibits B through Exhibit Q and incorporated
herein by this reference. These Exhibits attached hereto are as
follows:
Exhibit A -- Loan Closing Checklist
Exhibit B -- Certificate of Plans and Specifications
Exhibit C -- Form of Surveyor's Certificate
Exhibit D -- Real Estate Note (the "Note")
Exhibit E -- Deed to Secure Debt, Assignment and
Security Agreement (the "Security Deed")
Exhibit F -- Construction Loan Agreement
Exhibit G -- UCC-1 Financing Statements (Sate where
the Project is located and Florida)
Exhibit H -- Borrower's Affidavit
Exhibit I -- Agreement regarding Environmental
Activity
Exhibit J -- Unconditional Guaranty of Payment and
Performance
Exhibit K -- Guaranty of Agreement Regarding
Environmental Activity
Exhibit L -- Loan Closing Statement
Exhibit M -- Subordination Non-Disturbance and
Attornment Agreement
Exhibit N -- Tenant Estoppel Certificate
Exhibit O -- Form of Opinion Letter for Counsel of
Borrower and Guarantor
Exhibit P -- Construction Consultant Agreement
Exhibit Q -- Consent to Assignment of Construction
Documents
Exhibit R -- Unsecured Note
Exhibit S -- Guaranty of Unsecured Note
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Each of the aforesaid documents shall be executed by Borrower,
Guarantor, Eckerd and/or the third party indicated therein and
shall shall be delivered to Lender for its execution.
2.2.3 Notwithstanding subsections 2.2.1 and 2.2.2
above, Borrower may request that Lender disburse up to $500,000
under the Line of Credit on a temporarily unsecured basis provided
said funds are either: (a) secured by an approved Project within
45 days of the applicable advance or (b) repaid in their entirety
with interest thereon as provided hereunder on or before the 45th
day after said advance. For any temporary advance under this
subsection, Borrower shall execute and deliver to Lender an
unsecured note in the form attached hereto as Exhibit R and shall
cause Guarantor to execute and deliver to Lender a guaranty of
unsecured note in the form attached hereto as Exhibit S.
2.3 Purpose. Proceeds of the Loans shall be used solely
for an approved Project (except that for disbursements made
pursuant to the terms of subsection 2.2.3 above the Project need
not be approved), and in no event shall any proceeds of any Loan be
used for personal, family or household purposes.
2.4 Final Approval and Limitations. The obligation of
Lender to make any Loan is conditioned upon prior approval of each
separate request for a Loan by Borrower and prior approval of the
proposed Project or to the extent applicable the temporarily
unsecured Loan as provided in subsection 2.2.2 above.
2.5 Condition of Closing Subsequent Loans. In addition
to the conditions set forth in Section 2.2 above, Lender shall have
no obligation to make any Loan if there shall exist any event of
default hereunder or under any Loan Documents for a previously
funded Loan. The obligations of Borrower under all Loan Documents
with regard to all Loans shall be cross-defaulted within the Loan
Documents such that a default under the Loan, not cured as provided
in the Loan Documents (if any cure period is provided), shall
constitute a default under all of the Loans. In addition, each
Project shall be cross-collateralized such that each Project serves
as collateral for all outstanding Loans, provided that upon the
full and final payment of a Note evidencing a Loan, the security
provided to collateralize that particular Note, including the
Security Deed for that particular Note, shall be cancelled and
terminated.
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2.6 Principal Payments. Upon the receipt of any
payments made by or on account of Borrower with respect to Loans
under the Line of Credit, Lender shall apply such payments as
provided in the Note evidencing such Loan.
2.7 Events of Default. Borrower shall be in default
hereunder and under all of the Loans if any one or more of the
following events occur (an "Event of Default"):
2.7.1 Failure to pay any installment of principal
or interest due under any Note evidencing a Loan as and when due
thereunder; or
2.7.2 Failure to observe and perform each and every
covenant, agreement and provision of this Agreement or any
documents evidencing, governing or securing any Loan including,
without limitation, the Loan Documents; or
2.7.3 Appointment of a receiver, trustee, custodian
or a liquidator of Borrower or Guarantor or any other property of
Borrower or Guarantor; or
2.7.4 Filing by Borrower or Guarantor of a
voluntary petition in bankruptcy seeking reorganization or
rearrangement or taking advantage of any applicable liquidation,
conservatorship, bankruptcy, moratorium, rearrangement, insolvency,
reorganization or similar laws affecting the rights or limits of
creditors generally, as in effect from time to time, or an answer
by Borrower or Guarantor admitting the material allegations of a
petition filed against Borrower or Guarantor in any bankruptcy,
reorganization, insolvency, conservatorship or similar proceeding
or an admission by Borrower or Guarantor in writing of non-
availability to pay any debts that become due; or
2.7.5 The making of Borrower or Guarantor of a
general assignment for the benefit of creditors; or
2.7.6 The entry of an order of relief by any court
of competent jurisdiction or the approval of a petition seeking
reorganization of Borrower or Guarantor or an arrangement of their
debts or the appointment of a receiver, trustee, conservator,
custodian or liquidator of Borrower or Guarantor or any property
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owned by Borrower or Guarantor, not dismissed within sixty (60)
days in the event of an involuntary action.
2.7.7 Notwithstanding anything herein or in any
Loan Documents to the contrary, Borrower shall receive the benefit
of the notice and cure periods (if any) set forth in Xxxxxxxxx X-0
of Exhibit "D" to the Security Deed prior to an "Event of Default"
and the exercise by Lender of its remedies hereunder with respect
thereto.
2.8 Remedies. If any Event of Default occurs hereunder,
Lender may require the entire principal and all interest accrued on
the Loans to be, and the same shall thereupon become due and
payable, without any presentment, demand, notice of intention to
accelerate the indebtedness evidenced by the Loans, protest or
other notice of any kind, all of which are hereby expressly waived.
If Borrower fails to pay when due, the principal and interest owing
under any Loan or any other charges owing under any of the Loan
Documents, Borrower will pay Lender such further amount as may be
sufficient to cover the cost and expenses of collection, including,
but not limited to, reasonable attorneys' fees of Lender's counsel
and expenses related thereto.
2.9 Financial Statements. Borrower shall keep and
maintain or shall cause to be kept and maintained, at Borrower's
cost and expense and in accordance with sound accounting practices
and principles consistently applied, proper and accurate books,
records and accounts reflecting all items of income and expense in
connection with the operation of each Project by Borrower and all
items of cost in connection with the construction of any
improvements which are now or hereafter a portion of the Project,
and Lender and any persons authorized by Lender shall have the
right at all reasonable times to inspect such books, records and
accounts and to make copies thereof. Borrower shall deliver to
Lender within thirty (30) days after notice by Lender unaudited
statements of the income, expenses and capital expenditures arising
out of the conduct of any business by Borrower at any Project, or
any part thereof or the construction of any improvements thereon,
for the twelve (12) month period prior to the giving of such notice
or for such other period as may be designated by Lender in such
notice, prepared in such detail and containing such supporting
documentation, including rent rolls and lease information, as
Lender may request. As soon as practicable, but in any event
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within thirty (30) days after the end of each of the first three
quarters of each calendar year (or applicable fiscal year) and
within ninety (90) days after the end of each calendar year (or
applicable fiscal year), Borrower shall furnish to Lender unaudited
general financial statements of Borrower and each Guarantor for
such quarter or such year, and prepared in such detail as Lender
may request. All unaudited statements referred to in this Section
2.9 shall be prepared in accordance with sound accounting practices
and principles consistently applied and shall be certified by
Borrower (or Guarantor, where appropriate), if an individual, or by
the chief financial officer or partner of Borrower (or Guarantor,
where appropriate). Borrower shall also promptly deliver to Lender
copies of any audited general financial statements prepared for
Borrower or any Guarantor and copies of any audited reports
available to Borrower relating to the conduct of any business at
any Project or the construction of any improvements thereon, if
any. Upon the occurrence of an Event of Default hereunder, or if
Lender reasonably suspects that inaccurate information has been
provided by Borrower under this Section 2.9, Borrower shall deliver
to Lender within thirty (30) days after demand by Lender,
statements of the income and expense for each Project or of the
cost of construction of any improvements thereon, for the period
designated by Lender, certified by a certified public accountant.
Borrower, upon ten (10) days' prior written notice, shall furnish
Lender a written statement, duly acknowledged, setting forth the
unpaid principal of, and interest on, the indebtedness evidenced by
the Loans and stating whether or not any known offsets or defenses
exist against such indebtedness, or any portion thereof and the
specific facts relating to any such offset or defense.
2.10 Term of Agreement. This Agreement and the Line of
Credit shall continue unless sooner terminated as provided herein
until May __, 1995. Upon any such termination, Borrower's
obligations and the powers and rights of Lender under this
Agreement and any of the Loan Documents shall continue in full
force and effect until all Loans have been paid in full and until
all of the liabilities and obligations of Borrower hereunder or
under any of the Loan Documents shall have been fully satisfied.
2.11 Costs and Expenses. Borrower shall pay all costs
and expenses incurred in connection with the preparation for and
the closing of the Line of Credit and each particular Loan, whether
the Loan is closed or not, including appraisal fees, environmental
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audit fees, inspection fees (including fees of Xxxxxxxx),
surveyors' fees, legal fees (including fees of counsel for Lender),
intangibles taxes, note taxes, mortgage taxes, transfer taxes, all
recording costs, all license and permit fees, and all title and
other insurance premiums. Lender shall not bear any out-of-pocket
costs or expenses whatsoever in connection with the Line of Credit
or any Loan.
2.12 Discount or Origination Fee. Borrower shall pay to
Lender a discount or loan origination fee in the amount of one
percent (1%) of the principal amount of each Loan (excluding any
disbursement made pursuant to the terms of subsection 2.2.3,
provided that such disbursement is converted to a Loan secured by
a Project), which shall be fully earned, non-refundable and due and
payable at the time of closing of that particular Loan. In the
event Borrower shall elect to extend the maturity of that
particular Loan as provided in the Loan Agreement, an additional
one-half of one percent (0.5%) loan fee shall be paid in accordance
with the stipulations set forth in the applicable Loan Agreement
with regard to the extension of the maturity of that particular
Loan.
ARTICLE 3 - GENERAL CONDITIONS
3.1 No Waiver; Remedies Cumulative. No delay or
omission by Lender to exercise any right, power or remedy accruing
upon any Event of Default shall exhaust or impair any such right,
power or remedy or shall be construed to be a waiver of any such
default, or acquiescence therein, and every right, power and remedy
given by this Agreement or any of the Loan Documents to Lender may
be exercised from time to time and as often as may be deemed
expedient by Lender. No consent or waiver, expressed or implied,
by Lender to or of any default shall be deemed or construed to be
a consent or waiver to or of any other default. No delay,
indulgence, departure, act or omission by Lender shall release,
discharge, modify, change or otherwise affect the original
liability under this Agreement or any of the Loan Documents or any
other obligation of Borrower or any subsequent purchaser of a
Project or any part thereof, or any maker, surety or Guarantor, or
preclude Lender from exercising any right, privilege or power
granted herein or in any of the Loan Documents. Lender may at any
time, without notice to or further consent from Borrower, surrender
or substitute any property or other security of any kind or nature
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whatsoever securing the indebtedness evidenced by the Loans or
release any Guarantor, and no such action will release Borrower's
obligations hereunder or alter the effect hereof. No right, power
or remedy conferred upon or reserved to Lender hereunder is
intended to be exclusive of any other right, power or remedy, but
each and every such right, power and remedy shall be cumulative and
concurrent and shall be in addition to any other right, power and
remedy given hereunder or under the other Loan Documents or now or
hereafter existing at law, in equity or by statute.
3.2 Survival of Certain Agreements. Notwithstanding the
repayment of the indebtedness evidenced by the Loans and the
cancellation or transfer of the Loan Documents, or any foreclosure
of, or sale under power contained in, any of the Loan Documents, or
the acquisition by Lender of title to any Project in lieu of
foreclosure, or any other realization upon collateral securing any
indebtedness evidenced by the Loans, all agreements of Borrower
contained herein or in any of the other Loan Documents to pay the
costs and expenses of Lender in connection with the Loans
contemplated by the Loan Documents and all agreements of Borrower
contained herein or in any of the other Loan Documents to indemnify
and/or hold harmless Lender shall continue in full force and effect
so long as there exists any possibility of expense or liability on
the part of Lender.
3.3 No Obligation to Third Parties. The Loans are and
will be made solely for the benefit of Lender. No tenant nor any
party involved with the construction of any Project nor any other
party whatsoever shall have standing to bring any action against
Lender as the result of this Agreement or the Loan Documents, or to
assume that Lender will exercise any remedies provided herein, and
no party other than Lender shall be deemed to be a beneficiary of
any provision of the Loan Documents, any and all of which may be
freely waived in whole or in part by Lender in its discretion at
any time. Nothing contained in this Agreement or the Loan
Documents shall be deemed to impose upon Lender any liability for
the performance of any obligation of Borrower.
3.4 Miscellaneous. This Agreement shall inure to the
benefit of and be binding upon Borrower and Lender and their
respective heirs, executors, legal representatives, successors,
successors-in-title and assigns, subject to all restrictions on
transfer herein or in the Loan Documents. Neither this Agreement
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nor the proceeds of any Loans contemplated by the Loan Documents
may be assigned by Borrower without the prior consent of Lender
which may be given or withheld at the discretion of Lender.
Notwithstanding the foregoing, Borrower may assign its rights under
this Agreement to an affiliate, subsidiary or corporate parent of
Borrower so long as: (a) there is no Event of Default under this
Agreement or any of the Loan Documents, (b) Guarantor and Borrower
remain fully obligated for performance of all obligations under
this Agreement and the Loan Documents, and (c) Borrower provides
such financial and business information concerning the proposed
assignee as Lender may reasonably request. This Agreement may be
changed, waived, discharged or terminated only by an instrument in
writing signed by the party against whom enforcement of such
change, waiver, discharge or termination is sought. This Agreement
contains the entire agreement between Borrower and Lender relating
to the Line of Credit and supersede entirely any and all prior
written or oral agreements with respect thereto; and Borrower and
Lender hereto acknowledge and agree that there are no
contemporaneous oral agreements with respect to the subject matter
hereof. Nothing contained in this Agreement shall be construed to
create an agency, partnership or joint venture between Borrower and
Lender. All personal pronouns used in this Agreement whether used
in the masculine, feminine or neuter gender, shall include all
other genders; the singular shall include the plural, and vice
versa. Titles of articles and sections in this Agreement are for
convenience only and in no way define, limit, amplify or describe
the scope or intent of any provisions thereof. If more than one
person or entity constitutes, collectively, Borrower or Guarantor,
all of the provisions of this Agreement referring to Borrower or
Guarantor shall be construed to refer to each such person or entity
individually as well as collectively. When anything is described
or referred to in this Agreement in general terms and one or more
examples or components of what has been described or referred to
generally is associated with that description (whether or not
following the word "including"), the examples or components shall
be deemed illustrative only and shall not be construed as limiting
the generality of the description or reference in any way.
Wherever in this Agreement the approval or consent of Lender is
required or permitted, or wherever a requirement of Lender or the
standard of acceptability or satisfaction of Lender must be
determined, such approval, consent or determination of Lender shall
not be unreasonably withheld or delayed; provided, however, that
wherever it is indicated that such approval, consent or
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determination is to be given or made at the option or in the
discretion or judgment of Lender, then Lender may grant or withhold
such approval or consent or make such determination without
restriction in its sole and absolute discretion. If any provisions
of this Agreement or the application thereof to any person or
circumstance shall be invalid or unenforceable to any extent, the
application of such provisions to other persons or circumstances
shall not be affected thereby and shall be enforced to the greatest
extent permitted by law. Time is of the essence with respect to
each and every covenant, agreement and obligation of Borrower under
this Agreement. All exhibits referred to in this Agreement are by
such reference incorporated into this Agreement as if fully set
forth therein. The parties acknowledge and agree that they have
been represented by counsel and that each of the parties has
participated in the drafting of this Agreement. Accordingly, it is
the intention and agreement of the parties that the language, terms
and conditions of this Agreement are not to be construed in any way
against or in favor of any party hereto by reason of the
responsibilities in connection with the preparation of this
Agreement.
3.5 Communications. Unless and except as otherwise
specifically provided herein, any and all notices, elections,
approvals, consents, demands, requests and responses thereto
("Communications") permitted or required to be given under this
Agreement shall be in writing, signed by or on behalf of the party
giving the same, and shall be deemed to have been properly given
and shall be effective upon the earlier of receipt thereof or
deposit thereof in the United States mail, postage prepaid,
certified with return receipt requested, to the other party at the
address of such other party set forth hereinbelow or at such other
address within the continental United States as such other party
may designate by notice specifically designated as a notice of
change of address and given in accordance herewith; provided,
however, that the time period in which a response to any
Communication must be given shall commence on the date of receipt
thereof; and provided further that no notice of change of address
shall be effective with respect to Communications sent prior to the
time of receipt thereof. Receipt of Communications under this
Agreement shall occur upon actual delivery (whether by mail,
telecopy transmission, messenger, courier service, or otherwise) to
any person who is Borrower or an officer or general partner of
Borrower at any location where such person may be found, or to an
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officer, partner, agent or employee of Borrower or Lender, at the
address of such party set forth hereinbelow, subject to change as
provided hereinabove. An attempted delivery in accordance with the
foregoing, acceptance of which is refused or rejected, shall be
deemed to be and shall constitute receipt; and an attempted
delivery in accordance with the foregoing by mail, messenger, or
courier service (whichever is chosen by the sender) which is not
completed because of changed address of which no notice was
received by the sender in accordance with this provision prior to
the sending of the Communication shall also be deemed to be and
constitute receipt. Any Communication, if given to Lender, must be
addressed as follows, subject to change as provided hereinabove:
Wachovia Bank of Georgia, N.A.
Real Estate Finance Division
30th Floor, Mail Code 1810
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
and, if given to Borrower, must be addressed as follows, subject to
change as provided hereinabove:
RRC GA One, Inc.
Xxxxx 000, 000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
3.6 Applicable Law. This Agreement shall be
interpreted, construed and enforced according to the laws of the
State of Georgia.
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IN WITNESS WHEREOF, Borrower and Lender have executed
this Agreement under seal, as of the day and year first above
written.
As to Borrower, signed BORROWER:
sealed and delivered in
the presence of: RRC GA ONE, INC.,
a Georgia corporation
_________________________ By:___________________________
Unofficial Witness
Its:___________________
Attest:___________________
_________________________
Notary Public Its:______________________
Commission Expiration Date: [CORPORATE SEAL]
(NOTARIAL SEAL)
LENDER:
As to Lender, signed WACHOVIA BANK OF GEORGIA, N.A.
sealed and delivered in
the presence of:
_________________________ By: _______________________________
Unofficial Witness Xxxxx X. Xxxxxxx
Vice President
_________________________ (BANK SEAL)
Notary Public
Commission Expiration Date:
(NOTARIAL SEAL)
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