EXHIBIT 4.8
Loan No.: 00-0000000 Tradewinds Apartments
Newport News, VA
RECEIPT AND CLOSING CERTIFICATE
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Dated: June 20, 2001
In connection with the extension by FIRST UNION NATIONAL BANK ("Lender"),
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to CRIT-VA III, INC., a Virginia corporation ("Borrower"), of that certain first
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priority loan in the original principal amount of Eleven Million One Hundred
Thousand and No/100 Dollars ($11,100,000.00) (the "Loan") pursuant to the terms
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of that certain Loan Application dated June 1, 2001, by and between Lender and
Cornerstone Realty Income Trust, Inc., a Virginia corporation (the
"Application") which Loan relates to and is secured by that certain real
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property situated in the City of Newport News, Commonwealth of Virginia, as is
more particularly described on Exhibit A attached hereto and incorporated herein
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by this reference, together with the buildings, structures and other
improvements now or hereafter located thereon (said real property, buildings,
structures and other improvements being hereinafter collectively referred to as
the "Property"), and by the limited guaranty of certain of Borrower's obligation
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by CORNERSTONE REALTY INCOME TRUST, INC., a Virginia corporation ("Guarantor")
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pursuant to an Indemnity and Guaranty Agreement and Environmental Indemnity
Agreement, each dated June 20, 2001, Borrower hereby agrees as follows:
1. Borrower hereby certifies to Lender as follows:
a. Borrower has received from Lender, without offset, counterclaim or
defense, the entire Eleven Million One Hundred Thousand and No/100 Dollars
($11,100,000.00) of loan proceeds under the Application, which loan proceeds
were directed by Xxxxxxxx to the Account of Union Commerce Title Company, LLC
(the "Disbursing Agent"), for application as set forth in the Disbursement
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Authorization signed by Xxxxxxxx, a copy of which is attached hereto as Exhibit
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B and incorporated herein by this reference.
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b. The undersigned is an officer of Xxxxxxxx, with full power and authority
to execute this Receipt and Closing Certificate on behalf of Borrower.
c. No Event of Default exists under the Loan Documents (as hereinafter
defined) executed by Borrower or the Guarantor and no event has occurred which
with the giving of notice or the passage of time, or both, could constitute an
Event of Default under the Loan Documents.
d. Since the date of the Application, no material portion of the Property
has been damaged and not repaired and restored to Lender's satisfaction or been
taken in condemnation or other similar proceedings, and no such proceeding is
pending. Since the date of
the Application, there has been no structural change in the physical condition
of any portion of the Property other than those changes actually discovered
during the course of Property inspections by Xxxxxx.
e. Neither the Borrower nor the Borrower's general partner, or Guarantor is
the subject of any bankruptcy, reorganization or insolvency proceeding.
f. Since the date of the Application, no materials containing more than 1%
asbestos, toxic waste or other hazardous substance has been placed on or
discovered on the Property, except those used in the ordinary course of the
business conducted on the Property and in compliance with applicable
environmental laws.
g. Since the date of the Application, no material adverse change has
occurred in the current net operating income for the Property.
2. Borrower agrees that, in connection with the closing and disbursement of
the Loan, from and after the date upon which the Loan Funds are placed on the
wire by Lender in accordance with the wire instructions of the Disbursing Agent
for Borrower and Lender, the full amount of the Loan thereupon shall be deemed
to be disbursed to Borrower and evidenced by the Promissory Note executed by
Borrower in evidence of the Loan (the "Note") and shall bear interest at the
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rate provided in the Note.
3. Xxxxxxxx agrees that in the event Xxxxxx decides to include the Loan as
an asset of a securitization, Borrower, prior to such securitization, will (i)
deliver any documents and information reasonably required by the rating agencies
engaged in connection with such securitization (collectively, the "Rating
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Agency") in connection with such a securitization provided, that, Borrower shall
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not be required to incur any material cost or expense, (ii) at Xxxxxx's request,
meet at the Property or at Borrower's offices with representatives of the Rating
Agency to discuss the business and operations of the Property, and (iii)
cooperate with any reasonable requests of the Rating Agency, provided that it is
at no cost to the Borrower or Lender. Without limiting the foregoing, in
connection with the sale, transfer and delivery of the Loan Documents to one or
more investors in the secondary mortgage market, Lender 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.
4. If Lender determines at any time to sell, transfer or assign the Note,
the mortgage, deed of trust or deed to secure debt securing the Note (the
"Security Instrument") and other Loan Documents (as defined in the Security
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Instrument), 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"), Lender may
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forward to each purchaser, transferee, assignee, servicer, participant,
investor, or their respective successors in such Participations and/or
Securities (collectively, the "Investors") or any Rating Agency rating such
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Securities, each prospective Investor and each of the foregoing's respective
counsel, all documents and information which Lender now has or may hereafter
acquire relating to the Debt
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(as defined in the Security Instrument), and to Borrower, any guarantor, any
indemnitor and the Property, which shall have been furnished by Borrower, any
guarantor and any indemnitor, as Lender determines necessary or desirable.
5. Xxxxxxxx and Guarantor each hereby certifies and represents to
Lender that neither Xxxxxxxx, Guarantor nor any director or executive officer of
Borrower, Guarantor or Xxxxxxxx's general partner has ever been convicted of a
felony nor is any criminal felony proceeding currently pending or to the best of
knowledge of undersigned threatened.
6. The certifications and agreements contained herein shall survive
the disbursement and closing of the Loan.
7. Lender shall be entitled to act in reliance upon the certifications
herein contained without further inquiry of any kind and notwithstanding
anything to the contrary contained in any other agreements or document.
8. Borrower hereby acknowledges and understands that it is anticipated
that after the closing of the Loan, the Loan may be sold by Xxxxxx to a third
party and, in connection therewith, all of the documents evidencing, securing,
guaranteeing and/or relating to the Loan Documents (as defined in the Security
Instrument) shall be assigned by Xxxxxx to said third party. Borrower hereby
agrees that, upon assignment of the Loan Documents by Xxxxxx to said third party
as aforesaid, Lender shall have no obligations or liabilities under the Loan
Documents, said third party shall be substituted as the lender under the Loan
Documents for all purposes and Borrower shall look solely to said third party
for the performance of any obligations of the Lender under the Loan Documents
except with respect to any liability incurred prior to such assignment.
9. Notwithstanding anything contained in this Receipt and Closing
Certificate to the contrary, the liability of Borrower and its officer,
directors, general partners, managers, members and principals for the
indebtedness secured hereby 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.
[THE BALANCE OF THIS PAGE WAS LEFT BLANK INTENTIONALLY]
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IN WITNESS WHEREOF, Xxxxxxxx and Guarantor have caused this Receipt
and Closing Certificate to be executed as of the day and year first above
written.
BORROWER:
CRIT-VA III, INC.,
a Virginia corporation
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Vice President
GUARANTOR:
CORNERSTONE REALTY INCOME TRUST,
INC., a Virginia corporation
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Executive Vice President
EXHIBIT A
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Legal Description
[OMITTED]
EXHIBIT B
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Disbursement Authorization
[OMITTED]
