EXHIBIT 10.64
CREDIT LINE DEED OF TRUST AND SECURITY AGREEMENT
TO SOUTHTRUST BANK N.A.
RELATING TO THE ALSTOM POWER RICHMOND BUILDING
CREDIT LINE DEED OF TRUST AND SECURITY AGREEMENT
Xxxxx REIT, LLC - VA I
(Grantor for indexing purposes)
to
Xxxxx X. Xxxxxxxxx, as Trustee
For the Benefit of
SouthTrust Bank, National Association
(Grantee for indexing purposes)
Dated: December 29/th/, 1999
This instrument was prepared by
the attorney described below in
consultation with counsel in the
State in which the Mortgaged Property
is located and, when recorded, the recorded
counterparts should be returned to:
Xxxx & Xxxxxx LLP
One Georgia Center - Suite 1200
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Virginia Counsel:
----------------
Xxxxxx X. Xxxxx, XX
Xxxxxxx & Xxxxxx LLP
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxx 00000
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THIS IS A CREDIT LINE DEED OF TRUST. THE MAXIMUM AGGREGATE PRINCIPAL AMOUNT
THAT MAY BE SECURED HEREBY SHALL NOT EXCEED $9,280,000.00. THE FINAL PAYMENT
DATE OF THE INDEBTEDNESS SECURED HEREBY IS JULY 10, 2002.
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Deed of Trust and Security Agreement - Page 1
Xxxxx REIT LLC - VAI (ABB Office Building)
Credit Line Deed Of Trust and Security Agreement
THIS CREDIT LINE DEED OF TRUST AND SECURITY AGREEMENT (this "Security
Instrument") is entered into on this 29/th/ day of December, 1999, by and
between XXXXX REIT, LLC - VA I, a Georgia limited liability company, as grantor
and debtor, whose address is c/x Xxxxx Real Estate Funds, 0000 Xxxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000 (hereinafter referred to as "Borrower" and as
"Grantor" for indexing purposes), in favor of XXXXX X. XXXXXXXXX, a resident of
the Commonwealth of Virginia, whose address is c/o SouthTrust Bank, National
Association, 000 Xxxx Xxxx Xxxxxx, Xxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx
00000 (hereinafter referred to as "Trustee," said term referring always to the
named Trustee and his successors in trust), for the use and benefit of
SOUTHTRUST BANK, NATIONAL ASSOCIATION, a national banking association ("Grantee"
for indexing purposes), whose address is P.O. Box 2554, Attention: Commercial
Real Estate, Xxxxxxxxxx, Xxxxxxx 00000 (hereinafter referred to as "Lender,"
said term referring always to the lawful owner and holder of the Secured
Obligations (as herein defined)).
W i t n e s s e t h:
Borrower and Lender have entered into a Loan Agreement of even date
herewith (as the same might hereafter be extended, renewed, modified,
consolidated, substituted, replaced, or restated pursuant to the applicable
provisions thereof, the "Loan Agreement") pursuant to which Lender has agreed to
make a loan to Borrower in the principal sum of Nine Million Two Hundred Eighty
Thousand and No/100 Dollars ($9,280,000.00) in lawful money of the United States
of America (the "Loan"), which Loan will be evidenced by a Promissory Note of
even date herewith payable by Borrower to the order of Lender in said principal
amount (as the same might hereafter be extended, renewed, modified,
consolidated, substituted, replaced, restated, or increased, the "Note"), with
interest thereon from the date of the Note at the rates set forth in the Note,
such principal and interest to be paid in installments as provided in the Loan
Agreement and the Note, with the final installment being due and payable on July
10, 2002.
As a condition precedent to making the Loan, Lender has required that
Borrower execute and deliver this Security Instrument as security for the Loan
and the other Secured Obligations (as hereinafter defined).
Article I - Grants of Security
NOW THEREFORE, for and in consideration of the foregoing and other good and
valuable consideration, and the sum of One Hundred and No/100 Dollars ($100.00)
in hand paid, and the other considerations hereinafter mentioned, the receipt
and sufficiency whereof are hereby acknowledged, Borrower does hereby
irrevocably grant, bargain, sell, pledge, assign, warrant, transfer, and convey
to Trustee and Trustee's successors and assigns, the following property,
appurtenances, rights, interests, and Lender in, the following property,
appurtenances, rights, interests, and estates of Borrower, whether now owned or
hereafter acquired by Borrower (all such property, appurtenances, rights,
interests, and estates being herein referred to collectively as the "Mortgaged
Property"):
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Xxxxx REIT, LLC - VA I (ABB Office Building)
(a) All tracts, pieces, or parcels of land located in Chesterfield
County, Virginia more particularly described in Exhibit A attached hereto
and by this reference made a part hereof (the "Land");
(b) All buildings, structures, fixtures, additions, enlargements,
extensions, modifications, repairs, replacements, and improvements of every
nature whatsoever now or hereafter erected or located on the Land (the
"Improvements");
(c) All easements, rights-of-way, strips and gores of land, vaults,
streets, ways, alleys, passages, sewer rights, waters, water courses, water
rights and powers, air rights, and development rights, minerals, flowers,
shrubs, crops, trees, timber, and other emblements now or hereafter located
on, under, or above the Land or any part or parcel thereof, and all ground
leases, estates, rights, titles, interests, privileges, liberties,
tenements, hereditaments, appurtenances, reversions, and remainders
whatsoever in any way belonging, relating, or appertaining to the Land and
the Improvements or any part thereof, or which hereafter shall in any way
belong, relate, or be appurtenant thereto, and all land lying in the bed of
any street, road, or avenue, opened or proposed, in front of or adjoining
the Land, to the center line thereof, and all the estates, rights, titles,
interests, dower and rights of dower, curtesy and rights of curtesy,
property, possession, claim, and demand whatsoever, both at law and in
equity, of Borrower of, in, and to the Land and the Improvements and every
part and parcel thereof, with the appurtenances thereto;
(d) All machinery, equipment, fixtures, appliances, and personal
property of every kind and nature whatsoever now or hereafter owned by
Borrower, or in which Borrower has or shall have an interest, now or
hereafter located in, on, or about the Land and the Improvements, or the
appurtenances thereof, or used or intended to be used with or in connection
with the present or future operation, occupancy, or enjoyment of the Land
and the Improvements (including, without limitation, appliances, machinery,
equipment, signs, artwork, office furnishings and equipment, all
partitions, screens, awnings, shades, blinds, floor coverings, hall and
lobby equipment, heating, lighting, plumbing, ventilating, refrigerating,
incinerating, elevators, escalators, air conditioning and communication
plants or systems with appurtenant fixtures, vacuum cleaning systems, call
or beeper systems, security systems, sprinkler systems and other fire
prevention and extinguishing apparatus and materials; all equipment,
manual, mechanical or motorized, for the construction, maintenance, repair
and cleaning of, parking areas, walks, underground ways, truck ways,
driveways, common areas, roadways, highways and streets), and all building
equipment, materials, and supplies of any nature whatsoever now or
hereafter located in, on, or about the Land and the Improvements, or the
appurtenances thereof, and whether in storage or otherwise, or used or
intended to be used with or in connection with the present or future
operation, occupancy, or enjoyment of the Land and the Improvements
(hereinafter collectively referred to as the "Equipment"), including the
proceeds of any sale or transfer of the foregoing, and the right, title and
interest of Borrower in and to any of the Equipment which may be subject to
any security interests, as defined in the Uniform Commercial Code, as
adopted and enacted by the State or States where any of the Mortgaged
Property is located (the "UCC") superior in priority to the lien of this
Security Instrument. In connection with Equipment which is leased to
Borrower or which is subject to a lien or security interest which is
superior to the lien of this Security Instrument, this Security
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Instrument shall also cover all right, title and interest of Borrower in
and to all deposits, and the benefit of all payments now or hereafter made
with respect to such Equipment
(e) All leases, subleases, subtenancies, licenses, occupancy
agreements, and concessions relating to the use and enjoyment of all or any
part of the Land or the Improvements heretofore or hereafter entered into
whether before or after the filing by or against Borrower of any petition
for relief under the United States Bankruptcy Code, 11 U.S.C. (S) 101 et
seq. (the "Bankruptcy Code"), as the same might be amended from time to
time (the "Leases"), and any and all guaranties and other agreements
relating to or made in connection with any of the Leases, and all right,
title, and interest of Borrower, its successors and assigns therein and
thereunder to secure the performance by the lessees of their obligations
thereunder and all rents, additional rents, revenues, issues, and profits
(including oil and gas or other mineral royalties and bonuses) from the
Land and the Improvements, whether paid or accruing before or after the
filing by or against Borrower of any petition for relief under the
Bankruptcy Code (the "Rents"), and all proceeds from the sale or other
disposition of the Leases and the right to receive and apply the Rents to
the payment of the Secured Obligations, and all of Borrower's claims and
rights to damages and any other remedies in connection with or arising from
the rejection of any Lease by the lessee or any trustee, custodian or
receiver pursuant to the Bankruptcy Code in the event that there shall be
filed by or against the lessee any petition, action or proceeding under the
Bankruptcy Code or under any other similar federal or state law now or
hereafter in effect;
(f) All proceeds, including all claims to and demands for them, of
the voluntary or involuntary conversion of any of the Land, the
Improvements, or any of the other Mortgaged Property into cash or
liquidated claims, including proceeds of all present and future fire,
hazard, or casualty insurance policies and all condemnation awards or
payments now or hereafter to be made by any public body or decree by any
court of competent jurisdiction for any taking or in connection with any
condemnation or eminent domain proceeding, and all causes of action and
their proceeds for any damage or injury to the Land, Improvements, or any
of the other Mortgaged Property or any part of them, or breach of warranty
in connection with the construction of the Improvements, including causes
of action arising in tort, contract, fraud, or concealment of a material
fact;
(g) All rights to the payment of money, accounts, accounts
receivable, reserves, deferred payments, refunds, cost savings, payments
and deposits, whether now or hereafter to be received from third parties
(including all xxxxxxx money deposits) or deposited by Borrower with Lender
or third parties (including all utility deposits, accounts for the deposit,
collection, and/or disbursement of Rents, and all reserve accounts provided
for under any documentation entered into or delivered by Borrower in
connection with the Loan), chattel paper, instruments, documents, notes,
drafts and letters of credit, which arise from or relate to construction on
the Land, to any business now or hereafter to be conducted on the Land, or
to the Land and the Improvements generally;
(h) All franchises, trade names, trademarks, symbols, goodwill,
service marks, trade styles, books, records, development and use rights,
architectural and
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engineering plans, specifications and drawings, and as-built drawings,
contracts, licenses, approvals, applications, consents, subcontracts,
service contracts, management contracts, permits, and other agreements of
any nature whatsoever now or hereafter obtained or entered into by
Borrower, or any managing agent of the Mortgaged Property on behalf of
Borrower, with respect to the use, occupation, development, construction,
management, name, and/or operation of the Mortgaged Property or any part
thereof or the activities conducted thereon or therein, or otherwise
pertaining to the Mortgaged Property or any part thereof, including,
without limitation, (i) all rights of Borrower to receive moneys due and to
become due to it under or in connection with any of the foregoing, (ii) all
rights of Borrower to damages arising out of or for a breach or default in
respect thereof, and (iii) all rights of Borrower to perform and to
exercise all remedies thereunder;
(i) all rights that Borrower now has or may hereafter acquire, to be
indemnified and/or held harmless from any liability, loss, damage, costs or
expense (including, without limitation, attorneys' fees and disbursements)
relating to the Mortgaged Property or any part thereof;
(j) All books and records pertaining to any and all of the property
described above, including computer-readable memory and any computer
hardware or software necessary to access and process such memory; and
(k) All proceeds of, additions and accretions to, substitutions and
replacements for, and any changes in any of the property described above.
TO HAVE AND TO HOLD the Mortgaged Property and all parts, rights, members
and appurtenances thereof, to the use, benefit and behoof of Lender, its
successors and assigns, in fee simple forever.
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Article II - Obligations Secured
This Security Instrument and the grants, assignments, and transfers made in
Article I hereof are given for the purpose of securing the following obligations
in any order of priority as Lender may determine in its sole discretion (the
"Secured Obligations"):
(a) Payment of all indebtedness evidenced by the Note, including
principal, interest, default interest, late charges, prepayment
consideration, and other sums, as provided in the Note, and the performance
of all other obligations set forth in the Note;
(b) The full and prompt payment and performance of all of the
provisions, agreements, covenants and obligations herein contained and
contained in the Loan Agreement or any of the other Loan Documents (as
defined in the Loan Agreement) and the payment of all other sums therein
covenanted to be paid;
(c) Any and all additional advances made by Lender pursuant to this
Security Instrument or the other Loan Documents to protect or preserve the
Mortgaged Property or the lien or security interest created hereby on the
Mortgaged Property, or for taxes, assessments or insurance premiums as
hereinafter provided or for performance of any of Borrower'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
Borrower remains the owner of the Mortgaged Property at the time of such
advances); and
(d) Payment and performance of all modifications, amendments,
extensions, consolidations, and renewals, however evidenced, of any of the
obligations described in (a) through (c) above.
Article III - Covenants
3.01. Payment of Secured Obligations. Borrower will perform, observe and
comply with the provisions hereof and of each of the other Loan Documents and
duly and punctually will pay to Lender the sum of money expressed in the Note
with interest thereon and all other sums required to be paid by the Borrower
pursuant to the provisions of this Security Instrument, all without any
deduction or credit for taxes or other similar charges paid by the Borrower.
3.02. Incorporation by Reference. All the covenants, conditions, and
agreements contained in the Loan Agreement, the Note, and all of the other Loan
Documents are hereby made a part of this Security Instrument to the same extent
and with the same force as if fully set forth herein.
3.03. Warranty of Title. Borrower is lawfully seized of an indefeasible
estate in fee simple in the Mortgaged Property hereby conveyed and has good and
absolute title to all other Mortgaged Property in which a security interest is
herein granted, and Borrower has good right, full power, and lawful authority to
sell, convey, and grant a security interest in the same in the manner and form
aforesaid. Except for the Permitted Encumbrances described in the Loan
Agreement, the Mortgaged Property is free and clear of all liens, charges, and
encumbrances whatsoever, including
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conditional sales contracts, chattel mortgages, security agreements, financing
statements, and anything of a similar nature, and that Borrower shall and will
warrant and forever defend the title thereto unto the Lender, its successors and
assigns, against the lawful claims of all persons whomsoever. Borrower shall not
acquire any portion of the Mortgaged Property subject to any security interest,
conditional sales contract, title retention arrangement, or other charge or lien
taking precedence over the security interest and lien of this Security
Instrument.
3.04. Taxes, Utilities, and Other Charges.
(a) Borrower will pay or cause to be paid, on or before the due date
thereof, all taxes, assessments, levies, license fees, permit fees, dues,
charges, fines, and impositions (in each case whether general or special,
ordinary or extraordinary, or foreseen or unforeseen) of every character
whatsoever (including all penalties and interest thereon) now or hereafter
levied, assessed, confirmed, or imposed on, or in respect of, or which might
constitute a lien upon the Mortgaged Property, or any part thereof, or any
estate, right, or interest therein, or upon the rents, issues, income, or
profits thereof, and shall submit to Lender such evidence of the due and
punctual payment of all such taxes, assessments, and other fees and charges as
Lender might require. Borrower shall have the right, before any such tax,
assessment, fee, or charges become delinquent, to contest or object to the
amount or validity of any such tax, assessment, fee, or charge by appropriate
legal proceedings, provided that said right shall not be deemed or construed in
any way as relieving, modifying, or extending Borrower's covenant to pay any
such tax, assessment, fee, or charge at the time and in the manner provided
herein unless (i) Borrower has given prior written notice to Lender of
Borrower's intent to so contest or object, (ii) Borrower shall demonstrate to
Lender's satisfaction that the legal proceedings shall conclusively operate to
prevent the sale of the Mortgaged Property, or any part thereof, to satisfy such
tax, assessment, fee, or charge prior to final determination of such
proceedings, (iii) Borrower shall furnish a good and sufficient bond or surety
as requested by and satisfactory to Lender, and (iv) Borrower shall have
provided a good and sufficient undertaking as might be required or permitted by
law to accomplish a stay of such proceedings.
(b) Borrower will pay or cause to be paid, on or before the due date
thereof, (i) all premiums on policies of insurance covering, affecting, or
relating to the Mortgaged Property, as required pursuant to the Loan Agreement,
(ii) all ground rentals, other lease rentals, and other sums, if any, owing by
Borrower and becoming due under any lease or rental contract affecting the
Mortgaged Property, and (iii) all utility charges that are incurred by Borrower
for the benefit of the Mortgaged Property, or which might become a charge or
lien against the Mortgaged Property for gas, electricity, water, sewer services,
and the like furnished to the Mortgaged Property, and all other public or
private assessments or charges of a similar nature affecting the Mortgaged
Property or any portion thereof, whether or not the nonpayment of same might
result in a lien thereon. Borrower shall submit to Lender such evidence of the
due and punctual payment of all such premiums, rentals, and other sums as Lender
might require.
(c) Borrower shall not suffer any mechanic's, materialman's, laborer's,
statutory, or other lien (except as expressly permitted by the Loan Agreement)
to be created or remain outstanding against the Mortgaged Property; provided
that Borrower may contest any such lien in good faith by appropriate legal
proceedings provided the lien is bonded off and removed as an encumbrance upon
the Mortgaged Property. Lender has not consented and will not consent to the
performance of any work or the furnishing of any materials that might be deemed
to create a lien or liens against the Mortgaged Property that is superior to the
lien and security interest hereof.
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(d) Borrower will pay, on or before the due date thereof, all taxes,
assessments, charges, expenses, costs, and fees that might now or hereafter be
levied upon, or assessed or charged against, or incurred in connection with, the
Note, the Secured Obligations, this Security Instrument, or any of the other
Loan Documents, including, without limitation, any sales or use tax that might
be imposed on Lender with respect to the Secured Obligations (but excluding
taxes calculated solely based upon the income derived by Lender from the Secured
Obligations). In the event of the passage of any state, federal, municipal, or
other governmental law, order, rule, or regulation, subsequent to the date
hereof, in any manner changing or modifying the laws now in force governing the
taxation of deeds to secure debt or security agreements, or debts secured
thereby, or in the manner of collecting such taxes, so as to adversely affect
Lender (excluding any tax upon Lender's income derived from the Secured
Obligations), Borrower will pay any such tax on or before the due date thereof.
If Borrower fails to make such prompt payment or if, in the opinion of Lender,
any such state, federal, municipal, or other governmental law, order, rule, or
regulation prohibits Borrower from making such payment or would penalize
Borrower if Borrower makes such payment, or if, in the opinion of Lender, the
making of such payment might result in the imposition of interest beyond the
maximum amount permitted by applicable law, then the entire Secured Obligations
will, at the option of Lender, become immediately due and payable.
3.05. Insurance.
(a) Borrower shall cause the Mortgaged Property at all times during the
entire term of this Security Instrument to be insured for the mutual benefit of
Borrower and Lender against loss or damage by fire and against loss or damage by
other risks and hazards covered by a standard "all risk" insurance policy. The
amount of such insurance shall be not less than one hundred percent (100%) of
the full replacement cost of the Improvements, furniture, furnishings, fixtures,
equipment and other items (whether personalty or fixtures) included in the
Mortgaged Property and owned by Borrower from time to time, without reduction
for depreciation, but excluding footings and foundations and parts of the
Mortgaged Property to the extent not insurable. The determination of the
replacement cost amount shall be adjusted annually to comply with the
requirements of the insurer issuing such coverage or, at Lender's election, by
reference to such indices, appraisals or information as Lender determines in its
reasonable discretion. 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, and means, with
respect to such furniture, furnishings, fixtures, equipment and other items, the
cost of replacing the same, in each case, with inflation guard coverage to
reflect the effect of inflation. Each such policy or policies, if so required,
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 Lender's reasonable approval.
The premiums for the policies of insurance carried in accordance with this
Section shall be paid annually in advance.
(b) Borrower, at its sole cost and expense, for the mutual benefit of
Borrower and Lender, shall also obtain and maintain or cause to be obtained and
maintained during the entire term of this Security Instrument the following
insurance policies:
(i) Flood insurance if any part of the Improvements is located in an
area identified by the Federal Emergency Management Agency as an area
having special flood hazards and in which flood insurance has been made
available under the National Flood Insurance Act of 1968 (and any successor
act thereto) in an amount
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equal to at least the then full replacement value of the Mortgaged Property
or the amount of flood insurance available under said Act, whichever is
less;
(ii) Comprehensive general liability insurance, including broad form
property damage, blanket contractual and personal injuries (including death
resulting therefrom) coverages on an "occurrence basis" with minimum
combined single limit coverage of not less than $5,000,000.00;
(iii) Insurance covering the major components of the central heating,
air conditioning and ventilating systems, boilers, other pressure vessels,
sprinkler systems, high pressure piping and machinery, elevators and
escalators, if any, and other similar equipment installed in the
Improvements, in an amount equal to one hundred percent (100%) of the full
replacement cost of the Improvements which policies shall insure against
physical damage to and loss of occupancy and use of the Improvements
arising out of an accident or breakdown covered thereunder;
(iv) During the period of any construction of the Improvements or
renovation or alteration of the Improvements, a so-called "Builder's All-
Risk Completed Value" or "Course of Construction" insurance policy in non-
reporting form for any Improvements under construction, renovation or
alteration in an amount reasonably approved by Lender and Worker's
Compensation Insurance covering all persons engaged in such construction,
renovation or alteration;
(v) Loss of rents or loss of business income insurance in amounts
sufficient to compensate Borrower for all Rents during a period of not less
than one (1) year in which the Improvements may be damaged or destroyed;
and
(vi) Such other insurance as may from time to time be reasonably and
customarily required by Lender in order to protect its interests in the
Mortgaged Property.
(c) All insurance policies required pursuant to this Section (the
"Policies") (i) shall be issued by an insurer satisfactory to Lender in its sole
discretion, (ii) shall contain the standard New York mortgagee or equivalent
non-contribution clause naming Lender as the person to which all payments made
by such insurance company shall be paid, (iii) shall be maintained throughout
the term of this Security Instrument without cost to Lender, (iv) a certificate
thereof shall be delivered to Lender, (v) shall contain such provisions as
Lender deems reasonably necessary or desirable to protect its interest
including, without limitation, endorsements providing that neither Borrower,
Lender nor any other party shall be a coinsurer under the Policies and that
Lender shall receive at least thirty (30) days prior written notice of any
modification or cancellation, and (vi) shall be reasonably satisfactory in form
and substance to Lender and shall be reasonably approved by Lender as to
amounts, form, risk coverage, deductibles, loss payees and insureds. Not later
than ten (10) days prior to the expiration date of each of the Policies,
Borrower shall deliver to Lender satisfactory evidence of the renewal of each
Policy.
(d) Lender is hereby authorized and empowered, at its option, to adjust or
compromise any loss under any Policies and to collect and receive the proceeds
from any such Policies. Each insurance company is hereby authorized and
directed to make payment for all such losses directly to Lender as its interest
might appear, instead of to Borrower and Lender jointly. If any insurance
company fails to disburse directly and solely to Lender but instead disburses
either solely to Borrower or to Borrower and Lender jointly, Borrower agrees
immediately to endorse and transfer
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such proceeds to Lender to the extent of Lender's interest therein. Upon the
failure of Borrower to endorse and transfer such proceeds as aforesaid, Lender
may execute such endorsements or transfers for and in the name of Borrower, and
Borrower hereby irrevocably appoints Lender as Borrower's agent and attorney-in-
fact so to do. Lender shall not be held responsible for any failure to collect
any insurance proceeds due under the terms of any policy regardless of the cause
of such failure. The proceeds of any insurance collected by Lender arising from
any casualty affecting the Mortgaged Property shall be applied and disbursed in
accordance with, and subject to the conditions of, Section 3.07 of this Security
Instrument.
3.06. Condemnation. Borrower shall promptly give Lender written notice of
the actual or threatened commencement of any condemnation or eminent domain
proceeding affecting the Mortgaged Property and shall deliver to Lender copies
of any and all papers served in connection with such proceedings. No taking by
any public or quasi-public authority through eminent domain or otherwise
(including but not limited to any transfer made in lieu of or in anticipation of
the exercise of such taking) shall limit or otherwise affect Borrower's
obligations under the Loan Agreement, this Security Instrument, or any of the
other Loan Documents to which Borrower is a party. Lender is authorized, at its
option, to commence, appear in, and prosecute, through counsel selected by
Lender, in its own or in Borrower's name, any action or proceeding relating to
any such condemnation, provided that, if Lender's determines that the
compensation, award, or payment or relief to be collected from such action or
proceeding will likely be less than the Casualty Benchmark (as defined in
Section 3.07 below), then Lender shall not unreasonably withhold its consent to
permitting Borrower the sole right to prosecute any such action or proceeding.
If an Event of Default exists, Lender shall have the sole and exclusive right to
compromise or settle any claim for compensation. All such compensation, awards,
damages, claims, rights of action, and proceeds and the right thereto are hereby
assigned by Borrower to Lender, and Lender is authorized, at its option, to
collect and receive all such compensation, awards, or damages and to give proper
receipts and acquittances therefor without any obligation to question the amount
of any such compensation, awards, or damages. Lender will be entitled to all
compensation, awards, and other payments or relief therefor; provided that if
the amount of such compensation, awards, and other payments or relief is equal
to or less than the Casualty Benchmark, Borrower may collect same. Lender shall
not be limited to the interest paid on the award by the condemning authority but
shall be entitled to receive out of the award interest at the rate or rates
provided herein and in the Note. Any such compensation, awards, and other
payments received by Lender, after deducting therefrom all of Lender's expenses
incurred in the collection and administration of such sums, including reasonable
attorney's fees actually incurred, shall be applied and disbursed in accordance
with Section 3.07 below. If the Mortgaged Property is sold, through foreclosure
or otherwise, prior to the receipt by Lender of such award or payment, Lender
shall have the right, whether or not a deficiency judgment on the Note shall
have been sought, recovered or denied, to receive said award or payment, or a
portion thereof sufficient to pay the Secured Obligations. Borrower shall file
and prosecute or cause to be filed and prosecuted its claim or claims for any
such award or payment in good faith and with due diligence and cause the same to
be paid over to Lender, and hereby irrevocably authorizes and empowers Lender,
in the name of Borrower or otherwise, to collect and receive any such award or
payment and to file and prosecute such claim or claims, and although it is
hereby expressly agreed that the same shall not be necessary in any event,
Borrower shall, upon demand of Lender, make, execute and deliver any and all
assignments and other instruments sufficient for the purpose of assigning any
such award or payment to Lender, free and clear of any encumbrances of any kind
or nature whatsoever.
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3.07. Restoration and Repair of Mortgaged Property. In the event of a
casualty or a taking by eminent domain of all or other portion of the Mortgaged
Property, the following provisions shall apply in connection with the repair and
restoration of the Mortgaged Property (a "Restoration"):
(a) In the event that (i) the net proceeds of insurance
received by Lender as a result of damage or destruction of the
Mortgaged Property, or in the case of condemnation, the net amount of
all awards and payments received by Lender with respect to such
taking, after deduction of Lender's reasonable costs and expenses
(including, but not limited to, reasonable legal costs and expenses
actually incurred), in collecting the same, whichever the case may be
(the "Net Proceeds") do not exceed $250,000.00 (the "Casualty
Benchmark"), (ii) the costs of completing the Restoration, as
reasonably estimated by Lender, shall be less than or equal to the
Casualty Benchmark, (iii) no Event of Default shall have occurred and
be continuing, (iv) the Mortgaged Property and the use thereof after
the Restoration shall be in compliance with, and permitted under, all
Legal Requirements (as defined in the Loan Agreement), (v) such fire
or other casualty or taking, as applicable, does not materially impair
access to the Land or to the Improvements, then Lender shall disburse
the entire Net Proceeds directly to Borrower, and Borrower shall
commence and diligently prosecute to completion the Restoration to as
nearly as possible the condition the Mortgaged Property was in
immediately prior to such fire or other casualty or to such taking or
to such other condition as may be agreed upon between Borrower and
Lender. Borrower shall segregate the Net Proceeds from other funds of
Borrower to be used to pay for the cost of the Restoration in
accordance with the terms hereof.
(b) If the Net Proceeds are greater than the Casualty
Benchmark, such Net Proceeds shall be held by Lender in a segregated
account to be made available to Borrower for the Restoration in
accordance with the provisions of this Section. Borrower shall
commence and diligently prosecute to completion the Restoration of the
Mortgaged Property (in the case of a taking, to the extent the
Mortgaged Property is capable of being restored). The Net Proceeds
shall be made available to Borrower for payment of, or reimbursement
of Borrower's expenses in connection with, the Restoration, subject to
the following conditions:
(1) No Event of Default shall have occurred and
be continuing;
(2) Lender shall, within a reasonable period to
time prior to request for initial disbursement of the
Net Proceeds, be furnished with an estimate of the cost
of the Restoration accompanied by an independent
architect's certification as to such costs and
appropriate plans and specifications for the
Restoration;
(3) The Net Proceeds, together with any cash or
cash equivalent deposited by Borrower with Lender, are
sufficient to cover the cost of the Restoration as such
costs are certified by the independent architect;
(4) Lender shall be satisfied that any operating
deficits, including all Monthly Payments, that shall be
incurred with respect to
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the Property as a result of the occurrence of any such
fire or other casualty or taking, whichever the case
may be, shall be covered out of the Net Proceeds or
other funds of Borrower;
(5) Lender shall be satisfied that, upon the
completion of the Restoration and related lease-up, the
ABB Lease Documents (as defined in the Loan Agreement)
shall remain in full force and affect with no abatement
of rent except to the extent covered by business
interruption insurance and /or condemnation proceeds
and the net cash flow and value of the Mortgaged
Property shall otherwise be restored to levels that
existed prior to such casualty or condemnation;
(6) The Restoration can reasonably be completed
on or before the earlier to occur of (i) six (6) months
prior to the maturity of the Note and (ii) the date
required pursuant to Legal Requirements (as defined in
the Loan Agreement);
(7) The Mortgaged Property and the use thereof
after the Restoration shall be in compliance with, and
permitted under, all Legal Requirements; and
(8) Such fire or other casualty or taking, as
applicable, does not materially impair access to the
Land or the Improvements.
(b) The Net Proceeds shall be held by Lender, and until
disbursed in accordance with the provisions of this Section, shall
constitute additional security for the Obligations. The Net Proceeds
shall be disbursed by Lender to, or directed by, Borrower from time to
time during the course of the Restoration, in accordance with the Loan
Agreement as if the Net Proceeds constituted the original proceeds of
the Loan.
(c) Lender shall have the use of the plans and specifications
and all permits, licenses and approvals required or obtained in
connection with the Restoration. The identity of the contractors,
subcontractors and materialmen engaged in the Restoration, as well as
the contracts under which they have been engaged, shall be subject to
prior review and acceptance by Lender and Lender's Consultant, which
acceptance shall not be unreasonably withheld or delayed more than
fifteen (15) days after submission to Lender and Lender's Consultant.
All costs and expenses incurred by Lender in connection with making
the Net Proceeds available for the Restoration including, without
limitation, reasonable counsel fees and disbursements and Lender's
Consultant's fees, shall be paid by Borrower.
(d) In no event shall Lender be obligated to make disbursements
of the Net Proceeds in excess of an amount equal to the costs actually
incurred from time to time for work in place as part of the
Restoration, as certified by Lender's Consultant, minus a reasonably
retainage. The retainage shall in no event, and notwithstanding
anything to the contrary set forth above in this Section, be less than
the amount actually held back by Borrower from contractors,
subcontractors, and materialmen engaged in the Restoration. The
retainage shall not be released until Lender's Consultant certifies to
Lender that the Restoration has been completed in
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accordance with the provisions of this Section and that all approvals
necessary for the re-occupancy and use of the Property have been
obtained from all appropriate governmental and quasi-governmental
authorities, and Lender receives evidence satisfactory to Lender that
the costs of the Restoration have been paid in full or shall be paid
in full out of the retainage.
(e) If at any time the Net Proceeds or the undisbursed balance
thereof shall not, in the opinion of Lender, be sufficient to pay in
full the balance of the costs which are estimated by Lender's
Consultant to be incurred in connection with the completion of the
Restoration, Borrower shall deposit the deficiency (the "Net Proceeds
Deficiency") with Lender before any further disbursement of the Net
Proceeds shall be made. The Net Proceeds Deficiency deposited with
Lender shall be held by Lender and shall be disbursed for costs
actually incurred in connection with the Restoration on the same
conditions applicable to the disbursement of the Net Proceeds, and
until so disbursed pursuant to this Section shall constitute
additional security for the Obligations.
(f) The excess, if any, of the Net Proceeds and the remaining
balance, if any, of the Net Proceeds Deficiency deposited with Lender
after Lender's Consultant certifies to Lender that the Restoration has
been completed in accordance with the provisions of this Section and
the receipt by Lender of evidence satisfactory to Lender that all
costs incurred in connection with the Restoration have been paid in
full, shall be remitted by Lender to Borrower, provided no Event of
Default shall have occurred and be continuing.
(g) Any Net Proceeds not required (i) to be made available for
the Restoration or (ii) to be returned to Borrower as excess Net
Proceeds pursuant to the preceding subsection shall be retained and
applied by Lender toward the payment of the Obligations, whether or
not then due and payable, in such order, priority, and proportions as
Lender in its discretion shall deem proper or, at the discretion of
Lender, the same shall be paid, either in whole or in part, to
Borrower.
3.08. Care of Mortgaged Property.
(a) Borrower will preserve and maintain the Mortgaged Property in good
condition and repair, will not commit or suffer any waste, and will not do or
suffer to be done anything that will increase the risk of fire or other hazard
to the Mortgaged Property or any part thereof. Borrower will maintain the
insurance required by the Loan Agreement. Lender is hereby authorized to enter
upon and inspect the Mortgaged Property at any time during normal business
hours. Borrower will comply promptly with all present and future laws,
ordinances, rules, and regulations of any governmental authority affecting the
Mortgaged Property or any part thereof, including, without limitation, the
Americans with Disabilities Act and regulations thereunder, and all laws,
ordinances, rules and regulations relating to zoning, building codes, set back
requirements, and environmental matters.
(b) No Improvements, Equipment, or other part of the Mortgaged Property
shall be removed, demolished, or substantially altered without the prior written
consent of Lender. Borrower may, free from the lien and security interest of
this Security Instrument, sell or consume Inventory in the ordinary course of
business and, provided no Default or Event of Default then exists, sell or
otherwise dispose of Equipment that might become worn out, undesirable,
obsolete, disused or unnecessary for use in the operation of the Mortgaged
Property upon replacing the same by, or
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substituting for the same, other Equipment not necessarily of the same
character, but of at least equal value to Borrower and costing not less than the
amount realized from the Equipment sold or otherwise disposed of, which shall
forthwith become, without further action, subject to the lien and security
interest of this Security Instrument.
(c) If the Mortgaged Property or any part thereof is damaged by fire or
any other Vcause or through condemnation, Borrower will give immediate written
notice of the same to Lender. Upon the occurrence of any such casualty or
condemnation and provided that Lender makes any insurance proceeds or
condemnation awards collected as a result of such casualty or condemnation
available to Borrower pursuant to the provisions of the Loan Agreement, then
Borrower will restore promptly the Mortgaged Property to the equivalent of its
original condition, regardless of whether such insurance proceeds or
condemnation awards shall be sufficient in amount therefor.
3.09. Leases and Management Agreements. Borrower shall not, without the
prior written consent and approval of Lender, enter into any Lease or permit any
tenancy of or affecting the Mortgaged Property except for Leases conforming to
the requirements of the Loan Agreement, or enter into or permit any management
agreement, of or affecting the Mortgaged Property, except as expressly permitted
by the Loan Agreement.
3.10. Expenses. Borrower will pay or reimburse Lender for all reasonable
attorneys' fees, costs and expenses incurred by Lender in any proceedings
involving the estate of a decedent or an insolvent, or in any action, legal
proceeding or dispute of any kind in which Lender is made a party, or appears as
party plaintiff or defendant, affecting the Secured Obligations, this Security
Instrument or the interest created herein, or the Mortgaged Property, including
but not limited to the exercise of any power of sale of this Security
Instrument, any condemnation action involving the Mortgaged Property, any
dispute or other matter involving a Lease or any tenant thereunder, or any
action to protect the security hereof, and any such amounts paid by Lender shall
be added to the Secured Obligations.
3.11. Further Assurances; After Acquired Mortgaged Property. At any time,
and from time to time, upon request by Lender, Borrower will make, execute and
deliver or cause to be made, executed and delivered, to Lender, any and all
other further instruments, certificates, and other documents as may, in the
reasonable opinion of Lender, be necessary or desirable to (i) perfect and
protect the lien and security interest created or purported to be created
hereby, (ii) enable Lender to exercise and enforce any and all rights and
remedies hereunder in respect of the Mortgaged Property, or (iii) effect
otherwise the purposes of this Security Instrument, including, without
limitation, (A) executing and filing such financing or continuation statements,
or amendments thereto, as may be necessary or desirable or that Lender might
request to perfect and preserve the security interest created by this Security
Instrument as a first and prior security interest upon and security title in and
to all of the Mortgaged Property, whether now owned or hereafter acquired by
Borrower, (B) if certificates of title are now or hereafter issued or
outstanding with respect to any of the Mortgaged Property, by immediately
causing the interest of Lender to be properly noted thereon at Borrower's
expense, and (C) furnishing to Lender from time to time statements and schedules
further identifying and describing the Mortgaged Property and such other reports
in connection with the Mortgaged Property as Lender might request, all in
reasonable detail. Upon any failure by Borrower so to do, Lender may make,
execute, and record any and all such instruments, certificates, and documents
for and in the name of Borrower, and Borrower hereby irrevocably appoints Lender
the agent and attorney in fact of Borrower so to do, which power of attorney is
coupled with an interest and irrevocable. The lien and security interest hereof
shall attach automatically without any further act or deed required of Borrower
or Lender to all after-acquired property of the kind described
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herein attached to or used in connection with the operation of the Mortgaged
Property or any part thereof.
3.12. Indemnification of Expenses.
(a) Borrower will pay, reimburse, and indemnify Trustee and Lender for
all reasonable attorney's fees, costs, and expenses incurred by Trustee or
Lender in any suit, action, trial, appeal, bankruptcy or other legal proceeding
or dispute of any kind in which Trustee or Lender is made a party or appears as
party plaintiff or defendant, affecting the Secured Obligations, this Security
Instrument or the interests created herein, or the Mortgaged Property, or any
appeal thereof, including, but not limited to, any foreclosure action, any
condemnation action involving the Mortgaged Property or any action to protect
the security hereof, any bankruptcy or other insolvency proceeding commenced by
or against Borrower, any lessee of the Mortgaged Property (or any part thereof),
or any guarantor of any of the Secured Obligations, and any such amounts paid by
Trustee or Lender shall be added to the Secured Obligations and shall be secured
by this Security Instrument. Borrower will indemnify and hold Trustee and Lender
harmless from and against all claims, damages, and expenses, including
reasonable attorney's fees and court costs, resulting from any action by a third
party against Trustee or Lender relating to this Security Instrument or the
interests created herein, or the Mortgaged Property, including, but not limited
to, any action or proceeding claiming loss, damage or injury to person or
property, or any action or proceeding claiming a violation of any national,
state or local law, rule or regulation, provided Borrower shall not be required
to indemnify Trustee or Lender for matters directly and solely caused by the
willful misconduct or gross negligence of Trustee or Lender or for matters
occurring after the title to the Mortgaged Property is for any reason
transferred to Lender.
(b) Borrower acknowledges that it has undertaken the obligation to pay
all intangibles taxes and documentary taxes now or hereafter due in connection
with the Secured Obligations and the Loan Documents, and Borrower agrees to
indemnify and hold Lender harmless from any intangibles taxes and documentary
stamp taxes, and any interest or penalties, that Lender might hereafter be
required to pay in connection with the Secured Obligations or Loan Documents.
The agreements of this subsection (b) shall expressly survive satisfaction of
this Security Instrument and the repayment of the Secured Obligations.
3.13. Estoppel Certificates.
(a) After request by Lender, Borrower, within ten (10) days, shall
furnish Lender or any proposed assignee with a statement, duly acknowledged and
certified, setting forth (i) the amount of the original principal amount of the
Note, (ii) the unpaid principal amount of the Note, (iii) the rate of interest
of the Note, (iv) the terms of payment and maturity date of the Note, (v) the
date installments of interest and/or principal were last paid, (vi) that, except
as provided in such statement, there are no Defaults or Events of Default under
the Note, the Loan Agreement, or this Security Instrument, (vii) that the Note,
the Loan Agreement, and this Security Instrument are valid, legal and binding
obligations and have not modified or if modified, giving particulars of such
modification, (viii) whether any offsets or defenses exist against the Secured
Obligations and, if any are alleged to exist, a detailed description thereof,
(ix) that all Leases are in full force and effect and (provided the Mortgaged
Property is not a residential multifamily property) have not been modified (or
if modified, setting forth all modifications), (x) the date to which the Rents
thereunder have been paid pursuant to the Leases, (xi) whether or not, to the
best knowledge of Borrower, any of the lessees under the Leases are in default,
setting forth the specific nature of all such defaults, (xii) the amount of
security deposits held by Borrower under each Lease and that such amounts are
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consistent with the amounts required under each Lease, and (xii) the amount of
security deposits held by Borrower under each Lease and that such amounts are
consistent with the amounts required under each Lease, and (xiii) as to any
other matters reasonably requested by Lender and reasonably related to the
Leases, the Secured Obligations, the Mortgaged Property or this Security
Instrument.
(b) If requested by Lender, Borrower shall use commercially reasonable
efforts to obtain and promptly deliver to Lender, duly executed estoppel
certificates from any one or more tenants as required by Lender attesting to
such facts regarding the Leases as Lender may require, including, but not
limited to attestations that each Lease covered thereby is in full force and
effect with no defaults thereunder or on the part of any party, that none of the
Rents have been paid more than one month in advance, except as security, and
that the tenant claims no defense or offset against the full and timely
performance of its obligations under the Lease.
3.14. Splitting of Security Instrument. This Security Instrument and the
Note shall, at any time until the same shall be fully paid and satisfied, at the
sole election of Lender, be split or divided into two or more notes and two or
more security instruments, each of which shall cover all or a portion of the
Mortgaged Property upon written request of Lender, shall execute, acknowledge
and deliver to Lender and/or its designee or designees substitute notes and
security instruments in such principal amounts, aggregating not more than the
then unpaid principal amount secured by this Security Instrument, and containing
terms, provisions and clauses no less favorable to Borrower than those contained
herein and in the Note, and such other documents and instruments as may be
required by Lender to effect the splitting of the Note and this Security
Instrument.
3.15. Replacement Documents. Upon receipt of an affidavit of an officer of
Lender as to the loss, theft, destruction or mutilation of the Note or any other
Loan Document which is not of public record, and, in the case of any such
mutilation, upon surrender and cancellation of such Note or other Loan Document
which is not of public record, and, in the case of any such mutilation, upon
surrender and cancellation of such Note or other Loan Document, Borrower will
issue, in lieu thereof, a replacement note or other Loan Document, dated the
date of such lost, stolen, destroyed or mutilated note or other Loan Document in
the same principal amount thereof and otherwise of like tenor.
3.16. Subrogation. Lender shall be subrogated to the claims and liens of
all parties whose claims or liens are discharged or paid by Lender in order to
protect or preserve the Mortgaged Property and the value thereof as security for
Secured Obligations.
3.17. Limit of Validity. To the extent the fulfillment of any provision of
this Security Instrument at the time such provision is to be performed shall
involve transcending the limit of validity presently prescribed by any
applicable usury or similar law, the obligation to be fulfilled under such
provision shall ipso facto be reduced to the limit of such validity.
3.18. Hazardous Material.
(a) Borrower hereby represents and warrants to Lender that, as of the
date hereof Borrower has received no written notice (i) that the Mortgaged
Property is in direct or indirect violation of any local, state or federal law,
rule or regulation pertaining to environmental regulation, contamination or
clean-up (collectively, "Hazardous Material Laws"), including, without
limitation, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 (42 U.S.C. (S)9601 et seq. and 40 CFR (S)302.1 et seq.), the
Resource Conservation and Recovery Act of 1976 (42
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X.X.X. (X)0000 et seq.), The Federal Water Pollution Control Act (33 U.S.C.
(S)1251 et seq. and 40 CFR (S)116.1 et seq.), and the Hazardous Materials
Transportation Act (49 U.S.C. (S)1801 et seq.), and the regulations promulgated
pursuant to said laws, all as amended; and any similar laws and regulations of
the state having jurisdiction over the Mortgaged Property; (ii) of any
hazardous, toxic or harmful substances, wastes, materials, pollutants or
contaminants (including, without limitation, asbestos, polychlorinated
biphenyls, petroleum products, flammable explosives, radioactive materials,
infectious substances or raw materials which include hazardous constituents) or
any other substances or materials which are included under or regulated by
Hazardous Material Laws (collectively, "Hazardous Material") are located on or
have been handled, generated, stored, processed or disposed of on or released or
discharged at, onto or under from the Mortgaged Property (including underground
contamination) except for those substances used by Borrower in the ordinary
course of its business and in compliance with all Hazardous Material Laws; (iii)
that the Mortgaged Property is subject to any private or governmental lien or
judicial or administrative notice or action relating to Hazardous Material; (iv)
of any existing or closed underground storage tanks or other underground storage
receptacles for Hazardous Material located on the Mortgaged Property; (v) of any
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 Hazardous Material Laws with respect to any
condition, use or operation of the Mortgaged Property nor does Borrower know of
any basis for such a claim; and (vi) of any claim by any party that any use,
operation or condition of the Mortgaged Property violates any Hazardous Material
Laws.
(b) Borrower shall keep or cause the Mortgaged Property to be kept free
from Hazardous Material (except those substances used by Borrower or tenants of
the Mortgaged Property in the ordinary course of their respective business and
in compliance with all Hazardous Material Laws) and in compliance with all
Hazardous Material Laws, shall not install or use any underground storage tanks,
shall expressly prohibit the use, generation, handling, storage, production,
processing and disposal of Hazardous Material (except those substances used by
Borrower or tenants of the Mortgaged Property in the ordinary course of their
respective business and in compliance with all Hazardous Material Laws) by all
lessees of space in the Improvements, and, without limiting the generality of
the foregoing, during the term of this Security Instrument, shall not install in
the Improvements or permit to be installed in the Improvements asbestos or any
substance containing asbestos.
(c) Borrower shall promptly notify Lender if Borrower shall become aware
of the possible existence of any Hazardous Material (except those substances
used by Borrower or tenants of the Mortgaged Property in the ordinary course of
their respective business and in compliance with all Hazardous Material Laws) on
the Mortgaged Property or if Borrower shall become aware that the Mortgaged
Property is or may be in direct or indirect violation of any Hazardous Material
Laws. Further, immediately upon receipt of the same, Borrower shall deliver to
Lender copies of any and all orders, notices, permits, applications, reports,
and other communications, documents and instruments received by Borrower
pertaining to the actual, alleged or potential presence or existence of any such
Hazardous Material at, on, about, under, within, near or in connection with the
Mortgaged Property. Borrower shall, promptly and when and as required by any
Hazardous Material Laws, at Borrower's sole cost and expense, take, or cause
Lessee to take, all actions as shall be necessary or advisable for the clean-up
of any and all portions of the Mortgaged Property or other affected property,
including, without limitation, all investigative, monitoring, removal,
containment and remedial actions in accordance with all applicable Hazardous
Material Laws (and in all events in a manner satisfactory to Lender), and shall
further pay or cause to be paid, at no expense to Lender, all clean-up,
administrative and enforcement costs of applicable governmental agencies
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which may be asserted against the Mortgaged Property. In the event Borrower
fails to do so, Lender may, but shall not be obligated to, cause the Mortgaged
Property or other affected property to be freed from any Hazardous Material
(except those substances used by Borrower or tenants of the Mortgaged Property
in the ordinary course of their respective business and in compliance with all
Hazardous Material Laws) or otherwise brought into conformance with Hazardous
Material Laws and any and all costs and expenses incurred by Lender in
connection therewith, together with interest thereon at the Default Rate (as
defined in the Loan Agreement) from the date incurred by Lender until actually
paid by Borrower, shall be immediately paid by Borrower 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. Borrower
hereby grants to Lender and its agents and employees access to the Mortgaged
Property and a license to remove any Hazardous Material (except those substances
used by Borrower or tenants of the Mortgaged Property in the ordinary course of
their respective business and in compliance with all Hazardous Material Laws)
and to do all things Lender shall deem necessary to bring the Mortgaged Property
in conformance with Hazardous Material Laws. Borrower covenants and agrees, at
Borrower's sole cost and expense, to indemnify, defend (at trial and appellate
levels, and with attorneys, consultants and experts acceptable to Lender), and
hold Lender harmless from and against any and all liens, damages, losses,
liabilities, obligations, settlement payments, penalties, 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
Lender or the Mortgaged Property, and arising directly or indirectly from or out
of (i) the presence, release or threat of release of any Hazardous Material on,
in, under or affecting all or any portion of the Mortgaged Property or any
surrounding areas, regardless of whether or not caused by or within control of
Borrower; (ii) the violation of any Hazardous Material Laws relating to or
affecting the Mortgaged Property, caused by Borrower; (iii) the failure by
Borrower to comply fully with the terms and conditions of this Section; (iv) the
breach of any representation or warranty contained in this Section; or (v) the
enforcement of this Section, including, without limitation, the cost of
assessment, containment and/or removal of any and all Hazardous Material from
all or any portion of the Mortgaged Property or any surrounding areas, the cost
of any actions taken in response to the presence, release or threat of release
of any Hazardous Material on, in, under or affecting any portion of the
Mortgaged 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 the Hazardous Material Laws in connection with
all or any portion of the Mortgaged Property or any surrounding areas. The
indemnity set forth in this Section shall also include any diminution in the
value of the security afforded by the Mortgaged Property or any future reduction
in the sales price of the Mortgaged Property by reason of any matter set forth
in this Section. Lender's rights under this paragraph shall survive payment in
full of the Secured Obligations and shall be in addition to all other rights of
Lender under this Security Instrument, the Loan Agreement, the Note and the
other Loan Documents. The foregoing indemnity shall specifically not include any
such costs relating to Hazardous Materials that are initially placed on, in or
under the Mortgaged Property after title thereto is for any reason transferred
to Trustee or Lender, or which result directly and solely from the willful
misconduct or gross neglect of Trustee or Lender.
(d) Upon Lender's request, at any time after the occurrence and during the
continuation of an Event of Default hereunder or at such other time as Lender
has reasonable grounds to believe that Hazardous Material (except those
substances used by Borrower or tenants of the Mortgaged
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Property in the ordinary course of their respective business and in compliance
with all Hazardous Material Laws) are or have been released, stored or disposed
of on or around the Mortgaged Property or that the Mortgaged Property may be in
violation of the Hazardous Material Laws, Borrower shall provide, at Borrower's
sole cost and expense, an inspection or audit of the Mortgaged Property prepared
by a hydrogeologist or environmental engineer or other appropriate consultant
approved by Lender indicating the presence or absence of Hazardous Material on
the Mortgaged Property or an inspection or audit of the Improvements prepared by
an engineering or consulting firm approved by Lender in writing indicating the
presence or absence of friable asbestos or substances containing asbestos on the
Mortgaged Property. If Borrower fails to provide such inspection or audit within
forty-five (45) days after such request, Lender may order the same, and Borrower
hereby grants to Lender and its employees and agents access to the Mortgaged
Property and a license to undertake such inspection or audit. The cost of such
inspection or audit, together with interest thereon at the Default Rate from the
date incurred by Lender until actually paid by Borrower, shall be immediately
paid by Borrower on demand and shall be secured by this Security Instrument and
by all of the other Loan Documents.
(e) Without limiting the foregoing, where recommended by a "Phase I" or
"Phase II" assessment (an "Environmental Report"), Borrower shall establish and
comply with an operations and maintenance program relative to the Mortgaged
Property, in form and substance acceptable to Lender, prepared by an
environmental consultant acceptable to Lender, which program shall address any
Hazardous Material (including asbestos containing material or lead based paint)
that may now or in the future be detected on the Mortgaged Property. Without
limiting the generality of the preceding sentence, Lender may require (i)
periodic notices or reports to Lender in form, substance and at such intervals
as Lender may specify to address matters raised in the Environmental Report,
(ii) an amendment to such operations and maintenance program to address changing
circumstances, laws or other matters, (iii) at Borrower's sole expense,
supplemental examination of the Mortgaged Property by consultants specified by
Lender to address matters raised in the Environmental Report, (iv) access to the
Mortgaged Property, by Lender, its agents or servicer, to review and assess the
environmental condition of the Mortgaged Property and Borrower's compliance with
any operations and maintenance program, and (v) variation of the operations and
maintenance program in response to the reports provided by any such consultants.
(f) If any action shall be brought against Lender based upon any of the
matters for which Lender is indemnified under this Section, Lender shall notify
Borrower in writing thereof and Borrower shall promptly assume the defense
thereof, including, without limitation, the employment of counsel acceptable to
Lender and the negotiation of any settlement; provided, however, that any
failure of Lender to notify Borrower of such matter shall not impair or reduce
the obligations of Borrower hereunder. Lender shall have the right, at the
expense of Borrower (which expense shall be included in the costs described in
subsection (c) above), to employ separate counsel in any such action and to
participate in the defense thereof. In the event Borrower shall fail to
discharge or undertake to defend Lender against any claim, loss or liability for
which Lender is indemnified hereunder, Lender may, at its sole option and
election, defend or settle such claim, loss or liability. The liability of
Borrower to Lender hereunder shall be conclusively established by such
settlement, provided such settlement is made in good faith, the amount of such
liability to include both the settlement consideration and the costs and
expenses, including, without limitation attorneys' fees and disbursements,
incurred by Lender in effecting such settlement. In such event, such settlement
consideration, costs and expenses shall be included in costs described in
subsection (c) above and Borrower shall pay the same as provided in this
Section. Lender's good faith in any such settlement shall be conclusively
established if the settlement is made on the advice of independent legal counsel
for Lender.
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Article IV - Events of Default and Remedies
4.01. Events of Default. As used in this Security Instrument, the term
"Event of Default" shall mean the occurrence of any one or more of the following
events:
(a) The default or failure of Borrower properly and timely to
comply with the terms and conditions of this Security Instrument that
is not cured within applicable cure periods set forth herein or, if no
cure period is specified therefor, is not cured within thirty (30)
days after notice is sent by Lender to Borrower specifying such
default;
(b) The occurrence of any Event of Default (as therein
defined) under the Loan Agreement, the Note, or any of the other Loan
Documents and not cured within any applicable cure period; or
(c) The sale, transfer, lease, assignment, or other
disposition, voluntarily or involuntarily, of the Mortgaged Property,
or any part thereof or any interest therein, including a sale or
transfer in lieu of condemnation, or, except for Permitted
Encumbrances, any further encumbrance of the Mortgaged Property,
unless expressly permitted by the Loan Agreement or unless the prior
written consent of Lender is obtained (which consent may be withheld
with or without cause in Lender's discretion).
4.02. Acceleration of Maturity. If an Event of Default has occurred, Lender
may declare all of the Secured Obligations to be forthwith due and payable,
whereupon all the Secured Obligations shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by Borrower, and Lender may immediately
enforce payment of all such amounts and exercise any or all of its rights and
remedies under this Security Instrument, the Loan Agreement, and the other Loan
Documents. No delay or omission on the part of Lender to exercise such option
when entitled so to do shall be considered as a waiver of such right.
4.03. Right of Lender to Enter and Take Possession.
(a) If an Event of Default has occurred, Borrower, upon demand of Lender,
shall forthwith surrender to Lender the actual possession of the Mortgaged
Property and, if and to the extent permitted by law, Lender itself, or by such
officers or agents as it may appoint, may enter and take possession of all or
any part of the Mortgaged Property without the appointment of a receiver or an
application therefor, and may exclude Borrower and its agents and employees
wholly therefrom, and take possession of the books, papers and accounts of
Borrower.
(b) If Borrower shall for any reason fail to surrender or deliver the
Mortgaged Property or any part thereof after such demand by Lender, Lender may
obtain a judgment or decree conferring upon Lender the right to immediate
possession or requiring Borrower to deliver immediate possession of the
Mortgaged Property to Lender. Borrower will pay to Lender, upon demand, all
expenses of obtaining such judgment or decree, including compensation to Lender,
its attorneys and agents, and all such expenses and compensation shall, until
paid, become part of the Secured Obligations and shall be secured by this
Security Instrument.
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(c) Upon every such entering upon or taking of possession, Lender may
hold, store, use, operate, manage and control the Mortgaged Property and conduct
the business thereof, and, from time to time (i) make all necessary and proper
repairs, renewals, replacements, additions, betterments, and improvements
thereto and purchase or otherwise acquire additional fixtures, personalty, and
other property; (ii) insure or keep the Mortgaged Property insured; (iii) manage
and operate the Mortgaged Property and exercise all the rights and powers of
Borrower, in its name or otherwise, with respect to the same, and (iv) enter
into any and all agreements with respect to the exercise by others of any of the
powers herein granted Lender, all as Lender may from time to time determine to
be to its best advantage. Lender may collect and receive all Rents and Accounts,
including those past due as well as those accruing thereafter, and after
deducting (aa) all expenses of taking, holding, managing, and operating the
Mortgaged Property (including compensation for the services of all persons
employed for such purposes), (bb) the cost of all such maintenance, repairs,
renewals, replacements, additions, betterments, improvements, purchases, and
acquisitions, (cc) the cost of such insurance, (dd) such taxes, assessments, and
other charges as Lender may reasonably determine to pay, (ee) other proper
charges upon the Mortgaged Property or any part thereof, and (ff) the
compensation and expenses of attorneys and agents of Lender, Lender shall apply
the remainder of the money so received to the other Secured Obligations in such
order, priority, and proportions as Lender may elect. Lender's sole duty with
respect to the custody, safekeeping, and physical preservation of the Mortgaged
Property shall be to deal with it in the same manner as Lender deals with
similar property for its own account. For the purpose of carrying out the
provisions of this Section, Borrower hereby constitutes and appoints Lender the
true and lawful attorney in fact of Borrower, which power of attorney is coupled
with an interest and irrevocable, to do and perform, from time to time, any and
all actions necessary and incidental to such purpose and does, by these
presents, ratify and confirm any and all actions of said attorney in fact on the
Mortgaged Property. Anything in this Section to the contrary notwithstanding,
Lender shall not be obligated to discharge or perform the duties of a landlord
to any tenant or incur any liability as a result of any exercise by Lender of
its rights under this Security Instrument, and Lender shall be liable to account
only for the Rents actually received by Lender.
(d) Whenever all the Secured Obligations shall have been paid and all
Events of Default shall have been cured, Lender shall surrender possession of
the Mortgaged Property to Borrower and its successors or assigns. The same right
of taking possession, however, shall exist if any subsequent Event of Default
shall occur and be continuing.
4.04. Performance by Lender. If Borrower defaults in the payment of any
tax, lien, assessment, or charge levied or assessed against the Mortgaged
Property, or in the payment of any utility charge, whether public or private, or
in the payment of any insurance premium, or in the procurement of insurance
coverage and the delivery of the insurance policies required in the Loan
Agreement, or in the performance or observance of any other covenant, condition,
or term of this Security Instrument, then Lender, at its option, may perform or
observe the same, and all payments made or costs incurred by Lender in
connection therewith shall constitute Secured Obligations and shall be, without
demand, immediately repaid by Borrower to Lender with interest thereon at the
Default Rate specified in the Loan Agreement. Lender shall be the sole judge of
the legality, validity, and priority of any such tax, lien, assessment, charge,
claim, and premium, of the necessity for any such actions, and of the amount
necessary to be paid in connection therewith. Lender is hereby empowered to
enter and to authorize others to enter upon the Mortgaged Property or any part
thereof for the purpose of performing or observing any such defaulted covenant,
condition, or term, without thereby becoming liable to Borrower.
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4.05. Appointment of a Receiver. If an Event of Default has occurred,
Lender, upon application to a court of competent jurisdiction, shall be
entitled, without regard to the adequacy of any security for the Secured
Obligations or the solvency of any party bound for its payment, to the
appointment of a receiver to take possession of and to operate the Mortgaged
Property and to collect the rents, profits, issues and revenues thereof.
Borrower will pay to Lender upon demand all expenses, including, without
limitation, all receivers' fees, reasonable attorneys' fees, and agent's
compensation, incurred pursuant to the provisions of this Section, and all such
expenses shall constitute Secured Obligations.
4.06. Power of Sale. If an Event of Default shall have occurred, Trustee
shall, upon request of Lender, sell the Mortgaged Property (or, if the Mortgaged
Property shall consist of more than one parcel, such parcel or parcels thereof
as Lender may select) for cash or upon such terms and conditions as they may
deem expedient, and at such time as they may consider advisable, at public
auction at the Mortgaged Property, in front of the Circuit Court building of the
city or county in which the Mortgaged Property is located, or such other place
within the city or county in which the Mortgaged Property is located, after
giving notice thereof to Borrower by having first advertised the time, place and
terms of sale for five (5) successive times, which may be five (5) successive
days, in a newspaper having a general circulation in the county or city in which
the Mortgaged Property or some portion thereof is located; provided, however,
that such sale must not be held earlier than eight (8) days following the first
advertisement nor more than thirty (30) days following the last advertisement. A
copy of the notice of sale shall be sent by certified mail to Borrower no less
than fourteen (14) days prior to the date of sale. Trustees shall have the right
to make further public advertisement as they deem advisable. Trustee shall apply
the proceeds of any such sale as provided in Section 55-59.4.3 of the Code of
Virginia, as amended. At any sale made under the terms hereof, Trustee may
require from each bidder, before his bid is received, a deposit of not more than
ten percent (10%) of the sale price. Prior to or at the time of the sale,
Trustee may, in its discretion, postpone the sale, in which event notice of such
postponement shall be published in the same manner as the original advertisement
of sale or as otherwise required by Virginia law. Trustee's commission in the
event of advertisement, but payment before sale, shall be reasonable fees not in
excess of two and one-half percent (2 1/2%) of the outstanding Secured
Obligations. The exercise of the power of sale hereunder by Trustee on one or
more occasions shall not be deemed to extinguish the power of sale which power
of sale shall continue in full force and effect until all of the Mortgaged
Property shall have been finally sold and property conveyed to the purchasers at
the sales. Trustee shall deliver to the purchaser at any such trustee's sale its
deed, without warranty, which shall convey to the purchaser the interest in the
Mortgaged Property which Borrower has or has the power to convey at the time of
the execution of the Security Instrument, and such as it may have acquired
hereafter. The Trustee's deed shall recite the facts showing that the sale was
conducted in compliance with all the requirements of law and of this Security
Instrument, which recital shall be prima facie evidence of such compliance and
conclusive evidence thereof in favor of bona fide purchasers and encumbrancers
for value.
4.07. Lender's Power of Enforcement. If an Event of Default has occurred,
Lender may, either with or without entry or taking possession as hereinabove
provided or otherwise and in lieu of or in addition to exercising any power of
sale hereinafter given in this Security Instrument, proceed by suit or suits at
law or in equity or any other appropriate proceeding or remedy (i) to enforce
payment of the Note or the performance of any term thereof or any other right,
(ii) to foreclose this Security Instrument and to sell the Mortgaged Property as
provided by law or in equity, and (iii) to pursue any other remedy available to
it, all as Lender shall deem most effectual for such purposes. Lender shall take
action either by such proceedings or by the exercise of its powers with respect
to entry or taking possession, as Lender may determine.
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4.08. UCC Remedies. This Security Instrument is a "security agreement"
within the meaning of the UCC. The Mortgaged Property includes both real and
personal property and all other rights and interests, whether tangible or
intangible in nature, of Borrower in the Mortgaged Property. Borrower by
executing and delivering this Security Instrument has granted and hereby grants
to Borrower, as security for the Secured Obligations, a security interest in the
Mortgaged Property to the full extent that the Mortgaged Property may be subject
to the UCC (said portion of the Mortgaged Property so subject to the UCC being
referred to in this Security Instrument as the "Collateral"). If an Event of
Default occurs, Lender may exercise, in addition to all other rights and
remedies granted to it in this Security Instrument and in any other Loan
Document, all rights and remedies of a secured party under the UCC. Without
limiting the generality of the foregoing, Lender, without demand of performance
or other demand, presentment, protest, advertisement or notice of any kind
(except any notice required by law referred to below) to or upon Borrower or any
other person (all and each of which demands, defenses, advertisements and
notices are hereby waived), may in such circumstances forthwith collect,
receive, appropriate and realize upon the Collateral , or any part thereof,
and/or may forthwith sell, lease, assign, give option or options to purchase, or
otherwise dispose of and deliver the Collateral or any part thereof (or contract
to do any of the foregoing), in one or more parcels at public or private sale or
sales, at any exchange, broker's board or office of Lender or elsewhere upon
such terms and conditions as it may deem advisable and at such prices as it may
deem best, for cash or on credit or for future delivery without assumption of
any credit risk. Lender shall have the right upon any such public sale or
sales, and, to the extent permitted by law, upon any such private sale or sales,
to purchase the whole or any part of the Collateral so sold, free of any right
or equity of redemption in Borrower, which right or equity is hereby waived or
released. Borrower further agrees, at Lender's request, to assemble the
Collateral and make it available to Lender at places which Lender shall
reasonably select, whether at Borrower's premises or elsewhere. If any notice
of a proposed sale or other disposition of the Collateral shall be required by
law, such notice shall be deemed reasonable and proper if given at least ten
(10) days before such sale or other disposition.
4.09. Purchase by Lender. Upon any foreclosure or other sale of or any
portion of the Mortgaged Property, Lender may bid for and purchase the Mortgaged
Property or any part thereof and shall be entitled to apply all or any part of
the Secured Obligations as a credit to the purchase price.
4.10. Application of Proceeds of Sale. Any purchase money, proceeds, and
avails of any sale or other disposition of the Mortgaged Property, or any part
thereof, or any other sums collected by Lender pursuant to this Security
Instrument, the Note, or the other Loan Documents may be applied by Lender to
the payment of the Secured Obligations in such priority and proportions as
Lender in its discretion shall deem proper.
4.11. Borrower as Tenant Holding Over. If any sale of the Mortgaged
Property or any part thereof occurs pursuant to this Security Instrument,
Borrower shall be deemed a tenant holding over and shall forthwith deliver
possession to the purchaser or purchasers at such sale or be summarily
dispossessed according to provisions of law applicable to tenants holding over.
4.12. Discontinuance of Proceedings; Restoration of Parties. If Lender
proceeds to enforce any right of remedy under this Security Instrument by
receiver, entry, or otherwise and such proceedings are discontinued or abandoned
for any reason or are determined adversely to Lender, then and in every such
case Borrower and Lender shall be restored to their former positions and
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rights hereunder, and all rights, powers and remedies of Lender shall continue
as if no such proceeding had been taken.
4.13. Remedies Cumulative. No right, power, or remedy conferred upon or
reserved to Lender by this Security Instrument or any of the other Loan
Documents 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 under this
Security Instrument, any such other Loan Document, or now or hereafter existing
at law or in equity or by statute. The exercise by Lender of any such right,
power, and remedy shall not operate as an election of remedies by Lender and
shall not preclude the exercise by Lender of any or all other such rights,
powers, or remedies. If the sale of all or any part of the Mortgaged Property is
permitted hereunder, then such sale of the Mortgaged Property may be in one or
more parcels and in such manner and order as Lender, in its sole discretion, may
elect, it being expressly understood and agreed that the right of sale arising
out of an Event of Default shall not be exhausted by any one or more sales, but
other and successive sales may be made until all of the Mortgaged Property has
been sold or until the Secured Obligations have been fully satisfied.
4.14. Waiver of Appraisement, Valuation, Exemption, Etc. Borrower agrees,
to the full extent permitted by law, that in case of an Event of Default
hereunder, neither Borrower nor anyone claiming through or under Borrower will
set up, claim or seek to take advantage of any appraisement, valuation, stay,
extension, exemption, or laws now or hereafter in force, in order to prevent or
hinder the enforcement or foreclosure of this Security Instrument, or the
absolute sale of the Mortgaged Property or any part thereof, or the delivery of
possession thereof immediately after such sale to the purchaser at such sale,
and Borrower, for itself and all who may at any time claim through or under
Borrower, hereby waives to the full extent that it may lawfully so do, the
benefit of all such laws, and any and all right to have the assets subject to
the lien and security interest of this Security Instrument marshaled upon any
foreclosure or sale under the power herein granted.
4.15. Suits to Protect the Mortgaged Property. Lender shall have power
(i) to institute and maintain such suits and proceedings as it may deem
expedient to prevent any impairment of the Mortgaged Property by any acts which
may be unlawful or any violation of this Security Instrument, (ii) to preserve
or protect its interest in the Mortgaged Property and in the Rents, and (iii) to
restrain the enforcement of or compliance with any legislation or other
governmental enactment, rule, or order that may be unconstitutional or otherwise
invalid, if the enforcement of or compliance with such enactment, rule, or order
would impair the security hereunder or be prejudicial to the interest of Lender.
4.16. Delay or Omission No Waiver. No delay or omission of Lender or of
any holder of the Note 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 Event of Default, or acquiescence
therein, and every right, power, and remedy given by this Security Instrument to
Lender may be exercised from time to time and as often as may be deemed
expedient by Lender.
4.17. No Waiver of Event of Default to Affect Another, etc. No waiver of
any Event of Default hereunder shall extend to or shall affect any subsequent or
any other then existing Event of Default or shall impair any rights, powers, or
remedies consequent thereon. If Lender (i) grants forbearance or an extension
of time for the payment of any of the Secured Obligations, (ii) takes other or
additional security for the payment of the Secured Obligations, (iii) waives or
does not
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exercise any right granted in the Note, this Security Instrument, or any of the
other Loan Documents, (iv) releases any part of the Mortgaged Property from the
lien and interest of this Security Instrument or otherwise changes any of the
terms of the Note, this Security Instrument, or any of the other Loan Documents,
(v) consents to the filing of any map, plat, or replat pertaining to the
Mortgaged Property, (vi) consents to the granting of any easement or license
affecting the Mortgaged Property, or (vii) makes or consents to any agreement
subordinating the lien and interest of this Security Instrument, then any such
act or omission shall not release, discharge, modify, change, or affect the
original liability under the Note, this Security Instrument, or otherwise of
Borrower or any subsequent purchaser of the Mortgaged Property or any part
thereof, or any maker, co-signer, endorser, surety, or guarantor, nor shall any
such act or omission preclude Lender from exercising any right, power, or
privilege herein granted or intended to be granted in the event of any other
Event of Default then made or of any subsequent Event of Default, nor, except as
otherwise expressly provided in an instrument or instruments executed by Lender,
shall the lien and security interest of this Security Instrument be altered
thereby. In the event of the sale or transfer by operation of law or otherwise
of all or any part of the Mortgaged Property, Lender, at its option, without
notice to any person or entity, hereby is authorized and empowered to deal with
any such vendee or transferee with reference to the Mortgaged Property or the
Secured Obligations, or with reference to any of the terms or conditions hereof,
as fully and to the same extent as it might deal with the original parties
hereto and without in any way releasing or discharging any of the liabilities or
undertakings hereunder.
4.18. Proofs of Claim. In the case of any receivership, insolvency,
bankruptcy, reorganization, arrangement, adjustment, composition or other
proceedings affecting Borrower or its creditors or property, Lender, 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
Lender allowed in such proceedings for the entire amount due and payable by
Borrower under this Security Instrument at the date of the institution of such
proceedings and for any additional amount which may become due and payable by
Borrower hereunder after such date.
Article V - Financing Statements and Fixture Filing
5.01. Financing Statements. Borrower covenants and agrees to execute,
file, and refile such financing statements, continuation statements, or other
documents as Lender shall require from time to time with respect to the
Collateral. Borrower agrees that the filing of financing statement(s) in the
records normally having to do with the Collateral shall not in any way affect
the agreement of Borrower that everything used in connection with the production
of income from the Mortgaged Property or adapted for use therein or that is
described or reflected in this Security Instrument is, and at all times and for
all purposes and in all proceedings, both legal or equitable, shall be, regarded
as part of the Land conveyed hereby regardless of whether (i) any such item is
physically attached to the Improvements, (ii) serial numbers are used for the
better identification of certain items capable of being thus identified in an
exhibit to this Security Instrument, or (iii) any such item is referred to or
reflected in any such financing statement(s) so filed at any time. Similarly,
the mention in any such financing statement(s) of the rights in and to (aa) the
proceeds of any insurance policy, (bb) any award in condemnation proceedings for
taking or for loss of value, or (cc) Borrower's interest as lessor in any
present or future Leases or Rents shall not in any way alter any of the rights
of Lender as determined by this Security Instrument or affect the priority of
Lender's security interest granted hereby or by any other recorded document, it
being understood and agreed that such mention in such financing statement(s) is
solely for the protection of Lender in the event any court shall at any time
hold, with respect to the foregoing items (aa), (bb), or (cc), that notice of
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Lender's priority of interest, to be effective against a particular class of
persons, must be filed in the UCC records. This Security Instrument may be filed
as a financing statement in any office where Lender deems such filing necessary
or desirable, and Borrower will promptly upon demand reimburse Lender for the
costs therefor.
5.02. Fixture Filing. To the extent that the Mortgaged Property includes
items of personal property that are or are to become fixtures under applicable
law, and to the extent permitted under applicable law, the filing of this
Security Instrument in the real estate records of the county in which such
Mortgaged Property is located shall also operate from the time of filing as a
fixture filing with respect to such Mortgaged Property, and the following
information is applicable for the purpose of such fixture filing:
(1) Name and address of the debtor:
Xxxxx REIT, LLC - VA I
c/x Xxxxx Real Estate Funds
0000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
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(2) Name and address of the secured party:
SouthTrust Bank, National Association
X.X. Xxx 0000
Xxxxxxxxxx, Xxxxxxx 00000
(3) This documents covers goods or items of personal property which are
or are to become fixtures upon the real estate described herein.
(4) The name of the record owner of the real estate on which such
fixtures are or are to be located is Xxxxx REIT, LLC - VA I.
Article VI - Defeasance
6.01. Defeasance Upon Payment of the Secured Obligations. This Security
Instrument shall cease, terminate, and thereafter be of no further force and
effect in the event that all of the Secured Obligations shall have been paid,
performed, and satisfied in full. Upon such termination and at Borrower's
request and expense, Lender shall execute, acknowledge, and deliver to Borrower
an instrument, in proper form for recording, without warranty, releasing the
lien and security interest of this Security Instrument and reconveying to
Borrower the Mortgaged Property.
6.02. [Intentionally Omitted]
Article VII - Local Law Provisions
7.01. Inconsistencies. In the event of any inconsistencies or dichotomies
between the terms and conditions of this Article VII and the other provisions of
this Security Instrument, the terms and conditions of this Article VII shall be
controlling.
7.02. Local Law Provisions. Notwithstanding anything to the contrary
herein, this Security Instrument is made under and pursuant to the provisions of
the Code of Virginia (the "Code"), Sections 55-59, 55-59.1 through 55-59.4, 55-
60, 26-49 and 55-58.2, as amended, and shall be construed to impose and confer
upon the parties hereto and Lender all rights, duties, and obligations
prescribed by said Sections 55-59, 55-59.1 through 55-59.4, 55-60, 26-49, and
55-58.2, as amended, except as herein otherwise restricted, expanded or changed,
including, without limitation, the following rights, duties and obligations
described in short form and incorporated herein by reference pursuant to Section
55-59.2 and 55-60 of the Code:
(i) All exemptions are hereby waived.
(ii) Subject to all (call) on default.
(iii) Renewal, extension, or reinstatement permitted.
(iv) Substitution of trustee permitted.
(v) Any trustee may act.
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Xxxxx REIT, LLC - VA I (ABB Office Building)
7.03. Commercial Purpose. Borrower hereby represents and warrants
that it is a business or commercial organization organized for the purpose of
holding, developing and managing real estate for profit within the meaning of
Section 6.1-330.76 of the Code of Virginia and further represents and warrants
that the loan was made and transacted solely for the purpose of carrying on or
acquiring a business or commercial investment.
Article VIII - Document Protocols
This Security Instrument is governed by the Document Protocols set forth in
Exhibit A attached to the Loan Agreement, which are specifically incorporated
herein as if fully set forth herein.
Article IX - Deed of Trust Provisions
9.01. Concerning Trustee. Trustee shall be under no duty to take any
action hereunder except as expressly required hereunder or by law or to perform
any act which would involve Trustee in any expense or liability or to institute
or defend any suit in respect hereof, unless properly indemnified to Trustee's
reasonable satisfaction. Trustee, by acceptance of this Security Instrument,
covenants to perform and fulfill the trusts herein created. Trustee shall not
be answerable or accountable hereunder except for its own willful misconduct or
gross negligence, and Borrower agrees to indemnify, defend and hold Trustee
harmless from and against any cost, loss, damage, liability or expense
(including, without limitation, reasonable attorney's fees and disbursements)
which Trustee may incur or sustain in the exercise or performance of its powers
and duties hereunder. Trustee hereby waives any statutory fee and agrees to
accept reasonable compensation, in lieu thereof, for any services rendered by
Trustee in accordance with the terms hereof. Trustee may resign at any time
upon giving at least thirty (30) days' notice to Borrower and Lender. In the
event of the death, removal, resignation, refusal or inability to act of
Trustee, or in its sole discretion for any reason whatsoever, Lender may,
without notice and without specifying any reason therefor and without applying
to any court, select and appoint a successor trustee, by an instrument recorded
wherever this Security Instrument is recorded, and all powers, rights, duties
and authority of Trustee, as aforesaid, shall thereupon become vested in such
successor. Such substitute trustee shall not be required to give bond for the
faithful performance of the duties of Trustee hereunder unless required by
Lender. The procedure provided for in this paragraph for substitution of
Trustee shall be in addition to and not in exclusion of any other provisions for
substitution, by law or otherwise.
9.02. Trustee's Fees. Borrower shall pay all reasonable costs, fees and
expenses incurred by Trustee and Trustee's agents and counsel in connection with
the performance by Trustee of Trustee's duties hereunder, and all such costs,
fees and expenses shall be secured by this Security Instrument.
9.03. Certain Rights. Trustee shall not be personally liable in case of
entry by Trustee, or anyone entering by virtue of the powers herein granted to
Trustee, upon the Mortgaged Property for debts contracted for or liability or
damages incurred in the management or operation of the Mortgaged Property.
Trustee shall have the right to rely on any instrument, document, or signature
authorizing or supporting an action taken or proposed to be taken by Trustee
hereunder, which is believed by Trustee in good faith to be genuine.
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Xxxxx REIT, LLC - VA I (ABB Office Building)
9.04. Retention of Money. All moneys received by Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated in any manner from any other
moneys (except to the extent required by applicable law), and Trustee shall be
under no liability for interest on any moneys received by Trustee hereunder.
9.05. Perfection of Appointment. If any deed, conveyance or other
instrument of any nature be required from Borrower by Trustee or any substitute
trustee to more fully and certainly vest in and confirm to Trustee or such
substitute trustee the estates rights, powers, and duties conferred hereunder
unto Trustee, then, upon request by Trustee or such substitute trustee, any and
all such deeds, conveyances and instruments shall be made, executed,
acknowledged, and delivered and shall be caused to be recorded and/or filed by
Borrower at its sole expense.
9.06. Succession Instruments. Any substitute trustee appointed pursuant
to any of the provisions hereof shall, without any further act, deed or
conveyance, become vested with all the estates, properties, rights, powers, and
trusts of its predecessor in the rights hereunder with like effect as if
originally named as Trustee herein; but nevertheless, upon the written request
of Lender or of the substitute trustee, the predecessor trustee ceasing to act
shall execute and deliver any instrument transferring to such substitute
trustee, upon the trusts herein expressed, all of the estates, properties,
rights, powers and trusts of such predecessor trustee so ceasing to act, and
shall duly assign, transfer and deliver any of the property and moneys held by
such trustee to such substitute trustee.
9.07. Conveyance by Trustee. Upon receipt by Trustee of written notice
from Lender that the Secured Obligations have been fully paid as provided in
Section 6.01 above, Trustee shall reconvey the Mortgaged Property, without
warranty, to Borrower or such Person or Persons lawfully entitled thereto.
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Deed of Trust and Security Agreement - Page 29
Xxxxx REIT, LLC - VA I (ABB Office Building)
IN WITNESS WHEREOF, Borrower has caused this Security Instrument to be
signed and sealed by its duly authorized representative as of the day and year
first above written.
XXXXX REIT, LLC - VA I, a Georgia limited
liability company
By: Xxxxx Real Estate Investment
Trust, Inc.,
a Maryland corporation
Its Sole Manager
By: /s/ Xxx X. Xxxxx, III
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Name: Xxx X. Xxxxx, III
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Title: President
---------------------------------
[Affix corporate seal]
Acknowledgment
STATE OF GEORGIA )
)
COUNTY OF GWINNETT)
The foregoing instrument was acknowledged and signed before me this 15/th/
day of December, 1999, by Xxx X. Xxxxx, III as President, of Xxxxx Real Estate
Investment Trust, Inc., a Maryland corporation, which is the sole manager Xxxxx
REIT, LLC - VA I, a Georgia limited liability company.
My commission expiry: 4-21-2003
Notary Public: /s/ Xxxxxx Xxx Xxxxxx
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Deed of Trust and Security Agreement - Page 30
Xxxxx REIT, LLC - VA I (ABB Office Building)
