EXHIBIT 10.6
Prepared by, recording requested by,
and after recording, return to:
General Electric Capital Business
Asset Funding Corporation
Real Estate Finance Department
00000 Xxxxxxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Loan No. 0010499-001
NOTE: THIS INSTRUMENT IS A PURCHASE MONEY DEED OF TRUST.
COMMERCIAL DEED OF TRUST,
SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS,
AND FIXTURE FILING
(10000 Franklin Square Drive, White Xxxxx, Maryland 21162)
THIS COMMERCIAL DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF LEASES
AND RENTS, AND FIXTURE FILING (herein "Instrument"), made as of October, 2002,
among the Grantor, WHITE XXXXX DISTRIBUTION, LLC, a Maryland limited liability
company, whose address is 000 Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxxx 00000 (herein
"Borrower"), in favor of XXXXX X. XXXXX, whose address is 000 X. Xxxxx Xxxxxx,
0xx Xxxxx, The World Trade Center, Xxxxxxxxx, Xxxxxxxx 00000 (herein "Trustee"),
for the benefit of the Beneficiary, GENERAL ELECTRIC CAPITAL BUSINESS ASSET
FUNDING CORPORATION, a Delaware corporation, whose address is Real Estate
Finance Department, 00000 Xxxxxxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxx 00000 (herein "Lender"),
W I T N E S S E T H:
THAT, WHEREAS, Borrower is justly indebted to Lender in the principal
sum of Fourteen Million Dollars ($14,000,000.00), pursuant to a certain
Promissory Note of even date herewith, having a maturity date of November 1,
2012, and more particularly described below. This Instrument is a Purchase Money
Deed of Trust and the sums advanced by Lender to Borrower constitute all or a
portion of the purchase price of the Property (as defined herein).
NOW, THEREFORE, Borrower, in consideration of the
indebtedness herein recited and the trust herein created, irrevocably
grants, conveys and assigns to Trustee, in trust, WITH POWER OF SALE,
all of Borrower's estate, right, title and interest, now owned or
hereafter acquired, including any reversion or remainder interest, in
the real property located in the City of Xxxxx Xxxxx, Xxxxxx xx
Xxxxxxxxx, Xxxxx xx Xxxxxxxx described on Exhibit A attached hereto
and incorporated herein including all heretofore or hereafter vacated
alleys and streets abutting the property, and all easements, rights,
appurtenances, tenements, hereditaments, rents, royalties, mineral,
oil and gas rights and profits, water, water rights, and water stock
appurtenant to the property (collectively "Premises");
TOGETHER with all of Borrower's estate, right, title and
interest, now owned or hereafter acquired, in:
(a) all buildings, structures, improvements, parking areas,
landscaping, and fixtures now or hereafter erected on, attached to, or used or
adapted for use in the operation of the Premises; including but without being
limited to, all heating, air conditioning and incinerating apparatus; all
boilers, engines, motors, dynamos, generating equipment, piping and plumbing
fixtures, cooling, ventilating, sprinkling and vacuum cleaning systems, fire
extinguishing apparatus, gas and electric fixtures, carpeting, floor coverings,
underpadding, elevators, escalators, partitions, mantels, built-in mirrors,
window shades, blinds, draperies, screens, storm sash, awnings, signs, and
shrubbery and plants, and including also all interest of any owner of the
Premises in any of such items hereafter at any time acquired under conditional
sale contract, chattel mortgage or other title retaining or security instrument,
all of which property mentioned in this clause (a) shall be deemed part of the
realty covered by this Instrument and not severable wholly or in part without
material injury to the freehold of the Premises (all of the foregoing together
with replacements and additions thereto are referred to herein as
"Improvements"); and
(b) all compensation, awards, damages, rights of action and proceeds,
including interest thereon and/or the proceeds of any policies of insurance
therefor, arising out of or relating to a (i) taking or damaging of the Premises
or Improvements thereon by reason of any public or private improvement,
condemnation proceeding (including change of grade), sale or transfer in lieu of
condemnation, or fire, earthquake or other casualty, or (ii) any injury to or
decrease in the value of the Premises or the Improvements for any reason
whatsoever;
(c) return premiums or other payments upon any insurance any time
provided for the benefit of or naming Lender, and refunds or rebates of taxes or
assessments on the Premises;
(d) all the right, title and interest of Borrower in, to and under all
written and oral leases and rental agreements (including extensions, renewals
and subleases; all of the foregoing shall be referred to collectively herein as
the "Leases") now or hereafter affecting the Premises including, without
limitation, all rents, issues, profits and other revenues and income therefrom
and from the renting, leasing or bailment of Improvements and equipment, all
guaranties of tenants' performance under the Leases, and all rights and claims
of any kind that Borrower may have against any tenant under the Leases or in
connection with the termination or rejection of the Leases in a bankruptcy or
insolvency proceeding;
(e) plans, specifications, contracts and agreements relating to the
design or construction of the Improvements; Borrower's rights under any payment,
performance, or other bond in connection with the design or construction of the
Improvements; all landscaping and construction materials, supplies, and
equipment used or to be used or consumed in connection with construction of the
Improvements, whether stored on the Premises or at some other location; and
contracts, agreements, and purchase orders with contractors, subcontractors,
suppliers, and materialmen incidental to the design or construction of the
Improvements;
(f) all contracts, accounts, rights, claims or causes of action
pertaining to or affecting the Premises or the Improvements, including, without
limitation, all options or contracts to acquire other property for use in
connection with operation or development of the Premises or Improvements,
management contracts, service or supply contracts, deposits, bank accounts,
general intangibles (including without limitation trademarks, trade names and
symbols), permits, licenses, franchises and certificates, and all commitments or
agreements, now or hereafter in existence, intended by the obligor thereof to
provide Borrower with proceeds to satisfy the loan evidenced hereby or improve
the Premises or Improvements, and the right to receive all proceeds due under
such commitments or agreements including refundable deposits and fees;
(g) all books, records, surveys, reports and other documents related to
the Premises, the Improvements, the Leases, or other items of collateral
described herein; and
(h) all additions, accessions, replacements, substitutions, proceeds
and products of the real and personal property, tangible and intangible,
described herein.
All of the foregoing described collateral is exclusive of any
furniture, furnishings, equipment or trade fixtures owned and supplied by
tenants of the Premises. The Premises, the Improvements, the Leases and all of
the rest of the foregoing property are herein referred to as the "Property."
TO HAVE AND TO HOLD the above-described Property unto Trustee for the
benefit of Lender and its successors and assigns forever.
BUT THIS IS A TRUST DEED
TO SECURE TO Lender (a) the repayment of the indebtedness evidenced by
that certain Promissory Note dated of even date herewith from Borrower, as
maker, to Lender, as payee, in the principal sum of Fourteen Million Dollars
($14,000,000.00), with interest thereon as set forth therein, and having a
maturity date of November 1, 2012, and all renewals, extensions and
modifications thereof (herein "Note"); (b) the repayment of any future advances,
with interest thereon, made by Lender to Borrower pursuant to Section 30 hereof
(herein "Future Advances"); (c) the payment of all other sums, with interest
thereon, advanced in accordance herewith to protect the security of this
Instrument or to fulfill any of Borrower's obligations hereunder or under the
other Loan Documents (as defined below); (d) the performance of the covenants
and agreements of Borrower contained herein or in the other Loan Documents; and
(e) the repayment of all sums now or hereafter owing to Lender by Borrower
pursuant to any instrument which recites that it is secured hereby. The
indebtedness and obligations described in clauses (a)-(e) above are collectively
referred to herein as the "Indebtedness." The Note, this Instrument, and all
other documents evidencing, securing or guaranteeing the Indebtedness (except
any Certificate And Indemnity Agreement Regarding Hazardous Substances), as the
same may be modified or amended from time to time, are referred to herein as the
"Loan Documents." The terms of the Note secured hereby may provide that the
interest rate or payment terms or balance due may be indexed, adjusted, renewed,
or renegotiated from time to time, and this Instrument shall continue to secure
the Note notwithstanding any such indexing, adjustment, renewal or
renegotiation.
Borrower represents and warrants that Borrower has good, marketable and
insurable title to, and has the right to grant, convey and assign an
indefeasible fee simple estate in, the Premises, Improvements, rents and leases,
and the right to convey the other Property, that the Property is unencumbered
except for those title exceptions not removed from the marked-up Commitment for
Title Insurance, Reference No. 20053-102, issued by Commonwealth Land Title
Insurance Company to Lender insuring the lien of this Instrument, and that
Borrower will warrant and forever defend unto Trustee the title to the Property
against all claims and demands, subject only to the permitted exceptions set
forth in Exhibit B attached hereto.
Borrower represents, warrants, covenants and agrees for the benefit of
Lender as follows:
1. PAYMENT OF PRINCIPAL AND INTEREST. Borrower shall promptly pay when
due the principal of and interest on the Indebtedness, any prepayment and other
charges provided in the Loan Documents and all other sums secured by this
Instrument.
2. FUNDS FOR TAXES, INSURANCE AND OTHER CHARGES. Upon the occurrence of
an Event of Default (hereinafter defined), and at Lender's sole option at any
time thereafter, Borrower shall pay in addition to each monthly payment on the
Note, one-twelfth of the annual real estate taxes, insurance premiums,
assessments, water and sewer rates, ground rents and other charges (herein
"Impositions") payable with respect to the Property (as estimated by Lender in
its sole discretion), to be held by Lender without interest to Borrower, for the
payment of such obligations.
If the amount of such additional payments held by Lender ("Funds") at
the time of the annual accounting thereof shall exceed the amount deemed
necessary by Lender to provide for the payment of Impositions as they fall due,
such excess shall be at Borrower's option, either repaid to Borrower or credited
to Borrower on the next monthly installment or installments of Funds due. If at
any time the amount of the Funds held by Lender shall be less than the amount
deemed necessary by Lender to pay Impositions as they fall due, Borrower shall
pay to Lender any amount necessary to make up the deficiency within thirty (30)
days after written notice from Lender to Borrower requesting payment thereof.
Upon the occurrence and during the continuance of an Event of Default
hereunder, Lender may apply, in any amount and in any order as Lender shall
determine in Lender's sole discretion, any Funds held by Lender at the time of
application (i) to pay Impositions which are now or will hereafter become due,
or (ii) as a credit against sums secured by this Instrument. Upon payment in
full of all sums secured by this Instrument, Lender shall refund to Borrower any
Funds held by Lender.
3. APPLICATION OF PAYMENTS. Unless applicable law provides otherwise,
each complete installment payment received by Lender from Borrower under the
Note or this Instrument shall be applied by Lender first in payment of amounts
payable to Lender by Borrower under Section 2 hereof, then to interest payable
on the Note, then to principal of the Note, and then to interest and principal
on any Future Advances in such order as Lender, at Lender's sole discretion,
shall determine. Upon Borrower's breach of any covenant or agreement of Borrower
in this Instrument, Lender may apply, in any amount and in any order as Lender
shall determine in Lender's sole discretion, any payments received by Lender
under the Note or this Instrument. Any partial payment received by Lender shall,
at Lender's option, be held in a non-interest bearing account until Lender
receives funds sufficient to equal a complete installment payment.
4. CHARGES, LIENS. Borrower shall pay all Impositions attributable to
the Property in the manner provided under Section 2 hereof or, if not paid in
such manner, by Borrower making payment, when due, directly to the payee
thereof, or in such other manner as Lender may designate in writing. If
requested by Lender, Borrower shall promptly furnish to Lender all notices of
Impositions which become due, and in the event Borrower shall make payment
directly, Borrower shall promptly furnish to Lender receipts evidencing such
payments. Borrower shall promptly discharge any lien which has, or may have,
priority over or equality with, the lien of this Instrument, and Borrower shall
pay, when due, the claims of all persons supplying labor or materials to or in
connection with the Property. Without Lender's prior written permission,
Borrower shall not allow any lien inferior to this Instrument to be perfected
against the Property. If any lien inferior to this Instrument is filed against
the Property without Lender's prior written permission and without the consent
of Borrower, Borrower shall, within thirty (30) days after receiving notice of
the filing of such lien, cause such lien to be released of record and deliver
evidence of such release to Lender.
5. INSURANCE. Borrower shall obtain and maintain the following types of
insurance upon and relating to the Property:
(a) "All Risk" property and fire insurance (with extended coverage
endorsement including malicious mischief and vandalism) in an amount not less
than the full replacement value of the Property (with a deductible not to exceed
Three Hundred Thousand Dollars ($300,000.00)), naming Lender under a lender's
loss payee endorsement (form 438BFU or equivalent) and including agreed amount,
inflation guard, replacement cost and waiver of subrogation endorsements;
(b) Comprehensive general liability insurance in an amount not less
than Two Million Dollars ($2,000,000.00) insuring against personal injury, death
and property damage and naming Lender as additional insured;
(c) Business interruption insurance covering loss of rental or other
income (including all expenses payable by tenants) for up to twelve (12) months;
and
(d) Such other types of insurance or endorsements to existing insurance
as may be required from time to time by Lender.
Upon the request of Lender, Borrower shall increase the coverages under
any of the insurance policies required to be maintained hereunder or otherwise
modify such policies in accordance with Lender's request. All of the insurance
policies required hereunder shall be issued by corporate insurers licensed to do
business in the state in which the Property is located and rated A:VIII or
better by A.M. Best Company, and shall be in form acceptable to Lender. If and
to the extent that the Property is located within an area that has been or is
hereafter designated or identified as an area having special flood hazards by
the Department of Housing and Urban Development or such other official as shall
from time to time be authorized by federal or state law to make such designation
pursuant to any national or state program of flood insurance, Borrower shall
carry flood insurance with respect to the Property in amounts not less than the
maximum limit of coverage then available with respect to the Property or the
amount of the Indebtedness, whichever is less. Certificates of all insurance
required to be maintained hereunder shall be delivered to Lender, along with
evidence of payment in full of all premiums required thereunder,
contemporaneously with Borrower's execution of this Instrument. All such
certificates shall be in form acceptable to Lender and shall require the
insurance company to give to Lender at least thirty (30) days' prior written
notice before canceling the policy for any reason or materially amending it.
Certificates evidencing all renewal and substitute policies of insurance shall
be delivered to Lender, along with evidence of the payment in full of all
premiums required thereunder, at least fifteen (15) days before termination of
the policies being renewed or substituted. If any loss shall occur at any time
when Borrower shall be in default hereunder, Lender shall be entitled to the
benefit of all insurance policies held or maintained by Borrower, to the same
extent as if same had been made payable to Lender, and upon foreclosure
hereunder, Lender shall become the owner thereof. Lender shall have the right,
but not the obligation, to make premium payments, at Borrower's expense, to
prevent any cancellation, endorsement, alteration or reissuance of any policy of
insurance maintained by Borrower, and such payments shall be accepted by the
insurer to prevent same.
If any act or occurrence of any kind or nature (including any casualty
for which insurance was not obtained or obtainable) shall result in damage to or
destruction of the Property (such event being called a "Loss"), Borrower will
give prompt written notice thereof to Lender. All insurance proceeds paid or
payable in connection with any Loss shall be paid to Lender. If (i) no Event of
Default has occurred and is continuing hereunder, (ii) Borrower provides
evidence satisfactory to Lender of its ability to pay all amounts becoming due
under the Note during the pendency of any restoration or repairs to or
replacement of the Property, (iii) the available insurance proceeds are, in
Lender's judgment, sufficient to fully and completely restore, repair or replace
the Property and (iv) Borrower provides evidence satisfactory to Lender that
none of the tenants of the Property will terminate their lease agreements as a
result of either the Loss or the repairs to or replacement of the Property,
Borrower shall have the right to apply all insurance proceeds received in
connection with such Loss either (a) to restore, repair, replace and rebuild the
Property as nearly as possible to its value, condition and character immediately
prior to such Loss, or (b) to the payment of the Indebtedness in such order as
Lender may elect. If an Event of Default has occurred and is continuing
hereunder at the time of such Loss, if Lender determines that Borrower will be
unable to pay all amounts becoming due under the Note during the pendency of any
restoration or repairs to or replacement of the Property, if the available
insurance proceeds are insufficient, in Lender's judgment, to fully and
completely restore, repair or replace the Property or if Lender believes that
one or more tenants of the Property will terminate their lease agreements as a
result of either the Loss or the repairs to or replacement of the Property, then
all of the insurance proceeds payable with respect to such Loss will be applied
to the payment of the Indebtedness, or if so instructed by Lender, Borrower will
promptly, at Borrower's sole cost and expense and regardless of whether
sufficient insurance proceeds shall be available, commence to restore, repair,
replace and rebuild the Property as nearly as possible to its value, condition,
character immediately prior to such Loss. Borrower shall diligently prosecute
any restoration, repairs or replacement of the Property undertaken by or on
behalf of Borrower pursuant to this Section 5. All such work shall be conducted
pursuant to written contracts approved by Lender in writing. Notwithstanding
anything contained herein to the contrary, in the event the insurance proceeds
received by Lender following any Loss are insufficient in Lender's judgment to
fully and completely restore, repair or replace the Property, and if Borrower
has complied with all of the other conditions described in this Section 5,
Borrower may elect to restore, repair or replace the Property if it first
deposits with Lender such additional sums as Lender determines are necessary in
order to fully and completely restore, repair or replace the Property. In the
event any insurance proceeds remain following the restoration, repair or
replacement of the Property, such proceeds shall be applied to the Indebtedness
in such order as Lender may elect.
Borrower waives any and all right to claim or recover against Lender or
its officers, employees, agents and representatives, for loss of or damage to
Borrower, the Property, Borrower's property or the property of others under
Borrower's control from any cause insured against or required to be insured
against under this Section 5.
6. PRESERVATION AND MAINTENANCE OF PROPERTY. Borrower (a) shall not
commit waste or permit impairment or deterioration of the Property, (b) shall
not abandon the Property, (c) shall restore or repair promptly and in a good and
workmanlike manner all or any part of the Property to the equivalent of its
original condition, or such other condition as Lender may approve in writing, in
the event of any damage, injury or loss thereto, whether or not insurance
proceeds are available to cover in whole or in part the costs of such
restoration or repair, (d) shall keep the Property, including all improvements,
fixtures, equipment, machinery and appliances thereon, in good repair and shall
replace fixtures, equipment, machinery and appliances on the Property when
necessary to keep such items in good repair, (e) shall comply with all laws,
ordinances, regulations and requirements of any governmental body applicable to
the Property, (f) if all or part of the Property is for rent or lease, then
Lender, at its option after the occurrence of an Event of Default, may require
Borrower to provide for professional management of the Property by a property
manager satisfactory to Lender pursuant to a contract approved by Lender in
writing, unless such requirement shall be waived by Lender in writing, and (g)
shall give notice in writing to Lender of and, unless otherwise directed in
writing by Lender, appear in and defend any action or proceeding purporting to
affect the Property, the security of this Instrument or the rights or powers of
Lender hereunder. Neither Borrower nor any tenant or other person, without the
written approval of Lender, shall remove, demolish or alter any Improvement now
existing or hereafter erected on the Premises and owned by Borrower or any
Property except when incident to the replacement of fixtures, equipment,
machinery and appliances with items of like kind.
To the best of Borrower's knowledge, the Property is and shall be in
compliance with the Americans with Disabilities Act of 1990 and all of the
regulations promulgated thereunder, as the same may be amended from time to
time.
7. USE OF PROPERTY. Unless required by applicable law or unless Lender
has otherwise agreed in writing, Borrower shall not allow changes in the use for
which all or any part of the Property was intended at the time this Instrument
was executed. Borrower shall not, without Lender's prior written consent, (i)
initiate or acquiesce in a change in the zoning classification (including any
variance under any existing zoning ordinance applicable to the Property), (ii)
permit the use of the Property to become a non-conforming use under applicable
zoning ordinances, (iii) file any subdivision or parcel map affecting the
Property, or (iv) amend, modify or consent to any easement or covenants,
conditions and restrictions pertaining to the Property.
8. PROTECTION OF LENDER'S SECURITY. If Borrower fails to perform any of
the covenants and agreements contained in this Instrument, or if any action or
proceeding is commenced which affects the Property or title thereto or the
interest of Lender therein, including, but not limited to, eminent domain,
insolvency, code enforcement, or arrangements or proceedings involving a
bankrupt or decedent, then Lender at Lender's option may make such appearances,
disburse such sums and take such action as Lender deems necessary, in its sole
discretion, to protect Lender's interest, including, but not limited to, (i)
disbursement of attorneys' fees, (ii) entry upon the Property to make repairs,
and (iii) procurement of satisfactory insurance as provided in Section 5 hereof.
Any amounts disbursed by Lender pursuant to this Section 8, with
interest thereon, shall become additional Indebtedness of Borrower secured by
this Instrument. Unless Borrower and Lender agree to other terms of payment,
such amounts shall be immediately due and payable and shall bear interest from
the date of disbursement at the rate stated in the Note as applicable after
default. Borrower hereby covenants and agrees that Lender shall be subrogated to
the lien of any mortgage or other lien discharged, in whole or in part, by the
Indebtedness. Nothing contained in this Section 8 shall require Lender to incur
any expense or take any action hereunder.
9. INSPECTION. Upon prior reasonable notice to Borrower, Lender may
make or cause to be made reasonable entries upon the Property to inspect the
interior and exterior thereof.
10. FINANCIAL DATA. Borrower will furnish to Lender on or before April
15 of each successive year: (a) an annual operating statement, together with a
complete rent roll and other supporting data reflecting all material information
with respect to the operation of the Property and Improvements, and (b) all
other financial information and reports that Lender may from time to time
reasonably request, including if Lender so requires income tax returns of
Borrower and financial statements of any tenants designated by Lender.
Borrower shall cause Charming Shoppes, Inc., a Pennsylvania corporation
("Charming Shoppes"), to supply to Lender each of the Forms 10-Q and 10-K filed
by Charming Shoppes with the Securities And Exchange Commission promptly after
the filing thereof.
During the continuance of any uncured Event of Default, Borrower will
furnish to Lender, and will cause Charming Shoppes of Delaware, Inc., a
Pennsylvania corporation ("CSD"), to furnish to Lender, within ninety (90) days
after the close of their respective fiscal years, annual balance sheets and
profit and loss statements prepared in accordance with generally accepted
accounting principles and practices consistently applied and, if Lender so
requires, accompanied by the annual audit report of an independent certified
public accountant reasonably acceptable to Lender.
11. CONDEMNATION. If the Property, or any part thereof, shall be
condemned for any reason, including without limitation fire or earthquake
damage, or otherwise taken for public or quasi-public use under the power of
eminent domain, or be transferred in lieu thereof, all damages or other amounts
awarded for the taking of, or injury to, the Property shall be paid to Lender
who shall have the right, in its sole and absolute discretion, to apply the
amounts so received against (a) the costs and expenses of Lender or Trustee,
including reasonable attorneys' fees incurred in connection with collection of
such amounts, and (b) the balance against the Indebtedness; provided, however,
that if (i) no Event of Default shall have occurred and be continuing hereunder,
(ii) Borrower provides evidence satisfactory to Lender of its ability to pay all
amounts becoming due under the Note during the pendency of any restoration or
repairs to or replacement of the Property, (iii) Lender determines, in its sole
discretion, that the proceeds of such award are sufficient to restore, repair,
replace and rebuild the Property as nearly as possible to its value, condition
and character immediately prior to such taking (or, if the proceeds of such
award are insufficient for such purpose, if Borrower provides additional sums to
Lender's satisfaction so that the aggregate of such sums and the proceeds of
such award will be sufficient for such purpose), and (iv) Borrower provides
evidence satisfactory to Lender that none of the tenants of the Property will
terminate their lease agreements as a result of either the condemnation or
taking or the repairs to or replacement of the Property, the proceeds of such
award, together with additional sums provided by Borrower, shall be placed in a
separate account for the benefit of Lender and Borrower to be used to restore,
repair, replace and rebuild the Property as nearly as possible to its value,
condition and character immediately prior to such taking. All work to be
performed in connection therewith shall be pursuant to a written contract
therefor, which contract shall be subject to the prior approval of Lender. To
the extent that any funds remain after the Property has been so restored and
repaired, the same shall be applied against the Indebtedness in such order as
Lender may elect. To enforce its rights hereunder, Lender shall be entitled to
participate in and control any condemnation proceedings and to be represented
therein by counsel of its own choice, and Borrower will deliver, or cause to be
delivered to Lender such instruments as may be requested by it from time to time
to permit such participation. In the event Lender, as a result of any such
judgment, decree or award, believes that the payment or performance of any of
the Indebtedness is impaired, Lender may declare all of the Indebtedness
immediately due and payable.
12. BORROWER AND LIEN NOT RELEASED. From time to time, Lender may, at
Lender's option, without giving notice to or obtaining the consent of Borrower,
Borrower's successors or assigns or of any junior lienholder or guarantors,
without liability on Lender's part and notwithstanding Borrower's breach of any
covenant or agreement of Borrower in this Instrument, extend the time for
payment of the Indebtedness or any part thereof, reduce the payments thereon,
release anyone liable on any of the Indebtedness, accept an extension or
modification or renewal note or notes therefor, modify the terms and time of
payment of the Indebtedness, release from the lien of this Instrument any part
of the Property, take or release other or additional security, reconvey any part
of the Property, consent to any map or plan of the Property, consent to the
granting of any easement, join in any extension or subordination agreement, and
agree in writing with Borrower to modify the rate of interest or period of
amortization of the Note or change the amount of the monthly installments
payable thereunder. Any actions taken by Lender pursuant to the terms of this
Section 12 shall not affect the obligation of Borrower or Borrower's successors
or assigns to pay the sums secured by this Instrument and to observe the
covenants of Borrower contained herein, shall not affect the guaranty of any
person, corporation, partnership or other entity for payment of the
Indebtedness, and shall not affect the lien or priority of the lien hereof on
the Property. Borrower shall pay Lender a service charge, together with such
title insurance premiums and attorneys' fees as may be incurred at Lender's
option, for any such action if taken at Borrower's request.
13. FORBEARANCE BY LENDER NOT A WAIVER. Any forbearance by Lender in
exercising any right or remedy hereunder, or otherwise afforded by applicable
law, shall not be a waiver of or preclude the exercise of any other right or
remedy. The acceptance by Lender of payment of any sum secured by this
Instrument after the due date of such payment shall not be a waiver of Lender's
right to either require prompt payment when due of all other sums so secured or
to declare a default for failure to make prompt payment. The procurement of
insurance or the payment of taxes or other liens or charges by Lender shall not
be a waiver of Lender's right to accelerate the maturity of the Indebtedness
secured by this Instrument, nor shall Lender's receipt of any awards, proceeds
or damages under Sections 5 and 11 hereof operate to cure or waive Borrower's
default in payment of sums secured by this Instrument.
14. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. This Instrument is
intended to be a security agreement pursuant to the Maryland Uniform Commercial
Code for any of the items specified above as part of the Property which, under
applicable law, may be subject to a security interest pursuant to the Maryland
Uniform Commercial Code, and Borrower hereby grants and conveys to Lender a
first and prior security interest in all of the Property that constitutes
personalty, whether now owned or hereafter acquired. Borrower agrees that Lender
may file this Instrument, or a reproduction thereof, in the real estate records
or other appropriate index, as a financing statement for any of the items
specified above as part of the Property. Any reproduction of this Instrument or
of any other security agreement or financing statement shall be sufficient as a
financing statement. In addition, Borrower agrees to execute and deliver to
Lender, upon Lender's request, any financing statements, as well as extensions,
renewals and amendments thereof, and reproductions of this Instrument in such
form as Lender may require to perfect a security interest with respect to the
foregoing items. Borrower shall pay all costs of filing such financing
statements and any extensions, renewals, amendments and releases thereof, and
shall pay all costs and expenses of any record searches for financing statements
Lender may require. Without the prior written consent of Lender, Borrower shall
not create or suffer to be created pursuant to the Maryland Uniform Commercial
Code any other security interest in said items, including replacements and
additions thereto. Upon Borrower's breach of any covenant or agreement of
Borrower contained in this Instrument, including the covenants to pay when due
all sums secured by this Instrument, Lender shall have the remedies of a secured
party under the Maryland Uniform Commercial Code, and Lender may also invoke the
remedies provided in Section 26 of this Instrument as to such items. In
exercising any of said remedies Lender may proceed against the items of real
property and any items of personal property specified above separately or
together and in any order whatsoever, without in any way affecting the
availability of Lender's remedies under the Maryland Uniform Commercial Code or
of the remedies provided in Section 26 of this Instrument.
15. LEASES OF THE PROPERTY. Borrower shall comply with and observe
Borrower's obligations as landlord under all Leases of the Property or any part
thereof. All Leases now or hereafter entered into will be in form and substance
subject to the pre-approval of Lender as to the creditworthiness of the proposed
tenant and the term of the lease. All Leases of the Property shall specifically
provide that such Leases are subordinate to this Instrument; that the tenant
attorns to Lender, such attornment to be effective upon Lender's acquisition of
title to the Property; that the tenant agrees to execute such further evidences
of attornment as Lender may from time to time request; that the attornment of
the tenant shall not be terminated by foreclosure; and that Lender may, at
Lender's option, accept or reject such attornments. Borrower shall not, without
Lender's written consent, request or consent to the subordination of any Lease
of all or any part of the Property to any lien subordinate to this Instrument.
If Borrower becomes aware that any tenant proposes to do, or is doing, any act
or thing which may give rise to any right of set-off against rent, Borrower
shall (i) take such steps as shall be reasonably calculated to prevent the
accrual of any right to a set-off against rent, (ii) immediately notify Lender
thereof in writing and of the amount of said set-offs, and (iii) within ten (10)
days after such accrual, reimburse the tenant who shall have acquired such right
to set-off or take such other steps as shall effectively discharge such setoff
and as shall assure that rents thereafter due shall continue to be payable
without set-off or deduction. Upon Lender's receipt of notice of the occurrence
of any default or violation by Borrower of any of its obligations under the
Leases, Lender shall have the immediate right, but not the duty or obligation,
without prior written notice to Borrower or to any third party, to enter upon
the Property and to take such actions as Lender may deem necessary to cure the
default or violation by Borrower under the Leases. The costs incurred by Lender
in taking any such actions pursuant to this paragraph shall become part of the
Indebtedness, shall bear interest at the rate provided in the Note, and shall be
payable by Borrower to Lender on demand. Lender shall have no liability to
Borrower or to any third party for any actions taken by Lender or not taken
pursuant to this paragraph.
16. REMEDIES CUMULATIVE. Each remedy provided in this Instrument is
distinct and cumulative to all other rights or remedies under this Instrument or
afforded by law or equity, and may be exercised concurrently, independently, or
successively, in any order whatsoever.
17. TRANSFERS OF THE PROPERTY OR BENEFICIAL INTERESTS IN BORROWER;
ASSUMPTION. Lender may, at its option, declare all sums secured by this
Instrument to be immediately due and payable, and Lender may invoke any remedies
permitted by Section 26 of this Instrument, if title to the Property is changed
without the prior written consent of Lender, which consent shall be at Lender's
sole discretion. Any transfer of any interest in the Property or in the income
therefrom, by sale, lease (except for leases to tenants in the ordinary course
of managing income property which are approved by Lender pursuant to Section 15
of this Instrument), contract, mortgage, deed of trust, further encumbrance or
otherwise (including any such transfers as security for additional financing of
the Property), and any change in the ownership interests in Borrower (including
any transfer, pledge, assignment, or hypothecation of, or other change in the
ownership interests of any legal entities which comprise or control Borrower),
except transfers and changes in ownership by devise or descent, shall be
considered a change of title. Lender shall have the right to condition its
consent to any proposed sale or transfer described in this Section 17 upon,
among other things, Lender's reasonable approval of the transferee's
creditworthiness and management ability, and the transferee's execution, prior
to the sale or transfer, of a written assumption agreement containing such terms
as Lender may require, including, if required by Lender, the imposition of an
assumption fee of one percent (1%) of the then outstanding balance of the
Indebtedness. Consent by Lender to one transfer of the Property shall not
constitute consent to subsequent transfers or waiver of the provisions of this
Section 17. No transfer by Borrower shall relieve Borrower of liability for
payment of the Indebtedness. Borrower shall pay any recording tax, recording
cost, title insurance premium, attorneys' fees, or other third-party expenses
incurred by Lender in connection with any transfer, whether or not consent is
required.
18. NOTICE. Except for any notice required under applicable law to be
given in another manner, any and all notices, elections, demands, or requests
permitted or required to be made under this Instrument or under the Note shall
be in writing, signed by the party giving such notice, election, demand or
request, and shall be delivered personally, by telegram, or sent by registered,
certified, or Express United States mail, postage prepaid, or by Federal Express
or similar service requiring a receipt, to the other party at the address stated
above, or to such other party and at such other address within the United States
of America as any party may designate in writing as provided herein. The date of
receipt of such notice, election, demand or request shall be the earliest of (i)
the date of actual receipt, (ii) three (3) days after the date of mailing by
registered or certified mail, (iii) one (1) day after the date of mailing by
Express Mail or the delivery (for redelivery) to Federal Express or another
similar service requiring a receipt, or (iv) the date of personal delivery (or
refusal upon presentation for delivery).
19. SUCCESSORS AND ASSIGNS BOUND; JOINT AND SEVERAL LIABILITY; AGENTS;
CAPTIONS. The covenants and agreements herein contained shall bind, and the
rights hereunder shall inure to, the respective heirs, successors and assigns of
Lender and Borrower, subject to the provisions of Section 17 hereof. If Borrower
is comprised of more than one person or entity, whether as individuals,
partners, partnerships or corporations, each such person or entity shall be
jointly and severally liable for Borrower's obligations hereunder. In exercising
any rights hereunder or taking any actions provided for herein, Lender may act
through its employees, agents or independent contractors as authorized by
Lender. The captions and headings of the sections of this Instrument are for
convenience only and are not to be used to interpret or define the provisions
hereof.
20. WAIVER OF STATUTE OF LIMITATIONS. Borrower hereby waives the right
to assert any statute of limitations as a bar to the enforcement of the lien of
this Instrument or to any action brought to enforce the Note or any other
obligation secured by this Instrument.
21. WAIVER OF MARSHALING. Notwithstanding the existence of any other
security interests in the Property held by Lender or by any other party, Lender
shall have the right to determine the order in which any or all of the Property
shall be subjected to the remedies provided herein. Lender shall have the right
to determine the order in which any or all portions of the Indebtedness secured
hereby are satisfied from the proceeds realized upon the exercise of the
remedies provided herein. Borrower, any party who consents to this Instrument
and any party who now or hereafter acquires a security interest in the Property
and who has actual or constructive notice hereof hereby waives any and all right
to require the marshalling of assets in connection with the exercise of any of
the remedies permitted by applicable law or provided herein.
22. HAZARDOUS WASTE. Borrower has furnished to Lender a Phase I
Environmental Site Assessment dated September 9, 2002, prepared by Environmental
Resources Management (the "Report"). Except as disclosed to Lender in the
Report, Borrower has received no notification of any kind suggesting that the
Property or any adjacent property is or may be contaminated with any hazardous
waste or materials or is or may be required to be cleaned up in accordance with
any applicable law or regulation; and Borrower further represents and warrants
that, except as previously disclosed to Lender in the Report, to the best of its
knowledge as of the date hereof, there are no hazardous waste or materials
located in, on or under the Property or any adjacent property, or incorporated
in any Improvements, nor has the Property or any adjacent property ever been
used as a landfill or a waste disposal site, or a manufacturing, handling,
storage, distribution or disposal facility for hazardous waste or materials. As
used herein, the term "hazardous waste or materials" includes any substance or
material defined in or designated as hazardous or toxic wastes, hazardous or
toxic material, a hazardous, toxic or radioactive substance, or other similar
term, by any federal, state or local statute, regulation or ordinance now or
hereafter in effect. Borrower shall promptly comply with all statutes,
regulations and ordinances, and with all orders, decrees or judgments of
governmental authorities or courts having jurisdiction, relating to the use,
collection, treatment, disposal, storage, control, removal or cleanup of
hazardous waste or materials in, on or under the Property, or incorporated in
any Improvements, at Borrower's expense. Except as disclosed to Lender in the
Report, in the event that Lender at any time believes that the Property is not
free of all hazardous waste or materials or that Borrower has violated any
applicable environmental law with respect to the Property, then immediately,
upon request by Lender, Borrower shall obtain and furnish to Lender, at
Borrower's sole cost and expense, an environmental audit and inspection of the
Property from an expert satisfactory to Lender. In the event that Borrower fails
to obtain such audit or inspection, Lender or its agents (i) may perform or
obtain such audit or inspection at Borrower's sole cost and expense, and (ii)
may, but is not obligated to, enter upon the Property and take such actions and
incur such costs and expenses to effect such compliance as it deems advisable to
protect its interest in the Property; and whether or not Borrower has actual
knowledge of the existence of hazardous waste or materials on the Property or
any adjacent property as of the date hereof, Borrower shall reimburse Lender as
provided in Section 23 below for the full amount of all costs and expenses
incurred by Lender prior to Lender acquiring title to the Property through
foreclosure or acceptance of a deed in lieu of foreclosure, in connection with
such compliance activities. Neither this provision nor any of the other Loan
Documents shall operate to put Lender in the position of an owner of the
Property prior to any acquisition of the Property by Lender. The rights granted
to Lender herein and in the other Loan Documents are granted solely for the
protection of Lender's lien and security interest covering the Property, and do
not grant to Lender the right to control Borrower's actions, decisions or
policies regarding hazardous waste or materials.
23. ADVANCES, COSTS AND EXPENSES. Borrower shall pay within ten (10)
days after written demand from Lender all sums advanced by Lender and all costs
and expenses incurred by Lender in taking any actions pursuant to the Loan
Documents including reasonable attorneys' fees and disbursements, accountants'
fees, appraisal and inspection fees and the costs for title reports and
guaranties, together with interest thereon at the rate applicable under the Note
after an Event of Default from the date such costs were advanced or incurred.
All such costs and expenses incurred by Lender, and advances made, shall
constitute advances under this Instrument to protect the Property and shall be
secured by and have the same priority as the lien of this Instrument. If
Borrower fails to pay any such advances, costs and expenses and interest
thereon, Lender may apply any undisbursed loan proceeds to pay the same, and,
without foreclosing the lien of this Instrument, may at its option commence an
independent action against Borrower for the recovery of the costs, expenses
and/or advances, with interest, together with costs of suit, costs of title
reports and guaranty of title, disbursements of counsel and reasonable
attorneys' fees incurred therein or in any appeal therefrom.
24. ASSIGNMENT OF LEASES AND RENTS. Borrower, for good and valuable
consideration, the receipt of which is hereby acknowledged, to secure the
Indebtedness, does hereby absolutely and unconditionally grant, bargain, sell,
transfer, assign, convey, set over and deliver unto Lender all right, title and
interest of Borrower in, to and under the Leases of the Property, whether now in
existence or hereafter entered into, and all guaranties, amendments, extensions
and renewals of said Leases and any of them, and all rents, income and profits
which may now or hereafter be or become due or owing under the Leases, and any
of them, or on account of the use of the Property.
Borrower represents, warrants, covenants and agrees with Lender as
follows:
(a) The sole ownership of the entire lessor's interest in the Leases is
vested in Borrower, and Borrower has not, and shall not, perform any acts or
execute any other instruments which might prevent Lender from fully exercising
its rights with respect to the Leases under any of the terms, covenants and
conditions of this Instrument.
(b) The Leases are and shall be valid and enforceable in accordance
with their terms and have not been and shall not be altered, modified, amended,
terminated, canceled, renewed or surrendered except as approved in writing by
Lender. The terms and conditions of the Leases have not been and shall not be
waived in any manner whatsoever except as approved in writing by Lender.
(c) Borrower shall not alter the term or reduce the amount of rent
payable under any Lease without prior written notice to Lender and Lender's
consent.
(d) There are no defaults now existing under any of the Leases, and, to
the best of Borrower's knowledge, there exists no state of facts which, with the
giving of notice or lapse of time or both, would constitute a default under any
of the Leases.
(e) Borrower shall give prompt written notice to Lender of any notice
received by Borrower claiming that a default has occurred under any of the
Leases on the part of Borrower, together with a complete copy of any such
notice.
(f) Each of the Leases shall remain in full force and effect
irrespective of any merger of the interest of lessor and any lessee under any of
the leases.
(g) Borrower will not permit any Lease to become subordinate to any
lien other than the lien of this Instrument.
The assignment made hereunder is an absolute, present assignment from
Borrower to Lender, effective immediately, and is not merely an assignment for
security purposes but is irrevocable by Borrower so long as the Indebtedness
remains outstanding. Notwithstanding the foregoing, until a notice is sent to
the Borrower in writing that an Event of Default (as defined below) has occurred
under the terms and conditions of the Note or any instrument constituting
security for the Note (which notice is hereafter called a "Notice"), Borrower is
granted a license to receive, collect and enjoy the rents, income and profits
accruing from the Property.
If an Event of Default shall occur , Lender may, at its option, after
service of a Notice, receive and collect all such rents, income and profits as
they become due, from the Property. Lender shall thereafter continue to receive
and collect all such rents, income and profits, until Lender shall otherwise
agree in writing. All sums received by Borrower after service of such Notice
shall be deemed received in trust and shall be immediately turned over to
Lender.
Borrower hereby irrevocably appoints Lender its true and lawful
attorney-in-fact with power of substitution and with full power for Lender in
its own name and capacity or in the name and capacity of Borrower, from and
after service of Notice, to demand, collect, receive and give complete
acquittances for any and all rents, income and profits accruing from the
Property, either in its own name or in the name of Borrower or otherwise, which
Lender may deem necessary or desirable in order to collect and enforce the
payment of the rents, income and profits and to demand, correct, receive,
endorse, and deposit all checks, drafts, money orders or notes given in payment
of such rents. Such appointment is coupled with an interest and is irrevocable.
Lender shall not be liable for or prejudiced by any loss of any note, checks,
drafts, etc., unless such loss is found by a court of competent jurisdiction to
have been due to the gross negligence or willful misconduct of Lender.
Lender shall apply the rents received from Borrower's lessees, to
accrued interest and principal under the Note. If no Event of Default remains
uncured, amounts received in excess of the aggregate monthly payment due under
the Note shall be remitted to Borrower in a timely manner. Nothing contained
herein shall be construed to constitute Lender as a mortgagee-in-possession in
absence of its physically taking possession of the Property.
Borrower also hereby irrevocably appoints Lender as its true and lawful
attorney-in-fact to appear in any state or federal bankruptcy, insolvency, or
reorganization proceeding in any state or federal court involving any of the
tenants of the Leases. Lessees of the Property are hereby expressly authorized
and directed, from and after service of a Notice to pay any and all amounts due
Borrower pursuant to the Leases to Lender or such nominee as Lender may
designate in writing delivered to and received by such lessees who are expressly
relieved of any and all duty, liability or obligation to Borrower in respect of
all payments so made.
If an Event of Default shall occur, Lender is hereby vested with full
power from and after service of a Notice to use all measures, legal and
equitable, deemed by it necessary or proper to enforce the assignment granted
hereunder and to collect the rents, income and profits assigned hereunder,
including the right of Lender or its designee, to enter upon the Property, or
any part thereof, and take possession of all or any part of the Property
together with all personal property, fixtures, documents, books, records, papers
and accounts of Borrower relating thereto, and may exclude the Borrower, its
agents and servants, wholly therefrom. Borrower hereby grants full power and
authority to Lender to exercise all rights, privileges and powers herein granted
at any and all times after service of a Notice, with full power to use and apply
all of the rents and other income herein assigned to the payment of the costs of
managing and operating the Property and of any indebtedness or liability of
Borrower to Lender, including but not limited to the payment of taxes, special
assessments, insurance premiums, damage claims, the costs of maintaining,
repairing, rebuilding and restoring the improvements on the Property or of
making the same rentable, reasonable attorneys' fees incurred in connection with
the enforcement of the assignment granted hereunder, and of principal and
interest payments due from Borrower to Lender on the Note and this Instrument,
all in such order as Lender may determine. Lender shall be under no obligation
to exercise or prosecute any of the rights or claims assigned to it hereunder or
to perform or carry out any of the obligations of the lessor under any of the
Leases and does not assume any of the liabilities in connection with or arising
or growing out of the covenants and agreements of Borrower in the leases. It is
further understood that the assignment granted hereunder shall not operate to
place responsibility for the control, care, management or repair of the
Property, or parts thereof, upon Lender, nor shall it operate to make Lender
liable for the performance of any of the terms and conditions of any of the
Leases, or for any waste of the Property by any lessee under any of the Leases
or any other person, or for any dangerous or defective condition of the Property
or for any negligence in the management, upkeep, repair or control of the
Property resulting in loss or injury or death to any lessee, licensee, employee
or stranger.
25. DEFAULT. The following shall each constitute an event of default
("Event of Default"):
(a) The occurrence of any "Event of Default," as such term is defined
in the Note; or
(b) Failure of Borrower to observe or perform any other covenant or
condition contained herein and such default shall continue for thirty (30) days
after written notice is given to Borrower specifying the nature of the failure,
or if the default cannot be cured within such applicable cure period, Borrower
fails within such time to commence and pursue curative action with reasonable
diligence or fails at any time after expiration of such applicable cure period
to continue with reasonable diligence all necessary curative actions; provided,
however, that no notice of default and no opportunity to cure shall be required
with respect to defaults under Section 17 hereof or if during the prior twelve
(12) months Lender has already sent a notice to Borrower concerning default in
performance of the same obligation; or
(c) Failure of Borrower to observe or perform any other obligation
under any other Loan Document or the Certificate And Indemnity Agreement
Regarding Hazardous Substances when such observance or performance is due, and
such failure shall continue beyond the applicable cure period set forth in such
Loan Document, or if the default cannot be cured within such applicable cure
period, Borrower fails within such time to commence and pursue curative action
with reasonable diligence or fails at any time after expiration of such
applicable cure period to continue with reasonable diligence all necessary
curative actions. No notice of default and no opportunity to cure shall be
required if during the prior twelve (12) months Lender has already sent a notice
to Borrower concerning default in performance of the same obligation.
26. RIGHTS AND REMEDIES ON DEFAULT.
26.1 Remedies. Upon the occurrence and during the continuance of any
Event of Default, Trustee or Lender may exercise any one or more of the
following rights and remedies:
(a) Lender may declare all sums secured by this Instrument immediately
due and payable, including any prepayment premium which Borrower would be
required to pay.
(b) Trustee may cause the passage of a decree for the sale of the
Property to be issued, and Borrower hereby irrevocably and unconditionally
assents to the passage of such a decree. Upon the occurrence of an Event of
Default, Borrower further authorizes and grants to the Trustee the power to sell
the Property. Any sale of the Property, whether by way of the Borrower's assent
to decree or by power of sale, shall be made in accordance with the provisions
of Md. Code Xxx., Real Prop. ss. 7-105 (1996 & Supp. 2001), as amended, and Md.
R. Civ. P. 14-201 - 14-210, as amended, or other applicable general or local
laws of the State of Maryland or judicial rules of procedure relating to the
foreclosure of deeds of trust. The terms of the sale may be cash upon settlement
of the sale or upon such other and additional terms as the Trustee deems
necessary, proper or convenient, except as specifically limited by applicable
law or court rule. Such sale may be of the entire Property as a unit or of such
parts or parcels of the entire Property as the Trustee, in its sole and absolute
discretion, deems necessary, proper, or convenient.
(c) In the event of any foreclosure, to the extent permitted by
applicable law, Lender will be entitled to a judgment which will provide that if
the foreclosure sale proceeds are insufficient to satisfy the judgment,
execution may issue for any amount by which the unpaid balance of the
obligations secured by this Instrument exceeds the net sale proceeds payable to
Lender.
(d) With respect to all or any part of the Property that constitutes
personalty, Lender shall have all rights and remedies of secured party under the
Maryland Uniform Commercial Code.
(e) Lender shall have the right to have a receiver appointed to take
possession of any or all of the Property, with the power to protect and preserve
the Property, to operate the Property preceding foreclosure or sale, to collect
all the rents and revenues from the Property and apply the proceeds, over and
above cost of the receivership, against the sums due under this Instrument, and
to exercise all of the rights with respect to the Property described in Section
24 above. The receiver may serve without bond if permitted by law. Lender's
right to the appointment of a receiver shall exist whether or not apparent value
of the Property exceeds the sums due under this Instrument by a substantial
amount. Employment by Lender shall not disqualify a person from serving as a
receiver.
(f) In the event Borrower remains in possession of the Property after
the Property is sold as provided above or Lender otherwise becomes entitled to
possession of the Property upon default of Borrower, Borrower shall become a
tenant at will of Lender or the purchaser of the Property and shall pay a
reasonable rental for use of the Property while in Borrower's possession.
(g) Trustee and Lender shall have any other right or remedy provided in
this Instrument, the Note, or any other Loan Document or instrument delivered by
Borrower in connection therewith, or available at law, in equity or otherwise.
(h) Lender shall have all the rights and remedies set forth in Sections
23 and 24.
26.2 Sale of the Property. In exercising its rights and remedies, the
Trustee or Lender may, at Lender's sole discretion, cause all or any part of the
Property to be sold as a whole or in parcels, and certain portions of the
Property may be sold without selling other portions. Lender may bid at any
public sale on all or any portion of the Property.
26.3 Notice of Sale. Lender shall give Borrower reasonable notice of
the time and place of any public sale of any personal property or of the time
after which any private sale or other intended disposition of the personal
property is to be made. Reasonable notice shall mean notice given in accordance
with applicable law, including notices given in the manner and at the times
required for notices in a nonjudicial foreclosure.
26.4 Leases. In the event of a sale of the Property under either the
power of sale or assent to decree, such sale may be made, at the option of the
Lender, subject to one or more of the tenancies entered into subsequent to the
recording of this Instrument, in accordance with the provisions of Md. Code
Xxx., Real Xxxx.xx. 7-105(f)(2) (1996 & Supp. 2001), as amended.
26.5 Waiver; Election of Remedies. A waiver by either party of a breach
of a provision of this Instrument shall not constitute a waiver of or prejudice
the party's right otherwise to demand strict compliance with that provision or
any other provision. Election by Lender to pursue any remedy shall not exclude
pursuit of any other remedy, and all remedies of Lender under this Instrument
are cumulative and not exclusive. An election to make expenditures or take
action to perform an obligation of Borrower shall not affect Lender's right to
declare a default and exercise its remedies under this Instrument.
27. RECONVEYANCE. Upon payment of all sums secured by this Instrument,
Lender shall request Trustee to reconvey the Property and shall surrender this
Instrument and all notes evidencing Indebtedness secured by this Instrument to
Trustee. Trustee shall reconvey the Property without warranty to the person or
persons legally entitled thereto. Such person or persons shall pay Trustee's
costs incurred in so reconveying the Property.
28. PROVISIONS REGARDING TRUSTEE. Trustee shall not be liable for any
error of judgment or act done by Trustee, or be otherwise responsible or
accountable under any circumstances whatsoever. Trustee shall not be personally
liable in case of entry by it or anyone acting by virtue of the powers herein
granted it upon the Property for debts contracted or liability or damages
incurred in the management or operation of the Property. All monies 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 monies (except to the extent required by law) and Trustee
shall be under no liability for interest on any monies received by it hereunder.
Trustee may resign by giving of notice of such resignation in writing
to Lender. If Trustee shall die, resign or become disqualified from acting, or
shall fail or refuse to exercise its powers hereunder when requested by Lender
so to do, or if for any reason and without cause Lender shall prefer to appoint
a substitute trustee to act instead of the original Trustee named herein, or any
prior successor or substitute trustee, Lender shall have full power to appoint a
substitute trustee and, if preferred, several substitute trustees in succession
who shall succeed to all the estate, rights, powers and duties of the aforenamed
Trustee. Upon appointment by Lender and upon recording a deed of appointment in
the land records of Baltimore County, Maryland, any new 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 the same effect as if
originally named as Trustee herein.
29. USE OF PROPERTY. The Property is not currently used for
agricultural, farming, timber or grazing purposes. Borrower warrants that this
Instrument is and will at all times constitute a commercial trust deed, as
defined under appropriate state law.
30. FUTURE ADVANCES. Upon request of Borrower, Lender, at Lender's
option so long as this Instrument secures Indebtedness held by Lender, may make
Future Advances to Borrower. Such Future Advances, with interest thereon, shall
be secured by this Instrument when evidenced by promissory notes stating that
said notes are secured hereby.
31. IMPOSITION OF TAX BY STATE.
31.1 State Taxes Covered. The following constitute state taxes to which
this Section applies:
(a) A specific tax upon trust deeds or upon all or any part of the
indebtedness secured by a trust deed.
(b) A specific tax on a grantor which the taxpayer is authorized or
required to deduct from payments on the indebtedness secured by a trust deed.
(c) A tax on a trust deed chargeable against the beneficiary or the
holder of the note secured.
(d) A specific tax on all or any portion of the indebtedness or on
payments of principal and interest made by a grantor.
31.2 Remedies. If any state tax to which this Section applies is
enacted subsequent to the date of this Instrument, this shall have the same
effect as an Event of Default, and Lender may exercise any or all of the
remedies available to it unless the following conditions are met:
(a) Borrower may lawfully pay the tax or charge imposed by state tax,
and
(b) Borrower pays the tax or charge within thirty (30) days after
written notice from Lender that the tax law has been enacted and that the tax or
charge is then due.
32. ATTORNEYS' FEES. In the event suit or action is instituted to
enforce or interpret any of the terms of this Instrument (including without
limitation efforts to modify or vacate any automatic stay or injunction), the
prevailing party shall be entitled to recover all expenses reasonably incurred
at, before and after trial and on appeal whether or not taxable as costs, or in
any bankruptcy proceeding including, without limitation, attorneys' fees,
witness fees (expert and otherwise), deposition costs, copying charges and other
expenses. Whether or not any court action is involved, all reasonable expenses,
including but not limited to the costs of searching records, obtaining title
reports, surveyor reports, title insurance, trustee fees, and other attorney
fees, incurred by Lender that are necessary at any time in Lender's opinion for
the protection of its interest or enforcement of its rights shall become a part
of the Indebtedness payable on demand and shall bear interest from the date of
expenditure until repaid at the interest rate as provided in the Note. The term
"attorneys' fees" as used in the Loan Documents shall be deemed to mean such
fees as are reasonable and are actually incurred.
33. GOVERNING LAW; SEVERABILITY. This Instrument shall be governed by
the law of the State of Maryland applicable to contracts made and to be
performed therein (excluding choice-of-law principles). In the event that any
provision or clause of this Instrument or the Note conflicts with applicable
law, such conflict shall not affect other provisions of this Instrument or the
Note which can be given effect without the conflicting provision, and to this
end the provisions of this Instrument and the Note are declared to be severable.
34. TIME OF ESSENCE. Time is of the essence of this Instrument.
35. CHANGES IN WRITING. This Instrument and any of its terms may only
be changed, waived, discharged or terminated by an instrument in writing signed
by the party against which enforcement of the change, waiver, discharge or
termination is sought. Any agreement subsequently made by Borrower or Lender
relating to this Instrument shall be superior to the rights of the holder of any
intervening lien or encumbrance.
36. NO OFFSET. Borrower's obligation to make payments and perform all
obligations, covenants and warranties under this Instrument and under the Note
shall be absolute and unconditional and shall not be affected by any
circumstance, including without limitation any setoff, counterclaim, abatement,
suspension, recoupment, deduction, defense or other right that Borrower or any
guarantor may have or claim against Lender or any entity participating in making
the loan secured hereby. The foregoing provisions of this section, however, do
not constitute a waiver of any claim or demand which Borrower or any guarantor
may have in damages or otherwise against Lender or any other person, or preclude
Borrower from maintaining a separate action thereon; provided, however, that
Borrower waives any right it may have at law or in equity to consolidate such
separate action with any action or proceeding brought by Lender.
37. WAIVER OF JURY TRIAL. THE BORROWER AND LENDER HEREBY KNOWINGLY,
VOLUNTARILY AND INTELLIGENTLY WAIVES ANY AND ALL RIGHTS THAT EACH PARTY TO THIS
INSTRUMENT MAY NOW OR HEREAFTER HAVE UNDER THE LAWS OF THE UNITED STATES OF
AMERICA OR THE STATE OF MARYLAND, TO A TRIAL BY JURY OF ANY AND ALL ISSUES
ARISING DIRECTLY OR INDIRECTLY IN ANY ACTION OR PROCEEDING RELATING TO THIS
INSTRUMENT, THE LOAN DOCUMENTS OR ANY TRANSACTIONS CONTEMPLATED THEREBY OR
RELATED THERETO. IT IS INTENDED THAT THIS WAIVER SHALL APPLY TO ANY AND ALL
DEFENSES, RIGHTS, CLAIMS AND/OR COUNTERCLAIMS IN ANY SUCH ACTION OR PROCEEDING.
BORROWER UNDERSTANDS THAT THIS WAIVER IS A WAIVER OF A CONSTITUTIONAL
SAFEGUARD, AND EACH PARTY INDIVIDUALLY BELIEVES THAT THERE ARE SUFFICIENT
ALTERNATE PROCEDURAL AND SUBSTANTIVE SAFEGUARDS, INCLUDING, A TRIAL BY AN
IMPARTIAL JUDGE, THAT ADEQUATELY OFFSET THE WAIVER CONTAINED HEREIN.
38. MAXIMUM INTEREST CHARGES. Notwithstanding anything contained herein
or in any of the Loan Documents to the contrary, in no event shall Lender be
entitled to receive interest on the loan secured by this Instrument (the "Loan")
in amounts which, when added to all of the other interest charged, paid to or
received by Lender on the Loan, causes the rate of interest on the Loan to
exceed the highest lawful rate. Borrower and Lender intend to comply with the
applicable law governing the highest lawful rate and the maximum amount of
interest payable on or in connection with the Loan. If the applicable law is
ever judicially interpreted so as to render usurious any amount called for under
the Loan Documents, or contracted for, charged, taken, reserved or received with
respect to the Loan, or if acceleration of the final maturity date of the Loan
or if any prepayment by Borrower results in Borrower having paid or demand
having been made on Borrower to pay, any interest in excess of the amount
permitted by applicable law, then all excess amounts theretofore collected by
Lender shall be credited on the principal balance of the Note (or, if the Note
has been or would thereby be paid in full, such excess amounts shall be refunded
to Borrower), and the provisions of the Note, this Instrument and any demand on
Borrower shall immediately be deemed reformed and the amounts thereafter
collectible thereunder and hereunder shall be reduced, without the necessity of
the execution of any new document, so as to comply with the applicable law, but
so as to permit the recovery of the fullest amount otherwise called for
thereunder and hereunder. The right to accelerate the final maturity date of the
Loan does not include the right to accelerate any interest which has not
otherwise accrued on the date of such acceleration, and Lender does not intend
to collect any unearned interest in the event of acceleration. All sums paid or
agreed to be paid to Lender for the use, forbearance or detention of the Loan
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread through the full term of the Loan until payment in full so
that the rate or amount of interest on account of the Loan does not exceed the
applicable usury ceiling. By execution of this Instrument, Borrower acknowledges
that it believes the Loan to be nonusurious and agrees that if, at any time,
Borrower should have reason to believe that the Loan is in fact usurious, it
will give Lender written notice of its belief and the reasons why Borrower
believes the Loan to be usurious, and Borrower agrees that Lender shall have
ninety (90) days following its receipt of such written notice in which to make
appropriate refund or other adjustment in order to correct such condition if it
in fact exists.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS
AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY
THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER
TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN
CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE
TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN
AGREEMENT.
IN WITNESS WHEREOF, Borrower has executed this Instrument or has caused
the same to be executed under seal by its representatives thereunto duly
authorized.
WITNESS/ATTEST BORROWER:
WHITE XXXXX DISTRIBUTION, LLC,
A Maryland Limited Liability Company
By: Charming Shoppes of Delaware, Inc.,
A Pennsylvania Corporation,
General Manager
________________________ By: __________________________ (SEAL)
Print: _________________ Name: __________________
Title: __________________
(ACKNOWLEDGMENT ON THE FOLLOWING PAGE)
ACKNOWLEDGMENT
STATE OF _______________, CITY/COUNTY OF ______________________, TO WIT:
I HEREBY CERTIFY that on this ____ day of _______________, 2002, before
me, the undersigned Notary Public of the State of _______________, personally
appeared _______________________, and acknowledged himself/herself to be the
_______________ of Charming Shoppes of Delaware, Inc., a Pennsylvania
corporation, which is the General Manager of WHITE XXXXX DISTRIBUTION, LLC, a
Maryland limited liability company, and that he/she, as such __________________,
being authorized so to do, executed the foregoing instrument for the purposes
therein contained by signing the name of Charming Shoppes of Delaware, Inc., the
General Manager of WHITE XXXXX DISTRIBUTION, LLC, by himself/herself as
________________.
IN WITNESS MY Hand and Notarial Seal.
___________________________________(SEAL)
NOTARY PUBLIC
My Commission Expires:
_____________________
CERTIFICATION
THIS IS TO CERTIFY that the above-stated Commercial Deed Of Trust,
Security Agreement, Assignment Of Leases And Rents And Fixture Filing was
prepared by or under the supervision of the undersigned, an attorney at law duly
admitted to practice before the Court of Appeals of Maryland.
____________________________
Xxxxx X. Xxxxx, Esquire
Exhibits:
Exhibit A - Description of Property
Exhibit B - Permitted Exceptions
Loan No. 0010499-001
EXHIBIT A
(10000 Franklin Square Drive, White Xxxxx, Maryland 21162)
Legal Description:
That certain real property in the County of Baltimore, State of
Maryland, described as follows:
BEING all that 28.7609 acres of land shown and designated as Lot 50 on a Plat
entitled "3rd Amended Plat of Portion of Section H, White Xxxxx Community",
which Plat is recorded among the Land Records of Baltimore County in Plat Book
66, Folio 140.
Loan No. 0010499-001
EXHIBIT B
(10000 Franklin Square Drive, White Xxxxx, Maryland 21162)
Permitted Exceptions:
1. Right of Way by and between Nottingham Farms, Inc. and Baltimore Gas
and Electric Company dated November 3, 1955 and recorded among the Land
Records of Baltimore County in Liber G.L.B. 2823, folio 167.
2. Terms, conditions and easements contained in a Deed by and between
Nottingham Farms, Inc. and the State of Maryland, to the use of the
State Roads Commission of Maryland dated December 9, 1966 and recorded
among the Land Records of Baltimore County in Liber O.T.G. No. 4711,
folio 436; as shown on Xxxxx Xxxxx Xxxxxxxxxx Xxxxx Xx. 00000.
3. Right of Way Easement by and between Nottingham Village, Inc. and The
Chesapeake and Potomac Telephone Company of Maryland dated October 25,
1974 and recorded among the Land Records of Baltimore County in Liber
E.H.K., Jr. No. 5488, folio 462.
4. Right of Way Agreement by and between Nottingham Village, Inc. and
Baltimore Gas and Electric Company dated July 15, 1981 and recorded
among the Land Records of Baltimore County in Liber E.H.K., Jr. No.
6317, folio 740.
5. Deed and Agreement by and between Nottingham Village, Inc., et al and
Baltimore County, Maryland dated August 11, 1993 and recorded among the
Land Records of Baltimore County in Liber S.M. No. 9956, folio 69; as
affected by Deed and Agreement and Release dated June 28, 1994 and
recorded among the aforesaid Land Records in Liber S.M. No. 10650,
folio 532, and Deed and Agreement and Release dated July 6, 1994 and
recorded among the aforesaid Land Records in Liber S.M. No. 10356,
folio 158.
6. Declaration of Covenants, Conditions and Restrictions by Nottingham
Village, Inc. dated August 3, 1994 and recorded among the Land Records
of Baltimore County in Liber S.M. No. 10684, folio 708.
7. Deed and Agreement by and between Time Warner Entertainment Company and
Baltimore County, Maryland dated March 3, 1999 and recorded among the
Land Records of Baltimore County in Liber S.M. No. 13628, folio 679.
8. Terms, conditions, easements, Notes, restrictions and other criteria as
shown on the Plat entitled, "3rd Amended Plat of Portion of H, White
Xxxxx Community", which Plat is recorded among the Land Records of
Baltimore County in Plat Book 66, folio 140.
