DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT AND FIXTURE FILING (COLLATERAL INCLUDES FIXTURES) TS MILLER CREEK, LLC, a Delaware limited liability company, Grantor to DAVID J. HARRIS, a resident of Shelby County, Tennessee,...
Exhibit 10.5
MAXIMUM PRINCIPAL INDEBTEDNESS
FOR TENNESSEE RECORDING TAX
PURPOSES: $ 26,250,000.00
DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS
AND SECURITY AGREEMENT AND FIXTURE FILING
(COLLATERAL INCLUDES FIXTURES)
XX XXXXXX CREEK, LLC, a Delaware limited liability company,
Grantor
to
XXXXX X. XXXXXX, a resident of Shelby County, Tennessee,
Trustee
for the benefit of
NEW YORK LIFE INSURANCE COMPANY,
Beneficiary
Dated as of: January 21, 2014
Premises: | Xxxxxx Creek Apartments |
0000 Xxxxxxxx Xxxxx Xxxxx, Xxxxxxx, Xxxxxx Xxxxxx, XX 00000
This instrument prepared by (in consultation
with Tennessee counsel) and Record And Return To:
Xxxxxx Xxxxxxx Xxxxxxxxx & Xxxx, LLP
Xxx Xxxx Xxxxxx Xxxxxx
Winston-Salem, NC 27101
Attn: Xxxxxx X. Xxxxxx, Esq.
Pursuant to Tennessee Code Annotated Section 00-00-000, notice is hereby given that this Deed of Trust secures future advances, all or some of which shall be obligatory, and all advances hereunder will be for commercial purposes. The priority of all advances made under this Instrument relates back to the time of the initial recording of this Instrument and the lien of all such future advances is prior and superior to the lien of any encumbrance or conveyance arising or recorded subsequent to the recording of this Instrument.
WCSR 31223371 | i | Deed of Trust Loan No. 374-0518 |
SOURCE OF GRANTORβS INTEREST: DEED DATED ________________, 2014 AND RECORDED IN DEED BOOK ________, PAGE _______ IN THE REGISTERβS OFFICE OF SHELBY COUNTY, TENNESSEE.
It is understood that some of the property described herein includes goods that are or are to become fixtures related to the real estate described herein, and it is intended that, as to those goods, this deed of trust shall be effective as a financing statement filed as a fixture filing from the date of its filing for record in the Registerβs Office of Shelby County, Tennessee in accordance with Tennessee Code Annotated Section 47-9-502.
THIS INSTRUMENT IS TO BE FILED AND INDEXED IN THE REAL ESTATE RECORDS AND IS ALSO TO BE INDEXED IN THE INDEX OF FINANCING STATEMENTS UNDER THE NAMES OF GRANTOR, AS βDEBTORβ, AND BENEFICIARY, AS βSECURED PARTY.β
The Beneficiary, as holder of the debt secured hereby, provides that it does not and will not give its consent to any mechanicsβ and/or materialmenβs liens having priority over the lien created by this instrument.
THIS INSTRUMENT AFFECTS REAL AND PERSONAL PROPERTY SITUATED IN THE STATE OF TENNESSEE COUNTY OF SHELBY, KNOWN BY THE STREET ADDRESS OF 0000 XXXXXXXX XXXXX XXXXX, XXXXXXX, XXXXXX XXXXXX, XX 00000.
WCSR 31223371 | ii | Deed of Trust Loan No. 374-0518 |
TABLE OF CONTENTS
DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT AND FIXTURE FILING | 1 |
GRANTING CLAUSES | 1 |
DEFINITIONS AND INTERPRETATION | 5 |
ARTICLE I COVENANTS AND AGREEMENTS | 10 |
1.01 | Payment, Performance and Security | 10 |
1.02 | Payment of Taxes, Assessments, etc. | 10 |
A. | Impositions | 10 | |
B. | Installments | 11 | |
C. | Receipts | 11 | |
D. | Evidence of Payment | 11 | |
E. | Payment by Beneficiary | 11 | |
F. | Change in Law | 11 | |
G. | Joint Assessment | 12 | |
H. | Permitted Contests | 12 | |
I. | No Lease Default | 12 |
1.03 | Insurance | 13 |
A. | All Risk Coverage | 13 | |
B. | Additional Coverage | 13 | |
C. | Separate Insurance | 14 | |
D. | Insurers; Policies | 14 | |
E. | Beneficiary's Right to Secure Coverage | 15 | |
F. | Damage or Destruction | 15 | |
G. | Transfer of Interest in Policies | 16 | |
X. | Xxxxxxx's Use of Proceeds | 16 |
1.04 | Escrow Payments | 18 |
1.05 | Care and Use of the Premises | 18 |
WCSR 31223371 | i | Deed of Trust Loan No. 374-0518 |
A. | Maintenance and Repairs | 18 | |
B. | Standard of Repairs | 19 | |
C. | Removal of Equipment | 19 | |
D. | Compliance With Laws and Insurance | 19 | |
E. | Hazardous Materials | 19 | |
F. | Compliance With Instruments of Record | 22 | |
G. | Alteration of Secured Property | 22 | |
H. | Parking | 22 | |
I. | Entry on Secured Property | 22 | |
J. | No Consent to Alterations or Repairs | 22 | |
K. | Preservation of Lien; Mechanic's Liens | 23 | |
L. | Use of Secured Property by Grantor | 23 | |
M. | Use of Secured Property by Public | 23 | |
N. | Management | 23 | |
O. | Permitted Contests | 23 |
1.06 | Financial Information | 24 |
A. | Financial Statements | 24 | |
B. | Right to Inspect Books and Records | 24 |
1.07 | Condemnation | 25 |
X. | Xxxxxxxxxxx's Right to Participate in Proceedings | 25 | |
B. | Application of Condemnation Award | 25 | |
C. | Reimbursement of Costs | 26 | |
D. | Existing Obligations | 26 |
1.08 | Leases | 27 |
A. | Performance of Lessor's Covenants | 27 | |
B. | Notice of Default | 27 | |
C. | Representations Regarding Leases | 27 | |
D. | Covenants Regarding Leases | 28 | |
E. | Application of Rents | 29 | |
F. | Indemnity Against Unapproved Lease Modifications and Amendment | 29 |
1.09 | Assignment of Leases, Rents, Income, Profits and Cash Collateral | 30 |
A. | Assignment; Discharge of Obligations | 30 |
WCSR 31223371 | ii | Deed of Trust Loan No. 374-0518 |
B. | Entry Onto Secured Property; Lease of Secured Property | 30 | |
C. | License to Manage Secured Property | 30 | |
X. | Xxxxxxxx of Assignments | 31 | |
E. | Indemnity | 31 |
1.10. | Further Assurances | 31 |
A. | General; Appointment of Attorney-in-Fact | 31 | |
B. | Statement Regarding Obligations | 31 | |
C. | Additional Security Instruments | 32 | |
D. | Security Agreement | 32 | |
E. | Preservation of Grantor's Existence | 33 | |
F. | Further Indemnities | 33 | |
G. | Absence of Insurance | 34 |
1.11 | Prohibition on Transfers, Liens or Further Encumbrances | 34 |
A. | Continuing Ownership and Management | 34 | |
B. | Prohibition on Transfers, Liens or Further Encumbrances | 34 | |
C. | Acceleration of Obligations | 35 |
1.12 | Expenses | 35 |
ARTICLE II REPRESENTATIONS AND WARRANTIES | 36 | |
2.01 | Warranty of Title | 36 |
2.02 | Ownership Of Additional or Replacement Improvements and Personal Property | 36 |
2.03 | No Pending Material Litigation or Proceeding; No Hazardous Materials | 36 |
A. | Proceedings Affecting Grantor | 36 | |
B. | Proceedings Affecting Secured Property | 37 | |
C. | No Hazardous Material | 37 | |
D. | No Litigation Regarding Hazardous Material | 37 |
2.04 | Valid Organization, Good Standing and Qualification of Grantor; Other Organizational Information | 38 |
2.05 | Authorization; No Legal Restrictions on Performance | 38 |
2.06 | Compliance With Laws | 39 |
2.07 | Tax Status | 39 |
2.08 | Absence of Foreign or Enemy Status; Absence of Blocked Persons; Foreign Corrupt Practices Act | 39 |
WCSR 31223371 | iii | Deed of Trust Loan No. 374-0518 |
2.09 | Federal Reserve Board Regulations | 40 |
2.10 | Investment Company Act and Public Utility Holding Company Act | 40 |
2.11 | Exempt Status of Transactions Under Securities Act and Representations Relating Thereto | 40 |
2.12 | ERISA | 40 |
ARTICLE III DEFAULTS | 41 | |
3.01 | Events of Default | 41 |
ARTICLE IV REMEDIES | 43 | |
4.01 | Acceleration, Foreclosure, etc. | 43 |
A. | Foreclosure | 43 | |
B. | Partial Foreclosure | 43 | |
C. | Entry | 44 | |
D. | Collection of Rents, etc. | 44 | |
E. | Receivership | 44 | |
F. | Specific Performance | 44 | |
G. | Recovery of Sums Required To Be Paid | 45 | |
H. | Other Remedies | 45 | |
I. | State Specific Remedies | 45 |
4.02 | No Election of Remedies | 45 |
4.03 | Beneficiary's Right to Release, etc. | 45 |
4.04 | Beneficiary's Right to Remedy Defaults, etc. | 46 |
4.05 | Waivers | 46 |
4.06 | Prepayment | 47 |
ARTICLE V | MISCELLANEOUS | 48 |
5.01 | Non-Waiver | 48 |
5.02 | Sole Discretion of Beneficiary | 48 |
5.03 | Legal Tender | 48 |
5.04 | No Merger or Termination | 48 |
5.05 | Discontinuance of Actions | 49 |
5.06 | Headings | 49 |
WCSR 31223371 | iv | Deed of Trust Loan No. 374-0518 |
5.07 | Notice to Parties | 49 |
5.08 | Successors and Assigns Included In Parties | 50 |
5.09 | Changes and Modifications | 50 |
5.10 | Applicable Law | 50 |
5.11 | Invalid Provisions to Affect No Others | 50 |
5.12 | Usury Savings Clause | 50 |
5.13 | No Statute of Limitations | 51 |
5.14 | Late Charges | 51 |
5.15 | Waiver of Jury Trial | 51 |
5.16 | Continuing Effectiveness | 51 |
5.17 | Time of Essence | 51 |
5.18 | Non-Recourse | 51 |
5.19 | Non-Business Days | 54 |
5.20 | Single Purpose Entity | 54 |
ARTICLE VI SPECIAL STATE PROVISIONS | 59 | |
6.01 | Maturity Date | 59 |
6.02 | Attorneysβ Fees | 60 |
6.03 | Interest Before and After Judgment | 60 |
6.04 | Power of Sale | 61 |
6.05 | Environmental Laws | 61 |
6.06 | Substitution of Trustee | 62 |
6.07 | Waiver of Redemption Rights, Exemptions, Etc. | 62 |
6.08 | Deed of Trust as Financing Statement | 62 |
6.09 | Security Agreement | 63 |
WCSR 31223371 | v | Deed of Trust Loan No. 374-0518 |
DEED OF TRUST, ASSIGNMENT OF LEASES AND
RENTS
AND SECURITY AGREEMENT AND FIXTURE FILING
(Collateral Includes Fixtures)
DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT AND FIXTURE FILING ("Deed of Trust"), dated as of the date set forth on the cover page hereof, from XX XXXXXX CREEK, LLC ("Grantor"), a Delaware limited liability company, having an office at 00000 Xxxx Xxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000, Attn: Xxxxxxx Xxxx, to XXXXX X. XXXXXX, a resident of Shelby County, Tennessee, having an address of c/o Xxxxx, Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000 (βTrusteeβ), as trustee for the benefit of NEW YORK LIFE INSURANCE COMPANY ("Beneficiary"), a New York mutual insurance company, having an office at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000.
Grantor has executed and delivered to Beneficiary a Promissory Note (the promissory note, together with all extensions, renewals or modifications thereof, being hereinafter collectively called the "Note"), dated as of even date herewith, payable to the order of Beneficiary in the original principal sum of Twenty-Six Million Two Hundred Fifty Thousand and No/100 Dollars ($26,250,000.00), lawful money of the United States of America. The Note is secured by this Deed of Trust and the terms, covenants and conditions of the Note are hereby incorporated herein and made a part hereof.
In consideration of the sum of Ten Dollars ($10.00) paid and other good and lawful consideration, the receipt and sufficiency of which are hereby acknowledged and in order to secure the Obligations (as hereinafter defined), Grantor hereby irrevocably grants, bargains, sells, assigns, transfers and conveys to Trustee, its successors and assigns, in fee simple forever, IN TRUST, WITH POWER OF SALE, the following property and rights, whether now owned or held or hereafter acquired and Grantor further grants to Trustee a security interest in the following property:
GRANTING CLAUSE ONE
All that tract or parcel of land ("Land") more particularly described in Exhibit A hereto.
WCSR 31223371 | 1 | Deed of Trust Loan No. 374-0518 |
GRANTING CLAUSE TWO
All buildings, structures and improvements (collectively, "Improvements") now or hereafter located on the Land, including, but not limited to, all of Grantorβs right, title and interest in and to all machinery, apparatus, equipment and fixtures attached to, or used or procured for use in connection with the operation or maintenance of, any Improvement, all refrigerators, shades, awnings, venetian blinds, screens, screen doors, storm doors, storm windows, stoves, ranges, dishwashers, curtain fixtures, partitions, attached floor coverings and fixtures, apparatus, equipment or articles used to supply sprinkler protection and waste removal, laundry equipment, furniture, furnishings, appliances, office equipment, elevators, escalators, tanks, dynamos, motors, generators, switchboards, communication equipment, electrical equipment, television and radio systems, heating, plumbing, lifting and ventilating apparatus, air-cooling and air conditioning apparatus, gas and electric fixtures, fittings and machinery and all other personal property and equipment of every kind and description, excluding trade fixtures and personal property of any Lessee (as hereinafter defined), unless such trade fixtures or personal property become the property of Grantor upon expiration or termination of the term of the Lease in question, and all accessions, renewals and replacements thereof and all articles in substitution therefor. Whether or not any of the foregoing are attached to the Land or any of the Improvements in any manner, all such items shall be deemed to be fixtures, part of the real estate and security for the Obligations. The Land and Improvements are herein collectively called "Premises". To the extent any of the Improvements are not deemed real estate under the laws of the State, they shall be deemed personal property and this grant shall include all of Grantor's right, title and interest in, under and to such personal property and all other personal property now or hereafter attached to or located upon the Premises or used or useable in the management, maintenance or operation of the Improvements or the activities conducted on the Premises, including, but not limited to, all computer hardware and software, but excluding trade fixtures and personal property of any Lessee, unless such personal property becomes the property of Grantor upon expiration or termination of the Lease in question, and all accessions, renewals and replacements thereof and all articles in substitution therefor (collectively, βPersonal Propertyβ).
GRANTING CLAUSE THREE
All now or hereafter existing easements and rights-of-way and all right, title and interest of Grantor, in and to any land lying within the right-of-way of any street, opened or proposed, adjoining the Premises, any and all sidewalks, alleys and strips and gores of land, streets, ways, passages, sewer rights, waters, water courses, water rights and powers, estates, rights, titles, interests, privileges, liberties, tenements, hereditaments, air rights, development rights, covenants, conditions, restrictions, credits and appurtenances of any nature whatsoever, in any way belonging, relating or pertaining to, or above or below the Premises, whether now or hereafter existing.
GRANTING CLAUSE FOUR
All intangible rights, interests and properties of Grantor relating to the Premises or any part thereof, and necessary or desirable for the continued ownership, use, operation, leasing or management thereof, whether now or hereafter existing, including, but not limited to, any trademarks, servicemarks, logos or trade names relating to the Premises or by which the Premises or any part thereof may be known and any other franchises or other agreements relating to services in connection with the use, occupancy, or maintenance of the Premises, instruments, actions or rights in action and all intangible property and rights relating to the Premises.
GRANTING CLAUSE FIVE
All accounts receivable, insurance policies, contract rights, interests, rights under all oil, gas and mineral leases and agreements and all benefits arising therefrom, and all other claims, both at law and in equity, relating to the Premises, which Grantor now has or may hereafter acquire.
WCSR 31223371 | 2 | Deed of Trust Loan No. 374-0518 |
GRANTING CLAUSE SIX
All estate, interest, right, title and other claim or demand which Grantor now has or may hereafter acquire in any and all awards or payments relating to the taking by eminent domain, or by any proceeding or purchase in lieu thereof, of the whole or any part of the Premises, including, but not limited to, all awards resulting from a change of grade of any street and awards for severance damages, together, in all cases, with all interest thereon.
GRANTING CLAUSE SEVEN
All proceeds of, and any unearned premiums on, insurance policies covering all or any part of the Premises, including, but not limited to, the right to receive and apply the proceeds of all insurance or judgments related to the Premises, or settlements made in lieu thereof.
GRANTING CLAUSE EIGHT
All estate, interest, right, title and other claim or demand which Grantor now has or may hereafter acquire against anyone with respect to any damage to all or any part of the Premises, including, but not limited to, damage arising or resulting from any defect in or with respect to the design or construction of all or any part of the Improvements.
GRANTING CLAUSE NINE
All deposits or other security or advance payments, including, but not limited to, rental payments, made by or on behalf of Grantor to others in connection with the Obligations or the ownership or operation of all or any part of the Premises, including, but not limited to, any such deposits or payments made with respect to (a) Impositions (as hereinafter defined),(b) insurance policies, (c) utility service, (d) cleaning, maintenance, repair or similar services, (e) refuse removal or sewer service, (f) rental of equipment, if any, used by or on behalf of Grantor, and (g) parking or similar services or rights.
GRANTING CLAUSE TEN
All remainders, reversions or other estates in the Premises or any part thereof.
GRANTING CLAUSE ELEVEN
All management contracts, permits, certificates, licenses, approvals, contracts, entitlements and authorizations, however characterized, now or hereafter issued or in any way furnished for the acquisition, construction, development, operation and/or use of the Land, the Improvements or the Leases, including, but not limited to, building permits, environmental certificates, licenses, certificates of operation or occupancy, warranties and guaranties, except, in each case, to the extent that such mortgage, grant, assignment, transfer or pledge is restricted by the terms of such management contract, permit, certificate, license, approval, contract, entitlement or authorization and such restriction is enforceable under applicable law.
WCSR 31223371 | 3 | Deed of Trust Loan No. 374-0518 |
GRANTING CLAUSE TWELVE
All right, title and interest of Grantor in and to (1) all Leases and all other tenancies, occupancies, subleases, franchises and concessions of the Land or Improvements or which in any way affect the use or occupancy of all or any part of the Land or Improvements, and any other agreements affecting the use and occupancy of all or any part of the Land or Improvements, in each case, whether now or hereafter existing, and all right, title and interest of Grantor thereunder, including all rights to all security or other deposits, (2) all guarantees of the obligations of any lessee, licensee or other similar party under any of the foregoing, whether now or hereafter existing, and (3) the Rents, regardless of whether the Rents accrue before or after foreclosure or during the full period of redemption.
GRANTING CLAUSE THIRTEEN
All right, title and interest of Grantor in and to all options to purchase the Premises or any portion thereof or interest therein or in and to any greater estate in the Premises owned or hereafter acquired by Grantor and the right to exercise the benefits of any options or rights of first refusal, to give consents and to receive monies payable to Grantor thereunder and in connection therewith.
GRANTING CLAUSE FOURTEEN
All right, title and interest of Grantor in and to all easements, roads, streets, ways, sidewalks, alleys, passages, sewer rights, other utility rights, encroachment rights, and all estates, rights, titles, interests, privileges, liberties, tenements, hereditaments, air rights, and appurtenances of any nature whatsoever, in any way belonging, relating or pertaining to, or arising under easement agreements, declarations, reciprocal easement agreements or other instruments, benefitting the Land or Improvements whether now or hereafter existing.
GRANTING CLAUSE FIFTEEN
All proceeds, products, replacements, additions, substitutions, renewals and accessions of any of the foregoing, including, but not limited to, personal property acquired with cash proceeds.
WITH RESPECT to any portion of the Secured Property (as hereinafter defined) which is not real estate under the laws of the State in which the Secured Property is located, Grantor hereby grants a security interest in the same to Beneficiary for the purposes set forth hereunder and the references above to Trustee shall be deemed to also include Beneficiary with respect to such portion of the Secured Property and Beneficiary shall also be vested with all rights, power and authority granted hereunder or by law to Trustee with respect thereto.
TO HAVE AND TO HOLD the above granted and described Secured Property unto and to the use and benefit of Trustee and its successors and assigns in fee simple forever for the benefit of Beneficiary and the successors and assigns of Beneficiary forever.
WCSR 31223371 | 4 | Deed of Trust Loan No. 374-0518 |
IN TRUST, WITH POWER OF SALE, to secure the payment and performance to Beneficiary of the Obligations at the time and in the manner provided for its payment and performance in the Note, this Deed of Trust and in the other Obligations;
PROVIDED, HOWEVER, these presents are upon the express condition, if Grantor shall well and truly pay and perform to Beneficiary the Obligations at the time and in the manner provided in the Note, this Deed of Trust and in the other Obligations and shall well and truly abide by and comply with each and every covenant and condition set forth herein, in the Note, the Obligations and in the other Loan Instruments, then this Deed of Trust shall be released and cancelled of record;
DEFINITIONS AND INTERPRETATION
As used in this Deed of Trust, the following terms shall have the meanings specified below:
βAcceptable Delaware LLCβ means a limited liability company formed under Delaware law which (a) has at least one springing member, which, upon the dissolution of all of the members of the limited liability company or the withdrawal or the disassociation of all of the members from the limited liability company, shall immediately become the sole member of such limited liability company, and (b) otherwise meets Beneficiaryβs criteria applicable to such entities.
"Assignment" shall mean the Assignment of Leases, Rents, Income and Cash Collateral, dated as of the date hereof, from Grantor, as assignor, to Beneficiary, as assignee.
"Beneficiary's Architect" shall mean a licensed architect or registered engineer approved by Beneficiary.
"Code" shall mean the Uniform Commercial Code of the State.
"Condemnation Proceedings" shall have the meaning set forth in Section 1.07A.
"Debt Coverage Ratio" shall mean, for any period, a fraction, the numerator of which shall equal the projected net operating income of the Secured Property for such period less a replacement reserve amount equal to $250 per unit per year, and the denominator of which shall equal the aggregate of the principal and interest for such period utilizing a thirty (30) year amortization schedule. Such calculation shall be as determined by Beneficiary.
βEnvironmental Claimβ shall mean any asserted claim or demand, of any kind or nature, by any Person, for any actual or alleged Environmental Damage, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute, ordinance or regulation, common law or otherwise.
"Environmental Damage" shall mean any and all claims, judgments, damages (including consequential and punitive damages), losses, penalties, interest, fines, liabilities (including strict liability), obligations, responsibilities, encumbrances, liens, costs and expenses, of whatever kind or nature, contingent or otherwise, matured or unmatured, foreseeable or unforeseeable, including attorneysβ, expertsβ and consultantsβ fees and disbursements, including: |
WCSR 31223371 | 5 | Deed of Trust Loan No. 374-0518 |
(a) | those relating to any investigation, defense or settlement of any claim, suit, administrative proceeding or investigation of any kind or any directive of any Governmental Agency (as hereinafter defined); |
(b) | those relating to damages for personal injury, or injury to property including natural resources, occurring in, on, under or about the Secured Property, including lost profits and the cost of demolition and rebuilding of any improvements on real property; |
(c) | diminution in the value of the Secured Property, and damages for the loss, or restriction on the use or adverse impact on the marketing, of the Secured Property or any part thereof; |
(d) | loss of the priority of the lien of this Deed of Trust due to the imposition of a lien against the Secured Property; and |
(e) | those incurred in connection with the investigation, cleanup, remediation, removal, abatement, containment, closure, restoration, monitoring work or other cure of any violation of an Environmental Requirement required by any Governmental Agency or reasonably necessary to make full economic use of the Secured Property or in connection with any other property, including the performance of any pre-remedial studies and investigations and post remedial monitoring and cure, or any action to prevent a Release or threat of Release or to minimize the further Release of any Hazardous Material so it does not migrate or endanger or threaten to endanger public health or the environment. |
βEnvironmental Requirementsβ shall mean any and all Legal Requirements (as hereinafter defined) relating to the protection of the environment, health or safety, including:
(a) | all Legal Requirements pertaining to reporting, licensing, permitting, investigation, remediation or removal of, or pertaining to Releases or threatened Releases of, Hazardous Materials, chemical substances, pollutants, contaminants or hazardous or toxic substances, materials or wastes, whether solid, liquid or gaseous in nature, including Releases or threatened Releases into the air, soil, surface water, ground water or land; |
(b) | all Legal Requirements pertaining to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, chemical substances, pollutants, contaminants or hazardous or toxic substances, materials or wastes, whether solid, liquid or gaseous in nature; and |
WCSR 31223371 | 6 | Deed of Trust Loan No. 374-0518 |
(c) | all Legal Requirements pertaining to industrial hygiene or the protection of the health and safety of employees or the public. |
"ERISA" shall have the meaning set forth in Section 2.12.
"Event of Default" shall have the meaning set forth in Section 3.01.
"Governmental Agency" shall mean any government, quasi-governmental or government sponsored enterprise, legislative body, commission, board, regulatory authority, bureau, administrative or other agency, court, arbitrator, grand jury or any other public body or entity or instrumentality, whether domestic, foreign, federal, state, county or municipal.
"Guarantor," shall mean any guarantor of all or any portion of the Obligations and any indemnitor (other than Grantor) under the Environmental Indemnity Agreement of even date herewith, executed by Xxxxxxx and such indemnitor in favor of Beneficiary or any subsequent Environmental Indemnity Agreement or similar agreement executed by Grantor and an indemnitor in favor of Beneficiary and such term shall include, without limitation, the Limited Guarantor (as hereinafter defined).
"Hazardous Materials" shall mean any substance:
(a) | the presence of which requires notification, investigation or remediation under any Environmental Requirement; |
(b) | which is or becomes designated, defined, classified or regulated as "hazardous", "toxic", "noxious", "waste", "pollutant", "contaminant" or other similar term, or which requires remediation or is regulated under any present or future Environmental Requirement, including the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Section 9601 et seq.), Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), Federal Clean Air Act (42 U.S.C. Section 7401 et seq.), Federal Hazardous Materials Transportation Act (49 U.S.C. Section 5101 et seq.), Federal Clean Water Act (33 U.S.C. Section 1251 et seq.), Federal Environmental Pesticide Control Act (7 U.S.C. Section 136 et seq.), Federal Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.), Federal Safe Drinking Water Act (42 U.S.C. Sections 300(f), et seq.), and the State Environmental Laws described in the Special State Provisions of Article VI below; |
(c) | which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous and is or becomes regulated by any Governmental Agency; |
WCSR 31223371 | 7 | Deed of Trust Loan No. 374-0518 |
(d) | the presence of which on the Secured Property causes or threatens to cause a nuisance relating to the Secured Property or adjacent properties or poses or threatens to pose a hazard relating to the Secured Property or adjacent properties or to the health or safety of Persons on or about the Secured Property or adjacent properties; |
(e) | which contains asbestos, gasoline, diesel fuel or other petroleum hydrocarbons, volatile organic compounds, polychlorinated biphenyls (PCBs) or urea formaldehyde foam insulation; |
(f) | which contains or emits radioactive particles, waves or material, including radon gas; |
(g) | which is or constitutes a part of an underground storage tank; or |
(h) | which is or contains mold, mildew, fungi, bacteria or other microbial matter which poses a threat to human health or the environment. |
"Hazardous Material Claims" shall have the meaning set forth in Section 1.05E(4).
"Impositions" shall have the meaning set forth in Section 1.02A.
"Improvements" shall have the meaning set forth in Granting Clause Two.
"Increased Rate" shall have the meaning set forth in the Note.
βIndemnified Claimsβ shall have the meaning set forth in Section 1.05E(1).
"Land" shall have the meaning set forth in Granting Clause One.
"Lease" and "Leases" shall have the respective meanings set forth in Section 1.08A.
"Legal Requirements" shall mean all present or future laws, statutes, permits, approvals, plans, authorizations, guidelines, franchises, ordinances, restrictions, orders, rules, codes, regulations, judgments, decrees, injunctions or requirements of all Governmental Agencies or any officers thereof, including any Board of Fire Underwriters.
"Lessee" shall have the meaning set forth in Section 1.08A.
βLimited Guarantorβ shall mean collectively, Trade Street Operating Partnership, LP and Trade Street Residential, Inc.
"Loan" shall mean the mortgage loan evidenced by the Note and secured by this Deed of Trust.
WCSR 31223371 | 8 | Deed of Trust Loan No. 374-0518 |
"Loan Instruments" shall mean the Note, this Deed of Trust, the Assignment and each other instrument now or hereafter given to evidence, secure, indemnify, guaranty or otherwise assure or provide for the payment or performance of the Obligations or otherwise executed in connection with the Loan by Grantor, Guarantor or any other Person liable for any of the Obligations.
βMake-Whole Amountβ shall have the meaning set forth in the Note.
"Maturity Date" shall have the meaning set forth in the Note and which is also reflected in Article VI hereof.
βNon-Recourse Exceptionsβ shall have the meaning set forth in Section 5.18.
"Note" shall have the meaning set forth in the second introductory paragraph of this Deed of Trust.
"Obligations" shall mean and include all indebtedness, obligations, covenants, agreements and liabilities of Grantor to Beneficiary, including all obligations to pay interest, the Make-Whole Amount and all charges and advances, whether direct or indirect, existing, future, contingent or otherwise, due or to become due, pursuant to or arising out of or in connection with the Note, this Deed of Trust, the Assignment or any other Loan Instrument, all modifications, extensions and renewals of any of the foregoing and all expenses and costs of collection or enforcement, including reasonable attorneys' fees and disbursements incurred by Beneficiary in the collection or enforcement of any of the Loan Instruments or in the exercise of any rights or remedies pursuant to the Loan Instruments or applicable law.
"Partial Foreclosure" shall have the meaning set forth in Section 4.01B.
"Person" shall mean a corporation, a limited or general partnership, a limited liability company or partnership, a joint stock company, a joint venture, a trust, an unincorporated association, a Governmental Agency, an individual or any other entity similar to any of the foregoing.
"Personal Property" shall have the meaning set forth in Granting Clause Two.
"Premises" shall have the meaning set forth in Granting Clause Two.
"Proceeds" shall have the meaning set forth in Section 1.03F(2).
"Rents" shall mean all rents, issues, profits, cash collateral, royalties, income and other benefits derived from the Secured Property or any part thereof, including, without limitation, benefits accruing from all present and future leases and agreements, including, without limitation, oil, gas and mineral leases and agreements.
"Rent Roll" shall mean the rent roll for the Secured Property attached to the Rent Roll Certification.
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"Rent Roll Certification" shall mean the certification dated of even date executed by Grantor in favor of Beneficiary certifying facts with respect to the Rent Roll.
βReleaseβ shall mean any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration into the environment.
"Reserve Deposit Agreement" shall mean that certain Reserve Deposit Agreement of even date herewith between Beneficiary and Grantor, as amended from time to time.
"Secured Property" shall mean the Premises, the Personal Property and all other rights and interests described in the Granting Clauses of this Deed of Trust.
"State" shall mean the State, Commonwealth or territory in which the Land is located.
"Transfer" shall have the meaning set forth in Section 1.11B.
As used in this Deed of Trust (a) words such as "herein", "hereof", "hereto", "hereunder" and "hereby" or similar terms refer to this Deed of Trust as a whole and not to any specific Section or provision hereof; (b) wherever the singular or plural number or the masculine, feminine or neuter gender is used, it shall include each other number or gender; and (c) the word "including" shall mean "including, without limitation," and the word "includes" shall mean "includes, without limitation.β
ARTICLE I
COVENANTS AND AGREEMENTS
Grantor hereby covenants and agrees as follows:
1.01 Payment, Performance and Security. Grantor shall pay when due the amount of, and otherwise timely perform, all Obligations.
This Deed of Trust shall secure all Obligations.
1.02 Payment of Taxes, Assessments, etc.
1.02A. Impositions. Grantor shall pay prior to delinquency, before any fine, penalty, interest or cost for the nonpayment thereof may be added thereto, and without any right of offset or credit against any interest or other amounts payable to Beneficiary pursuant to this Deed of Trust or on the Note, all taxes, assessments, water and sewer rents, rates and charges, transit taxes, charges for public utilities, excises, levies, vault taxes or charges, license and permit fees and other governmental charges, general and special, ordinary and extraordinary, unforeseen and foreseen, of any kind and nature whatsoever (including penalties, interest costs and charges accrued or accumulated thereon), which at any time may be assessed, levied, confirmed, imposed upon, or become due and payable out of or in respect to, or become a lien on, the Secured Property or any part thereof, or any appurtenance thereto (all of the foregoing collectively, "Impositions" and individually, an "Imposition").
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1.02B. Installments. Notwithstanding anything to the contrary contained in Section 1.02A , if by law any Imposition, at the option of the taxpayer, may be paid in installments, and provided interest shall not accrue on the unpaid balance of such Impositions, Grantor may exercise the option to pay the same in installments and, in such event, shall pay such installments as the same become due and before any fine, penalty, interest or cost may be added thereto.
1.02D. Evidence of Payment. The bill, certificate or advice of nonpayment, issued by the appropriate official (designated by law either to make or issue the same or to receive payment of any Imposition), of the nonpayment of an Imposition shall be prima facie evidence that such Imposition is due and unpaid at the time of the making or issuance of such certificate, advice or bill. Grantor shall pay Beneficiary, on demand, all charges, costs and expenses of every kind including each tax service search fee or charge incurred by Beneficiary at any time or times during the term of this Deed of Trust in connection with obtaining evidence satisfactory to Beneficiary that the payment of all Impositions is current and that there is no Imposition due and owing or which has become or given rise to a lien on the Secured Property or any part thereof or any appurtenance thereto.
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1.03 Insurance.
1.03A. All Risk Coverage.
(1) Grantor, at its sole cost and expense, shall keep the Improvements and the Personal Property insured against loss or damage by fire and against loss or damage by other risks now covered by All Risk" or βSpecial Perils insurance, in form and substance satisfactory to Beneficiary. Such All Risk or Special Perils insurance shall cover acts of terrorism (both foreign and domestic) (βTerrorism Insuranceβ). If any of the Terrorism Insurance is obtained through a separate insurance policy rather than as part of an All Risk or Special Perils policy, the requirements set forth herein with respect to All Risk or Special Perils insurance, nevertheless, shall be deemed to apply to any such insurance provided in a separate policy.
(2) The All Risk or Special Perils insurance shall be in an amount equal to at least one hundred percent (100%) of the full replacement cost of the Improvements and the Personal Property, including work performed for tenants, without deduction for depreciation. The "All Risk" or βSpecial Perils insuranceβ shall include coverage for law and ordinance, demolition and increased cost of construction and an agreed amount endorsement for the estimated replacement cost.
(3) The All Risk or Special Perils insurance shall include rent and/or business income interruption insurance coverage, including coverage for rental loss (a) of not less than twenty-four (24) months of aggregate rentals or (b) Actual Loss Sustained, with no time element restrictions, and in the case of the coverage described in the preceding clause (a) or clause (b), an Extended Period of Indemnity of not less than twelve (12) months. The rental loss coverage with respect to each Lease shall include all Rent payable thereunder, including minimum rent, escalation charges, percentage rent and all other additional rent of every kind and any other amounts payable by tenants or other occupants, from time to time, at the Secured Property pursuant to Leases or otherwise.
1.03B. Additional Coverage. Grantor, at its sole cost and expense, shall at all times also maintain:
(1) Commercial general liability insurance against claims for bodily injury, personal injury or property damage, occurring in, on, under or about the Secured Property or in, on, under or about the adjoining streets, sidewalks and passageways; such insurance to be in amounts and in form and substance satisfactory to Beneficiary;
(2) If the Improvements are located in a flood hazard area, flood insurance on the Improvements and the Personal Property, in an amount equal to one hundred percent (100%) of the full replacement cost of the Improvements and the Personal Property, including work performed for tenants, without deduction for depreciation;
(3) Insurance, in such amounts as Beneficiary shall from time to time require, against loss or damage from leakage or explosion of steam boilers, air conditioning equipment, pressure vessels or similar apparatus, now or hereafter installed in or on the Secured Property; and
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(4) Such other insurance and any replacements, substitutions or additions thereto as shall at any time be required by Beneficiary against other insurable hazards, including war risk, terrorism, nuclear reaction or radioactive contamination, each in such amount as Beneficiary shall determine.
1.03D. Insurers; Policies.
(1) All insurance provided for in this Section 1.03 shall be effected under valid and enforceable policies issued by financially responsible insurers, rated by A.M. Best as βAβ or better and as having a class size of at least βX(10)β and authorized to do business in the State, with deductibles acceptable to Beneficiary and otherwise in form and substance acceptable to Beneficiary. An original copy of all such policies shall be deposited with and held by Beneficiary and shall contain the standard non-contributory mortgagee clause in favor of Beneficiary and a waiver of subrogation endorsement, all in form and content satisfactory to Beneficiary. All such policies shall contain a provision that such policies will not be cancelled or materially amended (including any reduction in the scope or limits of coverage), without at least thirty (30) days' prior written notice to Beneficiary. Not less than fifteen (15) days prior to the expiration dates of the expiring policies theretofore furnished pursuant to this Section 1.03, originals of the policies bearing notations evidencing the full payment of the annual premium or accompanied by other evidence satisfactory to Beneficiary of such payment shall be delivered by Grantor to Beneficiary.
(2) Grantorβs insurance policies may be part of a blanket insurance policy provided that (a) such blanket policy specifically lists the Secured Property as covered and includes the per occurrence and aggregate limits (if any) for the Secured Property, which limits must be acceptable to Beneficiary, (b) Beneficiary receives the documentation reasonably required to determine the adequacy of the shared blanket limits among the properties insured by the blanket policy, which documentation shall include, a list of the properties covered by the blanket policy, including the Secured Property, and their respective locations and a statement of insurable values for all Special Perils, for each of such properties, and (c) the blanket policy includes an endorsement naming Beneficiary, with respect to any property insurance, as a certificate holder, mortgagee and lender loss payee and with respect to any liability insurance, as an additional insured.
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(1) Grantor shall give Beneficiary written notice of such damage or casualty as soon as possible, but not later than ten (10) days from the date such damage or casualty occurs.
(2) All proceeds of insurance ("Proceeds") paid or to be paid pursuant to any of the policies maintained pursuant to this Deed of Trust shall be payable to Beneficiary. Grantor hereby authorizes and directs any affected insurer to make payment of the Proceeds directly to Beneficiary. Beneficiary may commingle, with other monies in Beneficiary's possession, all Proceeds received by Beneficiary. All such Proceeds shall constitute additional security for the Obligations and Grantor shall not be entitled to the payment of interest thereon. Beneficiary may settle, adjust or compromise all claims for loss, damage or destruction pursuant to any policy or policies of insurance; provided, however, that (i) if no Event of Default has occurred which continues beyond any applicable grace or cure period, (ii) Grantor complies with all other restoration requirements set forth in this Deed of Trust, and (iii) the proceeds of insurance are less than $200,000.00, then Grantor shall be entitled to settle, adjust or compromise such claim and such insurance proceeds shall be disbursed directly to Grantor for purposes of application to the restoration instead of being held by Beneficiary for disbursement, and Grantor covenants and agrees promptly to commence and complete such restoration, and use such proceeds to pay for such restoration.
(3) Subject to the terms of Section 1.03H, Beneficiary shall have the option, in its discretion, and without regard to the adequacy of its security hereunder, of applying all or part of the Proceeds to (a) the Obligations, whether or not then due, in such order as Beneficiary shall determine, (b) the repair or restoration of the Secured Property, (c) reimburse Beneficiary for its costs and expenses in connection with the recovery of the Proceeds, or (d) any combination of the foregoing, subject, however, to the limitations on charging the Make-Whole Amount upon the application of insurance proceeds (and applicable deductible) and condemnation awards as set forth in the paragraph of the Note which commences with the phrase βNotwithstanding the foregoing, in the event of a casualty or condemnation . . .β.
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(4) Nothing herein contained shall be deemed to excuse Grantor from repairing or maintaining the Secured Property as provided in Section 1.05 or restoring all damage or destruction to the Secured Property, regardless of whether there are Proceeds available or whether the Proceeds are sufficient in amount, and the application or release by Beneficiary of any Proceeds shall not cure or waive any Event of Default or notice of default pursuant to this Deed of Trust or invalidate any act done pursuant to such notice.
1.03X. Xxxxxxx's Use of Proceeds.
(1) Notwithstanding any provision herein to the contrary, but subject to the provisions of Section 1.03(H)(4), in the event of any destruction to the Secured Property by fire or other casualty of not more than seventeen (17) apartment units contained in the Improvements, the Proceeds shall be made available to Grantor for repair and restoration, after deducting therefrom and payment to Beneficiary of an amount equal to Beneficiary's costs in connection with collection, review and disbursement of the Proceeds of such damage or casualty, provided that:
(a) The Proceeds are deposited with Beneficiary;
(b) No Event of Default shall have occurred and be continuing under the terms of any of the Loan Instruments;
(c) The insurer does not deny liability to any named insured;
(d) Beneficiary is furnished with, and has approved (i) a complete, final set of plans and specifications for the work to be performed in connection with the repair or restoration, (ii) an estimate of the cost of repair and restoration, and (iii) a certificate of Beneficiary's Architect as to such costs;
(e) The value, quality and condition of the Secured Property so repaired or restored shall be at least equal to that of the Secured Property prior to such damage or casualty;
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(f) Grantor furnishes Beneficiary with evidence reasonably satisfactory to Beneficiary that all Improvements so repaired or restored and their use shall fully comply with all applicable (i) easements, covenants, conditions, restrictions or other private agreements or instruments of record affecting the Secured Property and (ii) Legal Requirements;
(g) If the estimated cost of such repair or restoration exceeds the Proceeds available, Grantor shall (i) furnish a bond of completion or provide other evidence satisfactory to Beneficiary of Grantor's ability to pay such excess costs, or (ii) deposit with Beneficiary additional funds equal to such excess;
(h) Beneficiary shall have received written notice of damage or casualty from Grantor within ten (10) business days from the date of such damage or casualty, which notice shall state the date of such damage or casualty, and shall contain a request to Beneficiary to make the Proceeds available to Grantor;
(i) Beneficiary shall have received a report or proof of claim from the insurer describing the damage or casualty and the insurerβs payment therefor;
(j) During and after the repair and restoration period, the aggregate monthly net income pursuant to rent and/or business income interruption insurance coverage and/or pursuant to all Leases remaining in full force and effect shall be in an amount sufficient to pay the monthly installments of principal and interest required to be paid on the Obligations, as well as all payments for taxes and insurance required pursuant to Section 1.04 and all Secured Property operating expenses, as estimated by Beneficiary; and
(k) the Debt Coverage Ratio is not less than 1.20x.
(2) Beneficiary shall disburse the Proceeds during the course of repair or restoration upon (a) the certification of Beneficiary's Architect as to the cost of the work done, (b) the conformity, as determined by Beneficiary, of the work to plans and specifications approved by Beneficiary, and (c) receipt of evidence of a title insurance company acceptable to Beneficiary that there are no liens arising out of the repair or restoration or otherwise. Notwithstanding the above, a portion of the Proceeds may be released prior to the commencement of repair or restoration to pay for items approved by Beneficiary in its discretion. Subject to satisfaction of the foregoing conditions, Beneficiary shall make such disbursements within ten (10) business days after a written request by Xxxxxxx. No payment made prior to the final completion of work shall exceed ninety percent (90%) of the value of the work performed from time to time, and at all times the undisbursed balance of the Proceeds remaining with Beneficiary must be at least sufficient to pay for the cost of completion of the work (as estimated by Beneficiary in its discretion), free and clear of liens. Beneficiary shall make final payment after receipt of a certification of Beneficiary's Architect confirming the completion of the work in accordance with plans and specifications approved by Beneficiary.
(3) At its option, Beneficiary shall (a) return to Grantor the balance of the Proceeds after full disbursement in accordance with Sections 1.03H(1) and (2), or (b) apply such balance to the Obligations, whether or not then due, in such order as Beneficiary shall determine, subject, however, to the limitations on charging the Make-Whole Amount upon the application of insurance proceeds (and applicable deductible) and condemnation awards as set forth in the paragraph of the Note which commences with the phrase βNotwithstanding the foregoing, in the event of a casualty or condemnation . . .β.
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(4) In all cases in which any destruction of the Secured Property by fire or other casualty occurs during the last twelve (12) months prior to the Maturity Date, or in Beneficiary's judgment, Grantor is not proceeding with the repair or restoration in a manner that would entitle Grantor to have the Proceeds disbursed to it, or for any other reason Beneficiary determines in its judgment that Grantor shall not be entitled to the Proceeds pursuant to the terms of this Deed of Trust, Beneficiary shall have the options set forth in Section 1.03 F(3).
(5) Under no circumstances shall Beneficiary become personally liable for the fulfillment of the terms, covenants and conditions contained in any of the Leases or obligated to take any action to repair or restore the Secured Property.
1.05 Care and Use of the Premises.
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1.05B. Standard of Repairs. The necessity for and adequacy of repairs to the Secured Property pursuant to Section 1.05A shall be measured by the standard which is appropriate for a first class apartment complex and related facilities of similar construction and type located in the Memphis, Tennessee area. Further, Grantor shall make all repairs necessary to avoid any structural damage to the Improvements and to keep the Secured Property in a proper condition for its intended use. When used in this Section 1.05, the terms "repair" and "repairs" shall include all necessary renewals and replacements. Grantor shall make all repairs with new, first-class materials and in a good, substantial and workerlike manner which shall be equal or better in quality and class to the original work.
1.05C. Removal of Equipment. Grantor shall have the right, at any time and from time to time, to remove and dispose of equipment which may have become obsolete or unfit for use or which is no longer useful in the operation of the Secured Property. Grantor will promptly replace all equipment so disposed of or removed with other equipment of a value and serviceability equal to or greater than the original value and serviceability of the equipment so removed or disposed of, free of all liens, claims or other encumbrances. If by reason of technological or other developments in the operation and maintenance of buildings of the general character of the Improvements, no replacement of the building equipment so removed or disposed of is necessary or desirable in the proper operation or maintenance of the Improvements, Grantor shall not be required to replace same. The security interest of this Deed of Trust shall cover all such replacement equipment.
1.05E. Hazardous Materials.
(1) Grantor hereby unconditionally and irrevocably agrees to indemnify, reimburse, defend, exonerate, pay and hold harmless Beneficiary, and its directors, officers, policyholders, shareholders, employees, successors (including any successor to Beneficiaryβs interest in the chain of title), assigns, agents, attorneys, contractors, subcontractors, experts, licensees, visitors, affiliates, lessees, mortgagees, trustees and invitees, from and against any and all of the following (referred to collectively as the βIndemnified Claimsβ): all Environmental Damages and Environmental Claims that may be incurred by, imposed upon, or asserted against, any Person indemnified hereunder, arising out of, related to, or in connection with:
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(a) the presence of Hazardous Materials in, on, under or about or the Release or threatened Release of any Hazardous Materials to or from (i) the Secured Property or (ii) any other property legally or beneficially owned (or any interest or estate which is owned) by Grantor, regardless of whether or not the presence of such Hazardous Materials arose prior to the present ownership or operation of the property in question or as a result of the acts or omissions of Grantor or any other Person,
(b) the violation or alleged violation of any Environmental Requirement affecting or applicable to the Secured Property or any activities thereon, regardless of whether or not the violation of such Environmental Requirement arose prior to the present ownership or operation of the property in question or as a result of the acts or omissions of Grantor or any other Person,
(c) the breach of any warranty or covenant or the inaccuracy of any representation contained in the Loan Instruments pertaining to Hazardous Materials or other environmental matters, including the covenants contained in Sections 1.05E(2), (3), (4) and (5) and the representations and warranties contained in Sections 1.05E(4) and 2.03C and D,
(d) the transport, treatment, recycling, storage or disposal or arrangement therefor, of any Hazardous Material to, at or from the Secured Property, or
(e) the enforcement or attempted enforcement of this indemnity.
Grantorβs obligations pursuant to the foregoing indemnity shall include the burden and expense of (x) defending against all Indemnified Claims, even if such Indemnified Claims are groundless, false or fraudulent, (y) conducting all negotiations of any description with respect to the Indemnified Claims, and (z) paying and discharging any and all Indemnified Claims, when and as the same become due, against or from Beneficiary or any other Person indemnified pursuant to this Section 1.05E(1). Grantorβs obligations under this Section 1.05E(1) shall survive (i) the repayment of all sums due under the Note; (ii) the release of the Secured Property or any portion thereof from the lien of this Deed of Trust; (iii) the reconveyance of or foreclosure under this Deed of Trust (notwithstanding that all or a portion of the obligations secured by this Deed of Trust shall have been discharged thereby); (iv) the acquisition of the Secured Property by Beneficiary; and/or (v) the transfer of all of Beneficiaryβs rights in and to the Note and/or the Secured Property.
(2) Grantor shall maintain the Secured Property in compliance with, and shall not cause or permit the Secured Property to be in violation of, any applicable Environmental Requirements. Grantor shall not, and shall not permit any lessee or occupant of the Secured Property to, use, generate, manufacture, store, maintain, dispose of or permit to exist in, on, under or about the Secured Property any Hazardous Materials, except for the use, storage and disposal (such use, storage and disposal to be in all cases in accordance with all applicable Legal Requirements) of de minimis amounts of janitorial and cleaning supplies and other Hazardous Materials typically used in (A) the ordinary course of operating and maintaining a first class apartment complex and/or (B) the ordinary course of tenantsβ use of the Secured Property for residential purposes. Grantor shall, at all times, comply fully and in a timely manner, and cause all of its employees, agents, contractors and subcontractors and any other Persons occupying or present on the Secured Property to so comply, with all applicable Environmental Requirements.
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(3) Promptly, upon the written request of Beneficiary, but not more frequently than once per year, Grantor shall provide Beneficiary, at Grantor's expense, with an environmental site assessment or environmental audit report prepared by an environmental engineering firm acceptable to Beneficiary and in a form acceptable to Beneficiary, assessing the presence or absence of any Hazardous Materials and the potential costs in connection with the abatement, cleanup or removal of any Hazardous Materials found in, on, under or about the Secured Property. Grantor shall cooperate in the conduct of such site assessment or environmental audit.
(4) Grantor represents and warrants that, except as may be described in that certain Phase I Environmental Site Assessment Report prepared by SES Environmental, Inc., Project #133827, dated October 3, 2013 (the βEnvironmental Reportβ), (a) no enforcement, cleanup, removal or other governmental or regulatory action has, at any time, been instituted, contemplated or threatened against Grantor, or to its best knowledge, the Secured Property, pursuant to any Environmental Requirements; (b) to the best of its knowledge, no violation or noncompliance with any Environmental Requirements has occurred with respect to the Secured Property at any time; (c) to the best of its knowledge, no claims have, at any time, been made or threatened by any third party against the Secured Property or against Grantor with respect to the Secured Property, relating to damage, contribution, cost recovery, compensation, loss or injury resulting from any Hazardous Materials (the matters set forth in this Section 1.05E(4) (a), (b) and (c) are herein referred to as "Hazardous Materials Claims"). Grantor shall promptly advise Beneficiary, in writing, if any Hazardous Materials Claims are hereafter asserted, or if Grantor obtains knowledge of any Release of any Hazardous Materials in, on, under or about the Secured Property.
(5) Without Beneficiary's prior written consent, Grantor shall not (a) take any remedial action in response to the presence of any Hazardous Materials in, on, under or about the Secured Property, or (b) enter into any settlement agreement, consent decree or other compromise in respect of any such Hazardous Materials or any Hazardous Material Claims. However, Beneficiary's prior consent shall not be necessary in the event that the presence of any Hazardous Materials in, on, under or about the Secured Property either poses an immediate threat to the health, safety or welfare of any individual or is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Beneficiary's consent before taking such action. In such event, Grantor shall notify Beneficiary as soon as practical of any action so taken. Beneficiary shall not withhold its consent, where such consent is required hereunder, if either (a) a particular remedial action is ordered by a court of competent jurisdiction, or (b) Grantor establishes to the satisfaction of Beneficiary that there is no reasonable alternative to such remedial action which would result in less impairment to the Secured Property, or (c) Grantor establishes to the reasonable satisfaction of Beneficiary that such remedial action is required by Environmental Requirements.
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(6) Beneficiary, if it so elects, shall have the right to join and participate as a party in any legal proceedings or actions initiated by any Person in connection with any Hazardous Materials Claim and, in such case, Grantor shall pay all of Beneficiary's attorneys' fees and expenses incurred in connection therewith.
1.05G. Alteration of Secured Property. Grantor shall not demolish, remove, construct, restore, add to or alter any portion of the Secured Property or any extension thereof, or consent to or permit any such demolition, removal, construction, restoration, addition or alteration in an amount greater than $100,000.00 in any calendar year, without Beneficiaryβs prior written consent, except for (1) initial tenant improvement work provided for in any Lease in effect on the date hereof and in any other Lease approved by Beneficiary in writing, and (2) ordinary, non-structural maintenance work.
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(1) Such contest shall not subject Beneficiary or Grantor to any civil or criminal liability;
(2) By the terms of any such Legal Requirement, compliance therewith pending the prosecution of any such legal proceedings may legally be delayed without incurring (or increasing the risk of incurring) any damage or injury of any kind to the Secured Property or any Person or property and without incurring any lien or charge of any kind against the Secured Property or any fine or penalty against Grantor, Grantor may delay compliance therewith until the final determination of such legal proceedings; and
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(3) Such contest shall not cause a breach of any of the terms, conditions or covenants of any Lease or other agreement on Grantorβs part to be performed.
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1.07X. Xxxxxxxxxxx's Right to Participate in Proceedings. If the Secured Property, or any part thereof, shall be taken in condemnation proceedings or by exercise of any right of eminent domain (collectively, "Condemnation Proceedings"), Beneficiary shall have the right to participate in any such Condemnation Proceedings and all awards or payments (collectively, "Award") that may be made in any such Condemnation Proceedings are hereby assigned to Beneficiary, and shall be deposited with Beneficiary and applied in the manner set forth in this Section 1.07. Grantor shall give Beneficiary immediate notice of the actual or threatened (in writing) commencement of any Condemnation Proceedings affecting all or any part of the Secured Property, including all such Condemnation Proceedings as to severance and consequential damage and change in grade in streets, and will deliver to Beneficiary copies of any and all papers served or received in connection with any Condemnation Proceedings. Notwithstanding the foregoing, Beneficiary is hereby authorized, at its option, to commence, appear in and prosecute in its own or Grantor's name any action or proceeding relating to any Condemnation Proceedings and to settle or compromise any claim in connection therewith. No settlement for the damages sustained in connection with any Condemnation Proceedings shall be made by Grantor without Beneficiary's prior written approval, not to be unreasonably withheld. Grantor shall execute any and all further documents that may be required in order to facilitate the collection of each Award.
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(2) Notwithstanding any provision contained herein to the contrary, but subject to the provisions of Section 1.07B(3), if less than Substantially All of the Secured Property shall be taken in a Condemnation Proceeding (except for a taking (a) of more than seventeen (17) apartment units contained in the Improvements, (b) of an amount of parking spaces which would cause the Secured Property to be in violation of zoning or other applicable law or Legal Requirements or to be in violation of any covenants, restrictions, easements, Leases and other applicable agreements affecting the Secured Property, and/or (c) that affects access to the Premises or any part thereof from a public right of way), Beneficiary shall, after deducting Beneficiary's costs in connection with collection, review and disbursement related to the Award and the Condemnation Proceeding, apply the balance of the Award to the cost of restoring, repairing or altering the remaining portion of the Secured Property, subject to the provisions of Section 1.03(H) (which provisions shall apply in all respects except that any reference therein to Proceeds shall be deemed to refer to the Award), and Grantor will promptly restore, repair or alter the remaining Secured Property, subject to the provisions of Section 1.03(H). The provisions of this Section 1.07(B)(2) shall not apply unless Grantor shall furnish to Beneficiary evidence satisfactory to Beneficiary that the Secured Property, as so restored, reconstructed or altered, and its use would fully comply with all Legal Requirements. The balance of the Award so deposited with Beneficiary, after disbursement in accordance with this Section 1.07(B)(2), shall be applied to the payment of the Obligations, whether or not due, in such order as Beneficiary shall determine, subject, however, to the limitations on charging the Make-Whole Amount upon the application of insurance proceeds (and applicable deductible) and condemnation awards as set forth in the paragraph of the Note which commences with the phrase βNotwithstanding the foregoing, in the event of a casualty or condemnation . . .β. The Award and other sums deposited with Beneficiary, until disbursed or applied as provided in this Section 1.07)B)(2), may be commingled with the general funds of Beneficiary, shall constitute additional security for the Obligations, and shall not bear interest.
(3) In all cases in which any taking occurs during the last twelve (12) months prior to the Maturity Date, or in Beneficiary's judgment, Grantor is not proceeding with the repair or restoration in a manner that would entitle Grantor to have the Award disbursed to it, or for any other reason Beneficiary determines, in its judgment, that Grantor shall not be entitled to the Award pursuant to the terms of this Deed of Trust, Beneficiary, without regard to the adequacy of its security hereunder, shall have the right to apply the Award to payment of the Obligations, whether or not due, in such order as Beneficiary shall determine, subject, however, to the limitations on charging the Make-Whole Amount upon the application of insurance proceeds (and applicable deductible) and condemnation awards as set forth in the paragraph of the Note which commences with the phrase βNotwithstanding the foregoing, in the event of a casualty or condemnation . . .β.
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1.08 Leases.
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(1) lease to any Person, all or any part of the space in, on or over any of the Premises; except Leases for actual occupancy by the Lessee made in the ordinary course of the business of owning and operating a first-class apartment project in a prudent manner, on Grantorβs standard lease form, approved by Beneficiary, without material deviation therefrom;
(2) cancel, terminate or accept a surrender or suffer or permit any cancellation, termination or surrender of any Lease or any guaranty of any Lease except, with respect to any Lease, in the ordinary course of business of owning and operating a first class apartment project in a prudent manner;
(3) modify any Lease so as to (i) reduce the term thereof or the Rents payable thereunder, (ii) change any renewal provision contained therein, (iii) otherwise increase any obligation of Grantor thereunder, or (iv) reduce any obligation of Lessee thereunder except, with respect to any Lease, in the ordinary course of business of owning and operating a first class apartment project in a prudent manner;
(4) commence any summary proceeding or other action to recover possession of any space demised pursuant to any Lease, other than a proceeding brought in good faith by reason of a default of any Lessee;
(5) receive or collect, or permit the receipt or collection of, any Rents for more than one month in advance of the payment due dates plus a one-month security deposit;
(6) take any other action with respect to any Lease which would tend to impair the security of Beneficiary pursuant to this Deed of Trust;
(7) extend any present Lease other than in accordance with the terms presently provided for therein; except leases for actual occupancy by the Lessee made in the ordinary course of business of owning and operating a first-class apartment project in a prudent manner;
(8) execute any agreement or instrument or create or permit a lien which may be or become superior to any Lease;
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(9) suffer or permit to occur any release of liability of any Lessee or the accrual of any right in any Lessee to withhold payment of any Rent except, with respect to any Lease, in the ordinary course of business of owning and operating a first class apartment project in a prudent manner;
(10) sell, assign, transfer, mortgage, pledge or otherwise dispose of or encumber, whether by merger, consolidation, operation of law or otherwise, any Lease or any Rents;
(11) alter, modify or change the terms of any guaranty of any Lease or consent to the release of any party thereto except, with respect to any Lease, in the ordinary course of business of owning and operating a first class apartment project in a prudent manner; or
(12) request, consent, agree to, or accept, the subordination of any Lease to any mortgage (other than this Deed of Trust) or other encumbrance now or hereafter affecting the Premises.
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1.09 Assignment of Leases, Rents, Income, Profits and Cash Collateral.
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1.10A. General; Appointment of Attorney-in-Fact. Upon request by Beneficiary, from time to time, Grantor shall prepare, execute and deliver, or cause to be prepared, executed and delivered, to Beneficiary, all instruments, certificates and other documents which may, in the reasonable opinion of Beneficiary, be necessary or desirable in order to effectuate, complete, perfect or continue and preserve the Obligations and the lien of this Deed of Trust provided that such instruments, certificates and other documents do not (i) materially increase any obligation imposed on Grantor or (ii) materially change the applicability, scope or effect of any covenant, condition, or restriction contained in any of the Loan Instruments. Upon any failure by Grantor to do so, Beneficiary may prepare, execute and record any such instruments, certificates and documents for and in the name of Xxxxxxx and Grantor hereby appoints Beneficiary the agent and attorney-in-fact of Grantor for such purposes. This power is coupled with an interest and shall be irrevocable so long as any part of the Obligations remain unpaid or unperformed. Grantor shall reimburse Beneficiary for all sums expended by Beneficiary in preparing, executing and recording such instruments, certificates and documents and such sums shall be secured by this Deed of Trust.
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(1) The Personal Property includes all now existing or hereafter acquired or arising equipment, inventory, accounts, chattel paper, instruments, documents, deposit accounts, investment property, letter-of-credit rights, commercial tort claims, supporting obligations and general intangibles now or hereafter used or procured for use on the Premises or otherwise relating to the Premises. If Grantor shall at any time acquire a commercial tort claim relating to the Premises, Grantor shall immediately notify Beneficiary in a writing signed by Grantor of the brief details thereof and grant to Beneficiary a security interest therein and in the proceeds thereof.
(2) Grantor hereby irrevocably authorizes Beneficiary at any time and from time to time to file in any filing office in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (a) indicate the collateral as βall assets used or procured for use or otherwise relating toβ the Premises or words of similar effect, or as being of equal or lesser scope or in greater detail, and to indicate the Premises as defined, or in a manner consistent with the term as defined, in this Deed of Trust and (b) contain any other information required by part 5 of Article 9 of the Uniform Commercial Code of the filing office for the sufficiency or filing office acceptance of any initial financing statement or amendment, including whether Grantor is an organization, the type of organization and any organizational identification number issued to Grantor. Grantor agrees to provide any such information to Beneficiary promptly upon written request. Grantor also ratifies its authorization for Beneficiary to have filed in any filing office in any Uniform Commercial Code jurisdiction any like initial financing statements or amendments thereto if filed prior to the date hereof. Grantor shall pay to Beneficiary, from time to time, upon demand, any and all costs and expenses incurred by Beneficiary in connection with the filing of any such initial financing statements and amendments, including attorneysβ fees and all disbursements. Such costs and expenses shall bear interest at the Increased Rate from the date paid by Beneficiary until the date repaid by Grantor and such costs and expenses together with such interest, shall be part of the Obligations and shall be secured by this Deed of Trust.
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(3) Grantor shall any time and from time to time take such steps as Beneficiary may reasonably request for Beneficiary to obtain βcontrolβ of any Personal Property for which control is a permitted or required method to perfect or to insure priority of the security interest in such Personal Property granted hereby.
(4) Upon the occurrence of an Event of Default, Beneficiary shall have the rights and remedies of a secured party under the Code as well as all other rights and remedies available at law or in equity or under this Deed of Trust.
(5) This Deed of Trust also constitutes a fixture filing.
(6) If Grantor does not have an organizational identification number and later obtains one, Grantor shall forthwith notify Beneficiary of such organizational identification number.
(7) Terms defined in the Code and not otherwise defined in this Deed of Trust have the same meanings in this Section 1.10D as are set forth in the Code. In the event that a term is used in Article 9 of the Code and also in another Article of the Code, the term used in this Section 1.10D is that used in Article 9. The term βcontrol", as used in this Paragraph, has the meaning given in Section 9-104, 9-105, 9-106 or 9-107 of Article 9 of the Code, as applicable.
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1.11 Prohibition on Transfers, Liens or Further Encumbrances.
(1) | all or any part of the Secured Property and/or the Rents, or any interest therein; |
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(2) | any legal or beneficial ownership interest in Grantor or in any of Grantorβs constituent entities, whether direct or indirect, and on all levels, whether made directly or through an intermediary, and whether made in one transaction or effected in more than one transaction; or |
(3) the management and operation by Grantor of the Secured Property.
Without limiting the generality of the foregoing, for purposes of this Section 1.11, a transfer or disposition of the Secured Property (or the Rents, as applicable) or any part thereof or interest therein shall include (a) the change of Grantor's type of organization, jurisdiction of organization or other legal structure, (b) the transfer of the Secured Property or any part thereof or interest therein to a cooperative corporation or association, (c) the conversion of all or any part of the Secured Property or interest therein to a condominium form of ownership, (d) any lease for space in any Improvements for purposes other than occupancy by the tenant, (e) any lease for space in the Improvements containing an option to purchase, (f) any conditional sale or any title retention agreement with regard to, all or any part of the Secured Property or the Rents and (g) unless Grantor has provided Beneficiary with at least thirty (30) days prior written notice thereof, any change of Grantor's name, place of business or, if Grantor has more than one place of business, any change of its chief executive office, or any change of Xxxxxxx's mailing address or organizational identification number if it has one. Any action or event described in this Section 1.11B is herein called a "Transfer" and all Transfers are prohibited without the prior written consent of Beneficiary.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
Grantor represents and warrants:
2.01 Warranty of Title. Grantor (a) lawfully owns and holds title to the Secured Property (other than the Personal Property), in fee simple, subject to no mortgage, lien, charge or other encumbrance, except as specifically set forth in the title insurance policy issued to Beneficiary upon recordation of this Deed of Trust (the βTitle Policyβ), (b) has full power and lawful authority to grant, bargain, sell, convey, assign, release, pledge, set over, transfer and mortgage the Secured Property as set forth herein,(c) lawfully owns and holds title to the Personal Property subject to no mortgage, lien, charge or other encumbrance except as set forth herein, and (d) does warrant and will defend the title to the Secured Property against all claims and demands whatsoever.
2.03 No Pending Material Litigation or Proceeding; No Hazardous Materials.
2.03A. Proceedings Affecting Grantor. There are no actions, suits, investigations or proceedings of any kind pending, or, to the best knowledge and belief of Grantor, threatened, against or affecting Grantor, or any Guarantor, or against any shareholder, general partner or member of Grantor or any Guarantor, or the business, operations, properties or assets of Grantor or any shareholder, general partner or member of Grantor or any Guarantor, or before or by any Governmental Agency, which may result in any material adverse change in the business, operations, properties or assets or in the condition, financial or otherwise, of Grantor or any Guarantor or any general partner or member of Grantor or any Guarantor, or in the ability of Grantor to pay or otherwise perform the Obligations. To the best knowledge and belief of Grantor, no default exists with respect to any judgment, order, writ, injunction, decree, demand, rule or regulation of any Governmental Agency, which might materially and adversely affect the business, operations, properties or assets or the condition, financial or otherwise, of Grantor or any Guarantor or any general partner or member of Grantor or the ability of Grantor to pay or otherwise perform the Obligations.
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2.03B. Proceedings Affecting Secured Property. There are no actions, suits, investigations or proceedings of any kind pending, or, to the best knowledge and belief of Grantor, threatened, against or affecting the Secured Property (including any attempt or threat by any Governmental Agency to condemn or rezone all or any portion of the Secured Property), or involving the validity, enforceability or priority of the Loan Instruments or enjoining or preventing or threatening to enjoin or prevent the use and occupancy of the Secured Property or the performance by Grantor of the Obligations, and there are no rent controls, governmental moratoria or environmental controls (other than those generally imposed by federal or state law) presently in existence or, to the best knowledge and belief of Grantor, threatened, affecting the Secured Property.
(1) caused or knowingly permitted any Hazardous Material to be placed, held, located or disposed of, in, on, under or about the Secured Property or any part thereof, except for the use, storage and disposal (such use, storage and disposal to be in all cases in accordance with all applicable Legal Requirements) of de minimis amounts of janitorial and cleaning supplies and other Hazardous Materials typically used in the ordinary course of operating and maintaining a first class apartment complex, or caused or knowingly permitted, in violation of any Legal Requirement, any Hazardous Material to be placed, held, located or disposed of, in, on, under or about any other real property legally or beneficially owned (or any interest or estate which is so owned) by Grantor in any jurisdiction now or hereafter having in effect a so-called "superlien" law or ordinance (the effect of which superlien law or ordinance would be to permit the creation of a lien on the Secured Property to secure any obligation), and neither the Secured Property, nor any part thereof, nor any other real property legally or beneficially owned (or any interest or estate therein which is so owned) by Grantor in any jurisdiction now or hereafter having in effect a so-called "superlien" law or ordinance or any part thereof, has ever been used (whether by Grantor or, to the best knowledge or belief of Grantor, by any other Person) as a dump site, storage (whether permanent or temporary) site or transfer site for any Hazardous Material; or
(2) caused or knowingly permitted any asbestos or underground fuel storage facility to be located in, on, under or about the Secured Property; or
(3) discovered any occurrence or condition on any real property adjoining or in the vicinity of the Secured Property that could cause the Secured Property or any part thereof to be subject to any remediation requirements or any restrictions on the ownership, occupancy, transferability or use of the Secured Property under any Environmental Requirement.
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2.04 Valid Organization, Good Standing and Qualification of Grantor; Other Organizational Information. Grantor is a duly and validly organized and existing limited liability company in good standing under the laws of the jurisdiction of its organization, and is duly licensed or qualified and in good standing in all other jurisdictions where its ownership or leasing of property or the nature of the business transacted by it makes such qualification necessary, and is entitled to own its properties and assets and to carry on its business, all as, and in the places where, such properties and assets are now owned or operated or such business is now conducted. Grantor has paid all franchise and similar taxes in the jurisdiction in which the Secured Property is located and in all of the jurisdictions in which it is so qualified, insofar as such taxes are due and payable at the date of this Deed of Trust. Xxxxxxxβs exact legal name is that indicated on the signature page hereof. Grantor is an organization of the type, and is organized in the jurisdiction, as set forth in the first paragraph of this Deed of Trust. Grantorβs organizational identification number is 5323439. Section 5.07 accurately sets forth Grantorβs place of business or, if Grantor has more than one place of business, its chief executive office as well as Xxxxxxxβs mailing address if different.
In addition, (a) the Obligations incurred by Grantor and the granting of this Deed of Trust and of the security interest, rights, and/or lien in and to the Secured Property in connection with the Loan are not made or incurred with the intent to hinder, delay, or defraud any present or future creditor of Grantor; (b) Grantor has not received less than reasonably equivalent value in exchange for incurring the Obligations and/or the granting of this Deed of Trust and of the security interest, rights, and/or lien in and to the Secured Property in connection with the Loan; (c) Grantor is solvent as of the date hereof, and Grantor will not become insolvent as a result of incurring the Obligations and/or the granting of this Deed of Trust and of the security interest, rights, and/or lien in and to the Secured Property in connection with the Loan; (d) Grantor is not engaged, and Grantor is not about to engage, in business or a transaction for which any property remaining with Grantor is an unreasonably small capital; (e) Grantor has not and does not intend to incur, and Grantor does not believe that it will incur, debts that would be beyond Grantorβs ability to pay as such debts mature; and (f) Grantor is not granting this Deed of Trust and the security interest, rights, and/or lien in and to the Secured Property and/or incurring the Obligations to or for the benefit of an insider (as defined in 11 U.S.C. Β§ 101(31)), under an employment contract and other than in the ordinary course of business.
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2.09 Federal Reserve Board Regulations. No part of the proceeds of the Loan will be used, directly or indirectly, for the purpose of buying or carrying any margin stock within the meaning of Regulation U of the Board of Governors of the Federal Reserve System (12 CFR 221), or for the purpose of buying or carrying or trading in any securities under such circumstances as to involve Grantor in a violation of Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in a violation of Regulation T of said Board (12 CFR 220). Margin stock does not constitute any of the value of the consolidated assets of Grantor and its subsidiaries, if any, and Grantor does not have any present intention that margin stock will constitute any of the value of such assets. As used in this Section, the terms "margin stock" and "purpose of buying or carrying" shall have the meanings assigned to them in said Regulation U.
2.12 ERISA .
2.12B. Transactions by or with Grantor are not and will not be subject to any Legal Requirements regulating investments of and fiduciary obligations with respect to an employee benefit plan (within the meaning of Section 3(3) of ERISA), regardless of whether such plan is actually subject to ERISA.
2.12C. Any liability or obligation that Grantor (or any Constituent Entity) may have in respect of an employee benefit plan as defined in Section 3(3) of ERISA regardless of whether such plan is actually subject to ERISA has been and shall continue to be satisfied in full.
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ARTICLE III
3.01 Events of Default. The existence of any of the following circumstances shall be deemed an "Event of Default" pursuant to this Deed of Trust, without cure or grace period unless expressly otherwise provided herein:
3.01A. if Grantor fails to pay any portion of the Obligations as and when the same shall become due and payable as provided in the Loan Instruments; or
3.01B. if Grantor fails to perform or observe any other term, provision, covenant or agreement in the Loan Instruments other than as described in the other clauses of this Section 3.01 and such failure continues for thirty (30) days following written notice from Beneficiary, provided that if such failure to perform is not monetary and by its nature cannot reasonably be remedied within thirty (30) days following such written notice from Beneficiary, but is capable of cure, Grantor shall have such additional period of time (but in no event exceeding an additional thirty (30) days) as may be reasonably necessary to cure such default provided that Grantor commences such cure in good faith promptly upon receipt of Beneficiaryβs notice and proceeds diligently thereafter to cure same; or
3.01C. if any representation, warranty, certification, financial statement or other information made or furnished at any time pursuant to the terms of the Loan Instruments or otherwise, by or on behalf of Grantor, any Guarantor or any other Person liable for the Obligations, shall prove to be materially false; or
3.01D. if Grantor shall:
(1) apply for, consent to or acquiesce in the appointment of a receiver, trustee or liquidator of Grantor or of all or any part of Grantor's assets or the Secured Property or any interest in any part thereof (the term "acquiesce" includes the failure to file a petition or motion to vacate or discharge any order, judgment or decree providing for such appointment within ten (10) days after the appointment); or
(2) commence a voluntary case or other proceeding in bankruptcy, or admit in writing its inability to pay its debts as they come due; or
(3) make a general assignment for the benefit of creditors; or
(4) file a petition or an answer seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under any present or future bankruptcy code or any other statute or law relating to bankruptcy, insolvency or other relief for debtors; or
(5) file an answer admitting the material allegations of, or consent to, or default in answering, a petition filed against it in any bankruptcy, reorganization or insolvency case or proceeding; or
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3.01F. if a court of competent jurisdiction enters an order, judgment or decree adjudicating Grantor insolvent, approving a petition seeking reorganization or arrangement of Grantor or appointing a receiver, custodian, trustee or liquidator of Grantor or of all or any part of Grantor's assets or the Secured Property or any interest in any part thereof, and such order, judgment or decree shall continue unstayed and in effect for any period of forty-five (45) consecutive days; or
3.01G. if Grantor assigns or purports to assign the whole or any part of the Rents arising from the Secured Property or any part thereof without the prior written consent of Beneficiary; or
3.01K. if any of the events described in Section 3.01(D), Section 3.01(E) and/or Section 3.01(F) shall occur in respect of any Guarantor; or
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ARTICLE IV
4.01 Acceleration, Foreclosure, etc. Upon the happening of any Event of Default, Beneficiary may, at its sole option, declare the entire unpaid balance of the Obligations, including, the Make-Whole Amount and any other prepayment charges, if any, due pursuant to any Loan Instrument, immediately due and payable without further notice or demand, provided, however, simultaneously with the occurrence of an Event of Default under Section 3.01D, 3.01E or 3.01F,and without the necessity of any notice or other action by the Beneficiary, all Obligations shall automatically become and be due and payable, without notice or demand. In addition, upon the happening of any Event of Default, Beneficiary may, at its sole option, without further delay, undertake any one or more of the following or exercise any other remedies available to it under applicable law or equity:
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4.01C. Entry. Beneficiary personally, or by its agents or attorneys, may enter all or any part of the Secured Property, and may exclude Grantor, its agents and servants wholly therefrom without liability for trespass, damages or otherwise. Grantor shall surrender possession of the Secured Property to Beneficiary on demand after the happening of any Event of Default. Thereafter, Beneficiary may use, operate, manage and control the Secured Property and conduct the business thereof, either personally or by its superintendents, managers, agents, servants, attorneys or receivers. Upon each such entry, Beneficiary, at the expense of Grantor from time to time, either by purchase, repairs or construction, may maintain and restore the Secured Property, may complete the construction of the Improvements and in the course of such completion may make such changes in the contemplated or completed Improvements as Beneficiary may deem desirable and may insure the same. At the expense of Grantor, Beneficiary may make, from time to time, all necessary or desirable repairs, renewals and replacements and such alterations, additions, betterments and improvements thereto and thereon as Beneficiary may reasonably deem advisable to protect the value of the Secured Property. In each of the circumstances described in this Section 4.01C, Beneficiary shall have the right to manage and operate the Secured Property and to carry on the business thereof and exercise all rights and powers of Grantor with respect thereto, either in the name of Grantor or otherwise as Beneficiary shall deem best.
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ARTICLE V
5.01 Non-Waiver. The failure of Beneficiary to insist upon strict performance of any term of this Deed of Trust or any other Loan Instrument shall not be deemed to be a waiver of any term of this Deed of Trust or any other Loan Instrument. Grantor shall not be relieved of its obligation to pay and perform the Obligations, at the time and in the manner provided in the Loan Instruments, by reason of (A) a failure by Beneficiary to take any action to foreclose this Deed of Trust or otherwise enforce any of the provisions of this Deed of Trust or of any other Loan Instrument (regardless of whether or not Grantor has requested Beneficiary to do so), (B) the release, regardless of consideration, of the whole or any part of the Secured Property or any other security for the Obligations, or (C) any agreement or stipulation between Beneficiary and any subsequent owner or owners of the Secured Property or any other Person extending the time of payment or otherwise modifying or supplementing the terms of this Deed of Trust or any other Loan Instrument, without first having obtained the consent of Grantor. Grantor shall pay and perform the Obligations at the time and in the manner provided in this Deed of Trust and the other Loan Instruments as so extended, modified or supplemented, unless expressly released and discharged by Beneficiary. Regardless of consideration, and without the necessity for any notice to or consent by the holder of any subordinate lien, encumbrance, right, title or interest in or to the Secured Property, Beneficiary may release any Person at any time liable for the payment or performance of the Obligations, or any part thereof, or any part of the security held for the Obligations, and may extend the time of such payment or performance or otherwise modify the terms of any Loan Instrument, including a modification of the interest rate payable on the principal balance of the Note, without in any manner impairing or affecting any of the Loan Instruments or the lien thereof or the priority of this Deed of Trust, as so extended and modified, as security for the Obligations over any such subordinate lien, encumbrance, right, title or interest. Beneficiary may resort for the payment and performance of the Obligations to any other security held by Beneficiary in such order and manner as Beneficiary, in its discretion, may elect. Beneficiary may take action to require payment and performance of the Obligations, or any part thereof, or to enforce any term of this Deed of Trust, without prejudice to the right of Beneficiary thereafter to foreclose this Deed of Trust. In addition to the rights and remedies stated in this Deed of Trust, Beneficiary may exercise every additional right and remedy now or hereafter afforded by law or in equity. Each right of Beneficiary pursuant to this Deed of Trust shall be separate, distinct and cumulative, and no such right shall be given effect to the exclusion of any other. No act of Beneficiary shall be construed as an election to proceed pursuant to any one provision of this Deed of Trust to the exclusion of any other provision.
5.02 Sole Discretion of Beneficiary. Whenever pursuant to this Deed of Trust or in any other Loan Instrument (A) Beneficiary exercises any right to approve or disapprove or to give or withhold its consent, (B) any arrangement or term is to be satisfactory to Beneficiary, or (C) any other decision or determination is to be made by Beneficiary, Beneficiary may give or withhold such approval or consent, determine whether or not such arrangement or term is satisfactory, and make all other decisions or determinations, in Beneficiaryβs sole and absolute discretion, and Beneficiary's decision shall be final and conclusive except where this Deed of Trust or such other Loan Instrument expressly provides to the contrary. If Grantor shall seek the consent or approval of Beneficiary pursuant to this Deed of Trust and Beneficiary shall fail or refuse to give such consent or approval, Grantor shall not be entitled to any damages for any withholding of such approval or consent by Beneficiary. Xxxxxxx's sole remedy shall be an action for injunctive or declaratory relief, which remedy shall be available only in those cases where Beneficiary has expressly agreed not to unreasonably withhold its consent or approval.
5.03 Legal Tender. Grantor shall pay all payments of principal, interest or other amounts required or provided for herein in lawful money of the United States of America at the time of payment, at the above described office of Beneficiary or at such other place as Beneficiary may from time to time designate.
5.04 No Merger or Termination. If both the lessor's and Xxxxxx's estates under any Lease or any portion thereof which constitutes a part of the Secured Property shall at any time become vested in one owner, this Deed of Trust and the lien created hereby shall not be destroyed or terminated by the application of the doctrine of merger and in such event, Beneficiary shall continue to have and enjoy all of its rights and privileges as to the separate estates. In addition, the foreclosure of this Deed of Trust shall not destroy or terminate any Lease or sublease then existing and created by Grantor, whether by application of the law of merger or as a matter of law or otherwise, unless Beneficiary or any purchaser at any sale related to such foreclosure shall so elect. No act by or on behalf of Beneficiary or any such purchaser shall constitute a termination of any Lease or sublease, unless Beneficiary or such purchaser shall give written notice thereof to the related Lessee or sublessee.
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5.05 Discontinuance of Actions. If Beneficiary shall enforce any right pursuant to this Deed of Trust by foreclosure, sale, entry or otherwise and discontinue or abandon such enforcement for any reason or any such proceedings shall have been determined adversely, then, in each such case, Grantor and Beneficiary shall be restored to their former positions and rights hereunder, and the Secured Property shall remain subject to the lien of this Deed of Trust.
5.06 Headings. The headings of the Sections and other subdivisions of this Deed of Trust are for the convenience of reference only, are not to be considered a part hereof, and shall not limit or otherwise affect any of the terms hereof.
5.07 Notice to Parties. All notices and demands or other communications hereunder shall be in writing, and shall be deemed to have been sufficiently given or served for all purposes when presented personally or sent by generally recognized overnight delivery service, with postage prepaid, addressed to Grantor or Beneficiary or Trustee, as applicable, at the addresses stated below, or at such other address of which either Grantor or Beneficiary or Trustee may hereafter notify the other in writing:
Grantor: | XX Xxxxxx Creek, LLC |
00000 Xxxx Xxxxxxx Xxxx Xxxxx, Xxxxx 000
Aventura, Florida 33180
Attn: Xxxxxxx Xxxx
with a copy to: | Xxxxxxxxxx Xxxxxx |
000 X. Xxxxxxx Xxxxx Xxxx, Xxxxx 000
Fort Lauderdale, FL 33309
Attn: Xxxxx X. Xxxxxxxxxx, Esq.
Beneficiary: | NEW YORK LIFE INSURANCE COMPANY |
c/o New York Life Investment Management LLC
00 Xxxxxxx Xxxxxx
New York, New York 10010-1603
Attn: Real Estate Group
Director β Loan Administration Division
Loan No. 374-0518
With a copy to: | NEW YORK LIFE INSURANCE COMPANY |
Office of the General Counsel
00 Xxxxxxx Xxxxxx
New York, New York 10010-1603
Attn: Managing Director β Real Estate Section |
Loan No. 374-0518
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Trustee: | Xxxxx X. Xxxxxx |
c/o Xxxxx, Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxx Xxxxxx
Memphis, Tennessee 38103
Each notice or demand so given or served shall be deemed given and effective, (A) if personally delivered, on the day of actual delivery or refusal and (B) if sent by generally recognized overnight delivery service, on the next business day. Notwithstanding the foregoing, service of any notice of default or notice of sale provided or required by law in connection with Beneficiaryβs exercise of any of its remedies following an Event of Default shall, if mailed as required by law, be deemed given and effective on the date of mailing.
5.08 Successors and Assigns Included In Parties. Subject to the provisions of Section 1.11, each reference herein to Grantor or Beneficiary shall mean and include, the heirs, legal representatives, successors and assigns of such Person. All covenants and agreements contained in this Deed of Trust by or on behalf of Grantor shall bind and inure to the benefit of Grantorβs heirs, legal representatives, successors and assigns, and all covenants and agreements by or on behalf of Beneficiary shall bind and inure to the benefit of Beneficiaryβs successors and assigns.
5.09 Changes and Modifications. This Deed of Trust may only be changed or modified by an agreement in writing, signed by both Grantor and Beneficiary.
5.10 Applicable Law. This Deed of Trust shall be construed and enforced according to the law of the State, other than such law with respect to conflicts of laws.
5.11 Invalid Provisions to Affect No Others. The unenforceability or invalidity of any provision or provisions of this Deed of Trust as to any Persons or circumstances shall not render that provision or those provisions unenforceable or invalid as to any other Persons or circumstances, and all provisions hereof, in all other respects, shall remain valid and enforceable.
5.12 Usury Savings Clause. Grantor and Beneficiary intend to conform strictly to the usury laws now or hereafter in force in the State and all interest and loan charges, including without limitation, any Late Charge (as defined in the Note), payable pursuant to the Note, this Deed of Trust or any other Loan Instrument, unless exempt from such laws, shall be subject to reduction to the amount equal to the maximum non-usurious amount allowed pursuant to such usury laws as now or hereafter construed by the courts having jurisdiction over such matters. The aggregate of all interest and loan charges (whether designated as interest, service charges, points or otherwise) contracted for, chargeable or receivable pursuant to the Note, this Deed of Trust or any other Loan Instrument shall under no circumstances exceed the maximum non-usurious rates of interest and loan charges which Beneficiary may charge under applicable law from time to time. Any interest and loan charges in excess of the maximum amount permitted by law shall be deemed a mistake and shall be canceled automatically and, if theretofore paid, Beneficiary shall, at its option, either rebate such amounts to Grantor or credit such amounts to the principal amount of the Obligations, or if all such principal has been repaid, Beneficiary shall rebate such excess to Grantor.
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5.13 No Statute of Limitations. To the full extent permitted by law, Grantor hereby waives the pleading of any statute of limitations as a defense to any or all of the Obligations.
5.14 Late Charges. If Grantor fails to pay, when due, without regard to any grace period, any installment of interest or principal, any payment due pursuant to Section 1.04 or any deposit or reserve due pursuant to this Deed of Trust or any other Loan Instrument, Grantor shall pay to Beneficiary (unless waived by Beneficiary) the Late Charge as defined and described in the Note; provided, however, no Late Charge shall apply to the balloon payment due on the Maturity Date. Each such Late Charge, if not previously paid, shall, at the option of Beneficiary, be added to and become part of the succeeding monthly payment to be made pursuant to the Note, and shall be secured by this Deed of Trust.
5.15 Waiver of Jury Trial. To the extent not prohibited by applicable law, Grantor waives any right to trial by jury with respect to any action or proceeding (a) brought by Grantor, Beneficiary or any other Person relating to (i) the Obligations or any understandings or prior dealings between Grantor and Beneficiary or (ii) the Loan Instruments, or (b) to which Beneficiary is a party.
5.16 Continuing Effectiveness. This Deed of Trust shall secure all advances made pursuant to the Loan Instruments, all rearrangements and renewals of the Obligations and all extensions as to the time of payment thereof, whether or not such advances, rearrangements, renewals or extensions are evidenced by new promissory notes or other instruments hereafter executed and irrespective of whether filed or recorded. The execution of this Deed of Trust shall not impair or affect any other security which may be given to secure the payment of the Obligations, and all such additional security shall be considered as cumulative. The taking of additional security, execution from time to time of partial releases as to the Secured Property or any extension of time of payment of the Obligations shall not diminish the force, effect or lien of this Deed of Trust, and shall not affect or impair the liability of any maker, surety or endorser for the payment of the Obligations.
5.17 Time of Essence. Time is of the essence as to Grantorβs performance of each provision of this Deed of Trust, the Note and the other Loan Instruments. Grantor agrees that where, by the terms of this Deed of Trust, the Note or any other Loan Instrument, a day is named or a time is fixed for the payment of any sum of money or the performance of any obligation by Grantor, the day and/or time stated enters into the consideration and is of the essence of the whole contract.
5.18 Non-Recourse. If an Event of Default has occurred (and regardless of whether or not it has been cured), Beneficiary shall have all rights provided in the Note, this Deed of Trust or any other Loan Instrument or at law or in equity, and shall have full recourse to the Secured Property and to any other collateral given by Grantor to secure any or all of the Obligations, provided that any judgment obtained by Beneficiary in any proceeding to enforce such rights shall be enforced only against the Secured Property and such other collateral. Notwithstanding the foregoing, Beneficiary shall not in any way be prohibited from naming Grantor or any of its successors or assigns or any Person holding under or through them as parties to any actions, suits or other proceedings initiated by Beneficiary to enforce such rights or to foreclose the lien of this Deed of Trust or to otherwise realize upon any other lien or security interest created in any other collateral given to secure the payment of the Obligations. The foregoing restriction shall not apply to, and Grantor shall be personally liable for, and Beneficiary may seek and enforce judgment against Grantor for:
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(A) any and all losses, claims, damages, costs, expenses and/or liabilities, including, reasonable attorneysβ fees and expenses, incurred by Beneficiary:
(1) relating to or as a result of any material misstatement of fact (a) by or on behalf of, Grantor or Guarantor to Beneficiary or Beneficiaryβs advisor relating to the Loan or (b) contained in any Loan Instrument,
(2) relating to or as a result of fraud relating to the Loan, the Loan Instruments, or any documents, materials or other information delivered by or on behalf of Grantor or Guarantor to Beneficiary, Beneficiaryβs advisor or their respective counsel relating to the Loan,
(3) relating to or as a result of misapplication of (a) insurance proceeds in a manner which is not in accordance with the provisions of the Loan Instruments, (b) condemnation awards in a manner which is not in accordance with the provisions of the Loan Instruments, (c) trust funds or Lessee security deposits which are received by or on behalf of Grantor and are neither turned over to Beneficiary or used in compliance with the Loan Instruments, or (d) Rents, issues, profits or other proceeds from the Secured Property received by, or on behalf of, Grantor or Guarantor and not otherwise applied to the Loan or to payment of Secured Property operating expenses as required by the Loan Instruments,
(4) relating to or as a result of the breach of any representation or warranty contained in the Sections of this Deed of Trust pertaining to environmental matters, including Section 1.05E(4), 2.03C or 2.03D, or any default with respect to any covenant contained in the Sections of this Deed of Trust pertaining to environmental matters including Section 1.05E,
(5) relating to or as a result of any default with respect to Grantor's covenant to pay Impositions, pursuant to Section 1.02 hereof, or insurance premiums, pursuant to Section 1.03 hereof other than Impositions or insurance premiums accruing during periods after which Grantor no longer has title to the Secured Property by reason of foreclosure of this Deed of Trust or tender of a deed in lieu of foreclosure of this Deed of Trust to Beneficiary or with respect to Grantorβs covenant to obtain and maintain the insurance, including without limitation, the Terrorism Insurance, required by this Deed of Trust through the date of foreclosure of this Deed of Trust or the date Grantor tenders a deed in lieu of foreclosure of this Deed of Trust to Beneficiary of the Secured Property,
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(6) arising from, in respect of, as a consequence of, or in connection with: (1) the existence of any circumstance or the occurrence of any action described in Section 1.05E(1), (2) claims asserted by any Person (including any Governmental Agency) in connection with, or in any way arising out of, the presence, storage, use, disposal, generation, transportation or treatment of any Hazardous Material in, on, or under or about the Secured Property, or (3) the violation or claimed violation of any law relating to any Hazardous Material or any other Environmental Requirement in regard to the Secured Property, regardless of whether or not such violation or claimed violation occurred prior to or after the date of this Deed of Trust or whether or not such violation or claimed violation occurred prior to or after the time that Grantor became the owner of the Secured Property, and/or
(7) as a result of any intentional, bad faith waste of the Secured Property committed by Grantor or its agents (such damages to include all repair costs incurred by Beneficiary), (For purposes of this subparagraph, βbad faith wasteβ is intended to mean the neglect or misconduct of Grantor resulting in material damage to the Secured Property or any portion thereof);
(B) all outstanding principal, interest and other Obligations, including the Make-Whole Amount:
(1) if there shall be a violation of Section 1.11 of this Deed of Trust that is not waived or consented to by Beneficiary in writing and/or
(2) in the event that (1) any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by, consented to or acquiesced in by Grantor or any Guarantor and/or if any proceeding for the dissolution, liquidation or receivership of Grantor or any Guarantor shall be instituted by Grantor or any Guarantor and/or (2) Grantor or any Guarantor shall be the subject of any petition or proceeding for an involuntary bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law and/or the subject of any liquidation, dissolution, receivership or other similar proceeding, in which Grantor or any Guarantor or any affiliate of such parties colludes with, or otherwise assists, the petitioning party or solicits or causes to be solicited petitioning creditors; and/or
(3) if there shall be a violation of Section 5.20 of this Deed of Trust and/or
4) if this Deed of Trust or any of the other Loan Instruments are deemed fraudulent conveyances or preferences or are otherwise deemed void pursuant to any principles limiting the rights of creditors, whether such claims, demands or assertions are made under the United States Bankruptcy Code (as amended or replaced from time to time), including, without limitation, under Sections 544, 547 or 548 thereof, or under any applicable state fraudulent conveyance statues or similar laws; and
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(C) in the event of a loss which would be covered by the Terrorism Insurance required by the Loan Instruments, an amount equal to the deductible on such Terrorism Insurance, which amount shall either be applied by Beneficiary to the debt secured by this Deed of Trust or disbursed by Beneficiary for the repair and restoration of the Secured Property, all in accordance with the terms of the Loan Instruments.
The restriction on enforcement contained in the first sentence of this Section 5.18 shall not apply to the Environmental Indemnity Agreement of even date herewith executed by Xxxxxxx and the other indemnitors, if any, in favor of Beneficiary and/or to the obligations of any Guarantor. It is expressly understood and agreed, however, that nothing contained in this Section 5.18 shall (y) in any manner or way constitute or be deemed to be a release of the Obligations or otherwise affect or impair the enforceability of the liens, assignments, rights and security interests created by this Deed of Trust or any of the other Loan Instruments or any future advance or any related agreements or (z) preclude Beneficiary from foreclosing this Deed of Trust or from exercising its other remedies set forth in this Deed of Trust or the Assignment, or from enforcing any of its rights and remedies in law or in equity (including injunctive and declaratory relief, restraining orders and receivership proceedings), except as provided in this Section 5.18. All matters as to which this Section 5.18 provides that Grantor is personally liable shall be referred to herein as the βNon-Recourse Exceptionsβ.
5.19 Non-Business Days. If any payment required hereunder or under any other Loan Instrument becomes due on a Saturday, Sunday, or legal holiday in the state in which the Premises are located, then such payment shall be due and payable on the immediately following business day.
5.20 Single Purpose Entity. Grantor represents, warrants and covenants that at all times since its formation and thereafter:
(A) Each of Grantor and its general partner or managing member, as applicable, does not own and will not own, either directly or indirectly, any asset or property other than (1) the Secured Property, (2) with respect to Grantor, incidental personal property necessary for the ownership or operation of the Secured Property and (3) with respect to the general partner or managing member of Grantor, incidental personal property necessary for the ownership or operation of Grantorβs general partner or managing member,
(B) Each of Grantor and its general partner or managing member, as applicable, has not engaged in and will not engage in any business other than the ownership, management and operation of the Secured Property (with respect to Grantor) or the ownership of the general partnership or managing member interest in Grantor (with respect to Grantorβs general partner or managing member, as applicable), and each of Grantor and its general partner or managing member, as applicable, will conduct and operate its business as presently conducted and operated.
(C) Each of Grantor and its general partner or managing member, as applicable, has not entered and will not enter into any contract or agreement with any affiliate of Grantor, any constituent party of Grantor or any affiliate of any constituent party, except upon terms and conditions that are intrinsically fair, commercially reasonable and substantially similar to those that would be available on an arms-length basis with unaffiliated third parties.
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(D) Each of Grantor and its general partner or managing member, as applicable, has not incurred and will not incur any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (1) the Obligations and (2) trade and operational debt incurred in the ordinary course of business with trade creditors in amounts as are normal and reasonable under the circumstances provided that such debt is paid within sixty (60) days of the date it is incurred. No indebtedness other than the Obligations may be secured (subordinate or pari passu) by the Secured Property.
(E) Each of Grantor and its general partner or managing member, as applicable, has not made and will not make any loans or advances to any third party (including any affiliate, constituent party or any affiliate of any constituent party), and have not and will not acquire obligations or securities of its affiliates or any constituent party.
(F) Each of Grantor and its general partner or managing member, as applicable, has been, is and intends to remain solvent and each of Grantor and its general partner or managing member, as applicable, have and will pay its own debts and liabilities from its assets (to the extent of such funds and assets), as the same shall become due.
(G) Each of Grantor and its general partner or managing member, as applicable, has done or caused to be done and will do or cause to be done all things necessary to observe organizational formalities and preserve its existence, and each of Grantor and its general partner or managing member, as applicable, has not and will not, nor has Grantor or its general partner or managing member, as applicable, permitted nor will Grantor or its general partner or managing member, as applicable, permit any of its constituent parties, to amend, modify or otherwise change the partnership certificate, partnership agreement, articles of incorporation, bylaws, articles of organization, operating agreement, trust agreement or other organizational document of Grantor, its general partner or managing member, as applicable, or such constituent party in a manner which would result in a breach of any of the representations, warranties or covenants set forth in this Section 5.20 or in a manner that would otherwise adversely affect Grantorβs and its general partnerβs or managing memberβs, as applicable, single purpose status.
(H) Each of Grantor and its general partner or managing member, as applicable, has and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, any constituent party and any other Person; provided, however, Grantor or its general partner or managing member, as applicable, may include its financial statements as part of a consolidated financial statement if (i) such statements contain a notation that makes clear that Grantor or its general partner or managing member, as applicable is a separate entity and that the assets and credit of Grantor or its general partner or managing member, as applicable, are not available to satisfy liabilities of any other Person and that the assets and credit of such other Person are not available to satisfy liabilities of Grantor or its general partner or managing member, as applicable; each of Grantor and its general partner or managing member, as applicable, has and will file its own tax returns as required by applicable state and federal law; each of Grantor and its general partner or managing member, as applicable, has maintained and shall maintain its books, records, resolutions and agreements as official records.
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(I) Each of Grantor and its general partner or managing member, as applicable, has been and will be, and at all times has and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any affiliate of Grantor or its general partner or managing member, as applicable, any constituent party of Grantor or its general partner or managing member, as applicable, or any affiliate of any constituent party), has corrected and will correct any known misunderstanding regarding its status as a separate entity, has conducted and will conduct business in its own name, has not identified and shall not identify itself or any of its affiliates as a division or part of the other and has maintained and shall maintain and utilize separate stationery, invoices and checks.
(J) Each of Grantor and its general partner or managing member, as applicable, has not assumed or guaranteed and will not assume or guaranty the debts of any other Person, has not held and will not hold itself out to be responsible for the debts of any other Person, and has not and will not otherwise pledge its assets for the benefit of any other Person or hold out its credit as being available to satisfy the obligations of any other Person.
(K) Each of Grantor and its general partner or managing member, as applicable, has maintained and intends to maintain adequate capital as reasonably determined by Grantor for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(L) Neither Grantor nor its general partner, or nor its managing member, as applicable, nor any of their respective constituent parties has caused or will cause or permit the dissolution, winding up, liquidation, consolidation or merger in whole or in part, of Grantor or its general partner or managing member, as applicable; and neither Grantor nor its general partner, nor its managing member, as applicable, nor any of their respective constituent parties has disposed or will dispose of all or substantially all of the assets of Grantor or its general partner or managing member, as applicable, and has not changed and will not change Grantorβs or its general partnerβs or managing memberβs, as applicable, legal structure.
(M) Each of Grantor and its general partner or managing member, as applicable, has not commingled and will not commingle the funds and other assets of Grantor or its general partner or managing member, as applicable, with those of any affiliate or constituent party or any other Person.
(N) Each of Grantor and its general partner or managing member, as applicable, have maintained and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any affiliate or constituent party, or any other Person.
(O) Each of Grantor and its general partner or managing member, as applicable, does not and will not hold itself out to be responsible for the debts or obligations of any other Person.
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(P) Each of Grantor and its general partner or managing member, as applicable, does and shall continue to (i) allocate fairly and reasonably any overhead and expense for office space shared with any affiliated Person, (ii) pay any liabilities, including salaries of its employees, out of its own funds and not from funds of any affiliated Person and/or (iii) maintain a sufficient number of employees (which may be zero) in light of its contemplated business operations.
(Q) Each of Grantor and its general partner or managing member, as applicable shall not, without the prior unanimous consent of all of Grantorβs and its general partnerβs or managing memberβs, as applicable, (i) members and managers (in the event that Grantor, or its general partner or managing member, as applicable is a limited liability company), (ii) partners (in the event that Grantor or its general partner or managing member, as applicable, is a general partnership), (iii) general partner (in the event that Grantor or its general partner or managing member, as applicable, is a limited partnership) or (iv) shareholders or board of directors (in the event that Grantor or its general partner or managing member, as applicable, is a corporation) and of the Independent Director (as defined below) or Independent Manager (as defined below), as applicable, institute proceedings to be adjudicated bankrupt or insolvent, or consent to the institution of such proceedings against it, or file a petition seeking, or consent to, reorganization or relief, under any chapter of the Bankruptcy Code (Title 11 of the United States Code), as amended, or any other bankruptcy or similar laws, or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator or similar official of it or of a substantial part of its assets or property, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing. Without limiting the foregoing and notwithstanding any other provision of this Deed of Trust or of any of the organizational documents of Grantor or any provision of law that otherwise so empowers the Grantor, so long as any Obligations are outstanding, Grantor shall not be authorized or empowered to, nor shall Grantor, without the prior unanimous written consent of the Independent Manager and/or Independent Director, as the case may be, institute proceedings to have Grantor adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against Grantor or file a voluntary petition seeking, or consent to, reorganization or relief with respect to Grantor under any applicable federal or state law relating to bankruptcy, or seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of Grantor or a substantial part of its property, or make any assignment for the benefit of creditors of Grantor, or admit in writing Grantorβs inability to pay its debts generally as they become due, or to the fullest extent permitted by law, to take any action in furtherance of any such action. To the fullest extent permitted by law, for so long as any Obligations are outstanding, Grantor shall not be authorized or empowered, nor shall Grantor consolidate, merge, dissolve, liquidate or sell all or substantially all of Grantorβs assets (other than such sales, if any, as are permitted hereunder).
(R) Each of Grantor and its general partner or managing member, as applicable, shall not violate or cause to be violated the assumptions made with respect to Grantor and its general partner or managing member, as applicable, and their respective direct or indirect constituent entities in any opinion letter pertaining to substantive consolidation delivered to Beneficiary in connection with the Loan, if any.
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(S) Within forty-five (45) days after the end of each fiscal quarter of Grantor, Grantor shall deliver to Beneficiary a certification executed by an officer of Grantor certifying to Beneficiary that, as of such date, Grantor and its general partner or managing member, as applicable, complies with the provisions of Section 5.20 of this Deed of Trust.
(T) Each of Grantor and its general partner(s) or managing member(s), as applicable, shall be formed in Delaware; and at all times, Grantorβs and its general partner(s)β or managing memberβs, as applicable, limited liability company agreement, limited partnership agreement or articles or incorporation, as applicable, shall contain the provisions set forth in Section 5.20(A)-(U) of this Deed of Trust or as otherwise approved in writing by Beneficiary. So long as any Obligations are outstanding, none of such instruments shall be amended, altered or changed without the prior written consent of Beneficiary.
(U) In the event that Grantor is a limited liability company, Grantor shall at all times cause there to be (i) at least one duly appointed manager (an βIndependent Managerβ) of Grantor, and (ii) unless the managing member is an Acceptable Delaware LLC, a corporation or other entity approved by Beneficiary, at least one springing non-economic member that will become a member of Grantor upon the dissolution or withdrawal or similar event as to the sole remaining member of Grantor and that will satisfy the requirements of Delaware law such that the dissolution or withdrawal or similar event as to the sole remaining member of Grantor will not cause the dissolution of Grantor (the βSpringing Memberβ). In the event that Grantor is a corporation, Grantor shall at all times cause there to be at least one duly appointed director (an βIndependent Directorβ) of Grantor. In the event that Grantor is a partnership, in the case of a limited partnership, Grantor shall have as its only general partner (and in the case of a general partnership, Grantor shall have as each of its general partners), a limited liability company or corporation that complies with the provisions of Sections 5.20(A)-(U) of this Deed of Trust. The Independent Manager or Independent Director, as applicable, shall be satisfactory to Beneficiary, and must be a natural person employed by, or an entity owned and controlled by a nationally recognized corporate service provider and shall not at the time of initial appointment, nor at any time during the preceding five (5) years have been: (1) a stockholder, director, officer, employee, partner, attorney or counsel of Grantor, or any affiliate of Grantor; (2) a customer, supplier or other person who derives more than ten percent (10%) of its purchases or revenues from its activities with Grantor or any affiliate of Grantor; (3) a Person or other entity controlling or under common control with any such stockholder, partner, customer, supplier or other Person; or (4) a member of the immediate family of any such stockholder, director, officer, employee, partner, customer, supplier or other Person. As used in this paragraph, the term βcontrolβ means the possession, directly or indirectly, of the power to direct or cause the direction of management, policies or activities of a Person or entity, whether through ownership of voting securities, by contract or otherwise. The Independent Managerβs, Springing Memberβs and/or Independent Directorβs vote shall be required only for Material Actions (as defined below) and those matters specifically requiring its vote in Grantorβs organizational documents, all as approved by Beneficiary. As used herein, βMaterial Actionsβ shall mean (a) any proposed insolvency or bankruptcy proceeding of Grantor, (b) any dissolution or liquidation of Grantor, and (c) any amendment or modification of any provision of Grantorβs organizational documents relating to company purpose or Grantorβs bankruptcy-remote status. The affirmative vote or written consent of the Independent Manager, Springing Member or Independent Director, as applicable, shall be required for the Grantor to approve or take any Material Action. No termination or change of the Independent Manager, Springing Member or Independent Director, as applicable, shall be made without giving Beneficiary at least five (5) Business Days prior written notice, which notice shall include a copy of a resume for such proposed replacement Independent Manager, Springing Member or Independent Director, as applicable, that reflects that such individual meets the requirements contained herein; provided further, that Beneficiary shall have the right to object to the appointment of said replacement and in the event of such objection, the proposed replacement shall not be admitted. Notwithstanding the foregoing, any current Independent Manager, Springing Member or Independent Director, as applicable, that receives notice of the termination of its duties shall provide a copy of said notice to Beneficiary within five (5) days of receipt thereof. To the fullest extent permitted by applicable law, and notwithstanding any duty otherwise existing at law or in equity, the Independent Manager, Springing Member or Independent Director, as applicable, shall consider only the interests of Grantor (including its creditors) and the members, partners or shareholders of Grantor, as applicable (βConstituent Ownersβ), in acting or otherwise voting on any Material Actions or matters provided for in Grantorβs organizational documents (which such fiduciary duties to the Constituent Owners and Grantor (including its creditors), in each case, shall be deemed to apply solely to the extent of their respective economic interests in such entity, exclusive of (x) all other interests (including, without limitation, all other interests of the Constituent Owners), (y) the interests of other affiliates of the Constituent Owners or of Grantor, as applicable, and (z) the interests of any group of affiliates of which the Constituent Owners or Grantor, as applicable, is a part)). Regardless of the solvency of Grantor, the Independent Manager, Springing Member or Independent Director, as applicable, shall owe duties to protect creditors in the enforcement of their contractual rights, including all remedies. Other than as provided above, the Independent Manager, Springing Member or Independent Director, as applicable, shall not have any fiduciary duties to any Constituent Owners, any directors or managers of Grantor, as applicable, or any other Person, provided, however, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing under applicable law. To the fullest extent permitted by applicable law, an Independent Manager, Springing Member or Independent Director shall not be liable to Grantor, any Constituent Owner or any other person for breach of contract or breach of duties (including fiduciary duties), unless such Independent Manager, Springing Member or Independent Director acted in bad faith or engaged in willful misconduct. All other matters as to the Independent Manager, Springing Member and/or Independent Director shall be set forth in the organizational documents of Grantor and shall be satisfactory to Beneficiary.
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ARTICLE VI
The provisions of this Article VI are an integral part of this Deed of Trust. In the event of any inconsistencies between the terms and conditions of this Article VI and the other provisions of this Deed of Trust, the terms and conditions of Article VI shall be controlling.
6.01 Maturity Date. The Maturity Date of the Note, unless renewed or extended, is February 10, 2024.
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6.02 Attorneysβ Fees . In case the Note or this Deed of Trust or any other Loan Instrument should be placed in the hands of an attorney at law for collection or enforcement, Grantor agrees to pay all costs of collection or enforcement including reasonable attorneysβ fees. Notwithstanding anything herein or in any other Loan Instrument to the contrary, whenever the term βreasonable attorneysβ feesβ or other similar phrase is used it shall mean attorney and paralegal fees actually incurred (based on the actual number of hours worked by legal counsel and paralegals multiplied by the usual and customary hourly rate then in effect), notwithstanding any statutory presumption to the contrary. The foregoing provision shall not be deemed to limit the obligation to pay out-of-pocket expenses and costs as provided in the Loan Instruments.
6.03 Interest Before and After Judgment . Following an Event of Default, the Obligations evidenced by the Note, the other Obligations, all accrued and unpaid interest thereon and all other sums evidenced and/or secured by the Loan Instruments shall bear interest at the Increased Rate both before and after any judgment on the Obligations to the extent permitted by applicable law.
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6.04 Power of Sale . Upon the occurrence of an Event of Default, the Beneficiary may notify the Trustee to exercise the power of sale granted hereunder and upon such notification it shall be lawful for and the duty of the Trustee, and the Trustee is hereby authorized and empowered after giving notice to Grantor as required by applicable law and any other party as required by applicable law, and after publishing notice of the time and place of sale and the Secured Property to be sold at least three (3) different times in any newspaper published in a county in which the Secured Property is located, the first of which publications shall be at least twenty-one (21) days prior to said sale, shall proceed to sell the Secured Property, at public auction to the highest bidder for cash and in bar of the right of redemption (statutory or otherwise) including, without limitation, all rights under Tennessee Code Annotated Β§66-8-101(3), the equity of redemption, homestead, dower, elective or distributive share, any right of appraisement or valuation and all other rights and exemptions of any kind, all of which are hereby expressly waived. In the event of a sale of the Secured Property or any part thereof, the proceeds of sale shall be applied in the following order of priority: (i) to the payment of all costs and expenses for and in connection with the effecting of such sale and all proceedings for such sale, including the expense of any litigation, reasonable compensation for the Trusteeβs services and including reasonable attorneyβs fees incurred by the Trustee for legal services actually performed; (ii) to the reimbursement of Beneficiary for all sums expended or incurred by the Beneficiary under the terms of this Deed of Trust or to establish, preserve or enforce this Deed of Trust or to collect or enforce the Obligations secured hereby (including, without limitation, reasonable attorneysβ fees as provided herein or in any instruments evidencing the Obligations secured hereby); (iii) to the payment of the Obligations secured hereby and interest thereon and all other indebtedness hereby secured; and (iv) the balance, if any, shall be paid to the parties lawfully entitled thereto. In the event of any sale under this Deed of Trust or pursuant to any order in any judicial proceedings or otherwise, the Secured Property or any part thereof may be sold, in one parcel or in such parcels, manner or order as Beneficiary, in its sole discretion may direct. At Beneficiaryβs option, a sale may be conducted alternately, as a single parcel or in tracts, to be closed under whichever method yields a greater total price. If the Secured Property is located in two or more counties, it may all be sold in one of the counties if Trustee so elects. Otherwise, the sale shall occur in the county in which the Secured Property is located unless Trustee, in its reasonable discretion, elects to conduct the sale elsewhere. The sale shall be held at such location in the county as the foreclosure notice may specify. One or more exercises of the power of sale provided for herein shall not extinguish or exhaust said power until the entire Secured Property has been sold or the indebtedness secured hereby has been paid in full. Trustee is hereby released from all obligations imposed by statute that can be waived including any requirement of qualification, oath or bond. It is agreed that Beneficiary, in the event of any sale of the Secured Property, may bid and buy as any third person might, but Beneficiary shall not be required to present cash at the sale except to the extent, if any, by which Beneficiaryβs bid exceeds the amount of the indebtedness secured hereby, including all expenses of collection and sale provided for herein. Trustee may delegate, in its sole discretion, any authority possessed under this Deed of Trust, including the authority to conduct a foreclosure sale. Without limiting the foregoing, Trustee may retain a professional auctioneer to preside over the bidding, and the customary charge for the auctioneerβs services shall be paid from sale proceeds as an expense of sale. If prior to any foreclosure sale a third party represents to the Trustee in writing that such party holds the next junior lien to this Deed of Trust (whether by judgment lien, junior deed of trust or otherwise), the Trustee may disburse surplus proceeds to such third party in an amount not to exceed the amount of lien alleged by the third party in its written statement to the Trustee. A foreclosure sale may be adjourned by Trustee and may be reset at a later time and/or date by announcement at the time and place of the originally advertised sale or prior announcement and without any further publication. The foreclosure sale of the Secured Property shall be conducted for cash to be tendered upon the conclusion of the bidding; provided, however, Trustee may accept a check issued or certified by a local bank as consideration for the sale and if, in its sole discretion, Trustee announces before or after bidding that, upon the failure of the high bidder to complete the sale for cash within one (1) hour, the Secured Property may be sold to the second highest bidder, and if the high bidder should subsequently fail to complete the purchase within that time, then Trustee may, at its option, close the sale of the Secured Property to the second highest bidder. Xxxxxxx further agrees that, in the event of any sale hereunder, it will at once surrender possession of the Secured Property, will from the moment of sale be the tenant at will of the purchaser, will be removable by process and will be liable to pay said purchaser the reasonable rental value of said Secured Property after such sale. Beneficiary or Trustee may, after default, advise third parties of the amount (or estimated amount) of principal, interest and expenses that will be outstanding as of the date of any foreclosure sale and may share any other available information regarding the Secured Property. Following the occurrence of a default hereunder, any βreleaseβ provision included herein or in any other document whereby Beneficiary agreed to release all or part of the Property upon the payment of less than all of the Secured Indebtedness shall become void, and Beneficiary shall no longer be obligated to release any of the Secured Property until the Secured Indebtedness has been paid in full. Xxxxxxx agrees that Grantor will not bid at any sale hereunder and will not allow others to bid on Xxxxxxxβs behalf unless, at the time of sale, Grantor has cash sufficient to pay at the sale the amount of its bid. The Trustee shall execute a conveyance of all of the Grantorβs interest in the Secured Property to the purchaser at such sale and deliver possession to such purchaser, which the Grantor warrants shall be given without obstruction, hindrance or delay.
6.05 Environmental Laws. The listing of Environmental Laws in Paragraph (b) of the definition of βHazardous Materialsβ of this Deed of Trust, is amended to also include the laws of the State regulating or covering those substances defined as "hazardous", "toxic", "noxious", "waste", "pollutant", "contaminant" or other similar term, under any applicable local and/or State statute and in any other regulations promulgated pursuant to such laws including, without limitation, any toxic or hazardous waste, material or substance or oil or pesticide listed in, covered by, or regulated pursuant to any State Statutes, as the same may be amended from time to time; and the regulations promulgated pursuant to said laws, all as amended.
WCSR 31223371 | 61 | Deed of Trust Loan No. 374-0518 |
6.06 Substitution of Trustee. Beneficiary shall at any time have the irrevocable right to remove the Trustee herein named without notice or cause and to appoint his successor by an instrument in writing, duly acknowledged, in such form as to entitle such written instrument to record in Tennessee, and in the event of the death or resignation of the Trustee herein named, Beneficiary shall have the right to appoint his successor by such written instrument, and any Trustee so appointed shall be vested with the title to the Secured Property hereinbefore described, and shall possess all the powers, duties and obligations herein conferred on the Trustee in the same manner and to the same extent as though he were named herein as Trustee.
6.07 Waiver of Redemption Rights, Exemptions, Etc. Any sale of any or all the Secured Property pursuant to the power of sale or judicial sale provided for herein or in realization of the security interest granted herein shall be made free from the equity of redemption, statutory right of redemption, including, without limitation, all rights under Tennessee Code Annotated Β§66-8-101(3), homestead, dower, curtesy, exemption rights, and all other rights and interest of Grantor, all of which are hereby expressly waived.
6.08 Deed of Trust as Financing Statement. As to those items of personal property which are or are to become affixed to the Secured Property and/or the Improvements, and all products and proceeds thereof, this Deed of Trust is and shall be effective as a Financing Statement filed as a fixture filing as and from the date of its recordation in the real estate records of the county in which the real property is situated. The name of the record owner of the real property and improvements is the Grantor identified on the first page of this Deed of Trust. The name and address of the Grantor, as debtor, is set forth in Section 5.07 of this Deed of Trust. The name and address of Beneficiary, as secured party, and from whom information concerning the security interest created herein may be obtained, is set forth in Section 5.07 of this Deed of Trust. The provisions set forth in the Granting Clauses of this Deed of Trust describe the types and items of the personal property affixed or to be affixed to the Secured Property and the Improvements. The fixtures are related to the real estate described in Exhibit A attached hereto and incorporated herein by reference. The Grantor is a limited liability company organized under the laws of the State of Delaware. The organizational identification number of the Grantor, as debtor, is 5323439. This Deed of Trust shall remain in effect as a fixture filing until this Deed of Trust is released or satisfied of record.
WCSR 31223371 | 62 | Deed of Trust Loan No. 374-0518 |
6.09 Security Agreement. This Deed of Trust is both a real property Deed of Trust and a βsecurity agreementβ within the meaning of the Uniform Commercial Code of the State. The Secured Property includes both real and personal property and all other rights and interests, whether tangible or intangible in nature, of Grantor in the Secured Property. Grantor, by executing and delivering this Deed of Trust grants to Beneficiary and Trustee (to the extent provided herein), as security for the Obligations, a security interest in the Secured Property to the full extent that the Secured Property may be subject to the Uniform Commercial Code. If an Event of Default shall occur, Beneficiary and/or Trustee, in addition to any other rights and remedies which it may have, shall have and may exercise immediately and without demand, any and all rights and remedies granted to a secured party upon default under the Uniform Commercial Code, including, without limiting the generality of the foregoing, the right to sell the Personal Property at public or private sale, the right to take possession of the Personal Property or any part thereof, and to take such other measures as Beneficiary and/or Trustee may deem necessary for the care, protection and preservation of the Personal Property. Upon request or demand of Beneficiary and/or Trustee, Grantor shall at its expense assemble the Personal Property and make it available to Beneficiary and/or Trustee at a convenient place acceptable to Beneficiary and/or Trustee. Grantor shall pay to Beneficiary and Trustee on demand any and all expenses, including legal expenses and attorneysβ fees and disbursements, incurred or paid by Beneficiary and Trustee in protecting its interest in the Personal Property and in enforcing its rights hereunder with respect to the Personal Property. Any notice of sale, disposition or other intended action by Beneficiary and/or Trustee with respect to the Personal Property sent to Grantor in accordance with the provisions hereof at least ten (10) days prior to such sale, disposition or action shall constitute reasonable notice to Grantor. The proceeds of any disposition of the Personal Property, or any part thereof, may be applied by Beneficiary to the payment of the Obligations in such priority and proportions as Beneficiary in its discretion shall deem proper.
[Signature Page Follows]
WCSR 31223371 | 63 | Deed of Trust Loan No. 374-0518 |
[Signature Page - Deed of Trust]
IN WITNESS WHEREOF, Xxxxxxx has executed this Deed of Trust under seal as of the date first above written.
GRANTOR: |
XX XXXXXX CREEK, LLC, | |
a Delaware limited liability company (SEAL) |
By: | Trade Street Operating Partnership, LP, a Delaware | |
limited partnership, its Sole Member (SEAL) |
By: | Trade Street OP GP, LLC, a Delaware limited | |
liability company, its general partner (SEAL) |
By: | Trade Street Residential, Inc., a Maryland | |
corporation, its sole member (SEAL) |
By: | /s/ Xxxxxxx Xxxx | (SEAL) | |
Name: | Xxxxxxx Xxxx | ||
Title: | Chief Financial Officer |
STATE OF FLORIDA | ) | |
COUNTY OF MIAMI DADE | ) |
Before me, the undersigned, a Notary Public in and for the County and State aforesaid, personally appeared Xxxxxxx Xxxx, with whom I am personally acquainted (or proved to me on the basis of satisfactory evidence), and who upon oath acknowledged himself to be the Chief Financial Officer of Trade Street Residential, Inc., a Maryland corporation, which is the sole member of Trade Street OP GP, LLC, a Delaware limited liability company, which is the general partner of Trade Street Operating Partnership, LP, a Delaware limited partnership, which is sole member of XX Xxxxxx Creek, LLC, a Delaware limited liability company, the within named bargainor, and that he, as such Chief Financial Officer, being authorized so to do, executed the foregoing instrument for the purposes therein contained, by signing the name of the limited liability company by himself as Chief Financial Officer of Trade Street Residential, Inc., which is the sole member of the Trade Street OP GP, LLC, which is the general partner of Trade Street Operating Partnership, LP, which is the sole member of XX Xxxxxx Creek, LLC.
Witness my hand and seal, this the 6th day of January, 2014.
Xxxxxxx Xxxxxx | ||
NOTARY PUBLIC | ||
My Commission Expires: | ||
[Notarial Seal] | ||
August 2, 2014 | ||
Commission #EE013802 |
WCSR 31223371 | Deed of Trust Loan No. 374-0518 |
EXHIBIT A
Land
BEING A SURVEY OF PART OF PARCEL "A" OF THE FOREST HILL ASSOCIATES PROPERTY AS RECORDED IN BOOK 6245, PAGE 84, ALSO BEING PART OF THE PROPERTY SHOWN ON THE OUTLINE PLAN FOR FOREST HILL HEIGHTS AMENDED AS RECORDED IN PLAT BOOK 252, PAGE 1 AT THE SHELBY COUNTY REGISTER'S OFFICE, LOCATED IN MEMPHIS, SHELBY COUNTY, TENNESSEE AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE WEST LINE OF FOREST HILL-XXXXX ROAD (114.00 FOOT WIDE PUBLIC RIGHT-OF-WAY) WITH THE SOUTH LINE OF WINCHESTER ROAD (140.00 FOOT WIDE PUBLIC RIGHT-OF-WAY); THENCE N86Β°23'02"W ALONG THE SOUTH LINE OF SAID WINCHESTER ROAD A DISTANCE OF 1192.90 FEET TO THE POINT OF BEGINNING; THENCE ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF 30.00 FEET, AN ARC LENGTH OF 47.12 FEET (CHORD S41Β°23'02"E - 42.43 FEET) TO THE POINT OF TANGENCY, SAID POINT LIES ON THE PROPOSED WEST RIGHT-OF-WAY LINE OF A 68.00 FOOT WIDE ROAD; THENCE S03Β°36'58" W ALONG THE PROPOSED WEST LINE OF SAID ROAD A DISTANCE OF 428.41 FEET TO A POINT OF CURVATURE; THENCE CONTINUING ALONG THE PROPOSED WEST LINE OF SAID ROAD ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 634.00 FEET, AN ARC LENGTH OF 580.60 FEET (CHORD S22Β°37'09"E - 560.53 FEET) TO A POINT; THENCE S41Β°08'45"w AND LEAVING THE PROPOSED WEST LINE OF SAID ROAD A DISTANCE OF 183.79 FEET TO A POINT; THENCE N86Β°23'02"W A DISTANCE OF 849.48 FEET TO A POINT ON THE EAST LINE OF THE PROPERTY SHOWN ON THE FINAL PLAT FOR PHASE 4 - AREA "B" OF THE WINDYKE PARK PLANNED DEVELOPMENT AND THE FINAL PLAT FOR THE WINDYKE PARK SOUTH PLANNED DEVELOPMENT AS RECORDED IN PLAT BOOK 207, PAGE 22 AT SAID REGISTER'S OFFICE; THENCE N02Β°08'07"E ALONG THE EAST LINE OF THE PROPERTY SHOWN IN PLAT BOOK 207, PAGE 22 AND ALONG THE EAST LINE OF THE PROPERTY SHOWN ON THE FINAL PLAT FOR PHASE 2 - AREA "B" OF THE WINDYKE PARK PLANNED DEVELOPMENT AS RECORDED IN PLAT BOOK 250, PAGE 17 A DISTANCE OF 1107.32 FEET TO A FOUND IRON PIN AT THE NORTHWEST CORNER OF SAID PHASE 2 (PLAT BOOK 250, PAGE 17), SAID POINT LIES ON THE SOUTH LINE OF SAID WINCHESTER ROAD; THENCE S86Β°23'02"E ALONG THE SOUTH LINE OF SAID WINCHESTER ROAD A DISTANCE OF 712.27 FEET TO THE POINT OF BEGINNING.
WCSR 31223371 | Deed of Trust Loan No. 374-0518 |