EXHIBIT 10.5
AMENDED AND RESTATED
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DEED OF TRUST NOTE
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$15,500,000.00 As of May 7, 2004
THIS AMENDED AND RESTATED DEED OF TRUST NOTE is made and entered into as of
the 7th day of May, 2004, by and between ARGO ORCHARD RIDGE, LC, a Maryland
limited liability company ("Argo") and XXXXXXX LAND LIMITED PARTNERSHIP, a
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Virginia limited partnership ("Xxxxxxx", Xxxx.and Fougler herein referred to
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individually and collectively as "Maker") jointly and severally, and UBS REAL
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ESTATE INVESTMENTS INC., a Delaware corporation ("Payee").
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PRELIMINARY STATEMENTS
A. A loan was made to Maker in the original principal amount of ELEVEN
MILLION THREE HUNDRED NINETY THOUSAND AND NO/100 DOLLARS ($11,390,000.00), the
repayment of which is evidenced by a Promissory Note dated September 28, 2000
(the "Original Note").
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B. The Original Note is secured by a Deed of Trust, Assignment and Security
Agreement dated September 28, 2000, and recorded among the Land Records of
Xxxxxxxxxx County, Maryland in Liber 18441, folio 126 (the " Original Deed of
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Trust") on certain improved real property located in Gaithersburg, Maryland.
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C. Payee has purchased the Original Note from its holder.
D. Maker has requested and Payee has agreed to make certain amendments to
the Original Note, including changing the interest rate and the terms of
payment, and increasing the original principal amount from ELEVEN MILLION THREE
HUNDRED NINETY THOUSAND AND NO/100 DOLLARS ($11,390,000.00) to FIFTEEN MILLION
FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($15,500,000.00). The Original Note is
being amended and restated in its entirety to reflect such amendments.
E. The Original Deed of Trust is concurrently being amended and restated
pursuant to the terms of the Security Instrument (hereinafter defined).
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Maker and Payee agree that the Original Note is hereby amended
and restated in its entirety as follows (as amended and restated, the "NOTE"):
For value received, Maker, with an address at 0000 Xxxxxxxxx Xxxx, Xxxxx
000, Xxxxxxxxx, Xxxxxxxx 00000, jointly and severally, promises to pay to the
order of Payee, at its principal place of business at 1285 Avenue of the
Americas, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such place as the holder
hereof may from time to time designate
in writing, the principal sum of FIFTEEN MILLION FIVE HUNDRED THOUSAND AND
NO/100 DOLLARS ($15,500,000.00), in lawful money of the United States of
America, with interest thereon to be computed on the unpaid principal balance
from time to time outstanding at the Interest Rate (as hereinafter defined), and
to be paid in installments as follows:
A. A payment of interest only on the date the Loan (as hereinafter
defined) is funded to Maker, representing interest to be accrued from
the date of such funding through and including May 10, 2004;
B. An interest-only payment (such payment, the " Interest Only Monthly
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Payment Amount") calculated in accordance with the terms of this Note
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on the eleventh day of June, 2004 and on the eleventh day of each
calendar month thereafter (each, a " Payment Date") up to and
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including the eleventh day of May, 2009;
C. A constant payment of $93.529.09 (such amount, the "Monthly P&I
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Payment Amount"; the Interest Only Monthly Payment Amount and the
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Monthly P&I Payment Amount are hereinafter, the " Monthly Debt Service
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Payment Amount" on the eleventh day of June, 2009 and on each Payment
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Date thereafter up to and including the eleventh day of April, 2014;
each of such payments to be applied (a) to the payment of interest
computed at the Interest Rate; and (b) the balance applied toward the
reduction of the principal sum;
and the balance of said principal sum together with all accrued and unpaid
interest thereon shall be due and payable on the eleventh day of May, 2014 (the
"Maturity Date"). Payee shall have the right from time to time, in its sole
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discretion, upon not less than thirty (30) days prior written notice to Maker,
to change the Payment Date to a different calendar day each month which is not
more than five (5) days earlier nor more than five (5) days later than the
eleventh day of each calendar month. Interest on the principal sum of this Note
shall be calculated on the basis of the actual number of days elapsed in the
related interest accrual period over a three hundred sixty (360) day year. The
first interest accrual period hereunder shall commence on and include the date
that principal is advanced hereunder and shall end on and include the next tenth
(10th) day of a calendar month; unless principal is advanced on the tenth (10th)
day of a month, in which case the first interest accrual period shall consist of
only such tenth (10th) day. Each interest accrual period thereafter shall
commence on the eleventh (11th) day of each calendar month during the term of
this Note and shall end on and include the tenth (10th) day of the next
occurring calendar month; provided, however, that if Payee shall have elected to
change the Payment Date as aforesaid, Payee shall have the option, but not the
obligation, to adjust the interest accrual period correspondingly. All amounts
due under this Note shall be payable without setoff, counterclaim or any other
deduction whatsoever.
1. The term "Interest Rate" as used in this Note shall mean a rate of Six
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and 06/100 percent (6.06%) per annum.
2. This Note is evidence of that certain loan made by Payee to Maker
contemporaneously herewith (the "Loan"). This Note is secured by (a) an Amended
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and Restated Deed of Trust, Assignment of Leases and Rents and Security
Agreement of even date herewith given by Maker for the use and benefit of Payee
covering the estate of Maker in certain premises as more particularly described
therein (the "Security Instrument"), (b) an Assignment of Leases and Rents of
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even date herewith executed by Maker in favor of Payee (the "Assignment of
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Leases"), (c) a Cash Management Agreement of even date herewith by and between
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Maker and Payee (the "Cash Management Agreement") and (d) the other Loan
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Documents (as hereinafter defined). The term "Loan Documents" as used in this
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Note relates collectively to this Note, the Security Instrument, the Assignment
of Leases, the Cash Management Agreement and any and all other documents
securing, evidencing, or guaranteeing all or any portion of the Loan or
otherwise executed and/or delivered in connection with this Note and the Loan.
3. If any sum payable under this Note is not paid on the date on which it
is due, Maker shall pay to Payee upon demand an amount equal to the lesser of
five percent (5%) of such unpaid sum or the maximum amount permitted by
applicable law in order to defray a portion of the expenses incurred by Payee in
handling and processing such delinquent payment and to compensate Payee for the
loss of the use of such delinquent payment. If the day when any payment required
under this Note is due is not a Business Day (as hereinafter defined), then
payment shall be due on the first Business Day thereafter. The term "Business
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Day" shall mean a day other than (i) a Saturday or Sunday, or (ii) any day on
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which banking and savings and loan institutions in New York are authorized or
obligated by law or executive order to be closed.
4. The whole of the principal sum of this Note, together with all interest
accrued and unpaid thereon and all other sums due under the Loan Documents (all
such sums hereinafter collectively referred to as the "Debt"), shall without
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notice become immediately due and payable at the option of Payee if any payment
required in this Note is not paid on the date on which it is due or upon the
happening of any other Event of Default (as defined in the Security Instrument).
In the event that it should become necessary to employ counsel to collect or
enforce the Debt or to protect or foreclose the security therefor, Maker also
shall pay on demand all costs of collection incurred by Payee, including
attorneys' fees and costs reasonably incurred for the services of counsel
whether or not suit be brought.
5. Maker does hereby agree that upon the occurrence of an Event of Default
(including upon the failure of Maker to pay the Debt in full on the Maturity
Date), Payee shall be entitled to receive and Maker shall pay interest on the
entire unpaid principal sum and any other amounts due at a rate (the "Default
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Rate") equal to the lesser of (a) the maximum rate permitted by applicable law,
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or (b) five percent (5%) above the Interest Rate. The Default Rate shall be
computed from the occurrence of the Event of Default until the date Maker cures
the Event of Default and such cure is accepted by Payee. This charge shall be
added to the Debt and shall be secured by the Security Instrument. This
paragraph, however, shall not be construed as an agreement or privilege to
extend the date of the payment of the Debt, nor as a waiver of any other right
or remedy accruing to Payee by reason of the occurrence of any Event of Default.
6. This Note may not be prepaid prior to the Maturity Date; provided,
however, Maker shall have the right and option to release the Trust Property (as
defined in the Security Instrument) from the lien of the Security Instrument in
accordance with the terms and provisions set forth in Paragraph 47 of the
Security Instrument (the "Defeasance Option"). Notwithstanding the foregoing
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sentence, Maker shall have the privilege to prepay the entire principal balance
of this Note and any other amounts outstanding on any scheduled payment date on
or after the date that is three (3) months immediately preceding the Maturity
Date (hereinafter, the "Optional Prepayment Date") upon thirty (30) days' prior
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written notice to Payee, without payment of the Yield Maintenance Premium (as
defined in the Security Instrument) or any other premium or penalty so long as
no Event of Default has occurred and is continuing. If prior to the Optional
Prepayment Date and following the occurrence of any Event of Default, Maker
shall tender payment of an amount sufficient to satisfy the Debt at any time
prior to a sale of the Trust Property, either through foreclosure or the
exercise of the other remedies available to Payee under the Security Instrument,
such tender by Maker shall be deemed to be voluntary and Maker shall pay, in
addition to the Debt, the Yield Maintenance Premium, if any, that would be
required under the Defeasance Option.
7. (a) From and after the date hereof, Maker shall cause all Rents (as
defined in the Security Instrument) to be deposited in the Clearing Account (as
defined in the Cash Management Agreement) directly by Tenants at the Trust
Property. Provided that a Sweep Period (as defined in the Cash Management
Agreement) does not exist, Maker shall have the right to cause all available
funds in the Clearing Account to be transferred to an account of the Maker of
the Maker's election. Commencing on the first day of each Collection Period (as
defined in the Cash Management Agreement) during any Sweep Period (as defined in
the Cash Management Agreement), all Rents deposited in the Clearing Account
shall be transferred in accordance with the terms and conditions of the Cash
Management Agreement to the Cash Collateral Account (as defined in the Cash
Management Agreement) and shall be allocated in the following order of priority:
(i) First, to fund the Tax and Insurance Escrow Fund Account (as
established pursuant to the Cash Management Agreement) until
the amount on deposit therein is equal to the amount
required to be deposited in the Tax and Insurance Escrow
Fund on the related Payment Date in accordance with the
terms and conditions of the Security Instrument;
(ii) Next, to fund the Monthly Debt Service Subaccount (as
established pursuant to the Cash Management Agreement) until
the amount on deposit therein is equal to the Monthly Debt
Service Payment Amount;
(iii) Next, to fund the Monthly Debt Service Subaccount with any
other amounts due to the Payee under the Loan Documents not
otherwise addressed by this paragraph;
(iv) Next, to fund the Replacement Escrow Fund Subaccount (as
established pursuant to the Cash Management Agreement) until
the amount on deposit therein is equal to the amount
required to be deposited in the Replacement Escrow Fund (as
defined in the Security Instrument) on the related Payment
Date in accordance with the terms and conditions of the
Security Instrument;
(v) Next, to fund the Rollover Escrow Fund Subaccount (as
established pursuant to the Cash Management Agreement) until
the amount on deposit therein is equal to the amount
required to be deposited in the Rollover Escrow Fund (as
defined in the Security Instrument) on the related Payment
Date in accordance with the terms and conditions of the
Security Instrument; and
(vi) Lastly, and subject to the terms and conditions of the Cash
Management Agreement, to fund the Borrower Remainder
Subaccount (as established pursuant to the Cash Management
Agreement) any Rents remaining after funding the foregoing
allocations.
(b) Nothing in this paragraph 7 shall limit, reduce or otherwise
affect Maker's obligations to make payments of the Monthly Debt Service Payment
Amount, payments to the Tax and Insurance Escrow Fund, the Replacement Escrow
Fund and Rollover Escrow Fund due hereunder and under the other Loan Documents,
whether or not Rents are available to make such payments.
8. It is expressly stipulated and agreed to be the intent of Maker and
Payee at all times to comply with applicable state law or applicable United
States federal law (to the extent that it permits Payee to contract for, charge,
take, reserve, or receive a greater amount of interest than under state law) and
that this paragraph shall control every other covenant and agreement in this
Note and the other Loan Documents. If the applicable law (state or federal) is
ever judicially interpreted so as to render usurious any amount called for under
this Note or under any of the other Loan Documents, or contracted for, charged,
taken, reserved, or received with respect to the Debt, or if Payee's exercise of
the option to accelerate the Maturity Date, or if any prepayment or the exercise
of any Defeasance Option by Maker results in Maker having paid any interest in
excess of that permitted by applicable law, then it is Payee's express intent
that all excess amounts theretofore collected by Payee shall be credited on the
principal balance of this Note and all other Debt and the provisions of this
Note and the other Loan Documents immediately be deemed reformed and the amounts
thereafter collectible hereunder and thereunder
reduced, without the necessity of the execution of any new documents, so as to
comply with the applicable law, but so as to permit the recovery of the fullest
amount otherwise called for hereunder or thereunder. All sums paid or agreed to
be paid to Payee for the use, forbearance, or detention of the Debt shall, to
the extent permitted by applicable law, be amortized, prorated, allocated, and
spread throughout the full stated term of the Debt until payment in full so that
the rate or amount of interest on account of the Debt does not exceed the
maximum lawful rate from time to time in effect and applicable to the Debt for
so long as the Debt is outstanding. Notwithstanding anything to the contrary
contained herein or in any of the other Loan Documents, it is not the intention
of Payee to accelerate the maturity of any interest that has not accrued at the
time of such acceleration or to collect unearned interest at the time of such
acceleration.
9. This Note may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on the part of
Maker or Payee, but only by an agreement in writing signed by the party against
whom enforcement of any modification, amendment, waiver, extension, change,
discharge or termination is sought. Whenever used, the singular number shall
include the plural, the plural the singular, and the words 'Payee" and "Maker"
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shall include their respective successors, assigns, heirs, executors and
administrators. If Maker consists of more than one person or party, the
obligations and liabilities of each such person or party shall be joint and
several.
10. Maker and all others who may become liable for the payment of all or
any part of the Debt do hereby severally waive presentment and demand for
payment, notice of dishonor, protest, notice of protest, notice of nonpayment,
notice of intent to accelerate the maturity hereof and of acceleration. No
release of any security for the Debt or any person liable for payment of the
Debt, no extension of time for payment of this Note or any installment hereof,
and no alteration, amendment or waiver of any provision of the Loan Documents
made by agreement between Payee and any other person or party shall release,
modify, amend, waive, extend, change, discharge, terminate or affect the
liability of Maker, and any other person or party who may become liable under
the Loan Documents for the payment of all or any part of the Debt.
11. (a) Subject to the qualifications below, Payee shall not enforce the
liability and obligation of Maker to perform and observe the obligations
contained in this Note, the Security Instrument or the other Loan Documents by
any action or proceeding wherein a money judgment shall be sought against Maker,
except that Payee may bring a foreclosure action, an action for specific
performance or any other appropriate action or proceeding to enable Payee to
enforce and realize upon its interest under this Note, the Security Instrument
and the other Loan Documents, or in the Trust Property, the Rents, or any other
collateral given to Payee pursuant to the Loan Documents; provided, however,
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that, except as specifically provided herein, any judgment in any such action or
proceeding shall be enforceable against Maker only to the extent of Maker's
interest in the Trust Property, in the Rents and in any other collateral given
to Payee, and Payee, by accepting this Note, the Security Instrument and the
other Loan Documents, agrees that it shall not xxx for, seek or demand any
deficiency judgment against Maker in any such action or proceeding under or by
reason of or under or in connection with this Note, the
Security Instrument or the other Loan Documents. The provisions of this
paragraph shall not, however, (1) constitute a waiver, release or impairment of
any obligation evidenced or secured by any of the Loan Documents; (2) impair the
right of Payee to name Maker as a party defendant in any action or suit for
foreclosure and sale under the Security Instrument; (3) affect the validity or
enforceability of or any guaranty made in connection with the Loan or any of the
rights and remedies of the Payee thereunder; (4) impair the right of Payee to
obtain the appointment of a receiver; or (5) impair the enforcement of the
Assignment of Leases. Notwithstanding anything to the contrary contained in this
Note or in any of the other Loan Documents, Maker shall be fully and personally
liable and subject to legal action to the extent of any loss, damage (including
damage resulting from the diminution in value of the Trust Property as the
result of subsection (iv) below), cost, expense, liability, claim or other
obligation incurred by Payee (including attorneys' fees and costs reasonably
incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation or failure to
disclose a material fact by Maker, any of Maker's officers,
agents, attorneys, principals, general partners, managing
members or employees, or any guarantor or indemnitor in
connection with the Loan, including without limitation, the
origination of the Loan and the performance of Maker's
obligations under the Loan Documents;
(ii) the gross negligence or willful misconduct of Maker;
(iii) physical waste of the Trust Property;
(iv) the breach of any representation, warranty, covenant or
indemnification provision in the Loan Documents concerning
environmental law, hazardous substances or asbestos;
(v) the removal or disposal of any portion of the Trust Property
during the continuance of an Event of Default;
(vi) the misapplication or conversion by Maker of (A) any
insurance proceeds paid by reason of any loss, damage or
destruction to the Trust Property, (B) any awards or other
amounts received in connection with the condemnation of all
or a portion of the Trust Property, (C) any Rents following
an Event of Default, or during a Sweep Period, or (D) any
Rents paid more than one month in advance;
(vii) the failure to pay charges for labor or materials or taxes
or other charges that can create liens on any portion of the
Trust Property;
(viii) all tenant security deposits or other refundable deposits
paid to or held by Maker or any other person or entity in
connection with the Leases (as defined in the Security
Instrument) which are not applied in accordance with the
terms of the applicable Leases;
(ix) the failure to obtain and maintain the fully paid for
Policies (as defined in the Security Instrument) in
accordance with Paragraph 2 of the Security Instrument;
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(x) the failure of Maker or, if Manager is an affiliate of
Maker, Manager to strictly comply with the terms of the Cash
Management Agreement;
(xi) the failure of Maker to strictly comply with the terms and
provisions of Section 10 (mm) of the Security Instrument;
and
(xii) any Tenant in Common commences an action for partition.
(b) In addition, Maker shall be fully and personally liable for,
hereby unconditionally guarantees payment to Payee of, and hereby agrees to pay,
(i) all Rent which may now or hereafter be due under the Xxxxxx Xxxxxx Lease for
the Additional Premises (as such term is defined in Section 49.1 of the Xxxxxx
Xxxxxx Lease) in accordance with Section 49 of the Xxxxxx Xxxxxx Lease if Xxxxxx
Xxxxxx fails to pay Rent for the Additional Premises in accordance with Section
49 of the Xxxxxx Xxxxxx Lease, and (ii) all Rent which may now or hereafter be
due under the Xxxxxx Xxxxxx Lease in respect of its entire leased premises if,
in connection with a claim by Xxxxxx Xxxxxx that Borrower has failed to comply
with Section 48 of the Xxxxxx Xxxxxx Lease, Xxxxxx Xxxxxx fails or refuses to
pay Rent due under the Xxxxxx Xxxxxx Lease. The recourse liability and
obligations of Maker under Paragraph 11(b)(i) are collectively referred to as
the "Springing Xxxxxx Xxxxxx Additional Premises Rent Guaranty" and the recourse
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liability and obligations of Maker under Paragraph 11(b)(ii) are collectively
referred to as the "Springing Xxxxxx Xxxxxx Leased Premises Rent Guaranty". So
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long as no Event of Default shall have occurred and remain uncured, Maker may
make a written request that Payee make a determination whether the Springing
Xxxxxx Xxxxxx Additional Premises Rent Guaranty or the Springing Xxxxxx Xxxxxx
Leased Premises Rent Guaranty (as the case may be) shall continue to be
required. Payee shall make its determination as hereinafter set forth in this
Paragraph 11(b).
Payee's determination of any release of the Springing Xxxxxx Xxxxxx
Additional Premises Rent Guaranty and the Springing Xxxxxx Xxxxxx Leased
Premises Rent Guaranty shall be subject to satisfaction of each of the
following conditions precedent:
(1) Maker, at its sole cost and expense, shall have promptly provided
to Payee all documentation and information
determined by Payee in Payee's reasonable discretion to be
necessary for Payee to make the determination as set forth in
this Paragraph 11(b), including, without limitation, copies of
the Office Leases (as hereinafter defined) related to the
Additional Premises and the Xxxxxx Xxxxxx Space (as the case may
be), rent rolls, tenant estoppel certificates, and property
operating and financial statements, and any other evidence of
performance, operation or condition of the Trust Property related
to the Additional Premises and the Xxxxxx Xxxxxx Space (as the
case may be) requested by Payee in its reasonable discretion;
(2) The Additional Premises in respect of Maker's request for a
release from the Springing Xxxxxx Xxxxxx Additional Premises Rent
Guaranty, and the Xxxxxx Xxxxxx Space in respect of Maker's
request for a release from the Springing Xxxxxx Xxxxxx Leased
Premises Rent Guaranty, if Xxxxxx Xxxxxx is not the party paying
Rent on the Additional Premises or the Xxxxxx Xxxxxx Space, as
applicable, is occupied in its entirety by one or more
unaffiliated, arms-length office tenants with credit determined
by Payee to be equal to or better than the credit of Xxxxxx
Xxxxxx as of the date hereof (the "Office Tenants") pursuant to
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bona fide written lease agreements which comply with the terms
and conditions of the Security Instrument and were approved (or
deemed approved) by Payee (the "Office Leases"); all Office
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Tenants under all Office Leases shall have been in actual
occupancy of, conducting business from, and paying full unabated
rent and additional rent for, their respective leased premises;
no Office Tenants under any Office Leases are insolvent or the
subject of any proceeding or action relating to a bankruptcy,
reorganization or other arrangement pursuant to federal
bankruptcy law; Maker shall have performed all of its obligations
of an inducement nature under each Office Lease with an Office
Tenant (including payment and performance of all tenant
improvement work); and all Office Leases with Office Tenants are
in full force and effect and neither landlord nor tenant
thereunder is in default;
(3) All Office Leases with Office Tenants provide for an initial term
which is at least five (5) years;
(4) The aggregate Rent paid by the Office Tenants under the Office
Leases shall be equal to or greater than the Rent which Xxxxxx
Xxxxxx is required to pay under the Xxxxxx Xxxxxx Lease for the
Additional Premises in respect of Maker's request for a release
from the Springing Xxxxxx
Xxxxxx Additional Premises Rent Guaranty and the aggregate Rent
paid by the Office Tenants under the Office Leases shall be equal
to or greater than the Rent which Xxxxxx Xxxxxx is required to
pay under the Xxxxxx Xxxxxx Lease for the Xxxxxx Xxxxxx Space in
respect of Maker's request for a release from the Springing
Xxxxxx Xxxxxx Leased Premises Rent Guaranty;
(5) Maker shall have caused all Office Tenants under Office Leases to
deliver to Payee current estoppel certificates in form and
substance acceptable to Payee confirming, among other things,
that (1) each Office Lease is in full force and effect, (2) all
Office Tenants have paid full, unabated base rent and additional
rent through the end of the calendar month in which the estoppel
certificate is delivered to Payee, (3) all Office Tenants are in
occupancy of and conducting business from their respective leased
premises and (4) all obligations of the Maker, as landlord, of an
inducement nature have been satisfied or irrevocably waived by
the Office Tenant; and
(6) Maker shall have paid all reasonable and actual out-of-pocket
costs and expenses of Payee in connection with Payee's
determination under this Paragraph 11(b), and the documentation
and release of the Springing Xxxxxx Xxxxxx Additional Premises
Rent Guaranty or Springing Xxxxxx Xxxxxx Leased Premises Rent
Guaranty (as the case may be), including without limitation, all
reasonable attorneys' fees, costs and expenses.
(c) Notwithstanding anything to the contrary in this Note or any of the
Loan Documents, (1) Payee shall not be deemed to have waived any right which
Payee may have under Section 506(a), 506(b), 1111(b) or any other provisions of
the U.S. Bankruptcy Code to file a claim for the full amount of the Debt secured
by the Security Instrument or to require that all collateral shall continue to
secure all of the Debt owing to Payee in accordance with the Loan Documents, and
(2) the Debt shall be fully recourse to Maker in the event that: (i) the first
full monthly payment of principal and interest under this Note is not paid when
due; (ii) Maker fails to maintain its status as a single purpose entity, as
required by, and in accordance with the terms and provisions of, the Security
Instrument (except with respect to the terms and provisions of clause (j) of
Paragraph 11 thereof); (iii) Maker fails to obtain Payee's prior written consent
to any subordinate financing or other voluntary lien encumbering the Trust
Property; (iv) Maker fails to obtain Payee's prior written consent to any
assignment, transfer, or conveyance of the Trust Property or any interest
therein as required by the Security Instrument, (v) a receiver, liquidator or
trustee of Maker or of any guarantor shall be appointed or if Maker or any
guarantor shall be adjudicated a bankrupt or insolvent, or if 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, Maker or any
guarantor or if any proceeding for the dissolution or liquidation of Maker or of
any guarantor shall be instituted by Maker or any guarantor, or (vi) Maker or
any guarantor (or any person comprising such guarantor) or any Related Party of
any of the foregoing shall, in connection with any enforcement action or
exercise or assertion of any right or remedy by or on behalf of Payee under or
in connection with this Note, the Security Instrument or any of the other Loan
Documents, asserts a defense, seeks judicial intervention or injunctive or other
equitable relief of any kind or asserts in a pleading filed in connection with a
judicial proceeding any defense against Payee or any right in connection with
any security for the Loan which the court in such action or proceeding
determines is not made in good faith and is without merit (in respect of a
defense) or unwarranted (in respect of a request for judicial intervention or
injunctive or other equitable relief). "Related Party" shall mean any person or
entity which owns a direct or indirect interest in Maker or any guarantor (or
any person comprising such guarantor), or which is owned or controlled by or
under common ownership or control with Maker or any such guarantor.
12. Maker (and the undersigned representative of Maker, if any) represents
that Maker has full power, authority and legal right to execute, deliver and
perform its obligations pursuant to this Note, the Security Instrument and the
other Loan Documents and that this Note, the Security Instrument and the other
Loan Documents constitute valid and binding obligations of Maker.
13. All notices or other communications required or permitted to be given
pursuant hereto shall be given in the manner specified in the Security
Instrument directed to the parties at their respective addresses as provided
therein.
14. MAKER HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE
OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT
ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE LOAN DOCUMENTS,
OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS
WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY MAKER,
AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO
WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. PAYEE IS HEREBY
AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE
EVIDENCE OF THIS WAIVER BY MAKER.
15. This Note shall be governed by and construed in accordance with the
laws of the State in which the Trust Property is located and the applicable laws
of the United States of America.
16. Any capitalized term used in this Note and not defined herein shall
have the meaning given to such term in the Security Instrument.
17. This Note may be executed in one or more counterparts, each of which
shall be deemed to constitute an original, but all of which, when taken
together, shall constitute one and the same instrument.
18. This Note does not extinguish the outstanding indebtedness evidenced by
the Original Note or discharge or release the Original Deed of Trust or any
other security, and the parties do not intend this Note to be a substitution or
novation of the original indebtedness or instruments securing same.
[SIGNATURE PAGE FOLLOWS]
Maker has duly executed this Note the day and year first above written.
MAKER:
ARGO ORCHARD RIDGE, LC, a
Maryland limited liability company
By: ARGO ORCHARD RIDGE MANAGER, INC., a
Maryland corporation, its Managing
Member
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: President
XXXXXXX LAND LIMITED PARTNERSHIP, a
Virginia limited partnership
By: XXX XXXXXXX (ORCHARD RIDGE), INC., a
Maryland corporation, its General
Partner
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
UBS REAL ESTATE INVESTMENTS INC., a Delaware corporation, holder of the
Original Note, signs below to acknowledge its consent to the terms of this Note.
PAYEE:
UBS REAL ESTATE INVESTMENTS INC., a
Delaware corporation
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
