DEED OF TRUST AND SECURITY AGREEMENT
Exhibit 10.77
THIS DEED OF TRUST AND SECURITY AGREEMENT (the “Deed of Trust”) is made this
18th day of December, 2009 by XXXX HD WINCHESTER VA, LLC, a Delaware limited
liability company, having a mailing address at 0000 X. Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx
00000 (hereinafter called the “Borrower”), grantor for indexing purposes, to XXXXX X. XXXXXX, as
trustee (the “Trustee”), a resident of the County of Chesterfield, having a mailing address c/o
First American Title Insurance Company, 00000 Xxxxxxxxxxx
Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, grantee for indexing purposes, for the benefit of PEOPLE’S
UNITED BANK, a federally chartered banking corporation having a mailing address at 000 Xxxxxx
Xxxxxx, Xxx Xxxxx, Xxxxxxxxxxx 00000 (the “Lender"), grantee for indexing purposes.
For valuable consideration, Borrower conveys, transfers, encumbers, pledges and assigns to
Trustee all of Borrower’s present and future rights, title and interest in and for the following:
(A) LAND: a certain piece or parcel of real property located at 000 Xxxx Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxx, more particularly described in Schedule A attached hereto and made a part
hereof, and all rights, privileges and easements appurtenant thereto (the “Land”).
(B) IMPROVEMENTS: All the buildings, structures and improvements now or hereafter placed on the
Land (the “Improvements”).
(C) FIXTURES AND EQUIPMENT: All fixtures, furnishings, appliances, machinery and equipment now or
hereafter installed, attached to, used, or furnished in connection with the use, letting or
operation of the Land and the Improvements or in connection with the activities conducted thereon,
and all renewals or replacements thereof or additions thereto or articles of substitution thereof
(collectively, the “FF&E”), specifically excluding any FF&E owned or leased by tenants of space in
the Improvements.
(D) CONDEMNATION PROCEEDS: All awards or payments, including interest thereon, which may be made
with respect to the Land and the Improvements as a result of the exercise of the right of eminent
domain in accordance with, and subject to, the terms and conditions of Section 1.4.
(E) LEASES: All right, title and interest of the Borrower in and to any and all leases, tenancies
or rights of use and occupancy, as the same may be amended, modified, extended, renewed or
replaced, and all guarantees of any tenant’s obligations thereunder, now or hereafter on or
affecting the Land and/or the Improvements, whether or not recorded, with all security therefor
and all monies payable thereunder (hereinafter, individually, a “Lease” and, collectively, the
“Leases”) in accordance with, and subject to, the terms and conditions of Section 1.8.
(F) PROPERTY
INCOME: All rents, income, profits, security deposits and other benefits to which
the Borrower may now or hereafter be entitled from the Land and the Improvements and/or the
business operations conducted thereat or therefrom (hereinafter the
“Property Income”) in
accordance with, and subject to, the terms and conditions of Section 1.9.
(G) INTANGIBLES: All present and future funds, accounts, instruments, accounts receivable,
documents, causes of action, claims, general intangibles (including, without limitation,
trademarks, trade names, service marks and symbols now or hereafter used in connection with any
part of the Land or the Improvements, all names by which the Land or the Improvements may be
operated or known, all rights to carry on business under such names, and all rights, interest and
privileges which Borrower has or may have as developer or declarant under any covenants,
restrictions or declarations now or hereafter relating to the Land or the Improvements) and all
notes or chattel paper now or hereafter arising from or by virtue of any transactions related to
the Land or the Improvements (all of the foregoing, together with the FF&E, being referred to
collectively as the “Service Equipment”).
(H) PERMITS AND APPROVALS: All permits, licenses, consents and approvals relating to the
development, use and occupancy of the Land and the Improvements.
TO HAVE AND TO HOLD the above granted and bargained premises, with the privileges and
appurtenances thereof (collectively referred to herein as the
“Property”) but subject to those
encumbrances, listed in the Lender’s mortgagee policy of title insurance (the “Permitted
Encumbrances”), unto the Trustee, its successors and assigns in Trust for the benefit of the
Lender, its successors and assigns forever, to its and their own proper use and behoof.
THE CONDITION OF THIS DEED OF TRUST IS SUCH THAT:
WHEREAS, the Lender and the Borrower have entered into a Promissory Note (the “Note”) of even
date herewith, pursuant to which all or part of the Loan proceeds are permitted to be advanced from
time to time and shall be secured by this Deed of Trust. The Note provides for repayment of all or
a portion of the outstanding balance of the Loan proceeds, together with interest thereon, from
time to time as provided therein, a copy of which Note is on file with the Lender. Unless sooner
paid or sooner due and payable, however, the entire then outstanding principal balance of the Loan,
together with accrued interest, shall be due and payable on January 1, 2017.
WHEREAS, the Lender and the Borrower have entered or will enter into an interest rate swap
transaction evidenced by an ISDA 2002 Master Agreement of even date herewith, together with the
Schedule and all Confirmations relating thereto (the “Swap Agreement”), pursuant to which the
variable rate interest risk under the Note has been or will be hedged and pursuant to which the
Borrower has or will have certain payment and performance obligations to the Lender in the event
the Swap Agreement is terminated (the “Swap Obligations”).
NOW, THEREFORE, Borrower hereby agrees to comply with and be subject to, the following terms,
representations, covenants and conditions:
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ARTICLE
1.
COVENANTS AND REPRESENTATIONS OF THE BORROWER
COVENANTS AND REPRESENTATIONS OF THE BORROWER
The Borrower covenants, represents and warrants to the Lender as follows:
1.1 FUTURE ADVANCES; PROTECTION OF PROPERTY
This Deed of Trust shall secure the principal sum of $17,500,000.00, together with: (a)
interest, late charges, fees and other amounts due under the Note or this Deed of Trust; (b) any
and all additional advances made by Lender to protect or preserve the Property or the lien or
security interest created hereby on the Property, or for taxes, assessments or insurance premiums
as hereinafter provided or for performance of any of Borrower’s obligations hereunder or under the
other Loan Documents or for any other purpose provided herein or in the other Loan Documents
(whether or not the original Borrower remains the owner of the Property at the time of such
advances); (c) all legal fees, costs and other expenses incurred by the Lender by reason of any
default or otherwise in connection with the Obligations (defined below); and (d) the Swap
Obligations. The Borrower agrees that if, at any time during the term of this Deed of Trust or
following a foreclosure hereof (whether before or after the entry of a judgment of foreclosure),
the Borrower fails to perform or observe any covenant or obligation under this Deed of Trust
including, without limitation, payment of any of the foregoing, the Lender may (but shall not be
obligated to) take such steps as are reasonably necessary to remedy any such nonperformance or
nonobservance and provide payment thereof. All amounts so advanced by the Lender shall be added to
the amount secured by this Deed of Trust and the other Loan Documents (and, if advanced after the
entry of a judgment of foreclosure, by such judgment of foreclosure), and shall be due and payable
on demand, together with interest at the Default Rate set forth in the Note, such interest to be
calculated from the date of such advance to the date of repayment thereof.
1.2 PAYMENT AND PERFORMANCE
The Borrower will pay the Loan and all other sums due hereunder and all other indebtedness
secured hereby, in lawful money of the United States and pay and perform all of its obligations
under the Note, this Deed of Trust, the Swap Agreement and every other instrument now or hereafter
securing, evidencing or relating to the Loan (collectively referred to herein as the “Loan
Documents”) at the times and in the manner set forth in such Loan Documents. All amounts due the
Lender under any of the aforesaid instruments, including, without limitation, the Swap Obligations,
shall be secured by the lien of this Deed of Trust and shall hereinafter be referred to as the
“Obligations”. All advances made under the Note, this Deed of Trust and any other Loan Documents
shall be referred to collectively, herein as “Loan Advances”.
1.3 INSURANCE
A. The Borrower shall keep the Property insured against loss by fire, flood and other
hazards, casualties, liability, contingencies and all other “extended coverage” risks, including
builder’s risk, loss of income and demolition coverage in such amounts, with such companies, and
with such deductibles as the Lender may reasonably require. All insurance
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carried on the Property must show the Lender as an additional insured and be payable to the Lender under the standard
non-contributing mortgagee endorsement and such other endorsements as the Lender may reasonably
require. The Borrower shall claim no cancellation or return of any policy or premium except from
and after the redemption of this Deed of Trust by the Borrower or the satisfaction in full of the
Obligations. The obligation to provide any policy or coverage under this subsection may be
satisfied by the policy or coverage carried by any tenant under an approved Lease, provided such
policy or coverage is primary and noncontributing; and further provided that, in the case of such
tenant’s property policy, the Borrower is named as an additional named insured or is an additional
insured, and the Lender is named as first mortgagee, or, in the case of such tenant’s liability
insurance policy, the Borrower and the Lender are named as additional insureds. In other words,
for so long as both parties to any approved Lease maintain insurance coverage or self-insure in
accordance with the terms of such Lease agreement, the Borrower shall be deemed to be in compliance
with the terms of this subsection.
B. In the event of any loss or damage to the Property, the Borrower shall give prompt notice
thereof to the Lender. The Borrower authorizes the Lender, at its option, to collect, adjust and
compromise any losses under any hazard insurance policy required to be maintained by Borrower
hereunder. In case of loss and payment by any insurance company of proceeds of a policy required
to be maintained by Borrower hereunder, the amount of insurance proceeds received shall be applied
either in whole or in part upon the payment of the Obligations or to rebuilding or restoring the
Property, as the Lender may elect in its sole discretion. Notwithstanding the foregoing, the
Lender agrees to make such proceeds available to repair or restore the Property so long as (1) no
Event of Default (as defined herein) has occurred and is then continuing, (2) the proceeds are
sufficient to cover the cost to repair or restore the Property substantially to its condition
immediately preceding the loss or damage, and (3) the Borrower is either required or has the
option, under any lease of the Property, to use such insurance proceeds to effect such repair or
restoration.
Notwithstanding the foregoing provisions of this Section 1.3.B or anything to the
contrary contained herein, for so long as the lease agreement (the “Home Depot Lease”) with Home
Depot U.S.A., Inc. (“Home Depot”) is in effect the disposition of casualty and condemnation
proceeds shall be governed by such lease.
1.4 TAXES
A. The Borrower shall pay or cause to be paid within any applicable grace period and before
the same become delinquent, all taxes, water rates, sewer rents, utility charges, assessments, and
governmental or other charges and impositions of any kind whatsoever, including any assessment for
local improvements, whether payable in installments or otherwise, for which lien rights exist,
which may now or hereafter be assessed or levied upon any part of the Property, or in lieu of or in
addition to a tax on the Property (all such charges and payments collectively referred to herein as
the “Taxes”). The Borrower shall promptly notify the Lender of the delinquency in the payment of
any Taxes.
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Notwithstanding the foregoing provisions of this Section 1.4.A or anything to the
contrary contained herein, for so long as the Home Depot Lease is in effect the right to
contest the validity, applicability or amount of any asserted tax or assessment shall be
governed by such lease.
B. Upon the request of the Lender, the Borrower shall deposit with the Lender in advance,
and without interest, such amounts, in such installments, to be held on such terms and conditions,
as the Lender may in its sole discretion require in order to pay the Taxes. All such payments
shall be held in a non-interest bearing account at the Lender and may be commingled with other
assets of the Lender. Upon the occurrence of an Event of Default and during the continuance
thereof, the Lender may, at its option, apply the accumulated escrow balance remaining as a credit
against the Obligations. The foregoing escrow requirement shall be waived by the Lender so long as
(i) no Event of Default (as defined herein) has occurred and is then continuing, and (ii) Borrower,
Home Depot or any other tenant of the Property is paying such Taxes directly to the taxing
authority in a timely manner.
C. The Borrower will not make or claim credit on or deduction from the principal or interest on
the sums secured by this Deed of Trust by reason of any municipal or governmental taxes,
assessments or charges assessed upon the Property, or claim any deduction from the taxable value of
the Property by reason of this Deed of Trust.
1.5 CONDEMNATION
A. The Borrower will give the Lender prompt notice of any eminent domain proceedings
affecting any part of the Property. The Borrower hereby appoints the Lender as its
attorney-in-fact, coupled with an interest, and authorizes the Lender to collect, receive, and
retain, subject to the terms hereof, the proceeds of any such award or payment, to give proper
receipts therefor and, if an Event of Default has occurred, to adjust, compromise and settle the
claim therefor. The Lender shall have the right to intervene and participate in any eminent domain
proceedings and the Borrower shall consult with the Lender in all matters pertaining to the
adjustment, compromise or settlement of such proceedings and shall not enter into any agreement
with respect to such matters without the prior written consent of the Lender. The Lender may, in
its sole discretion, retain and apply any eminent domain award or payment toward payment of the
Obligations, or pay same over wholly or in part to the Borrower.
Notwithstanding the foregoing provisions of this Section 1.5.A, for so long as the Home
Depot Lease is in effect the disposition of casualty and condemnation proceeds shall be governed by
such lease.
1.6 COMPLIANCE WITH LAWS, ETC.
A. The Borrower warrants that it presently does and covenants that it will continue to
observe and comply with (1) all laws, regulations, ordinances, rules and orders affecting the
Property or the business operations thereon; and (2) the terms of each insurance policy applicable
to the Property that Borrower is required by this Deed of Trust to
maintain. If
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the Borrower receives notice that it is not in compliance with any such law or condition, the Borrower will
promptly provide the Lender with a copy of such notice.
Notwithstanding the foregoing, the Borrower may, upon providing Lender with security
satisfactory to Lender, proceed diligently and in good faith to contest the validity or
applicability of any such laws, regulations, ordinances, rules and orders affecting the Property or
the business operations thereon, so long as during such contest the Property shall not be subject
to any lien, charge, fine or other liability and shall not be in danger of being forfeited, lost or closed. The Borrower shall
not use or occupy, or allow the use or occupancy of, the Property in any manner which violates any
Lease of or any other agreement applicable to the Property or any applicable laws, regulations,
ordinances, rules and orders, or which constitutes a public or private nuisance or which makes
void, voidable or cancelable, or increases the premium of, any insurance then in force with respect
thereto.
B. The Borrower shall indemnify the Trustee and the Lender and hold the Lender and the Trustee
harmless from and against all loss, liability, damage and expense, including attorneys’ fees,
suffered or incurred by the Lender or the Trustee, whether as holder of this Deed of Trust, as
mortgagee in possession or as a successor in interest to the Borrower as owner of the Property by
virtue of foreclosure or acceptance of a deed in lieu of foreclosure (1) under or on account of any
applicable state or federal laws or regulations, including the assertion of any lien thereunder;
(2) any fact or event giving rise to liability under the Borrower’s and Guarantor’s Environmental
Indemnification dated as of even date herewith with respect to the Property; and (3) with respect
to any other matter affecting the Property and governed by the provisions of applicable state or
federal laws or regulations.
C. In the event of any discharge, spillage, uncontrolled loss, seepage or infiltration of oil or
petroleum or chemical liquids, solids or gaseous products or hazardous waste or hazardous or toxic
substance which would give rise to a lien under applicable law (a “Spill”) affecting the Property,
whether or not the same originates or emanates from the Property or any contiguous real estate, the
Borrower shall contain, remove or mitigate, or cause the containment, removal or mitigation of, the
same immediately and in accordance with any directives of the Commonwealth of Virginia. If the
Borrower shall fail to remedy such Spill or otherwise comply with any of the requirements of any
environmental law or regulation, the Lender may at its election, but without the obligation to do
so, give such notices and/or cause such work to be performed at the Property and/or take any and
all other actions as the Lender shall deem necessary or advisable in order to remedy the Spill or
cure such failure of compliance, and any amounts paid as a result thereof shall be reimbursed by
the Borrower upon demand by the Lender, shall bear interest at the “Default Rate” provided for in
the Note, and shall be secured by the lien of this Deed of Trust.
1.7 MAINTENANCE AND REPAIR; INSPECTION; SIGN
A. The Borrower will (1) keep and maintain the Property in good condition, working order and
repair, or cause the same to be so kept and maintained; (2) not commit or suffer any waste of the
Property; (3) repair, replace, rebuild or restore any part of the Property which may be damaged or
destroyed, or cause the same to be so repaired, replaced, rebuilt or
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restored; and (4) make, or cause to be made, all other repairs and replacements to the Property required by any applicable
Lease, or, with respect to any period during which there is no Lease applicable to the Property,
which the Lender may reasonably require. All such work shall be done promptly in a good and
workmanlike manner.
B. After the occurrence of and during the continuation of an Event of Default, the Lender and any
person duly authorized by the Lender shall, subject to the rights of tenants under the Leases, have
the right to enter and inspect the Property at all reasonable times.
1.8 SALE, ENCUMBRANCE AND USE
A. The Borrower shall not, without the Lender’s prior written consent, which may be withheld
in the Lender’s sole discretion for any reason whatsoever, (1) initiate or allow any transfer or
other disposition of, legal or equitable title to all or any part of the Property other than in
compliance with the provisions of Section 4.09 below; (2) if applicable, commence an action to dissolve or
otherwise effect the dissolution of an entity Borrower or guarantor; (3) if applicable, cause the
termination of or change the ownership, the articles of organization, the operating agreement, or
the manager of the Borrower or any guarantor; (4) voluntarily create any liens or encumbrances
against the Borrower’s title to the Property; (5) initiate or, allow any change in the nature of
the use and occupancy of the Property from that permitted by the terms of any Lease, including any
such change which materially increases the likelihood of a Spill; or (6) record any declaration of
condominium or other form of common interest ownership affecting any part of the Property.
Notwithstanding the foregoing, however, any of the following may occur without the consent of the
Lender: (i) transfers of limited partnership interests in any Restricted Party (as hereinafter
defined), (ii) transfers of shares in Xxxx Credit Property Trust II, Inc., Xxxx Credit Property
Trust III, Inc. or any other entity whose ownership interests are bought, sold and redeemed through
U.S. broker-dealers, (iii) any involuntary transfer caused by the death of any Restricted Party or
any general partner, shareholder, joint venturer, manager, member or beneficial owner of a trust so
long as the Borrower is reconstituted, if required, following such death and so long as those
persons responsible for the management of the Property and the Borrower remain unchanged as a
result of such death or any replacement management is approved by the Lender, (iv) gifts for estate
planning purposes of any individual’s interests in any Restricted Party to the spouse or any lineal
descendant of such individual, or to a trust for the benefit of any one or more of such individual,
spouse or lineal descendant so long as the Borrower is reconstituted, if required, following such
gift and so long as those persons responsible for the management of the Property and the Borrower
remain unchanged following such gift or any replacement management is approved by the Lender, and
(v) transfers of ownership interests in any Restricted Party and ownership interests in any member,
partner or shareholder of any Restricted Party to any affiliate or subsidiary of a Restricted
Party, provided that, at all times, Xxxxxxxxxxx X. Xxxx, Xxxx Holdings Corporation, Xxxx Credit
Property Trust II, Inc., and/or Xxxx Credit Property Trust III, Inc., continues to “control”
the Restricted Party, where the term “control” means the power to direct the management and
policies of the Restricted Party. As used herein, the term “Restricted Party” shall mean the
Borrower and/or the guarantor.
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B. The Borrower will keep the Property free from the claim of all persons supplying labor or
materials in connection with the construction or repair of any Improvements constituting a part of
the Property; provided, however, that the Borrower shall have the right to contest in good faith
any such claim or demand, so long as it does so diligently, by appropriate proceedings and without
prejudice to the Lender and provided that neither the Property nor any interest therein would be in
any danger of sale, loss or forfeiture as a result of such proceeding or contest. In the event the
Borrower shall contest any such claim or demand, the Borrower shall promptly notify the Lender of
such contest and thereafter shall, upon the Lender’s written request therefor, promptly provide a
bond, cash deposit or other security reasonably satisfactory to the Lender to protect the Lender’s
interest and security should the contest be unsuccessful. If the Borrower shall fail to promptly
discharge or provide security against any such claim or demand as aforesaid, the Lender may do so
and any and all expenses incurred by the Lender, together with interest thereon at the Default Rate
under the Note from the date incurred by Lender until actually paid by the Borrower, shall be
immediately paid by the Borrower on demand and shall be secured by this Deed of Trust and by all of
the other Loan Documents securing all or any part of the Obligations.
C. The Borrower will furnish, at the Lender’s request, all waivers and releases of liens or
claims upon or with respect to the Property.
D. The term “transfer or other disposition” as used in Section 1.8.A above shall mean:
(1) any sale, conveyance, transfer, gift or other disposition, whether voluntary, involuntary, or
by operation of law;
(2) if the Borrower is a limited liability company, any transfer of a beneficial interest in the
ownership of the membership interest in the company, whether caused by a member’s death or
otherwise, or any change in the Articles of Organization or Operating Agreement of the company, or
any change in members or managers of the company that has not been approved by the Lender, or any
termination of the company;
(3) if the Borrower is a partnership, any transfer of a partner’s interest, whether caused by the
partner’s death or otherwise, or any change in the partnership agreement, or any termination of the
partnership;
(4) any dissolution or liquidation of, or the filing of a suit to dissolve or liquidate, the
Borrower;
(5) except for the existing Lease of the Land and Improvements to Home Depot, a lease or leases of
more than twenty percent (20%) of the Land, Improvements and/or Service Equipment, wherein the
proposed tenant or tenants do not intend to occupy the Property but intend to sell, sublease or
assign their interest in a lease or leases of the Land, Improvements and/or Service Equipment. It
is the express intention of this provision to prohibit a long-term lease or sale and leaseback for
either financing purposes or to effectuate a transfer of the Property, but nothing herein shall
prohibit or affect the rights of Home Depot to sublease or
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assign its interests in, to and under
its Lease, as set forth in such Lease; and
(6) any management contract wherein management of the Property shall be the responsibility of
anyone other than the Xxxx Realty Advisors, Inc.
E. The Borrower shall promptly notify the Lender if any lien, attachment or encumbrance is
recorded against the Property without the Borrower’s consent and shall cause the lien to be
cancelled or bonded over and discharged of record within thirty (30) days after its recording.
1.9 LEASES
The Borrower will not take any action, the effect of which would be to cause any Lease to
cease to be in full force and effect, and will not, except with the prior written consent of the
Lender and except as may otherwise be expressly permitted by the terms of this Deed of Trust, (1)
cancel or terminate any Lease, or consent to any cancellation, termination or surrender thereof, or
any assignment thereof; (2) amend, modify or subordinate any Lease; (3) enter into any new Lease;
(4) waive any event of default under any Lease; (5) consent to any prepayment or discount of rent
or advance rent under any Lease; or (6) take any other action in connection with any Lease which
may materially impair or jeopardize the validity of such Lease or the Lender’s interest therein.
The Lender shall have the right to review and reasonably refuse written consent to any of the above
proposed actions of the Borrower based upon the substance of the proposed transaction, the
creditworthiness of the Borrower or the tenant, the financial condition of the Property or
otherwise.
1.10 PROPERTY INCOME
As additional and collateral security for the payment of the Obligations and cumulative of any
and all rights and remedies herein provided for, the Borrower hereby absolutely and presently
assigns to the Lender all existing and future Property Income. The Borrower hereby grants to the
Lender the sole, exclusive and immediate right, without taking
possession of the Property, to demand, collect (by suit or otherwise), receive and give valid
and sufficient receipts for any and all of said Property Income, for which purpose the Borrower
does hereby irrevocably make, constitute and appoint the Lender its attorney-in-fact with full
power to appoint substitutes or a trustee to accomplish such purpose (which power of attorney shall
be irrevocable so long as any portion of the Obligations is outstanding, shall be deemed to be
coupled with an interest, shall survive the voluntary or involuntary dissolution of the Borrower
and shall not be affected by any disability or incapacity suffered by the Borrower subsequent to
the date hereof); provided, however, that until the occurrence of an Event of Default under this
Deed of Trust or under any other of the Loan Documents, the Borrower shall have a license to
collect, receive, use and enjoy the Property Income when due and prepayments thereof for not more
than one (1) month prior to due date thereof. Upon the occurrence of an Event of Default, the
Borrower’s license shall automatically terminate without notice to the Borrower and the Lender may
thereafter, without taking possession of the Property, collect the Property Income itself or by an
agent or receiver. From and after the termination of such license, the Borrower shall be the agent
of the Lender in collection of the Property Income, and all of the Property
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Income so collected by the Borrower shall be held in trust by the Borrower for the sole and exclusive benefit of the
Lender, and the Borrower shall, within three (3) business days after receipt of any Property
Income, pay the same to the Lender to be applied by the Lender as hereinafter set forth. Neither
the demand for or collection of Property Income by the Lender shall constitute any assumption by
the Lender of any obligations under any agreement relating thereto. The Lender is obligated to
account only for such Property Income as is actually collected or received by the Lender. The
Borrower irrevocably agrees and consents that the respective payors of the Property Income shall,
upon demand and notice from the Lender of an Event of Default, pay said Property Income to the
Lender without liability to determine the actual existence of any Event of Default claimed by the
Lender. The Borrower hereby waives any right, claim or demand which the Borrower may now or
hereafter have against any such payor by reason of such payment of Property Income to the Lender,
and any such payment shall discharge such payor’s obligation to make such payment to the Borrower.
All Property Income collected or received by the Lender may be applied against all expenses of
collection, including, without limitation, reasonable and actual attorneys’ fees, against costs of
operation and management of the Property and against the Obligations, in whatever order or priority
as to any of the items so mentioned as the Lender directs in its sole discretion and without regard
to the adequacy of its security. Neither the exercise by the Lender of any rights under this
Section 1.10 nor the application of any Property Income to the Obligations shall cure or be deemed
a waiver of any Event of Default. The assignment of Property Income hereinabove granted shall
continue in full force and effect during any period of foreclosure or redemption with respect to
the Property. The Borrower has executed a Collateral Assignment of Leases, Rentals and Property
Income dated of even date herewith (the “Assignment”) in favor of the Lender covering all of the
right, title and interest of the Borrower, as landlord, lessor or licensor, in and to any Leases.
All rights and remedies granted to the Lender under the Assignment shall be in addition to and
cumulative of all rights and remedies granted to Lender hereunder. Unless the Lender shall have
taken possession of the Property pursuant to this Deed of Trust, the Lender shall be without
liability for any loss which may arise from a failure to collect any Property Income, proceeds or
other payments.
1.11 REMOVALS, ALTERATIONS AND DEMOLITION
No part of the Improvements may be removed, demolished or materially altered, except as
otherwise provided under any Lease of the Property, without the prior written consent of the Lender
(not to be unreasonably withheld). Without the prior written consent of the Lender (not to be
unreasonably withheld), the Borrower shall not commence construction of any improvements on the
Land other than improvements required for the maintenance or repair of the Property. All such changes, additions and alterations shall
become part of the Property immediately upon installation, except as otherwise provided in any
Lease of all or any part of the Property. Except as permitted under any Lease, no Service
Equipment shall be removed from the Property without the prior written consent of the Lender (not
to be unreasonably withheld), unless it is replaced with an item of similar or greater function and
value. Any replacement equipment shall constitute Service Equipment and be subject to the lien of
this Deed of Trust.
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1.12 PROTECTION OF LIEN AND OTHER EXPENSES
The Borrower shall pay, indemnify, defend and hold the Lender harmless from all costs,
disbursements, expenses and reasonable and actual attorneys’ fees incurred by the Lender in
connection with protecting or sustaining the lien of this Deed of Trust or collection
of the Obligations, either before or after obtaining judgment of foreclosure of this Deed of
Trust or judgment on or with respect to the Obligations.
1.13 BOOKS, RECORDS AND ACCOUNTS; FINANCIAL STATEMENTS
A. The Borrower will keep and maintain proper and accurate books, records and accounts
reflecting all items of income and expense received or paid by or on behalf of the Borrower in
connection with the Property and all business operations conducted at or from the Property. The
Lender shall have the right, upon not less than seventy-two (72) hours advance written notice to
the Borrower, during normal business hours, to examine any such books, records and accounts. The
Borrower shall provide the Lender with (i) annual financial statements and operating reports for
the Property within one hundred twenty (120) days after each fiscal year-end of the Borrower; and
(ii) annual federal tax returns within thirty (30) days after filing. If the Borrower is a
disregarded entity for federal tax purposes, then the sole member of the Borrower (or such other
affiliated entity whose consolidated tax return includes the Borrower or such member), will provide
its federal tax return to the Lender for purposes of complying with the provisions hereof.
B. At all times during the Loan term, the aggregate Loan to value ratio (“LTVR”) for the Loan,
as determined by the Lender taking into account the value of the Property and the value of that
certain property located at 000 Xxxxxx Xxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx (the “Gloucester
Property”) that has been mortgaged by Xxxx XX Gloucester NJ, LLC to the Lender as security for the
Loan, shall not exceed fifty-five percent (55%), and the aggregate debt service coverage ratio
(“DSCR”) for the Loan, as determined annually by the Lender, shall not fall below 1.50 to 1.00.
The DSCR will be calculated based on the actual income received by the Borrower in the aggregate
from both the Property and the Gloucester Property (the “DSCR Income”) less Borrower’s Operating
Expenses of such properties. “Operating Expenses”, as used herein, shall be (i) a replacement
reserve of $0.15 per square foot, and (ii) a 2% management fee. The DSCR Income less the Operating
Expenses shall be considered to be the net operating income (“NOI”). The NOI must support the
proposed debt service on the Loan based upon the interest rate under the Loan at the time of the
Loan closing and a 25-year amortization schedule at not less than 1.50x.
1.14 SECURITY AGREEMENT AND FINANCING STATEMENT
This Deed of Trust is a security agreement and is intended to be effective as a fixture
financing statement pursuant to the Uniform Commercial Code as adopted in the Commonwealth of
Virginia with respect to the Service Equipment. The Lender is the secured party and the Borrower
is the debtor with respect to this financing statement and the mailing
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addresses of the secured party and the debtor for the purpose of this financing statement are set forth hereinabove.
1.15 REQUIRED NOTICES
In addition to any other notices required under this Deed of Trust, the Borrower shall
promptly notify the Lender of the (1) receipt of notice from any governmental authority relating to
the Property; (2) receipt of any notice from any person (natural or otherwise, but specifically
excluding the Lender) claiming to hold any lien or security interest in the Property; or (3)
commencement of any judicial or administrative proceedings by or against or otherwise affecting the
Borrower or the Property.
1.16 OTHER DOCUMENTS
The Borrower, upon its receipt of a written request from the Lender, shall promptly deliver to
the Lender all copies of all reports, licenses, permits, approvals, orders, agreements, options,
and applications in the Borrower’s possession or control relating to or affecting the Property.
1.17 GENERAL REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that as of the date of this Deed of Trust:
A. The Borrower is generally paying its debts as such debts become due, the fair market value
of its assets exceeds its liabilities and no bankruptcy or insolvency proceedings are pending
against or contemplated by the Borrower, and the Borrower has received no written notice that any
such bankruptcy or insolvency proceedings are contemplated against it.
B. All reports, statements and other data furnished by the Borrower to the Lender in
connection with the Loan are true, correct and complete in all material respects and do not omit
any fact or circumstance which would make the statements contained therein materially misleading;
present fairly the financial position of the Borrower as of the date stated therein, and the
results of the Borrower’s operation and changes in financial position for the years then ended and
the statements are prepared in conformity with generally accepted accounting principles applied on
a consistent basis; and that no material adverse change has occurred in the financial condition of
the Borrower or the Property since the date of said financial statement.
C. The Property and all Improvements thereon have not suffered any damage from fire or other
casualty, no part of the Property has been condemned or taken by eminent domain and no condemnation
action or other taking of the Property or any part thereof is pending, nor has written notice of
any threat of eminent domain or condemnation or other taking of the Property been received by the
Borrower.
D. To the actual knowledge of the Borrower and except as set forth in any Phase I
Environmental Site Assessment or other environmental report delivered by the Borrower to the
Lender, there does not now exist on, under or within the Property any Spill. To the actual
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knowledge of the Borrower and except as set forth in any Phase I Environmental Site Assessment or
other environmental report delivered by the Borrower to the Lender, there does not now exist any
condition, nor, to the actual knowledge of the Borrower, will the current or proposed operations
cause there to exist any condition upon the Property or land contiguous thereto which would
materially increase the likelihood of the occurrence of (1) a Spill, or (2) a material violation of
any applicable state or federal laws or regulations.
E. The Borrower is a validly existing limited liability company organized under the laws of
the State of Delaware, is qualified to do business in the Commonwealth of Virginia, has the legal
capacity and is authorized to execute and deliver all Loan Documents, and the Loan Documents are
valid and binding obligations enforceable in accordance with their respective terms.
F. There is no action, suit or proceeding pending against or materially affecting the Borrower
or the Property or the business operations conducted at or from the Property or which involve the
possibility of any judgment or liability not fully covered by
insurance or which, in the Borrower’s opinion, might result in any adverse change in the
business, assets or operations of the Borrower which would, in any way, materially and adversely
affect the Property or the validity or enforceability of the Loan Documents, and the Borrower has
received no written notice threatening any such action, suit or proceeding.
G. The Borrower is not a party to or bound by any contract, agreement or other instrument, or,
to the actual knowledge of the Borrower, subject to any charter or other restriction or any
judgment, order, writ, injunction, decree, rule or regulation which now or in the future may
materially and adversely affect the business, operations, properties, assets or condition,
financial or otherwise, of the Borrower.
H. The Borrower has filed all required federal, state and local tax returns, if any, and the
Borrower has received not written notice of claims asserted with respect to such taxes.
I. The Property has frontage on, and direct access for ingress and egress to, the public
street(s) appurtenant thereto.
J. Electric facilities and any other necessary utilities are and at all times hereafter shall
be, available in sufficient capacity to service the Property satisfactorily, and any easements
necessary to the furnishing of such utility service by the Borrower have been or will be obtained
and duly recorded.
K. To its actual knowledge, the Borrower is not in default under the terms of any instrument
evidencing or securing any indebtedness of the Borrower, and the Borrower has received no written
notice of any fact or condition which would, if uncured or uncorrected after the receipt of notice
or passage of time, or both, constitute a default under any such instrument.
1.18 COMMERCIAL TRANSACTION
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The Borrower represents, warrants and acknowledges that the transaction of which this Deed of
Trust is a part is a “commercial transaction” as defined by the Statutes of the Commonwealth of
Virginia. Monies now or in the future to be advanced to or on behalf of Borrower are not and will
not be used for personal, family or household purposes.
ARTICLE 2.
DEFAULT
DEFAULT
2.1 EVENTS OF DEFAULT
Any one or more of the following shall constitute an “Event of Default” hereunder:
A. The failure to pay the Obligations in full by the “Maturity Date” as defined in the Note,
or the failure to pay any other installment of principal and/or interest due under the Note within
fifteen (15) days from the date when such installment is otherwise due and payable, or the failure
to pay any other sums due under any other Loan Document prior to the expiration of any applicable
notice and/or cure periods or, if there is no such applicable notice or cure period, after the
Lender has given written notice to the Borrower of such failure and a period of ten (10) days shall
have passed with no cure by the Borrower.
B. The occurrence of an Event of Default (as defined therein) under any Loan Documents beyond
any grace or cure periods set forth in said Loan Documents, if any.
C. The failure to pay the premiums on or keep in force any insurance which Borrower is
required to maintain under Section 1.3.
D. With respect to any period during which there is no applicable Lease or the obligation to
pay Taxes under an applicable Lease is the landlord’s, the failure to pay any Taxes which the
Borrower is required to pay within the applicable time periods set forth under Section 1.4, or as
to any other period, the failure to cause the payment of any Taxes which a tenant is required to
pay pursuant to any applicable Lease within the applicable time periods set forth under Section
1.4.
E. The transfer, encumbrance or change in use of, or other action or non-action with respect
to, the Property or the composition of the Borrower in contravention of the provisions of Section
1.8.
F. The failure of the Borrower to promptly contain, remove or mitigate any Spill, or to cause
the containment, removal or mitigation thereof, or the Borrower’s failure to promptly, upon the
Borrower’s receipt of the Lender’s written request therefor, reimburse the Commonwealth of Virginia
or the Lender, as applicable, for any amounts expended by them with respect to any Spill.
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G. The actual waste, removal or demolition of, or material alteration to, any part of the
Property in contravention of Sections 1.7 or 1.11 hereof, without the Lender’s prior written
consent.
H. The failure to observe or perform any other covenant, agreement, obligation, term or
condition set forth herein, other than those otherwise described in this Section 2.1, and, to the
extent such failure or default is susceptible of being cured, the continuance of such failure or
default for thirty (30) days after Borrower’s receipt of written notice thereof from Lender;
provided, however, that if such default is susceptible of cure but such cure cannot
be accomplished with reasonable diligence within said period of time, and if Borrower commences to
cure such default promptly after receipt of notice thereof from Lender, and thereafter prosecutes
the curing of such default with reasonable diligence, such period of time shall be extended for
such period of time as may be necessary to cure such default with reasonable diligence, but not to
exceed an additional sixty (60) days.
I. The LTVR for the Loan exceeds 55% at any time during the Loan term; provided, however, that
a breach of this provision shall not be an Event of Default if the Borrower pays down the Loan to a
level that cures such breach within thirty (30) days after Borrower’s receipt of written notice of
such breach from the Lender. For purposes hereof, the “value” portion of the LTVR will be
calculated using the aggregate fair market value, as reasonably determined by the Lender, of both
the Property and the Gloucester Property.
J. The DSCR falls below 1.50 to 1.0 at any time during the Loan term, provided, however, that
a breach of this provision shall not be an Event of Default if the Borrower pays down the Loan to a
level that cures such breach within thirty (30) days after Borrower’s receipt of written notice of
such breach from the Lender or by posting cash or other collateral acceptable to the Lender
sufficient to cover any debt service shortfall for the remaining Loan term. The DSCR will be
calculated as set forth in Paragraph 1.13(B) above.
ARTICLE 3.
REMEDIES
REMEDIES
Whenever an Event of Default shall have occurred, the Lender shall not be required to advance
any part of the remainder of the Loan herein described and the Lender, or the Trustee in its
behalf, may take any one or more of the following remedial steps:
3.1 ACCELERATION
The Lender may declare, without demand or notice to the Borrower, any or all of the
Obligations to be due and payable immediately and, upon such declaration, the same shall
immediately become, and be, due and payable, and the Lender may exercise any and all remedies, as
may be available under applicable law.
3.2 FORECLOSURE
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The Lender may foreclose this Deed of Trust and exercise its rights as a secured party for all
or any portion of the Obligations which is then due and payable, subject to the continuing lien of
this Deed of Trust for the balance not then due and payable. To the extent permitted by law,
Lender may, at its option, direct the Trustee to take possession of all or any portion of the
Property and proceed to sell the same as a whole or in parts or parcels, at public auction, for
cash or credit, upon any terms the Trustee shall deem appropriate, and to have the Trustee take any
or all other actions set forth herein or in any of the Loan Documents. To the extent permitted by
law, the Borrower consents that such sale may be made of the Property as a whole or in parcels and
that real property and personal property may be separately sold or sold as one lot, all as the
Trustee in its discretion may determine, and further consents that the sale may be on or off the
Property. A bidder’s deposit of not more than ten (10) percent of the sale price may be required
(which, as to the Lender, may be in the form of a credit against the unpaid Obligations). Before
such sale at public auction is made, there shall first be advertisement of the date, time, place
and terms of such sale at least once a week for three successive weeks in the legal notice section
of a newspaper having a general circulation in the city or county in which the Property is then
located. Such advertisements shall set forth all matters required by Virginia law. This is the
“advertisement required” by this Deed of Trust and no other or different advertisement shall be
necessary. The Trustee may act hereunder although it may have been, may now be or may hereafter be
attorney-in-fact of the Lender in respect to all or any part of the Obligations or in respect to
any matter of business whatsoever. The Lender may become the purchaser of all or any portion of
the Property so sold and no purchaser shall be required to see to the proper application of the
purchase money except as may otherwise be required by law. Unless otherwise required by law, the
Trustee shall apply the proceeds of any such sale first, to discharge the expenses of executing the
trust, including a reasonable commission to the Trustee which shall not exceed two and one-half
percent (21/2%) of the gross proceeds of sale; second, to discharge all taxes, levies and
assessments, with costs and lawful interest if they have priority over the lien of this Deed of
Trust, including the due pro rata portion thereof for the current year; third, to discharge in the
order of their priority the remaining Debt, if any, secured by this Deed of Trust, and any liens of
record inferior to this Deed of Trust, with lawful interest; and, fourth, the residue of the
proceeds shall be paid to the Borrower or its successors or assigns; provided, however, that as to
such residue the Trustee shall not be bound by any inheritance, devise, conveyance, assignment or
lien of or upon the Borrower’s equity, without actual notice thereof prior to distribution. If the
Lender instructs the Trustee to proceed to sell all or any portion of the Property in accordance
with the procedure set forth hereinabove and such procedure is terminated prior to such sale by the
Trustee, the Lender shall pay a reasonable commission to the Trustee in an amount which is
customarily paid in Virginia as compensation for such services rendered by the Trustee, but
not exceeding one percent (1%) of the outstanding balance of the Obligations, and the amount
of such commission paid shall be added to the Obligations and shall earn interest at the Default
Rate. The Trustee shall have the right exercisable in its discretion to postpone such sale of the
Property and shall advertise the terms of such postponement at least once a week for three
successive weeks in the newspaper or newspapers in which the notice of sale had been published.
3.3 POSSESSION OF PROPERTY; APPOINTMENT OF RECEIVER
A. The Lender may, at its option (a) enter upon and take possession and control of the
Property and the Property Income with those rights and powers more particularly
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set forth in subsection 3.3 C.; (b) make application to a court of competent jurisdiction for and obtain the
immediate ex parte appointment of a receiver authorized to immediately enter upon and take
possession and control of the Property and the Property Income with those rights and powers more
particularly set forth in subsection 3.3 C.; and (c) without taking possession and control of the
Property, immediately commence action to collect directly all Property Income in the place and
stead of the Borrower with full rights and powers to notify all parties liable to make payments of
Property Income to make said payments directly to the Lender or its agents, and the Lender or its
agents shall have the further power and authority to xxx for or otherwise collect and receive all
Property Income.
B. The Borrower hereby waives to the fullest extent permitted by law all rights to prior
notice or court hearing in connection with any action by the Lender of the types set forth in
subsection 3.3 A., and the Borrower further waives any requirement that Lender provide any bond,
surety, or other security in connection with any said action.
C. In the event the Lender or a receiver enters upon and takes possession and control of the
Property and/or the Property Income pursuant to subsection 3.3 A., said person or entity shall, in
addition to such other rights and powers as may subsequently be authorized, have the right and
power to (1) operate, manage and control the Property and exercise all the rights and powers of the
Borrower in its name or otherwise with respect to the same; (2) make all necessary and proper
maintenance, repairs, replacements, and improvements to the Property required of the landlord under
any applicable Lease or, with respect to any period during which there is no applicable Lease, as
reasonably determined by the Lender; (3) collect and receive all Property Income; and (4) enforce
all terms of existing contracts pertaining to the Property and enter into such new contracts as
required of the landlord under any applicable Lease or, with respect to any period during which
there is no applicable Lease, as reasonably determined by Lender.
D. All Property Income collected by the Lender, the Lender’s agent or a receiver pursuant to
this subsection 3.3 shall be applied in such order of priority as the Lender may determine in its
sole discretion to (1) interest and principal due on the Obligations; (2) with respect to any
period during which there is no applicable Lease, taxes, assessments and insurance premiums due
with respect to the Property and/or the business operations conducted from the Property and, as to
any other period taxes, assessments and insurance premiums due with respect to the Property which
are the obligation of the landlord under the Lease(s); (3) with respect to any period during which
there is no applicable Lease, all reasonable costs and expenses of operating, maintaining,
repairing and improving the Property and conducting the business operations which are or may be
conducted at the Property and, as to any other period, the reasonable costs and expenses of
operating, maintaining, repairing and improving the Property and conducting the business operations
which have or may be conducted at the Property which are the obligation of the landlord under the
Lease(s); and (4) the compensation, salaries, expenses and disbursements of any agents, employees,
attorneys or other
representatives of the Lender, the Lender’s agent or the receiver in connection with the
possession, control and/or operation of the Property and the business operations conducted
therefrom.
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E. The Lender, its agents, or any receiver acting pursuant to this subsection 3.3 shall in no
event be liable or accountable for more moneys than actually are received or collected during the
period during which the Lender, its agent or any receiver actually is in possession and control of
the Property. Unless Lender shall have taken possession of the Property pursuant to this Deed of
Trust, neither the Lender, its agents or any receiver shall be liable or accountable in any manner
for the failure to collect Property Income for any reason whatsoever.
F. All costs, expenses and liabilities of every character incurred by the Lender in managing,
operating and maintaining the Property, not paid from Property Income as hereinabove provided,
shall constitute Lender advances pursuant to Section 3.4.
G. In the event of foreclosure, the Lender, its agent or any receiver acting pursuant to this
subsection 3.3 may remain in possession of the Property until (1) the foreclosure sale; (2) the
redemption of the Property; or (3) if a deficiency exists, the expiration of any redemption period
of the United States of America extending subsequent to the foreclosure sale. The Borrower shall
and does hereby indemnify and hold the Lender harmless from and against any and all liability,
loss, claim, demand or damage which may or might be incurred by reason of this Deed of Trust,
including, without limitation, claims or demands for security deposits from tenants of the Property
deposited with the Borrower, and from and against any and all claims and demands whatsoever which
may be asserted against the Lender by reason of any alleged obligations or undertakings on its part
to perform or discharge any of the terms, covenants or agreements contained in any of the Leases,
unless occurring after the Lender has taken possession of the Property pursuant to this Deed of
Trust or unless resulting from the Lender’s negligence or willful misconduct. Should the Lender
incur any liability by reason of this Deed of Trust or in defense of any claim or demand for loss
or damage as provided above, the amount thereof, including, without limitation, costs, expenses and
reasonable and actual attorneys’ fees, together with interest thereon at the Default Rate under the
Note from the date paid or incurred by the Lender until repaid by the Borrower, shall be
immediately due and payable to the Lender by the Borrower upon demand and shall be secured by this
Deed of Trust and by all of the other Loan Documents securing all or any part of the indebtedness
evidenced by the Note.
3.4 LENDER ADVANCES
The Lender may, without notice or demand, pay any amount which the Borrower has failed to pay,
or perform any act which the Borrower has failed to perform hereunder. In such event such Lender
advances, together with interest thereon from the date made, at the highest interest rate allowed
under the Note, shall be (1) added to the Obligations, (2) payable on demand to the Lender and (3)
secured by the lien of this Deed of Trust.
3.5 NO MARSHALLING
The Lender shall not be (1) compelled to release, or be prevented from foreclosing or
enforcing this Deed of Trust upon all or any part of the Property, unless the entire Obligations
shall have been paid; (2) required to accept any part or parts of the Property, as distinguished
from the entire whole thereof, as payment of or upon the Obligations to the extent
18
of the value of such part or parts; (3) compelled to accept or allow any apportionment of
the Obligations to or among any separate parts of the Property; or (4) prevented from selling
the Property in one or more parcels or as an entirety and in such manner and order as the Lender in
its sole discretion may elect.
3.6 REMEDIES CUMULATIVE; LENDER’S DISCRETION
No remedy conferred upon or reserved to the Lender hereunder is or shall be deemed to be
exclusive but shall be cumulative, and may be exercised in the sole discretion of the Lender at any
time, in any manner, and in any order, and shall be in addition to and separate and distinct from
every other remedy given the Lender under this Deed of Trust, the Note, or any other Loan
Documents, or now or hereafter existing in favor of the Lender at law or in equity. The Lender, in
exercising any remedy provided herein under which it may make payments or perform actions which the
Borrower has failed to do or make, may do so in its sole discretion whenever in its opinion such
payment or performance is necessary or desirable to protect the full security intended by this Deed
of Trust. The Lender shall be entitled to collect all reasonable costs and expenses incurred in
pursuing any of its remedies hereunder, including without limitation, reasonable attorney’s fees
permitted by Rules of Court, costs of documentary evidence, abstracts and title reports.
3.7 NO WAIVER
Time and punctuality shall be of the essence in this Deed of Trust, but any delay or failure
by the Lender to exercise any right or remedy available to it upon the occurrence of an Event of
Default hereunder shall not constitute a waiver of such Event of Default or relinquishment of the
right in the future to enforce strict compliance by the Borrower with all of the covenants,
conditions and agreements herein, or of the right to exercise any such rights or remedies if such
Event of Default by the Borrower be continued or repeated. No modification, amendment, change, or
discharge of any term or provision of this Deed of Trust shall be valid or binding unless the same
is in writing and signed by both the Lender and the Borrower. The Lender may however, without
notice to or the consent of the Borrower, any other person primarily or contingently liable for the
payment of the Obligations or the holders of any subordinate lien on the Property, (1) release any
part of the security described herein, (2) release the obligation of any person primarily or
contingently liable for the Obligations secured hereby, (3) extend the time for payment or
otherwise modify the terms of the Obligations or this Deed of Trust, and (4) take any additional
security for the Obligations. No such release, extension, modification or additional security
shall impair or affect the lien of this Deed of Trust or its priority over any subordinate lien and
no such party shall be relieved of any liability by reason thereof.
3.8 NO MERGER
In the event the Lender shall acquire title to the Property by conveyance from the Borrower or
as a result of the foreclosure of any other mortgage which the Lender at any time holds with
respect to the Property, this Deed of Trust shall not merge in the fee of the Property
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but shall remain and continue as an existing and enforceable lien for the Obligations secured hereby until
the same shall be released of record by the Lender in writing.
ARTICLE 4.
MISCELLANEOUS PROVISIONS
MISCELLANEOUS PROVISIONS
4.1 PERSONAL LIABILITY
Notwithstanding anything to the contrary contained in this Deed of Trust, the liability of the
Borrower and its officers, directors, general partners, managers, members and principals for the
Obligations and for the performance of the other agreements, covenants and obligations contained
herein and in the Loan Documents shall be limited as set forth in Section 12 of the Note.
4.2 GOVERNING LAW; BINDING EFFECT
This Deed of Trust shall be governed by and construed, interpreted, regulated and enforced in
accordance with the applicable laws of the Commonwealth of Virginia. All covenants, conditions and
agreements herein shall run with the land, and shall be binding upon and inure to the benefit of
the respective heirs, successors and assigns of the Lender and the Borrower.
4.3 NOTICE
All notices, demands, requests or other communications to be sent by one party to the other
hereunder or required by law shall be in writing and shall be deemed to have been validly given or
served by delivery of the same in person to the intended addressee, or by depositing the same with
Federal Express or another reputable private courier service for next business day delivery, or by
depositing the same in the United States mail, postage prepaid, registered or certified mail,
return receipt requested, in any event addressed to the intended addressee: to the Borrower at its
address set forth on the first page of this Deed of Trust, and to the Lender at its address set
forth on the first page of this Deed of Trust, or at such other address as may be designated by
such party as herein provided. All notices, demands and requests shall be effective upon such
personal delivery, or one (1) business day after being deposited with the private courier service,
or two (2) business days after being deposited in the United States mail as required above.
Rejection or other refusal to accept or the inability to deliver because of changed address of
which no notice was given as herein required shall be deemed to be receipt of the notice, demand or
request sent. By giving to the other party hereto at least fifteen (15) days’ prior written notice
thereof in accordance with the provisions hereof, the parties hereto shall have the right from time
to time to change their respective addresses and each shall have the right to specify as its
address any other address within the United States of America.
4.4 NO AGENCY OR JOINT VENTURE
Nothing contained in this Deed of Trust shall be construed to cause the Borrower to become the
agent for, or joint venturer with, the Lender for any purpose whatsoever, nor shall
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the Lender be responsible for any shortage, discrepancy, damage, loss or destruction of any part of the Property
for whatever cause unless same is the direct result of the gross negligence or willful misconduct
of the Lender.
4.5 INVALID PROVISIONS
If any term or provision herein is judicially determined invalid or unenforceable then the
same shall either be severed from this Deed of Trust or if possible reduced in scope to the extent
necessary to be valid or enforceable.
4.6 INTERPRETATION
In this Deed of Trust, unless the context otherwise requires:
A. Words of the masculine gender shall mean and include correlative words of the feminine and
neuter genders and words importing the singular number shall mean and include the plural number and
vice versa.
B. Any headings or captions preceding the texts of the several sections of this Deed of Trust
shall be solely for convenience of reference and shall not constitute a part of this Deed of Trust,
nor shall they affect its meaning, construction or effect.
C. Any reference herein to “reasonable attorneys fees” shall mean fees charged by attorneys
selected by the Lender based upon such attorneys’ then prevailing hourly rates as opposed to any
presumption specified by any statute then in effect in the Commonwealth of Virginia.
4.7 INCORPORATION BY REFERENCE
Notwithstanding other provisions of this Deed of Trust, this Deed of Trust shall be construed
to impose and confer upon the parties hereto and the Lender all duties, rights and obligations
prescribed in Section 55-59, and Sections 55-59.1 through 55-59.4, of the Code of Virginia of 1950,
as amended (the “Virginia Code”) and to incorporate herein the following provisions of Section
55-60 of the Virginia Code by the following short form references:
Exemptions waived. | |||
Subject to call upon default. | |||
Renewal, extension or reinstatement permitted. | |||
Substitution of trustee permitted. | |||
Any trustee may act. |
NOW, THEREFORE, if all agreements and provisions contained herein are fully kept and performed
by the Borrower, and all the Obligations shall be fully paid in all respects, then the Trustee
shall execute and deliver to the Borrower a full written release which shall reconvey the Property
to the Borrower and terminate this Deed of Trust; and further provided that until
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such a full written release is executed and delivered, this Deed of Trust shall remain in full force and
effect.
[The Remainder of this Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Borrower has caused this instrument to be executed and delivered this
18th day of December, 2009.
Signed, sealed and delivered | XXXX HD WINCHESTER VA, LLC | |||||||||||
in the presence of: | ||||||||||||
By: | Xxxx REIT Advisors III, LLC Its Manager |
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/s/ Xxxx Xxxxx
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By: | /s/ Xxxx X. Xxxxx
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Its Senior Vice President | ||||||||||||
Duly Authorized | ||||||||||||
/s/ Xxxxx Xxxx
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STATE OF ARIZONA
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) | |||||||||||
) | ||||||||||||
COUNTY OF MARICOPA
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) |
On
this
17th day of December, 2009, before me, personally appeared Xxxx X.
Xxxxx, Senior Vice President of Xxxx REIT Advisors III, LLC, Manager of Xxxx HD Winchester VA, LLC,
whose identity was proved to me on the basis of satisfactory evidence to be the person whose name
is subscribed to this document, and who acknowledged that he signed the above document on behalf of
said company.
/s/
Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Notary Public
My Commission Expires: April 23, 2012
Seal:
Signature Page to Deed of Trust
SCHEDULE A
Description of Land
Description of Land
XXXX HD WINCHESTER VA, LLC | ||||
-to-
|
XXXXX X. XXXXXX, as
trustee, for the benefit of |
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PEOPLE’S UNITED BANK | ||||
Dated: December __, 2009 | ||||
TAX PARCEL ID NUMBER: 54-A-91-A | ||||
COUNTY: Xxxxxxxxx | ||||
RECORD AND RETURN TO: | ||||
Xxxxxx X. Xxxxxxxx, Esq. | ||||
Pepe & Hazard LLP | ||||
Xxxxxxx Square | ||||
000 Xxxxxx Xxxxxx | ||||
Xxxxxxxx, XX 00000 |