This instrument prepared by and when recorded, return to:
Kilpatrick Stockton LLP Hearst Tower, Suite 2500 214 North Tryon
Street Charlotte, North Carolina 28202 Attn: Jonathan J. Nugent,
Esq.
ASSUMPTION AND RELEASE
AGREEMENT
THIS ASSUMPTION AND RELEASE AGREEMENT
("Agreement") is made effective as of the 1
st day of June, 2004, by and among OXBRIDGE SQUARE
LIMITED PARTNERSHIP, a Virginia limited partnership (the
"Original Borrower"), OXBRIDGE SQUARE SHOPPING
CENTER, LLC, a Virginia limited liability company (the
"Assumptor") and LASALLE NATIONAL BANK, as Trustee
under that certain Pooling and Servicing Agreement ("PSA") dated
as of August l, 1998 for the holders of GMAC Commercial Mortgage
Securities, Inc. Pass-Through Certificates Series 1998-C2
("Noteholder").
RECITALS:
A.
Original Borrower executed and delivered to the
order of LAUREATE REALTY SERVICES, INC., a South Carolina
corporation ("Lender") a certain Promissory Note
dated June 2, 1998 (together with all addenda, modifications,
amendments, riders, exhibits and supplements thereto, the
"Note"), in the stated principal amount of
$4,517,500.00 which Note evidences a loan ("Loan")
made by Lender to Original Borrower. To secure the repayment of
the Note, the Original Borrower, among other things, executed
and delivered a Deed of Trust and Security Agreement dated June
2, 1998 (together with all addenda, modifications, amendments,
riders, exhibits and supplements thereto, the "Security
Instrument"), recorded in the Office of the Circuit
Court of Chesterfield County, Virginia on June 2, 1998, in Book
3293 at Page 228, together with an Assignment of Rents dated
June 2, 1998, and recorded in the same records at Book 3293,
Page 278, that grants a lien on certain property described on
Exhibit A attached hereto and incorporated herein by this
reference and more particularly described in the Security
Instrument (the "Premises"). The Original Borrower
is liable for the payment and performance of all of the Original
Borrower's obligations under the Note, the Security Instrument
(together with all addenda, modifications, amendments, riders,
exhibits and supplements, thereto) and all other documents
evidencing, securing, guaranteeing or otherwise pertaining to
the Loan (together with all addenda, modifications, amendments,
riders, exhibits and supplements thereto, the "Loan
Documents"), including, without limitation, those
documents listed on Exhibit B attached to this Agreement
and incorporated herein by this reference as though fully set
forth herein. The term New Loan Documents for the purposes of
this Agreement shall include the Hazardous Materials Indemnity
Agreement, the Guaranty and the Assignment of Management
Agreement (each as hereinafter defined).
B.
Each of the Loan Documents has been duly
assigned or endorsed to Noteholder.
C.
Noteholder as the holder of the Note and
beneficiary under the Security Instrument has been asked to
consent to the transfer of the Premises to the Assumptor (the
"Transfer") and the assumption by the Assumptor of
the obligations of the Original Borrower under the Loan
Documents (the "Assumption"). Provided, however,
Assumptor shall not assume the Guaranty of Recourse Obligations
of Borrower, the Environmental Indemnity Agreement and the
Conditional Assignment of Management Agreement and Subordination
of Management Fees, each dated June 2, 1998. Assumptor shall
execute and deliver to Noteholder
that certain Guaranty, Hazardous Materials
Indemnity Agreement and Assignment of Management Agreement dated
of even date herewith.
D.
Noteholder has agreed to consent to the Transfer
and Assumption subject to the terms and conditions stated
below.
E.
Section 3.08 of the PSA authorizes GMAC
Commercial Mortgage Corporation, as master servicer ("
Master Servicer "), on behalf of the
Noteholder, under certain terms and conditions to waive the due
on sale clause and facilitate the Transfer and Assumption, and
the Master Servicer has elected to do so on the terms and
conditions set forth in this Agreement. Master Servicer's
execution and delivery of this Agreement is binding upon the
Noteholder pursuant to the PSA. Laureate Capital LLC
("Laureate") executes this Agreement on behalf of Master
Servicer, as Sub-Servicer.
AGREEMENT:
In consideration of the foregoing and the mutual
covenants and promises set forth in this Agreement and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Noteholder, Original Borrower and
Assumptor agree as follows:
l.
Incorporation of Recitals .
The foregoing recitals are incorporated herein
as a substantive, contractual part of this Agreement.
2.
Assumption of Obligation. The Assumptor
agrees to and does hereby assume all of the payment and
performance obligations of the Original Borrower set forth in
the Note, the Security Instrument and the other Loan Documents,
except that Assumptor shall not assume all of the obligations of
the Original Borrower set forth in the Guaranty of Recourse
Obligations of Borrower, the Environmental Indemnity Agreement
and the Conditional Assignment of Management Agreement and
Subordination of Management Fees, each dated June 2, 1998, but
shall instead execute and deliver to Noteholder that certain
Guaranty, Hazardous Materials Indemnity Agreement and Assignment
of Management Agreement dated of even date herewith, in
accordance with their respective terms and conditions, as the
same may be modified by this Agreement, including without
limitation, payment of all sums due and payable under the Note.
The Assumptor further agrees to abide by and be bound by all of
the terms of the Loan Documents, all as though each of the Loan
Documents had been made, executed and delivered by the
Assumptor. The provisions of the Loan Documents are incorporated
herein by this reference, as if fully set forth herein. The
Assumptor acknowledges and agrees that any reference to the
Borrower in the Loan Documents shall be deemed to refer to the
Assumptor. The Assumptor hereby adopts, ratifies and confirms as
of the date hereof all of the representations, warranties and
covenants of Original Borrower contained in the Loan Documents,
in connection with the Loan, as if the Assumptor was the
Original Borrower named in the Loan Documents. In addition to
the foregoing, Assumptor has executed and delivered to
Noteholder that certain Hazardous Materials Indemnity Agreement
(the " Hazardous Substances Indemnity
").
3.
Original Borrower's Acknowledgments
Representations and Warranties . The Original Borrower
acknowledges, represents and warrants to Noteholder as of the
date of this Agreement noting that the June 1, 2004 payment has
not been made that:
2
(a)
The Note has an unpaid principal balance as of
the date of this Agreement, of $4,061,165.23 and prior to
default bears interest at the rate of seven and four tenths
percent (7.40%) per annum, subject to adjustment as set forth in
the Loan Agreement. There is presently a balance of $0.00 in the
tax escrow account, a balance of $11,094.75 in the insurance
escrow account and a balance of $39,499.38 in the reserves
escrow account, maintained by Noteholder in connection with the
Loan. Contemporaneously herewith, Original Borrower has
transferred and assigned to Assumptor all right, title and
interest of Original Borrower in and to such tax, insurance and
reserve escrow accounts.
(b)
The Note requires that monthly payments of
principal and interest in the amount of $33,090.64 be made on or
before the first day of each month, continuing to June 1, 2023,
if not sooner accelerated or paid.
(c)
The Security Instrument is a valid first lien on
the Premises for the full unpaid principal amount of the Loan
and all other amounts as stated in the Loan Documents.
(d)
There are no defenses, offsets or counterclaims to the Note, the
Security Instrument or the other Loan Documents.
(e)
There are no defaults by the Original Borrower under the provisions
of the Note, the Security Instrument or the other Loan Documents,
nor are there any conditions which with the giving of notice or the
passage of time or both may constitute a default by the Original
Borrower under the provisions of the Note, the Security Instrument
or the other Loan Documents.
(f)
All provisions of the Note, the Security
Instrument and the other Loan Documents are valid, in full force
and effect and enforceable in accordance with their terms.
(g)
There are no subordinate liens of any kind covering or relating to
the Premises other than those created or permitted by the Security
Agreement and Loan Documents, nor are there any mechanics liens or
liens for unpaid taxes or assessments encumbering the Premises, nor
has notice of a lien or notice of intent to file a lien been
received.
The Original Borrower understands and intends that Noteholder and
Assumptor will rely upon the acknowledgments, representations and
warranties contained herein.
4.
Assumptor's Representations and Warranties . The Assumptor
represents and warrants to Noteholder as of the date of this
Agreement that the Assumptor has no knowledge that any of the
representations made by the Original Borrower in paragraph 3 above
are not true and correct. The Assumptor understands and intends
that Noteholder will rely on the representations and warranties
contained herein.
.
Consent to Transfer and Assumption and
Noteholder Agreements . Noteholder hereby consents to the
Transfer and to the Assumption, subject to the terms and
conditions set forth in this Agreement. Noteholder's consent to
the Transfer of the Premises to the Assumptor
3
and Noteholder's consent to the Assumption, are
not intended to be and shall not be construed as a consent to
any subsequent transfer or assumption which requires the
Noteholder's consent pursuant to the terms of the Loan
Documents. Noteholder represents and warrants as of the date of
this Agreement, that the Noteholder has no actual direct
knowledge that there are any existing monetary Events of Default
under the Loan Documents. However, Noteholder is not waiving and
does not hereby waive any existing defaults if any in fact exist
and nothing herein is intended to be nor shall it be construed
to be a waiver of any existing defaults, material or immaterial,
which may in fact exist.The parties to this Agreement hereby
acknowledge and agree that a breach of the acknowledgements,
representations and warranties made by any of the parties shall
not in any way constitute a defense or give rise to any defense
or right of offset, abatement, diminution or rescission as
between Noteholder and any other party. As used in this
paragraph, "actual knowledge" means the actual state of mind
of the person or persons directly responsible for the
processing of the Noteholder's consent to the Transfer and does
not include any implied, constructive or imputed knowledge.
Assumption by the Assumptor . Assumptor
has executed and delivered to Noteholder that certain Guaranty
dated of even date herewith (the "Guaranty") and that certain
Hazardous Materials Indemnity Agreement dated of even
date herewith. Notwithstanding the foregoing, Assumptor's
liability under the Guaranty and Hazardous Materials Indemnity
Agreement shall be limited to those matters that relate to, or
are based upon events occurring in the period commencing on or
after the date hereof.
7.
Release of Original Borrower . In
reliance on the Original Borrower's and the Assumptor's
acknowledgments, representations and warranties in this
Agreement and in consideration for releases contained in
Paragraph 12 of this Agreement, Noteholder releases the Original
Borrower from its obligations under the Loan Documents,
provided that the Original Borrower is not released from
any liability pursuant to this Agreement, or the provisions of
the Environmental Materials Indemnity Agreement dated June 2,
1998, from Borrower for the Original Lender's benefit for any
liability that relates to, or is based upon events occurring in,
the period prior to the date hereof regardless of when any
environmental hazard or other condition giving rise to any such
liability thereunder is discovered. If any material element of
the representations and warranties contained herein as the same
relate to the Original Borrower is false as of the date of this
Agreement or in the event the Original Borrower takes or causes
any other party hereto (other than Noteholder) to take any
actions which are in contradiction with the provisions of
Paragraph 12 of this Agreement, then the release set forth in
this Paragraph 7 shall be deemed canceled effective as of the
date of this Agreement and the Original Borrower shall remain
obligated under the Loan Documents as though there had been no
such release.
8.
No Impairment of Lien . Nothing set
forth herein shall affect the priority or extent of the lien of
the Security Instrument or any of the other Loan Documents, nor,
except as expressly set forth herein, release or change the
liability of any party who may now be or after the date of this
Agreement may become liable, primarily or secondarily, under the
Loan Documents. Except as expressly modified hereby, the Note,
the Security Instrument, the Loan Agreement and the other Loan
Documents remain unchanged, are hereby ratified and reaffirmed
in all respects and shall remain in full force and effect and
this Agreement shall have no effect on the priority or validity
of the liens, operation and effect of the Security Instrument
and the other
4
Loan Documents, all of which are incorporated
herein by this reference. Nothing herein shall be construed to
constitute a novation of the Loan or of any of the Loan
Documents.
9.
Costs . The Assumptor agrees to pay all
fees and costs (including reasonable attorneys' fees) incurred
by Noteholder in connection with Noteholder's consent to and
approval of the Transfer of the Premises and the assumption fee
equal to 1.0% of the outstanding principal balance of the Loan
or $4,061,165.23 which is required to be paid by the Noteholder
in consideration of the consent to the Transfer and to the
Assumption.
10.
Financial Information . The Assumptor
represents and warrants to Noteholder that all financial
information and information regarding the management capability
of the Assumptor provided to Noteholder was true and correct as
of the date provided to Noteholder and remains materially true
and correct as of the date of this Agreement.
11.
Addresses . Assumptor's address for
notice hereunder and under the Loan Documents is:
Oxbridge Square Shopping Center, LLC c/o Kimco Realty
Corporation
3333 New Hyde Park Road
New Hyde Park, New York 11042 Attention: Legal Department
Facsimile: 516-869-7256
with a copy to:
Blue Ridge Real Estate Company Post Office Box 707
Blakeslee, Pennsylvania 18610 Attn: Patrick Flynn, President
Facsimile: 570.443.4709
12.
Complete Release . Assumptor and Original
Borrower hereby jointly and severally, unconditionally and
irrevocably release and forever discharge Lender, Noteholder,
Laureate and Master Servicer, and their respective successors,
assigns, agents, directors, officers, employees, and attorneys,
and each current or substitute trustee, if any, under the
Security Instrument (collectively, the
"Indemnitees") from all Claims, as defined below.
Original Borrower agrees to indemnify Indemnitees, and defend
and hold them harmless from any and all claims, losses, causes
of action, costs and expenses of every kind or character
incurred by or asserted against Indemnitees in connection with
the Claims, the Transfer or the breach by Original Borrower of
the Loan Documents, as amended herein, but only to the extent
that such claims, losses, causes of action, costs and expenses
arise out of or are in any way connected with or result from the
acts, actions or omissions of Original Borrower. Assumptor
agrees to indemnify Indemnitees, and defend and hold them
harmless from any and all claims, losses, causes of action,
costs and expenses of every kind or character incurred by or
asserted against Indemnitees in connection with the Claims, the
Transfer or the breach by Assumptor of the Loan Documents, as
amended herein, but only to the extent that such claims, losses,
causes of action,
5
costs and expenses arise out of or are in any way connected with or
result from the acts, actions or omissions of Assumptor.
As used in this Agreement, the term "Claims"
shall mean any and all possible claims, demands, actions, fees,
costs, expenses and liabilities whatsoever, known or unknown, at
law or in equity, originating in whole or in part, on or before
the date of this Agreement, which the Original Borrower or any
of its partners, limited partners, members, officers, directors,
shareholders, agents or employees, may now or hereafter have
against the Indemnitees, and irrespective of whether any such
Claims arise out of contract, tort, violation of laws, or
regulations, or otherwise, arising out of or relating to the
Loan or any of the Loan Documents, including, without
limitation, any contracting for, charging, taking, reserving,
collecting or receiving interest in excess of the highest 1
awful r ate applicable t hereto and any loss, cost or damage, of
any kind or character, arising out of or in any way connected
with or in any way resulting from the acts, actions or omissions
of Indemnitees, including any requirement that the Loan
Documents be modified as a condition to the transactions
contemplated by this Agreement, any charging, collecting or
contracting for prepayment premiums, transfer fees, or
assumption fees, any breach of fiduciary commitment, undue
influence, duress, economic coercion, violation of any federal
or state securities or Blue Sky laws or regulations, conflict of
interest, bad faith, malpractice, violations of the Racketeer
Influenced and Corrupt Organizations Act, intentional or
negligent infliction of mental or emotional distress, tortuous
interference with contractual relations, tortuous interference
with corporate governance or prospective business advance,
breach of contract, deceptive trade practices, libel, slander,
conspiracy or any claim for wrongfully accelerating the Note or
wrongfully attempting to foreclose on any collateral relating to
the Note but in each case only to the extent permitted by
applicable law. Original Borrower and Assumptor agree that
Noteholder has no fiduciary or similar obligations to any of
such parties and that their relationship is strictly that of
creditor and debtor. This release is accepted by Noteholder
pursuant to this Agreement and shall not be construed as an
admission of liability on the part of any party hereto. Original
Borrower and Assumptor hereby represent and warrant that they
are the current legal and beneficial owners of all Claims, if
any, released hereby and have not assigned, pledged or
contracted to assign or pledge any such Claims to any other
person.
13.
Usury . It is expressly stipulated
and agreed to be the intent of all of the parties hereto at all
times to comply with the applicable law governing the maximum
rate or amount of interest payable on or in connection with the
Note and the Loan (or applicable United States federal law to
the extent that it permits Noteholder to contract for, charge,
take, reserve or receive a greater amount of interest payable on
or in connection with the Note and the Loan than under
applicable law). If the applicable law is ever judicially
interpreted so as to render usurious any amount called for under
the Note or under the Security Instrument, this Agreement or any
other Loan Document, or contracted for, charged, taken, reserved
or received with respect to the Loan, or if Original Borrower or
Assumptor having paid any interest in excess of that permitted
by law, then it is the express intent of all of the parties that
all excess amounts theretofore collected by Noteholder or Lender
be credited to the then outstanding principal balance of the
Note (or, if the Note has been or would thereby be paid in full,
any surplus refunded to Original Borrower or Assumptor), and the
provisions of the Note, this Agreement, the Security Instrument
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
6
documents, so as to comply with such applicable
law, but so as to permit the recovery of the fullest amount
otherwise called for hereunder and thereunder. The right to
accelerate the maturity of the Note does not include the right
to accelerate any interest which has not otherwise accrued on
the date of such acceleration, and Noteholder does not intend to
collect any unearned interest in the event of acceleration. All
sums paid or agreed to be paid to Lender or Noteholder for the
use, forbearance or detention of the indebtedness evidenced by
the Note or other Loan Documents shall, to the extent permitted
by applicable law, be amortized, prorated, allocated and spread
through the full term of such indebtedness until payment in full
so that the rate or amount of interest on account of such
indebtedness does not exceed the applicable usury ceiling.
Notwithstanding any provision contained in the Note, the
Security Instrument, this Agreement or in any of the other Loan
Documents, as amended herein, that permits the compounding of
interest, including, without limitation, any provision by which
any of the accrued interest is added to the principal amount of
the Note, the total amount of interest that Original Borrower or
Assumptor is obligated to pay and Noteholder is entitled to
receive with respect to the Loan shall not exceed the amount
calculated on a simple (i.e., non-compounded) interest basis at
the maximum rate allowed by applicable law on principal amounts
actually advanced to or for the account of Original Borrower or
Assumptor, including all current and prior advances and any
advances made pursuant to the Security Instrument, this
Agreement or the other Loan Documents, as amended herein
(including, but not limited to, the payment of taxes, insurance
premiums and the like). The provisions of the Note and the other
Loan Documents limiting the amount of interest which may be
contracted for, charged or received on the indebtedness
evidenced thereby and dealing with the rights and duties of the
parties with respect to the charging or receiving of interest in
excess of the maximum rate, are hereby incorporated in this
Agreement by reference as though fully set forth herein. To the
extent permitted by law, the Original Borrower and the Assumptor
hereby waive and release all claims and defenses based upon
usury in connection with the execution and delivery of the Note
and the other Loan Documents and the borrowing of the funds
represented by the Loan.
14. Miscellaneous.
(a)
This Agreement shall be construed according to
and governed by the laws of the jurisdiction(s) which are
specified by the Security Instrument. In the event the Security
Instrument does not specifically state what jurisdictions laws
govern, this Agreement shall be construed according to and
governed by the laws in which the Premises is located without
regard to its conflicts of law principles.
(b)
If any provision of this Agreement is
adjudicated to be invalid, illegal or unenforceable, in whole or
in part, it will be deemed omitted to that extent and all other
provisions of this Agreement will remain in full force and
effect.
(c)
No change or modification of this Agreement
shall be valid unless the same is in writing and signed by all
parties hereto.
(d)
The captions contained in this Agreement are for
convenience of reference only and in no event define, describe
or limit the scope or intent of this Agreement or any of the
provisions or terms hereof.
7
(e)
This Agreement shall be binding upon and inure
to the benefit of the parties and their respective heirs, legal
representatives, successors and permitted assigns.
(f)
This Agreement may be executed in any number of
counterparts with the same effect as if all parties hereto had
signed the same document. All such counterparts shall be
construed together and shall constitute one instrument, but in
making proof hereof it shall only be necessary to produce one
such counterpart.
(g) THIS WRITTEN AGREEMENT AND THE OTHER LOAN
DOCUMENTS, AS AMENDED, REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
(h)
THIS AGREEMENT CONTAINS INDEMNIFICATION
PROVISIONS AS SET FORTH IN SECTION 12 HEREOF.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
8
[SIGNATURES CONTINUED FROM THE PREVIOUS PAGE]
ORIGINAL BORROWER:
OXBRIDGE SQUARE LIMITED PARTNERSHIP
By: / s/ James N. Plotkin (SEAL)
Name: James N. Plotkin
Title: General Partner
[SIGNATURES CONTINUE ON THE NEXT PAGE]
[SIGNATURES CONTINUED FROM THE PREVIOUS PAGE]
NOTEHOLDER:
LASALLE NATIONAL BANK AS TRUSTEE FOR THE HOLDERS OF GMAC COMMERCIAL
MORTGAGE SECURITIES, INC. MORTGAGE PASS-THROUGH CERTIFICATES SERIES
1998-C2
By:
GMAC Commercial Mortgage Corporation as Master Servicer
By: Laureate Capital LLC as Sub Servicer
By: /s/ Mark A. Hill
Name: Mark A. Hill
Title: Senior Vice President
[SIGNATURES CONTINUED FROM THE PREVIOUS PAGE]
ORIGINAL BORROWER:
OXBRIDGE SQUARE LIMITED PARTNERSHIP
By: /s/ James N. Plotkin
(SEAL)
Name: James N. Plotkin
Title: General Partner
[SIGNATURES CONTINUE ON THE NEXT PAGE]
CITY /COMMONWEALTH OF VIRGINIA
CITY /COUNTY OF HENRICO
I, the undersigned, a Notary Public in and for
the jurisdiction aforesaid, do hereby certify that James N.
Plotkin, whose name as General Partner of Oxbridge Square
Limited Partnership, a VIRGINIA limited partnership, is
signed to the foregoing and annexed instrument, did personally
appear before me this day and acknowledged the same to be the
act and deed of Oxbridge Square Limited Partnership.
GIVEN under my hand and seal this 1ST day of JUNE, 2004.
[NOTARY SEAL]
/s/ Janet K. Henry
NOTARY PUBLIC
My Commission expires: 2-28-07
CITY /COMMONWEALTH OF VIRGINIA
CITY /COUNTY OF HENRICO
I, the undersigned, a Notary Public in and for
the jurisdiction aforesaid, do hereby certify James N. Plotkin,
whose name as General Partner of Oxbridge Square Limited
Partnership, a VIRGINIA limited partnership, is signed to the
foregoing and annexed instrument, did personally appear before
me this day and acknowledged the same to be the act and deed of
Oxbridge Square Limited Partnership.
GIVEN under my hand and seal this 1ST day of JUNE, 2004.
[NOTARY SEAL]
/s/ Janet K. Henry
NOTARY PUBLIC
My Commission expires: 2-28-07
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
I, the undersigned, a Notary Public in and for
the jurisdiction aforesaid, do hereby certify that Mark A. Hill,
whose name as Senior Vice President of Laureate Capital as Sole
Servicer for GMAC Commercial Mortgage Corporation as Master
Servicer for LaSalle National Bank as Trustee for the Holders of
GMAC Commercial Mortgage Securities, Inc. Mortgage Pass-Through
Certificates Series 1998-C2 is signed to the foregoing and
annexed instrument, did personally appear before me this day and
acknowledged the same to be the act and deed of LaSalle National
Bank.
GIVEN under my hand and seal this 1ST day of JUNE, 2004. ,
[NOTARY SEAL]
/s/ Catherine E. Fogelman
NOTARY PUBLIC
My Commission expires: 7/13/04
EXHIBIT A - LEGAL DESCRIPTION OF THE
PREMISES
(Legal Description) BOOK 3293 PAGE
287
ALL that certain lot, piece or parcel of real estate
together with improvements thereon and appurtenances thereto
belonging, lying and being in Midlothian District, Chesterfield
County, Virginia, containing in the aggregate 14.3691 acres, more
or less, and more particularly described as follows:
Commencing at a monument found where the east line of Courthouse
Road meets the south line of Hull Street Road; thence continuing
along the south line of Hull street Road N67°23' 11"E a
distance of 163.07 feet to a rod found , the point of
beginning; Thence along the south line of Hull Street Road
N67°9'51"E a distance of 102.51 feet to a rod set;
Thence N71°17'45"E a distance of 133.26 feet to a rod
set;
Thence N67°49'41"E a distance of 341.03 feet to a rod set;
Thence S80°12'49"E a distance of 45.33 feet to a rod set on the
west line of Oxbridge Road as relocated;
Thence conti nu ing along the west line of Oxbridge Road as
relocated S22°11'39"E a distance of 324.39 feet to a R.R. spike
found;
Thence along a curve to the right having a radius of 300.00 feet, a
chord bearing of S08°44'27"W, a chord of 308.44 feet and a
length of 323.95 feet to a rod found;
Thence along a curve to the left having a radius of 430.00, feet.,
a chord bearing of S26°00'39"W, a chord of 203.17 feet and a
length of 205.11 feet to a rod found;
Thence departing the west line of Oxbridge Road as relocated
S67°48'21"W a distance of 578.47 feet to a rod found;
Thence N83°23'11"W a distance of 153.35 feet to a rod found;
Thence S07°31'21"W a distance of 96.98 feet to a R.R. spike
found;
Thence S28°42'43"W a distance of 81.36 feet to a rod set on the
east line of Courthouse Road;
Thence continuing along the east line of Courthouse Road
N57°10 ' 31"W, a distance of 49.34 feet to a rod
set;
Thence N06°36'07" a distance of 451.48 feet to a rod set;
Thence N83°22'38"W a distance of 5.64 feet to a rod set;
Thence N09°20'59"E a distance of 10.81 feet to a monument
found;
Thence N05 0 35 ' 20"E a distance of 162.96
feet to a monument found;
Thence N07°59'01"W a distance of 16-95 feet to a rod set;
BOOK 3293 PAGE 288
Thence departing the east line of Courthouse Road N67°48'21"E a
distance of 237.75 feet to a rod found;
Thence N19°06'09"W a distance of 210.00 feet to the point of
beginning, containing 625,917 square feet or 14.3691 acres.
Being the same real estate leased to Oxbridge
Square Limited Partnership, a Virginia limited partnership, by
Memorandum of Lease from Aetna Life Insurance Company, dated
October 20, 1981, recorded October 30, 1981, in the Clerk's
office, Circuit Court, Chesterfield County, Virginia, in Deed
Book 1567, page 645.
AND ALSO BEING the same real estate conveyed to Aetna Life
Insurance Company a Connecticut corporation, by deed from Oxbridge
Square Limited Partnership, a Virginia limited partnership, dated
October 20, 1981, recorded October 20, 1981, in the Clerk's office,
Circuit Court, Chesterfield County, Virginia, in Deed Book 1567,
page 640.
VIRGINIA:
IN THE CLERK'S. OFFICE OF THE CIRCUIT COURT OF CHESTERFIELD COUNTY,
THE 2 DAY OF JUN 1998. THIS DEED WAS PRESENTED
AND WITH THE CERTIFICATE .... , ADMI TTED TO
RECORD AT 14:25 O'CLOCK THE TAX IMPOSED BY SECTION 58.1-802 IN THE
AMOUNT OF
$.00 HAS BEEN PAID.
TESTE: JUDY L. WORTHINGTON, CLERK
EXHIBIT B LOAN DOCUMENTS
1.
Promissory Note dated June 2, 1998 made by the
Original Borrower and payable to the Lender, in the stated
principal amount of $4,517,500.00 (together with all addenda,
modifications, amendments, riders, exhibits and supplements
thereto, the "Note").
2.
Deed of Trust and Security Agreement dated June
2, 1998 made by the Original Borrower to Trustee for the benefit
of the Lender (together with all addenda, modifications,
amendments, riders, exhibits and supplements thereto, the
“Security Instrument") recorded in
the Office of the Circuit Court of Chesterfield County, Virginia
on June 2, 1998, in Book 3293 at Page 228.
3.
Assignment of Leases and Rents dated June 2, 1998 made by the
Original Borrower for the benefit of the Lender (together will all
addenda, modifications, amendments, riders, exhibits and
supplements thereto, the "Assignment of Leases and
Rents"), recorded in the Office of the Circuit Court of
Chesterfield County, Virginia on June 2, 1998, in Book 3293 at Page
278.
EXHIBIT B-1
PROMISSORY NOTE
$4,517,500.00
June 2 1998
FOR VALUE RECEIVED OXBRIDGE SQUARE LIMITED
PARTNERSHIP, a Virginia limited partnership, as maker, having
its principal place of business at 7113 Staples Mill Road, P.O.
Box 9462, Richmond, Virginia 23226, Attn: James N. Plotkin
("Borrower"), hereby unconditionally promises to pay to the
order of LAUREATE REALTY SERVICES, INC., a South Carolina
corporation, having an address at 227 West Trade Street, Suit
\0, Charlotte, North Carolina 28202, Attn: Julie Johnson
("Lender"), or at such other place as the holder hereof may from
time to time designate in writing, the principal sum of Four
Million Five Hundred Seventeen Thousand Five Hundred and No/100
Dollars ($4,517,500.00), in lawful money of the Unitec~''St~t9,
\ America with interest thereon to be computed from
the date of this Note at the Applicable Interest Rate (defined
below), and to be paid in installments as provided herein.
1.
CERTAIN DEFINED TERMS
As used herein the following terms shall have
the meanings set forth below:
(a)
"Applicable Interest Rate" shall mean an
interest rate equal to 7.40% per annum.
(b)
"Constant Monthly Payment" shall mean a payment
equal to $33,090.64.
(c)
"Loan" shall mean the loan evidenced by this
Note.
(d)
"Loan Documents" shall mean this Note, the
Security Instrument, and any other documents or instruments
which now or shall hereafter wholly or partially secure or
guarantee payment of this Note or which have otherwise been
executed by Borrower and/or any other person in connection with
the Loan.
(e)
"Lockout Period Expiration Date" shall mean the
tenth (10th) anniversary of (i) the date hereof, if this Note is
dated as of the first day of a calendar month; or (ii)
otherwise, the first day of the next succeeding calendar month
after the date hereof.
"Maturity Date" shall mean June 1, 2023.
(g)
"Monthly Payment Date" shall mean the first day
of each calendar month prior to the Maturity Date commencing on
(i) the first day of the next succeeding calendar month after
the date hereof if this Note is dated as of the first day of a
month; or (ii) the first day of the second succeeding calendar
month after the date hereof if this Note is dated as of a date
other than the first day of a month.
(h)
"Security Instrument" shall mean the Deed of
Trust and Security Agreement dated the date hereof in the
principal sum of Four Million Five Hundred Seventeen Thousand
Five Hundred and No/100 Dollars ($4,517,500.00) given by
Borrower to (or for the benefit of) Lender covering the
leasehold estate of Borrower in certain premises located in
Chesterfield County, State of Virginia, and other property, as
more particularly described therein (collectively, the
"Property").
2.
PAYMENT TERMS
(a)
If this Note is dated as of a date other than
the first day of a calendar month, a payment shall be due from
Borrower to Lender on the date hereof on account of all interest
scheduled to accrue on the principal sum from and after the date
hereof through and including the last day of the current
calendar month. The Constant Monthly Payment shall be due from
Borrower to Lender on each Monthly Payment Date, with each
Constant Monthly Payment to be applied as follows: (i) first, to
the payment of interest which has accrued during the preceding
calendar month computed at the Applicable Interest Rate, and
(ii) the balance toward the reduction of the principal sum. The
balance of the principal sum and all interest thereon shall be
due and payable on the Maturity Date. Interest on the principal
sum of this Note shall be calculated on the basis of a 360-
d ay y ear based on twelve (12) thirty (30) day
months except that interest due and payable for a period o
f less than a full month shall be calculated by
multiplying the actual number of days elapsed in such period by
a daily rate based on said 360-day year.
(b)
Unless payments are made in the required amount
in immediately available funds at the place where this Note is
payable, remittances in payment of all or any part of the Debt
(defined below) shall not, regardless of any receipt or credit
issued therefor, constitute payment until the required amount is
actually received by Lender in funds immediately available at
the place where this Note is payable (or any other place as
Lender, in Lender's sole discretion, may have established by
delivery of written notice thereof to Borrower) and shall be
made and accepted subject to the condition that any check or
draft may be handled for collection in accordance with the
practice of the collecting bank or banks.
3.
DEFAULT AND ACCELERATION
(a)
The whole of the principal sum of this Note, (b)
interest, default interest, late charges and other sums, as
provided in this Note, the Security Instrument or the other Loan
Documents, (c) all other monies agreed or provided to be paid by
Borrower in this Note, the Security Instrument or the other Loan
Documents, (d) all sums advanced pursuant to the Security
Instrument to protect and preserve the Property (defined below)
and the lien and the security interest created thereby, and (e)
all sums advanced and costs and expenses incurred by Lender in
connection with the Debt (defined below) or any part thereof,
any renewal, extension, or change of or substitution for the
Debt or any part thereof, or the acquisition or perfection of
the security therefor, whether made or incurred at the request
of Borrower or Lender (all the sums referred to in (a) through
(e) above shall collectively be referred to as the "Debt") shall
become immediately due and payable at the option of Lender if
any payment required in this Note prior to the Maturity Date is
not paid prior to the expiration of any applicable notice and
grace periods, herein or under the terms of the Security
Instrument or any of the other Loan Documents (collectively, an
"Event of Default"). For the purposes of this Note, provided
Borrower is paying a specific amount due under the Loan
Documents by direct electronic transfer, Borrower shall be
entitled to receive five (5) days written notice of non-payment
default as it concerns that specific payment.
4.
DEFAULT INTEREST
Borrower does hereby agree that upon the
occurrence of an Event of Default, Lender shall be entitled to
receive and Borrower shall pay interest on the entire unpaid
principal sum at a rate (the "Default Rate") equal to (i) the
greater of (a) the Applicable Interest Rate plus three percent
(3%) and (b) the Prime Rate (as hereinafter defined) plus four
percent (4%) or (ii) the maximum interest rate that Borrower may
by law pay, whichever is lower. If the Event of Default is a
monetary default, the Default Rate shall be computed from the
occurrence of the Event of Default until the earlier of the date
upon which the Event of Default is cured or the date upon which
the Debt is paid in full. If the Event of Default is a
non-monetary default, the Default Rate shall be computed from
the date of receipt of notice of said Event of Default until the
earlier of the date upon which the Event of Default is cured or
the date
upon which the Debt is paid in full. Interest
calculated at the Default Rate shall be added to the Debt, and
shall be deemed secured by the Security Instrument. This clause,
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 Lender by reason of the
occurrence of any Event of Default.
The "Prime Rate" shall mean the annual rate of
interest publicly announced by Citibank, N.A. in New York, New
York, as its base rate, as such rate shall change from time to
time. If Citibank, N.A. ceases to announce a base rate, Prime
Rate shall mean the rate of interest published in The Wall
Street Journal from time to time as the Prime Rate. If
more than one Prime Rate is published in The Wall Street Journal
for a day, the average of the Prime Rates shall be used, and
such average shall be rounded up to the nearest one-quarter of
one percent (.25%). If The Wall Street Journal ceases to
publish the "Prime Rate", the Lender shall select an equivalent
publication that publishes such "Prime Rate", and if such prime
rates are no longer generally published or are limited,
regulated or administered by a governmental or
quasi-governmental body, then Lender shall select a comparable
interest rate index.
5. PREPAYMENT
Borrower shall not have the right or privilege
to prepay all or any portion of the unpaid principal balance of
this Note until the Lockout Period Expiration Date. From and
after the Lockout Period Expiration Date, provided no Event of
Default exists, the principal balance of this Note may be
prepaid, in whole but not in part, upon: (i) not less than 30
days and not more than 60 days prior written notice (the
"Prepayment Notice") to Lender specifying the scheduled payment
date on which prepayment is to be made (the "Prepayment Date");
(ii) payment of all accrued and unpaid interest on the
outstanding principal balance of this Note to and including the
Prepayment Date together with a payment of all interest which
would have accrued on the principal balance of this Note to and
including the first day of the calendar month immediately
following the Prepayment Date, if such prepayment occurs on a
date which is not the first day of a calendar month (the
"Shortfall Interest Payment"); (iii) payment of all other sums
then due under this Note, the Security Instrument and the other
Loan Documents and (iv) if the Prepayment Date occurs prior to
the date which is six (6) months prior to the Maturity Date,
payment of a prepayment consideration (the "Prepayment
Consideration") in an amount equal to the greater of: (A) one
(1%) percent of the principal amount of this Note being prepaid;
or (B) the present value of a series of payments each equal to
the Payment Differential (hereinafter defined) and payable on
each Monthly Payment Date over the remaining original term of
this Note and on the Maturity Date discounted at the
Reinvestment Yield (hereinafter defined) for the number of
months remaining from the Prepayment Date to each such Monthly
Payment Date and the Maturity Date. The term "Reinvestment
Yield" as used herein shall be equal to the lesser of (a) the
yield on the U.S. Treasury issue (primary issue) with a maturity
date closest to the Maturity Date, or (b) the yield on the U.S.
Treasury issue (primary issue) with a term equal to the
remaining average life of the Debt, with each such yield being
based on the bid price for such issue as published in The Wall
Street Journal on the date that is 14 days prior to the
Prepayment Date set forth in the Prepayment Notice (or, if such
bid price is not published on that date, the next preceding date
on which such bid price is so published) and converted to a
monthly compounded nominal yield. The term "Payment
Differential" as used herein shall be equal to (x) the
Applicable Interest Rate minus the Reinvestment Yield, divided
by (y) 12 and multiplied by (z) the principal sum outstanding on
such Prepayment Date after application of the Constant Monthly
Payment (if any) due on such Prepayment Date, provided that the
Payment Differential shall in no event be less than zero. In no
event, however, shall Lender be required to reinvest any
prepayment proceeds in U.S. Treasury obligations or otherwise.
Lender shall notify Borrower of the amount, and the basis of
determination, of the required Prepayment Consideration. If a
Prepayment Notice is given by Borrower to Lender pursuant to
this Article 5, the principal balance of this Note and the other
sums required under this Article shall be due and payable on the
Prepayment Date.
Lender shall not be obligated to accept any
prepayment of the principal balance of this Note unless it is
accompanied by all sums due in connection therewith.
Notwithstanding anything contained
herein to the contrary, provided no Event of
Default exists, no Prepayment Consideration shall be due in
connection with a complete or partial prepayment resulting from
the application of insurance proceeds or condemnation awards
pursuant to Sections 3.2 and 3.5 of the Security Instrument. In
the event of any permitted partial prepayment of the principal
balance of this Note, the amount of principal prepaid (but not
including any Prepayment Consideration or interest) shall be
applied to the principal last due under this Note and shall not
release Borrower from the obligation to pay the Constant Monthly
Payments next becoming due under this Note and the Constant
Monthly Payment shall not be adjusted or recalculated as a
result of such partial prepayment.
If a Default Prepayment (defined herein) occurs
prior to the date which is six (6) months prior to the Maturity
Date, Borrower shall pay to Lender the entire Debt, including,
without limitation, the Prepayment Consideration.
For purposes of this Note, the term "Default
Prepayment" shall mean a prepayment of the principal amount of
this Note made during the continuance of any Event of Default or
after an acceleration of the Maturity Date under any
circumstances, including, without limitation, a prepayment
occurring in connection with reinstatement of the Security
Instrument provided by statute under foreclosure proceedings or
exercise of a power of sale, any statutory right of redemption
exercised by Borrower or any other party having a statutory
right to redeem or prevent foreclosure, any sale in foreclosure
or under exercise of a power of sale or other
Notwithstanding any provision of this Article S
to the contrary, Lender may require Borrower, in lieu of a
prepayment as contemplated in the first paragraph of this
Article S, to deliver to Lender the Defeasance Collateral
(hereinafter defined) in the manner contemplated herein. After
Lender's receipt of the Prepayment Notice, Lender shall,' if it
so elects, advise Borrower that, in lieu of a prepayment, the
Defeasance Collateral shall be required ,
i n which event Borrower shall be entitled to a
release of the Property (hereinafter defined) from the lien of
the Security Instrument and any liens created by the other Loan
Documents upon satisfaction of the following:
I.
Lender shall have received written confirmation
from the rating agencies that have rated the REMIC "real estate
mortgage investment conduit" (defined in Section 860D of the
Internal Revenue Code of 1986, as amended from time to time or
any successor statute (the "Code"))
("REMIC") related to the Securities (as defined
in the Security Instrument) that such substitution of Defeasance
Collateral will not result in a downgrade, withdrawal or
qualification of the ratings then assigned to any of the
Securities: provided, however, that in the event that
Lender or its agent is unable to obtain such confirmation, the
Lender or its agent shall so advise Borrower and Borrower will
then be subject to the other provisions of this Article S set
forth above;
II.
all accrued and unpaid interest and all other
sums due under this Note, the Security Instrument and other Loan
Documents up to the date of the delivery of the Defeasance
Collateral (the "Release Date"), including, without limitation,
all costs and expenses incurred by Lender or its agents in
connection with such release (including, without limitation, the
review of the proposed Defeasance Collateral and the preparation
of the Defeasance Security Agreement (as hereinafter defined)
and the related documentation), shall be fully paid by Borrower
on or before the Release Date; and
III. Borrower shall have delivered to Lender on
or before the Release Date:
(a)
a pledge and security agreement, in form and
substance satisfactory to Lender in its sole discretion,
creating a first priority security interest in favor of Lender
in the Defeasance Collateral (the
"Defeasance Security Agreement"), which shall
provide, among other things, that any excess received by Lender
from the Defeasance Collateral over the amount payable by
Borrower hereunder shall be refunded to Borrower promptly
following each Monthly Payment Date and the Maturity Date;
(b)
direct, non-callable obligations of the United
States of America that provide for payments prior, but as close
as possible, to all successive Monthly Payment Dates occurring
after the Release Date and the Maturity Date, with each such
payment being equal to or greater than the amount of the
corresponding Constant Monthly Payment required to be paid under
this Note for the balance of the term hereof and the amount
required to be paid on the Maturity Date (the "Defeasance
Collateral"), each of which shall be duly endorsed by the holder
thereof as directed by Lender or accompanied by a written
instrument of transfer in form and substance wholly satisfactory
to Lender (including, without limitation, such instruments as
may be required by the depository institution holding such
securities or the issuer thereof, as the case may be, to
effectuate book-entry transfers and pledges through the
book-entry facilities of such institution) in order to perfect
upon the delivery of the Defeasance Security Agreement the first
priority security interest therein in favor of the Lender in
conformity with all applicable state and federal laws governing
the granting of such security interests. The Defeasance
Collateral may be purchased by Lender on Borrower's behalf, in
which case Borrower shall deposit with Lender on the Release
Date a sum sufficient to purchase the Defeasance Collateral;
(c)
a certificate by Borrower's independent public
accountant certifying that all of the requirements set forth in
this Clause III have been fully satisfied;
(d)
an opinion of counsel acceptable to L dated as
of the Release Date, in form reasonably satisfactory to Lender
stating, among other things, that the Defeasance Collateral has
been duly and validly assigned and delivered to Lender and
Lender has a valid, perfected, first priority lien and security
interest in the Defeasance Collateral; and
(e)
such other certificates, documents or
instruments as Lender may reasonably require.
Upon compliance with the foregoing requirements
relating to the delivery of the Defeasance Collateral, the
Property shall be released from the lien of the Security
Instrument and the other Loan Documents and the Defeasance
Collateral shall constitute collateral which shall secure this
Note and the Debt. Lender will, at Borrower's expense, execute
and deliver any agreements reasonably requested by Borrower to
release the lien of the Security Instrument from the Property.
Upon the delivery of the Defeasance Collateral to Lender in
accordance with this Article, Borrower shall have no further
right to prepay this Note pursuant to the other provisions of
this Article 5 or otherwise nor, without limiting or terminating
the survival of certain obligations of Borrower which arose
prior to the date of substitution of the Defeasance Collateral,
shall Borrower have any further liability to Lender for
performance of any obligations secured by the Defeasance
Collateral and, from that day forward, Borrower shall be
released from such obligations.
Lender shall have the right in connection with
the exercise of its rights under this Article 5 to require
delivery of the Defeasance Collateral in lieu of a cash
prepayment, to require an entity designated by Lender to acquire
the Defeasance Collateral and to assume that portion of the
obligations of Borrower which is secured by such Defeasance
Collateral, in which event Borrower shall thereafter be released
from such obligations.
6. SECURITY
This Note is secured by the Security Instrument
and the other Loan Documents. The Security Instrument intended
to be duly recorded in the public records of the county where
the Property is located.
All of the terms, covenants and conditions
contained in the Security Instrument and the other Loan
Documents are hereby made part of this Note to the same extent
and with the same force as if they were fully set forth
herein.
7.
SAVINGS CLAUSE
This Note is subject to the express condition
that at no time shall Borrower be obligated or required to pay
interest on the principal balance due hereunder at a rate which
could subject Lender to either civil or criminal liability as a
result of being in excess of the maximum interest rate which
Borrower is permitted by applicable law to contract or agree to
pay. If by the terms of this Note, Borrower is at any time
required or obligated to pay interest on the principal balance
due hereunder at a rate in excess of such maximum rate, the
Applicable Interest Rate or the Default Rate, as the case may
be, shall be deemed to be immediately reduced to such maximum
rate and all previous payments in excess of the maximum rate
shall be deemed to have been payments in reduction of principal
and not on account of the interest due hereunder. All sums
paid or agreed to be paid to Lender 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 Note until payment in
full so that the rate or amount of interest on account of the
Debt does not exceed the maximum lawful rate of interest from
time to time in effect and applicable to the Debt for so long as
the Debt is outstanding.
8.
LATE CHARGE
If any sum payable under this Note is not paid
prior to the fifth (5th) day after the date on which it is due,
Borrower shall pay to Lender upon demand an amount equal to the
lesser of five percent (5%) of the unpaid sum or the maximum
amount permitted by applicable law to defray the expenses
incurred by Lender in handling and processing the delinquent
payment and to compensate Lender for the loss of the use of the
delinquent payment and the amount shall be secured by the
Security Instrument and the other Loan Documents.
9.
NO ORAL CHANGE
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 Borrower or Lender, 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.
10.
JOINT AND SEVERAL LIABILITY
If Borrower consists of more than one person or
party, the obligations and liabilities of each person or party
shall be joint and several.
11. WAIVERS
Borrower 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 and notice of protest and non-payment and all
other notices of any land. No release of any security for the
Debt or extension of time for payment of this Note or any
installment hereof, and no alteration, amendment or waiver of
any provision of this Note, the Security Instrument or the other
Loan Documents made by agreement between Lender or any other
person or party shall release, modify, amend, waive, extend,
change, discharge, terminate or affect the liability of
Borrower, and any other person or entity who may become liable
for the payment of ail or any part of the Debt, under this Note,
the Security Instrument or
the other Loan Documents. No notice to or demand
on Borrower shall be deemed to be a waiver of the obligation of
Borrower or of the right of Lender to take further action
without further notice or demand as provided for in this Note,
the Security Instrument or the other Loan Documents. In
addition, acceptance by Lender of any payment in an amount less
than the amount then due shall be deemed an acceptance on
account only, and the failure to pay the entire amount then due
shall be and continue to be an Event of Default. If Borrower is
a partnership, the agreements herein contained shall remain in
force and applicable, notwithstanding any changes in the
individuals comprising the partnership, and the term "Borrower,"
as used herein, shall include any alternate or successor
partnership, but any predecessor partnership and their partners
shall riot thereby be released from any liability. If Borrower
is a corporation or limited liability company, the agreements
contained herein shall remain in full force and applicable
notwithstanding any changes in the shareholders or members
comprising, or the officers and directors or managers relating
to, the corporation or limited liability company, and the term
"Borrower" as used herein, shall include any alternative or
successor corporation or limited liability company, but any
predecessor corporation or limited liability company shall not
be relieved of liability hereunder. (Nothing in the foregoing
sentence shall be construed as a consent to, or a waiver of, any
prohibition or restriction on transfers of interests in a
partnership, corporation or limited liability company which may
be set forth in the Security Instrument or any other Loan
Document.)
12. TRANSFER
Upon the transfer of this Note, Borrower hereby
waiving notice of any such transfer, Lender may deliver all the
collateral mortgaged, granted, pledged or assigned pursuant to
the Security Instrument and the other Loan Documents, or any
part thereof, ."to the transferee who shall thereupon become
vested with all the rights herein or under applicable law given
to Lender with respect thereto, and Lender shall thereafter
forever be relieved and fully discharged from any liability or
responsibility in the matter; but Lender shall retain all rights
hereby given to it with respect to any liabilities and the
collateral not so transferred.
13.
WAIVER OF TRIAL BY JURY
BORROWER HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR
OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THE LOAN, THE
APPLICATION FOR THE LOAN, THIS NOTE, THE SECURITY INSTRUMENT OR
THE OTHER LOAN DOCUMENTS OR ANY ACTS OR OMISSIONS OF LENDER, ITS
OFFICERS, EMPLOYEES, DIRECTORS OR AGENTS IN CONNECTION
THEREWITH.
14. EXCULPATION
(a)
Except as otherwise provided herein, in the
Security Instrument or in the other Loan Documents, Lender shall
not enforce the liability and obligation of Borrower to perform
and observe the obligations contained in this Note or the
Security Instrument by any action or proceeding wherein a money
judgment shall be sought against Borrower, except that Lender
may bring a foreclosure action, action for specific performance
or other appropriate action or proceeding to enable Lender to
enforce and realize upon this Note, the Security Instrument, the
other Loan Documents, and the interest in the Property, the
Rents (as defined in the Security Instrument) and any other
collateral given to Lender created by this Note, the Security
Instrument and the other Loan Documents; provided, however, that
any judgment in any such action or proceeding shall be
enforceable against Borrower only to the extent of Borrower's
interest in the Property, in the Rents and in any other
collateral given to Lender. Lender, by accepting this Note and
the Security Instrument, agrees that it shall not, except as
otherwise provided in
Section 10.10 of the Security Instrument, sue
for, seek or demand any deficiency judgment against Borrower in
any such action or proceeding, under or by reason of or under or
in connection with this Note, the other Loan Documents or the
Security Instrument. The provisions of this Article shall not,
however, (i) constitute a waiver, release or impairment of any
obligation evidenced or secured by this Note, the other Loan
Documents or the Security Instrument; (ii) Intentionally
Deleted; (iii) impair the right of Lender to name Borrower as a
party defendant in any action or suit for judicial foreclosure
and sale under the Security Instrument; (iv) affect the validity
or enforceability of any indemnity, guaranty, master lease or
similar instrument made in connection with this Note, the
Security Instrument, or the other Loan Documents; (v) impair the
right of Lender to obtain the appointment of a receiver; (vi)
impair the enforcement of the Assignment of Leases and Rents
executed in connection herewith; and (vii) impair the right of
Lender to enforce the provisions of Sections 10.10, 11.2 and
11.3 of the Security Instrument.
(b)
Notwithstanding the provisions of this Article
14 to the contrary, Borrower shall be personally liable to
Lender for the Losses (as defined in the Security Instrument) it
incurs due to: (i) fraud or intentional misrepresentation by
Borrower, its agents or principals in connection with the
execution and the delivery of this Note, the Security Instrument
or the other Loan Documents, (ii) Borrower's misapplication or
misappropriation of (A) Rents received by Borrower after the
occurrence of an Event of Default, (B) tenant security deposits
or Rents collected in advance, or (C) insurance proceeds or
condemnation awards, or (iii) Borrower's failure to comply with
the provisions of Section 5.9 of the Security Instrument.
(c)
In the event the Property or any part thereof
shall become an asset in a voluntary bankruptcy or insolvency
proceeding, and in connection solely with lender pursuing any
and all remedies granted herein Lender is hereby irrevocably
appointed as Borrower's attorney-in-fact, coupled with an
interest, with exclusive power to file and prosecute, to the
exclusion of Borrower, any proofs of claim, complaints, motions,
applications, notices and other documents, in any case in
respect of Borrower.
(d)
Nothing herein shall be deemed to be a waiver of
any right which Lender may have under Sections 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 or to require that
all collateral shall continue to secure all of the Debt owing to
Lender in accordance with this Note, the Security Instrument and
the other Loan Documents.
15. AUTHORITY
Borrower (and the undersigned representative of
Borrower, if any) represents that Borrower has full power,
authority and legal right to execute and deliver 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 Borrower.
16.
APPLICABLE LAW
This Note shall be governed, construed, applied
and enforced in accordance with the laws of the state in which
the Property is located and the applicable laws of the United
States of America.
17.
COUNSEL FEES
In the event that it should become necessary to
employ counsel to collect the Debt or to protect or foreclose
the security therefor, Borrower also agrees to pay all
reasonable fees and expenses of Lender, including, without
limitation, reasonable attorney's fees for the services of such
counsel whether or not suit be brought.
18. NOTICES
All notices or other written communications
hereunder shall be deemed to have been properly given (i) upon
delivery, if delivered in person or by facsimile transmission
with receipt acknowledged by the recipient thereof, (ii) one (1)
Business Day (defined below) after having been deposited for
overnight delivery with any reputable overnight courier service,
or (iii) three (3) Business Days after having been deposited in
any post office or mail depository regularly maintained by the
U.S. Postal Service and sent by registered or certified mail,
postage prepaid, return receipt requested, addressed as
follows:
If to Borrower:
Oxbridge Square Limited Partnership
7113 Staples Mill Road
P.O. Box 9462
Richmond, Virginia 23226
Attention: James N. Plotkin
Facsimile No. (804) 266-4977
With a copy to:
Cook, Ware & Heyward
P.O. Box 29629
Richmond, Virginia 23242
Attention: Allan M. Heyward, Jr., Esq.
Facsimile No. (804) 762-9608
If to Lender:
Laureate Realty Services, Inc.
227 West Trade Street, Suite 400
Charlotte, North Carolina 28202
Attention: Julie Johnson
Facsimile No. (704) 332-4313
With a copy to:
Kennedy Covington Lobdell & Hickman,
L.L.P.
NationsBank Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28202
Attention: Jonathan J. Nugent, Esq.
Facsimile No_ (704) 331-7598
or addressed as such party may from time to time
designate by written notice to the other parties.
Either party by notice to the other may
designate additional or different addresses for subsequent
notices or communications.
"Business Day" shall mean a day upon which
commercial banks are not authorized or required by law to close
in New York, New York.
19. MISCELLANEOUS
(a)
Wherever pursuant to this Note (i) Lender
exercises any right given to it to approve or disapprove, (ii)
any arrangement or term is to be satisfactory to Lender, or
(iii) any other decision or determination is to be made by
Lender, the decision of Lender to approve or disapprove, all
decisions that arrangements or terms are satisfactory or not
satisfactory and all other decisions and determinations made by
Lender, shall be made in a commercially reasonable manner,
except as may be otherwise expressly and specifically provided
herein.
(b)
Whenever used, the singular shall include the
plural, the plural shall include the singular, and the words
"Lender" and "Borrower" shall include their respective
successors, assigns, heirs, executors and administrators.
[THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY
BLANK]
IN WITNESS WHEREOF, Borrower has duly executed
this Note as of the day and year first above written.
OXBRIDGE SQUARE LIMITED PARTNERSHIP,
a Virginia limited partnership
By: /s/ James N. Plotkin
Name:
James N. Plotkin
Title:
General Partner
By:
Ronald M. Plotkin Title:
General Partner
By: /s/ James N. Plotkin
Name: James N. Plotkin
Title: Attorney-in-Fact for
Ronald M. Plotkin
STATE/COMMONWEALTH OF VIRGINIA
CITY/COUNTY OF HENRICO, to wit:
I, the undersigned, as Notary Public in and for
the jurisdiction aforesaid, do hereby certify that James N.
Plotkin, whose name as Attorney in Fact for Ronald M. Plotkin,
who is a General Partner of OXBRIDGE SQUARE LIMITED PARTNERSHIP,
a Virginia limited partnership, is signed to the foregoing and
annexed instrument, did personally appear before me this day and
acknowledged the same to be the act and deed of OXBRIDGE SQUARE
LIMITED PARTNERSHIP
GIVEN under my hand and seal this 28
th day of
May 1998.
[SEAL]
/s/_______________________________
NOTARY PUBLIC
My Commission Expires: 6/30/01
STATE/COMMONWEALTH OF VIRGINIA
CITY/COUNTY OF HENRICO, to wit:
I, the undersigned, as Notary Public in and for
the jurisdiction aforesaid, do hereby certify that James N.
Plotkin, whose name as a General Partner of OXBRIDGE SQUARE
LIMITED PARTNERSHIP, a Virginia limited partnership, is signed
to the foregoing and annexed instrument, did personally appear
before me this day and acknowledged the same to be the act and
deed of OXBRIDGE SQUARE LIMITED PARTNERSHIP
GIVEN under my hand and seal this 28
th day of May 1998.
/s/_______________________________
NOTARY PUBLIC
My Commission Expires: 6/30/01
EXHIBIT B-2
BOOK 3293
PAGE 228
OXBRIDGE
SQUARE LIMITED PARTNERSHIP , as Grantor
(Borrower)
and
AETNA
LIFE INSURANCE COMPANY , (Ground Lessor)
to
David
Howard an individual, as trustee
(Trustee)
for the
benefit of
LAUREATE
REALTY SERVICES, INC ., as Grantee
(Lender)
DEED OF
TRUST AND
SECURITY
AGREEMENT
Dated:
June 2, 1998
County:
Chesterfield County, Virginia
UPON
RECORDATION RETURN TO:
Kennedy Covington Lobdell & Hickman, L.L.P.
Nations Bank Corporate Center
100
North Tryon Street, Suite 4200
Charlotte, North Carolina 28202
Attention: Jonathan J. Nugent
BOOK 3293 PAGE 229
TABLE
OF CONTENTS
Page
1. - GRANTS OF SECURITY
1
1.1
PROPERTY GRANTED
1
1.2
ASSIGNMENT OF RENTS
3
1.3
SECURITY AGREEMENT
3
1.4
PLEDGE OF MONIES
3
2. - DEBT AND OBLIGATIONS SECURED
3
2.1 DEBT AND OBLIGATIONS SECURED
3
3. - BORROWER COVENANTS
3
3.1
PAYMENT OF DEBT
3
3.2
INSURANCE
4
3.3
PAYMENT OF TAXES. ETC.
6
3.4
RESERVES
6
3.5
CONDEMNATION
7
3.6
LEASES AND RENTS
7
3.7
MAINTENANCE OF PROPERTY
8
3.8
WASTE
9
3.9
COMPLIANCE WITH LAWS
9
3.10
BOOKS AND RECORDS
9
3.11
PAYMENT FOR LABOR AND
9
3.12
INTENTIONALLY DELETED
9
3.13
PERFORMANCE OF OTHER AGREEMENTS
9
3.14
CHANGE OF NAME. IDENTITY OR STRUCTURE
9
3.15
EXISTENCE
10
3.16
GROUND LEASE
10
4. - SPECIAL COVENANTS
13
4.1
PROPERTY USE
13
4.2
SINGLE PURPOSE ENTITY
14
4.3
RESTORATION
14
4.4
LOCK BOX ACCOUNT
17
5. - REPRESENTATIONS AND WARRANTIES
17
5.1
WARRANTY OF TITLE
17
5.2
AUTHORITY
18
5.3
LEGAL STATUS AND AUTHORITY
18
5.4
VALIDITY OF DOCUMENTS
18
5.5
LITIGATION
18
5.6
STATUS OF PROPERTY
18
5.7
NO FOREIGN PERSON
19
5.8
SEPARATE TAX LOT
19
5.9
ERISA COMPLIANCE
19
5.10
LEASES
19
5.11
FINANCIAL CONDIITON
19
5.12
BUSINE5S PURPOSES
19
5.13
TAXES
19
i
BOOK 3293 PAGE 234
5.14
MAILING ADDRESS
19
5.15
NO CHANGE IN FACTS OR CIRCUMSTANCES
19
5.16
DISCLOSURE
20
5.17
THIRD PARTY REPRESENTATIONS
20
5.18
ILLEGAL ACITIVITY
20
6. - OBLIGATIONS AND RELIANCES
20
6.1
RELATIONSHIP OF BORROWER AND LENDER
20
6.2
NO LENDER OBLIGATIONS
20
7. - FURTHER ASSURANCES
20
7.1
RECORDING OF SECURITY INSTRUMENT, ETC.
24
7.2
FURTHER ACTS. ETC.
20
7.3
CHANGES IN TAX DEBT. CREDIT AND DOCUMENTARY STAMP LAWS
21
7.4
ESTOPPEL CERTIFICATES
21
7.5
REPLACEMENT DOCUMENTS
.21
8. -DUE ON SALE/ENCUMBRANCE
21
8.1
LENDER RELIANCE.
21
8.2
NO SALE/ENCUMBRANCE
22
8.3
SALE/ENCUMBRANCE DEFINED
22
8.4
LENDER'S RIGHTS.
22
9. - DEFAULT
23
9.1
EVENTS OF DEFAULT
23
10. - RIGHTS AND REMEDIES
24
10.1 REMEDIES
24
10.2 APPLICATION OF PROCEEDS
25
10.3 RIGHT TO CURE DEFAULTS
25
10.4 ACTIONS AND PROCEEDINGS
25
10.5 RECOVERY OF SUMS REQUIRED TO BE PAID
25
10.6 EXAMINATION OF BOOKS AND RECORDS
25
10.7 OTHER RIGHTS. ETC.
26
10.8 RIGHT TO RELEASE ANY PORTION OF THE PROPERTY
26
10.9 VIOLATION OF LAWS
26
10.10 RECOURSE AND CHOICE OF REMEDIES
26
10.11 RIGHT OF ENTRY
27
10.12 DEFAULT INTEREST AND LATE CHARGES
27
11. - INDEMNIFICATION
27
11.1 GENERAL INDEMNIFICATION.
27
11.2 MORTGAGE AND/OR INTANGIBLE TAX .
28
11.3 ERISA INDEMNIFICATION
28
11.4 DUTY TO DEFEND; ATTORNEYS' FEES AND OTHER FEES AND
EXPENSES
28
12. - WAIVERS
28
12.1 WAIVER OF COUNTERCLAIM
28
12.2 MARSHALLING AND OTHER MATTERS
28
12.3 WAIVER OF NOTICE
28
12.4 DISCRETION OF LENDER
28
12.5 SURVIVAL
29
12.6 WAIVER OF TRIAL BY JURY
29
ii
BOOK 3293 PAGE 231
13, - EXCULPATION
29
13.1 EXCULPATION
29
13.2 RESERVATION OF CERTAIN RIGHTS
29
13.3 EXCEPTIONS TO EXCULPATION
29
13.4 VOLUNTARY BANKRUPTCY/INSOLVENCY
30
13.5 BANKRUPTCY CLAIMS
30
14. - NOTICES
30
14.1 NOTICES
30
15. - APPLICABLE LAW
31
15.1 CHOICE OF LAW
31
15.2 USURY LAWS
31
15.3 PROVISIONS -SUBJECT TO APPLICABLE LAW
31
16. - SECONDARY MARKET
31
16.1 TRANSFER OF LOAN .
31
17. - COSTS
32
17.1 PERFORMANCE AT BORROWER'S EXPENSE
32
17.2 ATTORNEY'S FEES FOR ENFORCEMENT
32
18. - DEFINITIONS
32
18.1 GENERAL DEFINITIONS
32
19. - MISCELLANEOUS PROVISIONS
32
19.1 NO ORAL CHANGE
32
19.2 LIABILITY
33
19.3 INAPPLICABLE PROVISIONS
33
19.4 HEADINGS ETC.
33
19.5 DUPLICATE ORIGINALS: COUNTERPARTS
33
19.6 NUMBER AND GENDER
33
19.7 SUBROGATION
33
19.8 ENTIRE AGREEMENT
33
20 - STATE SPECIFIC PROVISIONS
33
20.1 ACCELERATION: REMEDIES
33
20.2 STATUTORY PROVISIONS
34
20.3 WAIVER OF TRIAL BY JURY
34
21. - SUBORDINATION OF FEE SIMPLE
34
21.1 SUBORDINATION OF FEE SIMPLE
34
21.2 SUBORDINATION OF GROUND LEASE
35
iii
BOOK 3293 PAGE 232
THIS DEED OF TRUST AND SECURITY AGREEMENT
(the "Security Instrument"} is made as of the 2d day of June,
1998, by OXBRIDGE SQUARE LIMITED PARTNERSHIP , a Virginia
limited partnership, having its principal place of business at
7113 Staples Mill Road, P.O. Box 9462, Richmond, Virginia a
23228, as grantor ("Borrower') to David A. Howard, having an
office at 4701 Cox Road Suite 108 Glen Allen, VA 23060, as
trustee ("Trustee") for the benefit of LAUREATE REALTY
SERVICES, INC ., a South Carolina corporation, having an
address at 227 West Trade Street, Suite 400, Charlotte, North
Carolina 28202, Attn: LeAnn Beam, as grantee ("Lender'),
AETNA LIFE INSURANCE COMPANY (Ground Lessor)
RECITALS:
WHEREAS, Borrower by its promissory note of even
date herewith given to Lender is indebted to Lender in the
principal sum of FOUR MILLION FIVE HUNDRED SEVENTEEN THOUSAND
FIVE HUNDRED and No/100 DOLLARS ($4,517,500.00) in lawful money
of the United States of America (the note together with all
extensions, renewals, modifications, substitutions and
amendments thereof shall collectively be referred to as the
"Note'), with interest from the date thereof at the rates set
forth in the Note, principal and interest to be payable in
accordance with the terms and conditions provided in the Note;
and
WHEREAS, Borrower is the ground lessee under
that certain Lease entered into on the 20th day of October, 1981
by and between Borrower and Aetna Life Insurance Company
("Ground Lessor"), a copy of which is attached hereto as Exhibit
D ("Ground Lease"); and
WHEREAS, pursuant to the terms and provisions of
that certain Ground Lessor Estoppel and Subordination Agreement
executed as of the date hereof, Ground Lessor has consented to
the treatment of this Security Instrument as a "Subsequent First
Mortgage" (as defined in Section 17.2 of the Ground Lease);
and
WHEREAS, Borrower desires to secure the payment
and performance of the Obligations (as defined in Article
2).
1. - GRANTS OF SECURITY
1.1
PROPERTY GRANTED. Borrower, for and in
consideration of the sum of Ten Dollars ($10.00) an other
valuable consideration in hand paid, the receipt of which hereby
is acknowledged, and the further consideration, uses, purposes
and trusts herein set forth and declared, has granted bargained,
transferred, assigned, set-over and consigned and by these
presents does grant, bargain, transfer, assign, set-over and
convey and by these presents does unto Trustee, and unto his or
its successors in the trust hereby created and his or its
assigns, forever, all of the Borrower's right, title and
interest in and to the following (collectively, the "Property"):
(a) the real property described in Exhibit A attached hereto and
made a part hereof (the "Land "); (b) all additional lands,
estates and development rights hereafter acquired by Borrower
for use in connection with the Land and the development of the
Land and all additional lands and estates therein which may,
from time to time, by supplemental mortgage or otherwise be
expressly made subject to the lien of this Security instrument;
the buildings; structures, fixtures, additions, enlargements,
extensions, modifications, repairs, replacements and
improvements now or hereafter erected or located on the Land
(the "Improvements"); (d) all casements, rights-of-way or use,
rights, strips and gores of land, streets, ways, alleys,
passages, sewer rights, water, water courses, water rights and
powers, sir rights and development rights, and all estates,
rights, titles, interests, privileges, liberties, servitudes,
tenements, hereditaments and appurtenances of any nature
whatsoever, in any way now or hereafter belonging, relating or
pertaining to e Land and the Improvements and the reversion and
reversions, remainder and remainders, and all land lying in the
bed of any street, road or avenue, opened or proposed, in front
of or adjoining the Land, to e center line thereof and all the
estates, rights, titles, interests, dower and rights of dower,
curtesy and rights of curtesy, property, possession, claim and
demand whatsoever, both at law and in equity, of Borrower of, in
and to the land and the Improvements and every part and parcel
thereof, with the appurtenances thereto; (e) all furnishings,
machinery, equipment, fixtures (including, but not limited to,
all heating, air conditioning, plumbing, lighting,
communications and elevator fixtures) and other
BOOK 3293 PAGE 233
property of every kind and nature whatsoever owned
by Borrower, or in which Borrower has or shall have an interest,
now or hereafter located upon the Land and the Improvements, or
appurtenant thereto, and usable in connection with the present or
future Coon and occupancy of the Land and the Improvements and all
building equipment, materials and supplies of any nature whatsoever
owned by Borrower, or in which Borrower has or shall have an
interest, now or hereafter located upon the Land and the
Improvements, or appurtenant thereto, or usable in connection with
the present or future operation and occupancy of the Land and the
Improvements (collectively, the "Personal Property'), and the
right, title and interest of Borrower in and to any of the Personal
Property which may be subject to any security interests, as defined
in the Uniform Commercial Code, as adopted and enacted by the state
or states where any of the Property is located (the "Uniform
Commercial Code'), superior in lien to the lien of this Security
Instrument and all proceeds and products of the above; (f) all
leases and other agreements affecting the use, enjoyment or
occupancy of the Land and the Improvements heretofore or hereafter
entered into, whether before or after the filing by or against
Borrower of any petition for relief under 11 U.S.C. § 101 et
seq., as the same may be amended from time to time (the "Bankruptcy
Code') (the "Leases"} and all riot, title and interest of Borrower,
its successors and assigns therein and thereunder, including,
without limitation, cash or securities deposited thereunder to
secure the performance by the lessees of their obligations
thereunder and all rents, additional rents, revenues, issues and
profits (including all oil and gas or other mineral royalties and
bonuses) from the Land and the Improvements whether paid or
accruing before or after the filing by or against Borrower of any
petition for relief under the Bankruptcy Code (the "Rents") and all
proceeds from the sale or other disposition of the Leases and the
riot to receive and apply the Rents to the payment of the Debt; (g)
all awards or payments, including interest thereon, which may
heretofore and hereafter be made with respect to the Property,
whether from the exercise of the right of eminent domain (including
but not limited to any transfer made in lieu of or in anticipation
of the exercise of the right), or for a change of grade, or for any
other injury to or decrease in the value of the Property; (h) all
proceeds of and any unearned premiums on any insurance policies
covering the Property, including, without limitation, the right to
receive and apply the proceeds of any insurance, judgments, or
settlements made in lieu thereof, for damage to the Property; (i)
all refunds, rebates or credits in connection with a reduction in
real estate taxes and assessments charged against the Property as a
result of tax certiorari or any applications or proceedings for
reduction; (j) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing including, without limitation,
proceeds of insurance and condemnation awards, into cash or
liquidation claims; (k) the right, in the name and on behalf of
Borrower, to appear in and defend any action or proceeding brought
with respect to the Property and to commence any action or
proceeding to protect the interest of Lender in the Property; (1)
all agreements, contracts, certificates, instruments, franchises,
permits, licenses, plans, specifications and other documents, now
or hereafter entered into, and all rights therein and thereto,
respecting or pertaining to the use, occupation, construction,
management or operation of the Land and any part thereof and any
Improvements or respecting any business or activity conducted on
the Land and any part thereof and all right, title and interest of
Borrower therein and thereunder, including, without limitation, the
right, upon the happening of any default hereunder, to receive and
collect any sums payable to Borrower thereunder, (m) all
tradenames, trademarks, servicemarks, logos, copyrights, goodwill,
books and records and all other general intangibles relating to or
used in connection with the operation of the Property; and (n) any
and all other rights of Borrower in and to the items set forth in
Subsections (a) through (m) above.
CONDITIONS TO GRANT
TO HAVE AND TO HOLD the Ground Lease and any
renewals therein provided for, and the above granted and
described Property unto Trustee, as trustee for the benefit of
Lender and its successors and assigns for and during the rest,
residue and remainder of the term of years yet to come and
unexpired in the Ground Lease and the renewals therein provided
for subject, nevertheless, to the rents, covenants, conditions
and provisions of the Ground Lease, and Borrower does hereby
bind itself its successors and assigns, to WARRANT AND FOREVER
DEFEND the title to the property, to Lender against every person
whomsoever lawfully claiming or to claim the same or any part
thereof.
IN TRUST WITH THE POWER OF SALE, to secure
payment to Lender of the Debt at the time and in the manner
provided for its payment in the Note and in this Security
Instrument;
2
BOOK 3293 PAGE 234
1.2
ASSIGNMENT OF RENTS. Borrower hereby absolutely
and unconditionally assigns to Lender Borrower's right, title
and interest in and to all current and future Leases and Rents;
it being intended by Borrower that this assignment constitutes a
present, absolute assignment and not an assignment for
additional security only. Nevertheless, subject to the
terms of this Section 1.2 and Section 3.6 Lender grants to
Borrower a revocable license to collect and receive the Rents,
which license shall be automatically revoked upon the occurrence
of an Event of Default (as hereinafter defined) and the
expiration of any applicable grace or cure period. Borrower
shall hold the Rents, or a portion thereof sufficient to
discharge all current sums due on the Debt, for use in the
payment of such sums.
1.3
SECURITY AGREEMENT. This Security
Instrument is both a real property mortgage and a "security
agreement" within the meaning of the Uniform Commercial Code.
The Property includes both real and personal property and
all other rights and interests, whether tangible or intangible
in nature, of Borrower in the Property. By executing and
delivering this Security Instrument, Borrower hereby grants to
Lender, as security for the Obligations (defined in Section 2.1)
a security interest in the Property to the full extent that the
Property may be subject to the Uniform Commercial Code.
1.4
PLEDGE OF MONIES HELD. Borrower hereby pledges
to Lender any and all monies now or hereafter held by Lender,
including, without limitation, any sums deposited in the Escrow
Fund (as defined in Section 3.4), the Deferred Maintenance
Deposit (as defined on Exhibit B attached hereto and made a part
hereof), the Reserve as defined on Exhibit B), Net Proceeds as
defined in Section 4.3), the Lock-Box Account (as defined in
Section 4.4), the Ground Lease Reserve (as defined in Section
3.16) and condemnation awards or payments described in Section
3.5 (collectively, "Deposits'), as additional security for the
Obligations (as hereinafter defined) until expended or applied
as provided in this Security Instrument.
2. - DEBT AND OBLIGATIONS SECURED
2.1
DEBT AND OBLIGATIONS SECURED. This
Security Instrument and the grants, assignments and transfers
made in Article 1 are given for the purpose of securing the
following, in such order of priority as Lender may determine in
its sole discretion (the "Debt"): (a) the payment of the
indebtedness evidenced by the Note in lawful money of the United
States of America; b) the payment of interest, default interest,
late charges, prepayment premiums and other sums, as provided in
the Note, this Security Instrument or the other Loan Documents
(defined below); (c) the payment of all other moneys agreed or
provided to be paid by Borrower in the Note, this Security
Instrument or the other Loan Documents; d) the payment of all
sums advanced pursuant to this Security instrument to protect
and preserve the Property and the lien and the security interest
created hereby; and (e) the performance of each obligation of
Borrower r contained this Security Instrument, the Note and any
other documents or instruments which now or shall hereafter
wholly or partially secure or guarantee payment of the Note or
which have otherwise been executed or are hereafter executed by
Borrower and/or any other person or entity in connection with
the loan (the "Loan') evidenced by the Note (the Note this
Security Instrument and such other documents and instruments
being hereinafter referred to collectively as the "Loan
Documents') and in any renewal, extension, amendment,
modification, consolidation, change of, or substitution or
replacement for, all or any part thereof (collectively the
"Other Obligations"). Borrower's obligations for the payment of
the Debt and the performance of the Other Obligations shall be
referred to collectively below as the "Obligations." All the
covenants, conditions and agreements contained in the Note and
the other Loan Documents are hereby made a part of this Security
Instrument to the same extent and with the same force as if
fully set forth herein.
3. - BORROWER COVENANTS
Borrower covenants and agrees that:
3.1
PAYMENT OF DEBT. Borrower will pay the Debt at
the time and in the manner provided in the Note, this Security
Instrument and the other Loan Documents.
3
BOOK 3293 PAGE 235
3.2
INSURANCE.
(a) Borrower shall obtain and maintain, or cause
to be maintained, insurance for Borrower and the Property
providing at least the following coverages:
(i)
comprehensive all risk insurance on the
Improvements and the Personal Property, including contingent
liability from Operation of Building Laws, Demolition Costs and
Increased Cost of Construction Endorsements, in each case (A) in
an amount equal to not less than the greater of (a) ninety
percent (90%) of the full insurable value thereof, or (b) 100%
of the "Full Replacement Cost," which for purposes of this
Security Instrument shall mean actual replacement value
(exclusive of costs of excavations, foundations, underground
utilities and footings) with a waiver of depreciation; (B)
containing an agreed amount endorsement with respect to the
Improvements and Personal Property waiving all co-insurance
provisions; (C) for a deductible of not greater than $10,000;
and (D) containing an "Ordinance or Law providing Coverage" or
"Enforcement" endorsement if any of the Improvements or the use
of the Property shall at any time constitute legal
non-conforming structures or uses. If any portion of the
improvements is currently or at any time in the future located
in a federally designated "special flood hazard area", Borrower
shall obtain flood hazard insurance in an amount equal to the
lesser of (a) the outstanding principal balance of the Note or
(b) the maximum amount of such insurance available under the
National Flood Insurance Act of 1968, the Flood Disaster
Protection Act of 1973 or the National Flood Insurance Reform
Act of 1994, as each may be amended or such greater amount as
Lender shall require. In addition, in the event the Property is
located in an area with a high degree of seismic activity,
Borrower shall obtain earthquake insurance in amounts and in
form and substance satisfactory to Lender;
(ii)
commercial general liability insurance against
claims for personal injury, bodily injury, death or property
damage occurring upon, in or about the Property, such insurance
(A) to be on the so-called "occurrence" form with a combined
single limit (including "umbrella" coverage in place) of not
less than $3,000,000 or, if any of the Improvements contain
elevators, $5,000,000; (B) to continue at not less than the
aforesaid limit until required to be changed by Lender in
writing by reason of changed economic conditions making such
protection inadequate; and (C) to cover at least the following
hazards: (1) premises and operations; (2) products and completed
operations on an "if any" basis; (3) independent contractors;
and (4) blanket contractual liability for all written and oral
contracts, to the extent the same is available;
(iii)
business income insurance (A) with loss payable
to Lender; (B) covering all risks required to be covered by the
insurance provided for in Subsection 3.2(a)(i); and (C) in an
amount equal to 100% of the projected gross income from the
Property for a period of twelve (12) months. The amount of such
business income insurance shall be determined prior to the date
hereof and at least once each year thereafter based on
Borrower's reasonable estimate of the gross income from the
Property for the succeeding twelve (12) month period. All
insurance proceeds payable to Lender pursuant to this Subsection
shall be held by Lender and shall be applied to the obligations
secured hereunder from time to time due and payable hereunder
and under the Note; provided, however, that nothing herein
contained shall be deemed to relieve Borrower of its obligations
to pay the obligations secured hereunder on the respective dates
of payment provided for in the Note except to the extent such
amounts are actually paid out of the proceeds of such business
income insurance;
(iv)
at all times during which structural
construction, repairs or alterations are being made with respect
to the Improvements (A) owner's contingent or protective
liability insurance covering claims not covered by or under the
terms or provisions of the above mentioned commercial general
liability insurance policy; and (B) the insurance provided for
in Subsection 3.2(a)(i) written in a so-called builder's risk
completed value form on a non-reporting basis;
(v)
if applicable, workers' compensation, subject to
the statutory limits of the state in which the Property is
located, and employer's liability insurance with a limit of at
least $1,000,000 per accident and per disease per employee, and
$1,000,000 aggregate coverage for
4
BOOK 3293 PAGE 236
disease in respect of any work or operations on or
about the Property, or in connection with the Property or its
operation;
(vi)
if applicable, comprehensive boiler and
machinery insurance, if applicable, in amounts as shall be
reasonably required by Lender;
(vii)
if applicable, motor vehicle liability coverage
for all owned and non-owned vehicles, including rented and
leased vehicles containing minimum limits reasonably acceptable
to Lender, and
(viii)
for Public Warehousing Properties Only:
environmental insurance in amounts as shall be reasonably
required by Lender;
(ix)
such other insurance and in such amounts as
Lender from time to time may reasonably request against such
other insurable hazards which at the time are commonly insured
against for property similar to the Property located in or
around the region in which the Property is located.
(b)
All insurance provided for in Subsection 3.2(a)
hereof shall be obtained under valid and enforceable policies
(the "Policies" or in the singular, the "Policy"), and shall be
subject to the approval of Lender as to insurance companies,
amounts, forms, deductibles, loss payees and insureds. The
insurance companies must have a rating of "A" or better for
claims paying ability assigned by Moody's Investors Service,
Inc. and Standard & Poor' s Rating Group or a general policy
rating of A or better and a financial class of VIII or better
assigned by A.M. Best Company, Inc. Each such insurer shall be
referred to herein as a "Qualified Insurer". Not less than (30)
days prior to the expiration dates of the Policies theretofore
furnished to Lender pursuant to Subsection 3.2, certified copies
of the Policies marked "premium paid" or accompanied by evidence
satisfactory to Lender of payment of the premiums due thereunder
(the "Insurance Premiums'), shall be delivered by Borrower to
Lender, provided, however, that in the case of renewal Policies,
Borrower may furnish Lender with binders therefor to be followed
by the original Policies when issued.
(c)
Borrower shall not obtain (i) any umbrella or
blanket liability or casualty Policy unless, in each case, such
Policy is approved in advance in writing by Lender and Lender's
interest is included therein as provided in this Security
Instrument and such Policy is issued by a Qualified Insurer, or
(ii) separate insurance concurrent in form or contributing in
the event of loss with that required in Subsection 3.2(a) to be
furnished by, or which may be reasonably required to be
furnished by, Borrower. In the event Borrower obtains separate
insurance or an umbrella or a blanket Policy, Borrower shall
notify Lender of the same and shall cause certified copies of
each Policy to be delivered as required in Subsection 3.2(b).
Any blanket insurance Policy shall specifically allocate to the
Property the amount of coverage from time to time required
hereunder and shall otherwise pro vide the same protection as
would a separate Policy insuring only the Property in compliance
with the provisions of Subsection 3.2(a).
(d)
All Policies of insurance provided for or
contemplated by Subsection 3.2(a), except for the Policy
referenced in Subsection 3.2(a)(v), shall name Lender and
Borrower as the insured or additional insured, as their
respective interests may appear, and in the case of property
damage, boiler and machinery, flood and earthquake insurance,
shall contain a so-called New York standard non-contributing
mortgagee clause in favor of Lender providing that the loss
thereunder shall be payable to Lender.
(e)
Borrower shall furnish to Lender, on or before
thirty (30) days after the close of each of Borrower's fiscal
years, a statement certified by. Borrower or a duly authorized
officer of Borrower of the amounts of insurance maintained in
compliance herewith, of the risks covered by such insurance and
of the insurance company or companies which carry such insurance
and, if requested by Lender, verification of the adequacy of
such insurance by an independent insurance broker or appraiser
acceptable to Lender.
(f)
If at any time Lender is not in receipt of
written evidence that all insurance required hereunder is in
full force and effect, Lender shall have the right, without
notice to Borrower to
5
BOOK 3293 PAGE 237
take such action as Lender deems necessary to
protect its interest in the Property, including, without
limitation, the obtaining of such insurance coverage as Lender in
its sole discretion deems appropriate, and all expenses incurred by
Lender in connection with such action or in obtaining such
insurance and keeping it in effect shall be paid by Borrower to
Lender upon demand and until paid shall be secured by this Security
Instrument and shall bear interest in accordance with Section 10.3
hereof.
(g)
If the Property shall be damaged or destroyed,
in whole or in part, by fire or other casualty, Borrower shall
give prompt notice of such damage to Lender and shall promptly
commence and diligently prosecute the completion of the repair
and restoration of the Property as nearly as possible to the
condition the Property was in immediately prior to such fire or
other casualty, with such alterations as may be approved by
Lender (the "Restoration') and otherwise in accordance with
Section 4.3 of this Security Instrument, except in instances
where Lender has failed or elected not to disburse Net Proceeds
to Borrower under such Section 4.3 (provided that such exception
shall not apply if the failure to disburse is attributable to
Borrower's failure to comply with the conditions set forth in
Clauses (A), (D) or (I) of Subsection 4.3(b)(i) or in Subsection
4.3(b)(ii) or any other conditions set forth in Section 4.3
which Borrower has the practical ability to satisfy). Lender
may, but shall not be obligated to make proof of loss if not
made promptly by Borrower.
(h)
In the event of foreclosure of this Security
Instrument, or other transfer of title to the Property in
extinguishment in whole or in part of the Debt all right title
and interest of Borrower in and to such policies then in force
concerning the Property and all proceeds payable thereunder
shall thereupon vest in the purchaser at such foreclosure or
Lender or other transferee in the event of such other transfer
of title.
3.3
PAYMENT OF TAXES. ETC.
Borrower shall promptly pay. all taxes,
assessments, water rates, sewer rents, governmental impositions,
and other charges, including without limitation vault charges
and license fees for the use of vaults, chutes and similar areas
adjoining the Land, now or hereafter levied or assessed or
imposed against the Property or any part thereof {the "Taxes'),
all ground rents, maintenance charges and similar charges, now
or hereafter levied or assessed or imposed against the Property
or any part thereof (the "Other Charges'), and all charges for
utility services provided to the Property prior to the time same
become delinquent. Borrower will deliver to Lender, promptly
upon Lender's request, evidence satisfactory to Lender that the
Taxes, Other Charges and utility service charges have been so
paid or are not then delinquent. Borrower shall not suffer and
shall promptly cause to be paid and discharged any lien or
charge whatsoever which may be or become a lien or charge
against the Property. Except to the extent sums sufficient to
pay all Taxes and Other Charges have been deposited -with Lender
in accordance with the terms of this Security Instrument,
Borrower shall furnish to Lender paid receipts for the payment
of the Taxes and Other Charges prior to the date the same shall
become delinquent.
3.4
RESERVES. (a) Borrower shall pay to Lender on
the first day of each calendar month (a) one-twelfth of an
amount which would be sufficient to pay the Taxes payable, or
estimated by Lender to be payable, during the next ensuing
twelve (12) months and (b) one-twelfth of an amount which would
be sufficient to pay the Insurance Premiums due for the renewal
of the coverage afforded by the Policies upon the expiration
thereof (the amounts in {a} and (b) above shall be called the
"Escrow Fund"). Borrower agrees to notify Lender immediately of
any changes to the amounts, schedules and instructions for
payment of any Taxes and Insurance Premiums of which it has
obtained knowledge and authorizes Lender or its agent to obtain
the bills for Taxes and Other Charges directly from the
appropriate taxing authority. The Escrow Fund and the payments
of interest or principal or both, payable pursuant to the Note
shall be added together and shall be paid as an aggregate sum by
Borrower to Lender. Lender will apply the Escrow Fund to
payments of Taxes and Insurance Premiums required to be made by
Borrower pursuant to Sections 3.2 and 3.3 hereof. If the amount
of the Escrow Fund shall exceed the amounts due for Taxes and
Insurance Premiums pursuant to Sections 3.2 and 3.3 hereof,
Lender shall, in its discretion, return any excess to Borrower
or credit such excess against future payments to be made to the
Escrow Fund. In allocating such excess, Lender may deal with the
person shown on the records of Lender to be the owner of the
Property. If the Escrow Fund is not sufficient to pay the items
set forth in (a)
and (b) above, Borrower shall promptly pay to
Lender, upon demand, an amount which Lender shall estimate as
sufficient to make up the deficiency. The Escrow Fund shall
not
6
BOOK 3293 PAGE 238
constitute a trust fund and may be commingled with
other monies held by Lender. No earnings or interest on the Escrow
Fund shall be payable to Borrower.
(b)
Borrower shall comply with the Replacement and
Leasing Reserve Requirements set forth on Exhibit "B" attached
hereto and made a part hereof.
3.5
CONDEMNATION. Borrower shall promptly give
Lender notice of the actual or threatened commencement of any
condemnation or eminent domain proceeding and shall deliver to
Lender copies of any and all papers served in connection with
such proceedings. Lender may participate in any such
proceedings, and Borrower shall from time to time deliver to
Lender all instruments requested by it to permit such
participation. Borrower shall, at its expense, diligently
prosecute any such proceedings, and shall consult with Lender,
its attorneys and experts, and cooperate with them in the
carrying on or defense of any such proceedings. Notwithstanding
any taking by any public or quasi-public authority through
eminent domain or otherwise (including but not limited to any
transfer made in lieu of or in anticipation of the exercise of
such taking), Borrower shall continue to pay the Debt at the
time and in the manner provided for its payment in the Note and
in this Security Instrument and the Debt shall not be reduced
until any award or payment therefor shall have been actually
received and lied by Lender, after the deduction of expenses of
collection, to the reduction or discharge of the Debt. Lender
shall not be limited to the interest paid on the award by the
condemning authority but shall be entitled to receive out of the
award interest at the rate or rates provided herein or in the
Note. If the If the property or any portion thereof is takenby a
condemning authority, Borrower shall promptly commence and
diligently prosecute the Restoration of the Property and
otherwise comply with the provisions of Section 4.3 of this
Security Instrument, except in instances where Lender has failed
or elected not to disburse Net Proceeds to Borrower under such
Section 4.3 (provided that such exception shall not apply if the
failure to disburse is attributable to Borrower's failure to
comply with the conditions set forth in Clauses (A), ()) or (I}
of Subsection 4.3(b)(i) or in Subsection 4.3(b)(ii) or any other
conditions set forth in Section 4.3 which Borrower has the
practical ability to satisfy). If the Property is sold, through
foreclosure or otherwise, prior to the receipt by Lender of the
award or payment, Lender shall have the right, whether or not a
deficiency judgment on the Note shall have been sought,
recovered or denied, to receive the award or payment, or a
portion thereof sufficient to pay the Debt.
In the event that this Section 3.5 or the
performance by Borrower of any obligation imposed by this
Section 3.5, or by Section 4.3 shall conflict or interfere with,
or burden Borrower's obligations pursuant to the Ground Lease,
or Ground Lessor's exercise of any rights thereunder with
respect to condemnation matters, Borrower's obligations and
Lender's riots under the Loan Documents shall be controlled by
the provisions of the Ground Lease and the provisions hereof
deemed modified so as to eliminate any conflict.
3.6
LEASES AND RENTS. (a) Except as otherwise
consented to by Lender, all Leases shall be written on the
standard form of lease which shall have been approved by Lender.
Upon request, Borrower shall furnish Lender with executed copies
of all. Leases. No material changes may he made to the
Lender-approved standard lease without the prior written consent
of Lender, which approval shall not be unreasonably withheld or
delayed. In addition, all renewals of Leases and all proposed
leases shall be arms-length transactions with bona fide,
independent third party tenants. All proposed leases and
renewals of existing Leases, other than Minor Leases
(hereinafter defined), shall be subject to the prior approval of
Lender and its counsel, at Borrower's expense, which approval
shall not be unreasonably withheld or delayed if the proposed
Lease or renewal Lease i1 is on the Lender-approved form,
subject only to commercially reasonable variations therefrom,
and (ii) is negotiated in an arms-length transaction with an
independent third party tenant. All Leases entered into after
the date hereof shall provide that they are subordinate to this
Security Instrument and that the lessee agrees to attom to
Lender. Borrower (i) shall observe and perform all the
obligations imposed upon the lessor under the Leases and shall
not do
or permit to be done anything to impair the
value of the Leases as security for the Debt; (ii) shall, for
Leases other than Minor Leases, promptly send copies to Lender
of all notices of default which Borrower shall send or receive
thereunder, (iii) shall enforce all of the terms, covenants and
conditions contained in the Leases upon the part of the lessee
thereunder to be observed or performed short of termination
thereof; Borrower may terminate, however, Minor Leases as the
result of a default by lessee thereunder, (iv) shall not collect
any of the Rents more than one (1) month in advance; (v) shall
not execute any other assignment of the lessor's interest in the
Leases or the Rents;
7
BOOK 3293 PAGE 239
(vi) shall not alter, modify or change the terms of
the Leases without the prior written consent of Lender, or cancel
or terminate the Leases or accept a surrender thereof or convey or
transfer or suffer or permit a conveyance or transfer of the Land
or of any interest therein so as to effect a merger of the estates
and rights of, or a termination or diminution of the obligations
of, lessees thereunder; (vii) shall not alter, modify or change the
terms of any guaranty, letter of credit or other credit support
with respect to the Leases (the “Lease Guaranty”) or
cancel or terminate such Lease Guaranty without the prior written
consent of Lender, and (viii) shall not consent to any assignment
of or subletting under the Leases not in accordance with their
terms, without the prior written consent of Lender.
(b)
Notwithstanding the provisions of Subsection
3.6(a) above, renewals of existing commercial Leases and
proposed leases for commercial space covering less than ten
percent (10%) of the total rentable space for the Property
("Minor Leases') shall not be subject to the prior approval of
Lender provided that (i) the renewal Lease or proposed lease
shall have a lease term not to exceed ten (10) years including
options to renew, (ii) the renewal Lease or proposed lease shall
be an arms-length transaction with a bona fide, independent
third party tenant. Borrower shall deliver to Lender copies of
all Leases which are entered into pursuant to the preceding
sentence together with Borrower's certification that it has
satisfied all of the conditions of the preceding sentence within
thirty (30) days after the execution of the Lease.
Notwithstanding anything contained herein to the contrary, if
Lender fails within ten (10) business days after receipt of a
request for approval or consent pursuant to this Section 3.6 to
respond to Borrower's request, the requested response shall be
deemed to have been given and all requirements of this Section
3.6 shall be deemed to have been complied with in full.
Notwithstanding the foregoing, the deemed acceptance by Lender
of Borrower's request for approval or consent shall only apply
when the request of Borrower specifically references the
applicable time limit for response by Lender.
(c) Notwithstanding any other provision of this
Section 3.6 to the contrary, Borrower shall not be required to
obtain Lender's consent to offer commercially reasonable
incentives or concessions in connection with any proposed lease
or renewal as Borrower shall deem appropriate or necessary to
obtain a desirable tenant mix, retain a desirable tenant or to
compete for a desirable tenant.
(d)
All security deposits of tenants, whether held
in cash or any other form, shall not be commingled with any
other funds of Borrower and, if cash, shall be deposited by
Borrower at such commercial or savings bank or banks as may be
reasonably satisfactory to Lender. Borrower shall, upon request,
provide Lender with evidence reasonably satisfactory to Lender
of Borrower's compliance with the foregoing. Following the
occurrence and during the continuance of any Event of Default
which has not been cured within any applicable grace period,
Borrower shall, upon Lender's request if permitted by any
applicable legal requirements, turn over to Lender the security
deposits and any interest theretofore earned thereon) with
respect to all or any portion of the Property, to be held by
Lender subject to the terms of the Leases.
3.7
MAINTENANCE OF PROPERTY. Borrower shall cause
the Property to be maintained in a good and safe condition and
repair. The Improvements and the Personal Property shall
not be removed, demolished or materially altered (except for
normal replacement of the Personal Property and tenant
improvements made in connection with a Lease which has been
entered into by Borrower in accordance with the terms hereof)
without the consent of Lender. Subject to the provisions of
Subsection 3.2(g) and Section 3.5, Borrower shall promptly
repair, replace or rebuild any part of the Property which may be
destroyed by any casualty, or become damaged, worn or
dilapidated or which may be affected by
any proceeding of the character referred to in
Section 3.5 hereof and shall complete and pay for any structure
at any time in the process of construction or repair on the
Land. Borrower not initiate, join in, acquiesce in, or consent
to any change in any private restrictive covenant, zoning law or
other public or private restriction, limiting or defining the
uses which may be made of the Property or any part thereof. If
under applicable zoning provisions the use of all or any portion
of the Property is or shall become a nonconforming use, Borrower
will not cause or permit the nonconforming use to be
discontinued or abandoned without the express written consent of
Lender. For the purposes of this Section 3.7 the term
"materially altered" shall mean such alteration of the Property
as to significantly change the current structural arrangement of
the Improvements or such alteration as to significantly alter
the facade of the Improvements on the Property. If Borrower
makes a request of Lender for consent or approval to a material
alteration, Lender shall, upon receipt of final alteration
8
BOOK 3293 PAGE 240
plans and a budget for said alteration, have thirty
(30) days to respond to Borrower. Lender fails to
respond to Borrower within thirty (30) days, the consent and
approval of Lender shall be deemed to have been provided.
Notwithstanding the foregoing, the thirty (30) day response time
limit shall only apply if the request of Borrower specifically
references the applicable time limit.
3.8
WASTE. Borrower shall not commit or suffer any
waste of the Property or make any change in the use of the
Property which will in any way materially increase the risk of
fire or other hazard arising out of the operation of the
Property, or take any action that might invalidate or give cause
for cancellation of any Policy, or do or permit to be done
thereon anything that may in any way materially impair the value
of the Property or the security of this Security Instrument.
3.9
COMPLIANCE WITH LAWS. Borrower shall (i)
promptly comply with all existing and future federal, state an
local laws, orders, ordinances, governmental rules and
regulations or court orders affecting the Property, or the use
thereof including, but not limited to, the Americans with
Disabilities Act (`ADA") (collectively, the "Applicable Laws"},
(ii) from time to time, upon Lender's request, provide Lender
with evidence satisfactory to Lender that the Property complies
with all Applicable Laws or is exempt from compliance with
Applicable Laws, (iii) .give prompt notice to Lender of the
receipt by Borrower of any notice related to a violation of any
Applicable Laws and of the commencement of any proceedings or
investigations which relate to compliance with Applicable Laws,
and (iv) take appropriate measures to prevent and will not
engage in or knowingly permit any illegal activities at the
Property.
3.10
BOOKS AND RECORDS (a) Borrower shall keep
adequate books and records of account in accordance with methods
of accounting reasonably acceptable to Lender and furnish to
Lender:
(i)
quarterly operating statements of the Property,
prepared and certified by Borrower in the form attached to the
Ground Lease as Schedule C and Schedule F;
(ii).
certified rent rolls for the last month of each
fiscal quarter signed and dated by Borrower in the form attached
to the Ground Lease as Schedule D, detailing the names of all
tenants of the Improvements, the portion of Improvements
occupied by each tenant, the base rent and any other charges
payable under each Lease and the term of each Lease, including
the expiration date, and any other information as is reasonably
required by Lender, within thirty (30) days after the end of
each fiscal quarter,
(iii)
an annual financial statement of the Property to
be prepared by Borrower in the form required pursuant to Section
3.1 of the Ground Lease, within ninety (90) days after the close
of each fiscal year of Borrower and if available, an operating
statements prepared by an independent certified public
accountant within thirty (30) days of the date the same are made
available to Borrower;
3.11
PAYMENT FOR LABOR AND MATERIALS. Borrower will
promptly pay when due all bills an costs for labor, materials,
and specifically a fabricated materials incurred in connection
with the Property and never permit to be created or exist in
respect of the Property or any part thereof any other or
additional lien or security interest other than the liens or
security interests hereof, except for the Permitted Exceptions
(defined below).
3.12
INTENTIONALLY DELETED.
3.13
PERFORMANCE OF OTHER AGREEMENTS. Borrower shall
observe and perform each and every term to be observed or
performed by Borrower pursuant to the terms of any agreement or
recorded instrument affecting or pertaining to the Property, or
given by Borrower to Lender for the purpose of farther securing
an obligation secured hereby and any amendments, modifications
or changes thereto.
3.14
CHANGE OF NAME, IDENTITY OR STRUCTURE. Borrower
will not change Borrower's name, identity (including its trade
name or names) or if not an individual, Borrower’s
9
BOOK 3293 PAGE 241
partnership structure without notifying Lender of
such change in writing at least thirty (30) days prior to the
effective date of such change and, in the ease of a change in
Borrower's structure without first obtaining the prior written
consent of Lender. Borrower will execute and deliver to Lender,
prior to or contemporaneously with the effective date of any such
change, any financing statement or financing statement change
required by Lender to establish or maintain the validity,
perfection and priority of the security interest granted herein. At
the request of Lender, Borrower shall execute a certificate in form
satisfactory to Lender listing the trade names under which Borrower
intends to operate the Property, and representing and warranting
that Borrower does business under no other trade name with respect
to the Property.
3.15
EXISTENCE Borrower will continuously maintain
its existence and its rights to do business in the state where
the Property is located together with its franchises and trade
names.
3.1
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