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
