Exhibit 10.2
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RECORDATION REQUESTED
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This Instrument was prepared by (with the
assistance of local Virginia counsel):
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BY AND WHEN RECORDED
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MAIL TO:
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Martin
E. Steere, Esq.
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Manatt,
Phelps & Phillips, LLP
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First Credit Bank
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11355
W. Olympic Boulevard
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9255 Sunset Boulevard
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Los
Angeles, California 90064
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Los Angeles, California 90069
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Tax
Map Reference No.:
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Attention: Loan Administration
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THIS IS A CREDIT LINE DEED OF
TRUST WITHIN THE MEANING OF SECTION 55-58.2 OF THE CODE OF VIRGINIA
(1950), AS AMENDED. FOR THE PURPOSES OF AND TO THE EXTENT REQUIRED
BY SUCH SECTION, (i) THE NAME OF THE NOTEHOLDER SECURED BY
THIS CREDIT LINE DEED OF TRUST IS FIRST CREDIT BANK, A CALIFORNIA
BANKING CORPORATION, (ii) THE ADDRESS AT WHICH COMMUNICATIONS
MAY BE MAILED OR DELIVERED TO SUCH NOTEHOLDER IS 9255 SUNSET
BOULEVARD, LOS ANGELES, CALIFORNIA 90069, AND (iii) THE
MAXIMUM AGGREGATE AMOUNT OF PRINCIPAL TO BE SECURED AT ANY ONE TIME
IS TWENTY-FIVE MILLION AND NO/100 DOLLARS
($25,000,000.00).
CREDIT LINE CONSTRUCTION DEED OF
TRUST,
SECURITY AGREEMENT AND FIXTURE
FILING
(WITH ASSIGNMENT OF RENTS AND
LEASES)
THIS CREDIT LINE CONSTRUCTION
DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING (WITH
ASSIGNMENT OF RENTS AND LEASES) (this “Deed of Trust”) is dated
February 4, 2009 and is effective as of February 6, 2009,
among FOX PROPERTIES LLC, a Delaware limited liability company
(referred to below sometimes as “Borrower” and
sometimes as “Trustor”) (Grantor for Indexing
Purposes), whose address is c/o DuPont Fabros Technology, Inc.,
1212 New York Avenue, NW, Suite 900, Washington D.C., 20005, Donald
Goldrosen, an individual, and D. Wyatt Bethel, an individual,
either of whom may act hereunder (referred to below as
“Trustee”), both of whom are residents of Fairfax
County, Virginia, whose address is 9302 Lee Highway,
Suite 1100, Fairfax, VA 22031-1214, and FIRST CREDIT BANK, a
California banking corporation (referred to below sometimes as
“Lender” and sometimes as “Beneficiary”)
(Grantee for Indexing Purposes), whose address is 9255 Sunset
Boulevard, Los Angeles, CA 90069.
CONVEYANCE AND GRANT.
For valuable consideration, Trustor
irrevocably grants, transfers and assigns to Trustee in trust, with
power of sale, for the benefit of Lender as Beneficiary, with
General Warranty and English Covenants of Title, all of
Trustor’s right, title, and interest in and to the following
described real property, together with all existing or subsequently
erected or affixed buildings, improvements and fixtures; all
easements, rights-of-way, and appurtenances; all water, water
rights and ditch rights (including stock in utilities with ditch or
irrigation rights); and all other rights, royalties, and profits
relating to the real property, including without limitation all
minerals, oil, gas, geothermal and similar matters, located in
Loudoun County, Virginia (the “Real
Property”):
See Exhibit A attached hereto
and incorporated herein by reference.
DEED OF TRUST
(Continued)
Trustor presently assigns to Lender (also known
as Beneficiary in this Deed of Trust) all of Trustor’s right,
title, and interest in and to all present and future leases of the
Property and all Rents from the Property. This is an absolute
assignment of Rents made in connection with an obligation secured
by real property.
Trustor presently assigns to Lender
all present and future right, title and interest of Trustor in and
to all accounts, general intangibles, chattel paper, deposit
accounts, money, instruments and documents (as those terms are
defined in the Uniform Commercial Code (“UCC”)) and all
other agreements, obligations, rights and written materials (in
each case whether existing now or in the future) now or in the
future relating to or otherwise arising in connection with or
derived from the Property or any other part of the Property or the
ownership, use, development, construction, maintenance, management,
operation, marketing, leasing, occupancy, sale or financing of the
Property or any other part of the Property, including (to the
extent applicable to the Property or any other portion of the
Property) (i) permits, approvals and other governmental
authorizations, (ii) improvement plans and specifications and
architectural drawings, (iii) agreements with contractors,
subcontractors, suppliers, project managers, supervisors,
designers, architects, engineers, sales agents, leasing agents,
consultants and property managers, (iv) takeout, refinancing
and permanent loan commitments, (v) warranties, guaranties,
indemnities and insurance policies (including insurance policies
obtained in accordance with the Construction Loan Agreement of even
date herewith by and between Trustor and Beneficiary
(“Construction Loan Agreement”) and whether or not
required to be carried by Trustor pursuant to the terms hereof),
together with insurance payments and unearned insurance premiums,
(vi) claims, demands, awards, settlements and other payments
arising or resulting from or otherwise relating to any insurance
(whether or not Beneficiary is named as a loss payee of such
insurance) or any loss or destruction of, injury or damage to,
trespass on or taking, condemnation (or conveyance in lieu of
condemnation) or public use of any of the Property, (vii) the
undisbursed funds in the Construction Loan Account (as defined in
the Construction Loan Agreement) and all of the Trustor’s
funds now or hereafter held on deposit in the Construction Loan
Account, (viii) license agreements, service and maintenance
agreements, purchase and sale agreements and purchase options,
together with advance payments, security deposits and other amounts
paid to or deposited with Trustor under any such agreements,
(ix) reserves, deposits, bonds, deferred payments, refunds,
rebates, discounts, cost savings, escrow proceeds, sale proceeds
and other rights to the payment of money, trade names, trademarks,
goodwill and all other types of intangible personal property of any
kind or nature, and (x) all supplements, modifications,
amendments, renewals, extensions, proceeds, replacements and
substitutions of or to any of such property.
In addition, Trustor grants Lender a
UCC security interest in the Rents and the Personal Property
defined below. Trustor covenants and agrees that upon recordation
in the land records of the County of Loudoun, Commonwealth of
Virginia, this Deed of Trust shall constitute a “construction
mortgage” under Section 9334(h) of the UCC and under
Section 8.9A-334(h) of the Code of Virginia (1950), as
amended, and shall also constitute a financing statement filed as a
fixture filing under Sections 9334 and 9502(c) of the UCC and under
Section 8.9A-502(c) of the Code of Virginia (1950), as
amended.
THIS DEED OF TRUST, INCLUDING THE
ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND
PERSONAL PROPERTY, IS GIVEN TO SECURE (1) PAYMENT OF THE
INDEBTEDNESS AND (2) DUE, PROMPT AND COMPLETE OBSERVANCE,
PERFORMANCE AND DISCHARGE OF EACH AND EVERY CONDITION, OBLIGATION,
COVENANT AND AGREEMENT CONTAINED IN THIS DEED OF TRUST, OR IN SAID
NOTE, OR IN THE CONSTRUCTION LOAN AGREEMENT OR IN THE LOAN
DOCUMENTS (AS DEFINED IN THE CONSTRUCTION LOAN AGREEMENT), THE
RELATED DOCUMENTS AND ALL MODIFICATIONS, RENEWALS OR EXTENSIONS OF
ANY OF THE FOREGOING, AND THIS DEED OF TRUST IS GIVEN AND ACCEPTED
ON THE FOLLOWING TERMS:
TRUSTOR’S REPRESENTATIONS
AND WARRANTIES. Trustor
warrants that Trustor has the full power, right, and authority to
enter into this Deed of Trust and to hypothecate the Property and
the provisions of this Deed of Trust do not conflict with, or
result in a default under any agreement or other instrument binding
upon Trustor and do not result in a violation of any law,
regulation, court decree or order applicable to Trustor.
Page 2 of 23
DEED OF TRUST
(Continued)
PAYMENT AND PERFORMANCE. Except as otherwise provided in this Deed of
Trust, Trustor shall pay to Lender all Indebtedness secured by this
Deed of Trust as it becomes due, and Trustor shall strictly perform
all of its obligations under the Note, this Deed of Trust, and the
Related Documents.
POSSESSION AND MAINTENANCE OF THE
PROPERTY. Trustor agrees
that Trustor’s possession and use of the Property shall be
governed by the following provisions:
Possession and Use.
Until the occurrence of an Event of
Default, Trustor may (a) remain in possession and control of
the Property, (b) use, operate or manage the Property, and
(c) collect any Rents from the Property.
Duty to Maintain.
After substantial completion of the
improvements being constructed on the Property, Trustor shall
maintain the Property in tenantable condition and promptly perform
all repairs, replacements, and maintenance necessary to preserve
its value.
Hazardous Substances.
The terms “hazardous
waste,” “hazardous substance,”
“disposal,” “release,” and
“threatened release,” as used in this Deed of Trust,
shall have the same meanings as set forth in the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601, et seq.
(“CERCLA’), the Superfund Amendments and
Reauthorization Act of 1986, Pub. L. No. 99-499
(“SARA”), the Hazardous Materials Transportation Act,
49 U.S.C. Section 1801, et seq., the Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901, et seq., or other
applicable state, Federal or local laws, rules, or regulations
adopted pursuant to any of the foregoing. The terms
“hazardous waste” and “hazardous substance”
shall also include, without limitation, petroleum and petroleum
by-products or any fraction thereof and asbestos. Trustor
represents and warrants to Lender that: (a) During the period
of Trustor’s ownership of the Property, to the best of
Trustor’s knowledge, there has been no use, generation,
manufacture, storage, treatment, disposal, release or threatened
release of any hazardous waste or substance by any person of,
under, about or from the Property in violation of environmental
law; (b) Trustor has no knowledge of, or reason to believe
that there has been, except as previously disclosed to and
acknowledged by Lender in writing, (i) any use, generation,
manufacture, storage, treatment, disposal, release, or threatened
release of any hazardous waste or substance on, under, about or
from the Property by any prior owners or occupants of the Property
in violation of environmental law or (ii) any actual or
threatened litigation or claims of any kind by any person relating
to such matters; and (c) except as previously disclosed to and
acknowledged by Lender in writing, neither Trustor nor any tenant,
contractor, agent or other authorized user of the Property shall
use, generate, manufacture, store, treat, dispose of, or release
any hazardous waste or substance on, under, about or from the
Property except in compliance with all applicable federal, state,
and local laws, regulations and ordinances, including without
limitation those laws, regulations, and ordinances described above.
If Lender has a reasonable basis to believe that Trustor has
breached the provisions of this Section, Trustor authorizes Lender
and its agents to enter
Page 3 of 23
DEED OF TRUST
(Continued)
upon the Property to make such
inspections and tests, at Trustor’s expense, as Lender may
deem appropriate to determine compliance of the Property with this
section of the Deed of Trust. Any inspections or tests made by
Lender shall be for Lender’s purposes only and shall not be
construed to create any responsibility or liability on the part of
Lender to Trustor or to any other person. The representations and
warranties contained herein are based on Trustor’s due
diligence in investigating the Property for hazardous waste and
hazardous substances. Trustor hereby (a) releases and waives
any future claims against Lender for indemnity or contribution in
the event Trustor becomes liable for cleanup or other costs under
any such laws, and (b) agrees to indemnify and hold harmless
Lender against any and all claims, losses, liabilities, damage,
penalties, and expenses which Lender may directly or indirectly
sustain or suffer resulting from a breach of this section of the
Deed of Trust or as a consequence of any use, generation,
manufacture, storage, disposal, release or threatened release
occurring prior to Trustor’s ownership or interest in the
Property, whether or not the same was or should have been known to
Trustor. The provisions of this section of the Deed of Trust,
including the obligation to indemnify, shall survive the payment of
the Indebtedness and the satisfaction and reconveyance of the lien
of this Deed of Trust and shall not be affected by Lender’s
acquisition of any interest in the Property, whether by foreclosure
or otherwise.
Nuisance, Waste.
Trustor shall not cause, conduct or
permit any nuisance nor commit, permit, or suffer any stripping of
or waste on or to the Property or any portion of the Property.
Without limiting the generality of the foregoing, Trustor will not
remove, or grant to any other party the right to remove, any
timber, minerals (including oil and gas), soil, gravel or rock
products without the prior written consent of Lender, except as
necessary to complete the construction of the improvements on the
Property.
Removal of
Improvements. Except as
necessary to complete the construction of the improvements on the
Property, Trustor shall not demolish or remove any Improvements
from the Real Property without the prior written consent of Lender.
As a condition to the removal of any Improvements, Lender may
require Trustor to make arrangements satisfactory to Lender to
replace such Improvements with Improvements of at least equal
value.
Lender’s Right to
Enter. Lender and its
agents and representatives may enter upon the Real Property at all
reasonable times to attend to Lender’s interests and to
inspect the Property for purposes of Trustor’s compliance
with the terms and conditions of this Deed of Trust.
Compliance with Governmental
Requirements. Trustor
shall promptly comply with all laws, ordinances, and regulations,
now or hereafter in effect, of all governmental authorities
applicable to the use or occupancy of the Property, including
without limitation, the Americans With Disabilities Act. Trustor
may contest in good faith any such law, ordinance, or regulation
and withhold compliance during any proceedings, including
appropriate appeals, so long as Trustor has notified Lender in
writing prior to doing so and so long as, in Lender’s sole
opinion, Lender’s interests in the Property are not
jeopardized. Lender may require Trustor to post adequate security
or a surety bond, reasonably satisfactory to Lender, to protect
Lender’s interest.
Duty to Protect.
Trustor agrees neither to abandon
nor leave unattended the Property. Trustor shall do all other acts,
in addition to those so set forth above in this section, which from
the character and use of the Property are reasonably necessary to
protect and preserve the Property.
Page 4 of 23
DEED OF TRUST
(Continued)
DUE ON SALE—CONSENT BY LENDER.
Lender may, at its option, declare
immediately due and payable all sums secured by this Deed of Trust
upon the sale or transfer, without the Lender’s prior written
consent, of all or any part of the Real Property, or any interest
in the Real Property. A “sale or transfer” means the
conveyance of Real Property or any right, title or interest
therein; whether legal, beneficial or equitable; whether voluntary
or involuntary; whether by outright sale, deed, installment sale
contract, land contract, contract for deed, leasehold interest with
a term greater than three (3) years (provided, however, that
the foregoing shall not apply to leases that, when coupled with all
other prior leases, do not in the aggregate exceed 190,000 square
feet of space at the Property, further provided that such leases
are at rents equal to fair market value as reasonably determined by
Borrower in good faith), lease-option contract, or by sale,
assignment, or transfer of any beneficial interest in or to any
land trust holding title to the Real Property, or by any other
method of conveyance of Real Property interest. If Trustor is a
corporation, partnership or limited liability company, transfer
also includes any change in ownership of more than twenty five
percent (25%) of the voting stock, partnership interests or
limited liability company interests, as the case may be, of
Trustor. However, this option shall not be exercised by Lender if
such exercise is prohibited by applicable law.
TAXES AND LIENS.
The following provisions relating to
the taxes and liens on the Property are a part of this Deed of
Trust.
Payment. Trustor shall pay when due (and in all events at
least ten (10) days prior to delinquency) all taxes, special
taxes, assessment, charges (including water and sewer), fines and
impositions levied against or on account of the Property, and shall
pay when due all claims for work done on or for services rendered
or material furnished to the Property. Trustor shall maintain the
Property free of all liens having priority over or equal to the
interest of Lender under this Deed of Trust, except for the lien of
taxes and assessments not due, except for the existing indebtedness
referred to below, and except as otherwise provided in this Deed of
Trust.
Right To Contest.
Trustor may withhold payment of any
tax, assessment, or claim in connection with a good faith dispute
over the obligation to pay, so long as Lender’s interest in
the Property is not jeopardized. If a lien arises or is filed as a
result of nonpayment, Trustor shall within fifteen (15) days
after the lien arises or, if a lien is filed, within fifteen
(15) days after Trustor has written notice of the filing,
secure the discharge of the lien, or if requested by Lender,
deposit with Lender cash or a sufficient corporate surety bond or
other security satisfactory to Lender in an amount sufficient to
discharge the lien plus any costs and attorneys’ fees or
other charges that could accrue as a result of a foreclosure or
sale under the lien. In any contest, Trustor shall defend itself
and Lender and shall satisfy any adverse judgment before
enforcement against the Property. Trustor shall name Lender as an
additional obligee under any surety bond furnished in the contest
proceedings.
Evidence of Payment.
Trustor shall upon demand furnish to
Lender satisfactory evidence of payment of the taxes or assessments
and shall authorize the appropriate governmental official to
deliver to Lender at any time a written statement of the taxes and
assessments against the Property.
PROPERTY DAMAGE
INSURANCE. The following
provisions relating to insuring the Property are a part of this
Deed of Trust.
Maintenance of
Insurance. Trustor shall
procure and maintain policies of fire insurance with standard
extended coverage endorsements on a replacement basis for the full
insurable value covering all Improvements on the Real Property in
an amount sufficient to avoid application of any
coinsurance
Page 5 of 23
DEED OF TRUST
(Continued)
clause, and with a standard
mortgagee clause in favor of Lender. Trustor shall also procure and
maintain comprehensive general liability insurance in such coverage
amounts as Lender may request with Trustee and Lender being named
as additional insureds in such liability insurance policies.
Additionally, Trustor shall maintain such other insurance,
including but not limited to hazard, business interruption, and
boiler insurance, as Lender may reasonably require. Notwithstanding
the foregoing, in no event shall Trustor be required to provide
hazard insurance in excess of the replacement value of the
improvements on the Real Property. Policies shall be written in
form, amounts, coverages and basis reasonably acceptable to Lender
and issued by a company or companies reasonably acceptable to
Lender. Trustor, upon request of Lender, will deliver to Lender
from time to time the policies or certificates of insurance in form
satisfactory to Lender, including stipulations that coverages will
not be cancelled or diminished without at least ten
(10) days’ prior written notice to Lender. Each
insurance policy also shall include an endorsement providing that
coverage in favor of Lender will not be impaired in any way by any
act, omission or default of Trustor or any other person. Should the
Real Property at any time become located in an area designated by
the Director of the Federal Emergency Management Agency as a
special flood hazard area, Trustor agrees to obtain and maintain
Federal Flood Insurance for the full unpaid principal balance of
the loan, up to the maximum policy limits set under the National
Flood Insurance Program, or as otherwise required by Lender, and to
maintain such insurance for the term of the loan.
Application of
Proceeds. Trustor shall
promptly notify Lender of any loss or damage to the Property if the
estimated cost of repair or replacement exceeds $50,000.00. Lender
may make proof of loss if Trustor fails to do so within fifteen
(15) days of the casualty. If, in Lender’s good faith
judgment, Lender’s security interest in the Property has been
impaired, Lender may, at its election, receive and retain the
proceeds of any insurance and apply the proceeds to the reduction
of the Indebtedness, payment of any lien affecting the Property, or
the restoration and repair of the Property. If the proceeds are to
be applied to restoration and repair, Trustor shall repair or
replace the damaged or destroyed Improvements in a manner
satisfactory to Lender. Lender shall, upon satisfactory proof of
such expenditure, pay or reimburse Trustor from the proceeds for
the reasonable cost of repair or restoration if no Event of Default
exists under this Deed of Trust. Any proceeds which have not been
disbursed within 180 days after their receipt and which Lender has
not committed to the repair or restoration of the Property shall be
used first to pay any amount owing to Lender under this Deed of
Trust, then to pay accrued interest, and the remainder, if any,
shall be applied to the principal balance of the Indebtedness. If
Lender holds any proceeds after payment in full of the
Indebtedness, such proceeds shall be paid to Trustor as
Trustor’s interests may appear.
Unexpired Insurance at
Sale. Any unexpired
insurance shall inure to the benefit of, and pass to, the purchaser
of the Property covered by this Deed of Trust at any
trustee’s sale or other sale held under the provisions of
this Deed of Trust, or at any foreclosure sale of such
Property.
Trustor’s Report on
Insurance. Upon the
written request of Lender, however not more than once a year,
Trustor shall furnish to Lender a report on each existing policy of
insurance showing; (a) the name of the insurer; (b) the
risks insured; (c) the amount of the policy; (d) the
property insured; and (e) the expiration date of the
policy.
TAX AND INSURANCE
RESERVES. Following an
Event of Default and otherwise subject to any limitations set by
applicable law, Lender may require Trustor to maintain with Lender
reserves for payment of annual taxes, assessments, and insurance
premiums, which reserves shall be created by advance payment or
monthly payments of a sum estimated by Lender to be sufficient to
produce amounts at least equal to the
Page 6 of 23
DEED OF TRUST
(Continued)
taxes, assessments, and insurance premiums to be
paid. The reserve funds shall be held by Lender as a general
deposit from Trustor, which Lender may satisfy by payment of the
taxes, assessments, and insurance premiums required to be paid by
Trustor as they become due. Lender shall have the right to draw
upon the reserve funds to pay such items, and Lender shall not be
required to determine the validity or accuracy of any item before
paying it. Nothing in the Deed of Trust shall be construed as
requiring Lender to advance other monies for such purposes, and
Lender shall not incur any liability for anything it may do or omit
to do with respect to the reserve account. All amounts in the
reserve account are hereby pledged to further secure the
Indebtedness, and Lender is hereby authorized to withdraw and apply
such amounts on the Indebtedness upon the occurrence of an Event of
Default. Lender shall not be required to pay any interest or
earnings on the reserve funds unless required by law or agreed to
by Lender in writing. Lender does not hold the reserve funds in
trust for Trustor, and Lender is not Trustor’s agent for
payment of the taxes and assessments required to be paid by
Trustor.
EXPENDITURES BY
LENDER. If Trustor fails
to maintain the lien of this Deed of Trust in good standing as
required below, or if any action or proceeding is commenced that
would materially affect Lender’s interests in the Property,
Lender on Trustor’s behalf may, but shall not be required to,
take any action that Lender deems appropriate. Any amount that
Lender expends in so doing will bear interest at the rate provided
for in the Note from the date incurred or paid by Lender to the
date of repayment by Trustor. All such expenses, at Lender’s
option, will (a) be payable on demand, (b) be added to
the balance of the Note and be apportioned among and be payable
with any installment payments to become due during either
(i) the term of any applicable insurance policy or
(ii) the remaining term of the Note, or (c) be treated as
a balloon payment which will be due and payable at the Note’s
maturity. This Deed of Trust also will secure payment of these
amounts. The rights provided for in this paragraph shall be in
addition to any other rights or any remedies to which Lender may be
entitled on account of the default. Any such action by Lender shall
not be construed as curing the default so as to bar Lender from any
remedy that it otherwise would have had.
WARRANTY; DEFENSE OF
TITLE. The following
provisions relating to ownership of the Property are a part of this
Deed of Trust.
Title. Trustor warrants that: (a) Trustor holds
good and marketable title of record to the Property in fee simple,
free and clear of all liens and encumbrances other than those set
forth in the Real Property description or in any title insurance
policy, title report, or final title opinion issued in favor of,
and accepted by, Lender in connection with this Deed of Trust, and
(b) Trustor has the full right, power, and authority to
execute and deliver this Deed of Trust to Lender.
Defense of Title.
Subject to the exception in the
paragraph above, Trustor warrants and will forever defend the title
to the Property against the lawful claims of all persons. In the
event any action or proceeding is commenced that questions
Trustor’s title or the interest of Trustee or Lender under
this Deed of Trust, Trustor shall defend the action at
Trustor’s expense. Trustor may be the nominal party in such
proceeding, but Lender shall be entitled to participate in the
proceeding and to be represented in the proceeding by counsel of
Lender’s own choice, and Trustor will deliver, or cause to be
delivered, to Lender such instruments as Lender may request from
time to time to permit such participation
Compliance With Laws.
Trustor warrants that the Property
and Trustor’s use of the Property complies with all existing
applicable laws, ordinances, and regulations of governmental
authorities.
Page 7 of 23
DEED OF TRUST
(Continued)
CONDEMNATION. The following provisions relating to eminent
domain and inverse condemnation proceedings are a part of this Deed
of Trust.
Application of Net
Proceeds. If any award is
made or settlement entered into in any condemnation proceedings
affecting all or any part of the Property or by any proceeding or
purchase in lieu of condemnation, Lender may at its election, and
to the extent permitted by law, require that all or any portion of
the award or settlement be applied to the Indebtedness and to the
repayment of all reasonable costs, expenses, and attorney’s
fees incurred by Trustee or Lender in connection with the
condemnation proceedings.
Proceedings.
If any eminent domain or inverse
condemnation proceeding is commenced affecting the Property,
Trustor shall promptly notify Lender in writing, and Trustor shall
promptly take such steps as may be necessary to pursue or defend
the action and obtain the award. Trustor may be the nominal party
in any such proceeding, but Lender shall be entitled, at its
election, to participate in the proceeding and to be represented in
the proceeding by counsel of its own choice, and Trustor will
deliver or cause to be delivered to Lender such instruments as may
be requested by it from time to time to permit such
participation.
IMPOSITION OF TAXES, FEES AND
CHARGES BY GOVERNMENTAL AUTHORITIES. The following provisions relating to
governmental taxes, fees and charges are a part of this Deed of
Trust:
Current Taxes, Fees and
Charges. Upon request by
Lender, Trustor shall execute such documents in addition to this
Deed of Trust and take whatever other action is requested by Lender
to perfect and continue Lender’s lien on the Real Property.
Trustor shall reimburse Lender for all taxes, as described below,
together with all expenses incurred in recording, perfecting or
continuing this Deed of Trust, including without limitation all
taxes, fees, documentary stamps, and other charges for recording or
registering this Deed of Trust.
Taxes. The following shall constitute taxes to which
this section applies: (a) a specific tax upon this type of
Deed of Trust or upon all or any part of the Indebtedness secured
by this Deed of Trust; (b) a specific tax on Trustor which
Trustor is authorized or required to deduct from payments on the
Indebtedness secured by this type of Deed of Trust; (c) a tax
on this type of Deed of Trust chargeable against the Lender or the
holder of the Note; and (d) a specific tax on all or any
portion of the Indebtedness or on payments of principal and
interest made by Trustor.
Subsequent Taxes.
If any tax to which this section
applies is enacted subsequent to the date of this Deed of Trust,
this event shall have the same effect as an Event of Default (as
defined below), and Lender may exercise any or all of its available
remedies for an Event of Default as provided below unless Trustor
either (a) pays the tax before it becomes delinquent, or
(b) contests the tax as provided above in the “Taxes and
Liens” section and deposits with Lender cash or a sufficient
corporate surety bond or other security satisfactory to
Lender.
SECURITY AGREEMENT; FINANCING
STATEMENTS. The following
provisions relating to this Deed of Trust as a security agreement
are a part of this Deed of Trust.
Security Agreement.
This instrument shall constitute a
security agreement pursuant to the laws of the Commonwealth of
Virginia to the extent any of the Property constitutes fixtures or
other personal property of Trustor (but not as to fixtures or
personal property of tenants at the Property), and
Trustor
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DEED OF TRUST
(Continued)
(as “debtor”) hereby
grants to Lender (as “secured party”) a security
interest in and to any such fixtures and other personal property.
Lender shall have all of the rights of a secured party under the
Uniform Commercial Code as amended from time to time, in addition
to every other remedy given under this Deed of Trust or now or
hereafter existing at law or in equity or by statute in
Trustor’s fixtures and personal property.
Security Interest.
Upon request by Lender, Trustor
shall execute financing statements and any extensions, amendments
and renewals thereof and take whatever other action is requested by
Lender to perfect and continue Lender’s security interest in
the Rents and Personal Property. Trustor shall reimburse Lender for
all expenses incurred in perfecting or continuing this security
interest. Following an Event of Default, Trustor shall assemble the
Personal Property in a manner and at a place reasonably convenient
to Trustor and Lender and make it available to Lender within three
(3) business days after receipt of written demand from
Lender.
Addresses.
The mailing addresses of Trustor
(debtor) and Lender (secured party), from which information
concerning the security interest granted by this Deed of Trust may
be obtained (each as required by the Uniform Commercial Code), are
as stated on the first page of this Deed of Trust.
FURTHER ASSURANCES;
ATTORNEY-IN-FACT. The
following provisions relating to further assurances and
attorney-in-fact are a part of this Deed of Trust.
Further Assurances.
At any time, and from time to time,
upon written request of Lender, Trustor will make, execute and
deliver, or will cause to be made, executed or