SW3231005_Property Deed_20240123

Type: CONSOLIDATED REAL PROPERTY
Recorded: 2/6/2023 3:36:23 PM
Fee Amt: $128.00 Page 1 of 51
Rowan, NC
J. E. Brindle Register of Deeds
BK 1417 PG 812
DKOTA INVESTMENTS,INC., as Grantor
(Borrower)
to
DANIEL W.BROOKS, as Trustee
and
INDEPENDENT BANK,doing business as INDEPENDENT FINANCIAL,as Beneficiary
(Lender)
DEED OF TRUST,
SECURITY AGREEMENT AND FIXTURE FILING
Dated: January7/,2023
STATE OF NORTH CAROLINA
COUNTY OF ROWAN
This Document Serves as a Fixture Filing Under Section 25-9 - 502 of the North Carolina General
Statutes
Property: Corporate Center Drive, Salisbury,North Carolina
RECORDING REQUESTED BY:
PREPARED BY: Regent Law (RWF) a validly existing NC law firm
-
-1515 Mockingbird Ln, Suite 4115
_Charlotte, NC 28209 —
Opper&Gambrell,P.L.L.C.
8582 Katy Freeway, Suite 200 Upon Recordation Return To:
Houston,Texas 77024 Attn:Attention: Loan Operations
INDEPENDENT BANK, doing business as
INDEPENDENT FINANCIAL
P. O. Box 3035
McKinney,Texas 75070
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submitted electronically by "Regent Law"
in compliance with North Carolina statutes governing recordable documents
and the terms of the submitter agreement with the Rowan County Register of Deeds.
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TABLE OF CONTENTS
PAGE
Article 1 -Grants of Security 1
Section 1.1 Property Mortgaged 1
Section 1.2 Assignment of Leases and Rents 3
Section 1.3 Security Agreement 3
Section 1.4 Pledge of Monies Held 3
Section 1.5 Condition to Grant 4
Article 2-Debt and Obligations Secured/Payment Covenants 4
Section 2.1 Debt 4
Section 2.2 Other Obligations 4
Section 2.3 Payment of Debt 5
Section 2.4 Performance of Other Agreements 5
Section 2.5 Payments 5
Section 2.6 Incorporation by Reference 5
Article 3 -Property Covenants 5
Section 3.1 Property Use 5
Section 3.2 Management 5
Section 3.3 Insurance 6
Section 3.4 Payment of Taxes,Etc 8
Section 3.5 Escrow Fund 9
Section 3.6 Condemnation 10
Section 3.7 Restoration After Casualty/Condemnation 10
Section 3.8 Leases and Rents 13
Section 3.9 Maintenance and Use of Property 14
Section 3.10 Waste 15
Section 3.11 Compliance With Law 15
Section 3.12 [INTENTIONALLY DELETED] 16
Section 3.13 Payment for Labor and Materials 16
Section 3.14 [INTENTIONALLY DELETED] 16
Article 4-Borrowing Entity Covenants 16
Section 4.1 Existence 16
Section 4.2 ERISA 16
Section 4.3 Special Purpose Entity 16
Section 4.4 Change of Principal Place of Business/Chief Executive Office 18
Section 4.5 Change of Name,Identity or Structure 18
Section 4.6 [INTENTIONALLY DELETED] 18
Article 5-Representations and Warranties 18
Section 5.1 Warranty of Title 18
Section 5.2 Legal Status and Authority 18
Section 5.3 Validity of Documents 18
Section 5.4 Litigation 19
Section 5.5 Status of Property 19
Section 5.6 No Foreign Person 20
Section 5.7 Separate Tax Lot 20
Section 5.8 Leases 20
Section 5.9 Sales Contracts 20
Section 5.10 Financial Condition 20
Section 5.11 Business Purposes 21
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Section 5.12 Taxes 21
Section 5.13 Mailing Address 21
Section 5.14 No Change in Facts or Circumstances 21
Section 5.15 Disclosure 21
Section 5.16 Third Party Representations 21
Section 5.17 Illegal Activity 21
Section 5.18 Permitted Exceptions 21
Section 5.19 Principal Place of Business/Chief Executive Office 21
Section 5.20 ERISA 21
Article 6-Obligations and Reliance 22
Section 6.1 Relationship of Borrower and Lender 22
Section 6.2 No Reliance on Lender 22
Section 6.3 No Lender Obligations 22
Section 6.4 Reliance 22
Article 7-Further Assurances 22
Section 7.1 Recording of Security Instrument, etc 22
Section 7.2 Further Acts, etc 23
Section 7.3 Changes in Tax,Debt Credit and Documentary Stamp Laws 23
Section 7.4 [INTENTIONALLY DELETED] 23
Section 7.5 Flood Insurance 23
Section 7.6 Replacement Documents 23
Section 7.7 Amended Financing Statements 24
Article 8-Due on Sale/Encumbrance 24
Section 8.1 No Sale/Encumbrance 24
Section 8.2 Permitted Transfers 24
Section 8.3 Lender's Rights 25
Section 8.4 Transfer Definitions 25
Article 9-Prepayment 25
Section 9.1 Prepayment Before Event of Default 25
Article 10-Default 25
Section 10.1 Events of Default 25
Article 11 -Rights and Remedies 26
Section 11.1 Remedies 26
Section 11.2 Application of Proceeds 28
Section 11.3 Right to Cure Defaults 28
Section 11.4 Actions and Proceedings 28
Section 11.5 Recovery of Sums Required to Be Paid 28
Section 11.6 Examination of Books and Records 29
Section 11.7 Other Rights, etc 29
Section 11.8 Right to Release Any Portion of the Property 29
Section 11.9 Violations of Law 29
Section 11.10 Right of Entry 30
Section 11.11 Subrogation 30
Section 11.12 Failure to Provide Accurate Information 30
Article 12 -Environmental Hazards 30
Section 12.1 Environmental Representations and Warranties 30
Section 12.2 Environmental Covenants 30
Section 12.3 Lender's Rights 31
Section 12.4 Operations and Maintenance Programs 31
Section 12.5 Environmental Definitions 31
Article 13 -Indemnification 32
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Section 13.1 General Indemnification 32
Section 13.2 Mortgage and/or Intangible Tax 33
Section 13.3 Duty to Defend; Legal Fees and Other Fees and Expenses 33
Section 13.4 Environmental Indemnity 33
Article 14-Waivers 34
Section 14.1 Waiver of Counterclaim 34
Section 14.2 Marshalling and Other Matters 34
Section 14.3 Waiver of Notice 35
Section 14.4 Waiver of Statute of Limitations 35
Section 14.5 Sole Discretion of Lender 35
Section 14.6 Waiver of Trial by Jury 35
Section 14.7 Waiver of Foreclosure Defense 35
Article 15-Exculpation 35
Section 15.1 Exculpation 35
Article 16 -Notices 35
Section 16.1 Notices 35
Article 17-Choice of Law 35
Section 17.1 Choice of Law 35
Section 17.2 Provisions Subject to Law 37
Article 18 -Secondary Market 37
Section 18.1 Transfer of Loan 37
Section 18.2 Sale or Delegation of Servicing 37
Section 18.3 Dissemination of Information 37
Section 18.4 Cooperation 37
Section 18.5 Reserves/Escrows 37
Article 19-Costs 37
Section 19.1 Performance at Borrower's Expense 37
Section 19.2 Legal fees for Enforcement 38
Article 20-Definitions 38
Section 20.1 General Usage 38
Section 20.2 Definitions Glossary 38
Article 21 -Miscellaneous Provisions 39
Section 21.1 No Oral Change 39
Section 21.2 Liability 39
Section 21.3 Inapplicable Provisions 39
Section 21.4 Duplicate Originals;Counterparts 39
Section 21.5 Headings, etc 40
Section 21.6 Number and Gender 40
Article 22 -Deed of Trust Provisions 40
Section 22.1 Concerning the Trustee 40
Section 22.2 Trustee's Fees 40
Section 22.3 Certain Rights 40
Section 22.4 Retention of Money 41
Section 22.5 Perfection of Appointment 41
Section 22.6 Succession Instruments 41
Section 22.7 Trustee's power of sale(North Carolina) 41
Section 22.8 Partial Releases 44
Section 22.9 Future Advances 44
Section 22.10 North Carolina Law 45
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THIS DEED OF TRUST1 S CURITY AGREEMENT and FIXTURE FILING (the "Security
Instrument")is made as of January ,2023,by DKOTA INVESTMENTS,INC.,a Texas corporation,
having its principal place of business at 4848 Lemmon Avenue, Suite 622,Dallas,Texas 75219, as grantor
("Borrower")to DANIEL W.BROOKS,having an address at P.O. Box 3035,McKinney,Texas 75070, as
trustee ("Trustee") for the benefit of INDEPENDENT BANK, doing business as INDEPENDENT
FINANCIAL, 2829 Technology Forest Blvd., Suite 120, The Woodlands, Texas 77381, as beneficiary
("Lender"). Trustee is an employee of Lender. Lender shall have all of the rights and may exercise all of the
powers permitted by law, including those powers set forth in Sections 45-1, et seq of the North Carolina
General Statutes or any successor provision of law.
RECITALS:
Borrower by its promissory note of even date herewith given to Lender is indebted to Lender in the
principal sum of$3,397,525.00 in lawful money of the United States of America(the"Note"),with interest
from the date thereof at the rates set forth in the Note,maturing five(5)years from the date hereof,principal
and interest to be payable in accordance with the terms and conditions provided in the Note.
Borrower desires to secure the payment of the Debt and the performance of all of its obligations under
the Note and the Other Obligations. All capitalized terms shall have the meanings ascribed in the Definitions
Glossary in Section 20.2.
Article 1 -Grants of Security
Section 1.1 Property Mortgaged. Borrower does hereby irrevocably mortgage,grant,bargain,sell,
pledge,assign,warrant,transfer and convey to Trustee,its successors and assigns,for the benefit of Lender,
and grant a security interest to Lender and Trustee in,the following property,rights,interests and estates now
owned,or hereafter acquired by Borrower(collectively,the"Property"):
(a) Land. The real property described in Exhibit A attached hereto and made a part hereof(the
"Land");
(b) Additional Land. All additional lands,estates and development rights hereafter acquired by
Borrower for use in connection with the Land and the development of the Land that may, from time
to time,by supplemental mortgage or otherwise be expressly made subject to the lien of this Security
Instrument;
(c) Improvements. The buildings, structures, fixtures, additions, enlargements, extensions,
modifications, repairs, replacements and improvements now or hereafter erected or located on the
Land(the"Improvements");
(d) Easements. All easements, rights-of-way or use, rights, strips and gores of land, streets,
ways, alleys, passages, sewer rights, water, water courses, water rights and powers, air 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 the 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 the center line thereof and all the estates, rights, titles, interests,
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;
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(e) Fixtures and Personal Property. All machinery, equipment, fixtures (including, but not
limited to, all heating, air conditioning,plumbing, lighting, communications and elevator fixtures)
and other 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 operation 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"),including 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 of North Carolina or any other states where any portion of the
Property is located (the "Unifonn Commercial Code"), superior in lien to the lien of this Security
Instrument, and all proceeds and products of all of the above;
(f) Leases and Rents. All leases, subleases and other agreements affecting the use, enjoyment
or occupancy of the Land and/or the Improvements heretofore or hereafter entered into (and all
extensions, amendments and modifications thereto), whether before or after the filing by or against
Borrower of any petition for relief under Creditors Rights Laws(the"Leases")and all right,title and
interest of Borrower,its successors and assigns therein and thereunder,including,without limitation,
all guarantees,letters of credit and any other credit support given by any guarantor,cash or securities
deposited under the Lease 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 Creditors Rights Laws (the
"Rents")and all proceeds from the sale or other disposition of the Leases and the right to receive and
apply the Rents to the payment of the Debt;
(g) Insurance Proceeds. 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;
(h) Condemnation Awards. 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;
(i) Tax Certiorari. 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) Conversion. 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) Actions or Proceedings. 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;
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(1) Other Agreements. All agreements, contracts (including, without limitation, any and all
interest rate cap agreements, swaps or other interest hedging agreements), 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 occurrence and
during the continuance of an Event of Default,to receive and collect any sums payable to Borrower
thereunder;
(m) Intangibles. All accounts, escrows, chattel paper, deposits, trade names, trademarks,
servicemarks,logos,copyrights,goodwill,books and records and all other general intangibles related
to or used in connection with the operation of the Property;
(n) Causes of Action. All causes of action and claims against any Person (including without
limitation, all causes of action or claims arising in tort,by contract or for fraud or concealment of
material fact) for damages or injury to the Property or in connection with any transaction financed
in whole or in part by the proceeds of the Loan("Causes of Action"); and
(o) Other Rights. Any and all other rights of Borrower in and to the Property.
Section 1.2 Assignment of Leases and Rents. Borrower hereby collaterally assigns to Lender and
Trustee 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 an assignment for additional security only. 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. Lender shall have all rights and remedies provided under North Carolina General Statutes
Section 47-20. Nevertheless,subject to the terms of this Section 1.2 and Section 3.8,Lender grants Borrower
a revocable license to collect and receive the Rents.
Section 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,a security interest in the Personal Property and other collateral given as security
for the Obligations (whether denominated as part of the Property or otherwise) to the extent that under
Applicable Laws the same would be governed by the Uniform Commercial Code (collectively, "UCC;
Collateral") to the full extent that the Personal Property and other UCC Collateral may be subject to the
Uniform Commercial Code. Some of the items of the Property are goods that are or will become
fixtures. Borrower and Lender intend that, as to those goods, this Security Instrument shall be effective as
a financing statement filed as a fixture filing under Section 25-9-502 of the North Carolina Uniform
Commercial Code from the date of its filing for record in the real property records of the county in which the
Property is situated. For purposes of complying with the requirements of Section 25-9-502 of the North
Carolina General Statutes,the name of Borrower,as Debtor,and Lender,as Secured Party,and the respective
addresses of Borrower,as Debtor,and Lender,as Secured Party,are set forth on the first page of this Security
Instrument; the types or items of UCC Collateral are described in this paragraph and in the definition of the
"Property"appearing in Section 1.1 of this Security Instrument; and the description of the Land is set forth
on Exhibit"A"attached hereto. The Collateral is or includes fixtures.
Section 1.4 Pledge of Monies Held. Borrower hereby grants a security interest in and pledges to
Lender any and all monies now or hereafter held by Lender,including,without limitation,any sums deposited
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in the Escrow Fund, Net Proceeds and condemnation awards or payments described in Section 3.6, as
additional security for the Obligations until expended or applied as provided in this Security Instrument.
Section 1.5 Condition to Grant. TO HAVE AND TO HOLD the above granted and described
Property unto Trustee for and on behalf of Lender and to the use and benefit of Lender and Trustee,and the
successors and assigns of Lender and Trustee,forever; Borrower shall forever warrant, defend and preserve
the title and the validity and priority of the lien of this Security Instrument and shall forever warrant and
defend the same to Lender and/or Trustee against the claims of all persons whomsoever.
IN TRUST,WITH 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.
PROVIDED,HOWEVER, these presents are upon the express condition that,if Borrower shall pay
to Lender the Debt at the time and in the manner provided in the Note and this Security Instrument, shall
perform the Other Obligations as set forth in this Security Instrument and shall comply with each and every
covenant and condition set forth herein and in the Note, these presents and the estate hereby granted shall
cease,terminate and be void.
Article 2 -Debt and Obligations Secured/Payment Covenants
Section 2.1 Debt. This Security Instrument and the grants, assignments and transfers made in
Article 1 are given for the purpose of securing the payment of the fol lowing, in such order of priority as
Lender may determine in its sole discretion(the"Debt"):
(a) the indebtedness evidenced by the Note in lawful money of the United States of America;
(b) interest,default interest, late charges and other sums,as provided in the Loan Documents;
(c) the Prepayment Penalty, if any;
(d) all other monies agreed or provided to be paid by Borrower in the Loan Documents;
(e) all sums advanced pursuant to this Security Instrument to protect and preserve the Property
and the lien and the security interest created hereby;and
(f) all sums advanced and costs and expenses incurred by Lender in connection with the Debt
or any part thereof,any renewal,extension,modification,replacement,restatement or increase 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.
Section 2.2 Other Obligations. This Security Instrument and the grants,assignments and transfers
made in Article 1 are also given for the purpose of securing the performance of the following(the"Other
Obligations"):
(a) each obligation of Borrower contained herein;
(b) each obligation of Borrower contained in the other Loan Documents;and
(c) each obligation of Borrower contained in any renewal,extension,amendment,modification,
consolidation, change of, or substitution or replacement for, all or any part of the Loan Documents.
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Section 2.3 Payment of Debt. Borrower shall pay the Debt at the time and in the manner provided
in the Note and in this Security Instrument. Borrower's obligations for the payment of the Debt and the
performance of the Other Obligations shall be referred to collectively as the"Obligations."
Section 2.4 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 further securing
an Obligation and any amendments,modifications or changes thereto.
Section 2.5 Payments. Unless payments are made in the required amount in immediately available
funds at the place where the Note is payable,remittances in payment of all or any part of the Debt 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 the 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;provided,however,Lender shall
not be required to accept payment for any Obligation in cash. 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.
Section 2.6 Incorporation by Reference. All the covenants, conditions and agreements contained
in(a) the Note and(b) all and any of the documents other than the Note or this Security Instrument now or
hereafter executed by Borrower and/or others and by or in favor of Lender,which wholly or partially secure
or guaranty payment of the Note,the Other Obligations or are otherwise executed and delivered in connection
with the Loan including the loan agreement ("Loan Agreement") of even date by and among Lender,
Borrower and Guarantor (collectively such documents together with the Note and Security Instrument, the
"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.
Article 3 -Property Covenants
Borrower covenants and agrees that:
Section 3.1 Property Use. The Property shall be used only for multi-tenant office use and for no
other use without the prior written consent of Lender, which consent shall not be unreasonably withheld,
conditioned, or delayed.
Section 3.2 Management. (a)The Property shall be managed by either: (i)Borrower or an entity
affiliated with Borrower approved by Lender for so long as Borrower or said affiliated entity is managing the
Property in a manner consistent with best practices which are standard for the class and type of real estate of
which the Property would be considered a part;or(ii)a professional property management company approved
by Lender. Management by an affiliated entity or a professional property management company shall be
pursuant to a written agreement approved by Lender. In no event shall any manager be removed or replaced
or the terms of any management agreement modified or amended without the prior written consent of
Lender.
(b) In the event(i)of default hereunder or under any management contract then in effect,which
default is not cured within any applicable grace or cure period,(ii)the debt service coverage ratio as
determined by Lender applicable to the Property is less than 1.20 to 1.00 for the six(6)month period
immediately preceding the calculation, or (iii) of the bankruptcy or insolvency of the manager,
Lender shall have the right to immediately terminate,or to direct Borrower to immediately terminate,
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such management contract and to retain, or to direct Borrower to retain, a new management agent
approved by Lender.
(c) All Rents generated by or derived from the Property shall first be utilized solely for current
expenses directly attributable to the ownership and operation of the Property, including, without •
limitation,current expenses relating to Borrower's liabilities and obligations with respect to the Loan
Documents, and none of the Rents generated by or derived from the Property shall be diverted by
Borrower and utilized for any other purpose unless all such current expenses attributable to the
ownership and operation of the Property have been fully paid and satisfied.
Section 3.3 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) Property Insurance. Insurance with respect to the Improvements and Personal
Property insuring against any peril now or hereafter included within the classification"Cause
of Loss -- Special Form" (sometimes referred to as "All Risk of Physical Loss"), together
with an "Ordinance and Law" endorsement, in amounts at all times sufficient to prevent
Lender from becoming a co-insurer within the terms of the Policies and under Applicable
Law, but in any event such insurance shall be maintained in an amount which, after
application of deductible,shall be equal to the full insurable value of the Improvements and
Personal Property,the term"full insurable value"to mean the actual replacement cost of the
Improvements and Personal Property (without taking into account any depreciation, and
exclusive of excavations, footings and foundations, landscaping and paving) determined
annually by an insurer, a recognized independent insurance broker or an independent
appraiser selected and paid by Borrower and in no event less than the coverage required
pursuant to the terms of any Lease(the"Replacement Cost");
(ii) Liability Insurance. Commercial general liability insurance on the so-called
"occurrence"form, including bodily injury, death and property damage liability, insurance
against any and all claims, including all legal liability to the extent insurable and imposed
upon Lender and all court costs and legal fees and expenses,arising out of or connected with
the possession, use, leasing, operation, maintenance or condition of the Property in such
amounts as are generally available at commercially reasonable premiums and are generally
required by institutional lenders for properties comparable to the Property but in any event
for a limit per occurrence of at least $1,000,000 and an annual aggregate of at least
$2,000,000;
(iii) Workers'Compensation Insurance. Statutory workers'compensation insurance with
respect to any work on or about the Property;
(iv) Business Interruption. Business interruption and/or loss of "rental income"
insurance in an amount sufficient to avoid any co-insurance penalty and to provide proceeds
which will cover a period of not less than one year from the date of casualty or loss,
containing an extended period of indemnity endorsement which provides that after the
physical loss to the Improvements and the Personal Property has been repaired,the continued
loss of income will be insured until such income returns to the same level it was prior to the
loss,or the expiration of twelve months from the date of the loss,whichever first occurs,and
notwithstanding that the policy may expire prior to the end of such period. The term"rental
income"means for purposes of this Section the sum of(A)the total then ascertainable Rents
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payable under the Leases and(B)the total ascertainable amount of all other amounts to be
received by Borrower from third parties which are the legal obligation of the tenants,
reduced to the extent such amounts would not be received because of operating expenses not
incurred during a period of non-occupancy of that portion of the Property then not being
occupied;
(v) Boiler and Machinery Insurance. If requested by Lender, broad form boiler and
machinery insurance(without exclusion for explosion)covering all boilers or other pressure
vessels, machinery, and equipment located in, on or about the Property(including"system
breakdown coverage") and insurance against loss of occupancy or use arising from any
breakdown in such amounts as are generally required by institutional lenders for properties
comparable to the Property;
(vi) Flood Insurance. If required by Subsections 5.5(1) and 7.5, flood insurance in an
amount at least equal to the lesser of(A) the Replacement Cost together with business
interruption coverage and (B) the maximum limit of coverage available for the Property
under the National Flood Insurance Act of 1968,The Flood Disaster Protection Act of 1973
and the National Flood Insurance Reform Act of 1994,as each may be amended(the"Flood
Insurance Acts");
(vii) Builder's Risk Insurance. At all times during which construction, repairs or
alterations are being made with respect to the Improvements which either affect the structure
of the Improvements or will cost in excess of 10%of the value of the Property(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 3.3(a)(i) written in a so-called builder's risk
completed value form (1) on a non-reporting basis, (2) against all risks insured against
pursuant to Subsection 3.3(a)(i), (3) including permission to occupy the Property, and (4)
with an agreed amount endorsement waiving co-insurance provisions; and
(viii) Other Insurance. Such other insurance with respect to the Property or on any
replacements or substitutions or additions or increased coverage limits as may from time to
time be required by Lender against other insurable hazards or casualties which at the time
are commonly insured against in the case of property similarly situated, including, without
limitation,sinkhole,mine subsidence,earthquake and environmental insurance, due regard,
being given to the height and type of buildings, their construction, location, use and
occupancy.
(b) All insurance provided for in Subsection 3.3(a) shall be for a term of not less than one (1)
year and obtained under valid and enforceable policies (the "Policies" or in the singular, the
"Policy"), and shall be issued by one or more other domestic primary insurer(s) having a general
policy rating of A or better and a financial class of IX or better by A.M. Best Company, Inc. (or if
a rating of A.M. Best Company Inc. is no longer available, a similar rating from a similar or
successor service). All insurers providing insurance required by this Security Instrument shall be
authorized and admitted to issue insurance in the state in which the Property is located. The Policy
referred to in Subsection 3.3(a)(ii) and (vii,) above shall name Lender as an additional insured and
the Policies referred to in Subsection 3.3(a)(i),(iv),(v),(vi)and(vii),and as applicable(viii),above
shall provide that all proceeds be payable to Lender as set forth in Section 3.7 hereof. The Policies
referred to in Subsections 3.3(a)(i), (v), (vi) and (vii) shall also contain: (i) a standard
"non-contributory mortgagee" endorsement or its equivalent relating, inter alia, to recovery by
Lender notwithstanding the negligent or willful acts or omission of Borrower; (ii) to the extent
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available at commercially reasonable rates, a waiver of subrogation endorsement as to Lender; and
(iii) an endorsement providing for a deductible per loss of an amount not more than that which is
customarily maintained by prudent owners of similar properties in the general vicinity of the
Property,but in no event in excess of$25,000 except in the case of windstorm,flood,or earthquake,
the deductible shall not be in excess of$25,000. All Policies shall contain(i)a provision that such
Policies shall not be denied renewal, materially changed (other than to increase the coverage
provided), cancelled or terminated, nor shall they expire, without at least thirty (30) days' prior ;
written notice to Lender in each instance; and (ii) include effective waivers by the insurer of all
claims for applicable premiums ("Insurance Premiums") against any mortgagee, loss payees,
additional insureds and named insureds(other than Borrower). Evidence of insurance with respect
to all renewal and replacement Policies shall be delivered to Lender not less than fifteen (15) days
prior to the expiration date of any of the Policies required to be maintained hereunder which evidence
shall bear notations evidencing payment of Insurance Premiums. Originals or evidence of such
replacement Policies shall be delivered to Lender promptly after Borrower's receipt thereof but in
any case within thirty (30) days after the effective date thereof and not less than fifteen (15) days
prior to the termination of the Policies previously delivered to Lender. If Borrower fails to maintain
and deliver to Lender the original Policies or evidence of insurance required by this Security
Instrument,Lender may procure such insurance at Borrower's sole cost and expense.
(c) Borrower shall comply with all insurance requirements and shall not bring or keep or permit
to be brought or kept any article upon any of the Property or cause or permit any condition to exist
thereon which would be prohibited by an insurance requirement, or would invalidate the insurance
coverage required hereunder to be maintained by Borrower on or with respect to any part of the
Property pursuant to this Section 3.3 and shall not purchase any additional amounts of insurance that
would cause Lender to become a co-insurer within the terms of the Policies.
(d) Unless Lender requires Borrower to obtain a separate Policy or Policies under Section 3.3(a),
the insurance coverage required may be effected under a blanket Policy or Policies covering the
Property; provided that any such blanket Policy shall specify, except in the case of commercial
general liability insurance, the premises address of each building, the portion of the total coverage
of such Policy that is allocated to the Property, and shall in any case provide the same protection as
would a separate policy insuring only the Property and otherwise comply in all other respects with
the requirements of this Section 3.3.
(e) Subject to Section 3.7,Lender may apply the Net Proceeds of any Policies carried under this
Section 3.3 as a result of damage or destruction to the Property to the reduction or discharge of the
Debt whether or not then due and payable.
(f) In the event of a foreclosure of the 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 the Policies then in force concerning the Property and all proceeds payable thereunder shall
thereupon vest in Lender or the purchaser at such foreclosure or other transferee in the event of such
other transfer of title.
Section 3.4 Payment of Taxes,Etc.
(a) Borrower shall promptly pay by their due date 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")not paid from the Escrow
Fund,all ground rents,maintenance charges and similar charges,now or hereafter levied or assessed
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or imposed against the Property or any part thereof(the"Other Charges"),and all charges for utility
services provided to the Property as same become due and payable. 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.
(b) After prior written notice to Lender, Borrower, at its own expense, may contest by
appropriate legal proceeding,promptly initiated and conducted in good faith and with due diligence,
the amount or validity or application in whole or in part of any of the Taxes, provided that (i) no
Event of Default has occurred and is continuing under any of the Loan Documents,(ii)Borrower is
permitted to do so under the provisions of any other mortgage, deed of trust or deed to secure debt
affecting the Property,(iii)such proceeding shall suspend the collection of the Taxes from Borrower
and from the Property or Borrower shall have paid all of the Taxes under protest, (iv) such
proceeding shall be permitted under and be conducted in accordance with the provisions of any other
instrument to which Borrower is subject and shall not constitute a default thereunder, (v)neither the
Property nor any part thereof or interest therein will be in danger of being sold,forfeited,terminated,
cancelled or lost and (vi) Borrower shall have deposited with Lender adequate reserves for the
payment of the Taxes, together with all interest and penalties thereon,unless Borrower has paid all
of the Taxes under protest, or Borrower shall have furnished the security as maybe required in the
proceeding, or as may be reasonably requested by Lender to insure the payment of any contested
Taxes, together with all interest and penalties thereon, taking into consideration the amount in the
Escrow Fund available for payment of Taxes.
Section 3.5 Escrow Fund. Upon the occurrence of and during the continuance of an Event of
Default(as defined in the Loan Agreement),upon Lender's request,Borrower shall establish with Lender an
Escrow Fund sufficient to discharge Borrower's obligations for the payment of Insurance Premiums and
Taxes pursuant to Sections 3.3 and 3.4 hereof. Initial deposits of Taxes and Insurance Premiums plus a two
month reserve of each shall be made by Borrower to Lender on the date hereof to be held by Lender in
escrow. Additionally,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 initial deposits together with 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 or obtains 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. Provided
there are sufficient amounts in the Escrow Fund and no Event of Default exists,Lender shall be obligated to
pay the Taxes and Insurance Premiums as they become due on their respective due dates on behalf of
Borrower by applying the Escrow Fund to the payment of such Taxes and Insurance Premiums required to
be made by Borrower pursuant to Sections 3.3 and 3.4. If the amount of the Escrow Fund shall exceed the
amounts due for Taxes and Insurance Premiums pursuant to Sections 3.3 and 3.4, Lender shall, in its
discretion,return any excess to Borrower or credit such excess pro rata against payments to be made to the
Escrow Fund over a twelve month period. 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 +;
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shall reasonably estimate as sufficient to make up the deficiency. The Escrow Fund shall not constitute a trust
fund and may be commingled with other monies held by Lender. Unless otherwise required by Applicable
Law,no earnings or interest on the Escrow Fund shall be payable to Borrower. Notwithstanding anything
contained herein to the contrary, Lender's obligation to timely pay Taxes or Insurance Premiums out of the ;?
Escrow Fund shall be limited to those specific types of Taxes and Insurance Premiums for which it is
collecting the monthly escrow payments, as designated in writing by Lender.
Section 3.6 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 notices and papers served in connection with such proceedings. Lender may participate in any
such proceedings to the extent permitted by law. Upon an Event of Default,Borrower shall 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. Borrower shall not make any agreement in lieu
of condemnation of the Property or any portion thereof without the prior written consent of Lender in each
instance, which consent shall not be unreasonably withheld or delayed in the case of a taking of an
insubstantial portion of the Property. 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), and whether or not any award or payment made in any
condemnation or eminent domain proceeding(an "Award") is made available to Borrower for Restoration
in accordance with Section 3.7, 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 shall have been actually received and applied 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 in the Note. Borrower shall cause the Award made in any condemnation or eminent domain
proceeding,which is payable to Borrower,to be paid directly to Lender. Subject to Section 3.7,Lender may
apply any Award to the reduction or discharge of the Debt whether or not then due and payable. If the
Property is sold,through foreclosure or otherwise,prior to the receipt by Lender of the Award,Lender shall
have the right, whether or not a deficiency judgment on the Note (to the extent permitted in the Note or
herein) shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to
pay the Debt.
Section 3.7 Restoration After Casualty/Condemnation.
(a) If the Property shall be damaged or destroyed, in whole or in part,by fire or other casualty,
or if the Property or any portion thereof is taken in any condemnation or eminent domain proceeding,
Borrower shall give prompt notice of such damage or taking to Lender. Borrower shall promptly
commence and diligently proceed to restore, repair, replace or rebuild the Property (the
"Restoration") in a workmanlike manner to the extent practicable to be of at least equal value and
condition and substantially the same character as the Property was immediately prior to such fire or
other casualty or taking,with such alterations as may be approved by Lender.
(b) The term"Net Proceeds"for purposes of this Section 3.7 shall mean: (i) the net amount of
all insurance proceeds under the Policies carried pursuant to Subsections 3.3(a)(i),(iv),(v),(vi),(vii)
and (viii) of this Security Instrument as a result of such damage or destruction, after deduction of
Lender's reasonable costs and expenses(including,but not limited to reasonable legal fees),if any,
in collecting the same, or(ii)the net amount of all Awards after deduction of Lender's reasonable
costs and expenses(including,but not limited to reasonable legal fees),if any,in collecting the same,
whichever the case may be. If(i) the Net Proceeds do not exceed the lesser of 10% of the unpaid
principal balance of the Loan or$100,000(the"Availability Threshold");(ii)the costs of completing
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the Restoration as reasonably estimated by Borrower shall be less than or equal to the Net Proceeds;
(iii)no Event of Default shall have occurred and be continuing under any of the Loan Documents;
(iv)the Property and the use thereof after the Restoration will be in compliance with, and permitted
under, all Applicable Laws; (v) (A) if the Net Proceeds are insurance proceeds, less than 50%of
the total floor area of the Improvements has been damaged or destroyed, or rendered unusable as a
result of such fire or other casualty; or(B) if the Net Proceeds are condemnation awards, less than
50% of the Land constituting the Property is taken, such Land that is taken is located along the
perimeter or periphery of the Property,no portion of the Improvements is located in such Lands,and
such taking does not materially impair access to the Property; and(vi)Lender shall be satisfied that
any operating deficits, including all scheduled payments of principal and interest under the Note
which will be incurred with respect to the Property as a result of the occurrence of any such fire or
other casualty or taking,whichever the case may be,will be covered out of(1)the Net Proceeds,or
(2)other funds of Borrower, then the Net Proceeds will be disbursed directly to Borrower.
(c) If the Net Proceeds are greater than the Availability Threshold, such Net Proceeds shall,
subject to the provisions of the Leases that are superior to the lien of this Security Instrument or with
respect to which subordination and non-disturbance agreements binding upon Lender have been
entered into and such subordination and non-disturbance agreements apply to the deposits of Net
Proceeds, be forthwith paid to Lender, to be held by Lender in a segregated account to be made
available to Borrower for the Restoration in accordance with the provisions of this Subsection 3.7(c).
The Net Proceeds held by Lender pursuant to this Section 3.7 other than the Net Proceeds
paid under the Policy described in Subsection 3.3(a)(iv)(the"Rental Loss Proceeds")shall be made
available to Borrower for payment or reimbursement of Borrower's expenses in connection with the
Restoration, subject to the following conditions:
(i) no Event of Default shall have occurred and be continuing under any of the Loan
Documents;
(ii) Lender shall, within a reasonable period of time prior to a request for an initial
disbursement,be furnished with an estimate of the cost of the Restoration accompanied by
an independent architect's opinion based on due professional investigation as to such costs
and appropriate plans and specifications for the Restoration, such plans and specifications
and cost estimates to be subject to Lender's approval, not to be unreasonably withheld or
delayed;
(iii) the Net Proceeds, together with any cash or cash equivalent deposited by Borrower
with Lender,are sufficient to cover the cost of the Restoration as such costs are certified by
the independent architect;
(iv) Net Proceeds are less than the then outstanding principal balance of the Note;
(v) (A)in the event that the Net Proceeds are insurance proceeds, less than 50%of the
total floor area of the Improvements has been damaged or destroyed, or rendered unusable
as a result of such fire or other casualty; or (B) in the event that the Net Proceeds are
condemnation awards, less than 50% of the Land constituting the Property is taken, such ,
Land that is taken is located along the perimeter or periphery of the Property,no portion of
the Improvements is located in such Lands and such taking does not materially impair access
to the Property;
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(vi) Lender shall be satisfied that any operating deficits, including all scheduled
payments of principal and interest under the Note which will be incurred with respect to the
Property as a result of the occurrence of any such fire or other casualty or taking,whichever
the case may be,will be covered out of(1)the Net Proceeds,or(2)other funds of Borrower;
(vii) Lender shall be satisfied that,upon the completion of the Restoration, the net cash
flow of the Property will be restored to a level sufficient in Lender's sole judgment to cover
all carrying costs and operating expenses of the Property,including,without limitation,debt
service on the Note at a coverage ratio(after deducting all reserves required by Lender from
net operating income)of at least 1.20 to 1.00;
(viii) the Restoration can reasonably be completed on or before the earliest to occur of(A)
six(6)months prior to the Maturity Date, (B)the earliest date required for such completion
under the terms of any Major Leases and(C)such time as may be required under Applicable
Laws in order to repair and restore the Property to as nearly as possible the condition it was
in immediately prior to such fire or other casualty or to such taking,as applicable;
(ix) the Property and its use after the Restoration will be in compliance with, and
permitted under, all Applicable Laws; and
(x) each Major Lease in effect as of the date of the occurrence of such fire or other
casualty shall remain in full force and effect during and after the completion of the
Restoration without abatement of rent beyond the time required for Restoration.
(d) The Net Proceeds held by Lender until disbursed in accordance with the provisions of this
Section 3.7 shall constitute additional security for the Obligations. The Net Proceeds other than the
Rental Loss Proceeds shall be disbursed by Lender to, or as directed by, Borrower, in an amount
equal to the costs actually incurred from time to time for work in place as part of the Restoration less
customary retainage from time to time during the course of the Restoration,not more frequently than
once per month,upon receipt of evidence satisfactory to Lender that(A) all materials installed and
work and labor performed (except to the extent that they are to be paid for out of the requested
disbursement) in connection with the Restoration have been paid for in full, and (B)there exist no
notices of pendency,stop orders,fund trapping notices,mechanic's or materialman's liens or notices
of intention to file the same, or any other liens or encumbrances of any nature whatsoever on the
Property arising out of the Restoration which have not either been fully bonded and discharged of
record or in the alternative fully insured to the satisfaction of Lender by the title company insuring
the lien of this Security Instrument. The Rental Loss Proceeds shall be disbursed by Lender to pay
for debt service under the loan evidenced by the Note, to pay other expenses incurred by Borrower
in connection with the ownership and operation of the Property,and the remainder thereof,to,or as
directed by, Borrower to pay for the cost of the Restoration in accordance with this Section
3.7(d). Final payment shall be made after submission to Lender of all licenses,permits,certificates
of occupancy and other required approvals of governmental authorization having jurisdiction and a
certification of an independent consulting engineer selected by Lender(the"Restoration Consultant")
that the Restoration has been fully completed.
(e) Lender shall have the use of the plans and specifications and all permits, licenses and
approvals required or obtained in connection with the Restoration. The identity of the contractors,
subcontractors and materialmen engaged in the Restoration,as well as the contracts under which they
have been engaged, shall be subject to prior review and acceptance by Lender and the Restoration
Consultant, such acceptance not to be unreasonably withheld or delayed. All costs and expenses
incurred by Lender in connection with making the Net Proceeds available for the Restoration
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including,without limitation,reasonable legal fees and disbursements and the fees of the Restoration
Consultant, shall be paid by Borrower.
(f) If at any time the Net Proceeds or the undisbursed balance thereof shall not,in the reasonable
opinion of Lender, be sufficient to pay in full the balance of the costs which are estimated by the
Restoration Consultant to be incurred in connection with the completion of the Restoration,Borrower
shall deposit the deficiency (the "Restoration Deficiency") in immediately available funds with
Lender before any further disbursement of the Net Proceeds shall be made. The Restoration
Deficiency deposited with Lender shall be held by Lender and shall be disbursed for costs actually
incurred in connection with the Restoration on the same conditions applicable to the disbursement
of the Net Proceeds, and until so disbursed pursuant to this Section 3.7 shall constitute additional
security for the Obligations.
(g) Except upon the occurrence and continuance of an Event of Default,Borrower shall settle
any insurance claims with respect to the Net Proceeds which in the aggregate are less than the
Availability Threshold. Lender shall have the right to participate in and reasonably approve any
settlement for insurance claims with respect to the Net Proceeds which in the aggregate are greater
than the Availability Threshold. If an Event of Default shall have occurred and be continuing,
Borrower hereby irrevocably empowers Lender, in the name of Borrower as its true and lawful
attorney-in-fact, to file and prosecute such claim and to collect and to make receipt for any such
payment. If the Net Proceeds are received by Borrower, such Net Proceeds shall, until the
completion of the related work,be held in trust for Lender and shall be segregated from other funds
of Borrower to be used to pay for the cost of the Restoration in accordance with the terms hereof.
(h) The excess,if any,of the Net Proceeds and the remaining balance,if any,of the Restoration
Deficiency deposited with Lender after (i) the Restoration Consultant certifies to Lender that the
Restoration has been completed in accordance with the provisions of this Section 3.7, and (ii) the
receipt by Lender of evidence satisfactory to Lender that all costs incurred in connection with the
Restoration have been paid in full and all required permits, licenses, certificates of occupancy and
other required approvals of governmental authorities having jurisdiction have been issued, shall be
remitted by Lender to Borrower, provided no Event of Default shall have occurred and shall be
continuing under any of the Loan Documents.
(i) All Net Proceeds not required (i) to be made available for the Restoration or (ii) to be
returned to Borrower as excess Net Proceeds pursuant to Subsection 3.7(h) shall be retained and
applied by Lender toward the payment of the Debt whether or not then due and payable in such order,
priority and proportions as Lender in its discretion shall deem proper or,at the discretion of Lender,
the same shall be paid,either in whole or in part,to Borrower. If Lender shall receive and retain Net
Proceeds, the lien of this Security Instrument shall be reduced only by the amount received and
retained by Lender and actually applied by Lender in reduction of the Debt.
Section 3.8 Leases and Rents.
(a) Borrower may enter into a proposed Lease(including the renewal or extension of an existing
Lease (a "Renewal Lease")) without the prior written consent of Lender, provided such proposed
Lease or Renewal Lease (i)provides for rental rates and terms comparable to existing local market
rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is
executed by Borrower(unless,in the case of a Renewal Lease,the rent payable during such renewal,
or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an
arm's-length transaction with a bona fide, independent third-party tenant, (iii) does not have a
materially adverse effect on the value of the Property taken as a whole,(iv)is subject and subordinate
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to the Security Instrument and the lessee thereunder agrees in writing to attorn to Lender on
conditions reasonably acceptable to Lender, (v)is written on the standard form of lease approved by
Lender, and (vi) is not a Major Lease. All proposed Leases which do not satisfy the requirements
set forth in this Subsection 3.8(a) shall be subject to the prior approval of Lender and its counsel,
which approval will not be unreasonably withheld, conditioned, or delayed, at Borrower's s,
expense. Borrower shall promptly deliver to Lender copies of all Leases which are entered into
pursuant to this Subsection together with Borrower's certification that it has satisfied all of the
conditions of this Subsection. For purposes of this Section,the term"Major Lease"shall mean any
Lease for space to be leased which exceeds ten percent(10%)of total rentable space of the Property
together with any instrument guaranteeing or providing credit support therefor.
(b) 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 any of the Leases as
security for the Debt;(ii)upon request,shall promptly send copies to Lender of all notices of default
which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms,
covenants and conditions contained in the Leases upon the part of the tenant thereunder to be
observed or performed; (iv) shall not collect any of the Rents more than one(1) month in advance
(except security deposits shall not be deemed Rents collected in advance); (v)shall not execute any
other assignment of the lessor's interest in any of the Leases or the Rents; and(vi)shall not consent
to any assignment of or subletting under any Leases not in accordance with their terms,without the
prior written consent of Lender.
(c) Except for Major Leases,Borrower may,without the consent of Lender, amend, modify or
waive the provisions of any Lease or terminate,reduce rents under,accept a surrender of space under,
or shorten the term of, any Lease provided that such action (taking into account, in the case of a
termination, reduction in rent, surrender of space or shortening of term, the planned alternative use
of the affected space)does not have a materially adverse effect on the value of the Property taken as
a whole,and provided that such Lease,as amended,modified or waived,is otherwise in compliance
with the requirements of this Security Instrument and any subordination agreement binding upon
Lender with respect to such Lease. A termination of a Lease with a tenant who is in default beyond
applicable notice and grace periods shall not be considered an action which has a materially adverse
effect on the value of the Property taken as a whole. Any amendment, modification, waiver,
termination, rent reduction, space surrender or term shortening which does not satisfy the
requirements set forth in this Subsection shall be subject to the prior approval of Lender and its
counsel,at Borrower's expense. Borrower shall promptly deliver to Lender copies of amendments,
modifications and waivers which are entered into pursuant to this Subsection together with
Borrower's certification that it has satisfied all of the conditions of this Subsection.
Section 3.9 Maintenance and Use of Property. Except for those renovations and repairs
contemplated by Lender and Borrower to be made over time using Loan funds to pay the cost thereof,
Borrower shall at all times 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)without the consent of Lender. 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 3.6
and shall complete and pay for any structure at any time in the process of construction or repair on the
Land. Borrower shall 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
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to be discontinued or the nonconforming Improvement to be abandoned without the express written consent
of Lender.
Section 3.10 Waste. Borrower shall not commit or suffer any waste of the Property or make any d
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 impair the value
of the Property or the security of this Security Instrument. Borrower will not, without the prior written
consent of Lender,permit any drilling or exploration for or extraction,removal,or production of any minerals
from the surface or the subsurface of the Land, regardless of the depth thereof or the method of mining or
extraction thereof.
Section 3.11 Compliance With Law.
(a) Borrower shall promptly comply with all Applicable Laws affecting the Property,or the use
thereof.
(b) Borrower shall from time to time, upon Lender's request, provide Lender with evidence
reasonably satisfactory to Lender that the Property complies with all Applicable Laws or is exempt
from compliance with Applicable Laws.
(c) Notwithstanding any provisions set forth herein or in any document regarding Lender's
approval of alterations of the Property, Borrower shall not alter the Property in any manner which
would (i) materially increase Borrower's responsibilities for compliance with Applicable Laws or
(ii)adversely affect(x)Borrower's financial condition,(y)the value of the Property or(z)the gross
income derived from the Property without the prior written approval of Lender. Lender's approval
of the plans, specifications, or working drawings for alterations of the Property shall create no
responsibility or liability on behalf of Lender for their completeness, design, sufficiency or their
compliance with Applicable Laws. The foregoing shall apply to tenant improvements constructed
by Borrower or by any of its tenants. Lender may condition any such approval upon receipt of a
certificate of compliance with Applicable Laws from an independent architect, engineer, or other
person acceptable to Lender.
(d) Borrower shall 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.
(e) After prior written notice to Lender, Borrower, at its own expense, may contest by
appropriate legal proceeding,promptly initiated and conducted in good faith and with due diligence,
the Applicable Laws affecting the Property,provided that(i)no Event of Default has occurred and
is continuing under any of the Loan Documents; (ii) Borrower is permitted to do so under the
provisions of any other mortgage, deed of trust or deed to secure debt affecting the Property; (iii)
such proceeding shall be permitted under and be conducted in accordance with the provisions of any
other instrument to which Borrower or the Property is subject and shall not constitute a default
thereunder; (iv) neither the Property, any part thereof or interest therein, any of the tenants or
occupants thereof, nor Borrower shall be affected in any material adverse way as a result of such
proceeding;(v)non-compliance with the Applicable Laws shall not impose civil or criminal liability
on Borrower or Lender;and(vi)Borrower shall have furnished to Lender all other items reasonably
requested by Lender.
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Section 3.12 Payment for Labor and Materials. Borrower will promptly pay when due all bills and
costs for labor,materials, and specifically fabricated materials incurred in connection with the Property and
never permit to exist in respect of the Property or any part thereof any lien or security interest, even though
inferior to the liens and the security interests hereof, and in any event 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.
Section 3.13 [INTENTIONALLY DELETED]
Article 4 -Borrowing Entity Covenants
Borrower covenants and agrees that:
Section 4.1 Existence. Borrower will continuously maintain(a)its existence and shall not dissolve
or permit its dissolution, (b) its rights to do business in the state where the Property is located and (c) its
franchises and trade names, if any.
Section 4.2 ERISA. (a) It shall not engage in any transaction which would cause any obligation,
or action taken or to be taken, hereunder (or the exercise by Lender of any of its rights under the Loan
Documents)to be a non-exempt(under a statutory or administrative class exemption)prohibited transaction
under the Employee Retirement Income Security Act of 1974, as amended("ERISA").
(b) Borrower further covenants and agrees to deliver to Lender such certifications (subject to
Article 7 hereof)or other evidence from time to time throughout the term of the Security Instrument,
as requested by Lender in its sole discretion, that(i)Borrower is not an"employee benefit plan"as
defined in Section 3(3) of ERISA,which is subject to Title I of ERISA, or a "governmental plan"
within the meaning of Section 3(32)of ERISA;(ii)Borrower is not subject to state statutes regulating
investments and fiduciary obligations with respect to governmental plans; and (iii) one or more of
the following circumstances is true:
(A) Equity interests in Borrower are publicly offered securities, within the
meaning of 29 C.F.R. §2510.3-101(b)(2);
(B) Less than 25 percent of each outstanding class of equity interests in
Borrower are, held by "benefit plan investors" within the meaning of
29 C.F.R. §2510.3-101(f)(2);or
(C) Borrower qualifies as an "operating company" or a "real estate operating
company"within the meaning of 29 C.F.R. §2510.3-101(c)or(e) or an investment
company registered under the Investment Company Act of 1940.
Section 4.3 Special Purpose Entity.
(a) Borrower has not and will not:
(i) [intentionally deleted];
(ii) [intentionally deleted];
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(iii) merge into or consolidate with any Person,or dissolve,terminate,liquidate in whole
or in part,transfer or otherwise dispose of all or substantially all of its assets or change its
legal structure;
(iv) fail to observe all organizational formalities, or fail to preserve its existence as an
entity duly organized, validly existing and in good standing (if applicable) under the
Applicable Laws of the jurisdiction of its organization or formation, or amend, modify,
terminate or fail to comply with the provisions of its organizational documents;
(v) own any subsidiary,or make any investment in, any Person;
(vi) commingle its assets with the assets of any other Person;
(vii) [intentionally deleted];
(viii) fail to maintain its records, books of account, bank accounts, financial statements,
accounting records and other entity documents separate and apart from those of any other
Person;
(ix) enter into any contract or agreement with any general partner,member,shareholder,
principal or affiliate, except upon terms and conditions that are intrinsically fair and
substantially similar to those that would be available on an arm's-length basis with
unaffiliated third parties;
(x) maintain its assets in such a manner that it will be costly or difficult to segregate,
ascertain or identify its individual assets from those of any other Person;
(xi) assume or guaranty the debts of any other Person, hold itself out to be responsible
for the debts of any other Person, or otherwise pledge its assets for the benefit of any other
Person or hold out its credit as being available to satisfy the obligations of any other Person;
(xii) make any loans or advances to any Person;
(xiii) fail to file its own tax returns(unless prohibited by Applicable Laws from doing so);
(xiv) fail either to hold itself out to the public as a legal entity separate and distinct from
any other Person or to conduct its business solely in its own name or fail to correct any
known misunderstanding regarding its separate identity;
(xv) fail to maintain adequate capital for the normal obligations reasonably foreseeable
in a business of its size and character and in light of its contemplated business operations;
(xvi) if it is a partnership or limited liability company, without the unanimous written
consent of all of its partners or members, as applicable, and the written consent of 100%of
the members of the board of directors of any general partner or managing member of
Borrower or its general partner,as applicable,(a)file or consent to the filing of any petition,
either voluntary or involuntary,to take advantage of any applicable insolvency,bankruptcy,
liquidation or reorganization statute, (b) seek or consent to the appointment of a receiver,
liquidator or any similar official, (c)take any action that might cause such entity to become
insolvent, or(d)make an assignment for the benefit of creditors;
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(xvii) fail to allocate shared expenses(including, without limitation, shared office space)
and to use separate stationery,invoices and checks;
(xviii) fail to pay its own liabilities (including, without limitation, salaries of its own ,
employees)from its own funds; and
(xix) acquire obligations or securities of its partners, members, shareholders or other
affiliates, as applicable.
Section 4.4 Change of Principal Place of Business/Chief Executive Office. Borrower shall not
change the principal place of business or chief executive office set forth in Subsection 5.19 below without
the consent of Lender, which consent shall not be unreasonably withheld. Lender's consent shall be
conditioned upon,among other things,the execution and delivery of additional financing statements,security
agreements and other instruments which may be necessary to effectively evidence or perfect Lender's security
interest in the Property as a result of such change of principal place of business.
Section 4.5 Change of Name, Identity or Structure. Except as may be expressly permitted under
Article 8,Borrower will not change Borrower's name,identity(including its trade name or names)or,if not
an individual,Borrower's corporate,partnership or other 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 case of a change in
Borrower's structure,without first obtaining the prior written consent of Lender.
Section 4.6 [INTENTIONALLY DELETED]
Article 5-Representations and Warranties
Borrower represents and warrants to Lender that:
Section 5.1 Warranty of Title. Borrower has good title to the Property and has the right to
mortgage,grant,bargain,sell,pledge,assign,warrant,transfer and convey the same and Borrower possesses
an unencumbered fee simple absolute estate in the Land and the Improvements and it owns the Property free
and clear of all liens, encumbrances and charges whatsoever except for those exceptions shown in the title
insurance policy insuring the lien of this Security Instrument(the"Permitted Exceptions").
Section 5.2 Legal Status and Authority. Borrower (a) is duly organized, validly existing and in
good standing under the laws of its state of organization or incorporation; (b) is duly qualified to transact
business and is in good standing in the state where the Property is located;and(c)has all necessary approvals,
governmental and otherwise,and full power and authority to own,operate and lease the Property. Borrower
has full power,authority and legal right to mortgage,grant,bargain,sell,pledge,assign,warrant,transfer and
convey the Property pursuant to, and to keep and observe all of, the terms of this Security Instrument.
Section 5.3 Validity of Documents. (a) The execution, delivery and performance of the Loan
Documents and the borrowing evidenced by the Note(i)are within the power and authority of Borrower;(ii)
have been authorized by all requisite organizational action; (iii) have received all necessary approvals and
consents, corporate, governmental or otherwise; (iv) will not violate, conflict with, result in a breach of or
constitute(with notice or lapse of time, or both) a material default under any provision of law, any order or
judgment of any court or governmental authority, the articles of incorporation,by-laws,partnership or trust
agreement,articles of organization, operating agreement,or other governing instrument of Borrower,or any
indenture, agreement or other instrument to which Borrower is a party or by which it or any of its assets or
the Property is or may be bound or affected;(v)will not result in the creation or imposition of any lien,charge
or encumbrance whatsoever upon any of its assets, except the lien and security interest created hereby; and
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(vi) will not require any authorization or license from, or any filing with, any governmental or other body
(except for the recordation of this Security Instrument and the separate Assignment of Lease and Rents given
by Borrower to Lender in appropriate land records in the State where the Property is located and except for
Uniform Commercial Code filings relating to the security interest created hereby), (b)the Loan Documents
have been duly executed and delivered by Borrower through the undersigned authorized representative of
Borrower and (c) to Borrower's Knowledge, the Loan Documents constitute the legal, valid and binding
obligations of Borrower.
Section 5.4 Litigation. There is no action,suit or proceeding,judicial,administrative or otherwise
(including any condemnation or similar proceeding), pending or, to Borrower's Knowledge, threatened or
contemplated against Borrower or Guarantor, or any general partner or managing member of Borrower or
against or affecting the Property that has not been disclosed to Lender by Borrower in writing.
Section 5.5 Status of Property.
(a) Borrower has obtained or will in a timely manner obtain,all necessary certificates, licenses
and other approvals,governmental and otherwise,necessary for the operation of the Property and the
conduct of its business and all required zoning, building code, land use, environmental and other
similar permits or approvals, all of which are in full force and effect as of the date hereof and not
subject to revocation, suspension,forfeiture or modification.
(b) To the Knowledge of Borrower, the Property and the present and contemplated use and
occupancy thereof are in full compliance with all Applicable Laws.
(c) The Property is served by all utilities required for the current or contemplated use
thereof. All utility service is provided by public utilities and the Property has accepted or is equipped
to accept such utility service.
(d) All public roads and streets necessary for service of and access to the Property for the current
or contemplated use thereof have been completed,are serviceable and all-weather and are physically
and legally open for use by the public.
(e) The Property is served by public water and sewer systems.
(f) The Property is free from damage caused by fire or other casualty.
(g) To the Knowledge of Borrower, all costs and expenses of any and all labor, materials,
supplies and equipment used in the construction of the Improvements have been paid in full.
(h) Borrower has paid in full for,and is the owner of,all Personal Property(other than tenants'
property)used in connection with the operation of the Property,free and clear of any and all security
interests,liens or encumbrances, except the lien and security interest created hereby.
(i) To the Knowledge of Borrower,after due inquiry,all liquid and solid waste disposal,septic
and sewer systems located on the Property are in a good and safe condition and repair and in
compliance with all Applicable Laws.
(j) All security deposits relating to the Leases reflected on the certified rent roll delivered to
Lender have been collected by Borrower except as noted on the certified rent roll.
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(k) Borrower has received no notice of any actual or threatened condemnation or eminent
domain proceedings by any public or quasi-public authority.
(1) No portion of the Improvements is located in an area identified by the Federal Emergency •
Management Agency or any successor thereto as an area having special flood hazards pursuant to
the Flood Insurance Acts or, if any portion of the Improvements is located within such area,
Borrower has obtained and will maintain the insurance prescribed in Subsection 3.3(a)(vi).
(m) All the Improvements lie within the boundaries of the Land.
Section 5.6 No Foreign Person. Borrower is not a"foreign person"within the meaning of Section
1445(f)(3) of the Internal Revenue Code of 1986, as amended and the related Treasury Department
regulations.
Section 5.7 Separate Tax Lot. The Land and Improvements are assessed for real estate tax purposes
as one or more wholly independent tax lot or lots, separate from any adjoining land or improvements not
constituting a part of such lot or lots, and no other land or improvements is assessed and taxed together with
the Property or any portion thereof.
Section 5.8 Leases. Except as disclosed in the rent roll for the Property delivered to and approved
by Lender,(a)Borrower is the sole owner of the entire lessor's interest in the Leases;(b)the Leases are valid
and enforceable and in full force and effect;(c)all of the Leases are arm's-length agreements with bona fide,
independent third parties;(d)no party under any Lease is in default;(e)all Rents due have been paid in full;
(f) the terms of all alterations, modifications and amendments to the Leases are reflected in the certified
occupancy statement delivered to and approved by Lender;(g)none of the Rents reserved in the Leases have
been assigned or otherwise pledged or hypothecated;(h)none of the Rents have been collected for more than
one (1)month in advance (except a security deposit shall not be deemed rent collected in advance); (i)the
premises demised under the Leases have been completed and the tenants under the Leases have accepted the
same and have taken possession of the same on a rent-paying basis; (j) there exist no offsets or defenses to
the payment of any portion of the Rents and Borrower has no monetary obligation to any tenant under any
Lease; (k)Borrower has received no notice from any tenant challenging the validity or enforceability of any
Lease; (1) there are no agreements with the tenants under the Leases other than expressly set forth in each
Lease; (m) the Leases are valid and enforceable against Borrower and the tenants set forth therein; (n) no
Lease contains an option to purchase, right of first refusal to purchase, right of first refusal to relet, or any
other similar provision; (o)no Person has any possessory interest in, or right to occupy,the Property except
under and pursuant to a Lease; (p) each Lease is subordinate to this Security Instrument, either pursuant to
its terms or a recordable subordination agreement; (q) no Lease has the benefit of a non-disturbance
agreement that would be considered unacceptable to prudent institutional lenders; (r) all security deposits
relating to the Leases reflected on the certified rent roll delivered to Lender have been collected by Borrower;
and(s)no brokerage commissions or finders fees are due and payable regarding any Lease.
Section 5.9 Sales Contracts. (Intentionally Deleted.)
Section 5.10 Financial Condition. (a)(i)Borrower is solvent, and no proceeding under Creditors
Rights Laws with respect to Borrower has been initiated,and(ii)Borrower has received reasonably equivalent
value for the granting of this Security Instrument.
(b) No petition in bankruptcy has been filed by or against Borrower, any Guarantor, or any
related entity, or any principal, general partner or member thereof, in the last seven (7) years, and
neither Borrower,any Guarantor,nor any related entity,or any principal,general partner or member
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thereof,in the last seven(7)years has ever made any assignment for the benefit of creditors or taken
advantage of any Creditors Rights Laws.
Section 5.11 Business Purposes. The Loan is solely for the business purpose of Borrower, and is
not for personal,family,household,or agricultural purposes.
Section 5.12 Taxes. Borrower and any Guarantor have filed all federal, state, county, municipal,
and city income,personal property and other tax returns required to have been filed by them and have paid
all taxes and related liabilities which have become due pursuant to such returns or pursuant to any
assessments received by them. Neither Borrower nor any Guarantor knows of any basis for any additional
assessment in respect of any such taxes and related liabilities for prior years.
Section 5.13 Mailing Address. Borrower's mailing address, as set forth in the opening paragraph
hereof or as changed in accordance with the provisions hereof, is true and correct.
Section 5.14 No Change in Facts or Circumstances. All information in the application for the Loan
submitted to Lender and in all financial statements, rent rolls, reports, certificates and other documents
submitted in connection with the application or in satisfaction of the terms thereof,are accurate,complete and
correct in all respects. There has been no adverse change in any condition, fact, circumstance or event that
would make any such information inaccurate,incomplete or otherwise misleading.
Section 5.15 Disclosure. Borrower has disclosed to Lender all material facts and has not failed to
disclose any material fact that could cause any representation or warranty made herein to be materially
misleading.
Section 5.16 Third Party Representations. Each of the representations and the warranties made by
each Guarantor in any Other Security Document(s)is true and correct in all material respects.
Section 5.17 Illegal Activity. No portion of the Property has been or will be purchased, improved,
equipped, fixtured, or furnished with proceeds of any criminal or other illegal activity and to Borrower's
Knowledge, there are no illegal activities or activities relating to controlled substances at the Property.
Section 5.18 Permitted Exceptions. Exceptions. None of the Permitted Exceptions, individually
or in the aggregate,materially interferes with the benefits of the security intended to be provided by the Loan
Documents,materially and adversely affects the value of the Property,impairs the use or the operation of the
Property or impairs Borrower's ability to pay its obligations in a timely manner.
Section 5.19 Principal Place of Business/Chief Executive Office. BolTower's principal place of
business and its chief executive office as of the date hereof is as set forth in the opening paragraph of this
Security Instrument.
Section 5.20 ERISA.
(a) As of the date hereof and throughout the term of this Security Instrument,(i)Borrower is not
and will not be an"employee benefit plan"as defined in Section 3(3)of ERISA,which is subject to
Title I of ERISA, and (ii)the assets of Borrower do not and will not constitute"plan assets"of one
or more such plans for purposes of Title I of ERISA; and
(b) As of the date hereof and throughout the term of this Security Instrument(i)Borrower is not
and will not be a "governmental plan" within the meaning of Section 3(32) of ERISA and (ii)
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transactions by or with Borrower are not and will not be subject to state statutes applicable to
Borrower regulating investments of and fiduciary obligations with respect to governmental plans.
Article 6-Obligations and Reliance
Section 6.1 Relationship of Borrower and Lender. The relationship between Borrower and Lender
is solely that of debtor and creditor,and Lender has no fiduciary or other special relationship with Borrower,
and no term or condition of any of the Loan Documents shall be construed so as to deem the relationship
between Borrower and Lender to be other than that of debtor and creditor.
Section 6.2 No Reliance on Lender. The members, general partners,principals and (if Borrower
is a trust)beneficial owners of Borrower are experienced in the ownership and operation of properties similar
to the Property, and Borrower and Lender are relying solely upon such expertise in connection with the
ownership and operation of the Property. Borrower is not relying on Lender's expertise, business acumen
or advice in connection with the Property.
Section 6.3 No Lender Obligations. Notwithstanding any provision of the Loan Documents,Lender
is not undertaking the performance of(i)any obligations under the Leases;or(ii)any obligations with respect
to such agreements, contracts, certificates, instruments, franchises,permits, trademarks, licenses and other
documents. By accepting or approving anything required to be observed,performed or fulfilled or to be given
to Lender pursuant to the Loan Documents, including without limitation, any officer's certificate, balance
sheet,statement of profit and loss or other financial statement,survey,appraisal,or insurance policy,Lender
shall not be deemed to have warranted,consented to,or affirmed the sufficiency,the legality or effectiveness
of same,and such acceptance or approval thereof shall not constitute any warranty or affirmation with respect
thereto by Lender.
Section 6.4 Reliance. Borrower recognizes and acknowledges that in accepting the Loan
Documents, Lender is expressly and primarily relying on the truth and accuracy of the warranties and
representations set forth in Article 5 and Article 12 without any obligation to investigate the Property and
notwithstanding any investigation of the Property by Lender;that such reliance existed on the part of Lender
prior to the date hereof; that the warranties and representations are a material inducement to Lender in
accepting the Loan Documents; and that Lender would not be willing to make the Loan and accept this
Security Instrument in the absence of the warranties and representations as set forth in Article 5 and Article
12.
Article 7-Further Assurances
Section 7.1 Recording of Security Instrument, etc. Borrower forthwith upon the execution and
delivery of this Security Instrument and thereafter,from time to time,will cause this Security Instrument and
any of the other Loan Documents creating a lien or security interest or evidencing the lien hereof upon the
Property and each instrument of further assurance to be filed,registered or recorded in such manner and in
such places as may be required by any present or future law in order to publish notice of and fully to protect
and perfect the lien or security interest hereof upon,and the interest of Lender in,the Property. Borrower will
pay all taxes, filing, registration or recording fees, and all expenses incident to the preparation, execution,
acknowledgment and/or recording of any of the Loan Documents, any note or deed of trust or mortgage
supplemental hereto, any security instrument with respect to the Property and any instrument of further
assurance,and any modification or amendment of the foregoing documents,and all federal,state,county and
municipal taxes,duties, imposts, assessments and charges arising out of or in connection with the execution
and delivery of this Security Instrument, any deed of trust or mortgage supplemental hereto, any security
instrument with respect to the Property or any instrument of further assurance, and any modification or
amendment of the foregoing documents, except where prohibited by law so to do.
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Section 7.2 Further Acts, etc. Borrower will, at the cost of Borrower, and without expense to
Lender, do, execute, acknowledge and deliver all and every such further acts, deeds, conveyances, deeds of
trust,mortgages,assignments,notices of assignments,transfers and assurances as Lender shall,from time to
time,reasonably require,for the better assuring,conveying,assigning,transferring,and confirming to Lender
and Trustee the Property and rights hereby deeded, mortgaged, granted, bargained, sold, conveyed,
confirmed, pledged, assigned, warranted and transferred or intended now or hereafter so to be, or which
Borrower may be or may hereafter become bound to convey or assign to Lender, or for carrying out the
intention or facilitating the performance of the terms of this Security Instrument,or other Loan Documents,
or for filing, registering or recording this Security Instrument, or for complying with Applicable
Laws. Borrower, on demand, will execute and deliver and hereby authorizes Lender, following 10 days'
notice to Borrower, to execute in the name of Borrower or without the signature of Borrower to the extent
Lender may lawfully do so, one or more financing statements, chattel mortgages or other instruments, to
evidence or perfect more effectively the security interest of Lender in the Property. Borrower grants to
Lender an irrevocable power of attorney coupled with an interest for the purpose of exercising and perfecting
any and all rights and remedies available to Lender pursuant to this Section 7.2.
Section 7.3 Changes in Tax,Debt Credit and Documentary Stamp Laws.
(a) If any law is enacted or adopted or amended after the date of this Security Instrument which
deducts the Debt from the value of the Property for the purpose of taxation or which imposes a tax,
either directly or indirectly, on the Debt or Lender's interest in the Property,Borrower will pay the
tax,with interest and penalties thereon,if any. If Lender is advised by counsel chosen by it that the
payment of tax by Borrower would be unlawful or taxable to Lender or unenforceable or provide the
basis for a defense of usury, then Lender shall have the option, exercisable by written notice of not
less than ninety(90)days,to declare the Debt immediately due and payable.
(b) Borrower will not claim or demand or be entitled to any credit or credits on account of the
Debt for any part of the Taxes or Other Charges assessed against the Property, or any part thereof,
and no deduction shall otherwise be made or claimed from the assessed value of the Property,or any
part thereof,for real estate tax purposes by reason of this Security Instrument or the Debt. If such
claim, credit or deduction shall be required by law, Lender shall have the option, exercisable by
written notice of not less than ninety(90)days,to declare the Debt immediately due and payable.
(c) If at any time the United States of America,any State thereof or any subdivision of any such
State shall require revenue or other stamps to be affixed to any of the Loan Documents or impose any
other tax or charge on the same, Borrower will pay for the same, with all interest and penalties
thereon.
Section 7.4 [INTENTIONALLY DELETED]
Section 7.5 Flood Insurance. After Lender's request,Borrower shall deliver evidence satisfactory
to Lender that no portion of the Improvements is situated in a federally designated"special flood hazard area"
under the Flood Insurance Acts or, if it is, that Borrower has obtained insurance meeting the requirements
of Section 3.3(a)(vi).
Section 7.6 Replacement Documents. Upon receipt of an affidavit of an officer of Lender as to the
loss, theft,destruction or mutilation of any of the Loan Documents which is not of public record,and, in the
case of any such mutilation,upon surrender and cancellation of such Loan Document,Borrower will issue,
in lieu thereof,a replacement Loan Document,dated the date of such lost,stolen,destroyed or mutilated Loan
Document in the same principal amount thereof and otherwise of like tenor.
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Section 7.7 Amended Financing Statements. Bon-ower will execute and deliver to the Lender,prior
to or contemporaneously with the effective date of any change, any financing statement or financing
statement change required by the Lender to establish or maintain the validity, perfection and priority of the
security interest granted herein. At the request of the Lender, Borrower shall execute a certificate in form
satisfactory to the 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.
Article 8-Due on Sale/Encumbrance
Section 8.1 No Sale/Encumbrance.
(a) Borrower shall not cause or permit a Sale or Pledge of the Property or any part thereof or any
legal or beneficial interest therein nor permit a Sale or Pledge of an interest in any Restricted Party
(collectively, a"Prohibited Transfer"), other than pursuant to Leases of space in the Improvements
to tenants in accordance with the provisions of Section 3.8, without the prior written consent of
Lender.
(b) A Prohibited Transfer shall include,but not be limited to,(i)an installment sales agreement
wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments;
(ii) an agreement by Borrower leasing all or a substantial part of the Property for other than actual
occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a
security interest in, Borrower's right, title and interest in and to any Leases or any Rents; (iii) if a
Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation's
stock or the creation or issuance of new stock in one or a series of transactions; (iv) if a Restricted
Party is a limited or general partnership or joint venture, any merger or consolidation or the change,
removal,resignation or addition of a general partner or the Sale or Pledge of the partnership interest
of any general or limited partner or any profits or proceeds relating to such partnership interests or
the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited
liability company, any merger or consolidation or the change,removal, resignation or addition of a
managing member or non-member manager(or if no managing member, any member) or the Sale
or Pledge of the membership interest of a managing member (or if no managing member, any
member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of
non-managing membership interests or the creation or issuance of new non-managing membership
interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale
or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new
legal or beneficial interests;or(vii)the removal or the resignation of the managing agent(including,
without limitation, an Affiliated Manager) other than in accordance with Section 3.2.
Section 8.2 Permitted Transfers. Notwithstanding the provisions of Section 8.1, the following
transfers shall not be deemed to be a Prohibited Transfer: (a) a transfer by devise or descent or by operation
of law upon the death of a manager, member, partner or shareholder of a Restricted Party; (b) the Sale or
Pledge, in one or a series of transactions, of not more than forty-nine percent (49%) of the stock, limited
partnership interests or non-managing membership interests (as the case may be) in a, Restricted Party;
provided, however, no such transfers shall result in a change in Control in the Restricted Party, and as a
condition to each such transfer, Lender shall receive not less than ten(10)days prior written notice of such
proposed transfer. Notwithstanding anything to the contrary contained in this Section 8.2, Wm. Roger
Gregory must continue to own and control,directly or indirectly, at least a 51%interest in Borrower.
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Section 8.3 Lender's Rights. Lender reserves the right to condition the consent to a Prohibited
Transfer requested hereunder upon a modification of the terms hereof and on assumption of the Note, and
the other Loan Documents as so modified by the proposed Prohibited Transfer,payment of a transfer fee of
one percent (1%), and all of Lender's expenses incurred in connection with such Prohibited Transfer, the
proposed transferee's continued compliance with the covenants set forth in this Security Instrument,
including,without limitation, the covenants in Section 4.3 or such other conditions and/or legal opinions as
Lender shall determine in its sole discretion to be in the interest of Lender. All expenses incurred by Lender
shall be payable by Borrower whether or not Lender consents to the Prohibited Transfer. Lender shall not
be required to demonstrate any actual impairment of its security or any increased risk of default hereunder
in order to declare the Debt immediately due and payable upon a Prohibited Transfer without Lender's
consent. This provision shall apply to every Prohibited Transfer,whether or not Lender has consented to any
previous Prohibited Transfer.
Section 8.4 Transfer Definitions. For purposes of this Article 8,an"Affiliated Manager"shall mean
any managing agent in which Borrower or Guarantor or any general partner or managing member of
Borrower has, directly or indirectly, any legal, beneficial or economic interest; "Control" shall mean the
power to direct the management and policies of a Restricted Party, directly or indirectly, whether through
the ownership of voting securities or other beneficial interests, by contract or otherwise; "Restricted Party"
shall mean Borrower or Guarantor or any general partner or managing member of Borrower; and a"Sale or
Pledge" shall mean a voluntary or involuntary sale, conveyance, mortgage, grant, bargain, encumbrance,
pledge, assignment, grant of any options with respect to, or any other transfer or disposition of(directly or
indirectly,voluntarily or involuntarily,by operation of law or otherwise,and whether or not for consideration
or of record)of a legal or beneficial interest.
Article 9-Prepayment
Section 9.1 Prepayment Before Event of Default. The Debt may not be prepaid in whole or in part
except in strict accordance with the express terms and conditions of the Note.
Article 10-Default
Section 10.1 Events of Default. The occurrence of any one or more of the following events shall
constitute an"Event of Default"after any applicable notice and failure to cure as provided for in the Loan
Agreement:
(a) if any portion of the Debt is not paid on or prior to expiration of the grace period provided
in the Note or if the entire Debt is not paid on or before the maturity date of the Note;or if any Event
of Default(as defined in the Note,for purposes of this Section 10.1(a)only)occurs under the Note;
(b) if any of the Taxes or Other Charges is not paid when the same is due and payable except
to the extent sums sufficient to pay such Taxes and Other Charges have been deposited with Lender
in accordance with the terms of this Security Instrument;
(c) if the Policies are not kept in full force and effect, or if the Policies are not delivered to
Lender as provided in Section 3.3(b);
(d) if Borrower violates or does not comply with any of the provisions of Section 4.3 or Article
8; or
(e) if any representation or warranty of,or with respect to,Borrower,or any person guaranteeing
payment of the Debt or any portion thereof or performance by Borrower of any of the terms of this
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Security Instrument(a"Guarantor"), or any member, general partner, principal or beneficial owner
of any of the foregoing, made herein or in any guaranty, or in any certificate, report, financial
statement or other instrument or document furnished to Lender shall have been false or misleading •
in any material respect when made.
Article 11 -Rights and Remedies
Section 11.1 Remedies. Upon the occurrence of any Event of Default,Borrower agrees that Lender
may(or acting by or through Trustee with respect to a non judicial foreclosure may)take such action,without
notice or demand(except as required by law), as it deems advisable to protect and enforce its rights against
Borrower and in and to the Property, including,but not limited to the following actions, each of which may
be pursued concurrently or otherwise, at such time and in such order as Lender may determine, in its sole
discretion,without impairing or otherwise affecting the other rights and remedies of Lender:
(a) declare the entire unpaid Debt to be immediately due and payable;
(b) institute proceedings, judicial or otherwise, for the complete foreclosure of this Security
Instrument under any Applicable Law in which case the Property or any interest therein may be sold
for cash or upon credit in one or more parcels or in several interests or portions and in any order or
manner;
(c) with or without entry, to the extent permitted and pursuant to the procedures provided by
Applicable Law, institute proceedings for the partial foreclosure of this Security Instrument for the
portion of the Debt then due and payable, subject to the continuing lien and security interest of this
Security Instrument for the balance of the Debt not then due,unimpaired and without loss of priority;
(d) sell for cash or upon credit the Property or any part thereof and all estate, claim, demand,
right, title and interest of Borrower therein and rights of redemption thereof, pursuant to power of
sale or otherwise, at one or more sales, in one or more parcels, at such time and place, upon such
terms and after such notice thereof as may be required or permitted by Applicable Law;
(e) subject to the exculpatory provisions of the Note, if any, institute an action, suit or
proceeding in equity for the specific performance of any covenant,condition or agreement contained
in the Loan Documents;
(f) subject to the exculpatory provisions of the Note,if any,recover judgment on the Note either
before, during or after any proceedings for the enforcement of this Security Instrument or the other
Loan Documents;
(g) apply for the appointment of a receiver, trustee, liquidator or conservator of the Property,
without notice and without regard for the adequacy of the security for the Debt and without regard
for the solvency of Borrower or Guarantor or of any Person liable for the payment of the Debt;
(h) subject to any Applicable Law, the license granted to Borrower to collect Rents under
Section 1.2 shall automatically be revoked and Lender may enter into or upon the Property, either
personally or by its agents, nominees or attorneys and dispossess Borrower and its agents and
servants therefrom, without liability for trespass, damages or otherwise and exclude Borrower and
its agents or servants wholly therefrom,and take possession of all books,records,accounts,rent rolls,
leases (including the form lease) subleases (including the form sublease) and rental and license
agreements with the tenants, subtenants and licensees in possession of the Property or any part or
parts thereof; tenants', subtenants' and licensees' money deposits or other property (including,
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without limitation,any letter of credit)given to secure tenants',subtenants'and licensees'obligations
under leases,subleases or licenses,together with a list of the foregoing;all lists pertaining to current
rent and license fee arrears; any and all architects' plans and specifications, licenses and permits,
documents,books,records,accounts,surveys and property which relate to the management,leasing,
operation, occupancy, ownership, insurance, maintenance, or service of or construction upon the ,
Property and Borrower agrees to surrender possession of the foregoing and of the Property to Lender
upon demand, and thereupon Lender may(i)use,operate,manage,control,insure,maintain,repair,
restore and otherwise deal with all and every part of the Property and conduct the business thereat;
(ii)complete any construction on the Property in such manner and form as Lender deems advisable;
(iii)make alterations,additions,renewals,replacements and improvements to or on the Property;(iv)
exercise all rights and powers of Borrower with respect to the Property, whether in the name of
Borrower or otherwise, including without limitation, the right to make, cancel, enforce or modify
Leases, obtain and evict tenants, and demand, sue for, collect and receive all Rents of the Property
and every part thereof; (v) either require Borrower(A)to pay monthly in advance to Lender,or any
receiver appointed to collect the Rents,the fair and reasonable rental value for the use and occupation
of such part of the Property as may be occupied by Borrower, or (B) to vacate and surrender
possession of the Property to Lender or to such receiver and, in default thereof, Borrower may be
evicted by summary proceedings or otherwise; and (vi) apply the receipts from the Property to the
payment of the Debt,in such order,priority and proportions as Lender shall deem appropriate in its
sole discretion after deducting therefrom all expenses (including reasonable legal fees) incurred in
connection with the aforesaid operations and all amounts necessary to pay the Taxes,Other Charges,
Insurance Premiums and other expenses in connection with the Property, as well as just and
reasonable compensation for the services of Lender, its counsel, agents and employees;
(i) exercise any and all rights and remedies granted to a secured party upon default under the
Uniform Commercial Code, including, without limiting the generality of the foregoing: (i)the right
to take possession of the Personal Property and other UCC Collateral or any part thereof,and to take
such other measures as Lender may deem necessary for the care,protection and preservation of the
Personal Property and other UCC Collateral,and(ii)request Borrower at its expense to assemble the
Personal Property and other UCC Collateral and make it available to Lender at a convenient place
acceptable to Lender. Any notice of sale, disposition or other intended action by Lender or Trustee
with respect to the Personal Property and other UCC Collateral sent to Borrower in accordance with
the provisions hereof at least ten (10) days prior to such action, shall constitute commercially
reasonable notice to Borrower;
(j) exercise any and all rights and remedies available upon default to Lender at law or in equity
as pledgee under Section 1.4 to apply any sums then deposited in the Escrow Fund and any other
sums held in escrow or otherwise by Lender in accordance with the terms of any of the Loan
Documents to the payment of the following items in any order in its sole discretion: (i) Taxes and
Other Charges; (ii) Insurance Premiums; (iii) interest on the unpaid principal balance of the Note;
(iv)amortization of the unpaid principal balance of the Note;and(v)all other sums payable pursuant
to any of the Loan Documents, including,without limitation,advances made by Lender pursuant to
the terms of this Security Instrument;
(k) surrender the Policies maintained pursuant to Article 3, collect the unearned Insurance
Premiums and apply such sums as a credit on the Debt in such priority and proportion as Lender in
its discretion shall deem proper, and in connection therewith,Borrower hereby appoints Lender as
agent and attorney-in-fact (which is coupled with an interest and is therefore irrevocable) for
Borrower to collect any unearned Insurance Premiums;
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(1) apply the undisbursed balance of any Net Proceeds or Restoration Deficiency deposit,
together with interest thereon, to the payment of the Debt in such order,priority and proportions as
Lender shall deem to be appropriate in its discretion;
(m) prohibit Borrower and anyone claiming for or through Borrower from making use of or
withdrawing any sums from any lockbox, escrow or similar account;
(n) exercise all rights and remedies under any Causes of Action,whether before or after any sale
of the Property by foreclosure,power of sale, or otherwise and apply the proceeds of any recovery
to the Debt in accordance with Section 11.2 or to any deficiency under this Security Instrument; or
(o) pursue such other remedies as Lender may have under applicable state or federal law.
In the event of a sale,by foreclosure,power of sale,or otherwise,of less than all of the Property,this Security
Instrument shall continue as a lien and security interest on the remaining portion of the Property unimpaired
and without loss of priority. Notwithstanding the provisions of this Section 11.1 to the contrary,if any Event
of Default as described in clause(i)or(ii)of Subsection 10.1(f) shall occur, the entire unpaid Debt shall be
automatically due and payable,without any further notice,demand or other action by Lender.
Section 11.2 Application of Proceeds. The purchase money,proceeds and avails of any disposition
of the Property,or any part thereof,or any other sums collected by Lender pursuant to the Loan Documents,
may be applied by Lender to the payment of the Debt in such priority and proportions as Lender in its
discretion shall deem proper.
Section 11.3 Right to Cure Defaults. Upon the occurrence of any Event of Default, Lender may,
but without any obligation to do so and without notice to or demand on Borrower and without releasing
Borrower from any obligation hereunder,make or do the same in such manner and to such extent as Lender
may deem necessary to protect the security hereof. Lender or Trustee is authorized to enter upon the Property
for such purposes,or appear in,defend,or bring any action or proceeding to protect its interest in the Property
or to foreclose this Security Instrument or collect the Debt. The cost and expense of any cure hereunder
(including reasonable legal fees to the extent permitted by law),with interest as provided in this Section 11.3,
shall constitute a portion of the Debt and shall be due and payable to Lender upon demand. All such costs
and expenses incurred by Lender or Trustee in remedying such Event of Default or such failed payment or
act or in appearing in,defending,or bringing any such action or proceeding shall bear interest at the Default
Rate(as defined in the Note,"Default Rate"),for the period after notice from Lender that such cost or expense
was incurred to the date of payment to Lender. All such costs and expenses incurred by Lender together with
interest thereon calculated at the Default Rate shall be deemed to constitute a portion of the Debt and be
secured by this Security Instrument and the other Loan Documents and shall be immediately due and payable
upon demand by Lender therefor.
Section 11.4 Actions and Proceedings. Lender or Trustee has the right to appear in and defend any
action or proceeding brought with respect to the Property,and after the occurrence and during the continuance
of an Event of Default, to bring any action or proceeding, in the name and on behalf of Borrower, which
Lender, in its discretion,decides should be brought to protect its interest in the Property.
Section 11.5 Recovery of Sums Required to Be Paid. Lender shall have the right from time to time
to take action to recover any sum or sums which constitute a part of the Debt as the same become due,
without regard to whether or not the balance of the Debt shall be due, and without prejudice to the right of
Lender or Trustee thereafter to bring an action of foreclosure,or any other action,for a default or defaults by
Borrower existing at the time such earlier action was commenced.
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Section 11.6 Examination of Books and Records. Lender,its agents,accountants and attorneys shall
have the right upon prior written notice(unless an Event of Default exists, in which case no notice shall be
necessary), to examine and audit, during reasonable business hours, the records, books, management and
other papers of Borrower and its affiliates or of any Guarantor which pertain to their financial condition or
the income, expenses and operation of the Property, at the Property or at any office regularly maintained by •
Borrower,its affiliates or any Guarantor where the books and records are located. Lender and its agents shall
have the right upon notice to make copies and extracts from the foregoing records and other papers.
Section 11.7 Other Rights, etc.
(a) The failure of Lender or Trustee to insist upon strict performance of any term hereof shall
not be deemed to be a waiver of any term of this Security Instrument. Borrower shall not be relieved
of Borrower's obligations hereunder by reason of(i)the failure of Lender or Trustee to comply with
any request of Borrower or any Guarantor to take any action to foreclose this Security Instrument or
otherwise enforce any of the provisions of the Loan Documents, (ii) the release, regardless of
consideration, of the whole or any part of the Property, or of any Person liable for the Debt or any
portion thereof, or (iii) any agreement or stipulation by Lender extending the time of payment,
changing the rate of interest, or otherwise modifying or supplementing the terms of the Loan
Documents.
(b) It is agreed that the risk of loss or damage to the Property is on Borrower, and Lender shall
have no liability whatsoever for decline in value of the Property,for failure to maintain the Policies,
or for failure to determine whether insurance in force is adequate as to the amount of risks
insured. Possession by Lender shall not be deemed an election of judicial relief, if any such
possession is requested or obtained, with respect to any Property or collateral not in Lender's
possession.
(c) Lender may resort for the payment of the Debt to any other security held by Lender in such
order and manner as Lender, in its discretion, may elect. Lender or Trustee may take action to
recover the Debt,or any portion thereof, or to enforce any covenant hereof without prejudice to the
right of Lender or Trustee thereafter to foreclose this Security Instrument. The rights of Lender or
Trustee under this Security Instrument shall be separate, distinct and cumulative and none shall be
given effect to the exclusion of the others. No act of Lender or Trustee shall be construed as an
election to proceed under any one provision herein to the exclusion of any other provision. Neither
Lender nor Trustee shall be limited exclusively to the rights and remedies herein stated but shall be
entitled to every right and remedy now or hereafter afforded at law or in equity. •
Section 11.8 Right to Release Any Portion of the Property. Lender may release any portion of the
Property for such consideration as Lender may require without, as to the remainder of the Property, in any
way impairing or affecting the lien or priority of this Security Instrument, or improving the position of any
subordinate lienholder with respect thereto,except to the extent that the obligations hereunder shall have been
reduced by the actual monetary consideration, if any, received by Lender for such release, and may accept
by assignment,pledge or otherwise any other property in place thereof as Lender may require without being
accountable for so doing to any other lienholder. This Security Instrument shall continue as a lien and
security interest in the remaining portion of the Property.
Section 11.9 Violations of Law. If the Property is not in compliance with Applicable Laws,Lender
may impose additional requirements upon Borrower in connection herewith including, without limitation,
monetary reserves or financial equivalents.
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Section 11.10 Right of Entry. Lender and its agents shall have the right to enter and inspect the
Property at all reasonable times.
Section 11.11 Subrogation. If any or all of the proceeds of the Note have been used to extinguish,
extend or renew any indebtedness heretofore existing against the Property,then,to the extent of the funds so
used, Lender shall be subrogated to all of the rights, claims, liens, titles, and interests existing against the
Property heretofore held by, or in favor of, the holder of such indebtedness and such former rights, claims, ,
liens, titles, and interests, if any, are not waived but rather are continued in full force and effect in favor of
Lender and are merged with the lien and security interest created herein as cumulative security for the
repayment of the Debt,the performance and discharge of Borrower's obligations under the Loan Documents
and the performance and discharge of the Other Obligations.
Section 11.12 Failure to Provide Accurate Information. In the event that Borrower or Guarantor
or Affiliated Manager(a)fails to timely provide any such reports,information, statements or other materials
within five(5)days of Lender's request,or(b)provides Lender with any such reports,information,statements
or other materials which are inaccurate or false in any material respect, or (c) fails to permit Lender or its
agents to inspect its books and records within five(5)days of Lender's request,then for so long as each such
occurrence described in the foregoing clauses(a)through(c)exists and in addition to Lender's other remedies
under the Loan Documents,any such event shall be deemed an Event of Default hereunder.
Article 12 -Environmental Hazards
Section 12.1 Environmental Representations and Warranties. Borrower represents and warrants, 1
based upon an Environmental Report of the Property and information that Borrower knows: (a)there are no
Hazardous Materials or underground storage tanks in, on, or under the Property, except those that are both
(i) in compliance with Environmental Laws and with permits issued pursuant thereto (if such permits are
required), if any, and(ii) either(A)in amounts not in excess of that necessary to operate the Property or(B)
fully disclosed to and approved by Lender in writing pursuant to an Environmental Report; (b)there are no
past,present or threatened Releases of Hazardous Materials in violation of any Environmental Law and which
would require remediation by a governmental authority in,on,under or from the Property except as described
in the Environmental Report; (c) there is no threat of any Release of Hazardous Materials migrating to the
Property except as described in the Environmental Report;(d)there is no past or present non-compliance with
Environmental Laws, or with permits issued pursuant thereto, in connection with the Property except as
described in the Environmental Report; (e)Borrower does not know of,and has not received,any written or
oral notice or other communication from any Person relating to Hazardous Materials in, on, under or from
the Property;and(f)Borrower has truthfully and fully provided to Lender,in writing,any and all information
relating to environmental conditions in, on,under or from the Property known to Borrower or contained in ,
Borrower's files and records, including but not limited to any reports relating to Hazardous Materials in, on,
under or migrating to or from the Property and/or to the environmental condition of the Property.
Section 12.2 Environmental Covenants. Borrower covenants and agrees that so long as Borrower
owns, manages, is in possession of, or otherwise controls the operation of the Property: (a) all uses and
operations on or of the Property, whether by Borrower or any other Person, shall be in compliance with all
Environmental Laws and permits issued pursuant thereto; (b) there shall be no Releases of Hazardous
Materials in, on, under or from the Property; (c) there shall be no Hazardous Materials in, on, or under the
Property, except those that are both(i)in compliance with all Environmental Laws and with permits issued
pursuant thereto, if and to the extent required, and (ii) (A) in amounts not in excess of that necessary to
operate the Property or(B)fully disclosed to and approved by Lender in writing;(d)Borrower shall keep the
Property free and clear of all Environmental Liens;(e)Borrower shall,at its sole cost and expense,fully and
expeditiously cooperate in all activities pursuant to Section 12.4 below,including but not limited to providing
all relevant information and making knowledgeable persons available for interviews; (f)Borrower shall, at
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its sole cost and expense,perform any environmental site assessment or other investigation of environmental
conditions in connection with the Property, pursuant to any reasonable written request of Lender, upon
Lender's reasonable belief that the Property is not in full compliance with all Environmental Laws,and share
with Lender the reports and other results thereof,and Lender and other Indemnified Parties shall be entitled
to rely on such reports and other results thereof;(g)Borrower shall,at its sole cost and expense,comply with
all reasonable written requests of Lender to(i)reasonably effectuate remediation of any Hazardous Materials
in,on,under or from the Property and(ii)comply with any Environmental Law;(h)Borrower shall not allow
any tenant or other user of the Property to violate any Environmental Law; and (i) Borrower shall
immediately notify Lender in writing after it has become aware of(A)any presence or Release or threatened
Release of Hazardous Materials in, on, under, from or migrating towards the Property; (B) any
non-compliance with any Environmental Laws related in any way to the Property;(C)any actual or potential
Environmental Lien against the Property; (D) any required or proposed remediation of environmental
conditions relating to the Property; and (E) any written or oral notice or other communication of which
Borrower becomes aware from any source whatsoever(including but not limited to a governmental entity)
relating in any way to Hazardous Materials. Any failure of Borrower to perform its obligations pursuant to
this Section 12.2 shall constitute bad faith waste with respect to the Property.
Section 12.3 Lender's Rights. Lender and any other Person designated by Lender, including but
not limited to any representative of a governmental entity,and any environmental consultant,and any receiver
appointed by any court of competent jurisdiction, shall have the right,but not the obligation, to enter upon
the Property at all reasonable times to assess any and all aspects of the environmental condition of the
Property and its use,including but not limited to conducting any environmental assessment or audit(the scope
of which shall be determined in Lender's sole discretion) and taking samples of soil, groundwater or other
water, air, or building materials, and conducting other invasive testing. Borrower shall cooperate with and
provide access to Lender and any such person or entity designated by Lender. Such audit shall be performed
in a manner so as to minimize interference with the conduct of business at the Property. If such audit
discloses that a violation of or a liability under any Environmental Law exists or if such audit was required
or prescribed by law, regulation or governmental or quasi-governmental authority, Borrower shall pay all
costs and expenses incurred in connection with such audit; otherwise, the costs and expenses of such audit
shall,notwithstanding anything to the contrary set forth in this Section,be paid by Lender.
Section 12.4 Operations and Maintenance Programs. If recommended by the Environmental Report
or any other environmental assessment or audit of the Property, Borrower shall establish and comply with
an operations and maintenance program with respect to the Property, in form and substance reasonably
acceptable to Lender, prepared by an environmental consultant reasonably acceptable to Lender, which
program shall address any asbestos-containing material or lead based paint that may now or in the future be
detected at or on the Property. Without limiting the generality of the preceding sentence,Lender may require
(a)periodic notices or reports to Lender in form,substance and at such intervals as Lender may specify, (b)
an amendment to such operations and maintenance program to address changing circumstances,laws or other
matters, (c) at Borrower's sole expense, supplemental examination of the Property by consultants specified
by Lender,(d)access to the Property by Lender,its agents or servicer,to review and assess the environmental
condition of the Property and Borrower's compliance with any operations and maintenance program,and(e)
variation of the operations and maintenance program in response to the reports provided by any such
consultants.
Section 12.5 Environmental Definitions. "Environmental Law" means any present and future
federal,state and local laws,statutes,ordinances,rules,regulations,standards,policies and other government
directives or requirements, as well as common law, including but not limited to the Comprehensive
Environmental Response,Compensation and Liability Act and the Resource Conservation and Recovery Act,
that apply to Borrower or the Property and relate to Hazardous Materials or protection of human health or
the environment. "Environmental Liens"means all Liens and other encumbrances imposed pursuant to any
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Environmental Law, whether due to any act or omission of Borrower or any other Person. "Environmental
Report"means the written reports resulting from the environmental site assessments of the Property delivered
to Lender. "Hazardous Materials"shall mean petroleum and petroleum products and compounds containing
them, including gasoline, diesel fuel and oil; explosives, flammable materials; radioactive materials;
polychlorinated biphenyls ("PCBs") and compounds containing them; lead and lead-based paint; asbestos
or asbestos-containing materials in any form that is or could become friable;underground or above-ground
storage tanks, whether empty or containing any substance; any substance the presence of which on the
Property is prohibited by any federal, state or local authority; any substance that requires special handling;
and any other material or substance now or in the future defined as a "hazardous substance," "hazardous
material","hazardous waste","toxic substance","toxic pollutant","contaminant", or"pollutant"within the
meaning of any Enviromnental Law. "Release"of any Hazardous Materials includes but is not limited to any
release, deposit, discharge, emission, leaking, spilling, seeping, migrating, injecting, pumping, pouring,
emptying,escaping, dumping,disposing or other movement of Hazardous Materials.
Article 13 -Indemnification
Section 13.1 General Indemnification. BORROWER SHALL, AT ITS SOLE COST AND
EXPENSE, PROTECT, DEFEND, INDEMNIFY, RELEASE AND HOLD HARMLESS THE
INDEMNIFIED PARTIES FROM AND AGAINST ANY AND ALL LOSSES IMPOSED UPON OR
INCURRED BY OR ASSERTED AGAINST ANY INDEMNIFIED PARTIES AND DIRECTLY OR
INDIRECTLY ARISING OUT OF OR IN ANY WAY RELATING TO ANY ONE OR MORE OF
THE FOLLOWING: (A)ANY ACCIDENT,INJURY TO OR DEATH OF PERSONS OR LOSS OF
OR DAMAGE TO PROPERTY OCCURRING IN, ON OR ABOUT THE PROPERTY OR ANY
PART THEREOF OR ON THE ADJOINING SIDEWALKS,CURBS,ADJACENT PROPERTY OR
ADJACENT PARKING AREAS,STREETS OR WAYS;(B)ANY USE,NONUSE OR CONDITION
IN, ON OR ABOUT THE PROPERTY OR ANY PART THEREOF OR ON THE ADJOINING
SIDEWALKS,CURBS,ADJACENT PROPERTY OR ADJACENT PARKING AREAS,STREETS
OR WAYS; (C)PERFORMANCE OF ANY LABOR OR SERVICES OR THE FURNISHING OF
ANY MATERIALS OR OTHER PROPERTY IN RESPECT OF THE PROPERTY OR ANY PART
THEREOF; (D) ANY FAILURE OF THE PROPERTY TO BE IN COMPLIANCE WITH ANY
APPLICABLE LAWS; (E) ANY AND ALL CLAIMS AND DEMANDS WHATSOEVER WHICH
MAY BE ASSERTED AGAINST LENDER BY REASON OF ANY ALLEGED OBLIGATIONS OR
UNDERTAKINGS ON ITS PART TO PERFORM OR DISCHARGE ANY OF THE TERMS,
COVENANTS, OR AGREEMENTS CONTAINED 1N ANY LEASE; OR(F) THE PAYMENT OF
ANY COMMISSION,CHARGE OR BROKERAGE FEE TO ANYONE WHICH MAY BE PAYABLE
IN CONNECTION WITH THE FUNDING OF THE LOAN EVIDENCED BY THE NOTE AND
SECURED BY THIS SECURITY INSTRUMENT. ANY AMOUNTS PAYABLE TO LENDER BY •
REASON OF THE APPLICATION OF THIS SECTION 13.1 SHALL BECOME IMMEDIATELY
DUE AND PAYABLE AND SHALL BEAR INTEREST AT THE DEFAULT RATE FROM THE •
DATE LOSS OR DAMAGE IS SUSTAINED BY LENDER UNTIL PAID. THE TERM"LOSSES"
SHALL MEAN ANY AND ALL CLAIMS, SUITS, LIABILITIES (INCLUDING, WITHOUT
LIMITATION, STRICT LIABILITIES), ACTIONS, PROCEEDINGS, OBLIGATIONS, DEBTS,
DAMAGES,LOSSES,COSTS,EXPENSES,FINES,PENALTIES,CHARGES,FEES,JUDGMENTS,
AWARDS, AMOUNTS PAID IN SETTLEMENT OF WHATEVER KIND OR NATURE
(INCLUDING BUT NOT LIMITED TO LEGAL FEES AND OTHER COSTS OF DEFENSE). THE
TERM "INDEMNIFIED PARTIES" SHALL MEAN (A)LENDER, (B) ANY PRIOR OWNER OR
HOLDER OF THE NOTE,(C)ANY SERVICER OR PRIOR SERVICER OF THE LOAN,(D)ANY
INVESTOR OR ANY PRIOR INVESTOR IN ANY PARTICIPATIONS OR SECURITIES,(E)ANY
TRUSTEES,CUSTODIANS OR OTHER FIDUCIARIES WHO HOLD OR WHO HAVE HELD A
FULL OR PARTIAL INTEREST IN THE LOAN FOR THE BENEFIT OF ANY INVESTOR OR •
OTHER THIRD PARTY, (F) ANY RECEIVER OR OTHER FIDUCIARY APPOINTED IN A
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FORECLOSURE OR OTHER CREDITORS RIGHTS LAWS PROCEEDING,(G)ANY OFFICERS,
DIRECTORS,SHAREHOLDERS,PARTNERS,MEMBERS,EMPLOYEES,AGENTS,SERVANTS,
REPRESENTATIVES,CONTRACTORS,SUBCONTRACTORS,AFFILIATES OR SUBSIDIARIES
OF ANY AND ALL OF THE FOREGOING,AND(H)THE HEIRS,LEGAL REPRESENTATIVES,
SUCCESSORS AND ASSIGNS OF ANY AND ALL OF THE FOREGOING (INCLUDING,
WITHOUT LIMITATION, ANY SUCCESSORS BY MERGER, CONSOLIDATION OR
ACQUISITION OF ALL OR A SUBSTANTIAL PORTION OF THE INDEMNIFIED PARTIES'
ASSETS AND BUSINESS),IN ALL CASES WHETHER DURING THE TERM OF THE LOAN OR
AS PART OF OR FOLLOWING A FORECLOSURE OF THE LOAN.
Section 13.2 Mortgage and/or Intangible Tax. Borrower shall,at its sole cost and expense,protect,
defend, indemnify,release and hold harmless the Indemnified Parties from and against any and all Losses
imposed upon or incurred by or asserted against any Indemnified Parties and directly or indirectly arising out
of or in any way relating to any tax on the making and/or recording of any of the Loan Documents.
Section 13.3 Duty to Defend; Legal Fees and Other Fees and Expenses. Upon written request by
any Indemnified Party,Borrower shall defend such Indemnified Party(if requested by any Indemnified Party,
in the name of the Indemnified Party) by attorneys and other professionals approved by the Indemnified
Parties. Notwithstanding the foregoing, any Indemnified Parties may, in their sole discretion, engage their
own attorneys and other professionals to defend or assist them,and,at the option of Indemnified Parties,their
attorneys shall control the resolution of any claim or proceeding. Upon demand, Borrower shall pay or, in
the sole discretion of the Indemnified Parties, reimburse, the Indemnified Parties for the payment of
reasonable fees and disbursements of attorneys,engineers,environmental consultants,laboratories and other
professionals in connection therewith.
Section 13.4 Environmental Indemnity. BORROWER SHALL, AT ITS SOLE COST AND
EXPENSE, PROTECT, DEFEND, INDEMNIFY, RELEASE AND HOLD HARMLESS THE
INDEMNIFIED PARTIES FROM AND AGAINST ANY AND ALL LOSSES AND COSTS OF
REMEDIATION (WHETHER OR NOT PERFORMED VOLUNTARILY), ENGINEERS° FEES,
ENVIRONMENTAL CONSULTANTS' FEES,AND COSTS OF INVESTIGATION(INCLUDING,
BUT NOT LIMITED TO SAMPLING, TESTING AND ANALYSIS OF SOIL, WATER, AIR,
BUILDING MATERIALS AND OTHER MATERIALS AND SUBSTANCES WHETHER SOLID,
LIQUID OR GAS) IMPOSED UPON OR INCURRED BY OR ASSERTED AGAINST ANY
INDEMNIFIED PARTIES,AND ARISING OUT OF OR IN ANY WAY RELATING TO ANY ONE
OR MORE OF THE FOLLOWING EVEN IF CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS
(WHETHER SOLE OR CONCURRENT)OF ANY ONE OR MORE OF THE INDEMNIFIED PARTIES, I
UNLESS CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY
INDEMNIFIED PARTY: (A) ANY PRESENCE OF ANY HAZARDOUS SUBSTANCES IN, ON,
ABOVE OR UNDER THE PROPERTY;(B)ANY PAST,PRESENT OR THREATENED RELEASE
OF HAZARDOUS SUBSTANCES IN,ON,ABOVE,UNDER OR FROM THE PROPERTY;(C)ANY
ACTIVITY BY BORROWER,ANY PERSON AFFILIATED WITH BORROWER OR TENANT OR
OTHER USERS OF THE PROPERTY IN CONNECTION WITH ANY ACTUAL,PROPOSED OR
THREATENED USE, TREATMENT, STORAGE, HOLDING, EXISTENCE, DISPOSITION OR
OTHER RELEASE, GENERATION, PRODUCTION, MANUFACTURING, PROCESSING,
REFINING, CONTROL,MANAGEMENT,ABATEMENT,REMOVAL,HANDLING,TRANSFER
OR TRANSPORTATION TO OR FROM THE PROPERTY OF ANY HAZARDOUS SUBSTANCES
AT ANY TIME LOCATED IN, UNDER,ON OR ABOVE THE PROPERTY; (D)ANY ACTIVITY
BY BORROWER, ANY PERSON AFFILIATED WITH BORROWER OR TENANT OR OTHER
USERS OF THE PROPERTY IN CONNECTION WITH ANY ACTUAL OR PROPOSED
REMEDIATION OF ANY HAZARDOUS SUBSTANCES AT ANY TIME LOCATED IN, UNDER,
ON OR ABOVE THE PROPERTY,WHETHER OR NOT SUCH REMEDIATION IS VOLUNTARY
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OR PURSUANT TO COURT OR ADMINISTRATIVE ORDER,INCLUDING,BUT NOT LIMITED
TO ANY REMOVAL,REMEDIAL OR CORRECTIVE ACTION; (E)ANY PAST,PRESENT OR
THREATENED VIOLATIONS OF ANY ENVIRONMENTAL LAWS (OR PERMITS ISSUED
PURSUANT TO ANY ENVIRONMENTAL LAW)IN CONNECTION WITH THE PROPERTY OR ,!
OPERATIONS THEREON, INCLUDING, BUT NOT LIMITED TO ANY FAILURE BY
BORROWER,ANY PERSON AFFILIATED WITH BORROWER OR TENANT OR OTHER USERS
OF THE PROPERTY TO COMPLY WITH ANY ORDER OF ANY GOVERNMENTAL '
AUTHORITY IN CONNECTION WITH ENVIRONMENTAL LAWS; (F) THE IMPOSITION,
RECORDING OR FILING OF ANY ENVIRONMENTAL LIEN ENCUMBERING THE PROPERTY;
(G)ANY ADMINISTRATIVE PROCESSES OR PROCEEDINGS OR JUDICIAL PROCEEDINGS
IN ANY WAY CONNECTED WITH ANY MATTER ADDRESSED IN ARTICLE 12 AND THIS
SECTION 13.4;(H)ANY PAST,PRESENT OR THREATENED INJURY TO,DESTRUCTION OF
OR LOSS OF NATURAL RESOURCES IN ANY WAY CONNECTED WITH THE PROPERTY,
INCLUDING,BUT NOT LIMITED TO COSTS TO INVESTIGATE AND ASSESS SUCH INJURY,
DESTRUCTION OR LOSS; (I) ANY ACTS OF BORROWER OR OTHER USERS OF THE
PROPERTY IN ARRANGING FOR DISPOSAL OR TREATMENT, OR ARRANGING WITH A
TRANSPORTER FOR TRANSPORT FOR DISPOSAL OR TREATMENT, OF HAZARDOUS
SUBSTANCES OWNED OR POSSESSED BY SUCH BORROWER OR OTHER USERS,AT ANY
FACILITY OR INCINERATION VESSEL OWNED OR OPERATED BY ANOTHER PERSON AND
CONTAINING SUCH OR SIMILAR HAZARDOUS SUBSTANCE;(J)ANY ACTS OF BORROWER '
OR OTHER USERS OF THE PROPERTY,IN ACCEPTING ANY HAZARDOUS SUBSTANCES
FOR TRANSPORT TO DISPOSAL OR TREATMENT FACILITIES,INCINERATION VESSELS 1
OR SITES SELECTED BY BORROWER OR SUCH OTHER USERS,FROM WHICH THERE IS
A RELEASE, OR A THREATENED RELEASE OF ANY HAZARDOUS SUBSTANCE WHICH
CAUSES THE INCURRENCE OF COSTS FOR REMEDIATION;(K)ANY PERSONAL INJURY,
WRONGFUL DEATH, OR PROPERTY DAMAGE CAUSED BY HAZARDOUS SUBSTANCES
ARISING UNDER ANY STATUTORY OR COMMON LAW OR TORT LAW THEORY,
INCLUDING,BUT NOT LIMITED TO DAMAGES ASSESSED FOR THE MAINTENANCE OF A
PRIVATE OR PUBLIC NUISANCE OR FOR THE CONDUCTING OF AN ABNORMALLY
DANGEROUS ACTIVITY ON OR NEAR THE PROPERTY; AND (L) ANY INTENTIONAL
MISREPRESENTATION IN ANY REPRESENTATION OR WARRANTY OR MATERIAL
BREACH OR FAILURE TO PERFORM ANY COVENANTS OR OTHER OBLIGATIONS
PURSUANT TO ARTICLE 12.
Article 14 -Waivers
1
Section 14.1 Waiver of Counterclaim. Borrower hereby waives the right to assert a counterclaim, '
other than a mandatory or compulsory counterclaim,in any action or proceeding brought against it by Lender
arising out of or in any way connected with any of the Loan Documents, or the Obligations. To the
maximum extent permitted by applicable law,Borrower hereby waive all rights,remedies,claims and
defenses based upon or related to N.C.G.S.45-21.36 AND 45-21.38.
Section 14.2 Marshalling and Other Matters. Borrower hereby waives, to the extent permitted by
law, the benefit of all Applicable Laws now or hereafter in force regarding appraisement, valuation, stay,
extension,reinstatement and redemption and all rights of marshalling in the event of any sale hereunder of
the Property or any part thereof or any interest therein. Further,Borrower hereby expressly waives any and
all rights of redemption from sale under any order or decree of foreclosure of this Security Instrument on
behalf of Borrower, and on behalf of each and every person acquiring any interest in or title to the Property
subsequent to the date of this Security Instrument and on behalf of all persons to the extent permitted by
Applicable Law.
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Section 14.3 Waiver of Notice. Borrower shall not be entitled to any notices of any nature
whatsoever from Lender or Trustee except with respect to matters for which this Security Instrument
specifically and expressly provides for the giving of notice by Lender or Trustee to Borrower and except with
respect to matters for which Lender or Trustee is required by Applicable Law to give notice, and Borrower
hereby expressly waives the right to receive any notice from Lender or Trustee with respect to any matter for
which this Security Instrument does not specifically and expressly provide for the giving of notice by Lender
or Trustee to Borrower.
Section 14.4 Waiver of Statute of Limitations. BORROWER HEREBY EXPRESSLY WAIVES
AND RELEASES TO THE FULLEST EXTENT PERMITTED BY LAW, THE PLEADING OF ANY
STATUTE OF LIMITATIONS AS A DEFENSE TO PAYMENT OF THE DEBT OR PERFORMANCE OF
ITS OTHER OBLIGATIONS.
Section 14.5 Sole Discretion of Lender. Wherever pursuant to this Security Instrument(a)Lender
exercises any right given to it to approve or disapprove, (b)any arrangement or term is to be satisfactory to
Lender, or (c) any other decision or determination is to be made by Lender, the decision 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 in the sole discretion of Lender, except as may be otherwise
expressly and specifically provided herein.
Section 14.6 Waiver of Trial by Jury. BORROWER AND LENDER, BY ACCEPTANCE OF
THIS SECURITY INSTRUMENT, HEREBY WAIVE, 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, THE LOAN DOCUMENTS OR ANY ACTS OR
OMISSIONS OF LENDER OR BORROWER.
Section 14.7 Waiver of Foreclosure Defense. Borrower hereby waives any defense Borrower might
assert or have by reason of Lender's failure to make any tenant or lessee of the Property a party defendant
in any foreclosure proceeding or action instituted by Lender.
Article 15-Exculpation
Section 15.1 Exculpation. The exculpatory provisions of the Note,if any,are hereby incorporated
by reference to the fullest extent as if the text of such Article were set forth in its entirety herein.
Article 16-Notices
Section 16.1 Notices. Except as otherwise required by Applicable Law in the case of a non judicial
foreclosure, all notices or other written communications hereunder shall be deemed to have been properly
given if delivered in compliance with the terms of the Loan Agreement.
Article 17 -Choice of Law
Section 17.1 Choice of Law. The Lender is a Texas state banking association with its principal
place of business in Texas being located in Harris County,Texas. Borrower is a Texas corporation with its
principal place of business being located in Harris County, Texas. The primary collateral(the"Collateral")
for the Loan is the property located in certain ROWAN County, North Carolina. Although the laws of the
State of North Carolina necessarily govern the real and personal property aspects and foreclosure aspect of
the Collateral, it is the intention of the undersigned parties,to the extent allowed by law,to elect the laws of
Texas as the choice of law to be used to govern the Loan Documents, inclusive of the Guaranty. Except for,
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the necessary substantive and procedural laws governing the granting of the lien and security interests
in this Security Instrument, the foreclosure of the liens and exercise of other remedies against the
Property,Borrower and Lender agree that the choice of law in connection with the Loan shall be the
laws of the State of Texas.
(a) The undersigned parties understand that a substantial part of the Borrower's obligations
relating to the Loan transaction,such as making Loan payments,is performable in Texas. The Loan
transaction bears a reasonable relation to Texas. All or a substantial part of the negotiations relating
to the Loan transaction and the signing of the Loan Documents occurred in Texas.
(b) Nothing herein shall, with respect to the Property, cause Texas law to apply concerning the
transfer or creation of an interest in the Property for security purposes or otherwise, the nature of an
interest in the Property that is transferred or created in connection with the Loan transaction, the
method for foreclosure of a lien on the Property,the nature of an interest in the Property that results
from foreclosure,or the manner and effect of recording or failing to record evidence of a transaction
that transfers or creates an interest in the Property.
(c) THIS AGREEMENT AND THE LOAN DOCUMENTS HAVE BEEN PREPARED,
ARE DELIVERED, AND ARE INTENDED TO BE PERFORMED IN THE STATE OF
TEXAS,AND EXCEPT AS SET FORTH HEREIN OR AS REQUIRED BY THE LAWS OF
THE STATE OF NORTH CAROLINA,THE SUBSTANTIVE LAWS OF THE STATE OF
TEXAS AND THE APPLICABLE LAWS OF THE UNITED STATES OF AMERICA SHALL
GOVERN THE VALIDITY,CONSTRUCTION,ENFORCEMENT AND INTERPRETATION
OF ALL OF THE LOAN DOCUMENTS.
(d) As a further inducement to Lender to make the Loan and in consideration thereof,Borrower
further covenants and agrees(a)Borrower will maintain a place of business and an agent for service
of process in the State of Texas and give prompt notice to Lender of the name and address of the
address of such place of business and of any new agent appointed by it,as appropriate,(b)the failure
of Borrower's agent for service of process to give it notice of any service of process will not impair
or affect the validity of such service or of any judgment based thereon, (c) if,despite the foregoing,
there is for any reason no agent for service of process of Borrower available to be served, and if
Borrower at that time has no place of business in the State of Texas then Borrower irrevocably
consents to service of process by registered or certified mail,postage prepaid,to it at its address given
in or pursuant to the first paragraph hereof, Borrower hereby waiving personal service thereof, (d)
that within thirty days after such mailing,Borrower so served shall appear or answer to any summons
and complaint or other process and should Borrower so served fail to appear or answer within said
thirty-day period,said Borrower shall be deemed in default and judgment may be entered by Lender
against the said party for the amount as demanded in any summons and complaint or other process
so served,(e)with respect to any claim or action arising hereunder,Borrower (i)irrevocably submits
to the nonexclusive jurisdiction of the courts of Harris County,Texas District Courts and said United
States District Courts in Houston, Texas, and appellate courts from any thereof and irrevocably
waives any other venue to which Borrower might be entitled by nature of domicile, habitual
residence or otherwise, (ii) irrevocably waives any objection which it may have at any time to the
laying on venue of any suit,action or proceeding arising out of or relating to the Loan brought in any
such court, and (iii) irrevocably waives any claim that any such suit, action or proceeding brought
in any such court has been brought in an inconvenient forum,and(f)nothing in the Loan Documents
will be deemed to preclude Lender from bringing an action or proceeding with respect hereto in any
other jurisdiction.
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Section 17.2 Provisions Subject to Law. All rights,powers and remedies provided in this Security
Instrument may be exercised only to the extent that the exercise thereof does not violate any Applicable Law
and are intended to be limited to the extent necessary so that they will not render this Security Instrument
invalid,unenforceable or not entitled to be recorded,registered or filed under any Applicable Law.
Article 18- Secondary Market
Section 18.1 Transfer of Loan. Lender may, at any time, sell, transfer or assign the Loan
Documents; provided that so long as no Event of Default has occurred and is continuing, Lender shall not,
without the prior approval of Borrower, sell,transfer, or assign the Loan Documents to any party other than
a commercial bank. Furthermore,Lender may grant participations in the Loan(the"Participations")so long
as Lender remains the administrative agent of the Loan, and Lender may issue mortgage pass-through
certificates or other securities evidencing a beneficial interest in a rated or unrated public offering or private
placement(the"Securities").
Section 18.2 Sale or Delegation of Servicing. Lender may,at any time,transfer any and all of the
servicing rights with respect to the Loan,or delegate any or all of its responsibilities as Lender under the Loan ,
Documents.
Section 18.3 Dissemination of Information. Lender may forward to each purchaser, transferee,
assignee,or servicer of,and each participant,or investor in,the Loan;or any Participations and/or Securities
or any of their respective successors(collectively,the"Investor")or any Participations and/or Securities,each
prospective Investor, and any organization maintaining databases on the underwriting and performance of
commercial mortgage loans, all documents and information which Lender now has or may hereafter acquire
relating to the Debt and to Borrower,any Guarantor and the Property,including financial statements,whether
furnished by Borrower,any Guarantor,or otherwise,as Lender determines necessary or desirable. Borrower
irrevocably waives any and all rights it may have under Applicable Laws to prohibit such disclosure,
including but not limited to any right of privacy.
Section 18.4 Cooperation. Borrower and any Guarantor agree to cooperate with Lender in
connection with any transfer made or any Participation and/or Securities created pursuant to this Section,
including,without limitation, the delivery of an estoppel certificate required in accordance with Subsection
7.4(c)and such other documents as may be reasonably requested by Lender. Borrower shall also furnish and
Borrower and any Guarantor consent to Lender furnishing to such Investors or such prospective Investors any
and all information concerning the Property, the Leases, the financial condition of Borrower and any
Guarantor as may be requested by Lender, any Investor,or any prospective Investor in connection with any `
sale or transfer of the Loan or any Participations or Securities.
Section 18.5 Reserves/Escrows. In the event that Participations or Securities are issued in
connection with the Loan,all funds held by Lender in escrow or pursuant to reserves in accordance with the
Loan Documents shall be deposited in"eligible accounts"at"eligible institutions"and invested in"permitted
investments"as then defined and required by the Rating Agencies.
Article 19 -Costs
Section 19.1 Performance at Borrower's Expense. Borrower acknowledges and confirms that
Lender shall impose certain administrative processing and/or commitment fees in connection with (a) the
extension,renewal,modification, amendment and termination of the Loan, (b)the release or substitution of
collateral therefor, (c)obtaining certain consents, waivers and approvals with respect to the Property, or(d)
the review of any Lease or proposed Lease or the preparation or review of any subordination,non-disturbance
agreement(the occurrence of any of the above shall be called an"Event"). Borrower further acknowledges
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and confirms that it shall be responsible for the payment of all costs of reappraisal of the Property or any part
thereof, whether required by law, regulation, Lender or any governmental or quasi-governmental
authority. Borrower hereby acknowledges and agrees to pay,immediately,with or without demand,all such
fees(as the same may be increased or decreased from time to time),and any additional fees of a similar type
or nature which may be imposed by Lender from time to time, upon the occurrence of any Event or
otherwise. Wherever it is provided for herein that Borrower pay any costs and expenses, such costs and
expenses shall include,but not be limited to, all reasonable legal fees of Lender.
Section 19.2 Legal fees for Enforcement. (a)Borrower shall pay all reasonable legal fees incurred
by Lender in connection with(i)the preparation of the Loan Documents;and(ii)the items set forth in Section
19.1 above, and (b) Borrower shall pay to Lender on demand any and all expenses, including legal fees
incurred or paid by Lender in protecting its interest in the Property or in collecting any amount payable under
the Loan Documents, or in enforcing its rights hereunder with respect to the Property, whether or not any
legal proceeding is commenced hereunder or thereunder, together with interest thereon at the Default Rate
(as defined in the Note)from the date paid or incurred by Lender until such expenses are paid by Borrower.
Article 20 -Definitions
Section 20.1 General Usage. Unless the context clearly indicates a contrary intent or unless
otherwise specifically provided herein,words used in this Security Instrument may be used interchangeably
in singular or plural form and the words"Applicable Laws"shall mean"all existing and future federal, state
and local laws, orders, ordinances, governmental rules and regulations and court orders and is expressly
deemed to include all Environmental Laws;" the word "Borrower" shall mean "each Borrower and any
subsequent owner or owners of the Property or any part thereof or any interest therein;"the words "Lease"
and"Renewal Lease"shall include any guaranty,letter of credit or other credit support with respect thereto;
the word "Lender" shall mean "Lender and any subsequent holder of the Note;" the word "Trustee" shall
mean"Trustee and any substitute Trustee of the estates,properties,powers, trusts and rights conferred upon
Trustee pursuant to this Security Instrument;"the word"Note"shall mean"the Note and any other evidence
of indebtedness secured by this Security Instrument together with all extensions, renewals, modifications,
substitutions and amendments thereof;"the word "Loan" shall mean"the Debt evidenced by the Note and
secured by the Loan Documents;"the word"Person"shall include an individual,corporation,limited liability
company,partnership,trust,unincorporated association,government,governmental authority,and any other
entity; the word "Property" shall include any portion of the Property and any interest therein; the phrase
"legal fees" shall include any and all counsel, attorney, paralegal and law clerk fees and disbursements,
including,but not limited to fees and disbursements at the pre-trial,trial and appellate levels incurred or paid
by Lender in protecting its interest in the Property, the Leases and the Rents and enforcing its rights
hereunder, whether with respect to retained firms, the reimbursement for the expenses of in-house staff or
otherwise; and the words "Loan Documents" shall include any and all extensions, renewals, substitutions,
replacements,amendments,modifications and/or restatements of any of the Loan Documents.
Section 20.2 Definitions Glossary.
Affiliated Manager(8.4) Debt(2.1)
Applicable Laws(20.1) Default Prepayment(9.3)
Availability Threshold(3.7(b)) Environmental Law(12.5)
Award(3.6) Environmental Liens(12.5)
Borrower(Caption) (20.1) Environmental Report(12.5)
Business Day(16.1) (22.7) ERISA(4.2)
Causes of Action(1.1(n)) Escrow Fund(3.5)
Control(8.4) Event of Default(10.1)
Creditors Rights Laws(10.1(f)) Event(19.1)
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Flood Insurance Acts(3.3(a)(vi)) Policy(3.3(b))
full insurable value(3.3(a)(i)) Posted Property(22.7(b))
Guarantor(10.1(e)) Prepayment Penalty(Note)
Hazardous Materials(12.5) Prohibited Transfer(8.1(a))
Improvements(1.1(c)) Property(1.1)(20.1)
Indemnified Parties(13.1) Property Jurisdiction (17.1)
Insurance Premiums(3.3(b)) Qualified Insurer(3.3)
Investor(18.3) Release(12.5)
Land (1.1(a)) Renewal Lease(3.8(a))(20.1)
Leases(1.1(f))(20.1) rental income(3.3(a)(iv))
legal fees(20.1) Rental Loss Proceeds(3.7(c))
Lender(Caption) (20.1) Rents(1.1(f))
Loan(20.1) Replacement Cost(3.3(a)(i))
Loan Documents(2.6) (20.1) Restoration(3.7(a))
Losses(13.1) Restoration Consultant(3.7(d))
Major Lease(3.8(a)) Restoration Deficiency(3.7(f))
Net Proceeds(3.7(b)) Restricted Party(8.4)
Note(20.1) Sale or Pledge(8.4)
Obligations (2.3) Securities(18.1)
Other Obligations(2.2) Security Instrument(Caption)
Other Charges(3.4(a)) special flood hazard area(7.5)
Participations(18.1) Special Purpose Entity(4.3(b))
Permitted Exceptions(5.1) Taxes(3.4(a))
permitted investments(18.5) Trustee(Caption)(20.1)
Person(20.1) UCC Collateral(1.3)
Personal Property(1.1(e)) Uniform Commercial Code(1.1(e))
Article 21 -Miscellaneous Provisions
Section 21.1 No Oral Change. This Security Instrument, and any provisions hereof, 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.
Section 21.2 Liability. If Borrower consists of more than one person,the obligations and liabilities
of each such person hereunder shall be joint and several. This Security Instrument shall be binding upon and
inure to the benefit of Borrower and Lender and their respective successors and assigns forever.
Section 21.3 Inapplicable Provisions. If any term,covenant or condition of the Note or this Security
Instrument is held to be invalid,illegal or unenforceable in any respect,the Note and this Security Instrument
shall be construed without such provision.
Section 21.4 Duplicate Originals; Counterparts. This Security Instrument may be executed in any
number of duplicate originals and each duplicate original shall be deemed to be an original. This Security
Instrument may be executed in several counterparts, each of which counterparts shall be deemed an original
instrument and all of which together shall constitute a single Security Instrument. The failure of any party
hereto to execute this Security Instrument, or any counterpart hereof, shall not relieve the other signatories
from their obligations hereunder.
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Section 21.5 Headings, etc. The headings and captions of various Articles and Sections of this
Security Instrument are for convenience of reference only and are not to be construed as defining or limiting,
in any way,the scope or intent of the provisions hereof.
Section 21.6 Number and Gender. Whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and
pronouns shall include the plural and vice versa.
Article 22 -Deed of Trust Provisions
Section 22.1 Concerning the Trustee. Trustee shall be under no duty to take any action hereunder
except as expressly required hereunder or by law,or to perform any act which would involve Trustee in any
expense or liability or to institute or defend any suit in respect hereof,unless properly indemnified to Trustee's
reasonable satisfaction. Trustee, by acceptance of this Security Instrument, covenants to perform and fulfill
the trusts herein created,being liable,however,only for gross negligence or willful misconduct, and hereby
waives any statutory fee and agrees to accept reasonable compensation, in lieu thereof, for any services
rendered by Trustee in accordance with the terms hereof. Trustee may resign at any time upon giving thirty
(30) days'notice to Borrower and to Lender. Lender may remove Trustee at any time or from time to time
and select a successor trustee or several substitute trustees in succession, and if Lender is a corporation or
other entity,such appointment shall be conclusively presumed to be executed with authority and shall be valid
without proof of action by the board of directors or any executive office of the corporation or otherwise. In
the event of the death, removal, resignation, refusal to act, or inability to act of Trustee, or in its sole
discretion for any reason whatsoever Lender may,without notice or filing and without specifying any reason
therefor and without applying to any court, select and appoint a successor trustee,by written instrument and
all powers, rights, duties and authority of Trustee, as aforesaid, shall thereupon become vested in such
successor. Such substitute trustee shall not be required to give bond for the faithful performance of the duties
of Trustee hereunder unless required by Lender. The procedure provided for in this paragraph for substitution
of Trustee shall be in addition to and not in exclusion of any other provisions for substitution, by law or
otherwise.
Section 22.2 Trustee's Fees. Borrower shall pay all reasonable costs, fees and expenses incurred
by Trustee and Trustee's agents and counsel in connection with the performance by Trustee of Trustee's duties
hereunder and all such costs,fees and expenses shall be secured by this Security Instrument.
Section 22.3 Certain Rights. With the approval of Lender, Trustee shall have the right to take any
and all of the following actions: (i)to select,employ,and advise with counsel(who may be,but need not be,
counsel for Lender) upon any matters arising hereunder, including the preparation, execution, and
interpretation of the Note, this Security Instrument or the Other Security Documents, and shall be fully
protected in relying as to legal matters on the advice of counsel, (ii)to execute any of the trusts and powers
hereof and to perform any duty other than conducting the sale hereunder either directly or through his/her
agents or attorneys,(iii)to select and employ,in and about the execution of his/her duties hereunder,suitable
accountants, engineers and other experts, agents and attorneys-in-fact, either corporate or individual, not
regularly in the employ of Trustee, and Trustee shall not be answerable for any act, default, negligence, or
misconduct of any such accountant, engineer or other expert, agent or attorney-in-fact, if selected with
reasonable area,or for any error of judgment or act done by Trustee in good faith,or be otherwise responsible
or accountable under any circumstances whatsoever,except for Trustee's gross negligence or bad faith, and
(iv)any and all other lawful action as Lender may instruct Trustee to take to protect or enforce Lender's rights
hereunder. Trustee shall not be personally liable in case of entry by Trustee, or anyone entering by virtue of
the powers herein granted to Trustee, upon the Property for debts contracted for or liability or damages
incurred in the management or operation of the Property. Trustee shall have the right to rely on any
instrument, document, or signature authorizing or supporting an action taken or proposed to be taken by
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Trustee hereunder, believed by Trustee in good faith to be genuine. Trustee shall be entitled to
reimbursement for actual expenses incurred by Trustee in the performance of Trustee's duties hereunder and
to reasonable compensation for such of Trustee's services hereunder as shall be rendered.
Section 22.4 Retention of Money. All moneys received by Trustee shall,until used or applied as
herein provided, be held in trust for the purposes for which they were received, but need not be segregated
in any manner from any other moneys(except to the extent required by applicable law) and Trustee shall be
under no liability for interest on any moneys received by Trustee hereunder.
Section 22.5 Perfection of Appointment. Should any deed,conveyance,or instrument of any nature
be required from Borrower by any Trustee or substitute trustee to more fully and certainly vest in and confirm
to the Trustee or substitute trustee such estates,rights,powers, and duties,then,upon request by the Trustee
or substitute trustee, any and all such deeds, conveyances and instruments shall be made, executed,
acknowledged, and delivered and shall be caused to be recorded and/or filed by Borrower. Lender shall at
any time have this irrevocable right to remove the Trustee herein named without notice or cause and to
appoint its successor by an instrument in writing, duly acknowledged and recorded.
Section 22.6 Succession Instruments. Any substitute trustee appointed pursuant to any of the
provisions hereof shall, without any further act, deed, or conveyance, become vested with all the estates,
properties, rights,powers, and trusts of its or his/her predecessor in the rights hereunder with like effect as
if originally named as Trustee herein;but nevertheless,upon the written request of Lender or of the substitute
trustee, the Trustee ceasing to act shall execute and deliver any instrument transferring to such substitute
trustee,upon the trusts herein expressed, all the estates,properties, rights,powers, and trusts of the Trustee
so ceasing to act, and shall duly assign, transfer and deliver any of the property and moneys held by such
Trustee to the substitute trustee so appointed in the Trustee's place.
Section 22.7 Trustee's power of sale (North Carolina). Upon the occurrence of any Event of
Default, Lender, at Lender's option, and without notice of intention to accelerate, notice of acceleration or
notice of any kind or nature whatsoever,demand or presentment,except as otherwise required by Applicable
Law, all of which are hereby expressly waived by Grantor and any and all other parties liable with respect
to the Debt or any part thereof,to the extent not prohibited by law,may declare the entire unpaid Debt(other
than interest therein which has not yet accrued)immediately due and payable, whereupon it shall be so due
and payable,and may exercise or invoke all rights and remedies granted hereunder or in any other instrument
securing payment of or relating to the Debt and all rights and remedies available at law or in equity.
Additionally,the following shall apply:
(a) In addition, upon the occurrence of any Event of Default, Lender shall have the option,
without declaring the entire Debt due, to proceed with foreclosure either through the courts or by
directing Trustee to proceed as if under a full foreclosure,conducting the sale as hereinafter provided
and as required under Applicable Law. Such sale may be made subject to the unmatured portion of '
the Note or other Debt without any effect thereon, but as to such unmatured portion of the Note or
other Debt, this Security Instrument shall remain in full force and effect just as though no sale had
been made under the provisions of this paragraph. In addition,several sales may be made hereunder
without exhausting the right of sale for any unmatured portion of the Note or other Debt,it being the
intention of the parties hereto to provide for a foreclosure and sale of the security for any matured
portion of the Debt without exhausting the power to foreclose and to sell the security for any other
portion of the Debt whether matured at the time or subsequently maturing.
(b) Upon the occurrence of any Event of Default, Borrower hereby authorizes and empowers
Trustee, at any time thereafter, at the request of Lender (which request is hereby conclusively
presumed), to sell at public sale the Property or any part thereof, or any interest therein, after
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providing notice of default, allowing the right to cure, providing notice of sale and advertising the
sale by publication,all as required under Applicable Law,to sell the Property at public outcry to the
highest bidder for cash(or upon such other terms as may be reasonable),free from and in bar of all
rights and equities of redemption, statutory right of redemption, the common law equity of
redemption, homestead, dower and all other rights or exemptions of every kind, all of which are
hereby expressly waived by Borrower to the extent such waivers are permitted under the Applicable
Law. The Trustee may sell the Property as a whole or in such parcels or parts as he in his judgment
may deem advisable.The Lender may bid at such sale and purchase the Property or any part thereof
if Lender is the highest bidder therefor. Upon such sale, the Trustee is authorized to execute and
deliver a deed or deeds or other instruments of conveyance or transfer of the Property, or any part
thereof,to the purchaser but without covenant or warranty, expressed or implied, and the recitals in
such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. In case of any
sale under this Security Instrument, the Borrower will at once surrender possession of the Property
and will from that moment become and be a tenant at sufferance of the purchaser,and be removable
by process,such as forcible eviction,and the Borrower will pay to the purchaser the reasonable rental
value of the Property after such sale for any period that the Borrower fails to surrender possession.
Borrower agrees that no notice of any sale other than as required under Applicable Law need be
given by Trustee, Lender or any other person. Borrower designates as Borrower's address for the
purposes of such notice, the address set out in the first paragraph of this Security Instrument, and
each other debtor,if any,obligated to pay the Debt agrees that such address shall likewise constitute
such other debtor's address for such notice, unless a different address is designated by such other
debtor; no change of such address or designation of a different address shall be binding on Lender
until thirty(30)days after Lender has received notice of such change sent to Lender by certified mail
postage prepaid,return receipt requested,addressed to Lender at the address for Lender set out in the
first paragraph of this Security Instrument(or to such other address as Lender may have designated
by notice given as above provided to Borrower and such other debtors). Any change of address of
Lender shall be effective three(3)Business Days after written notice thereof addressed to Borrower
and sent by regular United States mail,postage prepaid, has been deposited in the care and custody
of the United States Postal Service. The proceeds of any sale under this Security Instrument shall
be applied by the Trustee as follows(Borrower hereby waives any contrary provisions of Applicable
Law): first, to pay the costs and expenses of making, maintaining and executing this trust and the
protection of the Property, including the costs of any litigation, expenses of sale, a reasonable
compensation to the Trustee and such reasonable attorneys' fees as may have been incurred in the
execution of this trust; next, to any fees, premiums, interests or other loan charges due the Lender;
next,to pay the Debt,as well as any advances by the Lender and any other sums owing to the Lender
by the Borrower pursuant to this Security Instrument or the Note,including accrued interest thereon,
in such order of application as the Lender shall determine; and next to pay the balance, if any(less
the expense, if any, of obtaining possession),to the persons or entities legally entitled thereto upon
delivery and surrender of possession of the Property sold to the purchaser. Payment of the purchase
price to Trustee shall satisfy the obligation of the purchaser at such sale therefor,and such purchaser
shall not be bound to look after the application thereof. Notwithstanding the foregoing,if any person
or party other than the then owners of the Property shall notify Lender or Trustee of a claim to said
sums or any part thereof prior to disbursement thereof by Trustee,then Trustee or Lender or both of
them at their option, may interplead all or any part of said funds into a court of competent
jurisdiction, and in such event,Lender and Trustee each shall be entitled to recover from such sums
so deposited an amount equal to the attorneys' fees and other costs and expenses incurred by them
or either of them, in connection with such proceeding,to the full extent permitted by all Applicable
Law. It is a condition of this conveyance that the Borrower shall retain possession of the Property
until there is an Event of Default under this Security Instrument,under the Note or under the Loan
Documents. After such Event of Default,irrespective of whether the Debt has then been accelerated
or whether foreclosure proceedings have been commenced, the Lender or the Trustee may, after
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failure of Borrower to cure the Event of Default (a) within five (5) days of an event of default in
payment of the Note or any other default which can be cured by payment of money, or (b) within
thirty(30)days following written notice in the event of any other type of default hereunder or under
the Note or Loan Documents, without notice to or demand upon Borrower, take possession of the
Property. While in possession of the Property,the Lender or Trustee shall have the following rights
and powers and Borrower further covenants as follows:
(i) To collect any rents, and manage, lease, alter and repair the Property, cancel or
modify existing leases, obtain insurance and in general have all powers and rights
customarily incident to absolute ownership; and
(ii) To pay out of the rents so collected, the management and repair charges, taxes,
insurance,commissions,fees and all other expenses and, after creating reasonable reserves,
apply the balance (if any) on account of the indebtedness secured hereby in such order of
application as the Lender shall determine.
In the event of the exercise of the power of sale herein contained or a foreclosure hereof,the Lender
or the Trustee may remain in possession of the Property until the sale of the Property is concluded.
Neither the Lender nor the Trustee shall incur any liability for,nor shall Borrower assert any claim
or set-off as a result of,any action taken while the Lender or Trustee is in possession of the Property,
except only for the Lender's or Trustee's willful misconduct, bad faith or gross negligence. In the
event no foreclosure proceedings are commenced or the power of sale is not exercised, the Lender
or Trustee may remain in possession as long as there exists a default hereunder. The necessity of the
Trustee or any successor in trust, making oath, filing inventory or giving bond as security for the
execution of this trust, as may be required by applicable state law, is hereby expressly waived.
(c) Borrower hereby ratifies and confirms any and all acts that Trustee shall do lawfully by
virtue hereof. Borrower hereby agrees, on behalf of Borrower and Borrower's respective heirs,
personal representatives, successors and assigns,that the recitals contained in any deed or deeds or
other instrument executed in due form by any Trustee,acting under the provisions of this instrument,
shall be prima facie evidence of the facts recited, and that it shall not be necessary to prove in any
court, otherwise than by such recitals,the existence of the facts essential to authorize the execution
and delivery of such deed or deeds or other instrument and the passing of title thereby, and all
prerequisites and requirements of any sale or sales shall be conclusively presumed to have been
performed,and all persons subsequently dealing with the Property purported to be conveyed by such
deed or deeds or other instrument, including without limitation,the purchaser or purchasers thereof, ,
shall be fully protected in relying upon the truthfulness of such recitals. Trustee,acting in accordance
with the terms hereof, shall not be personally liable for any action taken pursuant hereto.
(d) Lender may bid, and being the highest bidder therefor, become the purchaser of any or all
of the Property at any trustee's or foreclosure sale hereunder and shall have the right to credit the
amount of the bid upon the unpaid amount of the Debt in lieu of cash payment.
(e) The purchaser at any trustee's or foreclosure sale hereunder may disaffirm any easement
granted,or lease or other agreement made in violation of any provision of this Security Instrument,
and may take immediate possession of the Property free from and notwithstanding the terms of,such
grant of easement,lease or other agreement.
(f) Upon the occurrence of an Event of Default by Borrower as set out in Article 10, Lender
may,without limitation of any other rights or remedies of Lender, exercise the rights and remedies
set forth in Article 11 hereof.
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(g) The sale or sales by the Trustee of less than the whole of the Property shall not exhaust the
power of sale herein granted, and the Trustee is specifically empowered to make successive sale or
sales, under such power, of such portion of or interest in the Property and in such order as Trustee
may determine until the whole of the Property shall be sold; and if the proceeds of such sale or sales
of less than the whole of such Property shall be less than the aggregate of the Debt and the expense
of executing this trust,this Security Instrument shall remain in full force and effect as to the unsold
portion of the Property just as though no sale or sales had been made; provided, however, that
Borrower shall never have the right to require that the Property be sold, as an entirety or in parcels,
but Lender shall have the right,as a matter of Lender's sole discretion,to request the Trustee to sell
the Property as an entirety or to sell any portion of or interest in the Property. In addition, if any sale
hereunder is not completed or is defective in the opinion of Lender, such sale shall not exhaust the
power of sale hereunder, and Lender shall have the right to have a subsequent sale or sales to be
made by the Trustee. Pursuant to Section 25-9-604 of the North Carolina General Statutes is
expressly authorized and empowered to expose to sale and sell, together with the real estate, any
portion of the Property which constitutes personal property. If personal property is sold hereunder,
it need not be at the place of sale.
(h) In the event Trustee mails,files and/or posts the notices or advertisements of foreclosure sale
as required hereunder,Lender may decide not to proceed with a foreclosure sale on the date set forth
in such notice, and such decision shall in no manner prevent Lender from directing the Trustee to
give notice of a foreclosure sale,as provided herein,at any future date,nor effect a waiver of any of
Lender's rights and remedies hereunder. Further, in the event a foreclosure sale is commenced
hereunder by Trustee, Lender, at any time prior to the completion of such sale, may direct such
Trustee to abandon the sale and may thereafter institute suit for foreclosure of any of the liens and
security interests created by this Security Instrument. If Lender shall so elect to institute a suit for
collection of the Debt or any part thereof and for foreclosure of the liens and security interests
evidenced hereby, it is agreed further that Lender, at any time before entry of final judgment, may
cause such suit to be dismissed and thereafter direct and require that Trustee proceed to sell the
Property, or any part thereof, in accordance with the terms hereof, including but not limited to, the
terms of paragraph(b)above and the terms of the Uniform Commercial Code, as herein provided.
(i) Each and all of the rights,powers and remedies hereunder are cumulative of and in addition
to all other rights, powers and remedies herein contained or contained in any other instrument or
document evidencing, securing or otherwise relating to the Debt or which Lender may have under ,
all applicable laws. None of the terms and provisions hereof and no action or omission by or on
behalf of Lender shall ever make Lender a trustee for,or otherwise create a trust,partnership or other
fiduciary relationship between,Lender and Borrower.
Section 22.8 Partial Releases. Provided(i)no uncured Event of Default exists under the Note,this
Security Instrument or any of the other Loan Documents, and (ii) Borrower pays to Lender the required
release price,Borrower shall be entitled to receive partial releases from Lender of the liens created by this
Security Instrument in accordance with the terms of that certain Loan Agreement(the "Loan Agreement")
dated of even date herewith executed by Borrower and Lender.
Section 22.9 Future Advances. The Obligations secured by this Security Instrument are for present
and future advances to and obligations of Borrower, and this Security Instrument is executed to secure all
such present and future obligations and advances. The period in which future advances may be made and
obligations may be incurred and secured by this Security Instrument is the period between the date hereof and
that date which is 30 years from the date hereof. The amount of present obligations secured by this Security
Instrument is the face amount of the Note,and the maximum principal amount, including present and future
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obligations and advances,which may be secured by this Security Instrument at any one time is twice the face
amount of the Note. Any additional amounts advanced by Lender pursuant to the provisions of this Security
Instrument shall be deemed necessary expenditures for the preservation and protection of the security. Each
future advance made to or obligation incurred by Borrower need not be evidenced by a written instrument ,
or notation signed by Borrower or any other party stipulating that such advance is secured by this Security
Instrument. All future advances and obligations shall be considered to be made and secured pursuant to the
requirements of North Carolina General Statutes Section 45-67, et seq., or any amendments thereto.
Section 22.10 North Carolina Law. Nothing in this Security Instrument dealing with foreclosure
procedures which specifies any particular actions to be taken by Trustee or Lender shall be deemed to
contradict the requirements and procedures of North Carolina law applicable at the time of foreclosure.
IN WITNESS WHEREOF,this Security Instrument has been executed by Borrower the day and year
first above written.
[SIGNATURE PAGE TO FOLLOW]
(.
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Signature Page 1 of 1 to the Deed of Trust
BORRO ER:
DKO A NVESTME I ,IN
•
Russell eitch,President
STATE OF TEXAS §
COUNTY OF
This instrument was acknowledged before me on the)/ •: o ar (l ,2074,
by Russell Leitch, President of DKOTA INVESTMENTS, IN ., a Te as •rp• ation, on beha f of said
corporation. �I
�P; "a-. Patrizia Pelfrey I Arid ( 1
: (I 4,0 Notary Public,State of Texas•; o ary Public' State of exas •
e oa. Comm,Expires 08/04/2024 a%?(/
`•'-+rE;ft+pg,.� MyCommission Expires:
, Notary ID 13076620-5 I h
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EXHIBIT"A"
BEING ALL OF THAT CERTAIN TRACT OR PARCEL DESCRIBED AS LOT#2,CONTAINING 3.744
ACRES, MORE OR LESS, AS SHOWN ON PLAT RECORDED IN PLAT BOOK 9995, PAGE 10115,
ENTITLED "MINOR SUB DIVISION SURVEY OF: 0 SUMMIT PARK DR" FOR OWNER ROWAN
COUNTY,NORTH CAROLINA.
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