Exhibit 10.6
Loan No. V_08893
FIXED RATE NOTE
$1,825,000 May 25, 2000
FOR VALUE RECEIVED, 4212 TECHCOURT, LLC, a Virginia limited liability
company (hereinafter referred to as "BORROWER"), promises to pay to the order
of XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, a New York banking
corporation, its successors and assigns (hereinafter referred to as "'LENDER"),
at the office of Lender or its agent designee, or assignee at 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Loan Servicing, or at such place as
Lender or its agent, designee, or assignee may from time to time designate in
writing, the principal sum of ONE MILLION EIGHT HUNDRED TWENTY-FIVE THOUSAND AND
NO/100 DOLLARS (1,825,000), in lawful money of the United States of America,
with interest thereon to be computed on the unpaid principal balance from time
to time outstanding at the Applicable Interest Rate (hereinafter defined) at all
times prior to the occurrence of an Event of Default (as defined in the Security
Instrument [hereinafter defined]), and to be paid in installments as set forth
below. Unless otherwise herein defined, all initially capitalized terms shall
have the meanings given such terms in the Security Instrument.
1. PAYMENT TERMS
Principal and interest due under this Note shall be paid as follows:
(a) A payment of interest only on the date hereof for the period
from the date hereof through May 31, 2000, both inclusive; and
(b) A constant payment of $14,071.49 (subject to adjustment as set
forth in Section 2 of this Note), on the first day of July, 2000 and on
the first day of each calendar month thereafter, up to and including the
first day of May, 2010;
with payments under this Note to be applied as follows:
(i) First, to the payment of interest and other costs and charges
due in connection with this Note or the Debt, as Lender may determine in
its sole discretion; and
(ii) The balance shall be applied toward the reduction of the
principal sum;
and the balance of said principal sum, together with accrued and unpaid
interest and any other amounts due under this Note shall be due and
payable on the first day of June, 2010 or upon earlier maturity hereof
whether by acceleration or otherwise (the "MATURITY DATE"). Interest on
the principal sum of this Note shall be calculated on the basis of a three
hundred sixty (360) day year and paid for the actual number of days
elapsed. All amounts due under this Note shall be payable without setoff,
counterclaim or any other deduction whatsoever.
2. INTEREST
The term "APPLICABLE INTEREST RATE" as used in this Note shall mean a rate
per annum equal to Eight and Fifty-Three Hundredths Percent (8.53%).
Notwithstanding the foregoing, in the event that Borrower fails to satisfy the
"Occupancy Certificate Criteria" (as defined in Section 19 of this Note) on or
before June 7, 2000, the Applicable Interest Rate payable under this Note shall
be adjusted to a rate equal to 6.38% plus the ten-year middle market swap rate
(as determined by Lender in its reasonable discretion) plus 135 basis points
(the "ADJUSTED INTEREST RATE") and the monthly principal and interest payments
payable under Section 1.b. of this Note shall be adjusted to reflect that the
Loan has been reamortized at the Adjusted Interest Rate based on the initial 360
month amortization schedule.
3. SECURITY
This Note is secured by, and Xxxxxx is entitled to the benefits of, the
Security Instrument, the Assignment, the Environmental Agreement, and the other
Loan Documents (hereinafter defined). The term "SECURITY INSTRUMENT" means the
Deed of Trust and Security Agreement dated the date hereof given by Borrower for
the use and benefit of Lender covering the estate of Borrower in certain
premises as more particularly described therein (which premises, together with
all properties, rights, titles, estates and interests now or hereafter securing
the Debt and/or other obligations of Borrower under the Loan Documents, are
collectively referred to herein as the "PROPERTY"). The term "ASSIGNMENT" means
the Assignment of Leases and Rents of even date herewith executed by Xxxxxxxx in
favor of Xxxxxx. The term "ENVIRONMENTAL AGREEMENT" means the Environmental
Indemnity Agreement of even date herewith executed by Xxxxxxxx in favor of
Xxxxxx. The term "ESCROW AGREEMENT" means the Escrow Agreement for Reserves and
Impounds of even date herewith executed by Xxxxxxxx in favor of Xxxxxx. The term
"LOAN DOCUMENTS" refers collectively to this Note, the Security Instrument, the
Assignment, the Environmental Agreement, the Escrow Agreement and any and all
other documents executed in connection with this Note or now or hereafter
executed by Xxxxxxxx and/or others and by or in favor of Lender, which wholly or
partially secure or guarantee payment of this Note or pertains to indebtedness
evidenced by this Note.
4. LATE FEE
If any installment payable under this Note is not received by Lender prior
to the seventh (7th) calendar day after the same is due (without regard to any
applicable cure and/or notice period), Borrower shall pay to Lender upon demand
an amount equal to the lesser of (a) five percent (5%) of such unpaid sum, or
(b) the maximum amount permitted by applicable law to defray the expenses
incurred by Lender in handling and processing such delinquent payment and to
compensate Lender for the loss of the use of such delinquent payment, and such
amount shall be secured by the Loan Documents.
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5. DEFAULT AND ACCELERATION
So long as an Event of Default exists, Lender may, at its option, without
notice or demand to Borrower, declare the Debt immediately due and payable. All
remedies hereunder, under the Loan Documents and at law or in equity shall be
cumulative. In the event that it should become necessary to employ counsel to
collect the Debt or to protect or foreclose the security for the Debt or to
defend against any claims asserted by Borrower arising from or related to the
Loan Documents, Xxxxxxxx also agrees to pay to Lender on demand all costs of
collection or defense incurred by Xxxxxx, including reasonable attorneys' fees
for the services of counsel whether or not suit be brought.
6. DEFAULT INTEREST
Upon the occurrence of an Event of Default Borrower shall pay interest on
the entire unpaid principal sum and any other amounts due under the Loan
Documents at the rate equal to the lesser of (a) the maximum rate permitted by
applicable law, or (b) the greater of (i) five percent (5%) above the Applicable
Interest Rate or (ii) five percent (5%) above the Prime Rate (hereinafter
defined), in effect at the time of the occurrence of the Event of Default (the
"DEFAULT RATE"). The term "PRIME RATE" means the prime rate reported in the
Money Rates section of The Wall Street Journal. In the event that The Wall
Street Journal should cease or temporarily interrupt publication, the term
"PRIME RATE" shall mean the daily average prime rate published in another
business newspaper, or business section of a newspaper, of national standing
and general circulation chosen by Xxxxxx. In the event that a prime rate is no
longer generally published or is limited, regulated or administered by a
governmental or quasi-governmental body, then Lender shall select a comparable
interest rate index which is readily available and verifiable to Borrower but is
beyond Lender's control. The Default Rate shall be computed from the occurrence
of the Event of Default until the actual receipt and collection of a sum of
money determined by Xxxxxx to be sufficient to cure the Event of Default.
Amounts of interest accrued at the Default Rate shall constitute a portion of
the Debt, and shall be deemed secured by the Loan Documents. This clause,
however, shall not be construed as an agreement or privilege to extend the date
of the payment of the Debt, nor as a waiver of any other fight or remedy
accruing to Lender by reason of the occurrence of any Event of Default.
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7. PREPAYMENT
(a) The principal balance of this Note may not be prepaid in whole
or in part (except with respect to the application of casualty or
condemnation proceeds). If following the occurrence of any Event of
Default, Borrower shall tender payment to Lender or Lender shall receive
proceeds (whether through foreclosure or the exercise of the other
remedies available to Lender under the Security Instrument or the other
Loan Documents), Borrower shall pay in addition to interest accrued and
unpaid on the principal balance of this Note and all other sums then due
under this Note and the other Loan Documents a prepayment consideration in
an amount equal to the greater of(A) one percent (1%) of the outstanding
principal balance of this Note at the time such payment or proceeds are
received, or (B) (x) the present value as of the date such payment or
proceeds are received of the remaining scheduled payments of principal and
interest from the date such payment or proceeds are received through the
Maturity Date (assuming solely for purposes of this calculation that the
unamorized principal balance of this Note (after giving effect to
amortization by all monthly payments due prior to the Maturity Date) is
paid in full on the Maturity Date) determined by discounting such payments
at the Discount Rate (as hereinafter defined), less (y) the amount of the
payment or proceeds received (the amount resulting from the calculation in
the foregoing subparagraph (B) being hereinafter referred to as the "YIELD
MAINTENANCE AMOUNT"). The term "DISCOUNT RATE" means the rate which, when
compounded monthly, is equivalent to the Treasury Rate (as hereinafter
defined), when compounded semi-annually. The term "TREASURY RATE" means
the yield calculated by the linear interpolation of the yields, as
reported in Federal Reserve Statistical Release H.15-Selected Interest
Rates under the heading "U.S. Government Securities/Treasury Constant
Maturities" for the week ending prior to the date the payment of such
proceeds are received, of U.S. Treasury constant maturities with maturity
dates (one longer and one shorter) most nearly approximating the Maturity
Date. (In the event Release H.15 is no longer published, Lender shall
select a comparable publication to determine the Treasury Rate.) Lender
shall notify Borrower of the amount and the basis of determination of the
required prepayment consideration, which shall be conclusive except in the
case of manifest error. Notwithstanding the foregoing, Borrower shall have
the additional privilege to prepay the entire principal balance of this
Note (together with any other sums constituting the Debt) on any scheduled
payment date occurring on or after that date which is three (3) months
preceding the Maturity Date without any fee or consideration for such
privilege.
(b) If the prepayment results from the application to the Debt of
the casualty or condemnation proceeds from the Property, no prepayment
consideration will be imposed. Partial prepayments of principal resulting
from the application of casualty or condemnation proceeds to the Debt
shall not change the amounts of subsequent monthly installments nor change
the dates on which such installments are due, unless Lender shall
otherwise agree in writing.
(c) (i) Notwithstanding any provision of this Section 7 to the
contrary, at any time during which voluntary prepayment of this Note is
prohibited by Section 7(a)
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hereof and after the earlier of (l) the date which is two (2) years after
the "startup day," within the meaning of Section 860G(a)(9) of the
Internal Revenue Code of 1986, as amended from time to time or any
successor statute (the "Code"), of a "real estate mortgage investment
conduit," within the meaning of Section 860D of the Code, that holds this
Note, and (2) a regularly scheduled payment date on or after that date
which is four (4) years after the date of the first monthly payment due
under Section l(b), and provided no Event of Default (or any event which
with the passage of time or the giving of notice, or both, could become an
Event of Default) has occurred under the Security Instrument or under any
of the Loan Documents, Borrower may cause the release of the Property (in
whole but not in part) from the lien of the Security Instrument and the
other Loan Documents upon the satisfaction of the following conditions
precedent:
(A) not less than thirty (30) days prior written notice to
Lender specifying a regularly scheduled payment date (the "Release
Date") on which the Defeasance Deposit (hereinafter defined) is to
be made;
(B) the payment to Lender of interest accrued and unpaid on
the principal balance of this Note to and including the Release
Date;
(C) the payment to Lender of all other sums, not including
scheduled interest or principal payments, due under this Note, the
Security Instrument and the other Loan Documents;
(D) the payment to Lender of the Defeasance Deposit; and
(E) the delivery to Lender of:
(1) a security agreement, in form and substance
satisfactory to Lender, creating a first priority
lien on the Defeasance Deposit and the U.S.
Obligations (hereinafter defined) purchased on
behalf of Borrower with the Defeasance Deposit in
accordance with this subparagraph (the "Security
Agreement");
(2) a release of the Property from the lien of the
Security Instrument (for execution by Xxxxxx) in a
form appropriate for the jurisdiction in which the
Property is located;
(3) an officer's certificate of Borrower certifying
that the requirements set forth in this
subparagraph (i) have been satisfied;
(4) an opinion of counsel for Xxxxxxxx in form
satisfactory to Xxxxxx stating, among other
things, that defeasance of this Note will not
cause any adverse tax consequences to any REMIC
holding the Loan or the holders of any securities
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issued by the REMIC or result in a taxation of the
income from the Loan to such REMIC or cause a loss
of REMIC status, and that Xxxxxx has a perfected
first priority security interest in the Defeasance
Deposit and the U.S. Obligations purchased by
Xxxxxx on behalf of Xxxxxxxx;
(5) an opinion of a certified public accountant
acceptable to Lender to the effect that the
Defeasance Deposit is adequate to provide payment
on or prior to, but as close as possible to, all
successive scheduled payment dates after the
Release Date upon which interest and principal
payments are required under this Note (assuming
solely for purposes of this calculation that the
unamortized principal balance of this Note (after
giving effect to amortization by all monthly
payments due prior to the Maturity Date) is paid
in full on the Maturity Date) and in amounts equal
to the scheduled payments due on such dates under
this Note;
(6) evidence in writing from the applicable Rating
Agencies to the effect that such release will not
result in a re-qualification, reduction or
withdrawal of any rating in effect immediately
prior to such defeasance for any Securities;
(7) payment of all of Xxxxxx's expenses incurred in
connection with the defeasance including, without
limitation, reasonable attorneys fees; and
(8) such other certificates, documents or instruments
as Lender may reasonably request.
In connection with the conditions set forth in subsection (c)(i)(E) above,
Borrower hereby appoints Lender as its agent and attorney-in-fact for the
purpose of using the Defeasance Deposit to purchase U.S. Obligations which
provide payment on or prior to, but as close as possible to, all successive
scheduled payment dates after the Release Date upon which interest and principal
payments are required under this Note (assuming solely for purposes of this
calculation that the unamortized principal balance of this Note (after giving
effect to amortization by all monthly payments due prior to the Maturity Date)
is paid in full on the Maturity Date) and in amounts equal to the scheduled
payments due on such dates under this Note (the "Scheduled Defeasance
Payments"). Borrower, pursuant to the Security Agreement or other appropriate
document, shall authorize and direct that the payments received from the U.S.
Obligations may be made directly to Lender and applied to satisfy the
obligations of the Borrower under this Note.
(ii) Upon compliance with the requirements of this subsection (c), the
Property shall be released from the lien of the Security Instrument and the
pledged U.S. Obligations shall be the sole source of collateral securing this
Note. Any portion of the Defeasance Deposit in excess of
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the amount necessary to purchase the U.S. Obligations required by subparagraph
(c)(i) above and satisfy the Borrower's obligations under this subsection (c)
shall be remitted to the Borrower with the release of the Property from the lien
of the Security Instrument.
(iii) For purposes of this subsection (c), the following terms shall have
the following meanings:
(A) The term "Defeasance Deposit" shall mean an amount equal
to 100% of the remaining principal amount of this Note, the Yield
Maintenance Premium, any costs and expenses incurred or to be
incurred in the purchase of the U.S. Obligations necessary to meet
the Scheduled Defeasance Payments and any revenue, documentary stamp
or intangible taxes or any other tax or charge due in connection
with the transfer of this Note or otherwise required to accomplish
the agreements of this subsection;
(B) The term "Yield Maintenance Premium" shall mean the
amount (if any) which, when added to the remaining principal amount
of this Note, will be sufficient to purchase U.S. Obligations
providing the required Scheduled Defeasance Payments; and
(C) The term "U.S. Obligations" shall mean direct
non-callable obligations of the United States of America.
(iv) Upon the release of the Property in accordance with this subsection
(c), Borrower shall, at Xxxxxx's request, assign all its obligations and rights
under this Note, together with the pledged Defeasance Deposit, to a successor
special purpose entity designated by Xxxxxxxx and approved by Lender in its sole
discretion. Such successor entity shall execute an assumption agreement in form
and substance satisfactory to Lender in its sole discretion pursuant to which it
shall assume Borrower's obligations under this Note and the Security Agreement.
In connection with such assignment and assumption, Borrower shall (x) deliver to
Lender an opinion of counsel in form and substance and delivered by counsel
satisfactory to Lender in its sole discretion stating, among other things, that
such assumption agreement is enforceable against Borrower and such successor
entity in accordance with its terms and that this Note, the Security Agreement
and the other Loan Documents, as so assumed, are enforceable against such
successor entity in accordance with their respective terms, and (y) pay all
costs and expenses incurred by Lender or its agents in connection with such
assignment and assumption (including, without limitation, the review of the
proposed transferee and the preparation of the assumption agreement and related
documentation). In connection with such assignment and assumption, Borrower and
any Guarantor may be released of personal liability under the Note and the other
Loan Documents, but only as to acts Or events occurring after the closing of
such assignment and assumption.
(v) Upon the release of the Property in accordance with this subsection
(c), Borrower shall have no further right to prepay this Note pursuant to the
other provisions of this Section 7 or otherwise.
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8. SAVINGS CLAUSE
This Note is subject to the express condition that at no time shall
Borrower be obligated or required to pay interest on the principal balance due
hereunder at a rate which could subject Lender to either civil or criminal
liability as a result of being in excess of the maximum interest rate which
Borrower is permitted by applicable law to contract or agree to pay. If by the
terms of this Note, Borrower is at any time required or obligated to pay
interest on the principal balance due hereunder at a rate in excess of such
maximum rate, the Applicable Interest Rate or the Default Rate, as the case may
be, shall be deemed to be immediately reduced to such maximum rate and all
previous payments in excess of the maximum rate shall be deemed to have been
payments in reduction of principal and not on account of the interest due
hereunder. All sums paid or agreed to be paid to Lender for the use,
forbearance, or detention of the Debt, shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread throughout the
full stated term of this Note until payment in full so that the rate or amount
of interest on account of the Debt does not exceed the maximum lawful rate of
interest from time to time in effect and applicable to the Debt for so long as
the Debt is outstanding. Notwithstanding anything to the contrary contained
herein or in any of the other Loan Documents, it is not the intention of Lender
to accelerate the maturity of any interest that has not accrued at the time of
such acceleration or to collect unearned interest at the time of such
acceleration.
9. WAIVERS.
(a) Except as specifically provided in the Loan Documents,
Borrower and any endorsers, sureties or guarantors hereof jointly and
severally waive presentment and demand for payment, notice of intent to
accelerate maturity, notice of acceleration of maturity, protest and
notice of protest and non-payment, all applicable exemption rights,
valuation and appraisement, notice of demand, and all other notices in
connection with the delivery, acceptance, performance, default or
enforcement of the payment of this Note and the bringing of suit and
diligence in taking any action to collect any sums owing hereunder or in
proceeding against any of the rights and collateral securing payment
hereof. Borrower and any surety, endorser or guarantor hereof agree (i)
that the time for any payments hereunder may be extended from time to time
without notice and consent, (ii) to the acceptance by Lender of further
collateral, (iii) the release by Lender of any existing collateral for the
payment of this Note, (iv) to any and all renewals, waivers or
modifications that may be granted by Lender with respect to the payment or
other provisions of this Note, and/or (v) that additional Borrowers,
endorsers, guarantors or sureties may become parties hereto all without
notice to them and without in any manner affecting their liability under
or with respect to this Note. No extension of time for the payment of this
Note or any installment hereof shall affect the liability of Borrower
under this Note or any endorser or guarantor hereof even though the
Borrower or such endorser or guarantor is not a party to such agreement.
(b) Failure of Lender to exercise any of the options granted
herein to Lender upon the happening of one or more of the events giving
rise to such options shall not constitute a waiver of the right to
exercise the same or any other option at any subsequent time in respect to
the same or any other event. The acceptance by Lender of any payment
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hereunder that is less than payment in full of all amounts due and payable
at the time of such payment shall not constitute a waiver of the right to
exercise any of the options granted herein to Lender at that time or at
any subsequent time or nullify any prior exercise of any such option
without the express written acknowledgment of the Lender.
10. EXCULPATION
(a) Notwithstanding anything in the Loan Documents to the
contrary, but subject to the qualifications below, Xxxxxx and Borrower
agree that:
(i) Borrower shall be liable upon the Debt and for the other
obligations arising under the Loan Documents to the full extent (but
only to the extent) of the security therefor; provided, however,
that in the event (A) of fraud, willful misconduct or material
misrepresentation by Borrower, its general partners, if any, its
members, if any, its principals, its affiliates, its agents or its
employees or by any Guarantor in connection with the loan evidenced
by this Note, (B) of a breach or default under Section 8.2 of the
Security Instrument, or (C) the Property or any part thereof
becomes an asset in a voluntary bankruptcy or insolvency proceeding,
the limitation on recourse set forth in this Subsection 10(a) will
be null and void and completely inapplicable, and this Note shall be
with full recourse to Borrower.
(ii) If a default occurs in the timely and proper payment of
all or any part of the Debt, Lender shall not enforce the liability
and obligation of Borrower to perform and observe the obligations
contained in this Note or the Security Instrument by any action or
proceeding wherein a money judgment shall be sought against
Borrower, except that Lender may bring a foreclosure action, action
for specific performance or other appropriate action or proceeding
to enable Lender to enforce and realize upon the Security
Instrument, the Other Loan Documents and the interest in the
Property, the Rents and any other collateral given to Lender
created by the Security Instrument and the Other Loan Documents;
provided, however, that any judgment in any action or proceeding
shall be enforceable against Borrower only to the extent of
Xxxxxxxx's interest in the Property, in the Rents and in any other
collateral given to Lender. Xxxxxx, by accepting this Note and the
Security Instrument, agrees that it shall not, except as otherwise
herein provided, sue for, seek or demand any deficiency judgment
against Borrower in any action or proceeding, under or by reason of
or under or in connection with this Note, the Other Loan Documents
or the Security Instrument.
(iii) The provisions of this Subsection 10(a) shall not (A)
constitute a waiver, release or impairment of any obligation
evidenced or secured by this Note, the Other Loan Documents or the
Security Instrument; (B) impair the right of Lender to name Borrower
as a party defendant in any action or suit for judicial foreclosure
and sale under the Security Instrument; (C) affect the validity or
enforceability of any indemnity, guaranty, master lease or similar
instrument made in connection with this Note, the Security
Instrument, or the Other Loan
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Documents; (D) impair the fight of Lender to obtain the appointment
of a receiver; (E) impair the enforcement of the Assignment executed
in connection herewith; (F) impair the right of Lender to enforce
the provisions of Article 11 of the Security Instrument; or (G)
impair the right of Lender to obtain a deficiency judgment or
judgment on this Note against Borrower if necessary to obtain any
insurance proceeds or condemnation awards to which Xxxxxx would
otherwise be entitled under the Security Instrument; provided,
however, Xxxxxx shall only enforce such judgment against the
insurance proceeds and/or condemnation awards.
(iv) Notwithstanding the provisions, of this Article to the
contrary, Borrower shall be personally liable to Lender for the
Losses it incurs due to: (A) the misapplication or misappropriation
of Rents; (B) the misapplication or misappropriation of insurance
proceeds or condemnation awards; (C) Borrower's failure to return or
to reimburse Lender for all Personal Property taken from the
Property by or on behalf of Xxxxxxxx and not replaced with Personal
Property of the same utility and of the same or greater value; (D)
any act of actual waste or arson by Borrower, any principal,
affiliate, general partner or member thereof or by any Guarantor;
(E) any fees or commissions paid by Borrower to any principal,
affiliate, general partner or member of Borrower, or any Guarantor
in violation of the terms of this Note, the Security Instrument or
the Other Loan Documents; (F) Borrower's failure to comply with the
provisions of Sections 4.3 or 11.2 of the Security Instrument; or
(G) any breach of the Environmental Indemnity;.
(b) Nothing herein shall be deemed to be a waiver of any right
which Lender may have under Sections $06(a), 506(b), llll(b) or any other
provisions of the Bankruptcy Code to file a claim for the full amount of
the Debt or to require that all collateral shall continue to secure all of
the Debt, owing to Lender in accordance with this Note, the Security
Instrument and the Other Loan Documents.
11. AUTHORITY
Borrower (and the undersigned representative of Borrower, if any)
represents that Borrower has full power, authority and legal right to execute,
deliver and perform its obligations pursuant to this Note and the other Loan
Documents and that this Note and the other Loan Documents constitute legal,
valid and binding obligations of Borrower. Borrower further represents that the
loan evidenced by the Loan Documents was made for business or commercial
purposes and not for personal, family or household use.
12. NOTICES
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All notices or other communications required or permitted to be given
pursuant hereto shall be given in the manner and be effective as specified in
the Security Instrument, directed to the parties at their respective addresses
as provided therein.
13. TRANSFER
Lender shall have the unrestricted right at any time or from time to time
to sell this Note and the loan evidenced by this Note and the Loan Documents or
participation interests therein. Borrower shall execute, acknowledge and
deliver any and all instruments requested by Xxxxxx to satisfy such purchasers
or participants that the unpaid indebtedness evidenced by this Note is
outstanding upon the terms and provisions set out in this Note and the other
Loan Documents. To the extent, if any, specified in such assignment or
participation, such assignee(s) or participant(s) shall have the rights and
benefits with respect to this Note and the other Loan Documents as such
assignee(s) or participant(s) would have if they were the Lender hereunder.
14. WAIVER OF TRIAL BY JURY
BORROWER HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE
OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT
ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS NOTE OR THE
OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN
CONNECTION THEREWITH INCLUDING, BUT NOT LIMITED TO, THOSE RELATING TO (A)
ALLEGATIONS THAT A PARTNERSHIP EXISTS BETWEEN XXXXXX AND BORROWER; (B) USURY OR
PENALTIES OR DAMAGES THEREFOR; (C) ALLEGATIONS OF UNCONSCIONABLE ACTS, DECEPTIVE
TRADE PRACTICE, LACK OF GOOD FAITH OR FAIR DEALING, LACK OF COMMERCIAL
REASONABLENESS, OR SPECIAL RELATIONSHIPS (SUCH AS FIDUCIARY, TRUST OR
CONFIDENTIAL RELATIONSHIP); (D) ALLEGATIONS OF DOMINION, CONTROL, ALTER EGO,
INSTRUMENTALITY, FRAUD, REAL ESTATE FRAUD, MISREPRESENTATION, DURESS, COERCION,
UNDUE INFLUENCE, INTERFERENCE OR NEGLIGENCE; (E) ALLEGATIONS OF TORTIOUS
INTERFERENCE WITH PRESENT OR .PROSPECTIVE BUSINESS RELATIONSHIPS OR OF
ANTITRUST; OR (F) SLANDER, LIBEL OR DAMAGE TO DER/REPUTATION. THIS WAIVER OF
RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY XXXXXXXX, AND IS
INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE
RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. XXXXXX IS HEREBY AUTHORIZED TO
FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS
WAIVER BY BORROWER.
15. APPLICABLE LAW
This Note shall be governed by and construed in accordance with the laws
of the Commonwealth of Virginia (without regard to any conflict of laws or
principles) and the applicable laws of the United States of America.
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16. JURISDICTION
BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY COURT OF
COMPETENT JURISDICTION LOCATED IN THE COMMONWEALTH OF VIRGINIA IN CONNECTION
WITH ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE.
17. NO ORAL CHANGE
The provisions of this Note and the Loan Documents may be amended or
revised only by an instrument in writing signed by the Borrower and Lender. This
Note and all the other Loan Documents embody the final, entire agreement of
Xxxxxxxx and Lender and supersede any and all prior commitments, agreements,
representations and understandings, whether written or oral, relating to the
subject matter hereof and thereof and may not be contradicted or varied by
evidence of prior, contemporaneous or subsequent oral agreements or discussions
of Xxxxxxxx and Xxxxxx. There are no oral agreements between Borrower and
Lender.
18. OCCUPANCY CERTIFICATE HOLDBACK
a. On the date hereof, Xxxxxx has reserved $85,000 from the Loan
proceeds, plus the Borrower's current rate lock deposit of $18,400, plus an
additional amount of $27,225 (collectively, the "OCCUPANCY CERTIFICATE
HOLDBACK") pending Borrower's satisfaction of the Occupancy Certificate Criteria
(as hereinafter defined).
b. If the Occupancy Certificate Criteria are not satisfied on or before
June 7, 2000, then the Adjusted Interest Rate shall apply from and after June 8,
2000.
c. Borrower shall have until August 15, 2000 (the "OUTSIDE RELEASE
DATE") to satisfy the Occupancy Certificate Criteria. If the Occupancy
Certificate Criteria are satisfied on or before the Outside Release Date,
lender shall release the entire Occupancy Certificate Holdback to Borrower
within five (5) business days of its receipt of evidence of such satisfaction of
the Occupancy Certificate Criteria together with a written request from Borrower
that Lender release the Occupancy Certificate Holdback. If the Occupancy
Certificate Criteria are not satisfied on or before the Outside Release Date,
then (i) Borrower's right to request the release of the Occupancy Certificate
Holdback shall automatically terminate, (ii) Lender shall apply the entire
Occupancy Certificate Holdback to reduce the principal balance of the Loan,
(iii) Borrower shall pay to Lender the Yield Maintenance Amount, if any,
applicable to such prepayment of principal, and (iv) Borrower shall be obligated
to make a principal payment to Lender (the "PRINCIPAL REDUCTION PAYMENT") in the
amount, if any, required to reduce the remaining principal balance of the Loan
(after application of the Occupancy Certificate Holdback) such that the debt
service coverage ratio for the Property with respect to the Loan (based solely
on income from tenants in occupancy under certificates of occupancy issued by
Fairfax County, Virginia, open for business and paying rent as of the date of
calculation.) is not
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less than 1.25X (calculated in a manner substantially the same as used in the
initial underwriting the Loan using the Adjusted Interest Rate), and (v) the
Loan will be reamortized based on the initial 360 month amortization schedule,
the Adjusted Interest Rate and the reduced principal amount following
application of the Occupancy Certificate Holdback and any Principal Reduction
Payment. Borrower shall pay to Lender the Yield Maintenance Amount, if any,
applicable to the Principal Reduction Payment.
d. "OCCUPANCY CERTIFICATE CRITERIA" shall mean the following:
(i) No Event of Default, or an event which with notice or the passage of time
or both shall constitute an Event of Default under the Note, the Security
Instrument or any of the Other Loan Documents shall have occurred and be
continuing;
(ii) Community Baptist Church shall be in occupancy of the entire premises
demised under its lease, as evidenced by a certificate of occupancy issued
by Fairfax County;
(iii) Lender shall have been provided with an original estoppel certificate from
Community Baptist Church in the form previously provided by Lender to
Borrower; and
(iv) The debt service coverage ratio for the Property with respect to the
Loan (based solely on income from tenants in occupancy under certificates
of occupancy issued by Fairfax County, Virginia, open for business and
paying rent as of the date of calculation.) must be not less than 1.25X
(calculated in a manner substantially the same as used in the initial
underwriting the Loan).
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Executed under seal as of the day and year first above written.
BORROWER:
4212 TECHCOURT, LLC,
a Virginia limited liability company
By: First Potomac Realty Investment Limited
Partnership, a Delaware limited partnership
Its Sole Member
By: First Potomac Realty Investment Trust, Inc.,
a Maryland corporation
Its Sole General Partner
By: Xxxxxxx Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: President
[Corporate Seal]
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