EX-10.26 34 tv503983_ex10-26.htm EXHIBIT 10.26

 

Exhibit 10.26

RECORDATION REQUIRED BY:

Langley Federal Credit Union, 721 Lakefront Commons, Newport News, VA 2l606

 

WHEN RECORDED MAIL TO:

Langley Federal Credit Union, 721 Lakefront Commons, Newport News, VA 2l606

 

SEND TAX NOTICES TO:

Langley Federal Credit Union, 721 Lakefront Commons, Newport News, VA 2l606

 

Tax Map Reference No(s) 8714-64-9344

 

Pursuant to Section S8.1803E of the Code of Virginia, this is to certify that this document represents the refinancing of an existing Deed of Trust in the Clerk’s Office, Circuit Court of Hanover County, Virginia In Deed Book 2896, page 2872 on which tax was paid   Page 1

 

DEED OF TRUST

THIS IS A CREDIT LINE DEED OF TRUST

 

Maximum aggregate amount of principal

to be secured hereby at any one lime: $8,600,000.00

 

Name and address of Noteholder secured hereby: Langley

Federal Credit Union

721 Lakefront Commons

Newport News, VA 23606

 

THIS DEED OF TRUST Is dated October 16, 2017 and is effective November 3, 2017, among COF North, LLC, a Virginia limited liability company, whose address Is 4198 Cox Road, Suite 200,Glen Allen, VA 23060 (“Grantor”); Langley Federal Credit Union, whose address Is 721 Lakefront Commons, Newport News, VA 23606 (referred to below sometimes as “Lender” and sometimes as “Beneficiary”); and Donald C. SCHULTZ, a resident or Virginia, whose address Is 150 West Main Street, Suite 1500, Norfolk, VA 23510 and Curtis A. BAKER, a resident of Virginia, whose address Is 721Lakefront Commons, Newport News, VA 23606 (“Grantee ,” also referred to below as “Trustee”), either of whom may act.

 

CONVEYANCE AND GRANT. For valuable consideration, Grantor conveys, transfers, encumbers and pledges and assigns to Trustee for the benefit of Lender as Beneficiary, all of Grantor’s present and future right, title, and interest in and to the following described real property, together with all existing or subsequently erected or affixed buildings, improvements and fixtures; all easements, rights of way, and appurtenances: and all rights. royalties, and profits relating to the real property, including without limitation all minerals, oil, gas. geothermal and similar matters, (the “Real Property”) located In Hanover County, Commonwealth of Virginia:

 

See Exhibit A, which is attached to this Deed of Trust and made a part of this Deed of Trust as If fully set forth herein.

 

The Real Property or its address is commonly known as 7230 Bell Creek Road, Mechanicsville, VA 23111. The Real Property Tax Map Reference No(s) ls/are 8714-64-9344.

 

CROSS COLLATERALIZATION. In addition to the Note, this Deed of Trust secures all obligations, debts and liabilities, plus interest thereon, of Grantor to Lender. or any one or more of them. as well as all claims by Lender against Grantor or any one or more of them, whether now existing or hereafter arising, whether related or unrelated to the purpose of the Note, whether voluntary or otherwise. whether due or not due, direct or indirect, determined or undetermined, absolute or contingent, liquidated or unliquidated, whether Grantor may be liable Individually or jointly with others, whether obligated as guarantor, surely, accommodation party or otherwise, and whether recovery upon such amounts may be or hereafter may become barred by any statute of limitations, and whether the obligation to repay such amounts may be or hereafter may become otherwise unenforceable.

 

FUTURE ADVANCES. In addition to the Note, this Deed of Trust secures all future advances made by Lender to Grantor whether or not the advances are made pursuant to a commitment. Specifically, without limitation, this Deed of Trust secures, in addition to the amounts specified in the Note, all future amounts Lender in its discretion may loan lo Grantor, together with all interest thereon.

 

 

 

 

DEED OF TRUST

Loan No: 5510059503301 (Continued) Page 2

 

 

 

Grantor presently, absolutely, and irrevocably assigns to Lender (also known as Beneficiary in this Deed of Trust) all of Grantor’s right, title, and Interest in and to all present and future leases of the Property and all Rents from the Property. In addition, Grantor grants to Lender a Uniform Commercial Code security interest in the Personal Property and Rents.

 

THIS DEED OF TRUST, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE (A) PAYMENT OF THE INDEBTEDNESS AND (B) PERFORMANCE OF ANY ANO ALL OBLIGATIONS UNDER THE NOTE, THE RELATED DOCUMENTS, AND THIS DEED OF TRUST. THIS DEED OF TRUST IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS:

 

PAYMENT ANO PERFORMANCE. Except as otherwise provided in this Deed of Trust, Grantor shall pay to Lender all amounts secured by this Deed of Trust as they become due, and shall strictly and in a timely manner perform all of Grantor’s obligations under the Note, this Deed of Trust, and the Related Documents.

 

POSSESSION AND MAINTENANCE OF THE PROPERTY. Grantor agrees that Grantor’s possession and use of the Property shall be governed by the following provisions:

 

Possession and Use. Until the occurrence of an Event of Default, Grantor may (1) remain In possession and control of the Property; (2) use, operate or manage the Property; and (3) acting as Lender’s agent, collect the Rents from the Property.

 

Duty to Maintain. Grantor shall maintain the Property In tenantable condition and promptly perform all repairs, replacements, and maintenance necessary to preserve Its value.

 

Compliance With Environmental Laws. Grantor represents and warrants to Lender that: (1) During the period of Grantor’s ownership of the Property, there has been no use, generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance by any person on, under, about or from the Property; (2) Grantor has no knowledge of, or reason to believe that there has been, except as previously disposed to and acknowledged by Lender in writing, (a) any breach or violation of any Environmental Laws, (b) any use, generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance on, under, about or from the Property by any prior owners or occupants or the Property, or (c) any actual or threatened litigation or claims of any kind by any person relating to such matters; and (3) Except as previously disclosed to and acknowledged by Lender in writing, (a) neither Grantor nor any tenant, contractor, agent or other authorized user of the Property shall use, generate, manufacture, store, treat, dispose of or release any Hazardous Substance on, under, about or from the Property: and (b) any such activity shall be conducted In compliance with all applicable federal, state, and local laws. regulations and ordinances, including without limitation all Environmental Laws. Grantor authorizes Lender and its agents to enter upon the Property to make such Inspections and tests, at Grantor’s expense, as Lender may deem appropriate to determine compliance or the Property with this section or he Deed of Trust. Any Inspections or tests made by Lender shall be for Lender’s purposes only and shall not be construed to create any responsibility or lability on the part of Lender to Grantor or to any other person. The representations and warranties contained herein are based on Grantor’s due diligence in Investigating the Property for Hazardous Substances. Grantor hereby (1) releases and waives any future claims against Lender for Indemnity or contribution in the event Grantor becomes liable for cleanup or other costs under any such laws; and (2) agrees to Indemnify, defend, and hold harmless Lender against any and all claims, losses, liabilities, damages. penalties, and expenses which Lender may directly or Indirectly sustain or suffer resulting from a breach of this section of the Deed of Trust or as a consequence of any use, generation, manufacture, storage, disposal, release or threatened release occurring prior to Grantor’s ownership or interest in the Property, whether or not the same was or should have been known to Grantor. The provisions of this section of the Deed of Trust, including the obligation to indemnify and defend, shall survive the payment of the indebtedness and the satisfaction and reconveyance of the lien of this Deed of Trust and shall not be affected by Lender’s acquisition of any interest in the Property whether by foreclosure or otherwise.

 

Without otherwise limiting Grantor’s covenants as provided herein, Grantor shall not without Lender’s prior written consent, remove or permit the removal of sand, gravel or topsoil, or engage In borrow pit operations, or use or permit the use of the Property as a land fill or dump, or store, burn or bury or permit the storage, burning or burying of any material or product which may result in contamination or the Property or the groundwater or which may require the Issuance of a permit by the Environmental Protection Agency or any state or local government agency governing the issuance of hazardous or toxic waste permits, or request or permit a change in zoning or land use classification, or cut or remove or suffer the cutting or removal of any trees or timber from the Property.

 

 

 

 

DEED OF TRUST

Loan  No: 5510059503301 (Continued)

Page 3

 

 

 

At its sole cost and expense, Grantor shall comply with and shall cause all occupants of the Property to comply with all Environmental Laws with respect to the disposal of Industrial refuse or waste, and/or the discharge, processing, manufacture, generation, treatment, removal, transportation, storage and handling of Hazardous Substances, and pay immediately when due the cost of removal of any such wastes or substances from, and keep the Property free of any lien imposed pursuant to such laws, rules. regulations and orders

 

Grantor shall not Install or permit to be installed in or on the Property, friable asbestos or any substance containing asbestos and deemed hazardous by federal, state or local laws, rules, regulations or orders respecting such material Grantor shall further not Install or permit the installation of any machinery, equipment or fixtures containing polychlorinated biphenyls (PCBs) on or in the Property With respect to any such material or materials currently present In or on the Property, Grantor shall promptly comply with all applicable Environmental Laws regarding the safe removal thereof, at Grantor’s expense.

 

Grantor shall indemnify and defend Lender and hold Lender harmless from and against all loss, cost, damage and expense (including, without limitation, attorneys’ fees and costs incurred in the investigation, defense and settlement of claims) that Lender may Incur as a result of or in connection with the assertion against Lender of any claim relating to the presence or removal of any Hazardous Substance, or compliance with any Environmental Law. No notice from any governmental body has ever been served upon Grantor or. to Grantor’s knowledge after due inquiry, upon any prior owner of the Property, claiming a violation of or under any Environmental Law or concerning the environmental state, condition or quality of the Property, or the use thereof, or requiring or calling attention to the need for any work, repairs, construction, removal, cleanup, alterations, demolition, renovation or installation on, or in connection with, the Property In order to comply with any Environmental Law; and upon receipt of any such notice, Grantor shall take any and all steps, and shall perform any and all actions necessary or appropriate to comply with the same at Grantor’s expense In the event Grantor fails to do so, Lender may declare this Deed of Trust to be in default.

 

Nuisance, Waste. Grantor shall not cause, conduct or permit any nuisance nor commit, permit, or suffer any stripping of or waste on or to the Property or any portion of the Property. Without limiting the generality of the foregoing, Grantor will not remove, or grant to any other party the right to remove, any timber, minerals (Including oil and gas), coal, clay. scoria, soil, gravel or rock products without Lender’s prior written consent.

 

Removal of Improvements. Grantor shall not demolish or remove any Improvements from the Real Property without Lender’s prior written consent. As a condition to the removal of any Improvements, Lender may require Grantor to make arrangements satisfactory to Lender to replace such improvements with Improvements of at least equal value.

 

Lender’s Right to Enter. Lender and Lender’s agents and representatives may enter upon the Real Property at all reasonable limes to attend to Lender’s interests and to Inspect the Real Property for purposes of Grantor’s compliance with the terms and conditions of this Deed of Trust.

 

Compliance with Governmental Requirements. Grantor shall promptly comply with all laws, ordinances, and regulations, now or hereafter in effect, of all governmental authorities applicable to the use or occupancy of the Property, Including without limitation, the Americans With Disabilities Act. Grantor may contest In good faith any such law. ordinance, or regulation and withhold compliance during any proceeding, including appropriate appeals, so long as Grantor has notified Lender In writing prior to doing so and so long as, in Lender’s sole opinion, Lender’s interests in the Property are not jeopardized. Lender may require Grantor to post adequate security or a surety bond, satisfactory to Lender. to protect Lender’s interest.

 

Duty to Protect. Grantor agrees neither to abandon nor leave the Property unattended. Grantor shall do all other acts, in addition to those acts set font above In this section, which from the character and use of the Property are necessary to protect and preserve the Property.

 

DUE ON SALE - CONSENT BY LENDER. Lender may, at Lender’s option, declare Immediately due and payable all sums secured by this Deed of Trust upon the sale or transfer, without Lender’s prior written consent, of all or any part of the Real Property, or any interest in the Real Property. A “sale or transfer” means the conveyance of Real Property or any right, title or interest In the Real Property: whether legal, beneficial or equitable: whether voluntary or involuntary; whether by outright sale, deed, installment sale contract, land contract, contract for deed, leasehold interest with a term greater than three (3) years, lease-option contract, or by sale, assignment. or transfer of any beneficial interest in or to any land trust holding title to the Real Property. or by any other method of conveyance or an interest In the Real Property However, this option shall not be exercised by Lender if such exercise Is prohibited by federal law or by Virginia law.

 

 

 

 

DEED OF TRUST

Loan  No: 5510059503301 (Continued)

Page 4

 

 

 

TAXES AND LIENS. The following provisions relating to the taxes and liens on the Property are part of this Deed of Trust

 

Payment. Grantor shall pay when due (and in all events prior to delinquency) all taxes, special taxes, assessments, charges (including water and sewer). fines and impositions levied against or on account of the Property, and shall pay when due all claims for work done on or for services rendered or material furnished to the Property. Grantor shall maintain the Property free or all liens having priority over or equal to the interest of Lender under this Deed of Trust. except for the lien of taxes and assessments not due and except as otherwise provided In this Deed of Trust.

 

Right to Contest. Grantor may withhold payment of any tax assessment, or claim In connection with a good faith dispute over the obligation to pay. so long as Lender’s interest in the Property Is not jeopardized. If a lien arises or Is filed as a result of nonpayment, Grantor shall within fifteen (15) days after the lien arises or, if a lien is filed, within fifteen (15) days after Grantor has notice of the filing, secure the discharge of the lien, or if requested by Lender, deposit with Lender cash or a sufficient corporate surety bond or other security satisfactory to Lender in an amount sufficient lo discharge the lien plus any costs and attorneys’ fees, or other charges that could accrue as a result of a foreclosure or sale under the lien. In any contest, Grantor shall defend itself and Lender and shall satisfy any adverse judgment before enforcement against the Property Grantor shall name Lender as an additional oblige under any surety bond furnished in the contest proceedings

 

Evidence of Payment. Grantor shall upon demand furnish to Lender satisfactory evidence of payment of the taxes or assessments and shall authorize the appropriate governmental official to deliver to Lender at any time a written statement of the taxes and assessments against the Property

 

Notice of Construction. Grantor shall notify Lender at least fifteen (15) days before any work is commenced, any services are furnished, or any materials are supplied to the Property, If any mechanic’s lien, materialmen’s lien, or other lien could be asserted on account of the work, services, or materials and the cost exceeds $2,500 00 Grantor will upon request of Lender furnish to Lender advance assurances satisfactory to Lender that Grantor can and will pay the cost of such improvements.

 

PROPERTY DAMAGE INSURANCE. The following provisions relating to insuring the Property are a part of this Deed of Trust

 

Maintenance of Insurance. Grantor shall procure and maintain policies of fire Insurance with standard extended coverage endorsements on a replacement basis for the full Insurable value covering all Improvements on the Real Property in an amount sufficient to avoid application of any coinsurance clause, and with a standard mortgagee clause in favor of Lender. Grantor shall also procure and maintain comprehensive general liability insurance in such coverage amounts as Lender may request with Trustee and Lender being named as additional Insureds in such liability insurance policies. Additionally, Grantor shall maintain such other Insurance, including but not limited to hazard, business Interruption, and boiler Insurance, as Lender may require. Policies shall be written in form, amounts, coverages and basis acceptable to Lender and issued by a company or companies acceptable to Lender. All policies shall provide that the policies shall not be invalidated by any waiver of the right of subrogation by any insured and shall provide that the carrier shall have no right to be subrogated to Lender. Grantor, upon request of Lender, will deliver to Lender from time to lime the policies or certificates of Insurance in form satisfactory to Lender, including stipulations that coverages will not be cancelled or diminished without at least thirty (30) days prior written notice to Lender. Each insurance policy also shall include an endorsement providing that coverage in favor of Lender will not be impaired in any way by any act, omission or default of Grantor or any other person. Should the Real Property be located in an area designated by the Administrator of the Federal Emergency Management Agency as a special Rood hazard area, Grantor agrees to obtain and maintain Federal Flood Insurance, if available for the full unpaid principal balance of the loan and any prior liens on the property securing the loan, up to the maximum policy limits set under the National Flood Insurance Program, or as otherwise required by Lender, and to maintain such insurance for the term of the loan.

 

 

 

 

DEED OF TRUST

Loan  No: 5510059503301 (Continued)

Page 5

 

 

 

Application of Proceeds. Grantor shall promptly notify Lender of any loss or damage to the Property if the estimated cost of repair or replacement exceeds $1,500.00 Lender may make proof of loss if Grantor fails to do so within fifteen (15) days of the casualty. Whether or not Lender’s security is impaired, Lender may, at Lender’s election, receive and retain the proceeds of any insurance and apply the proceeds to the reduction of the indebtedness, payment of any lien affecting the Property, or the restoration and repair of the Property. If Lender elects to apply the proceeds to restoration and repair, Grantor shall repair or replace the damaged or destroyed Improvements in a manner satisfactory to Lender. Lender shall, upon satisfactory proof of such expenditure, pay or reimburse Grantor from the proceeds for the reasonable cost of repair or restoration if Grantor Is not In default under this Deed of Trust. Any proceeds which have not been disbursed within 180 days after their receipt and which Lender has not committed to the repair or restoration of the Property shall be used first to pay any amount owing to Lender under this Deed of Trust, then to pay accrued Interest and the remainder, if any, shall be applied to the principal balance of the Indebtedness. If Lender holds any proceeds after payment In full of the Indebtedness, such proceeds shall be paid to Grantor as Grantor’s interests may appear

 

Unexpired Insurance at Sale. Any unexpired insurance shall inure to the benefit of, and pass to, the purchaser of the Property covered by this Deed of Trust at any trustee’s sale or other sale held under the provisions of this Deed of Trust or at any foreclosure sale of such Property

 

Grantor’s Report on Insurance. Upon request of Lender, however not more than once a year, Grantor shall furnish to Lender a report on each existing policy of insurance showing. (1) the name of the insurer; (2) the risks insured; (3) the amount of the policy. (4) the property insured, the then current replacement value of such property, and the manner of determining that value; and (5) the expiration date or the policy. Grantor shall, upon request of Lender, have an independent appraiser satisfactory to Lender determine the cash value replacement cost of the Property.

 

LENDER’S EXPENDITURES. If any action or proceeding is commenced that would materially affect Lender’s Interest in the Property or if Grantor fails to comply with any provision of this Deed of Trust or any Related Documents, including but not limited to Grantor’s failure to discharge or pay when due any amounts Grantor is required to discharge or pay under this Deed of Trust or any Related Documents. Lender on Grantor’s behalf may (but shall not be obligated to) take any action that Lender deems appropriate, including but not limited to discharging or paying all taxes, liens, security interests, encumbrances and other claims. at any time levied or placed on the Property and paying all costs for insuring, maintaining and preserving the Property. All such expenditures Incurred or paid by Lender for such purposes will then bear interest at the rate charged under the Note from the date Incurred or paid by Lender to the date of repayment by Grantor. All such expenses will become a part of the Indebtedness and, at Lender’s option, will (A) be payable on demand; (B) be added to the balance of the Note and be apportioned among and be payable with any installment payments to become due during either (1) the term of any applicable Insurance policy; or (2) the remaining term of the Note; or (C) be treated as a balloon payment which will be due and payable at the Note’s maturity. The Deed of Trust also will secure payment or these amounts. Such right shall be in addition to all other rights and remedies to which Lender may be entitled upon Default.

 

WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of the Property are a part of this Deed of Trust:

 

Title. Grantor warrants generally that: (a) Grantor holds good and marketable title to the Property In fee simple, free and clear of all liens and encumbrances other than those set forth in the Real Property description or in any title insurance policy, title report, or final title opinion issued in favor of, and accepted by, Lender in connection with this Deed of Trust, and (b) Grantor has the full right, power, and authority to execute and deliver this Deed of Trust to Lender.

 

Defense of Title. Subject to the exception in the paragraph above, Grantor warrants and will forever defend the title to the Property against the lawful claims or all persons. In the event any action or proceeding is commenced that questions Grantor’s title or the interest of Trustee or Lender under this Deed of Trust. Grantor shall defend the action at Grantor’s expense. Grantor may be the nominal party in such proceeding, but Lender shall be entitled to participate in the proceeding and to be represented In the proceeding by counsel of Lender’s own choice, and Grantor will deliver, or cause to be delivered, to Lender such instruments as Lender may request from time to permit such participation.

 

 

 

 

DEED OF TRUST

Loan  No: 5510059503301 (Continued)

Page 6

 

 

 

Compliance With Laws. Grantor warrants that the Property and Grantor’s use of the Property complies with all existing applicable laws, ordinances, and regulations of governmental authorities.

 

Survival of Representations and Warranties. All representations, warranties, and agreements made by Grantor in this Deed of Trust shall survive the execution and delivery of this Deed of Trust, shall be continuing in nature, and shall remain in full force and effect until such time as Grantor’s Indebtedness shall be paid in full.

 

CONDEMNATION. The following provisions relating to condemnation proceedings are a part of this Deed of Trust

 

Notice of Proceedings. Grantor shall immediately notify Lender In writing should all or any part of the Property become subject to any condemnation or expropriation proceedings or other similar proceedings. Including without limitation. any condemnation, confiscation, eminent domain inverse condemnation or temporary requisition or taking of the mortgaged Property, or any part or parts of the Property. Grantor further agrees to promptly take such steps as may be necessary and proper within Lender’s sole judgment and at Grantor’s expense, to defend any such condemnation or expropriation proceedings and obtain the proceeds derived from such proceedings. Grantor shall not agree to any settlement or compromise or any condemnation or expropriation claim without Lender’s prior written consent

 

Lender’s Participation. Lender may, at Lender’s sole option, elect to participate in any such condemnation or expropriation proceedings and be represented by counsel of Lender’s choice. Grantor agrees to provide Lender with such documentation as Lender may request to permit Lender to so participate and to reimburse Lender for Lender’s costs associated with Lender’s participation, including Lender’s reasonable attorneys’ fees.

 

Conduct of Proceedings. If Grantor falls to defend any such condemnation or expropriation proceedings to Lender’s satisfaction, Lender may undertake the defense of such a proceeding for and on behalf of Grantor. To this end, Grantor irrevocably appoints Lender as Grantor’s agent and attorney-in-fact, such agency being coupled with an interest. to bring. Defend, adjudicate, settle, or otherwise compromise such condemnation or expropriation claims: it being understood, however, that, unless one or more Events of Default (other than the condemnation or expropriation of the Property) then exists under this Deed of Trust. Lender will not agree to any final settlement or compromise of any such condemnation or expropriation claim without Grantor’s prior approval, which approval shall not be unreasonably withheld.

 

Application of Net Proceeds. Lender shall have the right to receive all proceeds derived or to be derived from the condemnation, expropriation, confiscation, eminent domain. inverse condemnation, or any permanent or temporary requisition or taking of the Property, or any par1 or parts of the Property (“condemnation proceeds”) In the event that Grantor should receive any such condemnation proceeds, Grantor agrees to immediately turn over and to pay such proceeds to Lender. All condemnation proceeds, which are received by, or which are payable to either Grantor or Lender, shall be applied, at Lender’s sole option and discretion, and in such manner as Lender may determine (after payment of all reasonable costs, expenses and attorneys’ fees necessarily paid or incurred by Grantor and/or Lender), for the purpose of: (a) replacing or restoring the condemned, expropriated, confiscated, or taken Property, or (b) reducing the then outstanding balance of the indebtedness, together with interest thereon, with such payments being applied in the manner provided in this Deed of Trust.

 

Lender’s receipt of such condemnation proceeds and the application of such proceeds as provided in this Deed of Trust shall not affect the lien of this Deed of Trust.

 

IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following provisions relating to governmental taxes, fees and charges are a part of this Deed of Trust.

 

Current Taxes, Fees and Charges. Upon request by Lender, Grantor shall execute such documents in addition to this Deed of Trust and take whatever other action is requested by Lender to perfect and continue Lender’s lien on the Real Property. Grantor shall reimburse Lender for all taxes, as described below, together with all expenses incurred in recording, perfecting or continuing this Deed of Trust. Including without limitation all taxes, fees, documentary stamps, and other charges for recording or registering this Deed of Trust.

 

 

 

 

DEED OF TRUST

Loan  No: 5510059503301 (Continued)

Page 7

 

 

 

Taxes. The following shall constitute taxes lo which this section applies: (1) a specific tax upon this type or Deed of Trust or upon all or any part of the Indebtedness secured by this Deed of Trust; (2) a specific tax on Grantor which Grantor is authorized or required to deduct from payments on the indebtedness secured by this type of Deed of Trust; (3) a tax on this type of Deed of Trust chargeable against the Lender or the holder of the Note; and (4) a specific tax on all or any portion of the indebtedness or on payments of principal and Interest made by Grantor

 

Subsequent Taxes. If any tax to which this section applies is enacted subsequent to the date of this Deed of Trust, this event shall have the same effect as an Event of Default and Lender may exercise any or all of its available remedies for an Event of Default as provided below unless Grantor either (1) pays the tax before It becomes delinquent, or (2) contests the tax as provided above in the Taxes and Liens section and deposits with Lender cash or a sufficient corporate surety bond or other security satisfactory to Lender.

 

SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to this Deed of Trust as a security agreement are a part of this Deed of Trust.

 

Security Agreement. This instrument shall constitute a Security Agreement to the extent any of the Property constitutes fixtures, and Lender shall have all of the rights of a secured party under the Uniform Commercial Code as amended from time to time

 

Security Interest. Upon request by Lender. Grantor shall take whatever action is requested by Lender to perfect and continue Lender’s security interest in the Rents and Personal Property. In addition to recording this Deed of Trust in the real property records, Lender may, at any time and without further authorization from Grantor, file executed counterparts. copies or reproductions of this Deed of Trust as a financing statement. Grantor shall reimburse Lender for all expenses incurred in perfecting or continuing this security Interest. Upon default, Grantor shall not remove, sever or detach the Personal Property from the Property. Upon default, Grantor shall assemble any Personal Property not affixed to the Property in a manner and at a place convenient to Lender and make it available to Lender promptly following Lender’s request to the extent permitted by applicable law.

 

Addresses. The mailing addresses of Grantor (debtor) and Lender (secured party) from which information concerning the security interest granted by this Deed of Trust may be obtained (each as required by the Uniform Commercial Code) are as stated on the first page of this Deed of Trust.

 

FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions relating to further assurances and attorney in-fact are a part of this Deed of Trust:

 

Further Assurances. At any lime. and from time to time, upon request of Lender, Grantor will make, execute and deliver, or will cause to be made, executed or delivered, to Lender or to Lender’s designee, and when requested by Lender, cause to be filed, recorded, refiled, or rerecorded, as the case may be, at such times and in such offices and places as Lender may deem appropriate, any and all such mortgages, deeds of trust, security deeds, security agreements, financing statements, continuation statements, instruments or further assurance, certificates, and other documents as may, in the sole opinion of Lender, be necessary or desirable in order to effectuate, complete, perfect, continue, or preserve (1) Grantor’s obligations under the Note, this Deed of Trust, and the Related Documents, and (2) the liens and security Interests created by this Deed of Trust as first and prior liens on the Property, whether now owned or hereafter acquired by Grantor. Unless prohibited by law or Lender agrees to the contrary in writing, Grantor shall reimburse Lender for all costs and expenses incurred in connection with the matters referred to in this paragraph.

 

Attorney-In-Fact. If Grantor fails to do any of the things referred to in the preceding paragraph, Lender may do so for and in the name of Grantor and at Grantor’s expense. For such purposes, Grantor hereby irrevocably appoints Lender as Grantor’s attorney-in-fact for the purpose of making, executing, delivering, filing, recording, and doing all other things as may be necessary or desirable, In Lender’s sole opinion, to accomplish the matters referred to in the preceding paragraph.

 

FULL PERFORMANCE. If Grantor pays all the Indebtedness, including without limitation all future advances, when due, and otherwise performs all the obligations imposed upon Grantor under this Deed of Trust, Lender shall execute and deliver to Trustee a request for full reconveyance and shall execute and deliver to Grantor suitable statements of termination of any financing statement on file evidencing Lender’s security interest In the Rents and the Personal Property. Any reconveyance fee required by law shall be paid by Grantor, if permitted by applicable law.

 

 

 

 

DEED OF TRUST

Loan  No: 5510059503301 (Continued)

Page 8

 

 

 

EVENTS OF DEFAULT. Each of the following, at Lender’s option shall constitute an Event of Default under this Deed of Trust Payment Default. Grantor fails to make any payment when due under the Indebtedness.

 

Other Defaults. Grantor fails to comply with or to perform any other term, obligation, covenant or condition contained in this Deed of Trust or in any of the Related Documents or to comply with or to perform any term, obligation, covenant or condition contained in any other agreement between Lender and Grantor.

 

Compliance Default. Failure to comply with any other term, obligation, covenant or condition contained in this Deed of Trust, the Note or in any of the Related Documents

 

Default on Other Payments. Failure of Grantor within the time required by this Deed of Trust to make any payment for taxes or insurance, or any other payment necessary to prevent filing of or to effect discharge of any lien.

 

Environmental Default. Failure of any party to comply with or perform when due any term, obligation, covenant or condition contained in any environmental agreement executed in connection with the Property.

 

False Statements. Any warranty. representation or statement made or furnished to Lender by Grantor or on Grantor’s behalf. or made by Guarantor or any other guarantor. endorser, surety, or accommodation party, under this Deed of Trust or the Related Documents in connection with the obtaining of the Indebtedness evidenced by the Note or any security document directly or indirectly securing repayment of the Note is false or misleading in any material respect, either now or at the time made or furnished or becomes false or misleading at any time thereafter.

 

Defective Collateralization. This Deed of Trust or any of the Related Documents ceases to be in full force and effect (Including failure of any collateral document to create a valid and perfected security Interest or lien) at any lime and for any reason.

 

Death or Insolvency. The dissolution of Grantor (regardless of whether election to continue is made), any member withdraws from the limited liability company, or any other termination of Grantor’s existence as a going business or the death of any member, the insolvency of Grantor, the appointment of a receiver for any part of Grantor’s property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement or any proceeding under any bankruptcy or insolvency laws by or against Grantor.

 

Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Grantor or by any governmental agency against any property securing the Indebtedness. This includes a garnishment of any of Grantor’s accounts, Including deposit accounts, with Lender. However, this Event of Default shall not apply if there is a good faith dispute by Grantor as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Grantor gives Lender written notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole discretion, as being an adequate reserve or bond for the dispute.

 

Execution; Attachment. Any execution or attachment is levied against the Property, and such execution or attachment Is not set aside, discharged or stayed within thirty (30) days after the same is levied.

 

Change In Zoning or Public Restriction. Any change in any zoning ordinance or regulation or any other public restriction Is enacted, adopted or implemented, that limits or defines the uses which may be made of the Property such that the present or intended use of the Property, as specified In the Related Documents, would be in violation of such zoning ordinance or regulation or public restriction, as changed.

 

Default Under Other Lien Documents. A default occurs under any other mortgage, deed of trust or security agreement covering all or any portion or the Property.

 

Judgment. Unless adequately covered by Insurance in the opinion of Lender, the entry of a final judgment for the payment of money involving more than ten thousand dollars ($10,000.00) against Grantor and the failure by Grantor to discharge the same, or cause it to be discharged, or bonded off to Lender’s satisfaction, within thirty (30) days from the date of the order, decree or process under which or pursuant to which such judgment was entered.

 

 

 

 

DEED OF TRUST

Loan  No: 5510059503301 (Continued)

Page 9

 

 

 

Breach of Other Agreement. Any breach by Grantor under the terms of any other agreement between Grantor and Lender that Is not remedied within any grace period provided therein, including without limitation any agreement concerning any Indebtedness or other obligation of Grantor to Lender, whether existing now or later.

 

Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor, or any other guarantor. Endorser, surety, or accommodation party or any of the Indebtedness or any Guarantor, or any other guarantor, endorser. surety or accommodation party dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any Guaranty of the Indebtedness Adverse Change. A material adverse change occurs in Grantor’s financial condition, or Lender believes the prospect of payment or performance of the Indebtedness Is impaired.

 

Right to Cure. If any default, other than a default in payment is curable and if Grantor has not been given a notice of a breach of the same provision of this Deed of Trust within the preceding six (6) months, it may be cured if Grantor, after Lender sends written notice to Grantor demanding cure of such default: (1) cures the default within thirty (30) days, or (2) if the cure requires more than thirty (30) days, immediately initiates steps which Lender deems in Lender’s sole discretion to be sufficient to cure the default and thereafter continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical.

 

RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under this Deed of Trust, at any time thereafter, Trustee or Lender may exercise any one or more of the following rights and remedies:

 

Election of Remedies. Election by Lender to pursue any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Grantor under this Deed of Trust, after Grantor’s failure to perform, shall not affect Lender’s right to declare a default and exercise its remedies.

 

Accelerate Indebtedness. Lender shall have the right at its option without notice to Grantor to declare the entire Indebtedness immediately due and payable including any prepayment penalty which Grantor would be required to pay. This right is in addition to all other rights given to holders of promissory notes under Title 55 of the Code of Virginia.

 

Foreclosure. With respect to all or any part of the Real Property, the Trustee shall have the right to foreclose by notice and sale, and Lender shall have the right to foreclose by judicial foreclosure, in either case in accordance with and to the full extent provided by appl cable law. In any foreclosure by notice and sale, the advertisement of sale by the Trustee shall be published once a week for two successive weeks in a newspaper having general circulation in a city or county where the Real Property, or any part of it, is located. Grantor expressly waives and releases any requirement or obligation that Lender or Trustee present evidence or otherwise proceed before any court or other judicial or quasi-judicial body as a precondition to or otherwise Incident to the exercise of the powers of sale authorized by this Deed of Trust. The proceeds of sale shall be applied by Trustee as follows: (a) first, to pay all proper advertising expenses, auctioneer’s allowance, the expenses, if any, required to correct any irregularity in the title, premium for Trustee’s bond, auditor’s fee, attorneys’ fees, and all other expenses of sale incurred In or about the protection and execution of this Deed of Trust, and all moneys advanced for taxes, assessments, insurance, and with interest thereon at the rate provided In the Note, and all taxes and assessments due upon the Property at time of sale, and to retain as compensation a reasonable Trustee’s commission: (b) second, to pay the whole amount then remaining unpaid on the Indebtedness; (c) third, to pay liens of record against the Property according to their priority of lien and to the extent that funds remaining in Trustee’s hands are available; and (d) last, to pay the remainder of the proceeds, if any, to Grantor, Grantor’s heirs, personal representatives, successors or assigns upon the delivery and surrender to the purchaser of possession of the Property, less costs and expenses of obtaining possession

 

UCC Remedies. With respect to all or any part of the Personal Property, Lender shall have all the rights and remedies of a secured party under the Uniform Commercial Code.

 

 

 

 

DEED OF TRUST

Loan  No: 5510059503301 (Continued)

Page 10

 

 

 

Collect Rents. Lender shall have the right, without notice to Grantor to take possession of and manage the Property and collect the Rents, including amounts past due and unpaid, and apply the net proceeds, over and above Lender’s costs, against the indebtedness. In furtherance of this right, Lender may require any tenant or other user of the Property to make payments of rent or use fees directly to Lender. If the Rents are collected by Lender, then Grantor irrevocably designates Lender as Grantor’s attorney-ln-fact to endorse instruments received in payment thereof in the name of Grantor and to negotiate the same and collect the proceeds. Payments by tenants or other users to Lender in response to Lender’s demand shall satisfy the obligations for which the payments are made, whether or not any proper grounds for the demand existed. Lender may exercise its rights under this subparagraph either in person, by agent, or through a receiver.

 

Appoint Receiver. Lender shall have the right to have a receiver appointed to take possession of all or any part of the Property, with the power to protect and preserve the Property, to operate the Property preceding foreclosure or sale, and to collect the Rents from the Property and apply the proceeds, over and above the cost of the receivership, against the Indebtedness. The receiver may serve without bond if permitted by law. Lender’s right to the appointment of a receiver shall exist whether or not the apparent value of the Property exceeds the Indebtedness by a substantial amount. Employment by Lender shall not disqualify a person from serving as a receiver.

 

Tenancy at Sufferance. If Grantor remains in possession of the Property after the Property is sold as provided above or Lender otherwise becomes entitled to possession of the Property upon default of Grantor, Grantor shall become a tenant at sufferance of Lender or the purchaser of the Property and shall, at Lender’s option, either (1) pay a reasonable rental for the use or the Property, or (2) vacate the Property immediately upon the demand of Lender.

 

Other Remedies. Trustee or Lender shall have any other right or remedy provided in this Deed of Trust or the Note or available at law or in equity.

 

Notice of Sale. Lender shall give Grantor reasonable notice of the time and place of any public sale of the Personal Property or of the time alter which any private sale or other intended disposition of the Personal Property is to be made. Reasonable notice shall mean notice given at least fourteen (14) days before the time of the sale or disposition. Any sale of the Personal Property may be made in conjunction with any sale of the Real Property

 

Sale of the Property. To the extent permitted by applicable law, Grantor hereby waives any and all rights to have the Property marshalled. In exercising its rights and remedies, the Trustee or Lender shall be free to sell all or any part of the Property together or separately, in one sale or by separate sales. Lender shall be entitled to bid at any public sale on all or any portion of the Property.

 

Attorneys’ Fees; Expenses. If Lender institutes any suit or action to enforce any of the terms of this Deed of Trust, Lender shall be entitled to recover such sum as the court may adjudge reasonable as attorneys• fees at trial and upon any appeal. Whether or not any court action is involved, and to the extent not prohibited by law, all reasonable expenses Lender incurs that in Lender’s opinion are necessary at any time for the protection of Its interest or the enforcement of its rights shall become a part of the Indebtedness payable on demand and shall bear interest at the Note rate from the date of the expenditure until repaid. Expenses covered by this paragraph include, without limitation, however subject to any limits under applicable law, Lender’s attorneys’ fees and Lender’s legal expenses. whether or not there is a lawsuit, including attorneys’ fees and expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services, the cost of searching records, obtaining title reports (including foreclosure reports), surveyors’ reports, and appraisal fees, title insurance, a reasonable Trustee’s commission and reasonable attorney fees incurred by the Trustee In performing its duties under the Deed of Trust, to the extent permitted by applicable law. Grantor also will pay any court costs, In addition to all other sums provided by law.

 

Rights of Trustee. Trustee shall have all of the rights and duties or Lender as set forth in this section

 

POWERS AND OBLIGATIONS OF TRUSTEE. The following provisions relating to the powers and obligations or Trustee are part of this Deed of Trust:

 

 

 

 

DEED OF TRUST

Loan  No: 5510059503301 (Continued)

Page 11

 

 

 

Powers of Trustee. In addition to all powers of Trustee arising as a matter of law, Trustee (and each of them if more than one) shall have the power to take the following actions with respect to the Property upon the written request of Lender and Grantor (a) join in preparing and filing a map or plat of the Real Property, including the dedication of streets or other rights to the public. (b) join in granting any easement or creating any restriction on the Real Property, and (c) join In any subordination or other agreement affecting this Deed of Trust or the interest of Lender under this Deed of Trust

 

Obligations to Notify. Trustee shall not be obligated to notify any other party or a pending sale under any other trust deed or lien, or of any action or proceeding In which Grantor, Lender, or Trustee shall be a party, unless the action or proceeding Is brought by Trustee

 

Trustee. Trustee shall meet all qualifications required for Trustee under applicable law. In addition to the rights and remedies set forth above with respect to all or any part of the Property, the Trustee shall have the right to foreclose by notice and sale. and Lender shall have the right to foreclose by judicial foreclosure, in either case in accordance with and to the full extent provided by applicable law

 

Successor Trustee. Lender, at Lender’s option, at any time hereafter and without prior notice and without specifying any reason. may from time to time appoint a successor Trustee to any Trustee appointed under this Deed of Trust by an instrument executed and acknowledged by Lender and recorded In the office in the jurisdiction where this Deed of Trust has been recorded The instrument shall contain, In addition to all other matters required by state law, the names of the original Lender, Trustee, and Grantor, the book and page where this Deed of Trust is recorded, and the name of the successor trustee and the county, city or town in which he or she resides, and the instrument shall be executed and acknowledged by Lender or its successors in interest. The successor trustee, without conveyance of the Property, shall succeed to all the title, power, and duties conferred upon the Trustee In this Deed of Trust and by applicable law This procedure for substitution of Trustee shall govern to the exclusion of all other provisions for substitution

 

Power to Act Separately. If more than one Trustee is named in this Deed of Trust, any Trustee may act alone, without the joinder of any other Trustee, to exercise any or all the powers given to the Trustees collectively in this Deed of Trust or by applicable law.

 

NOTICES. Any notice required to be given under this Deed of Trust, including without limitation any notice of default and any notice or sale shall be given in writing, and shall be effective when actually delivered, if hand delivered, when actually received by telefacsimile (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, if mailed, when deposited in the United States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Deed of Trust All copies or notices of foreclosure from the holder of any lien which has priority over this Deed of Trust shall be sent to Lender’s address, as shown near the beginning of this Deed of Trust. Any party may change Its address for notices under this Deed of Trust by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party’s address. For notice purposes, Grantor agrees to keep Lender Informed at all times of Grantor’s current address. Unless otherwise provided or required by law, if there is more than one Grantor, any notice given by Lender to any Grantor is deemed to be notice given to all Grantors.

 

MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Deed of Trust:

 

Amendments. This Deed of Trust, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Deed of Trust. No alteration of or amendment to this Deed of Trust shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment.

 

Annual Reports. If the Property is used for purposes other than Grantor’s residence, Grantor shall furnish to Lender, upon request, a certified statement of net operating income received from the Property during Grantor’s previous fiscal year in such form and detail as Lender shall require. “Net operating income” shall mean all cash receipts from the Property less all cash expenditures made in connection with the operation of the Property.

 

Caption Headings. Caption headings in this Deed of Trust are for convenience purposes only and are not to be used to interpret or define the provisions of this Deed of Trust.

 

 

 

 

DEED OF TRUST

Loan  No: 5510059503301 (Continued)

Page 12

 

 

 

Merger. There shall be no merger of the interest or estate created by this Deed of Trust with any other interest or estate in the Property at any time held by or for the benefit of Lender in any capacity. without the written consent of Lender.

 

Governing Law. This Dead of Trust will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of the Commonwealth of Virginia without regard to its conflicts of law provisions. This Deed of Trust has been accepted by Lender in the Commonwealth of Virginia.

 

Choice of Venue. If there is a lawsuit. Grantor agrees upon Lender’s request to submit to the jurisdiction of the applicable courts for the City of Newport News, Commonwealth of Virginia.

 

No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Deed of Trust unless such waiver is given in writing and Signed by Lender. No delay or omission on the part or Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Deed of Trust shall not prejudice or constitute a waiver of Lender’s right otherwise to demand strict compliance with that provision at any other provision of this Deed of Trust. No poor waiver by Lender, nor any course of dealing between ender and Grantor, shall constitute a waiver of any of Lender’s rights or of any of Grantor’s obligations as to any future transactions. Whenever the consent of Lender Is required under this Deed of Trust, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent Instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Lender.

 

Severability. If a court of competent jurisdiction finds any provision of this Deed of Trust to be illegal, invalid, or unenforceable as to any circumstance, that finding shall not make the offending provision illegal. Invalid, or unenforceable as to any other circumstance. If feasible. the offending provision shall be considered modified so that it becomes legal, valid and enforceable. If the offending provision cannot be so modified. it shall be considered deleted from this Deed of Trust Unless otherwise required by law, the illegally, invalidity, or unenforceability or any provision of this Deed of Trust shall not affect the legality, validity or enforceability of any other provision of this Deed of Trust

 

Non-liability of Lender. The relationship between Grantor and Lender created by this Deed of Trust is strictly a debtor and creditor relationship and not fiduciary in nature, nor is the relationship to be construed as creating any partnership or joint venture between Lender and Grantor. Grantor is exercising Grantor’s own Judgment with respect to Grantor’s business. All information supplied to Lender is for Lender’s protection only and no other party is entitled to rely on such Information. There is no duty for ender to review, inspect, supervise or Inform Grantor of any matter with respect to Grantor’s business. Lender and Grantor Intend that Lender may reasonably rely on all information supplied by Grantor to ender, together with all representations and warranties given by Grantor to Lender, without investigation or confirmation by Lender and that any investigation or failure to investigate will not diminish Lender’s right to so rely.

 

Sole Discretion of ender. Whenever Lender’s consent or approval Is required under this Deed or Trust. the decision as to whether or not to consent or approve shall be in the sole and exclusive discretion of Lender and Lender’s decision shall be final and conclusive.

 

Successors and Assigns. Subject to any limitations stated In this Deed of Trust on transfer or Grantor’s interest. this Deed of Trust shall be binding upon and inure to the benefit or the parties, their heirs, personal representatives, successors and assigns. If ownership of the Property becomes vested in a person other than Grantor, Lender. without notice to Grantor, may deal with Grantor’s successors with reference to this Deed of Trust and the Indebtedness by way of forbearance or extension without releasing Grantor from the obligations of this Deed of Trust or liability under the Indebtedness.

 

Time Is of the Essence. Time ls of the essence in the performance of this Deed of Trust.

 

Waiver of Homestead Exemption. Grantor hereby releases and waives all rights and benefits of the homestead exemption laws or the Commonwealth of Virginia as to all Indebtedness secured by this Deed of Trust.

 

 

 

 

DEED OF TRUST

Loan  No: 5510059503301 (Continued)

Page 13

 

 

 

DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Deed of Trust Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States or America Words and terms used 1n the singular shall include the plural, and the plural shall include the singular, as the context may require Words and terms not otherwise defined in this Deed of Trust shall have the meanings attributed to such terms In the Uniform Commercial Code:

 

Beneficiary. The word “Beneficiary” means Langley Federal Credit Union. and Its successors and assigns.

 

Borrower. The word “Borrower” means COF North. LLC, a Virginia Limited Liability Company and Includes an co- signers and co-makers signing the Note and all their successors and assigns.

 

Deed of Trust. The words “Deed of Trust’ mean this Deed of Trust among Grantor, Lender, and Trustee. Default. The word “Default” means the Default set forth in this Deed of Trust In the section titled “Default”.

 

Environmental Laws. The words “Environmental Laws” mean any and all state, federal and local statutes, regulations and Ordinances relating to the protection of human health or the environment, including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act or 1980, as amended, 42 U.S.C. Section 9601, et seq (“CERCLA”), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 (“SARA”) the Hazardous Materials Transportation Act. 49 U.S C Section 1801, et seq., the Resource Conservation and Recovery Act. 42 U S C Section 6901, et seq, or other applicable state or federal laws, rules, or regulations adopted pursuant thereto.

 

Event of Default. The words “Event or Default” mean individually, collectively. and interchangeably any of the events or default set forth in this Deed of Trust in the events of default section of this Deed of Trust.

 

Gran or. The word “Grantor’’ means COF North, LLC, a Virginia Limited Liability Company.

 

Guarantor. The word “Guarantor’ means any guarantor, surety, or accommodation party of any or all or the Indebtedness, and, in each case, the successors, assigns, heirs, personal representatives, executors and administrators of any guarantor, surety, or accommodation party.

 

Guaranty. The word “Guaranty” means the guaranty from Guarantor, or any other guarantor, endorser, surety, or accommodation party to Lender, including without limitation a guaranty of all or part of the Note.

 

Hazardous Substances. The words “Hazardous Substances” mean materials that, because of their quantity. concentration or physical, chemical or infectious characteristics, may cause or pose a present or potential hazard to human health or the environment when improperly used, treated, stored, disposed of, generated, manufactured, transported or otherwise handled. The words “Hazardous Substances” are used in their very broadest sense and include without limitation any and all hazardous toxic substances, materials or waste as defined by or listed under the Environmental Laws. The term “Hazardous Substances” also Includes. without limitation, petroleum and petroleum by-products or any fraction thereof and asbestos.

 

Improvements. The word “Improvements” means all existing and future improvements, buildings. structures, mobile homes affixed on the Real Property, facilities, additions, replacements and other construction on the Real Property

 

Indebtedness. The word “Indebtedness” means all principal, interest, and other amounts. costs and expenses payable under the Note or Related Documents, together with au renewals of, extensions of, modifications of. consolidations of and substitutions for the Note or Related Documents and any amounts e1Cpended or advanced by Lender to discharge Grantor’s obligations or expenses Incurred by Trustee or Lender to enforce Grantor’s obligations under this Deed of Trust, together with Interest on such amounts as provided in this Deed of Trust. Specifically, without limitation. Indebtedness includes the future advances set forth in the Future Advances provision, together with all interest thereon and an amounts that may be indirectly secured by the Cross-Collateralization provision of this Deed of Trust.

 

Lender. The word “Lender’’ means Langley Federal Credit Union, its successors and assigns.

 

 

 

 

DEED OF TRUST

Loan  No: 5510059503301 (Continued)

Page 14

 

 

 

Note. The word “Note” means the promissory note dated November 3. 2017, in the original principal amount of $8,600,000.00 from Grantor to Lender together with all modifications of and renewals, replacements, and substitutions for the promissory note or agreement. The maturity date of the Note is December 1, 2027. NOTICE TO GRANTOR: THE NOTE CONTAINS A VARIABLE INTEREST RATE.

 

Personal Property. The words “Personal Property” mean all equipment, fixtures, and other articles of personal property now or hereafter owned by Grantor. and now or hereafter attached or affixed to the Real Property; together with all accessions, parts, and additions to, all replacements of, and all substitutions for, any of such property; and together with all proceeds (including without limitation all Insurance proceeds and refunds of premiums) from any sale or other disposition of the Property

 

Property. The word “Property’’ means collectively the Real Property and the Personal Property.

 

Real Property. The words “Real Property” mean the real property, interests and rights, as further described in this Deed of Trust

 

Related Documents. The words “Related Documents• mean all promissory notes, credit agreements, loan agreements, environmental agreements. guaranties. security agreements, mortgages, deeds of trust. security deeds, collateral mortgages, and all other Instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness

 

Rents. The word “Rents” means all present and future rents, revenues, income. Issues, royalties, profits, and other benefits derived from the Property.

 

Trustee. The word” Trustee” means Donald C SCHULTZ. whose address Is 150 West Main Street, Suite 1500, Norfolk. VA 23510 and Curtis A BAKER, whose address Is 721 Lakefront Commons, Newport News, VA 23606 and any substitute or successor trustees If more than one person is named as trustee, the word “Trustee” means each such person.

 

GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS DEED OF TRUST, AND GRANTOR AGREES TO ITS TERMS.

 

THIS DEED OF TRUST IS GIVEN UNDER SEAL ANO IT IS INTENDED THAT THIS DEED OF TRUST IS ANO SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW.

 

 

 

 

DEED OF TRUST

Loan  No: 5510059503301 (Continued)

Page 15

 

 

 

GRANTDR:    
   
COF NORTH, LLC, A VIRGINIA LIMITED LIABILITY COMPANY
   
By: COF NORTH MANAGEMENT, A VIRGINIA LIMITED LIABILITY COMPANY, ITS MANAGER
     
By: /s/ Mark W. Claud, (Seal)  
     
Mark W. Claud, Manager    

 

 

 

INDIVIDUAL ACKNOWLEDGMENT

 

STATE OF VIRGINIA

COUNTY OF HENRICO

 

On this 16th day of October, 2017, before me, the undersigned Notary Public personally appeared Mark W. Claud, Manager of COF North Management, LLC, a Virginia limited liability company, agent of the limited liability company that executed the Deed of Trust and acknowledged the Deed of Trust to be the free and voluntary act and deed of the limited liability company, by authority of statute, its articles of organization or its operating agreement, for the uses and purposes therein mentioned, on an oath stated that he or she is authorized to execute this Deed of Trust and in fact executed the Deed of Trust on behalf of the limited liability company.

 

By: /s/ Lean N. Zeigler   Residing at
Notary Public in and for   Richmond, VA
State of Virginia   My commission expires 9/30/19
    My registration number is 14070

 

 

 

 

DEED OF TRUST

Loan  No: 5510059503301 (Continued)

Page 16

 

 

 

Exhibit A Legal Description to be attached.

 

 

 

 

Exhibit A

 

Legal Description

 

Parcel I:

 

ALL that certain lot or parcel of land, together with the improvements thereon and appurtenances thereunto belonging, situate in Hanover County, Virginia, said lands being more particularly described as Parcel A, containing 8.770 acres, more or less, as shown on plat prepared by Shadrach & Neal, Inc., Land Surveying, dated October 30, 2007, entitled “Three Parcels of Land Situated at the Northeast Corner of the Intersection of Cold Harbor and Bell Creek Roads Mechanicsville Dist., Hanover Co.• Virginia,” reference to which is hereby made for a more particular description of the real estate. Said plat is recorded in the Clerk’s Office, Circuit Court, Hanover County, Virginia in Plat Book 38, Page 266.

 

Parcel II:

 

Rights and easements as contained in the Reciprocal Easement and Operation Agreement between Commonwealth Investment Real Estate Company, and Home Depot U.S.A., Inc. recorded in Deed Book 1378, Page 300; as supplemented by Supplemental Reciprocal Easement Agreement between Commonwealth Investment Real Estate Company, LLC and Natick VA Mechanicsville Realty Corp. dated January 7, 2002 recorded in Deed Book 1777, Page 587; and, Agreement Regarding Contributions Under Reciprocal Easement Agreement dated March 4, 2004, recorded March 5, 2004 in Deed Book 2275, Page 429.

 

Parcel III:

 

Rights and easements as contained in the Amended and Restated Reciprocal Easement Agreement by and between COF North, LLC, a Virginia limited liability company, COF North II, LLC, a Virginia limited liability company, and executed by Goldman Sachs Mortgage Company, Assignee of Goldman Sachs Commercial Mortgage Capital, LP. and Mortgage Electronic Registration Systems, dated January 18, 2008, recorded March 18, 2008 in Deed Book 2909, Page 2847, as corrected and rerecorded on March 20, 2008 in Deed Book 291O, Page 336, and as amended by First Amendment to Amended and Restated Reciprocal Easement Agreement by and between COF North, LLC, a Virginia limited liability company, COF North II, LLC, a Virginia limited liability company, and Fratelli LLC, a Virginia limited liability company, dated March 8, 2013, recorded March 26, 2013 in Deed Book 3056, Page 1912. the foregoing of which amends and restates the Reciprocal Easement Agreement by and between COF North. LLC, a Virginia limited liability company, and COF North II, LLC, a Virginia limited liability company, dated October 31, 2007, recorded November 1,2007 in Deed Book 2896, Page 2856.

 

 

 

 

ADDENDUM TO LOAN DOCUMENTS

 

THIS ADDEUNDUM TO LOAN DOCUMENTS (“Addendum”) is made as of this 3rd day of November, 2017, by and among COF NORTH, LLC, a Virginia limited liability company (“Borrower”) MARK W. CLAUD (“Guarantor”) and LANGLEY FEDERAL CREDIT UNION (“Lender”), and is attached to and made a part of the Business Loan Agreement, Promissory Note, Credit Line Deed of Trust, Assignment of Rents, Commercial Security Agreement, Hazardous Substances Certificate and Indemnity Agreement, and Commercial Guaranty more particularly described below (collectively, the “Loan Documents”). The terms of this Addendum shall supplement the Loan Documents, and in the case of conflict, the terms of this Addendum shall govern.

Recitals

 

A.Borrower has executed and delivered to lender a Business Loan Agreement, a $8,600,000.00 Promissory note (the “Promissory Note”), a Credit Line Deed of Trust, an Assignment of Rents, a Commercial Security Agreement, a Hazardous Substances Certificate and Indemnity Agreement, and a Commercial Guaranty al dated as of the day and year first above written.

 

B.Borrower, Guarantor and Lender desire to amend and supplement the terms of the Loan Documents as set forth herein.

 

C.Capitalized terms, not otherwise delined in this Addendum, shall have the same meanings us in the Loan Documents.

 

NOW, THEREFORE, the parties hereto, in consideration of the mutual promises and covenants contained herein and in the Loan Document and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, agree that the Loan Documents arc amended and supplemented as follows:

 

1.No Event of Default shall be deemed to have occurred with respect to a failure to make a payment when due unless such failure continues for more than fifteen (15) days after the date due.

 

2.A new paragraph to the Business Loan Agreement, the Promissory Note, the Credit Line Deed of Trust, the Assignment of Rents, and the Commercial Security Agreement designated ’·Right to Cure··is hereby added to all of the Loan Documents incorporating the following language:

 

If any default, other than a default in payment, is curable, it shall not constitute an Event of Default if (a) cured within thirty (30) days of written notice of the default being given by Lender to Borrower and my defaulting party to the Loan Documents other than Borrower (the “Other Defaulting Party”) or (b) if the cure requires more than thirty (30) days, the Borrower or Other Defaulting Party, if any, diligently initiates steps, on receipt of written notice of default from Lender, to cure the default And thereafter continues and completes all reasonable and necessary steps to effect a cure as soon as reasonably practical.

 

 

 

 

3.The Loan Documents are hereby amended such that “attorneys’ fees” shall be revised to read “reasonable attorneys’ fees” in all instances.

 

4.The Guaranty Agreement shall not provide for o confession of judgment, and any such provision shall not be operative.

 

5.Lender shall not exercise any right or remedy against Borrower under the Assignment of Rents or under the provisions of the Credit Line Deed of’ Trust relating to assignment of rents, issues, and profits, including without limitation revocation of the license granted to Borrower to manage and operate the Property and to collect, receive, and apply rents, issues, and profits, unless and until an Event of Default has occurred.

 

6.The “Environmental Studies” paragraph appearing in the Business Loan Agreement is hereby amended by adding the following language after the phrase “requested by Lender” in the second line:

 

(but only in the event Lender reasonably believes a release of Hazardous Substance(s) has occurred)

 

7.The indemnity or hold harmless obligations of Borrower under the Loan Documents shall not apply to claims, net ions, liabilities, suits, judgments, losses, fines, penalties, costs, expenses, or fees arising out of or caused by the gross negligence or intentional misconduct of Lender or its employees or agents.

 

8.The “Financial Covenants and Ratios” paragraph in the Business Loan Agreement is hereby amended to read as follows:

 

DSCR Ratio. Maintain a ratio of DSCR in excess of 1.350 to 1.000. Global Debt Service Coverage Ratio (DSCR) shall be calculated based on the Borrower’s filed Federal Income Tax Returns, Financial Statement(s) and Reports, as follows: cash now divided by debt service. This coverage ratio will be evaluated as of year-end annually beginning with the year ending December 31, 20 I 7.

 

9.Notwithstanding anything to the contrary set forth in the Loan Documents, the Borrower will maintain its books and finances on a cash basis.

 

10.Provided that Borrower is not in default under the Loan Documents and provided that a loss does not exceed the sum of $100,000, Borrower shall be entitled to receive all insurance proceeds and condemnation awards and proceeds paid or payable as a result of a casualty or condemnation affecting the Property, so long as Borrower uses such sums to repair or restore the Property in a commercially reasonable manner.

 

11.The “Power of Attorney” paragraph appearing in the Assignment of Rents is hereby amended by adding the following sentence to the end of such paragraph.

 

The powers granted in the preceding sentence snail not be exercised by Lender unless or until an Event of Default has occurred under this Agreement.

 

 

 

 

12.Any inspections of the Collateral or the Property, both as defined in the Loan Documents, to be performed by Lender or its agents shall not unreasonably interfere with Borrower’s normal business operations Lender is permitted to inspect the Collateral or the property during Lender’s normal business hours.

 

13.“The Hazardous Substances” appearing in the ’“Representations” section of the Hazardous Substances Certificate and Indemnity Agreement is hereby amended to delete the phrase “whenever and whether owned by previous occupants, has ever contained” and replace it with the word “contains”.

 

14.The “Indemnitors Waiver and Indemnification” section of the Hazardous Substances Certificate and Indemnity Agreement is hereby amended to insert the parenthetical phrase “other than those arising solely out of the gross negligence, willful misconduct, or bad faith of the party to whom the obligations in this paragraph are owed”) between the word “person” and subsection (a) in the fourth line of the section.

 

15.The “Survival” section of the Hazardous Substances Certificate and Indemnity Agreement is hereby amended to insert the following at the end of the paragraph:

 

Notwithstanding anything to the contrary contained herein, the obligations and liabilities of Indemnitor under this Agreement shall terminate and be of no further force and effect when nil of the following conditions satisfied in full: (a) there has been no change between the date hereof and Trigger Date in any Environmental Laws, the effect or which change may be to make a lender or mortgagee liable in respect to any matter for which the Lender is entitled to indemnification pursuant to this Agreement, (b) Lender shall have received, at Indemnitor’s expense, an Environmental Report dated within ninety (90) days of the Trigger Date showing, to the reasonable satisfaction of Lender, that there exists no matter for which the Lender is entitled to indemnification pursuant 10 this Agreement, and (e) seven (7) years have passed since the Trigger Date.

 

16.The term “Trigger Date” is hereby added to the “Definitions” section of the Hazardous Substances Certificate Indemnity Agreement:

 

Trigger Date. The term “Trigger Date” means either of the following as applicable: (i) the date on which the outstanding indebtedness under the Note shall have been paid indefensibly in full, whether <it maturity, as the result of acceleration, in connection with any prepayment, or otherwise, or (ii) the date on which the Property shall have been conveyed pursuant to a fo1eclosurc of the deed of trust or deed in lieu thereof.

 

17.In each instance in the Loan Documents where entry of a judgment against the Borrower or Guarantor constitutes an Event of Default, the amount of the judgment that constitutes an Event of Default is raised from SI 0,000 lo $50,000.

 

18.The “Application of Insurance Proceeds” section of the Commercial Security Agreement is hereby amended to increase the monetary amount of loss that requires notification from $1,000 to $10,000.

 

 

 

 

19.The “Guaranties” section of the Business Loon Agreement is amended to state that the obligations of the Guarantor under the Guaranty Agreement are limited to losses and or damages suffered by Lender which arise from the Borrower’s and or Guarantor’s: {a) voluntary or involuntary bankruptcy filing, (2) noncompliance with reporting and budget approval covenants contained in the related documents, (3) fraudulent conduct, (4) material misrepresentation, (5) criminal nets, (6) misappropriation of funds or other property of the Borrower or (7) transfer or conveyance of all or a portion of the lender’s collateral in violation of the provisions of the Related Documents.

 

20.Except as expressly amended and supplemented herein, 1he terms and conditions of the Loan Documents shall remain unchanged and in full force and effect. Any other provisions of the Loan Documents, to the extent inconsistent with this Addendum, are hereby deemed amended and restated to be consistent herewith in all respects.

 

[See Attached Signatures]

 

 

 

 

IN WITNESS WHEREOF, the parties have executed this Addendum as of the day and year listed above written.

 

  BORROWER:
   
  COF NORTH, LLC,
  a Virginia limited liability company
       
  By: COF NORTH MANAGEMENT, LLC,
    a Virginia limited liability company
       
  By: /s/Mark W. Claud, Manager (SEAL)
       
  Mark W. Claud. Manager  

 

COMMONWEALTH OF VIRGINIA:

 

CITY/COUNTY OF HENRICO

 

I hereby certify that on this 2 day of November 2017, before me, the undersigned Notary Public in and for the Commonwealth of Virginia at large, personally appeared Mark W. Claud the Manager of COF North Management, LLC, a Virginia limited liability company, the Manager of COF North LLC, a Virginia limited liability company, known lo me or satisfactorily proven to be the person whose name is subscribed to the foregoing instrument and acknowledged that she executed the foregoing on behalf of COF North LLC, a Virginia limited liability company, for the purposes set forth herein.

 

  /s/Darci K. Poole
  Notary Public

 

My Commission Expires: 3/31/2021

Registration Number: 7553162

 

 

 

 

  GUARANTOR:  
     
  MARK W. CLAUD  
  /s/Mark W. Claud (SEAL)

 

COMMONWEALTH OF VIRGINIA:

CITY/COUNTY OF HENRICO

 

I hereby certify that on this 2 day of November 2017, before me, the undersigned Notary Public in and for the Commonwealth of Virginia, at large, personally appeared mark W. Claud, known to me or satisfactorily proven to be the person whose name is subscribed to the foregoing instrument and acknowledged that he executed the foregoing for the purposes set forth herein.

 

  /s/ Darci K. Poole
  Notary Public

 

My Commission Expires: 3/31/2021

Registration Number: 7553162

 

 

 

 

  LENDER:
   
  LANGLEY FEDERAL CREDIT UNION
   
  By: /s/ Natasha Mertz
  Authorized Signer

 

COMMONWEALTH OF VIRGCNIA:

 

CITY/COUNTY OF NEWPORT NEWS

 

I hereby certify that on this 3 day of November 2017, before me, the undersigned Notary Public in and for the Commonwealth of Virginia, at large, personally appeared Natasha Merz, the VP Comm Lending of Langley Federal Credit Union, known to me as satisfactorily proven to be the person whose name is subscribed to the foregoing instrument and acknowledged that he executed the foregoing on behalf of the Credit Union, for the purposes set forth herein.

 

  s/ Tracey E. Pesante
  Notary Public

 

My Commission Expires: 4/30/18

Registration Number: 7595703