EXHIBIT 10.14
LOAN NO.: 26-5950380 THE MAYFLOWER APARTMENTS
VIRGINIA BEACH, VIRGINIA
PROMISSORY NOTE
$10,500,000.00 December 12, 2000
FOR VALUE RECEIVED, the undersigned, CRIT-VA, INC., a Virginia
corporation, ("Maker"), having an address at 306 East Main Street, Richmond,
Virginia 23219, promises to pay to the order of FIRST UNION NATIONAL BANK, a
national banking association ("Payee"), at the office of Payee at One First
Union Center, 301 South College Street, Mailcode NC 0166 Charlotte, North
Carolina 28288, Attention: Contract Finance or at such other place as Payee may
designate to Maker in writing from time to time, the principal sum of Ten
Million Five Hundred Thousand and No/100 Dollars ($10,500,000.00), together with
interest on so much thereof as is from time to time outstanding and unpaid, from
the date of the advance of the principal evidenced hereby, at the rate of seven
and thirty-five one hundredths percent (7.35%) per annum (the "Note Rate"),
together with all other amounts due hereunder or under the other Loan Documents
(as defined in the Security Instrument), in lawful money of the United States of
America, which shall at the time of payment be legal tender in payment of all
debts and dues, public and private.
ARTICLE I. - TERMS AND CONDITIONS
1.1. Computation of Interest. Interest shall be computed hereunder
based on a 360-day year and based on the actual number of days elapsed for any
month in which interest is being calculated. Interest shall accrue from the date
on which funds are advanced hereunder (regardless of the time of day) through
and including the day on which funds are credited pursuant to Section 1.2
hereof.
1.2. Payment of Principal and Interest. Payments in federal funds
immediately available at the place designated for payment received by Payee
prior to 2:00 p.m. local time at said place of payment on a business day shall
be credited prior to close of business, while other payments, at the option of
Payee, may not be credited until immediately available to Payee in federal funds
at the place designated for payment prior to 2:00 p.m. local time at said place
of payment on a business day. The term "business day" when used herein shall
mean a weekday, Monday through Friday, except a legal holiday or a day on which
banking institutions in New York, New York are authorized by law to be closed.
Interest only shall be payable in consecutive monthly installments in the amount
set forth on Annex 1 attached hereto and incorporated herein by this reference,
beginning on the first day of the second full calendar month following the date
of this Note (or on the first day of the first full calendar month following the
date hereof, in the event the advance of the principal amount evidenced by this
Note is the first day of a calendar month) (the "First Payment Date"), and
continuing on the first day of each and every calendar month thereafter through
and including December 1, 2010 (each,
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a "Payment Date"). On January 1, 2011 (the "Maturity Date"), the entire
outstanding principal balance hereof, together with all accrued but unpaid
interest thereon, shall be due and payable in full.
1.3. Application of Payments. So long as no Event of Default (as
hereinafter defined) exists hereunder or under any other Loan Document, each
such monthly installment shall be applied first, to any amounts hereafter
advanced by Payee hereunder or under any other Loan Document, second, to any
late fees and other amounts payable to Payee, third, to the payment of accrued
interest and last to reduction of principal.
1.4. Payment of "Short Interest". If the advance of the principal
amount evidenced by this Note is made on a date other than the first day of a
calendar month, Maker shall pay to Payee contemporaneously with the execution
hereof interest at the Note Rate for a period from the date hereof through and
including the last day of this calendar month.
1.5. Prepayment; Defeasance.
(a) This Note may not be prepaid, in whole or in part (except
as otherwise specifically provided herein), at any time. In the event that Maker
wishes to have the Security Property (as hereinafter defined) released from the
lien of the Security Instrument (as hereinafter defined), Maker's sole option
shall be a Defeasance (as hereinafter defined) upon satisfaction of the terms
and conditions set forth in Section 1.5(d) hereof. This Note may be prepaid in
whole but not in part without premium or penalty on any Payment Date occurring
within three (3) months prior to the Maturity Date provided (i) written notice
of such prepayment is received by Payee not more than ninety (90) days and not
less than thirty (30) days prior to the date of such prepayment, and (ii) such
prepayment is accompanied by all interest accrued hereunder through and
including the date of such prepayment and all other sums due hereunder or under
the other Loan Documents. If, upon any such permitted prepayment on a Payment
Date occurring within three (3) months prior to the Maturity Date, the aforesaid
prior written notice has not been timely received by Payee, there shall be due a
prepayment fee equal to, an amount equal to the lesser of (i) thirty (30) days'
interest computed at the Note Rate on the outstanding principal balance of this
Note so prepaid and (ii) interest computed at the Note Rate on the outstanding
principal balance of this Note so prepaid that would have been payable for the
period from, and including, the date of prepayment through the Maturity Date of
this Note as though such prepayment had not occurred.
(b) If, prior to 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" (a "REMIC"), within the
meaning of Section 860D of the Code, that holds this Note (the "Lockout
Expiration Date"), the indebtedness evidenced by this Note shall have been
declared due and payable by Payee pursuant to Article II hereof or the
provisions of any other Loan Document due to the existence of an Event of
Default (as defined in the Security Instrument) by Maker, then, in addition to
the indebtedness evidenced by this Note being immediately due and payable, there
shall also then be immediately due and payable a sum equal to the interest which
would have accrued on the principal balance of this Note at the Note Rate
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from the date of such acceleration to the Lock-out Expiration Date, together
with a prepayment fee in an amount equal to the Yield Maintenance Premium (as
hereinafter defined) based on the entire indebtedness on the date of such
acceleration. If such acceleration is on or following the Lock-out Expiration
Date, the Yield Maintenance Premium shall also then be immediately due and
payable as though Maker were prepaying the entire indebtedness on the date of
such acceleration. In addition to the amounts described in the two preceding
sentences, in the event of any such acceleration or tender of payment of such
indebtedness occurs or is made on or prior to the first (1st) anniversary of the
date of this Note, there shall also then be immediately due and payable an
additional prepayment fee of three percent (3%) of the principal balance of this
Note. The term "Yield Maintenance Premium" shall mean an amount equal to the
greater of (A) two percent (2.0%) of the principal amount being prepaid, and (B)
the present value of a series of payments each equal to the Payment Differential
(as hereinafter defined) and payable on each Payment Date over the remaining
original term of this Note and on the Maturity Date, discounted at the
Reinvestment Yield (as hereinafter defined) for the number of months remaining
as of the date of such prepayment to each such Payment Date and the Maturity
Date. The term "Payment Differential" shall mean an amount equal to (i) the Note
Rate less the Reinvestment Yield, divided by (ii) twelve (12) and multiplied by
(iii) the principal sum outstanding under this Note after application of the
constant monthly payment due under this Note on the date of such prepayment,
provided that the Payment Differential shall in no event be less than zero. The
term "Reinvestment Yield" shall mean an amount equal to the lesser of (i) the
yield on the U.S. Treasury issue (primary issue) with a maturity date closest to
the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue)
with a term equal to the remaining average life of the indebtedness evidenced by
this Note, with each such yield being based on the bid price for such issue as
published in the Wall Street Journal on the date that is fourteen (14) days
prior to the date of such prepayment set forth in the notice of prepayment (or,
if such bid price is not published on that date, the next preceding date on
which such bid price is so published) and converted to a monthly compounded
nominal yield. In the event that any prepayment fee is due hereunder, Payee
shall deliver to Maker a statement setting forth the amount and determination of
the prepayment fee, and, provided that Payee shall have in good faith applied
the formula described above, Maker shall not have the right to challenge the
calculation or the method of calculation set forth in any such statement in the
absence of manifest error, which calculation may be made by Payee on any day
during the fifteen (15) day period preceding the date of such prepayment. Payee
shall not be obligated or required to have actually reinvested the prepaid
principal balance at the Reinvestment Yield or otherwise as a condition to
receiving the prepayment fee.
(c) Partial prepayments of this Note shall not be permitted,
except for partial prepayments resulting from Payee's election to apply
insurance or condemnation proceeds to reduce the outstanding principal balance
of this Note as provided in the Security Instrument, in which event no
prepayment fee or premium shall be due unless, at the time of either Payee's
receipt of such proceeds or the application of such proceeds to the outstanding
principal balance of this Note, an Event of Default, or an event which, with
notice or the passage of time, or both, would constitute an Event of Default,
shall have occurred, which default or Event of Default is unrelated to the
applicable casualty or condemnation, in which event the applicable prepayment
fee or premium shall be due and payable based upon the amount of the prepayment.
No notice of prepayment shall be required under the circumstances specified in
the preceding sentence. No
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principal amount repaid may be reborrowed. Any such partial prepayments of
principal shall be applied to the unpaid principal balance evidenced hereby but
such application shall not reduce the amount of the fixed monthly installments
required to be paid pursuant to Section 1.2 above until all principal is paid in
full. Except as otherwise expressly provided in this Section 1.5(c) and in
Section 1.5(b) above, the prepayment fees provided above shall be due, to the
extent permitted by applicable law, under any and all circumstances where all or
any portion of this Note is paid prior to the Maturity Date, whether such
prepayment is voluntary or involuntary, including, without limitation, if such
prepayment results from Payee's exercise of its rights upon the occurrence and
continuances of an Event of Default by Maker and acceleration of the Maturity
Date of this Note (irrespective of whether foreclosure proceedings have been
commenced), and shall be in addition to any other sums due hereunder or under
any of the other Loan Documents. No tender of a prepayment of this Note with
respect to which a prepayment fee is due shall be effective unless such
prepayment is accompanied by the applicable prepayment fee.
(d) (i) At any time after the Lockout Expiration Date, and
provided no Event of Default has occurred and is continuing hereunder or under
any of the other Loan Documents, at Maker's option, Payee shall cause the
release of the Security Property from the lien of the Security Instrument and
the other Loan Documents specifically related to this Note (a "Defeasance") upon
the satisfaction of the following conditions:
(A) Maker shall give not more than ninety (90) days' or
less than sixty (60) days' prior written notice to Payee
specifying the date Maker intends for the Defeasance to be
consummated (the "Release Date"), which date shall be a
Payment Date.
(B) All accrued and unpaid interest and all other sums due
under this Note and under the other Loan Documents
specifically related to this Note up to and including the
Release Date shall be paid in full on or prior to the Release
Date.
(C) Maker shall deliver to Payee on or prior to the
Release Date:
(1) a sum of money in immediately available funds (the
"Defeasance Deposit") equal to one hundred
twenty-five percent (125%) of the outstanding
principal balance of this Note plus an amount, if
any, which together with the outstanding principal
balance of this Note, shall be sufficient to enable
Payee to purchase, through means and sources
customarily employed and available to Payee, for the
account of Maker, direct, non-callable obligations of
the United States of America that provide for
payments prior, but as close as possible, to all
successive monthly Payment Dates occurring after the
Release Date and to the Maturity Date, with each such
payment being equal to or greater than the amount of
the corresponding installment of principal and/or
interest required to be paid under this Note
(including, but not limited to, all amounts due on
the Maturity
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Date) for the balance of the term hereof (the
"Defeasance Collateral"), each of which shall be duly
endorsed by the holder thereof as directed by Payee
or accompanied by a written instrument of transfer in
form and substance satisfactory to Payee in its sole
discretion (including, without limitation, such
instruments as may be required by the depository
institution holding such securities or the issuer
thereof, as the case may be, to effectuate book-entry
transfers and pledges through the book-entry
facilities of such institution) in order to perfect
upon the delivery of the Defeasance Security
Agreement (as hereinafter defined) the first priority
security interest in the Defeasance Collateral in
favor of Payee in conformity with all applicable
state and federal laws governing granting of such
security interests.
(2) A pledge and security agreement, in form and
substance satisfactory to Payee in its sole
discretion, creating a first priority security
interest in favor of Payee in the Defeasance
Collateral (the "Defeasance Security Agreement"),
which shall provide, among other things, that any
excess received by Payee from the Defeasance
Collateral over the amounts payable by Maker
hereunder shall be refunded to Maker promptly after
each monthly Payment Date.
(3) A certificate of Maker certifying that all of the
requirements of Maker set forth in this subsection
1.5(d)(i) have been satisfied.
(4) An opinion of counsel for Maker in form and substance
and delivered by counsel reasonably satisfactory to
Payee in its sole discretion stating, among other
things, that (w) Payee has a perfected first priority
security interest in the Defeasance Collateral, (x)
the Defeasance Security Agreement is enforceable
against Maker in accordance with its terms, (y) the
contemplated defeasance will not result in any deemed
exchange of the Note pursuant to Section 1001 of the
Code and will not adversely affect the Note's status
as indebtedness for Federal income tax purposes and
(z) any trust formed as a REMIC in connection with a
Secondary Market Transaction (as defined in the
Security Instrument) will not fail to maintain its
status as REMIC as a result of such defeasance or be
subject to a tax on a prohibited transaction under
Section 860(f)(a) of the Code.
(5) Maker and any guarantor or indemnitor of Maker's
obligations under the Loan Documents for which Maker
has recourse liability executes and delivers to Payee
such documents and agreements as Payee shall
reasonably require to evidence and effectuate the
ratification of such recourse liability and guaranty
or indemnity,
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respectively; provided that Maker and each such
guarantor or indemnitor shall be released and
relieved from any of its obligations under this Note
and the other Loan Documents and under any guaranty
or indemnity agreement executed in connection with
the loan evidenced by this Note for any acts or
events occurring or obligations arising after a
Defeasance which are not caused by or arising out of
an any acts or events occurring or obligations
arising prior to or simultaneously with a Defeasance.
(6) Evidence from any Rating Agency (as defined in the
Security Instrument) confirming that such Defeasance
and release of the Security Property from the lien of
the Security Instrument and the cross-default and
cross-collateralization provisions of the
Contemporaneous Mortgages (as defined in the Security
Instrument) and Contemporaneous Assignments (as
defined in the Security Instrument) shall not result
in a requalification, reduction, downgrade, or
withdrawal of any rating initially assigned or to be
assigned in a Secondary Market Transaction, or if no
such rating has been issued, in Payee's good faith
judgment, such Defeasance shall not have an adverse
affect on the level of rating obtainable in
connection with the loan evidenced hereby.
(7) Such other certificates, documents or instruments as
Payee may reasonably require.
(8) Payment of all reasonable fees, costs, expenses and
charges incurred by Payee in connection with the
Defeasance of the Security Property and the purchase
of the Defeasance Collateral, including, without
limitation, all reasonable legal fees and costs and
expenses incurred by Payee or its agents in
connection with release of the Security Property,
review of the proposed Defeasance Collateral and
preparation of the Defeasance Security Agreement and
related documentation, any revenue, documentary,
stamp, intangible or other taxes, charges or fees due
in connection with substitution of the Defeasance
Collateral for the Security Property shall be paid on
or before the Release Date. Without limiting Maker's
obligations with respect thereto, Payee shall be
entitled to deduct all such fees, costs, expenses and
charges from the Defeasance Deposit to the extent of
any portion of the Defeasance Deposit which exceeds
the amount necessary to purchase the Defeasance
Collateral.
(9) Evidence in writing from the applicable rating
agencies stating that the defeasance will not result
in downgrading, withdrawal, or qualification of the
respective rating in effect immediately prior to
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such defeasance event for any securities issued in
connection with the securitization which are then
outstanding.
(D) In connection with the Defeasance Deposit, Maker
hereby authorizes and directs Payee using the means and
sources customarily employed and available to Payee to use the
Defeasance Deposit to purchase for the account of Maker the
Defeasance Collateral. Furthermore, the Defeasance Collateral
shall be arranged such that payments received from such
Defeasance Collateral shall be paid directly to Payee to be
applied on account of the indebtedness of this Note. Any part
of the Defeasance Deposit in excess of the amount necessary to
purchase the Defeasance Collateral and to pay the other and
related costs Maker is obligated to pay under this Section 1.5
shall be refunded to Maker.
(E) After giving effect, and as a condition precedent, to
the release of the Security Property from the lien of the Deed
of Trust, (x) the debt service coverage ratio, as determined
by Payee in connection with its customary underwriting
practices and procedures with respect to the Other Mortgaged
Properties (as defined in the Security Instrument) which
remain subject to the lien of the Contemporaneous Mortgages
after the release of the Security Property is not less than
the greater of (1) the debt service coverage ratio for the
Security Property and all of the Other Mortgaged Properties
immediately prior to the release or (2) the debt service
coverage ratio of the Security Property and all Other
Mortgaged Properties at the time of closing of the loan
evidenced hereby (but in no event less than 1.60:1), and (y)
the loan to value ratio of the Other Mortgaged Properties
which remain encumbered by the Contemporaneous Mortgages after
the release of the Security Property, as reasonably determined
by Payee based on an appraisal prepared by an MAI appraiser
satisfactory to Payee at Maker's cost (and when determining
the value, talking into account any limitations in the
Security Instrument or any Contemporaneous Mortgages on the
principal amount secured by the Security Instrument or any
Contemporaneous Mortgage), is not greater than 60%.
(ii) Upon compliance with the requirements of subsection
1.5(d)(i), the Security Property shall be released from the lien of the
Security Instrument and the other Loan Documents, including, without
limitation the cross-default and cross-collateralization provisions of
the Contemporaneous Mortgages and Contemporaneous Assignments, and the
Defeasance Collateral shall constitute collateral which shall secure
this Note and all other obligations under the Loan Documents, including
without limitation the Contemporaneous Notes (as defined in the
Security Instrument), the Contemporaneous Mortgages and Contemporaneous
Assignments. Payee will, at Maker's reasonable expense, execute and
deliver any agreements reasonably requested by Maker to release the
lien of the Security Instrument from the Security Property.
(iii) Upon the release of the Security Property in accordance
with this Section 1.5(d), Maker shall assign all its obligations and
rights under this Note, together with the pledged Defeasance
Collateral, to a newly created successor entity which complies with
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the terms of Section 1.33 of the Security Instrument designated by
Maker and approved by Payee in its sole discretion. Such successor
entity shall execute an assumption agreement in form and substance
satisfactory to Payee in its sole discretion pursuant to which it shall
assume Maker's obligations under this Note and the Defeasance Security
Agreement. As conditions to such assignment and assumption, Maker shall
(x) deliver to Payee an opinion of counsel in form and substance and
delivered by counsel satisfactory to Payee in its sole discretion
stating, among other things, that such assumption agreement is
enforceable against Maker and such successor entity in accordance with
its terms and that this Note and the Defeasance Security Agreement as
so assumed, are enforceable against such successor entity in accordance
with their respective terms, and (y) pay all costs and expenses
(including, but not limited to, reasonable legal fees) incurred by
Payee 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). Upon such assumption, Maker shall be relieved of its
obligations hereunder, under the other Loan Documents other than as
specified in Section 1.5(d)(C)(5) above and under the Defeasance
Security Agreement.
(iv) As consideration for Payee's agreement to modify the
single asset provisions of Section 1.33 of the Security Instrument, and
permit Maker to own all of the Security Property and the Other
Mortgaged Properties, in the event of a Defeasance in accordance with
this Section 1.5(d), Maker must convey the Security Property to a
different ownership entity (with neither the Security Property nor the
proposed new ownership entity being owned by Maker).
1.6. Security; Cross-Collateralization. The indebtedness evidenced by
this Note and the obligations created hereby are secured by, among other things,
that certain mortgage, deed of trust or deed to secure debt and security
agreement (the "Security Instrument") from Maker for the benefit of Payee, dated
of even date herewith, covering property located in the Virginia Beach,
Virginia, and the Contemporaneous Mortgages and the Contemporaneous Assignments.
Some of the Loan Documents are to be filed for record on or about the date
hereof in the appropriate public records. Maker acknowledges that Payee has made
the loan evidenced by this Note to Maker upon the security of its collective
interest in the Security Property and the Other Mortgaged Properties and in
reliance upon the aggregate of the Security Property and the Other Mortgaged
Properties taken together being of greater value as collateral security than the
sum of the Security Property and Other Mortgaged Properties taken separately.
Maker agrees that this Note and the Security Instrument are and will be
cross-collateralized and cross-defaulted with the Contemporaneous Notes, the
Contemporaneous Mortgages and Contemporaneous Assignments.
ARTICLE II. - DEFAULT
2.1. Events of Default; Cross-Default. It is hereby expressly agreed
that should any default occur in the payment of principal or interest as
stipulated above and such payment is not made within seven (7) days of the date
such payment is due (provided that no grace period is provided for the payment
of principal and interest due on the Maturity Date), or should any other Event
of Default occur and be continuing, the indebtedness evidenced hereby, including
all sums
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advanced or accrued hereunder or under any other Loan Document, and all unpaid
interest accrued thereon, shall, at the option of Payee and without notice to
Maker, at once become due and payable and may be collected forthwith, whether or
not there has been a prior demand for payment and regardless of the stipulated
date of maturity.
2.2. Late Charges. In the event that any payment is not received by
Payee within seven (7) days of the date when due, then, in addition to any
default interest payments due hereunder, Maker shall also pay to Payee a late
charge in an amount equal to five percent (5%) of the amount of such overdue
payment.
2.3. Default Interest Rate. So long as any Event of Default exists
hereunder, regardless of whether or not there has been an acceleration of the
indebtedness evidenced hereby, and at all times after maturity of the
indebtedness evidenced hereby (whether by acceleration or otherwise), interest
shall accrue on the outstanding principal balance of this Note, from the date
due until the date credited, at a rate per annum equal to four percent (4%) in
excess of the Note Rate, or, if such increased rate of interest may not be
collected under applicable law, then at the maximum rate of interest, if any,
which may be collected from Maker under applicable law (the "Default Interest
Rate"), and such default interest shall be immediately due and payable.
2.4. Maker's Agreements. Maker acknowledges that it would be extremely
difficult or impracticable to determine Payee's actual damages resulting from
any late payment or default, and such late charges and default interest are
reasonable estimates of those damages and do not constitute a penalty. The
remedies of Payee in this Note or in the Loan Documents, or at law or in equity,
shall be cumulative and concurrent, and may be pursued singly, successively or
together, in Payee's discretion.
2.5. Maker to Pay Costs. In the event that this Note, or any part
hereof, is collected by or through an attorney-at-law, Maker agrees to pay all
costs of collection, including, but not limited to, reasonable attorneys' fees.
2.6. Exculpation. Notwithstanding anything in this Note or the Loan
Documents to the contrary, but subject to the qualifications hereinbelow set
forth, Payee agrees that:
(a) Maker shall be liable upon the indebtedness evidenced hereby
and for the other obligations arising under the Loan Documents to the full
extent (but only to the extent) of the security provided for in the Loan
Documents, the same being all properties (whether real or personal), rights,
estates and interests now or at any time hereafter securing the payment of this
Note and/or the other obligations of Maker under the Loan Documents pursuant to
the terms thereof (collectively, the "Security Property");
(b) if a default occurs in the timely and proper payment of all
or any part of such indebtedness evidenced hereby or in the timely and proper
performance of the other obligations of Maker under the Loan Documents, any
judicial proceedings brought by Payee against Maker shall be limited to the
preservation, enforcement and foreclosure, or any thereof, of the liens,
security titles, estates, assignments, rights and security interests now or at
any time hereafter securing the payment of this Note and/or the other
obligations of Maker under the Loan
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Documents pursuant to the terms thereof, and no attachment, execution or other
writ of process shall be sought, issued or levied upon any assets, properties or
funds of Maker other than the Security Property, except with respect to the
liability described below in this section; and
(c) in the event of a foreclosure of such liens, security titles,
estates, assignments, rights or security interests with respect to the Security
Property securing the payment of this Note and/or the other obligations of Maker
under the Loan Documents, no judgment for any deficiency upon the indebtedness
evidenced hereby shall be sought or obtained by Payee against Maker, except with
respect to the liability described below in this section; provided, however,
that, notwithstanding the foregoing provisions of this section, Maker shall be
fully and personally liable and subject to legal action (i) for misapplication
or misappropriation by Maker of proceeds paid under any insurance policies (or
paid to Maker as a result of any other claim or cause of action against any
person or entity) by reason of damage, loss or destruction to all or any portion
of the Security Property, to the full extent of such proceeds not previously
delivered to Payee, but which, under the terms of the Loan Documents, should
have been delivered to Payee, (ii) for misapplication or misappropriation by
Maker of proceeds or awards resulting from the condemnation or other taking in
lieu of condemnation of all or any portion of the Security Property, to the full
extent of such proceeds or awards not previously delivered to Payee, but which,
under the terms of the Loan Documents, should have been delivered to Payee,
(iii) for misapplication or misappropriation by Maker of all tenant security
deposits or other refundable deposits paid to or held by Maker or any other
person or entity under the control or direction of Maker, if any, in connection
with leases of all or any portion of the Security Property which are not applied
in accordance with the terms of the applicable lease or other agreement, (iv)
for misapplication or misappropriation of rent and other payments received from
tenants under leases of all or any portion of the Security Property paid more
than one (1) month in advance, (v) for misapplication or misappropriation by
Maker of rents, issues, profits and revenues of all or any portion of the
Security Property received by Maker or any other person or entity under the
control or direction of Maker that are applicable to a period after the
occurrence and continuance of any Event of Default or any event which, with
notice or the passage of time, or both, would constitute an Event of Default,
hereunder or under the Loan Documents which are not either applied to the
ordinary and necessary expenses or capital expenditures in connection with
owning and operating the Security Property or paid to Payee or otherwise as
contemplated or permitted by the Loan Documents, (vi) for waste committed on the
Security Property, damage to the Security Property as a result of the
intentional misconduct or gross negligence of Maker or any of its officers,
general partners or members, as the case may be, Indemnitor (as defined in the
Indemnity Agreement (as hereinafter defined)), or any agent or employee of any
such persons, or any removal of any portion of the Security Property not
repaired as required by the Loan Documents, in violation of the terms of the
Loan Documents, to the full extent of the losses or damages actually incurred by
Payee on account of such occurrence, (vii) for failure by Maker to pay any valid
taxes, assessments, mechanic's liens, materialmen's liens or other liens which
could create liens on any portion of the Security Property which would be
superior to the lien or security title of the Security Instrument or the other
Loan Documents except, with respect to any such taxes or assessments, to the
extent that funds have been deposited with Payee pursuant to the terms of the
Security Instrument specifically for the applicable taxes or assessments and not
applied by Payee to pay such taxes and assessments, (viii) for all obligations
and indemnities of Maker under Section 1.31 of the Security Instrument and the
Environmental Indemnity
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Agreement (as hereinafter defined) relating to hazardous or toxic substances or
radon or compliance with environmental laws and regulations, and (ix) for fraud,
material misrepresentation or failure to disclose a material fact by Maker or
any of its officers, general partners or members, as the case may be, Indemnitor
or any agent, employee or other person authorized to make statements,
representations or disclosures on behalf of Maker, any officer, general partner
or member, as the case may be, of Maker or Indemnitor, to the full extent of any
losses, damages and expenses actually incurred by Payee on account thereof.
Nothing contained in this section shall (1) be deemed to be a release or
impairment of the indebtedness evidenced by this Note or the other obligations
of Maker under the Loan Documents or the lien of the Loan Documents upon the
Security Property, or (2) preclude Payee from foreclosing the Loan Documents in
case of any Event of Default or from enforcing any of the other rights of Payee
except as stated in this section, or (3) limit or impair in any way whatsoever
(A) the Indemnity and Guaranty Agreement (the "Indemnity Agreement") or (B) the
Environmental Indemnity Agreement (the "Environmental Indemnity Agreement"),
each of even date herewith executed and delivered in connection with the
indebtedness evidenced by this Note or release, relieve, reduce, waive or impair
in any way whatsoever, any obligation of any party to the Indemnity Agreement or
the Environmental Indemnity Agreement.
Notwithstanding anything to the contrary in this Note, the Security
Instrument or any of the other Loan Documents, Payee shall not be deemed to have
waived any right which Payee may have under Section 506(a), 506(b), 1111(b) or
any other provisions of the U.S. Bankruptcy Code to file a claim for the full
amount of the indebtedness evidenced hereby or secured by the Security
Instrument or any of the other Loan Documents or to require that all collateral
shall continue to secure all of the indebtedness owing to Payee in accordance
with this Note, the Security Instrument and the other Loan Documents.
ARTICLE III. - GENERAL CONDITIONS
3.1. No Waiver; Amendment. No failure to accelerate the indebtedness
evidenced hereby by reason of default hereunder, acceptance of a partial or past
due payment, or indulgences granted from time to time shall be construed (i) as
a novation of this Note or as a reinstatement of the indebtedness evidenced
hereby or as a waiver of such right of acceleration or of the right of Payee
thereafter to insist upon strict compliance with the terms of this Note, or (ii)
to prevent the exercise of such right of acceleration or any other right granted
hereunder or by any applicable laws; and Maker hereby expressly waives the
benefit of any statute or rule of law or equity now provided, or which may
hereafter be provided, which would produce a result contrary to or in conflict
with the foregoing. No extension of the time for the payment of this Note or any
installment due hereunder made by agreement with any person now or hereafter
liable for the payment of this Note shall operate to release, discharge, modify,
change or affect the original liability of Maker under this Note, either in
whole or in part, unless Payee agrees otherwise in writing. This Note may not be
changed orally, but only by an agreement in writing signed by the party against
whom enforcement of any waiver, change, modification or discharge is sought.
3.2. Waivers. Presentment for payment, demand, protest and notice of
demand, protest and nonpayment and all other notices are hereby waived by Maker.
Maker hereby further waives and renounces, to the fullest extent permitted by
law, all rights to the benefits of any
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moratorium, reinstatement, marshaling, forbearance, valuation, stay, extension,
redemption, appraisement, exemption and homestead now or hereafter provided by
the Constitution and laws of the United States of America and of each state
thereof, both as to itself and in and to all of its property, real and personal,
against the enforcement and collection of the obligations evidenced by this Note
or the other Loan Documents.
3.3. Limit of Validity. The provisions of this Note and of all
agreements between Maker and Payee, whether now existing or hereafter arising
and whether written or oral, including, but not limited to, the Loan Documents,
are hereby expressly limited so that in no contingency or event whatsoever,
whether by reason of demand or acceleration of the maturity of this Note or
otherwise, shall the amount contracted for, charged, taken, reserved, paid or
agreed to be paid to Payee for the use, forbearance or detention of the money
loaned under this Note ("Interest") exceed the maximum amount permissible under
applicable law. If, from any circumstance whatsoever, performance or fulfillment
of any provision hereof or of any agreement between Maker and Payee shall, at
the time performance or fulfillment of such provision shall be due, exceed the
limit for Interest prescribed by law or otherwise transcend the limit of
validity prescribed by applicable law, then, ipso facto, the obligation to be
performed or fulfilled shall be reduced to such limit, and if, from any
circumstance whatsoever, Payee shall ever receive anything of value deemed
Interest by applicable law in excess of the maximum lawful amount, an amount
equal to any excessive Interest shall be applied to the reduction of the
principal balance owing under this Note in the inverse order of its maturity
(whether or not then due) or, at the option of Payee, be paid over to Maker, and
not to the payment of Interest. All Interest (including any amounts or payments
judicially or otherwise under the law deemed to be Interest) contracted for,
charged, taken, reserved, paid or agreed to be paid to Payee shall, to the
extent permitted by applicable law, be amortized, prorated, allocated and spread
throughout the full term of this Note, including any extensions and renewals
hereof until payment in full of the principal balance of this Note so that the
Interest thereon for such full term will not exceed at any time the maximum
amount permitted by applicable law. Additionally, to the extent permitted by
applicable law now or hereafter in effect, Payee may, at its option and from
time to time, implement any other method of computing the maximum lawful rate
under the law of the State in which the Security Property is located or under
other applicable law by giving notice, if required, to Maker as provided by
applicable law now or hereafter in effect. This Section 3.3 will control all
agreements between Maker and Payee.
3.4. Use of Funds. Maker hereby warrants, represents and covenants that
the funds disbursed hereunder shall be used for business purposes.
3.5. Unconditional Payment. Maker is and shall be obligated to pay
principal, interest and any and all other amounts which become payable hereunder
or under the other Loan Documents absolutely and unconditionally and without any
abatement, postponement, diminution or deduction and without any reduction for
counterclaim or setoff. In the event that at any time any payment received by
Payee hereunder shall be deemed by a court of competent jurisdiction to have
been a voidable preference or fraudulent conveyance under any bankruptcy,
insolvency or other debtor relief law, then the obligation to make such payment
shall survive any cancellation or satisfaction of this Note or return thereof to
Maker and shall not be discharged or satisfied with any prior payment thereof or
cancellation of this Note, but shall remain a valid and
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binding obligation enforceable in accordance with the terms and provisions
hereof, and such payment shall be immediately due and payable upon demand.
3.6. Governing Law. THIS NOTE SHALL BE INTERPRETED, CONSTRUED AND
ENFORCED ACCORDING TO THE LAWS OF THE STATE IN WHICH THE SECURITY PROPERTY IS
LOCATED.
3.7. Waiver of Jury Trial. MAKER, TO THE FULL EXTENT PERMITTED BY LAW,
HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF
COMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVER FORGOES THE RIGHT TO A TRIAL
BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY
RELATING TO THE DEBT EVIDENCED BY THIS NOTE OR ANY CONDUCT, ACT OR OMISSION OF
PAYEE OR MAKER, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, PARTNERS,
MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH
PAYEE OR MAKER, IN EACH OR THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT,
TORT OR OTHERWISE.
3.8. Secondary Market. Payee may sell, transfer and deliver the Loan
Documents to one or more investors in the secondary mortgage market. In
connection with such sale, Payee may retain or assign responsibility for
servicing the loan evidenced by this Note or may delegate some or all of such
responsibility and/or obligations to a servicer, including, but not limited to,
any subservicer or master servicer, on behalf of the investors.
3.9. Dissemination of Information. If Payee determines at any time to
sell, transfer or assign this Note, the Security Instrument and the other Loan
Documents, and any or all servicing rights with respect thereto, or to grant
participations therein (the "Participations") or issue mortgage pass-through
certificates or other securities evidencing a beneficial interest in a rated or
unrated public offering or private placement (the "Securities"), Payee may
forward to each purchaser, transferee, assignee, servicer, participant,
investor, or their respective successors in such Participations and/or
Securities (collectively, the "Investor") or any Rating Agency (as defined in
the Security Instrument) rating such Securities, each prospective Investor and
each of the foregoing's respective counsel, all documents and information which
Payee now has or may hereafter acquire relating to the debt evidenced by this
Note and to Maker, Indemnitor and the Security Property, which shall have been
furnished by Maker or Indemnitor as Payee determines necessary or desirable.
ARTICLE IV. - MISCELLANEOUS PROVISIONS
4.1. The terms and provisions hereof shall be binding upon and inure to
the benefit of Maker and Payee and their respective heirs, executors, legal
representatives, successors, successors-in-title and assigns, whether by
voluntary action of the parties or by operation of law. All personal pronouns
used herein, whether used in the masculine, feminine or neuter gender, shall
include all other genders; the singular shall include the plural and vice versa.
Titles of articles and sections are for convenience only and in no way define,
limit, amplify or describe the scope or intent of any provisions hereof. Time is
of the essence with respect to all provisions of
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this Note. This Note and the other Loan Documents contain the entire agreements
between the parties hereto relating to the subject matter hereof and thereof and
all prior agreements relative hereto and thereto which are not contained herein
or therein are terminated.
4.2. Maker's Tax Identification Number is 54-2014536
[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Maker has executed this Note as of the date first
written above.
MAKER:
CRIT-VA, INC.,
a Virginia corporation
By:/s/ Stanley J. Olander, Jr.
----------------------------------------
Name: Stanley J. Olander, Jr.
Title: Vice President
<PAGE>
ANNEX 1
TO
PROMISSORY NOTE
LOAN NO. 26-5950380
[OMITTED]
