Prepared by,
and after recording
return to:
PNC Bank, National Association
10731 Treena Street, Suite 101
San Diego, CA 92131
Attention: Kelli A. Tyler
PNC Loan No. 310401114
Fannie Mae No. 865151
MULTIFAMILY MORTGAGE
,
ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT
AND FIXTURE FILING
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Fannie Mae
Multifamily Security Instrument
Kansas
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Form 6025.KS
01-11
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© 2011 Fannie
Mae
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PAGE
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1.
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2
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2.
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SECURITY AGREEMENT; FIXTURE
FILING
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6
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3.
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ASSIGNMENT OF LEASES AND RENTS; APPOINTMENT OF
RECEIVER; LENDER IN POSSESSION
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7
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4.
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PROTECTION OF LENDER’S
SECURITY
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10
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5.
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NO OTHER INDEBTEDNESS AND MEZZANINE
FINANCING
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11
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6.
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DEFAULT; ACCELERATION; REMEDIES
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7.
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WAIVER OF STATUTE OF LIMITATIONS AND
MARSHALING
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13
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8.
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WAIVER OF REDEMPTION; RIGHTS OF
TENANTS
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13
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9.
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14
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10.
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15
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11.
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15
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12.
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GOVERNING LAW; CONSENT TO JURISDICTION AND
VENUE
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15
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13.
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15
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14.
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17
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15.
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17
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16.
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ACKNOWLEDGMENT OF RECEIPT
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17
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Fannie Mae
Multifamily Security Instrument
Kansas
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Form 6025.KS
01-11
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Page i
© 2011 Fannie Mae
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MULTIFAMILY MORTGAGE
,
ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT
AND FIXTURE FILING
This MULTIFAMILY
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND
FIXTURE FILING (as amended, restated, replaced, supplemented, or
otherwise modified from time to time, the “ Security
Instrument ”) dated as of June 28, 2011, is executed
by SIR CLARION PARK, LLC, a limited liability company, organized
and existing under the laws of Delaware, as mortgagor (“
Borrower ”), to and for the benefit of PNC BANK,
NATIONAL ASSOCIATION, a national banking association, as mortgagee
(“ Lender ”).
Borrower, in
consideration of (i) the loan in the original principal amount
of $8,972,000.00 (the “ Mortgage Loan ”)
evidenced by that certain Multifamily Note dated as of the date of
this Security Instrument, executed by Borrower and made payable to
the order of Lender (as amended, restated, replaced, supplemented,
or otherwise modified from time to time, the “ Note
”), and (ii) that certain Multifamily Loan and Security
Agreement dated as of the date of this Security Instrument,
executed by and between Borrower and Lender (as amended, restated,
replaced, supplemented or otherwise modified from time to time, the
“ Loan Agreement ”), and to secure to Lender the
repayment of the Indebtedness (as defined in this Security
Instrument), and all renewals, extensions and modifications
thereof, and the performance of the covenants and agreements of
Borrower contained in the Loan Documents (as defined in the Loan
Agreement), excluding the Environmental Indemnity Agreement (as
defined in this Security Instrument), irrevocably and
unconditionally mortgages, grants, assigns, remises, releases,
warrants and conveys to and for the benefit of Lender the Mortgaged
Property (as defined in this Security Instrument), including the
real property located in the County of Johnson, State of Kansas,
and described in Exhibit A attached to this Security
Instrument and incorporated by reference (the “ Land
”), to have and to hold such Mortgaged Property unto Lender
and Lender’s successors and assigns, forever; Borrower hereby
releasing, relinquishing and waiving, to the fullest extent allowed
by law, all rights and benefits, if any, under and by virtue of the
homestead exemption laws of the Property Jurisdiction (as defined
in this Security Instrument), if applicable.
Borrower
represents and warrants that Borrower is lawfully seized of the
Mortgaged Property and has the right, power and authority to
mortgage, grant, assign, remise, release, warrant and convey the
Mortgaged Property, and that the Mortgaged Property is not
encumbered by any Lien (as defined in this Security Instrument)
other than Permitted Encumbrances (as defined in this Security
Instrument). Borrower covenants that Borrower will warrant and
defend the title to the Mortgaged Property against all claims and
demands other than Permitted Encumbrances.
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Fannie Mae
Multifamily Security Instrument
Kansas
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Form 6025.KS
01-11
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Page 1
© 2011 Fannie Mae
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Borrower and
Lender, by its acceptance hereof, each covenants and agrees as
follows:
Capitalized terms
used and not specifically defined herein have the meanings given to
such terms in the Loan Agreement. All terms used and not
specifically defined herein, but which are otherwise defined by the
UCC, shall have the meanings assigned to them by the UCC. The
following terms, when used in this Security Instrument, shall have
the following meanings:
“
Condemnation Action ” means any action or proceeding,
however characterized or named, relating to any condemnation or
other taking, or conveyance in lieu thereof, of all or any part of
the Mortgaged Property, whether direct or indirect.
“
Enforcement Costs ” means all expenses and costs,
including reasonable attorneys’ fees and expenses, fees and
out-of-pocket expenses of expert witnesses and costs of
investigation, incurred by Lender as a result of any Event of
Default under the Loan Agreement or in connection with efforts to
collect any amount due under the Loan Documents, or to enforce the
provisions of the Loan Agreement or any of the other Loan
Documents, including those incurred in post-judgment collection
efforts and in any bankruptcy or insolvency proceeding (including
any action for relief from the automatic stay of any bankruptcy
proceeding or Foreclosure Event) or judicial or non-judicial
foreclosure proceeding, to the extent permitted by law.
“
Environmental Indemnity Agreement ” means that certain
Environmental Indemnity Agreement dated as of the date of this
Security Instrument, executed by Borrower to and for the benefit of
Lender, as the same may be amended, restated, replaced,
supplemented, or otherwise modified from time to time.
“
Environmental Laws ” has the meaning set forth in the
Environmental Indemnity Agreement.
“
Event of Default ” has the meaning set forth in the
Loan Agreement.
“
Fixtures ” means all Goods that are so attached or
affixed to the Land or the Improvements as to constitute a fixture
under the laws of the Property Jurisdiction.
“
Goods ” means all goods which are used now or in the
future in connection with the ownership, management, or operation
of the Land or the Improvements or are located on the Land or in
the Improvements, including inventory; furniture; furnishings;
machinery, equipment, engines, boilers, incinerators, and installed
building materials; systems and equipment for the purpose of
supplying or distributing heating, cooling, electricity, gas,
water, air, or light; antennas, cable, wiring, and conduits used in
connection with radio, television, security, fire prevention, or
fire detection, or otherwise used to carry electronic signals;
telephone systems and equipment; elevators and related machinery
and equipment; fire detection, prevention and extinguishing systems
and apparatus; security and access control systems and apparatus;
plumbing systems;
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Fannie Mae
Multifamily Security Instrument
Kansas
|
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Form 6025.KS
01-11
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Page 2
© 2011 Fannie Mae
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water heaters,
ranges, stoves, microwave ovens, refrigerators, dishwashers,
garbage disposers, washers, dryers, and other appliances; light
fixtures, awnings, storm windows, and storm doors; pictures,
screens, blinds, shades, curtains, and curtain rods; mirrors,
cabinets, paneling, rugs, and floor and wall coverings; fences,
trees, and plants; swimming pools; exercise equipment; supplies;
tools; books and records (whether in written or electronic form);
websites, URLs, blogs, and social network pages; computer equipment
(hardware and software); and other tangible personal property which
is used now or in the future in connection with the ownership,
management, or operation of the Land or the Improvements or are
located on the Land or in the Improvements.
“
Imposition Deposits ” means deposits in an amount
sufficient to accumulate with Lender the entire sum required to pay
the Impositions when due.
(a) any water
and sewer charges which, if not paid, may result in a lien on all
or any part of the Mortgaged Property;
(b) the
premiums for fire and other casualty insurance, liability
insurance, rent loss insurance and such other insurance as Lender
may require under the Loan Agreement;
(d) amounts
for other charges and expenses which Lender at any time reasonably
deems necessary to protect the Mortgaged Property, to prevent the
imposition of liens on the Mortgaged Property, or otherwise to
protect Lender’s interests, all as reasonably determined from
time to time by Lender.
“
Improvements ” means the buildings, structures,
improvements, and alterations now constructed or at any time in the
future constructed or placed upon the Land, including any future
replacements, facilities, and additions and other construction on
the Land.
“
Indebtedness ” means the principal of, interest on,
and all other amounts due at any time under the Note, the Loan
Agreement, this Security Instrument or any other Loan Document
(other than the Environmental Indemnity Agreement and Guaranty),
including Prepayment Premiums, late charges, default interest, and
accrued interest as provided in the Loan Agreement and this
Security Instrument, advances, costs and expenses to perform the
obligations of Borrower or to protect the Mortgaged Property or the
security of this Security Instrument, all other monetary
obligations of Borrower under the Loan Documents (other than the
Environmental Indemnity Agreement), including amounts due as a
result of any indemnification obligations, and any Enforcement
Costs.
“
Land ” means the real property described in
Exhibit A .
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Fannie Mae
Multifamily Security Instrument
Kansas
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Form 6025.KS
01-11
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Page 3
© 2011 Fannie Mae
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“
Leases ” means all present and future leases,
subleases, licenses, concessions or grants or other possessory
interests now or hereafter in force, whether oral or written,
covering or affecting the Mortgaged Property, or any portion of the
Mortgaged Property (including proprietary leases or occupancy
agreements if Borrower is a cooperative housing corporation), and
all modifications, extensions or renewals thereof.
“
Lien ” means any claim or charge against property for
payment of a debt or an amount owed for services rendered,
including any mortgage, deed of trust, deed to secure debt,
security interest, tax lien, any materialman’s or
mechanic’s lien, or any lien of a Governmental Authority,
including any lien in connection with the payment of utilities, or
any other encumbrance.
“
Mortgaged Property ” means all of Borrower’s
present and hereafter acquired right, title and interest in and to
all of the following:
(d) current
and future rights, including air rights, development rights, zoning
rights and other similar rights or interests, easements, tenements,
rights-of-way, strips and gores of land, streets, alleys, roads,
sewer rights, waters, watercourses, and appurtenances related to or
benefitting the Land or the Improvements, or both, and all
rights-of-way, streets, alleys and roads which may have been or may
in the future be vacated;
(e) insurance
policies relating to the Mortgaged Property (and any unearned
premiums) and all proceeds paid or to be paid by any insurer of the
Land, the Improvements, the Personalty, or any other part of the
Mortgaged Property, whether or not Borrower obtained the insurance
pursuant to Lender’s requirements;
(f) awards,
payments and other compensation made or to be made by any
municipal, state or federal authority with respect to the Land, the
Improvements, the Personalty, or any other part of the Mortgaged
Property, including any awards or settlements resulting from
(1) Condemnation Actions, (2) any damage to the Mortgaged
Property caused by governmental action that does not result in a
Condemnation Action, or (3) the total or partial taking of the
Land, the Improvements, the Personalty, or any other part of the
Mortgaged Property under the power of eminent domain or otherwise
and including any conveyance in lieu thereof;
(g) contracts,
options and other agreements for the sale of the Land, the
Improvements, the Personalty, or any other part of the Mortgaged
Property entered into by Borrower now or in the future, including
cash or securities deposited to secure performance by parties of
their obligations;
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Fannie Mae
Multifamily Security Instrument
Kansas
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Form 6025.KS
01-11
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Page 4
© 2011 Fannie Mae
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(h) Leases
and Lease guaranties, letters of credit and any other supporting
obligation for any of the Leases given in connection with any of
the Leases, and all Rents;
(i) earnings,
royalties, accounts receivable, issues and profits from the Land,
the Improvements or any other part of the Mortgaged Property, and
all undisbursed proceeds of the Mortgage Loan and, if Borrower is a
cooperative housing corporation, maintenance charges or assessments
payable by shareholders or residents;
(k) refunds
or rebates of Impositions by any municipal, state or federal
authority or insurance company (other than refunds applicable to
periods before the real property tax year in which this Security
Instrument is dated);
(l) tenant
security deposits;
(m) names
under or by which any of the above Mortgaged Property may be
operated or known, and all trademarks, trade names, and goodwill
relating to any of the Mortgaged Property, excluding therefrom the
names “SIR” and “Steadfast” (or any
derivation of either such name) and/or trademark rights associated
with such names or derivation thereof;
(n) Collateral
Accounts and all Collateral Account Funds;
(o) products,
and all cash and non-cash proceeds from the conversion, voluntary
or involuntary, of any of the above into cash or liquidated claims,
and the right to collect such proceeds; and
(p) all of
Borrower’s right, title and interest in the oil, gas,
minerals, mineral interests, royalties, overriding royalties,
production payments, net profit interests and other interests and
estates in, under and on the Mortgaged Property and other oil, gas
and mineral interests with which any of the foregoing interests or
estates are pooled or unitized.
“
Permitted Encumbrance ” means only

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