Exhibit 10.4
Prepared by, and after
recording
return to:
PNC Bank, National
Association
10731 Treena Street, Suite 201
San Diego, CA 92131
Attention: Kelli A. Tyler
PNC Loan No. 310230373
Fannie Mae No. 865556
MULTIFAMILY
MORTGAGE,
ASSIGNMENT OF LEASES AND
RENTS,
SECURITY AGREEMENT
AND FIXTURE FILING
(KENTUCKY)
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Fannie Mae
Multifamily Security Instrument
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Form 6025.KY
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Kentucky
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01-11
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© 2011 Fannie
Mae
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TABLE OF CONTENTS
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PAGE
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1.
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DEFINED
TERMS
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2.
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SECURITY
AGREEMENT; FIXTURE FILING
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5
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3.
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ASSIGNMENT
OF LEASES AND RENTS; APPOINTMENT OF RECEIVER; LENDER IN
POSSESSION
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6
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4.
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PROTECTION
OF LENDER’S SECURITY
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8
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5.
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NO OTHER
INDEBTEDNESS AND MEZZANINE FINANCING
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8
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6.
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DEFAULT;
ACCELERATION; REMEDIES
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9
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7.
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WAIVER OF
STATUTE OF LIMITATIONS AND MARSHALING
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10
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8.
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WAIVER OF
REDEMPTION; RIGHTS OF TENANTS
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10
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9.
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NOTICE
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10.
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MORTGAGEE-IN-POSSESSION
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11
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11.
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RELEASE
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12
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12.
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FUTURE
ADVANCES
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12
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13.
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GOVERNING
LAW; CONSENT TO JURISDICTION AND VENUE
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12
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14.
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MISCELLANEOUS PROVISIONS
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12
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15.
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TIME IS OF
THE ESSENCE
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13
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16.
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WAIVER OF
TRIAL BY JURY
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13
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Fannie Mae
Multifamily Security Instrument
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Form 6025.KY
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Page i
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Kentucky
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01-11
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© 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 August 24, 2011 is executed by SIR COOPER
CREEK, 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 $6,773,000.00
(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, maturing on September 1, 2018, (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 Jefferson, State of Kentucky, 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.
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,
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Fannie Mae
Multifamily Security Instrument
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Form 6025.KY
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Page 1
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Kentucky
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01-11
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© 2011 Fannie
Mae
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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; 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.
“ Impositions ”
means
(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;
(c) Taxes; and
(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.
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Fannie Mae
Multifamily Security Instrument
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Form 6025.KY
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Page 2
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Kentucky
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01-11
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© 2011 Fannie
Mae
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“ 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 .
“ 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:
(a) the Land;
(b) the Improvements;
(c) the Personalty;
(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;
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Fannie Mae
Multifamily Security Instrument
|
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Form 6025.KY
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Page 3
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Kentucky
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01-11
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© 2011 Fannie
Mae
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(g) contracts, options and other agreements for
the sale of the Land, the Improvements, the Personalty, or any
other part of the Mortgaged