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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)

 

Fannie Mae Multifamily Security Instrument

  

Form 6025.KY

  

Kentucky

  

01-11

  

© 2011 Fannie Mae


TABLE OF CONTENTS

 

 

  

 

  

PAGE

 

1.

  

DEFINED TERMS

  

2.

  

SECURITY AGREEMENT; FIXTURE FILING

  

 

5

  

3.

  

ASSIGNMENT OF LEASES AND RENTS; APPOINTMENT OF RECEIVER; LENDER IN POSSESSION

  

 

6

  

4.

  

PROTECTION OF LENDER’S SECURITY

  

 

8

  

5.

  

NO OTHER INDEBTEDNESS AND MEZZANINE FINANCING

  

 

8

  

6.

  

DEFAULT; ACCELERATION; REMEDIES

  

 

9

  

7.

  

WAIVER OF STATUTE OF LIMITATIONS AND MARSHALING

  

 

10

  

8.

  

WAIVER OF REDEMPTION; RIGHTS OF TENANTS

  

 

10

  

9.

  

NOTICE

  

 

11

  

10.

  

MORTGAGEE-IN-POSSESSION

  

 

11

  

11.

  

RELEASE

  

 

12

  

12.

  

FUTURE ADVANCES

  

 

12

  

13.

  

GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE

  

 

12

  

14.

  

MISCELLANEOUS PROVISIONS

  

 

12

  

15.

  

TIME IS OF THE ESSENCE

  

 

13

  

16.

  

WAIVER OF TRIAL BY JURY

  

 

13

  

 

Fannie Mae Multifamily Security Instrument

  

Form 6025.KY

  

Page i

Kentucky

  

01-11

  

© 2011 Fannie Mae


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:

 

1.

Defined Terms.

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,

 

Fannie Mae Multifamily Security Instrument

  

Form 6025.KY

  

Page 1

Kentucky

  

01-11

  

© 2011 Fannie Mae


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.

 

Fannie Mae Multifamily Security Instrument

  

Form 6025.KY

  

Page 2

Kentucky

  

01-11

  

© 2011 Fannie Mae


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;

 

Fannie Mae Multifamily Security Instrument

  

Form 6025.KY

  

Page 3

Kentucky

  

01-11

  

© 2011 Fannie Mae


(g) contracts, options and other agreements for the sale of the Land, the Improvements, the Personalty, or any other part of the Mortgaged


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