Exhibit 10(r)
STATE OF NORTH CAROLINA FHA Case No.
053-11099-REF/CON
DEED OF TRUST
and Assignment of Rents,
Profits and Income (Multifamily)
___________________________________________________________________
This indenture, Made and entered into this 22nd day of
November, 1995 by and between BASS REAL ESTATE FUND-84, A NORTH
CAROLINA LIMITED PARTNERSHIP, a limited partnership organized and
existing under the laws of the State of North Carolina having its
principal office and place of business at 4000 Park Road,
Charlotte, North Carolina 28209 hereinafter called the party of the
first part, and James Kozuch and/or Michael Aquilino, either of
whom may act, Trustee(s), hereinafter called party of the second
part, and REILLY MORTGAGE GROUP, INC., a corporation organized and
existing under the laws of the District of Columbia hereinafter
called party of the third part.
This conveyance is made in trust to secure payment of a just
indebtedness of the party of the first part to the party of the
third part in the principal sum of THREE MILLION TWO HUNDRED THIRTY
THOUSAND AND NO/100ths DOLLARS ($3,230,000.00), evidenced by its
Note of even date herewith, bearing interest from date on
outstanding balances at SEVEN AND SIX TENTHS PERCENT (7.60%) per
annum, said principal and interest being payable in monthly
installments as provided in said Note with a final maturity of
DECEMBER 1, 2030, which Note is identified as being secured hereby
by a certificate thereon. Said Note and all of its terms are
incorporated herein by reference and this conveyance shall secure
any and all extensions thereof, however evidenced.
Now, therefore, in consideration of the aforesaid indebtedness
and the sum of ONE AND NO/100ths DOLLARS ($1.00) cash in hand paid,
the receipt of which is hereby acknowledged, the part of the first
part has bargained, sold, given, granted and conveyed and does by
these presents bargain, sell, give, grant and convey to the part of
the second part, his successors and assigns, all that certain lot
or parcel of land or leasehold situated in the City of Charlotte,
County of Mecklenburg, State of North Carolina, and more
particularly designated and described as follows:
See Exhibit "A" attached hereto and made a part hereof.
Together with all buildings and improvements thereon and all and
singular the tenements, hereditaments and appurtenances thereunto
belonging, or in anywise appertaining; including all after-acquired
title, franchise, licenses or easements; and together with all
right, title and interest of the party of the first part from time
to time in and to any land all heating, lighting, plumbing,
cooking, incinerating, ventilating, air-conditioning, laundry and
refrigerating equipment; all elevators and motors, cabinets,
engines and machinery, sprinkler systems, all storm and screen
doors, screens, awnings, window shades, blinds and floor coverings
and other property now or hereafter owned by the party of the first
part, or any successor in title, and attached to or used in
connection with the real estate or leasehold hereinafter described;
and together with all building materials and equipment located on
the premises and intended to be incorporated in the buildings or
other improvements; and also all furnishings and articles of
personal property now or hereafter attached to or in and about the
building or buildings now erected or hereafter to be erected on the
lands herein described, which are necessary to the complete and
comfortable use and occupancy of such building or buildings for the
purposes for which they were or are to be erected, including all
goods, chattels and personal property as are ever used or furnished
in operating a building, or the activities conducted therein,
similar to the one herein described and referred to, and all
renewals or replacements thereof or articles in substitution
therefor, whether or not the same are, or shall be attached to said
building or buildings in any manner.
The parties hereto agree that all the foregoing property to
the extent permitted by law shall be deemed to be affixed to and a
part of the realty.
To have and to hold the same, with all the rights, privileges
and appurtenances thereunto belonging, to the party of the second
part, his successors and assigns, forever. The party of the first
part covenants with the party of the second part that it is seized
of the premises in fee or as a leasehold and has the right to
convey the same; that the same are free and clear of all
encumbrances and that it will warrant and forever defend the
premises unto the party of the second part from and against the
lawful claims of all person whomsoever.
In trust, however, for the following purposes:
1. That the party of the first part will pay the Note at the
times and in the manner provided therein;
2. That the party of the first part will not permit or
suffer the use of any of the property for any purpose other than
the use for which the same was intended at the time this Deed of
Trust was executed;
3. That the Regulatory Agreement, if any, executed by the
party of the first part and the Secretary of Housing and Urban
Development, acting by and through the Federal Housing
Commissioner, which is being recorded simultaneously herewith, is
incorporated in and made a part of this Deed of Trust. Upon
default under the Regulatory Agreement and upon the request of the
Secretary of Housing and Urban Development, acting by and through
the Federal Housing Commissioner, the party of the third part, at
its option, may declare the whole of the indebtedness secured
hereby to be due and payable;
4. That all rents, profits and income from the property
covered by this Deed of Trust are hereby assigned to the party of
the third part for the purpose of discharging the debt hereby
secured. Permission is hereby given to the party of the first part
so long as no default exists hereunder, to collect such rents,
profits and income for use in accordance with the provisions of the
Regulatory Agreement;
5. That upon default hereunder party of the third part shall
be entitled to the appointment of a receiver by any court having
jurisdiction, without notice, to take possession and protect the
property described herein and operate same and collect the rents,
profits and income therefrom;
6. That at the option of the party of the first part the
principal balance secured hereby may be reamortized on terms
acceptable to the Secretary of Housing and Urban Development,
acting by and through the Federal Housing Commissioner if a partial
prepayment results from and award in condemnation in accordance
with provisions of Paragraph 8 herein, or from an insurance payment
made in accordance with provisions of Paragraph 7 herein, where
there is a resulting loss of project income;
7. That the party of the first part will keep the
improvements now existing or hereafter erected on the deeded
property insured against loss by fire and such other hazards,
casualties, and contingencies, as may be stipulated by the
Secretary of Housing of Urban Development, acting by and through
the Federal Housing Commissioner upon the insurance of the Deed of
Trust and other hazards as may be required from time to time by the
party of the third part, and all such insurance shall be evidenced
by standard Fire and Extended Coverage Insurance Policy or
Policies, in amounts not less than necessary to comply with the
applicable Coinsurance Clause percentage, but in no event shall the
amounts of coverage be less than eight (80) percent of the
Insurable Values or not less than the unpaid balance of the insured
Deed of Trust, whichever is the lesser, and in default thereof the
party of the third part shall have the right to effect insurance.
Such policies shall be endorsed with standard Mortgage clause with
loss payable to the party of the third part and the Secretary of
Housing and Urban Development as interest may appear, and shall be
deposited with the party of the third part;
That if the premises covered hereby, or any part thereof,
shall be damaged by fire or other hazard against which insurance is
held as hereinabove provided, the amounts paid by any insurance
company in pursuance of the contract of insurance to the extent of
the indebtedness then remaining unpaid, shall be paid to the party
of the third part, and, at its option, may be applied to the debt
or released for the repairing or rebuilding of the premises;
8. That all awards of compensation in connection with
condemnation for public use of or a taking of any of that property,
shall be paid to the party of the third part to be applied to the
amount due under the Note secured hereby in (1) amounts equal to
the next maturing installment or installments of principal and (2)
with any balance to be credited to the next payment due under the
Note. That all awards of damages in connection with any
condemnation for public use of or injury to any residue of that
property, shall be paid to the party of the third part to be
applied to a fund held for and on behalf of the party of the first
part which fund shall, at the option of the party of the third
part, and with the prior approval of the Secretary of Housing and
Urban Development, either be applied to the amount due under the
Note as specified in the preceding sentence, or be disbursed for
the restoration or repair of the damage to the residue. No amount
applied to the reduction of the principal amount due in accordance
with (1) shall be considered an optional prepayment as the term is
used in this Deed of Trust and the Note secured hereby, nor relieve
the party of the first part from making regular monthly payments
commencing on the first day of the first month following the date
of receipt of the award. The party of the third part is hereby
authorized in the name of the party of the first part to execute
and deliver valid acquittances for such awards and to appeal from
such awards.
9. If the party of the first part shall well and truly
perform all the terms and conditions of this Deed of Trust and of
the Note secured hereby, then this conveyance shall be null and
void, and shall be properly canceled of record;
10. If, however, the party of the first part shall default in
making any monthly payments provided for herein or in the Note
secured hereby and if such default is not made good prior to the
due date of the next such installment or if the party of the first
part shall default in the performance of any covenants,
stipulations or conditions contained herein, then all sums owing by
the party of the first part to the party of the third part under
this Deed of Trust, or under the Note secured hereby shall
immediately become due and payable at the option of the party of
the third part; and, on the application of the party of the third
part, it shall be lawful for and the duty of the party of the
second part, and he is authorized and empowered, to sell the lands
and premises or the leasehold estate hereinabove before described
at public auction to the highest bidder for cash, at the usual and
customary place for such sales at he courthouse in Mecklenburg
County, State of North Carolina in accordance with North Carolina
law, and upon such sale the party of the second part shall collect
the purchase money and convey title to the purchaser in fee simple;
and after retaining one percentum (1%) of the proceeds of such sale
as compensation for the making thereof and for all services
performed, and after retaining also all expenses incurred,
including reasonable attorney's fees, the party of the second part
shall apply so much of the residue as may be necessary to pay off
the debt secured hereby, including accrued interest thereon, as
well as any other sums owing to the party of the third part by the
party of the first part pursuant to this instrument, and the
surplus, if any, shall be paid to the party of the first part.
The party of the first part agrees that in the event of a sale
hereunder the party of the third part shall have the right to bid
at such sale and become the purchaser thereat;
11. That, together with and in addition to the monthly
payments of interest or of principal and interest payable under the
terms of the Note secured hereby, it will pay to the party of the
third part, on the first day of each month, after date hereof and
continuing until the debt security hereby is paid in full, the
following sums:
(a) An amount sufficient to provide the party of the third
part with funds to pay the next mortgage insurance premium if this
instrument and the Note secured, hereby are insured or a monthly
service charge, if they are held by the Secretary of Housing and
Urban Development, as follows:
(i) If and so long as said Note of even date and this
instrument are insured or are reinsured under the provisions
of the National Housing Act, an amount sufficient to
accumulate in the hands of the party of the third part one
month prior to its due date the annual mortgage insurance
premium, in order to provide the party of the third part with
funds to pay such premium to the Secretary of Housing and
Urban Development pursuant to the National Housing Act, as
amended, and applicable Regulations thereunder, or
(ii) If and so long as said Note of even date and this
instrument are held by the Secretary of Housing and Urban
Development, a monthly service charge in an amount equal to
one-twelfth of one-half (1/12 of 1/2) percent of the average
outstanding principal balance due on the Note computed for
each successive year beginning with the first day of the month
following the date of this instrument, if the Secretary of
Housing and Urban Development is the party of the third part
named herein, or the first day of the month following
assignment, if the Note and this instrument are assigned to
the Secretary of Housing and Urban Development without taking
into account delinquencies or prepayment;
(b) A sum equal to the ground rents, if any next due, plus
the premiums that will next become due and payable on policies of
fire and other property insurance covering the premises covered
hereby, plus water rates, taxes and assessments next due on the
premises covered hereby (all as estimated by the party of the third
part) less all sums already paid therefor divided by the number of
months to elapse before one month prior to the date when such
ground rents, premiums, water rates, taxes and assessments will
become delinquent, such sums to be held by the party of the third
part in trust to pay said ground rents, premiums, water rates,
taxes, and special assessments;
(c) All payments mentioned in the two preceding subsections
of this paragraph and all payments to be made under the Note
secured hereby shall be added together and the aggregate amount
thereof shall be paid each month in a single payment to be applied
by the party of the third part to the following items in the order
set forth:
(i) premium charges under the Contract of Insurance with the
Secretary of Housing and Urban Development, acting by and
through the Federal Housing Commissioner or service charge;
(ii) ground rents, taxes, special assessments, water rates,
fire and other property insurance premiums;
(iii) interest on the Note secured hereby;
(iv) amortization of the principal of said Note;
12. In the event the party of the first part fails to pay any
sums provided for in this Deed of Trust, the party of the third
part, at its option, may pay the same. Any excess fund accumulated
under (b) of the preceeding paragraph remaining after payment of
the items therein mentioned, shall be credited to subsequent
monthly payments of the same nature required thereunder; but if any
such item shall exceed the estimate therefor, or if the party of
the first part shall fail to pay any other governmental or
municipal charge, the party of the first part shall forthwith make
good the deficiency or pay the charge before the same become
delinquent or subject to interest or penalties and in default
thereof the party of the third part may pay the same. All sums
paid by the party of the third part and any sums which the party of
the third part may be required to advance to pay mortgage insurance
premiums shall be added to the principal of the debt secured hereby
and shall bear interest from the date of payment at the rate
specified in the Note and shall be due and payable on demand. In
case of termination of the Contract of Mortgage Insurance by
prepayment of the Deed of Trust in full, or otherwise (except as
hereinafter provided), accumulations under (a) of the preceding
paragraph hereof not required to meet payments due under the
Contract of Mortgage Insurance, shall be credited to the party of
the first part. If the property is sold under foreclosure or is
otherwise acquired by the party of the third part after default,
any remaining balance of the accumulations under (b) of the
preceding paragraph shall be credited to the principal of the Deed
of Trust as of the date of the commencement of foreclosure
proceedings or as of the date the property is otherwise acquired;
and accumulations under (a) thereof shall be likewise credited
unless required to pay sums due the Secretary of Housing and Urban
Development, acting by and through the Federal Housing Commissioner
under the Contract of Mortgage Insurance;
13. That the party of the first part will keep the said
premises in as good order and condition as they are now and will
not commit or permit any waste thereof, reasonable wear and tear
excepted and in the event of the failure of the party of the first
part to keep the buildings on said premises and those to be erected
on said premises, or improvements thereon, in good repair, the
party of the third part may make such repairs as in its discretion
it may deem necessary for the proper preservation thereof, and any
sums paid for such repairs shall bear interest from the date of
payment at the rate specified in the Note, shall be due and payable
on demand and shall be fully secured by this Deed of Trust;
14. That if there be a sale of the premises herein conveyed,
as provided above, the party of the first part shall become tenant
at will of the purchaser and shall be entitled to possession for
only ten (10) days after the date of delivery of the deed to the
purchaser; and after such period the party of the first part does
hereby release and relinquish all right, title, and interest in and
to said premises, or the possession thereof;
15. That no sale of the premises described above and no
forbearance on the part of the party of the third part and no
extension of the time for payment of the debt secured hereby given
by the party of the third part shall operate to release, discharge,
modify, change or affect the original liability of the party of the
first part herein, either in whole or in part;
16. That if foreclosure proceedings are instituted under this
Deed of Trust, the party of the second part is authorized to take
possession of the premises above described, and collect any rental,
accrued or to accrue; or he may let the premises or any part
thereof, receive the rents, income and profits therefrom, and hold
the proceeds subject to the order of the court for the benefit of
the party of the third part, pending the final decree in the
foreclosure proceedings, and during any period allowed by law for
the redemption from any sale ordered in such proceeding; and the
party of the second part may act irrespective of the value of the
property described or its adequacy to secure or discharge the
indebtedness then owing;
17. That in case the party of the third part shall for any
reason desire to replace the party of the second part or any of his
or its successors as trustees hereunder, said party of the third
part, its successors or assigns shall have and is hereby granted
full power and authority to remove said trustee and to appoint his
or its successor by instrument in writing, duly acknowledged or
proved so as to entitle the same to record in this State, and such
new trustee shall thereupon become successor to the title of the
said property and the same shall become vested in him in trust for
the purposes and objects of these presents with all the powers,
duties, and obligations herein conferred on the said party of the
second part, in the same manner and to the same effect as though he
or it were named herein as trustee;
18. That the party of the first part will not voluntarily
create or permit to be created against the property subject to this
Deed of Trust any lien or liens inferior or superior to the lien of
this Deed of Trust and further that it will keep and maintain the
same free from the claim of all persons supplying labor or
materials which will enter into the construction of any and all
buildings now being erected or to be erected on said premises;
19. That the improvements about to be made upon the premises
above described and all plans and specifications comply with all
municipal ordinances and regulations made or promulgated by lawful
authority, and that the same will upon completion comply with all
such municipal ordinances and regulations and with the rules of the
fire rating or inspection organization, bureau, association or
office having jurisdiction, which are now or may hereafter become
applicable;
20. MARKED OUT COMPLETELY.
21. The party of the first part covenants and agrees that so
long as this Deed of Trust and the said Note secured hereby are
insured or held by the Secretary of Housing and Urban Development
under the provisions of the National Housing Act, it will not
execute or file for record any instrument which imposes a
restriction upon the sale or occupancy of the mortgaged property on
the basis of race, color, or creed;
22. That no waiver of any covenant herein or of the Note
secured hereby shall at any time thereafter be held to be a waiver
of the terms hereof or of the Note secured hereby;
23. The covenants herein contained shall bind, and the
benefits and advantages shall inure to the legal representatives,
successors or assigns of the parties hereto. Whenever used, the
singular number shall include the plural, the plural the singular,
and the use of any gender shall be applicable to all genders.
24. MARKED OUT COMPLETELY.
25. Notwithstanding any other provision contained herein or
in the Note, it is agreed that the execution of the Note shall
impose no personal liability upon the party of the first part for
payment of the indebtedness evidenced thereby and in the event of
a default, the holder of the Note shall look solely to the property
subject to this Deed of Trust and to the rents, issues and profits
thereof in satisfaction of the indebtedness evidenced by the Note
and will not seek or obtain any deficiency or personal judgment
against the party of the first part except such judgment or decree
as may be necessary to foreclose or bar its interest in the
property subject to this Deed of Trust and all other property
mortgaged, pledged, conveyed or assigned to secure payment of the
Note; provided, that nothing in this condition and no action so
taken shall operate to impair any obligation of the make under the
Regulatory Agreement herein referred to and made a part hereof.
In witness whereof, the party of the first part has caused
these presents to be signed under seal the day and year written
above.
BASS REAL ESTATE FUND-84, A
NORTH CAROLINA LIMITED PARTNERSHIP [SEAL]
[CORPORATE SEAL] By: Marion Bass Real Estate Group, Inc.
Managing General Partner
ATTEST:
By: ___________________________________
______________________ Ronald L. Paschal
Secretary Vice President
______________________________________________________________________________
State of North Carolina ] ACKNOWLEDGMENT
]:ss
County of Mecklenburg ]
On this 22nd day of November personally came before me J.
MICHAEL NEESE, a Notary Public of the County of Mecklenburg, State
of North Carolina, Ronald L. Paschal, who, being by me duly sworn,
says that he is Vice President of Marion Bass Real Estate Group,
Inc., a corporation, the Managing General Partner of Bass Real
Estate Fund-84, A North Carolina Limited Partnership, and that the
seal affixed to the foregoing instrument is the corporate seal of
said Managing General Partner and that said instrument was signed
and sealed by him for and on behalf of said Limited Partnership by
authority duly given by said Managing General Partner. And said
Limited Partnership acknowledged said instrument to be the act and
deed of said Limited Partnership.
Witness my hand and official seal.
_______________________________
Notary Public
[SEAL]
My Commission expires: 05-18-99
___________________________________________________________________________
State of North Carolina,
County of Mecklenburg
The foregoing certificate of _____________________________, a
notary public of the County of ____________________, duly
authenticated by his notarial seal thereto attached, is adjudged to
be correct. This ________ day of November, 1995.
___________________________________________________________________________
State of North Carolina
Loan No. 053-11099-REF/CON
___________________________
DEED OF TRUST
___________________________
BASS REAL ESTATE FUND-84,
A NORTH CAROLINA LIMITED PARTNERSHIP
To
REILLY MORTGAGE GROUP, INC.
___________________________
Filed for registration in _________
County Registry, this ___ day of
___________, 1995, at _______________
o'clock __.m. Recorded in Book
_____ at page _____ this ____________
day of __________________, 19___.
Verified and property indexed same date.
__________________________
__________________________
Register of Deeds,
Mecklenburg County, N.C.
Drawn By and Mail To:
William N. Harris
Box 47, Kennedy Covington Lobdell & Hickman, L.L.P.
BK: 08375 PG: 0470/0475 #:0193 22.00
JUDITH A. GIBSON REG. OF DEEDS MECK, NC
FILED FOR REGISTRATION 11728/95 11:49
THE CHASE
EXHIBIT A
BEGINNING at a new iron pin located at the northeasterly
intersection of Shenandoah Avenue (a 60-foot public right-of-way)
and Rockway Drive (a 30-foot public right-of-way); thence with the
easterly margin of Shenandoah Avenue N. 52-52-15 W. 145.46 feet to
a new iron pin located in the easterly margin of Independence
Boulevard (variable width public right-of-way); thence with the
easterly margin of said Independence Boulevard N. 26-44-22 W. 39.46
feet to a new iron pin; thence N. 23-03-35 W. 189.54 feet to a
point in Briar Creek; thence with Briar Creek the following five
(5) courses and distances: (1) N. 17-30-00 E. 64.65 feet to a
point, (2) N. 07-00-00 W. 120.00 feet to a point, (3) N. 09-00-00
E. 110.00 feet to a point, (4) N. 22-30-00 E. 270.00 feet to a
point, (5) N. 52-25-56 E. 91.35 feet to a point located in the
southwesterly margin of Commonwealth Avenue (a 60-foot public
right-of-way); thence with the southwesterly margin of said
Commonwealth Avenue S. 52-52-15 E. 487.07 feet to an existing iron
pin at the northeasternmost corner of the E.T. Mangum property (now
or formerly); thence with the line of said E.T. Mangum property the
following two (2) courses and distances: (1) S. 37-01-37 W. 299.98
feet to an existing iron pin, (2) S. 52.51.12 E. 60.12 feet to a
new iron pin in the westerly margin of the right-of-way of the
above-referenced Rockway Drive; thence with the westerly margin of
said Rockway Drive S. 37-16-58 W. 405.00 feet to the POINT AND
PLACE OF BEGINNING, containing approximately 6.9465 acres according
to survey for Bass Real Estate Fund-84, a North Carolina limited
partnership re: The Chase prepared by R.B. Pharr & Associates,
P.A., dated October 18, 1995.