HomeMy WebLinkAboutLZC202100005 Correspondence 2021-01-11 (4)DEED OF TRUST
Return to:
Lori H. Schweller, Esq. VSB #42399
Williams Mullen
321 East Main Street, Suite 400
Charlottesville, Virginia 22902
Tax Map Parcel Numbers: 560084120; 560084140
THIS DEED OF TRUST (the "Deed of Trust"), made this _ day of , 2020, by and among
SUNRISE PARK. LLC, a Virginia limited liability company ("Grantor"), and
TRUSTEE and TRUSTEE each having an address of
either of whom may act alone (whether one or more
hereinafter referred to as "Trustees"), as trustees for the benefit of SOUTHERN PROPERTY. LLC, a
Virginia limited liability company dba Southern Development Homes, its successors, participants and
assigns ("Beneficiary").
WITNESSETH:
Southwood Charlottesville, LLC ("Southwood") and Beneficiary have entered into a Lot
Purchase Agreement dated , 2020, as may be subsequently amended from time to time (the
"Agreement") whereby Grantor has agreed to sell and Beneficiary has agreed to purchase certain property
described in the Agreement. As consideration, Beneficiary is required to tender a good -faith Deposit in
the amount of FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($500,000.00) (the "Deposit")
to Southwood. The Deposit is either credited to Beneficiary at the time Beneficiary purchases certain
Lots, as defined in the Section 3 of the Agreement ("Deposit Credit"); retained by Southwood upon
certain events of default by the Beneficiary; or is returned to Beneficiary (in whole or in part) upon
certain events of termination of the Agreement, all as more specifically provided in the Agreement.
The terms upon which the Deposit is to be held and reimbursed are further evidenced by a
Promissory Note from Greater Charlottesville Habitat for Humanity, Inc. ("Habitat") and Southwood in
favor of Beneficiary made as of the date of this Deed of Trust (the "Note"). This Deed of Trust is to
secure the obligations of Southwood and Habitat in the Note.
The sole member of Grantor is Habitat. Habitat is also the sole member of Southwood. By virtue
of Beneficiary making the Deposit to Southwood, Grantor acknowledges that it is receiving a material
benefit. Grantor acknowledges that Beneficiary would not make the Deposit absent Grantor's agreement
to enter into this Deed of Trust in favor of Beneficiary.
Grantor, in consideration of the indebtedness herein recited and the trust herein created, hereby
grants and conveys to Trustees in trust, with power of sale, the real property located in City of
Charlottesville, Virginia, more particularly described in Exhibit "A" attached hereto and made a part
hereof (the "Property").
TOGETHER with all improvements now or hereafter erected thereon;
TOGETHER with all tenements, hereditaments, easements, rights of way, franchises, licenses,
permits and appurtenances in any way belonging or related thereto, and any reversions or remainders; and
also all present and future leases of said real property or any part thereof, and all extensions, renewals and
modifications thereof, or substitutions therefore and guarantee thereof, and all rents, issues and profits
therefrom;
TOGETHER with all right, title and interest of Grantor, if any, in and to the land lying in the bed
of any street, road or avenue, opened or proposed, in front of or adjoining the above described real estate
to the center line thereof;
TO HAVE AND TO HOLD the above granted property (the "Property") with the appurtenances,
and any after -acquired title Grantor may subsequently obtain therein, unto Trustees, their survivor, or
other successors in trust, forever; and Grantor warrants generally with full English covenants of title the
title to the Property, free from any liens prior to this Deed of Trust except as may be allowed herein, and
will execute such further assurances of title as may be requisite and defend same against all claims.
PROVIDED, ALWAYS, however, that if Grantor shall pay Beneficiary the indebtedness hereby
secured when due, and shall fully comply with every covenant and condition set forth herein or in the
Agreement, then these presents and the estate hereby granted shall cease, and be void, provided, further,
that until the happening of any occurrence or event which gives Beneficiary the option to cause the
indebtedness hereby secured to become due and payable, Grantor shall have the right to possess and enjoy
the Property. Upon full payment or credit of the Deposit, and the rest of the indebtedness hereby secured,
Trustees hereunder shall be entitled to a fee not exceeding Fifteen Dollars ($15.00) each, for the release
and reconveyance of the Property unto and at the cost of Grantor.
This conveyance is made in trust to secure and enforce the performance of the covenants and
agreements of Grantor herein contained and the obligations of Grantor under the Agreement until such
time as the Deposit is repaid in accordance with the Agreement. At that time, the lien of this Deed of
Trust will be released from the Property.
AND Grantorjointly and severally covenants and agrees as follows:
1. Performance of Obligations Hereby Secured. Grantor will promptly and diligently
perform its obligations under the Agreement.
2. Taxes. Grantor will pay when due all taxes, assessments, water rates, sewer rents and
other charges now or hereafter payable related to the Property, and if Grantor fails to do so, Beneficiary
may, without notice or demand to Grantor, pay the same or any of them. Moneys so paid shall be added
to the amount of indebtedness hereby secured and shall be payable on demand.
3. Insurance. Grantor shall keep any improvements on the Property insured against damage
by fire and the other hazards covered by a standard extended coverage insurance policy for the full
insurable value thereof (which, unless Beneficiary shall otherwise agree in writing, shall mean the full
repair and replacement value thereof without reduction for depreciation or co-insurance) and all such
insurance coverages set forth in the Agreement. All such insurance shall be in form and with companies
approved by Beneficiary; Grantor will assign and deliver to Beneficiary all policies of insurance required
herein, as collateral and further security for the indebtedness hereby secured, naming Beneficiary as
mortgagee pursuant to a standard mortgagee clause, without contribution, and being in all other respects
satisfactory to Beneficiary. If Grantor fails to comply with this Paragraph, Beneficiary may, at its option,
affect such insurance from year to year and pay the premiums therefor. Moneys so paid shall be added to
the amount of indebtedness hereby secured and shall be payable on demand. If Beneficiary receives any
money from such insurance for loss, such amount may, at the option of Beneficiary, be retained and
applied by Beneficiary toward payment of the last installments of principal secured by this Deed of Trust,
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to be applied in their inverse order of maturity, whether or not the same are then due and payable, or for
any other purpose satisfactory to Beneficiary, but Beneficiary shall not be obligated to see to the proper
application of any amount paid over to Grantor. Not less than thirty (30) days prior to the expiration dates
of any policy required of Grantor pursuant to this paragraph, Grantor will deliver to Beneficiary a renewal
policy marked "premium paid" or accompanied by other evidence of payment satisfactory to Beneficiary.
In the event of a foreclosure of this Deed of Trust, Beneficiary shall succeed to all rights of Grantor, in
and to all policies of insurance required herein.
4. No Alteration. No property now or hereafter covered by the lien of this Deed of Trust
shall be materially altered, nor shall any development or construction take place on the Property without
the prior written consent of Beneficiary, other than the development to be completed by Grantor pursuant
to the Agreement.
Default.
(a) The whole of the principal sum hereby secured shall become due at the option of
Beneficiary after default by Grantor under the Agreement and the expiration of any applicable cure
periods pursuant to the Agreement, or (i) after default in the payment when due of any tax, assessment,
water rate, sewer rent or other charge on, or against the Property; or (ii) after default with respect to the
insurance requirements herein; or (iii) upon the actual or threatened waste of or material alteration to the
Property except as permitted by Beneficiary pursuant to Paragraph 4 hereof, or (iv) after default
hereunder concerning any federal or local tax lien on the Property; or (v) upon default in the observance
or performance of any other covenants or agreements of Grantor hereunder; or (vi) if by order of a court
of competent jurisdiction, a receiver or liquidator or trustee of Grantor, or of any of its property, shall be
appointed and shall not have been discharged within thirty (30) days, or shall be consented to by Grantor,
or if Grantor shall be adjudicated bankrupt or insolvent, or any of the property of Grantor shall have been
sequestered and such decree shall have continued undischarged and unstayed for thirty (30) days after the
entry thereof, or if Grantor shall file a voluntary petition in bankruptcy or a petition for reorganization
under any applicable state or federal law, or if any involuntary petition against Grantor under any such
law shall be filed against Grantor and shall not have been discharged within thirty (30) days after the
filing thereof, or if Grantor shall make an assignment for the benefit of creditors, or shall at any time fail
to pay its debts generally as they become due.
(b) Should Beneficiary default in the performance of its obligations under the
Agreement, and following the expiration of any cure periods as provided in the Agreement at which time
the default continues, the Trustees, either of whom may act, are authorized and directed to execute a
Certificate(s) of Satisfaction, or other form of Release as required by Botetourt County, releasing the
Property from the lien of this Deed of Trust.
6. Beneficiary Actions. After any default in the performance of any of Grantor's
agreements herein, and after the expiration of any applicable cure periods pursuant to the Agreement,
Beneficiary may, at its option, perform the same and the reasonable and actual cost thereof shall
immediately be due from Grantor to Beneficiary on demand and shall be included within the indebtedness
hereby secured.
7. Notice. Every provision for notice and demand or request shall be deemed fulfilled and
effective when in writing and when (a) personally served on any one of the persons who shall at the time
hold the record title to the Property, or on their personal representatives or successors, or (b) sent via
certified mail, enclosed in a postpaid envelope addressed to any one of such persons at his or their address
last known to Beneficiary, or (c) sent via overnight courier service. As of the date hereof, such addresses
are as set forth in Paragraph 19.
8. Fees and Costs. If after default hereunder by Grantor, and after the expiration of any
applicable cure period pursuant to the Agreement, Beneficiary or Trustees shall incur or expend any
reasonable sums, including reasonable attorneys' fees, whether in connection with any action or
proceeding or not, to sustain the lien of this Deed of Trust or its priority, or to protect or enforce any of its
or their rights hereunder, or to recover any indebtedness hereby secured, or for any title examination or
title insurance policy relating to the title to the Property, or for any survey of the Property, all such sums
shall on notice and demand be paid by Grantor, and shall be deemed to be included within the
indebtedness hereby secured.
9. Condition of Property. Grantor will maintain the Property in good condition and repair,
will not allow the Property to waste, and will comply with all statutes and requirements of any
governmental authority relating to the Property, including all applicable environmental laws and
regulations; Grantor will at all times keep the Property free and clear of any mechanics' liens resulting
from work performed or materials delivered on behalf of Grantor; and without the written consent of
Beneficiary, Grantor will not initiate, join in or consent to any change in any private restrictive covenant,
zoning ordinance, or other public or private restrictions, limiting or defining the uses which may be made
of the Property or any part thereof, except as provided for in the Agreement. Nothing contained herein is
intended to expand the scope of the work under the Agreement.
10. Condemnation. In the event of any taking by eminent domain, or similar proceeding, any
payment based thereon shall be paid to the Grantor and shall further be paid to Beneficiary on a pro rated
basis to refund to Beneficiary that portion of the Deposit paid in conjunction with the property so
condemned.
11. Inspection. Upon prior notice to Grantor, Beneficiary and any persons authorized by
Beneficiary shall have the right to enter and inspect the Property at all reasonable times.
12. Waivers; Beneficiary's Discretion in Enforcement. Any failure by Beneficiary to insist
upon the strict performance by Grantor of any of the provisions hereof shall not be deemed to be a waiver
of any of the provisions hereof, and Beneficiary, notwithstanding any such failure, shall have the right
thereafter to insist upon the strict performance by Grantor of any and all of the provisions of this Deed of
Trust. Beneficiary may proceed to seek foreclosure or any other relief available at law or in equity in any
order which Beneficiary may determine, in its sole discretion. Grantor hereby waives all benefit that
might accrue to Grantor by virtue of any present or future homestead exemption or other law exempting
the Property, or any part of the proceeds arising from any sale thereof, from attachment, levy or sale on
execution, or providing for any appraisement, valuation, stay of execution, exemption from civil process,
redemption or extension of time for payment, all notices of Grantor's default; any right to have the
Property marshaled; and any right to trial by jury in any action brought on, under or by virtue of the
Agreement or this Deed of Trust and assents to a decree issued by any court of competent jurisdiction.
13. Foreclosure. If at the maturity of the indebtedness hereby secured, however such
maturity may be brought about (including without limitation the unrevoked election of Beneficiary
pursuant to the provisions of Paragraph 5 hereof to accelerate the maturity of the indebtedness hereby
secured), default should be made in the payment of the indebtedness hereby secured, Trustees shall
thereupon or at any time thereafter, at the request of Beneficiary, declare the indebtedness hereby secured
to be at once due and payable and take possession of the Property, and after providing and publishing
notice of such sale as is required by applicable law, sell the Property or any portion thereof requested by
Beneficiary to be sold, as an entirety or in parcels, by one sale or by several postponement of sales as may
be deemed by Trustees to be appropriate and without regard to any right of Grantor or any other person to
the marshalling of assets, at public auction, at such time or times, at such place or places, and upon such
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terms and conditions as Trustees shall deem appropriate. The Property may be sold in one parcel, as an
entirety or in such parcels and in such manner as the Beneficiary may, in its sole discretion, direct. Any
sale of a portion of the Property shall not affect the continuance of the lien and security interest of this
Deed of Trust which shall remain in full force and effect. The terms of sale being complied with,
Trustees shall deliver to the purchaser Trustees' deed conveying the Property so sold, without any
covenant or warranty expressed or implied. The recitals in Trustees' deed shall be prima facie evidence
of the truth of the statements made therein. Upon any sale of the Property under this Deed of Trust
whether under the assent to a decree, the power of sale, or by equitable foreclosure, the proceeds of sale
shall be applied (after paying all expenses of sale, including reasonable attorneys' fees and a reasonable
commission to the Trustees making the sale of two percent (2%) of the amount of the said sale or sales,
and also all taxes and assessments, rents and prior liens thereon due which Trustees or Beneficiary deem
it advisable or expedient to pay, and all sums advanced as herein provided for) to the payment of all then
due real estate taxes, to the payment of the then indebtedness hereby secured (including all other
applicable fees and charges, if any, to the date of payment), to all other liens according to their priority,
and finally paying over the surplus of such sale proceeds, if any, to Grantor or to any person entitled
thereto upon the surrender and delivery to the purchaser of possession of the Property, hereunder, less the
expense, if any, of obtaining possession thereof. Immediately upon the first insertion of any
advertisement or notice of sale, Grantor shall owe all reasonable expenses incident to said advertisement
or notice, all court costs and all expenses incident to any foreclosure proceedings under this Deed of
Trust, including reasonable attorneys' fees and a commission on the total amount of the indebtedness
equal to one percent (1%) of the then indebtedness hereby secured, and no party shall be required to
receive only that portion of the indebtedness hereby secured attributable to the Deposit unless the same be
accompanied by a tender of the then entire indebtedness hereby secured.
14. Rights Cumulative; Survival. The rights and powers of Beneficiary and Trustees arising
under this Deed of Trust shall be separate and cumulative and none of them shall be in exclusion of the
others. All covenants, representations and warranties of Grantor hereunder survive recording of this Deed
of Trust and continue thereafter.
15. Substitute Trustees. Beneficiary is hereby granted by Grantor the irrevocable power to
appoint as often as it desires a substitute Trustee or Trustees hereunder and to remove Trustees to be
exercised at any time hereafter, with or without cause and without notice of filing for record in the office
where this instrument is recorded a Deed of Appointment. Upon the recordation of such Deed of
Appointment, the Trustee so appointed shall thereupon, without any further act or deed of conveyance,
become fully vested with identically the same title and estate in and to the Property and with all the rights
and duties of such Trustee's predecessor in the trust hereunder with like effect as if originally named as
Trustee.
16. Definitions. The word `person" shall mean "an individual, corporation, partnership, trust
or unincorporated association," and pronouns of any general shall include the other genders, and either
the singular or plural shall include the other. All other capitalized terns not defined herein shall have the
meanings set forth in the Agreement.
17. Successors; Entire Agreement; Governing Law. This Deed of Trust, and all other
documents issued in conjunction therewith, shall be binding upon the parties thereto and their respective
heirs, executors, administrators, personal representatives, successors and assigns. This Deed of Trust may
not be changed orally, but only by an agreement in writing and signed by the parties against whom
enforcement of any waiver, change, modification or discharge is sought. The validity and construction of
all matters pertaining to this Deed of Trust are to be determined according to the laws of the
Commonwealth of Virginia.
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18. Transfer of Property or Interest in Grantor. The Property shall at all times be owned by
Grantor, both legally and equitably. Without Beneficiary's prior written consent the Property shall not be
the subject matter of any transaction whereby the legal or equitable title to all or any part of said Property
shall be transferred to anyone else, nor shall any entity interest in Grantor be transferred or conveyed, nor
shall any part of the Property be leased, nor shall the Property be further encumbered, except as
Beneficiary shall specifically approve in writing. If legal or equitable title to the Property or any part
thereof shall hereafter change by any means, or if there shall be a violation of any of the other preceding
restrictions, then the indebtedness hereby secured shall become immediately due and payable on the
demand of Beneficiary, without notice or any curative grace period. Notwithstanding the foregoing, the
Grantor shall have the right to grant easements and dedicate property in connection with the development
of the Property pursuant to the Agreement.
19. Addresses. Communications to the Beneficiary hereunder should be addressed to:
Southern Property, LLC dba Southern Development Homes, 142 South Pantops Drive, Charlottesville,
VA 22911, Attn: Frank Ballif with a copy to . The address
of Grantor is: 919 West Main Street, Charlottesville, Virginia 22903, Attn: Dan Rosensweig, President and
CEO. Each party is responsible for notifying the other of any address changes.
20. Captions. The captions herein set forth are for convenience of reference only and shall
not be deemed to define, limit, or describe the scope or intent of this Deed of Trust.
21. Security Agreement; Financing Statements. This Deed of Trust is intended to be a
security agreement pursuant to the Commonwealth of Virginia Uniform Commercial Code ("UCC") for
any and all items of property which, under applicable law, constitute fixtures and may be subject to a
security interest under Article 9 of the UCC (collectively, the "Collateral"). Grantor hereby grants
Beneficiary a security interest in the Collateral. This Deed of Trust constitutes a financing statement filed
as a fixture filing under the UCC in the real estate records of the County in which the Property is located
with respect to any and all fixtures included within the term Property.
22. Statutory Provisions. This Deed of Trust shall be construed to confer and impose on the
parties hereto the rights, duties, and obligations set forth in Virginia Code §§55.1-320 et seq., and to
incorporate herein the following provisions of Virginia Code §55.1-325 by short term reference:
22(a). All exemptions are hereby waived.
22(b). Subject to [c]all on default.
22(c). Renewal, extension, or reinstatement permitted.
22(d). Substitution of Trustees collectively or of any of them individually by the
Beneficiary is permitted for any reason whatsoever, and any number of times without exhaustion of the
right to do so.
22(e). Advertisement required, once a week, for two successive weeks in any
newspaper of general circulation in the County or City in which the Property is situate.
22(f). Any Trustee may act.
22(g). The Trustee may require a deposit in the amount of ten percent (10%) of the
unpaid principal indebtedness then secured hereby to accompany each bid at foreclosure sale or sale in
lieu thereof.
IN WITNESS WHEREOF, Grantor has executed this Deed of Trust as of the date first above
written.
GRANTOR: SUNRISE PARK, LLC, a Virginia limited liability company
Dan Rosensweig, Manager
COMMONWEALTH OF VIRGINIA
CITY/COUNTY of to wit:
The foregoing Deed of Trust was executed before me on this day of , 2020, by
Dan Rosensweig, as Manager of Sunrise Park, LLC, on behalf of the limited liability company.
[SEAL]
Notary Public
Print:
My commission expires:
My registration number is:
EXHIBIT `A"
ALL THAT certain property, including the general and limited common elements incident thereto,
described as all of Units No. 203 and 205 in Carlton East Condominium, situated in the City of
Charlottesville, Virginia, as defined and described in the Declaration of Carlton East Condominium, dated
June 27, 2012, recorded in the Clerk's Office of the Circuit Court of the City of Charlottesville, Virginia
as Instrument No. 201202872 (the "Declaration"), and as shown on a plat by Roudabush, Gale &
Associates, Inc., dated March 9, 2012, entitled, "PLAT SHOWING 1412 CARLTON CONDOMINIUM
SUBMITTED LAND, LOT 1, PHASE TWO, SUNRISE PARK, CHARLOTTESVILLE, VIRGINIA"
(the "Plat") and on condominium plans for Carlton East Condominium prepared by Stoneking/ von
Storch, Architects, dated August 31, 2011 (the "Plans"), which Plat and Plans are recorded in said Clerk's
Office immediately after the Declaration, reference to which Plat and Plans is hereby made for a more
particular description of the Property. Carlton East Condominium is located within 1412 Carlton
Condominium (the "Master Condominium"), which is shown and described on the Plans.
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