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HomeMy WebLinkAboutWPO201600046 Agreements WPO VSMP 2008-12-04 I t v4141101 S41010 lnstrument COMM Numbs It 11. 8 2 1 Commonwealth of Virginia Land Record Instruments Cover Sheet-Form A 11111111111111 fiLS VLR Cover Sheet Agent 1.0.1171 Doc ID: 0040011630019 TVDe: DEE Recorded: 12/06/2006 at 02:34:06 PM _ Fee Rat: $3e.00 Pace 1 o1 10 T C tate of Instrument: 12/4/2008Ai enarl,e county vA ( 1 Debra h. 8h1DD Clark X A instrument Type: [AG-PL 1 FMs(II13667 P 696-714 E P Number of Parcels [ 2] X Number of Pages [ 17] E (Box for Deed Stamp Only)M City[]County[] (Albemarle County ] P First and Second Granton L I Last Name I First Name I Middle Name or InkM1 I Suffix x [Bef Reit Inc 11 ]( 1( ] ... • [HTC Hotel LLC ][ 11 11 ] First and Second Grantees Last Name I First Name I Middle Name or Inmal I Suffix D© [Ref Reit Inc 1[ I H[ l ❑® [HTC Hotel LLC ]( 1[ ]( ] Grantee Address (Name) [HTC Hotel LLC ] (Address 1) [8302 Brook Road ] (Address 2) ( 1 (City,State,Zip) [Richmond ] [VA] [23227 ] Consideration[0.00 1 Existing Debt[0.00 1 Assumption Balance[0.00 ] Prior Instr.Recorded at:City El County® [Albemarle County ] Percent.In this Jude. [ 100] Book [ ] Pays ( I Instr.No [ 1 Parcel Identification No(PIN) [32-4105 ] Tax Map Num. (If different than PIN) [32-41D5 ] Short Property Description [acreage ] [ ] Current Property Address(Address 1) (n/a ] (Address 2) [n/a ] (City,Sate,Zip) (n/a 1[ I[ 1 Instrument Prepared By (Kane d,Jeffries PC ] Recording Paid for By [Kane&Jeffries PC ] Return Recording To (Name) [Kane&Jeffries PC ] (Address 1) [7110 Forest Avenue ] (Adams 2) ( l (City,Sate,Zip) [Richmond ][VA][23228 ] Customer Case ID [ 1 ( 11 1 Ih ,, • % .4'7 'iri 1, A�j�ti[1�+,;,1+ ri 144' +.1'f,1�.: r, r1,p,,V,; I instrument Control Number Commonwealth of Virginia Land Record Instruments Continuation Cover Sheet Form C Ems VLR Cow$hast Agent LW] T (T4 4r1 C Date of instrument: (12/4/2008 ] A R R 0 Instrument Type: [Aa-PL ] XAAR N N P Number of Parols [ 2] e T T X o ti Number of Pages [ 17] B R tE City❑County® [Albemarle County ] (Box to Deed Stump Orly) M Grantors/Grantees/Parcel Continuation Form C P Last Name I First Name I Middle Name or Initial I Suffix [Hdtymead Comer LLC J[ ][ Jr ] ❑ [Hdlymeed Comer LLC J( If 1[11 ] DO❑❑ [ if ]f J( 1 R0L0 [ 11 it It Prior Instr.Recorded at:City 0 County® (Albemarle County ] Percent.In this Jude. [ 100] B ook ( ] Page [ J Instr.No [ J Parcel Identification No(PIN) (32-41D4 1 Tax Map Num. (N dfferent then FIN) [32-41D4 ] Short Property Description [acreage 1 [ 1 Current Property Address(Address 1) [n/a 1 (Address 2) (n/a 1 (City,Mate,zip) [r/a 1[ 1[ 1 Prior Instr.Recorded at:City 0 County 0 [ 1 Percent.In this Jude. [ ] B ook [ ] Palle [ 1 Instr.No [ 1 Parcel Identification No(PIN) ( ] Tax Map Num. (ti different than PIN) [ ] Short Property Description [ 1 [ 1 Current Property Address(Address 1) [ ] (Address 2) [ 1 (DRY,thaw,cep) 1 1( 1[ 1 , : ,,,' I[ti; Cover Shoat Page tt 2 of 2 114821 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT(this"Agreement")is made and entered into as of this 4th day of December,2008,by and among BEF REIT,INC.,an Ohio corporation("Bob Evans"),HTC HOTEL,LLC,a Virginia limited liability company("HTC"),and HOLLYMEAD CORNER,LLC,a Virginia limited liability company("Hollymead").The foregoing parties are sometimes referred to herein individually as"Party"and collectively as'Parties". Recitals: A. The Parties are owners of certain real estate situated in Albemarle County,Virginia, known as Lots A,B,and C,in Block Cl,Hollymead Towncenter,as shown on that certain plat entitled "PLAT SHOWING BOUNDARY ADJUSTMENT FOR TAX MAP 32 PARCELS 41D4&41D5,LOTS A&B,BLOCK Cl HOLLYMEAD TOWNCENTER,RIO DISTRICT ALBEMARLE COUNTY, VIRGINIA"("Plat"),dated August 28,2008,revised September 23,2008,and which is recorded in the Clerk's Office of the Circuit Court of Albemarle County,Virginia prior hereto. Said lots are sometimes referred to herein individually as"Lot A","Lot B"and"Lot C",and collectively as"Lots". B. The Lots are benefited and burdened by that certain Declaration dated September 1, 2005,recorded October 12,2005,in Deed Book 3085,page 361 of the Clerk's Office of the Circuit Court of Albemarle County,Virginia(the"Declaration"). Section 2.01 of the Declaration creates certain cross access and parking easements which are applicable to the Lots. C. In connection with the development of the Lots for commercial use,certain infrastructure work needs to be completed upon the Lots and the adjacent open space designated as TMP 32-41D3 on the Plat("Pond Lot"). The Parties enter into this Agreement for the purpose of establishing certain agreements in connection with the completion of,and payment for,certain development work and the use and enjoyment of the Lots and the Pond Lot. Agreement: NOW THEREFORE,for one dollar($1.00)and other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged,the Parties hereby agree as follows: 1. Recitals.The foregoing recitals are made part of the agreement of the Parties. 2. Declaration. The Parties acknowledge that the cross parking and access easements created in Section 2.01 of the Declaration are applicable to the Lots and hereby ratify and confirm such easements. In addition,and to further the intention of the Parties with respect to such easements,the Parties agree that the areas shown marked on Exhibit"A"(the"Block Cl Designated Areas")attached hereto shall be developed as depicted on Exhibit"A"and shall not be relocated without the prior written consent of the Parties. Notwithstanding the foregoing such consent shall not be required if the relocation is at the request of Albemarle County and such relocation does not adversely affect the other Lots access to and from Route 29(Seminole Trail). 3. Development Obligations and Reimbursement to the Owners. (a) HTC and Hollymead shall complete each of the following initial development obligations: 1 (i) HTC shall cause the Block Cl Designated Areas to be engineered,surveyed, staked and graded,shall install(or re-install after grading)all underground infrastructure and utilities,and shall install curbing,paving and landscaping to Albemarle County specifications(the"HTC Improvements")in accordance with county approved"ARB Review Plan—Overall Layout Plan" prepared by Dominion Development Resources,LLC,and Rummel,Klepper&Kahl,LLP(collectively, the"Engineer")a portion of which plan is attached hereto as Exhibit"A"for reference. (ii) Hollymead shall install a retaining wall and forebay,shall relocate drainage pipes,shall reconfigure head walls,shall remove manholes,and shall install landscaping on Lot A,Lot B and the Pond Lot further described on Exhibit A attached hereto(the"Hollymead Improvements"). Hollymead agrees to begin construction of the Hollymead Improvements at the same time work has begun on the HTC Improvements.In the event that Albemarle County requires completion of the Hollymead Improvements or improvements on the Pond Lot before approving HTC's site plan or HTC's certificate of occupancy,Hollymead will complete all such improvements within 30 days notice by HTC of said county requirement. (b) HTC shall be responsible for the completion of,and the initial payment for,the HTC Improvements and further described in Exhibit A. (c) Bob Evans and Hollymead shall each be responsible for their proportionate and respective share of the cost of the HTC Improvements.Each Party's share of the cost of the HTC Improvements on their respective Lot shall be determined and provided by the site development company ("Site Developer")prior to the commencement of the HTC improvements for approval by the Parties. The Site Developer shall provide a Lot A,Lot B,and Lot C estimate and each Parties share of any overages at the time final payment is due shall be determined by the Site Developer based on which Lot is attributable to the additional work and costs. Both Bob Evans and Hollymead shall have the opportunity to approve all estimates and plans for such work on their respective lots prior to the commencement of the work by HTC,and will have the right to receive"verified invoices"(hereinafter defined)for such work. The portion of the plans attached hereto as Exhibit A entitled"ARE Review Plan—Overall Layout Plan" showing the HTC Improvements have been approved by all parties to this Agreement. (d) Prior to the commencement of the HTC Improvements,Hollymead shall execute a credit line promissory note payable to HTC,secured by a deed of trust lien its parcel for its estimated proportionate and respective share of the cost of the HTC Improvements installed on Hollymead's Lot C. The note and deed of trust shall be in the form attached hereto as Exhibit"B"and Exhibit"C".The note shall bear interest at eight percent(8%)per annum with interest only payments being made semi-annually and the note shall become due and payable in one final balloon payment to HTC upon the occurrence of any one of the following events:(i)the commencement of development of Lot C(for Hollymead),or(ii) the sale or conveyance of Lot C to a third party(for Hollymead),or (iii)two(2)years after written notice from HTC to Hollymead of the completion of the HTC Improvements.In the event Hollymead's share exceeds the amount of the note,Hollymead agrees to pay such overage within 30 days demand by HTC. (e) Bob Evan's shall pay its proportionate share of the HTC Improvements upon commencement of development on the Bob Evan's Lot A(by an owner or a tenant)or upon the sale of the Bob Evan's Lot A provided HTC has provided to"verified invoices"and notice to Bob Evan's that the HTC Improvements have been conunenced and/or completed on the Bob Evan's Lot A.The terms "verified invoices"shall mean invoices that have been certified as being paid by HTC by signed notation on the invoice for work completed on Bob Evan's Lot A. (1) By previous agreement,Bob Evans shall reimburse Hollymead for its proportionate share of the cost to install the retaining wall within fifteen(15)days after the completion thereof and demand 2 • • 'fir/ 1.44110 for payment has been issued.Bob Evans"proportionate share"of the cost to construct the retaining wall shall be equal to the square footage of the portion of the wall that is constructed upon or adjacent to Lot A times$25.00 per square foot,not to exceed a total of Thirty-Five Thousand Dollars($35,000.00). (g) By previous agreement,HTC will provide to Hollymead up to the amount of$25,000.00 when Hollymead commences work on the retaining wall and forebay. (h) It is the intention of Bob Evans,Hollymead,and HTC to contract with one site development company selected by HTC that will perform all of the work described above(except for landscaping unless contractor chooses to include this work in its bid). As such,all of the above work shall commence at,or near the same time and be completed at,or near the same time. (i) In the event of a dispute as to a Party's proportionate share of the costs of either the HTC Improvements or the Hollymead Improvements,the decision of the Engineer shall be binding upon all Parties to this Agreement. 4. Utilities.The Parties acknowledge that various utilities will be extended across all the Lots below ground. Accordingly,and notwithstanding any language in Section 2.03 of the Declaration to the contrary,each of the Parties hereby grant the right and easement to the other Parties for the installation, operation,use,repair and replacement of Utility Lines(as defined in the Declaration). 5. Construction Easement. The Parties acknowledge that during the construction of the HTC Improvements and the Hollymead Improvements that construction vehicles may cross a neighboring parcel outside of the Block Cl Designated Areas;therefore,each Party hereby grants to the other Parties a construction easement for access over their respective Lot for the construction of the HTC Improvements and the Hollymead Improvements,provided that such construction access does not interfere with the development of any Lot and does not damage any improvement on any Lot. 6. Construction Standards.All work hereunder shall be completed(i)with due diligence and in a good and workmanship-like manner;(ii)in compliance with all legal requirements;(iii)free from mechanic's and/or materialmen's liens;and(iv)in accordance with the standards of other first class commercial developments in the Hollymead area of Charlottesville,Virginia. The granting of construction bids for all work to be performed must be submitted in writing by reputable contractors and be of a scope and scale commensurate with the work to be performed. No Party shall authorize final payment to any contractor until the appropriate governmental authority or department has passed the work that is subject to governmental approval. 7. Default and Remedies. (a) If any Party shall default in the performance of any of its obligations hereunder(such Party being hereinafter called a"Defaulting Party"),which default adversely affects another Party herein or occupant of any of the other Lots(an"Affected Party")in addition to all other remedies it may have in law or in equity,after fifteen(15)days prior written notice to the Defaulting Party(or in the event of a emergency after such notice is practical under the circumstances)and the failure of the Defaulting Party to cure such default,the Affected Party shall have the right,but not the obligation,to perform such obligation(s)on behalf of Defaulting Party. In the event such default is not susceptible to cure within fifteen(15)days,the Affected Party's right to self-help shall not arise unless the Defaulting Party fails to commence to cure the default within fifteen(15)days or fails to diligently and continuously pursue a cure within a reasonable time. In such event the Defaulting Party shall promptly reimburse the Affected Party for the costs to cure,together with interest thereon from the day of the outlay at a rate which is four percent(4%)above the"prime rate"as reported in The Wall Street Journal. In addition,all monetary 3 amounts due and owing by the Defaulting Party shall constitute a lien on the Lot of the Defaulting Party for the benefit of the Affected Party(s)which lien may be perfected by filing a notice of lien in the Clerk's Office of the Circuit Court of Albemarle County,Virginia. (b) No delay or omission of any Party in the exercise of any right or remedy shall impair any such right or remedy,or be construed to be a waiver thereof. Any waiver of a breach or a default of this Agreement shall not be construed to be a waiver of any subsequent breach or default of the same or any other provisions hereof. Except as otherwise expressed in this Agreement,no remedy shall be exclusive but each shall be cumulative with all other remedies herein and at law or in equity. (c) It is expressly agreed,that,no breach of the provisions of this Agreement shall entitle any Party(s)to cancel,rescind or otherwise terminate this Agreement,but such limitation shall not effect,in any manner,any other rights or remedies which any Party(s)may have hereunder by reason of any breach of the provisions of this Agreement. 8. Cooperation.The Parties hereto will,at all times,fully cooperate with each other in connection with the matters contemplated hereby. 9. Notices.All notices and other communications required,permitted or desired to be given with respect to this Agreement shall be in writing and shall be deemed to have been given when delivered in person,mailed by U.S.mail,postage prepaid,or sent by recognized overnight air courier delivery, addressed as follows: Bob Evans: Ms.Teresa A.Ehmann 3776 South High Street Columbus,Ohio 43207 HTC: Mr.Bipin Patel 8350 Brook Road Richmond,VA 23227 Hollymead: Mr.Simon Stapleton 2019 Woodbrook Court Charlottesville,VA 22901 10. Mvelopment Transfer Rights and Agreement. The Parties agree that in the event that HTC does not construct the HTC Improvement and instead such improvements are constructed by Hollymead or Bob Evans,or their successors and/or assigns,that each Party will join in an agreement of similar nature and substance to this Agreement,without objection,which splits the cost of the HTC Improvements on Block Cl as contemplated herein. 11. Miscellaneous. (a) Each Party warrants to other Parties that it owns good and marketable title to its respective Lot free and clear from all liens or encumbrances,except the liens of their current mortgage lenders,the easements and restrictions of record as of the date hereof,and except as otherwise expressly set forth herein. 4 (b) This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof and may be changed only by a written agreement signed by all Parties hereto. (c) This Agreement shall be governed by the laws of the Commonwealth of Virginia. (d) If any term,covenant or condition of this Agreement shall,to any extent,be determined by a court or arbitrator to be invalid or unenforceable,the remainder of this Agreement shall not be affected thereby and each remaining term,covenant or condition of this Agreement shall be valid and enforced to the fullest extent permitted by law. (e) This Agreement may be signed in counterparts which,taken together,shall constitute an original. (f) In the event of litigation or other proceedings arising out of this Agreement,the prevailing Party(ies)shall,in addition to any other remedies available,be entitled to receive prompt reimbursement of its attorney's fees and legal expenses from the non-prevailing Party(ies). (g) Whenever a Party is requested to consent to or approve of any matter with respect to which its consent or approval is required by this Agreement,such consent or approval shall not be unreasonably withheld and,if given,shall be given in writing and shall be given within fifteen(15)days of request therefore,if the party to whom the request is directed does not refuse such consent or approval within such fifteen(15)day period,such consent or approval shall be deemed to have been given. (h) This Agreement may be amended,modified,superseded,cancelled,renewed or extended, and the terms and conditions hereof may be waived,only by a written instrument signed by the Parties, or,in the case of a waiver,by the party waiving compliance. (i) Terms that are defined herein shall be deemed to include all grammatical derivations of such term. (j) All obligations of the owner of Lot B to pay Bob Evans for site development work within Block CI in the Development Agreement,dated February 24,2008,between Bob Evans and Hollymead, recorded in Deed Book 3167,page 685,in the Clerk's Office,Circuit Court,Albemarle County,Virginia are terminated and completely vacated upon completion of the HTC Improvements. (k) This Agreement shall run with the title to the Lots and this Agreement shall be binding on and inure to the benefit of the Parties and their successors and assigns. Counterpart signature pages immediately follow 5 IN WITNESS WHEREOF,the Parties hereto have executed this Agreement,effective as of the day and year first above written. BEF REIT INC. BY: JAJY4a/>t.40c_ Teresa A.Ehmann Assistant Secretary State of Ohio County of Franklin,to-wit: The foregoing agreement was acknowledged before me this 3'd day of December,2008, by Teresa A.Ehmann,Assistant Secre . o BEF REIT,INC.,an Ohio Corporation. ' 41019 Notary P die My commission expires:5/'7 /2oi , Registration No. • • �1(( `� ( TOPIER IDANE Nig Ptlic,elibdOhb ,, b0amNnlon88* hy7,2 t„.t 013 Ar.:. 6 • Sloe NS HTC H ,LLC BY: Amratlal R.Patel Member State of Vttop ts)1dt Cia„,_,x.e7 of 331A&LAA to-wit: The foregoing agreement was acwledged before me this y day of 1- fes.4A., 2008,by Amratlal R.Patel on behalf of Ho 1, , V' a Limited Liability Company. +�' ••� No ary Public Pilot Q a4 My commission expiresi0/a/ 0'3�' �� w�_'�90 Registration No. 36 7 z z 1 18 sof a qqy P1l0" 7 Nftrool 'tea, HOLLYMEAD CORNER,LL fr BY: - ?_+- . Simon Stapleton Member State of viPgrv..- (�....1r of Ole u.,�, to-wit: The foregoing agreement was acknowledged before me this 3 day of 2008,by Si r,•,?„ $k>-/u 1 on be f Hollymead� rner,LLC,a Virginia Limited Liability Company. f/ ��ii"`-'V Notary Public My commission ex ires:I0/31/Z.J.)0 Q!•• p Registration No. Cl52 2-1r tt s t r 1 #O 8 • EXHIBIT"A" (Block Cl Designated Areas) "ARB Review Plan—Overall Layout Plan" 9 b6`1 PS- --10-7 • I \; . IP 11 Hi ;I " = - 9191 III1MN: 111911l • _l. I 1 ,1il'il 11 i ! pi 1 ,a �rlliiil J 1 , O li a 1 b! J., a ti 1ii il.I 1 1 Iii , ,il 3a , 111 i 1 I15 I��i 1 1i I( # III I �� EIii 1 5 I;IJII I I � _� S 111111'II`1III a -MaliI ! ` i - 19 III I I �II ]� _ Y ,1,1,1[1,1 ,,..:„: „ in ]. 1 11_ 1 1 31E11 111!111 II ILII I I II1II31II3 �� ►_ � i � � . I; ,� , ':191 11 1111111 1] 11311 I I 91- - 91ill1931, paI : ! :11.1 1 11 ' II • 1„R.:r.,' ' r i I 1 E I, A 1 11 II 1 •—... ��•R,�, 'A� .dim..,„7., ? r. ? I I ,��;� i. .. 1! 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'� a ,. �^�s LANDSCAPE PLAN ....c i __ *tiaire *NS EXHIBIT"B" PROMISSORY NOTE DATE: CREDIT LINE AMOUNT:U.S.$100,000.00 FOR VALUE RECEIVED,the undersigned(whether one ore more,herein called the"Maker"), unconditionally(and jointly and severally,if more than one),promises to pay to the order of HTC HOTEL,LLC(the"Lender"),without offset,at 8350 Brook Road,Richmond,Virginia,23227,or at such other place as the holder of this Note may hereafter designate,the unpaid principal amount advanced pursuant to a certain"Development Agreement",hereinafter defined, and outstanding hereunder(the "Principal Amount Outstanding")whether advanced at one time or from time to time to me by the Lender,together with interest on the Principal Amount Outstanding from the date of each advance at the rate,and payable on the basis,set forth below. In no event shall the Principal Amount Outstanding ever exceed at any one time the sum of$100,000.00. 1. ADVANCEMENT OF PRINCIPAL: Lender shall advance all monies necessary for HTC Hotels,LLC,to complete the"HTC Improvements" as described in that certain Development Agreement(the"Development Agreement"),dated by and among BEF REIT,INC.,HOLLYMEAD CORNER,LLC,and HTC HOTEL,LLC,on my Lot Block CI,in Hollymead Towncenter,Albemarle County,Virginia which I have agreed to be responsible for the cost of pursuant to the Development Agreement. 2. TIME: The indebtedness evidenced by this Note is due and payable in semi-annual interest only payments on the Principal Amount Outstanding to the Lender on 1 a of June and the 1 a of December of each year until the indebtedness evidenced by this Note is paid in full. The Principal Amount Outstanding plus any unpaid interest accrued thereon shall be due and payable upon the occurrence of anyone of the following events: (i)the commencement of construction on the Maker's Lot_,Block CI,in Hollymead Towncenter,or (ii) the sale or conveyance of Maker's Lot Block Cl,Hollymead Towncenter,or(iii)one year after written notice from the Lender of the completion of certain improvements in Block CI by Lender as further described in a certain Development Agreement(the"Development Agreement"),dated by and among BEF REIT,INC,HOLLYMEAD CORNER,LLC,and HTC HOTEL,LLC. 3. INTEREST: Interest on the Principal Amount Outstanding under this Note shall accrue at the rate of eight percent (8%)per annum. 4. RIGHT OF ANTICIPATION: The Maker reserves the right to anticipate the payment hereof,in whole or in part,at any time or times, without penalty and with interest payable only on the amount of principal so anticipated to the date of such anticipation. S. DEFAULT AND ACCELERATION: The happening of any of the following events shall constitute an event of default:(I)the failure to pay when due any installment or other payment described herein,whether of principal,interest,late charges or 10 otherwise;(2)the failure to perform,observe or comply with any of the terms,warranties,covenants, obligations or conditions contained in the Development Agreement or in any deed of trust,security agreement or any other instrument which may now or hereafter be executed for the purpose of securing this Note or any other obligation of any Party(as hereinafter defined)to the Lender;(3)the termination of,or occurrence of any other event affecting,the validity of this Note or the validity and priority of the deed of trust or other instrument securing this Note,whether as to advances outstanding or future advances hereunder;(4)the death,dissolution,merger,consolidation,or termination of existence of any Maker,or the death of any guarantor or endorser(any Maker and/or guarantor and/or endorsers,herein called"Party"or collectively"the Parties");(5)the inability of any Party to pay debts as they become due, or the insolvency of any Party,or the application for the appointment of a receiver or custodian for any Party or the property of any Party,or the entry of an order for relief or the filing of a petition by or against any Party under the provisions of any bankruptcy or insolvency law,or any assignment for the benefit of creditors by or against any Party;(6)the entry of a judgment in excess of$5,000.00 not covered by insurance against any Party or the issuance or service of any attachment,levy or garnishment against any Party or the property of any Party;(7)the failure of any Party to do all things necessary to preserve and maintain the value and collectability of any property or collateral securing this Note,including,but not limited to,the payment of taxes and premiums on policies of insurance on the due date without benefit of any grace period;(8)the failure of any Party to perform any obligation to the Lender hereunder or under the terms of any other obligation of any Party to the Lender. Upon the happening of any event of default,this Note shall,at the sole option of the Lender,become immediately due and payable without notice to or demand on any Party,subject to the condition that(i)in the event of a monetary default,such default has not been cured within seven(7)days after written notice thereof has been given to the Maker and(ii)in the event of a non-monetary default,such default has not been cured within thirty(30)days after written notice thereof has been given to the Maker. Thereupon, the Lender shall have the right,immediately and without notice to any Party or further action by it,to set- off against this Note,and all other liabilities of any Party owed to the Lender,all obligations for money or money's worth owed by the Lender in any capacity to any Party,whether or not due. The Maker and each Party,however,acknowledge that the foregoing enumerated events of default are merely examples of the types of occurrences that may cause the Lender to make a demand for payment. Upon the happening of any event of default and the exercise by the Lender of its option to declare this Note immediately due and payable,instead of interest accruing of the Principal Amount Outstanding at the above stated interest rate,interest shall accrue on the Principal Amount Outstanding at the interest rate then in effect,as provided above in this Note,plus four percent(4%). 6. COVENANTS AND CONDITIONS: In the event the Maker fails to fully pay any interest payment due hereunder or otherwise fails to repay this Note within ten(10)days after its due date,the Parties agree to pay the Lender on demand a late charge of five percent(5%)of the overdue payment The Parties individually and collectively hereby:waive presentment,demand,protest and notice of dishonor,and agree that this Note may be renewed one or more times and any extension or extensions of the time of payment of this Note may be made before,at,or after maturity for periods in excess of the original term of this Note by agreement with any one or more of the Parties without notice to and without releasing the liability of any other Party;agree that the Lender may adjust the interest rate payable on this Note or any renewal(s)or extension(s)thereof,by agreement with any one or more of the Parties,without notice to and without releasing the liability of any other Party;waive the benefit of all homestead and similar exemptions as to this Note;waive any right which they may have to require the Lender to proceed against any other Party or person or any property securing this Note and agree that their liability 11 hereunder shall not be affected or impaired by the release or discharge of any other Party from liability hereunder,the release or discharge of any collateral securing this Note or by any failure,neglect or omission of the Lender to exercise any remedies of set-off or otherwise that it may have or by any determination that any security interest or lien taken by the Lender to secure this Note is invalid or unperfected;hereby subordinate any and all rights against the Maker and any collateral for the payment of this Note,whether by subrogation,agreement or otherwise until this Note is paid,in full;agree to pay all costs and expenses incurred by the Lender in connection with the enforcement of this Note or any instrument securing this Note,and/or the collection of the indebtedness evidenced hereby or other sums required to be paid herein or by any instrument securing this Note,and/or the collection of any judgment rendered hereon,and/or the preservation or disposition of any property,or the priority of any instrument, securing the payment hereof,and/or the defense of any claim arising out of,or in any way related to,this Note or any deed of trust or security agreement or other instrument securing this Note or related to the making of the loan evidenced hereby,including,without limitation,reasonable attorneys'fees if this Note is placed in the hands of an attorney for collection,or if the Lender finds it desirable to secure the services or advice of an attorney with regard to collection hereof or the preservation or disposition of any property securing this Note;and waive the right to trial by jury in the event of litigation involving(i)the Lender and(ii)the Parties or any one or more of the Parties. Any failure by the Lender to exercise any right hereunder shall not be construed as a waiver of the right to exercise the same or any other rights at any time. "Person"includes individuals,corporations,partnerships,and all other entities. The term"Lender"used herein shall include any future holder of this Note. This Note shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia. If this Note is not dated when executed by the Maker,the Lender is hereby authorized,without notice to the Maker,to date this Note as of the date when any portion of the loan evidenced hereby is first advanced. Whenever possible each provision of this Note shall be interpreted in such manner as to be effective and valid under applicable law,but if any provision of this Note shall be prohibited by or invalid under such law,such provision shall be ineffective to the extent of such prohibition or invalidity,without invalidating the remainder of such provision or the remaining provisions of this Note. This Note shall apply to and bind each Party's heirs,personal representatives,successors and assigns and shall inure to the benefit of the Lender,its successors and assigns. 7. COLLATERAL: This Note is secured by a certain deed of trust,dated of even date herewith,conveying certain real estate known as Lot ,Block Cl,Hollymead Town center,in Albemarle County,Virginia,to Trustees, which deed of trust is intended to be recorded forthwith in the Clerk's Office of the Circuit Court of the County of Albemarle,Virginia. IN WITNESS WHEREOF,this instrument has been executed by the undersigned on behalf of and with the duly authorized authority of the of the Maker. COMPANY NAME a By: Name: Title: 12 'Sow, *40101 EXHIBIT"C" DEED OF TRUST Document prepared by: Kane&Jeffries,P.0 Attorney's at Law Tax Ref No. THIS ISA CREDIT LINE DEED OF TRUST which secures the repayment of indebtedness payable to the order of HTC Hotel,LLC.,who has an address to which any notice permitted to be given pursuant to the provisions of Section 55-58.2 of the Code of Virginia of 1950,as amended,may be mailed or delivered as follows:8350 Brook Road,Richmond,Virginia,23227. THIS CREDIT LINE DEED OF TRUST,dated the day of ,by and between , herein called the"Grantor"(which shall include all parties making this deed if more than one),to be indexed as grantor;and PATRICK D.CAROLLO,a resident of the Commonwealth of Virginia,whose business address is 7110 Forest Avenue,Suite 202,Richmond,Virginia 23226,and WILLIAM L.JEFFRIES,JR.,a resident of the Commonwealth of Virginia,whose business address is 7110 Forest Avenue,Suite 202, Richmond,Virginia 23226,herein called"Trustees",to be indexed as grantees; WITNESSETH: That the Grantor hereby grants and conveys,with general warranty of title,to the Trustees,the following property in Albemarle County,Virginia: See attached SCHEDULE A attached hereto and by this reference made a part hereof. TOGETHER WITH all and singular the buildings and improvements now or hereafter erected thereon,the rights and privileges,tenements,hereditaments, easements and appurtenances unto the said land belonging or anywise appertaining(all of which are declared to be a part of such real estate whether physically attached thereto or not); ALL of the above described property,whether real or personal,being hereinafter called "Property"; IN TRUST to secure the holder thereof the payment of all sums owing hereunder and under a certain Promissory Note(sometimes hereafter call the"Note")of even date herewith in the maximum principal sum of$100,000.00,made by the Grantor and payable to the order of HTC Hotels,LLC,at 8350 Brook Road,Richmond,Virginia,23227,or such other place as the holder may designate in writing,as follows: The entire indebtedness outstanding under the Note shall be due and payable upon the occurrence of anyone of the following events:(i)the commencement of construction on the Maker's Lot Block CI, in Hollymead Towncenter,or(ii) the sale or conveyance of Maker's Lot Block Cl,Hollymead Towncenter,or(iii)one year after written notice from the Lender of the completion of certain 13 improvements in Block Cl by Lender as further described in a certain Development Agreement(the "Development Agreement"),dated ,by and among BEF REIT,INC,HOLLYMEAD CORNER,LLC,and HTC HOTEL,LLC. This deed of trust is also given to secure the reimbursement to the holder of said Note and to Trustees,and any purchaser or purchasers under any sale or sales as provided by this Trust,for any and all costs and expenses incurred in respect thereto,including,but not limited to, reasonable counsel fees incurred or paid on account of any litigation at law or in equity which may arise in respect to this Trust,or to indebtedness on the property heretofore mentioned,or in obtaining possession of the premises after any sale which may be made as hereinafter provided for. This deed is made under the provisions of Sections 55-59,and 55-59.1,55-59.2,55-59.3, 55-59.4 and 55-60 of the Code of Virginia and shall be construed to impose and confer upon the parties hereto and the beneficiary hereunder all of the duties,rights and obligations prescribed in said code sections and in short form provided in Sections 55-59 and/or 55-60,the following provisions: *Subject to call upon default. *Exemptions Waived. *Any Trustee may act. *Advertisement required: Three(3)times in a newspaper of general circulation in the City/County where the property is located. *Renewal or extension permitted. *Insurance Required The Grantor shall pay all costs incident to release of the lien of this Deed of Trust. No failure of the Trustees or the holder of the Note upon any occasion to exercise any option hereunder shall be deemed a waiver of the right to do so upon any other occasion. In the event of a foreclosure sale of the Property by or at the direction of the Trustee,the Trustee shall be entitled to receive from the proceeds of such sale reimbursement of all actual expenses incurred by such Trustee in such sale and a Trustee's commission equal to five percent (5%)of the gross proceeds of such sale. If the real estate is advertised for sale at foreclosure by reason of any act or default on the part of the Grantor but not sold pursuant to such advertisement,the Grantor shall pay to the Trustee(s)the actual expense incurred plus a reasonable commission for the Trustee's or Trustees'services,not to exceed five percent(5%)of the unpaid balance of the Note secured by this deed of trust. In the event of the resignation,death,incapacity,disability,removal or absence from the State of Virginia of any Trustee hereunder,or if for any other reason whatsoever and with or without cause,the holder of the Note deems it advisable that any Trustee hereunder be replaced, the holder of the Note may,by instrument executed and acknowledged and filed for recordation in the Office of the Clerk wherein this deed of trust is recorded,appoint one or more substitute 14 *toil 'time Trustees in the place of such Trustee,and such substitute Trustee or Trustees shall,together with any other Trustee hereunder whose status shall not have been so terminated,thereupon be vested with all the powers,rights and authority and duties vested in the Trustees hereunder. Pending such appointment,the remaining Trustee or Trustees hereunder shall be vested with all the powers,rights and authority and duties vested in the Trustees hereunder. If any lien upon the property hereby conveyed superior to or inferior to or on equal footing with the lien of this deed of trust be in default,then the entire debt hereby secured shall, at the option of the holder of the Note,become immediately due and payable. The holder of the Note is authorized,for the account of Grantor,to make any required payments under any lien prior to or inferior to or on equal footing with the lien of this deed of trust,or under this deed of trust,the nonpayment of which would constitute a default,including but not limited to principal,interest,taxes and fire insurance premiums. All sums so advanced shall accrue interest thereon at the same rate as the Note secured hereby from the date of the advancement to the date of repayment,unless payment of interest at such rate would be contrary to applicable law,in which event such amount shall bear interest at the highest rate permissible by applicable law,shall attach to and become part of the lien created hereunder,shall become payable at any time on demand therefore,and the failure to pay the same on demand shall,at the holder's option,constitute a default hereunder giving rise to all of the remedies herein provided in the event of other defaults. The Grantor further irrevocably assigns to the holder of the Note,as additional security, all leases and any rents,income and profits which may now or hereafter be due upon the Property,it being understood that if,by reason of default under any of the terms hereof,the holder of the Note collects said rents,such holder shall have the right of employing agents for that purpose and paying a percentage of the rents collected for such collection. And,the Grantor hereby appoints the holder of the Note as his/her/its attorney-in-fact to do all things which the Grantor might otherwise do with respect to the Property and leases thereon. So long as there is no default under the Note and this Deed of Trust,the Grantor shall remain in quiet use, possession and management of the Property and the enjoyment of the rents,income and profits therefrom. If Grantor,his heirs,administrators or assigns,shall directly or indirectly,by transfer, sale,or sale of stock or sale or transfer of a membership interest,partnership or beneficiary's interest,permit,do or suffer the assignment,transfer,or sale of the Property or any part thereof or any interest therein,the holder of the Note secured hereby may,at his sole option,declare all sums secured by this Deed of Trust to be immediately due and payable. In addition,the holder of the Note reserves the absolute option and right,among other things,to: (a) require the agreement by Grantor and Grantor's transferee to any terms and conditions that the holder of the Note may,in his sole discretion,deem necessary;(b) increase the rate of interest upon transfer; and(c) charge an assumption fee. NOTICE: THE DEBT SECURED HEREBY IS SUBJECT TO CALL IN FULL OR THE TERMS HEREOF BEING MODIFIED IN THE EVENT OF SALE OR CONVEYANCE OF THE PROPERTY CONVEYED(see paragraph immediately above). I5 1411.04 4r/ IN WITNESS WHEREOF,this instrument has been executed by the undersigned on behalf of and with the duly authorized authority of the of the Company. COMPANY NAME a By: Name: Title: State of City/County of ,to-wit: The foregoing Deed of Trust was acknowledged before me this day of ,by on behalf of Notary Public My commission expires: / / Registration No. RECORDED IN CLERKS OFFICE OF ALBEMARLE COUNTY ON December 06,2009 AT Z34:36 PM $0.00 GRANTOR TAX PO AS REQUIRED BY VA CODE 158.1902 STATE:$0.00 LOCAL: .00 ALBEMARLE COUN VA 40077M.SNIPP RK 16 ac