EXHBIT 10.3
FORM OF DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS
AND SECURITY AGREEMENT
Dated as of November 25, 1996
HPTRI CORPORATION
(Trustor)
TO
CHICAGO TITLE INSURANCE COMPANY
(Trustee)
FOR THE BENEFIT OF
COLUMN FINANCIAL, INC.
(Beneficiary)
LOCATION OF PROPERTY:
Record and Return To:
Cadwalader, Xxxxxxxxxx & Xxxx
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx Xxxxxx, Esq.
INDEX
Page
PART I - GENERAL PROVISIONS
1. Payment of Indebtedness and Incorporation of
Covenants, Conditions and Agreements.......................... 5
2. Warranty of Title............................................. 5
3. Insurance; Casualty........................................... 5
4. Payment of Taxes, Etc......................................... 12
5. Intentionally Omitted......................................... 13
6. Intentionally Omitted......................................... 13
7. Leases and Rents.............................................. 13
8. Maintenance and Use of Trust Property......................... 14
9. Transfer or Encumbrance of Trust Property..................... 16
10. Estoppel Certificates......................................... 16
11. No Cooperative or Condominium................................. 16
12. Changes in the Laws Regarding Taxation........................ 16
13. No Credits on Account of the Indebtedness..................... 17
14. Documentary Stamps............................................ 17
15. Right of Entry................................................ 17
16. Books and Records............................................. 17
17. Performance of Other Agreements............................... 18
18. Representations and Covenants Concerning Loan................. 18
19. Intentionally Omitted......................................... 19
20. Events of Default; Remedies................................... 19
21. Additional Remedies........................................... 22
22. Right to Cure Defaults........................................ 24
23. Late Payment Charge........................................... 25
24. Prepayment After Event of Default............................. 26
25. Prepayment.................................................... 26
26. Appointment of Receiver....................................... 26
27. Security Agreement............................................ 26
28. Authority..................................................... 28
29. Actions and Proceedings....................................... 28
30. Waiver of Jury Trial and Counterclaims........................ 28
31. Further Acts, Etc............................................. 28
32. Recording of Deed of Trust, Etc............................... 29
33. Usury laws.................................................... 29
34. Sole Discretion of Beneficiary................................ 30
35. Recovery of Sums Required To Be Paid.......................... 30
36. Marshalling and Other Matters................................. 30
37. Waiver of Notice.............................................. 30
38. Remedies of Trustor........................................... 30
39. Intentionally Omitted......................................... 30
40. Intentionally Omitted......................................... 31
41. Intentionally Omitted......................................... 31
42. Bankruptcy or Insolvency...................................... 31
43. Intentionally Omitted......................................... 31
44. Assignments................................................... 31
45. Cooperation................................................... 31
46. Exculpation................................................... 32
47. Notices....................................................... 33
48. Non-Waiver.................................................... 34
49. Joint and Several Liability................................... 34
50. Severability.................................................. 34
51. Duplicate Originals........................................... 34
52. Indemnity and Beneficiary's Costs............................. 35
53. Certain Definitions........................................... 35
54. No Oral Change................................................ 35
55. Headings, Etc................................................. 35
56. Address of Real Property...................................... 36
57. Wire Transfer................................................. 36
58. Publicity..................................................... 36
59. Relationship.................................................. 36
60. Homestead..................................................... 36
61. No Third Party Agreements..................................... 36
62. Entire Agreement.............................................. 36
63. Servicer...................................................... 36
64. Governing Laws; Consent to Jurisdiction....................... 36
65. Certain Hotel Covenants....................................... 37
66. Title Acts by Trustee......................................... 38
67. Successor Trustee............................................. 38
68. Authorization Regarding Trustee............................... 38
PART II - STATE SPECIFIC PROVISIONS
SCHEDULE A - Legal Description of Land
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THIS DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS AND
SECURITY AGREEMENT (this "Deed of Trust"), made as of the ____ day of
__________, 1996, by HPTRI CORPORATION, Delaware corporation having offices at
c/o Hospitality Properties Trust, 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 021 8
("Trustor"), to CHICAGO TITLE INSURANCE COMPANY ("Trustee") for the benefit of
COLUMN FINANCIAL, INC., a Delaware corporation having offices at 0000 Xxxxxxxxx
Xxxx, X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000-0000 ("Beneficiary").
W I T N E S S E T H:
To secure the payment of an indebtedness in the principal sum
of ONE HUNDRED AND TWENTY FIVE MILLION DOLLARS ($125,000,000), lawful money of
the United States of America, to be paid with interest and all other sums and
fees payable according to a certain Promissory Note dated the date hereof made
by Trustor and HPTWN Corporation, a Delaware corporation ("HPTWN") to
Beneficiary (the promissory note together with all extensions, renewals or
modifications thereof being hereinafter collectively called the "Note", and the
loan evidenced by the Note being hereinafter referred to as the "Loan") and all
indebtedness, obligations, liabilities and expenses due hereunder and under any
other Loan Document (as hereinafter defined) (the indebtedness, interest, other
sums, fees, obligations and all other sums due under the Note and/or hereunder
and/or any other Loan Document being collectively called the "Indebtedness"),
Trustor hereby irrevocably grants, bargains, sells and conveys to Trustee IN
TRUST, WITH POWER OF SALE, and grants unto Trustee a security interest in, all
of Trustor's right, title and interest, if any, in the following property and
rights, whether now owned or held or hereafter acquired (collectively, the
"Trust Property"):
GRANTING CLAUSE ONE
All right, title and interest in and to the real property or
properties described on Schedule A hereto (collectively, the "Land").
GRANTING CLAUSE TWO
Any and all buildings, structures, fixtures, additions,
enlargements, extensions, modifications, repairs, replacements and improvements
now or hereafter located on the Land or any part thereof (collectively, the
"Improvements"; the Land and the Improvements hereinafter collectively referred
to as the "Real Property").
GRANTING CLAUSE THREE
All easements, rights-of-way, strips and gores of land,
streets, ways, alleys, passages, sewer rights, water, water courses, water
rights and powers, oil, gas and mineral rights, air rights and development
rights, zoning rights and all estates, rights, titles, interests, privileges,
liberties,
tenements, hereditaments and appurtenances of any nature whatsoever in any way
belonging, relating or pertaining to the Real Property or any part thereof, and
the reversion and reversions, remainder and remainders, and all land lying in
the bed of any street, road or avenue, opened or proposed, in front of or
adjoining the Land or any part thereof to the center line thereof and all the
estates, rights, titles, interests, dower and rights of dower, curtesy and
rights of curtesy, property, possession, claim and demand whatsoever, both in
law and in equity, of Trustor of, in and to the Real Property and every part and
parcel thereof, with the appurtenances thereto.
GRANTING CLAUSE FOUR
All machinery, equipment, fixtures and other property of every
kind and nature whatsoever owned by Trustor, or in which Trustor has or shall
have an interest (to the extent of such interest), now or hereafter located upon
the Real Property, or appurtenant thereto, and usable in connection with the
present or future operation and occupancy of the Real Property and all building
equipment, materials and supplies of any nature whatsoever owned by Trustor or
in which Trustor has or shall have an interest (to the extent of such interest),
now or hereafter located upon the Real Property, or appurtenant thereto, or
usable in connection with the present or future operation and occupancy of the
Real Property, including but not limited to all beds, bureaus, chiffoniers,
chests, chairs, desks, lamps, mirrors, bookcases, tables, rugs, carpeting,
drapes, draperies, curtains, shades, venetian blinds, screens, paintings,
hangings, pictures, divans, couches, luggage carts, luggage racks, stools,
sofas, chinaware, linens, pillows, blankets, glassware, foodcarts, cookware, dry
cleaning facilities, dining room wagons, keys or other entry systems, bars, bar
fixtures, liquor and other drink dispensers, icemakers, radios, television sets,
intercom and paging equipment, electric and electronic equipment, dictating
equipment, private telephone systems, medical equipment, potted plants, heating,
lighting and plumbing fixtures, fire prevention and extinguishing apparatus,
cooling and air-conditioning systems, elevators, escalators, fittings, plants,
apparatus, stoves, ranges, refrigerators, laundry machines, tools, machinery,
engines, dynamos, motors, boilers, incinerators, switchboards, conduits,
compressors, vacuum cleaning systems, floor cleaning, waxing and polishing
equipment, call systems, brackets, electrical signs, bulbs, bells, ash and fuel,
conveyors, cabinets, lockers, shelving, spotlighting equipment, dishwashers,
garbage disposals, washers, dryers and other customary hotel equipment owned by
Trustor or in which Trustor shall have an interest pursuant to the Lease
Agreement (hereinafter defined) (hereinafter collectively called the
"Equipment"), and the right, title and interest of Trustor, if any, in and to
any of the Equipment which may be subject to any security agreements (as defined
in the Uniform Commercial Code of the State in which the Trust Property is
located (the "Uniform Commercial Code")) superior, inferior or pari passu in
lien to the lien of this Deed of Trust.
GRANTING CLAUSE FIVE
All awards or payments, including interest thereon, which may
heretofore and hereafter be made with respect to the Real Property, or any part
thereof, whether from the exercise of the right of eminent domain (including but
not limited to any transfer made in lieu of or in
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anticipation of the exercise of said right), or for a change of grade, or for
any other injury to or decrease in the value of the Real Property.
GRANTING CLAUSE SIX
All leases and subleases (including, without limitation, that
certain Lease Agreement dated _______________, 1996, as amended, together with
any Substitute Lease Agreement entered into by Trustor pursuant to, and as that
term is defined in, the Loan Agreement, the "Lease Agreement") by and between
Trustor, as landlord, and HMH HPT Residence Inn, Inc., as tenant (together with
any tenant under any Substitute Lease Agreement entered into by Trustor pursuant
to the Loan Agreement, the "Tenant") and including, without limitation, all
guarantees of said leases and subleases) and other agreements affecting the use,
enjoyment and/or occupancy of the Real Property, or any part thereof, now or
hereafter entered into (including any use or occupancy arrangements created
pursuant to Section 365(h) of Title 11 of the United States Code (the
"Bankruptcy Code") or otherwise in connection with the commencement or
continuance of any bankruptcy, reorganization, arrangement, insolvency,
dissolution, receivership or similar proceedings, or any assignment for the
benefit of creditors, in respect of any tenant or occupant of any portion of the
Real Property) (the "Leases") and all cash or securities deposited to secure
performance by the Tenant and any other tenants, lessees, licensees or guests,
as applicable, of their obligations under any leases, licenses, concessions or
occupancy agreements, whether said cash or securities are to be held until the
expiration of the terms of said leases, licenses, concessions or occupancy
agreements or applied to one or more of the installments of rent coming due
prior to the expiration of said terms, and together with income, rents, issues,
profits, revenues and proceeds, including all oil and gas or other mineral
royalties and bonuses from the Real Property, including, without limitation, all
revenues and credit card receipts collected from guest rooms, restaurants, bars,
meeting rooms, banquet rooms and recreational facilities, all receivables,
customer obligations, installment payment obligations and other obligations now
existing or hereafter arising or created out of the sale, lease, sublease,
license, concession or other grant of the right of the use and occupancy of
property or rendering of services by Trustor or any operator or manager of the
hotel or the commercial space located in the Improvements or acquired from
others (including, without limitation, from the rental of any office space,
retail space, guest rooms or other space, halls, stores, and offices, and
deposits securing reservations of such space), license, lease, sublease and
concession fees and rentals, health club membership fees, food and beverage
wholesale and retail sales, service charges, vending machine sales and proceeds,
if any, from business interruption or other loss of income insurance (including
any payments received pursuant to Section 502(b) of the Bankruptcy Code or
otherwise in connection with the commencement or continuance of any bankruptcy,
reorganization, arrangement, insolvency, dissolution, receivership or similar
proceedings, or any assignment for the benefit of creditors, in respect of any
tenant or occupant of any portion of the Real Property and all claims as a
creditor in connection with any of the foregoing) (the "Rents") and all proceeds
from the sale, cancellation, surrender or other disposition of the Leases and
the right to receive and apply the Rents to the payment of the Indebtedness
including, but not limited to in accordance with the terms and provisions of (i)
that certain Lockbox Pledge and Security Agreement dated the date hereof (the
"Lockbox Security Agreement") by and among Trustor, HPTWN and Beneficiary, and
(ii) that certain Loan Agreement dated the date hereof (the "Loan Agreement") by
and among Trustor, HPTWN and Beneficiary.
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GRANTING CLAUSE SEVEN
All proceeds of and any unearned premiums on any insurance
policies covering the Real Property, or any part thereof, including without
limitation, the right to receive and apply the proceeds of any insurance,
judgments, or settlements made in lieu thereof, for damage to the Real Property,
or any part thereof.
GRANTING CLAUSE EIGHT
All tax refunds, including interest thereon, and tax
abatements, and the right to receive the same, which may be payable or available
with respect to the Real Property.
GRANTING CLAUSE NINE
The right, in the name and on behalf of Trustor, to appear in
and defend any action or proceeding brought with respect to the Real Property or
any part thereof and to commence any action or proceeding to protect the
interest of Beneficiary in the Real Property or any part thereof.
GRANTING CLAUSE TEN
All accounts receivable, utility or other deposits, contract
rights, interests, estate or other claims, both in law and in equity, which
Trustor or any one Trustor now has or may hereafter acquire in the Real Property
or any part thereof.
GRANTING CLAUSE ELEVEN
All rights which Trustor now has or may hereafter acquire, to
be indemnified and/or held harmless from any liability, loss, damage, cost or
expense (including, without limitation, attorneys' fees and disbursements)
relating to the Real Property or any part thereof.
GRANTING CLAUSE TWELVE
All plans and specifications, maps, surveys, studies, reports,
contracts, subcontracts, service contracts, management contracts (including,
without limitation, that certain Management Agreement dated ___________, 19___,
as amended, (together with any Substitute Management Agreement entered into by
Trustor pursuant to, and as that term is defined in, the Loan Agreement, the
"Management Agreement") between Trustor (as successor in interest to HMH
Properties, Inc.) and Residence Inn by Marriott, Inc. (together with any
Qualified Manager [as that term is defined in the Loan Agreement] under any
Substitute Management Agreement entered into by Trustor pursuant to the terms of
the Loan Agreement, the "Manager")), franchise agreements and other agreements,
franchises, trade
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names, trademarks, symbols, service marks, approvals, consents, permits, special
permits, licenses and rights, whether governmental or otherwise, respecting the
use, occupation, development, construction and/or operation of the Real Property
or any part thereof or the activities conducted thereon or therein, or otherwise
pertaining to the Real Property or any part thereof.
WITH RESPECT TO any portion of the Trust Property which is not
real property under the laws of the State in which the Real Property is located,
Trustor hereby grants, bargains, sells and conveys the same to Beneficiary for
the purposes set forth hereunder and the references above to Trustee shall be
deemed to be to Beneficiary with respect to such portion of the Trust Property
and Beneficiary shall be vested with all rights, powers and authority granted
hereunder or by law to Trustee with respect thereto.
TO HAVE AND TO HOLD the above granted and described Trust
Property unto and to the use and benefit of Beneficiary, and the successors and
assigns of Beneficiary, forever.
PROVIDED, HOWEVER, these presents are upon the express
condition, if Trustor shall well and truly pay to Beneficiary the Indebtedness
at the time and in the manner provided in the Note and this Deed of Trust and
shall well and truly abide by and comply with each and every covenant and
condition set forth herein, in the Note and the other Loan Documents, these
presents and the estate hereby granted shall cease, terminate and be void.
PART I - GENERAL PROVISIONS
AND Trustor represents to, covenants with and warrants to
Beneficiary that:
1. Payment of Indebtedness and Incorporation of Covenants,
Conditions and Agreements. Trustor shall pay the Indebtedness at the time and in
the manner provided in the Note, this Deed of Trust and the other Loan
Documents. All the covenants, conditions and agreements contained in the Note
and the other Loan Documents are hereby made a part of this Deed of Trust to the
same extent and with the same force as if fully set forth herein.
2. Warranty of Title. Trustor has good and marketable title to
the Real Property; Trustor has the right to mortgage, give, grant, bargain,
sell, alien, enfeoff, convey, confirm, pledge, lease, assign and hypothecate,
and grant a security interest in, the Real Property; Trustor possesses an
indefeasible fee estate in the Real Property; and Trustor owns the Real Property
free and clear of all liens, encumbrances and charges whatsoever except those
exceptions shown in the title insurance policy insuring the lien of this Deed of
Trust (this Deed of Trust and the liens, encumbrances and charges shown as
exceptions in such title policy, hereinafter collectively referred to as the
"Permitted Encumbrances"). Trustor shall forever warrant, defend and preserve
such title and the validity and priority of the lien of this Deed of Trust and
shall forever warrant and defend the same to Beneficiary and Trustee against the
claims of all persons whomsoever.
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3. Insurance; Casualty and Condemnation.
(a) Except during such time as the Lease Agreement and/or the
Management Agreement is in full force and effect and the Tenant or the Manager
is maintaining insurance in accordance with the terms of the Lease Agreement or
the Management Agreement, as the case may be, Trustor, at Trustor's expense,
shall maintain, or cause to be maintained, in force and effect on the Trust
Property at all times while this Deed of Trust continues in effect the following
insurance:
(i) "All-risk" coverage insurance against loss or damage to
the Trust Property from all- risk perils. The amount of such insurance shall be
not less than one hundred percent (100%) of the full replacement cost of the
Improvements, furniture, furnishings, fixtures, Equipment and other items
(whether personalty or fixtures) included in the Trust Property and owned by
Trustor from time to time, without reduction for depreciation. The determination
of the replacement cost amount shall be adjusted annually to comply with the
requirements of the insurer issuing such coverage or, at Beneficiary's election,
by reference to such indexes, appraisals or information as Beneficiary
reasonably determines. Full replacement cost, as used herein, means, with
respect to the Improvements, the cost of replacing the Improvements without
regard to deduction for depreciation, exclusive of the cost of excavations,
foundations and footings below the lowest basement floor, and means, with
respect to such furniture, furnishings, fixtures, Equipment and other items, the
cost of replacing the same. Each policy or policies shall contain a replacement
cost endorsement and either an agreed amount endorsement (to avoid the operation
of any co-insurance provisions) or a waiver of any co-insurance provisions, all
subject to Beneficiary's approval.
(ii) Commercial general liability insurance for personal
injury, bodily injury, death and Trust Property damage liability in a combined
single limit amount of not less than $10,000,000.00 (inclusive of umbrella
coverage) or such lesser amount as Beneficiary, in Beneficiary's sole
discretion, may accept, for bodily injury, personal injury and Trust Property
damage. This policy must contain, but not be limited to, coverage for premises
and operations liability, products and completed operations liability,
contractual liability, hired and non-owned automobile liability, personal injury
liability and Trust Property damage liability. During any construction on the
Real Property, Trustor's general contractor for such construction shall also
provide the insurance required in this subparagraph (ii). Beneficiary hereby
retains the right to periodically review the amount of said liability insurance
being maintained by Trustor and to require an increase in the amount of said
liability insurance should Beneficiary deem an increase to be reasonably prudent
under then existing circumstances.
(iii) Insurance covering the major components of the central
heating, air conditioning and ventilating systems, boilers, other pressure
vessels, high pressure piping and machinery, elevators and escalators, if any,
and other similar equipment installed in the Improvements, in an amount equal to
one hundred percent (100%) of the full replacement cost of the Improvements
which policies shall insure against physical damage to and loss of occupancy and
use of the Improvements arising out of an accident or breakdown covered
thereunder.
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(iv) If the Real Property or any part thereof is identified by
the Secretary of Housing and Urban Development as being situated in an area now
or subsequently designated as having special flood hazards (including, without
limitation, those areas designated as Zone A or Zone V), flood insurance, if
available, in an amount equal to one hundred percent (100%) of the replacement
cost of the Improvements or the maximum amount of flood insurance available,
whichever is the lesser.
(v) During the period of any construction on the Real Property
or renovation or alteration of the Improvements, a so-called "Builder's All-Risk
Completed Value" or "Course of Construction" insurance policy in non-reporting
form for any Improvements under construction, renovation or alteration in an
amount approved by Beneficiary and Worker's Compensation Insurance covering all
persons engaged in such construction, renovation or alteration.
(vi) Business interruption insurance in amounts sufficient to
compensate Trustor for losses incurred due to cessation of the operation of the
Trust Property as a hotel during a period of not less than one year in which the
Trust Property may be damaged or destroyed.
(vii) Such other insurance (including, without limitation,
innkeeper's legal liability and liquor liability) on the Trust Property or on
any replacements or substitutions thereof or additions thereto as may from time
to time be reasonably required by Beneficiary against other insurable hazards or
casualties which at the time are commonly insured against in the case of Trust
Property similarly situated, due regard being given to the height and type of
buildings, their construction, location, use and occupancy.
(viii) Insurance proceeds and any additional funds deposited
by Trustor with Beneficiary shall constitute additional security for the
Indebtedness. Trustor shall execute, deliver, file and/or record, at its
expense, such documents and instruments as Beneficiary deems necessary or
advisable to grant to Beneficiary a perfected, first priority security interest
in the insurance proceeds and such additional funds.
All such insurance policies required pursuant to this Paragraph 3 shall
(i) be with insurers authorized to do business in the state within which the
Real Property is located and who have and maintain a claims-paying ability
rating of at least A, as determined by Standard & Poor's Ratings Services, (ii)
contain the complete address of the Real Property (or a complete legal
description), (iii) be for a term of at least one year, (iv) contain deductibles
no greater than $_________ or as otherwise required by Beneficiary, and (v) be
subject to the approval of Beneficiary as to insurance companies, amounts,
content, forms of policies, method by which premiums are paid and expiration
dates.
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The insurance policies provided by the Tenant pursuant to the terms of
the Lease Agreement and/or by Manager pursuant to the terms of the Management
Agreement and the insurance policies required pursuant to this Paragraph 3 shall
be collectively referred to herein as the "Policies".
Trustor shall as of the date hereof deliver to Beneficiary
evidence that said Policies have been paid current as of the date hereof and
copies of certificates of insurance evidencing such Policies. All such insurance
shall be renewed and certificates delivered to Beneficiary evidencing such
renewals before any such insurance shall expire. Subject to the terms of the
Lease Agreement and the Management Agreement, without limiting the required
endorsements to the Policies, Trustor further agrees that all such Policies
insuring the Trust Property shall provide that proceeds thereunder shall be
payable to Beneficiary, its successors and assigns, pursuant and subject to a
mortgagee endorsement (without contribution) of standard form attached to, or
otherwise made a part of, the applicable Policy and that Beneficiary, its
successors and assigns, shall be named as an additional insured under all
liability Policies. Subject to the terms of the Lease Agreement and the
Management Agreement, Trustor further agrees that all such Policies: (i) shall
provide for at least thirty (30) days' prior written notice to Beneficiary prior
to any cancellation or termination thereof and prior to any material
modification thereof which affects the interest of Beneficiary; (ii) shall
contain an endorsement or agreement by the insurer that any loss shall be
payable to Beneficiary in accordance with the terms of such policy
notwithstanding any act or negligence of Trustor which might otherwise result in
forfeiture of such insurance; and (iii) shall waive all rights of subrogation
against Beneficiary. The delivery to Beneficiary of the Policies or the
certificates of insurance as provided above shall constitute an assignment of
all proceeds payable under such insurance policies by Trustor to Beneficiary as
further security for the indebtedness secured hereby, subject to the rights of
Tenant and/or Manager with respect to same, as provided for in the Lease
Agreement or the Management Agreement, as the case may be. In the event of
foreclosure of this Deed of Trust, or other transfer of title to the Trust
Property in extinguishment in whole or in part of the secured indebtedness, all
right, title and interest of Trustor in and to all proceeds payable under such
Policies then in force concerning the Trust Property shall thereupon vest in the
purchaser at such foreclosure, or in Beneficiary or other transferee in the
event of such other transfer of title, subject to the rights of Tenant and/or
Manager with respect to same, as provided for in the Lease Agreement or the
Management Agreement, as the case may be. Approval of any insurance by
Beneficiary shall not be a representation of the solvency of any insurer or the
sufficiency of any amount of insurance. In the event Tenant, Manager or Trustor,
as the case may be, fails to provide, maintain, keep in force or deliver and
furnish to Beneficiary the policies of insurance required by the Lease
Agreement, the Management Agreement or, if applicable, this Deed of Trust or
evidence of their renewal as required herein, Beneficiary may, but shall not be
obligated to, procure such insurance and Trustor shall pay all amounts advanced
by Beneficiary, together with interest thereon at the Default Rate (as such term
is defined in the Note) from and after the date advanced by Beneficiary until
actually repaid by Trustor, promptly upon demand by Beneficiary. Any amounts so
advanced by Beneficiary, together with interest thereon, shall be secured by
this Deed of Trust and by all of the other Loan Documents securing all or any
part of the indebtedness evidenced by the Note. Beneficiary shall not be
responsible
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for nor incur any liability for the insolvency of the insurer or other failure
of the insurer to perform, even though Beneficiary has caused the insurance to
be placed with the insurer after failure of Trustor to furnish such insurance.
(b) Trustor shall give Beneficiary prompt written notice of the
occurrence of any casualty affecting, or the institution of any proceedings for
eminent domain or for the condemnation of, the Trust Property or any portion
thereof. All insurance proceeds on the Trust Property, and all causes of action,
claims, compensation, awards and recoveries for any damage, condemnation or
taking of all or any part of the Trust Property or for any damage or injury to
it for any loss or diminution in value of the Trust Property, are, subject to
the rights of Tenant and/or Manager with respect to same, as provided for in the
Lease Agreement or the Management Agreement, as the case may be, hereby assigned
to and shall be paid to Beneficiary. Subject to the rights of Tenant under the
Lease Agreement and/or Manager under the Management Agreement, Beneficiary may
participate in any suits or proceedings relating to any such proceeds, causes of
action, claims, compensation, awards or recoveries and Beneficiary is hereby
authorized, in its own name or in Trustor's name, to adjust any loss covered by
insurance or any condemnation claim or cause of action, and to settle or
compromise any claim or cause of action in connection therewith, and Trustor
shall from time to time deliver to Beneficiary any instruments required to
permit such participation; provided, however, that Beneficiary shall not have
the right to participate in the adjustment of any loss which is not in excess
$250,000.00. The Trustor shall not consent to any loss adjustments with respect
to casualty loss or condemnation proceeds in excess of $250,000.00 without the
prior written consent of Beneficiary.
(c) During such time as the Lease Agreement and/or the Management
Agreement is in full force and effect and the Tenant is maintaining insurance in
accordance with the terms of the Lease Agreement or the Manager is maintaining
insurance in accordance with the terms of the Management Agreement, the terms of
the Lease Agreement and/or the Management Agreement with respect to the
disbursement and application of casualty loss and condemnation proceeds shall
govern and control; provided, however, Trustor agrees that, unless it is
required pursuant to the terms of the Lease Agreement to utilize its own funds
to repair or restore any casualty or condemnation loss, Trustor will not do so
without Beneficiary's prior written consent (which consent shall not be
unreasonably withheld, delayed or conditioned) to the extent that the total
costs incurred by Trustor in repairing or restoring such casualty or
condemnation loss would, when aggregated with all other costs which have been or
will be incurred by Trustor or HPTWN, as the case may be, in contemporaneously
repairing or restoring any other casualty or condemnation loss on any other
property encumbered by any Other Mortgage (hereinafter defined), exceed
$12,500,000.00.
(d) Notwithstanding the provisions of Paragraph 3(c) above, to the
extent that any casualty loss or condemnation proceeds are to be delivered or
paid to Trustor, pursuant to the terms of the Lease Agreement or the Management
Agreement, such proceeds shall instead be delivered or paid to Beneficiary, and
Trustor hereby covenants to cause such casualty loss or condemnation proceeds to
be delivered or paid to Beneficiary or, if delivered or paid to Trustor, Tenant
or Manager, to deliver same, or cause same to be delivered, to Beneficiary
within one (1)
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Business Day (as that term is defined in the Loan Agreement) of Trustor's
receipt of such proceeds or five (5) Business Days after the date on which
Trustor shall have received notice that either Tenant or Manager has received
such proceeds. Any casualty loss or condemnation proceeds received by
Beneficiary shall be disbursed by Beneficiary pursuant to the terms of the Lease
Agreement and/or the Management Agreement, as if Beneficiary were the landlord
under the Lease Agreement or the owner under the Management Agreement, as the
case may be; provided, however, any proceeds not required, pursuant to the terms
of the Lease Agreement and/or the Management Agreement, to be delivered to the
Tenant or the Manager shall be retained by Beneficiary and applied by
Beneficiary for payment against the outstanding principal portion of the
Indebtedness and, upon such payment, the Loan Allocation Amount (as that term is
defined in the Loan Agreement) for the Trust Property shall be reduced by an
amount equal to the amount of such proceeds applied by Beneficiary against the
outstanding principal portion of the Indebtedness.
(e) In the event that at any time the Lease Agreement or the Management
Agreement are not in full force and effect, any and all casualty loss or
condemnation proceeds shall be applied by Beneficiary first to the payment of
all of its reasonable costs and expenses (including, but not limited to, legal
fees and disbursements) if any, incurred in obtaining those sums, and then, as
follows:
(i) In the event that less than fifty percent (50%) of the
Improvements located on the Land have been taken or destroyed, if:
(A) no default beyond the expiration of any
applicable notice or cure period is then continuing hereunder or under any of
the other Loan Documents and no event has occurred which, with the giving of
notice or the passage of time or both, would constitute a default hereunder or
under any of the other Loan Documents, and
(B) the Trust Property can, in Beneficiary's
reasonable judgment, with diligent restoration or repair, be returned to a
condition at least equal to the condition thereof that existed prior to the
casualty or partial taking causing the loss or damage within one (1) year of the
date of such casualty or partial taking and at least six (6) months prior to the
stated maturity date of the Note, and
(C) all necessary governmental approvals can be
obtained to allow the rebuilding and reoccupancy of the Trust Property as
described in Paragraph 3(e)(i)(B) above, and
(D) there are sufficient sums available (through
insurance proceeds or condemnation awards and contributions by Trustor, and
Trustor shall have deposited with Beneficiary the full amount thereof or shall
have provided Beneficiary with evidence reasonably satisfactory to Beneficiary
that such sums will be available to Trustor for such restoration or repair as
and when needed) for such restoration or repair (including, without limitation,
for any reasonable costs and expenses of Beneficiary to be incurred in
administering said restoration or repair) and for payment of principal and
interest to become due and payable under the Note during such restoration or
repair, and
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(E) the economic feasibility of the Improvements
after such restoration or repair will be such that income from their operation
is reasonably anticipated to be sufficient to pay operating expenses of the
Trust Property and, when combined with all other income from the operation of
the other properties encumbered by Other Mortgages, to pay debt service on the
Indebtedness with the same debt service coverage ratio that was in effect
immediately prior to such casualty or partial taking, and
(F) Trustor shall have delivered to Beneficiary, at
Trustor's sole cost and expense, an appraisal report in form and substance
reasonably satisfactory to Beneficiary appraising the value of the Trust
Property as so restored or repaired to be not less than the appraised value of
the Trust Property considered in making the Loan secured hereby, and
(G) Trustor so elects by written notice delivered to
Beneficiary within five (5) days after settlement of the aforesaid insurance or
condemnation claim,
Beneficiary shall, solely for the purposes of such restoration or repair,
advance so much of the remainder of such sums as may be required for such
restoration or repair, and any funds deposited by Trustor therefor, to Trustor
in the manner and upon such terms and conditions as would be required by a
prudent interim construction lender, including, but not limited to, the prior
approval by Beneficiary of plans and specifications, contractors and form of
construction contracts, requirements for retainage and the furnishing to
Beneficiary of permits, bonds, lien waivers, title insurance endorsements,
invoices, receipts and affidavits from contractors and subcontractors in form
and substance reasonably satisfactory to Beneficiary in its reasonable
discretion, with any remainder being applied by Beneficiary for payment against
the outstanding principal portion of the Indebtedness and, upon such payment,
the Loan Allocation Amount for the Trust Property shall be reduced by an amount
equal to the amount of such proceeds applied by Beneficiary against the
outstanding principal portion of the Indebtedness.
(ii) In all other cases, namely, in the event that fifty
percent (50%) or more of the Improvements located on the Real Property have been
taken or destroyed or Trustor does not elect to restore or repair the Trust
Property pursuant to clause (i) above, or otherwise fails to meet the
requirements of clause (i) above, then, in any of such events, Beneficiary shall
be entitled to retain any casualty loss or condemnation proceeds and, subject to
the terms of Section 2.2.2 of the Loan Agreement, apply same against the
outstanding principal portion of the Indebtedness. Any reduction in the
Indebtedness resulting from Beneficiary's application of any sums received by it
hereunder shall take effect only when Beneficiary actually receives such sums
and applies such sums to the Indebtedness and, in any event, the unpaid portion
of the Indebtedness shall remain in full force and effect and Trustor shall not
be excused in the payment thereof, except that, pursuant to Section 2.2.2 of the
Loan Agreement, Trustor shall, in the circumstances described in, and pursuant
to and in accordance with the terms of, said Section 2.2.2, be entitled to have
the Trust Property released from the lien of this Deed of Trust.
(iii) If Trustor elects to restore or repair the Trust
Property after the occurrence of a casualty or partial taking of the Trust
Property as provided for in Paragraph 3(e) i) above, Trustor shall promptly and
diligently, to the extent of the insurance proceeds or
11
condemnation award, as appropriate, plus any additional amounts made available
by Trustor pursuant to Paragraph 3(e)(i)(D) above, restore, repair, replace and
rebuild the Trust Property as nearly as possible to its value, condition and
character immediately prior to such casualty or partial taking in accordance
with the foregoing provisions and Trustor shall pay to Beneficiary all
reasonable costs and expenses of Beneficiary incurred in administering said
rebuilding, restoration or repair, provided that Beneficiary makes such proceeds
or award available for such purpose. Trustor agrees to execute and deliver from
time to time such further instruments as may be requested by Beneficiary to
confirm the foregoing assignment to Beneficiary of any award, damage, insurance
proceeds, payment or other compensation. Beneficiary is hereby irrevocably
constituted and appointed the attorney-in-fact of Trustor (which power of
attorney shall be irrevocable so long as any indebtedness secured hereby is
outstanding, shall be deemed coupled with an interest, shall survive the
voluntary or involuntary dissolution of Trustor and shall not be affected by any
disability or incapacity suffered by Trustor subsequent to the date hereof),
with full power of substitution, subject to the terms of this Paragraph 3(e), to
settle for, collect and receive any such awards, damages, insurance proceeds,
payments or other compensation from the parties or authorities making the same,
to appear in and prosecute any proceedings therefor and to give receipts and
acquittance therefor.
4. Payment of Taxes, Etc.
(a) Pursuant to the Lease Agreement, Tenant is
obligated to pay all taxes, assessments, water rates and sewer rates, now of
hereafter levied or assessed or imposed against the Trust Property or any part
thereof (the "Taxes") and all ground rents, maintenance charges, other
governmental impositions, and other charges, including, without limitation,
vault charges and license fees for the use of vaults, chutes and similar areas
adjoining the Trust Property, as same become due and payable. In the event that
Tenant fails to pay said Taxes pursuant to the terms of the Lease Agreement and
such failure continues beyond the expiration of any applicable notice and cure
period provided for in the Lease Agreement, Trustor shall pay same, as same
become due and payable. Trustor will deliver to Beneficiary, promptly upon
Beneficiary's request, evidence reasonably satisfactory to Beneficiary that the
Taxes and said charges, fees and impositions have been so paid and are not then
delinquent. Trustor shall not suffer or permit any lien or charge (including,
without limitation, any mechanic's lien) against all or any part of the Trust
Property and Trustor shall promptly cause to be paid and discharged, or cause
Tenant or Manager, as the case may be, to pay and discharge in accordance with
the terms of the Lease Agreement or the Management Agreement, as applicable, any
lien or charge whatsoever which may be or become a lien or charge against the
Trust Property. Trustor shall promptly pay, or cause Tenant and/or Manager to
pay, for all utility services provided to the Trust Property. In addition,
Beneficiary may, at its option, retain the services of a firm to monitor the
payment of Taxes, the reasonable cost of which shall be borne by Trustor.
(b) Pursuant to the terms of the Lease Agreement
and/or the Management Agreement, Tenant or Manager, as the case may be, has
certain rights to contest the amount or validity of any such Taxes, liens or
charges referred to in subsection (a) above. In addition, in the event that the
Lease Agreement and/or the Management Agreement is no
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longer in full force and effect, Trustor shall have the right, notwithstanding
the provisions of subsection (a) above, to contest in good faith the amount or
validity of any such Taxes, liens or charges (including, without limitation, tax
liens and mechanics' liens) referred to in subsection (a) above by appropriate
legal proceedings and in accordance with all applicable law, after notice to,
but without cost or expense to, Beneficiary, provided that (i) Trustor is not in
default under the Note, this Deed of Trust or any other Loan Document beyond the
expiration of any applicable notice or cure period, (ii) Trustor pays such
Taxes, liens or charges prior to the delinquency thereof, unless Trustor
delivers evidence satisfactory to Beneficiary that, as a result of Trustor's
contest, Trustor's obligation to pay such Taxes, liens or charges has been
deferred by the appropriate governmental authority, in which event, Trustor may
defer such payment of such Taxes, liens or charges until the date specified by
such governmental authority, (iii) such contest shall be promptly and diligently
prosecuted by and at the expense of Trustor, (iv) Beneficiary shall not thereby
suffer any civil penalty, or be subjected to any criminal penalties or
sanctions, (v) such contest shall be discontinued and such Tax, liens or charges
promptly paid if at any time all or any part of the Trust Property shall be in
imminent danger of being foreclosed, sold, forfeited, or otherwise lost or if
the lien of this Deed of Trust or the priority thereof shall be in imminent
danger of being impaired, (vi) Trustor shall have set aside adequate reserves
(in Beneficiary's reasonable judgment) for the payment of such Taxes, liens or
charges, together with all interest and penalties thereon and (vii) Trustor
shall have furnished security to Beneficiary (or to such other party as may be
required in such proceeding), in an amount as may be required in the proceeding,
but in no event less than an amount equal to 125% of the contested amount, to
insure the payment of any such Taxes, liens or charges, together with all
interest and penalties thereon.
5. Intentionally Omitted.
6. Intentionally Omitted.
7. Leases and Rents.
(a) Trustor doe hereby absolutely and unconditionally
assign to Beneficiary its right, title and interest in all current and future
Leases and Rents, it being intended by Trustor that this assignment constitutes
a present, absolute assignment and not an assignment for additional security
only. Except as otherwise specifically provided for in that certain
Subordination, Non-Disturbance and Attornment Agreement dated of even date
herewith by and among Trustor, Tenant and Beneficiary, such assignment to
Beneficiary shall not be construed to bind Beneficiary to the performance of any
of the covenants, conditions or provisions contained in any such Lease or
otherwise to impose any obligation upon Beneficiary. Trustor agrees to execute
and deliver to Beneficiary such additional instrument in form and reasonably
substance satisfactory to Beneficiary, as may hereafter be requested by
Beneficiary to further evidence and confirm such assignment. Nevertheless,
subject to the terms of this Paragraph 7 and the terms of the Lockbox Security
Agreement, Beneficiary grants to Trustor a revocable license to operate and
manage the Trust Property and to collect the Rents. Subject to the terms of the
Lockbox Security Agreement, Trustor shall hold the Rents, or a portion thereof
sufficient to discharge all current sums due on the Indebtedness, in
13
trust for the benefit of Beneficiary for use in the payment of such sums. Upon
the occurrence of an Event of Default, the license granted to Trustor herein
shall be automatically revoked and Beneficiary shall immediately be entitled to
possession of all Rents, whether or not Beneficiary enters upon or takes control
of the Trust Property. Beneficiary is hereby granted and assigned by Trustor the
right, at its option, upon the revocation of the license granted herein to enter
upon the Trust Property in person, by agent or by court-appointed receiver to
collect the Rents. Any Rents collected after the revocation of the license
herein granted may be applied toward payment of the Indebtedness in such
priority and proportion as Beneficiary in its discretion shall deem proper. It
is further the intent of Trustor and Beneficiary that the Rents hereby
absolutely assigned are no longer, during the term of this Deed of Trust, Trust
Property of Trustor or Trust Property of any estate of Trustor as defined in
Section 541 of the Bankruptcy Code and shall not constitute collateral, cash or
otherwise, of Trustor. The term "Rents" as used herein shall mean the gross
rents without deduction or offsets of any kind.
(b) All Leases executed after the date of this Deed
of Trust shall provide that they are subordinate to this Deed of Trust and that
the lessee agrees to attorn to Beneficiary; provided, however, that nothing
herein shall affect Beneficiary's right to designate from time to time any one
or more Leases as being superior to this Deed of Trust and Trustor shall execute
and deliver to Beneficiary and shall cause to be executed and delivered to
Beneficiary from each tenant under such Lease any instrument or agreement as
Beneficiary may reasonably deem necessary to make such Lease superior to this
Deed of Trust. Upon request, Trustor shall promptly furnish Beneficiary with
executed copies of all Leases.
(c) With respect to each Lease, Trustor shall (i)
fulfill or perform each and every provision thereof on the lessor's part to be
fulfilled or performed, (ii) promptly send copies to Beneficiary of all notices
of default which Trustor shall send or receive thereunder and (iii) enforce all
of the terms, covenants and conditions contained in such Lease upon the lessee's
part to be performed, short of termination thereof.
8. Maintenance and Use of Trust Property. Pursuant to the
terms of the Lease Agreement and the Management Agreement, Tenant and/or Manager
is obligated to maintain the Trust Property in the manner provided for therein.
In the event that Tenant and/or Manager fails to maintain the Trust Property as
provided for in the Lease Agreement or the Management Agreement, as the case may
be, and such failure continues beyond the expiration of any applicable notice or
cure period provided for in the Lease Agreement or the Management Agreement, as
the case may be, Trustor shall, at its sole cost and expense, keep and maintain
the Trust Property, including, without limitation, parking lots and recreational
and landscaped portions thereof, if any, in good order and condition. Except as
otherwise specifically provided for in the Lease Agreement and the Management
Agreement, the Improvements and the Equipment shall not be diminished, removed,
demolished or materially altered (except for normal replacement of Equipment)
and Trustor shall not erect, or permit Tenant to erect, any new buildings,
structures or building additions on the Trust Property without the prior consent
of Beneficiary, which consent shall not be unreasonably withheld, delayed or
conditioned and which consent shall not be required unless Trustor reasonably
14
expects that such action may have a material adverse effect on the Trust
Property; provided, however, (i) if the total cost of erecting any buildings,
structures or building additions on the Trust Property (the "Total Cost") will
exceed $____________________, or (ii) if any buildings, structures or building
additions are being erected on any property encumbered by any of the Other
Mortgages contemporaneously with the erection of any new buildings, structures
or building additions on the Trust Property and the aggregate of (a) the Total
Cost plus (b) cost of erecting any such new buildings, structures or building
additions on such other property encumbered by any of the Other Mortgages
exceeds $12,500,000.00, then Trustor shall deliver, or cause to be delivered, to
Beneficiary security in an amount equal to or greater than the Total Cost, to
insure the full payment of the Total Cost. Pursuant to the terms of the Lease
Agreement and the Management Agreement, Tenant and/or Manager is obligated to
comply with all laws, orders and ordinances affecting the Trust Property or the
use thereof. In the event that Tenant and/or Manager fails to comply with all
laws, orders and ordinances affecting the Trust Property or the use thereof as
provided for in the Lease Agreement or the Management Agreement, as the case may
be, and such failure continues beyond the expiration of any applicable notice or
cure period provided for in the Lease Agreement or the Management Agreement, as
the case may be, Trustor shall, at its sole cost and expense, cause the Trust
Property or the use thereof to comply with all laws, orders and ordinances
affecting the Trust Property or the use thereof; provided, however, that nothing
in the foregoing clause shall require Trustor to comply with any such law, order
or ordinance so long as Trustor, Tenant or Manager, as the case may be, shall in
good faith, after notice to, but without cost or expense to, Beneficiary,
contest the validity of such law, order or ordinance by appropriate legal
proceedings and in accordance with all applicable law, which proceedings must
operate to prevent (a) the enforcement thereof, (b) the payment of any fine,
charge or penalty, (c) the sale or forfeiture of the Trust Property or any part
thereof, (d) the lien of this Deed of Trust and the priority thereof from being
impaired, (e) the imposition of criminal liability on Beneficiary and (f) the
imposition, unless stayed, of civil liability on Beneficiary; provided that
during such contest Trustor, subject to any applicable provisions of the Lease
Agreement and/or the Management Agreement, shall, or shall cause Tenant or
Manager to, at the option of Beneficiary, provide cash, bonds or other security
satisfactory to Beneficiary, indemnifying and protecting Beneficiary against any
liability, loss or injury by reason of such non-compliance or contest, and
provided further, that such contest shall be promptly and diligently prosecuted
by and at the expense of Trustor, Tenant or Manager, as the case may be. Trustor
shall not commit, or permit Tenant or Manager to commit, any waste at the Trust
Property. Trustor shall not initiate, join in, acquiesce in, or consent to any
change in any private restrictive covenant, zoning law or other public or
private restriction, limiting or defining the uses which may be made of the
Trust Property or any part thereof to the extent that same would be inconsistent
with the continued use of the Trust Property as a hotel. If under applicable
zoning provisions the use of all or any portion of the Trust Property is or
shall become a nonconforming use, Trustor will not cause or permit such
nonconforming use to be discontinued or abandoned without the express consent of
Beneficiary. Trustor covenants and agrees that it shall cause the Trust Property
to be operated at all times in the manner provided for in the Lease Agreement.
15
9. Transfer or Encumbrance of the Trust Property.
(a) Trustor acknowledges that Beneficiary has
examined and relied on the creditworthiness and experience of Trustor in owning
and operating properties such as the Trust Property in agreeing to make the
Loan, and that Beneficiary will continue to rely on Trustor's ownership of the
Trust Property as a means of maintaining the value of the Trust Property as
security for repayment of the Indebtedness. Trustor acknowledges that
Beneficiary has a valid interest in maintaining the value of the Trust Property
so as to ensure that, should Trustor default in the repayment of the
Indebtedness, Beneficiary can recover the Indebtedness by a sale of the Trust
Property. Except as is otherwise specifically provided for in Section 2.3 of the
Loan Agreement, Trustor shall not, without the prior consent of Beneficiary,
sell, convey, alienate, mortgage, encumber, pledge or otherwise transfer the
Trust Property or any part thereof, or permit the Trust Property or any part
thereof to be sold, conveyed, alienated, mortgaged, encumbered, pledged or
otherwise transferred.
(b) A sale, conveyance, alienation, mortgage,
encumbrance, pledge or transfer within the meaning of this Paragraph 9 shall be
deemed to include (i) an installment sales agreement wherein Trustor agrees to
sell the Trust Property or any part thereof for a price to be paid in
installments, (ii) a sale, assignment or other transfer of, or the grant of a
security interest in, Trustor's right, title and interest in and to any Leases
or any Rents, (iii) if Trustor is a corporation, the voluntary or involuntary
sale, conveyance or transfer of Trustor's stock or the creation or issuance of
new stock in one or a series of transactions by which (A) an aggregate of more
than 10% of Trustor's stock shall be vested in a party or parties who are not
now stockholders, or (B) 49% or more of Trustor's stock shall be vested in a
party or parties who do not now own 49% or more of Trustor's stock and (iv) if
Trustor is a limited or general partnership, joint venture or limited liability
company, the change, removal, resignation or addition of a general partner,
managing partner, limited partner, joint venturer or member or the transfer of
the partnership interest of any general partner, managing partner or limited
partner or the transfer of the interest of any joint venturer or member.
(c) Beneficiary shall not be required to demonstrate
any actual impairment of its security or any increased risk of default hereunder
in order to declare the Indebtedness immediately due and payable upon Trustor's
sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the
Trust Property without Beneficiary's consent. This provision shall apply to
every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of
the Trust Property regardless of whether voluntary or not, or whether or not
Beneficiary has consented to any previous sale, conveyance, alienation,
mortgage, encumbrance, pledge or transfer of the Trust Property.
(d) Beneficiary's consent to one sale, conveyance,
alienation, mortgage, encumbrance, pledge or transfer of the Trust Property
shall not be deemed to be a waiver of Beneficiary's right to require such
consent to any future occurrence of same. Any sale, conveyance, alienation,
mortgage, encumbrance, pledge or transfer of the Trust Property made in
contravention of this paragraph shall be null and void and of no force and
effect.
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(e) Trustor agrees to bear and shall pay or reimburse
Beneficiary on demand for all reasonable expenses (including, without
limitation, reasonable attorneys' fees and disbursements, title search costs and
title insurance endorsement premiums) incurred by Beneficiary in connection with
the review, approval and documentation of any such sale, conveyance, alienation,
mortgage, encumbrance, pledge or transfer.
10. Estoppel Certificates.
(a) Trustor, within ten (10) Business Days after
request by Beneficiary, shall furnish Beneficiary from time to time with a
statement, duly acknowledged and certified, setting forth (i) the amount of the
original principal amount of the Note, (ii) the unpaid principal amount of the
Note, (iii) the rate of interest in the Note, (iv) the date through which all
installments of interest, commitment fees and/or principal have been paid, (v)
any offsets or defenses to the payment of the Indebtedness, if any, (vi) that
the Note and this Deed of Trust have not been modified or if modified, giving
particulars of such modification and (vii) such other information as shall be
requested by Beneficiary.
(b) Beneficiary, within ten (10) Business Days after
request by Trustor, shall furnish Trustor from time to time with a statement,
duly acknowledged and certified, setting forth (i) the amount of the original
principal amount of the Note, (ii) the unpaid principal amount of the Note,
(iii) the rate of interest in the Note, (iv) the date through which all
installments of interest, commitment fees and/or principal have been paid, and
(v) that the Note and this Deed of Trust have not been modified or if modified,
giving particulars of such modification.
(c) Trustor, after request by Beneficiary, will
obtain and furnish (within the time periods, if any, provided in the applicable
Leases or if no time period is so specified, within ten (10) business days after
request) Beneficiary from time to time with estoppel certificates from any
tenants under then existing Leases, which certificates shall be in form and
substance as required by such Leases, or if not required, then in form and
substance reasonably satisfactory to Beneficiary.
11. No Cooperative or Condominium. Trustor shall not operate
the Trust Property, or permit the Trust Property to be operated as a cooperative
or condominium building or buildings in which the tenants or occupants
participate in the ownership, control or management of the Trust Property or any
part thereof, as tenant stockholders or otherwise.
12. Changes in the Laws Regarding Taxation. If any law is
enacted or adopted or amended after the date of this Deed of Trust which deducts
the Indebtedness or any portion thereof from the value of the Trust Property for
the purpose of taxation or which imposes a tax, either directly or indirectly,
on the principal amount of the Note or Beneficiary's interest in the Trust
Property, Trustor will pay such tax, with interest and penalties thereon, if
any. In the event Beneficiary is advised by counsel chosen by it that the
payment of such tax or interest and penalties by Trustor would be unlawful or
taxable to Beneficiary or unenforceable or provide the basis for a defense of
usury, then in any such
17
event, Beneficiary shall have the option, by notice of not less than thirty (30)
days, to declare the Indebtedness immediately due and payable.
13. No Credits on Account of the Indebtedness. Trustor will
not claim or demand or be entitled to any credit or credits on account of the
Indebtedness for any part of the Taxes assessed against the Trust Property or
any part thereof and no deduction shall otherwise be made or claimed from the
taxable value of the Trust Property, or any part thereof, by reason of this Deed
of Trust or the Indebtedness. In the event such claim, credit or deduction shall
be required by law, Beneficiary shall have the option, by notice of not less
than thirty (30) days, to declare the Indebtedness immediately due and payable.
14. Documentary Stamps. If at any time the United States of
America, any State thereof or any subdivision of any such State shall require
revenue or other stamps to be affixed to the Note or this Deed of Trust, or
impose any other tax or charge on the same, Trustor will pay for the same, with
interest and penalties thereon, if any.
15. Right of Entry. Subject to the rights of Tenant under the
Lease Agreement and Manager under the Management Agreement, Beneficiary and its
agents shall have the right to enter and inspect the Trust Property at any time
during reasonable business hours upon twenty-four (24) hour notice to Trustor
except in the case of an emergency, in which event Beneficiary and its agents
may enter and inspect the Trust Property at any time.
16. Books and Records.
(a) Trustor will maintain full and accurate books of
accounts and other records reflecting the result of the operations of Trustor
and will furnish, or cause to be furnished, to Beneficiary and the Rating Agency
(as such term is defined in the Loan Agreement) on or before fifteen (15) days
following the required date by which Hospitality Properties Trust, a real estate
investment trust organized under the laws of the State of Maryland ("HPT") must
file its quarterly reports with the Securities and Exchange Commission ("SEC"),
accompanied by a certificate of the chief financial officer of Trustor stating
that such items are true, correct, accurate, and complete and fairly present the
financial condition and results of the operations of Trustor, quarterly
unaudited financial statements showing the combined operations of Trustor and
HPTWN, with footnotes presenting the consolidating financial statements of
Trustor and HPTWN, including Trustor's balance sheet and the related statements
of income and cash flows, all in reasonable detail, and prepared with respect to
such quarterly periods in accordance with generally accepted accounting
principles, consistently applied. In addition, Trustor will furnish, or cause to
be furnished, to Beneficiary and the Rating Agency on or before fifteen (15)
days following the required date by which HPT must file its annual reports with
the SEC, accompanied by a certificate of the chief financial officer of Trustor
stating that such items are true, correct, accurate, and complete and fairly
present the financial condition and results of the operations of Trustor, annual
audited financial statements showing the combined operations of Trustor and
HPTWN, with footnotes presenting the consolidating financial statements of
Trustor and HPTWN, including Trustor's balance sheet and the related statements
of income and cash flows, all in
18
reasonable detail, and prepared with respect to such prior twelve (12) calendar
month period in accordance with generally accepted accounting principles,
consistently applied.
(b) Trustor shall furnish to Beneficiary and the
Rating Agency (i) within five (5) days of receipt from Tenant and with respect
to each Accounting Period (as that term is defined in the Loan Agreement) of
Tenant, unaudited operating statements with respect to Tenant's or Manager's
operation of the Trust Property as a hotel, such operating statements to be in
form and substance required by the terms of the Lease Agreement and/or the
Management Agreement, as the case may be, and to set forth the comparable
information for the same period within the Tenant's or Manager's, as applicable,
prior fiscal year, (ii) not later than one hundred twenty (120) days following
the end of each calendar year, annual audited statements of Tenant on a
consolidated basis with respect to the Trust Property and any other hotel
property leased by Tenant from Trustor (the "Other Hotel Properties"), showing
total hotel revenues derived by Tenant from the Trust Property and the Other
Hotel Properties for the immediately preceding fiscal year, (iii) not later than
fifteen (15) days following the filing by HPT of its annual statements with the
SEC, unaudited annual operating statements with respect to Tenant's or Manager's
operation of the Trust Property as a hotel, such annual statements to be in form
and substance required by the terms of the Lease Agreement and/or the Mangement
Agreement, as the case may be, and (iv) within five (5) days of receipt from
Tenant, all items and information delivered by Tenant to Trustor in accordance
with Section 17.2 of the Lease Agreement. Beneficiary agrees to treat the
information provided to it pursuant to clause (i) of the immediately preceding
sentence as confidential, as provided for in Section 3.1.2(d) of the Lease
Agreement and Section 20.04 of the Management Agreement.
(c) Beneficiary shall have the right, upon five (5)
days' prior notice to Trustor, to inspect and make copies of Trustor's books and
records and income tax returns.
17. Performance of Other Agreements. Trustor shall observe and
perform each and every term to be observed or performed by such Trustor pursuant
to the terms of any agreement or recorded instrument affecting or pertaining to
the Trust Property.
18. Representations and Covenants Concerning Loan. Trustor
represents, warrants and covenants as follows:
(a) The Note, this Deed of Trust and the other Loan
Documents are not subject to any right of rescission, set-off, counterclaim or
defense, including the defense of usury, nor would the operation of any of the
terms of the Note, this Deed of Trust and the other Loan Documents, or the
exercise of any right thereunder, render this Deed of Trust unenforceable, in
whole or in part, or subject to any right of rescission, set-off, counterclaim
or defense, including the defense of usury.
(b) To the best of Trustor's knowledge all material
certifications, permits, licenses and approvals, including, without limitation,
certificates of completion and occupancy permits required for the legal use and
occupancy of the Trust Property, have been obtained and are in full force and
effect. Trustor shall keep and maintain, or shall cause
19
Tenant and/or Manager to keep and maintain, all material licenses necessary for
the operation of the Trust Property as a hotel as currently operated. The Trust
Property is free of material damage and is in good repair, and Trustor has
received no notice of any proceeding pending for the total or partial
condemnation of, or affecting, the Trust Property.
(c) Except as previously disclosed to Beneficiary in
writing, the Trust Property is not subject to any Leases other than the Lease
Agreement. No person has any possessory interest in the Trust Property or right
to occupy the same except hotel guests and except under and pursuant to the
provisions of the Lease Agreement and the Management Agreement.
(d) There has not been and shall never be committed
by Trustor any act or omission affording the federal government or any state or
local government the right of forfeiture as against the Trust Property or any
part thereof or any monies paid in performance of Trustor's obligations under
any of the Loan Documents. Trustor hereby covenants and agrees not to commit,
permit or suffer to exist any act or omission affording such right of
forfeiture.
(e) The Lease Agreement, between Trustor and Tenant,
is in full force and effect and, to the best of Trustor's knowledge, there is no
default, breach or violation existing thereunder by any party thereto and no
event has occurred (other than payments due but not yet delinquent) that, with
the passage of time or the giving of notice, or both, would constitute a
material default, breach or xxxxx ion by any party thereunder.
(f) The Management Agreement is in full force and
effect and, to the best of Trustor's knowledge, there is no material default,
breach or violation existing thereunder by any party thereto and no event has
occurred (other than payments due but not yet delinquent) that, with the passage
of time or the giving of notice, or both, would constitute a default, breach or
violation by any party thereunder.
(g) Neither the execution and delivery of the Loan
Documents, the Trustor's performance thereunder, the recordation of this Deed of
Trust, nor the exercise of any remedies by Beneficiary, will adversely affect,
in any material respect, Trustor's rights under any of the licenses in effect
with respect to the Trust Property.
19. Intentionally Omitted.
20. Events of Default; Remedies. Each of the following events
shall constitute an "Event of Default" hereunder:
(a) if Trustor shall fail to pay any installment of
interest payable in respect of the outstanding principal balance of the Note on
or prior to the date on which such installment is due as provided in the Note or
shall fail to pay to Beneficiary the entire Indebtedness on or prior to the
Maturity Date (as that term is defined in the Note);
20
(b) if Trustor shall fail to pay any other amount
required to be paid by Trustor hereunder or under the Note or any other Loan
Document, and such failure continues for a period of ten (10) days following
Trustor's receipt of written notice of such failure from the Beneficiary;
(c) if any material representation or warranty made
by Trustor herein or in any other Loan Document shall prove to be incorrect in
any material respect as of the date made; provided, however, that if the
consequences of such representation or warranty being incorrect are susceptible
of being remedied, Trustor shall have a period of thirty (30) days after the
Trustor has received written notice from Beneficiary making demand upon Trustor
to remedy such consequences, in which to remedy same; and further provided that
if such consequences are susceptible of being remedied, but are not susceptible
of being remedied within such thirty (30) day period and Trustor has commenced
the remedy thereof within such thirty (30) day period and thereafter diligently
pursues such remedy to completion, then such initial thirty (30) day period
shall be extended to a period of ninety (90) days following Trustor's receipt of
the aforesaid notice of demand or such longer period to which Beneficiary may
consent in writing (which consent shall not be unreasonably withheld);
(d) if Trustor shall fail duly to observe or perform
in any material respect any other of the covenants or agreements of Trustor set
forth in this Deed of Trust or any other Loan Document (except those
specifically set forth in Paragraphs 20(e) through (h) below, for which there is
no notice or cure period); provided, however, that if such failure by Trustor to
duly observe or perform in any material respect any such covenants or agreements
of Trustor is susceptible of being remedied, Trustor shall have a period of
thirty (30) days after Trustor has received written notice from Beneficiary
making demand upon Trustor to remedy such failure, in which to remedy same; and
further provided that if such failure is susceptible of being remedied, but is
not susceptible of being remedied within such thirty (30) day period and Trustor
has commenced the remedy thereof within such thirty (30) day period and
thereafter diligently pursues such remedy to completion, then such initial
thirty (30) day period shall be extended to a period of ninety (90) days
following Trustor's receipt of the aforesaid notice of demand or such longer
period to which Beneficiary may consent in writing (which consent shall not be
unreasonably withheld);
(e) if the Policies are not kept in full force and
effect, or if the Policies are not delivered to Beneficiary within ten (10)
Business Days after request by Beneficiary;
(f) if any of the events described in Paragraph 42
shall occur;
(g) if there shall occur any Event of Default under,
and as term is defined in, any of the Other Mortgages (hereinafter defined); or
(h) if Trustor fails to comply with the provisions of
Section 3.1(iii) or Section 5.4 of the Loan Agreement.
21
Upon the occurrence of any Event of Default, the Indebtedness
shall immediately become due at the option of Beneficiary.
Trustor agrees that (a) if any amount payable under this Deed
of Trust, the Note or any other Loan Document is not paid when such payment is
due, whether by acceleration or otherwise, Trustor shall pay interest at the
Reimbursement Rate (as that term is defined in the Note) with respect to such
amount, upon demand from time to time, to the extent permitted by applicable
law, from the date such amount was due until such amount has been paid by
Trustor, and (b) upon the occurrence of any Event of Default and the
acceleration by Beneficiary of the whole of the principal sum of the Note,
together with all interest accrued and unpaid thereon, Trustor shall pay
interest at the Default Rate (as that term is defined in the Note) with respect
to the entire outstanding principal amount of the Note, upon demand from time to
time. Notwithstanding the foregoing, if the unpaid Indebtedness or any other
amount required to be paid on the Maturity Date (as that term is defined in the
Note) or upon acceleration of the Loan is not paid when due, then interest shall
thereafter be computed and paid at the Default Rate without notice to Trustor.
This charge shall be added to the Indebtedness, and shall be deemed secured by
this Deed of Trust. This clause, however, shall not be construed as an agreement
or privilege to extend the date of the payment of the Indebtedness, nor as a
waiver of any other right or remedy accruing to Beneficiary by reason of the
occurrence of any Event of Default. In the event the Reimbursement Rate or the
Default Rate is above the maximum rate permitted by applicable law, the
Reimbursement Rate or the Default Rate (as the case may be) shall be the maximum
rate permitted by applicable law.
Upon the occurrence of any Event of Default, Beneficiary may,
to the extent permitted under applicable law, elect to treat the fixtures
included in the Trust Property either as real Trust Property or as personal
Trust Property, or both, and proceed to exercise such rights as apply thereto.
With respect to any sale of real Trust Property included in the Trust Property
made under the powers of sale herein granted and conferred, Beneficiary may, to
the extent permitted by applicable law, include in such sale any fixtures
included in the Trust Property and relating to such real Trust Property. The
foregoing shall be subject to the rights of the Tenant under the Lease Agreement
and the Manager under the Management Agreement.
21. Additional Remedies.
(a) Upon the occurrence of any Event of Default,
Beneficiary may take such action, without notice or demand, as it shall deem
advisable to protect and enforce its rights against Trustor and in and to the
Trust Property or any part thereof or interest therein, including, but not
limited to, the following actions, each of which may be pursued concurrently or
otherwise, at such time and in such order as Beneficiary may determine, in its
sole discretion, without impairing or otherwise affecting the other rights and
remedies of Beneficiary or Trustee (i) enter into or upon the Trust Property,
either personally or by its agents, nominees or attorneys and dispossess Trustor
and its agents and servants therefrom, and thereupon Beneficiary may (A) use,
operate, manage, control, insure, maintain, repair, restore and otherwise deal
with all and every part of the Trust Property and conduct the
22
business thereat, (B) complete any construction on the Trust Property in such
manner and form as Beneficiary deems advisable, (C) make alterations, additions,
renewals, replacements and improvements to or on the Trust Property, (D)
exercise all rights and powers of Trustor with respect to the Trust Property,
whether in the name of Trustor or otherwise, including, without limitation, the
right to make, cancel, enforce or modify leases, obtain and evict tenants, and
demand, xxx for, collect and receive all earnings, revenues, rents, issues,
profits and other income of the Trust Property and every part thereof and (E)
apply the receipts from the Trust Property to the payment of the Indebtedness,
after deducting therefrom all expenses (including reasonable attorneys' fees and
expenses) incurred in connection with the aforesaid operations and all amounts
necessary to pay the taxes, assessments, insurance and other charges in
connection with the Trust Property, as well as just and reasonable compensation
for the services of Beneficiary and Trustee and their counsel, agents and
employees, or (ii) institute proceedings for the complete foreclosure of this
Deed of Trust in which case the Trust Property may be sold for cash or upon
credit in one or more parcels, or (iii) with or without entry, to the extent
permitted and pursuant to the procedures provided by applicable law, institute
proceedings for the partial foreclosure of this Deed of Trust for the portion of
the Indebtedness then due and payable, subject to the continuing lien of this
Deed of Trust for the balance of the Indebtedness not then due, or (iv) sell for
cash or upon credit the Trust Property or any part thereof and all or any part
of any estate, claim, demand, right, title and interest of Trustor therein and
rights of redemption thereof, pursuant to power of sale or otherwise, at one or
more sales, as an entity or in parcels, at such time and place, upon such terms
and after such notice thereof as may be required or permitted by law, and in the
event of a sale, by foreclosure or otherwise, of less than all of the Trust
Property, this Deed of Trust shall continue as a lien on the remaining portion
of or estate in the Trust Property, or (v) institute an action, suit or
proceeding in equity for the specific performance of any covenant, condition or
agreement contained herein or in the Note or any other Loan Document, or (vi)
recover judgment on the Note either before, during or after any proceedings for
the enforcement of this Deed of Trust or (vii) pursue such other remedies as
Beneficiary may have under applicable law.
(b) The purchase money proceeds or avails of any sale
made under or by virtue of this Paragraph, together with any other sums which
then may be held by Beneficiary under this Deed of Trust, whether under the
provisions of this Paragraph or otherwise, shall be applied as follows:
First: To the payment of the reasonable costs and expenses of
any such sale, including reasonable compensation to Beneficiary and Trustee,
their agents and counsel, and of any judicial proceedings wherein the same may
be made, and of all expenses, liabilities and advances made or incurred by
Beneficiary or Trustee under this Deed of Trust, together with interest at the
applicable Interest Rate (as that term is defined in the Note) on all advances
made by Beneficiary or Trustee and all taxes or assessments, except any taxes,
assessments or other charges subject to which the Trust Property shall have been
sold.
23
Second: To the payment of the whole amount then due, owing or
unpaid upon the Note for principal, together with interest at the applicable
Interest Rate, fees and late charges.
Third: To the payment of any other sums required to be paid by
Trustor pursuant to any provision of this Deed of Trust or of the Note.
Fourth: To the payment of additional interest amounts owing by
Trustor as a result of the Reimbursement Rate and/or the Default Rate, as the
case may be, having been imposed with respect to the Indebtedness pursuant to
the terms hereof or of the Note.
Fifth: To the payment of the surplus, if any, to whomsoever
may be lawfully entitled to receive the same.
Beneficiary and any receiver of the Trust Property, or any part thereof, shall
be liable to account for only those rents, issues and profits actually received
by it.
(c) Beneficiary or Trustee may adjourn from time to
time any sale by Beneficiary or Trustee to b made under or by virtue of this
Deed of Trust by announcement at the time and place appointed for such sale or
for such adjourned sale or sales; and, except as otherwise provided by any
applicable provision of law, Beneficiary or Trustee, without further notice or
publication, may make such sale at the time and place to which the same shall be
so adjourned.
(d) Upon the completion of any sale or sales made by
Beneficiary or Trustee under or by virtue of this Paragraph, Beneficiary or
Trustee, or an officer of any court empowered to do so, shall execute and
deliver to the accepted purchaser or purchasers a good and sufficient
instrument, or good and sufficient instruments, conveying, assigning and
transferring all estate, right, title and interest in and to the Trust Property
and rights sold. Beneficiary and Trustee are each hereby irrevocably appointed
the true and lawful attorney of Trustor, in its name and stead, to make all
necessary conveyances, assignments, transfers and deliveries of the Trust
Property and rights so sold and for that purpose Beneficiary and/or Trustee may
execute all necessary instruments of conveyance, assignment and transfer, and
may substitute one or more persons with like power, Trustor hereby ratifying and
confirming all that its said attorney or such substitute or substitutes shall
lawfully do by virtue hereof. Any such sale or sales made under or by virtue of
this Paragraph, whether made under the power of sale herein granted or under or
by virtue of judicial proceedings or of a judgment or decree of foreclosure and
sale, shall operate to divest all the estate, right, title, interest, claim and
demand whatsoever, whether at law or in equity, of Trustor in and to the
properties and rights so sold, and shall be a perpetual bar both at law and in
equity against Trustor and against any and all persons claiming or who may claim
the same, or any part thereof from, through or under Trustor.
(e) In the event of any sale made under or by virtue
of this Paragraph (whether made under the power of sale herein granted or under
or by virtue of judicial proceedings or of a judgment or decree of foreclosure
and sale) the entire
24
Indebtedness, if not previously due and payable, immediately thereupon shall,
anything in the Note, this Deed of Trust, or any other Loan Document to the
contrary notwithstanding, become due and payable.
(f) Upon any sale made under or by virtue of this
Paragraph (whether made under the power of sale herein granted or under or by
virtue of judicial proceedings or of a judgment or decree of foreclosure and
sale), Beneficiary may bid for and acquire the Trust Property or any part
thereof and in lieu of paying cash therefor may make settlement for the purchase
price by crediting upon the Indebtedness the net sales price after deducting
therefrom the expenses of the sale and the costs of the action and any other
sums which Beneficiary is authorized to deduct under this Deed of Trust.
(g) No recovery of any judgment by Beneficiary and no
levy of an execution under any judgment upon the Trust Property or upon any
other Trust Property of Trustor shall affect in any manner or to any extent, the
lien of this Deed of Trust upon the Trust Property or any part thereof, or any
liens, rights, powers or remedies of Beneficiary hereunder, but such liens,
rights, powers and remedies of Beneficiary shall continue unimpaired as before.
22. Right to Cure Defaults. Upon the occurrence of any Event
of Default or if Trustor fails to make any payment or to do any act as herein
provided, Beneficiary may, but without any obligation to do so and without
notice to or demand on Trustor and without releasing Trustor from any obligation
hereunder, make or do the same in such manner and to such extent as Beneficiary
may deem necessary to protect the security hereof. Without limiting the
foregoing, Beneficiary may enter upon the Trust Property for such purposes or
appear in, defend, or bring any action or proceeding to protect its interest in
the Trust Property, and the cost and expense thereof (including, without
limitation, attorneys' fees and disbursements to the extent permitted by law),
with interest as provided in this Paragraph, shall be immediately due and
payable to Beneficiary upon demand by Beneficiary therefor. All such costs and
expenses incurred by Beneficiary in remedying such Event of Default or in
appearing in, defending, or bringing any such action or proceeding shall bear
interest at the Default Rate, for the period from the date that such cost or
expense was incurred to the date of payment to Beneficiary. All such costs and
expenses, together with interest thereon at the Default Rate, shall be added to
the Indebtedness and shall be secured by this Deed of Trust. If the principal
sum of the Note or any other amount required to be paid on the Maturity Date
under the Note shall not be paid on the Maturity Date, interest shall thereafter
be computed and paid at the Default Rate.
(b) In order to facilitate Beneficiary's rights under
subparagraph (a) above, subject to the rights of Tenant under the Lease
Agreement and Manager under the Management Agreement, Trustor hereby further
grants to Beneficiary and any agents, employees, contractors, engineers,
architects, nominees, attorneys and other representatives of Beneficiary, an
easement on, over, through and under the Trust Property in order to exercise any
such rights. Such easement is self-effectuating and runs with the Land, and
shall be binding upon Trustor and all successors and assigns of Trustor. Trustor
shall cause the
25
foregoing rights of Beneficiary and easement to be agreed to by and binding upon
all tenants of the Trust Property and all successors and assigns of such
tenants. Trustor shall promptly execute, and cause to be executed, any other
documents required by Beneficiary in order to confirm further the foregoing
rights of Beneficiary and easement. For the foregoing purposes, Trustor
constitutes and appoints Beneficiary its true and lawful attorney-in-fact with
full power of substitution to exercise any such rights in the name of Trustor.
Trustor empowers said attorney-in-fact to do any and every act which Trustor
might do in its own behalf to fulfill the terms of this Deed of Trust. It is
further understood and agreed that the foregoing power of attorney, which shall
be deemed to be a power coupled with an interest, cannot be revoked. Trustor
specifically agrees that all powers granted to Beneficiary under this Deed of
Trust may be assigned by Beneficiary to its successors or assigns as holder of
the Note.
(c) Trustor specifically admits and acknowledges that a prima
facie showing of the occurrence of any Event of Default also constitutes a
showing (i) of irreparable injury to Beneficiary, for which Beneficiary may have
no adequate remedy at law, and (ii) that the balance of hardships weighs in
favor of Beneficiary. Immediately upon learning of any such Event of Default, in
addition to any other rights or remedies available under this Deed of Trust or
at law or in equity, Beneficiary shall have the right to, but shall not be
obligated to, (i) institute an action, suit or proceeding in equity for the
specific performance of any such term, provision or condition; (ii) institute an
action, suit or proceeding against Trustor for damages resulting from such Event
of Default; and/or (iii) commence an action against Trustor for injunctive
relief, and may move, ex parte and without notice to Trustor, for a temporary
restraining order or preliminary injunction, prohibitory and/or mandatory as the
circumstances require, restraining and prohibiting any such threatened breach,
anticipatory breach or breach. Trustor expressly waives any requirement that
Beneficiary posts a bond or undertaking for any such temporary restraining order
or preliminary injunction described in clause (iii) above.
23. Late Payment Charge. If any monthly interest payment is
not paid in full on or before ten (10) days following the date on which it is
due, Trustor shall pay to Beneficiary upon demand an amount equal to the Late
Charge (as that term is defined in the Note). Such Late Charge shall be paid to
defray the expenses incurred by Beneficiary in handling and processing such
delinquent payment, and to compensate Beneficiary for the loss of the use of
such delinquent payment, and such amount shall be secured by this Deed of Trust
and the other Loan Documents. Such Late Charge shall be in addition to interest
at the Default Rate and all other rights and remedies available to Beneficiary
upon the occurrence of an Event of Default or a default under the Loan
Documents.
24. Prepayment After Event of Default. If following the
occurrence of any Event of Default, Trustor shall tender payment of an amount
sufficient to satisfy the Indebtedness at any time prior to a sale of the Trust
Property either through foreclosure or the exercise of other remedies available
to Beneficiary under this Deed of Trust, such tender by Trustor shall be deemed
to be a voluntary prepayment under the Note and this Deed of Trust in the amount
tendered and any applicable prepayment consideration specified in the Note shall
apply.
26
25. Prepayment. The Indebtedness may be prepaid only in
accordance with the terms of the Note.
26. Appointment of Receiver. Beneficiary, upon the occurrence
of an Event of Default or in any action to foreclose this Deed of Trust, shall
be entitled to the appointment of a receiver without notice and without regard
to the value of the Trust Property as security for the Indebtedness or the
solvency or insolvency of any person liable for the payment of the Indebtedness.
27. Security Agreement. This Deed of Trust is both a real
property Deed of Trust and a "security agreement" within the meaning of the
Uniform Commercial Code. The Trust Property includes both real and personal
property and all other rights and interests, whether tangible or intangible in
nature, of Trustor, if any, in the Trust Property. Trustor, by executing and
delivering this Deed of Trust grants to Beneficiary, as security for the
Indebtedness, a security interest in the Trust Property to the full extent that
the Trust Property may be subject to the Uniform Commercial Code (such portion
of the Trust Property so subject to the Uniform Commercial Code being called in
this Paragraph the "Collateral"). Trustor shall execute and deliver to
Beneficiary, in form and substance reasonably satisfactory to Beneficiary, such
financing statements and further assurances as Beneficiary may from time to
time, reasonably request in order to create, perfect, and preserve the security
interest(s) herein granted. This Deed of Trust shall also constitute a "fixture
filing" for the purposes of the Uniform Commercial Code and shall cover all
items of the Collateral that are or are to become fixtures. Information
concerning the security interest(s) herein granted may be obtained from
Beneficiary upon request.
If an Event of Default shall occur, Beneficiary, in addition
to any other rights and remedies which it may have, shall have and may exercise
immediately and without demand, any and all rights and remedies granted to a
secured party upon default under the Uniform Commercial Code, including, without
limiting the generality of the foregoing, but subject to the rights of Tenant
under the Lease Agreement and the Manager under the Management Agreement, the
right to take possession of the Collateral or any part thereof, and to take such
other measures as Beneficiary may deem necessary for the care, protection and
preservation of the Collateral. Upon request or demand of Beneficiary, Trustor
shall at its expense assemble the Collateral and make it available to
Beneficiary at a convenient place acceptable to Beneficiary. Trustor shall pay
to Beneficiary on demand any and all reasonable expenses, including reasonable
legal expenses and attorneys' fees and disbursements, incurred or paid by
Beneficiary in protecting its interest in the Collateral and in enforcing its
rights hereunder with respect to the Collateral. Any notice of sale, disposition
or other intended action by Beneficiary or Trustee with respect to the
Collateral sent to Trustor in accordance with the provisions hereof at least
five (5) days prior to such action, shall constitute reasonable notice to
Trustor. The proceeds of any disposition of the Collateral, or any part thereof,
may be applied by Beneficiary to the payment of the Indebtedness in such
priority and proportions as Beneficiary in its discretion shall deem proper.
27
Trustor shall notify Beneficiary and Trustee of any change
in name, identity or structure of Trustor and shall promptly execute, file and
record, at its sole cost and expense, such Uniform Commercial Code forms as are
necessary to maintain the priority of the lien of Beneficiary and Trustee upon
and security interest in the Collateral. In addition, Trustor shall promptly
execute, file and record such additional Uniform Commercial Code forms or
continuation statements as Beneficiary or Trustee shall reasonably deem
necessary and shall pay all expenses and fees in connection with the filing and
recording thereof, provided that no such additional documents shall increase the
obligations of Trustor under the Note, this Deed of Trust or the other Loan
Documents. Trustor hereby grants to Beneficiary and Trustee an irrevocable power
of attorney, coupled with an interest, to file with the appropriate public
office on its behalf any financing or other statements signed only by
Beneficiary or Trustee, as secured party, in connection with the Collateral
covered by this Deed of Trust.
28. Authority.
(a) Trustor has full power, authority and legal right
to execute this Deed of Trust, and to mortgage, give, grant, bargain, sell,
alien, enfeoff, convey, confirm, pledge, hypothecate and assign, and grant a
security interest in the Trust Property pursuant to the terms hereof and to keep
and observe all of the terms of this Deed of Trust on Trustor's part to be
performed.
(b) Trustor represents and warrants to Beneficiary
that Trustor is not a "foreign person" and covenants with Beneficiary that
Trustor will not, throughout the term of the Note, become a "foreign person"
within the meaning of ss.1445 and ss.7701 of the Internal Revenue Code of 1986,
(26 USC ss.ss.1445, 7701) and the related Treasury Department regulations,
including, without limitation, temporary regulations (hereinafter collectively
the "Code"); that is, such Trustor is not a non-resident alien, foreign
corporation, foreign partnership, foreign trust or foreign estate as those terms
are defined in the Code.
29. Actions and Proceedings. Beneficiary and Trustee shall
have the right to appear in and defend any action or proceeding brought with
respect to the Trust Property and to bring any action or proceeding, in the name
and on behalf of Trustor, which Beneficiary or Trustee, in their discretion,
shall decide should be brought to protect their interest(s) in the Trust
Property.
30. Waiver of Jury Trial and Counterclaims. TRUSTOR HEREBY
WAIVES THE RIGHT TO ASSERT A COUNTERCLAIM, OTHER THAN A COMPULSORY COUNTERCLAIM,
IN ANY ACTION OR PROCEEDING BROUGHT AGAINST IT BY BENEFICIARY OR TRUSTEE AND,
TO THE EXTENT PERMITTED BY LAW, WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING
BROUGHT BY ANY PARTY HERETO AGAINST THE OTHER, OR IN ANY COUNTERCLAIM ASSERTED
BY BENEFICIARY OR TRUSTEE AGAINST TRUSTOR OR IN ANY MATTERS WHATSOEVER ARISING
OUT OF OR IN ANY
28
WAY CONNECTED WITH THIS DEED OF TRUST, THE NOTE, ANY OTHER LOAN DOCUMENT OR THE
INDEBTEDNESS.
31. Further Acts, Etc. Trustor will, at the sole cost of
Trustor, and without expense to Beneficiary or Trustee, do, execute, acknowledge
and deliver all and every such further acts, deeds, conveyances, mortgages,
assignments, notices of assignments, transfers and assurances as Beneficiary or
Trustee shall, from time to time reasonably require, for the better assuring,
conveying, assigning, transferring, and confirming unto Beneficiary and Trustee
the Trust Property and rights hereby mortgaged, given, granted, bargained, sold,
aliened, enfeoffed, conveyed, confirmed, pledged, assigned and hypothecated or
intended now or hereafter so to be, or which Trustor may be or may hereafter
become bound to convey or assign to Beneficiary and Trustee, or for carrying out
the intention or facilitating the performance of the terms of this Deed of Trust
or for filing, registering or recording this Deed of Trust and, on demand, will
execute and deliver within five (5) business days after request of Beneficiary
or Trustee, and if Trustor fails to so deliver, hereby authorizes Beneficiary
and Trustee thereafter to execute in the name of Trustor without the signature
of Trustor to the extent Beneficiary and Trustee may lawfully do so, one or more
financing statements, chattel mortgages or comparable security instruments, to
evidence more effectively the lien hereof upon the Trust Property. Trustor
grants to Beneficiary and Trustee an irrevocable power of attorney coupled with
an interest for the purpose of exercising and perfecting any and all rights and
remedies available to Beneficiary and Trustee at law and in equity, including
without limitation such rights and remedies available to Beneficiary and Trustee
pursuant to this Paragraph 31.
32. Recording of Deed of Trust, Etc. Trustor forthwith upon
the execution and delivery of this Deed of Trust, will cause this Deed of Trust,
and any security instrument creating a lien or security interest or evidencing
the lien hereof upon the Trust Property, to be filed, registered or recorded,
and thereafter from time to time, each such other instrument of further
assurance to b filed, registered or recorded, all in such manner and in such
places as may be required by any present or future law in order to publish
notice of and fully to protect the lien or security interest hereof upon, and
the interest(s) of Beneficiary and Trustee in, the Trust Property. Trustor will
pay all filing, registration or recording fees, and all expenses incident to the
preparation, execution and acknowledgment of this Deed of Trust, any mortgage
supplemental hereto, any security instrument with respect to the Trust Property
and any instrument of further assurance, and all federal, state, county and
municipal, taxes, duties, imposts, assessments and charges arising out of or in
connection with the making, execution, delivery and/or recording of this Deed of
Trust, any mortgage supplemental hereto, any security instrument with respect to
the Trust Property or any instrument of further assurance, except where
prohibited by law so to do. Trustor shall hold harmless and indemnify
Beneficiary, its successors and assigns, against any liability incurred by
reason of the imposition of any tax on the making, execution, delivery and/or
recording of this Deed of Trust, any mortgage supplemental hereto, any security
instrument with respect to the Trust Property or any instrument of further
assurance.
29
33. Usury Laws. This Deed of Trust and the Note are subject to
the express condition that at no time shall Trustor be obligated or required to
pay interest on the principal balance due under the Note at a rate which could
subject the holder of the Note to either civil or criminal liability as a result
of being in excess of the maximum interest rate which Trustor is permitted by
law to contract or agree to pay. If by the terms of this Deed of Trust or the
Note, Trustor is at any time required or obligated to pay interest on the
principal balance due under the Note at a rate in excess of such maximum rate,
the rate of interest under the Note shall be deemed to be immediately reduced to
such maximum rate and the interest payable shall be computed at such maximum
rate and all prior interest payments in excess of such maximum rate shall be
applied and shall be deemed to have been payments in reduction of the principal
balance of the Note and the principal balance of the Note shall be reduced by
such amount in the inverse order of maturity.
34. Sole Discretion of Beneficiary. Wherever pursuant to this
Deed of Trust, Beneficiary exercises any right given to it to approve or
disapprove, or any arrangement or term is to be satisfactory to Beneficiary, the
decision of Beneficiary to approve or disapprove or to decide that arrangements
or terms are satisfactory or not satisfactory shall be in the sole discretion of
Beneficiary and shall be final and conclusive, except as may be otherwise
specifically provided herein.
35. Recovery of Sums Required To Be Paid. Beneficiary shall
have the right from time to time to take action to recover any sum or sums which
constitute a part of the Indebtedness as the same become due, without regard to
whether or not the balance of the Indebtedness shall be due, and without
prejudice to the right of Beneficiary thereafter to bring an action of
foreclosure, or any other action, for a default or defaults by Trustor existing
at the time such earlier action was commenced.
36. Marshalling and Other Matters. Trustor waives, to the
extent permitted by law, the benefit of all appraisement, valuation, stay,
extension, reinstatement and redemption laws now or hereafter in force and all
rights of marshalling in the event of any sale hereunder of the Trust Property
or any part thereof or any interest therein. Further, Trustor expressly waives
any and all rights of redemption from sale under any order or decree of
foreclosure of this Deed of Trust on behalf of Trustor, and on behalf of each
and every person acquiring any interest in or title to the Trust Property
subsequent to the date of this Deed of Trust and on behalf of all persons to the
extent permitted by applicable law.
37. Waiver of Notice. Trustor shall not be entitled to any
notices of any nature whatsoever from Beneficiary except with respect to matters
for which this Deed of Trust or the other Loan Documents specifically and
expressly provides for the giving of notice by Beneficiary to Trustor and except
with respect to matters for which Beneficiary is required by applicable law to
give notice, and Trustor hereby expressly waives the right to receive any notice
from Beneficiary with respect to any matter for which this Deed of Trust does
not specifically and expressly provide for the giving of notice by Beneficiary
to Trustor.
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38. Remedies of Trustor. In the event that a claim or
adjudication is made that Beneficiary has acted unreasonably or unreasonably
delayed acting in any case where by law or under the Note, this Deed of Trust or
the other Loan Documents, it has an obligation to act reasonably or promptly,
Beneficiary shall not be liable for any monetary damages, and Trustor's remedies
shall be limited to injunctive relief or declaratory judgment.
39. Intentionally Omitted.
40. Intentionally Omitted.
41. Intentionally Omitted.
42. Bankruptcy or Insolvency. In the event that Trustor (a)
admits in writing its inability to pay its debts generally as they become due,
or does not pay its debts generally as they become due, (b) commences as debtor
any case or proceeding under any bankruptcy, insolvency, reorganization,
liquidation, dissolution or similar law, or seeks or consents to the appointment
of a receiver, conservator, trustee, custodian, manager, liquidator or similar
official for it or the whole or any substantial part of its property, (c) has a
receiver, conservator, trustee, custodian, manager, liquidator, or similar
official appointed for it or the whole or any substantial part of its property,
by any governmental authority with jurisdiction to do so, (d) makes a proposal
or any assignment for the benefit of its creditors, or enters into an
arrangement or composition or similar plan or scheme with or for the benefit of
creditors generally occurring in circumstances in which such entity is unable to
meet its obligations as they become due or (e) has filed against it any case or
proceeding under any bankruptcy, insolvency, reorganization, liquidation,
dissolution or similar law which (i) is consented to or not timely contested by
such entity, (ii) results in the entry of an order for relief, appointment of a
receiver, conservator, trustee, custodian, manager, liquidator or similar
official for such entity or the whole or any substantial part of its property or
(iii) is not dismissed within sixty (60) days, an Event of Default shall have
occurred and as a result, the entire principal balance of the Note shall become
immediately due and payable at the option of Beneficiary without notice to
Trustor and Beneficiary may exercise any remedies available to it hereunder,
under any other Loan Document, at law or in equity.
43. Intentionally Omitted.
44. Assignments. Beneficiary shall have the right to assign or
transfer its rights under this Deed of Trust without limitation. Any assignee or
transferee shall be entitled to all the benefits afforded Beneficiary under this
Deed of Trust.
45. Cooperation. Trustor shall, at Beneficiary's expense,
provide such non-proprietary information and documents readily available to
Trustor, which are not subject to any confidentiality agreement on the part of
Trustor and which relate to Trustor, the Trust Property, the Lease Agreement or
the Tenant, as Beneficiary may reasonably request in connection with a sale of
the Loan or an interest therein to an investor. Beneficiary shall have the right
to provide to prospective investors any nonconfidential information in its
possession, including, without limitation, financial statements relating to
Trustor and the Trust Property.
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46. Exculpation. Notwithstanding anything to the contrary
contained herein, any claim based on or in respect of any liability of Trustor
under the Note or under this Deed of Trust or any other Loan Document shall be
enforced only against the Trust Property and an other collateral now or
hereafter given to secure the Loan and not against any other assets, properties
or funds of Trustor; provided, however, that the liability of Trustor for loss,
costs or damage arising out of the following matters shall not be limited solely
to the Trust Property and other collateral now or hereafter given to secure the
Loan but shall include all of the assets, properties and funds of Trustor (i)
any failure by Trustor to apply the income, rents and profits of the Trust
Property as required by the Note, this Deed of Trust or any other Loan Document,
(ii) any misapplication by Trustor of insurance proceeds, condemnation awards,
security deposits or trust funds in violation of applicable law or the
provisions of this Deed of Trust or any other Loan Document, (iii) any
collection of rent for more than one month in advance of the time when the same
becomes due, and (iv) failure to pay all real estate taxes and assessments prior
to the date on which such payments become delinquent. Nothing herein shall be
deemed (w) to be a waiver of any right which Beneficiary may have under any
bankruptcy law of the United States or the State in which the Trust Property is
located to file a claim for the full amount of the Loan or to require that all
of the collateral securing the Loan shall continue to secure all of the
indebtedness due under the Note, this Deed of Trust and the other Loan
Documents; (x) to impair the validity of the indebtedness secured by this Deed
of Trust; (y) to impair the right of Beneficiary as Beneficiary or secured party
to commence an action to foreclose any lien or security interest; or (z) to
modify, diminish or discharge the liability of any guarantor under any guaranty.
Nothing herein shall be deemed to be a waiver of any right which Beneficiary may
have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S.
Bankruptcy Code to file a claim for the full amount of the indebtedness secured
by this Deed of Trust or to require that all collateral shall continue to secure
all of the indebtedness owing to Beneficiary in accordance with the Loan
Documents.
47. Notices. Any notice, demand, statement, request or consent
made hereunder shall be effective and valid only if in writing, referring to
this Deed of Trust, signed by the party giving such notice, and delivered either
personally to such other party, or sent by nationally recognized overnight
courier delivery service or by certified mail of the United States Postal
Service, postage prepaid, return receipt requested, addressed to the other party
as follows (or to such other address or person as either party or person
entitled to notice may by notice to the other party specify):
To Beneficiary:
The Chase Manhattan Bank
c/o AMRESCO Management, Inc.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxx, XX 00000
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and with a copy concurrently to:
Cadwalader, Xxxxxxxxxx & Xxxx
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx Xxxxxx
To Trustor:
c/o Hospitality Properties Trust
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xx. Xxxxxx X. X'Xxxxx
and with a copy concurrently to:
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxxxxx, Xx., Esq.
To Trustee:
Chicago Title Insurance Company
_______________________________
_______________________________
_______________________________
Attention: ___________________
Unless otherwise specified, notices shall be deemed given upon receipt or
refusal thereof.
48. Non-Waiver. The failure of Beneficiary to insist upon
strict performance of any term hereof shall not be deemed to be a waiver of any
term of this Deed of Trust. Trustor shall not be relieved of Trustor's
obligations hereunder by reason of (a) failure of Beneficiary to comply with any
request of Trustor to take any action to foreclose this Deed of Trust or
otherwise enforce any of the provisions hereof or of the Note or the other Loan
Documents, (b) the release, regardless of consideration, of the whole or any
part of the Trust Property, or of any person liable for the Indebtedness or
portion thereof or (c) any agreement or stipulation by Beneficiary extending the
time of payment or otherwise modifying or supplementing the terms of the Note,
this Deed of Trust or the other Loan Documents. Beneficiary may resort for the
payment of the Indebtedness to any other security held by Beneficiary in such
order and manner as Beneficiary, in its discretion, may elect. Beneficiary may
take action to recover the Indebtedness, or any portion thereof, or to enforce
any covenant hereof without prejudice to the right of Beneficiary thereafter to
foreclose this Deed of Trust. The rights of Beneficiary under this Deed of Trust
shall be separate, distinct and cumulative and
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none shall be given effect to the exclusion of the others. No act of Beneficiary
shall be construed as an election to proceed under any one provision herein to
the exclusion of any other provision. Beneficiary shall not be limited
exclusively to the rights and remedies herein stated but shall be entitled to
every right and remedy now or hereafter afforded by law.
49. Joint and Several Liability. If there is more than one
party comprising Trustor, then the obligations and liabilities of each party
under this Deed of Trust shall be joint and several.
50. Severability. If any term, covenant or condition of the
Note or this Deed of Trust is held to be invalid, illegal or unenforceable in
any respect, the Note and this Deed of Trust shall be construed without such
provision.
51. Duplicate Originals. This Deed of Trust may be executed in
any number of duplicate originals and each such duplicate original shall be
deemed to constitute but one and the same instrument.
52. Indemnity and Beneficiary's Costs. Trustor agrees to pay
all reasonable costs, including, without limitation, reasonable attorneys' fees
and expenses, incurred by Beneficiary or Trustee in enforcing the terms hereof
and/or the terms of any of the other Loan Documents or the Note, or whether or
not suit is filed and waives to the full extent permitted by law all right to
plead any statute of limitations as a defense to any action hereunder. Trustor
agrees to indemnify and hold Beneficiary and Trustee harmless from any and all
liability, loss, damage or expense (including, without limitation, attorneys'
fees and disbursements) that Beneficiary or Trustee may or might incur hereunder
or in connection with the enforcement of any of their rights or remedies
hereunder, any action taken by Beneficiary or Trustee hereunder, or by reason or
in defense of any and all claims and demands whatsoever that may be asserted
against Beneficiary or Trustee arising out of the Trust Property; and should
Beneficiary or Trustee incur any such liability, loss, damage or expense, the
amount thereof with interest thereon at the Default Rate shall be payable by
Trustor immediately without demand, shall be secured by this Deed of Trust, and
shall be a part of the Indebtedness.
53. Certain Definitions. Unless the context clearly indicates
a contrary intent or unless otherwise specifically provided herein, words used
in this Deed of Trust shall be used interchangeably in singular or plural form.
The word "Trustor" shall mean Trustor and/or any subsequent owner or owners of
the Trust Property or any part thereof or interest therein. The word
"Beneficiary" shall mean Beneficiary or any subsequent holder of the Note. The
word "Trustee" shall mean Trustee and any successor or substitute Trustee. The
word "Note" shall mean the Note or any other evidence of indebtedness secured by
this Deed of Trust. The words "Loan Documents" shall mean the Note, this Deed of
Trust, the Loan Agreement, the Lockbox Security Agreement, the security
agreement, if any, between Trustor and Beneficiary, the assignment of leases and
rents made by Trustor to Beneficiary, the assignment of contracts, if any, made
by Trustor to Beneficiary, all other mortgages, deeds of trust, and deeds to
secure debt securing the Note and entered into by Trustor or HPTWN in
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favor of, or for the benefit of, Beneficiary (collectively, the "Other
Mortgages"), and any other agreement, instrument, affidavit or document executed
by Trustor and delivered to Beneficiary in connection with the Loan. The word
"person" shall include an individual, corporation, partnership, trust,
unincorporated association, government, governmental authority, or other entity.
The words "Trust Property" shall include any portion of the Trust Property or
interest therein. Whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns and pronouns shall include the plural and vice versa.
54. No Oral Change. This Deed of Trust, and any provisions
hereof, may not be modified, amended, waived, extended, changed, discharged or
terminated orally or by any act or failure to act on the part of Trustor or any
one Trustor or Beneficiary, but only by an agreement in writing signed by the
party against whom enforcement of any modification, amendment, waiver,
extension, change, discharge or termination is sought.
55. Headings, Etc. The headings and captions of various
paragraphs of this Deed of Trust are for convenience of reference only and are
not to be construed as defining or limiting, in any way, the scope or intent of
the provisions hereof.
56. Address of Trust Property. The street address of the
Property is as follows: _____________________________________.
57. Wire Transfer. All payments of principal and interest and
other amounts d e under this Deed of Trust shall be paid to Beneficiary by wire
transfer of immediately available funds to such bank or place, or in such
manner, as Beneficiary may from time to time designate.
58. Publicity. Trustor agrees that Beneficiary, at its
expense, may publicize the financing of the Trust Property in trade and similar
publications.
59. Relationship. The relationship of Beneficiary to Trustor
under this Deed of Trust is strictly and solely that of lender and borrower and
nothing contained in this Deed of Trust or any other Loan Document is intended
to create, or shall in any event or under any circumstance be construed to
create, a partnership, joint venture, tenancy-in-common, joint tenancy or other
relationship of any nature whatsoever between Beneficiary and Trustor other than
that of lender and borrower.
60. Homestead. Trustor hereby waives and renounces all
homestead and exemption rights provided by the constitution and the laws of the
United States and of any state, in and to the Land as against the collection of
the Indebtedness, or any part hereof.
61. No Third Party Beneficiaries. Nothing contained herein is
intended or shall be deemed to create or confer any rights upon any third person
not a party hereto, whether as a third- party beneficiary or otherwise, except
as expressly provided herein.
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62. Entire Agreement. This Deed of Trust, the Note and the
other Loan Documents constitute the entire agreement among Trustor and
Beneficiary with respect to the subject matter hereof and all understandings,
oral representations and agreements heretofore or simultaneously had among the
parties are merged in, and are contained in, such documents and instruments.
63. Servicer. Beneficiary may from time to time appoint a
servicer (the "Servicer") to administer the Loan, which Servicer shall have the
power and authority to exercise all of the rights and remedies of Beneficiary
and to act as agent of Beneficiary hereunder and under the other Loan Documents.
64. Governing Law; Consent to Jurisdiction. THIS DEED OF TRUST
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE IN
WHICH THE TRUST PROPERTY IS LOCATED WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS
THEREOF. TRUSTOR HEREBY SUBMITS TO PERSONAL JURISDICTION IN SAID STATE AND THE
FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN SAID STATE (AND ANY
APPELLATE COURTS TAKING APPEALS THEREFROM) FOR THE ENFORCEMENT OF TRUSTOR'S
OBLIGATIONS HEREUNDER AND UNDER THE NOTE AND THE OTHER LOAN DOCUMENTS, AND
WAIVES ANY AND ALL PERSONAL RIGHTS UNDER THE LAW OF ANY OTHER STATE TO OBJECT TO
JURISDICTION WITHIN SUCH STATE FOR THE PURPOSES OF SUCH ACTION, SUIT, PROCEEDING
OR LITIGATION TO ENFORCE SUCH OBLIGATIONS OF TRUSTOR. TRUSTOR HEREBY WAIVES AND
AGREES NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS DEED OF TRUST, THE NOTE OR ANY OTHER LOAN DOCUMENT, (A)
THAT IT IS NOT SUBJECT TO SUCH JURISDICTION OR THAT SUCH ACTION, SUIT OR
PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN THOSE COURTS OR THAT
THIS DEED OF TRUST, THE NOTE AND/OR ANY OF THE OTHER LOAN DOCUMENTS MAY NOT BE
ENFORCED IN OR BY THOSE COURTS OR THAT IT IS EXEMPT OR IMMUNE FROM EXECUTION,
(B) THAT THE ACTION, SUIT OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR
(C) THAT THE VENUE OF THE ACTION, SUIT OR PROCEEDING IS IMPROPER. IN THE EVENT
ANY SUCH ACTION, SUIT, PROCEEDING OR LITIGATION IS COMMENCED, TRUSTOR AGREES
THAT SERVICE OF PROCESS MAY BE MADE, AND PERSONAL JURISDICTION OVER TRUSTOR
OBTAINED, BY SERVICE OF A COPY OF THE SUMMONS, COMPLAINT AND OTHER PLEADINGS
REQUIRED TO COMMENCE SUCH LITIGATION UPON TRUSTOR AT TRUSTOR'S ADDRESS FOR
NOTICES.
65. Certain Hotel Covenants. Trustor fur her covenants and
agrees with Beneficiary as follows:
(a) Trustor shall enforce, in a timely and commercially
reasonable manner, its rights under the Lease Agreement and the Management
Agreement and
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(b) Trustor shall promptly provide Beneficiary with a copy of
all notices (i) provided by Trustor to Tenant, or by Tenant to Trustor, pursuant
to and in compliance with the "notices" provision of the Lease Agreement, and
(ii) provided by Trustor to Manager, or by Manager to Trustor, pursuant to and
in compliance with the "notices" provision of the Management Agreement.
66. Title Acts by Trustee. At any time upon written request of
Beneficiary, payment of its fees and presentation of this Deed of Trust and the
Note for endorsement (in case of full reconveyance, for cancellation and
retention), without affecting the liability of any person for the payment of the
Indebtedness, Trustee shall (a) consent to the making of any map or plat of the
Trust Property, (b) join in granting any easement or creating any restriction
thereon, (c) join in any subordination or other agreement affecting this Deed of
Trust or the lien or charge thereof or (d) reconvey, without warranty, all or
any part of the Trust Property. The Trustee in any reconveyance may be described
as the "person or persons legally entitled thereto," and the recitals therein of
any matters or facts shall be conclusive proof of the truthfulness thereof.
Trustor agrees to pay a reasonable Trustee's fee for full or partial
reconveyance, together with a recording fee if Trustee, at its option, elects to
record said reconveyance.
67. Successor Trustee. At the option of Beneficiary, with or
without any reason, a successor or substitute trustee may be appointed by
Beneficiary without any formality other than a designation in writing of a
successor or substitute trustee, who shall thereupon become vested with an
succeed to all the powers and duties given to Trustee herein named, the same as
if the successor or substitute trustee had been named original Trustee herein;
and such right to appoint a successor or substitute trustee shall exist as often
and whenever Beneficiary desires.
68. Authorization Regarding Trustee. Trustee (and any
successor or substitute trustee) may act hereunder and may sell and convey the
Trust Property, or any part thereof, although the Trustee (or successor or
substitute trustee) has been, may now be, or is hereafter the attorney or agent
of Beneficiary with respect to the Loan, or with respect to any other matter or
business whatsoever.
PART II - STATE SPECIFIC PROVISIONS
In the event of any inconsistencies between the terms and conditions of
Part I and Part II of this Deed of Trust, the terms of Part II shall control and
be binding.
[Signature Page Follows]
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IN WITNESS WHEREOF, Trustor has duly executed and delivered
this Deed of Trust as of the day and year first above written.
TRUSTOR:
HPTRI CORPORATION, a Delaware corporation
By:
Name: Xxxxxx X. X'Xxxxx
Title: Vice President
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