EXHIBIT 4.3
PREPARED BY
AND WHEN RECORDED
RETURN TO:
Sidley Xxxxxx Xxxxx & Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxx X. Xxxx, Esq.
DEED OF TRUST, ASSIGNMENT OF LEASES
AND RENTS, SECURITY
AGREEMENT AND FIXTURE FILING
THIS DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT
AND FIXTURE FILING (as the same may be amended, restated, extended, supplemented
or otherwise modified from time to time, this "Deed of Trust"), is made as of
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the 12th day of December, 2001, by VENTAS FINANCE I, LLC, a Delaware limited
liability company, having an address c/o Ventas, Inc., 0000 Xxxxxxxxxx Xxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000-0000 ("Trustor"), to FIRST AMERICAN TITLE
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INSURANCE COMPANY, a California corporation, having an address at 0 Xxxxx
Xxxxxxxx Xxx, Xxxxx Xxx, Xxxxxxxxxx 00000 (the "Trustee"), for the benefit of
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XXXXXXX XXXXX MORTGAGE LENDING, INC., a Delaware corporation, having an address
at c/o Merrill Xxxxx & Co., Four World Financial Center, 000 Xxxxx Xxxxxx, Xxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (together with its successors and assigns, the
"Beneficiary"). Capitalized terms used herein but not otherwise defined shall
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have the respective meanings assigned to such terms in the Loan Agreement
(hereinafter defined).
W I T N E S S E T H:
To secure the payment of a loan (the "Loan") in the original principal
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sum of TWO HUNDRED TWENTY-FIVE MILLION AND 00/100 DOLLARS ($225,000,000), lawful
money of the United States of America, being made from Beneficiary to Trustor on
the date hereof pursuant to the terms and conditions of a certain Loan and
Security Agreement, dated as of the date hereof (as amended, modified or
restated, the "Loan Agreement"), between Trustor and Beneficiary, which Loan is
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evidenced by and is to be paid with interest according to a certain Promissory
Note, dated as of the date hereof (as amended, modified, renewed or restated and
together with any substitutes or replacements therefor, the "Note"), made by
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Trustor to Beneficiary and all other sums due hereunder, or otherwise due under
the Loan Documents (as defined in the Loan Agreement) (the principal amount of
the Loan, together with interest thereon and all sums due hereunder and under
the Loan Agreement, the Note and the other Loan Documents being collectively
called the "Debt"), and all of the agreements, covenants, conditions,
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warranties, representations and other obligations (other than to repay the Debt)
made or undertaken by Trustor or any other person or entity to Beneficiary or
others as set forth in the
Loan Documents (collectively, the "Obligations"), Trustor has given, granted,
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bargained, sold, alienated, enfeoffed, conveyed, confirmed, pledged and assigned
and by these presents does hereby give, grant, bargain, sell, alien, enfeoff,
convey, confirm, pledge and assign unto Trustee, in trust, for the benefit of
Beneficiary with power of sale and right of entry and possession, and with
mortgage covenants, all of Trustor's right, title, interest and estate in and to
the real property described on Exhibit A attached hereto (the "Premises") and
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the buildings, structures, fixtures, additions, enlargements, extensions,
modifications, repairs, replacements and improvements now or hereafter located
thereon (the "Improvements");
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TOGETHER WITH: all right, title, interest and estate of Trustor now
owned, or hereafter acquired, in and to the following property, rights,
interests and estates (the Premises, the Improvements together with the
following property, rights, interests and estates being hereinafter described
are collectively referred to herein as the "Mortgaged Property"):
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(a) all easements, rights-of-way, strips and gores of land, streets,
ways, alleys, passages, sewer rights, water, water courses, water rights and
powers, air rights and development 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
Premises and the Improvements 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 Premises, to the center line thereof
and all the estates, rights, titles, interests, dower and rights of dower,
courtesy and rights of courtesy, property, possession, claim and demand
whatsoever, both at law and in equity, of Trustor of, in and to the Premises and
the Improvements and every part and parcel thereof, with the appurtenances
thereto;
(b) all machinery, equipment, fixtures (including, but not limited to,
all heating, air conditioning, plumbing, lighting, communications and elevator
fixtures) and other property of every kind and nature, whether tangible or
intangible, whatsoever owned by Trustor, or in which Trustor has or shall have
an interest, now or hereafter located upon the Premises and the Improvements, or
appurtenant thereto, and usable in connection with the present or future
operation and occupancy of the Premises and the Improvements and all building
equipment, materials and supplies of any nature whatsoever owned by Trustor, or
in which Trustor has or shall have an interest, now or hereafter located upon
the Premises and the Improvements, or appurtenant thereto, and usable in
connection with the present or future operation, enjoyment and occupancy of the
Premises and the Improvements (hereinafter collectively called the "Equipment"),
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including the proceeds of any sale or transfer of the foregoing, and the right,
title and interest of Trustor in and to any of the Equipment which may be
subject to any security interests, as defined in the Uniform Commercial Code, as
adopted and enacted by the state or states where any of the Mortgaged Property
is located (the "Uniform Commercial Code") superior in lien to the lien of this
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Deed of Trust;
(c) all awards or payments, including interest thereon, which may
heretofore and hereafter be made with respect to the Mortgaged Property, whether
from the exercise of the right of eminent domain or condemnation (including, but
not limited to, any transfer made in lieu of or in anticipation of the exercise
of said rights), or for a change of grade, or for any other injury to or
decrease in the value of the Mortgaged Property;
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(d) that certain Master Lease Agreement dated as of the date hereof (as
amended, modified or restated, the "Master Lease") between Trustor
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(successor-in-interest to Ventas Realty, Limited Partnership), as landlord, and
Kindred Healthcare, Inc. and Kindred Healthcare Operating, Inc., collectively,
as tenant ("Lessee"), and any and all right, title and interest of Trustor in
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and to all other leases, tenancies, licenses, subleases, assignments and/or
other rental or occupancy agreements (including, without limitation, any and all
guarantees of any of the foregoing) heretofore or hereafter entered into
affecting the use, enjoyment or occupancy of the Premises and the Improvements,
including any extensions, renewals, modifications or amendments thereof
(collectively, the "Leases") and all rents, rent equivalents (including room
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revenues, if applicable), moneys payable as damages or in lieu of rent or rent
equivalents, royalties (including, without limitation, all oil and gas or other
mineral royalties and bonuses), income, receivables, receipts, revenues,
deposits (including, without limitation, security, utility and other deposits),
accounts, cash, issues, profits, charges for services rendered, and other
consideration of whatever form or nature received by or paid to or for the
account of or benefit of Trustor or its agents or employees from any and all
sources arising from or attributable to the Premises and the Improvements (the
"Rents"), together with all proceeds from the sale or other disposition of the
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Leases and the right to receive and apply the Rents to the payment of the Debt;
(e) all proceeds of and any unearned premiums on any insurance policies
covering the Mortgaged Property, 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 Mortgaged Property or any part thereof;
(f) the right, following an Event of Default, in the name and on behalf
of Trustor, to appear in and defend any action or proceeding brought with
respect to the Mortgaged Property and to commence any action or proceeding to
protect the interest of the Beneficiary in the Mortgaged Property or any part
thereof;
(g) all accounts, escrows, reserves, documents, instruments, chattel
paper, claims, deposits and general intangibles, as the foregoing terms are
defined in the Uniform Commercial Code, and all books, records, plans,
specifications, designs, drawings, permits, consents, licenses, franchises,
management agreements, contracts, contract rights (including, without
limitation, any contract with any architect or engineer or with any other
provider of goods or services for or in connection with any construction,
repair, or other work upon the Mortgaged Property), approvals, actions, refunds
of real estate taxes and assessments (and any other governmental impositions
related to the Mortgaged Property), and causes of action that now or hereafter
relate to, are derived from or are used in connection with the Mortgaged
Property, or the use, operation, management, improvement, alteration, repair,
maintenance, occupancy or enjoyment thereof or the conduct of any business or
activities thereon;
(h) any and all proceeds and products of any of the foregoing and any
and all other security and collateral of any nature whatsoever, now or hereafter
given for the repayment of the Debt and the performance of Trustor's obligations
under the Loan Documents, including (without limitation) the Impositions and
Insurance Reserve, the Replacement Reserve, the Debt Service Reserve, the
Hazardous Materials Remediation Reserve, the Deferred Maintenance Reserve, the
Loss Proceeds Account, the Central Account and the Sub-Accounts thereof (each as
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defined in the Cash Management Agreement, dated as of the date hereof (as
amended or modified the "Cash Management Agreement"), by and between Trustor,
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Beneficiary, and First Union National Bank) and any other escrows or reserves
set forth in the Loan Documents;
(i) all accounts receivable, contract rights, interests, estate or
other claims, both in law and in equity, which Trustor now has or may hereafter
acquire in the Mortgaged Property or any part thereof; and
(j) 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 Mortgaged Property or any part thereof.
TO HAVE AND TO HOLD the above granted and described Mortgaged Property
unto and to the Trustee, for the use and benefit of Beneficiary, and the
successors and assigns of Beneficiary forever;
PROVIDED, HOWEVER, these presents are upon the express condition that,
if Trustor shall well and truly pay to Beneficiary the Debt 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
and in the Note in a timely manner, these presents and the estate hereby granted
shall cease, terminate and be void;
AND Trustor represents and warrants to and covenants and agrees with
Beneficiary as follows:
1. Payment of Debt and Incorporation of Covenants, Conditions and
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Agreements. Trustor shall pay the Debt at the time and in the manner provided in
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the Note, the Loan Agreement and this Deed of Trust. Trustor will duly and
punctually perform all of the covenants, conditions and agreements of Trustor
contained in the Note, the Loan Agreement, this Deed of Trust and the other Loan
Documents all of which covenants, conditions and agreements 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 warrants that Trustor has good,
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marketable and insurable title to the Mortgaged Property and has the right to
give, grant, bargain, sell, alien, enfeoff, convey, confirm, pledge, assign and
hypothecate the same and that Trustor possesses a fee estate in the Premises and
the Improvements and that it owns the Mortgaged Property free and clear of all
liens, encumbrances and charges whatsoever except for the Permitted
Encumbrances. Trustor represents and warrants that none of the Permitted
Encumbrances will materially and adversely affect (i) Trustor's ability to pay
in full in a timely manner its obligations, including, without limitation, the
Debt, (ii) the use of the Mortgaged Property for the use currently being made
thereof, (iii) the operation of the Mortgaged Property, or (iv) the value of the
Mortgaged Property. Trustor shall forever warrant, defend and preserve such
title and the validity and priority of the lien of this Deed of Trust, subject
to the Permitted Encumbrances, and
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shall forever warrant and defend the same to Beneficiary against the claims of
all persons whomsoever.
3. Insurance. (a) Trustor, at its sole cost and expense, shall maintain
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or cause to be maintained insurance with respect to the Mortgaged Property for
the mutual benefit of Trustor and Beneficiary as required by Section 5.4 of the
Loan Agreement.
(b) If the Mortgaged Property shall be damaged or destroyed, in
whole or in part, by fire or other casualty (an "Insured Casualty"), Trustor
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shall give notice thereof to Beneficiary and to the insurance carrier as and to
the extent required by Section 5.5 of the Loan Agreement. Subject to the terms
of the Loan Agreement, Trustor shall promptly repair, replace or rebuild, or
cause Lessee to promptly repair, replace or rebuild, the Mortgaged Property in
accordance with, and all amounts paid with respect to such Insured Casualty
under all insurance policies maintained by Trustor shall be governed by, the
terms and conditions of Section 5.5 of the Loan Agreement. The expenses incurred
by Beneficiary in the adjustment and collection of insurance proceeds shall
become part of the Debt and shall be secured hereby and shall be reimbursed by
Trustor to Beneficiary upon demand.
4. Payment of Impositions and Other Charges. Subject to Trustor's right
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to contest set forth in Section 5.3 (B) of the Loan Agreement and the provisions
of Section 5 below, and pursuant to the provisions of the Cash Management
Agreement, Trustor shall cause to be paid all Impositions now or hereafter
levied or assessed or imposed against the Mortgaged Property or any part thereof
as the same become due and payable. Subject to Trustor's contest rights set
forth in Section 5.3(B) of the Loan Agreement, Trustor shall promptly pay, or
cause to be promptly paid, all utility services provided to the Mortgaged
Property. Subject to Trustor's contest rights set forth in Section 5.3(B) of the
Loan Agreement, Trustor shall furnish to Beneficiary or its designee receipts
for the payment of the Impositions or other evidence of the payment of the
Impositions prior to the date the same shall become delinquent (provided,
however, that Trustor shall not be required to furnish such receipts or such
other evidence for payment of Impositions in the event that such Impositions
have been paid by Beneficiary pursuant to Section 5 hereof).
5. Impositions and Insurance Reserve. Trustor shall make monthly
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deposits into the Impositions and Insurance Reserve of amounts sufficient to pay
Impositions and Insurance Premiums in accordance with the terms of Section 6.3
of the Loan Agreement and the Cash Management Agreement.
6. Condemnation. (a) Trustor shall promptly after obtaining knowledge
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(as defined in the Loan Agreement) thereof give Beneficiary written notice of
the actual or threatened commencement of any condemnation or eminent domain
proceeding affecting the Mortgaged Property or any portion thereof and shall
deliver to Beneficiary copies of any and all papers served in connection with
such proceedings. Subject to the terms of Section 6(b) below, Beneficiary is
hereby irrevocably appointed as Trustor's attorney-in-fact, coupled with an
interest, with exclusive power to collect, receive and retain any award or
payment for said condemnation or eminent domain and to make any compromise or
settlement in connection with such proceeding, subject to the provisions of this
Deed of Trust. Notwithstanding any taking by
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any public or quasi public authority through eminent domain or otherwise
(including but not limited to any transfer made in lieu of or in anticipation of
the exercise of such taking), Trustor shall continue to pay the Debt at the time
and in the manner provided for its payment in the Note, in this Deed of Trust
and the other Loan Documents and the Debt shall not be reduced until any award
or payment therefor shall have been actually received after expenses of
collection and applied by Beneficiary to the discharge of the Debt in accordance
with the terms hereof. In accordance with the terms hereof, Trustor shall cause
the award or payment made in any condemnation or eminent domain proceeding,
which is payable to Trustor, to be paid directly to Beneficiary. Beneficiary may
apply any such award or payment to the reduction or discharge of the Debt
whether or not then due and payable; such application to be made without any
Prepayment Consideration, provided that such payment is made within one hundred
twenty (120) days following the date of receipt of such condemnation award
except that if an Event of Default has occurred and is continuing, then such
application shall be subject to the Prepayment Consideration, if any, computed
in accordance with the Note. If the Mortgaged Property is sold following an
Event of Default, through foreclosure or otherwise, prior to the receipt by
Beneficiary of such award or payment, Beneficiary shall have the right, whether
or not a deficiency judgment on the Note shall have been sought, recovered or
denied, to receive said award or payment, or a portion thereof sufficient to pay
the Debt.
(b) Notwithstanding the foregoing, Beneficiary shall not
exercise the foregoing rights to apply any such award as payment in any
condemnation or eminent domain proceeding to payment of the Debt and Trustor may
prosecute any condemnation proceeding and settle or compromise and collect any
claim involving an award and/or claim for damages of not more than the
Restoration Threshold provided that: (i) in Beneficiary's reasonable judgment,
such condemnation or taking does not and will not materially restrict access to
the Mortgaged Property or otherwise have a Material Adverse Effect, and the
Mortgaged Property remaining after such condemnation or taking is capable of
being restored to an economically viable whole of the same type which existed
prior to the condemnation or taking and in compliance with all applicable laws,
(ii) Trustor applies, or causes to be applied, the proceeds of such award to any
reconstruction or repair of the Mortgaged Property necessary as a result of such
condemnation or taking, (iii) Trustor promptly commences and diligently
prosecutes, or causes to be promptly commenced and diligently prosecuted, such
reconstruction or repair to completion in accordance with all applicable laws,
(iv) at Beneficiary's request, such reconstruction or repair shall be performed
under the supervision of an architect or engineer reasonably acceptable to
Beneficiary and the plans and specifications for such work shall be subject to
Beneficiary's reasonable approval and (v) each of the other conditions (as
applicable) to release of insurance proceeds for restoration or repair of the
Mortgaged Property under Section 5.5(B)-(F) of the Loan Agreement have been
satisfied. Trustor authorizes Beneficiary to apply such awards, payments,
proceeds or damages, after the deduction of Beneficiary's reasonable expenses
incurred in the collection of such amounts, at Beneficiary's option, to
restoration or repair of the Mortgaged Property or to payment of the sums
secured by this Deed of Trust, whether or not then due, in the order determined
by Beneficiary, with the balance, if any, to Trustor. In the event that
Beneficiary shall apply any such awards, payments, proceeds or damages to the
indebtedness secured hereby pursuant to the foregoing sentence, no Prepayment
Consideration or other prepayment premium or penalty shall be due and payable
under the Note in connection therewith. Subject to
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satisfaction of the conditions set forth in clauses (i) through (v) of this
Section 6(b), Beneficiary shall not exercise Beneficiary's option to apply such
awards or damages to payment of the sums secured by this Deed of Trust and
Beneficiary shall make such awards or damages available to Trustor for
restoration or repair of the Mortgaged Property upon the terms and subject to
the conditions for release of insurance proceeds for restoration or repair of
the Mortgaged Property under Sections 5.5(B)-(F) of the Loan Agreement. Any
application of proceeds to principal shall not extend or postpone the due date
of the monthly installments due hereunder, under the Note or under any of the
Loan Documents or change the amount of such installments. Trustor agrees to
execute such further evidence of assignment of any awards, proceeds, damages or
claims arising in connection with such condemnation or taking as Beneficiary may
reasonably require.
7. Maintenance of Mortgaged Property. Trustor shall cause the
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Mortgaged Property to be operated and maintained in all material respects in a
good and safe condition and repair and in keeping with the condition and repair
of properties of a similar use, value, age, nature and construction. The
Improvements and the Equipment shall not be removed or demolished in any
material respect by Trustor and no Material Alterations shall be made thereto
(except for normal replacement or disposal of the Equipment and except as
otherwise expressly permitted in the Loan Agreement ) without the consent of
Beneficiary, which consent shall not be unreasonably withheld, delayed or
conditioned. Trustor shall comply in all material respects with all laws, orders
and ordinances affecting the Mortgaged Property, or the use thereof, in each
case, as and to the extent required by the Loan Agreement.
8. Use of Mortgaged Property. Trustor shall not initiate, join in,
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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 Mortgaged Property or any part thereof, nor shall
Trustor initiate, join in, acquiesce in, or consent to any zoning change or
zoning matter affecting the Mortgaged Property, which in any of the foregoing
cases could reasonably be expected to result in a Material Adverse Effect. If
under applicable zoning provisions the use of all or any material portion of the
Mortgaged Property is or shall become a nonconforming use, Trustor will not
cause such nonconforming use to be discontinued or abandoned, and will use
reasonable efforts to enforce any rights Trustor has under the Master Lease not
to permit Lessee to discontinue or abandon any such nonconforming use, in each
case, except with the express written consent of Beneficiary, which consent
shall not be unreasonably withheld, delayed or conditioned. Trustor shall not
cause any waste on or to the Mortgaged Property or to any portion thereof and
will use reasonable efforts to prevent Lessee from causing or suffering to occur
any such waste. Trustor shall not take any steps whatsoever to convert the
Mortgaged Property, or any portion thereof, to a condominium or cooperative form
of management. Trustor will not install on the Premises any underground storage
tank or above-ground storage tank in violation of the Environmental Laws and
will use reasonable efforts to enforce any rights Trustor has under the Master
Lease to prevent Lessee from installing or permitting to be installed on the
Premises any underground storage tank or any above-ground storage tank in
violation of the Environmental Laws.
9. Transfer or Encumbrance of the Mortgaged Property. (a) Trustor
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acknowledges that Beneficiary has examined and relied on the creditworthiness
and experience of Trustor in owning and operating properties such as the
Mortgaged Property in agreeing to make the Loan,
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and that Beneficiary will continue to rely on Trustor's ownership of the
Mortgaged Property as a means of maintaining the value of the Mortgaged Property
as security for repayment of the Debt. Except as expressly permitted under this
Deed of Trust, the Loan Agreement or under the other Loan Documents, Trustor
shall not cause or suffer to occur or exist, directly or indirectly, voluntarily
or involuntarily, by operation of law or otherwise, any sale, transfer,
mortgage, pledge, lien or encumbrance (other than Permitted Encumbrances)
(collectively, "Transfers") of (i) all or any part of the Mortgaged Property or
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any interest of Trustor therein, or (ii) any direct or indirect beneficial
ownership interest (in whole or in part) in Trustor, irrespective of the number
of tiers of ownership, without the prior written consent of Beneficiary.
(b) Notwithstanding the foregoing, Trustor may, without the
consent of Beneficiary, (i) make immaterial transfers of portions of the
Mortgaged Property to any federal, state or local government or any political
subdivision thereof (collectively, "Governmental Authorities") for dedication or
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public use (subject to the provisions of Section 6 hereof) and (ii) grant
easements, restrictions, covenants, reservations and rights of way in the
ordinary course of business for access, water and sewer lines, telephone,
cellular, cable, internet and telegraph lines, electric lines or other utilities
or for other similar purposes, provided that no such transfer or conveyance set
forth in the foregoing clauses (i) and (ii) shall have a Property Adverse
Effect; provided, however, that Trustor shall give Beneficiary at least ten (10)
days' prior written notice of any such transfer or conveyance describing same in
reasonable detail and certifying that such transfer or conveyance satisfies the
foregoing conditions. Upon the request of Trustor, and at Trustor's sole cost
and expense, Beneficiary shall release its lien with respect to any portion of
the Mortgaged Property that is transferred as provided in clause (i) above and
subordinate this Deed of Trust to any transfer or conveyance permitted pursuant
to clause (ii) above.
(c) The occurrence of any Transfer in violation of Section
9(a) above shall constitute an Event of Default hereunder, whereupon Beneficiary
at its option, without being required to demonstrate any actual impairment of
its security or any increased risk of default hereunder, may declare the Debt
immediately due and payable.
(d) Beneficiary's consent to any Transfer of the Mortgaged
Property or any interest in Trustor shall not be deemed to be a waiver of
Beneficiary's right to require such consent to any future occurrence of same.
Any attempted or purported Transfer of the Mortgaged Property or of any direct
or indirect interest in Trustor, if made in contravention of this Section 9,
shall be null and void and of no force and effect.
10. Taxes on Security; Documentary Stamps; Intangibles Tax. (a)
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Trustor shall pay all taxes, charges, filing, registration and recording fees,
excises and levies payable with respect to the Note, this Deed of Trust or the
liens created or secured by the Loan Documents, other than income, franchise and
doing business and other similar taxes imposed on Beneficiary. If there shall be
enacted any law (i) deducting the Loan from the value of the Mortgaged Property
for the purpose of taxation, (ii) affecting any lien on the Mortgaged Property,
or (iii) changing existing laws of taxation of mortgages, deeds of trust,
security deeds, or debts secured by real property, or changing the manner of
collecting any such taxes, Trustor shall promptly pay to Beneficiary, on demand,
all taxes, costs and charges for which Beneficiary is or may be liable as a
result thereof; however, if such payment would be prohibited by law or would
render the Loan usurious, then
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instead of collecting such payment, Beneficiary may declare all amounts owing
under the Loan Documents to be immediately due and payable.
(b) 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. Trustor hereby agrees that, in the event that it is
determined that additional documentary stamp tax or intangible tax is due hereon
or any deed of trust or promissory note executed in connection herewith
(including, without limitation, the Note), Trustor shall indemnify and hold
harmless Beneficiary for all such documentary stamp tax and/or intangible tax,
including all penalties and interest assessed or charged in connection
therewith. Trustor shall pay same within ten (10) days after demand of payment
from Beneficiary and the payment of such sums shall be secured by this Deed of
Trust and such sums shall bear interest at the Default Rate (as defined in the
Note) from and after the eleventh (11th) day after demand until paid in full.
(c) 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 and recording of this Deed of Trust.
11. No Credits on Account of the Debt. Trustor will not claim or
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demand or be entitled to any credit or credits on account of the Debt for any
part of the Impositions assessed against the Mortgaged Property, or any part
thereof, and no deduction shall otherwise be made or claimed from the assessed
value of the Mortgaged Property, or any part thereof, for real estate tax
purposes by reason of this Deed of Trust or the Debt. In the event such claim,
credit or deduction shall be required by law, Beneficiary shall have the option,
by written notice of not less than ninety (90) days, to declare the Debt
immediately due and payable.
12. Performance of Other Agreements. Trustor shall duly and
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punctually observe and perform in all material respects each and every material
term, provision, condition, and covenant to be observed or performed by Trustor
pursuant to the terms of any agreements or recorded instruments (including all
instruments comprising the Permitted Encumbrances) affecting or pertaining to
the Mortgaged Property, and will not suffer or permit any default or event of
default (after giving effect to any applicable notice requirements and cure
periods) to exist under any of the foregoing, except to the extent that the
failure to so perform or observe any agreements or instruments would not
reasonably be expected to have a Property Adverse Effect. Trustor shall enforce
the material terms, covenants and conditions contained in the Master Lease to be
observed and performed by Lessee.
13. Further Acts; Secondary Market Transactions. (a) Trustor will,
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at its sole cost and expense, and without expense to Beneficiary, do, execute,
acknowledge and deliver all and every such further acts, deeds, conveyances,
mortgages, assignments, notices of assignment, Uniform Commercial Code financing
statements or continuation statements, transfers and assurances as Beneficiary
shall, from time to time, reasonably require, for the better assuring,
conveying, assigning, transferring, and confirming unto Beneficiary the property
and rights hereby given, granted, bargained, sold, alienated, enfeoffed,
conveyed, confirmed, pledged, assigned and
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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, 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. Trustor, on
demand, will execute and deliver and, upon Trustor's failure to do so within
five (5) Business Days after Beneficiary's request therefor, hereby authorizes
Beneficiary to execute in the name of Trustor or without the signature of
Trustor to the extent Beneficiary may lawfully do so, one or more financing
statements, chattel mortgages or other instruments, to evidence more effectively
the security interest of Beneficiary in the Mortgaged Property. Trustor hereby
authorizes Beneficiary to cause any financing statement or fixture filing to be
filed or recorded without the necessity of any signature of Trustor on such
financing statement or fixture filing. Upon foreclosure or the appointment of a
receiver, Trustor will, at its sole cost and expense, cooperate fully and
completely to effect the assignment or transfer of any license, permit,
agreement or any other right necessary or useful to the operation of the
Mortgaged Property. Trustor grants to Beneficiary 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 pursuant to this
Section.
(b) Subject to the terms and conditions set forth in the Loan
Agreement, Beneficiary shall have the right to engage in one or more Secondary
Market Transactions and, in connection therewith, Beneficiary may transfer its
obligations under this Deed of Trust, the Note, the Loan Agreement and the other
Loan Documents (or may transfer the portion thereof corresponding to the
transferred portion of the Obligations), and thereafter Beneficiary shall be
relieved of any obligations hereunder and under the other Loan Documents arising
after the date of said transfer with respect to the transferred interest.
14. Recording of Deed of Trust, Etc. Upon the execution and
-------------------------------
delivery of this Deed of Trust and thereafter, from time to time, Trustor will
cause this Deed of Trust, and any security instrument creating a lien or
security interest or evidencing the lien hereof upon the Mortgaged Property and
each instrument of further assurance to be filed, registered or recorded 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 of Beneficiary in, the Mortgaged 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 deed
of trust supplemental hereto, any security instrument with respect to the
Mortgaged 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 execution and delivery of this Deed of
Trust, any deed of trust supplemental hereto, any security instrument with
respect to the Mortgaged Property or any instrument of further assurance, except
where prohibited by law so to do.
15. Reporting Requirements. Trustor agrees to give prompt notice
----------------------
to Beneficiary of the insolvency or bankruptcy filing of Trustor or the death,
insolvency or bankruptcy filing of any Guarantor.
16. Intentionally Deleted.
---------------------
10
17. Remedies. Upon the occurrence and during the continuance of an
--------
Event of Default, Beneficiary may, at Beneficiary's option, and by or through
Trustee, by Beneficiary itself, or otherwise, do any one or more of the
following:
(a) Right to Perform Trustor's Covenants. If Trustor has
------------------------------------
failed to keep or perform any covenant whatsoever contained in this Deed of
Trust or the other Loan Documents, Beneficiary may, but shall not be obligated
to do so, perform or attempt to perform said covenant; and any payment made or
expense incurred in the performance or attempted performance of any such
covenant, together with any sum expended by Beneficiary that is chargeable to
Trustor or subject to reimbursement by Trustor under the Loan Documents, shall
be and become a part of the Debt, and Trustor promises, upon demand, to pay to
Beneficiary, at the place where the Note is payable, all sums so incurred, paid
or expended by Beneficiary, with interest from the date when paid, incurred or
expended by Beneficiary at the Default Rate (as defined in the Note).
(b) Right of Entry. Beneficiary may, prior or subsequent to
--------------
the institution of any foreclosure proceedings, enter upon the Mortgaged
Property, or any part thereof, and take exclusive possession of the Mortgaged
Property and of all books, records, and accounts relating thereto and to
exercise without interference from Trustor any and all rights which Trustor has
with respect to the management, possession, operation, protection, or
preservation of the Mortgaged Property, including, without limitation, the right
to rent the same for the account of Trustor and to deduct from such Rents all
costs, expenses, and liabilities of every character incurred by the Beneficiary
in collecting such Rents and in managing, operating, maintaining, protecting, or
preserving the Mortgaged Property and to apply the remainder of such Rents on
the Debt in such manner as Beneficiary may elect. All such costs, expenses, and
liabilities incurred by Beneficiary in collecting such Rents and in managing,
operating, maintaining, protecting, or preserving the Mortgaged Property, if not
paid out of Rents as hereinabove provided, shall constitute a demand obligation
owing by Trustor and shall bear interest from the date of expenditure until paid
at the Default Rate as specified in the Note, all of which shall constitute a
portion of the Debt. If Beneficiary elects to enter the Mortgaged Property as
provided for herein, Beneficiary may invoke any and all legal remedies to
dispossess Trustor, including specifically one or more actions for forcible
entry and detainer, trespass to try title, and restitution. In connection with
any action taken by the Beneficiary pursuant to this subsection, Beneficiary
shall not be liable for any loss sustained by Trustor resulting from any failure
to let the Mortgaged Property, or any part thereof, or from any other act or
omission of the Beneficiary in managing the Mortgaged Property unless such loss
is caused by the willful misconduct or gross negligence of Beneficiary, its
agents, employees or officers, nor shall Beneficiary be obligated to perform or
discharge any obligation, duty, or liability under any Lease or under or by
reason hereof or the exercise of rights or remedies hereunder. Trustor shall and
does hereby agree to indemnify, defend and hold harmless the Indemnified Parties
(as defined in Section 23 below) from and against, any and all liability, claim,
demand, loss, damage, cost or expense (including, without limitation, reasonable
attorneys' fees and disbursements) which may or might be suffered or incurred by
any Indemnified Party under any such Lease or under or by reason hereof or the
exercise of rights or remedies hereunder, or by reason of any alleged
obligations or undertakings on its part to perform or discharge any of the
terms, covenants, or agreements contained in any such Lease, in each case, as
and to the extent provided under Section 23 below. Nothing in this
11
subsection shall impose any duty, obligation, or responsibility upon any
Indemnified Party for the control, care, management, leasing, or repair of the
Mortgaged Property, nor for the carrying out of any of the terms and conditions
of any such Lease, prior to the transfer of title to the Mortgaged Property to
any Indemnified Party by foreclosure, deed-in-lieu thereof, exercise of power of
sale or otherwise, Trustor hereby assents to, ratifies, and confirms any and all
actions of the Beneficiary with respect to the Mortgaged Property taken under
this subsection.
(c) Right to Accelerate. Beneficiary may, without notice or
-------------------
demand, declare the entire unpaid balance of the Debt immediately due and
payable.
(d) Foreclosure-Power of Sale. Beneficiary may from time to
-------------------------
time institute a proceeding or proceedings, judicial, or nonjudicial, by
advertisement or otherwise, for the complete or partial foreclosure of this Deed
of Trust or the complete or partial sale of the Mortgaged Property under the
power of sale contained herein or under any applicable provision of law.
Beneficiary may sell the Mortgaged Property, and all estate, right, title,
interest, claim and demand of Trustor therein, and all rights of redemption
thereof, at one or more sales, as an entirety or in parcels, with such elements
of real and/or personal property, and at such time and place and upon such terms
as it may deem expedient, or as may be required by applicable law, and in the
event of a sale, by foreclosure or otherwise, of less than all of the Mortgaged
Property, this Deed of Trust shall continue as a lien and security interest on
the remaining portion of the Mortgaged Property.
(e) Rights Pertaining to Sales. Subject to the requirements
--------------------------
of applicable law and except as otherwise provided herein, the following
provisions shall apply to any sale or sales of all or any portion of the
Mortgaged Property under or by virtue of Subsection (d) above, whether made
under the power of sale herein granted or by virtue of judicial proceedings or
of a judgment or decree of foreclosure and sale:
(i) Trustee or Beneficiary may conduct any number of
sales from time to time. The power of sale set forth above shall
not be exhausted by any one or more such sales as to any part of
the Mortgaged Property which shall not have been sold, nor by
any sale which is not completed or is defective in Beneficiary's
opinion, until the Debt shall have been paid in full.
(ii) Any sale may be postponed or adjourned by public
announcement at the time and place appointed for such sale or
for such postponed or adjourned sale without further notice.
(iii) After each sale, Trustee, Beneficiary or an
officer of any court empowered to do so shall execute and
deliver to the purchaser or purchasers at such sale a good and
sufficient instrument or instruments granting, conveying,
assigning and transferring all right, title and interest of
Trustor in and to the property and rights sold and shall receive
the proceeds of said sale or sales and apply the same as
specified in the Loan Agreement. Each of Trustee and Beneficiary
is hereby appointed the true and lawful attorney-in-fact of
Trustor, which appointment is irrevocable and shall be deemed to
be coupled with an
12
interest, in Trustor's name and stead, to make all necessary
conveyances, assignments, transfers and deliveries of the
property and rights so sold, Trustor hereby ratifying and
confirming all that said attorney or such substitute or
substitutes shall lawfully do by virtue thereof. Nevertheless,
Trustor, if requested by Beneficiary or Trustee, shall ratify
and confirm any such sale or sales by executing and delivering
to Beneficiary, Trustee or such purchaser or purchasers all such
instruments as may be advisable, in Beneficiary's or Trustee's
judgment, for the purposes as may be designated in such request.
(iv) Any and all statements of fact or other recitals
made in any of the instruments referred to in Subsection
(e)(iii) above given by Beneficiary shall be taken as conclusive
and binding against all persons as to evidence of the truth of
the facts so stated and recited.
(v) Any such sale or sales shall operate to divest
all of 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 any and all
persons claiming or who may claim the same, or any part thereof
or any interest therein, by, through or under Trustor to the
fullest extent permitted by applicable law.
(vi) Upon any such sale or sales, Beneficiary may bid
for and acquire the Mortgaged Property and, in lieu of paying
cash therefor, may make a settlement for the purchase price by
crediting against the Debt the amount of the bid made therefor,
after deducting therefrom the expenses of the sale, the cost of
any enforcement proceeding hereunder, and any other sums which
Beneficiary or Trustee is authorized to deduct under the terms
hereof, to the extent necessary to satisfy such bid.
(vii) Upon any such sale, it shall not be necessary
for Beneficiary or any public officer acting under execution or
order of court to have present or constructively in its
possession any of the Mortgaged Property.
(f) Beneficiary's Judicial Remedies. Beneficiary, or Trustee
-------------------------------
upon written request of Beneficiary, may proceed by suit or suits, at law or in
equity, to enforce the payment of the Debt, to foreclose the liens and security
interests of this Deed of Trust as against all or any part of the Mortgaged
Property, and to have all or any part of the Mortgaged Property sold under the
judgment or decree of a court of competent jurisdiction. This remedy shall be
cumulative of any other nonjudicial remedies available to the Beneficiary under
this Deed of Trust or the other Loan Documents. Proceeding with a request or
receiving a judgment for legal relief shall not be or be deemed to be an
election of remedies or bar any available nonjudicial remedy of the Beneficiary.
(g) Beneficiary's Right to Appointment of Receiver.
----------------------------------------------
Beneficiary, as a matter of right and (i) without regard to the sufficiency of
the security for repayment of the Debt and without notice to Trustor (other than
as required by law), (ii) without any showing of insolvency,
13
fraud, or mismanagement on the part of Trustor, (iii) without the necessity of
filing any judicial or other proceeding other than the proceeding for
appointment of a receiver, and (iv) without regard to the then value of the
Mortgaged Property, shall be entitled to the appointment of a receiver or
receivers for the protection, possession, control, management and operation of
the Mortgaged Property, including (without limitation), the power to collect the
Rents, enforce this Deed of Trust and, in case of a sale and deficiency, during
the full statutory period of redemption (if any), whether there be a redemption
or not, as well as during any further times when Trustor, except for the
intervention of such receiver, would be entitled to collection of such Rents.
Trustor hereby irrevocably consents to the appointment of a receiver or
receivers. Any receiver appointed pursuant to the provisions of this subsection
shall have the usual powers and duties of receivers in such matters.
(h) Beneficiary's Uniform Commercial Code Remedies. Beneficiary may
----------------------------------------------
exercise its rights of enforcement under the Uniform Commercial Code in effect
in the state in which the Mortgaged Property is located and in the state where
Trustor is organized.
(i) Other Rights. Beneficiary (i) may surrender the insurance
------------
policies owned by Trustor and maintained pursuant to the Loan Agreement or any
part thereof, and upon receipt of the proceeds shall apply the unearned
Insurance Premiums as a credit on the Debt, and, in connection therewith,
Trustor hereby appoints Beneficiary as agent and attorney-in-fact (which is
coupled with an interest and is therefore irrevocable) for Trustor to collect
such Insurance Premiums; (ii) may apply the Impositions and Insurance Reserve
and/or any other Reserves held pursuant to this Deed of Trust or the other Loan
Documents, and any other funds held by Beneficiary toward payment of the Debt;
and (iii) shall have and may exercise any and all other rights and remedies
which Beneficiary may have at law or in equity, or by virtue of any of the Loan
Documents, or otherwise.
(j) Discontinuance of Remedies. If Beneficiary shall have proceeded
--------------------------
to invoke any right, remedy, or recourse permitted under the Loan Documents and
shall thereafter elect to discontinue or abandon same for any reason,
Beneficiary shall have the unqualified right so to do and, in such event,
Trustor and Beneficiary shall be restored to their former positions with respect
to the Debt, the Loan Documents, the Mortgaged Property or otherwise, and the
rights, remedies, recourses and powers of Beneficiary shall continue as if same
had never been invoked.
(k) Remedies Cumulative. All rights, remedies, and recourses of
-------------------
Beneficiary granted in the Note, this Deed of Trust and the other Loan
Documents, any other pledge of collateral, or otherwise available at law or
equity: (i) shall be cumulative; (ii) may be pursued separately, successively,
or concurrently against Trustor, the Mortgaged Property, or any one or more of
them, at such time and in such order as Beneficiary may determine in its sole
discretion; (iii) may be exercised as often as occasion therefor shall arise, it
being agreed by Trustor that the exercise or failure to exercise any of same
shall in no event be construed as a waiver or release thereof or of any other
right, remedy, or recourse; (iv) shall be nonexclusive of any other right, power
or remedy which Beneficiary may have against Trustor pursuant to this Deed of
Trust, the Loan Agreement or the other Loan Documents, or otherwise available at
law or in equity; (v) shall not be conditioned upon Beneficiary exercising or
pursuing any remedy in relation to the
14
Mortgaged Property prior to Beneficiary bringing suit to recover the Debt; and
(vi) in the event Beneficiary elects to bring suit on the Debt and obtains a
judgment against Trustor prior to exercising any remedies in relation to the
Mortgaged Property, all liens and security interests, including the lien of this
Deed of Trust, shall remain in full force and effect and may be exercised
thereafter at Beneficiary's option.
(l) Election of Remedies. Beneficiary may release,
--------------------
regardless of consideration, any part of the Mortgaged Property without, as to
the remainder, in any way impairing, affecting, subordinating, or releasing the
lien or security interests evidenced by this Deed of Trust or the other Loan
Documents or affecting the obligations of Trustor or any other party to pay the
Debt. For payment of the Debt, Beneficiary may resort to any collateral securing
the payment of the Debt in such order and manner as Beneficiary may elect. No
collateral taken by Beneficiary shall in any manner impair or affect the lien or
security interests given pursuant to the Loan Documents, and all collateral
shall be taken, considered, and held as cumulative.
(m) Bankruptcy Acknowledgment. If the Mortgaged Property or
-------------------------
any portion thereof or any interest therein becomes property of any bankruptcy
estate or subject to any state or federal insolvency proceeding, or in the event
of the filing of any voluntary or involuntary petition under the Bankruptcy Code
by or against Trustor then Beneficiary shall immediately become entitled, in
addition to all other relief to which Beneficiary may be entitled under this
Deed of Trust, to obtain (i) an order from any bankruptcy court or other
appropriate court exercising jurisdiction over the bankruptcy case granting
immediate relief from the automatic stay pursuant to ss. 362 of the Bankruptcy
Code so as to permit Beneficiary to pursue its rights and remedies against
Trustor as provided under this Deed of Trust and all other rights and remedies
of Beneficiary at law and in equity under applicable state law, and (ii) an
order from any bankruptcy court prohibiting Trustor's use of all "cash
collateral" (as defined under ss. 363 of the Bankruptcy Code). Trustor shall not
assert or request any other party to assert, that the automatic stay under ss.
362 of the Bankruptcy Code operate or be interpreted to stay, interdict,
condition, reduce or inhibit the ability of Beneficiary to enforce any rights it
has by virtue of this Deed of Trust, or any other rights that Beneficiary has,
whether now or hereafter acquired, against any guarantor of the Debt. Trustor
shall not seek a supplemental stay or any other relief, whether injunctive or
otherwise, pursuant to ss. 105 of the Bankruptcy Code or any other provision
therein to stay, interdict, condition, reduce or inhibit the ability of
Beneficiary to enforce any rights it has by virtue of this Deed of Trust against
any guarantor of the Debt.
(n) Application of Proceeds. The proceeds from any sale,
-----------------------
lease, or other disposition made pursuant to this Deed of Trust, or the proceeds
from the surrender of any insurance policies pursuant hereto, or any Rents
collected by Beneficiary from the Mortgaged Property or the Impositions and
Insurance Reserve or other Reserves under the Cash Management Agreement or sums
received pursuant to Section 6 hereof, or proceeds from insurance which
Beneficiary elects to apply to the Debt pursuant to Section 3 hereof, shall be
applied by Beneficiary to the Debt in such order, priority and proportions as
Beneficiary in its sole discretion shall determine.
(o) Cross-Collateralization. The mortgages and deeds of
-----------------------
trust (other than this Deed of Trust) listed on Exhibit B attached hereto and
---------
made a part hereof, as any of same may be
15
amended, modified or supplemented from time to time, are collectively referred
to for purposes of this Section 17(o) as the "Other Mortgages." This Deed of
---------------
Trust, as it may be amended, modified or supplemented from time to time,
together with the Other Mortgages, are collectively referred to for purposes of
this Section 17(o) as the "Mortgages." The Obligations are secured by, among
---------
other things, the Mortgages, which encumber real and personal property in
certain other States, as more particularly described in each of the Mortgages.
The Obligations may be accelerated as provided in the Loan Documents. Upon the
occurrence and during the continuance of an Event of Default, Beneficiary may,
at its option, accelerate the Obligations and foreclose upon any one or more of
the Mortgages or resort to any one or more of its other rights and remedies
under any or all of the Mortgages and the other Loan Documents. Except as
otherwise provided herein, all of the real and personal property conveyed and/or
mortgaged by the Mortgages is security for the Obligations without allocation of
any one or more of the parcels or portions thereof to any portion of the
Obligations. Beneficiary may allocate the proceeds that it receives upon the
exercise of its rights and remedies, including foreclosure, to payment of the
Obligations as Beneficiary in its sole discretion may determine to be advisable
pursuant to the terms of the Loan Documents. Beneficiary may proceed, at the
same or different times, to foreclose the Mortgages or any one or more of them,
by any proceedings appropriate in the state where any of the real property
encumbered by one or more of the Mortgages lies, including private sale if
permitted, and no event of enforcement taking place in any state, including
without limiting the generality of the foregoing, any pending foreclosure,
judgment or decree of foreclosure, foreclosure sale, rents received, possession
taken, deficiency judgment or decrees, or judgment taken on the Obligations,
shall in any way stay, preclude or bar enforcement of the Mortgages or any of
them in any other state, and Beneficiary may pursue any or all of its remedies
to the maximum extent permitted by applicable law pursuant to the terms of the
Loan Documents until all of the Obligations and all other obligations now or
hereafter secured by any or all of the Mortgages have been paid or discharged in
full. Additionally, and without limitation of any other provision of this Deed
of Trust, if this Deed of Trust is foreclosed and the Mortgaged Property (or any
part thereof) is sold pursuant to foreclosure or other proceedings, and if the
proceeds of such sale (after application of such proceeds as provided in this
Deed of Trust and the other Loan Documents) are not sufficient to pay the total
sum of the Obligations then outstanding and any other amounts provided for by
applicable law (the "Balance Owed"), then, to the extent permitted by law, the
------------
Obligations shall not be satisfied to the extent of the Balance Owed, but such
Obligations shall continue in existence and continue to be evidenced and secured
by the Loan Documents and the Mortgages. Subject to the requirements of
applicable law, if Beneficiary shall acquire the Mortgaged Property as a result
of any foreclosure or other sale (whether by bidding all or any portion of the
Obligations or otherwise), the proceeds of such sale, to the extent permitted by
law, shall not be deemed to include (and Trustor shall not be entitled to any
benefit or credit on account of) proceeds of any subsequent sale of the
Mortgaged Property by Beneficiary. Without limitation of any other provision
hereof, Trustor further agrees that if any of the Other Mortgages are foreclosed
and sale is made of any of the property subject to any Other Mortgages, and if
the proceeds of such sale (after application of such proceeds as provided for
herein and after deducting all accrued and general and special taxes and
assessments) are not sufficient to pay the Obligations and any other amounts
provided for by applicable law, then, to the extent permitted by law, the
Obligations then outstanding shall not be satisfied to the extent of the Balance
Owed, but such Obligations shall continue in existence and continue to be
16
evidenced and secured by the Loan Documents and the Mortgages existing
immediately prior to any such foreclosure, except such Mortgages foreclosed
upon. No release of personal liability of any Person whatsoever and no release
of any portion of the property now or hereafter subject to the lien of any of
the Mortgages shall have any effect whatsoever by way of impairment or
disturbance of the lien or priority of any other of the Mortgages or the
unreleased properties encumbered by any of the Mortgages, to the extent
permitted by law. Any foreclosure or other appropriate remedy brought in any of
the states aforesaid may be brought and prosecuted as to any part of the
security, wherever located, without regard to the fact that foreclosure
proceedings or other remedies have or have not been instituted elsewhere on any
other property subject to the lien of the Mortgages. Neither Trustor nor any
Person claiming by, through or under Trustor shall have any right to marshal the
assets, all such rights being hereby expressly waived as to Trustor and all
Persons claiming by, through or under Trustor, including, without limitation,
junior lienors. Each of Trustor and all endorsers, guarantors and sureties of
the Obligations, hereby waives any and all rights arising because of payment or
performance by Trustor of any Obligations (a) against any Person by way of
subrogation of the rights of Beneficiary or (b) against any Person obligated to
pay or perform the Obligations or other obligations secured by the Other
Mortgages by way of contribution, reimbursement or otherwise.
18. 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 Mortgaged Property includes both real and personal property and all
other rights and interests, whether tangible or intangible in nature, of Trustor
in the Mortgaged Property. Trustor by executing and delivering this Deed of
Trust has granted and hereby grants to Beneficiary, as security for the Debt, a
security interest in the Mortgaged Property to the full extent that the
Mortgaged Property may be subject to the Uniform Commercial Code (said portion
of the Mortgaged Property so subject to the Uniform Commercial Code being called
in this Section 18 the "Collateral"). Trustor hereby agrees to execute and
----------
deliver to Beneficiary, in form and substance reasonably satisfactory to
Beneficiary, such financing statements and such further assurances as
Beneficiary may from time to time reasonably consider necessary to create,
perfect, and preserve Beneficiary's security interest herein granted. This Deed
of Trust shall also constitute a "fixture filing" for the purposes of the
Uniform Commercial Code as to all or any part of the Mortgaged Property which
now or hereafter constitute "fixtures" under the Uniform Commercial Code.
Information concerning the security interest herein granted may be obtained from
the parties at the addresses of the parties set forth in the first paragraph of
this Deed of Trust. 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, 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 reasonably
acceptable to Beneficiary. Trustor shall pay to Beneficiary on demand any and
all expenses, including reasonable legal expenses and attorneys' fees, incurred
or paid by Beneficiary in protecting the interest in the Collateral and in
enforcing the rights hereunder with respect to the Collateral. Any notice of
sale, disposition or other intended action by Beneficiary
17
with respect to the Collateral sent to Trustor in accordance with the provisions
hereof at least ten (10) days prior to such action, shall constitute
commercially 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 Debt in such priority and proportions as Beneficiary in its
discretion shall deem proper. In the event of any change in name, identity or
structure of any Trustor, such Trustor shall notify Beneficiary thereof and
promptly after Beneficiary's request shall execute, file and record such Uniform
Commercial Code forms as are necessary to maintain the priority of Beneficiary's
lien upon and security interest in the Collateral, and shall pay all expenses
and fees in connection with the filing and recording thereof. If Beneficiary
shall require the filing or recording of additional Uniform Commercial Code
forms or continuation statements, Trustor shall, promptly after request,
execute, file and record such Uniform Commercial Code forms or continuation
statements as Beneficiary shall deem reasonably necessary, and shall pay all
expenses and fees in connection with the filing and recording thereof, it being
understood and agreed, however, that no such additional documents shall increase
Trustor's obligations under the Note, this Deed of Trust and the other Loan
Documents. Trustor hereby irrevocably appoints Beneficiary as its
attorney-in-fact, coupled with an interest upon Trustor's failure to do so
within ten (10) Business Days after request by Beneficiary, to file with the
appropriate public office on its behalf any financing or other statements signed
only by Beneficiary, as Trustor's attorney-in-fact, in connection with the
Collateral covered by this Deed of Trust. Notwithstanding the foregoing, Trustor
shall appear and defend Trustor's interests in any action or proceeding which
affects or purports to affect the Mortgaged Property and any interest or right
therein, whether such proceeding affects title or any other rights in the
Mortgaged Property (and in conjunction therewith, Trustor shall fully cooperate
with Beneficiary in the event Beneficiary is a party to such action or
proceeding).
19. Actions and Proceedings. Upon the occurrence and during the continuance
-----------------------
of an Event of Default, Beneficiary has the right to appear in and defend any
action or proceeding brought with respect to the Mortgaged Property and to bring
any action or proceeding, in the name and on behalf of Trustor, which
Beneficiary, in its discretion, decides should be brought to protect its
interest in the Mortgaged Property. Beneficiary shall, at its option, be
subrogated to the lien of any deed of trust or other security instrument
discharged in whole or in part by the Debt, and any such subrogation rights
shall constitute additional security for the payment of the Debt.
20. Waiver of Setoff and Counterclaim, Marshalling, Statute of Limitations,
-----------------------------------------------------------------------
Automatic or Supplemental Stay, Etc. (a) All amounts due under this Deed of
-----------------------------------
Trust, the Note and the other Loan Documents shall be payable without setoff,
counterclaim or any deduction whatsoever. Trustor hereby waives the right to
assert a setoff, counterclaim or deduction in any action or proceeding in which
Beneficiary is a participant, or arising out of or in any way connected with
this Deed of Trust, the Note, any of the other Loan Documents, or the Debt.
(b) Trustor hereby expressly, irrevocably, and unconditionally waives
and releases, to the extent permitted by law (i) the benefit of all
appraisement, valuation, stay, extension, reinstatement and redemption laws now
or hereafter in force and all rights of marshalling, sale in the inverse order
of alienation, or any other right to direct in any manner the order or sale of
any of the Mortgaged Property in the event of any sale hereunder of the
18
Mortgaged Property or any part thereof or any interest therein; (ii) 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 Mortgaged Property subsequent to the
date of this Deed of Trust and on behalf of all persons to the extent permitted
by applicable law; and (iii) all benefits that might accrue to Trustor by virtue
of any present or future law exempting the Mortgaged Property from attachment,
levy or sale on execution or providing for any appraisement, valuation, stay of
execution, exemption from civil process, redemption, or extension of time for
payment. Beneficiary shall not be under any obligation to marshal any assets in
favor of any Person or against or in payment of any or all of the Obligations.
(c) To the extent permitted by applicable law, Beneficiary's rights
hereunder shall continue even to the extent that a suit for collection of the
Debt, or part thereof, is barred by a statute of limitations. Trustor hereby
expressly waives and releases to the fullest extent permitted by law, the
pleading of any statute of limitations as a defense to payment of the Debt.
21. 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 Debt as the same become due, without regard to whether or not the
balance of the Debt 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.
22. Handicapped Access. (a) Trustor agrees that the Mortgaged Property
------------------
shall at all times comply in all material respects with applicable requirements
of the Americans with Disabilities Act of 1990, the Fair Housing Amendments Act
of 1988, all state and local laws and ordinances related to handicapped access
and all rules, regulations, and orders issued pursuant thereto including,
without limitation, the Americans with Disabilities Act Accessibility Guidelines
for Buildings and Facilities (collectively "Access Laws"), in each case unless
-----------
and to the extent that non-compliance with Access Laws would not reasonably be
expected to have a Property Adverse Effect.
(b) Trustor agrees to give prompt notice to Beneficiary of the
receipt by Trustor of any complaints related to violation of any Access Laws and
of the commencement of any proceedings or investigations which relate to
compliance with applicable Access Laws but only to the extent that such
complaints, proceedings or investigations, if adversely determined, could have a
Material Adverse Effect.
23. Indemnification. In addition to the payment of expenses as required
---------------
elsewhere herein and in the other Loan Documents, Trustor agrees to indemnify,
defend, protect, pay and hold Trustee and Beneficiary, and each of their
successors and assigns (including, without limitation, the trustee and/or the
trust under any trust agreement executed in connection with any Securitization
backed in whole or in part by the Loan and any other person which may hereafter
be the holder of the Note or any interest therein), and the officers, directors,
stockholders, partners, members, employees, agents and Affiliates of Trustee and
Beneficiary and such successors and assigns (collectively, the "Indemnified
-----------
Parties") harmless from and against any
-------
19
and all liabilities, obligations, claims, damages, penalties, causes of action,
out-of-pocket costs and expenses (including without limitation reasonable
attorneys' fees and expenses) (collectively, the "Indemnified Claims"), imposed
------------------
upon or incurred by or asserted against any Indemnified Party by reason of any
of the following (to the extent that insurance proceeds paid to the applicable
Indemnified Party on account of the following shall be inadequate: (i) ownership
of the Deed of Trust or a lien upon the Mortgaged Property or any interest
therein or receipt of any rents from the Premises; (ii) any accident, injury to
or death of persons or loss of or damage to property occurring in, on or about
the Mortgaged Property or any part thereof or on the adjoining sidewalks, curbs,
adjacent property or adjacent parking areas, streets or ways; (iii) any use,
nonuse or condition in, on or about the Mortgaged Property or any part thereof
or on the adjoining sidewalks, curbs, adjacent property or adjacent parking
areas, streets or ways; (iv) performance of any labor or services or the
furnishing of any materials or other property in respect of the Mortgaged
Property or any part thereof; (v) any failure of the Premises or the
Improvements to comply with any applicable law, statute, code, ordinance, rule
or regulation; (vi) any default by Trustor under this Deed of Trust, the Loan
Agreement or any other Loan Documents; (vii) any actions taken by any
Indemnified Party in the enforcement of this Deed of Trust and the other Loan
Documents in accordance with their respective terms (viii) any failure to act on
the part of any Indemnified Party hereunder; (ix) any representation or warranty
made in the Note, this Deed of Trust or any of the other Loan Documents being
false or misleading in any material respect as of the date such representation
or warranty was made; (x) any claim by brokers, finders or similar persons
claiming to be entitled to a commission in connection with any Lease or other
transaction involving the Mortgaged Property or any part thereof under any legal
requirement or any liability asserted against Beneficiary with respect thereto;
and (xi) the claims of any lessee of all or any portion of the Mortgaged
Property or any person acting through or under any lessee or otherwise arising
under or as a consequence of any Lease. Notwithstanding the foregoing, Trustor
shall not be liable for any Indemnified Claims arising (A) from the gross
negligence or willful misconduct of any Indemnified Party or (B) under clauses
(i) - (v), clause (viii), clause (x) and/or clause (xi) above to the extent the
facts, events or circumstances giving rise to such Indemnified Claim arise after
the date that any Indemnified Party or third party takes title to the Mortgaged
Property by foreclosure, deed-in-lieu thereof, the exercise of any power of sale
or otherwise. Any amounts payable to an Indemnified Party by reason of the
application of this Section 23 shall be secured by this Deed of Trust, shall
become due and payable on demand and shall bear interest at the Default Rate
from the date loss or damage is sustained by such Indemnified Party until paid.
The obligations and liabilities of Trustor under this paragraph shall survive
the termination, satisfaction, or assignment of this Deed of Trust and the
exercise by Beneficiary of any of its rights or remedies hereunder, including,
but not limited to, the acquisition of the Mortgaged Property by foreclosure or
a conveyance in lieu of foreclosure.
24. Notices. Any notice, demand, statement, request or consent made
-------
hereunder shall be in writing, addressed to the intended recipient at its
address set forth in the Loan Agreement, and shall be made and deemed given in
accordance with the terms of the Loan Agreement.
25. Authority. (a) Trustor (and the undersigned representative of Trustor,
---------
if any) has full power, authority and right to execute, deliver and perform its
obligations pursuant to this Deed of Trust, and to give, grant, bargain, sell,
alien, enfeoff, convey, confirm, warrant, pledge,
20
hypothecate and assign the Mortgaged 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; and (b) Trustor represents and warrants that Trustor is not a
"foreign person" within the meaning of Section 1445(f)(3) of the Internal
Revenue Code of 1986, as amended and the related Treasury Department
regulations.
26. 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 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. Without limiting the
foregoing, Trustor requests that a copy of any notice of default and notice of
sale required hereunder be mailed to Trustor at the address set forth for
Trustor in the introductory paragraph of this Deed of Trust.
27. 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.
28. Sole Discretion of Beneficiary. Whenever pursuant to this Deed of Trust
------------------------------
or the other Loan Documents, Beneficiary exercises any right given to it to
consent, approve or disapprove, or any arrangement or term is to be satisfactory
to Beneficiary, the decision of Beneficiary to consent, 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 in the case of all the foregoing provisions, as may be
otherwise expressly and specifically provided herein. Notwithstanding anything
to the contrary contained herein, it shall be understood and agreed that any
such consent, approval, or disapproval may be conditioned, among other things,
upon Beneficiary obtaining confirmation by the Rating Agencies that the action
or other matter subject to Beneficiary's consent, approval, or disapproval shall
not adversely affect the rating of any securities issued or to be issued in
connection with any Secondary Market Transaction, notwithstanding that such
condition may not be expressly set forth in the provision or provisions of the
Loan Documents which require that Beneficiary's consent be obtained.
29. 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) the failure of Beneficiary to comply with any request
of Trustor or Guarantor to take any action to foreclose this Deed of Trust or
otherwise enforce any of the provisions hereof or of the Note or other Loan
Documents, (b) the release, regardless of consideration, of the whole or any
part of the Mortgaged Property, or of any person liable for the Debt or any
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
21
payment of the Debt 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 Debt, or any portion thereof, or to enforce any covenant hereof
without prejudice to the right of Beneficiary thereafter to foreclosure this
Deed of Trust. The rights and remedies of Beneficiary under this Deed of Trust
shall be separate, distinct and cumulative and 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 at law or in equity.
30. Liability. If Trustor consists of more than one person, the
---------
obligations and liabilities of each such person hereunder shall be joint and
several. Subject to the provisions hereof requiring Beneficiary's consent to any
transfer of the Mortgaged Property, this Deed of Trust shall be binding upon and
inure to the benefit of Trustor and Beneficiary and their respective successors
and assigns forever.
31. Inapplicable Provisions. If any term, covenant or condition of this
-----------------------
Deed of Trust is held to be invalid, illegal or unenforceable in any respect,
this Deed of Trust shall be construed without such provision.
32. Headings, Etc. The headings and captions of various Sections 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.
33. Counterparts. This Deed of Trust may be executed in any number of
------------
counterparts each of which shall be deemed to be an original but all of which
when taken together shall constitute one agreement.
34. Definitions. Unless the context clearly indicates a contrary intent or
-----------
unless otherwise specifically provided herein, words used in this Deed of Trust
may be used interchangeably in singular or plural form and the word "Trustor"
shall mean "each Trustor and any subsequent owner or owners of the Mortgaged
Property or any part thereof or any interest therein," the word "Beneficiary"
shall mean "Beneficiary and any subsequent holder of the Note," the word "Debt"
shall mean "the Note and any other evidence of indebtedness secured by this Deed
of Trust," the word "person" shall include an individual, corporation,
partnership, trust, unincorporated association, government, governmental
authority, and any other entity, and the words "Mortgaged Property" shall
include any portion of the Mortgaged Property and any interest therein and the
words "attorneys' fees" shall include any and all reasonable attorneys' fees,
paralegal and law clerk fees, including, but not limited to, fees at the
pre-trial, trial and appellate levels incurred or paid by Beneficiary in
protecting its interest in the Mortgaged Property and Collateral and enforcing
its rights hereunder. 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.
22
35. 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 Premises as against the collection of the Debt,
or any part hereof.
36. Assignments. Beneficiary shall have the right to assign or transfer
-----------
its rights under this Deed of Trust and the other Loan Documents without
limitation, including, without limitation, the right to assign or transfer its
rights to a servicing agent. Any assignee or transferee shall be entitled to all
the benefits afforded Beneficiary under this Deed of Trust and the other Loan
Documents. Beneficiary agrees to provide Trustor with notice of any such
assignment, and in no event shall Trustor's monetary obligations hereunder and
under the other Loan Documents be increased as a result of such assignment
(except in accordance with Section 10.2 of the Loan Agreement); provided,
however, that Trustor's consent shall not be required in connection with any
such assignment and no delay or failure by Beneficiary to provide such notice
shall limit the effectiveness of such assignment.
37. Survival of Obligations; Survival of Warranties and Representations.
-------------------------------------------------------------------
Each and all of the covenants, obligations, representations and warranties of
Trustor shall survive the execution and delivery of the Loan Documents and the
transfer or assignment of this Deed of Trust (including, without limitation, any
transfer of the Deed of Trust by Beneficiary of any of its rights, title and
interest in and to the Mortgaged Property to any party, whether or not
affiliated with Beneficiary).
38. Covenants Running with the Land. All covenants, conditions,
-------------------------------
warranties, representations and other obligations contained in this Deed of
Trust and the other Loan Documents are intended by Trustor and Beneficiary to
be, and shall be construed as, covenants running with the Mortgaged Property
until the lien of this Deed of Trust has been fully released by Beneficiary.
39. Governing Law; Jurisdiction. THIS DEED OF TRUST WAS NEGOTIATED IN THE
---------------------------
STATE OF NEW YORK AND WAS MADE BY TRUSTOR AND ACCEPTED BY BENEFICIARY IN THE
STATE OF NEW YORK, AND THE PROCEEDS OF THE NOTE WERE DISBURSED FROM THE STATE OF
NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE
PARTIES AND TO THE UNDERLYING TRANSACTION, AND IN ALL RESPECTS INCLUDING,
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE. THIS DEED OF TRUST AND THE OBLIGATIONS ARISING
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THE STATE OF NEW
YORK AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA, EXCEPT THAT AT ALL
TIMES THE PROVISIONS FOR THE CREATION, PERFECTION AND ENFORCEMENT OF THE LIENS
AND SECURITY INTERESTS CREATED PURSUANT TO THIS DEED OF TRUST SHALL BE GOVERNED
BY THE LAWS OF THE STATE WHERE THE MORTGAGED PROPERTY IS LOCATED.
23
40. Time of Essence. Time is of the essence as to all of the terms,
---------------
covenants and condition of this Deed of Trust and the other Loan Documents.
41. No Third-Party Beneficiaries. The provisions of this Deed of Trust and
----------------------------
the other Loan Documents are for the benefit of Trustor and Beneficiary and
shall not inure to the benefit of any third party (other than any successor or
assignee of Beneficiary or permitted assignee of Trustor). This Deed of Trust
and the other Loan Documents shall not be construed as creating any rights,
claims or causes of action against Beneficiary or any of its officers,
directors, agents or employees in favor of any party other than Trustor
including but not limited to any claims to any sums held in the Impositions and
Insurance Reserve or any other Reserve.
42. Relationship of Parties. The relationship of Beneficiary and Trustor
-----------------------
is solely that of debtor and creditor, and Beneficiary has no fiduciary or other
special relationship with the Trustor, and no term or condition of any of the
Loan Documents shall be construed to be other than that of debtor and creditor.
Trustor represents and acknowledges that neither the Loan Documents nor any
course of dealing between the parties creates any partnership or joint venture
between Trustor and Beneficiary or any other person, nor does it provide for any
shared appreciation rights or other equity participation interest.
43. Successors and Assigns. This Deed of Trust shall be binding upon and
----------------------
inure to the benefit of the parties hereto and their respective successors and
assigns, except that Trustor may not assign its rights or obligations hereunder
except as expressly provided in Section 9 hereof or as permitted under the Loan
Agreement.
44. Investigations. Any and all representations, warranties, covenants
--------------
and agreements made in this Deed of Trust (and/or in other Loan Documents) shall
survive any investigation or inspection made by or on behalf of Beneficiary.
45. Assignment of Leases and Rents. (a) Trustor acknowledges and confirms
------------------------------
that it has executed and delivered to Beneficiary the Assignment of Leases
intending that such instrument create a present, absolute assignment to
Beneficiary of the Leases and Rents. Without limiting the intended benefits or
the remedies provided under the Assignment of Leases, Trustor hereby assigns to
Beneficiary, as further security for the Debt and the Obligations, the Leases
and Rents. While any Event of Default exists, Beneficiary shall be entitled to
exercise any or all of the remedies provided in the Assignment of Leases and in
Section 17 hereof, including, without limitation, the right to have a receiver
appointed. If any conflict or inconsistency exists between the Assignment of the
Leases and this Deed of Trust and the absolute assignment of the Leases and the
Rents in the Assignment of Leases, the terms of the Assignment of Leases shall
control.
(b) So long as any part of the Debt and the Obligations secured
hereby remain unpaid and undischarged, the fee and leasehold estates to the
Mortgaged Property shall not merge, but shall remain separate and distinct,
notwithstanding the union of such estates either in Trustor, Beneficiary, any
lessee or any third party by purchase or otherwise.
46. Waiver of Right to Trial by Jury. EACH OF TRUSTEE, BENEFICIARY AND
--------------------------------
TRUSTOR HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE
24
TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE
EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS DEED
OF TRUST OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION
ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN
KNOWINGLY AND VOLUNTARILY BY EACH OF TRUSTEE, TRUSTOR AND BENEFICIARY, AND IS
INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE
RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. BENEFICIARY IS HEREBY
AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE
EVIDENCE OF THIS WAIVER BY TRUSTOR.
47. Expenses and Attorneys' Fees. Trustor agrees to promptly pay all
----------------------------
reasonable fees, costs and expenses incurred by Beneficiary in connection with
any matters contemplated by or arising out of this Deed of Trust and the other
Loan Documents, including, without limitation, reasonable fees, costs and
expenses (including reasonable attorneys' fees and fees of other professionals
retained by Beneficiary) incurred in any action to enforce this Deed of Trust or
the other Loan Documents or to collect any payments due from Trustor under this
Deed of Trust, the Note or any other Loan Document or incurred in connection
with any refinancing or restructuring of the credit arrangements provided under
this Deed of Trust incurred in connection with a "workout" or in connection with
any insolvency or bankruptcy proceedings with respect to Trustor, and all such
fees, costs and expenses shall be part of the Obligations, payable on demand.
48. Amendments and Waivers. Except as otherwise provided herein, no
----------------------
amendment, modification, termination or waiver of any provision of this Deed of
Trust, the Note or any other Loan Document, or consent to any departure
therefrom, shall in any event be effective unless the same shall be in writing
and signed by Beneficiary and any other party to be charged. Each amendment,
modification, termination or waiver shall be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or
demand on Trustor in any case shall entitle Trustor to any other or further
notice or demand in similar or other circumstances.
49. Servicer. Beneficiary shall have the right at any time throughout the
--------
term of the Loan to designate or appoint one or more Servicers (as defined in
the Loan Agreement) to administer this Deed of Trust and the other Loan
Documents, and to change or replace any Servicer. All of Beneficiary's rights
under this Deed of Trust and the other Loan Documents may be exercised by any
such Servicer designated by Beneficiary. Any such Servicer shall be entitled to
the benefit of all obligations of Trustor in favor of Beneficiary.
50. Intentionally Deleted.
---------------------
51. Trustee. Trustee may resign by the giving of written notice of such
-------
resignation to Beneficiary. If Trustee shall die, resign, or become disqualified
from acting in the execution of this trust, or if, for any reason, Beneficiary
shall prefer to appoint a substitute trustee or multiple substitute trustees, or
successive substitute trustees or successive multiple substitute trustees, to
act instead of the aforenamed Trustee, Beneficiary shall have full power to
appoint a substitute
25
trustee (or, if preferred, multiple substitute trustees) in succession who shall
succeed (and if multiple substitute trustees are appointed, each of such
multiple substitute trustees shall succeed) to all the estates, rights, powers,
and duties of the aforenamed Trustee. Such appointment may be executed by any
authorized agent of Beneficiary, and if such Beneficiary be a corporation and
such appointment be executed in its behalf by any officer of such corporation,
such appointment shall be conclusively presumed to be executed with authority
and shall be valid and sufficient without proof of any action by the board of
directors or any superior officer of the corporation. Trustor hereby ratifies
and confirms any and all acts which the aforenamed Trustee, or his successor or
successors in this trust, shall do lawfully by virtue hereof. If multiple
substitute Trustees are appointed, each of such multiple substitute Trustees
shall be empowered and authorized to act alone without the necessity of the
joinder of the other multiple substitute trustees, whenever any action or
undertaking of such substitute trustees is requested or required under or
pursuant to this Deed of Trust or applicable law. Any substitute Trustee
appointed pursuant to any of the provisions hereof shall, without any further
act, deed, or conveyance, become vested with all the estates, properties,
rights, powers, and trusts of its or his predecessor in the rights hereunder
with like effect as if originally named as Trustee herein; but nevertheless,
upon the written request of Beneficiary or of the substitute Trustee, the
Trustee ceasing to act shall execute and deliver any instrument transferring to
such substitute Trustee, upon the trusts herein expressed, all the estates,
properties, rights, powers, and trusts of the Trustee so ceasing to act, and
shall duly assign, transfer and deliver any of the property and moneys held by
such Trustee to the substitute Trustee so appointed in the Trustee's place. No
fees or expenses shall be payable to Trustee, except in connection with a
foreclosure of the Mortgaged Property or any part thereof or in connection with
the release of the Mortgaged Property following payment in full of the Debt.
52. Limitation on Recourse. The obligations of Trustor hereunder are
----------------------
subject to limitations on recourse as provided in Article XII of the Loan
Agreement.
53. Satisfaction of Deed of Trust. Upon payment of the Debt in full or
-----------------------------
upon satisfaction of the conditions to release of the Mortgaged Property from
the lien hereof in accordance with the terms of Section 11.4 of the Loan
Agreement, Beneficiary, at Trustor's sole cost and upon Trustor's request, shall
execute and deliver to Trustor a satisfaction or reconveyance of this Deed of
Trust, duly acknowledged and in recordable form, UCC-3 financing statements
terminating any UCC-1 financing statements filed by Beneficiary relating to the
Mortgaged Property, and such other documents or instruments as may be required
to release the lien of the Loan Documents from the Mortgaged Property.
[SIGNATURE PAGE FOLLOWS]
26
IN WITNESS WHEREOF, Trustor has executed this instrument as of the day
and year first above written.
TRUSTOR:
-------
VENTAS FINANCE I, LLC, a Delaware limited
liability company
By: /s/ T. Xxxxxxx Xxxxx
-------------------------------
Name: T. Xxxxxxx Xxxxx
Title: Executive Vice President
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the 11 day of December, 2001, before me, Xxxxx X. Xxxxxx, Notary
Public, personally appeared T. Xxxxxxx Xxxxx, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me all that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxx X. Xxxxxx
--------------------
Notary Public
My commission expires: 2/22/02
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[Notarial Seal]
Xxxxx X. Xxxxxx
Notary Public, State of New York
No. 01BA037540
