SECOND DEED OF TRUST, SECURITY AGREEMENT, FINANCING STATEMENT, AND ASSIGNMENT OF RENTAL
Exhibit
10.5
UPON
RECORDING, RETURN TO:
Credit
Union Liquidity Services, LLC
000 Xxxx
Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx,
Xxxxx 00000
Attention: Xx.
Xxxx Xxxxxxx
THIS
INSTRUMENT SHALL ALSO
CONSTITUTE
A FIXTURE FILING
SECOND DEED OF TRUST,
SECURITY AGREEMENT, FINANCING
STATEMENT, AND ASSIGNMENT OF
RENTAL
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THE
STATE OF COLORADO
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§
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§
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KNOW
ALL PERSONS BY THESE PRESENTS:
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COUNTY
OF SAN XXXXXX
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§
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THIS
SECOND DEED OF TRUST, SECURITY AGREEMENT, FINANCING STATEMENT, AND ASSIGNMENT OF
RENTAL is executed on the date of acknowledgment to be effective as of October
1, 2009, by BEHRINGER HARVARD MOUNTAIN VILLAGE, LLC, a Colorado limited
liability company, whose address is 00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxx 00000 ("Grantor"), to the
Public Trustee of San Xxxxxx County, Colorado ("Trustee"), for the
benefit of CREDIT UNION LIQUIDITY SERVICES, LLC, a Texas limited liability
company formerly known as Texans Commercial Capital, LLC ("Beneficiary"), whose
address is 000 X. Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxx
00000.
WITNESSETH:
WHEREAS,
Behringer Harvard Mockingbird Commons, LLC (“Borrower”), a Texas
limited liability company, an affiliate of Grantor, is indebted to Beneficiary
pursuant to that certain Construction Loan Agreement dated as of September 30,
2005, pursuant to which Beneficiary loaned to Borrower (the “Mockingbird Commons
Loan”) up to the principal sum of $34,047,458.00 (as amended, the “Mockingbird Commons Loan
Agreement”) as further evidenced by that certain promissory note dated as
of September 30, 2005 in the original principal amount of $34,047,458.00,
executed by Borrower and payable to the order of Beneficiary (as now or
hereafter amended, renewed or extended, the “Mockingbird Commons
Note”); and
WHEREAS,
the Mockingbird Commons Note has previously been amended by (i) that certain
First Amendment to Note and Construction Loan Agreement dated as of September
24, 2008 executed by Borrower and Lender, and (ii) that certain Second Amendment
to Construction Loan Agreement dated as of March 20, 2009 executed by Borrower
and Lender; and
WHEREAS,
Borrower has requested a significant restructure of the terms and conditions of
the Mockingbird Commons Note and Mockingbird Commons Loan Agreement in order to
enable Borrower to continue to comply with such agreements;
and
CULS
/ Behringer Harvard Mountain Village
Second
Deed of Trust, Security Agreement, Financing
Statement
and Assignment of Rental
1
Exhibit
10.5
WHEREAS,
Borrower has requested that Grantor execute and deliver this Deed of Trust to
further secure Borrower’s obligations under the Mockingbird Commons Note and
Mockingbird Commons Loan Agreement, and Grantor has agreed to do so and has
determined that, due to the relationship between Borrower and Grantor, it is in
Grantor’s best interests to execute and deliver this Deed of Trust;
WHEREAS,
due to the significant common ownership between Borrower and Grantor, Grantor
will obtain a direct or indirect material financial benefit as a result of
Grantor executing and delivering this Deed of Trust and Beneficiary’s
willingness to agree to a restructure of the Mockingbird Commons Note and
Mockingbird Commons Loan Agreement pursuant to that certain Third Modification
to Note and Construction Loan Agreement of even date herewith.
ARTICLE
I
DEFINITIONS
Section 1.1. As
used herein, the following terms shall have the definitions assigned to them as
follows:
"Beneficiary" has the
meaning assigned to it in the preamble hereof.
"Borrower" means
Behringer Harvard Mockingbird Commons, LLC, a Texas limited liability
company.
"Code" means the
Uniform Commercial Code as adopted in the state of Colorado.
"Collateral" means all
of Grantor’s right, title, and interest, now owned or hereafter acquired, in and
to the following described properties and interests:
(1) All
portions of the Personal Property which are either fixtures or personal
property, tangible or intangible; and
(2) All
building materials, equipment, machinery and other items of personal property of
any kind or character now or hereafter related to, situated upon or used, or
acquired for use, upon or in connection with any part of the Real Estate;
and
(3) All
revenues, receipts, income, accounts, accounts receivable and other receivables
arising under, out of, in connection with or related to the Real Estate and
including, without limitation, revenues, receipts, income, receivables and
accounts relating to or arising from rentals and rent equivalent income and time
share income; and
(4) All
insurance, accounts, inventory, instruments, chattel paper, documents, consumer
goods, insurance proceeds, Leases, contract rights and general intangibles now,
or hereafter related to, any of the Real Estate, including, without limitation,
the following:
CULS
/ Behringer Harvard Mountain Village
Second
Deed of Trust, Security Agreement, Financing
Statement
and Assignment of Rental
2
Exhibit
10.5
(A) All
contracts now or hereafter entered into by and between Grantor, as owner, and
any contractor, or any other party, as well as all right, title, and interest of
Grantor in, to, and under any subcontracts, providing for the construction
(original, restorative or otherwise) of any of the Improvements, and of any
other buildings, structures or improvements to, or on, the Real Estate (or any
part thereof), or the furnishing of any materials, supplies, equipment, or labor
in connection with any such construction;
(B) All
of the plans, specifications, and drawings (including, without limitation, plot
plans, foundation plans, utility facilities plans, floor plans, elevations
plans, framing plans, cross-sections of walls plans, mechanical plans,
electrical plans, architectural and engineering plans and specifications, and
architectural and engineering studies and analyses) heretofore or hereafter
prepared by any architect or engineer with respect to any of the Real
Estate;
(C) All
agreements now or hereafter entered into with any party with respect to
architectural, engineering, management, brokerage, promotional, marketing, or
consulting services rendered or to be rendered, with respect to the planning,
design, inspection, or supervision of the construction, development, management,
marketing, promotion, leasing, operation, or sale of any of the Real
Estate;
(D) Any
completion bonds, performance bonds, labor and material payment bonds, and any
other bonds (and the proceeds therefrom) relating to any of the Real Estate or
to any contract providing for construction of any of the Improvements or any
other buildings, structures, or improvements to, or on, any of the Real
Estate;
(E) All
rights or awards due to Grantor arising out of any eminent domain proceedings
for the taking or for loss of value of any of the Real Estate;
(F) All
Rentals;
(G) All
of Grantor’s right, title and interest in and to all trademarks, trade names, or
symbols under which any of the Real Estate is operated or the business of
Grantor at the Real Estate is conducted and all agreements now or hereafter
entered into by Grantor with respect thereto;
(H) All
revenues, receipts, income, accounts, accounts receivable and other receivables
arising out of the leasing or operation of, or the business conducted at or in
relation to, any of the Real Estate;
(I) All
monetary deposits which Grantor has been, or may be, required to give to any
public or private utility with respect to utility services furnished, or to be
furnished, to the Real Estate;
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/ Behringer Harvard Mountain Village
Second
Deed of Trust, Security Agreement, Financing
Statement
and Assignment of Rental
3
Exhibit
10.5
(J) All
rights to payment from any consumer credit/charge card organization or entity
(such as or similar to the organizations or entities which sponsor and
administer the American Express, Xxxxx Xxxxxxx, Diner’s Club, Visa, the Discover
Card and MasterCard cards);
(K) All
contracts of sale and options relating to the disposition of any of the Real
Estate;
(L) All
products and proceeds arising by virtue of any transaction related to the
disposition of any of the Mortgaged Property;
(M) All
deposits of cash, securities, or other property which may be held at any time,
and from time to time, by Grantor to secure the performance by each Lessee of
such Lessee’s covenants, agreements, and obligations under any
Lease;
(N) To
the extent assignable, all permits, licenses (including, without limitation,
liquor licenses), franchises, certificates, and other rights and privileges
obtained by Grantor in connection with the Mortgaged Property;
(O) The
balance of every deposit account (now or hereafter existing) of Grantor with
Beneficiary (or any agent, affiliate, or subsidiary of Beneficiary) and any
other claim of Grantor against Beneficiary (now or hereafter existing) and all
money, instruments, securities, documents, chattel paper, credits, demands, and
any other property, rights, or interests of Grantor which at any time shall come
into the possession, custody, or control of Beneficiary (or any agent,
affiliate, or subsidiary of Beneficiary);
(P) All
proceeds payable or to be payable under each policy of insurance relating to the
Real Estate and/or the Personal Property;
(Q) the
Declarant Rights; and
(R) All
books, records, computer programs, tapes, discs, computer software and other
like records and information evidencing, securing, relating to or concerning the
Real Estate, the Personal Property, and the property described in clauses (1),
(2), (3) and (4) (A) through (Q), above (but excluding Grantor’s income tax
returns and similar financial records pertaining to Grantor);
(5) All
leases, licenses, security agreements, and all other contracts and agreements
governing or relating to Grantor’s ownership, use, operation or sale of any of
the Mortgaged Property, to the extent not otherwise included; and
(6) All
payments under insurance (whether or not Beneficiary is the loss payee thereof)
or any indemnity, warranty or guaranty, payable by reason of loss or damage to
or otherwise with respect to any of the foregoing, to the extent not otherwise
included; and
CULS
/ Behringer Harvard Mountain Village
Second
Deed of Trust, Security Agreement, Financing
Statement
and Assignment of Rental
4
Exhibit
10.5
(7) All
replacements and substitutes for, all products and proceeds of, and all
accessions to, the foregoing.
"Declarant Rights"
means all rights of Grantor as Declarant pursuant to any Condominium Declaration
(as defined in Section
6.1).
"Deed of Trust" means
this Deed of Trust, Security Agreement, Financing Statement and Assignment of
Rental, including all exhibits attached hereto, as the same may, at any time and
from time to time, be renewed, extended, modified and/or increased.
"Event of Default" has
the meaning set forth in Section 3.1 hereof.
"Governmental
Authority" means any governmental authority, the United States of
America, any state of the United States of America, and any subdivision of any
of the foregoing, and any agency, department, commission, board, authority or
instrumentality, bureau or court having jurisdiction over the Mortgaged
Property, or over Grantor or any occupant or user of the Mortgaged Property, or
any of their respective businesses, operations, assets or
properties.
"Grantor" has the
meaning assigned to it in the preamble hereof.
"Grantor’s Successors"
means each and all of the heirs, executors, administrators, legal
representatives, successors, and assigns of Grantor, both immediate and
remote.
"Improvements" means
the Residential Condominium (as defined in the Mountain Village Loan Agreement)
and the improvements and amenities associated therewith and all buildings and
improvements now or hereafter situated on or in connection with the
Land.
"Land" means all of
that certain tract of real property located in San Xxxxxx County, Colorado, more
particularly described upon Exhibit
A attached hereto, together with all rights, privileges, tenements,
hereditaments, rights-of-way, easements, appendages, projections, and
appurtenances thereto.
"Lease" means any
ground lease, space lease, sublease or other agreement (oral or written) under
the terms of which any person other than Grantor has or acquires any right to
occupy, use, or manage the Mortgaged Property, or any part thereof, or interest
therein.
"Lessee" means each
lessee, sublessee, tenant, guest or other Person having the right to occupy,
use, or manage the Mortgaged Property, or any part thereof, under a
Lease.
"Mortgaged Property"
means the Land, Improvements, Personal Property and the Collateral,
collectively.
"Mockingbird Commons Loan
Agreement" has the meaning given such term in the recitals
hereof.
CULS
/ Behringer Harvard Mountain Village
Second
Deed of Trust, Security Agreement, Financing
Statement
and Assignment of Rental
5
Exhibit
10.5
"Mockingbird Commons Loan
Documents" means the Mockingbird Commons Note, the Mockingbird Commons
Loan Agreement, this Deed of Trust, together with all loan agreements, security
agreements, deeds of trust, collateral pledge agreements, assignments,
guaranties or contracts evidencing, or securing the loan evidenced by, the
Mockingbird Commons Note, as they may, at any time and from time to time, be
amended, renewed, extended, increased, supplemented and/or
restated.
"Mockingbird Commons
Note" has the meaning given such term in the recitals hereof, it being
acknowledged that concurrently with the execution of this Deed of Trust the
Mockingbird Commons Note is being amended by that certain Third Amendment to
Note and Construction Loan Agreement dated as of October 1, 2009, executed by
Borrower and Lender, pursuant to which, among other things, the maturity date of
the Mockingbird Commons Note is being extended to October 1, 2011.
"Mountain Village First Deed
of Trust" means that certain Deed of Trust, Security Agreement, Financing
Statement and Assignment of Rental, including all exhibits attached thereto,
dated September 29, 2006, recorded October 12, 2006 at Reception No. 387559, as
amended by that certain First Amendment to Deed of Trust, Security Agreement,
Financing Statement and Assignment of Rental, including all exhibits attached
thereto, recorded October 1, 2008 at Reception No. 404057, as the same may, at
any time and from time to time, be renewed, extended, modified and/or
increased.
"Mountain Village
Loan" means the indebtedness and obligations of Grantor evidenced by the
Mountain Village Loan Documents.
"Mountain Village Loan
Agreement" means that certain Loan Agreement dated September 29, 2006
between Grantor and Beneficiary, as it has been and may, at any time and from
time to time, be amended, supplemented or restated.
"Mountain Village Loan
Documents" means the Mountain Village Note, the Mountain Village Loan
Agreement and the Mountain Village First Deed of Trust, together with all loan
agreements, security agreements, deeds of trust, collateral pledge agreements,
assignments, guaranties or contracts evidencing, or securing the loan evidenced
by the Mountain Village Note, as they may, at any time and from time to time, be
amended, renewed, extended, increased, supplemented and/or
restated.
"Mountain Village
Note" means that certain promissory note dated September 29, 2006,
executed by Grantor and payable to the order of Beneficiary, as it has been and
may, at any time and from time to time, be renewed, extended, modified,
increased, supplemented or restated.
"Permitted Exceptions"
means those items shown upon Schedule B of the Mortgagee Policy of Title
Insurance obtained by Beneficiary in connection with this Deed of
Trust.
"Personal Property"
means all fixtures and building materials and, to the extent, if any, owned by
Grantor, machinery, equipment, furniture, furnishings, inventory, and personal
property, and all renewals, replacements and substitutions therefor and
additions thereto, in which Grantor now has, or at any time hereafter acquires,
an interest, and which now, or at any time hereafter, are situated on the Land
or the Improvements.
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/ Behringer Harvard Mountain Village
Second
Deed of Trust, Security Agreement, Financing
Statement
and Assignment of Rental
6
Exhibit
10.5
"Real Estate" means
the Land, the Improvements, the Personal Property, the Leases, the Rental, the
Declarant Rights, and all other estates, easements, licenses, interests, rights,
titles, powers and privileges of every kind and character which Grantor now has
or at any time hereafter acquires, in and to the Land, the Improvements, the
Personal Property, and the proceeds of any and all insurance covering the Land,
the Improvements, the Leases, the Rental or the Personal Property.
"Rental" means all
rents, issues, profits, royalties, bonuses, revenue, receipts, income, accounts,
accounts receivable and other receivables, and other benefits derived from the
Mortgaged Property or arising from the use or enjoyment of any portion thereof
or from any Lease and including, without limitation, all revenues, receipts,
income, receivables and accounts relating to or arising from rentals and rent
equivalent income; all liquidated damages following defaults under any Lease;
all proceeds payable under any policy of insurance covering loss of rents,
issues, profits, royalties, bonuses, revenue, receipts, income, accounts,
accounts receivable and other receivables, and other benefits; and any and all
rights which Grantor may have against any Lessee or against any other Person
under or in connection with any Lease.
"Secured Indebtedness"
means:
(a) The
indebtedness, liabilities, indemnities and obligations of Borrower arising under
the Mockingbird Commons Note, Mockingbird Commons Loan Agreement, and other
Mockingbird Commons Loan Documents;
(b) Any
and all renewals, extensions, modifications, rearrangements, or restatements of
and supplements to all or any part of the liabilities and obligations described
or referred to in subparagraph (a) above, together with all costs, expenses,
reasonable attorneys’ fees and litigation costs incurred in connection with the
enforcement or collection thereof; provided, however, that this Deed of Trust
shall secure a maximum of, and the Secured Indebtedness shall in no event
exceed, (other than all costs, expenses, reasonable attorneys’ fees and
litigation costs incurred in connection with the enforcement or collection
thereof), the amount of Twelve Million Six Hundred Thousand Dollars
($12,600,000.00) and shall be subject to reduction as set forth in that certain
Third Amendment to Note and Construction Loan Agreement of even date herewith
executed between Borrower and Beneficiary relating to the Mockingbird Commons
Loan.
"Trustee" has the
meaning assigned to it in the preamble.
Section 1.2. All
capitalized terms not otherwise defined herein shall have the meaning assigned
to them in the Loan Agreement.
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/ Behringer Harvard Mountain Village
Second
Deed of Trust, Security Agreement, Financing
Statement
and Assignment of Rental
7
Exhibit
10.5
ARTICLE
II
GRANT
Section
2.1.
(a) For
good and valuable consideration, including Beneficiary’s agreement to enter into
that certain Third Modification to Note and Construction Loan Agreement of even
date herewith relating to the Mockingbird Commons Loan and the trust hereinafter
described, the receipt and legal sufficiency of which are hereby expressly
acknowledged by all parties, Grantor does hereby GRANT, BARGAIN, SELL, TRANSFER,
ASSIGN, AND CONVEY unto Trustee IN TRUST FOREVER, WITH POWER OF SALE for the
benefit and security of Beneficiary, the Mortgaged Property, subject only to the
Permitted Exceptions.
TO HAVE
AND TO HOLD the Mortgaged Property, together with all and singular the rights,
hereditaments, and appurtenances in anywise appertaining or belonging thereto,
unto Trustee and Trustee’s successors or substitutes in this trust, and
Trustee’s and its or his successors and assigns, in trust, and for the uses and
purposes hereinafter set forth, forever.
(b) This
Deed of Trust shall also constitute a security agreement with respect to, and
Grantor hereby grants to Beneficiary a security interest in, the
Collateral. This Deed of Trust shall constitute a "fixture filing"
for purposes of Chapter 9 of the Code. Portions of the Collateral are
or may become fixtures. Information concerning the security interests
herein granted may be obtained at the addresses stated in the introductory
paragraph of this Deed of Trust.
(c) To
the extent that any of the Collateral is not subject to the Uniform Commercial
Code of the state or states where it is situated, Grantor hereby assigns to
Beneficiary all of Grantor’s right, title, and interest in and to the Collateral
to secure the Secured Indebtedness, together with the right of set-off with
regard to such Collateral (or any part hereof). Release of the lien
of this Deed of Trust shall automatically terminate this
assignment.
Section 2.2. Grantor,
for Grantor and Grantor’s Successors, hereby agrees to warrant and forever
defend, all and singular, title to the Mortgaged Property unto Trustee, and
Trustee’s successors or substitutes in this trust, forever, against every person
whomsoever lawfully claiming, or to claim, the same or any part thereof,
subject, however, to the Permitted Exceptions.
Section 2.3. This
Deed of Trust, and all rights, remedies, powers, privileges, and benefits, and
all titles, interests, liens, and security interests created hereby, or arising
by virtue hereof, are given to secure payment and performance of the Secured
Indebtedness.
Section 2.4. A
carbon, photographic, or other reproduction of this Deed of Trust, or any
financing statement relating to this Deed of Trust, shall be sufficient as a
financing statement.
CULS
/ Behringer Harvard Mountain Village
Second
Deed of Trust, Security Agreement, Financing
Statement
and Assignment of Rental
8
Exhibit
10.5
ARTICLE
III
RESPECTING DEFAULTS AND
REMEDIES OF BENEFICIARY
Section 3.1. The
term "Event of
Default" as used in this Deed of Trust shall mean either (i) the
occurrence of an Event of Default, as such term is defined in the Mockingbird
Commons Loan Agreement, or (ii) the occurrence of an Event of Default, as such
term is defined in the Mountain Village Loan Agreement.
Section 3.2. Upon
the occurrence of an Event of Default, Beneficiary may, at Beneficiary’s option,
and in addition to exercising any remedies it may have under the Mockingbird
Commons Loan Documents if the Event of Default is pursuant to Section 3.1(i)
above, do any one or more of the following:
(a) If
Grantor has failed to keep or perform any covenant whatsoever contained in this
Deed of Trust, Beneficiary may, but shall not be obligated to any person to,
perform or attempt to perform said covenant, and any payment made or expense
incurred in the performance or attempted performance of any such covenant shall
be a part of the Secured Indebtedness, and Grantor promises, upon demand, to pay
to Beneficiary, at the place where the Mountain Village Note is payable, or at
such other place as Beneficiary may direct by written notice, all sums so
advanced or paid by Beneficiary, with interest at the Default Rate (as defined
in the Mockingbird Commons Loan Agreement) from the date when paid or incurred
by Beneficiary. No such payment by Beneficiary shall constitute a
waiver of any Event of Default. In addition to the liens and security
interests hereof, Beneficiary shall be subrogated to all rights, titles, liens,
and security interests securing the payment of any debt, claim, tax, or
assessment for the payment of which Beneficiary may make an advance, or which
Beneficiary may pay.
(b) If
an Event of Default occurs pursuant to Section 3.1(ii) above or arising solely from
Borrower’s or Grantor’s failure to comply with the provisions of this Deed of
Trust, then Beneficiary may, at its option, declare a portion of the Mockingbird
Commons Note to be immediately due and payable without presentment, demand,
protest, notice of protest and non-payment, or other notice of default, notice
of acceleration and intention to accelerate or other notice of any kind, all of
which are expressly waived by Grantor and Borrower, such portion to be in an
amount equal to or less than the Secured Indebtedness and determined by
Beneficiary in its sole and absolute discretion, it being the intent and
agreement of the parties that such portion of the Mockingbird Commons Note, if
any, specifically declared by Beneficiary under this Section 3.2(b) to be
immediately due and payable may be recovered only through the exercise of
remedies against the Mortgaged Property under this Deed of Trust. If
an Event of Default occurs pursuant to Section 3.1(i) above (other than an
Event of Default arising solely from
Borrower’s or Grantor’s failure to comply with the provisions of this Deed of
Trust), then, as already provided in the Mockingbird Commons Loan Agreement,
Beneficiary may, at its option, declare the Mockingbird Commons Note to be
immediately due and payable without presentment, demand, protest, notice of
protest and non-payment, or other notice of default, notice of acceleration and
intention to accelerate or other notice of any kind, all of which are expressly
waived by Grantor and Borrower. Notwithstanding the foregoing or
anything to the contrary, as already provided in the Mockingbird Commons Loan
Agreement, if any Event of Default specified in Article VII(d) or (e) of the
Mockingbird Commons Loan Agreement shall occur, the Mockingbird Commons Note and
the remaining Secured Indebtedness shall thereupon become due and payable
concurrently therewith, without any further action by Beneficiary and without
presentment, demand, protest, notice of protest and non-payment, or other notice
of default, notice of acceleration and intention to accelerate or other notice
of any kind, all of which are expressly waived by Grantor and
Borrower.
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/ Behringer Harvard Mountain Village
Second
Deed of Trust, Security Agreement, Financing
Statement
and Assignment of Rental
9
Exhibit
10.5
(c) Beneficiary
may foreclose this Deed of Trust, insofar as it encumbers the Mortgaged
Property, either by judicial action or through a public trustee foreclosure sale
through the Trustee. If this Deed of Trust encumbers more than one
parcel of real estate, foreclosure may be by separate parcel or en masse, as
Beneficiary may elect in its sole discretion. Foreclosure through
Trustee will be initiated by Beneficiary’s filing of its notice of election and
demand for sale with Trustee. Upon the filing of such notice of
election and demand for sale, Trustee shall promptly comply with all notice and
other requirements of the laws of Colorado then in force with respect to such
sales, and shall give four weeks’ public notice of the time and place of such
sale by advertisement weekly five times in some newspaper of general circulation
then published in San Xxxxxx County, Colorado. Any sale conducted by
Trustee pursuant to this section shall be held at the front door of the county
courthouse for San Xxxxxx County, Colorado, or on the Mortgaged Property, or at
such other place as similar sales are then customarily held in San Xxxxxx
County, Colorado, provided that the actual place of sale shall be specified in
the notice of sale. All fees, costs and expenses of any kind incurred
by Beneficiary in connection with foreclosure of this Deed of Trust, including,
without limitation, the costs of any appraisals and environmental evaluations of
the Mortgaged Property obtained by Beneficiary, all costs of any receivership
for the Mortgaged Property advanced by Beneficiary, and all attorneys’, legal
assistants’ and consultants’ fees incurred by Beneficiary, shall constitute a
part of the Secured Indebtedness and may be included as part of the Secured
Indebtedness owed to Beneficiary at any foreclosure sale. The
proceeds of any sale under this section shall be applied first to the fees and
expenses of the officer conducting the sale, and then to the reduction or
discharge of the Secured Indebtedness (whether or not then due and payable); any
surplus remaining shall be paid over to Grantor or to such other person or
persons as may be lawfully entitled to such surplus. At the
conclusion of any foreclosure sale, the officer conducting the sale shall
execute and deliver to the purchaser at the sale a certificate of purchase which
shall describe the Mortgaged Property sold to such purchaser and shall state
that upon the expiration of the applicable periods for redemption, the holder of
such certificate will be entitled to a deed to the Mortgaged Property described
in the certificate. After the expiration of all applicable periods of
redemption, unless the Mortgaged Property sold has been redeemed by Grantor, the
officer who conducted such sale shall, upon request, execute and deliver an
appropriate deed to the holder of the certificate of purchase or the last
certificate of redemption, as the case may be. Nothing in this
section dealing with foreclosure procedures or specifying particular actions to
be taken by Beneficiary or by Trustee or any similar officer shall be deemed to
contradict or add to the requirements and procedures now or hereafter specified
by Colorado law, and any such inconsistency shall be resolved in favor of
Colorado law applicable at the time of foreclosure.
CULS
/ Behringer Harvard Mountain Village
Second
Deed of Trust, Security Agreement, Financing
Statement
and Assignment of Rental
10
Exhibit
10.5
(d) Beneficiary
shall be entitled, as a matter of absolute right and without regard to the value
of any security for the Secured Indebtedness or the solvency of any person
liable therefor, to the appointment of a receiver for the Mortgaged Property
upon ex-parte application to any court of competent
jurisdiction. Grantor waives any right to any hearing or notice of
hearing prior to the appointment of a receiver. Such receiver and his
agents shall be empowered (i) to take possession of the Mortgaged Property and
any businesses conducted by Grantor or any other person thereon and any business
assets used in connection therewith and, if the receiver deems it appropriate,
to operate the same, (ii) to exclude Grantor and Grantor’s agents, servants, and
employees from the Mortgaged Property, (iii) to collect the rents, issues,
profits, and income therefrom, (iv) to complete any construction which may be in
progress, (v) to do such maintenance and make such repairs and alterations as
the receiver deems necessary, (vi) to use all stores of materials, supplies, and
maintenance equipment on the Mortgaged Property and replace such items at the
expense of the receivership estate, (vii) to pay all taxes and assessments
against the Mortgaged Property and the Collateral, all premiums for insurance
thereon, all utility and other operating expenses, and all sums due under any
prior or subsequent encumbrance, and (viii) generally to do anything which
Grantor could legally do if Grantor were in possession of the Mortgaged
Property. All expenses incurred by the receiver or his agents shall
constitute a part of the Secured Indebtedness. Any revenues collected
by the receiver shall be applied first to the expenses of the receivership,
including attorneys’ fees incurred by the receiver and by Beneficiary, together
with interest thereon at the default rate, as set forth in the Mockingbird
Commons Note, from the date incurred until repaid, and the balance shall be
applied toward the Secured Indebtedness or in such other manner as the court may
direct. Unless sooner terminated with the express consent of
Beneficiary, any such receivership will continue until the Secured Indebtedness
has been discharged in full, or until title to the Mortgaged Property has passed
after foreclosure sale and all applicable periods of redemption have
expired.
(e) It
is intended by each of the foregoing provisions of Subsection 3.2I and
Subsection
3.2(d) that Trustee may, after any request or direction by Beneficiary,
sell not only the Real Estate but also the Collateral and other interests
constituting a part of the Mortgaged Property, or any part thereof, along with
the Real Estate, or any part thereof, all as a unit and as a part of a single
sale, or may sell any part of the Mortgaged Property separately from the
remainder of the Mortgaged Property. The sale or sales by Trustee of
less than the whole of the Mortgaged Property shall not exhaust the power of
sale herein granted, and Trustee is specifically empowered to make successive
sale or sales under such power until the whole of the Mortgaged Property shall
be sold; and if the proceeds of such sale or sales of less than the whole of
such Mortgaged Property shall be less than the aggregate of the Secured
Indebtedness and the expense of executing this trust, this Deed of Trust and the
assignments, liens, and security interests hereof shall remain in full force and
effect as to the unsold portion of the Mortgaged Property just as though no sale
or sales of less than the whole of the Mortgaged Property had occurred, but
Beneficiary shall have the right, at its sole election, to request Trustee to
sell less than the whole of the Mortgaged Property.
CULS
/ Behringer Harvard Mountain Village
Second
Deed of Trust, Security Agreement, Financing
Statement
and Assignment of Rental
11
Exhibit
10.5
(f) Grantor
and Beneficiary agree that, in any assignments, deeds, bills of sale, notices of
sale, or postings, given by Trustee or Beneficiary, any and all statements of
fact or other recitals therein made as to the identity of Beneficiary, or as to
the occurrence or existence of any Event of Default, or as to the maturity of
the Secured Indebtedness, or as to the request to sell, posting of notice of
sale, notice of sale, time, place, terms and manner of sale and receipt,
distribution and application of the money realized therefrom, or as to the due
and proper appointment of a substitute trustee and without being limited by the
foregoing, as to any other act or thing having been duly done by Beneficiary or
by Trustee, shall be taken by all courts of law and equity as prima facie
evidence that the said statements or recitals state facts, and Grantor does
hereby ratify and confirm any and all acts that Trustee may lawfully do in the
premises by virtue hereof.
(g) Beneficiary
may, or Trustee may upon written request of Beneficiary, proceed by suit or
suits, at law or in equity, to enforce the payment and performance of the
Secured Indebtedness in accordance with the terms hereof or of the Mockingbird
Commons Note or other Mockingbird Commons Loan Documents, to foreclose or
otherwise enforce the assignments, liens, and security interests created or
evidenced by 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.
(h) To
the maximum extent permitted by law, Beneficiary, as a matter of right without
notice to Grantor and without regard to the sufficiency of the security, and
without any showing of insolvency, fraud, or mismanagement on the part of
Grantor, and without the necessity of filing any judicial or other proceeding
other than the proceeding for appointment of a receiver, shall be entitled to
the appointment of a receiver or receivers of the Mortgaged Property, or any
part thereof, and of the income, rents, issues, profits, revenues, receipts,
accounts, accounts receivable and other receivables thereof.
(i) To
the maximum extent permitted by law, Beneficiary may enter upon the Land, take
possession of the Mortgaged Property and remove the Collateral or any part
thereof, with or without judicial process, and, in connection therewith, without
any responsibility or liability on the part of Beneficiary, take possession of
any property located on or in the Real Estate which is not a part of the
Mortgaged Property and hold or store such property at Grantor’s
expense.
(j) Beneficiary
may require Grantor to assemble the Collateral, or any part thereof, and make it
available to Beneficiary at a place to be designated by Beneficiary which is
reasonably convenient to Grantor and Beneficiary.
(k) After
notification, if any, hereafter provided in this Subsection, Beneficiary may, or
the Trustee may, upon request of Beneficiary, sell, lease, or otherwise dispose
of, at the office of Beneficiary, or on the Land, or elsewhere as chosen by
Beneficiary, all or any part of the Collateral, in its then condition, or
following any commercially reasonable preparation or processing, and each “Sale” (as used
herein, the term “Sale” means any such
sale, lease, or other disposition made pursuant to this Subsection 3.2(k))
may be as a unit or in parcels, by public or private proceedings, and by way of
one or more contracts, and, at any Sale, it shall not be necessary to exhibit
the Collateral, or part thereof, being sold. The Sale of any part of
the Collateral shall not exhaust Beneficiary’s power of Sale, but Sales may be
made, from time to time, until the Secured Indebtedness is paid and performed in
full. Reasonable notification of the time and place of any public
Sale pursuant to this Subsection, or reasonable notification of the time after
which any private Sale is to be made pursuant to this Subsection, shall be sent
to Grantor and to any other person entitled to notice under Chapter 9 of the
Code; provided, that if the Collateral being sold, or any part thereof, is
perishable, or threatens to decline speedily in value, or is of a type
customarily sold on a recognized market, Beneficiary may sell, lease, or
otherwise dispose of such Collateral without notification, advertisement or
other notice of any kind. It is agreed that notice sent or given not
less than ten (10) calendar days prior to the taking of the action to which the
notice relates, is reasonable notification and notice for the purposes of this
Subsection.
CULS
/ Behringer Harvard Mountain Village
Second
Deed of Trust, Security Agreement, Financing
Statement
and Assignment of Rental
12
Exhibit
10.5
(l) Beneficiary
may surrender the insurance policies maintained in respect of the Mortgaged
Property, or any part thereof, and receive and apply the unearned premiums as a
credit on the Secured Indebtedness, and, in connection therewith, Grantor hereby
appoints Beneficiary (or any officer of Beneficiary), as the true and lawful
agent and attorney-in-fact for Grantor (with full powers of substitution), which
power of attorney shall be deemed to be a power coupled with an interest and
therefore irrevocable, to collect such premiums.
(m) Beneficiary
may retain the Collateral in satisfaction of the Secured Indebtedness whenever
the circumstances are such that Beneficiary is entitled to do so under the
Code.
(n) Beneficiary
may buy the Mortgaged Property, or any part thereof, at any public Sale or
judicial Sale (including any Sale of the Collateral as contemplated in Subsection 3.2(k)
hereof).
(o) Beneficiary
may buy the Collateral, or any part thereof, at any private Sale if the
Collateral, or part thereof, being sold is a type customarily sold in a
recognized market or a type which is the subject of widely distributed standard
price quotations.
(p) Beneficiary
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 other security
instrument, or under the Code, or otherwise.
(q) Notwithstanding
anything contained herein to the contrary, Beneficiary may proceed under Chapter
9 of the Code as to any or all personal property covered hereby or, at
Beneficiary’s election, Beneficiary may proceed as to both the real and personal
property covered hereby in accordance with Beneficiary’s rights and remedies in
respect of real property, in which case the provisions of Chapter 9 of the Code
(and Subsection
3.2(k) hereof) shall not apply.
Section 3.3. If
Beneficiary is the purchaser of the Mortgaged Property, or any part thereof, at
any sale thereof (including any Sale of the Collateral as contemplated in Subsection 3.2(1)
hereof), whether such sale be under the power of sale hereinabove vested in
Trustee, or upon any other foreclosure or enforcement of the assignments, liens,
and security interests hereof, or otherwise, Beneficiary shall, upon any such
purchase, acquire good title to the Mortgaged Property so purchased, free of the
assignments, liens, and security interests of these presents.
CULS
/ Behringer Harvard Mountain Village
Second
Deed of Trust, Security Agreement, Financing
Statement
and Assignment of Rental
13
Exhibit
10.5
Section 3.4. Should
any part of the Mortgaged Property come into the possession of Beneficiary,
whether before or after the occurrence of an Event of Default, Beneficiary may
use or operate the Mortgaged Property for the purpose of preserving it or its
value, pursuant to the order of a court of appropriate jurisdiction, or in
accordance with any other rights held by Beneficiary with respect to the
Mortgaged Property. Grantor covenants to promptly reimburse and pay
to Beneficiary, at such place as may be designated by Beneficiary in writing,
the amount of all reasonable expenses (including the cost of any insurance,
taxes, or other charges) incurred by Beneficiary in connection with its custody,
preservation, use or operation of the Mortgaged Property, together with interest
thereon from the date incurred by Beneficiary at the Default Rate (as defined in
the Mockingbird Commons Loan Agreement), and all such expenses, cost, taxes,
interest, and other charges shall be a part of the Secured
Indebtedness. It is agreed, however, that the risk of accidental loss
or damage to the Mortgaged Property is undertaken by Grantor, and Beneficiary
shall have no liability whatever for decline in value of the Mortgaged Property,
nor for failure to obtain or maintain insurance, nor for failure to determine
whether any insurance ever in force is adequate as to amount or as to the risks
insured.
Section 3.5. If
the assignments, liens, or security interests hereof shall be foreclosed or
otherwise enforced by a Trustee’s sale, or by any other judicial or non-judicial
action, then the purchaser at any such sale shall receive, as an incident to his
ownership, immediate possession of that portion of the Mortgaged Property
purchased, and if Grantor or Grantor’s Successors shall hold possession of any
of said portion of the Mortgaged Property subsequent to such foreclosure,
Grantor and Grantor’s Successors shall be considered as tenants at sufferance of
the purchaser at such foreclosure sale, and anyone occupying the Mortgaged
Property (or any part thereof) after demand made for possession thereof shall be
guilty of forcible detainer and shall be subject to eviction and removal,
forcible or otherwise, with or without (to the maximum extent permitted by law)
process of law, and all damages by reason thereof are hereby expressly
waived.
Section 3.6. The
proceeds from any sale, lease or other disposition made pursuant to this Article III, or the
proceeds from surrendering any insurance policies pursuant to Subsection 3.2(m)
hereof, or any Rental collected by Beneficiary pursuant to Article IV hereof,
shall be applied by Trustee, or by Beneficiary, as the case may be, as follows:
FIRST, to the Secured Indebtedness, in such order and manner as is determined by
Beneficiary in its sole discretion, and SECOND, the balance, if any, remaining
after the full and final payment and performance of the Secured Indebtedness, to
Grantor, or as otherwise required by applicable law.
Section
3.7. This
instrument shall be effective as a mortgage as well as a deed of trust, and upon
the occurrence of an Event of Default may be foreclosed as to the Mortgaged
Property in any manner permitted by the laws of the State in which the Land is
located and any other state in which any part of the Mortgaged Property is
situated. Any foreclosure suit may be brought by Trustee or
Beneficiary. If a foreclosure hereunder is commenced by Trustee,
Beneficiary may, at any time before the sale, direct the Trustee to abandon the
sale, and may then institute suit for the collection of the Secured
Indebtedness, and for the foreclosure or enforcement of the assignments, liens,
and security interests hereof. If Beneficiary should institute a suit
for the collection of the Secured Indebtedness, and for a foreclosure or
enforcement of the assignments, liens, and security interests hereof, it may, at
any time before the entry of a final judgment in said suit, dismiss the same,
and require Trustee to sell the Mortgaged Property, or any part thereof, in
accordance with the provisions of this Deed of Trust.
CULS
/ Behringer Harvard Mountain Village
Second
Deed of Trust, Security Agreement, Financing
Statement
and Assignment of Rental
14
Exhibit
10.5
Section
3.8.
a. In
the event an interest in any of the Mortgaged Property is foreclosed upon
pursuant to a judicial or nonjudicial foreclosure sale, Borrower agrees that
notwithstanding the provisions of Sections 51.003, 51.004, and 51.005 of the
Texas Property Code (as the same may be amended from time to time), and to the
extent permitted by law, Beneficiary shall be entitled to seek a deficiency
judgment from Borrower and any other party obligated on the Secured Indebtedness
equal to the difference between the amount owing on the Secured Indebtedness and
the amount for which the Mortgaged Property was sold pursuant to judicial or
nonjudicial foreclosure sale. Borrower expressly waives any right of
offset to which Borrower might be entitled pursuant to those
statutes. Borrower recognizes that this section constitutes a waiver
of the above-cited provisions of the Texas Property Code which would otherwise
permit Grantor and other persons against whom recovery of deficiencies is sought
or any guarantor independently (even absent the initiation of deficiency
proceedings against them) to present competent evidence of the fair market value
of the Mortgaged Property as of the date of the foreclosure sale and offset
against any deficiency the amount by which the foreclosure sale price is
determined to be less than such fair market value. Borrower further
recognizes and agrees that this waiver creates an irrebuttable presumption that
the foreclosure sale price is equal to the fair market value of the Mortgaged
Property for purposes of calculating deficiencies owed by Borrower, any
guarantor, and others against whom recovery of a deficiency is
sought.
(b) Alternatively,
in the event the waiver provided for in subsection (a) above is determined by a
court of competent jurisdiction to be unenforceable, the following shall be the
basis for the finder of fact’s determination of the fair market value of the
Mortgaged Property as of the date of the foreclosure sale in proceedings
governed by Sections 51.003, 51.004 and 51.005 of the Texas Property Code (as
amended from time to time): (i) the Mortgaged Property shall be valued in an “as
is” condition as of the date of the foreclosure sale, without any assumption or
expectation that the Mortgaged Property will be repaired or improved in any
manner before a resale of the Mortgaged Property after foreclosure; (ii) the
valuation shall be based upon an assumption that the foreclosure purchaser
desires a resale of the Mortgaged Property for cash promptly (but no later than
twelve (12) months) following the foreclosure sale; (iii) all reasonable closing
costs customarily borne by the seller in commercial real estate transactions
should be deducted from the gross fair market value of the Mortgaged Property,
including, without limitation, brokerage commissions, title insurance, a survey
of the Mortgaged Property, tax prorations, attorneys’ fees, and marketing costs;
(iv) the gross fair market value of the Mortgaged Property shall be further
discounted to account for any estimated holding costs associated with
maintaining the Mortgaged Property pending sale, including, without limitation,
utilities expenses, property management fees, taxes and assessments (to the
extent not accounted for in (iii) above), and other maintenance, operational and
ownership expenses; and (v) any expert opinion testimony given or considered in
connection with a determination of the fair market value of the Mortgaged
Property must be given by persons having at least five (5) years experience in
appraising property similar to the Mortgaged Property and who have conducted and
prepared a complete written appraisal of the Mortgaged Property taking into
consideration the factors set forth above and taking into consideration the
Mountain Village First Deed of Trust, if applicable.
CULS
/ Behringer Harvard Mountain Village
Second
Deed of Trust, Security Agreement, Financing
Statement
and Assignment of Rental
15
Exhibit
10.5
ARTICLE
IV
LEASES AND ASSIGNMENT OF
RENTAL
Section
4.1. Grantor
hereby absolutely assigns to Beneficiary all Rental payable under each Lease now
or at any time hereafter existing, such assignment being upon the following
terms:
(a) until
Beneficiary notifies Grantor of an Event of Default, Grantor shall collect
Rental directly from each Lessee, and each Lessee shall pay Rental directly to
Grantor, but Grantor covenants to hold the Rentals in trust, to be applied, and
Grantor covenants to apply the Rentals, to the payment of (i) the Mountain
Village Note, (ii) the Secured Indebtedness, and (iii) reasonable and
necessary expenses and charges with respect to the ownership, maintenance and
operation of the Mortgaged Property, all before the Rentals are applied by
Grantor for any other purpose not inconsistent with the Loan
Agreement;
(b) upon
receipt by Grantor from Beneficiary of notice of the occurrence of an Event of
Default and that Rental shall be paid directly to Beneficiary, Grantor is hereby
directed to pay directly to Beneficiary all Rental thereafter accruing received
by Grantor;
I
upon receipt by
Grantor, the manager of the Mortgaged Property and/or any Lessee from
Beneficiary of notice of the occurrence of an Event of Default and that Rental
shall be paid directly to Beneficiary, Grantor, such manager and each Lessee
that receives notice of the occurrence of an Event of Default are hereby
authorized and directed by Grantor to pay directly to Beneficiary all Rental
thereafter accruing, and the receipt of Rental by Beneficiary shall be a release
of each such manager or Lessee to the extent of all amounts so paid to
Beneficiary;
(d) Rental
so received by Beneficiary shall be applied by Beneficiary, at its option, in
any order determined by Beneficiary in its sole and unreviewable discretion,
notwithstanding any instructions, directions or requests from Grantor, manager
or any Lessee to the contrary, to (i) the payment and performance of the Secured
Indebtedness and/or (ii) reasonable expenses of and charges with respect to the
ownership, maintenance and operation of the Mortgaged Property (and including,
at Beneficiary’s option, the maintenance, without interest thereon, of a
reasonable reserve for replacement); and
(e) Beneficiary
shall not be liable for Beneficiary’s failure to collect, or its failure to
exercise diligence in the collection of, Rental, but shall be accountable only
for Rental that it shall actually receive.
This
assignment is in addition and in supplement to, and Beneficiary’s rights and
remedies under this Article IV are
cumulative of, Beneficiary’s rights and remedies under any other document or
assignment concerning or applicable to each Lease now or at any time hereafter
existing or Rentals thereunder, or any part thereof.
CULS
/ Behringer Harvard Mountain Village
Second
Deed of Trust, Security Agreement, Financing
Statement
and Assignment of Rental
16
Exhibit
10.5
As
between Beneficiary and Grantor, and any person claiming through or under
Grantor, the assignment contained in this Section 4.1 is
intended to be absolute, unconditional and presently effective, and the
provisions of Subsection 4.1I are
intended solely for the benefit of the manager of the Mortgaged Property and
each Lessee and shall never inure to the benefit of Grantor or any person
claiming by, through or under Grantor, other than a manager or a Lessee who has
not received such notice. It shall not be necessary for Beneficiary
to institute legal proceedings of any kind whatsoever to enforce the provisions
of this Section
4.1.
Section
4.2. Nothing
in this Article
IV shall be construed as subordinating this Deed of Trust to any
Lease.
Section
4.3. In the
event that Beneficiary ever collects Rental, Beneficiary shall be entitled to
pay its agent as compensation for collecting such Rental, from sums so
collected, a reasonable fee.
Section
4.4. Grantor
consents to Beneficiary’s application of Rentals as provided in Section 4.1.(d),
and Grantor acknowledges and agrees that it is in Grantor’s best interest and
for Grantor’s benefit for Beneficiary to apply the Rentals as provided in Section
4.1.(d). Grantor shall not challenge or interfere with
Beneficiary’s application of Rentals as provided in Section 4.1.(d).
Section
4.5.
(a) Notwithstanding
any provision in this Deed of Trust to the contrary, upon full payment and
satisfaction of the Secured Indebtedness, this assignment of Rental shall
terminate. Written demand made by Beneficiary delivered to any Lessee
for payment of Rentals by reason of the occurrence of any Event of Default
claimed by Beneficiary shall be sufficient evidence of each such Lessee’s
obligation and authority to make all future payments of Rentals to Beneficiary
without the necessity for further consent by the Grantor. Grantor
hereby indemnifies and agrees to hold each Lessee free and harmless from and
against all liability, loss, cost, damage or expense suffered or incurred by
such Lessee by reason of its compliance with any demand for payment of Rentals
made by the Beneficiary contemplated by the preceding sentence.
(b) If
Beneficiary receives any Rentals as provided in this Article IV, then the
provisions of Section
5.17 shall apply to the Rentals received by Beneficiary.
ARTICLE
V
MISCELLANEOUS
Section
5.1. If
the Secured Indebtedness is paid in full and all obligations of Borrower under
the Mockingbird Commons Loan Documents are performed in full, or upon express,
written, recorded release of this Deed of Trust by Beneficiary, then this
conveyance shall become null and void and shall be released at Grantor’s request
and expense; otherwise, it shall remain in full force and effect.
CULS
/ Behringer Harvard Mountain Village
Second
Deed of Trust, Security Agreement, Financing
Statement
and Assignment of Rental
17
Exhibit
10.5
Section
5.2. As
used in this Article
V, “Rights” means rights,
remedies, powers and privileges, and “Liens” means all
assignments, titles, interests, liens, security interests, and other
encumbrances. All Rights and Liens herein expressly conferred are
cumulative of all other Rights and Liens herein, or by law or in equity
provided, or provided in any other security instrument, and shall not be deemed
to deprive Beneficiary or Trustee of any such other legal or equitable Rights
and Liens by judicial proceedings, or otherwise, appropriate to enforce the
conditions, covenants and terms of this Deed of Trust, the Mockingbird Commons
Note and the other Mockingbird Commons Loan Documents, and the employment of any
Rights hereunder, or otherwise, shall not prevent the concurrent or subsequent
employment of any other appropriate Rights.
Section
5.3. Any
and all covenants in this Deed of Trust may from time to time, by instrument in
writing signed by Beneficiary and delivered to Grantor, be waived to such extent
and in such manner as Beneficiary may desire, but no such waiver shall ever
affect or impair Beneficiary’s Rights or Liens hereunder, except to the extent
so specifically stated in such written instrument. Impossibility
shall not excuse the performance of any covenant or condition in this Deed of
Trust.
Section
5.4. Without
waiving any right of Beneficiary arising out of a breach by Grantor of Grantor’s
obligations and covenants under this Deed of Trust or a breach by Borrower of
Borrower’s obligations and covenants under the Mockingbird Commons Loan
Documents, if Grantor, or any of Grantor’s Successors, conveys its interest in
any of the Mortgaged Property to any other party, then Beneficiary may, without
notice to Grantor, or its successors and assigns, deal with any owner of any
part of the Mortgaged Property with reference to this Deed of Trust, either by
way of forbearance on the part of Beneficiary, or extension of time of payment
of the Secured Indebtedness, or release of all or any part of the Mortgaged
Property, or any other property securing payment of the Secured Indebtedness,
without in any way modifying or affecting Beneficiary’s Rights and Liens
hereunder or the liability of Grantor, or any other party liable for payment of
the Secured Indebtedness, in whole or in part.
Section
5.5. Grantor
hereby waives all Rights of marshaling in the event of any foreclosure of the
Liens hereby created.
Section
5.6. Each
and every party who signs this Deed of Trust, and each and every subsequent
owner of any of the Mortgaged Property, covenants and agrees that such party
will perform or cause to be performed, each and every condition, term,
provision, and covenant of this Deed of Trust, except that such party shall have
no duty to pay the Secured Indebtedness except in accordance with the terms of
the documents evidencing the Secured Indebtedness, and the terms of this Deed of
Trust or in accordance with the terms of the transfer to him.
Section
5.7. If
any provision of this Deed of Trust is held to be illegal, invalid, or
unenforceable under present or future laws effective during the term of this
Deed of Trust, the legality, validity, and enforceability of the remaining
provisions of this Deed of Trust shall not be affected thereby, and in lieu of
each such illegal, invalid or unenforceable provision there shall be added
automatically as a part of this Deed of Trust a provision as similar in terms to
such illegal, invalid, or unenforceable provision as may be possible and be
legal, valid, and enforceable. If the Rights and Liens created by
this Deed of Trust shall be invalid or unenforceable as to any part of the
Secured Indebtedness, then the unsecured portion of the Secured Indebtedness
shall be completely paid prior to the payment of the remaining and secured
portion of the Secured Indebtedness, and all payments made on the Secured
Indebtedness shall be considered to have been paid on and applied first to the
complete payment of the unsecured portion of the Secured
Indebtedness,
CULS
/ Behringer Harvard Mountain Village
Second
Deed of Trust, Security Agreement, Financing
Statement
and Assignment of Rental
18
Exhibit
10.5
Section
5.8. This
Deed of Trust is binding upon Grantor and Grantor’s Successors, and shall inure
to the benefit of Beneficiary, and its successors and assigns, and the
provisions hereof shall likewise be covenants running with the
land. The duties, covenants, conditions, obligations, and warranties
of Grantor in this Deed of Trust shall be joint and several obligations of
Grantor and Grantor’s Successors. Beneficiary may at any time and
from time to time assign or sell to other lenders all or a portion of the
indebtedness secured hereby, or sell participations therein, and may, in
contemplation of such sale or assignment divulge, and deliver copies of,
information (financial or otherwise) concerning Grantor, any other guarantor and
the Mortgaged Property to prospective lenders.
Section
5.9. This
Deed of Trust may be executed in a number of identical counterparts, each of
which, for all purposes, shall be deemed an original.
Section
5.10. Beneficiary
shall have the right at any time to file this Deed of Trust as a financing
statement, but the failure to do so shall not impair the validity and
enforceability of this Deed of Trust in any respect
whatsoever. Grantor grants to Beneficiary the right to file any
financing statement, continuation or amendment deemed appropriate by
Beneficiary, without signature by Grantor and without notice, in connection with
the security interests granted herein or in any other security
instrument.
Section
5.11. Grantor hereby
assumes all liability for the Mortgaged Property, for the Liens created therein
by this Deed of Trust, and for any development, use, possession, maintenance,
and management of, and construction upon, the Mortgaged Property, or any part
thereof, and agrees to assume liability for, and to indemnify and hold
Beneficiary harmless from and against, any and all claims, causes of action, or
liabilities, for injuries to or deaths of persons and damage to property,
howsoever arising, from or incident to such development, use, possession,
maintenance, management, and construction, whether such persons be agents or
employees of Grantor or of third parties, or such damage be to property of
Grantor or of others save and except for such damage or injury as is the result
of Beneficiary’s gross negligence or willful misconduct. Grantor
agrees to indemnify, save and hold harmless Beneficiary from and against, and
covenants to defend Beneficiary against, any and all losses, damages, claims,
costs, penalties, liabilities, and expenses, including, but not limited to,
court costs and reasonable attorneys’ fees, howsoever arising or incurred
because of, incident to, or with respect to the Mortgaged Property or any
development, use, possession, maintenance, or management thereof or construction
thereon.
Section
5.12. All references to
“Article,”
“Articles,”
“Section,”
“Sections,”
“Subsection,”
or “Subsections”
contained herein are, unless specifically indicated otherwise, references to
articles, sections, and subsections of this Deed of Trust.
CULS
/ Behringer Harvard Mountain Village
Second
Deed of Trust, Security Agreement, Financing
Statement
and Assignment of Rental
19
Exhibit
10.5
Section
5.13. Whenever
herein the singular number is used, the same shall include the plural where
appropriate, and words of any gender shall include each other gender where
appropriate.
Section
5.14. The captions,
headings, and arrangements used in this Deed of Trust are for convenience only
and do not in any way affect, limit, amplify, or modify the terms and provisions
hereof.
Section
5.15. Whenever this
Deed of Trust requires or permits any consent, approval, notice, request, or
demand from one party to another, the consent, approval, notice, request, or
demand must be in writing to be effective and shall be deemed to have been given
when given by certified mail, return receipt requested (deemed received three
(3) days after mailing), or by nationally recognized overnight courier (deemed
received the next business day after mailing), to the address set forth in the
first paragraph hereof or such other address as may be designated by such party
in writing in accordance with this section, provided that any notice of
foreclosure shall be effective when given in accordance with statutory
requirements notwithstanding anything to the contrary contained
herein. Notwithstanding any provision contained herein to the
contrary, in the event that Beneficiary shall fail to give any notice to Grantor
required hereunder or thereunder, the sole and exclusive remedy for such failure
shall be to seek appropriate equitable relief to enforce this provision to give
such notice and to have any action of Beneficiary postponed or revoked and any
proceedings in connection therewith delayed or terminated pending the giving of
such notice by Beneficiary, and no Person shall have any right to damages
(whether actual or consequential) or any other type of relief not herein
specifically set out against Beneficiary, all of which damages or other relief
are expressly waived by Grantor. The foregoing is not intended and
shall not be deemed under any circumstances to require Beneficiary to give
notice of any type or nature to any Person except as expressly set forth herein
or as may be otherwise expressly required by applicable law regarding statutory
notice of non-judicial foreclosure sales of certain collateral.
Section
5.16. The
substantive laws of the State of Colorado shall govern the creation, perfection
and enforcement of the liens, rights and obligations created and intended to be
created in this Deed of Trust. All other aspects of this Deed of
Trust and of the loan transaction evidenced by the Mockingbird Commons Note and
the other Mockingbird Commons Loan Documents are intended to be governed by the
laws of the State of Texas, as specified therein, unless federal law requires
the application of federal law.
Section
5.17. No provision
herein or in any promissory note, instrument, or any other security instrument
evidencing or securing the Secured Indebtedness shall require the payment or
permit the collection of interest in excess of the maximum permitted by
law. If any excess of interest in such respect is provided for herein
or in any other security instrument, the provisions of this paragraph shall
govern, and neither Grantor nor any borrower shall be obligated to pay the
amount of such interest to the extent that it is in excess of the amount
permitted by law. The intention of the parties being to conform
strictly to the usury laws now in force, all promissory notes, instruments,
guaranty agreements evidencing or securing the Secured Indebtedness shall be
held subject to reduction to the amount allowed under said usury laws as now or
hereafter construed by the courts having jurisdiction.
CULS
/ Behringer Harvard Mountain Village
Second
Deed of Trust, Security Agreement, Financing
Statement
and Assignment of Rental
20
Exhibit
10.5
Section
5.18. Except to the
extent venue necessarily lies in San Xxxxxx County, Colorado to foreclose or
otherwise enforce the provisions of the Deed of Trust, any suit, action or
proceeding against Grantor with respect to this Deed of Trust or the other Loan
Documents or any judgment entered by any court in respect thereof, may be
brought in the courts of the State of Texas, or in the United States Courts
located in Dallas County, Texas, as Beneficiary in its sole discretion may elect
and Grantor hereby submits to the nonexclusive jurisdiction of such courts for
the purpose of any such suit, action or proceeding. Grantor hereby
irrevocably consents to the service of process in any suit, action or proceeding
in said court by the mailing thereof by Beneficiary by registered or certified
mail, postage prepaid, to Grantor’s address set forth in the first paragraph of
this Deed of Trust. Grantor hereby irrevocably waives any objections
which it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Deed of Trust or any other
Security Instrument brought in the courts located in the State of Texas, and
hereby further irrevocably waives any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient
forum. GRANTOR AND BENEFICIARY HEREBY WAIVE TRIAL BY JURY IN ANY
SUIT, ACTION OR PROCEEDING BROUGHT IN CONNECTION WITH THIS DEED OF TRUST OR ANY
OF THE OTHER LOAN DOCUMENTS, WHICH WAIVER IS INFORMED AND
VOLUNTARY.
Section
5.19. Time is of the
essence of this Deed of Trust.
Section
5.20. Nothing
contained in this Deed of Trust or any other document nor the acts of the
parties hereto shall be construed to create a relationship of principal and
agent, partnership, or joint venture between Grantor and
Beneficiary.
Section
5.21. Beneficiary
may, from time to time, in Beneficiary’s sole discretion, contract for and
procure an Appraisal of the Mortgaged Property. Grantor covenants and
agrees to pay the cost of each such Appraisal within ten (10) days of written
notice from Beneficiary specifying the amount due. All amounts due
hereunder shall constitute part of the Secured
Indebtedness. Notwithstanding the foregoing, so long as no Event of
Default has occurred, Grantor shall not be required to pay for more than one
Appraisal per calendar year.
Section
5.22. It is agreed
and understood that Grantor shall provide to Beneficiary, on or before January
31st
of each year during the existence of the Secured Indebtedness, written evidence
that all ad valorem taxes and other assessments against the property have been
paid in full.
Section
5.23. At any time
when the Mountain Village First Deed of Trust is outstanding, any insurance
proceeds or condemnation proceeds received in respect of the Mortgaged Property
shall be applied in the manner provided in the Mountain Village Loan Documents;
provided, however, that in the event such insurance proceeds or condemnation
proceeds are not used to rebuild or repair the Mortgaged Property but instead
are applied to the indebtedness under the Mountain Village Loan Documents, then
any excess after payment in full of the indebtedness under the Mountain Village
Loan Documents shall be applied next to the Secured Indebtedness
hereunder. In any event, the unpaid portion of the Secured
Indebtedness shall remain in full force and effect and the payment thereof shall
not be excused. Grantor shall at all times comply with the
requirements of the insurance policies issued in respect of the Mortgaged
Property as required by the Mountain Village Loan Documents.
CULS
/ Behringer Harvard Mountain Village
Second
Deed of Trust, Security Agreement, Financing
Statement
and Assignment of Rental
21
Exhibit
10.5
Section
5.24. No provision
of this Deed of Trust may be modified, waived or terminated except by an
instrument in writing executed by the party against whom a modification, waiver
or termination is sought to be enforced.
Section
5.25. Beneficiary
has not consented to any priority of a contractor’s lien for construction of any
improvements to the Mortgaged Property, and any such lien hereafter arising
shall be subordinate and inferior to the lien of this instrument.
Section
5.26. Any obligation
or liability of Grantor hereunder shall be enforceable only against, and payable
only out of, the property of Grantor, and in no event shall any officer,
director, shareholder, partner, beneficiary, agent, advisor or employee of
Grantor, be held to any personal liability whatsoever or be liable for any of
the obligations of Grantor hereunder, or the property of any such Persons be
subject to the payment of any such obligations, except in the case of certain
Persons where such Persons have executed a written agreement pertaining
thereto.
Section
5.27. At such time
as the Mountain Village Loan is paid in full, Beneficiary shall execute a
release or termination (as appropriate) of the liens evidenced by the Mountain
Village First Deed of Trust; provided, however, that
Beneficiary and Grantor have agreed that, in order to protect the interests of
Beneficiary under this Deed of Trust, the provisions of the Mountain Village
Loan Documents will survive the repayment of the Mountain Village Loan until
this Deed of Trust has terminated in accordance with its terms or been released
by Beneficiary, except as otherwise provided in this Section
5.27 In this regard, Beneficiary and Grantor specifically
agree as follows, that after the Mountain Village Loan has been paid in full and
until this Deed of Trust has terminated in accordance with its terms or been
released by Beneficiary: (a) the provisions of Article II and Article VI of the
Mountain Village Loan Agreement shall not be applicable, except for the
provisions of Section 2.09 of the Mountain Village Loan Agreement; (b) Grantor
shall continue to comply with the covenants of Grantor set forth in Article IV
and Article V of the Mountain Village Loan Agreement, except that the provisions
of Sections 4.02 and 4.23 shall not be applicable; (c) Beneficiary shall not
unreasonably withhold its consent to any Lease of any unit at the Property
requested by Grantor that is a Qualifying Proposed Lease (as hereinafter
defined), (d) the Events of Default set forth in Sections (a), (l), and (n) of
Article VII of the Mountain Village Loan Agreement shall not be applicable;
(e) with respect to Sections 8.10 and 8.11 of the Mountain Village
Loan Agreement, Beneficiary will not unreasonably withhold its consent to the
use by Grantor of any insurance or condemnation proceeds to restore or repair
the Property in accordance with the provisions set forth in such sections of the
Mountain Village Loan Agreement, and (f) the terms and provisions of the
Mountain Village Loan Documents shall be automatically amended and modified
wherever necessary, and even though not specifically addressed herein, so as to
conform to the intent hereof, being the protection of the Property and the
interests of Beneficiary under this Deed of Trust. For purposes of
this Section 5.27,
the term “Qualifying Proposed Lease” will mean any Lease which meets the
following requirements: (i) the Lease is not part of any permanent leasing
program; (ii) the proposed Lease does not have a term of more than six (6)
months; (iii) the terms of the proposed Lease do not restrict or adversely
affect the marketing, showing or sale of the related Unit, and (iv) the rental
rate for each lease shall be normal and customary for similar units in the same
geographic location as the Property.
CULS
/ Behringer Harvard Mountain Village
Second
Deed of Trust, Security Agreement, Financing
Statement
and Assignment of Rental
22
Exhibit
10.5
Section
5.28. Notwithstanding
anything to the contrary, this Deed of Trust is subject and subordinate to the
Mountain Village First Deed of Trust. Grantor has executed this
subordinate Deed of Trust for the purpose of providing Beneficiary with further
security for the Mockingbird Commons Loan. For the avoidance of
doubt, it is hereby stipulated that it is not the intent of Borrower, Grantor or
Beneficiary to cross-default the Mountain Village Loan and the Mockingbird
Commons Loan. Thus, the occurrence of an Event of Default as defined
in the Mountain Village Loan Documents shall not constitute an Event of Default
under the Mockingbird Commons Loan Documents (except to the extent provided in
Section 3.1(ii) of this Deed of Trust), and the occurrence of an Event of
Default as defined in the Mockingbird Commons Loan Documents shall not, in and
of itself, constitute an Event of Default under the Mountain Village Loan
Documents; provided, however, upon the occurrence of an Event of Default as
defined herein, Beneficiary shall have the right to enforce its lien against the
Mortgaged Property as provided in this Deed of Trust. Nothing
contained in this Deed of Trust shall be construed as an assumption by Grantor
of any debt or obligation set forth in the Mockingbird Commons Loan Documents,
it being agreed that Grantor shall have no personal liability for any of its
obligations hereunder, but rather such obligations shall be enforceable against
and payable out of only the Mortgaged Property.
ARTICLE
VI
PARTIAL
RELEASE
Section
6.1. Release Conditions while
Mountain Village First Deed of Trust is
outstanding. Notwithstanding anything to the contrary
contained in this Deed of Trust, if Grantor is entitled to obtain a partial
release of any Unit (as defined in the Mountain Village First Deed of Trust)
pursuant to Article VI of the Mountain Village First Deed of Trust, then Grantor
shall also be entitled to obtain a partial release of said Unit from the lien of
this Deed of Trust upon satisfaction of the following terms and
conditions:
(a) Grantor
shall pay to Beneficiary, in cash, a release fee of $50.00.
(b) Grantor
shall deliver to Beneficiary a partial release of lien in form and content
satisfactory to Beneficiary.
(c) Grantor
shall pay all expenses of Beneficiary arising in connection with the release of
such Unit including, without limitation, all reasonable attorneys’ fees incurred
by Beneficiary and the expense, if any, to Beneficiary of inspecting the Unit
prior to release.
Section
6.2. Release Conditions after
Mountain Village Loan has been paid in full and First Deed of Trust has been
released by Beneficiary.
(a) Definitions. As used
in this Section
6.2, the following terms shall have the meanings assigned to them as
follows:
CULS
/ Behringer Harvard Mountain Village
Second
Deed of Trust, Security Agreement, Financing
Statement
and Assignment of Rental
23
Exhibit
10.5
"Condominium
Declaration" means any residential condominium declaration affecting the
Property, filed by Grantor or Declarant, to which Beneficiary has subordinated
the lien of this Deed of Trust.
"Net Sale Proceeds"
means the difference between (i) the gross sales price of a Unit and
(ii) ordinary and actual closing costs incurred by Grantor, as seller of
the Unit to be released, which costs shall not exceed the normal costs
associated with such sales in the area in which the Unit is
located.
"Permitted Sale" means
the sale of a Unit for which the gross sales price is equal to or greater than
the price contemplated in the Price Schedule attached to the Mountain Village
Loan Agreement as Exhibit
J.
"Release Price" means
for any Unit the amount equal to one hundred percent (100%) of the Net Sale
Proceeds.
"Unit" means each
residential condominium unit under the Condominium Declaration.
(b) Release
Conditions. Subject to Section 6.1 hereof, but notwithstanding
anything else to the contrary contained in this Deed of Trust, so long as no
Event of Default or Potential Default has occurred and is continuing under the
Mockingbird Commons Loan Documents, then Grantor shall, upon a Permitted Sale of
a Unit, be entitled to obtain a partial release of said Unit from the lien of
this Deed of Trust upon satisfaction of the following terms and
conditions:
(1) Grantor
shall pay to Beneficiary, in cash, the Release Price for the Unit and a release
fee of $50.00. The Release Price shall be applied by Beneficiary as a
prepayment of the Secured Indebtedness.
(2) Grantor
shall deliver to Beneficiary a partial release of lien in form and content
satisfactory to Beneficiary.
(3) Grantor
shall pay all expenses of Beneficiary arising in connection with the release of
such Unit including, without limitation, all reasonable attorneys’ fees incurred
by Beneficiary and the expense, if any, to Beneficiary of inspecting the Unit
prior to release.
REMAINDER
OF PAGE INTENTIONALLY BLANK
SIGNATURE
PAGE(S) FOLLOWS.
CULS
/ Behringer Harvard Mountain Village
Second
Deed of Trust, Security Agreement, Financing
Statement
and Assignment of Rental
24
Exhibit
10.5
EXECUTED
to be effective as of the day and date first above written.
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GRANTOR:
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BEHRINGER
HARVARD MOUNTAIN VILLAGE, LLC,
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a
Colorado limited liability company
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By:
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Behringer
Harvard Short-Term Opportunity Fund I LP,
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a
Texas limited partnership,
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its
manager
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By:
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Behringer
Harvard Advisors II, LP
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a
Texas limited partnership,
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it's
general partner
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By:
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Harvard
Property Trust, LLC
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a
Delaware limited liability company
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its
general partner
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By:
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Xxxxxx
X. Xxxxxxx, III
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Secretary
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THE
STATE OF TEXAS
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§
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§
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COUNTY
OF DALLAS
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§
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This
instrument was acknowledged before me on this ______ day of October, 2009, by
Xxxxxx X. Xxxxxxx, III, Secretary of Harvard Property Trust, LLC, a Delaware
limited liability company, as general partner on behalf of Behringer Harvard
Advisors II LP, a Texas limited partnership, as general partner on behalf of
Behringer Harvard Short-Term Opportunity Fund I LP, a Texas limited partnership,
as manager on behalf of Behringer Harvard Mountain Village LLC, a Colorado
limited liability company, on behalf of said limited liability
company.
|
Notary
Public in and for the State of
Texas
|
(SEAL)
Exhibit
A - Legal Description
CULS
/ Behringer Harvard Mountain Village
Second
Deed of Trust, Security Agreement, Financing
Statement
and Assignment of Rental
25
Exhibit
10.5
EXECUTED
by Borrower to acknowledge and agree to the provisions applicable to Borrower
contained herein, to be effective as of the date first above
written.
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BORROWER:
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BEHRINGER
HARVARD MOCKINGBIRD COMMONS, LLC,
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a
Delaware limited liability
company
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By:
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Behringer
Harvard Mockingbird Commons GP,
LLC,
a Texas limited liability company,
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its
manager
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By:
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||
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Xxxxxx
X. Xxxxxxx, III
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||
|
Secretary
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THE
STATE OF TEXAS
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§
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|
|
§
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COUNTY
OF DALLAS
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§
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This
instrument was acknowledged before me on this ______ day of October, 2009, by
Xxxxxx X. Xxxxxxx, III, Secretary of Behringer Harvard Mockingbird Commons GP,
LLC, a Texas limited liability company, as general partner of Behringer Harvard
Mockingbird Commons, LLC, a Delaware limited liability company, for and on
behalf of said entities.
|
Notary
Public in and for the State of
Texas
|
(SEAL)
CULS
/ Behringer Harvard Mountain Village
Second
Deed of Trust, Security Agreement, Financing
Statement
and Assignment of Rental
26
Exhibit
10.5
EXHIBIT
A
Legal
Description
XXX
XX000XX-X,
Xxxx xx
Xxxxxxxx Xxxxxxx, Xxxxxxxx,
A Replat
of Lots SS165-A and SS165-B,
According
to the plat recorded November 22, 2006 in Plat Book 1 at page 3759 as Reception
No. 388573.
TOGETHER
WITH the Road Access Easement Agreement, recorded May 17, 2006 at Reception No.
384207, as amended by that certain First Amendment recorded January 22, 2009 at
Reception No. 405488; Subject to the terms, conditions, provisions and
obligations contained therein;
LESS AND
EXCEPT all rights to minerals and oil, gas or other hydrocarbons located on, in
or under the subject property, without any right of surface entry for
exploration, development or extraction, as reserved to The Telluride Company in
Deed recorded in Book 494 at page 22 and in Book 515 at page 626;
COUNTY OF
SAN XXXXXX
STATE OF
COLORADO
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Exhibit
A – Solo Page
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CULS
/ Behringer Harvard Mountain Village
|
|
|
Deed
of Trust, Security Agreement, Financing
|
||
|
Statement
and Assignment of
Rental
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