EXHIBIT 10.61
XXXXXXXX OUTLET CENTER LLC,
a Delaware limited liability company, as grantor
(Borrower)
to
FIDELITY NATIONAL TITLE INSURANCE COMPANY, as trustee
(Trustee)
for the benefit of
UBS WARBURG REAL ESTATE INVESTMENTS INC., as beneficiary
(Lender)
DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS
AND SECURITY AGREEMENT
Dated: As of July __, 2002
Location: 1955 S. Casino Drive, Xxxxxxxx, Nevada
County: Xxxxx
Assessor's Parcel No: 264-13-201-003
264-13-601-003
264-13-601-004
PREPARED BY AND UPON
RECORDATION RETURN TO:
Xxxxx Raysman Xxxxxxxxx Xxxxxx & Xxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
4194/68
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DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT
THIS DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT
(this "DEED OF TRUST") is made as of this ____ day of July, 2002 by XXXXXXXX
OUTLET CENTER LLC a Delaware limited liability company, having its principal
place of business at c/o Horizon Group Properties, Inc., 00 Xxxx Xxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, as grantor ("BORROWER"), to FIDELITY
NATIONAL TITLE INSURANCE COMPANY, having an address at 000 X. Xxxxxxx Xxxx.,
Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000, as trustee ("Trustee"), for the benefit of
UBS WARBURG REAL ESTATE INVESTMENTS INC., having an address at 1285 Avenue of
the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as beneficiary ("LENDER").
W I T N E S S E T H:
A. This Deed of Trust is given to secure a loan (the "LOAN") in the
principal sum of ELEVEN MILLION AND NO/100 DOLLARS ($11,000,000.00) or so much
thereof as may be advanced pursuant to that certain Loan Agreement dated as of
the date hereof by and among Borrower, Medford Outlet Center LLC, a Delaware
limited liability company, Warrenton Outlet Center LLC, a Delaware limited
liability company and Lender (as the same may be amended, restated, replaced,
supplemented or otherwise modified from time to time, the "LOAN AGREEMENT"), and
evidenced by that certain Promissory Note dated the date hereof made by Borrower
to Lender (such Note, together with all extensions, renewals, replacements,
restatements or modifications thereof, being hereinafter referred to as the
"NOTE"). Capitalized terms used herein without definition shall have the
meanings ascribed to such terms in the Loan Agreement.
B. Borrower desires to secure the payment of the outstanding principal
amount of the Loan together with all interest accrued and unpaid thereon and all
other sums (including the Yield Maintenance Premium) due to Lender in respect of
the Loan and the Loan Documents (the "DEBT") and the performance of all of its
obligations under the Note, the Loan Agreement and the other Loan Documents.
C. This Deed of Trust is given pursuant to the Loan Agreement, and
payment, fulfillment and performance by Borrower of its obligations thereunder
and under the other Loan Documents are secured hereby, and each and every term
and provision of the Loan Agreement and the Note, including the rights,
remedies, obligations, covenants, conditions, agreements, indemnities,
representations and warranties of the parties therein, are hereby incorporated
by reference herein as though set forth in full and shall be considered a part
of this Deed of Trust.
NOW THEREFORE, in consideration of the making of the Loan by Lender and the
covenants, agreements, representations and warranties set forth in this Deed of
Trust:
ARTICLE 1
GRANTS OF SECURITY
Section 1.1 PROPERTY CONVEYED. Borrower does hereby irrevocably grant,
bargain, sell,
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pledge, assign, warrant, transfer and convey to Trustee and its successors and
assigns, in trust, with Power of Sale for the benefit of Lender as beneficiary
in trust, the following property, rights, interests and estates now owned or
hereafter acquired by Borrower (collectively, the "PROPERTY"):
(a) LAND. The real property described in EXHIBIT A attached hereto
and made a part hereof (the "LAND");
(b) ADDITIONAL LAND. All xxxxxxxxxx xxxxx, xxxxxxx and development
rights hereafter acquired by Borrower for use in connection with the Land and
the development of the Land and all additional lands and estates therein which
may, from time to time, by supplemental mortgage or otherwise be expressly made
subject to the lien of this Deed of Trust;
(c) IMPROVEMENTS. The buildings, structures, fixtures, additions,
enlargements, extensions, modifications, repairs, replacements and improvements
now or hereafter erected or located on the Land (collectively, the
"IMPROVEMENTS");
(d) EASEMENTS. All easements, rights-of-way or use, rights, 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, servitudes,
tenements, hereditaments and appurtenances of any nature whatsoever, in any way
now or hereafter belonging, relating or pertaining to the Land 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 Land, to the center line thereof and all the estates,
rights, titles, interests, dower and rights of dower, curtesy and rights of
curtesy, property, possession, claim and demand whatsoever, both at law and in
equity, of Borrower of, in and to the Land and the Improvements and every part
and parcel thereof, with the appurtenances thereto;
(e) EQUIPMENT. All "equipment," as such term is defined in Article 9
of the Uniform Commercial Code (as hereinafter defined), now owned or hereafter
acquired by Borrower, which is used at or in connection with the Improvements or
the Land or is located thereon or therein (including, but not limited to, all
machinery, equipment, furnishings, and electronic data-processing and other
office equipment now owned or hereafter acquired by Borrower and any and all
additions, substitutions and replacements of any of the foregoing), together
with all attachments, components, parts, equipment and accessories installed
thereon or affixed thereto (collectively, the "EQUIPMENT"). Notwithstanding the
foregoing, Equipment shall not include any property belonging to Tenants under
Leases except to the extent that Borrower shall have any right or interest
therein;
(f) FIXTURES. All Equipment now owned, or the ownership of which is
hereafter acquired, by Borrower which is so related to the Land and Improvements
forming part of the Property that it is deemed fixtures or real property under
the law of the particular state in which the Equipment is located, including,
without limitation, all building or construction materials intended for
construction, reconstruction, alteration or repair of or installation on the
Property, construction equipment, appliances, machinery, plant equipment,
fittings, apparatuses, fixtures and other items now or hereafter attached to,
installed in or used in connection with (temporarily or permanently) any of the
Improvements or the Land, including, but not limited to, engines, devices for
the operation of pumps, pipes, plumbing, cleaning, call and sprinkler systems,
fire extinguishing apparatuses and
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equipment, heating, ventilating, plumbing, laundry, incinerating, electrical,
air conditioning and air cooling equipment and systems, gas and electric
machinery, appurtenances and equipment, pollution control equipment, security
systems, disposals, dishwashers, refrigerators and ranges, recreational
equipment and facilities of all kinds, and water, gas, electrical, storm and
sanitary sewer facilities, utility lines and equipment (whether owned
individually or jointly with others, and, if owned jointly, to the extent of
Borrower's interest therein) and all other utilities whether or not situated in
easements, all water tanks, water supply, water power sites, fuel stations, fuel
tanks, fuel supply, and all other structures, together with all accessions,
appurtenances, additions, replacements, betterments and substitutions for any of
the foregoing and the proceeds thereof (collectively, the "FIXTURES").
Notwithstanding the foregoing, "Fixtures" shall not include any property which
Tenants are entitled to remove pursuant to Leases except to the extent that
Borrower shall have any right or interest therein;
(g) PERSONAL PROPERTY. All furniture, furnishings, objects of art,
machinery, goods, tools, supplies, appliances, general intangibles, contract
rights, accounts, accounts receivable, franchises, licenses, certificates and
permits, and all other personal property of any kind or character whatsoever (as
defined in and subject to the provisions of the Uniform Commercial Code), other
than Fixtures, which are now or hereafter owned by Borrower and which are
located within or about the Land and the Improvements, together with all
accessories, replacements and substitutions thereto or therefor and the proceeds
thereof (collectively, the "PERSONAL PROPERTY"), and the right, title and
interest of Borrower in and to any of the Personal Property 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 Property is located (as
amended from time to time, the "UNIFORM COMMERCIAL CODE"), superior in lien to
the lien of this Deed of Trust, and all proceeds and products of any of the
above;
(h) LEASES AND RENTS. All leases and other agreements affecting the
use, enjoyment or occupancy of the Land and the Improvements heretofore or
hereafter entered into, whether before or after the filing by or against
Borrower of any petition for relief under 11 U.S.C. Section 101 ET SEQ., as the
same may be amended from time to time (the "BANKRUPTCY CODE") (collectively, the
"LEASES"), and all right, title and interest of Borrower, its successors and
assigns, therein and thereunder, including, without limitation, cash or
securities deposited thereunder to secure the performance by the lessees of
their obligations thereunder and all rents, additional rents, revenues, issues
and profits (including all oil and gas or other mineral royalties and bonuses)
from the Land and the Improvements, whether paid or accruing before or after the
filing by or against Borrower of any petition for relief under the Bankruptcy
Code (collectively, the "RENTS"), and all proceeds from the sale or other
disposition of the Leases and the right to receive and apply the Rents to the
payment and performance of the Obligations, including the payment of the Debt;
(i) CONDEMNATION AWARDS. All awards or payments, including interest
thereon, which may heretofore and hereafter be made with respect to the
Property, whether from the exercise of the right of eminent domain (including,
but not limited to, any transfer made in lieu of or in anticipation of the
exercise of such right), or for a change of grade, or for any other injury to or
decrease in the value of the Property;
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(j) INSURANCE PROCEEDS. All proceeds in respect of the Property under
any insurance policies covering the 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 Property;
(k) TAX CERTIORARI. All refunds, rebates or credits in connection
with any reduction in real estate taxes and assessments charged against the
Property as a result of tax certiorari proceedings or any other applications or
proceedings for reduction;
(l) RIGHTS. The right, in the name and on behalf of Borrower, to
appear in and defend any action or proceeding brought with respect to the
Property and to commence any action or proceeding to protect the interest of
Lender in the Property;
(m) AGREEMENTS. All right, title and interest of Borrower in, to and
under all agreements, contracts, certificates, instruments, franchises, permits,
licenses, plans, specifications and other documents, now or hereafter entered
into, and all rights therein and thereto, respecting or pertaining to the use,
occupation, construction, management or operation of the Land and any part
thereof and any Improvements or respecting any business or activity conducted on
the Land and any part thereof and including, without limitation, the right, upon
the happening of an Event of Default, to receive and collect any sums payable to
Borrower thereunder;
(n) TRADEMARKS. All tradenames, trademarks, servicemarks, logos,
copyrights, goodwill, books and records and all other general intangibles
relating to or used in connection with the operation of the Property;
(o) ACCOUNTS. All reserves, escrows and deposit accounts maintained
by Borrower with respect to the Property, including, without limitation, all
accounts established or maintained pursuant to the Loan Agreement, the Cash
Management Agreement or any other Loan Document, together with all deposits or
wire transfers made to such accounts, and all cash, checks, drafts,
certificates, securities, investment property, financial assets, instruments and
other property held therein from time to time, and all proceeds, products,
distributions, dividends and/or substitutions thereon and thereof;
(p) UNIFORM COMMERCIAL CODE PROPERTY. All documents, instruments,
chattel paper and intangibles, as the foregoing terms are defined in the Uniform
Commercial Code, and general intangibles of Borrower relating to the Property;
(q) PROCEEDS. All proceeds of any of the foregoing, including,
without limitation, proceeds of insurance and condemnation awards, whether in
cash or in liquidation or other claims, or otherwise; and
(r) OTHER RIGHTS. Any and all other rights of Borrower in and to the
items set forth in SUBSECTIONS (a) through (q) above.
AND, without limiting any of the other provisions of this Deed of Trust, to the
extent permitted by applicable law, Borrower expressly grants to Lender, as
secured party, a security interest in the
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portion of the Property which is or may be subject to the provisions of the
Uniform Commercial Code which are applicable to secured transactions; it being
understood and agreed that the Improvements and Fixtures are part and parcel of
the Land (the Land, the Improvements and the Fixtures collectively referred to
as the "REAL PROPERTY") appropriated to the use thereof and, whether affixed or
annexed to the Land or not, shall for the purposes of this Deed of Trust be
deemed conclusively to be real estate and conveyed hereby.
Section 1.2 ASSIGNMENT OF RENTS. Borrower hereby absolutely and
unconditionally assigns to Lender and Trustee all of Borrower's right, title and
interest in and to all current and future Leases and Rents; it being intended by
Borrower that this assignment constitutes a present, absolute assignment and not
an assignment for additional security only. Nevertheless, subject to the terms
of the Assignment of Leases and SECTION 7.1(h) of this Deed of Trust, Lender
grants to Borrower a revocable license to collect, receive, use and enjoy the
Rents. Borrower shall hold the Rents, or a portion thereof sufficient to
discharge all current sums due on the Debt, for use in the payment of such sums.
Section 1.3 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 Property includes both real and personal property
and all other rights and interests, whether tangible or intangible in nature, of
Borrower in the Property. By executing and delivering this Deed of Trust,
Borrower hereby grants to Lender, as security for the Obligations, a security
interest in the Fixtures, the Equipment, the Personal Property and the other
property constituting the Property to the full extent that the Fixtures, the
Equipment, the Personal Property and such other property may be subject to the
Uniform Commercial Code (said portion of the Property so subject to the Uniform
Commercial Code being called the "COLLATERAL"). If an Event of Default shall
occur and be continuing, Lender, 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 Lender may deem necessary for the care,
protection and preservation of the Collateral. Upon request or demand of Lender
after the occurrence and during the continuance of an Event of Default, Borrower
shall, at its expense, assemble the Collateral and make it available to Lender
at a convenient place (at the Land if tangible property) reasonably acceptable
to Lender. Borrower shall pay to Lender on demand any and all expenses,
including reasonable attorneys' fees and costs, incurred or paid by Lender in
protecting its interest in the Collateral and in enforcing its rights hereunder
with respect to the Collateral after the occurrence and during the continuance
of an Event of Default. Any notice of sale, disposition or other intended action
by Lender with respect to the Collateral sent to Borrower in accordance with the
provisions hereof at least ten (10) Business Days prior to such action, shall,
except as otherwise provided by applicable law, constitute reasonable notice to
Borrower. The proceeds of any disposition of the Collateral, or any part
thereof, may, except as otherwise required by applicable law, be applied by
Lender to the payment of the Debt in such priority and proportions as Lender in
its discretion shall deem proper. The principal place of business of Borrower
(Debtor) is as set forth on page one hereof and the address of Lender (Secured
Party) is as set forth on page one hereof.
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Section 1.4 FIXTURE FILING. Certain of the Property is or will become
"fixtures" (as that term is defined in the Uniform Commercial Code) on the Land,
described or referred to in this Deed of Trust, and this Deed of Trust, upon
being filed for record in the real estate records of the city or county wherein
such fixtures are situated, shall operate also as a financing statement naming
Borrower as the Debtor and Lender as the Secured Party filed as a fixture filing
in accordance with the applicable provisions of said Uniform Commercial Code
upon such of the Property that is or may become fixtures.
Section 1.5 PLEDGES OF MONIES HELD. Borrower hereby pledges to Lender any
and all monies now or hereafter held by Lender or on behalf of Lender in
connection with the Loan, including, without limitation, any sums deposited in
the Accounts (as defined in the Cash Management Agreement) and the Net Proceeds,
as additional security for the Obligations until expended or applied as provided
in this Deed of Trust.
CONDITIONS TO GRANT
TO HAVE AND TO HOLD the above granted and described Property unto and to
the use and benefit of Trustee and its successors and assigns, forever;
IN TRUST, WITH POWER OF SALE, to secure Borrower's performance of the
Obligations, including the payment to Lender of the Debt, at the time and in the
manner provided for its payment in the Note, in the Loan Agreement and in this
Deed of Trust.
PROVIDED, HOWEVER, these presents are upon the express condition that, if
Borrower shall well and truly pay and perform the Obligations (including the
payment of the Debt) at the time and in the manner provided in this Deed of
Trust, the Note, the Loan Agreement and the other Loan Documents, and shall well
and truly abide by and comply in all material respects with each and every
covenant and condition set forth herein and in the Note, the Loan Agreement and
the other Loan Documents, these presents and the estate hereby granted shall
cease, terminate and be void; PROVIDED, HOWEVER, that Borrower's obligation to
indemnify and hold harmless Lender pursuant to the provisions hereof shall
survive any such payment or release.
ARTICLE 2
DEBT AND OBLIGATIONS SECURED
Section 2.1 OBLIGATIONS. This Deed of Trust and the grants, assignments
and transfers made in ARTICLE 1 are given for the purpose of securing the
Obligations, including, but not limited to, the Debt.
Section 2.2 OTHER OBLIGATIONS. This Deed of Trust and the grants,
assignments and transfers made in ARTICLE 1 are also given for the purpose of
securing the following (the "Other Obligations"):
(a) the performance of all other obligations of Borrower contained
herein;
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(b) the performance of each obligation of Borrower contained in the
Loan Agreement and in each other Loan Document; and
(c) the performance of each obligation of Borrower contained in any
renewal, extension, amendment, modification, consolidation, change of, or
substitution or replacement for, all or any part of the Note, the Loan Agreement
or any other Loan Document.
Section 2.3 DEBT AND OTHER OBLIGATIONS. Borrower's obligations for the
payment of the Debt and the performance of the Other Obligations may sometimes
be referred to collectively herein as the "OBLIGATIONS."
ARTICLE 3
BORROWER COVENANTS
Borrower covenants and agrees that throughout the term of the Loan:
Section 3.1 PAYMENT OF DEBT. Borrower will pay the Debt at the time and
in the manner provided in the Loan Agreement, the Note and this Deed of Trust.
Section 3.2 INCORPORATION BY REFERENCE. All the covenants, conditions and
agreements contained in (a) the Loan Agreement, (b) the Note, and (c) all and
any of the other Loan Documents, are hereby made a part of this Deed of Trust to
the same extent and with the same force as if fully set forth herein.
Section 3.3 INSURANCE. Borrower shall obtain and maintain, or cause to be
maintained, in full force and effect at all times insurance with respect to
Borrower and the Property as required pursuant to the Loan Agreement.
Section 3.4 MAINTENANCE OF PROPERTY. Borrower shall cause the Property to
be maintained in a good and safe condition and repair. The Improvements, the
Fixtures, the Equipment and the Personal Property shall not be removed,
demolished or materially altered (except for normal replacement of the Fixtures,
the Equipment or the Personal Property, tenant finish and refurbishment of the
Improvements) without the consent of Lender, which consent shall not be
unreasonably withheld. Borrower shall promptly repair, replace or rebuild any
part of the Property which may be destroyed by any Casualty, or become damaged,
worn or dilapidated or which may be affected by any Condemnation, in accordance
with Section 5.2 of the Loan Agreement and shall complete and pay for any
structure at any time in the process of construction or repair on the Land.
Section 3.5 WASTE. Borrower shall not commit or suffer any waste of the
Property, or make any change in the use of the Property which will in any way
materially increase the risk of fire or other hazard arising out of the
operation of the Property, or take any action that might invalidate or allow the
cancellation of any Policy, or do or permit to be done thereon anything that may
in any way materially adversely impair the value of the Property or the security
of this Deed of Trust. Borrower will not, without the prior written consent of
Lender, permit any drilling or exploration for or extraction, removal, or
production of any minerals from the surface or the subsurface of the Land,
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regardless of the depth thereof or the method of mining or extraction thereof.
Section 3.6 PAYMENT FOR LABOR AND MATERIALS.
(a) Subject to SECTION 3.6(b) hereof, Borrower (i) will promptly pay
when due all bills and costs for labor, materials and specifically fabricated
materials ("LABOR AND MATERIAL COSTS") incurred in connection with the Property,
(ii) never permit to exist beyond the due date thereof in respect of the
Property, or any part thereof, any Lien or security interest, even though
inferior to the Liens and security interests created hereby and by the other
Loan Documents, and (iii) never permit to be created or exist in respect of the
Property or any part thereof any other or additional Lien or security interest
other than the Liens or security interests created hereby and by the other Loan
Documents, except for the Permitted Encumbrances.
(b) After prior written notice to Lender, Borrower, at its own
expense, may contest by appropriate legal proceeding, promptly initiated and
conducted in good faith and with due diligence, the amount or validity or
application in whole or in part of any of the Labor and Material Costs, provided
that: (i) no Event of Default has occurred and is continuing under the Loan
Agreement, the Note, this Deed of Trust or any of the other Loan Documents; (ii)
Borrower is permitted to do so under the provisions of any other mortgage, deed
of trust or deed to secure debt affecting the Property; (iii) such proceeding
shall suspend the collection of the Labor and Material Costs from Borrower and
from the Property or Borrower shall have paid all of the Labor and Material
Costs under protest; (iv) such proceeding shall be permitted under and be
conducted in accordance with the provisions of any other instrument to which
Borrower is subject and shall not constitute a default thereunder; (v) neither
the Property nor any part thereof or interest therein will be in danger of being
sold, forfeited, terminated, canceled or lost; and (vi) if such Lien is equal to
or greater than $25,000, Borrower shall have furnished to Lender either (A) a
cash deposit equal to 125% of the amount of such contested Labor and Material
Costs, or (B) an indemnity bond reasonably satisfactory to Lender with a surety
reasonably satisfactory to Lender, in the amount of such Labor and Material
Costs, plus in either of the foregoing cases a reasonable additional sum to pay
all costs, interest and penalties that may be imposed or incurred in connection
therewith.
(c) Notwithstanding the foregoing, it shall not be a default under
the terms and conditions of this SECTION 3.6 if, in respect of a mechanic's or
materialman's lien asserted against the Property for Labor and Material Costs
(each, a "MECHANIC'S LIEN"): (i) Borrower shall have provided Lender with
written notice of such Mechanic's Lien within five (5) days of obtaining
knowledge thereof; (ii) within five (5) days of obtaining knowledge of the
filing of any Mechanic's Lien, if such Mechanic's Lien is equal to or greater
than $25,000, Borrower shall have furnished to Lender either (A) a cash deposit
equal to 125% of the amount of the Labor and Material Costs which are the
subject of such Mechanic's Lien, or (B) an indemnity bond reasonably
satisfactory to Lender with a surety reasonably satisfactory to Lender, in the
amount of the Labor and Material Costs which are the subject of such Mechanic's
Lien, plus in each instance a reasonable additional sum to pay all costs,
interest and penalties that may be imposed or incurred in connection therewith;
(iii) no Event of Default shall have occurred and be continuing under the Loan
Agreement, the Note, this Deed of Trust or any of the other Loan Documents; (iv)
Borrower shall at all times diligently prosecute the
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discharge of such Mechanic's Lien; and (v) neither the Property nor any part
thereof nor any interest therein shall be in danger of being sold, forfeited,
terminated, canceled or lost.
Section 3.7 PERFORMANCE OF OTHER AGREEMENTS. Borrower shall observe and
perform in all material respects each and every term, covenant and provision to
be observed or performed by Borrower pursuant to the Loan Agreement, any other
Loan Document and any other agreement or recorded instrument affecting or
pertaining to the Property, and any amendments, modifications or changes
thereto.
ARTICLE 4
OBLIGATIONS AND RELIANCES
Section 4.1 RELATIONSHIP OF BORROWER AND LENDER. The relationship between
Borrower and Lender is solely that of debtor and creditor, and Lender has no
fiduciary or other special relationship with Borrower, and no term or condition
of any of the Loan Agreement, the Note, this Deed of Trust or the other Loan
Documents shall be construed so as to deem the relationship between Borrower and
Lender to be other than that of debtor and creditor.
Section 4.2 NO RELIANCE ON LENDER. The general partners, members,
principals and (if Borrower is a trust) beneficial owners of Borrower, as
applicable, are experienced in the ownership and operation of properties similar
to the Property, and Borrower and Lender are relying solely upon such expertise
and business plan in connection with the ownership and operation of the
Property. Borrower is not relying on Lender's expertise, business acumen or
advice in connection with the Property.
Section 4.3 No Lender Obligations.
(a) Notwithstanding the provisions of SUBSECTIONS 1.1(h) and (m) or
SECTION 1.2, Lender is not undertaking the performance of (i) any obligations
under the Leases, or (ii) any obligations with respect to any other agreements,
contracts, certificates, instruments, franchises, permits, trademarks, licenses
or other documents.
(b) By accepting or approving anything required to be observed,
performed or fulfilled or to be given to Lender pursuant to this Deed of Trust,
the Loan Agreement, the Note or the other Loan Documents, including, without
limitation, any officer's certificate, balance sheet, statement of profit and
loss or other financial statement, survey, appraisal or insurance policy, Lender
shall not be deemed to have warranted, consented to, or affirmed the
sufficiency, legality or effectiveness of same, and such acceptance or approval
thereof shall not constitute any warranty or affirmation with respect thereto by
Lender.
Section 4.4 RELIANCE. Borrower recognizes and acknowledges that in
accepting the Loan Agreement, the Note, this Deed of Trust and the other Loan
Documents, Lender is expressly and primarily relying on the truth and accuracy
of the warranties and representations set forth in Article 3 of the Loan
Agreement without any obligation to investigate the Property and notwithstanding
any investigation of the Property by Lender; that such reliance existed on the
part of Lender prior to the
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date hereof; that the warranties and representations are a material inducement
to Lender in making the Loan; and that Lender would not be willing to make the
Loan and accept this Deed of Trust in the absence of the warranties and
representations as set forth in Article 3 of the Loan Agreement.
ARTICLE 5
FURTHER ASSURANCES
Section 5.1 RECORDING OF DEED OF TRUST, ETC. Borrower forthwith upon the
execution and delivery of this Deed of Trust and thereafter, from time to time,
will cause this Deed of Trust and any of the other Loan Documents creating a
Lien or security interest or evidencing the Lien hereof upon the 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 and perfect the Lien or security
interest hereof upon, and the interest of Lender in, the Property. Borrower will
pay all taxes, filing, registration or recording fees, and all expenses incident
to the preparation, execution, acknowledgment and/or recording of the Note, this
Deed of Trust, the other Loan Documents, any note, deed of trust or mortgage
supplemental hereto and any instrument of further assurance, and any
modification or amendment of any of the foregoing documents, 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 or mortgage supplemental hereto or any instrument of
further assurance, and any modification or amendment of any of the foregoing
documents, except where prohibited by law so to do.
Section 5.2 FURTHER ACTS, ETC. Borrower will, at the cost of Borrower,
and without expense to Lender, do, execute, acknowledge and deliver all and
every such further acts, deeds, conveyances, deeds of trust, assignments,
notices of assignments, transfers and assurances as Lender shall, from time to
time, reasonably require, for the better assuring, conveying, assigning,
transferring, and confirming unto Lender and Trustee the property and rights
hereby deeded, granted, bargained, sold, conveyed, confirmed, pledged, assigned,
warranted and transferred or intended now or hereafter so to be, or which
Borrower may be or may hereafter become bound to convey or assign to Trustee or
Lender, 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, or for complying with all Legal Requirements. Borrower, on demand, will
execute and deliver, and in the event it shall fail to so execute and deliver,
hereby authorizes Lender to execute in the name of Borrower or without the
signature of Borrower to the extent Lender may lawfully do so, one or more
financing statements to evidence more effectively the security interest of
Lender in the Property. Borrower grants to Lender an irrevocable power of
attorney coupled with an interest for the purpose of exercising and perfecting
any and all rights and remedies available to Lender at law and in equity,
including, without limitation, such rights and remedies available to Lender
pursuant to this SECTION 5.2.
Section 5.3 CHANGES IN TAX, DEBT, CREDIT AND DOCUMENTARY STAMP LAWS.
(a) If any law is enacted or adopted or amended after the date of
this Deed of Trust which deducts the Debt from the value of the Property for the
purpose of taxation or which imposes a tax, either directly or indirectly, on
the Debt or Lender's interest in the Property, Borrower
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will pay the tax, with interest and penalties thereon, if any. If Lender is
advised by counsel chosen by it that the payment of tax by Borrower would be
unlawful or taxable to Lender or unenforceable or provide the basis for a
defense of usury, then Lender shall have the option by written notice of not
less than one hundred twenty (120) days to declare the Debt immediately due and
payable.
(b) Borrower will not claim or demand or be entitled to any credit or
credits on account of the Debt for any part of the Taxes or Other Charges
assessed against the Property, or any part thereof, and no deduction shall
otherwise be made or claimed from the assessed value of the Property, or any
part thereof, for real estate tax purposes by reason of this Deed of Trust or
the Debt. If such claim, credit or deduction shall be required by law, Lender
shall have the option, by written notice of not less than one hundred twenty
(120) days, to declare the Debt immediately due and payable.
(c) 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, this Deed of Trust or any of the other Loan Documents or
shall impose any other tax or charge on the same, Borrower will pay for the
same, with interest and penalties thereon, if any.
Section 5.4 SPLITTING OF DEED OF TRUST. This Deed of Trust and the Note
may, at any time until the same shall be fully paid and satisfied, at the sole
election of Lender, be split or divided into two or more notes and two or more
deeds of trust, in such denominations as Lender shall determine in its sole
discretion (subject to the following sentence), each of which shall cover all or
a portion of the Property to be more particularly described therein. To that
end, Borrower, upon written request of Lender, shall execute, acknowledge and
deliver, or cause to be executed, acknowledged and delivered by the then owner
of the Property, to Lender and/or its designee or designees, substitute notes
and deeds of trust in such principal amounts, aggregating not more than the then
unpaid principal amount of the Note, and containing terms, provisions and
clauses substantially similar to those contained herein and in the Note, and
such other documents and instruments as may be reasonably required by Lender.
Section 5.5 REPLACEMENT DOCUMENTS. Upon receipt of an affidavit of an
officer of Lender as to the loss, theft, destruction or mutilation of the Note
or any other Loan Document which is not of public record, and, in the case of
any such mutilation, upon surrender and cancellation of the Note or such other
Loan Document, Borrower will issue, in lieu thereof, a replacement Note or a
replacement of such other Loan Document, dated the date of such lost, stolen,
destroyed or mutilated Note or other Loan Document in the same principal amount
thereof and otherwise of like tenor.
ARTICLE 6
DUE ON SALE/ENCUMBRANCE
Section 6.1 LENDER RELIANCE. Borrower acknowledges that Lender has
examined and relied on the experience of Borrower and its general partners,
members, principals and (if Borrower is a trust) beneficial owners in owning and
operating properties such as the Property in agreeing to make the Loan, and will
continue to rely on Borrower's ownership of the Property as a means of
maintaining the value of the Property as security for the payment and
performance of the
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Obligations, including the repayment of the Debt. Borrower acknowledges that
Lender has a valid interest in maintaining the value of the Property so as to
ensure that, should Borrower default in the payment and/or performance of the
Obligations, including the repayment of the Debt, Lender can recover the Debt by
a sale of the Property.
Section 6.2 NO TRANSFER. Borrower shall not permit or suffer any
Transfer, other than a Permitted Transfer, to occur. Additionally, Borrower
acknowledges and agrees that, pursuant to Section 8.2 of the Loan Agreement,
Lender shall not withhold its consent to the one-time conveyance of the
Property, the Medford Property and the Warrenton Property to one or more
Permitted Transferees provided that, among other things, Borrowers pay to Lender
a transfer fee equal to one percent (1.0%) of the original principal amount of
the Loan (as such term is defined in the Loan Agreement).
ARTICLE 7
RIGHTS AND REMEDIES UPON DEFAULT
Section 7.1 REMEDIES. To the extent permitted by law, upon the occurrence
and during the continuance of any Event of Default, Borrower agrees that Lender
or Trustee, or both, may take such action, without notice or demand, as it deems
advisable to protect and enforce its rights against Borrower and in and to the
Property, including, but not limited to, the following actions, each of which
may be pursued concurrently or otherwise, at such time and in such order as
Lender or Trustee may determine, in their sole discretion, without impairing or
otherwise affecting the other rights and remedies of Lender or Trustee:
(a) declare the entire unpaid Debt to be immediately due and payable;
(b) institute proceedings, judicial or otherwise, for the complete
foreclosure of this Deed of Trust under any applicable provision of law, in
which case the Property or any interest therein may be sold for cash or upon
credit in one or more parcels or in several interests or portions and in any
order or manner;
(c) with or without entry, to the extent permitted and pursuant to
the procedures provided by applicable law, institute proceedings for the partial
foreclosure of this Deed of Trust for the portion of the Debt then due and
payable, subject to the continuing lien and security interest of this Deed of
Trust for the balance of the Obligations not then due, unimpaired and without
loss of priority;
(d) sell for cash or upon credit the Property or any part thereof and
all estate, claim, demand, right, title and interest of Borrower therein and
rights of redemption thereof, pursuant to power of sale or otherwise, at one or
more sales, as an entirety or in parcels, at such time and place, upon such
terms and after such notice thereof, all as may be required or permitted by law;
and, without limiting the foregoing:
(i) In connection with any sale or sales hereunder, Lender or
the Trustee shall be entitled to elect to treat any of the Property which
consists of (x) a right in action, or (y) property that can be severed from
the Real Property covered hereby, or (z) any
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improvements (without causing structural damage thereto), as if the same
were personal property, and dispose of the same in accordance with
applicable law, separate and apart from the sale of the Real Property.
Where the Property consists of Real Property, Personal Property, Equipment
or Fixtures, whether or not such Personal Property or Equipment is located
on or within the Real Property, Lender and/or the Trustee shall be entitled
to elect to exercise its rights and remedies against any or all of the Real
Property, Personal Property, Equipment and Fixtures in such order and
manner as is now or hereafter permitted by applicable law;
(ii) Lender and/or the Trustee shall be entitled to elect to
proceed against any or all of the Real Property, Personal Property,
Equipment and Fixtures in any manner permitted under applicable law; and if
Lender and/or the Trustee so elects pursuant to applicable law, the power
of sale herein granted shall be exercisable with respect to all or any of
the Real Property, Personal Property, Equipment and Fixtures covered
hereby, as designated by Lender and/or the Trustee and Trustee is hereby
authorized and empowered to conduct any such sale of any Real Property,
Personal Property, Equipment and Fixtures in accordance with the procedures
applicable to Real Property;
(iii) Should Lender and/or the Trustee elect to sell any portion
of the Property which is Real Property or which is Personal Property,
Equipment or Fixtures that the Lender and/or the Trustee has elected under
applicable law to sell together with Real Property in accordance with the
laws governing a sale of the Real Property, Lender and/or the Trustee shall
give such notice of the occurrence and continuance of an Event of Default,
if any, and its election to sell such Property, each as may then be
required by law. Thereafter, upon the expiration of such time and the
giving of such notice of sale as may then be required by law, subject to
the terms hereof and of the other Loan Documents, and without the necessity
of any demand on Borrower, Lender and/or the Trustee at the time and place
specified in the notice of sale, shall sell such Real Property or part
thereof at public auction to the highest bidder for cash in lawful money of
the United States. Lender or the Trustee may from time to time postpone any
sale hereunder by public announcement thereof at the time and place noticed
for any such sale; and
(iv) If the Property consists of several lots, parcels or items
of property, Lender or the Trustee shall, subject to applicable law, (A)
designate the order in which such lots, parcels or items shall be offered
for sale or sold, or (B) elect to sell such lots, parcels or items through
a single sale, or through two or more successive sales, or in any other
manner Lender or the Trustee designates. Any Person, other than the
Trustee, including Borrower or Lender, may purchase at any sale hereunder.
Should Lender or the Trustee desire that more than one sale or other
disposition of the Property be conducted, Lender or the Trustee shall,
subject to applicable law, cause such sales or dispositions to be conducted
simultaneously, or successively, on the same day, or at such different days
or times and in such order as Lender or the Trustee may designate, and no
such sale shall terminate or otherwise affect the Lien of this Deed of
Trust on any part of the Property not sold until all the Obligations have
been satisfied in full. In the event Lender or the Trustee elects to
dispose of the Property through more than one sale, except as otherwise
provided by
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applicable law, Borrower agrees to pay the costs and expenses of each such
sale and of any judicial proceedings wherein such sale may be made;
(e) institute an action, suit or proceeding in equity for the
specific performance of any covenant, condition or agreement contained herein,
in the Note, in the Loan Agreement or in the other Loan Documents;
(f) recover judgment on the Note either before, during or after any
proceedings for the enforcement of this Deed of Trust or the other Loan
Documents;
(g) apply for the appointment of a receiver, trustee, liquidator or
conservator of the Property, without notice and without regard for the adequacy
of the security for the Debt and without regard for the solvency of Borrower,
any guarantor or indemnitor with respect to the Loan or any Person otherwise
liable for the payment of the Debt or any part thereof;
(h) the license granted to Borrower under SECTION 1.2 hereof shall
automatically be revoked and Lender may enter into or upon the Property, either
personally or by its agents, nominees or attorneys and dispossess Borrower and
its agents and servants therefrom, without liability for trespass, damages or
otherwise and exclude Borrower and its agents or servants wholly therefrom, and
take possession of all books, records and accounts relating thereto and Borrower
agrees to surrender possession of the Property and of such books, records and
accounts to Lender upon demand, and thereupon Lender may (i) use, operate,
manage, control, insure, maintain, repair, restore and otherwise deal with all
and every part of the Property and conduct the business thereat; (ii) complete
any construction on the Property in such manner and form as Lender deems
advisable; (iii) make alterations, additions, renewals, replacements and
improvements to or on the Property; (iv) exercise all rights and powers of
Borrower with respect to the Property, whether in the name of Borrower or
otherwise, including, without limitation, the right to make, cancel, enforce or
modify Leases, obtain and evict tenants and demand, xxx for, collect and receive
all Rents of the Property and every part thereof; (v) require Borrower to pay
monthly in advance to Lender, or any receiver appointed to collect the Rents,
the fair and reasonable rental value for the use and occupation of such part of
the Property as may be occupied by Borrower; (vi) require Borrower to vacate and
surrender possession of the Property to Lender or to such receiver and, in
default thereof, Borrower may be evicted by summary proceedings or otherwise;
and (vii) apply the receipts from the Property to the payment and performance of
the Obligations (including, without limitation, the payment of the Debt), in
such order, priority and proportions as Lender shall deem appropriate in its
sole discretion after deducting therefrom all expenses (including reasonable
attorneys' fees and costs) incurred in connection with the aforesaid operations
and all amounts necessary to pay the Taxes, Other Charges, insurance and other
expenses in connection with the Property, as well as just and reasonable
compensation for the services of Lender, its counsel, agents and employees;
(i) exercise 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: (i) the right to take possession of
the Fixtures, the Equipment and/or the Personal Property, or any part thereof,
and to take such other measures as Lender may deem necessary for the care,
protection and preservation of the Fixtures, the Equipment and the Personal
Property, and (ii) request Borrower, at its sole cost and expense, to assemble
the Fixtures, the Equipment and/or the
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Personal Property and make it available to Lender at a convenient place
acceptable to Lender. Any notice of sale, disposition or other intended action
by Lender with respect to the Fixtures, the Equipment and/or the Personal
Property sent to Borrower in accordance with the provisions hereof at least ten
(10) days prior to such action, shall constitute commercially reasonable notice
to Borrower;
(j) apply any sums then deposited or held in escrow or otherwise by
or on behalf of Lender in accordance with the terms of the Loan Agreement, this
Deed of Trust or any other Loan Document to the payment of the following items
in any order in its sole discretion:
(i) Taxes and Other Charges;
(ii) Insurance Premiums;
(iii) Interest on the unpaid principal balance of the Note;
(iv) Amortization of the unpaid principal balance of the Note;
and/or
(v) All other sums payable pursuant to the Note, the Loan
Agreement, this Deed of Trust and the other Loan Documents, including,
without limitation, the Prepayment Fee, if applicable, and advances made by
Lender pursuant to the terms of this Deed of Trust;
(k) pursue such other remedies as Lender may have under applicable
law; and/or
(l) apply the undisbursed balance of any Net Proceeds Deficiency
deposit, together with interest thereon, to the payment of the Debt in such
order, priority and proportions as Lender shall deem to be appropriate in its
sole discretion.
In the event of a sale, by foreclosure, power of sale or otherwise, of less
than all of Property, this Deed of Trust shall continue as a Lien and security
interest on the remaining portion of the Property unimpaired and without loss of
priority.
Section 7.2 APPLICATION OF PROCEEDS. The purchase money proceeds and
avails of any disposition of the Property or any part thereof, or any other sums
collected by Lender pursuant to the Note, this Deed of Trust or the other Loan
Documents, may be applied by Lender to the payment of the Obligations in such
priority and proportions as Lender in its discretion shall deem proper, to the
extent consistent with law.
Section 7.3 RIGHT TO CURE DEFAULTS. Upon the occurrence and during the
continuance of any Event of Default or if Borrower fails to make any payment or
to do any act as herein provided, Lender (i) may, but without any obligation to
do so and without notice to or demand on Borrower, and without releasing
Borrower from any obligation hereunder, make or do the same in such manner and
to such extent as Lender may deem reasonably necessary to protect the security
hereof, and (ii) is authorized to enter upon the Property for such purposes, or
appear in, defend or bring any action or proceeding to protect its interest in
the Property or to foreclose this Deed of Trust or to collect the Debt, and the
cost and expense thereof (including reasonable attorneys' fees and expenses, to
the extent permitted by law), with interest as provided in this SECTION 7.3,
shall constitute a portion of the
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Debt and shall be due and payable to Lender upon demand. All such costs and
expenses incurred by Lender in remedying any Default or Event of Default or in
appearing in, defending or bringing any action or proceeding, as hereinabove
provided, shall bear interest at the Default Rate, for the period beginning on
the first day after notice from Lender that such cost or expense was incurred
and continuing until the date of payment to Lender. All such costs and expenses
incurred by Lender together with interest thereon calculated at the Default Rate
shall be deemed to constitute a portion of the Debt and to be secured by this
Deed of Trust and the other Loan Documents and shall be immediately due and
payable upon demand by Lender therefor.
Section 7.4 ACTIONS AND PROCEEDINGS. Lender and/or Trustee shall have the
right to appear in and defend any action or proceeding brought with respect to
the Property and to bring any action or proceeding, in the name and on behalf of
Borrower, which Lender, in its reasonable discretion, decides should be brought
to protect its interest in the Property.
Section 7.5 RECOVERY OF SUMS REQUIRED TO BE PAID. Lender 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 Lender or Trustee thereafter to bring an action of foreclosure, or any other
action, for any Event of Default by Borrower existing at the time such earlier
action was commenced.
Section 7.6 EXAMINATION OF BOOKS AND RECORDS. At reasonable times and
upon reasonable written notice, Lender, its agents, accountants and attorneys,
shall have the right to examine the records, books and management and other
papers of Borrower which reflect upon its financial condition, either at the
Property or at any office regularly maintained by Borrower where such books and
records are located. Lender and its agents shall have the right to make copies
and extracts from the foregoing records and other papers. In addition, at
reasonable times and upon reasonable notice (which may be given verbally),
Lender, its agents, accountants and attorneys shall have the right to examine
and audit the books and records of Borrower pertaining to the income, expenses
and operation of the Property during reasonable business hours at any office of
Borrower where the books and records are located. This SECTION 7.6 shall apply
throughout the term of the Note and without regard to whether an Event of
Default has occurred or is continuing.
Section 7.7 OTHER RIGHTS, ETC.
(a) The failure of Lender or Trustee 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. Borrower shall not be relieved of Borrower's obligations
hereunder by reason of (i) the failure of Lender or Trustee to comply with any
request of Borrower or any guarantor or indemnitor with respect to the Loan to
take any action to foreclose this Deed of Trust or otherwise enforce any of the
provisions hereof or of the Note or the other Loan Documents, (ii) the release,
regardless of consideration, of the whole or any part of the Property, or of any
Person liable for the Obligations or any portion thereof, or (iii) any agreement
or stipulation by Lender extending the time of payment or otherwise modifying or
supplementing the terms of the Note, this Deed of Trust or the other Loan
Documents.
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(b) It is agreed that the risk of loss or damage to the Property is
on Borrower, and Lender shall have no liability whatsoever for any decline in
value of the Property, for failure to maintain the Policies, or for failure to
determine whether insurance in force is adequate as to the amount of risks
insured unless due to Lender's gross negligence or intentional misconduct.
Possession by Lender shall not be deemed an election of judicial relief, if any
such possession is requested or obtained, with respect to any Property or
collateral not in Lender's possession.
(c) Lender may resort for the payment and performance of the
Obligations (including, but not limited to, the payment of the Debt) to any
other security held by Lender in such order and manner as Lender, in its
discretion, may elect. Lender or Trustee may take action to recover the Debt, or
any portion thereof, or to enforce the Other Obligations or any covenant hereof,
without prejudice to the right of Lender or Trustee thereafter to foreclose this
Deed of Trust. The rights of Lender or Trustee 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 Lender or Trustee shall be construed as an
election to proceed under any one provision herein to the exclusion of any other
provision. Neither Lender nor Trustee shall 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.
Section 7.8 RIGHT TO RELEASE ANY PORTION OF THE PROPERTY. Lender may
release any portion of the Property for such consideration as Lender may require
without, as to the remainder of the Property, in any way impairing or affecting
the Lien or priority of this Deed of Trust, or improving the position of any
subordinate lienholder with respect thereto, except to the extent that the Debt
shall have been reduced by the actual monetary consideration, if any, received
by Lender for such release, and Lender may accept by assignment, pledge or
otherwise any other property in place thereof as Lender may require without
being accountable for so doing to any other lienholder. This Deed of Trust shall
continue as a Lien and security interest in the remaining portion of the
Property.
Section 7.9 VIOLATION OF LAWS. If the Property is not in compliance with
all Legal Requirements, Lender may reasonably impose additional requirements
upon Borrower in connection herewith, including, without limitation, monetary
reserves or financial equivalents.
Section 7.10 RECOURSE AND CHOICE OF REMEDIES. Notwithstanding any other
provision of this Deed of Trust or the Loan Agreement, including, without
limitation, Section 11.22 of the Loan Agreement, and to the extent permitted by
law, Lender and the other Indemnified Parties (as hereinafter defined) are
entitled to enforce the obligations of Borrower and any guarantor or indemnitor
of the Loan contained in SECTIONS 8.1, 8.2 and 8.3 herein and SECTION 9.2 of the
Loan Agreement without first resorting to or exhausting any security or
collateral and without first having recourse to the Note or any of the Property,
through foreclosure, exercise of a power of sale or acceptance of a deed in lieu
of foreclosure or otherwise, and in the event Lender commences a foreclosure
action against the Property, or otherwise causes Trustee to exercise the power
of sale pursuant to this Deed of Trust, Lender shall be entitled to pursue a
deficiency judgment with respect to such obligations against Borrower and any
guarantor or indemnitor with respect to the Loan. The provisions of
SECTIONS 8.1, 8.2 and 8.3 herein and SECTION 9.2 of the Loan Agreement are
exceptions to any non-recourse or exculpation provisions in the Loan Agreement,
the Note, this Deed of Trust and/or the other Loan Documents, and Borrower and
any guarantor or indemnitor with respect to the
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Loan are fully and personally liable for the Obligations set forth in said
SECTIONS 8.1, 8.2 and 8.3 herein and SECTION 9.2 of the Loan Agreement. The
liability of Borrower and any guarantor or indemnitor with respect to the
Obligations set forth in SECTIONS 8.1, 8.2 and 8.3 herein and SECTION 9.2 of the
Loan Agreement is not limited to the original principal amount of the Note.
Notwithstanding the foregoing, nothing herein shall inhibit or prevent Lender or
Trustee from foreclosing or exercising a power of sale pursuant to this Deed of
Trust or exercising any other rights and remedies pursuant to the Loan
Agreement, the Note, this Deed of Trust and/or the other Loan Documents, whether
simultaneously with foreclosure proceedings or in any other sequence. A separate
action or actions may be brought and prosecuted against Borrower with respect to
the Obligations set forth in SECTIONS 8.1, 8.2 and 8.3 herein and SECTION 9.2 of
the Loan Agreement, whether or not an action is brought against any other Person
and whether or not any other Person is joined in such action or actions. In
addition, Lender shall have the right but not the obligation to join and
participate in, as a party if it so elects, any administrative or judicial
proceedings or actions initiated in connection with any matter addressed in the
Environmental Indemnity.
Section 7.11 RIGHT OF ENTRY. Upon reasonable notice (which may be given
verbally) to Borrower, Lender and its agents shall have the right to enter and
inspect the Property at all reasonable times.
ARTICLE 8
INDEMNIFICATION
Section 8.1 GENERAL INDEMNIFICATION. Borrower shall, at its sole cost and
expense, protect, defend, indemnify, release and hold harmless the Indemnified
Parties from and against any and all claims, suits, liabilities (including,
without limitation, strict liabilities), actions, proceedings, obligations,
debts, damages, losses, costs, expenses, diminutions in value, fines, penalties,
charges, fees, expenses, judgments, awards, amounts paid in settlement, punitive
damages, foreseeable and unforeseeable consequential damages, of whatever kind
or nature (including, but not limited to, reasonable attorneys' fees and other
costs of defense) (collectively, the "Losses"), imposed upon or incurred by or
asserted against any Indemnified Parties and directly or indirectly arising out
of or in any way relating to any one or more of the following: (a) ownership of
this Deed of Trust, the Property or any interest therein or receipt of any
Rents; (b) any amendment to, or restructuring of, the Obligations (including,
but not limited to, the Debt) and the Note, the Loan Agreement, this Deed of
Trust and/or any other Loan Document; (c) any and all lawful action that may be
taken by Lender in connection with the enforcement of the provisions of this
Deed of Trust or the Loan Agreement or the Note or any of the other Loan
Documents, whether or not suit is filed in connection with same, or in
connection with Borrower, any guarantor or indemnitor and/or any partner,
member, joint venturer or shareholder thereof becoming a party to a voluntary or
involuntary federal or state bankruptcy, insolvency or similar proceeding; (d)
any accident, injury to or death of persons or loss of or damage to property
occurring in, on or about the Property or any part thereof or on the adjoining
sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways
not attributable to Lender's gross negligence or intentional misconduct; (e) any
use, non-use or condition in, on or about the Property or any part thereof or on
the adjoining sidewalks, curbs, adjacent property or adjacent parking areas,
streets or ways; (f) any failure on the part of Borrower to perform or to be in
compliance in any material respect with any of the terms of this Deed of Trust;
(g) performance of any labor or services
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or the furnishing of any materials or other property in respect of the Property
or any part thereof; (h) the failure of any Person to file timely with the
Internal Revenue Service an accurate Form 0000-X, Xxxxxxxxx for Recipients of
Proceeds from Real Estate, Broker and Barter Exchange Transactions, which may be
required in connection with this Deed of Trust, or to supply a copy thereof in a
timely fashion to the recipient of the proceeds of the transaction in connection
with which this Deed of Trust is made; (i) any failure of the Property to be in
compliance in any material respect with any Legal Requirements; (j) the
enforcement by any of the Indemnified Parties of the provisions of this ARTICLE
8; (k) any and all claims and demands whatsoever which may be asserted against
Lender 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
Lease not attributable to Lender's gross negligence or intentional misconduct;
(1) the payment of any commission, charge or brokerage fee to anyone claiming
through Borrower (or any affiliate thereof) which may be payable in connection
with the funding of the Loan; or (m) any misrepresentation of a material fact
made by Borrower in this Deed of Trust or in any other Loan Document. Any
amounts payable to Lender by reason of the application of this SECTION 8.1 shall
become immediately due and payable and shall bear interest at the Default Rate
from the date any Loss is sustained by Lender until such amounts and any
applicable interest are paid. For purposes of this ARTICLE 8, the term
"Indemnified Parties" means (A) Lender and any Person who is or will have been
involved in the origination of the Loan, (B) any Person who is or will have been
involved in the servicing of the Loan secured hereby, (C) any Person in whose
name the encumbrance created by this Deed of Trust is or will have been
recorded, (D) Persons who may hold or acquire or will have held a full or
partial interest in the Loan (including, but not limited to, investors or
prospective investors in the Securities, as well as custodians, trustees and
other fiduciaries who hold, have held or may hold a full or partial interest in
the Loan secured hereby for the benefit of third parties), and (E) the
respective directors, officers, shareholders, partners, members, employees,
agents, servants, representatives, contractors, subcontractors, affiliates,
subsidiaries, participants, successors and assigns of any and all of the
foregoing (including, but not limited to, any other Person who holds or acquires
or will have held a participation or other full or partial interest in the Loan,
whether during the term of the Loan or as a part of or following a foreclosure
of the Loan, and including, but not limited to, any successors by merger,
consolidation or acquisition of all or a substantial portion of Lender's assets
and business).
Section 8.2 MORTGAGE AND/OR INTANGIBLE TAX. Borrower shall, at its sole
cost and expense, protect, defend, indemnify, release and hold harmless the
Indemnified Parties from and against any and all Losses imposed upon or incurred
by or asserted against any Indemnified Parties and directly or indirectly
arising out of or in any way relating to any tax on the making and/or recording
of this Deed of Trust, the Note or any of the other Loan Documents, but
excluding any income, franchise or other similar taxes.
Section 8.3 ERISA INDEMNIFICATION. Borrower shall, at its sole cost and
expense, protect, defend, indemnify, release and hold harmless the Indemnified
Parties from and against any and all Losses (including, without limitation,
reasonable attorneys' fees and costs incurred in the investigation, defense
and/or settlement of Losses incurred in correcting any prohibited transaction or
in the sale of a prohibited loan, and in obtaining any individual prohibited
transaction exemption under ERISA that may be required, in Lender's reasonable
discretion) that Lender may incur, directly or indirectly, as a result of a
default under Section 4.2.13 of the Loan Agreement.
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Section 8.4 DUTY TO DEFEND; ATTORNEYS' FEES AND OTHER FEES AND EXPENSES.
Upon written request by any Indemnified Party, Borrower shall defend such
Indemnified Party (if requested by any Indemnified Party, in the name of the
Indemnified Party) by attorneys and other professionals reasonably approved by
the Indemnified Parties. Notwithstanding the foregoing, if the defendants in any
such claim or proceeding include both Borrower and any Indemnified Party and
Borrower and such Indemnified Party shall have reasonably concluded that there
are any legal defenses available to it and/or other Indemnified Parties that are
different from or in addition to those available to Borrower, such Indemnified
Party shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on behalf of
such Indemnified Party, PROVIDED that no compromise or settlement shall be
entered without Borrower's consent, which consent shall not be unreasonably
withheld or delayed. Upon demand, Borrower shall pay or, in the sole and
absolute discretion of the Indemnified Parties, reimburse, the Indemnified
Parties for the payment of the reasonable fees and disbursements of attorneys,
engineers, environmental consultants, laboratories and other professionals in
connection therewith.
ARTICLE 9
WAIVERS
Section 9.1 WAIVER OF COUNTERCLAIM. To the extent permitted by applicable
law, Borrower hereby waives the right to assert a counterclaim, other than a
mandatory or compulsory counterclaim, in any action or proceeding brought
against it by Lender arising out of or in any way connected with this Deed of
Trust, the Loan Agreement, the Note, any of the other Loan Documents or the
Obligations.
Section 9.2 MARSHALLING AND OTHER MATTERS. To the extent permitted by
applicable law, Borrower hereby waives the benefit of all appraisement,
valuation, stay, extension, reinstatement and redemption laws now or hereafter
in force and all rights of marshalling in the event of any sale hereunder of the
Property or any part thereof or any interest therein. Further, to the extent
permitted by applicable law, Borrower hereby expressly waives any and all rights
of redemption from sale under any order or decree of foreclosure of this Deed of
Trust on behalf of Borrower, and on behalf of each and every Person acquiring
any interest in or title to the Property subsequent to the date of this Deed of
Trust.
Section 9.3 WAIVER OF NOTICE. To the extent permitted by applicable law,
Borrower shall not be entitled to any notices of any nature whatsoever from
Lender or Trustee, except with respect to matters for which this Deed of Trust
or the Loan Documents specifically and expressly provide for the giving of
notice by Lender or Trustee to Borrower, and except with respect to matters for
which Lender or Trustee is required by applicable law to give notice, and
Borrower hereby expressly waives the right to receive any notice from Lender or
Trustee with respect to any matter for which this Deed of Trust does not
specifically and expressly provide for the giving of notice by Lender or Trustee
to Borrower.
Section 9.4 WAIVER OF STATUTE OF LIMITATIONS. To the extent permitted by
applicable law, Borrower hereby expressly waives and releases its right to plead
any statute of limitations as a
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defense to the payment and performance of the Obligations (including, without
limitation, the payment of the Debt).
Section 9.5 WAIVER OF JURY TRIAL. BORROWER HEREBY AGREES NOT TO ELECT A
TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND FOREVER WAIVES ANY
RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR
HEREAFTER EXIST, WITH REGARD TO THE NOTE, 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 BORROWER AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE
AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE.
LENDER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING
AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER.
Section 9.6 SURVIVAL. The indemnifications made pursuant to ARTICLE 8
herein and the representations and warranties, covenants, and other obligations
arising under the Environmental Indemnity, shall continue indefinitely in full
force and effect and shall survive and shall in no way be impaired by (a) any
satisfaction, release or other termination of this Deed of Trust or any other
Loan Document, (b) any assignment or other transfer of all or any portion of
this Deed of Trust or any other Loan Document or Lender's interest in the
Property (but, in such case, such indemnifications shall benefit both the
Indemnified Parties and any such assignee or transferee), (c) any exercise of
Lender's rights and remedies pursuant hereto, including, but not limited to,
foreclosure or acceptance of a deed in lieu of foreclosure, any exercise of any
rights and remedies pursuant to the Loan Agreement, the Note or any of the other
Loan Documents, any transfer of all or any portion of the Property (whether by
Borrower or by Lender following foreclosure or acceptance of a deed in lieu of
foreclosure or at any other time), (d) any amendment to this Deed of Trust, the
Loan Agreement, the Note or any other Loan Document, and/or (e) any act or
omission that might otherwise be construed as a release or discharge of Borrower
from the Obligations or any portion thereof.
ARTICLE 10
EXCULPATION
The provisions of Section 11.22 of the Loan Agreement are hereby
incorporated by reference into this Deed of Trust to the same extent and with
the same force as if fully set forth herein.
ARTICLE 11
NOTICES
All notices or other written communications hereunder shall be delivered in
accordance with Section 11.6 of the Loan Agreement.
ARTICLE 12
APPLICABLE LAW
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Section 12.1 GOVERNING LAW; JURISDICTION; SERVICE OF PROCESS. a) (a) THIS
DEED OF TRUST WAS NEGOTIATED IN THE STATE OF NEW YORK, AND MADE BY BORROWER AND
ACCEPTED BY LENDER IN THE STATE OF NEW YORK, AND THE PROCEEDS OF THE NOTE
SECURED HEREBY 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 EMBODIED HEREBY, 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 SUCH STATE (WITHOUT REGARD TO
PRINCIPLES OF CONFLICT LAWS) AND ANY APPLICABLE LAW 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 HERETO AND
PURSUANT TO THE OTHER LOAN DOCUMENTS WITH RESPECT TO THE PROPERTY SHALL BE
GOVERNED BY, AND CONSTRUED ACCORDING TO, THE LAW OF THE STATE IN WHICH THE
PROPERTY IS LOCATED, IT BEING UNDERSTOOD THAT, TO THE FULLEST EXTENT PERMITTED
BY THE LAW OF SUCH STATE, THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE
CONSTRUCTION, VALIDITY AND ENFORCEABILITY OF ALL LOAN DOCUMENTS AND ALL OF THE
OBLIGATIONS ARISING HEREUNDER AND THEREUNDER. TO THE FULLEST EXTENT PERMITTED BY
LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT
THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS DEED OF TRUST AND/OR THE
OTHER LOAN DOCUMENTS, AND THIS DEED OF TRUST AND THE OTHER LOAN DOCUMENTS SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(b) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER
ARISING OUT OF OR RELATING TO THIS DEED OF TRUST MAY, AT LENDER'S OPTION, BE
INSTITUTED IN ANY FEDERAL OR STATE COURT IN XXX XXXX XX XXX XXXX, XXXXXX XX XXX
XXXX, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND
BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE
AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND BORROWER
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT,
ACTION OR PROCEEDING. BORROWER DOES HEREBY DESIGNATE AND APPOINT
XXXXXX XXXXXX & XXXXX
000 XXXX 00XX XXXXXX
XXXXX 0000
000
XXX XXXX, XX 00000
ATTENTION: XXXXX XXXXXXXXX, ESQ. (CHICAGO OFFICE)
AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY
AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN
ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF
PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE
MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN
EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER IN ANY SUCH SUIT,
ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER (I) SHALL GIVE PROMPT
NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II)
MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT
WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE
DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL
PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN
OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.
NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT OF LENDER OR TRUSTEE TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST BORROWER IN ANY OTHER JURISDICTION.
Section 12.2 USURY LAWS. Notwithstanding anything to the contrary, (a) all
agreements and communications between Borrower and Lender are hereby and shall
automatically be limited so that, after taking into account all amounts deemed
to constitute interest, the interest contracted for, charged or received by
Lender shall never exceed the Maximum Legal Rate, (b) in calculating whether any
interest exceeds the Maximum Legal Rate, all such interest shall be amortized,
prorated, allocated and spread over the full amount and term of all principal
indebtedness of Borrower to Lender, and (c) if through any contingency or event,
Lender receives or is deemed to receive interest in excess of the Maximum Legal
Rate, any such excess shall be deemed to have been applied toward payment of the
principal of any and all then outstanding indebtedness of Borrower to Lender, or
if there is no such indebtedness, shall immediately be returned to Borrower.
Section 12.3 PROVISIONS SUBJECT TO APPLICABLE LAW. All rights, powers and
remedies provided in this Deed of Trust may be exercised only to the extent that
the exercise thereof does not violate any applicable provisions of law and are
intended to be limited to the extent necessary so that they will not render this
Deed of Trust invalid, unenforceable or not entitled to be recorded, registered
or filed under the provisions of any applicable law. If any term of this Deed of
Trust or any application thereof shall be invalid or unenforceable, the
remainder of this Deed of Trust and any other application of the term shall not
be affected thereby.
ARTICLE 13
DEFINITIONS
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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 the singular or plural form and the word "Borrower" shall
mean "each Borrower and any subsequent owner or owners of the Property or any
part thereof or any interest therein," the word "Lender" shall mean "Lender and
any subsequent holder of the Note," the word "Note" shall mean "the Note and any
other evidence of indebtedness secured by this Deed of Trust," the word
"Property" shall include any portion of the Property and any interest therein,
and the phrases "attorneys' fees", "legal fees" and "counsel fees" shall include
any and all attorneys', paralegal and law clerk fees and disbursements,
including, but not limited to, fees and disbursements at the pre-trial, trial
and appellate levels, incurred or paid by Lender in protecting its interest in
the Property, the Leases and/or the Rents and/or in enforcing its rights
hereunder. Whenever the context may require, any pronouns used herein shall
include the corresponding masculine, feminine or neuter forms.
ARTICLE 14
MISCELLANEOUS PROVISIONS
Section 14.1 NO ORAL CHANGE. This Deed of Trust, and any provisions
hereof, may not be modified, amended, waived, extended, changed, discharged or
terminated orally or by any act or failure to act on the part of Borrower or
Lender, but only by an agreement in writing signed by the party(ies) against
whom enforcement of any modification, amendment, waiver, extension, change,
discharge or termination is sought.
Section 14.2 SUCCESSORS AND ASSIGNS. This Deed of Trust shall be binding
upon, and shall inure to the benefit of, Borrower and Lender and their
respective successors and permitted assigns, as set forth in the Loan Agreement.
Section 14.3 INAPPLICABLE PROVISIONS. 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, such provision shall be
fully severable and this Deed of Trust shall be construed and enforced as if
such illegal, invalid or unenforceable provision had never comprised a part of
this Deed of Trust, and the remaining provisions of this Deed of Trust shall
remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance from this Deed of Trust,
unless such continued effectiveness of this Deed of Trust, as modified, would be
contrary to the basic understandings and intentions of the parties as expressed
herein.
Section 14.4 HEADINGS, ETC. The headings and captions of the 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.
Section 14.5 SUBROGATION. If any or all of the proceeds of the Note have
been used to extinguish, extend or renew any indebtedness heretofore existing
against the Property, then, to the extent of the funds so used, Lender shall be
subrogated to all of the rights, claims, liens, titles and interests existing
against the Property heretofore held by, or in favor of, the holder of such
indebtedness and such former rights, claims, liens, titles and interests, if
any, are not waived, but rather are continued in full force and effect in favor
of Lender and are merged with the Lien and
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security interest created herein as cumulative security for the payment,
performance and discharge of the Obligations (including, but not limited to, the
payment of the Debt).
Section 14.6 ENTIRE AGREEMENT. The Note, the Loan Agreement, this Deed of
Trust and the other Loan Documents constitute the entire understanding and
agreement between Borrower and Lender with respect to the transactions arising
in connection with the Obligations and supersede all prior written or oral
understandings and agreements between Borrower and Lender with respect thereto.
Borrower hereby acknowledges that, except as incorporated in writing in the
Note, the Loan Agreement, this Deed of Trust and the other Loan Documents, there
are not, and were not, and no Persons are or were authorized by Lender to make,
any representations, understandings, stipulations, agreements or promises, oral
or written, with respect to the transaction which is the subject of the Note,
the Loan Agreement, this Deed of Trust and the other Loan Documents.
Section 14.7 LIMITATION ON LENDER'S RESPONSIBILITY. No provision of this
Deed of Trust shall operate to place any obligation or liability for the
control, care, management or repair of the Property upon Lender, nor shall it
operate to make Lender responsible or liable for any waste committed on the
Property by the Tenants or any other Person, or for any dangerous or defective
condition of the Property, or for any negligence in the management, upkeep,
repair or control of the Property resulting in loss or injury or death to any
Tenant, licensee, employee or stranger unless arising by, through or under
Lender's gross negligence or intentional misconduct. Nothing herein contained
shall be construed as constituting Lender a "mortgagee in possession."
Section 14.8 RECITALS. The recitals hereof are a part hereof, form a basis
for this Deed of Trust and shall be considered PRIMA FACIE evidence of the facts
and documents referred to therein.
ARTICLE 15
DEED OF TRUST PROVISIONS
Section 15.1 CONCERNING THE TRUSTEE. Trustee shall be under no duty to
take any action hereunder except as expressly required hereunder or by law, or
to perform any act which would involve Trustee in any expense or liability or to
institute or defend any suit in respect hereof, unless properly indemnified to
Trustee's reasonable satisfaction. Trustee, by acceptance of this Deed of Trust,
covenants to perform and fulfill the trusts herein created, being liable,
however, only for willful negligence or misconduct, and hereby waives any
statutory fee and agrees to accept reasonable compensation, in lieu thereof, for
any services rendered by Trustee in accordance with the terms hereof. Trustee
may resign at any time upon giving thirty (30) days' notice to Borrower and to
Lender. Lender may remove Trustee at any time or from time to time and select a
successor trustee. In the event of the death, removal, resignation, refusal to
act or inability to act of Trustee, or in Lender's sole discretion for any
reason whatsoever, Lender may, without notice and without specifying any reason
therefor and without applying to any court, select and appoint a successor
trustee, by an instrument recorded wherever this Deed of Trust is recorded, and
all powers, rights, duties and authority of Trustee, as aforesaid, shall
thereupon become vested in such successor. Such substitute trustee shall not be
required to give bond for the faithful performance of the duties of Trustee
hereunder unless required by Lender. The procedure provided for in this
paragraph for substitution of Trustee shall be in addition to and not in
exclusion of any other provisions for
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substitution, by law or otherwise.
Section 15.2 TRUSTEE'S FEES. Borrower shall pay all reasonable costs, fees
and expenses incurred by Trustee and Trustee's agents and counsel in connection
with the performance by Trustee of Trustee's duties hereunder and all such
costs, fees and expenses shall be secured by this Deed of Trust.
Section 15.3 CERTAIN RIGHTS. With the approval of Lender, Trustee shall
have the right to take any and all of the following actions: (i) to select,
employ and advise with counsel (who may be, but need not be, counsel for Lender)
upon any matters arising hereunder, including the preparation, execution and
interpretation of the Loan Agreement, the Note, this Deed of Trust or the other
Loan Documents, and shall be fully protected in relying as to legal matters on
the advice of counsel, (ii) to execute any of the trusts and powers hereof and
to perform any duty hereunder either directly or through its agents or
attorneys, (iii) to select and employ, in and about the execution of his duties
hereunder, suitable accountants, engineers and other experts, agents and
attorneys-in-fact, either corporate or individual, not regularly in the employ
of Trustee, and Trustee shall not be answerable for any act, default, negligence
or misconduct of any such accountant, engineer or other expert, agent or
attorney-in-fact, if selected with reasonable care, or for any error of judgment
or act done by Trustee in good faith, or be otherwise responsible or accountable
under any circumstances whatsoever, except for Trustee's gross negligence or bad
faith, and (iv) to take any and all other lawful action as Lender may instruct
Trustee to take to protect or enforce Lender's rights hereunder. Trustee shall
not be personally liable in case of entry by Trustee, or anyone entering by
virtue of the powers herein granted to Trustee, upon the Property for debts
contracted for or liability or damages incurred in the management or operation
of the Property. Trustee shall have the right to rely on any instrument,
document or signature authorizing or supporting an action taken or proposed to
be taken by Trustee hereunder, believed by Trustee in good faith to be genuine.
Trustee shall be entitled to reimbursement for actual expenses incurred by
Trustee in the performance of Trustee's duties hereunder and to reasonable
compensation for such of Trustee's services hereunder as shall be rendered.
Section 15.4 RETENTION OF MONEY. All moneys received by Trustee shall,
until used or applied as herein provided, be held in trust for the purposes for
which they were received, but need not be segregated in any manner from any
other moneys (except to the extent required by applicable law) and Trustee shall
be under no liability for interest on any moneys received by Trustee hereunder.
Section 15.5 PERFECTION OF APPOINTMENT. Should any deed, conveyance or
instrument of any nature be required from Borrower by any Trustee or substitute
trustee to more fully and certainly vest in and confirm to the Trustee or
substitute trustee such estates rights, powers and duties, then, upon request by
Trustee or any substitute trustee, any and all such deeds, conveyances and
instruments shall be made, executed, acknowledged and delivered and shall be
caused to be recorded and/or filed by Borrower.
Section 15.6 SUCCESSION INSTRUMENTS. Any substitute trustee appointed
pursuant to any of the provisions hereof shall, without any further act, deed or
conveyance, become vested with all the
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estates, properties, rights, powers and trusts of its predecessor in the rights
hereunder with like effect as if originally named as Trustee herein; but
nevertheless, upon the written request of Lender 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.
ARTICLE 16
STATE-SPECIFIC PROVISIONS
Section 16.1 PRINCIPLES OF CONSTRUCTION. In the event of any
inconsistencies between the terms and conditions of this ARTICLE 16 and the
other terms and conditions of this Deed of Trust, the terms and conditions of
this ARTICLE 16 shall control and be binding.
[PROVISIONS TO BE INSERTED FOR STATE IN WHICH PROPERTY IS LOCATED]
IN WITNESS WHEREOF, THIS DEED OF TRUST has been executed by Borrower as of
the day and year first above written.
XXXXXXXX OUTLET CENTER LLC,
a Delaware limited liability company
By:
----------------------------------
Name:
Title:
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ACKNOWLEDGMENT
[INSERT STATE SPECIFIC ACKNOWLEDGMENT]
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EXHIBIT A
LEGAL DESCRIPTION
(Attached hereto)
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