EXHIBIT 10.5
RETURN TO:
Commercial Settlements, Inc.
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DEED OF TRUST, ASSIGNMENT OF LEASES
AND RENTS, SECURITY
AGREEMENT AND FIXTURE FILING
THIS DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT
AND FIXTURE FILING (as the same may be amended, restated, extended, supplemented
or otherwise modified from time to time, this "Deed of Trust"), is made as of
the 15th day of December, 2000, by HERALD SQUARE LLC, a Delaware limited
liability company, having its principal place of business c/o HRPT Properties
Trust, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("Trustor"), to
LAWYERS TITLE REALTY SERVICES, INC., a Virginia corporation, having its place of
business c/o Commercial Settlements, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ (the "Trustee"), for the benefit of ▇▇▇▇▇▇▇ ▇▇▇▇▇
MORTGAGE LENDING, INC., a Delaware corporation, having its place of business at
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successors and assigns, the "Beneficiary"). Capitalized terms used herein but
not otherwise defined shall have the respective meanings assigned to such terms
in the Loan Agreement (hereinafter defined).
W I T N E S S E T H:
To secure the payment of a loan (the "Loan") in the original principal
sum of TWO HUNDRED SIXTY MILLION AND NO/100 DOLLARS ($260,000,000), lawful money
of the United States of America, being made from Beneficiary to Trustor and the
other Borrowers (as defined on Exhibit B attached hereto) on the date hereof
pursuant to the terms and conditions of a certain Loan and Security Agreement,
dated as of the date hereof (as amended or modified, the "Loan Agreement"),
among Trustor, the other Borrowers and Beneficiary, which Loan is evidenced by
and is to be paid with interest according to a certain Promissory Note, dated as
of the date hereof (as amended, modified, renewed or restated and together with
any substitutes or replacements therefor, the "Note"), made by Trustor and the
other Borrowers to Beneficiary and all other sums due hereunder, or otherwise
due under the Loan Documents (as defined in the Loan Agreement) (the principal
amount of the Loan, together with interest thereon and all sums due hereunder
and under the Loan Agreement, the Note and the other Loan Documents being
collectively called the "Debt"), and all of the agreements, covenants,
conditions, warranties, representations and other obligations (other than to
repay the Debt) made or undertaken by Trustor or any other person or entity to
Beneficiary or others as set forth in the Loan Documents (collectively, the
"Obligations"), Trustor has mortgaged, given, granted, bargained, sold,
alienated, enfeoffed, conveyed, confirmed, pledged, assigned, and hypothecated
and by these presents does hereby give, grant, bargain, sell, alien, enfeoff,
convey, confirm, pledge and assign unto Trustee, in trust, for the benefit of
Beneficiary with power of sale and right of entry and possession, and with
mortgage covenants, all of Trustor's right, title, interest and estate in and to
the Ground Lease (as hereinafter defined) covering the real property described
on Exhibit A attached hereto (the "Premises") and the buildings, structures,
fixtures, additions, enlargements, extensions, modifications, repairs,
replacements and improvements now or hereafter located thereon (the
"Improvements");
TOGETHER WITH: all right, title, interest and estate of Trustor now
owned, or hereafter acquired, in and to the following property, rights,
interests and estates (the Ground Lease, the Premises, the Improvements together
with the following property, rights, interests and estates being hereinafter
described are collectively referred to herein as the "Mortgaged Property"):
(a) all easements, rights-of-way, strips and gores of land, streets,
ways, alleys, passages, sewer rights, water, water courses, water rights and
powers, air rights and development rights, and all estates, rights, titles,
interests, privileges, liberties, tenements, hereditaments and appurtenances of
any nature whatsoever, in any way belonging, relating or pertaining to the
Premises and the Improvements and the reversion and reversions, remainder and
remainders, and all land lying in the bed of any street, road or avenue, opened
or proposed, in front of or adjoining the Premises, to the center line thereof
and all the estates, rights, titles, interests, dower and rights of dower,
courtesy and rights of courtesy, property, possession, claim and demand
whatsoever, both at law and in equity, of Trustor of, in and to the Premises and
the Improvements and every part and parcel thereof, with the appurtenances
thereto;
(b) all machinery, equipment, fixtures (including, but not limited to,
all heating, air conditioning, plumbing, lighting, communications and elevator
fixtures) and other property of every kind and nature, whether tangible or
intangible, whatsoever owned by Trustor, or in which Trustor has or shall have
an interest, now or hereafter located upon the Premises and the Improvements, or
appurtenant thereto, and usable in connection with the present or future
operation and occupancy of the Premises and the Improvements and all building
equipment, materials and supplies of any nature whatsoever owned by Trustor, or
in which Trustor has or shall have an interest, now or hereafter located upon
the Premises and the Improvements, or appurtenant thereto, and usable in
connection with the present or future operation, enjoyment and occupancy of the
Premises and the Improvements (hereinafter collectively called the "Equipment"),
including the proceeds of any sale or transfer of the foregoing, and the right,
title and interest of Trustor in and to any of the Equipment which may be
subject to any security interests, as defined in the Uniform Commercial Code, as
adopted and enacted by the state or states where any of the Mortgaged Property
is located (the "Uniform Commercial Code") superior in lien to the lien of this
Deed of Trust;
(c) all awards or payments, including interest thereon, which may
heretofore and hereafter be made with respect to the Mortgaged Property, whether
from the exercise of the right of eminent domain or condemnation (including, but
not limited to, any transfer made in lieu of or
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in anticipation of the exercise of said rights), or for a change of grade, or
for any other injury to or decrease in the value of the Mortgaged Property;
(d) all leases, tenancies, licenses, subleases, assignments and/or
other rental or occupancy agreements (including, without limitation, any and all
guarantees of any of the foregoing) heretofore or hereafter entered into
affecting the use, enjoyment or occupancy of the Premises and the Improvements,
including any extensions, renewals, modifications or amendments thereof
(collectively, the "Leases") and all rents, rent equivalents (including room
revenues, if applicable), moneys payable as damages or in lieu of rent or rent
equivalents, royalties (including, without limitation, all oil and gas or other
mineral royalties and bonuses), income, receivables, receipts, revenues,
deposits (including, without limitation, security, utility and other deposits),
accounts, cash, issues, profits, charges for services rendered, and other
consideration of whatever form or nature received by or paid to or for the
account of or benefit of Trustor or its agents or employees from any and all
sources arising from or attributable to the Premises and the Improvements (the
"Rents"), together with all proceeds from the sale or other disposition of the
Leases and the right to receive and apply the Rents to the payment of the Debt;
(e) all proceeds of and any unearned premiums on any insurance policies
covering the Mortgaged Property, including, without limitation, the right to
receive and apply the proceeds of any insurance, judgments, or settlements made
in lieu thereof, for damage to the Mortgaged Property or any part thereof;
(f) the right, following an Event of Default (as defined in the Loan
Agreement), in the name and on behalf of Trustor, to appear in and defend any
action or proceeding brought with respect to the Mortgaged Property and to
commence any action or proceeding to protect the interest of the Beneficiary in
the Mortgaged Property or any part thereof;
(g) all accounts, escrows, reserves, documents, instruments, chattel
paper, claims, deposits and general intangibles, as the foregoing terms are
defined in the Uniform Commercial Code, and all books, records, plans,
specifications, designs, drawings, permits, consents, licenses, franchises,
management agreements, contracts, contract rights (including, without
limitation, any contract with any architect or engineer or with any other
provider of goods or services for or in connection with any construction,
repair, or other work upon the Mortgaged Property), approvals, actions, refunds
or real estate taxes and assessments (and any other governmental impositions
related to the Mortgaged Property), and causes of action that now or hereafter
relate to, are derived from or are used in connection with the Mortgaged
Property, or the use, operation, management, improvement, alteration, repair,
maintenance, occupancy or enjoyment thereof or the conduct of any business or
activities thereon;
(h) any and all proceeds and products of any of the foregoing and any
and all other security and collateral of any nature whatsoever, now or hereafter
given for the repayment of the Debt and the performance of Trustor's obligations
under the Loan Documents, including (without limitation) the Impositions and
Insurance Reserve, the Replacement Reserve, the Hazardous Materials Remediation
Reserve, the Loss Proceeds Account, the Deposit Accounts, the Central Account
and the Sub-Accounts thereof (each as defined in the Cash Management Agreement,
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dated as of the date hereof (as amended or modified the "Cash Management
Agreement"), by and between Trustor, the other Borrowers, Beneficiary, First
Union National Bank and REIT Management & Research, Inc. ("Manager")), and any
other escrows or reserves set forth in the Loan Documents;
(i) all accounts receivable, contract rights, interests, estate or
other claims, both in law and in equity, which Trustor now has or may hereafter
acquire in the Mortgaged Property or any part thereof; and
(j) all rights which Trustor now has or may hereafter acquire, to be
indemnified and/or held harmless from any liability, loss, damage, cost or
expense (including, without limitation, attorneys' fees and disbursements)
relating to the Mortgaged Property or any part thereof.
TO HAVE AND TO HOLD the above granted and described Mortgaged Property
unto and to the Trustee, for the use and benefit of Beneficiary, and its
successors and assigns forever;
PROVIDED, HOWEVER, these presents are upon the express condition that,
if Trustor shall well and truly pay to Beneficiary the Debt at the time and in
the manner provided in the Note and this Deed of Trust and shall well and truly
abide by and comply with each and every covenant and condition set forth herein
and in the Note in a timely manner, these presents and the estate hereby granted
shall cease, terminate and be void;
AND Trustor represents and warrants to and covenants and agrees with
Beneficiary as follows:
1. Payment of Debt and Incorporation of Covenants, Conditions and
Agreements. Trustor shall pay the Debt at the time and in the manner provided in
the Note, the Loan Agreement and in this Deed of Trust. Trustor will duly and
punctually perform all of the covenants, conditions and agreements contained in
the Note, the Loan Agreement, this Deed of Trust and the other Loan Documents
all of which covenants, conditions and agreements are hereby made a part of this
Deed of Trust to the same extent and with the same force as if fully set forth
herein.
2. Warranty of Title. Trustor warrants that Trustor has a good,
marketable and insurable leasehold interest in the Mortgaged Property and has
the right to give, grant, bargain, sell, alien, enfeoff, convey, confirm,
pledge, assign and hypothecate the same and that Trustor possesses a leasehold
estate in the Premises and the Improvements and that it owns the Mortgaged
Property free and clear of all liens, encumbrances and charges whatsoever except
for the Permitted Encumbrances. Trustor represents and warrants that none of the
Permitted Encumbrances will materially and adversely affect (i) Trustor's
ability to pay in full in a timely manner its obligations, including, without
limitation, the Debt, (ii) the use of the Mortgaged Property for the use
currently being made thereof, (iii) the operation of the Mortgaged Property, or
(iv) the value of the Mortgaged Property. Trustor shall forever warrant, defend
and preserve such title and the validity and priority of the lien of this Deed
of Trust and shall forever warrant and defend the same to Beneficiary against
the claims of all persons whomsoever.
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3. Insurance. (a) Trustor, at its sole cost and expense, shall maintain
or cause to be maintained insurance with respect to the Mortgaged Property for
the mutual benefit of Trustor and Beneficiary as required by Section 5.4 of the
Loan Agreement.
(b) If the Mortgaged Property shall be damaged or destroyed,
in whole or in part, by fire or other casualty (an "Insured Casualty"), Trustor
shall give immediate notice thereof to Beneficiary and to the insurance carrier.
Subject to the terms of the Loan Agreement, Trustor shall promptly repair,
replace or rebuild the Mortgaged Property in accordance with, and all amounts
paid with respect to such Insured Casualty under all insurance policies
maintained by Trustor shall be governed by, the terms and conditions of Section
5.5 of the Loan Agreement. The expenses incurred by Beneficiary in the
adjustment and collection of insurance proceeds shall become part of the Debt
and shall be secured hereby and shall be reimbursed by Trustor to Beneficiary
upon demand.
4. Payment of Impositions and Other Charges. Subject to Trustor's right
to contest set forth in Section 5.3 (B) of the Loan Agreement and the provisions
of Section 5 below, and pursuant to the provisions of the Cash Management
Agreement, Trustor shall cause to be paid all Impositions now or hereafter
levied or assessed or imposed against the Mortgaged Property or any part thereof
as the same become due and payable. Trustor shall promptly pay for all utility
services provided to the Mortgaged Property. Trustor shall furnish to
Beneficiary or its designee receipts for the payment of the Impositions prior to
the date the same shall become delinquent (provided, however, that Trustor shall
not be required to furnish such receipts for payment of Impositions in the event
that such Impositions have been paid by Beneficiary pursuant to Section 5
hereof).
5. Impositions and Insurance Reserve. Trustor shall make monthly
deposits into the Impositions and Insurance Reserve of amounts sufficient to pay
Impositions and Insurance Premiums (if and to the extent Insurance Premiums are
required to be escrowed under the Loan Agreement) in accordance with the terms
of Section 6.3 of the Loan Agreement and the Cash Management Agreement.
6. Condemnation. (a) Trustor shall promptly give Beneficiary written
notice of the actual or threatened commencement of any condemnation or eminent
domain proceeding affecting the Mortgaged Property or any portion thereof and
shall deliver to Beneficiary copies of any and all papers served in connection
with such proceedings. Subject to the terms of Section 6 (b) below, Beneficiary
is hereby irrevocably appointed as Trustor's attorney-in-fact, coupled with an
interest, with exclusive power to collect, receive and retain any award or
payment for said condemnation or eminent domain and to make any compromise or
settlement in connection with such proceeding, subject to the provisions of this
Deed of Trust. Notwithstanding any taking by any public or quasi public
authority through eminent domain or otherwise (including but not limited to any
transfer made in lieu of or in anticipation of the exercise of such taking),
Trustor shall continue to pay the Debt at the time and in the manner provided
for its payment in the Note, in this Deed of Trust and the other Loan Documents
and the Debt shall not be reduced until any award or payment therefor shall have
been actually received after expenses of collection and applied by Beneficiary
to the discharge of the Debt in accordance with the terms hereof.
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In accordance with the terms hereof, Trustor shall cause the award or payment
made in any condemnation or eminent domain proceeding, which is payable to
Trustor, to be paid directly to Beneficiary. Beneficiary may apply any such
award or payment to the reduction or discharge of the Debt whether or not then
due and payable; such application to be made without any Prepayment
Consideration (as defined in the Note), provided that such payment is made
within one hundred twenty (120) days following the date of receipt of such
condemnation award except that if an Event of Default has occurred and is
continuing, then such application shall be subject to the Prepayment
Consideration computed in accordance with the Note. If the Mortgaged Property is
sold following an Event of Default, through foreclosure or otherwise, prior to
the receipt by Beneficiary of such award or payment, Beneficiary shall have the
right, whether or not a deficiency judgment on the Note shall have been sought,
recovered or denied, to receive said award or payment, or a portion thereof
sufficient to pay the Debt.
(b) Notwithstanding the foregoing, Beneficiary shall not
exercise the foregoing rights and Trustor may prosecute any condemnation
proceeding and settle or compromise and collect any claim involving an award
and/or claim for damages of not more than the Restoration Threshold provided
that: (i) no Event of Default shall have occurred and be continuing, (ii) in
Beneficiary's sole good faith judgment, such condemnation or taking does not and
will not materially restrict access to the Mortgaged Property or otherwise have
a Material Adverse Effect, and the Mortgaged Property remaining after such
condemnation or taking is capable of being restored to an economically viable
whole of the same type which existed prior to the condemnation or taking or in
compliance with all applicable laws, (iii) Trustor applies the proceeds of such
award to any reconstruction or repair of the Mortgaged Property necessary as a
result of such condemnation or taking, (iv) Trustor promptly commences and
diligently prosecutes such reconstruction or repair to completion in accordance
with all applicable laws and (v) at Beneficiary's request, such reconstruction
or repair shall be performed under the supervision of an architect or engineer
reasonably acceptable to Beneficiary and the plans and specifications for such
work shall be subject to Beneficiary's reasonable approval. Trustor authorizes
Beneficiary to apply such awards, payments, proceeds or damages, after the
deduction of Beneficiary's reasonable expenses incurred in the collection of
such amounts, at Beneficiary's option, to restoration or repair of the Mortgaged
Property or to payment of the sums secured by this Deed of Trust, whether or not
then due, in the order determined by Beneficiary, with the balance, if any, to
Trustor. In the event that Beneficiary shall apply any such awards, payments,
proceeds or damages to the indebtedness secured hereby pursuant to the foregoing
sentence, no Prepayment Consideration or other prepayment premium or penalty
shall be due and payable under the Note in connection therewith. Subject to the
provisions of clauses (i) through (v) of this Section 6(b), Beneficiary shall
not exercise Beneficiary's option to apply such awards or damages to payment of
the sums secured by this Deed of Trust provided that each of the conditions (as
applicable) to the release of insurance proceeds for restoration or repair of
the Mortgaged Property under Section 5.5 of the Loan Agreement have been
satisfied with respect to such condemnation awards or damages. Any application
of proceeds to principal shall not extend or postpone the due date of the
monthly installments due hereunder, under the Note or under any of the Loan
Documents or change the amount of such installments. Trustor agrees to execute
such further evidence of assignment of any awards, proceeds, damages or claims
arising in connection with such condemnation or taking as Beneficiary may
reasonably require.
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7. Maintenance of Mortgaged Property. Trustor shall cause the Mortgaged
Property to be operated and maintained in a good and safe condition and repair
and in keeping with the condition and repair of properties of a similar use,
value, age, nature and construction. Trustor shall not use, maintain or operate
the Mortgaged Property in any manner which constitutes a public or private
nuisance or which makes void, voidable, or cancelable, or increases the premium
of, any insurance then in force with respect thereto. The Improvements and the
Equipment shall not be removed, or demolished and no Material Alterations shall
be made thereto (except for normal replacement or disposal of the Equipment and
except as otherwise expressly permitted in the Loan Agreement ) without the
consent of Beneficiary, which consent shall not be unreasonably withheld,
delayed or conditioned. Trustor shall promptly comply in all material respects
with all laws, orders and ordinances affecting the Mortgaged Property, or the
use thereof.
8. Use of Mortgaged Property. Trustor shall not initiate, join in,
acquiesce in, or consent to any change in any private restrictive covenant,
zoning law or other public or private restriction, limiting or defining the uses
which may be made of the Mortgaged Property or any part thereof, nor shall
Trustor initiate, join in, acquiesce in, or consent to any zoning change or
zoning matter affecting the Mortgaged Property, which in any of the foregoing
cases could reasonably be expected to result in a Material Adverse Effect. If
under applicable zoning provisions the use of all or any portion of the
Mortgaged Property is or shall become a nonconforming use, Trustor will not
cause or permit such nonconforming use to be discontinued or abandoned without
the express written consent of Beneficiary, which consent shall not be
unreasonably withheld. Trustor shall not permit or suffer to occur any waste on
or to the Mortgaged Property or to any portion thereof and shall not take any
steps whatsoever to convert the Mortgaged Property, or any portion thereof, to a
condominium or cooperative form of management. Trustor will not install or
permit to be installed on the Premises any underground storage tank or
above-ground storage tank in violation of the Environmental Laws.
9. Transfer or Encumbrance of the Mortgaged Property. (a) Trustor
acknowledges that Beneficiary has examined and relied on the creditworthiness
and experience of Trustor in owning and operating properties such as the
Mortgaged Property in agreeing to make the Loan, and that Beneficiary will
continue to rely on Trustor's ownership of the Mortgaged Property as a means of
maintaining the value of the Mortgaged Property as security for repayment of the
Debt. Except as expressly permitted under this Deed of Trust, the Loan Agreement
or under the other Loan Documents, Trustor shall not cause or suffer to occur or
exist, directly or indirectly, voluntarily or involuntarily, by operation of law
or otherwise, any sale, transfer, mortgage, pledge, lien or encumbrance (other
than Permitted Encumbrances) (collectively, "Transfers") of (i) all or any part
of the Mortgaged Property or any interest therein, or (ii) any direct or
indirect beneficial ownership interest (in whole or in part) in Trustor,
irrespective of the number of tiers of ownership, without the prior written
consent of Beneficiary.
(b) Notwithstanding the foregoing, Trustor may, without the
consent of Beneficiary, (i) make immaterial transfers of portions of the
Mortgaged Property to any federal, state or local government or any political
subdivision thereof (collectively, "Governmental Authorities") for dedication or
public use (subject to the provisions of Section 6 hereof) and (ii)
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grant easements, restrictions, covenants, reservations and rights of way in the
ordinary course of business for access, water and sewer lines, telephone,
cellular, cable, internet and telegraph lines, electric lines or other utilities
or for other similar purposes, provided that no such transfer or conveyance set
forth in the foregoing clauses (i) and (ii) shall have a Material Adverse
Effect; provided, however, that Trustor shall give Beneficiary at least ten (10)
days' prior written notice of any such transfer or conveyance describing same in
reasonable detail and certifying that such transfer or conveyance satisfies the
foregoing conditions.
(c) The occurrence of any Transfer in violation of this
Section 9 shall constitute an Event of Default hereunder, whereupon Beneficiary
at its option, without being required to demonstrate any actual impairment of
its security or any increased risk of default hereunder, may declare the Debt
immediately due and payable.
(d) Beneficiary's consent to any Transfer of the Mortgaged
Property or any interest in Trustor shall not be deemed to be a waiver of
Beneficiary's right to require such consent to any future occurrence of same.
Any attempted or purported Transfer of the Mortgaged Property or of any direct
or indirect interest in Trustor, if made in contravention of this Section 9,
shall be null and void and of no force and effect.
10. Taxes on Security; Documentary Stamps; Intangibles Tax. (a) Trustor
shall pay all taxes, charges, filing, registration and recording fees, excises
and levies payable with respect to the Note, this Deed of Trust or the liens
created or secured by the Loan Documents, other than income, franchise and doing
business taxes imposed on Beneficiary. If there shall be enacted any law (i)
deducting the Loan from the value of the Mortgaged Property for the purpose of
taxation, (ii) affecting any lien on the Mortgaged Property, or (iii) changing
existing laws of taxation of mortgages, deeds of trust, security deeds, or debts
secured by real property, or changing the manner of collecting any such taxes,
Trustor shall promptly pay to Beneficiary, on demand, all taxes, costs and
charges for which Beneficiary is or may be liable as a result thereof; however,
if such payment would be prohibited by law or would render the Loan usurious,
then instead of collecting such payment, Beneficiary may declare all amounts
owing under the Loan Documents to be immediately due and payable. No Prepayment
Consideration shall be imposed on any such payment.
(b) If at any time the United States of America, any State
thereof or any subdivision of any such State shall require revenue or other
stamps to be affixed to the Note or this Deed of Trust, or impose any other tax
or charge on the same, Trustor will pay for the same, with interest and
penalties thereon, if any. Trustor hereby agrees that, in the event that it is
determined that additional documentary stamp tax or intangible tax is due hereon
or any deed of trust or promissory note executed in connection herewith
(including, without limitation, the Note), Trustor shall indemnify and hold
harmless Beneficiary for all such documentary stamp tax and/or intangible tax,
including all penalties and interest assessed or charged in connection
therewith. Trustor shall pay same within ten (10) days after demand of payment
from Beneficiary and the payment of such sums shall be secured by this Deed of
Trust and such sums shall bear interest at the Default Rate (as defined in the
Note) from and after the eleventh (11th) day after demand until paid in full.
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(c) Trustor shall hold harmless and indemnify Beneficiary, its
successors and assigns, against any liability incurred by reason of the
imposition of any tax on the making and recording of this Deed of Trust.
11. No Credits on Account of the Debt. Trustor will not claim or demand
or be entitled to any credit or credits on account of the Debt for any part of
the Impositions assessed against the Mortgaged Property, or any part thereof,
and no deduction shall otherwise be made or claimed from the assessed value of
the Mortgaged Property, or any part thereof, for real estate tax purposes by
reason of this Deed of Trust or the Debt. In the event such claim, credit or
deduction shall be required by law, Beneficiary shall have the option, by
written notice of not less than ninety (90) days, to declare the Debt
immediately due and payable. No Prepayment Consideration shall be imposed on any
such payment.
12. Performance of Other Agreements. Trustor shall duly and punctually
observe and perform each and every material term, provision, condition, and
covenant to be observed or performed by Trustor pursuant to the terms of any
agreement or recorded instrument (including all instruments comprising the
Permitted Encumbrances) affecting or pertaining to the Mortgaged Property, and
will not suffer or permit any default or event of default (after giving effect
to any applicable notice requirements and cure periods) to exist under any of
the foregoing.
13. Further Acts; Secondary Market Transactions. (a) Trustor will, at
its sole cost and expense, and without expense to Beneficiary, do, execute,
acknowledge and deliver all and every such further acts, deeds, conveyances,
mortgages, assignments, notices of assignment, Uniform Commercial Code financing
statements or continuation statements, transfers and assurances as Beneficiary
shall, from time to time, reasonably require, for the better assuring,
conveying, assigning, transferring, and confirming unto Beneficiary the property
and rights hereby given, granted, bargained, sold, alienated, enfeoffed,
conveyed, confirmed, pledged, assigned and hypothecated or intended now or
hereafter so to be, or which Trustor may be or may hereafter become bound to
convey or assign to Beneficiary, or for carrying out the intention or
facilitating the performance of the terms of this Deed of Trust or for filing,
registering or recording this Deed of Trust. Trustor, on demand, will execute
and deliver and, upon Trustor's failure to do so within five (5) Business Days
after Beneficiary's request therefor, hereby authorizes Beneficiary to execute
in the name of Trustor or without the signature of Trustor to the extent
Beneficiary may lawfully do so, one or more financing statements, chattel
mortgages or other instruments, to evidence more effectively the security
interest of Beneficiary in the Mortgaged Property. Upon foreclosure or the
appointment of a receiver, Trustor will, at its sole cost and expense, cooperate
fully and completely to effect the assignment or transfer of any license,
permit, agreement or any other right necessary or useful to the operation of the
Mortgaged Property. Trustor grants to Beneficiary an irrevocable power of
attorney coupled with an interest for the purpose of exercising and perfecting
any and all rights and remedies available to Beneficiary at law and in equity,
including, without limitation, such rights and remedies available to Beneficiary
pursuant to this Section.
(b) Subject to the terms and conditions set forth in the Loan
Agreement, Beneficiary shall have the right to engage in one or more Secondary
Market Transactions and, in
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connection therewith, Beneficiary may transfer its obligations under this Deed
of Trust, the Note, the Loan Agreement and under the other Loan Documents (or
may transfer the portion thereof corresponding to the transferred portion of the
Obligations), and thereafter Beneficiary shall be relieved of any obligations
hereunder and under the other Loan Documents arising after the date of said
transfer with respect to the transferred interest.
14. Recording of Deed of Trust, Etc. Upon the execution and delivery of
this Deed of Trust and thereafter, from time to time, Trustor will cause this
Deed of Trust, and any security instrument creating a lien or security interest
or evidencing the lien hereof upon the Mortgaged Property and each instrument of
further assurance to be filed, registered or recorded in such manner and in such
places as may be required by any present or future law in order to publish
notice of and fully to protect the lien or security interest hereof upon, and
the interest of Beneficiary in, the Mortgaged Property. Trustor will pay all
filing, registration or recording fees, and all expenses incident to the
preparation, execution and acknowledgment of this Deed of Trust, any deed of
trust supplemental hereto, any security instrument with respect to the Mortgaged
Property and any instrument of further assurance, and all federal, state, county
and municipal, taxes, duties, imposts, assessments and charges arising out of or
in connection with the execution and delivery of this Deed of Trust, any deed of
trust supplemental hereto, any security instrument with respect to the Mortgaged
Property or any instrument of further assurance, except where prohibited by law
so to do.
15. Reporting Requirements. Trustor agrees to give prompt notice to
Beneficiary of the insolvency or bankruptcy filing of Trustor or the death,
insolvency or bankruptcy filing of any Guarantor.
16. Intentionally Deleted.
17. Remedies. Upon the occurrence and during the continuance of an
Event of Default, Beneficiary may, at Beneficiary's option, and by or through
Trustee, by Beneficiary itself, or otherwise, do any one or more of the
following:
(a) Right to Perform Trustor's Covenants. If Trustor has
failed to keep or perform any covenant whatsoever contained in this Deed of
Trust or the other Loan Documents, Beneficiary may, but shall not be obligated
to do so, perform or attempt to perform said covenant; and any payment made or
expense incurred in the performance or attempted performance of any such
covenant, together with any sum expended by Beneficiary that is chargeable to
Trustor or subject to reimbursement by Trustor under the Loan Documents, shall
be and become a part of the Debt, and Trustor promises, upon demand, to pay to
Beneficiary, at the place where the Note is payable, all sums so incurred, paid
or expended by Beneficiary, with interest from the date when paid, incurred or
expended by Beneficiary at the Default Rate (as defined in the Note).
(b) Right of Entry. Beneficiary may, prior or subsequent to
the institution of any foreclosure proceedings, enter upon the Mortgaged
Property, or any part thereof, and take exclusive possession of the Mortgaged
Property and of all books, records, and accounts relating thereto and to
exercise without interference from Trustor any and all rights which Trustor has
10
with respect to the management, possession, operation, protection, or
preservation of the Mortgaged Property, including, without limitation, the right
to rent the same for the account of Trustor and to deduct from such Rents all
costs, expenses, and liabilities of every character incurred by the Beneficiary
in collecting such Rents and in managing, operating, maintaining, protecting, or
preserving the Mortgaged Property and to apply the remainder of such Rents on
the Debt in such manner as Beneficiary may elect. All such costs, expenses, and
liabilities incurred by Beneficiary in collecting such Rents and in managing,
operating, maintaining, protecting, or preserving the Mortgaged Property, if not
paid out of Rents as hereinabove provided, shall constitute a demand obligation
owing by Trustor and shall bear interest from the date of expenditure until paid
at the Default Rate as specified in the Note, all of which shall constitute a
portion of the Debt. If Beneficiary elects to enter the Mortgaged Property as
provided for herein, Beneficiary may invoke any and all legal remedies to
dispossess Trustor, including specifically one or more actions for forcible
entry and detainer, trespass to try title, and restitution. In connection with
any action taken by the Beneficiary pursuant to this subsection, Beneficiary
shall not be liable for any loss sustained by Trustor resulting from any failure
to let the Mortgaged Property, or any part thereof, or from any other act or
omission of the Beneficiary in managing the Mortgaged Property unless such loss
is caused by the willful misconduct or gross negligence of Beneficiary, its
agents, employees or officers, nor shall Beneficiary be obligated to perform or
discharge any obligation, duty, or liability under any Lease or under or by
reason hereof or the exercise of rights or remedies hereunder. Trustor shall and
does hereby agree to indemnify, defend and hold harmless the Indemnified Parties
(as defined in Section 23 below) from and against, any and all liability, claim,
demand, loss, damage, cost or expense (including, without limitation, reasonable
attorneys' fees and disbursements) which may or might be suffered or incurred by
any Indemnified Party under any such Lease or under or by reason hereof or the
exercise of rights or remedies hereunder, or by reason of any alleged
obligations or undertakings on its part to perform or discharge any of the
terms, covenants, or agreements contained in any such Lease as and to the extent
provided under Section 23 below. Nothing in this subsection shall impose any
duty, obligation, or responsibility upon any Indemnified Party for the control,
care, management, leasing, or repair of the Mortgaged Property, nor for the
carrying out of any of the terms and conditions of any such Lease prior to the
transfer of title to the Mortgaged Property to any Indemnified Party by
foreclosure, deed-in-lieu thereof, exercise of power of sale or otherwise,
Trustor hereby assents to, ratifies, and confirms any and all actions of the
Beneficiary with respect to the Mortgaged Property taken under this subsection.
(c) Right to Accelerate. Beneficiary may, without notice or
demand, declare the entire unpaid balance of the Debt immediately due and
payable.
(d) Foreclosure-Power of Sale. Beneficiary may from time to
time institute a proceeding or proceedings, judicial, or nonjudicial, by
advertisement or otherwise, for the complete or partial foreclosure of this Deed
of Trust or the complete or partial sale of the Mortgaged Property under the
power of sale contained herein or under any applicable provision of law.
Beneficiary may sell the Mortgaged Property, and all estate, right, title,
interest, claim and demand of Trustor therein, and all rights of redemption
thereof, at one or more sales, as an entirety or in parcels, with such elements
of real and/or personal property, and at such time and place and upon such terms
as it may deem expedient, or as may be required by applicable law,
11
and in the event of a sale, by foreclosure or otherwise, of less than all of the
Mortgaged Property, this Deed of Trust shall continue as a lien and security
interest on the remaining portion of the Mortgaged Property.
(e) Rights Pertaining to Sales. Subject to the requirements of
applicable law and except as otherwise provided herein, the following provisions
shall apply to any sale or sales of all or any portion of the Mortgaged Property
under or by virtue of Subsection (d) above, whether made under the power of sale
herein granted or by virtue of judicial proceedings or of a judgment or decree
of foreclosure and sale:
(i) Trustee or Beneficiary may conduct any number of
sales from time to time. The power of sale set forth above
shall not be exhausted by any one or more such sales as to any
part of the Mortgaged Property which shall not have been sold,
nor by any sale which is not completed or is defective in
Beneficiary's opinion, until the Debt shall have been paid in
full.
(ii) Any sale may be postponed or adjourned by public
announcement at the time and place appointed for such sale or
for such postponed or adjourned sale without further notice.
(iii) After each sale, Trustee, Beneficiary or an
officer of any court empowered to do so shall execute and
deliver to the purchaser or purchasers at such sale a good and
sufficient instrument or instruments granting, conveying,
assigning and transferring all right, title and interest of
Trustor in and to the property and rights sold and shall
receive the proceeds of said sale or sales and apply the same
as specified in the Loan Agreement. Each of Trustee and
Beneficiary is hereby appointed the true and lawful
attorney-in-fact of Trustor, which appointment is irrevocable
and shall be deemed to be coupled with an interest, in
Trustor's name and stead, to make all necessary conveyances,
assignments, transfers and deliveries of the property and
rights so sold, Trustor hereby ratifying and confirming all
that said attorney or such substitute or substitutes shall
lawfully do by virtue thereof. Nevertheless, Trustor, if
requested by Beneficiary or Trustee, shall ratify and confirm
any such sale or sales by executing and delivering to
Beneficiary, Trustee or such purchaser or purchasers all such
instruments as may be advisable, in Beneficiary's or Trustee's
judgment, for the purposes as may be designated in such
request.
(iv) Any and all statements of fact or other recitals
made in any of the instruments referred to in Subsection
(e)(iii) above given by Beneficiary shall be taken as
conclusive and binding against all persons as to evidence of
the truth of the facts so stated and recited.
(v) Any such sale or sales shall operate to divest
all of the estate, right, title, interest, claim and demand
whatsoever, whether at law or in equity, of Trustor in and to
the properties and rights so sold, and shall be a perpetual
bar both at law and in equity against Trustor and any and all
persons claiming or who
12
may claim the same, or any part thereof or any interest
therein, by, through or under Trustor to the fullest extent
permitted by applicable law.
(vi) Upon any such sale or sales, Beneficiary may bid
for and acquire the Mortgaged Property and, in lieu of paying
cash therefor, may make a settlement for the purchase price by
crediting against the Debt the amount of the bid made
therefor, after deducting therefrom the expenses of the sale,
the cost of any enforcement proceeding hereunder, and any
other sums which Beneficiary or Trustee is authorized to
deduct under the terms hereof, to the extent necessary to
satisfy such bid.
(vii) Upon any such sale, it shall not be necessary
for Beneficiary or any public officer acting under execution
or order of court to have present or constructively in its
possession any of the Mortgaged Property.
(f) Beneficiary's Judicial Remedies. Beneficiary, or Trustee
upon written request of Beneficiary, may proceed by suit or suits, at law or in
equity, to enforce the payment of the Debt to foreclose the liens and security
interests of this Deed of Trust as against all or any part of the Mortgaged
Property, and to have all or any part of the Mortgaged Property sold under the
judgment or decree of a court of competent jurisdiction. This remedy shall be
cumulative of any other nonjudicial remedies available to the Beneficiary under
this Deed of Trust or the other Loan Documents. Proceeding with a request or
receiving a judgment for legal relief shall not be or be deemed to be an
election of remedies or bar any available nonjudicial remedy of the Beneficiary.
(g) Beneficiary's Right to Appointment of Receiver.
Beneficiary, as a matter of right and (i) without regard to the sufficiency of
the security for repayment of the Debt and without notice to Trustor, (ii)
without any showing of insolvency, fraud, or mismanagement on the part of
Trustor, (iii) without the necessity of filing any judicial or other proceeding
other than the proceeding for appointment of a receiver, and (iv) without regard
to the then value of the Mortgaged Property, shall be entitled to the
appointment of a receiver or receivers for the protection, possession, control,
management and operation of the Mortgaged Property, including (without
limitation), the power to collect the Rents, enforce this Deed of Trust and, in
case of a sale and deficiency, during the full statutory period of redemption
(if any), whether there be a redemption or not, as well as during any further
times when Trustor, except for the intervention of such receiver, would be
entitled to collection of such Rents. Trustor hereby irrevocably consents to the
appointment of a receiver or receivers. Any receiver appointed pursuant to the
provisions of this subsection shall have the usual powers and duties of
receivers in such matters.
(h) Beneficiary's Uniform Commercial Code Remedies. The
Beneficiary may exercise its rights of enforcement under the Uniform Commercial
Code in effect in the state in which the Mortgaged Property is located.
(i) Other Rights. Beneficiary (i) may surrender the insurance
policies maintained pursuant to the Loan Agreement or any part thereof, and upon
receipt of the proceeds shall apply the unearned Insurance Premiums as a credit
on the Debt, and, in connection
13
therewith, Trustor hereby appoints Beneficiary as agent and attorney-in-fact
(which is coupled with an interest and is therefore irrevocable) for Trustor to
collect such Insurance Premiums; (ii) may apply the Impositions and Insurance
Reserve and/or any other Reserves held pursuant to this Deed of Trust or the
other Loan Documents, and any other funds held by Beneficiary toward payment of
the Debt; and (iii) shall have and may exercise any and all other rights and
remedies which Beneficiary may have at law or in equity, or by virtue of any of
the Loan Documents, or otherwise.
(j) Discontinuance of Remedies. If Beneficiary shall have
proceeded to invoke any right, remedy, or recourse permitted under the Loan
Documents and shall thereafter elect to discontinue or abandon same for any
reason, Beneficiary shall have the unqualified right so to do and, in such
event, Trustor and Beneficiary shall be restored to their former positions with
respect to the Debt, the Loan Documents, the Mortgaged Property or otherwise,
and the rights, remedies, recourses and powers of Beneficiary shall continue as
if same had never been invoked.
(k) Remedies Cumulative. All rights, remedies, and recourses
of Beneficiary granted in the Note, this Deed of Trust and the other Loan
Documents, any other pledge of collateral, or otherwise available at law or
equity: (i) shall be cumulative; (ii) may be pursued separately, successively,
or concurrently against Trustor, the Mortgaged Property, or any one or more of
them, at such time and in such order as Beneficiary may determine in its sole
discretion; (iii) may be exercised as often as occasion therefor shall arise, it
being agreed by Trustor that the exercise or failure to exercise any of same
shall in no event be construed as a waiver or release thereof or of any other
right, remedy, or recourse; (iv) shall be nonexclusive of any other right, power
or remedy which Beneficiary may have against Trustor pursuant to this Deed of
Trust, the Loan Agreement or the other Loan Documents, or otherwise available at
law or in equity; (v) shall not be conditioned upon Beneficiary exercising or
pursuing any remedy in relation to the Mortgaged Property prior to Beneficiary
bringing suit to recover the Debt; and (vi) in the event Beneficiary elects to
bring suit on the Debt and obtains a judgment against Trustor prior to
exercising any remedies in relation to the Mortgaged Property, all liens and
security interests, including the lien of this Deed of Trust, shall remain in
full force and effect and may be exercised thereafter at Beneficiary's option.
(l) Election of Remedies. Beneficiary may release, regardless
of consideration, any part of the Mortgaged Property without, as to the
remainder, in any way impairing, affecting, subordinating, or releasing the lien
or security interests evidenced by this Deed of Trust or the other Loan
Documents or affecting the obligations of Trustor or any other party to pay the
Debt. For payment of the Debt, Beneficiary may resort to any collateral securing
the payment of the Debt in such order and manner as Beneficiary may elect. No
collateral taken by Beneficiary shall in any manner impair or affect the lien or
security interests given pursuant to the Loan Documents, and all collateral
shall be taken, considered, and held as cumulative.
(m) Bankruptcy Acknowledgment. If the Mortgaged Property or
any portion thereof or any interest therein becomes property of any bankruptcy
estate or subject to any state or federal insolvency proceeding, or in the event
of the filing of any voluntary or involuntary
14
petition under the Bankruptcy Code by or against Trustor then Beneficiary shall
immediately become entitled, in addition to all other relief to which
Beneficiary may be entitled under this Deed of Trust, to obtain (i) an order
from any bankruptcy court or other appropriate court granting immediate relief
from the automatic stay pursuant to ss. 362 of the Bankruptcy Code so as to
permit Beneficiary to pursue its rights and remedies against Trustor as provided
under this Deed of Trust and all other rights and remedies of Beneficiary at law
and in equity under applicable state law, and (ii) an order from any bankruptcy
court prohibiting Trustor's use of all "cash collateral" as defined under ss.
363 of the Bankruptcy Code. Trustor shall not assert or request any other party
to assert, that the automatic stay under ss. 362 of the Bankruptcy Code operate
or be interpreted to stay, interdict, condition, reduce or inhibit the ability
of Beneficiary to enforce any rights it has by virtue of this Deed of Trust, or
any other rights that Beneficiary has, whether now or hereafter acquired,
against any guarantor of the Debt. Trustor shall not seek a supplemental stay or
any other relief, whether injunctive or otherwise, pursuant to ss. 105 of the
Bankruptcy Code or any other provision therein to stay, interdict, condition,
reduce or inhibit the ability of Beneficiary to enforce any rights it has by
virtue of this Deed of Trust against any guarantor of the Debt. Any bankruptcy
petition or other action taken by the Trustor to stay, condition, or inhibit
Beneficiary from exercising its remedies are hereby admitted by Trustor to be in
bad faith and Trustor further admits that Beneficiary would have just cause for
relief from the automatic stay in order to take such actions authorized under
state law.
(n) Application of Proceeds. The proceeds from any sale,
lease, or other disposition made pursuant to this Deed of Trust, or the proceeds
from the surrender of any insurance policies pursuant hereto, or any Rents
collected by Beneficiary from the Mortgaged Property or the Impositions and
Insurance Reserve or other Reserves under the Cash Management Agreement or sums
received pursuant to Section 6 hereof, or proceeds from insurance which
Beneficiary elects to apply to the Debt pursuant to Section 3 hereof, shall be
applied by Beneficiary to the Debt in such order, priority and proportions as
Beneficiary in its sole discretion shall determine.
(o) Cross-Collateralization. The mortgages and deeds of trust
(other than this Deed of Trust) listed on Exhibit B attached hereto and made a
part hereof, as any of same may be amended, modified or supplemented from time
to time, are collectively referred to for purposes of this Section 17(o) as the
"Other Mortgages." This Deed of Trust, as it may be amended, modified or
supplemented from time to time, together with the Other Mortgages, are
collectively referred to for purposes of this Section 17(o) as the "Mortgages."
The Obligations are secured by, among other things, the Mortgages, which
encumber real and personal property in the States of California, Pennsylvania,
Texas and the District of Columbia, as more particularly described in each of
the Mortgages. The Obligations may be accelerated as provided in the Loan
Documents. Upon the occurrence and during the continuance of an Event of
Default, Beneficiary may, at its option, accelerate the Obligations and
foreclose upon any one or more of the Mortgages or resort to any one or more of
its other rights and remedies under any or all of the Mortgages and the other
Loan Documents. Except as otherwise provided herein, all of the real and
personal property conveyed and/or mortgaged by the Mortgages are security for
the Obligations without allocation of any one or more of the parcels or portions
thereof to any portion of the Obligations. Beneficiary may allocate the proceeds
that it receives upon the
15
exercise of its rights and remedies, including foreclosure, to payment of the
Obligations as Beneficiary in its sole discretion may determine to be advisable
pursuant to the terms of the Loan Documents. Beneficiary may proceed, at the
same or different times, to foreclose the Mortgages or any one or more of them,
by any proceedings appropriate in the state where any of the real property
encumbered by one or more of the Mortgages lies, including private sale if
permitted, and no event of enforcement taking place in any state, including
without limiting the generality of the foregoing, any pending foreclosure,
judgment or decree of foreclosure, foreclosure sale, rents received, possession
taken, deficiency judgment or decrees, or judgment taken on the Obligations,
shall in any way stay, preclude or bar enforcement of the Mortgages or any of
them in any other state, and Beneficiary may pursue any or all of its remedies
to the maximum extent permitted by applicable law pursuant to the terms of the
Loan Documents until all of the Obligations and all other obligations now or
hereafter secured by any or all of the Mortgages have been paid or discharged in
full. Additionally, and without limitation of any other provision of this Deed
of Trust, if this Deed of Trust is foreclosed and the Mortgaged Property is sold
(or any part thereof) pursuant to foreclosure or other proceedings, and if the
proceeds of such sale (after application of such proceeds as provided in this
Deed of Trust and the other Loan Documents) are not sufficient to pay the total
sum of the Obligations then outstanding and any other amounts provided for by
applicable law (the "Balance Owed"), then, to the extent permitted by law, the
Obligations shall not be satisfied to the extent of the Balance Owed, but such
Obligations shall continue in existence and continue to be evidenced and secured
by the Loan Documents and the Mortgages. Subject to the requirements of
applicable law, if Beneficiary shall acquire the Mortgaged Property as a result
of any foreclosure or other sale (whether by bidding all or any portion of the
Obligations or otherwise), the proceeds of such sale, to the extent permitted by
law, shall not be deemed to include (and Trustor shall not be entitled to any
benefit or credit on account of) proceeds of any subsequent sale of the
Mortgaged Property by Beneficiary. Without limitation of any other provision
hereof, Trustor further agrees that if any of the Other Mortgages are foreclosed
and sale is made of any of the property subject to any Other Mortgages, and if
the proceeds of such sale (after application of such proceeds as provided for
herein and after deducting all accrued and general and special taxes and
assessments) are not sufficient to pay the Obligations and any other amounts
provided for by applicable law, then, to the extent permitted by law, the
Obligations then outstanding shall not be satisfied to the extent of the Balance
Owed, but such Obligations shall continue in existence and continue to be
evidenced and secured by the Loan Documents and the Mortgages existing
immediately prior to any such foreclosure, except such Mortgages foreclosed
upon. No release of personal liability of any Person whatsoever and no release
of any portion of the property now or hereafter subject to the lien of any of
the Mortgages shall have any effect whatsoever by way of impairment or
disturbance of the lien or priority of any other of the Mortgages or the
unreleased properties encumbered by any of the Mortgages, to the extent
permitted by law. Any foreclosure or other appropriate remedy brought in any of
the states aforesaid may be brought and prosecuted as to any part of the
security, wherever located, without regard to the fact that foreclosure
proceedings or other remedies have or have not been instituted elsewhere on any
other property subject to the lien of the Mortgages. Neither Trustor nor any
Person claiming by, through or under Trustor shall have any right to marshal the
assets, all such rights being hereby expressly waived as to Trustor and all
Persons claiming by, through or under Trustor, including, without limitation,
junior lienors. Each of Trustor and all endorsers, guarantors and sureties of
the Obligations,
16
hereby waives any and all rights arising because of payment or performance by
Trustor of any Obligations (a) against any Person by way of subrogation of the
rights of Beneficiary or (b) against any Person obligated to pay or perform the
Obligations or other obligations secured by the Other Mortgages by way of
contribution, reimbursement or otherwise.
18. Security Agreement. This Deed of Trust is both a real property deed
of trust and a "security agreement" within the meaning of the Uniform Commercial
Code. The Mortgaged Property includes both real and personal property and all
other rights and interests, whether tangible or intangible in nature, of Trustor
in the Mortgaged Property. Trustor by executing and delivering this Deed of
Trust has granted and hereby grants to Beneficiary, as security for the Debt, a
security interest in the Mortgaged Property to the full extent that the
Mortgaged Property may be subject to the Uniform Commercial Code (said portion
of the Mortgaged Property so subject to the Uniform Commercial Code being called
in this Section 18 the "Collateral"). Trustor hereby agrees to execute and
deliver to Beneficiary, in form and substance reasonably satisfactory to
Beneficiary, such financing statements and such further assurances as
Beneficiary may from time to time reasonably consider necessary to create,
perfect, and preserve Beneficiary's security interest herein granted. This Deed
of Trust shall also constitute a "fixture filing" for the purposes of the
Uniform Commercial Code as to all or any part of the Mortgaged Property which
now or hereafter constitute "fixtures" under the Uniform Commercial Code.
Information concerning the security interest herein granted may be obtained from
the parties at the addresses of the parties set forth in the first paragraph of
this Deed of Trust. If an Event of Default shall occur, Beneficiary, in addition
to any other rights and remedies which it may have, shall have and may exercise
immediately and without demand, any and all rights and remedies granted to a
secured party upon default under the Uniform Commercial Code, including, without
limiting the generality of the foregoing, the right to take possession of the
Collateral or any part thereof, and to take such other measures as Beneficiary
may deem necessary for the care, protection and preservation of the Collateral.
Upon request or demand of Beneficiary, Trustor shall at its expense assemble the
Collateral and make it available to Beneficiary at a convenient place acceptable
to Beneficiary. Trustor shall pay to Beneficiary on demand any and all expenses,
including legal expenses and attorneys' fees, incurred or paid by Beneficiary in
protecting the interest in the Collateral and in enforcing the rights hereunder
with respect to the Collateral. Any notice of sale, disposition or other
intended action by Beneficiary with respect to the Collateral sent to Trustor in
accordance with the provisions hereof at least five (5) days prior to such
action, shall constitute commercially reasonable notice to Trustor. The proceeds
of any disposition of the Collateral, or any part thereof, may be applied by
Beneficiary to the payment of the Debt in such priority and proportions as
Beneficiary in its discretion shall deem proper. In the event of any change in
name, identity or structure of any Trustor, such Trustor shall notify
Beneficiary thereof and promptly after Beneficiary's request shall execute, file
and record such Uniform Commercial Code forms as are necessary to maintain the
priority of Beneficiary's lien upon and security interest in the Collateral, and
shall pay all expenses and fees in connection with the filing and recording
thereof. If Beneficiary shall require the filing or recording of additional
Uniform Commercial Code forms or continuation statements, Trustor shall,
promptly after request, execute, file and record such Uniform Commercial Code
forms or continuation statements as Beneficiary shall deem necessary, and shall
pay all expenses and fees in connection with the filing and recording thereof,
it being understood and agreed, however, that no such
17
additional documents shall increase Trustor's obligations under the Note, this
Deed of Trust and the other Loan Documents. Trustor hereby irrevocably appoints
Beneficiary as its attorney-in-fact, coupled with an interest upon Trustor's
failure to do so within five (5) Business Days after request by Beneficiary, to
file with the appropriate public office on its behalf any financing or other
statements signed only by Beneficiary, as Trustor's attorney-in-fact, in
connection with the Collateral covered by this Deed of Trust. Notwithstanding
the foregoing, Trustor shall appear and defend in any action or proceeding which
affects or purports to affect the Mortgaged Property and any interest or right
therein, whether such proceeding affects title or any other rights in the
Mortgaged Property (and in conjunction therewith, Trustor shall fully cooperate
with Beneficiary in the event Beneficiary is a party to such action or
proceeding).
19. Actions and Proceedings. Upon the occurrence and during the
continuance of an Event of Default, Beneficiary has the right to appear in and
defend any action or proceeding brought with respect to the Mortgaged Property
and to bring any action or proceeding, in the name and on behalf of Trustor,
which Beneficiary, in its discretion, decides should be brought to protect its
interest in the Mortgaged Property. Beneficiary shall, at its option, be
subrogated to the lien of any deed of trust or other security instrument
discharged in whole or in part by the Debt, and any such subrogation rights
shall constitute additional security for the payment of the Debt.
20. Waiver of Setoff and Counterclaim, Marshalling, Statute of
Limitations, Automatic or Supplemental Stay, Etc. (a) All amounts due under this
Deed of Trust, the Note and the other Loan Documents shall be payable without
setoff, counterclaim or any deduction whatsoever. Trustor hereby waives the
right to assert a setoff, counterclaim or deduction in any action or proceeding
in which Beneficiary is a participant, or arising out of or in any way connected
with this Deed of Trust, the Note, any of the other Loan Documents, or the Debt.
(b) Trustor hereby expressly, irrevocably, and unconditionally
waives and releases, to the extent permitted by law (i) the benefit of all
appraisement, valuation, stay, extension, reinstatement and redemption laws now
or hereafter in force and all rights of marshalling, sale in the inverse order
of alienation, or any other right to direct in any manner the order or sale of
any of the Mortgaged Property in the event of any sale hereunder of the
Mortgaged Property or any part thereof or any interest therein; (ii) any and all
rights of redemption from sale under any order or decree of foreclosure of this
Deed of Trust on behalf of Trustor, and on behalf of each and every person
acquiring any interest in or title to the Mortgaged Property subsequent to the
date of this Deed of Trust and on behalf of all persons to the extent permitted
by applicable law; and (iii) all benefits that might accrue to Trustor by virtue
of any present or future law exempting the Mortgaged Property from attachment,
levy or sale on execution or providing for any appraisement, valuation, stay of
execution, exemption from civil process, redemption, or extension of time for
payment. Beneficiary shall not be under any obligation to marshal any assets in
favor of any Person or against or in payment of any or all of the Obligations.
(c) To the extent permitted by applicable law, Beneficiary's
rights hereunder shall continue even to the extent that a suit for collection of
the Debt, or part thereof, is barred by
18
a statute of limitations. Trustor hereby expressly waives and releases to the
fullest extent permitted by law, the pleading of any statute of limitations as a
defense to payment of the Debt.
21. Recovery of Sums Required to Be Paid. Beneficiary shall have the
right from time to time to take action to recover any sum or sums which
constitute a part of the Debt as the same become due, without regard to whether
or not the balance of the Debt shall be due, and without prejudice to the right
of Beneficiary thereafter to bring an action of foreclosure, or any other
action, for a default or defaults by Trustor existing at the time such earlier
action was commenced.
22. Handicapped Access. (a) Trustor agrees that the Mortgaged Property
shall at all times comply in all material respects with applicable requirements
of the Americans with Disabilities Act of 1990, the Fair Housing Amendments Act
of 1988, all state and local laws and ordinances related to handicapped access
and all rules, regulations, and orders issued pursuant thereto including,
without limitation, the Americans with Disabilities Act Accessibility Guidelines
for Buildings and Facilities (collectively "Access Laws").
(b) Trustor agrees to give prompt notice to Beneficiary of the
receipt by Trustor of any complaints related to violation of any Access Laws and
of the commencement of any proceedings or investigations which relate to
compliance with applicable Access Laws but only to the extent that such
complaints, proceedings or investigations, if adversely determined, could have a
Material Adverse Effect.
23. Indemnification; Limitation of Liability. In addition to the
payment of expenses as required elsewhere herein and in the other Loan
Documents, Trustor agrees to indemnify, defend, protect, pay and hold Trustee
and Beneficiary, and each of their successors and assigns (including, without
limitation, the trustee and/or the trust under any trust agreement executed in
connection with any Securitization backed in whole or in part by the Loan and
any other person which may hereafter be the holder of the Note or any interest
therein), and the officers, directors, stockholders, partners, members,
employees, agents and Affiliates of Trustee and Beneficiary and such successors
and assigns (collectively, the "Indemnified Parties") harmless from and against
any and all liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including without limitation reasonable attorneys'
fees and expenses) (collectively, the "Indemnified Claims"), imposed upon or
incurred by or asserted against any Indemnified Party by reason of any of the
following (to the extent that insurance proceeds paid to the applicable
Indemnified Party on account of the following shall be inadequate: (i) ownership
of the Deed of Trust, the Mortgaged Property or any interest therein or receipt
of any rents; (ii) any accident, injury to or death of persons or loss of or
damage to property occurring in, on or about the Mortgaged Property or any part
thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent
parking areas, streets or ways; (iii) any use, nonuse or condition in, on or
about the Mortgaged Property or any part thereof or on the adjoining sidewalks,
curbs, adjacent property or adjacent parking areas, streets or ways; (iv)
performance of any labor or services or the furnishing of any materials or other
property in respect of the Mortgaged Property or any part thereof; (v) any
failure of the Premises or the Improvements to comply with any applicable law,
statute, code, ordinance, rule or regulation; (vi) any default by Trustor under
this Deed of Trust,
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the Loan Agreement or any other Loan Documents; (vii) any actions taken by any
Indemnified Party in the enforcement of this Deed of Trust and the other Loan
Documents in accordance with their respective terms (viii) any failure to act on
the part of any Indemnified Party hereunder; (ix) the payment or nonpayment of
any brokerage commissions to any party in connection with the transaction
contemplated hereby; and (x) the failure of Trustor to file timely with the
Internal Revenue Service an accurate Form ▇▇▇▇-▇, ▇▇▇▇▇▇▇▇▇ for Recipients of
Proceeds from Real Estate, Broker and Barter Exchange Transactions, which may be
required in connection with this Agreement, or to supply a copy thereof in a
timely fashion to the recipient of the proceeds of the transaction in connection
with which this Agreement is made. Notwithstanding the foregoing, Trustor shall
not be liable for any Indemnified Claims arising (A) from the gross negligence
or willful misconduct of any Indemnified Party or (B) under clauses (i) - (v)
above to the extent the facts, events or circumstances giving rise to such
Indemnified Claim arise after the date that any Indemnified Party takes title to
the Mortgaged Property by foreclosure, deed-in-lieu thereof, the exercise of any
power of sale or otherwise. Any amounts payable to an Indemnified Party by
reason of the application of this Section shall become immediately due and
payable and shall bear interest at the Default Rate from the date loss or damage
is sustained by such Indemnified Party until paid.
24. Notices. Any notice, demand, statement, request or consent made
hereunder shall be in writing, addressed to the intended recipient at its
address set forth in the Loan Agreement, and shall be made and deemed given in
accordance with the terms of the Loan Agreement.
25. Authority. (a) Trustor (and the undersigned representative of
Trustor, if any) has full power, authority and right to execute, deliver and
perform its obligations pursuant to this Deed of Trust, and to give, grant,
bargain, sell, alien, enfeoff, convey, confirm, warrant, pledge, hypothecate and
assign the Mortgaged Property pursuant to the terms hereof and to keep and
observe all of the terms of this Deed of Trust on Trustor's part to be
performed; and (b) Trustor represents and warrants that Trustor is not a
"foreign person" within the meaning of Section 1445(f)(3) of the Internal
Revenue Code of 1986, as amended and the related Treasury Department
regulations.
26. Waiver of Notice. Trustor shall not be entitled to any notices of
any nature whatsoever from Beneficiary except with respect to matters for which
this Deed of Trust specifically and expressly provides for the giving of notice
by Beneficiary to Trustor and except with respect to matters for which
Beneficiary is required by applicable law to give notice, and Trustor hereby
expressly waives the right to receive any notice from Beneficiary with respect
to any matter for which this Deed of Trust does not specifically and expressly
provide for the giving of notice by Beneficiary to Trustor.
27. Remedies of Trustor. In the event that a claim or adjudication is
made that Beneficiary has acted unreasonably or unreasonably delayed acting in
any case where by law or under the Note, this Deed of Trust or the other Loan
Documents, it has an obligation to act reasonably or promptly, Beneficiary shall
not be liable for any monetary damages, and Trustor's remedies shall be limited
to injunctive relief or declaratory judgment.
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28. Sole Discretion of Beneficiary. Whenever pursuant to this Deed of
Trust or the other Loan Documents, Beneficiary exercises any right given to it
to consent, approve or disapprove, or any arrangement or term is to be
satisfactory to Beneficiary, the decision of Beneficiary to consent, approve or
disapprove, or to decide that arrangements or terms are satisfactory or not
satisfactory shall be in the sole discretion of Beneficiary and shall be final
and conclusive, except as may be otherwise expressly and specifically provided
herein. Notwithstanding anything to the contrary contained herein, it shall be
understood and agreed that any such consent, approval, or disapproval may be
conditioned, among other things, upon Beneficiary obtaining confirmation by the
Rating Agencies that the action or other matter subject to Beneficiary's
consent, approval, or disapproval shall not adversely affect the rating of any
securities issued or to be issued in connection with any Secondary Market
Transaction, notwithstanding that such condition may not be expressly set forth
in the provision or provisions of the Loan Documents which require that
Beneficiary's consent be obtained.
29. Non-Waiver. The failure of Beneficiary to insist upon strict
performance of any term hereof shall not be deemed to be a waiver of any term of
this Deed of Trust. Trustor shall not be relieved of Trustor's obligations
hereunder by reason of (a) the failure of Beneficiary to comply with any request
of Trustor or Guarantor to take any action to foreclose this Deed of Trust or
otherwise enforce any of the provisions hereof or of the Note or other Loan
Documents, (b) the release, regardless of consideration, of the whole or any
part of the Mortgaged Property, or of any person liable for the Debt or any
portion thereof, or (c) any agreement or stipulation by Beneficiary extending
the time of payment or otherwise modifying or supplementing the terms of the
Note, this Deed of Trust, or the other Loan Documents. Beneficiary may resort
for the payment of the Debt to any other security held by Beneficiary in such
order and manner as Beneficiary, in its discretion, may elect. Beneficiary may
take action to recover the Debt, or any portion thereof, or to enforce any
covenant hereof without prejudice to the right of Beneficiary thereafter to
foreclosure this Deed of Trust. The rights and remedies of Beneficiary under
this Deed of Trust shall be separate, distinct and cumulative and none shall be
given effect to the exclusion of the others. No act of Beneficiary shall be
construed as an election to proceed under any one provision herein to the
exclusion of any other provision. Beneficiary shall not be limited exclusively
to the rights and remedies herein stated but shall be entitled to every right
and remedy now or hereafter afforded at law or in equity.
30. Liability. If Trustor consists of more than one person, the
obligations and liabilities of each such person hereunder shall be joint and
several. Subject to the provisions hereof requiring Beneficiary's consent to any
transfer of the Mortgaged Property, this Deed of Trust shall be binding upon and
inure to the benefit of Trustor and Beneficiary and their respective successors
and assigns forever.
31. Inapplicable Provisions. If any term, covenant or condition of this
Deed of Trust is held to be invalid, illegal or unenforceable in any respect,
this Deed of Trust shall be construed without such provision.
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32. Headings, Etc. The headings and captions of various Sections of
this Deed of Trust are for convenience of reference only and are not to be
construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
33. Counterparts. This Deed of Trust may be executed in any number of
counterparts each of which shall be deemed to be an original but all of which
when taken together shall constitute one agreement.
34. Definitions. Unless the context clearly indicates a contrary intent
or unless otherwise specifically provided herein, words used in this Deed of
Trust may be used interchangeably in singular or plural form and the word
"Trustor" shall mean "each Trustor and any subsequent owner or owners of the
Mortgaged Property or any part thereof or any interest therein," the word
"Beneficiary" shall mean "Beneficiary and any subsequent holder of the Note,"
the word "Debt" shall mean "the Note and any other evidence of indebtedness
secured by this Deed of Trust," the word "person" shall include an individual,
corporation, partnership, trust, unincorporated association, government,
governmental authority, and any other entity, and the words "Mortgaged Property"
shall include any portion of the Mortgaged Property and any interest therein and
the words "attorneys' fees" shall include any and all attorneys' fees, paralegal
and law clerk fees, including, but not limited to, fees at the pre-trial, trial
and appellate levels incurred or paid by Beneficiary in protecting its interest
in the Mortgaged Property and Collateral and enforcing its rights hereunder.
Whenever the context may require, any pronouns used herein shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns and pronouns shall include the plural and vice versa.
35. Homestead. Trustor hereby waives and renounces all homestead and
exemption rights provided by the constitution and the laws of the United States
and of any state, in and to the Premises as against the collection of the Debt,
or any part hereof.
36. Assignments. Beneficiary shall have the right to assign or transfer
its rights under this Deed of Trust and the other Loan Documents without
limitation, including, without limitation, the right to assign or transfer its
rights to a servicing agent. Any assignee or transferee shall be entitled to all
the benefits afforded Beneficiary under this Deed of Trust and the other Loan
Documents. Beneficiary agrees to provide Trustor with notice of any such
assignment, and in no event shall Trustor's monetary obligations hereunder and
under the other Loan Documents be increased as a result of such assignment
(except in accordance with Section 10.2 of the Loan Agreement); provided,
however, that Trustor's consent shall not be required in connection with any
such assignment and no delay or failure by Beneficiary to provide such notice
shall limit the effectiveness of such assignment.
37. Survival of Obligations; Survival of Warranties and
Representations. Each and all of the covenants, obligations, representations and
warranties of Trustor shall survive the execution and delivery of the Loan
Documents and the transfer or assignment of this Deed of Trust (including,
without limitation, any transfer of the Deed of Trust by Beneficiary of any of
its rights, title and interest in and to the Mortgaged Property to any party,
whether or not affiliated with Beneficiary).
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38. Covenants Running with the Land. All covenants, conditions,
warranties, representations and other obligations contained in this Deed of
Trust and the other Loan Documents are intended by Trustor and Beneficiary to
be, and shall be construed as, covenants running with the Mortgaged Property
until the lien of this Deed of Trust has been fully released by Beneficiary.
39. Governing Law; Jurisdiction. THIS DEED OF TRUST WAS NEGOTIATED IN
THE STATE OF NEW YORK AND WAS MADE BY TRUSTOR AND ACCEPTED BY BENEFICIARY IN THE
STATE OF NEW YORK, AND THE PROCEEDS OF THE NOTE WERE DISBURSED FROM THE STATE OF
NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE
PARTIES AND TO THE UNDERLYING TRANSACTION, AND IN ALL RESPECTS INCLUDING,
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE. THIS DEED OF TRUST AND THE OBLIGATIONS ARISING
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THE STATE OF NEW
YORK AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA, EXCEPT THAT AT ALL
TIMES THE PROVISIONS FOR THE CREATION, PERFECTION AND ENFORCEMENT OF THE LIENS
AND SECURITY INTERESTS CREATED PURSUANT TO THIS DEED OF TRUST SHALL BE GOVERNED
BY THE LAWS OF THE STATE WHERE THE MORTGAGED PROPERTY IS LOCATED.
40. Time of Essence. Time is of the essence as to all of the terms,
covenants and condition of this Deed of Trust and the other Loan Documents.
41. No Third-Party Beneficiaries. The provisions of this Deed of Trust
and the other Loan Documents are for the benefit of Trustor and Beneficiary and
shall not inure to the benefit of any third party (other than any successor or
assignee of Beneficiary or permitted assignee of Trustor). This Deed of Trust
and the other Loan Documents shall not be construed as creating any rights,
claims or causes of action against Beneficiary or any of its officers,
directors, agents or employees in favor of any party other than Trustor
including but not limited to any claims to any sums held in the Impositions and
Insurance Reserve or any other Reserve.
42. Relationship of Parties. The relationship of Beneficiary and
Trustor is solely that of debtor and creditor, and Beneficiary has no fiduciary
or other special relationship with the Trustor, and no term or condition of any
of the Loan Documents shall be construed to be other than that of debtor and
creditor. Trustor represents and acknowledges that neither the Loan Documents
nor any course of dealing between the parties creates any partnership or joint
venture between Trustor and Beneficiary or any other person, nor does it provide
for any shared appreciation rights or other equity participation interest.
43. Successors and Assigns. This Deed of Trust shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns, except that Trustor
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may not assign its rights or obligations hereunder except as expressly provided
in Section 9 hereof or as permitted under the Loan Agreement.
44. Investigations. Any and all representations, warranties, covenants
and agreements made in this Deed of Trust (and/or in other Loan Documents) shall
survive any investigation or inspection made by or on behalf of Beneficiary.
45. Assignment of Leases and Rents. (a) Trustor acknowledges and
confirms that it has executed and delivered to Beneficiary the Assignment of
Leases intending that such instrument create a present, absolute assignment to
Beneficiary of the Leases and Rents. Without limiting the intended benefits or
the remedies provided under the Assignment of Leases, Trustor hereby assigns to
Beneficiary, as further security for the Debt and the Obligations, the Leases
and Rents. While any Event of Default exists, Beneficiary shall be entitled to
exercise any or all of the remedies provided in the Assignment of Leases and in
Section 17 hereof, including, without limitation, the right to have a receiver
appointed. If any conflict or inconsistency exists between the Assignment of the
Leases and this Deed of Trust and the absolute assignment of the Leases and the
Rents in the Assignment of Leases, the terms of the Assignment of Leases shall
control.
(b) So long as any part of the Debt and the Obligations
secured hereby remain unpaid and undischarged, the fee and leasehold estates to
the Mortgaged Property shall not merge, but shall remain separate and distinct,
notwithstanding the union of such estates either in Trustor, Beneficiary, any
lessee or any third party by purchase or otherwise.
46. Waiver of Right to Trial by Jury. EACH OF BENEFICIARY AND TRUSTOR
HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY
JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH
RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS DEED OF TRUST OR THE
OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN
CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY
AND VOLUNTARILY BY EACH OF TRUSTOR AND BENEFICIARY, AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
JURY WOULD OTHERWISE ACCRUE. BENEFICIARY IS HEREBY AUTHORIZED TO FILE A COPY OF
THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY TRUSTOR.
47. Expenses and Attorneys' Fees. Trustor agrees to promptly pay all
reasonable fees, costs and expenses incurred by Beneficiary in connection with
any matters contemplated by or arising out of this Deed of Trust and the other
Loan Documents, including, without limitation, reasonable fees, costs and
expenses (including reasonable attorneys' fees and fees of other professionals
retained by Beneficiary) incurred in any action to enforce this Deed of Trust or
the other Loan Documents or to collect any payments due from Trustor under this
Deed of Trust, the Note or any other Loan Document or incurred in connection
with any refinancing or restructuring of the credit arrangements provided under
this Deed of Trust incurred in connection with a "workout" or in connection with
any insolvency or bankruptcy proceedings with respect to
24
Trustor, and all such fees, costs and expenses shall be part of the Obligations,
payable on demand.
48. Amendments and Waivers. Except as otherwise provided herein, no
amendment, modification, termination or waiver of any provision of this Deed of
Trust, the Note or any other Loan Document, or consent to any departure
therefrom, shall in any event be effective unless the same shall be in writing
and signed by Beneficiary and any other party to be charged. Each amendment,
modification, termination or waiver shall be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or
demand on Trustor in any case shall entitle Trustor to any other or further
notice or demand in similar or other circumstances.
49. Servicer. Beneficiary shall have the right at any time throughout
the term of the Loan to designate or appoint one or more Servicers (as defined
in the Loan Agreement) to administer this Deed of Trust and the other Loan
Documents, and to change or replace any Servicer. All of Beneficiary's rights
under this Deed of Trust and the Loan Documents may be exercised by any such
Servicer designated by Beneficiary. Any such Servicer shall be entitled to the
benefit of all obligations of Trustor in favor of Beneficiary.
50. Intentionally Deleted.
51. Trustee. Trustee may resign by the giving of notice of such
resignation in writing or verbally to Beneficiary. If Trustee shall die, resign,
or become disqualified from acting in the execution of this trust, or if, for
any reason, Beneficiary shall prefer to appoint a substitute trustee or multiple
substitute trustees, or successive substitute trustees or successive multiple
substitute trustees, to act instead of the aforenamed Trustee, Beneficiary shall
have full power to appoint a substitute trustee (or, if preferred, multiple
substitute trustees) in succession who shall succeed (and if multiple substitute
trustees are appointed, each of such multiple substitute trustees shall succeed)
to all the estates, rights, powers, and duties of the aforenamed Trustee. Such
appointment may be executed by any authorized agent of Beneficiary, and if such
Beneficiary be a corporation and such appointment be executed in its behalf by
any officer of such corporation, such appointment shall be conclusively presumed
to be executed with authority and shall be valid and sufficient without proof of
any action by the board of directors or any superior officer of the corporation.
Trustor hereby ratifies and confirms any and all acts which the aforenamed
Trustee, or his successor or successors in this trust, shall do lawfully by
virtue hereof. If multiple substitute Trustees are appointed, each of such
multiple substitute Trustees shall be empowered and authorized to act alone
without the necessity of the joinder of the other multiple substitute trustees,
whenever any action or undertaking of such substitute trustees is requested or
required under or pursuant to this Deed of Trust or applicable law. Any
substitute Trustee appointed pursuant to any of the provisions hereof shall,
without any further act, deed, or conveyance, become vested with all the
estates, properties, rights, powers, and trusts of its or his predecessor in the
rights hereunder with like effect as if originally named as Trustee herein; but
nevertheless, upon the written request of Beneficiary or of the substitute
Trustee, the Trustee ceasing to act shall execute and deliver any instrument
transferring to such substitute Trustee, upon the trusts herein expressed, all
the estates, properties, rights, powers, and trusts of the Trustee so ceasing to
25
act, and shall duly assign, transfer and deliver any of the property and moneys
held by such Trustee to the substitute Trustee so appointed in the Trustee's
place. No fees or expenses shall be payable to Trustee, except in connection
with a foreclosure of the Mortgaged Property or any part thereof or in
connection with the release of the Mortgaged Property following payment in full
of the Debt.
52. Limitation on Recourse. The obligations of Trustor hereunder are
subject to limitations on recourse as provided in Article XII of the Loan
Agreement.
53. Satisfaction of Deed of Trust. Upon payment of the Debt in full or
upon satisfaction of the conditions to release of the Mortgaged Property from
the Lien hereof pursuant to a partial defeasance in accordance with the terms of
the Note and Section 11.4 of the Loan Agreement, Beneficiary, at Trustor's sole
cost and upon Trustor's request, shall execute and deliver to Trustor a
satisfaction or reconveyance of this Deed of Trust, duly acknowledged and in
recordable form, UCC-3 financing statements terminating any UCC-1 financing
statements filed by Beneficiary relating to the Mortgaged Property, and such
other documents or instruments as may be required to release the Lien of the
Loan Documents from the Mortgaged Property.
54. Ground Lease.
(a) As used herein, the term "Ground Lease" shall mean that certain
Ground Lease dated as of December 15, 2000 between HUB Properties Trust, a
Maryland real estate investment trust, as ground lessor (the "Ground Lessor"),
and Trustor, as the ground lessee, which relates to the Premises and the
Improvements and any modifications, amendments, extensions, renewals and
restatements thereof that hereafter may be executed and approved in writing in
advance by Beneficiary.
(b) Representations and Warranties Regarding Ground Lease. Trustor
represents and warrants in favor of Beneficiary as follows:
(i) The Ground Lease contains the entire agreement of Ground
Lessor and Trustor pertaining to the Mortgaged Property. Trustor has no estate,
right, or interest in or to the Mortgaged Property except under and pursuant to
the Ground Lease. No modifications or amendments have occurred to the Ground
Lease, and no such modifications or amendments are contemplated. Ground Lessor
and Trustor have no agreements pertaining to any real property or improvements
other than the agreements set forth in the Ground Lease.
(ii) To the knowledge of Trustor, Ground Lessor is the
exclusive fee simple owner of the Mortgaged Property, subject only to the Ground
Lease and the Permitted Encumbrances, and Ground Lessor is the sole owner of the
lessor's interest in the Ground Lease.
(iii) The Ground Lease is in full force and effect. All
conditions and contingencies to the effectiveness of the Ground Lease and the
commencement of the regular term thereof (the "Ground Lease Term") have been
satisfied. The Ground Lease Term has commenced, is in effect, and is scheduled
to expire on December 31, 2090. There are no options to extend the Ground Lease
Term. There are no rights to terminate the Ground Lease other than
26
Ground Lessor's right to terminate by reason of default or condemnation, in each
case as expressly set forth in the Ground Lease. Trustor has no right to
purchase any interest in the Mortgaged Property.
(iv) No breach or default or event that with the giving of
notice or passage of time would constitute a breach or default of or under the
Ground Lease (a "Ground Lease Default") exists or has occurred (A) as to
Trustor's obligations under the Ground Lease, nor (B) to Trustor's knowledge, as
to Ground Lessor's obligations under the Ground Lease. Trustor has not received
any notice, communication, or information that a Ground Lease Default has
occurred or exists, or that Ground Lessor or any third party alleges the same to
have occurred or exist.
(v) Trustor is the exclusive owner of the lessee's interest
under and pursuant to the Ground Lease. Trustor has not assigned, transferred,
or encumbered its interest in, to, or under the Ground Lease, except in favor of
Beneficiary pursuant to this Deed of Trust and the other Loan Documents, and
also except for subleases as to which Trustor is the sublessor.
(c) Grant of After-Acquired Interest. As security for all obligations
secured by this Deed of Trust, Trustor hereby irrevocably grants, conveys,
transfers and assigns to Beneficiary, with power of sale and right of entry and
possession, all right, title, and interest in and to the Mortgaged Property that
may hereafter be acquired by Trustor. Without limitation of the foregoing, if
Trustor should acquire the fee estate in the Mortgaged Property or in any land
or improvements comprising the same, or should acquire any interest or estate in
the Mortgaged Property or any component thereof that Trustor does not presently
hold, then this Deed of Trust shall encumber and constitute a lien upon any and
all of such interest or estate, without further act or instrument by Trustor or
any third party. Trustor immediately shall notify Beneficiary of any such
acquisition. Upon request of Beneficiary and without cost or expense to
Beneficiary, Trustor will execute, acknowledge and deliver all such further
instruments and assurances as Beneficiary shall reasonably require to ratify,
confirm, or perfect Beneficiary's lien on any right, title, interest or estate
in or to the Mortgaged Property acquired at any time hereafter.
(d) Non-Merger. No merger shall occur by reason of any acquisition by
Trustor of any additional right, title, interest or estate in or to the
Mortgaged Property or any component thereof. Without limitation of the
foregoing, unless Beneficiary shall otherwise expressly consent in writing,
which consent may be withheld by Beneficiary in its sole and absolute
discretion, the leasehold estate under the Ground Lease and any other interest
or estate in the Mortgaged Property shall not merge but shall always remain
separate and distinct, notwithstanding any common ownership of the leasehold
estate and any other interest or estate.
(e) No Modification. Trustor shall not cause, join in, or suffer to
occur any actual or purported modification, amendment, surrender, or termination
of the Ground Lease, and Trustor shall have no right or power to modify, amend,
terminate, or surrender the Ground Lease, in each case without the prior written
consent of Beneficiary, which consent may be withheld by Beneficiary in its sole
and absolute discretion. Any attempted or purported modification,
27
amendment, surrender or termination of the Ground Lease without Beneficiary's
prior written consent shall be null and void and of no force or effect.
(f) Performance of Ground Lease. Trustor shall fully perform as and
when due each and all of its obligations under the Ground Lease in accordance
with the terms of the Ground Lease, and shall not cause or suffer to occur any
breach or default in any of such obligations. Trustor shall keep and maintain
the Ground Lease in full force and effect. If Trustor shall receive forbearance
from Ground Lessor or otherwise shall be excused from full and timely
performance of any of its obligations under the Ground Lease, the same shall not
postpone, excuse, diminish, or otherwise affect the obligations of Trustor under
this Section 53. Trustor shall exercise any option to renew or extend the Ground
Lease and give written confirmation thereof to Beneficiary within thirty (30)
days after such option becomes exercisable.
Notwithstanding that certain of Trustor's obligations under
this Deed of Trust may be similar or identical to certain of Trustor's
obligations under the Ground Lease, all of Trustor's obligations under this Deed
of Trust are and shall be separate from and in addition to its obligations under
the Ground Lease.
If Trustor shall have or receive notice or information that
compliance with any of Trustor's obligations under either this Deed of Trust or
the Ground Lease may constitute or give rise to a breach or default under the
other of them, then Trustor immediately shall notify Beneficiary in writing of
the same. If Beneficiary shall have or receive any such notice or information,
then Beneficiary may (but shall not be obligated to) give written instructions
to Trustor, in which case Trustor shall comply with such instructions.
(g) Notice of Default. If Trustor shall have or receive any notice or
information that any Ground Lease Default has occurred or may occur, then
Trustor immediately shall notify Beneficiary in writing of the same and
immediately shall deliver to Beneficiary a true and complete copy of each such
notice. Further, Trustor immediately shall provide such documents and
information as Beneficiary shall request concerning the Ground Lease Default.
(h) Beneficiary's Right to Cure. If any Ground Lease Default shall
occur, or if Beneficiary reasonably believes that a Ground Lease Default has
occurred or may occur, of if Ground Lessor asserts that a Ground Lease Default
has occurred (whether or not Trustor questions or denies such assertion), then
Beneficiary may (but shall not be obligated to) take any action that Beneficiary
deems necessary or desirable, including, without limitation, (i) performance or
attempted performance of any of Trustor's obligations under the Ground Lease,
(ii) curing or attempting to cure any actual or purported Ground Lease Default,
(iii) mitigating or attempting to mitigate any damages or consequences of the
same, and (iv) entry upon the Mortgaged Property for any or all of such
purposes. Upon Beneficiary's request, Trustor shall submit satisfactory evidence
of payment or performance of any of its obligations under the Ground Lease.
Beneficiary may pay and expend such sums of money as Beneficiary in its sole
discretion deems necessary or desirable for any such purpose, and Trustor shall
pay to Beneficiary immediately upon demand all such sums so paid or expended by
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Beneficiary, together with interest thereon from the date of expenditure at the
Default Rate (as defined in the Note).
(i) Intentionally Deleted.
(j) Acquisition of New Interests. If the Ground Lease shall be
rejected, canceled, or terminated, and if Beneficiary or its nominee thereafter
or in connection therewith shall acquire any right, title, interest or estate in
or to the Mortgaged Property (which may include without limitation any new lease
of the Mortgaged Property) then Trustor shall have no right, title, interest or
estate in or to such new lease, or the leasehold estate created by such new
lease, or any other interest of Beneficiary or its nominee in the Mortgaged
Property.
(k) Legal Action. Trustor shall not commence any action or proceeding
against Ground Lessor or affecting or potentially affecting the Ground Lease or
Trustor's or Beneficiary's interest therein without the prior written consent of
Beneficiary, which Beneficiary may withhold in its sole and absolute discretion.
Trustor shall notify Beneficiary immediately if any action or proceeding shall
be commenced between Ground Lessor and Trustor, or affecting or potentially
affecting the Ground Lease or Trustor's or Beneficiary's interest therein
(including, without limitation, any case commenced by or against Ground Lessor
under the Bankruptcy Code). Beneficiary shall have the option, exercisable upon
notice from Beneficiary to Trustor, to conduct and control any such action or
proceeding with counsel of Beneficiary's choice. Beneficiary may proceed in its
own name or in the name of Trustor in such action or proceeding, and Trustor
shall cooperate with Beneficiary, comply with the instructions of Beneficiary
(which may include withdrawal or exclusion of Trustor from such action or
proceeding), and execute any and all powers, authorizations, consents or other
documents reasonably required by Beneficiary in connection therewith.
(l) Estoppel Certificate. Trustor shall obtain and deliver to
Beneficiary within twenty (20) days after written request by Beneficiary, an
estoppel certificate from Ground Lessor setting forth (i) the identities of the
original lessor and lessee under the Ground Lease and each of their respective
successors, (ii) that the Ground Lease has not been modified or, if it has been
modified, the date of each modification (together with copies of each such
modification), (iii) the rent payable under the Ground Lease, (iv) the dates to
which all rent and other charges have been paid, (v) whether there are any
alleged Ground Lease Defaults and, if so, setting forth the nature thereof in
reasonable detail, and (vi) such other matters as Beneficiary may reasonably
request.
(m) No Assignment. Notwithstanding anything to the contrary contained
herein, this Deed of Trust shall not constitute an assignment of the Ground
Lease, and Beneficiary shall have no liability or obligation thereunder by
reason of its acceptance of this Deed of Trust.
(n) Bankruptcy.
(i) If Ground Lessor shall reject the Ground Lease under or
pursuant to Section 365 of Title 11 of the Bankruptcy Code, Trustor shall not
elect to treat the Ground Lease as terminated but shall elect to remain in
possession of the Mortgaged Property and the leasehold estate under the Ground
Lease. The lien of this Deed of Trust does and shall encumber and
29
attach to all of Trustor's rights and remedies at any time arising under or
pursuant to Section 365 of the Bankruptcy Code, including without limitation,
all of Trustor's rights to remain in possession of the Mortgaged Property and
the leasehold estate.
(ii) Trustor acknowledges and agrees that in any case
commenced by or against Trustor under the Bankruptcy Code, Beneficiary by reason
of the liens and rights granted under this Deed of Trust and the Loan Documents
shall have a substantial and material interest in the treatment and preservation
of Trustor's rights and obligations under the Ground Lease, and that Trustor
shall, in any such bankruptcy case, provide to Beneficiary immediate and
continuous adequate protection of such interests. Trustor and Beneficiary agree
that such adequate protection shall include but shall not necessarily be limited
to the following:
A. Beneficiary shall be deemed a party to the Ground Lease
(but shall not have any obligations thereunder) for purposes of Section 365 of
the Bankruptcy Code, and shall have standing to appear and act as a party in
interest in relation to any matter arising out of or related to the Ground Lease
or the Mortgaged Property.
B. Trustor shall serve Beneficiary with copies of all notices,
pleadings and other documents relating to or affecting the Ground Lease or the
Mortgaged Property. Any notice, pleading or document served by Trustor on any
other party in the bankruptcy case shall be contemporaneously served by Trustor
on Beneficiary, and any notice, pleading or document served upon or received by
Trustor from any other party in the bankruptcy case shall be served by Trustor
on Beneficiary immediately upon receipt by Trustor.
C. Upon written request of Beneficiary, Trustor shall assume
the Ground Lease, and shall take such steps as are necessary to preserve
Trustor's right to assume the Ground Lease, including without limitation
obtaining extensions of time to assume or reject the Ground Lease under
Subsection 365(d) of the Bankruptcy Code to the extent it is applicable.
D. If Trustor or Ground Lessor seeks to reject the Ground
Lease or have the Ground Lease deemed rejected, then prior to the hearing on
such rejection Beneficiary shall be given no less than twenty (20) days' notice
and opportunity to elect in lieu of rejection to have the Ground Lease assumed
and assigned to a nominee of Beneficiary. If Beneficiary shall so elect to
assume and assign the Ground Lease, then Trustor shall continue any request to
reject the Ground Lease until after the motion to assume and assign has been
heard. If Beneficiary shall not elect to assume and assign the Ground Lease,
then Beneficiary may obtain in connection with the rejection of the Ground Lease
a determination that Ground Lessor, at Beneficiary's option, shall (1) agree to
terminate the Ground Lease and enter into a new lease with Beneficiary on the
same terms and conditions as the Ground Lease, for the remaining term of the
Ground Lease, or (2) treat the Ground Lease as breached and provide Beneficiary
with the rights to cure defaults under the Ground Lease and to assume the rights
and benefits of the Ground Lease.
Trustor shall join with and support any request by Beneficiary
to grant and approve the foregoing as necessary for adequate protection of
Beneficiary's interests. Notwithstanding the foregoing, Beneficiary may seek
additional terms and conditions, including such economic and
30
monetary protections as it deems appropriate to adequately protect its
interests, and any request for such additional terms or conditions shall not
delay or limit Beneficiary's right to receive the specific elements of adequate
protection set forth herein.
Trustor hereby appoints Beneficiary as its attorney in fact to
act on behalf of Trustor in connection with all matters relating to or arising
out of the assumption or rejection of the Ground Lease, in which the other party
to the lease is a debtor in a case under the Bankruptcy Code. This grant of
power of attorney is present, unconditional, irrevocable, durable and coupled
with an interest.
Where reference is made to any code section or other law, the same
shall include any successor statute or provisions of law to the same or
substantially the same effect.
(o) Predecessors, Successors. Where reference herein is made to the
rights or obligations of Trustor or Ground Lessor under the Ground Lease, the
same shall include the rights and obligations of their successors and assigns.
[SIGNATURE PAGE FOLLOWS]
31
IN WITNESS WHEREOF, Herald Square LLC has caused these presents to be
signed as of the day and year first hereinabove written.
TRUSTOR:
HERALD SQUARE LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
I, ▇▇▇▇ ▇▇▇▇▇▇▇▇, a Notary Public in and for the above
jurisdiction, do hereby certify that ▇▇▇▇ ▇. ▇▇▇▇▇▇, who is personally well
known (or satisfactorily proven) to me as the President of Herald Square LLC, a
Delaware limited liability company, and who executed the foregoing and annexed
instrument bearing a date as of December 15, 2000, personally appeared before me
in said jurisdiction, and acknowledged the same to be the act and deed of Herald
Square LLC.
GIVEN under my hand and notarial seal this 13th day of
December, 2000.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Notary Public
My commission expires: June 5, 2001
EXHIBIT B
Mortgages
1. Open-End Leasehold Mortgage, Assignment of Leases and Rents, Security
Agreement and Fixture Filing dated of even date herewith, made by ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ Property Trust, a Maryland real estate investment trust
("1600 Market Street"), in favor of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Lending,
Inc.
2. Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing dated of even date herewith, made by Bridgepoint
Property Trust, a Maryland real estate investment trust
("Bridgepoint"), in favor of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Lending, Inc.
3. Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing dated of even date herewith, made by Lakewood Property
Trust, a Maryland real estate investment trust ("Lakewood"), in favor
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Lending, Inc.
4. Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing dated of even date herewith, made by Herald Square LLC,
a Delaware limited liability company ("Herald Square"), in favor of
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Lending, Inc.
5. Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing dated of even date herewith, made by Indiana Avenue LLC,
a Delaware limited liability company ("Indiana Avenue"), in favor of
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Lending, Inc.
6. Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing dated of even date herewith, made by Cedars LA LLC, a
Delaware limited liability company ("Cedars LA"), in favor of ▇▇▇▇▇▇▇
▇▇▇▇▇ Mortgage Lending, Inc.
* ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, Herald Square, Indiana
Avenue and Cedars LA shall be collectively referred to herein as the
"Borrowers".
Omitted Exhibits
The following exhibit to the Deed of Trust, Assignment of Leases and
Rents, Security Agreement and Fixture Filing has been omitted:
Exhibit Letter Exhibit Title
A Premises
The Registrant agrees to furnish supplementally a copy of the foregoing
omitted exhibit to the Securities and Exchange Commission upon request.
