Date: June 21, 2000
BUILDING LOAN DEED OF TRUST, ASSIGNMENT OF LEASES
AND RENTS AND SECURITY AGREEMENT
("this Deed")
WILLOW BEND ASSOCIATES LIMITED PARTNERSHIP,
a Delaware limited partnership
("Grantor")
Address of Grantor: c/o The Taubman Company Limited Partnership
200 East Long Lake Road, Suite 300
Bloomfield Hills, Michigan 48304
TO
DAVID M. PARNELL
("Trustee")
Address of Trustee: c/o Commonwealth Land Title Insurance Company
7557 Rambler Road, Suite 1200
Dallas, Texas 75231
FOR THE BENEFIT OF
PNC BANK, NATIONAL ASSOCIATION,
as Administrative Agent for Lenders (as hereinafter defined)
(together with its successors in such capacity, "Beneficiary")
Address of Beneficiary: One PNC Plaza
249 Fifth Avenue
P1-POPP-19-2
Pittsburgh, Pennsylvania 15222
Note Amount: $220,000,000
This instrument prepared by, and after recording please return to:
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019-6092
Attention: George C. Weiss
RECITAL
Grantor is the owner of the premises described in SCHEDULE A and
proposes to erect substantial improvements thereon. In order to finance the
construction thereof, Grantor will borrow the Note Amount from Lenders pursuant
to the Loan Agreement identified below. Grantor has executed and delivered its
notes, each dated the date hereof, in the respective amounts of $70,000,000 to
PNC BANK, NATIONAL ASSOCATION (in its individual capacity as a Lender and not as
Beneficiary, "PNC"), $70,000,000 to FLEET NATIONAL BANK ("Fleet"), $40,000,000
to COMMERZBANK AG, NEW YORK BRANCH ("Commerzbank") and $40,000,000 to BAYERISCHE
HYPO- UND VEREINSBANK AG, NEW YORK BRANCH ("Hypo Vereinsbank"). Said notes,
which are described on SCHEDULE B, obligate Grantor to pay, in the aggregate,
the Note Amount, or so much thereof as may be advanced from time to time in
accordance with the terms of the Loan Agreement. Said notes, as the same may
hereafter be amended, modified, extended, severed, assigned, renewed, replaced
or restated, and including any substitute or replacement notes executed pursuant
to Sections 3.04, 7.16, 7.20 or 9.13 of the Loan Agreement, are hereinafter
referred to individually and collectively as the "Note".
CERTAIN DEFINITIONS AND RULES OF CONSTRUCTION
Grantor, Trustee and Beneficiary agree that, unless the context
otherwise specifies or requires, the following terms shall have the meanings
herein specified.
"Chattels" means all fixtures, furnishings, fittings, appliances,
apparatus, equipment, building materials and components, machinery and articles
of personal property, of whatever kind or nature, including any replacements,
proceeds or products thereof and additions thereto, other than those owned by
lessees, now or at any time hereafter intended to be or actually affixed to,
attached to, placed upon, or used in any way in connection with the complete and
comfortable use, enjoyment, development, occupancy or operation of the Premises,
and whether located on or off the Premises.
"City" means the City of Plano, a Texas municipal corporation of Collin
County, Texas.
"Construction Consultant" has the meaning given to such term in the
Loan Agreement.
"Default Rate" and "Prime Based Default Rate" have the respective
meanings given to such terms in the Loan Agreement.
"Events of Default" means the events and circumstances described as
such in Section 2.01.
"Good Faith Contest" has the meaning given to such term in the Loan
Agreement.
"Guarantor" means The Taubman Realty Group Limited Partnership, a
Delaware limited partnership of which Grantor is a wholly-owned and controlled
subsidiary.
"Improvements" means all structures or buildings, and replacements
thereof, to be erected or now or hereafter located upon the Premises, including
all plant equipment, apparatus, machinery and fixtures of every kind and nature
whatsoever forming part of said structures or buildings.
"Lenders" means, collectively, PNC, Fleet, Hypo Vereinsbank and
Commerzbank, and such other lending institutions who become "Lenders" pursuant
to the Loan Agreement, together with their successors and permitted assigns in
accordance with the terms of the Loan Agreement.
"Loan" means the loan made by Lenders to Grantor pursuant to the Loan
Agreement and secured hereby.
"Loan Agreement" means that certain Building Loan Agreement, dated as
of the date hereof, among Grantor (as Borrower), PNC, Fleet, Hypo Vereinsbank
and Commerzbank (as Lenders) and Beneficiary (as Administrative Agent), as the
same may hereafter be amended, modified or supplemented from time to time.
"Loan Documents" means the Note, the Loan Agreement, this Deed and any
and all other documents evidencing and/or securing the Loan from time to time.
"Master Agreement" means the Master Agreement between Guarantor and the
City, dated October 25, 1999 and authorized by City Council Resolution No.
99-8-14 (R) dated August 9, 1999, providing, among other things, for certain
payments to Guarantor from tax revenues paid to the City in respect of the TIF
District, as Guarantor's interests thereunder have been assigned to and assumed
by Grantor (with the City's consent) by instruments dated November 8, 1999.
"Obligations" means each and every obligation, promise, covenant and
agreement of Grantor, Guarantor or any other obligor in respect of the Loan, now
or hereafter existing, contained in this Deed, the Loan Agreement, the Note and
any of the other Loan Documents, whether for principal, reimbursement
obligations, interest, fees, expenses, late charges, indemnities or otherwise,
and any amendments, supplements, extensions, renewals or replacements of any of
said documents, including but not limited to, all or any other obligor in
respect of the Loan indebtedness, obligations and liabilities (and all increases
or additions thereto) of Grantor, Guarantor or any other obligor in respect of
the Loan to Beneficiary or any Lender now existing or hereafter incurred under
or arising out of or in connection with this Deed, the Loan Agreement, the Note,
the other Loan Documents, and any documents or instruments executed in
connection therewith; in each case whether direct or indirect, joint or several,
absolute or contingent, liquidated or unliquidated, now or hereafter existing,
renewed or restructured, whether or not from time to time decreased or
extinguished and later increased, created or incurred, and including all
indebtedness of Grantor, Guarantor or any other obligor in respect of the Loan
under any instrument now or hereafter evidencing or securing any of the
foregoing.
"Parking Lease" means the Parking Lease between Guarantor (as Landlord)
and the City (as Tenant) dated October 25, 1999 and authorized by City Council
Resolution No. 99-
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8-15 (R) dated August 9, 1999, as the Landlord's interests thereunder have been
assigned to and assumed by Grantor (with the City's consent) by instruments
dated November 8, 1999.
"Premises" means the premises described in SCHEDULE A including all of
the easements, rights, privileges and appurtenances (including air or
development rights) thereunto belonging or in anywise appertaining, and all of
the estate, right, title, interest, claim or demand whatsoever of Grantor
therein and in the streets and ways adjacent thereto, either in law or in
equity, in possession or expectancy, now or hereafter acquired, and as used
herein shall, unless the context otherwise requires, be deemed to include the
Improvements.
"Premises Documents" means all reciprocal easement or operating
agreements (including, without limitation, the REA), declarations of covenants,
conditions or restrictions, declarations of condominium, developer's or utility
agreements with any village, town, county or other governmental authority
(including, without limitation, the Master Agreement), and any similar such
agreements or declarations now or hereafter affecting the Premises or any part
thereof.
"REA" means that certain Construction, Operation and Reciprocal
Easement Agreement more particularly described in SCHEDULE A.
"Required Lenders" has the meaning given to such term in the Loan
Agreement.
"TIF District" means Tax Increment Financing Reinvestment Zone No. One
of the City of Plano, Texas, established by City Ordinance No. 98-11-38 on
November 23, 1998, as amended by Ordinance No. 99-1-16 on January 25, 1999,
pursuant to Chapter 311 of the Texas Tax Code.
All terms of this Deed which are not defined above shall have the
meaning set forth elsewhere in this Deed.
Except as expressly indicated otherwise, when used in this Deed (i)
"or" is not exclusive, (ii) "hereunder", "herein", "hereof" and the like refer
to this Deed as a whole, (iii) "Article", "Section" and "Schedule" refer to
Articles, Sections and Schedules of this Deed, (iv) terms defined in the
singular have a correlative meaning when used in the plural and vice versa, (v)
a reference to a law or statute includes any amendment or modification to, or
replacement of, such law or statute and (vi) a reference to an agreement,
instrument or document means such agreement, instrument or document as the same
may be amended, modified or supplemented from time to time in accordance with
its terms and as permitted by the Loan Agreement and other documents executed or
delivered to Beneficiary or Lenders in connection with the Loan. The cover page
and all Schedules hereto are incorporated herein and made a part hereof. Any
table of contents and the headings and captions herein are for convenience only
and shall not affect the interpretation or construction hereof.
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GRANTING CLAUSE
NOW, THEREFORE, Grantor, in consideration of the premises and in order
to secure the payment of both the principal of, and the interest and any other
sums payable on or under, the Note, this Deed or the Loan Agreement and the
performance and observance of all the provisions hereof and of the Note and the
Loan Agreement, including the payment of any sums advanced by Trustee,
Beneficiary or Lenders to complete the "Improvements" (as such quoted term is
defined in the Loan Agreement) to the extent the aggregate of such sums and any
other sums expended pursuant hereto exceed the sum of the Note Amount, hereby
gives, grants, bargains, sells, warrants, aliens, remises, releases, conveys,
assigns, transfers, mortgages, hypothecates, deposits, pledges, sets over and
confirms unto Trustee, all its estate, right, title and interest in, to and
under any and all of the following described property (hereinafter, the
"Mortgaged Property") whether now owned or held or hereafter acquired:
(i) the Premises;
(ii) the Improvements;
(iii) the Chattels;
(iv) the Premises Documents;
(v) all rents, royalties, issues, profits, revenue, income,
recoveries, reimbursements and other benefits of the Mortgaged
Property (hereinafter, the "Rents") and all leases of the Mortgaged
Property or portions thereof now or hereafter entered into (including,
without limitation, the Parking Lease) and all right, title and
interest of Grantor thereunder, including, without limitation, cash or
securities deposited thereunder to secure performance by the lessees
of their obligations thereunder, whether such cash or securities are
to be held until the expiration of the terms of such leases or applied
to one or more of the installments of rent coming due immediately
prior to the expiration of such terms, and including any guaranties of
such leases and any lease cancellation, surrender or termination fees
in respect thereof, all subject, however, to the provisions of Section
4.01;
(vi) all deposits made with or other security given to utility
companies by Grantor with respect to the Premises and/or Improvements,
and all advance payments of insurance premiums made by Grantor with
respect thereto and all claims or demands relating to such deposits,
other security and/or such insurance;
(vii) all damages, royalties and revenue of every kind, nature
and description whatsoever that Grantor may be entitled to receive,
either before or after any default hereunder, from any person or
entity owning or having or hereafter acquiring a right to the oil, gas
or mineral rights and reservations of the Premises, with the right in
Beneficiary to receive and receipt therefor and apply the same to
amounts secured hereby, and Beneficiary may demand, sue for and
recover any such payments but shall not be required to do so;
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(viii) all proceeds and claims arising on account of any damage
to or taking of the Premises or the Improvements or any part thereof,
and all causes of action and recoveries for any loss or diminution in
the value of the Premises or the Improvements;
(ix) all development work product prepared in connection with the
Premises, including, but not limited to, engineering, drainage,
traffic, soil and other studies and tests; all water, sewer, gas,
electrical and telephone approvals, taps and connections; and all
surveys, drawings, plans and specifications and subdivision, zoning
and platting materials;
(x) all licenses (including, but not limited to, any operating
licenses or similar licenses), permits, governmental approvals,
authorities or certificates required or used in connection with the
ownership, operation or maintenance of the Improvements; all
governmental permits relating to construction, all names under or by
which the Premises or the Improvements may at any time be operated or
known, and all rights to carry on business under any such names or any
variant thereof;
(xi) all contracts and agreements (including, without limitation,
contracts with architects and engineers, construction contracts and
contracts for the maintenance, leasing or management of the Premises
or portions thereof), contract rights, logos, trademarks, trade names,
copyrights and other general intangibles used or useful in connection
with the ownership, use, operation or occupancy of the Premises or any
part thereof;
(xii) all financing commitments (debt or equity) issued to
Grantor in respect of the Premises and all amounts payable to Grantor
thereunder;
(xiii) all deposits, operating or other accounts, including the
entire balance therein (now or hereafter existing) of Grantor
containing proceeds of the ownership or operation of the Premises with
any banking or financial institution and all money, instruments,
securities, documents, chattel paper, credits, demands, and any other
property, rights, or interests of Grantor relating to the ownership or
operation of the Premises which at any time shall come into the
possession, custody or control of any banking or financial
institution; and
(xiv) all proceeds of the conversion, voluntary or involuntary,
of any of the foregoing into cash or liquidated claims, including,
without limitation, proceeds of insurance and condemnation awards, and
all rights of Grantor to refunds of real estate taxes and assessments.
TO HAVE AND TO HOLD unto Trustee, its successors and assigns forever.
IN TRUST, to secure the payment to Lenders of the principal of and
interest on the Note at the maturity thereof and all other sums due to Lenders
or Beneficiary hereunder or under the Note or the Loan Agreement and the payment
and performance of all of the other Obligations, whereupon this Deed shall cease
and be void and the Mortgaged Property shall be released at the cost of Grantor.
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Article I
COVENANTS OF GRANTOR
Grantor covenants and agrees as follows:
Section 1.01. (a) Warranty of Title; Power and Authority. Grantor
warrants that it has a good and marketable title to an indefeasible fee estate
in the Premises subject to no lien, charge or encumbrance except such as are
listed as exceptions to title in the title policy insuring the lien hereof; that
it owns the Chattels, all leases and the Rents in respect of the Mortgaged
Property and all other personal property encumbered hereby free and clear of
liens and claims (other than, in the case of Chatttels, liens and claims granted
in connection with the incurrence of "Debt" as permitted by clause (vii) of
Section 9.25 of the Loan Agreement); and that this Deed is and will remain a
valid and enforceable lien on the Mortgaged Property subject only to the
exceptions referred to above and those which may be approved by Beneficiary
after the date hereof. Grantor has full power and lawful authority to subject
the Mortgaged Property to the lien hereof in the manner and form herein done or
intended hereafter to be done. Grantor will preserve such title, and will
forever warrant and defend the same to Trustee and Beneficiary and will forever
warrant and defend the validity and priority of the lien hereof against the
claims of all persons and parties whomsoever.
(b) Flood Hazard Area. Grantor represents that neither the Premises
nor any part thereof is located in an area identified by the Secretary of the
United States Department of Housing and Urban Development or by any applicable
federal agency as having special flood hazards or, if it is, Grantor has
obtained the insurance required by Section 1.09.
Section 1.02.(a) Further Assurances. Grantor will, at its sole cost and
expense, do, execute, acknowledge and deliver all and every such further acts,
deeds, conveyances, mortgages, assignments, notices of assignment, transfers and
assurances as Trustee or Beneficiary shall from time to time reasonably require,
for the better assuring, conveying, assigning, transferring and confirming unto
Trustee the property and rights hereby conveyed or assigned or intended now or
hereafter so to be, or which Grantor may be or may hereafter become bound to
convey or assign to Trustee, or for carrying out the intention or facilitating
the performance of the terms hereof, or for filing, registering or recording
this Deed and, on demand, will execute and deliver, and hereby authorizes
Trustee or Beneficiary to execute and file in Grantor's name, to the extent they
may lawfully do so, one or more financing statements, chattel mortgages or
comparable security instruments, to evidence or perfect more effectively
Beneficiary's security interest in and the lien hereof upon the Chattels and
other personal property encumbered hereby.
(b) Information Reporting and Back-up Withholding. Grantor will, at its
sole cost and expense, do, execute, acknowledge and deliver all and every such
acts, information reports, returns and withholding of monies as shall be
necessary or appropriate to comply fully, or to cause full compliance, with all
applicable information reporting and back-up withholding requirements of the
Internal Revenue Code of 1986 (including all regulations now or hereafter
promulgated thereunder) in respect of the Premises and all transactions
6
related to the Premises, and will at all times, upon Beneficiary's request,
provide Beneficiary with satisfactory evidence of such compliance and notify
Beneficiary of the information reported in connection with such compliance.
Section 1.03. (a) Filing and Recording of Documents. Grantor forthwith
upon the execution and delivery hereof, and thereafter from time to time, will
cause this Deed, the Loan Agreement and any security instrument creating a lien
or evidencing the lien hereof upon the Chattels 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 hereof upon, and the title of Trustee to, the
Mortgaged Property.
(b) Filing and Recording Fees and Other Charges. Grantor will pay all
filing, registration or recording fees, and all expenses incident to the
execution and acknowledgment hereof, any deed of trust supplemental hereto, any
security instrument with respect to the Chattels, and any instrument of further
assurance, and any reasonable expenses (including attorneys' fees and
disbursements) incurred by Beneficiary in connection with the Loan, and will pay
all federal, state, county and municipal stamp taxes and other taxes (subject to
Section 1.08), duties, imposts, assessments and charges arising out of or in
connection with the execution and delivery of the Note, this Deed, any deed of
trust supplemental hereto, any security instrument with respect to the Chattels
or any instrument of further assurance.
Section 1.04. Payment and Performance of Loan Documents. Grantor will
punctually pay the principal and interest and all other sums to become due in
respect hereof and of the Note and the Loan Agreement at the time and place and
in the manner specified therein, according to the true intent and meaning
thereof, all in currency of the United States of America which at the time of
such payment shall be legal tender for the payment of public and private debts.
Grantor will duly and timely comply with and perform all of the terms,
provisions, covenants and agreements contained in said documents and in all
other documents or instruments executed or delivered by Grantor to Beneficiary
or Lenders in connection with the Loan.
Section 1.05. Maintenance of Existence. Grantor, if other than a
natural person, will, so long as it is owner of all or part of the Mortgaged
Property, do all things necessary to preserve and keep in full force and effect
its existence, franchises, rights and privileges as a business or stock
corporation, partnership, limited liability company, trust or other entity under
the laws of the state of its formation.
Section 1.06. After-Acquired Property. All right, title and interest of
Grantor in and to all extensions, improvements, betterments, renewals,
substitutes and replacements of, and all additions and appurtenances to, the
Mortgaged Property, hereafter acquired by, or released to, Grantor or
constructed, assembled or placed by Grantor on the Premises, and all conversions
of the security constituted thereby, immediately upon such acquisition, release,
construction, assembling, placement or conversion, as the case may be, and in
each such case, without any further deed of trust, conveyance, assignment or
other act by Grantor, shall become subject to the lien hereof as fully and
completely, and with the
7
same effect, as though now owned by Grantor and specifically described in the
Granting Clause hereof, but at any and all times Grantor will execute and
deliver to Trustee or Beneficiary any and all such further assurances, deeds of
trust, conveyances or assignments thereof as Trustee or Beneficiary may
reasonably require for the purpose of expressly and specifically subjecting the
same to the lien hereof.
Section 1.07. (a) Payment of Taxes and Other Charges. Grantor, from
time to time when the same shall become due and payable, prior to delinquency or
penalty for non-payment, will pay and discharge all taxes of every kind and
nature (including real and personal property taxes and income, franchise,
withholding, profits and gross receipts taxes), all general and special
assessments (which may, to the extent allowed by law, be paid in installments),
levies, permits, inspection and license fees, all water and sewer rents and
charges, and all other public charges whether of a like or different nature,
imposed upon or assessed against it or the Mortgaged Property or any part
thereof or upon the revenues, rents, issues, income and profits of the Mortgaged
Property or arising in respect of the occupancy, use or possession thereof.
Grantor will, upon Beneficiary's request, deliver to Beneficiary receipts
evidencing the payment of all such taxes, assessments, levies, fees, rents and
other public charges imposed upon or assessed against it or the Mortgaged
Property or any portion thereof.
Following the occurrence of an Event of Default, Beneficiary may, at
its option, to be exercised by three (3) business days' notice to Grantor,
require the deposit by Grantor, at the time of each payment of an installment of
interest or principal under the Note (but no less often than monthly), of an
additional amount sufficient to discharge the obligations under this clause (a)
relating to real estate taxes and assessments and any other charges imposed upon
or assessed against the Mortgaged Property or any part thereof when they become
due. The determination of the amount so payable and of the fractional part
thereof to be deposited with Beneficiary, so that the aggregate of such deposits
shall be sufficient for this purpose, shall be made by Beneficiary in its sole
discretion. Such amounts shall be held by Beneficiary without interest and
applied to the payment of the obligations in respect of which such amounts were
deposited or, at Beneficiary's option, to the payment of said obligations in
such order or priority as Beneficiary shall determine, on or before the
respective dates on which the same or any of them would become delinquent. If
one (1) month prior to the due date of any of the aforementioned obligations the
amounts then on deposit therefor shall be insufficient for the payment of such
obligation in full, Grantor within ten (10) days after demand shall deposit the
amount of the deficiency with Beneficiary. Nothing herein contained shall be
deemed to affect any right or remedy of Beneficiary under any provisions hereof
or of any statute or rule of law to pay any such amount and to add the amount so
paid, together with interest at the Prime Based Default Rate, to the
indebtedness hereby secured. Upon Grantor's written request, Beneficiary shall
not pay any taxes which Grantor is contesting as permitted by this Deed,
provided that, and only so long as, (i) there is not occurring any default under
this Deed or under any other Loan Document, (ii) Grantor is otherwise complying
with the requirements of Section 1.07(c) (it being understood that Beneficiary's
agreement not to pay taxes as aforesaid is further limited by the provisions of
said Section 1.07(c)) and (iii) Beneficiary determines, in its sole and absolute
discretion, that the lien of this Deed on the Mortgaged Property would not
otherwise be adversely affected thereby.
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(b) Payment of Mechanics and Materialmen. Grantor will pay, or cause to
be paid, from time to time when the same shall become due, all lawful claims and
demands of mechanics, materialmen, laborers, and others which, if unpaid, might
result in, or permit the creation of, a lien on the Mortgaged Property or any
part thereof, (or promptly bond off, or cause to be bonded off (or, in the case
of any such liens aggregating less than $500,000, insured over), any such liens)
and in general will do or cause to be done everything necessary so that the lien
hereof shall be fully preserved, at the cost of Grantor and without expense to
Trustee or Beneficiary.
(c) Good Faith Contests. Nothing in this Section 1.07 shall require the
payment or discharge of any obligation imposed upon Grantor by this Section so
long as such obligation is the subject of a Good Faith Contest by Grantor;
provided, however, that if at any time payment of any obligation imposed upon
Grantor by clause (a) above shall become necessary to prevent the delivery of a
tax deed or other instrument conveying the Mortgaged Property or any portion
thereof because of non-payment, then Grantor shall pay the same in sufficient
time to prevent the delivery of such tax deed or other instrument.
Section 1.08. Taxes on Trustee, Beneficiary or Lenders. Grantor will
pay any taxes (except income, profits, gross revenue, franchise or similar
taxes) imposed on Trustee, Beneficiary or any Lender by reason of their
interests in the Note or this Deed.
Section 1.09. Insurance.(a) Grantor will at all times (unless otherwise
indicated) provide, maintain and keep in force:
(i) policies of insurance insuring the Premises, Improvements and
Chattels against loss or damage by fire and lightning; against loss or
damage by other risks embraced by coverage of the type now known as
All Risk Replacement Cost Insurance with agreed amount endorsement,
including but not limited to riot and civil commotion, vandalism,
malicious mischief and theft; and against such other risks or hazards
as Beneficiary from time to time reasonably may designate in an amount
sufficient to prevent Beneficiary or Grantor from becoming a
co-insurer under the terms of the applicable policies, but in any
event in an amount not less than 100% of the then full replacement
cost of the Improvements (exclusive of the cost of excavations,
foundations and footings below the lowest basement floor) without
deduction for physical depreciation;
(ii) policies of insurance insuring the Premises against the loss
of "rental value" of the buildings which constitute a part of the
Improvements on a "rented or vacant basis" arising out of the perils
insured against pursuant to clause (i) above in an amount equal to not
less than one (1) year's gross "rental value" of the Improvements.
"Rental value" as used herein is defined as the sum of (A) the total
anticipated gross rental income from tenant occupancy of such
buildings as furnished and equipped, (B) the amount of all charges
which are the legal obligation of tenants and which would otherwise be
the obligation of Grantor and (C) the fair rental value of any portion
of such buildings which is occupied by Grantor. Grantor hereby assigns
the proceeds of such insurance to Beneficiary, to be applied by
Beneficiary in payment of the interest and principal on the Note,
insurance
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premiums, taxes, assessments and private impositions until such time
as the Improvements shall have been restored and placed in full
operation, at which time, provided Grantor is not then in default
hereunder, the balance of such insurance proceeds, if any, held by
Beneficiary shall be paid over to Grantor;
(iii) if all or part of the Premises are located in an area
identified by the Secretary of the United States Department of Housing
and Urban Development or by any applicable federal agency as a flood
hazard area, flood insurance in an amount at least equal to the
maximum limit of coverage available under the National Flood Insurance
Act of 1968, provided, however, that Beneficiary reserves the right to
require flood insurance in excess of said limit if such insurance is
commercially available up to the amount provided in clause (i) above;
(iv) throughout the course of construction of the "Improvements"
to be constructed pursuant to the Loan Agreement, and during any
period of restoration under this Section 1.09 or Section 1.13, a
policy or policies of builder's "all risk" insurance, written on a
Standard Builder's Risk Completed Value Form (100% non-reporting), in
an amount not less than the full insurable value of the Premises
against such risks (including, without limitation, fire and extended
coverage, collapse and earthquake coverage to agreed limits) as
Beneficiary may reasonably request, in form and substance acceptable
to Beneficiary;
(v) a policy or policies of workers' compensation insurance as
required by workers' compensation insurance laws (including employer's
liability insurance, if requested by Beneficiary) covering all
employees of Grantor;
(vi) comprehensive liability insurance on an "occurrence" basis
against claims for "personal injury" liability, including, without
limitation, bodily injury, death or property damage liability, with a
limit of not less than $15,000,000 in the event of "personal injury"
to any number of persons or of damage to property arising out of one
"occurrence". Such policies shall name Beneficiary as additional
insured by an endorsement, and shall contain cross-liability and
severability of interest clauses, all satisfactory to Beneficiary; and
(vii) such other insurance (including, but not limited to,
earthquake insurance), and in such amounts, as may from time to time
be reasonably required by Beneficiary against the same or other
insurable hazards which at the time are commonly insured against in
the case of premises similarly situated, due regard being given to the
height and type of buildings thereon and their construction, use and
occupancy.
(b) All policies of insurance required under this Section 1.09 shall be
issued by companies having an A.M. Best rating of A-VII or better and be
otherwise acceptable to Beneficiary, shall be subject to the reasonable approval
of Beneficiary as to amount, content, form and expiration date and, except for
the liability policies described in clauses (a)(v) and (vi) above, shall contain
a Non-Contributory Standard Mortgagee Clause and Lender's Loss Payable
Endorsement, or their equivalents, in favor of Beneficiary, and shall
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provide that the proceeds thereof shall be payable to Beneficiary. Beneficiary
shall be furnished with the original of each policy required hereunder (or a
certificate of such insurance and, if required by Beneficiary, a copy of each
such policy), which policies shall provide that they shall not lapse, nor be
modified or cancelled, without thirty (30) days' written notice to Beneficiary.
At least ten (10) days prior to expiration of any policy required hereunder,
Grantor shall furnish Beneficiary appropriate proof of issuance of a policy
continuing in force the insurance covered by the policy so expiring. Grantor
shall furnish to Beneficiary, promptly upon request, receipts or other
satisfactory evidence of the payment of the premiums on such insurance policies.
In the event that Grantor does not deposit with Beneficiary a new certificate or
policy of insurance with evidence of payment of premiums thereon at least ten
(10) days prior to the expiration of any expiring policy, then Beneficiary may,
but shall not be obligated to, procure such insurance and pay the premiums
therefor, and Grantor agrees to repay to Beneficiary the premiums thereon
promptly on demand, together with interest thereon at the Prime Based Default
Rate.
(c) Grantor hereby assigns to Beneficiary all proceeds of any insurance
required to be maintained by this Section 1.09 which Grantor may be entitled to
receive for loss or damage to the Premises, Improvements or Chattels. All such
insurance proceeds shall be payable to Beneficiary, and Grantor hereby
authorizes and directs any affected insurance company to make payment thereof
directly to Beneficiary. Grantor shall give prompt notice to Beneficiary of any
casualty in the amount of $100,000 or more, whether or not of a kind required to
be insured against under the policies to be provided by Grantor hereunder, such
notice to generally describe the nature and cause of such casualty and the
extent of the damage or destruction. Grantor may settle, adjust or compromise
any claims for loss, damage or destruction, regardless of whether or not there
are insurance proceeds available or whether any such insurance proceeds are
sufficient in amount to fully compensate for such loss or damage, subject, in
the case of claims in the amount of $2,000,000 or more, to Beneficiary's prior
consent, such consent not to be unreasonably withheld or delayed.
Notwithstanding the foregoing, Beneficiary shall have the right to join Grantor
in settling, adjusting or compromising any loss of $2,000,000 or more. Grantor
hereby authorizes the application or release by Beneficiary of any insurance
proceeds under any policy of insurance, subject to the other provisions hereof.
The application or release by Beneficiary of any insurance proceeds shall not
cure or waive any default or notice of default hereunder or invalidate any act
done pursuant to such notice.
(d) In the event of the foreclosure hereof or other transfer of the
title to the Mortgaged Property in extinguishment, in whole or in part, of the
indebtedness secured hereby, all right, title and interest of Grantor in and to
any insurance policy, or premiums or payments in satisfaction of claims or any
other rights thereunder then in force, shall pass to the purchaser or grantee
notwithstanding the amount of any bid at such foreclosure sale. Nothing
contained herein shall prevent the accrual of interest as provided in the Note
on any portion of the principal balance due under the Note until such time as
insurance proceeds are actually received and applied to reduce the principal
balance outstanding.
(e) Grantor shall not take out separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained under this
Section 1.09 unless Beneficiary is included thereon as a named insured with loss
payable to Beneficiary
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under standard mortgage endorsements of the character and to the extent above
described. Grantor shall promptly notify Beneficiary whenever any such separate
insurance is taken out and shall promptly deliver to Beneficiary the policy or
policies of such insurance.
(f) Any and all monies received as payment which Grantor may be
entitled to receive for loss or damage to the Premises, Improvements or Chattels
under any insurance maintained pursuant to this Section 1.09 (other than
proceeds under the policies required by clause (a)(ii) above) shall be paid over
to Beneficiary and, provided no Event of Default shall exist and subject to the
conditions set forth below, said monies (less Beneficiary's reasonable expenses
for collecting and disbursing the insurance proceeds, or otherwise incurred in
connection therewith) shall be applied by Beneficiary to the payment of, or the
reimbursement of Grantor for, the costs and expenses incurred by Grantor in the
restoration of the Improvements on the Premises. Advances of insurance proceeds
shall be made to Grantor in the same manner and subject to the same terms and
conditions as advances of proceeds of the Loan under the Loan Agreement.
Notwithstanding the foregoing, in any case where the extent of the damage or
destruction is such that the insurance proceeds paid in respect thereof are
$2,000,000 or less, and provided no default shall exist hereunder or under the
Loan Agreement, so long as Grantor shall promptly undertake, and thereafter
diligently prosecute to completion, such restoration, such proceeds shall be
paid directly to Grantor, to be applied by Grantor for expenses incurred in
connection with such restoration. Insurance proceeds not needed for restoration,
or not in fact so applied, shall, at the option of the Required Lenders, be
applied either to the prepayment of the Note and interest accrued and unpaid
thereon in such order and proportions as the Required Lenders shall elect, or
shall be paid over to Grantor. It is understood that any insurance proceeds
(less Beneficiary's reasonable expenses in connection therewith as set forth
above) received by Beneficiary and not disbursed to Grantor due to the existence
of a default hereunder or under the Loan Agreement, and any such insurance
proceeds, or portions thereof, being held by Beneficiary for periodic
disbursement during the course of restoration as set forth above, shall be held
in an interest-bearing account and not applied to the repayment of the Loan
unless and until an Event of Default shall occur hereunder, provided, however,
that upon such an Event of Default any such proceeds then held by Beneficiary,
and any interest earned thereon, shall, at the option of the Required Lenders,
be applied by Beneficiary to the outstanding principal of and accrued and unpaid
interest on the Note in such order and proportions as the Required Lenders shall
elect. It shall be a condition to any restoration that Beneficiary and the
Construction Consultant shall have determined, in their reasonable judgment,
that the amount of available insurance proceeds is sufficient to restore the
Premises and Improvements, to the same condition, character and at least equal
value and general utility as nearly as possible to that existing immediately
prior to the damage or destruction, no later than (x) in cases where the damage
and available insurance proceeds are in the amount of $10,000,000 or more, six
(6) months prior to the Maturity Date of the Loan or (y) in cases where the
damage and available insurance proceeds are in the amount of less than
$10,000,000, the Maturity Date of the Loan. In the event such insurance proceeds
are inadequate for such restoration, Grantor shall deposit with Beneficiary an
amount (the "Casualty Excess Amount") equal to the excess of the estimated cost
of restoration, as determined by Beneficiary after consultation with the
Construction Consultant, over the amount of such insurance proceeds.
Notwithstanding the foregoing, Beneficiary shall accept, in lieu of such
deposit, an unconditional, irrevocable letter of
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credit in the Casualty Excess Amount issued to Beneficiary by a financial
institution, and otherwise in form and substance, acceptable to Beneficiary in
all respects. If Grantor shall not have deposited the Casualty Excess Amount
with Beneficiary or if Beneficiary shall not have received such letter of
credit, as the case may be, within thirty (30) days following Beneficiary's
receipt of the insurance proceeds, or if restoration work shall not have been
commenced and the other conditions therefor satisfied by Grantor within sixty
(60) days following Beneficiary's receipt of the insurance proceeds and,
thereafter, not diligently pursued in accordance with this Section and all legal
requirements, Beneficiary may apply such insurance proceeds to the prepayment of
the Note and interest accrued and unpaid thereon and in the Loan Agreement in
such order and proportions as the Required Lenders shall elect. If, following
restoration in accordance with this Section 1.09(f) there are any excess
insurance proceeds, such excess insurance proceeds shall, provided there exists
no default hereunder or under the Loan Agreement, be paid over to Grantor.
Section 1.10. Protective Advances by Beneficiary. If Grantor shall
fail to perform any of the covenants contained herein, Trustee or Beneficiary
may, upon five (5) business days' prior notice (unless, in the good faith
judgment of Beneficiary, such performance must take place sooner due to an
emergency or the imminent loss of, or impairment to, any of the security
otherwise afforded to Beneficiary by this Deed, including, without limitation,
by virtue of the imminent sale or forfeiture of the Mortgaged Property or any
part thereof, in which events no prior notice shall be required) make advances
to perform the same on its behalf and all sums so advanced shall be a lien upon
the Mortgaged Property and shall be secured hereby. Grantor will repay on demand
all sums so advanced on its behalf together with interest thereon at the Prime
Based Default Rate. The provisions of this Section shall not prevent any default
in the observance of any covenant contained herein from constituting an Event of
Default.
Section 1.11. Estoppel Certificates. Grantor, within three (3)days upon
request in person or within five (5) days upon request by mail, will furnish a
statement, duly acknowledged, of the amount due whether for principal or
interest on this Deed and whether, to the best of its knowledge, any offsets,
counterclaims or defenses exist against the indebtedness secured hereby.
Section 1.12. Maintenance of Premises and Improvements. Grantor will
not commit any physical waste on the Premises or make any change in the use of
the Premises which will in any way increase any ordinary fire or other hazard
arising out of construction or operation. Grantor will, at all times, maintain,
or cause to be maintained, the Improvements and Chattels in good operating order
and condition and will promptly make, or cause to be made, from time to time,
all repairs, renewals, replacements, additions and improvements in connection
therewith which are needful or desirable to such end. The Improvements shall not
be demolished or substantially altered, nor shall any Chattels be removed
without Beneficiary's prior consent except where appropriate replacements free
of superior title, liens and claims (except for liens and claims granted in
connection with the incurrence of "Debt" as permitted by clause (vii) of Section
9.25 of the Loan Agreement) are promptly made of value at least equal to the
value of the removed Chattels.
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Section 1.13. Condemnation. Grantor, promptly upon obtaining knowledge
of the institution or pending institution of any proceedings for the
condemnation of the Premises or any portion thereof, will notify Beneficiary
thereof. Beneficiary may participate in any such proceedings and may be
represented therein by counsel of Beneficiary's selection. Grantor from time to
time will deliver to Beneficiary all instruments requested by it to permit or
facilitate such participation. In the event of such condemnation proceedings,
the award or compensation payable is hereby assigned to and shall be paid to
Beneficiary. Beneficiary shall be under no obligation to question the amount of
any such award or compensation and may accept the same in the amount in which
the same shall be paid. The proceeds of any award or compensation so received
shall, at the option of the Required Lenders, either be applied to the
prepayment of the Note and all interest and other sums accrued and unpaid in
respect thereof at the rate of interest provided therein and in the Loan
Agreement regardless of the rate of interest payable on the award by the
condemning authority, or be disbursed to Grantor from time to time for
restoration of the Improvements. Notwithstanding the provisions of the
immediately preceding sentence, provided no default shall exist hereunder or
under the Loan Agreement and subject to the conditions set forth below, any such
condemnation award proceeds received by Beneficiary (less Beneficiary's
reasonable expenses for collecting and disbursing the same, or otherwise
incurred in connection therewith) shall be applied by Beneficiary to the payment
of, or the reimbursement of Grantor for, the costs and expenses incurred by
Grantor in the restoration of the Improvements on the Premises. Advances of
condemnation award proceeds shall be made to Grantor in the same manner and
subject to the same terms and conditions as advances of proceeds of the Loan
under the Loan Agreement. Notwithstanding the foregoing, in any case where the
extent of the condemnation award proceeds paid in respect thereof are $2,000,000
or less, and provided no default shall exist hereunder or under the Loan
Agreement, so long as Grantor shall promptly undertake, and thereafter
diligently prosecute to completion, such restoration, such proceeds shall be
paid directly to Grantor, to be applied by Grantor for expenses incurred in
connection with such restoration. Condemnation award proceeds not required for
restoration, or not in fact so applied, shall, at the option of the Required
Lenders, be applied either to the prepayment of the Note and interest accrued
and unpaid thereon (at the rate of interest provided therein and in the Loan
Agreement regardless of the rate of interest payable on the award by the
condemning authority) in such order and proportions as the Required Lenders
shall elect, or shall be paid over to Grantor. It is understood that any
condemnation award proceeds (less Beneficiary's reasonable expenses in
connection therewith as set forth above) received by Beneficiary and not
disbursed to Grantor due to the existence of a default hereunder or under the
Loan Agreement, and any such condemnation award proceeds, or portions thereof,
being held by Beneficiary for periodic disbursement during the course of
restoration as set forth above, shall be held by Beneficiary in an
interest-bearing account and not applied to the repayment of the Loan unless and
until an Event of Default shall occur hereunder, provided, however, that upon
such an Event of Default any such proceeds then held by Beneficiary, and any
interest earned thereon, shall, at the option of the Required Lenders, be
applied by Beneficiary to the outstanding principal of and accrued and unpaid
interest on the Note in such order and proportions as the Required Lenders shall
elect. It shall be a condition to any restoration that Beneficiary and the
Construction Consultant shall have determined, in their reasonable
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judgment, that the amount of available condemnation award proceeds is sufficient
to restore the Premises and Improvements, to the same condition, character and
at least equal value and general utility as nearly as possible to that existing
immediately prior to the condemnation, no later than (x) in cases where the
taking and available condemnation award proceeds are in the amount of
$10,000,000 or more, six (6) months prior to the Maturity Date of the Loan or
(y) in cases where the taking and available condemnation award proceeds are in
the amount of less than $10,000,000, the Maturity Date of the Loan. In the event
such condemnation award proceeds are inadequate for such restoration, Grantor
shall deposit with Beneficiary an amount (the "Condemnation Excess Amount")
equal to the excess of the estimated cost of restoration, as determined by
Beneficiary, over the amount of such condemnation award proceeds.
Notwithstanding the foregoing, Beneficiary shall accept, in lieu of such
deposit, an unconditional, irrevocable letter of credit in the Condemnation
Excess Amount issued to Beneficiary by a financial institution, and otherwise in
form and substance, acceptable to Beneficiary in all respects. If Grantor shall
not have deposited the Condemnation Excess Amount with Beneficiary or if
Beneficiary shall not have received such letter of credit, as the case may be,
within thirty (30) days following Beneficiary's receipt of the condemnation
award proceeds, or if restoration work shall not have been commenced and the
other conditions therefor satisfied by Grantor within sixty (60) days following
Beneficiary's receipt of the condemnation award proceeds and, thereafter, not
diligently pursued in accordance with this Section and all legal requirements,
Beneficiary may apply such condemnation award proceeds to the prepayment of the
Note and interest accrued and unpaid thereon (at the rate of interest provided
therein and in the Loan Agreement regardless of the rate of interest payable on
the award by the condemning authority) in such order and proportions as the
Required Lenders shall elect. If, following restoration in accordance with this
Section 1.13, there are any excess condemnation award proceeds, such excess
proceeds shall, provided there exists no default hereunder or under the Loan
Agreement, be paid over to Grantor.
Section 1.14. Leases. (a) Grantor will not (i) execute an assignment of
the rents or any part thereof from the Premises without Beneficiary's prior
consent, (ii) modify, terminate or consent to the cancellation or surrender of
any lease of the Premises or of any part thereof, now existing or hereafter to
be made, in a manner which is not commercially reasonable, (iii) accept
prepayments of any installments of rents in excess of one (1) month's rent to
become due under such leases, except prepayments in the nature of security for
the performance of the lessees thereunder and lease cancellation or buy-out
fees, (iv) modify, release or terminate any guaranties of any such lease in a
manner which is not commercially reasonable or (v) in any other manner impair
the value of the Mortgaged Property or the security hereof. In addition, Grantor
will comply with the covenant regarding leases set forth in Section 6.20 of the
Loan Agreement.
(b) Grantor will not execute any lease of all or a substantial portion
of the Premises except for actual occupancy by the lessee thereunder, and will
at all times promptly and faithfully perform, or cause to be performed, in a
commercially reasonable manner, all of the covenants, conditions and agreements
contained in all leases of the Premises or portions thereof now or hereafter
existing, on the part of the lessor thereunder to be kept and performed and will
at all times use commercially reasonable efforts to compel performance by the
lessee under each lease of all obligations, covenants and
15
agreements by such lessee to be performed thereunder. If any of such leases
provide for the giving by the lessee of certificates with respect to the status
of such leases, Grantor shall exercise its right to request such certificates
within five (5) days of any demand therefor by Beneficiary and shall deliver
copies thereof to Beneficiary promptly upon receipt.
(c) Each lease of the Premises, or of any part thereof, executed after
the date hereof (or out for execution as of the date hereof) shall provide that,
in the event of the enforcement by Trustee or Beneficiary of the remedies
provided for hereby or by law, the lessee thereunder will, upon request of any
person succeeding to the interest of Grantor as a result of such enforcement,
automatically become the lessee of said successor in interest, without change in
the terms or other provisions of such lease, provided, however, that said
successor in interest shall not be bound by any payment of rent or additional
rent for more than one (1) month in advance, except prepayments in the nature of
security for the performance by said lessee of its obligations under said lease.
Each lease shall also provide that, upon request by said successor in interest,
such lessee shall execute and deliver an instrument or instruments confirming
such attornment.
(d) Grantor shall, promptly upon Beneficiary's request following an
Event of Default, deposit all tenant security deposits in respect of the
Premises into an account with Beneficiary or as designated by Beneficiary, which
deposits shall be held and disbursed to tenants as required under the terms of
their respective leases.
Section 1.15. Premises Documents. Grantor shall (a) promptly and
faithfully perform, or cause to be performed, in a commercially reasonable
manner, all of the material covenants and agreements contained in all Premises
Documents now or hereafter existing on its part to be kept and performed
thereunder, (b) use commercially reasonable efforts to cause the due compliance
and faithful performance by the other parties to the Premises Documents with and
of all material obligations and agreements by such other parties to be complied
with and performed thereunder and (c) deliver promptly to Beneficiary copies of
any notices which it gives or receives under any of the Premises Documents.
Section 1.16. Trust Fund; Lien Laws. Grantor will receive the advances
secured hereby and will hold the right to receive such advances as a trust fund
to be applied first for the purpose of paying the costs of completing the
"Improvements" defined in the Loan Agreement and will apply the same first to
the payment of such costs before using any part of the total of the same for any
other purpose. Grantor will indemnify and hold Trustee, Beneficiary and Lenders
harmless against any loss or liability, cost or expense, including, without
limitation, any judgments, attorney's fees, costs of appeal bonds and printing
costs, arising out of or relating to any proceeding instituted by any claimant
alleging a violation by Grantor of any applicable lien law.
Section 1.17. Reliance on Premises to Fulfill Governmental
Requirements. The Mortgaged Property includes all right, title and interest in
any property necessary to meet any governmental requirements for the
construction and operation of the Improvements. Grantor shall not by act or
omission permit any building or other improvement located on any property not
subject to the lien of this Deed to rely on the
16
Premises, or any part thereof or interest therein, to fulfill any governmental
requirement, and Grantor hereby assigns to Beneficiary any and all rights to
consent to all or any portion of or interest in the Premises to be so used. Any
act or omission of Grantor which would result in a violation of this Section
shall be void.
Section 1.18. Non-Disturbance and Attornment Agreements. Subject to the
conditions specified in the next paragraph of this Section, Beneficiary will,
upon Grantor's request, execute non-disturbance, attornment and subordination
agreements, in Beneficiary's then standard form (with modifications reasonably
satisfactory to Beneficiary), with lessees of space in the Improvements which
shall provide, inter alia, that in the event Beneficiary or any purchaser at
foreclosure shall succeed to Grantor's interest in the Premises, the leases of
such lessees will remain in full force and effect and be binding upon
Beneficiary or such purchaser and such lessee as though each were the original
parties thereto.
Beneficiary's obligation to execute such agreements shall be subject to
the following conditions: (i) the credit of the lessee and the terms of the
lease shall be satisfactory to Beneficiary in its reasonable judgment, (ii)
Beneficiary shall have received and approved the standard form of lease to be
used in connection with the leasing of the Improvements, (iii) upon each request
for such an agreement, Beneficiary shall receive a photocopy of the executed
lease, certified to be true and complete by the responsible officer of Grantor
or by its counsel and (iv) Beneficiary shall receive a letter, in the form
specified in the Loan Agreement, signed by Grantor and addressed to the lessee,
to be forwarded to the lessee by Beneficiary, giving notice of the assignment of
each lease provided for herein.
Section 1.19. Expenses of Trustee. Grantor shall pay all reasonable and
customary costs, fees and expenses of Trustee, its agents and counsel in
connection with the performance of its duties hereunder.
Article II
EVENTS OF DEFAULT AND REMEDIES
Section 2.01. Events of Default and Certain Remedies. If one or more of
the following Events of Default shall happen, that is to say:
(a) if an "Event of Default" shall occur under the Loan Agreement
(as such quoted term is defined therein); or
(b) if default shall be made in the payment of any tax or other
charge required by Section 1.07 to be paid and said default shall have
continued for a period of twenty (20) days; or
(c) if it shall be illegal for Grantor or Guarantor to pay any
tax referred to in Section 1.08 or if the payment of such tax by
Grantor or Guarantor would result in the violation of applicable usury
laws; or
17
(d) if there shall occur a default which is not cured within the
applicable grace period, if any, under any mortgage, deed of trust or
other security instrument covering all or part of the Mortgaged
Property regardless of whether any such mortgage, deed of trust or
other security instrument is prior or subordinate hereto; it being
further agreed by Grantor that an Event of Default hereunder shall
constitute an Event of Default under any such mortgage, deed of trust
or other security instrument held by or for the benefit of
Beneficiary; or
(e) if there shall occur a default by Grantor which is not cured
within the applicable grace period, if any, under the REA, the Master
Agreement, the Parking Lease or under any other Premises Document
which Beneficiary has notified Grantor that Beneficiary considers
material; or if the REA, the Master Agreement, the Parking Lease or
any other Premises Document which Beneficiary has notified Grantor
that Beneficiary considers material is amended, modified, supplemented
or terminated (other than as may be permitted by the Loan Agreement)
without Beneficiary's prior consent, such consent not to be
unreasonably withheld or delayed; or
(f) except as and to the extent permitted by Section 9.26 of the
Loan Agreement, if Grantor shall transfer, or agree to transfer (or
suffer or permit the transfer or agreement to transfer), in any
manner, either voluntarily or involuntarily, by operation of law or
otherwise, all or any portion of the Mortgaged Property, or any
interest or rights therein (including air or development rights)
without, in any such case, the prior written consent of the Required
Lenders. As used in this clause, "transfer" shall include, without
limitation, any sale, assignment, lease or conveyance except leases
for occupancy subordinate hereto and to all advances made and to be
made hereunder or, in the event Grantor or Guarantor (or a general
partner or co-venturer of either of them) is a partnership, joint
venture, limited liability company, trust or closely-held corporation,
the sale, conveyance, transfer or other disposition of more than 10%,
in the aggregate, of any class of the issued and outstanding capital
stock of such closely-held corporation or of the beneficial interest
of such partnership, venture, limited liability company or trust, or a
change of any general partner, joint venturer, member or beneficiary,
as the case may be, or, in the event Grantor or Guarantor (or a
general partner, co-venturer, member or beneficiary, as the case may
be, of either of them) is a publicly-held corporation, the sale,
conveyance, transfer or other disposition of more than 10%, in the
aggregate, of the stock-holdings of any of the five (5) individuals or
entities that own the greatest number of shares of each class of
issued and outstanding stock. In the event Grantor or Guarantor is a
limited partnership, and so long as a limited partner has contributed
to (or remains personally liable for) the present and future
partnership capital contributions required of such limited partner by
the partnership agreement, such partner may sell, convey, devise,
transfer or dispose of all or a part of his limited partnership
interest to his spouse, children, grandchildren or a family trust in
which his spouse, children or grandchildren are sole beneficiaries.
Notwithstanding the foregoing provisions of this clause (f), consent
shall not be required for (x) direct or indirect transfers of
beneficial interests in Guarantor and (y) transfers of partnership
interests in Grantor so long as, following any such transfer,
Guarantor or
18
a wholly owned subsidiary of Guarantor remains the managing general
partner of Grantor and the owner of at least a 50% beneficial interest
therein; provided, however, that (i) Guarantor may, without consent,
transfer 50% of its direct or indirect ownership and management
interests in Grantor so long as the transferee is, or is owned and
controlled by, (A) a pension fund, account or trust, or investment
banking company organized under the Laws of any state of the United
States, and licensed or qualified to conduct business under the Laws
of any such state and having a minimum net worth of $500,000,000, (B)
an insurance company organized under the Laws of the United States or
any state thereof having an A.M. Best rating of A or better and
admitted assets of at least $500,000,000, (C) a "money center" bank
organized under the Laws of the United States and having total assets
in excess of $500,000,000 or (D) a Person consented to by the Required
Lenders, such consent not to be unreasonably withheld or delayed and
(ii) transfers of interests in the transferees of Guarantor's direct
or indirect interests in Grantor permitted hereby (and in subsequent
transferees of such interests) may be freely made; or
(g) if Grantor shall encumber, or agree to encumber, in any
manner, either voluntarily or involuntarily, by operation of law or
otherwise, all or any portion of the Mortgaged Property, or any
interest or rights therein, including air or development rights,
(other than the granting of leases in accordance with the provisions
hereof and of the Loan Agreement, the granting of easements designed
to service the Premises and the granting of other encumbrances which
are expressly permitted by the Loan Documents) without, in any such
case, the prior written consent of Administrative Agent. As used in
this clause, "encumber" shall include, without limitation, the placing
or permitting the placing of any mortgage, deed of trust, assignment
of rents or other security device (except as expressly provided
otherwise in clause (f) above, Administrative Agent may grant or deny
its consent under this clause and the immediately preceding clause in
its sole and absolute discretion and, if consent should be given, any
such transfer or encumbrance shall be subject hereto and to any other
documents which evidence or secure the Loan, and, if a transfer, any
such transferee shall assume all of Grantor's obligations hereunder
and thereunder and agree to be bound by all provisions and perform all
obligations contained herein and therein; consent to one such transfer
or encumbrance shall not be deemed to be a waiver of the right to
require consent to future or successive transfers or encumbrances);
then and in every such case:
I. During the continuance of any such Event of Default,
Beneficiary, by notice to Grantor, may declare the entire principal of
the Note then outstanding (if not then due and payable), and all
accrued and unpaid interest and other sums in respect thereof, to be
due and payable immediately, and upon any such declaration the
principal of the Note and said accrued and unpaid interest and other
sums shall become and be immediately due and payable, anything herein
or in the Note or the Loan Agreement to the contrary notwithstanding.
19
II. During the continuance of any such Event of Default, Trustee or
Beneficiary personally, or by their agents or attorneys, may enter
into and upon all or any part of the Premises, and each and every part
thereof, and are each hereby given a right and license and appointed
Grantor's attorney-in-fact and exclusive agent to do so, and may
exclude Grantor, its agents and servants wholly therefrom; and having
and holding the same, may use, operate, manage and control the
Premises and conduct the business thereof, either personally or by
their superintendents, managers, agents, servants, attorneys or
receivers; and upon every such entry, Trustee or Beneficiary, at the
expense of the Mortgaged Property, from time to time, either by
purchase, repairs or construction, may maintain and restore the
Mortgaged Property, whereof they shall become possessed as aforesaid,
may complete the construction of the Improvements and in the course of
such completion may make such changes in the contemplated Improvements
as Beneficiary may deem desirable and may insure the same; and
likewise, from time to time, at the expense of the Mortgaged Property,
Trustee or Beneficiary may make all necessary or proper repairs,
renewals and replacements and such useful alterations, additions,
betterments and improvements thereto and thereon as Beneficiary may
seem advisable; and in every such case Trustee or Beneficiary shall
have the right to manage and operate the Mortgaged Property and to
carry on the business thereof and exercise all rights and powers of
Grantor with respect thereto either in the name of Grantor or
otherwise as Beneficiary shall deem best; and Trustee or Beneficiary
shall be entitled to collect and receive the Rents and every part
thereof, all of which shall for all purposes constitute property of
Grantor; and in furtherance of such right Beneficiary may collect the
rents payable under all leases of the Premises directly from the
lessees thereunder upon notice to each such lessee that an Event of
Default exists hereunder accompanied by a demand on such lessee for
the payment to Beneficiary of all rents due and to become due under
its lease, and Grantor FOR THE BENEFIT OF BENEFICIARY AND EACH SUCH
LESSEE hereby covenants and agrees that the lessee shall be under no
duty to question the accuracy of Beneficiary's statement of default
and shall unequivocally be authorized to pay said rents to Beneficiary
without regard to the truth of Beneficiary's statement of default and
notwithstanding notices from Grantor disputing the existence of an
Event of Default such that the payment of rent by the lessee to
Beneficiary pursuant to such a demand shall constitute performance in
full of the lessee's obligation under the lease for the payment of
rents by the lessee to Grantor; and after deducting the expenses of
conducting the business thereof and of all maintenance, repairs,
renewals, replacements, alterations, additions, betterments and
improvements and amounts necessary to pay for taxes, assessments,
insurance and prior or other proper charges upon the Mortgaged
Property or any part thereof, as well as just and reasonable
compensation for the services of Trustee and Beneficiary and for all
attorneys, counsel, agents, clerks, servants and other employees by
them engaged and employed, Trustee or Beneficiary, as the case may be,
shall apply the moneys arising as aforesaid, first, to the payment of
the principal of the Note and the interest thereon, when and as the
same shall become payable and in such order and proportions as
Beneficiary shall elect and second, to the payment of any other sums
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required to be paid by Grantor hereunder or under any of the other
Loan Documents.
III. During the continuance of any such Event of Default, Trustee
or Beneficiary, as the case may be, with or without entry, personally
or by their agents or attorneys, insofar as applicable, may:
(1) sell the Mortgaged Property, and all estate, right,
title and interest, claim and demand therein, in accordance with
paragraph IV below; or
(2) institute proceedings for the complete or partial
foreclosure hereof; or
(3) take such steps to protect and enforce their rights
whether by action, suit or proceeding in equity or at law for the
specific performance of any covenant, condition or agreement in
the Note, the Loan Agreement or in any of the other Loan
Documents, or in aid of the execution of any power herein
granted, or for any foreclosure hereunder, or for the enforcement
of any other appropriate legal or equitable remedy or otherwise
as Trustee or Beneficiary shall elect.
IV. If Grantor shall default hereunder, Grantor hereby authorizes
and empowers Trustee, at the request of Beneficiary (which request
shall be presumed made), at any time during the continuance of any
Event of Default, to sell all or any portion of the Mortgaged
Property, at public auction, to the highest bidder, for cash, in the
area at the county courthouse of the county in Texas in which the
Mortgaged Property or any part thereof is situated which has been
designated by the commissioner's court of such county as the area
where such sales are to take place (as such designation is recorded in
the real property records of such county) or, if no such area has been
designated by the commissioner's court of such county, in the area at
such county courthouse which has been designated in the notice of
sale, between the hours of 10:00 o'clock A.M. and 4:00 o'clock P.M.
(but not later than three (3) hours after the time of the sale
specified in the notice) on the first Tuesday of any month, after
giving notice of the time, place and terms of said sale, and of the
property to be sold as follows or in any other manner now or hereafter
required or permitted by applicable law, including by Section 51.002
of the Texas Property Code:
Notice of such proposed sale shall be given by posting written
notice thereof at least twenty-one (21) days preceding the
date of the sale at the courthouse door of the county in which
the sale is to be made, and by filing a copy of the notice in
the office of the county clerk of the county in which the sale
is to be made at least twenty-one (21) days preceding the date
of the sale, and if the property to be sold is situated in
more than one county, one notice shall be posted at the
courthouse door of each county in which the property to be
sold is situated and one copy of the notice shall be filed in
the office of the
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county clerk in each county in which the property to be sold
is situated (such notice shall designate the county where
such property will be sold). In addition, Beneficiary shall,
at least twenty-one (21) days preceding the date
of sale, serve written notice of the proposed sale by
certified mail on each debtor obligated to pay the
indebtedness secured hereby according to the records of
Beneficiary. Service of such notice shall be completed upon
deposit of the notice, enclosed in a postpaid wrapper,
properly addressed to such debtor at the most recent address
as shown by the records of Beneficiary, in a post office or
official depository under the care and custody of the United
States Postal Service. The affidavit of any person having
knowledge of the facts to the effect that such service was
completed shall be prima facie evidence of the fact of
service.
Any sale of the Mortgaged Property covered by this Deed may be conducted in the
manner provided in this Deed without the necessity for Trustee to have physical
or constructive possession of the Mortgaged Property (Grantor hereby covenanting
and agreeing to deliver to Trustee any portion of the Mortgaged Property not
actually or constructively possessed by Trustee immediately upon demand by
Trustee) and the title to and right of possession of that property will pass to
the purchaser as completely as if it had been actually present and delivered to
purchaser at the sale. In the event of a sale of the Mortgaged Property, or any
portion thereof, under the terms of the power of sale herein created, Grantor
shall forthwith upon the making of such sale, surrender and deliver possession
of the Mortgaged Property so sold to the purchaser at such sale, and in the
event of Grantor's failure to do so it shall thereupon from and after the making
of such sale be, and continue as, a tenant at will of such purchaser, and in the
event of Grantor's failure to surrender possession of the Mortgaged Property
upon demand, the purchaser, its successors or assigns, shall be entitled to
institute and maintain an action for forcible detainer of the Mortgaged Property
in the Justice of the Peace Court in the Justice Precinct in which the Mortgaged
Property, or any part thereof, is situated.
Any notice that is required or permitted to be given to Grantor may be
addressed to Grantor at Grantor's address as stated above. Any notice that is to
be given by certified mail to any other debtor may, if the address for such
other debtor is not shown by the records of Beneficiary, be addressed to such
other debtor at the address of Grantor as is shown by the records of
Beneficiary. Notwithstanding the foregoing provisions of this paragraph, notice
of such sale given in accordance with the requirements of the applicable law of
the State of Texas in effect at the time of such sale shall constitute
sufficient notice of such sale. Grantor hereby authorizes and empowers Trustee
to sell all or any portion of the Mortgaged Property, together or in lots or
parcels, as Trustee may deem expedient, and to execute and deliver to the
purchaser or purchasers of such property, good and sufficient deeds of
conveyance of fee simple title with covenants of general warranty made on behalf
of Grantor. In no event shall Trustee be required to exhibit, present or display
at any such sale, any of the personalty described herein to be sold at such
sale. Payment of the purchase price to Trustee shall satisfy the obligation of
the purchaser at such sale therefor, and such purchaser shall not be bound to
look after the application thereof. The sale or sales by Trustee of less than
the whole of the Mortgaged Property shall not exhaust the power of sale herein
granted, and Trustee is specifically empowered to make successive
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sale or sales under such power until the whole of the Mortgaged Property shall
be sold; and if the proceeds of such sale or sales of less than the whole of
such Mortgaged Property shall be less than the aggregate of the indebtedness
secured hereby and the expense of executing this trust, this Deed and the lien,
security interest and assignment hereof shall remain in full force and effect as
to the unsold portion of the Mortgaged Property just as though no sale or sales
had been made; provided, however, that Grantor shall never have any right to
require the sale or sales of less than the whole of the Mortgaged Property, but
Beneficiary shall have the right, at its sole election, to request Trustee to
sell less than the whole of the Mortgaged Property. If default is made
hereunder, the holder of the indebtedness or any part thereof on which the
payment is delinquent shall have the option to proceed with foreclosure in
satisfaction of such item either through judicial proceedings or by directing
Trustee to proceed as if under a full foreclosure, conducting the sale as herein
provided without declaring the entire indebtedness secured hereby due, and if
sale is made because of default of an installment, or a part of an installment,
such sale may be made subject to the unmatured part of the Note and other
indebtedness secured by this Deed; and it is agreed that such sale, if so made,
shall not in any manner affect the unmatured part of the indebtedness secured by
this Deed, but as to such unmatured part, this Deed shall remain in full force
and effect as though no sale had been made under the provisions of this
paragraph IV. Several sales may be made hereunder without exhausting the right
of sale for any unmatured part of the indebtedness secured hereby. In the event
of any sale of all or part of the Mortgaged Property under the terms hereof,
Grantor shall pay (in addition to taxable costs) a reasonable fee to Trustee
which shall be in lieu of all other fees and commission permitted by statute or
custom to be paid, reasonable attorneys' fees and all expenses incurred in
obtaining or continuing abstracts of title for the purpose of any such sale. The
provisions of this paragraph IV shall control all other conflicting provisions
of this Deed with respect to any sale of the Mortgaged Property pursuant to this
Deed.
Section 2.02. Other Matters Concerning Sales. (a) Trustee or
Beneficiary may adjourn from time to time any sale by it to be made hereunder or
by virtue hereof by announcement at the time and place appointed for such sale
or for such adjourned sale or sales; and, except as otherwise provided by any
applicable provision of law, Trustee or Beneficiary, as the case may be, without
further notice or publication, may make such sale at the time and place to which
the same shall be so adjourned.
(b) Upon the completion of any sale or sales made by Trustee or
Beneficiary, as the case may be, under or by virtue of this Article II, Trustee,
or an officer of any court empowered to do so, shall execute and deliver to the
accepted purchaser or purchasers a good and sufficient instrument or instruments
conveying, assigning and transferring all estate, right, title and interest in
and to the property and rights sold. Trustee is hereby appointed the true and
lawful attorney irrevocable of Grantor, in its name and stead, to make all
necessary conveyances, assignments, transfers and deliveries of the Mortgaged
Property and rights so sold and for that purpose Trustee may execute all
necessary instruments of conveyance, assignment and transfer, and may substitute
one or more persons with like power, Grantor hereby ratifying and confirming all
that its said attorney or such substitute or substitutes shall lawfully do by
virtue hereof. Nevertheless, Grantor, if requested by Trustee or Beneficiary,
shall ratify and confirm any such sale or sales by executing and delivering to
Trustee or to such purchaser or purchasers all such instruments
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as may be advisable, in the judgment of Trustee or Beneficiary, for the purpose,
and as may be designated in such request. Any such sale or sales made under or
by virtue of this Article II, whether made under the power of sale herein
granted or under or by virtue of judicial proceedings or of a judgment or decree
of foreclosure and sale, shall operate to divest all the estate, right, title,
interest, claim and demand whatsoever, whether at law or in equity, of Grantor
in and to the properties and rights so sold, and shall be a perpetual bar both
at law and in equity against Grantor and against any and all persons claiming or
who may claim the same, or any part thereof from, through or under Grantor.
(c) In the event of any sale or sales made under or by virtue of this
Article II (whether made under the power of sale herein granted or under or by
virtue of judicial proceedings or of a judgment or decree of foreclosure and
sale), the entire principal of, and interest and other sums on, the Note, if not
previously due and payable, and all other sums required to be paid by Grantor
pursuant hereto or to any of the other Loan Documents, immediately thereupon
shall, anything in any of said documents to the contrary notwithstanding, become
due and payable.
(d) The purchase money, proceeds or avails of any sale or sales made
under or by virtue of this Article II, together with any other sums which then
may be held by Trustee or Beneficiary hereunder, whether under the provisions of
this Article II or otherwise, shall be applied as follows:
First: To the payment of the costs and expenses of such sale,
including reasonable compensation to Trustee and Beneficiary, their
agents and counsel, and of any judicial proceedings wherein the same
may be made, and of all expenses, liabilities and advances made or
incurred by Trustee or Beneficiary hereunder, and also including
attorneys' fees, expenses and costs of investigation, all as actually
incurred and including, without limitation, attorneys' fees, costs and
expenses of investigation incurred in appellate proceedings or in any
action or participation in, or in connection with, any case or
proceeding under Chapters 7, 11, or 13 of the United States Bankruptcy
Code or any successor thereto, together with interest at the Prime
Based Default Rate on all advances made by Trustee or Beneficiary, and
of all taxes, assessments or other charges, except any taxes,
assessments or other charges subject to which the Mortgaged Property
shall have been sold.
Second: To the payment of the whole amount then due, owing or
unpaid upon the Note for principal and interest, with interest on the
unpaid principal at the Default Rate from and after the happening of
any Event of Default described in Section 2.01 from the due date of any
such payment of principal until the same is paid, in such order and
amounts as Beneficiary may elect.
Third: To the payment of any other sums required to be paid by
Grantor pursuant to any provision hereof or of any other Loan Document,
including all expenses, liabilities and advances made or incurred by
Beneficiary hereunder or in connection with the enforcement hereof,
together with interest at the Prime Based Default Rate on all such
advances.
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Fourth: To the payment of the surplus, if any, to whomsoever
may be lawfully entitled to receive the same.
(e) Upon any sale or sales made under or by virtue of this Article II,
whether made under the power of sale herein granted or under or by virtue of
judicial proceedings or of a judgment or decree of foreclosure and sale,
Beneficiary may bid for and acquire the Mortgaged Property or any part thereof
and in lieu of paying cash therefor may make settlement for the purchase price
by crediting upon the indebtedness secured hereby the net sales price after
deducting therefrom the expenses of the sale and the costs of the action and any
other sums which Trustee or Beneficiary are authorized to deduct hereunder.
Section 2.03. Payment of Amounts Due. (a) In case an Event of Default
described in Section 2.01 shall have happened and be continuing, then, upon
demand of Beneficiary, Grantor will pay to Beneficiary the whole amount which
then shall have become due and payable on the Note, for principal or interest or
both, as the case may be, and after the happening of said Event of Default will
also pay to Beneficiary interest at the Default Rate on the then unpaid
principal of the Note, and the sums required to be paid by Grantor pursuant to
any provision hereof or of the Loan Agreement, and in addition thereto such
further amount as shall be sufficient to cover the costs and expenses of
collection, including reasonable compensation to Trustee and Beneficiary, their
agents and counsel and any expenses incurred by Trustee or Beneficiary
hereunder. In the event Grantor shall fail forthwith to pay all such amounts
upon such demand, Beneficiary shall be entitled and empowered to institute such
action or proceedings at law or in equity as may be advised by its counsel for
the collection of the sums so due and unpaid, and may prosecute any such action
or proceedings to judgment or final decree, and may enforce any such judgment or
final decree against Grantor and collect, out of the property of Grantor
wherever situated, as well as out of the Mortgaged Property, in any manner
provided by law, moneys adjudged or decreed to be payable.
(b) Beneficiary shall be entitled to recover judgment as aforesaid
either before, after or during the pendency of any proceedings for the
enforcement of the provisions hereof; and the right of Beneficiary to recover
such judgment shall not be affected by any entry or sale hereunder, or by the
exercise of any other right, power or remedy for the enforcement of the
provisions hereof, or the foreclosure of the lien hereof; and in the event of a
sale of the Mortgaged Property, and of the application of the proceeds of sale,
as herein provided, to the payment of the debt hereby secured, Beneficiary shall
be entitled to enforce payment of, and to receive all amounts then remaining due
and unpaid upon, the Note, and to enforce payment of all other charges, payments
and costs due hereunder or under the Loan Agreement or otherwise in respect of
the Loan, and shall be entitled to recover judgment for any portion of the debt
remaining unpaid, with interest at the Default Rate. In case of proceedings
against Grantor in insolvency or bankruptcy or any proceedings for its
reorganization or involving the liquidation of its assets, then Beneficiary
shall be entitled to prove the whole amount of principal, interest and other
sums due upon the Note to the full amount thereof, and all other payments,
charges and costs due hereunder or under the Loan Agreement or otherwise in
respect of the Loan, without deducting therefrom any proceeds obtained from the
sale of the whole or any part of the Mortgaged Property, provided, however, that
in no case shall Beneficiary receive a greater amount than such principal and
25
interest and such other payments, charges and costs from the aggregate amount of
the proceeds of the sale of the Mortgaged Property and the distribution from the
estate of Grantor.
(c) No recovery of any judgment by Beneficiary and/or Lenders and no
levy of an execution under any judgment upon the Mortgaged Property or upon any
other property of Grantor shall affect in any manner or to any extent, the lien
hereof upon the Mortgaged Property or any part thereof, or any liens, rights,
powers or remedies of Trustee or Beneficiary hereunder, but such liens, rights,
powers and remedies of Trustee or Beneficiary shall continue unimpaired as
before.
(d) Any moneys thus collected by Beneficiary under this Section 2.03
shall be applied by Beneficiary in accordance with the provisions of clause (d)
of Section 2.02.
Section 2.04. Actions; Receivers. After the happening of any Event of
Default and immediately upon the commencement of any action, suit or other legal
proceedings by Trustee or Beneficiary to obtain judgment for the principal of,
or interest on, the Note and other sums required to be paid by Grantor pursuant
to any provision hereof or of the Loan Agreement, or of any other nature in aid
of the enforcement of the Note or hereof or of the Loan Agreement, Grantor will
(a) WAIVE THE ISSUANCE AND SERVICE OF PROCESS AND ENTER ITS VOLUNTARY APPEARANCE
IN SUCH ACTION, SUIT OR PROCEEDING AND (b) IF REQUIRED BY BENEFICIARY, CONSENT
TO THE APPOINTMENT OF A RECEIVER OR RECEIVERS OF ALL OR PART OF THE MORTGAGED
PROPERTY AND OF ANY OR ALL OF THE RENTS IN RESPECT THEREOF. After the happening
of any Event of Default and during its continuance, or upon the commencement of
any proceedings to foreclose this Deed or to enforce the specific performance
hereof or in aid thereof or upon the commencement of any other judicial
proceeding to enforce any right of Trustee or Beneficiary, Trustee or
Beneficiary shall be entitled, as a matter of right, if they shall so elect,
without the giving of notice to any other party and without regard to the
adequacy or inadequacy of any security for the Obligations secured hereby,
forthwith either before or after declaring the unpaid principal of the Note to
be due and payable, to the appointment of such a receiver or receivers.
Section 2.05. Beneficiary's / Trustee's Right to Possession.
Notwithstanding the appointment of any receiver, liquidator or trustee of
Grantor, or of any of its property, or of the Mortgaged Property or any part
thereof, Trustee and Beneficiary shall be entitled to retain possession and
control of all property now or hereafter held hereunder.
Section 2.06. Remedies Cumulative. No remedy herein conferred upon or
reserved to Trustee or Beneficiary is intended to be exclusive of any other
remedy or remedies, and each and every such remedy shall be cumulative, and
shall be in addition to every other remedy given hereunder or now or hereafter
existing at law, in equity or by statute. No delay or omission of Trustee or
Beneficiary to exercise any right or power accruing upon any Event of Default
shall impair any such right or power, or shall be construed to be a waiver of
any such Event of Default or any acquiescence therein; and every power and
remedy given hereby to Trustee or Beneficiary may be exercised from
26
time to time as often as may be deemed by them expedient. Nothing herein or in
the Note or the Loan Agreement shall affect the obligation of Grantor to pay the
principal of, and interest and other sums on, the Note and the Loan Agreement in
the manner and at the time and place therein respectively expressed.
Section 2.07. Moratorium Laws; Right of Redemption. Grantor will not at
any time insist upon, or plead, or in any manner whatever claim or take any
benefit or advantage of any stay or extension or moratorium law, any exemption
from execution or sale of the Mortgaged Property or any part thereof, wherever
enacted, now or at any time hereafter in force, which may affect the covenants
and terms of performance hereof, nor claim, take or insist upon any benefit or
advantage of any law now or hereafter in force providing for the valuation or
appraisal of the Mortgaged Property, or any part thereof, prior to any sale or
sales thereof which may be made pursuant to any provision herein, or pursuant to
the decree, judgment or order of any court of competent jurisdiction; nor, after
any such sale or sales, claim or exercise any right under any statute heretofore
or hereafter enacted to redeem the property so sold or any part thereof and
Grantor hereby expressly waives all benefit or advantage of any such law or
laws, and covenants not to hinder, delay or impede the execution of any power
herein granted or delegated to Trustee or Beneficiary, but to suffer and permit
the execution of every power as though no such law or laws had been made or
enacted. Grantor, for itself and all who may claim under it, waives, to the
extent that it lawfully may, all right to have the Mortgaged Property marshaled
upon any foreclosure hereof. Grantor hereby waives any and all rights of
redemption from sale under any order or decree of foreclosure of this Deed on
behalf of Grantor and all persons beneficially interested therein, and each and
every person except decree or judgment creditors of Grantor in its
representative capacity acquiring any interest in or title to the Premises
subsequent to the date of this Deed.
Section 2.08. Grantor's Use and Occupancy after Default. During the
continuance of any Event of Default and pending the exercise by Trustee or
Beneficiary of their right to exclude Grantor from all or any part of the
Premises, Grantor agrees to pay the fair and reasonable rental value for the use
and occupancy of the Premises or any portion thereof which are in its possession
for such period and, upon default of any such payment, will vacate and surrender
possession of the Premises to Trustee or Beneficiary, as the case may be, or to
a receiver, if any, and in default thereof may be evicted by any summary action
or proceeding for the recovery of possession of premises for non-payment of
rent, however designated.
Section 2.09. Beneficiary's Rights Concerning Application of Amounts
Collected. Notwithstanding anything to the contrary contained herein or in any
of the other Loan Documents, upon the occurrence of an Event of Default,
Beneficiary may apply, to the extent permitted by law, any amount collected
hereunder to principal, interest or any other sum due under the Note or the Loan
Agreement or otherwise in respect of the Loan in such order and amounts, and to
such obligations, as the Required Lenders shall elect in their sole and absolute
discretion.
27
Section 2.10. Regarding Defenses.. No action for the enforcement of
this Deed or any provision hereof shall be subject to any defense which would
not be good and available to the party interposing the same in an action at law
upon the Note.
Section 2.11. Expenses as Indebtedness.. In any suit to foreclose the
lien hereof (including any partial foreclosure) or to enforce any other remedy
of Beneficiary or Lenders under this Deed or the Note or other Loan Documents or
otherwise in respect of the Loan, there shall be allowed and included as
additional indebtedness in the decree for sale or other judgment or decree all
expenditures and expenses which may be paid or incurred by or on behalf of
Beneficiary or Lenders for attorneys' fees, appraiser's fees, outlays for
documentary and expert evidence, stenographer's charges, publication costs, and
costs (which may be estimated as to items to be expended after entry of the
decree) of procuring all such abstracts of title, title searches and
examinations, title insurance policies, Torrens certificates, and similar data
and assurances with respect to title and value as Beneficiary or Lenders may
deem reasonably necessary either to prosecute such suit or to evidence to
bidders at any sale which may be had pursuant to such decree the true condition
of the title to or the value of the Premises.
Article III
CONCERNING TRUSTEE
Section 3.01. Trustee's Performance. Trustee, by its acceptance hereof,
covenants faithfully to perform and fulfill the trusts herein created. Trustee
shall not incur any personal liability hereunder, except for its own willful
neglect, default or misconduct, and Trustee shall have the right to rely on any
instrument, document or signature authorizing or supporting any action taken or
proposed to be taken by it hereunder, believed by it in good faith to be
genuine. Without limiting the generality of the foregoing, Trustee, upon
presentation to it of an affidavit signed by or on behalf of Beneficiary,
setting forth any fact or facts showing a default under any of the terms or
conditions of this Deed or other Loan Documents, is authorized to accept as true
and conclusive all facts and statements in such affidavit and to act hereunder
in complete reliance thereon. Trustee shall be entitled to reimbursement for all
expenses incurred by it in the performance of its duties, and shall be entitled
to reasonable compensation for such of its services as shall be rendered. At any
time, or from time to time, without notice, upon written request of Beneficiary
and without affecting the personal liability of any person for payment and
performance of the Obligations secured hereby or the effect of this Deed upon
the remainder of the Mortgaged Property, Trustee may (i) reconvey any part of
the Premises, (ii) consent in writing to the making of any map or plat thereof,
(iii) join in granting any easement thereon or (iv) join in any extension
agreement or any agreement subordinating the lien or charge hereof.
Section 3.02. Resignation by Trustee. Trustee may resign at any time
upon giving thirty (30) days' notice to Grantor and Beneficiary.
Section 3.03. Removal of Trustee; Successors. Beneficiary may remove
Trustee at any time or from time to time and select a successor trustee. In the
event of the
28
death, removal, resignation or refusal or inability to act of Trustee, or in its
sole discretion for any reason whatsoever, Beneficiary may, without notice and
without specifying any reason therefor and without applying to any court, select
and appoint a successor trustee, and all powers, rights, duties and authority of
Trustee, as aforesaid, shall thereupon become vested in such successor. The
authority hereby conferred on Beneficiary shall extend to the appointment of
other successor and substitute trustees successively until the indebtedness
hereby secured has been paid in full, or until the Mortgaged Property is sold
hereunder, and each substitute and successor trustee shall succeed to all of the
rights and powers of the original Trustee named herein. In such connection,
Beneficiary may, on its and Grantor's behalf, execute, acknowledge and record an
instrument or agreement of such substitution, and Grantor hereby irrevocably
appoints Beneficiary as its attorney-in-fact, with full power of substitution,
to do so. Such substitute trustee shall not be required to give bond for the
faithful performance of its duties unless required by Beneficiary.
Article IV
MISCELLANEOUS
Section 4.01. Assignment of Leases and Rents. This Deed constitutes a
present, absolute, unconditional and irrevocable assignment of all leases now or
hereafter existing and of all of the Rents now or hereafter accruing, and
Grantor, without limiting the generality of the Granting Clause hereof,
specifically hereby presently, absolutely, unconditionally and irrevocably
assigns, transfers and sets over all leases now or hereafter existing and all of
the Rents now or hereafter accruing to Beneficiary, and hereby gives to and
confers upon Beneficiary the right, power and authority to collect such Rents.
Grantor irrevocably appoints Beneficiary its true and lawful attorney at the
option of Beneficiary at any time to demand, receive and enforce payment, to
give receipts, releases and satisfactions and to sue, either in the name of
Grantor or in the name of Beneficiary, for all such Rents and apply the same to
the indebtedness secured hereby. The aforesaid assignment shall be effective
immediately upon the execution hereof and is not conditioned upon the occurrence
of any Event of Default hereunder or any other contingency or event, provided,
however, that Beneficiary hereby grants to Grantor the right and license to
collect and receive the Rents as they become due, and not in advance (other than
prepayments of rent not in excess of one month's rent, as permitted by Section
1.14), so long as no Event of Default exists hereunder. Immediately upon the
occurrence of any such Event of Default, the foregoing right and license shall
be automatically terminated and of no further force or effect. Nothing contained
in this Section or elsewhere in this Deed, nor the exercise by Beneficiary of
any of its rights or remedies under this Section or elsewhere in this Deed,
shall be construed to make Beneficiary a mortgagee in possession, or otherwise
responsible or liable in any manner with respect to the Mortgaged Property or
the use, occupancy, enjoyment or operation of all or any portion thereof, unless
and until Beneficiary actually takes possession of the Mortgaged Property, nor
to obligate Beneficiary to take any action or incur any expense or discharge any
duty or liability under or in respect of any leases or other agreements relating
to the Mortgaged Property or any part thereof, nor shall appointment of a
receiver for the Mortgaged Property or any part thereof by any court at the
request of Beneficiary or by agreement with Grantor or the entering into
possession of the
29
Mortgaged Property or any part thereof by such receiver be deemed to make
Beneficiary a mortgagee-in-possession or otherwise responsible or liable in any
manner with respect to the Mortgaged Property or the use, occupancy, enjoyment
or operation of all or any portion thereof.
Section 4.02. Security Agreement. This Deed constitutes a security
agreement under the applicable Uniform Commercial Code with respect to the
Chattels and such other of the Mortgaged Property which is personal property. In
addition to the rights and remedies granted to Beneficiary by other applicable
law or hereby, Beneficiary shall have all of the rights and remedies with
respect to the Chattels and such other personal property as are granted to a
secured party under the applicable Uniform Commercial Code. Upon Beneficiary's
request during the existence of an Event of Default, Grantor shall promptly and
at its expense assemble the Chattels and such other personal property and make
the same available to Beneficiary at a convenient place acceptable to
Beneficiary. Grantor shall pay to Beneficiary on demand, with interest at the
Prime Based Default Rate, any and all expenses, including attorneys' fees,
incurred by Beneficiary in protecting its interest in the Chattels and such
other personal property and in enforcing its rights with respect thereto. Any
notice of sale, disposition or other intended action by Beneficiary with respect
to the Chattels and such other personal property sent to Grantor in accordance
with the provisions hereof at least five (5) days prior to such action shall
constitute reasonable notice to Grantor. The proceeds of any such sale or
disposition, or any part thereof, may be applied by Beneficiary to the payment
of the indebtedness secured hereby in such order and proportions as Beneficiary
in its discretion shall deem appropriate. To the extent Grantor may lawfully do
so and without limiting any rights and/or privileges herein granted to
Beneficiary, Grantor agrees that Beneficiary and/or Trustee and any successor
Trustee may dispose of any or all of the Chattels or such other personal
property at the same time and place and after giving the same notices provided
in this Deed in connection with a non-judicial foreclosure sale under the terms
and conditions set forth in Article II, Section 2.01, III or IV, of this Deed.
In this connection, Grantor agrees that the sale may be conducted by Trustee or
successor Trustee; that the sale of the real estate and improvements described
in this Deed and the Chattels or such other personal property or any part
thereof, may be sold separately or together; and that in the event the Premises
and the Chattels and such other personal property, or any part thereof are sold
together, Beneficiary will not be obligated to allocate the consideration
received as between the Premises and the Chattels and such other personal
property.
Section 4.03. Application of Certain Payments. In the event that all or
any part of the Mortgaged Property is encumbered by one or more deeds of trust
held by or for the benefit of Beneficiary, Grantor hereby irrevocably authorizes
and directs Beneficiary to apply any payment received by Beneficiary in respect
of any note secured hereby or by any other such deed of trust to the payment of
such of said notes as Beneficiary shall elect in its sole and absolute
discretion, and Beneficiary shall have the right to apply any such payment in
reduction of principal and/or interest and in such order and amounts as
Beneficiary shall elect in its sole and absolute discretion without regard to
the priority of the deed of trust securing the note so repaid or to contrary
directions from Grantor or any other party.
30
Section 4.04. Severability. In the event any one or more of the
provisions contained herein or in the Note or the Loan Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof, but this Deed shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein or therein, provided,
however, that if such provision held to be invalid, illegal or unenforceable
relates to the payment of any principal or interest under the Note or any other
material monetary sum under any of the Loan Documents, then Beneficiary may, at
its option, declare the indebtedness and any other sums secured hereby to be
immediately due and payable.
Section 4.05. Modifications and Waivers in Writing. No provision hereof
may be changed, waived, discharged or terminated orally or by any other means
except as provided in Section 9.12 of the Loan Agreement. Any agreement
hereafter made by Grantor and Beneficiary relating hereto shall be superior to
the rights of the holder of any intervening or subordinate lien or encumbrance.
Section 4.06. Notices. All notices, demands, consents, approvals and
statements required or permitted hereunder shall be in writing and shall be
given or served as provided in Section 9.11 of the Loan Agreement.
Section 4.07. Successors and Assigns. All of the grants, covenants,
terms, provisions and conditions herein shall run with the land and shall apply
to, bind and inure to the benefit of, the successors and assigns of Grantor, the
successors in trust of Trustee and the endorsees, transferees, successors and
assigns of Beneficiary.
Section 4.08. Other Liens; Subrogation. The lien hereby created shall
take precedence over and be a prior lien to any other lien of any character,
whether vendor's, materialmen's or mechanic's lien, hereafter created on the
Mortgaged Property. In the event any or all of the proceeds to the indebtedness
secured hereby have been used to extinguish, extend or renew any indebtedness
heretofore existing against the Mortgaged Property or to satisfy any
indebtedness or obligation secured by a lien or encumbrance of any kind, such
proceeds have been advanced by Lenders and/or Beneficiary at Grantor's request,
and, to the extent of such funds so used, the indebtedness hereby secured shall
be subrogated to all of the rights, claims, liens, titles and interest
heretofore existing against the Mortgaged Property to secure the indebtedness or
obligation so extinguished, paid, extended or renewed, and the former rights,
claims, liens, title and interests, if any, shall not be waived but rather shall
be continued in full force and effect and in favor of Lenders and/or
Beneficiary, as the case may be, and shall not be merged with the lien and
security for the repayment of the indebtedness hereby secured.
Section 4.09. Limitation on Interest. Regardless of any provision
contained herein or in any of the other Loan Documents, the total liability for
payments in the nature of interest shall not exceed the applicable limits now
imposed by any applicable state or federal interest rate laws to which
Beneficiary and/or Lenders may be subject. If any payments in the nature of
interest, fees and other charges made hereunder or under the Note or other Loan
Documents are held to be in excess of the applicable limits imposed by
31
any such applicable state or federal interest rate laws, it is agreed that any
such amount held to be in excess shall be considered payment of principal under
the Note and the indebtedness evidenced thereby shall be reduced by such amount
in the inverse order of maturity so that the total liability for payments in the
nature of interest, fees and other charges shall not exceed the applicable
limits imposed by any such applicable state or federal interest rate laws in
compliance with the desires of Grantor, Lenders and Beneficiary.
Section 4.10. Counterparts. This Deed may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original; and all such counterparts shall together constitute but one and
the same deed.
Section 4.11. Substitute Deeds. Grantor and Beneficiary shall, upon
their mutual agreement to do so, execute such documents as may be necessary in
order to effectuate the modification hereof, including the execution of
substitute deeds of trust, so as to create two (2) or more liens on or security
titles in respect of the Mortgaged Property in such amounts as may be mutually
agreed upon but in no event to exceed, in the aggregate, the Note Amount; in
such event, Grantor covenants and agrees to pay the reasonable fees and expenses
of Beneficiary and its counsel in connection with any such modification.
Section 4.12. Lenders' Sale of Interests in Loan. Grantor recognizes
that Lenders may sell and transfer interests in the Loan as provided in Section
9.13 of the Loan Agreement. In connection with any replacement of notes as part
of a transfer of interests in the Loan, Grantor (x) agrees to execute and
deliver to Beneficiary an amendment to this Deed, in form reasonably
satisfactory to Beneficiary, to change the description of the Note set forth on
SCHEDULE B and (y) hereby irrevocably appoints and designates Beneficiary as
Grantor's attorney-in-fact, coupled with an interest, to execute and deliver any
such amendments on Grantor's behalf.
Section 4.13. No Merger of Interests. Unless expressly provided
otherwise, in the event that ownership hereof and title to the fee and/or
leasehold estates in the Premises encumbered hereby shall become vested in the
same person or entity, this Deed shall not merge in said title but shall
continue to be and remain a valid and subsisting lien and/or trust deed on said
estates in the Premises for the amount secured hereby.
Section 4.14. No Credit For Taxes. Grantor shall not claim or demand or
be entitled to receive any credit or credits on the principal indebtedness to be
secured by this Deed, or on the interest payable thereon, for any part of the
taxes assessed against the Premises and no deduction shall be made or claimed
from the taxable value of the Premises by reason of this Deed.
Section 4.15. No Consent to Contracts. Neither Beneficiary nor Lenders
consents to any contract for labor or materials, and all contracts for labor or
materials that will be let by Grantor shall at all times be subordinate to this
Deed.
Section 4.16. No Oral Agreements. THIS WRITTEN DEED OF TRUST REPRESENTS
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT
32
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENT OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
Section 4.17. Business Loan. Grantor represents and agrees that the
Obligations secured hereby (a) constitute a business loan and (b) are exempted
transactions under the federal Truth-in-Lending Act (15 U.S.C. Section 1601, et
seq.). None of the forgoing is intended, however, to vitiate or in any way
detract from the intention of Grantor, Lenders and Beneficiary to have the laws
of the State of New York apply in all respects to the construction and
enforcement of the Note and the Loan Agreement, as said intention is expressly
set forth therein.
Section 4.18. CERTAIN WAIVERS. GRANTOR HEREBY EXPRESSLY AND
UNCONDITIONALLY: (A) ACKNOWLEDGES THE RIGHT OF BENEFICIARY TO ACCELERATE THE
INDEBTEDNESS EVIDENCED BY THE NOTE AND ANY OTHER INDEBTEDNESS IN ACCORDANCE WITH
THE LOAN DOCUMENTS AND THE POWER OF SALE GIVEN HEREIN TO BENEFICIARY AND/OR
TRUSTEE TO SELL THE MORTGAGED PROPERTY BY NONJUDICIAL FORECLOSURE UPON DEFAULT
BY GRANTOR WITHOUT ANY JUDICIAL HEARING AND WITHOUT ANY NOTICE OTHER THAN SUCH
NOTICE (IF ANY) AS IS SPECIFICALLY REQUIRED TO BE GIVEN UNDER THE PROVISIONS OF
THIS DEED OR BY LAW; (B) WAIVES ANY AND ALL RIGHTS THAT GRANTOR MAY HAVE UNDER
THE CONSTITUTION OF THE UNITED STATES OF AMERICA (INCLUDING, WITHOUT LIMITATION,
THE FIFTH AND FOURTEENTH AMENDMENTS THEREOF), THE VARIOUS PROVISIONS OF THE
CONSTITUTIONS FOR THE SEVERAL STATES, OR BY REASON OF ANY OTHER APPLICABLE LAW,
TO NOTICE AND TO JUDICIAL HEARING PRIOR TO THE EXERCISE BY BENEFICIARY OF ANY
RIGHT OR REMEDY HEREIN PROVIDED TO BENEFICIARY, EXCEPT SUCH NOTICE (IF ANY) AS
IS SPECIFICALLY REQUIRED TO BE GIVEN UNDER THE LOAN DOCUMENTS OR BY LAW; (C)
ACKNOWLEDGES THAT GRANTOR HAS READ THIS DEED AND ITS PROVISIONS HAVE BEEN
EXPLAINED FULLY TO GRANTOR, AND GRANTOR HAS CONSULTED WITH COUNSEL OF GRANTOR'S
CHOICE PRIOR TO EXECUTING THIS DEED AND INITIALLING THIS SECTION 4.18; (D)
ACKNOWLEDGES THAT ALL WAIVERS OF THE AFORESAID RIGHTS OF GRANTOR HAVE BEEN MADE
KNOWINGLY, INTENTIONALLY AND WILLINGLY BY GRANTOR AS A PART OF A BARGAINED-FOR
LOAN TRANSACTION AND THAT THIS DEED IS VALID AND ENFORCEABLE BY BENEFICIARY
AGAINST GRANTOR IN ACCORDANCE WITH ALL THE TERMS, PROVISIONS AND CONDITIONS
HEREOF; AND (E) WAIVES, IN CONNECTION WITH ANY FORECLOSURE OR SIMILAR ACTION OR
PROCEDURE BROUGHT BY BENEFICIARY OR LENDERS ASSERTING AN EVENT OF DEFAULT
HEREUNDER, ANY AND EVERY RIGHT IT MAY HAVE TO (I) INJUNCTIVE RELIEF, (II) A
TRIAL BY JURY (IT BEING UNDERSTOOD THAT BY ITS ACCEPTANCE HEREOF BENEFICIARY
ALSO WAIVES ITS RIGHT TO TRIAL BY JURY), (III) INTERPOSE ANY COUNTERCLAIM
THEREIN, OTHER THAN A COUNTERCLAIM THAT IF NOT BROUGHT IN THE SUIT, ACTION OR
33
PROCEEDING BROUGHT BY BENEFICIARY OR LENDERS COULD NOT BE BROUGHT IN A SEPARATE
SUIT, ACTION OR PROCEEDING OR WOULD BE SUBJECT TO DISMISSAL OR SIMILAR
DISPOSITION FOR FAILURE TO HAVE BEEN ASSERTED IN SUCH SUIT, ACTION OR PROCEEDING
BROUGHT BY BENEFICIARY OR LENDERS AND (IV) HAVE THE SAME CONSOLIDATED WITH ANY
OTHER OR SEPARATE SUIT, ACTION OR PROCEEDING. NOTHING IN THIS SECTION SHALL
PREVENT OR PROHIBIT GRANTOR FROM INSTITUTING OR MAINTAINING A SEPARATE ACTION
AGAINST BENEFICIARY OR ANY LENDER WITH RESPECT TO ANY ASSERTED CLAIM.
Section 4.19. GOVERNING LAW. GRANTOR AND BENEFICIARY INTEND THAT THE
VALIDITY AND CONSTRUCTION OF THE OBLIGATIONS SECURED BY THIS DEED BE GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK INCLUDING ALL OBLIGATIONS AND LIABILITIES
HEREUNDER WITH RESPECT TO THE PAYMENT OF INTEREST OR ANY OTHER COMPENSATION FOR
THE USE, FORBEARANCE OR DETENTION OF MONEY. THIS DEED SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE
TO THE CONFLICTS OF LAW PRINCIPLES OF THAT STATE, EXCEPT ONLY TO THE EXTENT THAT
TEXAS LAW EXPRESSLY PROVIDES THAT IT GOVERNS AND THAT A CONTRARY AGREEMENT BY
THE PARTIES IS INEFFECTIVE AND EXCEPT THAT THE LAW OF THE STATE OF TEXAS SHALL
APPLY TO ANY AND ALL ACTS WITH RESPECT TO THE CREATION AND PRIORITY OF THE LIEN
OF THIS DEED AND ASSIGNMENT OF LEASES AND RENTS ON THE MORTGAGED PROPERTY HEREBY
EVIDENCED AND FORECLOSURE BY TRUSTEE ON THE MORTGAGED PROPERTY. GRANTOR,
BENEFICIARY AND TRUSTEE COVENANT AND AGREE TO TAKE ANY AND ALL ACTION WHICH MAY
BE NECESSARY UNDER TEXAS LAW WITH RESPECT TO FORECLOSURE UNDER THE LAWS OF THE
STATE OF TEXAS. SHOULD ANY OBLIGATION OR REMEDY UNDER THIS DEED BE INVALID OR
UNENFORCEABLE UNDER THE LAWS PROVIDED HEREIN TO GOVERN, THE LAWS OF ANOTHER
STATE WHOSE LAWS CAN VALIDATE AND APPLY TO THIS DEED SHALL APPLY.
Section 4.20. Non-Recourse. No recourse shall be had under this Deed
against Grantor or its constituent partners except as and to the extent set
forth in Section 10.02 of the Loan Agreement.
34
Section 4.21. Partial Releases. Portions of the Premises may be
released from time to time from the lien of this Deed as provided in Section
9.26 of the Loan Agreement.
IN WITNESS WHEREOF, this Deed has been duly executed and delivered by
Grantor.
WILLOW BEND ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Willow Bend Holdings 1 LLC,
a Delaware limited liability company,
its sole general partner
By: The Taubman Realty Group
Limited Partnership,
a Delaware limited partnership,
its sole member
By /s/ Steven Eder
------------------------------
Name: Steven E. Eder
Title: Authorized Signatory
35
STATE OF NEW YORK ss.
ss.
COUNTY OF NEW YORK ss.
BEFORE ME, the undersigned authority, on this day personally
appeared Steven E. Eder, an authorized signatory of The Taubman Realty Group
Limited Partnership, a Delaware limited partnership, which is the sole member of
Willow Bend Holdings 1 LLC, a Delaware limited liability company, which is the
general partner of Willow Bend Associates Limited Partnership, a Delaware
limited partnership, known to me to be the person whose name is subscribed to
the foregoing instrument, and acknowledged to me that he executed the same for
the purposes and consideration therein expressed and in the capacity therein
stated, as the act and deed of Taubman Realty Group Limited Partnership, which
is acting for and on behalf of Willow Bend Holdings 1 LLC which is acting for
and on behalf of Willow Bend Associates Limited Partnership.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 21st day of June,
2000.
/s/ Jennifer A. Meyer
-----------------------------------------------------
Notary Public in and for the
State of New York
/s/ Jennifer A. Meyer
-----------------------------------------------------
Printed Name of Notary Public
My Commission Expires:
11/8/01
- ------------------------------
SCHEDULE B
(Notes)
1. Note dated June 21, 2000, in the principal amount of $70,000,000,
from Willow Bend Associates Limited Partnership to PNC Bank, National
Association.
2. Note dated June 21, 2000, in the principal amount of $70,000,000,
from Willow Bend Associates Limited Partnership to Fleet National Bank.
3. Note dated June 21, 2000, in the principal amount of $40,000,000,
from Willow Bend Associates Limited Partnership to Bayerische Hypo- und
Vereinsbank AG, New York Branch.
2. Note dated June 21, 2000, in the principal amount of $40,000,000,
from Willow Bend Associates Limited Partnership to Commerzbank AG, New
York Branch.
TABLE OF CONTENTS
Page
RECITAL........................................................................1
CERTAIN DEFINITIONS AND RULES OF CONSTRUCTION..................................1
GRANTING CLAUSE................................................................4
Article I COVENANTS OF GRANTOR........................................6
Section 1.01. (a) Warranty of Title; Power and Authority..................6
(b) Flood Hazard Area.......................................6
Section 1.02. (a) Further Assurances......................................6
(b) Information Reporting and Back-up Withholding...........6
Section 1.03. (a) Filing and Recording of Documents.......................7
(b) Filing and Recording Fees and Other Charges.............7
Section 1.04. Payment and Performance of Loan Documents...................7
Section 1.05. Maintenance of Existence....................................7
Section 1.06. After-Acquired Property.....................................7
Section 1.07. (a) Payment of Taxes and Other Charges......................8
(b) Payment of Mechanics and Materialmen....................9
(c) Good Faith Contests.....................................9
Section 1.08. Taxes on Trustee, Beneficiary or Lenders....................9
Section 1.09. Insurance...................................................9
Section 1.10. Protective Advances by Beneficiary.........................13
Section 1.11. Estoppel Certificates......................................13
Section 1.12. Maintenance of Premises and Improvements...................13
Section 1.13. Condemnation...............................................14
Section 1.14. Leases.....................................................15
Section 1.15. Premises Documents.........................................16
Section 1.16. Trust Fund; Lien Laws......................................16
Section 1.17. Reliance on Premises to Fulfill Governmental Requirements..16
Section 1.18. Non-Disturbance and Attornment Agreements..................17
Section 1.19. Expenses of Trustee........................................17
Article II EVENTS OF DEFAULT AND REMEDIES.............................17
Section 2.01. Events of Default and Certain Remedies.....................17
Section 2.02. Other Matters Concerning Sales.............................23
Section 2.03. Payment of Amounts Due.....................................25
Section 2.04. Actions; Receivers.........................................26
Section 2.05. Beneficiary's/Trustee's Right to Possession................26
(i)
Section 2.06. Remedies Cumulative........................................26
Section 2.07. Moratorium Laws; Right of Redemption.......................27
Section 2.08. Grantor's Use and Occupancy after Default..................27
Section 2.09. Beneficiary's Rights Concerning Application of Amounts
Collected..................................................27
Section 2.10. Regarding Defenses.........................................28
Section 2.11. Expenses as Indebtedness...................................28
Article III CONCERNING TRUSTEE.........................................28
Section 3.01. Trustee's Performance......................................28
Section 3.02. Resignation by Trustee.....................................28
Section 3.03. Removal of Trustee; Successors.............................28
Article IV MISCELLANEOUS..............................................29
Section 4.01. Assignment of Leases and Rents.............................29
Section 4.02. Security Agreement.........................................30
Section 4.03. Application of Certain Payments............................30
Section 4.04. Severability...............................................31
Section 4.05. Modifications and Waivers in Writing.......................31
Section 4.06. Notices....................................................31
Section 4.07. Successors and Assigns.....................................31
Section 4.08. Other Liens; Subrogation...................................31
Section 4.09. Limitation on Interest.....................................31
Section 4.10. Counterparts...............................................32
Section 4.11. Substitute Deeds...........................................32
Section 4.12. Lenders' Sale of Interests in Loan.........................32
Section 4.13. No Merger of Interests.....................................32
Section 4.14. No Credit For Taxes........................................32
Section 4.15. No Consent to Contracts....................................32
Section 4.16. No Oral Agreements.........................................32
Section 4.17. Business Loan..............................................33
Section 4.18. CERTAIN WAIVERS............................................33
Section 4.19. GOVERNING LAW..............................................34
Section 4.20. Non-Recourse...............................................34
Section 4.21. Partial Releases...........................................35
(ii)