EXHIBIT 10.7
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CREDIT LINE DEED OF TRUST
GENERAL FORM OF
DEED OF TRUST, ASSIGNMENT OF LEASES
AND RENTS AND SECURITY AGREEMENT
BY
[PROPERTY OWNER NAME]
(Trustor)
TO
[TRUSTEE NAME]
(Trustee)
FOR THE BENEFIT OF
MERRILL LYNCH MORTGAGE LENDING, INC.
(Beneficiary)
Dated: As of June __, 2004
Property Location: [PROPERTY NAME]
[STREET ADDRESS]
[COUNTY]
[CITY, STATE]
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DOCUMENT PREPARED BY AND WHEN RECORDED, RETURN TO:
Sidley Austin Brown & Wood LLP
787 Seventh Avenue
New York, New York 10019
Attention: Mark A. Poole, Esq.
A CREDIT LINE DEED OF TRUST
THIS DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT (this
"DEED OF TRUST"), made as of June __, 2004, by [PROPERTY OWNER NAME] having its
principal place of business at c/o Lodgian, Inc., 3445 Peachtree Road, NE, Suite
700, Atlanta, Georgia 30326 ("TRUSTOR"), to [TRUSTEE NAME], the trustee
hereunder, a resident of __________ County, __________ having an address at
____________________ ____________________ ("TRUSTEE"), for the benefit of
MERRILL LYNCH MORTGAGE LENDING, INC., a Delaware corporation, having its
principal place of business at 4 World Financial Center, New York, New York
10080 (together with its successors, transferees and assigns, "BENEFICIARY").
Capitalized terms used herein but not otherwise defined shall have the
respective meanings assigned to such terms in the Loan Agreement (hereinafter
defined).
W I T N E S S E T H:
To secure the payment of a loan (the "LOAN") in the original principal
sum of [INSERT POOL LOAN AMOUNT] ($__________), lawful money of the United
States of America, being made from Beneficiary to Trustor and the other
Borrowers (together with Trustor, "BORROWERS"), pursuant to the terms and
conditions of a certain Loan and Security Agreement, dated as of the date hereof
(as amended or modified, the "LOAN AGREEMENT"), among Borrowers and Beneficiary,
which is evidenced by and is to be paid with interest according to a certain
Promissory Note, dated as of the date hereof (as amended, modified, renewed or
restated, and together with any substitutes or replacements (by means of
multiple notes or otherwise) therefor, collectively, the "NOTE"), made by
Borrowers to Beneficiary and all other sums due hereunder, under the other Loan
Documents and under the Note (said indebtedness and interest due under the Note
and all other sums due hereunder, under the Note and the other Loan Documents
being hereinafter collectively referred to as the "DEBT"), Trustor has deeded,
given, granted, bargained, sold, alienated, enfeoffed, conveyed, confirmed,
warranted, pledged, assigned, and hypothecated and by these presents does hereby
deed, give, grant, bargain, sell, alien, enfeoff, convey, confirm, warrant,
pledge, assign and hypothecate unto Trustee (in trust), and, with respect to
personal property and personalty, unto Beneficiary, the real property described
in EXHIBIT A attached hereto (the "PREMISES") and the buildings, structures,
fixtures, additions, enlargements, extensions, modifications, repairs,
replacements and improvements now or hereafter located thereon (the
"IMPROVEMENTS");
TOGETHER WITH: all right, title, interest and estate of Trustor now
owned, or hereafter acquired, in and to the following property, rights,
interests and estates (the Premises, the Improvements, and the property, rights,
interests and estates hereinafter described are collectively referred to herein
as the "TRUST PROPERTY"):
(a) all easements, rights-of-way, strips and gores of
land, streets, ways, alleys, passages, sewer rights, water, water courses, water
rights and powers, air rights and development rights, all rights to oil, gas,
minerals, coal and other substances of any kind or character, and all estates,
rights, titles, interests, privileges, liberties, tenements, hereditaments and
appurtenances of any nature whatsoever, in any way belonging, relating or
pertaining to the Premises and the Improvements and the reversion and
reversions, remainder and remainders, and all land lying in the bed of any
street, road, highway, alley or avenue, opened, vacated or proposed, in front of
or
adjoining the Premises, to the center line thereof and all the estates, rights,
titles, interests, dower and rights of dower, curtsey and rights of curtsey,
property, possession, claim and demand whatsoever, both at law and in equity, of
Trustor of, in and to the Premises and the Improvements and every part and
parcel thereof, with the appurtenances thereto;
(b) all machinery, furniture, furnishings, equipment,
computer software and hardware, fixtures (including, without limitation, all
heating, air conditioning, plumbing, lighting, communications and elevator
fixtures, inventory and articles of personal property and accessions thereof and
renewals, replacements thereof and substitutions therefor, if any (including,
but not limited to, beds, bureaus, chiffoniers, chests, chairs, desks, lamps,
mirrors, bookcases, tables, rugs, carpeting, drapes, draperies, curtains,
shades, venetian blinds, screens, paintings, hangings, pictures, divans,
couches, luggage carts, luggage racks, stools, sofas, chinaware, linens,
pillows, blankets, glassware, foodcarts, cookware, dry cleaning facilities,
dining room wagons, tools, keys or other entry systems, bars, bar fixtures,
liquor and other drink dispensers, icemakers, radios, television sets, intercom
and paging equipment, electric and electronic equipment, dictating equipment,
private telephone systems, medical equipment, potted plants, heating, lighting
and plumbing fixtures, fire prevention and extinguishing apparatus, cooling and
air-conditioning systems, elevators, escalators, fittings, plants, apparatus,
stoves, ranges, refrigerators, laundry machines, tools, machinery, engines,
dynamos, motors, boilers, incinerators, switchboards, conduits, compressors,
vacuum cleaning systems, floor cleaning, waxing and polishing equipment, call
systems, brackets, electrical signs, bulbs, bells, ash and fuel, conveyors,
cabinets, lockers, shelving, spotlighting equipment, dishwashers, garbage
disposals, washers and dryers), other customary hotel equipment) and other
property of every kind and nature, whether tangible or intangible, whatsoever
owned by Trustor, or in which Trustor has or shall have an interest, now or
hereafter located upon the Premises and the Improvements, or appurtenant
thereto, and usable in connection with the present or future operation and
occupancy of the Premises and the Improvements and all building equipment,
materials and supplies of any nature whatsoever owned by Trustor, or in which
Trustor has or shall have an interest, now or hereafter located upon the
Premises and the Improvements, or appurtenant thereto, and usable in connection
with the present or future operation, enjoyment and occupancy of the Premises
and the Improvements (hereinafter collectively referred to as the "EQUIPMENT"),
including any leases of any of the foregoing, any deposits existing at any time
in connection with any of the foregoing, and the proceeds of any sale or
transfer of the foregoing, and the right, title and interest of Trustor in and
to any of the Equipment that may be subject to any "SECURITY INTERESTS" as
defined in the Uniform Commercial Code, as adopted and enacted by the State or
States where any of the Trust Property is located (the "UNIFORM COMMERCIAL
CODE"), superior in lien to the lien of this Deed of Trust;
(c) all awards or payments, including interest thereon,
that may heretofore and hereafter be made with respect to the Premises and the
Improvements, whether from the exercise of the right of eminent domain or
condemnation (including, without limitation, any transfer made in lieu of or in
anticipation of the exercise of said rights), or for a change of grade, or for
any other injury to or decrease in the value of the Premises and Improvements;
(d) all leases, tenancies, licenses, subleases,
assignments and/or rental or occupancy agreements and other agreements or
arrangements (including, without limitation, any and all guarantees of any of
the foregoing) heretofore or hereafter entered into affecting the use,
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enjoyment or occupancy of, or the conduct of any activity upon or in, the
Premises and the Improvements, including any extensions, renewals, modifications
or amendments thereof (collectively, the "LEASES") and all rents, rent
equivalents, moneys payable as damages or in lieu of rent or rent equivalents,
royalties (including, without limitation, all oil and gas or other mineral
royalties and bonuses), income, fees, receivables, receipts, revenues, deposits
(including, without limitation, security, utility and other deposits), accounts,
cash, issues, profits, charges for services rendered, and other payment and
consideration of whatever form or nature received by or paid to or for the
account of or benefit of Trustor or its agents or employees from any and all
sources arising from or attributable to the Premises and the Improvements,
including, without limitation, all hotel receipts, revenues and credit card
receipts collected from guest rooms, restaurants, bars (including, without
limitation, service charges for employees and staff), mini-bars, meeting rooms,
banquet rooms, apartments, parking, and recreational facilities, health club
membership fees, food and beverage wholesale and retail sales, service charges,
convention services, special events, audio-visual services, boat cruises, travel
agency fees, telephone charges, laundry services, vending machines and
otherwise, all receivables, customer obligations, installment payment
obligations and other obligations now existing or hereafter arising or created
out of the sale, lease, sublease, license, concession or other grant of the
right of the possession, use and occupancy of all or any portion of the Premises
and the Improvements or personalty located thereon, or rendering of services by
Trustor or any operator or manager of the hotel or the commercial space located
in the Improvements or acquired from others (including, without limitation, from
the rental of any office space, retail space, guest rooms or other space, halls,
stores, and offices, and deposits securing reservations of such space, and
charges for services such as room service, telecommunication and video,
electronic mail, internet connection and other communications and entertainment
services), license, lease, sublease and concession fees and rentals, and
proceeds, if any, from business interruption or other loss of income insurance
and any other items of revenue which would be included in operating revenues
under the Uniform System (as defined in the Loan Agreement) (the "RENTS"),
together with all proceeds from the sale or other disposition of the Leases and
the right to receive and apply the Rents to the payment of the Debt;
(e) all proceeds of and any unearned premiums on any
insurance policies covering the Trust Property, including, without limitation,
the right to receive and apply the proceeds of any insurance, judgments, or
settlements made in lieu thereof, for damage to the Trust Property;
(f) all accounts, escrows, documents, instruments,
chattel paper, claims, deposits and general intangibles, as the foregoing terms
are defined in the Uniform Commercial Code, and all franchises, trade names
(including, without limitation, the right to operate the Trust Property under
the name and/or hotel system known as [HOTEL BRAND]), trademarks, symbols,
service marks, books, records, plans, specifications, designs, drawings,
permits, consents, licenses, management agreements (including, without
limitation, the Management Agreement), franchise agreements, contract rights
(including, without limitation, any contract with any architect or engineer or
with any other provider of goods or services for or in connection with any
construction, repair, or other work upon the Trust Property), approvals,
actions, refunds of real estate taxes and assessments (and any other
governmental impositions related to the Trust Property), and causes of action
that now or hereafter relate to, are derived from or are used in connection with
the Trust Property, or the use, operation, maintenance,
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occupancy or enjoyment thereof or the conduct of any business or activities
thereon (hereinafter collectively referred to as the "INTANGIBLES"); and
(g) any and all proceeds, products, offspring, rents and
profits from any of the foregoing, including, without limitation, those from
sale, exchange, transfer, collection, loss, damage, disposition, substitution or
replacement of any of the foregoing and any and all other security and
collateral of any nature whatsoever, now or hereafter given for the repayment of
the Debt and the performance of Trustor's obligations under the Loan Documents
including, without limitation, the Impositions and Insurance Reserve, the FF&E
Reserve, the Loss Proceeds, the Deposit Account, the Lock Box Account and the
Sub-Accounts thereof (each as defined in that certain Cash Management Agreement,
dated as of the date hereof (as amended or modified the "CASH MANAGEMENT
AGREEMENT"), by and among Borrowers, Beneficiary, Lodgian Management Corp. and
Wachovia Bank, National Association), and any other escrows or reserves set
forth in the Loan Documents.
TO HAVE AND TO HOLD the above granted and described Trust Property unto
and to the use and benefit of Trustee and its successors and assigns, for the
benefit of Beneficiary, forever;
IN TRUST, WITH POWER OF SALE, to secure the payment to Beneficiary of
the Debt at the time and in the manner provided for its payment in the Note and
in this Deed of Trust;
PROVIDED, HOWEVER, these presents are upon the express condition that,
if Trustor shall well and truly pay to Beneficiary the Debt at the time and in
the manner provided in the Note and this Deed of Trust and shall well and truly
abide by and comply with each and every covenant and condition set forth herein,
in the Note and in the other Loan Documents in a timely manner, these presents
and the estate hereby granted shall cease, terminate and be void;
AND Trustor represents and warrants to and covenants and agrees with
Beneficiary and Trustee as follows:
PART I
GENERAL PROVISIONS
1. PAYMENT OF DEBT AND INCORPORATION OF COVENANTS, CONDITIONS AND
AGREEMENTS. Trustor shall pay the Debt at the time and in the manner provided in
the Note, in the Loan Agreement and in this Deed of Trust. All the covenants,
conditions and agreements contained in (a) the Note, (b) the Loan Agreement and
(c) the other Loan Documents are hereby made a part of this Deed of Trust to the
same extent and with the same force as if fully set forth herein.
2. WARRANTY OF TITLE. Trustor warrants that Trustor has good and
marketable title to the Trust Property and has the full power, authority and
right to execute, deliver and perform its obligations under this Deed of Trust
and to deed, encumber, mortgage, give, grant, bargain, sell, alienate, enfeoff,
convey, confirm, pledge, assign and hypothecate the same and that Trustor
possesses a fee estate in the Premises and the Improvements and that it owns the
Trust Property
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free and clear of all liens, encumbrances and charges whatsoever except for the
Permitted Encumbrances and that this Deed of Trust is and will remain a valid
and enforceable first lien on and security interest in the Trust Property,
subject only to said exceptions. Trustor represents and warrants that none of
the Permitted Encumbrances will, individually or in the aggregate, materially
and adversely affect (i) Trustor's ability to pay in full in a timely manner its
obligations, including, without limitation, the Debt, (ii) the use of the Trust
Property for the use currently being made thereof, (iii) the operation of the
Trust Property for the operation currently being made thereof, or (iv) the value
of the Trust Property. Trustor shall forever warrant, defend and preserve such
title and the validity and priority of the lien of this Deed of Trust and shall
forever warrant and defend the same to Beneficiary against the claims of all
persons whomsoever.
3. INSURANCE. Trustor, at its sole cost and expense, shall obtain
and maintain during the entire term of this Deed of Trust (the "TERM") policies
of insurance as required pursuant to Section 5.4 of the Loan Agreement, and pay
all premiums thereon (the "INSURANCE PREMIUMS").
4. PAYMENT OF IMPOSITIONS AND OTHER CHARGES. Subject to Trustor's
right to contest set forth in Section 5.3(B) of the Loan Agreement and the
provisions of Section 5 below, and pursuant to the provisions of the Cash
Management Agreement, Trustor shall cause to be paid all Impositions now or
hereafter levied or assessed or imposed against the Trust Property or any part
thereof prior to the date the same shall become delinquent. Trustor shall
promptly pay for all utility services provided to the Trust Property. Trustor
shall furnish to Beneficiary or its designee receipts for the payment of the
Impositions prior to the date the same shall become delinquent (provided,
however, that Trustor shall not be required to furnish such receipts for payment
of Impositions in the event that such Impositions have been paid by Beneficiary
pursuant to Section 5 hereof).
5. IMPOSITIONS AND INSURANCE RESERVE. Trustor shall make monthly
deposits into the Impositions and Insurance Reserve in accordance with, and to
the extent required under Section 6.3 of the Loan Agreement and under the Cash
Management Agreement.
6. CONDEMNATION. To the extent the terms of this Section 6 are
inconsistent with the terms of the Loan Agreement, the terms of the Loan
Agreement shall control.
(a) Trustor shall promptly give Beneficiary written
notice of any known actual or threatened commencement of any condemnation or
eminent domain proceeding affecting the Trust Property or any portion thereof
and shall deliver to Beneficiary copies of any and all papers served in
connection with such proceedings. Subject to the terms of Section 6(b) below,
Beneficiary is hereby irrevocably appointed as Trustor's attorney-in-fact,
coupled with an interest, with exclusive power to collect, receive and retain
any award or payment for said condemnation or eminent domain and to make any
compromise or settlement in connection with such proceeding, subject to the
provisions of this Deed of Trust and the Loan Agreement. Notwithstanding any
taking by any public or quasi public authority through eminent domain or
otherwise (including but not limited to any transfer made in lieu of or in
anticipation of the exercise of such taking), Trustor shall continue to pay the
Debt at the time and in the manner provided for its payment in the Note, in this
Deed of Trust and the other Loan Documents and the Debt shall not be reduced
until any award or payment therefor shall have been actually
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received after expenses of collection and applied by Beneficiary to the
discharge of the Debt in accordance with the terms hereof. In accordance with
the terms hereof, Trustor shall cause the award or payment made in any
condemnation or eminent domain proceeding completed after the date hereof, which
is payable to Trustor, to be paid directly to Beneficiary. Beneficiary may apply
any such award or payment to the reduction or discharge of the Debt whether or
not then due and payable; such application to be made without any Prepayment
Consideration (as defined in the Loan Agreement), provided that if Trustor
receives any such award or payment, Trustor pays such award or payment to
Trustee within one hundred twenty (120) days following the date of Trustor's
receipt thereof, except that if an Event of Default has occurred and is
continuing, then such application shall be subject to the Prepayment
Consideration computed in accordance with the Note. If the Trust Property is
sold following an Event of Default, through foreclosure or otherwise, prior to
the receipt by Beneficiary of such award or payment, Beneficiary shall have the
right, whether or not a deficiency judgment on the Note shall have been sought,
recovered or denied, to receive said award or payment, or a portion thereof
sufficient to pay the Debt.
(b) Notwithstanding the foregoing, Beneficiary shall not
exercise the foregoing rights and Trustor may prosecute any condemnation
proceeding and settle or compromise and collect any claim involving an award
and/or claim for damages of not more than the Restoration Threshold provided
that: (i) no Event of Default shall have occurred and be continuing, (ii) in
Beneficiary's reasonable good faith judgment, such condemnation or taking does
not and will not materially restrict access to the Trust Property or otherwise
have a Material Adverse Effect, and the Trust Property remaining after such
condemnation or taking is capable of being restored to an economically viable
whole substantially of the same type which existed prior to the condemnation or
taking or in substantial compliance with all applicable laws, (iii) Trustor
applies the proceeds of such award to any reconstruction or repair of the Trust
Property necessary as a result of such condemnation or taking, (iv) Trustor
promptly commences and diligently prosecutes such reconstruction or repair to
completion in accordance with all applicable laws and (v) the plans and
specifications for such work shall be subject to Beneficiary's reasonable
approval. Subject to the terms hereof, Trustor authorizes Beneficiary to apply
such awards, payments, proceeds or damages, after the deduction of Beneficiary's
reasonable expenses incurred in the collection of such amounts, at Beneficiary's
option, to restoration or repair of the Trust Property or to payment of the sums
secured by this Deed of Trust, whether or not then due in the order determined
by Beneficiary, with the balance, if any, to Trustor. Application of any such
award or payment to payment of the sums secured by this Deed of Trust pursuant
to the foregoing sentence shall be made without any Prepayment Consideration,
provided that if Trustor receives any such award or payment, Trustor pays such
award or payment to Trustee within one hundred twenty (120) days following
Trustor's receipt thereof, except that if an Event of Default has occurred and
is continuing, then such application shall be subject to the Prepayment
Consideration computed in accordance with the Note. Subject to the provisions of
clauses (i) through (v) of this Section 6(b), Beneficiary shall not exercise
Beneficiary's option to apply such awards or damages to payment of the sums
secured by this Deed of Trust provided that each of the conditions (as
applicable) to the release of insurance proceeds for restoration or repair of
the Trust Property under Section 5.5 of the Loan Agreement have been satisfied
with respect to such condemnation awards or damages. Any application of proceeds
to principal shall not extend or postpone the due date of the monthly
installments due hereunder, under the Note or under any of the Loan Documents or
change the amount of such installments. Trustor agrees to execute such further
evidence of assignment of any awards,
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proceeds, damages or claims arising in connection with such condemnation or
taking as Beneficiary may reasonably require.
7. LEASES AND RENTS. To the extent the terms of this Section 7
are inconsistent with the terms of the Loan Agreement or the Assignment of
Leases and Rents, the terms of the Loan Agreement and the Assignment of Leases
and Rents shall control. Trustor does hereby absolutely and unconditionally
assign to Beneficiary, all Trustor's right, title and interest in all current
and future Leases and Rents, it being intended by Trustor that this assignment
constitutes a present, absolute assignment and not an assignment for additional
security only. Such assignment to Beneficiary shall not be construed to bind
Beneficiary to the performance of any of the covenants, conditions or provisions
contained in any such Lease or otherwise impose any obligation upon Beneficiary.
Trustor agrees to execute and deliver to Beneficiary such additional
instruments, in form and substance reasonably satisfactory to Beneficiary, as
may hereafter be reasonably requested by Beneficiary to further evidence and
confirm such assignment. Notwithstanding the provisions of this Section 7, so
long as no Event of Default shall have occurred and be continuing under the Loan
Documents, Trustor shall have the sole but revocable right and license to act as
landlord under the Leases and to enforce the covenants of the Leases, provided,
however, Trustor acknowledges it has no right to collect or use Rents except in
accordance with the terms and conditions of Article VII of the Loan Agreement
and the Cash Management Agreement. Upon the occurrence and during the
continuance of an Event of Default, without the need for notice or demand, the
license granted to Trustor herein shall automatically be revoked. Beneficiary
and Trustee are hereby granted and assigned by Trustor the right, at its option,
upon revocation of the license granted herein, to enter upon the Trust Property
in person, by agent or by court-appointed receiver to collect the Rents. Subject
to the terms of the Loan Agreement, any Rents collected after the revocation of
the license shall be applied by Beneficiary in accordance with the Loan
Agreement. Trustor expressly understands that any and all proposed leases are
included in the definition of "LEASE" or "LEASES" as such terms may be used
throughout this Deed of Trust, the Note and the other Loan Documents.
8. OPERATION AND MAINTENANCE OF TRUST PROPERTY. Trustor shall
cause the Trust Property to be operated and maintained in accordance with
Section 5.5 of the Loan Agreement.
9. TRANSFER OR ENCUMBRANCE OF THE TRUST PROPERTY.
(a) Trustor acknowledges that Beneficiary has examined
and relied on the creditworthiness and experience of Trustor in owning and
operating properties such as the Trust Property in agreeing to make the Loan,
and that Beneficiary will continue to rely on Trustor's ownership of the Trust
Property as a means of maintaining the value of the Trust Property as security
for repayment of the Debt. Trustor acknowledges that Beneficiary has a valid
interest in maintaining the value of the Trust Property so as to ensure that,
should Trustor default in the repayment of the Debt, Beneficiary can recover the
Debt by a sale of the Trust Property. Except as expressly permitted under this
Deed of Trust, the Loan Agreement or under the other Loan Documents, Trustor
shall not cause or suffer to occur or exist, directly or indirectly, voluntarily
or involuntarily, by operation of law or otherwise, any sale, transfer,
mortgage, pledge, lien or encumbrance (other than Permitted Encumbrances)
(collectively, "TRANSFERS") of (i) all or any part of the Trust Property or (ii)
any direct or indirect beneficial ownership interest (in whole or
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part) in Trustor, irrespective of the number of tiers of ownership, without the
prior written consent of Beneficiary.
(b) The occurrence of any Transfer in violation of this
Section 9 shall constitute an Event of Default hereunder, whereupon Beneficiary
at its option, without being required to demonstrate any actual impairment of
its security or any increased risk of default hereunder, may declare the Debt
immediately due and payable.
(c) Beneficiary's consent to one Transfer shall not be
deemed to be a waiver of Beneficiary's right to require such consent to any
future occurrence of same. Any Transfer made in contravention of this paragraph
shall be null and void and of no force and effect.
(d) Trustor agrees to bear and shall pay or reimburse
Beneficiary on demand for all reasonable expenses (including, without
limitation, reasonable attorneys' fees and disbursements. title search costs and
title insurance endorsement premiums) incurred by Beneficiary in connection with
the review, approval and documentation of any such Transfer which requires the
consent of Lender.
10. CHANGES IN LAWS REGARDING TAXATION. If any law is enacted or
adopted or amended after the date of this Deed of Trust which deducts the Debt
from the value of the Trust Property for the purpose of taxation or which
imposes a tax, either directly or indirectly, on the Debt or Beneficiary's
interest in the Trust Property, Trustor will pay such tax, with interest and
penalties thereon, if any. In the event Beneficiary is advised by counsel chosen
by it that the payment of such tax or interest and penalties by Trustor would be
unlawful or taxable to Beneficiary or unenforceable or provide the basis for a
defense of usury, then in any such event, Beneficiary shall have the option, by
written notice of not less than ninety (90) days, to declare the Debt
immediately due and payable and, provided no Event of Default exists, no
Prepayment Consideration shall be due in connection therewith.
11. NO CREDITS ON ACCOUNT OF THE DEBT. Trustor will not claim or
demand or be entitled to any credit or credits on account of the Debt for any
part of the Taxes or Other Charges assessed against the Trust Property, or any
part thereof, and no deduction shall otherwise be made or claimed from the
assessed value of the Trust Property, or any part thereof, for real estate tax
purposes by reason of this Deed of Trust or the Debt. In the event such claim,
credit or deduction shall be required by law, Beneficiary shall have the option,
by written notice of not less than ninety (90) days, to declare the Debt
immediately due and payable and, provided no Event of Default exists, no
Prepayment Consideration shall be due in connection therewith.
12. DOCUMENTARY STAMPS. If at any time the United States of
America, any State thereof or any subdivision of any such State shall require
revenue or other stamps to be affixed to the Note or this Deed of Trust, or
impose any other tax or charge on the same, Trustor will pay for the same, with
interest and penalties thereon, if any.
13. PERFORMANCE OF OTHER AGREEMENTS. Trustor shall observe and
perform each and every material term to be observed or performed by Trustor
pursuant to the terms of any agreement or recorded instrument (including all
instruments comprising the Permitted Encumbrances) affecting or pertaining to
the Trust Property, and will not suffer or permit any
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default or event of default (after giving effect to any applicable notice
requirements and cure periods) to exist under any of the foregoing.
14. FURTHER ACTS; SECONDARY MARKET TRANSACTIONS.
(a) Trustor will, at the sole cost and expense of
Trustor, and without expense to Beneficiary, do, execute, acknowledge and
deliver all and every such further acts, deeds, conveyances, mortgages,
assignments, notices of assignment, Uniform Commercial Code financing statements
reasonably or continuation statements, transfers and assurances as Beneficiary
shall, from time to time, reasonably require, for the better assuring,
conveying, assigning, transferring, and confirming unto Beneficiary the property
and rights hereby deeded, mortgaged, given, granted, bargained, sold, alienated,
enfeoffed, conveyed, confirmed, pledged, assigned and hypothecated or intended
now or hereafter so to be, or which Trustor may be or may hereafter become bound
to convey or assign to Beneficiary, or for carrying out the intention or
facilitating the performance of the terms of this Deed of Trust or for filing,
registering or recording this Deed of Trust or for facilitating the sale of the
Loan and the Loan Documents as described in subparagraph (b) below. Trustor, on
demand, will deliver and hereby authorizes Beneficiary to file in the name of
Trustor, one or more financing statements, chattel mortgages or other
instruments, to evidence more effectively the security interest of Beneficiary
in the Trust Property. Upon foreclosure or the appointment of a receiver,
Trustor will, at its sole cost and expense, and without expense to Beneficiary,
cooperate fully and completely to effect the assignment or transfer of any
license, permit, agreement or any other right necessary or useful to the
operation of the Trust Property. Trustor grants to Beneficiary and Trustee an
irrevocable power of attorney coupled with an interest for the purpose of
exercising and perfecting any and all rights and remedies available to
Beneficiary and Trustee at law and in equity, including, without limitation,
such rights and remedies available to Beneficiary and Trustee pursuant to this
paragraph.
(b) Subject to the terms and conditions set forth in the
Loan Agreement, Beneficiary shall have the right to engage in one or more
Secondary Market Transactions (as defined in the Loan Agreement) and, in
connection therewith, Beneficiary may transfer its obligations under this Deed
of Trust, the Loan Agreement and under the other Loan Documents (or may transfer
the portion thereof corresponding to the transferred portion of the Debt), and
thereafter Beneficiary shall be relieved of any obligations hereunder and under
the other Loan Documents arising after the date of said transfer with respect to
the transferred interest.
15. RECORDING OF DEED OF TRUST, ETC. Trustor forthwith upon the
execution and delivery of this Deed of Trust and thereafter, from time to time,
will cause this Deed of Trust, and any security instrument creating a lien or
security interest or evidencing the lien hereof upon the Trust Property and each
instrument of further assurance to be filed, registered or recorded in such
manner and in such places as may be required by any present or future law in
order to publish notice of and fully to protect the lien or security interest
hereof upon, and the interest of Beneficiary in, the Trust Property. Trustor
will pay all filing, registration or recording fees, and all expenses incident
to the preparation, execution and acknowledgment of this Deed of Trust, any deed
of trust supplemental hereto, any security instrument with respect to the Trust
Property and any instrument of further assurance, and all federal, state, county
and municipal, taxes, duties, imposts, assessments and charges arising out of or
in connection with the execution and
9
delivery of this Deed of Trust, any deed of trust supplemental hereto, any
security instrument with respect to the Trust Property or any instrument of
further assurance, except where prohibited by law so to do. Trustor shall hold
harmless and indemnify Beneficiary, its successors and assigns, against any
liability incurred by reason of the imposition of any tax on the making and
recording of this Deed of Trust.
16. REPORTING REQUIREMENTS. Trustor agrees to give prompt notice
to Beneficiary of the insolvency or bankruptcy filing of Trustor or the death,
insolvency or bankruptcy filing of any Guarantor.
17. EVENTS OF DEFAULT. The Debt shall become immediately due and
payable at the option of Beneficiary upon the happening of any Event of Default.
The term "EVENT OF DEFAULT" as used in this Deed of Trust shall have the meaning
given such term in the Loan Agreement.
18. RIGHT TO CURE DEFAULTS. Upon the occurrence and during the
continuance of any Event of Default, Beneficiary may, but without any obligation
to do so and without notice to or demand on Trustor and without releasing
Trustor from any obligation hereunder, make or do the same in such manner and to
such extent as Beneficiary may deem necessary to protect the security hereof.
Beneficiary is authorized to enter upon the Trust Property for such purposes or
appear in, defend, or bring any action or proceeding to protect its interest in
the Trust Property or to foreclose this Deed of Trust or collect the Debt, and
the cost and expense thereof (including reasonable attorneys' fees and
disbursements to the extent permitted by law), with interest at the Default Rate
(as defined in the Loan Agreement) for the period after notice from Beneficiary
that such cost or expense was incurred to the date of payment to Beneficiary,
shall constitute a portion of the Debt, shall be secured by this Deed of Trust
and the other Loan Documents and shall be due and payable to Beneficiary upon
demand.
19. REMEDIES.
(a) Upon the occurrence and during the continuance of any
Event of Default, Beneficiary or Trustee may take such action, without notice or
demand, as it deems advisable to protect and enforce its rights against Trustor
and in and to the Trust Property by Beneficiary itself or through Trustee or
otherwise, including, without limitation, the following actions, each of which
may be pursued concurrently or otherwise, at such time and in such order as
Beneficiary may determine, in its sole discretion, without impairing or
otherwise affecting the other rights and remedies of Beneficiary:
(i) declare the entire Debt to be immediately
due and payable;
(ii) institute a proceeding or proceedings,
judicial or nonjudicial, by advertisement or otherwise, for the complete
foreclosure of this Deed of Trust in which case the Trust Property or any
interest therein may be sold for cash or upon credit in one or more parcels or
in several interests or portions and in any order or manner;
(iii) with or without entry, to the extent
permitted and pursuant to the procedures provided by applicable law, institute
proceedings for the partial foreclosure of this Deed of Trust for the portion of
the Debt then due and payable, subject to the continuing lien of this Deed of
Trust for the balance of the Debt not then due;
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(iv) sell for cash or upon credit the Trust
Property or any part thereof and all estate, claim, demand, right, title and
interest of Trustor therein and rights of redemption thereof, pursuant to the
power of sale contained herein or otherwise, at one or more sales, as an
entirety or in parcels, at such time and place, upon such terms and after such
notice thereof as may be required or permitted by law;
(v) institute an action, suit or proceeding in
equity for the specific performance of any covenant, condition or agreement
contained herein, or in any of the other Loan Documents;
(vi) recover judgment on the Note either before,
during or after any proceedings for the enforcement of this Deed of Trust;
(vii) apply for the appointment of a trustee,
receiver, liquidator or conservator of the Trust Property, to the extent
permitted by applicable law, without notice and without regard for the adequacy
of the security for the Debt and without regard for the solvency of the Trustor,
any Guarantor or of any person, firm or other entity liable for the payment of
the Debt;
(viii) enforce Beneficiary's interest in the Leases
and Rents and enter into or upon the Trust Property, either personally or by its
agents, nominees or attorneys and dispossess Trustor and its agents and servants
therefrom, and thereupon Beneficiary may (A) use, operate, manage, control,
insure, maintain, repair, restore and otherwise deal with all and every part of
the Trust Property and conduct the business thereat; (B) complete any
construction on the Trust Property in such manner and form as Beneficiary deems
advisable; (C) make alterations, additions, renewals, replacements and
improvements to or on the Trust Property; (D) exercise all rights and powers of
Trustor with respect to the Trust Property, whether in the name of Trustor or
otherwise, including, without limitation, the right to make, cancel, enforce or
modify Leases, obtain and evict tenants, and demand, sue for, collect and
receive all Rents; and (E) apply the receipts from the Trust Property to the
payment of Debt, after deducting therefrom all expenses (including reasonable
attorneys' fees and disbursements) incurred in connection with the aforesaid
operations and all amounts necessary to pay the taxes, assessments insurance and
other charges in connection with the Trust Property, as well as just and
reasonable compensation for the services of Beneficiary, its counsel, agents and
employees; or
(ix) pursue such other rights and remedies as may
be available at law or in equity or under the Uniform Commercial Code.
In the event of a sale, by foreclosure or otherwise, of less than all of the
Trust Property, this Deed of Trust shall continue as a lien on the remaining
portion of the Trust Property.
(b) The proceeds of any sale made under or by virtue of
this paragraph, together with any other sums which then may be held by
Beneficiary under this Deed of Trust, whether under the provisions of this
paragraph or otherwise, shall be applied by Beneficiary to the payment of the
Debt in such priority and proportion as Beneficiary in its sole discretion shall
deem proper.
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(c) Beneficiary or Trustee may adjourn from time to time
any sale by it to be made under or by virtue of this Deed of Trust 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, Beneficiary or Trustee, without further notice or publication, may make
such sale at the time and place to which the same shall be so adjourned.
(d) Upon the completion of any sale or sales pursuant
hereto, Trustee, Beneficiary, 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 good and sufficient instruments, conveying, assigning
and transferring all estate, right, title and interest in and to the property
and rights sold. Any sale or sales made under or by virtue of this paragraph,
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 Trustor in and to the properties and
rights so sold, and shall be a perpetual bar both at law and in equity against
Trustor and against any and all persons claiming or who may claim the same, or
any part thereof from, through or under Trustor.
(e) Upon any sale made under or by virtue of this
paragraph, 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 Trust Property or any part thereof
and in lieu of paying cash therefor may make settlement for the purchase price
by crediting upon the Debt the net sales price after deducting therefrom the
expenses of the sale and costs of the action and any other sums which
Beneficiary is authorized to deduct under this Deed of Trust.
(f) No recovery of any judgment by Beneficiary and no
levy of an execution under any judgment upon the Trust Property or upon any
other property of Trustor shall affect in any manner or to any extent the lien
of this Deed of Trust upon the Trust Property or any part thereof, or any liens,
rights, powers or remedies of Beneficiary hereunder, but such liens, rights,
powers and remedies of Beneficiary shall continue unimpaired as before.
(g) Beneficiary may terminate or rescind any proceeding
or other action brought in connection with its exercise of the remedies provided
in this paragraph at any time before the conclusion thereof, as determined in
Beneficiary's sole discretion and without prejudice to Beneficiary.
(h) Beneficiary or Trustee may resort to any remedies and
the security given by the Note, this Deed of Trust or the other Loan Documents
in whole or in part, and in such portions and in such order as determined in
Beneficiary's sole discretion. No such action shall in any way be considered a
waiver of any rights, benefits or remedies evidenced or provided by the Note,
this Deed of Trust or any of the other Loan Documents. The failure of
Beneficiary or Trustee to exercise any right, remedy or option provided in the
Note, this Deed of Trust or any of the other Loan Documents shall not be deemed
a waiver of such right, remedy or option or of any covenant or obligation
secured by the Note, this Deed of Trust or the other Loan Documents. No
acceptance by Beneficiary of any payment after the occurrence of any Event of
Default and no payment by Beneficiary of any obligation for which Trustor is
liable hereunder shall be
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deemed to waive or cure any Event of Default with respect to Trustor, or
Trustor's liability to pay such obligation. No sale of all or any portion of the
Trust Property, no forbearance on the part of Beneficiary or Trustee, and no
extension of time for the payment of the whole or any portion of the Debt or any
other indulgence given by Beneficiary or Trustee to Trustor, shall operate to
release or in any manner affect the interest of Beneficiary in the remaining
Trust Property or the liability of Trustor to pay the Debt. No waiver by
Beneficiary or Trustee shall be effective unless it is in writing and then only
to the extent specifically stated. All reasonable costs and expenses of
Beneficiary in exercising its rights and remedies under this paragraph
(including reasonable attorneys' fees and disbursements to the extent permitted
by law), shall be paid by Trustor immediately upon notice from Beneficiary or
Trustee, with interest at the Default Rate for the period after notice from
Beneficiary or Trustee and such costs and expenses shall constitute a portion of
the Debt and shall be secured by this Deed of Trust.
(i) The interests and rights of Beneficiary under the
Note, this Deed of Trust or in any of the other Loan Documents shall not be
impaired by any indulgence, including (i) any renewal, extension or modification
which Beneficiary may grant with respect to any of the Debt, (ii) any surrender,
compromise, release, renewal, extension, exchange or substitution which
Beneficiary may grant with respect to the Trust Property or any portion thereof;
or (iii) any release or indulgence granted to any maker, endorser, Guarantor or
surety of any of the Debt.
20. RIGHT OF ENTRY. In addition to any other rights or remedies
granted under this Deed of Trust, Beneficiary, Trustee and their agents shall
have the right to enter and inspect the Trust Property at any reasonable time
during the Term. The reasonable cost of such inspections or audits shall be
borne by Trustor should Beneficiary determine that an Event of Default exists,
including the cost of all follow up or additional investigations or inquiries
deemed reasonably necessary by Beneficiary. The reasonable cost of such
inspections, if not paid for by Trustor within ten (10) Business Days of demand
therefor, may be added to the principal balance of the sums due under the Note
and this Deed of Trust and shall bear interest thereafter until paid at the
Default Rate.
21. SECURITY AGREEMENT. This Deed of Trust is both a real property
deed of trust and a "SECURITY AGREEMENT" within the meaning of the Uniform
Commercial Code. The Trust Property includes both real and personal property and
all other rights and interests, whether tangible or intangible in nature, of
Trustor in the Trust Property. Trustor by executing and delivering this Deed of
Trust has granted and hereby grants to Beneficiary and Trustee, as security for
the Debt, a security interest in the Trust Property to the full extent that the
Trust Property may be subject to the Uniform Commercial Code (said portion of
the Trust Property so subject to the Uniform Commercial Code being called in
this paragraph the "COLLATERAL"). Trustor hereby agrees with Beneficiary to
execute and deliver to Beneficiary, in form and substance reasonably
satisfactory to Beneficiary, such financing statements and such further
assurances as Beneficiary may from time to time, reasonably consider necessary
to create, perfect, and preserve Beneficiary's security interest herein granted.
This Deed of Trust shall also constitute a "fixture filing" for the purposes of
the Uniform Commercial Code as to all or any items of the Collateral that are or
are to become fixtures under the Uniform Commercial Code. Information concerning
the security interest herein granted may be obtained from the parties at the
addresses of the parties set forth in the first paragraph of this Deed of Trust.
If an Event of Default shall occur, Beneficiary and Trustee, in addition to any
other rights and remedies which
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either may have, shall have and may exercise immediately and without demand, any
and all rights and remedies granted to a secured party upon default under the
Uniform Commercial Code, including, without limiting the generality of the
foregoing, the right to take possession of the Collateral or any part thereof,
and to take such other measures as Beneficiary or Trustee may deem necessary for
the care, protection and preservation of the Collateral. Upon request or demand
of Beneficiary or Trustee after the occurrence and during the continuance of an
Event of Default, Trustor shall at its expense assemble the Collateral and make
it available to Beneficiary and Trustee at a convenient place reasonably
acceptable to Beneficiary. Trustor shall pay to Beneficiary and Trustee within
ten (10) Business Days of demand therefor any and all expenses, including
reasonable attorneys' fees and disbursements, incurred or paid by Beneficiary
and Trustee in protecting the interest in the Collateral and in enforcing the
rights hereunder with respect to the Collateral. Any notice of sale, disposition
or other intended action by Beneficiary and Trustee with respect to the
Collateral sent to Trustor in accordance with the provisions hereof at least ten
(10) Business Days prior to such action, shall constitute commercially
reasonable notice to Trustor. The proceeds of any disposition of the Collateral,
or any part thereof, may be applied by Beneficiary to the payment of the Debt in
such priority and proportions as Beneficiary in its sole discretion shall deem
proper. In the event of any change in name, identity or structure of any
Trustor, such Trustor shall notify Beneficiary and Trustee thereof and promptly
after Beneficiary's request shall execute, file and record such Uniform
Commercial Code forms as are necessary to maintain the priority of Beneficiary's
lien upon and security interest in the Collateral, and shall pay all reasonable
expenses and fees in connection with the filing and recording thereof. If
Beneficiary shall require the filing or recording of additional Uniform
Commercial Code forms or continuation statements, Trustor shall, promptly after
request, execute, file and record such Uniform Commercial Code forms or
continuation statements as Beneficiary shall deem reasonably necessary, and
shall pay all reasonable expenses and fees in connection with the filing and
recording thereof, it being understood and agreed, however, that no such
additional documents shall increase Trustor's obligations or decrease Trustor's
rights under the Note, this Deed of Trust and any of the other Loan Documents.
Trustor hereby irrevocably appoints Beneficiary as its attorney-in-fact, coupled
with an interest, to file with the appropriate public office on its behalf any
financing or other statements signed only by Beneficiary, as secured party, in
connection with the Collateral covered by this Deed of Trust.
22. ACTIONS AND PROCEEDINGS. Beneficiary or Trustee has the right
to appear in and defend any action or proceeding brought with respect to the
Trust Property and to bring any action or proceeding, in the name and on behalf
of Trustor, which Beneficiary, in its reasonable discretion, decides should be
brought to protect their interest in the Trust Property. Beneficiary shall, at
its option, be subrogated to the lien of any deed of trust or other security
instrument discharged in whole or in part by the Debt, and any such subrogation
rights shall constitute additional security for the payment of the Debt.
23. RECOVERY OF SUMS REQUIRED TO BE PAID. Beneficiary shall have
the right from time to time to take action to recover any sum or sums which
constitute a part of the Debt as the same become due, without regard to whether
or not the balance of the Debt shall be due, and without prejudice to the right
of Beneficiary or Trustee thereafter to bring an action of foreclosure, or any
other action, for a default or defaults by Trustor existing at the time such
earlier action was commenced.
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24. MARSHALLING AND OTHER MATTERS. Trustor hereby waives, to the
extent permitted by law, the benefit of all appraisement, valuation, stay,
extension, reinstatement and redemption laws now or hereafter in force and all
rights of marshalling in the event of any sale hereunder of the Trust Property
or any part thereof or any interest therein. Further, Trustor hereby expressly
waives any and all rights of redemption from sale under any order or decree of
foreclosure of this Deed of Trust on behalf of Trustor, and on behalf of each
and every person acquiring any interest in or title to the Trust Property
subsequent to the date of this Deed of Trust and on behalf of all persons to the
extent permitted by applicable law. Beneficiary shall not be under any
obligation to marshal any assets in favor of any Person or in payment of any of
the Debt.
25. HANDICAPPED ACCESS.
(a) Trustor agrees that the Trust Property shall at all
times comply, with the requirements of the Americans with Disabilities Act of
1990, the Fair Housing Amendments Act of 1988, if applicable, all state and
local laws and ordinances related to handicapped access and all rules,
regulations, and orders issued pursuant thereto including, without limitation,
the Americans with Disabilities Act Accessibility Guidelines for Buildings and
Facilities (collectively "ACCESS LAWS").
(b) Without limiting the foregoing, Trustor shall cause
any alterations to the Trust Property to comply with all applicable Access Laws.
The foregoing shall apply to tenant improvements constructed by Trustor or by
any of its tenants. Beneficiary may condition any such approval upon receipt of
a certificate of Access Law compliance from an architect, engineer, or other
person acceptable to Beneficiary.
(c) Trustor agrees to give prompt notice to Beneficiary
of the receipt by Trustor of any material complaints related to violation of any
Access Laws and of the commencement of any proceedings or investigations which
relate to compliance with applicable Access Laws.
26. INDEMNIFICATION. In addition to any other indemnifications
provided herein or in the other Loan Documents, Trustor shall protect, defend,
indemnify and save harmless Beneficiary and Trustee and their respective
successors and assigns (including, without limitation, the trustee and/or the
trust under any trust agreement executed in connection with any Secondary Market
Transaction backed in whole or in part by the Loan and any other person which
may hereafter be the holder of the Note or any interest therein), and the
officers, directors, stockholders, partners, members, employees, agents, and
Affiliates of Beneficiary and such successors and assigns (each an "INDEMNIFIED
PARTY") from and against all liabilities, obligations, claims, demands, damages,
penalties, causes of action, losses, fines, costs and expenses (including,
without limitation, reasonable attorneys' fees and disbursements), imposed upon
or incurred by or asserted against any Indemnified Party by reason of: (a)
ownership of this Deed of Trust, the Trust Property or any interest therein or
receipt of any Rents; (b) any accident, injury to or death of persons or loss of
or damage to property occurring in, on or about the Trust Property or any part
thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent
parking areas, streets or ways; (c) any use, nonuse or condition in, on or about
the Trust Property or any part thereof or on adjoining sidewalks, curbs,
adjacent property or adjacent parking areas, streets or ways; (d) any failure on
the part of Trustor or Trustee to perform or comply with any of
15
the terms of this Deed of Trust; (e) performance of any labor or services or the
furnishing of any materials or other property in respect of the Trust Property
or any part thereof; (f) any failure of the Premises or the Improvements to
comply with any applicable law, statute, code, ordinance, rule or regulation
including, without limitation, any Access Laws; (g) any default by Trustor under
this Deed of Trust, the Loan Agreement or any of the other Loan Documents; (h)
any actions taken by any Indemnified Party in the enforcement of this Deed of
Trust and other Loan Documents in accordance with their respective terms; (i)
any representation or warranty made in the Note, this Deed of Trust or any of
the other Loan Documents being false or misleading in any material respect as of
the date such representation or warranty was made; (j) any claim by brokers,
finders or similar persons claiming to be entitled to a commission in connection
with any Lease or other transaction involving the Trust Property or any part
thereof under any legal requirement or any liability asserted against
Beneficiary with respect thereto; and (k) the claims of any lessee of any or any
portion of the Trust Property or any person acting through or under any lessee
or otherwise arising under or as a consequence of any Lease (collectively, the
"INDEMNIFIED LIABILITIES"), provided that Trustor shall not have an obligation
to an Indemnified Party hereunder with respect to the Indemnified Liabilities
arising from the fraud, gross negligence or willful misconduct of such
Indemnified Party as determined by a court of competent jurisdiction. Any
amounts payable to Beneficiary or Trustee by reason of the application of this
paragraph shall be secured by this Deed of Trust and shall become immediately
due and payable and shall bear interest at the Default Rate from the date loss
or damage is sustained by Beneficiary or Trustee until paid. The obligations and
liabilities of Trustor under this paragraph shall survive the termination,
satisfaction, or assignment of this Deed of Trust and the exercise by
Beneficiary of any of its rights or remedies hereunder, including, but not
limited to, the acquisition of the Trust Property by foreclosure or a conveyance
in lieu of foreclosure.
27. NOTICES. Any notice, demand, statement, request or consent
made hereunder shall be in writing, addressed to the intended recipient at its
address set forth in the Loan Agreement, and shall be made and deemed given in
accordance with the terms of the Loan Agreement.
28. AUTHORITY. (a) Trustor (and the undersigned representative of
Trustor, if any) represent and warrant that it (or they, as the case may be) has
full power, authority and right to execute, deliver and perform its obligations
pursuant to this Deed of Trust, and to deed, mortgage, give, grant, bargain,
sell, alien, enfeoff, convey, confirm, warrant, pledge, hypothecate and assign
the Trust Property pursuant to the terms hereof and to keep and observe all of
the terms of this Deed of Trust on Trustor's part to be performed; and (b)
Trustor represents and warrants that Trustor is not a "FOREIGN PERSON" within
the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as
amended and the related Treasury Department regulations, including temporary
regulations.
29. NON-WAIVER. The failure of Beneficiary or Trustee to insist
upon strict performance of any term hereof shall not be deemed to be a waiver of
any term of this Deed of Trust. Any consent or approval by Beneficiary in any
single instance shall not be deemed or construed to be Beneficiary's consent or
approval in any like matter arising at a subsequent date. Trustor shall not be
relieved of Trustor's obligations hereunder by reason of (a) the failure of
Beneficiary or Trustee to comply with any request of Trustor or any Guarantor to
take any action to foreclose this Deed of Trust or otherwise enforce any of the
provisions hereof or of the Note,
16
or the other Loan Documents, (b) the release, regardless of consideration, of
the whole or any part of the Trust Property, or of any person liable for the
Debt or any portion thereof, or (c) any agreement or stipulation by Beneficiary
extending the time of payment or otherwise modifying or supplementing the terms
of the Note, this Deed of Trust or any of the other Loan Documents. Beneficiary
may resort for the payment of the Debt to any other security held by Beneficiary
in such order and manner as Beneficiary, in its sole discretion, may elect.
Beneficiary or Trustee may take action to recover the Debt, or any portion
thereof, or to enforce any covenant hereof without prejudice to the right of
Beneficiary or Trustee thereafter to foreclosure this Deed of Trust. The rights
and remedies of Beneficiary or Trustee under this Deed of Trust shall be
separate, distinct and cumulative and none shall be given effect to the
exclusion of the others. No act of Beneficiary or Trustee shall be construed as
an election to proceed under any one provision herein to the exclusion of any
other provision. Beneficiary and Trustee shall not be limited exclusively to the
rights and remedies herein stated but shall be entitled to every right and
remedy now or hereafter afforded at law or in equity.
30. NO ORAL CHANGE. This Deed of Trust, and any provisions hereof,
may not be modified, amended, waived, extended, changed, discharged or
terminated orally or by any act or failure to act on the part of Trustor or
Beneficiary, but only by an agreement in writing signed by the party against
whom enforcement of any modification, amendment, waiver, extension, change,
discharge or termination is sought.
31. LIABILITY. Subject to the provisions hereof requiring
Beneficiary's consent to any transfer of the Trust Property, this Deed of Trust
shall be binding upon and inure to the benefit of Trustor and Beneficiary and
their respective successors and assigns forever.
32. INAPPLICABLE PROVISIONS. If any term, covenant or condition of
the Note or this Deed of Trust is held to be invalid, illegal or unenforceable
in any respect, the Note and this Deed of Trust shall be construed without such
provision.
33. HEADINGS, ETC. The headings and captions of various paragraphs
of this Deed of Trust are for convenience of reference only and are not to be
construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
34. DUPLICATE ORIGINALS. This Deed of Trust may be executed in any
number of duplicate originals and each such duplicate original shall be deemed
to be an original.
35. DEFINITIONS. Unless the context clearly indicates a contrary
intent or unless otherwise specifically provided herein, words used in this Deed
of Trust may be used interchangeably in singular or plural form and the word
"TRUSTOR" shall mean "each Trustor and any subsequent owner or owners of the
Trust Property or any part thereof or any interest therein," the word
"BENEFICIARY" shall mean "BENEFICIARY and any subsequent holder of the Note,"
the word "TRUSTEE" shall mean "Trustee and any subsequent holder of this Deed of
Trust," the word "NOTE" shall mean "the Note and any other evidence of
indebtedness secured by this Deed of Trust," the word "PERSON" shall include an
individual, corporation, partnership, trust, unincorporated association,
government, governmental authority, and any other entity, and the words "TRUST
PROPERTY" shall include any portion of the Trust Property and any interest
therein and the words "ATTORNEYS' FEES" shall include any and all reasonable
attorneys' fees,
17
paralegal and law clerk fees, including, without limitation, fees at the
pre-trial, trial and appellate levels incurred or paid by Beneficiary in
protecting its interest in the Trust Property and Collateral and enforcing its
rights hereunder. Whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns and pronouns shall include the plural and vice versa.
36. HOMESTEAD. Trustor hereby waives and renounces all homestead
and exemption rights provided by the Constitution and the laws of the United
States and of any state, in and to the Trust Property as against the collection
of the Debt, or any part hereof.
37. ASSIGNMENTS. Beneficiary shall have the right to assign or
transfer its rights under this Deed of Trust without limitation. Any assignee or
transferee shall be entitled to all the benefits afforded Beneficiary under this
Deed of Trust.
38. WAIVER OF JURY TRIAL. EACH OF TRUSTOR AND BENEFICIARY HEREBY
AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND
WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL
NOW OR HEREAFTER EXIST WITH REGARD TO THE NOTE, THIS DEED OF TRUST, OR THE OTHER
LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND
VOLUNTARILY BY TRUSTOR AND BENEFICIARY, AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
JURY WOULD OTHERWISE ACCRUE. EACH OF TRUSTOR AND BENEFICIARY IS HEREBY
AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE
EVIDENCE OF THIS WAIVER BY THE OTHER PARTY.
39. TRUSTEE'S FEES; SUBSTITUTE TRUSTEE.
(a) Trustor shall pay all reasonable costs, fees and
expenses incurred by Trustee and Trustee's agents and counsel in connection with
the performance by Trustee of Trustee's duties hereunder and all such costs,
fees and expenses shall be secured by this Deed of Trust.
(b) Trustee shall be under no duty to take any action
hereunder except as expressly required hereunder or by law, or to perform any
act which would involve Trustee in any expense or liability or to institute or
defend any suit in respect hereof, unless properly indemnified to Trustee's
reasonable satisfaction. Trustee, by acceptance of this Deed of Trust, covenants
to perform and fulfill the trusts herein created, being liable, however, only
for gross negligence or willful misconduct, and hereby waives any statutory fee
and agrees to accept reasonable compensation, in lieu thereof, for any services
rendered by Trustee in accordance with the terms hereof. Trustee may resign at
any time upon giving thirty (30) days' notice to Trustor and to Beneficiary.
Beneficiary may remove Trustee at any time or from time to time and select a
successor trustee. In the event of the death, removal, resignation, refusal to
act, or inability to act of Trustee, or in its sole discretion for any reason
whatsoever, Beneficiary may, without notice and without specifying any reason
therefor and without applying to any court,
18
select and appoint a successor trustee, by an instrument recorded wherever this
Deed of Trust is recorded and all powers, rights, duties and authority of
Trustee, as aforesaid, shall thereupon become vested in such successor. Such
substitute trustee shall not be required to give bond for the faithful
performance of the duties of Trustee hereunder unless required by Beneficiary.
The procedure provided for in this paragraph for substitution of Trustee shall
be in addition to and not in exclusion of any other provisions for substitution,
by law or otherwise.
40. POWER OF SALE. Except as otherwise provided in Section 45 of
this Deed of Trust, the following provisions shall apply:
(a) Upon the occurrence and during the continuance of an
Event of Default, Trustee, or the agent or successor of Trustee, at the request
of Beneficiary, shall sell or offer for sale the Trust Property in such
portions, order and parcels as Beneficiary may determine with or without having
first taken possession of same, to the highest bidder for cash, free from the
equity of redemption, statutory right of redemption, homestead, dower and all
other rights and exemptions of every kind, each of which are hereby expressly
waived, at one or more public auctions in accordance with the terms and
provisions of the law of the State in which the Trust Property is located. Such
sale shall be made at the area within the courthouse of the county in which the
Trust Property (or any portion thereof to be sold) is situated (whether the
parts or parcels thereof, if any, in different counties are contiguous or not,
and without the necessity of having any personal property hereby secured present
at such sale) which is designated by the applicable court of such County as the
area in which public sales are to take place, or, if no such area is designated,
at the area at the courthouse designated in the notice of sale as the area in
which the sale will take place, on such day and at such times as permitted under
applicable law of the State where the Trust Property is located, after
advertising the time, place and terms of the sale of the Trust Property for
twenty-one (21) days by three (3) weekly notices in a newspaper published in the
County wherein the Trust Property is wholly or partially located. Trustor agrees
that the Trustee shall have the right to adjourn any such sale to another date
and time to be announced at the time and place of the sale as set forth in the
published notice, and in such event, no further publication of the sale is
required. The sale or sales of less than the whole of the Trust Property shall
not exhaust the power of sale granted herein, and the Trustee is specifically
empowered to make successive sales under such power until the whole of the Trust
Property shall be sold.
At any such public sale, Trustee may execute and deliver in the name of
Trustor to the purchaser a conveyance of the Trust Property or any part of the
Trust Property in fee simple. In the event of any sale under this Deed of Trust
by virtue of the exercise of the powers herein granted, or pursuant to any order
in any judicial proceeding or otherwise, the Trust Property may be sold in its
entirety or in separate parcels and in such manner or order as Beneficiary in
its sole discretion may elect, and if Beneficiary so elects, Trustee may sell
the personal property covered by this Deed of Trust at one or more separate
sales in any manner permitted by the Uniform Commercial Code of the State in
which the Trust Property is located, and one or more exercises of the powers
herein granted shall not extinguish or exhaust such powers, until all the Trust
Property is sold or the Note and other secured indebtedness is paid in full. If
the Note and other secured indebtedness is now or hereafter further secured by
any chattel Deed of Trusts, pledges, contracts or guaranty, assignments of
lease, or other security instruments, Beneficiary at its
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option may exhaust the remedies granted under any of said security instruments
either concurrently or independently, and in such order as Beneficiary may
determine.
(b) Upon any foreclosure sale or sales of all or any
portion of the Trust Property under the power herein granted, Beneficiary may
bid for and purchase the Trust Property and shall be entitled to apply all or
any part of the Debt as a credit to the purchase price.
(c) In the event of a foreclosure or a sale of all or any
portion of the Trust Property under the power herein granted, the proceeds of
said sale shall be applied, in whatever order Beneficiary in its sole discretion
may decide, to the reasonable expenses of such sale and of all proceedings in
connection therewith (including, without limitation, reasonable attorneys' fees
and expenses), to fees and expenses of Trustee (including, without limitation,
Trustee's reasonable attorneys' fees and expenses), to insurance premiums,
liens, assessments, taxes and charges (including, without limitation, utility
charges advanced by Beneficiary), to payment of the outstanding principal
balance of the Debt, and to the accrued interest on all of the foregoing; and
the remainder, if any, shall be paid to Trustor, or to the person or entity
lawfully entitled thereto.
41. LIMITATIONS ON RECOURSE PROVISIONS. The obligations of Trustor
hereunder are subject to limitations on recourse as provided in Article XII of
the Loan Agreement.
42. MISCELLANEOUS.
(a) Intentionally Omitted.
(b) The Loan Documents contain the entire agreement
between Trustor and Beneficiary relating to or connected with the Loan. Any
other agreements relating to or connected with the Loan not expressly set forth
in the Loan Documents are null and void and superseded in their entirety by the
provisions of the Loan Documents.
(c) Trustor represents and warrants to Beneficiary that,
to Trustor's knowledge, there has not been committed by Trustor or any other
person in occupancy of or involved with the operation or use of the Trust
Property any act or omission affording the federal government or any state or
local government the right of forfeiture as against the Trust Property or any
part thereof or any monies paid in performance of Trustor's obligations under
the Note or under any of the other Loan Documents. Trustor hereby covenants and
agrees not to commit, intentionally permit or suffer to exist any act, omission
or circumstance affording such right of forfeiture. In furtherance thereof,
Trustor hereby indemnifies Beneficiary and agrees to defend and hold Beneficiary
harmless from and against any loss, damage or injury by reason of the breach of
the covenants and agreements or the representations and warranties set forth in
this paragraph. Without limiting the generality of the foregoing, the filing of
formal charges or the commencement of proceedings against Trustor or all or any
part of the Trust Property under any federal or state law for which forfeiture
of the Trust Property or any part thereof or of any monies paid in performance
of Trustor's obligations under the Loan Documents is a potential result, shall,
at the election of Beneficiary, constitute an Event of Default hereunder without
notice or opportunity to cure.
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(d) Trustor acknowledges that, with respect to the Loan,
Trustor is relying solely on its own judgement and advisors in entering into the
Loan without relying in any manner on any statements, representations or
recommendations of Beneficiary or any parent, subsidiary or affiliate of
Beneficiary. Trustor acknowledges that Beneficiary engages in the business of
real estate financings and other real estate transactions and investments which
may be viewed as adverse to or competitive with the business of the Trustor or
its affiliates. Trustor acknowledges that it is represented by competent counsel
and has consulted counsel before executing the Loan Documents.
(e) Intentionally Omitted.
(f) This Deed of Trust and the obligations arising
hereunder shall be governed by and construed in accordance with the laws of the
State of New York and any applicable laws of the United States of America,
except that at all times the provisions for the creation, perfection and
enforcement of the liens and the security interests created pursuant to this
Deed of Trust shall be governed by the laws of the State where the Premises are
located.
43. FUTURE ADVANCES. This Deed of Trust secures "FUTURE ADVANCES,"
as hereinafter defined. Any portion of the Debt which is incurred after the
execution of this Deed of Trust pursuant to any instrument referring to this
Deed of Trust, or which is evidenced by any instrument stating that said
indebtedness is secured by this Deed of Trust, shall be defined as a "FUTURE
ADVANCE," including, without limitation, indebtedness incurred or advanced by
Beneficiary to Trustor or pursuant to the Loan Documents. It is agreed that the
Loan Documents are intended to secure all of the debts and obligations referred
to in the Loan Documents, some of which will be obligatory future advances, and
all advances under the Loan Documents will be for commercial purposes. This
Paragraph shall serve as notice to any subsequent holder of a lien, encumbrance,
security title or other claim in and to the Trust Property that Beneficiary
claims the priority of the lien of this Deed of Trust for all such Future
Advances, as well as for all other obligations secured hereby. This Paragraph
shall also be notice that Beneficiary reserves the right, upon agreement thereto
with Trustor, to modify, extend, consolidate, and renew the Debt, or any
portions thereof, and the rate of interest charged thereon, without affecting
the priority of the lien created by this Deed of Trust.
44. CROSS-COLLATERALIZATION. The mortgages and deeds of trust
(other than this Deed of Trust) listed on EXHIBIT B attached hereto and made a
part hereof, as any of same may be amended, modified or supplemented from time
to time, are collectively referred to for purposes of this Section 44 as the
"OTHER MORTGAGES." This Deed of Trust, as it may be amended, modified or
supplemented from time to time, together with the Other Mortgages, are
collectively referred to for purposes of this Section 44 as the "MORTGAGES." The
Debt is secured by, among other things, the Mortgages, which encumber real and
personal property in the States set forth on EXHIBIT B, as more particularly
described in each of the Mortgages. The Debt may be accelerated as provided in
the Loan Documents. Upon the occurrence and during the continuance of an Event
of Default, Beneficiary may, at its option, accelerate the Debt and foreclose
upon any one or more of the Mortgages or resort to any one or more of its other
rights and remedies under any or all of the Mortgages and the other Loan
Documents. Except as otherwise provided herein, all of the real and personal
property conveyed and/or mortgaged by the Mortgages are security for the Debt
without allocation of any one or more of the parcels or
21
portions thereof to any portion of the Debt. Beneficiary may allocate the
proceeds that it receives upon the exercise of its rights and remedies,
including foreclosure, to payment of the Debt as Beneficiary in its sole
discretion may determine to be advisable pursuant to the terms of the Loan
Documents. Beneficiary may proceed, at the same or different times, to foreclose
the Mortgages or any one or more of them, by any proceedings appropriate in the
state where any of the real property encumbered by one or more of the Mortgages
lies, including private sale if permitted, and no event of enforcement taking
place in any state, including without limiting the generality of the foregoing,
any pending foreclosure, judgment or decree of foreclosure, foreclosure sale,
rents received, possession taken, deficiency judgment or decrees, or judgment
taken on the Debt, shall in any way stay, preclude or bar enforcement of the
Mortgages or any of them in any other state, and Beneficiary may pursue any or
all of its remedies to the maximum extent permitted by applicable law pursuant
to the terms of the Loan Documents until all of the Debt and all other
obligations now or hereafter secured by any or all of the Mortgages have been
paid or discharged in full. Additionally, and without limitation of any other
provision of this Deed of Trust, if this Deed of Trust is foreclosed and the
Trust Property is sold (or any part thereof) pursuant to foreclosure or other
proceedings, and if the proceeds of such sale (after application of such
proceeds as provided in this Deed of Trust and the other Loan Documents) are not
sufficient to pay the total sum of the Debt then outstanding and any other
amounts provided for by applicable law (the "BALANCE OWED"), then, to the extent
permitted by law, the Debt shall not be satisfied to the extent of the Balance
Owed, but such Debt shall continue in existence and continue to be evidenced and
secured by the Loan Documents and the Mortgages. Subject to the requirements of
applicable law, if Beneficiary shall acquire the Trust Property as a result of
any foreclosure or other sale (whether by bidding all or any portion of the Debt
or otherwise), the proceeds of such sale, to the extent permitted by law, shall
not be deemed to include (and Trustor shall not be entitled to any benefit or
credit on account of) proceeds of any subsequent sale of the Trust Property by
Beneficiary. Without limitation of any other provision hereof, Trustor further
agrees that if any of the Other Mortgages are foreclosed and sale is made of any
of the property subject to any Other Mortgages, and if the proceeds of such sale
(after application of such proceeds as provided for herein and after deducting
all accrued and general and special taxes and assessments) are not sufficient to
pay the Debt and any other amounts provided for by applicable law, then, to the
extent permitted by law, the Debt then outstanding shall not be satisfied to the
extent of the Balance Owed, but such Debt shall continue in existence and
continue to be evidenced and secured by the Loan Documents and the Mortgages
existing immediately prior to any such foreclosure, except such Mortgages
foreclosed upon. No release of personal liability, if any, of any Person
whatsoever and no release of any portion of the property now or hereafter
subject to the lien of any of the Mortgages shall have any effect whatsoever by
way of impairment or disturbance of the lien or priority of any other of the
Mortgages or the unreleased properties encumbered by any of the Mortgages, to
the extent permitted by law. Any foreclosure or other appropriate remedy brought
in any of the states aforesaid may be brought and prosecuted as to any part of
the security, wherever located, without regard to the fact that foreclosure
proceedings or other remedies have or have not been instituted elsewhere on any
other property subject to the lien of the Mortgages. Neither Trustor nor any
Person claiming by, through or under Trustor shall have any right to marshal the
assets, all such rights being hereby expressly waived as to Trustor and all
Persons claiming by, through or under Trustor, Debt, without limitation, junior
lienors. Each of Trustor and all endorsers, guarantors and sureties of the Debt,
hereby waives any and all rights arising because of payment or
22
performance by Trustor of any Debt (a) against any Person by way of subrogation
of the rights of Beneficiary or (b) against any Person obligated to pay or
perform the Debt or other obligations secured by the Other Mortgages by way of
contribution, reimbursement or otherwise.
45. CERTAIN MATTERS RELATING TO TRUST PROPERTY LOCATED IN [STATE
PROPERTY IS LOCATED].
With respect to the Trust Property which is located in the
State of [STATE PROPERTY IS LOCATED], notwithstanding anything contained herein
to the contrary:
[STATE SPECIFIC PROVISIONS TO BE INSERTED]
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IN WITNESS WHEREOF, Trustor has executed this instrument the day and
year first above written.
TRUSTOR:
[PROPERTY OWNER NAME]
By:_____________________________________
Name:
Title:
ACKNOWLEDGEMENT
[INSERT STATE SPECIFIC ACKNOWLEDGMENT]
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EXHIBIT A
LEGAL DESCRIPTION OF REAL PROPERTY
A-1
EXHIBIT B
MORTGAGES
[SCHEDULE OF ALL OTHER DEEDS OF TRUST, DEEDS TO SECURE DEBT AND
MORTGAGES IN LOAN POOL]
B-1