EXHIBIT 99.3
This document was prepared by and
after recording should be returned to:
Sidley Austin LLP
Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxx X. Xxxxxxxxx, Esq.
MAXIMUM PRINCIPAL INDEBTEDNESS FOR TENNESSEE RECORDING TAX PURPOSES IS THIRTY
MILLION TWO HUNDRED FIFTY THOUSAND AND NO/100THS DOLLARS ($30,250,000.00).
BEHRINGER HARVARD RIVERVIEW, LLC
as Trustor
to
XXXXXX X. XXXXXXXX III, A RESIDENT OF DAVIDSON COUNTY, TENNESSEE
as Trustee
in trust for the benefit of
CITIGROUP GLOBAL MARKETS REALTY CORP.
as Beneficiary
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DEED OF TRUST, FINANCING STATEMENT, ABSOLUTE ASSIGNMENT
OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING
------------------------------------
Dated as of: January 24, 2006
THIS INSTRUMENT COVERS PROPERTY WHICH IS OR MAY BECOME SO AFFIXED TO REAL
PROPERTY AS TO BECOME FIXTURES AND ALSO CONSTITUTES A FIXTURE FILING UNDER
SECTION 47-9-502 OF TENNESSEE CODE ANNOTATED.
THIS INSTRUMENT SECURES OBLIGATORY ADVANCES AND IS FOR COMMERCIAL PURPOSES. THIS
NOTICE IS PROVIDED FOR THE PURPOSE OF COMPLYING WITH TENNESSEE CODE ANNOTATED
SS.47-28-104(B).
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THIS INSTRUMENT CONSTITUTES A FIXTURE FILING
This DEED OF TRUST, FINANCING STATEMENT, ABSOLUTE ASSIGNMENT OF LEASES
AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this "DEED OF TRUST"), made as
of January 24, 2006, by BEHRINGER HARVARD RIVERVIEW, LLC, a Delaware limited
liability company having an office at 00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxx 00000 ("TRUSTOR"), to XXXXXX X. XXXXXXXX III, an individual and a resident
of Davidson County, Tennessee, having an address at c/o Stites & Xxxxxxxx PLLC,
000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000 ("TRUSTEE"), for the
benefit of CITIGROUP GLOBAL MARKETS REALTY CORP., a New York corporation
(together with its successors and assigns, hereinafter referred to as
"BENEFICIARY"), having an address at 000 Xxxxxxxxx Xxxxxx, Xxxxx 00, Xxx Xxxx,
Xxx Xxxx 00000.
Trustor and Beneficiary have entered into a Loan Agreement dated as of
the date hereof (as amended, modified, restated, consolidated or supplemented
from time to time, the "LOAN AGREEMENT") pursuant to which Beneficiary is making
a secured loan to Trustor in the maximum principal amount of up to Thirty
Million Two Hundred Fifty Thousand and No/Dollars ($30,250,000.00) (the "LOAN").
Capitalized terms used herein without definition are used as defined in the Loan
Agreement. The Loan is evidenced by a Note dated the date hereof made by Trustor
to Beneficiary in such principal amount (as the same may be amended, modified,
restated, severed, consolidated, renewed, replaced, or supplemented from time to
time, the "NOTE").
Trustor is the owner of fee simple title to certain parcels of real
property (the "PREMISES") located in the County of Xxxx, State of Tennessee and
more particularly described in EXHIBIT A attached hereto, and the buildings,
structures, fixtures, additions, enlargements, extensions, modifications,
repairs, replacements and other improvements now or hereafter located thereon
(collectively, the "IMPROVEMENTS").
To secure the payment of the Note and all sums which may or shall become
due thereunder or under any of the other documents evidencing, securing or
executed in connection with the Loan (the Note, this Deed of Trust, the Loan
Agreement and such other documents, as any of the same may, from time to time,
be modified, amended or supplemented, being hereinafter collectively referred to
as the "LOAN DOCUMENTS"), including (i) the payment of interest and other
amounts which would accrue and become due but for the filing of a petition in
bankruptcy (whether or not a claim is allowed against Trustor for such interest
or other amounts in any such bankruptcy proceeding) or the operation of the
automatic stay under Section 362(a) of Title 11 of the United States Code (the
"BANKRUPTCY CODE"), and (ii) the costs and expenses of enforcing any provision
of any Loan Document (all such sums being hereinafter collectively referred to
as the "DEBT"), Trustor has given, granted, bargained, sold, alienated,
enfeoffed, conveyed, confirmed, warranted, pledged, assigned and hypothecated
and by these presents does hereby give, grant, bargain, sell, alien, enfeoff,
convey, confirm, warrant, pledge, assign and hypothecate unto Trustee IN TRUST
for the benefit of Beneficiary, WITH POWER OF SALE, the Premises and the
Improvements;
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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 "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, 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, curtesy and rights of curtesy, 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 all heating, air conditioning,
plumbing, lighting, communications and elevator fixtures), inventory, materials,
supplies and other articles of personal property and accessions thereof,
renewals and replacements thereof and substitutions therefor, and other property
of every kind and nature, tangible or intangible, owned by Trustor, or in which
Trustor has or shall have an interest, now or hereafter located upon the
Premises or the Improvements, or appurtenant thereto, and usable in connection
with the present or future operation and occupancy of the Premises and the
Improvements (hereinafter collectively referred to as the "EQUIPMENT"),
including any leases of, deposits in connection with, and proceeds of any sale
or transfer of any 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
interest" as defined in the Uniform Commercial Code, as in effect in the State
where the Property is located (the "UCC"), superior in lien to the lien of this
Deed of Trust;
(c) all awards or payments, including interest thereon, that may
heretofore or hereafter be made with respect to the Premises or the
Improvements, whether from the exercise of the right of eminent domain or
condemnation (including any transfer made in lieu of or in anticipation of the
exercise of such right), or for a change of grade, or for any other injury to or
decrease in the value of the Premises or Improvements;
(d) all leases and other agreements or arrangements heretofore or
hereafter entered into providing for the use, enjoyment or occupancy of, or the
conduct of any activity upon or in, the Premises or the Improvements, including
any extensions, renewals, modifications or amendments thereof (hereinafter
collectively referred to as the "LEASES") and all rents, rent equivalents,
moneys payable as damages (including payments by reason of the rejection of a
Lease in a Bankruptcy Proceeding or in lieu of rent or rent equivalents),
royalties (including all oil and gas or other mineral royalties and bonuses),
income, fees, receivables, receipts, revenues, deposits (including security,
utility and other deposits), accounts, cash, issues, profits, charges for
services rendered, and other consideration of whatever form or nature received
by or paid to or for the account of or benefit of Trustor or its agents or
employees (other than fees paid under
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the Management Agreement and salaries paid to employees) from any and all
sources arising from or attributable to the Premises and the Improvements,
including 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
use and occupancy of the Premises or the Improvements, or rendering of services
by Trustor or any of its agents or employees, and proceeds, if any, from
business interruption or other loss of income insurance (hereinafter
collectively referred to as 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 Property (in the case of a blanket policy of insurance, to
the extent allocable to the Property), including the right to receive and apply
the proceeds of any insurance, judgments, or settlements made in lieu thereof,
for damage to the Property;
(f) the right, in the name and on behalf of Trustor, to appear in
and defend any action or proceeding brought with respect to the Property and to
commence any action or proceeding to protect the interest of Beneficiary in the
Property;
(g) all accounts (including reserve accounts), escrows, documents,
instruments, chattel paper, claims, deposits and general intangibles, as the
foregoing terms are defined in the UCC, and all franchises, trade names,
trademarks, symbols, service marks, books, records, plans, specifications,
designs, drawings, surveys, title insurance policies, permits, consents,
licenses, management agreements, contract rights (including 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 Property),
approvals, actions, refunds of real estate taxes and assessments (and any other
governmental impositions related to the Property) and causes of action that now
or hereafter relate to, are derived from or are used in connection with the
Property, or the use, operation, maintenance, occupancy or enjoyment thereof or
the conduct of any business or activities thereon (hereinafter collectively
referred to as the "INTANGIBLES");
(h) all of Trustor's rights, title and interests in and to the Alcoa
Termination Escrow Agreement (as defined below) and the Alcoa Termination Escrow
Funds (as defined below), including without limitation any amounts or
disbursements made, paid or payable or to be made or paid or required to be made
or paid to Trustor (or its affiliates, Harvard Property Trust, LLC and/or
Harvard REIT Operating Partnership) under the terms of the Alcoa Termination
Escrow Agreement or which Trustor (or its affiliates, Harvard Property Trust,
LLC and/or Harvard REIT Operating Partnership) shall be entitled to receive
pursuant to the terms and conditions of the Alcoa Termination Escrow Agreement.
For the purposes hereof, (i) the term "Alcoa Termination Escrow Agreement" shall
mean the terms and conditions set forth in Section 32 of that certain Agreement
of Purchase and Sale with respect to the Property dated August 31, 2005, entered
into by and between Harvard Property Trust, LLC, a Delaware limited liability
company, as the Buyer thereunder, and HPW Family Partnership, LLC, a Tennessee
limited liability company, Xxxxxx Family Partnership, LLC, a Tennessee limited
liability company, and Riverview Partners, LLC, a Tennessee limited liability
company, collectively as the Seller thereunder, as amended by that certain First
Amendment to Agreement of Purchase
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and Sale dated September 20, 2005 (which added such Section 32 to the Agreement
of Purchase and Sale), executed by (or joined in the execution by) the foregoing
parties and by Harvard REIT Operating Partnership, together with the Amended
Acceptance of Escrow and Agreement dated as of October 5, 2005, executed and
delivered by Partners Title Company, as escrow agent thereunder, all right,
title and interest of the Harvard Property Trust, LLC and Harvard REIT Operating
Partnership in which Alcoa Termination Escrow Agreement has been assigned to
Trustor pursuant to that certain Assignment of Purchase Agreement dated October
4, 2005 executed by Harvard REIT Operating Partnership, as the assignor
thereunder, and Trustor, as the assignee thereunder, and (ii) the term "Alcoa
Termination Escrow Funds" shall mean the funds in the amount of $500,000
(together with any interest thereon) held by the escrow agent under the Alcoa
Termination Escrow Agreement; and
(i) all proceeds, products, offspring, rents and profits from any of
the foregoing, including those from sale, exchange, transfer, collection, loss,
damage, disposition, substitution or replacement of any of the foregoing.
Without limiting the generality of any of the foregoing, in the event that a
case under the Bankruptcy Code is commenced by or against Trustor, pursuant to
Section 552(b)(2) of the Bankruptcy Code, the security interest granted by this
Deed of Trust shall automatically extend to all Rents acquired by the Trustor
after the commencement of the case and shall constitute cash collateral under
Section 363(a) of the Bankruptcy Code.
TO HAVE AND TO HOLD the Property unto and to the use and benefit of
Beneficiary and its successors and assigns, forever;
PROVIDED, HOWEVER, these presents are upon the express condition that,
if Trustor shall well and truly pay to Beneficiary the Debt at the time and in
the manner provided in the Loan Documents and shall well and truly abide by and
comply with each and every covenant and condition set forth in the 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 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 Loan Documents. All the covenants, conditions and agreements contained in
the 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. Without limiting
the generality of the foregoing, Trustor (i) agrees to insure, repair, maintain
and restore damage to the Property, pay Taxes and Other Charges, and comply with
Legal Requirements, in accordance with the Loan Agreement, and (ii) agrees that
the Proceeds of Insurance and Awards for Condemnation shall be settled, held and
applied in accordance with the Loan Agreement.
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2. LEASES AND RENTS.
(a) Trustor does hereby absolutely and unconditionally assign to
Beneficiary all of 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 shall not be construed to bind Beneficiary to the
performance of any of the covenants or provisions contained in any Lease or
otherwise impose any obligation upon Beneficiary. Nevertheless, subject to the
terms of this paragraph, Beneficiary grants to Trustor a revocable license to
operate and manage the Property and to collect the Rents subject to the
requirements of the Loan Agreement (including the deposit of Rents into the
Clearing Account). Upon an Event of Default, without the need for notice or
demand, the license granted to Trustor herein shall automatically be revoked,
and Beneficiary shall immediately be entitled to possession of all Rents in the
Clearing Account, the Deposit Account (including all Subaccounts thereof) and
all Rents collected thereafter (including Rents past due and unpaid), whether or
not Beneficiary enters upon or takes control of the Property. Trustor hereby
grants and assigns to Beneficiary the right, at its option, upon revocation of
the license granted herein, to enter upon the Property in person, by agent or by
court-appointed receiver to collect the Rents. Unless prohibited by applicable
law, any Rents collected after the revocation of such license may be applied
toward payment of the Debt in such priority and proportions as Beneficiary in
its sole discretion shall deem proper.
(b) Trustor shall not enter into, modify, amend, cancel, terminate
or renew any Lease except as provided in Section 5.10 of the Loan Agreement.
3. USE OF PROPERTY. Except as provided in the Loan Agreement: (a)
Trustor shall not initiate, join in, acquiesce in or consent to any change in
any private restrictive covenant, zoning law or other public or private
restriction, limiting or defining the uses which may be made of the Property;
(b) if under applicable zoning provisions the use of the Property is or shall
become a nonconforming use, Trustor shall not cause or permit such nonconforming
use to be discontinued or abandoned without the consent of Beneficiary; and (c)
Trustor shall not (i) change the use of the Property, (ii) permit or suffer to
occur any waste on or to the Property or (iii) take any steps to convert the
Property to a condominium or cooperative form of ownership.
4. TRANSFER OR ENCUMBRANCE OF THE PROPERTY.
(a) Trustor acknowledges that: (i) Beneficiary has examined and
relied on the creditworthiness and experience of the principals of Trustor in
owning and operating properties such as the Property in agreeing to make the
Loan; (ii) Beneficiary will continue to rely on Trustor's ownership of the
Property as a means of maintaining the value of the Property as security for the
Debt; and (iii) Beneficiary has a valid interest in maintaining the value of the
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 Property. Trustor shall
not sell, convey, alienate, Deed of Trust, encumber, pledge or otherwise
transfer the Property or any part thereof, or suffer or permit any Transfer to
occur, other than a Permitted Transfer or as otherwise expressly permitted under
the Loan Documents.
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(b) Beneficiary shall not be required to demonstrate any actual
impairment of its security or any increased risk of default hereunder in order
to declare the Debt immediately due and payable upon Transfer in violation of
this Paragraph 4. This provision shall apply to every sale, conveyance,
alienation, mortgage, encumbrance, pledge or transfer of the Property (and every
other Transfer) regardless of whether voluntary or not. Any Transfer made in
contravention of this Paragraph 4 shall be null and void and of no force and
effect. Trustor agrees to bear and shall pay or reimburse Beneficiary on demand
for all reasonable expenses (including 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 Permitted Transfer.
5. 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 Property for the purpose of taxation or which imposes a
tax, either directly or indirectly, on the Debt or Beneficiary's interest in the
Property, Trustor will pay such tax, with interest and penalties thereon, if
any. If Beneficiary is advised by its counsel that the payment of such tax or
interest and penalties by Trustor would be unlawful, taxable to Beneficiary or
unenforceable, or would provide the basis for a defense of usury, then
Beneficiary shall have the option, by notice of not less than 90 days, to
declare the Debt immediately due and payable.
6. NO CREDITS ON ACCOUNT OF THE DEBT. Trustor shall not claim or
demand or be entitled to any credit on account of the Debt for any part of the
Taxes or Other Charges assessed against the Property, and no deduction shall
otherwise be made or claimed from the assessed value of the Property for real
estate tax purposes by reason of this Deed of Trust or the Debt. If such claim,
credit or deduction shall be required by law, Beneficiary shall have the option,
by notice of not less than 90 days, to declare the Debt immediately due and
payable.
7. FURTHER ACTS, ETC. Trustor shall, at its sole cost, do, execute,
acknowledge and deliver all and every such further acts, deeds, conveyances,
mortgages, assignments, notices of assignment, transfers and assurances as
Beneficiary shall, from time to time, require, for the better assuring,
conveying, assigning, transferring, and confirming unto Beneficiary the property
and rights hereby 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 and
transfer of the Loan and the Loan Documents in connection with a Secondary
Market Transaction as described in Section 9.1 of the Loan Agreement. Upon
foreclosure, the appointment of a receiver or any other relevant action, Trustor
shall, at its sole cost, 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 Property. Trustor grants to Beneficiary an
irrevocable power of attorney coupled with an interest for the purpose of
exercising and perfecting any and all rights and remedies available to
Beneficiary at law and in equity, including such rights and remedies available
to Beneficiary pursuant to this paragraph. Notwithstanding anything to the
contrary in the immediately preceding sentence, Beneficiary shall not execute
any document as attorney-in-fact of Trustor unless (x) Trustor shall have failed
or refused to execute the same within five (5) Business Days after Beneficiary's
request therefor, or (y) in
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Beneficiary's good faith determination it would be materially prejudiced by the
delay involved in making such a request. Beneficiary shall give prompt notice to
Trustor of any exercise of the power of attorney as provided for in this
Paragraph 7, along with copies of all documents executed in connection
therewith.
8. RECORDING OF DEED OF TRUST, ETC. Trustor forthwith upon the
execution and delivery of this Deed of Trust and thereafter, from time to time,
shall cause this Deed of Trust, and any security instrument creating a lien or
security interest or evidencing the lien hereof upon the Property and each
instrument of further assurance to be filed, registered or recorded in such
manner and in such places as may be required by any present or future law in
order to publish notice of and fully to protect the lien or security interest
hereof upon, and the interest of Beneficiary in, the Property. Trustor shall pay
all filing, registration and recording fees, all expenses incident to the
preparation, execution and acknowledgment of and all federal, state, county and
municipal, taxes, duties, imposts, documentary stamps, assessments and charges
arising out of or in connection with the execution and delivery of, this Deed of
Trust, any Deed of Trust supplemental hereto, any security instrument with
respect to the Property and any instrument of further assurance, except where
prohibited by applicable 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 or recording of this Deed of
Trust.
9. RIGHT TO CURE DEFAULTS. Upon the occurrence 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, perform the obligations in Default in such manner and to such extent
as Beneficiary may deem necessary to protect the security hereof. Beneficiary is
authorized to enter upon the Property for such purposes or appear in, defend or
bring any action or proceeding to protect its interest in the Property or to
foreclose this Deed of Trust or collect the Debt, and the cost and expense
thereof (including reasonable attorneys' fees and disbursements to the extent
permitted by law), with interest thereon at the Default Rate 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.
10. REMEDIES.
(a) Upon the occurrence of any Event of Default, Beneficiary 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 Property, by Beneficiary
itself or otherwise, including 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, to the extent permitted by law, by advertisement, by action
or otherwise, for the complete foreclosure of this Deed of Trust, in
which case the Property may be
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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;
(iv) sell for cash or upon credit the Property and all
estate, claim, demand, right, title and interest of Trustor therein and
rights of redemption thereof, pursuant to the power of sale, to the
extent permitted by applicable law, 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
applicable 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 other Loan Document;
(vi) recover judgment on the Note either before, during or
after any proceeding for the enforcement of this Deed of Trust;
(vii) apply for the ex-parte appointment of a trustee,
receiver, liquidator or conservator of the Property, without notice and
without regard for the adequacy of the security for the Debt and without
regard for the solvency of the Trustor 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 Property, either personally or by its agents,
nominees or attorneys and dispossess Trustor and its agents and
employees therefrom, and thereupon Beneficiary may (A) use, operate,
manage, control, insure, maintain, repair, restore and otherwise deal
with the Property and conduct the business thereat; (B) complete any
construction on the Property in such manner and form as Beneficiary
deems advisable; (C) make alterations, additions, renewals, replacements
and improvements to or on the Property; (D) exercise all rights and
powers of Trustor with respect to the Property, whether in the name of
Trustor or otherwise, including the right to make, cancel, enforce or
modify Leases, obtain and evict tenants, and demand, xxx for, collect
and receive Rents; and (E) unless prohibited by applicable law, apply
the receipts from the Property to the payment of the 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, insurance and other charges
in connection with the Property, as well as just and reasonable
compensation for the services of Beneficiary, and its counsel, agents
and employees;
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(ix) require Trustor to pay monthly in advance to
Beneficiary, or any receiver appointed to collect the Rents, the fair
and reasonable rental value for the use and occupation of any portion of
the Property occupied by Trustor, and require Trustor to vacate and
surrender possession of the Property to Beneficiary or to such receiver,
and, in default thereof, evict Trustor by summary proceedings or
otherwise;
(x) foreclose this Deed of Trust pursuant to the power of
sale in accordance with the laws of the State of Tennessee, in which
case Beneficiary shall (A) deliver to Trustee a written notice of
default and election to cause Trustor's interest in the Premises to be
sold; and (B) deposit with Trustee this Deed of Trust and such
additional instruments or documents as Trustee may require under
applicable law. Upon receipt of such notice from Beneficiary, Trustee
shall give notice of sale and shall sell the Premises according to the
laws of the State of Tennessee. The costs and expenses incurred by
Beneficiary in the exercise of any of the remedies provided in this Deed
of Trust shall be secured by this Deed of Trust; or
(xi) pursue such other rights and remedies as may be
available at law or in equity or under the UCC, including the right to
receive and/or establish a lock box for all Rents and proceeds from the
Intangibles and any other receivables or rights to payments of Trustor
relating to the Property.
In the event of a sale, by foreclosure or otherwise, of less than all of the
Property, this Deed of Trust shall continue as a lien on the remaining portion
of the Property.
(b) The proceeds of any sale made under or by virtue of this
Paragraph 10, 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.
(c) Beneficiary 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 law, Beneficiary, 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, 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 10,
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
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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 10,
whether made under a power of sale 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 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 or any other Loan Document.
(f) No recovery of any judgment by Beneficiary and no levy of an
execution under any judgment upon the 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 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 10 at any time before the conclusion thereof, as determined in
Beneficiary's sole discretion and without prejudice to Beneficiary.
(h) Beneficiary may resort to any remedies and the security given by
this Deed of Trust or in any other Loan Document in whole or in part, and in
such portions and in such order as determined by 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 any Loan Document. The failure of
Beneficiary to exercise any right, remedy or option provided in any Loan
Document shall not be deemed a waiver of such right, remedy or option or of any
covenant or obligation secured by any Loan Document. 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 deemed to waive or cure any Event of Default, or Trustor's liability to
pay such obligation. No sale of all or any portion of the Property, no
forbearance on the part of Beneficiary, and no extension of time for the payment
of the whole or any portion of the Debt or any other indulgence given by
Beneficiary to Trustor, shall operate to release or in any manner affect the
interest of Beneficiary in the remaining Property or the liability of Trustor to
pay the Debt. No waiver by Beneficiary shall be effective unless it is in
writing and then only to the extent specifically stated. All costs and expenses
of Beneficiary in exercising its rights and remedies under this Paragraph 10
(including reasonable attorneys' fees and disbursements to the extent permitted
by law), shall be paid by Trustor immediately upon notice from Beneficiary, with
interest at the Default Rate for the period after notice from Beneficiary, 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 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
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Property or any portion thereof; or (iii) any release or indulgence granted to
any maker, endorser, guarantor or surety of any of the Debt.
11. RIGHT OF ENTRY. In addition to any other rights or remedies
granted under this Deed of Trust, Beneficiary and its agents shall have the
right to enter and inspect the Property at any reasonable time during the term
of this Deed of Trust. The 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 cost of such inspections, if not paid
for by Trustor following demand, 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.
12. SECURITY AGREEMENT. This Deed of Trust is both a real property
Deed of Trust and a "security agreement" within the meaning of the UCC. The
Property includes both real and personal property and all other rights and
interests, whether tangible or intangible in nature, of Trustor in the Property.
Trustor by executing and delivering this Deed of Trust has granted and hereby
grants to Beneficiary, as security for the Debt, a security interest in the
Property to the full extent that the Property may be subject to the UCC (such
portion of the Property so subject to the UCC being called in this paragraph the
"COLLATERAL"). This Deed of Trust shall also constitute a "fixture filing" for
the purposes of the UCC and is to be filed for record in the real estate records
where any part of the Property (including said fixtures) is situated. As such,
this Deed of Trust covers all items of the Collateral that are or are to become
fixtures. Information concerning the security interest herein granted may be
obtained from the parties at the addresses of the parties set forth in the first
paragraph of this Deed of Trust. If an Event of Default shall occur,
Beneficiary, in addition to any other rights and remedies which it may have,
shall have and may exercise immediately and without demand, any and all rights
and remedies granted to a secured party upon default under the UCC, including,
without limiting the generality of the foregoing, the right to take possession
of the Collateral or any part thereof, and to take such other measures as
Beneficiary may deem necessary for the care, protection and preservation of the
Collateral. Upon request or demand of Beneficiary, Trustor shall at its expense
assemble the Collateral and make it available to Beneficiary at a convenient
place acceptable to Beneficiary. Trustor shall pay to Beneficiary on demand any
and all expenses, including reasonable attorneys' fees and disbursements,
incurred or paid by Beneficiary in protecting its interest in the Collateral and
in enforcing its rights hereunder with respect to the Collateral. Any notice of
sale, disposition or other intended action by Beneficiary with respect to the
Collateral, sent to Trustor in accordance with the provisions hereof at least
ten (10) 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 Trustor,
Trustor shall notify Beneficiary thereof and promptly after request shall
execute, file and record such UCC forms as are necessary to maintain the
priority of Beneficiary's lien upon and security interest in the Collateral, and
shall pay all expenses and fees in connection with the filing and recording
thereof. If Beneficiary shall require the filing or recording of additional UCC
forms or continuation statements, Trustor shall, promptly after request,
execute, file and record such UCC forms or continuation statements as
Beneficiary shall deem necessary, and shall pay all expenses and fees in
connection with the filing and recording thereof, it being understood and
agreed,
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however, that no such additional documents shall increase Trustor's obligations
under the 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 (be they unsigned or
signed only by Beneficiary as secured party) in connection with the Collateral
covered by this Deed of Trust.
13. ACTIONS AND PROCEEDINGS. Beneficiary has the right to appear in
and defend any action or proceeding brought with respect to the Property and to
bring any action or proceeding, in the name and on behalf of Trustor, which
Beneficiary, in its sole discretion, decides should be brought to protect its or
their interest in the 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.
14. MARSHALLING AND OTHER MATTERS. Trustor hereby waives, to the
extent permitted by law, the benefit of all homestead, appraisement, valuation,
stay, extension, reinstatement and redemption laws now or hereafter in force and
all rights of marshalling in the event of any sale hereunder of the Property or
any part thereof or any interest therein. Further, 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, whether in law or equity
and whether by statute or otherwise, homestead, dower, elective share, rights of
appraisement or valuation and other rights and exemptions of every kind, and on
behalf of each and every person acquiring any interest in or title to the
Property subsequent to the date of this Deed of Trust and on behalf of all
persons to the extent permitted by applicable law. The lien of this Deed of
Trust shall be absolute and unconditional and shall not in any manner be
affected or impaired by any acts or omissions whatsoever of Beneficiary and,
without limiting the generality of the foregoing, the lien hereof shall not be
impaired by (i) any acceptance by Beneficiary of any other security for any
portion of the Debt, (ii) any failure, neglect or omission on the part of
Beneficiary to realize upon or protect any portion of the Debt or any collateral
security therefor or (iii) any release (except as to the property so released),
sale, pledge, surrender, compromise, settlement, renewal, extension, indulgence,
alteration, changing, modification or disposition of any portion of the Debt or
of any of the collateral security therefor; and Beneficiary may foreclose, or
exercise any other remedy available to Beneficiary under any of the other Loan
Documents without first exercising or enforcing any of its remedies under this
Deed of Trust, and any exercise of the rights and remedies of Beneficiary
hereunder shall not in any manner impair the Debt or the liens of any other Loan
Document or any of Beneficiary's rights and remedies thereunder.
15. NOTICES. All notices, consents, approvals and requests required
or permitted hereunder shall be in writing, and shall be sent, and shall be
deemed effective, as provided in the Loan Agreement.
16. INAPPLICABLE PROVISIONS. If any term, covenant or condition of
this Deed of Trust is held to be invalid, illegal or unenforceable in any
respect, this Deed of Trust shall be construed without such invalid, illegal or
unenforceable provision, and so construing the remaining provisions of this Deed
of Trust shall not be deemed to invalidate or render such
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remaining provisions hereof unenforceable, and to such ends the provisions
hereof are deemed to be severable.
17. HEADINGS. The paragraph headings in 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.
18. 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.
19. 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 a fee
interest in the Property or any part thereof," the word "BENEFICIARY" shall mean
"Beneficiary and any subsequent holder of the Note," the words "PROPERTY" shall
include any portion of the Property and any interest therein, the words
"INCLUDE" and "INCLUDING" shall be deemed to mean "including but not limited to"
and the words "ATTORNEYS' FEES" shall include any and all attorneys' fees,
paralegal and law clerk fees, including fees at the pre-trial, trial and
appellate levels incurred or paid by Beneficiary in protecting its interest in
the Property and Collateral and enforcing its rights hereunder.
20. 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 Property as against the collection of the Debt,
or any part thereof.
21. ASSIGNMENTS. Beneficiary shall have the right to assign or
transfer its rights under this Deed of Trust in connection with any transfer of
its interest in the Loan, or any portion thereof, in accordance with the Loan
Agreement. Any assignee or transferee shall be entitled to all the benefits
afforded Beneficiary under this Deed of Trust.
22. WAIVER OF JURY TRIAL. TRUSTOR AND BY THE FUNDING OF THE LOAN,
BENEFICIARY, HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF
RIGHT BY JURY, AND WAIVE ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY
SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS DEED OF TRUST OR ANY
OTHER LOAN DOCUMENT, 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 IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH
INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE
ACCRUE. EITHER PARTY HERETO IS HEREBY AUTHORIZED TO FILE A COPY OF THIS
PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY TRUSTOR.
23. CONSENTS. 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, and the failure of
Beneficiary to promptly exercise any right, power,
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remedy, consent or approval provided herein or at law or in equity shall not
constitute or be construed as a waiver of the same nor shall Beneficiary be
estopped from exercising such right, power, remedy, consent or approval at a
later date. Any consent or approval requested of and granted by Beneficiary
pursuant hereto shall be narrowly construed to be applicable only to Trustor and
the matter identified in such consent or approval and no third party shall claim
any benefit by reason thereof, and any such consent or approval shall not be
deemed to constitute Beneficiary a venturer or partner with Trustor nor shall
privity of contract be presumed to have been established with any such third
party. If Beneficiary deems it to be in its best interest to retain assistance
of persons, firms or corporations (including attorneys, title insurance
companies, appraisers, engineers and surveyors) with respect to a request for
consent or approval, Trustor shall reimburse Beneficiary for all costs
reasonably incurred in connection with the employment of such persons, firms or
corporations.
24. EMPLOYEE BENEFIT PLAN. During the term of this Deed of Trust,
unless Beneficiary shall have previously consented in writing, (i) Trustor shall
take no action that would cause it to become an "EMPLOYEE BENEFIT PLAN" as
defined in 29 C.F.R. Section 2510.3-101, or "ASSETS OF A GOVERNMENTAL PLAN"
subject to regulation under the state statutes, and (ii) Trustor shall not sell,
assign or transfer the Property, or any portion thereof or interest therein, to
any transferee that does not execute and deliver to Beneficiary its written
assumption of the obligations of this covenant. Trustor shall protect, defend,
indemnify and hold Beneficiary harmless from and against all loss, cost, damage
and expense (including all attorneys' fees, excise taxes and costs of correcting
any prohibited transaction or obtaining an appropriate exemption) that
Beneficiary may incur as a result of Trustor's breach of this covenant. This
covenant and indemnity shall survive the extinguishment of the lien of this Deed
of Trust by foreclosure or action in lieu thereof; furthermore, notwithstanding
anything to the contrary that may be set forth elsewhere in any of the Loan
Documents, the foregoing indemnity shall supersede any limitations on Trustor's
liability under any of the Loan Documents.
25. LOAN REPAYMENT AND DEFEASANCE. The lien of this Deed of Trust
shall be terminated, released and reconveyed of record by Beneficiary prior to
the Maturity Date only in accordance with the terms and provisions set forth in
the Loan Agreement.
26. GOVERNING LAW. THIS DEED OF TRUST SHALL BE GOVERNED BY, AND BE
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE IN WHICH THE PROPERTY IS
LOCATED WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.
27. EXCULPATION. The liability of Trustor hereunder is limited
pursuant to Section 10.1 of the Loan Agreement.
28. COUNTERPARTS. This Deed of Trust may be executed in any number
of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument.
29. Intentionally Omitted.
30. PART II -- JURISDICTION SPECIFIC PROVISIONS
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The following provisions shall also constitute an integral part of this
Deed of Trust. Furthermore, in the event that any prior provisions set forth in
Part I of this Deed of Trust conflict with the following provisions of this Part
II of this Deed of Trust, the provisions of this Part II shall control and shall
be deemed a modification of or amendment to the section or provision in Part I
at issue.
(a) Beneficiary shall, at its option, have the right to effect a
trustee's sale of the Property in whole or in part in lieu of judicial
foreclosure, and the Beneficiary may instruct the Trustee to enter and take
possession of all or certain portions the Property, and before or after such
entry to advertise for the sale of the Property for twenty-one (21) days by
three (3) weekly notices in some newspaper published in the county and state
where such Property is situated, and sell the Property or such portion of the
Property not thereafter released from the liens of this Deed of Trust as one
parcel in its entirety or any part thereof, either in mass or in parcels, at
public venue, to the highest bidder for cash at the usual door of the courthouse
in the county in which the Property is situated, free from equity of redemption,
and any statutory or common law rights of redemption, homestead, dower, which
are hereby expressly waived by Trustor; and Trustee shall execute a conveyance
deed to the purchaser at such sale(s) in fee simple and deliver possession to
such purchaser(s), in which Trustor binds itself and its successors and assigns
and which shall be given without obstruction, hindrance, or delay. Trustee shall
deliver to the purchaser, at any such trustee's sale, its deed, without
warranty, which will convey to such purchaser the interest in such Property
which the Trustor has or has the power to convey at the time of the execution of
this Deed of Trust, and such as Trustor may have hereafter acquired. Said deed
executed by Trustee shall recite the fact showing that such sale was conducted
in compliance with all the requirements of applicable law and of this Deed of
Trust, which recital shall be prima facie evidence of such compliance and
conclusive evidence thereof in favor of bona fide purchasers and encumbrances
for value. The owners or holders of any part of the Debt hereby secured,
including Beneficiary, may become purchasers at any such sale made pursuant
hereto.
(b) At the request of the Beneficiary, Trustee shall sell all or any
portions of the personal property and other Collateral concurrently with and in
conjunction with a sale of any other portions of the Property, in which case the
provisions of the preceding subsection shall apply to such personal property and
other Collateral with the same force and effect as it does with respect to any
other portions of the Property. Trustor stipulates and agrees that a sale of the
personal property and other Collateral in conjunction with any other portions of
the Property is a commercially reasonable manner of disposing of such personal
property and Collateral. Alternatively, Beneficiary may sell or otherwise
dispose of all or any portions of the personal property and other Collateral
separate and apart from the other portions of the Property in the time and
manner provided by the UCC. To the extent that the UCC shall require prior
notice of sale or other disposition of the personal property or other
Collateral, ten (10) days written notice shall be deemed to be reasonable
notice. Beneficiary may also (i) require Trustor to, and Trustor hereby agrees
that Trustor will at Trustor's expense and upon request of Beneficiary
forthwith, assemble all or part of the personal property or other Collateral as
directed by Beneficiary and make it available to Beneficiary at a place to be
designated by Beneficiary which is reasonably convenient to the parties, and
(ii) sell the personal property or other Collateral or any part thereof in one
or more parcels at public or private sale for cash or credit or for future
delivery, and at such price or prices and upon such other terms as Beneficiary
may deem commercially
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reasonable. Beneficiary shall not be obligated to sell any personal property or
other Collateral regardless of notice of sale having theretofore been given.
Beneficiary may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned.
(c) Beneficiary, or any successor in ownership of any of the Debt
secured hereby, may from time to time, with or without cause and at
Beneficiary's sole discretion, by instrument in writing, substitute a successor
or successors to any Trustee named herein or acting hereunder, which instrument,
executed by the Beneficiary duly acknowledged and recorded in the office of the
recorder of the county or counties where the Property is situated, shall be
conclusive proof of proper substitution of such successor Trustee(s), which
shall, without conveyance from its Trustee predecessor, thereby succeed to all
of its Trustee predecessor's title, estate, rights, powers and duties hereunder.
(d) Trustee covenants faithfully to perform the trust herein
created. Trustee accepts this trust, when this Deed of Trust, duly executed and
acknowledged, is made public record as provided by applicable law.
(e) Trustor agrees to pay all transfer taxes, recording fees and
taxes, and any other fees required by or imposed by the state or the county in
which the Property is located in order to record this Deed of Trust in the
register's office of said county.
(f) In the event of a foreclosure of the Property, Trustee and
Beneficiary shall not assume any liability of Trustor for Trustor's violation of
any environmental laws, statutes, codes, regulations, or practices and Trustor's
indemnification as contained in the Loan Agreement shall survive said
foreclosure.
(g) Trustor agrees to bear and pay all expenses (including
reasonable attorneys' fees and appellate attorneys' fees), of or incidental to
the enforcement of any provision hereof, or the enforcement, compromise, or
settlement of this Deed of Trust, and for the curing thereof, or for defending
or asserting the rights and claims of the Beneficiary in respect thereof, by
litigation or otherwise. All rights and remedies of the Beneficiary shall be
cumulative and may be exercised singly or concurrently. Notwithstanding anything
herein contained to the contrary, Trustor: (i) will not (1) at any time insist
upon, or plead, or in any manner whatever claim or take any benefit or advantage
of any stay or execution or moratorium law, any exemption for execution of sale
of the Property or any part thereof, wherever enacted, now or at any time
hereafter enforced, which may affect the covenants and terms of performance of
this Deed of Trust, nor (2) claim, take or insist upon any benefit or advantage
of any law now or hereafter enforced providing for the evaluation or appraisal
of the 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 (3) 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; (ii)
hereby expressly waives all benefit or advantage of any such law or laws
including a waiver of the equity of redemption, statutory right of redemption,
and any other statutory or common law right of redemption, homestead, dower,
marital share and all other exemptions; and (iii) covenants not to hinder, delay
or impede the execution of any power herein granted or delegated to the
Beneficiary, but to suffer and permit the execution of every power as though no
such law or laws had been made or enacted. Trustor, for itself and all who may
now or
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hereafter claim under, by or through Trustor, waives, to the extent that it
lawfully may, all right to have the Property marshaled upon any foreclosure
thereof.
(h) The Trustee named herein or any successor Trustee shall be
clothed with the full power to act when action herein shall be required and to
execute any conveyance of any portion of the Property except as otherwise
expressly required. In the event that the substitution of the Trustee shall
become necessary for any reason, the substitution of one trustee in the place of
the Trustee herein named shall be sufficient. The necessity of the Trustee
herein named, or any successor in trust, making oath or giving bond is expressly
waived. The Trustee or any one acting in his stead, shall have, in its
discretion, authority to employ all proper agents and attorneys in the execution
of this Deed of Trust and/or in the conducting of any sale made pursuant to the
terms hereof, and to pay for such services rendered out of the proceeds of such
sale or sales of the Property, should any be realized; and if no sale be made
then Trustor hereby undertakes and agrees to pay the cost of such services
rendered to said Trustee.
(i) Notwithstanding anything to the contrary in this Deed of Trust,
the maximum amount of principal indebtedness secured by this Deed of Trust or
which under any contingency may be secured by this Deed of Trust is Thirty
Million Two Hundred Fifty Thousand and NO/100ths Dollars ($30,250,000.00).
Notwithstanding the foregoing or anything to the contrary contained herein, the
following provisions shall apply:
(1) to the fullest extent permitted by applicable law, the lien
of this Deed of Trust shall not be or be deemed to be reduced by
any prepayment or repayment of the principal amount of the Debt
secured hereby incurred under the Loan Agreement or Note;
(2) so long as any portion of the Debt remains unpaid, such
portion of the Debt last remaining unpaid shall be and be deemed
to be secured hereby; and
(3) the lien of this Deed of Trust shall secure amounts expended
by Beneficiary to maintain the lien of this Deed of Trust or to
protect the Property secured by this Deed of Trust, including
amounts in respect of insurance premiums, real estate taxes,
assessments, maintenance charges, other expenses for the
protection of the Property or the lien of this Deed of Trust,
litigation expenses to prosecute or defend the rights, remedies
and liens of this Deed of Trust or title to the Property
encumbered hereby, and any costs, charges or amounts to which
Beneficiary becomes subrogated upon payment, whether under
recognized principles of law or equity or under express
statutory authority, together with interest on all the foregoing
amounts at such rates as are provided for in the Loan Agreement
and the Note.
(j) The holder of the lien created by this instrument has not and
will not consent to any contract or to any work or to the furnishing of any
materials which might be deemed to create a lien or liens superior to the lien
of this instrument under Section 00-00-000 of the Tennessee Code Xxx., as
amended or otherwise.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. TRUSTOR'S
SIGNATURE FOLLOWS ON NEXT PAGE]
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IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the
day and year first written above.
BEHRINGER HARVARD RIVERVIEW, LLC, a
Delaware limited liability company
By:___________________________________
Xxxxxx X. Xxxxxxx, III, Secretary
[TRUSTOR'S SIGNATURE IS NOTARIZED ON NEXT PAGE]
ACKNOWLEDGMENT
State of ______________ )
County of _____________ )
Before me, a notary public of the state and county mentioned, personally
appeared Xxxxxx X. Xxxxxxx, III, with whom I am personally acquainted (or proved
to me on the basis of satisfactory evidence), and who, upon oath, acknowledged
such person to be the Secretary of BEHRINGER HARVARD RIVERVIEW, LLC, a Delaware
limited liability company, the within named Trustor, and that he, as such
Secretary, being authorized so to do, executed the foregoing instrument for the
purposes therein contained, by signing the name of the limited liability company
by himself as his free and voluntary act as its Secretary.
Witness my hand and seal, at office in the County of _______________,
State of _________________, this ___ day of January, 2006.
___________________________________
Notary Public
My Commission Expires:__________
EXHIBIT A
LEGAL DESCRIPTION
TRACT I:
BEING a parcel of land located in the First Xxxx of the City of Knoxville,
Tennessee and the First District of Xxxx County, Tennessee, and being a portion
of the city block bounded by Gay Street, Hill Avenue, State Street, and Main
Avenue, and being more particularly described as follows:
BEGINNING at a set spike in asphalt at the intersection of the easterly right of
way of Gay Street and the southerly right of way of Main Avenue and being
approximately 2.5 feet west of the curb line; thence North 65 deg. 12 min. 00
sec. East, 295.20 feet along the southerly right of way of Main Avenue and along
the northerly face of a wall to a set brass disc with punch point, set in the
sidewalk and at the intersection of the southerly right of way of Main Avenue
and the westerly right of way of State Street; thence South 24 deg. 49 min. 00
sec. East, 258.94 feet along the westerly right of way of State Street in the
sidewalk to a point being North 24 deg. 49 min. 00 sec. East, 24.00 feet from a
set spike in asphalt; thence South 20 deg. 33 min. 00 sec. West, 33.72 feet to a
point on the northerly right of way of Hill Avenue and being South 65 deg. 55
min. 00 sec. West, 24.00 feet from a set spike reference point; thence South 65
deg. 55 min. 00 sec. West, 105.03 feet along the northerly right of way of Hill
Avenue and along the south face of a wall to a set spike in asphalt; thence
North 24 deg. 57 min. 00 sec. West, 135.01 feet along the west face of a wall
along the common line with Aetna Casualty and Surety Company to a drill point in
concrete in the loading dock area of Riverview Tower; thence South 65 deg. 55
min. 00 sec. West, 42.73 feet continuing with Aetna to a set nail; thence North
24 deg. 30 min. 00 sec. West, 20.15 feet continuing with Aetna to a point;
thence South 65 deg. 12 min. 00 sec. West, 23.10 feet continuing with Aetna to a
point; thence North 24 deg. 48 min. 00 sec. West, 41.50 feet continuing with
Aetna to a point beneath the Riverview Tower; thence South 65 deg. 12 min. 00
sec. West, 100.00 feet continuing with Aetna to a point on the curb of Gay
Street on the easterly right of way of Gay Street; thence North 24 deg. 57 min.
00 sec. West, 84.14 feet along the easterly right of way of Gay Street and along
the curb to the point of BEGINNING, containing 53,726 square feet or 1.23 acres,
as shown on plat of survey by Barge, Xxxxxxxx, Xxxxxx and Xxxxxx, Xxxx X. Xxxxx,
XXX Xx. 0000, dated September 21, 2005, last revised September 27, 2005, and
bearing File No. 32441-00.
TRACT II:
OVERHEAD PEDESTRIAN BRIDGE - LOCATED AS FOLLOWS:
BEGINNING at a point in the south right-of-way of Main Avenue, said point being
140.44 feet from the intersection of the south right-of-way of Main Avenue with
the east right-of-way of Gay Street; thence, from said beginning point and
continuing with the right-of-way of Main Avenue, North 65 deg. 12 min. East,
11.34 feet to a point; thence, North 24 deg. 48 min. 00 sec. West, 65.72 feet to
a point; thence North 65 deg. 12 min.
00 sec. East, 11.34 feet to a point; thence South 24 deg. 48 min. 00 sec. East,
65.72 feet to the point of BEGINNING, containing 745 square feet..
TOGETHER WITH APPURTENANT NON-EXCLUSIVE EASEMENTS (Deed Book 1997, page 305)
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
TRACT III:
NON-EXCLUSIVE EASEMENT:
Situated in the First Civil District of Xxxx County, Tennessee, and in the First
Xxxx of the City of Knoxville and being described as follows:
The point of Beginning of this line lies South 24 deg. 57 min. East, 84.14 feet
from the point of intersection of the eastern right-of-way line of Gay Street
and the southern right-of-way line of Main Avenue;
THENCE, from said point of Beginning North 65 deg. 12 min. 00 sec. East, 73.00
feet to a point;
THENCE, South 69 deg. 48 min. 00 sec. East, 38.18 feet to a point;
THENCE, South 24 deg. 48 min. 00 sec. East, 2.98 feet to a point;
THENCE, North 65 deg. 12 min. 00 sec. East, 23.16 feet to a point.
THENCE, South 24 deg. 30 min. 00 sec. East, 13.84 feet to a point;
THENCE, South 65 deg. 02 min. 00 sec. West, 122.97 feet to a point in the
eastern right-of-way line of Gay Street;
THENCE, North 24 deg. 57min. 00 sec. West, 44.18 feet to the point of Beginning.
TRACT 6
NON-EXCLUSIVE EASEMENT:
Beginning at a point located by the following calls. Starting at the
intersection of the east right-of-way of Gay Street with the south right-of-way
of Main Avenue.
THENCE, with the right-of-way of Main Avenue, North 65 deg. 12 min. East,
123.95 feet to an iron pin;
THENCE, leaving the right-of-way of Main Avenue, South 24 deg. 30 min. East,
84.14 feet to the point of Beginning;
THENCE, from said beginning point, South 24 deg. 30 min. East, 29.52 feet to a
point;
THENCE, South 65 deg. 12 min. West, 23.16 feet to a point;
THENCE, North 24 deg. 48 min. West, 2.53 feet to a point;
THENCE, North 69 deg. 48 min. West, 38.18 feet to a point;
THENCE, North 65 deg. 12 min. East, 50.31 feet to the point of Beginning, and
containing 1,051 square feet, more or less.
TRACT 7:
NON-EXCLUSIVE EASEMENT:
Beginning at a point in the north right of way of Hill Avenue, said point being
located 129.03 feet, more or less, from the intersection of the north right of
way of Hill Avenue with the west right of way of State Street; thence from said
beginning point and continuing with the right of way of Hill Avenue, South 65
deg. 55 min. West, 15.0 feet to an iron pin; thence leaving the right of way of
Hill Avenue, North 24 deg. 57 min. West, 135.0 feet to an iron pin; thence North
65 deg. 55 min. East, 15.01 feet to an iron pin; thence South 24 deg. 57 min.
East, 135.01 feet to a point in the right of way of Hill Avenue, the point of
beginning, containing 1728 square feet or .05 acres, more or less.
TRACT 8:
NON-EXCLUSIVE EASEMENT:
Beginning at a point marking the southwest corner of a 12 foot alley; thence
from said beginning point, North 65 deg. 55 min. East, 27.72 feet to an iron
pin; thence, South 24 deg. 57 min. East, 22.0 feet to a point; thence South 65
deg. 03 min. West, 18.7 feet to a point; thence North 24 deg. 57 min. West, 6.0
feet to a point; thence South 65 deg. 03 min. West, 22.0 feet to a point; thence
North 24 deg. 57 min. West, 10.2 feet to a point; thence South 65 deg. 03 min.
West, 10.0 feet to a point; thence North 24 deg. 48 min. West, 26.4 feet to an
iron pin; thence North 65 deg. 12 min. East, 23.10 feet to an iron pin; thence
South 24 deg. 30 min. East, 20.15 feet to the point of beginning, containing
1,302 square feet or 0.03 acres, more or less.
BEING THE SAME property conveyed to Behringer Harvard Riverview, LLC, a Delaware
limited liability company, by deed from HPW Family Partnership, LLC, a Tennessee
limited liability company, Xxxxxx Family Partnership, LLC, a Tennessee limited
liability company, and Riverview Partners, LLC, a Tennessee limited liability
company, dated October 5, 2005, and filed of record as Instrument No.
200510050031543, in the office of the Xxxx County Register of Deeds.
