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BEHRINGER HARVARD ALAMO PLAZA H, LLC AND BEHRINGER HARVARD ALAMO PLAZA S, LLC
(Trustor)
to
THE PUBLIC TRUSTEE OF THE CITY AND COUNTY OF DENVER, COLORADO
(Trustee)
for the benefit of
CITIGROUP GLOBAL MARKETS REALTY CORP.
(Beneficiary)
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DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS
AND SECURITY AGREEMENT
Dated: As of February __, 2005
Property Location: 0000 00xx Xxxxxx, Xxxxxx, Xxxxxxxx
DOCUMENT PREPARED BY AND WHEN RECORDED, RETURN TO:
Sidley Xxxxxx Xxxxx & Xxxx LLP
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
This Document serves as a fixture filing under Section 4-9-502,
Colorado Revised Statutes
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DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT
(this "DEED OF TRUST"), made as of February __, 2005, by BEHRINGER HARVARD ALAMO
PLAZA H, LLC, a Delaware limited liability company having an office at 00000
Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, and BEHRINGER HARVARD ALAMO
PLAZA S, LLC, a Delaware limited liability company having an office at 00000
Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 (collectively, "TRUSTOR"), to
THE PUBLIC TRUSTEE OF THE CITY AND COUNTY OF DENVER, COLORADO ("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-One
Million Five Hundred Thousand and No/Dollars ($31,500,000) (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") 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 (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;
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, 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 Trust 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 affecting 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 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
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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 Trust Property, including 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) the right, in the name and on behalf of Trustor, to appear in
and defend any action or proceeding brought with respect to the Trust Property
and to commence any action or proceeding to protect the interest of Beneficiary
in the Trust 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 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,
occupancy or enjoyment thereof or the conduct of any business or activities
thereon (hereinafter collectively referred to as the "INTANGIBLES");
(h) all right, title and interest of each entity constituting
Trustor, as tenants in common, under and pursuant to that certain Tenant in
Common Agreement recorded concurrently herewith (the "TENANT IN COMMON
AGREEMENT"), including any rights of first refusal (including such rights
arising under Section 363(i) of Chapter 11 of the United States Bankruptcy
Code), purchase options or other similar rights afforded to any tenant in common
under the Tenant in Common 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 Trust 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
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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 Trust 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.
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 Trust 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 Trust Property. Trustor
hereby grants and assigns to Beneficiary 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. 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 TRUST PROPERTY. Trustor shall not initiate, join in,
acquiesce in or consent to any change in any private restrictive covenant,
zoning law or other public or private restriction, limiting or defining the uses
which may be made of the Trust Property. If under applicable zoning provisions
the use of the Trust Property is or shall become a nonconforming use, Trustor
shall not cause or permit such nonconforming use to be discontinued or abandoned
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without the consent of Beneficiary. Trustor shall not (i) change the use of the
Trust Property, (ii) permit or suffer to occur any waste on or to the Trust
Property or (iii) take any steps to convert the Trust Property to a condominium
or cooperative form of ownership.
4. TRANSFER OR ENCUMBRANCE OF THE TRUST 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 Trust Property in agreeing to make
the Loan, (ii) 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 the Debt, and (iii) 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. Trustor shall not sell, convey, alienate, Deed of Trust,
encumber, pledge or otherwise transfer the Trust Property or any part thereof,
or suffer or permit any Transfer to occur, other than a Permitted Transfer.
(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, Deed of Trust, encumbrance, pledge or transfer of the Trust 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 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. 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 Trust Property, and no deduction
shall otherwise be made or claimed from the assessed value of the Trust 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
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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 Trust 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 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 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
shall pay all filing, registration or 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 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 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 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 thereon at the Default Rate for the
period after notice from Beneficiary that such cost or expense
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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 Trust 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 Trust Property 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;
(iv) sell for cash or upon credit the Trust 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 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 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 Trust 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 Trust Property, either personally or by its
agents, nominees or
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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 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 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 Trust 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 Trust Property, as well as just and reasonable
compensation for the services of Beneficiary, and its counsel, agents
and employees;
(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 Trust Property occupied by Trustor, and require Trustor to vacate
and surrender possession of the Trust 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
public sale in accordance with the laws of the State of Colorado, 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 Colorado. 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 Trust Property.
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 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
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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 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 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 or any other Loan Document.
(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 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
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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 Trust 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 Trust 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 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.
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 Trust 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.
(a) This Deed of Trust is both a real property Deed of Trust and a
"security agreement" within the meaning of the UCC. 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, 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 UCC (such
portion of the Trust 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 Trust 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
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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 the interest in the Collateral and in enforcing the
rights hereunder with respect to the Collateral. Any notice of sale, disposition
or other intended action by Beneficiary with respect to the Collateral, sent to
Trustor in accordance with the provisions hereof at least ten 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, 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 signed only by Beneficiary, as secured party, in connection
with the Collateral covered by this Deed of Trust.
(b) Trustor hereby absolutely and unconditionally pledges and
assigns to Beneficiary as additional security all of Trustor's right, title and
interest in, to and under the: (i) Tenant in Common Agreement, and (ii) the
Property and Asset Management Agreement ("MANAGEMENT AGREEMENT") among each
entity constituting Trustor and Behringer Harvard TIC Management Services LP
executed in connection with the Loan, (collectively, the "TENANCY IN COMMON
AGREEMENTS"); provided that Beneficiary shall have no obligation or liability
under any of the Tenancy In Common Agreements.
13. ACTIONS AND PROCEEDINGS. Beneficiary 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 sole discretion, decides should be brought to protect
its or 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.
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 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
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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. 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 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 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 provision.
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 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 words "TRUST PROPERTY" shall include any portion of the Trust Property and
any interest therein, the word "INCLUDING" means "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 Trust 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 Trust Property as against the collection of the
Debt, or any part thereof.
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21. 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.
22. WAIVER OF JURY TRIAL. TRUSTOR HEREBY AGREES NOT TO ELECT A TRIAL
BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY
JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH
REGARD TO THIS DEED OF TRUST OR 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. BENEFICIARY 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, 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 Trust 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, the
foregoing indemnity shall supersede any limitations on Trustor's liability under
any of the Loan Documents.
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25. LOAN REPAYMENT AND DEFEASANCE. Provided no Event of Default
exists, this Deed of Trust will be satisfied and discharged of record by
Beneficiary prior to [insert 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 TRUST 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. JOINT AND SEVERAL. Each Person constituting Trustor hereunder
shall have joint and several liability for the obligations of Trustor hereunder
except as otherwise provided in the Loan Documents.
29. 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.
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PART II
JURISDICTION SPECIFIC PROVISIONS
30. PUBLIC TRUSTEE FORECLOSURE AND SALE.
IN WITNESS WHEREOF, Trustor has executed this instrument as of the day
and year first written above.
Behringer Harvard Alamo Plaza H, LLC, a
Delaware limited liability company
By:____________________________________
Xxxxxx X. Xxxxxxx, III, Secretary
[Signatures continued on next page]
Behringer Harvard Alamo Plaza S, LLC, a
Delaware limited liability company
By:____________________________________
Xxxxxx X. Xxxxxxx, III, Secretary
STATE OF )
) ss.:
COUNTY OF )
The foregoing instrument was subscribed and sworn to me this ___ day of
February, 2005 by _______________________, an ____________________________.
Witness my hand and official seal.
My commission expires:
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[Notary Blocks continued on next page]
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
See Attached
