Exhibit 99.4
LOAN NO.: 58791
SERVICING NO.: 3197753
▇▇▇▇▇▇▇ PLAZA ASSOCIATES, L.P., as grantor
(Borrower)
to
PRLAP, INC., as trustee
(Trustee)
for the benefit of
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., as beneficiary
(Beneficiary)
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DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS,
AND SECURITY AGREEMENT
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COLLATERAL IS OR INCLUDES FIXTURES
Dated: As of March 22, 2005
Location: Tarrant County
Fort Worth, Texas
MERS MIN: 8000101-0000001029-7
PREPARED BY AND UPON
RECORDATION RETURN TO:
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR
STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED
FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S
LICENSE NUMBER.
THIS DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS AND SECURITY
AGREEMENT (this "SECURITY INSTRUMENT") is made as of this 22nd day of March,
2005, by ▇▇▇▇▇▇▇ PLAZA ASSOCIATES, L.P., a Delaware limited partnership, having
its principal place of business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, as grantor ("BORROWER") to PRLAP, INC., a Texas
corporation, having its principal place of business at c/o Capital Markets
Servicing Group, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, Mail Code: NC1-026-06-01,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as trustee ("TRUSTEE") for the benefit of
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., a Delaware stock corporation,
having an office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as
beneficiary and as nominee of Lender (as defined below) ("BENEFICIARY"). All
capitalized terms not defined herein shall have the respective meanings set
forth in the Loan Agreement (defined below).
RECITALS:
This Security Instrument is given to Trustee for the benefit of
Beneficiary, in its capacity as nominee for Lender (defined below) in accordance
with Section 17.2 below, to secure a loan (the "LOAN") in the principal sum One
Hundred Fourteen Million Two Hundred Thousand and No/100 Dollars
($114,200,000.00) advanced pursuant to that certain Loan Agreement, dated as of
the date hereof, between Borrower and Bank of America, N.A., a national banking
association ("LENDER"), among others (as the same may be amended, restated,
replaced, supplemented or otherwise modified from time to time, the "LOAN
AGREEMENT") and evidenced by that certain Promissory Note, dated as of the date
hereof, made by Borrower in favor of Lender (such Promissory Note, together with
all extensions, renewals, replacements, restatements or modifications thereof
being hereinafter referred to as the "NOTE");
Borrower desires to secure the payment of the Debt (as defined in the
Loan Agreement) and the performance of all of its obligations under the Note,
the Loan Agreement and the other Loan Documents (as defined in the Loan
Agreement); and
This Security Instrument is given pursuant to the Loan Agreement, and
payment, fulfillment, and performance by Borrower of its obligations thereunder
and under the other Loan Documents are secured hereby.
ARTICLE I
GRANTS OF SECURITY
Section 1.1 PROPERTY MORTGAGED. Borrower does hereby irrevocably
mortgage, grant, bargain, sell, pledge, assign, warrant, transfer, convey and
grant a security interest to Trustee, its successors and assigns, for the
benefit of Beneficiary and its successors and assigns the following property,
rights, interests and estates now owned, or hereafter acquired by Borrower
(collectively, the "PROPERTY"):
(a) LAND. The real property described in Exhibit A attached hereto
and made a part hereof (the "LAND");
(b) ADDITIONAL LAND. All ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ and development
rights hereafter acquired by Borrower for use in connection with the Land and
the development of the Land and all additional lands and estates therein which
may, from time to time, by supplemental mortgage or otherwise be expressly made
subject to the lien of this Security Instrument;
(c) IMPROVEMENTS. The buildings, structures, fixtures, additions,
enlargements, extensions, modifications, repairs, replacements and improvements
now or hereafter erected or located on the Land (collectively, the
"IMPROVEMENTS");
(d) EASEMENTS. All easements, rights-of-way or use, rights, strips
and gores of land, streets, ways, alleys, passages, sewer rights, water, water
courses, water rights and powers, air rights and development rights, and all
estates, rights, titles, interests, privileges, liberties, servitudes,
tenements, hereditaments and appurtenances of any nature whatsoever, in any way
now or hereafter belonging, relating or pertaining to the Land and the
Improvements and the reversions and remainders, and all land lying in the bed of
any street, road or avenue, opened or proposed, in front of or adjoining the
Land, to the center line thereof and all the estates, rights, titles, interests,
rights of dower, rights of curtesy, property, possession, claim and demand
whatsoever, both at law and in equity, of Borrower of, in and to the Land and
the Improvements and every part and parcel thereof, with the appurtenances
thereto;
(e) FIXTURES AND PERSONAL PROPERTY. All machinery, equipment,
fixtures (including, but not limited to, all heating, air conditioning,
plumbing, lighting, communications and elevator fixtures), furniture, software
used in or to operate any of the foregoing and other property of every kind and
nature whatsoever owned by Borrower (not including software which is licensed
and is non-assignable by Borrower), or in which Borrower has or shall have an
interest, now or hereafter located upon the Land and the Improvements, or
appurtenant thereto, and usable in connection with the present or future
operation and occupancy of the Land and the Improvements and all building
equipment, materials and supplies of any nature whatsoever owned by Borrower, or
in which Borrower has or shall have an interest, now or hereafter located upon
the Land and the Improvements, or appurtenant thereto, or usable in connection
with the present or future operation and occupancy of the Land and the
Improvements (collectively, the "PERSONAL PROPERTY"), and the right, title and
interest of Borrower in and to any of the Personal Property which may be subject
to any security interests, as defined in the Uniform Commercial Code, as adopted
and enacted by the state or states where any of the Property is located (the
"UNIFORM COMMERCIAL CODE"), and all proceeds and products of the above;
(f) LEASES AND RENTS. All leases, subleases, subsubleases, lettings,
licenses, concessions or other agreements (whether written or oral), pursuant to
which any Person is granted a possessory interest in, or right to use or occupy
all or any portion of the Land and the Improvements, and every modification,
amendment or other agreement relating to such leases, subleases, subsubleases or
other agreements entered into in connection with such leases, subleases,
subsubleases or other agreements and every guarantee of the performance and
observance of the covenants, conditions and agreements to be performed and
observed by the other party thereto, heretofore or hereafter entered into,
whether before or after the filing by or against Borrower of any petition for
relief under any Creditors Rights Laws (collectively, the "LEASES") and all
right, title and interest of Borrower, its successors and assigns therein and
thereunder, including, without limitation, cash or securities deposited
thereunder to secure the
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performance by the lessees of their obligations thereunder, including, but not
limited to, all rents, rent equivalents, moneys payable as damages or in lieu of
rent or rent equivalents, royalties (including, without limitation, all oil and
gas or other mineral royalties and bonuses), income, receivables, receipts,
revenues, deposits (including, without limitation, security, utility and other
deposits), accounts, cash, issues, profits, charges for services rendered, room
rents and room revenues, if any, and other consideration of whatever form or
nature received by or paid to or for the account of or benefit of Borrower or
its agents or employees from any and all sources arising from or attributable to
the Property, including, all receivables, credit card receivables, rights to
payment from any consumer credit card organization or entity, credit card
receipts, 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 property or rendering of services by Borrower or Manager and
proceeds, if any, from business interruption or other loss of income insurance
whether paid or accruing before or after the filing by or against Borrower of
any petition for relief under any Creditors Rights Laws (collectively, the
"RENTS") and 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;
(g) INSURANCE PROCEEDS. All Insurance Proceeds in respect of the
Property under any Policies covering the Property, including, without
limitation, the right to receive and apply the proceeds of any insurance,
judgments, or settlements made in lieu thereof, for damage to the Property;
(h) CONDEMNATION AWARDS. All Awards, including interest thereon,
which may heretofore and hereafter be made with respect to the Property by
reason of Condemnation, whether from the exercise of the right of eminent domain
(including, but not limited to, any transfer made in lieu of or in anticipation
of the exercise of the right), or for a change of grade, or for any other injury
to or decrease in the value of the Property;
(i) TAX CERTIORARI. All refunds, rebates or credits in connection
with reduction in real estate taxes and assessments charged against the Property
as a result of tax certiorari or any applications or proceedings for reduction;
(j) RIGHTS. The right, in the name and on behalf of Borrower, 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
Lender in the Property;
(k) AGREEMENTS. To the extent assignable, all agreements, contracts,
certificates, instruments, franchises, permits, licenses, plans, specifications
and other documents, now or hereafter entered into, and all rights therein and
thereto, respecting or pertaining to the use, occupation, construction,
management or operation of the Land and any part thereof and any Improvements or
any business or activity conducted on the Land and any part thereof and all
right, title and interest of Borrower therein and thereunder, including, without
limitation, the right, upon the happening of any default hereunder, to receive
and collect any sums payable to Borrower thereunder;
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(l) INTANGIBLES. To the extent assignable, all tradenames,
trademarks, servicemarks, logos, copyrights, goodwill, books and records and all
other general intangibles relating to or used in connection with the operation
of the Property;
(m) ACCOUNTS. All reserves, escrows and deposit accounts maintained
by Borrower with respect to the Property, including without limitation, the
Reserve Accounts including, without limitation, the Lockbox Account, the Cash
Management Account and all accounts established pursuant to Articles 9 and 10 of
the Loan Agreement together with all deposits or wire transfers made to the
Lockbox Account and all cash, checks, drafts, certificates, securities,
investment property, financial assets, instruments and other property held
therein from time to time and all proceeds, products, distributions or dividends
or substitutions thereon and thereof;
(n) PROCEEDS. All proceeds of any of the foregoing items set forth
in subsections (a) through (m) including, without limitation, Insurance Proceeds
and Awards; and
(o) OTHER RIGHTS. Any and all other rights of Borrower in and to the
items set forth in subsections (a) through (n) above.
Section 1.2 ASSIGNMENT OF RENTS. Borrower hereby absolutely and
unconditionally assigns to Beneficiary and Trustee all of Borrower's right,
title and interest in and to all current and future Leases and Rents; it being
intended by Borrower that this assignment constitutes a present, absolute
assignment and not an assignment for additional security only. Nevertheless,
subject to the terms of the Loan Agreement and Section 8.1(h) of this Security
Instrument, Beneficiary grants to Borrower a revocable license to collect,
receive, use and enjoy the Rents and Borrower shall hold the Rents, or a portion
thereof sufficient to discharge all current sums due on the Debt, for use in the
payment of such sums.
Section 1.3 SECURITY AGREEMENT. This Security Instrument is both a
real property mortgage and a "security agreement" within the meaning of the
Uniform Commercial Code. The Property includes both real and personal property
and all other rights and interests, whether tangible or intangible in nature, of
Borrower in the Property. By executing and delivering this Security Instrument,
Borrower hereby grants to Beneficiary and Trustee, as security for the
Obligations (hereinafter defined), a security interest in the Personal Property
to the full extent that the Personal Property may be subject to the Uniform
Commercial Code.
Section 1.4 FIXTURE FILING. Certain of the Property is or will
become "fixtures" (as that term is defined in the Uniform Commercial Code) on
the Land, and this Security Instrument, upon being filed for record in the real
estate records of the city or county wherein such fixtures are situated, shall
operate also as a financing statement filed as a fixture filing in accordance
with the applicable provisions of said Uniform Commercial Code upon such of the
Property that is or may become fixtures.
Section 1.5 CONDITIONS TO GRANT. TO HAVE AND TO HOLD the above
granted and described Property unto Trustee for and on behalf of Beneficiary and
to the use and benefit of Beneficiary and Trustee and their successors and
assigns, forever; IN TRUST, WITH POWER OF SALE, to secure payment to Lender of
the Debt at the time and in the
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manner provided for its payment in the Note and in this Security Instrument,
PROVIDED, HOWEVER, these presents are upon the express condition that, if
Borrower shall well and truly pay to Lender the Debt at the time and in the
manner provided in the Note, the Loan Agreement and this Security Instrument,
shall well and truly perform the Other Obligations as set forth in this Security
Instrument and shall well and truly abide by and comply with each and every
covenant and condition set forth herein and in the Note, the Loan Agreement and
the other Loan Documents, these presents and the estate hereby granted shall
cease, terminate and be void; provided, however, that Borrower's obligation to
indemnify and hold harmless Lender pursuant to the provisions hereof shall
survive any such payment or release.
Section 1.6 GRANTS TO BENEFICIARY. This Security Instrument and the
grants, assignments and transfers made to Beneficiary in this Article 1 shall
inure to Beneficiary solely in its capacity as Lender's nominee in accordance
with Section 16.2 below.
ARTICLE II
DEBT AND OBLIGATIONS SECURED
Section 2.1 DEBT. This Security Instrument and the grants,
assignments and transfers made in Article 1 are given for the purpose of
securing the Debt.
Section 2.2 OTHER OBLIGATIONS. This Security Instrument and the
grants, assignments and transfers made in Article 1 are also given for the
purpose of securing the performance of the following (the "OTHER OBLIGATIONS"):
(a) all other obligations of Borrower contained herein; (b) each obligation of
Borrower contained in the Loan Agreement and any other Loan Document; and (c)
each obligation of Borrower contained in any renewal, extension, amendment,
modification, consolidation, change of, or substitution or replacement for, all
or any part of the Note, the Loan Agreement or any other Loan Document.
Section 2.3 DEBT AND OTHER OBLIGATIONS. Borrower's obligations for
the payment of the Debt and the performance of the Other Obligations shall be
referred to collectively herein as the "OBLIGATIONS".
Section 2.4 PAYMENT OF DEBT. Borrower will pay the Debt at the time
and in the manner provided in the Loan Agreement, the Note and this Security
Instrument.
Section 2.5 INCORPORATION BY REFERENCE. All the covenants,
conditions and agreements contained in (a) the Loan Agreement, (b) the Note and
(c) all and any of the other Loan Documents, are hereby made a part of this
Security Instrument to the same extent and with the same force as if fully set
forth herein.
ARTICLE III
PROPERTY COVENANTS
Borrower covenants and agrees that:
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Section 3.1 INSURANCE. Borrower shall obtain and maintain, or cause
to be maintained, in full force and effect at all times insurance with respect
to Borrower and the Property as required pursuant to the Loan Agreement.
Section 3.2 TAXES. Borrower shall pay all Taxes and Other Charges
assessed or imposed against the Property or any part thereof in accordance with
the Loan Agreement.
Section 3.3 LEASES. Borrower shall not enter into any Leases for all
or any portion of the Property unless in accordance with the provisions of the
Loan Agreement.
Section 3.4 WARRANTY OF TITLE. Borrower has good, indefeasible,
marketable and insurable fee simple title to the real property comprising part
of the Property and good indefeasible and marketable title to the balance of the
Property, free and clear of all Liens whatsoever except the Permitted
Encumbrances, such other Liens as are permitted pursuant to the Loan Documents
and the Liens created by the Loan Documents. This Security Instrument, when
properly recorded in the appropriate records, together with any Uniform
Commercial Code financing statements required to be filed in connection
therewith, will create (a) a valid, perfected first priority lien on the
Property, subject only to Permitted Encumbrances and the Liens created by the
Loan Documents and (b) perfected security interests in and to, and perfected
collateral assignments of, all personalty (including the Leases), all in
accordance with the terms thereof, in each case subject only to any applicable
Permitted Encumbrances, such other Liens as are permitted pursuant to the Loan
Documents and the Liens created by the Loan Documents. Borrower shall forever
warrant, defend and preserve the title and the validity and priority of the Lien
of this Security Instrument and shall forever warrant and defend the same to
Lender against the claims of all Persons whomsoever.
Section 3.5 PAYMENT FOR LABOR AND MATERIALS. (a) Borrower will
promptly pay when due all bills and costs for labor, materials, and specifically
fabricated materials incurred in connection with the Property ("LABOR AND
MATERIAL COSTS") and never permit to exist beyond the due date thereof in
respect of the Property or any part thereof any Lien or security interest, even
though inferior to the Liens and the security interests hereof, and in any event
never permit to be created or exist in respect of the Property or any part
thereof any other or additional Lien or security interest other than the Liens
or security interests hereof except for the Permitted Encumbrances. Borrower
represents there are no claims for payment for work, labor or materials
affecting the Property which are or may become a lien prior to, or of equal
priority with, the Liens created by the Loan Documents.
(b) After prior written notice to Lender, Borrower, at its own
expense, may contest by appropriate legal proceeding, promptly initiated and
conducted in good faith and with due diligence, the amount or validity or
application in whole or in part of any of the Labor and Material Costs, provided
that (i) no Event of Default has occurred and is continuing under the Loan
Agreement, the Note, this Security Instrument or any of the other Loan
Documents, (ii) such proceeding shall suspend the collection of the Labor and
Material Costs from Borrower and from the Property or Borrower shall have paid
all of the Labor and Material Costs under protest, (iii) such proceeding shall
be permitted under and be conducted in accordance with the provisions of any
other instrument to which Borrower is subject and shall not constitute a default
thereunder, (iv) neither the Property nor any part thereof or interest therein
will be in danger of
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being sold, forfeited, terminated, canceled or lost, and (v) Borrower shall have
furnished the security as may be required in the proceeding, or as may be
reasonably requested by Lender to insure the payment of any contested Labor and
Material Costs, together with all interest and penalties thereon.
ARTICLE IV
FURTHER ASSURANCES
Section 4.1 COMPLIANCE WITH LOAN AGREEMENT. Borrower shall comply
with the covenants set forth in Article 17 of the Loan Agreement in order to
protect and perfect the Lien or security interest hereof upon, and in the
interest of Lender in, the Property.
Section 4.2 AUTHORIZATION TO FILE FINANCING STATEMENTS; POWER OF
ATTORNEY. Borrower hereby authorizes Lender at any time and from time to time to
file any initial financing statements, amendments thereto and continuation
statements with or without signature of Borrower as authorized by applicable
law, as applicable to all or part of the Personal Property. For purposes of such
filings, Borrower agrees to furnish any information reasonably requested by
Lender promptly upon request by Lender. Borrower also ratifies its authorization
for Lender to have filed any like initial financing statements, amendments
thereto or continuation statements, if filed prior to the date of this Security
Instrument. Borrower hereby irrevocably constitutes and appoints Lender and any
officer or agent of Lender, with full power of substitution, as its true and
lawful attorneys-in-fact with full irrevocable power and authority in the place
and stead of Borrower or in Borrower's own name to execute in Borrower's name
any such documents and otherwise to carry out the purposes of this Section 4.2,
to the extent that Borrower's authorization above is not sufficient and to the
extent Borrower has failed within three (3) Business Days following written
demand to sign any document expressly required to be signed by Borrower under
this Section 4.2. To the extent permitted by law, Borrower hereby ratifies all
acts said attorneys-in-fact have lawfully done in the past or shall lawfully do
or cause to be done in the future by virtue hereof. This power of attorney is a
power coupled with an interest and shall be irrevocable.
ARTICLE V
DUE ON SALE/ENCUMBRANCE
Section 5.1 NO SALE/ENCUMBRANCE. Borrower shall not cause or permit
a sale, conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment,
grant of any options with respect to, or any other transfer or disposition
(directly or indirectly, voluntarily or involuntarily, by operation of law or
otherwise, and whether or not for consideration or of record) of a legal or
beneficial interest in the Property or any part thereof, Borrower or any
Restricted Party, other than in accordance with the provisions of Article 7 of
the Loan Agreement, without the prior written consent of Lender.
ARTICLE VI
PREPAYMENT; RELEASE OF PROPERTY
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Section 6.1 PREPAYMENT. The Debt may not be prepaid in whole or in
part except in strict accordance with the express terms and conditions of the
Note and the Loan Agreement.
Section 6.2 PREPAYMENT ON CASUALTY/CONDEMNATION. Provided no Event
of Default exists under any of the Loan Documents, in the event of any
prepayment of the Debt pursuant to the terms of Article 8 or Section 17.4 of the
Loan Agreement, no prepayment premium shall be due in connection therewith, but
Borrower shall be responsible for all other amounts due under any of the Loan
Documents.
Section 6.3 INVOLUNTARY PREPAYMENT. If there is an involuntary
prepayment during the Lockout Period (as defined in the Loan Agreement), then
Borrower shall, in addition to any portion of the Loan prepaid (together with
all interest accrued and unpaid thereon), pay to Lender a prepayment premium in
an amount calculated in accordance with Section 2.4(c) of the Loan Agreement.
Section 6.4 RELEASE OF PROPERTY. Borrower shall not be entitled to a
release of any portion of the Property from the lien of this Security Instrument
except in accordance with terms and conditions of the Loan Agreement.
ARTICLE VII
DEFAULT
Section 7.1 EVENT OF DEFAULT. The term "EVENT OF DEFAULT" as used in
this Security Instrument shall have the meaning assigned to such term in the
Loan Agreement.
ARTICLE VIII
RIGHTS AND REMEDIES UPON DEFAULT
Section 8.1 REMEDIES. Upon the occurrence and during the continuance
of any Event of Default, Borrower agrees that Lender may or acting by or through
Trustee may take such action, without notice or demand, as it deems advisable to
protect and enforce its rights against Borrower and in and to the Property,
including, but not limited to, the following actions, each of which may be
pursued concurrently or otherwise, at such time and in such order as Lender or
Trustee may determine, in their sole discretion, without impairing or otherwise
affecting the other rights and remedies of Lender or Trustee:
(a) declare the entire unpaid Debt to be immediately due and
payable;
(b) institute proceedings, judicial or otherwise, for the complete
foreclosure of this Security Instrument under any applicable provision of law,
in which case the Property or any interest therein may be sold for cash or upon
credit in one or more parcels or in several interests or portions and in any
order or manner;
(c) 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
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Security Instrument for the portion of the Debt then due and payable, subject to
the continuing lien and security interest of this Security Instrument for the
balance of the Debt not then due, unimpaired and without loss of priority;
(d) sell for cash or upon credit the Property or any part thereof
and all estate, claim, demand, right, title and interest of Borrower therein and
rights of redemption thereof, pursuant to power of sale 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;
(e) institute an action, suit or proceeding in equity for the
specific performance of any covenant, condition or agreement contained herein,
in the Note, the Loan Agreement or in the other Loan Documents;
(f) recover judgment on the Note either before, during or after any
proceedings for the enforcement of this Security Instrument or the other Loan
Documents;
(g) apply for the appointment of a receiver, trustee, 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 Borrower,
Borrower Principal or any other Person liable for the payment of the Debt;
(h) the license granted to Borrower under Section 1.2 hereof shall
automatically be revoked and Lender may enter into or upon the Property, either
personally or by its agents, nominees or attorneys and dispossess Borrower and
its agents and servants therefrom, without liability for trespass, damages or
otherwise and exclude Borrower and its agents or servants wholly therefrom, and
take possession of all books, records and accounts relating thereto and Borrower
agrees to surrender possession of the Property and of such books, records and
accounts to Lender upon demand, and thereupon Lender may (i) use, operate,
manage, control, insure, maintain, repair, restore and otherwise deal with all
and every part of the Property and conduct the business thereat; (ii) complete
any construction on the Property in such manner and form as Lender deems
advisable; (iii) make alterations, additions, renewals, replacements and
improvements to or on the Property; (iv) exercise all rights and powers of
Borrower with respect to the Property, whether in the name of Borrower or
otherwise, including, without limitation, the right to make, cancel, enforce or
modify Leases, obtain and evict tenants, and demand, ▇▇▇ for, collect and
receive all Rents of the Property and every part thereof; (v) require Borrower
to pay monthly in advance to Lender, or any receiver appointed to collect the
Rents, the fair and reasonable rental value for the use and occupation of such
part of the Property as may be occupied by Borrower; (vi) require Borrower to
vacate and surrender possession of the Property to Lender or to such receiver
and, in default thereof, Borrower may be evicted by summary proceedings or
otherwise; and (vii) apply the receipts from the Property to the payment of the
Debt, in such order, priority and proportions as Lender shall deem appropriate
in its sole discretion after deducting therefrom all expenses (including
reasonable attorneys' fees) incurred in connection with the aforesaid operations
and all amounts necessary to pay the Taxes, Other Charges, insurance and other
expenses in connection with the Property, as well as just and reasonable
compensation for the services of Lender, its counsel, agents and employees;
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(i) exercise any and all rights and remedies granted to a secured
party upon default under the Uniform Commercial Code, including, without
limiting the generality of the foregoing: (i) the right to take possession of
the Personal Property or any part thereof, and to take such other measures as
Lender or Trustee may deem necessary for the care, protection and preservation
of the Personal Property, and (ii) request Borrower at its expense to assemble
the Personal Property and make it available to Lender at a convenient place
acceptable to Lender. Any notice of sale, disposition or other intended action
by Lender or Trustee with respect to the Personal Property sent to Borrower in
accordance with the provisions hereof at least five (5) days prior to such
action shall constitute commercially reasonable notice to Borrower;
(j) apply any sums then deposited or held in escrow or otherwise by
or on behalf of Lender in accordance with the terms of the Loan Agreement, this
Security Instrument or any other Loan Document to the payment of the following
items in any order in its uncontrolled discretion: (i) Taxes and Other Charges;
(ii) Insurance Premiums; (iii) interest on the unpaid principal balance of the
Note; (iv) amortization of the unpaid principal balance of the Note; (v) all
other sums payable pursuant to the Note, the Loan Agreement, this Security
Instrument and the other Loan Documents, including without limitation advances
made by Lender pursuant to the terms of this Security Instrument;
(k) if expressly permitted by the Policies, surrender the Policies
maintained pursuant to the Loan Agreement, collect the unearned insurance
premiums for the Policies and apply such sums as a credit on the Debt in such
priority and proportion as Lender in its discretion shall deem proper, and in
connection therewith, Borrower hereby appoints Lender as agent and
attorney-in-fact (which is coupled with an interest and is therefore
irrevocable) for Borrower to collect such insurance premiums;
(l) apply the undisbursed balance of any Net Proceeds Deficiency
deposit, together with interest thereon, to the payment of the Debt in such
order, priority and proportions as Lender shall deem to be appropriate in its
discretion; or
(m) pursue such other remedies as Lender may have under applicable
law.
In the event of a sale, by foreclosure, power of sale or otherwise, of less than
all of Property, this Security Instrument shall continue as a lien and security
interest on the remaining portion of the Property unimpaired and without loss of
priority. Notwithstanding the provisions of this Section to the contrary, if any
Event of Default as described in Section 11.1(f) of the Loan Agreement shall
occur, the entire unpaid Debt shall be automatically due and payable, without
any further notice, demand or other action by Beneficiary.
Section 8.2 APPLICATION OF PROCEEDS. The purchase money, proceeds
and avails of any disposition of the Property, and or any part thereof, or any
other sums collected by Lender pursuant to the Note, this Security Instrument or
the other Loan Documents, may be applied by Lender to the payment of the Debt in
such priority and proportions as Lender in its discretion shall deem proper.
Section 8.3 RIGHT TO CURE DEFAULTS. Upon the occurrence and during
the continuance of any Event of Default, Lender may, but without any obligation
to do so and
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without notice to or demand on Borrower and without releasing Borrower from any
obligation hereunder, make any payment or do any act required of Borrower
hereunder in such manner and to such extent as Lender may deem necessary to
protect the security hereof. Lender or Trustee 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 Security
Instrument or collect the Debt, and the cost and expense thereof (including
reasonable attorneys' fees to the extent permitted by law), with interest as
provided in this Section 8.3, shall constitute a portion of the Debt and shall
be due and payable to Lender upon demand. All such costs and expenses incurred
by Lender or Trustee in remedying such Event of Default or such failed payment
or act or in appearing in, defending, or bringing any such action or proceeding
shall bear interest at the Default Rate, for the period after notice from Lender
that such cost or expense was incurred to the date of payment to Lender. All
such costs and expenses incurred by Lender together with interest thereon
calculated at the Default Rate shall be deemed to constitute a portion of the
Debt and be secured by this Security Instrument and the other Loan Documents and
shall be immediately due and payable upon demand by Lender therefor.
Section 8.4 ACTIONS AND PROCEEDINGS. Lender or Trustee 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
Borrower, which Lender, in its discretion, decides should be brought to protect
its interest in the Property.
Section 8.5 RECOVERY OF SUMS REQUIRED TO BE PAID. Subject to Article
15 of the Loan Agreement, Lender shall have the right from time to time to take
action to recover any sum or sums which constitute a part of the Debt as the
same become due, without regard to whether or not the balance of the Debt shall
be due, and without prejudice to the right of Lender thereafter to bring an
action of foreclosure, or any other action, for a default or defaults by
Borrower existing at the time such earlier action was commenced.
Section 8.6 OTHER RIGHTS, ETC. (a) The failure of Lender,
Beneficiary or Trustee to insist upon strict performance of any term hereof
shall not be deemed to be a waiver of any term of this Security Instrument.
Borrower shall not be relieved of Borrower's obligations hereunder by reason of
(i) the failure of Lender, Beneficiary or Trustee to comply with any request of
Borrower or any guarantor or indemnitor with respect to the Loan to take any
action to foreclose this Security Instrument or otherwise enforce any of the
provisions hereof or of the Note or the other Loan Documents, (ii) the release,
regardless of consideration, of the whole or any part of the Property, or of any
person liable for the Debt or any portion thereof, or (iii) any agreement or
stipulation by Lender extending the time of payment or otherwise modifying or
supplementing the terms of the Note, this Security Instrument or the other Loan
Documents.
(b) It is agreed that the risk of loss or damage to the Property is
on Borrower, and Lender shall have no liability whatsoever for decline in the
value of the Property, for failure to maintain the Policies, or for failure to
determine whether insurance in force is adequate as to the amount of risks
insured. Possession by Lender shall not be deemed an election of judicial relief
if any such possession is requested or obtained with respect to any Property or
collateral not in Lender's possession.
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(c) Lender may resort for the payment of the Debt to any other
security held by Lender in such order and manner as Lender, in its discretion,
may elect. Lender or Trustee may take action to recover the Debt, or any portion
thereof, or to enforce any covenant hereof without prejudice to the right of
Lender or Trustee thereafter to foreclose this Security Instrument. The rights
of Lender or Trustee under this Security Instrument shall be separate, distinct
and cumulative and none shall be given effect to the exclusion of the others. No
act of Lender, Beneficiary or Trustee shall be construed as an election to
proceed under any one provision herein to the exclusion of any other provision.
Neither Lender, Beneficiary nor Trustee shall not be limited exclusively to the
rights and remedies herein stated but shall be entitled to every right and
remedy now or hereafter afforded at law or in equity.
Section 8.7 RIGHT TO RELEASE ANY PORTION OF THE PROPERTY. Lender may
release any portion of the Property for such consideration as Lender may require
without, as to the remainder of the Property, in any way impairing or affecting
the lien or priority of this Security Instrument, or improving the position of
any subordinate lienholder with respect thereto, except to the extent that the
obligations hereunder shall have been reduced by the actual monetary
consideration, if any, received by Lender for such release, and may accept by
assignment, pledge or otherwise any other property in place thereof as Lender
may require without being accountable for so doing to any other lienholder. This
Security Instrument shall continue as a lien and security interest in the
remaining portion of the Property.
Section 8.8 RIGHT OF ENTRY. Upon reasonable advance notice to
Borrower and subject to the rights of Tenants under Leases, Lender and its
agents shall have the right to enter and inspect the Property at all reasonable
times.
Section 8.9 BANKRUPTCY. (a) Upon or at any time after the occurrence
of an Event of Default, Lender shall have the right to proceed in its own name
or in the name of Borrower in respect of any claim, suit, action or proceeding
relating to the rejection of any Lease, including, without limitation, the right
to file and prosecute, to the exclusion of Borrower, any proofs of claim,
complaints, motions, applications, notices and other documents, in any case in
respect of the lessee under such Lease under the Bankruptcy Code.
(b) If there shall be filed by or against Borrower a petition under
11 U.S.C. ss.101 et seq., as the same may be amended from time to time (the
"BANKRUPTCY CODE"), and Borrower, as lessor under any Lease, shall determine to
reject such Lease pursuant to Section 365(a) of the Bankruptcy Code, then
Borrower shall give Lender not less than ten (10) days' prior notice of the date
on which Borrower shall apply to the bankruptcy court for authority to reject
the Lease. Lender shall have the right, but not the obligation, to serve upon
Borrower within such ten-day period a notice stating that (i) Lender demands
that Borrower assume and assign the Lease to Lender pursuant to Section 365 of
the Bankruptcy Code and (ii) Lender covenants to cure or provide adequate
assurance of future performance under the Lease. If Lender serves upon Borrower
the notice described in the preceding sentence, Borrower shall not seek to
reject the Lease and shall comply with the demand provided for in clause (i) of
the preceding sentence within thirty (30) days after the notice shall have been
given, subject to the performance by Lender of the covenant provided for in
clause (ii) of the preceding sentence.
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Section 8.10 SUBROGATION. If any or all of the proceeds of the Note
have been used to extinguish, extend or renew any indebtedness heretofore
existing against the Property, then, to the extent of the funds so used, Lender
shall be subrogated to all of the rights, claims, liens, titles, and interests
existing against the Property heretofore held by, or in favor of, the holder of
such indebtedness and such former rights, claims, liens, titles, and interests,
if any, are not waived but rather are continued in full force and effect in
favor of Lender and are merged with the lien and security interest created
herein as cumulative security for the repayment of the Debt, the performance and
discharge of Borrower's obligations hereunder, under the Loan Agreement, the
Note and the other Loan Documents and the performance and discharge of the Other
Obligations.
ARTICLE IX
ENVIRONMENTAL HAZARDS
Section 9.1 ENVIRONMENTAL COVENANTS. Borrower has provided
representations and warranties regarding environmental matters set forth in
Section 12.1 of the Loan Agreement and shall comply with the covenants regarding
environmental matters set forth in Section 12.2 of the Loan Agreement.
Section 9.2 LENDER'S RIGHTS. Lender and any other person or entity
designated by Lender, including but not limited to any representative of a
Governmental Authority, and any environmental consultant, and any receiver
appointed by any court of competent jurisdiction, shall have the right, but not
the obligation, to enter upon the Property at all reasonable times (subject to
rights of Tenants under Leases) to assess any and all aspects of the
environmental condition of the Property and its use, including but not limited
to conducting any environmental assessment or audit (the scope of which shall be
determined in Lender's reasonable discretion, provided that no materially
invasive testing may be performed without reasonable indemnities and evidence of
reasonable liability coverage from the engineer performing such testing) and
taking samples of soil, groundwater or other water, air, or building materials,
and conducting other invasive testing. Borrower shall cooperate with and provide
access to Lender and any such person or entity designated by Lender.
ARTICLE X
WAIVERS
Section 10.1 MARSHALLING AND OTHER MATTERS. Borrower hereby waives,
to the extent permitted by law, the benefit of all Legal Requirements now or
hereafter in force regarding appraisement, valuation, stay, extension,
reinstatement and redemption and all rights of marshalling in the event of any
sale hereunder of the Property or any part thereof or any interest therein.
Further, Borrower hereby expressly waives any and all rights of redemption from
sale under any order or decree of foreclosure of this Security Instrument on
behalf of Borrower, and on behalf of each and every person acquiring any
interest in or title to the Property subsequent to the date of this Security
Instrument and on behalf of all persons to the extent permitted by Legal
Requirements.
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Section 10.2 WAIVER OF NOTICE. Borrower shall not be entitled to any
notices of any nature whatsoever from Lender, Beneficiary or Trustee except with
respect to matters for which this Security Instrument or the Loan Agreement
specifically and expressly provides for the giving of notice by Lender,
Beneficiary or Trustee to Borrower and except with respect to matters for which
Borrower is not permitted by Legal Requirements to waive its right to receive
notice, and Borrower hereby expressly waives the right to receive any notice
from Lender or Beneficiary with respect to any matter for which this Security
Instrument does not specifically and expressly provide for the giving of notice
by Lender, Beneficiary or Trustee to Borrower.
Section 10.3 WAIVER OF STATUTE OF LIMITATIONS. Borrower hereby
expressly waives and releases to the fullest extent permitted by law, the
pleading of any statute of limitations as a defense to payment of the Debt or
performance of its Other Obligations.
Section 10.4 SOLE DISCRETION OF LENDER. Whenever pursuant to this
Security Instrument, Lender exercises any right given to it to approve or
disapprove, or any arrangement or term is to be satisfactory to Lender, the
decision of Lender to approve or disapprove or to decide whether arrangements or
terms are satisfactory or not satisfactory shall (except as is otherwise
specifically herein provided) be in the sole discretion of Lender and shall be
final and conclusive.
Section 10.5 WAIVER OF TRIAL BY JURY. BORROWER AND LENDER EACH
HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY
JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH
RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE LOAN DOCUMENTS, OR ANY
CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER
OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER AND
LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE
AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH OF LENDER
AND BORROWER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY
PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER AND LENDER.
Section 10.6 WAIVER OF FORECLOSURE DEFENSE. Borrower hereby waives
any defense Borrower might assert or have by reason of Lender's failure to make
any tenant or lessee of the Property a party defendant in any foreclosure
proceeding or action instituted by Lender.
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ARTICLE XI
EXCULPATION
The provisions of Article 15 of the Loan Agreement are hereby
incorporated by reference into this Security Instrument to the same extent and
with the same force as if fully set forth herein. ARTICLE XII
NOTICES
All notices, consents, approvals and requests required or permitted
hereunder or under any other Loan Document shall be given in writing and shall
be effective for all purposes if hand delivered or sent by (a) certified or
registered United States mail, postage prepaid, return receipt requested, (b)
expedited prepaid overnight delivery service, either commercial or United States
Postal Service, with proof of attempted delivery, or by (c) telecopier (with
answer back acknowledged provided an additional notice is given pursuant to
subsection (b) above), addressed as follows (or at such other address and Person
as shall be designated from time to time by any party hereto, as the case may
be, in a written notice to the other parties hereto in the manner provided for
in this Section):
If to Lender: MERS Commercial
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Secretary
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Trustee: PRLAP, Inc.
c/o Capital Markets Servicing Group
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Mail Code: NC1-026-06-01
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Borrower: ▇▇▇▇▇▇▇ Plaza Associates, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: President and Chief Financial Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
15
With a copy to: Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, PC
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
A notice shall be deemed to have been given: in the case of hand
delivery, at the time of delivery; in the case of registered or certified mail,
when delivered or the first attempted delivery on a Business Day; or in the case
of expedited prepaid delivery and telecopy, upon the first attempted delivery on
a Business Day.
ARTICLE XIII
APPLICABLE LAW
Section 13.1 GOVERNING LAW. This Security Instrument shall be deemed
to be a contract entered into pursuant to the laws of the State of New York and
shall in all respects be governed, construed, applied and enforced in accordance
with the laws of the State of New York, provided however, that with respect to
the creation, perfection, priority and enforcement of the lien of this Security
Instrument, and the determination of deficiency judgments, the laws of the state
where the Property is located shall apply.
Section 13.2 PROVISIONS SUBJECT TO APPLICABLE LAW. All rights,
powers and remedies provided in this Security Instrument may be exercised only
to the extent that the exercise thereof does not violate any applicable
provisions of law and are intended to be limited to the extent necessary so that
they will not render this Security Instrument invalid, unenforceable or not
entitled to be recorded, registered or filed under the provisions of any
applicable law. If any term of this Security Instrument or any application
thereof shall be invalid or unenforceable, the remainder of this Security
Instrument and any other application of the term shall not be affected thereby.
ARTICLE XIV
DEFINITIONS
Unless the context clearly indicates a contrary intent or unless
otherwise specifically provided herein, words used in this Security Instrument
may be used interchangeably in singular or plural form and the word "Borrower"
shall mean "each Borrower and any subsequent owner or owners of the Property or
any part thereof or any interest therein," the word "Lender" shall mean "Lender
and any subsequent holder of the Note," the word "Trustee" shall mean "Trustee
and any substitute Trustee of the estates, properties, powers, trusts and rights
conferred upon Trustee pursuant to this Security Instrument," the word "Note"
shall mean "the Note and any other evidence of indebtedness secured by this
Security Instrument," the word "Property" shall include any portion of the
Property and any interest therein, and the phrases "attorneys' fees", "legal
fees" and "counsel fees" shall include any and all attorneys', paralegal and law
clerk fees and disbursements, including, but not limited to, fees and
disbursements at the
16
pre-trial, trial and appellate levels incurred or paid by Lender in protecting
its interest in the Property, the Leases and the Rents and enforcing its rights
hereunder.
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.1 NO ORAL CHANGE. This Security Instrument, and any
provisions hereof, may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on the part of
Borrower or Lender, but only by an agreement in writing signed by the party
against whom enforcement of any modification, amendment, waiver, extension,
change, discharge or termination is sought.
Section 15.2 SUCCESSORS AND ASSIGNS. This Security Instrument shall
be binding upon and inure to the benefit of Beneficiary and Lender and their
respective successors and assigns forever.
Section 15.3 INAPPLICABLE PROVISIONS. If any term, covenant or
condition of the Loan Agreement, the Note or this Security Instrument is held to
be invalid, illegal or unenforceable in any respect, the Loan Agreement, the
Note and this Security Instrument shall be construed without such provision.
Section 15.4 HEADINGS, ETC. The headings and captions of various
Sections of this Security Instrument 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.
Section 15.5 NUMBER AND GENDER. Whenever the context may require,
any pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural and vice versa.
Section 15.6 ENTIRE AGREEMENT. This Security Instrument and the
other Loan Documents contain the entire agreement of the parties hereto and
thereto in respect of the transactions contemplated hereby and thereby, and all
prior agreements among or between such parties, whether oral or written between
Borrower and Lender are superseded by the terms of this Security Instrument and
the other Loan Documents.
Section 15.7 LIMITATION ON LENDER'S RESPONSIBILITY. No provision of
this Security Instrument shall operate to place any obligation or liability for
the control, care, management or repair of the Property upon Lender or
Beneficiary, nor shall it operate to make Lender or Beneficiary responsible or
liable for any waste committed on the Property by the tenants or any other
Person, or for any dangerous or defective condition of the Property, or for any
negligence in the management, upkeep, repair or control of the Property
resulting in loss or injury or death to any tenant, licensee, employee or
stranger. Nothing herein contained shall be construed as constituting Lender or
Beneficiary a "mortgagee in possession."
Section 15.8 CONFLICT. If any provision of this Security Instrument
shall conflict with any provision of the Loan Agreement the provisions of the
Loan Agreement shall control.
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ARTICLE XVI
STATE-SPECIFIC PROVISIONS
Section 16.1 PRINCIPLES OF CONSTRUCTION. In the event of any
inconsistencies between the terms and conditions of this Article XVI and the
terms and conditions of this Security Instrument, the terms and conditions of
this Article XVI shall control and be binding.
Section 16.2 ASSIGNMENT OF LEASES AND RENTS AMENDED. The assignments
of Leases and Rents set forth in this Security Instrument are not intended to
constitute payment to Lender or Trustee unless Borrower's license to collect
Rents is terminated, and then only to the extent that the Rents are actually
received by Lender (as opposed to constituting a portion of the voluntary
payments of principal and interest on the Note) and are not used for the
operation or maintenance of the Property or for the payment of costs and
expenses in connection therewith, taxes, assessments, water charges, sewer
rents, and other charges levied, assessed or imposed against the Property,
insurance premiums, costs and expenses with respect to any litigation affecting
the Property, the leases, the concessions, and the rent, any wages and salaries
of employees, commissions of agents and attorneys fees. It is further the intent
of Borrower and Lender that the Rents hereby absolutely assigned are no longer,
during the term of this Security Instrument, property of Borrower or property of
any estate of Borrower or of Borrower as defined in 11 U.S.C. ss. 541 and shall
not constitute collateral, cash or otherwise, of Borrower or of Borrower. The
term Rents as used herein shall mean the gross rents without deduction or
offsets of any kind.
Section 16.3 ADDITIONAL REMEDY PROVISIONS.
(a) DELIVERY UPON SALE. Upon the completion of any sale or sales
pursuant hereto, Trustee 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 by general warranty of title. Trustee is
hereby irrevocably appointed the true and lawful attorney of Borrower, in its
name and stead, to make all necessary conveyances, assignments, transfers and
deliveries of the Property and rights so sold and for that purpose Trustee may
execute all necessary instruments of conveyance, assignment and transfer, and
may substitute one or more persons with like power, Borrower hereby ratifying
and confirming all that its said attorney or such substitute or substitutes
shall lawfully do by virtue hereof. Any sale or sales made under or by virtue of
this section, 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 Borrower in and to the
properties and rights so sold, and shall be a perpetual bar both at law and in
equity against Borrower and against any and all persons claiming or who may
claim the same, or any part thereof from, through or under Borrower.
(b) OPTION TO BID. Upon any sale made under or by virtue of this
paragraph, whether made under the power of sale herein granted or under or by
virtue of judicial proceedings or of a judgment or decree of foreclosure and
sale, Lender may bid for and acquire
18
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 Lender is authorized to deduct under this Security
Instrument.
(c) REMAINING LIENS. No recovery of any judgment by Lender and no
levy of an execution under any judgment upon the Property or upon any other
property of Borrower shall affect in any manner or to any extent the lien of
this Security Instrument upon the Property or any part thereof, or any liens,
rights, powers or remedies of Lender hereunder, but such liens, rights, powers
and remedies of Lender shall continue unimpaired as before.
(d) NO WAIVER OF REMEDIES. Lender may resort to any remedies and the
security given by the Note, the Loan Agreement, this Security Instrument or the
other Loan Documents in whole or in part, and in such portions and in such order
as determined by Lender's sole discretion. No such action shall in any way be
considered a waiver of any rights, benefits or remedies evidenced or provided by
the Note, the Loan Agreement, this Security Instrument or any of the other Loan
Documents. The failure of Lender to exercise any right, remedy or option
provided in the Note, the Loan Agreement, this Security Instrument or any of the
other Loan Documents shall not be deemed a waiver of such right, remedy or
option or of any covenant or obligation secured by the Note, the Loan Agreement,
this Security Instrument or the other Loan Documents. No acceptance by Lender of
any payment after the occurrence of any Event of Default and no payment by
Lender of any obligation for which Borrower is liable hereunder shall be deemed
to waive or cure any Event of Default with respect to Borrower, or Borrower's
liability to pay such obligation. No sale of all or any portion of the Property,
no forbearance on the part of Lender, and no extension of time for the payment
of the whole or any portion of the Debt or any other indulgence given by Lender
to Borrower, shall operate to release or in any manner affect the interest of
Lender in the remaining Property or the liability of Borrower to pay the Debt.
No waiver by Lender shall be effective unless it is in writing and then only to
the extent specifically stated. All costs and expenses of Lender in exercising
its rights and remedies under this Security Instrument (including reasonable
attorneys' fees and disbursements to the extent permitted by law), shall be paid
by Borrower immediately upon notice from Lender, and such costs and expenses
shall constitute a portion of the Debt and shall be secured by this Security
Instrument.
(e) NO WAIVER CONTINUED. The interests and rights of Lender under
the Note, the Loan Agreement, this Security Instrument or in any of the other
Loan Documents shall not be impaired by any indulgence, including (A) any
renewal, extension or modification which Lender may grant with respect to any of
the Debt, (B) any surrender, compromise, release, renewal, extension, exchange
or substitution which Lender may grant with respect to the Property or any
portion thereof; or (C) any release or indulgence granted to any maker,
endorser, guarantor or surety of any of the Debt.
(f) FORECLOSURE. Upon the occurrence and during the continuance of
any Event of Default, Lender may request Trustee to proceed with foreclosure
under the power of sale which is hereby conferred, such foreclosure to be
accomplished in accordance with the following provisions:
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(i) PUBLIC SALE. Trustee is hereby authorized and empowered,
and it shall be Trustee's special duty, upon such request of Lender, to
sell the Property, or any part thereof, at public auction to the highest
bidder for cash, with or without having taken possession of same. Any
such sale (including notice thereof) shall comply with the applicable
requirements, at the time of the sale, of Section 51.002 of the Texas
Property Code or, if and to the extent such statute is not then in
force, with the applicable requirements, at the time of the sale, of the
successor statute or statutes, if any, governing sales of Texas real
property under powers of sale conferred by deeds of trust. If there is
no statute in force at the time of the sale governing sales of Texas
real property under powers of sale conferred by deeds of trust, such
sale shall comply with applicable law, at the time of the sale,
governing sales of Texas real property under powers of sale conferred by
deeds of trust. Trustee or his successor or substitute may appoint or
delegate any one or more persons as agent to perform any act or acts
necessary or incident to any sale held by Trustee, including the posting
of notices, and the conduct of sale, but in the name and on behalf of
Trustee, his successor or substitute.
(ii) RIGHT TO REQUIRE PROOF OF FINANCIAL ABILITY AND/OR CASH
BID. To the extent permitted by applicable law, any time during the
bidding, the Trustee may require a bidding party (A) to disclose its
full name, state and city of residence, occupation, and specific
business office location, and the name and address of the principal the
bidding party is representing (if applicable), and (B) to demonstrate
reasonable evidence of the bidding party's financial ability (or, if
applicable, the financial ability of the principal of such bidding
party), as a condition to the bidding party submitting bids at the
foreclosure sale. If any such bidding party (the "QUESTIONED BIDDER")
declines to comply with the Trustee's requirement in this regard, or if
such Questioned Bidder does respond but the Trustee, in Trustee's sole
and absolute discretion, deems the information or the evidence of the
financial ability of the Questioned Bidder (or, if applicable, the
principal of such bidding party) to be inadequate, then the Trustee may
continue the bidding with reservation; and in such event (1) the Trustee
shall be authorized to caution the Questioned Bidder concerning the
legal obligations to be incurred in submitting bids, and (2) if the
Questioned Bidder is not the highest bidder at the sale, or if having
been the highest bidder the Questioned Bidder fails to deliver the cash
purchase price payment promptly to the Trustee, all bids by the
Questioned Bidder shall be null and void. The Trustee may, in Trustee's
sole and absolute discretion, determine that a credit bid may be in the
best interest of the Borrower and Lender, and elect to sell the Property
for credit or for a combination of cash and credit; provided, however,
that the Trustee shall have no obligation to accept any bid except an
all cash bid. In the event the Trustee requires a cash bid and cash is
not delivered within a reasonable time after conclusion of the bidding
process, as specified by the Trustee, but in no event later than 3:45
p.m. local time on the day of sale, then said contingent sale shall be
null and void, the bidding process may be recommenced, and any
subsequent bids or sale shall be made as if no prior bids were made or
accepted.
(iii) SALE SUBJECT TO UNMATURED DEBT. In addition to the
rights and powers of sale granted under the preceding provisions of this
subsection (f), if default is made in the payment of any installment of
the Debt and is not cured within applicable cure periods, Lender may, at
Lender's option, at once or at any time thereafter while any matured
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installment remains unpaid, without declaring the entire Debt to be due
and payable, orally or in writing direct Trustee to enforce this
Security Instrument and to sell the Property subject to such unmatured
Debt and to the rights, powers, liens, security interests, and
assignments securing or providing recourse for payment of such unmatured
Debt, in the same manner, all as provided in the preceding provisions of
this subsection. Sales made without maturing the Debt may be made
hereunder whenever there is a default in the payment of any installment
of the Debt, without exhausting the power of sale granted hereby, and
without affecting in any way the power of sale granted under this
subsection, the unmatured balance of the Debt or the rights, powers,
liens, security interests, and assignments securing or providing
recourse for payment of the Debt.
(iv) PARTIAL FORECLOSURE. Sale of a part of the Property
shall not exhaust the power of sale, but sales may be made from time to
time until the Debt is paid in full. It is intended by each of the
foregoing provisions of this subsection that Trustee may, after any
request or direction by Lender, sell not only the Land and the
Improvements, but also the Fixtures and other interests constituting a
part of the Property or any part thereof, along with the Land and the
Improvements or any part thereof, as a unit and as a part of a single
sale, or may sell at any time or from time to time any part or parts of
the Property separately from the remainder of the Property. It shall not
be necessary to have present or to exhibit any of the Property at any
sale. Any sale of personal property made hereunder shall be deemed to
have been a public sale conducted in a commercially reasonable manner if
held contemporaneously with, or as part of, and upon the same notice as
required for the sale of real property under the power of sale granted
herein.
(v) TRUSTEE'S DEEDS. After any sale under this subsection,
Trustee shall make good and sufficient deeds, assignments, and other
conveyances to the purchaser or purchasers thereunder in the name of
Borrower, conveying the Property or any part thereof so sold to the
purchaser or purchasers with general warranty of title by Borrower. It
is agreed that in any deeds, assignments or other conveyances given by
Trustee, any and all statements of fact or other recitals therein made
as to the identity of Lender, the occurrence or existence of any Event
of Default, the notice of intention to accelerate, or acceleration of,
the maturity of the Debt, the request to sell, notice of sale, time,
place, terms and manner of sale, and receipt, distribution, and
application of the money realized therefrom, the due and proper
appointment of a substitute trustee, and without being limited by the
foregoing, any other act or thing having been duly done by or on behalf
of Lender or by or on behalf of Trustee, shall be taken by all courts of
law and equity as PRIMA FACIE evidence that such statements or recitals
state true, correct, and complete facts and Borrower does hereby ratify
and confirm any and all acts that Trustee may lawfully do in the
premises by virtue hereof.
Section 16.4 INAPPLICABILITY OF CREDIT CODE. In no event shall the
provisions of Chapter 346 of the Texas Finance Code (which regulates certain
revolving credit loan accounts and revolving triparty accounts) apply to the
loan evidenced by the Loan Documents and/or secured hereby.
Section 16.5 ENTIRE AGREEMENT. THIS SECURITY INSTRUMENT AND THE
OTHER LOAN DOCUMENTS EMBODY THE FINAL, ENTIRE AGREEMENT
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AMONG THE PARTIES HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS,
AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED OR
VARIED BY EVIDENCE OR PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR
DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE
PARTIES HERETO.
Section 16.6 MATURITY DATE. The obligations under the Note have an
initial maturity date to occur on or before April 1, 2015.
Section 16.7 NOTICE OF INDEMNIFICATION. BORROWER ACKNOWLEDGES THAT
THIS SECURITY INSTRUMENT PROVIDES FOR INDEMNIFICATION OF LENDER AND TRUSTEE BY
BORROWER. EXCEPT FOR THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BAD FAITH, FRAUD,
OR ILLEGAL ACTS OF LENDER, ITS AGENTS, EMPLOYEES OR CONTRACTORS WHICH SHALL BE
EXCLUDED FROM THE INDEMNIFICATION OF BORROWER, IT IS SPECIFICALLY INTENDED BY
BORROWER, LENDER, AND TRUSTEE THAT ALL INDEMNITY DEBT AND LIABILITIES ASSUMED BY
BORROWER HEREUNDER BE WITHOUT LIMIT AND WITHOUT REGARD TO THE CAUSE OR CAUSES
THEREOF (INCLUDING PREEXISTING CONDITIONS), STRICT LIABILITY, OR THE NEGLIGENCE
OF ANY PARTY OR PARTIES (INCLUDING LENDER AND TRUSTEE) WHETHER SUCH NEGLIGENCE
BE SOLE, JOINT OR CONCURRENT, OR PASSIVE. THE PARTIES SPECIFICALLY INTEND THAT
LENDER AND TRUSTEE ARE TO BE INDEMNIFIED AGAINST THEIR OWN NEGLIGENCE.
Section 16.8 FUTURE ADVANCES. This Security Instrument shall secure
any and all future advances of the proceeds of the Loan made to Borrower by
Lender pursuant to the terms of the Loan Agreement. This provision shall not
constitute an obligation upon or commitment of Lender to make additional
advances or loans to Borrower.
Section 16.9 LOCATION, STATE OF FORMATION AND NAME OF BORROWER.
(i) chief executive office is located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇;
(ii) state of formation is the State of Delaware; and
(iii) exact legal name is as set forth in the first paragraph
of this Deed of Trust.
ARTICLE XVII
STATUS OF BORROWER
SECTION 17.1 STATUS OF BORROWER. Borrower's exact legal name is
correctly set forth in the first paragraph of this Security Instrument and the
signature block at the
22
end of this Security Instrument. Borrower is an organization of the type
specified in the first paragraph of this Security Instrument. Borrower is
incorporated in or organized under the laws of the state specified in the first
paragraph of this Security Instrument. Borrower's principal place of business
and chief executive office, and the place where Borrower keeps its books and
records, including recorded data of any kind or nature, regardless of the medium
or recording, including software, writings, plans, specifications and
schematics, has been for the preceding four months (or, if less, the entire
period of the existence of Borrower) the address of Borrower set forth on the
first page of this Security Instrument. Borrower's organizational identification
number, if any, assigned by the state of incorporation or organization is
correctly set forth on the first page of this Security Instrument. Borrower will
not change or permit to be changed (a) Borrower's name, (b) Borrower's identity
(including its trade name or names), (c) Borrower's principal place of business
set forth on the first page of this Security Instrument, (d) the corporate,
partnership or other organizational structure of Borrower, (e) Borrower's state
of organization, or (f) Borrower's organizational number, without notifying
Lender of such change in writing at least thirty (30) days prior to the
effective date of such change and, in the case of a change in Borrower's
structure, without first obtaining the prior written consent of Lender. If
Borrower does not now have an organizational identification number and later
obtains one, Borrower promptly shall notify the Lender of such organizational
identification number.
Section 17.2 BENEFICIARY AS NOMINEE. (a) Beneficiary is acting as
nominee under certain agreements by and between Lender and Beneficiary as the
same may have been or may be amended, restated, replaced, supplemented or
otherwise modified from time to time.
(b) Notwithstanding anything to the contrary contained herein or in
any other Loan Document, all references herein and in any other Loan Document to
"Lender" shall be deemed to collectively or individually (as the context
requires) refer to Lender or to Beneficiary acting on behalf of and at the sole
direction of Lender in its capacity as Lender's nominee.
(c) Unless Lender, in its sole discretion, shall determine
otherwise, only Lender (and not Beneficiary) shall be deemed to be "Lender" with
respect to (i) any consent, determination or similar approval right granted to
Lender under the Loan Documents (including, without limitation, any consent or
similar approval right that is deemed granted if not approved or denied within a
specified time period), (ii) any items, documents or other information required
to be delivered to Lender under the Loan Documents (other than notices) or (iii)
any future funding or other obligations of Lender to Borrower or any affiliate
of Borrower under the Loan Documents, if any.
ARTICLE XVIII
DEED OF TRUST PROVISIONS
Section 18.1 CONCERNING THE TRUSTEE. Trustee shall be under no duty
to take any action hereunder except as expressly required hereunder or by law,
or to perform any act which would involve Trustee in any expense or liability or
to institute or defend any suit in respect hereof, unless properly indemnified
to Trustee's reasonable satisfaction. Trustee, by acceptance of this Security
Instrument, covenants to perform and fulfill the trusts herein created,
23
being liable, however, only for gross negligence or willful misconduct, and
hereby waives any statutory fee and agrees to accept reasonable compensation, in
lieu thereof, for any services rendered by Trustee in accordance with the terms
hereof. Trustee may resign at any time upon giving thirty (30) days' notice to
Borrower, Beneficiary and Lender. Lender may remove Trustee at any time or from
time to time and select a successor trustee. In the event of the death, removal,
resignation, refusal to act, or inability to act of Trustee, or in its sole
discretion for any reason whatsoever Lender may, without notice and without
specifying any reason therefor and without applying to any court, select and
appoint a successor trustee, by an instrument recorded wherever this Security
Instrument is recorded and all powers, rights, duties and authority of Trustee,
as aforesaid, shall thereupon become vested in such successor. Such substitute
trustee shall not be required to give bond for the faithful performance of the
duties of Trustee hereunder unless required by Lender. The procedure provided
for in this paragraph for substitution of Trustee shall be in addition to and
not in exclusion of any other provisions for substitution, by law or otherwise.
Section 18.2 TRUSTEE'S FEES. Borrower shall pay all reasonable
costs, fees and expenses incurred by Trustee and Trustee's agents and counsel in
connection with the performance by Trustee of Trustee's duties hereunder and all
such costs, fees and expenses shall be secured by this Security Instrument.
Section 18.3 CERTAIN RIGHTS. With the approval of Lender, Trustee
shall have the right to take any and all of the following actions: (i) to
select, employ, and advise with counsel (who may be, but need not be, counsel
for Lender) upon any matters arising hereunder, including the preparation,
execution, and interpretation of the Note, this Security Instrument or the Other
Security Documents, and shall be fully protected in relying as to legal matters
on the advice of counsel, (ii) to execute any of the trusts and powers hereof
and to perform any duty hereunder either directly or through his/her agents or
attorneys, (iii) to select and employ, in and about the execution of his/her
duties hereunder, suitable accountants, engineers and other experts, agents and
attorneys-in-fact, either corporate or individual, not regularly in the employ
of Trustee, and Trustee shall not be answerable for any act, default,
negligence, or misconduct of any such accountant, engineer or other expert,
agent or attorney-in-fact, if selected with reasonable care, or for any error of
judgment or act done by Trustee in good faith, or be otherwise responsible or
accountable under any circumstances whatsoever, except for Trustee's gross
negligence or bad faith, and (iv) any and all other lawful action as Lender and
Beneficiary may instruct Trustee to take to protect or enforce Lender's and
Beneficiary's rights hereunder. Trustee shall not be personally liable in case
of entry by Trustee, or anyone entering by virtue of the powers herein granted
to Trustee, upon the Property for debts contracted for or liability or damages
incurred in the management or operation of the Property. Trustee shall have the
right to rely on any instrument, document, or signature authorizing or
supporting an action taken or proposed to be taken by Trustee hereunder,
believed by Trustee in good faith to be genuine. Trustee shall be entitled to
reimbursement for actual expenses incurred by Trustee in the performance of
Trustee's duties hereunder and to reasonable compensation for such of Trustee's
services hereunder as shall be rendered.
Section 18.4 RETENTION OF MONEY. All moneys received by Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated in any manner
from any other moneys (except to the extent
24
required by applicable law) and Trustee shall be under no liability for interest
on any moneys received by Trustee hereunder.
Section 18.5 PERFECTION OF APPOINTMENT. Should any deed, conveyance,
or instrument of any nature be required from Borrower by any Trustee or
substitute trustee to more fully and certainly vest in and confirm to Trustee or
substitute trustee such estates rights, powers, and duties, then, upon request
by Trustee or substitute trustee, any and all such deeds, conveyances and
instruments shall be made, executed, acknowledged, and delivered and shall be
caused to be recorded and/or filed by Borrower.
Section 18.6 SUCCESSION INSTRUMENTS. Any substitute trustee
appointed pursuant to any of the provisions hereof shall, without any further
act, deed, or conveyance, become vested with all the estates, properties,
rights, powers, and trusts of its or his/her predecessor in the rights hereunder
with like effect as if originally named as Trustee herein; but nevertheless,
upon the written request of Lender or of the substitute trustee, Trustee ceasing
to act shall execute and deliver any instrument transferring to such substitute
trustee, upon the trusts herein expressed, all the estates, properties, rights,
powers, and trusts of Trustee so ceasing to act, and shall duly assign, transfer
and deliver any of the property and moneys held by such Trustee to the
substitute trustee so appointed in Trustee's place.
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
25
IN WITNESS WHEREOF, this Security Instrument has been executed by
Borrower as of the day and year first above written.
BORROWER:
▇▇▇▇▇▇▇ PLAZA ASSOCIATES, L.P., a Delaware limited
partnership
By: ▇▇▇▇▇▇▇ Plaza Associates GP, LLC, a Delaware
limited liability company, its general partner
By: ▇▇▇▇▇▇▇▇ Properties Acquisition Partners,
L.P., a Delaware limited partnership, its
sole member
By: ▇▇▇▇▇▇▇▇ Properties I, Inc., a
Delaware corporation, its general
partner
By:
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
ACKNOWLEDGEMENT
STATE OF_________________ )
)
COUNTY OF _______________ )
This instrument was acknowledged before me on this ____ day of March,
2005, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, the Senior Vice President of ▇▇▇▇▇▇▇▇ Properties I,
Inc., a Delaware Corporation, the General Partner of ▇▇▇▇▇▇▇▇ Properties
Acquisition Partners, L.P., a Delaware limited partnership, the sole member of
▇▇▇▇▇▇▇ Plaza Associates GP, LLC, a Delaware limited liability company, the
General Partner of ▇▇▇▇▇▇▇ Plaza Associates, L.P., a Delaware limited
partnership, on behalf of said corporation.
Notary Public in and for the State of
________________________________
Type or Print Name of Notary
________________________________
My Commission Expires:
________________________________
[NOTARIAL SEAL]
EXHIBIT A
(LEGAL DESCRIPTION)
A-1
