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BEHRINGER HARVARD XXXXX H, LLC, AND THOSE BORROWERS SET FORTH ON SCHEDULE 1
ATTACHED HERETO
(Trustor)
to
XXXXXXXXXXX X. XXXXXXXX
(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 December __, 2004
Property Location: 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx
DOCUMENT PREPARED BY AND WHEN RECORDED, RETURN TO:
Sidley Xxxxxx Xxxxx & Xxxx LLP
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
This Deed of Trust secures purchase money to the extent of $37,000,000.
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DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT
(this "DEED OF TRUST"), made as of December __, 2004, by BEHRINGER HARVARD XXXXX
H, LLC, a Delaware limited liability company having an office at 00000 Xxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, and those borrowers set forth on
Schedule 1 attached hereto, (collectively, "TRUSTOR"), to XXXXXXXXXXX X.
XXXXXXXX, having an address at c/o LandAmerica Commercial Services, 00 Xxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 ("TRUSTEE"), for the benefit of CITIGROUP
GLOBAL MARKETS REALTY CORP., a New York corporation (together with its
successors and assigns, hereinafter referred to as "BENEFICIARY"), having an
address at 000 Xxxxxxxxx Xxxxxx, Xxxxx 00, Xxx Xxxx, Xxx Xxxx 00000.
Trustor and Beneficiary have entered into a Loan Agreement dated as of
the date hereof (as amended, modified, restated, consolidated or supplemented
from time to time, the "LOAN AGREEMENT") pursuant to which Beneficiary is making
a secured loan to Trustor in the maximum principal amount of up to Thirty-Seven
Million and No/Dollars ($37,000,000) (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) give such notice of default and of election to cause the
Trust Property to be sold as may be required by law or as may be
necessary to cause Beneficiary to exercise the power of sale granted
herein; Beneficiary shall then record and give such notice of
Beneficiary's sale as then required by law and, after the expiration of
such time as may be required by law, may sell the Trust Property at the
time and place specified in the notice of sale, as a whole or in
separate parcels as directed by Beneficiary, or by Trustor to the extent
required by law, at public auction to the highest bidder for cash in
lawful money of the United States, payable at time of sale, all in
accordance with applicable law. Beneficiary, from time to time, may
postpone or continue the sale of all or any portion of the Trust
Property by public declaration at the time and place last appointed for
the sale and no other notice of the postponed sale shall be required
unless provided by applicable law. Upon any sale, Beneficiary shall
deliver its deed conveying the property sold, without any covenant or
warranty, expressed or implied, to the purchaser or purchasers at the
sale. The recitals in such deed of any matters or facts shall be
conclusive as to the accuracy thereof;
(iii) 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;
(iv) 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;
(v) 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
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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;
(vi) 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;
(vii) recover judgment on the Note either before, during or
after any proceeding for the enforcement of this Deed of Trust;
(viii) apply for the 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;
(ix) enforce Beneficiary's interest in the Leases and Rents
and enter into or upon the Trust Property, either personally or by its
agents, nominees or attorneys and dispossess Trustor and its agents and
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;
(x) 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; 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.
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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 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, Beneficiary, or an officer of any court empowered to do so, shall
execute and deliver to the accepted purchaser or purchasers a good and
sufficient instrument, or good and sufficient instruments, conveying, assigning
and transferring all estate, right, title and interest in and to the property
and rights sold. Beneficiary is hereby irrevocably appointed the true and lawful
attorney of Trustor, in its name and stead, to make all necessary conveyances,
assignments, transfers and deliveries of the Trust Property and rights so sold
and for that purpose Beneficiary may execute all necessary instruments of
conveyance, assignment and transfer, and may substitute one or more persons with
like power, Trustor 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 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.
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(g) Beneficiary may terminate or rescind any proceeding or
other action brought in connection with its exercise of the remedies provided in
this Paragraph 10 at any time before the conclusion thereof, as determined in
Beneficiary's sole discretion and without prejudice to Beneficiary.
(h) Beneficiary may resort to any remedies and the security
given by this Deed of Trust or in any other Loan Document in whole or in part,
and in such portions and in such order as determined by Beneficiary's sole
discretion. No such action shall in any way be considered a waiver of any
rights, benefits or remedies evidenced or provided by any Loan Document. The
failure of Beneficiary to exercise any right, remedy or option provided in any
Loan Document shall not be deemed a waiver of such right, remedy or option or of
any covenant or obligation secured by any Loan Document. No acceptance by
Beneficiary of any payment after the occurrence of any Event of Default and no
payment by Beneficiary of any obligation for which Trustor is liable hereunder
shall be deemed to waive or cure any Event of Default, or Trustor's liability to
pay such obligation. No sale of all or any portion of the 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
10
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. As such, this Deed of
Trust covers all items of the Collateral that are or are to become fixtures.
Information concerning the security interest herein granted may be obtained from
the parties at the addresses of the parties set forth in the first paragraph of
this Deed of Trust. If an Event of Default shall occur, Beneficiary, in addition
to any other rights and remedies which it may have, shall have and may exercise
immediately and without demand, any and all rights and remedies granted to a
secured party upon default under the UCC, including, without limiting the
generality of the foregoing, the right to take possession of the Collateral or
any part thereof, and to take such other measures as Beneficiary may deem
necessary for the care, protection and preservation of the Collateral. Upon
request or demand of Beneficiary, Trustor shall at its expense assemble the
Collateral and make it available to Beneficiary at a convenient place acceptable
to Beneficiary. Trustor shall pay to Beneficiary on demand any and all expenses,
including reasonable attorneys' fees and disbursements, incurred or paid by
Beneficiary in protecting 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
11
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
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
12
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.
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
13
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.
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 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. TRUSTEE; SUCCESSOR TRUSTEE. Trustee shall not be liable
for any error of judgment or act done by Trustee, or be otherwise responsible or
accountable under any circumstances whatsoever, except if the result of
Trustee's gross negligence or willful misconduct. Trustee shall not be
personally liable in case of entry by him or anyone acting by virtue of the
powers herein granted him upon the Trust Property for debts contracted or
liability or damages or damages incurred in the management or operation of the
Trust Property. Trustee shall have the right to rely on any instrument, document
or signature authorizing or supporting any action taken or proposed to be taken
by him hereunder or believed by him to be genuine. Trustee shall be entitled to
reimbursement for actual expenses incurred by him in the performance of his
duties hereunder and to reasonable compensation for such of his services
hereunder as shall be rendered. Trustor will, from time to time, reimburse
Trustee for and save and hold him harmless from and against any and all loss,
cost, liability, damage and reasonable expense whatsoever incurred by him in the
performance of his duties. All monies 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 monies
(except to the extent required by law) and Trustee shall be under no liability
for interest on any monies received by him hereunder. Trustee may resign by
giving of notice of such resignation in writing to Beneficiary. If Trustee shall
die, resign or become disqualified from acting in the execution of this trust or
shall fail or refuse to exercise the same when requested by Beneficiary or if
for any or no reason and without cause Beneficiary shall prefer to appoint a
substitute trustee to act instead of the original Trustee named herein, or any
prior successor or substitute trustee, Beneficiary shall, without any formality
or notice to Trustor or any other person, have full power
14
to appoint a substitute trustee and, if Beneficiary so elects, several
substitute trustees in succession who shall succeed to all the estate, rights,
powers and duties of the aforenamed Trustee. Each appointment and substitution
shall be evidenced by an instrument in writing which shall recite the parties
to, and the book and page of record of, this Deed of Trust, and the description
of the real property herein described, which instrument, executed and
acknowledged by Beneficiary, shall (i) be conclusive proof of the proper
substitution and appointment of such successor Trustee or Trustees, (ii) duly
assign and transfer all the estates, properties, rights, powers and trusts of
Trustee so ceasing to act and (iii) be notice of such proper substitution and
appointment to all parties in interest. In addition, such Trustee ceasing to act
shall duly assign, transfer, and deliver any of the property and monies held by
Trustee to the successor Trustee so appointed in its or his place. The Trustee
may act in the execution of this trust and may authorize one or more parties to
act on his behalf to perform the ministerial functions required of him
hereunder, including without limitation, the transmittal and posting of any
notices and it shall not be necessary for any Trustee to be present in person at
any foreclosure sale.
30. 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.
15
PART II
JURISDICTION SPECIFIC PROVISIONS
[To Come]
IN WITNESS WHEREOF, Trustor has executed this instrument as of the day
and year first written above.
Behringer Harvard Xxxxx H, LLC, a Delaware
limited liability company
By:______________________________________
Xxxxxx X. Xxxxxxx, III, Secretary
TIC Xxxxx 1, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 2, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 4, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 5, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 6, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 8, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 9, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 10, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 11, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 13, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 15, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 16, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 17, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 18, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 19, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 23, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 24, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 25, LLC, a Delaware limited
liability company
By:______________________________________
STATE OF )
) ss.:
COUNTY OF )
On _______ __, 2004 before me, ______________________________, a Notary
Public for said state, personally appeared ___________________, personally known
to me OR proved to me on the basis of satisfactory evidence to be the person
whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his capacity, and that his signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the
instrument.
_________________________________
Notary Public
State of ________________________
My commission expires:
______________________
