Exhibit 99.5
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VENTAS REALTY, LIMITED PARTNERSHIP,
as Grantor
to
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
as Trustee
for the benefit of
BANK OF AMERICA, N.A., as Administrative Agent,
as Beneficiary
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AMENDED AND RESTATED DEED OF TRUST AND SECURITY AGREEMENT
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Dated as of April 17, 2002
MAXIMUM PRINCIPAL INDEBTEDNESS FOR TENNESSEE
RECORDING TAX PURPOSES IS $0
TAX PAID TO REGISTER'S OFFICE OF ▇▇▇▇▇▇▇▇ COUNTY, TENNESSEE UPON
RECORDATION OF THE ORIGINAL DEED OF TRUST DATED JANUARY 31, 2000 IN BOOK 5550,
PAGE 602.
NO NEW INDEBTEDNESS CREATED HEREBY.
THE SECURED INDEBTEDNESS, AS DEFINED BELOW, SHALL NOT CONSTITUTE A NOVATION
OF THE INDEBTEDNESS EVIDENCED BY THE ORIGINAL DEED OF TRUST, AS DEFINED
BELOW, AND NO ADDITIONAL OR NEW INDEBTEDNESS IS BEING SECURED HEREBY.
COUNTY: ▇▇▇▇▇▇▇▇
STATE: TENNESSEE
This Instrument Prepared By,
and After Recording Return To:
▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq.
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THIS AMENDED AND RESTATED DEED OF TRUST AND SECURITY AGREEMENT
IS ALSO A UNIFORM COMMERCIAL CODE FINANCING STATEMENT WHICH IS
BEING FILED AS A FIXTURE FILING IN ACCORDANCE WITH THE
TENNESSEE CODE ANNOTATED SECTION 47-9-502(c). THE COLLATERAL
IS DESCRIBED IN THIS AMENDED AND RESTATED DEED OF TRUST, AND
SOME OF THE COLLATERAL DESCRIBED HEREIN IS OR IS TO BECOME
FIXTURES ON THE REAL ESTATE DESCRIBED HEREIN. THE SECURED
PARTY, TO-WIT, BENEFICIARY MAY BE CONTACTED AT THE ADDRESS SET
FORTH IN ARTICLE IV, SECTION 2 HEREOF FOR INFORMATION
REGARDING THE SECURITY INTEREST.
PURSUANT TO TENNESSEE CODE ANNOTATED SECTION ▇▇-▇▇-▇▇▇, NOTICE
IS HEREBY GIVEN THAT THIS AMENDED AND RESTATED DEED OF TRUST
SECURES OBLIGATORY ADVANCES AND IS FOR COMMERCIAL PURPOSES.
THIS AMENDED AND RESTATED DEED OF TRUST ALSO SECURES OPTIONAL
ADVANCES WHICH ARE NONOBLIGATORY.
THIS AMENDED AND RESTATED DEED OF TRUST AND SECURITY AGREEMENT (this
"Deed of Trust") dated as of April 17, 2002, by and among VENTAS REALTY, LIMITED
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PARTNERSHIP, a Delaware limited partnership, having its principal office at ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
as grantor ("Grantor"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, a resident of Shelby County, Tennessee,
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as trustee ("Trustee"), and BANK OF AMERICA, N.A., in its capacity as
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Administrative Agent ("Administrative Agent") for the Lenders (as hereinafter
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defined) from time to time party to the Credit Agreement (as hereinafter
defined), with a mailing address of Agency Management, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇/▇▇/
▇▇▇▇▇, Mail Code: CA5-701-05-19, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Bank of
America, N.A., in its capacity as Administrative Agent, is referred to herein as
"Beneficiary").
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WHEREAS, Grantor previously executed and delivered that certain
Mortgage, Open-End Mortgage, Deed of Trust, Trust Deed, Deed to Secure Debt,
Credit Line Deed of Trust, Assignment of Leases and Rents, Security Agreement
and Financing Statement dated as of January 31, 2000, by and between Grantor, as
mortgagor/trustor/grantor/debtor thereunder and Bank of America, N.A., as
administrative agent, mortgagee/beneficiary/grantee thereunder recorded in the
official records of ▇▇▇▇▇▇▇▇ County, Tennessee, in Book 5550, Page 602 (the
"Original Deed of Trust");
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WHEREAS, the Grantor is the owner of the fee simple interest in the
real property described on Schedule A attached hereto and incorporated herein by
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reference;
WHEREAS, in connection with that certain credit facility in the amount
of $350 million (the "Credit Facility") established in favor of Grantor pursuant
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to the terms of that certain Second Amended and Restated Credit, Security and
Guaranty Agreement dated as of April 17, 2002 (as amended, modified, increased,
extended, renewed or replaced from time to time, the "Credit Agreement") among
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Grantor, as borrower thereunder, Ventas, Inc., certain subsidiaries of Grantor,
as guarantors, the Lenders identified therein (the "Lenders"), Bank of America,
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N.A., as issuing bank for the letter of credit thereunder, Administrative Agent
and UBS Warburg, as Syndication Agent, Grantor has refinanced the debt
obligations secured by the Original Deed of Trust. Terms used but not otherwise
defined herein shall have the meanings provided in the Credit Agreement; and
WHEREAS, the Lenders agreed to make the requested Credit Facility
available to the Grantor provided that, among other things, the Grantor amends
and restates the Original Deed of Trust and Grantor and Administrative Agent
have agreed to amend and restate the Original Deed of Trust in its entirety.
NOW THEREFORE, in consideration of the premises herein stated and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Grantor and Administrative Agent
agree that, effective as of the date hereof, the terms of the Original Deed of
Trust are hereby amended and restated in their entirety as follows:
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, in this Deed of Trust, any reference to "Secured Indebtedness"
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shall mean the total indebtedness, obligations and liabilities to be secured by
this Deed of Trust consisting of the sum of the following:
(i) the aggregate principal of all Loans and other advances made and
to be made by the Lenders under the Credit Agreement, the outstanding
amount of which shall not exceed Three Hundred Fifty Million Dollars
($350,000,000) at any time, as the same may be increased to Four
Hundred Fifty Million Dollars ($450,000,000) per the terms of the
Credit Agreement; plus
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(ii) interest on the principal amount of all Loans made and to be
made by the Lenders under the Credit Agreement, as provided in the
Credit Agreement; plus
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(iii) all other amounts payable under the Credit Agreement, this Deed
of Trust and any other Fundamental Document (as defined herein) which
relate to the Credit Agreement, or any of the security therefore, in
each case as the same may be amended, amended and restated, modified or
supplemented from time to time (including advances to protect the
collateral and all costs of enforcement), or as the maturities thereof
may be extended or renewed from time to time; plus
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(iv) any and all Hedging Obligations payable by Borrower to the
Hedging Banks or any amounts payable to Bank of America, N.A. or any
other Lender in connection with any bank account maintained by the
Borrower or any other Credit Party (as defined in the Credit Agreement)
at Bank of America, N.A. or any other Lender or any other banking
services provided to the Borrower or any other Credit Party by Bank of
America, N.A., ▇▇▇▇▇▇ Guaranty Trust Company of New York or any other
Lender with respect to, or in any way related to, any of the
Fundamental Documents; plus
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(v) any other Obligations (as defined in the Credit Agreement) of the
Borrower; and
WHEREAS, the Lenders have required Grantor to execute and deliver this
Deed of Trust as a condition precedent to entering into the Credit Agreement and
the making of any Loans;
In consideration of the foregoing recitals and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
Grantor, to ratably secure the punctual payment by Grantor when due, whether at
stated maturity, by acceleration or otherwise, of the Secured Indebtedness and
the performance and observance of all other covenants, obligations and
liabilities of Grantor under the Credit Agreement, this Deed of Trust or any
other document referred to as a Fundamental Document under the Credit Agreement
(the Credit Agreement, this Deed of Trust and such other documents being herein
collectively called the "Fundamental Documents"), Grantor does hereby grant,
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bargain and sell, give, mortgage, warrant, convey, alien, remise, release,
assign, transfer, grant a security interest in, set over, deliver and confirm to
Trustee, and Trustee's successors and assigns, for the benefit of Beneficiary,
and Beneficiary's successors and assigns, WITH POWER OF SALE, upon the terms and
conditions of this Deed of Trust, with power of sale and right of entry and
possession (to the extent permitted by Applicable Law), each and all of the real
property, and further grants to Beneficiary a security interest in and to all
other property, described in the Granting Clauses set forth below.
The maturity date of the Secured Indebtedness is April 17, 2007.
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The total outstanding principal amount of indebtedness secured by this
Deed of Trust shall not exceed Four Hundred Fifty Million Dollars
($450,000,000).
However, the security for such indebtedness shall not be reduced by any
prepayment or repayment thereof so long as any portion of such indebtedness
shall remain unpaid and that portion of such indebtedness last remaining unpaid
shall be deemed secured hereby.
GRANTING CLAUSES
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ALL of the estate, right, title and interest of the Grantor in and to
all of those certain lot(s), piece(s) or parcel(s) of land described on Schedule
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"A" attached hereto and made a part hereof for all purposes, and all tenements,
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hereditaments, servitudes, appurtenances, rights, privileges, and immunities
belonging or appertaining thereto (the foregoing is collectively referred to as
the "Land"); and
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TOGETHER WITH, all of the estate, right, title and interest of the
Grantor, as lessor, both at law and in equity, under any leases which may now or
hereafter be entered into in respect of the Trust Property (as hereinafter
defined), as the same may be hereafter amended, modified, restated, extended,
supplemented, renewed or consolidated and all subleases, licenses, occupancy
agreements or concessions whereby any Person has agreed to pay money or any
consideration to the Grantor for the use, possession or occupancy of the Trust
Property or any part thereof, and all rents, income, profits, benefits, avails,
advantages and claims against guarantors under any thereof (each of the
foregoing is referred to as a "Lease" and collectively are referred to as the
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"Leases") and all rights in and to any deposits of cash, securities or other
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property which may be held at any time and from time to time by Grantor as the
lessor under the Leases to secure the performance of the covenants, conditions
and agreements to be performed by any lessee thereunder; and
TOGETHER WITH, all right, title and interest of Grantor in and to all
structures, buildings, facilities and other improvements thereto or thereon
situate heretofore or hereafter erected or placed on the Land, and in and to all
building materials, equipment and fixtures of every kind and nature now or
hereafter located on the Land (the foregoing is collectively referred to as the
"Improvements"); and
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TOGETHER WITH, all right, title and interest of Grantor in and to all
tenements, hereditaments, rights, rights-of-way, easements, privileges,
liberties, riparian rights and appurtenances thereunto belonging, or in any way
appertaining to the Real Property (as such term is defined herein) (including,
without limitation, all rights relating to storm and sanitary sewer, water, gas,
electric, railway and telephone services); all right, title and interest, if
any, of the Grantor in and to all gas, oil, minerals, coal and other substances
of any kind or character underlying such Real Property; all estate, claim,
demand, right, title or interest, if any, of the Grantor in and to any street,
road, highway, or alley (vacated or otherwise) adjoining said Real Property or
any part thereof (the foregoing is collectively referred to as the
"Appurtenances"); and
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TOGETHER WITH, all right, title and interest of Grantor in and to all
machinery, equipment, fixtures, furniture, fittings, inventory, appliances,
tools, accessories, building or construction materials and other property of
every kind whatsoever owned by Grantor (and, with respect to a lease of any of
the foregoing, to the extent of Grantor's rights as a lessee thereunder), or in
which Grantor has any right, title or interest, now or hereafter attached to, or
located in or upon, or used in connection with, the Real Property, together with
any and all additions thereto, substitutions therefore, and repairs,
replacements, improvements, and restorations thereof (including, without
limitation, all elevators, escalators, utility installations, plumbing, boilers,
heating, lighting, ventilation, air conditioning equipment, roof tanks, motors,
steam piping, sprinkler systems, cleaning equipment, spare parts of any kind
whatsoever, and other installations and fixtures of every kind whatsoever), and
all cash and non-cash proceeds thereof, all of which shall be deemed to be and
remain and form a part of the realty (to the maximum extent permitted by law)
and are covered by the lien of this Deed of Trust (the foregoing is collectively
referred to as the "Equipment"); and
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TOGETHER WITH, all right, title and interest of Grantor in and to all
contracts, agreements, options, rights of first refusal or rights of first offer
and other agreements, understandings or arrangements relating to the ownership,
construction, maintenance, repair, operation, occupancy, sale or financing of
the Real Property or any part thereof, and all income, profits, benefits,
avails, advantages and claims against guarantors under any of them (the
foregoing is collectively referred to as the "Contracts"); and
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TOGETHER WITH, all right, title and interest of Grantor in and to all
licenses, permits, certificates of occupancy and other governmental approvals
relating to construction, completion, occupancy, use or operation of the Real
Property or any part thereof, (all of the foregoing is collectively referred to
as the "Permits"); and
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TOGETHER WITH, all right, title and interest of Grantor in and to all
drawings, plans, specifications and similar or related items relating to the
Real Property (the foregoing is collectively referred to as the "Plans"); and
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TOGETHER WITH, all right, title and interest of Grantor in and to any
and all awards, damages, payment and other compensation, and any and all claims
therefore and rights thereto, which may result from taking or injury by virtue
of the exercise of the power of eminent domain, or any damage, injury or
destruction in any manner caused to the Real Property or the improvements
thereon, or any part thereof (the foregoing is collectively referred to as the
"Condemnation Awards"); and
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TOGETHER WITH, all right, title and interest of Grantor in and to the
insurance policies required to be maintained by the Grantor pursuant to the
Credit Agreement or this Deed of Trust (the foregoing is collectively referred
to as the "Insurance Policies" ) and all right, title and interest of Grantor in
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and to any and all proceeds of insurance policies of every kind whatsoever,
including title insurance (and all unearned premiums thereon), now or hereafter
payable by reason of any damage or destruction to the Real Property, whether
payable under the Insurance Policies or otherwise, and all interest thereon (the
foregoing is collectively referred to as the "Insurance Policies and Proceeds");
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and
TOGETHER WITH, all right, title and interest of the Grantor in and to
all other proceeds of the foregoing (the foregoing is collectively referred to
as the "Proceeds").
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(In this Deed of Trust, the Land, the Leases, the Appurtenances, the
Improvements, and the Equipment are collectively referred to as the "Real
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Property" provided, however, that where the context would require reference to
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tangible real property, the term "Real Property" shall mean the Land, the
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Improvements, the Appurtenances and the Equipment and the other items of
tangible property which are referred to in the granting clauses hereinabove set
forth. The Real Property and all the other rights, interests, benefits and
properties described in the foregoing granting clauses are collectively referred
to as the "Trust Property").
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TO HAVE AND TO HOLD the above granted, conveyed, mortgaged and
warranted Trust Property unto the Trustee, its successors, heirs and assigns, to
its and their own proper use, benefit and behoove forever, for the benefit of
Beneficiary, and Beneficiary's successors and assigns;
PROVIDED THAT this Deed of Trust shall be discharged at the expense of
(i) Grantor upon payment in full of the Secured Indebtedness, (ii) if the Credit
Agreement provides for a discharge or release of the lien of this Deed of Trust
or for the reconveyance of the Trust Property to Grantor upon the payment to
Beneficiary of a specified sum other than the entire Secured Indebtedness
(herein referred to as the "Release Price"), upon payment in full of the Release
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Price to Beneficiary or (iii) as otherwise expressly provided in the Credit
Agreement.
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ARTICLE I
GRANTOR REPRESENTS, WARRANTS, COVENANTS AND AGREES WITH BENEFICIARY AS FOLLOWS:
Section 1. Definitions. In this Deed of Trust, all words and terms not
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defined herein shall have the respective meanings and be construed herein as
provided in the Credit Agreement. Any reference to a provision of the Credit
Agreement shall be deemed to incorporate that provision as a part hereof in the
same manner and with the same effect as if the same were fully set forth herein.
In this Deed of Trust, unless otherwise specified, references to this "Deed of
Trust" or to "Lease(s)," "Credit Agreement," or "Fundamental Document(s)" shall
include all renewals, modifications, amendments, restatements, supplements,
extensions, consolidations, substitutions, spreaders and replacements thereof,
in whole or in part.
Section 2. Beneficiaries. Nothing herein expressed or implied is
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intended or shall be construed to confer upon, or to give to, any person other
than the Grantor and the Beneficiary any right, remedy or claim under, or by
reason hereof. All covenants, stipulations and agreements herein contained by
and on behalf of the Grantor shall be for the sole and exclusive benefit of the
Beneficiary, as agent for the Lenders.
Section 3. No Credit for Taxes Paid. Grantor shall not be entitled to
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any credit against payments due hereunder by reason of the payment of any taxes,
assessments, water or sewer rent or other governmental charges levied against
the Trust Property.
Section 4. Representations: Seisin and Warranty. Grantor represents and
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warrants that, except as set forth on Schedule "B" attached hereto and made a
part hereof for all purposes, the Grantor is the owner of a good, valid and
subsisting fee simple ownership interest in the Real Property (except for trade
fixtures and other improvements and property owned by tenants under any Lease),
free and clear of all liens other than liens which are Permitted Encumbrances
(as said term is defined in the Credit Agreement) under the Credit Agreement;
and as and to the extent required under Section 5.10 of the Credit Agreement,
Grantor shall warrant, defend and preserve such title and the rights granted by
this Deed of Trust with respect thereto against all claims of all persons and
entities. Grantor further warrants that it has the absolute right to grant this
Deed of Trust without the necessity of obtaining the consent of any Person. This
Deed of Trust constitutes a valid, binding and enforceable first lien on such
portion of the Trust Property as constitutes real property and fixtures, subject
only to the Permitted Encumbrances. Grantor shall cause the representation and
warranties in this Section 4 to continue to be true in each and every respect.
Section 5. Preservation, Maintenance and Repair. Subject to the
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applicable terms of the Credit Agreement, including, without limitation, the
limitations set forth in Section 5.3 of the Credit Agreement, all buildings,
structures and other improvements which are presently erected or in the future
are to be erected upon the Real Property, shall be kept and maintained or caused
to be kept and maintained in good and substantial repair, working order and
condition and otherwise in accordance with the terms of the Credit Agreement.
All of Grantor's right, title and interest in and to all alterations,
replacements, renewals or additions made pursuant to this Section shall
automatically become and constitute a part of the Trust Property and shall be
covered by the lien of this Deed of Trust.
Section 6. No Additional Liens. Except as otherwise expressly provided
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or permitted in the Credit Agreement or in any leases with tenants, the Grantor
shall not, without the prior express written consent of the Beneficiary, remove
or suffer to be removed from the Trust Property any fixtures subject to the lien
hereof (as the term "fixtures" is defined by the law in the State in which the
Real Property is located) and including all personal property owned by Grantor
located on and used in connection with the Real Property, presently or in the
future to be incorporated into, installed in, annexed or affixed to the Trust
Property (unless such fixtures and property have been replaced with similar
fixtures of equal or greater value or are sold or disposed of or removed in
accordance with the terms of the Credit Agreement); nor, except as expressly
provided or permitted pursuant to the Credit Agreement, will the Grantor execute
or cause to be executed any security interest upon any such
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fixtures, additions to, substitutions or replacements thereof or upon any
fixtures in the future to be installed in, annexed or affixed to the Trust
Property, without the prior express written consent of the Beneficiary.
Section 7. Secured Indebtedness; Performance. The Grantor shall
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duly and punctually pay when due the Secured Indebtedness. Grantor will perform
and observe all of its obligations under the Credit Agreement and the other
Fundamental Documents to which it is a party. The Grantor shall duly perform and
abide by the terms and covenants herein.
Section 8. Waiver. The acceptance by the Beneficiary of any
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payments hereunder, after default, or the failure of the Beneficiary, in any one
or more instances to insist upon strict performance by the Grantor of any terms
and covenants of this Deed of Trust or to exercise any option or election herein
conferred, shall not be deemed to be a waiver or relinquishment for the future
of any such terms, covenants, elections or options.
Section 9. Deed of Trust as Security Agreement. This Deed of Trust
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constitutes a security agreement under the Uniform Commercial Code of the State
in which the Real Property is situated, and the Grantor hereby grants to the
Beneficiary a security interest in all of Grantor's right, title and interest in
and to all goods, inventory, furniture, fixtures and equipment, and all other
machinery, appliances, furnishings, tools, personal property and building
materials, now owned or hereafter acquired by the Grantor, and installed or to
be installed in or on the Trust Property, or used or to be used in the business,
management or operation of the Trust Property, and all substitutions,
replacements, additions and accessions thereto (provided that any such
substitutions, replacements, additions and accessions thereto shall be of equal
or greater value), together with all cash and non-cash proceeds thereof. The
mailing addresses of Grantor (Debtor) and Beneficiary (Secured Party) appear at
the beginning hereof. The Grantor shall execute, deliver, file and refile any
financing statements, or continuation statements that the Beneficiary may
reasonably require from time to time to perfect or confirm the lien of this Deed
of Trust with respect to such property. Without limiting the foregoing, Grantor
hereby irrevocably authorizes the Beneficiary to file UCC financing statements
and any amendments thereto or continuations thereof, and any other appropriate
security documents or instruments and to give any notices necessary or desirable
to perfect or confirm the lien of this Deed of Trust with respect to such
property, in all cases without the signature of Grantor or to execute such items
as attorney-in-fact for Grantor; provided, that Beneficiary shall provide copies
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of any such documents or instruments to Grantor. This instrument shall be deemed
a fixture financing statement under the Uniform Commercial Code of the State in
which the Real Property is situated.
Section 10. No Assignment. Unless otherwise expressly provided or
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Trust shall not be assigned by the Grantor without the prior express written
consent of the Beneficiary.
Section 11. Date of Deed of Trust. The date of this Deed of Trust
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shall be for identification purposes only and shall not be construed to imply
that this Deed of Trust was executed on any date other than the respective dates
of the acknowledgments of the parties hereto. This Deed of Trust shall become
effective upon its delivery.
Section 12. Taxes; Recording Taxes and Fees.
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(a) Subject to the terms of the Credit Agreement (including,
without limitation, Grantor's right to contest taxes as set forth in
Section 5.9 of the Credit Agreement), Grantor shall promptly pay and
discharge or cause to be promptly paid and discharged all taxes,
assessments, municipal or governmental rates, charges, impositions,
liens and water and sewer rents or any part thereof (each an
"Imposition", collectively the "Impositions"), heretofore or hereafter
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imposed upon the Trust Property, Grantor or in respect of this Deed of
Trust. Within fifteen (15) Business Days of a written request by
Beneficiary, Grantor shall submit or cause to be submitted to
Beneficiary receipted bills or other evidence showing payment of the
Impositions or that the same are being contested on the terms set forth
in the Credit Agreement.
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(b) Grantor will pay all filing, registration or recording
fees, and all reasonable expenses incident to the execution and
acknowledgment of this Deed of Trust, any mortgage supplemental hereto,
any assignments of leases and rents, profits and leases, any security
instrument with respect to any equipment, any subordination,
non-disturbance and attornment agreement in connection with any Lease,
and any instrument of further assurance, and all federal, state, county
and municipal stamp taxes, mortgage recording taxes, and other taxes,
duties, imposts, assessments and charges arising out of or in
connection with the execution and delivery of this Deed of Trust, any
mortgage supplemental hereto, any security instrument with respect to
any equipment or any instrument of further assurance.
Section 13. Change in Laws. During the term of this Deed of Trust,
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in the event of the passage of any law or regulation which changes in any way
the laws now in force for the taxation of mortgages, or debts secured thereby,
for state or local purposes, or the manner of the operation of any such taxes,
so as to affect the interest of the Beneficiary or the Lenders, then and in such
event, the Grantor shall bear and pay the full amount of such taxes; provided
however, that Grantor shall not be responsible for the payment of any income or
franchise taxes of the Beneficiary or any of the Lenders.
Section 14. Insurance. Grantor shall maintain in full force and
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effect or cause to be maintained in full force and effect Insurance Policies
during the life of this Deed of Trust, insuring the Trust Property against fire,
extended coverage and other insurable hazards, casualties and contingencies as
required under the Credit Agreement or other Fundamental Documents.
Section 15. Damage and Destruction. If the Trust Property, or any
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material part thereof, shall be destroyed or damaged by fire or any other
casualty, whether insured or uninsured, Grantor shall give notice thereof to
Beneficiary within thirty (30) days after Grantor obtains knowledge of the
occurrence of such casualty. Notwithstanding anything to the contrary contained
herein or in any other provision of Applicable Law, the proceeds of insurance
policies coming into the possession of Beneficiary shall not be deemed trust
funds and Beneficiary shall be entitled to dispose of such funds as expressly
provided in the Credit Agreement. Beneficiary shall apply proceeds of insurance
as provided or permitted in the Credit Agreement, without affecting the lien of
the Deed of Trust for the full amount secured hereby before such payment took
place.
Section 16. Condemnation/Eminent Domain. Promptly upon obtaining
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knowledge of the institution of any proceedings for the condemnation of the
Trust Property, or any portion thereof which would result in Condemnation
Proceeds of $300,000 or more, Grantor will notify Beneficiary in writing of the
pendency of such proceedings. Grantor shall, at its sole expense, diligently
prosecute any such proceeding. All Condemnation Awards shall be held, applied,
and disbursed as expressly provided or permitted by the Credit Agreement.
Section 17. Compliance with Laws. The Grantor agrees to comply or
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cause compliance with all Applicable Law relating to the Trust Property as and
to the extent required by the terms of the Credit Agreement. Without limiting
any other provision of this Deed of Trust, the Grantor shall not initiate,
consent to or affirmatively support any change in applicable zoning which would
materially and adversely affect the value of the lien created by this Deed of
Trust or seek any zoning variance or permission which would adversely and
materially affect the value of the lien created by this Deed of Trust, in either
case without the consent of Beneficiary, which consent shall not be unreasonably
withheld, or except to the extent Grantor is required to take any of such
actions, or to cooperate therewith pursuant to the terms of any Lease.
Section 18. Environmental Laws. Grantor shall comply or cause
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compliance with all of the terms, conditions and provisions of the Credit
Agreement relating to compliance with Environmental Laws; notification
requirements with respect to violations or potential violations thereof;
testing, sampling and investigation requirements; and all other requirements and
obligations with respect to Environmental Laws, in each case as and to the
extent required in the Credit Agreement. Nothing herein, in the Credit Agreement
or other Fundamental Documents shall be construed as devolving control of the
Real Property or imposing "owner
7
or operator" status upon Beneficiary prior to any purchase of the Real Property
by Beneficiary at foreclosure or the taking of a deed in lieu of foreclosure.
Section 19. Indemnification. If any action or proceeding arising out
---------------
of or relating to the Trust Property, this Deed of Trust or any of the
transactions contemplated herein shall be commenced, to which action or
proceeding the holder of this Deed of Trust is made a party, or in which it
becomes necessary to defend or uphold the lien of this Deed of Trust, the
expense of any litigation to prosecute or defend the rights and lien created by
this Deed of Trust (including reasonable attorneys' fees, charges and
disbursements through all appeals but excluding any such expenses to the extent
incurred (x) by reason of the gross negligence or willful misconduct, as
determined by a final order or judgment of a court of competent jurisdiction, of
Beneficiary, or (y) in any litigation in which Beneficiary and Grantor are
adverse to each other, and in which the Grantor prevails on its claims and the
Beneficiary does not prevail on its defenses or its counterclaims interposed in
such litigation), shall be paid by the Grantor, and until so paid, any such sum
and the interest thereon shall be a lien on the Trust Property, prior to any
right, or title to, interest in or claim upon the Trust Property attaching or
accruing subsequent to the lien of this Deed of Trust, and shall be deemed to be
secured by this Deed of Trust. In any action or proceeding to foreclose this
Deed of Trust, or to recover or collect the debt secured hereby, the provisions
of law respecting the recovery of costs, disbursements and allowances shall
prevail unaffected by this covenant.
Section 20. Assignment of Leases and Rents. The Grantor hereby
------------------------------
assigns to the Beneficiary all Leases, rents, issues and profits (collectively
the "Rents") relating to or arising out of or from the Trust Property as further
-----
security for the payment of the Secured Indebtedness secured hereby, and the
Grantor grants to the Beneficiary the right to enter upon and to take possession
of the Trust Property for the purpose of collecting the Rents and to let the
Trust Property or any part thereof, and to apply the Rents after payment of all
necessary charges and expenses, on account of the Secured Indebtedness. The
assignments of the Leases and Rents are and shall be present, absolute and
irrevocable assignments and not merely the passing of a security interest and
such assignments shall continue in effect until all of the Secured Indebtedness
is paid in full and all the Obligations have been fully repaid and this Deed of
Trust discharged of record or until this Deed of Trust is otherwise released in
accordance with the terms of the Credit Agreement; provided however, for so long
as no Event of Default exists, the Beneficiary hereby waives the right to enter
upon and to take possession of the Trust Property for the purpose of collecting
the Rents and further grants to Grantor a revocable license to collect the
Rents. Said license shall terminate and be revoked automatically upon the
occurrence of an Event of Default. Grantor shall not, without the written
consent of the Beneficiary (i) receive or collect rent from any tenant of the
Trust Property or any part thereof for a period of more than one month in
advance of the date said rent is due per the terms of the applicable lease
(excluding any security deposits as provided in leases expressly approved by the
Beneficiary or otherwise permitted by the Credit Agreement); and (ii) except as
expressly permitted by the Credit Agreement, assign or attempt to assign the
Leases or the Rents to any Person other than Beneficiary. Upon the occurrence of
any Event of Default, Grantor shall pay the Rents or cause the Rents to be paid
to the Beneficiary, or to any receiver appointed to receive the Rents.
Section 21. Advances. Upon any Event of Default by Grantor, the
--------
Beneficiary may, at its option, remedy such Event of Default in accordance with
the terms of the Credit Agreement, and all payments made by the Beneficiary to
remedy an Event of Default (including reasonable attorneys' fees, charges and
disbursements through all appeals) and the total of any payment or payments due
from the Grantor to the Beneficiary which are in default, together with interest
thereon at the rate payable from time to time as provided under the Credit
Agreement (such interest to be calculated from the date of such advance to the
date of payment thereof by the Grantor), shall be added to the debt secured by
this Deed of Trust until paid, and the Grantor covenants to repay the same to
the Beneficiary upon demand. Any such sums and the interest thereon shall be a
lien on the Trust Property prior to any other lien attaching to or accruing
subsequent to the lien of this Deed of Trust to the fullest extent permitted by
law.
Section 22. No Waiver of Existing or Future Rights. No other
--------------------------------------
security previously or hereafter granted by Grantor to Beneficiary to secure
payment of the amount secured by this Deed of Trust shall be
8
impaired or affected by this Deed of Trust; and no security subsequently taken
by Beneficiary to secure payment of the amount secured by this Deed of Trust
shall affect or impair the lien of this Deed of Trust, but all such additional
security shall be deemed cumulative. Subject to the terms of the Credit
Agreement, Beneficiary may resort for payment of the amount secured by this Deed
of Trust to any security held by Beneficiary, in such order and manner as
Beneficiary, in its sole discretion, may elect.
Section 23. Permitted Exceptions. Except as permitted pursuant to
--------------------
the Credit Agreement, at no time throughout the term of this Deed of Trust shall
the Grantor create, incur, assume or suffer to exist any mortgage, pledge, lien,
security interest, encumbrance, attachment, levy, distraint or other judicial
process and burdens of any kind or nature on or with respect to any of the Trust
Property.
Section 24. Lease Provisions. Grantor covenants and agrees
----------------
specifically with respect to each Lease, and the leasehold estate created
thereunder that:
(a) In case any proceeds of insurance upon the Land, the
Trust Property or any part thereof are deposited with any person other
than the Beneficiary pursuant to the requirements of the Lease, then,
upon Grantor obtaining knowledge of same, Grantor will promptly notify
the Beneficiary in writing of the name and address of the person with
whom such proceeds have been deposited and the amount so deposited.
(b) Grantor will promptly notify the Beneficiary in writing
of any request made by either party to a Material Lease to the other
party thereto for arbitration or appraisal proceedings pursuant to such
Lease, and of the institution of any arbitration or appraisal
proceedings and promptly deliver to Beneficiary a copy of the
determination of the arbitrators or appraisers in each such proceeding.
(c) As further security for the Secured Indebtedness,
Grantor hereby agrees to deposit with the Beneficiary a fully executed
counterpart of the Lease and all supplements thereto and amendments
thereof, in each case if and to the extent Grantor possesses such
documents, to be retained by the Beneficiary until the Secured
Indebtedness secured hereby is fully paid or until this Deed of Trust
is released in accordance with the terms of the Credit Agreement.
(d) As to any Material Lease relating to all or any portion
of the Trust Property, Grantor shall (i) as and to the extent required
under the Credit Agreement, appear in and defend any action or
proceeding arising under or in any manner connected with such Lease or
the obligations of Grantor as lessor thereunder; (ii) exercise, within
ten (10) days after a request by Beneficiary, any right to request from
the lessee a certificate with respect to the status thereof; (iii)
deliver to Beneficiary upon Beneficiary's request, a written statement,
certified by Grantor as being true, correct and complete, to the best
of Grantor's knowledge, containing the names of all lessees under
Material Leases affecting the Trust Property, the terms of all such
Leases and the spaces occupied and rentals payable thereunder, and a
list of all Material Leases which are then in default, including the
nature and magnitude of such default.
(e) All Leases entered into by Grantor after the date
hereof, and all rights of any lessees thereunder shall be subject and
subordinate in all respects to the lien and provisions of this Deed of
Trust unless Beneficiary shall otherwise elect in writing; provided,
however, that Beneficiary hereby agrees to the inclusion in all such
Leases of a customary recognition and non-disturbance provision to the
effect that Beneficiary (and any Person succeeding to the interest of
Beneficiary under this Deed of Trust) will not disturb the applicable
lessee's occupancy of the Trust Property, or any other rights of such
lessee under the applicable Lease, so long as the lessee is not in
default under said Lease (after the expiration of all applicable cure
periods).
(f) All Leases entered into by Grantor after the date hereof
shall provide that if any act or omission of Grantor would give any
lessee under any such Lease the right, immediately or after lapse of
9
a period of time, to cancel or terminate such Lease, or to ▇▇▇▇▇ or
offset against the payment of rent or to claim a partial or total
eviction, such lessee shall not exercise such right until it has given
written notice of such act or omission to Beneficiary and until a
reasonable period for remedying such act or omission shall have elapsed
following the giving of such notice without a remedy being effected.
(g) All Leases entered into by Grantor after the date hereof
shall provide that in the event of the enforcement by Beneficiary of
any remedy under this Deed of Trust, the lessee under each such Lease
shall at Deed of Trust's option attorn to Beneficiary (or to any other
Person succeeding to the interest of Beneficiary as a result of such
enforcement) and recognize Beneficiary or such successor in interest as
lessor under the Lease without change in the provisions thereof;
provided, however, Beneficiary or such successor in interest shall not
be: (i) bound by any payment of an installment of rent or additional
rent which may have been made more than thirty (30) days before the due
date of such installment; (ii) bound by any amendment or modification
to the Lease made without the consent of Beneficiary or such successor
in interest; (iii) liable for any previous act or omission of Grantor
(or its predecessors in interest); (iv) responsible for any monies
owing by Grantor to the credit of such lessee or subject to any
credits, offsets, claims, counterclaims, demands or defenses which the
lessee may have against Grantor (or its predecessors in interest); (v)
bound by any covenant to undertake or complete any construction of the
premises demised under any Lease or any portion thereof; or (vi)
obligated to make any payment to such lessee other than any security
deposit actually delivered to Beneficiary or such successor in
interest. Each such Lease shall provide that each lessee or other
occupant, upon request by Beneficiary or such successor in interest,
shall execute and deliver an instrument or instruments confirming such
attornment and non-disturbance.
Section 25. [reserved].
--------
Section 26. Transfer of Trust Property. Except as permitted pursuant
--------------------------
to the Credit Agreement or an express provision of this Deed of Trust, Grantor
shall not sell, transfer, convey or assign all or any portion of, or any
interest in the Trust Property, whether legal or equitable, by outright sale,
deed, installment sale contract, land contract, contract for deed, leasehold
interest, lease option, contract or any other method of conveyance of real
property interests.
Section 27. Future Advances. This Deed of Trust shall secure the
---------------
payment of all loans, monies, credit and other Secured Indebtedness advanced
under the Credit Agreement and the other Fundamental Documents and/or this Deed
of Trust, whether the entire amount shall have been advanced at the date hereof
or at a later date, or having been advanced, shall have been repaid in part and
further advances made at a later date, and whether or not related to the
original advances, together with the specified interest thereon all in
accordance with the terms of the Credit Agreement. It is understood that, at any
time before the cancellation and release of this Deed of Trust, the Credit
Agreement and the other Fundamental Documents and/or this Deed of Trust,
including the terms of repayment, may from time to time be modified or amended
in writing thereon by the parties liable thereon and the holder thereof to
include any future advance or advances for any purpose made by the holder, at
its option, to or for said parties liable thereon.
THIS DEED OF TRUST IS FOR COMMERCIAL PURPOSES, AND SECURES NOT ONLY
INDEBTEDNESS OR ADVANCES MADE CONTEMPORANEOUSLY WITH THE EXECUTION HEREOF, BUT
ALSO FUTURE ADVANCES, BOTH OBLIGATORY AND OPTIONAL, TO THE SAME EXTENT AS IF
SUCH FUTURE ADVANCES WERE MADE CONTEMPORANEOUSLY WITH THE EXECUTION HEREOF, EVEN
THOUGH NO ADVANCE IS MADE AT THE TIME OF EXECUTION HEREOF AND EVEN THOUGH NO
INDEBTEDNESS IS OUTSTANDING AT THE TIME ANY ADVANCE IS MADE, AS PROVIDED BY
TENNESSEE CODE ANNOTATED (S) ▇▇-▇▇-▇▇▇. THIS NOTICE REFERENCING OBLIGATORY
FUTURE ADVANCES IS FOR THE PURPOSE OF COMPLYING WITH TENNESSEE CODE ANNOTATED
(S) 47-28-104(b) AND NO OTHER INFERENCE IS TO BE PRESUMED HEREUNDER.
10
Section 28. [reserved].
--------
Section 29. Other Security. Beneficiary may resort to any other
--------------
security held by Beneficiary for the payment of the Secured Indebtedness or the
performance of the Obligations in such order and manner as Beneficiary may
elect; provided however, that Beneficiary may resort to the sale of any other
security held by Beneficiary for the payment of the Secured Indebtedness or the
performance of the Obligations to the extent that the sale of any such other
security is, in the reasonable judgment of Beneficiary, necessary for the
payment of the Secured Indebtedness or the performance of the Obligations and no
such action by Beneficiary shall operate to modify or terminate any of the
rights, powers or remedies contained in the Credit Agreement or other
Fundamental Documents.
Section 30. No Exhaustion of Remedies Required. Notwithstanding
----------------------------------
anything contained herein to the contrary, Beneficiary shall not be under any
duty to Grantor, any Affiliate, or others, including, without limitation, the
holder of any junior, senior or subordinate mortgage on the Trust Property or
any part thereof or on any other security held by Beneficiary, to exercise or
exhaust all or any of the rights, powers and remedies available to Beneficiary,
whether under this Deed of Trust or any other document evidencing or securing
the payment of the Secured Indebtedness or the performance of the Obligations
prior to the sale of the Trust Property.
Section 31. No Merger of Estates. If the Real Property consists of a
--------------------
leasehold estate, then so long as the Secured Indebtedness shall remain unpaid,
unless Beneficiary shall otherwise consent, the fee title to any leasehold
estate in the Real Property created by the Lease shall not merge but shall
always be kept separate and distinct, notwithstanding the union of such estates
either in the lessor or in the lessee under the Lease or in a third party, by
purchase or otherwise. Grantor further covenants and agrees that, in case it
shall acquire the fee title, or any other estate, title or interest in the Real
Property, or any part thereof, covered by the Lease or this Deed of Trust, this
Deed of Trust shall attach to and cover and be a lien upon such other estate so
acquired, and such other estate so acquired by Grantor shall be mortgaged to
Beneficiary and the lien hereof spread to cover such estate with the same force
and effect as though specifically herein mortgaged. Grantor shall, upon demand,
execute such further instruments to facilitate the intent of this Section as
Beneficiary shall reasonably request.
Section 32. Revolving Loans. The Obligations secured by this Deed of
---------------
Trust include Revolving Loans made, and Obligations relating to Letters of
Credit issued or extended under the Credit Agreement which are advanced, paid
and readvanced from time to time. Notwithstanding the amount outstanding at any
particular time, this Deed of Trust secures the total amount of Obligations
(except to the extent, if any, that the amount secured by this Deed of Trust is
limited as specified in this Deed of Trust). The unpaid balance of the Revolving
Loans and the Obligations relating to Letters of Credit issued or extended under
the Credit Agreement may at certain times be, or be reduced to, zero. A zero
balance, by itself, does not affect any Issuing Bank's obligation to issue or
extend Letters of Credit or to make payments upon draws under Letters of Credit
or any Lender's obligation to advance Revolving Loans or to participate in
Letters of Credit subject to the conditions stated in the Credit Agreement. Each
of the security interest of the Beneficiary hereunder and the priority of the
lien of this Deed of Trust will remain in full force and effect with respect to
all of the Obligations notwithstanding such a zero balance of the Revolving
Loans, and obligations with respect to Letters of Credit and the lien of this
Deed of Trust will not be extinguished, terminated or released except as
expressly provided in this Deed of Trust or the Credit Agreement.
ARTICLE II
THE OCCURRENCE OF ANY OF THE FOLLOWING EVENTS SHALL BE AN EVENT OF DEFAULT
UNDER THIS DEED OF TRUST:
Section 1. Event of Default Under the Fundamental Documents. The
------------------------------------------------
occurrence of any Event of Default under the Credit Agreement or the other
Fundamental Documents.
11
Section 2. Transfers. If the Trust Property, any part thereof,
---------
any interest therein, or any interest in Grantor shall be transferred, conveyed,
sold, assigned or encumbered, in violation of the terms and provisions of this
Deed of Trust, the Credit Agreement and/or any other Fundamental Document.
Section 3. Breach of Covenants. The Grantor shall have failed to
-------------------
perform any of the terms, covenants, conditions or undertakings contained in
this Deed of Trust and such failure shall continue unremedied for thirty (30)
days after Grantor receives written notice from Beneficiary of said failure
(provided that, for non-monetary defaults, if the nature of Grantor's failure is
such that more time is reasonably required in order to cure, such failure shall
not constitute an Event of Default, if Grantor commences to cure promptly within
such thirty (30) day period, keeps Beneficiary reasonably informed of efforts to
cure such failure, and diligently prosecutes the same to completion within a
reasonable time); provided, however, that such thirty (30) day period shall only
be available to the extent that the aforementioned failure hereunder does not
also constitute an Event of Default under the Credit Agreement or the other
Fundamental Documents for which no or a ▇▇▇▇▇▇▇ ▇▇▇▇▇ period is available by the
terms thereof.
ARTICLE III
SHOULD ANY EVENT OF DEFAULT BE MADE BY THE GRANTOR, THE BENEFICIARY MAY TAKE ANY
OR ALL OF THE FOLLOWING ACTIONS, AT THE SAME OR AT DIFFERENT TIMES:
Section 1. Acceleration. The Beneficiary may declare the entire
------------
Secured Indebtedness to be due and payable immediately, and upon any such
declaration, the entire unpaid balance of the Secured Indebtedness shall be
immediately due and payable without presentment, demand, protest or further
notice of any kind, all of which are expressly waived by Grantor, anything
herein or in any other Fundamental Documents notwithstanding.
Section 2. Possession. The Beneficiary shall have the right
----------
forthwith after any such Event of Default to enter upon, and take possession of,
the Trust Property, and to lease and let the said Trust Property, and to receive
all the Rents thereof which are overdue, due or to become due, and to apply the
same, after payment of all necessary charges and expenses, on account of the
amounts hereby secured, and the holder of this Deed of Trust is given and
granted full power and authority to do any act or thing which the Grantor or the
successors or assigns of the Grantor who may then own the Trust Property might
or could do in connection with the management and operation of the Trust
Property (including, without limitation, complete the construction of the
Improvements and, in the course of such completion, make such changes as
Beneficiary deems advisable). This remedy shall be effective either with or
without any action brought to foreclose this Deed of Trust and without applying
at any time for a receiver of such rents. Costs and expenses (including, without
limitation, all reasonable attorneys' fees, expenses and charges through all
appeals) incurred by the Beneficiary under this Section shall become part of the
Secured Indebtedness secured hereunder.
Section 3. Foreclosure.
-----------
(a) The Trustee is hereby granted a power of sale. The
Beneficiary may institute, or direct the Trustee to institute, an
action of deed of trust foreclosure, or take other action as the law
may allow, at law or in equity, for the enforcement of this Deed of
Trust, and proceed thereon to final judgment and execution of the
entire amount secured hereby including costs of suit, interest and
reasonable attorneys' fees. In case of any sale of the Trust Property
by virtue of judicial proceedings, the Trust Property may be sold in
one parcel and as an entirety or in such parcels, manner or order as
the Beneficiary in its sole discretion may elect. The failure to make
any tenant a party defendant to a foreclosure proceeding and to
foreclose its rights will not be asserted by the Grantor as a defense
in any proceeding instituted by the Beneficiary to collect the
obligations secured hereby or any deficiency remaining unpaid after the
foreclosure sale of the Trust Property. Costs and expenses incurred by
the Beneficiary (including,
12
without limitation, all reasonable attorneys' fees, trustee's fees,
expenses and charges through all appeals) under this Section shall
become part of the Secured Indebtedness secured hereby. Proceeds
realized from a foreclosure of this Deed of Trust shall be applied in
accordance with the provisions of the Credit Agreement and Section 5 of
this Article 3 and, in any event, in accordance with the provisions of
Applicable Law.
(b) [reserved].
(c) Upon any foreclosure sale made under this Deed of Trust,
Beneficiary may bid for and acquire the Trust Property by crediting the
sales price (after deducting the costs and expenses of sale and any
other sums which Beneficiary is authorized to deduct) upon the
indebtedness or other sums secured by this Deed of Trust.
(d) Any foreclosure sale made under this Deed of Trust shall
operate to divest all of the estate, right, title, interest, claim and
demand whatsoever, whether at law or in equity, of Grantor in and to
the Trust Property and rights so sold, and shall be a perpetual bar,
both at law and in equity, against Grantor and all Persons who may at
any time claim the same, or any part thereof, from, through or under
Grantor. Grantor hereby expressly waives any right to direct the order
in which the Trust Property shall be sold pursuant hereto.
(e) To the fullest extent permitted by law, Grantor will not
at any time insist upon, plead, or in any manner whatsoever claim, take
or insist upon any benefit or advantage of any stay, extension or
moratorium law; any law pertaining to the marshaling of assets or the
administration of estates or decedents; any exemption from execution or
sale (including, but not limited to, any exemption of homestead); any
law providing for valuation or appraisal prior to any sale pursuant to
this Deed of Trust, or any decree, judgment or order of any court of
competent jurisdiction; any law allowing redemption of Trust Property
sold; or any law, now or at any time hereafter in force, which may
affect the covenants and terms or performance of this Deed of Trust;
and Grantor (for itself and all who claim under it) hereby expressly
waives all benefit or advantage of such laws, and covenants not to
hinder, delay or impede the execution of any power herein granted or
delegated to Beneficiary, but to suffer and permit the execution of
every power as though no such laws had been made or enacted.
(f) Grantor hereby requests that a copy of any Notice of
Default and a copy of any Notice of Sale under this Deed of Trust be
mailed to Grantor at Grantor's address for Notices as set forth in
Section 2 of Article IV.
Section 4. [reserved].
--------
Section 5. Application of Proceeds; Excess Monies. The proceeds of
--------------------------------------
any foreclosure sale made under or by virtue of this Article, together with any
other sums which may then be held by Beneficiary pursuant to this Deed of Trust,
whether under the provisions of this Article or otherwise, shall be applied as
follows:
(a) first, to Beneficiary for payment of the costs and
expenses (including, without limitation, all trustee's fees and
expenses and all reasonable attorneys' fees, expenses and charges
through all appeals) of such sale and of all expenses, liabilities and
advances made or incurred by Beneficiary under this Deed of Trust, and
all taxes and assessments due upon the Trust Property at the time of
such sale, except any taxes or assessments subject to which the Trust
Property shall have been sold;
(b) second, to the payment of whatever may then remain
unpaid on account of the Secured Indebtedness with interest thereon on
the date of payment in accordance with the terms and any order of
priorities specified in the Credit Agreement;
13
(c) third, to the payment of any other sums required to be
paid by Grantor pursuant to any provisions of the Fundamental
Documents, including, without limitation, all expenses, liabilities and
advances made or incurred by Beneficiary under this Deed of Trust or in
connection with the enforcement thereof, together with interest on all
such advances; and,
(d) the balance to Grantor in accordance with the terms and
any order of priorities specified in the Credit Agreement.
Section 6. Deficiency Decree. If, at any foreclosure proceeding,
-----------------
the Trust Property shall be sold for a sum less than the total amount of
indebtedness for which judgment is therein given, the judgment creditor shall be
entitled to the entry of a deficiency decree against Grantor and against the
property of Grantor for the amount of such deficiency; and Grantor does hereby
irrevocably consent to the appointment of a receiver for the Trust Property and
the property of Grantor and of the Rents thereof after such sale and until such
deficiency decree is satisfied in full.
Section 7. Appointment of Receiver. The Beneficiary may have a
-----------------------
receiver of the Rents of the Trust Property appointed without the necessity of
proving either the depreciation or the inadequacy of the value of the security
or the insolvency of the Grantor or any person who may be legally or equitably
liable to pay monies secured hereby, and the Grantor and each such person waive
such proof and consent to the appointment of a receiver.
Section 8. Waivers of Right. Along with any and all agreements,
----------------
waivers and relinquishments made by Grantor under this Deed of Trust and the
other Fundamental Documents, Grantor waives (i) the benefit of all Applicable
Laws now existing or that hereafter may be enacted providing for any
appraisement before sale of any portion of the Trust Property; and (ii) the
benefit of all Applicable Laws that may be hereafter enacted in any way
extending the time for enforcing collection of the Secured Indebtedness, or
creating or extending a period of redemption from any sale made in collecting
the Secured Indebtedness. Grantor acknowledges and agrees that the Real Property
Assets are located in more than one State and therefore Grantor waives and
relinquishes any and all rights it may have, whether at law or equity, to
require Beneficiary to proceed to enforce or exercise any rights, powers and
remedies they may have under the Credit Agreement and the other Fundamental
Documents in any particular manner, in any particular order, or in any
particular State or other jurisdiction. Grantor further agrees that any
particular proceeding, including without limitation foreclosure through court
action (in a state or federal court) or power of sale, may be brought and
prosecuted in the local or federal courts of any one or more States as to all or
any part of the Real Property, wherever located, without regard to the fact that
any one or more prior or contemporaneous proceedings have been situated
elsewhere with respect to any other part of the Real Property. To the fullest
extent that Grantor may do so, Grantor agrees that Grantor will not at any time
insist upon, plead, claim or take the benefit or advantage of any law now or
hereafter in force providing for any redemption, valuation, appraisement, stay
of execution or extension, and Grantor, for Grantor, Grantors' heirs, devisees,
representatives, successors and assigns, and for any and all persons ever
claiming any interest in the Trust Property, to the extent permitted by law,
hereby waives and releases all rights of redemption, valuation, appraisement,
marshaling, stay of execution, extension, and notice of election to mature or
declare due the whole of the Secured Indebtedness in the event of foreclosure of
the liens hereby created. Grantor further agrees that if any law referred to in
this Section and now in force, of which Grantor, Grantor's heirs, devisees,
representatives, successors and assigns or other person might take advantage
despite this Section, shall hereafter be repealed or cease to be in force, such
law shall not thereafter be deemed to preclude the application of this Section.
Grantor expressly waives and relinquishes any and all rights and remedies that
Grantor may have or be able to assert by reason of the laws of the State of
jurisdiction pertaining to the rights and remedies of sureties. Grantor makes
these agreements, waivers and relinquishments knowingly after consulting with
and considering the advice of independent legal counsel selected by Grantor.
Section 9. Other Remedies. In an Event of Default the Beneficiary
--------------
may also exercise any and all remedies available to it in law or in equity or in
the Credit Agreement or in the other Fundamental Documents without regard as to
any particular order of remedy exercised. Without limiting the foregoing,
Beneficiary shall
14
be entitled to enforce payment and performance of the Secured Indebtedness or
the Obligations and to exercise all rights and powers under this Deed of Trust
or under any Fundamental Document or other agreement or any laws now or
hereafter in force, notwithstanding that some or all of the Secured Indebtedness
and the Obligations may now or hereafter be otherwise secured, whether by
mortgage, deed of trust, pledge, lien, assignment or otherwise. Neither the
acceptance of this Deed of Trust nor its enforcement, whether by court action or
pursuant to the power of sale or other powers herein contained, shall prejudice
or in any manner affect Beneficiary's right to realize upon or enforce any other
security now or hereafter held by Beneficiary, it being agreed that Beneficiary
shall be entitled to enforce this Deed of Trust and any other security now or
hereafter held by Beneficiary in such order and manner as Beneficiary may in
Beneficiary's absolute discretion determine. No right or remedy herein conferred
upon or reserved to Beneficiary is intended to be exclusive of any other remedy
herein or by law provided or permitted, but each shall be cumulative and shall
be in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or by statute. Every power or remedy
given by any of the Fundamental Documents to Beneficiary, or to which
Beneficiary may be otherwise entitled, may be exercised concurrently or
independently, from time to time and as often as may be deemed expedient by
Beneficiary and either of them may pursue inconsistent remedies.
Section 10. Multisite Collateral. If (a) the Real Property shall
--------------------
consist of one or more parcels, whether or not contiguous and whether or not
located in the same county or city, or (b) in addition to this Deed of Trust,
Beneficiary shall now or hereafter hold or be the mortgagee or beneficiary of
one or more additional mortgages, liens, deeds of trust or other security
(directly or indirectly) securing the Secured Indebtedness upon other property
in the State in which the Real Property is located (whether or not such property
is owned by Grantor or by others) or (c) both the circumstances described in
clauses (a) and (b) shall be true, then to the fullest extent permitted by law,
Beneficiary may, at its election, commence or consolidate in a single trustee's
sale or foreclosure action all trustee's sale or foreclosure proceedings against
all such collateral securing the Secured Indebtedness (including the Trust
Property), which action may be brought or consolidated in the courts of, or sale
conducted in, any county or city in which any of such collateral is located.
Grantor acknowledges that the right to maintain a consolidated trustee's sale or
foreclosure action is a specific inducement to Beneficiary to extend the Secured
Indebtedness, and Grantor expressly and irrevocably waives any objections to the
commencement or consolidation of the foreclosure proceedings in a single action
and any objections to the laying of venue or based on the grounds of forum non
----- ---
conveniens which it may now or hereafter have. Grantor further agrees that if
----------
Beneficiary shall be prosecuting one or more foreclosure or other proceedings
against a portion of the Trust Property or against any collateral other than the
Trust Property, which collateral directly or indirectly secures the Secured
Indebtedness, or if Beneficiary shall have obtained a judgment of foreclosure
and sale or similar judgment against such collateral (or, in the case of a
trustee's sale, shall have met the statutory requirements therefore with respect
to such collateral), then, whether or not such proceedings are being maintained
or judgments were obtained in or outside the State in which the Real Property is
located, Beneficiary may commence or continue any trustee's sale or foreclosure
proceedings and exercise its other remedies granted in this Deed of Trust
against all or any part of the Trust Property and Grantor waives any objections
to the commencement or continuation of a foreclosure of this Deed of Trust or
exercise of any other remedies hereunder based on such other proceedings or
judgments, and waives any right to seek to dismiss, stay, remove, transfer or
consolidate either any action under this Deed of Trust or such other proceedings
on such basis. The commencement or continuation of proceedings to sell the Trust
Property in a trustee's sale, to foreclose this Deed of Trust or the exercise of
any other rights hereunder or the recovery of any judgment by Beneficiary or the
occurrence of any sale by the Beneficiary in any such proceedings shall not
prejudice, limit or preclude Beneficiary's right to commence or continue one or
more trustee's sales, foreclosure or other proceedings or obtain a judgment
against (or, in the case of a trustee's sale, to meet the statutory requirements
for any such sale of) any other collateral (either in or outside the State in
which the Real Property is located) which directly or indirectly secures the
Secured Indebtedness, and Grantor expressly waives any objections to the
commencement of, continuation of, or entry of a judgment in such other sales or
proceedings or exercise of any remedies in such sales or proceedings based upon
any action or judgment connected to this Deed of Trust, and Grantor also waives
any right to seek to dismiss, stay, remove, transfer or consolidate either such
other sales or proceedings or any sale or action under this Deed of Trust on
such basis. It is expressly understood and agreed that, to the fullest extent
permitted by law, Beneficiary may, at its election, cause the sale of all
collateral which is the
15
subject of a single trustee's sale or foreclosure action at either a single sale
or at multiple sales conducted simultaneously and take such other measures as
are appropriate in order to effect the agreement of the parties to dispose of
and administer all collateral securing the Secured Indebtedness (directly or
indirectly) in the most economical and least time-consuming manner.
Section 11. JURY WAIVER. TO THE EXTENT NOT PROHIBITED BY APPLICABLE
-----------
LAW, WHICH CANNOT BE WAIVED, IT IS MUTUALLY AGREED BY AND BETWEEN GRANTOR,
BENEFICIARY THAT THE PARTIES WAIVE TRIAL BY JURY IN ANY ACTION, CLAIM, SUIT,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES AGAINST THE OTHER ON
ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS DEED OF
TRUST AND/OR THE CONDUCT OF THE RELATIONSHIP BETWEEN GRANTOR AND BENEFICIARY.
Section 12. Service of Process. In the event the Beneficiary brings
------------------
any action or commences any proceeding to enforce the provisions of this Deed of
Trust, service of copies of the summons and complaint and any other process
which may be served in any such action or proceeding may be made in accordance
with the terms of the Credit Agreement. Nothing in this Section shall affect the
right of the Beneficiary to serve legal process in any other manner permitted by
law.
Section 13. Invalidity of Certain Provisions. If the lien of this
--------------------------------
Deed of Trust is invalid or unenforceable as to any part of the Secured
Indebtedness, or if the lien is invalid or unenforceable as to any part of the
Trust Property, the unsecured or partially secured portion of the Secured
Indebtedness shall be completely paid prior to the payment of the remaining and
secured or partially secured portion of the Secured Indebtedness, and all
payments made on the Secured Indebtedness, whether voluntary or under
foreclosure or other enforcement action or procedure, shall be considered to
have been first paid on and applied to the full payment of that portion of the
Secured Indebtedness that is not secured or fully secured by the lien of this
Trust Property.
ARTICLE IV
MISCELLANEOUS
Section 1. Cumulative Rights. The rights and remedies herein
-----------------
expressed to be vested in or conferred upon the Beneficiary shall be cumulative
and shall be in addition to and not in substitution for or in derogation of the
rights and remedies conferred by any Applicable Law. The failure, at any one or
more times, of the Beneficiary to assert the right to declare the Secured
Indebtedness due or the granting of any extension or extensions of time of
payment of the Secured Indebtedness either to the maker or to any other person,
or taking of other or additional security for the payment thereof, or releasing
any security, or changing any of the terms of this Deed of Trust, the Credit
Agreement, the other Fundamental Documents or other obligations accompanying
this Deed of Trust, or waiver of or failure to exercise any right under any
covenant or stipulation herein contained shall not in any way affect this Deed
of Trust nor the rights of the Beneficiary hereunder, nor operate as a release
from any personal liability upon the Credit Agreement and the other Fundamental
Documents or obligation accompanying this Deed of Trust, nor under any covenant
or stipulation therein contained, nor under any agreement assuming the payment
of said obligation.
Section 2. Notices. Notices and other communications provided for
-------
herein shall be in writing and shall be delivered or mailed (or if by facsimile
communications equipment, delivered by such equipment) addressed, (a) if to the
Beneficiary, to it at Agency Management, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, Mail
Code: CA5-701-05-19, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇,
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇ with a copy to ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 15th Floor,
NC-001-15-04, Charlotte, North Carolina, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Facsimile No.:
(▇▇▇) ▇▇▇-▇▇▇▇, or (b) if to Grantor, to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attn: General Counsel, Facsimile No.: (502)
357-9001, with a courtesy copy
16
to Barack, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Facsimile No.: (312)
984-3150, or (c) if to Trustee, to it c/o First American Title Insurance
Company, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or (d) such
other address as such party may from time to time designate by giving written
notice to the other parties hereunder. Any failure of any Person giving notice
pursuant to this Section to provide a courtesy copy to a party as provided
herein shall not affect the validity of such notice. All notices and other
communications given to any party hereto in accordance with the provisions of
this Deed of Trust shall be deemed to have been given (x) on the date of
receipt, when sent by registered or certified mail, postage prepaid, return
receipt requested, if by mail, (y) when delivered, if delivered by hand or
overnight courier service or (z) when receipt is acknowledged, if by facsimile
communications equipment, in each case addressed to such party as provided in
this Section or in accordance with the latest unrevoked written direction from
such party. No notice to or demand on Grantor shall entitle Grantor to any other
or further notice or demand in the same, similar or other circumstances.
Section 3. Successors and Assigns. This Deed of Trust and all its
----------------------
terms, covenants, conditions, and provisions are intended and shall be held to
be real covenants running with the Land and shall bind Grantor and Grantor's
heirs, legal representatives, successors, assigns, and any and all subsequent
owners, successors in title, encumbrancers, and tenants of the Real Property and
shall inure to the benefit of Beneficiary and Beneficiary's successors, assigns
and legal representatives and all subsequent holders of this Deed of Trust.
Section 4. Gender. When such interpretation is appropriate, any
------
word denoting gender used herein shall include all persons, natural or
artificial, and words used in the singular shall include the plural.
Section 5. Severability. If any court determines that any provision
------------
of this Deed of Trust is void or unenforceable, the Deed of Trust shall remain
in effect in accordance with its terms excluding the provision declared void or
unenforceable, unless Beneficiary (in Beneficiary's exclusive discretion)
determines that the entire Deed of Trust should be terminated. Whenever
possible, each provision of this Deed of Trust shall be interpreted in such
manner as to be effective and valid under Applicable Law, but if any provision
of this Deed of Trust shall be prohibited by or invalid under Applicable Law,
such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remaining provisions of this Deed of Trust.
Section 6. Amendment. This Deed of Trust may not be changed or
---------
terminated, or any term or provision thereof waived or discharged, except in
writing signed by the party against whom such change, termination, waiver or
discharge is sought. Schedule "A" and Schedule "B" annexed hereto are made a
part of this Deed of Trust as though fully set forth herein.
Section 7. GOVERNING LAW. THIS DEED OF TRUST SHALL BE GOVERNED BY
-------------
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE IN WHICH THE
REAL PROPERTY IS LOCATED.
Section 8. Limitation of Interest. It is the intent of Grantor and
----------------------
Beneficiary in the execution of this Deed of Trust and all other Fundamental
Documents to contract in strict compliance with the usury laws governing the
Secured Indebtedness evidenced by the Credit Agreement and the other Fundamental
Documents. In furtherance thereof, Grantor and Beneficiary stipulate and agree
that none of the terms and provisions contained in the Fundamental Documents
shall ever be construed to create a contract for the use, forbearance or
detention of money requiring payment of interest at a rate in excess of the
maximum interest rate permitted to be charged by the laws governing the Loans
evidenced by the Credit Agreement and the other Fundamental Documents. Grantor
or any Guarantor, endorser or other party now or hereafter becoming liable for
the payment of the Secured Indebtedness shall never be required to pay interest
on the Secured Indebtedness at a rate in excess of the maximum interest that may
be lawfully charged under the laws governing the Loans evidenced by the Credit
Agreement and the other Fundamental Documents, and the provisions of this
Section shall control over all other provisions of the Credit Agreement and the
other Fundamental Documents and any other instrument executed in connection
herewith which may b e in apparent conflict herewith. In the event any holder of
the Secured Indebtedness shall collect monies that are deemed to constitute
interest and that
17
would otherwise increase the effective interest rate on the Secured Indebtedness
to a rate in excess of that permitted to be charged by the laws governing the
Loan evidenced by the Credit Agreement and the other Fundamental Documents, all
such sums deemed to constitute interest in excess of the legal rate shall be
applied to the unpaid principal balance of the Secured Indebtedness and, if in
excess of such balance, shall be immediately returned to Grantor upon such
determination.
Section 9. Conflict. In case of any conflict or inconsistency between
--------
any provision of this Deed of Trust and the Credit Agreement, the provisions of
the Credit Agreement shall control.
Section 10. Substitution of Trustee. If, for any reason, (a) the
-----------------------
Trustee shall resign or (b) the Beneficiary shall elect to substitute a new
Trustee for the Trustee herein named (or for any successor to said Trustee), the
Beneficiary shall have the right to appoint such successor Trustee(s) by duly
acknowledged written instruments, and each new Trustee immediately upon
recordation of the instrument so appointing him shall become successor in title
to the Trust Property for the uses and purposes of this Deed of Trust, with all
the powers, duties and obligations conferred on the Trustee in the same manner
and to the same effect as though he were named herein as the Trustee. If more
than one Trustee has been appointed, each of such Trustees and each successor
thereto shall be and hereby is empowered to act independently.
Section 11. Special State Provisions. With respect to the Trust
------------------------
Property which is located in the State of Tennessee, notwithstanding anything
contained herein to the contrary:
(a) The Grantor acknowledges that the power of sale granted to
the Trustee herein may be exercised by the Trustee at the request of
Beneficiary without prior judicial hearing. The Grantor shall have the
right to bring an action to assert the non-existence of a breach or any
other defense of Grantor to acceleration and sale.
(b) Trustee, or Trustee's successors, at the request of
Beneficiary or the representatives or assigns of Beneficiary, after
giving notice of the time and place of sale, by publication of such
notice at least three (3) different times in some newspaper published
in ▇▇▇▇▇▇▇▇ County, Tennessee, the first of which publications shall be
at least twenty (20) days previous to said sale, and on the day and at
the front door of the County Courthouse in ▇▇▇▇▇▇▇▇ County, Tennessee,
being the place fixed in said notice, between the hours of 10:00 a.m.
and 2:00 p.m. shall proceed to sell the Trust Property above-described
and conveyed, or any part thereof, at public auction for cash, and in
bar of the right and equity of redemption, whether statutory or common
law, the right of redemption granted by Tennessee Code Annotated
Section 66-8-101, homestead, dower, marital share, and all other rights
and exemptions of every kind, all of which are hereby expressly waived.
Trustee shall have the right to adjourn the sale from time to time on
the day of sale to another day and time certain without further
publication upon announcement at the time set. The Beneficiary or the
Beneficiary's designee may purchase the Trust Property at any sale.
(c) The Trustee shall deliver to any purchaser a Trustee's
Deed conveying the Trust Property so sold without any covenant or
warranty, expressed or implied. The recitals in the Trustee's Deed
shall be prima facie evidence of the truth of statements made therein.
The Trustee shall apply the proceeds of the sale in the following
order: (i) to all costs and expenses of the sale, including, but not
limited to, the Trustee's fees and attorneys' fees and costs of title
evidence; (ii) to all sums secured by this Deed of Trust in such order
as the Beneficiary, in the Beneficiary's sole discretion, directs; and
(iii) the excess, if any, to the person or persons legally entitled
thereto.
(d) The Grantor hereby waives all right of homestead exemption
in and equitable and statutory redemption of the Trust Property, and
the Grantor hereby relinquishes all right of dower and courtesy in the
Trust Property.
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(e) Upon payment of all sums secured by this Deed of Trust,
the Trustee at the Beneficiary's direction will release this Deed of
Trust. The Grantor shall pay the Trustee's reasonable costs incurred in
releasing this Deed of Trust.
(f) Any amendment to or modification of this Deed of Trust may
be made in writing by and between Grantor and Beneficiary without
necessity of joinder therein by the Trustee.
19
THE GRANTOR HEREBY DECLARES THAT THE GRANTOR HAS READ THIS DEED OF
TRUST, HAS SIGNED THIS DEED OF TRUST AS OF THE DATE AT THE TOP OF THE FIRST PAGE
AND THE GRANTOR ACKNOWLEDGES THAT IT HAS RECEIVED A TRUE AND COMPLETE COPY OF
THIS DEED OF TRUST.
IN WITNESS WHEREOF, the Grantor and the Beneficiary have duly caused
this Deed of Trust to be duly executed and delivered as of the day and year
first above written.
VENTAS REALTY, LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Ventas, Inc., a Delaware corporation,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: EVP
BANK OF AMERICA, N.A.,
a national banking association
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Principal
ACKNOWLEDGMENT
--------------
STATE OF NEW YORK,
NEW YORK COUNTY, ss:
On this 16th day of April, 2002, before me personally appeared ▇▇▇▇
▇▇▇▇▇▇▇▇, EVP of Ventas, Inc., a Delaware corporation, general partner of Ventas
Realty, Limited Partnership, a Delaware limited partnership, to me known to be
the person(s) who executed the foregoing instrument on behalf of said limited
partnership, and acknowledged the execution of the same to be the free act and
deed of said limited partnership. Witness my hand and official seal.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
My commission expires: 10/31/05 Notary Public
[Notary Seal]
STATE OF NEW YORK,
NEW YORK COUNTY, ss:
On this 16th day of April, 2002, before me personally appeared ▇▇▇▇▇
▇▇▇▇▇▇, Principal of Bank of America, N.A., a national banking association, to
me known to be the person(s) who executed the foregoing instrument on behalf of
said association, and acknowledged the execution of the same to be the free act
and deed of said association. Witness my hand and official seal.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
My commission expires: 10/31/05 Notary Public
[Notary Seal]