Exhibit 99.5
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BEHRINGER HARVARD MOCKINGBIRD COMMONS LP
a Texas limited partnership
(Grantor)
to
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(Trustee)
for the benefit of
AMERICAN NATIONAL BANK OF TEXAS
(Beneficiary)
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AMENDED AND RESTATED
DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
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Dated as of September 30, 2005
Property Location: Dallas County, Texas
DOCUMENT PREPARED BY AND WHEN RECORDED, RETURN TO:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
THIS INSTRUMENT CONTAINS INDEMNIFICATION PROVISIONS AND
PROVISIONS LIMITING THE BENEFICIARY'S LIABILITY FOR NEGLIGENCE
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AMENDED AND RESTATED DEED OF TRUST,
ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS AMENDED AND RESTATED DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING (this "Deed of Trust") is executed
effective as of September 30, 2005, by BEHRINGER HARVARD MOCKINGBIRD COMMONS LP,
a Texas limited partnership ("Grantor"), whose address for notice hereunder is
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
("Trustee"), for the benefit of AMERICAN NATIONAL BANK OF TEXAS ("Beneficiary"),
whose address for notice hereunder is ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇; Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. As used herein, the following terms shall
have the following meanings:
"Affiliate" means, as to any person, any other person which
directly or indirectly controls, or is under common control with, or is
controlled by, such person. As used in this definition, "control" (and
the correlative terms, "controlled by" and "under common control with")
shall mean possession, directly or indirectly, of power to direct or
cause the direction of management or policies (whether through ownership
of securities or partnership or other ownership interests, by contract
or otherwise); PROVIDED THAT, in any event, any person that owns,
directly or indirectly, ten percent (10%) or more of the securities
having ordinary voting power for the election of directors or other
governing body of a corporation, or ten percent (10%) or more of the
partnership or other ownership interests of any other person, will be
deemed to be an Affiliate of such corporation, partnership or other
person.
"Indebtedness": The sum of all principal, interest and all other
amounts evidenced by, due under or secured by the Loan Documents,
together with all other direct, indirect, contingent, primary or
secondary indebtedness of any character now or hereafter owing or to be
owing by Grantor to Beneficiary in connection with the Loan Documents
including amounts advanced to pay all or any portion of any indebtedness
now or hereafter secured by the Property, it being contemplated that
Grantor may become further indebted to Beneficiary in the future, and
that Beneficiary may make further advances to or for the benefit or
account of Grantor that will be secured by this Deed of Trust.
"Loan": The Loan made to Grantor by Beneficiary as evidenced and
secured by the Loan Documents.
"Loan Documents": (a) The Loan Agreement (the "Loan Agreement")
of even date herewith, executed by Grantor and Beneficiary, (b) the
Promissory Note of even date
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herewith (the "Note"), executed by Grantor, payable to the order of
Beneficiary, in the stated principal amount of Thirty-Six Million Two
Hundred Eighteen Thousand and No/100 Dollars ($36,218,000.00), (c) this
Deed of Trust, (d) all other documents now or hereafter executed by
Grantor, or any other person or entity, to evidence, secure or guaranty
the payment of all or any portion of the Indebtedness or the performance
of all or any portion of the Obligations or otherwise executed in
connection with the Note or this Deed of Trust, and (e) all
modifications, restatements, extensions, renewals and replacements of
the foregoing.
"Lofts": The following units, as described in the Residential
Sub-Declaration: ▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇,▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇▇, ▇▇▇▇ 300, Loft 301, Loft 302, Loft 303, Loft 304 and Loft 305.
"Mortgaged Property": (a) the real property described in EXHIBIT
A attached hereto and by this reference made a part hereof, together
with any greater estate therein as hereafter may be acquired by Grantor
(the "Units"), (b) all buildings, structures and other improvements, now
or at any time situated, placed or constructed upon the Land (the
"Improvements"), (c) all materials, supplies, equipment, apparatus and
other items of personal property now owned or hereafter acquired by
Grantor and now or hereafter attached to, installed in or used in
connection with any of the Improvements or the Units, and water, gas,
electrical, storm and sanitary sewer facilities and all other utilities
whether or not situated in easements (the "Fixtures"), (d) all right,
title and interest of Grantor in and to all goods, accounts, general
intangibles, instruments, documents, chattel paper and all other
personal property of any kind or character, including such items of
personal property as defined in the UCC, now owned or hereafter acquired
by Grantor and now or hereafter affixed to, placed upon, used in
connection with, arising from or otherwise related to the Units and
Improvements or which may be used in or relating to the planning,
development, financing or operation of the Mortgaged Property,
including, without limitation, furniture, furnishings, equipment,
machinery, money, insurance proceeds, accounts, contract rights,
trademarks, goodwill, chattel paper, documents, trade names, licenses
and/or franchise agreements, rights of Grantor under leases of Fixtures
or other personal property or equipment, inventory, all refundable,
returnable or reimbursable fees, deposits or other funds or evidences of
credit or indebtedness deposited by or on behalf of Grantor with any
governmental authorities, boards, corporations, providers of utility
services, public or private, including specifically, but without
limitation, all refundable, returnable or reimbursable tap fees, utility
deposits, commitment fees and development costs (the "Personalty"), (e)
all reserves, escrows or impounds required under this Deed of Trust and
all deposit accounts maintained by Grantor with respect to the Mortgaged
Property, (f) all plans, specifications, shop drawings and other
technical descriptions prepared for construction, repair or alteration
of the Improvements, and all amendments and modifications thereof (the
"Plans"), (g) all leases, subleases, licenses, concessions, occupancy
agreements, rental contracts, or other agreements (written or oral) now
or hereafter existing relating to the use or occupancy of all or any
part of the Mortgaged Property, together with all guarantees, letters of
credit and other credit support, modifications, extensions and renewals
thereof (whether before or after the filing by or against Grantor of any
petition of relief under 11 U.S.C. ss. 101 et seq., as same may be
amended from time to time (the "Bankruptcy Code")) and all
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related security and other deposits (the "Leases") and all of Grantor's
claims and rights (the "Bankruptcy Claims") to the payment of damages
arising from any rejection by a lessee of any Lease under the Bankruptcy
Code, (h) all of the rents, revenues, issues, income, proceeds, profits,
and all other payments of any kind under the Leases for using, leasing,
licensing, possessing, operating from, residing in, selling or otherwise
enjoying the Mortgaged Property whether paid or accruing before or after
the filing by or against Grantor of any petition for relief under the
Bankruptcy Code (the "Rents"), (i) all other agreements, such as
construction contracts, architects' agreements, engineers' contracts,
utility contracts, maintenance agreements, franchise agreements, service
contracts, permits, licenses, certificates and entitlements in any way
relating to the development, construction, use, occupancy, operation,
maintenance, enjoyment, acquisition or ownership of the Mortgaged
Property (the "Property Agreements"), (j) all rights, privileges,
tenements, hereditaments, rights-of-way, easements, appendages and
appurtenances appertaining to the foregoing, and all right, title and
interest, if any, of Grantor in and to any streets, ways, alleys, strips
or gores of land adjoining the Units or any part thereof, (k) all
accessions, replacements and substitutions for any of the foregoing and
all proceeds thereof, (1) all insurance policies, unearned premiums
therefor and proceeds from such policies covering any of the above
property now or hereafter acquired by Grantor, (m) all mineral, water,
oil and gas rights now or hereafter acquired and relating to all or any
part of the Mortgaged Property, (n) all trade names, trademarks, service
marks, logos, copyrights, goodwill, books and records and all other
general intangibles relating to or used in connection with the operation
of the Mortgaged Property; (o) all of Grantor's right, title and
interest in and to any awards, remunerations, reimbursements,
settlements or compensation heretofore made or hereafter to be made by
any governmental authority pertaining to the Units, Improvements,
Fixtures or Personalty; (p) all rights of Grantor as Declarant under
that certain MASTER CONDOMINIUM DECLARATION FOR M CENTRAL MASTER
CONDOMINIUM (the "MASTER DECLARATION") executed by Borrower as Declarant
and filed September 16, 2005, recorded in Volume 2005182, Page 00111,
Condominium Records of Dallas County, Texas; and all sub-unit
declarations now or hereafter created pursuant to the terms thereof,
including but not limited to that certain . RESIDENTIAL CONDOMINIUM
DECLARATION FOR M CENTRAL RESIDENCES, A CONDOMINIUM (the "RESIDENTIAL
SUB-DECLARATION") filed September 16, 2005, recorded in Volume 2005182,
Page 00204, Condominium Records of Dallas County, Texas, (including, but
not limited to, all Development Rights, Special Declarant Rights and
other rights set forth in Section 3.6 of the Master Declaration), to the
fullest extent that the following rights arise from or relate to, either
directly or indirectly, the Mortgaged Property; and (q) all voting
rights of Grantor (including, but not limited to all voting rights of in
the Master Association) as the owner of the Mortgaged Property. As used
in this Deed of Trust, the term "Mortgaged Property" shall mean all or,
where the context permits or requires, any portion of the above or any
interest therein.
"Obligations": All of the agreements, covenants, conditions,
warranties, representations and other obligations (other than to repay
the Indebtedness) made or undertaken by Grantor or any other person or
entity to Beneficiary or others as set forth in the Loan Documents.
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"Permitted Encumbrances": The outstanding liens, easements,
restrictions, security interests and other exceptions to title set forth
in the policy of title insurance insuring the lien of this Deed of
Trust, together with the liens and security interests in favor of
Beneficiary created by the Loan Documents, none of which, individually
or in the aggregate, materially interfere with the benefits of the
security intended to be provided by this Deed of Trust, materially and
adversely affect the value of the Mortgaged Property or Grantor's
intended use of the Mortgaged Property, impair the use or operations of
the Mortgaged Property or impair Grantor's ability to pay its
obligations in a timely manner.
"Permitted Transfer": (a) Any transfer of any limited
partnership interest in Grantor (but not including any conversion of a
general partnership interest to a limited partnership interest) provided
that BEHRINGER HARVARD MOCKINGBIRD COMMONS INVESTORS LP, a Texas limited
partnership, at all times owns, directly or indirectly, at least
fifty-one percent (51%) of the ownership interests in Grantor, and (b)
any transfer of ownership interests in the general partner of Grantor to
any Affiliate of the Guarantor so long as Guarantor maintains control of
the Affiliate.
"State": The State of Texas.
"UCC": The Uniform Commercial Code of the State or, if the
creation, perfection and enforcement of any security interest herein
granted is governed by the laws of a state other than the State, then,
as to the matter in question, the Uniform Commercial Code in effect in
that state.
ARTICLE 2
GRANT
SECTION 2.1 GRANT. To secure the full and timely payment of the
Indebtedness and the full and timely performance of the Obligations, Grantor
hereby GRANTS, BARGAINS, SELLS, CONVEYS and ASSIGNS to Trustee (and with respect
to any portions of the Mortgaged Property that constitute personal property, to
Beneficiary) the Mortgaged Property subject, however, to the Permitted
Encumbrances; TO HAVE AND TO HOLD the Mortgaged Property to Trustee, IN TRUST,
WITH POWER OF SALE, and Grantor does hereby bind itself, its successors and
assigns to WARRANT AND FOREVER DEFEND the title to the Mortgaged Property unto
Trustee and Beneficiary and their respective successors, substitutes and
assigns.
ARTICLE 3
WARRANTIES, REPRESENTATIONS AND COVENANTS
Grantor warrants, represents and covenants to Beneficiary as follows:
SECTION 3.1 TITLE TO MORTGAGED PROPERTY AND LIEN OF THIS INSTRUMENT.
Grantor owns the Mortgaged Property free and clear of any liens, claims or
interests, except the Permitted Encumbrances. This Deed of Trust creates valid,
enforceable first priority liens and
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security interests against the Mortgaged Property. Grantor warrants that Grantor
has good, indefeasible and insurable title to the Mortgaged Property and has the
full power, authority and right to execute, deliver and perform its obligations
under this Deed of Trust.
SECTION 3.2 FIRST LIEN STATUS. Grantor shall preserve and protect
the first lien and security interest status of this Deed of Trust and the other
Loan Documents. If any lien or security interest other than the Permitted
Encumbrances is asserted against the Mortgaged Property, Grantor shall promptly,
and at its expense, (a) give Beneficiary a detailed written notice of such lien
or security interest (including origin, amount and other terms), and (b) pay the
underlying claim in full or take such other action so as to cause it to be
released or, in Beneficiary's discretion, provide a bond or other security
satisfactory to Beneficiary for the payment of such claim.
SECTION 3.3 PAYMENT AND PERFORMANCE. Grantor shall pay the
Indebtedness when due under the Loan Documents and shall perform the Obligations
in full when they are required to be performed.
SECTION 3.4 REPLACEMENT OF FIXTURES AND PERSONALTY. Grantor shall
not, without the prior written consent of Beneficiary, permit any of the
Fixtures or Personalty to be removed at any time from the Units or Improvements,
unless the removed item is removed temporarily for maintenance and repair or, if
removed permanently, is obsolete and is replaced by an article of equal or
better suitability and value, owned by Grantor subject to the liens and security
interests of this Deed of Trust and the other Loan Documents, and free and clear
of any other lien or security interest except such as may be first approved in
writing by Beneficiary.
SECTION 3.5 MAINTENANCE OF RIGHTS OF WAY, EASEMENTS AND LICENSES.
Grantor shall maintain all rights of way, easements, grants, privileges,
licenses, certificates, permits, entitlements and franchises necessary for the
use of the Mortgaged Property and will not, without the prior consent of
Beneficiary, consent to any public restriction (including any zoning ordinance)
or private restriction as to the use of the Mortgaged Property. Grantor shall
comply with all restrictive covenants affecting the Mortgaged Property, and all
zoning ordinances and other public or private restrictions as to the use of the
Mortgaged Property.
SECTION 3.6 INSPECTION. Grantor shall permit Beneficiary and its
agents, representatives and employees, upon reasonable prior notice to Grantor,
to inspect the Mortgaged Property and conduct such environmental and engineering
studies as Beneficiary may require, provided that such inspections and studies
shall not materially interfere with the use and operation of the Mortgaged
Property.
SECTION 3.7 NOTICES BY GOVERNMENTAL AUTHORITY, TENANT, FIRE AND
CASUALTY LOSSES, ETC. Grantor shall timely comply with and promptly furnish to
Beneficiary, within five (5) days of receipt thereof, true and complete copies
of any official notice or claim by any governmental authority or any tenants
under Leases pertaining to the Mortgaged Property. Grantor shall immediately
notify Beneficiary of any fire or other casualty or any notice of taking or
eminent domain action or proceeding affecting the Mortgaged Property.
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SECTION 3.8 INTENTIONALLY DELETED.
SECTION 3.9 TRANSFER OR ENCUMBRANCE OF MORTGAGED PROPERTY.
(a) Without the prior written consent of Beneficiary,
(i) neither Grantor nor any other person or entity
having an ownership or beneficial interest in Grantor shall (A)
directly or indirectly sell, transfer, convey, mortgage, pledge,
or assign any interest in the Mortgaged Property or any part
thereof (including any partnership, membership, or any other
ownership interest in Grantor); (B) further encumber, alienate,
▇▇▇▇▇ ▇ ▇▇▇▇ or ▇▇▇▇▇ any other interest in the Mortgaged
Property or any part thereof (including any partnership,
membership, or other ownership interest in Grantor), whether
voluntarily or involuntarily; or (C) enter into any easement or
other agreement granting rights in or restricting the use or
development of the Mortgaged Property;
(ii) no new general partner, member, or limited
partner having the ability to control the affairs of Grantor
shall be admitted to or created in Grantor (nor shall any
existing general partner or member or controlling limited
partner withdraw from Grantor), and no change in Grantor's
organizational documents relating to control over Grantor and/or
the Mortgaged Property shall be effected; and
(iii) no transfer shall be permitted which would cause
Guarantor to collectively own less than fifty percent (50%) of
the beneficial interest in the General Partner (as defined in
the Loan Agreement) of Grantor and not to have the power to
direct the affairs of Grantor; provided however, notwithstanding
the above, Permitted Transfers shall be allowed without
Beneficiary's consent.
(b) As used in this Section 3.9, "transfer" shall include
(i) an installment sales agreement wherein Grantor agrees to sell the
Mortgaged Property or any part thereof for a price to be paid in
installments; (ii) an agreement by Grantor leasing all or a substantial
part of the Mortgaged Property for other than actual occupancy by a
space tenant thereunder or a sale, assignment or other transfer of, or
the grant of a security interest in, Grantor's right, title and interest
in and to any Leases or any Rents; (iii) the sale, transfer, conveyance,
mortgage, pledge, or assignment of the legal or beneficial ownership of
any partnership interest in any general partner in Grantor that is a
partnership; (iv) the sale, transfer, conveyance, mortgage, pledge, or
assignment of the legal or beneficial ownership of any voting stock in
any general partner in Grantor that is a corporation; and (v) the sale,
transfer, conveyance, mortgage, pledge, or assignment of any membership
interest in any general partner of Grantor that is a limited liability
company. "Transfer" is specifically intended to include any pledge or
assignment, directly or indirectly, of a controlling interest in Grantor
or its general partner, controlling member, or controlling limited
partner for purposes of securing so-called "mezzanine" indebtedness to
such transferor.
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(c) 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 Indebtedness immediately due and
payable upon Grantor's sale, conveyance, alienation, mortgage,
encumbrance, pledge or transfer of the Mortgaged Property without
Beneficiary's consent. This provision shall apply to every sale,
conveyance, alienation, mortgage, encumbrance, pledge or transfer of the
Mortgaged Property regardless of whether voluntary or not, or whether or
not Beneficiary has consented to any previous sale, conveyance,
alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged
Property.
(d) Beneficiary's consent to one sale, conveyance,
alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged
Property or any interest in Grantor shall not be deemed to be a waiver
of Beneficiary's right to require such consent to any future occurrence
of same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge
or transfer of the Mortgaged Property made in contravention of this
paragraph shall be null and void and of no force and effect.
SECTION 3.10 INTENTIONALLY DELETED.
SECTION 3.11 NOTIFICATION OF ADVERSE CHANGES. Grantor shall promptly
notify Beneficiary of the occurrence of any event or condition which, if not
remedied, would result in a material, adverse change to the financial condition
of Grantor or would materially and adversely affect the value of the Mortgaged
Property or any portion thereof.
SECTION 3.12 INDEMNIFICATION. Grantor agrees to indemnify, defend and
hold Beneficiary harmless from and against any and all claims, charges, actions,
suits, proceedings, lawsuits, obligations, liabilities, fines, penalties, costs
and expenses, including, but not limited to, reasonable attorneys' fees incurred
by Beneficiary, alleged by or in favor of Grantor or any principal, partner,
stockholder, officer, director, employee or agent thereof, or by or in favor of
any broker, realtor, agent or other party claiming brokerage commissions or
finder's fees in connection with the Loan (other than for claims for commissions
or fees claimed by persons or parties employed or engaged by Beneficiary), or in
connection with making or collecting the Loan or enforcing the Loan Documents.
Grantor shall further indemnify Beneficiary and hold Beneficiary harmless
against any and all liabilities (including any and all taxes and special
assessments levied against the Mortgaged Property or any improvements, fixtures,
or personal property located thereon), obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses, and disbursements of any
kind or nature whatsoever which may be imposed on, incurred by, or asserted
against Beneficiary, in any way relating to, or arising out of, the Loan
Documents or any of the transactions contemplated therein, or the construction
and/or operation of the Mortgaged Property (except claims caused by the gross
negligence or willful misconduct of Beneficiary), to the extent that any such
indemnified liabilities result, directly or indirectly, from any claims made or
actions, suits, or proceedings commenced by or on behalf of any person or entity
other than Beneficiary. The obligations and provisions of this paragraph shall
continue and remain in full force and effect after the Loan and other
obligations of Grantor under this Deed of Trust and under the other Loan
Documents have been paid or discharged in full and shall survive the termination
of this Deed of Trust and the repayment of the Loan.
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SECTION 3.13 PAYMENT OF TAXES. Grantor shall pay or cause to be paid
before delinquent, all taxes and assessments of every character in respect of
the Mortgaged Property, or any part thereof, and promptly thereafter deliver to
Beneficiary evidence satisfactory to Beneficiary of the timely payment of such
taxes and assessments.
SECTION 3.14 TAX AND INSURANCE IMPOUNDS. If an Event of Default
occurs hereunder, at Beneficiary's option and upon its demand, Grantor shall,
until all Indebtedness has been paid in full, pay to Beneficiary monthly,
annually or as otherwise directed by Beneficiary an amount estimated by
Beneficiary to be equal to (a) all taxes, assessments, levies and charges
imposed by any public or quasi-public authority which are or may become a lien
upon the Mortgaged Property and will become due for the tax year during which
such payment is so directed, and (b) premiums for fire, hazard and insurance
required pursuant to the Loan Documents when same are next due. If Beneficiary
reasonably determines that any amounts paid by Grantor are insufficient for the
payment of such taxes, assessments, levies, charges and/or insurance premiums,
Beneficiary shall notify Grantor of the increased amounts required to pay all
amounts when due, whereupon Grantor shall pay to Beneficiary within thirty (30)
days thereafter the additional amount as stated in Beneficiary's notice. Upon an
Event of Default, Beneficiary may apply all or any part of such deposits to the
payment of any of the Indebtedness.
SECTION 3.15 HAZARDOUS MATERIALS REPRESENTATIONS AND WARRANTIES.
(a) HAZARDOUS MATERIALS. To the knowledge of Grantor, the
Units and Improvements are not and have not been a site for the use,
generation, manufacture, storage, treatment, release, threatened
release, discharge, disposal, transportation or presence of any oil,
flammable explosives, asbestos, urea formaldehyde insulation,
radioactive materials, hazardous wastes, toxic or contaminated
substances or similar materials, including, without limitation, any
substances which are "hazardous substances", "hazardous wastes",
"hazardous materials" or "toxic substances" under the Hazardous
Materials Laws, as described below, and/or other applicable
environmental laws, ordinances or regulations (collectively, the
"Hazardous Materials"), except in compliance with applicable law and as
may be set forth in any written environmental report delivered to
Beneficiary prior to the date hereof. "Hazardous Materials" shall not
include commercially reasonable amounts of such materials used in the
ordinary course of operation of the Mortgaged Property which are used
and stored in compliance with all applicable Hazardous Materials Laws.
(b) HAZARDOUS MATERIALS LAWS. To the knowledge of Grantor,
the Units and Improvements are in compliance with all laws, ordinances
and regulations relating to Hazardous Materials ("Hazardous Materials
Laws"), including, without limitation: the Clean Air Act, as amended, 42
U.S.C. Section 7401 ET SEQ.; the Federal Water Pollution Control Act, as
amended, 33 U.S.C. Section 1251 ET SEQ.; the Resource Conservation and
Recovery Act of 1976, as amended, 42 U.S.C. Section 6901 ET SEQ.; the
Comprehensive Environment Response, Compensation and Liability Act of
1980, as amended (including the Superfund Amendments and Reauthorization
Act of 1986, "CERCLA"), 42 U.S.C. Section 9601 ET SEQ.; the Toxic
Substances Control Act, as amended, 15 U.S.C. Section
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2601 ET SEQ.; the Occupational Safety and Health Act, as amended, 29
U.S.C. Section 651, the Emergency Planning and Community Right-to-Know
Act of 1986, 42 U.S.C. Section 11001 ET SEQ.; the Mine Safety and Health
Act of 1977, as amended, 30 U.S.C. Section 801 ET SEQ.; the Safe
Drinking Water Act, 42 U.S.C. Section 300f ET SEQ.; and, all comparable
state and local laws, laws of other jurisdictions or orders and
regulations (including, without limitation, the Texas Water Code, the
Texas Health & Safety Code and the Texas Solid Waste Disposal Act).
(c) HAZARDOUS MATERIALS CLAIMS. There are no claims or
actions ("Hazardous Materials Claims") pending or threatened against
Grantor or the Mortgaged Property by any Governmental Authority or by
any other person or entity relating to Hazardous Materials or pursuant
to the Hazardous Materials Laws.
(d) STORAGE TANKS. No storage tanks (including, without
limitation, petroleum or heating oil storage tanks), underground or
above-ground, are present on or under the Units or have been on or under
the Units, except as may be disclosed in any written environmental
report delivered to Beneficiary prior to the date hereof.
SECTION 3.16 HAZARDOUS MATERIALS COVENANTS.
(a) NO HAZARDOUS ACTIVITIES. Grantor shall not cause or
permit the Units or Improvements to be used as a site for the use,
generation, manufacture, storage, treatment, release, discharge,
disposal, transportation or presence of any Hazardous Materials except
in compliance with all applicable Hazardous Materials Laws.
(b) COMPLIANCE. Grantor shall comply and cause the Units and
Improvements to comply with all Hazardous Materials Laws.
(c) NOTICES. Grantor shall promptly notify Beneficiary in
writing of: (i) the discovery of any Hazardous Materials on, under or
about the Units and Improvements; (ii) any knowledge by Grantor that the
Units and Improvements do not comply with any Hazardous Materials Laws;
(iii) any Hazardous Materials Claims; and (iv) any knowledge of Grantor
with respect to the discovery of any occurrence or condition involving
Hazardous Materials in, on or under the real property adjoining or in
the vicinity of the Units.
(d) REMEDIAL ACTION. In response to the presence of any
Hazardous Materials on, under or about the Units or Improvements,
Grantor shall immediately take, at Grantor's sole expense, all remedial
action required by any Hazardous Materials Laws or any judgment, consent
decree, settlement or compromise in respect to any Hazardous Materials
Claims.
SECTION 3.17 INTENTIONALLY DELETED.
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SECTION 3.18 COMPLIANCE WITH LAWS. Grantor shall promptly comply with
all governmental laws, ordinances and regulations applicable to the Mortgaged
Property and Grantor's use and operation of the Mortgaged Property.
SECTION 3.19 MAINTENANCE OF MORTGAGED PROPERTY. Grantor shall at all
times maintain, preserve and keep the Mortgaged Property in good repair and
condition and from time to time make all necessary and proper repairs and
replacements and not commit or permit any waste on or of the Mortgaged Property
and not do anything to the Mortgaged Property that may materially impair its
value.
SECTION 3.20 INTENTIONALLY DELETED.
ARTICLE 4
DEFAULT AND FORECLOSURE
SECTION 4.1 EVENTS OF DEFAULT. The term "Event of Default," shall
have the meaning given in the Loan Agreement.
SECTION 4.2 REMEDIES. If an Event of Default occurs, Beneficiary
may, at Beneficiary's election, and by or through Trustee or otherwise, exercise
any or all of the following rights, remedies and recourses:
(a) ACCELERATION. Declare the Indebtedness to be immediately
due and payable, without further notice, presentment, protest, notice of
intent to accelerate, notice of acceleration, demand or action of any
nature whatsoever (each of which hereby is expressly waived by Grantor),
whereupon the same shall become immediately due and payable.
(b) ENTRY ON MORTGAGED PROPERTY. Enter the Mortgaged
Property and take exclusive possession thereof and of all books, records
and accounts relating thereto. If Grantor remains in possession of the
Mortgaged Property after an Event of Default and without Beneficiary's
prior written consent, Beneficiary may invoke any legal remedies to
dispossess Grantor.
(c) OPERATION OF MORTGAGED PROPERTY. Hold, lease, develop,
manage, operate or otherwise use the Mortgaged Property upon such terms
and conditions as Beneficiary may deem reasonable under the
circumstances (making such repairs, alterations, additions and
improvements and taking other actions, from time to time, as Beneficiary
deems necessary or desirable), and apply all Rents and other amounts
collected by Beneficiary or Trustee in connection therewith in
accordance with the provisions of Section 4.8.
(d) FORECLOSURE AND SALE. Sell or offer for sale the
Mortgaged Property in such portions, order and parcels as Beneficiary
may determine, with or without having first taken possession of same, to
the highest bidder for cash at public auction. Such sale shall be made
in accordance with the applicable provisions of Section 51.002 of the
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Texas Property Code, as amended, or, if and to the extent such statute
is not then in force, with the applicable requirements, at the time of
the sale, of the successor statute or statutes, if any, governing sales
of Texas real property under powers of sale conferred by deeds of trust
relating to the sale of real estate or by Chapter 9 of the UCC relating
to the sale of collateral after default by a debtor (as such laws now
exist or may be hereafter amended or succeeded), or by any other present
or subsequent articles or enactments relating to same. At any such sale
(i) whether made under the power herein contained, the UCC, any other
legal requirement or by virtue of any judicial proceedings or any other
legal right, remedy or recourse, it shall not be necessary for Trustee
to be physically present, or to have constructive possession of, the
Mortgaged Property (Grantor shall deliver to Trustee any portion of the
Mortgaged Property not actually or constructively possessed by Trustee
immediately upon demand by Trustee), and the title to and right of
possession of any such property shall pass to the purchaser thereof as
completely as if Trustee had been actually present and delivered to
purchaser at such sale, (ii) each instrument of conveyance executed by
Trustee shall contain a general warranty of title, binding upon Grantor,
(iii) each recital contained in any instrument of conveyance made by
Trustee shall conclusively establish the truth and accuracy of the
matters recited therein, including, without limitation, nonpayment of
the Indebtedness, advertisement and conduct of such sale in the manner
provided herein and otherwise by law, and appointment of any successor
Trustee hereunder, (iv) any prerequisites to the validity of such sale
shall be conclusively presumed to have been performed, (v) the receipt
of Trustee or other party making the sale shall be a sufficient
discharge to the purchaser or purchasers for his or their purchase money
and no such purchaser or purchasers, or his or their assigns or personal
representatives, shall thereafter be obligated to see to the application
of such purchase money or be in any way answerable for any loss,
misapplication or non-application thereof, and (vi) to the fullest
extent permitted by law, Grantor shall be completely and irrevocably
divested of all of its right, title, interest, claim and demand
whatsoever, either at law or in equity, in and to the property sold and
such sale shall be a perpetual bar both at law and in equity against
Grantor, and against all other persons claiming or to claim the property
sold or any part thereof, by, through or under Grantor. Beneficiary may
be a purchaser at such sale and if Beneficiary is the highest bidder,
may credit the portion of the purchase price that would be distributed
to Beneficiary against the Indebtedness in lieu of paying cash.
(e) RECEIVER. Make application to a court of competent
jurisdiction for, and obtain from such court as a matter of strict right
and without notice to Grantor or regard to the adequacy of the Mortgaged
Property for the repayment of the Indebtedness, the appointment of a
receiver of the Mortgaged Property, and Grantor irrevocably consents to
such appointment. Any such receiver shall have all the usual powers and
duties of receivers in similar cases, including the full power to rent,
maintain and otherwise operate the Mortgaged Property upon such terms as
may be approved by the court, and shall apply such Rents in accordance
with the provisions of Section 4.8.
(f) UCC. Exercise any and all rights and remedies granted to
a secured party upon default under the Uniform Commercial Code,
including, without limiting the generality of the foregoing: (i) the
right to take possession of the personal property or any
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part thereof, and to take such other measures as Beneficiary may deem
necessary for the care, protection and preservation of the personal
property, and (ii) request Grantor at its expense to assemble the
personal property and make it available to Beneficiary at a convenient
place acceptable to Beneficiary. Any notice of sale, disposition or
other intended action by Beneficiary with respect to the personal
property sent to Grantor in accordance with the provisions hereof at
least five (5) days prior to such action, shall constitute commercially
reasonable notice to Grantor.
(g) OTHER. Exercise all other rights, remedies and recourses
granted under the Loan Documents or otherwise available at law or in
equity (including an action for specific performance of any covenant
contained in the Loan Documents, or a judgment on the Note either
before, during or after any proceeding to enforce this Deed of Trust).
SECTION 4.3 SEPARATE SALES. The Mortgaged Property may be sold in
one or more parcels and in such manner and order as Trustee, in his sole
discretion, may elect; the right of sale arising out of any Event of Default
shall not be exhausted by any one or more sales.
SECTION 4.4 REMEDIES CUMULATIVE, CONCURRENT AND NONEXCLUSIVE.
Beneficiary shall have all rights, remedies and recourses granted in the Loan
Documents and available at law or equity (including the UCC), which rights (a)
shall be cumulative and concurrent, (b) may be pursued separately, successively
or concurrently against Grantor or others obligated under the Note and the other
Loan Documents, or against the Mortgaged Property, or against any one or more of
them, at the sole discretion of Beneficiary, (c) may be exercised as often as
occasion therefor shall arise, and the exercise or failure to exercise any of
them shall not be construed as a waiver or release thereof or of any other
right, remedy or recourse, and (d) are intended to be, and shall be,
nonexclusive. No action by Beneficiary in the enforcement of any rights,
remedies or recourses under the Loan Documents or otherwise at law or equity
shall be deemed to cure any Event of Default.
SECTION 4.5 RELEASE OF AND/OR RESORT TO COLLATERAL. Beneficiary may
release, regardless of consideration and without the necessity for any notice to
or consent by the holder of any subordinate lien on the Mortgaged Property, any
part of the Mortgaged Property without, as to the remainder, in any way
impairing, affecting, subordinating or releasing the lien or security interests
created in or evidenced by the Loan Documents or their stature as a first and
prior lien and security interest in and to the Mortgaged Property.
SECTION 4.6 WAIVER OF REDEMPTION, NOTICE AND MARSHALLING OF ASSETS.
To the fullest extent permitted by law, Grantor hereby irrevocably and
unconditionally waives and releases (a) all benefit that might accrue to Grantor
by virtue of any present or future statute of limitations or law or judicial
decision exempting the Mortgaged Property from attachment, levy or sale on
execution or providing for any appraisement, valuation, stay of execution,
exemption from civil process, redemption or extension of time for payment, (b)
all notices of Trustee's election to exercise or his actual exercise of any
right, remedy or recourse provided for under the Loan Documents, and (c) any
right to a marshalling of assets or a sale in inverse order of alienation.
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SECTION 4.7 DISCONTINUANCE OF PROCEEDINGS. If Beneficiary shall have
proceeded to invoke any right, remedy or recourse permitted under the Loan
Documents and shall thereafter elect to discontinue or abandon it for any
reason, Beneficiary shall have the unqualified right to do so and, in such an
event, Grantor and Beneficiary shall be restored to their former positions with
respect to the Indebtedness, the Obligations, the Loan Documents, the Mortgaged
Property and otherwise, and the rights, remedies, recourses and powers of
Beneficiary shall continue as if the right, remedy or recourse had never been
invoked, but no such discontinuance or abandonment shall waive any Event of
Default which may then exist or the right of Beneficiary thereafter to exercise
any right, remedy or recourse under the Loan Documents for such Event of
Default.
SECTION 4.8 APPLICATION OF PROCEEDS. The proceeds of any sale of,
and the Rents and other amounts generated by the holding, leasing, management,
operation or other use of the Mortgaged Property, shall be applied by
Beneficiary or Trustee (or the receiver, if one is appointed) in the following
order unless otherwise required by applicable law:
(a) to the payment of the reasonable costs and expenses of
taking possession of the Mortgaged Property and of holding, using,
leasing, repairing, improving and selling the same, including, without
limitation (i) Trustee's and receiver's fees and expenses, (ii) court
costs, (iii) reasonable attorneys' and accountants' fees and expenses,
(iv) costs of advertisement, (v) insurance premiums and (vi) the payment
of all ground rent, real estate taxes and assessments, except any taxes,
assessments or other charges subject to which the Mortgaged Property
shall have been sold;
(b) to the payment of all amounts (including interest),
other than the unpaid principal balance of the Note and accrued but
unpaid interest, which may be due to Beneficiary under the Loan
Documents;
(c) to the payment of the Indebtedness and performance of
the Obligations in such manner and order of preference as Beneficiary in
its sole discretion may determine; and
(d) the balance, if any, to the payment of the persons
legally entitled thereto.
SECTION 4.9 OCCUPANCY AFTER FORECLOSURE. The purchaser at any
foreclosure sale pursuant to Section 4.2(d) shall become the legal owner of the
Mortgaged Property. All occupants of the Mortgaged Property shall, at the option
of such purchaser, become tenants of the purchaser at the foreclosure sale and
shall deliver possession thereof immediately to the purchaser upon demand. It
shall not be necessary for the purchaser at said sale to bring any action for
possession of the Mortgaged Property other than the statutory action of forcible
detainer in any justice court having jurisdiction over the Mortgaged Property.
SECTION 4.10 ADDITIONAL ADVANCES AND DISBURSEMENTS; COSTS OF
ENFORCEMENT.
(a) If any Event of Default exists, Beneficiary shall have
the right, but not the obligation, to cure such Event of Default in the
name and on behalf of Grantor. All sums
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advanced and expenses incurred at any time by Beneficiary under this
Section 4.10, or otherwise under this Deed of Trust or any of the other
Loan Documents or applicable law, shall bear interest from the date that
such sum is advanced or expense incurred, to and including the date of
reimbursement, computed at the Default Rate (as defined in the Note),
and all such sums, together with interest thereon, shall be secured by
this Deed of Trust.
(b) Grantor shall pay all expenses (including reasonable
attorneys' fees and expenses) of or incidental to the perfection and
enforcement of this Deed of Trust and the other Loan Documents, or the
enforcement, compromise or settlement of the Indebtedness or any claim
under this Deed of Trust and the other Loan Documents, and for the
curing thereof, or for defending or asserting the rights and claims of
Beneficiary in respect thereof, by litigation or otherwise.
SECTION 4.11 NO MORTGAGEE IN POSSESSION. Neither the enforcement of
any of the remedies under this Article 4, the assignment of the Rents and Leases
under Article 5, the security interests under Article 6, nor any other remedies
afforded to Beneficiary under the Loan Documents, at law or in equity shall
cause Beneficiary to be deemed or construed to be a mortgagee in possession of
the Mortgaged Property, to obligate Beneficiary to lease the Mortgaged Property
or attempt to do so, or to take any action, incur any expense, or perform or
discharge any obligation, duty or liability whatsoever under any of the Leases
or otherwise.
SECTION 4.12 ACTIONS AND PROCEEDINGS. Beneficiary has the right to
appear in and defend any action or proceeding brought with respect to the
Mortgaged Property and to bring any action or proceeding, in the name and on
behalf of Grantor, which Beneficiary, in its discretion, decides should be
brought to protect its interest in the Mortgaged Property.
ARTICLE 5
ASSIGNMENT OF RENTS AND LEASES
SECTION 5.1 ASSIGNMENT. Grantor hereby irrevocably assigns to
Beneficiary all of Grantor's right, title and interest in, to and under: (a) all
leases of the Mortgaged Property or any portion thereof, and all other
agreements of any kind relating to the use or occupancy of the Mortgaged
Property or any portion thereof, whether now existing or entered into after the
date hereof ("Leases") and all amounts payable and all rights and benefits
accruing to Grantor; and (b) the rents, revenue, income, issues, deposits and
profits of the Mortgaged Property, including, without limitation, all amounts
payable and all rights and benefits accruing to Grantor under the Leases
("Rents"). The terms "Leases" shall also include all guarantees of and security
for the lessees' performance thereunder, and all amendments, extensions,
renewals or modifications thereto which are permitted hereunder. This is a
present and absolute assignment, not an assignment for security purposes only,
and Beneficiary's right to the Leases and Rents is not contingent upon, and may
be exercised without possession of, the Mortgaged Property.
SECTION 5.2 GRANT OF LICENSE. Beneficiary confers upon Grantor a
license (the "License") to collect and retain the Rents as they become due and
payable, until the occurrence of an Event of Default. Upon an Event of Default,
the License shall be automatically revoked
14
and Beneficiary may collect and apply the Rents pursuant to Section 4.8 without
notice and without taking possession of the Mortgaged Property. Grantor hereby
irrevocably authorizes and directs the lessees under the Leases to rely upon and
comply with any notice or demand by Beneficiary for the payment to Beneficiary
of any rental or other sums which may at any time become due under the Leases,
or for the performance of any of the lessees' undertakings under the Leases, and
the lessees shall have no right or duty to inquire as to whether any Event of
Default has actually occurred or is then existing hereunder. Grantor hereby
relieves the lessees from any liability to Grantor by reason of relying upon and
complying with any such notice or demand by Beneficiary.
SECTION 5.3 EFFECT OF ASSIGNMENT. The foregoing irrevocable
assignment shall not cause Beneficiary to be: (a) a mortgagee in possession; (b)
responsible or liable for the control, care, management or repair of the
Mortgaged Property or for performing any of the terms, agreements, undertakings,
obligations, representations, warranties, covenants and conditions of the
Leases; or (c) responsible or liable for any waste committed on the Mortgaged
Property by the lessees under any of the Leases or any other parties; for any
dangerous or defective condition of the Mortgaged Property; or for any
negligence in the management, upkeep, repair or control of the Mortgaged
Property resulting in loss or injury or death to any lessee, license, employee,
invitee or other person. Beneficiary and Trustee shall not directly or
indirectly be liable to Grantor or any other person as a consequence of: (i) the
exercise or failure to exercise by Beneficiary or Trustee, or any of their
respective employees, agents, contractors or subcontractors, any of the rights,
remedies or powers granted to Beneficiary or Trustee hereunder; or (ii) the
failure or refusal of Beneficiary to perform or discharge any obligation, duty
or liability of Grantor arising under the Leases.
ARTICLE 6
SECURITY AGREEMENT
SECTION 6.1 SECURITY INTEREST. This Deed of Trust constitutes a
"Security Agreement" on personal property within the meaning of the UCC and
other applicable law with respect to the Personalty, Fixtures, Plans, Leases,
Rents and Property Agreements. To this end, Grantor grants to Trustee and
Beneficiary, a first and prior security interest in the Personalty, Fixtures,
Plans, Leases, Rents and Property Agreements and all other Mortgaged Property
which is personal property to secure the payment of the Indebtedness and
performance of the Obligations, and agrees that Beneficiary shall have all the
rights and remedies of a secured party under the UCC with respect to such
property. Any notice of sale, disposition or other intended action by
Beneficiary with respect to the Personalty, Fixtures, Plans, Leases, Rents and
Property Agreements sent to Grantor at least five (5) days prior to any action
under the UCC shall constitute reasonable notice to Grantor.
SECTION 6.2 FINANCING STATEMENTS. Grantor shall execute and deliver
to Beneficiary, in form and substance satisfactory to Beneficiary, such
financing statements and such further assurances as Beneficiary may, from time
to time, reasonably consider necessary to create, perfect and preserve
Beneficiary's security interest hereunder and Beneficiary may cause such
statements and assurances to be recorded and filed, at such times and places as
may be required
15
or permitted by law to so create, perfect and preserve such security interest.
Grantor's chief executive office is in the State at the address set forth in the
first paragraph of this Deed of Trust.
SECTION 6.3 NO OBLIGATION OF TRUSTEE OR BENEFICIARY. The security
interest herein granted shall in no event cause Trustee or Beneficiary to be
deemed or construed as a mortgagee in possession of the Mortgaged Property, to
obligate Trustee or Beneficiary to lease the Mortgaged Property or attempt to do
so, or to take any action, incur any expense or perform or discharge any
obligation, duty or liability whatsoever under any of the Leases or otherwise.
SECTION 6.4 FIXTURE FILING. This Deed of Trust shall also constitute
a "fixture filing" for the purposes of the UCC against all of the Mortgaged
Property which is or is to become fixtures. Information concerning the security
interest herein granted may be obtained at the addresses of Debtor (Grantor) and
Secured Party (Beneficiary) as set forth in the first paragraph of this Deed of
Trust.
SECTION 6.5 CONTINUING EFFECT NOTWITHSTANDING TERMINATION OF DEED OF
TRUST. It is expressly agreed that until such time as the Indebtedness and
Obligations have been paid and performed in full, or until the security interest
granted hereby has been released in writing by Beneficiary, this Deed of Trust
shall remain fully effective as a security agreement, notwithstanding that the
lien on real property that is created by this Deed of Trust may be extinguished
or released, by foreclosure of this Deed of Trust or otherwise.
ARTICLE 7
CONCERNING THE TRUSTEE
SECTION 7.1 CERTAIN RIGHTS. With the approval of Beneficiary,
Trustee shall have the right to select, employ and consult with counsel. 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, believed by him in good faith to be genuine. Trustee shall be
entitled to reimbursement for actual, reasonable expenses incurred by him in the
performance of his duties hereunder. Grantor shall, from time to time, pay the
compensation due to Trustee hereunder and reimburse Trustee for, and indemnify,
defend and save Trustee harmless against, all liability and reasonable expenses
which may be incurred by him in the performance of his duties. Grantor's
obligations under this Section 7.1 shall not be reduced or impaired by
principles of comparative or contributory negligence.
SECTION 7.2 RETENTION OF MONEY. All moneys received by Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received. but need not be segregated in any manner
from any other moneys (except to the extent required by law), and Trustee shall
be under no liability for interest on any moneys received by him hereunder.
SECTION 7.3 SUCCESSOR TRUSTEES. If Trustee or any successor Trustee
shall die, resign or become disqualified from acting in the execution of this
trust, or Beneficiary shall desire to appoint a substitute Trustee, Beneficiary
shall have full power to appoint one or more substitute Trustees and, if
preferred, several substitute Trustees in succession who shall succeed to all
the
16
estates, rights, powers and duties of Trustee. Such appointment may be executed
by any authorized agent of Beneficiary, and as so executed, such appointment
shall be conclusively presumed to be executed with authority, valid and
sufficient, without further proof of any action.
SECTION 7.4 PERFECTION OF APPOINTMENT. Should any deed, conveyance
or instrument of any nature be required from Grantor by any successor Trustee to
more fully and certainly vest in and confirm to such successor Trustee such
estates, rights, powers and duties, then, upon request by such Trustee, all such
deeds, conveyances and instruments shall be made, executed, acknowledged and
delivered and shall be caused to be recorded and/or filed by Grantor.
ARTICLE 8
MISCELLANEOUS
SECTION 8.1 LIMITATION ON INTEREST. It is the intention of the
parties hereto to conform strictly to applicable usury laws. Accordingly, all
agreements between Grantor and Beneficiary with respect to the Loan are hereby
expressly limited so that in no event, whether by reason of acceleration of
maturity or otherwise, shall the amount paid or agreed to be paid to Beneficiary
or charged by Beneficiary for the use, forbearance or detention of the money to
be lent hereunder or otherwise, exceed the maximum amount allowed by law. If the
Loan would be usurious under applicable law (including the laws of the state
where the Mortgaged Property is located and the laws of the United States of
America), then, notwithstanding anything to the contrary in the Loan Documents:
(a) the aggregate of all consideration which constitutes interest under
applicable law that is contracted for, taken, reserved, charged or received
under the Loan Documents shall under no circumstances exceed the maximum amount
of interest allowed by applicable law, and any excess shall be credited on the
Indebtedness; and (b) if maturity is accelerated by reason of an election by
Beneficiary, or in the event of any prepayment, then any consideration which
constitutes interest may never include more than the maximum amount allowed by
applicable law. In such case, excess interest, if any, provided for in the Loan
Documents or otherwise, to the extent permitted by applicable law, shall be
amortized, prorated, allocated and spread from the date of advance until payment
in full so that the actual rate of interest is uniform through the term hereof.
If such amortization, proration, allocation and spreading is not permitted under
applicable law, then such excess interest shall be canceled automatically as of
the date of such acceleration or prepayment and, if theretofore paid, shall be
credited on the Indebtedness. The Loan Documents are contracts made under and
shall be construed in accordance with and governed by the laws of the State,
except that if at any time the laws of the United States of America permit
Beneficiary to contract for, take, reserve, charge or receive a higher rate of
interest than is allowed by the laws of the State (whether such federal laws
directly so provide or refer to the law of any state), then such federal laws
shall to such extent govern as to the rate of interest which Beneficiary may
contract for, take, reserve, charge or receive under the Loan Documents.
SECTION 8.2 NOTICES. Any notice required or permitted to be given
under this Deed of Trust shall be in writing and shall be mailed by certified
mail, postage prepaid, return receipt requested, or sent by overnight air
courier service, or personally delivered to a representative of the receiving
party, or sent by telecopy (provided an identical notice is also sent
simultaneously by mail, overnight courier, or personal delivery as otherwise
provided in this Section 8.2). All
17
such communications shall be mailed, sent or delivered, addressed to the party
for whom it is intended at its address set forth below.
If to Grantor: Behringer Harvard Mockingbird Commons LP
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention:Chief Legal Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile No.: 214.373-8768
If to Beneficiary: American National Bank of Texas
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: 214.863.6410
with a copy to: Cherry, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Facsimile No.: 214.265.7008
SECTION 8.3 COVENANTS RUNNING WITH THE UNITS. All Obligations
contained in this Deed of Trust are intended by Grantor, Beneficiary and Trustee
to be, and shall be construed as, covenants running with the Mortgaged Property.
As used herein, "Grantor" shall refer to the party named in the first paragraph
of this Deed of Trust and to any subsequent owner of all or any portion of the
Mortgaged Property (without in any way implying that Beneficiary has or will
consent to any such conveyance or transfer of the Mortgaged Property). All
persons or entities who may have or acquire an interest in the Mortgaged
Property shall be deemed to have notice of, and be bound by, the terms of the
Loan Documents; however, no such party shall be entitled to any rights
thereunder without the prior written consent of Beneficiary.
SECTION 8.4 ATTORNEY-IN-FACT. Grantor hereby irrevocably appoints
Beneficiary and its successors and assigns, as its attorney-in-fact, which
agency is coupled with an interest, (a) to execute and/or record any notices of
completion, cessation of labor or any other notices that Beneficiary deems
appropriate to protect Beneficiary's interest, if Grantor shall fail to do so
within ten (10) days after written request by Beneficiary, (b) upon the issuance
of a deed pursuant to the foreclosure of this Deed of Trust or the delivery of a
deed in lieu of foreclosure, to execute all instruments of assignment,
conveyance or further assurance with respect to the Leases, Rents, Personalty,
Fixtures, Plans and Property Agreements in favor of the grantee of any such deed
and as may be necessary or desirable for such purpose, (c) to prepare, execute
and
18
file or record financing statements, continuation statements, applications for
registration and like papers necessary to create, perfect or preserve
Beneficiary's security interests and rights in or to any of the collateral, and
(d) while any Event of Default exists, to perform any obligation of Grantor
hereunder; however: (i) Beneficiary shall not under any circumstances be
obligated to perform any obligation of Grantor; (ii) any sums advanced by
Beneficiary in such performance shall be added to and included in the
Indebtedness and shall bear interest at the Default Rate; (iii) Beneficiary as
such attorney-in-fact shall only be accountable for such funds as are actually
received by Beneficiary; and (iv) Beneficiary shall not be liable to Grantor or
any other person or entity for any failure to take any action which it is
empowered to take under this Section.
SECTION 8.5 SUCCESSORS AND ASSIGNS. This Deed of Trust shall be
binding upon and inure to the benefit of Beneficiary and Grantor and their
respective successors and assigns. Grantor shall not, without the prior written
consent of Beneficiary, assign any rights, duties or obligations hereunder.
SECTION 8.6 NO WAIVER. Any failure by Trustee or Beneficiary to
insist upon strict performance of any of the terms, provisions or conditions of
the Loan Documents shall not be deemed to be a waiver of same, and Trustee or
Beneficiary shall have the right at any time to insist upon strict performance
of all of such terms, provisions and conditions.
SECTION 8.7 SUBROGATION. To the extent proceeds of the Note have
been used to extinguish, extend or renew any indebtedness against the Mortgaged
Property, then Beneficiary shall be subrogated to all of the rights, liens and
interests existing against the Mortgaged Property and held by the holder of such
indebtedness and such former rights, liens and interests, if any, are not
waived, but are continued in full force and effect in favor of Beneficiary.
SECTION 8.8 RELEASE OR RECONVEYANCE. Upon payment in full of the
Indebtedness and performance in full of the Obligations, Beneficiary, at
Grantor's expense, shall release the liens and security interests created by
this Deed of Trust or reconvey the Mortgaged Property to Grantor, as applicable.
SECTION 8.9 WAIVER OF STAY, MORATORIUM AND SIMILAR RIGHTS. Grantor
agrees, to the full extent that it may lawfully do so, that it will not at any
time insist upon or plead or in any way take advantage of any appraisement,
valuation, stay, marshalling of assets, extension, redemption or moratorium law
now or hereafter in force and effect so as to prevent or hinder the enforcement
of the provisions of this Deed of Trust or the indebtedness secured hereby, or
any agreement between Grantor and Beneficiary or any rights or remedies of
Beneficiary.
SECTION 8.10 OBLIGATIONS OF GRANTOR, JOINT AND SEVERAL. If more than
one person or entity has executed this Deed of Trust as "Grantor," the
obligations of all such persons or entities hereunder shall be joint and
several.
SECTION 8.11 GOVERNING LAW. THIS DEED OF TRUST SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF TEXAS AND THE APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
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SECTION 8.12 HEADINGS. The Article, Section and Subsection titles
hereof are inserted for convenience of reference only and shall in no way alter,
modify or define, or be used in construing, the text of such Articles, Sections
or Subsections.
SECTION 8.13 ENTIRE AGREEMENT. This Deed of Trust and the other Loan
Documents embody the entire agreement and understanding between Beneficiary and
Grantor and supersede all prior agreements and understandings between such
parties relating to the subject matter hereof and thereof. Accordingly, the Loan
Documents may not be contradicted by evidence of prior, contemporaneous or
subsequent oral agreements of the parties. There are no unwritten oral
agreements between the parties.
SECTION 8.14 COUNTERPARTS. This Deed of Trust may be executed in
multiple counterparts, each of which shall constitute an original, but all of
which shall constitute one document.
SECTION 8.15 PARTIAL RELEASES. Notwithstanding anything to the
contrary contained in the Loan Documents, provided that an Event of Default has
not occurred and is continuing or an event or condition has not occurred which
with notice or the passing of time, or both, would become an Event of Default,
under the Loan Documents, Beneficiary will grant a release of the lien of this
Deed of Trust against any Loft that is part of the Mortgaged Property that is
subject to an arms length contract of sale for fair market value upon the
payment by Grantor to Beneficiary of an amount equal to (the "Partial Release
Price"): the greater of (i) one hundred percent (100%) of the Net Sales Proceeds
(as defined below) of the Loft, or (ii) the product of TWO HUNDRED EIGHTY AND
NO/100 DOLLARS ($280.00) multiplied by the gross square feet contained within
the subject Loft as such square footage is determined by the Residential
Sub-Declaration. As used herein, the term "Net Sales Proceeds" shall mean the
amount of money and any other consideration by which the proceeds from the sale
of the Mortgaged Property exceed the actual out of pocket, customary and
reasonable third party direct sales expenses, including, without limitation,
brokerage commissions, attorneys' fees, title company expenses, and any other
customary charges and fees due on a real estate transaction in Dallas, Texas.
SECTION 8.16 AMENDED AND RESTATED DEED OF TRUST. This Deed of Trust
amends, modifies, renews, extends, restates and replaces that certain Deed of
Trust, Security Agreement and Financing Statement (the "ORIGINAL DEED OF TRUST")
datedNovember 8, 2004, executed by Grantor to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and/or ▇▇▇▇ ▇.
▇'▇▇▇▇, as Trustee, for the benefit of Texans Commercial Capital, LLC, as
beneficiary thereunder, filed of record in the Real Property Records of Dallas
County, Texas which Original Deed of Trust was subsequently assigned, conveyed
and transferred as of the date hereof to Beneficiary and which secured that
certain Promissory Note (the "ORIGINAL NOTE") dated November 8, 2004, in the
original principal amount of SEVENTEEN MILLION AND NO/100 DOLLARS
($17,000,000.00) executed by Grantor, as the maker thereof, and payable to the
order of Texans Commercial Capital, LLC, as the payee thereof, which Original
Note has been subsequently assigned and endorsed as of the date hereof to
Beneficiary. The Note is entitled to all of the liens, benefits and priorities
of the Original Note as secured by the Original Deed of Trust as restated and
replaced hereby.
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Except as modified pursuant to the terms hereof or of the other Loan
Documents, the terms of the Original Note and the Original Deed of Trust are
hereby ratified and reaffirmed in every respect and shall remain in full force
and effect. All of the Grantor's obligations under the Original Note, as amended
and replaced by the Note, shall be and are secured by the Original Deed of
Trust, as restated and replaced hereby. Nothing herein contained shall be
construed to impair the lien of the Original Deed of Trust or the priority
thereof, and nothing herein contained shall affect or impair any right, power or
remedy granted to the Beneficiary under the Original Note or the Original Deed
of Trust or be considered as a waiver of any such right, power or remedy except
as expressly provided herein. All of the terms of the Original Deed of Trust are
superceded by and subsumed within the terms hereof; provided, however, that this
Deed of Trust shall not operate to discharge, satisfy, cancel, release or repay,
or be deemed a novation of, the indebtedness evidenced by the Original Note,
which indebtedness is hereby expressly preserved and confirmed in all respects.
8.17 limit Any obligation or liability of Grantor hereunder shall be
enforceable only against, and payable only out of, the property of such party,
and in no event shall any officer, director, shareholder, partner, beneficiary,
agent, advisor or employee of Borrower, be held to any personal liability
whatsoever or be liable for any of the obligations of the parties hereunder, or
the property of any such Persons be subject to the payment of any such
obligations, except in the case of certain Persons as otherwise specifically
provided in the Loan Documents and where such Persons have executed a written
agreement pertaining thereto.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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EXECUTED as of the date first above written.
BEHRINGER HARVARD MOCKINGBIRD COMMONS LP, a
Texas limited partnership
By: Behringer Harvard Mockingbird Commons
GP, LLC, a Texas limited liability
company, its General Partner
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
STATE OF TEXAS ss.
ss.
COUNTY OF _________________ss.
This instrument was acknowledged before me this _____ day of
________________, 2005, by _______________, ___________ of Behringer Harvard
Mockingbird Commons GP, LLC., a Texas limited partnership, acting in its
capacity as the General Partner of Behringer Harvard Mockingbird Commons LP, a
Texas limited partnership, on behalf of said limited partnership.
________________________________________________
Notary Public
My Commission Expires:
________________________________________________
_____________________ Printed name of Notary
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EXHIBIT A
LEGAL DESCRIPTION
-----------------
BEING:
(i) certain condominium units of M CENTRAL MASTER CONDOMINIUM, as described
in that certain MASTER CONDOMINIUM DECLARATION FOR M CENTRAL MASTER CONDOMINIUM,
filed September 16, 2005, recorded in Volume 2005182, Page 00111, Condominium
Records of Dallas County, Texas (the "Master Condominium Declaration"), and
being the following Units: the Hotel Unit, the Retail Unit, the Hotel Room Units
and certain Sub-Units described in (ii) below, and which are more particularly
described in the Map (as defined in the Master Condominium Declaration),
together with all General Common Elements and Limited Common Elements (as
defined in the Master Condominium Declaration) appurtenant thereto and all other
rights, title and interest appurtenant thereto under the Master Condominium
Declaration,
together with
(ii) certain condominium units of M CENTRAL RESIDENCES, A CONDOMINIUM, as
described in that certain RESIDENTIAL CONDOMINIUM DECLARATION FOR M CENTRAL
RESIDENCES, A CONDOMINIUM (the "Residential Condominium Declaration"), filed
September 160, 2005, recorded in Volume 2005182, Page 00204, Condominium Records
of Dallas County, Texas, which is a Sub-Unit Declaration and creates a Sub-Unit
Condominium, and being the following Residences designated in Exhibit C to the
Residential Condominium Declaration: ▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇,▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇ 300, Loft 301, Loft 302, Loft 303, Loft 304, Loft 305 and
the Penthouse in Hotel Tower, and which are more particularly described in the
Residential Map (as defined in the Residential Condominium Declaration),
together with all Residential Common Elements (as defined in the Residential
Condominium Declaration) appurtenant thereto and all other rights, title and
interest appurtenant thereto under the Residential Condominium Declaration.
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