Attached files
| file | filename |
|---|---|
| 8-K - Behringer Harvard Short-Term Liquidating Trust | v170087_8k.htm |
| EX-10.5 - Behringer Harvard Short-Term Liquidating Trust | v170087_ex10-5.htm |
| EX-10.3 - Behringer Harvard Short-Term Liquidating Trust | v170087_ex10-3.htm |
| EX-10.1 - Behringer Harvard Short-Term Liquidating Trust | v170087_ex10-1.htm |
| EX-10.4 - Behringer Harvard Short-Term Liquidating Trust | v170087_ex10-4.htm |
Exhibit
10.2
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RECORDING
REQUESTED BY AND WHEN RECORDED MAIL TO:
|
Michael
P. Haggerty
Jackson
Walker L.L.P.
901 Main
Street, Suite 6000
Dallas,
Texas 75202
[SPACE
ABOVE LINE FOR RECORDER’S USE ONLY]
DEED OF TRUST, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING
STATEMENT
(This
Document Serves as a fixture filing under Section 9.502
of
the Texas Business and Commerce Code)
Grantor’s
Organizational Identification Number: 4374691
THIS DEED
OF TRUST, SECURITY AGREEMENT, FIXTURE FILING AND FINANCING STATEMENT (this
“Mortgage”) is made this ________ day of ______________, 2007, by
Behringer Harvard Mockingbird Commons, LLC, a Delaware limited liability company
(“Grantor”), whose address is 15601 Dallas Parkway, Suite 600, Addison, Texas
75001, in favor of Trustee for the benefit of Bank of America, N.A., a national
banking association (“Administrative Agent”), whose address is 901 Main Street,
20th
Floor, Dallas, Texas 75201, Attention: Real Estate Loan Administration, on
behalf of itself and the other Lenders.
ARTICLE
1
Definitions; Granting
Clauses; Secured Indebtedness
Section
1.1. Principal
Secured. This Mortgage secures the aggregate principal amount
of Eleven Million Two Hundred Fifty Thousand and No/100 Dollars
($11,250,000.00), plus such additional amounts as Lender may from time to time
advance pursuant to the terms and conditions of this Mortgage, with respect to
an obligation secured by a lien or encumbrance prior to the lien of this
Mortgage or for the protection of the lien of this Mortgage, together with
interest thereon.
Section
1.2. Definitions.
(a) In
addition to other terms defined herein, each of the following terms shall have
the meaning assigned to it, such definitions to be applicable equally to the
singular and the plural forms of such terms and to all genders (all capitalized
terms used herein and not otherwise defined shall have the meanings given to
such terms in the Loan Agreement):
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FINANCING
STATEMENT –Mockingbird Second Lien (Behringer Harvard Mockingbird
Commons)
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Page 1
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Exhibit
10.2
“Administrative Agent”
means Bank of America, N.A., a national banking association, as Administrative
Agent, whose address is 901 Main Street, 20th Floor,
Dallas, Texas 75201, Attention: Real Estate Loan Administration, together with
its successors and assigns in such capacity, each acting hereunder on behalf of
the other Lenders.
“Borrower” means
Behringer Harvard Short-Term Opportunity Fund I, LP, a Texas limited
partnership.
“Collateral
Assignment” means that certain Collateral Assignment and Subordination of
Hotel Operating Agreement dated on or about the date hereof, executed by
Grantor, Bank of America, N.A. and Kimpton Hotel & Restaurant Group, LLC, as
the same may be modified, amended, renewed, restated or supplemented from time
to time.
“Debtor Relief Law”
means any federal, state or local law, domestic or foreign, as now or hereafter
in effect relating to bankruptcy, insolvency, liquidation, receivership,
reorganization, arrangement, composition, extension or adjustment of debts, or
any similar law affecting the right of creditors.
“Grantor” means
Behringer Harvard Mockingbird Commons, LLC, a Delaware limited liability
company, whose address is 15601 Dallas Parkway, Suite 600, Addison, Texas 75001,
and its permitted successors and assigns.
“Guarantor” means
Behringer Harvard 250/290 Carpenter LP.
“Loan” means the loan
evidenced by the Loan Agreement and the Note.
“Loan Agreement” means
that certain Credit Agreement dated September 1, 2005, executed by and among
Borrower, Behringer Harvard 250/290 Carpenter LP, and Administrative Agent and
any other lenders now or hereafter made a party thereto.
“Note” means that
certain Promissory Note dated September 1, 2005, issued by Borrower pursuant to
the terms of the Loan Agreement, in the aggregate principal amount of up to
$9,650,000.00, bearing interest as therein provided, containing a provision for,
among other things, the payment of attorneys’ fees, and all other notes given in
substitution thereof or in modification, supplement, increase, renewal or
extension thereof, in whole or in part, as provided in the Loan Agreement,
whether in whole or in part or one or more, as any or all of such notes may from
time to time be renewed, extended, supplemented, increased or modified, each
bearing interest as provided in the Loan Agreement. Additionally, the Loan
Agreement provides that the principal balance of the Loan shall bear interest at
a floating rate of interest subject to change from time to time.
“Trustee” means PRLAP,
Inc. or any successor or substitute appointed and designated as herein provided
from time to time acting hereunder, any one of whom may act alone.
“UCC” means the Texas
Business and Commerce Code, as amended from time to time.
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FINANCING
STATEMENT –Mockingbird Second Lien (Behringer Harvard Mockingbird
Commons)
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Page 2
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Exhibit
10.2
(b) Any
term used or defined in the UCC, as in effect from time to time, and not defined
in this Mortgage has the meaning given to the term in the UCC, as in effect from
time to time, when used in this Mortgage. However, if a term is defined in
Chapter 9 of the UCC differently than in another chapter of the UCC, the term
has the meaning specified in Title 9.
Section
1.3. Granting
Clause. In consideration of the provisions of this Mortgage
and the sum of TEN DOLLARS ($10.00) cash in hand paid and other good and
valuable consideration, the receipt and sufficiency of which are acknowledged by
Grantor, to secure the obligations of Grantor under the Loan Documents and all
other matters and indebtedness constituting the Secured Indebtedness, Grantor
does hereby GRANT, BARGAIN, SELL, CONVEY, TRANSFER, ASSIGN and SET OVER to
Trustee in trust, with the power of sale, for the benefit of Administrative
Agent, the following: all estate, right, title and interest which Grantor now
has or may hereafter acquire in and to the following Premises, Accessories and
other rights, interests and properties, and all rights, estates, powers and
privileges appurtenant thereto (collectively, the “Property”):
(a) Grantor’s
right, title and interest in and to the real property described in Exhibit A
which is attached hereto and incorporated herein by reference (the “Land”)
together with (i) any and all buildings, structures, improvements, alterations
or appurtenances now or hereafter situated or to be situated on the Land
(collectively the “Improvements”); (ii) all rights, estates, powers, privileges
and interests of whatever kind or character appurtenant or incident to the
foregoing; and (iii) all right, title and interest of Grantor, now owned or
hereafter acquired, in and to (1) all common area and other use rights,
tenements, hereditaments, streets, roads, alleys, easements, rights-of-way,
licenses, rights of ingress and egress, vehicle parking rights and public
places, existing or proposed, abutting, adjacent, used in connection with or
pertaining or appurtenant to any of the Land or the Improvements; (2) any strips
or gores between the Land and abutting or adjacent properties; and (3) all
options to purchase the Land or the Improvements or any portion thereof or
interest therein, and any greater estate in the Land or the Improvements; and
(4) all water and water rights or shares of stock evidencing water rights,
timber, crops and mineral interests on or pertaining to the Land (the Land,
Improvements and other rights, titles and interests referred to in this clause
(a) being herein sometimes collectively called the “Premises”);
(b) all
fixtures, equipment, systems, machinery, furniture, furnishings, appliances,
inventory, goods, building and construction materials, supplies, elevator
fixtures, inventory and goods, inventory and articles of personal property and
accessions thereof and renewals, replacements thereof and substitutions therefor
(including, but not limited to, beds, bureaus, chiffonniers, chests, chairs,
desks lamps, mirrors, bookcases, tables, rugs, carpeting, drapes, draperies,
curtains, shades, venetian blinds, screens, paintings, hangings, pictures,
divans, couches, luggage carts, luggage racks, stools, sofas, chinaware, linens,
pillows, blankets, glassware, silverware, foodcarts, cookware, dry cleaning
facilities, dining room wagons, keys or other entry systems, bars, bar fixtures,
liquor and other drink dispensers, icemakers, radios, television sets, intercom
and paging equipment, electric and electronic equipment, dictating equipment,
private telephone systems, medical equipment, potted plants, heating, lighting
and plumbing fixtures, fire prevention and extinguishing apparatus, cooling and
air-conditioning systems, elevators, escalators, fittings, plants, stoves,
ranges, refrigerators, laundry machines, tools, machinery, engines, dynamos,
motors, boilers, incinerators, switchboards, conduits, compressors, vacuum
cleaning systems, floor cleaning, waxing and polishing equipment, call systems,
brackets, electrical signs, bulbs, bells, ash and fuel, conveyors, cabinets,
lockers, shelving, spotlighting equipment, dishwashers, garbage disposals,
washers and dryers), other customary hotel equipment and other articles of
personal property, of every kind and character, tangible and intangible
(including software embedded therein), now owned or hereafter acquired by
Grantor, which are now or hereafter attached to or situated in, on or about the
Land or the Improvements, or used in or necessary to the complete and proper
planning, development, use, occupancy or operation thereof, or acquired (whether
delivered to the Land or stored elsewhere) for use or installation in or on the
Land or the Improvements, and all renewals and replacements of, substitutions
for and additions to the foregoing (the properties referred to in this clause
(b) being herein sometimes collectively called the “Accessories,” all of which
are hereby declared to be permanent accessions to the Land);
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FINANCING
STATEMENT –Mockingbird Second Lien (Behringer Harvard Mockingbird
Commons)
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Page 3
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Exhibit
10.2
(c) all
(i) plans and specifications for the Improvements; (ii) Grantor’s rights, but
not liability for any breach by Grantor, under all commitments (including any
commitments for financing to pay any of the Secured Indebtedness, as defined
below), insurance policies (or additional or supplemental coverage related
thereto, including from an insurance provider meeting the requirements of the
Loan Documents or from or through any state or federal government sponsored
program or entity), Swap Transactions (as hereinafter defined), contracts and
agreements for the design, construction, operation or inspection of the
Improvements and other contracts and general intangibles (including but not
limited to payment intangibles, trademarks, trade names, goodwill, software and
symbols) related to the Premises or the Accessories or the operation thereof;
(iii) deposits and deposit accounts arising from or related to any transactions
related to the Premises or the Accessories (including but not limited to
Grantor’s rights in tenants’ security deposits, deposits with respect to utility
services to the Premises, and any deposits, deposit accounts or reserves
hereunder or under any other Loan Documents (hereinafter defined) for taxes,
insurance or otherwise), rebates or refunds of impact fees or other taxes,
assessments or charges, money, accounts, (including deposit accounts),
instruments, documents, promissory notes and chattel paper (whether tangible or
electronic) arising from or by virtue of any transactions related to the
Premises or the Accessories, and any account, securities account or deposit
account (including, without limitation, reserve accounts and escrow accounts)
from which Grantor may from time to time authorize Administrative Agent to debit
and/or credit payments due with respect to the Loan or any Swap Transaction, all
rights to the payment of money from the counterparty under any Swap Transaction,
and all accounts, deposit accounts and general intangibles, including payment
intangibles, described in any Swap Transaction; (iv) permits, licenses,
franchises, certificates, development rights, commitments and rights for
utilities, and other rights and privileges obtained in connection with the
Premises or the Accessories; (v) leases, rents, royalties, bonuses, issues,
profits, revenues and other benefits of the Premises and the Accessories
(without derogation of Article 3 hereof); (vi) as-extracted collateral produced
from or allocated to the Land including, without limitation, oil, gas and other
hydrocarbons and other minerals and all products processed or obtained
therefrom, and the proceeds thereof; and (vii) engineering, accounting, title,
legal, and other technical or business data concerning the Property, including
software, which are in the possession of Grantor or in which Grantor can
otherwise grant a security interest;
(d) any
all rights and appurtenances to the Units comprising the Land, including any
interest in the Common Elements, if any, established by the Condominium
Declaration, together with any and all rights (but not the obligations or
liabilities) of Grantor arising by virtue of the Condominium Declaration,
whether as an owner of the Units comprising the Land or Declarant (as such term
is defined in the Condominium Act), including the right to vote, as provided in
the Condominium Declaration;
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FINANCING
STATEMENT –Mockingbird Second Lien (Behringer Harvard Mockingbird
Commons)
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Page 4
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Exhibit
10.2
(e) all
rights, titles, estates, interests and privileges which Grantor has or may have
(collectively, the “Contract Rights”) with respect to any contracts or
agreements now or hereafter executed by Grantor (each a “Unit Sales Contract”)
regarding the sale by Assignor of a Residential Unit including, without
limitation, (A) all of Grantor’s rights in and to (i) all earnest money and
escrow deposits made by any purchaser under such Unit Sales Contract
(collectively, “Earnest Money Deposits”); and (ii) any loan commitment, guaranty
or other financial obligation made by a third party with respect to the payment
of any sums owed to Grantor under such Unit Sales Contract, and (B) the right to
amend and supplement the Unit Sales Contract and to waive any material
obligation or duty thereunder, and the right to terminate and extend the Unit
Sales Contract;
(f) all
(i) rights of Grantor as Declarant under the Condominium Declaration (including,
but not limited to, all Development Rights, Special Declarant Rights and other
rights set forth in Section 3.6 of the Condominium Declaration Master) to the
fullest extent the forgoing rights arise from or relate to, either directly or
indirectly, the Property and (ii) voting rights of Grantor (including, but not
limited to all voting rights in the Condominium Association Master) as the owner
of the Property; and
(g) all
(i) accounts and proceeds (cash or non-cash and including payment intangibles)
of or arising from the properties, rights, titles and interests referred to
above in this Section 1.3, including but not limited to proceeds of any sale,
lease or other disposition thereof, proceeds of each policy of insurance (or
additional or supplemental coverage related thereto, including from an insurance
provider meeting the requirements of the Loan Documents or from or through any
state or federal government sponsored program or entity) relating thereto
(including premium refunds), proceeds of the taking thereof or of any rights
appurtenant thereto, including change of grade of streets, curb cuts or other
rights of access, by condemnation, eminent domain or transfer in lieu thereof
for public or quasi-public use under any law, and proceeds arising out of any
damage thereto; (ii) all letter-of-credit rights (whether or not the letter of
credit is evidenced by a writing) Grantor now has or hereafter acquires relating
to the properties, rights, titles and interests referred to in this Section 1.3;
(iii) all commercial tort claims Grantor now has or hereafter acquires relating
to the properties, rights, titles and interests referred to in this Section 1.3;
and (iv) other interests of every kind and character which Grantor now has or
hereafter acquires in, to or for the benefit of the properties, rights, titles
and interests referred to above in this Section 1.3 and all property used or
useful in connection therewith, including but not limited to rights of ingress
and egress and remainders, reversions and reversionary rights or interests; and
if the estate of Grantor in any of the property referred to above in this
Section 1.3 is a leasehold estate, this conveyance shall include, and the lien
and security interest created hereby shall encumber and extend to, all other or
additional title, estates, interests or rights which are now owned or may
hereafter be acquired by Grantor in or to the property demised under the lease
creating the leasehold estate;
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FINANCING
STATEMENT –Mockingbird Second Lien (Behringer Harvard Mockingbird
Commons)
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Page 5
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Exhibit
10.2
TO HAVE
AND TO HOLD the foregoing rights, interests and properties, and all rights,
estates, powers and privileges appurtenant thereto (herein collectively called
the “Property”), unto Trustee, and its successors or substitutes in this trust,
and to its successors and assigns, in trust, forever, subject to the terms,
provisions and conditions herein set forth, to secure the obligations of
Borrower under the Loan Agreement and Loan Documents (as hereinafter defined)
and all other indebtedness and matters defined as “Secured Indebtedness” (as
hereinafter defined).
Section
1.4. Security
Interest. Grantor hereby grants to Administrative Agent a
security interest in all of the Property which constitutes personal property or
fixtures, all proceeds and products thereof, and all supporting obligations
ancillary to or arising in any way in connection therewith (herein sometimes
collectively called the “Collateral”) to secure the obligations of Borrower
under the Note, Loan Agreement and Loan Documents and all other indebtedness and
matters defined as Secured Indebtedness in Section 1.5 of this Mortgage. In
addition to its rights hereunder or otherwise, Administrative Agent shall have
all of the rights of a secured party under the UCC, as in effect from time to
time, or under the Uniform Commercial Code in force, from time to time, in any
other state to the extent the same is applicable law.
Section
1.5.
Secured Indebtedness,
Note, Loan Documents, Other Obligations. This Mortgage is made
to secure and enforce the payment and performance of the following promissory
notes, obligations, indebtedness, duties and liabilities and all renewals,
extensions, supplements, increases, and modifications thereof in whole or in
part from time to time (collectively the “Secured Indebtedness”): (a) the Note;
(b) all indebtedness, liabilities, duties, covenants, promises and other
obligations whether joint or several, direct or indirect, fixed or contingent,
liquidated or unliquidated, and the cost of collection of all such amounts, owed
by Borrower to Lenders now or hereafter incurred or arising pursuant to or
permitted by the provisions of the Loan Agreement, the Note, this Mortgage, or
any other document now or hereafter evidencing, governing, guaranteeing,
securing or otherwise executed by Borrower or Guarantor for the benefit of
Administrative Agent and/or the Lenders in connection with the Loan, including
but not limited to any loan or Loan Agreement, letter of credit or reimbursement
agreement, tri-party financing agreement, Master Agreement relating to any Swap
Transactions or other agreement between Borrower and Administrative Agent, or
among Borrower, Administrative Agent and any other party or parties, pertaining
to the repayment or use of the proceeds of the Loan (the Note, the Loan
Agreement, this Mortgage, any Master Agreement relating to any Swap Transactions
and such other documents, as they or any of them may have been or may be from
time to time renewed, extended, supplemented, increased or modified, being
herein sometimes collectively called the “Loan Documents”). The term
“Swap Transaction” means any agreement, whether or not in writing,
entered into between Borrower and with a financial institution acceptable to the
Required Lenders (such financial institution is referred to herein as “Swap
Bank”) relating to any transaction that is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap or
option, bond, note or bill option, interest rate option, forward foreign
exchange transaction, cap, collar or floor transaction, currency swap,
cross-currency rate swap, swap option currency option or any other, similar
transaction (including any option to enter into any of the foregoing) or any
combination of the foregoing, and, unless the context otherwise clearly
requires, any form of master agreement (the “Master Agreement”) published by the
International Swaps and Derivatives Association, Inc., or any other master
agreement, entered into between a Swap Bank and Borrower, together with any
related schedules, as amended, supplemented, superseded or replaced from time to
time, relating to or governing any or all of the foregoing.
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FINANCING
STATEMENT –Mockingbird Second Lien (Behringer Harvard Mockingbird
Commons)
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Page 6
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Exhibit
10.2
ARTICLE
2
Representations, Warranties
and Covenants
Section
2.1. Grantor
represents, warrants, and covenants as follows (with respect to representations
and warranties, except as otherwise disclosed to Administrative Agent in
writing):
(a) Intentionally
Deleted.
(b) Title and Permitted
Encumbrances. Grantor has, in Grantor’s own right, and Grantor
covenants to maintain, lawful, good and indefeasible title to the Property, is
lawfully seized and possessed of the Property and every part thereof, and has
the right to convey the same, free and clear of all liens, charges, claims,
security interests, and encumbrances except for (i) the matters, if any, set
forth on Schedule B-1 of the mortgagee policy of title insurance issued to
Administrative Agent and insuring the lien of this Mortgage, (ii) the liens and
security interests evidenced by this Mortgage, (iii) statutory liens for real
estate taxes and assessments on the Property which are not yet delinquent, (iv)
other liens and security interests (if any) in favor of Administrative Agent and
(v) any other matters affecting the Property to which the Administrative Agent
may consent in writing, which consent may be given in Administrative Agent’s
sole discretion (the matters described in the foregoing clauses (i), (ii),
(iii), (iv), and (v) being herein called the “Permitted Encumbrances”). Grantor
will warrant generally and forever defend title to the Property, subject as
aforesaid, to Trustee and its successors or substitutes and assigns, against the
claims and demands of all persons claiming or to claim the same or any part
thereof. Grantor will, prior to delinquency, punctually pay, perform, observe
and keep all covenants, obligations and conditions in or pursuant to any
Permitted Encumbrance and will not modify or permit modification of any
Permitted Encumbrance without the prior written consent of Administrative Agent.
Inclusion of any matter as a Permitted Encumbrance does not constitute approval
or waiver by Administrative Agent of any existing or future violation or other
breach thereof by Grantor, by the Property or otherwise. No part of the Property
constitutes all or any part of the principal residence of Grantor if Grantor is
an individual. If any right or interest of Administrative Agent in the Property
or any part thereof shall be endangered or questioned or shall be attacked
directly or indirectly, Administrative Agent and Trustee, or either of them
(whether or not named as parties to legal proceedings with respect thereto), are
hereby authorized and empowered to take such steps as in its discretion may be
proper for the defense of any such legal proceedings or the protection of such
right or interest of Administrative Agent, including but not limited to the
employment of independent counsel, the prosecution or defense of litigation, and
the compromise or discharge of adverse claims. All expenditures so made of every
kind and character shall be a demand obligation (which obligation Grantor hereby
promises to pay owing by Grantor to Administrative Agent or Trustee (as the case
may be), and the party (Administrative Agent or Trustee, as the case may be)
making such expenditures shall be subrogated to all rights of the person
receiving such payment.
(c) Taxes and Other
Impositions. Grantor will pay, or cause to be paid, all taxes,
assessments and other charges or levies imposed upon or against or with respect
to the Property or the ownership, use, occupancy or enjoyment of any portion
thereof, or any utility service thereto, prior to delinquency, including but not
limited to all real estate taxes assessed against the Property or any part
thereof (including assessments under the Condominium Declaration); and shall
deliver to Administrative Agent, within fifteen (15) days after request by
Administrative Agent, such evidence of the payment thereof as Administrative
Agent may require.
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FINANCING
STATEMENT –Mockingbird Second Lien (Behringer Harvard Mockingbird
Commons)
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Page 7
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Exhibit
10.2
(d) Insurance; Use of Insurance
Proceeds. Grantor shall obtain and maintain at Grantor’s sole
expense: (1) mortgagee title insurance issued to Administrative Agent covering
the Premises as required by Administrative Agent without exception for
mechanics’ liens; (2) property insurance with respect to all insurable Property,
against loss or damage by fire, lightning, windstorm, explosion, hail, tornado
and such additional hazards as are presently included in Special Form (also
known as “all-risk”) coverage and against any and all acts of terrorism and such
other insurable hazards as Administrative Agent may require, in an amount not
less than 100% of the full replacement cost, including the cost of debris
removal, without deduction for depreciation and sufficient to prevent Grantor
and Administrative Agent from becoming a coinsurer, such insurance to be in
“builder’s risk” completed value(non-reporting) form during and with respect to
any construction on the Premises; (3) if and to the extent any portion of the
Improvements is, under the Flood Disaster Protection Act of 1973 (“FDPA”), as it
may be amended from time to time, in a Special Flood Hazard Area, within a Flood
Zone designated A or V in a participating community, a flood insurance policy in
an amount required by Administrative Agent, but in no event less than the amount
sufficient to meet the requirements of applicable law and the FDPA, as such
requirements may from time to time he in effect; (4) general liability
insurance, on an “occurrence” basis against claims for “personal injury”
liability, including bodily injury, death or property damage liability,
insurance, including “Dram Shop” or other liquor liability coverage if alcoholic
beverages are sold from or may be consumed at the Property, for the benefit of
Grantor as named insured and Administrative Agent as additional insured; (5)
statutory workers’ compensation insurance with respect to any work on or about
the Premises (including employer’s liability insurance, if required by
Administrative Agent), covering all employees of Grantor and any contractor; to
the extent such coverage is covered by the contractor or subcontractor on behalf
of Grantor, Administrative Agent will accept such coverage on behalf of Grantor
upon receipt of evidence of such coverage; (6) if there is a general contractor,
commercial general liability insurance, including products and completed
operations coverage, and in other respects similar to that described in clause
(4) above, for the benefit of the general contractor as named insured and
Grantor and Administrative Agent as additional insureds, in addition to
statutory workers’ compensation insurance with respect to any work on or about
the Premises (including employer’s liability insurance, if required by
Administrative Agent), covering all employees of the general contractor and any
contractor; (7) blanket fidelity bond and errors and omissions (to the extent
not covered by the blanket fidelity bond) insurance coverage insuring against
losses resulting from dishonest or fraudulent acts committed by (A) Grantor’s
personnel; (B) any employees of outside firms that provide appraisal, legal,
data processing or other services for Grantor or (C) temporary contract
employees or student interns and (8) such other insurance on the Property and
endorsements as may from time to time be required by Administrative Agent
(including but not limited to soft cost coverage, automobile liability
insurance, business interruption insurance or delayed rental insurance, boiler
and machinery insurance, earthquake insurance, wind insurance, sinkhole
coverage, and/or permit to occupy endorsement)) and against other insurable
hazards or casualties which at the time are commonly insured against in the case
of premises similarly situated, due regard being given to the height, type,
construction, location, use and occupancy of buildings and improvements, and in
the event such coverages are economically feasible and obtainable. Any insurance
as to the Condominium or the Units comprising the Land, may be written in the
name of the Condominium Association or an insurance trustee, as trustee for all
of the owners in the Condominium, if the Condominium Declaration requires or
permits the Condominium Association or an insurance trustee to be designated as
the insured under such policies. So long as the Condominium Association
maintains any insurance policies required under this Mortgage as to the
Condominium or the Units comprising the Land, the obligations of Grantor under
this Section shall be deemed satisfied as to the Condominium and the Units
comprising the Land; provided that Grantor shall remain obligated to obtain and
maintain insurance with respect to all personal property and equipment owned by
Grantor and located within the Units comprising the Land and all other Property
not covered by the insurance maintained by the Condominium Association. Grantor
shall provide Administrative Agent with a certificate evidencing all insurance
maintained by the Condominium Association as to insurance Grantor would
otherwise be obligated to maintain and to deliver a copy of such required
policies of insurance to Administrative Agent upon request. At least fifteen
(15) days prior to the expiration of each such policy, Grantor shall furnish
Administrative Agent with evidence satisfactory to Administrative Agent of the
payment of premiums and the reissuance of policies continuing insurance in force
as required by this Mortgage. Except as otherwise required by the Condominium
Declaration all such policies of insurance shall contain an endorsement or
agreement by the insurer that any loss is payable in accordance with the terms
of such policies notwithstanding any act or negligence of Grantor which might
otherwise result in forfeiture of said insurance, and the further agreement of
the insurer waiving all rights of setoff, counterclaim or deductions against
Grantor . Unless prohibited by the Condominium Act or the Condominium
Declaration, Grantor shall cause, at the request of Administrative Agent,
Administrative Agent to be named as an additional insured on any liability
insurance policy maintained by the Condominium Association with respect to the
Condominium and Units comprising the Land. Except as may be required by the
Condominium Declaration and the Condominium Act, all insurance policies shall be
issued and maintained by insurers, in amounts, with deductibles, limits and
retentions, and in forms satisfactory to Administrative Agent, and shall require
not less than ten (10) days’ prior written notice to Administrative Agent of any
cancellation for nonpayment of premiums, and not less than thirty (30) days’
prior written notice to Administrative Agent of any other cancellation or any
change of coverage. All insurance companies must be licensed to do business in
the state in which the Property is located and must have an A. M. Best Company
financial and performance ratings of or better. All insurance policies
maintained, or caused to be maintained, by Grantor with respect to the Property,
except for general liability insurance, shall provide that each such policy
shall be primary without right of contribution from any other insurance that may
be carried by Grantor or Administrative Agent and that all of the provisions
thereof, except the limits of liability, shall operate in the same manner as if
there were a separate policy covering each insured. At least fifteen (15) days
prior to the expiration of each such policies, Grantor shall furnish
Administrative Agent with evidence satisfactory to Administrative Agent of the
payment of premiums and the reissuance of policies continuing insurance in force
as required by this Mortgage. All such policies of insurance shall contain an
endorsement or agreement by the insurer that any loss is payable in accordance
with the terms of such policies notwithstanding any act or negligence of Grantor
which might otherwise result in forfeiture of said insurance, and the further
agreement of the insurer waiving all rights of setoff, counterclaim or
deductions against Grantor. If any insurer which has issued a policy of title,
hazard, liability or other insurance required pursuant to this Mortgage or any
other Loan Document becomes insolvent or the subject of any petition, case,
proceeding or other action pursuant to any Debtor Relief Law, or if in
Administrative Agent’s reasonable opinion the financial responsibility of such
insurer is or becomes inadequate, Grantor shall, in each instance promptly upon
its discovery thereof or upon the request of Administrative Agent therefor, and
at Grantor’s expense, promptly obtain and deliver to Administrative Agent a like
policy (or, if and to the extent permitted by Administrative Agent, acceptable
evidence of insurance) issued by another insurer, which insurer and policy meet
the requirements of this Mortgage or such other Loan Document, as the case may
be. Without limiting the discretion of Administrative Agent with respect to
required endorsements to insurance policies, and unless prohibited by the
Condominium Act, all such policies for loss of or damage to the Property shall
contain a standard mortgagee clause (without contribution) naming Administrative
Agent as mortgagee with loss proceeds payable to Administrative Agent
notwithstanding (i) any act, failure to act or negligence of or violation of any
warranty, declaration or condition contained in any such policy by any named or
additional insured; (ii) the occupation or use of the Property for purposes more
hazardous than permitted by the terms of any such policy; (iii) any foreclosure
or other action by Administrative Agent under the Loan Documents; or (iv) any
change in title to or ownership of the Property or any portion thereof, such
proceeds to be held for application as provided in the Loan Documents. The
originals of each initial insurance policy (or to the extent permitted by
Administrative Agent, a copy of the original policy and such evidence of
insurance acceptable to Administrative Agent) and unless prohibited by the
Condominium Act shall be delivered to Administrative Agent at the time of
execution of this Mortgage, with all premiums fully paid current, and each
renewal or substitute policy (or evidence of insurance) shall be delivered to
Administrative Agent, with all premiums fully paid current, at least ten (10)
days before the termination of the policy it renews or replaces. Grantor shall
pay all premiums on policies required hereunder as they become due and payable
and promptly deliver to Administrative Agent evidence satisfactory to
Administrative Agent of the timely payment thereof. If any loss occurs at any
time when Grantor has failed to perform Grantor’s covenants and agreements in
this paragraph with respect to any insurance payable because of loss sustained
to any part of the Property, whether or not such insurance is required by
Administrative Agent, Administrative Agent shall nevertheless be entitled to the
benefit of all insurance covering the loss and held by or for Grantor, to the
same extent as if it had been made payable to Administrative Agent. Upon any
foreclosure hereof or transfer of title to the Property in extinguishment of the
whole or any part of the Secured Indebtedness, all of Grantor’s right, title and
interest in and to the insurance policies referred to in this Section (including
unearned premiums) and all proceeds payable thereunder shall thereupon vest in
the purchaser at foreclosure or other such transferee, to the extent permissible
under such policies. Administrative Agent shall have the right (but not the
obligation) to make proof of loss for, settle and adjust any claim under, and
receive the proceeds of, all insurance for loss of or damage to the Property
regardless of whether or not such insurance policies are required by
Administrative Agent, and the expenses incurred by Administrative Agent in the
adjustment and collection of insurance proceeds shall be a part of the Secured
Indebtedness and shall be due and payable to Lenders on demand, provided, that,
except during an Event of Default, any settlement or adjustment of any claim may
be negotiated by the Grantor if the amount involved is equal to or less than
$100,000, if the amount involved is greater than $100,000 then the same shall
remain subject to the final approval of Administrative Agent and the
requirements of this Mortgage. Administrative Agent shall not be, under any
circumstances, liable or responsible for failure to collect or exercise
diligence in the collection of any of such proceeds or for the obtaining,
maintaining or adequacy of any insurance or for failure to see to the proper
application of any amount paid over to Grantor. Except as may be required by the
Collateral Assignment, any such proceeds received by Administrative Agent shall,
after deduction therefrom of all reasonable expenses actually incurred by
Administrative Agent, including attorneys’ fees, at Administrative Agent’s
option be (1) released to Grantor, or (2) applied (upon compliance with such
terms and conditions as may be required by Administrative Agent) to repair or
restoration, either partly or entirely, of the Property so damaged, or (3)
applied to the payment of the Secured Indebtedness in such order and manner as
Administrative Agent, in its sole discretion, may elect, whether or not due. In
any event, the unpaid portion of the Secured Indebtedness shall remain in full
force and effect and the payment thereof shall not be excused. Grantor shall at
all times comply with the requirements of the insurance policies required
hereunder and of the issuers of such policies and of any board of fire
underwriters or similar body as applicable to or affecting the
Property.
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FINANCING
STATEMENT –Mockingbird Second Lien (Behringer Harvard Mockingbird
Commons)
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Page 8
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Exhibit
10.2
Notwithstanding
anything contained in this Section 2.1(d), Grantor shall have no obligation to
Administrative Agent that violates the Condominium Act.
(e) Reserve for Insurance, Taxes
and Assessments. Upon request of Administrative Agent, to
secure the payment and performance of the Secured Indebtedness, but not in lieu
of such payment and performance, Grantor will deposit with Administrative Agent
a sum equal to real estate taxes, assessments and charges (which charges for the
purposes of this paragraph shall include without limitation any recurring charge
which could result in a lien against the Property) against the Property for the
current year and the premiums for such policies of insurance for the current
year (other than for insurance maintained solely by the Condominium
Association), all as estimated by Administrative Agent and prorated to the end
of the calendar month following the month during which Administrative Agent’s
request is made, and thereafter will deposit with Administrative Agent, on each
date when an installment of principal and/or interest is due on the Loan,
sufficient funds (as estimated from time to time by Administrative Agent) to
permit Administrative Agent to pay at least fifteen (15) days prior to the due
date (or, in the case of real estate taxes and assessments, the delinquency
date) thereof, the next maturing real estate taxes, assessments and charges and
premiums for such policies of insurance. Administrative Agent shall have the
right to rely upon tax information furnished by applicable taxing authorities in
the payment of such taxes or assessments and shall have no obligation to make
any protest of any such taxes or assessments. To the extent permitted by law,
any excess over the amounts required for such purposes shall be held by
Administrative Agent for future use, applied to any Secured Indebtedness or
refunded to Grantor, at Administrative Agent’s option, and any deficiency in
such funds so deposited shall be made up by Grantor upon demand of
Administrative Agent. All such funds so deposited shall bear no interest, may be
co-mingled with the general funds of Administrative Agent and shall be applied
by Administrative Agent toward the payment of such taxes, assessments, charges
and premiums when statements therefor are presented to Administrative Agent by
Grantor (which statements shall be presented by Grantor to Administrative Agent
a reasonable time before the applicable amount is due); provided, however, that,
if a Default shall have occurred hereunder, such funds may at Administrative
Agent’s option be applied to the payment of the Secured Indebtedness in the
order determined by Administrative Agent in its sole discretion, and that
Administrative Agent may (but shall have no obligation) at any time, in its
discretion, apply all or any part of such funds toward the payment of any such
taxes, assessments, charges or premiums which are past due, together with any
penalties or late charges with respect thereto. The conveyance or transfer of
Grantor’s interest in the Property for any reason (including without limitation
the foreclosure of a subordinate lien or security interest or a transfer by
operation of law) shall constitute an assignment or transfer of Grantor’s
interest in and rights to such funds held by Administrative Agent under this
paragraph but subject to the rights of Administrative Agent
hereunder.
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FINANCING
STATEMENT –Mockingbird Second Lien (Behringer Harvard Mockingbird
Commons)
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Page 9
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Exhibit
10.2
(f) Condemnation. Grantor
shall notify Administrative Agent promptly of any threatened or pending
proceeding for condemnation affecting the Property or arising out of damage to
the Property, and Grantor shall, at Grantor’s expense, diligently prosecute any
such proceedings. Administrative Agent shall have the right (but not the
obligation) to participate in any such proceeding and to be represented by
counsel of its own choice. Administrative Agent shall be entitled to receive all
sums which may be awarded or become payable to Grantor for the condemnation of
the Property, or any part thereof, for public or quasi-public use, or by virtue
of private sale in lieu thereof, and any sums which may be awarded or become
payable to Grantor for injury or damage to the Property. Grantor shall, promptly
upon request of Administrative Agent, execute such additional assignments and
other documents as may be necessary from time to time to permit such
participation and to enable Administrative Agent to collect and receipt for any
such sums. All such sums are hereby assigned to Administrative Agent, and except
as may be required by the Collateral Assignment, shall, after deduction
therefrom of all reasonable expenses actually incurred by Administrative Agent,
including attorneys’ fees, at Administrative Agent’s option be (1) released to
Grantor, or (2) applied (upon compliance with such terms and conditions as may
be required by Administrative Agent) to repair or restoration of the Property,
or (3) applied to the payment of the Secured Indebtedness in such order and
manner as Administrative Agent, in its sole discretion, may elect, whether or
not due. In any event the unpaid portion of the Secured Indebtedness shall
remain in full force and effect and the payment thereof shall not be excused.
Administrative Agent shall not be, under any circumstances, liable or
responsible for failure to collect or to exercise diligence in the collection of
any such sum or for failure to see to the proper application of any amount paid
over to Grantor. Administrative Agent is hereby authorized, in the name of
Grantor, to execute and deliver valid acquittances for, and to appeal from, any
such award, judgment or decree. All costs and expenses (including but not
limited to attorneys’ fees) incurred by Administrative Agent in connection with
any condemnation shall be a demand obligation owing by Grantor (which Grantor
hereby promises to pay) to Administrative Agent pursuant to this
Mortgage.
(g) Compliance with Legal
Requirements. The Grantor, the Property and the use, operation
and maintenance thereof and all activities thereon do and shall at all times
comply with the terms, conditions, covenants, representations and warranties of
the Loan Agreement and all applicable Legal Requirements (hereinafter defined).
The Property is not, and shall not be, dependent on any other property or
premises or any interest therein other than the Property to fulfill any
requirement of any Legal Requirement. Grantor shall not, by act or omission,
permit any building or other improvement not subject to the lien of this
Mortgage to rely on the Property or any interest therein to fulfill any
requirement of any Legal Requirement. No improvement upon or use of any part of
the Property constitutes a nonconforming use under any zoning law or similar law
or ordinance. Grantor has obtained and shall preserve in force all requisite
zoning, utility, building, health, environmental and operating permits from the
governmental authorities having jurisdiction over the Property. If Grantor
receives a notice or claim from any person that the Property, or any use,
activity, operation or maintenance thereof or thereon, is not in compliance, in
any material respect, with any Legal Requirement, Grantor will promptly furnish
a copy of such notice or claim to Administrative Agent. Grantor has received no
notice and has no knowledge of any such noncompliance. As used in this Mortgage:
(i) the term “Legal Requirement” means any Law (hereinafter defined), agreement,
covenant, restriction, easement or condition (including, without limitation of
the foregoing, any condition or requirement imposed by any insurance or surety
company), as any of the same now exists or may he changed or amended or come
into effect in the future; and (ii) the term ‘Taw” means any federal, state or
local law, statute, ordinance, code, rule, regulation, license, permit,
authorization, decision, order, injunction or decree, domestic or
foreign.
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FINANCING
STATEMENT –Mockingbird Second Lien (Behringer Harvard Mockingbird
Commons)
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Page 10
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Exhibit
10.2
(h) Maintenance, Repair and
Restoration. Grantor will keep the Property in first class
order, repair, operating condition and appearance, causing all necessary
repairs, renewals, replacements, additions and improvements to be promptly made,
and will not allow any of the Property to be misused, abused or wasted or to
deteriorate. Notwithstanding the foregoing, Grantor will not, without the prior
written consent of Administrative Agent, (i) remove from the Property any
fixtures or personal property covered by this Mortgage except such as is
replaced by Grantor by an article of comparable quality and utility, owned by
Grantor, free and clear of any lien or security interest (except that created by
this Mortgage), or (ii) make any structural alteration to the Property or any
other alteration thereto which impairs, except to an immaterial extent, the
value thereof. If any act or occurrence of any kind or nature (including any
condemnation or any casualty for which insurance was not obtained or obtainable)
shall result in damage to or loss or destruction of the Property, Grantor shall
give prompt notice thereof to Administrative Agent and Grantor shall promptly,
at Grantor’s sole cost and expense and regardless of whether insurance or
condemnation proceeds (if any) shall be available or sufficient for the purpose,
secure the Property as necessary and commence and continue diligently to
completion to restore, repair, replace and rebuild the Property as nearly as
possible to its value, condition and character immediately prior to the damage,
loss or destruction. Notwithstanding the foregoing, Grantor shall not be
required to perform the obligations contained under this subparagraph (k) with
respect to (A) any Units comprising the Land released from the lien of this
Mortgage, or (B) the Common Elements of the Condominium so long as the
Condominium Association is performing such obligations.
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FINANCING
STATEMENT –Mockingbird Second Lien (Behringer Harvard Mockingbird
Commons)
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Page 11
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Exhibit
10.2
(i) No Other
Liens. Grantor will not, without the prior written consent of
Administrative Agent, create, place or permit to be created or placed, or
through any act or failure to act, acquiesce in the placing of, or allow to
remain, any deed of trust, mortgage, voluntary or involuntary lien, whether
statutory, constitutional or contractual, security interest, encumbrance or
charge, or conditional sale or other title retention document, against or
covering the Property, or any part thereof, other than the Permitted
Encumbrances, regardless of whether the same are expressly or otherwise
subordinate to the lien or security interest created in this Mortgage, and
should any of the foregoing become attached hereafter in any manner to any part
of the Property without the prior written consent of Administrative Agent,
Grantor will cause the same to be promptly discharged and released.
Notwithstanding the foregoing, Administrative Agent shall not unreasonably delay
or withhold its consent to financing or leasing of (A) certain types of office
equipment, such as copiers or fax machines, provided, that, such office
equipment (i) is readily replaceable and the removal and replacement of such
equipment will not significantly impact the operation of the hotel, and (ii)
will not be used to store or hold any proprietary information or information
necessary for the operation of the Improvements as a hotel that is not readily
available otherwise and (B) televisions, provided, that, the underlying lease or
financing documentation will provide Administrative Agent with notice of any
defaults of Grantor under such documentation and the opportunity, but not the
obligation, to cure such defaults within a period of at least thirty (30) days.
Grantor will own all parts of the Property and will not acquire any fixtures,
equipment or other property (including software embedded therein) forming a part
of the Property pursuant to a lease, license, security agreement or similar
agreement, whereby any party has or may obtain the right to repossess or remove
same, without the prior written consent of Administrative Agent. If
Administrative Agent consents to the voluntary grant by Grantor of any deed of
trust or mortgage, lien, security interest, or other encumbrance (hereinafter
called “Subordinate Lien”) covering any of the Property or if the foregoing
prohibition is determined by a court of competent jurisdiction to be
unenforceable as to a Subordinate Lien, any such Subordinate Lien shall contain
express covenants to the effect that: (1) the Subordinate Lien is
unconditionally subordinate to this Mortgage and all Leases (as defined in the
Assignment of Rents); (2) if any action (whether judicial or pursuant to a power
of sale) shall be instituted to foreclose or otherwise enforce the Subordinate
Lien, no tenant of any of the Leases shall be named as a party defendant, and no
action shall be taken that would terminate any occupancy or tenancy without the
prior written consent of Administrative Agent; (3) Rents (as defined in the
Assignment of Rents), if collected by or for the Administrative Agent of the
Subordinate Lien, shall be applied first to the payment of the Secured
Indebtedness then due and expenses incurred in the ownership, operation and
maintenance of the Property in such order as Administrative Agent may determine,
prior to being applied to any indebtedness secured by the Subordinate Lien; (4)
written notice of default under the Subordinate Lien and written notice of the
commencement of any action (whether judicial or pursuant to a power of sale) to
foreclose or otherwise enforce the Subordinate Lien or to seek the appointment
of a receiver for all or any part of the Property shall be given to
Administrative Agent with or promptly after the occurrence of any such default
or commencement; and (5) neither the Administrative Agent of the Subordinate
Lien, nor any purchaser at foreclosure thereunder, nor anyone claiming by,
through or under any of them shall succeed to any of Grantor’s rights hereunder
without the prior written consent of Administrative Agent.
(j) Operation of
Property. Grantor will operate the Property in a good and
workmanlike manner and in accordance with all Legal Requirements and will pay
all fees or charges of any kind in connection therewith. Grantor will keep the
Property occupied so as not to impair the insurance carried thereon. Grantor
will not use or occupy or conduct any activity on, or allow the use or occupancy
of or the conduct of any activity on, the Property in any manner which violates
any Legal Requirement or which constitutes a public or private nuisance or which
makes void, voidable or cancelable, or increases the premium of, any insurance
then in force with respect thereto. Except with Administrative Agent’s prior
written consent, Grantor will not initiate or permit any zoning reclassification
of the Property or seek any variance under existing zoning ordinances applicable
to the Property or use or permit the use of the Property in such a manner which
would result in such use becoming a nonconforming use under applicable zoning
ordinances or other Legal Requirement. Grantor will not impose any easement,
restrictive covenant or encumbrance upon the Property, execute or file any
subdivision plat affecting the Property or consent to the annexation of the
Property to any municipality, without the prior written consent of
Administrative Agent. Grantor will not knowingly do or suffer to be done any act
whereby the value of any part of the Property may be lessened. Grantor will
preserve, protect, renew, extend and retain all material rights and privileges
granted for or applicable to the Property. Without the prior written consent of
Administrative Agent, there shall be no drilling or exploration for or
extraction, removal or production of any mineral, hydrocarbon, gas, natural
element, compound or substance (including sand and gravel) from the surface or
subsurface of the Land regardless of the depth thereof or the method of mining
or extraction thereof.
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FINANCING
STATEMENT –Mockingbird Second Lien (Behringer Harvard Mockingbird
Commons)
|
Page 12
|
Exhibit
10.2
(k) Financial
Matters. Grantor is solvent after giving effect to all
borrowings contemplated by the Loan Documents and no proceeding under any Debtor
Relief Law is pending (or, to Grantor’s knowledge, threatened) by or against
Grantor, or any affiliate of Grantor, as a debtor. All reports, statements,
plans, budgets, applications, agreements and other data and information
heretofore furnished or hereafter to be furnished by or on behalf of Grantor to
Administrative Agent in connection with the loan or loans evidenced by the Loan
Documents (including, without limitation, all financial statements and financial
information) are and will be true, correct and complete in all material respects
as of their respective dates and do not and will not omit to state any fact or
circumstance necessary to make the statements contained therein not misleading.
No material adverse change has occurred since the dates of such reports,
statements and other data in the financial condition of Grantor or, to Grantor’s
knowledge, of any tenant under any lease described therein. For the purposes of
this paragraph, “Grantor” shall also include any affiliate of Grantor,
Guarantor, any affiliate of Guarantor and each of their respective successors
and assigns liable directly or indirectly for the Secured
Indebtedness.
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FINANCING
STATEMENT –Mockingbird Second Lien (Behringer Harvard Mockingbird
Commons)
|
Page 13
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Exhibit
10.2
(l) Status of Grantor; Suits and
Claims; Loan Documents. If Grantor is a corporation,
partnership, limited liability company, or other legal entity, Grantor is and
will continue to be (i) duly organized, validly existing and in good standing
under the laws of its state of organization, (ii) authorized to do business in,
and in good standing in, each state in which the Land is located, and (iii)
possessed of all requisite power and authority to carry on its business and to
own and operate the Property. Each Loan Document executed by Grantor has been
duly authorized, executed and delivered by Grantor, and the obligations
thereunder and the performance thereof by Grantor in accordance with their terms
are and will continue to be within Grantor’s power and authority (without the
necessity of joinder or consent of any other person, except for such as have
been obtained), are not and will not be in contravention of any Legal
Requirement or any other document or agreement to which Grantor or the Property
is subject, and do not and will not result in the creation of any encumbrance
against any assets or properties of Grantor, Guarantor, any affiliate of
Grantor, or any affiliate of Guarantor liable, directly or indirectly, for any
of the Secured Indebtedness, except as expressly contemplated by the Loan
Documents. There is no suit, action, claim, investigation, inquiry, proceeding
or demand pending (or, to Grantor’s knowledge, threatened) against Grantor,
Guarantor, any affiliate of Grantor, or any affiliate of Guarantor liable
directly or indirectly for the Secured Indebtedness or which to, Grantor’s best
knowledge, affects the Property (including, without limitation, any which
challenges or otherwise pertains to Grantor’s title to the Property) or the
validity, enforceability or priority of any of the Loan Documents. There is no
judicial or administrative action, suit or proceeding pending (or, to Grantor’s
knowledge, threatened) against Grantor, Guarantor, any affiliate of Grantor, or
any affiliate of Guarantor liable directly or indirectly for the Secured
Indebtedness, except as has been disclosed in writing to Administrative Agent in
connection with the loan evidenced by the Note. The Loan Documents, to which
Grantor is a party, constitute legal, valid and binding obligations of Grantor
enforceable in accordance with their terms, except as the enforceability thereof
may be limited by Debtor Relief Laws and except as the availability of certain
remedies may be limited by general principles of equity. Grantor is not a
“foreign person” within the meaning of the Internal Revenue Code of 1986, as
amended, Sections 1445 and 7701 (i.e. Grantor is not a non-resident alien,
foreign corporation, foreign partnership, foreign trust or foreign estate as
those terms are defined therein and in any regulations promulgated thereunder).
The Loan is solely for business and/or investment purposes, and is not intended
for personal, family, household or agricultural purposes. Grantor further
warrants that the proceeds of the Loan shall be used for commercial purposes and
stipulates that the Loan shall be construed for all purposes as a commercial
loan. Grantor’s exact legal name is correctly set forth at the end of this
Mortgage. If Grantor is not an individual, Grantor is an organization of the
type and (if not an unregistered entity) is incorporated in or organized under
the laws of the state specified in the introductory paragraph of this Mortgage.
If Grantor is an unregistered entity (including, without limitation, a general
partnership) it is organized under the laws of the state specified in the
introductory paragraph of this Mortgage. Grantor will not cause or permit any
change to be made in its name, identity, (including its trade name or names),
organizational structure, unless Grantor shall have notified Administrative
Agent in writing of such change at least 30 days prior to the effective date of
such change, and shall have first taken all action required by Administrative
Agent for the purpose of further perfecting or protecting the lien and security
interest of Administrative Agent in the Property. In addition, Grantor shall not
change its organizational structure without first obtaining the prior written
consent of Administrative Agent. Grantor’s principal place of business and chief
executive office, and the place where Grantor keeps its hooks and records (in
addition to at the Property), including recorded data of any kind or nature,
regardless of the medium of recording including, without limitation, software,
writings, plans, specifications and schematics concerning the Property, has for
the preceding four months (or, if less, the entire period of the existence of
Grantor) been and will continue to be (unless Grantor notifies Administrative
Agent of any change in writing at least 30 days prior to the date of such
change) the address of Grantor set forth Article I of this Mortgage. If Grantor
is an individual, Grantor’s principal residence has for the preceding four
months been and will continue to be (unless Grantor notifies Administrative
Agent of any change in writing at least 30 days prior to the date of such
change) the address of the principal residence of Grantor set forth in Article I
of this Mortgage. Grantor’s organizational identification number, assigned by
the state of incorporation or organization is 4374691. Grantor shall promptly
notify Administrative Agent (i) of any change of its organizational
identification number, or (ii) if Grantor does not now have an organization
identification number and later obtains one, of such organizational
identification number.
(m) Further
Assurances. Grantor will, within a reasonable period of time
following request of Administrative Agent, (i) correct any defect, error or
omission which may be discovered in the contents, execution or acknowledgment of
this Mortgage or any other Loan Document; (ii) execute, acknowledge, deliver,
procure and record and/or tile such further documents (including, without
limitation, further mortgages, deeds of trust, security agreements, and
assignments of rents or /eases) and do such further acts as may be necessary,
desirable or proper to carry out more effectively the purposes of this Mortgage,
to inure fully identify and subject to the liens and security interests hereof
any property intended to be covered hereby (including specifically, but without
limitation, any renewals, additions, substitutions, replacements, or
appurtenances to the Property) or as deemed advisable by Administrative Agent in
its commercially reasonable judgment to protect the lien or the security
interest hereunder against the rights or interests of third persons; and (iii)
use best efforts to provide such certificates, documents, reports, information,
affidavits and other instruments and do such further acts as may be necessary,
desirable or proper in the reasonable determination of Administrative Agent to
enable Administrative Agent to comply with the requirements or requests of any
agency having jurisdiction over Administrative Agent or any examiners of such
agencies with respect to the indebtedness secured hereby, Grantor or the
Property. Grantor shall pay all costs connected with any of the foregoing, which
shall be a demand obligation owing by Grantor (which Grantor hereby promises to
pay) to Administrative Agent pursuant to this Mortgage.
|
FINANCING
STATEMENT –Mockingbird Second Lien (Behringer Harvard Mockingbird
Commons)
|
Page 14
|
Exhibit
10.2
(n) Fees and
Expenses. Without limitation of any other provision of this
Mortgage or of any other Loan Document and to the extent not prohibited by
applicable law, Grantor will pay, and will reimburse to Administrative Agent
and/or Trustee on demand to the extent paid by Administrative Agent and/or
Trustee: (i) all reasonable appraisal fees, filing, registration and recording
fees, recordation, transfer and other taxes, brokerage fees and commissions,
abstract fees, title search or examination fees, title policy and endorsement
premiums and fees, uniform commercial code search fees, judgment and tax lien
search fees, escrow fees, attorneys’ fees, architect fees, engineer fees,
construction consultant fees, environmental inspection fees, survey fees, and
all other costs and expenses of every character incurred by Grantor or
Administrative Agent and/or Trustee in connection with the preparation of the
Loan Documents, the evaluation, closing and funding of the Loan, and any and all
amendments and supplements to this Mortgage, the Loan Agreement, or any other
Loan Documents or any approval, consent, waiver, release or other matter
requested or required hereunder or thereunder, or otherwise attributable or
chargeable to Grantor as owner of the Property; and (ii) all costs and expenses,
including attorneys’ fees and expenses, incurred or expended in connection with
the exercise of any right or remedy, or the defense of any right or remedy or
the enforcement of any obligation of Grantor, hereunder or under any other Loan
Document.
(o) Indemnification.
(i) Grantor
will indemnify and hold harmless Administrative Agent and Trustee from and
against, and reimburse it on demand for, any and all Indemnified Matters
(hereinafter defined)_ For purposes of this subparagraph (i), the term
“Administrative Agent” and “Trustee” shall include Administrative Agent, and
Trustee, and any persons owned or controlled by, owning or controlling, or under
common control or affiliated with Administrative Agent or Trustee respectively
and the directors, officers, partners, employees, attorneys, agents and
representatives of each of them. WITHOUT LIMITATION, THE FOREGOING INDEMNITIES
SHALL APPLY TO EACH INDEMNIFIED PERSON WITH RESPECT TO MATTERS WHICH IN WHOLE OR
IN PART ARE CAUSED BY OR ARISE OUT OF, OR ARE CLAIMED TO BE CAUSED BY OR ARISE
OUT OF, THE NEGLIGENCE (WHETHER SOLE, COMPARATIVE OR CONTRIBUTORY) OR STRICT
LIABILITY OF SUCH (AND/OR ANY OTHER) INDEMNIFIED PERSON. HOWEVER, SUCH
INDEMNITIES SHALL NOT APPLY TO A PARTICULAR INDEMNIFIED PERSON TO THE EXTENT
THAT THE SUBJECT OF THE INDEMNIFICATION IS CAUSED BY OR ARISES OUT OF THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF THAT INDEMNIFIED PERSON. Any amount to be
paid under this paragraph (o) by Grantor to Administrative Agent and/or Trustee
shall be a demand obligation owing by Grantor (which Grantor hereby promises to
pay) to Administrative Agent and/or Trustee pursuant to this Mortgage. Upon
demand by Administrative Agent, Grantor shall diligently defend any Indemnified
Matter which affects the Property or is made or commenced against Administrative
Agent, whether alone or together with Grantor or any other person, all at
Grantor’s own cost and expense and by counsel to be approved by Administrative
Agent in the exercise of its reasonable judgment. In the alternative, at any
time Administrative Agent may elect to conduct its own defense through counsel
selected by Administrative Agent and at the cost and expense of Grantor. Nothing
in this paragraph, elsewhere in this Mortgage or in any other Loan Document
shall limit or impair any rights or remedies of Administrative Agent and/or
Trustee (including without limitation any rights of contribution or
indemnification) against Grantor or any other person under any other provision
of this Mortgage, any other Loan Document, any other agreement or any applicable
Legal Requirement.
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FINANCING
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Commons)
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Page 15
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Exhibit
10.2
(ii) For
purposes of this subparagraph (ii), the term “Administrative Agent” shall
include Administrative Agent and each Lender, the directors, officers, partners,
employees and agents of Administrative Agent and such Lenders or Trustee,
respectively, and any persons owned or controlled by, owning or controlling, or
under common control or affiliated with Administrative Agent and the Lenders or
Trustee, respectively. As used herein, the term “Indemnified Matters” means any
and all claims, demands, liabilities (including strict liability), losses,
damages (including consequential damages), causes of action, judgments,
penalties, fines, costs and expenses (including without limitation, reasonable
fees and expenses of attorneys and other professional consultants and experts,
and of the investigation and defense of any claim, whether or not such claim is
ultimately withdrawn or defeated, and the settlement of any claim or judgment
including all value paid or given in settlement) of every kind, known or
unknown, foreseeable or unforeseeable, which may be imposed upon, asserted
against or incurred or paid by Administrative Agent and/or Trustee at any time
and from time to time, whenever imposed, asserted or incurred, because of,
resulting from, in connection with, or arising out of any transaction, act,
omission, event or circumstance in any way connected with the Property or with
this Mortgage or any other Loan Document, including but not limited to any
bodily injury or death or property damage occurring in or upon or in the
vicinity of the Property through any cause whatsoever at any time on or before
the Release Date (hereinafter defined) any act performed or omitted to be
performed hereunder or under any other Loan Document, any breach by Grantor of
any representation, warranty, covenant, agreement or condition contained in this
Mortgage or in any other Loan Document, any default as defined herein, any claim
under or with respect to any Lease. The term “Release Date” as used
herein means the earlier of the following two dates: (i) the date on which the
indebtedness and obligations secured by this Mortgage have been paid and
performed in full and the Mortgage has been released; or (ii) the date on which
the lien of the Mortgage is fully and finally foreclosed or a conveyance by deed
in lieu of such foreclosure is hilly and finally effective and possession of the
Property has been given to and accepted by the purchaser or grantee free of
occupancy and claims to occupancy by Grantor and their heirs, devisees,
representatives, successors and assigns; provided that, if such payment,
performance, release, foreclosure or conveyance is challenged, in bankruptcy
proceedings or otherwise, the Release Date shall be deemed not to have occurred
until such challenge is validly released, dismissed with prejudice or otherwise
barred by law from further assertion. The indemnities in this paragraph (o)
shall not terminate upon the Release Date or upon the release, foreclosure or
other termination of this Mortgage but will survive the Release Date,
foreclosure of this Mortgage or conveyance in lieu of foreclosure, the repayment
of the Secured Indebtedness the termination of any and all Swap Transactions,
the discharge and release of this Mortgage and the other Loan Documents, any
bankruptcy or other debtor relief proceeding, and any other event
whatsoever.
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FINANCING
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Commons)
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Page 16
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Exhibit
10.2
(p) Taxes on Note or
Mortgage. Grantor will promptly pay all income, franchise and
other taxes owing by Grantor and any stamp, documentary, recordation and
transfer taxes or other similar taxes (unless such payment by Grantor is
prohibited by law) which may be required to be paid with respect to the Loan,
this Mortgage or any other instrument evidencing or securing any of the Secured
Indebtedness. In the event of the enactment after this date of any law of any
governmental entity applicable to Lenders, the Loan, the Property or this
Mortgage deducting from the value of property for the purpose of taxation any
lien or security interest thereon, or imposing upon Lenders the payment of the
whole or any part of the taxes or assessments or charges or liens herein
required to be paid by Grantor, or changing in any way the laws relating to the
taxation of deeds of trust or mortgages or security agreements or debts secured
by deeds of trust or mortgages or security agreements or the interest of the
mortgagee or secured party in the property covered thereby, or the manner of
collection of such taxes, so as to affect this Mortgage or the Secured
Indebtedness or Lenders, then, and in any such event, Grantor, upon demand by
Administrative Agent, shall pay such taxes, assessments, charges or liens, or
reimburse Lenders therefor; provided, however, that if in the opinion of counsel
for Administrative Agent (i) it might be unlawful to require Grantor to make
such payment or (ii) the making of such payment might result in the imposition
of interest beyond the maximum amount permitted by law, then and in such event,
the Required Lenders may elect, by notice in writing given to Grantor, to
declare all of the Secured Indebtedness to be and become due and payable ninety
(90) days from the giving of such notice.
(q) Intentionally
Deleted.
Section
2.2. Performance by
Administrative Agent on Grantor’s Behalf. Grantor agrees that,
if Grantor fails to perform any act or to take any action which under this
Mortgage Grantor is required to perform or take, or to pay any money which under
this Mortgage Grantor is required to pay, and such failure constitutes an Event
of Default under this Mortgage, then Administrative Agent, in Grantor’s name or
its own name, may (but shall not be obligated to) perform or cause to be
performed such act or take such action or pay such money, and any expenses so
incurred by Administrative Agent and any money so paid by Administrative Agent
shall be a demand obligation owing by Grantor to Administrative Agent (which
obligation Grantor hereby promises to pay), shall be a part of the Secured
Indebtedness, and Administrative Agent, upon making such payment, shall be
subrogated to all of the rights of the person, entity or body politic receiving
such payment. Administrative Agent and its designees shall have the right to
enter upon the Property at any time and from time to time for any such purposes.
No such payment or performance by Administrative Agent shall waive or cure any
default or waive any right, remedy or recourse of Administrative Agent. Any such
payment may be made by Administrative Agent in reliance on any statement,
invoice or claim without inquiry into the validity or accuracy thereof. Each
amount due and owing by Grantor to Administrative Agent pursuant to this
Mortgage shall bear interest, from the date such amount becomes due until paid,
at the rate per annum provided in the Loan Agreement for interest on past due
principal owed on the Loan, which interest shall be payable to Administrative
Agent on demand; and all such amounts, together with such interest thereon,
shall automatically and without notice be a part of the Secured Indebtedness.
The amount and nature of any expense by Administrative Agent hereunder and the
time when paid shall be fully established by the certificate of Administrative
Agent or any of Administrative Agent’s officers or agents.
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FINANCING
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Commons)
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Page 17
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Exhibit
10.2
Section
2.3. Absence of Obligations of
Administrative Agent with Respect to Property. Notwithstanding anything
in this Mortgage to the contrary, including, without limitation, the definition
of “Property” and/or the provisions of Article 3 hereof, (i) to the extent
permitted by applicable law, the Property is composed of Grantor’s rights, title
and interests therein but not Grantor’s obligations, duties or liabilities
pertaining thereto, (ii) Administrative Agent neither assumes nor shall have any
obligations, duties or liabilities in connection with any portion of the items
described in the definition of “Property” herein, either prior to or after
obtaining title to such Property, whether by foreclosure sale, the granting of a
deed in lieu of foreclosure or otherwise, and (iii) Administrative Agent may, at
any time prior to or after the acquisition of title to any portion of the
Property as above described, advise any party in writing as to the extent of
Administrative Agent’s interest therein and/or expressly disaffirm in writing
any rights, interests, obligations, duties and/or liabilities with respect to
such Property or matters related thereto. Without limiting the generality of the
foregoing, it is understood and agreed that Administrative Agent shall have no
obligations, duties or liabilities prior to or after acquisition of title to any
portion of the Property, as lessee under any lease or purchaser or seller under
any contract or option unless Administrative Agent elects otherwise by written
notification.
Section
2.4. Authorization to File
Financing Statements; Power of Attorney. Grantor hereby
authorizes Administrative Agent at any time and from time to time to file any
initial financing statements, amendments thereto and continuation statements as
authorized by applicable law, required by Administrative Agent to establish or
maintain the validity, perfection and priority of the security interests granted
in this Mortgage. For purposes of such filings, Grantor agrees to furnish any
information requested by Administrative Agent promptly upon request by
Administrative Agent. Grantor also ratifies its authorization for Administrative
Agent to have filed any like initial financing statements, amendments thereto or
continuation statements if filed prior to the date of this Mortgage. Grantor
hereby irrevocably constitutes and appoints Administrative Agent and any officer
or agent of Administrative Agent, with full power of substitution, as its true
and lawful attorneys-in-fact with full irrevocable power and authority in the
place and stead of Grantor or in Grantor’s own name to execute in Grantor’s name
any such documents and to otherwise carry out the purposes of this Section 2.4,
to the extent that Grantor’s authorization above is not sufficient. To the
extent permitted by law, Grantor hereby ratifies all acts said attorneys-in-fact
shall lawfully do or cause to be done in the future by virtue hereof. This power
of attorney is a power coupled with an interest and shall be
irrevocable.
Section
2.5. Compliance with Condominium
Act and Condominium Documents.
(a) Grantor
shall comply with and perform all of its obligations, regardless of whether said
obligations arise from the status of Grantor as an owner of Units comprising the
Land or as Declarant (as such term is defined in the Condominium Act), under the
Condominium Declaration, Condominium Act, the Interstate Land Sales Act, the
Condominium By-laws, and any rules and regulations of the Condominium
Association (the Condominium Declaration, the Condominium By-laws and the rules
and regulations of the Condominium Association being collectively hereinafter
referred to as the “Condominium Documents”), and Grantor shall not violate or
breach any material warranty, representation, covenant or agreement contained
therein and binding on it. Grantor shall promptly deliver to Administrative
Agent a true and full copy of each and every notice of default received by
Grantor with respect to any obligation of Grantor under the provisions of the
Condominium Act, the Interstate Land Sales Act, or the Condominium
Documents.
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Commons)
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Page 18
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Exhibit
10.2
(b) During
the period of Declarant control, if any, specified in the Condominium
Declaration, no material amendments, modifications, supplements or releases
shall be made to any of the Condominium Documents (excluding any rules and
regulations of the Condominium Association) without the prior written approval
of Administrative Agent, which approval shall not be unreasonably withheld or
delayed.
(c) Grantor
shall not, without the prior written consent of Administrative Agent,
intentionally terminate, cancel, surrender or abandon any material rights of the
Declarant provided under the Condominium Declaration or the Condominium Act, and
any such termination, cancellation, surrender or abandonment, or attempt
thereof, without Administrative Agent’s consent, shall he invalid and of no
force and effect.
(d) Grantor
shall pay to the Condominium Association all common expenses and other
assessments required of it by the Condominium Declaration and shall deliver
proof of such payment (and an accounting of the balance of funds on deposit from
time to time in the common expense fund or funds required to be established by
the Condominium Declaration) upon reasonable demand by Administrative Agent made
at reasonable intervals.
(e) Upon
the occurrence and during the continuation of an Event of Default under the
terms of this Mortgage, Administrative Agent shall have all rights and
privileges which Grantor (as the owner of a Unit) has by virtue of the
Condominium Act and the Condominium Declaration as though Administrative Agent
were in fact an owner, including without limiting the generality of the
foregoing, all voting rights accruing to Grantor under the terms of the
Condominium Declaration; and Grantor hereby nominates and appoints
Administrative Agent irrevocably so long as this Mortgage remains in effect as
Grantor’s exclusive proxy to vote and, as Grantor’s exclusive agent, to act with
respect to all of said rights, upon the occurrence and during the continuation
of an Event of Default under the terms of this Mortgage. The Condominium
Association (or the Board of Directors of the Condominium Association) shall be
entitled to rely conclusively on written notice of default from Administrative
Agent to the Condominium Association (or the Board of Directors of the
Condominium Association) as to the existence of such Event of Default and as to
Administrative Agent’s rights and privileges under this subparagraph (e),
including all voting rights accruing to Grantor under the terms of the
Condominium Declaration and the Condominium Act. In no event shall
Administrative Agent be liable for any assessments of common expenses provided
for in the Condominium Documents, or under any resolution adopted by the
Condominium Association, nor shall Administrative Agent be deemed to be a
Declarant, by the exercise of its rights under this Mortgage, unless and until
Administrative Agent agrees and assumes, in writing, the obligations of
Declarant arising under the Condominium Declaration.
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FINANCING
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Commons)
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Page 19
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Exhibit
10.2
(f) Grantor
shall not, except after notice to Administrative Agent and with the prior
written consent of Administrative Agent, (i) vote for or consent to any material
modification of, material amendment to or relaxation in the enforcement of any
provision of the Condominium Declaration; (ii) in the event of damages to or
destruction of the Condominium, exercise any vote with respect to casualty or
condemnation proceeds; (iii) partition or subdivide any Unit; (iv) consent to or
vote for the termination of the Condominium, except for abandonment or
termination deemed to have occurred, if at all, by law in the case of
substantial destruction by tire or other casualty or in the case of a taking by
condemnation or eminent domain; (v) consent to or vote for any material
amendment to the Condominium Documents including, without limitation, any
amendment which would change the allocated interests of the owners in the
Condominium; or (vi) consent to or vote for the effectuation of any decision by
the Condominium Association to terminate professional management and assume
self-management of the Condominium.
ARTICLE
3
Reserved
ARTICLE
4
Event
of Default
Section
4.1. Events of
Default. The occurrence of any one of the following shall be a
default under this Mortgage (“Event of Default”):
(a) Nonperformance of
Covenants. Any covenant, agreement or condition herein or in
any other Loan Document (other than covenants otherwise addressed in another
paragraph of this Section) is not fully and timely performed, observed or kept,
and such failure is not cured within the applicable notice and cure period (if
any) provided for herein or in such other Loan Document.
(b) Default under Loan Agreement
or other Loan Documents. The occurrence of an Default under
(and as defined in) the Loan Agreement or a default or event of default (however
defined in) any other Loan Document (after giving effect to any notice or cure
periods, if any).
Section
4.2. Notice and
Cure. If any provision of this Mortgage or any other Loan
Document provides for Administrative Agent to give to Grantor any notice
regarding a default or incipient default, then if Administrative Agent shall
fail to give such notice to Grantor as provided, the sole and exclusive remedy
of Grantor for such failure shall be to seek appropriate equitable relief to
enforce the agreement to give such notice and to have any acceleration of the
maturity of the Loan and the Secured Indebtedness postponed or revoked and
foreclosure proceedings in connection therewith delayed or terminated pending or
upon the curing of such default in the manner and during the period of time
permitted by such agreement, if any, and Grantor shall have no right to damages
or any other type of relief not herein specifically set out against
Administrative Agent, all of which damages or other relief are hereby waived by
Grantor. Nothing herein or in any other Loan Document shall operate or be
construed to add on or make cumulative any cure or grace periods specified in
any of the Loan Documents.
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FINANCING
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Commons)
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Page 20
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Exhibit
10.2
ARTICLE
5
Remedies
Section
5.1. Certain
Remedies. If an Event of Default shall occur and be
continuing, Administrative Agent may (but shall have no obligation to) exercise
any one or more of the following remedies, without notice (unless notice is
required by applicable statute):
(a) Acceleration;
Termination. Administrative Agent may at any time and from
time to time declare any or all of the Secured Indebtedness immediately due and
payable and may terminate any and all Swap Transactions. Upon any such
declaration, such Secured Indebtedness shall, thereupon be immediately due and
payable, and such Swap Transactions shall immediately terminate, without
presentment, demand, protest, notice of protest, notice of acceleration or of
intention to accelerate or any other notice or declaration of any kind, all of
which are hereby expressly waived by Grantor.
(b) Enforcement
of Assignment of Rents. Administrative Agent may
take any of the actions described in that certain Assignment of Rents, Leases
and Receivables (the “Assignment of Rents”) dated of even date herewith executed
by Grantor for the benefit of Administrative Agent on behalf of itself and the
Lenders with or without taking possession of any portion of the Property or
taking any action with respect to such possession.
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FINANCING
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Commons)
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Page 21
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Exhibit
10.2
(c) Foreclosure. Upon
the occurrence of an Event of Default, Trustee, or his successor or substitute,
is authorized and empowered and it shall be his special duty at the request of
Administrative Agent to sell the Property or any part thereof situated in the
State of Texas, at the courthouse of any county (whether or not the counties in
which the Property is located are contiguous, if the Property is located in more
than one county) in the State of Texas in which any part of the Property is
situated, at public venue to the highest bidder for cash between the hours of
ten o’clock a.m. and four o’clock p.m. on the first Tuesday in any month or at
such other place, time and date as provided by the statutes of the State of
Texas then in force governing sales of real estate under powers of sale
conferred by deed of trust, after having given notice of such sale in accordance
with such statutes. Any sale made by Trustee hereunder may be as an entirety or
in such parcels as Administrative Agent may request. To the extent permitted by
applicable law, any sale may be adjourned by announcement at the time and place
appointed for such sale without further notice except as may be required by law.
The sale by Trustee of less than the whole of the Property shall not exhaust the
power of sale herein granted, and Trustee is specifically empowered to make
successive sale or sales under such power until the whole of the Property shall
be sold; and, if the proceeds of such sale of less than the whole of the
Property shall be less than the aggregate of the Secured Indebtedness and the
expense of executing this trust as provided herein, this Mortgage and the lien
hereof shall remain in full force and effect as to the unsold portion of the
Property just as though no sale had been made; provided, however, that Grantor
shall never have any right to require the sale of less than the whole of the
Property but Administrative Agent shall have the right, at its sole election, to
request Trustee to sell less than the whole of the Property. Trustee may, after
any request or direction by Administrative Agent, sell not only the real
property but also the Collateral and other interests which are a part of the
Property, or any part thereof, as a unit and as a part of a single sale, or may
sell any part of the Property separately from the remainder of the Property. It
shall not be necessary for Trustee to have taken possession of any part of the
Property or to have present or to exhibit at any sale any of the Collateral.
After each sale, Trustee shall make to the purchaser or purchasers at such sale
good and sufficient conveyances in the name of Grantor, conveying the property
so sold to the purchaser or purchasers with general warranty of title of
Grantor, subject to the Permitted Encumbrances (and to such leases and other
matters, if any, as Trustee may elect upon request of Administrative Agent), and
shall receive the proceeds of said sale or sales and apply the same as herein
provided. Payment of the purchase price to the Trustee shall satisfy the
obligation of purchaser at such sale therefor, and such purchaser shall not he
responsible for the application thereof. The power of sale granted herein shall
not be exhausted by any sale held hereunder by Trustee or his substitute or
successor, and such power of sale may be exercised from time to time and as many
times as Administrative Agent may deem necessary until all of the Property has
been duly sold and all Secured Indebtedness has been fully paid. In the event
any sale hereunder is not completed or is defective in the opinion of
Administrative Agent, such sale shall not exhaust the power of sale hereunder
and Administrative Agent shall have the right to cause a subsequent sale or
sales to he made hereunder. Any and all statements of fact or other recitals
made in any deed or deeds or other conveyances given by Trustee or any successor
or substitute appointed hereunder as to nonpayment of the Secured Indebtedness
or as to the occurrence of any default, or as to Administrative Agent’s having
declared all of said indebtedness to be due and payable, or as to the request to
sell, or as to notice of time, place and terms of sale and the properties to be
sold having been duly given, or as to the refusal, failure or inability to act
of Trustee or any substitute or successor trustee, or as to the appointment of
any substitute or successor trustee, or as to any other act or thing having been
duly done by Administrative Agent or by such Trustee, substitute or successor,
shall be taken as prima facie evidence of the truth of the facts so stated and
recited. The Trustee or his successor or substitute may appoint or delegate any
one or more persons as agent to perform any act or acts necessary or incident to
any sale held by Trustee, including the posting of notices and the conduct of
sale, but in the name and on behalf of Trustee, his successor or substitute. If
Trustee or his successor or substitute shall have given notice of sale
hereunder, any successor or substitute Trustee thereafter appointed may complete
the sale and the conveyance of the property pursuant thereto as if such notice
had been given by the successor or substitute Trustee conducting the
sale.
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FINANCING
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Commons)
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Page 22
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Exhibit
10.2
(d) Uniform Commercial
Code. Without limitation of Administrative Agent’s rights of
enforcement with respect to the Collateral or any part thereof in accordance
with the procedures for foreclosure of real estate, Administrative Agent may
exercise its rights of enforcement with respect to the Collateral or any part
thereof under the UCC, as in effect from time to time (or under the Uniform
Commercial Code in force, from time to time, in any other state to the extent
the same is applicable law) and in conjunction with, in addition to or in
substitution for those rights and remedies: (I) Administrative Agent may enter
upon Grantor’s premises to take possession of, assemble and collect the
Collateral or, to the extent and for those items of the Collateral permitted
under applicable law, to render it unusable; (2) Administrative Agent may
require Grantor to assemble the Collateral and make it available at a place
Administrative Agent designates which is mutually convenient to allow
Administrative Agent to take possession or dispose of the Collateral; (3)
written notice mailed to Grantor as provided herein at least five (5) days prior
to the date of public sale of the Collateral or prior to the date after which
private sale of the Collateral will be made shall constitute reasonable notice;
provided that, if Administrative Agent fails to comply with this clause (3) in
any respect, its liability for such failure shall be limited to the liability
(if any) imposed on it as a matter of law under the UCC, as in effect from time
to time (or under the Uniform Commercial Code, in force from time to time, in
any other state to the extent the same is applicable law); (4) any sale made
pursuant to the provisions of this paragraph shall be deemed to have been a
public sale conducted in a commercially reasonable manner if held
contemporaneously with and upon the same notice as required for the sale of the
Property under power of sale as provided in paragraph (c) above in this
Section 5.1; (5) in the event of a foreclosure sale, whether made by
Trustee under the terms hereof, or under judgment of a court, the Collateral and
the other Property may, at the option of Administrative Agent, be sold as a
whole; (6) it shall not be necessary that Administrative Agent sake possession
of the Collateral or any part thereof prior to the time that any sale pursuant
to the provisions of this Section is conducted and it shall not be necessary
that the Collateral or any part thereof be present at the location of such sale;
(7) with respect to application of proceeds from disposition of the Collateral
under Section 5.2 hereof, the costs and expenses incident to disposition shall
include the reasonable expenses of retaking, holding, preparing for sale or
lease, selling, leasing and the like and the reasonable attorneys’ fees and
legal expenses (including, without limitation, the allocated costs for in-house
legal services) incurred by Administrative Agent; (8) any and all statements of
fact or other recitals made in, any bill of sale or assignment or other
instrument evidencing any foreclosure sale hereunder as to nonpayment of the
Secured Indebtedness or as to the occurrence of any Event of Default, or as to
Administrative Agent having declared all of such indebtedness to be due and
payable, or as to notice of time, place and terms of sale and of the properties
to be sold having been duly given, or as to any other act or thing having been
duly done by Administrative Agent, shall be taken as prima facie evidence of the
truth of the facts so stated and recited; (9) Administrative Agent may appoint
or delegate any one or more persons as agent to perform any act or acts
necessary or incident to any sale held by Administrative Agent, including the
sending of notices and the conduct of the sale, but in the name and on behalf of
Administrative Agent; (10) Administrative Agent may comply with any applicable
state or federal law or regulatory requirements in connection with a disposition
of the Collateral, and such compliance will not be considered to affect
adversely the commercial reasonableness of any sale of the Collateral; (11)
Administrative Agent may sell the Collateral without giving any warranties as to
the Collateral, and specifically disclaim all warranties including, without
limitation, warranties relating to title, possession, quiet enjoyment and the
like, and all warranties of quality, merchantability and fitness for a specific
purpose, and this procedure will not be considered to affect adversely the
commercial reasonableness of any sale of the Collateral; (12) Grantor
acknowledges that a private sale of the Collateral may result in less proceeds
than a public sale; and (13) Grantor acknowledges that the Collateral may be
sold at a loss to Grantor, and that, in such event, subject to applicable law,
Administrative Agent shall have no liability or responsibility to Grantor for
such loss.
(e) Lawsuits. Administrative
Agent may, to the fullest extent permitted by applicable law, proceed by a suit
or suits in equity or at law, whether for the specific performance of any
covenant or agreement herein contained or in aid of the execution of any power
herein granted, or for any foreclosure hereunder or for the sale of the Property
under the judgment or decree of any court or courts of competent
jurisdiction.
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FINANCING
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Commons)
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Page 23
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Exhibit
10.2
(f) Entry on
Property. Administrative Agent is authorized, prior or
subsequent to the institution of any foreclosure proceedings, to the fullest
extent permitted by applicable law, to enter upon the Property, or any part
thereof, and to take possession of the Property and all books and records, and
all recorded data of any kind or nature, regardless of the medium of recording
including, without limitation, all software, writings, plans, specifications and
schematics relating thereto, and to exercise without interference from Grantor
any and all rights which Grantor has with respect to the management, possession,
operation, protection or preservation of the Property. Administrative Agent
shall not be deemed to have taken possession of the Property or any part thereof
except upon the exercise of its right to do so, and then only to the extent
evidenced by its demand and overt act specifically for such purpose. All costs,
expenses and liabilities of every character incurred by Administrative Agent in
managing, operating, maintaining, protecting or preserving the Property shall
constitute a demand obligation of Grantor (which obligation Grantor hereby
promises to pay) to Administrative Agent pursuant to this Mortgage. If necessary
to obtain the possession provided for above, Administrative Agent may invoke any
and all legal remedies to dispossess Grantor. In connection with any action
taken by Administrative Agent pursuant to this Section, Administrative Agent
shall not be liable for any loss sustained by Grantor resulting from any failure
to let the Property or any part thereof, or from any act or omission of
Administrative Agent in managing the Property unless such loss is caused by the
gross negligence, willful misconduct or bad faith of Administrative Agent, nor
shall Administrative Agent be obligated to perform or discharge any obligation,
duty or liability of Grantor arising under any lease or other agreement relating
to the Property or arising under any Permitted Encumbrance or otherwise arising.
Grantor hereby assents to, ratifies and confirms any and all lawful actions of
Administrative Agent with respect to the Property taken under this
Section.
(g) Receiver. Administrative
Agent shall as a matter of right be entitled to the appointment of a receiver or
receivers for all or any part of the Property whether such receivership be
incident to a proposed sale (or sales) of such property or otherwise, and
without regard to the value of the Property or the solvency of any person or
persons liable for the payment of the indebtedness secured hereby, and Grantor
does hereby irrevocably consent to the appointment of such receiver or
receivers, waives notice of such appointment, of any request therefor or hearing
in connection therewith, and any and all defenses to such appointment, agrees
not to oppose any application therefor by Administrative Agent, and agrees that
such appointment shall in no manner impair, prejudice or otherwise affect the
rights of Administrative Agent to application of Rents as provided in this
Mortgage. Nothing herein is to be construed to deprive Administrative Agent of
any other right, remedy or privilege it may have under the law to have a
receiver appointed. Any money advanced by Administrative Agent in connection
with any such receivership shall be a demand obligation (which obligation
Grantor hereby promises to pay) owing by Grantor to Administrative Agent
pursuant to this Mortgage.
(h) Powers of Administrative
Agent. Administrative Agent may, either directly or through an
agent or court-appointed receiver, and without regard to the adequacy of any
security for the Secured Indebtedness:
(i) enter,
take possession of, manage, operate, protect, preserve and maintain, and
exercise any other rights of an owner of, the Property, and use any other
properties or facilities of Grantor relating to the Property, all without
payment of rent or other compensation to Grantor;
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Exhibit
10.2
(ii) enter
into such contracts and take such other action as Administrative Agent deems
appropriate to complete all or any part of the Improvements or any other
construction on the Land, subject to such modifications and other changes in the
Improvements or the plan of development as Administrative Agent may deem
appropriate;
(iii) make,
cancel, enforce or modify leases, obtain and evict tenants, fix or modify rents
and, in its own name or in the name of Grantor, otherwise conduct any business
of Grantor in relation to the Property and deal with Grantor’s creditors,
debtors, tenants, agents and employees and any other persons having any
relationship with Grantor in relation to the Property, and amend any contracts
between them, in any manner Administrative Agent may determine in its
commercially reasonable judgment;
(iv) subject
to the terms of the Collateral Assignment, either with or without taking
possession of the Property, notify obligors on any contracts that all payments
and other performance are to be made and rendered directly and exclusively to
Administrative Agent, and in its own name supplement, modify, amend, renew,
extend, accelerate, accept partial payments or performance on, make allowances
and adjustments and issue credits with respect to, give approvals, waivers and
consents under, release, settle, compromise, compound, sue for, collect or
otherwise liquidate, enforce or deal with any contracts or other rights,
including collection of amounts past due and unpaid (Grantor agreeing not to
take any such action, with respect to any obligation in excess of $5,000, during
the continuation of a Default without prior written authorization from
Administrative Agent);
(v) endorse,
in the name of Grantor, all checks, drafts and other evidences of payment
relating to the Property, and receive, open and dispose of all mail addressed to
Grantor and notify the postal authorities to change the address for delivery of
such mail to such address as Administrative Agent may designate;
and
take such
other action as Administrative Agent deems appropriate to protect the security
of this Mortgage.
(i) Termination of Commitment to
Lend. Administrative Agent may terminate any commitment or
obligation to lend or disburse funds under the Loan Documents and/or the loan
documents evidencing that certain $42,000,000.00 loan from Bank of America,
N.A., as administrative agent and letter of credit issuing agent, to Grantor
(the “Mockingbird Loan”) or enter into any other credit arrangement to or for
the benefit of Grantor.
(j) Other Rights and
Remedies. Administrative Agent may exercise any and all other
rights and remedies which Administrative Agent may have under the Loan Documents
or under the loan documents evidencing the Mockingbird Loan, or at law or in
equity or otherwise.
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FINANCING
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Exhibit
10.2
Section
5.2. Proceeds of
Foreclosure. The proceeds held by Trustee or Administrative
Agent or any receiver or public officer in foreclosure of the liens and security
interests evidenced hereby shall be applied in accordance with the requirements
of applicable laws and to the extent consistent therewith as follows: (i) FIRST,
to the payment of all necessary costs and expenses incident to such foreclosure
sale, including but not limited to all attorneys’ fees and legal expenses,
advertising costs, auctioneer’s fees, costs of title rundowns and lien searches,
inspection fees, appraisal costs, fees for professional services, environmental
assessment and remediation fees, all court costs and charges of every character
(not exceeding five percent (5%) of the gross proceeds of such sale), to Trustee
acting under the provisions of paragraph (c) of Section
5.1 hereof if foreclosed by power of sale as provided in said paragraph,
and to the payment of the other Secured Indebtedness, including specifically
without limitation the principal, accrued interest and attorneys’ fees due and
unpaid on the Loan and the amounts due and unpaid and owed to Administrative
Agent under this Mortgage the order and manner of application to the items in
this clause (all with interest at the rate per annum provided in the Loan
Agreement all in Administrative Agent’s sole discretion; (ii) SECOND,
to amounts due and payable to Swap Bank under any Swap Transactions, and (iii)
THIRD,
the remainder, if any, shall be paid to Grantor, or to Grantor’s successors or
assigns, or such other persons (including the Administrative Agent or
beneficiary of any inferior lien) as may be entitled thereto by law; provided,
however, that if Administrative Agent is uncertain which person or persons are
so entitled, Administrative Agent may interplead such remainder in any court of
competent jurisdiction, and the amount of any attorneys’ fees, court costs and
expenses incurred in such action shall be a part of the Secured Indebtedness and
shall be reimbursable (without limitation) from such remainder.
Section
5.3. Administrative Agent as
Purchaser. Administrative Agent or any Lender shall have the
right to become the purchaser at any sale held by Trustee or substitute or
successor or by any receiver or public officer or at any public sale, and
Administrative Agent or any Lender shall have the right to credit upon the
amount of Administrative Agent’s or such Lender’s successful bid, to the extent
necessary to satisfy such bid, all or any part of the Secured Indebtedness held
by such Lender or, alternatively, all Lenders, in the case of a purchase by
Administrative Agent or its Affiliate acting on behalf of and with the consent
of the Required Lenders, in such manner and order as Administrative Agent or
such Lender may elect.
Section
5.4. Foreclosure as to Matured
Debt. Upon the occurrence of a default, Holder shall have the
right to proceed with foreclosure (judicial or nonjudicial) of the liens and
security interests hereunder without declaring the entire Secured Indebtedness
due, and in such event any such foreclosure sale may he made subject to the
unmatured part of the Secured Indebtedness; and any such sale shall not in any
manner affect the unmatured part of the Secured Indebtedness, but as to such
unmatured part this Mortgage shall remain in full force and effect just as
though no sale had been made. The proceeds of such sale shall be applied as
provided in Section 5.2 hereof except that the amount paid under clause FIRST
thereof shall be only the matured portion of the Secured Indebtedness and any
proceeds of such sale in excess of those provided for in clause FIRST (modified
as provided above) shall be applied to the prepayment (without penalty) of any
other Secured Indebtedness in such manner and order and to such extent as Holder
deems advisable, and the remainder, if any, shall be applied as provided in
clause SECOND of Section 5.2 hereof. Several sales may be made hereunder without
exhausting the right of sale for any unmatured part of the Secured
Indebtedness..
Section
5.5. Remedies
Cumulative. All rights and remedies provided for herein and in
any other Loan Document are cumulative of each other and of any and all other
rights and remedies existing at law or in equity, and Trustee and Administrative
Agent shall, in addition to the rights and remedies provided herein or in any
other Loan Document, be entitled to avail themselves of all such other rights
and remedies as may now or hereafter exist at law or in equity for the
collection of the Secured Indebtedness and the enforcement of the covenants
herein and the foreclosure of the liens and security interests evidenced hereby,
and the resort to any right or remedy provided for hereunder or under any such
other Loan Document or provided for by law or in equity shall not prevent the
concurrent or subsequent employment of any other appropriate right or rights or
remedy or remedies.
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Exhibit
10.2
Section
5.6. Discretion as to
Security. Administrative Agent may resort to any security
given by this Mortgage or to any other security now existing or hereafter given
to secure the payment of the Secured Indebtedness, in whole or in part, and in
such portions and in such order as may seem best to Administrative Agent in its
sole and uncontrolled discretion, and any such action shall not in anywise be
considered as a waiver of any of the rights, benefits, liens or security
interests evidenced by this Mortgage.
Section
5.7. Grantor’s Waiver of Certain
Rights. To the full extent 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
appraisement, valuation, stay, extension or redemption, homestead, moratorium,
reinstatement, marshaling or forbearance, and Grantor, for Grantor, Grantor’s
heirs, devisees, representatives, successors and assigns, and for any and all
persons ever claiming any interest in the Property, to the extent permitted by
applicable law, hereby waives and releases all rights of redemption, valuation,
appraisement, stay of execution, notice of intention to mature or declare due
the whole of the Secured Indebtedness, notice of election to mature or declare
due the whole of the Secured Indebtedness and all rights to a marshaling of
assets of Grantor, including the Property, or to a sale in inverse order of
alienation in the event of foreclosure of the liens and/or security interests
hereby created. Grantor shall not have or assert any right under any statute or
rule of law including Chapter 34 of the Texas Business and Commerce Code,
pertaining to the marshaling of assets, sale in inverse order of alienation, the
exemption of homestead, the administration of estates of decedents, or other
matters whatsoever to defeat, reduce or affect the right of Administrative Agent
under the terms of this Mortgage to a sale of the Property for the collection of
the Secured Indebtedness without any prior or different resort for collection,
or the right of Administrative Agent under the terms of this Mortgage to the
payment of the Secured Indebtedness out of the proceeds of sale of the Property
in preference to every other claimant whatsoever. Grantor waives any right or
remedy which Grantor may have or be able to assert pursuant to any provision of
any statute or rule of law pertaining to the rights and remedies of sureties. If
any law referred to in this Section and now in force, of which Grantor or
Grantor’s heirs, devisees, representatives, successors or assigns or any other
persons claiming any interest in the Property 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.
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Exhibit
10.2
Section
5.8. Delivery of Possession After
Foreclosure. In the event there is a foreclosure sale
hereunder and at the time of such sale, Grantor or Grantor’s successors as
owners of the Property are occupying or using the Property, or any part thereof,
each and all shall immediately become the tenant of the purchaser at such sale,
which tenancy shall be a tenancy from day to day, terminable at the will of
purchaser, at a reasonable rental per day based upon the value of the property
occupied, such rental to be due daily to the purchaser; and to the extent
permitted by applicable law, the purchaser at such sale shall, notwithstanding
any language herein apparently to the contrary, have the sole option to demand
immediate possession following the sale or to permit the occupants to remain as
tenants at will. After such foreclosure, any leases to tenants or subtenants
that are subject to this Mortgage (either by their date, their express terms, or
by agreement of the tenant or subtenant) shall, at the sole option of
Administrative Agent or any purchaser at such sale, but subject to any express
agreement between Administrative Agent and such tenant or subtenant, either (i)
continue in full force and effect, and the tenant(s) or subtenant(s) thereunder
will, upon request, attorn to and acknowledge in writing to the purchaser or
purchasers at such sale or sales as landlord thereunder, or (ii) upon notice to
such effect from Administrative Agent, the Trustees or any purchaser or
purchasers, terminate within thirty (30) days from the date of sale. Subject to
the foregoing, in the event the tenant fails to surrender possession of the
Property upon demand, the purchaser shall be entitled to institute and maintain
a summary action for possession of the Property (such as an action for forcible
detainer) in any court having jurisdiction.
Section
5.9. Right of Rescission;
Adjournment. Administrative Agent may from time to time
rescind any notice of default or notice of sale before any Trustee’s sale in
accordance with the laws of the State of Texas. The exercise by Administrative
Agent of such right of rescission shall not constitute a waiver of any breach or
default then existing or subsequently occurring, or impair the right of
Administrative Agent to execute and deliver to Trustee, as above provided, other
declarations or notices of default to satisfy the obligations of this Mortgage
or secured hereby, nor otherwise affect any provision, covenant or condition of
this Mortgage or any other security document or any of the rights, obligations
or remedies of Trustee or Administrative Agent hereunder or thereunder.
Administrative Agent may adjourn from time to time any sale by it to be made
under or by virtue of this Mortgage by announcement at the time and place
appointed for such sale or for such adjourned sale or sales; and, except as
otherwise provided by any applicable provision of law, Administrative Agent,
without further notice or publication, may make such sale at the time and place
to which the same shall be so adjourned.
Section
5.10. Effective as
Mortgage. This instrument shall be effective as a mortgage as
well as a deed of trust and upon the occurrence of an Event of Default may be
foreclosed as to any of the Property in any manner permitted by applicable law,
and any foreclosure suit may be brought by Trustee or by Administrative Agent;
and to the extent, if any, required to cause this instrument to be so effective
as a mortgage as well as a deed of trust, Grantor hereby mortgages the Property
to Administrative Agent. In the event a foreclosure hereunder shall be commenced
by Trustee, or his substitute or successor, Administrative Agent may at any time
before the sale of the Property direct Trustee to abandon the sale, and may then
institute suit for the collection of the Secured Indebtedness, and for the
foreclosure of this Mortgage. It is agreed that if Administrative Agent should
institute a suit for the collection of the Secured Indebtedness and for the
foreclosure of this Mortgage, Administrative Agent may at any time before the
entry of a final judgment in said suit dismiss the same, and require Trustee,
his substitute or successor to sell the Property in accordance with the
provisions of this Mortgage.
ARTICLE
6
Miscellaneous
Section
6.1. Scope of
Mortgage. This Mortgage is a deed of trust and mortgage of
both real and personal property, a security agreement, an assignment of rents
and leases, a financing statement and fixture filing and a collateral
assignment, and also covers proceeds and fixtures.
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Exhibit
10.2
Section
6.2. Effective as a Financing
Statement and Fixture Filing. This Mortgage shall be effective
as a financing statement filed as a fixture filing with respect to all fixtures
included within the Property and is to be filed for record in the real estate
records of each county where any part of the Property (including said fixtures)
is situated. This Mortgage shall also be effective as a financing statement
covering minerals or the like (including oil and gas), timber, accounts and
general intangibles under the UCC, as amended, and similar provisions (if any)
of the Uniform Commercial Code as enacted in any other state where the Property
is situated which will be financed at the wellhead or minehead of the wells or
mines located on the Property and is to be filed for record in the real estate
records of each county where any part of the Property is situated. To the extent
permitted under applicable law, this Mortgage shall also be effective as a
financing statement covering any other Property and may be filed in any other
appropriate filing or recording office. The mailing address of Grantor and the
Administrative Agent are set forth in the introductory paragraph of this
Mortgage. To the extent permitted under applicable law, a carbon, photographic
or other reproduction of this Mortgage or of any financing statement relating to
this Mortgage shall be sufficient as a financing statement for any of the
purposes referred to in this Section.
Section
6.3. Notice to Account
Debtors. In addition to the rights granted elsewhere in this
Mortgage, Administrative Agent may at any time notify the account debtors or
obligors of any accounts, chattel paper, general intangibles, negotiable
instruments or other evidences of indebtedness included in the Collateral to pay
Administrative Agent directly.
Section
6.4. Waiver by Administrative
Agent. Administrative Agent may at any time and from time to
time by a specific writing intended for the purpose: (a) waive compliance by
Grantor with any covenant herein made by Grantor to the extent and in the manner
specified in such writing; (b) consent to Grantor’s doing any act which
hereunder Grantor is prohibited from doing, or to Grantor’s failing to do any
act which hereunder Grantor is required to do, to the extent and in the manner
specified in such writing; (c) release any part of the Property or any interest
therein from the lien and security interest of this Mortgage, without the
joinder of Trustee; or (d) release any party liable, either directly or
indirectly, for the Secured Indebtedness or for any covenant herein or in any
other Loan Document, without impairing or releasing the liability of any other
party. No such act shall in any way affect the rights or powers of
Administrative Agent or Trustee hereunder except to the extent specifically
agreed to by Administrative Agent in such writing.
Section
6.5. No Impairment of
Security. The lien, security interest and other security
rights of Administrative Agent hereunder or under any other Loan Document shall
not be impaired (except to the extent expressly stated therein) by any
indulgence, moratorium or release granted by Administrative Agent including, but
not limited to, any renewal, extension or modification which Administrative
Agent may grant with respect to any Secured Indebtedness, or any surrender,
compromise, release, renewal, extension, exchange or substitution which
Administrative Agent may grant in respect of the Property, or any part thereof
or any interest therein, or any release or indulgence granted to any endorser,
guarantor or surety of any Secured Indebtedness. The taking of additional
security by Administrative Agent shall not release or impair the lien, security
interest or other security rights of Administrative Agent hereunder or affect
the liability of Grantor or of any endorser, guarantor or surety, or improve the
right of any junior lienholder in the Property (without implying hereby
Administrative Agent’s consent to any junior lien).
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Exhibit
10.2
Section
6.6. Acts Not Constituting Waiver
by Administrative Agent. Administrative Agent may waive any
default without waiving any other prior or subsequent default. Administrative
Agent may remedy any default without waiving the default remedied. Neither
failure by Administrative Agent to exercise, nor delay by Administrative Agent
in exercising, nor discontinuance of the exercise of any right, power or remedy
(including but not limited to the right to accelerate the maturity of the
Secured Indebtedness or any part thereof) upon or after any default shall be
construed as a waiver of such default or as a waiver of the right to exercise
any such right, power or remedy at a later date. No single or partial exercise
by Administrative Agent of any right, power or remedy hereunder shall exhaust
the same or shall preclude any other or further exercise thereof, and every such
right, power or remedy hereunder may be exercised at any time and from time to
time. No modification or waiver of any provision hereof nor consent to any
departure by Grantor therefrom shall in any event be effective unless the same
shall be in writing and signed by Administrative Agent and then such waiver or
consent shall be effective only in the specific instance, for the purpose for
which given and to the extent therein specified. No notice to nor demand on
Grantor in any case shall of itself entitle Grantor to any other or further
notice or demand in similar or other circumstances. Remittances in payment of
any part of the Secured Indebtedness other than in the required amount in
immediately available U.S. funds shall not, regardless of any receipt or credit
issued therefor, constitute payment until the required amount is actually
received by Administrative Agent in immediately available U.S. funds and shall
be made and accepted subject to the condition that any check or draft may be
handled for collection in accordance with the practice of the collecting bank or
banks. Acceptance by Administrative Agent of any payment in an amount less than
the amount then due on any Secured Indebtedness shall be deemed an acceptance on
account only and shall not in any way excuse the existence of a default
hereunder notwithstanding any notation on or accompanying such partial payment
to the contrary.
Section
6.7. Grantor’s
Successors. If the ownership of the Property or any part
thereof becomes vested in a person other than Grantor, Administrative Agent may,
without notice to Grantor, deal with such successor or successors in interest
with reference to this Mortgage and to the Secured Indebtedness in the same
manner as with Grantor, without in any way vitiating or discharging Grantor’s
liability hereunder or for the payment of the indebtedness or performance of the
obligations secured hereby. No transfer of the Property, no forbearance on the
part of Administrative Agent, and no extension of the time for the payment of
the Secured Indebtedness given by Administrative Agent shall operate to release,
discharge, modify, change or affect, in whole or in part, the liability of
Grantor hereunder for the payment of the indebtedness or performance of the
obligations secured hereby or the liability of any other person hereunder for
the payment of the indebtedness secured hereby. Unless agreed to in writing in
connection with Administrative Agent’s consent to the transfer, each Grantor
agrees that it shall be bound by any modification of this Mortgage or any of the
other Loan Documents made by Administrative Agent and any subsequent owner of
the Property, with or without notice to such Grantor, and no such modifications
shall (i) impair the obligations of such Grantor under this Mortgage or any
other Loan Document or (ii) increase the obligations of Grantor, unless
consented to in writing by Grantor, under this Mortgage or any other Loan
Document. Nothing in this Section or elsewhere in this Mortgage shall be
construed to imply Administrative Agent’s consent to any transfer of the
Property.
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Exhibit
10.2
Section
6.8. Place of Payment; Forum;
Waiver of Jury Trial. All Secured Indebtedness which may be
owing hereunder at any time by Grantor shall be payable at the place designated
in the Loan Agreement (or if no such designation is made, at the address of
Administrative Agent indicated at the end of this Mortgage). Grantor hereby
irrevocably submits generally and unconditionally for itself and in respect of
its property to the non-exclusive jurisdiction of any State court, or any United
States federal court, sitting in Dallas, Texas, and to the non-exclusive
jurisdiction of any State court or any United States federal court sitting in
the state in which any of the Property is located, over any suit, action or
proceeding arising out of or relating to this Mortgage or the Secured
Indebtedness. Grantor hereby irrevocably waives, to the fullest extent permitted
by law, any objection that Grantor may now or hereafter have to the laying of
venue in any such court and any claim that any such court is an inconvenient
forum. Grantor hereby agrees and consents that, in addition to any methods of
service of process provided for under applicable law, all service of process in
any such suit, action or proceeding in any State court in which the Property is
located, or any United States federal court, sitting in the State in which the
Secured Indebtedness is payable may be made by certified or registered mail,
return receipt requested, directed to Grantor at its address stated at the end
of this Mortgage, or at a subsequent address of Grantor of which Administrative
Agent received actual notice from Grantor in accordance with this Mortgage, and
service so made shall be complete five (5) days after the same shall have been
so mailed. Nothing herein shall affect the right of Administrative Agent to
serve process in any manner permitted by law or limit the right of
Administrative Agent to bring proceedings against Grantor in any other court or
jurisdiction. TO THE FULLEST EXTENT PERMITTED BY LAW, GRANTOR, ADMINISTRATIVE
AGENT AND THE LENDERS EACH WAIVE THE RIGHT TO TRIAL BY JURY IN CONNECTION WITH
ANY ACTION, SUIT OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THIS MORTGAGE
OR ANY OTHER LOAN DOCUMENT.
Section
6.9. Subrogation to Existing
Liens; Vendor’s/Purchase Money Lien. To the extent that proceeds of the
Loan are used to pay indebtedness secured by any outstanding lien, security
interest, charge or prior encumbrance against the Property, such proceeds have
been advanced by Administrative Agent at Borrower’s request, and Administrative
Agent shall be subrogated to any and all rights, security interests and liens
owned by any owner or Administrative Agent of such outstanding liens, security
interests, charges or encumbrances, however remote, irrespective of whether said
liens, security interests, charges or encumbrances are released, and all of the
same are recognized as valid and subsisting and are renewed and continued and
merged herein to secure the Secured Indebtedness, but the terms and provisions
of this Mortgage shall govern and control the manner and terms of enforcement of
the liens, security interests, charges and encumbrances to which Administrative
Agent is subrogated hereunder. It is expressly understood that, in consideration
of the payment of such indebtedness by Administrative Agent, Grantor hereby
waives and releases all demands and causes of action for offsets and payments in
connection with the said indebtedness. If all or any portion of the proceeds of
the Loan or of any other Secured Indebtedness has been advanced for the purpose
of paying the purchase price for all or a part of the Property, no vendor’s or
purchase money lien is waived; and Administrative Agent shall have, and is
hereby granted, a vendor’s or purchase money lien on the Property as cumulative
additional security for the Secured Indebtedness. Administrative Agent may
foreclose under this Mortgage or under the vendor’s or purchase money lien
without waiving the other or may foreclose under both.
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Exhibit
10.2
Section
6.10. Application of Payments to
Certain Indebtedness. If any part of the Secured Indebtedness
cannot be lawfully secured by this Mortgage or if any part of the Property
cannot be lawfully subject to the lien and security interest hereof to the full
extent of such Secured Indebtedness, then all payments made shall be applied on
said Secured Indebtedness first in discharge of that portion thereof which is
not secured by this Mortgage.
Section
6.11. Compliance with Usury
Laws. It is the intent of Grantor and Administrative Agent and
all other parties to the Loan Documents to conform to and contract in strict
compliance with applicable usury law from time to time in effect. All agreements
between Administrative Agent and Grantor (or any other party liable with respect
to any indebtedness under the Loan Documents) are hereby limited by the
provisions of this Section which shall override and control all such agreements,
whether now existing or hereafter arising. In no way, nor in any event or
contingency (including but not limited to prepayment, default, demand for
payment, or acceleration of the maturity of ‘any obligation), shall the interest
taken, reserved, contracted for, charged, chargeable, or received under this
Mortgage, the Loan Agreement, the Note or any other Loan Document or otherwise,
exceed the maximum nonusurious amount permitted by applicable law (the “Maximum
Amount”). If, from any possible construction of any document, interest would
otherwise be payable in excess of the Maximum Amount, any such construction
shall be subject to the provisions of this Section and such document shall ipso
facto be automatically reformed and the interest payable shall be automatically
reduced to the Maximum Amount, without the necessity of execution of any
amendment or new document. If Administrative Agent shall ever receive anything
of value which is characterized as interest under applicable law and which would
apart from this provision be in excess of the Maximum Amount, an amount equal to
the amount which would have been excessive interest shall, without penalty, be
applied to the reduction of the principal amount owing on the Secured
Indebtedness in the inverse order of its maturity and not to the payment of
interest, or refunded to Grantor or the other payor thereof if and to the extent
such amount which would have been excessive exceeds such unpaid principal. The
right to accelerate maturity of the Loan or any other Secured Indebtedness does
not include the right to accelerate any interest which has not otherwise accrued
on the date of such acceleration, and Administrative Agent does not intend to
charge or receive any unearned interest in the event of acceleration. All
interest paid or agreed to be paid to Administrative Agent shall, to the extent
permitted by applicable law, be amortized, prorated, allocated and spread
throughout the full stated term (including any renewal or extension) of such
indebtedness so that the amount of interest on account of such indebtedness does
not exceed the Maximum Amount. As used in this Section, the term “applicable
law” shall mean the laws of the State of Texas, or the federal laws of the
United States applicable to this transaction, whichever laws allow the greatest
interest, as such laws now exist or may be changed or amended or come into
effect in the future.
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Exhibit
10.2
Section
6.12. Release.
(a) Release
from Mortgage. If (i) all of the Secured Indebtedness be paid as the same
becomes due and payable and all of the covenants, warranties, undertakings and
agreements made in this Mortgage are kept and performed, and all Swap
Transactions and all other obligations under the Loan Documents, if any, of
Administrative Agent for further advances have been terminated, or (ii) Grantor
is entitled to a release of this Mortgage in accordance with the terms of the
Loan Agreement, then, and in that event only, all rights under this Mortgage
shall terminate (except to the extent expressly provided herein with respect to
indemnifications, representations and warranties and other rights which are to
continue following the release hereof) and the Property shall become wholly
clear of the liens, security interests, conveyances and assignments evidenced
hereby, and the Property shall be released by Administrative Agent in due form
at Grantor’s cost. Without limitation, all provisions herein for indemnity of
Administrative Agent or Trustee shall survive discharge of the Secured
Indebtedness, the termination of any and all Swap Transactions and any
foreclosure, release or termination of this Mortgage.
(b) Partial Release; No Release
in Default. Administrative Agent may, regardless of
consideration, cause the release of any part of the Property from the lien of
this Mortgage without in any manner affecting or impairing the lien or priority
of this Mortgage as to the remainder of the Property. No partial release shall
be sought, requested or required if any Default has occurred which has not been
cured.
(c) Release
Fee. Grantor agrees to pay reasonable fees, not to exceed the
maximum amounts legally permitted, for Trustee’s rendering of services in
connection with each partial or complete release of the Property from the lien
of this Mortgage.
Section
6.13. Notices. All
such notices, demands, requests, consents and other communications shall he
deemed sufficiently given or furnished if delivered by personal. delivery, by
courier, by registered or certified United States mail, postage prepaid, or by
facsimile (with, subject to Subsection 6.3.2 of the Loan Agreement, a
confirmatory duplicate copy sent by first class United States mail), addressed
to the party to whom directed or by (subject to Subsection 6.3.3 of the Loan
Agreement) electronic mail address to Grantor, at the addresses set forth at the
end of this Agreement or to Administrative Agent or Lenders at the addresses
specified for notices in the Loan Agreement (unless changed by similar notice in
writing given by the particular party whose address is to be changed). Any such
notice or communication shall be deemed to have been given and received either
at the time of personal delivery or, in the case of courier or mail, as of the
date of first attempted delivery at the address and in the manner provided
herein, or, in the case of facsimile, upon receipt; provided, however, that
service of a notice required by Texas Property Code Section 51.002, as amended,
shall be considered complete when the requirements of that statute are met.
Notwithstanding the foregoing, no notice of change of address shall be effective
except upon actual receipt. This Section shall not be construed in any way to
affect or impair any waiver of notice or demand provided in any Loan Document or
to require giving of notice or demand to or upon any person in any situation or
for any reason.
Section
6.14. Invalidity of Certain
Provisions. A determination that any provision of this
Mortgage is unenforceable or invalid shall not affect the enforceability or
validity of any other provision and the determination that the application of
any provision of this Mortgage to any person or circumstance is illegal or
unenforceable shall not affect the enforceability or validity of such provision
as it may apply to other persons or circumstances.
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FINANCING
STATEMENT –Mockingbird Second Lien (Behringer Harvard Mockingbird
Commons)
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Page 33
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Exhibit
10.2
Section
6.15. Gender; Titles;
Construction. Within this Mortgage, words of any gender shall
be held and construed to include any other gender, and words in the singular
number shall be held and construed to include the plural, unless the context
otherwise requires. Titles appearing at the beginning of any subdivisions hereof
are for convenience only, do not constitute any part of such subdivisions, and
shall be disregarded in construing the language contained in such subdivisions.
The use of the words “herein,” “hereof,” “hereunder” and other similar compounds
of the word “here” shall refer to this entire Mortgage and not to any particular
Article, Section, paragraph or provision. The term “person” and words importing
persons as used in this Mortgage shall include firms, associations, partnerships
(including limited partnerships), joint ventures, trusts, corporations, limited
liability companies and other legal entities, including public or governmental
bodies, agencies or instrumentalities, as well as natural persons.
Section 6.16.
Reporting
Compliance. Grantor agrees to comply with any and all
reporting requirements imposed upon Grantor, Grantor’s affiliates, Guarantor,
Guarantor’s affiliates with respect to the transaction evidenced by the Loan
Documents and secured by this Mortgage which are set forth in any law, statute,
ordinance, rule, regulation, order or determination of any governmental
authority, including but not limited to The International Investment Survey Act
of 1976, The Agricultural Foreign Investment Disclosure Act of 1978, The Foreign
Investment in Real Property Tax Act of 1980 and the Tax Reform Act of 1984 and
further agrees upon request of Administrative Agent to furnish Administrative
Agent with evidence of such compliance.
Section
6.17. Grantor. Unless
the context clearly indicates otherwise, as used in this Mortgage, “Grantor”
means the grantors named in Section 1.1 hereof or any of them. The obligations
of Grantor hereunder shall be joint and several. If any Grantor, or any
signatory who sig.’s on behalf of any Grantor, is a corporation, partnership or
other legal entity, Grantor and any such signatory, and the person or persons
signing for it, represent and warrant to Administrative Agent that this
instrument is executed, acknowledged and delivered by Grantor’s duly authorized
representatives. If Grantor is an individual, no power of attorney granted by
Grantor herein shall terminate on Grantor’s disability.
Section
6.18. Execution;
Recording. This Mortgage may be executed in several
counterparts, all of which are identical, and all of which counterparts together
shall constitute one and the same instrument. The date or dates reflected in the
acknowledgments hereto indicate the date or dates of actual execution of this
Mortgage, but such execution is as of the date shown on the first page hereof,
and for purposes of identification and reference the date of this Mortgage shall
be deemed to be the date reflected on the first page hereof. Grantor will cause
this Mortgage and all amendments and supplements thereto and substitutions
therefor and all financing statements and continuation statements relating
thereto to be recorded, filed, re-recorded and refiled in such manner and in
such places as Trustee or Administrative Agent shall reasonably request and will
pay all such recording, filing, re-recording and refiling taxes, fees and other
charges.
Section
6.19. Successors and
Assigns. The terms, provisions, covenants and conditions
hereof shall be binding upon Grantor, and the successors and assigns of Grantor,
and shall inure to the benefit of Trustee and Administrative Agent and shall
constitute covenants running with the Land. All references in this Mortgage to
Grantor shall be deemed to include all such heirs, devisees, representatives,
successors and assigns of Grantor.
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FINANCING
STATEMENT –Mockingbird Second Lien (Behringer Harvard Mockingbird
Commons)
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Page 34
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Exhibit
10.2
Section
6.20. No Partnership,
Etc. The relationship between Administrative Agent and Grantor
is solely that of lender and borrower. Administrative Agent has no fiduciary or
other special relationship with Grantor. Nothing contained in the Loan Documents
is intended to create any partnership, joint venture, association or special
relationship between Grantor and Administrative Agent or in any way make
Administrative Agent a co-principal with Grantor with reference to the Property.
All agreed contractual duties between or among Administrative Agent, Trustee and
Grantor are set forth herein and in the other Loan Documents and any additional
implied covenants or duties are hereby disclaimed. Any inferences to the
contrary of any of the foregoing are hereby expressly negated.
Section
6.21. Substitution of
Trustee. Trustee may resign by an instrument in writing
addressed to Administrative Agent or Trustee may be removed at any time with or
without cause by an instrument in writing executed by Administrative Agent. In
case of the resignation, removal or disqualification of Trustee, or if for any
reason Administrative Agent shall deem it desirable to appoint a substitute or
successor trustee to act instead of the herein-named trustee or any substitute
or successor trustee, then Administrative Agent shall have the right and is
hereby authorized and empowered to appoint a successor trustee(s) or a
substitute trustee(s) without any formality other than appointment and
designation in writing executed by Administrative Agent and the authority hereby
conferred shall extend to the appointment of other successor and substitute
trustees successively until the Secured Indebtedness has been paid in full or
until the Property is fully and finally sold hereunder. If Administrative Agent
is a corporation or association and such appointment is executed on its behalf
by an officer of such corporation or association, such appointment shall be
conclusively presumed to be executed with authority and shall be valid and
sufficient without proof of any action by the board of directors or any superior
officer of the corporation or association. Upon the making of any such
appointment and designation, all of the estate and title of Trustee in the
Property shall vest in the named successor or substitute Trustee(s) and it shall
thereupon succeed to, and shall hold, possess and execute, all of the rights,
powers, privileges, immunities and duties herein conferred upon Trustee. All
references herein to “Trustee” shall be deemed to refer to Trustee (including
any successor(s) or substitute(s) appointed and designated as herein provided)
from time to time acting hereunder.
Section
6.22. No Liability of
Trustee. Trustee shall not be liable for any error of judgment
or act done by Trustee in good faith, or be otherwise responsible or accountable
under any circumstances whatsoever (including Trustee’s negligence), except for
Trustee’s gross negligence or willful misconduct. 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 it hereunder, believed by it in good
faith to be genuine. 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 it hereunder. Grantor hereby ratifies and
confirms any and all acts which the herein-named Trustee or its successor or
successors, substitute or substitutes, in this trust, shall do lawfully by
virtue hereof. Grantor will reimburse Trustee for, and save Trustee harmless
against, any and all liability and expenses which may be incurred by Trustee in
the performance of its duties. The foregoing indemnity shall not terminate upon
discharge of the Secured Indebtedness or foreclosure, release or other
termination of this Mortgage.
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FINANCING
STATEMENT –Mockingbird Second Lien (Behringer Harvard Mockingbird
Commons)
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Page 35
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Exhibit
10.2
Section
6.23. Applicable
Law. THIS MORTGAGE, AND ITS VALIDITY, ENFORCEMENT AND
INTERPRETATION, SHALL BE GOVERNED BY AND CONSTRUED, INTERPRETED AND ENFORCED IN
ACCORDANCE WITH AND PURSUANT TO THE LAWS OF THE STATE OF TEXAS (WITHOUT REGARD
TO ANY CONFLICT OF LAWS PRINCIPLES) AND APPLICABLE UNITED STATES FEDERAL
LAW.
Section
6.24. No Merger of
Estates. So long as any part of the Secured Indebtedness
secured hereby remain unpaid and unperformed or undischarged, the fee and
leasehold estates to the Property shall not merge but rather shall remain
separate and distinct, notwithstanding the union of such estates either in
Grantor, Administrative Agent, any lessee, or any third party purchaser or
otherwise.
Section
6.25. Entire
Agreement. The Loan Documents constitute the entire
understanding and agreement between Grantor and Administrative Agent with
respect to the transactions arising in connection with the Secured Indebtedness
and supersede all prior written or oral understandings and agreements between
Grantor and Administrative Agent with respect to the matters addressed in the
Loan Documents. Grantor hereby acknowledges that, except as incorporated in
writing in the Loan Documents, there are not, and were not, and no persons are
or were authorized by Administrative Agent to make, any representations,
understandings, stipulations, agreements or promises, oral or written, with
respect to the matters addressed in the Loan Documents.
THE
WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND 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.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
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FINANCING
STATEMENT –Mockingbird Second Lien (Behringer Harvard Mockingbird
Commons)
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Page 36
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Exhibit
10.2
IN
WITNESS WHEREOF, Grantor has executed this instrument is executed by Grantor as
of the date first written on page 1 hereof.
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GRANTOR:
BEHRINGER
HARVARD MOCKINGBIRD
COMMONS,
LLC,
a
Delaware limited liability company
|
||
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By:
|
BEHRINGER
HARVARD MOCKINGBIRD
|
|
|
COMMONS
GP, LLC,
|
||
|
a
Texas limited liability company, its Manager
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||
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By:
|
||
|
Gerald
J. Reihsen, III
|
||
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Executive
Vice President – Corporate
|
||
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Development
& Legal and
Secretary
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||
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STATE
OF TEXAS
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§
|
|
§
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|
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COUNTY
OF DALLAS
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§
|
This
instrument was acknowledged before me on the day of ______________________,
2009, by Gerald J. Reihsen, III, Executive Vice President-Corporate Development
& Legal and Secretary of Behringer Harvard Mockingbird Commons GP, LLC, a
Texas limited liability company, on behalf of said limited liability company, in
its capacity as the General Partner of Behringer Harvard Mockingbird Commons,
LLC, a Delaware 1.n led liability company, on behalf of said limited liability
company.
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________________________________________
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Printed
Name:___________________________
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Notary
Public – State of
Texas
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FINANCING
STATEMENT –Mockingbird Second Lien (Behringer Harvard Mockingbird
Commons)
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Page
37
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Exhibit
10.2
EXHIBIT
A
LAND
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 16,
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: Loft 201, Loft 205, Loft 304 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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FINANCING
STATEMENT –Mockingbird Second Lien (Behringer Harvard Mockingbird
Commons)
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Exhibit
Page
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