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-10.2 - Behringer Harvard Short-Term Liquidating Trust | v170087_ex10-2.htm |
| EX-10.1 - Behringer Harvard Short-Term Liquidating Trust | v170087_ex10-1.htm |
Exhibit
10.4
DEED OF TRUST, ASSIGNMENT OF
RENTS AND LEASES,
SECURITY AGREEMENT, FIXTURE
FILING AND FINANCING STATEMENT
NOTICE OF
CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE
ANY OR ALL OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED
FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER’S
LICENSE NUMBER.
(This
Document Serves as a Fixture Filing under Section 9.502 of the Texas Business
and Commercial Code)
Grantor’s
Organizational Identification Number: 800471711
THIS DEED OF TRUST, ASSIGNMENT OF
RENTS AND LEASES, SECURITY AGREEMENT, FIXTURE FILING AND FINANCING
STATEMENT (this “Deed of Trust”) is made this 21st day of
December, 2009, by Grantor, in favor of Trustee for the benefit of
Administrative Agent, for itself and on behalf of the other lenders
(collectively, the “Lenders”) now or hereafter made a party to the Credit
Agreement (defined below).
ARTICLE
1
Definitions; Granting
Clauses; Secured Indebtedness
1.1. Principal Secured.
This Deed of Trust secures the prompt payment and performance by Grantor of the
Guaranteed Obligations and all of its duties and obligation arising under the
Guaranty.
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:
“Administrative Agent”
means Bank of America, N.A., a national banking association, whose address is
901 Main Street, 20th Floor,
Dallas, TX 75202 Attention: Real Estate Loan Administration, and its successors
and assigns and any. successor “Administrative Agent” appointed pursuant to the
terms of the Credit Agreement.
“Borrower” means
Behringer Harvard Mockingbird Commons, LLC, a Delaware limited liability
company.
“Credit Agreement”
means that certain Loan Agreement dated of September 6, 2007, executed by
Borrower, Administrative Agent, the Issuing Bank (as defined therein), and the
other Lenders, and certain other Loan Parties now or hereafter made a party
thereto, as the same may be hereafter modified, amended, supplemented and
restated, in whole or in part. All capitalized terms not otherwise
defined herein shall have the meaning ascribed to them in the Credit
Agreement.
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 1
Exhibit
10.4
“Grantor” means
Behringer Harvard 250/290 Carpenter LP, a Texas limited partnership, whose
address is 15601 Dallas Parkway, Suite 600, Addison, TX 75001 and its permitted
successors and assigns.
“Guaranty” means that
certain Guaranty Agreement, dated of even date herewith, executed by Grantor for
the benefit of Administrative Agent and the other Lenders, as the same maybe
hereafter modified, amended, supplemented and restated, in whole or in
part.
“Guaranteed
Obligations” shall have the meaning assigned to such term in the
Guaranty.
“Loan” shall mean a
loan and extension of credit in the maximum principal amount of $41,246,440.00
maturing on December 21, 2012 (unless extended in accordance with the Credit
Agreement) as more particularly described in the Credit Agreement.
“Trustee” means PRLAP,
Inc., 901 Main Street, Dallas, Texas 75202-3714, or any substitute or successor
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.
(b) Any
term used or defined in the UCC, as in effect from time to time, and not defined
in this Deed of Trust has the meaning given to the term in Chapter 9 of the UCC,
as in effect from time to time, when used in this Deed of Trust. However, if a
term is defined in Chapter 9 of the UCC differently than in another title of the
UCC, the term has the meaning specified in Chapter 9.
1.3. Granting Clause. In
consideration of the provisions of this Deed of Trust 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, Grantor does hereby GRANT,
BARGAIN, SELL, CONVEY, TRANSFER, ASSIGN and SET OVER to Trustee, IN TRUST with
the power of sale for the benefit and security of Administrative Agent, on
behalf of the Lenders and Issuing Bank, with GENERAL WARRANTY, the
following:
(a) 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”);
and
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 2
Exhibit
10.4
(ii) 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, ditches and ditch rights, reservoirs, reservoir
rights and storage rights, wells and well rights, well permits, springs and
spring rights, groundwater rights (whether tributary, nontributary or
not-nontributary), water contracts, water allotments, water taps, stock
certificates, shares in ditch or reservoir or water companies, and all other
rights of any kind or nature in or to the use of water, whether or not
adjudicated, which are appurtenant to, historically used on or in connection
with, or located on or under the Land, (collectively, “Water Rights”),
together with any and all associated structures and facilities for the
diversion, carriage, transmission, conveyance, measurement, storage or use of
said Water Rights, and any and all easements, rights of way, fixtures, personal
property, contract rights, licenses, permits or decrees associated with or used
in connection with any such Water Rights or which may be necessary for the
development, operation or maintenance of such Water Rights; and (5) timber,
crops and mineral interests on or pertaining 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, and 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);
(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), 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 or
deposit account 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 (as hereinafter defined), all rights to the payment
of money 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 which are in the possession of Grantor or in which
Grantor can otherwise grant a security interest; and
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 3
Exhibit
10.4
(d) 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;
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 Administrative Agent and to its successors and assigns, in
trust, in fee simple forever, subject to the terms, provisions and conditions
herein set forth, to secure the obligations of Grantor under the Guaranty (as
hereinafter defined) and all other indebtedness and matters defined in Section 1.5 below as
Secured Indebtedness.
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 4
Exhibit
10.4
1.4. Security Interest.
Grantor hereby grants to Administrative Agent for the benefit of itself and the
Lenders 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 Grantor under the Guaranty and all other indebtedness
and matters defined as Secured Indebtedness in Section 1.5 of this
Deed of Trust. 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.
1.5. Secured Indebtedness, Loan
Documents, Other Obligations. This Deed of Trust is made to secure and
enforce the payment and performance of the following 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 duties and obligations of Grantor arising under the Guaranty (and any
other guaranty given in substitution therefore or in modification, supplement,
increase, renewal or extension thereof, in whole or in party); (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 Grantor to
Administrative Agent or Lenders now or hereafter incurred or arising pursuant to
the provisions of the Guaranty; and (c) the obligations of Borrower under any
Master Agreement relating to a Swap Transaction. The term “Swap Transaction”
means any agreement, whether or not in writing, 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, in each case relating to
indebtedness under the Loan Documents 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 Administrative Agent or another
lender (or its affiliates) and a Loan Party (or its affiliates), 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.
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 5
Exhibit
10.4
ARTICLE
2
Representations, Warranties
and Covenants
2.1. Grantor
represents, warrants, and covenants as follows:
(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 Permitted Encumbrances (as defined in
that certain Credit Agreement dated September 1, 2005, by and among Behringer
Harvard Short-Term Opportunity Fund I LP, Grantor, and Bank of America, as
administrative agent)). Grantor, and Grantor’s successors and assigns, will
warrant generally and forever defend title to the Property, subject as
aforesaid, to Administrative Agent, against the claims and demands of all
persons claiming or to claim the same or any part thereof. Grantor will
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. If any right or interest of Administrative Agent and
Lenders 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
their discretion may be proper for the defense of any such legal proceedings or
the protection of such right or interest of Administrative Agent and Lenders,
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 reasonably 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;
Insurance. 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, as the same become due and payable, including
but not limited to all real estate taxes assessed against the Property
(collectively, “Impositions”) or any
part thereof, and shall deliver promptly to Administrative Agent such evidence
of the payment thereof as Administrative Agent may require. Grantor shall obtain
and maintain at Grantor’s sole expense: (1) mortgagee title insurance issued to
Administrative Agent covering the Property as required by Administrative Agent
without exception for mechanics’ liens; and (2) insurance required by the terms
of the Credit Agreement.
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 6
Exhibit
10.4
(d) 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 Deed of Trust, 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. 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
Deed of Trust and all Leases (hereinafter defined); (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
(hereinafter defined) 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 (hereinafter defined), if collected
by or for the holder 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 immediately after
the occurrence of any such default or commencement; and (5) neither the holder
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.
(e) Further Assurances.
Grantor will, promptly on reasonable request of Administrative Agent, (i)
correct any defect or error which may be discovered in the contents, execution
or acknowledgment of this Deed of Trust or any other Loan Document; (ii)
execute, acknowledge, deliver, procure and record and/or file such further
documents (including, without limitation, further mortgages, deeds of trust,
security agreements, and assignments of rents or leases) and do such further
acts as may be necessary, desirable or proper to carry out more effectively the
purposes of this Deed of Trust and the other Loan Documents, to more 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 reasonably determined to be advisable by Administrative Agent to
protect the lien or the security interest hereunder against the rights or
interests of third persons; and (iii) 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, the Issuing Bank and
Lenders to comply with the requirements or requests of any agency having
jurisdiction over Administrative Agent or Lenders or any examiners of such
agencies with respect to the indebtedness secured hereby, Grantor or the
Property. Grantor shall pay all reasonable 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 Deed of
Trust.
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 7
Exhibit
10.4
(f) Indemnification.
(i) Grantor
will indemnify and hold harmless Administrative Agent, and Lenders from and
against, and reimburse them on demand for, any and all Indemnified Matters
(hereinafter defined). For purposes of this paragraph (f), the terms
“Administrative Agent”, and “Lender” shall include. Administrative Agent and
Lenders respectively, and any persons owned or controlled by, owning or
controlling, or under common control or affiliated with Administrative Agent,
the Issuing Bank or Lenders respectively and the directors, officers, partners,
employees, attorneys, agents and representatives of each of them. Any amount to
be paid under this paragraph (f) by Grantor to Administrative Agent and/or
Lenders shall be a demand obligation owing by Grantor (which Grantor hereby
promises to pay) to Administrative Agent and Lenders pursuant to this Deed of
Trust. Nothing in this paragraph, elsewhere in this Deed of Trust or in any
other Loan Document shall limit or impair any rights or remedies of
Administrative Agent and/or Lenders (including without limitation any rights of
contribution or indemnification) against Grantor or any other person under any
other provision of this Deed of Trust, any other Loan Document, any other
agreement or any applicable Legal Requirement.
As used
herein, the term “Indemnified Matters”
means any and all claims, demands, liabilities (including strict liability),
losses, 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 any Lender 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 Deed of Trust
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 Deed of Trust or in
any other Loan Document, any default as defined herein, any claim under or with
respect to any Lease (hereinafter defined). 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 hereby (other than those indemnifications
or obligations which, by the terms of this Deed of Trust, expressly survive
repayment of the indebtedness or release of this Deed of Trust) have been paid
and performed in full or collateralized as provided in the Credit Agreement and
this Deed of Trust has been released, or (ii) the date on which the lien of this
Deed of Trust is fully and finally foreclosed (and all applicable redemption
periods have expired) or a conveyance by deed in lieu of such foreclosure is
fully and finally effective, and possession of the Property has been given to
the purchaser or grantee free of occupancy and claims to occupancy by Grantor
and Grantor’s 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 rejected, dismissed or
withdrawn with prejudice. The indemnities in this paragraph (f) shall not
terminate upon the Release Date or upon the release, foreclosure or other
termination of this Deed of Trust but will survive the Release Date, foreclosure
of this Deed of Trust or conveyance in lieu of foreclosure, the repayment of the
Secured Indebtedness, the termination of any and all Swap Transactions (as
defined in the Credit Agreement), the discharge and release of this Deed of
Trust and the other Loan Documents, any bankruptcy or other debtor relief
proceeding, and any other event whatsoever.
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 8
Exhibit
10.4
(g) Taxes on Deed of
Trust. Grantor will promptly pay all income, franchise and
other taxes owing by Grantor and any stamp, documentary, recordation and
transfer taxes or other taxes (unless such payment by Grantor is prohibited by
law) which may be required to be paid with respect to this Deed of Trust 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 Administrative Agent or Lenders, the Property or this Deed of
Trust deducting from the value of property for the purpose of taxation any lien
or security interest thereon, or imposing upon Administrative Agent or 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 Deed of Trust or
the Secured Indebtedness or Administrative Agent or Lenders, then, and in any
such event, Grantor, upon demand by Administrative Agent, shall pay such taxes,
assessments, charges or liens, or reimburse Administrative Agent and 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,
Administrative Agent on behalf of Lenders may elect, by notice in writing given
to Grantor, to declare all of the Secured Indebtedness to be and become due and
payable one hundred twenty (120) days from the giving of such
notice.
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 9
Exhibit
10.4
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 Deed of Trust
Grantor is required to perform or take, or to pay any money which under this
Deed of Trust Grantor is required to pay, or if Borrower fails to take any
action or pay any money that it is required to take or pay under the Loan
Documents and whether or not the failure then constitutes a default hereunder or
thereunder, and whether or not there has occurred any default or defaults
hereunder or the Secured Indebtedness has been accelerated, Administrative
Agent, in Grantor’s name or its own name on behalf of Lenders, 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 indebtedness secured hereby, 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 Section 2.2 shall
bear interest, from the date such amount becomes due until paid, whether before
or after a sale as described in Section 5.2 at a rate
per annum equal to the Past Due Rate but never in excess of the maximum
nonusurious amount permitted by applicable law, 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
indebtedness secured hereby. 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.
2.3. Absence of Obligations of
Administrative Agent with Respect to Property. Notwithstanding anything
in this Deed of Trust 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) neither Administrative Agent nor any Lender
assumes or 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 neither Administrative Agent nor any Lender shall have any 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.
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 10
Exhibit
10.4
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 Deed of Trust. 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 Deed of Trust.
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, have done in the past 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.
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 11
Exhibit
10.4
ARTICLE
3
Assignment of Rents and
Leases
3.1. Assignment. As
additional security for the indebtedness secured hereby, upon the occurrence and
during the continuation of a Default hereunder, Administrative Agent shall have
the right, power and privilege (but shall be under no duty) to demand possession
of the Rents, which demand shall to the fullest extent permitted by applicable
law be sufficient action by Administrative Agent to entitle Administrative Agent
on behalf of Lenders to immediate and direct payment of the Rents (including
delivery to Administrative Agent of Rents collected for the period in which the
demand occurs and for any subsequent period), for application as provided in
this Deed of Trust, all without the necessity of any further action by
Administrative Agent, including, without limitation, any action to obtain
possession of the Land, the Improvements or any other portion of the Property or
any action for the appointment of a receiver. Grantor hereby authorizes and
directs the tenants under the Leases to pay Rents to Administrative Agent upon
written demand by Administrative Agent, without further consent of Grantor,
without any obligation of such tenants to determine whether a Default has in
fact occurred and regardless of whether Administrative Agent has taken
possession of any portion of the Property, and the tenants may rely upon any
written statement delivered by Administrative Agent to the tenants. Any such
payments to Administrative Agent shall constitute payments to Grantor under the
Leases, and Grantor hereby irrevocably appoints Administrative Agent as its
attorney-in-fact to do all things, after and during the continuation of a
Default, which Grantor might otherwise do with respect to the Property and the
Leases thereon, including, without limitation, (i) collecting Rents with or
without suit and applying the same, less expenses of collection, to any of the
obligations secured hereunder or under the Loan Documents or to expenses of
operating and maintaining the Property (including reasonable reserves for
anticipated expenses), at the option of the Administrative Agent, all in such
manner as may be determined by Administrative Agent, (ii) leasing, in the name
of Grantor, the whole or any part of the Property which may become vacant, and
(iii) employing agents therefor and paying such agents reasonable compensation
for their services. The curing of such Default, unless other Defaults also then
exist, shall entitle Grantor to recover its aforesaid license to do any such
things which Grantor might otherwise do with respect to the Property and the
Leases thereon and to again collect such Rents. The powers and rights granted in
this paragraph shall be in addition to the other remedies herein provided for
upon the occurrence of a Default and may be exercised independently of or
concurrently with any of said remedies. Nothing in the foregoing shall be
construed to impose any obligation upon Administrative Agent or Lenders to
exercise any power or right granted in this paragraph or to assume any liability
under any Lease of any part of the Property and no liability shall attach to
Administrative Agent or Lenders for failure or inability to collect any Rents
under any such Lease. The assignment contained in this Section shall become null
and void upon the release of this Deed of Trust. As used herein: (i) “Lease” means each
existing or future lease, sublease (to the extent of Grantor’s rights
thereunder) or other agreement under the terms of which any person has or
acquires any right to occupy or use the Property, or any part thereof, or
interest therein, and each existing or future guaranty of payment or performance
thereunder, and all extensions, renewals, modifications and replacements of each
such lease, sublease, agreement or guaranty; and (ii) “Rents” means all of
the rents, revenue, income, profits and proceeds derived and to be derived from
the Property or arising from the use or enjoyment of any portion thereof or from
any Lease, including but not limited to the proceeds from any negotiated lease
termination or buyout of such Lease, liquidated damages following default under
any such Lease, all proceeds payable under any policy of insurance covering loss
of rents resulting from untenantability caused by damage to any part of the
Property, all of Grantor’s rights to recover monetary amounts from any tenant in
bankruptcy including, without limitation, rights of recovery for use and
occupancy and damage claims arising out of Lease defaults, including rejections,
under any applicable Debtor Relief Law (hereinafter defined), together with any
sums of money that may now or at any time hereafter be or become due and payable
to Grantor by virtue of any and all royalties, overriding royalties, bonuses,
delay rentals and any other amount of any kind or character arising under any
and all present and all future oil, gas, mineral and mining leases covering the
Property or any part thereof, and all proceeds and other amounts paid or owing
to Grantor under or pursuant to any and all contracts and bonds relating to the
construction or renovation of the Property.
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 12
Exhibit
10.4
3.2. Covenants, Representations
and Warranties Concerning Leases and Rents. Grantor covenants, represents
and warrants that: (a) Grantor has good title to, and is the owner of the entire
landlord’s interest in, the Leases and Rents hereby assigned and authority to
assign them; (b) all Leases are valid and enforceable and in full force and
effect; (c) neither Grantor nor, to Grantor’s knowledge, any tenant in the
Property is in default under its Lease (and no event has occurred which with the
passage of time or notice or both would result in a default under its Lease) or
is the subject of any bankruptcy, insolvency or similar proceeding; (d) unless
otherwise stated in a Permitted Encumbrance, no Rents or Leases have been or
will be assigned, mortgaged, pledged or otherwise encumbered and no other person
has or will acquire any right, title or interest in such Rents or Leases; (e) no
Rents have been waived, released, discounted, set off or compromised; (f) except
as stated in the Leases, Grantor has not received any funds or deposits from any
tenant for which credit has not already been made on account of accrued Rents;
(g) Grantor will not, without the prior written consent of Administrative Agent,
terminate or consent to the cancellation or surrender of any Lease having an
unexpired term of one (1) year or more, unless permitted by the terms of such
Lease; (h) Grantor will not execute any Lease except in accordance with the Loan
Documents and for actual occupancy by the tenant thereunder; (i) Grantor shall
give prompt notice to Administrative Agent, as soon as Grantor first obtains
notice, of any claim, or the commencement of any action, by any tenant or
subtenant under or with respect to a Lease regarding any claimed damage,
default, diminution of or offset against Rent, cancellation of the Lease, or
constructive eviction, and Grantor shall defend, at Grantor’s expense, any
proceeding pertaining to any Lease, including, if Administrative Agent so
requests, any such proceeding to which Administrative Agent or any Lender is a
party; (j) there shall be no merger of the leasehold estates created by the
Leases, with the fee estate of the Land without the prior written consent of
Administrative Agent; and (k) Administrative Agent may at any time and from time
to time by specific written instrument intended for the purpose, unilaterally
subordinate the lien of this Deed of Trust to any Lease, without joinder or
consent of, or notice to, Grantor, any tenant or any other person, and notice is
hereby given to each tenant under a Lease of such right to subordinate. No such
subordination shall constitute a subordination to any lien or other encumbrance,
whenever arising, or improve the right of any junior lien Administrative Agent;
and nothing herein shall be construed as subordinating this Deed of Trust to any
Lease.
3.3. Estoppel
Certificates. All Leases hereafter executed by Grantor in respect of the
Property shall require the tenant to execute and deliver to Administrative Agent
an estoppel certificate in form and substance reasonably acceptable to
Administrative Agent within ten (10) days after notice from the Administrative
Agent.
3.4. No Liability of
Administrative Agent. Administrative Agent’s acceptance of this
assignment shall not be deemed to constitute Administrative Agent or any Lender
a “mortgagee in possession,” nor obligate Administrative Agent or any Lender to
appear in or defend any proceeding relating to any Lease or to the Property, or
to take any action hereunder, expend any money, incur any expenses, or perform
any obligation or liability under any Lease, or assume any obligation for any
deposit delivered to Grantor by any tenant and not as such delivered to and
accepted by Administrative Agent. Administrative Agent shall not be liable for
any injury or damage to person or property in or about the Property, or for
Administrative Agent’s failure to collect or to exercise diligence in collecting
Rents, but shall be accountable only for Rents that it shall actually receive.
Neither the assignment of Leases and Rents nor enforcement of Administrative
Agent’s and Lenders’ rights regarding Leases and Rents (including collection of
Rents) nor possession of the Property by Administrative Agent nor Administrative
Agent’s consent to or approval of any Lease (nor all of the same), shall render
Administrative Agent liable on any obligation under or with respect to any Lease
or constitute affirmation of, or any subordination to, any Lease, occupancy, use
or option. If Administrative Agent or any Lender seeks or obtains any judicial
relief regarding Rents or Leases, the same shall in no way prevent the
concurrent or subsequent employment of any other appropriate rights or remedies
nor shall same constitute an election of judicial relief for any foreclosure or
any other purpose. Neither Administrative Agent nor any Lender has nor assumes
any obligations as lessor or landlord with respect to any Lease. The rights of
Administrative Agent and Lenders under this Article 3 shall be
cumulative of all other rights of Administrative Agent and Lenders under the
Loan Documents or otherwise.
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 13
Exhibit
10.4
ARTICLE
4
Default
4.1. Events of Default.
The occurrence of any one of the following shall be a default under this Deed of
Trust (“default” or “Default”):
(a) Nonperformance of
Covenants. Any covenant, agreement or condition herein, in the Guaranty,
including any covenant to pay the Secured Indebtedness, 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 the
Guaranty.
(b) Default under the
Guaranty. The occurrence of a Default (as such term is defined in the
Guaranty) by Grantor under the Guaranty.
(c) Transfer of the
Property. Any sale, conveyance, assignment, pledge, or transfer of all or
any part of the Property or any interest therein, voluntarily or involuntarily,
whether by operation of law or otherwise, except sales or transfers of items of
the Accessories which have become obsolete or worn beyond practical use and
which have been replaced by adequate substitutes, owned by Grantor, having a
value equal to or greater than the replaced items when new. Administrative Agent
may, in its sole discretion, waive a default under this paragraph, but it shall
have no obligation to do so, and any waiver may be conditioned upon such one or
more of the following (if any) which Administrative Agent may require: the
grantee’s integrity, reputation, character, creditworthiness and management
ability being satisfactory to Administrative Agent in its sole judgment and
grantee executing, prior to such sale or transfer, a written assumption
agreement containing such terms as Administrative Agent may require, a principal
paydown on the Loan, an increase in the rate of interest payable on the Loan, a
transfer fee, a modification of the term of the Loan, and any other modification
of the Loan Documents which Administrative Agent may require. NOTICE - THE DEBT SECURED HEREBY IS
SUBJECT TO CALL IN FULL AND ANY AND ALL SWAP TRANSACTIONS ARE SUBJECT TO
TERMINATION, OR THE TERMS THEREOF BEING MODIFIED IN THE EVENT OF SALE OR
CONVEYANCE OF THE PROPERTY CONVEYED.
(d) Grant of Easement,
Etc. Without the prior written consent of Administrative Agent, Grantor
grants any easement or dedication, files any plat, condominium declaration, or
restriction, or otherwise encumbers the Property, or seeks or permits any zoning
reclassification or variance, unless such action is expressly permitted by the
Loan Documents or does not affect the Property.
(e) Abandonment. Grantor
abandons any of the Property.
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 14
Exhibit
10.4
(f) Default Under Other
Lien. A default or event of default occurs under any lien, security
interest or assignment covering the Property or any part thereof (whether or not
Administrative Agent has consented, and without hereby implying Administrative
Agent’s consent, to any such lien, security interest or assignment not created
hereunder), or the holder of any such lien, security interest or assignment
declares a default or institutes foreclosure or other proceedings for the
enforcement of its remedies thereunder.
(g) Destruction. The
Property is so demolished, destroyed or damaged that, in the reasonable opinion
of Administrative Agent, it cannot be restored or rebuilt with available funds
to a profitable condition within a reasonable period of time and in any event,
prior to the final maturity date of the Loan.
(h) Condemnation. (i) Any
governmental authority shall require, or commence any proceeding for, the
demolition of any building or structure comprising a material part of the
Premises, or (ii) there is commenced any proceeding to condemn or otherwise take
pursuant to the power of eminent domain, or a contract for sale or a conveyance
in lieu of such a taking is executed which provides for the transfer of, a
material portion of the Premises, including but not limited to the taking (or
transfer in lieu thereof) of any portion which would result in the blockage or
substantial impairment of access or utility service to the Improvements or which
would cause the Premises to fail to comply, in all material respects, with any
Legal Requirement.
4.2. Notice and Cure. If
any provision of this Deed of Trust 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 or Lenders, 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.
ARTICLE
5
Remedies
5.1. Certain Remedies. If
a 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):
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 15
Exhibit
10.4
(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. Without limitation of the foregoing, upon the
occurrence and during the continuation of a default caused by any of the events
or circumstances described in clauses (A), (C) or (D) of subparagraph (i) of
paragraph (e) of Section 4.1 of the Credit Agreement, all of the Secured
Indebtedness shall thereupon be immediately due and payable, without
presentment, demand, protest, notice of protest, declaration or notice of
acceleration or intention to accelerate, or any other notice, declaration or act
of any kind, all of which are hereby expressly waived by Grantor.
(b) Enforcement of Assignment of
Rents. In addition to the rights of Administrative Agent under Article 3
hereof, prior or subsequent to taking possession of any portion of the Property
or taking any action with respect to such possession, Administrative Agent may:
(1) collect and/or sue for the Rents in Administrative Agent’s own name, give
receipts and releases therefor, and after deducting all expenses of collection,
including attorneys’ fees and expenses, apply the net proceeds thereof to the
Secured Indebtedness in such manner and order as Administrative Agent may elect
and/or to the operation and management of the Property, including the payment of
reasonable management, brokerage and attorney’s fees and expenses; and (2)
require Grantor to transfer all security deposits and records thereof to
Administrative Agent together with original counterparts of the
Leases.
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 16
Exhibit
10.4
(c) Foreclosure. Upon the
occurrence and during the continuation of a 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 ranted, 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 Deed of Trust 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
be 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 be 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.
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 17
Exhibit
10.4
(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: (1) 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 ten (10) 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 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 take 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
expenses 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 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, Administrative Agent shall
have no liability or responsibility to Grantor for such loss if the sale is
conducted in a commercially reasonable manner.
(e) Lawsuits.
Administrative Agent may proceed by a suit or suits in equity or at law, whether
for collection of the indebtedness secured hereby, 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.
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 18
Exhibit
10.4
(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 Deed of Trust. 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, neither Administrative Agent nor
any Lender shall 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 or any Lender in managing the Property unless such loss is
caused by the willful misconduct and 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 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 by ex parte
application, without notice, the right to such notice being expressly waived,
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 Deed of Trust. Nothing herein is to be construed to deprive
Administrative Agent on behalf of Lenders of any other right, remedy or
privilege it may have under the law to have a receiver appointed. Any money
advanced by Administrative Agent on behalf of Lenders in connection with any
such receivership shall be a demand obligation (which obligation Grantor hereby
promises to pay) owing by Borrower to Administrative Agent on behalf of Lenders
pursuant to this Deed of Trust.
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 19
Exhibit
10.4
(h) Termination of Commitment to
Lend. Administrative Agent may terminate any commitment or obligation to
lend or disburse funds under any Loan Document or enter into any other credit
arrangement to or for the benefit of Borrower.
(i)
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 at law
or in equity or otherwise.
5.2. Proceeds of
Foreclosure. The proceeds of any sale 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, FIRST, to the payment
of all necessary costs and expenses incident to such foreclosure sale, including
but not limited to all reasonable 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, insurance fees, costs of repairs, maintenance,
inspection and testing fees, receivers and management fees, leasing and sales
commissions, advertising costs and expenses, taxes and assessments, surveys,
engineering studies and reports, engineering fees and expenses, soils tests,
space planning costs and expenses, contractors fees, all other costs incurred by
Administrative Agent to maintain, preserve and protect the Property, all court
costs and charges of every character 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 Note, cash collateral for any
LC outstanding under the Credit Agreement, and the amounts due and owing to
Administrative Agent and/or Lenders under this Deed of Trust and the amounts due
and owing to Administrative Agent (or its affiliates) under any Swap Transaction
or LC Agreement, the order and manner of application to the items in this clause
FIRST (all with
Interest at the rate per annum provided in the Loan Documents) to be in
Administrative Agent’s sole discretion; and SECOND, the
remainder, if any there shall be, shall be paid to Grantor, or to Grantor’s
heirs, devisees, representatives, successors or assigns, or such other persons
(including the holder 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.
5.3. Administrative Agent as
Purchaser. Administrative Agent for the ratable benefit of Lenders 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 for the ratable benefit of Lenders shall have the right to
credit upon the amount of Administrative Agent’s successful bid, to the extent
necessary to satisfy such bid, all or any part of the Secured Indebtedness in
such manner and order as Administrative Agent may elect.
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 20
Exhibit
10.4
5.4. Foreclosure as to Matured
Debt. Upon the occurrence and during the continuation of a default,
Administrative Agent 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 be 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 Deed of Trust 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 Administrative Agent 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.
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 and Lenders 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.
5.6. Discretion as to
Security. Administrative Agent on behalf of Lenders may resort to any
security given by this Deed of Trust 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 Deed of
Trust.
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, 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 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 and Lenders under the terms of this Deed of Trust 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 and
Lenders under the terms of this Deed of Trust 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, including Chapter 34 of the Texas Business and Commerce Code, 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.
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 21
Exhibit
10.4
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 heirs, devisees, representatives, or
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 Deed of Trust (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, 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. 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.
5.9. Effective as Deed of
Trust. This instrument shall be effective as a mortgage as well as a Deed
of Trust and upon the occurrence and during the continuation of a 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 Note and/or any other Secured
Indebtedness, and for the foreclosure of this Deed of Trust. It is agreed that
if Administrative Agent should institute a suit for the collection of the Note
or any other Secured Indebtedness and for the foreclosure of this Deed of Trust,
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 Deed of
Trust.
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 22
Exhibit
10.4
ARTICLE
6
Miscellaneous
6.1. Scope of Deed of
Trust. This Deed of Trust 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.
6.2. Effective as a Financing
Statement. This Deed of Trust 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 Deed
of Trust shall also be effective as a financing statement covering as-extracted
collateral (including oil and gas), timber, accounts and general intangibles
under the UCC, as, in effect from time to time, and the Uniform Commercial Code,
as in effect from time to time, 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. This Deed of
Trust 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 at the
end of this Deed of Trust. A carbon, photographic or other reproduction of this
Deed of Trust or of any financing statement relating to this Deed of Trust shall
be sufficient as a financing statement for any of the purposes referred to in
this Section.
6.3. Notice to Account
Debtors. In addition to the rights granted elsewhere in this Deed of
Trust, Administrative Agent may at any time, after and during the continuation
of a Default, 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 for the
ratable benefit of Lenders directly.
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 Deed of Trust, 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.
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 23
Exhibit
10.4
6.5. No Impairment of
Security. The lien, security interest and other security rights of
Administrative Agent and Lenders hereunder or under any other Loan Document
shall not be impaired by any indulgence, moratorium or release granted by
Administrative Agent or Lenders including, but not limited to, any renewal,
extension or modification which Administrative Agent or Lenders may grant with
respect to any Secured Indebtedness, or any surrender, compromise, release,
renewal, extension, exchange or substitution which Administrative Agent or
Lenders 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 or Lenders shall not release or impair the
lien, security interest or other security rights of Administrative Agent and
Lenders 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 and Lenders consent to
any junior lien).
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.
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 24
Exhibit
10.4
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 Deed of
Trust 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 Lenders, and no extension of the time for the payment
of the Secured Indebtedness given by Administrative Agent or any Lender 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. Each
Grantor agrees that it shall be bound by any modification of this Deed of Trust
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 impair the obligations of such Grantor under this Deed
of Trust or any other Loan Document. Nothing in this Section or elsewhere in
this Deed of Trust shall be construed to imply Administrative Agent’s and
Lenders’ consent to any transfer of the Property.
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
Credit Agreement (or if no such designation is made, at the address of
Administrative Agent indicated at the end of this Deed of Trust). 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 the county in which the Secured Indebtedness is
payable, 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
Deed of Trust 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 he made by certified
or registered mail, return receipt requested, directed to Grantor at its address
stated at the end of this Deed of Trust, or at a subsequent address of Grantor
of which Administrative Agent received actual notice from Grantor in accordance
with this Deed of Trust, 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 WAIVES THE RIGHT TO TRIAL BY JURY
IN CONNECTION WITH ANY ACTION, SUIT OR OTHER PROCEEDING ARISING OUT OF OR
RELATING TO THIS DEED OF TRUST OR ANY OTHER LOAN DOCUMENT.
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 25
Exhibit
10.4
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 for the ratable benefit of Lenders at
Borrower’s request, and Administrative Agent for the ratable benefit of Lenders
shall be subrogated to any and all rights, security interests and liens owned by
any owner or holder 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
Deed of Trust 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 for the ratable
benefit of Lenders, 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 Deed of Trust or
under the vendor’s or purchase money lien without waiving the other or may
foreclose under both.
6.10. Application of Payments to
Certain Indebtedness. If any part of the Secured Indebtedness cannot be
lawfully secured by this Deed of Trust or if any part of the Property cannot be
lawfully subject to the lien and security interest hereof to the full extent of
such indebtedness, then all payments made shall be applied on said indebtedness
first in discharge of that portion thereof which is not secured by this Deed of
Trust.
6.11. Compliance with Usury
Laws. It is the intent of Grantor and Administrative Agent and Lenders
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.
6.12. Release. This Deed of
Trust shall be released by Administrative Agent in due form at Grantor’s cost
upon the earlier to occur of (a) payment in full of the Guaranteed Obligations,
(b) any event entitling Grantor to a release of this Deed of Trust under that
certain Second Amendment Agreement of even date herewith amending the Credit
Agreement.
6.13. Notices. All notices,
requests, consents, demands and other communications required or which any party
desires to give hereunder or under any other Loan Document shall be in writing
and, unless otherwise specifically provided in such other Loan Document, shall
be deemed sufficiently given or furnished if delivered by personal delivery, by
nationally recognized overnight courier service, or by registered or certified
United States mail, postage prepaid, addressed to the party to whom directed at
the addresses specified in this Deed of Trust (unless changed by similar notice
in writing given by the particular party whose address is to be changed) or by
facsimile. Any such notice or communication shall be deemed to have been given
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. Notwithstanding the
foregoing, no notice of change of address shall be effective except upon
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.
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 26
Exhibit
10.4
6.14. Invalidity of Certain
Provisions. A determination that any provision of this Deed of Trust 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 Deed of Trust 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.
6.15. Gender; Titles;
Construction. Within this Deed of Trust, 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 Deed of Trust and not to any particular
Article, Section, paragraph or provision. The term “person” and words importing
persons as used in this Deed of Trust 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.
6.16. Administrative Agent’s
Consent. Except where otherwise expressly provided herein, in any
instance hereunder where the approval, consent or the exercise of judgment of
Administrative Agent is required or requested, (a) the granting or denial of
such approval or consent and the exercise of such judgment shall be within the
sole discretion of Administrative Agent, and Administrative Agent shall not, for
any reason or to any extent, be required to grant such approval or consent or
exercise such judgment in any particular manner, regardless of the
reasonableness of either the request or Administrative Agent’s judgment, and (b)
no approval or consent of Administrative Agent shall be deemed to have been
given except by a specific writing intended for the purpose and executed by an
authorized representative of Administrative Agent.
6.17. Grantor. Unless the
context clearly indicates otherwise, as used in this Deed of Trust, “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 signs 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 and Lenders that
this instrument is executed, acknowledged and delivered by Grantor’s duly
authorized representatives.
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 27
Exhibit
10.4
6.18. Execution; Recording.
This Deed of Trust has been 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 Deed of Trust, 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 Deed of Trust shall be deemed to
be the date reflected on the first page hereof. Grantor will cause this Deed of
Trust 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.
6.19. Successors and
Assigns. The terms, provisions, covenants and conditions hereof shall be
binding upon Grantor, and the heirs, devisees, representatives, successors and
assigns of Grantor, and shall inure to the benefit of Trustee and Administrative
Agent and Lenders and shall constitute covenants running with the Land. All
references in this Deed of Trust to Grantor shall be deemed to include all such
heirs, devisees, representatives, successors and assigns of
Grantor.
6.20. Modification or
Termination. The Loan Documents may only be modified or terminated by a
written instrument or instruments intended for that purpose and executed by the
party against which enforcement of the modification or termination is asserted.
Any alleged modification or termination which is not so documented shall not be
effective as to any party.
6.21. No Partnership, Etc.
The relationship between Administrative Agent, Lenders and Grantor is solely
that of Administrative Agent and borrower. Neither Administrative Agent nor any
Lender has a 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 Lenders or in any way make Administrative Agent or Lenders a
co-principal with Grantor with reference to the Property. All agreed contractual
duties between or among Administrative Agent, Lenders, 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.
6.22. Applicable Law. THIS DEED OF TRUST, 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, EXCEPT AS OTHERWISE REQUIRED BY MANDATORY PROVISIONS OF LAW AND
EXCEPT TO THE EXTENT THAT REMEDIES PROVIDED BY THE LAWS OF ANY JURISDICTION
OTHER THAN THE STATE OF TEXAS ARE GOVERNED BY THE LAWS OF SUCH OTHER
JURISDICTION.
6.23. Entire Agreement. The
Loan Documents constitute the entire understanding and agreement between
Grantor, Administrative Agent and Lenders with respect to the transactions
arising in connection with the Secured Indebtedness and supersede all prior
written or oral understandings and agreements between Grantor, Administrative
Agent and Lenders 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 or Lenders to make, any representations, understandings,
stipulations, agreements or promises, oral or written, with respect to the
matters addressed in the Loan Documents.
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 28
Exhibit
10.4
6.24. Construction Deed of
Trust. This Deed of Trust constitutes a “construction mortgage” as
defined in Section 9.334 of the UCC to the extent that it secures an obligation
incurred for the construction of the Improvements, including the acquisition
cost of the Land.
6.25. Substitute Trustee.
The 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 death,
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 other formality 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 or released 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 he 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 he shall
thereupon succeed to, and shall hold, possess and execute, all 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.
6.26. No Liability of
Trustee. The 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. The Trustee shall have the right to rely on any instrument, document
or signature authorizing or supporting any action taken or proposed to be taken
by him hereunder, believed by him in good faith to be genuine. All moneys
received by Trustee shall, until used or applied as herein provided, be held in
trust for the purposes for which they were received, but need not be segregated
in any manner from any other moneys (except to the extent required by law), and
Trustee shall be under no liability for interest on any moneys received by him
hereunder. Grantor hereby ratifies and confirms any and all acts which the
herein named Trustee or his successor or successors, substitute or substitutes,
in this trust, shall do lawfully by virtue hereof. Grantor will reimburse
Trustee for, and save him harmless against, any and all liability and expenses
which may be incurred by him in the performance of his duties. The foregoing
indemnity shall not terminate upon discharge of the Secured Indebtedness or
foreclosure, or release or other termination, of this Deed of
Trust.
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 29
Exhibit
10.4
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]
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 30
Exhibit
10.4
IN
WITNESS WHEREOF, Grantor has executed this instrument is executed by Grantor as
of the date first written on page 1 hereof.
|
Address
of Grantor:
|
GRANTOR: | ||
|
c/o
Behringer Harvard Funds
15601
Dallas Parkway, Suite 600
|
BEHRINGER
HARVARD 250/290 CARPENTER, LP, a Texas limited
partnership
|
||
|
Addison,
Texas 75001
|
|||
|
Attention: Gerald
J. Reihsen, III
|
By:
|
Behringer
Harvard 250/290 Carpenter GP, LLC, a Texas limited liability company, its
general partner
|
|
|
By:
|
|||
|
Name:
|
|
||
|
Title:
|
|
||
|
STATE
OF TEXAS
|
§
|
|
|
§
|
ss.
Dallas
|
|
COUNTY
OF DALLAS
|
§
|
The
foregoing instrument was acknowledged before me this ______ day of September,
2005, __________________________________________, ____________________________
of Behringer Harvard 250/290 Carpenter GP, LLC, a Texas limited liability
company, general partner of Behringer Harvard 250/290 Carpenter LP, a Texas
limited partnership, on behalf such partnership and company.
Witness
my hand and official seal.
|
|
|
|
Notary
Public, State of Texas
|
|
|
My
commission expires:
|
|
DEED OF
TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT – Page 31
Exhibit
10.4
EXHIBIT
A
LAND
BEING all
of the re-plat of Site 5 of the Revision of Las Colinas, Area II, an addition to
the City of Irving, Dallas County, Texas, according to the plat thereof recorded
in Volume 81047, Page 1139, Map Records, Dallas County, Texas, together with
certificate of correction recorded in Volume 86158, Page 893, Deed Records,
Dallas County, Texas, and being more particularly described as
follows:
Beginning
at a 5/8 inch iron rod set for corner at the intersection of the Southwest
right-of-way line of East John W. Carpenter Freeway (State Highway No. 114)
(variable width right-of-way) with the Southeast right-of-way line of Goodson
Drive (60 foot right-of-way) at the most Northern corner of said
addition;
Thence
South 39 degrees 34 minutes 30 seconds East, along the Southwest right-of-way
line of said East John W. Carpenter Freeway a distance of 324.50 feet to a 1/2
inch iron rod found for corner (control monument);
Thence
South 27 degrees 39 minutes 21 seconds East, continuing along said East John W.
Carpenter Freeway a distance of 408.98 feet to a 5/8 inch iron rod set for
corner;
Thence
South 51 degrees 15 minutes 27 seconds East, continuing along the Southwest
right-of-way line of said East John W. Carpenter Freeway a distance of 101.20
feet to a 5/8 inch iron rod set for corner at its intersection with the
Northwest right-of-way line of Wingren Drive (60 foot right-of-way), said point
being the most Eastern corner of said addition;
Thence
South 50 degrees 20 minutes 43 seconds West, along the Northwest right-of-way
line of said Wingren Drive a distance of 75.33 feet to a 5/8 inch iron rod set
for corner at the beginning of a curve to the left having a radius of 999.59
feet, a central angle 16 degrees 55 minutes 41 seconds, and a chord which bears
South 42 degrees 22 minutes 34 seconds West, a distance of 294.26
feet;
Thence in
a Southwesterly direction along the curving Northwest right-of-way line of said
Wingren Drive an arc distance of 295.33 feet to an “x” set for
corner;
Thence
South 32 degrees 22 minutes 07 seconds West, continuing along the Northwest
right-of-way line of said Wingren Drive, a distance of 115.00 feet to a 1/2 inch
iron rod found for corner (control monument) at the beginning of a curve to the
left having a radius of 1225.68 feet, a central angle of 10 degrees 12 minutes
59 seconds, and a chord which bears South 28 degrees 15 minutes 26 seconds West,
a distance of 218.26 feet;
Thence
North 68 degrees 19 minutes 38 seconds West, along the Northeast right-of-way
line of said Decker Drive a distance of 14.31 feet to a 5/8 inch iron rod set
for corner at the beginning of a curve to the right having a radius of 626.57
feet, a central angle of 21 degrees 31 minutes 54 seconds, and a chord which
bears North 57 degrees 27 minutes 13 seconds West, a distance of 234.08
feet;
EXHIBIT A – Page
1
Exhibit
10.4
Thence in
a Northwesterly direction along the curving right-of-way of said Decker Drive an
arc distance of 235.46 feet to a 5/8 inch iron rod set for corner;
Thence
North 46 degrees 41 minutes 46 seconds West, along the Northeast right-of-way
line of said Decker Drive a distance of 282.99 feet to a 5/8 inch iron rod set
for corner at the beginning of a curve to the left having a radius of 699.26
feet, a central angle of 19 degrees 29 minutes 33 seconds, and a chord which
bears North 56 degrees 29 minutes 29 seconds West, a distance of 236.75
feet;
Thence in
a Northwesterly direction along the curving right-of-way of said Decker Drive an
arc distance of 237.90 feet;
Thence
North 66 degrees 06 minutes 17 seconds West, along the Northeast right-of-way
line of said Decker Drive a distance of 24.19 feet to a 5/8 inch iron rod set
for corner at its intersection with the Southeast right-of-way line of said
Goodson Drive, at the most Western corner of said addition;
Thence
North 30 degrees 27 minutes 05 seconds East, along the Southeast right-of-way
line of said Goodson Drive a distance of 490.03 feet to a 5/8 inch iron rod set
for corner at the beginning of a curve to the right having a radius of 820.69
feet, a central angle of 19 degrees 59 minutes 59 seconds, and a chord which
bears North 40 degrees 25 minutes 30 seconds East, a distance of 285.02
feet;
Thence in
a Northeasterly direction, along the curving right-of-way line of said Goodson
Drive an arc distance of 286.47 feet to a 5/8 inch iron rod set for
corner;
Thence
North 50 degrees 25 minutes 30 seconds East, a distance of 195.00 feet to the
Place of Beginning and containing 15.407 acres of land.
EXHIBIT A – Page
2