UPON RECORDATION RETURN TO:
EXHIBIT 10.26
Sonnenschein Nath & Rosenthal LLP
8000 Sears Tower
233 South Wacker
Chicago, Illinois 60606
Attention: Patrick G.
Moran, Esq.
LEASEHOLD DEED OF TRUST,
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ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND
-------------------------------------------
FIXTURE FILING
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Project Commonly Known As
"Scottsdale Quarter, Scottsdale, Arizona"
Grantor's Organizational Identification Number is:
______________
THIS
LEASEHOLD DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT
AND
FIXTURE FILING (this "Deed of Trust") is made as of November 30,
2007, by
KIERLAND CROSSING, LLC, a Delaware limited liability company
("Grantor") whose
address is 150 East Gay Street, Columbus, Ohio 43215, in favor of
Lawyers Title
of Arizona, Inc., an Arizona Corporation ("Trustee"), whose address
is 1850 N.
Central Avenue, Suite 1200, Phoenix, AZ 85004, for the benefit of
KEYBANK
NATIONAL ASSOCIATION, as administrative agent for itself and one or
more Lenders
(as defined in that certain Construction, Acquisition and Interim
Loan Agreement
bearing the date of November 30, 2007 by and among Grantor, such
Lenders and
KEYBANK NATIONAL ASSOCIATION, as administrative agent, hereinafter
the "Loan
Agreement"), together with its successors and assigns (the
"Beneficiary"), whose
address is 127 Public Square, Cleveland, Ohio 44114. All
capitalized terms used
but not defined herein shall have the meaning given such terms in
the Loan
Agreement.
1. Grant and
Secured Obligations.
1.1
Grant. Grantor has executed and delivered to the Lenders
certain
promissory notes (such promissory notes, together with any
amendments or
allonges thereto, or restatements, replacements or renewals
thereof, are
collectively referred to herein as the "Notes"), in and by which
the Grantor
promises to pay the principal of all Loans under such Loan
Agreement and
interest at the rate and in installments as provided in the Notes,
with a final
payment of the outstanding principal balance and accrued and unpaid
interest
being due on or before May __, 2011, subject to extension in
accordance with the
terms of the Loan Agreement, or such earlier date resulting from
acceleration of
the indebtedness by Lenders (the "Maturity Date"). All amounts
secured hereby
shall be governed by the terms and conditions of the Loan
Agreement. To the
extent there may be any inconsistency between the terms and
provisions of this
Deed of Trust and the terms and provisions of the Loan Agreement,
the terms and
provisions of the Loan Agreement shall govern and control.
<PAGE>
Grantor has a 100% leasehold interest in the Property (as defined
below)
under that certain First Amended and Restated Ground Lease by and
between SUCIA
SCOTTSDALE, LLC (the "Ground Lessor") and Grantor dated December 6,
2006, as the
same may be amended from time to time (the "Ground Lease").
In
consideration of the Indebtedness evidenced by the Notes and to
secure
the timely payment of both principal and interest in accordance
with the terms
and provisions of the Notes and in accordance with the terms,
provisions and
limitations of this Deed of Trust, to secure the payment of any and
all amounts
advanced by the Administrative Agent or any Lender with respect to
the Property
for the payment of taxes, assessments, insurance premiums or any
other costs
incurred in the protection of the Property, to secure the
performance of the
covenants and agreements contained herein and in the Notes, the
Loan Agreement,
and any other documents evidencing or securing the Loans
(collectively, the
"Loan Documents") to be performed by Grantor, and for the purpose
of securing
payment and performance of the Obligations and Secured Obligations
defined and
described in Section 1.2 below, Grantor does by these presents
grant, bargain,
sell, convey, assign and grant a security interest in, mortgage and
warrant unto
Trustee in trust for the benefit of Beneficiary forever, with power
of sale, all
estate, right, title and interest which Grantor now has or may
later acquire in
and to the following property (all or any part of such property, or
any interest
in all or any estate or part of it, as the context may require, the
"Property"):
(a) The real property located in the City of Scottsdale, County
of
Maricopa, State of Arizona, as described in Exhibit A, together
with all
existing and future easements and rights affording access to it
(the
"Premises"); together with
(b) All buildings, structures and improvements now located or later
to
be
constructed on the Premises (the "Improvements"); together with
(c) All existing and future appurtenances, privileges,
easements,
franchises and tenements of the Premises, including all minerals,
oil, gas,
other hydrocarbons and associated substances, sulphur, nitrogen,
carbon
dioxide, helium and other commercially valuable substances which
may be in,
under or produced from any part of the Premises, all development
rights and
credits, air rights, water, water rights (whether riparian,
appropriative
or
otherwise, and whether or not appurtenant) and water stock, and
any
Premises lying in the streets, roads or avenues, open or proposed,
in front
of
or adjoining the Premises and Improvements; together with
(d) All existing and future leases, subleases, subtenancies,
licenses,
occupancy agreements and concessions ("Leases") relating to the use
and
enjoyment of all or any part of the Premises and Improvements, and
any and
all
guaranties and other agreements relating to or made in connection
with
any
of such leases; together with
(e) All real property and improvements on it, and all
appurtenances
and
other property and interests of any kind or character, whether
described in Exhibit A or not, which may be reasonably necessary
or
desirable to promote the present and any reasonable future
beneficial use
and
enjoyment of the Premises and Improvements; together with
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<PAGE>
(f) All goods, materials, supplies, chattels, furniture,
fixtures,
equipment and machinery now or later to be attached to, placed in
or on, or
used
in connection with the use, enjoyment, occupancy or operation of
all
or
any part of the Premises and Improvements, whether stored on
the
Premises or elsewhere, including all pumping plants, engines,
pipes,
ditches and flumes, and also all gas, electric, cooking, heating,
cooling,
air
conditioning, lighting, refrigeration and plumbing fixtures and
equipment, all of which shall be considered to the fullest extent
of the
law
to be real property for purposes of this Deed of Trust and any
manufacturer's warranties with respect thereto; together with
(g)
All building materials, equipment, work in process or other
personal property of any kind, whether stored on the Premises or
elsewhere,
which have been or later will be acquired for the purpose of
being
delivered to, incorporated into or installed in or about the
Premises or
Improvements; together with
(h) All of Grantor's interest in and to all operating accounts
pertaining to the Property and the Loans, whether disbursed or
not;
together with
(i) All rights to the payment of money, accounts, accounts
receivable,
reserves, deferred payments, refunds, cost savings, payments and
deposits,
whether now or later to be received from third parties (including
all
earnest money sales deposits) or deposited by Grantor with third
parties
(including all utility deposits), contract rights, development and
use
rights, governmental permits and licenses, applications,
architectural and
engineering plans, specifications and drawings, as-built drawings,
chattel
paper, instruments, documents, notes, drafts and letters of credit
(other
than
letters of credit in favor of Beneficiary), which arise from or
relate
to
construction on the Premises or to any business now or later to
be
conducted on it, or to the Premises and Improvements generally and
any
builder's or manufacturer's warranties with respect thereto;
together with
(j) All insurance policies pertaining to the Premises and all
proceeds, including all claims to and demands for them, of the
voluntary or
involuntary conversion of any of the Premises, Improvements or the
other
property described above into cash or liquidated claims, including
proceeds
of
all present and future fire, hazard or casualty insurance policies
and
all
condemnation awards or payments now or later to be made by any
public
body
or decree by any court of competent jurisdiction for any taking or
in
connection with any condemnation or eminent domain proceeding, and
all
causes of action and their proceeds for any damage or injury to
the
Premises, Improvements or the other property described herein or
any part
of
them, or breach of warranty in connection with the construction of
the
Improvements,
including causes of action arising in tort, contract, fraud
or
concealment of a material fact; together with
(k) All of Grantor's right, title and interest in and to the
Ground
Lease and the leasehold estate created thereby, together with
all
modifications, extensions and renewals of the Ground Lease and all
credits,
deposits (including, without limitation, any deposit of cash or
securities
or
any other property which may be held to secure Grantor's
performance of
its
obligations under the Ground Lease), options, privileges and rights
of
Grantor as tenant under the Ground Lease, including, but not
limited to all
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<PAGE>
the
estate, right, title, claim or demand whatsoever of Grantor either
in
law
or in equity, in possession or expectancy of, in and to the
Property or
any
part thereof, including the fee title to the property conveyed or
to be
conveyed pursuant to any right described in the Ground Lease.
(l) All of Grantor's rights in and to any and all Rate
Management
Transactions entered into with the Administrative Agent or any of
the
Lenders in connection with the Loan Agreement. "Rate Management
Transactions" shall mean any transaction (including an agreement
with
respect thereto) now existing or hereafter entered into between the
Grantor
and
Administrative Agent or any Lender which is a rate swap, basis
swap,
forward rate transaction, commodity swap, commodity option, equity
or
equity index swap, equity or equity index option, bond option,
interest
rate
option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, forward transaction, currency
swap
transaction, cross-currency rate swap transaction, currency option
or any
other similar transaction (including any option with respect to any
of
these transactions) or any combination thereof, whether linked to
one or
more
interest rates, foreign currencies, commodity prices, equity prices
or
other financial measures;
(m) All books and records pertaining to any or all of the
Property,
including computer-readable memory and any computer hardware or
software
necessary to access and process such memory ("Books and Records");
together
with
(n) All proceeds of, additions and accretions to, substitutions
and
replacements for, and changes in any of the Property.
1.2 Secured
Obligations.
(a) Grantor makes the
grant, conveyance, and mortgage set forth in
Section 1.1 above, and grants the security interest set forth in
Section 3
below for the purpose of securing the following obligations (the
"Secured
Obligations") in any order of priority that Beneficiary may
choose:
(i) Payment of all obligations at any time owing under the
Notes
under the terms of the Loan Agreement; and
(ii) Payment and performance of all obligations of Grantor
under
this Deed of Trust; and
(iii) Payment and performance of all obligations of Grantor
under
the Loan Agreement; and
(iv) Payment and performance of any obligations of Grantor
under
any other Loan Document which is executed by Grantor;
(v) Payment and performance of all future advances and other
obligations that Grantor or any successor in ownership of all or
part
of the Property may agree to pay and/or perform (whether as
principal,
surety or guarantor) for the benefit of Beneficiary; and
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<PAGE>
(vi) Payment and performance of all modifications, amendments,
extensions, and renewals, however evidenced, of any of the
Secured
Obligations defined herein.
(b) All persons who may have or acquire an interest in all or any
part
of
the Property will be considered to have notice of, and will be
bound by,
the
terms of this Deed of Trust and the Secured Obligations and each
other
agreement or instrument made or entered into in connection with
each of the
Secured Obligations. Such terms include any provisions in any of
the Notes
or
the Loan Agreement which permit borrowing, repayment and
reborrowing, or
which provide that the interest rate on one or more of the
Secured
Obligations may vary from time to time.
2. Assignment of
Rents.
2.1
Assignment. Grantor hereby irrevocably, absolutely, presently
and
unconditionally assigns to Beneficiary all rents, royalties,
issues, profits,
revenue, income, accounts, proceeds and other benefits of the
Property, whether
now due, past due or to become due, including all prepaid rents and
security
deposits (some or all collectively, as the context may require,
"Rents"). This
is an absolute assignment, not an assignment for security only.
2.2
Grant of License. Beneficiary hereby confers upon Grantor a
license
("License") to collect and retain the Rents as they become due and
payable, so
long as no Event of Default, as defined in Section 6.2 below, shall
exist and be
continuing. If an Event of Default has occurred and is continuing,
Beneficiary
shall have the right, which it may choose to exercise in its sole
discretion, to
terminate this License without notice to or demand upon Grantor,
and without
regard to the adequacy of Beneficiary's security under this Deed of
Trust.
2.3
Collection and Application of Rents. Subject to the License granted
to
Grantor under Section 2.2 above, Beneficiary has the right, power
and authority
to collect any and all Rents. Grantor hereby appoints Beneficiary
its
attorney-in-fact to perform any and all of the following acts, if
and at the
times when Beneficiary in its sole discretion may so choose:
(a) Demand, receive and enforce payment of any and all Rents;
(b) Give receipts, releases and satisfactions for any and all
Rents;
and
(c) Sue either in the name of Grantor or in the name of
Beneficiary
for
any and all Rents.
Beneficiary and Grantor agree that the mere recordation of the
assignment
granted herein entitles Beneficiary immediately to collect and
receive Rents
upon the occurrence of an Event of Default, as defined in Section
6.2, without
first taking any acts of enforcement under applicable Law, such as,
but not
limited to, providing notice to Grantor, filing foreclosure
proceedings,
initiating a Trustee's sale, or seeking and/or obtaining the
appointment of a
receiver. Further, Beneficiary's right to the Rents does not depend
on whether
or not Beneficiary takes possession of the Property as permitted
under
Subsection 6.3(c). In Beneficiary's sole discretion, Beneficiary
may choose to
collect Rents either with or without taking possession of the
Property.
Beneficiary shall apply all Rents collected by it in the manner
provided under
Section 6.6. If an Event of Default occurs while Beneficiary is in
possession of
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<PAGE>
all or part of the Property and is collecting and applying Rents as
permitted
under this Deed of Trust, Beneficiary and any receiver shall
nevertheless be
entitled to exercise and invoke every right and remedy afforded any
of them
under this Deed of Trust and at law or in equity.
2.4
Beneficiary Not Responsible. Under no circumstances shall
Beneficiary
have any duty to produce Rents from the Property. Regardless of
whether or not
Beneficiary, in person or by agent, takes actual possession of the
Premises and
Improvements, unless Beneficiary agrees in writing to the contrary,
Beneficiary
is not and shall not be deemed to be:
(a) A "mortgagee in possession" for any purpose; or
(b) Responsible for performing any of the obligations of the
lessor
under any lease; or
(c) Responsible for any waste committed by lessees or any other
parties, any dangerous or defective condition of the Property, or
any
negligence in the management, upkeep, repair or control of the
Property,
unless caused by the gross negligence, willful misconduct or bad
faith of
Beneficiary; or
(d) Liable in any manner for the Property or the use,
occupancy,
enjoyment or operation of all or any part of it.
2.5
Leasing. Grantor shall not accept any deposit or prepayment of
rents
under the Leases for any rental period exceeding one (1) month
without
Beneficiary's prior written consent. Grantor shall not lease the
Property or any
part of it except strictly in accordance with the Loan
Agreement.
3. Grant of
Security Interest.
3.1
Security Agreement. The parties intend for this Deed of Trust to
create
a first priority lien on the Property, and an absolute assignment
of the Rents,
all in favor of Beneficiary. The parties acknowledge that some of
the Property
and some or all of the Rents may be determined under applicable Law
to be
personal property or fixtures. To the extent that any portion of
the Property or
Rents may be or are determined to be personal property, Grantor as
debtor hereby
grants Beneficiary as secured party a security interest in all such
Property and
Rents, to secure payment and performance of the Secured
Obligations. This Deed
of Trust constitutes a security agreement under the Uniform
Commercial Code of
the state in which the Property is located, covering all such
Property and
Rents.
3.2
Financing Statements. Grantor hereby authorizes Beneficiary to file
one
or more financing statements. In addition, Grantor shall execute
such other
documents as Beneficiary may from time to time require to perfect
or continue
the perfection of Beneficiary's security interest in any Property
or Rents. As
provided in Section 5.10 below, Grantor shall pay all fees and
costs that
Beneficiary may incur in filing such documents in public offices
and in
obtaining such record searches as Beneficiary may reasonably
require. In case
Grantor fails to execute any financing statements or other
documents for the
perfection or continuation of any security interest, Grantor hereby
appoints
Beneficiary as its true and lawful attorney-in-fact to execute any
such
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<PAGE>
documents on its behalf. If any financing statement or other
document is filed
in the records normally pertaining to personal property, that
filing shall never
be construed as in any way derogating from or impairing this Deed
of Trust or
the rights or obligations of the parties under it.
4. Fixture
Filing.
This
Deed of Trust constitutes a financing statement filed as a
fixture
filing under Article 9 of the Uniform Commercial Code in the state
in which the
Property is located, as amended or recodified from time to time,
covering any
Property which now is or later may become fixtures attached to the
Premises or
Improvements. For this purpose, the respective addresses of
Grantor, as debtor,
and Beneficiary, as secured party, are as set forth in the
preambles of this
Deed of Trust.
5. Rights and
Duties of the Parties.
5.1
Representations and Warranties. Grantor represents and warrants
that:
(a) Grantor owns and has a good and insurable leasehold interest
in
and
to the Premises and Improvements, free and clear of all
covenants,
liens, encumbrances, restrictions, easements and other matters
affecting
title to the Premises except the Permitted Exceptions;
(b) Grantor has good title to all Property other than the Premises
and
Improvements;
(c) Grantor has the full and unlimited power, right and authority
to
encumber the Property and assign the Rents;
(d) This Deed of Trust creates a first and prior lien on the
leasehold
interest in the Premises and Improvements created by the Ground
Lease;
(e) The Property includes all property and rights which may be
reasonably necessary or desirable to promote the present and any
reasonable
future beneficial use and enjoyment of the Premises and
Improvements;
(f) Grantor owns any Property which is personal property free
and
clear of any security agreements, reservations of title or
conditional
sales contracts, and there is no financing statement affecting
such
personal property on file in any public office;
(g) The Ground Lease is in full force and effect in accordance
with
its
terms, unmodified by any writing or otherwise except as disclosed
in
writing to Beneficiary; all base rent, additional rent (if any) and
other
charges reserved in or payable under the Ground Lease have been
paid in
full
to the extent that they are payable to the date hereof; and
neither
Ground Lessor nor Grantor under the Ground Lease are in default
under any
of
the terms of the Ground Lease, and there are no circumstances that
with
the
passage of time, the giving of notice, or both, would constitute
a
default by either party thereunder; and
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<PAGE>
(h) Grantor's place of business, or its chief executive office if
it
has
more than one place of business, is located at the address
specified
below.
5.2
Taxes and Assessments. Grantor shall, prior to delinquency, pay
or
cause to be paid each installment of all taxes and special
assessments of every
kind, now or hereafter levied against the Property or any part
thereof, without
notice or demand, and shall provide Beneficiary with evidence of
the payment of
same. Grantor shall pay all taxes and assessments which may be
levied upon
Beneficiary's or the Lenders' interest herein or upon this Deed of
Trust or the
debt secured hereby (excluding any income taxes or similar charges
imposed upon
Beneficiary or the Lenders), without regard to any law that may be
enacted
imposing payment of the whole or any part thereof upon the
Beneficiary or any
Lender. Notwithstanding anything contained in this Section to the
contrary,
Grantor shall have the right to pay or cause to be paid any such
tax or special
assessment under protest or to otherwise contest any such tax or
special
assessment but only if (i) such contest has the effect of
preventing the
collection of such tax or special assessment so contested and also
preventing
the sale or forfeiture of the Property or any part thereof or any
interest
therein, (ii) Grantor promptly notifies Beneficiary in writing of
its intent to
contest such tax or special assessment, and (iii) if so requested
in writing by
Beneficiary, Grantor has deposited security in form and amount
reasonably
satisfactory to Beneficiary, and increases the amount of such
security so
deposited promptly after Beneficiary's request therefor. Grantor
shall prosecute
or cause the prosecution of all such contest actions in good faith
and with due
diligence.
5.3
Performance of Secured Obligations. Grantor shall promptly pay
and
perform each Secured Obligation in accordance with its terms.
5.4
Liens, Charges and Encumbrances. Grantor shall immediately
discharge
any lien on the Property which is not a Permitted Exception.
5.5
Damages, Restoration, and Insurance Proceeds. As long as no Event
of
Default has occurred and is then continuing, all insurance proceeds
for losses
at the Property of less than $250,000.00 shall be adjusted with and
payable to
the Grantor. In case of loss, Beneficiary shall have the right (but
not the
obligation) to participate in and reasonably approve the settlement
of any
insurance claim in excess of $250,000.00 and all claims thereafter.
Beneficiary
is at all times authorized to collect and receive any insurance
proceeds for
those claims which Beneficiary is entitled to approve the
settlement of
hereunder and to hold such insurance proceeds for disbursement as
provided
herein and in the Ground Lease.
Such
insurance proceeds shall be applied to pay for costs of repair
and
restoration of the Property provided that no Event of Default has
occurred and
is then continuing. If an Event of Default has occurred and is then
continuing,
Beneficiary shall have the right to apply such insurance proceeds
to payment of
the Secured Obligations. In the event that Beneficiary is not
entitled to, or
does not elect to, apply the insurance proceeds to the Secured
Obligations as
set forth above, such insurance proceeds shall be used to reimburse
Grantor for
the cost of rebuilding or restoring the Improvements. The
Improvements shall be
so restored or rebuilt as to be substantially the same quality and
character as
the Improvements were prior to such damage or destruction in
accordance with the
Plans and Specifications or to such other condition as Beneficiary
shall
reasonably approve in writing.
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<PAGE>
If
the proceeds are made available for repair and restoration, any
request
by Grantor for a disbursement by Beneficiary of fire or casualty
insurance
proceeds and funds deposited by Grantor with Beneficiary pursuant
to this
Section 5.5 shall be treated by Beneficiary as a Request for Loan
under terms of
the Loan Agreement, and the disbursement thereof shall be
conditioned upon
Grantor's compliance with and satisfaction of the same conditions
precedent as
would be applicable under the Loan Agreement for such an Advance.
Such requests
shall also be required to comply with all of the requirements of
Article 13 of
the Ground Lease, including the receipt of any approvals from the
Ground Lessor
required thereunder. Additionally, such disbursement shall also be
conditioned
upon Grantor providing to Administrative Agent: (a) updated title
insurance, (b)
satisfactory evidence, as reasonably determined by Administrative
Agent, that
the Premises and Improvements shall be so restored or rebuilt as to
be of at
least equal value and quality and substantially the same character
as the
Premises and Improvements were prior to such damage or destruction
in accordance
with the Plans and Specifications or to such other condition as
Administrative
Agent shall reasonably approve in writing, (c) satisfactory
evidence of the
estimated cost of completion thereof and with such architect's
certificates,
waivers of lien, contractors' sworn statements and other evidence
of cost and of
payments as Administrative Agent may reasonably require and
approve. The
undisbursed balance of insurance proceeds shall at all times be
sufficient to
pay for the cost of completion of the work free and clear of liens
and if such
proceeds are insufficient, Grantor shall deposit the amount of such
deficiency
with Beneficiary prior to the disbursement by Beneficiary of any
insurance
proceeds.
5.6
Condemnation Proceeds. Grantor hereby assigns, transfers and sets
over
unto Beneficiary its entire interest in the proceeds (the
"Condemnation
Proceeds") of any award or any claim for damages for any of the
Property taken
or damaged under the power of eminent domain or by condemnation or
any
transaction in lieu of condemnation ("Condemnation"), unless,
notwithstanding
the forgoing, such taking, damage or condemnation does not cause a
material
diminution in the value of the Premises and the Improvements in
which case all
Condemnation Proceeds for damages to the Property shall be payable
to Grantor.
Beneficiary shall make available to Grantor the Condemnation
Proceeds for the
restoration of the Premises and Improvements if Grantor satisfies
all of the
conditions set forth in Section 5.5 above for disbursement of
insurance
proceeds. In all other cases Beneficiary shall have the right, at
its option, to
apply the Condemnation Proceeds upon or in reduction of the
Obligations, whether
due or not. If Beneficiary is entitled to and does elect to apply
Condemnation
Proceeds upon or in reduction of the Obligations, then Beneficiary
shall reduce
the then outstanding balance of the Loans under the Loan Agreement
by the amount
of the Condemnation Proceeds received and so applied by
Beneficiary. If the
Condemnation Proceeds are required to be used as aforesaid to
reimburse Grantor
for the cost of rebuilding or restoring the Premises and
Improvements, or if
Beneficiary elects that the Condemnation Proceeds be so used, and
the Premises
and Improvements shall be rebuilt or restored, the Condemnation
Proceeds shall
be paid out in the same manner as is provided in Section 5.5 above
for the
payment of insurance proceeds toward the cost of rebuilding or
restoration of
the Premises and Improvements. Any surplus which may remain out of
the
Condemnation Proceeds after payment of such cost of rebuilding or
restoration
shall, at the option of Beneficiary, be applied on account of the
Indebtedness
or be paid to any other party entitled thereto.
5.7
Maintenance and Preservation of Property.
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<PAGE>
(a) Grantor shall insure the Property as required by Section
6.1(f)
and
Exhibit F of the Loan Agreement and keep the Property in good
condition
and
repair.
(b) Except for the demolition of the existing Dial Corporation
improvements on the Premises, Grantor shall not remove or demolish
the
Improvements or any material part of the Improvements in any way,
or
materially alter, restore or add to the Improvements, or initiate
or allow
any
material change or variance in any zoning or other Premises use
classification which adversely affects the Premises or any material
part of
it,
except with Beneficiary's express prior written consent in each
instance; the term "materially" or "material" as used in this
Section
5.7(b) shall mean having a monetary effect in an amount greater
than
$250,000.
(c) Grantor shall not commit or allow any act upon or use of
the
Premises or the Improvements which would violate: (i) any
applicable Laws
or
order of any Governmental Agency, whether now existing or later to
be
enacted and whether foreseen or unforeseen; or (ii) any public or
private
covenant, condition, restriction or equitable servitude affecting
the
Premises or the
Improvements. Grantor shall not bring or keep any article
on
the Premises or the Improvements or cause or allow any condition
to
exist on the Premises, if that could invalidate or would be
prohibited by
any
insurance coverage required to be maintained by Grantor on the
Property
or
any part of it under the Loan Agreement.
(d) Grantor shall not commit or allow waste of the Property.
(e) Grantor shall perform all other acts which from the character
or
use
of the Property may be reasonably necessary to maintain and
preserve
its
value.
5.8
Releases, Extensions, Modifications and Additional Security. From
time
to time, Beneficiary may perform any of the following acts without
incurring any
liability or giving notice to any person:
(a) Release any person liable for payment of any Secured
Obligation;
(b) Extend the time for payment or performance, or otherwise alter
the
terms of payment or performance, of any Secured Obligation;
(c) Accept additional real or personal property of any kind as
security for any Secured Obligation, whether evidenced by deeds of
trust,
mortgages, security agreements or any other instruments of
security;
(d) Alter, substitute or release any property securing the
Secured
Obligations;
(e) Consent to the making of any plat or map of the Premises or
any
part
of it;
(f) Join in granting any easement or creating any restriction
affecting the Property; or
(g) Join in any subordination or other agreement affecting this
Deed
of
Trust or the lien of it; or
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<PAGE>
(h) Release the Property or any part of it from the lien of this
Deed
of
Trust.
5.9
Release. If Grantor shall fully pay all principal and interest on
the
Notes and all other Indebtedness, fully pay and perform all other
Secured
Obligations, and comply with all of the other terms and provisions
hereof to be
performed and complied with by Grantor, Beneficiary, upon written
request of
Grantor, shall release this Deed of Trust and the lien thereof by
proper
instrument upon payment and discharge of the amounts required under
the Loan
Agreement and payment of any filing fee in connection with such
release. Grantor
shall pay any costs of preparation and recordation of such
release.
5.10
Compensation, Exculpation, Indemnification.
(a) Grantor agrees to pay all fees required by and pursuant to
the
Loan
Agreement for any services that Beneficiary may render in
connection
with
this Deed of Trust, including providing a statement of the
Secured
Obligations or providing the release pursuant to Section 5.9 above.
Grantor
shall also pay or reimburse all of Beneficiary's costs and expenses
which
may
be incurred in rendering any such services. Grantor further agrees
to
pay
or reimburse Beneficiary for all costs, expenses and other
advances
which may be incurred or made by Beneficiary in any efforts to
enforce any
terms of this Deed of Trust, including any rights or remedies
afforded to
Beneficiary under Section 6.4, whether any lawsuit is filed or not,
or in
defending any action or proceeding arising under or relating to
this Deed
of
Trust, including reasonable attorneys' fees and other legal costs,
costs
of
any Foreclosure Sale (as defined in Subsection 6.4(i) below)
including
Trustee's fees and any cost of evidence of title. If Beneficiary
chooses to
dispose of Property through more than one Foreclosure Sale, Grantor
shall
pay
all costs, expenses or other advances that may be incurred or made
by
Beneficiary in each of such Foreclosure Sales. In any suit to
foreclose the
lien hereof or enforce
any other remedy of Beneficiary under this Deed of
Trust or the Notes, including the exercise of the Trustee's power
of sale,
there shall be allowed and included as additional indebtedness in
the
decree for sale or other judgment or decree all expenditures and
expenses
which may be paid or incurred by or on behalf of Beneficiary for
reasonable
attorneys' costs and fees (including the costs and fees of
paralegals),
Trustee's fees, survey charges, appraiser's fees, inspecting
engineer's
and/or architect's fees, fees for environmental studies and
assessments and
all
additional expenses incurred by Beneficiary with respect to
environmental matters, outlays for documentary and expert
evidence,
stenographers' charges, publication costs, and costs (which may
be
estimated as to items to be expended after entry of the decree)
of
procuring all such abstracts of title, title searches and
examinations,
title insurance policies, and similar data and assurances with
respect to
title as Beneficiary may deem reasonably necessary either to
prosecute such
suit
or to evidence to bidders at any sale which may be had pursuant
to
such
decree the true condition of the title to, the value of or the
environmental condition of the Property. All expenditures and
expenses of
the
nature in this Subsection mentioned, and such expenses and fees as
may
be
incurred in the protection of the Property and maintenance of the
lien
of
this Deed of Trust, including the reasonable fees of any
attorney
(including the costs and fees of paralegals) employed by
Beneficiary in any
litigation or proceeding affecting this Deed of Trust, the Note or
the
Property, including probate and bankruptcy proceedings, or in
preparation
for
the commencement or defense of any proceeding or threatened suit
or
proceeding, shall be immediately due and payable by Grantor, with
interest
thereon at the Default Rate and shall be secured by this
