Exhibit 10.9
DEED OF TRUST, ASSIGNMENT OF
RENTS AND LEASES,
SECURITY AGREEMENT, FIXTURE FILING AND FINANCING
STATEMENT
[NORTHPOINT]
(This
Document Serves as a fixture filing under
Section 9.502
of the Texas Business
and Commerce Code)
Grantor’s
Organizational Identification Number: 4414045
This DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT, FIXTURE FILING AND FINANCING STATEMENT (this “
Mortgage ”), is made as of the 13th day of February,
2008, by BEHRINGER HARVARD NORTHPOINT LP, a Delaware limited
partnership (herein referred to as “ Grantor ”),
whose address is c/o Behringer Harvard Funds, 15601 Dallas Parkway,
Suite 600, Addison, Texas 75001 to PRLAP INC., a North
Carolina corporation (“ Trustee ”), for the
benefit of 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, as Administrative Agent
for the benefit of the Loan Parties.
RECITALS
A.
Behringer Harvard Opportunity OP I, LP, a Texas limited partnership
(the “ Operating Partnership ”) and certain of
its Subsidiaries, including Grantor, (the “ Subsidiary
Obligors ”) (the Operating Partnership and Subsidiary
Obligors are sometimes referred to herein, collectively, as “
Borrowers ”) may from time to time be indebted to the
Loan Parties pursuant to that certain Credit Agreement dated of
even date herewith (as modified, amended, renewed, restated or
supplemented from time to time, the “ Credit Agreement
”), among Borrowers, Administrative Agent, L/C Issuer, Swap
Bank and the Lenders (herein so called) now or hereafter made a
party thereto (Administrative Agent, L/C Issuer, Swap Bank and
Lenders, together with their respective successors and assigns, are
herein called the “ Loan Parties ”), Grantor and
the other Subsidiary Obligors from time to time made a party
thereto. The Credit Agreement evidences, in part, a
$75,000,000 loan (with an option to increase the amount of such
loan up to $150,000,000 as provided in the Credit Agreement) (the
“ Loan ”).
B.
In connection with and pursuant to the terms of the Credit
Agreement, Grantor hereby executes and delivers this Mortgage to
Administrative Agent, for the ratable behalf of the Loan
Parties.
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ARTICLE 1
Definitions; Granting Clauses; Secured
Indebtedness
Section 1.1. Principal
Secured . This Mortgage secures the aggregate principal
amount of up to ONE HUNDRED FIFTY MILLION AND NO/100 DOLLARS
($150,000,000.00), plus such additional amounts as Administrative
Agent and the other Loan Parties may from time to time advance
pursuant to the terms and conditions of this Mortgage, with respect
to an obligation secured by a lien or encumbrance prior to the lien
of this Mortgage or for the protection of the lien of this
Mortgage, together with interest thereon.
Section 1.2. Definitions
.
(a)
In addition to other terms defined herein, each of the following
terms shall have the meaning assigned to it, such definitions to be
applicable equally to the singular and the plural forms of such
terms and to all genders (all capitalized terms used herein and not
otherwise defined shall have the meanings given to such terms in
the Credit Agreement):
“ Administrative Agent ”
means Bank of America, N.A., a national banking association, as
Administrative Agent, whose address is 901 Main Street, 20th Floor,
Dallas, Texas 75202, Attention: Real Estate Loan
Administration, together with its successors and assigns in such
capacity, each acting hereunder on behalf of the Loan
Parties.
“ Debtor Relief Law ” means
any federal, state or local law, domestic or foreign, as now or
hereafter in effect relating to bankruptcy, insolvency,
liquidation, receivership, reorganization, arrangement,
composition, extension or adjustment of debts, or any similar law
affecting the right of creditors.
“
Grantor ” means Behringer Harvard Northpoint LP, a
Delaware limited partnership whose address is 15601 Dallas Parkway,
Suite 600, Addison, TX 75001 and its permitted successors and
assigns.
“ Loan ” means the loan
evidenced by the Credit Agreement and the Note.
“
Note ” means collectively, whether one or more,
(a) each Promissory Note issued by Borrowers pursuant to the
terms of the Credit Agreement, in the aggregate principal amount
not to exceed $150,000,000.00, bearing interest as therein
provided, containing a provision for, among other things, the
payment of attorneys’ fees, and (b) all other notes
given in substitution thereof or in modification, supplement,
increase, renewal or extension thereof, in whole or in part, as
provided in the Credit Agreement, whether in whole or in part or
one or more, as any or all of such notes may from time to time be
renewed, extended, supplemented, increased or modified, each
bearing interest as provided in the Credit Agreement.
Additionally, the Credit Agreement provides that the principal
balance of the Loan shall bear interest at a floating rate of
interest subject to change from time to time.
“ Trustee ” means
PRLAP, Inc. or any successor or substitute appointed and
designated as herein provided from time to time acting hereunder,
any one of whom may act alone.
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“ 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 Mortgage has the meaning given to the
term in the UCC, as in effect from time to time, when used in this
Mortgage. However, if a term is defined in Chapter 9 of the UCC
differently than in another chapter of the UCC, the term has the
meaning specified in Title 9.
Section 1.3. Granting Clause
. In consideration of the provisions of this Mortgage and the
sum of TEN DOLLARS ($10.00) cash in hand paid and other good and
valuable consideration, the receipt and sufficiency of which are
acknowledged by Grantor, to secure the obligations of Grantor under
the Loan Documents and all other matters and indebtedness
constituting the Secured Indebtedness, Grantor does hereby GRANT,
BARGAIN, SELL, CONVEY, TRANSFER, ASSIGN and SET OVER to Trustee in
trust, with the power of sale, for the benefit of Administrative
Agent, the following: all estate, right, title and interest
which Grantor now has or may hereafter acquire in and to the
following Premises, Accessories and other rights, interests and
properties, and all rights, estates, powers and privileges
appurtenant thereto (collectively, the “ Property
”):
(a)
Grantor’s right, title and interest in and to the real
property described in Exhibit A which is attached
hereto and incorporated herein by reference (the “
Land ”) together with (i) any and all buildings,
structures, improvements, alterations or appurtenances now or
hereafter situated or to be situated on the Land (collectively the
“ Improvements ”); (ii) all rights,
estates, powers, privileges and interests of whatever kind or
character appurtenant or incident to the foregoing; and
(iii) all right, title and interest of Grantor, now owned or
hereafter acquired, in and to (1) all common area and other
use rights, tenements, hereditaments, streets, roads, alleys,
easements, rights-of-way, licenses, rights of ingress and egress,
vehicle parking rights and public places, existing or proposed,
abutting, adjacent, used in connection with or pertaining or
appurtenant to any of the Land or the Improvements; (2) any
strips or gores between the Land and abutting or adjacent
properties; and (3) all options to purchase the Land or the
Improvements or any portion thereof or interest therein, and any
greater estate in the Land or the Improvements; and (4) all
water and water rights or shares of stock evidencing water rights,
timber, crops and mineral interests on or pertaining to the Land
(the Land, Improvements and other rights, titles and interests
referred to in this clause (a) being herein sometimes
collectively called the “ Premises
”);
(b)
all fixtures, equipment, systems, machinery, furniture,
furnishings, appliances, inventory, goods, building and
construction materials, supplies, 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);
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(c)
all (i) plans and specifications for the Improvements;
(ii) Grantor’s rights, but not liability for any breach
by Grantor, under all commitments (including any commitments for
financing to pay any of the Secured Indebtedness, as defined
below), insurance policies (or additional or supplemental coverage
related thereto, including from an insurance provider meeting
the requirements of the Loan Documents or from or through any state
or federal government sponsored program or entity), Swap
Transactions (as hereinafter defined), contracts and agreements for
the design, construction, operation or inspection of the
Improvements and other contracts and general intangibles (including
but not limited to payment intangibles, trademarks, trade names,
goodwill, software and symbols) related to the Premises or the
Accessories or the operation thereof; (iii) deposits and
deposit accounts arising from or related to any transactions
related to the Premises or the Accessories (including but not
limited to Grantor’s rights in tenants’ security
deposits, deposits with respect to utility services to the
Premises, and any deposits, deposit accounts or reserves hereunder
or under any other Loan Documents (hereinafter defined) for taxes,
insurance or otherwise), rebates or refunds of impact fees or other
taxes, assessments or charges, money, accounts, (including deposit
accounts), instruments, documents, promissory notes and chattel
paper (whether tangible or electronic) arising from or by virtue of
any transactions related to the Premises or the Accessories, and
any account, securities account or deposit account (including,
without limitation, reserve accounts and escrow accounts) from
which Borrowers may from time to time authorize Administrative
Agent to debit and/or credit payments due with respect to the Loan
or any Swap Transaction, all rights to the payment of money from
the counterparty under any Swap Transaction, and all accounts,
deposit accounts and general intangibles, including payment
intangibles, described in any Swap Transaction; (iv) permits,
licenses, franchises, certificates, development rights, commitments
and rights for utilities, and other rights and privileges obtained
in connection with the Premises or the Accessories;
(v) leases, rents, royalties, bonuses, issues, profits,
revenues and other benefits of the Premises and the Accessories
(without derogation of Article 3 hereof);
(vi) as-extracted collateral produced from or allocated to the
Land including, without limitation, oil, gas and other hydrocarbons
and other minerals and all products processed or obtained
therefrom, and the proceeds thereof; and (vii) engineering,
accounting, title, legal, and other technical or business data
concerning the Property, including software, which are in the
possession of Grantor or in which Grantor can otherwise grant a
security interest;
(d)
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
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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 Trustee, and its successors or substitutes in this trust, and
to its successors and assigns, in trust, forever, subject to the
terms, provisions and conditions herein set forth, to secure the
obligations of Grantor under the Credit Agreement and Loan
Documents (as hereinafter defined) and all other indebtedness and
matters defined as “Secured Indebtedness” (as
hereinafter defined).
Section 1.4. Security
Interest . Grantor hereby grants to Administrative Agent
a security interest in all of the Property which constitutes
personal property or fixtures, all proceeds and products thereof,
and all supporting obligations ancillary to or arising in any way
in connection therewith (herein sometimes collectively called the
“ Collateral ”) to secure the obligations of
Grantor under the Note, Credit Agreement and Loan Documents and all
other indebtedness and matters defined as Secured Indebtedness in
Section 1.5 of this Mortgage. In addition to its
rights hereunder or otherwise, Administrative Agent shall have all
of the rights of a secured party under the UCC, as in effect from
time to time, or under the Uniform Commercial Code in force, from
time to time, in any other state to the extent the same is
applicable law.
Section 1.5. Secured
Indebtedness, Note, Loan Documents, Other Obligations .
This Mortgage is made to secure and enforce the
payment and performance of the following promissory notes,
obligations, indebtedness, duties and liabilities and all renewals,
extensions, supplements, increases, and modifications thereof in
whole or in part from time to time (collectively the “
Secured Indebtedness ”): (a) the Note; (b)
all indebtedness, liabilities, duties, covenants, promises and
other obligations whether joint or several, direct or indirect,
fixed or contingent, liquidated or unliquidated, and the cost of
collection of all such amounts, owed by Grantor and Borrowers to
the Loan Parties, now or hereafter incurred or arising pursuant to
or permitted by the provisions of the Credit Agreement, the Note,
this Mortgage, or any other document now or hereafter evidencing,
governing, guaranteeing, securing or otherwise executed by Grantor,
the other Borrowers or Guarantor (as defined in the Credit
Agreement) for the benefit of any of the Loan Parties in connection
with the Loan and any Letter of Credit issued in connection
therewith, including but not limited to the Credit Agreement, any
L/C Obligations and Letter of Credit Application (as each terms is
defined in the Credit Agreement) issued in accordance with the
Credit Agreement, whether or not for the account or benefit of
Grantor, tri-party financing agreement, Master Agreement relating
to any Swap Transactions or other agreement between any Borrower
and Swap Bank, or among Borrowers, Administrative Agent,
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Lenders and any other Loan Parties, pertaining
to the repayment or use of the proceeds of the Loan and any L/C
Obligations (the Note, the Credit Agreement, this Mortgage, any
Master Agreement relating to any Swap Transactions and such other
documents, as they or any of them may have been or may be from time
to time renewed, extended, supplemented, increased or modified,
being herein sometimes collectively called the “ Loan
Documents ”). For purposes of this
Mortgage, the term “ Swap Transaction ” means
any agreement, whether or not in writing, entered into between any
Borrower and a Lender acceptable to the Required Lenders (such
financial institution is referred to herein as “ Swap
Bank ”) relating to any transaction entered into for the
purpose of hedging risks related to the Note that is a rate swap,
basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap or option, bond, note or bill
option, interest rate option, forward foreign exchange transaction,
cap, collar or floor transaction, currency swap, cross-currency
rate swap, swap option currency option or any other, similar
transaction (including any option to enter into any of the
foregoing) or any combination of the foregoing, and, unless the
context otherwise clearly requires, any form of master agreement
(the “ Master Agreement ”) published by the
International Swaps and Derivatives Association, Inc., or any
other master agreement, entered into between a Swap Bank and any
Borrower, together with any related schedules, as amended,
supplemented, superseded or replaced from time to time, relating to
or governing any or all of the foregoing.
ARTICLE 2
Representations, Warranties and
Covenants
Section 2.1. Grantor represents,
warrants, and covenants as follows (with respect to representations
and warranties, except as otherwise disclosed to Administrative
Agent in writing):
(a)
Payment and Performance . Grantor will make due and
punctual payment of the Secured Indebtedness. Grantor will
timely and properly perform and comply with all of the covenants,
agreements, and conditions imposed upon it by this Mortgage and the
other Loan Documents and will not permit a default to occur
hereunder or thereunder. Time shall be of the essence in this
Mortgage.
(b)
Title and Permitted Encumbrances . Grantor has, in
Grantor’s own right, and Grantor covenants to maintain,
lawful, good and indefeasible title to the Property, is lawfully
seized and possessed of the Property and every part thereof, and
has the right to convey the same, free and clear of all liens,
charges, claims, security interests, and encumbrances except for
(i) the matters, if any, set forth on Schedule B-1 of the
mortgagee policy of title insurance issued to Administrative Agent
and insuring the lien of this Mortgage, (ii) the liens and
security interests evidenced by this Mortgage, (iii) statutory
liens for real estate taxes and assessments on the Property which
are not yet delinquent, (iv) other liens and security
interests (if any) in favor of Administrative Agent and
(v) any other matters affecting the Property to which the
Administrative Agent may consent in writing, which consent may be
given in Administrative Agent’s sole discretion (the matters
described in the foregoing clauses (i), (ii), (iii), (iv), and
(v) being herein called the “ Permitted
Encumbrances ”). Grantor will warrant generally and
forever defend title to the Property, subject as aforesaid, to
Trustee and its successors or substitutes and
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assigns, against the claims and demands of all
persons claiming or to claim the same or any part thereof.
Grantor will, prior to delinquency, punctually pay, perform,
observe and keep all covenants, obligations and conditions in or
pursuant to any Permitted Encumbrance and will not modify or permit
modification of any Permitted Encumbrance without the prior written
consent of Administrative Agent. Inclusion of any matter as a
Permitted Encumbrance does not constitute approval or waiver by
Administrative Agent of any existing or future violation or other
breach thereof by Grantor, by the Property or otherwise. No
part of the Property constitutes all or any part of the principal
residence of Grantor if Grantor is an individual. If any
right or interest of Administrative Agent in the Property or any
part thereof shall be endangered or questioned or shall be attacked
directly or indirectly, Administrative Agent and Trustee, or either
of them (whether or not named as parties to legal proceedings with
respect thereto), are hereby authorized and empowered to take such
steps as in its discretion may be proper for the defense of any
such legal proceedings or the protection of such right or interest
of Administrative Agent, including but not limited to the
employment of independent counsel, the prosecution or defense of
litigation, and the compromise or discharge of adverse
claims. All expenditures so made of every kind and character
shall be a demand obligation (which obligation Grantor hereby
promises to pay owing by Grantor to Administrative Agent or Trustee
(as the case may be), and the party (Administrative Agent or
Trustee, as the case may be) making such expenditures shall be
subrogated to all rights of the person receiving such
payment.
(c)
Taxes and Other Impositions . Subject to the right to
contest same in accordance with the Loan Documents, Grantor will
pay, or cause to be paid, all taxes, assessments and other charges
or levies imposed upon or against or with respect to the Property
or the ownership, use, occupancy or enjoyment of any portion
thereof, or any utility service thereto, prior to delinquency,
including but not limited to all real estate taxes assessed against
the Property or any part thereof; and shall deliver to
Administrative Agent, within fifteen (15) days after request by
Administrative Agent, such evidence of the payment thereof as
Administrative Agent may require.
(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 Mortgage, and should any of the foregoing become
attached hereafter in any manner to any part of the Property
without the prior written consent of Administrative Agent, Grantor
will cause the same to be promptly discharged and released.
Notwithstanding the foregoing, Administrative Agent shall not
unreasonably delay or withhold its consent to financing or leasing
of certain types of office equipment, such as copiers or fax
machines, provided , that , such office equipment
(i) is readily replaceable, (ii) will not be used to
store or hold any proprietary information or information necessary
for the operation of the Improvements that is not readily available
otherwise, and (iii) the underlying lease or financing
documentation will provide Administrative Agent with notice of any
defaults of Grantor under such documentation and the opportunity,
but
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not
the obligation, to cure such defaults within a period of at least
thirty (30) days. Grantor will own all parts of the Property
and will not acquire any fixtures, equipment or other property
(including software embedded therein) forming a part of the
Property pursuant to a lease, license, security agreement or
similar agreement, whereby any party has or may obtain the right to
repossess or remove same, without the prior written consent of
Administrative Agent. If Administrative Agent consents to the
voluntary grant by Grantor of any deed of trust or mortgage, lien,
security interest, or other encumbrance (hereinafter called “
Subordinate Lien ”) covering any of the Property or if
the foregoing prohibition is determined by a court of competent
jurisdiction to be unenforceable as to a Subordinate Lien, any such
Subordinate Lien shall contain express covenants to the effect
that: (1) the Subordinate Lien is unconditionally subordinate
to this Mortgage and all Leases (as 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 shall be named as
a party defendant, and no action shall be taken that would
terminate any occupancy or tenancy without the prior written
consent of Administrative Agent; (3) Rents (as hereinafter
defined), if collected by or for the Administrative Agent of the
Subordinate Lien, shall be applied first to the payment of the
Secured Indebtedness then due and expenses incurred in the
ownership, operation and maintenance of the Property in such order
as Administrative Agent may determine, prior to being applied to
any indebtedness secured by the Subordinate Lien; (4) written
notice of default under the Subordinate Lien and written notice of
the commencement of any action (whether judicial or pursuant to a
power of sale) to foreclose or otherwise enforce the Subordinate
Lien or to seek the appointment of a receiver for all or any part
of the Property shall be given to Administrative Agent with or
promptly after the occurrence of any such default or commencement;
and (5) neither the Administrative Agent of the Subordinate
Lien, nor any purchaser at foreclosure thereunder, nor anyone
claiming by, through or under any of them shall succeed to any of
Grantor’s rights hereunder without the prior written consent
of Administrative Agent.
(e)
Further Assurances . Grantor will, within a reasonable
period of time following request of Administrative Agent,
(i) correct any defect, error or omission which may be
discovered in the contents, execution or acknowledgment of this
Mortgage or any other Loan Document; (ii) execute,
acknowledge, deliver, procure and record and/or 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 Mortgage, 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 deemed advisable by Administrative Agent in its commercially
reasonable judgment to protect the lien or the security interest
hereunder against the rights or interests of third persons; and
(iii) use best efforts to provide such certificates,
documents, reports, information, affidavits and other instruments
and do such further acts as may be necessary, desirable or proper
in the reasonable determination of Administrative Agent to enable
Administrative Agent to comply with the requirements or requests of
any agency having jurisdiction over Administrative Agent or any
examiners of such agencies with respect to the indebtedness secured
hereby, Grantor or the Property. Grantor shall pay all costs
connected
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with any of the foregoing, which shall be a
demand obligation owing by Grantor (which Grantor hereby promises
to pay) to Administrative Agent pursuant to this
Mortgage.
(f)
Indemnification .
(i)
Grantor will indemnify and hold harmless the Loan Parties and
Trustee from and against, and reimburse them on demand for, any and
all Indemnified Matters (hereinafter defined). WITHOUT
LIMITATION, THE FOREGOING INDEMNITIES SHALL APPLY TO EACH
INDEMNIFIED PERSON WITH RESPECT TO MATTERS WHICH IN WHOLE OR IN
PART ARE CAUSED BY OR ARISE OUT OF, OR ARE CLAIMED TO BE
CAUSED BY OR ARISE OUT OF, THE NEGLIGENCE (WHETHER SOLE,
COMPARATIVE OR CONTRIBUTORY) OR STRICT LIABILITY OF SUCH (AND/OR
ANY OTHER) INDEMNIFIED PERSON. HOWEVER, SUCH INDEMNITIES
SHALL NOT APPLY TO A PARTICULAR INDEMNIFIED PERSON TO THE EXTENT
THAT THE SUBJECT OF THE INDEMNIFICATION IS CAUSED BY OR ARISES OUT
OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THAT INDEMNIFIED
PERSON. Any amount to be paid under this paragraph
(f) by Grantor to the Loan Parties and/or Trustee shall be a
demand obligation owing by Grantor (which Grantor hereby promises
to pay) to the Loan Parties and/or Trustee pursuant to this
Mortgage. Upon demand by Administrative Agent, Grantor shall
diligently defend any Indemnified Matter which affects the Property
or is made or commenced against the Loan Parties, whether alone or
together with Grantor or any other person, all at Grantor’s
own cost and expense and by counsel to be approved by
Administrative Agent in the exercise of its reasonable
judgment. In the alternative, at any time Administrative
Agent may elect to conduct its own defense through counsel selected
by Administrative Agent and at the cost and expense of
Grantor. Nothing in this paragraph, elsewhere in this
Mortgage or in any other Loan Document shall limit or impair any
rights or remedies of the Loan Parties and/or Trustee (including
without limitation any rights of contribution or indemnification)
against Grantor or any other person under any other provision of
this Mortgage, any other Loan Document, any other agreement or any
applicable Legal Requirement.
(ii)
For purposes of this subparagraph (f), the term “ Loan
Parties ” shall include the Loan Parties and the
directors, officers, partners, employees and agents of each of the
Loan Parties or Trustee, respectively, and any persons owned or
controlled by, owning or controlling, or under common control or
affiliated with the Loan Parties or Trustee, respectively
. As used herein, the term “ Indemnified
Matters ” means any and all claims, demands, liabilities
(including strict liability), losses, damages (including
consequential damages), causes of action, judgments, penalties,
fines, costs and expenses (including without limitation, reasonable
fees and expenses of attorneys and other professional consultants
and experts, and of the investigation and defense of any claim,
whether or not such claim is ultimately withdrawn or defeated, and
the settlement of any claim or judgment including all value paid or
given in settlement) of every kind, known or unknown, foreseeable
or unforeseeable, which may be imposed upon, asserted
against
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or incurred or paid by
any of the Loan Parties and/or Trustee at any time and from time to
time, whenever imposed, asserted or incurred, because of, resulting
from, in connection with, or arising out of any transaction, act,
omission, event or circumstance in any way connected with the
Property or with this Mortgage or any other Loan Document,
including but not limited to any bodily injury or death or property
damage occurring in or upon or in the vicinity of the Property
through any cause whatsoever at any time on or before the Release
Date (hereinafter defined) any act performed or omitted to be
performed hereunder or under any other Loan Document, any breach by
Grantor of any representation, warranty, covenant, agreement or
condition contained in this Mortgage or in any other Loan Document,
any default as defined herein, any claim under or with respect to
any Lease. The term “ Release Date ” as
used herein means the earlier of the following two dates:
(i) the date on which the indebtedness and obligations secured
by this Mortgage have been paid and performed in full and the
Mortgage has been released; or (ii) the date on which the lien
of the Mortgage is fully and finally foreclosed or a conveyance by
deed in lieu of such foreclosure is fully and finally effective and
possession of the Property has been given to and accepted by the
purchaser or grantee free of occupancy and claims to occupancy by
Grantor and its successors and assigns; provided that, if such
payment, performance, release, foreclosure or conveyance is
challenged, in bankruptcy proceedings or otherwise, the Release
Date shall be deemed not to have occurred until such challenge is
validly released, dismissed with prejudice or otherwise barred by
law from further assertion. The indemnities in this paragraph
(f) shall not terminate upon the Release Date or upon the
release, foreclosure or other termination of this Mortgage but will
survive the Release Date, foreclosure of this Mortgage or
conveyance in lieu of foreclosure, the repayment of the Secured
Indebtedness the termination of any and all Swap Transactions, the
discharge and release of this Mortgage and the other Loan
Documents, any bankruptcy or other debtor relief proceeding, and
any other event whatsoever.
(g)
Taxes on Note or Mortgage . Grantor will promptly pay
all income, franchise and other taxes owing by Grantor and any
stamp, documentary, recordation and transfer taxes or other similar
taxes (unless such payment by Grantor is prohibited by law) which
may be required to be paid with respect to the Loan, this Mortgage
or any other instrument evidencing or securing any of the Secured
Indebtedness. In the event of the enactment after this date
of any law of any governmental entity applicable to the Loan
Parties, the Loan, the Property or this Mortgage deducting from the
value of property for the purpose of taxation any lien or security
interest thereon, or imposing upon the Loan Parties the payment of
the whole or any part of the taxes or assessments or charges or
liens herein required to be paid by Grantor, or changing in any way
the laws relating to the taxation of deeds of trust or mortgages or
security agreements or debts secured by deeds of trust or mortgages
or security agreements or the interest of the mortgagee or secured
party in the property covered thereby, or the manner of collection
of such taxes, so as to affect this Mortgage or the Secured
Indebtedness or the Loan Parties, then, and in any such event,
Grantor, upon demand by Administrative Agent, shall pay such taxes,
assessments, charges or liens, or reimburse the Loan Parties
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
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maximum amount permitted by law, then and in
such event, the Required Lenders may elect, by notice in writing
given to Grantor, to declare all of the Secured Indebtedness to be
and become due and payable ninety (90) days from the giving of such
notice.
Section 2.2. Performance by
Administrative Agent on Grantor’s Behalf . Grantor
agrees that, if Grantor fails to perform any act or to take any
action which under this Mortgage Grantor is required to perform or
take, or to pay any money which under this Mortgage Grantor is
required to pay, and such failure constitutes an Event of Default
under this Mortgage, then Administrative Agent, in Grantor’s
name or its own name, may (but shall not be obligated to) perform
or cause to be performed such act or take such action or pay such
money, and any expenses so incurred by Administrative Agent and any
money so paid by Administrative Agent shall be a demand obligation
owing by Grantor to Administrative Agent (which obligation Grantor
hereby promises to pay), shall be a part of the Secured
Indebtedness, and Administrative Agent, upon making such payment,
shall be subrogated to all of the rights of the person, entity or
body politic receiving such payment. Administrative Agent and
its designees shall have the right to enter upon the Property at
any time and from time to time for any such purposes. No such
payment or performance by Administrative Agent shall waive or cure
any default or waive any right, remedy or recourse of
Administrative Agent. Any such payment may be made by
Administrative Agent in reliance on any statement, invoice or claim
without inquiry into the validity or accuracy thereof. Each
amount due and owing by Grantor to Administrative Agent pursuant to
this Mortgage shall bear interest, from the date such amount
becomes due until paid, at the rate per annum provided in the
Credit Agreement for interest on past due principal owed on the
Loan, which interest shall be payable to Administrative Agent on
demand; and all such amounts, together with such interest thereon,
shall automatically and without notice be a part of the Secured
Indebtedness. The amount and nature of any expense by
Administrative Agent hereunder and the time when paid shall be
fully established by the certificate of Administrative Agent or any
of Administrative Agent’s officers or agents.
Section 2.3. Absence of
Obligations of Administrative Agent with Respect to Property
. Notwithstanding anything in this Mortgage to the contrary,
including, without limitation, the definition of
“Property” and/or the provisions of
Article 3 hereof, (i) to the extent permitted by
applicable law, the Property is composed of Grantor’s rights,
title and interests therein but not Grantor’s obligations,
duties or liabilities pertaining thereto, (ii) Administrative
Agent neither assumes nor shall have any obligations, duties or
liabilities in connection with any portion of the items described
in the definition of “Property” herein, either prior to
or after obtaining title to such Property, whether by foreclosure
sale, the granting of a deed in lieu of foreclosure or otherwise,
and (iii) Administrative Agent may, at any time prior to or
after the acquisition of title to any portion of the Property as
above described, advise any party in writing as to the extent of
Administrative Agent’s interest therein and/or expressly
disaffirm in writing any rights, interests, obligations, duties
and/or liabilities with respect to such Property or matters related
thereto. Without limiting the generality of the foregoing, it
is understood and agreed that Administrative Agent shall have no
obligations, duties or liabilities prior to or after acquisition of
title to any portion of the Property, as lessee under any lease or
purchaser or seller under any contract or option unless
Administrative Agent elects otherwise by written
notification.
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Section 2.4. Authorization to
File Financing Statements; Power of Attorney . Grantor
hereby authorizes Administrative Agent at any time and from time to
time to file any initial financing statements, amendments thereto
and continuation statements as authorized by applicable law,
required by Administrative Agent to establish or maintain the
validity, perfection and priority of the security interests granted
in this Mortgage. For purposes of such filings, Grantor
agrees to furnish any information requested by Administrative Agent
promptly upon request by Administrative Agent. Grantor also
ratifies its authorization for Administrative Agent to have filed
any like initial financing statements, amendments thereto or
continuation statements if filed prior to the date of this
Mortgage. Grantor hereby irrevocably constitutes and appoints
Administrative Agent and any officer or agent of Administrative
Agent, with full power of substitution, as its true and lawful
attorneys-in-fact with full irrevocable power and authority in the
place and stead of Grantor or in Grantor’s own name to
execute in Grantor’s name any such documents and to otherwise
carry out the purposes of this Section 2.4 , to the
extent that Grantor’s authorization above is not
sufficient. To the extent permitted by law, Grantor hereby
ratifies all acts said attorneys-in-fact shall lawfully do or cause
to be done in the future by virtue hereof. This power of
attorney is a power coupled with an interest and shall be
irrevocable.
ARTICLE 3
Assignment of Rents and
Leases
Section 3.1. Assignment .
(a)
As additional security for the making of the Loan by Administrative
Agent, Grantor has executed of even date with this Mortgage, that
certain Assignment of Leases and Rents (the “
Assignment ”), which Assignment will be recorded in
the real property records in the county where the Property is
located, which is incorporated herein by reference and contains
other rights of Administrative Agent and the Loan Parties in the
Rents and Leases (defined below).
(b)
Confirming all of the representations, warranties, covenants and
agreements contained in the Assignment, all of which are
incorporated herein by reference, Grantor hereby absolutely assigns
to Administrative Agent, for the benefit of the Loan Parties, all
Rents (hereinafter defined) and all of Grantor’s rights in
and under all Leases (hereinafter defined). So long as no
Event of Default (hereinafter defined) has occurred and is
continuing, Grantor shall have a license (which license shall
terminate automatically and without further notice upon the Event
of Default) to collect, but not prior to accrual, the Rents under
the Leases and, where applicable, subleases, such Rents to be held
in trust for Administrative Agent, for the benefit of the Loan
Parties, and to otherwise deal with all Leases as permitted by this
Mortgage. Each month, provided no Event of Default has
occurred and is continuing, Grantor may retain such Rents as were
collected that month; provided , however , that all
Rents collected by Grantor shall be first applied to pay costs and
expenses associated with the ownership, maintenance, development,
operating, and marketing of the Property, including all amounts
then required to be paid under the Loan Documents, before using or
applying such Rents for any other purpose. Upon the
revocation of such license, all Rents shall be paid directly to
Administrative Agent and
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not through Grantor,
all without the necessity of any further action by Administrative
Agent, including, without limitation, any action to obtain
possession of the Land, Improvements or any other portion of the
Property or any action for the appointment of a
receiver.
(c)
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 an Event of
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 the occurrence of and during the continuation of an Event of
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 or
sums due hereunder or under the Loan Documents or to expenses of
operating and maintaining the Property (including reasonable
re
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