EXHIBIT 10.4


 


DEED OF TRUST,  SECURITY AGREEMENT, 


FIXTURE FILING AND FINANCING STATEMENT


 


THIS DEED OF TRUST SECURES FUTURE ADVANCES AND FUTURE OBLIGATIONS AND
IS GOVERNED BY SECTION 443.055 OF THE REVISED STATUTES OF THE STATE OF
MISSOURI, AS AMENDED FROM TIME TO TIME. THIS DEED OF TRUST SECURES THE PAYMENT
OF PRINCIPAL, INTEREST AND OTHER OBLIGATIONS AS PROVIDED HEREIN AND PERMITTED
BY SECTION 443.055. THE FACE AMOUNT OF THIS DEED OF TRUST $145,000,000.00.


 


THIS DEED OF TRUST, SECURITY AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT (this “Deed
of Trust”) is made this 15th day of November, 2007, by
The Private Residences, LLC, a Delaware limited liability company (“Grantor”),
whose address is 15601 Dallas Parkway, Suite 600, Addison, Texas 75001, in
favor of Trustee for the benefit of Bank of America, N.A., a national banking
association (“Administrative Agent”), whose address is 901 Main Street,
20th Floor, Dallas, Texas 75202, Attention:  Real Estate Loan Administration, on behalf of
itself and the other Lenders.


 


ARTICLE 1


Definitions; Granting Clauses; Secured
Indebtedness


 


Section 1.1. Principal Secured. This Deed of Trust secures
the aggregate principal amount of One Hundred Forty-Five Million and No/100
Dollars ($145,000,000.00), plus such additional  amounts as Lender may from time to time advance pursuant
to the terms and conditions of this Deed of Trust, with respect to an
obligation secured by a lien or encumbrance prior to the lien of this Deed of
Trust or for the protection of the lien of this Deed of Trust, together with
interest thereon.


 


Section 1.2.                                  Definitions.


 


(a)                                  In
addition to other terms defined herein, each of the following terms shall have
the meaning assigned to it, such definitions to be applicable equally to the
singular and the plural forms of such terms and to all genders (all capitalized
terms used herein and not otherwise defined shall have the meanings given to
such terms in the Loan Agreement):


 


“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 other Lenders.


 


DEED OF TRUST, SECURITY AGREEMENT, FIXTURE
FILING AND FINANCING STATEMENT - Page 1


 

















 


“Common Elements” means all of the
Condominium Property other than the Units which is designated in the
Condominium Declaration for the use and benefit of the owners of one or more
Units.


 


“Condominium Act” means the Uniform Condominium
Act of the State of Missouri (Sections 448.1-101 to 448.4-120 of the Revised
Statutes of Missouri), as amended from time to time.


 


“Condominium Association” means
collectively, the Master Condominium Association and the Residential
Association.


 


“Condominium Declaration” means
collectively, the Master Condominium Declaration and the Residential
Condominium Declaration.


 


“Condominium Property” means all the
land, property or properties and space comprising the Land, all improvements
and structures erected, constructed or contained therein or thereon, including
the building and all easements, rights and appurtenances belonging thereto, and
all fixtures and equipment intended for the mutual use, benefit or enjoyment of
the unit owners, submitted to the provisions of the Condominium Act.


 


“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.


 


“Development Agreement” means that
certain Development Agreement (Residential Condominium Project) by and between
Grantor and IFC, Inc., a Missouri corporation dated as of December 1,
2006, as amended from time to time.


 


“Event of Default” has the meaning set
forth in Section 4.1 of this Deed of Trust


 


“Grantor” means The Private
Residences, LLC, a Delaware limited liability company, whose address is 15601
Dallas Parkway, Suite 600, Addison, Texas 75001, and its permitted
successors and assigns.


 


“Hotel Loan” means that certain
acquisition and renovation loan from Lenders to Chase Park Plaza Hotel, LLC, a
Delaware limited liability company (“Hotel Borrower”), in the maximum
principal amount of $86,200,000.


 


“Hotel Loan Agreement” means that
certain Construction Loan Agreement dated of even date herewith, executed by
Hotel Borrower, Administrative Agent, Syndication Agent and any Lender now or
hereafter made a party thereto, as the same may from time to time be
renewed, extended, supplemented, increased or modified.


 


“Hotel Loan Documents” means the Hotel
Loan Agreement, any and all notes, deed of trust, guaranty, financing
statements, and other documents, instruments or agreements evidencing, securing
or pertaining to the Hotel Loan as shall, from time to 


 

















 


time, be executed and/or delivered by Hotel Borrower or any other party
to Administrative Agent, for the benefit of the Lenders, as they may be
amended, modified, restated, replaced and supplemented from time to time.


 


“Hotel Loan Note” means, collectively,
whether one or more, (a) each Promissory Note issued by Hotel Borrower
pursuant to the terms of the Hotel Loan Agreement, in the aggregate principal
amount of up to $86,200,000.00, 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 Hotel Loan Agreement, whether in whole or in part or one
or more, as any or all of such notes may from time to time be renewed,
extended, supplemented, increased or modified, each bearing interest as
provided in the Hotel Loan Agreement. Additionally, the Hotel Loan Agreement
provides that the principal balance of the Hotel Loan shall bear interest at a
floating rate of interest subject to change from time to time.


 


“Interstate Land Sales Act” means the
Interstate Land Sales Full Disclosure Act, 15 U.S.C. §1701 et seq., and the rules and
regulations promulgated thereunder from time to time.


 


“Leases”  Any and all future leases, subleases (to the
extent of Grantor’s rights thereunder) or other agreements 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 all extensions, renewals, modifications
and replacements of each such lease, sublease, or agreement, whether or not in
writing, providing for the use, enjoyment or occupancy of all or any part of
Property in which Grantor is the lessor thereunder, together with any
extension, renewal or replacement of the same, whether entered into before or
after the filing by or against Grantor of any petition for relief under the
Bankruptcy Code.


 


“Loan” means the construction loan
evidenced by the Loan Agreement and the Note.


 


“Loan Agreement” means that certain
Construction Loan Agreement dated of even date herewith, executed by and
between Grantor, Administrative Agent, Syndication Agent and any Lender now or
hereafter made a party thereto, as the same may from time to time be
renewed, extended, supplemented, increased or modified.


 


“Master Condominium Association” means
Park Plaza Master Condominium Association, a Missouri non-profit corporation,
created to serve as the condominium owner’s association pursuant to the
requirements of the Condominium Act.


 


“Master Condominium By-laws” means the
bylaws pertaining to the formation, management and operation of the Master
Condominium Association


 


“Master Condominium Declaration” means
that certain Master Declaration of Condominium dated effective as of December 1,
2006 executed by Kingsdell, L.P., a 


 

















 


Delaware limited partnership as declarant and recorded in Book
12082006, Page 0378 in the Office of the Recorder of Deeds for the City of
St. Louis, Missouri, as the same may from time to time be amended,
restated, supplemented, or modified.


 


“Note” means, collectively, whether
one or more, (a) each Promissory Note issued by Grantor pursuant to the
terms of the Loan Agreement, in the aggregate principal amount of up to
$58,800,000.00, 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 Loan
Agreement, whether in whole or in part or one or more, as any or all of
such notes may from time to time be renewed, extended, supplemented,
increased or modified, each bearing interest as provided in the Loan Agreement.
Additionally, the Loan Agreement provides that the principal balance of the
Loan shall bear interest at a floating rate of interest subject to change from
time to time.


 


“Residential Condominium Association”
means Park Plaza Residential Condominium Association, a Missouri non-profit
corporation, created to serve as the condominium owner’s association pursuant
to the requirements of the Condominium Act.


 


“Residential Condominium By-laws”
means the bylaws pertaining to the formation, management and operation of the
Residential Condominium Association.


 


“Residential Condominium Declaration”
means that certain Declaration of Condominium executed by Grantor as declarant
and recorded or to be recorded in the Office of the Recorder of Deeds for the
City of St. Louis, Missouri, as the same may from time to time be amended,
restated, supplemented, or modified


 


“Syndication Agent” means National
City Bank, a national banking association.


 


“Trustee” means PRLAP, Inc. or
any successor or substitute appointed and designated as herein provided from
time to time acting hereunder, any one of whom may act alone.


 


“UCC” means the Missouri Uniform Commercial
Code, as amended from time to time.


 


“Unit” means the condominium units or
sub-units created by the Condominium Declaration and owned by Grantor as of the
date of this Deed of Trust.


 


(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 the UCC, as
in effect from time to time, when used in this Deed of Trust. However, if a
term is defined in Article 9 of the UCC differently than in another article of
the UCC, the term has the meaning specified in Article 9.


 

















 


Section 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, 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, AND CONFIRM, TRANSFER, ASSIGN and SET OVER to Trustee in trust,
for the benefit of Administrative Agent, with power of sale and right of entry
and possession the following:  all
estate, right, title and interest which Grantor now has or may hereafter
acquire in and to the following Premises, Accessories and other rights,
interests and properties, and all rights, estates, powers and privileges
appurtenant thereto (collectively, the “Property”):


 


(a)                                  Grantor’s
right, title and interest in and to the real property described in Exhibit A
which is attached hereto and incorporated herein by reference (the “Land”)
together with (i) any and all buildings, structures, improvements,
alterations or appurtenances now or hereafter situated or to be situated on the
Land (collectively the “Improvements”); (ii) all rights, estates,
powers, privileges and interests of whatever kind or character appurtenant or
incident to the foregoing; and (iii) all right, title and interest of
Grantor, now owned or hereafter acquired, in and to (1) all common area
and other use rights, tenements, hereditaments, streets, roads, alleys,
easements, rights-of-way, licenses, rights of ingress and egress, vehicle
parking rights and public places, existing or proposed, abutting, adjacent,
used in connection with or pertaining or appurtenant to any of the Land or the
Improvements; (2) any strips or gores between the Land and abutting or
adjacent properties; and (3) all options to purchase the Land or the
Improvements or any portion thereof or interest therein, and any greater estate
in the Land or the Improvements; and (4) all water and water rights or
shares of stock evidencing water rights, timber, crops and mineral interests on
or pertaining to the Land (the Land, Improvements and other rights, titles and
interests referred to in this clause (a) being herein sometimes
collectively called the “Premises”);


 


(b)                                 all
fixtures, equipment, systems, machinery, furniture, furnishings, appliances,
inventory, goods, building and construction materials, supplies, elevator
fixtures, inventory and goods, inventory and articles of personal property and
accessions thereof and renewals, replacements thereof and substitutions therefor
(including, but not limited to, beds, bureaus, chiffonniers, chests, chairs,
desks lamps, mirrors, bookcases, tables, rugs, carpeting, drapes, draperies,
curtains, shades, venetian blinds, screens, paintings, hangings, pictures,
divans, couches, luggage carts, luggage racks, stools, sofas, chinaware,
linens, pillows, blankets, glassware, silverware, foodcarts, cookware, dry
cleaning facilities, dining room wagons, keys or other entry systems,
bars, bar fixtures, liquor and other drink dispensers, icemakers, radios,
television sets, intercom and paging equipment, electric and electronic
equipment, dictating equipment, private telephone systems, medical equipment,
potted plants, heating, lighting and plumbing fixtures, fire prevention and
extinguishing apparatus, cooling and air-conditioning systems, elevators,
escalators, fittings, plants, stoves, ranges, refrigerators, laundry machines,
tools, machinery, engines, dynamos, motors, boilers, incinerators,
switchboards, conduits, compressors, vacuum cleaning systems, floor cleaning,
waxing and polishing equipment, call systems, brackets, electrical signs,
bulbs, bells, ash and fuel, conveyors, cabinets, lockers, shelving,
spotlighting equipment, dishwashers, garbage disposals, washers and dryers),
other customary hotel equipment and other articles of personal property, of
every kind and character, 


 

















 


tangible and
intangible (including software embedded therein), now owned or hereafter
acquired by Grantor, which are now or hereafter attached to or situated in, on
or about the Land or the Improvements, or used in or necessary to the complete
and proper planning, development, use, occupancy or operation thereof, or
acquired (whether delivered to the Land or stored elsewhere) for use or
installation in or on the Land or the Improvements, and all renewals and
replacements of, substitutions for and additions to the foregoing (the
properties referred to in this clause (b) being herein sometimes
collectively called the “Accessories,” all of which are hereby declared
to be permanent accessions to the Land);


 


(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, all other agreements, utility contracts,
maintenance agreements, franchise agreements, management agreements, service
contracts, supply contracts, operating contracts, permits (including building
and occupancy permits), approvals, licenses (including to the extent required
by applicable law liquor and other alcoholic beverage licenses) certificates
and entitlements in any way relating to the development, construction, use,
occupancy, operation, maintenance, enjoyment, or ownership of the Land or the
Improvements; (iii) deposits and deposit accounts arising from or related
to any transactions related to the Premises or the Accessories (including but
not limited to Grantor’s rights in tenants’ security deposits, deposits with
respect to utility services to the Premises, and any deposits, deposit accounts
or reserves hereunder or under any other Loan Documents (hereinafter defined)
for taxes, insurance or otherwise), rebates or refunds of impact fees or other
taxes, assessments or charges, money, accounts, (including deposit accounts),
instruments, documents, promissory notes and chattel paper (whether tangible or
electronic) arising from or by virtue of any transactions related to the
Premises or the Accessories, and any account, securities account or deposit
account (including, without limitation, reserve accounts and escrow accounts)
from which Grantor may from time to time authorize Administrative Agent to
debit and/or credit payments due with respect to the Loan or any Swap
Transaction, all rights to the payment of money from the counterparty under any
Swap Transaction, and all accounts, deposit accounts and general intangibles,
including payment intangibles, described in any Swap Transaction; (iv) permits,
licenses, franchises, certificates, development rights, commitments and rights
for utilities, and other rights and privileges obtained in connection with the
Premises or the Accessories; (v) leases, rents, royalties, bonuses,
issues, profits, revenues and other benefits of the Premises and the
Accessories; (vi) as-extracted collateral produced from or allocated to
the Land including, without limitation, oil, gas and other hydrocarbons and
other minerals and all products processed or obtained therefrom, and the
proceeds thereof; and (vii) engineering, accounting, title, legal, and
other technical or business data concerning the Property, including software,
which are in the possession of Grantor or in which Grantor can otherwise grant
a security interest;


 

















 


(d)                                 any
all rights and appurtenances to the Units, including any interest in the Common
Elements, if any, established by the Condominium Declaration, together with any
and all rights (but not the obligations or liabilities) of Grantor arising by
virtue of the Condominium Declaration, whether as an owner of the Units or
Declarant (as such term is defined in the Condominium Declaration), including
the right to vote, as provided in the Condominium Declaration;


 


(e)                                          all
rights, titles, estates, interests and privileges which Grantor has or may have
(collectively, the “Contract Rights”) with respect to any contracts or
agreements now or hereafter executed by Grantor (each a “Unit Sales Contract”)
regarding the sale by Grantor of a Unit including, without limitation, (A) all
of Grantor’s rights in and to (i) all earnest money and escrow deposits
made by any purchaser under such Unit Sales Contract (collectively, “Earnest
Money Deposits”); and (ii) any loan commitment, guaranty, letter of
credit, or other financial obligation made by a third party with respect to the
payment of any sums owed to Grantor under such Unit Sales Contract, and (B) the
right to amend and supplement the Unit Sales Contract and to waive any material
obligation or duty thereunder, and the right to terminate and extend the Unit
Sales Contract;


 


(f)                                            all
(i) rights of Grantor as Declarant under the Condominium Declaration, if
any, to the fullest extent the foregoing rights arise from or relate to, either
directly or indirectly, the Condominium Property and (ii) voting rights of
Grantor (including, but not limited to all voting rights in the Condominium
Association) as the owner of any of the Condominium Property; and


 


(g)                                         all
(i) accounts and proceeds (cash or non-cash and including payment
intangibles) of or arising from the properties, rights, titles and interests
referred to above in this Section 1.3, including but not limited to
proceeds of any sale, lease or other disposition thereof, proceeds of each
policy of insurance (or additional or supplemental coverage related thereto,
including from an insurance provider meeting the requirements of the Loan
Documents or from or through any state or federal government sponsored program
or entity) relating thereto (including premium refunds), proceeds of the taking
thereof or of any rights appurtenant thereto, including change of grade of
streets, curb cuts or other rights of access, by condemnation, eminent domain
or transfer in lieu thereof for public or quasi-public use under any law, and
proceeds arising out of any damage thereto; (ii) all letter-of-credit
rights (whether or not the letter of credit is evidenced by a writing) Grantor
now has or hereafter acquires relating to the properties, rights, titles and
interests referred to in this Section 1.3; (iii) all
commercial tort claims Grantor now has or hereafter acquires relating to the
properties, rights, titles and interests referred to in this Section 1.3;
(iv) interest of Grantor in and to the proceeds from the sale of those
certain tax credits now or hereafter granted or issued to Grantor or its
members through or in connection with the Missouri Historic Preservation Tax
Credit Program and other applicable law and related to the Property; (v) all
right, title and interest of Grantor in, to, and under the Development
Agreement, and (vi) 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 Loan Agreement and Loan Documents
(as hereinafter defined) and all other indebtedness and matters defined as “Secured
Indebtedness” (as hereinafter defined) upon this special trust:  that should the Secured Indebtedness be paid
according to the tenor and effect thereof when the same shall be due and
payable and should Grantor timely and fully discharge its obligations hereunder
and under the other Loan Documents (other than surviving indemnity obligations
as to which no claims are then pending), then the Property shall be reconveyed
to Grantor or the title thereto shall be revested according to the provisions
of law.


 


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, Loan Agreement and Loan
Documents 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. This Deed of Trust secures
an obligation incurred for the construction of an improvement on the Land and
as such constitutes a “construction mortgage” under Section 400.99-334(h) Revised
Statutes of Missouri.


 


Section 1.5. Secured Indebtedness, Note, Loan Documents, Other
Obligations. This Deed of Trust 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
to Lenders now or hereafter incurred or arising pursuant to or permitted by the
provisions of the Loan Agreement, the Note, this Deed of Trust, or any other
document now or hereafter evidencing, governing, guaranteeing, securing or
otherwise executed by Grantor or Guarantor for the benefit of Administrative
Agent and/or the Lenders in connection with the Loan, including but not limited
to any loan or loan agreement, letter of credit or reimbursement agreement, tri-party
financing agreement, Master Agreement relating to any Swap Transactions or
other agreement between Grantor and Administrative Agent, or among Grantor,
Administrative Agent and any other party or parties, pertaining to the
repayment or use of the proceeds of the Loan (the Note, the Loan Agreement,
this Deed of Trust, 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”); and (c) the
Hotel Loan, including 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 Lenders now or hereafter incurred or
arising pursuant to or permitted by the provisions of the Hotel Loan Agreement
and the other Hotel Loan Documents. The term “Swap Transaction” means
any agreement, whether or not in writing, entered into between Grantor and with
a Lender acceptable to the Required Lenders (such financial institution is
referred to herein as “Swap Bank”) relating to any transaction that is a
rate swap, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap or option, bond, note or bill option,
interest rate option, forward foreign exchange transaction, cap, collar or
floor transaction, currency swap, cross-currency rate swap, swap option
currency option or any other, similar transaction (including any option to
enter into any of the foregoing) or any combination of the foregoing, and,
unless the context otherwise clearly requires, any form of master
agreement (the “Master Agreement”) published by the International Swaps
and Derivatives Association, Inc., or any other master agreement, entered
into between a Swap Bank and Grantor, 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 Deed of
Trust and the other Loan Documents and will not permit a default to occur
hereunder or thereunder. Time shall be of the essence in this Deed of Trust.


 


(b)                                 Title
and Permitted Encumbrances. Grantor has, in Grantor’s own right, and
Grantor covenants to maintain, lawful, good and marketable 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 Deed of
Trust, (ii) the liens and security interests evidenced by this Deed of
Trust, (iii) statutory liens for real estate taxes and assessments on the
Property which are not yet delinquent, (iv) other liens and security
interests (if any) in favor of Administrative Agent and (v) any other
matters affecting the Property to which the Administrative Agent may consent
in writing, which consent may be given in Administrative Agent’s sole
discretion (the matters described in the foregoing clauses (i), (ii), (iii),
(iv), and (v) being herein called the “Permitted Encumbrances”). Grantor
will warrant generally and forever defend title to the Property, subject as
aforesaid, to Trustee and its successors or substitutes and assigns, against
the claims and demands of all persons claiming or


 

















 


to claim the
same or any part thereof. Grantor will, prior to delinquency, punctually
pay, perform, observe and keep all covenants, obligations and conditions in or
pursuant to any Permitted Encumbrance and will not modify or permit
modification of any Permitted Encumbrance without the prior written consent of
Administrative Agent. Inclusion of any matter as a Permitted Encumbrance does
not constitute approval or waiver by Administrative Agent of any existing or
future violation or other breach thereof by Grantor, by the Property or
otherwise. No part of the Property constitutes all or any part of the
principal residence of Grantor if Grantor is an individual. If any right or
interest of Administrative Agent in the Property or any part thereof shall
be endangered or questioned or shall be attacked directly or indirectly,
Administrative Agent and Trustee, or either of them (whether or not named as
parties to legal proceedings with respect thereto), are hereby authorized and
empowered to take such steps as in its discretion may be proper for the
defense of any such legal proceedings or the protection of such right or
interest of Administrative Agent, including but not limited to the employment
of independent counsel, the prosecution or defense of litigation, and the
compromise or discharge of adverse claims. All expenditures so made of every
kind and character shall be a demand obligation (which obligation Grantor
hereby promises to pay owing by Grantor to Administrative Agent or Trustee (as
the case may be), and the party (Administrative Agent or Trustee, as the
case may be) making such expenditures shall be subrogated to all rights of
the person receiving such payment.


 


(c)                                  Taxes
and Other Impositions. Grantor will pay, or cause to be paid, all taxes,
assessments and other charges or levies imposed upon or against or with respect
to the Property or the ownership, use, occupancy or enjoyment of any portion
thereof, or any utility service thereto, prior to delinquency, including but not
limited to all real estate taxes assessed against the Property or any part thereof,
(including assessments under the Condominium Declaration); and shall deliver to
Administrative Agent, within fifteen (15) days after request by Administrative
Agent, such evidence of the payment thereof as Administrative Agent may require.


 


(d)                                 Insurance;
Use of Insurance Proceeds. Grantor shall obtain and maintain at Grantor’s
sole expense: (1) mortgagee title insurance issued to Administrative Agent
covering the Premises as required by Administrative Agent without exception for
mechanics’ liens; (2) property insurance with respect to all insurable
Property, against loss or damage by fire, lightning, windstorm, explosion,
hail, tornado and such additional hazards as are presently included in Special Form (also
known as “all-risk”) coverage and against any and all acts of terrorism and
such other insurable hazards as Administrative Agent may require, in an
amount not less than 100% of the full replacement cost, including the cost of
debris removal, without deduction for depreciation and sufficient to prevent
Grantor and Administrative Agent from becoming a coinsurer, such insurance to
be in “builder’s risk” completed value(non-reporting) form during and with
respect to any construction on the Premises; (3) if and to the extent any
portion of the Improvements is, under the Flood Disaster Protection Act of 1973
(“FDPA”), as it may be amended from time to time, in a Special
Flood Hazard Area, within a Flood Zone designated A or V in a participating
community, a flood insurance policy in an amount required by Administrative
Agent, but in no event less than the amount sufficient to meet the requirements
of applicable law and the FDPA, as such requirements may from time to time
be in effect; (4) general liability insurance, on an “occurrence” basis
against claims for “personal injury” liability, including bodily injury, death
or property damage liability, insurance, including 


 

















 


“Dram Shop” or
other liquor liability coverage if alcoholic beverages are sold from or may be
consumed at the Property, for the benefit of Grantor as named insured and
Administrative Agent as additional insured; (5) statutory workers’
compensation insurance with respect to any work on or about the Premises (including
employer’s liability insurance, if required by Administrative Agent), covering
all employees of Grantor and any contractor; to the extent such coverage is
covered by the contractor or subcontractor on behalf of Grantor, Administrative
Agent will accept such coverage on behalf of Grantor upon receipt of evidence
of such coverage; (6) if there is a general contractor, commercial general
liability insurance, including products and completed operations coverage, and
in other respects similar to that described in clause (4) above, for
the benefit of the general contractor as named insured and Grantor and
Administrative Agent as additional insureds, in addition to statutory workers’
compensation insurance with respect to any work on or about the Premises (including
employer’s liability insurance, if required by Administrative Agent), covering
all employees of the general contractor and any contractor; (7) blanket
fidelity bond and errors and omissions (to the extent not covered by the
blanket fidelity bond) insurance coverage insuring against losses resulting
from dishonest or fraudulent acts committed by (A) Grantor’s personnel; (B) any
employees of outside firms that provide appraisal, legal, data processing or
other services for Grantor or (C) temporary contract employees or student
interns and (8) such other insurance on the Property and endorsements as may from
time to time be required by Administrative Agent (including but not limited to
soft cost coverage, automobile liability insurance, business interruption
insurance or delayed rental insurance, boiler and machinery insurance,
earthquake insurance, wind insurance, sinkhole coverage, and/or permit to
occupy endorsement)) and against other insurable hazards or casualties which at
the time are commonly insured against in the case of premises similarly
situated, due regard being given to the height, type, construction, location,
use and occupancy of buildings and improvements. Any insurance as to the
Condominium Property or the Units, may be written in the name of the
Condominium Association or an insurance trustee, as trustee for all of the
owners in the Condominium Property, if the Condominium Declaration requires or
permits the Condominium Association or an insurance trustee to be designated as
the insured under such policies. So long as the Condominium Association
maintains any insurance policies as required under this Deed of Trust as to the
Condominium Property or the Units, the obligations of Grantor under this Section shall
be deemed satisfied as to the Condominium Property and the Units; provided that
Grantor shall remain obligated to obtain and maintain insurance with respect to
(i) all personal property and equipment owned by Grantor and located
within the Units; (ii) all other Property not covered by the insurance
maintained by the Condominium Association; and (iii) the Condominium
Property only to the extent necessary to supplement the insurance maintained by
the Condominium Association in order to comply with the requirements of this
Deed of Trust. Grantor shall provide Administrative Agent with a certificate
evidencing all insurance maintained by the Condominium Association as to
insurance Grantor would otherwise be obligated to maintain and to deliver a
copy of such required policies of insurance to Administrative Agent upon
request. At least fifteen (15) days prior to the expiration of each such
policy, Grantor shall furnish Administrative Agent with evidence satisfactory
to Administrative Agent of the payment of premiums and the reissuance of policies
continuing insurance in force as required by this Deed of Trust. Except as
otherwise required by the Condominium Declaration all such policies of
insurance shall contain an endorsement or agreement by the insurer that any
loss is payable in accordance with the terms of such policies notwithstanding
any act or 


 

















 


negligence of
Grantor which might otherwise result in forfeiture of said insurance, and the
further agreement of the insurer waiving all rights of setoff, counterclaim or
deductions against Grantor. Unless prohibited by the Condominium Act or the
Condominium Declaration, Grantor shall cause, at the request of Administrative
Agent, Administrative Agent to be named as an additional insured on any
liability insurance policy maintained by the Condominium Association with
respect to the Property and Units. Except as may be required by the
Condominium Declaration and the Condominium Act, all insurance policies shall
be issued and maintained by insurers, in amounts, with deductibles, limits and
retentions, and in forms satisfactory to Administrative Agent, and shall
require not less than ten (10) days’ prior written notice to
Administrative Agent of any cancellation for nonpayment of premiums, and not
less than thirty (30) days’ prior written notice to Administrative Agent of any
other cancellation or any change of coverage. All insurance companies must be
licensed to do business in the state in which the Property is located and must
have an A. M. Best Company financial and performance ratings of A-:IX or better.
All insurance policies maintained, or caused to be maintained, by Grantor with
respect to the Property, except for general liability insurance, shall provide
that each such policy shall be primary without right of contribution from any
other insurance that may be carried by Grantor or Administrative Agent and
that all of the provisions thereof, except the limits of liability, shall
operate in the same manner as if there were a separate policy covering each
insured. At least fifteen (15) days prior to the expiration of each such
policies, Grantor shall furnish Administrative Agent with evidence satisfactory
to Administrative Agent of the payment of premiums and the reissuance of
policies continuing insurance in force as required by this Deed of Trust. All
such policies of insurance shall contain an endorsement or agreement by the
insurer that any loss is payable in accordance with the terms of such policies
notwithstanding any act or negligence of Grantor which might otherwise result
in forfeiture of said insurance, and the further agreement of the insurer
waiving all rights of setoff, counterclaim or deductions against Grantor. If
any insurer which has issued a policy of title, hazard, liability or other
insurance required pursuant to this Deed of Trust or any other Loan Document
becomes insolvent or the subject of any petition, case, proceeding or other
action pursuant to any Debtor Relief Law, or if in Administrative Agent’s
reasonable opinion the financial responsibility of such insurer is or becomes
inadequate, Grantor shall, in each instance promptly upon its discovery thereof
or upon the request of Administrative Agent therefor, and at Grantor’s expense,
promptly obtain and deliver to Administrative Agent a like policy (or, if and
to the extent permitted by Administrative Agent, acceptable evidence of
insurance) issued by another insurer, which insurer and policy meet the
requirements of this Deed of Trust or such other Loan Document, as the case may be.
Without limiting the discretion of Administrative Agent with respect to
required endorsements to insurance policies, and unless prohibited by the
Condominium Act, all such policies for loss of or damage to the Property shall
contain a standard mortgagee clause (without contribution) naming Administrative
Agent as mortgagee with loss proceeds payable to Administrative Agent
notwithstanding (i) any act, failure to act or negligence of or violation
of any warranty, declaration or condition contained in any such policy by any
named or additional insured; (ii) the occupation or use of the Property
for purposes more hazardous than permitted by the terms of any such policy; (iii) any
foreclosure or other action by Administrative Agent under the Loan Documents;
or (iv) any change in title to or ownership of the Property or any portion
thereof, such proceeds to be held for application as provided in the Loan
Documents. The originals of each initial insurance policy (or to the extent
permitted by Administrative Agent, a copy of the 


 

















 


original
policy and such evidence of insurance acceptable to Administrative Agent) and
unless prohibited by the Condominium Act shall be delivered to Administrative
Agent at the time of execution of this Deed of Trust, with all premiums fully
paid current, and each renewal or substitute policy (or evidence of insurance)
shall be delivered to Administrative Agent, with all premiums fully paid
current, at least ten (10) days before the termination of the policy it
renews or replaces. Grantor shall pay all premiums on policies required
hereunder as they become due and payable and promptly deliver to Administrative
Agent evidence satisfactory to Administrative Agent of the timely payment
thereof. If any loss occurs at any time when Grantor has failed to perform Grantor’s
covenants and agreements in this paragraph with respect to any insurance
payable because of loss sustained to any part of the Property, whether or
not such insurance is required by Administrative Agent, Administrative Agent
shall nevertheless be entitled to the benefit of all insurance covering the
loss and held by or for Grantor, to the same extent as if it had been made
payable to Administrative Agent. Upon any foreclosure hereof or transfer of
title to the Property in extinguishment of the whole or any part of the
Secured Indebtedness, all of Grantor’s right, title and interest in and to the
insurance policies referred to in this Section (including unearned
premiums) and all proceeds payable thereunder shall thereupon vest in the
purchaser at foreclosure or other such transferee, to the extent permissible
under such policies. Administrative Agent  shall have the right
(but not the obligation) to make proof of loss for, settle and adjust any claim
under, and receive the proceeds of, all insurance for loss of or damage to the
Property regardless of whether or not such insurance policies are required by
Administrative Agent, and the expenses incurred by Administrative Agent in the
adjustment and collection of insurance proceeds shall be a part of the
Secured Indebtedness and shall be due and payable to Lenders on demand, provided,
that, except during an Event of Default, any settlement or adjustment of
any claim may be negotiated by the Grantor if the amount involved is equal
to or less than $100,000, if the amount involved is greater than $100,000 then
the same shall remain subject to the final approval of Administrative Agent and
the requirements of this Deed of Trust. Administrative Agent shall not be,
under any circumstances, liable or responsible for failure to collect or
exercise diligence in the collection of any of such proceeds or for the
obtaining, maintaining or adequacy of any insurance or for failure to see to
the proper application of any amount paid over to Grantor. Any such proceeds
received by Administrative Agent shall, after deduction therefrom of all
reasonable expenses actually incurred by Administrative Agent, including
attorneys’ fees, at Administrative Agent’s option be (1) released to
Grantor, or (2) applied (upon compliance with such terms and conditions as
may be required by Administrative Agent) to repair or restoration, either
partly or entirely, of the Property so damaged, or (3) applied to the
payment of the Secured Indebtedness in such order and manner as Administrative
Agent, in its sole discretion, may elect, whether or not due. In any
event, the unpaid portion of the Secured Indebtedness shall remain in full
force and effect and the payment thereof shall not be excused. Grantor shall at
all times comply with the requirements of the insurance policies required
hereunder and of the issuers of such policies and of any board of fire
underwriters or similar body as applicable to or affecting the Property. All
such proceeds received by Administrative Agent, after deduction therefrom of
all reasonable expenses actually incurred by Administrative Agent, including
attorneys’ fees, shall be held and disbursed by Administrative Agent in
accordance with the requirements of this Deed of Trust. If the total cost of
repairs required to reconstruct the Property to its value, character and
condition immediately prior to such casualty (the “Restoration”) is
greater than $5,000,000, Administrative Agent may, at its 


 

















 


option,
require that the proceeds be (1) released to Grantor, or (2) applied
(upon compliance with such terms and conditions as may be required by
Administrative Agent) to repair or restoration, either partly or entirely, of
the Property so damaged, or (3) applied to the payment of the Secured
Indebtedness in such order and manner as Administrative Agent, in its sole
discretion, may elect, whether or not due. In any event, the unpaid
portion of the Secured Indebtedness shall remain in full force and effect and
the payment thereof shall not be excused. If the total costs of the Restoration
is less than $5,000,000, the proceeds shall be made available to carry out such
Restoration, if the following conditions are satisfied in full to the
reasonable satisfaction of the Agents (as defined in the Loan Agreement):


 


(1)                                  There exists no Event
of Default or Potential Default (as defined in the Loan Agreement;


 


(2)                                  Administrative Agent
has received evidence that the Restoration can be completed no later than 90
days prior to the Maturity Date (as defined in the Loan Agreement);


 


(3)                                  Grantor has presented
to Administrative Agent evidence of sufficient insurance proceeds to pay the
interest and all other payments due under the Loan during the period of
Restoration and that the Property’s operations and income after completion of
the Restoration will be sufficient to pay the operating expenses of the
Property and debt service on the Secured Indebtedness with the same coverage
ratios considered by Administrative Agent in underwriting the Loan;


 


(4)                                  Grantor delivers or
causes to be delivered to Administrative Agent complete final plans and
specifications (the “Work Plans and Specs”) for the work to be performed
in connection with the Restoration (hereinafter called the “Work”)
prepared and sealed by a licensed architect reasonably satisfactory to
Administrative Agent (the “Supervising Architect”), with evidence
reasonably satisfactory to Administrative Agent of the approval of the Work
Plans and Specs by all governmental authorities whose approval is required;


 


(5)                                  Grantor delivers or
causes to be delivered to Administrative Agent a signed estimate approved in
writing by the Supervising Architect, bearing the Supervising Architect’s seal,
stating the entire cost of completing the Work;


 


(6)                                  Administrative Agent
determines, in its sole and absolute discretion, that the proceeds are
sufficient to pay in full the cost of the Restoration or, if Administrative
Agent determines, in its sole and absolute discretion, that the proceeds are
not sufficient to pay in full the costs of the Restoration, Grantor has
deposited or has caused to be deposited with Administrative Agent sufficient
funds, such that together with the available proceeds, sufficient funds shall
be readily available for the Restoration;


 


(7)                                  Grantor delivers or
causes to be delivered to Administrative Agent true copies of all permits and
approvals required by law in connection with the commencement and conduct of
the Work; and


 

















 


(8)                                  Administrative Agent
will not incur any liability to any other person as a result of such use or
release of insurance proceeds.


 


If the
conditions of paragraphs (1) through (8) above are not satisfied
within one hundred eighty (180) days after receipt by Administrative Agent of
the proceeds, then Administrative Agent may, at its option, apply any insurance
proceeds to the outstanding balance of the Secured Indebtedness in such order
and manner as Administrative Agent elects. Provided the terms and conditions
above have been satisfied, such proceeds shall be applied by Administrative
Agent to the payment of the cost of the Work on the same terms and conditions
as contemplated for advances related to the construction of the Improvements,
as set forth in the Loan Agreement.


 


Notwithstanding
anything contained in this Section 2.1(d), as to the Condominium Property
only, Grantor shall have no obligation to Administrative Agent that violates
the Condominium Act. The following notice is provided pursuant to Section 427.120
of the Missouri Revised Statutes:


 


Unless you provide evidence of the insurance
coverage required by your agreement with us, we may purchase insurance at
your expense to protect our interests in your collateral. This insurance may,
but need not, protect your interests. The coverage that we purchase may not
pay any claim that you make or any claim that is made against you in connection
with the collateral. You may later cancel any insurance purchased by us,
but only after providing evidence that you have obtained insurance as required
by our agreement. If we purchase insurance for the collateral, you will be
responsible for the costs of that insurance, including the insurance premium,
interest and any other charges we may imposed in connection with the
placement of insurance. The costs of the insurance may be added to your
total outstanding balance or obligation. The costs of the insurance may be
more than the cost of insurance you may be able to obtain on your own.


 


(e)                                  Reserve
for Insurance, Taxes and Assessments. Upon request of Administrative Agent,
to secure the payment and performance of the Secured Indebtedness, but not in
lieu of such payment and performance, Grantor will deposit with Administrative
Agent a sum equal to real estate taxes, assessments and charges (which charges
for the purposes of this paragraph shall include without limitation any
recurring charge which could result in a lien against the Property) against the
Property for the current year and the premiums for such policies of insurance
for the current year (other than for insurance maintained solely by the
Condominium Association), all as estimated by Administrative Agent and prorated
to the end of the calendar month following the month during which
Administrative Agent’s request is made, and thereafter will deposit with
Administrative Agent, on each date when an installment of principal and/or
interest is due on the Loan, sufficient funds (as estimated from time to time
by Administrative Agent) to permit Administrative Agent to pay at least fifteen
(15) days prior to the due date (or, in the case of real estate taxes and
assessments, the delinquency date) thereof, the next maturing real estate
taxes, assessments and charges and premiums for such policies of insurance. Administrative
Agent shall have the right to rely upon tax information furnished by applicable
taxing authorities in the payment of such taxes or assessments and shall have
no obligation to make any protest of any 


 

















 


such taxes or
assessments. To the extent permitted by law, any excess over the amounts
required for such purposes shall be held by Administrative Agent for future
use, applied to any Secured Indebtedness or refunded to Grantor, at
Administrative Agent’s option, and any deficiency in such funds so deposited
shall be made up by Grantor upon demand of Administrative Agent. All such funds
so deposited shall bear no interest, may be co-mingled with the general
funds of Administrative Agent and shall be applied by Administrative Agent
toward the payment of such taxes, assessments, charges and premiums when
statements therefor are presented to Administrative Agent by Grantor (which
statements shall be presented by Grantor to Administrative Agent a reasonable
time before the applicable amount is due); provided, however, that, if a
Default shall have occurred hereunder, such funds may at Administrative
Agent’s option be applied to the payment of the Secured Indebtedness in the
order determined by Administrative Agent in its sole discretion, and that
Administrative Agent may (but shall have no obligation) at any time, in
its discretion, apply all or any part of such funds toward the payment of
any such taxes, assessments, charges or premiums which are past due, together
with any penalties or late charges with respect thereto. The conveyance or
transfer of Grantor’s interest in the Property for any reason (including
without limitation the foreclosure of a subordinate lien or security interest
or a transfer by operation of law) shall constitute an assignment or transfer
of Grantor’s interest in and rights to such funds held by Administrative Agent
under this paragraph but subject to the rights of Administrative Agent
hereunder.


 


(f)                                    Condemnation.
Grantor shall notify Administrative Agent promptly of any threatened or pending
proceeding for condemnation affecting the Property or arising out of damage to
the Property, and Grantor shall, at Grantor’s expense, diligently prosecute any
such proceedings. Administrative Agent shall have the right (but not the
obligation) to participate in any such proceeding and to be represented by
counsel of its own choice. Administrative Agent shall be entitled to receive all
sums which may be awarded or become payable to Grantor for the
condemnation of the Property, or any part thereof, for public or quasi-public
use, or by virtue of private sale in lieu thereof, and any sums which may be
awarded or become payable to Grantor for injury or damage to the Property.
Grantor shall, promptly upon request of Administrative Agent, execute such
additional assignments and other documents as may be necessary from time
to time to permit such participation and to enable Administrative Agent to
collect and receipt for any such sums. All such sums are hereby assigned to
Administrative Agent, and, shall, after deduction therefrom of all reasonable
expenses actually incurred by Administrative Agent, including attorneys’ fees,
at Administrative Agent’s option be (1) released to Grantor, or (2) applied
(upon compliance with such terms and conditions as may be required by
Administrative Agent) to repair or restoration of the Property, or (3) applied
to the payment of the Secured Indebtedness in such order and manner as
Administrative Agent, in its sole discretion, may elect, whether or not
due. In any event the unpaid portion of the Secured Indebtedness shall remain
in full force and effect and the payment thereof shall not be excused. Administrative
Agent shall not be, under any circumstances, liable or responsible for failure
to collect or to exercise diligence in the collection of any such sum or for
failure to see to the proper application of any amount paid over to Grantor. Administrative
Agent is hereby authorized, in the name of Grantor, to execute and deliver
valid acquittances for, and to appeal from, any such award, judgment or decree.
All costs and expenses (including but not limited to attorneys’ fees) incurred
by Administrative Agent in connection with any condemnation shall be a demand
obligation 


 

















 


owing by
Grantor (which Grantor hereby promises to pay) to Administrative Agent pursuant
to this Deed of Trust.


 


(g)                                 Compliance
with Legal Requirements. The Grantor, the Property and the use, operation
and maintenance thereof and all activities thereon do and shall at all times
comply with the terms, conditions, covenants, representations and warranties of
the Loan Agreement and all applicable Legal Requirements (hereinafter defined).
The Property is not, and shall not be, dependent on any other property or
premises or any interest therein other than the Property to fulfill any
requirement of any Legal Requirement. Grantor shall not, by act or omission,
permit any building or other improvement not subject to the lien of this Deed
of Trust to rely on the Property or any interest therein to fulfill any
requirement of any Legal Requirement. No improvement upon or use of any part of
the Property constitutes a nonconforming use under any zoning law or similar
law or ordinance. Grantor has obtained and shall preserve in force all
requisite zoning, utility, building, health, environmental and operating
permits from the governmental authorities having jurisdiction over the Property.
If Grantor receives a notice or claim from any person that the Property, or any
use, activity, operation or maintenance thereof or thereon, is not in
compliance, in any material respect, with any Legal Requirement, Grantor will
promptly furnish a copy of such notice or claim to Administrative Agent. Grantor
has received no notice and has no knowledge of any such noncompliance. As used
in this Deed of Trust:  (i) the term
“Legal Requirement” means any Law (hereinafter defined), agreement,
covenant, restriction, easement or condition (including, without limitation of
the foregoing, any condition or requirement imposed by any insurance or surety
company), as any of the same now exists or may be changed or amended or
come into effect in the future; and (ii) the term “Law” means any
federal, state or local law, statute, ordinance, code, rule, regulation,
license, permit, authorization, decision, order, injunction or decree, domestic
or foreign.


 


(h)                                 Maintenance,
Repair and Restoration. Subject only to the restoration and renovation as
provided in the Plans, Grantor will keep the Property in first class order,
repair, operating condition and appearance, causing all necessary repairs,
renewals, replacements, additions and improvements to be promptly made, and
will not allow any of the Property to be misused, abused or wasted or to
deteriorate. Notwithstanding the foregoing, Grantor will not, without the prior
written consent of Administrative Agent, (i) remove from the Property any
fixtures or personal property covered by this Deed of Trust except such as is
replaced by Grantor by an article of comparable quality and utility, owned
by Grantor, free and clear of any lien or security interest (except that
created by this Deed of Trust), or (ii) make any structural alteration to
the Property or any other alteration thereto which impairs, except to an
immaterial extent, the value thereof. If any act or occurrence of any kind or
nature (including any condemnation or any casualty for which insurance was not
obtained or obtainable) shall result in damage to or loss or destruction of the
Property, Grantor shall give prompt notice thereof to Administrative Agent and
Grantor shall promptly, at Grantor’s sole cost and expense and regardless of
whether insurance or condemnation proceeds (if any) shall be available or
sufficient for the purpose, secure the Property as necessary and commence and
continue diligently to completion to restore, repair, replace and rebuild the
Property as nearly as possible to its value, condition and character
immediately prior to the damage, loss or destruction. Notwithstanding the
foregoing, Grantor shall not be required to perform the obligations
contained under this subparagraph (h) with respect to (A) any Units
released from the lien of this Deed of Trust, or (B) the Common 


 

















 


Elements of
the Condominium Property so long as the Condominium Association is performing
such obligations.


 


(i)                                     No
Other Liens. Grantor will not, without the prior written consent of
Administrative Agent, create, place or permit to be created or placed, or
through any act or failure to act, acquiesce in the placing of, or allow to
remain, any deed of trust, mortgage, voluntary or involuntary lien, whether
statutory, constitutional or contractual, security interest, encumbrance or
charge, or conditional sale or other title retention document, against or
covering the Property, or any part thereof, other than the Permitted
Encumbrances, regardless of whether the same are expressly or otherwise
subordinate to the lien or security interest created in this 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. Notwithstanding the
foregoing, Administrative Agent shall not unreasonably delay or withhold its
consent to financing or leasing of (A) certain types of office equipment,
such as copiers or fax machines, provided, that, such office
equipment (i) is readily replaceable and the removal and replacement of
such equipment will not significantly impact the operation of the hotel, and (ii) will
not be used to store or hold any proprietary information or information
necessary for the operation of the Improvements as a hotel that is not readily
available otherwise and (B) televisions, provided, that, the
underlying lease or financing documentation will provide Administrative Agent
with notice of any defaults of Grantor under such documentation and the
opportunity, but not the obligation, to cure such defaults within a period of
at least thirty (30) days. Grantor will own all parts of the Property and will
not acquire any fixtures, equipment or other property (including software
embedded therein) forming a part of the Property pursuant to a lease,
license, security agreement or similar agreement, whereby any party has or may obtain
the right to repossess or remove same, without the prior written consent of
Administrative Agent. If Administrative Agent consents to the voluntary grant
by Grantor of any deed of trust or mortgage, lien, security interest, or other
encumbrance (hereinafter called “Subordinate Lien”) covering any of the
Property or if the foregoing prohibition is determined by a court of competent
jurisdiction to be unenforceable as to a Subordinate Lien, any such Subordinate
Lien shall contain express covenants to the effect that: (1) the
Subordinate Lien is unconditionally subordinate to this Deed of Trust and all
leases encumbering the Property to which Grantor is the lessor thereunder; (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, if collected by or for the
Administrative Agent of the Subordinate Lien, shall be applied first to the
payment of the Secured Indebtedness then due and expenses incurred in the
ownership, operation and maintenance of the Property in such order as
Administrative Agent may determine, prior to being applied to any
indebtedness secured by the Subordinate Lien; (4) written notice of
default under the Subordinate Lien and written notice of the commencement of
any action (whether judicial or pursuant to a power of sale) to foreclose or
otherwise enforce the Subordinate Lien or to seek the appointment of a receiver
for all or any part of the Property shall be given to Administrative Agent
with or promptly after the occurrence of any such default or commencement; and (5) neither
the Administrative Agent of the Subordinate Lien, nor any purchaser at
foreclosure thereunder, nor anyone claiming by, through 


 

















 


or under any
of them shall succeed to any of Grantor’s rights hereunder without the prior
written consent of Administrative Agent.


 


(j)                                     Operation
of Property. Grantor will operate the Property in a good and workmanlike
manner and in accordance with all Legal Requirements and will pay all fees or
charges of any kind in connection therewith. Grantor will keep the Property
occupied so as not to impair the insurance carried thereon. Grantor will not
use or occupy or conduct any activity on, or allow the use or occupancy of or
the conduct of any activity on, the Property in any manner which violates any
Legal Requirement or which constitutes a public or private nuisance or which
makes void, voidable or cancelable, or increases the premium of, any insurance
then in force with respect thereto. Except with Administrative Agent’s prior
written consent, Grantor will not initiate or permit any zoning
reclassification of the Property or seek any variance under existing zoning
ordinances applicable to the Property or use or permit the use of the Property
in such a manner which would result in such use becoming a nonconforming use
under applicable zoning ordinances or other Legal Requirement. Grantor will not
impose any easement, restrictive covenant or encumbrance upon the Property,
execute or file any subdivision plat affecting the Property or consent to the
annexation of the Property to any municipality, without the prior written
consent of Administrative Agent. Grantor will not knowingly do or suffer to be
done any act whereby the value of any part of the Property may be
lessened. Grantor will preserve, protect, renew, extend and retain all material
rights and privileges granted for or applicable to the Property. Without the
prior written consent of Administrative Agent, there shall be no drilling or
exploration for or extraction, removal or production of any mineral,
hydrocarbon, gas, natural element, compound or substance (including sand and
gravel) from the surface or subsurface of the Land regardless of the depth
thereof or the method of mining or extraction thereof.


 


(k)                                  Financial
Matters. Grantor is solvent after giving effect to all borrowings
contemplated by the Loan Documents and no proceeding under any Debtor Relief
Law is pending (or, to Grantor’s knowledge, threatened) by or against Grantor,
or any affiliate of Grantor, as a debtor. All reports, statements, plans,
budgets, applications, agreements and other data and information heretofore
furnished or hereafter to be furnished by or on behalf of Grantor to
Administrative Agent in connection with the loan or loans evidenced by the Loan
Documents (including, without limitation, all financial statements and
financial information) are and will be true, correct and complete in all
material respects as of their respective dates and do not and will not omit to
state any fact or circumstance necessary to make the statements contained
therein not misleading. No material adverse change has occurred since the dates
of such reports, statements and other data in the financial condition of
Grantor or, to Grantor’s knowledge, of any tenant under any lease described
therein. For the purposes of this paragraph, “Grantor” shall also include any
affiliate of Grantor, Guarantor, any affiliate of Guarantor and each of their
respective successors and assigns liable directly or indirectly for the Secured
Indebtedness.


 


(l)  Status of Grantor; Suits
and Claims; Loan Documents. If Grantor is a corporation, partnership,
limited liability company, or other legal entity, Grantor is and will continue
to be (i) duly organized, validly existing and in good standing under the
laws of its state of organization, (ii) authorized to do business in, and
in good standing in, each state in which the Land is located, and (iii) possessed
of all requisite power and authority to carry on its business and to own and 


 

















 


operate the
Property. Each Loan Document executed by Grantor has been duly authorized,
executed and delivered by Grantor, and the obligations thereunder and the
performance thereof by Grantor in accordance with their terms are and will
continue to be within Grantor’s power and authority (without the necessity of
joinder or consent of any other person, except for such as have been obtained),
are not and will not be in contravention of any Legal Requirement or any other
document or agreement to which Grantor or the Property is subject, and do not
and will not result in the creation of any encumbrance against any assets or
properties of Grantor, Guarantor, any affiliate of Grantor, or any affiliate of
Guarantor liable, directly or indirectly, for any of the Secured Indebtedness,
except as expressly contemplated by the Loan Documents. There is no suit,
action, claim, investigation, inquiry, proceeding or demand pending (or, to
Grantor’s knowledge, threatened) against Grantor, Guarantor, any affiliate of
Grantor, or any affiliate of Guarantor liable directly or indirectly for the
Secured Indebtedness or which to, Grantor’s best knowledge, affects the
Property (including, without limitation, any which challenges or otherwise
pertains to Grantor’s title to the Property) or the validity, enforceability or
priority of any of the Loan Documents. There is no judicial or administrative
action, suit or proceeding pending (or, to Grantor’s knowledge, threatened)
against Grantor, Guarantor, any affiliate of Grantor, or any affiliate of
Guarantor liable directly or indirectly for the Secured Indebtedness, except as
has been disclosed in writing to Administrative Agent in connection with the
loan evidenced by the Note. The Loan Documents, to which Grantor is a party,
constitute legal, valid and binding obligations of Grantor enforceable in
accordance with their terms, except as the enforceability thereof may be
limited by Debtor Relief Laws and except as the availability of certain
remedies may be limited by general principles of equity. Grantor is not a “foreign
person” within the meaning of the Internal Revenue Code of 1986, as amended,
Sections 1445 and 7701 (i.e. Grantor is not a non-resident alien, foreign
corporation, foreign partnership, foreign trust or foreign estate as those
terms are defined therein and in any regulations promulgated thereunder). The
Loan is solely for business and/or investment purposes, and is not intended for
personal, family, household or agricultural purposes. Grantor further warrants
that the proceeds of the Loan shall be used for commercial purposes and
stipulates that the Loan shall be construed for all purposes as a commercial
loan. Grantor’s exact legal name is correctly set forth at the end of this Deed
of Trust. If Grantor is not an individual, Grantor is an organization of the
type and (if not an unregistered entity) is incorporated in or organized under
the laws of the state specified in the introductory paragraph of this Deed of
Trust. If Grantor is an unregistered entity (including, without limitation, a
general partnership) it is organized under the laws of the state specified in
the introductory paragraph of this Deed of Trust. Grantor will not cause or
permit any change to be made in its name, identity, (including its trade name
or names), organizational structure, unless Grantor shall have notified
Administrative Agent in writing of such change at least 30 days prior to the
effective date of such change, and shall have first taken all action required
by Administrative Agent for the purpose of further perfecting or protecting the
lien and security interest of Administrative Agent in the Property. In
addition, Grantor shall not change its organizational structure without first
obtaining the prior written consent of Administrative Agent. Grantor’s
principal place of business and chief executive office, and the place where
Grantor keeps its books and records (in addition to at the Property), including
recorded data of any kind or nature, regardless of the medium of recording
including, without limitation, software, writings, plans, specifications and
schematics concerning the Property, has for the preceding four months (or, if
less, the entire period of the existence of Grantor) been and 


 

















 


will continue
to be (unless Grantor notifies Administrative Agent of any change in writing at
least 30 days prior to the date of such change) the address of Grantor set
forth Article I of this Deed of Trust. If Grantor is an individual, Grantor’s
principal residence has for the preceding four months been and will continue to
be (unless Grantor notifies Administrative Agent of any change in writing at
least 30 days prior to the date of such change) the address of the principal
place of business of Grantor set forth in Article I of this Deed of Trust.
Grantor’s organizational identification number, assigned by the state of
incorporation or organization is 4253490. Grantor shall promptly notify
Administrative Agent (i) of any change of its organizational
identification number, or (ii) if Grantor does not now have an
organization identification number and later obtains one, of such
organizational identification number.


 


(m)                               Further
Assurances. Grantor will, within a reasonable period of time following request
of Administrative Agent, (i) correct any defect, error or omission which may be
discovered in the contents, execution or acknowledgment of this 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, 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
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.


 


(n)                                 Fees
and Expenses. Without limitation of any other provision of this Deed of
Trust or of any other Loan Document and to the extent not prohibited by
applicable law, Grantor will pay, and will reimburse to Administrative Agent
and/or Trustee on demand to the extent paid by Administrative Agent and/or
Trustee: (i) all reasonable appraisal fees, filing, registration and
recording fees, recordation, transfer and other taxes, brokerage fees and
commissions, abstract fees, title search or examination fees, title policy and
endorsement premiums and fees, uniform commercial code search fees,
judgment and tax lien search fees, escrow fees, attorneys’ fees, architect
fees, engineer fees, construction consultant fees, environmental inspection
fees, survey fees, and all other costs and expenses of every character incurred
by Grantor or Administrative Agent and/or Trustee in connection with the
preparation of the Loan Documents, the evaluation, closing and funding of the
Loan, and any and all amendments and supplements to this Deed of Trust, the
Loan Agreement, or any other Loan Documents or any approval, consent, waiver,
release or other matter requested or required hereunder or thereunder, or
otherwise attributable or chargeable to Grantor as owner of the Property; and (ii) all
costs and expenses, including attorneys’ fees and expenses, incurred or
expended in connection with the exercise of 


 

















 


any right or
remedy, or the defense of any right or remedy or the enforcement of any
obligation of Grantor, hereunder or under any other Loan Document.


 


(o)                                 Indemnification.


 


(i)                                     Grantor will
indemnify and hold harmless Administrative Agent and Trustee from and against,
and reimburse it on demand for, any and all Indemnified Matters (hereinafter
defined). For purposes of this subparagraph (i), the term “Administrative
Agent” and “Trustee” shall include Administrative Agent, and
Trustee, and any persons owned or controlled by, owning or controlling, or
under common control or affiliated with Administrative Agent or Trustee
respectively and the directors, officers, partners, employees, attorneys,
agents and representatives of each of them. WITHOUT
LIMITATION, THE FOREGOING INDEMNITIES SHALL APPLY TO EACH INDEMNIFIED PERSON
WITH RESPECT TO MATTERS WHICH IN WHOLE OR IN PART ARE CAUSED BY OR ARISE
OUT OF, OR ARE CLAIMED TO BE CAUSED BY OR ARISE OUT OF, THE NEGLIGENCE (WHETHER
SOLE, COMPARATIVE OR CONTRIBUTORY) OR STRICT LIABILITY OF SUCH (AND/OR ANY
OTHER) INDEMNIFIED PERSON. HOWEVER, SUCH INDEMNITIES SHALL NOT APPLY TO A
PARTICULAR INDEMNIFIED PERSON TO THE EXTENT THAT THE SUBJECT OF THE
INDEMNIFICATION IS CAUSED BY OR ARISES OUT OF THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF THAT INDEMNIFIED PERSON. Any amount to be paid under
this paragraph (o) by Grantor to Administrative Agent and/or Trustee shall be a
demand obligation owing by Grantor (which Grantor hereby promises to pay) to
Administrative Agent and/or Trustee pursuant to this Deed of Trust. Upon demand
by Administrative Agent, Grantor shall diligently defend any Indemnified Matter
which affects the Property or is made or commenced against Administrative
Agent, whether alone or together with Grantor or any other person, all at
Grantor’s own cost and expense and by counsel to be approved by Administrative
Agent in the exercise of its reasonable judgment. In the alternative, at any
time Administrative Agent may elect to conduct its own defense through
counsel selected by Administrative Agent and at the cost and expense of Grantor.
Nothing in this paragraph, elsewhere in this Deed of Trust or in any other Loan
Document shall limit or impair any rights or remedies of Administrative Agent
and/or Trustee (including without limitation any rights of contribution or
indemnification) against Grantor or any other person under any other provision
of this Deed of Trust, any other Loan Document, any other agreement or any
applicable Legal Requirement.


 


(ii)                                  For purposes of this
subparagraph (ii), the term “Administrative Agent” shall include
Administrative Agent and each Lender, the directors, officers, partners,
employees and agents of Administrative Agent and such Lenders or Trustee, respectively,
and any persons owned or controlled by, owning or controlling, or under common
control or affiliated with Administrative Agent and the Lenders or Trustee,
respectively. As used herein, the
term “Indemnified Matters” means any and all claims, demands,
liabilities (including strict liability), losses, damages (including
consequential damages), causes of action, judgments, penalties, fines, costs
and expenses (including without limitation, 


 

















 


reasonable fees and expenses of attorneys and other professional
consultants and experts, and of the investigation and defense of any claim,
whether or not such claim is ultimately withdrawn or defeated, and the
settlement of any claim or judgment including all value paid or given in
settlement) of every kind, known or unknown, foreseeable or unforeseeable,
which may be imposed upon, asserted against or incurred or paid by
Administrative Agent and/or Trustee at any time and from time to time, whenever
imposed, asserted or incurred, because of, resulting from, in connection with,
or arising out of any transaction, act, omission, event or circumstance in any
way connected with the Property or with this 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. 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 Deed of Trust have
been paid and performed in full and the Deed of Trust has been released; or (ii) the
date on which the lien of the Deed of Trust 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 their
heirs, devisees, representatives, successors and assigns; provided that, if
such payment, performance, release, foreclosure or conveyance is challenged, in
bankruptcy proceedings or otherwise, the Release Date shall be deemed not to have
occurred until such challenge is validly released, dismissed with prejudice or
otherwise barred by law from further assertion. The indemnities in this
paragraph (o) shall not terminate upon the Release Date or upon the release,
foreclosure or other termination of this 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, 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.


 


(p)                                 Taxes
on Note or 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 similar taxes (unless such payment by Grantor is
prohibited by law) which may be required to be paid with respect to the
Loan, 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 Lenders, the Loan, 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 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 Lenders, then, and in any such
event, Grantor, upon demand by Administrative Agent, shall pay such taxes,
assessments, charges or liens, or reimburse Lenders therefor; provided, however,
that if in the opinion of counsel for Administrative Agent (i) it might be
unlawful to require Grantor to make such payment or (ii) the making of
such payment might result in the imposition of interest beyond the maximum
amount permitted by law, then and in such event, the Required Lenders may elect,
by notice in writing given to Grantor, to declare all of the Secured
Indebtedness to be and become due and payable ninety (90) days from the giving
of such notice.


 


(q)                                 Statement
Concerning Note or Deed of Trust. Grantor shall at any time and from time
to time furnish within seven (7) days of request by Administrative Agent a
written statement in such form as may be required by Administrative
Agent in its commercially reasonable judgment stating that (i) the Note,
the Loan Agreement, this Deed of Trust and the other Loan Documents are valid
and binding obligations of Grantor, enforceable against Grantor in accordance
with their terms; (ii) the unpaid principal balance of the Loan; (iii) the
date to which interest on the Loan is paid; (iv) the Loan, this Deed of
Trust and the other Loan Documents have not been released, subordinated or
modified; and (v) there are no known offsets or defenses against the
enforcement of the Loan, this Deed of Trust or any other Loan Document. If any
of the foregoing statements in clauses (i), (iv) and (v) are untrue,
Grantor shall, alternatively, specify the reasons therefor.


 


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 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, and such failure constitutes an Event of Default under this Deed of Trust,
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 Deed of Trust shall bear interest, from the date such amount becomes
due until paid, at the rate per annum provided in the Loan Agreement for
interest on past due principal owed on the Loan, which interest shall be
payable to Administrative Agent on demand; and all such amounts, together with
such interest thereon, shall automatically and without notice be a part of
the Secured Indebtedness. The amount and nature of any expense by
Administrative Agent hereunder and the time when paid shall be fully
established by the certificate of Administrative Agent or any of Administrative
Agent’s officers or agents.


 
















 


Section 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) Administrative
Agent neither assumes nor shall have any obligations, duties or liabilities in
connection with any portion of the items described in the definition of “Property”
herein, either prior to or after obtaining title to such Property, whether by
foreclosure sale, the granting of a deed in lieu of foreclosure or otherwise,
and (iii) Administrative Agent may, at any time prior to or after the
acquisition of title to any portion of the Property as above described, advise
any party in writing as to the extent of Administrative Agent’s interest
therein and/or expressly disaffirm in writing any rights, interests,
obligations, duties and/or liabilities with respect to such Property or matters
related thereto. Without limiting the generality of the foregoing, it is
understood and agreed that Administrative Agent shall have no obligations,
duties or liabilities prior to or after acquisition of title to any portion of
the Property, as lessee under any lease or purchaser or seller under any
contract or option unless Administrative Agent elects otherwise by written notification.


 


Section 2.4.                                   Authorization to File Financing Statements;
Power of Attorney. Grantor
hereby authorizes Administrative Agent at any time and from time to time to
file any initial financing statements, amendments thereto and continuation
statements as authorized by applicable law, required by Administrative Agent to
establish or maintain the validity, perfection and priority of the security
interests granted in this 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 or cause to
be done in the future by virtue hereof. This power of attorney is a power
coupled with an interest and shall be irrevocable.


 


Section 2.5                                      Compliance with Condominium Act and
Condominium Documents.


 


(a)                                  Grantor shall comply with and perform all
of its obligations, regardless of whether said obligations arise from the
status of Grantor as an owner of Units or as Declarant (as such term is defined
in the Condominium Declaration), under the Condominium Declaration, Condominium
Act, the Interstate Land Sales Act, the Condominium By-laws, and any rules and
regulations of the Condominium Association (the Condominium Declaration, the
Condominium By-laws and the rules and regulations of the Condominium
Association being collectively hereinafter referred to as the “Condominium
Documents”), and Grantor shall not violate or breach any material warranty,
representation, covenant or agreement contained therein and binding on it. Grantor
shall promptly deliver to Administrative Agent a true and full copy of each and
every notice of default received by Grantor with respect to any obligation of
Grantor 


 

















 


under the provisions of the
Condominium Act, the Interstate Land Sales Act, or the Condominium Documents.


 


(b)                                 During the period of Declarant control, if
any, specified in the Condominium Declaration, no material amendments,
modifications, supplements or releases shall be made to any of the Condominium
Documents (excluding any rules and regulations of the Condominium
Association) without the prior written approval of Administrative Agent, which
approval shall not be unreasonably withheld or delayed.


 


(c)                                  Grantor shall not, without the prior written
consent of Administrative Agent, intentionally terminate, cancel, surrender or
abandon any material rights of the Declarant provided under the Condominium
Declaration or the Condominium Act, and any such termination, cancellation,
surrender or abandonment, or attempt thereof, without Administrative Agent’s
consent, shall be invalid and of no force and effect.


 


(d)                                 Grantor shall pay to the Condominium
Association all common expenses and other assessments required of it by the
Condominium Declaration and shall deliver proof of such payment (and an
accounting of the balance of funds on deposit from time to time in the common
expense fund or funds required to be established by the Condominium
Declaration) upon reasonable demand by Administrative Agent made at reasonable
intervals.


 


(e)                                  Upon the occurrence and during the
continuation of an Event of Default under the terms of this Deed of Trust,
Administrative Agent shall have all rights and privileges which Grantor (as the
owner of a Unit) has by virtue of the Condominium Act and the Condominium
Declaration as though Administrative Agent were in fact an owner, including
without limiting the generality of the foregoing, all voting rights accruing to
Grantor under the terms of the Condominium Declaration; and Grantor hereby
nominates and appoints Administrative Agent irrevocably so long as this Deed of
Trust remains in effect as Grantor’s exclusive proxy to vote and, as Grantor’s
exclusive agent, to act with respect to all of said rights, upon the occurrence
and during the continuation of an Event of Default under the terms of this Deed
of Trust. The Condominium Association (or the Board of Directors of the
Condominium Association) shall be entitled to rely conclusively on written
notice of default from Administrative Agent to the Condominium Association (or
the Board of Directors of the Condominium Association) as to the existence of
such Event of Default and as to Administrative Agent’s rights and privileges
under this subparagraph (e), including all voting rights accruing to Grantor
under the terms of the Condominium Declaration and the Condominium Act. In no
event shall Administrative Agent be liable for any assessments of common
expenses provided for in the Condominium Documents, or under any resolution
adopted by the Condominium Association, nor shall Administrative Agent be
deemed to be a Declarant, by the exercise of its rights under this Deed of
Trust, unless and until Administrative Agent agrees and assumes, in writing,
the obligations of Declarant arising under the Condominium Declaration.


 


(f)                                    Notwithstanding the foregoing, Grantor shall
not, except after notice to Administrative Agent and with the prior written
consent of Administrative Agent, (i) vote for or consent to any material
modification of, material amendment to or relaxation in the enforcement of any
provision of the Condominium Declaration; (ii) in the event of damages to
or destruction 


 

















 


of all or any portion of the
Condominium Property, exercise any vote with respect to casualty or
condemnation proceeds; (iii) partition or subdivide any Unit; (iv) consent
to or vote for the removal of the Condominium Property from the provisions of
the Condominium Act, except for abandonment or termination deemed to have
occurred, if at all, by law in the case of substantial destruction by fire or
other casualty or in the case of a taking by condemnation or eminent domain; (v) consent
to or vote for any material amendment to the Condominium Documents including,
without limitation, any amendment which would change the allocated interests of
the owners in the Condominium Property; or (vi) consent to or vote for the
effectuation of any decision by the Condominium Association to terminate
professional management and assume self-management of the Condominium Property.


 


Section 2.6                                      Covenants, Representations and Warranties
Concerning Leases. Grantor
covenants, represents and warrants that (a) Grantor will not without the
prior written consent of Administrative Agent, enter into any Lease encumbering
all or a portion of a Unit or for actual occupancy by the tenant thereunder and
(b) 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 lienholder;
and nothing herein shall be construed as subordinating this Deed of Trust to
any Lease. Notwithstanding the foregoing, Grantor may at anytime after the
Second Rate Reduction Date enter into a Lease encumbering a Unit that has been
completed, finished out and is ready for occupancy (such as a model unit).


 


ARTICLE 3


Reserved


 


ARTICLE 4


Event of Default


 


Section 4.1.
Events of Default. The occurrence of any one of the following shall be a
default under this Deed of Trust (“Event of Default”):


 


(a)                                  Nonperformance of Covenants. Any covenant, agreement or condition herein
or in any other Loan Document (other than covenants otherwise addressed in
another paragraph of this Section) is not fully and timely performed, observed
or kept, and such failure is not cured within the applicable notice and cure
period (if any) provided for herein or in such other Loan Document.


 


(b)                                 Default under Loan Agreement or other Loan
Documents. The occurrence of
a Default under (and as defined in) the Loan Agreement or a default or event of
default (however defined in) any other Loan Document (after giving effect to
any notice or cure periods, if any).


 

















 


(c)                                  Default under Hotel Loan Documents. The occurrence of a Default under (and as
defined in) the Hotel Loan Agreement or event of default (however defined in)
any other Hotel Loan Document (after giving effect to any notice or cure
periods, if any).


 


Section 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, 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


 


Section 5.1.
Certain Remedies. If an Event of Default shall occur and be continuing,
Administrative Agent may (but shall have no obligation to) exercise any
one or more of the following remedies, without notice (unless notice is required
by applicable statute):


 


(a)                                  Acceleration; Termination. Administrative Agent may at any time
and from time to time declare any or all of the Secured Indebtedness
immediately due and payable and may terminate any and all Swap
Transactions. Upon any such declaration, such Secured Indebtedness shall,
thereupon be immediately due and payable, and such Swap Transactions shall
immediately terminate, without presentment, demand, protest, notice of protest,
notice of acceleration or of intention to accelerate or any other notice or
declaration of any kind, all of which are hereby expressly waived by Grantor.


 


(b)                                 Intentionally Deleted.


 


(c)                                  Foreclosure/Rights Pertaining to Sale. Trustee, at the request of Administrative
Agent , shall proceed to sell, either by herself or by agent or attorney, the
Property or any part(s) thereof at public venue or outcry at the customary
place to the highest bidder for cash after first giving notice as required by
the statutes of the State of Missouri and upon such sale Trustee shall receive
the proceeds of such sale and shall execute and deliver deed or deeds or other
instruments of conveyance, assignment and transfer to the property sold, to the
purchaser or purchasers thereof. In any sale or sales made by Trustee under the
power herein granted, or upon any sale or sales under or by virtue of any
judicial proceedings:  (i) the whole
of the Property, real, personal and mixed, may be sold in one parcel as an
entirety, or the Property may be sold in separate parcels as may be
determined by Trustee in her discretion; (ii) all recitals contained in
any deed or other instrument of conveyance, assignment or transfer made and
delivered by Trustee in pursuance of the powers granted and conferred herein,
shall be prima facie evidence of the facts therein set forth; (iii) such 


 

















 


sale or sales shall operate
to divest Grantor of all right, title, interest, claim and demand, either at
law or in equity, under statute or otherwise, in and to the Property and every part thereof
so sold and shall be a perpetual bar, both in law or equity, against Grantor
and any and all persons claiming or to claim from, through or under Grantor;
and (iv) Administrative Agent may bid for and purchase the Property or
any part thereof and may make payment therefor by presenting to
Trustee the Note secured hereby or the other evidences of the Secured
Indebtedness so that there may be endorsed as paid thereon the amount of
such bid which is to be applied to payment of the Secured Indebtedness as
herein provided.


 


Grantor
shall not apply for or avail itself of any appraisement, valuation, redemption,
stay, extension or exemption Laws, or any so-called “moratorium laws”, now
existing or hereafter enacted, in order to prevent or hinder the enforcement or
foreclosure of this Deed of Trust, and Grantor hereby waives the benefit of
such Laws. Grantor, for itself, its successors and assigns, hereby wholly
waives the period of redemption and any right of redemption provided under any
existing or future Law in the event of a foreclosure of this Deed of Trust. Grantor,
for itself and all who may claim through or under it, hereby waives any
and all right to have the property and estates comprising the Property marshaled
upon any foreclosure of the lien hereof and hereby agrees that any court having
jurisdiction to foreclose such lien may order the Property sold as an
entirety. Grantor hereby waives any order or decree of foreclosure, pursuant to
the rights herein granted, on behalf of Grantor, and each and every person
acquiring any interest in or title to the Property , subsequent to the date of
this Deed of Trust, and on behalf of all other persons to the extent permitted
by applicable Law.


 


(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 five (5) days prior to the date of public sale of
the Collateral or prior to the date after which private sale of the Collateral
will be made shall constitute reasonable notice; provided that, if
Administrative Agent fails to comply with this clause (3) in any respect,
its liability for such failure shall be limited to the liability (if any)
imposed on it as a matter of law under the UCC, as in effect from time to time
(or under the Uniform Commercial Code, in force from time to time, in any
other state to the extent the same is applicable law); (4) any sale made
pursuant to the provisions of this paragraph shall be deemed to have been a
public sale conducted in a commercially reasonable manner if held
contemporaneously with and upon the same notice as required for the sale of the
Property under power of sale as provided in paragraph (c) above in this Section 5.1;
(5) in the event of a foreclosure sale, whether made by Trustee under the
terms hereof, or under judgment of a court, the Collateral and the other
Property may, at the option of 


 

















 


Administrative Agent, be
sold as a whole; (6) it shall not be necessary that Administrative Agent
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 legal expenses
(including, without limitation, the allocated costs for in-house legal
services) incurred by Administrative Agent; (8) any and all statements of
fact or other recitals made in any bill of sale or assignment or other
instrument evidencing any foreclosure sale hereunder as to nonpayment of the
Secured Indebtedness or as to the occurrence of any Event of Default, or as to
Administrative Agent having declared all of such Secured Indebtedness to be due
and payable, or as to notice of time, place and terms of sale and of the
properties to be sold having been duly given, or as to any other act or thing
having been duly done by Administrative Agent, shall be taken as prima facie
evidence of the truth of the facts so stated and recited; (9) Administrative
Agent may appoint or delegate any one or more persons as agent to perform any
act or acts necessary or incident to any sale held by Administrative Agent,
including the sending of notices and the conduct of the sale, but in the name
and on behalf of Administrative Agent; (10) Administrative Agent may comply
with any applicable state or federal law or regulatory requirements in
connection with a disposition of the Collateral, and such compliance will not
be considered to affect adversely the commercial reasonableness of any sale of
the Collateral; (11) Administrative Agent may sell the Collateral without
giving any warranties as to the Collateral, and specifically disclaim all
warranties including, without limitation, warranties relating to title,
possession, quiet enjoyment and the like, and all warranties of quality,
merchantability and fitness for a specific purpose, and this procedure will not
be considered to affect adversely the commercial reasonableness of any sale of
the Collateral; (12) Grantor acknowledges that a private sale of the Collateral
may result in less proceeds than a public sale; and (13) Grantor
acknowledges that the Collateral may be sold at a loss to Grantor, and
that, in such event, subject to applicable law, Administrative Agent shall have
no liability or responsibility to Grantor for such loss.


 


(e)                                  Lawsuits. Administrative Agent may, to the fullest extent permitted by
applicable law, proceed by a suit or suits in equity or at law, whether for
collection of the Secured Indebtedness, 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.


 


(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, Administrative Agent shall not
be liable for any loss sustained by Grantor resulting from any failure to let
the Property or any part thereof, or from any act or omission of
Administrative Agent in managing the Property unless such loss is caused by the
gross negligence, willful misconduct or bad faith of Administrative Agent, nor
shall Administrative Agent be obligated to perform or discharge any
obligation, duty or liability of Grantor arising under any lease or other
agreement relating to the Property or arising under any Permitted Encumbrance
or otherwise arising. Grantor hereby assents to, ratifies and confirms any and
all lawful actions of Administrative Agent with respect to the Property taken
under this Section.


 


(g)                                 Receiver. Administrative Agent shall as a matter of right be entitled to the
appointment of a receiver or receivers for all or any part of the Property
whether such receivership be incident to a proposed sale (or sales) of such
property or otherwise, and without regard to the value of the Property or the
solvency of any person or persons liable for the payment of the Secured
Indebtedness, 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 of any other right, remedy or privilege it may have
under the law to have a receiver appointed. Any money advanced by
Administrative Agent in connection with any such receivership shall be a demand
obligation (which obligation Grantor hereby promises to pay) owing by Grantor
to Administrative Agent pursuant to this Deed of Trust.


 


(h)                                                         Powers of Administrative Agent. Administrative Agent may, either directly
or through an agent or court-appointed receiver, and without regard to the
adequacy of any security for the Secured Indebtedness:


 


(i)                                     enter, take possession of, manage, operate,
protect, preserve and maintain, and exercise any other rights of an owner of,
the Property, and use any other properties or facilities of Grantor relating to
the Property, all without payment of rent or other compensation to Grantor;


 


(ii)                                  enter into such contracts and take such other
action as Administrative Agent deems appropriate to complete all or any part of
the Improvements or any other construction on the Land, subject to such
modifications and other changes in the Improvements or the plan of development
as Administrative Agent may deem appropriate;


 

















 


(iii)                               make, cancel, enforce or modify leases,
obtain and evict tenants, fix or modify rents and, in its own name or in the
name of Grantor, otherwise conduct any business of Grantor in relation to the
Property and deal with Grantor’s creditors, debtors, tenants, agents and
employees and any other persons having any relationship with Grantor in
relation to the Property, and amend any contracts between them, in any manner
Administrative Agent may determine in its commercially reasonable
judgment;


 


(iv)                              either with or without taking possession of
the Property, notify obligors on any contracts that all payments and other
performance are to be made and rendered directly and exclusively to
Administrative Agent, and in its own name supplement, modify, amend, renew,
extend, accelerate, accept partial payments or performance on, make allowances and
adjustments and issue credits with respect to, give approvals, waivers and
consents under, release, settle, compromise, compound, sue for, collect or
otherwise liquidate, enforce or deal with any contracts or other rights,
including collection of amounts past due and unpaid (Grantor agreeing not to
take any such action, with respect to any obligation in excess of $5,000,  during the continuation of a Default without
prior written authorization from Administrative Agent);


 


(v)                                 endorse, in the name of Grantor, all checks,
drafts and other evidences of payment relating to the Property, and receive,
open and dispose of all mail addressed to Grantor and notify the postal
authorities to change the address for delivery of such mail to such address as
Administrative Agent may designate; and


 


(vi)          take such other
action as Administrative Agent deems appropriate to protect the security of
this Deed of Trust.


 


(i)                                     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 Grantor.


 


(j)                                     Other Rights and Remedies. Administrative Agent may exercise any
and all other rights and remedies which Administrative Agent may have
under the Loan Documents, or at law or in equity or otherwise.


 


Section 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
as follows: (i) FIRST,
to the payment of all necessary costs and expenses incident to such foreclosure
sale, including but not limited to all attorneys’ fees and legal expenses,
advertising costs, auctioneer’s fees, costs of title rundowns and lien
searches, inspection fees, appraisal costs, fees for professional services,
environmental assessment and remediation fees, all court costs and charges of
every character, and a fee of $100 plus all out of pocket costs and expenses,
including, without limitation, attorney’s fees, to Trustee acting under the
provisions of paragraph (c) of Section 5.1 hereof if foreclosed by
power of sale as provided in said paragraph, and to the payment of the other
Secured Indebtedness, including specifically without limitation the principal,
accrued interest and attorneys’ fees due and unpaid 


 

















 


on the Loan and the amounts
due and unpaid and owed to Administrative Agent under this Deed of Trust the
order and manner of application to the items in this clause (all with interest
at the rate per annum provided in the Loan Agreement all in Administrative
Agent’s sole discretion; (ii) SECOND, to amounts due and payable to
Swap Bank under any Swap Transactions, and (iii) THIRD, the
remainder, if any, shall be paid to Grantor, or to Grantor’s successors or
assigns, or such other persons (including the Administrative Agent or
beneficiary of any inferior lien) as may be entitled thereto by law;
provided, however, that if Administrative Agent is uncertain which person or
persons are so entitled, Administrative Agent may interplead such
remainder in any court of competent jurisdiction, and the amount of any
attorneys’ fees, court costs and expenses incurred in such action shall be a part of
the Secured Indebtedness and shall be reimbursable (without limitation) from
such remainder.


 


Section 5.3.
Administrative Agent as Purchaser. Administrative Agent or any Lender shall
have the right to become the purchaser at any sale held by Trustee or
substitute or successor or by any receiver or public officer or at any public
sale, and Administrative Agent or any Lender shall have the right to credit
upon the amount of Administrative Agent’s or such Lender’s successful bid, to
the extent necessary to satisfy such bid, all or any part of the Secured
Indebtedness held by such Lender or, alternatively, all Lenders, in the case of
a purchase by Administrative Agent or its Affiliate acting on behalf of and
with the consent of the Required Lenders, in such manner and order as
Administrative Agent or such Lender may elect.


 


Section 5.4.
Foreclosure as to Matured Debt. Upon the occurrence of a default,
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..


 


Section 5.5.
Remedies Cumulative. All rights and remedies provided for herein and in
any other Loan Document are cumulative of each other and of any and all other
rights and remedies existing at law or in equity, and Trustee and
Administrative Agent shall, in addition to the rights and remedies provided
herein or in any other Loan Document, be entitled to avail themselves of all
such other rights and remedies as may now or hereafter exist at law or in
equity for the collection of the Secured Indebtedness and the enforcement of
the covenants herein and the foreclosure of the liens and security interests
evidenced hereby, and the resort to any right or remedy provided for hereunder
or under any such other Loan Document or provided for by law 


 

















 


or in equity shall not
prevent the concurrent or subsequent employment of any other appropriate right
or rights or remedy or remedies.


 


Section 5.6.
Discretion as to Security. Administrative Agent 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.


 


Section 5.7.
Grantor’s Waiver of Certain Rights. To the full extent Grantor may do
so, Grantor agrees that Grantor will not at any time insist upon, plead, claim
or take the benefit or advantage of any law now or hereafter in force providing
for any appraisement, valuation, stay, extension or redemption, homestead,
moratorium, reinstatement, marshaling or forbearance, and Grantor, for Grantor,
Grantor’s heirs, devisees, representatives, successors and assigns, and for any
and all persons ever claiming any interest in the Property, to the extent
permitted by applicable law, hereby waives and releases all rights of
redemption, valuation, appraisement, stay of execution, notice of intention to
mature or declare due the whole of the Secured Indebtedness, notice of election
to mature or declare due the whole of the Secured Indebtedness and all rights
to a marshaling of assets of Grantor, including the Property, or to a sale in
inverse order of alienation in the event of foreclosure of the liens and/or
security interests hereby created. Grantor shall not have or assert any right
under any statute or rule of law, pertaining to the marshaling of assets,
sale in inverse order of alienation, the exemption of homestead, the
administration of estates of decedents, or other matters whatsoever to defeat,
reduce or affect the right of Administrative Agent under the terms of this 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 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 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.


 


Section 5.8.
Delivery of Possession After Foreclosure. In the event there is a
foreclosure sale hereunder and at the time of such sale, Grantor or Grantor’s
successors as owners of the Property are occupying or using the Property, or
any part thereof, each and all shall immediately become the tenant of the
purchaser at such sale, which tenancy shall be a tenancy from day to day,
terminable at the will of purchaser, at a reasonable rental per day based upon
the value of the property occupied, such rental to be due daily to the
purchaser; and to the extent permitted by applicable law, the purchaser at such
sale shall, notwithstanding any language herein apparently to the contrary,
have the sole option to demand immediate possession following the sale or to
permit the occupants to remain as tenants at will. After such foreclosure, any
leases to tenants or subtenants that are subject to this 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, but
subject to any express agreement between Administrative Agent and such tenant
or subtenant, either (i) continue in full force and effect, and the
tenant(s) or subtenant(s) thereunder will, upon request, attorn to and
acknowledge in writing to the purchaser or purchasers at such sale or sales as
landlord thereunder, or (ii) upon notice to such effect from
Administrative Agent, the Trustees or any purchaser or purchasers, terminate
within thirty (30) days from the date of sale. Subject to the foregoing, in the
event the tenant fails to surrender possession of the Property upon demand, the
purchaser shall be entitled to institute and maintain a summary action for
possession of the Property (such as an action for forcible detainer) in any
court having jurisdiction.


 


ARTICLE 6


Miscellaneous


 


Section 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.


 


Section 6.2.
Effective as a Financing Statement and Fixture Filing. 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 minerals or the
like (including oil and gas), timber, accounts and general intangibles under
the UCC, as amended, and similar provisions (if any) of the Uniform Commercial
Code as enacted in any other state where the Property is situated which will be
financed at the wellhead or minehead of the wells or mines located on the
Property and is to be filed for record in the real estate records of each
county where any part of the Property is situated. To the extent permitted
under applicable law, this Deed of Trust shall also be effective as a financing
statement covering any surplus of withheld funds resulting from the invalidity
of “stop notice” claims or the failure of claimants to prosecute their claims
to judgment and any other Property in which an interest can be perfected by
filing and may be filed in any other appropriate filing or recording
office. The mailing address of Grantor and the Administrative Agent are set
forth in the introductory paragraph of this Deed of Trust. To the extent
permitted under applicable law, 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. Grantor is the record owner of the Property.


 


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 notify the
account debtors or obligors of any accounts, chattel paper, general
intangibles, negotiable instruments or other evidences of indebtedness included
in the Collateral to pay Administrative Agent directly.


 


Section 6.4.
Waiver by Administrative Agent. Administrative Agent may at any
time and from time to time by a specific writing intended for the purpose: (a) waive
compliance by Grantor with any covenant herein made by Grantor to the extent
and in the manner specified in 


 

















 


such writing; (b) consent
to Grantor’s doing any act which hereunder Grantor is prohibited from doing, or
to Grantor’s failing to do any act which hereunder Grantor is required to do,
to the extent and in the manner specified in such writing; (c) release any
part of the Property or any interest therein from the lien and security
interest of this 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.


 


Section 6.5.
No Impairment of Security. The lien, security interest and other
security rights of Administrative Agent hereunder or under any other Loan
Document shall not be impaired (except to the extent expressly stated therein)
by any indulgence, moratorium or release granted by Administrative Agent
including, but not limited to, any renewal, extension or modification which
Administrative Agent may grant with respect to any Secured Indebtedness,
or any surrender, compromise, release, renewal, extension, exchange or
substitution which Administrative Agent may grant in respect of the
Property, or any part thereof or any interest therein, or any release or
indulgence granted to any endorser, guarantor or surety of any Secured
Indebtedness. The taking of additional security by Administrative Agent shall
not release or impair the lien, security interest or other security rights of
Administrative Agent hereunder or affect the liability of Grantor or of any endorser,
guarantor or surety, or improve the right of any junior lienholder in the
Property (without implying hereby Administrative Agent’s consent to any junior
lien).


 


Section 6.6.
Acts Not Constituting Waiver by Administrative Agent. Administrative
Agent may waive any default without waiving any other prior or subsequent
default. Administrative Agent may remedy any default without waiving the
default remedied. Neither failure by Administrative Agent to exercise, nor
delay by Administrative Agent in exercising, nor discontinuance of the exercise
of any right, power or remedy (including but not limited to the right to
accelerate the maturity of the Secured Indebtedness or any part thereof)
upon or after any default shall be construed as a waiver of such default or as
a waiver of the right to exercise any such right, power or remedy at a later
date. No single or partial exercise by Administrative Agent of any right, power
or remedy hereunder shall exhaust the same or shall preclude any other or
further exercise thereof, and every such right, power or remedy hereunder may be
exercised at any time and from time to time. No modification or waiver of any
provision hereof nor consent to any departure by Grantor therefrom shall in any
event be effective unless the same shall be in writing and signed by
Administrative Agent and then such waiver or consent shall be effective only in
the specific instance, for the purpose for which given and to the extent
therein specified. No notice to nor demand on Grantor in any case shall of
itself entitle Grantor to any other or further notice or demand in similar or
other circumstances. Remittances in payment of any part of the Secured
Indebtedness other than in the required amount in immediately available U.S.
funds shall not, regardless of any receipt or credit issued therefor,
constitute payment until the required amount is actually received by
Administrative Agent in immediately available U.S. funds and shall be made and
accepted subject to the condition that any check or draft may be handled
for collection in accordance with the practice of the collecting bank or banks.
Acceptance by Administrative Agent of any payment in an amount less than the
amount then due 


 

















 


on any Secured Indebtedness
shall be deemed an acceptance on account only and shall not in any way excuse
the existence of a default hereunder notwithstanding any notation on or
accompanying such partial payment to the contrary.


 


Section 6.7.
Grantor’s Successors. If the ownership of the Property or any part thereof
becomes vested in a person other than Grantor, Administrative Agent may,
without notice to Grantor, deal with such successor or successors in interest
with reference to this 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 no extension of the
time for the payment of the Secured Indebtedness given by Administrative Agent
shall operate to release, discharge, modify, change or affect, in whole or in
part, the liability of Grantor hereunder for the payment of the indebtedness or
performance of the obligations secured hereby or the liability of any other
person hereunder for the payment of the indebtedness secured hereby. Unless
agreed to in writing in connection with Administrative Agent’s consent to the
transfer, each Grantor agrees that it shall be bound by any modification of
this 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 (i) impair the obligations of
such Grantor under this Deed of Trust or any other Loan Document or (ii) increase
the obligations of Grantor, unless consented to in writing by 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 consent to any transfer of the Property.


 


Section 6.8.
Place of Payment; Forum; Waiver of Jury Trial. All Secured Indebtedness
which may be owing hereunder at any time by Grantor shall be payable at
the place designated in the Loan Agreement (or if no such designation is made,
at the address of Administrative Agent indicated at the end of this 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 Dallas, Texas, and
to the non-exclusive jurisdiction of any State court or any United States
federal court sitting in the state in which any of the Property is located,
over any suit, action or proceeding arising out of or relating to this 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 be
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, ADMINISTRATIVE AGENT 


 

















 


AND THE LENDERS EACH WAIVE
THE RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY ACTION, SUIT OR OTHER
PROCEEDING ARISING OUT OF OR RELATING TO THIS DEED OF TRUST OR ANY OTHER LOAN
DOCUMENT.


 


Section 6.9.
Subrogation to Existing Liens. To the extent that proceeds of the Loan
are used to pay indebtedness secured by any outstanding lien, security
interest, charge or prior encumbrance against the Property, such proceeds have
been advanced by Administrative Agent at Grantor’s request, and Administrative
Agent shall be subrogated to any and all rights, security interests and liens
owned by any owner or Administrative Agent of such outstanding liens, security
interests, charges or encumbrances, however remote, irrespective of whether
said liens, security interests, charges or encumbrances are released, and all
of the same are recognized as valid and subsisting and are renewed and continued
and merged herein to secure the Secured Indebtedness, but the terms and
provisions of this 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, Grantor hereby waives and releases all demands and causes of action for
offsets and payments in connection with the said indebtedness.


 


Section 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 Secured Indebtedness, then all
payments made shall be applied on said Secured Indebtedness first in discharge
of that portion thereof which is not secured by this Deed of Trust.


 


Section 6.11.
Nature of Loan; Compliance with Usury Laws. The Loan is being made
solely for the purpose of carrying on or acquiring a business or commercial
enterprise. It is the intent of Grantor and Administrative Agent and all other
parties to the Loan Documents to conform to and contract in strict
compliance with applicable usury law from time to time in effect. All
agreements between Administrative Agent and Grantor (or any other party liable
with respect to any indebtedness under the Loan Documents) are hereby limited
by the provisions of this Section which shall override and control all
such agreements, whether now existing or hereafter arising. In no way, nor in
any event or contingency (including but not limited to prepayment, default,
demand for payment, or acceleration of the maturity of any obligation), shall
the interest taken, reserved, contracted for, charged, chargeable, or received
under this Deed of Trust, the Loan Agreement, the Note or any other Loan
Document or otherwise, exceed the maximum nonusurious amount permitted by applicable
law (the “Maximum Amount”). If, from any possible construction of any
document, interest would otherwise be payable in excess of the Maximum Amount,
any such construction shall be subject to the provisions of this Section and
such document shall ipso facto be automatically reformed and the interest
payable shall be automatically reduced to the Maximum Amount, without the
necessity of execution of any amendment or new document. If Administrative
Agent shall ever receive anything of value which is characterized as interest
under applicable law and which would apart from this provision be in
excess of the Maximum Amount, an amount equal to the amount which would have
been excessive interest shall, without penalty, be applied to the reduction of
the principal amount owing on the Secured Indebtedness in the inverse order of
its maturity and not to the 


 

















 


payment of interest, or
refunded to Grantor or the other payor thereof if and to the extent such amount
which would have been excessive exceeds such unpaid principal. The right to
accelerate maturity of the Loan or any other Secured Indebtedness does not
include the right to accelerate any interest which has not otherwise accrued on
the date of such acceleration, and Administrative Agent does not intend to
charge or receive any unearned interest in the event of acceleration. All
interest paid or agreed to be paid to Administrative Agent shall, to the extent
permitted by applicable law, be amortized, prorated, allocated and spread
throughout the full stated term (including any renewal or extension) of such
indebtedness so that the amount of interest on account of such indebtedness
does not exceed the Maximum Amount. As used in this Section, the term “applicable
law” shall mean the laws of the State of Texas, or the federal laws of the
United States applicable to this transaction, whichever laws allow the greatest
interest, as such laws now exist or may be changed or amended or come into
effect in the future.


 


Section 6.12.
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 indebtedness
secured hereby has been paid in full, or until the Property is fully and
finally sold hereunder. If Administrative Agent is a corporation or association
and such appointment is executed on its behalf by an officer of such
corporation or association, such appointment shall be conclusively presumed to
be executed with authority and shall be valid and sufficient without proof of
any action by the board of directors or any superior officer of the corporation
or association. Upon the making of any such appointment and designation, all of
the estate and title of Trustee in the Property shall vest in the named
successor or substitute Trustee(s) and 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.


 


Section 6.13.
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 its 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 its 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.


 


Section 6.14.
Release.


 


(a)                                  Release from Deed of Trust. If (i) all of the Secured Indebtedness
be paid as the same becomes due and payable and all of the covenants,
warranties, undertakings and agreements made in this Deed of Trust are kept and
performed (other than surviving indemnity obligations as to which no claims are
then pending), and all Swap Transactions and all other obligations under the
Loan Documents, if any, of Lenders for further advances have been terminated,
or (ii) Grantor is entitled to a release of this Deed of Trust in
accordance with the terms of the Loan Agreement, then, and in that event only,
all rights under this Deed of Trust shall terminate (except to the extent
expressly provided herein with respect to indemnifications, representations and
warranties and other rights which are to continue following the release hereof)
and the Property shall become wholly clear of the liens, security interests,
conveyances and assignments evidenced hereby, and the Property shall be
released by Administrative Agent in due form at Grantor’s cost. Without
limitation, all provisions herein for indemnity of Administrative Agent or
Trustee shall survive discharge of the Secured Indebtedness, the termination of
any and all Swap Transactions and any foreclosure, release or termination of
this Deed of Trust.


 


(b)                                 Partial Release; No Release in Default. Except as otherwise provided in the Loan
Agreement, Administrative Agent may, regardless of consideration, cause the
release of any part of the Property from the lien of this Deed of Trust
without in any manner affecting or impairing the lien or priority of this Deed
of Trust as to the remainder of the Property. No partial release shall be
sought, requested or required if any Default has occurred which has not been
cured.


 


(c)                                  Release Fee. Grantor agrees to pay reasonable fees, not to exceed the maximum
amounts legally permitted, for Trustee’s rendering of services in connection
with each partial or complete release of the Property from the lien of this
Deed of Trust.


 


Section 6.15.
Notices. All such notices, demands, requests, consents and other
communications shall be deemed sufficiently given or furnished if delivered by
personal delivery, by courier, by registered or certified United States mail,
postage prepaid, or by facsimile (with, subject to Subsection 6.3.2 of the
Loan Agreement, a confirmatory duplicate copy sent by first class United
States mail), addressed to the party to whom directed or by (subject to Subsection 6.3.3
of the Loan Agreement) electronic mail address to Grantor, at the addresses set
forth at the end of this Agreement or to Administrative Agent or Lenders at the
addresses specified for notices in the Loan Agreement (unless changed by
similar notice in writing given by the particular party whose address is to be
changed). Any such notice or communication shall be deemed to have been given
and received either at the time of personal delivery or, in the case of courier
or mail, as of the date of first attempted delivery at the address and in the
manner provided herein, or, in the case of facsimile, upon receipt; provided,
however, that service of a notice required any applicable statute, shall be
considered complete when the 


 

















 


requirements of that statute
are met. Notwithstanding the foregoing, no notice of change of address shall be
effective except upon actual receipt. This Section shall not be construed
in any way to affect or impair any waiver of notice or demand provided in any
Loan Document or to require giving of notice or demand to or upon any person in
any situation or for any reason.


 


Section 6.16.
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.


 


Section 6.17.
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.


 


Section 6.18.
Reporting Compliance. Grantor agrees to comply with any and all
reporting requirements imposed upon Grantor, Grantor’s affiliates, Guarantor,
Guarantor’s affiliates with respect to the transaction evidenced by the Loan
Documents and secured by this Deed of Trust which are set forth in any law,
statute, ordinance, rule, regulation, order or determination of any
governmental authority, including but not limited to The International
Investment Survey Act of 1976, The Agricultural Foreign Investment Disclosure
Act of 1978, The Foreign Investment in Real Property Tax Act of 1980 and the
Tax Reform Act of 1984 and further agrees upon request of Administrative
Agent to furnish Administrative Agent with evidence of such compliance.


 


Section 6.19.
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 that this instrument is executed, acknowledged and
delivered by Grantor’s duly authorized representatives. If Grantor is an
individual, no power of attorney granted by Grantor herein shall terminate on
Grantor’s disability.


 


Section 6.20.
Execution; Recording. This Deed of Trust may be executed in several
counterparts, all of which are identical, and all of which counterparts
together shall constitute one and the same instrument. The date or dates
reflected in the acknowledgments hereto indicate 


 

















 


the date or dates of actual
execution of this 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.


 


Section 6.21.          Successors and Assigns. The
terms, provisions, covenants and conditions hereof shall be binding upon
Grantor, and the successors and assigns of Grantor, and shall inure to the
benefit of Trustee and Administrative Agent and shall constitute covenants
running with the Land. All references in this Deed of Trust to Grantor shall be
deemed to include all such heirs, devisees, representatives, successors and
assigns of Grantor.


 


Section 6.22.                             No Partnership, Etc.. The relationship between Administrative
Agent and Grantor is solely that of lender and borrower. Administrative Agent
has no fiduciary or other special relationship with Grantor. Nothing contained
in the Loan Documents is intended to create any partnership, joint venture,
association or special relationship between Grantor and Administrative Agent or
in any way make Administrative Agent a co-principal with Grantor with reference
to the Property. All agreed contractual duties between or among Administrative
Agent, Trustee and Grantor are set forth herein and in the other Loan Documents
and any additional implied covenants or duties are hereby disclaimed. Any
inferences to the contrary of any of the foregoing are hereby expressly
negated.


 


Section 6.23.                             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 MISSOURI
(WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES) AND APPLICABLE UNITED
STATES FEDERAL LAW.


 


Section 6.24.                             No Merger of Estates. So long as any part of the Secured
Indebtedness secured hereby remain unpaid and unperformed or undischarged, the
fee and leasehold estates to the Property shall not merge but rather shall
remain separate and distinct, notwithstanding the union of such estates either
in Grantor, Administrative Agent, any lessee, or any third party purchaser or
otherwise.


 


Section 6.25.                             Entire Agreement. The Loan Documents constitute the entire
understanding and agreement between Grantor and Administrative Agent with
respect to the transactions arising in connection with the Secured Indebtedness
and supersede all prior written or oral understandings and agreements between
Grantor and Administrative Agent with respect to the matters addressed in the
Loan Documents. Grantor hereby acknowledges that, except as incorporated in
writing in the Loan Documents, there are not, and were not, and no persons are
or were authorized by Administrative Agent to make, any representations,
understandings, 


 

















 


stipulations, agreements or
promises, oral or written, with respect to the matters addressed in the Loan
Documents.


 


THE
WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.


 


THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.


 


[REMAINDER OF THIS PAGE INTENTIONALLY LEFT
BLANK]


 

















 


IN
WITNESS WHEREOF, Grantor has executed this instrument under seal as of the date
first written on page 1 hereof.


 


	
   

  	
  GRANTOR:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE PRIVATE RESIDENCES,
  LLC,

  
	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Behringer Harvard Private
  Residences, Inc.,

  
	
   

  	
   

  	
  a Delaware corporation,
  its authorized member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  	
   

  
	
   

  	
   

  	
   

  	
  Gerald J. Reihsen, III

  
	
   

  	
   

  	
   

  	
  Executive Vice President -
  Corporate 

  
	
   

  	
   

  	
   

  	
  Development &
  Legal and Secretary

  
						



 


 


	
  STATE OF TEXAS

  	
  )

  
	
   

  	
  )

  
	
  COUNTY OF DALLAS

  	
  )

  



 


On
this 13th day of November, in the year 2007, before me, Catherine
E. Mea, a Notary Public in and for said state, personally appeared Gerald
J. Reihsen, III, the Executive Vice President - Corporate Development &
Legal and Secretary of Behringer Harvard Private Residences, Inc., a
Delaware corporation, authorized member of The Private Residences, LLC, a Delaware
limited liability company, known to be the person who executed the within
instrument in behalf of said limited liability company and acknowledged to me
that she/he executed the same for the purposes therein stated.


 


IN
TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in
the County and State aforesaid, the day and year first above written.


 


 


	
   

  	
  /s/ Catherine E. Mea

  
	
   

  	
                               Notary
  Public

  



 


(SEAL)


 


 


My Commission Expires:


 


DEED
OF TRUST, SECURITY AGREEMENT, FIXTURE FILING AND FINANCING STATEMENT- Signature Page


 

















 


EXHIBIT A


 


LEGAL DESCRIPTION


 


Land situated in the City of
St. Louis, and State of Missouri, to wit:


 


Parcel 1
(Fee Simple):


 


Units 8, 10, 11, 12, 13, 14
and 15 of Park Plaza Master Condominium, a Condominium in City Block 3882,
according to the plat thereof recorded in Book 12082006 page 0379,
including an un-divided interest in the common elements thereto belonging, all
according to and more particularly described in the Master Declaration of
Condominium Park Plaza Master Condominium dated December 1, 2006 and
recorded December 8, 2006 in Book 12082006 page 0378 of the St. Louis
County Records.


 


Parcel 2
(Easement):


 


Sub-surface easement more
particularly described as follows: A portion of the public street rights-of-way
known as Kingshighway Boulevard, 100 feet wide, and Maryland Plaza, 80 feet
wide, adjacent to Block 3882 of the City of St. Louis, Missouri, lying between
horizontal planes at elevation 72.35 and 82.20 above 0.00 on the St. Louis City
Datum and bounded by vertical planes described as follows: Commencing at the
intersection of the Northern line of Lindell Boulevard, 100 feet wide,
with the Eastern line of Kingshighway Boulevard, 100 feet wide; thence along
said Eastern line of Kingshighway Boulevard, North 6 degrees 21 minutes 40
seconds West, 233.89 feet to the point of beginning of the herein described
tract of land; thence leaving said Eastern street line, and running South 85
degrees 17 minutes 58 seconds West, 17.01 feet to a point; thence along a line
parallel with the Eastern line of Kingshighway Boulevard, North 6 degrees 21
minutes 40 seconds West, 202.48 feet to a point; thence North 36 degrees 10
minutes 13 seconds East, 34.20 feet to a point; thence along a line parallel
with the Southern line of Maryland Plaza, South 88 degrees 57 minutes 40
seconds East, 107.00 feet to a point; thence North 86 degrees 28 minutes 40 seconds
East, 25.15 feet to a point; thence along a line parallel with the Southern
line of Maryland Plaza, South 88 degrees 57 minutes 40 seconds East, 61.50 feet
to a point; thence south 6 degrees 21 minutes 40 seconds East, 14.12 feet to a
point on the Southern line of Maryland Plaza at the Northeast corner of
property conveyed to Singleton by Deed recorded in Book 4189 page 404 of
the St. Louis City records; thence along the Southern line of Maryland Plaza,
North 88 degrees 57 minutes 40 seconds West, 200.00 feet to its intersection with
the Eastern line of Kingshighway Boulevard, as aforementioned; thence along
said Eastern street line, South 6 degrees 21 minutes 40 seconds East, 216.87
feet to the point of beginning.


 


Parcel 3
(Easement):


 


Easement for the purpose of
vehicular and pedestrian access, ingress and egress, according to Easement
Agreement and Parking Space Lease dated July 31, 1998, by and between


 


Ehibit A - Page 1


 

















 


W.S. Stallings Corporation,
and Kingsdell L.P., recorded October 22, 1998 in Book 1444M page 1253
over the area described therein as follows:


 


A tract of land in Block
3882 of the City of St. Louis, Missouri, and described as follows:  Beginning at a point in the South line of Maryland
Avenue distant 200 feet 0 inches East of the intersection of said South
line with the East line of Kingshighway Boulevard; thence Southwardly parallel
with Kingshighway Boulevard along the East line of property conveyed to Marvin
E. Singleton by deed recorded in Book 4189 page 404, 94 feet 9-1/2 inches
to a point distant 94 feet 0 inches South of the South line of Maryland Avenue;
thence Eastwardly parallel with Maryland Avenue and along the North line of
property conveyed to Harvey Imbolden by deed recorded in Book 6227 page 294,
62 feet 0-3/8 inches to a point; thence Northwardly perpendicular with Maryland
Avenue, 39 feet 0 inches to a point; thence Westwardly parallel with Maryland
Avenue, 25 feet 6 inches to a point; thence Northwardly perpendicular with
Maryland Avenue, 55 feet 0 inches to a point in the South line of Maryland
Avenue, 48 feet 9 inches to the point of beginning.


 


Parcel 4
(Easement):


 


Easements for the purpose of
construction, use, maintenance, repair and reconstruction of driveways and
ingress and egress created by instrument designated “Driveway Easement
Agreement”, dated May 18, 1981 and recorded in Book 271M page 64 on May 31,
1981 over the following described property:


 


Easement “A”:


 


A tract of land being part of
Block 3882 of the City of St. Louis, Missouri, and described as follows:  Beginning at a point on the West line of York
Avenue, 40 feet wide, at the Northeast corner of property conveyed to “220
Television Inc.”, by deed recorded in Book 154M page 1091 of the St. Louis
City records, said point being distant North 7 degrees 08 minutes 40 seconds
West, 215.57 feet from the Northern line of Lindell Boulevard, 100 feet wide,
as measured along the Western line of York Avenue; thence leaving said Western
street line and running along the Northern line of “220 Television Inc.”, North
88 degrees 57 minutes 40 seconds West, 88.41 feet to a point, said point being
on the direct Southward prolongation of the Eastern wall of a Concrete Parking
Garage; thence leaving said point and running along said prolongation, North 1
degree 06 minutes 00 seconds East, 20.00 feet to a point; thence leaving said
point and running South 88 degrees 57 minutes 40 seconds East, 85.51 feet to a
point on the Western line of York Avenue, as aforementioned; thence along said
Western street line South 7 degrees 08 minutes 40 seconds East, 20.21 feet to
the point of beginning.


 


Easement “B”:


 


A tract of land being part of
Block 3882 of the City of St. Louis, Missouri, and described as follows:  Commencing at a point on the Western line of
York Avenue, 40 feet wide, at the Southeast corner of property conveyed to H &
M Koplar by deed recorded in Book 207M page 206 of the St. Louis City
records, said point being distant South 7 degrees 08 minutes 40 seconds 


 


Ehibit A - Page 2


 

















 


East, 94.97 feet from the
Southern line of Maryland Plaza, 80 feet wide, as measured along the Western
line of York Avenue; thence along said Western street line South 7 degrees 08
minutes 40 seconds East, 19.00 feet to the point of beginning of the herein
described tract of land; thence continuing along said street line South 7
degrees 08 minutes 40 seconds East, 34.00 feet to a point; thence leaving said
Western street line and running North 75 degrees 38 minutes 39 seconds West,
8.51 feet and North 84 degrees 43 minutes 40 seconds West 67.74 feet to a point
on the Eastern wall of a concrete parking garage; thence along said Eastern
wall North 1 degree 06 minutes 00 seconds East, 20.50 feet to a point; thence
leaving said point and running North 89 degrees 06 minutes 58 seconds East,
59.61 feet and North 70 degrees 50 minutes 17 seconds East, 12.14 feet to the
point of beginning.


 


Parcel 5
(Easement):


 


Easement for the purpose of
construction use, storage, maintenance, demolition, repair and reconstruction
of a basement, including access thereto, created by instrument designated “Basement
Easement Agreement”, dated May 18, 1981 and recorded in Book 271M page 84
on May 21, 1981 over the following described property;


 


A tract of land being part of
Block 3882 of the City of St. Louis, Missouri, and described as follows:
Commencing at a point on the Northern line of Lindell Boulevard, 100 feet wide,
at the Southwest corner of property conveyed to “220 Television Inc.”, by deed
recorded in Book 154M page 1091 of the St. Louis City records; thence
along the Northern line of Lindell Boulevard South 89 degrees 00 minutes 00
seconds East, 5.92 feet to a point; thence leaving said street line and running
North 1 degrees 02 minutes 17 seconds East, 24.71 feet to the point of
beginning of the herein described tract of land; thence continuing along the
last mentioned line, North 1 degree 02 minutes 17 seconds East, 86.65 feet to
its intersection with the Southern wall of a two story brick and concrete
block building; thence along the wall of said building the following bearing
and distances: North 88 degrees 53 minutes 07 seconds West, 1.20 feet; North 0
degrees 55 minutes 46 seconds East, 1.36 feet; South 88 degrees 53 minutes 07
seconds East, 1.20 feet; North 0 degrees 55 minutes 46 seconds East, 50.77 feet
and North 88 degrees 53 minutes 01 seconds West, 9.04 feet to its intersection with
the Eastern wall of a one story brick and concrete block building; thence along
the wall line of said one story and said two story buildings North 1 degree 06
minutes 59 seconds East, 24.32 feet to the Northeast corner of said one story
building; thence leaving said point and running the following bearings and
distances; South 88 degrees 52 minutes 34 seconds East, 8.51 feet; South 1
degree 06 minutes 59 seconds West, 12.67 feet; South 88 degrees 53 minutes 01
seconds East, 8.93 feet and South 1 degree 12 minutes 50 seconds West, 57.77
feet to the Northwest corner of an eight story brick building; thence along the
Western wall of said building and the following bearings and distances: South 1
degree 23 minutes 44 seconds East, 78.19 feet; South 88 degrees 36 minutes 16
seconds West, 0.27 feet and South 1 degree 23 minutes 44 seconds East, 14.46
feet to the Southwest corner thereof; thence leaving said point and running
North 89 degrees 17 minutes 57 seconds West, 11.81 feet to the point of
beginning.


 


Ehibit A - Page 3


 

















 


Parcel 6
(Easement):


 


Easements for ingress,
egress, and placement of mechanical systems and storage units, created by the
Reciprocal Easement Agreement executed by and between Chase Park Plaza Hotel,
LLC and The Private Residences, LLC, dated December 1, 2006 and recorded December 8,
2006 in Book 12082006 page 0382 and re-recorded December 13, 2006 in
Book 12132006, Page 0266.


 


Ehibit A - Page 4