EXHIBIT 10.2


 


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 Chase
Park Plaza Hotel, 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.


 


“Assignment of
Rents, Leases and Receivables” means the Assignment of
Rents, Leases and Receivables dated of even date herewith encumbering the
Property and


 


DEED OF TRUST,
SECURITY AGREEMENT, FIXTURE FILING AND FINANCING STATEMENT
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collaterally assigning to Administrative Agent for the benefit of
Lenders a first priority collateral assignment and security interest in all
rents, room revenues and other income and receivables from the Property.


 


“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 in the Condominium.


 


“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 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.


 


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


 


“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.


 


“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.


 


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


 


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


 


“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.


 


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“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.


 


“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 $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 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
Loan” means that certain acquisition and renovation loan from Lenders to
The Private Residences, LLC, a Delaware limited liability company (“Residential
Borrower”), in the maximum principal amount of $58,800,000.


 


“Residential
Loan Agreement” means that certain Construction Loan Agreement dated of
even date herewith, executed by Residential 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.


 


“Residential
Loan Documents” means the Residential Loan Agreement, any and all notes, deed
of trust, guaranty, financing statements, and other documents, instruments or
agreements evidencing, securing or pertaining to the Residential Loan as shall,
from time to time, be executed and/or delivered by Residential 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.


 


“Residential
Loan Note”
means, collectively, whether one or more, (a) each Promissory Note issued
by Residential Borrower pursuant to the terms of the Residential 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 Residential 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 Residential
Loan Agreement.


 


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Additionally, the Residential Loan Agreement provides that the
principal balance of the Residential Loan shall bear interest at a floating
rate of interest subject to change from time to time.


 


“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 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;


 


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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)


 


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SECURITY AGREEMENT, FIXTURE FILING AND FINANCING STATEMENT
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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 Act), including the right
to vote, as provided in the Condominium Declaration;


 


(e)              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


 


(f)               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


 


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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; and (v) 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


 


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(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
Residential 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 Residential Loan
Agreement and the other Residential 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.


 


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(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;


 


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(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


 


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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


 


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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


 


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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


 


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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


 


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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


 


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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


 


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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 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


 


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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 (as defined in
the Assignment of Rents, Lease and Receivables); (2) if any action
(whether judicial or pursuant to a power of sale) shall be instituted to
foreclose or otherwise enforce the Subordinate Lien, no tenant of any of the
Leases shall be named as a party defendant, and no action shall be taken that
would terminate any occupancy or tenancy without the prior written consent of
Administrative Agent; (3) Rents (as defined in the Assignment of Rents,
Lease and Receivables), 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,


 


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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


 


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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 4253489. 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


 


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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


 


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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


 


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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.


 


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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.


 


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Section 2.4.            Authorization to File Financing
Statements; Power of Attorney. Grantor hereby authorizes Administrative
Agent at any time and from time to time to file any initial financing
statements, amendments thereto and continuation statements as authorized by
applicable law, required by Administrative Agent to establish or maintain the
validity, perfection and priority of the security interests granted in this
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.


 


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(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.


 


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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 Residential Loan
Documents. The occurrence of a Default under (and as defined in) the
Residential Loan Agreement or event of default (however defined in) any other
Residential 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 


 


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shall, thereupon be immediately due and payable, and such Swap
Transactions shall immediately terminate, without presentment, demand, protest,
notice of protest, notice of acceleration or of intention to accelerate or any
other notice or declaration of any kind, all of which are hereby expressly
waived by Grantor.


 


(b)           Enforcement of Assignment of
Rents, Lease and Receivables. Administrative Agent may take any of the
actions described in the Assignment of Rents, Lease and Receivables with or
without taking possession of any portion of the Property or taking any action
with respect to such possession.


 


(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.


 


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(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 


 


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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 


 


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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);


 


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(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 


 


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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 


 


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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 


 


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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


 


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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 


 


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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 


 


DEED OF TRUST,
SECURITY AGREEMENT, FIXTURE FILING AND FINANCING STATEMENT
- Page 37


 

















 


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 


 


DEED OF TRUST,
SECURITY AGREEMENT, FIXTURE FILING AND FINANCING STATEMENT
- Page 38


 

















 


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 


 


DEED OF TRUST,
SECURITY AGREEMENT, FIXTURE FILING AND FINANCING STATEMENT
- Page 39


 

















 


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. 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 


 


DEED OF TRUST,
SECURITY AGREEMENT, FIXTURE FILING AND FINANCING STATEMENT
- Page 40


 

















 


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 


 


DEED OF TRUST,
SECURITY AGREEMENT, FIXTURE FILING AND FINANCING STATEMENT
- Page 41


 

















 


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 


 


DEED OF TRUST,
SECURITY AGREEMENT, FIXTURE FILING AND FINANCING STATEMENT
- Page 42


 

















 


PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.


 


THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.


 


[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]


 


DEED OF TRUST,
SECURITY AGREEMENT, FIXTURE FILING AND FINANCING STATEMENT
-Page 43


 

















 


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


 


	
   

  	
  GRANTOR:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CHASE PARK PLAZA HOTEL, LLC,

  	
   

  
	
   

  	
  a Delaware limited liability company

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Behringer Harvard Opportunity OP I, LP,

  	
   

  
	
   

  	
   

  	
  a Texas limited partnership, its authorized member

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  BHO, Inc., a Delaware corporation,

  	
   

  
	
   

  	
   

  	
   

  	
  its general partner

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Name:Gerald J. Reihsen, III

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Title: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 BHO, Inc., a Delaware
corporation, general partner of Behringer Harvard Opportunity OP I LP, a Texas
limited partnership, authorized member of Chase Park Plaza Hotel, 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.


 


	
   

  	
  Catherine E. Mea

  
	
   

  	
  Notary
  Public

  
	
   

  	
   

  



 


(SEAL)


 


My Commission Expires:


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


 

















 


EXHIBIT A


 


LEGAL DESCRIPTION


 


Parcel 1 (Fee Simple):


 


Units 1, 2, 3, 3A, 4, 5, 6, 7, 9 and 16 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 City 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 (Fee Simple):


 


A tract of land in Block 3882 of the City of St. Louis, Missouri,
beginning at the intersection of the Northern line of Lindell Boulevard, 100
feet wide, with the Eastern line of Kingshighway, 100 feet wide; thence along
said Eastern line of Kingshighway Boulevard, North 6 degrees 21 minutes 40
seconds West, 247.83 feet to a point; thence leaving said street line and
running the 


 


Exhibit A - Page 1


 

















 


following; North 85 degrees 17 minutes 58 seconds East, 137.39 feet;
South 4 degrees 42 minutes 25 seconds East, 8.16 feet and South 89 degrees 33
minutes 08 seconds East, 61.67 feet to a point; thence North 6 degrees 21
minutes 40 seconds West 1.98 feet to a point; thence South 89 degrees 00
minutes 00 seconds East 46.97 feet to a point; thence North 1 degree 02 minutes
20 seconds East 98.99 feet to a point; thence leaving said point and running
along a line parallel with and 94.00 feet perpendicular distant South of the
Southern line of Maryland Plaza, South 88 degrees 57 minutes 40 seconds East
252.68 feet to a point, said point being distant North 88 degrees 57 minutes 40
seconds West, 68.24 feet from the Western line of York Avenue, as measured
along the last mentioned line and located on the direct Northward prolongation
of the Eastern wall of a concrete parking garage; thence leaving said point and
running along said prolongation, along the Eastern wall of said parking garage
and along its direct Southward prolongation South 1 degree 06 minutes 00
seconds West, 139.23 feet to a point on the Northern line 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 88 degrees 57 minutes 40
seconds West, 88.41 feet from the Western line of York Avenue, as measured
along said Northern line; thence leaving the aforementioned point and running
along the Northern line of “220 Television, Inc.”, North 88 degrees 57 minutes
40 seconds West, 18.06 feet to the Northwest corner thereof; thence along the
Western line of said property, South 1 degree 02 minutes 20 seconds West, 25.63
feet to a point on the Northern wall of a one story, brick and concrete
building; thence leaving said Western property line and running along said
Northern wall line South 88 degrees 52 minutes 34 seconds East, 6.97 feet to
the Northeast corner of said one story building and located on the Western wall
of a two story brick and concrete block building; thence along the wall line of
said one story building and said two story building, South 1 degree 06 minutes
59 seconds West, 24.32 feet to a point; thence leaving the Eastern wall of said
one story building and running along the wall of said two story building the
following:  South 88 degrees 53 minutes
01 seconds East, 9.04 feet; South 0 degrees 55 minutes 46 seconds West, 50.77
feet; North 88 degrees 53 minutes 07 seconds West, 1.20 feet; South 0 degrees 55
minutes 46 seconds West, 1.36 feet and South 88 degrees 53 minutes 07 seconds
East, 1.20 feet to a point; thence leaving said wall line and running South 1
degree 02 minutes 17 seconds West, 111.36 feet to a point on the Northern line
of Lindell Boulevard, as aforementioned, said point being distant South 89
degrees 00 minutes 00 seconds East, 5.92 feet from the Southwest corner of
property conveyed to “220 Television Inc.”, as measured along the Northern line
of Lindell Boulevard; thence leaving said point and running along the Northern
line of said Lindell Boulevard North 89 degrees 00 minutes 00 seconds West,
464.53 feet to the point of beginning.


 


Parcel 4 (Fee Simple):


 


A tract of land being part of Block 3882 of the City of St. Louis,
Missouri, and described as follows: 
Commencing at the intersection of the Eastern line of Kingshighway
Boulevard, 100 feet wide, with the Southern line of Maryland Plaza, 80 feet
wide; thence along said Southern line of Maryland Plaza, South 88 degrees 57
minutes 40 seconds East, 200.00 feet to a point, said point being the Northeast
corner of property conveyed to Singleton by deed recorded in Book 4189 page 404
of the St. Louis City records; thence leaving said street line and running
along a line parallel with the Eastern line of Kingshighway Boulevard and being
the Eastern line of said 


 


Exhibit A - Page 2


 

















 


Singleton property South 6 degrees 21 minutes 40 seconds East, 94.79
feet to a point of beginning of the herein described tract of land; thence
leaving said point and running along a line parallel with and 94.00 feet
perpendicular distance South of the Southern line of Maryland Plaza, South 88
degrees 57 minutes 40 seconds East, 59.83 feet to a point; thence leaving said
point and running South 1 degrees 02 minutes 20 seconds West, 98.99 feet to a
point; thence leaving said point and running along a line parallel with the
Northern line of Lindell Boulevard, 100 feet wide, North 89 degrees 00 minutes
00 seconds West, 46.97 feet to a point on the Eastern line of Singleton as
aforementioned; thence along said Eastern line of North 6 degrees 21 minutes 40
seconds West, 99.85 feet to the point of beginning.


 


Parcel 5 (Easement):


 


Easement for the benefit of Parcels No. 1, 3, and 4 herein described
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 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 and 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 6 (Easement):


 


Easements for the benefits of Parcels No. 1, 3 and 4 herein described,
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 21, 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 Western 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 


 


Exhibit A - Page 3


 

















 


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 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 7 (Easement):


 


Easement for the benefit of Parcels No. 1, 3 and 4 herein described,
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 degrees 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 


 


Exhibit A - Page 4


 

















 


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.


 


Parcel 8 (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
rerecorded December 13, 2006 in Book 12132006, Page 0266.


 


Exhibit A - Page 5