Exhibit 10.71


 


	
  AFTER RECORDING

  	
   

  
	
  HOLD FOR

  	
   

  
	
  AMERICAN TITLE COMPANY

  	
   

  
	
   

  	
   

  
	
  GF# 556846-F

  	
   

  
	
  CLOSER: KS/TO (HO)

  	
   

  
	
   

  	
   

  





 





Loan No. V_46690


 


A-S-K 41 ELDRIDGE–W. LITTLE YORK, L.P., as grantor 

(Borrower)


 


to

KIM SOBIESKI, as trustee 

(Trustee)


 


for the benefit of


 


JPMORGAN CHASE BANK, N.A., as beneficiary 

(Lender)


 






 


DEED OF TRUST AND

SECURITY AGREEMENT


 










 


	
   

  	
  Dated:
  November 23, 2004

  	
   

  



 


NOTE
TO CLERK/RECORDER:

THIS INSTRUMENT IS ALSO A FIXTURE FINANCING STATEMENT.


 


[SEAL]


 





















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
  ARTICLE 1 - GRANTS OF SECURITY

  	
  1

  
	
   

  	
  Section 1.1.

  	
  PROPERTY CONVEYED

  	
  1

  
	
   

  	
  Section 1.2.

  	
  ASSIGNMENT OF RENTS

  	
  4

  
	
   

  	
  Section 1.3.

  	
  DEFINITION OF PERSONAL PROPERTY

  	
  4

  
	
   

  	
  Section 1.4.

  	
  PLEDGE OF MONIES HELD

  	
  4

  
	
  ARTICLE 2 - DEBT AND OBLIGATIONS SECURED

  	
  4

  
	
   

  	
  Section 2.1.

  	
  DEBT

  	
  4

  
	
   

  	
  Section 2.2.

  	
  OTHER OBLIGATIONS

  	
  5

  
	
   

  	
  Section 2.3.

  	
  DEBT AND OTHER OBLIGATIONS

  	
  5

  
	
   

  	
  Section 2.4.

  	
  PAYMENTS

  	
  5

  
	
  ARTICLE 3 - BORROWER COVENANTS

  	
  6

  
	
   

  	
  Section 3.1.

  	
  INCORPORATION BY REFERENCE

  	
  6

  
	
   

  	
  Section 3.2.

  	
  INSURANCE

  	
  6

  
	
   

  	
  Section 3.3.

  	
  PAYMENT OF TAXES, ETC.

  	
  12

  
	
   

  	
  Section 3.4.

  	
  CONDEMNATION

  	
  13

  
	
   

  	
  Section 3.5.

  	
  USE AND MAINTENANCE OF PROPERTY

  	
  13

  
	
   

  	
  Section 3.6.

  	
  WASTE

  	
  14

  
	
   

  	
  Section 3.7.

  	
  COMPLIANCE WITH LAWS; ALTERATIONS

  	
  14

  
	
   

  	
  Section 3.8.

  	
  BOOKS AND RECORDS

  	
  14

  
	
   

  	
  Section 3.9.

  	
  PAYMENT FOR LABOR AND MATERIALS

  	
  16

  
	
   

  	
  Section 3.10.

  	
  PERFORMANCE OF OTHER AGREEMENTS

  	
  16

  
	
  ARTICLE 4 - SPECIAL COVENANTS

  	
  16

  
	
   

  	
  Section 4.1.

  	
  PROPERTY USE

  	
  16

  
	
   

  	
  Section 4.2.

  	
  ERISA

  	
  16

  
	
   

  	
  Section 4.3.

  	
  SINGLE PURPOSE ENTITY

  	
  19

  
	
  ARTICLE 5 - REPRESENTATIONS AND WARRANTIES

  	
  20

  
	
   

  	
  Section 5.1.

  	
  BORROWER’S REPRESENTATIONS

  	
  20

  
	
   

  	
  Section 5.2.

  	
  WARRANTY OF TITLE

  	
  20

  
	
   

  	
  Section 5.3.

  	
  STATUS OF PROPERTY

  	
  21

  
	
   

  	
  Section 5.4.

  	
  NO FOREIGN PERSON

  	
  22

  



 


i





















 


	
   

  	
  Section 5.5.

  	
  SEPARATE TAX LOT

  	
  22

  
	
  ARTICLE 6 - OBLIGATIONS AND RELIANCES

  	
  22

  
	
   

  	
  Section 6.1.

  	
  RELATIONSHIP OF BORROWER AND LENDER

  	
  22

  
	
   

  	
  Section 6.2.

  	
  NO RELIANCE ON LENDER

  	
  22

  
	
   

  	
  Section 6.3.

  	
  NO LENDER OBLIGATIONS

  	
  22

  
	
   

  	
  Section 6.4.

  	
  RELIANCE

  	
  22

  
	
  ARTICLE7 - FURTHER ASSURANCES

  	
  23

  
	
   

  	
  Section 7.1.

  	
  RECORDING FEES

  	
  23

  
	
   

  	
  Section 7.2.

  	
  FURTHER ACTS

  	
  23

  
	
   

  	
  Section 7.3.

  	
  CHANGES IN TAX, DEBT CREDIT AND DOCUMENTARY STAMP
  LAWS

  	
  23

  
	
   

  	
  Section 7.4.

  	
  CONFIRMATION STATEMENT

  	
  24

  
	
   

  	
  Section 7.5.

  	
  SPLITTING OF SECURITY INSTRUMENT

  	
  24

  
	
   

  	
  Section 7.6.

  	
  REPLACEMENT DOCUMENTS

  	
  25

  
	
  ARTICLE 8 - DUE ON SALE/ENCUMBRANCE

  	
  25

  
	
   

  	
  Section 8.1.

  	
  LENDER RELIANCE

  	
  25

  
	
   

  	
  Section 8.2.

  	
  NO SALE/ENCUMBRANCE

  	
  25

  
	
   

  	
  Section 8.3.

  	
  EXCLUDED AND PERMITTED TRANSFERS

  	
  26

  
	
   

  	
  Section 8.4.

  	
  NO IMPLIED FUTURE CONSENT

  	
  28

  
	
   

  	
  Section 8.5.

  	
  COSTS OF CONSENT

  	
  27

  
	
   

  	
  Section 8.6.

  	
  CONTINUING SEPARATENESS REQUIREMENTS

  	
  27

  
	
  ARTICLE 9 - DEFAULT

  	
  28

  
	
   

  	
  Section 9.1.

  	
  EVENTS OFDEFAULT

  	
  28

  
	
   

  	
  Section 9.2.

  	
  DEFAULT INTEREST

  	
  30

  
	
  ARTICLE 10 - RIGHTS AND REMEDIES

  	
  31

  
	
   

  	
  Section 10.1.

  	
  REMEDIES

  	
  31

  
	
   

  	
  Section 10.2.

  	
  RIGHT OF ENTRY

  	
  36

  
	
  ARTICLE 11 - INDEMNIFICATION; SUBROGATION

  	
  36

  
	
   

  	
  Section 11.1.

  	
  GENERAL INDEMNIFICATION

  	
  36

  
	
   

  	
  Section 11.2.

  	
  ENVIRONMENTAL INDEMNIFICATION

  	
  38

  
	
   

  	
  Section 11.3.

  	
  DUTY TO DEFEND AND ATTORNEYS AND OTHER FEES AND
  EXPENSES

  	
  40

  
	
   

  	
  Section 11.4.

  	
  SURVIVAL OF INDEMNITIES

  	
  40

  



 


ii





















 


	
  ARTICLE 12 - SECURITY AGREEMENT

  	
  40

  
	
   

  	
  Section 12.1.

  	
  SECURITY AGREEMENT

  	
  40

  
	
  ARTICLE 13 - WAIVERS

  	
  41

  
	
   

  	
  Section 13.1.

  	
  MARSHALLING AND OTHER MATTERS

  	
  41

  
	
   

  	
  Section 13.2.

  	
  WAIVER OF NOTICE

  	
  42

  
	
   

  	
  Section 13.3.

  	
  SOLE DISCRETION OF LENDER

  	
  42

  
	
   

  	
  Section 13.4.

  	
  SURVIVAL

  	
  42

  
	
   

  	
  Section 13.5.

  	
  WAIVER OF TRIAL BY JURY

  	
  42

  
	
   

  	
  Section 13.6.

  	
  WAIVER OF AUTOMATIC OR SUPPLEMENTAL STAY

  	
  43

  
	
  ARTICLE 14 - NOTICES

  	
  43

  
	
   

  	
  Section 14.1.

  	
  NOTICES

  	
  43

  
	
  ARTICLE 15 - APPLICABLE LAW

  	
  44

  
	
   

  	
  Section 15.1.

  	
  GOVERNING LAW; JURISDICTION

  	
  44

  
	
   

  	
  Section 15.2.

  	
  USURY LAWS

  	
  44

  
	
   

  	
  Section 15.3.

  	
  PROVISIONS SUBJECT TO APPLICABLE LAW

  	
  45

  
	
  ARTICLE 16 - SECONDARY MARKET

  	
  45

  
	
   

  	
  Section 16.1.

  	
  TRANSFER OF LOAN

  	
  45

  
	
  ARTICLE 17 - COSTS

  	
  45

  
	
   

  	
  Section 17.1.

  	
  PERFORMANCE AT BORROWER’S EXPENSE

  	
  45

  
	
   

  	
  Section 17.2.

  	
  ATTORNEY’S FEES FOR ENFORCEMENT

  	
  45

  
	
  ARTICLE 18 - DEFINITIONS

  	
  46

  
	
   

  	
  Section 18.1.

  	
  GENERAL DEFINITIONS

  	
  46

  
	
  ARTICLE 19 - MISCELLANEOUS PROVISIONS

  	
  46

  
	
   

  	
  Section 19.1.

  	
  NO ORAL CHANGE

  	
  46

  
	
   

  	
  Section 19.2.

  	
  LIABILITY

  	
  46

  
	
   

  	
  Section 19.3.

  	
  INAPPLICABLE PROVISIONS

  	
  46

  
	
   

  	
  Section 19.4.

  	
  HEADINGS, ETC

  	
  46

  
	
   

  	
  Section 19.5.

  	
  DUPLICATE ORIGINALS; COUNTERPARTS

  	
  46

  
	
   

  	
  Section 19.6.

  	
  NUMBER AND GENDER

  	
  47

  
	
   

  	
  Section 19.7.

  	
  SUBROGATION

  	
  47

  
	
   

  	
  Section 19.8.

  	
  ENTIRE AGREEMENT

  	
  47

  
	
  ARTICLE 20 - TRUSTEE

  	
  47

  
	
  ARTICLE 21 - SPECIAL STATE OF TEXAS PROVISIONS

  	
  48

  



 


iii





















 


Index of Defined Terms


 


	
  ADA

  	
  16

  
	
  ALR

  	
  4

  
	
  Applicable Laws

  	
  16

  
	
  attorneys

  	
  38

  
	
  attorneys’ fees

  	
  47

  
	
  Bankruptcy Code

  	
  2

  
	
  Borrower

  	
  1, 47

  
	
  Business Day

  	
  45

  
	
  Collateral

  	
  42

  
	
  counsel fees

  	
  47

  
	
  Debt

  	
  4

  
	
  Environmental Indemnity

  	
  6

  
	
  Environmental Law

  	
  39, 40

  
	
  Environmental Lien

  	
  40

  
	
  ERISA

  	
  18

  
	
  Escrow Agreement.

  	
  3

  
	
  Event

  	
  46

  
	
  Event of Default

  	
  29

  
	
  Exculpated Portion

  	
  37

  
	
  fees and expenses

  	
  38

  
	
  Guarantor

  	
  20

  
	
  Hazardous Substances

  	
  40

  
	
  Improvements

  	
  1

  
	
  Indemnified Parties

  	
  40

  
	
  Insurance Premiums

  	
  9

  
	
  Insured Casualty

  	
  10

  
	
  Intangibles

  	
  3

  
	
  Investor

  	
  46

  
	
  Land

  	
  1

  
	
  Lease

  	
  2

  
	
  Leases

  	
  2

  
	
  legal fees

  	
  47

  
	
  Lender

  	
  1, 47

  
	
  Loan

  	
  28

  
	
  Loan Documents

  	
  6

  
	
  Losses

  	
  41

  
	
  Note

  	
  1, 47

  
	
  Obligations

  	
  5

  
	
  Original Principals

  	
  27

  
	
  Other Charges

  	
  13

  
	
  Other Loan Documents

  	
  6

  
	
  Other Obligations

  	
  5

  



 


1





















 


	
  Permitted Exceptions

  	
  21

  
	
  person

  	
  47

  
	
  Personal Property

  	
  4

  
	
  Policies

  	
  8

  
	
  Policy

  	
  8

  
	
  Property

  	
  1, 47

  
	
  Qualified Insurer

  	
  8

  
	
  Rating Agency

  	
  46

  
	
  Release

  	
  41

  
	
  Remediation

  	
  41

  
	
  Rents

  	
  2

  
	
  Securities

  	
  46

  
	
  Security Instrument

  	
  1

  
	
  Taxes

  	
  13

  
	
  Trustee

  	
  1

  
	
  Uniform Commercial Code

  	
  2

  



 


2





















 


THIS DEED OF TRUST AND SECURITY AGREEMENT (this “Security Instrument”)
is made as of the 23rd day of November, 2004, by A-S-K 41
ELDRIDGE-W. LITTLE YORK, L.P., a Texas limited partnership, having its principal
place of business c/o NewQuest Properties, 8807 W. Sam Houston Parkway N., Suite 200,
Houston, Texas 77040 (“Borrower”), to KIM SOBIESKI, an individual, having an address at American
Title Company of Houston, 4400 Post Oak Parkway, Suite 1900, Houston, Texas
77027 (“Trustee”), for the benefit of JPMORGAN CHASE BANK,
N.A., a banking association chartered under the laws of the United States of
America, having its principal place of business at 270 Park Avenue, New York,
New York 10017, as beneficiary (“Lender”).


 


RECITALS:


 


Borrower by its Fixed Rate Note of even date herewith given to Lender
is indebted to Lender in the principal sum of $8,100,000.00 in lawful money of
the United States of America (such Fixed Rate Note, together with all
extensions, renewals, modifications, substitutions and amendments thereof,
shall collectively be referred to as the “Note”), with interest from the date thereof
at the rates set forth in the Note, principal and interest to be payable in
accordance with the terms and conditions provided in the Note, and with a final
maturity date of December 1, 2014.


 


Borrower desires to secure the payment of the Debt (as defined in Article 2)
and the performance of all of its obligations under the Note and the Other
Obligations (as defined in Article 2).


 


ARTICLE 1 - GRANTS OF SECURITY


 


Section 1.1.                        PROPERTY CONVEYED.   Borrower
does hereby irrevocably, unconditionally and absolutely, grant, bargain, sell,
pledge, enfeoff, assign, warrant, transfer and convey to Trustee (with power of
sale) in trust for the purposes herein set forth, the following property,
rights, interests and estates now owned, or hereafter acquired by Borrower (collectively,
the “Property”):


 


(a)                      Land.
The real property described in Exhibit A attached hereto and made a
part hereof (the “Land”), together with additional
lands, estates and development rights hereafter acquired by Borrower for use in
connection with the development, ownership or occupancy of such real property,
and all additional lands and estates therein which may, from time to time, by
supplemental deed of trust or otherwise be expressly made subject to the lien
of this Security Instrument;


 


(b)                     Improvements.
The buildings, structures, fixtures, additions, accessions, enlargements,
extensions, modifications, repairs, replacements and improvements now or
hereafter erected or located on the Land (the “Improvements”);


 


(c)                      Easements.
All easements, rights-of-way or use, rights, strips and gores of land, streets,
ways, alleys, passages, sewer rights, water, water courses, water rights and
powers, air rights and development rights, and all estates, rights, titles,
interests, privileges, liberties, servitudes, tenements, hereditaments and
appurtenances of any


 





















 


nature
whatsoever, in any way now or hereafter belonging, relating or pertaining to
the Land and the Improvements and the reversion and reversions, remainder and
remainders, and all land lying in the bed of any street, road or avenue, opened
or proposed, in front of or adjoining the Land, to the center line thereof and
all the estates, rights, titles, interests, dower and rights of dower, curtesy
and rights of curtesy, property, possession, claim and demand whatsoever, both
at law and in equity, of Borrower of, in and to the Land and the Improvements
and every part and parcel thereof, with the appurtenances thereto;


 


(d)                     Fixtures
and Personal Property.   All machinery, equipment, goods,
inventory, consumer goods, fixtures (including, but not limited to, all
heating, air conditioning, plumbing, lighting, communications and elevator
fixtures) and other property of every kind and nature whatsoever owned by
Borrower, or in which Borrower has or shall have an interest, now or hereafter
located upon the Land and the Improvements, or appurtenant thereto, and usable
in connection with the present or future use, maintenance, enjoyment, operation
and occupancy of the Land and the Improvements and all building equipment,
materials and supplies of any nature whatsoever owned by Borrower, or in which
Borrower has or shall have an interest, now or hereafter located upon the Land
and the Improvements, or appurtenant thereto, or usable in connection with the
present or future operation and occupancy of the Land and the Improvements, and
the right, title and interest of Borrower in and to any of the Personal
Property (as hereinafter defined) which may be subject to any security
interests, as defined in the Uniform Commercial Code, as adopted and
enacted by the state or states where any of the Property is located (the “Uniform Commercial
Code”), superior in lien to the lien of this Security
Instrument and all proceeds and products of the above;


 


(e)                      Leases
and Rents.   All leases and other agreements affecting the use,
enjoyment or occupancy of the Land and the Improvements heretofore or hereafter
entered into, whether before or after the filing by or against Borrower of any
petition for relief under 11 U.S.C. § 101 et  seq., as the
same may be amended from time to time (the “Bankruptcy Code”)
(individually, a “Lease”; collectively, the “Leases”)
and all right, title and interest of Borrower, its successors and assigns
therein and thereunder, including, without limitation, cash or securities
deposited thereunder to secure the performance by the lessees of their
obligations thereunder and all rents (including all tenant security and other
deposits), additional rents, revenues, issues and profits (including all oil
and gas or other mineral royalties and bonuses) from the Land and the
Improvements whether paid or accruing before or after the filing by or against
Borrower of any petition for relief under the Bankruptcy Code (collectively the
“Rents”) and all proceeds from the sale or
other disposition of the Leases and the right to receive and apply the Rents to
the payment of the Debt;


 


(f)                        Condemnation
Awards.   All awards or payments, including interest thereon,
which may heretofore and hereafter be made with respect to the Property,
whether from the exercise of the right of eminent domain (including but not
limited to any transfer made in lieu of or in anticipation of the exercise of
the right), or for a change of grade, or for any other injury to or decrease in
the value of the Property;


 


2





















 


(g)                     Insurance
Proceeds.   All proceeds of and any unearned premiums on any
insurance policies covering the Property, including, without limitation, the
right to receive and apply the proceeds of any insurance, judgments, or
settlements made in lieu thereof, for damage to the Property;


 


(h)                     Tax
Certiorari.   All refunds, rebates or credits in connection with
a reduction in real estate taxes and assessments charged against the Property
as a result of tax certiorari or any applications or proceedings for reduction;


 


(i)                         Conversion.
  All proceeds of the conversion, voluntary or involuntary, of any of
the foregoing including, without limitation, proceeds of insurance and
condemnation awards, into cash or liquidation claims;


 


(j)                         Rights.
  The right, in the name and on behalf of Borrower, to appear in and
defend any action or proceeding brought with respect to the Property and to
commence any action or proceeding to protect the interest of Trustee and/or
Lender in the Property;


 


(k)                      Agreements.
  All agreements, contracts (including purchase, sale, option, right
of first refusal and other contracts pertaining to the Property), certificates,
instruments, franchises, permits, licenses, approvals, consents, plans,
specifications and other documents, now or hereafter entered into, and all
rights therein and thereto, respecting or pertaining to the use, occupation,
construction, management or operation of the Property (including any
Improvements or respecting any business or activity conducted on the Land and
any part thereof) and all right, title and interest of Borrower therein
and thereunder, including, without limitation, the right, upon the happening of
any default hereunder, to receive and collect any sums payable to Borrower
thereunder;


 


(l)                         Trademarks.
  All tradenames (except that of NewQuest Properties), trademarks,
servicemarks, logos, copyrights, goodwill, books and records and all other
general intangibles relating to or used in connection with the operation of the
Property;


 


(m)                   Accounts.
  All accounts, accounts receivable, escrows (including, without limitation,
all escrows, deposits, reserves and impounds established pursuant to that
certain Escrow Agreement for Reserves and Impounds of even date herewith
between Borrower and Lender; hereinafter, the “Escrow Agreement”),
documents, instruments, chattel paper, deposit accounts, investment property,
claims, reserves (including deposits) representations, warranties and general
intangibles, as one or more of the foregoing terms may be defined in the
Uniform Commercial Code, and all contract rights, franchises, books,
records, plans, specifications, permits, licenses (to the extent assignable),
approvals, actions, choses, commercial tort claims, suits, proofs of claim in
bankruptcy and causes of action which now or hereafter relate to, are derived
from or are used in connection with the Property, or the use, operation,
maintenance, occupancy or enjoyment thereof or the conduct of any business or
activities thereon (hereinafter collectively called the “Intangibles”); and


 


(n)                     Other
Rights.   Any and all other rights of Borrower in and to the
Property and any accessions, renewals, replacements and substitutions of all or
any portion of the


 


3





















 


Property
and all proceeds derived from the sale, transfer, assignment or financing of
the Property or any portion thereof.


 


Section 1.2.                        ASSIGNMENT OF RENTS.   Borrower
hereby absolutely and unconditionally assigns to Lender Borrower’s right, title
and interest in and to all current and future Leases and Rents; it being
intended by Borrower that this assignment constitutes a present, absolute and
unconditional assignment and not an assignment for additional security only.
Nevertheless, subject to the terms of this Section 1.2 and the
terms and conditions of that certain Assignment of Leases and Rents of even
date herewith from Borrower to Lender (the “ALR”), Lender grants
to Borrower a revocable license to collect and receive the Rents. Borrower
shall hold the Rents, or a portion thereof sufficient to discharge all current
sums due on the Debt, for use in the payment of such sums.


 


Section 1.3.                        DEFINITION OF PERSONAL
PROPERTY.   For purposes of this Security Instrument, the
Property identified in Subsections 1.1(d) through 1.1(n),
inclusive, shall be collectively referred to herein as the “Personal
Property.”


 


Section 1.4.                        PLEDGE OF MONIES HELD.   Borrower
hereby pledges to Lender any and all monies now or hereafter held by Lender,
including, without limitation, all insurance proceeds described in Section 3.2
and condemnation awards or payments described in Section 3.4. as
additional security for the Obligations until expended or applied as provided
in this Security Instrument.


 


CONDITIONS TO GRANT


 


TO HAVE AND TO HOLD the above granted and described Property unto and
to the use and benefit of Trustee, and the successors and assigns of Trustee,
forever, by, through and under Borrower, but not otherwise;


 


PROVIDED, HOWEVER, these presents are upon the express condition that,
if Borrower shall well and truly pay to Lender the Debt at the time and in the
manner provided in the Note and this Security Instrument, shall well and truly
perform the Other Obligations as set forth in this Security Instrument and
shall well and truly abide by and comply with each and every covenant and
condition set forth herein and in the Note, these presents and the estate
hereby granted shall cease, terminate and be void; provided  however,
that Borrower’s obligation to indemnify and hold harmless Lender pursuant to
the provisions hereof with respect to matters relating to any period of time
during which this Security Instrument was in effect shall survive any such
payment or release.


 


ARTICLE 2 - DEBT AND OBLIGATIONS SECURED


 


Section 2.1.                        DEBT.   This
Security Instrument and the grants, assignments and transfers made in Article 1
are given for the purpose of securing the following, in such order of priority
as Lender may determine in its sole discretion (the “Debt”):


 


(a)                      the
payment of the indebtedness evidenced by the Note in lawful money of the United
States of America;


 


4





















 


(b)                     the
payment of interest, default interest, late charges and other sums, as provided
in the Note, this Security Instrument or the Other Loan Documents (as
hereinafter defined);


 


(c)                      the
payment of all other moneys agreed or provided to be paid by Borrower in the
Note, this Security Instrument or the Other Loan Documents;


 


(d)                     the
payment of all sums advanced pursuant to this Security Instrument to protect
and preserve the Property and the lien and the security interest created
hereby; and


 


(e)                      the
payment of all sums advanced, costs and expenses incurred, and processing fees
charged, by Lender in connection with the Debt or any part thereof, any
renewal, extension, or change of or substitution for the Debt or any part thereof,
or the acquisition or perfection of the security therefor, whether made or
incurred at the request of Borrower or Lender.


 


Section 2.2. OTHER OBLIGATIONS. This Security Instrument
and the grants, assignments and transfers made in Article 1 are
also given for the purpose of securing the following (the “Other
Obligations”):


 


(a)                      the performance of all other obligations of
Borrower contained herein;


 


(b)                     the performance of each obligation of Borrower
contained in any other agreement given by Borrower to Lender which is for the
purpose of further securing the obligations secured hereby, and any amendments,
modifications and changes thereto; and


 


(c)                      the performance of each obligation of Borrower
contained in any renewal, extension, amendment, modification, consolidation,
change of, or substitution or replacement for, all or any part of the
Note, this Security Instrument or the Other Loan Documents.


 


Section 2.3.                        DEBT AND OTHER OBLIGATIONS.
  Borrower’s obligations for the payment of the Debt and the
performance of the Other Obligations shall be referred to collectively herein
as the “Obligations.”


 


Section 2.4.                        PAYMENTS.   Unless
payments are made in the required amount in immediately available funds at the
place where the Note is payable, remittances in payment of all or any part of
the Debt shall not, regardless of any receipt or credit issued therefor,
constitute payment until the required amount is actually received by Lender in
funds immediately available at the place where the Note is payable (or any
other place as Lender, in Lender’s sole discretion, may have established
by delivery of written notice thereof to Borrower) 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 Lender of any payment in an amount less than the amount then due
shall be deemed an acceptance on account only, and the failure to pay the
entire amount then due shall (subject to any right to notice and opportunity to
cure provided herein) be and continue to be an Event of Default (as hereinafter
defined).


 


5





















 


ARTICLE 3 - BORROWER COVENANTS


 


Borrower covenants and agrees that:


 


Section 3.1.                        INCORPORATION BY REFERENCE.
  All the covenants, conditions and agreements contained in (a) the
Note, and (b) all and any of the documents other than the Note or this
Security Instrument now or hereafter executed by Borrower and/or others and by
or in favor of Lender in connection with the creation of the Obligations, the
payment of any other sums owed by Borrower to Lender or the performance of any
Obligations (collectively the “Other Loan Documents”), are hereby
made a part of this Security Instrument to the same extent and with the
same force as if fully set forth herein. The term “Loan Documents” as used
herein shall individually and collectively refer to the Note, this Security
Instrument and the Other Loan Documents; provided, however, that
notwithstanding any provision of this Security Instrument to the contrary, the
Obligations of the Borrower under that certain Environmental Indemnity
Agreement of even date herewith executed by Borrower in favor of Lender (the “Environmental
Indemnity”) shall not be deemed or construed to be secured by
this Security Instrument or otherwise restricted or affected by the foreclosure
of the lien hereof or any other exercise by Lender of its remedies hereunder or
under any other Loan Document, such Environmental Indemnity being intended by
the signatories thereto to be its (or their) unsecured obligation.


 


Section 3.2.                        INSURANCE.


 


(a)                      Borrower
shall obtain and maintain (or cause to be obtained and maintained, and for the
purposes of this Section 3.2, satisfaction of any of the
requirements herein by a tenant under any Lease shall be deemed to be
satisfaction by Borrower hereunder), and shall pay (or cause to be paid) all
premiums in accordance with Subsection 3.2(b) below for,
insurance for Borrower and the Property providing at least the following
coverages:


 


(i)                         all
risk insurance (including, without limitation, riot and civil commotion,
vandalism, malicious mischief, water, fire, burglary and theft and without any
exclusion for terrorism) on the Improvements and the Personal Property and in
each case (A) in an amount equal to 100% of the “Full Replacement Cost,”
which for purposes of this Security Instrument shall mean actual replacement
value (exclusive of costs of excavations, foundations, underground utilities
and footings) with a waiver of depreciation; (B) containing an agreed
amount endorsement with respect to the Improvements and Personal Property
waiving all co-insurance provisions; (C) providing for no deductible in
excess of $100,000.00; and (D) containing Demolition Costs, Increased Cost
of Construction and “Ordinance or Law Coverage” or “Enforcement” endorsements
in amounts satisfactory to Lender if any of the Improvements or the use of the
Property shall at any time constitute legal non-conforming structures or uses
or the ability to rebuild the Improvements is restricted or prohibited. The
Full Replacement Cost may be redetermined from time to time by an
appraiser or contractor designated and paid by Lender or by an engineer or
appraiser in the regular employ of the insurer. No omission on the part of
Lender to request any


 


6





















 


such
appraisals shall relieve Borrower of any of its obligations under this
Subsection;


 


(ii)                      commercial
general liability insurance against claims for personal injury, bodily injury,
death or property damage occurring upon, in or about the Property, such
insurance (A) to be on the so-called “occurrence” form with a
combined single limit of not less than $1,000,000.00 and not less than
$3,000,000.00 if the Property has one or more elevators, as well as liquor
liability insurance in a minimum amount of $2,000,000.00 if any part of
the Property is covered by a liquor license and an aggregate coverage limit
acceptable to Lender; (B) to continue at not less than the aforesaid limit
until required to be changed by Lender in writing by reason of changed economic
conditions making such protection inadequate; (C) to cover at least the
following hazards: (1) premises and operations; (2) products and
completed operations on an “if any” basis; (3) independent contractors; (4) blanket
contractual liability for all written and oral contracts; (5) contractual
liability covering the indemnities contained in Section 11.1 hereof
to the extent the same is available; and (D) to be without deductible;


 


(iii)                   business income insurance (A) with
loss payable to Lender; (B) covering losses of income and Rents derived
from the Property; (C) containing an extended period of indemnity
endorsement which provides that after the physical loss to the Improvements and
Personal Property has been repaired, the continued loss of income will be
insured until such income either returns to the same level it was at prior to
the loss, or the expiration of twelve (12) months from the date of the loss,
whichever first occurs, and notwithstanding that the policy may expire
prior to the end of such period; and (D) in an amount equal to 100% of the
projected gross income from the Property (on an actual loss sustained basis)
for a period continuing until the restoration of the Property is completed. The
amount of such business income insurance shall be determined by Lender prior to
the date hereof and at least once each year thereafter based on Borrower’s
reasonable estimate of the gross income from the Property for the succeeding
twelve (12) month period. All insurance proceeds payable to Lender pursuant to
this Subsection 3.2(a) shall be held by Lender and shall be applied
first to the obligations secured hereunder from time to time due and payable
hereunder and under the Note; provided, however, that nothing
herein contained shall be deemed to relieve Borrower of its obligations to pay
the obligations secured hereunder on the respective dates of payment provided
for in the Note except to the extent such amounts are actually paid out of the
proceeds of such business income insurance;


 


(iv)                  at
all times during which structural construction, repairs or alterations are
being made with respect to the Improvements: (A) owners will be named as
additional insureds on tenant’s or contractor’s liability policies; and (B) the
insurance provided for in Subsection 3.2(a)(i) written in a
so-called builder’s risk completed value form (1) on a non-reporting
basis, (2) against all risks insured against pursuant to Subsection 3.2(a)(i),
(3) including permission to


 


7





















 


occupy
the Property, and (4) with an agreed amount endorsement waiving
coinsurance provisions;


 


(v)                     workers’
compensation, subject to the statutory limits of the state in which the
Property is located, and employer’s liability insurance with a limit of at
least $2,000,000.00 per accident and per disease per employee, and
$2,000,000.00 for disease aggregate in respect of any work or operations on or
about the Property, or in connection with the Property or its operation (if
applicable);


 


(vi)                  comprehensive
boiler and machinery insurance (without exclusion for explosion), if
applicable, in amounts as shall be reasonably required by Lender and covering
all boilers or other pressure vessels, machinery and equipment located at or
about the Property (including, without limitation, electrical equipment,
sprinkler systems, heating and air conditioning equipment, refrigeration
equipment and piping);


 


(vii)               if any portion of the Improvements is
currently or at any time in the future located in a federally designated “special
flood hazard area,” flood hazard insurance in an amount equal to the lesser of (A) the
Full Replacement Cost or (B) the maximum amount of such insurance
available under the National Flood Insurance Act of 1968, the Flood Disaster
Protection Act of 1973 or the National Flood Insurance Reform Act of 1994,
as each may be amended; and


 


(viii)            such other insurance and in such amounts as
Lender from time to time may reasonably request against such other
insurable hazards which at the time are commonly insured against for property
similar to the Property located in or around the region in which the Property
is located, including, without limitation, earthquake insurance (in the event
the Property is located in an area with a high degree of seismic activity),
sinkhole insurance, mine subsidence insurance and environmental insurance.


 


(b)                     All
insurance provided for in Subsection 3.2(a) hereof shall be
obtained under valid and enforceable policies (the “Policies” or in the
singular, the “Policy”), in such forms and, from
time to time after the date hereof, in such amounts as may from time to
time be reasonably satisfactory to Lender, issued by financially sound and
responsible insurance companies authorized to do business in the state in which
the Property is located as admitted or unadmitted carriers which, in either
case, have been approved by Lender (with such approval not to be unreasonably
withheld) and which have a claims paying ability rating of A or better issued
by Standard & Poor’s Ratings Group or with a claims paying ability
rating otherwise acceptable to Lender (each such insurer shall be referred to
below as a “Qualified Insurer”). Such Policies shall not be subject to invalidation due to the use
or occupancy of the Property for purposes more hazardous than the use of the
Property at the time such Policies were issued. No Policy required under Sections
3.2(a)(i) and (iii) hereof shall contain an exclusion from coverage
under such Policy for loss or damage incurred as a result of an act of
terrorism or similar acts of sabotage. Not less than thirty (30) days prior to
the expiration dates of the


 


8





















 


Policies
theretofore furnished to Lender pursuant to Subsection 3.2(a),
certified copies of the Policies marked “premium paid” or accompanied by
evidence satisfactory to Lender of payment of the premiums due thereunder (the “Insurance
Premiums”), shall be delivered by Borrower to Lender;
provided, however, that in the case of renewal Policies, Borrower may furnish
Lender with binders therefor to be followed by the original Policies when
issued.


 


(c)                      Borrower
shall not obtain (i) separate insurance concurrent in form or
contributing in the event of loss with that required in Subsection 3.2(a)
to be furnished by, or which may be reasonably required to be furnished
by, Borrower, or (ii) any umbrella or blanket liability or casualty Policy
unless, in each case, Lender’s interest is included therein as provided in this
Security Instrument and such Policy is issued by a Qualified Insurer. If
Borrower obtains separate insurance or an umbrella or a blanket Policy,
Borrower shall notify Lender of the same and shall cause certified copies of
each Policy to be delivered as required in Subsection 3.2(a). Any
blanket insurance Policy shall specifically allocate to the Property the amount
of coverage from time to time required hereunder and shall otherwise provide
the same protection as would a separate Policy insuring only the Property in
compliance with the provisions of Subsection 3.2(a).


 


(d)                     All
Policies of insurance provided for or contemplated by Subsection 3.2(a)
shall name Lender, its successors and assigns, including any servicers,
trustees or other designees of Lender, and Borrower as the insured or
additional insured, as their respective interests may appear, and in the
case of property damage, boiler and machinery, and flood insurance, shall
contain a so-called New York standard non-contributing Lender clause in favor
of Lender providing that the loss thereunder shall be payable to Lender.


 


(e)                      All
Policies of insurance provided for in Subsection 3.2(a) shall
contain clauses or endorsements to the effect that:


 


(i)                         no
act or negligence of Borrower, or anyone acting for Borrower, or of any tenant
under any Lease or other occupant, or failure to comply with the provisions of
any Policy which might otherwise result in a forfeiture of the insurance or any
part thereof, shall in any way affect the validity or enforceability of
the insurance insofar as Lender is concerned;


 


(ii)                      the
Policy shall not be canceled without at least thirty (30) days’ prior written
notice to Lender;


 


(iii)                   each Policy shall provide that the
issuers thereof shall give written notice to Lender if the Policy has not been
renewed thirty (30) days prior to its expiration; and


 


(iv)                  Lender
shall not be liable for any Insurance Premiums thereon or subject to any
assessments thereunder.


 


(f)                        Borrower
shall furnish to Lender within ten (10) calendar days after Lender’s
request therefor (but not more than once per calendar year), a statement
certified


 


9





















 


by Borrower or a
duly authorized officer of Borrower of the amounts of insurance maintained in
compliance herewith, of the risks covered by such insurance and of the
insurance company or companies which carry such insurance.


 


(g)                    If
at any time Lender is not in receipt of written evidence that all insurance
required hereunder is in full force and effect, Lender shall have the right but
not the obligation, without notice to Borrower, to take such action as Lender
deems reasonably necessary to protect its interest in the Property, including,
without limitation, the obtaining of such insurance coverage in the form and
amounts required hereunder, and all expenses incurred by Lender in connection
with such action or in obtaining such insurance and keeping it in effect shall
be paid by Borrower to Lender upon demand and until paid shall be secured by
this Security Instrument and shall bear interest at the Default Rate (as
defined in the Note). Lender shall endeavor to provide Borrower with 24 hours
notice prior to taking the action contemplated in this subsection provided,
that, the failure of Lender to provide such notice shall not, in any way,
prejudice Lender’s right to take any such action.


 


(h)                    If
the Property shall be damaged or destroyed, in whole or in part, by fire or
other casualty, Borrower shall give prompt notice thereof to Lender.


 


(i)                         In
case of loss covered by Policies, Lender may either (1) settle and
adjust any claim without the consent of Borrower, or (2) allow Borrower to
agree with the insurance company or companies on the amount to be paid upon the
loss; provided that, if no Event of Default shall have occurred and be
continuing (A) Borrower may adjust losses aggregating not in excess
of $100,000.00 if such adjustment is carried out in a competent and timely
manner and (B) Lender shall not settle or adjust any such claim without
the consent of Borrower, which consent shall not be unreasonably withheld or
delayed. In any case Lender shall and is hereby authorized to collect and
receive any such insurance proceeds; and the expenses incurred by Lender in the
adjustment and collection of insurance proceeds shall become part of the
Debt and be secured hereby and shall be reimbursed by Borrower to Lender upon
demand (unless deducted by and reimbursed to Lender from such proceeds).


 


(ii)                      In
the event of any insured damage to or destruction of the Property or any part thereof
(herein called an “Insured Casualty”), if (A) less
than 30% of the total floor area of the Improvements has been damaged,
destroyed or rendered unusable as a result of such Insured Casualty and in the
reasonable judgment of Lender, the Property can be restored within six (6) months
after insurance proceeds are made available and at least six (6) months
prior to the Maturity Date (as defined in the Note) to an economic unit not
less valuable (including an assessment by Lender of the impact of the
termination of any Leases due to such Insured Casualty) and not less useful
than the same was prior to the Insured Casualty, and after such restoration
will adequately secure the outstanding balance of the Debt; (B) Leases
demising in the aggregate a percentage amount equal to or greater than
seventy-five percent (75%) of the total rentable space in the Property which
has been demised under executed and


 


10





















 


delivered
Leases in effect as of the date of the occurrence of such fire or other
casualty shall remain in full force and effect during and after the completion
of the restoration, notwithstanding the occurrence of any such Insured Casualty
and Borrower furnishes to Lender evidence satisfactory to Lender that all
tenants under Material Leases (as defined in the ALR) shall continue to operate
their respective space at the Property after the completion of the Restoration;
and (C) no Event of Default (hereinafter defined) shall have occurred and
be continuing (except a non-monetary Event of Default resulting solely from
such casualty), then the proceeds of insurance shall be applied to reimburse
Borrower for the cost of restoring, repairing, replacing or rebuilding the
Property or part thereof subject to Insured Casualty, as provided below.
Additionally, in the event of any insured damage to or destruction to any
portion of the Property which Borrower is required to restore pursuant to any
Lease, provided no Event of Default shall have occurred and be then continuing,
then the proceeds of insurance shall be applied to reimburse Borrower for the
cost of restoring, repairing, replacing or rebuilding the Property or part thereof
subject to Insured Casualty, as provided below. In any such case, Borrower
hereby covenants and agrees forthwith to commence and diligently to prosecute
such restoring, repairing, replacing or rebuilding; provided, however,
in any event Borrower shall pay all costs (and if required by Lender, Borrower
shall deposit the total thereof with Lender in advance) of such restoring,
repairing, replacing or rebuilding in excess of the net proceeds of insurance
made available pursuant to the terms hereof.


 


(iii)                   Except as provided above, the
proceeds of insurance collected upon any Insured Casualty shall, at the option
of Lender in its sole reasonable discretion, be applied to the payment of the
Debt or applied to reimburse Borrower for the cost of restoring, repairing,
replacing or rebuilding the Property or part thereof subject to the
Insured Casualty, in the manner set forth below. Any such application to the
Debt shall not be considered a voluntary prepayment requiring payment of the
prepayment consideration provided in the Note, and shall not reduce or postpone
any payments otherwise required pursuant to the Note, other than the final
payment on the Note.


 


(iv)                  Regardless
of whether proceeds of insurance, if any, are made available to Borrower for
the restoring, repairing, replacing or rebuilding of the Property, Borrower
hereby covenants to restore, repair, replace or rebuild the same to be of at
least equal value and of substantially the same character as prior to such
damage or destruction, all to be effected in accordance with applicable law and
plans and specifications approved in advance by Lender, which approval shall
not be unreasonably withheld, conditioned or delayed. Notwithstanding the
foregoing, Lender shall not compel Borrower to rebuild portions of the
Improvements damaged in connection with an Insured Casualty for which no Lease
is then in effect (other than to remove debris and to restore the affected area
to a good and safe condition in keeping with the condition of the balance of
the Property), in which case any related insurance proceeds shall, unless
Lender is otherwise entitled to apply such proceeds to the payment of the Debt
in


 


11





















 


accordance with the provisions hereof, be held by
Lender in an interest bearing account and disbursed for the costs of rebuilding
such Improvements in the manner provided herein upon the execution of a Lease
for such space.


 


(v)                     If
Borrower is entitled to reimbursement out of insurance proceeds held by Lender,
such proceeds shall be disbursed from time to time upon Lender being furnished
with (1) evidence reasonably satisfactory to it (which evidence may include
inspections of the work performed) that such portion of the restoration,
repair, replacement and rebuilding covered by the disbursement has been
completed in accordance with plans and specifications approved by Lender, (2) evidence
reasonably satisfactory to it of the estimated cost of completion of the
restoration, repair, replacement and rebuilding, (3) funds, or, at Lender’s
option, assurances reasonably satisfactory to Lender that such funds are
available, sufficient in addition to the proceeds of insurance to complete the
proposed restoration, repair, replacement and rebuilding, and (4) such
architect’s certificates, waivers of lien, contractor’s sworn statements, title
insurance endorsements, bonds, plats of survey and such other evidences of
cost, payment and performance as Lender may reasonably require and
approve; and Lender may, in any event, require that all plans and specifications
for such restoration, repair, replacement and rebuilding be submitted to and
approved by Lender (which approval shall not be unreasonably withheld,
conditioned or delayed) prior to commencement of work. With respect to
disbursements to be made by Lender: (A) no payment made prior to the final
completion of the restoration, repair, replacement and rebuilding shall exceed
ninety percent (90%) of the value of the work performed from time to time; (B) funds
other than proceeds of insurance shall be disbursed prior to disbursement of
such proceeds; and (C) at all times, the undisbursed balance of such
proceeds remaining in the hands of Lender, together with funds deposited for
that purpose or irrevocably committed to the satisfaction of Lender by or on
behalf of Borrower for that purpose, shall be at least sufficient in the
reasonable judgment of Lender to pay for the cost of completion of the
restoration, repair, replacement or rebuilding, free and clear of all liens or
claims for lien and the costs described in Subsection 3.2(h)(vi) below.
Any surplus which may remain out of insurance proceeds held by Lender
after payment of such costs of restoration, repair, replacement or rebuilding
shall be paid to any party entitled thereto. In no event shall Lender assume
any duty or obligation for the adequacy, form or content of any such plans
and specifications, nor for the performance, quality or workmanship of any
restoration, repair, replacement and rebuilding. Notwithstanding the foregoing
provisions of this Subsection 3.2(h)(v), if the insurance proceeds
shall be less than $100,000.00 and the costs of completing the restoration
shall be less than $100,000.00, the insurance proceeds will be disbursed by
Lender to Borrower upon receipt, provided that the conditions set forth in Subsection 3.2(h)(ii)
hereof are met and Borrower delivers to Lender a written undertaking to
expeditiously commence and to satisfactorily complete with due diligence the
restoration in accordance with the terms of this Security Instrument.


 


12





















 


(vi)                  Notwithstanding
anything to the contrary contained herein, the proceeds of insurance reimbursed
to Borrower in accordance with the terms and provisions of this Security
Instrument shall be reduced by the reasonable costs (if any) incurred by Lender
in the adjustment and collection thereof and in the reasonable costs incurred
by Lender of paying out such proceeds (including, without limitation,
reasonable attorneys’ fees and costs paid to third parties for inspecting the
restoration, repair, replacement and rebuilding and reviewing the plans and
specifications therefor).


 


Section 3.3.                        PAYMENT OF TAXES, ETC.


 


(a)                      Borrower
shall pay (or cause to be paid) all taxes, assessments, water rates, sewer
rents, governmental impositions, and other charges, including without
limitation, vault charges and license fees for the use of vaults, chutes and
similar areas adjoining the Land, now or hereafter levied or assessed or
imposed against the Property or any part thereof (the “Taxes”),
all ground rents, maintenance charges and similar charges, now or hereafter
levied or assessed or imposed against the Property or any part thereof
(the “Other
Charges”), and
all charges for utility services provided to the Property as same become due
and payable. Borrower will deliver to Lender, promptly upon Lender’s request,
evidence satisfactory to Lender that the Taxes, Other Charges and utility
service charges which Borrower is obligated to pay have been so paid or are not
then delinquent. Borrower shall not allow and shall promptly cause to be paid
and discharged all Taxes and Other Charges which may be or become a lien
or charge against the Property. Except to the extent sums sufficient to pay all
Taxes and Other Charges have been deposited with Lender in accordance with the
terms of this Security Instrument, Borrower shall furnish to Lender paid
receipts for the payment of the Taxes prior to the date the same shall become
delinquent.


 


(b)                     After
prior written notice to Lender, Borrower, at its own expense, may contest
by appropriate legal proceeding, promptly initiated and conducted in good faith
and with due diligence, the amount or validity or application in whole or in part of
any of the Taxes, Other Charges, utility service charges, and any lien or
charge whatsoever (each, a “Contested Obligation”), provided that (i) no
Event of Default has occurred and is continuing under the Note, this Security
Instrument or any of the Other Loan Documents, (ii) Borrower is permitted
to do so under the provisions of any other mortgage, deed of trust or deed to
secure debt affecting the Property, (iii) such proceeding shall suspend
the collection of such Contested Obligation from Borrower and from the Property
or Borrower shall have paid all of the Contested Obligation under protest, (iv) such
proceeding shall be permitted under and be conducted in accordance with the
provisions of any other instrument to which Borrower is subject and shall not
constitute a default thereunder, (v) neither the Property nor any part thereof
or interest therein will be in danger of being sold, forfeited, terminated,
canceled or lost, (vi) without duplication of amounts deposited pursuant
to subclause (vii) hereof, Borrower shall have set aside and deposited
with Lender adequate reserves for the payment of the Contested Obligation,
together with all interest and penalties thereon, unless Borrower has paid all
of the Contested Obligation under protest, and (vii) Borrower shall have
furnished the


 


13





















 


security as may be required in the proceeding to
insure the payment of any Contested Obligation, together with all interest and
penalties thereon.


 


Section 3.4.                        CONDEMNATION. Borrower shall promptly give Lender notice of the actual or threatened
commencement of any condemnation or eminent domain proceeding and shall deliver
to Lender copies of any and all papers served in connection with such
proceedings. Lender is hereby irrevocably appointed as Borrower’s
attorney-in-fact, coupled with an interest, with exclusive power to collect,
receive and retain any award or payment for said condemnation or eminent domain
and to make any compromise or settlement in connection with such proceeding,
subject to the provisions of this Security Instrument. Notwithstanding any
taking by any public or quasi-public authority through eminent domain or
otherwise (including but not limited to any transfer made in lieu of or in
anticipation of the exercise of such taking), Borrower shall continue to pay the
Debt at the time and in the manner provided for its payment in the Note and in
this Security Instrument and the Debt shall not be reduced until any award or
payment therefor shall have been actually received and applied by Lender, after
the deduction of expenses of collection, to the reduction or discharge of the
Debt. Lender shall not be limited to the interest paid on the award by the
condemning authority but shall be entitled to receive out of the award interest
at the rate or rates provided herein or in the Note. Borrower shall cause the
award or payment made in any condemnation or eminent domain proceeding, which
is payable to Borrower, to be paid directly to Lender. Provided less than ten
percent (10%) of the Land constituting the Property is taken, and such Land is
located along the perimeter or periphery of the Property or along a public
street, and no portion of the Improvements is the subject of such proceeding,
Lender shall allow Borrower to use the proceeds of such condemnation toward the
repair and restoration of the Property subject to and in accordance with terms
and conditions similar to those set forth in Section 3.2(h) hereof,
including, without limitation, the satisfaction of the conditions set forth in Section 3.2(h)(ii).
Lender may apply any award or payment to the reduction or discharge of the
Debt whether or not then due and payable (such application to be free from any
prepayment consideration provided in the Note, except that if an Event of
Default, or an event which with notice and/or the passage of time, or both,
would constitute an Event of Default, has occurred, then such application shall
be subject to the full prepayment consideration computed in accordance with the
Note). If the Property is sold, through foreclosure or otherwise, prior to the
receipt by Lender of the award or payment, Lender shall have the right, whether
or not a deficiency judgment on the Note shall have been sought, recovered or
denied, to receive the award or payment, or a portion thereof sufficient to pay
the Debt. Regardless of whether any award or payment is made available to
Borrower for the restoring, repairing, replacing or rebuilding of the Property,
Borrower hereby covenants to restore, repair, replace or rebuild the same to be
of at least equal value and of substantially the same character as prior to
such condemnation or eminent domain proceeding, all to be effected in
accordance with applicable law and plans and specifications approved in advance
by Lender, which approval shall not be unreasonably withheld, conditioned or
delayed. Notwithstanding the foregoing, Lender shall not compel Borrower to
rebuild portions of the Improvements affected by a taking by any public or
quasi-public authority through eminent domain or otherwise for which no Lease
is then in effect (other than to remove debris and to restore the affected area
to a good and safe condition in keeping with the condition of the balance of
the Property), in which case any condemnation proceeds shall, unless Lender is
otherwise entitled to apply such proceeds to the payment of the Debt in
accordance with the provisions hereof, be held by Lender in an interest bearing
account


 


14





















 


and disbursed for
the costs of rebuilding such Improvements in the manner provided herein upon
the execution of a Lease for such space.


 


Section 3.5.                        USE AND MAINTENANCE OF
PROPERTY.   Borrower shall cause the Property to be maintained
and operated in a good and safe condition and repair and in keeping with the
condition and repair of properties of a similar use, value, age, nature and
construction. Borrower shall not use, maintain or operate the Property in any
manner 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. The Improvements and the Personal Property shall
not be removed, demolished (except in connection with a casualty) or materially
altered (except for normal replacement of the Personal Property with items of
the same utility and of equal or greater value, and except as permitted by any
existing Leases) without the prior written consent of Lender, which approval
shall nor be unreasonably withheld, conditioned or delayed. Except as otherwise
expressly permitted herein, Borrower shall promptly repair, replace or rebuild
any part of the Property which may be destroyed by any casualty, or
becomes damaged, worn or dilapidated or which may be affected by any
proceeding of the character referred to in Section 3.4 hereof and
shall complete and pay for any structure at any time in the process of
construction or repair on the Land. Borrower shall not initiate, without Lender’s
prior written consent, which consent shall not be unreasonably withheld,
delayed or conditioned, join in, acquiesce in, or consent to any change in any
private restrictive covenant (other than use restrictions under the Leases),
zoning law or other public or private restriction, limiting or defining the
uses which may be made of the Property or any part thereof. If under
applicable zoning provisions the use of all or any portion of the Property is
or shall become a nonconforming use, Borrower will not cause or permit the
nonconforming use to be discontinued or abandoned without the express written
consent of Lender. Borrower shall not take any steps whatsoever to convert the
Property, or any portion thereof, to a condominium or cooperative form of
management. In connection with any proposed new easement or restrictive
covenant or modification of any existing easement or restrictive covenant,
Lender shall use good faith efforts to respond within twenty (20) days after
Lender’s receipt of both Borrower’s written request for approval or consent and
all relevant information regarding such request. If Lender fails to respond to
such request within such twenty (20) day period, and such request contained a
legend clearly marked in not less than fourteen (14) point bold face type,
underlined, in all capital letters “REQUEST DEEMED APPROVED IF NO RESPONSE
WITHIN 20 DAYS”, Lender shall be deemed to have approved or consented to such
matter.


 


Section 3.6.                        WASTE.   Borrower
shall not commit or suffer any waste of the Property or, without first
obtaining such additional insurance as may be necessary to cover a
proposed change in use of the Property, make any change in the use of the
Property which will in any way materially increase the risk of fire or other
hazard arising out of the operation of the Property, or take any action that
might invalidate or give cause for cancellation of any Policy, or do or permit
to be done thereon anything that may in any way impair the value of the
Property or the security of this Security Instrument. Borrower will not,
without the prior written consent of Lender, permit any drilling or exploration
for or extraction, removal, or production of any minerals from the surface or
the subsurface of the Land, regardless of the depth thereof or the method of
mining or extraction thereof.


 


15





















 


Section 3.7.                        COMPLIANCE WITH LAWS;
ALTERATIONS.


 


(a)                      Borrower
shall promptly comply (or cause to be complied) with all existing and future
federal, state and local laws, orders, ordinances, governmental rules and
regulations or court orders affecting or which may be interpreted to
affect the Property, or the use thereof, including, but not limited to, the
Americans with Disabilities Act (the “ADA”) (collectively “Applicable
Laws”).


 


(b)                     Notwithstanding
any provisions set forth herein or in any document regarding Lender’s approval
of alterations of the Property, Borrower shall not alter the Property in any
manner which would increase Borrower’s responsibilities for compliance with
Applicable Laws without the prior written approval of Lender. Lender’s approval
of the plans, specifications, or working drawings for alterations of the
Property shall create no responsibility or liability on behalf of Lender for
their completeness, design, sufficiency or their compliance with Applicable
Laws. The foregoing shall apply to tenant improvements constructed by Borrower
or by any of its tenants. Lender may condition any such approval upon
receipt of a certificate of compliance with Applicable Laws from an independent
architect, engineer, or other person acceptable to Lender.


 


(c)                      Borrower
shall give prompt notice to Lender of the receipt by Borrower of any notice
related to a violation of any Applicable Laws and of the commencement of any
proceedings or investigations which relate to compliance with Applicable Laws.


 


(d)                     Borrower
shall take appropriate measures to prevent and will not engage in or knowingly
permit any illegal activities at the Property.


 


Section 3.8.                        BOOKS AND RECORDS.


 


(a)                      Borrower
shall keep accurate books and records of account in accordance with sound
accounting principles in which full, true and correct entries shall be promptly
made with respect to Borrower, the Property and the operation thereof, and will
permit all such books and records (including without limitation all contracts,
statements, invoices, bills and claims for labor, materials and services
supplied for the construction, repair or operation to Borrower of the
Improvements) to be inspected or audited and copies made by Lender and its
representatives during normal business hours and at any other reasonable times.
Borrower represents that its chief executive office is as set forth in the
introductory paragraph of this Security Instrument and that all books and
records pertaining to the Property are maintained at the Property or such other
location as may be expressly disclosed to Lender in writing. Borrower will
furnish, or cause to be furnished, to Lender on or before forty-five (45)
calendar days after the end of each calendar quarter the following items, each
certified by Borrower as being true and correct in all material respects, in
such format and in such detail as Lender or its servicer may reasonably
request:


 


(i)                         a
written statement (rent roll) dated as of the last day of each such calendar
quarter identifying each of the Leases by the term, space occupied, rental
required to be paid (including percentage rents and tenant sales), security
deposit paid, any rental concessions, all rent escalations, any rents paid more
than one (1)


 


16





















 


month
in advance, any special provisions or inducements granted to tenants, any
taxes, maintenance and other common charges paid by tenants, all vacancies and
identifying any defaults or payment delinquencies thereunder, and


 


(ii)                      quarterly
and year-to-date operating statements prepared for each calendar quarter during
each such reporting period detailing the total revenues received, total
expenses incurred, total cost of all capital improvements, total debt service
and total cash flow.


 


(b)                     Within
one hundred twenty (120) calendar days following the end of each calendar year,
Borrower shall furnish a statement of the financial affairs and condition of
the Borrower and the Property including a statement of profit and loss for the
Property in such format and in such detail as Lender or its servicer may reasonably
request, and setting forth the financial condition and the income and expenses
for the Property for the immediately preceding calendar year prepared and
certified by Borrower as being true and correct in all material respects.
Borrower shall deliver to Lender copies of all income tax returns, requests for
extension and other similar items within fifteen (15) days of delivery of same
to the Internal Revenue Service.


 


(c)                      Borrower
will permit representatives appointed by Lender, including independent
accountants, agents, attorneys, appraisers and any other persons, to visit and
inspect, subject to the rights of tenants and other occupants of the Property,
during its normal business hours and at any other reasonable times any of the
Property and to make photographs thereof, and to write down and record any
information such representatives obtain,
and shall permit Lender or its representatives to investigate and verify the accuracy
of the information furnished to Lender under or in connection with this
Security Instrument or any of the
Other Loan Documents and to discuss all such matters with its officers, employees and representatives.
Borrower will furnish to Lender at Borrower’s expense all evidence which Lender
may from time to time reasonably request as to the accuracy and
validity of or compliance with all representations and warranties made by
Borrower in the Loan Documents and satisfaction of all conditions contained
therein. Any inspection or audit of the Property or the books and records of
Borrower, or the procuring of documents and financial and other information, by
or on behalf of Lender, shall be at Borrower’s expense (not to exceed $1,000.00
per year unless an Event of Default then exists) and shall be for Lender’s
protection only, and shall not constitute any assumption of responsibility or
liability by Lender to Borrower or anyone else with regard to the condition,
construction, maintenance or operation of the Property, nor Lender’s approval
of any certification given to Lender nor relieve Borrower of any of Borrower’s
obligations.


 


(d)                     Prior
to the transfer of the Loan by Lender pursuant to Section 16.1 hereof,
Borrower shall deliver to Lender the reports required by Section 3.8(a)
on a monthly basis. Such reports shall be delivered within twenty (20) calendar
days after the end of each calendar month.


 


Section 3.9.                        PAYMENT FOR LABOR AND
MATERIALS.   Borrower will promptly pay (or cause to be paid)
when due all bills and costs for labor, materials, and specifically


 


17





















 


fabricated
materials incurred in connection with the Property and, except for liens being
contested in accordance with Section 3.3(b) above, never permit to
exist beyond the due date thereof in respect of the Property or any part thereof
any lien or security interest, even though inferior to the liens and the
security interests hereof, and in any event never permit to be created or exist
in respect of the Property or any part thereof any other or additional
lien or security interest other than the liens or security interests hereof,
except for the Permitted Exceptions (as hereinafter defined).


 


Section 3.10.                  PERFORMANCE OF OTHER AGREEMENTS.
  Borrower shall observe and perform each and every term to be
observed or performed by Borrower pursuant to the terms of any agreement or
recorded instrument affecting or pertaining to the Property, or given by
Borrower to Lender for the purpose of further securing an obligation secured
hereby and any amendments, modifications or changes thereto.


 


ARTICLE 4 - SPECIAL COVENANTS


 


Borrower covenants and agrees that:


 


Section 4.1.                        PROPERTY USE.   The
Property shall be used only for a retail shopping center, retail office and
business office uses and related ancillary commercial uses that are consistent
with similar first-class retail shopping centers, and for no other use
without the prior written consent of Lender, which consent may be withheld
in Lender’s sole and absolute discretion.


 


Section 4.2.                        ERISA.


 


(a)                      It
shall not engage in any transaction which would cause any obligation, or action
taken or to be taken, hereunder (or the exercise by Lender of any of its rights
under the Note, this Security Instrument and the Other Loan Documents) to be a
non-exempt (under a statutory or administrative class exemption)
prohibited transaction under the Employee Retirement Income Security Act of
1974, as amended (“ERISA”).


 


(b)                     It
shall deliver to Lender such certifications or other evidence from time to time
throughout the term of the Security Instrument, as requested by Lender in its
sole discretion, that (i) Borrower is not an “employee benefit plan” as
defined in Section 3(3) of ERISA, which is subject to Title I of
ERISA, or a “governmental plan” within the meaning of Section 3(32)
of ERISA; (ii) Borrower is not subject to state statutes regulating
investments and fiduciary obligations with respect to governmental plans; and (iii) one
or more of the following circumstances is true:


 


(i)                        Equity
interests in Borrower are publicly offered securities, within the meaning of 29
C.F.R. §2510.3-101(b)(2);


 


(ii)                     Less
than twenty-five percent (25%) of each outstanding class of equity
interests in Borrower are held by “benefit plan investors” within the meaning
of 29 C.F.R. §2510.3-101(f)(2); or


 


18





















 


(iii)                  Borrower
qualifies as an “operating company” or a “real estate operating company” within
the meaning of 29 C.F.R. §2510.3-101(c) or (e) or an investment
company registered under The Investment Company Act of 1940.


 


Section 4.3.                        SINGLE PURPOSE ENTITY.   Borrower
covenants and agrees that it shall not:


 


(a)                      engage
in any business or activity other than the acquisition, ownership, operation
and maintenance of the Property, and activities incidental thereto; or


 


(b)                     acquire
or own any material asset other than (i) the Property, and (ii) such
incidental Personal Property as may be necessary for the operation of the
Property.


 


(c)                      merge
into or consolidate with any person or entity or dissolve, terminate or
liquidate in whole or in part, transfer or otherwise dispose of all or
substantially all of its assets or change its legal structure, without in each
case Lender’s consent;


 


(d)                     fail
to preserve its existence as an entity duly organized, validly existing and in
good standing (if applicable) under the laws of the jurisdiction of its
organization or formation, or without the prior written consent of Lender,
amend, modify, terminate or fail to comply with the provisions of Borrower’s
Partnership Agreement, Articles or Certificate of Incorporation, Articles of
Organization, Operating Agreement or similar organizational documents, as the
case may be;


 


(e)                      own
any subsidiary or make any investment in or acquire the obligations or securities
of any other person or entity without the consent of Lender;


 


(f)                        commingle
its assets with the assets of any of its partner(s), members,  shareholders, affiliates, or of any other
person or entity or transfer any assets to any such person or entity other than
distributions on account of equity interests in the Borrower permitted
hereunder and properly accounted for;


 


(g)                     incur
any debt, secured or unsecured, direct or contingent (including guaranteeing
any obligation), other than the Debt, except trade payables incurred in the
ordinary course of its business of owning and operating the Property, provided
that such debt is (i) not evidenced by a note, (ii) is paid within
sixty (60) days of the date incurred, (iii) does not exceed, in the
aggregate, four percent (4%) of the outstanding principal balance of the Note
and (iv) is payable to trade creditors and in amounts as are normal and
reasonable under the circumstances;


 


(h)                     allow
any person or entity to pay its debts and liabilities (except a Guarantor or
Indemnitor) or fail to pay its debts and liabilities solely from its own
assets;


 


(i)                         fail
to maintain its records, books of account and bank accounts separate and apart from
those of the shareholders, partners, members, principals and affiliates of Borrower,
the affiliates of a shareholder, partner or member of Borrower, and any other
person or entity or fail to prepare and maintain its own financial statements
in accordance with sound accounting practices and susceptible to audit, or if
such financial statements


 


19





















 


are
consolidated fail to cause such financial statements to contain footnotes
disclosing that the Property is actually owned by the Borrower;


 


(j)                         enter
into any contract or agreement with any shareholder, partner, member, principal
or affiliate of Borrower, any guarantor of all or a portion of the Debt (a “Guarantor”)
or any shareholder, partner, member, principal or affiliate thereof, except
upon terms and conditions that are intrinsically fair and substantially similar
to those that would be available on an arms-length basis with third parties
other than any shareholder, partner, member, principal or affiliate of Borrower
or Guarantor, or any shareholder, partner, member, principal or affiliate
thereof;


 


(k)                      seek
dissolution or winding up in whole, or in part;


 


(1)                      fail
to correct any known misunderstandings regarding the separate identity of
Borrower;


 


(m)                   guarantee
or become obligated for the debts of any other entity or person or hold itself
out to be responsible or pledge its assets or credit worthiness for the debts
of another person or entity or allow any person or entity to hold itself out to
be responsible or pledge its assets or credit worthiness for the debts of the
Borrower (except for a Guarantor or Indemnitor);


 


(n)                     make
any loans or advances to any third party, including any shareholder, partner,
member, principal or affiliate of Borrower, or any shareholder, partner,
member, principal or affiliate thereof;


 


(o)                     fail
to file its own tax returns or to use separate contracts, purchase orders,
stationery, invoices and checks;


 


(p)                     fail
either to hold itself out to the public as a legal entity separate and distinct
from any other entity or person or to conduct its business solely in its own
name in order not (i) to mislead others as to the entity with which such
other party is transacting business, or (ii) to suggest that Borrower is
responsible for the debts of any third party (including any shareholder,
partner, member, principal or affiliate of Borrower, or any shareholder,
partner, member, principal or affiliate thereof);


 


(q)                     fail
to allocate fairly and reasonably among Borrower and any third party
(including, without limitation, any Guarantor) any overhead for common
employees, shared office space or other overhead and administrative expenses;


 


(r)                        allow
any person or entity to pay the salaries of its own employees or fail to
maintain a sufficient number of employees for its contemplated business
operations;


 


(s)                      fail
to maintain adequate capital for the normal obligations reasonably foreseeable
in a business of its size and character and in light of its contemplated
business operations;


 


20





















 


(t)                        file
a voluntary petition or otherwise initiate proceedings to have the Borrower or
any general partner or managing member adjudicated bankrupt or insolvent, or
consent to the institution of bankruptcy or insolvency proceedings against the
Borrower or any general partner or managing member, or file a petition seeking
or consenting to reorganization or relief of the Borrower or any general
partner or managing member as debtor under any applicable federal or state law
relating to bankruptcy, insolvency, or other relief for debtors with respect to
the Borrower or any general partner or managing member; or seek or consent to
the appointment of any trustee, receiver, conservator, assignee, sequestrator,
custodian, liquidator (or other similar official) of the Borrower or any
general partner or managing member or of all or any substantial part of
the properties and assets of the Borrower or any general partner or managing
member, or make any general assignment for the benefit of creditors of the
Borrower or any general partner or managing member, or admit in writing the
inability of the Borrower or any general partner or managing member to pay its
debts generally as they become due or declare or effect a moratorium on the
Borrower or any general partner or managing member debt or take any action in
furtherance of any such action;


 


(u)                     share
any common logo with or hold itself out as or be considered as a department or
division of (i) any shareholder, partner, principal, member or affiliate
of Borrower, (ii) any affiliate of a shareholder, partner, principal,
member or affiliate of Borrower, or (iii) any other person or entity or
allow any person or entity to identify the Borrower as a department or division
of that person or entity; or


 


(v)                     conceal
assets from any creditor, or enter into any transaction with the intent to
hinder, delay or defraud creditors of the Borrower or the creditors of any
other person or entity.


 


ARTICLE 5 - REPRESENTATIONS AND WARRANTIES


 


Section 5.1.                        BORROWER’S REPRESENTATIONS.
  Borrower represents and warrants to Lender that each of the
representations and warranties set forth in that certain Closing Certificate of
even date herewith executed by Borrower in favor of Lender are true and correct
as of the date hereof and are hereby incorporated and restated in this Security
Instrument by this reference.


 


Section 5.2.                        WARRANTY OF TITLE.   Borrower
represents and warrants that it has good and indefeasible title to the Property
and has the right to grant, bargain, sell, pledge, assign, warrant, transfer
and convey the same and that Borrower possesses an unencumbered fee simple
absolute estate in the Land and the Improvements and that it owns the Property
free and clear of all liens, encumbrances and charges whatsoever except for
those exceptions shown in the title insurance policy insuring the lien of this
Security Instrument (the “Permitted Exceptions”). Borrower represents and warrants that
none of the Permitted Exceptions will materially and adversely affect the
ability of the Borrower to pay in full the Loan, the use of the Property for
the use currently being made thereof, the operation of the Property or the
value of the Property. Borrower shall, at its sole cost and expense, forever
warrant, defend and preserve the title and the validity and priority of the
lien of this Security Instrument and shall, at its sole cost and expense,


 


21





















 


forever warrant
and defend the same to Trustee and Lender against the claims of all persons
whomsoever, by, through or under Borrower, but not otherwise.


 


Section 5.3.                        STATUS OF PROPERTY.


 


(a)                      No
portion of the Improvements is located in an area identified by the Secretary
of Housing and Urban Development or any successor thereto as an area having
special flood hazards pursuant to the National Flood Insurance Act of 1968 or
the Flood Disaster Protection Act of 1973, as amended, or any successor law,
or, if located within any such area, Borrower has obtained and will maintain
the insurance prescribed in Section 3.2 hereof.


 


(b)                     To
Borrower’s actual knowledge, Borrower has obtained all necessary certificates,
permits, licenses and other approvals, governmental and otherwise, necessary
for the use, occupancy and operation of the Property and the conduct of its
business (including, without limitation, certificates of completion and
certificates of occupancy) and all required zoning, building code, land use,
environmental and other similar permits or approvals, all of which are in full
force and effect as of the date hereof and not subject to revocation, suspension,
forfeiture or modification.


 


(c)                      The
Property and the present and contemplated use and occupancy thereof are to the
actual knowledge of Borrower in full compliance with all Applicable Laws,
including, without limitation, zoning ordinances, building codes, land use and
environmental laws, laws relating to the disabled (including, but not limited
to, the ADA) and other similar laws.


 


(d)                     The
Property is served by all utilities required for the current or contemplated
use thereof. All utility service is provided by public utilities and the
Property has accepted or is equipped to accept such utility service.


 


(e)                      All
public roads and streets necessary for service of and access to the Property
for the current or contemplated use thereof have been completed, are serviceable
and are physically and legally open for use by the public.


 


(f)                        The
Property is served by public water and sewer systems.


 


(g)                     The
Property is free from damage caused by fire or other casualty. There is no
pending or, to the actual knowledge of Borrower, threatened condemnation
proceedings affecting the Property or any portion thereof.


 


(h)                     All
costs and expenses of any and all labor, materials, supplies and equipment used
in the construction of the Improvements have been (or will be) paid in full and
no notice of any mechanics’ or materialmen’s liens or of any claims of right to
any such liens have been received.


 


(i)                         Borrower
has (or will have) paid in full for, and is the owner of, all furnishings,
fixtures and equipment (other than tenants’ property) used in connection with


 


22





















 


the
operation of the Property, free and clear of any and all security interests,
liens or encumbrances, except the lien and security interest created hereby.


 


(j)                         All
liquid and solid waste disposal, septic and sewer systems located on the
Property are to the actual knowledge of Borrower in a good and safe condition
and repair and in compliance with all Applicable Laws.


 


(k)                      All
Improvements lie within the boundary of the Land.


 


Section 5.4.                        NO FOREIGN PERSON.   Borrower
is not a “foreign person” within the meaning of Section 1445(f)(3) of
the Internal Revenue Code of 1986, as amended, and the related Treasury
Department regulations, including temporary regulations.


 


Section 5.5.                        SEPARATE TAX LOT.   The
Property is assessed for real estate tax purposes as one or more wholly
independent tax lot or lots, separate from any adjoining land or improvements
not constituting a part of such lot or lots, and no other land or
improvements is assessed and taxed together with the Property or any portion
thereof.


 


ARTICLE 6 - OBLIGATIONS AND RELIANCES


 


Section 6.1.                        RELATIONSHIP OF BORROWER AND
LENDER.   The relationship between Borrower and Lender is solely
that of debtor and creditor, and Lender has no fiduciary or other special
relationship with Borrower, and no term or condition of any of the Note, this
Security Instrument and the other Loan Documents shall be construed so as to
deem the relationship between Borrower and Lender to be other than that of
debtor and creditor.


 


Section 6.2.                        NO RELIANCE ON LENDER.   The
partners, members, principals and (if Borrower is a trust) beneficial owners of
Borrower are experienced in the ownership and operation of properties similar
to the Property, and Borrower and Lender are relying solely upon such expertise
and business plan in connection with the ownership and operation of the
Property. Borrower is not relying on Lender’s expertise, business acumen or
advice in connection with the Property.


 


Section 6.3.                        NO LENDER OBLIGATIONS.


 


(a)                      Notwithstanding
the provisions of Subsections 1.1(e) and 1.1(1) or Section 1.2,
Lender is not undertaking (i) any obligations under the Leases; or (ii) any
obligations with respect to such agreements, contracts, certificates,
instruments, franchises, permits, trademarks, licenses and other documents.


 


(b)                     By
accepting or approving anything required to be observed, performed or fulfilled
or to be given to Lender pursuant to this Security Instrument, the Note or the
Other Loan Documents, including without limitation, any officer’s certificate,
balance sheet, statement of profit and loss or other financial statement,
survey, appraisal, or insurance policy, Lender shall not be deemed to have
warranted, consented to, or affirmed the sufficiency, legality or effectiveness
of same, and such acceptance or approval thereof shall not constitute any
warranty or affirmation with respect thereto by Lender.


 


23






 













 


Section 6.4.                        RELIANCE.   Borrower
recognizes and acknowledges that in accepting the Note, this Security
Instrument and the Other Loan Documents, Lender is expressly and primarily
relying on the truth and accuracy of the warranties and representations set forth
in Article 5 and that certain Closing Certificate of even date
herewith executed by Borrower, without any obligation to investigate the
Property and notwithstanding any investigation of the Property by Lender; that
such reliance existed on the part of Lender prior to the date hereof; that
such warranties and representations are a material inducement to Lender in
accepting the Note, this Security Instrument and the Other Loan Documents; and
that Lender would not be willing to make the Loan (as hereinafter defined) and
accept this Security Instrument in the absence of the warranties and
representations as set forth in Article 5 and such Closing
Certificate.


 


ARTICLE 7 - FURTHER ASSURANCES


 


Section 7.1.                        RECORDING FEES.   Borrower
will pay all taxes, filing, registration or recording fees, and all expenses
incident to the preparation, execution, acknowledgment and/or recording of the
Note, this Security Instrument, the Other Loan Documents, any note or deed of
trust supplemental hereto, any security instrument with respect to the Property
and any instrument of further assurance, and any modification or amendment of
the foregoing documents, and all federal, state, county and municipal taxes,
duties, imposts, assessments and charges arising out of or in connection with
the execution and delivery of this Security Instrument, any deed of trust
supplemental hereto, any security instrument with respect to the Property or
any instrument of further assurance, and any modification or amendment of the
foregoing documents, except where prohibited by law so to do.


 


Section 7.2.                        FURTHER ACTS.   Borrower
will, at the cost of Borrower, and without expense to Lender, do, execute,
acknowledge and deliver all and every such further acts, deeds, conveyances,
deeds of trust, assignments, notices of assignments, transfers and assurances
as Lender shall, from time to time, reasonably require, for the better
assuring, conveying, assigning, transferring, and confirming unto Lender the
property and rights hereby granted, bargained, sold, conveyed, confirmed,
pledged, assigned, warranted and transferred or intended now or hereafter so to
be, or which Borrower may be or may hereafter become bound to convey
or assign to Lender, or for carrying out the intention or facilitating the
performance of the terms of this Security Instrument or for filing, registering
or recording this Security Instrument, or for complying with all Applicable
Laws. Borrower, on demand, will execute and deliver and hereby authorizes
Lender to execute in the name of Borrower or without the signature of Borrower
to the extent Lender may lawfully do so, one or more financing statements,
chattel mortgages or other instruments, to evidence more effectively the
security interest of Lender in the Property. Borrower grants to Lender an
irrevocable power of attorney coupled with an interest for the purpose of
exercising and perfecting any and all rights and remedies available to Lender
at law and in equity, including without limitation such rights and remedies
available to Lender pursuant to this Section 7.2.


 


Section 7.3.                        CHANGES IN TAX, DEBT CREDIT
AND DOCUMENTARY STAMP LAWS.


 


(a)                      If
any law is enacted or adopted or amended after the date of this Security
Instrument which imposes a tax, either directly or indirectly, on the Debt or
Lender’s


 


24

















 


interest
in the Property, requires revenue or other stamps to be affixed to the Note,
this Security Instrument, or the Other Loan Documents, or imposes any other tax
or charge on the same, Borrower will pay the same, with interest and penalties
thereon, if any. If Lender is advised by counsel chosen by it that the payment
of tax by Borrower would be unlawful or taxable to Lender or unenforceable or
provide the basis for a defense of usury, then Lender shall have the option, by
written notice of not less than one hundred eighty (180) calendar days, to
declare the Debt immediately due and payable, in which event no prepayment
penalty will be due.


 


(b)                     Borrower
will not claim or demand or be entitled to any credit or credits on account of
the Debt for any part of the Taxes or Other Charges assessed against the
Property, or any part thereof, and no deduction shall otherwise be made or
claimed from the assessed value of the Property, or any part thereof, for
real estate tax purposes by reason of this Security Instrument or the Debt. If
such claim, credit or deduction shall be required by law, Lender shall have the
option, by written notice of not less than one hundred eighty (180) calendar
days, to declare the Debt immediately due and payable, in which event no
prepayment penalty will be due.


 


Section 7.4.                        CONFIRMATION STATEMENT.


 


(a)                      After
written request by Lender, Borrower, within ten (10) days following such
request, shall furnish Lender or any proposed assignee with a statement, duly
acknowledged and certified, confirming to Lender (or its designee) (i) the
amount of the original principal amount of the Note, (ii) the unpaid
principal amount of the Note, (iii) the rate of interest of the Note, (iv) the
terms of payment and maturity date of the Note, (v) the date installments
of interest and/or principal were last paid, and (vi) that, except as
provided in such statement, there are no defaults or events which with the
passage of time or the giving of notice or both, would constitute an event of
default under the Note or this Security Instrument; provided, however, Lender
shall not be entitled hereunder to receive more than one (1) such
statement in each calendar year.


 


(b)                     Subject
to the provisions of the Leases, Borrower shall deliver to Lender, promptly
upon request (but not more frequently than once annually so long no Event of
Default is continuing hereunder), duly executed estoppel certificates from any
one or more lessees as required by Lender attesting to such facts regarding the
Lease as Lender may require, including but not limited to attestations
that each Lease covered thereby is in full force and effect with no defaults
thereunder on the part of any party, that none of the Rents have been paid
more than one month in advance, and that the lessee claims no defense or offset
against the full and timely performance of its obligations under the Lease.


 


(c)                      Upon
any transfer or proposed transfer contemplated by Section 16.1
hereof, at Lender’s request, Borrower, any Guarantors and any Indemnitors shall
provide an estoppel certificate to the Investor (defined in Section 16.1)
or any prospective Investor in such form, substance and detail as Lender, such
Investor or prospective Investor may reasonably require.


 


25

















 


Section 7.5.                        SPLITTING OF SECURITY
INSTRUMENT.   This Security Instrument and the Note shall, at any
time until the same shall be fully paid and satisfied, at the sole election of
Lender and at no expense to Borrower unless an Event of Default then exists, be
split or divided into two or more notes and two or more security instruments,
each of which shall cover all or a portion of the Property to be more
particularly described therein. To that end, Borrower, upon written request of
Lender, shall execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered by the then owner of the Property, to Lender and/or
its designee or designees substitute notes and security instruments in such
principal amounts, aggregating not more than the then unpaid principal amount
of Debt, and containing terms, provisions and clauses similar to those
contained herein and in the Note, and such other documents and instruments as may be
required by Lender. If Note and/or this Security Instrument is split into two
or more notes or security instruments, all approvals or consents required from
Lender hereunder shall nonetheless be obtained from a single lead lender (or
its servicer or special servicer, as applicable).


 


Section 7.6.                        REPLACEMENT DOCUMENTS.   Upon
receipt of an affidavit of an officer of Lender as to the loss, theft,
destruction or mutilation of the Note or any Other Loan Document which is not
of public record, and, in the case of any such mutilation, upon surrender and
cancellation of such Note or Other Loan Document, Borrower, at its expense,
will issue, in lieu thereof, a replacement Note or Other Loan Document, dated
the date of such lost, stolen, destroyed or mutilated Note or Other Loan
Document in the same principal amount thereof and otherwise of like tenor.


 


ARTICLE 8 - DUE ON SALE/ENCUMBRANCE


 


Section 8.1.                        LENDER RELIANCE.   Borrower
acknowledges that Lender has examined and relied on the creditworthiness of
Borrower and experience of Borrower and its partners, members, principals and
(if Borrower is a trust) beneficial owners in owning and operating properties
such as the Property in agreeing to make the Loan, and will continue to rely on
Borrower’s ownership of the Property as a means of maintaining the value of the
Property as security for repayment of the Debt and the performance of the Other
Obligations. Borrower acknowledges that Lender has a valid interest in
maintaining the value of the Property so as to ensure that, should Borrower
default in the repayment of the Debt or the performance of the Other
Obligations, Lender can recover the Debt by a sale of the Property.


 


Section 8.2.                        NO SALE/ENCUMBRANCE.


 


(a)                      Borrower
agrees that Borrower shall not, without the prior written consent of Lender,
Transfer the Property or any part thereof or permit the Property or any part thereof
to be Transferred. Lender shall not be required to demonstrate any actual
impairment of its security or any increased risk of default hereunder in order
to declare the Debt immediately due and payable upon Borrower’s Transfer of the
Property without Lender’s consent.


 


(b)                     As
used in Section 8.2(a), “Transfer” shall mean any voluntary or involuntary
sale, conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment or
transfer of all or any part of the Property or Borrower or any direct or
indirect interest


 


26

















 


therein
including, but not limited to: (i) an installment sales agreement wherein
Borrower agrees to sell the Property or any part thereof for a price to be
paid in installments; (ii) an agreement by Borrower leasing all or a
substantial part of the Property for other than actual occupancy by a
space tenant thereunder; (iii) a sale, assignment or other transfer of, or
the grant of a security interest in, Borrower’s right, title and interest in
and to any Leases or any Rents; (iv) if Borrower, Guarantor, or any
managing member or general partner of Borrower or Guarantor is a corporation,
any Transfer of such corporation’s stock (or the stock of any corporation
directly or indirectly controlling such Borrower, Guarantor, managing member or
general partner by operation of law or otherwise) or the creation or issuance
of new stock in one or a series of transactions by which an aggregate of
forty-nine percent (49%) or more of such corporation’s stock shall directly or
indirectly be vested in or pledged to a party or parties who are not now
stockholders (provided,  however, in no event shall this subpart [iv]
apply to any Guarantor whose stock or shares are traded on a nationally
recognized stock exchange); (v) if Borrower, Guarantor, or any managing
member or general partner of Borrower or Guarantor is a limited liability
company or partnership, the Transfer by which an aggregate of forty-nine
percent (49%) or more of the ownership interest in such limited liability
company or forty-nine percent (49%) or more of the partnership interests in
such partnership shall directly or indirectly be vested in or pledged to
parties not having an ownership interest as of the date of this Security
Instrument; (vi) if Borrower, any Guarantor or any managing member or
general partner of Borrower or any Guarantor is a partnership, limited
liability company or joint venture, the change, removal or resignation of a
general partner, managing member or joint venturer or the Transfer directly or
indirectly of all or any portion of the partnership or ownership interest of
any general partner, managing member or joint venturer; and (vii) except
as expressly permitted by Section 8.3, any Transfer by an Original
Principal, directly or indirectly, of its ownership interest in the Borrower.


 


Section 8.3.                        EXCLUDED AND PERMITTED
TRANSFERS.


 


(a)                      A
Transfer within the meaning of this Article 8 shall not include (i) transfers
of ownership interests in the Borrower, any general partner or managing member
or any Guarantor made by devise or descent or by operation of law upon the
death of a joint tenant, partner, member or shareholder, subject, however, to
all the following requirements: (A) written notice of any transfer under
this Section 8.3, whether by will, trust or other written
instrument, operation of law or otherwise, is provided to Lender or its
servicer, together with copies of such documents relating to the transfer as
Lender or its servicer may reasonably request, (B) control over the
management and operation of the Property is retained by one or more of Steven
D. Alvis and Jay K. Sears (the “Original Principals”, whether one or
more) at all times prior to the death or legal incapacity of all the Original
Principals and is thereafter assumed by persons who are acceptable in all
respects to Lender in its sole and absolute discretion, (C) no such
transfer by devise or descent by any of the Original Principals will release
the respective estate from any liability as a Guarantor, and (D) no such
transfer, death or other event has any material adverse effect on the status of
Borrower as a continuing legal entity liable for the payment of the Debt and
the performance of all other


 


27

















 


obligations
secured hereby, (ii) transfers otherwise by operation of law in the event
of a bankruptcy, or (iii) a Lease of a portion of the Property.


 


(b)                     The
prohibitions in Subsection 8.2(a) shall not apply to an inter vivos
or testamentary transfer of all or any portion of ownership interests in the
Borrower, any general partner or managing member or any Guarantor to one or
more family members of Original Principals or a trust in which all of the
beneficial interest is held by one or more family members of Original
Principals or a partnership or limited liability company in which a majority of
the capital and profits interests are held by one or more family members of
Original Principals, provided, that any inter vivos transfer of all or
any portion of the ownership interests in the Borrower, such general partner or
managing member or such Guarantor is made in connection with Original
Principals’ bona fide, good faith estate planning and that the person(s) with
voting control of Borrower or the management of the Property are (i) the
same person(s) who had such voting control and management rights immediately
prior to the transfer in question, or (ii) reasonably acceptable to
Lender. Lender acknowledges that Original Principals and/or an Original
Principal’s spouse are acceptable to exercise voting control of Borrower and
the management of the Property. As used herein, “family members” shall include
the spouse, children and grandchildren and any lineal descendants.


 


(c)                      Notwithstanding
the provisions of Section 8.2 above, Lender will give its consent
to three separate sales or transfers of the Property or ownership interests in
the Borrower, a general partner or managing member of the Borrower, or any
Guarantor, if (but only if) no Event of Default under the Loan Documents has
occurred and is continuing, and if each of the following conditions precedent
have been fully satisfied (as determined in Lender’s sole and absolute
discretion): (i) the grantee’s or transferee’s integrity, reputation,
financial condition, character and management ability are satisfactory to
Lender in its sole discretion, and all information relating thereto requested
by Lender is delivered to Lender at least 30 days prior to the proposed
transfer, (ii) the grantee’s or transferee’s (and its sole general partner’s
or managing member’s) single purpose character are satisfactory to Lender in
its sole discretion, and all information relating thereto requested by Lender
is delivered to Lender at least 30 days prior to the proposed transfer, (iii) Lender
has obtained such estoppels from any guarantors of the Note or replacement
guarantors and such other legal opinions regarding substantive consolidation
issues, enforceability of the assumption documents, no adverse impact on the
Securities or any REMIC holding the Note and similar matters as Lender may require,
(iv) all of Lender’s costs and expenses associated with the sale or
transfer (including reasonable attorneys’ fees) are paid by Borrower or the
grantee or transferee (provided that Lender will advise Borrower if such legal
fees are estimated to exceed $5,000.00 prior to incurring such expense), (v) the
payment of a transfer fee not to exceed 1% of the then unpaid principal balance
of the loan evidenced by the Note and secured hereby (the “Loan”),
(vi) the execution and delivery to Lender of a written assumption
agreement and/or substitute guaranty (in its sole reasonable discretion) and
such modifications to the Loan Documents executed by such parties and
containing such terms and conditions as Lender may require in its sole
reasonable discretion prior to such sale or transfer (provided that in the
event the Loan is included in a REMIC and is a performing Loan, no modification
to the terms and conditions shall be made or permitted that would cause (A)


 


28

















 


any
adverse tax consequences to the REMIC or any holders of any Mortgage-Backed
Pass-Through Securities, (B) the Security Instrument to fail to be a
Qualifying Security Instrument under applicable federal law relating to REMIC’s,
or (C) result in a taxation of the income from the Loan to the REMIC or
cause a loss of REMIC status), (vii) if applicable, the delivery to Lender
of an endorsement (at Borrower’s sole cost and expense) to Lender’s policy of
title insurance then insuring the lien created by this Security Instrument in form and
substance acceptable to Lender in its sole judgment and (viii) written
confirmation from the Rating Agencies that such transfer will not result in a
qualification, downgrade or withdrawal of the then-current rating of the
Securities


 


(d)                     Without
limiting the foregoing, if Lender shall consent to a transfer of the Property, the
written assumption agreement described in Subsection 8.3(c)(vi) above
shall provide for the release of Borrower and each Guarantor and Indemnitor of
personal liability under the Note and Other Loan Documents, but only as to acts
or events occurring, or obligations arising, after the closing of such
transfer; provided, however, that the environmental indemnities shall be
subject to termination as provided in Article 8 of the Environmental
Indemnity.


 


Section 8.4.                        NO IMPLIED FUTURE CONSENT.
  Lender’s consent to one sale, conveyance, alienation, mortgage,
encumbrance, pledge or transfer of the Property shall not be deemed to be a
waiver of Lender’s right to require such consent (in accordance with the terms
and provisions hereof) to any future occurrence of same. Any sale, conveyance,
alienation, mortgage, encumbrance, pledge or transfer of the Property made in
contravention of this Article 8 shall be null and void and of no
force and effect.


 


Section 8.5.                        COSTS OF CONSENT.   Borrower
agrees to bear and shall pay or reimburse Lender on demand for all reasonable
expenses (including, without limitation, all recording costs, reasonable attorneys’ fees and disbursements and title
search costs) incurred by Lender
in connection with the review, approval and documentation of any such sale,
conveyance, alienation, mortgage,
encumbrance, pledge or transfer.


 


Section 8.6.                        CONTINUING SEPARATENESS
REQUIREMENTS.   In no event shall any of the terms and provisions
of this Article 8 amend or modify the terms and provisions contained
in Section 4.3 herein.


 


ARTICLE 9- DEFAULT


 


Section 9.1.                        EVENTS OF DEFAULT.   The
occurrence of any one or more of the following events shall constitute an “Event of
Default”:


 


(a)                      if any portion of the Debt is not paid on or
before the seventh (7th) calendar day after the same is due or if
the entire Debt is not paid on or before the maturity date, along with
applicable prepayment premiums, if any;


 


(b)                     if Borrower, or its general partner or
managing member, if applicable, violates or does not comply with any of the
provisions of Section 4.3 or Article 8;


 


29

















 


(c)                      if any representation or warranty of Borrower
or of its members, general partners, or principals or of any Guarantor made
herein or in the Environmental Indemnity or in any other Loan Document, in any
guaranty, or in any certificate, report, financial statement or other
instrument or document furnished to Lender shall have been false or misleading
in any material respect when made;


 


(d)                     if Borrower or any Guarantor shall make an
assignment for the benefit of creditors or if Borrower or any Guarantor shall
admit in writing its inability to pay, or Borrower’s or any Guarantor’s failure
to pay its debts as they become due;


 


(e)                      if (i) Borrower or any subsidiary or
general partner or managing member of Borrower, or any Guarantor shall commence
any case, proceeding or other action (A) under any existing or future law
of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, conservatorship or relief of debtors, seeking to have an order
for relief entered with respect to it, or seeking to adjudicate it a bankrupt
or insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any substantial part of
its assets, or Borrower or any subsidiary or general partner or managing member
of Borrower, or any Guarantor shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against
Borrower or any subsidiary or general partner or managing member of Borrower,
or any Guarantor any case, proceeding or other action of a nature referred to
in clause (i) above which (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of sixty (60) calendar days; or (iii) there
shall be commenced against Borrower or any subsidiary or general partner or
managing member of Borrower or any Guarantor any case, proceeding or other
action seeking issuance of a warrant of attachment, execution, distraint or
similar process against all or any substantial part of its assets which
results in the entry of any order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within sixty (60)
calendar days from the entry thereof; or (iv) Borrower or any subsidiary
or general partner or managing member of Borrower, or any Guarantor shall take
any action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii) or (iii) above;
or (v) Borrower or any subsidiary or general partner or managing member of
Borrower, or any Guarantor shall generally not, or shall be unable to, or shall
admit in writing its inability to, pay its debts as they become due;


 


(f)                        subject
to Borrower’s right to contest certain liens as provided in this Security
Instrument, if the Property becomes subject to any mechanic’s, materialman’s or
other lien other than a lien for local real estate taxes and assessments not
then due and payable and the lien shall remain undischarged of record (by
payment, bonding or otherwise) for a period of sixty (60) calendar days after
Borrower becomes aware of such lien;


 


30

















 


(g)                     if
any federal tax lien is filed against Borrower, any general partner or managing
member of Borrower, any Guarantor or the Property and same is not discharged of
record within sixty (60) calendar days after same is filed;


 


(h)                     except
as permitted in this Security Instrument, and except as required by the Leases,
the actual or threatened alteration, improvement, demolition or removal of any
of the Improvements without the prior consent of Lender;


 


(i)                         damage
to the Property in any manner which is not covered by insurance, which lack of
coverage arises solely as a result of Borrower’s failure to maintain the
insurance required under this Security Instrument;


 


(j)                         without
Lender’s prior consent, (i) any managing agent for the Property resigns or
is removed, (ii) the ownership, management or control of such managing
agent is transferred to a person or entity other than one or more of the
Original Principals, or (iii) there is any material change in the property
management agreement of the Property;


 


(k)                      this
Security Instrument shall cease to constitute a first-priority lien on the
Property (other than in accordance with its terms), except with respect to
mechanic’s or materialman’s claims that have been bonded over and/or are being
contested in accordance with the
provisions hereof;


 


(1)                      seizure or forfeiture of the Property,
or any portion thereof, or Borrower’s interest therein, resulting from criminal
wrongdoing or other unlawful action of Borrower or its affiliates under any
federal, state or local law;


 


(m)                   if Borrower consummates a transaction which would
cause this Security Instrument or Lender’s exercise of its rights under this
Security Instrument, the Note or the Other Loan Documents to constitute a
nonexempt prohibited transaction under ERISA or result in a violation of a
state statute regulating governmental plans, subjecting Lender to liability for
a violation of ERISA or a state statute;


 


(n)                     if
any default occurs under any guaranty or indemnity including the Environmental
Indemnity executed in connection herewith and such default continues after the
expiration of applicable grace periods, or such guaranty or indemnity shall
cease to be in full force and effect, or any guarantor or indemnitor shall deny
or disaffirm its obligation thereunder; and


 


(o)                     if
Borrower or any Guarantor, as the case may be, shall continue to be in
default under any other term, covenant or condition of this Security Instrument
or any Other Loan Documents for thirty (30) calendar days after notice from
Lender; provided that if such default cannot reasonably be cured within
such thirty (30) calendar day period and Borrower (or such Guarantor as the
case may be) shall have commenced to cure such default within such thirty
(30) calendar day period and thereafter diligently and expeditiously proceeds
to cure the same, such thirty (30) calendar day period shall be extended for so
long as it shall require Borrower (or such Guarantor as the case may be)
in the exercise of due diligence to cure such default, it being agreed that no
such


 


31

















 


extension
shall be for a period in excess of ninety (90) calendar days after the notice
from Lender referred to above.


 


Section 9.2.                        DEFAULT INTEREST.   Borrower
will pay, from the date of an Event of Default through the earlier of the date
upon which the Event of Default is cured or the date upon which the Debt is
paid in full, interest on the unpaid principal balance of the Note at the
Default Rate.


 


ARTICLE 10 - RIGHTS AND REMEDIES


 


Section 10.1.   REMEDIES.
  Upon the occurrence of any Event of Default, Borrower agrees that
Lender may take such action, by or through Trustee, by Lender itself or
otherwise, without notice or demand, as it deems advisable to protect and
enforce its rights against Borrower and in and to the Property, including, but
not limited to, the following actions, each of which may be pursued
concurrently or otherwise, at such time and in such order as Lender may determine,
in its sole discretion, without impairing or otherwise affecting the other
rights and remedies of Lender:


 


(a)                      Right
to Perform Borrower’s Covenants.   If Borrower has failed to
keep or perform any covenant whatsoever contained in this Security
Instrument or the Other Loan Documents, Lender may, but shall not be obligated
to any person to do so, perform or attempt to perform said covenant
and any payment made or expense incurred in the performance or attempted
performance of any such covenant, together with any sum expended by Lender that
is chargeable to Borrower or subject to reimbursement by Borrower under the
Loan Documents, shall be and become a part of the “Debt”, and Borrower
promises, upon demand, to pay to Lender, at the place where the Note is
payable, all sums so incurred, paid or expended by Lender, with interest from
the date when paid, incurred or expended by Lender at the Default Rate.


 


(b)                     Right
of Entry.   Lender may, prior or subsequent to the institution of
any foreclosure proceedings, enter upon the Property, or any part thereof,
and take exclusive possession of the Property and of all books, records, and
accounts relating thereto and to exercise without interference from Borrower
any and all rights which Borrower has with respect to the management,
possession, operation, protection, or preservation of the Property, including without
limitation the right to rent the same for the account of Borrower and to deduct
from such Rents all costs, expenses, and liabilities of every character
incurred by Lender in collecting such Rents and in managing, operating,
maintaining, protecting, or preserving the Property and to apply the remainder
of such Rents on the Debt in such manner as Lender may elect. All such
costs, expenses, and liabilities incurred by Lender in collecting such Rents
and in managing, operating, maintaining, protecting, or preserving the
Property, if not paid out of Rents as hereinabove provided, shall constitute a
demand obligation owing by Borrower and shall bear interest from the date of
expenditure until paid at the Default Rate, all of which shall constitute a
portion of the Debt. If necessary to obtain the possession provided for above,
Lender may invoke any and all legal remedies to dispossess Borrower,
including specifically one or more actions for forcible entry and detainer,
trespass to try title, and restitution. In connection with any action taken by
Lender pursuant to this


 


32

















 


Subsection 10.1(b),
Lender shall not be liable for any loss sustained by Borrower resulting from
any failure to let the Property, or any part thereof, or from any other
act or omission of Lender in managing the Property unless such loss is caused
by the willful misconduct of Lender, nor shall Lender be obligated to perform or
discharge any obligation, duty, or liability under any Lease or under or by
reason hereof or the exercise of rights or remedies hereunder. Borrower shall
and does hereby agree to indemnify Lender for, and to hold Lender harmless
from, any and all liability, loss, or damage, which may or might be
incurred by Lender under any such Lease or under or by reason hereof or the
exercise of rights or remedies hereunder, and from any and all claims and
demands whatsoever which may be asserted against Lender by reason of any
alleged obligations or undertakings on its part to perform or
discharge any of the terms, covenants, or agreements contained in any such
Lease. Should Lender incur any such liability, the amount thereof, including
without limitation costs, expenses, and reasonable attorneys’ fees, together
with interest thereon from the date of expenditure until paid at the Default
Rate, shall be secured hereby, and Borrower shall reimburse Lender therefor
immediately upon demand. Nothing in this Subsection 10.1(b) shall
impose any duty, obligation, or responsibility upon Lender for the control,
care, management, leasing, or repair of the Property, nor for the carrying out
of any of the terms and conditions of any such Lease; nor shall it operate to
make Lender responsible or liable for any waste committed on the Property by
the tenants or by any other parties, or for any hazardous substances or
environmental conditions on or under the Property, or for any dangerous or
defective condition of the Property or for any negligence in the management,
leasing, upkeep, repair, or control of the Property resulting in loss or injury
or death to any tenant, licensee, employee, or stranger. Borrower hereby
assents to, ratifies, and confirms any and all actions of Lender with respect
to the Property taken under this subsection.


 


(c)                      Acceleration.
  Upon the occurrence of an Event of Default (other than an Event of
Default described in Section 9.1 (d) or (e) above) and at
any time thereafter Lender may, without notice, demand, presentment, notice of
nonpayment or nonperformance, protest, notice of protest, notice of intent to
accelerate, notice of acceleration, or any other notice or any other action,
all of which are hereby waived by Borrower and all other parties obligated in
any manner whatsoever on the Debt, declare the entire unpaid balance of the
Debt immediately due and payable, and upon such declaration, the entire unpaid
balance of the Debt shall be immediately due and payable. Upon the occurrence
of an Event of Default described in Section 9.1(d) or (e) above,
the entire unpaid balance of the Debt shall immediately and automatically
become due and payable, without notice or demand.


 


(d)                     Foreclosure-Power
of Sale.   Lender may institute a proceeding or proceedings,
judicial, or nonjudicial, by advertisement or otherwise, for the complete or
partial foreclosure of this Security Instrument or the complete or partial sale
of the Property under power of sale or under any applicable provision of law.
Lender may, through the Trustee, sell the Property, and all estate, right,
title, interest, claim and demand of Borrower therein, and all rights of
redemption thereof, at one or more sales, as an entirety or in parcels, with
such elements of real and/or personal property, and at such time and place and
upon such terms as it may deem expedient, or as may be required by
applicable law, and in the event of a sale, by foreclosure or otherwise, of
less than all of


 


33

















 


the
Property, this Security Instrument shall continue as a lien and security
interest on the remaining portion of the Property.


 


(e)                      Rights
Pertaining to Sales.   Subject to the requirements of applicable
law and except as otherwise provided herein, the following provisions shall
apply to any sale or sales of all or any portion of the Property under or by
virtue of Subsection 10.1(d) above, whether made under the
power of sale herein granted or by virtue of judicial proceedings or of a
judgment or decree of foreclosure and sale:


 


(i)                         Trustee
or Lender may conduct any number of sales from time to time. The power of
sale set forth above shall not be exhausted by any one or more such sales as to
any part of the Property which shall not have been sold, nor by any sale
which is not completed or is defective in Lender’s opinion, until the Debt
shall have been paid in full.


 


(ii)                      Any
sale may be postponed or adjourned by public announcement at the time and
place appointed for such sale or for such postponed or adjourned sale without
further notice.


 


(iii)                   After each sale, Lender, Trustee or
an officer of any court empowered to do so shall execute and deliver to the
purchaser or purchasers at such sale a good and sufficient instrument or
instruments granting, conveying, assigning and transferring all right, title
and interest of Borrower in and to the property and rights sold and shall
receive the proceeds of said sale or sales and apply the same as specified in
the Note. Each of Trustee and Lender is hereby appointed the true and lawful
attorney-in-fact of Borrower, which appointment is irrevocable and shall be deemed
to be coupled with an interest, in Borrower’s name and stead, to make all
necessary conveyances, assignments, transfers and deliveries of the property
and rights so sold, Borrower hereby ratifying and confirming all that said
attorney or such substitute or substitutes shall lawfully do by virtue thereof.
Nevertheless, Borrower, if requested by Trustee or Lender, shall ratify and
confirm any such sale or sales by executing and delivering to Trustee, Lender
or such purchaser or purchasers all such instruments as may be advisable,
in Trustee’s or Lender’s judgment, for the purposes as may be designated
in such request.


 


(iv)                  Any
and all statements of fact or other recitals made in any of the instruments
referred to in Subsection 10.1(e)(iii) given by Trustee or
Lender shall be taken as conclusive and binding against all persons as to
evidence of the truth of the facts so stated and recited.


 


(v)                     Any
such sale or sales shall operate to divest all of the estate, right, title,
interest, claim and demand whatsoever, whether at law or in equity, of Borrower
in and to the properties and rights so sold, and shall be a perpetual bar both
at law and in equity against Borrower and any and all persons claiming or who may claim
the same, or any part thereof or any interest therein, by, through or
under Borrower to the fullest extent permitted by applicable law.


 


34

















 


(vi)                  Upon
any such sale or sales, Lender may bid for and acquire the Property and,
in lieu of paying cash therefor, may make settlement for the purchase
price by crediting against the Debt the amount of the bid made therefor, after
deducting therefrom the expenses of the sale, the cost of any enforcement
proceeding hereunder, and any other sums which Trustee or Lender is authorized
to deduct under the terms hereof, to the extent necessary to satisfy such bid.


 


(vii)               Upon any such sale, it shall not be
necessary for Trustee, Lender or any public officer acting under execution or
order of court to have present or constructively in its possession any of the
Property.


 


(f)                        Lender’s
Judicial Remedies.   Lender, or Trustee upon written request of
Lender, may proceed by suit or suits, at law or in equity, to enforce the
payment of the Debt to foreclose the liens and security interests of this
Security Instrument as against all or any part of the Property, and to
have all or any part of the Property sold under the judgment or decree of
a court of competent jurisdiction. This remedy shall be cumulative of any other
nonjudicial remedies available to Lender under this Security Instrument, the
Note or the Other Loan Documents. Proceeding with a request or receiving a
judgment for legal relief shall not be or be deemed to be an election of
remedies or bar any available nonjudicial remedy of Lender.


 


(g)                     Lender’s
Right to Appointment of Receiver.   Lender, as a matter of right
and (i) without regard to the sufficiency of the security for repayment of
the Debt and without notice to Borrower, (ii) without any showing of
insolvency, fraud, or mismanagement on the part of Borrower, (iii) without
the necessity of filing any judicial or other proceeding other than the
proceeding for appointment of a receiver, and (iv) without regard to the
then value of the Property, shall be entitled to the appointment of a receiver
or receivers for the protection, possession, control, management and operation
of the Property, including (without limitation), the power to collect the
Rents, enforce this Security Instrument and, in case of a sale and deficiency,
during the full statutory period of redemption (if any), whether there be a
redemption or not, as well as during any further times when Borrower, except
for the intervention of such receiver, would be entitled to collection of such
Rents. Borrower hereby irrevocably consents to the appointment of a receiver or
receivers. Any receiver appointed pursuant to the provisions of this subsection shall
have the usual powers and duties of receivers in such matters.


 


(h)                     Commercial
Code Remedies.   Lender may exercise any and all rights and
remedies granted to a secured party upon default under the Uniform Commercial
Code, including, without limiting the generality of the foregoing: (i) the
right to take possession of the Personal Property or any part thereof, and
to take such other measures as Lender may deem necessary for the care,
protection and preservation of the Personal Property, and (ii) request
Borrower at its expense to assemble the Personal Property and make it available
to Lender at a convenient place acceptable to Lender. Any notice of sale,
disposition or other intended action by Lender with respect to the Personal
Property sent to Borrower in accordance with the provisions hereof at least
five (5) days prior to such action, shall constitute commercially
reasonable notice to Borrower.


 


35

















 


(i)                         Apply
Escrow Funds.   Lender may apply any Funds (as defined in
the Escrow Agreement) and any other sums held in escrow or otherwise by Lender
in accordance with the terms of this Security Instrument or any Other Loan
Document to the payment of the following items in any order in its uncontrolled
discretion:


 


(i)                         Taxes and
Other Charges;


 


(ii)                      Insurance
Premiums;


 


(iii)                   Interest on the
unpaid principal balance of the Note;


 


(iv)                  Amortization of
the unpaid principal balance of the Note; and


 


(v)                     All
other sums payable pursuant to the Note, this Security Instrument and the Other
Loan Documents, including without limitation advances made by Lender pursuant
to the terms of this Security Instrument.


 


(j)                         Other
Rights.   Lender (i) may apply any funds held by Lender
toward payment of the Debt; and (ii) shall have and may exercise any
and all other rights and remedies which Lender may have at law or in
equity, or by virtue of any of the Loan Documents, or otherwise.


 


(k)                      Discontinuance
of Remedies.   In case Lender shall have proceeded to invoke any
right, remedy, or recourse permitted under the Loan Documents and shall
thereafter elect to discontinue or abandon same for any reason, Lender shall
have the unqualified right so to do and, in such event, Borrower and Lender
shall be restored to their former positions with respect to the Debt, the Loan
Documents, the Property or otherwise, and the rights, remedies, recourses and powers
of Lender shall continue as if same had never been invoked.


 


(l)                         Remedies
Cumulative.   All rights, remedies, and recourses of Lender
granted in the Note, this Security Instrument and the Other Loan Documents, any
other pledge of collateral, or otherwise available at law or equity: (i) shall
be cumulative and concurrent; (ii) may be pursued separately,
successively, or concurrently against Borrower, the Property, or any one or
more of them, at the sole discretion of Lender; (iii) may be
exercised as often as occasion therefor shall arise, it being agreed by
Borrower that the exercise or failure to exercise any of same shall in no event
be construed as a waiver or release thereof or of any other right, remedy, or
recourse; (iv) shall be nonexclusive; (v) shall not be conditioned
upon Lender exercising or pursuing any remedy in relation to the Property prior
to Lender bringing suit to recover the Debt; and (vi) in the event Lender
elects to bring suit on the Debt and obtains a judgment against Borrower prior
to exercising any remedies in relation to the Property, all liens and security
interests, including the lien of this Security Instrument, shall remain in full
force and effect and may be exercised thereafter at Lender’s option.


 


(m)                   Bankruptcy
Acknowledgment.   In the event the Property or any portion
thereof or any interest therein becomes property of any bankruptcy estate or
subject to any state or federal insolvency proceeding (other than pursuant to a
bankruptcy by or


 


36

















 


against
a tenant under a Lease), then Lender shall immediately become entitled, in
addition to all other relief to which Lender may be entitled under this
Security Instrument, to obtain (i) an order from the Bankruptcy Court or
other appropriate court granting immediate relief from the automatic stay
pursuant to § 362 of the Bankruptcy Code so to permit Lender to
pursue its rights and remedies against Borrower as provided under this Security
Instrument and all other rights and remedies of Lender at law and in equity
under applicable state law, and (ii) an order from the Bankruptcy Court
prohibiting Borrower’s use of all “cash collateral” as defined under § 363
of the Bankruptcy Code. In connection with such Bankruptcy Court orders, Borrower
shall not contend or allege in any pleading or petition filed in any court
proceeding that Lender does not have sufficient grounds for relief from the
automatic stay. Any bankruptcy petition or other action taken by the Borrower
to stay, condition, or inhibit Lender from exercising its remedies are hereby
admitted by Borrower to be in bad faith and Borrower further admits that Lender
would have just cause for relief from the automatic stay in order to take such
actions authorized under state law.


 


(n)                     Application
of Proceeds.   The proceeds from any sale, lease, or other
disposition made pursuant to this Security Instrument, or any Rents collected
by Lender from the Property, if any, or proceeds from insurance which Lender
elects to apply to the Debt pursuant to Article 3 hereof, shall be
applied by Trustee, or by Lender, as the case may be, to the Debt in the
following order and priority: (1) to the payment of all expenses of
advertising, selling, and conveying the Property or part thereof, and/or
prosecuting or otherwise collecting Rents, proceeds, premiums or other sums
including reasonable attorneys’ fees and a reasonable fee or commission to
Trustee, not to exceed five percent of the proceeds thereof or sums so
received; (2) to that portion, if any, of the Debt with respect to which
no person or entity has personal or entity liability for payment (the “Exculpated
Portion”), and with respect to the Exculpated Portion as
follows: first, to accrued but unpaid interest, second, to matured principal,
and third, to unmatured principal in inverse order of maturity; (3) to the
remainder of the Debt as follows: first, to the remaining accrued but unpaid
interest, second, to the matured portion of principal of the Debt, and third,
to prepayment of the unmatured portion, if any, of principal of the Debt
applied to installments of principal in inverse order of maturity; (4) the
balance, if any or to the extent applicable, remaining after the full and final
payment of the Debt to the holder or beneficiary of any inferior liens covering
the Property, if any, in order of the priority of such inferior liens (Trustee
and Lender shall hereby be entitled to rely exclusively on a commitment for
title insurance issued to determine such priority); and (5) the cash
balance, if any, to the Borrower. The application of proceeds of sale or other
proceeds as otherwise provided herein shall be deemed to be a payment of the
Debt like any other payment. The balance of the Debt remaining unpaid, if any,
shall remain fully due and owing in accordance with the terms of the Note and
the other Loan Documents.


 


Section 10.2.                  RIGHT OF ENTRY.   Lender
and its agents shall have the right to enter and inspect the Property at all
reasonable times, subject, however, to the rights of tenants and other
occupants of the Property.


 


37

















 


ARTICLE 11 - INDEMNIFICATION; SUBROGATION


 


Section 11.1.                  GENERAL INDEMNIFICATION.


 


(a)                      Borrower
shall indemnify, defend and hold Lender and Trustee harmless against: (i) any
and all claims, by, through or under Borrower, for brokerage, leasing, finder’s
or similar fees which may be made relating to the Property or the Debt,
and (ii) any and all liability, obligations, losses, damages, penalties,
claims, actions, suits, costs and expenses (including Lender’s reasonable
attorneys’ fees, together with reasonable appellate counsel fees, if any) of
whatever kind or nature which may be asserted against, imposed on or
incurred by Lender or Trustee in connection with the Debt, this Security
Instrument, the Property, or any part thereof, or the exercise by Lender
or Trustee of any rights or remedies granted to it under this Security
Instrument; provided, however, that nothing herein shall be
construed to obligate Borrower to indemnify, defend and hold harmless Lender
from and against any and all liabilities, obligations, losses, damages,
penalties, claims, actions, suits, costs and expenses enacted against, imposed
on or incurred by Lender by reason of Lender’s willful misconduct or gross
negligence.


 


(b)                     If
Lender is made a party defendant to any litigation or any claim is threatened
or brought against Lender concerning the secured indebtedness, this Security
Instrument, the Property, or any part thereof, or any interest therein, or
the construction, maintenance, operation or occupancy or use thereof, then
Lender shall notify Borrower of such litigation or claim and Borrower shall
indemnify, defend and hold Lender harmless from and against all liability by
reason of said litigation or claims, including reasonable attorneys’ fees
(together with reasonable appellate counsel fees, if any). The right to such
attorneys’ fees (together with reasonable appellate counsel fees, if any) and
expenses incurred by Lender in any such litigation or claim of the type
described in this Subsection 11.1(b), whether or not any such
litigation or claim is prosecuted to judgment, shall be deemed to have accrued
on the commencement of such claim or action and shall be enforceable whether or
not such claim or action is prosecuted to judgment. If Lender commences an
action against Borrower to enforce any of the terms hereof or to prosecute any
breach by Borrower of any of the terms hereof or to recover any sum secured
hereby, Borrower shall pay to Lender its reasonable attorneys’ fees (together
with reasonable appellate counsel fees, if any) and expenses. If Borrower
breaches any term of this Security Instrument, Lender may engage the
services of an attorney or attorneys to protect its rights hereunder, and in
the event of such engagement following any breach by Borrower, Borrower shall
pay Lender reasonable attorneys’ fees (together with reasonable appellate
counsel fees, if any) and expenses incurred by Lender, whether or not an action
is actually commenced against Borrower by reason of such breach. All references
to “attorneys”
in this Subsection 11.1(b) and elsewhere in this Security
Instrument shall include without limitation any attorney or law firm engaged by
Lender and Lender’s in-house counsel, and all references to “fees and
expenses” in this Subsection 11.1(b) and
elsewhere in this Security Instrument shall include without limitation any fees
of such attorney or law firm and any allocation charges and allocation costs of
Lender’s in-house counsel.


 


38

















 


(c)                      A
waiver of subrogation shall be obtained by Borrower from its insurance carrier
and, consequently, Borrower waives any and all right to claim or recover
against Lender, its officers, employees, agents and representatives, for loss
of or damage to Borrower, the Property, Borrower’s property or the property of
others under Borrower’s control from any cause insured against or required to
be insured against by the provisions of this Security Instrument.


 


Section 11.2.                  ENVIRONMENTAL INDEMNIFICATION.
  Borrower shall, at its sole cost and expense, protect, defend,
indemnify, release and hold harmless the Indemnified Parties from and against
any and all Losses (as hereinafter defined) imposed upon or incurred by or asserted
against any Indemnified Parties (other than those arising solely from a state
of facts that first came into existence after Lender (or any other party)
acquired title to the Property through foreclosure or a deed in lieu thereof),
and directly or indirectly arising out of or in any way relating to any one or
more of the following: (a) any presence of any Hazardous Substances (as
hereinafter defined) in, on, above, or under the Property; (b) any past,
present or future Release (as hereinafter defined) of Hazardous Substances in,
on, above, under or from the Property; (c) any activity by Borrower, any
person or entity affiliated with Borrower, and any tenant or other user of the
Property in connection with any actual, proposed or threatened use, treatment,
storage, holding, existence, disposition or other Release, generation,
production, manufacturing, processing, refining, control, management,
abatement, removal, handling, transfer or transportation to or from the
Property of any Hazardous Substances at any time located in, under, on or above
the Property; (d) any activity by Borrower, any person or entity
affiliated with Borrower, and any tenant or other user of the Property in
connection with any actual or proposed Remediation (as hereinafter defined) of
any Hazardous Substances at any time located in, under, on or above the
Property, whether or not such Remediation is voluntary or pursuant to court or
administrative order, including but not limited to any removal, remedial or
corrective action; (e) any past, present or threatened non-compliance or
violations of any Environmental Law (as hereinafter defined) (or permits issued
pursuant to any Environmental Law) in connection with the Property or
operations thereon, including but not limited to any failure by Borrower, any
person or entity affiliated with Borrower, and any tenant or other user of the
Property to comply with any order of any governmental authority in connection
with any Environmental Laws; (f) the imposition, recording or filing or
the future imposition, recording or filing of any Environmental Lien (as
hereinafter defined) encumbering the Property; (g) any administrative
processes or proceedings or judicial proceedings in any way connected with any
matter addressed in this Section 11.2; (h) any material
misrepresentation or inaccuracy in any representation or warranty or material
breach or failure to perform any covenants or other obligations under the
Environmental Indemnity of even date executed by Borrower and Indemnitor; and (i) any
diminution in value of the Property in any way connected with any occurrence or
other matter referred to in this Section 11.2.


 


The term “Environmental Law” means any present
and future federal, state and local laws, statutes, ordinances, rules,
regulations and the like, as well as common law, relating to protection of
human health or the environment, relating to Hazardous Substances, relating to
liability for or costs of Remediation or prevention of Releases of Hazardous
Substances or relating to liability for or costs of other actual or threatened
danger to human health or the environment. The term “Environmental Law”
includes, but is not limited to, the following statutes, as amended, any
successor thereto, and any regulations promulgated pursuant thereto,


 


39

















 


and any state or
local statutes, ordinances, rules, regulations and the like addressing similar
issues: the Comprehensive Environmental Response, Compensation and Liability
Act; the Emergency Planning and Community Right-to-Know Act; the Hazardous
Substances Transportation Act; the Resource Conservation and Recovery Act
(including but not limited to Subtitle I relating to underground storage
tanks); the Solid Waste Disposal Act; the Clean Water Act; the Clean Air Act;
the Toxic Substances Control Act; the Safe Drinking Water Act; the Occupational
Safety and Health Act; the Federal Water Pollution Control Act; the Federal
Insecticide, Fungicide and Rodenticide Act; the Endangered Species Act; the
National Environmental Policy Act; and the River and Harbors Appropriation Act.
The term “Environmental Law” also includes, but is not limited
to, any present and future federal, state and local laws, statutes, ordinances,
rules, regulations and the like, as well as common law: conditioning transfer
of property upon a negative declaration or other approval of a governmental
authority of the environmental condition of the Property; requiring
notification or disclosure of Releases of Hazardous Substances or other environmental
condition of the Property to any governmental authority or other person or
entity, whether or not in connection with transfer of title to or interest in
property; imposing conditions or requirements in connection with permits or
other authorization for lawful activity; relating to nuisance, trespass or
other causes of action related to the Property; and relating to wrongful death,
personal injury, or property or other damage in connection with any physical
condition or use of the Property.


 


The term “Environmental Lien” includes but is
not limited to any lien or other encumbrance imposed pursuant to Environmental
Law, whether due to any act or omission of Borrower or any other person or
entity.


 


The term “Hazardous Substances” includes but
is not limited to any and all substances (whether solid, liquid or gas)
defined, listed, or otherwise classified as pollutants, hazardous wastes,
hazardous substances, hazardous materials, extremely hazardous wastes, or words
of similar meaning or regulatory effect under any present or future
Environmental Laws, including but not limited to petroleum and petroleum
products, asbestos and asbestos-containing materials, polychlorinated
biphenyls, lead, lead-based paints, radon, radioactive materials, flammables,
explosives and, to the extent subject to regulation by any Environmental Law,
any toxic fungus, including mold, mildew and any mycotoxins, spores, scents or
byproducts produced by fungi.


 


The term “Indemnified Parties” includes but is
not limited to Lender, any person or entity who is or will have been involved
in originating the Loan evidenced by the Note, any person or entity who is or
will have been involved in servicing the Loan, any person or entity in whose
name the encumbrance created by this Security Instrument is or will have been
recorded, persons and entities who may hold or acquire or will have held a
full or partial interest in the Loan (including but not limited to those who may acquire
any interest in Securities, as well as custodians, trustees and other
fiduciaries who hold or have held a full or partial interest in the Loan for
the benefit of third parties), as well as the respective directors, officers,
shareholders, partners, employees, agents, servants, representatives,
contractors, subcontractors, affiliates, subsidiaries, participants, successors
and assign of any and all of the foregoing (including but not limited to any
other person or entity who holds or acquires or will have held a participation
or other full or partial interest in the Loan or the Property, whether during
the term of the Loan or as part of or following foreclosure pursuant to
the Loan) and including but not limited to any


 


40

















 


successors by
merger, consolidation or acquisition of all or a substantial part of
Lender’s assets and business.


 


The term “Losses” includes but is not limited
to any claims, suits, liabilities (including but not limited to strict
liabilities), administrative or judicial actions or proceedings, obligations,
debts, damages, losses, costs, expenses, diminutions in value, fines,
penalties, charges, fees, expenses, costs of Remediation (whether or not
performed voluntarily), judgments, award, amounts paid in settlement,
litigation costs, attorneys’ fees, engineer’s fees, environmental consultants’
fees and investigation costs (including but not limited to costs for sampling,
testing and analysis of soil, water, air, building materials, and other
materials and substances whether solid, liquid or gas), of whatever kind or
nature, and whether or not incurred in connection with any judicial or
administrative proceedings.


 


The term “Release” with respect to any
Hazardous Substance includes but is not limited to any release, deposit,
discharge, emission, leaking, leaching, spilling, seeping, migrating,
injecting, pumping, pouring, emptying, escaping, dumping, disposing or other
movement of Hazardous Substances.


 


The term “Remediation” includes but is not
limited to any response, remedial, removal, or corrective action; any activity
to cleanup, detoxify, decontaminate, contain or otherwise remediate any
Hazardous Substance; any actions to prevent, cure or mitigate any Release of
any Hazardous Substance; any action to comply with any Environmental Laws or
with any permits issued pursuant thereto; any inspection, investigation, study,
monitoring, assessment, audit, sampling and testing, laboratory or other
analysis, or evaluation relating to any Hazardous Substances or to anything
referred to in this Article 11.


 


Section 11.3.                  DUTY TO DEFEND AND ATTORNEYS AND
OTHER FEES AND EXPENSES.   Upon written request by any
Indemnified Party, Borrower shall defend such Indemnified Party (if requested
by any Indemnified Party, in the name of the Indemnified Party) by attorneys
and other professionals approved by the Indemnified Parties. Notwithstanding
the foregoing, any Indemnified Parties may, in their sole and absolute
discretion, engage their own attorneys and other professionals to defend or
assist them, and, at the option of Indemnified Parties, their attorneys shall
control the resolution of claim or proceeding. Upon demand, Borrower shall pay
or, in the sole and absolute discretion of the Indemnified Parties, reimburse,
the Indemnified Parties for the payment of reasonable fees and disbursements of
attorneys, engineers, environmental consultants, laboratories and other
professionals in connection therewith.


 


Section 11.4.                  SURVIVAL OF INDEMNITIES.   Notwithstanding
any provision of this Security Instrument or any other Loan Document to the
contrary, the provisions of Section 11.1 and Section 11.2,
and Borrower’s obligations thereunder, shall survive (a) the repayment of
the Note, (b) the foreclosure of this Security Instrument, and (c) the
release (or reconveyance, as applicable) of the lien of this Security
Instrument; provided, however, that the indemnities set forth in Section 11.2
shall be subject to termination as provided in Article 8 of the
Environmental Indemnity.


 


41

















 


ARTICLE 12 - SECURITY AGREEMENT


 


Section 12.1.                  SECURITY AGREEMENT.   This
Security Instrument is both a real property mortgage and a “security agreement”
within the meaning of the Uniform Commercial Code. The Property includes
both real and personal property and all other rights and interests, whether
tangible or intangible in nature, of Borrower in the Property. Borrower by
executing and delivering this Security Instrument has granted and hereby grants
to Lender, as security for the Obligations, a security interest in the Property
to the full extent that the Property may be subject to the Uniform Commercial
Code (said portion of the Property so subject to the Uniform Commercial
Code being called in this paragraph the “Collateral”). Borrower hereby agrees
with Lender to execute and deliver to Lender, in form and substance
satisfactory to Lender, such financing statements, continuation statements,
other uniform commercial code forms and shall pay all expenses and fees in
connection with the filing and recording thereof, and such further assurances
as Lender may from time to time, reasonably consider necessary to create,
perfect, and preserve Lender’s security interest herein granted. This Security
Instrument shall also constitute a “fixture filing” for the purposes of the Uniform Commercial
Code. All or part of the Property are or are to become fixtures.
Information concerning the security interest herein granted may be
obtained from the parties at the addresses of the parties set forth in the
first paragraph of this Security Instrument. If an Event of Default shall
occur, Lender, in addition to any other rights and remedies which they may have,
shall have and may exercise immediately and without demand, any and all
rights and remedies granted to a secured party upon default under the Uniform Commercial
Code, including, without limiting the generality of the foregoing, the right to
take possession of the Collateral or any part thereof, and to take such
other measures as Lender may deem necessary for the care, protection and preservation
of the Collateral. Upon request or demand of Lender, Borrower shall at its
expense assemble the Collateral and make it available to Lender at a convenient
place acceptable to Lender. Borrower shall pay to Lender on demand any and all
expenses, including legal expenses and attorneys’ fees, incurred or paid by
Lender in protecting the interest in the Collateral and in enforcing the rights
hereunder with respect to the Collateral. Any notice of sale, disposition or
other intended action by Lender with respect to the Collateral sent to Borrower
in accordance with the provisions hereof at least five (5) days prior to
such action, shall constitute commercially reasonable notice to Borrower. The
proceeds of any disposition of the Collateral, or any part thereof, may be
applied by Lender to the payment of the Obligations in such priority and
proportions as Lender in its discretion shall deem proper. In the event of any
change in name, identity or structure of any Borrower, such Borrower shall
notify Lender thereof, and promptly after request shall execute, file and
record such Uniform Commercial Code forms as are necessary to maintain the
priority of Lender’s lien upon and security interest in the Collateral, and
shall pay all expenses and fees in connection with the filing and recording
thereof. If Lender shall require the filing or recording of additional Uniform Commercial
Code forms or continuation statements, Borrower shall, promptly after request,
execute, file and record such Uniform Commercial Code forms or
continuation statements as Lender shall deem necessary, and shall pay all
expenses and fees in connection with the filing and recording thereof it being
understood and agreed, however, that no such additional documents shall
increase Borrower’s obligations under the Note, this Security Instrument and
the Other Loan Documents. Borrower hereby irrevocably appoints Lender as its
attorney-in-fact, coupled with an interest, to file with the appropriate public
office on its behalf any financing or other statements signed only by Lender,
as Borrower’s attorney-in-fact, in connection with the Collateral covered by
this Security Instrument. Notwithstanding the


 


42

















 


foregoing,
Borrower shall appear and defend in any action or proceeding which affects or
purports to affect the Property and any interest or right therein, whether such
proceeding effects title or any other rights in the Property (and in
conjunction therewith, Borrower shall fully cooperate with Lender in the event
Lender is a party to such action or proceeding).


 


ARTICLE 13 - WAIVERS


 


Section 13.1.                  MARSHALLING AND OTHER MATTERS.
   Borrower hereby waives, to the extent permitted by law, the
benefit of all appraisement, valuation, stay, extension, reinstatement and
redemption laws now or hereafter in force and all rights of marshalling in the
event of any sale hereunder of the Property or any part thereof or any
interest therein. Further, Borrower hereby expressly waives any and all rights
of redemption from sale under any order or decree of foreclosure of this
Security Instrument on behalf of Borrower, and on behalf of each and every
person acquiring any interest in or title to the Property subsequent to the
date of this Security Instrument and on behalf of all persons to the extent
permitted by applicable law.


 


Section 13.2.                  WAIVER OF NOTICE.   Borrower
shall not be entitled to any notices of any nature whatsoever from Lender
except with respect to matters for which this Security Instrument specifically
and expressly provides for the giving of notice by Lender to Borrower and
except with respect to matters for which Lender is required by applicable law
to give notice, and Borrower hereby expressly waives the right to receive any
notice from Lender with respect to any matter for which this Security
Instrument does not specifically and expressly provide for the giving of notice
by Lender to Borrower.


 


Section 13.3.                  SOLE DISCRETION OF LENDER.   Wherever
pursuant to this Security Instrument Lender exercises any right given to it to
approve or disapprove, or any arrangement or term is to be satisfactory to
Lender, the decision of Lender to approve or disapprove or to decide that
arrangements or terms are satisfactory or not satisfactory shall be in the sole
discretion of Lender and shall be final and conclusive, except as may be
otherwise expressly and specifically provided herein.


 


Section 13.4.                  SURVIVAL.   Except
as otherwise set forth herein and in the Environmental Indemnity, the
indemnifications made pursuant to Article 11, shall continue
indefinitely in full force and effect and shall survive and shall in no way be
impaired by: any satisfaction or other termination of this Security Instrument,
any assignment or other transfer of all or any portion of this Security
Instrument or Lender’s interest in the Property (but, in such case, shall
benefit both Indemnified Parties and any assignee or transferee), any exercise
of Lender’s rights and remedies pursuant hereto including but not limited to
foreclosure or acceptance of a deed in lieu of foreclosure, any exercise of any
rights and remedies pursuant to the Note or any of the Other Loan Documents,
any transfer of all or any portion of the Property (whether by Borrower or by
Lender following foreclosure or acceptance of a deed in lieu of foreclosure or
at any other time), any amendment to this Security Instrument, the Note or the
Other Loan Documents, and any act or omission that might otherwise be construed
as a release or discharge of Borrower from the obligations pursuant hereto.


 


43

















 


Section 13.5.                  WAIVER OF
TRIAL BY JURY.


 


BORROWER HEREBY AGREES NOT TO ELECT A
TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO
TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER
EXIST WITH REGARD TO THIS SECURITY INSTRUMENT, THE NOTE OR THE OTHER LOAN
DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
THEREWITH INCLUDING, BUT NOT LIMITED TO THOSE RELATING TO (A) ALLEGATIONS
THAT A PARTNERSHIP EXISTS BETWEEN LENDER AND BORROWER; (B) USURY OR
PENALTIES OR DAMAGES THEREFOR; (C) ALLEGATIONS OF UNCONSCIONABLE ACTS,
DECEPTIVE TRADE PRACTICE, LACK OF GOOD FAITH OR FAIR DEALING, LACK OF
COMMERCIAL REASONABLENESS, OR SPECIAL RELATIONSHIPS (SUCH AS FIDUCIARY, TRUST
OR CONFIDENTIAL RELATIONSHIP); (D) ALLEGATIONS OF DOMINION, CONTROL, ALTER
EGO, INSTRUMENTALITY, FRAUD, REAL ESTATE FRAUD, MISREPRESENTATION, DURESS,
COERCION, UNDUE INFLUENCE, INTERFERENCE OR NEGLIGENCE; (E) ALLEGATIONS OF
TORTIOUS INTERFERENCE WITH PRESENT OR PROSPECTIVE BUSINESS RELATIONSHIPS OR OF
ANTITRUST; OR (F) SLANDER, LIBEL OR DAMAGE TO REPUTATION. THIS WAIVER OF
RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER, AND IS
INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE
RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED TO
FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS
WAIVER BY BORROWER.


 


Section 13.6.                  WAIVER OF AUTOMATIC OR
SUPPLEMENTAL STAY.   In the event of the filing of any voluntary
or involuntary petition under the Bankruptcy Code by or against Borrower (other
than an involuntary petition filed by or joined in by Lender), the Borrower
shall not assert, or request any other party to assert, that the automatic stay
under § 362 of the Bankruptcy Code shall operate or be interpreted
to stay, interdict, condition, reduce or inhibit the ability of Lender to
enforce any rights it has by virtue of this Security Instrument, or any other
rights that Lender has, whether now or hereafter acquired, against any
guarantor of the Debt. Further, Borrower shall not seek a supplemental stay or
any other relief, whether injunctive or otherwise, pursuant to § 105
of the Bankruptcy Code or any other provision therein to stay, interdict,
condition, reduce or inhibit the ability of Lender to enforce any rights it has
by virtue of this Security Instrument against any guarantor of the Debt. The
waivers contained in this paragraph are a material inducement to Lender’s
willingness to enter into this Security Instrument and Borrower acknowledges
and agrees that no grounds exist for equitable relief which would bar, delay or
impede the exercise by Lender of Lender’s rights and remedies against Borrower
or any guarantor of the Debt.


 


ARTICLE 14 - NOTICES


 


Section 14.1.                  NOTICES.   All
notices or other written communications hereunder shall be deemed to have been
properly given (i) upon delivery, if delivered in person or by facsimile
transmission with receipt acknowledged, (ii) one (1) Business Day
after having been deposited for overnight delivery with any reputable overnight
courier service, or (iii) three (3) Business


 


44

















 


Days after having
been deposited in any post office or mail depository regularly maintained by
the U.S. Postal Service and sent by registered or certified mail, postage
prepaid, addressed as follows:


 


	
  If to Borrower:

  	
   

  	
  A-S-K 41 Eldridge – W. Little York, L.P.

  c/o NewQuest Properties

  8807 W. Sam Houston Parkway N., Suite 200

  Houston, Texas 77040

  Attention: Steven D. Alvis

  Facsimile No.: (281) 477-4399

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Nathan Sommers Jacobs + Gorman

  2800 Post Oak Boulevard, 61st Floor

  Houston, Texas 77056

  Attn: Louis B. Sullivan III, Esq.

  Facsimile No.: (713) 892-4840

  
	
   

  	
   

  	
   

  
	
  If to Lender:

  	
   

  	
  ARCap Servicing, Inc.

  5605 N. MacArthur Blvd., Suite 950

  Irving, Texas 75038

  Attention: Clyde Greenhouse

  
	
   

  	
   

  	
   

  	
  Director of Administration

  
	
   

  	
   

  	
  Facsimile No.: (972) 580-3888

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Kelley Drye & Warren LLP

  200 Kimball Drive

  Parsippany, New Jersey 07054

  Attention: Paul A. Keenan, Esq.

  Facsimile No.: (973) 503-5950

  



 


or addressed as
such party may from time to time designate by written notice to the other
parties. For purposes of this subsection, the term “Business Day” shall mean
a day on which commercial banks are not authorized or required by law to close
in New York, New York.


 


Any party by notice to the other parties may designate additional
or different addresses for subsequent notices or communications.


 


ARTICLE 15 - APPLICABLE LAW


 


Section 15.1.                  GOVERNING LAW; JURISDICTION.   This
Security Instrument shall be governed by and construed in accordance with
applicable federal law and the laws of the state where the Property is located,
without reference or giving effect to any choice of law doctrine. Borrower
hereby irrevocably submits to the jurisdiction of any court of competent
jurisdiction located in the state in which the Property is located in
connection with any proceeding arising out of or relating to this Security
Instrument.


 


45

















 


Section 15.2.                  USURY LAWS.   This
Security Instrument and the Note are subject to the express condition that at
no time shall Borrower be obligated or required to pay interest on the Debt at
a rate which could subject the holder of the Note to either civil or criminal
liability as a result of being in excess of the maximum interest rate which
Borrower is permitted by applicable law to contract or agree to pay. If by the
terms of this Security Instrument or the Note, Borrower is at any time required
or obligated to pay interest on the Debt at a rate in excess of such maximum
rate, the rate of interest under the Security Instrument and the Note shall be
deemed to be immediately reduced to such maximum rate and the interest payable
shall be computed at such maximum rate and all prior interest payments in
excess of such maximum rate shall be applied and shall be deemed to have been
payments in reduction of the principal balance of the Note. All sums paid or
agreed to be paid to Lender for the use, forbearance, or detention of the Debt
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated, and spread throughout the full stated term of the Note until payment
in full so that the rate or amount of interest on account of the Debt does not
exceed the maximum lawful rate of interest from time to time in effect and
applicable to the Debt for so long as the Debt is outstanding.


 


Section 15.3.                  PROVISIONS SUBJECT TO APPLICABLE
LAW.   All rights, powers and remedies provided in this Security
Instrument may be exercised only to the extent that the exercise thereof
does not violate any applicable provisions of law and are intended to be
limited to the extent necessary so that they will not render this Security
Instrument invalid, unenforceable or not entitled to be recorded, registered or
filed under the provisions of any applicable law. If any term of this Security
Instrument or any application thereof shall be invalid or unenforceable, the
remainder of this Security Instrument and any other application of the term
shall not be affected thereby.


 


ARTICLE 16 - SECONDARY MARKET


 


Section 16.1.                  TRANSFER OF LOAN.   Lender
may, at any time, sell, transfer or assign the Note, this Security Instrument
and the Other Loan Documents, and any or all servicing rights with respect
thereto, or grant participations therein or issue mortgage pass-through
certificates or other securities evidencing a beneficial interest in a rated or
unrated public offering or private placement (the “Securities”). Lender
may forward to each purchaser, transferee, assignee, servicer,
participant, investor in such Securities or any Rating Agency rating such
Securities (collectively, the “Investor”) and each prospective
Investor, all documents and information which Lender now has or may hereafter
acquire relating to the Debt and to Borrower, any Guarantor, any Indemnitor and
the Property, whether furnished by Borrower, any Guarantor, any Indemnitor or
otherwise, as Lender determines necessary or desirable. The term “Rating
Agency” shall mean each statistical rating agency that has
assigned a rating to the Securities.


 


ARTICLE 17 - COSTS


 


Section 17.1.                  PERFORMANCE AT BORROWER’S EXPENSE.
  Borrower acknowledges and confirms that Lender shall impose certain
administrative processing and/or commitment fees in connection with (a) the
extension, renewal, modification, amendment and termination (excluding the
scheduled maturity of the Note) of its loans, (b) the release or
substitution of collateral therefor, or (c) obtaining certain consents,
waivers and approvals with respect to the Property (the occurrence of any of
the above shall be called an “Event”).


 


46

















 


Borrower hereby
acknowledges and agrees to pay, immediately, upon demand, all such fees (as the
same may be increased or decreased from time to time), and any additional
fees of a similar type or nature which may be imposed by Lender from time
to time, upon the occurrence of any Event.


 


Section 17.2.                  ATTORNEY’S FEES FOR ENFORCEMENT.
  (a) Borrower shall pay all reasonable legal fees incurred by
Lender in connection with (i) the preparation of the Note, this Security
Instrument and the Other Loan Documents and (ii) the items set forth in Section 17.1
above, and (b) Borrower shall pay to Lender on demand any and all
expenses, including reasonable legal expenses and attorneys’ fees, incurred or
paid by Lender in protecting its interest in the Property or Personal Property
and/or collecting any amount payable or in enforcing its rights hereunder with
respect to the Property or Personal Property, whether or not any legal
proceeding is commenced hereunder or thereunder and whether or not any default
or Event of Default shall have occurred and is continuing, together with
interest thereon at the Default Rate from the date of payment or incurring by
Lender until paid by Borrower.


 


ARTICLE 18 - DEFINITIONS


 


Section 18.1.                  GENERAL DEFINITIONS.   Unless
the context clearly indicates a contrary intent or unless otherwise
specifically provided herein, words used in this Security Instrument may be used interchangeably in
singular or plural form and the word “Borrower” shall mean
“each Borrower and any subsequent owner or owners of the Property or any part thereof
or any interest therein,” the word “Lender” shall mean “Lender and any
subsequent holder of the Note,”
the word “Note” shall mean “the Note and any other evidence of
indebtedness secured by this Security Instrument,” the word “person”
shall include an individual, corporation, partnership, trust,
unincorporated association, government, governmental authority, and any other
entity, the word “Property” shall
include any portion of the Property and any interest therein, and the phrases “attorneys’
fees,” “legal fees” and “counsel fees” shall
include any and all attorneys’, paralegal and law clerk fees and disbursements,
including, but not limited to, fees and disbursements at the pre-trial, trial and
appellate levels incurred or paid by Lender in protecting its interest in the
Property, the Leases and the Rents and enforcing its rights hereunder.


 


ARTICLE 19 - MISCELLANEOUS PROVISIONS


 


Section 19.1.                  NO ORAL CHANGE.   This
Security Instrument, the Note, and the Other Loan Documents and any provisions
hereof or thereof, may not be modified, amended, waived, extended,
changed, discharged or terminated orally or by any act or failure to act on the
part of Borrower or Lender, but only by an agreement in writing signed by
the party against whom enforcement of any modification, amendment, waiver,
extension, change, discharge or termination is sought.


 


Section 19.2.                  LIABILITY.   If
Borrower consists of more than one person, the obligations and liabilities of
each such person hereunder shall be joint and several. This Security Instrument
shall be binding upon and inure to the benefit of Borrower and Lender and their
respective successors and assigns forever.


 


47

















 


Section 19.3.                  INAPPLICABLE PROVISIONS.   If
any term, covenant or condition of the Note or this Security Instrument is held
to be invalid, illegal or unenforceable in any respect, the Note and this
Security Instrument shall be construed without such provision.


 


Section 19.4.                  HEADINGS, ETC.   The
headings and captions of various Sections of this Security Instrument are for
convenience of reference only and are not to be construed as defining or
limiting, in any way, the scope or intent of the provisions hereof.


 


Section 19.5.                  DUPLICATE ORIGINALS; COUNTERPARTS.
  This Security Instrument may be executed in any number of
duplicate originals and each duplicate original shall be deemed to be an
original. This Security Instrument may be executed in several counterparts,
each of which counterparts shall be deemed an original instrument and all of
which together shall constitute a single Security Instrument. The failure of
any party hereto to execute this Security Instrument, or any counterpart hereof,
shall not relieve the other signatories from their obligations hereunder.


 


Section 19.6.                  NUMBER AND GENDER.   Whenever
the context may require, any pronouns used herein shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns and pronouns shall include the plural and vice versa.


 


Section 19.7.                  SUBROGATION.   If
any or all of the proceeds of the Note have been used to extinguish, extend or
renew any indebtedness heretofore existing against the Property, then, to the
extent of the funds so used, Lender shall be subrogated to all of the rights,
claims, liens, titles, and interests existing against the Property heretofore
held by, or in favor of, the holder of such indebtedness and such former
rights, claims, liens, titles, and interests, if any, are not waived but rather
are continued in full force and effect in favor of Lender and are merged with
the lien and security interest created herein as cumulative security for the
repayment of the Debt, the performance and discharge of Borrower’s obligations
hereunder, under the Note and the Other Loan Documents and the performance and
discharge of the Other Obligations.


 


Section 19.8.                  ENTIRE AGREEMENT.   The
Note, this Security Instrument and the Other Loan Documents constitute the
entire understanding and agreement between Borrower and Lender with respect to
the transactions arising in connection with the Debt and supersede all prior
written or oral understandings and agreements between Borrower and Lender with
respect thereto. Borrower hereby acknowledges that, except as incorporated in
writing in the Note, this Security Instrument and the Other Loan Documents,
there are not, and were not, and no persons are or were authorized by Lender to
make, any representations, understandings, stipulations, agreements or
promises, oral or written, with respect to the transaction which is the subject
of the Note, this Security Instrument and the Other Loan Documents.


 


ARTICLE 20 - TRUSTEE


 


Trustee may resign by the giving of notice of such resignation in
writing or verbally to Lender. If Trustee shall die, resign, or become
disqualified from acting in the execution of this trust, or if, for any reason,
Lender shall prefer to appoint a substitute trustee or multiple substitute
trustees, or successive substitute trustees or successive multiple substitute
trustees, to act instead of the aforenamed Trustee, Lender shall have full
power to appoint a substitute trustee


 


48

















 


(or, if preferred,
multiple substitute trustees) in succession who shall succeed (and if multiple
substitute trustees are appointed, each of such multiple substitute trustees
shall succeed) to all the estates, rights, powers, and duties of the aforenamed
Trustee. Such appointment may be executed by any authorized agent of
Lender, and if such Lender be a corporation and such appointment be executed in
its behalf by any officer of such corporation, 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. Borrower hereby ratifies and confirms any and all acts
which the aforenamed Trustee, or his successor or successors in this trust,
shall do lawfully by virtue hereof. If multiple substitute Trustees are
appointed, each of such multiple substitute Trustees shall be empowered and
authorized to act alone without the necessity of the joinder of the other
multiple substitute trustees, whenever any action or undertaking of such
substitute trustees is requested or required under or pursuant to this Security
Instrument or applicable law. Any substitute Trustee appointed pursuant to any
of the provisions hereof shall, without any further act, deed, or conveyance,
become vested with all the estates, properties, rights, powers, and trusts of
its or his predecessor in the rights hereunder with like effect as if
originally named as Trustee herein; but nevertheless, upon the written request
of Lender or of the substitute Trustee, the Trustee ceasing to act shall
execute and deliver any instrument transferring to such substitute Trustee,
upon the trusts herein expressed, all the estates, properties, rights, powers,
and trusts of the Trustee so ceasing to act, and shall duly assign, transfer
and deliver any of the property and moneys held by such Trustee to the
substitute Trustee so appointed in the Trustee’s place. No fees or expenses
shall be payable to Trustee, except in connection with a foreclosure of the
Property or any part thereof or in connection with the release of the
Property following payment in full of the Debt.


 


ARTICLE 21 - SPECIAL STATE OF TEXAS PROVISIONS


 


Section 21.1.                  Principles Of Construction.   In
the event of any inconsistencies between the terms and provisions of this Article 21
and the rest of this Security Instrument, the terms and provisions of this Article 21
shall govern and control.


 


Section 21.2.                  Assignment Of Leases And Rents
Amended.   The following shall be inserted at the end of Section 1.2:


 


“The assignments set forth in this Section 1.2
are not intended to constitute payment to Lender or Trustee unless Borrower’s
license to collect Rents is terminated, and then only to the extent that the
Rents are actually received by Lender (as opposed to constituting a portion of
the voluntary payments of principal and interest on the Note) and are not used
for the operation or maintenance of the Property or for the payment of costs
and expenses in connection therewith, taxes, assessments, water charges, sewer
rents, and other charges levied, assessed or imposed against the Property,
insurance premiums, costs and expenses with respect to any litigation affecting
the Property, the leases, the concessions, and the rent, any wages and salaries
of employees, commissions of agents and reasonable attorneys’ fees, all in
accordance with the terms of the Loan Documents. It is further the intent of
Borrower and Lender that the Rents hereby absolutely assigned are no longer,
during the term of this Security Instrument, property of Borrower or property
of any estate of Borrower as defined in 11 U.S.C. § 541 and shall not
constitute


 


49

















 


collateral,
cash or otherwise, of Borrower. The term “Rents” as used herein shall mean the
gross rents without deduction or offsets of any kind.”


 


Section 21.3.                  Remedies Continued.   The
following Sections are hereby added to the end of Article 10:


 


“Section 10.3 Delivery upon Sale.   Upon
the completion of any sale or sales pursuant hereto, Trustee shall execute and
deliver to the accepted purchaser or purchasers a good and sufficient
instrument, or good and sufficient instruments, conveying, assigning and
transferring all estate, right, title and interest in and to the property and rights
sold by special warranty of title. Trustee is hereby irrevocably appointed the
true and lawful attorney of Borrower, in its name and stead, to make all
necessary conveyances, assignments, transfers and deliveries of the Property
and rights so sold and for that purpose Trustee may execute all necessary
instruments of conveyance, assignment and transfer, and may substitute one
or more persons with like power, Borrower hereby ratifying and confirming all
that its said attorney or such substitute or substitutes shall lawfully do by
virtue hereof. Any sale or sales made under or by virtue of this Section,
whether made under the power of sale herein granted or under or by virtue of
judicial proceedings or of a judgment or decree of foreclosure and sale, shall operate
to divest all the estate, right, title, interest, claim and demand whatsoever,
whether at law or in equity, of Borrower in and to the properties and rights so
sold, and shall be a perpetual bar both at law and in equity against Borrower
and against any and all persons claiming or who may claim the same, or any
part thereof from, through or under Borrower.


 


Section 10.4 Option to Bid.   Upon
any sale made under or by virtue of this Article 10, whether made under
the power of sale herein granted or under or by virtue of judicial proceedings
or of a judgment or decree of foreclosure and sale, Lender may bid for and
acquire the Property or any part thereof and in lieu of paying cash
therefor may make settlement for the purchase price by crediting upon the
Debt the net sales price after deducting therefrom the reasonable out-of-pocket
expenses of the sale and costs of the action and any other sums which Lender is
authorized to deduct under this Security Instrument.


 


Section 10.5 Remaining Liens.   No
recovery of any judgment by Lender and no levy of an execution under any
judgment upon the Property or upon any other property of Borrower shall affect
in any manner or to any extent the lien of this Security Instrument upon the
Property or any part thereof, or any liens, rights, powers or remedies of
Lender hereunder, but such liens, rights, powers and remedies of Lender shall
continue unimpaired as before.


 


Section 10.6 No Waiver of Remedies.   Lender
may resort to any remedies and the security given by the Note, this
Security Instrument or the Loan Documents in whole or in part, and in such
portions and in such order as determined by Lender’s sole discretion. No such
action shall in any way be considered a waiver of any rights, benefits or
remedies evidenced or provided by the Note, this Security Instrument or any of
the other Loan Documents. The failure of Lender to exercise any right, remedy
or option


 


50

















 


provided
in the Note, this Security Instrument or any of the other Loan Documents shall
not be deemed a waiver of such right, remedy or option or of any covenant or
obligation secured by the Note, this Security Instrument or the other Loan
Documents. No acceptance by Lender of any payment after the occurrence of any
Event of Default and no payment by Lender of any obligation for which Borrower
is liable hereunder shall be deemed to waive or cure any Event of Default with
respect to Borrower, or Borrower’s liability to pay such obligation, unless
simultaneously with such acceptance or payment by Lender, Lender waives in
writing the Event of Default cured thereby. No sale of all or any portion of
the Property, no forbearance on the part of Lender, and no extension of
time for the payment of the whole or any portion of the Debt or any other
indulgence given by Lender to Borrower, shall operate to release or in any
manner affect the interest of Lender in the remaining Property or the liability
of Borrower to pay the Debt. No waiver by Lender shall be effective unless it
is in writing and then only to the extent specifically stated. All reasonable
out-of-pocket costs and expenses of Lender in exercising its rights and
remedies under this Article (including reasonable attorneys’ fees and
disbursements to the extent permitted by law), shall be paid by Borrower within
five (5) business days after notice from Lender, and such costs and
expenses shall constitute a portion of the Debt and shall be secured by this
Security Instrument.


 


Section 10.7 No Waiver Continued.   The
interests and rights of Lender under the Note, this Security Instrument or in
any of the other Loan Documents shall not be impaired by any indulgence,
including (i) any renewal, extension or modification which Lender may grant
with respect to any of the Debt, (ii) any surrender, compromise, release,
renewal, extension, exchange or substitution which Lender may grant with
respect to the Property or any portion thereof; or (iii) any release or
indulgence granted to any maker, endorser, guarantor or surety of any of the
Debt.


 


Section 10.8 Foreclosure.   Upon
the occurrence and during the continuance of any Event of Default, Lender may request
Trustee to proceed with foreclosure under the power of sale which is hereby
conferred, such foreclosure to be accomplished in accordance with the following
provisions:


 


(a) Public Sale.   Trustee is
hereby authorized and empowered, and it shall be Trustee’s special duty, upon
such request of Lender, to sell the Property, or any part thereof, at
public auction to the highest bidder for cash, with or without having taken
possession of same. Any such sale (including notice thereof) shall comply with
the applicable requirements, at the time of the sale, of Section 51.002 of
the Texas Property Code or, if and to the extent such statute is not then in
force, with the applicable requirements, at the time of the sale, of the
successor statute or statutes, if any, governing sales of Texas real property
under powers of sale conferred by deeds of trust. If there is no statute in
force at the time of the sale governing sales of Texas real property under
powers of sale conferred by deeds of trust, such sale shall comply with
applicable law, at the time of the sale, governing sales of Texas real property
under powers of sale conferred by deeds of trust. Trustee or his successor or
substitute may appoint or delegate any one or more persons as agent to perform any
act or acts necessary or incident to any sale held by Trustee, including the
posting of notices, and the conduct of sale, but in the name and on behalf of
Trustee, his successor or substitute.


 


51

















 


(b) Intentionally
Deleted.


 


(c)                      Sale
Subject to Unmatured Debt.   In addition to the rights and powers
of sale granted under the preceding provisions of this subsection, if default
is made in the payment of any installment of the Debt and is not cured within
applicable cure periods, Lender may, at Lender’s option, at once or at any time
thereafter while any matured installment remains unpaid, without declaring the
entire Debt to be due and payable, orally or in writing direct Trustee to
enforce this Security Instrument and to sell the Property subject to such
unmatured Debt and to the rights, powers, liens, security interests, and
assignments securing or providing recourse for payment of such unmatured Debt,
in the same manner, all as provided
in the preceding provisions of this subsection. Sales made without maturing the
Debt may be made hereunder whenever there is a default in the payment of
any installment of the Debt, without exhausting the power of sale granted
hereby, and without affecting in any way the power of sale granted under this
subsection, the unmatured balance of the Debt or the rights, powers, liens,
security interests, and assignments securing or providing recourse for payment
of the Debt.


 


(d)                     Partial
Foreclosure.   Sale of a part of the Property shall not
exhaust the power of sale, but sales may be made from time to time until
the Debt is paid in full. It is intended by each of the foregoing provisions of
this subsection that Trustee may, after any request or direction by
Lender, sell not only the Land and the Improvements, but also the equipment and
other interests constituting a part of the Property or any part thereof,
along with the Land and the Improvements or any part thereof, as a unit
and as a part of a single sale, or may sell at any time or from time
to time any part or parts of the Property separately from the remainder of
the Property. It shall not be necessary to have present or to exhibit at
any sale any of the Property. Any sale of personal property made hereunder
shall be deemed to have been a public sale conducted in a commercially
reasonable manner if held contemporaneously with, or as part of, and upon
the same notice as required for the sale of real property under the power of
sale granted herein.


 


(e)                      Trustee’s
Deeds.   After any sale under this subsection, Trustee shall make
good and sufficient deeds, assignments, and other conveyances to the purchaser
or purchasers thereunder in the name of Borrower, conveying the Property or any
part thereof so sold to the purchaser or purchasers with special warranty
of title by Borrower. It is agreed that in any deeds, assignments or other
conveyances given by Trustee, absent fraud, willful misconduct or gross
negligence, any and all statements of fact or other recitals therein made as to
the identity of Lender, the occurrence or existence of any Event of Default,
the notice of intention to accelerate, or acceleration of, the maturity of the
Debt, the request to sell, notice of sale, time, place, terms and manner of
sale, and receipt, distribution, and application of the money realized
therefrom, the due and proper appointment of a substitute trustee, and without
being limited by the foregoing, any other act or thing having been duly done by
or on behalf of Lender or by or on behalf of Trustee, shall be taken by all
courts of law and equity as prima  facie evidence that such
statements or recitals state true, correct, and complete facts and are without
further question to be so accepted, and Borrower does hereby ratify and confirm
any and all acts that Trustee may lawfully do in the premises by virtue
hereof.”


 


52

















 


Section 21.4.                  Inapplicability of Credit Code.
  In no event shall the provisions of Chapter 346 of the Texas
Finance Code (which regulates certain revolving credit loan accounts and
revolving tri-party accounts) apply to the loan evidenced by the Loan Documents
and/or secured hereby.


 


Section 21.5.                  Entire Agreement.    THIS
SECURITY INSTRUMENT AND THE OTHER LOAN DOCUMENTS EMBODY THE FINAL, ENTIRE
AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF
AND THEREOF AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE
SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR
DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE
PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF.


 


Section 21.6.                  Notice of Indemnification.   BORROWER
ACKNOWLEDGES THAT THIS SECURITY INSTRUMENT PROVIDES FOR INDEMNIFICATION OF
LENDER AND TRUSTEE BY BORROWER PURSUANT TO ARTICLE 11. SUBJECT TO THE
TERMS THEREOF, IT IS SPECIFICALLY INTENDED BY BORROWER, LENDER, AND TRUSTEE
THAT ALL INDEMNITY OBLIGATIONS AND LIABILITIES ASSUMED BY BORROWER HEREUNDER BE
WITHOUT LIMIT AND WITHOUT REGARD TO THE CAUSE OR CAUSES THEREOF (INCLUDING
PREEXISTING CONDITIONS), STRICT LIABILITY, OR THE NEGLIGENCE OF ANY PARTY OR
PARTIES (INCLUDING LENDER AND TRUSTEE) WHETHER SUCH NEGLIGENCE BE SOLE, JOINT
OR CONCURRENT, OR PASSIVE. THE PARTIES SPECIFICALLY INTEND THAT LENDER AND
TRUSTEE ARE TO BE INDEMNIFIED AGAINST THEIR OWN NEGLIGENCE; PROVIDED, HOWEVER,
THAT NOTHING HEREIN SHALL BE CONSTRUED TO OBLIGATE BORROWER TO INDEMNIFY,
DEFEND AND HOLD HARMLESS LENDER OR TRUSTEE FROM AND AGAINST ANY OR ALL
LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, CLAIMS, ACTIONS, SUITS,
COSTS AND EXPENSES ENACTED AGAINST, IMPOSED ON OR INCURRED BY LENDER OR TRUSTEE
BY THEIR OWN WILLFUL MISCONDUCT OR GROSS NEGLIGENCE.


 


Section 21.7.                  Receipt of Security Instrument.
  THE BORROWER HEREBY DECLARES AND ACKNOWLEDGES THAT THE BORROWER HAS
RECEIVED, WITHOUT CHARGE, A TRUE COPY OF THIS SECURITY INSTRUMENT.


 


Section 21.8.                  Duties of Trustee.   It
shall be no part of the duty of the Trustee to see to any recording,
filing or registration of this Security Instrument or any other instrument in
addition or supplemental thereto, or to give any notice thereof, or to see to
the payment of or be under any duty in respect of any tax or assessment or
other governmental charge which may be levied or assessed on the Property,
or any part thereof, or against the Borrower, or to see to the performance
or observance by the Borrower of any of the covenants and agreements contained
herein. The Trustee shall not be responsible for the execution, acknowledgment
or validity of this Security Instrument or of any instrument in addition or
supplemental hereto or for the sufficiency of the security purported to be
created hereby, and makes no representation in respect


 


53

















 


thereof or in
respect of the rights of the Lender. The Trustee shall have the right to advise
with counsel upon any matters arising hereunder and shall be fully protected in
relying as to legal matters on the advice of counsel. The Trustee shall not
incur any personal liability hereunder except for his own gross negligence or
willful misconduct; and 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.


 


Section 21.9.                  Substitution of Trustee.   In case of the death, inability,
refusal or incapacity of the Trustee to act, or at the option of the Lender at
any time and without cause or notice, a successor or substitute trustee may be
named, constituted and appointed. Successor or substitute trustees may be
named, constituted and appointed without procuring the resignation of the
former trustee and without other formality than the execution and
acknowledgment by Lender of a written instrument (which instrument, if Lender
is a corporation, shall be executed by the President or any Vice President and
attested by the Secretary or any Assistant Secretary and without the necessity
of any action by the Board of Directors authorizing such appointment)
appointing and designating such successor or substitute trustee, whereupon such
successor or substitute trustee shall become vested with and succeed to all of
the rights, titles, privileges, powers and duties of the Trustee named herein.
Such right of appointment of a substitute or successor trustee shall exist as
often and whenever for any of said causes the original or successor or
substitute trustee cannot or will not act or has been removed as herein
provided.


 


[SIGNATURES APPEAR ON
FOLLOWING PAGE]


 


54

















 


IN WITNESS WHEREOF, THIS SECURITY INSTRUMENT
has been executed by Borrower the day and year first above written.


 


	
   

  	
   

  	
  BORROWER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  A-S-K
  41 ELDRIDGE–W. LITTLE YORK, L.P., a Texas

  
	
   

  	
   

  	
  limited
  partnership

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  A-S-K
  41, L.C., a Texas limited liability company,

  
	
   

  	
   

  	
   

  	
  its
  General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Steven D. Alvis

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Steven D. Alvis

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Member-Manager