Amended and Restated Deed of Trust and Security Agreement _____________________________ Trustor in favor of ____________________________________, Trustee for the Benefit of ________________________________, Beneficiary Dated: ___________, 20___ Premises: _______________________________________________ Prepared By and Record And Return To: ___________________________________________________________________________Attn: _____________________ To the Chancery Clerk of __________ County, ____________:The real property described herein is situated in:
i TABLE OF CONTENTS RECITALS..................................................................................................................................... 1GRANTING CLAUSES................................................................................................................ 1DEFINITIONS............................................................................................................................... 6ARTICLE I - COVENANTS AND AGREEMENTS.................................................................81.1Payment of Obligations. .......................................................................................... 81.2Payment of Taxes, Assessments, Etc. ...................................................................... 8A.Impositions ....................................................................................... 8B.Installments ...................................................................................... 9C.Receipts ............................................................................................ 9D.Evidence of Payment ....................................................................... 9E.Payment by Beneficiary ................................................................... 9F.Change in Law ................................................................................. 9G.Joint Assessment ............................................................................ 10H.Tax Service Fee .............................................................................. 101.3Insurance ................................................................................................................ 10A.Extended Coverage ........................................................................ 10B.Additional Coverage ...................................................................... 10C.Separate Insurance ......................................................................... 11D.Insurers; Policies ............................................................................ 11E.Beneficiary's Right to Provide Coverage....................................... 12F.Damage or Destruction .................................................................. 12G.Trustors Use of Proceeds ............................................................. 12H.Effects of Foreclosure on Policies and Claims ..............................151.4Escrow Deposits ..................................................................................................... 151.5Care and Use of Premises ...................................................................................... 16A.Maintenance and Repairs ............................................................... 16B.Standard of Repairs ........................................................................ 16C.Notice to Beneficiary ..................................................................... 16D.Removal of Equipment .................................................................. 16E.Compliance With Laws and Insurance ..........................................16F.Hazardous Materials. ............................................................................................. 17G.Compliance With Instruments of Record ......................................19H.Alteration of Secured Property ...................................................... 19I.Parking ........................................................................................... 19J.Entry on Secured Property ............................................................. 20K.No Consent to Alterations or Repairs ............................................ 20L.Mechanic's Liens ............................................................................ 20M.Use of Secured Property by Trustor ...............................................20N.Use of Secured Property by Public ................................................20
ii O.Management ................................................................................... 201.6Financial Information ............................................................................................. 20A.Audit.............................................................................................. 20B.Right to Inspect Books and Records ..............................................211.7Condemnation ........................................................................................................ 21A.Beneficiary's Right to Participate in Proceedings.......................... 21B.Application of Condemnation Award ............................................21C.Reimbursement of Costs. .............................................................. 22D.Existing Obligations.......................................................................22E.Application of Award .................................................................... 221.8Leases..................................................................................................................... 23A.Performance of Lessor's Covenants ............................................... 23B.Notice of Default ............................................................................ 23C.Representations Regarding Leases. . .............................................23D.Covenants Regarding Leases ......................................................... 24E.Application of Rents . .................................................................... 251.9 Assignment of Leases, Rents, Income, Profits and Cash Proceeds............................25A.Assignment; Discharge of Obligations ..........................................25B.Entry Onto Secured Property ......................................................... 25C.License to Manage Secured Property ............................................ 26D.Delivery of Assignments ................................................................ 26E.Indemnity ....................................................................................... 261.10Further Assurances ................................................................................................. 26A.General; Appointment of Attorney-in-Fact ...................................26B.Statement Regarding Obligations ..................................................27C.Additional Security Instruments.................................................... 27D.Security Agreement ....................................................................... 27E.Preservation of Trustor's Existence ................................................ 29F.Further Indemnities ........................................................................ 29G.Absence of Insurance ..................................................................... 291.11Further Sales or Encumbrances ............................................................................. 30A.Continuing Ownership and Management ......................................30B.Transfer or Encumbrance of Secured Property..............................30C.Acceleration of Obligations ........................................................... 31D.Wrap-Around Financing ................................................................ 311.12Expenses ................................................................................................................ 31A.Trustee's Costs and Expenses ........................................................ 31B.Protection of Security; Costs and Expenses ................................... 31ARTICLE II - REPRESENTATIONS AND WARRANTIES ................................................322.1Warranty of Title .................................................................................................... 322.2Ownership Of Improvements And Personal Property ...........................................332.3No Pending Material Litigation or Proceeding; No Hazardous Materials.............33A.Proceedings Affecting Trustor ....................................................... 33B.Proceedings Affecting Secured Property....................................... 33
iii C.No Hazardous Materials................................................................ 33D.No Litigation Regarding Hazardous Materials ..............................342.4Valid Organization, Good Standing and Qualification of Trustor .........................342.5Authorization; No Legal Restrictions on Performance ..........................................342.6Compliance With Laws .......................................................................................... 352.7Tax Status ............................................................................................................... 352.8Absence of Foreign or Enemy Status ..................................................................... 352.9Federal Reserve Board Regulations ....................................................................... 352.10Investment Company Act and Public Utility Holding Company Act ....................352.11Exempt Status of Transactions and Representations Relating Thereto................. 362.12Employee Benefit Plans ......................................................................................... 36ARTICLE III - DEFAULTS....................................................................................................... 373.1Events of Default................................................................................................... 37ARTICLE IV - REMEDIES....................................................................................................... 384.1Acceleration, Foreclosure, Etc ............................................................................... 38A.Foreclosure ..................................................................................... 38B.Entry............................................................................................... 41C.Collection of Rents, etc.................................................................. 41D.Receivership ................................................................................... 42E.Specific Performance ..................................................................... 424.2No Election of Remedies ....................................................................................... 424.3Beneficiary's Right to Release, etc. ....................................................................... 424.4Beneficiary's Right to Remedy Defaults, etc......................................................... 424.5Waivers .................................................................................................................. 434.6Prepayment Charge ................................................................................................ 43ARTICLE V - MISCELLANEOUS........................................................................................... 445.1Non-Waiver ............................................................................................................ 445.2Sole Discretion of Beneficiary ............................................................................... 455.3Recovery of Sums Required To Be Paid............................................................... 455.4Legal Tender .......................................................................................................... 455.5No Merger .............................................................................................................. 455.6Discontinuance of Actions ..................................................................................... 465.7Headings ................................................................................................................ 465.8Notice to Parties ..................................................................................................... 465.9Non-Recourse. ...................................................................................................... 475.10Successors and Assigns Included In Parties .......................................................... 485.11Number and Gender............................................................................................... 485.12Changes and Modifications .................................................................................... 485.13Applicable Law...................................................................................................... 485.14Invalid Provisions to Affect No Others ................................................................. 485.15Usury Savings Clause ............................................................................................ 485.16No Statute of Limitations....................................................................................... 49
iv 5.17Late Charges .......................................................................................................... 495.18Time of Essence ..................................................................................................... 495.19Waiver of Jury Trial ............................................................................................... 495.20Continuing Effectiveness ....................................................................................... 495.21 Amendment of Prior Deed of Trust....................................................................... 50
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AMENDED AND RESTATED DEED OF TRUST AND SECURITY AGREEMENT AMENDED AND RESTATED DEED OF TRUST AND SECURITY
AGREEMENT (this "Deed of Trust") made as of _______________, _____, by
____________________________ _________________, a
_______________________________, having an office at ______________
____________________________________ ("Trustor"), in favor of
_________________________ __________ ("Trustee"), whose address is
____________________________________________, Trustee for the benefit of
_________________________________________, a ________________ _______________,
having an office at ____________________________________ ("Beneficiary ").
RECITALS Trustor has executed and delivered to Beneficiary that certain Amended Promissory Note
(the "Note") dated the date hereof made by Trustor and payable to Beneficiary in the original
principal amount of ___________________________________($ ), lawful
money of the United States, the final payment of which, if not sooner paid, is due and payable
not later than _________________ , _____ the Maturity Date of said Note, which Promissory
Note is secured by this Deed of Trust and the terms, covenants and conditions of which
Promissory Note is hereby incorporated herein and made a part hereof;
NOW, THEREFORE, WITNESSETH, that in consideration of the sum of
_______________ ($ ) this day paid and other good and lawful consideration, the receipt
and sufficiency of which is hereby acknowledged and in order to secure the Obligations (as
hereinafter defined), Trustor hereby grants, conveys and warrants unto Trustee, in trust, with
power of sale (and grants to Beneficiary a security interest in), the property, both real and
personal, hereinafter described: GRANTING CLAUSESGRANTING CLAUSE ONE All that tract or parcel of land more particularly described in Exhibits
___________________ attached hereto and made a part hereof (the "Land"). GRANTING CLAUSE TWO TOGETHER WITH, any and all buildings and improvements now or hereafter located or
erected on the Land, including, without limitation, any and all machinery, apparatus, equipment
and fixtures now or hereafter attached to, or used or procured for use in connection with the
operation and/or maintenance of, any building, structure or other improvement (including,
2 without limitation, all refrigerators, shades, awnings, Venetian blinds, screens, screen doors,
storm doors and windows, stoves and ranges, curtain fixtures, partitions, attached floor coverings
and fixtures, apparatus, equipment or articles used to supply sprinkler protection and waste
removal, laundry equipment, furniture, furnishings, appliances, chattels, office equipment,
elevators, escalators, tanks, dynamos, motors, generators, switchboards, communications
equipment, electrical equipment, television and radio systems, heating, plumbing, lifting and
ventilating apparatus, air- cooling and air conditioning apparatus, gas and electric fixtures, fittings
and machinery and all other equipment of every kind and description, but excluding trade
fixtures and personal property of tenants under Leases (as hereinafter defined) which do not
become the property of Trustor upon expiration or termination of the term of such Leases), and
all renewals and replacements thereof and articles in substitution therefor used or procured for
use in the operation of any and all such buildings, structures and improvements, provided, in all
cases, that, whether or not any of the foregoing are attached to said buildings, structures or other
improvements in any manner, all such items shall be deemed to be fixtures, part of the real estate
and security for the Obligations (collectively, the "Improvements", and the Land and
Improvements are herein collectively called the "Premises ").
GRANTING CLAUSE THREE TOGETHER WITH, all easements, rights-of-way, strips and gores of land, streets, ways,
alleys, passages, sewer rights, waters, water courses, water rights and powers, and all estates,
rights, titles, interests, privileges, liberties, tenements, hereditaments, air rights, development
rights and credits and appurtenances of any nature whatsoever, in any way belonging, relating or
pertaining to, or above or below the Premises, including, but not limited to the following:(i)______________________ Agreement dated _____________, _____ and
recorded in Book ____ at page ____, as amended by Amendment No. __
to the ________________________ Agreement dated ______________,
_____ and recorded in Book ____ at page ____; further amended by
Amendment No. __ and recorded in Book ____ at page ____, said
__________ ___________ Agreement having been amended by
agreement dated ______ ___________, 2___ and recorded in Book ____
at page ____;(ii) Water Line Easement from _______________________ to
______________ ______________________________ dated
_____________, _____ and recorded in Book ____ at page ____, and
corrected in Book ____ at page ____;(iii) Sanitary Sewer Easement A from ______________________________
to ______________ ______________________________ dated
____________, _____ and recorded in Book ____ at page ____, and
corrected in Book ____ at page ____; and in Book ____ at page ____;
3 (iv)Sanitary Sewer Easement B from ______________________________
to ______________ ______________________________ dated
____________, _____ and recorded in Book ____ at page ____, and
corrected in Book ____ at page ____; and in Book ____ at page ____;(v)Temporary Utility Easement from _______________________ to
___________________________________________ dated
____________, _____ and recorded in Book ____ at page ____, and
corrected in Book ____ at page ____;(vi) Access, Utility, and Landscape Easement by
________________________ ________ to
_________________________________ recorded in Book ____ at page
____ and as amended in Book ____ at page ____;(vii) Amendment to __________________ Agreement dated ______________,
______ and recorded in Book ____ at page ____; (viii) Amendment to __________________ Agreement dated ______________,
_____ and recorded in Book ____ at page ____; and,(ix) Access Easements ___ contained in ______________ recorded in Book
____ at page ____ and described in Exhibit _____ attached hereto.Said Book and Page references are to the land records of the Chancery Clerk of _________
County, ____________. GRANTING CLAUSE FOUR TOGETHER WITH, all right, title and interest of Trustor, now owned or hereafter
acquired, in and to any land lying within the right- of-way of any street, opened or proposed,
adjoining the Premises, and any and all sidewalks, alleys and strips and gores of land adjacent to
or used in connection with the Premises. GRANTING CLAUSE FIVE TOGETHER WITH, all right, title and interest of Trustor in and to all options to
purchase or lease the Premises or any portion thereof or interest therein, and any greater estate in
the Premises owned or hereafter acquired by Trustor.
4 GRANTING CLAUSE SIX TOGETHER WITH, all accounts receivable, insurance policies, licenses, franchises,
permits, service contracts and contract rights (including but not limited to, Trustors interest in
any and all leases, tenant contracts, rental agreements, and construction contracts now or
hereafter effecting the Premises), management agreements, trade names, trademarks, service
marks, logos, general intangibles, interests, estates and other claims, both in law and in equity,
which Trustor now has or may hereafter acquire in the Premises. GRANTING CLAUSE SEVEN TOGETHER WITH, all the estate, interest, right, title and other claim or demand which
Trustor now has or may hereafter acquire in any and all awards or payments made for the taking
by eminent domain, or by any proceeding or purchase in lieu thereof, of the whole or any part of
the Premises, including, without limitation, any awards resulting from a change or grade of
streets and awards for severance damages together, in all cases, with any interest thereon. GRANTING CLAUSE EIGHT TOGETHER WITH, all proceeds of and any unearned premiums on any insurance
policies covering the Premises, including, without limitation, the right to receive and apply the
proceeds of any insurance or judgments, or settlements made in lieu thereof, for damage to the
Premises. GRANTING CLAUSE NINE TOGETHER WITH, all the estate, interest, right, title and other claim or demand which
Trustor now has or may hereafter acquire against anyone with respect to any damage to all or
any part of the Premises, including, without limitation, damage arising or resulting from any
defect in or with respect to the design or construction of all or any part of the Improvements and
any damage resulting therefrom . GRANTING CLAUSE TEN TOGETHER WITH, all deposits or other security or advance payments, including rental
payments, made by or on behalf of Trustor to others in connection with the ownership or
operation of all or any part of the Premises including, without limitation, any such deposits or
payments made with respect to (i) insurance policies, (ii) utility service, (iii) cleaning,
maintenance, repair or similar services, (iv) refuse removal or sewer service, (v) rental of
equipment, if any, used by or on behalf of Trustor, and (vi) parking or similar services or rights.
5 GRANTING CLAUSE ELEVEN TOGETHER WITH, all wastewater, fresh water and other utilities capacity and facilities
(the " Utilities Capacity") available or allocable to the Premises or dedicated to or reserved for
them pursuant to any system, program, contract or other arrangement with any public or private
utility, and all related or incidental licenses, rights and interests, whether considered to be real,
personal or mixed property, including the right and authority to transfer or relinquish any or all
such rights and the right to any credit, refund, reimbursement or rebate for utilities facilities
construction or installation or for any reservation fee, standby fee or capital recovery charge
promised, provided or paid for by Trustor or any of Trustor's predecessors or affiliates, to the full
extent now allocated or allocable to the Premises, plus all additional Utilities Capacity, if any,
not dedicated or reserved to the Premises but which is now or hereafter owned or controlled by
Trustor, to the full extent that such additional Utilities Capacity is necessary to allow
development, marketing and use of the Premises for use as an office building.
GRANTING CLAUSE TWELVE TOGETHER WITH, all remainders, reversions, leasehold estate, other estate, right, title,
interest and other claim or demand of Trustor in and to all leases or subleases covering the
Premises or any portion thereof now or hereafter existing or entered into, and all right, title and
interest of Trustor thereunder, including, without limitation, all cash or security deposits,
advance rentals and deposits or payments of similar nature. GRANTING CLAUSE THIRTEEN TOGETHER WITH, absolutely and presently, all rents, issues, profits, cash proceeds,
royalties, income and other benefits, including, without limitation, benefits accruing from all
present and future oil, gas and mineral leases and agreements derived from the Premises
(collectively, the " Rents"), subject to the right, power and authority hereinafter given to Trustor
as a licensee to collect and apply such Rents prior to the occurrence of a default hereunder. The
Premises, Personal Property (as hereinafter defined) and rights therein, hereinabove described or
mentioned are hereinafter collectively referred to as the "Secured Property". In the event of any
express inconsistency between the provisions of this Granting Clause and Section 1.9 regarding
any Rents, the provisions of Section 1.9, to the extent valid, enforceable and in effect, shall
govern and control. To the extent any of the Secured Property are not deemed real estate under
the laws of the State of ____________ they shall be deemed personal property ("Personal
Property") and this Deed of Trust is and shall be deemed to be a Security Agreement creating a
security interest in favor of Beneficiary as Secured Party in the Personal Property under the
Uniform Commercial Code (the " Code") of the State of ____________.
TO HAVE AND TO HOLD the Secured Property, together with every right, privilege,
hereditament and appurtenance belonging or appertaining to it, unto the Trustee, his successors
or substitutes in the trusts established under this Deed of Trust and his or their assigns, forever.
Trustor warrants that Trustor is the lawful owner of the Secured Property with good right and
6 authority to mortgage and convey it and that the Secured Property is free and clear of all liens,
claims and encumbrances except as set forth in the Beneficiary policy of title insurance provided
to Beneficiary in connection with this matter. Trustor hereby binds Trustor and Trustor's
successors and assigns to forever WARRANT and DEFEND the Secured Property and every
part of it unto the Trustee, his successors or substitutes in the trusts established under this Deed
of Trust, and his or their assigns, against the claims and demands of every person whomsoever
lawfully claiming or to claim it or any part of it, except for liens, claims and encumbrances set
forth in Beneficiary s policy of title insurance issued by
__________________________________ as Policy No. _________. This Deed of Trust shall
terminate and be of no further force or effect (and shall be released on Trustor's written request
and at Trustor's cost and expense) upon full payment of the Obligations as hereinafter defined
and complete performance of all of the obligations of Trustor pursuant to the Loan Documents.This Deed of Trust is made and intended to secure the payment of:(a)the Obligations (as hereinafter defined), which include, without limitation, the
obligations evidenced by the Note, in accordance with the terms thereof;(b)advances by Beneficiary or any transferee of Beneficiary made to pay taxes on the
Secured Property, to pay premiums on insurance on the Secured Property, to repair, maintain or
preserve the Secured Property, or to complete improvements on the Secured Property (whether or
not Trustor is at that time the owner of the Secured Property);(c)any and all other Obligations now owing or which may hereafter be owing by Trustor
to Beneficiary, however incurred, direct or indirect; and(d)any and all renewals, substitutions, modifications and extensions of the Note or any
other Obligations secured hereby, either in whole or in part. DEFINITIONS As used in this Deed of Trust, the following terms shall have the meanings specified below
(such meanings to be equally applicable to both the singular and plural forms of the terms defined):"Assignment" shall mean the Assignment of Leases, Rents, Income and Cash Collateral
dated the date hereof from Trustor, as assignor, to Beneficiary, as assignee, relating to the Land.
"Code" shall have the meaning set forth in Granting Clause Thirteen hereof."Condemnation Proceedings " shall have the meaning set forth in subsection 1.7A hereof."Employee Benefit Plans" shall mean any employee benefit plans maintained at any time by
Trustor.
7 "ERISA" shall mean Internal Revenue Code Section 4975 or the Employee Retirement
Income Security Act of 1974 and the regulations thereunder.
"Event of Default" shall have the meaning set forth in Section 3.1 hereof."Governmental Agency" shall mean any and all governmental departments, courts,
commissions, boards, regulatory authorities, bureaus, agencies or instrumentalities, domestic,
foreign, federal, state or municipal whether now or hereafter in existence.
"Hazardous Material" shall mean and include any oil, flammable explosives, radioactive
materials, asbestos in any form, underground fuel tanks, hazardous, toxic or dangerous waste,
chemical, substance or related material, urea formaldehyde foam insulation, polychlorinated
biphenyls, or radon gas including, but not limited to, substances defined as such in (or for purposes
of) or which may give rise to liability under any Hazardous Materials Laws.
"Hazardous Materials Laws" shall mean and include (i) the Comprehensive Environmental
Response, Compensation, and Liability Act, as amended, 42 U.S.C. Section 9601, et seq .; (ii) the
Hazardous Materials Transportation Act, as amended, 49 U.S.C. Section 1801, et seq.; (iii) the
Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901, et seq.; (iv) the
Clean Water Act of 1977, 33 U.S.C. Sections 1251, et seq.; (v) the Federal Safe Drinking Water Act,
42 U.S.C. Section 300(f), et seq .; (vi) the Federal Toxic Substances Control Act, 15 U.S.C. Sections
2601, et seq .; the Federal Clean Air Act, 42. U.S.C. Section 7401 et seq.; the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. Section 136, et seq.; the ____________ Water Code; the
____________ Health and Safety Code; ____________ Natural Resources Code; statewide Rules
for Oil, Gas and Geothermal Operations (promulgated by the Railroad Commission of
____________); and all regulations issued pursuant thereto and any so-called "Superfund" or
"Superlien" law, or any other federal, state or local statute, law, ordinance, code, rule, regulation,
order or decree regulating, relating to, or imposing liability or standards of conduct concerning, any
hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect.
"Hazardous Materials Claims " shall have the meaning set forth in subsection 1.5F(4) hereof."Impositions" shall have the meaning set forth in subsection 1.2A hereof."Improvements" shall have the meaning set forth in Granting Clause Two hereof."Increased Rate" shall mean the rate of five percent (5%) per annum greater than the interest
rate set forth in the Note.
"Land" shall have the meaning set forth in Granting Clause One hereof."Lease" shall have the meaning set forth in subsection 1.8A hereof."Lessee" shall have the meaning set forth in subsection 1.8A hereof.
8 "Loan Documents " shall mean the Note, this Deed of Trust, the Assignment, the U.C.C.
Financing Statements, the Tenant Refitting Escrow Agreement, the Environmental Indemnity
Agreement, and any and all other documents now or hereafter executed by Trustor or any other
person or party to evidence or secure the payment of amounts due under, or the performance or
discharge of duties arising from, the Obligations.
"Beneficiary's Architect" shall mean an architect or registered engineer approved by
Beneficiary.
"Obligations" shall mean (i) the principal of, interest on, and all other amounts, payments,
and premiums due under or secured by the Note and other Loan Documents; (ii) such additional
sums, with interest thereon, as may hereafter be borrowed by Trustor from Beneficiary, its successor
or assigns, when evidenced by a promissory note which, by its terms, is secured hereby (it being
contemplated that such future indebtedness may be incurred); (iii) any and all other indebtedness,
obligations, and liabilities of any kind of Trustor to Beneficiary relating to the Secured Property,
now or hereafter existing, absolute or contingent, joint and/or several, secured or unsecured, due or
not due, arising by operation of law or otherwise, or direct or indirect; (iv) any judgment entered by
a court of competent jurisdiction enforcing or requiring payment of the foregoing items described in
this paragraph; and (v) any and all of the covenants, warranties, representations, and other
obligations (other than to repay the amount due under the Note) made or undertaken by Trustor or
others to Beneficiary, Trustee, or others as set forth in the Loan Documents.
"Personal Property" shall have the meaning set forth in Granting Clause Thirteen hereof."Premises" shall have the meaning set forth in Granting Clause Two hereof."Rents" shall have the meaning set forth in Granting Clause Thirteen hereof."Secured Property" shall have the meaning set forth in Granting Clause Thirteen hereof."Transfer" shall have the meaning set forth in subsection 1.11B hereof. ARTICLE II - COVENANTS AND AGREEMENTS Trustor hereby covenants and agrees as follows:2.1Payment of Obligations. Trustor shall pay when due and shall perform the
Obligations as provided herein.
2.2Payment of Taxes, Assessments, Etc.A.Impositions. Trustor shall pay when due and payable, before any fine,
penalty, interest or cost for the non-payment thereof may be added thereto, all taxes, assessments,
9 water and sewer rents, rates and charges, transit taxes, county ad valorem taxes, city ad valorem
taxes, charges for public utilities, excises, levies, vault and all other license and permit fees and other
governmental charges, general and special, ordinary and extraordinary, unforeseen and foreseen, of
any kind and nature whatsoever (including penalties, interest, costs and charges accrued or
accumulated thereon) which at any time may be assessed, levied, confirmed, imposed upon or
become due and payable out of or in respect to, or become a lien on, the Secured Property or any
part thereof or any appurtenance thereto, as the case may be (all such taxes, assessments, water and
sewer rents, rates and charges, transit taxes, county ad valorem taxes, city ad valorem taxes, charges
for public utilities, excises, levies, vault and all other license and permit fees and other governmental
charges including all interest, penalties, costs and charges accrued or accumulated thereon, are
herein collectively called "Impositions", and individually, an "Imposition").B.Installments . Notwithstanding anything to the contrary contained in
subsection 1.2A above, if by law any Impositions may at the option of the taxpayer be paid in
installments (whether or not interest shall accrue on the unpaid balance of such Impositions), Trustor
may exercise the option to pay the same (and any accrued interest on the unpaid balance of such
Impositions) in installments and, in such event, shall pay such installments as the same respectively
become due and before any fine, penalty, further interest or cost may be added thereto.
C. Receipts. Trustor, upon request of Beneficiary, will furnish to Beneficiary
within five (5) days before the date when any Imposition would become delinquent, official receipts
of the appropriate taxing authority, or other evidence reasonably satisfactory to Beneficiary
evidencing the payment thereof.
D. Evidence of Payment. The certificate, advice or bill issued by the appropriate
official (designated by law either to make or issue the same or to receive payment of any Imposition)
of non-payment of an Imposition shall be prima facie evidence that such Imposition is due and
unpaid at the time of the making or issuance of such certificate, advice or bill. Trustor agrees to pay
Beneficiary, on demand, all charges, costs and expenses of every kind incurred by Beneficiary in
connection with obtaining evidence satisfactory to Beneficiary that the payment of all Impositions is
current and that there is no Imposition due and owing or which has become or given rise to a lien on
the Secured Property or any part thereof or any appurtenance thereto.
E.Payment by Beneficiary. If Trustor shall fail to pay any Imposition in
accordance with the provisions of this Section 1.2, Beneficiary may, at its option (but shall be under
no obligation to do so), pay such Imposition and Trustor will repay to Beneficiary on demand any
amount so paid by Beneficiary, with interest thereon at the Increased Rate to the date of repayment
and all such amounts shall be secured by this Deed of Trust. In no event shall the Increased Rate be
greater than the highest interest rate permissible by law.
F.Change in Law . In the event of the passage after the date of this Deed of
Trust of any law of the State of ____________ deducting the Obligations from the value of the
Secured Property or any part thereof for the purpose of taxation or resulting in any lien thereon, or
changing in any way the laws now in force for the taxation of this Deed of Trust or the Obligations
for state or local purposes, or the manner of the operation of any such taxes so as to affect the
10 interest of Beneficiary, then, and in such event, Trustor shall bear and pay the full amount of such
taxes, provided that if for any reason payment by Trustor of any such new or additional taxes would
be unlawful or if the payment thereof would constitute usury or render the loan secured hereby or the
Obligations wholly or partially usurious under any of the terms or provisions of the Note, this Deed
of Trust or otherwise, Beneficiary may, at its option, declare the whole sum secured by this Deed of
Trust with interest thereon to be immediately due and payable, or Beneficiary may, at its option, pay
that amount or portion of such taxes as renders the loan or Obligations unlawful or usurious, in
which event Trustor shall concurrently therewith pay the remaining lawful and non-usurious portion
or balance of said taxes.G. Joint Assessment. Trustor covenants and agrees not to suffer, permit or
initiate the joint assessment of the Premises and Personal Property, or any other procedure whereby
the lien of the personal property taxes shall be assessed or levied or charged to the Secured Property
together with real property taxes.
H.Tax Service Fee. Trustor covenants and agrees to pay to Beneficiary on
demand all charges, costs and expenses of every kind including, without limitation, a tax service
search fee or charge, incurred by Beneficiary at any time or times during the term of this Deed of
Trust in connection with obtaining evidence satisfactory to Beneficiary that the payment of any and
all real estate, ad valorem, and other taxes and/or assessments is current and that there are no such
taxes or assessments due or owing which have become or given rise to a lien on the Premises or any
part thereof.
2.3 Insurance.A.Extended Coverage. Trustor, at its sole cost and expense, shall keep the
Personal Property and the Improvements insured during the term of this Deed of Trust against loss or
damage by fire and against loss or damage by other risks now embraced by "Extended Coverage," so
called, in amounts, forms and substance satisfactory to Beneficiary, but in no event shall the amounts
be less than the greater of (1) 100% of the full replacement cost of the Personal Property and the
Improvements, including work performed for tenants, without deduction for depreciation; (2) the
amounts required to prevent any insured from becoming a co-insurer; (3) the amounts required under
any Lease; or (4) $______________________.[amended loan amount]
B. Additional Coverage. Trustor, at its sole cost and expense, shall at all times
also maintain:
(1) Personal injury and property damage liability insurance against claims
for bodily injury, death or property damage, occurring on, in or about the Secured Property or in or
about the adjoining streets, sidewalks and passageways; such insurance to afford protection, during
the term of this Deed of Trust, in amounts and in form and substance satisfactory to Beneficiary;(2)Rent or business interruption insurance in an amount not less than the
greater of $____________________ or one year's aggregate rentals (including, without limitation,
parking rentals, minimum rentals, escalation charges, percentage rents, based on sales projections
11 acceptable to Beneficiary, and other additional rentals, and any other amounts payable by tenants or
other occupants under Leases or otherwise) payable by all tenants and other occupants at the
Premises, which amount shall be increased from time to time upon the leasing of space at the
Premises or upon the increase in aggregate rentals (including the other items referred to above).
Trustor hereby assigns to Beneficiary the proceeds of such insurance to be held by Beneficiary as
security for the payment of all sums due in connection with the Indebtedness and this Deed of Trust
as hereinafter provided;(3)Such other insurance in such amounts and in form and substance as
may from time to time be required by Beneficiary against other insurable hazards, including, but not
limited to, malicious mischief, vandalism, windstorm, earthquake, war, nuclear reaction or
radioactive contamination, which at the time are commonly insured against and generally available
in the case of premises similarly situated, due regard being or to be given to the height and type of
Improvement, its location, construction, use and occupancy;(4)If the Improvements are located in a flood hazard area, flood insurance
on the Improvements in an amount equal to the lesser of "full replacement cost" thereof or the
maximum amount of insurance obtainable; and (5)Insurance against loss or damage from (a) leakage of sprinkler systems
and (b) explosion of steam boilers, air conditioning equipment, pressure vessels or similar apparatus
now or hereafter installed in or on the Premises in such amounts as Beneficiary shall from time to
time require. C. Separate Insurance. Trustor shall not carry separate insurance, concurrent in
kind or forms, and contributing, in the event of loss, with any insurance required hereunder. Trustor
may, however, effect for its own account any insurance not required under the provisions of this
Deed of Trust but any such insurance effected by Trustor on the Secured Property whether or not
required under this Section 1.3 shall be for the mutual benefit of Trustor and Beneficiary, as their
respective interests may appear, and shall be subject to all other provisions of this Section 1.3.
D. Insurers; Policies. All insurance provided for in this Section 1.3 shall be
effected under valid and enforceable policies issued by financially responsible insurers authorized to
do business in the State of ____________, which policies and insurers are approved in writing by
Beneficiary. The proceeds of all such policies shall be deposited with and held by Beneficiary. All
casualty insurance policies and rent insurance policies shall be payable to Beneficiary pursuant to a
standard non-contributory first mortgage endorsement in favor of Beneficiary, and such policies
shall contain a waiver of subrogation endorsement, all in form and content satisfactory to
Beneficiary. All original policies shall contain a provision that such policies will not be canceled or
materially amended, which term shall include any reduction in the scope or limits of coverage,
without at least thirty (30) days' prior written notice to Beneficiary. Not less than thirty (30) days
prior to the expiration dates of the policies theretofore furnished pursuant to this Deed of Trust,
originals of the policies bearing notations evidencing the payment of premiums or accompanied by
other evidence satisfactory to Beneficiary of such payment, shall be delivered by Trustor to
12 Beneficiary. In the event of a change in ownership of the Secured Property immediate notice thereof
shall be delivered to all insurers by Trustor.E.Beneficiary's Right to Provide Coverage . If Trustor fails to provide, maintain,
keep in force or deliver and furnish to Beneficiary the original policies of insurance required by this
Section 1.3, Beneficiary may, at its sole option, procure such insurance and Trustor will reimburse
Beneficiary for all premiums thereon promptly upon demand by Beneficiary with interest thereon at
the Increased Rate to the date of reimbursement and all such amounts shall be secured by this Deed
of Trust.
F. Damage or Destruction. After the happening of any casualty to the Secured
Property or any part thereof, Trustor shall give prompt written notice thereof to Beneficiary and the
following shall apply:
(1) In the event of any damage or destruction of all or any part of the
Secured Property, all proceeds of insurance shall be payable to Beneficiary, or Beneficiarys
designee, and Trustor hereby authorizes and directs any affected insurance company to make
payment of such proceeds directly to Beneficiary or Beneficiarys designee. Insurance proceeds
held by Beneficiary may be commingled with other funds in Beneficiary's possession, shall
constitute additional security for the Obligations and Trustor shall not be entitled to the payment of
interest thereon. Beneficiary is hereby authorized and empowered by Trustor to settle, adjust or
compromise any claims for loss, damage or destruction under any policy or policies of insurance.(2)In the event of any such damage or destruction, subject to subsection
1.3G, Beneficiary shall have the option in its sole and absolute discretion and without regard to the
adequacy of its security hereunder, of applying all or part of the insurance proceeds (a) to the
Obligations, whether or not then due, in such order as Beneficiary shall determine (which may be in
the inverse order of maturity), or (b) to the repair or restoration of the Secured Property, or (c) to
cure any then current default under any of the Loan Documents, or (d) to reimburse the Beneficiary
for its costs and expenses in connection with the recovery of such insurance proceeds, or (e) any
combination of the foregoing.
(3) Nothing herein contained shall be deemed to excuse Trustor from
repairing or maintaining the Secured Property as provided in Section 1.5 hereof or restoring all
damage or destruction to the Secured Property, regardless of whether there are insurance proceeds
available or whether such proceeds are sufficient in amount, and the application or release by
Beneficiary of any insurance proceeds shall not cure or waive any Event of Default (as hereinafter
defined) or notice of default under this Deed of Trust or invalidate any act done pursuant to such
notice.
13 G.Trustors Use of Proceeds.(1)Notwithstanding any provision herein to the contrary, in the event of
any destruction of not more than ___% of the gross leasable area contained in the Premises and not
more than ___% of the parking spaces by fire or other casualty (except for any destruction which
occurs during the last _________ ( ) months of the loan term), the insurance proceeds shall be
made available to Trustor for repair and restoration after deducting and payment to Beneficiary of
Beneficiary's costs of collection and disbursement of such proceeds, provided:(a) The proceeds are deposited with Beneficiary;(b) No Event of Default shall have occurred and be continuing under the
terms of any of the Loan Documents;(c) The insurance carrier does not deny liability to any named insured;(d)If Beneficiary so requests, Beneficiary is furnished with an estimate of
the cost of restoration accompanied by a certificate of Beneficiary's
Architect as to such costs;(e) The value of the Secured Property so restored or rebuilt shall be at
least equal to what was originally erected;(f) Trustor furnishes Beneficiary with evidence reasonably satisfactory to
Beneficiary that all Improvements so restored and/or reconstructed and
their use shall fully comply with all (i) applicable easements,
covenants, conditions, restrictions or other private agreements
affecting the Premises, (ii) zoning and building laws, ordinances and
regulations and (iii) all other applicable federal, state and municipal
laws, regulations and requirements;(g) If the estimated cost of reconstruction exceeds the proceeds available,
at Beneficiary's option, Trustor shall (i) furnish a bond of completion
or provide such other evidence satisfactory to Beneficiary of Trustor's
ability to meet such excess costs or (ii) deposit with Beneficiary
additional funds equal to such excess;(h)Beneficiary shall have received notice of destruction caused by such
fire or other hazard from the Trustor within twenty (20) days from the
date thereof, which notice shall state the date of such fire or other
hazard and a request to Beneficiary to make the insurance proceeds
available to Trustor;(i)The aggregate monthly net income under all Leases remaining in full
force and effect with respect to the Secured Property after restoration
14 shall be in an amount sufficient to pay the monthly installments of
principal and interest required to be paid upon the Obligations as well
as all escrows for taxes and insurance as estimated by Beneficiary
hereunder;(j) Adequate rental loss insurance proceeds are available and the
insurance carrier does not deny liability to any named insured;(k) Beneficiary shall have determined that such damage or destruction is
fully reparable prior to the Maturity Date (as defined herein) and(l)Trustor shall pay all costs and expenses incurred by Beneficiary,
including, but not limited to, outside legal fees, title insurance costs,
third-party disbursement fees, third-party engineering reports and
inspections deemed necessary by Beneficiary. (2)Disbursement of the proceeds during the course of reconstruction shall be
upon the certification of Beneficiary's Architect as to the cost of the work done and the conformity
of the work to plans and specifications approved by Beneficiary, and evidence supplied by a title
insurance company acceptable to Beneficiary that there are no liens arising out of the reconstruction
or otherwise. Notwithstanding the above, a portion of the proceeds may be released prior to the
commencement of reconstruction to pay for items approved by Beneficiary in its sole discretion.
Disbursements shall be made within ____ ( ) business days after a request by Trustor. No payment
made prior to the final completion of work shall exceed _________ ( %) of the value of the work
performed from time to time, and at all times the undisbursed balance of said proceeds remaining
with the Beneficiary must be at least sufficient to pay for the cost of completion of the work free and
clear of liens. Final payment shall be upon a certification of Beneficiary's Architect as to completion
substantially in accordance with plans and specifications approved by Beneficiary. (3)At such time as Beneficiary's Architect shall certify to Beneficiary that the
damaged or destroyed portion of the Secured Property has been put in a state of repair equivalent to
or better than that existing prior to the date of such fire or other casualty, the work shall be deemed
completed. With Beneficiary's prior written consent, which may be granted or withheld in
Beneficiary's sole discretion, any certification required to be made by an architect or registered
engineer may be made by a reputable contractor approved by Beneficiary. The balance of the
insurance proceeds so deposited with Beneficiary after full disbursement in accordance with
subsection 1.3G, at the sole option of Beneficiary, shall be either (a) returned to Trustor, it being
understood that such obligation or reimbursement shall not exceed the amount of insurance proceeds
for such restoration and/or repair, or (b) applied to the payment of the Obligations in such order as
Beneficiary shall determine (which may be in inverse order of maturity) and whether or not then due
and payable.
(4) In all cases where any destruction to the Secured Property by fire or other
casualty occurs during the last _____ ( ) months of the loan term or, in Beneficiary's sole
judgment, Trustor is not proceeding with the repair or restoration in a manner that would entitle
15 Trustor to have the proceeds disbursed to it, or for any other reason Beneficiary determines in its
sole judgment that Trustor shall not be entitled to such proceeds pursuant to the terms of this Deed of
Trust, Beneficiary shall have the options set forth in subsection 1.3F(2) above. (5)Under no circumstances shall Beneficiary become personally liable for the
fulfillment of the terms, covenants and conditions contained in any of the Leases or obligated to take
any action to restore the Secured Property.H. Effects of Foreclosure on Policies and Claims. Foreclosure of this Deed of
Trust shall automatically constitute foreclosure upon all policies of insurance insuring any part of or
risk to the Secured Property and all claims thereunder. The successful bidder or bidders for the
Secured Property at foreclosure, as their respective interests may appear, shall automatically accede
to all of Trustor's rights in, under and to such policies and all claims, and such bidder(s) shall be
named as insured(s) on request, whether or not the trustee's or substitute trustee's deed, bill of sale or
other instrument of conveyance to any such successful bidder mentions insurance. Unless
Beneficiary or Beneficiary's representative reserves at the foreclosure sale the right to collect any
uncollected insurance proceeds recoverable for events occurring before foreclosure (in which event
the successful bidder at the sale, if not Beneficiary, shall have no interest in such proceeds and
Beneficiary shall apply them, if and when collected, to the Obligations in such order and manner as
Beneficiary shall then elect and remit any remaining balance to Trustor or to such other person or
entity as is legally entitled to them), all proceeds of all such insurance which are not so reserved by
Beneficiary at the foreclosure sale and are not actually received by Beneficiary until after foreclosure
shall be the property of the successful bidder or bidders at foreclosure, as their interests may appear,
and Trustor shall have no interest in them and shall receive no credit for them.
2.4Escrow Deposits. To further secure the payment of the Impositions and the premiums
for the insurance required by this Deed of Trust, Trustor will deposit with Beneficiary, or
Beneficiary's designee, on the due date of each monthly installment of principal and interest under
the Note, a sum which shall be equal to one-twelfth (1/12) of the annual total of the Impositions and
such insurance premiums or such greater Monthly amount as may be required to pay the next
installment of such Impositions and insurance premiums, as estimated by Beneficiary, one month
before such Impositions and insurance premiums shall become due and payable. Such deposits shall
be held by Beneficiary, or Beneficiary's designee, without obligation for the payment of interest
thereon to Trustor, free of any liens or claims on the part of creditors of Trustor and as a part of the
security of Beneficiary, and shall be used by Beneficiary, or its designee, to pay current Impositions
and insurance premiums as the same shall become payable. Said deposits shall not be, nor be
deemed to be, trust funds but may be commingled with general funds of Beneficiary, or its designee.
If at any time and for any reason Beneficiary determines that said deposits are insufficient to pay the
Impositions and insurance premiums in full as they become payable, Trustor will deposit with
Beneficiary, or Beneficiary's designee, within ten (10) days after demand therefor, such additional
sum or sums as may be required in order for Beneficiary, or its designee, to pay such Impositions
and insurance premiums in full. It shall be the responsibility of Trustor to furnish bills to
Beneficiary in sufficient time for Beneficiary to pay the Impositions and insurance premiums before
any penalty attaches and before the policies lapse. Upon any default in the provisions of this Deed
of Trust or the Note, Beneficiary may, at its option, in its sole and absolute discretion and without
16 regard to the adequacy of its security hereunder, apply any such deposits to the payment of the
Obligations in such manner as it may elect. Transfer of legal title to the Secured Property, if
consented to by the Beneficiary shall automatically transfer to the new owner the beneficial interest
in all sums deposited under the provisions of this Section 1.4.2.5Care and Use of Premises.A.Maintenance and Repairs . Trustor, at its sole cost and expense, will take good
care of the Secured Property and the sidewalks and curbs adjoining the Premises and will keep the
same in good order and condition, and make all necessary repairs thereto, interior and exterior,
structural and nonstructural, ordinary and extraordinary, unforeseen and foreseen, and will not
commit or suffer to be committed any waste of the Secured Property and will not do or suffer to be
done anything which will increase the risk of fire or other hazard to the Secured Property or any part
thereof.
B. Standard of Repairs . The necessity for and adequacy of repairs to the
Improvements pursuant to subsection 1.5A shall be measured by the standard which is appropriate
for a first-class office building and related facilities of similar construction and class, provided that
Trustor shall in any event make all repairs necessary to avoid any structural damage to the
Improvements and to keep the Improvements in a proper condition for their intended use. When
used in this Section 1.5, the terms "repair" and "repairs" shall include all necessary renewals and
replacements. All repairs made by Trustor shall be made with new first-class materials and in a
good, substantial and workmanlike manner and shall be equal or better in quality and class to the
original work.
C. Notice to Beneficiary. Trustor will notify Beneficiary promptly of any
damage to the Secured Property in excess of $_________________ ($ ).
D.Removal of Equipment. Trustor shall have the right, at any time and from
time to time, to remove and dispose of equipment which may have become obsolete or unfit for use
or which is no longer useful in the operation of the Secured Property. Trustor will promptly replace
any such equipment so disposed of or removed with other equipment of a value and serviceability
equal to or greater than the original value and serviceability of the equipment so disposed of or
removed, free of superior title, liens and claims; except that, if by reasons of technological or other
developments in the operation and maintenance of buildings of the general character of the
Improvements, no replacement of the building equipment so removed or disposed of is necessary or
desirable in the proper operation or maintenance of said Improvements, Trustor shall not be required
to replace same. All such replacements or additional equipment shall be covered by this Deed of
Trust and the security interest herein granted.
E. Compliance With Laws and Insurance . Trustor shall promptly comply with
all present and future laws, ordinances, orders, rules, regulations and requirements of all federal,
state, county and municipal governments, courts, departments, commissions, boards and officers,
any national or local Board of Fire Underwriters, including, without limitation, all zoning, building
code, environmental protection and equal employment opportunity statutes, ordinances, regulations,
17 orders and restrictions, foreseen or unforeseen, ordinary as well as extraordinary, which may be
applicable to the Secured Property and the sidewalks and curbs adjoining the Secured Property or to
the use or manner of use of the Secured Property whether or not such law, ordinance, order, rule,
regulation or requirement shall necessitate structural changes or improvements. Trustor shall not
bring or keep any article up
