Exhibit 10.12
Recording requested by
and after recording, return to:
XXXXXXXXXX, XXXXXXXXX, HOUSTON & XXXXX, P.C.:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
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CALIFORNIA
Riverside County
LEASEHOLD DEED OF TRUST
ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
Dated: As of October 31, 2006
Maximum Amount Unpaid
Principal Indebtedness of
$65,000,000
FROM
FMI INTERNATIONAL LLC having an office at:
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
the Grantor,
FIRST AMERICAN TITLE INSURANCE COMPANY
the Trustee,
FOR THE BENEFIT OF
FORTRESS CREDIT CORP., as Agent having an office at:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
the Beneficiary.
NOTICE: THE OBLIGATIONS SECURED HEREBY PROVIDE FOR
PERIODIC INCREASES AND/OR DECREASES
IN THE APPLICABLE INTEREST RATE.
Location of Premises:
3178 and 0000 Xxxxxx Xxxxx
Xxxxxx xx Xxxxxxxxx
Xxxx xx: Xxxx Xxxx
Xxxxx xx: Xxxxxxxxxx
LEASEHOLD DEED OF TRUST
ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
THIS LEASEHOLD DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
(this "Leasehold Deed of Trust") made as of October 31, 2006 by FMI
INTERNATIONAL LLC, a Delaware limited liability company, having an office at 000
Xxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (the "Grantor"), to FIRST AMERICAN
TITLE INSURANCE COMPANY (the "Trustee"), of Orange County, California, having an
office at 0 Xxxxx Xxxxxxxx Xxx, Xxxxx Xxx, Xxxxxxxxxx 00000, for the benefit of
FORTRESS CREDIT CORP., as Agent for the Lenders, having an office at 0000 Xxxxxx
xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, for itself and as agent for the
lenders now or hereafter named in the Loan Agreement, as such term is
hereinafter defined (the "Beneficiary"). All capitalized terms used but not
defined in this Leasehold Deed of Trust shall have the meanings ascribed to them
in the Loan Agreement.
WITNESSETH, pursuant to the Loan and Security Agreement dated as of even
date herewith (as amended, consolidated, restated, modified, extended or
supplemented from time to time, the "Loan Agreement") by and among Grantor, as a
Borrower, the other Borrowers and Guarantors, the Lenders and Beneficiary as a
Lender, and as Agent for the Lenders, the Lenders have agreed to make and the
Grantor has agreed to accept Loans consisting of (a) Revolving Loans in the
principal amount of up to $10,000,000 advanced pursuant to the Loan Agreement
and (b) Team Loans in the aggregate principal amount of $55,000,000 advanced
pursuant to the Loan Agreement. The Loans shall mature on October 31, 2011.
WITNESSETH, that to secure the payment of the principal sum of SIXTY-FIVE
MILLION DOLLARS ($65,000,000) lawful money of the United States to be paid
according to the Loan Agreement, which is by this reference made a part hereof
as said Loan Agreement may be hereafter modified, amended, extended, renewed or
substituted for, and any and all sums, amounts and expenses paid hereunder or
thereunder by the Beneficiary and/or any Lender according to the terms hereof
and all other obligations and liabilities of the Grantor under this Leasehold
Deed of Trust or the Loan Agreement together with all interest on the said
indebtedness, obligations, liabilities, sums, amounts and expenses and any and
all other obligations and liabilities now due and owing or which may hereafter
be or become due and owing by the Grantor to the Lenders (all of the aforesaid
are hereinafter collectively, the "Indebtedness"), the Grantor hereby mortgages,
grants, bargains, sells, warrants, conveys, alienates, remises, releases,
assigns, sets over and confirms to the Trustee and irrevocably grants to the
Trustee, in trust, with power of sale and right of entry and possession, all of
Grantor's estate, right, title and interest in, to and under, and does hereby
irrevocably grant to Beneficiary, for its benefit and the ratable benefit of the
Lenders, a security interest in:
I. All that certain leasehold estate (the "Leasehold Estate")
created by and the right, title and interest of the Grantor in, to and under
those certain leases (individually, a "Lease" and collectively, the "Leases")
more particularly described on Schedule A hereof under which Leases the
respective landlords (the "Landlords") demised and leased, for the term provided
therein, the following described premises:
All that certain lot, piece or parcel of land particularly described in
SCHEDULE A annexed hereto and made a part hereof (the "Land") upon which the
demised premises more particularly described in SCHEDULE B annexed hereto and
made a part hereof are located (the "Demised Premises") (the Land, together with
the Demised Premises and the Leasehold Estate hereinafter sometimes,
collectively, the "Real Property");
Together with the appurtenances, including, but not limited to, renewal
and option rights, and all the estate and rights of the Grantor of, in and to
the Real Property under and by virtue of the Leases;
Together with all right, title and interest of the Grantor, in and to: (i)
all modifications, extensions and renewals of the Leases and in and to all
rights to renew or extend the term of the Leases; (ii) all credits to and
deposits of (other than security deposits made by sublessees) the Granter under
the Leases; and (iii) all other options, privileges and rights granted and
demised to the Grantor under the Leases;
Together with all the right or privilege of the Grantor to terminate,
cancel, surrender, merge, xxxxxx, renew or amend the Leases; and
II. Subject to the terms and conditions of the Leases, all of the
right, title and interest of the Grantor, if any, in and to the buildings and
improvements (hereinafter, collectively, together with all building equipment,
the "Improvements") now or hereafter located on the Real Property and all of its
right, title and interest, if any, in and to the streets and roads abutting the
Real Property to the center lines thereof and strips and gores within or
adjoining the Real Property, the air space and right to use said air space above
the Real Property, all rights of ingress and egress by motor vehicles to parking
facilities on or within the Real Property, all easements now or hereafter
affecting the Real Property or the Improvements, all royalties and all rights
appertaining to the use and enjoyment of the Real Property or the Improvements,
including, without limitation, alley, drainage, crop, timber, agricultural,
horticultural, mineral, water, oil and gas rights; and
III. Subject to the terms and conditions of the Leases, all of the
right, title and interest of the Grantor, if any, in and to all fixtures and
articles of personal property and all appurtenances and additions thereto and
substitutions or replacements thereof, now or hereafter attached to, or
contained in, the Real Property and/or the Improvements or placed on any part
thereof though not attached thereto, including, but not limited to, all screens,
awnings, shades, blinds, curtains, draperies, carpets, rugs, furniture and
furnishings, heating, lighting, plumbing, ventilating, air conditioning,
refrigerating, incinerator and/or compacting and elevator plants, stoves,
ranges, vacuum cleaning systems, call systems, sprinkler systems and other fire
prevention and extinguishing apparatus and materials, motors, machinery, pipes,
appliances, equipment, fittings and fixtures, and the trade name, good will and
books and records relating to the business operated on the Real Property and/or
the Improvements. Without limiting the foregoing, the Grantor hereby grants to
the Beneficiary, for its benefit and the ratable benefit of the Lenders, a
security interest in all of its present and future "equipment" and "general
intangibles" (as said quoted terms are defined in the Uniform Commercial Code of
the State wherein the Real Property and/or the Improvements are located) and the
Beneficiary shall have, in addition to all rights and remedies provided herein,
and in any other agreements, commitments
and undertakings made by the Grantor to the Beneficiary, all of the rights and
remedies of a "secured party" under the said Uniform Commercial Code. To the
extent permitted under applicable law, this Leasehold Deed of Trust shall be
deemed to be a "security agreement" (as defined in the aforesaid Uniform
Commercial Code). If the lien of this Leasehold Deed of Trust is subject to a
security interest covering any such personal property, then all of the right,
title and interest of the Grantor in and to any and all such property is hereby
assigned to the Beneficiary, for its benefit and the ratable benefit of the
Lenders, together with the benefits of all deposits and payments now or
hereafter made thereon by the Grantor, and
IV. Subject to the terms and conditions. of the Leases, all of the
right, title and interest of the Grantor in and to all leases, lettings and
licenses of the Real Property, the Improvements and/or any other property or
rights encumbered or conveyed hereby, or any part thereof, (other than the
Leases) now or hereafter entered into and all right, title and interest of the
Grantor thereunder, including, without limitation, cash and securities deposited
thereunder, the right to receive and collect the rents, issues and profits
payable thereunder and the right to enforce, whether by action at law or in
equity or by other means, all, provisions, covenants and agreements thereof; and
V. Subject to the terms and conditions of the Leases, all right,
title and interest of the Grantor in and to all unearned premiums, accrued,
accruing. or to accrue under insurance policies now or hereafter obtained by the
Grantor and all proceeds of the conversion, voluntary or involuntary, of the
Real Property, the Improvements and/or any other property or rights encumbered
or conveyed hereby, or any part thereof, into cash or liquidated claims,
including, without limitation, proceeds of hazard and title insurance and all
awards and compensation heretofore and hereafter made to the present and all
subsequent owners of the Real Property, the Improvements and/or any other
property or rights encumbered or conveyed hereby by any governmental or other
lawful authority for the taking by eminent domain, condemnation or otherwise, of
all or any part of the Real Property, the Improvements and/or any other property
or rights encumbered or conveyed hereby or any easement therein, including, but
not limited to, awards for any change of grade of streets; and
VI. Subject to the terms and conditions of the Leases, all right,
title and interest of the Grantor in and to all extensions, improvements,
betterments, renewals, substitutions and replacements of and all additions and
appurtenances to the Real Property, the Improvements and/or any other property
or rights encumbered or conveyed hereby, hereafter acquired by or released to
the Grantor or constructed, assembled or placed by the Grantor on the Real
Property, the Improvements and/or any other property or rights encumbered or
conveyed hereby, and all conversions of the security constituted thereby which,
immediately upon such acquisition, release, construction, assembling, placement
or conversion as the case may be, and in each such case without any further
mortgage, conveyance, assignment or other act by the Grantor, shall become
subject to the lien of this Leasehold Deed of Trust as fully and completely, and
with the same effect, as though now owned by the Grantor and specifically
described herein (the Real Property and the Improvements, together with the
fixtures and other property, rights, privileges and interests encumbered or
conveyed hereby hereinafter, collectively, the "Premises").
TO HAVE AND TO HOLD the Premises unto the Trustee and its heirs,
successors and assigns until the Indebtedness is paid in full.
IN TRUST, to secure the payment in full to the Beneficiary and the Lenders
of the Indebtedness, and the performance of all covenants and agreements in the
Loan Agreement and this Leasehold Deed of Trust, whereupon this Leasehold Deed
of Trust shall cease and be void and the Premises shall be released at the cost
of the Grantor.
AND the Grantor covenants and agrees with the Beneficiary and the Trustee
as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF THE GRANTOR
The Grantor represents and warrants to the best of its knowledge to the
Beneficiary as follows:
Section 1.1 LEASES. (i) The Grantor has a good and marketable title
to the Leasehold Estate created by each of the Leases and is the owner of a
valid and subsisting interest as lessee under each of the Leases subject to no
lien, exception, charge or other encumbrance, except for any easements,
covenants or restrictions of record; (ii) each of the Leases is in full force
and effect and has not been assigned, modified, amended, cancelled, surrendered,
terminated, supplemented or extended in any way and except as may be disclosed
by Landlord in any document delivered by Landlord to Lender in connection with
the Loan; (iii) each of the Leases represents the entire agreement between the
parties thereto as to the leasing of the Premises; (iv) to the best of Grantor's
knowledge there is no default which has occurred and is continuing under any of
the Leases nor has any act, omission and/or event occurred which, with notice,
the passage of time, or both, would constitute a default under any of the Leases
by either the lessor or the lessee thereunder; (v) all rental payments and other
charges under the Leases which are due and owing from the lessee thereunder as
of the date of the execution and delivery of this Leasehold Deed of Trust have
been paid in full, including, but not limited to, the security deposits
specified therein; (vi) this Leasehold Deed of Trust is and will remain a legal,
valid, binding and enforceable first lien on and prior security interest in the
Premises subject only to the exceptions referred to above; (vii) the Grantor has
full right, power and authority to mortgage the Leases to the Beneficiary
pursuant hereto subject to the terms and conditions of the Leases; (viii) the
Grantor knows of no adverse claim to the title and/or possession of the Grantor
or the Landlords; and (ix) no fire or casualty has affected the Real Property
and the Grantor knows of no actual or proposed condemnation or eminent domain
proceeding or settlement in lieu thereof which may affect same.
Section 1.2 LEASEHOLD DEED OF TRUST AUTHORIZED. The execution and
delivery of this Leasehold Deed of Trust has been duly authorized by the Grantor
and there is no provision in the certificate of limited liability company or
operating agreement of the Grantor requiring further consent for such action by
any other entity or person. The Grantor is duly organized, validly existing and
is in good standing under the laws of the state of its formation, and has (i)
all required licenses, authorizations, registrations, permits and/or approvals
and (ii) full power and authority to own its properties and carry on its
business as presently conducted
and the execution and delivery by it of, and performance of its obligations
under, this Leasehold Deed of Trust will not result in the Grantor being in
default under any provision of its certificate of limited liability company or
operating agreement or of any deed of trust, mortgage, lease, credit or other
agreement to which it is a party or which affects it or its interest in the
Premises, or any part thereof
Section 1.3 FLOOD INSURANCE STATUS. The Premises are not located in
an area identified by the Secretary of Housing and Urban Development as an area
having special flood hazards pursuant to the terms of the National Flood
Insurance Act of 1968, or the Flood Disaster Protection Act of 1973, as same may
have been amended to date.
Section 1.4 OPERATION OF THE PREMISES (i) To the best of Grantor's
knowledge, the Grantor has all required certificates, licenses, authorizations,
registrations, permits and/or approvals required for the operation of the
Premises or any part thereof, and all required environmental permits, all of
which as of the date of the signing hereof are in full force and effect and, to
the knowledge of Grantor, not subject to any revocation, amendment, release,
suspension, forfeiture or the like, (ii) to the best of Grantor's knowledge, the
present use and/or occupancy of the Premises and/or Improvements does not
conflict with or violate any such certificate, license, authorization,
registration, permit and/or approval, or any applicable law, ordinance, statute,
rule, order, requirement or regulation and (iii) the Grantor has delivered to
the Beneficiary, prior to the signing hereof duplicate originals or
appropriately certified copies of all such certificates, licenses,
authorizations, registrations, permits and/or approvals.
ARTICLE II
COVENANTS OF THE GRANTOR
Section 2.1 PAYMENT OF THE INDEBTEDNESS. The Grantor will punctually
pay the Indebtedness in same day funds as provided herein, the Loan Agreement,
all in the coin and currency of the United States of America which is legal
tender for the payment of public and private debts.
Section 2.2 MAINTENANCE OF THE IMPROVEMENTS.
(i) The Grantor shall maintain the Improvements in good
repair, subject to ordinary wear and tear, damage by casualty, taking by
condemnation or eminent domain, shall comply with the requirements of any
governmental authority claiming jurisdiction over the Premises within the lesser
of thirty (30) days after an order (an "Order") containing such requirement has
been issued by any such authority, (unless such requirement cannot be complied
with within such thirty (30) day period, in which event the Grantor shall have
such longer period as necessary to cause compliance, PROVIDED HOWEVER, that the
Grantor shall promptly commence and diligently prosecute to completion such
compliance and provided, further, that such period shall not exceed the time
required pursuant to the terms of such Order) or the time required pursuant to
the terms of such Order and shall permit the Beneficiary to enter upon the
Improvements and inspect the Improvements at all reasonable hours and without
prior notice. The Grantor shall not, without the prior written consent of the
Beneficiary, threaten, commit, permit or suffer to occur any waste or except as
may be permitted under the terms of the Loan
Agreement, the material alteration, demolition or removal of the Improvements or
any part thereof; PROVIDED, HOWEVER, that fixtures and articles of personal
property owned by the Grantor may be removed from the Improvements if the
Grantor concurrently therewith replaces same with equivalent items which do not
reduce the value of the Premises or the Improvements, free of any lien, charge
or claim superior to the lien and/or security interest created hereby.
(ii) Nothing in this Section 2.2 shall require the compliance
by the Grantor with any Order so long as (a) the failure so to do shall not be a
default or event of default under any other deed of trust, mortgage or security
agreement affecting the Premises, any part thereof or interest therein, (b) the
failure so to do shall not result in the voiding, rescission or invalidation of
the certificate of occupancy or any other license, certificate, permit or
registration in respect of the Premises, (c) the failure so to do shall not
prevent, hinder or unreasonably interfere with the lawful use and occupancy of
the entirety of the Improvements for their present use and occupancy, (d) the
failure so to do shall not void or invalidate any insurance maintained by the
Grantor in respect of the Premises, or result in an increase of any premium
therefor or a decrease in any coverage provided thereby, and (e) the Grantor in
good faith and at its own expense shall contest the Order or the validity
thereof by appropriate legal proceedings, which proceedings must operate to
prevent (1) the occurrence of any of the events described in the preceding
clauses (a) through (d) of this paragraph (ii) and (2) the collection or other
realization on any sums due or payable as a consequence of the Order, the sale
of any lien arising in respect of the Order, and/or the sale or forfeiture of
the Premises, any part thereof or interest therein, or the sale of any lien
connected therewith; provided that during such contest the Grantor shall, at the
option of the Beneficiary provide security reasonably satisfactory to the
Beneficiary assuring the discharge of the Grantor's obligations hereunder and of
any interest, charge, fine, penalty, fee or expense arising from or incurred as
a result of such contest; and provided further if at any time compliance with
any obligation imposed upon the Grantor by the Order shall become necessary to
prevent (1) the occurrence of any of the events described in clauses (a) through
(d) of this paragraph (ii) or (2) the delivery of a deed conveying the Premises
or any portion thereof or interest therein because of noncompliance, or the sale
of a lien in connection therewith, or (3) the imposition of any penalty, fine,
charge, fee, cost or expense on the Beneficiary, then the Grantor shall comply
with the Order in sufficient time to prevent the occurrence of any such events,
the delivery of such deed or the sale of such lien, or the imposition of such
penalty, fine, charge, fee, cost or expense on the Beneficiary.
Section 2.3 INSURANCE COVERAGE. Subject to the insurance
requirements of tenant under the Leases and in accordance with the terms and
conditions of the Loan Agreement, the Grantor shall keep the Improvements
insured against (i) damage by fire and the other hazards covered by the standard
extended coverage all risk insurance policy, and (ii) damage by vandalism,
malicious mischief; and such other hazards against which the Beneficiary shall
require insurance, and each policy of insurance required pursuant to this
SECTION 2.3 shall be endorsed to name the Beneficiary as a mortgagee-loss payee
thereunder, as its interest may appear, with loss payable to the Beneficiary
without contribution or assessment, under a standard non-contributory mortgagee
clause. All insurance policies and endorsements required pursuant to this
SECTION 2.3 shall be fully paid for, nonassessable and contain such provisions
(including, without limitation, inflation guard and replacement cost
endorsements) and expiration dates and shall be in such form and amounts and
issued by such insurance companies with a rating of "A" or better as established
by Best's Rating Guide (or an equivalent rating with such other
publication of a similar nature as shall be in current use) or such other
companies, as shall be approved by the Beneficiary. The Grantor shall
additionally keep the Improvements insured against loss by flood if the Premises
are located in an area identified by the Secretary of Housing and Urban
Development as an area having special flood hazards and in which the Flood
Insurance Act of 1968 and the Flood Disaster Protection Act of 1973, as the same
may have been or may hereafter be amended or modified (and any successor acts
thereto) in an amount at least equal to the outstanding Indebtedness or the
maximum limit of coverage available with respect to the Improvements under said
Act, whichever is less, and in a company or companies to be approved by the
Beneficiary. In all events and without a modification of or limitation on the
foregoing the Grantor will assign and deliver the policy or policies (or true
copies thereof) of all such insurance to the Beneficiary, which policy or
policies shall have endorsed thereon a standard non-contributory mortgagee
clause (PROVIDED, HOWEVER, the Beneficiary shall have thirty (30) days notice
from the insurer prior to the expiration, cancellation or termination (for any
reason whatsoever) of any policy) in the name of the Beneficiary, so and in such
manner and form that the Beneficiary and its successors and assigns shall at all
times have and hold said policy or policies as collateral and further security
for the payment of the Indebtedness until the full payment of the Indebtedness.
Insurance required hereunder may be carried by the Grantor pursuant to blanket
policies, provided that all other requirements herein set forth are satisfied
and that the underlying policy in respect of the Premises is assigned and
delivered to the Beneficiary as herein required. In the event that the Grantor
fails to keep the Premises insured in compliance with the Loan Agreement or THIS
SECTION 2.3, the Beneficiary may but shall NOT be obligated to, obtain insurance
and pay the premiums therefor and the Grantor shall, on demand, reimburse the
Beneficiary for all sums, advances and expenses incurred in connection therewith
and such sums, advances and expenses shall bear interest at the Post-Default
Rate until reimbursed. The Grantor shall deliver copies of all original policies
to the Beneficiary together with the endorsements thereto required hereunder
subject to the requirements under the Leases. The proceeds of insurance paid on
account of any damage or destruction to the Premises or any part thereof shall
be paid over to the Beneficiary to be applied as hereinafter provided.
Notwithstanding anything to the contrary contained herein or in any provision of
applicable law, the proceeds of insurance policies corning into the possession
of the Beneficiary shall not be deemed trust funds and the Beneficiary shall be
entitled to dispose of such proceeds as hereinafter provided in SECTION 2.4.
Section 2.4 INSURANCE; PROCEEDS. The Grantor shall give the
Beneficiary prompt notice of any loss covered by insurance and the Beneficiary
shall have the right to join the Grantor in adjusting any loss in excess of
$20,000. Subject to and in accordance with the terms of the Loan Agreement, the
Beneficiary shall have the option, in its sole discretion, subject to the
requirements under the Leases, to apply any insurance proceeds it may receive
pursuant to SECTION 2.3, or otherwise, to the payment of the Indebtedness or to
allow all or a portion of such proceeds to be used for the restoration of the
Improvements, subject, however, to the provisions of SECTION 2.6 hereof. In the
event any such insurance proceeds shall be used to reduce the Indebtedness, the
same shall be applied by the Beneficiary, after the deduction therefrom and
repayment to the Beneficiary of any and all costs incurred by the Beneficiary in
the recovery thereof; in any manner it shall designate, including but not
limited to, the application of such proceeds to the then unpaid installments of
the principal balance of the Indebtedness in the inverse order of their
maturity, such that the regular payments, if any, under the Loan Agreement shall
not be reduced or altered in any manner. In the event that the Beneficiary
elects to allow the
use of such proceeds for the restoration of the Improvements, then such use of
the proceeds shall be governed as hereinafter provided in SECTION 2.6.
Section 2.5 RESTORATION OF THE IMPROVEMENTS. In the event of damage
or destruction of the Improvements, or any part thereof as a result of casualty,
condemnation, taking or other cause, the Grantor shall give prompt written
notice thereof to the Beneficiary and (except in the event of impossibility of
restoration or repair in the event of condemnation or other taking) subject to
the requirements under the Leases, provided that the Beneficiary shall make
available to the Grantor the insurance proceeds (if any) (or in the event of
condemnation or taking, the award (if any) arising out of such condemnation or
taking) recovered by the Beneficiary as herein provided, the Grantor shall
promptly commence and diligently continue to perform the repair, restoration and
rebuilding of that portion of the Improvements so damaged or destroyed
(hereinafter, the "Work") so as to restore the Improvements in full compliance
with all legal requirements and so that the Improvements shall be at least equal
in value and general utility as they were prior to the damage or destruction,
and if the Work to be done is structural or if the cost of the Work, as
estimated by the Beneficiary, shall exceed $20,000 (hereinafter, collectively,
"Major Work"), the Grantor shall, prior to the commencement of the Major Work,
furnish to the Beneficiary for its approval: (i) complete plans and
specifications for the Major Work, with satisfactory evidence of the approval
thereof (a) by all governmental authorities whose approval is required, (b) by
all parties to or having an interest in the leases, if any, of any portion of
the Premises whose approval is required, and (c) by an architect reasonably
satisfactory to the Beneficiary (hereinafter, the "Architect") and which shall
be accompanied by the Architect's signed estimate, bearing the Architect's seal,
of the entire cost of completing the Major Work; and (ii) certified or
photostatic copies of all permits and approvals required by law in connection
with the commencement of the Work and as and when obtainable, the conduct of the
Work. Beneficiary shall have thirty (30) days following receipt of the foregoing
within which to approve or disapprove the Major Work, and if Beneficiary fails
to respond such Major Work shall be deemed approved.
The Grantor shall not commence any of the Major Work until the
Grantor shall have complied with the applicable requirements referred to in this
Section, and after commencing the Major Work the Grantor shall perform the Major
Work diligently and in good faith in accordance with the plans and
specifications referred to in this SECTION 2.5, if applicable.
Section 2.6 RESTORATION; ADVANCES. In the event that the Beneficiary
is required, or in its sole discretion, elects to apply insurance proceeds to
the restoration of the Improvements, the insurance proceeds (or, in the case of
condemnation or taking, the award therefor in the event that the Beneficiary, in
its sole discretion, shall elect to apply such award to repair and restoration)
recovered by the Beneficiary on account of damage or destruction to the
Improvements (if any) less the cost, if any, to the Beneficiary of such recovery
and of paying out such proceeds (including reasonable attorneys' fees and costs
allocable to inspecting the Work and the plans and specifications therefor),
shall be applied by the Beneficiary to the payment of the cost of the Work and
shall be paid out from time to time to the Grantor and/or, at the Beneficiary's
option exercised from time to time, directly to the contractor, subcontractors,
materialmen, laborers, engineers, architects and other persons rendering
services or materials for the Work, as said Work progresses except as otherwise
hereinafter provided, but subject to the following conditions, any of which the
Beneficiary may waive:
(i) if the Work to be done is Major Work, as determined by the
Beneficiary, the Architect shall be in charge of the Work;
(ii) each request for payment shall be made on seven (7) days
prior notice to the Beneficiary and shall be accompanied by (a) a certificate of
the authorized officer of the Grantor, as applicable, specifying the party to
whom (and for the account of which) such payment is to be made and (b) a
certificate of the Architect if one be required under SECTION 2.5 above,
otherwise by a certificate of the authorized officer of the Grantor, as
applicable, stating (a) that all of the Work completed has been done in
compliance with the approved plans and specifications, if any be required under
said SECTION 2.5, and in accordance with all provisions of law; (b) the sum
requested is justly required to reimburse the Grantor for payments by the
Grantor to, or is justly due to, the contractor, subcontractors, materialmen,
laborers, engineers, architects or other persons rendering services or materials
for the Work (giving a brief description of such services and materials), and
that when added to all sums, if any, previously paid out by the Beneficiary does
not exceed the value of the Work done to the date of such certificate, and (c)
that the amount of such proceeds remaining in the hands of the Beneficiary,
together with any sums made available by the Grantor will be sufficient on
completion of the Work to pay for the same in full (giving in such reasonable
detail as the Beneficiary may require an estimate of the cost of such
completion);
(iii) each request shall be accompanied by waivers of liens,
or if unavailable, xxxx xxxxx, reasonably satisfactory to the Beneficiary
covering that part of the Work previously paid for, if any, and by a search
prepared by the title insurance company insuring the lien of this Leasehold Deed
of Trust or by such other title company or licensed abstractor satisfactory to
the Beneficiary or by other evidence satisfactory to the Beneficiary, that there
has not been filed with respect to the Premises any mechanic's lien or other
lien or instrument for the retention of title in respect of any part of the Work
not discharged of record and that there exist no encumbrances on or affecting
the Premises (or any part thereof) other than encumbrances, if any, existing as
of the date hereof and which have been approved by the Beneficiary;
(iv) no event shall have occurred and be continuing which with
the passage of time or the giving of notice, or both, would constitute an Event
of Default;
(v) the request for any payment after the Work has been
completed shall be accompanied by certified copies of all certificates, permits,
licenses, waivers and/or other documents required by law (or pursuant to any
agreement binding upon the Grantor or affecting the Premises or any part
thereof) to render occupancy of the Premises legal; and
(vi) the Work can be completed not later than one (1) month
prior to the Termination Date; and
(vii) the Grantor, prior to the commencement of the Work,
shall have deposited with the Beneficiary an amount equal to the difference
between the cost of the Work, as estimated by the Architect, and the net
insurance proceeds (or condemnation award, as the case may be) after the
deduction therefrom of the cost, if any, to the Beneficiary of the recovery and
paying out of such proceeds (including reasonable attorneys' fees allocable to
inspecting the Work and the plans and specifications therefor).
Upon completion of the Work and payment in full therefor, or upon
failure on the part of the Grantor promptly to commence or diligently to
continue the Work, or at any time upon request by the Grantor, the Beneficiary
may, at its option, apply the amount of any such proceeds then or thereafter in
the hands of the Beneficiary to the payment of the Indebtedness, provided,
however, that nothing herein contained shall prevent the Beneficiary from
applying at any time the whole or any part of such proceeds to the curing of any
Event of Default.
In the event the Work to be done is not Major Work, as determined by
the Beneficiary, then the net insurance proceeds held by the Beneficiary for
application thereto shall be paid to the Grantor by the Beneficiary from time to
time upon submission to the Beneficiary of bills and/or invoices showing costs
incurred in connection with the Work, subject, however, to the foregoing
provisions of this SECTION 2.6. except those which are applicable only if the
Work to be done is Major Work, as determined by the Beneficiary.
Section 2.7 RESTORATION BY THE BENEFICIARY. Provided that the
Beneficiary shall make available to the Grantor the insurance proceeds (if any)
recovered by the Beneficiary as herein provided, if within one hundred twenty
(120) days after the occurrence of any damage or destruction to the Improvements
requiring Major Work in order to restore the Improvements, the Grantor shall not
have submitted to the Beneficiary and received the Beneficiary's approval of
plans and specifications for the repair, restoration and rebuilding of the
Improvements so damaged or destroyed (approved by the Architect and by all
governmental authorities and other persons or entities, if any, whose approval
is required), or if, after such plans and specifications are approved by all
such governmental authorities and other persons or entities, if any, and the
Beneficiary, the Grantor shall fail to commence promptly such repair,
restoration and rebuilding, or if thereafter the Grantor fails diligently to
continue such repair, restoration and rebuilding or is delinquent in the payment
to mechanics, materialmen or others of the costs incurred in connection with
such Major Work, or, in the case of any damage or destruction not requiring
Major Work, as determined by the Beneficiary, in order to restore the
Improvements, if the Grantor shall fail to repair, restore and rebuild promptly
the Improvements so damaged or destroyed, then, in addition to all other rights
herein set forth, and after giving the Grantor ten (10) days written notice of
the nonfulfillment of one or more of the foregoing conditions, the Beneficiary,
or any lawfully appointed receiver of the Premises, may at their respective
options, perform or cause to be performed such repair, restoration and
rebuilding, and may take such other steps as they deem advisable to perform such
repair, restoration and rebuilding, and upon twenty-four (24) hours' prior
written notice to the Grantor, the Beneficiary may enter upon the Improvements
to the extent reasonably necessary or appropriate for any of the foregoing
purposes, and the Grantor hereby waives, for the Grantor and all others holding
under the Grantor, any claim against the Beneficiary and such receiver arising
out of ANYTHING done by the Beneficiary or such receiver pursuant hereto, and
the Beneficiary may, at its option, apply insurance proceeds (without the need
by the Beneficiary to fulfill any other requirements of this Leasehold Deed of
Trust) to reimburse the Beneficiary, and/or such receiver for all amounts
reasonably expended or incurred by them, respectively, in connection with the
performance of such Work, and any excess costs shall be paid by the Grantor to
the Beneficiary upon demand, and such payment of excess costs shall be deemed
part of the Indebtedness and shall be secured by the lien of this Leasehold Deed
of Trust.
Section 2.8 MAINTENANCE OF EXISTENCE. The Grantor will, so long as
it is owner of the Premises (or any part thereof or interest therein) and
subject to the terms and conditions of the Leases, do all things necessary to
preserve and keep in full force and effect its existence, franchises, rights and
privileges under the laws of the state of its formation and, subject to the
provisions of paragraph (ii) of SECTION 2.2, will comply with all regulations,
rules, ordinances, statutes, orders and decrees of any governmental authority or
court applicable to the Grantor, or to the Premises or any part thereof.
Section 2.9 TAXES AND OTHER CHARGES.
(i) Subject to the terms and conditions of the Leases and to
the extent payable by Grantor, the Grantor shall, in accordance with the Leases,
pay and discharge by the last day payable without penalty or premium all taxes
of every kind and nature, water rates, sewer rents and assessments, levies,
permits, inspection and license fees and all other charges imposed upon or
assessed against the Premises or any part thereof or upon the revenues, rents,
issues, income and profits of the Premises or arising in respect of the
occupancy, use or possession thereof. The Grantor shall exhibit to the
Beneficiary within ten (10) days after request and after the same are required
to be paid pursuant to the foregoing sentence, validated receipts or other
evidence satisfactory to the Beneficiary showing the payment of such taxes,
assessments, water rates, sewer rents, levies, fees and other charges which may
be or become a lien on the Premises. Should the Grantor default in the payment
of any of the foregoing taxes, assessments, water rates, sewer rents, levies,
fees or other charges, the Beneficiary may, but shall not be obligated to pay
the same or any part thereof and the Grantor shall, on demand, reimburse the
Beneficiary for all amounts so paid and such amounts shall bear interest at the
Post-Default Rate until reimbursed.
(ii) Nothing in this SECTION 2.9 shall require the payment or
discharge of any obligation imposed upon the Grantor by subsection (i) of this
SECTION 2.9 so long as the Grantor shall in good faith and at its own expense
contest the same or the validity thereof by appropriate legal proceedings which
proceedings must operate to prevent the collection thereof or other realization
thereon, the sale of the lien thereof and the sale or forfeiture of the Premises
or any part thereof to satisfy the same; provided that during such contest the
Grantor shall, at the option of the Beneficiary, establish reserves reasonably
satisfactory to the Beneficiary, assuring the discharge of the Grantor's
obligation hereunder and of any additional interest charge, penalty or expense
arising from or incurred as a result of such contest; and provided, further,
that if at any time payment of any obligation imposed upon the Grantor by
subsection (i) of this shall become necessary to prevent the delivery of a tax
deed conveying the Premises or any portion thereof or the sale of the tax lien
therefor because of non-payment, or the imposition of any penalty or cost on the
Beneficiary, then the Grantor shall pay the same in sufficient time to prevent
the delivery of such tax deed or the sale of such lien, or the imposition of
such penalty or cost on the Beneficiary.
(iii) The Grantor shall pay when due all (a) premiums for
fire, hazard and other insurance required to be maintained by the Grantor on the
Premises pursuant to the terms of SECTION 2.3 hereof, (b) title insurance
premiums relating to the insurance to be maintained on the Premises in
connection with this Leasehold Deed of Trust, and (c) any and all other costs,
expenses and charges expressly required to be paid hereunder, and subject to the
provisions hereof, to be paid for the maintenance and/or protection of, or on
account of any other collateral delivered, assigned, pledged, mortgaged,
transferred or hypothecated to the Beneficiary as security for the Indebtedness
or in connection with the execution and delivery of this Leasehold Deed of
Trust.
Section 2.10 MECHANICS' AND OTHER LIENS.
(i) Subject to the terms and conditions of the Leases, the
Grantor shall pay, bond or discharge of record, from time to time, forthwith,
all liens (and all claims and demands of mechanics, materialmen, laborers or
others, which, if unpaid, might result in or permit the creation of a lien) on
or affecting the Premises or any part thereof, or on or affecting the revenues,
rents, issues, income or profits arising therefrom and, in general, the Grantor
forthwith shall do, at the cost of the Grantor and without expense to the
Beneficiary, everything necessary to fully preserve the lien of this Leasehold
Deed of Trust. In the event that the Grantor fail in a timely manner to make
payment in full of, bond or discharge, such liens the Beneficiary may, but shall
not be obligated to, make payment, bond or discharge such liens, upon notice to
the Grantor if practicable in order to preserve the lien of this Leasehold Deed
of Trust or the collateral value of the Premises and the Grantor shall, on
demand, reimburse the Beneficiary for all sums so expended and such sums shall
bear interest at the Post-Default Rate until reimbursed.
(ii) Nothing in this SECTION 2.10 shall require the payment or
discharge of any obligation imposed upon the Grantor by subsection (1) of this
SECTION 2.10 so long as the Grantor shall bond or discharge any lien on the
Premises arising from such obligation or in good faith and at its own expense
contest the same or the validity thereof by appropriate legal proceedings which
proceedings must operate to prevent the collection thereof or other realization
thereon, the sale of the lien thereof and the sale or forfeiture of the Premises
or any part thereof, to satisfy the same; provided that during such contest the
Grantor shall, at the option of the Beneficiary, provide security satisfactory
to the Beneficiary, assuring the discharge of the Grantor's obligation hereunder
and of any additional interest charge, penalty or expense arising from or
incurred as a result of such contest; and provided, further, that if at any time
payment of any obligation imposed upon the Grantor by subsection (i) of this
SECTION 2.10 shall become necessary (a) to prevent the sale or forfeiture of the
Premises or any portion thereof because of non-payment, or (b) to protect the
lien of this Leasehold Deed of Trust, then the Grantor shall pay the same in
sufficient time to prevent the sale or forfeiture of the Premises or to protect
the lien of this Leasehold Deed of Trust, as the case may be.
Section 2.11 CONDEMNATION AWARDS. The Grantor, immediately upon
obtaining knowledge of the institution of any proceedings for the condemnation
of the Premises or any portion thereof, will notify the Beneficiary of the
pendency of such proceedings. The Beneficiary may participate in any such
proceedings and the Grantor from time to time will deliver to the Beneficiary
all instruments requested by it to permit such participation. Subject to the
terms and conditions of the Leases, all awards and compensation payable to the
Grantor as a result of any condemnation, or other taking or purchase in lieu
thereof, of the Premises or any part thereof, are hereby assigned to and shall
be paid to the Beneficiary. Subject to the terms and conditions of the Leases,
the Grantor hereby authorizes the Beneficiary to collect and receive such awards
and compensation, to give proper receipts and acquittances therefor and, in the
Beneficiary's sole discretion, to apply the same toward the payment of the
Indebtedness, notwithstanding the fact
that the Indebtedness may not then be due and payable, or to the restoration of
the Improvements. In the event that any portion of the condemnation awards or
compensation shall be used to reduce the Indebtedness, same shall be applied by
the Beneficiary in any manner it shall designate, including, but not limited to,
the application of such award or compensation to then unpaid installments of the
principal balance of the Indebtedness in the inverse order of their maturity so
that the regular payments under the Loan Agreement shall not be reduced or
altered in any manner. The Grantor, upon request by the Beneficiary, shall make,
execute and deliver any and all instruments requested for the purpose of
confirming the assignment of the aforesaid awards and compensation to the
Beneficiary free and clear of any liens, charges or encumbrances of any kind or
nature whatsoever. The Beneficiary shall not be limited to the interest paid on
the proceeds of any award or compensation, but shall be entitled to the payment
by the Grantor of interest at the applicable rate provided for herein or in the
Loan Agreement.
Notwithstanding the voiding of the original sale(s) or leasing(s) of all
or any portion of the Premises, the Grantor shall continue to pay the
Indebtedness at the time and in the manner provided for its payment in the Loan
Agreement and in this Leasehold Deed of Trust and the Indebtedness shall not be
reduced until any payment therefor shall have been actually received and applied
by the Beneficiary to the discharge of the Indebtedness. The Beneficiary may
apply any such payment to the discharge of the Indebtedness whether or not then
due and payable in such priority and proportions as the Beneficiary in its
discretion shall deem to be proper. If the Premises are sold, through
foreclosure or otherwise, prior to the receipt by the Beneficiary of such
payment, the Beneficiary shall have the right, whether or not a deficiency
judgment under the Loan Agreement shall have been sought, recovered or denied,
to receive said payment, or a portion thereof sufficient to pay the
Indebtedness, whichever is less. The Grantor, after obtaining the prior written
consent of the Beneficiary, shall file and prosecute its claim or claims for any
such payment in good faith and with due diligence and cause the same to be
collected and paid over to the Beneficiary, and hereby irrevocably authorizes
and empowers the Beneficiary, in the name of the Grantor or otherwise, to
collect and receipt for any such payment and to file and prosecute such claim or
claims, and although it is hereby expressly agreed that the same shall not be
necessary in any event, the Grantor shall, upon demand of the Beneficiary, make,
execute and deliver any and all assignments arid other instruments sufficient
for the purpose of assigning any such payment to the Beneficiary, free and clear
of any encumbrances of any kind or nature whatsoever.
Section 2.12 COSTS OF DEFENDING AND UPHOLDING THE LIEN. If any
action or proceeding is commenced to which action or proceeding the Beneficiary
is made a party or in which it becomes necessary to defend or uphold the lien of
this Leasehold Deed of Trust, the Grantor shall, on demand, reimburse the
Beneficiary for all expenses (including, without limitation, reasonable
attorneys' fees and disbursements and reasonable appellate attorneys' fees and
disbursements) incurred by the Beneficiary in any such action or proceeding and
such expenses shall bear interest at the Post-Default Rate until reimbursed. In
any action or proceeding to foreclose this Leasehold Deed of Treat or to recover
or collect the Indebtedness, the provisions of law relating to the recovering of
costs, disbursements and allowances shall prevail unaffected by this covenant.
Section 2.13 ADDITIONAL ADVANCES AND DISBURSEMENTS. The Grantor
shall pay by the last day payable without premium or penalty all payments and
charges on all liens,
encumbrances, ground and other leases and security interests which affect or may
affect or attach or may attach to the Premises, or any part thereof, and in
default thereof, the Beneficiary shall have the right, but shall not be
obligated, to pay, without notice to the Grantor, such payments and charges and
the Grantor shall, on demand, reimburse the Beneficiary for amounts so paid. In
addition, upon default of the Grantor in the performance of any other terms,
covenants, conditions or obligations by it to be performed hereunder or under
any such lien, encumbrance, lease or security interest, the Beneficiary shall
have the right, but shall not be obligated, with, except in the case of an
emergency condition, prior notice to Grantor, to cure such default in the name
and on behalf of the Grantor. All reasonable sums advanced and reasonable
out-of-pocket expenses incurred at any time by the Beneficiary pursuant to this
SECTION 2.13 or as otherwise provided under the terms and provisions of this
Leasehold Deed of Trust or under applicable law shall bear interest from the
date that such sum is advanced or expenses incurred, to and including the date
of reimbursement, computed at the Post-Default Rate. All interest payable
hereunder shall be computed on the basis of a 360-day year over the actual
number of days elapsed. Any such amounts advanced or incurred by the
Beneficiary, together with the interest thereon, shall be payable on demand,
shall, until paid, be secured by this Leasehold Deed of Trust as a lien on the
Premises and shall be part of the Indebtedness.
Section 2.14 COSTS OF ENFORCEMENT. The Grantor agrees to bear and
pay all expenses (including, without limitation, reasonable attorneys' fees and
disbursements and reasonable appellate attorneys' fees and disbursements for
legal services of every kind) of or incidental to (i) any amendment, renewal,
modification, consolidation, supplement, restatement or restructuring of this
Leasehold Deed of Trust, the Loan Agreement or any document entered into in
connection with the Indebtedness, or (ii) the enforcement of any provision
hereof, by litigation or otherwise, or the enforcement, compromise of settlement
of this Leasehold Deed of Trust, the Loan Agreement or the Indebtedness, and for
the curing thereof or (iii) for defending or asserting the rights and claims of
the Beneficiary in respect thereof by litigation or otherwise. All rights and
remedies of the Beneficiary and the Trustee shall be cumulative and may be
exercised singly or concurrently.
Section 2.15 FILING CHARGES, RECORDING FEES, TAXES, ETC. The Grantor
shall pay any and all taxes, charges, filing, registration and recording fees,
excises and levies imposed upon the Beneficiary by reason of its ownership of
the Loan Agreement or this Leasehold Deed of Trust or any mortgage supplemental
hereto, any security instrument with respect to any interest of the Grantor in
and to any fixture or personal property at the Premises or any instrument of
further assurance, other than income, franchise, succession, inheritance,
business and similar taxes, and shall pay all other taxes, if any, required to
be paid on the debt evidenced by the Loan Agreement. In the event the Grantor
fails to make such payment within ten (10) days after written notice thereof to
the Grantor, then the Beneficiary shall have the right, but shall not be
obligated, to pay the amount due, and the Grantor shall, on demand, reimburse
the Beneficiary for said amount, together with interest thereon computed at the
Post-Default Rate.
Section 2.16 TAX AND INSURANCE DEPOSITS. If an Event of Default
shall occur and be continuing hereunder or if the Grantor shall default in its
obligations set forth in Section 2.9 hereof, then the Beneficiary, at its
option, to be exercised by ten (10) days' written notice to the Grantor, may
require that the Grantor deposit with the Beneficiary, monthly, one-twelfth
(1/12th)
of the annual charges for insurance premiums and real estate taxes, assessments,
water, sewer and other charges which might become a lien upon the Premises or
any part thereof (all of the foregoing, the "Impositions"), and the Grantor
shall, accordingly, make such deposits. In addition, if required by the
Beneficiary, the Grantor shall simultaneously therewith deposit with the
Beneficiary a sum of money which together with the monthly installments
aforementioned will be sufficient to make each of the payments aforementioned at
least thirty (30) days prior to the date such payments are due. Should said
charges not be ascertainable at the time any deposit is required to be made with
the Beneficiary, the deposit shall be made on the basis of an estimate made by
the Beneficiary in its sole discretion, and when the charges are fixed for then
current year, the Grantor shall deposit any deficiency with the Beneficiary. All
funds so deposited with the Beneficiary shall be held by it, but not in escrow
and, except to the extent required by applicable law, without interest, and,
provided that no Event of Default shall have occurred, shall be applied in
payment of the charges aforementioned when and as payable, to the extent the
Beneficiary shall have such funds on hand. Should an Event of Default occur, the
funds deposited with the Beneficiary, as aforementioned, may be applied in
payment of the charges for which such funds shall have been deposited or to the
payment of the Indebtedness or any other charges affecting the security of the
Beneficiary, as the Beneficiary sees fit, but no such application shall be
deemed to have been made by operation of law or otherwise until actually made by
the Beneficiary as herein provided, nor shall any application be deemed to
affect any right or remedy of the Beneficiary hereunder or under any statute or
rule of law. If deposits are being made with the Beneficiary, the Grantor shall
furnish the Beneficiary with bills for the charges for which such deposits are
required to be made hereunder and/or such other documents necessary for the
payment of same, at least fifteen (15) days prior to the date on which the
charges first become payable. In the event that the Grantor fails to pay any
such amount, the Beneficiary may, but shall not be obligated to, make payment
thereof, and the Grantor shall, on demand, reimburse the Beneficiary for all
sums so expended, together with interest thereon computed at the Post-Default
Rate.
Section 2.17 RESTRICTIVE COVENANTS AND LEASING REQUIREMENTS. Except
as may be expressly permitted under the terms of the Loan Agreement, without the
prior written consent of the Beneficiary, the Grantor shall not: (i) execute or
permit to exist any lease or occupancy of all or substantially all of the
Premises, (ii) modify, renew or amend any lease or occupancy agreement affecting
the Premises; (iii) grant rent concessions, or discount any rents, or collect
any rents for a period of more than one month in advance; (iv) execute any
conditional bill of sale, chattel mortgage or other security instruments
covering any furniture, furnishings, fixtures and equipment, intended to be
incorporated in the Premises or the appurtenances thereto, or covering articles
of personal property placed in the Premises or purchase any of such furniture,
furnishings, fixtures and equipment so that ownership of the same will not vest
unconditionally in the Grantor, free from encumbrances on delivery to the
Premises; (v) further assign the leases and rents affecting the Premises; (vii)
sell, transfer, alienate, grant, convey or assign any interest in the Premises
or any part thereof; or (viii) further mortgage, encumber, alienate,
hypothecate, grant a security interest in or grant any other interest whatsoever
in the Premises or any part thereof, or interest therein.
Section 2.18 ESTOPPEL CERTIFICATES. The Grantor, within ten (10)
business days upon request in person or by mail, shall furnish to the
Beneficiary a written statement, duly acknowledged, setting forth the amount due
on this Leasehold Deed of Trust, the terms of
payment and the maturity date of the Loan Agreement, the date to which interest
has been paid, whether any offsets or defenses exist against the Indebtedness
and, if any are alleged to exist, a detailed description of the nature thereof.
Section 2.19 TRUST FUNDS. To the extent, if any, required by
applicable law or to preserve the lien of this Leasehold Deed of Trust, the
priority of the lien of this Leasehold Deed of Trust and/or the rights of the
Beneficiary hereunder, the Grantor will receive the advances secured hereby, and
will hold the right to receive such advances, as a trust fund to be applied
first for the purpose of paying the cost of the improvement and will apply the
same first to the payment of the cost of the improvement before using any part
of the total of such advances for any other purpose.
Section 2.20 ASSIGNMENT OF RENTS. Subject to the Landlord's rights
under the Leases, Grantor hereby assigns to the Beneficiary, as further security
for the payment of the Indebtedness, its interest in the rents, issues and
profits of the Premises, together with its interest in all leases and other
documents evidencing such rents, issues and profits now or hereafter in effect
and its interest in any and all deposits held as security under said leases, and
shall, upon demand, deliver to the Beneficiary an executed counterpart of each
lease or other document to which it is a party and which affects the Premises.
Nothing contained in the foregoing sentence shall be construed to bind the
Beneficiary to the performance of any of the covenants, conditions or provisions
contained in any such lease or other document or otherwise to impose any
obligation on the Beneficiary (including, without limitation, any liability
under the covenant of quiet enjoyment contained in any lease or in any
applicable state law in the event that any tenant shall have been joined as a
party defendant in any action to foreclose this Leasehold Deed of Trust and
shall have been barred and foreclosed thereby of all right, title and interest
and equity of redemption in the Premises), except that the Beneficiary shall be
accountable for any money actually received pursuant to such assignment. The
Grantor hereby further grants to the Beneficiary the right (i) to enter upon and
take possession of the Premises for the purpose of collecting the said rents,
issues and profits, (ii) to dispossess by the usual summary proceedings (or any
other proceedings of the Beneficiary's selection) any tenant defaulting in the
payment thereof to the Beneficiary, (iii) to let the Premises, or any part
thereof, and (iv) to apply said rents, issues and profits, after payment of all
necessary charges and expenses on account of said Indebtedness. Such assignment
and grant shall continue in effect until the Indebtedness is paid, the execution
of this Leasehold Deed of Trust constituting and evidencing the irrevocable
consent of the Grantor to the entry upon and taking possession of the Premises
by the Beneficiary pursuant to such grant, whether foreclosure has been
instituted or not and without applying for a receiver. Until the occurrence of
an Event of Default, the Grantor shall have a revocable license to receive said
rents, issues and profits and otherwise manage the Premises. The Grantor agrees
to hold said rents, issues and profits in trust and to use the same fast, in
payment of the cost of the improvement, second, in payment of the Indebtedness
to the extent the same is then due and owing, and third, in such manner as the
Beneficiary may elect. Such license of the Grantor to collect and receive said
rents, issues and profits may be revoked by the Beneficiary upon the occurrence
of an Event of Default by giving not less than five (5) days' written notice of
such revocation, served personally upon or sent by registered mail to the record
owner of the Premises. The Grantor hereby appoints the Beneficiary as its
attorney-in-fact, coupled with an interest, to receive and collect all rent,
additional rent and other sums due under the terms of each lease to which the
Grantor is a party and to direct any such tenant, by written
notice or otherwise, to forward such rent, additional rent or other sums by mail
or in person to the Beneficiary.
Section 2.21 INDEMNITY. The Grantor agrees that it shall indemnify,
defend and hold harmless the Beneficiary, the Trustee and each Lender from and
against all loss, liability, obligation, claim, damage, penalty, cause or
action, reasonable, out-of-pocket cost and expense, including without limitation
any assessments, levies, impositions, judgments, reasonable attorneys' fees and
disbursements, cost of appeal bonds and printing costs, imposed upon or incurred
by or asserted against the Beneficiary, the Trustee and any other Lender, except
as may be caused by Beneficiary's gross negligence or willful misconduct by
reason of (i) ownership of this Leasehold Deed of Trust; (ii) any accident,
injury to or death of persons or loss of or damage to property occurring on or
about the Premises; (iii) any use, non-use or condition of the Premises; (iv)
any failure on the part of the Grantor to perform or comply with any of the
terms of this Leasehold Deed of Trust in any material respect; (v) performance
of any labor or services or the furnishing of any materials or other property in
respect of the Premises or any part for maintenance or otherwise (vi) the
imposition of any mortgage, real estate or governmental tax incurred as a result
of this Leasehold Deed of Trust or the Loan Agreement, other than income tax
payable by, or other taxes personal to, the Beneficiary; or (vii) any violation
or alleged violation by the Grantor of any law, in each case except if resulting
from the gross negligence or willful misconduct of Beneficiary. Any amounts
payable under this SECTION 2.18 shall be due and payable on demand and until
paid shall bear interest at the Post-Default Rate. If any action is brought
against the Beneficiary and or the Trustee by reason of any of the foregoing
occurrences, the Grantor will, upon the Beneficiary's request, defend and resist
such action, suit or proceeding, at the Grantor's sole cost and expense by
counsel approved by the Beneficiary.
Section 2.22 ENVIRONMENTAL PROVISIONS. For the purposes of this
Section the following terms shall have the following meanings: (i) the term
"Hazardous Material" shall mean any material or substance that, whether by its
nature or use, is subject to regulation under any Environmental Requirement,
(ii) the term "Environmental Requirements" shall collectively mean the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42
U.S.C. ss. 9601 ET SEQ.), the Hazardous Materials Transportation Act (49 U.S.C.
ss. 1801 ET SEQ.), the Resource Conservation and Recovery Act (42 U.S.C. ss.
6901 ET SEQ.), the Toxic Substances Control Act (15 U.S.C. ss. 2601 ET SEQ.),
the Clean Air Act (42 (U.S.C. ss. 7401 et SEQ.) and the Federal Water Pollution
Control Act (33 U.S.C. ss. 1251 ET SEQ.), all as presently in effect and as the
same may hereafter be amended, any regulation pursuant thereto, or any other
present or future law, ordinance, rule, regulation, order or directive
addressing environmental, health or safety issues of or by any Governmental
Authority, (iii) the term "Governmental Authority" shall mean the Federal
government, or any state or other political subdivision thereof, or any agency,
court or body of the Federal government, any state or other political
subdivision thereof, exercising executive, legislative, judicial, regulatory or
administrative functions, and (iv)) the term "diligent inquiry" shall mean a
level of inquiry at least equal to any environmental site assessment of the
Premises conducted in accordance with the Beneficiary's environmental policies
and procedures. The Grantor hereby represents and warrants to the Beneficiary
that to the best of its knowledge (a) no Hazardous Material is currently located
at, on, in, under or about the Premises in violation of any Environmental Laws,
(b) no Hazardous Material is currently or, to the best of the Grantor's
knowledge after diligent inquiry, has been located at, in, on, under or about
the Premises in a manner which violates any Environmental Requirement, or which
requires cleanup or corrective action of any kind by Grantor under any
Environmental Requirement, (c) no releasing, emitting, discharging, leaching,
dumping or disposing of any Hazardous Material from the Premises onto or into
any other property or from any other property onto or into the Premises is
occurring or, to the best of the Grantor's knowledge after diligent inquiry, has
occurred, in violation of any Environmental Requirement, (d) no notice of
violation, lien, complaint, suit, order or other notice with respect to the
environmental condition of the Premises is outstanding, nor, to the best of the
Grantor's knowledge after diligent inquiry, has any such notice been issued
which has not been fully satisfied and complied with in a timely fashion so as
to bring the Premises into full compliance with all Environmental Requirements,
and will not generate, store, handle, process dispose of or otherwise use, and
(e) Grantor will not permit any tenant or other occupant of the Premises to
generate, store, handle, process, dispose of or otherwise use, Hazardous
Materials at, in, on, under or about the Premises in a manner in violation of
any Environmental Requirement. The Grantor shall notify the Beneficiary promptly
in the event of any spill or other release of any Hazardous Material at, in, on,
under or about the Premises which is required to be reported to a Governmental
Authority under any Environmental Requirement, will promptly forward to the
Beneficiary copies of any notices received by the Grantor relating to alleged
violations of any Environmental Requirement and will promptly pay when due any
fine or assessment against the Beneficiary, the Grantor or the Premises relating
to any Environmental Requirement. If at any time it is determined that the
operation or use of the Premises violates any applicable Environmental
Requirement or that there are Hazardous Materials located at, in, on, under or
about the Premises which, under any Environmental Requirement, require special
handling in collection, storage, treatment or disposal, or any other form of
cleanup or corrective action by Grantor, the Grantor shall, within thirty (30)
days after receipt of notice thereof from any Governmental Authority or from the
Beneficiary, take, at its sole cost and expense, such actions as may be
necessary to fully comply in all respects with all Environmental Requirements,
PROVIDED, HOWEVER, that if such compliance cannot reasonably be completed within
such thirty (30) day period, the Grantor shall commence such necessary action
within such thirty (30) day period and shall thereafter diligently and
expeditiously proceed to complete in a timely fashion with all Environmental
Requirements. If the Grantor fails to timely take, or to diligently and
expeditiously proceed to complete in a timely fashion, any such action, the
Beneficiary may, in its sole and absolute discretion, but, except in the case of
any emergency condition, with delivery of prior written notice to Grantor, make
advances or payments towards the performance or satisfaction of the same, but
shall in no event be under any obligation to do so. All reasonable sums so
advanced or paid by the Beneficiary (including, without limitation, counsel and
consultant fees and expenses, investigation and laboratory fees and expenses,
and fines or other penalty payments) and all reasonable sums advanced or paid in
connection with any judicial or administrative investigation or proceeding
relating thereto, will immediately, upon demand, become due and payable from the
Grantor and shall bear interest at the Post-Default Rate from the date any such
sums are so advanced or paid by the Beneficiary until the date any such sums are
repaid by the Grantor to the Beneficiary. The Grantor will execute and deliver,
promptly upon request, such instruments as the Beneficiary reasonably may deem
useful or necessary to permit the Beneficiary to take any such action, and such
additional notes and mortgages, as the Beneficiary may require to secure all
sums so advanced or paid by the Beneficiary. If a lien is filed against the
Premises by any Governmental Authority resulting from the need to expend or the
actual expending of monies arising from an action or omission, whether
intentional or unintentional, of the Grantor or for which the Grantor is
responsible,
resulting in the releasing, spilling, leaking, leaching, pumping, emitting,
pouring, emptying or dumping of any Hazardous Material into the waters or onto
land located within or without the state where the Premises are located, then
the Grantor will, within thirty (30) days from the date that the Grantor is
first given notice that such lien has been placed against the Premises (or
within such shorter period of time as may be specified by the Beneficiary if
such Governmental Authority has commenced steps to cause the Premises to be sold
pursuant to such lien) either (a) pay the claim and remove the lien, or (b)
furnish a cash deposit, bond, or such other security with respect thereto as is
satisfactory in all respects to the Beneficiary and is sufficient to effect a
complete discharge of such lien on the Premises. The Beneficiary may, at its
option, if the Beneficiary reasonably believes that a Hazardous,; Material or
other environmental condition violates or threatens to violate any Environmental
Requirement, except in the case of an emergency condition with delivery of prior
written notice to Grantor, cause an environmental audit of the Premises or
portions thereof to be conducted to confirm the Grantor's compliance with the
provisions of this Section, and the Grantor shall cooperate in all reasonable
ways with the Beneficiary in connection with any such audit and shall pay all
costs and expenses incurred in connection therewith. The Grantor will defend,
indemnify, and hold harmless the Beneficiary and each Lender, and their
respective employees, agents, officers, and directors, from and against any and
all claims, demands, penalties, causes of action, fines, liabilities,
settlements, damages, costs, or expenses of whatever kind or nature, known or
unknown, foreseen or unforeseen, contingent or otherwise (including, without
limitation, counsel and consultant fees and expenses, investigation and
laboratory fees and expenses, court costs, and litigation expenses) arising out
of, or in any way related to, (i) any breach by the Grantor of any of the
provisions of this Section, (ii) the presence, disposal, spillage, discharge,
emission, leakage, release, or threatened release of any Hazardous Material by
Grantor which is at, in, on, under, about, from or affecting the Premises,
including, without limitation, any damage or injury resulting from any such
Hazardous Material to or affecting the Premises or the soil, water, air,
vegetation, buildings, personal property, persons or animals located on the
Premises or on any other property or otherwise, (iii) any personal injury
(including wrongful death) or property damage (real or personal) arising out of
or related to any such Hazardous Material, (iv) any lawsuit brought or
threatened, settlement reached, or order or directive of or by any Governmental
Authority relating to such Hazardous Material, or (v) any violation of any
Environmental Requirement or any policy or requirement of the Beneficiary except
if caused by the gross negligence or willful misconduct of Beneficiary, its
employees, agents, officers, directors or representatives. This indemnification
shall, notwithstanding any exculpatory or the provision of any nature whatsoever
to the contrary set forth in the Loan Agreement, this Leasehold Deed of Trust or
any other document or instrument now or hereafter executed and delivered in
connection with the loan evidenced by the Loan Agreement and secured by this
Leasehold Deed of Trust, constitute the personal recourse undertakings,
obligations and liabilities of the Grantor. If this Leasehold Deed of Trust is
foreclosed or the Grantor tenders a deed or assignment in lieu of foreclosure,
the Grantor shall deliver the Premises to the purchaser at foreclosure or to the
Beneficiary, its nominee, or wholly owned subsidiary, as the case may be, in a
condition that complies in all material respects with all Environmental
Requirements. The obligations and
liabilities of the Grantor under this Section shall survive and continue in full
force and effect and shall not be terminated, discharged or released, in whole
or in part, irrespective of whether the Indebtedness has been paid in full and
irrespective of any foreclosure of this Leasehold Deed of Trust or acceptance by
the Beneficiary, its nominee or wholly owned subsidiary of a deed or assignment
in lieu of foreclosure and irrespective of the discharge, satisfaction, release
or assignment of this Leasehold Deed of Trust or of any other fact or
circumstance of any nature whatsoever.
Section 2.23 RIGHT OF ENTRY. The Beneficiary and its agents shall
have the right to enter and inspect the Premises at all reasonable times.
Section 2.24 WAIVER OF STATUTORY RIGHTS. Notwithstanding anything
herein contained to the contrary, the Grantor: (i) hereby irrevocably and
unconditionally waives any and all rights to trial by jury in any action, suit
or counterclaim arising in connection with, out of or otherwise relating to the
Loan Agreement , this Leasehold Deed of Trust or any other document or
instrument now or hereafter executed and delivered in connection therewith or
the loan secured by this Leasehold Deed of Trust; and (ii) will not (a) at any
time insist upon, or plead, or in any manner whatever claim or take any benefit
or advantage of any stay or extension or moratorium law, any exemption from
execution or sale of the Premises or any part thereof, wherever enacted, now or
at any time hereafter in force, which may affect the covenants and terms of
performance of this Leasehold Deed of Trust, nor (b) claim, take or insist upon
any benefit or advantage of any law now or hereafter in force providing for the
valuation or appraisal of the Premises, or any part thereof, prior to any sale
or sales thereof which may be made pursuant to any provision hereof, or pursuant
to the decree, judgment or order of any court of competent jurisdiction; nor (c)
after any such sale or sales, claim or exercise any right under any statute
heretofore or hereafter enacted to redeem the property so sold or any part
thereof; (i) hereby expressly waives all benefit or advantage of any such law or
laws; and (ii) covenants not to hinder, delay or impede the execution of any
power herein granted or delegated to the Beneficiary, but to suffer and permit
the execution of every power as though no such law or laws had been made or
enacted. The Grantor, for itself and all who may claim under it, waives, to the
extent that it lawfully may, all right to have the Premises (or any part
thereof) marshalled upon any foreclosure hereof.
Section 2.25 LEASEHOLD DEED OF TRUST PROVISIONS.
(i) The Grantor covenants and agrees as follows: (a) to
promptly pay, all rent, additional rent and other sums or charges required to be
paid by the tenant under the Leases; (b) to promptly and faithfully observe,
perform and comply with all the terms, covenants and provisions thereof on its
part to be observed, performed and complied with, at the times act forth
therein; (c) not to do, permit, suffer or refrain from doing anything as a
result of which, there could be a default under or breach of any of the terms
thereof; (d) not to cancel or terminate any of the Leases, nor to suffer or
permit such cancellation or termination; not to modify, amend or in any way
alter or permit the alteration of any of the material terms thereof; nor to
surrender the property demised thereunder, (e) to give the Beneficiary immediate
notice of any default by anyone thereunder and to promptly deliver to the
Beneficiary copies of each notice of default and
all other notices, communications, plans, specifications and other similar
instruments received or delivered by the Grantor in connection therewith; (f)
not to waive, excuse or discharge any of the material obligations and agreements
of the landlord thereunder; (g) to furnish to the Beneficiary such information
and evidence as the Beneficiary may reasonably request concerning the Grantor's
due observance, performance and compliance with the terms, covenants and
provisions thereof and (h) that any material default of the tenant under any of
the Leases shall constitute a default under this Leasehold Deed of Trust.
(ii) In the event of any material default by the Grantor in
the performance of any of its obligations under any of the Leases, including,
without limitation, any default in the payment of rent and other charges and
impositions made payable by the tenant thereunder, which default shall continue
beyond the applicable grace period, if any, then, in each and every case, the
Beneficiary may, at its option and without notice, cause the default or defaults
to be remedied and otherwise exercise any and all of the rights of the Grantor
thereunder in the name of and on behalf of the Grantor. The Grantor shall, on
demand,. reimburse the Beneficiary for all advances made and expenses incurred
by the Beneficiary in curing any such default (including, without limitation,
reasonable attorneys' fees), together with interest thereon computed at the
Post-Default Rate from the date that an advance is made or expense is incurred
to and including the date the same is paid. Upon receipt by the Beneficiary from
the Landlord of any written notice of default on the part of the Grantor under
any of the Leases, the Beneficiary may rely thereon and take any action as the
Beneficiary shall deem necessary or desirable even though the existence of such
default or the nature thereof be questioned or denied by or on behalf of the
Grantor.
(iii) That the fee title and the leasehold estate in the
property demised by each of the Leases shall not merge but shall always be kept
separate and distinct, notwithstanding the union of said estates in either the
landlord thereunder, the Grantor, the Beneficiary or a third party, whether by
purchase or otherwise. If the Grantor acquires any greater or further estate,
title or interest in and to any of the fee of property now or hereafter
constituting a part of any of the Leases, the lien of this Leasehold Deed of
Trust shall automatically and without the necessity of the execution and/or
delivery of any further instruments or documents be spread to cover and be a
lien upon such acquired estate, title or interest and same shall thereupon be
and become a part of the Premises with the same force and effect as if
specifically encumbered herein and as so spread shall be prior to the lien of
any mortgage or deed of first placed on such acquired estate subsequent to the
date of this Leasehold Deed of Trust. Without limitation or derogation of the
foregoing sentence the Grantor nevertheless agrees to execute all instruments
and documents which the Beneficiary may reasonably require to ratify, confirm
and further evidence the Beneficiary's lien on the acquired estate, title or
interest. Furthermore, the Grantor hereby appoints the Beneficiary its true and
lawful attorney-in-fact to execute and deliver all such instruments and
documents in the name and on behalf of the Grantor. This power, being coupled
with an interest, shall be irrevocable as long as the indebtedness remains
unpaid.
(iv) The Grantor shall use its best efforts to obtain and
deliver to the Beneficiary within twenty (20) days after receipt of written
demand by the Beneficiary, an estoppel certificate from the landlord under each
of the Leases setting forth (i) the name of the tenant thereunder, (ii) that the
respective Lease has not been modified or, if it has been modified,
the date of each modification (together with copies of each such modification
certified as true and correct by the landlord), (iii) the basic rent payable
under the Lease, (iv) the date to which all rental charges have been paid by the
tenant under the Lease, and (v) whether there are any alleged defaults of the
tenant under the Leases and, if there are, setting forth the nature thereof in
reasonable detail.
(v) Notwithstanding anything to the contrary contained herein,
this Leasehold Deed of Trust shall not constitute an assignment of any of the
Leases within the meaning of any provision thereof prohibiting its assignment
and the Beneficiary shall have no liability or obligation thereunder by reason
of its acceptance of this Leasehold Deed of Trust. The Beneficiary shall be
liable for the obligations of the tenant arising under any of the Leases for
only that period of time which the Beneficiary is in possession of the Premises
or has acquired, by foreclosure or otherwise, and is holding all of the
Grantor's right, title and interest therein.
(vi) In the event any of the Leases shall be terminated and
the Beneficiary SHALL require from the lessor under such Lease a new lease, the
Grantor hereby waives any right, title or interest in and to such new lease or
the leasehold estate created thereby, waiving all rights of redemption now or
hereafter operable under any law.
(vii) The Grantor expressly agrees that if there shall be
filed by or against any lessor under any Lease any petition, action and/or
proceeding under the Revised Bankruptcy Act of 1978, et seq., as amended and any
successor act thereto (the "Bankruptcy Code"), or any other similar federal
and/or state law now or hereafter in effect (collectively hereinafter referred
to as the "Landlord's Bankruptcy"), the Grantor shall not elect to treat such
Lease as terminated, cancelled and/or surrendered pursuant to applicable
provisions of the Bankruptcy Code including, but not limited to, Section
365(h)(1), without the Beneficiary's prior written consent. In the event of the
Landlord's Bankruptcy, the Grantor expressly covenants and agrees, intending
that the Beneficiary rely thereon, that it shall reaffirm and ratify the
legality, validity, binding effect and enforceability of the Leases to the
Beneficiary and the Grantor also covenants and agrees that it shall remain in
possession of the Premises and the leasehold estate created by the such Lease,
notwithstanding any rejection thereof by the lessor under the such Lease and/or
any trustee, custodian, receiver or other similar official.
(viii) The lien of this Leasehold Deed of Trust attaches to
all of the Grantor's rights and remedies now and hereafter arising under or
pursuant to the Bankruptcy Code, including, but not limited to, the Grantor's
right to elect to remain in possession of the Premises and the leasehold estate
created by each of the Leases in the event of the Landlord's Bankruptcy pursuant
to Section 365(h)(1). Any such election to terminate, cancel and/or surrender
any Lease in the event of the Landlord's Bankruptcy without the Beneficiary's
prior written consent shall be null and void.
(ix) The Grantor hereby unconditionally assigns, transfers,
and sets over to the Beneficiary (a) all of the Grantor's claims and rights to
damages, and any other remedies in connection therewith arising from any
rejection of any Lease by the lessor thereunder pursuant to the Bankruptcy Code
in the event of the Landlord's Bankruptcy, and/or by any trustee, custodian,
receiver or other similar official. The Beneficiary shall have the right,
but not the obligation, to proceed in its own name and/or in the name of the
Grantor in respect of any claim, suit, action and/or proceeding relating to such
rejection of such Lease, including, but not limited to, the right to file and
prosecute, to the exclusion of the Grantor, any and all proofs of claims,
complaints, notices and other documents is any case in respect of the lessor of
such Lease under and pursuant to the Bankruptcy Code, and (b) the Grantor's
right of election to remain in possession of the Premises in the event of the
Landlord's Bankruptcy under and pursuant to Section 365(h)(1) of the Bankruptcy
Code. This assignment constitutes a present, absolute, irrevocable and
unconditional assignment of the foregoing claims, elections, rights and
remedies, and shall continue in full force and effect until the Loan Agreement
and the Indebtedness have been paid in full and this Leasehold Deed of Trust has
been satisfied and discharged. Any amounts received by the Beneficiary as
damages arising out of the rejection of any Lease by the Landlord shall be
applied in the manner set forth in SECTION 3.2 of this Leasehold Deed of Trust.
(x) If, pursuant to any applicable section of the Bankruptcy
Code, the Grantor seeks to offset, counterclaim, deduct, and/or assert a defense
against the rent, additional rent or other sums due under any Lease, the amount
of any damages caused by the non-observance and/or non-performance of the lessor
under such Lease, the Grantor shall, prior to such offset, counterclaim, defense
and/or deduction notify the Beneficiary of its intent to do so, setting forth
with specificity the amounts proposed to be offset, counterclaimed, deducted,
and/or defended against and for what purposes. The Beneficiary shall thereupon
have the right, but not the obligation, to object to all or any part of such
offset, counterclaim and/or deduction and, in the event of such objection, the
Grantor shall not effect any such offset counterclaim and/or deduction. Neither
the Beneficiary's failure to object to any such offset, counterclaim and/or
deduction nor any objection or other communication between the Beneficiary and
the Grantor shall constitute an approval of any such offset, counterclaim,
deduction and/or defense by the Beneficiary. The Grantor expressly agrees to
pay, protect, indemnify and save harmless the Beneficiary from and against any
and all claims, demands, actions, suits, proceedings, damages, losses,
liabilities, judgments, costs and expenses of every kind and nature (including
reasonable attorneys' fees) arising from or relating to any offset,
counterclaim, deduction and/or assertion of a defense by the Grantor as herein
described.
(xi) If any action, proceeding, motion and/or notice shall be
commenced or filed with respect to the Grantor or the Real Property, or any part
thereof; in connection with the Bankruptcy Code, the Beneficiary shall have the
right, but not the obligation, to the exclusion of the Grantor, exercisable upon
five (5) days prior written notice, to conduct and control any litigation with
counsel of the Beneficiary's choice. The Beneficiary may proceed in its own name
or in the name of the Grantor in connection with any such litigation, and the
Grantor expressly agrees to execute and deliver all and every power, consent,
authorization and other documents required by the Beneficiary in connection
therewith. The Grantor shall pay to the Beneficiary on demand any and all costs
and expenses (including reasonable attorneys' fees) paid or incurred and payable
by the Beneficiary in connection with such litigation shall be secured by the
lien of this Leasehold Deed of Trust. The Grantor also agrees not to commence
any action, suit, proceeding and/or case or file any application or make any
motion in respect of any Lease in the event of the Landlord's Bankruptcy without
the prior written consent of the Beneficiary.
(xii) The Grantor hereby irrevocably appoints the Beneficiary,
its agent and attorney-in-fact (which appointment is coupled with an interest)
to observe and perform on behalf of the Grantor the covenants and agreements
contained in this section, and any advances made by the Beneficiary in
connection with such performance or observance shall be repaid by the Grantor
within ten (10) days of demand with interest at the Post-Default Rate and the
amount so advanced, and interest thereon, shall be a lien upon the Premises and
shall be secured by this Leasehold Deed of Trust. Such performance or observance
by the Beneficiary shall not prevent the Grantor's failure to perform or observe
from constituting an Event of Default.
(xiii) The Grantor shall give the Beneficiary notice of its
intention to exercise each and every option to extend the term of any Lease at
least twenty (20) but not more than sixty (60) days prior to the expiration of
the time to exercise such option under the terms of such Lease. If the Grantor
intends to extend the term of such Lease, it shall deliver to the Beneficiary,
together with the notice of such decision, a copy of the notice of extension
delivered to the Landlord If, following the occurrence and during the
continuance of an Event of Default, the Grantor does not intend to extend the
term of such Lease, the Beneficiary may, at its option, in the connection with a
foreclosure or other enforcement of this Leasehold Deed of Trust, exercise the
option to extend in the name and on behalf of the Xxxxxxx. In any event,
following the occurrence and during the continuance of an Event of Default, the
Grantor hereby appoints the Beneficiary as its attorney-in-fact to execute and
deliver, for and in the name of the Grantor, all instruments and agreements
necessary under each Lease or otherwise to cause any extension of the term of
each such Leases. This power, being coupled with an interest, shall be
irrevocable as long as the indebtedness secured hereby remains unpaid.
ARTICLE III
DEFAULT AND REMEDIES
Section 3.1 EVENTS OF DEFAULT. The following shall constitute
"Events of Default" under this Leasehold Deed of Trust: (a) the occurrence of
any Event of Default under the Loan Agreement or any of the Financing Agreements
(as defined in Section 5.10 hereof), or (b) failure by the Grantor in the
payment of any amounts required to be paid hereunder; or (c) failure by the
Grantor in the due observance or performance of any of the terms, covenants or
conditions contained herein, subject to any applicable grace periods contained
in the Loan Agreement; or (d) should any representation or warranty made by
Grantor herein or by any guarantor prove to be untrue in any material respect at
the time when made; or (e)except as may be expressly permitted under the terms
and conditions of the Loan Agreement, the further assignment or encumbrance by
the Grantor of the leases or rents of the Premises or any part thereof without
in each instance the prior written consent of the Beneficiary; or (f) except as
may be expressly permitted under the terms and conditions of the Loan Agreement,
if the Grantor leases all or part of the Premises without in each instance the
prior written consent of the Beneficiary; or (g) subject to the provisions of
paragraph (i) of Section 2.9 hereof permitting the Grantor to contest the same,
the failure by the Grantor to pay (or cause to be paid), before any fine,
penalty, interest or cost may be added thereto all franchise taxes and charges,
and other governmental charges, general and special, ordinary and extraordinary,
unforeseen as well as foreseen, of any kind and nature whatsoever, including,
but not limited to, assessments for public improvements or benefits which are
assessed, levied, confirmed, imposed or become a lien upon
the Premises or any part thereof or become payable during the term of the Loan
Agreement or this Leasehold Deed of Trust or if the Grantor enters into any
agreement, either written or oral, which has the effect of deferring the payment
of any taxes or other charges which are or can be assessed, levied, confirmed,
imposed or become a lien on the Premises or any part thereof or become payable
during the term of the Loan Agreement or this Leasehold Deed of Trust; or (h)
except as may be expressly permitted under the terms and conditions of the Loan
Agreement, the further mortgage, pledge or encumbrance by the Grantor of the
Premises or any part thereof or any interest therein without in each instance
the prior written consent of the Beneficiary; or if any mortgage, pledge or
encumbrance affecting the Premises or any part thereof or interest therein
(whether prior or subordinate to the lien of this Leasehold Deed of Trust) shall
be amended, modified, refinanced, increased in amount, replaced or substituted
for, PROVIDED, HOWEVER, that nothing herein contained shall be deemed to permit
the Grantor to create, grant or suffer to exist any such mortgage, pledge, or
encumbrance; or (i) if a default occurs under any leasehold deed of trust which
is prior or subordinate to the lien of this Leasehold Deed of Trust (beyond the
applicable notice and grace period, if any) or the beneficiary under any such
prior or subordinate leasehold deed of trust commences a foreclosure or other
enforcement action in connection with said Leasehold Deed of Trust; or (j)
except as may be expressly permitted under the terms and conditions of the Loan
Agreement if the Premises, or any part thereof or interest therein, is sold,
transferred, assigned, conveyed, granted or alienated without in each instance
the prior written consent of the Beneficiary.
Section 3.2 REMEDIES.
(i) Upon the occurrence of any Event of Default, the Trustee
or the Beneficiary may, in addition to any rights or remedies available to it
hereunder, take inch action as it deems advisable to protect and enforce its
rights against the Grantor and in and to the Premises, 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 the Beneficiary may determine, in
its sole discretion, without impairing or otherwise affecting the other rights
and remedies of the Beneficiary: (1) declare the entire unpaid Indebtedness to
be immediately due and payable; or (2) enter into or upon the Premises, either
personally or by its agents, nominees or attorneys and dispossess the Grantor
and its agents and servants therefrom, and thereupon the Beneficiary or Trustee
may (a) use, operate, manage, control, insure, maintain, repair, restore and
otherwise deal with all sad every part of the Premises and conduct the business
thereat; (b) complete any construction on the Premises in such manner and form
as the Beneficiary deems advisable; (c) make alterations, additions, renewals,
replacements and improvements to or on the Improvements and the balance of the
Premises; (d) exercise all rights and powers of the Grantor with respect to the
Premises, whether in the name of the Grantor or otherwise, including, without
limitation, the right to make, cancel, enforce or modify leases, obtain and
evict tenants, and sue for, collect and receive all earnings, revenues, rents,
issues, profits and other income of the Premises and every part thereof; and (c)
apply the receipts from the Premises to the payment of the Indebtedness, after
deducting therefrom all expenses (including reasonable attorneys' fees and
disbursements) incurred in connection with the aforesaid operations and all
amounts necessary to pay the taxes, assessments, insurance and other charges in
connection with the Premises, as well as just and reasonable compensation for
the services of the Beneficiary or Trustee, its counsel, agents and employees;
or (3) institute proceedings for the complete foreclosure of this Leasehold Deed
of Trust in which case the Premises may be sold for cash or
credit in one or more parcels; or (4) with or without entry and, to the extent
permitted, and pursuant to the procedures provided by applicable law, institute
proceedings for the partial foreclosure of this Leasehold Deed of Trust for the
portion of the Indebtedness then due and payable, subject to the lien of this
Leasehold Deed of Trust continuing unimpaired and without loss of priority so as
to secure the balance of the Indebtedness not then due; or (5) institute an
action, suit or proceeding in equity for the specific performance of any
covenants, condition or agreement contained herein or in the Loan Agreement; or
(6) recover judgment on the Loan Agreement or any guaranty either before, during
or after or in lieu of any proceedings for the enforcement of this Leasehold
Deed of Trust; or (7) apply for the appointment of a trustee, receiver,
liquidator or conservator of the Premises, without regard for the adequacy of
the security for the Indebtedness and without regard for the solvency of the
Grantor, any guarantor or of any person, firm or other entity liable for the
payment of the Indebtedness to which appointment the Grantor does hereby
consent; or (8) sell the Premises, or any part thereof to the extent permitted
and pursuant to the procedures provided by the laws of the State in which the
Premises are located, and all estate, right, title and interest, claim and
demand therein, and right of redemption thereof; at one or more sales as an
entity or in parcels, and at such time and place upon such terms and after such
notice thereof as may be required by applicable law; or (9) pursue such other
remedies as the Beneficiary may have under applicable law. In the event of any
sale of the Premises under the terms of this Leasehold Deed of Trust, the
Grantor shall pay (in addition to taxable costs) a reasonable fee to the Trustee
which shall be in lieu of all other fees and commissions permitted by statute or
custom to be paid, reasonable attorneys' fees and all expenses incurred in
obtaining or continuing abstracts of title for the purpose of any such sale; or
(ii) The purchase money proceeds or avails of any sale made
under or by virtue of this ARTICLE III, together with any other sums which then
may be held by the Beneficiary or Trustee under this Leasehold Deed of Trust,
whether under the provisions of this ARTICLE III or otherwise, shall be applied
as follows:
First To the payment of the costs and expenses of any
such sale, or the costs and expenses of entering upon, taking
possession of; removal from, holding, operating and managing
the Premises or any part thereof, as the case may be,
including reasonable compensation to the Trustee and the
Beneficiary, its agents and counsel, and of any judicial
proceedings wherein the same may be made, and of all expenses,
liabilities and advances made or incurred by the Trustee or
the Beneficiary under this Leasehold Deed of Trust, together
with interest as provided herein on all advances made by the
Beneficiary and all taxes or assessments, except any taxes,
assessments or other charges subject to which the Premises
shall have been sold.
Second: To the payment of the whole amount then due,
owing or unpaid upon the Loan Agreement for principal and
interest with interest on the unpaid principal at the rate
herein specified from and after the happening of any Event of
Default from the due date of any such payment of principal
until the same is paid.
Third: To the payment of any other sums required to be
paid by the Grantor pursuant to any provision of this
Leasehold Deed of Trust or of the Loan Agreement.
Fourth: To the payment of the surplus, if any, to
whomsoever may be lawfully entitled to receive the same.
Except as may be otherwise provided by applicable law, no
purchaser of all or any part of the Premises shall be required
to see the proper application of the purchase money, proceeds
or avails of such sale.
The Beneficiary, the Trustee and any receiver of the Premises or any
part thereof shall be liable to account for only those rents, issues and profits
actually received by it.
(iii) The Trustee or the Beneficiary may adjourn from time to
time any sale by it to be made under or by virtue of this Leasehold Deed of
Trust by announcement at the time and place appointed for such sale or for such
adjourned sale or sales; and except as otherwise provided by any applicable
provision of law, the Trustee or the Beneficiary, without further notice or
publication, may make such sale at the time and place to which the same shall be
so adjourned.
(iv) Upon the completion of any sale or sales made by the
Trustee or the Beneficiary under or by virtue of this ARTICLE III, the Trustee,
or an officer of any court empowered to do so, 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. The Trustee is hereby
irrevocably appointed the true and lawful attorney-in-fact of the Grantor
(coupled with an interest), in its name and stead, to make all necessary
conveyances, assignments, transfers and deliveries of the Premises and rights so
sold, and for that purpose the Trustee may execute all necessary instruments of
conveyance, assignment and transfer, and may substitute one or more persons with
like power, the Grantor hereby ratifying and confirming all that its said
attorney or such substitute or substitutes shall lawfully do by virtue hereof.
Nevertheless, the Grantor, if so requested by the Trustee or the Beneficiary,
shall ratify and confirm any such sale or sales by executing and delivering to
the Trustee or to such purchaser or purchasers all such instruments as may be
advisable, in the judgment of the Trustee or the Beneficiary, for that purpose,
and as may be designated in such request. Any such sale or sales made under or
by virtue of this ARTICLE III, 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 the
Grantor in and to the properties and rights so sold, and shall be a perpetual
bar both at law and in equity against the Grantor and against any and all
persons claiming or who may claim the same, or any part thereof from, through or
under the Grantor.
(v) In the event of any sale made under or by virtue of this
ARTICLE III (whether made by virtue of judicial proceedings or of a judgment or
decree of foreclosure and sale), the entire Indebtedness, if not previously due
and payable, immediately thereupon shall, anything in the Loan Agreement or in
this Leasehold Deed of Trust to the contrary notwithstanding, become due and
payable.
(vi) Upon any sale made under or by virtue of this ARTICLE III
(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), the Beneficiary
may bid for and acquire the Premises or any part thereof or interest therein and
in lieu of paying ash therefor may make settlement for the purchase price by
crediting upon the Indebtedness of the Grantor secured by this Leasehold Deed of
Trust the net sales price after deducting therefrom the expenses of the sale and
the costs of the action and any other sums which the Beneficiary or Trustee is
authorized to deduct under this Leasehold Deed of Trust.
(vii) The Beneficiary shall be entitled to recover judgment as
aforesaid either before or after or during the pendency of any proceedings for
the enforcement of the provisions of this Leasehold Deed of Trust; and the right
of the Beneficiary to recover such judgment shall not be affected by any entry
or sale hereunder, or by the exercise of any right, power or remedy for the
enforcement of the provisions of this Leasehold Deed of Trust, or the
foreclosure of the lien hereof; and in the event of a sale of the Premises, or
any part thereof, and of the application of the proceeds of sale, as in this
Leasehold Deed of Trust provided, to the payment of the debt hereby secured, the
Beneficiary shall be entitled to enforce payment of, and to receive all amounts
then remaining due and unpaid upon, the Loan Agreement, and to enforce payment
of all other charges, payments and costs due under this Leasehold Deed of Trust,
and shall be entitled to recover judgment for any portion of the debt remaining
unpaid, with interest at the Post-Default Rate. In case of the commencement of
any case against the Grantor under any applicable bankruptcy, insolvency, or
other similar law now or hereafter in effect or any proceedings for its
reorganization or involving the liquidation of its assets, then the Beneficiary
shall be entitled to prove the whole amount of principal and interest due upon
the Loan Agreement to the full amount thereof; and all other payments, charges
and costs due under this Leasehold Deed of Trust, without deducting therefrom
any proceeds obtained from the sale of the whole or any part of the Premises,
PROVIDED, HOWEVER, that in no case shall, the Beneficiary receive a greater
amount than such principal and interest and such other payments, charges and
costs from the aggregate amount of the proceeds of the sale of the Premises and
the distribution from the estate of the Grantor.
(viii) No recovery of any judgment by the Beneficiary and no
levy of an execution under any judgment upon the Premises or upon any other
property of the Grantor shall affect in any manner or to any extent, the lien of
this Leasehold Deed of That upon the Premises or any pert thereof, or any liens,
rights, powers or remedies of the Beneficiary hereunder, but such liens, rights,
powers and remedies of the Beneficiary shall continue unimpaired as before.
(ix) It is understood and agreed that neither the assignment
of income, rents, royalties, revenue, issues, profits and proceeds to
Beneficiary nor the exercise by Beneficiary of any of its rights or remedies
under this Leasehold Deed of Trust shall be deemed to make Beneficiary a
"mortgagee-in-possession" or otherwise responsible or liable in any manner with
respect to the Premises or the use, occupancy, enjoyment or operation of all or
any portion thereof~ unless and until Beneficiary, in person or by agent,
assumes actual possession thereof, nor shall appointment of a receiver for the
Premises by any court at the request of Beneficiary or by agreement with Grantor
or the entering into possession of the Premises or any part thereof by such
receiver be deemed to make Beneficiary a "mortgagee-in-possession" or otherwise
responsible or liable in any manner with respect to the Premises or the use,
occupancy,
enjoyment or operation of all or any portion thereof.
Section 3.3 PAYMENT OF INDEBTEDNESS AFTER DEFAULT. Upon the
occurrence of any Event of Default and the acceleration of the maturity hereof,
if at any time prior to foreclosure sale, the Grantor or any other person
tenders payment of the amount necessary to satisfy the Indebtedness, the same
shall constitute an evasion of the payment terms hereof and/or of the Loan
Agreement and shall be deemed to be a voluntary prepayment hereunder, in which
case such payment must include the premium and/or fee required under the
prepayment provision, if any, contained herein, or in the Loan Agreement. This
provision shall be of no force or effect if at the time that such tender of
payment is made, the Grantor has the right under this leasehold Deed of Trust or
the Loan Agreement to prepay the Indebtedness without penalty or premium.
Section 3.4 POSSESSION OF THE PREMISES. Upon the occurrence of any
Event of Default hereunder, it is agreed that the Grantor, if it is the occupant
of the Premises or any part thereof, shall immediately surrender possession of
the Premises so occupied to the Beneficiary, and if the Grantor is permitted to
remain in possession, the possession shall be as a taunt of the Beneficiary and,
on demand, Grantor shall pay to the Beneficiary monthly, in advance, a
reasonable rental for the apace so occupied and in default thereof Grantor may
be dispossessed by the usual summary proceedings. The covenants herein contained
may be enforced by a receiver of the Premises or any part thereof. Nothing in
this SECTION 3.4 shall be deemed to be a waiver of the provisions of this
Leasehold Deed of Trust prohibiting the sale or other disposition of the
Premises without the Beneficiary's prior written consent.
Section 3.5 INTEREST AFTER DEFAULT. If any payment due hereunder or
under the Loan Agreement is not paid when due subject to any grace or notice
periods, whether on any stated due date, any accelerated due date or any other
date or at any other time specified under any of the terms hereof or thereof
then, and in such event, the Grantor shall pay interest on the entire
outstanding and unpaid principal balance of Indebtedness from and after the date
on which such payment first becomes due at the Post-Default Rate and such
interest shall be due and payable, on demand, at such rate until such Event of
Default shall have been cured or, if such Event of Default shall not have been
cured, until the entire amount due is paid to the Beneficiary and the other
Lenders, whether or not any action shall have been taken or proceeding commenced
to recover the same or to foreclose this Leasehold Deed of Trust. All unpaid and
accrued interest shall be secured by this Leasehold Deed of Trust as a part of
the Indebtedness. Nothing in this SECTION 3.5 or in any other provision of this
Leasehold Deed of Trust shall constitute an extension of the time of payment of
the Indebtedness.
Section 3.6 GRANTOR'S ACTIONS AFTER DEFAULT. After the happening of
any Event of Default and immediately upon the commencement of any action, suit
or other legal proceedings by the Trustee or the Beneficiary to obtain judgment
for the Indebtedness, or of any other nature in aid of the enforcement of the
Loan Agreement or of this Leasehold Deed of Trust, the Grantor will (i) waive
the issuance and service of process and enter its voluntary appearance in such
action, suit or proceeding, (ii) waive the right to trial by jury and (iii) if
required by the Beneficiary, consent to the appointment of a receiver or
receivers of the Premises and of all the earnings, revenues, rents, issues,
profits and income thereof.
Section 3.7 CONTROL BY BENEFICIARY AFTER DEFAULT. Notwithstanding
the appointment of any receiver, liquidator or trustee of the Grantor, or of any
of its property, or of the Premises or any part thereof, the Beneficiary shall
be entitled to retain possession and control of all property now and hereafter
covered by this Leasehold Deed of Trust.
ARTICLE IV
CONCERNING THE TRUSTEE
Section 4.8 ACCEPTANCE BY TRUSTEE. The Trustee, by its acceptance
hereof, covenants faithfully to perform and fulfill the trusts herein created,
being liable, however, only for willful negligence or misconduct, and hereby
waives any statutory fee and agrees to accept reasonable compensation, in lieu
thereof; for any services rendered by him in accordance with the terms hereof
Section 4.9 RESIGNATION OF TRUSTEE. The Trustee may resign at any
time upon giving thirty (30) days notice in writing to the Grantor and to the
Beneficiary.
Section 4.10 REMOVAL OF TRUSTEE.
(i) Beneficiary shall have the irrevocable power to remove
Trustee, and to appoint one or more additional or substitute trustees, without
notice and without specifying any reason therefor. Such power of appointment of
successor trustees may be exercised as often as and whenever Beneficiary deems
it advisable, and the exercise of such power of appointment, no matter how
often, shall not be an exhaustion thereof Grantor, for itself; its successors
and assigns, and Trustee herein named or that may be substituted hereunder,
expressly waives notice of the exercise of such power and any necessity of
making oath or giving bond of any Trustee hereunder. Upon the recordation of
such instrument or instruments of appointment, each trustee or trustees so
appointed shall thereupon without any further act or deed or conveyance become
fully vested with identically the same title and estate in and to the Premises,
and with all the rights, powers, trusts, and duties of their, his or its
predecessor in the trust hereunder, with like effect as if originally named
Trustee hereunder. No such substitute Trustee shall be required to give a bond
for the faithful performance of their, his or its duties unless required to do
so by the Beneficiary.
(ii) The term "Trustee" shall be construed to mean all persons
or entities from time to time acting as Trustee hereunder, whether the person or
entity named initially as Trustee, or one or more successors in the trust. All
title, estate, rights, powers, trusts and duties hereunder given, or
appertaining to or devolving upon Trustee shall be in each trustee hereunder so
that any action hereunder or purporting to be hereunder of the original, or any
successor, trustee shall for all purposes be considered to be, and as effective
as, the action of Trustee.
ARTICLE V
MISCELLANEOUS
Section 5.1 CREDITS WAIVED. The Grantor will not claim not demand
nor be entitled to any credit or credits against the Indebtedness for so much of
the taxes assessed against
the Premises or any part thereof, as is equal to the tax rate applied to the
amount due on this Leasehold Deed of Trust or any part thereof; and no
deductions shall otherwise be made or claimed from the taxable value of the
Premises or any part thereof by reason of this Leasehold Deed of Trust or the
Indebtedness secured hereby.
Section 5.2 NO RELEASES. The Grantor agrees, that in the event the
Premises (or any part thereof or interest therein) are sold and the Beneficiary
enters into any agreement with the then owner of the Premises extending the time
of payment of the Indebtedness, or otherwise modifying the terms hereof, the
Grantor shall continue to be liable to pay the Indebtedness according to the
tenor of any such agreement unless expressly released and discharged in writing
by the Beneficiary.
Section 5.3 NOTICES. All notices hereunder shall be in writing and
shall be deemed to have been sufficiently given or served for all purposes when
sent to any party hereto at its address above stated in accordance with the
terms and conditions of the Loan Agreement.
Section 5.4 BINDING OBLIGATIONS. The provisions and covenants of
this Leasehold Deed of Trust shall run with the land, shall be binding upon the
Grantor and shall inure to the benefit of the Beneficiary, subsequent holders of
this Leasehold Deed of Trust, and the respective successors and assigns of the
foregoing. For the purpose of this Leasehold Deed of Trust, the tam "Grantor"
shall include and refer to the Grantor named herein, any subsequent owners of
the Premises (or any part thereof or interest therein), and its respective
successors and assigns; the term "Loan Agreement" shall include and refer to the
Loan Agreement and any other evidence of the indebtedness secured by this
Leasehold Deed of Trust; and the term "Beneficiary" shall include and refer to
the Beneficiary named herein and its respective successors and assigns.
Section 5.5 LEGAL CONSTRUCTION. This Leasehold Deed of Trust shall
be governed by and construed and enforced in accordance with the local laws of
the State of New York; provided that the local laws of the State of California
shall apply with respect to the procedural aspects of foreclosure of the real
property encumbered hereby but in no event shall California Code of Civil
Procedure Sections 726 and/or 580(a) and/or 580(b) and/or 580(d) apply to any
such foreclosure or the right of the Beneficiary to obtain a deficiency judgment
following such foreclosure.
Nothing in this Leasehold Deed of Trust, the Loan Agreement or in
any other agrees rent between the Grantor and the Beneficiary shall require the
Grantor to pay, or the Beneficiary to accept, interest in an amount which would
subject the Beneficiary to any penalty or forfeiture under applicable law. In
the event that the payment of any charges, fees or other sums due hereunder or
under the Loan Agreement or any such other agreement which are or could be held
to be in the nature of interest and which would subject the Beneficiary to any
penalty or forfeiture under applicable law, then ipso facto the obligations of
the Grantor to make such payment shall be reduced to the highest rate authorized
under applicable law. Should the Beneficiary receive any payment which is or
would be in excess of the highest rate authorized under law, such payment shall
have been, and shall be deemed to have bean, made in error and shall
automatically be held by the Beneficiary as additional cash collateral for the
Indebtedness.
Section 5.6 CAPTIONS. The captions of the Sections of this Leasehold
Deed of Trust are for the purpose of convenience only and are not intended to be
a part of this Leasehold Deed of Trust and shall not be deemed to modify,
explain, enlarge or restrict any of the provisions hereof.
Section 5.7 FURTHER ASSURANCES. The Grantor shall do, execute,
acknowledge and deliver, at the sole cost and expense of the Grantor, all and
ever such further acts, deeds, conveyances, mortgages, assignments, estoppel
certificates, notices of assignment, transfers and assurances as the Beneficiary
or the Trustee may require from time to time in order to better assure, convey,
grant, assign, transfer and confirm unto the Beneficiary, the rights now or
hereafter intended to be granted to the Trustee under this Leasehold Deed of
Trust, any other instrument executed in connection with this Leasehold Deed of
Trust or any other instrument under which the Grantor may be or may hereafter
become bound to convey, mortgage or assign to the Trustee for carrying out the
intention of facilitating the performance of the terms of this Leasehold Deed of
Trust. The Grantor hereby appoints the Beneficiary and the Trustee its
attorney-in-fact to execute, acknowledge and deliver for and in the name of the
Grantor any and all of the instruments mentioned in this SECTION 5.7 and this
power, being coupled with an interest, shall be, irrevocable as long as any part
of the Indebtedness remains unpaid.
Section 5.8 SEVERABILITY. Any provision of this Leasehold Deed of
Trust which is prohibited or unenforceable in any jurisdiction or prohibited or
unenforceable as to any person or entity or circumstance shall, as to such
jurisdiction, person or entity or circumstance be ineffective to the extent of
such prohibition or unenforceability without invalidating the, remaining
provisions hereof or affecting the validity or enforceability of such provisions
in any other jurisdiction or as to any other person or entity or circumstance.
Section 5.9 ABSOLUTE AND UNCONDITIONAl OBLIGATION. The Grantor
acknowledges that the Grantor's obligation to pay the Indebtedness in accordance
with the provisions of the Loan Agreement and this Leasehold Deed of Trust is
and shall at all times continue to be absolute and unconditional in all
respects, and shall at all times be valid and enforceable irrespective of any
other agreements or circumstances of any nature whatsoever which might otherwise
constitute a defense to the Loan Agreement or this Leasehold Deed of Trust or
the obligation of the Grantor thereunder to pay the Indebtedness or the
obligations of any other person relating to the Loan Agreement or this Leasehold
Deed of Trust or the obligations of the Grantor under the Loan Agreement or this
Leasehold Deed of Trust or otherwise with respect to the loan secured hereby.
The Grantor absolutely, unconditionally and irrevocably waives any and all right
to assert any defense, setoff, counterclaim or crossclaim of any nature
whatsoever with respect to the obligation of the Grantor to pay the Indebtedness
in accordance with the provisions of the Loan Agreement and this Leasehold Deed
of Trust or the obligations of any other person relating to the Loan Agreement
or this Leasehold Deed of Trust or obligations of the Grantor under the Loan
Agreement or this Leasehold Deed of Trust or otherwise with respect to the loan
secured hereby, or in any action or proceeding brought by the Grantor to collect
the Indebtedness, or any portion thereof, or to enforce, foreclose and realize
upon the lien and Security interest created by this Leasehold Deed of Trust or
any other document or instrument securing repayment of the Indebtedness, in
whole or in part.
Section 5.10 GENERAL CONDITIONS.
(i) All covenants hereof shall be construed as affording to
the Beneficiary rights additional to and not exclusive of the rights :conferred
under the provisions of any other applicable law.
(ii) This Leasehold Deed of Trust cannot be altered, amended,
modified or discharged orally and no executory agreement shall be effective to
modify or discharge it in whole or in part, unless it is in writing and signed
by the party against whom enforcement of the modification, alteration, amendment
or discharge is sought. The Mortgagor acknowledges that the Loan Agreement and
this Mortgage and the other documents and instruments executed and delivered in
connection therewith or otherwise in connection with the loan secured hereby set
forth the entire agreement and understanding of the Mortgagor and the Mortgagee
with respect to the loan secured hereby and that no oral or other agreements,
understanding, representation or warranties exist with respect to the loan
secured hereby other than those set forth in the Loan Agreement, this Mortgage
and such other executed and delivered documents and instruments.
(iii) No remedy herein conferred upon or reserved to the
Beneficiary is intended to be exclusive of any other. remedy or remedies, and
each and every such remedy shall be cumulative, and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute. No delay or omission of the Beneficiary in exercising any
right or power accruing upon any Event of Default shall impair any such right or
power, or shall be construed to be a waiver of any such Event of Default, or any
acquiescence therein. Acceptance of any payment (other than a monetary payment
in cure of a monetary default) after the occurrence of an Event of Default shall
not be deemed a waiver of or a cure of such Event of Default and every power and
remedy given by this Leasehold Deed of Trust to the Beneficiary may be exercised
from time to time as often as may be deemed expedient by the Beneficiary.
Nothing in this Leasehold Deed of Trust or in the Loan Agreement shall limit or
diminish the obligation of the Grantor to pay the Indebtedness in the manner and
at the time and place therein respectively expressed.
(iv) No waiver by the Beneficiary will be effective unless it
is in writing and then only to the extent specifically stated. Without limiting
the generality of the foregoing, any payment made by the Beneficiary for
insurance premiums, taxes, assessments, water rates, sewer rentals, levies, fees
or any other charges affecting the Premises, shall not constitute a waiver of
the Grantor's default in making such payments and shall not obligate the
Beneficiary to make any further payments.
(v) The Beneficiary shall have the right to appear in and
defend any action or proceeding, in the name and on behalf of the grantor which
the Beneficiary, in its reasonable discretion, feels may adversely affect the
Premises or this Leasehold Deed of Trust. The Beneficiary shall also have the
right to institute any action or proceeding which the Beneficiary, in its
discretion, feels should be brought to protect its interest in the Premises or
its rights hereunder. All costs and expenses incurred by the Beneficiary in
connection with such actions or proceedings, including, without limitation,
reasonable attorneys' fees and expenses and appellate attorneys' fees and
expenses, shall be paid by the Grantor on demand and shall be secured by this
Leasehold Deed of Trust.
(vi) In the event of the passage after the date of this
Leasehold Deed of Trust of any law of any governmental authority having
jurisdiction hereof or the Premises, deducting from the value of land for the
purpose of taxation, affecting any lien thereon or changing in any way the laws
for the taxation of mortgages or debts secured by mortgages for federal, state
or local purposes, or the manner of the collection of any such taxes, so as to
affect this Leasehold Deed of Trust, the Grantor shall promptly pay to the
Beneficiary, on demand, all taxes, costs and charges for which the Beneficiary
is or may be liable as a result thereof; provided that if said payment shall be
prohibited by law, render the Loan Agreement usurious or subject the Mortgagee
to any penalty or forfeiture, then and in such event the Indebtedness shall, at
the option of the Mortgagee, be immediately due and payable.
(vii) The Grantor hereby appoints the Beneficiary as its
attorney-in-fact in connection with the personal property and fixtures covered
by this Leasehold Deed of Trust, where permitted by law, to file on its behalf
any financing statements or other statements in connection therewith with the
appropriate public office. This power, being coupled with an interest, shall be
irrevocable so long as any part of the Indebtedness remains unpaid.
(viii) If the Beneficiary purchases the Premises pursuant to a
trustee's sale or a foreclosure under this Leasehold Deed of Trust, or accepts a
deed to the Premises in lieu of a trustee's sale or a foreclosure, the Grantor
hereby authorizes the Beneficiary to withhold the amount of tax, if any,
required to be withheld under Section 1445 of the Internal Revenue Code of 1986,
as amended (or any successor provision thereto), out of any sums payable to the
Grantor from such foreclosure sale or assignment in lieu thereof, as the case
may be, after payment of all parties other than the Grantor who are entitled to
be paid out of any foreclosure or assignment proceeds, as if the Grantor were a
foreign person, unless the Grantor certifies its nonforeign status at the time
of such foreclosure sale or assignment, as the case may be, by executing and
delivering to the Beneficiary a certificate satisfactory to the teary.
(ix) The information set forth on the cover hereof is hereby
incorporated
(x) The Grantor acknowledges that it has received a true copy
of this Leasehold Deed of Trust provided without charge.
(xi) For purposes of this Leasehold Deed of Trust, whenever
the circumstances or the context of this Leasehold Deed of Trust so requires,
the singular shall be construed as the plural, the masculine shall be construed
as the feminine and/or the neuter and vice versa.
(xii) The Beneficiary is hereby irrevocably authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) other than tenant security accounts at any time held or other
indebtedness any time owing by the Beneficiary to or for the credit or the
account of the Grantor against any and all of the obligations of the Grantor now
or her after existing under this Leasehold Deed of Trust and/or Loan Agreement.
The Beneficiary agrees promptly to notify the Grantor after any such set-off and
application, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of the
Beneficiary under this paragraph are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which the Beneficiary
may have.
(xiii) If at any time the Mortgagor believes that the
Mortgagee has not acted reasonably in granting or withholding any approval or
consent under the Loan Agreement, this Mortgage or any other document or
instrument now or hereafter executed and delivered in connection therewith or
otherwise with respect to the loan secured hereby, as to which approval or
consent either the Mortgagee has expressly agreed to act reasonably, or absent
such agreement, a court of law having jurisdiction over the subject matter would
require the Mortgagee to act reasonably, then the Mortgagor's sole remedy shall
be to seek injunctive relief or specific performance and no action for monetary
damages or punitive damages shall in any event or under any circumstances be
maintained by the Mortgagor against the Mortgagee.
Section 5.11 MULTIPLE REAL ESTATE TRANSACTION. Xxxxxxx acknowledges
that this Leasehold Deed of Trust is one of a number of other deeds of trust,
mortgages and assignments of leases and rents and other security documents
(hereinafter collectively the "Financing Agreements") which secure the
Indebtedness in whole or in part Grantor specs that the liar of this Leasehold
Deed of Trust shall be absolute and unconditional and shall not in any manner be
affected or impaired by any acts or omissions whatsoever of Beneficiary and,
without limiting the generality of the foregoing the lien hereof shall not be
impaired by any acceptance by Beneficiary of any security for or guarantors upon
any of the Indebtedness or by any failure, neglect or omission on the part of
Beneficiary to realize upon or protect any of the Indebtedness or any collateral
security therefor including the Financing Agreements. The lien hereof shall not
in any manner be impaired or affected by any release (except as to the property
released), sale, pledge, surrender, compromise, settlement, renewal, extension,
indulgence, alteration, changing, modification or any disposition of any of the
Indebtedness or of any of the collateral security therefor, including the
Financing Agreements or of any guarantee thereof. Trustee or Beneficiary may, at
its discretion, foreclose, exercise any power of sale or exercise any other
remedy available to it under any or all of the Financing Agreements without
first exercising or enforcing any of its rights and remedies hereunder, or may
foreclose, or exercise any power of sale, or exercise any other right available
under this Leasehold Deed of Trust without first exercising or enforcing any of
its rights and remedies under any or all of the Financing Agreements. Such
exercise of Beneficiary's rights and remedies under any or all of the Financing
Agreements shall not in any manner impair the Indebtedness or lien of the
Leasehold Deed of Trust, and any exercise of the rights or remedies of
Beneficiary hereunder shall not impair the lien of any of the Financing
Agreements or any of Beneficiary's rights and remedies thereunder. Grantor
specifically consents and agrees that Beneficiary may exercise its rights and
remedies hereunder and under the Financing Agreements separately or concurrently
and in any order that Beneficiary may deem appropriate.
Section 5.12 LOAN AGREEMENT PARAMOUNT. If and to the extent that any
provisions of this Leasehold Deed of Trust conflict or are otherwise
inconsistent with any provisions of the Loan Agreement, the provisions of the
Loan Agreement shall prevail.
ARTICLE VI
CERTAIN MATTERS RELATING TO THE LEASEHOLD ESTATE LOCATED IN THE STATE OF
CALIFORNIA. With respect to the Trust Property which is located in the State of
California:
Section 6.13 Grantor shall pay and perform the Obligations at the
times and places and in the manner specified in the Loan Agreement. This Deed of
Trust shall secure unpaid balances of all loans and other such extensions of
credit made after this Deed of Trust is recorded, whether made pursuant to an
obligation of Beneficiary to make such loans or extensions or otherwise. Such
loans and other extensions of credit may or may not be evidenced by notes
executed pursuant to the Loan Agreement or the other Financing Agreements. All
future advances will have the same priority as the original advance. Any
agreement hereafter made by Grantor and Trustee or Beneficiary pursuant to this
Deed of Trust shall be superior to the rights of the holder of any intervening
lien or encumbrance to the extent allowed by law.
Section 6.14 In the event of damage to or destruction of the Trust
Property from any cause actually covered under insurance maintained by Grantor
hereunder, then Beneficiary shall make available to Grantor the net insurance
proceeds available as a result of such damage or destruction (after deducting
costs and expenses incurred by Beneficiary in connection with the settlement or
recovery of any proceeds) for use by Grantor, in the reconstruction and repair
of the damaged improvements to the condition approved by Beneficiary, on the
terms and conditions hereafter set forth in Section 2.6. In the event any of the
conditions to Xxxxxxx's right to utilize the net proceed hereunder are not
satisfied or fulfilled at any time, then such net proceeds shall be applied as
provided in Section 2.4 hereof with respect to insurance proceeds and Section
2.11 hereof with respect to condemnation proceeds. Any net proceed not disbursed
under this Section 6.2 shall be disbursed in accordance with Section .24 hereof
with respect to insurance proceeds and Section 2.11 hereof with respect to
condemnation proceeds.
Section 6.15 It is the intent of Grantor and Beneficiary in the
execution of this Deed of Trust and all other instruments evidencing or securing
the Obligations to contract in strict compliance with the relevant usury laws.
In furtherance thereof, Beneficiary and Grantor stipulate and agree that none of
the terms and provisions contained in this Deed of Trust shall ever be construed
to create a contract for the use, forbearance or detention of money requiring
payment of interest at a rate in excess of the maximum interest rate permitted
to be charged by relevant law.
Section 6.16 Upon foreclosure of this Deed of Trust or exercise of
the power of sale granted herein, if Trustee so elects, Trustee may sell the
Trust Property at one or more separate sales in any manner permitted by
applicable California law, and the exercise of the powers herein granted shall
not extinguish or exhaust such powers, until the entire Trust Property is sold
or the entire indebtedness secured hereby is paid in full. In addition,
Beneficiary may sell the Equipment that may be assembled for such sale by
Beneficiary on the Land or elsewhere, in the sole discretion of Beneficiary.
Nothing in this Section dealing with foreclosure procedures which specifies any
particular action to be taken by Trustee or Beneficiary shall be deemed to
contradict the requirements and procedures (now or hereafter existing) of
California law, and any such contradiction shall be resolved in favor of
California law applicable at the time of foreclosure.
Section 6.17 If Beneficiary shall for any reason desire to remove
the Trustee or any of his successors as Trustee hereunder, and to appoint a new
Trustee in his place or stead,
Beneficiary shall have and is hereby granted full power and authority to remove
the Trustee and to appoint his successor by instrument in writing, duly
acknowledged or proved so as to entitle the same to be recorded and such new
Trustee shall thereupon become successor to the title to the Trust Property and
the same shall become vested in him in trust for the purposes and objects of
these presents, with all the power, duties and obligations herein conferred on
the Trustee, in the same manner and to the same effect as though he or it were
named herein as Trustee.
Section 6.18 All Trust property acquired by Grantor after the date
of this Deed of Trust which by its terms of this Deed of Trust shall be subject
to the lien and security interest created hereby, shall immediately upon the
acquisition thereof by Grantor and without further mortgage, conveyance or
assignment become subject to the lien and security interest created by this Deed
of Trust. Nevertheless, Grantor shall execute, acknowledge, deliver and record
or file, as appropriate, all and every such mortgages, security agreements,
financing statements, assignments and assurances as Beneficiary shall require
for accomplishing the purposes of this Deed of Trust.
Section 6.19 Trustee accepts this Trust when this Deed of Trust,
xxxx executed and acknowledged, is made a public record as provided by law.
Section 6.20 From time to time upon written request of Beneficiary
and presentation of this Deed of Trust for endorsement, and without affecting
the liability of any person or entity for payment of any indebtedness or
performance of the Obligations secured hereby, Trustee may, without liability
therefor and without notice reconvey all or any part of the Property; consent to
the making of any map or plat thereof; join in granting any easement thereon;
join in any declaration of covenants and restrictions; or join in any extension
agreement or any agreement subordinating the lien or charge hereof. Trustee (or
Beneficiary) may from time to time apply in any court of competent jurisdiction
for aid and direction in the execution of the trusts and the enforcement of the
rights and remedies available hereunder, and Trustee (or Beneficiary) may obtain
orders or decrees directing, confirming or approving acts in the execution of
such trusts and the enforcement of such remedies. All costs and expenses of any
such proceeding (including reasonable attorneys' fees) shall be borne by
Grantor. Trustee shall not be obligated to notify any party of any pending sale
of the Property, or any portion thereof, under any other deed of trust or
otherwise, or of any action or proceeding in which Grantor, Beneficiary or
Trustee shall be a party, unless Trustee or Beneficiary brings such action or
unless held or commenced and maintained by Trustee or Beneficiary under this
Deed of Trust. Grantor shall pay to Trustee reasonable compensation and
reimbursement for all services and expenses in the administration of the trusts
created hereunder, including reasonable attorneys' fees.
Section 6.21 Upon Beneficiary's written request, and upon surrender
to Trustee for cancellation of this Deed of Trust and any note or instruments
setting forth all obligations secured hereby, Trustee shall reconvey, without
warranty, the Trust Property, or that portion thereof then held hereunder. To
the extent permitted by law, the reconveyance may describe the grantee as "the
person or persons legally entitled thereto." Neither Beneficiary nor Trustee
shall have any duty to determine the rights of persons claiming to be rightful
grantees of any reconveyance. When the Trust Property has been fully reconveyed,
the last such reconveyance shall operate as a reassignment of all future rents,
issues and profits of the Trust Property to the person or persons legally
entitled thereto, unless such reconveyance expressly provides to the
contrary.
Section 6.22 Subject to the terms of the Loan Agreement, if Grantor
shall fail, refuse or neglect to make any payment or perform any act required by
this Deed of Trust or the other Financing Agreements, then at any time
thereafter, and without notice to or demand upon Grantor, other than as same may
be provided for in this Deed of Trust, and without waiving or releasing any
other right, remedy or recourse, Beneficiary may have because of same,
Beneficiary may (but shall not be obligated to) make such payments or perform
such act for the account of and at the expense of Grantor, and shall have the
right to enter the Land and Improvements for such purpose and to take all such
action thereon and with respect to the Trust Property as it may deem necessary
or appropriate. If Beneficiary shall elect to pay any Taxes or Charges or other
sums due with reference to the Trust Property, Beneficiary may do so in reliance
on any bill, statement or assessment procured from the appropriate governmental
authority or other issuer thereof without inquiring into the accuracy or
validity thereof. Similarly, in making any payments to protect the security
intended to be created by the Financing Agreements, Beneficiary shall not be
bound to inquire into the validity of any apparent or threatened adverse title,
lien, encumbrance, claim, or charge before making an advance for the purpose of
preventing or removing the same. Grantor shall indemnify Beneficiary for all
losses, expenses, damages, claims and causes of action, including attorneys'
fees, incurred or accruing by reason of any acts performed by Beneficiary
pursuant to the provisions of this Section 6.10 or by reason of any other
provision in the other Financing Agreements. All sums paid by Beneficiary
pursuant to this Section 6.10, and all other sums expended by Beneficiary to
which it shall be entitled to be indemnified, together with interest or
expenditure, shall constitute additions to the Obligations, shall be secured by
the liens, security interests and rights created by this Deed of Trust or the
other Financing Agreements and shall be paid by Grantor to Beneficiary upon
demand.
Section 6.23 All Obligations contained in this Deed of Trust are
intended by the parties to be, and shall be construed as, covenants running with
the Trust Property.
Section 6.24 Grantor agrees, to the full extent permitted by law,
that, in case of the occurrence and during the continuation of an Event of
Default on the part of Grantor hereunder, neither Grantor nor anyone claiming
through or under Grantor will set up, claim or seek to take advantage of any
moratorium, reinstatement, forbearance, appraisement, valuation, stay,
extension, homestead, exemption, insolvency or redemption laws now or hereafter
in force in order to prevent or hinder the enforcement or foreclosure of the
Deed of Trust or the absolute sale of the Trust Property, the delivery of
possession thereof immediately after such sale to the purchaser at such sale, or
the exercise of any other remedy hereunder; and Grantor, for itself and all who
may to any extent that it may lawfully so do, waive the benefit of all such
laws, and any and all right to have assets subject to the security interest of
the Deed of Trust marshalled upon any foreclosure or sale under the power herein
granted or a sale in inverse order of alienation.
Section 6.25 Each and all of the Obligations shall survive the
execution and delivery of this Deed of Trust and the other Financing Agreements,
and the consummation of the loans and financial accommodations called for
therein, and shall continue in full force and effect until the Obligations shall
have been indefeasibly paid in full; PROVIDED, HOWEVER, that nothing contained
in this Section 43(m) shall limit the obligations of Grantor which are to
continue after
indefeasible payment in full of the Obligations where so stated in this Deed of
Trust.
Section 6.26 Time is of the essence with respect to each and every
covenant, agreement and obligation of Grantor under this Deed of Trust.
Section 6.27 If any or all of the proceeds of the loans and other
financial accommodations made and extended under the Loan Agreement or the other
Financing Agreements have been used to extinguish, extend or renew any
indebtedness previously existing against the Trust Property, then, to the extent
of such funds so used, Beneficiary shall be subrogated to all of the rights,
claims, liens, titles and interests heretofore existing against the Trust
Property to secure the indebtedness so extinguished, extended or renewed, and
the former rights, claims, liens, titles and interests, if any, are not waived,
but rather, are continued in full force and effect in favor of Beneficiary and
are merged with the lien and security interest created herein as cumulative
security for the repayment and satisfaction of the Obligations.
Section 6.28 No portion of the indebtedness secured by this Deed of
Trust shall be or be deemed to be offset or compensated by all or any part of
any claim, cause of action, counterclaim, or cross-claim, whether liquidated or
unliquidated, which Grantor may have or claim to have against Beneficiary.
Grantor waives, to the fullest extent permitted by applicable law, the benefits
of California Code of Civil Procedure section 431.70, which provides:
"Where cross-demands for money have existed between persons at any point
in time when neither demand was barred by the statute of limitations, and
an action is thereafter commenced by one such person, the other person may
assert in the answer the defense of payment in that the two demands are
compensated so far as they equal each other, notwithstanding that an
independent action asserting the person's claim would at the time of
filing the answer be barred by the statute of limitations. If the
cross-demand would otherwise be barred by the statute of limitations, the
relief accorded under this section shall not exceed the value of the
relief granted to the other party. The defense provided by this section is
not available if the cross-demand is barred for failure to assert it in a
prior action under Section 426.30. Neither person can be deprived of the
benefits of this section by the assignment or death of the other. For the
purposes of this section, a money judgment is a "demand for money" and, as
applied to a money judgment, the demand is barred by the statute of
limitations when enforcement of the judgment is barred under Chapter 3
(commencing with Section 683.010) of Division I of Title 9."
Section 6.29 Grantor hereby authorizes and empowers Beneficiary in
its sole discretion, without any notice or demand and without affecting the lien
and charge of this Deed of Trust, to exercise any right or remedy which
Beneficiary may have available to it, including, but not limited to, judicial
foreclosure, exercise of rights of power of sale without judicial action as to
any collateral security for the Obligations, whether real, personal or
intangible property. Grantor expressly waives any defense or benefits that may
be available under California Code of Civil Procedure Section 580 and in its
subdivisions, Section 726, or comparable provisions of the laws of any other
state, as well as all surety defenses that Grantor may have under California
;law and the laws of any other state. Without limiting the foregoing, Grantor
specifically agrees that any action maintained by Beneficiary for the
appointment of any receiver, trustee or custodian to collect rents, issues or
profits or to obtain possession of the Trust Property shall not constitute an
"action" within the meaning of Section 726 of the California Code of Civil
Procedure.
Section 6.30 Grantor represents that no part of the Trust Property
constitutes residential homestead.
Any inconsistency or conflict between this Article VI and any other provisions
or terms contained herein shall be construed in favor of and governed by this
Article VI
IN WITNESS WHEREOF, this Leasehold Deed of Trust, Assignment of
Rents and Security Agreement has been duly executed by the Grantor as of the
date first above written.
TRUSTOR PLEASE NOTE: IN THE EVENT OF YOUR DEFAULT, THIS DEED OF
TRUST AND APPLICABLE LAW PERMIT THE TRUSTEE TO SELL THE TRUST PROPERTY AT A SALE
HELD WITHOUT SUPERVISION BY ANY COURT AFTER EXPIRATION OF A PERIOD PRESCRIBED BY
LAW. UNLESS YOU PROVIDE AN ADDRESS FOR THE GIVING OF NOTICE, YOU MAY NOT BE
ENTITLED TO OTHER NOTICE OF THE COMMENCEMENT OF SALE PROCEEDINGS. BY EXECUTION
OF THIS DEED OF TRUST, YOU CONSENT TO THIS PROCEDURE. IF YOU HAVE ANY QUESTIONS
CONCERNING IT, YOU SHOULD CONSULT YOUR LEGAL ADVISOR. BENEFICIARY AND TRUSTEE
URGE YOU TO GIVE BENEFICIARY PROMPT NOTICE OF ANY CHANGE IN YOUR ADDRESS SO THAT
YOU MAY RECEIVE ANY NOTICE OF DEFAULT AND NOTICE OF SALE GIVEN PURSUANT TO THIS
DEED OF TRUST.
ATTEST: GRANTOR:
FMI INTERNATIONAL LLC
___________________________ By: ________________________
Name: Name: _________________
Title: _________________
WITNESSES:
___________________________
Name: _____________________
___________________________
Name: _____________________
ACKNOWLEDGMENT
STATE OF____________________)
)ss..
COUNTY OF___________________)
On the _______ day of October 2006, before me, __________________________,
Notary Public, personally appeared ____________________, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal
_________________________________
SIGNATURE [seal]
SCHEDULE A
DESCRIPTION OF LEASES
Land and Building Lease Agreement, dated to be effective as of July 20, 2004, by
and between Thrifty Oil Co., as Landlord and FMI International LLC, as Tenant
CALIFORNIA
Riverside County
SCHEDULE B
That certain real property located at and commonly known as 0000 Xxxxxx
Xxxxx, Xxxx Xxxx, Xxxxxxxxxx, and more particularly described as follows:
PARCELS 14 THROUGH 19, INCLUSIVE OF PARCEL MAP NO. 26365 IN THE COUNTY OF
RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 172, PAGES 36
THOUGH 41 INCLUSIVE, OF PARCEL MAPS, IN THE OFFICE OF THE RIVERSIDE COUNTY
RECORDER.
EXCEPTING THEREFROM ALL MINERALS, OIL, GAS AND OTHER HYDROCARBON SUBSTANCES,
TOGETHER WITH THE RIGHT TO EXPLORE FOR, DEVELOP, PRODUCE AND EXTRACT THE SAME,
BUT WITHOUT THE RIGHT OF ENTRY UPON THE SURFACE OF SAID REAL PROPERTY OR ANY
PORTION OF SAID REAL PROPERTY ABOVE A PLANE 500 FEET BELOW THE PRESENT SURFACE
OF SAID REAL PROPERTY, AND IN SUCH A MANNER AS NOT TO DAMAGE THE SURFACE OF SAID
REAL PROPERTY, AS RESERVED BY XXXXX X. XXXXXXXXXX, A MARRIED MAN, BY DEED
RECORDED JANUARY 29, 1968 AS INSTRUMENT NO. 8206, OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM ALL MINERALS, OIL, GAS AND OTHER HYDORCARBON
SUBSTANCES, TOGETHER WITH THE RIGHT TO EXPLORE FOR, DEVELOP, PRODUCE AND EXTRACT
THE SAME, BUT WITHOUT THE RIGHT OF ENTRY UPON THE SURFACE OF SAID REAL PROPERTY
OR ANY PORTION OF SAID REAL PROPERTY ABOVE A PLANE 500 FEET BELOW THE PRESENT
SURFACE OF SAID REAL PROPERTY, AND IN SUCH A MANNER AS NOT TO DAMAGE THE SURFACE
OF SAID REAL PROPERTY, AS RESERVED BY XXXX X. XXXXXXX, AN UNMARRIED MAN, BY DEED
RECORDED JANUARY 29, 1968 AS INSTRUMENT NO. 8207, OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM TO THE EXTENT NOT RESERVED BY XXXXX X. XXXXXXXXXX,
MARRIED MAN, BY DEED RECORDED JANUARY 29, 1968 AS INSTRUMENT NO. 8206 OFFICIAL
RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, OR BY XXXX X. XXXXXXX, AN UNMARRIED
MAN, BY DEED RECORDED JANUARY 29, 1968, AS INSTRUMENT NO. 8207 OFFICIAL RECORDS
OF RIVERSIDE COUNTY, CALIFORNIA, ALL MINERALS AND ALL MINERAL RIGHTS OF EVERY
KIND AND CHARACTER NOW KNOWN TO EXIST OR HEREAFTER DISCOVERED, INCLUDING,
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OIL AND GAS ANY RIGHTS THERETO
TOGETHER WITH THE SOLE, EXCLUSIVE AND PERPETUAL RIGHT TO EXPLORE FOR, REMOVE AND
DISPOSE OF, SAID MINERALS BY MEANS OR METHODS SUITABLE TO GRANTOR, ITS
SUCCESSORS AND ASSIGNS, BUT WITHOUT ENTERING UPON OR USING THE SURFACE OF THE
LANDS HEREBY CONVEYED, AND IN SUCH MANNER AS NOT TO DAMAGE THE SURFACE OF SAID
LANDS OR TO INTERFERE WITH THE USE THEREOF BY GRANTEE, ITS
SUCCESSORS OR ASSIGNS, PROVIDED, HOWEVER, THAT GRANTOR, ITS SUCCESSORS OR
ASSIGNS, WITHOUT THE PRIOR WRITTEN PERMISSION OF GRANTEE, ITS SUCCESSORS OK
ASSIGNS, SHALL NOT CONDUCT ANY MINING ACTIVITIES OF WHATSOEVER NATURE ABOVE A
PLANE OF FIVE HUNDRED FEET (500') BELOW THE SURFACE OF THE LANDS AS RESERVED BY
UPLAND INDUSTRIES CORPORATION, A NEVADA CORPORATION BY DEED RECORDED MAY 1,1990
AS INSTRUMENT NO. 90-158886 OFFICIAL RECORDS.
SAID PARCELS WERE MERGED BY RIVERSIDE COUNTY PLANNING DEPARTMENT CERTIFICATE OF
PARCEL MERGER NO. 1242, RECORDED _APRIL 15, 2001 AS INSTRUMENT NO. 01-158266
OFFICIAL RECORDS.
APN: 156-360-012-2 (AFFECTS: PARCEL 14), 156-360-013-3 (AFFECTS: PARCEL 15) AND
156-360-016-6 (AFFECTS PARCELS 16 THROUGH 19)
