Exhibit 10.316
TITLE OF DOCUMENT: DEED OF TRUST, SECURITY AGREEMENT AND ASSIGNMENT
OF RENTS
DATE OF DOCUMENT: AUGUST 24, 2004
*GRANTOR(S): INLAND WESTERN TOWN AND COUNTRY MANCHESTER,
L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
*GRANTEE(S): PRINCIPAL LIFE INSURANCE COMPANY, AN IOWA
CORPORATION
GRANTEE(S) MAILING ADDRESS: C/O PRINCIPAL REAL ESTATE INVESTORS, LLC AT
000 XXXXX XXXXXX, XXX XXXXXX, XXXX 00000-0000
LEGAL DESCRIPTION: SEE EXHIBIT A ATTACHED HERETO
REFERENCE BOOK AND PAGE(S) NOT APPLICABLE
*FOR INDEXING PURPOSES ONLY
DEED OF TRUST, SECURITY AGREEMENT
AND ASSIGNMENT OF RENTS
LOAN NO. 754044
THIS INSTRUMENT SECURES, AMONG OTHER THINGS, FUTURE ADVANCES AND
FUTURE OBLIGATIONS PURSUANT TO, AND IS TO BE GOVERNED BY THE
PROVISIONS OF, SECTION 443.055 OF THE REVISED STATUTES OF MISSOURI. THE
TOTAL PRINCIPAL AMOUNT OF THE FUTURE ADVANCES AND FUTURE
OBLIGATIONS THAT MAY BE SECURED HEREBY IS $62,000,000.
A. THIS DEED OF TRUST (as the same may from time to time hereafter be
modified, supplemented or amended, this "DEED OF TRUST") is made as of August
________, 2004, by and between INLAND WESTERN TOWN AND COUNTRY MANCHESTER,
L.L.C., a Delaware limited liability company, having its principal place of
business and post office address at 0000 Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx
00000, as "BORROWER" ("Borrower" to be construed as "Borrowers" if the context
so requires), XXXXX X. XXXXXX, whose address is Xxxxx, Xxxx & Xxxxxxxx, X.X.,
0000 Xxxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxxxxxx 00000, as "TRUSTEE", and PRINCIPAL
LIFE INSURANCE COMPANY, an Iowa corporation, having a principal place of
business and post office address c/o Principal Real Estate Investors, LLC at 000
Xxxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000-0000, as "LENDER".
WITNESSETH:
B. Borrower is justly indebted to Lender for money borrowed (the "LOAN") in
the original principal sum of Thirty One Million Sixty Four Thousand Five
Hundred Fifty and No/100 Dollars ($31,064,550.00) (the "LOAN AMOUNT") evidenced
by Borrower's secured promissory note of even date herewith, made payable and
delivered to Lender, (as may be modified, amended, supplemented, extended or
consolidated in writing and any note(s) issued in exchange therefor or
replacement thereof) (the "NOTE") in which Note Borrower promises to pay to
Lender the Loan Amount, together with all accrued and unpaid interest thereon,
interest accrued at the Default Rate (if any), Late Charges (if any), the Make
Whole Premium (if any), and all other obligations and liabilities due or to
become due to Lender pursuant to the Loan Documents and all other amounts, sums
and expenses paid by or payable to Lender pursuant to the Loan Documents and the
Environmental Indemnity (collectively the "INDEBTEDNESS") until the Indebtedness
has been paid, but in any event, the unpaid balance (if any) remaining due on
the Note shall be due and payable on September 1, 2007 or such earlier date
resulting from the acceleration of the Indebtedness by Lender (the "MATURITY
DATE"). Capitalized terms used herein and not otherwise defined shall have those
meanings given to them in the other Loan Documents.
C. NOW, THEREFORE, to secure the payment of the Indebtedness in accordance
with the terms and conditions of the Loan Documents, and all extensions,
modifications, and renewals
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thereof and the performance of the covenants and agreements contained therein,
and also to secure the payment of any and all other Indebtedness, direct or
contingent, that may now or hereafter become owing from Borrower to Lender in
connection with the Loan Documents, and in consideration of the Loan Amount in
hand paid, receipt of which is hereby acknowledged, Borrower does by these
presents GRANT, BARGAIN AND SELL, CONVEY, CONFIRM AND WARRANT, IN TRUST WITH
POWER OF SALE unto Trustee, its successors and assigns forever, that certain
real estate and all of Borrower's estate, right, title and interest therein,
located in the county of St. Louis, state of Missouri, more particularly
described in EXHIBIT A attached hereto and made a part hereof (the "LAND"),
which Land, together with the following described property, rights and
interests, is collectively referred to herein as the "PREMISES".
D. Together with Borrower's interest as lessor in and to all Leases and all
Rents, which are pledged primarily and on a parity with the Land and not
secondarily.
E. Together with all and singular the tenements, hereditaments, easements,
appurtenances, passages, waters, water courses, riparian rights, sewer rights,
rights in trade names, licenses, permits and contracts and all other rights,
liberties and privileges of any kind or character in any way now or hereafter
appertaining to the Land, including but not limited to, homestead and any other
claim at law or in equity as well as any after-acquired title, franchise or
license and the reversion and reversions and remainder and remainders thereof.
F. Together with the right in the case of foreclosure hereunder of the
encumbered property for Lender to take and use the name by which the buildings
and all other improvements situated on the Premises are commonly known and the
right to manage and operate the said buildings under any such name and variants
thereof.
G. Together with all right, title and interest of Borrower in any and all
buildings and improvements of every kind and description now or hereafter
erected or placed on the said Land and all materials intended for construction,
reconstruction, alteration and repairs of such buildings and improvements now or
hereafter erected thereon, all of which materials shall be deemed to be included
within the Premises immediately upon the delivery thereof to the Premises, and
all fixtures now or hereafter owned by Borrower and attached to or contained in
and used in connection with the Premises including, but not limited to, all
machinery, motors, elevators, fittings, radiators, awnings, shades, screens, and
all plumbing, heating, lighting, ventilating, refrigerating, incinerating,
air-conditioning and sprinkler equipment and fixtures and appurtenances thereto;
and all items of furniture, furnishings, equipment and personal property owned
by Borrower used or useful in the operation of the Premises; and all renewals or
replacements of all of the aforesaid property owned by Borrower or articles in
substitution therefor, whether or not the same are or shall be attached to said
buildings or improvements in any manner (collectively, the "IMPROVEMENTS"); it
being mutually agreed, intended and declared that all the aforesaid property
owned by Borrower and placed by it on the Land or used in connection with the
operation or maintenance of the Premises shall, so far as permitted by law, be
deemed to form a part and parcel of the Land and for the purpose of this Deed of
Trust to be Land and covered by this Deed of Trust, and as to any of the
property aforesaid which does not
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form a part and parcel of the Land or does not constitute a "fixture" (as such
term is defined in the Uniform Commercial Code) this Deed of Trust is hereby
deemed to be, as well, a security agreement under the Uniform Commercial Code
for the purpose of creating hereby a security interest in such property which
Borrower hereby grants to Lender as secured party. Borrower authorizes Lender at
any time until the Indebtedness is paid in full, to prepare and file any and all
Uniform Commercial Code financing statements, amendments, assignments,
terminations and the like, necessary to create and/or maintain a prior security
interest in such property all without Borrower's execution of the same.
H. Together with all right, title and interest of Borrower, now or hereafter
acquired, in and to any and all strips and gores of land adjacent to and used in
connection with the Premises and all right, title and interest of Borrower, now
owned or hereafter acquired, in, to, over and under the ways, streets, sidewalks
and alleys adjoining the Premises.
I. Together with all funds now or hereafter held by Lender under any escrow
security agreement or under any of the terms hereof, including but not limited
to funds held under the provisions of paragraph 5 hereof, insurance proceeds
from all insurance policies required to be maintained by Borrower under the Loan
Documents (subject to the balance of the terms contained in this Deed of Trust)
and all awards, decrees, proceeds, settlements or claims for damage now or
hereafter made to or for the benefit of Borrower by reason of any damage to,
destruction of or taking of the Premises or any part thereof, whether the same
shall be made by reason of the exercise of the right of eminent domain or by
condemnation or otherwise (a "TAKING").
J. TO HAVE AND TO HOLD the same unto Trustee, Trustee's successors and
assigns, upon the trusts, covenants and agreements herein expressed.
K. Borrower represents that it is the absolute owner in fee simple of the
Premises described in Exhibit A, which Premises are free and clear of any liens
or encumbrances except as set out in Exhibit B attached hereto, and except for
taxes which are not yet due or delinquent. Borrower shall forever warrant and
defend the title to the Premises against all claims and demands of all persons
whomsoever and will on demand execute any additional instrument which may be
required to give Trustee a valid first lien on all of the Premises, subject to
the "PERMITTED ENCUMBRANCES" set forth in Exhibit X.
X. Borrower further represents that (i) the Premises is not subject to any
casualty damage; (ii) Borrower has not received any written notice of any
eminent domain or condemnation proceeding affecting the Premises; and (iii) to
the best of Borrower's knowledge following due and diligent inquiry, there are
no actions, suits or proceedings pending, completed or threatened against or
affecting Borrower or any person or entity owning an interest (directly or
indirectly) in Borrower ("INTEREST OWNER(S)") or any property of Borrower or any
Interest Owner in any court or before any arbitrator of any kind or before or by
any governmental authority (whether local, state, federal or foreign) that,
individually or in the aggregate, could reasonably be expected by Lender to be
material to the transaction contemplated hereby.
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M. Borrower further represents and warrants that as of the date hereof and
until the Indebtedness is paid in full: (i) Borrower is not and will not be an
"employee benefit plan" as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), which is subject to Title I
of ERISA; (ii) the assets of Borrower do not and will not constitute "plan
assets" of one or more such plans for purposes of Title I of ERISA; (iii)
Borrower is not and will not be a "governmental plan" within the meaning of
Section 3(32) of ERISA; (iv) transactions by or with Borrower are not and will
not be subject to state statutes applicable to Borrower regulating investments
of and fiduciary obligations with respect to governmental plans; (v) Borrower
has made and will continue to make all required contributions to all employee
benefit plans, if any, established for or on behalf of Borrower or to which
Borrower is required to contribute; (vi) Borrower has and will continue to
administer each such plan, if any, in accordance with its terms and the
applicable provisions of ERISA and any other federal or state law; and (vii)
Borrower has not and will not permit any liability under Sections 4201, 4243,
4062 or 4069 of Title of ERISA or taxes or penalties relating to any employee
benefit plan or multi-employer plan to become delinquent or assessed,
respectively, which would have a material adverse effect upon (i) the business
or the financial position or results of operation of Borrower, (ii) the ability
of Borrower to perform, or of Lender to enforce, any of the Loan Documents or
Environmental Indemnity or (iii) the value of the Premises.
BORROWER COVENANTS AND AGREES AS FOLLOWS:
1. Borrower shall
(a) pay each item of Indebtedness secured by this Deed of Trust
when due according to the terms of the Loan Documents;
(b) pay a Late Charge on any payment of principal, interest, Make
Whole Premium or Indebtedness which is not paid on or before
the due date thereof to cover the expense involved in handling
such late payment;
(c) pay on or before the due date thereof any indebtedness
permitted to be incurred by Borrower pursuant to the Loan
Documents and any other claims which could become a lien on the
Premises (unless otherwise specifically addressed in paragraph
1(e) hereof), and upon request of Lender exhibit satisfactory
evidence of the discharge thereof;
(d) complete within a reasonable time, the construction of any
Improvements now or at any time in process of construction upon
the Land which are required to be performed by Borrower;
(e) manage, operate and maintain the Premises and keep the
Premises, including but not limited to, the Improvements, in
good condition and repair and free from mechanics' liens or
other liens or claims for liens,
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provided however, that Borrower may in good faith, with
reasonable diligence and upon written Notice to Lender within
twenty (20) days after Borrower has knowledge of such lien or
claim, contest the validity or amount of any such lien or claim
and defer payment and discharge thereof during the pendency of
such contest in the manner provided by law, provided that (i)
such contest may be made without the payment thereof; (ii) such
contest shall prevent the sale or forfeiture of the Premises or
any part thereof, or any interest therein, to satisfy such lien
or claim; (iii) Borrower shall have obtained a bond over such
lien or claim from a bonding company acceptable to Lender which
has the effect of removing such lien or collection of the claim
or lien so contested; and (iv) Borrower shall pay all costs and
expenses incidental to such contest; and further provided, that
in the event of a final, non-appealable ruling or adjudication
adverse to Borrower and provided the court of jurisdiction has
not granted a stay of the enforcement of the ruling or
judgment, Borrower shall promptly pay such claim or lien, shall
indemnify and hold Lender and the Premises harmless from any
loss for damage arising from such contest and shall take
whatever action necessary to prevent sale, forfeiture or any
other loss or damage to the Premises or to the Lender;
provided, however, Lender acknowledges and agrees that
performance of the obligations set forth in this Paragraph 1(e)
by a Major Tenant (as defined in Paragraph 4(c) hereof) shall
be deemed compliance with such provisions by Borrower;
(f) comply, and cause each lessee or other user of the Premises to
comply, with all requirements of law and ordinance, and all
rules and regulations, now or hereafter enacted, by authorities
having jurisdiction of the Premises and the use thereof,
including but not limited to all covenants, conditions and
restrictions of record pertaining to the Premises, the
Improvements, and the use thereof (collectively, "LEGAL
REQUIREMENTS");
(g) subject to the provisions of paragraph 6 hereof, promptly
repair, restore or rebuild any Improvements now or hereafter a
part of the Premises which may become damaged or be destroyed
by any cause whatsoever, so that upon completion of the repair,
restoration and rebuilding of such Improvements, there will be
no liens of any nature arising out of the construction and the
Premises will be of substantially the same character and
quality as it was prior to the damage or destruction;
(h) if other than a natural person, 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, if other than its state of formation, the
state where the Premises is located. Borrower shall notify
Lender at least thirty (30) days prior to (i) any relocation of
Borrower's
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principal place of business to a different state or any change
in Borrower's state of formation, and/or (ii) if Borrower is an
individual, any relocation of Borrower's principal residence to
a different state;
(i) do all things necessary to preserve and keep in full force and
effect Lender's title insurance coverage insuring the lien of
this Deed of Trust as a first and prior lien, subject only to
the Permitted Encumbrances stated in Exhibit B and any other
exceptions after the date of this Deed of Trust approved in
writing by Lender, including without limitation, delivering to
Lender not less than 30 days prior to the effective date of any
rate adjustment, modification or extension of the Note or any
other Loan Document, any new policy or endorsement which may be
reasonably required to assure Lender of such continuing
coverage;
(j) execute any and all documents which may be required to perfect
the security interest granted by this Deed of Trust;
(k) remain a Single-Purpose Entity; and
(l) It is understood and agreed that this Deed of Trust secures
future advances and future obligations. The total amount of
obligations and advances secured hereby may decrease or
increase from time to time, but at no time shall the total
principal amount of obligations and advances secured hereby,
not including sums expended or incurred for the reasonable
protection of the security interest created in the Premises or
for other purposes specified in Section 443.055(3) of the
Missouri Revised Statutes, exceed the principal amount of
$62,000,000.00. This Deed of Trust is governed by Section
443.055 of the Missouri Revised Statutes.
As used herein, the term "SINGLE PURPOSE ENTITY" means: a corporation,
limited or general partnership, limited liability company, or business
trust which, at all times until the Indebtedness is paid in full (i)
will be organized solely for the purpose of owning the Premises, (ii)
will not engage in any business unrelated to the ownership of the
Premises, (iii) will not have any assets other than those related to
the Premises, (iv) will not engage in, seek or consent to any
dissolution, winding up, liquidation, consolidation or merger, and,
except as otherwise expressly permitted by the Loan Documents, will
not engage in, seek or consent to any asset sale, transfer of
partnership, membership, shareholder, beneficial interests, or
amendment of its limited partnership agreement, articles of
incorporation, articles of organization, certificate of formation,
operating agreement, trust agreement, or trust certificate (as
applicable), (v) will not fail to correct any known misunderstanding
regarding the separate identity of such entity, (vi) without the
unanimous consent of all of the partners, directors, members,
beneficial owners and trustees, as applicable, will not with respect
to itself or to
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any other entity in which it has a direct or indirect legal or
beneficial ownership interest (a) file a bankruptcy, insolvency or
reorganization petition or otherwise institute insolvency proceedings
or otherwise seek any relief under any laws relating to the relief
from debts or the protection of debtors generally; (b) seek or consent
to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator, custodian or any similar official for such entity or all
or any portion of such entity's properties; (c) make any assignment
for the benefit of such entity's creditors; or (d) take any action
that might cause such entity to become insolvent, (vii) will maintain
its accounts, books and records separate from any other person or
entity, (viii) will maintain its books, records, resolutions and
agreements as official records, (ix) has not commingled and will not
commingle its funds or assets with those of any other person or
entity, (x) has held and will hold its assets in its own name, (xi)
will conduct its business in its name, (xii) will maintain its
financial statements, accounting records and other entity documents
separate from any other person or entity, (xiii) will pay its own
liabilities out of its own funds and assets, (xiv) will observe all
corporate, limited liability company and partnership formalities, as
applicable, including any regarding the maintenance of minimum capital
to the extent required by the laws of the jurisdiction in which the
entity is organized; (xv) has maintained and will maintain an
arms-length relationship with its affiliates, (xvi) if such entity
owns the Premises, will have no indebtedness other than the
Indebtedness and commercially reasonable unsecured trade payables in
the ordinary course of business relating to the ownership and
operation of the Premises which are paid within sixty (60) days of the
date incurred, (xvii) will not assume or guarantee or become obligated
for the debts of any other person or entity or hold out its credit as
being available to satisfy the obligations of any other person or
entity, except for the Indebtedness, (xviii) will not acquire
obligations or securities of its partners, members, trustees,
beneficial owners or shareholders, (xix) will allocate fairly and
reasonably shared expenses, including, without limitation, shared
office space and uses separate stationery, invoices and checks, (xx)
will not pledge its assets for the benefit of any other person or
entity, (xxi) will hold itself out and identify itself as a separate
and distinct entity under its own name and not as a division or part
of any other person or entity, (xxii) will not make loans to any
person or entity, (xxiii) will not identify its partners, members,
shareholders, trustees, beneficiaries or any affiliates of any of them
as a division or part of it, (xxiv) will not enter into or be a party
to, any transaction with its partners, members, shareholders,
beneficiaries, trustees or its affiliates except in the ordinary
course of its business and on terms which are intrinsically fair and
are no less favorable to it than would be obtained in a comparable
arms-length transaction with an unrelated third party, (xxv) will pay
the salaries of its own employees from its own funds, and (xxvi) if
such entity is a limited liability company, limited partnership, or
business trust then such entity shall continue and not dissolve
whether as a consequence of bankruptcy or insolvency of one or more of
the members, general partners, or trustees, as applicable, or
otherwise, for so
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long as a solvent managing member, general partner, or trustee, as
applicable, exists and, subject to applicable law, dissolution of the
entity shall not occur so long as the entity remains owner of the
Premises subject to the Deed of Trust. Such entity's organizational
documents shall contain such provision.
2. Borrower shall not:
(a) except as required by applicable Legal Requirements, construct
any building or structure nor make any alteration or addition
(other than normal repair and maintenance) to (i) the roof or
any structural component of any Improvements on the Premises,
or (ii) the building operating systems, including but not
limited to, the mechanical, electrical, heating, cooling, or
ventilation systems (other than replacement with equal or
better quality and capacity), without the prior written consent
of Lender not to be unreasonably withheld;
(b) remove or demolish any material Improvements, or any portion
thereof, which at any time constitutes a part of the Premises.
Notwithstanding anything hereinabove to the contrary, Borrower
may construct, remove or demolish tenant improvements within
the then existing building(s) or other structures to the extent
such work is required solely under the terms of any Leases
approved by Lender provided (i) no Event of Default exists
under the Loan Documents; (ii) the work is completed on a
timely basis, in a good, workmanlike, lien-free manner and in
accordance with all Legal Requirements, and (iii) such work
does not negatively affect the structural integrity of the
Improvements or the value of the Premises;
(c) cause or permit any change to be made in the general use of the
Premises without Lender's prior written consent;
(d) initiate any or acquiesce to a zoning reclassification or
material change in zoning without Lender's prior written
consent. Borrower shall use all reasonable efforts to contest
any such zoning reclassification or change;
(e) make or permit any use of the Premises that could with the
passage of time result in the creation of any right of use, or
any claim of adverse possession or easement on, to or against
any part of the Premises in favor of any person or entity or
the public;
(f) allow any of the following to occur (unless a Permitted
Transfer):
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(i) a Transfer of all or any portion of the Premises or any
interest in the Premises;
(ii) a Transfer of any ownership interest in Borrower or any
entity which owns, directly or indirectly, an interest in
Borrower at any level of the ownership structure; or
(iii) in addition to (i) and (ii) above, if the Borrower is a
trust, or if a trust owns an interest, directly or
indirectly, in any entity which owns an interest in
Borrower at any level of the ownership structure, the
addition, deletion or substitution of a trustee of such
trust.
If any of such events occur, it shall be null and void and
shall constitute an Event of Default under the Loan Documents.
It is understood and agreed that the Indebtedness evidenced by
the Note is personal to Borrower and in accepting the same
Lender has relied upon what it perceived as the willingness and
ability of Borrower to perform its obligations under the Loan
Documents and the Environmental Indemnity and as lessor under
the Leases of the Premises. Furthermore, Lender may consent to
a Transfer and expressly waive Borrower's covenants contained
in this paragraph 2(f), in writing to Borrower; however any
such consent and waiver shall not constitute any consent or
waiver of such covenants as to any Transfer other than that for
which the consent and waiver was expressly granted.
Furthermore, Lender's willingness to consent to any Transfer
and waive Borrower's covenants contained in this paragraph
2(f), implies no standard of reasonableness in determining
whether or not such consent shall be granted and the same may
be based upon what Lender solely deems to be in its best
interest.
For purposes of the Loan Documents, the following terms shall
have the respective meanings set forth below:
"TRANSFER" or "TRANSFERRED" shall mean with respect to the
Premises, an interest in the Premises, or an ownership interest
or interest therein:
(i) a sale, assignment, transfer, conveyance or other
disposition (whether voluntary, involuntary or by
operation of law);
(ii) the creation, sufferance or granting of any lien,
encumbrance, security interest or collateral assignment
(whether voluntarily, involuntarily or by operation of
law), other than the lien hereof, the leases of the
Premises assigned to Lender, the Permitted Encumbrances,
the granting of a lien on a tenant's interest under
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any Lease in accordance with the terms specifically set
forth therein, and those liens which Borrower is
contesting in accordance with the provisions of paragraph
1(e);
(iii) the issuance or other creation of ownership interests in
an entity;
(iv) the reconstitution or conversion from one entity to
another type of entity;
(v) a merger, consolidation, reorganization or any other
business combination; or
(vi) a conversion to or operation of all or any portion of the
Premises as a cooperative or condominium form of
ownership.
"PERMITTED TRANSFER" shall mean:
(i) a minor (as determined by Lender) conveyance of an
interest in the Premises by Borrower, such as a utility
easement, and for which Lender has given its prior
written consent and imposed such conditions as Lender
deems advisable and appropriate;
(ii) a sale, assignment, transfer or conveyance of all or any
portion of the Premises or an interest in the Premises
for which Borrower has complied with all of the Property
Transfer Requirements; or
(iii) any of the following Transfers for which Borrower has
complied with all of the Ownership Transfer Requirements
as applicable and Lender has given its prior written
consent (and in connection with such consent, Lender may
impose any conditions it wishes in its sole discretion);
(A) a sale, assignment, transfer, or conveyance of an
ownership interest or interest therein;
(B) the issuance or other creation of ownership
interests in an entity;
(C) a reconstitution or conversion from one entity to
another type of entity;
(D) a merger, consolidation, reorganization or any other
business combination;
(iv) with at least thirty (30) days advance written notice,
transfers of ownership interests in Borrower and entities
owning interests in Borrower between Inland Western
Retail Real Estate Trust, Inc., a Maryland corporation
("IWRRET"), and its wholly owned affiliates for which
Borrower has complied with all of the Specific Transfer
Requirements - 1;
(v) with at least thirty (30) days advance written notice,
transfers of ownership interests in Borrower and/or
shares in entities owning interests in Borrower to
Qualified New Members (hereinafter defined), for which
Borrower has complied with all of the Specific
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Transfer Requirements - 2 (for purposes of this Permitted
Transfer, a "Qualified New Member" shall be defined as an
institutional investor or fund managed by an
institutional investor having assets of $100,000,000 or
more;
(vi) with at least thirty (30) days advance written notice,
transfers of direct or indirect ownership interests in
Borrower and entities owning interests in Borrower and
IWRRET, and its wholly owned affiliates to a Qualified
Successor) (hereinafter defined) and/or its wholly owned
affiliates for which Borrower has complied with all of
the Specific Transfer Requirements - 3 (for purposes of
this Permitted Transfer, a "Qualified Successor" shall be
defined as an entity with a tangible net worth of
$200,000,000 or more); a debt to equity ratio of 1.5 or
less; and management personnel experienced in the
ownership and management of retail properties similar to
the Premises; or
(vii) transfers of ownership interests in IWRRET.
"PROPERTY TRANSFER REQUIREMENTS" are all of the following:
1. Prior review and approval of the proposed purchaser or
other transferee and the subject transaction by Lender,
at Lender's sole discretion. Review of the proposed
purchaser or other transferee and the subject transaction
shall encompass various factors, including, but not
limited to, the proposed purchaser's or other
transferee's creditworthiness, financial strength, and
real estate management and leasing expertise as well as
the proposed transaction's effect on the Premises, the
Borrower, and other security for the Loan;
2. Payment to Lender of an assumption fee equal to the
greater of: (a) one half of one percent (0.5%) of the
principal balance of the Note; or (b) $15,000.00;
provided, however, that Lender will require $15,000.00 of
such fee to be paid at the beginning of Lender's review
process, and such sum shall be nonrefundable and earned
upon receipt by Lender whether or not the transaction is
ultimately completed or Lender ultimately approves the
proposed purchaser or other transferee;
3. Receipt, at Borrower's expense, of either (at Lender's
discretion) a new ALTA standard loan policy or an
endorsement updating the Lender's existing loan policy in
the full amount of the Loan, in form and by an issuer
satisfactory to Lender, and which insures this Deed of
Trust to be a first and prior lien subject only to those
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exceptions which were previously approved by Lender and
provides coverage against usury and mechanic's liens;
4. Receipt by Lender of copies of all relevant information
and documentation relating to or required by Lender in
connection with the proposed transfer including but not
limited to (a) the organizational documents of the
proposed transferee and an opinion of counsel
satisfactory to Lender as to its due formation, valid
existence and authority to enter into and carry out the
proposed transaction as well as the proposed transferee's
compliance with its status as a Single Purpose Entity;
(b) the deeds or other instruments of transfer and
documents relating to the assignment and assumption of
Leases; (c) evidence of compliance with the insurance
requirements contained in the Loan Documents; and (d)
compliance with such other closing requirements as are
customarily imposed by Lender in connection with such
transactions;
5. Execution, delivery, acknowledgment and recordation, as
applicable, of new, revised and/or replacement assumption
agreements, loan modification agreements, indemnification
agreements, escrow security or property reserves
agreements, security instruments, financing statements,
UCCs, new or revised letters of credit and/or guarantees
in form and substance satisfactory to Lender;
6. Payment of outside counsel fees and costs, other
applicable professional's fees and costs, taxes,
recording fees and the like, and any other fees and costs
incurred;
7. Receipt by Lender of 60 days advance written notice of
the proposed Transfer in question;
8. Receipt by Lender of a waiver from any tenant having a
right or option to purchase the Premises or any portion
thereof, waiving such right or option in form and
substance acceptable to Lender; and
9. At Lender's option, and if required by the procedures
promulgated by any rating agency(ies) associated with a
securitization transaction with respect to the Loan,
receipt by Lender of written evidence from such
agency(ies) to the effect that the proposed transfer will
not result in a re-qualification, reduction or
12
withdrawal of any rating in effect immediately prior to
such transfer issued in connection with the
securitization transaction.
"OWNERSHIP TRANSFER REQUIREMENTS" are all of the Property
Transfer Requirements which Lender deems appropriate in its
discretion, as well as a reasonable processing fee to be
determined by Lender; provided, however, that (i) with respect
to item 2 of the Property Transfer Requirements, the 0.5%
component of the fee shall be prorated (subject, however, to
the $15,000 minimum) based on Lender's calculation of the
effective percentage interest in Borrower transferred, and (ii)
item 3 of the Property Transfer Requirements shall be required,
at Lender's discretion, only in the event of (A) a merger,
consolidation, reorganization or any other business
combination, or (B) a reconstitution on or conversion from one
entity to another type of entity.
"SPECIFIC TRANSFER REQUIREMENTS -1" are all of the following which
Borrower agrees to provide to Lender prior to each proposed transfer:
(i) a transfer fee of $2,000.00; (ii) all relevant documentation and
information related to the organization, authority, and validity of
the proposed ownership interest purchaser, transferee and the
transaction in general; (iii) all documents and instruments of
conveyance, transfer and assignment; (iv) at Lender's discretion, a
reaffirmation of the obligations of the Guarantor(s) under the
Guaranty; and (v) evidence of payment of all outside counsel fees,
professional fees, title insurance fees, if any, and any and all other
fees, costs and expenses related to the proposed transfer (provided
that no assumption or transfer fee other than the $2,000 fee stated in
(i) above shall be required).
"SPECIFIC TRANSFER REQUIREMENTS - 2" are all of the following which
Borrower agrees to provide to Lender prior to each proposed transfer:
IWRRET or a wholly owned affiliate thereof (i) (a) retains 51% or more
of the ownership interest in the Borrower, or (b) retains ownership of
20% to 50% of the ownership interest in the Borrower subject to
Lender's review and approval in each instance of the proposed
transferee and the subject transaction; Lender's review of the
proposed transferee and the subject transaction shall encompass
various factors, including but not limited to, transferee's
creditworthiness, financial strength, and real estate management
expertise, as well as the proposed transaction's effect on the
Premises, Borrower and the other security for the Loan, and (ii)
otherwise retains operational and management control of Borrower as
determined by Lender, and further provided Borrower provides Lender
each of the following items prior to each proposed transfer: (a) a
transfer fee equal to the greater of $5,000.00 or the product of the
percentage ownership interest in Borrower to be transferred multiplied
by one percent (1%) of the outstanding principal balance of the Loan;
(b) all relevant documentation and information related to the
organization, authority, and validity of the proposed ownership
interest purchaser, transferee
13
and the transaction in general; (c) all documents and instruments of
conveyance, transfer and assignment; (d) a reaffirmation of the
obligations of the Guarantor(s) under the Guaranty; and (e) evidence
of payment of all outside counsel fees, professional fees, title
insurance fees and any and all other fees, costs and expenses related
to the proposed transfer (provided that no assumption or transfer fee
other than the $5,000.00 fee stated in (a) above shall be required).
"SPECIFIC TRANSFER REQUIREMENTS - 3" are all of the following which
Borrower agrees to provide to Lender prior to each proposed transfer:
(i) said transfers are made to accommodate either the merger of IWRRET
with the Qualified Successor or the sale of a majority of IWRRET's
assets to the Qualified Successor; and (ii) the Qualified Successor
retains direct or indirect ownership of 51% or more of the ownership
interests in the Borrower and (iv) the Qualified Successor otherwise
retains operational and management control of Borrower as determined
by Lender, and further provided, Borrower provides Lender with each of
the following items prior to the proposed transfer: (a) a transfer fee
of $10,000.00; (b) all relevant documentation and information related
to the organization, authority, and validity of the proposed ownership
interest purchaser, transferee and the transaction in general; (c) all
documents and instruments of conveyance, transfer and assignment; (d)
a reaffirmation of the obligations of the Guarantor(s) under the
Guaranty or assumption thereof by an individual(s) or entity(ies)
acceptable to Lender in its sole discretion; and (e) evidence of
payment of all outside counsel fees, professional fees, title
insurance fees and any and all other fees, costs and expenses related
to the proposed transfer (provided that no assumption or transfer fee
other than the $10,000.00 fee stated in (a) above shall be required).
3. (a) Borrower shall pay or cause to be paid when due and before any
penalty attaches or interest accrues all general taxes, special
taxes, assessments (including assessments for benefits from
public works or improvements whenever begun or completed),
utility charges, water charges, sewer service charges, common
area maintenance charges, if any, vault or space charges and
all other like charges against or affecting the Premises or
against any property or equipment located on the Premises, or
which might become a lien on the Premises, and shall, within 10
days following Lender's request, furnish to Lender a duplicate
receipt of such payment. If any such tax, assessment or charge
may legally be paid in installments, Borrower may, at its
option, pay such tax, assessment or charge in installments.
Lender acknowledges and agrees that performance of the
obligations set forth in this Paragraph 3(a) by a Major Tenant
under its lease for a portion of the Premises shall be deemed
compliance with such provisions by Borrower with respect to
such portion of the Premises.
14
(b) If Borrower desires to contest any tax, assessment or charge
relating to the Premises, Borrower may do so by paying the same
in full, under protest, in the manner provided by law;
provided, however, that
(i) if contest of any tax, assessment or charge may be made
without the payment thereof, and
(ii) such contest shall have the effect of preventing the
collection of the tax, assessment or charge so contested
and the sale or forfeiture of the Premises or any part
thereof or any interest therein to satisfy the same,
then Borrower may in its discretion and upon the giving of
written notice to Lender of its intended action and upon the
furnishing to Lender of such security or bond as Lender may
require, contest any such tax, assessment or charge in good
faith and in the manner provided by law. All costs and expenses
incidental to such contest shall be paid by Borrower. In the
event of a ruling or adjudication adverse to Borrower, Borrower
shall promptly pay such tax, assessment or charge. Borrower
shall indemnify and save harmless the Lender and the Premises
from any loss or damage arising from any such contest and
shall, if necessary to prevent sale, forfeiture or any other
loss or damage to the Premises or to Lender, pay such tax,
assessment or charge or take whatever action is necessary to
prevent any sale, forfeiture or loss. Lender acknowledges and
agrees that upon compliance with the foregoing requirements, to
the extent permitted under its lease of a portion of the
Premises, a Major Tenant shall have all rights of contest as
set forth in this Paragraph 3(b).
4. (a) Borrower shall at all times keep or cause to be kept in force
(i) property insurance insuring all Improvements which now are
or hereafter become a part of the Premises for perils covered
by a causes of loss-special form insurance policy, including
coverage against terrorism containing both replacement cost and
agreed amount endorsements or equivalent coverage; (ii)
commercial general liability insurance naming Lender as an
additional insured protecting Borrower and Lender against
liability for bodily injury or property damage occurring in, on
or adjacent to the Premises in commercially reasonable amounts;
(iii) boiler and machinery insurance if the property has a
boiler or is an office building; (iv) rental value insurance
for the perils specified herein for one hundred percent (100%)
of the Rents (including operating expenses, real estate taxes,
assessments and insurance costs which are lessee's liability)
for a period of twelve (12) months; (v) builders risk insurance
during all periods of construction; and (vi) insurance against
all other hazards as may be reasonably required by Lender,
including, without limitation, insurance against loss or damage
by
15
flood. Notwithstanding anything herein above to the contrary,
if neither: (i) property insurance without an exclusion for
terrorism, terrorist acts or similar perils ("Terrorism") nor;
(ii) a separate policy insuring specifically against Terrorism
is available at a cost which is in Lender's opinion is
commercially reasonable, taking into consideration, among other
things: (a) how properties similar in type, size, quality and
location are insured with respect to Terrorism; and (b) the
amount of coverage, premium and deductible applicable to such
insurance, then Lender agrees to waive the requirement to
provide insurance covering Terrorism until such coverage again
becomes available at a cost, which in Lender's opinion is
commercially reasonable.
(b) All insurance (including deductibles and exclusions) shall be
in form, content and amounts approved by Lender and written by
an insurance company or companies approved by Lender and rated
A-, class size VIII or better in the most current issue of
Best's Insurance Reports and which is licensed to do business
in the state in which the Premises are located or a
governmental agency or instrumentality approved by Lender. The
policies for such insurance shall have attached thereto
standard mortgagee clauses in favor of and permitting Lender to
collect any and all proceeds payable thereunder and shall
include a 30 day (except for nonpayment of premium, in which
case, a 10 day) notice of cancellation clause in favor of
Lender. All certificates of insurance (or policies if requested
by Lender) shall be delivered to and held by Lender as further
security for the payment of the Note and any other obligations
arising under the Loan Documents, with evidence of renewal
coverage delivered to Lender at least 30 days before the
expiration date of any policy. Borrower shall not carry or
permit to be carried separate insurance, concurrent in kind or
form and contributing in the event of loss, with any insurance
required in the Loan Documents.
(c) Unless Borrower provides evidence of the insurance coverage
required by this Deed of Trust, Lender may purchase insurance
at Borrower's expense to protect Lender's interests in
Borrower's collateral. This insurance may, but need not,
protect Borrower's interests. The coverage that Lender
purchases may not pay any claim that Borrower makes or any
claim that is made against Borrower in connection with the
collateral. Borrower may later cancel any insurance purchased
by Lender, but only after providing evidence that Borrower has
obtained insurance as required by this Deed of Trust. If Lender
purchases insurance for the collateral, Borrower will be
responsible for the costs of that insurance, including the
insurance premium, interest and any other charges Lender may
impose in connection with the placement of the insurance, until
the effective date of the cancellation or expiration of the
insurance. The costs of the insurance may be added to
Borrower's total outstanding balance or obligation. The costs
16
of the insurance may be more than the cost of insurance
Borrower may be able to obtain on its own.
(d) To the contrary notwithstanding, so long as there is no Event
of Default hereunder and so long as (i) the lease between
Borrower and Wal-Mart, Inc., a Delaware corporation
("Wal-Mart") dated June 25, 1993, as amended, (ii) the lease
between Borrower and Home Depot U.S.A., Inc. ("Home Depot")
dated August 17,1993, as amended, (iii) the lease between
Borrower and The Sports Authority, Inc. ("TSA") dated August
23, 1993, as amended, or (iv) the lease between Borrower and
Boston Chicken, Inc. ("Boston Chicken") dated January 20, 1995,
as amended, or any lease to any replacement tenant under any of
such leases approved by Lender, remains in full force and
effect and there are no material breaches thereof beyond the
expiration of any applicable notice and cure periods, Lender
will allow Wal-Mart, Home Depot, TSA and Boston Chicken (each a
"Major Tenant") or any said replacement tenant approved by
Lender (a "Replacement Tenant") to keep in force the insurance
required herein with respect to their respective leased
premises, except with respect to coverage for rental insurance,
and such performance by such Major Tenant shall be deemed
performance by Borrower with respect to such required insurance
hereunder. All insurance coverages and requirements that are
not maintained by a Major Tenant or a Replacement Tenant in
accordance with the Lender's insurance requirements herein
shall at all times during the Loan be maintained by Borrower.
(e) To the contrary notwithstanding, so long as there is no Event
of Default hereunder and so long as (i) the lease between
Borrower and a Major Tenant remains in full force and effect
and there are no material breaches thereof beyond the
expiration of any applicable notice and cure periods, Lender
agrees to accept self-insurance by a Major Tenant for its
respective leased premises. Lender will only accept
self-insurance by a Major Tenant under the terms of its lease
if such Major Tenant maintains a minimum tangible net worth of
$100,000,000.00. All insurance coverages and requirements that
are not self insured by a Major Tenant in accordance with the
Lender's insurance requirements herein shall at all times
during the Loan be maintained by such Major Tenant or Borrower
(with the exception of coverage for rental insurance, which
shall be provided by Borrower).
5. (a) Upon the occurrence of an Event of Default and upon request
of Lender, Borrower shall deposit with, and pay to Lender, on
each payment date specified in the Note, sums calculated by
Lender for payment of the following as they become due and
payable: (i) the estimated taxes and assessments assessed or
levied against the Premises, and (ii) the estimated
17
premiums for insurance required by the Loan Documents,
excluding commercial general liability insurance. Lender shall
use such deposits to pay the taxes, assessments and premiums
when the same become due. Borrower shall procure and deliver to
Lender, in advance, statements for such charges. If the total
payments made by Borrower under this paragraph exceed the
amount of payments actually made by Lender for taxes,
assessments and insurance premiums, such excess shall be
credited by Lender on subsequent deposits to be made by
Borrower. If, however, the deposits are insufficient to pay the
taxes, assessments and insurance premiums when the same shall
be due and payable, Borrower will pay to Lender any amount
necessary to make up the deficiency, five (5) business days
before the date when payment of such taxes, assessments and
insurance premiums shall be due. If at any time Borrower shall
tender to Lender, in accordance with the provisions of the Note
secured by this Deed of Trust, full payment of the entire
Indebtedness represented thereby, Lender shall, in computing
the amount of such Indebtedness, credit to the account of
Borrower any balance remaining in the funds accumulated and
held by Lender under the provisions of this paragraph. If there
is an Event of Default resulting in a public sale of the
Premises, or if Lender otherwise acquires the Premises after an
Event of Default, Lender shall apply, at the time of
commencement of such proceedings, or at the time the Premises
is otherwise acquired, the balance then remaining in the funds
accumulated under this paragraph as a credit toward any
delinquent or accrued taxes and then in such priority as Lender
elects to the other Indebtedness.
(b) Any funds held under this paragraph shall not constitute any
deposit or account of the Borrower or moneys to which the
Borrower is entitled upon demand, or upon the mere passage of
time, or sums to which Borrower is entitled to any interest or
crediting of interest by virtue of Lender's mere possession of
such deposits. Lender shall not be required to segregate such
deposits and may hold such deposits in its general account or
any other account and may commingle such deposits with any
other moneys of Lender or moneys which Lender is holding on
behalf of any other person or entity.
6. In the event of any damage to or destruction of the Premises, or any
part thereof:
(a) Borrower will immediately notify Lender thereof in the manner
provided in this Deed of Trust for the giving of notices.
Lender shall have the right (which may be waived by Lender in
writing) to settle and adjust any claim under such insurance
policies required to be maintained by Borrower. In all
circumstances, the proceeds thereof shall be paid to Lender and
Lender is authorized to collect and to give receipts therefor.
Borrower agrees and acknowledges that such proceeds shall be
held by Lender without any
18
allowance of interest and that in any bankruptcy proceeding of
Borrower, all such proceeds shall be deemed to be "Cash
Collateral" as that term is defined in Section 363 of the
Bankruptcy Code. Provided that no Event of Default exists,
Borrower shall have the right to participate in any settlement
or adjustment; provided, however, that any settlement or
adjustment shall be subject to the written approval of Lender,
not to be unreasonably withheld.
(b) Such proceeds, after deducting therefrom any reasonable
expenses incurred by Lender in the collection thereof
(including but not limited to reasonable attorneys' fees and
costs), shall be applied by Lender to pay the Indebtedness
secured hereby including, but not limited to the Make Whole
Premium, whether or not then due and payable, provided,
however, that if no Event of Default exists at the time of such
application, no Make Whole Premium shall be due.
Notwithstanding anything hereinabove to the contrary,
(i) in the event the casualty occurs more than six (6) months
prior to the Maturity Date and no Event of Default
exists, Lender shall apply such proceeds as outlined
below; provided, further, that Lender's rights in this
subparagraph are subject to Borrower's rights to use such
proceeds for rebuilding and restoring the buildings and
improvements as may be required or permitted by law in
effect at the time of the loss.
(A) If the aggregate amount of such proceeds is less
than $250,000, Lender shall pay such proceeds
directly to Borrower, to be held in trust for Lender
and applied to the cost of rebuilding and restoring
the Premises.
(B) If the aggregate amount of such proceeds equals or
exceeds $250,000 Lender shall disburse such amounts
of the proceeds as Lender reasonably deems necessary
for the repair or replacement of the Premises,
subject to the conditions set forth in paragraph
6(c) below.
(ii) in the event (x) an Event of Default exists, or (y) the
casualty occurs during the last six (6) months prior to
the Maturity Date and Lender determines that the repair
and restoration of such casualty cannot be completed
prior to the Maturity Date, or (z) the conditions set
forth in paragraph 6(c) are not met, then Lender, in its
sole and absolute discretion may either:
19
(A) declare the entire Indebtedness to be immediately
due and payable, provided, however, that if no Event
of Default exists, no Make Whole Premium shall be
due. All proceeds shall be applied toward payment of
the Indebtedness in such priority as Lender elects;
or
(B) disburse such proceeds as Lender reasonably deems
necessary for the repair or replacement of the
Premises subject to those conditions set forth in
paragraph 6(c) which Lender in its sole and absolute
discretion may require.
(c) (i) In the event that Borrower is to be reimbursed out of the
insurance proceeds or out of any award or payment
received with respect to a Taking, Lender shall from time
to time make available such proceeds, subject to the
following conditions: (a) there continues to exist no
Event of Default; (b) the delivery to Lender of
satisfactory evidence of the estimated cost of completion
of such repair and restoration work and any architect's
certificates, waivers of lien, contractor's sworn
statements, and other evidence of cost and of payment and
of the continued priority of the lien hereof over any
potential liens of mechanics and materialmen (including,
without limitation, title policy endorsements) as Lender
may reasonably require and approve; (c) the time required
to complete the repair and restoration work and for the
income from the Premises to return to the level it was
prior to the loss will not exceed the coverage period of
the rental value insurance required hereunder; (d) the
annual net cash flow (annual net operating income after
deduction for tenant improvements, leasing commissions,
annual replacement reserves, and a management fee) shall
equal or exceed 1.5 times the annual debt service on the
Note. Only net operating income from approved executed
Leases in effect on the Premises, having at least three
(3) years remaining prior to the expiration of their
term, with no uncured defaults, shall be used in Lender's
determination of the annual net cash flow; (e) Lender
approves the plans and specifications of such work before
such work is commenced if the estimated cost of
rebuilding and restoration exceeds 25% of the
Indebtedness or involves any structural changes or
modifications. If said plans and specifications
substantially comply with those previously approved by
Lender, Lender's approval shall not be unreasonably
withheld; (f) if the amount of any insurance proceeds,
award or other payment is insufficient to cover the cost
of restoring and rebuilding the Premises, Borrower shall
pay such cost in excess of such proceeds, award or other
payment before being entitled to reimbursement out
20
of such funds; (g) Borrower pays to Lender a
non-refundable processing fee equal to the greater of
$5,000.00 or .25% of the amount of such proceeds within
sixty (60) days of the occurrence of any such damage or
destruction and before Lender disburses any proceeds; and
(h) such other conditions to such disbursements, in
Lender's reasonable discretion, as would be customarily
required by a construction lender doing business in the
area where the Premises is located or which are otherwise
required by any rating agency rating a securitization
transaction with respect to the Loan.
(ii) No payment made by Lender prior to the final completion
of the repair or restoration work shall, together with
all payments theretofore made, exceed 90% of the cost of
such work performed to the time of payment, and at all
times the undisbursed balance of said proceeds shall be
at least sufficient to pay for the cost of completion of
such work free and clear of all liens. Any proceeds
remaining after payment of the cost of rebuilding and
restoration shall, at the option of Lender, either be (a)
applied in reduction of the Indebtedness secured hereby,
provided, however, that if no Event of Default exists at
the time of such application, no Make Whole Premium shall
be due, or (b) paid to Borrower.
(iii) Repair and restoration of the Premises shall be commenced
promptly after the occurrence of the loss and shall be
prosecuted to completion diligently, and the Premises
shall be so restored and rebuilt to substantially the
same character and quality as prior to such damage and
destruction and shall comply with all Legal Requirements.
(d) Should such damage or destruction occur after foreclosure or
sale proceedings have been instituted, the proceeds of any such
insurance policy or policies, if not applied in rebuilding or
restoration of the Improvements, shall be used to pay (i) the
Indebtedness then due and owing in the event of a non-judicial
sale in such priority as Lender elects, or (ii) the amount due
in accordance with any decree of foreclosure or deficiency
judgment that may be entered in connection with such
proceedings, and the balance, if any, shall be paid to the
owner of the equity of redemption if it shall then be entitled
to the same, or otherwise as any court having jurisdiction may
direct.
(e) To the contrary notwithstanding, so long as there is no Event
of Default hereunder and so long as the lease with a Major
Tenant remains in full force and effect, Lender agrees that the
provisions of the lease with such Major Tenant governing the
application of insurance proceeds and
21
restoration shall apply with respect to that portion of the
Premises subject to such lease.
7. In the event of the commencement of a Taking affecting the Premises:
(a) Borrower shall notify Lender thereof in the manner provided in
this Deed of Trust for the giving of notices. Lender may
participate in such proceeding, and Borrower shall deliver to
Lender all documents requested by it to permit such
participation.
(b) Borrower shall cause the proceeds of any award or other payment
made relating to a Taking, to be paid directly to Lender.
Lender, in its sole and absolute discretion: (i) may apply all
such proceeds to pay the Indebtedness in such priority as
Lender elects, provided however, that if no Event of Default
exists at the time of such application no Make Whole Premium
shall be due; or (ii) subject to and in accordance with the
provisions set forth in paragraph 6(c) above, may disburse such
amounts of the proceeds as Lender reasonably deems necessary
for the repair or replacement of the Premises.
(c) Notwithstanding anything herein above to the contrary, provided
no Event of Default exists, Lender agrees to disburse the
proceeds received from any Inconsequential Taking, as
hereinafter defined, to Borrower for the repair and/or
replacement of the Premises. An Inconsequential Taking shall be
a Taking which (i) results in less than $250,000 in proceeds;
(ii) does not, in Lender's determination, materially or
adversely affect the Improvements, parking, access, ingress,
egress or use of the Premises; and (iii) does not trigger any
rights or options of tenants under the Leases.
(d) To the contrary notwithstanding, so long as there is no Event
of Default hereunder and so long as the lease with a Major
Tenant remains in full force and effect, Lender agrees that the
provisions of the lease with such Major Tenant governing the
application of the proceeds of a Taking shall apply with
respect to that portion of the Premises subject to such lease.
8. If by the laws of the United States of America or of any state or
governmental subdivision having jurisdiction over Borrower or of the
Premises or of the Loan evidenced by the Loan Documents or any
amendments or modifications thereof, any tax or fee is due or becomes
due or is imposed upon Lender in respect of the issuance of the Note
hereby secured or the making, recording and registration of this Deed
of Trust or otherwise in connection with the Loan Documents, the
Environmental Indemnity or the Loan, except for Lender's income or
franchise tax, Borrower covenants and agrees to pay such tax or fee in
the manner required by such law and to hold harmless and indemnify
Trustee and Lender, their
22
successors and assigns, against any liability incurred by reason of
the imposition of any such tax or fee.
9. (a) Upon the occurrence of any Event of Default, Lender may, but
need not, make any payment or perform any act herein required
of Borrower, in any form and manner deemed expedient and may,
but need not, make full or partial payments of principal or
interest on prior encumbrances, if any, and purchase,
discharge, compromise or settle any tax lien or other prior
lien or title or claim thereof, or redeem from any tax sale or
forfeiture affecting said Premises, or contest any tax or
assessment. All moneys paid for any of the purposes herein
authorized and all reasonable expenses paid or incurred in
connection therewith, including but not limited to, reasonable
attorneys' fees and costs and reasonable attorneys' fees and
costs on appeal, and any other money advanced by Lender to
protect the Premises and the lien hereof, shall be so much
additional Indebtedness secured hereby and shall become
immediately due and payable without notice and with interest
thereon at the Default Rate from the date of expenditure or
advance until paid.
(b) In making any payment hereby authorized relating to taxes or
assessments or for the purchase, discharge, compromise or
settlement of any prior lien, Lender may make such payment
according to any xxxx, statement or estimate secured from the
appropriate public office without inquiry into the accuracy
thereof or into the validity of any tax, assessment, sale,
forfeiture, tax lien or title or claim thereof or without
inquiry as to the validity or amount of any claim for lien
which may be asserted.
10. If one or more of the following events (herein called an "EVENT OF
DEFAULT" or "EVENTS OF DEFAULT" as the context so requires) shall have
occurred:
(a) failure to pay when due any principal, interest, Make Whole
Premium or other Indebtedness, utilities, taxes or assessments
or insurance premiums required pursuant to the Loan Documents
or the Environmental Indemnity, and such failure shall have
continued for 5 days as to payment of any principal, interest
or taxes or assessments, or insurance premiums or for 5 days
after written notice specifying such default is given by Lender
to Borrower as to payment of any Make Whole Premium; or
(b) Borrower, Interest Owner or any guarantor voluntarily brings or
acquiesces to any of the following: (A) any action for
dissolution, act of dissolution or dissolution or the like of
Borrower, Interest Owner or any guarantor under the Federal
Bankruptcy Code as now or hereafter constituted; (B) the filing
of a petition or answer proposing the adjudication of Borrower,
Interest Owner or any guarantor as a bankrupt or its
reorganization or
23
arrangement, or any composition, readjustment, liquidation,
dissolution or similar relief with respect to it pursuant to
any present or future federal or state bankruptcy or similar
law; or (C) the appointment by order of a court of competent
jurisdiction of a receiver, trustee or liquidator of the
Premises or any part thereof or of Borrower, Interest Owner or
any guarantor or of substantially all of the assets of
Borrower, Interest Owner or any guarantor; or
(c) one or more of the items set forth in paragraph 10(b) above
occur which were either not (i) voluntarily brought by
Borrower, Interest Owner or any guarantor or (ii) acquiesced in
by Borrower, Interest Owner or any guarantor, and which are not
discharged or dismissed within 90 days after the action, filing
or appointment, as the case may be; or
With respect to the matters in (b) and (c) above for an
Interest Owner only, no Event of Default shall occur until an
interested party or Interest Owner asserts a claim or right
against Borrower or the Premises which delays or otherwise
affects Lender's rights, remedies, or interests granted under
the Loan Documents (whether or not such assertion is
successful).
(d) with respect to the matters not described in the other
subparagraphs of this paragraph 10, failure to duly observe or
perform any covenant, condition or agreement of the Borrower or
any guarantor contained in this Deed of Trust, the Guaranty,
the Note or the Assignment of Leases from Borrower to Lender or
in any other instrument or agreement which evidences or secures
the Loan (the "LOAN DOCUMENTS"), or in the Environmental
Indemnity and such failure shall have continued for 30 days
after Notice specifying such failure is given by Lender to
Borrower; or
If any failure to observe or perform under (d) above shall be
of such nature that it cannot be cured or remedied within 30
days, Borrower shall be entitled to a reasonable period of time
to cure or remedy such failure (not to exceed 90 days following
the giving of Notice), provided Borrower commences the cure or
remedy thereof within the 30 day period following the giving of
Notice and thereafter proceeds with diligence, as determined by
Lender, to complete such cure or remedy.
(e) the failure of Borrower to duly observe or perform any of the
covenants, conditions and agreements of the Borrower contained
in paragraph 2(f) of this Deed of Trust; or
(f) any representation when made by or on behalf of Borrower,
Interest Owner or any guarantor regarding the Premises, the
making or delivery of any of the Loan Documents or the
Environmental Indemnity or in any material
24
written information provided by or on behalf of Borrower,
Interest Owner or any guarantor in connection with the Loan
shall prove to be untrue or inaccurate in any material respect;
or
(g) the failure of Borrower to give Notice to Lender within 90 days
after the death of any individual who is personally liable for
any obligation under the Loan Documents or the Environmental
Indemnity, as Borrower, indemnitor or guarantor, whether or not
such individual had executed the Note or this Deed of Trust; or
(h) subject to the provisions of paragraph 2(f), the failure of
Borrower to provide Lender with an assumption agreement in form
and substance and executed by a person(s) or entity(ies)
acceptable to Lender in its sole discretion to assume the
obligations of any deceased individual who is personally liable
for any obligation under the Loan Documents or the
Environmental Indemnity, as Borrower, indemnitor or guarantor,
whether or not such individual had executed the Note or this
Deed of Trust, and such failure shall have continued for 90
days after the death of such individual; or
(i) the failure of Borrower to remain a Single-Purpose Entity; or
(j) notification of Lender by Borrower of Borrower's election
pursuant to Mo. Rev. Stat. Section 443.055 to terminate the
operation of this Deed of Trust as security for future advances
or future obligations;
then, in each and every such case, the whole of said principal sum
hereby secured shall, at the option of the Lender and without further
notice to Borrower, become immediately due and payable together with
accrued interest thereon, a Make Whole Premium calculated in
accordance with the provisions of the Loan Documents and all other
Indebtedness, and whether or not Lender has exercised said option,
interest shall accrue on the entire principal balance and any interest
or Make Whole Premium or other Indebtedness then due, at the Default
Rate until fully paid or if Lender has not exercised said option, for
the duration of any Event of Default.
11. Borrower agrees that if Lender accelerates the whole or any part of
the principal sum hereby secured after the occurrence of an Event of
Default, or applies any proceeds pursuant to the provisions hereof,
Borrower waives any right to prepay the principal sum hereby secured
in whole or in part without premium and agrees to pay, as yield
maintenance protection and not as a penalty, a "MAKE WHOLE PREMIUM".
However, in the event any proceeds from a casualty or Taking of the
Premises are applied to reduce the principal balance under the Note,
no Make Whole Premium shall be due so long as no Event of Default
exists at the time of
25
such application. The Make Whole Premium shall be the greater of one
percent (1%) of the principal amount to be prepaid or a premium
calculated as follows:
(a) Determine the "REINVESTMENT YIELD." The Reinvestment Yield will
be equal to the yield on the U.S. Treasury Issue ("PRIMARY
ISSUE")* published one week prior to the date of prepayment and
converted to an equivalent monthly compounded nominal yield.
*At this time there is not a U.S. Treasury Issue for this prepayment
period. At the time of prepayment, Lender shall select in its sole and
absolute discretion a U.S. Treasury Issue with similar remaining time
to the Maturity Date.
(b) Calculate the "PRESENT VALUE OF THE LOAN." The Present Value of
the Loan is the present value of the payments to be made in
accordance with the Note (all installment payments and any
remaining payment due on the Maturity Date) discounted at the
Reinvestment Yield for the number of months remaining from the
date of prepayment to the Maturity Date. In the event of a
partial prepayment as a result of the aforementioned
application of proceeds, the Present Value of the Loan shall be
calculated in accordance with the preceding sentence multiplied
by the fraction which results from dividing the amount of the
prepaid proceeds by the principal balance immediately prior to
prepayment.
(c) Subtract the amount of the prepaid proceeds from the Present
Value of the Loan as of the date of prepayment. Any resulting
positive differential shall be the premium.
Notwithstanding anything herein to the contrary, during the last 90
days prior to the Maturity Date, the Make Whole Premium shall not be
subject to the one percent (1%) minimum and shall be calculated only
as provided in (a) through (c) above.
12. Upon the occurrence of any Event of Default, in addition to any other
rights or remedies granted or available to Lender hereunder or under
the other Loan Documents, at law, in equity or otherwise, Lender may
declare all sums secured hereby immediately due and payable by
delivery to Trustee of written declaration of default and demand for
sale and this Deed of Trust shall remain in force; and said Trustee or
its successor or successors as hereinafter provided for, at the
request of the legal holder of the aforesaid Note, may proceed to sell
the Premises hereinbefore conveyed, or any part thereof, at public
vendue or outcry at the place then customarily employed for that
purpose in the county where the Premises are located (or, if located
in the City of St. Louis, then the said City) to the highest bidder
for cash, first giving the public notice as required by law of the
time, terms and place of sale and description of the property to be
sold, by advertisement
26
published as is provided by the laws of the State of Missouri then in
effect, and on such sale Trustee shall receive the proceeds thereof
and shall execute a deed or deeds, in fee simple to the property sold,
to the purchaser or purchasers thereof, and any deed made by Trustee
in pursuance of the power herein granted and all recitals therein
contained shall be conclusive proof of the facts therein set forth. At
such sale, Lender shall be entitled to bid for or purchase the
mortgaged Premises, the same as any third person might do. Trustee
shall pay out the proceeds of such sale, first, the cost and expense
of executing this trust, including attorneys fees of the Trustee and
lawful compensation to the Trustee for its services as provided by
statute, next, it shall repay any money advanced for taxes, insurance
or other advances or charges with interest thereon, as above provided,
next, the amount unpaid on said Note together with the interest
accrued thereon and all overdue payments and charges provided for
herein and all other sums or amounts due under the terms of any of the
Loan Documents, and, the remainder, if any, shall be paid to such
parties as may legally be entitled thereto.
13. Notwithstanding anything to the contrary in paragraph 12 or any other
provision hereof, all rights of the Lender or any other legal holder
of the Note, including without limitation, to commence a lawsuit for
payment of the Note, to foreclose this Deed of Trust by judicial
action or to take any other legal action to enforce this Deed of Trust
by judicial action or to take any other legal action to enforce
payment of said Indebtedness, by court proceedings for legal or
equitable relief, or otherwise, shall remain intact and may be pursued
by Lender or such other legal holder at its option and in its sole
discretion.
14. (a) In the event of such a sale of the Premises or any part thereof
and the execution of a deed or deeds therefor under these
trusts, any recital therein of the occurrence of an Event of
Default or of the giving or recording of any notice or demand
by Trustee or Lender regarding such sale shall be conclusive
proof thereof, and the receipt of the purchase money recited
therein shall fully discharge the purchaser from any obligation
for the proper application of the proceeds of sale in
accordance with these trusts.
(b) No Trustee shall be disqualified from acting as Trustee
hereunder, or from performing any of the duties as Trustee or
from exercising the rights, powers, and remedies herein granted
by reason of the fact such Trustee is an officer, employer or
stockholder of the Lender, or is interested, directly or
indirectly, as the holder of the Note hereby secured, Borrower
hereby expressly consenting to Trustee acting as such Trustee
irrespective of the fact that Trustee might otherwise be
disqualified for any of the foregoing reasons, and that any
interest which such Trustee or any successor shall have or may
acquire in the debt hereby secured, or the Premises hereby
conveyed, shall neither interfere with nor prevent their acting
as Trustee or from purchasing the Premises at the sale, and all
parties waive any
27
objection to Trustee or from purchasing the Premises at the
sale, and all parties waive any objection to Trustee having
acquiring any such interest in the debt or property aforesaid
and continuing to act as such Trustee.
15. Following the occurrence of an Event of Default, unless the same has
been specifically waived in writing, Borrower shall forthwith upon
demand of Trustee or Lender surrender to Lender possession of the
Premises, and Lender shall be entitled to take actual possession of
the Premises or any part thereof personally or by its agents or
attorneys, and Lender in its discretion may, with or without force and
with or without process of law, enter upon and take and maintain
possession of all or any part of the Premises together with all
documents, books, records, papers and accounts of the Borrower or the
then owner of the Premises relating thereto, and may exclude Borrower,
its agents or assigns wholly therefrom, and may as attorney-in-fact or
agent of the Borrower, or in its own name as Lender and under the
powers herein granted:
(a) hold, operate, maintain, repair, rebuild, replace, alter,
improve, manage or control the Premises as it deems judicious,
insure and reinsure the same and any risks related to Lender's
possession, operation and management thereof and receive all
Rents, either personally or by its agents, and with full power
to use such measures, legal or equitable, as in its discretion
it deems proper or necessary to enforce the payment or security
of the Rents, including actions for the recovery of Rent,
actions in forcible detainer and actions in distress for Rents,
hereby granting full power and authority to exercise each and
every of the rights, privileges and powers herein granted at
any and all times hereafter, without notice to Borrower; and
(b) conduct leasing activity pursuant to the provisions of the
Assignment of Leases.
Neither Trustee nor Lender shall be obligated to perform or discharge,
nor does either hereby undertake to perform or discharge, any
obligation, duty or liability under any Lease. Except to the extent
that the same is caused solely by Lender's gross negligence or willful
misconduct, should Trustee or Lender incur any liability, loss or
damage under any Leases, or under or by reason of the Assignment of
Leases, or in the defense of any claims or demands whatsoever which
may be asserted against Lender or Trustee by reason of any alleged
obligations or undertakings on its part to perform or discharge any of
the terms, covenants or agreements in any Lease, the amount thereof,
including costs, expenses and reasonable attorneys' fees and costs,
including reasonable attorneys' fees and costs on appeal, shall be
added to the Indebtedness and secured hereby.
16. Upon the occurrence of an Event of Default, Trustee and Lender in the
exercise of the rights and powers conferred upon them shall have the
full power to use and
28
apply the Rents, less costs and expenses of collection to the payment
of or on account of the items listed in (a) - (c) below, at the
election of Lender and in such order as Lender may determine as
follows:
(a) to the payment of (i) the expenses of operating and maintaining
the Premises, including, but not limited to the cost of
management, leasing (which shall include reasonable
compensation to Trustee, Lender and their respective agent or
agents if management and/or leasing is delegated to an agent or
agents), repairing, rebuilding, replacing, altering and
improving the Premises, (ii) premiums on insurance as
hereinabove authorized, (iii) taxes and special assessments now
due or which may hereafter become due on the Premises, and (iv)
expenses of placing the Premises in such condition as will, in
the sole judgment of Lender, make it readily rentable;
(b) to the payment of any principal, interest or any other
Indebtedness secured hereby or any deficiency which may result
from any foreclosure sale;
(c) to the payment of established claims for damages, if any,
reasonable attorneys' fees and costs and reasonable attorneys'
fees and costs on appeal.
The manner of the application of Rents, the reasonableness of the
costs and charges to which such Rents are applied and the item or
items which shall be credited thereby shall be within the sole and
unlimited discretion of Lender. To the extent that the costs and
expenses in (a) and (c) above exceed the amounts collected, the excess
shall be added to the Indebtedness and secured hereby.
17. Upon the occurrence of any Event of Default, unless the same has been
as specifically waived in writing, Lender may apply to any court
having jurisdiction for the appointment of a receiver of the Premises.
Such appointment may be made either before or after sale, without
notice, without regard to the solvency or insolvency of Borrower at
the time of application for such receiver and without regard to the
then value of the Premises or the adequacy of Lender's security.
Lender may be appointed as such receiver. The receiver shall have
power to collect the Rents during the pendency of any foreclosure
proceedings and, in case of a sale, during the full statutory period
of redemption, if any, as well as during any further times when
Borrower, except for the intervention of such receiver, would be
entitled to collect such Rents. In addition, the receiver shall have
all other powers which shall be necessary or are usual in such cases
for the protection, possession, control, management and operation of
the Premises during the whole of said period. The court from time to
time may authorize the receiver to apply the net income in its
possession at Lender's election and in such order Lender may determine
in payment in full or in part of those items listed in paragraph 16.
29
18. (a) Borrower agrees that all reasonable costs, charges and
expenses, including but not limited to, reasonable attorneys'
fees and costs, incurred or expended by Trustee or Lender
arising out of or in connection with any action, proceeding or
hearing, legal, equitable or quasi-legal, including the
preparation therefor and any appeal therefrom, in any way
affecting or pertaining to the Loan Documents, the
Environmental Indemnity, or the Premises, shall be promptly
paid by Borrower. All such sums not promptly paid by Borrower
shall be added to the Indebtedness secured hereby and shall
bear interest at the Default Rate from the date of such advance
and shall be due and payable on demand.
(b) Borrower hereby agrees that upon the occurrence of an Event of
Default and the acceleration of the principal sum secured
hereby pursuant to this Deed of Trust, to the full extent that
such rights can be lawfully waived, Borrower hereby waives and
agrees not to insist upon, plead, or in any manner take
advantage of, any notice of acceleration, any stay, extension,
exemption, homestead, marshaling or moratorium law or any law
providing for the valuation or appraisement of all or any part
of the Premises prior to any sale or sales thereof under any
provision of this Deed of Trust or before or after any decree,
judgment or order of any court or confirmation thereof, or
claim or exercise any right to redeem all or any part of the
Premises so sold and hereby expressly waives to the full extent
permitted by applicable law on behalf of itself and each and
every person or entity acquiring any right, title or interest
in or to all or any part of the Premises, all benefit and
advantage of any such laws which would otherwise be available
to Borrower or any such person or entity, and agrees that
neither Borrower nor any such person or entity will invoke or
utilize any such law to otherwise hinder, delay or impede the
exercise of any remedy granted or delegated to Lender herein
but will permit the exercise of such remedy as though any such
laws had not been enacted. Borrower hereby further expressly
waives to the full extent permitted by applicable law on behalf
of itself and each and every person or entity acquiring any
right, title or interest in or to all or any part of the
Premises any and all rights of redemption from any sale or any
order or decree of foreclosure obtained pursuant to provisions
of this Deed of Trust.
19. In accordance with and subject to the terms and conditions of the
Assignment of Leases, Borrower hereby assigns to Lender directly and
absolutely, and not merely collaterally, the interest of Borrower as
lessor under the Leases of the Premises and the Rents payable under
any Lease and/or with respect to the use of the Premises, or portion
thereof, including any oil, gas or mineral lease, or any installments
of money payable pursuant to any agreement or any sale of the Premises
or any part thereof, subject only to a license, if any, granted by
Lender to
30
Borrower with respect thereto prior to the occurrence of an Event of
Default. Borrower has executed and delivered the Assignment of Leases
which grants to Lender specific rights and remedies in respect of said
Leases and governs the collection of Rents thereunder and from the use
of the Premises, and such rights and remedies so granted shall be
cumulative of those granted herein.
The collection of such Rents and the application thereof as aforesaid
shall not cure or waive any Event of Default or notice of default
hereunder or invalidate any act done pursuant to such notice, except
to the extent any such Event of Default is fully cured. Failure or
discontinuance of Lender at any time, or from time to time, to collect
any such moneys shall not impair in any manner the subsequent
enforcement by Lender of the right, power and authority herein
conferred on Lender. Nothing contained herein, including the exercise
of any right, power or authority herein granted to Lender, shall be,
or be construed to be, an affirmation by Lender of any tenancy, Lease
or option, or an assumption of liability under, or the subordination
of the lien or charge of this Deed of Trust to any such tenancy, Lease
or option. Borrower hereby agrees that, in the event Lender exercises
its rights as provided for in this paragraph or in the Assignment of
Leases, Borrower waives any right to compensation for the use of
Borrower's furniture, furnishings or equipment in the Premises for the
period such assignment of rents or receivership is in effect, it being
understood that the Rents derived from the use of any such items shall
be applied to Borrower's obligations hereunder as above provided.
20. All rights and remedies granted to Trustee or Lender in the Loan
Documents shall be in addition to and not in limitation of any rights
and remedies to which it is entitled in equity, at law or by statute,
and the invalidity of any right or remedy herein provided by reason of
its conflict with applicable law or statute shall not affect any other
valid right or remedy afforded to Trustee or Lender. No waiver of any
default or Event of Default under any of the Loan Documents shall at
any time thereafter be held to be a waiver of any rights of the
Trustee or Lender hereunder, nor shall any waiver of a prior Event of
Default or default operate to waive any subsequent Event of Default or
default. All remedies provided for in the Loan Documents are
cumulative and may, at the election of Lender, be exercised
alternatively, successively or concurrently. No act of Trustee or
Lender shall be construed as an election to proceed under any one
provision herein to the exclusion of any other provision or to proceed
against one portion of the Premises to the exclusion of any other
portion. Time is of the essence under this Deed of Trust and the Loan
Documents.
21. By accepting payment of any sum secured hereby after its due date,
Lender does not waive its right either to require prompt payment when
due of all other sums or installments so secured or to declare a
default for failure to pay such other sums or installments.
31
22. The usury provisions of paragraph 6 of the Note and the limitation of
recourse liability provisions of paragraph 9 of the Note are fully
incorporated herein by reference as if the same were specifically
stated here.
23. In the event one or more provisions of the Loan Documents shall be
held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provision hereof, and the Loan Documents shall be construed as if any
such provision had never been contained herein.
24. If the payment of the Indebtedness secured hereby or of any part
thereof shall be extended or varied, or if any part of the security be
released, all persons now or at any time hereafter liable therefor, or
interested in said Premises, shall be held to assent to such
extension, variation or release, and their liability and the lien and
all provisions hereof shall continue in full force, the right of
recourse against all such persons being expressly reserved by Lender
notwithstanding such variation or release.
25. Upon payment in full of the principal sum, interest and other
Indebtedness secured by the Loan Documents, these presents shall be
null and void, and Trustee shall release this Deed of Trust and the
lien hereof by proper instrument executed in recordable form.
26. (a) Borrower hereby grants to Lender and its respective agents,
attorneys, employees, consultants, contractors and assigns an
irrevocable license and authorization to enter upon and inspect
the Premises and all facilities located thereon at reasonable
times, subject to the inspection rights provisions afforded to
Borrower under the Leases. Lender shall make reasonable efforts
to ensure that the operations of the tenants are not disrupted.
(b) In connection with any sale or conveyance of this Deed of
Trust, Borrower grants to Lender and its respective agents,
attorneys, employees, consultants, contractors and assigns an
irrevocable license and authorization to conduct, at Lender's
expense, a Phase I environmental audit of the Premises, subject
to the inspection rights provisions afforded to Borrower under
the Leases.
(c) In the event there has been an Event of Default or in the event
Lender has formed a reasonable belief, based on its inspection
of the Premises or other factors known to it, that Hazardous
Materials may be present on the Premises, then Borrower grants
to Lender and its respective agents, attorneys, employees,
consultants, contractors and assigns an irrevocable
32
license and authorization to conduct, at Borrower's expense
using Trileaf or the firm of Borrower's choice, subject to
Lender's reasonable approval, environmental tests of the
Premises, including without limitation, a Phase I environmental
audit, subsurface testing, soil and ground water testing, and
other tests which may physically invade the Premises or
facilities (the "TESTS"). The scope of the Tests shall be such
as Lender, in its sole discretion, determines is necessary to
(i) investigate the condition of the Premises, (ii) protect the
security interests created under this Deed of Trust, or (iii)
determine compliance with Environmental Laws, the provisions of
the Loan Documents and the Environmental Indemnity and other
matters relating thereto. Lender shall make reasonable efforts
to ensure that the operations of the tenants are not disrupted.
(d) Provided no Event of Default has occurred, Lender will provide
Borrower with reasonable notice of Lender's intent to enter,
inspect and conduct the Tests provided for in this paragraph.
In addition, Lender shall conduct such inspections and Tests
during normal business hours and use reasonable efforts to
minimize disruption of the lessees' business operations.
The foregoing licenses and authorizations are intended to be a
means of protection of Lender's security interest in the
Premises and not as participation in the management of the
Premises.
27. Within 15 days after any written request by any party to this Deed of
Trust, the requested party shall certify, by a written statement duly
acknowledged, the amount of principal, interest and other Indebtedness
then owing on the Note, the terms of payment, Maturity Date and the
date to which interest has been paid. Borrower shall further certify
whether any defaults, offsets or defenses exist against the
Indebtedness secured hereby. Borrower shall also furnish to Lender,
within 30 days of its request therefor, tenant estoppel letters from
such tenants of the Premises as Lender may reasonably require; which
Lender shall not request more than one (1) time per annum.
28. (a) Borrower shall furnish to Lender within 90 days after the end
of each fiscal year of Borrower, a detailed and analytical
financial report prepared in accordance with generally accepted
accounting principles consistently applied, certified in a
manner and otherwise in form acceptable to Lender covering the
full and complete operation of the Premises, including without
limitation: (i) income and expense statements, and (ii) a
report of the leasing status of the Premises as of the end of
such period, identifying the lessee, square footage leased,
rental amount, base rental increases, rental concessions and/or
rental deferments, if any, and commencement and expiration
dates under each Lease of the Premises and a listing of sales
volumes attained by lessees of the Premises under
33
percentage leases for the immediately preceding year, and (iii)
within 15 days after written request by Lender, an aged
accounts receivable report and an annual budget. Such reports
shall be prepared by an accountant who may be an employee of
Borrower, or of an affiliate of Borrower, acceptable to Lender.
In addition to the reports referred to herein, Borrower shall
promptly supply any additional information or records relating
to the Premises or its operation as Lender may from time to
time reasonably request.
(b) Within 15 days after any written request by Lender, Borrower
shall furnish to Lender, for the most recently completed fiscal
quarter of Borrower, the reports specified in (i) and (ii)
above.
(c) Within 15 days after any written request by Lender, Borrower
shall furnish to Lender, for the most recently completed fiscal
year, a combined or consolidated federal income tax return
filed by IWRRET. Said information shall be subject to Lender's
review.
29. Each notice, consent, request, report or other communication under
this Deed of Trust or any other Loan Document (each, a "NOTICE"),
which any party hereto may desire or be required to give to the other
shall be deemed to be an adequate and sufficient notice if given in
writing and service is made by either (i) registered or certified
mail, postage prepaid, in which case notice shall be deemed to have
beer received three (3) business days following deposit to U.S. mail;
or (ii) nationally recognized overnight air courier, next day
delivery, prepaid, in which case such notice shall be deemed to have
been received one (1) business day following delivery to such
nationally recognized overnight air courier. All Notices shall be
addressed to Borrower at its address given on the first page hereof,
or to Lender at c/o Principal Real Estate Investors, LLC, 000 Xxxxx
Xxxxxx, Xxx Xxxxxx, Xxxx 00000-0000, Attn: Commercial Real Estate
Servicing, Loan No. 754044, or to such other place as any party may by
written notice to the other parties designate as a place for service
of notice, Borrower shall not be permitted to designate more than one
place for service of Notice concurrently.
30. Lender, from time to time, may substitute another Trustee in place of
the Trustee named herein, to execute the trusts hereby created; and
upon such appointment, and without conveyance to the successor
trustee, the successor trustee shall be vested with all the title,
interest, powers, duties and trusts in the Premises hereby vested in
or conferred upon Trustee herein named. Each such appointment and
substitution shall be made by written instrument executed by the
Lender containing reference to this Deed of Trust sufficient to
identify it, which instrument, when recorded in the office of the
County Recorder of the county or counties (or, in the case of the City
of St. Louis, the Recorder of Deeds for such city) in which the
Premises is situated, shall be conclusive proof of proper appointment
of the successor trustee. The recital or statement, in any instrument
34
executed by Trustee in pursuance of any of said trusts, of the due
authorization of any agent of the Trustee executing the same shall for
all purposes be conclusive proof of such authorization. In the event
any foreclosure advertisement is running or has run at the time of an
appointment of a substitute Trustee, the substitute Trustee may to the
extent permitted by applicable law, consummate the advertised sale
without the necessity of republishing such advertisement.
31. Trustee at any time, at Trustee's option, may commence and maintain
suit in any court of competent jurisdiction and obtain the aid and
direction of said court in the execution by it of the trusts or any of
them, herein expressed or contained, and, in such suit, may obtain the
orders or decrees, interlocutory or final of said court directing the
execution of said trusts, and confirming and approving Trustee's acts,
or any of them, or any sales or conveyances made by Trustee, and
adjudging the validity thereof, and directing that the purchasers of
the property sold and conveyed be let into immediate possession
thereof, and providing for orders of court or other process requiring
the Sheriff of the county in which said property is situated to place
and maintain said purchasers in quiet and peaceable possession of the
property so purchased by them, and the whole thereof.
32. Borrower has had the opportunity to fully negotiate the terms hereof
and modify the draftsmanship of the Loan Documents and the
Environmental Indemnity. Therefore, the terms of the Loan Documents
and the Environmental Indemnity shall be construed and interpreted
without any presumption, inference, or rule requiring construction or
interpretation of any provision of the Loan Documents and the
Environmental Indemnity against the interest of the party causing the
Loan Documents and the Environmental Indemnity or any portion of it to
be drafted. Borrower is entering into the Loan Documents and the
Environmental Indemnity freely and voluntarily without any duress,
economic or otherwise.
33. Borrower, forthwith upon request, at any and all times hereafter, at
the expense of Borrower, will cause to be made, executed, acknowledged
and delivered to Trustee, any and every deed or assurance in law which
Trustee or counsel of Trustee shall reasonably advise or require for
the more sure, effectual and satisfactory granting and confirming of
said Premises unto Trustee.
34. The Trustee may resign at any time upon giving written notice to
Borrower and Lender. Trustee shall not be liable or responsible for
its acts or omissions hereunder, except for Trustee's own gross
negligence or willful default, or be liable or responsible for any
acts or omissions of any agent, attorneys or employee by him employed
hereunder, if selected with reasonable care.
35. Trustee accepts this trust, when this Deed of Trust executed and
acknowledged is made a public record as provided by law. Trustee is
not obligated to notify any party hereto of pending sale under any
other deed of trust or of any action or
35
proceeding in which Borrower, Lender, or Trustee shall be a party
unless brought by Trustee.
Trustee hereby lets the Premises to Borrower and assigns until this
Deed of Trust is released and satisfied or until default is made under
the covenants and agreements hereof, on the following terms: Borrower
and all persons claiming or possessing the Premises or any part
thereof shall pay rent therefore during the term at one cent (1 CENTS)
per month payable upon demand, and shall and will surrender peaceful
possession of the Premises, and every part thereof, to Trustee
immediately on such default and without notice or demand therefore,
and thereupon Trustee shall be entitled to the Rents, revenues,
incomes and profits therefrom as hereinabove provided; provided
nothing in this Deed of Trust shall be construed to prevent Lender
from having and taking every legal means to enforce payment of the
Note, and each installment thereof, without having first enforced this
Deed of Trust.
36. This Deed of Trust and all provisions hereof shall inure to the
benefit of the heirs, successors and assigns of Lender and shall bind
the heirs and permitted successors and assigns of Borrower.
37. This Deed of Trust shall be governed by, and construed in accordance
with, the laws of the state of Missouri, without regard to its
conflicts of law principles.
38. As used herein, the term "DEFAULT RATE" means a rate equal to the
lesser of (i) four percent (4%) per annum above the then applicable
interest rate payable under the Note or (ii) the maximum rate allowed
by applicable law.
39. BORROWER AND LENDER EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE, TO THE EXTENT PERMITTED BY LAW, TRIAL BY JURY IN ANY ACTIONS
BROUGHT BY BORROWER, TRUSTEE OR LENDER IN CONNECTION WITH THIS DEED OF
TRUST, ANY OF THE LOAN DOCUMENTS, THE INDEBTEDNESS SECURED HEREBY, OR
ANY OTHER STATEMENTS OR ACTIONS OF LENDER.
40. This Deed of Trust and the Indebtedness secured hereby is for the sole
purpose of conducting or acquiring a lawful business, professional or
commercial activity or for the acquisition or management of real or
personal property as a commercial investment, and all proceeds of such
Indebtedness shall be used for said business or commercial investment
purpose. Such proceeds will not be used for the purchase of any
security within the meaning of the Securities Exchange Act of 1934, as
amended, or any regulation issued pursuant thereto, including without
limitation, Regulations U, T and X of the Board of Governors of the
Federal Reserve System. This is not a purchase money deed of trust
where a seller is providing financing to a buyer for the payment of
all or any portion of the
36
purchase price and the Premises secured hereby is not a residence or
homestead or used for mining, grazing, agriculture, timber or farming
purposes.
41. Unless Lender shall otherwise direct in writing, Borrower shall appear
in and defend all actions or proceedings purporting to affect the
security hereunder, or any right or power of the Lender, excluding any
Federal regulatory proceedings against Lender that are not instituted
because of any act or omission by Borrower, any Interest Owner or
which result from the Premises. The Lender shall have the right to
appear in such actions or proceedings. Borrower shall save Lender
harmless from all reasonable costs and expenses, including but not
limited to, reasonable attorneys' fees and costs and costs of a title
search, continuation of abstract and preparation of survey incurred by
reason of any action, suit, proceeding, hearing, motion or application
before any court or administrative body in and to which Lender may be
or become a party by reason hereof, excluding any Federal regulatory
proceedings against Lender that are not instituted because of any act
or omission by Borrower, any Interest Owner or which result from the
Premises. Such proceedings shall include but not be limited to
condemnation, bankruptcy, probate and administration proceedings, as
well as any other action, suit, proceeding, right, motion or
application wherein proof of claim is by law required to be filed or
in which it becomes necessary to defend or uphold the terms of this
Deed of Trust or the Loan Documents or otherwise purporting to affect
the security hereof or the rights or powers of Lender. All money paid
or expended by Lender in that regard, together with interest thereon
from date of such payment at the Default Rate shall be additional
Indebtedness secured hereby and shall be immediately due and payable
by Borrower without notice.
42. Upon the occurrence of an Event of Default, unless the same has been
specifically waived in writing, all Rents collected or received by
Borrower shall be accepted and held for Lender in trust and shall not
be commingled with the funds and property of Borrower, but shall be
promptly paid over to Lender.
43. If more than one, all obligations and agreements of Borrower are joint
and several.
44. This Deed of Trust may be executed in counterparts, each of which
shall be deemed an original; and such counterparts when taken together
shall constitute but one agreement.
37
45. THE FOLLOWING NOTICE IS INCLUDED IN COMPLIANCE WITH MO. REV. STAT.
SECTION 432.045: ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND
CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING
PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT
BORROWER AND LENDER FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY
AGREEMENTS REACHED BY SUCH PARTIES COVERING SUCH MATTERS ARE CONTAINED
IN THE LOAN DOCUMENTS, WHICH COLLECTIVELY ARE THE COMPLETE AND
EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES HERETO,
EXCEPT AS THEY MAY LATER AGREE IN WRITING TO MODIFY SUCH DOCUMENTS.
REMAINDER OF PAGE INTENTIONALLY BLANK
(Signatures on next page)
38
IN WITNESS WHEREOF, Borrower has caused this Deed of Trust, Security
Agreement and Assignment of Rents to be duly executed and delivered as of the
date first hereinabove written.
INLAND WESTERN TOWN AND COUNTRY
MANCHESTER, L.L.C., a Delaware limited
liability company
By: INLAND WESTERN RETAIL REAL
ESTATE TRUST, INC., a Maryland
corporation, Member
By:
-----------------------------
Name:
------------------------
Title:
-----------------------
STATE OF ILLINOIS )
)
COUNTY OF ________ )
On this ________ day of __________, in the year 2004, before me,
________________, a Notary Public in and for said state, personally appeared
_____________________, ___________________ of Inland Western Retail Real Estate
Trust, Inc., a Maryland corporation, Member of Inland Western Town And Country
Manchester, L.L.C., a Delaware limited liability company, known to me to be the
person who executed the within Deed of Trust on behalf of said corporation as
Member of Inland Western Town and Country Manchester, L.L.C., and acknowledged
to me that he/she executed the same for the purposes therein stated.
----------------------------------------------
Notary Public in and for said County and State
My Commission Expires:
----------------------------------------------
------------------------ Typed or Printed Name of Notary Public
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
XXXXXXXX & XXXXXX L.L.P.
0000 XXXXXXX XXXXXX, XXXXX 0000
XXXXXX, XXXXX 00000
ATTENTION: XXXXXX X. XXXXXX
39
EXHIBIT A
(Legal Description)
Address: 13861 and 00000 Xxxxxxxxxx Xxxx, Xxxx and Country, Missouri
Tax Parcel (Locator) No. 22P-14-0064:
TRACT I:
Adjusted Parcel One (1) of Boundary Adjustment Plat of Tracts of Land in U.S.
Survey 128 and Fractional Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 0 Xxxx, Xxxx of
Town and Country, St. Louis County, Missouri, according to the plat thereof
recorded in Plat Book 346, Pages 563 and 564 of the St. Louis County Records.
TRACT II:
Easement estate appurtenant to Tract I for the purpose of effecting repair and
maintenance work with respect to that portion of the west bank of the creek,
stream or drainway created by Warranty Deed recorded in Book 10666, Page 1902,
Records of St. Louis County, Missouri, covering and affecting the real property
more particularly described therein.
TRACT III:
Easement estate appurtenant to Tract I created in Amended and Restated
Declaration of Covenants, Conditions, Easements and Restrictions for Manchester
Xxxxxxx dated March 31, 1995, recorded in Book 10462, Page 1004, in the
Recorder's Office for the County of St. Louis, Missouri, covering and affecting
the real property more particularly described therein.
1
EXHIBIT B
Permitted Encumbrances
1. Taxes for the year 2004 and subsequent years.
2. Rights of tenants, as tenants only, under recorded tenant leases more
particularly described in Exhibit B to the Assignment of Leases and Rents
of even date herewith executed by Borrower in favor of Lender.
3. Unrecorded Lease to The Sports Authority, Inc., for a term of 20 years,
commencing upon the "date of occupancy", upon the terms and at the rentals
as more fully set forth in said Lease, a notice of which is given by the
Memorandum of Lease dated April 7, 1994 and filed June 14, 1994 in Book
10228 at Page 2406. Contains options to renew.
4. Memorandum of Lease executed by Manchester Xxxxxxx Limited Partnership,
Landlord, to Boston Chicken, Inc., Tenant, filed April 4, 1995 in Book
10464 at Page 459. Assignment of Lease executed by Boston Chicken, Inc., a
Delaware corporation, to Golden Restaurant Operations, Inc., a Delaware
corporation, filed in Book 12639 at page 359.
5. Memorandum of Lease executed by Manchester Xxxxxxx Limited Partnership,
Landlord, to Cybertel Cellular Telephone Company, Tenant, filed April 13,
1995 in Book 10472 at Page 666.
6. Notice of Lease to Payless Shoesource, Inc., according to Memorandum of
Lease dated June 26, 1995 and filed in Book 10774 at Page 784, for a term
of 10 years commencing as provided in said Lease, with one additional
option of 5 years to extend the original terms thereof, upon the terms and
conditions, and rental as more particularly described in said instrument.
7. Lease executed by Manchester-Xxxxx Limited Partnership, Lessor, to United
States Postal Service, Lessee, filed in Book 11173 at Page 1348, for a term
beginning May 1, 1997 and ending April 30, 2002, for a total of 5 years
with renewal options for 2 additional periods of 5 years each, upon the
terms and conditions, and rental as more particularly described in said
instrument.
8. Notice of Lease executed by Manchester Xxxxxxx Limited Partnership, a
Missouri partnership, Lessor, to Builders Square, Inc., a Delaware
corporation, Lessee, dated August 17, 1993 and filed in Book 11648 at Page
1748, for a term of 25 years upon the terms and conditions, and rental as
more fully set forth in said Lease.
By the instrument filed in Book 11648 at Page 1759, the above Lease was
assigned to Kmart Corporation.
1
By the instrument filed in Book 11648 at Page 1767, the above Lease was
assigned to Home Depot U.S.A.
9. Notice of Lease executed by Manchester Xxxxxxx Limited Partnership, a
Missouri limited partnership, Lessor, to PetsMart, Inc., a Delaware
corporation, Lessee, dated August 29, 2003 and filed in Book 15633 at Page
567, for a term of 15 years with 5 renewal options of 5 years each, upon
the terms and conditions, and rental as more particularly described in said
instrument.
10. Maintenance Agreement with The Metropolitan St. Louis Sewer District,
according to the instrument filed in Book 10229 at Page 550.
11. Easement(s) according to the plat filed in Plat Book 336 at Page 16, as
shown on plat of survey prepared by The Xxxxxxx Engineering Company, dated
June 16, 1995, Project No. 92057 (last revised October 13, 1995).
12. Easement(s) granted to State of Missouri for maintenance of drainage
ditches and channels by instruments filed in Book 1296 at Page 121 and Book
4623 at Page 20.
13. Sewer Dedication to The Metropolitan St. Louis Sewer District, according to
the instrument filed in Book 10983 at Page 1383.
14. Building lines, easements, and restrictions according to the plat filed in
Plat Book 346 at Pages 563 and 564.
15. Building lines, easements, covenants, conditions, and restrictions
according to the instrument(s) filed in Book 11751 at Page 1075.
16. Easement Agreement with Xxx Xxxxxxx and wife, according to the instrument
filed in Book 11751 at Page 1086.
17. Easement Agreement with Xxxx X. Xxxxxxxx and wife, according to the
instrument filed in Book 11751 at Page 1101.
18. Easement Agreement with Xxxx Xxxxxxx and wife, according to the instrument
filed in Book 11751 at Page 1116.
19. Easement Agreement with Xxx Xxxxxx and wife, according to the instrument
filed in Book 11751 at Page 1132.
20. Easement Agreement with Xxxx X. Xxxxxxx, Trustee, according to the
instrument filed in Book 11751 at Page 1148.
21. Building lines, easements, covenants, conditions, restrictions, terms, and
provisions of Final Site Development Plan filed in Plat Book 324 at Pages
11 through 15, Resource
2
Protection Plan filed in Plat Book 324 at Page 16, and Amended Final Site
Development Plan filed in Plat Book 330 at Pages 55 through 59.
22. Amended and restated Declaration of Covenants, Conditions, Easements and
Restrictions for Manchester Xxxxxxx, dated and filed March 31, 1995 in Book
10462 at Page 1004, as assigned by Assignment of Declarant's rights between
Manchester Xxxxxxx Limited Partnership, as assignor and Manchester-Xxxxx
Limited Partnership, as assignee, recorded in the Records of St. Louis
County, Missouri, and as further assigned by Assignment of Declarant's
Rights between Manchester-Xxxxx Limited Partnership, as assignor, and
Inland Western Town and Country Manchester, L.L.C., as assignee, recorded
in the records of St. Louis County, Missouri.
23. Agreement as to sewer easements between XxXxxx-Xxxx and Fee Fee Trunk Sewer
Inc. by instrument recorded in Deed Book 6620, Page 2347.
24. Easement granted to Fee Fee Trunk Sewer Inc., by instrument recorded in
Deed Book 6620, Page 2364.
25. Easement for highway traffic control purposes and traffic signal agreement
by instrument recorded in Deed Book 6440, Page 484.
26. Easement to the Metropolitan St. Louis Sewer District by instrument
recorded in Deed Book 9692, Page 1311.
3
IN WITNESS WHEREOF, Borrower has caused this Deed of Trust, Security
Agreement and Assignment of Rents to be duly executed and delivered as of the
date first hereinabove written.
INLAND WESTERN TOWN AND COUNTRY
MANCHESTER, L.L.C., a Delaware limited
liability company
By: INLAND WESTERN RETAIL REAL
ESTATE TRUST, INC., a Maryland
corporation, Member
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Secretary
STATE OF ILLINOIS )
)
COUNTY OF DUPAGE )
On this 20th day of August, in the year 2004, before me, Xxxx X. Xxxxxx, a
Notary Public in and for said state, personally appeared Xxxxx X. Xxxxxx,
Assistant Secretary of Inland Western Retail Real Estate Trust, Inc., a Maryland
corporation, Member of Inland Western Town And Country Manchester, L.L.C., a
Delaware limited liability company, known to me to be the person who executed
the within Deed of Trust on behalf of said corporation as Member of Inland
Western Town and Country Manchester, L.L.C., and acknowledged to me that he/she
executed the same for the purposes therein stated.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial
seal at my office in Oak Brook, Illinois, the date and year last written above.
/s/ Xxxx X. Xxxxxx
----------------------------------------------
Notary Public in and for said County and State
My Commission Expires: XXXX X. XXXXXX
10/18/07 ----------------------------------------------
---------------------------- Typed or Printed Name of Notary Public
RECORDING REQUESTED BY AND OFFICAL SEAL
WHEN RECORDED RETURN TO: XXXX X XXXXXX
NOTARY PUBLIC - STATE OF ILLINOIS
XXXXXXXX & KNIGHT L.L.P. MY COMMISSION EXPIRES: 10/18/07
0000 XXXXXXX XXXXXX, XXXXX 0000
XXXXXX, XXXXX 00000
ATTENTION: XXXXXX X. XXXXXX
39
