DEED OF TRUST, SECURITY AGREEMENT
AND FIXTURE FILING WITH ASSIGNMENT
OF LEASES AND RENTS
Loan No.: 179226-2
Title Co. & No.: Chicago Title
No. 240058-6
AFTER RECORDING RETURN TO:
SEATTLE-FIRST NATIONAL BANK
X.X. XXX 0000 (XXX-00)
XXXXXXX, XX 00000-0000
Attention: Xxxxx Xxxxx
XXXX Loan Admin.
THIS DEED OF TRUST is made this 24th day of June, 1992 between IDS/SHURGARD
INCOME GROWTH PARTNERS X.X. XX, a Washington limited partnership, as Grantor,
whose address is 0000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx 00000;
DWTR & J Corp. as Trustee, whose address is 0000 Xxxxxxx Xxxxxx, 0000 Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000-0000; and SEATTLE-FIRST NATIONAL BANK, a
national banking association, as Beneficiary, whose address is 000 Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxx 00000.
1. GRANTING CLAUSE
Grantor irrevocably grants, bargains, sells and conveys to Trustee in
trust, with power of sale, all Grantor's estate, right, title, interest, claim
and demand, now owned or hereafter acquired, in and to the following:
(a) The property in King County, Washington, described in
Schedule "A" attached hereto and incorporated herein by this reference (the
"Property" which term shall include all or any part of the Property, any
improvements thereon and all of the property described in this Section 1).
(b) All land lying in streets and roads adjoining the Property,
and all access rights and easements pertaining to the Property.
(c) All the lands, tenements, privileges, reversions,
remainders, irrigation and water rights and stock, oil and gas rights,
royalties, minerals and mineral rights, all development rights and credits, air
rights, hereditaments and appurtenances belonging or in any way pertaining to
the Property.
(d) All buildings, structures, improvements, fixtures, equipment
and machinery and property now or hereafter attached to or used in connection
with the use, occupancy or operation of the Property including, but not limited
to, heating and incinerating apparatus and equipment, boilers, engines, motors,
generating equipment, telephone and other communication systems, piping and
plumbing fixtures, ranges, cooking apparatus and mechanical kitchen equipment,
refrigerators, cooling, ventilating, sprinkling and vacuum cleaning systems,
fire extinguishing apparatus, gas and electric fixtures, irrigation equipment,
carpeting, underpadding, elevators, escalators, partitions, mantles, built-in
mirrors, window shades, blinds, screens, storm sash, awnings, furnishings of
public spaces, halls and lobbies, and shrubbery and plants.
All property mentioned in this subsection (d) shall be deemed part of the realty
and not severable wholly or in part without material injury to the Property.
(e) All rents, issues and profits of the Property, all existing
and future leases of the Property (including extensions, renewals and
subleases), all agreements for use and occupancy of the Property (all such
leases and agreements whether written or oral, are hereafter referred to as the
"Leases"), and all guaranties of lessees' performance under the Leases, together
with the immediate and continuing right to collect and receive all of the rents,
income, receipts, revenues, issues, profits and other income of any nature now
or hereafter due (including any income of any nature coming due during any
redemption period) under the Leases or from or arising out of the Property
including minimum rents, additional rents, percentage rents, parking or common
area maintenance contributions, tax and insurance contributions, deficiency
rents, liquidated damages following default in any Lease, all proceeds payable
under any policy of insurance covering loss of rents resulting from
untenantability caused by destruction or damage to the Property, all proceeds
payable as a result of exercise of an option to purchase the Property, all
proceeds derived from the termination or rejection of any Lease in a bankruptcy
or other insolvency proceeding, all security deposits or other deposits for the
performance of any lessee's obligations under the Leases, and all proceeds from
any rights and claims of any kind which Grantor may have against any lessee
under the Leases, and all proceeds from any rights and claims of any kind which
Grantor may have against any lessee under the Leases or any occupants of the
Property (all of the above are hereafter collectively referred to as the
"Rents"). This subsection (e) is subject to the right, power and authority
given to the Beneficiary in the Loan Documents (as defined herein) to collect
and apply the Rents.
(f) All of Grantor's rights to further encumber said Property
for debt and all Grantor's rights to enter into any lease agreement which would
create a tenancy that is or may become subordinate in any respect to any
mortgage or deed of trust other than this Deed of Trust.
The Property is not used principally or primarily for agricultural or farming
purposes.
2. COLLATERAL
The following described estate, property and rights of Grantor are also
included as security for the performance of each covenant and agreement of
Grantor contained herein and the payment of all sums of money secured hereby:
(a) All furniture, furnishings, appliances, machinery, vehicles,
equipment and all other property of any kind now or hereafter located on the
Property, used or intended to be used on the Property wherever actually located,
or purchased with the proceeds of the Note (as defined herein), and all rights
of Grantor as lessee of any property described in this Section 2 and
Subsection 1(d) above.
(b) All compensation, awards, damages, rights of action and
proceeds (including insurance proceeds and any interest on any of the foregoing)
arising out of or relating to a taking or damaging of the Property by reason of
any public or private improvement, condemnation proceeding (including change of
grade), fire, earthquake or other casualty, injury or decrease in the value of
the Property.
(c) All returned premiums or other payments on any insurance
policies pertaining to the Property and any refunds or rebates of taxes or
assessments on the Property.
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(d) All rights to the payment of money, accounts receivable,
deferred payments, refunds, cost savings, payments and deposits, whether now or
later to be received from third parties (including all utility deposits),
architectural and engineering plans, specifications and drawings, contract
rights, governmental permits and licenses, and agreements and purchase orders
which pertain to or are incidental to the design or construction of any
improvements on the Property, Grantor's rights under any payment, performance,
or other bond in connection with construction of improvements on the Property,
and all construction materials, supplies, and equipment delivered to the
Property or intended to be used in connection with the construction of
improvements on the Property wherever actually located.
(e) All contracts and agreements pertaining to or affecting the
Property including, but not limited to, management, operating and franchise
agreements, licenses, trade names and trademarks.
(f) All of Grantor's interest in and to the loan account, the
loan funds, whether disbursed or not, and Grantor's own funds now or later to be
held on deposit as equity funds or for payment of bills relating to the
Property.
(g) All commitments or agreements, now or hereafter in
existence, which will provide Grantor with proceeds to satisfy the Secured
Obligations and the right to receive the proceeds due under such commitments or
agreements including refundable deposits and fees.
(h) All books and records pertaining to any and all of the
property described above, including computer-readable memory and any computer
hardware or software necessary to access and process such memory.
(i) All additions, accessions, replacements, substitutions,
proceeds and products of the property described in this Section 2 and of any of
the Property which is personal property.
The Property and all of the property and rights described in Section 1 and
2 are referred to herein collectively as the "Collateral."
3. SECURITY AGREEMENT
To the extent that any of the Collateral may be determined to be personal
property, Grantor as debtor hereby grants Beneficiary as secured party a
security interest in all such personal property to secure payment and
performance of the Secured Obligations (defined below). This Deed of Trust
constitutes a security agreement, a financing statement and fixture filing
pursuant to the Uniform Commercial Code with respect to any and all property now
or hereafter described in any Uniform Commercial Code Financing Statement naming
Grantor as Debtor and Beneficiary as Secured Party affecting or related to the
use and enjoyment of the Property. The remedies for any violation of the
covenants, terms and conditions of the agreements herein contained shall be
(i) as prescribed herein, or (ii) by general law, or (iii) as to such part of
the security which is also reflected in any such Financing Statement by the
specific statutory consequences now or hereafter enacted and specified in the
Uniform Commercial Code, all at Beneficiary's sole election. Grantor and
Beneficiary agree that the filing of such a Financing Statement in the records
normally having to do with personal property shall never be construed as in
anywise derogating from or impairing this declaration and hereby stated
intention of the parties hereto, that everything used in connection with the
production of income from the property that is the subject of this Deed of Trust
and/or adapted for use therein and/or which is described or reflected in this
Deed of Trust is, and at all times and for all purposes and in all proceedings
both legal or equitable shall be, regarded as part of the real estate
irrespective of whether (i) any such item is physically attached to the
improvements, (ii) serial numbers are used for the better
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identification of certain equipment items capable of being thus identified in
any list filed with the Beneficiary, or (iii) any such item is referred to or
reflected in any such Financing Statement so filed at any time.
4. FINANCING STATEMENT
This Deed of Trust shall also serve as a financing statement filed for
record in the real estate records as a fixture filing pursuant to the Uniform
Commercial Code. This Deed of Trust may be given to secure an obligation
incurred for the construction of an improvement on the Property, including the
acquisition of the Property, or to secure an obligation incurred to refinance an
obligation incurred for the construction of an improvement on the Property,
including the acquisition of the Property.
5. OBLIGATIONS SECURED
THIS DEED OF TRUST IS FOR THE PURPOSE OF SECURING the following ("Secured
Obligations"):
(a) Payment of the sum of ONE MILLION EIGHT HUNDRED THOUSAND AND
NO/100 DOLLARS ($1,800,000.00) with interest thereon according to the terms of a
promissory note of even date herewith, payable to Beneficiary or order and made
by Grantor (the "Note," which term shall include all notes or other instruments
evidencing the indebtedness secured by this Deed of Trust including all
renewals, amendments, modifications or extensions thereof and substitutions
therefor). THE NOTE MAY CONTAIN PROVISIONS ALLOWING FOR CHANGES IN THE INTEREST
RATE.
(b) Payment of any further sums advanced or loaned by
Beneficiary to Grantor, or any of its successors or assigns, if (1) the Note or
other document evidencing the future advance or loan specifically states that it
is secured by this Deed of Trust or (2) the advance, including costs and
expenses incurred by Beneficiary, is made pursuant to this Deed of Trust or any
other documents executed by Grantor evidencing, securing, or relating to the
Note and/or the Collateral, whether executed prior to, contemporaneously with,
or subsequent to this Deed of Trust (this Deed of Trust, the Note and all such
other documents, including any construction or other loan agreement, are
hereafter collectively referred to as the "Loan Documents") together with
interest thereon at the rate set forth in the Note unless otherwise specified in
the Loan Documents or agreed to in writing.
(c) Performance of each agreement, term and condition set forth
or incorporated by reference in the Loan Documents, as such may be amended,
including without limitation the loan commitment dated N/A and assignment of
leases and/or rents of even date herewith, which are incorporated herein by
reference, or contained herein.
6. PERFORMANCE OF OBLIGATIONS
Grantor shall promptly and timely pay all sums due pursuant to the Loan
Documents, strictly comply with all the terms and conditions of the Loan
Documents, and perform each Secured Obligation in accordance with its terms.
7. ASSIGNMENT OF RENTS AND LEASES
Grantor hereby absolutely and irrevocably assigns to Beneficiary all
Grantor's interest in the Rents and Leases. This assignment shall be subject to
the terms and conditions of any separate assignment of leases and/or rents,
whenever executed, in favor of Beneficiary and covering the Property. Grantor
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warrants that it has made no prior assignment of the Rents or Leases and will
make no subsequent assignment without the prior written consent of Beneficiary.
(a) Unless otherwise provided in any separate assignment of
leases and/or rents, and so long as Grantor is not in default under the Loan
Documents, Grantor may collect the Rents as they become due. Grantor shall use
the Rents to pay normal operating expenses for the Property and sums due and
payments required under the Loan Documents. No Rents shall be collected for a
period subsequent to the current one month rental period and first or last
month's rent. Grantor's right to collect the Rents shall not constitute
Beneficiary's consent to the use of cash collateral in any bankruptcy
proceeding.
(b) If Grantor is in default under the Loan Documents, without
notice to Grantor, Beneficiary or its agents, or a court appointed receiver, may
collect the Rents. In doing so, Beneficiary may (a) evict lessees for
nonpayment of rent, (b) terminate in any lawful manner any tenancy or occupancy,
(c) lease the Property in the name of the then owner of such terms as it may
deem best and (d) institute proceedings against any lessee for past due rent.
The Rents received shall be applied to payment of the costs and expenses of
collecting the Rents, including a reasonable fee to Beneficiary, a receiver or
an agent, operating expenses for the Property and any sums due or payments
required under the Loan Documents, in such order as Beneficiary may determine.
Any excess shall be paid to Grantor, however, Beneficiary may withhold from any
excess a reasonable amount to pay sums anticipated to become due which exceed
the anticipated future Rents. Beneficiary's failure to collect or discontinuing
collection at any time shall not in any manner affect the subsequent enforcement
by Beneficiary of its rights to collect the Rents. The collection of the Rents
shall not cure or waive any default under the Loan Documents. Any Rents paid to
Beneficiary or a receiver shall be credited against the amount due from the
lessee under the Lease. In the event any lessee under the Lease becomes the
subject of any proceeding under the Bankruptcy Code or any other federal, state
or local statute which provides for the possible termination or rejection of the
Leases assigned hereby, Grantor covenants and agrees that in the event any of
the Leases are so rejected, no damages settlement shall be made without the
prior written consent of Beneficiary; any check in payment of damages for
rejection or termination of any such Lease will be made payable to both the
Grantor and Beneficiary; and Grantor hereby assigns any such payment to
Beneficiary and further covenants and agrees that upon request of Beneficiary,
it will duly endorse to the order of Beneficiary any such check, the proceeds of
which will be applied to any portion of the indebtedness secured hereunder in
such manner as Beneficiary may elect.
(c) Regardless of whether or not Beneficiary, in person or by
agent, takes actual possession of the Property or any part thereof, Beneficiary
is not and shall not be deemed to be:
(1) "a mortgagee in possession" for any purpose; or
(2) responsible for performing any of the obligations
of the lessor under any lease; or
(3) responsible for any waste committed by lessees or
any other parties, any dangerous or defective condition of the Property, or any
negligence in the management, upkeep, repair or control of the Property; or
(4) liable in any manner for the Property or the use,
occupancy, enjoyment or operation of all or any part of it.
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In exercising its rights under this section Beneficiary shall be liable
only for the proper application of and accounting for the Rents collected by
Beneficiary or its agents.
8. LEASES
Grantor shall fully comply with all of the terms, conditions and provisions
of the Leases so that the same shall not become in default and do all that is
needful to preserve all said Leases in force. With respect to any Lease of the
whole or any part of the Property involving an initial term of three years or
more, Grantor shall not, without the prior written consent of Beneficiary,
(a) permit assignment or subletting of all or part of the lessee's rights under
the Lease unless the right to assign or sublet is expressly reserved by the
lessee under the Lease, (b) modify or amend the Lease for a lesser rental or
term, or (c) accept surrender of the Lease or terminate the Lease except in
accordance with the terms of the Lease providing for termination in the event of
a default. Any proceeds or damages resulting from a lessee's default under any
such Lease, at Beneficiary's option, shall be paid to Beneficiary and applied
against sums owed under the Loan Documents even though such sum may not be due
and payable. Except for real estate taxes and assessments, Grantor shall not
permit any lien to be created against the Property which may be or may become
prior to any Lease. If the Property is partially condemned or suffers a
casualty, Grantor shall promptly repair and restore the Property in order to
comply with the Leases.
9. WARRANTY OF TITLE
Grantor warrants that it has good and marketable title to an indefeasible
fee simply estate in the Property, unless Grantor's present interest in the
Property is described in Schedule A as a leasehold interest, in which case
Grantor warrants that it lawfully possesses and holds a valid leasehold interest
in the Property as stated in Schedule A, and good marketable title to the
personal property Collateral, subject to no liens, encumbrances, easements,
assessments, security interests, claims or defects of any kind prior or
subordinate to the lien of this Deed of Trust, except those listed in
Beneficiary's title insurance policy or approved by Beneficiary in writing (the
"Exceptions") and real estate taxes for the current year. Grantor warrants that
the Exceptions and the real estate taxes are not delinquent or in default, and
that Grantor has the right to convey the Property to Trustee for the benefit of
Beneficiary, and the right to grant a security interest in the personal property
Collateral. Grantor will warrant and defend title to the Collateral and will
defend the validity and priority of the lien of this Deed of Trust and the
security interest granted herein against any claims or demands.
10. PROHIBITED LIENS
(a) Grantor shall not permit any governmental or statutory liens
(including tax, mechanic's or materialmen's liens) to be filed against the
Property except for real estate taxes and assessments not yet due and liens
permitted by the Loan Documents or approved by Beneficiary in writing.
(b) Grantor will have the right to contest in good faith by an
appropriate legal or administrative proceeding the validity of any prohibited
lien, encumbrance or charge so long as (i) no default exists under the Loan
Documents, (ii) Grantor first deposits with Beneficiary a bond or other security
satisfactory to Beneficiary in the amount reasonably required by Beneficiary,
but not more than one and one-half (1-1/2) (i.e., 150%) of the amount of the
claim; (iii) Grantor immediately commences its contest of such lien, encumbrance
or charge, applies to court for a show cause as provided for in
RCW 60.04.221(8), and continuously pursues the contest in good faith and with
due diligence; (iv) foreclosure of the lien, encumbrance or charge is stayed;
and (v) Grantor pays any judgment rendered for the lien claimant or other third
party within ten (10) days after the entry of the judgment. If the
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contested item is a mechanic's or materialmen's lien, Grantor will furnish
Beneficiary with an endorsement to its title insurance policy which insures the
priority of this Deed of Trust over the lien being contested. Grantor will
discharge or elect to contest and post an appropriate bond or other security
within twenty (20) days of written demand by Beneficiary.
11. PAYMENT OF TAXES AND OTHER ENCUMBRANCES
Grantor shall pay the real estate taxes and any assessments or ground rents
at least 7 days prior to delinquency unless otherwise provided for in the
reserve account described in paragraph 23 below. All other encumbrances,
charges and liens affecting the Property, including mortgages and deeds of
trust, whether prior to or subordinate to the lien of this Deed of Trust, shall
be paid when due and shall not be in default. On request Grantor shall furnish
evidence of payment of these items.
12. MAINTENANCE--NO WASTE
Grantor shall protect and preserve the Collateral and maintain it in good
condition and repair. Grantor shall do all acts and take all precautions which,
from the character and use of the Collateral, are reasonable, proper or
necessary to so maintain, protect and preserve the Collateral. Grantor shall
not commit or permit any waste of the Collateral.
13. ALTERATIONS, REMOVAL AND DEMOLITION
Grantor shall not structurally alter, remove or demolish any building or
improvement on the Property without Beneficiary's prior written consent.
Grantor shall not remove any fixture or other item of property which is part of
the Collateral without Beneficiary's prior written consent unless the fixture or
item of property is replaced by an article of equal suitability owned by Grantor
free and clear of any lien or security interest.
14. COMPLETION, REPAIR AND RESTORATION
Grantor shall promptly complete or repair and restore in good workmanlike manner
any building or improvement on the Property which may be constructed or damaged
or destroyed and shall pay all costs incurred therefor. Prior to commencement
of any construction Grantor shall submit the plans and specifications for
Beneficiary's approval and furnish evidence of sufficient funds to complete the
work.
15. COMPLIANCE WITH LAWS
Grantor shall comply with all laws, ordinances, regulations, covenants,
conditions, and restrictions affecting the Property and shall not commit or
permit any act upon or concerning the Property in violation of any such laws,
ordinances, regulations, covenants, conditions, and restrictions.
16. IMPAIRMENT OF COLLATERAL
Grantor shall not, without Beneficiary's prior written consent, change the
general nature of the occupancy of the Property, initiate, acquire or permit any
change in any public or private restrictions (including without limitation a
zoning reclassification) limiting the uses which may be made of the Property, or
take or permit any action which would impair the Collateral or Beneficiary's
lien or security interest in the Collateral.
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17. INSPECTION OF PROPERTY
Beneficiary and/or its representative may inspect the Property at
reasonable times after reasonable notice.
18. GRANTOR'S DEFENSE OF COLLATERAL
Grantor shall appear in and defend any action or proceeding which may
affect the Collateral or the rights or powers of Beneficiary or Trustee.
19. BENEFICIARY'S RIGHT TO PROTECT COLLATERAL
Beneficiary may commence, appear in, and defend any action or proceeding
which may affect the Collateral or the rights or powers of Beneficiary or
Trustee. Beneficiary may pay, purchase, contest or compromise any encumbrance,
charge or lien not listed as an Exception which in its judgment appears to be
prior or superior to the lien of this Deed of Trust. If Grantor fails to make
any payment or do any act required under the Loan Documents, Beneficiary,
without any obligation to do so and without releasing Grantor from any
obligations under the Loan Documents, may make the payment or cause the act to
be performed in such manner and to such extent as Beneficiary may deem necessary
to protect the Collateral. Beneficiary is authorized to enter upon the Property
for such purposes. In exercising any of these powers Beneficiary may incur such
expenses, in its absolute discretion, it deems necessary.
20. HAZARDOUS SUBSTANCES
(a) Grantor represents and warrants to Beneficiary that to the
best of Grantor's knowledge after due and diligent inquiry, no hazardous or
toxic waste or substances are being stored on the Property or any adjacent
property nor have any such waste or substances been stored or used in, on,
under, over or about the Property or any adjacent property prior to or during
Grantor's ownership, possession or control of the Property. Grantor agrees to
provide written notice to Beneficiary immediately upon Grantor becoming aware
that the Property or any adjacent property is being or has been contaminated
with hazardous or toxic waste or substances. Grantor will not cause nor permit
any activities on the Property which directly or indirectly could result in the
Property or any other property becoming contaminated with hazardous or toxic
waste or substances. For purposes of this Deed of Trust, the term "hazardous or
ftoxic waste or substances" means any substance or material defined or
designated as hazardous or toxic wastes, hazardous or toxic material, a
hazardous, toxic or radioactive substance or other similar term by any
applicable federal, state or local statute, regulation or ordinance now or
hereafter in effect.
(b) Grantor shall promptly comply, at Grantor's expense, with
all statutes, regulations and ordinances which apply to Grantor or the Property,
and with all orders, decrees or judgments of governmental authorities or courts
having jurisdiction which Grantor is bound by, relating to the use, collection
storage, treatment, control, removal or cleanup of hazardous or toxic substances
in, on, under, over or about the Property or in, on, under, over or about any
adjacent property that becomes contaminated with hazardous or toxic substances
as a result of construction, operations or other activities on, or the
contamination of, the Property. Beneficiary may, but is not obligated to, enter
upon the Property to inspect it for compliance and to take such actions and
incur such costs and expenses to effect such compliance as it deems advisable to
protect its interest as Beneficiary; and whether or not Grantor has actual
knowledge of the existence of hazardous or toxic substances in, on, under, over
or about the Property or any adjacent property as of the date hereof, Grantor
shall reimburse Beneficiary on demand for the full amount of all costs and
expenses incurred by Beneficiary prior to Beneficiary acquiring title to the
Property through
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foreclosure or deed in lieu of foreclosure, in connection with such compliance
activities. This Deed of Trust does not secure any separate indemnity regarding
hazardous substances not included in this Deed of Trust which may be executed by
Grantor.
(c) Grantor's obligations under this Hazardous Substances
provision are unconditional and shall not be limited by any non-recourse or
other limitations of liability provided for in any Loan Documents.
21. INSURANCE
(a) Grantor shall maintain insurance on the Property with
premiums prepaid providing replacement cost coverage and insuring against loss
by fire and such other risks covered by extended coverage insurance, flood, and
such other perils and risks, including earthquake, loss of rents and business
interruption as may be required by Beneficiary. Grantor shall also maintain
comprehensive general public liability insurance. All insurance shall be with
companies satisfactory to Beneficiary and in such amounts as required by
Beneficiary with lender's loss payable clauses in favor of and in form
satisfactory to Beneficiary. At least 30 days prior to the expiration of the
term of any insurance policy, Grantor shall furnish Beneficiary with written
evidence of renewal or issuance of a satisfactory replacement policy. If
requested Grantor shall deliver copies of all policies to Beneficiary. If
Grantor fails to maintain such insurance satisfactory to Beneficiary,
Beneficiary may make the payment on behalf of Grantor and any sums expended
shall be added to principal and bear interest at the rate of four percent
(4.000%) per annum above the rate provided in the Note. Each policy of
insurance shall provide Beneficiary with no less than forty-five (45) days prior
written notice of any cancellation, expiration, non-renewal or modification.
(b) In the event of foreclosure of this Deed of Trust all
interest of Grantor in any insurance policies pertaining to the Collateral and
in any claims against the policies and in any proceeds due under the policies
shall pass to Beneficiary.
(c) If under the terms of any Lease the lessee is required to
maintain insurance of the type required by the Loan Documents and if the
insurance is maintained for the benefit of both the lessor and Beneficiary,
Beneficiary will accept such policies provided all of the requirements of
Beneficiary and the Loan Documents are met. In the event the lessee fails to
maintain such insurance, Grantor shall promptly obtain such policies as are
required by the Loan Documents.
22. DAMAGES AND CONDEMNATION AND INSURANCE PROCEEDS
(a) Grantor hereby absolutely and irrevocably assigns to
Beneficiary, and authorizes the payor to pay to Beneficiary, the following
claims, causes of action, awards, payments and rights to payment:
(i) all awards of damages and all other compensation payable
directly or indirectly because of a condemnation, proposed
condemnation or taking for public or private use which
affects all or part of the Property or any interest in it;
and
(ii) all other awards, claims and causes of action, arising out
of any warranty affecting all or any part of the Property,
or for damage or injury to or decrease in value of all or
part of the Property or any interest in it; and
(iii) all proceeds of any insurance policies payable because of
loss sustained to all or part of the Property; and
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(iv) all interest which may accrue on any of the foregoing.
(b) Grantor shall immediately notify Beneficiary in writing if:
(i) any damage occurs or any injury or loss is sustained in the
amount of $25,000 or more to all or part of the Property, or
any action or proceeding relating to any such damage, injury
or loss is commenced; or
(ii) any offer is made, or any action or proceeding is commenced,
which relates to any actual or proposed condemnation or
taking of all or part of the Property.
If Beneficiary chooses to do so, it may in its own name appear in or
prosecute any action or proceeding to enforce any cause of action based on
warranty, or for damage, injury or loss to all or part of the Property, and it
may make any compromise or settlement of the action or proceeding. Beneficiary,
if it so chooses, may participate in any action or proceeding relating to
condemnation or taking of all or part of the Property, and may join Grantor in
adjusting any loss covered by insurance.
(c) All proceeds of these assigned claims, other property and
rights which Grantor may receive or be entitled to shall be paid to Beneficiary.
In each instance, Beneficiary shall apply those proceeds first toward
reimbursement of all Beneficiary's costs and expenses of recovering the
proceeds, including attorneys' fees.
(d) If, in any instance, each and all of the following
conditions are satisfied in Beneficiary's reasonable judgment, Beneficiary shall
permit Grantor to use the balance of the proceeds ("Net Claims Proceeds") to pay
costs of repairing or reconstructing the Property in the manner described below:
(i) The plans and specifications, cost breakdown, construction
contract, construction schedule, contractor and payment and
performance bond for the work of repair or reconstruction
must all be acceptable to Beneficiary.
(ii) Beneficiary must receive evidence satisfactory to it that
after repair or reconstruction, the Property would be at
least as valuable as it was immediately before the damage or
condemnation occurred.
(iii) The Net Claims Proceeds must be sufficient in Beneficiary's
determination to pay for the total cost of repair or
reconstruction, including all associated development costs
and interest projected to be payable on the Note until the
repair or reconstruction is complete; or Grantor must
provide its own funds in an amount equal to the difference
between the Net Claims Proceeds and a reasonable estimate,
made by Grantor and found acceptable by Beneficiary, of the
total cost of repair or reconstruction.
(iv) Beneficiary must receive evidence satisfactory to it that
all leases which it may find acceptable will continue after
the repair or reconstruction is complete.
(v) Beneficiary has received evidence satisfactory to it, that
reconstruction and/or repair can be completed at least three
months prior to the date the Note secured by this Deed of
Trust is due and payable.
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(vi) No default under any of the Loan Documents shall have
occurred and be continuing.
If it finds that the conditions are met, Beneficiary shall hold the Net
Claims Proceeds and any funds which Grantor is required to provide in a non-
interest-bearing account and shall disburse them to Grantor to pay costs of
repair or reconstruction upon presentation of evidence reasonably satisfactory
to Beneficiary that repair or reconstruction has been completed satisfactorily
and lien-free. However, if Beneficiary finds that one or more of the conditions
are not satisfied, it may apply the Net Claims Proceeds to pay or prepay some or
all of the Note.
23. RESERVE ACCOUNT
(a) If Beneficiary so requires, Grantor shall pay to Beneficiary
monthly, together with and in addition to any payments of principal and/or
interest due under the Note, a sum, as estimated by the Beneficiary, equal to
the ground rents, if any, the real estate taxes and assessments next due on the
Property and the premiums next due on insurance policies required under the Loan
Documents, less all sums already paid therefor, divided by the number of months
to elapse before 2 months prior to the date when the ground rents, real estate
taxes, assessments and insurance premiums will become delinquent. The monthly
reserve account payments and any principal and/or interest payments due shall be
paid in a single payment and applied by Beneficiary in the following order;
(1) ground rents, real estate taxes, assessments and insurance premiums,
(2) expenditures made pursuant to the Loan Documents and interest thereon,
(3) interest on the Note, and (4) principal due on the Note. Grantor shall
promptly deliver to Beneficiary all bills and notices pertaining to the ground
rents, taxes, assessments and insurance premiums.
(b) The reserve account is solely for the protection of
Beneficiary. Beneficiary shall have no responsibility except to credit properly
the sums actually received by it. No interest will be paid on the funds in the
reserve account and Beneficiary shall have no obligation to deposit the funds in
an interest-bearing account. Upon assignment of this Deed of Trust by
Beneficiary, any funds in the reserve account shall be turned over to the
assignee and any responsibility of Beneficiary with respect thereto shall
terminate. Each transfer of the Property shall automatically transfer to the
grantee all rights of Grantor to any funds in the reserve account.
(c) If the total of the payments to the reserve exceeds the
amount of payments actually made by Beneficiary, plus such amounts as have been
reasonably accumulated in the reserve account toward payments to become due,
such excess may, at Beneficiary's election, be (1) credited by Beneficiary
against sums then due and payable under the Loan Documents or (2) refunded to
Grantor as its name appears on the records of Beneficiary. If, however, the
reserve account does not have sufficient funds to make the payments when they
become due, Grantor shall pay to Beneficiary the amount necessary to make up the
deficiency within 15 days after written notice to Grantor. If this Deed of
Trust is foreclosed or if Beneficiary otherwise acquires the Property, the
Beneficiary shall, at the time of commencement of the proceedings or at the time
the Property is otherwise acquired, apply the remaining funds in the reserve
account, less such sums as will become due during the pendency of the
proceedings, against the sums due under the Loan Documents and/or to make
payments required under the Loan Documents.
(d) Unless required by the terms of Beneficiary's loan
commitment or loan agreement, Grantor shall not be required to pay pursuant to
the provisions of this Deed of Trust monthly reserve account payments so long as
there has been no more than four late payments due under the Note throughout the
loan term and there is no other default under the loan and so long as Grantor
remains in ownership of said property, provided receipted bills evidencing the
payment of all taxes and/or assessments and
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insurance premiums are exhibited to Beneficiary within 60 days following the
respective due dates of such items. Upon any change in any of these conditions,
the Beneficiary may, at its option then or thereafter exercised, enforce this
Deed of Trust section according to its terms.
24. REPAYMENT OF BENEFICIARY'S EXPENDITURES
Grantor shall pay within 10 days after written notice from Beneficiary
all sums expended by Beneficiary and all costs and expenses incurred by
Beneficiary in taking any actions pursuant to the Loan Documents including
attorneys' fees, accountants' fees, appraisal and inspection fees, and the costs
for title reports. If any laws or regulations are passed subsequent to the date
of this Deed of Trust which require Beneficiary to incur out-of-pocket expenses
in order to maintain, modify, extend or foreclose this Deed of Trust, revise the
terms of the loan secured hereby or consent to an Accelerating Transfer (as
defined herein), Grantor shall reimburse Beneficiary for such expenses within 10
days after written notice from Beneficiary. Expenditures by Beneficiary shall
bear interest from the date of such advance or expenditure at the rate of four
percent (4.000%) per annum above the interest rate then in effect under the Note
but not less than twelve percent (12.000%) per annum until paid, shall
constitute advances made under this Deed of Trust and shall be secured by and
have the same priority as the lien of this Deed of Trust. If Grantor fails to
pay any such expenditures, costs and expenses and interest thereon, Beneficiary
may, at its option, without foreclosing the lien of this Deed of trust, commence
an independent action against Grantor for the recovery of the expenditures
and/or advance any undisbursed loan proceeds to pay the expenditures.
25. ADDITIONAL SECURITY DOCUMENTS
Grantor shall within 15 days after request by Beneficiary execute and
deliver any financing statement, renewal, affidavit, certificate, continuation
statement, or other document Beneficiary may request in order to perfect,
preserve, continue, extend, or maintain security interests or liens previously
granted and the priority of the security interests or liens. Grantor shall pay
all costs and expenses incurred by Beneficiary in connection with the
preparation, execution, recording, filing, and refilling of any such document.
26. ACCELERATING TRANSFER
"Accelerating Transfer" means any sale, contract to sell, conveyance,
encumbrance, transfer of full possessory rights, or other transfer of all or any
material part of the Property or any interest in it, whether voluntary,
involuntary, by operation of law or otherwise and whether or not for record or
for consideration. If Grantor is a corporation, "Accelerating Transfer" also
means any transfer or transfers of shares possessing, in the aggregate, more
than fifty percent (50%) of the voting power. If Grantor is a partnership,
"Accelerating Transfer" also means withdrawal or removal of any general partner,
dissolution of the partnership under Washington law, or any transfer, or any
transfers of, in the aggregate, more than fifty percent (50%) of the partnership
interest. If Grantor is the majority owner of a business, either through
ownership of shares of a corporation or interest in a partnership or otherwise,
which occupies 75% or more of the improvements on the Property, "Accelerating
Transfer" also means any sale, contract to sell, or other transfer of the
business or substantial assets of the business, other than in the ordinary
course, or the failure of the business to continue to occupy the Property.
Grantor acknowledges that Beneficiary is taking actions in reliance on
the expertise, skill, experience and reliability of Grantor, thus the
obligations secured hereby include material elements similar in nature to a
personal service contract or ownership interest. In consideration of
Beneficiary's reliance, Grantor agrees that Grantor shall not make any
Accelerating Transfer unless the transfer is preceded by
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Beneficiary's express written consent to the particular transaction and
transferee. Beneficiary may withhold such consent in its sole discretion. If
Beneficiary consents, it may charge the Grantor a fee as consideration for such
consent and Grantor shall pay Beneficiary's actual costs incurred in making its
decision to consent, including but not limited to the cost of credit reports, an
appraisal of the Property, an environmental assessment and documentation. If
any Accelerating Transfer occurs without Beneficiary's prior written consent,
Beneficiary in its sole discretion may declare all sums secured by this Deed of
Trust to be immediately due and payable, and Beneficiary may invoke any rights
and remedies provided herein. This provision shall apply to each and every
Accelerating Transfer regardless of whether or not Beneficiary has consented or
waived its rights, whether by action or nonaction, in connection with any
previous Accelerating Transfer(s).
If the preceding paragraphs of this section or any part thereof relevant
to a particular Accelerating Transfer are unenforceable according to the law in
effect at the time of the Accelerating Transfer, then Grantor shall reimburse
Beneficiary for its actual costs incurred in processing the Accelerating
Transfer on its records, including but not limited to the cost of modifications
of Loan Documents, an appraisal, and obtaining relevant credit and financial
information.
27. RELEASE OF PARTIES OR COLLATERAL
Without affecting the obligations of any party under the Loan Documents
and without affecting the lien on this Deed of Trust and Beneficiary's security
interest in the Collateral, Beneficiary and/or Trustee may, without notice (a)
release all or any Grantor and/or any other party now or hereafter liable for
any of the Secured Obligations (including guarantors), (b) release all or any
part of the Collateral, (c) subordinate the lien of this Deed of Trust or
Beneficiary's security interest in the Collateral, (d) take and/or release any
other security for or guarantees of the Secured Obligations, (e) grant an
extension of time for performance of the Secured Obligations, (f) modify, waive,
forbear, delay or fail to enforce any of the Secured Obligations, (g) sell or
otherwise realize on any other security or guaranty prior to, contemporaneously
with or subsequent to a sale of all or any part of the Collateral, (h) make
advances pursuant to the Loan Documents including advances in excess of the Note
amount, (i)consent to the making of any map or plat of the Property, and (j)
join in the grant of any easement on the Property. Any subordinate lienholder
shall be subject to all such releases, extensions or modifications without
notice to or consent from the subordinate lienholder. Grantor shall pay any
Trustee's, attorneys', title insurance, recording, inspection or other fees or
expenses incurred in connection with release of Collateral, the making of a map,
plat or the grant of an easement.
28. DEFAULT--REMEDIES
Grantor's failure to comply with any term or condition of the Loan
Documents, including without limitation, this Deed of Trust and payments due on
the Note, shall constitute a default. The Note contains a late charge
provisions and Grantor agrees to pay such late charge if any payment or portion
thereof is not paid according to the terms of the Note. In the event of a
default Beneficiary may declare all amounts owed under the Loan Documents
immediately due and payable after applicable notice as set forth herein and/or
exercise its rights and remedies under the Loan Documents and applicable law
including foreclosure of this Deed of Trust judicially or non-judicially by the
Trustee pursuant to the power of sale. Beneficiary's exercise of any of its
rights and remedies shall not constitute a waiver or cure of a default.
Beneficiary's failure to enforce any default shall not constitute a waiver of
the default or any subsequent default. In the event of foreclosure, the cost of
the title premium for the trustee sale guarantee (or equivalent policy) shall be
paid for by Grantor. In the event the Loan Documents are referred to an
attorney for enforcement or preservation of Beneficiary's rights or remedies,
whether or not suit is filed or any proceedings are
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commenced, Grantor shall pay all Beneficiary's costs and expenses including
Trustee's and attorneys' fees (including attorneys' fees for any appeal,
bankruptcy proceeding or any other proceeding), accountant's fees, appraisal and
inspection fees and cost of a title report.
29. NOTICE AND OPPORTUNITY TO CURE
Notwithstanding any other provision of this Deed of Trust, Beneficiary
shall not accelerate the maturity of one or more of the Secured Obligations
because of a monetary default by Grantor unless Grantor fails to cure the
default within 10 days of the date on which Beneficiary mails or delivers
written notice of such default to Grantor. Notwithstanding any other provision
of this Deed of Trust, Beneficiary shall not accelerate the maturity of one or
more of the Secured Obligations because of a nonmonetary default by Grantor
unless Grantor fails to cure the default within 30 days of the date on which
Beneficiary mails or delivers written notice of such default to Grantor. The
thirty (30) day period to cure a nonmonetary default shall be extended up to
ninety (90) days so long as Grantor has commenced action to cure and, in
Beneficiary's opinion, is proceeding to cure the default with due diligence.
Beneficiary's agreement not to accelerate the maturity of the Secured
Obligations as set forth in this section shall not be construed to obligate
Beneficiary to forebear in any other manner and Beneficiary may pursue any other
rights or remedies which Beneficiary may have because of Grantor's default. A
monetary default is defined as a failure to perform any obligation to pay money
which arises under the Loan Documents. A nonmonetary default is defined as a
failure to perform any obligation under the Loan Documents other than one to pay
money.
30. CUMULATIVE REMEDIES
To the extent allowed by law, all Beneficiary's and Trustee's rights and
remedies specified in the Loan Documents are cumulative, not mutually exclusive
and not in substitution for any rights or remedies available in law or equity.
In order to obtain performance of Grantor's obligations under the Loan
Documents, without waiving its rights in the Collateral, Beneficiary may proceed
against Grantor or may proceed against any other security or guaranty for the
Secured Obligations, in such order and manner as Beneficiary may elect. The
commencement of proceedings to enforce a particular remedy shall not preclude
the discontinuance of the proceedings and the commencement of proceedings to
enforce a different remedy.
31. ENTRY
Beneficiary, in person, by agent or by court appointed receiver, may
enter, take possession of, manage and operate all or any part of the Property,
and may also do any and all other things in connection with those actions that
Beneficiary may in its sole discretion consider necessary and appropriate to
protect the security of this Deed of Trust. Such other things may include:
taking and possessing all of Grantor's or the then owner's books and records;
entering into, enforcing, modifying, or canceling Leases on such terms and
conditions as Beneficiary may consider proper; obtaining and evicting tenants;
fixing or modifying Rents; collecting and receiving any payment of money owing
to Grantor; completing any unfinished construction; and/or contracting for and
making repairs and alterations. Grantor hereby irrevocably constitutes and
appoints Beneficiary as its attorney-in-fact to perform such acts and execute
such documents as Beneficiary in its sole discretion may consider to be
appropriate in connection with taking these measures.
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32. APPOINTMENT OF RECEIVER
In the event of a default, Grantor consents to and Beneficiary shall be
entitled, without notice, without bond, and without regard to the adequacy of
the Collateral, to the appointment of a receiver for the Collateral. The
receiver shall have, in addition to all the rights and powers customarily given
to and exercised by a receiver, all the rights and powers granted to Beneficiary
by the Loan Documents. The receiver shall be entitled to receive a reasonable
fee for management of the Property. If Grantor is an occupant of the Property,
Beneficiary has the right to require Grantor to pay rent at fair market rates
and the right to remove Grantor from Property if Grantor fails to pay rent.
33. SALE OF PROPERTY AFTER DEFAULT
The Collateral may be sold separately or as a whole, at the option of
Beneficiary following a default. In the event of a Trustee's sale of all the
Collateral, Beneficiary hereby assigns its security interest in the personal
property Collateral to the Trustee. Beneficiary may also realize on the
personal property Collateral in accordance with the remedies available under the
Uniform Commercial Code or at law. In the event of a Trustee's sale, Grantor,
and the holder of any subordinate liens or security interest with actual or
constructive notice hereof, waive any equitable, statutory or other right they
may have to require marshaling of assets in connection with the exercises of any
of the remedies permitted by applicable law or provided herein, or to direct the
order in which any of the Collateral will be sold in the event of any sale under
this Deed of Trust or foreclosure in the inverse order of alienation.
34. FORECLOSURE OF LESSEE'S RIGHTS--SUBORDINATION
Beneficiary shall have the right, at its option, to foreclose this Deed
of Trust subject to the rights of any lessees of the Property. Beneficiary's
failure to foreclose against any lessee shall not be asserted as a claim against
Beneficiary or as a defense against any claim by Beneficiary in any action or
proceeding. Beneficiary at any time may subordinate this Deed of Trust to any
or all of the Leases except that Beneficiary shall retain its priority claim to
any condemnation or insurance proceeds.
35. REPAIRS DURING REDEMPTION
In the event of a judicial foreclosure the purchaser during any
redemption period may make such repairs and alterations to the Property as may
be reasonably necessary for the proper operation, care, preservation, protection
and insuring of the Property. Any sums so paid, together with interest from the
date of the expenditure at the rate provided in the judgment, shall be added to
the amount required to be paid for redemption of the Property.
36. RECONVEYANCE AFTER PAYMENT
Upon written request of Beneficiary stating that all obligations secured
by this Deed of Trust have been paid, Trustee shall reconvey, without warranty,
the Property then subject to the lien of this Deed of Trust. The recitals in
any reconveyance of any matters of fact shall be conclusive proof of the
truthfulness thereof. The grantee in the reconveyance may be described as "the
person or persons legally entitled thereto." Grantor shall pay any costs,
Trustee's fees and recording fees incurred in so reconveying the Property.
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37. NONWAIVER OF TERMS AND CONDITIONS
Time is of the essence with respect to performance of the obligations
due under the Loan Documents. Beneficiary's failure to require prompt
enforcement of any required obligation shall not constitute a waiver of the
obligation due or any subsequent required performance of the obligation. No
term or condition of the Loan Documents may be waived, modified or amended
except by a written agreement signed by Grantor and Beneficiary. Any waiver of
any term or condition of the Loan Documents shall apply only to the time and
occasion specified in the waiver and shall not constitute a waiver of the term
or condition at any subsequent time or occasion.
38. WAIVERS BY GRANTOR
Without affecting any of Grantor's obligations under the Loan Documents,
Grantor waives the following:
(a) Any right to require Beneficiary to proceed against any
specific party liable for sums due under the Loan Documents or to proceed
against or exhaust any specific security for sums due under the Loan Documents.
(b) Diligence, demand for performance, notice of
nonperformance, presentment, protest and notice of dishonor and notice of new or
additional indebtedness of any Grantor or any other party liable for sums due
under the Loan Documents to Beneficiary.
(c) Any defense arising out of Beneficiary entering into
additional financing or other arrangements with any Grantor or any party liable
for sums due under the Loan Documents not relating to the Property and any
action taken by Beneficiary in connection with any such financing or other
arrangements or any pending financing or other arrangements not related to the
Property.
(d) Any defense arising out of the absence, impairment, or
loss of any or all rights of recourse, reimbursement, contribution or
subrogation or any other rights or remedies of Beneficiary against any Grantor
or any other party liable for sums due under the Loan Documents or any
Collateral.
(e) Any obligation of Beneficiary to see to the proper use
and application of any proceeds advanced pursuant to the Loan Documents.
39. RIGHT OF SUBROGATION
Beneficiary is subrogated to the rights, whether legal or equitable, of
all beneficiaries, mortgagees, lienholders and owners directly or indirectly
paid off or satisfied in whole or in part by any proceeds advanced by
Beneficiary under the Loan Documents, regardless of whether these parties
assigned or released of record their rights or liens upon payment.
40. JOINT AND SEVERAL LIABILITY
If there is more than one Grantor of this Deed of Trust, their
obligations shall be joint and several.
41. STATEMENT OF AMOUNT OWING
Grantor upon request by Beneficiary will furnish a written statement
duly acknowledged of the amount due under the Loan Documents and whether any
offsets or defenses exist against the amount due.
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42. OPERATING AND FINANCIAL STATEMENTS
Grantor shall deliver to Beneficiary within 90 days following the end of
each of Grantor's fiscal years, at Grantor's expense, Grantor's financial
statement certified by Grantor to be true and correct and Grantor's most
recently filed federal tax return, financial statements of all guarantors of the
Secured Obligations certified by each guarantor respectively, and certified
operating statements in form satisfactory to Beneficiary covering the Property,
including tenant lists and current rent schedules. Beneficiary or its
authorized representative shall have access to the books and records of the
Grantor and obtain such statements at Grantor's expense if Grantor fails to
provide them as herein set forth, or at any time at Beneficiary's option if
Grantor is in default. Beneficiary shall have the option, within 60 days
following receipt of the financial and operating statements from Grantor, to
order a confirmatory examination of Grantor's books and records pertaining to
the Property. Said examination shall be at Beneficiary's expense unless, in
Beneficiary's reasonable opinion, Grantor's statements are found to contain
significant discrepancies, in which case the confirmatory audit will be at
Grantor's expense. In default thereof Beneficiary shall, in addition to all
other remedies, have the option of accelerating the maturity of the Secured
Obligations.
43. APPRAISALS
In the event of a default Beneficiary may obtain a current appraisal of
the Property which is to be paid for by Grantor. Appraisals may be commissioned
by Beneficiary when required by laws and regulations which govern Beneficiary's
lending practices. The cost of all such appraisals will be borne by Grantor.
44. MAXIMUM INTEREST RATE
If any payment of interest, fees and/or charges under the Loan Documents
shall exceed the maximum amounts permitted by any applicable law of the State of
Washington, then the payment made or to be made shall be reduced so that in no
event shall any obligor pay or Beneficiary receive an amount in excess of the
maximum amount permitted by any applicable law. If Beneficiary receives an
excess amount, it shall be treated as a prepayment of principal or shall be
returned to the payor, at Beneficiary's option.
45. EVASION OF PREPAYMENT FEE
If Grantor is in default, whether Beneficiary has accelerated the
maturity of the indebtedness or not, any tender of payment sufficient to satisfy
all sums due under the Loan Documents made at any time prior to foreclosure sale
shall constitute an evasion of the prepayment terms of the Note, if any, and
shall be deemed a voluntary prepayment. Any such payment, to the extent
permitted by law, shall include the additional payment required under the
prepayment fee provision in the Note, if any, or if at that time prepayment is
not permitted, then such payment, to the extent permitted by law, will include
an additional payment of 5% of the then principal balance.
46. PAYMENT OF NEW TAXES
If any federal, state or local law is passed subsequent to the date of
this Deed of Trust which requires Beneficiary to pay any tax because of this
Deed of Trust or the sums due under the Loan Documents (excluding income taxes),
then Grantor shall pay to Beneficiary on demand any such taxes if it is lawful
for Grantor to pay them, or, in the alternative Grantor may repay all sums due
under the Loan
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Documents plus any prepayment fee within 30 days of such demand. If it is not
lawful for Grantor to pay such taxes, then at its option Beneficiary may declare
under the Loan Documents.
47. INSOLVENCY PROCEEDINGS
Grantor or any party liable on the Secured Obligations (including
guarantors) shall not make any assignment for the benefit of creditors and shall
not permit the institution of any proceedings under any federal or state
statutes pertaining to bankruptcy, insolvency, arrangement, dissolution,
liquidation or receivership whether or not an order for relief is entered.
48. SUBSTITUTION OF TRUSTEE
Beneficiary may at any time discharge the Trustee and appoint a
successor Trustee who shall have all of the powers of the original Trustee.
49. IN-HOUSE COUNSEL FEES
Whenever Grantor is obligated to pay or reimburse Beneficiary or Trustee
for any attorneys' fees, those fees shall include the allocated costs for
services of in-house counsel.
50. NOTICES
Any notice given by Grantor, Trustee or Beneficiary shall be in writing
and shall be effective (1) on personal delivery to the party receiving the
notice or (2) on the third day after deposit in the United States mail, postage
prepaid with return receipt requested, addressed to the party at the address set
forth above, or with respect to the Grantor, to the address at which Beneficiary
customarily or last communicated with Grantor.
51. TIME
Time is of the essence in connection with all obligations of Grantor
herein.
52. SUCCESSORS AND ASSIGNS
This Deed of Trust applies to, inures to the benefit of, and binds all
parties hereto and their successors and assigns. The terms "Grantor," "Trustee"
and "Beneficiary" include their successors and assigns.
53. CONTROLLING DOCUMENT
In the event of a conflict or inconsistency between the terms and
conditions of this Deed of Trust and the terms and conditions of any other of
the Loan Documents (except for any separate assignment of rents and/or leases
and any loan agreement which shall prevail over this Deed of Trust), the terms
and conditions of this Deed of Trust shall prevail.
54. INVALIDITY OF TERMS AND CONDITIONS
If any term or condition of this Deed of Trust is found to be invalid,
the invalidity shall not affect any other term or condition of the Deed of Trust
and the Deed of Trust shall be construed as if not containing the invalid term
or condition.
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55. LEGISLATION AFFECTING BENEFICIARY'S RIGHTS
If enactment or expiration of applicable laws has the effect of
rendering any provision of the Note or this Deed of Trust unenforceable
according to its terms, Beneficiary, at its option, may require immediate
payment in full of all sums secured by this Deed of Trust and may invoke any
remedies permitted herein.
56. RULES OF CONSTRUCTION
This Deed of Trust shall be construed so that, whenever applicable, the
use of the singular shall include the plural, the use of the plural shall
include the singular, and the use of any gender shall be applicable to all
genders and shall include corporations, partnerships and limited partnerships.
57. JOINT AND SEVERAL LIABILITY
If there is more than one Grantor, their obligations hereunder are joint
and several.
58. SECTION HEADINGS
The headings to the various sections have been inserted for convenience
of reference only and shall not be used to construe this Deed of Trust.
59. APPLICABLE LAW
The Loan Documents shall be governed by and construed in accordance with
the laws of the State of Washington.
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The undersigned Grantor requests that a copy of any notices, including
but not limited to any Notice of Sale, be mailed to him at the address herein
before set forth.
GRANTOR
IDS/SHURGARD INCOME GROWTH PARTNERS X.X. XX,
a Washington limited partnership
By: Shurgard Associates X.X. XX,
a Washington limited partnership,
general partner
By: Shurgard General Partner, Inc.,
a Washington corporation,
general partner
By: Xxxxxxx Xxxx
--------------------------
Its Treasurer
By:
--------------------------
Its
----------------------
By: Xxxxxxx X. Xxxxx
---------------------------------
Xxxxxxx X. Xxxxx, general partner
By: Xxxxxx X. Xxxxx
---------------------------------
Xxxxxx X. Xxxxx, general partner
-00-
XXXXX XX XXXXXXXXXX )
)Sections
COUNTY OF KING )
On this 2nd day of July, 1992, before me personally appeared Xxxxxxx
Xxxx and ________________________, to me known (or proven on the basis of
satisfactory evidence) to be the treasurer and _________________, respectively,
of SHURGARD GENERAL PARTNER, INC., the corporation that executed the within and
foregoing instrument, and acknowledged said instrument to be the free and
voluntary act and deed of said corporation, for the uses and purposes therein
mentioned, and on oath stated that they were authorized to execute said
instrument and on oath further stated that said corporation is the general
partner of SHURGARD ASSOCIATES X.X. XX, a Washington limited partnership, and
that said corporation was authorized to execute the said instrument on behalf of
said partnership and that said instrument was the free and voluntary act and
deed of said partnership for the uses and purposes therein mentioned, and
further stated that said limited partnership is the general partner of
IDS/SHURGARD INCOME GROWTH PARTNERS X.X. XX, a Washington limited partnership,
and that SHURGARD ASSOCIATES X.X. XX was authorized to execute the said
instrument on behalf of said partnership, and that said instrument was the free
and voluntary act and deed of said partnership for the uses and purposes therein
mentioned.
In witness whereof I have hereunto set my hand and affixed my official
seal the day and year first above written.
------------------------------------------
Notary Public in and for the State of
Washington, residing at Seattle.
My appointment expires August 1, 1993.
STATE OF WASHINGTON)
)Sections
COUNTY OF KING )
On this 2nd day of July, 1992, before me personally appeared XXXXXXX X.
XXXXX, to me known (or proven on the basis of satisfactory evidence) to be the
general partner of SHURGARD ASSOCIATES X.X. XX, a Washington limited
partnership, the partnership that executed the within and foregoing instrument,
and acknowledged that he signed the same as his free and voluntary act and deed
of said partnership, for the uses and purposes therein mentioned, and on oath
stated that he was authorized to execute said instrument, and further stated
that said limited partnership is the general partner of IDS/SHURGARD INCOME
GROWTH PARTNERS X.X. XX, a Washington limited partnership, and that SHURGARD
ASSOCIATES X.X. XX was authorized to execute the said instrument on behalf of
said partnership, and that said instrument was the free and voluntary act and
deed of said partnership for the uses and purposes therein mentioned.
In witness whereof I have hereunto set my hand and affixed my official
seal the day and year first above written.
------------------------------------------
Notary Public in and for the State of
Washington, residing at Seattle.
My appointment expires August 1, 1993.
STATE OF WASHINGTON )
)Sections
COUNTY OF KING )
On this 2nd day of July, 1992, before me personally appeared XXXXXX X.
XXXXX, to me known (or proven on the basis of satisfactory evidence) to be the
general partner of SHURGARD ASSOCIATES X.X. XX, a Washington limited
partnership, the partnership that executed the within and foregoing instrument,
and acknowledged that he signed the same as his free and voluntary act and deed
of said partnership, for the uses and purposes therein mentioned, and on oath
stated that he was authorized to execute said instrument, and further stated
that said limited partnership is the general partner of IDS/SHURGARD INCOME
GROWTH PARTNERS X.X. XX, a Washington limited partnership, and that SHURGARD
ASSOCIATES X.X. XX was authorized to execute the said instrument on behalf of
said partnership, and that said instrument was the free and voluntary act and
deed of said partnership for the uses and purposes therein mentioned.
In witness whereof I have hereunto set my hand and affixed my official
seal the day and year first above written.
------------------------------------------
Notary Public in and for the State of
Washington, residing at Seattle.
My appointment expires August 1, 1993.
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