LOAN AGREEMENT
by and between
ARDEN REALTY FINANCE PARTNERSHIP, L.P.,
AS BORROWER,
and
XXXXXX BROTHERS REALTY CORPORATION
AS LENDER
Dated as of June 11, 1997
$175,000,000
TABLE OF CONTENTS
Page
----
1. DEFINITIONS AND REFERENCES. . . . . . . . . . . . . . . . . . . . . . 1
1.1. Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Definitions Incorporated by Reference . . . . . . . . . . . . . .20
1.3. Other Definitional Provisions . . . . . . . . . . . . . . . . . .20
2. THE LOAN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
2.1. Making the Loan . . . . . . . . . . . . . . . . . . . . . . . . .20
2.2. Mortgage Note . . . . . . . . . . . . . . . . . . . . . . . . . .20
2.3. Use of Loan Proceeds. . . . . . . . . . . . . . . . . . . . . . .21
2.4. Payment of Principal and Interest . . . . . . . . . . . . . . . .21
2.5. Defeasance. . . . . . . . . . . . . . . . . . . . . . . . . . . .24
2.6. Release of Property . . . . . . . . . . . . . . . . . . . . . . .26
2.7. Partial Release in Connection with a Casualty or
Taking before Defeasance Period . . . . . . . . . . . . . . . . .26
2.8. Release of All the Properties during Defeasance Period. . . . . .27
2.9. Release of Individual Mortgaged Properties During the
Defeasance Period . . . . . . . . . . . . . . . . . . . . . . . .27
2.10. Partial Release after Defeasance Period. . . . . . . . . . . . .28
2.11. Yield Maintenance. . . . . . . . . . . . . . . . . . . . . . . .29
2.11.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
2.11.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
2.12. Successor Borrower . . . . . . . . . . . . . . . . . . . . . . .30
3. REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . . . .30
3.1. Organization and Power of Borrower and General Partner. . . . . .30
3.2. Due Authorization and Execution . . . . . . . . . . . . . . . . .31
3.3. No Consents Required; No Contravention. . . . . . . . . . . . . .31
3.4. Title to Properties . . . . . . . . . . . . . . . . . . . . . . .32
3.5. Management Agreement. . . . . . . . . . . . . . . . . . . . . . .32
3.6. Leases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
3.7. Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
3.8. No Violations . . . . . . . . . . . . . . . . . . . . . . . . . .33
3.9. Other Agreements. . . . . . . . . . . . . . . . . . . . . . . . .33
3.10. Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . .34
3.11. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . .34
3.12. Regulation U . . . . . . . . . . . . . . . . . . . . . . . . . .34
3.13. Investment Company Act . . . . . . . . . . . . . . . . . . . . .34
3.14. Transactions with Affiliates . . . . . . . . . . . . . . . . . .34
3.15. Business Purpose; Non-Subordination. . . . . . . . . . . . . . .35
3.16. Permits and Licenses . . . . . . . . . . . . . . . . . . . . . .35
3.17. Patents and Trademarks . . . . . . . . . . . . . . . . . . . . .35
3.18. Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . .35
3.19. ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
3.20. No Notice of Non-Compliance. . . . . . . . . . . . . . . . . . .36
3.21. Compliance With Laws . . . . . . . . . . . . . . . . . . . . . .36
3.22. Compliance with Environmental Laws . . . . . . . . . . . . . . .36
3.23. Concerning Mortgaged Properties; Financial Statements. . . . . .36
3.24. Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
3.25. No Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
3.26. Accuracy of Information. . . . . . . . . . . . . . . . . . . . .37
3.27. Mortgage and Security Interests. . . . . . . . . . . . . . . . .38
3.28. Assignment of Leases and Rents . . . . . . . . . . . . . . . . .38
3.29. Foreign Person . . . . . . . . . . . . . . . . . . . . . . . . .38
3.30. No Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . .38
3.31. No Fraudulent Conveyance . . . . . . . . . . . . . . . . . . . .38
4. CLOSING; CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . .39
4.1. Representations, Warranties and Covenants . . . . . . . . . . . .39
4.2. Borrower's Actions. . . . . . . . . . . . . . . . . . . . . . . .39
4.3. Delivery of Documents . . . . . . . . . . . . . . . . . . . . . .39
4.3.1. 40
4.3.2. 40
4.3.3. 41
4.3.4. 41
4.3.5. 41
4.3.6. 41
4.3.7. 41
4.3.8. 42
4.3.9. 42
4.3.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
4.3.11. . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
4.3.12. . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
4.3.13. . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
4.3.14. . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
4.3.15. . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
4.3.16. . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
4.3.17. . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
4.3.18. . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
4.3.19. . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
4.3.20. . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
4.3.21. . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
4.4. Evidence of Authorization; Related Documents. . . . . . . . . . .44
4.4.1. 44
4.4.2. 45
4.4.3. 45
4.5. Closing Certificate . . . . . . . . . . . . . . . . . . . . . . .45
4.6. Management Agreement. . . . . . . . . . . . . . . . . . . . . . .45
4.7. Existing Debt . . . . . . . . . . . . . . . . . . . . . . . . . .45
4.8. Payment of Lender Costs and Origination Fee . . . . . . . . . . .45
4.9. Independent Directors . . . . . . . . . . . . . . . . . . . . . .45
4.10. Reserve Requirement. . . . . . . . . . . . . . . . . . . . . . .46
5. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . .46
5.1. Timely Payment of Amounts Due . . . . . . . . . . . . . . . . . .46
5.2. Proceeds of the Loan. . . . . . . . . . . . . . . . . . . . . . .46
5.3. Management Agreement; Ground Leases . . . . . . . . . . . . . . .46
5.3.1. 46
5.3.2. Substitute Manager. . . . . . . . . . . . . . . . . . . .48
5.4. Financial and Other Information . . . . . . . . . . . . . . . . .49
5.4.1. Quarterly Financial Statements. . . . . . . . . . . . . .49
5.4.2. Borrower's Annual Financial Statements. . . . . . . . . .49
5.4.3. Budgets . . . . . . . . . . . . . . . . . . . . . . . . .50
5.4.4. Property Operating Statistics . . . . . . . . . . . . . .50
5.4.5. Certificates Regarding Defaults . . . . . . . . . . . . .50
5.4.6. Proposed Amendments to Partnership Agreement. . . . . . .50
5.4.7. Environmental Conditions. . . . . . . . . . . . . . . . .51
5.4.8. Evidence of Tax Payments. . . . . . . . . . . . . . . . .51
5.5. Maintenance of Existence, Etc.. . . . . . . . . . . . . . . . . .51
5.6. Compliance with Applicable Laws . . . . . . . . . . . . . . . . .51
5.7. Maintenance of Books; Inspection of Properties and Books. . . . .52
5.8. Notice of Litigation; Disputes. . . . . . . . . . . . . . . . . .52
5.9. Mortgaged Property Operations; Maintenance. . . . . . . . . . . .52
5.10. Separate Existence . . . . . . . . . . . . . . . . . . . . . . .53
5.11. Cash Management. . . . . . . . . . . . . . . . . . . . . . . . .53
5.12. Independent Director . . . . . . . . . . . . . . . . . . . . . .53
5.13. Reserve Requirement. . . . . . . . . . . . . . . . . . . . . . .54
6. NEGATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . .54
6.1. Limitation on Indebtedness. . . . . . . . . . . . . . . . . . . .54
6.2. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . .54
6.3. Merger or Consolidation; Permitted Reorganization . . . . . . . .54
6.4. Single Purpose. . . . . . . . . . . . . . . . . . . . . . . . . .55
6.5. Amendments to Agreements. . . . . . . . . . . . . . . . . . . . .55
6.5.1. 55
6.5.2. 56
6.6. Distributions . . . . . . . . . . . . . . . . . . . . . . . . . .56
6.7. Permitted Transfers . . . . . . . . . . . . . . . . . . . . . . .56
7. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . .56
7.1. Default; an Event of Default. . . . . . . . . . . . . . . . . . .56
7.1.1. 56
7.1.2. 56
7.1.3. 56
7.1.4. 57
7.1.5. 57
7.1.6. 57
7.1.7. 57
7.1.8. 58
7.1.9. 58
7.1.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . .58
7.1.11. . . . . . . . . . . . . . . . . . . . . . . . . . . . .59
7.1.12. . . . . . . . . . . . . . . . . . . . . . . . . . . . .59
7.1.13. . . . . . . . . . . . . . . . . . . . . . . . . . . . .59
7.1.14. . . . . . . . . . . . . . . . . . . . . . . . . . . . .59
7.1.15. . . . . . . . . . . . . . . . . . . . . . . . . . . . .59
7.2. Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . .59
7.2.1. 59
7.2.2. 60
7.2.3. 60
7.2.4. 60
7.3. Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . .60
7.4. Default Interest. . . . . . . . . . . . . . . . . . . . . . . . .61
7.5. Default Indemnity . . . . . . . . . . . . . . . . . . . . . . . .61
8. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61
8.1. Maintenance of Insurance. . . . . . . . . . . . . . . . . . . . .61
8.2. Payment and Application of Insurance Proceeds . . . . . . . . . .61
8.3. Earthquake Insurance. . . . . . . . . . . . . . . . . . . . . . .62
9. SECURITIZATION. . . . . . . . . . . . . . . . . . . . . . . . . . . .62
9.1. Securitization. . . . . . . . . . . . . . . . . . . . . . . . . .62
9.2. No Assignment by Borrower . . . . . . . . . . . . . . . . . . . .63
9.3. Method of Payment . . . . . . . . . . . . . . . . . . . . . . . .63
10. ASSIGNMENT AND PARTICIPATION . . . . . . . . . . . . . . . . . . . .63
11. SUBSTITUTION OF PROPERTIES . . . . . . . . . . . . . . . . . . . . .64
12. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . .71
12.1. Limitation on Liability. . . . . . . . . . . . . . . . . . . . .71
12.2. Entire Agreement, Amendments . . . . . . . . . . . . . . . . . .72
12.3. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . .72
12.4. No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . .72
12.5. Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . .73
12.6. Governing Law; Consent to Jurisdiction . . . . . . . . . . . . .73
12.7. Payment of Expenses. . . . . . . . . . . . . . . . . . . . . . .73
12.7.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .73
12.7.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74
12.8. Severability . . . . . . . . . . . . . . . . . . . . . . . . . .74
12.9. Gender, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . .74
12.10. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . .74
12.11. Counterparts; Facsimiles. . . . . . . . . . . . . . . . . . . .74
12.12. No Third Party Beneficiary. . . . . . . . . . . . . . . . . . .74
12.13. No Liability of Lender. . . . . . . . . . . . . . . . . . . . .75
12.14. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . .75
LIST OF SCHEDULES
Schedule A Allocated Loan Amounts
Schedule B Ground Lease
Schedule C Description of the Land
Schedule D Engineering Surveys
Schedule 3.6 Lease Defaults
Schedule 3.22 Environmental Reports
Schedule 3.23 Equipment Leases
Schedule 3.25 Liens
Schedule 4.3.2 Mortgaged Properties
Schedule 5.11 Cash Management Procedures
LIST OF EXHIBITS
Exhibit A Form of Mortgage Note
Exhibit B Form of Mortgage
Exhibit C Ground Lessor Estoppel Certificate
Exhibit D Tenant Estoppel Certificate
Exhibit E Subordination, Non-Disturbance and
Attornment Agreement
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "AGREEMENT") is entered into as of June 11,
1997, by and between ARDEN REALTY FINANCE PARTNERSHIP, L.P., a California
limited partnership having its principal office at 0000 Xxxxxxxx Xxxxxxxxx,
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 ("BORROWER"), and XXXXXX BROTHERS REALTY
CORPORATION, a Delaware corporation, having an office at Three World Financial
Center, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("LENDER").
WHEREAS, Borrower has requested Lender to make a loan (the "LOAN") to
Borrower, and Lender has agreed to make the Loan to Borrower, for the purposes
and on the terms and conditions described herein;
WHEREAS, the Loan is evidenced by that certain Mortgage Note dated as
of the date hereof by Borrower to the order of Lender and its successors and
assigns in the principal amount of One Hundred Seventy-Five Million and No/100
Dollars ($175,000,000), which is to be secured by, among other things,
first-priority liens on Borrower's assets, consisting primarily of seventeen
office properties and related assets;
WHEREAS, the parties hereto desire to set forth their agreement
regarding the making of the Loan and the terms and conditions upon which the
Loan shall be made and repaid;
WHEREAS, without limiting any other rights that Lender has to assign
the Mortgage Note and the other Loan Documents (as hereinafter defined), Lender
may assign the Mortgage Note and the other Loan Documents, together with
mortgage loans made to other borrowers, to, among others, a Trustee (as
hereinafter defined) for the benefit of the Holders (as hereinafter defined),
who may appoint a Servicer (as hereinafter defined) and, following such
assignment, all rights of Lender hereunder will inure to the benefit of the
Trustee, for the benefit of the Holders, and to the Servicer, on behalf of the
Trustee, and the term "Lender" as used herein, shall, following such assignment,
include the Trustee and the Servicer, on behalf of the Trustee; and
WHEREAS, unless otherwise defined herein, capitalized terms used
herein shall have the meanings ascribed to them in SECTION 1.1 hereof;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. DEFINITIONS AND REFERENCES
1.1. DEFINED TERMS
Unless the context otherwise requires, capitalized terms used herein
shall have the respective meanings specified in this SECTION 1.1 (such
definitions to be equally applicable to both the singular and plural forms of
the terms defined).
1
"ACCOUNT" means the Lockbox Account, the Cash Collateral Account, the
Reserve Account, the Tax and Insurance Escrow Account or any subaccount of any
of them or any other account or subaccount thereof created pursuant to the
Cash Management Procedures.
"ACCOUNTING PERIOD" shall mean each calendar month.
"ACCOUNTING QUARTER" shall mean each of the fiscal quarters in a
calendar or a conventional 365-day fiscal year (I.E., there shall be four
consecutive Accounting Quarters of three months each).
"ACCRUED INTEREST" has the meaning ascribed to it in SECTION 2.4.4(c)
hereof.
"ADJUSTED INTEREST RATE" means the rate per annum determined on the
Anticipated Repayment Date as the greater of (i) 9.52% and (ii) the sum of (A)
three percentage points (3%) and (B) the average, calculated by linear
interpolation (rounded to three decimal places), of the yields of the United
States Treasury Constant Maturities with the terms (one longer and one shorter)
most nearly approximating those of U.S. Obligations having maturities as close
as possible to the seventh (7th) anniversary of the Anticipated Repayment Date,
as determined by Lender on the basis of Federal Reserve Statistical Release
H.15-Selected Interest rates under the heading U.S. Governmental
Security/Treasury Constant Maturities, or such other recognized source of
financial market information as may reasonably be selected by Lender, in each
case on the last Business Day of the week immediately prior to the Anticipated
Repayment Date.
"AFFILIATE" means, as to any Person, (a) any Person directly or
indirectly owning, controlling, or holding power to vote ten percent (10%) or
more of the outstanding equity securities as to the Person in question; (b) any
Person ten percent (10%) or more of whose outstanding voting securities are
directly or indirectly owned, controlled, or held with power to vote by the
Person in question; (c) any Person directly or indirectly controlling,
controlled by, or under common control with the Person in question; (d) if the
Person in question is a corporation or limited liability company, any executive
officer, director, member or manager of the Person in question or of any
corporation or limited liability company directly or indirectly controlling,
controlled by, or under common control with the Person in question; and (e) if
the Person in question is a partnership, any general partner of such
partnership. As used in this definition of "AFFILIATE," the term "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract, or otherwise.
"AGREEMENT" means this Loan Agreement, as it may be amended,
supplemented or modified from time to time.
"ALLOCATED LOAN AMOUNT" means, for any Mortgaged Property, the portion
of the Loan that is allocated to a particular Mortgaged Property, as set forth
on SCHEDULE A hereof, or if a Mortgaged Property is a Substitute Property, the
amount allocated thereto pursuant to SECTION 11 hereof.
"ANNUAL APPROVED BUDGET" shall have the meaning ascribed to such term
in SECTION 5.4.3 hereof.
2
"ANNUAL BUDGET" shall mean the operating budget, including all planned
capital expenditures, for the Mortgaged Properties prepared by Borrower for the
applicable Fiscal Year or portion thereof.
"ANTICIPATED REPAYMENT DATE" means June 10, 2004.
"ARDEN FINANCE CORP." means Arden Realty Finance, Inc., a California
corporation that is a wholly owned subsidiary of Xxxxx XXXX and is the General
Partner.
"ARDEN OP" means Arden Realty Limited Partnership, a Maryland limited
partnership, the sole limited partner of Borrower.
"XXXXX XXXX" means Arden Realty, Inc., a Maryland corporation that is
the general partner of Arden OP.
"ASSIGNMENT OF LEASES AND RENTS" means that certain Assignment of
Leases and Rents dated as of the date hereof made by Borrower to the Lender with
respect to the Mortgaged Properties.
"AUTHORIZED ACCOUNTING OFFICER" means the officer of the General
Partner who has primary responsibility for accounting matters, or one of his or
her duly authorized representatives who, as set forth in a written notice of
such officer to the Lender, is duly authorized to act on behalf of such officer
in connection with this Agreement and the other Loan Documents.
"AWARD" has the meaning ascribed to it in the Mortgage.
"BANKRUPTCY LAW" means title 11, United States Code, or any similar
federal, state or foreign law for the relief of creditors.
"BASE RATE" means 7.52% per annum.
"BORROWER" has the meaning ascribed to it in the preamble hereto.
"BORROWER DOCUMENTS" has the meaning ascribed to it in SECTION 3.26
hereof.
"BUILDING EQUIPMENT" means all machinery, equipment, fixtures
(including, but not limited to, all heating, air conditioning, plumbing,
lighting, communications and elevator fixtures) and other property of every kind
and nature whatsoever owned by Borrower, or in which Borrower has or shall have
an interest, now or hereafter located upon the Land and the Improvements, or
appurtenant thereto, and usable in connection with the present or future
operation and occupancy of the Land and the Improvements.
"BUSINESS DAY" means a day other than (i) a Saturday or a Sunday or
(ii) a day on which federally insured depository institutions in the states of
New York and Illinois and the Commonwealth of Pennsylvania are required or
authorized by law, governmental decree or executive order to be closed.
"CASH COLLATERAL ACCOUNT" has the meaning specified in SCHEDULE 5.11
hereto.
"CASH EXPENSES" shall mean, for any period after the Anticipated
Repayment Date, the Operating Expenses for the operation of the Mortgaged
Properties as set forth in an Approved Annual
3
Budget to the extent that such expenses are actually incurred by Borrower minus
payments into the Tax and Insurance Escrow Account and the Reserve Account.
"CASH MANAGEMENT PROCEDURES" shall mean the provisions of SCHEDULE
5.11 hereto.
"CASUALTY" has the meaning ascribed to it in the Mortgage.
"CERTIFICATES" has the meaning ascribed to it in SECTION 9.1 hereof.
"CLOSING" has the meaning ascribed to it in the first paragraph of
SECTION 4 hereof.
"CLOSING DATE" has the meaning ascribed to is in the first paragraph
of SECTION 4 hereof.
"CODE" means the Internal Revenue Code of 1986, as the same may be
amended from time to time, and any successor statute of similar import, and the
regulations thereunder, in each case as in effect from time to time. References
to sections of the Code shall be construed also to refer to any successor
sections and all related regulations.
"COLLATERAL" means the "PROPERTY" (as defined in the Mortgage, whether
individually or taken as a group, as the context may require), together with
such other collateral or property as may be pledged, liened or encumbered from
time to time as security for the Loan under any other Security Documents.
"COLLATERAL ASSIGNMENT OF MANAGEMENT AGREEMENT" means that certain
Collateral Assignment of Management Agreement and Subordination Agreement, dated
as of the Closing Date, by and among Borrower, Manager, and Lender in favor of
Lender.
"CONTRIBUTION AGREEMENT" means that certain Contribution Agreement
dated as of the Closing Date by and among Arden OP, Arden Finance Corp. and
Borrower, pursuant to which Arden OP agrees to contribute to Borrower, and
Borrower agrees to accept from Arden OP, the Mortgaged Properties and all
operating assets related thereto, and assume the liabilities associated with
such Mortgaged Properties, and Arden Finance Corp. agrees to contribute certain
cash amounts.
"COOPERATION AGREEMENT" means that certain Cooperation Letter
Agreement dated as of the Closing Date, by and among Borrower, Arden OP, Xxxxx
XXXX and Lender.
"DEBT" means the obligations of the Borrower under the Loan Documents,
together with all interest thereon, and all other sums, including, without
limitation, fees, expenses, commissions, premiums and indemnities, which may or
shall become due under any of the Loan Documents, including the costs and
expenses of enforcing any provision of the Loan Documents that may be
reimbursable hereunder.
"DEBT SERVICE" shall mean, with respect to any particular period of
time, scheduled interest payments under the Mortgage Note.
"DEBT SERVICE COVERAGE RATIO" shall mean a ratio for the applicable
period in which:
(a) the numerator is the Net Operating Income (excluding
interest on credit accounts) for such period; and
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(b) the denominator is the aggregate amount of interest due and
payable on the Mortgage Note or, in the event a Defeasance
Event has occurred, the Undefeased Note, for such period.
"DEBT SERVICE PERIOD" means the period commencing on (and including)
the tenth (10th) day of each calendar month (or with respect to the first Debt
Service Period, the period commencing on (and including) the Closing Date) and
ending on (and excluding) the tenth (10th) day of the next succeeding calendar
month.
"DEFAULT" has the meaning ascribed to it in SECTION 7.1 hereof.
"DEFAULT INTEREST" means (i) interest accruing on any overdue
principal amount of the Mortgage Note at a rate per annum equal to the
difference between the Default Interest Rate minus the Interest Rate, and (ii)
interest accruing on any overdue interest and any other overdue payments under
any Loan Documents at the Default Interest Rate.
"DEFAULT INTEREST RATE" has the meaning ascribed to it in SECTION 7.4
hereof.
"DEFEASANCE DATE" has the meaning ascribed to it in SECTION 2.5(a)(i).
"DEFEASANCE DEPOSIT" means an amount equal to the amount necessary to
purchase U.S. Obligations necessary to meet the Scheduled Defeasance Payments,
any costs and expenses incurred or to be incurred in the purchase of such U.S.
Obligations and any revenue, documentary stamp or intangible taxes or any other
tax or charge due in connection with the transfer of the Mortgage Note or the
Defeased Note, as applicable, the creation of the Defeased Note, if applicable,
or otherwise required to accomplish the agreements of SECTION 2.5, SECTION 2.8,
and SECTION 2.9.
"DEFEASANCE EVENT" has the meaning ascribed to it in SECTION
2.5(a)(i).
"DEFEASANCE PERIOD" has the meaning ascribed to it in SECTION 2.5(a)
hereof.
"DEFEASANCE SECURITY AGREEMENT" has the meaning ascribed to it in
SECTION 2.5(a)(vi) hereof.
"DEFEASED NOTE" has the meaning ascribed to it in SECTION 2.5(a)(v)
hereof.
"DEPOSIT SECURITY AGREEMENT" means that certain Deposit Account
Security Agreement dated as of even date even date herewith between Borrower and
Lender.
"DUE DATE" means the tenth (10th) day of each calendar month, or, if
in any calendar month the tenth (10th) day is not a Business Day, the Business
Day immediately preceding the tenth (10th) day.
"ERISA" means the Employee Retirement Income Security Act of 1974
(together with all rules and regulations promulgated thereunder), as amended,
supplemented, or modified from time to time.
5
"ERISA AFFILIATE" means any trade or business under common control (as
it is defined in SECTION 414(b) or 414(c) of the Code or SECTION 4001(b)(1) of
ERISA) with Borrower.
"ELIGIBLE ACCOUNT" means either (i) an account maintained with a
federal or state chartered depository institution or trust company, the
long-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the long-term unsecured debt obligations of the holding company of
which) are rated by each Rating Agency in one of its two highest rating
categories (or such other ratings as will not result in the rating of any of the
Certificates being reduced below their respective ratings on the Closing Date
and as to which the Rating Agencies may otherwise agree) or the short-term
unsecured debt obligations of such depository institution or trust company or
holding company, as the case may be, are rated not lower than A-1+ by the
applicable Rating Agencies, or (ii) a segregated trust account maintained with
the trust department of a federal or state chartered depository institution or
trust company acting in its fiduciary capacity provided that such account is
subject to fiduciary funds on deposit regulations (or internal guidelines)
substantially similar to 12 C.F.R. SECTION 9.10(b), or (iii) an account in any
other insured depository institution reasonably acceptable to Lender, so long as
prior to the establishment of an account in any such other depository
institution each of the Rating Agencies shall have delivered a Rating Comfort
Letter with respect thereto.
"ENGINEERING SURVEYS" means those reports of recent date prior to the
Closing Date prepared by those companies listed on SCHEDULE D concerning the
physical condition of the Mortgaged Properties.
"ENVIRONMENTAL INDEMNITY AGREEMENT" means the Environmental Indemnity
Agreement, dated as of the date hereof among Borrower, the General Partner and
Lender.
"ENVIRONMENTAL LAWS" has the meaning ascribed to it in the definition
of "Hazardous Materials" herein.
"EVENT OF DEFAULT" has the meaning ascribed to it in SECTION 7.1
hereof.
"EXCESS CASH FLOW" means, for any Accounting Period, the difference
between (i) Net Operating Income and (ii) the sum of (A) the Monthly Debt
Service Payments, (B) other Debt then due and payable to the Lender pursuant to
this Agreement or any of the other Loan Documents (other than Default Interest,
Accrued Interest, Late Payment Fees and payments required under SECTION 2.4.4(c)
hereof), and (C) in the event a Lockbox Event has occurred, to the extent not
duplicative of the foregoing, withdrawals from the Cash Collateral Account
applied pursuant to clauses (E) through (J) of SECTION 4.4 of the Cash
Management Procedures.
"EXISTING DEBT" means indebtedness in the amount of $175,000,000 owed
to an Affiliate of Lender and secured by one or more of the Mortgaged
Properties, the obligation to repay such indebtedness having been assumed by
Borrower pursuant to the Contribution Agreement.
"EXTRAORDINARY EXPENSE" shall have the meaning ascribed to such term
in SECTION 5.4.3(b) hereof.
"FINAL MATURITY DATE" means June 10, 2012.
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"FINANCIAL STATEMENTS" means the financial statements of the Borrower
furnished to the Lender from time to time pursuant to SECTIONS 5.4.1 and 5.4.2
hereof.
"FISCAL YEAR" means the period beginning January 1 of each year
through and including December 31 of such year.
"FORCE MAJEURE" means acts of God, acts of war, civil disturbance, or
governmental action, excluding any casualty customarily covered by insurance.
"GAAP" means generally accepted accounting principles in the United
States of America (as such principles may change from time to time) applied on a
consistent basis (except for changes in application as to which Borrower's
independent certified public accountants concur), both as to classification of
items and amounts, within any applicable period and as to prior periods.
"GP CERTIFICATE" means the Restated Articles of Incorporation of Arden
Finance Corp., as filed in the office of the Secretary of State of the State of
California on June 9, 1997.
"GENERAL PARTNER" means Arden Finance Corp., in its capacity as
general partner of Borrower.
"GOVERNMENTAL AUTHORITY" means any nation, government, state, or
political subdivision of any thereof, including any court or any other entity
exercising executive, legislative, regulatory, judicial, or administrative
functions of, or pertaining to, government.
"GROUND LEASE" means the lease of Land on which a portion of one (1)
of the Mortgaged Properties is located, which ground lease is more fully
described on SCHEDULE B attached hereto and incorporated herein, as the same may
be amended or extended from time to time in accordance with the terms hereof.
"GROUND LESSOR" means the ground lessor under the Ground Lease.
"GROSS INCOME FROM OPERATIONS" shall mean all income of Borrower,
computed in accordance with GAAP, derived from the ownership and operation of
the Mortgaged Properties from whatever source, including, but not limited to,
Rents, utility charges, escalations, forfeited security deposits, interest on
credit accounts, service fees or charges, license fees, parking fees, rent
concessions or credits, and other required pass-throughs but excluding sales,
use and occupancy or other taxes on receipts required to be accounted for by
Borrower to any government or governmental agency, refunds and uncollectible
accounts, sales of furniture, fixtures and equipment, proceeds of casualty
insurance and condemnation awards (other than business interruption or other
loss of income insurance), and any disbursements to the Borrower from the Tax
and Insurance Escrow Account, the Reserve Account or any other escrow fund
established by the Loan Documents.
"HAZARDOUS MATERIALS" means any substances, materials, or wastes,
whether solids, liquids or gases, that are defined as "hazardous wastes,"
"hazardous substances," "toxic substances," "radioactive materials," or other
substantially similar designations in, or otherwise subject to regulation under,
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, ("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act
of 1986 ("XXXX"), 42 U.S.C. SECTION 9601 ET SEQ.; the Toxic Substance Control
Act ("TSCA"), 15 U.S.C. SECTION 2601 ET SEQ.; the Hazardous Materials
Transportation Act, 49 U.S.C. SECTION 1802 ET SEQ.; the Resource Conservation
and
7
Recovery Act ("RCRA"), 42 U.S.C. SECTION 9601 ET SEQ.; the Clean Water Act
("CWA"), 33 U.S.C. SECTION 1251 ET SEQ.; the Safe Drinking Water Act, 42 U.S.C.
SECTION 300f ET SEQ.; the Clean Air Act ("CAA"), 42 U.S.C. SECTION 7401 ET
SEQ.; or other applicable Laws pertaining to the regulation of hazardous, toxic
or dangerous materials or wastes or the protection of the environment, including
any plans, rules, regulations, orders or ordinances adopted, or other criteria
and guidelines promulgated, pursuant to such laws, whether now or hereafter in
effect (collectively referred to herein as "ENVIRONMENTAL LAWS"). Hazardous
Materials includes, but is not limited to, polychlorinated biphenyls (PCBs),
petroleum and petroleum products and byproducts, and asbestos.
"HOLDERS" means the holders of record from time to time of the
Certificates.
"IMPROVEMENTS" means all buildings, structures, paving, sidewalks,
parking garages and other parking areas, curbing, landscaping, signage,
lighting, utilities and other improvements from time to time located on all or
any part of the Land (including, without limitation, the office buildings that
are located on the Land and any parking structures and other parking facilities
located on any of the Land), and any modifications, additions, restorations or
replacements of the whole or any part thereof.
"IMPOSITIONS" has the meaning ascribed to it in the Mortgages.
"INDEBTEDNESS" of any Person means (a) any liabilities and obligations
of such Person, contingent or otherwise, (i) in respect of borrowed money
(whether or not the recourse of the lender is to the whole of the assets of such
Person or only to a portion thereof), (ii) evidenced by bonds, notes,
debentures, or similar instruments, (iii) representing the balance deferred and
unpaid of the purchase price of any property or services, except those incurred
in the ordinary course of such Person's business that would constitute
ordinarily a trade payable to trade creditors, (iv) evidenced by bankers'
acceptances, (v) for the payment of money relating to a capitalized lease
obligation or sale/leaseback obligation (but excluding any obligations under any
Ground Lease in existence on the Closing Date that may be a capitalized lease
obligation), or (vi) evidenced by a letter of credit or a reimbursement
obligation of such person with respect to any letter of credit or (b) any
liabilities and obligations of others of the kind described in the preceding
clause (a) that such Person has guaranteed or that are otherwise its legal
liability or which are secured by any assets or property of such Person,
including, without limitation, any obligations to purchase, redeem, or acquire
any capital stock or similar interests.
"INDEPENDENT DIRECTOR" means a person who is not, and has not within
the past two years been, (i) an officer, director, employee, partner, member,
stockholder or beneficial-interest holder of the General Partner or Borrower;
(ii) an officer, director, employee, partner, member, beneficial-interest holder
or stockholder of any "Affiliate" (as defined below) of the General Partner or
Borrower; (iii) a customer or supplier of Borrower or any Affiliate thereof; or
(iv) a spouse, parent, sibling, or child of any person described in (i), (ii),
or (iii); PROVIDED, HOWEVER, that a person shall not be deemed to be a director
of an Affiliate solely by reason of such person being a director of a
single-purpose entity that would otherwise be deemed to be an Affiliate because
they are under common control. For the purpose of this definition alone,
"Affiliate" means any person or entity (i) which owns beneficially, directly or
indirectly, more than 10% of the outstanding shares of common stock of the
General Partner or which is otherwise in control of the General Partner, (ii) of
which more than 10% of the outstanding voting securities are owned beneficially,
directly or indirectly, by any person or entity described in clause (i) above,
or (iii) which is controlled by, or under common control with, any person or
entity described in clause (i) above; the terms "control" and "controlled by"
shall have the meanings assigned to them in Rule 405 under the Securities Act of
1933.
8
"INFORMATION" has the meaning ascribed to it in SECTION 5.4 hereof.
"INSURANCE PROCEEDS" has the meaning ascribed to it in any applicable
Mortgage.
"INTEREST RATE" means (i) prior to the Anticipated Repayment Date, the
Base Rate and (ii) from and after the Anticipated Repayment Date, the Adjusted
Interest Rate.
"LAND" means the parcels of land on which the Mortgaged Properties are
located, as more fully described on SCHEDULE C attached hereto.
"LAWS" means any statute or law, or any rules, regulations, orders or
determinations made by any applicable Governmental Authority, including as to
real property, but without limitation, any applicable Environmental Laws and any
zoning, building, subdivision or land use laws, rules, or ordinances.
"LEASE" means any lease or other agreement (other than a Ground lease)
affecting the use, enjoyment or occupancy of the Land or the Improvements.
"LENDER" initially means Xxxxxx Brothers Realty Corporation, together
with its successors and assigns, including, without limitation, following the
assignment and transfer contemplated by SECTION 9.1 hereof, (a) the Trustee, on
behalf of the Trust, or any of its successors and assigns, and (b) the Servicer,
on behalf of the Trustee.
"LENDER COSTS" means all of the costs and expenses of the Lender of
the kind described in SECTION 12.7.1 hereof.
"LIEN" means any mortgage, deed of trust, deed to secure debt, lien,
claim, option, security interest, pledge, preference, priority, hypothecation,
installment sale agreement, repurchase agreement or other encumbrance or
security arrangement of any kind or nature whatsoever, including, without
limitation, any conditional sale or title retention arrangement, and any
assignment, deposit arrangement, lease or other arrangement intended as, or
having the effect, of security.
"LOAN" means the loan made by Lender to Borrower pursuant to SECTION
2.1 hereof.
"LOAN AMOUNT" means One Hundred Seventy-Five Million and No/100
Dollars ($175,000,000).
"LOAN DOCUMENTS" means this Agreement, the Mortgage Note, the
Environmental Indemnity Agreement, the Collateral Assignment of Management
Agreement, the Security Agreement, the Mortgage, the Assignment of Leases and
Rents, the Deposit Security Agreement and all of the other Security Documents,
and any and all other documents, agreements, certificates, notes or other
instruments delivered pursuant to, or in connection with, the Loan.
"LOCKBOX ACCOUNT" has the meaning specified in SECTION 1.1 of SCHEDULE
5.11 of this Loan Agreement.
"LOCKBOX EVENT" has the meaning ascribed to such term in SCHEDULE 5.11
of this Loan Agreement.
9
"MANAGEMENT AGREEMENT" means that certain Management Agreement dated
as of the Closing Date by and between Borrower and Arden OP, as "Manager" or any
management agreement entered into between Borrower and a substitute manager in
accordance with SECTION 5.3 hereof.
"MANAGER" has the meaning ascribed to it in the definition of
"Management Agreement" herein, or any successor thereto, or any other Person who
becomes the manager of one or more of the Mortgaged Properties in compliance
with this Agreement.
"MONTHLY DEBT SERVICE PAYMENT" has the meaning ascribed to it in
SECTION 2.4.4 hereof.
"MORTGAGE" means the Deed of Trust, Assignment of Rents and Leases,
Security Agreement and Fixture Filing executed by Borrower and delivered to
Lender or certain trustees for the benefit of Lender with respect to the
Mortgaged Properties, which is to be recorded in the land records of each
jurisdiction in which one or more of the Mortgaged Properties are located, as
security for the Loan.
"MORTGAGE NOTE" means the promissory note described in SECTION 2.2
hereof; PROVIDED, HOWEVER, that if the principal amount of such promissory note
shall be divided at any time into one or more Defeased Notes and one or more
Undefeased Notes pursuant to SECTION 2.5(a)(v) hereof, "MORTGAGE NOTE" shall
mean, collectively, all such Undefeased Note(s) and Defeased Note(s).
"MORTGAGED PROPERTIES" means the seventeen office properties
transferred by Arden OP to Borrower, as of the Closing Date, pursuant to the
Contribution Agreement, including, without limitation, Borrower's fee or
leasehold interest in the land associated with said office properties and
Borrower's ownership interest in all Improvements, which Mortgaged Properties
are identified on SCHEDULE 4.3.2 attached hereto.
"NET OPERATING INCOME" means, for any period the amount obtained by
subtracting Operating Expenses from Gross Income from Operations.
"NET SALES PROCEEDS" means the aggregate amount of cash received by
Borrower in respect of the sale of any Mortgaged Property and related assets
less (i) the sum of all reasonable and customary out-of-pocket payments, fees,
commissions and expenses, plus interest thereon, if applicable (including,
without limitation, fees, commissions and expenses of legal counsel and
investment bankers) paid or payable to third parties and incurred in connection
with such sale, including, without limitation, the Lender, the Trustee (if any),
and the Servicer (if any), and (ii) the amount (estimated reasonably and in good
faith by Borrower) of income, franchise, sales and other applicable taxes
required to be paid by Borrower in connection with such sale.
"NEW NOTE" has the meaning ascribed to it in SECTION 2.2 hereof.
"OFFICER'S CERTIFICATE" means a certificate delivered to Lender by
Borrower which is signed by an authorized senior officer of the General Partner.
"OPERATING EXPENSES" means the total of expenses, computed in
accordance with GAAP, of whatever kind relating to the operation, maintenance
and management of the Mortgaged Properties that are incurred on a regular
monthly or other periodic basis, including without limitation, utilities,
ordinary repairs and maintenance, insurance, license fees, property taxes and
assessments, advertising expenses, management fees, payroll and related taxes,
computer processing charges,
10
operational equipment or other lease payments as approved by Lender, and other
similar costs, but excluding depreciation, Debt Service, capital expenditures
and contributions to the Reserve Fund, the Tax and Insurance Escrow Account and
any other reserves required under the Loan Documents.
"ORIGINATION FEE" means a fee equal to One Million Two Hundred
Thirty Thousand and No/100 Dollars ($1,230,000) to be paid by Borrower to Lender
on the Closing Date.
"PARTNERS" means Arden OP and Arden Finance Corp., in their
capacities as partners of Borrower.
"PARTNERSHIP AGREEMENT" means the agreement of limited
partnership of Borrower dated as of June 5, 1997 between Arden OP and Arden
Finance Corp.
"PAYMENT DIFFERENTIAL" has the meaning ascribed to it in SECTION
2.11.1 hereof.
"PERMITTED DEBT" means, as to Borrower:
(i) if no Default or Event of Default has occurred and is
continuing, purchase money Indebtedness and capitalized lease
obligations up to an aggregate amount not in excess of $3,000,000
outstanding at any one time, in each case, for the purchase or lease
of Building Equipment in the ordinary course of business (and not
inconsistent with customary industry practices), which Indebtedness
may be secured by a first priority lien on the goods and equipment
that have been so purchased or leased, provided, no such Indebtedness
shall be evidenced by a promissory note;
(ii) if no Event of Default has occurred and is continuing, (a)
unsecured Indebtedness payable or reimbursable to a tenant under a
Lease, payable or reimbursable to such tenant on account of work
performed or costs incurred (including tenant improvements) by such
tenant in connection with its occupancy of space at a Mortgaged
Property, provided such Lease is consistent with, or has been approved
by Lender if required by, SECTION 1.20.11.3 of the Mortgage, which
Indebtedness may not be evidenced by any form of promissory note and
the aggregate outstanding amount of which Indebtedness at any one time
may not exceed $5,000,000; and (b) Indebtedness solely in respect of
surety and appeal bonds, performance bonds and other obligations of a
like nature (to the extent that such incurrence does not result in the
incurrence of any obligation to repay any obligation relating to
borrowed money of others), all in the ordinary course of business in
accordance with customary industry practices and, if not in the
ordinary course, in an individual amount not to exceed $1,000,000; and
(iii) if no Event of Default has occurred and is continuing,
Indebtedness incurred to finance capital improvements, tenant
improvements, or leasing costs associated with the Mortgaged
Properties, which Indebtedness may not be secured and which
Indebtedness shall be subject to the following conditions:
(a) the aggregate of all Indebtedness incurred and outstanding
pursuant to this clause (iii) shall not exceed, at any time,
five percent (5%) of the outstanding principal amount of the
Mortgage Note;
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(b) the maturity date of any such Indebtedness shall be no
earlier than June 10, 2013;
(c) any such Indebtedness shall be subject and subordinate to
the Loan and Lender and the lender under the subordinated
indebtedness shall enter into a standstill and subordination
agreement acceptable to Lender in its sole discretion, which
shall provide, among other things, that (i) the subordinate
lender may not exercise any of its remedies so long as the
Loan is outstanding, (ii) in the event a case is commenced
by or against Borrower under any Bankruptcy Law, Lender
shall have the right to vote on behalf of the subordinate
lender in any such proceeding, (iii) the subordinate loan
may not be refinanced without the consent of Lender and (iv)
the documents evidencing or securing the subordinate loan
may not be amended without the consent of Lender; and
(d) the aggregate of the outstanding principal amount of the
Loan and the outstanding principal amounts of all such
subordinate loans shall not exceed sixty-eight percent (68%)
of the appraised value of the Mortgaged Properties
determined by "desktop appraisal" or other summary appraisal
having an effective date no earlier than thirty (30) days
prior to the funding of a subordinate loan.
"PERMITTED DEBT" means, as to the General Partner, any liability of the General
Partner in its capacity as General Partner of Borrower for Permitted Debt of
Borrower.
"PERMITTED INVESTMENTS" means any one or more of the following
obligations or securities which are payable on demand or available for
withdrawal, in each case without penalty, or which have a scheduled maturity on
or prior to the Business Day preceding the following Due Date, and having at all
times the required ratings, if any, provided for in this definition, unless each
Rating Agency shall have confirmed in writing to the Lender that a lower rating
would not result in the withdrawal, downgrading or qualification of the ratings
then assigned to the Certificates (and investments will not be disqualified as
"Permitted Investments" solely because they are issued by Lender or an Affiliate
of Lender):
(i) direct obligations of, or obligations guaranteed as to full
and timely payment of principal and interest by, the United States or
any agency or instrumentality thereof, provided that such obligations
are backed by the full faith and credit of the United States of
America, PROVIDED, HOWEVER, that the investments described in this
clause must (A) have a predetermined fixed dollar of principal due at
maturity that cannot vary or change, (B) if rated by S&P, must not
have an "r" highlighter affixed to their rating, (C) if such
investments have a variable rate of interest, such interest rate must
be tied to a single interest rate index plus a fixed spread (if any)
and must move proportionately with that index, and (D) such
investments must not be subject to liquidation prior to their
maturity;
(ii) direct obligations of, or obligations guaranteed as to
timely payment of principal and interest by, FHLMC, FNMA or the
Federal Farm Credit System, provided that any such obligation is
qualified by each Rating Agency as an investment of funds backing
securities having a long-term unsecured debt rating of "AAA",
PROVIDED,
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HOWEVER, that the investments described in this clause must (A) have a
predetermined fixed dollar of principal due at maturity that cannot
vary or change, (B) if rated by S&P, must not have an "r" highlighter
affixed to their rating, (C) if such investments have a variable rate
of interest, such interest rate must be tied to a single interest rate
index plus a fixed spread (if any) and must move proportionately with
that index, and (D) such investments must not be subject to
liquidation prior to their maturity;
(iii) demand and time deposits in, or demand notes of, or
certificates of deposit of, or bankers' acceptances having maturities
of not more than 365 days issued by, any bank or trust company,
savings and loan association or savings bank, provided that the
commercial paper or long-term unsecured debt obligations of such
depository institution or trust company (or in the case of the
principal depository institution in a holding company system, the
commercial paper or long-term unsecured debt obligations of such
holding company) are then rated not lower than the highest rating
category of each Rating Agency, in the case of commercial paper, or in
the highest category in the case of long-term debt obligations, or
such lower categories as will not result (as evidenced in writing by
each Rating Agency) in the withdrawal, downgrading or qualification of
the rating then assigned (or, prior to the Securitization, proposed
to be assigned) to the Certificates by each Rating Agency, or, in the
case of short-term debt obligations which have maturities of 30 days
or less, a rating of "A-1," PROVIDED, HOWEVER, that the investments
described in this clause must (A) have a predetermined fixed dollar of
principal due at maturity that cannot vary or change, (B) if rated by
S&P, must not have an "r" highlighter affixed to their rating, (C) if
such investments have a variable rate of interest, such interest rate
must be tied to a single interest rate index plus a fixed spread (if
any) and must move proportionately with that index, and (D) such
investments must not be subject to liquidation prior to their
maturity;
(iv) general obligations of, or obligations guaranteed by, any
state of the United States or the District of Columbia receiving
long-term debt ratings by each Rating Agency equal to the highest
rating then assigned (or, prior to the Securitization, proposed to be
assigned) to any Class of Certificates by such Rating Agency or such
lower category as will not result in the withdrawal, downgrading, or
qualification of the rating then assigned (or, prior to the
Securitization, proposed to be assigned) to the Certificates by each
Rating Agency (as evidenced in writing by each Rating Agency),
PROVIDED, HOWEVER, that the investments described in this clause must
(A) have a predetermined fixed dollar of principal due at maturity
that cannot vary or change, (B) if rated by S&P, must not have an "r"
highlighter affixed to their rating, (C) if such investments have a
variable rate of interest, such interest rate must be tied to a single
interest rate index plus a fixed spread (if any) and must move
proportionately with that index, and (D) such investments must not be
subject to liquidation prior to their maturity;
(v) commercial or finance company paper (including both
non-interest-bearing discount obligations and interest-bearing
obligations payable on demand or on a specified date not more than one
year after the date of issuance thereof) that is rated by each Rating
Agency in its highest short-term unsecured rating category, and is
issued by a corporation the outstanding senior debt obligations of
which are then rated by each Rating Agency in its highest short-term
unsecured rating category or its highest long-term unsecured rating
category, as applicable, PROVIDED, HOWEVER, that the investments
described in this clause must (A) have a predetermined fixed dollar of
principal due at
13
maturity that cannot vary or change, (B) if rated by S&P, must not
have an "r" highlighter affixed to their rating, (C) if such
investments have a variable rate of interest, such interest rate must
be tied to a single interest rate index plus a fixed spread (if any)
and must move proportionately with that index, and (D) such
investments must not be subject to liquidation prior to their
maturity;
(vi) guaranteed reinvestment agreements maturing in 365 days or
less from the date of investment issued by any bank, insurance
company, or other corporation rated in the highest rating category by
each Rating Agency provided that any such agreement must by its terms
provide that it is terminable by the purchaser without penalty in the
event any such rating is at any time lower than such level, PROVIDED,
HOWEVER, that the investments described in this clause must (A) have a
predetermined fixed dollar of principal due at maturity that cannot
vary or change, (B) if rated by S&P, must not have an "r" highlighter
affixed to their rating, (C) if such investments have a variable rate
of interest, such interest rate must be tied to a single interest rate
index plus a fixed spread (if any) and must move proportionately with
that index, and (D) such investments must not be subject to
liquidation prior to their maturity;
(vii) repurchase obligations maturing in 365 days or less
from the date of investment with respect to any security described in
clause (i) or (ii) above entered into with a depository institution or
trust company (acting as principal) meeting the rating standards
described in (iii) above, PROVIDED, HOWEVER, that the investments
described in this clause must (A) have a predetermined fixed dollar of
principal due at maturity that cannot vary or change, (B) if rated by
S&P, must not have an "r" highlighter affixed to their rating, (C) if
such investments have a variable rate of interest, such interest rate
must be tied to a single interest rate index plus a fixed spread (if
any) and must move proportionately with that index, and (D) such
investments must not be subject to liquidation prior to their
maturity, PROVIDED, HOWEVER, that the investments described in this
clause must (A) have a predetermined fixed dollar of principal due at
maturity that cannot vary or change, (B) if rated by S&P, must not
have an "r" highlighter affixed to their rating, (C) if such
investments have a variable rate of interest, such interest rate must
be tied to a single interest rate index plus a fixed spread (if any)
and must move proportionately with that index, and (D) such investments
must not be subject to liquidation prior to their maturity;
(viii) debt securities (other than stripped bonds or stripped
coupons) maturing in 365 days or less from the date of investment
bearing interest or sold at a discount that are issued by any
corporation incorporated under the laws of the United States of
America or any state thereof and rated by each Rating Agency in its
highest long-term unsecured rating category; PROVIDED, HOWEVER, that
securities issued by any such corporation will not be Permitted
Investments to the extent that investment therein would cause the
outstanding principal amount of securities issued by such corporation
that are then held as part of any Account, to exceed 20% of the
aggregate principle amount of all Permitted Investments then held in
the Accounts, PROVIDED, FURTHER, that the investments described in
this clause must (A) have a predetermined fixed dollar of principal
due at maturity that cannot vary or change, (B) if rated by S&P, must
not have an "r" highlighter affixed to their rating, (C) if such
investments have a variable rate of interest, such interest rate must
be tied to a single interest rate index plus a fixed spread (if any)
14
and must move proportionately with that index, and (D) such
investments must not be subject to liquidation prior to their
maturity;
(ix) any money market funds rated "AAAm" or "AAAm-G" (or
equivalent), PROVIDED, HOWEVER, that the investments described in this
clause must (A) have a predetermined fixed dollar of principal due at
maturity that cannot vary or change, (B) if rated by S&P, must not
have an "r" highlighter affixed to their rating, (C) if such
investments have a variable rate of interest, such interest rate must
be tied to a single interest rate index plus a fixed spread (if any)
and must move proportionately with that index, and (D) such
investments must not be subject to liquidation prior to their
maturity; and
(x) such other obligations as are acceptable as Permitted
Investments to each Rating Agency, as evidenced by the delivery by
each Rating Agency of a Rating Comfort Letter;
PROVIDED, HOWEVER, that each such instrument continues to qualify as a "cash
flow investment" pursuant to Code SECTION 860G(a)(6) earning a passive return in
the nature of interest and that no instrument or security shall be a Permitted
Investment if (i) such instrument or security evidences a right to receive only
interest payments or (ii) the right to receive principal and interest payments
derived from the underlying investment provides a yield to maturity in excess of
120% of the yield to maturity at par of such underlying investment; and
PROVIDED, FURTHER, that (a) variable interest on any such investment shall be
based on a single index and vary proportionally with such index, and no such
instrument or investment shall have a rating by the Rating Agencies with the "r"
symbol (or equivalent symbol) attached.
"PERMITTED LIENS" means any of the following:
(i) the Liens of the Mortgages and other Security Documents;
(ii) Liens for taxes, assessments and other governmental charges
not yet due and payable or due and payable, but not yet delinquent, or
that are being contested in good faith by appropriate proceedings and
as to which adequate deposits have been made with Lender as required
by SECTION 6.2;
(iii) deposits or pledges to secure the payment of workmen's
compensation, unemployment insurance or other social security benefits
or obligations, or to secure the performance of trade contracts,
leases, public or statutory obligations, surety or appeal bonds or
other obligations of a like general nature incurred in the ordinary
course of business;
(iv) landlords', mechanics', materialmen's, warehousemen's,
carriers', or other like Liens arising in the ordinary course of
business securing obligations which are not overdue for a period
longer than 30 days, or which are being contested in good faith by
appropriate proceedings which are being diligently pursued (with
deposits having been made with Lender as required by SECTION 6.2) or
as to which the Liens are bonded to the satisfaction of Lender;
(v) easements, rights of way, zoning, similar restrictions, and
other similar encumbrances or title defects that, singly or in the
aggregate, do not in any case
15
materially detract from the value of the property subject thereto (as
such property is used by Borrower);
(vi) Liens arising by operation of law in connection with
judgments, only to the extent, for an amount, and for a period not
resulting in an Event of Default with respect thereto;
(vii) Liens securing capitalized lease obligations insofar as
such Liens cover assets acquired pursuant to such capitalized lease
obligations and such capitalized lease obligations constitute
Permitted Debt; and
(viii) Liens securing assets acquired pursuant to purchase money
Indebtedness, which Indebtedness constitutes Permitted Debt.
"PERSON" means an individual, a partnership, a corporation, a
trust, an unincorporated organization, a joint venture or other business
entity, a limited liability company, or a government or any department, agency
or political subdivision thereof.
"PLAN" means any plan, program or arrangement, whether or not
written, that is or was an "employee benefit plan" as it is defined in ERISA and
(a) that was or is established or maintained by Borrower or any ERISA Affiliate;
(b) under which Borrower or any ERISA Affiliate has contributed or has been
obligated to contribute or to fund or provide benefits, or under which Borrower
or any ERISA Affiliate has any liability; or (c) that provides or promises
benefits to any person who performs or has performed services for Borrower or
any ERISA Affiliate who, because of such services, is or was a participant
therein or entitled to benefits thereunder.
"POOLING AND SERVICING AGREEMENT" has the meaning ascribed to it
in SECTION 9.1 hereof.
"PREPAYMENT DATE" means the date on which any voluntary or
involuntary prepayment of principal is made or required to be made.
"PRIME RATE" means the rate that is published from time to time
as the "prime rate" in THE WALL STREET JOURNAL listing of "Money Rates" and
shall be the average of all such rates in effect at any one time if more than
one rate is quoted. If this index ceases to be published in THE WALL STREET
JOURNAL, an alternate index of similar nature will be selected by Lender in its
reasonable discretion.
"QUALIFIED INSURANCE COMPANIES" has the meaning ascribed to it in
SECTION 1.7.2 of the form of Mortgage attached hereto as EXHIBIT B hereof.
"QUALIFIED MANAGER" has the meaning ascribed to such term in
SECTION 5.3.2 hereof.
"REMIC" has the meaning ascribed to it in SECTION 2.5 hereof.
"RATING AGENCIES" shall mean (i) prior to the Securitization,
Standard & Poor's Ratings Services, a division of the XxXxxx-Xxxx Companies,
Inc., and Xxxxx'x Investors Services, Inc. (except that, where a particular
provision in any Loan Document specifies one or more Rating Agencies by name,
"RATING AGENCIES" shall mean the rating agency or rating agencies so specified)
and (ii) after the Securitization, such of the following as actually rate the
securities issued in connection with the
16
Securitization: Standard & Poor's Ratings Services, a division of the
XxXxxx-Xxxx Companies, Inc., Xxxxx'x Investors Service, Inc., Duff & Xxxxxx
Credit Rating Co., Fitch Investors Service, L.P., or any other nationally
recognized statistical rating agency selected by Lender.
"RATING COMFORT LETTER" with respect to any event or proposed course
of action or inaction, means a written confirmation from the Rating Agencies
that no rating assigned by such Rating Agencies to any of the Certificates will
be downgraded, qualified or withdrawn, or placed on a credit watch with negative
implications, as a result of such event or proposed action or inaction; provided
that if the Securitization has not taken (or as certified by Lender, will not
take) the form of a transaction rated by the Rating Agencies, then "RATING
COMFORT LETTER" shall instead mean that the matter in question shall be subject
to the prior approval of Lender, which shall not be unreasonably withheld unless
expressly stated to be in Lender's sole and absolute discretion.
"REFERENCE PERIOD" means the twelve (12) full consecutive calendar
months ended immediately preceding the date as of which any determination with
respect to a Reference Period is made hereunder and for which internal financial
statements of Borrower are available. As used herein, the Reference Period
"applicable" to any sale of a Mortgaged Property, Release, or other event shall
mean the Reference Period immediately preceding such event for which internal
financial statements of the Borrower are available.
"REINVESTMENT YIELD" has the meaning ascribed to it in SECTION 2.11.2
hereof.
"RELEASE" means the release of one or more Mortgaged Properties from
the Lien of the Mortgage and the other Security Documents pursuant to the
provisions of SECTION 2.7, SECTION 2.8, SECTION 2.9 or SECTION 2.10 hereof.
"RELEASED" shall have a correlative meaning.
"RELEASE PRICE" means, with respect to a specified Mortgaged Property,
125% of the Allocated Loan Amount for such Mortgaged Property, PROVIDED,
HOWEVER, that in no event shall the Release Price for a Mortgaged Property be
greater than the then outstanding aggregate principal amount of the Loan.
"REMAINING MORTGAGED PROPERTIES" means the Mortgaged Properties that
will remain subject to the Lien of any Mortgage following a Release or several
Releases to be made on the same day.
"RENTS" means all rents, rent equivalents, moneys payable as damages
or in lieu of rent or rent equivalents, royalties (including, without
limitation, all oil and gas or other mineral royalties and bonuses, if any),
income, receivables, receipts, revenues, deposits (including, without
limitation, security, utility and other deposits), accounts, cash, issues,
profits, charges for services rendered, and other consideration of whatever form
or nature received by or paid to or for the account of or benefit of Borrower or
its agents or employees from any and all sources arising from or attributable to
the Mortgaged Properties, or any portion thereof, and proceeds, if any, from
business interruption or other loss of income insurance.
"RESERVE ACCOUNT" has the meaning ascribed to such term in SCHEDULE
5.11 of this Loan Agreement
"RESERVE REQUIREMENT" means Four Million Dollars ($4,000,000).
17
"RESTORATION" has the meaning ascribed to it in the form of Mortgage
attached hereto as EXHIBIT B.
"S&P" means Standard & Poor's Ratings Services, a division of the
XxXxxx-Xxxx Companies, Inc.
"SCHEDULED DEFEASANCE PAYMENTS" has the meaning ascribed to it in
SECTION 2.5(b) hereof.
"SEC" means the Securities and Exchange Commission of the United
States of America.
"SECURITIZATION" has the meaning ascribed to it in SECTION 9.1 hereof.
"SECURITY AGREEMENT" means that certain Security Agreement dated as of
even date herewith between Borrower and the Lender.
"SECURITY DOCUMENTS" means, collectively or individually, as the
context may require, the Mortgages, the Collateral Assignment of Management
Agreement, the Assignments of Leases and Rents, the Security Agreement, the
Deposit Security Agreement and such other documents as are executed and
delivered by any Person to grant additional security for the repayment of the
Loan.
"SERVICER" has the meaning ascribed to it in SECTION 9.1 hereof.
"SINGLE PURPOSE" means, with respect to a Person, that such Person,
(A) at all times since its formation, except as otherwise permitted in or
contemplated by the Loan Documents (i) has been a duly formed and existing
limited partnership, limited liability company, or corporation, as the case may
be; (ii) has observed all customary formalities regarding its partnership,
limited liability company or corporate existence; (iii) has maintained financial
statements, accounting records, and other partnership, limited liability
company, or corporate documents separate from those of any other Person
(PROVIDED that nothing shall prohibit such Person from being included in the
consolidated financial statements or tax group of another Person); (iv) has not
commingled its assets with those of any other Person; (v) has paid its own
liabilities out of its own funds, including funds contributed to its capital by
its respective equity holders, and all such capital contributions have been
reflected properly in its books and records; (vi) has allocated fairly and
reasonably any overhead for shared office expenses; (vii) has identified itself
in all dealings with the public, under its own name and as a separate and
distinct entity (PROVIDED that nothing shall prohibit such Person from engaging
a manager to represent such Person with respect to tenants, vendors, and other
parties, in accordance with standard industry practice); (viii) has not
identified itself as being a division or part of any other Person; (ix) has not
identified any other Person as being a division or part of such Person; (x) has
corrected any known misunderstanding regarding their separate identities; (xi)
has been adequately capitalized in light of the nature of its business; (xii)
has not assumed or guaranteed the obligations of any other Person (other than by
virtue of being a general partner of such other Person but only if such other
Person is Borrower and PROVIDED, that this clause shall not be deemed to be
violated by reason of joint and several liabilities arising as a matter of law);
and (xiii) has not engaged in any other business other than as permitted by the
Loan Documents, (B) such person has agreed to or is subject to covenants
substantially to the effect of SECTIONS 5.10, 5.12, 6.1, 6.3, 6.4 and 6.5 hereof
and (C) if such Person is an entity, such person's organizational documents
contain restrictions similar to those contained in Article II of the GP
Certificate as in effect on the date hereof.
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"SUBSTANTIVE NON-CONSOLIDATION OPINION" means an opinion of counsel
substantially similar to the provisions of the opinion of Borrower's counsel
delivered on the Closing Date to the effect that the assets and liabilities of
Borrower or the General Partner will not be substantively consolidated with
those of Arden OP or Xxxxx XXXX in the event that Arden OP or Xxxxx XXXX were
to become the subject of bankruptcy or insolvency proceedings (with such
changes as are necessary to reflect the identity and operations of the parties
addressed in such Substantive Non-Consolidation Opinion).
"SUBSTITUTE PROPERTY" has the meaning ascribed to it in SECTION 11
hereof.
"SUBSTITUTED PROPERTY" has the meaning ascribed to it in SECTION 11
hereof.
"SUBSTITUTION CONDITIONS" has the meaning ascribed to it in SECTION 11
hereof.
"SUCCESSOR BORROWER" has the meaning ascribed to it in SECTION 2.12
hereof.
"TAKING" has the meaning ascribed to it in any applicable Mortgage.
"TAX AND INSURANCE ESCROW ACCOUNT" shall have the meaning ascribed to
such term in SECTION 5.11 hereof.
"TITLE COMPANY" has the meaning ascribed to it in SECTION 4.3.2
hereof.
"TITLE INSURANCE POLICY" and "TITLE INSURANCE POLICIES" have the
meanings ascribed to them in SECTION 4.3.2 hereof.
"TRANSACTION DOCUMENTS" means the Loan Documents, the Contribution
Agreement, and all documents to be delivered pursuant to the terms hereof and
thereof or that are executed and delivered by Borrower in connection with the
transactions contemplated hereby or thereby.
"TREASURY RATE" has the meaning ascribed to it in SECTION 2.11.2
hereof.
"TRUST FUND" has the meaning ascribed to it in SECTION 12.7.2 hereof.
"TRUSTEE" has the meaning ascribed to it in SECTION 9.1 hereof.
"U.C.C." or "UNIFORM COMMERCIAL CODE" means the Uniform Commercial
Code as in effect in the State of New York or, in the case of any particular
item of real or tangible personal property, in the State in which such
property is located.
"U.S. OBLIGATIONS" means direct, non-callable obligations of the
United States of America.
"UNDEFEASED NOTE" has the meaning ascribed to it in SECTION 2.5(a)(v)
hereof.
"YIELD MAINTENANCE PAYMENT" has the meaning ascribed to it in SECTION
2.11.1 hereof.
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1.2. DEFINITIONS INCORPORATED BY REFERENCE
Any term defined in SECTION 1.1 by reference to another agreement,
instrument or other document shall mean such agreement, instrument or document
as it may be amended, supplemented or modified from time to time, but only to
the extent such amendment, supplement or modification is permitted by the terms
hereof. If any such agreement, instrument or other document shall be replaced
or superseded in accordance with the terms hereof (for example, if the
Management Agreement is replaced by an agreement with another Qualified Manager,
the definition incorporated by reference in SECTION 1.1 to such agreement,
instrument or other document shall thereafter have the meaning established under
the replaced or superseded document, with any such changes as (a) shall be
necessary to conform to the replacement or superseding agreement, instrument or
document or (b) are otherwise agreed to by the Lender in writing.
1.3. OTHER DEFINITIONAL PROVISIONS
The terms defined in SECTION 1.1 hereof may not comprise all of the
defined terms contained in this Agreement. Capitalized terms not defined in
SECTION 1.1 hereof shall have the meanings ascribed to them elsewhere herein.
Accounting terms used in this Agreement but not defined herein shall have the
respective meanings given to them under GAAP. The words "hereof," "herein" and
"hereunder" and words of similar character when used in this Agreement shall
refer to this Agreement as a whole and shall not be limited to any particular
provision of this Agreement.
2. THE LOAN
2.1. MAKING THE LOAN
In reliance upon the representations, warranties, covenants and
agreements of Borrower contained herein and in the other Loan Documents, and
upon full satisfaction by Borrower of the terms and conditions precedent set
forth in ARTICLE 4 of this Agreement, Lender agrees to make a loan (the
"LOAN") to Borrower, which Loan shall be advanced to Borrower in a single
advance of immediately available funds equal to the Loan Amount. The Loan
Amount shall be used solely for the purposes described in SECTION 2.3 hereof.
The Loan will be secured by, among other things, a Mortgage encumbering the
Mortgaged Properties and other Improvements and granting a lien on and
security interest in certain other Property described in the Mortgage and by
other Security Documents effecting and granting a lien on and security
interest in such other Collateral, and shall bear interest at the rates per
annum specified in SECTION 2.4 hereof. Notwithstanding that Borrower will
receive an advance only of the Net Loan Proceeds, Borrower shall be required
to repay the full Loan Amount in the manner described herein.
2.2. MORTGAGE NOTE
The obligation of Borrower to repay the full Loan Amount, together
with interest thereon, and Yield Maintenance Payments, Defeasance Deposits and
other charges, if any, related thereto, shall be evidenced by that certain
Mortgage Note made by Borrower as of the Closing Date to the order of Lender
(the "MORTGAGE NOTE"), substantially in the form of EXHIBIT A attached hereto
and
20
incorporated herein, in the original principal amount of One Hundred
Seventy-Five Million and No/100 Dollars ($175,000,000).
The Borrower hereby irrevocably appoints the Lender and its successors
and assigns, with full power of substitution, as its attorney-in-fact, solely
for the purpose, from time to time in connection with a foreclosure on any
Mortgaged Property following an Event of Default and/or acceleration of the
maturity of the Loan, of executing two or more promissory notes (each, a "NEW
NOTE") substantially in the form of EXHIBIT A, with an aggregate face
principal balance equal to the principal amount then outstanding under the
Mortgage Note (with a notation on each such New Note as to the outstanding
principal amount of the Loan allocated to each such New Note) and marking each
promissory note that is to be replaced with such New Notes (whether the original
Mortgage Note or any Defeased Note or Undefeased Note) "SUBSTITUTED." Such
power of attorney is a limited power of attorney coupled with an interest.
2.3. USE OF LOAN PROCEEDS
Borrower agrees that the proceeds of the Loan shall be used solely for
the purpose of repaying or causing repayment of a portion of the Existing Debt
(the obligation to repay such indebtedness having been assumed by Borrower
pursuant to the Contribution Agreement), including the payment of fees and
expenses associated therewith and for the purpose of the funding of the Reserve
Account.
2.4. PAYMENT OF PRINCIPAL AND INTEREST
SECTION 2.4.1. PAYMENTS ON THE MORTGAGE NOTE.
All payments made on the Mortgage Note shall be made in the manner,
and subject to the conditions, provided in this Agreement and the Mortgage Note.
The Mortgage Note shall not be prepayable except as expressly provided for in
this SECTION 2.4.1, and in SECTION 2.5, SECTION 2.7, SECTION 2.8, SECTION
2.9 and SECTION 2.10 hereof. On any Due Date occurring on or after the date
that is three (3) months prior to the Anticipated Repayment Date, the Mortgage
Note may be prepaid, at the option of the Borrower, in full or in part, without
penalty or premium. To the extent not previously paid, the entire Debt shall be
due and payable on the Final Maturity Date.
SECTION 2.4.2. INTEREST.
(a) Except as set forth in SECTIONS 2.4.4(b) with respect to
interest accruing at the Default Interest Rate, the Debt shall bear interest for
each Debt Service Period at the applicable Interest Rate then in effect and
shall be payable as provided herein.
(b) Calculations of interest shall be made on the basis of a
360-day year and the actual number of days elapsed during each Debt Service
Period.
SECTION 2.4.3. PAYMENTS WITHOUT DEDUCTION, ETC.
All payments of the Debt to Lender shall be absolute and
unconditional, shall be paid strictly in accordance with the terms of the Loan
Documents without being subject to any claim, set-off, defense or other right
which Borrower may have against Lender or any other Person, whether in
21
connection with this Agreement, the transactions contemplated herein or any
other circumstance or happening whatsoever. Borrower shall pay such payments to
the Lender free and clear of, and without deduction for, any and all present or
future taxes, levies, imposts, deductions, charges, penalties or withholdings,
and any liabilities with respect thereto, by whomever imposed, other than
present or future taxes on the income of Lender or franchise taxes imposed on
Lender as a result of its conducting business in specific jurisdictions.
Borrower shall pay and indemnify and hold Lender harmless from and against, any
present or future claim or liability for United States, state or local taxes or
assessments on the ownership by Lender of the debt obligations of Borrower
evidenced by the Mortgage Note, or on the principal, interest, fees or other
amounts payable under any Loan Documents or otherwise in respect of the Debt
(other than income or franchise taxes imposed on the Lender or its Affiliates by
any jurisdiction). The obligations of the Borrower hereunder shall survive
repayment of the Debt and termination of the Loan Documents.
SECTION 2.4.4. PERIODIC PAYMENTS.
(a) On July 10, 1997, Borrower shall pay to Lender interest on the
Mortgage Note of the Base Rate for the period commencing on the Closing Date and
ending on July 9, 1997.
(b) On August 10, 1997 and on each Due Date thereafter, the Borrower
shall pay interest on the outstanding principal of the Mortgage Note at the Base
Rate for the prior Debt Service Period (the "MONTHLY DEBT SERVICE PAYMENT").
At any time while an Event of Default has occurred and is continuing,
the Borrower shall, in addition to the Monthly Debt Service Payment and other
amounts due hereunder, be liable for the payment of interest at the Default
Interest Rate (rather than the Interest Rate) (which interest is payable both
before and after Lender has obtained a judgment with respect to the Loan);
PROVIDED, HOWEVER, that for the purposes of this sentence, an Event of Default
shall be considered to have occurred and be continuing only until such Event of
Default has been cured, including, without limitation, pursuant to the
provisions of SECTION 7.1.3 hereof, if applicable. Following the occurrence of
a Lockbox Event, the priority of payment of Default Interest shall be as set
forth in the Cash Management Procedures attached as Schedule 5.11 hereto).
Payment or acceptance of the increased rates provided for in this SECTION
2.4.4(b) is not a permitted alternative to timely payment or full performance
by the Borrower and shall not constitute a waiver of any Default or Event of
Default or an amendment to this Agreement or any other Loan Document and shall
not otherwise prejudice or limit any rights or remedies of Lender.
(c) From and after the Anticipated Repayment Date, interest shall
accrue on the outstanding principal balance of the Mortgage Note at the Adjusted
Interest Rate. On each Due Date after the Anticipated Repayment Date, Borrower
shall continue to pay to Lender the Monthly Debt Service Payment computed at the
Base Rate. Payment of all interest accruing in respect of the Mortgage Note
after the Anticipated Repayment Date in the amount equal to the difference
between the amount that accrues at the Adjusted Interest Rate and the amount
that is paid at the Base Rate ("ACCRUED INTEREST") shall (a) be deferred, and
(b) to the extent permitted by applicable law, accrue interest at the Adjusted
Interest Rate. If not sooner paid, all Accrued Interest together with interest
thereon (to the extent permitted by applicable law) shall be due and payable in
full on the Final Maturity Date. From and after the Anticipated Repayment Date,
Borrower shall pay to Lender on each Due Date (without duplication), until the
entire Debt is repaid in full, Excess Cash Flow for the Debt Service Period
relating to such Due Date; each monthly payment of Excess Cash Flow made by
Borrower under the Mortgage Note after the Anticipated Repayment Date shall be
applied first to the reduction of the outstanding
22
principal balance of the Mortgage Note and after the principal balance of the
Mortgage Note has been paid in full to the reduction of the outstanding amount
of Accrued Interest (together with any interest thereon).
(d) In addition to Default Interest, in the event Borrower fails to
make any Monthly Debt Service Payment, Yield Maintenance Payment or other
payment hereunder when due, Borrower shall be liable for the payment of a late
charge equal to five percent (5%) of the amount of the payment (the "LATE
PAYMENT FEE"); provided, however, prior to a Securitization, Borrower shall not
be liable to pay a Late Payment Fee the first time Borrower fails to make a
Monthly Debt Service Payment when due. Following the occurrence of a Lockbox
Event, the priority of payment of a Late Payment Fee shall be as set forth in
the Cash Management Procedures. Payment or acceptance of a Late Payment Fee
under this SECTION 2.4.4(d) is not a permitted alternative to timely payment or
full performance by Borrower and shall not constitute a waiver of any Default or
Event of Default or an amendment to this Agreement or any other Loan Document
and shall not otherwise prejudice or limit any rights or remedies of Lender.
Borrower acknowledges that its obligation to pay a Late Payment Fee may be
separated from the other obligations of Borrower hereunder, and may be held or
transferred separately from the other obligations of Borrower hereunder.
2.4.5. INSUFFICIENT PAYMENTS
In the event that Borrower fails to pay all amounts due and payable on
the Mortgage Note on any Due Date, unless otherwise determined by Lender, all
cash paid by the Borrower on such date and all proceeds realized on the sale of
Collateral pursuant to any of the Loan Documents shall be applied in the
following order of priority to the extent of the cash so paid or proceeds
realized:
FIRST: to pay (a) all amounts that are due and unpaid under SECTION
12.7.1 hereof and under SECTION 7.5 hereof, if applicable (b) all costs,
if any, incurred by Lender in acting on behalf of Borrower as provided in
the Loan Documents and (c), if applicable, all costs and expenses incurred
by the Lender in enforcing this Loan Agreement and any of the other Loan
Documents, including all costs and expenses of the foreclosure and/or sale
of the Collateral or any part thereof or any interest therein, and all
costs and expenses of entering upon, taking possession of, removing,
holding, constructing improvements on, and operating and managing the
Collateral or any part thereof, and all costs and expenses of repairs,
renewals, replacements, additions, betterments, and improvements to the
Collateral, in each case in accordance with the Loan Documents, and all
reasonable attorneys' and accountants' fees and disbursements, including
any appraisals that may reasonably be required by Lender, incurred in
connection with any of the foregoing, together with any compensation
payable under SECTION 4.3 of any Mortgage;
SECOND: to pay interest at the Base Rate then due and payable on the
Mortgage Note;
THIRD: to pay all amounts of principal due and payable on the
Mortgage Note (whether at maturity, on a date fixed for any payment or
prepayment thereof, upon acceleration, or otherwise), until the principal
balance has been reduced to zero;
FOURTH: to pay any Yield Maintenance Payments then due and payable;
FIFTH: to pay any Default Interest and Late Payment Fees then due and
payable; and
SIXTH: to pay Accrued Interest, if any (plus interest thereon at the
Adjusted Rate).
23
All proceeds realized upon the sale of Collateral pursuant to any of the Loan
Documents shall be applied in accordance with the foregoing as of the Due Date
next occurring following any such sale.
2.5. DEFEASANCE
(a) At any time during the period commencing on (i) the first
Business Day after the date that is the earlier of (A) two years after the
"startup day," within the meaning of Section 860G(a)(9) of the Code, of a "real
estate mortgage investment conduit," within the meaning of Section 860d of the
Code (a "REMIC"), that holds the Mortgage Note and (B) three years after the
Closing Date, and ending on (ii) the date that is three (3) months prior to the
Anticipated Repayment Date (such period being sometimes referred to herein as
the "DEFEASANCE PERIOD"), and provided no Event of Default has occurred and is
continuing (other than on Event of Default that will be cured by the release of
a Mortgaged Property or Mortgaged Properties from the Lien of the Security
Documents pursuant to the provisions of Section 7.1.3 hereof), Borrower may
voluntarily defease all or any portion of the Loan by providing Lender with the
Defeasance Deposit (hereinafter, a "DEFEASANCE EVENT"). Each Defeasance Event
by the Borrower shall be subject to the satisfaction of the following conditions
precedent:
(i) Borrower shall provide not less than twenty (20) days prior
written notice to Lender specifying a regularly scheduled payment date (the
"DEFEASANCE DATE") on which the Defeasance Event is to occur. Such notice
shall indicate the principal amount of the Mortgage Note to be defeased;
(ii) Borrower shall pay to Lender all accrued and unpaid interest on
the principal balance of the Mortgage Note to but not including the
Defeasance Date. If for any reason the Defeasance Date is not a regularly
scheduled payment date, the Borrower shall also pay interest that would
have accrued on the Mortgage Note through the next regularly scheduled
payment date;
(iii) Borrower shall pay to Lender all other sums, not including
scheduled interest or principal payments, due under the Mortgage Note, this
Agreement, the Mortgage, and the other Loan Documents;
(iv) Borrower shall pay to Lender the required Defeasance Deposit for
the Defeasance Event;
(v) In the event only a portion of the Loan is the subject of the
Defeasance Event, Borrower shall prepare all necessary documents to amend
and restate the Note and issue two substitute notes, one note having a
principal balance equal to the defeased portion of the original Note (the
"DEFEASED NOTE") and the other note having a principal balance equal to
the undefeased portion of the Note (the "UNDEFEASED NOTE"). The Defeased
Note and Undefeased Note shall have identical terms as the Note except for
the principal balance. A Defeased Note cannot be the subject of any
further Defeasance Event;
(vi) Borrower shall execute and deliver a security agreement, in form
and substance satisfactory to Lender, creating a first priority lien on the
Defeasance Deposit and the U.S. Obligations purchased with the Defeasance
Deposit in accordance with this provision of this SECTION 2.5 (THE
"DEFEASANCE SECURITY AGREEMENT");
24
(vii) Borrower shall deliver an opinion of counsel for Borrower in
form satisfactory to Lender in its sole discretion stating, among other
things, that Borrower has legally and validly transferred and assigned the
U.S. Obligations and all obligations, rights and duties under and to the
Mortgage Note or Defeased Note (as applicable) to the Successor Borrower,
that Lender has a perfected first priority security interest in the
Defeasance Deposit and the U.S. Obligations delivered by Borrower, that
such Defeasance will not adversely affect the status of the entity holding
the interest in the Mortgage Note as a REMIC (assuming for such purpose
that such entity otherwise qualifies as a REMIC) and that such Defeasance
will not result in a deemed exchange of the Certificates pursuant to
SECTION 1001 of the Code;
(viii) Borrower shall deliver a Rating Comfort Letter from the
Rating Agencies in connection with the Defeasance Event. If required by
the applicable Rating Agencies, the Borrower shall also deliver or cause to
be delivered a Substantive Non-Consolidation Opinion with respect to the
Successor Borrower in form and substance satisfactory to Lender and the
applicable Rating Agencies;
(ix) Borrower shall deliver an Officer's Certificate certifying that
the requirements set forth in this SECTION 2.5(a) have been satisfied;
(x) Borrower shall deliver to Lender a certificate of Borrower's
independent certified public accountant certifying that the U.S.
Obligations purchased with the Defeasance Deposit will generate monthly
amounts equal to or greater than the required Scheduled Defeasance
Payments;
(xi) Borrower shall deliver such other certificates, documents or
instruments as Lender may reasonably request; and
(xii) Borrower shall pay all costs and expenses of Lender incurred
in connection with the Defeasance Event, including any costs and expenses
associated with a release of the Lien of the Mortgage as provided in
SECTION 2.8 hereof or SECTION 2.9 hereof, as applicable, as well as
reasonable attorneys' fees and expenses.
(b) In connection with each Defeasance Event, Borrower hereby
appoints Lender as its agent and attorney-in-fact for the purpose of using the
Defeasance Deposit to purchase U.S. Obligations which provide payments on or
prior to, but as close as possible to, all successive Due Dates after the
Defeasance Date upon which interest payments are required under the Mortgage
Note, in the case of a Defeasance Event for the entire outstanding principal
balance of the Loan, or the Defeased Note, in the case of a Defeasance Event for
only a portion of the outstanding principal balance of the Loan, as applicable,
and in amounts equal to the scheduled payments due on such Due Dates under the
Mortgage Note or the Defeased Note, as applicable, and assuming such Mortgage
Note or Defeased Note is paid in full on the Anticipated Repayment Date (the
"SCHEDULED DEFEASANCE PAYMENTS"). Borrower, pursuant to the Defeasance
Security Agreement or other appropriate document, shall authorize and direct
that the payments received from the U.S. Obligations may be made directly to the
Cash Collateral Account (unless otherwise directed by Lender) and applied to
satisfy the obligations of Borrower under the Mortgage Note or the Defeased
Note, as applicable.
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2.6. RELEASE OF PROPERTY
Except as set forth in SECTION 2.7, SECTION 2.8, SECTION 2.9 or
SECTION 2.10, no repayment, prepayment or defeasance of all or any portion of
the Mortgage Note shall cause, give rise to a right to require, or otherwise
result in, the release of the Lien of the Mortgage on any of the Mortgaged
Properties.
2.7. PARTIAL RELEASE IN CONNECTION WITH A CASUALTY OR TAKING BEFORE
DEFEASANCE PERIOD
In the event that, prior to (a) the first day of the Defeasance
Period, a Mortgaged Property has suffered a total or substantial Taking or
Casualty (in each case, as to which Restoration is not required or permitted
under the Mortgage) or (b) a Securitization, a Default of the type described in
SECTION 7.1.3 occurs that can be cured by a Release of a Mortgaged Property
from the lien of the Security Documents, Borrower shall cause the Release of
such Mortgaged Property from the Lien of the Security Documents upon the
satisfaction of the following conditions:
(a) Borrower shall provide not less than 30 days' notice to Lender
specifying a Due Date on which the amount set forth in clause (c) below is to be
provided to Lender, which notice shall be accompanied by a certificate of the
Borrower and the General Partner, signed by a duly authorized officer of the
General Partner, to the effect that no Default or Event of Default has occurred
and is continuing (or, in the case of a Default or Event of Default that shall
be cured or avoided by the Release of the affected Mortgaged Property,
describing the nature of such Default or Event of Default, and certifying that
such Default or Event of Default shall be cured by such Release) and that such
Release will comply with all applicable requirements of this SECTION 2.7;
(b) Borrower shall pay to Lender all interest that is accrued and
unpaid on the principal balance of the Mortgage Note and all other sums due
under the Loan Documents, through and including such Due Date, including,
without limitation, all reasonable costs and expenses of Lender incurred in
connection with the Release, including any costs and expenses associated with a
release of the Lien of the Security Documents and reasonable attorneys' fees and
expenses;
(c) Borrower shall pay to Lender, to be applied to prepayment of the
outstanding principal balance of the Loan, an amount equal to (1) in the case of
a prepayment pursuant to clause (b) of the first paragraph of this SECTION 2.6,
the Release Price and the Yield Maintenance Payment for such Mortgaged Property
or (2) in the case of a Release pursuant to clause (a) of the first paragraph of
this SECTION 2.6, an amount equal to the greater of (a) and (b), in which (a)
is the Allocated Loan Amount for such Mortgaged Property and (b) is the lesser
of (x) the Release Price for such Mortgaged Property and (y) the sum of the Net
Sales Proceeds received by Borrower from the sale of the Mortgaged Property or
the part thereof that remains following the Taking or Casualty, plus the
remaining Award or Insurance Proceeds not previously applied to repayment of the
Loan or Restoration;
(d) Borrower shall deliver to Lender, for execution, forms of release
of such Mortgaged Property from the Lien of the Security Documents appropriate
for the jurisdiction in which such Mortgaged Property is located;
(e) if the Release is being requested in order to avoid an Event of
Default pursuant to SECTION 7.1.3 hereof, Borrower shall deliver to Lender
evidence reasonably satisfactory to Lender, that after giving effect to such
Release, the Debt Service Coverage Ratio for the Remaining Mortgaged Properties
shall be equal to the greater of (i) 2.052:1, and (ii) the Debt Service Coverage
Ratio for the
26
Remaining Mortgaged Properties and the Mortgaged Properties to be released for
the twelve (12) full calendar months immediately preceding the release of the
Mortgaged Properties to be released;
(f) Borrower shall provide to Lender an opinion of counsel in form
and substance, and from a firm, acceptable to Lender in the exercise of its sole
discretion, that such Release would not adversely affect the status of the
entity holding the interest in the Mortgage Note as a REMIC (assuming for such
purpose that such entity otherwise qualifies as a REMIC) and that such Release
will not result in a deemed exchange of the Certificates pursuant to Section
1001 of the Code.
2.8. RELEASE OF ALL THE PROPERTIES DURING DEFEASANCE PERIOD
(a) At any time during the Defeasance Period, if Borrower has elected
to defease the entire outstanding principal balance of the Mortgage Note and the
requirements of SECTION 2.5 have been satisfied, all of the Mortgaged
Properties shall be released from the Lien of the Mortgage and the U.S.
Obligations, pledged pursuant to the Defeasance Security Agreement, shall be the
sole source of collateral securing the Note.
(b) In connection with the release of the Lien, Borrower shall submit
to Lender, not less than thirty (30) days prior to the Release Date, a release
of Lien (and related Loan Documents) for each Mortgaged Property for execution
by Lender. Such release shall be in a form appropriate in each jurisdiction in
which a Mortgaged Property is located and satisfactory to Lender in its sole
discretion. In addition, Borrower shall provide all other documentation Lender
reasonably requires to be delivered by Borrower in connection with such release,
together with an Officer's Certificate certifying that such documentation (i) is
in compliance with all Laws, and (ii) will effect such Releases in accordance
with the terms of this Agreement.
2.9. RELEASE OF INDIVIDUAL MORTGAGED PROPERTIES DURING THE DEFEASANCE
PERIOD
At any time during the Defeasance Period, in connection with any
Defeasance of less than the entire principal balance of the Mortgage Note,
Borrower may obtain (i) the Release of one or more Mortgaged Properties from the
Lien of the Mortgage thereon (and related Loan Documents) and (ii) the release
of Borrower's obligations under the Loan Documents with respect to such
Mortgaged Properties (other than those expressly stated to survive), upon
satisfaction of each of the following conditions:
(a) the principal balance of the Defeased Note issued in connection
with such Defeasance shall equal or exceed the aggregate Release Prices for the
Mortgaged Properties then being Released;
(b) the requirements of SECTION 2.5 have been satisfied;
(c) Borrower shall submit to Lender, not less than thirty (30) days
prior to the date of such Release, a release of Lien (and related Loan
Documents) for each such Mortgaged Property for execution by Lender. Such
release shall be in a form appropriate in the jurisdiction in which such
Mortgaged Property is located and satisfactory to Lender in its sole discretion.
In addition, Borrower shall provide all other documentation Lender reasonably
requires to be delivered by Borrower in connection with such release, together
with an Officer's Certificate certifying that such documentation (i) is in
compliance with all Laws, (ii) will effect such release in accordance with the
terms of this
27
Agreement, and (iii) will not impair or otherwise adversely affect the Liens,
security interests and other rights of Lender under the Loan Documents not being
released (or as to the parties to the Loan Documents and Mortgaged Properties
subject to the Loan Documents not being released); and
(d) After giving effect to such release, the Debt Service Coverage
Ratio for the Remaining Mortgaged Properties shall be equal to the greater of
(i) 2.052:1, and (ii) the Debt Service Coverage Ratio for the Remaining
Mortgaged Properties and the Mortgaged Properties to be released for the twelve
(12) full calendar months immediately preceding the release of the Mortgaged
Properties to be released.
2.10. PARTIAL RELEASE AFTER DEFEASANCE PERIOD
On any Due Date occurring on or after the last day of the Defeasance
Period, upon the sale of any Mortgaged Property to any Person, Borrower may
cause the Release of such Mortgaged Property from the Lien of the Security
Documents upon the satisfaction of the following conditions:
(a) Borrower shall provide not less than 30 days' notice to Lender
specifying a Due Date on which the amount set forth in clause (c) below is to be
provided to Lender, which notice shall be accompanied by a certificate of
Borrower and the General Partner, signed by a duly authorized officer of the
General Partner, to the effect that no Default or Event of Default has occurred
and is continuing (or, in the case of a Default or Event of Default that shall
be cured or avoided by the Release of the affected Mortgaged Property,
describing the nature of such Default or Event of Default, and certifying that
such Default or Event of Default shall be cured by such Release) and that such
Release will comply with all applicable requirements of this SECTION 2.10;
(b) Borrower shall pay to Lender all interest that is accrued and
unpaid on the principal balance of the Mortgage Note and all other sums due
under the Loan Documents, through and including such Due Date;
(c) Borrower shall pay to Lender, to be applied to the outstanding
principal balance of the Loan, an amount equal to the Release Price of such
Mortgaged Property; PROVIDED, HOWEVER, that (A) if a Mortgaged Property is
released pursuant to this SECTION 2.10 as a result of a Casualty or a Taking as
to which Restoration is not required or permitted under the applicable Mortgage,
such payment shall be an amount equal to the greater of (a) and (b), in which
(a) is the Allocated Loan Amount for such Mortgaged Property and (b) is the
lesser of (x) the Release Price for such Mortgaged Property and (y) the sum of
the Net Sales Proceeds received by Borrower from the sale of the Mortgaged
Property or the part thereof that remains following the Taking or Casualty plus
the remaining Award or Insurance Proceeds not previously applied to repayment of
the Loan or Restoration;
(d) Borrower shall deliver to Lender, for execution, forms of release
of such Mortgaged Property from the Lien of the Security Documents appropriate
for the jurisdiction in which such Mortgaged Property is located;
(e) unless the Release is being made in connection with a Casualty or
Taking (as to which Restoration is not required or permitted under the
applicable Mortgage), after giving effect to such Release, the Debt Service
Coverage Ratio for the Remaining Mortgaged Properties shall be at least equal to
the greater of (i) 2.052:1, and (ii) the Debt Service Coverage Ratio for the
Remaining Mortgaged
28
Properties and the Mortgaged Property to be released for the twelve (12) full
calendar months immediately preceding the release of the Mortgaged Property to
be released; and
(f) Borrower shall provide to Lender an opinion of counsel in form
and substance, and from a firm, acceptable to Lender in the exercise of its sole
discretion, that such Release would not adversely affect the status of the
entity holding the interest in the Mortgage Note as a REMIC (assuming for such
purpose that such entity otherwise qualifies as a REMIC) and that such
Defeasance will not result in a deemed exchange of the Certificates pursuant to
Section 1001 of the Code.
Sales of personal property at a Mortgaged Property in the ordinary
course of business may be made pursuant to SECTION 1.23 of the applicable
Mortgage without regard to SECTION 2.7, SECTION 2.8, SECTION 2.9 or SECTION 2.10
hereof.
2.11. YIELD MAINTENANCE
2.11.1.
If all or any part of the principal amount of the Loan is prepaid
after the Closing Date but prior to the last day of the Defeasance Period as a
result of the acceleration of the maturity of the Mortgage Note after an Event
of Default (or if a Mortgaged Property is released for the purpose set forth in
SECTION 7.1.3 after the Closing Date but prior to the Securitization), Borrower
shall be required to pay a prepayment premium (the "YIELD MAINTENANCE PAYMENT")
on the Mortgage Note equal to the greater of (A) 1% of the amount of the
principal prepayment that is to be applied to the Mortgage Note and (B) the
present value as of the end of the applicable Debt Service Period, discounted at
the Reinvestment Yield, of a series of payments each equal to the Payment
Differential on each of the remaining Due Dates prior to and including the
Anticipated Repayment Date, after giving effect to the regularly scheduled
payment of principal that is to be made on the Prepayment Date. No Yield
Maintenance Payment shall be required in connection with prepayments made on or
after the last day of the Defeasance Period.
2.11.2.
Promptly following the acceleration of the Mortgage Note or following
the occurrence of any other event, the occurrence of which obligates Borrower to
make a Yield Maintenance Payment, Lender shall notify Borrower of the amount and
basis of determination of the applicable Yield Maintenance Payment promptly upon
determining the Treasury Rate, as contemplated below. Absent manifest error,
Borrower shall not dispute Lender's calculations hereunder.
For purposes of this SECTION 2.11, the following terms shall have the
meanings ascribed to them below:
"PAYMENT DIFFERENTIAL" means, an amount equal to (x) the Base Rate,
minus the Reinvestment Yield, divided by (y) 12, and multiplied by (z) the
amount of the principal prepayment.
"REINVESTMENT YIELD" is the Treasury Rate converted to a monthly
compounded nominal annual yield.
"TREASURY RATE" is equal to the lesser of (A) the annual yield on the
United States Treasury issue (primary issue) with a maturity date closest
to the Final Maturity Date and (B) the
29
yield on the United States Treasury issue (primary issue) with a maturity
equal to the remaining average life of the Mortgage Note, with each such
yield being based on the bid price for such issue as published in THE WALL
STREET JOURNAL on the date that is 14 days prior to (x) the applicable
Prepayment Date set forth in the notice of prepayment provided by the
Borrower or (y) the date of acceleration by the Lender (or if such bid
price is not published on that date, the next preceding date on which
such bid price is so published).
2.12. SUCCESSOR BORROWER
In connection with any release of a Lien under SECTION 2.8 or SECTION
2.9, Lender shall establish or designate a successor entity (the "SUCCESSOR
BORROWER") which shall be a single purpose bankruptcy remote entity approved by
Lender, and Borrower shall transfer and assign all obligations, rights and
duties under and to the Mortgage Note (in the event of a Release pursuant to
SECTION 2.8) or the Defeased Note (in the event of a Release pursuant to
SECTION 2.9), as applicable, together with the pledged U.S. Obligations to such
Successor Borrower. Such Successor Borrower shall assume the obligations under
the Mortgage Note or the Defeased Note, as applicable, and the Security
Agreement and Borrower shall be relieved of its obligations under such
documents. The Borrower shall pay $1,000 to any such Successor Borrower as
consideration for assuming the obligations under the Mortgage Note or the
Defeased Note, as applicable, and the Security Agreement. Notwithstanding
anything in this Agreement to the contrary, no other assumption fee shall be
payable upon a transfer of the Mortgage Note in accordance with this SECTION
2.12, but Borrower shall pay all costs and expenses incurred by Lender,
including Lender's attorneys' fees and expenses, incurred in connection
therewith.
3. REPRESENTATIONS AND WARRANTIES
To induce Lender to enter into this Agreement and the other Loan
Documents and to make the Loan to Borrower, Borrower makes the following
representations and warranties. For purposes of this Article 3, references to
the knowledge of Borrower or to information known by Borrower, shall be deemed
to include the knowledge of, or information known by, Arden OP, Xxxxx XXXX and
the General Partner.
3.1. ORGANIZATION AND POWER OF BORROWER AND GENERAL PARTNER
Borrower (i) is duly organized and validly existing as a limited
partnership in good standing under the laws of the State of California, (ii) has
full power and authority to enter into, execute, deliver and perform this
Agreement, the Mortgage Note, and the other Loan Documents and Transaction
Documents and to consummate the transactions contemplated hereby and thereby,
(iii) has full power and authority to mortgage or assign all of its right, title
and interest in and to the Mortgaged Properties and the other Collateral, (iv)
has full power and authority to transact the business in which it is now
engaged, or proposes to engage, (v) has power and authority and is duly
qualified to transact such business as a foreign limited partnership under the
laws of all jurisdictions in which the Mortgaged Properties are located, and in
all jurisdictions where the nature of Borrower's business or the character of
properties owned, leased, operated or otherwise held by Borrower makes such
qualification necessary and (vi) is a special purpose entity established for the
sole purpose of owning and operating the Mortgaged Properties or causing the
Mortgaged Properties to be operated and entering into the transactions
contemplated by the Transaction Documents and performing activities incidental
and related to the operation of the Mortgaged Properties. All of the
partnership interests in Borrower have been duly and validly authorized
30
and issued and are owned as follows: Arden OP owns a 99% limited partner
interest and the General Partner owns a 1% general partner interest in
Borrower, in each case, free and clear of any liens, encumbrances, equities or
claims. The General Partner (i) is duly organized and validly existing as a
corporation in good standing under the laws of the State of California, (ii) has
full power and authority to execute, deliver, and perform this Agreement and the
other Loan Documents and Transaction Documents to which it is a party, whether
for itself or on behalf of Borrower, (iii) is duly qualified to transact
business as a foreign corporation in good standing under the laws of each
jurisdiction which requires such qualification, except when the failure to be so
qualified, considering all such failures in the aggregate, would not be
reasonably likely to have a material adverse effect on the financial condition,
business or results of operations of the General Partner or Borrower or on the
ownership, use or value of any of the Mortgaged Properties and (iv) is not
engaged in any business other than acting as the general partner of Borrower and
performing activities incidental and related to acting as general partner of
Borrower. Borrower has its principal place of business, principal office and
office where it keeps its records and other documents and instruments relating
to the Mortgaged Properties (except for certain records, documents and
instruments kept at the Mortgaged Properties) at its address set forth in
SECTION 12.3.
3.2. DUE AUTHORIZATION AND EXECUTION
The execution, delivery and performance by Borrower and the General
Partner of this Agreement and each of the other Loan Documents and Transaction
Documents have been duly authorized by all requisite actions by and on behalf of
Borrower and the General Partner and are within the partnership or corporate
power of Borrower and the General Partner, as the case may be, and this
Agreement and all other Loan Documents and Transaction Documents executed and
delivered by Borrower or the General Partner have been duly executed by Borrower
and the General Partner and constitute the valid and binding obligations of
Borrower and the General Partner, enforceable against Borrower and the General
Partner in accordance with their respective terms, subject to the effects of
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, and similar laws relating to or affecting creditors' rights
generally and general principles of equity (whether considered in a proceeding
in equity or at law).
3.3. NO CONSENTS REQUIRED; NO CONTRAVENTION
Except for consents and approvals that have already been obtained and
are in full force and effect, no consent, license, approval or authorization of,
or registration or declaration with, any Governmental Authority, commission,
bureau, agency or other Person is required in connection with the execution,
delivery and performance of this Agreement, the Mortgage Note, or any of the
other Loan Documents or Transaction Documents or the consummation of the
transactions contemplated hereby and thereby. Neither the execution and
delivery by Borrower or the General Partner of this Agreement nor of the other
Loan Documents or other Transaction Documents, the consummation of the
transactions contemplated hereby or thereby, nor the fulfillment by Borrower or
the General Partner of, or compliance by Borrower or the General Partner with,
the terms and conditions of this Agreement or the Loan Documents or other
Transaction Documents:
(a) will result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any Laws or any judgment, decree
or order binding on Borrower or the General Partner or their respective
properties or assets;
31
(b) will conflict with or result in any breach or violation of any of
the terms, conditions or provisions of the organizational documents of Borrower
or the General Partner; or
(c) will result in a breach or violation of or constitute a default
under any existing material agreement or instrument to which Borrower or the
General Partner or their respective assets are a party or by which Borrower or
the General Partner are bound.
3.4. TITLE TO PROPERTIES
Borrower has good and marketable title to the Mortgaged Properties,
including good and marketable fee simple or leasehold title, as applicable, in
and to the Land, and good and marketable title in and to the Improvements
located thereon, in each case free and clear of all Liens except for Permitted
Liens, and Borrower has good title in all other assets that serve as Collateral
for the Loan (which, in the case of assets leased by Borrower, shall mean a good
and valid leasehold interest in such assets), free and clear of all Liens except
Permitted Liens. The Permitted Liens do not and will not materially and
adversely affect (i) the ability of Borrower to pay in full the principal and
interest when due on the Mortgage Note or (ii) the use of the Mortgaged
Properties for the use currently being made thereof or the operation of the
Mortgaged Properties as they currently are being operated. Borrower has no
interest in real property other than the Mortgaged Properties, including the
Land and Improvements related thereto. Each Mortgaged Property constitutes one
or more separate tax lots that do not share tax liability with other real
property except property that is (a) owned in full by Borrower or a Ground
Lessor and (b) encumbered by a Lien in favor of the Lender securing the Loan.
3.5. MANAGEMENT AGREEMENT
The execution, delivery and performance by Borrower of the Management
Agreement has been duly authorized by all requisite actions by and on behalf of
Borrower and are within the partnership or corporate power of Borrower and the
Management Agreement has been duly executed by Borrower and the Manager and
constitute the valid and binding obligations of Borrower and the Manager,
enforceable against Borrower and the Manager in accordance with their terms,
subject to the effects of applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, and similar laws relating to or
affecting creditors' rights generally and general principles of equity (whether
considered in a proceeding in equity or at law).
3.6. LEASES
(a) Borrower is the sole owner of the entire lessor's interest in the
Leases; (b) the Leases are valid and enforceable subject to the effects of
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, and similar laws relating to or affecting creditors' rights
generally and general principles of equity (whether considered in a proceeding
in equity or at law); (c) the material economic terms of all alterations,
modifications and amendments to the Leases are reflected in the certified
occupancy statement delivered to and approved by Lender; (d) none of the rents
reserved in the Leases have been assigned or otherwise pledged or hypothecated
(other than to Lender); (e) except as may otherwise be permitted herein, none of
the Rents have been collected for more than one month in advance; (f) the
premises demised under the Leases have been completed and the tenants under the
Leases have been accepted the same and have taken possession of the same on a
rent-paying basis except as otherwise shown on Schedule 3.6 attached hereto;
(g) there currently exist no offsets or
32
defenses to the payment of any portion of the Rents, except as otherwise shown
on SCHEDULE 3.6 attached hereto; (h) no Lease contains an option to purchase,
right of first refusal to purchase, or any other similar provision; and (i) no
person or entity has any possessory interest in, or right to occupy, the
Property except under and pursuant to a Lease.
3.7. UTILITIES
(i) All utility services and facilities (including water, sanitary
sewer, storm sewer, gas and electrical services and facilities) necessary for
the present and proposed use of the Mortgaged Properties are available to the
Mortgaged Properties and, except as shown on the surveys or title reports for
the Mortgaged Properties, enter the Mortgaged Properties either through
adjoining public streets or through private lands pursuant to valid,
unsubordinated, perpetual, enforceable and recorded public or private easements;
(ii) all utility connections for the Mortgaged Properties have been completed,
installed and paid for; (iii) except as shown on the surveys or title reports
for the Mortgaged Properties and except for encroachments that would not
reasonably be expected to materially and adversely affect the operation of the
applicable Mortgaged Property, no Improvements on the Land are located upon any
public utility lines or upon any private utility lines serving property other
than the Mortgaged Properties, or encroach upon any property adjoining the
Mortgaged Properties or encroach upon any utility easements or rights-of-way;
and (iv) neither Borrower nor the General Partner has received any notice from
any utility that any utility services utilized by the Mortgaged Properties will
be revoked or otherwise terminated.
3.8. NO VIOLATIONS
No notices of any material violation of law or municipal ordinances or
of federal, state, county or municipal or other governmental agency regulations,
orders or requirements relating to the Collateral have been entered against or
received by Borrower, Arden OP or Xxxxx XXXX and none of Borrower, Arden OP or
Xxxxx XXXX has reason to believe that any such notice may or will be entered or
received.
3.9. OTHER AGREEMENTS
Neither Borrower, nor the General Partner is a party to any agreement,
instrument, indenture, or other contract or subject to any charter or other
restriction that could materially adversely affect, or threaten to materially
adversely affect, its business, operations, prospects, properties, assets or
condition (financial or otherwise). No material default by Arden OP, Xxxxx
XXXX, Borrower or the General Partner has occurred or is continuing (nor has
there occurred any continuing event which, with giving of notice or the passage
of time or both, would constitute such a default) under any material contracts,
material agreements or material orders to which Borrower, or the General
Partner, as the case may be, is a party or by which it is bound and, to the
knowledge of Borrower, no material default by a third party has occurred or is
continuing (nor has there occurred any continuing event which, with the giving
of notice or the passage of time, or both, would constitute such a default)
under any such contracts, agreements or orders. No holder of any indebtedness
of Borrower or the General Partner has given notice of any default thereunder,
and no liquidation or dissolution of Borrower, or the General Partner, and no
receivership, insolvency, bankruptcy, reorganization or other similar
proceedings relative to Borrower, or the General Partner or any of their
properties, is pending or, to the knowledge of Borrower or the General Partner,
threatened against them or their properties.
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3.10. PAYMENT OF TAXES
(i) Borrower and the General Partner have filed or have caused to be
filed all federal, state, local, and foreign income, excise, property and other
tax returns with respect to their operations, that are required to be filed,
(ii) all such returns are true and correct in all material respects, and (iii)
Borrower and the General Partner have paid or caused to be paid in full all
taxes as shown on such returns or on any assessment received by them, to the
extent that such taxes have become due. Except as so disclosed, the amounts
reserved as a liability for income and other taxes that may become payable are
sufficient for the payment of all such unpaid taxes of Borrower or the General
Partner, whether or not disputed, for which Borrower or the General Partner may
be liable in its own right or as a transferee of the assets of, or as successor
to, any other person or entity.
3.11. LITIGATION
There is no legal or governmental action, suit or proceeding
(including any condemnation proceeding) pending to which Borrower or the General
Partner is a party or of which any property of Borrower or the General Partner
is subject which, if determined adversely to Borrower or the General Partner, as
the case may be, would individually or in the aggregate have a material adverse
effect on the Mortgaged Properties, or on the financial position, business or
results of operations of Borrower or the General Partner or that might affect in
any material respect the transactions contemplated by this Agreement and, to the
knowledge of Borrower and the General Partner, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others.
3.12. REGULATION U
Neither Borrower nor the General Partner is engaged principally, or as
one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any "margin stock" within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System, as now and
from time to time hereafter in effect, and no proceeds of the Loan will be used
for any purpose (and neither Borrower nor the General Partner acting on its
behalf has taken or will take any action) which might cause this Agreement or
any Loan Document to violate said Regulation U or any other regulation of the
Board of Governors of the Federal Reserve System (in each case as in effect on
the date hereof or as the same may hereinafter be in effect).
3.13. INVESTMENT COMPANY ACT
Neither Borrower nor the General Partner is an "investment company"
or a company "controlled" by an "investment company," as such terms are defined
in the Investment Company Act of 1940, as amended and none is an open-ended
investment company, unit trust or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company Act.
3.14. TRANSACTIONS WITH AFFILIATES
Excluding all transactions contemplated by the Loan Documents, no
officer of Borrower, and no other Affiliate of Borrower or of any such officer,
is currently a party to any transaction with Borrower, including any contract,
agreement or other arrangement providing for the employment of, furnishing of
advisory or other services by, purchase or lease of real or personal property
from, or
34
otherwise requiring payments to, any such officer or Affiliate, except on terms
that are fair and reasonable and no less favorable to Borrower than would be
expected in arms-length transactions with third parties where neither party is
under duress or under any extraordinary compulsion to enter into such contract,
agreement or arrangement.
3.15. BUSINESS PURPOSE; NON-SUBORDINATION
The Loan is solely for the business purpose of Borrower, and is not
for personal, family, household or agricultural purposes. The obligations of
Borrower under this Agreement, the Mortgage Note, and each of the other Loan
Documents, and the indebtedness evidenced by the Mortgage Note, are not
subordinated in right of payment or otherwise to any other obligation of
Borrower or to any rights of others.
2.16. PERMITS AND LICENSES
Borrower and the General Partner have all material permits, licenses
and authorizations necessary to conduct their respective businesses in the same
manner as the business conducted by Arden OP and Xxxxx XXXX immediately prior to
the transfer of the Mortgaged Properties to Borrower. No proceedings are
pending or, to the best of Borrower's and the General Partner's knowledge,
threatened seeking the revocation or suspension of any permits, licenses or
approvals issued with respect to the Mortgaged Properties the revocation of
which might reasonably be expected to result in any material adverse change in
the business, operations, prospects, properties, assets or condition (financial
or otherwise) of Borrower or any of the Mortgaged Properties. No such permits,
licenses or approvals shall be altered or amended in any materially adverse
respect, nor shall Borrower or the General Partner make any attempt to alter or
amend the same, in any materially adverse respect, without the prior written
consent of Lender, which shall not be unreasonably withheld.
3.17. PATENTS AND TRADEMARKS
Borrower owns or possesses the right to use all patents, trademarks,
service marks, trade names, copyrights, licenses, franchises, permits and rights
with respect to the foregoing, necessary to own and operate its properties and
to carry on its business as presently conducted and presently planned to be
conducted without conflict with any rights of others.
3.18. INSURANCE
Borrower has obtained or caused to be obtained all insurance policies
required by SECTION 8.1 hereof and by each of the Mortgages, in each case with
Qualified Insurance Companies and all such policies are in full force and
effect.
3.19. ERISA
Neither Borrower nor the General Partner has any employees, and
neither Borrower nor the General Partner maintains or sponsors any Plan.
Neither Borrower nor the General Partner is obligated to make contributions on
behalf of the employees of any Person to any Plan.
35
3.20. NO NOTICE OF NON-COMPLIANCE
Neither the Borrower nor the General Partner nor Arden OP nor Xxxxx
XXXX has received any notice from any insurance company which has issued a
policy with respect to the Mortgaged Properties or from any State Board of Fire
Underwriters (or any other body exercising similar functions) requiring the
performance of any repairs, alterations or other work, which repairs,
alterations or other work have not been completed at the Mortgaged Properties.
Neither Borrower nor the General Partner nor Arden OP nor Xxxxx XXXX has
received any notice of default or breach which has not been cured under any
covenant, condition, restriction, right-of-way, reciprocal easement agreement or
other easement or agreement affecting the Mortgaged Properties which is to be
performed or complied with by it.
3.21. COMPLIANCE WITH LAWS
Borrower and each Mortgaged Property is in compliance with all Laws,
except for such non-compliance as would not reasonably be expected, singly or in
the aggregate, to materially and adversely affect any Mortgaged Property or the
business, operations, prospects, assets, properties or condition (financial or
otherwise) of Borrower.
3.22. COMPLIANCE WITH ENVIRONMENTAL LAWS
To the best of Borrower's and the General Partner's knowledge, each of
the Mortgaged Properties is in compliance in all material respects with, all
applicable Environmental Laws, except for such matters as may be described in
the reports listed on SCHEDULE 3.22. There are not pending (and, to the best
of Borrower's knowledge, there are not threatened), any actions, suits, claims,
legal proceedings or any other proceedings claiming or involving the presence
on, at or under the Mortgaged Properties, or any part thereof, of any Hazardous
Materials (other than Hazardous Materials in quantities customary in operations
similar to the operation of the Mortgaged Properties that are contained, stored
and used in compliance in all material respects with applicable Environmental
Laws or claiming violation of Environmental Laws relating to the Mortgaged
Properties or any part thereof, and neither Borrower nor Arden OP nor Xxxxx XXXX
has received, directly or indirectly, formal or informal notice of any
complaint, order directive, citation, notice of responsibility, notice of
potential responsibility, or information request from any Governmental Authority
or any other person or entity relating to the foregoing.
3.23. CONCERNING MORTGAGED PROPERTIES; FINANCIAL STATEMENTS
(a) All certifications, permits, licenses and approvals required for
the legal use, occupancy and operation of each Mortgaged Property as used
immediately prior to the transfer of such Mortgaged Property to Borrower
including any applicable certificate of completion and occupancy permit, have
been obtained and are in full force and effect; (b) Engineering Surveys have
been performed by a surveyor or registered professional engineer duly licensed
in the jurisdictions in which the Mortgaged Properties are situated for each of
the Mortgaged Properties and, except as set forth in the Engineering Surveys,
the Mortgaged Properties and other Improvements are in sound condition and
repair and neither Borrower nor the General Partner has knowledge that any such
Engineering Survey contains any material inaccuracy or omission; (c) there are
no proceedings pending or, to the best of Borrower's or the General Partner's
knowledge, threatened for the total or partial condemnation of or
36
affecting, any Mortgaged Property; (d) the Mortgaged Properties are not subject
to any leases, licenses or other use or occupancy agreements other than the
Leases, the Ground Lease and leases of Building Equipment described on Schedule
3.23; (e) other than the tenants pursuant to the Leases, no Person has any
possessory interest in any Mortgaged Property or right to occupy any portion
thereof except under and pursuant to the provisions of the Leases; (f) Borrower
does not have on the date hereof any contingent liabilities, liabilities for
taxes, unusual forward or long-term commitments or unrealized or anticipated
losses from any unfavorable commitments which in each case are known to Borrower
and which, in Borrower's opinion, are reasonably likely to result in a material
adverse effect on the Mortgaged Properties or the operation thereof, except as
referred to or reflected or provided for in the financial statements heretofore
furnished to Lender or as otherwise disclosed to Lender herein; (g) since the
last date of such financial statements, (i) Borrower has not entered into any
material transaction or incurred any material liability or obligation,
contingent or otherwise, other than in the ordinary course of business, except
as disclosed to Lender and (ii) there has not been any material adverse change
in the condition (financial or otherwise), business, net worth or results of
operations of Borrower or the condition (financial or otherwise) of the
Mortgaged Properties; and (h) no Mortgaged Property is located in a flood hazard
area as defined by the Federal Insurance Administration.
3.24. ACCESS
Each Mortgaged Property has access and is contiguous to publicly
dedicated streets, roads or highways, or if not so contiguous, access to and
from each Mortgaged Property and publicly dedicated streets, roads or highways
is available through private lands pursuant to valid, perpetual, enforceable and
recorded public or private easements or rights-of-way; and pedestrian and
vehicular access to and from each Mortgaged Property via the easements or
rights-of-way is not limited or restricted in any unreasonable manner (except
that with respect to any Mortgaged Property that is subject to a Ground Lease,
the duration of any such easements may not be perpetual but are at least
coterminous with the terms of the applicable Ground Lease, including all renewal
options whether or not presently exercised).
3.25. NO LIENS
There are no Liens of any type with respect to any of the Mortgaged
Properties, except the Liens created by the Loan Documents and the Permitted
Liens. There has been no construction or other activities at any of the
Mortgaged Properties within such periods of time as would permit the imposition
of any mechanics' or materialmen's Liens on any of the Mortgaged Properties
except as set forth on SCHEDULE 3.25.
3.26. ACCURACY OF INFORMATION
To the best knowledge of Borrower and the General Partner, neither the
Loan Documents nor any document, agreements, instrument, schedule, certificates,
statements, or cash flow schedules (collectively, the "BORROWER DOCUMENTS")
furnished by Borrower, Arden OP, Xxxxx XXXX or the General Partner to Lender
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained therein, in light of
the circumstances under which they were made, not misleading. Since the
furnishing of the Borrower Documents, there has been no change nor any
development or event involving a prospective change known to Borrower or the
37
General Partner which would render any of the Borrower Documents untrue or
misleading in any material respect.
3.27. MORTGAGE AND SECURITY INTERESTS
When executed and delivered, and, if necessary under applicable laws,
recorded, the Mortgage will create valid mortgage, deed of trust, or similar
Liens upon the Mortgaged Properties, the Land underlying them (which, in the
case of Land leased under a Ground Lease, will be a Lien on Borrower's leasehold
interest in the Land, in all other cases, will be a Lien on Borrower's fee
simple interest in the Land), and the Improvements and valid security interests
in the fixtures located thereon, and the Mortgage and accompanying financing
statements (if any) will be recorded and filed in such places as may be required
and, where appropriate, applicable mortgage, transfer, recording and UCC taxes
and fees will be paid, such that the Mortgage will constitute valid first
priority mortgage, deed of trust, or similar Liens on the Land and Mortgaged
Properties and will create valid perfected first priority security interests of
record with respect to the respective Mortgaged Property and related Collateral
(except Collateral as to which a security interest cannot be created and
perfected by a Mortgage or the filing of a financing statement under the
U.C.C.), subject only to the Permitted Liens.
When executed and delivered, and, if necessary under applicable laws,
when appropriate filings of financing statements are made, the Security
Agreement by and between Borrower and Lender will create valid first priority
security interests with respect to the Collateral named therein, which security
interests shall be perfected to the extent that security interests in such
Collateral can be perfected by the filing of a financing statement under the
U.C.C.
3.28. ASSIGNMENT OF LEASES AND RENTS
When executed and delivered by Borrower and the other parties thereto,
the Assignment of Leases and Rents will create a valid assignment of the
Collateral described therein. The Assignment of Leases and Rents, and
accompanying financing statements (if any) will be recorded by the Title Company
and filed in such places as may be required so that all such documents will
create valid assignments of record with respect to the Collateral described
therein, subject only to the Permitted Liens.
3.29. FOREIGN PERSON
Borrower is not a "foreign person" as defined in SECTION 1445 of the
Internal Revenue Code of 1986 and any regulations promulgated thereunder
(including temporary or proposed regulations).
3.30. NO DEFAULTS
No Default or Event of Default exists hereunder or under the other
Loan Documents.
3.31. NO FRAUDULENT CONVEYANCE
Borrower (i) is entering into this Agreement and the other Loan Documents
and the transactions contemplated hereby and thereby in good faith and with no
actual intent to disturb, hinder, delay, or defraud any present or future
creditor of Borrower, the General Partner or any other Person, and
38
(ii) has received reasonably equivalent value in exchange for its obligations
under the Loan Documents. After giving effect to the transactions contemplated
by the Loan Documents, the fair salable value of Borrower's assets exceeds and
will, immediately following the execution and delivery of the Loan Documents,
exceed Borrower's total liabilities, including subordinated, unliquidated,
disputed or contingent liabilities known to Borrower. The fair salable value of
Borrower's assets is and will, immediately following the execution and delivery
of the Loan Documents, be greater than Borrower's probable liabilities,
including the maximum amount of its contingent liabilities known to the Borrower
or its debts as such debts become absolute and matured. Borrower's assets do
not and, immediately following the execution and delivery of the Loan Documents
will not, constitute unreasonably small capital to carry out its business as
conducted or as proposed to be conducted. Borrower does not intend to, and does
not believe it will, incur debts and liabilities (including contingent
liabilities and other commitments) beyond its ability to pay such debts as they
mature (taking into account the timing and amounts to be payable on or in
respect of obligations of Borrower).
4. CLOSING; CONDITIONS PRECEDENT
The Loan shall be made at a closing (the "CLOSING") on a date (the
"CLOSING DATE") that coincides with the closing of the transactions
contemplated by the Contribution Agreement. Without limiting the foregoing, the
obligation of Lender to make the Loan to Borrower and to proceed with the
Closing is subject to the satisfaction on or before the Closing Date of each and
all of the following conditions (and the occurrence of the Closing shall be
conclusive evidence that all such conditions have been satisfied in full or
knowingly waived):
4.1. REPRESENTATIONS, WARRANTIES AND COVENANTS
The representations and warranties of Borrower and the General Partner
made in this Agreement or in any other Loan Document shall have been true and
correct in all material respects when made, and shall be true and correct in all
material respects on the Closing Date, with the same effect as if such
representations and warranties were made on the Closing Date. As of the Closing
Date, Borrower and the General Partner shall each have performed and complied in
all material respects with all covenants and agreements required by this
Agreement or by any other Loan Document to be performed or complied with by
Borrower and the General Partner as of such date.
4.2. BORROWER'S ACTIONS
Borrower shall have taken all actions under the laws of any state
having jurisdiction over Borrower necessary to effectuate the transactions
contemplated by this Agreement and by the other Loan Documents.
4.3. DELIVERY OF DOCUMENTS
The Borrower shall have delivered to the Lender the following
documents, instruments and agreements, each of which shall be in form and
substance reasonably satisfactory to the Lender:
39
4.3.1.
All Loan Documents, fully executed by the Borrower and, as
applicable, the General Partner, including the following;
(i) This Agreement;
(ii) The Mortgage Note;
(iii) The Mortgage;
(iv) The Environmental Indemnity Agreement;
(v) The Collateral Assignment of Management Agreement (and the
Manager's consent to same);
(vi) The Security Agreement;
(vii) The Assignment of Leases and Rents;
(viii) The Cooperation Agreement; and
(ix) The Deposit Security Agreement.
4.3.2.
Mortgagee's forms of title insurance policies (each a "TITLE
INSURANCE POLICY " and, collectively, the "TITLE INSURANCE POLICIES"), or
marked-up commitments evidencing such policies, each in form and content
reasonably acceptable to the Lender, and each in an amount not less than the
Allocated Loan Amount applicable to the particular Mortgaged Property (as
specified in SCHEDULE A attached hereto), with premiums fully paid, insuring
that (i) each Mortgage constitutes a valid first priority mortgage or similar
lien on, and security interest in, the Land and the Improvements and all rights
appurtenant thereto described therein, in each case free and clear of all
defects and encumbrances other than as set forth in EXHIBIT B to the applicable
Mortgage, and containing, to the extent such coverage is available in the state
in which the particular Mortgaged Property is located, (A) full coverage (by
affirmative insurance) against liens of mechanics, materialmen, laborers, and
any other Persons who might claim statutory or other common law liens relating
to services performed prior to Closing; (B) no survey exceptions other than
those set forth in EXHIBIT B to each Mortgage; (C) such other endorsements as
the Lender may deem reasonably necessary to insure that any off-site easements
benefiting any of the Mortgaged Properties are valid and enforceable in
accordance with their terms; (D) a "tie-in" endorsement aggregating the
insurance amount indicated for the applicable Mortgaged Property with the
amounts indicated for other Mortgaged Properties; and (E) such other
endorsements as are required by Lender. Such Title Insurance Policies shall be
issued by First American Title Insurance Company or any other nationally
recognized title insurance company (the "TITLE COMPANY") reasonably
satisfactory to Lender.
40
4.3.3.
Evidence reasonably satisfactory to the Lender that the requirements
set forth in SECTION 8.1 and SECTION 8.3 hereof have been complied with and
that all policies of insurance required by SECTION 8.1 and SECTION 8.3 are in
full force and effect;
4.3.4.
Evidence reasonably satisfactory to Lender that funds necessary to pay
all taxes related to the Mortgages and all other recording and filing fees and
other expenses necessary in connection with the recordation of the Mortgages and
the perfection of the security interests under all of the other Security
Documents have been paid to the Title Company, or to other Persons reasonably
satisfactory to the Lender, for payment to the applicable taxing authorities or
recording officials;
4.3.5.
A certificate of Borrower, dated as of the Closing Date (together with
copies of the documents referred to therein) certifying that: (i) attached
thereto is a true and complete copy of the Partnership Agreement, together with
all amendments thereto, (ii) the Partnership Agreement has not been amended
since the date of the last amendment attached to the certificate, and (iii) the
Partnership Agreement is in full force and effect;
4.3.6.
A certified copy of the GP Certificate, certified as of a date no more
than two weeks before the Closing Date by the California Secretary of State as
being a true and complete copy of such certificate, as on file in such State,
and a certificate of a duly authorized officer of the General Partner, dated as
of the Closing Date (together with copies of the documents referred to therein)
certifying that: (i) attached thereto is a true and complete copy of the GP
Certificate, together with all amendments, if any, thereto, (ii) attached
thereto is a true and complete copy of the General Partners' bylaws, together
with all amendments, if any, thereto, (iii) the GP Certificate and bylaws have
not been amended since the date of the last amendment attached to such officer's
certificate, (iv) the GP Certificate and bylaws are in full force and effect and
(v) attached thereto are currently effective resolutions of the General
Partner's board of directors authorizing the consummation of the transactions
contemplated hereby by the General Partner on its own behalf and as the sole
general partner of Borrower.
4.3.7.
A certified copy of the certificate of limited partnership of
Borrower, certified as of a date no more than two weeks prior to the Closing
Date by the California Secretary of State as being a true and complete copy of
such certificate as on file in such state, and a certificate of a duly
authorized officer of the General Partner, dated as of the Closing Date
(together with copies of the documents referred to therein) certifying that:
(i) attached thereto are true and complete copies of the Borrower's certificate
of limited partnership, together with all amendments thereto, (ii) the
certificate of limited partnership has not been amended since the date of the
last amendment attached to the certificate, and (iii) the certificate of limited
partnership is in full force and effect;
41
4.3.8.
A certified copy of the articles of incorporation of Xxxxx XXXX,
certified as of a date no more than two weeks before the Closing Date by the
Maryland State Department of Assessments and Taxation as being a true and
complete copy of such articles as on file in such State, and a certificate of a
duly authorized officer of Xxxxx XXXX, dated as of the Closing Date (together
with copies of the documents referred to therein) certifying that: (i) attached
thereto is a true and complete copy of such company's articles of incorporation,
together with all amendments thereto, (ii) attached thereto is a true and
complete copy of such company's bylaws, together with all amendments thereto,
(iii) such organizational documents and bylaws have not been amended since the
date of the last amendment attached to the certificate, (iv) such organizational
documents and bylaws are in full force and effect, and (v) attached thereto are
currently effective resolutions of the board of directors of such company
authorizing the consummation of the transactions contemplated hereby by Xxxxx
XXXX on its own behalf and as the sole general partner of Arden OP;
4.3.9.
A certified copy of the certificate of limited partnership of Arden
OP, certified as of a date no more than two weeks prior to the Closing Date by
the Maryland State Department of Assessments and Taxation as being a true and
complete copy of such certificate as on file in such state, and a certificate of
a duly authorized office or Xxxxx XXXX, as sole general partner of Arden OP,
dated as of the Closing Date (together with copies of the documents referred to
therein) certifying that: (i) attached thereto are true and complete copies of
Arden OP's limited partnership agreement and certificate of limited partnership,
together with all amendments thereto, (ii) the limited partnership agreement
has not been amended since the date of the last amendment attached to the
certificate, and (iii) the limited partnership agreement is in full force and
effect.
4.3.10.
Original fictitious name certificates, certificates of existence and,
if available, certificates of good standing for the Borrower and the General
Partner from the Secretary of State's office (or equivalent) in California, each
dated as of a date recent to the Closing Date.
4.3.11.
Certificates of each of Borrower and Manager, each dated as of the
Closing Date (together with copies of the documents referred to therein)
certifying that: (i) attached thereto is a true and complete copy of the
Management Agreement, together with all amendments thereto, (ii) the Management
Agreement has not been amended since the date of the last amendment attached to
the certificate, (iii) the Management Agreement is in full force and effect,
(iv) no notice of default under the Management Agreement has been given or
received by such party, and neither such party nor, to the best knowledge of
such party, the other party is in default with respect to any obligation under
the Management Agreement, and (v) such party does not claim to have any defense,
counterclaim or right of offset with respect to any of its obligations under the
Management Agreement.
4.3.12.
As-built surveys for each Mortgaged Property that conform to the 1992
Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys and that
meet the accuracy
42
standards of an Urban Land Survey, each such survey to be prepared by a surveyor
registered in California, and to contain a certificate from such surveyor to
Lender and the Title Company, dated within 90 days immediately preceding the
Closing Date, in form and content reasonably acceptable to Lender and the Title
Company. Each survey shall show (i) the boundaries of the applicable Land, (ii)
the location and dimension of all Improvements located on the Land, (iii) the
location and identity of all visible or recorded easements and rights-of-way
across or serving the Land, (iv) that the Improvements comply with all setback
requirements and zoning restrictions, except for violations that do not
materially adversely affect the Mortgaged Properties or as to which Lender is
affirmatively insured under the applicable Title Insurance Policy, (v) that the
Improvements do not encroach on adjoining property or on any easement or right
of way, except for encroachments that do not materially adversely affect the
Mortgaged Properties or as to which Lender is affirmatively insured under the
applicable Title Insurance Policy, (vi) that there are no encroachments on the
Land, except for encroachments that do not materially adversely affect the
Mortgaged Properties or as to which Lender is affirmatively insured under the
applicable Title Insurance Policy, (vii) that the Land is not located within any
flood plain area (unless flood insurance reasonably satisfactory to Lender is
provided), and (viii) any other matters that Lender may reasonably require;
4.3.13.
A report of the Title Company or a professional records-search firm
stating that a search of the public records in each state and county in which a
Mortgaged Property is located, disclosed no conditional sales contracts, chattel
mortgages, leases of personalty, financing statements or title retention
agreements, that affect any Mortgaged Property or Land or any other Collateral
assigned or pledged to Lender, except such matters as may be listed in such
report, and such matters must be reasonably acceptable to Lender;
4.3.14.
A copy of the certificate of occupancy for each Mortgaged Property and
the Improvements located on each parcel of Land, or evidence satisfactory to
Lender that no certificate of occupancy is required by applicable Laws, and a
copy of all licenses and permits required for the legal operation of each
Mortgaged Property and all other Improvements located on each parcel of Land, or
evidence satisfactory to Lender that no other licenses or permits are required
by applicable Laws or that the absence of particular licenses or permits will
not have a materially adverse effect on the business, properties, prospects,
assets or condition (financial or otherwise) of the Mortgaged Property;
4.3.15.
The Engineering Surveys for all of the Mortgaged Properties, which
shall show that no material defects or conditions affect any of the Mortgaged
Properties.
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4.3.16.
Seismic studies showing probable maximum loss with respect to each
Mortgaged Property;
4.3.17.
Current reports prepared by an environmental surveying firm reasonably
satisfactory to Lender and in form and scope reasonably satisfactory to Lender;
4.3.18.
An estoppel certificate from the Ground Lessor in form and content
substantially in accordance with the form attached hereto as EXHIBIT C;
4.3.19.
Estoppel certificates, in form and content substantially in accordance
with the form attached hereto as EXHIBIT D, from (i) each tenant of each
Mortgaged Property that accounted for more than 5% of the gross rents from such
Mortgaged Property during the most recently completed four full Accounting
Quarters and (ii) tenants of each Mortgaged Property that accounted, in the
aggregate, for at least 75% of the gross rents from such Mortgaged Property for
the most recently completed four full Accounting Quarters;
4.3.20.
Letters from the holders of the Existing Debt showing the amounts
necessary to pay such indebtedness in full as of the Closing Date, together with
evidence that the Title Company has received into escrow from such holders all
instruments of release, in recordable form, necessary to release any Liens
securing such debt immediately following the Closing;
4.3.21.
The Management Agreement duly executed by Borrower and Manager.
4.4. EVIDENCE OF AUTHORIZATION; RELATED DOCUMENTS
Lender shall also have received:
4.4.1.
A certificate of the corporate secretaries of Xxxxx XXXX, the Manager
and the General Partner certifying as to the incumbency and genuine signature of
each officer of such corporation executing any of the Loan Documents or other
statements, reports, certificates and documents called for by the terms of the
Loan Documents and who will otherwise act under the Loan Documents for and on
behalf of Borrower or any such corporation, including specimen signatures of
each individual that will be signing any of the Loan Documents on behalf of
Borrower or the General Partner, which specimen signatures shall be certified by
an appropriate officer to be a true specimen thereof (and the signature,
authority and incumbency of the certifying officer shall be similarly
certified).
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4.4.2.
One or more written opinions addressed to Lender, dated as of the
Closing Date, from Xxxxxx & Xxxxxxx, special counsel to Borrower and the General
Partner, in form and substance reasonably acceptable to Lender;
4.4.3.
One or more written opinions addressed to Lender, dated as of the
Closing Date, from Ballard, Spahr, Xxxxxxx & Ingersoll, special Maryland counsel
to Arden OP and Xxxxx XXXX, in form and substance acceptable to Lender.
4.5. CLOSING CERTIFICATE
The Lender shall have received a certificate of Borrower and the
General Partner signed by a duly authorized officer of the General Partner,
dated as of even date herewith, stating that:
(i) The representations and warranties of Borrower and the General
Partner contained in each of the Loan Documents to which Borrower or the General
Partner is a party, and in all certificates, documents and instruments delivered
by Borrower or the General Partner pursuant to the Loan Documents are true and
correct in all material respects on and as of the Closing Date; and
(ii) All conditions precedent to be performed by the Borrower or the
General Partner have been satisfied as of the Closing Date.
4.6. MANAGEMENT AGREEMENT
The Management Agreement shall be in full force and effect.
4.7. EXISTING DEBT
All actions necessary to repay the Existing Debt, and to release all
mortgages or other Liens relating thereto, shall have been taken, and Lender
shall have received evidence reasonably satisfactory to the Lender to that
effect.
4.8. PAYMENT OF LENDER COSTS AND ORIGINATION FEE
Borrower shall pay at the Closing, (i) the Origination Fee and (ii)
all Lender Costs, the amounts of which are known to the Lender at such time. In
the event that the amounts paid or withheld by Lender at the Closing are
insufficient to pay all such Lender Costs, Borrower shall promptly, upon demand,
provide additional funds to Lender to pay such Lender Costs.
4.9. INDEPENDENT DIRECTORS
There shall have been duly elected to the Board of Directors of the
General Partner one Independent Director.
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4.10. RESERVE REQUIREMENT
An amount at least equal to the Reserve Requirement shall have been
deposited in the Reserve Account.
5. AFFIRMATIVE COVENANTS
Borrower agrees that, so long as any amount of principal, interest,
Yield Maintenance Payment, or any other charges relating to the Loan shall be
outstanding, or so long as there exist any other charges owing on or under this
Agreement, the Mortgage Note, or any other Loan Document, Borrower shall comply
with all of the following:
5.1. TIMELY PAYMENT OF AMOUNTS DUE
Borrower shall duly pay or cause to be paid, when due, the principal
of, interest on, Yield Maintenance Payments, if any, and other amounts payable
under or in connection with this Agreement, the Mortgage Note and each other
Loan Document in accordance with the terms hereof and thereof, at the times and
places and in the manner provided herein or therein.
5.2. PROCEEDS OF THE LOAN
Borrower shall apply the Loan Amount solely for the purposes set forth
in SECTION 2.3 hereof.
5.3. MANAGEMENT AGREEMENT; GROUND LEASES
5.3.1.
Borrower shall duly and punctually pay all sums required to be paid by
Borrower under the Management Agreement and each Ground Lease and otherwise
perform in all material respects the obligations contemplated to be performed by
it under the Management Agreement and each Ground Lease, subject to the
provisions of the Collateral Assignment of Management Agreement, and will, with
due diligence and in a reasonable and prudent manner, enforce its rights under
the Management Agreement and each Ground Lease to the extent failure to perform
or protect its rights thereunder might materially and adversely affect the
business, operations, prospects, assets, properties or condition (financial or
otherwise) of Borrower. Without limiting the foregoing, Borrower agrees that:
(a) Borrower shall at all times promptly and faithfully keep, perform
and comply with, or cause to be kept, performed and complied with, prior to
the expiration of any applicable grace period, the provisions of the
Management Agreement and of each Ground Lease to be complied with by it.
(b) Borrower shall give Lender prompt notice of any notice of default
given to or received from the Manager under the Management Agreement or the
lessor under any Ground Lease, which notice shall include a copy of such
notice whether or not Lender may be entitled to such notice directly from
the Manager or such lessor. Borrower shall promptly furnish to Lender upon
Lender's reasonable request any and all information concerning the
performance by it of
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the provisions of the Management Agreement and of any Ground Lease and
shall permit Lender or its representative at all reasonable times to
make investigation or examination concerning the performance by it of
the provisions of the Management Agreement and of each Ground Lease.
Within ten (10) days after receipt by Borrower, Borrower shall deliver
to Lender a copy of any notice, communication, plan, specification or
other instrument or document received or given by it in any way relating
to or affecting the Management Agreement or any Ground Lease which may
materially concern or affect the rights of Borrower under the Management
Agreement or the rights or estate of the lessor or the lessee in or
under a Ground Lease or the Land leased thereby.
(c) If any legal action or proceeding shall be instituted to
terminate the Management Agreement or to evict Borrower under, or
terminate, any Ground Lease, or for any other purpose materially affecting
the Management Agreement or any Ground Lease, Borrower will, promptly upon
service thereof on or to it, deliver to Lender a copy of each petition,
summons, complaint, notice of motion, order to show cause and of all other
provisions, pleadings and papers, however designated, served in any such
action or proceeding. Borrower will consult with Lender before instituting
suit against the Manager or any lessor under a Ground Lease.
(d) Notwithstanding any other provision of this Agreement, of the
Management Agreement, or of any Ground Lease, if Borrower shall fail so to
do, Lender may (but shall not be obligated to) take any such action as
Lender reasonably deems required to prevent, mitigate or cure, in whole or
in part, any default by Borrower under the Management Agreement or any
Ground Lease, and upon the receipt by Lender from Borrower, the Manager, or
a lessor under a Ground Lease of any written notice of default by Borrower
under the Management Agreement or any Ground Lease, Lender may rely
thereon, and such notice shall constitute full authority and protection to
Lender for any action taken by the Lender or its agents in good faith
reliance thereon. All expenses, including reasonable attorneys' fees,
incurred by Lender to prevent, mitigate or cure any such default, or to
sustain the Lien of Lender on or security interest in the Management
Agreement or the applicable Mortgaged Property, or the priority thereof,
together with interest thereon at the Default Interest Rate, shall be
deemed secured by the Security Documents and shall be payable within
fifteen (15) days after demand. Nothing in this paragraph (d) shall limit
Borrower's right under the Management Agreement or any Ground Lease to
contest issues concerning requirements of law or other similar matters to
the extent permitted by the Management Agreement or any Ground Lease.
Without limiting the foregoing, Lender shall, upon ten (10) days' prior
written notice to Borrower (except in the case of an emergency) have the
absolute and immediate right (but shall not be obligated) to enter in and
upon the Mortgaged Properties or any part thereof to such extent and as
often as Lender, in its reasonable judgment, deems necessary or desirable
to prevent or cure any such default or condition reasonably believed by
Lender to constitute a material default by Borrower.
(e) Borrower shall give Lender prompt notice of the commencement of,
and consult with Lender in connection with the conduct of, any arbitration
or appraisal proceeding under and pursuant to the provisions of the
Management Agreement or any Ground Lease.
(f) Borrower shall do, or cause to be done, all things necessary to
preserve and keep unimpaired its rights under the Management Agreement and
its rights as lessee under each Ground Lease and will enforce the
obligations of the Manager under the Management Agreement and of each
lessor under a Ground Lease to the end that it may enjoy all of the rights
granted to it thereunder.
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(g) Borrower acknowledges that, pursuant to SECTION 365 of the
Bankruptcy Code, it is possible (although not intended hereby) that a
trustee in bankruptcy of the lessor under a Ground Lease (or the lessor
under a Ground Lease as a debtor-in-possession) could reject a Ground
Lease, in which case Borrower as lessee under such Ground Lease could have
the election described in SECTION 365(h) of the Bankruptcy Code (which
election, as it may be amended or revised from time to time, and together
with any comparable right under any other state or federal law relating to
bankruptcy, reorganization or other relief for debtors, whether now or
hereafter in effect, is called the "ELECTION") to treat such Ground Lease
as terminated by such rejection or, in the alternative, to remain in
possession for the balance of the term of such Ground Lease and any renewal
or extension thereof that is enforceable by the lessee under such Ground
Lease under applicable non-bankruptcy law. Borrower shall not terminate or
permit termination of a Ground Lease by exercise of the Election without
the prior written consent of Lender and any such Election (without the
prior written consent of Lender) shall be null and void. Because the
Ground Leases are a significant part of Lender's security for the Loan,
Lender does not anticipate that it would consent to termination of any
Ground Lease and shall not under any circumstances be obliged to give such
consent. Borrower acknowledges and agrees that the Election is in the
nature of a remedy and is not a property interest which can exist separate
from the Ground Lease. Therefore, it agrees that exercise of the Election
in favor of preserving the right to possession under any Ground Lease shall
not be deemed to constitute a taking or sale of the affected Mortgaged
Property or Mortgaged Properties by Lender and shall not entitle Borrower
to any credit against Lender.
5.3.2. SUBSTITUTE MANAGER
Notwithstanding the foregoing SECTION 5.3.1, Borrower may replace the
Manager and designate and retain a substitute manager for all (but not less than
all) of the Mortgaged Properties on the following terms and conditions:
(i) no Default or Event of Default shall have occurred and be
continuing;
(ii) the substitute manager shall either be (x) a manager that is an
Affiliate of Xxxxx XXXX and in which Xxxxx XXXX owns directly or
indirectly at least a 75% economic or beneficial interest or
(y) a third party manager of recognized standing and experience
in the management of office properties comparable to the
Mortgaged Properties that is acceptable to Lender;
(iii) Lender shall have approved the management agreement to be
entered into between Borrower and the substitute manager;
(iv) the fee payable to the substitute manager shall not exceed the
five percent (5%) of the Gross Income from Operations from the
Mortgaged Properties; and
(v) if the Securitization has occurred, each of the Rating Agencies
delivers to Lender a Rating Comfort Letter with respect thereto.
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5.4. FINANCIAL AND OTHER INFORMATION
Borrower shall furnish to Lender the Financial Statements, notices,
and other items described below in this SECTION 5.4 (the "INFORMATION") at the
times indicated. Whenever any Financial Statements, notice or other item shall
be stated to be due on a day other than a Business Day, such Financial
Statement, notice or other item shall be due on the next succeeding Business
Day. All Financial Statements relating to earnings and expenses shall set forth
separately, or otherwise identify all extraordinary and non-recurring items to
the extent required by GAAP.
5.4.1. QUARTERLY FINANCIAL STATEMENTS
Borrower shall furnish to Lender, as soon as practicable, and in any
event within 45 days after the end of each Accounting Quarter (other than the
last Accounting Quarter in any Fiscal Year), an unaudited consolidated balance
sheet of Borrower as at the end of such Accounting Quarter and unaudited
consolidated statement of income and expense of Borrower for each such
Accounting Quarter, and for that part of the Fiscal Year to date, and an
unaudited consolidated statement of cash flow of Borrower for that part of the
Fiscal Year to date, all in the form that would be required of Borrower if
Borrower were required to file quarterly reports with the SEC on Form 10-Q,
setting forth in each case, in comparative form, the corresponding figures for
the corresponding period(s) of the preceding Borrower Fiscal Year, which
statements shall, as a whole, fairly present the financial position of Borrower
as at the end of the periods indicated and the results of the operations of
Borrower for such periods and which shall be certified by an Authorized
Accounting Officer as having been prepared under his or her supervision in
accordance with GAAP, subject to year-end audit adjustments, and stating that
such Authorized Accounting Officer knows of no facts inconsistent with such
Financial Statements and that such Financial Statements, as a whole, fairly
present the financial position of Borrower as of the end of the periods
indicated and the results of the operations of Borrower for such periods. Any
financial statements furnished pursuant to this SECTION shall be accompanied by
a certificate of an Authorized Accounting Officer stating that, to his or her
knowledge, no Default or Event of Default has occurred and is continuing or, if
a Default or Event of Default has occurred and is continuing, a statement as to
the nature thereof, the period of its existence, and the action that Borrower
has taken or proposes to take with respect thereto.
5.4.2. BORROWER'S ANNUAL FINANCIAL STATEMENTS
Borrower shall furnish to Lender, as soon as practicable, and in any
event within 90 days after the end of each Fiscal Year of Borrower, a
consolidated balance sheet of Borrower as at the end of such Fiscal Year and a
consolidated statement of income, partners' capital or deficit and consolidated
cash flow of Borrower for such Fiscal Year, setting forth in each case, in
comparative form, the corresponding figures for the preceding Fiscal Year,
prepared in accordance with GAAP, and in the form that would be required of
Borrower if Borrower were required to file annual reports with the SEC on Form
10-K. Such Financial Statements shall be accompanied by (A) (1) an audit report
and opinion in respect of such Financial Statements of Ernst & Young or other
"Big Six" independent certified public accounting firm selected by Borrower and
reasonably acceptable to Lender, which report and opinion shall be unqualified
as to the scope of the audit and reasonably satisfactory to Lender, and (2) the
written statement of the accountants described in clause (1) that, in making the
examination necessary for their report and opinion on such Financial Statements,
they have obtained no knowledge of any condition, event or act that constitutes
a Default or Event of Default, or, if such accountants shall have obtained such
knowledge, a statement as to the nature and status thereof, and (B) a
certificate of an Authorized Accounting Officer, stating that (1) such Financial
Statements have been prepared under his or her supervision in accordance with
GAAP and that he or she knows of no facts inconsistent with such
49
Financial Statements and (2) to his or her knowledge, no Default or Event of
Default has occurred is continuing or, if a Default or Event of Default has
occurred and is continuing, a statement as to the nature thereof, the period of
its existence, and the action that Borrower has taken or proposes to take with
respect thereto.
5.4.3. BUDGETS
(a) For the partial year period commencing on the Anticipated
Repayment Date, and for each Fiscal Year thereafter, Borrower shall submit to
Lender for Lender's written approval the Annual Budget not later than thirty
(30) days prior to the commencement of such period or Fiscal Year. Such Annual
Budget shall be in form and substance reasonably satisfactory to Lender setting
forth in reasonable detail budgeted monthly operating income and monthly
operating capital and monthly operating and other expenses for the Property,
including all planned capital expenditures in respect of the Property for such
period or Fiscal Year. Each such Annual Budget approved by Lender shall
hereinafter be referred to as an "APPROVED ANNUAL BUDGET ". Until such time
that Lender approves a proposed Annual Budget, the most recently Approved Annual
Budget shall apply; provided that, such Approved Annual Budget shall be adjusted
from time to time to reflect actual increases in real estate taxes, insurance
premiums and utilities expenses.
(b) In the event that, after the Anticipated Repayment Date, Borrower
must incur an extraordinary operating expense or capital expense not set forth
in the Annual Budget (each an "EXTRAORDINARY EXPENSE"), then the Borrower shall
promptly deliver to Lender a reasonably detailed explanation of such proposed
Extraordinary Expense for the Lender's approval.
5.4.4. PROPERTY OPERATING STATISTICS
Borrower shall furnish to Lender operating statements setting forth
the Net Operating Income and occupancy statements for each Mortgaged Property
for each calendar month together with rent rolls (which rent rolls shall contain
the same information as the rent rolls provided by Borrower to Lender in
connection with the Closing) within 15 days following the end of such calendar
month in each case certified as true and correct by an Authorized Accounting
Officer and accompanied by a calculation of the Debt Service Coverage Ratio as
of the end of such calendar month.
5.4.5. CERTIFICATES REGARDING DEFAULTS
Within five (5) Business Days after any officer of the General Partner
obtains knowledge of any Default or Event of Default, Borrower shall furnish to
Lender a statement of such officer specifying the nature of such Default or
Event of Default, the period of existence thereof, and the action that Borrower
has taken or proposes to take with respect thereto.
5.4.6. PROPOSED AMENDMENTS TO PARTNERSHIP AGREEMENT
Not less than ten (10) days prior to the execution thereof, Borrower
shall furnish to Lender a true and complete copy of any proposed amendment to
the Partnership Agreement, which proposed amendments shall be subject to the
provisions of SECTION 6.5.1 hereof.
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5.4.7. ENVIRONMENTAL CONDITIONS
Within five (5) Business Days after any officer of the General Partner
obtains knowledge of or discovers any occurrence or condition on any real
property adjoining or in the vicinity of any Mortgaged Property that might
reasonably be expected to cause such Mortgaged Property or the Land on which it
is located to be subject to any investigation or cleanup pursuant to any
Environmental Law which could reasonably be expected to lead or result in a
material adverse effect upon the business, operations, prospects, assets,
properties or condition (financial or otherwise) of Borrower or any Mortgaged
Property, Borrower shall furnish to Lender written notice thereof describing the
nature thereof and the actions, if any, that Borrower proposes to take to
address it.
5.4.8. EVIDENCE OF TAX PAYMENTS
Concurrently with the delivery of Financial Statements required by
SECTIONS 5.4.1 and 5.4.2, Borrower shall provide to the Lender evidence of the
payment of all real estate taxes that were due and payable on the Mortgaged
Properties during the preceding Accounting Quarter.
5.5. MAINTENANCE OF EXISTENCE, ETC.
At all times (a) maintain its principal place of business, principal
office, and office where it keeps its records and other documents and
instruments, relating to the Mortgaged Properties (except for certain records,
documents and instruments kept at the Mortgaged Properties) at its address set
forth in SECTION 11.3 hereof or such other address of which Lender may be given
written notice not less than thirty (30) days prior to the date on which a
change of location is to occur; (b) obtain and maintain in full force and effect
all authorizations, consents, approvals, licenses, exemptions and other actions
by, and all registrations, qualifications, designations, declarations and other
filings, if any, with, any governmental or administrative board, body,
commission, authority, bureau, or agency necessary (i) in connection with the
execution and delivery of this Agreement, the Mortgage Note, and the other Loan
Documents, the consummation of the transactions contemplated herein or therein,
and the performance of or compliance with the terms and conditions thereof, or
(ii) to ensure the legality, validity and enforceability hereof or thereof; and
(c) maintain in effect its existence pursuant to the Partnership Agreement and
cause the General Partner to (and by signing this Agreement on behalf of
Borrower the General Partner agrees to) (x) maintain its corporate, partnership
or other existence in effect and in good standing and (y) comply with all
requirements of Law material to the conduct of its business (including
continuing to be qualified to engage in business in each jurisdiction where such
qualification is required) and the performance of the obligations of Borrower or
the General Partner under the Loan Documents to which Borrower or the General
Partner is a party.
5.6. COMPLIANCE WITH APPLICABLE LAWS
Comply in all material respects with all requirements of Law applicable to
the conduct of its business (including continuing to be registered or qualified
to do business in each jurisdiction where such registration or qualification is
required), the operation of the Mortgaged Properties, and the performance of the
obligations of Borrower under the Loan Documents to which Borrower is a party,
including Environmental Laws, rules, regulations and orders of any governmental
authority.
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5.7. MAINTENANCE OF BOOKS; INSPECTION OF PROPERTIES AND BOOKS
Keep and maintain adequate and proper records and books of account, in
which complete entries are made in accordance with GAAP and in accordance with
all applicable laws and regulations, and permit authorized representatives of
Lender to discuss the business, operations, prospects, assets, properties and
condition (financial or otherwise) of Borrower with its officers and employees
and, at reasonable times and on reasonable notice (except during the existence
of an Event of Default, in which case no notice shall be required) to examine
its books of account and other records and make copies thereof or extracts
therefrom, all at such reasonable times as Lender may request.
5.8. NOTICE OF LITIGATION; DISPUTES
Give written notice to Lender within five (5) Business Days after
learning of:
(i) Any action, suit or proceeding instituted against Borrower
or any action, suit or proceeding instituted by Borrower in any federal or
state court or before any commission or other regulatory body (federal, state
or local, domestic or foreign), or any such proceedings threatened against
Borrower (including (i) any proceeding initiated by any party with respect to
the presence or release, or alleged presence or release, of any Hazardous
Materials at, on, under, from or about any Mortgaged Property or the Land on
which any Mortgaged Property is located and (ii) any claim made or threatened
by any third party against Borrower or any such Mortgaged Property or Land
relating to any loss or injury resulting from any Hazardous Materials) an
adverse determination of which could reasonably be expected to lead to or
result in a material adverse effect upon the business, operations, prospects,
assets, properties or condition (financial or otherwise) of Borrower or any
Mortgaged Property, in each case containing the details thereof;
(ii) The filing, recording or assessment of any Federal, state
or local tax lien against it, or any of its assets, an adverse determination
of which could reasonably be expected to lead to or result in a material
adverse effect upon the business, operations, prospects, assets, properties
or condition (financial or otherwise) of Borrower or any Mortgaged Property;
(iii) Any dispute between Borrower and any Governmental
Authority or other Person which, if adversely determined, could reasonably be
expected to materially interfere with the normal business operations of
Borrower or any Mortgaged Property.
Borrower shall permit Lender to join and participate as a party, if
Lender so elects, in any legal proceedings or actions initiated with respect to
any Mortgaged Property or the Land on which any Mortgaged Property is located in
connection with any Environmental Law or Hazardous Materials.
5.9. MORTGAGED PROPERTY OPERATIONS; MAINTENANCE
At all times, (a) conduct continuously and operate actively its
business at the Mortgaged Properties (subject to temporary cessation of, or
other limitations on, its activities due to strikes, lockouts, casualties,
events of Force Majeure, or other causes beyond the reasonable control of
Borrower, provided prompt written notice thereof is given to Lender); (b) keep
in full force and effect and existence all rights, licenses, permits and
franchises required for the use or operation of the Mortgaged Properties; (c)
maintain the Mortgaged Properties in good and clean order and condition such
that the utility and operation of the Mortgaged Properties will not be affected
in any material and adverse respect, subject to
52
ordinary wear and tear and damage caused by fire or other casualty; (d) make or
cause to be made all necessary or appropriate repairs, replacements and renewals
to the Mortgaged Properties in the manner and within the periods required by the
Management Agreement and the applicable Mortgages; and (iii) not commit or
permit any waste to the Mortgaged Properties or any part thereof.
5.10. SEPARATE EXISTENCE
Borrower and the General Partner shall each (i) maintain their books
and records and bank accounts separate from any other person or entity (except
that, for accounting and reporting purposes, Borrower and the General Partner
may be included in the consolidated financial statements of Xxxxx XXXX in
accordance with generally accepted accounting principles); (ii) maintain an
arm's length relationship with their partners, Affiliates and any other party
furnishing services to either of them; (iii) maintain its books, records,
resolutions and agreements as official records; (iv) conduct their business in
their own name and through their own authorized officers and agents; (v) prepare
and maintain their financial statements, accounting records and other
corporation or partnership documents separate from those of any other Person
(except for inclusion of Borrower and the General Partner in consolidated
financial statements of Xxxxx XXXX); (vi) pay their own liabilities out of their
own funds and other assets; (vii) observe all partnership or corporate
formalities, as applicable, necessary to maintain their identities as entities
separate and distinct from one another and from Xxxxx XXXX, Xxxxx OP and all
other Affiliates; (viii) participate in the fair and reasonable allocation of
any and all overhead expenses and other common expenses for facilities, goods or
services provided to multiple entities; (ix) use its own stationery, invoices
and checks (except when acting in a representative capacity); (x) hold and
identify itself as a separate and distinct entity under its own name and not as
a division or part of any other Person (except for inclusion of Borrower and the
General Partner in consolidated financial statements of Xxxxx XXXX); and (xi)
hold its assets in its own name. Borrower and the General Partner shall comply
with all of the assumptions set forth in the Substantive Non-Consolidation
Opinion delivered by Borrower's counsel at Closing.
5.11. CASH MANAGEMENT
Borrower will comply with, and will direct the Manager to comply with,
the provisions of SCHEDULE 5.11 hereto, which shall govern the collection and
application of Operating Income, Awards, and Insurance Proceeds and the
administration of the Reserve Account, the Cash Collateral Account, and the
Lockbox Account. Lender agrees that it shall administer the Cash Collateral
Account, the Reserve Account and the Lockbox Account in accordance with the
provisions of SCHEDULE 5.11 hereto).
5.12. INDEPENDENT DIRECTOR
Borrower shall ensure that the General Partner shall have an
Independent Director acceptable to Lender at all times, or if the Independent
Director has resigned, that the General Partner shall not take any action which
may not be taken pursuant to the organizational documents of the General Partner
without the consent of the Independent Director, until such new Independent
Director shall have been appointed.
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5.13. RESERVE REQUIREMENT
If, at any time, the amount on deposit in the Reserve Account is less
than the Reserve Requirement, the Excess Cash Flow for each Accounting Period
shall be deposited into the Reserve Account until the amount on deposit in the
Reserve Account equals the Reserve Requirement (provided, that following the
occurrence of a Lockbox Event, any deficiency in the Reserve Account shall be
paid pursuant to Section 4.4 of the Cash Management Procedures). Borrower shall
not make any distributions to its Partners at any time that the amount on
deposit in the Reserve Account is less than the Reserve Requirement.
6. NEGATIVE COVENANTS
Borrower agrees that, so long as this Agreement shall remain in
effect, or so long as there exists any principal, interest or Yield Maintenance
Payment due or outstanding under the Mortgage Note, or any other unpaid charges
or amounts under this Agreement or under any other Loan Document, then:
6.1. LIMITATION ON INDEBTEDNESS
Borrower and the General Partner shall not incur, create or assume any
Indebtedness of any kind, provided that Borrower or the General Partner may
incur, create or assume any Permitted Debt.
6.2. LIMITATION ON LIENS
Borrower shall not create, assume or suffer to exist, any Lien of any
kind, upon any of its properties, assets or Collateral, whether now owned or
hereafter acquired, except Permitted Liens.
In the event Borrower contests the payment of a tax, assessment or
other governmental charge or contests a landlords', mechanics', materialmen's,
warehousemen's, carriers', or other like Lien, Borrower, prior to the
commencement of such contest and prior to the date such payment would otherwise
be due and payable, shall deposit with Lender (or, following the assignment
contemplated by SECTION 9.1 hereof, deposit with the Servicer) an amount equal
to 125% of the amount of the contested payment, to be held in a segregated
subaccount of the Cash Collateral Account; provided, however, Borrower shall not
be required to make such a deposit so long as the aggregate of all such Liens
that Borrower is contesting without deposit is less than Fifty Thousand Dollars
($50,000). Upon the conclusion of such contest and upon written request by
Borrower accompanied by supporting documentation, Lender (or the Servicer) shall
disburse from the deposit made by Borrower with Lender (or the Servicer) any
amounts required to be paid by Borrower and shall remit the excess to Borrower.
Notwithstanding the foregoing, Lender (or the Servicer) may pay over to the
appropriate Person any or all of the funds on deposit with Lender (or the
Servicer) when, in Lender's (or the Servicer's) reasonable judgment, the
entitlement of such Person to such funds is firmly established or if necessary
to avoid the foreclosure of a Lien that secures the contested payment.
6.3. MERGER OR CONSOLIDATION; PERMITTED REORGANIZATION
Neither Borrower nor the General Partner shall be a party to any merger or
consolidation.
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6.4. SINGLE PURPOSE
Borrower shall not engage in any business or operate for any purpose
other than as set forth in the Partnership Agreement as in effect on the date
hereof and shall not have or create any subsidiaries. The General Partner shall
not engage in any business or operate for any purpose other than as a general
partner of Borrower and shall at all times be a Single Purpose entity. Neither
Borrower nor the General Partner will: (i) seek or consent to any dissolution,
winding up, liquidation, consolidation, merger or sale of all or substantially
all of its assets; (ii) fail to correct any known misunderstanding regarding its
separate identity; (iii) commingle its funds or other assets with those of any
other Person; (iv) assume or guarantee or become obligated for the debts of any
other Person or hold out its credit as being available to satisfy the
obligations of any other Person (other than as permitted by the Loan Documents);
(v) acquire obligations or securities of its partners or shareholders, as the
case may be; (vi) pledge any of its assets for the benefit of any other Person
other than Lender (except as permitted by the Loan Documents); (vii) make any
loans to any other Person; (viii) identify its partners or shareholders, as the
case may be, or any of its Affiliates as a division or part of it (except for
inclusion of the Borrower and the General Partner in consolidated financial
statements of Xxxxx XXXX); (ix) engage (either as transferor or transferee) in
any material transaction with any Affiliate other than for fair value and on
terms similar to those obtainable in arms-length transactions with unaffiliated
parties, or engage in any transaction with any Affiliate involving any intent to
hinder, delay or defraud any entity; (x) engage in any business activity or
operate for any purpose other than as stated in Section 1.3 of its Partnership
Agreement and Article II of the GP Certificate, as applicable, in each case as
in effect on the date hereof or (xi) without the consent of all its directors or
all the directors of its General Partner, as applicable, including the consent
of an Independent Director, file a bankruptcy or insolvency petition or
otherwise institute bankruptcy proceedings. Borrower will not acquire any
assets not related to the business and operation of the Mortgaged Properties.
6.5. AMENDMENTS TO AGREEMENTS
6.5.1.
Borrower shall not, without the consent of Lender, (i) amend, modify
or alter the terms of the Partnership Agreement, (ii) admit a General Partner,
(iii) cancel, release, terminate or surrender the Management Agreement or any
Ground Lease, or permit any cancellation, release, termination or surrender of
the Management Agreement or any Ground Lease or (iv) amend, modify or alter the
terms of the Management Agreement or any Ground Lease in any material respect;
PROVIDED THAT Borrower shall be entitled to cancel, release, terminate,
surrender, amend, modify or alter the Management Agreement in connection with
the replacement of the Manager if, before the date on which the Manager ceases
to be the Manager of any Mortgaged Property, (a) Borrower causes such Mortgaged
Property to come under management by a third party property manager in
accordance with the provisions of clauses (i), (ii)(y), (iii), (iv) and (v) of
SECTION 5.3.2 above, (b) each of the Rating Agencies delivers to the Lender a
Rating Comfort Letter with respect thereto; and PROVIDED FURTHER that Borrower
may cancel, release, terminate, surrender, amend, modify or alter any Ground
Lease (x) in connection with the sale of the Mortgaged Property situated on the
Land that is subject to such Ground Lease and (y) in compliance with the Loan
Documents.
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6.5.2.
Neither Borrower nor the General Partner shall enter into or consent
to any termination, amendment, waiver or supplement of any of the provisions of
the General Partner's organizational or governing documents without the consent
of Lender.
6.6. DISTRIBUTIONS
Borrower shall make no distributions of cash or other assets to the
Partners if an Event of Default has occurred and is continuing.
6.7. PERMITTED TRANSFERS
Borrower shall not transfer, pledge, hypothecate or assign any of the
Mortgaged Properties except (a) to Lender or (b) in connection with the
simultaneous Release of such Mortgaged Property pursuant to SECTION 2.7, SECTION
2.8, SECTION 2.9, SECTION 2.10 OR SECTION 11 hereof.
7. EVENTS OF DEFAULT
7.1. DEFAULT; AN EVENT OF DEFAULT
The occurrence of any of the following events beyond any applicable
notice and cure period set forth in this Section 7.1 shall be an "EVENT OF
DEFAULT" hereunder (and the occurrence of any of the following which, with the
giving of notice or the passage of time, or both, would become an Event of
Default shall, prior to the giving of such notice or the passage of such time,
be a "DEFAULT" hereunder).
7.1.1.
Borrower shall fail to pay, when due, any principal or interest on the
Mortgage Note or any Yield Maintenance Payment or Defeasance Deposit that may be
due.
7.1.2.
Borrower shall fail to pay, when due, any other amount due under or
pursuant to the Mortgage Note, this Agreement, or any of the other Loan
Documents (other than principal, interest, and any Yield Maintenance Payments or
Defeasance Deposits).
7.1.3.
Borrower shall fail to perform or observe in any material and adverse
respect any of the covenants and agreements of Borrower set forth in this
Agreement, or any representation and warranty made by Borrower in this Agreement
or in any of the other Loan Documents shall fail to have been true in any
material and adverse respect when made and, in either case, such failure shall
continue uncured for a period of more than (i) 10 days with respect to any
failure or breach of covenant relating to the payment of taxes or the
maintenance of insurance, or (ii) with respect to all other such failures or
breaches, 30 days following Borrower's receipt of written notice thereof from
Lender; PROVIDED THAT with respect to clause (ii) above, it shall not be an
Event of Default hereunder if (a) such failure is cureable but is not
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reasonably capable of being cured within such 30-day period and Borrower shall
have promptly commenced to cure such failure (including by consummation of a
sale of the affected Mortgaged Properties and the payment of the applicable
Release Price, Defeasance Deposit and Yield Maintenance Payment, if any) and
thereafter shall diligently pursue such cure to completion, but in no event
later than 90 days after the date on which Borrower received such written notice
from Lender.
7.1.4.
The Manager shall cease to be Manager of all of the Mortgaged
Properties or the Management Agreement shall terminate with respect to one or
more Mortgaged Properties, unless, before the date on which the Manager ceases
to be the Manager of any such Mortgaged Property, or the Management Agreement
terminates with respect to any such Mortgaged Property, (a) Borrower causes such
Mortgaged Property to come under management by a third party property manager in
accordance with clauses (i), (ii)(y), (iii), (iv) and (v) of SECTION 5.3.2,
hereof, and (b) if the Securitization has occurred, each of the Rating Agencies
delivers to Lender a Rating Comfort Letter with respect thereto.
7.1.5.
Borrower or the General Partner shall default in its payment of any
Indebtedness with an aggregate principal amount in excess of $2,000,000.
7.1.6.
If at any one time there shall be any final nonappealable judgment or
judgments rendered by any court or Governmental Authority not covered by
insurance aggregating in excess of $5,000,000 against Borrower or the General
Partner, which shall not have been satisfied, fully stayed or bonded within
60 days after the entry thereof.
7.1.7.
Either of the following shall occur with respect to Borrower or the
General Partner:
(a) a decree, judgment, or order by a court of competent
jurisdiction shall have been entered adjudicating Borrower or the
General Partner as bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization of Borrower or the General
Partner under any Bankruptcy Law, and such decree or order shall have
continued undischarged and unstayed for a period of 60 consecutive
days; or a decree, judgment or order of a court of competent
jurisdiction appointing a receiver, liquidator, trustee, or assignee
in bankruptcy or insolvency for Borrower or the General Partner, or
any substantial part of the property of Borrower or the General
Partner, or for the winding up or liquidation of the affairs of
Borrower or the General Partner, and such decree, judgment, or order
shall have remained in force undischarged and unstayed for a period of
60 days; or
(b) Borrower or the General Partner shall institute proceedings
to be adjudicated a voluntary bankrupt, or shall consent to the filing
of a bankruptcy proceeding against it, or shall file a petition or
answer or consent seeking reorganization under any Bankruptcy Law, or
shall consent to the filing of any such petition, or shall consent to
the appointment of a custodian, receiver, liquidator, trustee, or
assignee in
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bankruptcy or insolvency of it or any substantial part of its assets
or property, or shall make a general assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts
generally as they become due, or shall, within the meaning of any
Bankruptcy Law, become insolvent, fail generally to pay its debts as
they become due, or shall, within the meaning of any Bankruptcy Law,
become insolvent, fail generally to pay its debts as they become due,
or take any corporate action in furtherance of or to facilitate,
conditionally or otherwise, any of the foregoing.
7.1.8.
Unless Borrower causes all of the Mortgaged Properties to come under
management by a third party manager in accordance with clauses (i), (ii)(y),
(iii), (iv) and (v) of SECTION 5.3.2 hereof, either of the following shall occur
with respect to the Manager:
(a) a decree, judgment, or order by a court of competent
jurisdiction shall have been entered adjudicating the Manager as
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization of the Manager under any Bankruptcy Law, and
such decree or order shall have continued undischarged and unstayed
for a period of 60 consecutive days; or a decree, judgment or order of
a court of competent jurisdiction appointing a receiver, liquidator,
trustee, or assignee in bankruptcy or insolvency for the Manager, or
any substantial part of the property of the Manager, or for the
winding up or liquidation of the affairs of the Manager shall have
been entered, and such decree, judgment, or order shall have remained
in force undischarged and unstayed for a period of 60 days; or
(b) the Manager shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent
seeking reorganization under any Bankruptcy Law, or shall consent to
the filing of any such petition, or shall consent to the appointment
of a custodian, receiver, liquidator, trustee, or assignee in
bankruptcy or insolvency of it or any substantial part of its assets
or property, or shall make a general assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts
generally as they become due, or shall, within the meaning of any
Bankruptcy Law, become insolvent, fail generally to pay its debts as
they become due, or take any corporate action in furtherance of or to
facilitate, conditionally or otherwise, any of the foregoing.
7.1.9.
An Event of Default shall occur under any other Loan Document.
7.1.10.
If a Securitization has not yet occurred, Borrower shall default in a
material respect under the Cooperation Agreement after the giving of any
required notice and/or the expiration of any required cure period.
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7.1.11.
The General Partner (i) shall cease to be the general partner of
Borrower, (ii) shall fail to have at least one director who is an Independent
Director, other than as a result of the resignation or removal of an Independent
Director, so long as the General Partner is then diligently searching for a new
Independent Director, (iii) shall terminate, liquidate or dissolve, or shall
cease to be controlled by Xxxxx XXXX, (iv) shall engage, directly or indirectly,
in any business or activity except serving as general partner of Borrower.
7.1.12.
Borrower acquires any assets not related to the business and operation
of the Mortgaged Properties (other than a direct or indirect interest in a
residual class certificate issued pursuant to the Securitization).
7.1.13.
The occurrence of an event of default under any Ground Lease.
7.1.14.
Following the occurrence of a Lockbox Event, the willful failure of
Borrower to instruct tenants of the Mortgaged Properties to make payments of
Rents into the Lockbox Account or the failure of Borrower or Manager to deposit
payments of Rents received by Borrower or Manager into the Lockbox Account
promptly upon receipt thereof.
7.1.15.
In the event Borrower or the General Partner shall fail to perform or
observe any of the covenants set forth in SECTION 5.10 or SECTION 6.4 hereof and
such failure shall continue for thirty (30) days following Borrower's receipt of
notice of such failure from Lender, provided that it shall not be an Event of
Default hereunder if such failure is cureable but is not reasonably capable of
being cured within such 30-day period and Borrower shall have promptly commenced
to cure such failure and thereafter shall diligently pursue such cure to
completion, but in no event later than 90 days after the date on which Borrower
received such written notice from Lender.
7.2. REMEDIES
If an Event of Default shall have occurred and be continuing, Lender
shall have the right, in its sole discretion, by written notice to Borrower
(except upon the occurrence of an Event of Default under SECTION 7.1.7 affecting
Borrower, in which case all principal and accrued interest thereon will be
immediately due and payable on the Mortgage Note without any declaration or
other act on the part of Lender) to take one or more of the following actions:
7.2.1.
To declare the principal of and all amounts accrued but unpaid under
the Mortgage Note, this Agreement and the other Loan Documents, together with a
Yield Maintenance Payment calculated in accordance with SECTION 2.11 hereof, to
be immediately due and payable, and such amounts shall
59
thereupon become immediately due and payable, without presentment, demand,
protest or notice of any kind, other than any notice specifically required by
this SECTION 7.2, all of which are hereby expressly waived by Borrower.
7.2.2.
Pursue such rights and remedies against Borrower, or otherwise, as are
provided under and pursuant to this Agreement, the Mortgages or any of the other
Loan Documents and as may be available to the Lender at law or in equity.
7.2.3.
If the Event of Default involves Borrower's failure to pay any tax,
assessment, encumbrance or other imposition binding on Borrower or any of the
Collateral or to perform its obligation to furnish insurance hereunder, or to
perform or observe any other covenant, condition or term in any Loan Document or
in the Management Agreement or any Ground Lease, Lender may, at its option,
without waiving or affecting any of its other rights or remedies hereunder, pay,
perform or observe the same, and, in connection therewith, Lender shall be
entitled to rely on any representations and statements of the ground lessor
under any such Ground Lease or of the Manager under the Management Agreement in
regard to alleged breaches or violations thereof, and all payments made or costs
or expenses incurred by Lender in connection therewith shall be repaid by
Borrower to Lender within fifteen (15) days after demand therefor, together with
interest at the Default Interest Rate, and shall be added to and become a part
of the Indebtedness secured by the Mortgages and other Security Documents.
Lender is hereby empowered to enter and to authorize others to enter upon any
Land and all Improvements located on any Land for the purpose of performing or
observing any such defaulted covenant, condition or term, without thereby
becoming liable to Borrower or any Person in possession holding under Borrower.
7.2.4.
Appoint as a matter of right, without notice, to the fullest extent
permitted under applicable law, a receiver for Borrower or for all or any part
of the Collateral, whether such receivership be incidental to a proposed sale of
the Collateral or otherwise. All disbursements made by the receiver and the
expenses of receivership, shall be added to and be a part of the principal
amount of the obligations secured by the Security Documents, and, whether or not
said principal sum, including such disbursements and expenses, exceeds the
indebtedness originally intended to be secured thereby, the entire amount of
said sum, including such disbursements and expenses, shall bear interest at the
Default Interest Rate, be secured by the Security Documents and shall be due and
payable within fifteen (15) days after demand therefor.
7.3. REMEDIES CUMULATIVE
Each of the rights, powers, and remedies provided herein are intended
and are hereby deemed to be cumulative, concurrent and in addition to, and not
in limitation of, those rights, powers, and remedies provided elsewhere
hereunder or in any other Loan Document or now or hereafter existing at law or
in equity or by statute or otherwise. No waiver of any Event of Default in one
instance shall constitute a waiver of any other or any succeeding Event of
Default, except to the extent provided in such waiver.
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7.4. DEFAULT INTEREST
In addition to the provisions of SECTION 2 hereof, if Borrower shall
fail to make payment when and as due of any amounts due hereunder (whether at
the stated date for payment, or earlier upon an acceleration hereunder),
Borrower shall pay, to the fullest extent permitted by applicable law, interest
to Lender on such past due amounts beginning on the date such payment becomes
past due at a per annum rate of interest (the "DEFAULT INTEREST RATE") equal to
the greater of (a) the Interest Rate in effect from time to time plus three
percentage points (3%) and (b) the Prime Rate plus two percentage points (2%).
Borrower acknowledges that its obligation to pay Default Interest may be
separated from the other obligations of Borrower hereunder, and may be held or
transferred separately from the other obligations of the Borrower hereunder.
7.5. DEFAULT INDEMNITY
Borrower hereby agrees to, and shall, indemnify and hold harmless
Lender against the reasonable out-of-pocket costs and expenses (including
reasonable attorneys' fees and expenses) which it may sustain or incur as a
consequence of any Default or Event of Default hereunder and in the enforcement
of Lender's rights and remedies in connection therewith. Lender shall provide
to Borrower a satisfactory statement, signed by an officer of Lender and
supported, where applicable, by documentary evidence, explaining the amount of
all such costs or expenses. Any amounts that Borrower must pay to Lender under
this SECTION 7.5 shall bear interest at the Default Interest Rate and shall be
due fifteen (15) days after demand therefor accompanied by documentation
sufficient to establish the amount of Borrower's liability, and shall be added
to and become a part of the Indebtedness secured by the Mortgages and other
Security Documents.
8. INSURANCE
8.1. MAINTENANCE OF INSURANCE
Borrower shall maintain at all times with Qualified Insurance
Companies all policies of insurance required under the Mortgage, which policies
shall name Lender, as an additional insured or loss payee, as applicable, as
their interests may appear. Each policy of insurance required hereunder shall
require the insurer to give not less than thirty (30) days' prior written notice
to Lender in the event of cancellation of such policy for any reason whatsoever
(ten (10) days in the case of non-payment of premium) and, with respect to
property insurance, shall provide that the interest of the additional insureds
or loss payees thereunder shall not be impaired or invalidated by any act or
neglect of Borrower or the owner of any of the insured property or by the
occupation of the premises wherein such property is located for purposes more
hazardous than are permitted by such policy. If Borrower fails to provide and
pay for such insurance, Lender may, at Borrower's expense, procure the same, but
shall not be required to do so, and any amounts reasonably expended by Lender to
do so, together with interest at the Default Interest Rate shall become part of
the debt secured by the Security Documents.
8.2. PAYMENT AND APPLICATION OF INSURANCE PROCEEDS
Insurance proceeds payable with respect to damage to or destruction of
any Mortgaged Property or the Improvements related thereto, including damage by
earthquake, if in effect, shall be
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applied in accordance with the terms of the applicable Mortgage. All other
insurance proceeds shall be payable in accordance with the provisions of the
applicable policy.
8.3. EARTHQUAKE INSURANCE
Borrower shall maintain at all times or cause to be maintained for its
benefit with a Qualified Insurance Company, a blanket policy of insurance
insuring all of the Mortgaged Properties against damage by earthquake in an
aggregate insured amount not less than $26,615,000 and having a deductible of
not more than five percent (5%) per unit of earthquake insurance subject to a
$100,000 minimum (a unit being defined as each individual building on each
Mortgaged Property). Such earthquake insurance shall otherwise comply with the
requirements of SECTION 1.7.3 of the Mortgage.
9. SECURITIZATION
9.1. SECURITIZATION
Borrower and the General Partner shall use commercially reasonable
best efforts to cooperate with Lender in its activities in connection with the
sale of the Loan as a whole loan or any securitization of the Loan (the
"SECURITIZATION"), including obtaining ratings by the Rating Agencies in
accordance with the terms hereof and in accordance with the Cooperation
Agreement. The Securitization will involve the issuance of rated single- or
multi-class securities secured by or evidencing ownership interests in the Loan
Documents (the "CERTIFICATES"). Borrower acknowledges and agrees that, in
connection with the Securitization, (a) this Agreement, the Mortgage Note, the
Security Documents and the other Loan Documents may be assigned, pursuant to the
assignment, to a trustee (the "TRUSTEE"), as trustee under a pooling and
servicing agreement (the "POOLING AND SERVICING AGREEMENT") in form
substantially similar to those commonly used in rated commercial mortgage-backed
securities offerings and (b) pursuant to the Pooling and Servicing Agreement, a
professional loan servicer of recognized standing (the "SERVICER") would be
appointed to service the Loan, this Agreement and the Loan Documents as provided
therein. The addresses of the Trustee and the Servicer will be provided to
Borrower and the Ground Lessor in writing before the Securitization is
consummated. Upon such assignment, the Trustee shall for all purposes be the
sole Lender hereunder and the sole mortgagee or beneficiary under the Mortgage
(and all references herein to the "Lender" shall be deemed to refer to the
Trustee) and shall, together with the Servicer, among other things, (i) have the
sole and exclusive benefit of and the right and power to exercise, or to direct
the exercise of, all the rights and remedies of Lender hereunder and under the
Security Documents, including the right to inspect the Collateral, to receive
notices and financial information, to grant or withhold consents or approvals,
to benefit from indemnities, to receive, hold and apply proceeds or any other
amount or property provided by Borrower hereunder, and, upon the occurrence and
during the continuation of an Event of Default, to take any action required or
permitted of Lender with respect thereto, all in the Trustee's own name, and to
exercise all other rights and remedies of Lender hereunder and under the
Security Documents, and (ii) be bound by all the terms hereof which apply to
Lender. Borrower hereby acknowledges the foregoing and agrees to be bound to
the Trustee, upon such assignment, recognizing the Trustee as Lender hereunder
as if the Trustee were named in this Agreement as Lender, recognizing that the
Servicer shall be entitled to act on behalf of the Trustee and the Holders under
and as provided in the Pooling and Servicing Agreement and shall be entitled to
and shall receive all notices, financial and other information, agreements and
other documents to be delivered to Lender or the Trustee hereunder or under any
of the other Loan Documents and accepting and agreeing to all of the terms
reasonably set forth in the Pooling
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and Servicing Agreement and the exhibits thereto, all of which shall be
secured under the Security Documents. Upon such assignment, Borrower's
obligations to Lender specified in this Agreement shall be satisfied by
Borrower's tendering full and timely payment or performance thereof to the
Trustee or, if directed by the Trustee, to the Servicer. With respect to the
delivery of documents and other written material, the Trustee and the
Servicer shall have only the obligations expressly required of Lender herein
or in the other Loan Documents or of the Trustee or the Servicer in the
Pooling and Servicing Agreement. All rights and remedies of the Trustee as
Lender hereunder, including all indemnities running to Lender, shall also
operate for the benefit of the Servicer and the Holders, as provided in the
Pooling and Servicing Agreement, and shall be exercised by the Trustee and
the Servicer in accordance with and subject to the terms and conditions set
forth in the Pooling and Servicing Agreement. Borrower acknowledges and
agrees that, until Borrower has received notice from the Trustee to the
contrary, and subject to the terms and conditions set forth in the Pooling
and Servicing Agreement to the contrary, all deliveries and notifications to
be made by Borrower to the Trustee, as Lender, pursuant to this Agreement or
any other Loan Document shall be made to the Servicer only and not to the
Trustee.
Borrower will cooperate with Lender to retain the Rating Agencies to
provide rating surveillance services on any Certificates issued in a
Securitization. Such rating surveillance shall be at the expense of Borrower.
Prior to the Securitization (or in the event the Securitization does not occur),
Lender may appoint a professional loan servicer of recognized standing to
service the Loan, this Agreement and the Loan Documents on terms and conditions
acceptable to Lender. The costs, fees and expenses of any such servicer shall
be paid by Lender.
9.2. NO ASSIGNMENT BY BORROWER
The rights and obligations of Borrower under this Agreement are
personal to Borrower and, accordingly, Borrower shall not assign this Agreement
or any other Loan Document or any other right, interest, or obligation of
Borrower hereunder or thereunder, either in whole or in part, to any Person
whatsoever.
9.3. METHOD OF PAYMENT
Following the assignment contemplated by SECTION 9.1 hereof, Borrower shall
make or cause to be made all payments under the Mortgage Note, and any other
payments required to be made by Borrower to or on behalf of Lender hereunder or
pursuant to any other Loan Document, to the Servicer by application of the
provisions of SCHEDULE 5.11 hereto or by wire transfer through the Federal
Reserve Bank of New York of immediately available funds in lawful tender of the
United States of America, in accordance with instructions provided by the
Servicer, which payments shall be held and applied by the Servicer in accordance
with the Pooling and Servicing Agreement.
10. ASSIGNMENT AND PARTICIPATION
Notwithstanding anything to the contrary set forth herein or in any
other Loan Document, Lender and any assignee of Lender shall have the right at
any time and from time to time to (a) assign (and thereafter, at any time and
from time to time, repurchase) all or any portion of its rights and obligations
with respect the Loan, including, without limitation, all or any portion of the
outstanding principal balance of the Loan and thereafter be released from its
rights and obligations as Lender in respect of such portion of the Loan (except
to the extent such portion of the Loan is repurchased by
63
Lender or such assignee), and (b) sell participations in the Loan. If requested
by Lender, Borrower shall execute and deliver a written acknowledgment
acknowledging the assignment of all or a portion of the Loan to an assignee.
11. SUBSTITUTION OF PROPERTIES
Subject to the terms and conditions set forth in this Section, at any
time following the commencement of the Defeasance Period, Borrower may obtain a
release of the Lien of the Mortgage (and the related Loan Documents) to the
extent it encumbers one or more Mortgaged Properties (a "SUBSTITUTED PROPERTY")
by substituting therefor one or more office properties acquired by Borrower
(individually, a "SUBSTITUTE PROPERTY" and collectively, the "SUBSTITUTE
PROPERTIES"), provided that (a) the Substitution Conditions are satisfied with
respect to the Substitute Properties, (b) no such substitution may occur after
the Anticipated Repayment Date, (c) such substitution shall not be allowed more
than two (2) times during the term of the Loan and (d) not more than five (5)
Mortgaged Properties may be released from the Lien of the Mortgage (and the
related Loan Documents) during the term of the Loan pursuant to this SECTION 11.
Any such substitution shall be subject, in each case, to the satisfaction of the
following conditions precedent (collectively, the "SUBSTITUTION CONDITIONS"):
(i) Lender shall have received a copy of a deed or an assignment
and assumption of lessee's interest in the Ground Lease
(together with the ground lessor's consent thereto), as
applicable, conveying all of Borrower's right, title and
interest in and to the Substituted Property or Substituted
Properties then being Released to an entity other than Borrower
and a letter from Borrower countersigned by the Title Company
acknowledging receipt of such deed or assignment and
assumption, as applicable, and agreeing to record such deed or
assignment and assumption, as applicable, in the real estate
records for the county in which the Substituted Property is
located or in the counties in which the Substituted Properties
are located;
(ii) Lender shall have received an appraisal of the Substitute
Property or Substitute Properties, as applicable, dated no more
than sixty (60) days prior to the substitution by an appraiser
acceptable to the Rating Agencies, indicating an appraised value
of the Substitute Property or Substitute Properties, as
applicable, that is equal to or greater than the Release Price
of the Substituted Property or Substituted Properties, then
being Released, determined by Lender as of the Closing Date;
(iii) after giving effect to the substitution, the Debt Service
Coverage Ratio for the Mortgaged Properties (including the
Substitute Properties but excluding the Substituted Properties)
shall be at least equal to the greater of (i) 2.052:1 and
(ii) the Debt Service Coverage Ratio for the Loan for all of
the Mortgaged Properties immediately preceding the substitution;
(iv) the Net Operating Income for any Substitute Property does not
show a downward trend over the three (3) years immediately prior
to the date of substitution or, with respect to a Substitute
Property for which information regarding the Net Operating
Income of such Substitute Property for the three (3) years
immediately
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prior to the date of substitution cannot be obtained by Borrower
after Borrower's exercise of diligent efforts, the Net Operating
Income shall not show a downward trend for such period of time
immediately prior to the date of substitution as may be
determined from the information regarding such Net Operating
Income available (which period of time, in any event, shall not
be less than one (1) year);
The Net Operating Income for a Substitute Property shall be
deemed to show a downward trend, if the Net Operating Income for
the Substitute Property for each Determination Period (as
defined below) was less than the Net Operating Income for the
immediately preceding Determination Period, commencing with
the Determination Period that commenced on the date that is
three (3) years prior to the first day of the calendar month
in which the substitution is to occur. A "Determination
Period" is a twelve (12) month period that commences on a
prior anniversary of the first day of the calendar month in
which the substitution is to occur and ends on the last day
of the calendar month (or prior anniversary thereof)
immediately preceding the month in which the substitution
is to occur;
(v) the Net Operating Income and Debt Service Coverage Ratio (for
the twelve (12) month period immediately preceding the
substitution) for the Substitute Property or Substituted
Properties, as applicable, is greater than one hundred
twenty-five percent (125%) of the Net Operating Income and
Debt Service Coverage Ratio (for the twelve (12) month period
immediately preceding the substitution) for the Substituted
Property or Substituted Properties then being substituted.
For purposes of this clause (v), the Debt Service Coverage
Ratio with respect to a Substitute Property (or Substitute
Properties, as applicable) or a Substituted Property (or
Substituted Properties, as applicable) shall be calculated
using the Net Operating Income with respect to such Substitute
Property (or Substitute Properties, as applicable) or
Substituted Property, (or Substituted Properties, as
applicable) and the principal, if any, and interest due and
payable on the Mortgage Note allocable to the Release Price for
the Substitute Property or Substituted Property, as applicable
(or the aggregate Release Prices for the Substitute Properties
or Substituted Properties, as applicable);
(vi) Lender shall have received a Rating Comfort Letter from each
Rating Agency with respect to the substitution;
(vii) no Default or Event of Default shall have occurred and be
continuing and Borrower shall be in compliance with all
terms and conditions set forth in this Agreement and in each
Loan Document on Borrower's part to be observed or
performed. Lender shall have received a certificate from
Borrower confirming the foregoing, stating that the
representations and warranties of Borrower contained in this
Agreement and the other Loan Documents are true and correct
in all material respects on and as if made on the date of
the substitution with respect to Borrower, the Mortgaged
Properties and each Substitute Property and containing any
other representations and warranties with respect to
Borrower, the Mortgaged Properties, each Substitute Property
and the Loan as the Rating Agencies may require, such
certificate to be in form and substance satisfactory to the
Rating Agencies;
65
(viii) Borrower shall have executed, acknowledged and delivered to
Lender (A) a Mortgage, an Assignment of Leases and Rents and
one or more UCC Financing Statements with respect to each
Substitute Property, together with a letter from Borrower
countersigned by the Title Company acknowledging receipt of
such Mortgage, Assignment of Leases and Rents and UCC-1
Financing Statements and agreeing to record or file, as
applicable, such Mortgage, Assignment of Leases and Rents
and, if applicable, one of the UCC-1 Financing Statements in
the real estate records for the county in which such
Substitute Property is located and agreeing to file one of
the UCC-1 Financing Statements in the office of the
Secretary of State of the State in which such Substitute
Property is located, so as to effectively create upon such
recording and filing valid and enforceable Liens upon such
Substitute Property, of the requisite priority, in favor of
Lender (or such other trustee as may be desired under local
law), subject only to Permitted Encumbrances and Permitted
Liens and (B) a Security Agreement and an Environmental
Indemnity Agreement with respect to such Substitute
Property. The Mortgage, Assignment of Leases and Rents,
UCC-1 Financing Statements, Security Agreement and
Environmental Indemnity Agreement shall be the same in form
and substance as the counterparts of such documents executed
and delivered on the Closing Date subject to modifications
reflecting such Substitute Property as a Mortgaged Property
that is the subject of such documents and such modifications
reflecting the laws of the state in which such Substitute
Property is located as shall be recommended by the counsel
admitted to practice in such state and delivering the
opinion as to the enforceability of such documents required
pursuant to clause (xv) below. Borrower shall also have
executed, acknowledged and delivered any amendments to the
Loan Documents required in connection with a substitution
and, where applicable, a letter from Borrower countersigned
by the Title Company agreeing to record such amendments in
the real estate records for each county where the Mortgage
was recorded. The Mortgage encumbering the Substitute
Property shall secure all amounts evidenced by the Mortgage
Note. The amount of the Loan allocated to the Substitute
Property or Substitute Properties (such amount being
hereinafter referred to as the "Substitute Release Amount")
shall equal the Allocated Loan Amount of the Substitute
Property or Substituted Properties then being Released (and,
if applicable, equitably allocated among the Substitute
Properties);
(ix) Lender shall have received (A) any "tie-in" or similar
endorsement to each Title Insurance Policy insuring the Lien
of the existing Mortgage as of the date of the substitution
available with respect to the Title Insurance Policy insuring
the Lien of the Mortgage with respect to each Substitute
Property and (B) a Title Insurance Policy (or a marked, signed
and redated commitment to issue such Title Insurance Policy)
insuring the Lien of the Mortgage encumbering each Substitute
Property, issued by the Title Company insuring the Lien of the
existing Mortgage and dated as of the date of the substitution,
with reinsurance and direct access agreements that replace such
agreements issued in connection with the Title Insurance Policy
insuring the Lien of the Mortgage encumbering the Substituted
Property. The Title Insurance Policy issued with respect to
each Substitute Property shall (1) provide coverage in the
amount of the Loan Amount of the "tie-in" or similar
endorsement described above, (2) insure Lender that the
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relevant Mortgage creates a valid first lien on the Substitute
Property encumbered thereby, free and clear of all exceptions
from coverage other than Permitted Encumbrances (as modified by
the terms of any endorsements), (3) contain such endorsements
and affirmative coverages as are contained in the Title
Insurance Policies insuring the Liens of the existing Mortgage,
and (4) name Lender as the insured. Lender also shall have
received copies of paid receipts showing that all premiums in
respect of such endorsements and Title Insurance Policies have
been paid;
(x) Lender shall have received a current title survey for each
Substitute Property, certified to the Title Company and Lender
and their successors and assigns, in the same form and having
the same content as the certification of the Survey of the
Substituted Property prepared by a professional land surveyor
licensed in the state in which the Substitute Property is
located and acceptable to the Rating Agencies in accordance
with the 1992 Minimum Standard Detail Requirements for
ALTA/ACSM Land Title Surveys. Such survey shall reflect the
same legal description contained in the Title Insurance Policy
relating to such Substitute Property and shall include, among
other things, a metes and bounds description of the real
property comprising part of such Substitute Property. The
surveyor's seal shall be affixed to each survey and each survey
shall certify that the surveyed property is not located in a
"one hundred year flood hazard area;"
(xi) Lender shall have received valid certificates of insurance
indicating that the requirements for the policies of insurance
required for an Mortgaged Property hereunder have been satisfied
with respect to the Substitute Property and evidence of the
payment of all premiums payable for the existing policy period;
(xii) Lender shall have received a Phase I environmental report
and, if recommended under the Phase I environmental report,
a Phase II environmental report (in each case prepared by an
environmental consultant acceptable to Lender), which
conclude that the Substitute Property does not contain any
Hazardous Materials (as defined in the Mortgage) and is not
subject to any risk of contamination from any off-site
Hazardous Materials;
(xiii) Borrower shall deliver or cause to be delivered to Lender
(A) updates certified by Borrower or the General Partner, as
applicable, of all organizational documentation related to
Borrower and the General Partner and/or the formation,
structure, existence, good standing and/or qualification to
do business delivered to Lender in connection with the
closing of the Loan; (B) good standing certificates,
certificates of qualification to do business in the
jurisdiction in which the Substitute Property is located (if
required in such jurisdiction) and (C) resolutions of the
General Partner authorizing the substitution and any actions
taken in connection with such substitution;
(xiv) Lender shall have received the following opinions of
Borrower's counsel: (A) an opinion or opinions of counsel
admitted to practice under the laws of the state in which
the Substitute Property is located stating that the Loan
Documents delivered with respect to the Substitute Property
pursuant to clause (viii) above are valid and enforceable in
accordance with their terms, subject to the laws
67
applicable to creditors' rights and equitable principles, and
that Borrower is qualified to do business and in good standing
under the laws of the jurisdiction where the Substitute Property
is located; (B) an opinion of counsel acceptable to the Rating
Agencies stating that the Loan Documents delivered with respect
to the Substitute Property pursuant to clause (viii) above were
duly authorized, executed and delivered by Borrower and that the
execution and delivery of such Loan Documents and the
performance by Borrower of its obligations thereunder will not
cause a breach of, or a default under, any agreement, document
or instrument to which Borrower is a party or to which it or
its properties are bound; (C) an opinion of counsel acceptable
to the Rating Agencies stating that subjecting the Substitute
Property to the Lien of the related Mortgage and the execution
and delivery of the related Loan Documents does not and will
not affect or impair the ability of Lender to enforce its
remedies under all of the Loan Documents or to realize the
benefits of the cross-collateralization provided for thereunder;
(D) an update of the Substantive Non-Consolidation Opinion
indicating that the substitution does not affect the opinions
set forth therein; (E) an opinion of counsel acceptable to
the Rating Agencies stating that the substitution and the
related transactions do not constitute a fraudulent conveyance
under applicable bankruptcy and insolvency laws or other
evidence pertaining thereto acceptable to the Rating Agencies
and (F) an opinion of counsel acceptable to the Rating Agencies
stating that the substitution would not adversely affect the
status of the entity holding the interest in the Mortgage Note
as a REMIC (assuming for such purpose that such entity
otherwise qualifies as a REMIC) and that such substitution
will not result in a deemed exchange of the Certificates
pursuant to Section 1001 of the Code;
(xv) all real estate taxes due and payable with respect to the
Substitute Property shall have been paid and Borrower shall have
delivered evidence thereof to Lender;
(xvi) Borrower shall have paid or reimbursed Lender for all costs
and expenses incurred by Lender (including, without
limitation, reasonable attorneys fees and disbursements) in
connection with the substitution and Borrower shall have
paid all recording charges, filing fees, taxes or other
expenses (including, without limitation, mortgage and
intangible taxes and documentary stamp taxes) payable in
connection with the substitution. Borrower shall have paid
all costs and expenses of the Rating Agencies incurred in
connection with the substitution;
(xvii) Lender shall have received annual operating statements and
occupancy statements for each Substitute Property for the
most recently completed Fiscal year and an operating
statement for each Substituted Property for all Accounting
Periods and Accounting Quarters for which such statements
have been prepared, each certified to Lender as being true
and correct and certificate from Borrower certifying that
there has been no adverse change in the financial condition
of such Substitute Property since the date of such operating
statements;
(xviii)Borrower shall have delivered to Lender estoppel
certificates from (i) each tenant of each Substitute
Property that accounted more than 5% of the gross rents from
the Substitute Property during the most recently completed
four full Accounting Quarters ("Major Tenants"), and (ii)
tenants of the Substitute
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Property that accounted, in the aggregate, for at least
seventy-five percent (75%) of the gross rents from the
Substitute Property for the most recently completed for
full accounting quarters. All such estoppel certificates
shall be in the form attached hereto as Exhibit D and
shall indicate that (1) the subject lease is a valid and
binding obligation of the tenant thereunder, (2) there
are no defaults under such lease on the part of the
landlord or tenant thereunder, (3) the tenant thereunder
has no defense or offset to the payment of rent under
such leases, (4) no rent under such lease has been paid
more than one (1) month in advance, (5) the tenant
thereunder has no option or right of first refusal under
such lease to purchase all or any portion of the
Substitute Property and (6) all tenant improvement work
required under such lease has been completed and the
tenant under such lease is in actual occupancy of its
leased premises. If an estoppel certificate indicates
that all tenant improvement work required under the
subject lease has not yet been completed, Borrower shall,
if required by the Rating Agencies, deliver to Lender
financial statements indicating that Borrower has
adequate funds to pay all costs related to such tenant
improvement work as required under such lease;
(xix) Lender shall have receive copies of all tenant leases and
any ground leases affecting the Substitute Property
certified by Borrower as being true and correct. Lender
shall have received a current rent roll of the Substitute
Property certified by Borrower as being true and correct;
(xx) Lender shall have received subordination, nondisturbance and
attornment agreements in the form attached hereto as EXHIBIT E
with respect to each of the Material Leases affecting the
Substitute Property other than such Leases that are, by their
terms, subordinate to the Mortgage with respect to the
Substitute Property;
(xxi) Lender shall have received (A) an endorsement to the Title
Insurance Policy insuring the Lien of the Mortgage
encumbering the Substitute Property insuring that the
Substitute Property constitutes a separate tax lot or, if
such an endorsement is not available in the state in which
the Substitute Property is located, a letter from the Title
Company issuing such Title Insurance Policy stating that the
Substitute Policy constitutes a separate tax lot or (B) a
letter from the appropriate taxing authority stating that
the Substitute Property constitutes a separate tax lot;
(xxii) Lender shall have received a physical conditions report
(substantially similar in form and scope to the physical
conditions report delivered with respect to the Substituted
Property in connection with the Closing) with respect to the
Substitute Property stating that the Substitute Property and
its use comply in all material respects with all applicable
Laws (including, without limitation, zoning, subdivision and
building laws) and that the Substitute Property is in good
condition and repair and free of material damage or waste.
If compliance with Laws is not addressed by the physical
conditions report, such compliance shall be confirmed by
delivery to Lender of a certificate of an architect licensed
in the state in which the Substitute Property is located, a
letter from the municipality in which such Property is
located, a certificate of a surveyor that is licensed in the
69
state in which the Substitute Property is located (with
respect to zoning and subdivision laws), an ALTA 3.1
zoning endorsement to the Title Insurance Policy
delivered pursuant to clause (ix) above (with respect to
zoning laws) or a subdivision endorsement to the Title
Insurance Policy delivered pursuant to clause (ix) above
(with respect to subdivision laws). If the physical
conditions report recommends that any repairs be made
with respect to the Substitute Property, such physical
conditions report shall include an estimate of the cost
of such recommended repairs and Borrower shall deposit
with Lender an amount equal to one hundred fifty percent
(150%) of such estimated cost, which deposit shall
constitute additional security for the Loan and shall be
released to Borrower upon the delivery to Lender of (A)
an update to such physical conditions report or a letter
from the engineer that prepared such physical conditions
report indicating that the recommended repairs were
completed in good and workmanlike manner and (B) paid
receipts indicating that the costs of all such repairs
have been paid;
(xxiii)Lender shall have received a certified copy of an amendment
to the Management Agreement reflecting the deletion of the
Substituted Property and the addition of the Substitute
Property as a property managed pursuant thereto and Manager
shall have executed and delivered to Lender an amendment to
the Collateral Assignment of Management Agreement reflecting
such amendment to the Management Agreement;
(xxiv) Lender shall have received such other and further approvals,
opinions, documents and information in connection with the
substitution as the Rating Agencies have requested;
(xxv) Lender shall have received copies of all contracts and
agreements relating to the leasing and operation of the
Substitute Property (other than the Management Agreement)
together with a certification of Borrower attached to each
such contract or agreement certifying that the attached
copy is a true and correct copy of such contract or
agreement and all amendments thereto;
(xxvi) Borrower shall submit to Lender, not less than thirty (30)
days prior to the date of such substitution, a release of
Lien (and related Loan Documents) for the Substituted
Property for execution by Lender. Such release shall be in
a form appropriate for the jurisdiction in which the
Substituted Property is located and satisfactory to Lender
in its sole discretion. Borrower shall deliver an Officer's
Certificate certifying that the requirements set forth in
this Section 11 have been satisfied.
Upon the satisfaction of the foregoing conditions precedent, Lender will release
its Lien from the Substituted Property or Substituted Properties, as applicable,
to be released and the Substitute Property or Substitute Properties, as
applicable, shall be deemed to be an Mortgaged Property for purposes of this
Agreement and the Allocated Loan Amount with respect to such Substituted
Property or Substituted Properties, as applicable, shall be deemed to be the
Allocated Loan Amount with respect to such Substitute Property(or the aggregate
Allocated Loan Amounts for such Substitute Properties, as applicable) for all
purposes hereunder (and, if there is more than one Substitute Properties, the
Allocated Loan Amounts for such Substitute Properties shall be equitably
determined).
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12. MISCELLANEOUS
12.1. LIMITATION ON LIABILITY
Notwithstanding any contrary provision in any of the Loan
Documents, it is hereby expressly agreed that, except as otherwise provided in
this SECTION 12.1 or in any Section of any Loan Document that is substantially
similar to this SECTION 12.1, there shall be no recourse to the assets of
Borrower or either of its Partners (other than against the Collateral and any
other property given as security for the payment of the Mortgage Note) for (i)
the payment of principal, interest, Defeasance Deposits, Yield Maintenance
Payments or other charges under this Agreement or the Mortgage Note or for any
other amount that is or may become due and owing to Lender by Borrower under
this Agreement or any of the other Loan Documents or (ii) the performance or
discharge of any covenant or undertaking hereunder or under the other Loan
Documents, and in the event of any Event of Default hereunder or thereunder,
Lender agrees to proceed solely against the Collateral and any other property
given as security for payment of the Mortgage Note, and Lender shall not seek or
claim recourse against Borrower or the General Partner (other than against the
Collateral and any other property given as security for payment of the Mortgage
Note) for any deficiency or for any personal judgment after a foreclosure of the
lien of the Mortgage or other Security Documents or for the performance or
discharge of any covenants or undertakings of Borrower hereunder or under any of
the other Loan Documents (except that Borrower may be made a party to a
proceeding to the extent legally necessary for the conduct of a foreclosure or
the exercise of other similar remedies under the Mortgages or other Security
Documents). Notwithstanding the foregoing, nothing contained in this
SECTION 12.1 shall relieve Borrower or the General Partner of any personal
liability for any loss, cost, expense, damage or liability arising or
resulting from (A) any breach of any representation or warranty made in this
Agreement that was materially incorrect when made and that was made with
fraudulent intent, (B) any amount paid or distributed to the General Partner,
Arden OP, the Manager or any Affiliate of any of them in violation of the
provisions of the Loan Documents, (C) fraud or breach of trust, including
misapplication of Loan proceeds or any Insurance Proceeds or Awards or other
sums that are part of the Collateral that may come into the possession or
control of Borrower or the General Partner or any Affiliate of any of them,
(D) liability of such Person under the Environmental Indemnity Agreement or
(E) following the occurrence of a Lockbox Event, the willful failure of
Borrower to instruct tenants of the Mortgaged Properties to make payments of
Rents into the Lockbox Account or the failure of Borrower or Manager to
deposit payments of Rents received by Borrower or Manager into the Lockbox
Account promptly upon receipt thereof. It is hereby expressly agreed that
neither the General Partner nor any director, officer, shareholder, partner
or employee of Borrower or the General Partner, nor the legal or personal
representative, successor or assign of any of the foregoing, nor any other
principal of Borrower or the General Partner, whether disclosed or undisclosed,
shall have any personal liability under this Agreement or any of the other
Loan Documents, except as personal liability may be specifically imposed upon
the General Partner in accordance with clauses (A), (B), (C), (D) and (E) of
this Section 12.1, and in no event shall any limited partner of Borrower have
any liability whatsoever with respect to the Loan or any monetary obligations
with respect thereto, or any of the matters described in clause (A), (B), (C),
(D) or (E) above. It is the intention of the parties hereto that this
SECTION 12.1 shall govern every other provision of the Loan Documents and that
the absence of explicit reference to this SECTION 12.1 in any provision of the
Loan Documents or the absence of any Section similar to this SECTION 12.1 in any
Loan Document shall not be construed to deny the application of this
SECTION 12.1 to such provision, notwithstanding the presence of explicit
reference to this SECTION 12.1 in other provisions of the Loan Documents.
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12.2. ENTIRE AGREEMENT, AMENDMENTS
This Agreement, including the Schedules and Exhibits hereto and
the other instruments and documents referred to herein or delivered pursuant
hereto, contains the entire agreement among the parties with respect to the
subject matter hereof and supersedes all prior oral or written agreements,
commitments or understandings with respect to such matters. No amendment,
modification or discharge of this Agreement shall be valid or binding unless set
forth in writing and duly executed by both parties.
12.3. NOTICES
All notices, requests and demands to or upon the respective
parties hereto shall be in writing (except as is otherwise specifically provided
in this Agreement) and shall be deemed to have been duly given or made when
received (or when delivery thereof is refused by the intended recipient) if
mailed by first-class registered or certified mail, return receipt requested,
postage prepaid, or sent by facsimile transmission, with confirmation of receipt
or delivery, or sent by nationally recognized overnight courier, delivery
charges prepaid or delivered by hand, in each case addressed or directed as
follows (or to such other address or facsimile transmission number as may be
hereafter designated in writing by the respective parties hereto):
IF TO BORROWER: Arden Realty Finance Partnership, L.P.
0000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxx 000-X
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Fax: (000) 000-0000
IF TO LENDER: Xxxxxx Brothers Realty Corporation
Three World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Commercial Mortgage Loan
Surveillance
Fax: (000) 000-0000
12.4. NO WAIVER; CUMULATIVE REMEDIES
No delay or failure on the part of any party hereto in exercising
any right, power or privilege under this Agreement or under any other instrument
or document given in connection with or pursuant to this Agreement shall impair
any such right, power or privilege or be construed as a waiver of any default or
any acquiescence therein. No single or partial exercise of any such right,
power or privilege shall preclude the further exercise of such right, power or
privilege, or the exercise of any other right, power or privilege. No waiver
shall be valid against any party hereto unless made in writing and signed by the
party against whom enforcement of such waiver is sought and then only to the
extent expressly specified therein. The rights and remedies herein provided are
cumulative and not exclusive of any rights or remedies provided by law.
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12.5. WAIVER OF JURY TRIAL
Each of the parties hereto (i) covenants and agrees not to elect
trial by jury of any issue triable of right by a jury and (ii) waives any rights
to trial by jury to the full extent that any such right shall now or hereafter
exist. This waiver of right to trial by jury is separately given, knowingly and
voluntarily, by each party hereto, and this waiver is intended to encompass
individually each instance and each issue as to which the right to a jury trial
would otherwise accrue. The parties are hereby authorized to submit this
Agreement to any court having jurisdiction over the subject matter so as to
serve as conclusive evidence of the other party's herein contained waiver of the
right to jury trial. Further, each party hereto certifies that no
representative of the other party (including such other party's counsel) has
represented, expressly or otherwise, to that party, that the other party will
not seek to enforce this waiver by the such certifying party of the right to a
jury trial.
12.6. GOVERNING LAW; CONSENT TO JURISDICTION
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York (but not including the choice of law
rules thereof). In the event of any litigation arising out of this Loan
Agreement, Borrower agrees that the substantive law of the State of New York
shall apply. Borrower hereby consents to jurisdiction within the State of New
York for purposes of such litigation and agrees that service of process may be
made, and personal jurisdiction over Borrower obtained, by serving a copy of the
summons and complaint upon Borrower, at the notice address set forth herein, in
accordance with the applicable laws of the State of New York. Nothing herein
contained, however, shall prevent any owner or holder of the Mortgage Note from
bringing any action or exercising any right against any security or against
Borrower, personally, or against any property of Borrower, within any other
jurisdiction or state. Initiating such proceeding or taking such action in any
other jurisdiction or state shall not, however, constitute a waiver of the
agreement contained herein that the laws of the State of New York shall govern
the rights and obligations of the parties hereunder.
12.7. PAYMENT OF EXPENSES
12.7.1.
Borrower shall pay all expenses incurred by Lender in connection
with this Agreement and in the preparation for, and consummation of, the
transactions provided for herein and in connection with the enforcement hereof,
and Borrower shall pay all costs of conveyances, initial Servicer fee and
Trustee fee, initial rating fees and ongoing activity of any special Servicer
incurred as a result of an Event of Default, bank charges relating to the
operation of the Operating Account, the Lockbox Account, the Cash Collateral
Account and any other Account, after the Securitization has occurred, its
proportionate share of initial and annual surveillance fees, if any, of the
Rating Agencies, any processing fees, reasonable attorney's fees and
disbursements, auditor's fees, costs of appraisals, environmental reports, and
engineering reports, all title insurance premiums, all notary fees, all filing
and application fees to any federal, state or local agencies, all sales, stamp,
documentary, transfer, and other taxes and fees applicable to the transactions
contemplated by this Agreement and the instruments and documents called for
hereunder and all other costs and charges incurred by the parties in connection
with such transactions. In addition, the Borrower shall reimburse Lender for
any expenses incurred by the Lender to the extent provided in SECTION 4.8
hereof.
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12.7.2.
Except as provided in SECTION 12.7.1, if the Securitization occurs,
the Servicer Fee (as defined in the Pooling and Servicing Agreement) and the
Trustee Fee (as defined in the Pooling and Servicing Agreement) and any other
amounts required to be paid to the Servicer or the Trustee under the Pooling and
Servicing Agreement in reimbursement of expenses of the Servicer or the Trustee
shall be paid by Lender or the Trust Fund (the "TRUST FUND") created under the
Pooling and Servicing Agreement.
12.8. Severability
In the event that any term or provision of this Agreement or of
any other Loan Document or the application thereof to any Person or circumstance
shall, to any extent, be held to be invalid or unenforceable, the remainder of
such term or provision or the application thereof to Persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each term and provision of this Agreement shall be valid
and shall be enforced to the fullest extent permitted by law.
12.9. Gender, Etc.
Whenever used herein and where the context so requires, the
singular shall include the plural, the plural shall include the singular, and
the use of the masculine, feminine or neuter gender shall include all genders;
and the word "including" shall mean "including, without limitation."
12.10. Headings
The Article, Section and Subsection headings of this Agreement
are for convenience of reference only, and shall not limit or otherwise affect
any of the terms hereof.
12.11. Counterparts; Facsimiles
This Agreement may be executed in separate counterparts, none of which need
contain the signatures of all parties, each of which shall be deemed to be an
original, and all of which taken together shall constitute one and the same
instrument. It shall not be necessary in making proof of this Agreement to
produce or account for more than the number of counterparts containing the
respective signatures of, or on behalf of, all of the parties hereto. In the
event the parties hereto exchange signature pages of this Agreement by
facsimile, they agree to send the original executed counterparts of this
Agreement to one another by overnight delivery service, but the facsimile
signatures shall in any event be binding.
12.12. No Third Party Beneficiary
The parties do not intend the benefits of this Agreement to inure
to any third party other than the Trust (and the Servicer and Trustee on behalf
of the Trust), upon assignment hereof by Lender to the Trustee, on behalf of the
Trust, as contemplated by SECTION 9.1 hereof. Notwithstanding anything
contained herein or in the Mortgage Note or any other Loan Document to the
contrary, or any conduct or course of conduct by any or all of the parties
hereto, before or after signing this Agreement or any of the
74
other Loan Documents, nothing herein shall be construed as creating any right,
claim or cause of action against Lender, or any of Lender's officers, directors,
agents or employees, in favor of any materialman, supplier, contractor,
subcontractor, purchaser or lessee of any property owned by Borrower any other
person or entity other than Borrower.
12.13. No Liability of Lender
The relationship between Borrower and Lender is, and shall at all
times remain, solely that of borrower and lender, and Lender will not undertake
or assume any responsibility or duty to Borrower to review, inspect, supervise,
pass judgment upon, or inform Borrower of any matter in connection with any
phase of Borrower's business, operations, or condition, financial or otherwise.
Borrower shall rely entirely upon its own judgment with respect to such matters,
and any review, inspection, supervision, exercise of judgment, or information
supplied to Borrower by Lender in connection with any such matter is for the
protection of Lender, and neither Borrower nor any third party is entitled to
rely thereon.
12.14. Confidentiality
Lender agrees that it shall maintain confidentiality with regard
to nonpublic information concerning Borrower obtained from Borrower pursuant to
this Agreement that is identified by Borrower as nonpublic, provided that Lender
shall not be precluded from making disclosure regarding such information: (i)
to Lender's counsel, accountants and other professional advisors (who are, in
each case, subject to this confidentiality agreement), (ii) to officers,
directors, employees, agents and partners of Lender who typically would be
provided with such information (who are, in each case, subject to this
confidentiality agreement), (iii) in response to a subpoena or order of a court
or governmental agency, (iv) in connection with the Securitization, to the
Rating Agencies, the Trustee and the Servicer, provided, Lender shall require
that any such entity be subject to this SECTION 12.14, however, Lender shall
have no duty to monitor any such entity and shall have no liability in the event
that any such entity violates this SECTION 12.14, (v) as required by law, GAAP
or applicable regulation, or (vi) following the public disclosure of such
information (other than by Lender). In connection with enforcing its rights
pursuant to this SECTION 12.14, Borrower shall be entitled to the equitable
remedies of specific performance and injunctive relief against Lender or other
entity subject to this Section 12.14 which shall breach the confidentiality
provisions of this Section 12.14.
[SIGNATURE PAGE TO FOLLOW]
75
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
have caused this Agreement to be executed on their behalf as of the day and year
first above written.
BORROWER:
ARDEN REALTY FINANCE PARTNERSHIP, L.P.
By: Arden Realty Finance, Inc.
General Partner
By: /s/ Xxxxx X. Xxxxx
--------------------------
Its: Chief Financial Officer
-------------------------
LENDER:
XXXXXX BROTHERS REALTY CORPORATION
By: /s/ [ILLEGIBLE]
-------------------------------
Its: Authorized Signatory
------------------------------
JOINDER BY GENERAL PARTNER
IN SEPARATENESS COVENANTS
As an inducement to the Lender named in the foregoing Loan Agreement
to make the loan contemplated therein Arden Realty Finance, Inc., a California
corporation and the general partner of Arden Realty Finance Partnership L.P.,
hereby agrees to comply with the requirements of SECTIONS 5.10, 5.12, 6.1, 6.3,
6.4, and 6.5 of the Loan Agreement and agrees, following the assignment of the
Loan Agreement by the Lender named therein to the Trustee named therein, such
Trustee will be entitled to enforce the obligations of the undersigned under
such SECTIONS 5.10, 5.12, 6.1, 6.3, 6.4, and 6.5 of the Loan Agreement.
IN WITNESS WHEREOF, the undersigned has caused this instrument to be
executed by its duly authorized officer.
Dated: June 11, 1997 ARDEN REALTY FINANCE, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
Schedule A to
Loan Agreement
Allocated Loan Amounts
----------------------
1. 000 Xxxx Xxxxxxxx,
Xxxx Xxxxx XX $15,120,231
2. 00000 Xxxxx Xxxxxx Xxxxxxxxx,
Xxx Xxxxxxx, XX $2,280,398
3. 000 Xxxxxxxx Xxxxxxxxx,
Xxxxxxx, XX $13,103,726
4. 000 Xxxxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, XX $15,582,711
5. 000 Xxxx Xxxxxxxx,
Xxxxxxxx, XX $4,733,575
6. 0000 Xxxxx Xxxxxx,
Xxxxxxxxxx Xxxxx, XX $2,674,631
7. 0000 Xxxxxxxx (xxx Xxx Xxxxxxxx),
Xxx Xxxxxxx, XX $11,566,547
8. 00 Xxxxx Xxxx Xxxxxx,
Xxxxxxxx, XX $6,676,585
9. Xxxxxxx Atrium,
000 X. Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX $5,267,874
10. Bristol Plaza,
0000 Xxxxxxx Xxxxxxx
Xxxxxx Xxxx, XX $4,082,066
11. Burbank Executive Plaza
(000 Xxxx Xxxx Xxxxxxxxx and
000 Xxxxxxxx Xxxxxxxxx),
Xxxxxxx, XX $8,375,844
12. L.A. Corporate Center
(900, 1000, 1200 and
0000 Xxxxxxxxx Xxxxxx Xxxxx),
Xxxxxxxx Xxxx, XX $21,042,910
13. 00000 Xxxx Xxxxxxxx Xxxxxxx,
Xxxxxxx, XX $7,186,370
14. Skyview Center,
0000 X. Xxxxxxx Xxxxxxxxx,
0000 X. 00xx Xxxxxx,
xxxxxxx xxx
Xxx Xxxxxxx, XX $27,603,591
15. 0000 Xxxxxxx Xxxxxx Xxxxxxxxx,
Xxxxxxxx Xxxxxxx, XX $6,255,312
16. Woodland Hills Financial Center
(21021 and 00000 Xxxxxxx Xxxxxxxxx)
Xxxxxxxx Xxxxx, XX $14,563,963
17. 000 Xxxxx Xxxxxx Xxxxxxxxx,
Xxxxxxx, XX $8,913,666
------------
$175,000,000
SCHEDULE B
A LEASEHOLD ESTATE CREATED BY THAT CERTAIN UNRECORDED LEASE DATED FEBRUARY 21,
1992, EXECUTED BY ANAHEIM REDEVELOPMENT AGENCY, A PUBLIC BODY, CORPORATE AND
POLITIC, AS LESSOR, AND FIRST INTERSTATE MORTGAGE COMPANY, A CALIFORNIA
CORPORATION, AS LESSEE, FOR THE TERM, AND UPON THE TERMS, COVENANTS AND
CONDITIONS PROVIDED THEREIN, AS DISCLOSED BY A MEMORANDUM OF LEASE RECORDED
NOVEMBER 22, 1994 AS INSTRUMENT NO. 00-0000000 OF OFFICIAL RECORDS, AS TO PARCEL
B.
SAID LEASE WAS AMENDED BY FIRST AMENDMENT DATED NOVEMBER 15, 1994, AS
DISCLOSED BY SAID MEMORANDUM OF LEASE.
THE LESSEE'S INTEREST UNDER SAID LEASE HAS BEEN ASSIGNED TO 222 HARBOR
ASSOCIATES, LLC., A NEVADA LIMITED LIABILITY COMPANY BY ASSIGNMENT WHICH
RECORDED NOVEMBER 22, 1994 AS INSTRUMENT NO. 94-675689 OF OFFICIAL RECORDS,
REFERENCE BEING HEREBY MADE TO THE RECORD THEREOF FOR FULL PARTICULARS.
THE INTEREST OF 222 HARBOR ASSOCIATES, LLC., A NEVADA LIMITED LIABILITY
COMPANY HAS SINCE PASSED TO ARDEN REALTY LIMITED PARTNERSHIP, A MARYLAND LIMITED
PARTNERSHIP BY ARTICLES OF MERGER WHICH RECORDED OCTOBER 11, 1996 AS INSTRUMENT
NO. 19960520238.
THE INTEREST OF LESSEE UNDER SAID LEASE HAS BEEN FURTHER ASSIGNED TO ARDEN
REALTY FINANCE PARTNERSHIP, L.P., A CALIFORNIA LIMITED PARTNERSHIP, BY THAT
CERTAIN ASSIGNMENT AND ASSUMPTION OF LEASE RECORDED ON OR ABOUT JUNE 12, 1997.
Anaheim City Centre, Anaheim PAGE 29 OF 30
SCHEDULE C TO LOAN AGREEMENT
DESCRIPTION OF LAND
See C-1 through C-17
attached hereto
EXHIBIT C-1
LEGAL DESCRIPTION
PARCEL 1:
PARCELS 0 XXX 0 XX XXXXXX XXX XX. 00000, XX THE CITY OF LONG BEACH, AS PER MAP
FILED IN BOOK 181 PAGES 58 AND 59 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPT ALL OIL, HYDROCARBON SUBSTANCES AND MINERALS OF EVERY KIND AND CHARACTER
LYING MORE THAN 500 FEET BELOW THE SURFACE OF SAID LAND, TOGETHER WITH THE RIGHT
TO DRILL INTO, THROUGH AND TO USE AND OCCUPY ALL PARTS OF SAID LAND LYING MORE
THAN 500 FEET BELOW THE SURFACE THEREOF FOR ANY AND ALL PURPOSES INCIDENTAL TO
THE EXPLORATION FOR AND PRODUCTION OF OIL, GAS, HYDROCARBON SUBSTANCES OR
MINERALS FROM SAID LANDS, BUT WITHOUT, HOWEVER, THE RIGHT TO USE EITHER THE
SURFACE OF SAID LAND OR ANY PORTION OF SAID LAND WITHIN 500 FEET OF THE SURFACE
FOR ANY PURPOSE OR PURPOSES WHATSOEVER, AS PROVIDED IN DEED RECORDED OCTOBER 7,
1985 AS INSTRUMENT NO. 00-0000000, AND IN DEED RECORDED OCTOBER 23, 1985 AS
INSTRUMENT NO. 00-0000000.
PARCEL 2:
PARCEL 0 XX XXXXXX XXX XX. 00000, XX THE CITY OF LONG BEACH, AS PER MAP FILED IN
BOOK 181 PAGES 58 AND 59 OF PARCELS MAPS, IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY.
EXCEPT ALL CRUDE OIL, PETROLEUM, GAS, ASPHALTUM, AND ALL KINDRED SUBSTANCES AND
OTHER MINERALS UNDER AND IN SAID LAND A DEPTH BELOW 200 FEET FROM THE SURFACE OF
SAID LAND, PROVIDED GRANTORS SHALL HAVE NO RIGHT OF ENTRY UPON
000 Xxxx Xxxxxxxx, Xxxx Xxxxx PAGE 1 OF 30
THE SURFACE OF SAID LAND OR IN, OR TO SAID LAND TO A DEPTH OF 200 FEET FROM THE
SURFACE THEREOF, AS RESERVED BY XXXXXX X. XXXXXXX AND XXXX XXXXXXX, HUSBAND AND
WIFE, AND XXXXXXX X. XXXXXX AND XXXXXX X. XXXXXX, HUSBAND AND WIFE, IN DEED
RECORDED MAY 23, 1974 AS DOCUMENT NO. 216 IN BOOK D6281 PAGE 820, OFFICIAL
RECORDS.
ALSO EXCEPT ALL MINERALS, GAS, OIL, PETROLEUM, NAPHTHA AND OTHER HYDROCARBON
SUBSTANCES IN AND UNDER SAID LAND, WITHOUT THE RIGHT OF SURFACE ENTRY, AS
EXCEPTED AND RESERVED BY XXXXXXX XXXXXX, WIDOW, IN DEED RECORDED AUGUST 22, 1949
AS INSTRUMENT NO. 308 IN BOOK D4474 PAGE 618, OFFICIAL RECORDS.
ALSO EXCEPT ALL MINERALS, GAS, OIL, PETROLEUM, NAPHTHA AND OTHER HYDROCARBON
SUBSTANCES IN AND UNDER SAID LAND, WITHOUT THE RIGHT OF SURFACE ENTRY, AS
EXCEPTED AND RESERVED BY XXXXX X. XXXX, IN DEED RECORDED NOVEMBER 10, 1969 AS
INSTRUMENT NO. 24 IN BOOK D4550 PAGE 244, OFFICIAL RECORDS.
ALSO EXCEPT ALL OIL, GAS AND OTHER HYDROCARBON SUBSTANCES IN AND UNDER OR THAT
MAY BE PRODUCED FROM A DEPTH BELOW 200 FEET OF THE SURFACE OF SAID LAND, BUT
WITHOUT RIGHT OF ENTRY UPON THE SURFACE OF SAID LAND, FOR THE PURPOSE OF MINING,
DRILLING, EXPLORING, OR EXTRACTING SUCH OIL, GAS, MINERALS AND OTHER HYDROCARBON
SUBSTANCES, AS RESERVED BY XXXXXXX X. XXXXXXXX, A MARRIED WOMAN, WHO ACQUIRED
TITLE AS XXXXXXX X. XXXXXXX, IN DEED RECORDED NOVEMBER 12, 1969 AS INSTRUMENT
NO. 249 IN BOOK D4551 PAGE 553, OFFICIAL RECORDS.
ALSO EXCEPT ALL OIL, GAS AND OTHER HYDROCARBON SUBSTANCES IN AND THAT MAY BE
PRODUCED FROM A DEPTH BELOW 200 FEET OF THE SURFACE OF SAID LAND, BUT WITHOUT
RIGHT OF ENTRY UPON THE SURFACE OF SAID LAND, FOR THE PURPOSE OF MINING,
DRILLING, EXPLORING, OR EXTRACTING SUCH OIL, GAS, MINERALS AND OTHER
HYDROCARBON SUBSTANCES, AS EXCEPTED BY BUFFUMS', A CORPORATION, IN DEED
RECORDED NOVEMBER 12, 1969 AS INSTRUMENT NO. 251 IN BOOK D4551 PAGE 555,
OFFICIAL RECORDS.
ALSO EXCEPT ALL OIL, GAS, AND OTHER HYDROCARBON SUBSTANCES IN AND UNDER OR THAT
MAY BE PRODUCED FROM A DEPTH BELOW 200 FEET OF THE SURFACE, BUT WITHOUT RIGHT OF
SURFACE ENTRY, FOR THE PURPOSE OF MINING, DRILLING, EXPLORING, OR EXTRACTING
SUCH OIL, GAS, MINERALS AND OTHER HYDROCARBON SUBSTANCES, AS RESERVED BY JOY
XXXXXXX XXXXX, IN DEED RECORDED DECEMBER 18, 1969 AS INSTRUMENT NO. 62 IN BOOK
D4585 PAGE 279, OFFICIAL RECORDS.
ALSO EXCEPT ALL OIL, GAS AND OTHER HYDROCARBON SUBSTANCES IN AND UNDER OR THAT
MAY BE PRODUCED FROM A DEPTH BELOW 200 FEET OF THE SURFACE, BUT WITHOUT RIGHT OF
SURFACE ENTRY, FOR THE PURPOSE OF MINING, DRILLING, EXPLORING, OR EXTRACTING
SUCH OIL, GAS, MINERALS AND OTHER HYDROCARBON SUBSTANCES, AS RESERVED BY
XXXXXXXX XXXXXX, ALSO KNOWN AS XXXXXXXX BLEINE XXXXX, IN DEED RECORDED DECEMBER
18, 1969 AS INSTRUMENT NO. 53 IN BOOK D4585 PAGE 280, OFFICIAL RECORDS.
000 Xxxx Xxxxxxxx, Xxxx Xxxxx
PAGE 2 OF 30
ALSO EXCEPT ALL OIL, GAS AND OTHER HYDROCARBON SUBSTANCES IN AND UNDER OR THAT
MAY BE PRODUCED FROM A DEPTH BELOW 200 FEET OF THE SURFACE OF SAID LAND, BUT
WITHOUT RIGHT OF ENTRY UPON THE SURFACE OF SAID LAND, FOR THE PURPOSE OF MINING,
DRILLING, EXPLORING, OR EXTRACTING SUCH OIL, GAS, MINERALS AND OTHER HYDROCARBON
SUBSTANCES, AS RESERVED BY XXXXXX X. XXXXX AND XXXXX X. XXXXX, HUSBAND AND WIFE,
IN DEED RECORDED NOVEMBER 12, 1969 AS INSTRUMENT NO. 250 IN BOOK D4551 PAGE 554,
OFFICIAL RECORDS.
000 Xxxx Xxxxxxxx, Xxxx Xxxxx
PAGE 3 OF 30
EXHIBIT C-2
LEGAL DESCRIPTION
XXXX 0 XX 00 XXXXXXXXX XX XXXXX 00 XX XXXXX 0000, IN THE CITY OF LOS ANGELES, AS
PER MAP RECORDED IN BOOK 79 PAGES 98 AND 99 OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
PAGE 4 OF 30
EXHIBIT C-3
LEGAL DESCRIPTION
XXXX 0 XX 0 XXXXXXXXX XX XXXXX 00000, IN THE CITY OF BURBANK, AS PER MAP
RECORDED IN BOOK 1029 PAGES 49 TO 51 INCLUSIVE OF MAPS, BEING A SUBDIVISION OF A
PORTION OF LOT 1 AND ALL OF XXXX 0, 0, 0, 0, 00, 00 XXX 00, XXXXX 48, TOWN OF
BURBANK, AS SHOWN ON MAP RECORDED IN BOOK 17 PAGES 19 TO 22 INCLUSIVE OF
MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT FROM THAT PORTION OF SAID LAND, INCLUDED WITHIN THE LINES OF LOT 5, BLOCK
48, AS SHOWN ON THE MAP OF THE TOWN OF BURBANK, RECORDED IN BOOK 17 PAGE 19 OF
MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, ALL
MINERALS, OILS, GAS, WATER, CARBONS AND HYDROCARBONS IN AND UNDER SAID LAND
LYING BELOW A DEPTH OF 500 FEET FROM THE SURFACE OF SAID LAND, AS RESERVED BY
XXX XXXXXXXX, A WIDOWER, IN DEED RECORDED SEPTEMBER 22, 1964 AS INSTRUMENT NO.
792, IN BOOK D2635 PAGE 492, OFFICIAL RECORDS.
303 Glenoaks, Burbank
PAGE 5 OF 30
EXHIBIT C-4
LEGAL DESCRIPTION
PARCEL 1:
XXXX 00 XXX 00 XX XXXXX 00000, XX THE CITY OF XXXXXX CITY, AS PER MAP RECORDED
IN BOOK 1020 PAGES 31 TO 35 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPT ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS, NATURAL
GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN THAT MAY BE
WITHIN OR UNDER SAID LAND, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING,
MINING, EXPLORING AND OPERATING THEREFOR AND REMOVING THE SAME FROM SAID LAND
OR ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL
AND MINE FROM LANDS OTHER THAN SAID LAND, OIL OR GAS XXXXX, TUNNELS AND
SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF SAID LAND, AND TO BOTTOM
SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED XXXXX, TUNNELS AND SHAFTS UNDER AND
BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL,
EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH XXXXX OR MINES, WITHOUT,
HOWEVER, THE RIGHT TO DRILL, MINE, EXPLORE AND OPERATE THROUGH THE SURFACE OR
THE UPPER 100 FEET OF THE SUBSURFACE OF SAID LAND OR OTHERWISE IN SUCH MANNER
AS TO ENDANGER THE SAFETY OF ANY HIGHWAY THAT MAY BE CONSTRUCTED ON SAID
LANDS, AS EXCEPTED BY HOME SAVINGS AND LOAN ASSOCIATION, IN DEED RECORDED JULY
15, 1971 AS INSTRUMENT NO. 3551, IN BOOK D5125 PAGE 491, OFFICIAL RECORDS.
000 Xxxxxxxxx Xxxxxx, Xxxxxx Xxxx
PAGE 6 OF 30
ALSO EXCEPT ALL OIL, GAS, HYDROCARBON SUBSTANCES AND MINERALS OF EVERY KIND
AND CHARACTER LYING MORE THAN 500 FEET BELOW THE SURFACE OF SAID LAND,
TOGETHER WITH THE RIGHT TO DRILL INTO, THROUGH, AND TO USE AND OCCUPY ALL
PARTS OF SAID LAND LYING MORE THAN 500 FEET BELOW THE SURFACE THEREOF FOR ANY
AND ALL PURPOSES INCIDENTAL TO THE EXPLORATION FOR THE PRODUCTION OF OIL, GAS,
HYDROCARBON SUBSTANCES, OR MINERALS FROM SAID LAND OR OTHER LAND, BUT
WITHOUT, HOWEVER, ANY RIGHT TO USE EITHER THE SURFACE OF SAID LAND OR ANY
PORTION OF SAID LAND WITHIN 500 FEET OF THE SURFACE FOR ANY PURPOSE OR
PURPOSES WHATSOEVER, AS RESERVED BY THE XXXXXX CITY REDEVELOPMENT AGENCY, A
PUBLIC BODY CORPORATE AND POLITIC, IN DEED RECORDED DECEMBER 23, 1981 AS
INSTRUMENT NO. 00-0000000.
ALSO EXCEPT ALL OIL, GAS, HYDROCARBON SUBSTANCES AND MINERALS OF EVERY KIND AND
CHARACTER, LYING MORE THAN 500 FEET BELOW THE SURFACE OF SAID LAND, TOGETHER
WITH THE RIGHT TO DRILL INTO, THROUGH AND TO USE AND OCCUPY ALL PARTS OF SAID
LAND LYING MORE THAN 500 FEET BELOW THE SURFACE THEREOF FOR ANY AND ALL PURPOSES
INCIDENTAL TO EXPLORATION FOR THE PRODUCTION OF OIL, GAS, HYDROCARBON SUBSTANCES
OR MINERALS FROM SAID LAND OR OTHER LANDS, BUT WITHOUT, HOWEVER, ANY RIGHT TO
USE THE SURFACE OF SAID LAND OR ANY PORTION OF SAID LAND WITHIN 500 FEET OF THE
SURFACE FOR ANY PURPOSES WHATSOEVER, AS EXCEPTED BY THE CITY OF XXXXXX CITY, A
MUNICIPAL CORPORATION, IN DEED RECORDED MAY 16, 1983 AS INSTRUMENT NO.
83-542812, AND BY XXXXXX CITY REDEVELOPMENT AGENCY, A PUBLIC BODY CORPORATE AND
POLITIC IN DEED RECORDED MAY 16, 1983 AS INSTRUMENT NO. 83-542813.
PARCEL 2:
A NON-EXCLUSIVE EASEMENT IN, OVER, UNDER AND ACROSS ALL XXXX 0 XXX 0 XX XXXXX
00000, XX THE CITY OF XXXXXX CITY, AS PER MAP RECORDED IN BOOK 1020 PAGES 31 TO
35 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, FOR
PEDESTRIAN AND VEHICULAR INGRESS AND EGRESS BETWEEN XXXXXX AVENUE AND XXX 00 XX
XXXX XXXXX 00000; AS SUCH EASEMENT IS DESCRIBED IN THAT CERTAIN DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS AND CREATION OF EASEMENTS RECORDED ON
AUGUST 15, 1986 AS INSTRUMENT NO. 00-0000000, AS AMENDED BY THAT CERTAIN
FIRST AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND
CREATION OF EASEMENTS RECORDED SEPTEMBER 19, 1988 AS INSTRUMENT NO. 00-0000000,
AND AS TO SAID LOT 9, AS FURTHER AMENDED BY THAT CERTAIN AGREEMENT OF
CLARIFICATION OF LOCATION OF DRIVEWAY EASEMENT RECORDED FEBRUARY 14, 1996 AS
INSTRUMENT NO. 96-259845.
PARCEL 3:
A NON-EXCLUSIVE EASEMENT, IN, OVER AND ACROSS THAT PORTION OF A DRIVEWAY LOCATED
WITHIN XXX 00 XX XXXX XXXXX 00000 FOR THE PURPOSE OF VEHICULAR AND PEDESTRIAN
INGRESS TO AND EGRESS FROM XXXX 00 XXX 00 XX XXXX XXXXX 00000, TOGETHER WITH AN
EASEMENT IN, OVER, UNDER ACROSS AND THROUGH SAID PORTION OF SAID DRIVEWAY FOR
THE PURPOSE OF THE INSTALLATION, MAINTENANCE, USE AND REPAIR OF CERTAIN
UTILITIES SERVICING SAID DRIVEWAY AND THE IMPROVEMENTS THEREON, AS EACH SUCH
EASEMENT IS DESCRIBED IN INSTRUMENT NO. 00-0000000, RECORDED DECEMBER 29, 1983.
000 Xxxx Xxxxxxxx, Xxxxxxxx
PAGE 7 OF 30
EXHIBIT C-5
LEGAL DESCRIPTION
LOTS 24 TO 29 INCLUSIVE OF TRACT 752, IN THE CITY OF GLENDALE, AS PER MAP
RECORDED IN BOOK 16 PAGE 84 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY.
000 Xxxx Xxxxxxxx, Xxxxxxxx
PAGE 8 OF 30
EXHIBIT C-6
LEGAL DESCRIPTION
PARCEL A:
PARCEL 1, AS SHOWN ON EXHIBIT "B" OF THAT CERTAIN "APPLICATION FOR LOT LINE
ADJUSTMENT NO. 86-1" RECORDED JUNE 2, 1986 AS INSTRUMENT NO. 86-227750 OF
OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
EXCEPT FROM THAT PORTION OF SAID LAND INCLUDED WITHIN THE EASTERLY 450.00 FEET,
MEASURED ALONG THE NORTHERLY LINE OF SECTION 16, TOWNSHIP 5 SOUTH, RANGE 11
WEST, IN THE RANCHO LA BOLSA CHICA, AND AT A RIGHT ANGLE THERETO, AN UNDIVIDED
ONE-HALF INTEREST IN ALL OIL, GAS AND OTHER MINERALS, WITH NO RIGHT OF SURFACE
ENTRY, AS RESERVED BY BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, AS
TRUSTEE, AND OTHERS, IN DEED RECORDED IN BOOK 10179, PAGE 164 OF OFFICIAL
RECORDS.
ALSO EXCEPTING THE REMAINING INTEREST IN ALL OIL, GAS AND OTHER MINERALS, WITH
NO RIGHT OF SURFACE ENTRY, IN THAT PORTION OF SAID LAND INCLUDED WITHIN THE
EASTERLY 450.00 FEET, MEASURED ALONG THE NORTHERLY LINE OF SAID SECTION 16 AND
AT A RIGHT ANGLE THERETO, AS RESERVED IN THE DEED FROM BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, AS SOLE SURVIVOR TRUSTEE OF THE XXXXXX X. XXXX
TRUST; BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, AS SUCCESSOR
TRUSTEE UNDER THE WILL OF XXXXXXX X. XXXX, DECEASED; XXXXXXX X. XXXX XXXXX,
INDIVIDUALLY; AND HUNTINGTON BEACH INDUSTRIAL PARK, A LIMITED PARTNERSHIP,
RECORDED IN BOOK 11661, PAGE 1800 OF OFFICIAL RECORDS.
ALSO EXCEPTING ALL REMAINING INTEREST IN ALL OIL, GAS AND OTHER MINERALS,
WITH NO RIGHT OF SURFACE ENTRY, AS RESERVED IN THE DEED FROM BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, AS SOLE SURVIVOR TRUSTEE OF THE
XXXXXX X. XXXX TRUST; BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
AS SUCCESSOR TRUSTEE UNDER THE WILL OF XXXXXXX X. XXXX, DECEASED; XXXXXXX X.
XXXX XXXXX, INDIVIDUALLY; AND HUNTINGTON BEACH INDUSTRIAL PARK, A LIMITED
PARTNERSHIP, RECORDED IN BOOK 11661, PAGE 1800 OF OFFICIAL RECORDS.
PARCEL B:
A NON-EXCLUSIVE EASEMENT FOR BOTH VEHICULAR AND PEDESTRIAN INGRESS AND EGRESS
AND OTHER PURPOSES, OVER THE LAND, AS DESCRIBED IN AND CREATED BY THAT CERTAIN
NON-EXCLUSIVE EASEMENT DATED JUNE 4, 1984 AND RECORDED JUNE 13, 1984 AS
INSTRUMENT NO. 84-244918 OF OFFICIAL RECORDS.
5832
Bolsa, Huntington Beach PAGE 9 OF 30
EXHIBIT C-7
LEGAL DESCRIPTION
XXXX 0, 0, 00 XXX 00 XX XXXXX 0000, IN THE CITY OF LOS ANGELES, AS PER MAP
RECORDED IN BOOK 59 PAGES 53 TO 57 INCLUSIVE OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
EXCEPT ALL GAS, OIL AND OTHER MINERAL RIGHTS LYING BELOW A DEPTH OF 500 FEET
FROM THE SURFACE OF SAID LAND, WITHOUT ANY SURFACE OR ENTRY RIGHTS WHATSOEVER,
AS RESERVED BY XXXXXXX XXXXXXX XXXXXX AND XXXX XXXX XXXXXX, HUSBAND AND WIFE,
AND XXXXXX X. XXXXXXX AND XXXXX XXXXXX XXXXXXX, TRUSTEES UNDER AGREEMENT DATED
NOVEMBER 20, 1975 BY XXXXXX XXXXXXX AND XXXXX XXXXXX XXXXXXX, IN THE DEED
RECORDED JUNE 1, 1977 AS INSTRUMENT NO. 77-573626.
6100 Wilshire, Los Angeles PAGE 10 OF 30
EXHIBIT C-8
LEGAL DESCRIPTION
PARCEL 1:
XXX 0 XXX XXX XXXXXXXXX 00 XXXX XX XXX 0 XX XXXXXX XXXXXX SUBDIVISION, IN THE
CITY OF PASADENA, AS PER MAP RECORDED IN BOOK 10 PAGE 86 OF MISCELLANEOUS
RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM THE WESTERLY 6 FEET FOR LAKE AVENUE.
ALSO EXCEPT THEREFROM THAT PORTION OF LOT 2 OF XXXXXX AND XXXXXX SUBDIVISION
INCLUDED IN GREEN STREET, AS SAME PRESENTLY EXISTS.
PARCEL 2:
THE SOUTH 34 FEET OF LOT 1 OF XXXXXX AND XXXXXX SUBDIVISION, IN THE CITY OF
PASADENA, AS PER MAP RECORDED IN BOOK 10 PAGE 100 OF MISCELLANEOUS RECORDS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM THE WEST 6 FEET THEREOF, CONVEYED TO IN XXX XXXX XX XXXXXXXX
XXX XXXXXX PURPOSES, BY DEED RECORDED IN BOOK 1164 PAGE 317 OF DEEDS.
PARCEL 3:
THE NORTH 38 FEET OF XXX 0 XXX XXX XXXXX 00 XXXX XX XXX 0 OF THE XXXXXX AND
XXXXXX SUBDIVISION, IN THE CITY OF PASADENA, AS PER MAP RECORDED IN BOOK 10 PAGE
100 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
EXCEPT THEREFROM THE WEST 6 FEET THEREOF, CONVEYED TO XXX XXXX XX XXXXXXXX, XXX
XXXXXX PURPOSES, BY DEED RECORDED IN BOOK 1164 PAGE 317 OF DEEDS.
PAGE 11 OF 30
EXHIBIT C-9
LEGAL DESCRIPTION
LOTS 2010, 2011, 2012, 2013 AND 2014 OF TRACT 6380, IN THE CITY OF XXXXXXX
HILLS, AS PER MAP RECORDED IN BOOK 69 PAGES 11 THROUGH 20 INCLUSIVE OF MAPS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM ALL MINERALS, OIL, GAS, PETROLEUM, OTHER HYDROCARBON SUBSTANCES
AND ALL UNDERGROUND WATER IN OR UNDER OR WHICH MAY BE PRODUCED FROM THE LAND
DESCRIBED BELOW WHICH UNDERLIES A PLANE PARALLEL TO AND 500 FEET BELOW THE
PRESENT SURFACE OF SAID LAND FOR THE PURPOSE OF PROSPECTING FOR, OR THE
EXPLORATION, DEVELOPMENT, PRODUCTION, EXTRACTION AND TAKING OF SAID MINERALS,
OIL, GAS, PETROLEUM, OTHER HYDROCARBON SUBSTANCES AND WATER FROM SAID LAND BY
MEANS OF MINES, WELLS, DERRICKS, AND/OR OTHER EQUIPMENT FROM SURFACE LOCATIONS
ON ADJOINING OR NEIGHBORING LAND OR LYING OUTSIDE OF THE ABOVE DESCRIBED LAND,
IT BEING UNDERSTOOD THAT THE OWNER OF SUCH MINERALS, OIL, GAS, PETROLEUM, OTHER
HYDROCARBON SUBSTANCES AND WATER, AS SET FORTH ABOVE, SHALL HAVE NO RIGHT TO
ENTER UPON THE SURFACE OF THE ABOVE DESCRIBED LAND NOR TO USE ANY OF THE SAID
LAND OR ANY OF THE SAID LAND OR ANY PORTION THEREOF ABOVE SAID PLANE PARALLEL
TO AND 500 FEET BELOW THE PRESENT SURFACE OF THE SAID LAND FOR ANY PURPOSES
WHATSOEVER, AS GRANTED TO XXXXXX XXXXX, AS CUSTODIAN FOR XXXXXX XXXXX, XXXX
XXXXX AND XXXXXX XXXXX UNDER THE UNIFORM TRANSFERS TO MINORS ACT, AS TO AN
UNDIVIDED 50% INTEREST, AND TO XXXX XXXXX, AS CUSTODIAN FOR XXXXXXX XXXXX AND
XXXXXX XXXXX UNDER THE UNIFORM TRANSFERS TO MINORS ACT, AS TO AN UNDIVIDED 50%
INTEREST; TOGETHER AS TENANTS IN COMMON, BY DEED RECORDED JANUARY 2, 1990 AS
INSTRUMENT NO. 90-4904.
Xxxxxxx Atrium, Xxxxxxx Hills
PAGE 12 OF 30
EXHIBIT C-10
LEGAL DESCRIPTION
XXX 0 XX XXXXX 00000, IN THE CITY OF XXXXXX CITY, AS PER MAP RECORDED IN BOOK
880 PAGES 49 TO 55 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY.
EXCEPT ALL METALS AND MINERALS AND ALL OIL, NATURAL GAS, ASPHALTUM AND OTHER
HYDROCARBONS, WITHOUT RIGHT OF SURFACE ENTRY, TOGETHER WITH THE RIGHT TO
EXPLORE AND TO DRILL FOR AND TO PRODUCE, EXTRACT AND TAKE METALS AND
MINERALS, OIL, NATURAL GAS, ASPHALTUM AND OTHER HYDROCARBONS, TOGETHER WITH
ALL RIGHTS NECESSARY AND CONVENIENT THERETO FOR ANY OR ALL OF THE ABOVE
PURPOSES, INCLUDING WITHOUT LIMITING THE GENERALITY HEREOF, SUBSURFACE RIGHTS
OF WAY FOR DRILLING, REPAIRING, REDRILLING DEEPENING, MAINTAINING,
OPERATING, ABANDONING, REWORKING AND REMOVING XXXXX INTO AND THROUGH SAID
LAND, BELOW A PLANE OF 500 FEET BELOW THE SURFACE THEREOF AND EXCEPTING AND
RESERVING THE RIGHT TO MAINTAIN PIPES AND TO TRANSPORT ANY OF SUCH SUBSTANCES
AND TO CROSS AND TRAVERSE FROM OTHER LANDS BELOW A DEPTH OF 500 FEET, AS
RESERVED BY HOME SAVINGS AND LOAN ASSOCIATION, A CALIFORNIA CORPORATION, IN
DEED RECORDED DECEMBER 30, 1969 AS INSTRUMENT NO. 261, IN BOOK D4595 PAGE 72,
OFFICIAL RECORDS.
Bristol Plaza, Xxxxxx City
PAGE 13 OF 30
EXHIBIT C-11
LEGAL DESCRIPTION
LOTS 2, 4, 6, 8, 10, 12, 14, 16, 18 AND 20 IN BLOCK 48, OF THE TOWN OF
BURBANK, IN THE CITY OF BURBANK, AS PER MAP RECORDED IN BOOK 17 PAGES 19 TO
22 INCLUSIVE OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY.
EXCEPT FROM SAID LOT 2 THAT PORTION THEREOF LYING NORTHERLY AND NORTHEASTERLY
OF A LINE DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE SOUTHEASTERLY LINE OF SAID LOT 2 WITH
THE SOUTHWESTERLY LINE OF THE NORTHEASTERLY 20 FEET OF SAID LOT; THENCE
NORTHWESTERLY ALONG SAID SOUTHWESTERLY LINE 140 FEET, MORE OR LESS, TO THE
BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY HAVING A RADIUS OF 15 FEET
WHICH IS ALSO TANGENT TO THE NORTHEASTERLY LINE OF SAID LOT, THENCE
NORTHWESTERLY AND SOUTHERLY ALONG SAID CURVE TO SAID NORTHWESTERLY LINE.
Burbank Executive Plaza, Burbank
PAGE 14 OF 30
EXHIBIT C-12
LEGAL DESCRIPTION
PARCEL A:
THOSE PORTIONS OF XXXX 0 XXX 0 XX XXXXX 00000, XX THE CITY OF MONTEREY PARK,
AS PER MAP RECORDED IN BOOK 1012 PAGES 21 TO 27 INCLUSIVE OF MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS A WHOLE AS FOLLOWS:
BEGINNING AT THE EASTERLY COMMON CORNER OF SAID LOTS 1 AND 2; THENCE WESTERLY
ALONG XXX XXXXXX XXX XXXX XX XXXX XXXX, XXXXX 00 DEG. 39' 21" WEST 565.23
FEET; THENCE NORTHERLY, LEAVING SAID COMMON LOT LINE, NORTH 7 DEG. 56' 42"
WEST 25.17 FEET; THENCE NORTH 5 DEG. 04' 53" WEST 20.18 FEET; THENCE NORTH 6
DEG. 29' 18" EAST 21.00 FEET; THENCE NORTH 12 DEG. 05' 48" EAST 57.46 FEET;
THENCE NORTH 15 DEG. 03' 32" EAST 64.94 FEET; THENCE NORTH 18 DEG. 27' 48"
EAST 39.37 FEET; THENCE NORTH 12 DEG. 00' 31" EAST 194.35 FEET; THENCE SOUTH
89 DEG. 39' 21" WEST 267.98 FEET TO A POINT IN THE EASTERLY RIGHT-OF-WAY OF
CORPORATE CENTER DRIVE, VARIABLE WIDTH, AS SHOWN ON SAID MAP, SAID POINT LIES
ON A CURVE CONCAVE EASTERLY HAVING A RADIUS OF 442.00 FEET, A RADIAL LINE TO
SAID POINT BEARS NORTH 83 DEG. 07' 50" EAST; THENCE SOUTHERLY ALONG SAID
RIGHT-OF-WAY AND CURVE THROUGH A CENTRAL ANGLE OF 7 DEG. 00' 10", AN ARC
LENGTH OF 54.02 FEET; THENCE TANGENT TO SAID CURVE, SOUTH 0 DEG. 08' 00" WEST
170.26 FEET TO A TANGENT CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF
358.00 FEET; THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 31
DEG. 31' 00" AN ARC DISTANCE OF 196.92 FEET; THENCE SOUTHERLY, TANGENT TO
SAID CURVE, SOUTH 31 DEG. 23' 00" EAST 370.00 FEET TO A TANGENT CURVE CONCAVE
SOUTHWESTERLY HAVING
L.A. Corporate Center, Monterey Park
PAGE 15 OF 30
A RADIUS OF 492.00 FEET; THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL
ANGLE OF 17 DEG. 38' 28" AN ARC DISTANCE OF 151.48 FEET TO THE COMMON XXX
XXXXXX XX XXXX 0 XXX 0 XX XXXX XXX, A RADIAL LINE TO SAID CORNER BEARS NORTH
76 DEG. 15' 28" EAST; THENCE LEAVING SAID CURVE AND SAID RIGHT-OF-WAY,
EASTERLY ALONG THE COMMON LINE OF SAID XXXX 0 XXX 0, XXXXX 00 XXX. 15' 28"
EAST 461.67 FEET TO THE EASTERLY LINE OF LOT 2; THENCE NORTHERLY ALONG SAID
EASTERLY LINE NORTH 0 DEG. 01' 03" WEST 349.69 FEET TO THE POINT OF BEGINNING.
EXCEPT THEREFROM ALL GAS, OIL, AND OTHER HYDROCARBON SUBSTANCES AND ALL OTHER
MINERALS IN AND FROM THE LAND DESCRIBED IN DEED MENTIONED HEREAFTER,
PROVIDED, HOWEVER, NO RIGHT IS RESERVED TO ENTER ON OR FROM THE SURFACE OF
SAID LAND, THE RIGHT TO ENTER THE SUBSURFACE OF SAID PROPERTY, WHICH IS ALSO
RESERVED SHALL BE AT ANY POINT BELOW A DEPTH OF 500 FEET FROM THE SURFACE
THEREOF (MEASURED VERTICALLY FROM THE SURFACE THEREOF) IN ORDER TO TAKE FROM
SAID LAND AND REDUCE TO POSSESSION ANY OIL, GAS AND OTHER HYDROCARBON
SUBSTANCES AND ALL OTHER MINERALS, AS EXCEPTED AND RESERVED BY XXXXX XXXXXXX
XXXXXX, A WIDOW, ET AL., IN DEED TO BOBWILL BUILDING CO., A CORPORATION
RECORDED SEPTEMBER 13, 1955 AS INSTRUMENT NO. 2398 IN BOOK 48924 PAGE 346
OFFICIAL RECORDS.
PARCEL A-1:
A NON-EXCLUSIVE EASEMENT FOR PARKING FACILITY, VEHICULAR AND PEDESTRIAN
INGRESS AND EGRESS TO AND FROM SAID PARKING FACILITY, AND UTILITIES ATTENDANT
TO THE OPERATION AND MAINTENANCE THEREOF, AS CONTAINED IN THAT CERTAIN
AGREEMENT OF PARKING EASEMENT, DATED APRIL 9, 1990, BY AND BETWEEN LOS
ANGELES CORPORATE CENTER VENTURE, A CALIFORNIA GENERAL PARTNERSHIP, AND THE
REDEVELOPMENT AGENCY OF MONTEREY PARK AND THE CITY OF MONTEREY PARK, RECORDED
APRIL 9, 1990 AS INSTRUMENT NO. 90-668740, OVER THAT PORTION OF XXX 0 XX
XXXXX XXX XX. 00000, XX THE CITY OF MONTEREY PARK, AS PER MAP RECORDED IN
BOOK 1012 PAGES 21 TO 27 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, DESCRIBED AS A WHOLE AS FOLLOWS:
BEGINNING AT THE MOST EASTERLY COMMON CORNER OF SAID XXX 0 XXX XXX 0 XX XXXXX
XX XXXX XXX; THENCE WESTERLY ALONG THE COMMON LOT LINE OF SAID XXXX 0 XXX 0,
XXXXX 00 XXX. 39' 21" WEST 25.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE
CONTINUING ALONG SAID COMMON LOT LINE, SOUTH 89 DEG. 39' 21" WEST 240.00
FEET; THENCE NORTHERLY LEAVING SAID COMMON LOT LINE, NORTH 0 DEG. 20' 39"
WEST 87.00 FEET; THENCE EASTERLY, PARALLEL TO SAID COMMON LOT LINE, NORTH 89
DEG. 39' 21" EAST 240.00 FEET; THENCE SOUTHERLY SOUTH 0 DEG. 20' 39" EAST
87.00 FEET TO THE TRUE POINT OF BEGINNING.
PARCEL B:
XXX 0 XX XXXXX 00000, IN THE CITY OF MONTEREY PARK, AS PER MAP RECORDED IN
BOOK 1012 PAGES 21 TO 27 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, EXCEPT THEREFROM THAT PORTION OF SAID LOT 4
DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST EASTERLY CORNER OF SAID LOT 4; THENCE ALONG THE
NORTHEASTERLY LINE OF SAID XXX 0, XXXXX 00 XXX. 05' 00" WEST 336.04 FEET;
THENCE SOUTH 7 DEG. 46' 24" EAST 36.06 FEET TO A LINE THAT IS PARALLEL WITH
AND DISTANT SOUTHWESTERLY 30.00 FEET, MEASURED AT RIGHT ANGLES, FROM SAID
NORTHEASTERLY LINE OF LOT 4; THENCE SOUTHEASTERLY ALONG SAID PARALLEL LINE
SOUTH 64 DEG. 05' 00" EAST 306.32 FEET TO THE SOUTHEASTERLY LINE OF SAID LOT
4; THENCE
L.A. Corporate Center, Monterey Park
PAGE 16 OF 30
ALONG SAID SOUTHEASTERLY LINE OF XXX 0, XXXXX 00 XXX. 51' 17"
EAST 31.53 FEET TO THE POINT OF BEGINNING.
ALSO THAT CERTAIN PORTION OF XXX 0 XX XXXX XXXXX 00000 DESCRIBED IN A
DOCUMENT RECORDED OCTOBER 25, 1984 AS INSTRUMENT NO. 00-0000000, AS FOLLOWS:
A STRIP OF LAND 10 FEET IN WIDTH, THE NORTHEASTERLY LINE OF SAID STRIP BEING
THAT CERTAIN COURSE IN THE NORTHEASTERLY BOUNDARY OF SAID LOT 5 HAVING A
BEARING AND DISTANCE OF NORTH 42 DEG. 02' 01" WEST 389.65 FEET.
EXCEPT THEREFROM ALL GAS, OIL, AND OTHER HYDROCARBON SUBSTANCES AND ALL
OTHER MINERALS IN AND FROM THE LAND DESCRIBED IN DEED MENTIONED HEREAFTER,
PROVIDED, HOWEVER, NO RIGHT IS RESERVED TO ENTER IN OR FROM THE SURFACE OF
SAID LAND, THE RIGHT TO ENTER THE SUBSURFACE OF SAID PROPERTY, WHICH IS ALSO
RESERVED SHALL BE AT ANY POINT BELOW A DEPTH OF 500 FEET FROM THE SURFACE
THEREOF (MEASURED VERTICALLY FROM THE SURFACE THEREOF) IN ORDER TO TAKE FROM
SAID LAND AND REDUCE TO POSSESSION ANY OIL, GAS AND OTHER HYDROCARBON
SUBSTANCES AND ALL OTHER MINERALS, AS EXCEPTED AND RESERVED BY XXXXX XXXXXXX
XXXXXX, A WIDOW, ET AL., IN DEED TO BOBWILL BUILDING CO., A CORPORATION
RECORDED SEPTEMBER 13, 1955 AS INSTRUMENT NO. 2398 IN BOOK 48924 PAGE 346
OFFICIAL RECORDS.
PARCEL B-1:
AN EASEMENT FOR PARKING AND INGRESS AND EGRESS AS GRANTED IN THAT CERTAIN
AGREEMENT OF PARKING EASEMENT AND MAINTENANCE AGREEMENT BY AND BETWEEN LOS
ANGELES CORPORATE CENTER VENTURE, A CALIFORNIA GENERAL PARTNERSHIP, AND LOS
ANGELES CORPORATE CENTER VENTURE II, A CALIFORNIA GENERAL PARTNERSHIP,
RECORDED JULY 23, 1986 AS INSTRUMENT NO. 86-931242 OVER THAT PORTION OF XXXX 0
XXX XXX 0 XX XXXXX 00000, XX THE CITY OF MONTEREY PARK, AS PER MAP RECORDED
IN BOOK 1012 PAGES 21 TO 27 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWESTERLY CORNER OF SAID LOT 3, SAID CORNER BEING A
POINT IN THE NORTHEASTERLY LINE OF CORPORATE CENTER DRIVE, 64.00 FEET WIDE,
AS SHOWN ON THE MAP OF SAID TRACT 42611; THENCE ALONG THE NORTHERLY AND
NORTHEASTERLY BOUNDARY OF SAID XXX 0, XXXXX 00 XXX. 15' 28" EAST 461.87 FEET;
THENCE SOUTH 0 DEG. 01' 03" EAST 109.63 FEET; THENCE SOUTH 46 DEG. 08' 45"
EAST 121.91 FEET; THENCE LEAVING SAID NORTHEASTERLY BOUNDARY OF XXX 0, XXXXX
00 XXX. 21' 07" WEST 83.00 FEET; THENCE SOUTH 36 DEG. 13' 46" WEST 46.00
FEET; THENCE SOUTH 45 DEG. 50' 48" WEST 105.46 FEET; THENCE SOUTH 27 DEG. 08'
18" WEST 231.27 FEET TO A LINE PARALLEL TO AND DISTANT SOUTHWESTERLY 30.00
FEET, MEASURED AT RIGHT ANGLES, FROM THE SOUTHWESTERLY LINE OF SAID LOT 3;
THENCE NORTHWESTERLY ALONG SAID PARALLEL LINE NORTH 64 DEG. 05' 00" WEST
193.41 FEET; THENCE NORTH 25 DEG. 55' 00" EAST 30.00 FEET TO SAID
SOUTHWESTERLY LINE OF LOT 3; THENCE NORTHWESTERLY ALONG SAID SOUTHWESTERLY
LINE NORTH 64 DEG. 05' 00" WEST 18.00 FEET; THENCE NORTH 25 DEG. 55' 00" EAST
276.15 FEET; THENCE NORTH 64 DEG. 05' 00" WEST 189.44 FEET; THENCE SOUTH 76
DEG. 15' 28" WEST 63.39 FEET TO A POINT IN SAID NORTHEASTERLY LINE OF
CORPORATE CENTER DRIVE, SAID POINT BEING A POINT IN A CURVE CONCAVE TO THE
WEST HAVING A RADIUS OF 492.00 FEET; TO WHICH A RADIAL LINE BEARS NORTH 81
DEG. 16' 19" EAST; THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE
OF 5 DEG. 00' 51", AN ARC DISTANCE OF 43.06 FEET TO THE POINT OF BEGINNING.
L.A. Corporate Center, Monterey Park
PAGE 17 OF 30
PARCEL C:
XXX 00 XX XXXXX 00000, IN THE CITY OF MONTEREY PARK, AS PER MAP RECORDED IN
BOOK 1012 PAGES 21 TO 27 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPT A STRIP OF LAND 10 FEET IN WIDTH, THE NORTHWESTERLY LINE OF SAID STRIP
BEING THAT CERTAIN COURSE IN THE NORTHEASTERLY BOUNDARY OF SAID LOT 18 HAVING
A BEARING AND DISTANCE OF NORTH 65 DEG. 04' 00" WEST 438.07 FEET, AS
DESCRIBED IN A DOCUMENT RECORDED OCTOBER 25, 1984 AS INSTRUMENT NO.
00-0000000.
ALSO EXCEPT ALL OIL, ASPHALTUM, PETROLEUM, AND NATURAL GAS, TAR OR OTHER
HYDROCARBON SUBSTANCES AND PRODUCTS, FROM UNDER OR UPON THE SAID LANDS, WITH
THE RIGHT TO REMOVE AND STORE AND SELL SUCH SUBSTANCES AND PRODUCTS
THEREFROM, TOGETHER WITH ALL RIGHTS FOR THE PURPOSE OF MINING, EXCAVATING,
BORING, DRILLING, SINKING OR OTHERWISE COLLECTING AND DEVELOPING SAID MINERAL
SUBSTANCES AND THE RIGHT TO DEVELOP, STORE AND USE WATER FOR SUCH OPERATIONS
AND DEVELOPMENT, AS RESERVED IN DEED FROM HUNTINGTON LAND AND IMPROVEMENT
COMPANY, A CALIFORNIA CORPORATION, RECORDED OCTOBER 25, 1918 IN BOOK 6707
PAGE 300 OF DEEDS, ALL OF WHICH RIGHTS WERE LIMITED TO THAT PORTION LYING
BELOW A DEPTH OF 500 FEET, MEASURED FROM THE SURFACE OF SAID LAND, BY DEED
EXECUTED BY SECURITY PACIFIC NATIONAL BANK, A NATIONAL BANKING ASSOCIATION,
SUCCESSOR BY MERGER TO SECURITY FIRST NATIONAL BANK OF LOS ANGELES, AS TRUSTEE
UNDER THE WILL OF XXXXX X. XXXXXXXXXX, DECEASED, (TRUST NO. 2-018442-0)
RECORDED DECEMBER 17, 1960 AS INSTRUMENT NO. 00-0000000, FROM UNDER OR UPON
THAT PORTION OF SAID LAND LYING WITHIN A PORTION OF THE XXXXXXXXX XXXXXXX XX
XXXXXXX 00, XXXXXXXX 0 XXXXX, XXXXX 12 WEST, SAN BERNARDINO MERIDIAN,
DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE NORTHERLY LINE OF SAID SECTION 32, SAID POINT
BEING 466.52 FEET EASTERLY OF THE NORTHWEST CORNER OF SAID SECTION 32; THENCE
SOUTHERLY ALONG A LINE PARALLEL WITH THE WESTERLY LINE OF SAID SECTION 32,
500 FEET TO A POINT; THENCE EASTERLY ALONG A LINE PARALLEL WITH THE NORTHERLY
LINE OF SAID SECTION 32 TO ITS INTERSECTION WITH THE EASTERLY LINE OF SAID
NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF SAID SECTION 32; THENCE
NORTHERLY ALONG SAID EASTERLY LINE OF THE NORTHWEST QUARTER OF THE NORTHWEST
QUARTER OF SAID SECTION 32, 500 FEET TO THE NORTHERLY LINE OF SAID SECTION;
THENCE WESTERLY ALONG THE NORTHERLY LINE OF SAID SECTION TO THE POINT OF
BEGINNING.
ALSO EXCEPT THEREFROM ALL GAS, OIL AND OTHER HYDROCARBON SUBSTANCES AND ALL
OTHER MINERALS IN AND FROM THE LAND DESCRIBED IN DEED MENTIONED HEREAFTER,
PROVIDED, HOWEVER, NO RIGHT IS RESERVED TO ENTER ON OR FROM THE SURFACE OF
SAID LAND, THE RIGHT TO ENTER THE SUBSURFACE OF SAID PROPERTY, WHICH IS ALSO
RESERVED SHALL BE AT ANY POINT BELOW A DEPTH OF 500 FEET FROM THE SURFACE
THEREOF. (MEASURED VERTICALLY FROM THE SURFACE THEREOF) IN ORDER TO TAKE FROM
SAID LAND AND REDUCE TO POSSESSION ANY OIL, GAS AND OTHER HYDROCARBON
SUBSTANCES AND ALL OTHER MINERALS, AS EXCEPTED AND RESERVED BY XXXXX XXXXXXX
XXXXXX, A WIDOW, ET AL. IN DEED TO BOBWILL BUILDING CO., A CORPORATION,
RECORDED SEPTEMBER 13, 1955 AS INSTRUMENT NO. 2398 IN BOOK 48924 PAGE 346,
OFFICIAL RECORDS.
L.A. Corporate Center, Monterey Park
PAGE 18 OF 30
PARCEL D:
XXX 0 XX XXXXX 00000, IN THE CITY OF MONTEREY PARK, AS PER MAP RECORDED IN
BOOK 1012 PAGES 21 TO 27 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, ALSO THAT CERTAIN PORTION OF XXX 0 XX XXXX XXXXX
00000, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST EASTERLY CORNER OF SAID LOT 4; THENCE ALONG THE
NORTHEASTERLY LINE OF SAID XXX 0, XXXXX 00 XXX. 05' 00" WEST 336.04 FEET;
THENCE SOUTH 7 DEG. 46' 24" EAST 36.06 FEET TO A LINE THAT IS PARALLEL WITH
AND DISTANT SOUTHWESTERLY 30.00 FEET, MEASURED AT RIGHT ANGLES, FROM SAID
NORTHEASTERLY LINE OF LOT 4; THENCE SOUTHEASTERLY ALONG SAID PARALLEL LINE
SOUTH 64 DEG. 05' 00" EAST 306.32 FEET TO THE SOUTHEASTERLY LINE OF SAID LOT
4; THENCE ALONG SAID SOUTHEASTERLY LINE OF XXX 0, XXXXX 00 XXX. 51' 17" EAST
31.53 FEET TO THE POINT OF THE BEGINNING.
EXCEPT THEREFROM ALL GAS, OIL, AND OTHER HYDROCARBON SUBSTANCES AND ALL OTHER
MINERALS IN AND FROM THE LAND DESCRIBED IN DEED MENTIONED HEREAFTER,
PROVIDED, HOWEVER, NO RIGHT IS RESERVED TO ENTER ON OR FROM THE SURFACE OF
SAID LAND, THE RIGHT TO ENTER THE SUBSURFACE OF SAID PROPERTY, WHICH IS ALSO
RESERVED SHALL BE AT ANY POINT BELOW A DEPTH OF 500 FEET FROM THE SURFACE
THEREOF (MEASURED VERTICALLY FROM THE SURFACE THEREOF) IN ORDER TO TAKE FROM
SAID LAND AND REDUCE TO POSSESSION ANY OIL, GAS AND OTHER HYDROCARBON
SUBSTANCES AND ALL OTHER MINERALS, AS EXCEPTED AND RESERVED BY XXXXX XXXXXXX
XXXXXX, A WIDOW, ET AL., IN DEED TO BOBWILL BUILDING CO., A CORPORATION,
RECORDED SEPTEMBER 13, 1955 AS INSTRUMENT NO. 2398 IN BOOK 48924 PAGE 346,
OFFICIAL RECORDS.
PARCEL D-1:
AN EASEMENT FOR PARKING AND INGRESS AND EGRESS AS GRANTED IN THAT CERTAIN
AGREEMENT OF PARKING EASEMENT AND MAINTENANCE AGREEMENT BY AND BETWEEN LOS
ANGELES CORPORATE CENTER VENTURE, A CALIFORNIA GENERAL PARTNERSHIP, AND LOS
ANGELES CORPORATE CENTER VENTURE II, A CALIFORNIA GENERAL PARTNERSHIP,
RECORDED JULY 23, 1986 AS INSTRUMENT NO. 86-931242 OVER THAT PORTION OF XXX 0
XX XXXXX 00000, IN THE CITY OF MONTEREY PARK, AS PER MAP RECORDED IN BOOK
1012 PAGES 21 TO 27 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY, DESCRIBED AS A WHOLE AS FOLLOWS:
BEGINNING AT A POINT IN THE NORTHEASTERLY LINE OF SAID XXX 0, XXXXXXX XXXXXXX
XXXXX 00 XXX. 05' 00" EAST 170.97 FEET FROM THE MOST NORTHERLY CORNER OF SAID
LOT 4; THENCE SOUTH 25 DEG. 55' 00" WEST 30.00 FEET TO THE TRUE POINT OF
BEGINNING; THENCE SOUTH 25 DEG. 55' 00" WEST 203.50 FEET TO THE BEGINNING OF
A TANGENT CURVE CONCAVE TO THE NORTHWEST HAVING A RADIUS OF 24.50 FEET;
THENCE SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 90 DEG. 00'
00" AN ARC DISTANCE 38.46 FEET; THENCE NORTH 64 DEG. 05' 00" WEST 145.40 FEET
TO A POINT IN THE EASTERLY LINE OF CORPORATE CENTER DRIVE, 84.00 FEET WIDE,
AS SHOWN ON THE MAP OF SAID TRACT 42611, SAID EASTERLY LINE BEING A CURVE
CONCAVE TO THE NORTHWEST HAVING A RADIUS OF 642.00 FEET, A RADIAL LINE TO
SAID POINT BEARS SOUTH 61 DEG. 25' 43" EAST; THENCE SOUTHERLY ALONG SAID
CURVE THROUGH A CENTRAL ANGLE OF 2 DEG. 06' 50" AN ARC DISTANCE OF 31.07
FEET; THENCE SOUTH 64 DEG. 05' 00" EAST 7.91 FEET, THENCE SOUTH 25 DEG. 55'
00" WEST 263.84 FEET; THENCE SOUTH 64 DEG. 05' 00" EAST 183.00 FEET; THENCE
NORTH 25 DEG. 55' 00" EAST 263.84 FEET; THENCE SOUTH 64 DEG. 05' 00" EAST
42.19 FEET; THENCE NORTH 65 DEG. 00' 01" EAST 61.13 FEET; THENCE NORTH 35
DEG. 03' 37" EAST 46.86 FEET; THENCE NORTH 46 DEG. 37' 10" EAST 71.29 FEET;
THENCE NORTH 42 DEG. 46' 00"
X.X. Xxxxxxxxx Xxxxxx, Xxxxxxxx Xxxx
PAGE 19 OF 30
EAST 103.03 FEET TO A LINE PARALLEL TO AND DISTANT SOUTHWESTERLY 30.00 FEET,
MEASURED AT RIGHT ANGLES, FROM THE NORTHEASTERLY LINE OF SAID LOT 4; THENCE
NORTHWESTERLY ALONG SAID PARALLEL LINE NORTH 64 DEG. 05' 00" WEST 162.24 FEET
TO THE TRUE POINT OF BEGINNING.
PARCEL E:
XXX 0 XXX XXXXXXX XX XXXX 0 XXX 0 XX XXXXX 00000, IN THE CITY OF MONTEREY
PARK, AS PER MAP RECORDED IN BOOK 1012 PAGES 21 TO 27 INCLUSIVE OF MAPS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF PARCEL 1 OF PARCEL MAP NO. 16386, IN
SAID CITY, COUNTY AND STATE, AS PER MAP FILED IN BOOK 175 PAGES 36 TO 40
INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, SAID POINT ALSO BEING THE BEGINNING OF A NON-TANGENT CURVE CONCAVE
NORTHWESTERLY HAVING A RADIUS OF 1,012 FEET, TO WHICH A RADIAL THROUGH SAID
POINT BEARS SOUTH 54 DEG. 50' 33" EAST; THENCE NORTHEASTERLY ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 10 DEG. 13' 27" AN ARC DISTANCE 180.59 FEET;
THENCE NORTH 24 DEG. 56' 00" EAST 241.00 FEET TO THE BEGINNING OF A CURVE
CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 25.00 FEET; THENCE NORTHEASTERLY,
EASTERLY AND SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 90
DEG. 00' 00", AN ARC DISTANCE OF 39.27 FEET; THENCE SOUGH 65 DEG. 04' 00"
EAST 63.39 FEET TO THE BEGINNING OF A CURVE CONCAVE NORTHEASTERLY HAVING A
RADIUS OF 507.00 FEET; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A
CENTRAL ANGLE OF 24 DEG. 39' 00", AN ARC DISTANCE OF 218.12 FEET; THENCE
SOUTH 89 DEG. 43' 00" EAST 240.48 FEET TO THE BEGINNING OF CURVE CONCAVE
SOUTHWESTERLY HAVING A RADIUS OF 833.00 FEET; THENCE EASTERLY ALONG SAID
CURVE THROUGH A CENTRAL ANGLE OF 4 DEG. 04' 23" AN ARC DISTANCE OF 45.00 FEET
TO A POINT ON A NON-TANGENT LINE, TO WHICH A RADIAL THROUGH SAID POINT BEARS
NORTH 4 DEG. 21' 23" EAST; THENCE ALONG SAID NON-TANGENT LINE SOUTH 30 DEG.
57' 00" WEST 152.00 FEET; THENCE SOUTH 0 DEG. 02' 40" EAST 20.00 FEET TO THE
NORTHERLY TERMINUS OF A LINE OF SAID XXX 0 XXXX XXXXX XXXXX 0 XXX. 02' 40"
WEST 154.89 FEET; THENCE CONTINUING SOUTH ALONG THE EASTERLY LINE OF
SAID XXX 0, XXXXX 0 XXX. 02' 40" EAST 154.89 FEET TO AN ANGLE POINT IN THE
EASTERLY LINE OF SAID LOT 9; THENCE CONTINUING SOUTH ALONG THE EASTERLY LINE
OF SAID XXX 0, XXXXX 0 XXX. 20' 17" EAST 0.11 FEET TO XXX XXXXXXXXX XXXX XX
XXXX XXXXXX XXX XX. 00000; THENCE WESTERLY ALONG SAID NORTHERLY LINE SOUTH 89
DEG. 38' 12" WEST 701.23 FEET TO THE POINT OF BEGINNING.
EXCEPT THEREFROM ALL GAS, OIL, AND OTHER HYDROCARBON SUBSTANCES AND ALL OTHER
MINERALS IN AND FROM THE LAND DESCRIBED IN DEED MENTIONED HEREAFTER,
PROVIDED, HOWEVER, NO RIGHT IS RESERVED TO ENTER ON OR FROM THE SURFACE OF
SAID LAND, THE RIGHT TO ENTER THE SUBSURFACE OF SAID PROPERTY, WHICH IS ALSO
RESERVED SHALL BE AT ANY POINT BELOW A DEPTH OF 500 FEET FROM THE SURFACE
THEREOF (MEASURED VERTICALLY FROM THE SURFACE THEREOF) IN ORDER TO TAKE FROM
SAID LAND AND REDUCE TO POSSESSION ANY OIL, GAS AND OTHER HYDROCARBON
SUBSTANCES AND ALL OTHER MINERALS, AS EXCEPTED AND RESERVED BY XXXXX XXXXXXX
XXXXXX, A WIDOW, ET AL., IN DEED TO BOBWILL BUILDING CO., A CORPORATION,
RECORDED SEPTEMBER 13, 1955 AS INSTRUMENT NO. 2398 IN BOOK 48924 PAGE 346,
OFFICIAL RECORDS.
ALSO EXCEPT FROM A PORTION THEREOF ALL OIL, GAS, MINERALS AND OTHER
HYDROCARBON SUBSTANCES LYING IN AND UNDER SAID LAND BELOW A DEPTH OF 500 FEET
FROM THE SURFACE THEREOF, WITHOUT THE RIGHT OF SURFACE ENTRY, AS RESERVED BY
XXXX X. XXXXX, AS TRUSTEE, UNDER DECLARATION OF TRUST, DATED JULY 21, 1953
ESTABLISHED BY XXXXXX XXXXXXXX, TRUSTOR, IN THE DEED RECORDED
L.A. Corporate Center, Monterey Park
PAGE 20 OF 30
ON MAY 8, 1981 AS INSTRUMENT NO. 81-461705.
PARCEL F:
EASEMENTS AND OTHER RIGHTS CREATED BY THE (1) COVENANTS, CONDITIONS AND
RESTRICTIONS, RECORDED OCTOBER 12, 1963 AS INSTRUMENT NO. 00-0000000, AS
AMENDED BY DOCUMENT RECORDED MAY 14, 1987 AS INSTRUMENT NO. 87-754911,
DOCUMENT RECORDED MAY 14, 1967 AS INSTRUMENT NO. 87-754913 AND DOCUMENT
RECORDED NOVEMBER 30, 1989 AS INSTRUMENT NO. 89-1926876; (2) RESOLUTION
RECORDED JANUARY 29, 1990 AS INSTRUMENT NO. 90-155862; AND (3) COVENANTS,
CONDITIONS AND RESTRICTIONS RECORDED APRIL 9, 1990 AS INSTRUMENT NO.
90-668739.
L.A. Corporate Center, Monterey Park
PAGE 21 OF 30
EXHIBIT C-13
LEGAL DESCRIPTION
PARCEL 1 OF PARCEL MAP 12439, IN THE CITY OF NORWALK, AS PER MAP FILED IN
BOOK 120 PAGE 44 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
EXCEPT THAT PORTION LYING SOUTH AND EAST OF THE FOLLOWING DESCRIBED LINE:
BEGINNING AT THE NORTHEAST CORNER OF SAID PARCEL 1; THENCE ALONG THE EASTERLY
LINE OF SAID PARCEL 1, 39.50 FEET TO THE TRUE POINT OF BEGINNING; THENCE
LEAVING SAID EASTERLY LINE SOUTH 89 DEG. 46' 55" WEST, A DISTANCE OF 396.00
FEET; THENCE SOUTH 44 DEG. 47' 45" WEST, A DISTANCE OF 14.15 FEET; THENCE
SOUTH 00 DEG. 11' 25" EAST, A DISTANCE OF 557.50 FEET TO A POINT IN THE
SOUTHERLY LINE OF SAID PARCEL 1.
SUCH PARCEL IS ALSO KNOW AS PARCEL 1 SHOWN ON EXHIBIT C TO LOT LINE
ADJUSTMENT NO. 25 RECORDED AUGUST 3, 1993 AS INSTRUMENT NO. 00-0000000.
NORWALK, Norwalk
PAGE 22 OF 30
EXHIBIT C-14
LEGAL DESCRIPTION
PARCEL 1:
PARCELS "B" AND "C" OF PARCEL MAP L.A. NO. 4316, IN THE CITY OF LOS ANGELES,
AS PER MAP FILED IN BOOK 121 PAGE 46 OF PARCEL MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
PARCEL 2:
THE FOLLOWING DESCRIPTION EASEMENT AS CREATED BY THAT CERTAIN DOCUMENT
ENTITLED "RECIPROCAL GRANT OF EASEMENTS AND MAINTENANCE AGREEMENT
(DRIVEWAY)" DATED DECEMBER 5, 1980 AND RECORDED DECEMBER 5, 1980 AS
INSTRUMENT NO. 00-0000000:
A NON-EXCLUSIVE AND PERPETUAL EASEMENT, APPURTENANT TO PARCEL 1 ABOVE, FOR
THE PURPOSE OF PEDESTRIAN AND VEHICULAR INGRESS, EGRESS, AND ACCESS;
MAINTENANCE, REPAIR AND REPLACEMENT OF DRIVEWAYS, UNDERGROUND UTILITIES,
SEWERS, STORM DRAINS AND SIMILAR FACILITIES, CURBS, GUTTERS, TRAFFIC ISLANDS,
LIGHTING FACILITIES, PLANTS AND LANDSCAPING, PLANTERS, SPRINKLERS, AND
VALVES, AND INCIDENTAL PURPOSES; OVER, UNDER, ACROSS AND THROUGH THE EASTERLY
MOST 20 FEET OF PARTIAL "A" OF PARCEL MAP L.A. NO. 4318 (REFERRED TO IN
PARCEL 1 ABOVE).
Skyview Center, Los Angeles PAGE 23 OF 30
PARCEL 3:
XXXX 00, 00, 00, 00 XXX 00 (XXXXXX THE WEST 125 FEET OF SAID XXX 00) XX XXXXX
00000, IN THE CITY OF LOS ANGELES, AS PER MAP RECORDED IN BOOK 267 PAGES 43
AND 44 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 4:
XXXX 00, 00, 00, 00, 00, 00, 00, 00, 93, 108, 109, 110, 111, 112, 113, 114,
115 AND 116 OF TRACT 13403, IN THE CITY OF LOS ANGELES, AS PER MAP RECORDED
IN BOOK 288 PAGES 1 TO 3, INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPT THEREFROM ALL OIL, GAS OR OTHER HYDROCARBON SUBSTANCES LYING IN, UNDER
AND WHICH MAY BE PRODUCED FROM A DEPTH BELOW 500 FEET BELOW THE SURFACE OF
SAID REAL PROPERTY (MEASURED VERTICALLY FROM THE SURFACE THEREOF), PROVIDED,
HOWEVER, NO RIGHT IS RESERVED TO THE GRANTOR, IS SUCCESSORS AND ASSIGNS, BY
REASON OF THIS EXCEPTION OR RESERVATION, TO ENTER ON OR FROM THE SURFACE OF
SAID PROPERTY, AS RESERVED BY XXX X. XXXXX AND XXXXX X. XXXXX, HUSBAND AND
WIFE, BY DEED DATED DECEMBER 22, 1969, RECORDED FEBRUARY 13, 1970 IN BOOK
D4832 PAGE 610, OFFICIAL RECORDS, AS TO LOTS 85 AND 116; AND AS RESERVED BY
XXXXXXX X. XXXXXX AND MARCIELLETTE X. XXXXXX, HUSBAND AND WIFE, BY DEED DATED
AUGUST 10, 1970 RECORDED AUGUST 24, 1970 IN BOOK D4810 PAGE 522, OFFICIAL
RECORDS, AS TO LOTS 86, 115 AND 118; AS RESERVED BY XXXXXXX X. XXXXXX, AN
UNMARRIED MAN, BY DEED DATED JANUARY 12, 1970, RECORDED FEBRUARY 19, 1970 IN
BOOK D4637 PAGE 156, OFFICIAL RECORDS AS TO LOT 87; AND AS RESERVED BY XXXXX
X. XXXXXX AND XXXX XXXXX XXXXXX, HUSBAND AND WIFE, BY DEED DATED DECEMBER 22,
1969, RECORDED FEBRUARY 2, 1970 IN BOOK D4622 PAGE 82, OFFICIAL RECORDS, AS
TO LOTS 88 AND 113; AND AS RESERVED BY XXXX X. XXXXXX AND XXXXXXX X. XXXXXX,
HUSBAND AND WIFE, AS TO LOTS 89 AND 112, IN DEED RECORDED MARCH 10, 1969 AS
INSTRUMENT NO. 335 IN BOOK D4301 PAGE 462, OFFICIAL RECORDS AND AS RESERVED
BY XXXXXXX X. XXXXXX AND MARCIELLETTE X. XXXXXX, HUSBAND AND WIFE, AS TO LOTS
90 AND 111, IN DEED RECORDED MARCH 10, 1969 AS INSTRUMENT NO. 334 IN BOOK
D4301 PAGE 461, OFFICIAL RECORDS; AND AS RESERVED BY XXXXXX XXXXXX AND XXXXX
XXXXXX, HUSBAND AND WIFE, AS TO LOTS 92 AND 109, IN DEED RECORDED MARCH 10,
1969 AS INSTRUMENT NO. 331 IN BOOK D4301 PAGE 460, OFFICIAL RECORDS; AND AS
RESERVED BY XXXXX X. XXXXXX AND XXXXXX X. XXXXXX, HUSBAND AND WIFE, AS TO
LOTS 93 AND 108, IN DEED RECORDED MARCH 10, 1969 AS INSTRUMENT NO. 328, IN
BOOK D4301 PAGE 459, OFFICIAL RECORDS; AND AS RESERVED BY XXXXXX XXXXXXX
XXXX, AS EXECUTRIX OF THE LAST WILL AND TESTAMENT OF XXXXXXXX XXXXXXXX XXXXX,
DECEASED, BY DEED DATED MAY 27, 1971, RECORDED JUNE 14, 1971 IN BOOK 5099
PAGE 862, OFFICIAL RECORDS, AS TO LOT 114.
ALSO EXCEPTING AS TO LOTS 91 AND 110, ALL OIL, GAS, MINERALS AND OTHER
HYDROCARBON SUBSTANCES LYING WITHIN THAT PORTION OF THE LAND HEREIN CONVEYED
WHICH LIES BELOW A DEPTH OF 500 FEET FROM THE PRESENT SURFACE THEREOF,
WITHOUT ANY RIGHT TO ENTER UPON OR INTO THE SURFACE OR TOP 500 FEET OF THE
SUBSURFACE OF SAID LAND, AS EXCEPTED IN DEED RECORDED JULY 18, 1978 AS
INSTRUMENT NO. 78-777109.
PARCEL 5:
XXXX 000, 000, 000, 000, 000, 000, 000, 165, 166, 167, 168, 169, 170, 171,
172, 173, 174, 190, 000,
Xxxxxxx Xxxxxx, Xxx Xxxxxxx PAGE 24 OF 30
192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206 OF
TRACT 13711, IN THE CITY OF LOS ANGELES, AS PER MAP RECORDED IN BOOK 276
PAGES 48 TO 50, INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY.
EXCEPT THEREFROM ALL OIL, GAS OR OTHER HYDROCARBON SUBSTANCES LYING IN, UNDER
AND WHICH MAY BE PRODUCED FROM A DEPTH BELOW 500 FEET BELOW THE SURFACE OF
SAID REAL PROPERTY (MEASURED VERTICALLY FROM THE SURFACE THEREOF), PROVIDED,
HOWEVER, NO RIGHT IS RESERVED TO THE GRANTOR, IS SUCCESSORS AND ASSIGNS, BY
REASON OF THIS EXCEPTION OR RESERVATION TO ENTER ON OR FROM THE SURFACE OF
SAID PROPERTY, AS RESERVED BY XXXXXX TO XXXXX, A MARRIED MAN, WHO ACQUIRED
TITLE AS A SINGLE MAN, DATED AUGUST 21, 1970, RECORDED SEPTEMBER 4, 1970 IN
BOOK D4823 PAGE 319, OFFICIAL RECORDS, AS TO LOTS 158 AND 190; AND AS
RESERVED BY XXXX X. XXXXXX AND XXXXX X. XXXXXX, HUSBAND AND WIFE, BY DEED
DATED DECEMBER 22, 1969, RECORDED FEBRUARY 2, 1970 IN BOOK D4622, PAGE 83,
OFFICIAL RECORDS, AS TO LOTS 159 AND 191; AND AS RESERVED BY XXXXXX X. XXXXXX
AND XXXXXXXX XXXXXX, HUSBAND AND WIFE, BY DEED DATED MAY 14, 1970; RECORDED
MAY 27, 1970 IN BOOK D4723 PAGE 922, OFFICIAL RECORDS, AS TO LOTS 160 AND
192; AND AS RESERVED BY XXXXX XXXXXX, A MARRIED WOMAN, BY DEED DATED MARCH
31, 1970 AND RECORDED APRIL 20, 1970 IN BOOK D4689 PAGE 599, OFFICIAL
RECORDS, AS TO LOTS 161 AND 193; AND AS RESERVED BY XXXXXXX X. XXXXXX AND
XXXXX X. XXXXXX, HUSBAND AND WIFE, BY DEED RECORDED FEBRUARY 2, 1970 IN BOOK
D4622 PAGE 112, OFFICIAL RECORDS, AS TO LOTS 162 AND 194; AND AS RESERVED BY
XXXXXXX X. XXXXXX, AND MARCIELLETTE X. XXXXXX, HUSBAND AND WIFE, BY DEED
DATED DECEMBER 19, 1969, RECORDED FEBRUARY 2, 1970 IN BOOK D4622 PAGE 113,
OFFICIAL RECORDS, AS TO LOTS 163 AND 195; AND AS RESERVED BY XXXXXX X.
XXXXXXX AND XXXXXXXX X. XXXXXXX, HUSBAND AND WIFE, IN DEED RECORDED FEBRUARY
28, 1969 IN BOOK D4292 PAGE 209, OFFICIAL RECORDS, AS TO LOTS 164 AND 196;
AND AS RESERVED BY XXXXXXX X. XXXXXX, A WIDOWER, BY DEED DATED DECEMBER 23,
1969, RECORDED FEBRUARY 2, 1970 IN BOOK D4622 PAGE 92, OFFICIAL RECORDS, AS
TO LOTS 165 AND 197; AND AS RESERVED BY XXXXX X. XXXXXX AND XXXX X. XXXXXX,
HUSBAND AND WIFE, BY DEED DATED MARCH 16, 1970, RECORDED MARCH 30, 1970 IN
BOOK D4670 PAGE 345, OFFICIAL RECORDS, AS TO LOTS 166 AND 198; AND AS
RESERVED BY XXXXX X. XXXXXXXX AND XXXXXXX X. XXXXXXXX, BY DEED DATED MARCH
20, 1970, RECORDED APRIL 16, 1970 IN BOOK D4687 PAGE 111, OFFICIAL RECORDS,
AS TO LOTS 167 AND 99; AND AS RESERVED BY XXXXX X. XXXXXX AND XXXXXXXX X.
XXXXXX, HUSBAND AND WIFE, BY DEED DATED DECEMBER 22, 1969, RECORDED FEBRUARY
2, 1970 IN BOOK D4622 PAGE 87, OFFICIAL RECORDS, AS TO LOTS 168 AND 200; AND
AS RESERVED BY XXXXXXX XXXXXXXXX, AN UNMARRIED WOMAN, BY DEED DATED DECEMBER
22, 1969, RECORDED FEBRUARY 2, 1970 IN BOOK D4622 PAGE 89, OFFICIAL RECORDS,
AS TO LOTS 169 AND 202; AND AS RESERVED BY XXXXXX X. XXXXXX AND XXXXXXX X.
XXXXXX, HUSBAND AND WIFE, BY DEED DATED MARCH 9, 1971, RECORDED APRIL 9, 1971
IN BOOK D5021 PAGE 510, OFFICIAL RECORDS, AS TO LOT 170; AND AS RESERVED BY
MONTE XXXX XXXXXXX AND XXXXXXX X. XXXXXXX, HUSBAND AND WIFE, BY DEED DATED
MARCH 9, 1971, RECORDED APRIL 9, 1971 IN BOOK D5021 PAGE 511, OFFICIAL
RECORDS, AS TO LOT 202; AND AS RESERVED BY XXXXXX XXXXXX AND XXXXX XXXXX
XXXXXX, HUSBAND AND WIFE, BY DEED DATED DECEMBER 22, 1969, RECORDED FEBRUARY
2, 1970 IN BOOK D4622 PAGE 88, OFFICIAL RECORDS, AS TO LOTS 171 AND 203; AND
AS RESERVED BY XXXXXX XXXXXX XXXX AND XXXXXX XXXXXX XXXX, HUSBAND AND WIFE,
BY DEED DATED MARCH 30, 1971, RECORDED APRIL 26, 1971 IN BOOK D5036 PAGE 999,
OFFICIAL RECORDS, AS TO LOTS 172 AND 204.
ALSO EXCEPTING FROM XXXX 000, 000, 000 XXX 206, ALL OIL, GAS, OR OTHER
HYDROCARBON SUBSTANCES LYING IN, UNDER AND WHICH MAY BE PRODUCED FROM A DEPTH
BELOW 500 FEET BELOW THE SURFACE OF SAID REAL PROPERTY (MEASURED VERTICALLY
FROM THE SURFACE THEREOF), PROVIDED, HOWEVER, NO RIGHT IS
Skyview Center, Los Angeles PAGE 25 OF 30
RESERVED TO THE GRANTOR, ITS SUCCESSORS AND ASSIGNS, BY REASON OF THIS
EXCEPTION OR RESERVATION, TO ENTER ON OR FROM THE SURFACE OF SAID PROPERTY, AS
RESERVED BY XXXXXX XXXXXX XXXX AND XXXXXX XXXXXX XXXX, HUSBAND AND WIFE, IN
DEED RECORDED SEPTEMBER 10, 1970 AS INSTRUMENT NO. 80, OFFICIAL RECORDS.
PARCEL 6:
THE FOLLOWING DESCRIBED EASEMENT AS RESERVED IN THE DEED TO PLAZA LA REINA
HOTEL VENTURE, A CALIFORNIA GENERAL PARTNERSHIP, DATED DECEMBER 5, 1980 AND
RECORDED DECEMBER 5, 1980 AS INSTRUMENT NO. 00-0000000; AND AS GRANTED IN THE
DEED TO PLAZA LA REINA OFFICE VENTURE, A CALIFORNIA GENERAL PARTNERSHIP,
DATED DECEMBER 5, 1980 AS INSTRUMENT NO. 00-0000000.
A NON-EXCLUSIVE EASEMENT AND RIGHT OF WAY TO CONSTRUCT AND MAINTAIN AND
OPERATE A PRIVATE SEWER WITH APPURTENANT STRUCTURES AND EQUIPMENT FOR THE
BENEFIT OF AND APPURTENANT TO AND TO SERVE PARCELS "B" AND "C" OF PARCEL MAP
L.A. NO. 4316, FILED IN BOOK 121 PAGE 46 OF PARCELS MAPS, LOS ANGELES COUNTY,
CALIFORNIA, OVER THE WESTERLY 20 FEET OF THE EASTERLY 165 FEET OF THE
NORTHERLY 70 FEET OF PARCEL "A" OF SAID PARCEL MAP; THE SOUTHERLY 20 FEET OF
THE NORTHERLY 70 FEET OF THE EASTERLY 165 FEET OF SAID PARCEL "A"; AND THE
SOUTHERLY 315 FEET OF THE NORTHERLY 365 FEET OF THE EASTERLY 20 FEET OF SAID
PARCEL "A"; TOGETHER WITH ALL NECESSARY OR CONVENIENT MEANS OF INGRESS AND
EGRESS FROM SAID LANDS AND PROPERTY FOR THE PURPOSE OF EXERCISING THE RIGHTS
HEREIN GRANTED.
Skyview Center, Los Angeles PAGE 26 OF 30
EXHIBIT C-15
LEGAL DESCRIPTION
PARCEL A:
PARCEL 2, IN THE CITY OF WESTLAKE VILLAGE, AS SHOWN ON PARCEL MAP NO. 140B1,
AS PER MAP FILED IN BOOK 153 PAGES 19 AND 20 OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
EXCEPT ALL THE OIL, GAS, AND OTHER HYDROCARBON SUBSTANCES LYING BELOW A DEPTH
OF 500 FEET, MEASURED VERTICALLY, FROM THE SURFACE OF SAID LAND, WITHOUT,
HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF SAID LAND NOR INTO THAT
PORTION OF THE SURFACE THEREOF LYING ABOVE A DEPTH OF 500 FEET; MEASURED
VERTICALLY FROM SAID SURFACE, AS GRANTED TO AMERICAN-HAWAIIAN STEAMSHIP
COMPANY, BY DEED RECORDED APRIL 5, 1966 IN BOOK D3261 PAGE 937, OFFICIAL
RECORDS.
ALSO EXCEPT ANY AND ALL WATER, WATER RIGHTS AND PRIVILEGES, RIPARIAN RIGHTS
AND WATER EASEMENTS AND PROFITS BELONGING, OR IN ANY WAY APPURTENANT TO THE
DESCRIBED REAL PROPERTY.
PARCEL B:
A NON-EXCLUSIVE EASEMENT FOR PARKING, INGRESS AND EGRESS, PUBLIC UTILITIES,
PEDESTRIAN TRAFFIC AND OTHER PURPOSES OVER THAT PORTION OF PARCEL 1 OF PARCEL
MAP 14081, AS PER MAP FILED IN BOOK 153 PAGES 19 AND 20 OF PARCEL MAPS, AS
CREATED AND GRANTED PURSUANT TO THAT CERTAIN DOCUMENT ENTITLED "DECLARATION
REGARDING EASEMENTS AND COVENANTS" RECORDED DECEMBER 28, 1984 AS INSTRUMENT
NO. 00-0000000, SUBJECT UPON THE TERMS AND CONDITIONS CONTAINED THEREIN.
Westlake, Westlake Village PAGE 27 OF 30
EXHIBIT C-16
LEGAL DESCRIPTION
XXXX 00 XX 00 XXXXXXXXX XX XXXXX 00000, IN THE CITY OF LOS ANGELES, AS PER MAP
RECORDED IN BOOK 737 PAGES 33 TO 35 INCLUSIVE OF MAPS IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
Woodland Hills Financial Center, Woodland Hills
PAGE 28 OF 30
EXHIBIT C-17
LEGAL DESCRIPTION
A FEE, AS TO PARCEL A; AND
A LEASEHOLD ESTATE CREATED BY THAT CERTAIN UNRECORDED LEASE DATED FEBRUARY 21,
1992, EXECUTED BY ANAHEIM REDEVELOPMENT AGENCY, A PUBLIC BODY, CORPORATE AND
POLITIC, AS LESSOR, AND FIRST INTERSTATE MORTGAGE COMPANY, A CALIFORNIA
CORPORATION, AS LESSEE, FOR THE TERM, AND UPON THE TERMS, COVENANTS AND
CONDITIONS PROVIDED THEREIN, AS DISCLOSED BY A MEMORANDUM OF LEASE RECORDED
NOVEMBER 22, 1994 AS INSTRUMENT NO. 00-0000000 OF OFFICIAL RECORDS, AS TO
PARCEL B.
SAID LEASE WAS AMENDED BY FIRST AMENDMENT DATED NOVEMBER 15, 1994,
AS DISCLOSED BY SAID MEMORANDUM OF LEASE.
THE LESSEE'S INTEREST UNDER SAID LEASE HAS BEEN ASSIGNED TO 222
HARBOR ASSOCIATES, LLC., A NEVADA LIMITED LIABILITY COMPANY BY ASSIGNMENT WHICH
RECORDED NOVEMBER 22, 1994 AS INSTRUMENT NO. 94-675689 OF OFFICIAL RECORDS,
REFERENCE BEING HEREBY MADE TO THE RECORD THEREOF FOR FULL PARTICULARS.
: THE INTEREST OF 222 HARBOR ASSOCIATES, LLC., A NEVADA LIMITED
LIABILITY COMPANY HAS SINCE PASSED TO ARDEN REALTY LIMITED PARTNERSHIP, A
MARYLAND LIMITED PARTNERSHIP BY ARTICLES OF MERGER WHICH RECORDED OCTOBER 11,
1996 AS INSTRUMENT NO. 19960520238.
THE INTEREST OF LESSEE UNDER SAID LEASE HAS BEEN FURTHER ASSIGNED TO
ARDEN REALTY FINANCE PARTNERSHIP, L.P., A CALIFORNIA LIMITED PARTNERSHIP, BY
THAT CERTAIN ASSIGNMENT AND ASSUMPTION OF LEASE RECORDED ON OR ABOUT JUNE 12,
1997.
Anaheim City Centre, Anaheim
PAGE 29 OF 30
PARCEL A:
PARCEL 1 OF PARCEL MAP NO. 84-229, AS SHOWN ON A MAP FILED IN BOOK 194, PAGES
22 AND 23 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT ALL OIL, GAS AND MINERAL SUBSTANCES, TOGETHER WITH THE RIGHT TO EXPLORE
FOR AND EXTRACT SUCH SUBSTANCES, PROVIDED THAT THE SURFACE OPENING OF ANY
WELL, HOLE, SHAFT OR OTHER MEANS OF EXPLORING FOR, REACHING, OR EXTRACTING
SUCH SUBSTANCES SHALL NOT BE LOCATED WITHIN THE CITY OF ANAHEIM REDEVELOPMENT
PROJECT ALPHA, AS RECORDED IN BOOK 10812, PAGE 00 XX XXXXXX XXXXXX XXXXXXX,
XXXXX XX XXXXXXXXXX, AND SHALL NOT PENETRATE ANY PART OR PORTION OF SAID
PROJECT AREA WITHIN 500 FEET OF THE SURFACE THEREOF, BY INSTRUMENT NO.
86-530706, OFFICIAL RECORDS.
PARCEL B:
PARCEL 1 OF PARCEL MAP NO. 86-142, AS SHOWN ON A MAP FILED IN BOOK 232, PAGES
15 THROUGH 19 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
EXCEPTING AND RESERVING TO THE OWNERS THEREOF ALL OIL, GAS AND MINERAL
SUBSTANCES, TOGETHER WITH THE RIGHT TO EXPLORE FOR AND EXTRACT SUCH
SUBSTANCES, PROVIDED THAT THE SURFACE OPENING OF ANY WELL, HOLE, SHAFT, OR
OTHER MEANS OF EXPLORING FOR, REACHING OR EXTRACTING SUCH SUBSTANCES SHALL NOT
BE LOCATED WITHIN THE CITY OF ANAHEIM REDEVELOPMENT PROJECT ALPHA AS RECORDED
IN BOOK 10812, PAGE 00 XX XXXXXX XXXXXX XXXXXXX, XXXXX XX XXXXXXXXXX AND SHALL
NOT PENETRATE ANY PART OR PORTION OF SAID PROJECT AREA WITHIN 500 FEET OF THE
SURFACE THEREOF.
Anaheim City Centre, Anaheim
PAGE 30 OF 30
SCHEDULE D
ENGINEERING SURVEYS
Xxxxxxx Group, Inc. - All properties except 10350 Santa Xxxxxx
HNTB Corporation - 10350 Santa Xxxxxx
SCHEDULE 3.6
LEASE DEFAULTS
See certified rent rolls dated 06-09-97.
SCHEDULE 3.22
ENVIRONMENTAL REPORTS
To be attached.
SCHEDULE 3.23
EQUIPMENT LEASES
None.
SCHEDULE 3.25
LIENS
None.
Schedule 4.3.2 to
Loan Agreement
Mortgaged Properties
--------------------
1. 000 Xxxx Xxxxxxxx,
Xxxx Xxxxx XX
2. 00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxx Xxxxxxx, XX
3. 000 Xxxxxxxx Xxxxxxxxx,
Xxxxxxx, XX
4. 000 Xxxxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, XX
5. 000 Xxxx Xxxxxxxx,
Xxxxxxxx, XX
6. 0000 Xxxxx Xxxxxx,
Xxxxxxxxxx Xxxxx, XX
7. 0000 Xxxxxxxx (xxx Xxx Xxxxxxxx),
Xxx Xxxxxxx, XX
8. 00 Xxxxx Xxxx Xxxxxx,
Xxxxxxxx, XX
9. Xxxxxxx Atrium,
000 X. Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX
10. Bristol Plaza,
0000 Xxxxxxx Xxxxxxx
Xxxxxx Xxxx, XX
11. Burbank Executive Plaza
(000 Xxxx Xxxx Xxxxxxxxx and
000 Xxxxxxxx Xxxxxxxxx),
Xxxxxxx, XX
12. L.A. Corporate Center
(900, 1000, 1200 and
0000 Xxxxxxxxx Xxxxxx Xxxxx),
Xxxxxxxx Xxxx, XX
13. 00000 Xxxx Xxxxxxxx Xxxxxxx,
Xxxxxxx, XX
14. Skyview Center,
0000 X. Xxxxxxx Xxxxxxxxx,
0000 X. 00xx Xxxxxx,
xxxxxxx xxx
Xxx Xxxxxxx, XX
15. 0000 Xxxxxxx Xxxxxx Xxxxxxxxx,
Xxxxxxxx Xxxxxxx, XX
16. Woodland Hills Financial Center
(21021 and 00000 Xxxxxxx Xxxxxxxxx)
Xxxxxxxx Xxxxx, XX
17. 000 Xxxxx Xxxxxx Xxxxxxxxx,
Xxxxxxx, XX
SCHEDULE 5.11
See attached.
CASH MANAGEMENT PROCEDURES
Certain capitalized terms used in this SCHEDULE 5.11 are defined in
SECTION 9 hereof. Other capitalized terms not defined herein shall have the
meanings ascribed to them in the Loan Agreement. References to Sections refer
to Sections of this SCHEDULE 5.11, unless otherwise specified.
1. DEPOSIT OF OPERATING RECEIPTS INTO LOCKBOX ACCOUNT
1.1 Upon the occurrence of a Lockbox Event, Lender will establish
the on account, one or more segregated deposit accounts (collectively, the
"LOCKBOX ACCOUNT") as an Eligible Account in the name of Lender (or, if the
Securitization has occurred, the Servicer will establish the Lockbox Account in
its name on behalf of the Trustee), at a financial institution (the "LOCKBOX
BANK") selected by Lender (or the Servicer, as applicable) into which all
Operating Receipts from the Mortgaged Properties shall be deposited. The
Lockbox Account shall be under the sole dominion and control of Lender (or the
Servicer, as applicable).
1.2 Upon the occurrence of a Lockbox Event, Borrower, or Manager
on behalf of Borrower, will notify tenants under Leases and any other Persons
from whom Borrower has accounts receivable, in their billing statements or
otherwise, that all payments owing to Borrower should be sent to the Lockbox
Account. Borrower and Manager will cause all Operating Receipts received
directly by Borrower, or by Manager or any other Person on behalf of Borrower,
notwithstanding such instructions, to be deposited within one Business Day after
receipt thereof and identification as belonging to Borrower, into the Lockbox
Account. Any Operating Receipts received directly by Borrower, or Manager or
any other Person on behalf of Borrower, and not yet deposited into the Lockbox
Account, shall irrevocably be deemed to be held in trust for the benefit of
Lender (or, if the Securitization has occurred, the Trustee) and shall,
immediately upon receipt and identification as belonging to Borrower (and in no
event later than one full Business Day after receipt and identification as
belonging to Borrower), be deposited by Borrower, Manager, or such other Person,
as applicable, into the Lockbox Account.
2. DISBURSEMENTS FROM LOCKBOX ACCOUNT
All funds received into the Lockbox Account shall be disbursed to
Lender (or, if the Securitization has occurred, the Servicer), within one
Business Day after deposit into the Lockbox Account, and deposited into the Cash
Collateral Account. Lender (or, if the Securitization has occurred, the
Servicer) shall disburse and apply such funds in accordance with the provisions
of SECTION 4.4 or SECTION 4.5, as applicable.
3. TAX AND INSURANCE ESCROWS
3.1 On or prior to the date of the Securitization, Borrower will
be required to establish and maintain with Lender, as a subaccount of the Cash
Collateral Account, an escrow account (the "TAX AND INSURANCE ESCROW ACCOUNT")
for payment of the next succeeding payments of all insurance premiums (including
property, liability, and other insurance, but not including workers compensation
insurance) and real estate taxes coming due for each Mortgaged Property, which
account shall be controlled by Lender. The Tax and Insurance Escrow Account
will be funded (i) prior to the occurrence of a Lockbox Event, by Borrower
paying to Lender on each Due Date (in addition to the payment of Monthly Debt
Service and any other amounts due on such Due Date) an amount such that the
aggregate balance in the Tax and Insurance Escrow Account is equal, with respect
to each tax payment and insurance premium next coming due with respect to each
Mortgaged Property, to the product of (x) the amount of the tax payment or
insurance premium next coming due (or the most recent tax payment or insurance
premium, if the amount of the next tax payment or insurance premium is unknown)
times (y) a fraction, the numerator of which is the number of whole Accounting
Periods since the date of the last payment of the applicable tax payment or
insurance premium and the denominator of which is the number of whole Accounting
Periods from the date of the last payment of the applicable tax payment or
insurance premium to the date the next payment of such tax payment or insurance
premium is due and (ii) thereafter, from cash on deposit in the Cash Collateral
Account on any Due Date in accordance with the provisions of SECTION 4.4(A)
hereof, such that the aggregate balance in the Tax and Insurance Escrow Account
is equal, with respect to each tax payment or insurance premium next coming due
with respect to each Mortgaged Property, to the product of (x) the amount of the
tax payment or insurance premium next coming due (or the most recent tax payment
or insurance premium, if the amount of the next tax payment or insurance premium
is unknown) times (y) a fraction, the numerator of which is the number of whole
Accounting Periods since the date of the last payment of the applicable tax
payment or insurance premium and the denominator of which is the number of whole
Accounting Periods from the date of the last payment of the applicable tax
payment or insurance premium to the date the next payment of such tax payment or
insurance premium is due.
3.2 Provided that the necessary invoices or bills have been
provided to Lender by the Manager or Borrower, Lender will pay directly all real
estate taxes and insurance premiums from amounts on deposit in the Tax and
Insurance Escrow Account (or, if such amounts are insufficient, from other
amounts available in the Cash Collateral Account which would otherwise have been
distributed to Borrower pursuant to SECTION 4.4 or from additional funds
deposited by Borrower into the Cash Collateral Account for such purpose), and
Borrower will be relieved of any such obligation.
3.3 Upon acceleration of the maturity of the Mortgage Note
following an Event of Default, the Lender shall be entitled to apply the funds
held in such escrows to payment of the Mortgage Note.
4. CASH COLLATERAL ACCOUNT
4.1 On or before the date of the Securitization, Lender shall
establish and maintain one or more segregated deposit accounts in the name of
Lender (or, if the Securitization has occurred, the Servicer will establish and
maintain one or more segregated accounts in its name on behalf of the Trustee),
which must be Eligible Accounts (collectively, the "CASH COLLATERAL ACCOUNT"),
into which all amounts received by Lender from the Lockbox Account and all other
funds of Borrower (other than funds held in the Reserve Account) that are to be
held as security for the Loan shall be deposited. The Cash Collateral Account
shall be under the sole dominion and control of Lender (or, if the
Securitization has occurred, the Servicer) and shall be entitled " Arden Realty
Finance Partnership, L.P. (or such similar designation), as Borrower, and Xxxxxx
Brothers Realty Corporation, as Lender (or, if the Securitization has occurred,
________________, as Servicer) pursuant to Loan Agreement dated as of June 11,
1997 - Cash Collateral Account" (or similar appropriate designation).
4.2 From time to time, Lender may establish one or more segregated
subaccounts of the Cash Collateral Account into which (a) Insurance Proceeds
held by Lender in accordance with the Mortgage shall be deposited, (b) certain
payments of Awards held by Lender pursuant to the Mortgage shall be deposited,
(c) funds of Borrower held pending completion of capital improvements in
accordance with the Mortgage shall be deposited, and (d) payments into the Tax
and Insurance Escrow Account required by SECTION 3 of this SCHEDULE 5.11 shall
be made. All Awards and Insurance Proceeds (except Awards and Insurance
Proceeds that Borrower is permitted to retain under the terms of the applicable
Mortgage) will be deposited into the appropriate subaccount to be disbursed by
Lender in the manner contemplated by the Mortgage.
4.3 Lender shall withdraw from the Cash Collateral Account the
amounts described elsewhere in this SCHEDULE 5.11, the Loan Agreement, or any
other Loan Document and apply such amounts as provided in such documents.
4.4 So long as no Event of Default has occurred, all funds on
deposit in the Cash Collateral Account shall be applied on each Due Date (or, in
the event such Due Date is not a Business Day, on the immediately preceding
Business Day) in the following order of priority, and to the extent of available
funds:
(A) to fund any deficiency in the Tax and Insurance Escrow
Account;
(B) to pay on such Due Date (i) the Monthly Debt Service
Payment due and payable on such Due Date, (ii) reimbursements of
expenses (including, without limitation, of the Trustee and the
Servicer) that Borrower is required to pay pursuant to SECTION 12.7.1
of the Loan Agreement and (iii) all other Debt (including without
limitation, Yield Maintenance Payments and Defeasance Deposits) then
due and payable under the Loan Agreement (other than amounts to be
applied pursuant to items (C)-(J) below);
(C) to the Reserve Account, to the extent the balance of the
Reserve Account is less than the Reserve Requirement;
(D) prior to Anticipated Repayment Date, to pay Default
Interest, if any, and Late Payment Fees, if any, then due and owing;
(E) on or after the Anticipated Repayment Date, payments for
monthly Cash Expenses incurred in accordance with the related Approved
Annual Budget pursuant to a written request for payment submitted by
Borrower to Lender specifying the individual Cash Expenses in a form
acceptable to Lender;
(F) on or after the Anticipated Repayment Date, payments for
Extraordinary Expenses approved by Lender, if any;
(G) prior to the Anticipated Repayment Date, payment of any
excess amounts to Borrower.
(H) on or after the Anticipated Repayment Date, payments to
Lender in reduction of the outstanding principal balance of the
Mortgage Note (which application shall constitute application of
Excess Cash Flow pursuant to SECTION 2.4.4(C) of the Loan Agreement)
until the outstanding principal balance of the Mortgage Note has been
reduced to zero ($0);
(I) on or after the Anticipated Repayment Date and after the
outstanding principal balance of the Mortgage Note has been reduced to
zero ($0), payments to Lender in reduction of the outstanding amount
of Accrued Interest (and interest thereon) (which application shall
constitute application of Excess Cash Flow pursuant to
SECTION 2.4.4(c) of the Loan Agreement); and
(J) on or after the Anticipated Repayment Date, to pay
Default Interest, if any, and Late Payment Fees, if any, then due and
owing.
The insufficiency of funds on deposit in the Cash Collateral Account
shall not absolve Borrower of the obligation to make any payments, as and when
due pursuant to this Agreement and the other Loan Documents, and such
obligations shall be separate and independent, and not conditioned on any event
or circumstance whatsoever.
4.5 Upon the occurrence, and during the continuation, of an Event of
Default, Lender shall be entitled to apply all funds then held in the Cash
Collateral Account and all funds thereafter deposited into the Lockbox Account
and transferred to the Cash Collateral Account to the payment of the amounts
then owing under the Loan Documents, in such order and priority as is required
or permitted by the Loan Agreement, the Mortgage Note, the Security Documents,
and the other Loan Documents and applicable law. Notwithstanding the foregoing,
Lender may elect to pay Operating Expenses pursuant to procedures established by
Lender in its sole discretion at such time.
5. RESERVE ACCOUNT
5.1 On or before the Closing Date, Lender will establish and
maintain a segregated deposit account, which shall be an Eligible Account in the
name of Borrower (or if the Securitization has occurred, the Servicer will
establish a segregated account in its name on behalf of the Trustee) at a bank
selected by Lender (the "RESERVE ACCOUNT"), into which Borrower shall deposit
the funds required by SECTION 4.10 of the Loan Agreement.
5.2 So long as no Event of Default has occurred and is
continuing, Borrower, or Manager on behalf of Borrower, shall be permitted to
request disbursements from the Reserve Account from time to time to pay for
(i) leasing commissions or tenant improvements under Leases approved by
Lender under SECTION 1.20.11.3 of the Mortgage or (ii) to pay for capital
expenditures approved by Lender (collectively, "APPROVED RESERVE
EXPENDITURES") upon the submission to Lender of (a) a certificate of Borrower
stating that (i) the amounts requested are necessary for Approved Reserve
Expenditures, (ii) all funds that it previously has withdrawn from the
Reserve Account pursuant to this SECTION 5.2 have been used to pay Approved
Reserve Expenditures, (iii) that, there are no accounts payable of the
Mortgaged Properties for Approved Reserve Expenditures with an unpaid balance
of more than $25,000 individually, or more than $100,000 in the aggregate,
that are more than 60 days past due (unless payment is being contested in
good faith in accordance with the applicable procedures in the Loan
Agreement), and (iv) Borrower has insufficient funds to pay such Approved
Reserve Expenditures (or has been unable to obtain Permitted Debt to pay for
Approved Reserve Expenditures and (b) a schedule setting forth the names of
the payees and amounts to be paid out of the proceeds of such disbursement.
Notwithstanding the foregoing, at any time, and from time to time and
provided that no Event of Default has occurred and is continuing, Borrower
shall have the right to withdraw any amounts above the Reserve Requirement on
deposit in the Reserve Account, and provided, further, if an Event of Default
has occurred and is continuing, Borrower shall have the right to withdraw any
amounts above the Reserve Requirement which relate to, or have accrued during
the time period commencing prior to the occurrence of the Event of Default,
in either case, provided that after such disbursement, the balance of the
Reserve Account shall not be less than the Reserve Requirement.
5.3 Upon the receipt of a request from Borrower or Manager for a
disbursement from the Reserve Account in accordance with SECTION 5.2 of this
SCHEDULE 5.11, Lender shall disburse the requested amount by automated
clearinghouse funds or by Federal wire no later than the next Business Day.
5.4 In the event any payment of Monthly Debt Service is not paid
when due, Lender may make withdrawals from the Reserve Account to pay such
Monthly Debt Service payment. Payment of Monthly Debt Service pursuant to this
SECTION 5.4 is not a permitted alternative to timely payment or full performance
by Borrower and shall not constitute a waiver of any Default or Event of Default
or an amendment to this SCHEDULE 5.11, the Loan Agreement or any other Loan
Document and shall not otherwise prejudice or limit any rights or remedies of
Lender.
6. SECURITY FOR MORTGAGE LOAN
The funds on deposit in the Lockbox Account, the Reserve Account,
and the Cash Collateral Account and each subaccount thereof, and all Permitted
Investments thereof, are pledged to Lender as further security for the Loan
pursuant to the Security Agreement.
7. INVESTMENT OF FUNDS IN ACCOUNTS
Borrower shall have the right to instruct Lender to invest funds,
if any, in the Cash Collateral Account and the Reserve Account, at the risk of
and for the benefit of Borrower, in Permitted Investments.
8. GENERAL
8.1 Lender shall cause Manager and Borrower to have access to
information each Business Day regarding activity and balances in the Cash
Collateral Account, the Reserve Account, and the Lockbox Account.
8.2 Unless the context specifies otherwise, transfers of funds
held in any Account that are required by this Agreement shall require only the
transfer of available funds.
8.3 Nothing in this SCHEDULE 5.11 shall relieve Borrower of its
obligations to make all payments due under the Mortgage Note and the other Loan
Documents when due and payable.
9. CERTAIN DEFINITIONS
As used in this SCHEDULE 5.11, the following terms have the meanings
set forth below:
"APPROVED RESERVE EXPENDITURES" has the meaning specified in SECTION
5.2 of this SCHEDULE 5.11.
"CASH COLLATERAL ACCOUNT" has the meaning specified in SECTION 4.1
of this SCHEDULE 5.11.
"CASH EXPENSES" has the meaning ascribed to such term in the Loan
Agreement.
"DEBT SERVICE COVERAGE RATIO" has the meaning ascribed to such term
in the Loan Agreement.
"EXTRAORDINARY EXPENSES" has the meaning ascribed to such term in
the Loan Agreement.
"LOCKBOX ACCOUNT" has the meaning specified in SECTION 1.1 of
this SCHEDULE 5.11.
"LOCKBOX BANK" has the meaning specified in SECTION 1.1 of this
SCHEDULE 5.11.
"LOCKBOX EVENT" means the occurrence of any one or more of the
following: (i) the Debt Service Coverage Ratio for any four consecutive
Accounting Quarters falls below 1.5 to 1.00; (i) Borrower shall fail to deliver
to Lender a written commitment for the refinancing of the Loan from a Qualified
Institutional Lender on or before the date that is three months prior to the
Anticipated Repayment Date; (iii) Borrower shall fail to repay the Loan on or
before the Anticipated Repayment Date; or (iv) the occurrence of an Event of
Default under the Loan Agreement.
"OPERATING RECEIPTS" means Gross Income from Operations from
operation of the Mortgaged Properties received by or on behalf of Borrower in
the form of cash.
"QUALIFIED INSTITUTIONAL LENDER" means a financial institution or
other lender with a long-term unsecured debt rating that is not lower than [BBB]
by S&P and an equivalent rating from each of the other Rating Agencies if rated
by such Rating Agencies.
"TAX AND INSURANCE ESCROW ACCOUNT" has the meaning specified in
SECTION 3.1 of this SCHEDULE 5.11.
EXHIBIT A
MORTGAGE NOTE
$175,000,000.00 June 11, 1997
FOR VALUE RECEIVED, the undersigned, ARDEN REALTY FINANCE
PARTNERSHIP, L.P., a California limited partnership ("MAKER"), promises to pay
to the order of XXXXXX BROTHERS REALTY CORPORATION, a Delaware corporation, its
successors and assigns ("HOLDER"), at such place as Holder may from time to time
designate in writing, the principal sum of ONE HUNDRED SEVENTY-FIVE MILLION AND
NO/100 DOLLARS ($175,000,000.00) in lawful money of the United States of
America, together with interest thereon, to be computed and paid as specified in
SECTION 1 below.
Except as otherwise defined or limited herein, capitalized terms
used herein shall have the meanings ascribed to them in that certain Loan
Agreement (the "LOAN AGREEMENT") dated as of the date hereof by and between
Maker and Holder. This is the Mortgage Note referred to in the Loan Agreement.
1. PAYMENTS OF PRINCIPAL AND INTEREST.
1.1 INTEREST ; MATURITY DATE
The outstanding principal balance hereof from time to time
shall bear interest (a) prior to June 11, 2004 (the "ANTICIPATED REPAYMENT
DATE"), at a rate per annum equal to seven and 52/100 percent (7.52%) (the
"BASE RATE") and (b) from and after June 11, 2004, at a rate per annum (the
"ADJUSTED INTEREST RATE") equal to the greater of (i) seven and 52/100
percent (7.52%) plus two percentage points (2%) and (ii) the sum of (A) three
percentage points (3%) and (B) the average, calculated by linear
interpolation (rounded to three decimal places), of the yields of the United
States Treasury Constant Maturities with the terms (one longer and one
shorter) most nearly approximating those of U.S. Obligations having
maturities as close as possible to the seventh anniversary of the Anticipated
Repayment Date, as determined by the Holder on the basis of Federal Reserve
Statistical Release H.15-Selected Interest rates under the heading
U.S. Governmental Security/Treasury Constant Maturities, or such other
recognized source of financial market information as may reasonably be
selected by the Holder, in each case on the last Business Day of the week
immediately prior to the Anticipated Repayment Date. Interest accrued from
the date hereof to (but excluding) July 10, 1997 shall be due and payable on
July 10, 1997. Thereafter, payments of interest and other amounts to be paid
hereunder shall be made, in arrears, on the tenth (10th) day of each calendar
month, or, if in any calendar month the tenth (10th) day is not a Business
Day, the Business Day preceding the tenth (10th) day, commencing August 10,
1997 (each, a "DUE DATE") for the period (the "DEBT SERVICE PERIOD") beginning
on (and including) the tenth (10th) day of the calendar month immediately
preceding the month in which such Due Date occurs, through (but excluding)
the Due Date. Interest shall be computed on the basis of a 360 day year and
the actual number of days elapsed in each Debt Service Period.
On each Due Date after the Anticipated Repayment Date, Maker
shall continue to pay interest for the applicable Debt Service Period computed
at the Base Rate. Payment of all interest accruing in respect of this Mortgage
Note after the Anticipated Repayment Date in the amount equal to the difference
between the amount that accrues at the Adjusted Interest Rate and the amount
that is paid at the Base Rate ("ACCRUED INTEREST") shall be (a) deferred, and
(b) to the extent permitted by applicable law, accrue interest at the Adjusted
Interest Rate. If not sooner paid, all Accrued Interest together with interest
thereon (to the extent permitted by applicable law) shall be due and payable in
full on the Final Maturity Date (as defined below).
From and after the Anticipated Repayment Date and in accordance
with the Cash Management Procedures, Maker shall pay to Holder on each Due Date
(without duplication), until the entire Debt is repaid in full, Excess Cash Flow
for the Debt Service Period relating to such Due Date. Each monthly payment of
Excess Cash Flow made by Borrower under this Mortgage Note shall be applied
first to the reduction of the outstanding principal balance of this Mortgage
Note and after the principal balance of this Mortgage Note has been paid in
full, to the reduction of the outstanding amount of Accrued Interest (together
with any interest thereon).
The principal amount hereof shall be payable in a single balloon payment on June
10, 2012 (the "FINAL MATURITY DATE") equal to the outstanding principal balance
of this Mortgage Note, together with accrued and unpaid interest thereon through
June 10, 2012 (including any unpaid Accrued Interest and interest thereon).
1.2 PREPAYMENT RESTRICTIONS
On any Due Date occurring on or after the date that is three
(3) months prior to the Anticipated Repayment Date, all or any portion of the
principal balance hereof may be prepaid, at Maker's option, in full or in
part, without penalty or premium; PROVIDED, HOWEVER, that the requirements of
SECTION 2.10 of the Loan Agreement shall have been satisfied. In addition, a
portion of the principal amount hereof may be prepaid prior to the first day
of the Defeasance Period, upon satisfaction of the conditions in SECTION 2.7
of the Loan Agreement but without payment of a Yield Maintenance Payment, in
connection with a Casualty or Taking (PROVIDED THAT the Mortgage does not
require a Restoration of the applicable Mortgaged Property). Neither Holder
nor, following the Securitization, the Trustee or the Servicer shall be
required to accept or apply any prepayment requiring payment of a Yield
Maintenance Payment, as provided in this paragraph or in SECTION 1.3 hereof,
unless such prepayment is accompanied by the payment of such Yield
Maintenance Payment, and if any legal and other expenses are due and owing to
Holder, Trustee or Servicer in connection with such prepayment under the
terms of the Pooling and Servicing Agreement or any Loan Document, neither
Holder nor the Servicer shall be required to accept or apply any prepayment
unless the prepayment also is accompanied by the amount that is due and
payable to Holder, Trustee or Servicer with respect to such expenses. Except
as provided above, this Mortgage Note may not be prepaid.
1.3 YIELD MAINTENANCE
If (i) all or any part of the principal amount of the Loan is
prepaid after the Closing Date but prior to the last day of the Defeasance
Period as a result of the acceleration of
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the maturity of the Mortgage Note after an Event of Default, Maker shall be
required to pay a Yield Maintenance Payment equal to the greater of (A) 1% of
the amount of the principal prepayment that is to be applied to the outstanding
principal balance hereof and (B) the present value as of the end of the
applicable Debt Service Period, discounted at the Reinvestment Yield, of a
series of payments each equal to the Payment Differential on each of the
remaining Due Dates prior to and including the Anticipated Repayment Date, after
giving effect to the regularly scheduled payment of principal that is to be made
on the Prepayment Date. No Yield Maintenance Payment shall be required in
connection with prepayments made on or after the last day of the Defeasance
Period.
Promptly following acceleration of this Mortgage Note or
following the occurrence of any other event, the occurrence of which obligates
Maker to make a Yield Maintenance Payment, Holder shall notify Maker of the
amount and basis of determination of the Yield Maintenance Payment promptly upon
determining the Treasury Rate, as contemplated below. Absent manifest error,
the Maker shall not dispute Holder's calculations hereunder.
For purposes of this SECTION 1.3, the following terms shall have
the meanings ascribed to them below:
"PAYMENT DIFFERENTIAL" means, an amount equal to (x) the Base
Rate, minus the Reinvestment Yield, divided by (y) 12, and multiplied
by (z) the amount of the principal prepayment.
"REINVESTMENT YIELD" is the Treasury Rate converted to a monthly
compounded nominal annual yield.
"TREASURY RATE" is equal to the lesser of (A) the annual yield on
the United States Treasury issue (primary issue) with a maturity date
closest to the Final Maturity Date and (B) the annual yield on the
United States Treasury issue (primary issue) with a maturity equal to
the remaining average life of this Mortgage Note with each such yield
being based on the bid price for such issue as published in THE WALL
STREET JOURNAL on the date that is 14 days prior to (x) the applicable
Prepayment Date set forth in the notice of prepayment provided by the
Maker or (y) the date of acceleration by the Holder (or if such bid
price is not published on that date, the next preceding date on which
such bid price is so published).
1.4 METHOD OF PAYMENT; PAYMENTS ABSOLUTE
All payments due hereunder shall be made in legal currency of the
United States of America in immediately available federal funds by credit to the
Holder's account in the United States as announced by the Holder from time to
time in writing to Maker. If any payment is due on a day that is not a Business
Day, the date for payment thereof shall be extended to the next Business Day,
without additional interest, except that, if the Final Maturity Date is not a
Business Day, the date for payment of the amount, if any, that is due on the
Final Maturity Date shall be extended to the next succeeding Business Day, and
any interest payable thereon shall accrue and be payable for such extension of
time at the Adjusted Interest Rate.
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The terms of this Mortgage Note are hereby supplemented in full
by the terms of the Loan Agreement and the other Loan Documents.
2. SECURITY FOR THE LOAN.
This Mortgage Note is secured by, among other things,
17 Mortgaged Properties owned by Maker, including all assets of Maker related
thereto, pursuant to a Mortgage encumbering the Land, the Buildings located
thereon and other Improvements relating to such Buildings and granting a lien
on and security interest in certain other Property described therein, and by
other Security Documents effecting and granting a lien on and security
interest in other Collateral, including but not limited to, the Security
Agreement, the Assignment of Rents and Leases, and the Collateral Assignment
of Management Agreement.
3. EVENTS OF DEFAULT.
The entire outstanding principal balance of this Mortgage Note,
together with all accrued and unpaid interest thereon and all other sums due
hereunder or under any of the Loan Documents (all such sums, collectively, the
"DEBT"), or any portion thereof, shall without notice, except such notice as is
required under the terms of any Loan Document, become immediately due and
payable at the option of Holder: (a) if payments of principal, interest and
premium, if any, due hereunder are not made when due or (b) an Event of Default
shall have occurred and be continuing under the Loan Agreement (each of the
foregoing, an "EVENT OF DEFAULT"). In the event that Holder retains counsel to
collect all or any part of the Debt, or to protect or foreclose the security
provided in connection herewith, Maker agrees to pay reasonable costs of
collection incurred by Holder, including reasonable attorneys' fees.
4. DEFAULT INTEREST; LATE PAYMENT FEE.
Maker does hereby agree that, if any amount due hereunder is not
paid when due, including, without limitation, Maker's failure to pay the Debt in
full on the Maturity Date or on the date set for acceleration following an Event
of Default, Holder shall be entitled to receive, and Maker shall pay, to the
extent permitted by applicable law, interest to Holder on such past due amounts
beginning on the date such payment becomes past due at a rate of interest equal
to the lesser of (a) the greater of (i) the Base Rate plus three percentage
points (3%) (or, on and after the Anticipated Repayment Date, the Adjusted
Interest Rate plus three percentage points (3%)) and (ii) the Prime Rate plus
two percentage points (2%), and (b) the maximum rate of interest allowed to be
collected under applicable law.
In addition to Default Interest, in the event Borrower fails to
make any payment of interest, Yield Maintenance Payment or other payment
hereunder when due, Borrower shall be liable for the payment of a late charge
equal to five percent (5%) of the amount of the payment; provided, however,
prior to a Securitization, Borrower shall not be liable to pay such a late
payment fee the first time Borrower fails to make a Monthly Debt Service Payment
when due.
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5. LIMITATIONS ON RECOURSE.
Notwithstanding any contrary provision in this Mortgage Note or
any of the Loan Documents, it is hereby expressly agreed that, except as
otherwise provided in this SECTION 5 or in any section of any Loan Document that
is substantially similar to this SECTION 5, there shall be no recourse to the
assets of Maker or either of its Partners (other than against the Collateral
and any other property given as security for the payment of this Mortgage Note)
for (i) the payment of principal, interest, Defeasance Deposits, Yield
Maintenance Payments or other charges hereunder or for any other amount that is
or may become due and owing to Holder by Maker under this Mortgage Note or any
of the other Loan Documents or (ii) the performance or discharge of any covenant
or undertaking hereunder or under the other Loan Documents, and in the event of
any Event of Default hereunder or thereunder, Holder agrees to proceed solely
against the Collateral and any other property given as security for payment of
this Mortgage Note, and Holder shall not seek or claim recourse against Maker or
the General Partner (other than against the Collateral and any other property
given as security for payment of this Mortgage Note) for any deficiency or for
any personal judgment after a foreclosure of the lien of the Mortgage or other
Security Documents or for the performance or discharge of any covenants or
undertakings of Maker hereunder or under any other Loan Documents (except that
Maker may be made a party to a proceeding to the extent legally necessary for
the conduct of a foreclosure or the exercise of other similar remedies under the
Mortgage or other Security Documents). Notwithstanding the foregoing, nothing
contained in this SECTION 5 shall relieve Maker or the General Partner of any
personal liability for any loss, cost, expense, damage or liability arising or
resulting from (A) any breach of any representation or warranty made in the Loan
Agreement that was materially incorrect when made and that was made with
fraudulent intent, (B) any amount paid or distributed to the Partners, the
Manager or any Affiliate of any of them in violation of the provisions of the
Loan Documents, (C) fraud or breach of trust, including misapplication of Loan
proceeds or any Insurance Proceeds or Awards or other sums that are part of the
Collateral that may come into the possession or control of Maker or the General
Partner or any Affiliate of any of them, (D) liability under the Environmental
Indemnity Agreement or (E) following the occurrence of a Lockbox Event, the
willful failure of Maker to instruct Tenants of the Mortgaged Properties to make
payments of Rents into the Lockbox Account or the failure of Borrower or the
Manager to deposit payments of Rents received by Borrower or Manager into the
Lockbox Account promptly upon receipt thereof. It is hereby expressly agreed
that neither the General Partner nor any director, officer, shareholder, partner
or employee of Maker or the General Partner, nor the legal or personal
representative, successor or assign of any of the foregoing, nor any other
principal of Maker or the General Partner, whether disclosed or undisclosed,
shall have any personal liability under the Loan Agreement or any of the other
Loan Documents, except as personal liability may be specifically imposed upon
the General Partner in accordance with clauses (A), (B), (C), (D) or (E) of this
SECTION 5, and in no event shall any limited partner of Maker have any liability
whatsoever with respect to the Loan or any monetary obligations with respect
thereto, or any of the matters described in clause (A), (B), (C), (D) or (E)
above. It is the intention of the parties hereto that this SECTION 5 shall
govern every other provision of the Loan Documents and that the absence of
explicit reference to this SECTION 5 in any provision of the Loan Documents or
the absence of any Section similar to this SECTION 5 in any Loan Document shall
not be construed to deny the application of this SECTION 5 to such provision,
5
notwithstanding the presence of explicit reference to this SECTION 5 in other
provisions of the Loan Documents.
6. NO USURY.
It is expressly stipulated and agreed to be the intent of Maker
and Holder at all times to comply with applicable state law and with applicable
United States federal law (to the extent that it permits Holder to contract for,
charge, take, reserve, or receive a greater amount of interest than under state
law) and that this Section shall control every other covenant and agreement in
this Mortgage Note and the other Loan Documents. If the applicable law (state
or federal) is ever judicially interpreted so as to render usurious any amount
called for under this Mortgage Note or under any of the other Loan Documents, or
contracted for, charged, taken, reserved, or received with respect to the Debt,
or if Holder's exercise of the option to accelerate the maturity of this
Mortgage Note, or if any prepayment by Maker results in Maker having paid any
interest in excess of that permitted by applicable law, then it is Maker's and
Holder's express intent that all excess amounts theretofore collected by Holder
shall be credited to the principal balance hereof and all other debt in the
order specified above (or, if this Mortgage Note and all other Debt have been or
would thereby be paid in full, shall be refunded to Maker), and the provisions
of this Mortgage Note and the other Loan Documents shall immediately and
automatically be deemed to be reformed, and the amounts thereafter collectible
hereunder and thereunder reduced, without the necessity of the execution of any
new documents, so as to comply with the applicable law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder or thereunder.
All sums paid or agreed to be paid to Holder for the use, forbearance, or
detention of the Debt shall, to the fullest extent permitted by applicable law,
be amortized, prorated, allocated, and spread throughout the full stated term of
the Debt until payment in full so that the rate or amount of interest on account
of the Debt does not exceed the maximum lawful rate from time to time in effect
and applicable to the Debt for so long as the Debt is outstanding.
7. AUTHORITY.
Maker represents that Maker has full power, authority and legal
right to execute and deliver this Mortgage Note and to perform its obligations
hereunder, and that this Mortgage Note constitutes the valid and binding
obligation of Maker, enforceable against Maker in accordance with its terms,
except as enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting the
enforcement of creditors' rights generally and (ii) general principles of
equity, regardless of whether considered in proceedings at law or in equity.
8. NOTICES.
All notices or other communications required or permitted to be
given pursuant hereto shall be given in the manner specified in the Loan
Agreement directed to the parties at their respective addresses as provided
therein.
6
9. WAIVER OF JURY TRIAL.
MAKER, AND BY ACCEPTANCE HEREOF, HOLDER, EACH (1) COVENANTS AND
AGREES NOT TO ELECT TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY A JURY, AND
(2) WAIVES ANY RIGHTS TO TRIAL BY JURY TO THE FULL EXTENT THAT ANY SUCH RIGHT
SHALL NOW OR HEREAFTER EXIST. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS
SEPARATELY GIVEN, KNOWINGLY AND VOLUNTARILY, BY EACH PARTY HERETO, AND THIS
WAIVER IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO
WHICH THE RIGHT TO A JURY TRIAL WOULD OTHERWISE ACCRUE. THE PARTIES ARE HEREBY
AUTHORIZED TO SUBMIT THIS MORTGAGE NOTE TO ANY COURT HAVING JURISDICTION OVER
THE SUBJECT MATTER TO BE TRIED SO AS TO SERVE AS CONCLUSIVE EVIDENCE OF THE
OTHER PARTY'S HEREIN CONTAINED WAIVER OF THE RIGHT TO JURY TRIAL. FURTHER, EACH
PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE OF THE OTHER PARTY (INCLUDING SUCH
OTHER PARTY'S COUNSEL) HAS REPRESENTED, EXPRESSLY OR OTHERWISE, TO THAT PARTY,
THAT THE OTHER PARTY WILL NOT SEEK TO ENFORCE THIS WAIVER BY SUCH CERTIFYING
PARTY OF THE RIGHT TO A JURY TRIAL.
10. GOVERNING LAW.
This Mortgage Note shall be governed by and construed under and
in accordance with the laws of the State of New York, excluding the choice of
law rules thereof.
11. MISCELLANEOUS.
(a) No release of any security for the Debt or any person liable
for payment of the Debt, no extension of time for payment of this Mortgage Note
or any installment hereof, and no alteration, amendment or waiver of any
provision of the Loan Documents made by agreement between Holder and any other
person or party shall release, modify, amend, waive, extend, change, discharge,
terminate or affect the liability of Maker or any other person or party who
might be or become liable for the payment of all or any part of the Debt, under
the Loan Documents.
(b) Maker and all others who may become liable for the payment
of all or any part of the Debt do hereby severally waive presentment and demand
for payment, notice of dishonor, protest, notice of protest, notice of
non-payment, and notice of intent to accelerate the maturity hereof and of
acceleration.
(c) This Mortgage Note may not be modified, amended, waived,
extended, changed, discharged or terminated orally or by any act or failure to
act on the part of Maker or Holder, but only by an agreement in writing signed
by the party against whom enforcement of any modification, amendment, waiver,
extension, change, discharge or termination is sought.
7
(d) Whenever used, the singular number shall include the plural,
the plural the singular, and the words "Holder" and "Maker" shall include their
respective successors, assigns, heirs, executors and administrators.
IN WITNESS WHEREOF, Maker has duly executed or has caused its
duly authorized officer to execute this Mortgage Note on its behalf, as of the
day and year first above written.
MAKER:
ARDEN REALTY FINANCE PARTNERSHIP,
L.P.
By: Arden Realty Finance, Inc.,
its general partner
By: /s/ Xxxxx X. Xxxxx
------------------------------
Its: Chief Financial Officer
-----------------------------
8
EXHIBIT B
Recording Requested By: |
First American Title Insurance Company |
|
|
When recorded mail document to: |
|
Xxxxx & Xxxxxxx L.L.P. |
Suite 1100 |
0000 Xxxxxxxxxx Xxxxx x
XxXxxx, Xxxxxxxx 00000 |
|
Attention: Xxx X. Xxxxxx, Esq. |
--------------------------------------------------------------------------------
SPACE ABOVE THIS LINE RESERVED FOR
RECORDER'S USE
TITLE(S)
--------------------------------------------------------------------------------
DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES,
SECURITY AGREEMENT AND FIXTURE FILING
--------------------------------------------------------------------------------
DEED OF TRUST,
ASSIGNMENT OF RENTS AND LEASES,
SECURITY AGREEMENT, AND
FIXTURE FILING
Dated as of June 11, 1997
Made by
ARDEN REALTY FINANCE PARTNERSHIP, L.P.
as Grantor,
to
FIRST AMERICAN TITLE INSURANCE COMPANY
as Trustee
for the benefit of
XXXXXX BROTHERS REALTY CORPORATION
as Beneficiary
TABLE OF CONTENTS
PAGE
----
RECITALS ........................................................ 1
GRANTING CLAUSES ................................................ 2
1. COVENANTS, REPRESENTATIONS AND WARRANTIES ............................... 5
1.1 Payment of Mortgage Note; Performance of Other Obligations....... 5
1.2 General Representations, Warranties and Covenants................ 5
1.2.1 Authority, Enforceability, Etc. ........................ 5
1.2.2 No Defaults ............................................ 5
1.2.3 No Litigation .......................................... 5
1.2.4 Compliance with Law, Etc. .............................. 6
1.2.5 Good Title ............................................. 6
1.2.6 Covenant of Title ...................................... 7
1.2.7 Negative Pledge ........................................ 7
1.2.8 Necessary Permits ...................................... 7
1.2.9 Flood Zone ............................................. 7
1.2.10 Separate Tax Lot; Assessments .......................... 7
1.3 Title Insurance ................................................. 7
1.4 Recordation; Preservation of Lien ............................... 8
1.5 Taxes, Liens, and Permitted Encumbrances ........................ 8
1.5.1 Taxes .................................................. 8
1.5.2 Liens; Permitted Encumbrances .......................... 8
1.5.3 Permitted Contests ..................................... 9
1.5.4 No Credit for Payment of Taxes or Impositions .......... 9
1.6 Care of the Property ............................................ 9
1.6.1 Condition of the Property .............................. 9
1.6.2 Alterations; Building Only ............................. 10
1.6.3 Right to Inspect ....................................... 10
1.6.4 Compliance with Laws and Covenants ..................... 10
1.7 Insurance ....................................................... 10
1.7.1 Risks to Be Insured .................................... 10
1.7.2 Qualified Insurers ..................................... 11
1.7.3 Policy Provisions ...................................... 11
1.7.4. Delivery of Certificates ............................... 12
1.7.5. No Separate Insurance .................................. 13
1.8. Damage to or Destruction of Property ............................ 13
1.8.1. Notice ................................................. 13
1.8.2. Restoration ............................................ 13
1.8.3. Application of Insurance Proceeds or Awards ............ 14
1.9. Condemnation .................................................... 14
1.9.1. Grantor to Give Notice, Etc. ........................... 14
1.9.2. Total and Substantial Taking ........................... 15
1.9.3. Partial and Temporary Taking ........................... 15
1.10 Notices Concerning the Property ................................. 16
1.11 Alterations ..................................................... 16
1.11.1 Alteration Conditions .................................. 16
1.11.2 Right to Inspect ....................................... 16
1.11.3 Cooperation ............................................ 17
1.12. Indemnification by the Grantor .................................. 17
1.13. Expenses ........................................................ 17
1.14. Monthly Escrow Deposits ......................................... 18
1.15 Further Assurances .............................................. 18
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1.16 Additions to Security ........................................... 18
1.17. U.C.C. Security Agreement and Fixture Filing .................... 19
1.17.1 Grant of Security .................................... 19
1.17.2. Financing Statements ................................. 19
1.17.3. Multiple Remedies .................................... 19
1.17.4. Waiver of Rights ..................................... 19
1.17.5. Expenses of Disposition of the Properties ............ 19
1.17.6. Fixture Filing ....................................... 20
1.18. Ground Leases ................................................... 20
1.18.1. Ground Lease ......................................... 20
1.18.2. No Amendments ........................................ 20
1.18.3. Legal Actions under Agreements ....................... 21
1.18.4 Right to Cure ........................................ 21
1.18.5. Notice of Arbitration or Appraisal ................... 21
1.18.6. Additional Ground Lease Provisions ................... 21
1.18.6.1 ...................................................... 21
1.18.6.2 ...................................................... 22
1.18.6.3 ...................................................... 22
1.18.6.4 ...................................................... 22
1.18.6.5 ...................................................... 22
1.18.6.6 ...................................................... 23
1.18.7 Representations and Warranties Regarding Ground Lease. 23
1.19. Compliance with Access Laws ..................................... 23
1.20 Assignment of Rents and Grantor's Interest in Leases; Lease
Covenants ..................................................... 23
1.20.1. Assignment and License ............................... 23
1.20.2. Rights and Powers Assigned ........................... 24
1.20.3. No Set-Off ........................................... 24
1.20.4. Termination of License ............................... 24
1.20.5. Right to Collect Upon Event of Default ............... 25
1.20.6. Leases Unaffected ................................... 25
1.20.7. Inconsistent Actions Void ............................ 25
1.20.8. Satisfaction and Release ............................. 25
1.20.9. No Obligations ....................................... 25
1.20.10. Rights in Litigation and Bankruptcy .................. 26
1.20.11. Additional Lease Provisions .......................... 26
1.20.11.1 ..................................................... 26
1.20.11.2 ..................................................... 26
1.20.11.3 ..................................................... 27
1.20.11.4 ..................................................... 27
1.20.11.5 ..................................................... 27
1.20.11.6 ..................................................... 27
1.20.11.7 ..................................................... 28
1.20.11.8 ..................................................... 28
1.20.11.9 ..................................................... 28
1.20.12. Assignment to Beneficiary Controlling ................ 28
1.21. Environmental Covenants and Representations ..................... 28
1.21.1 ........................................................ 28
1.21.2 ........................................................ 28
1.21.3 ........................................................ 29
1.21.4 ........................................................ 29
1.21.5 ........................................................ 29
1.21.6 ........................................................ 29
1.21.7 ........................................................ 29
1.21.8 ........................................................ 29
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1.22. Release ......................................................... 29
1.22.1. Satisfaction of Obligations ........................... 29
1.22.2. Release of Building; Partial Releases ................. 30
1.23. Transfers, Indebtedness and Subordinate Liens ................... 30
1.23.1. Transfers ............................................. 30
1.23.2. Indebtedness .......................................... 30
1.23.3. Additional Permitted Transfers ........................ 30
1.23.4. Delivery of Documents to the Beneficiary .............. 31
1.24. Utility Services ................................................ 31
2. EVENTS OF DEFAULT ....................................................... 31
2.1. Payment Default ................................................. 31
2.2. Material Breach of Representation and Warranty .................. 32
2.3. Material Breach of Covenant ..................................... 32
2.4. Event of Default Under Loan Agreement ........................... 32
2.5. Ground Lease .................................................... 32
3. REMEDIES ................................................................ 32
3.1. Legal Proceedings; Cost of Enforcement .......................... 32
3.1.1. Legal Proceedings ..................................... 32
3.1.2. Cost of Enforcement ................................... 32
3.2. Acceleration .................................................... 33
3.3. Right to Perform Grantor's Covenants, Etc. ...................... 33
3.4. Possession Upon Default ......................................... 33
3.4.1. Surrender or Taking of Possession ..................... 33
3.4.2. Entering into Possession .............................. 33
3.4.3. Satisfaction of Default ............................... 34
3.5. Sale of Property ................................................ 34
3.5.1 ......................................................... 34
3.5.2 ......................................................... 34
3.5.3 ......................................................... 34
3.5.4 ......................................................... 35
3.5.5 ......................................................... 35
3.5.6 ......................................................... 35
3.6. Appointment of Receiver ......................................... 35
3.7. Trustees Authorized to Execute Deeds, Etc. ...................... 36
3.8. Purchase of the Property by the Beneficiary ..................... 36
3.9. Foreclosure of Personalty ....................................... 36
3.10. Receipt a Sufficient Discharge to Purchaser ..................... 36
3.11. Sale Shall be a Bar Against Grantor ............................. 37
3.12. Application of Proceeds of Sale and Other Monies ................ 37
3.13. Remedies Cumulative ............................................. 37
3.14. No Waiver, Etc. ................................................. 37
3.15. Cross-Collateralization; Waiver of Marshalling, Appraisal,
Valuation ..................................................... 37
4. CONCERNING TRUSTEES ..................................................... 39
4.1. Acts of One Trustee Valid ........................................ 39
4.2. Removal and Substitution of Trustees ............................. 39
4.3. Trustee's Compensation, Expenses, Etc. ........................... 39
5. MISCELLANEOUS ........................................................... 39
5.1. Notices .......................................................... 39
5.2. Invalidity of Any Provision; Entire Agreement .................... 40
5.3. Amendment ........................................................ 40
5.4. Parties Bound and Benefited ...................................... 41
5.5. Effect of Renewal, Amendment, Waiver, Etc. ....................... 41
5.6. Estoppel Certificates ............................................ 41
5.7. Headings ......................................................... 41
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5.8. Pronouns ........................................................ 41
5.9. Governing Law; Service of Process ............................... 42
5.10. Waiver of Jury Trial ............................................ 42
5.11. Limitation of Liability ......................................... 42
5.12 Assignment to Finance Trustee ................................... 43
5.12.1 Anticipated Assignment ................................. 43
5.12.2 Recognition of Finance Trustee as Beneficiary .......... 43
5.12.3 Delivery of Amounts to Servicer ........................ 44
6. DEFINITIONS ............................................................. 44
6.1. Certain Defined Terms ............................................ 44
- iv -
EXHIBITS
EXHIBIT A Description of Land (and Ground Lease, as applicable)
EXHIBIT B Description of Buildings
THIS DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY
AGREEMENT, AND FIXTURE FILING (this "Deed of Trust") is made and entered into
as of this 11th day of June, 1997, by and between ARDEN REALTY FINANCE
PARTNERSHIP, L.P., a California limited partnership having its principal
offices at 0000 Xxxxxxxx Xxxxxxxxx, Xxxx Tower, Suite 700-B, Xxxxxxx Xxxxx,
Xxxxxxxxxx 00000 ("Grantor") to FIRST AMERICAN TITLE INSURANCE COMPANY (the
"Trustee"), for the benefit of XXXXXX BROTHERS REALTY CORPORATION having an
address at Three World Financial Center, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Beneficiary").
RECITALS
A. Beneficiary has, on or about the date hereof, made a loan (the
"Loan") to Grantor in the aggregate principal amount of $175,000,000.00
pursuant to that certain Loan Agreement by and between Beneficiary and
Grantor, dated as of June 11, 1997 (the "Loan Agreement"), which Loan is
evidenced by the Mortgage Note (the "Mortgage Note") of even date herewith by
Grantor to the order of Beneficiary (together with its successors and assigns
thereto, the "Noteholder") in the aggregate principal amount of the Loan,
which Mortgage Note has a final maturity date of June 10, 2012.
B. The Grantor is the owner of, among other things, a fee or leasehold
interest in the seventeen (17) parcels of land described on EXHIBIT A-1
through EXHIBIT A-17 attached hereto and incorporated herein (collectively,
the "Land").
C. On each parcel of Land is located one or more office buildings (the
building or buildings located on an individual parcel of Land, whether one or
more, shall be known as a "Building" and the buildings located on all
seventeen (17) parcels of Land collectively shall be known as the
"Buildings").
D. In connection with the execution and delivery of the Mortgage Note
and as additional security for the Mortgage Note, Grantor is executing and
delivering this Deed of Trust for the purpose of granting, conveying,
transferring and assigning to the Trustee for the benefit of the Beneficiary
a first priority lien on and security interest in all of Grantor's right,
title and interest in and to the Land, together with the Buildings and all
other buildings, structures, parking structures, fixtures and improvements
now or hereafter located or placed thereon (which Buildings and other
buildings, structures, fixtures and improvements, together with any additions
thereto or alterations or replacements thereof, are sometimes herein referred
to as the "Improvements") and in certain other Property more fully described
herein, as security for the Loan and the payment and satisfaction when due of
the Obligations (as defined herein).
E. Without limiting Beneficiary's rights otherwise to assign this Deed
of Trust, the Loan Agreement, the Mortgage Note and all other Loan Documents
(as defined in the Loan Agreement), all of Beneficiary's rights under this
Deed of Trust, the Loan Agreement, the Mortgage Note and all other Loan
Documents (as defined in the Loan Agreement) may be assigned by Beneficiary,
along with mortgage loans made to other borrowers, to, among others, an
institutional trustee (the "Finance Trustee") under the Pooling and Servicing
Agreement (as defined in the Loan Agreement) for the benefit of the holders
from time to time of certain mortgage-backed certificates (the
"Certificates"), and may be serviced by a professional loan servicing company
selected by Beneficiary (the "Servicer") on behalf of the Finance Trustee.
F. A glossary of capitalized terms used herein may be found at Article
VI hereof.
NOW, THEREFORE, in order to secure: (i) payment by Grantor, as and when
due, of the principal of and interest on the Mortgage Note, (ii) any
Defeasance Deposits and Yield Maintenance Payments (as defined in the Loan
Agreement) that may become due thereunder or under any other Loan Document,
(iii) any and all other amounts that may become due and payable under the
Mortgage Note, (iv) the payment of all amounts payable under this Deed of
Trust, the Loan Agreement and the other Loan Documents, (v) the performance
by Grantor of its covenants and agreements contained in this Deed of Trust,
the Loan Agreement and the other Loan Documents, (vi) if the Securitization
has occurred, the reimbursement by Grantor to Beneficiary of all sums
required to be paid by Beneficiary under the Pooling and Servicing Agreement
as the same may be amended, modified or supplemented (the items in clauses
(i) through (vi) of this paragraph being sometimes collectively referred to
herein as the "Obligations"); and for other good and valuable consideration,
the receipt and sufficiency of which the parties hereto acknowledge, Grantor,
Beneficiary and the Trustee by these presents do hereby agree as follows:
GRANTING CLAUSES
Grantor by these presents hereby grants, bargains, sells, assigns,
mortgages, pledges, conveys, confirms, transfers and warrants to the Trustee,
and its successors and assigns, IN TRUST for Beneficiary, with power of sale and
right of entry and possession, all estate, right, title and interest of Grantor,
whether now owned or hereafter acquired, and grants to the Trustee for the
benefit of Beneficiary a security interest in and to, all right, title and
interest of Grantor in and to the following (such right, title and interest of
the Grantor being hereinafter referred to as the "Property"):
(i) the Land described in EXHIBIT A-1 through EXHIBIT A-17
attached hereto (including, in the case of a Building or other Improvements
located on land that the Grantor leases under a long-term ground lease, the
leasehold estate and the Grantor's other rights as lessee under the ground
lease agreement (the "Ground Lease") described on EXHIBIT A-17 attached
hereto), together with the Buildings and all other Improvements located on
the Land;
(ii) all rights and interests appurtenant to or benefiting the
Land and/or the Improvements, including, without limitation, (a) all
easements, rights of way, streets, ways, alleys or passages, all sewer
rights, water, water courses, water rights and powers, riparian rights, and
public places adjoining, benefiting or appurtenant to said Land, and any
other interests in property constituting appurtenances to the Land or the
Improvements, or which hereafter shall in any way belong, relate or be
appurtenant thereto and all land lying in the bed of any street, road or
avenue opened or proposed, in front of or adjoining the Land and (b) all
hereditaments, tenements, gas, oil, minerals and mineral rights and other
rights of every kind and nature whatsoever, relating to or located in, on or
under the Land or the Improvements and all other rights and privileges
thereunto belonging or appertaining, and all extensions, additions,
improvements, betterments, renewals, substitutions and replacements to or of
any of the rights and interests described in subparagraphs (a) and (b) above
(hereinafter, together with the items described in Granting Clause (i) and
the real property, if any, described in Granting Clause (iii) being
hereinafter sometimes referred to as the "Real Property Rights");
(iii) all real and personal property of whatever kind or nature
whatsoever used or useful in the operation of the Buildings, or any of them
or the other Improvements, or in any way related to the Land, the Buildings
of any of them or the other Improvements, whether located on, affixed to, or
attached to the Land, the Buildings or the other Improvements or otherwise
related thereto or arising therefrom, and whether tangible or intangible,
direct or indirect, fully matured or contingent, and all extensions,
additions, improvements, betterments, renewals, substitutions, and
replacements to or of any of the foregoing, including, without limitation all
machinery; all equipment; all screens, window shades, blinds, storm doors and
windows; all lighting, laundry, incinerating and power equipment; all
engines, boilers, machines, motors, furnaces, compressors and transformers,
all generating equipment; all pumps, tanks, ducts, conduits, wires, switches,
fans, switchboards, and other electrical equipment and fixtures; all
telephones, televisions, radios, remote control units, cable boxes, and other
electronic equipment and all vending machines; all piping, tubing, plumbing
equipment and fixtures; all heating, refrigeration, air conditioning,
cooling, ventilating, sprinkling, water, power and communications equipment,
systems and apparatus; all fire prevention, alarm and extinguishing systems
and apparatus; all lift, elevator and escalator equipment and apparatus; all
partitions, exterior and interior signs, gas fixtures, stoves, ovens,
refrigerators, garbage disposals and compactors, dishwashers, cabinets,
mirrors, mantles, floor coverings, carpets, rugs, draperies and other
furnishings and furniture installed or to be installed or used or usable in
any way in the operation of any Improvements or appurtenant facilities
erected or to be erected in or upon any of the Land; and all sculpture, art
and other artifacts; it being mutually intended, agreed and declared by the
parties hereto that all items of the foregoing property that now are or
hereafter become attached or affixed to any of the Land or the Improvements
in such a way as to constitute them "fixtures" under applicable law (the
"Fixtures"),
- 2 -
shall, to the fullest extent permitted by law, be deemed to be and form a
part of the Land and Improvements and, for purposes of this Deed of Trust,
shall be deemed to be real estate subject to the lien created by this Deed of
Trust;
(iv) any and all additions and accessions to the foregoing, and
all proceeds thereof, including, without limitation, proceeds of the
conversion, voluntary or involuntary, of any of the foregoing into cash or
liquidated claims, including, without limitation, all Awards (as defined in
Section 1.9 hereof) and other payments as a result of any Taking (as defined
in Section 1.9 hereof), all Insurance Proceeds (as defined in Section 1.8
hereof), and all proceeds of the title insurance referred to in Section 1.3
hereof, together with all amounts received by the Beneficiary or the Trustee
or due and payable to the Trustee or the Beneficiary pursuant to this Deed of
Trust, including, without limitation, any unearned premiums or refunds of
premiums on any insurance policies covering all or any part of the Land or
Improvements and the right to receive and apply the proceeds of any
insurance, or of any judgments or settlements made in lieu thereof for damage
to or diminution of the Land or Improvements, in accordance with the terms of
this Deed of Trust;
(v) all real estate tax refunds and credits and all awards or
payments, including interest on any of them, and the right to receive the
same, which Grantor may have, which may be made with respect to any of the
Land or any Improvements whether from a Taking thereof or for any other
injury to, decrease in the value of, or other occurrence affecting any of the
Land or any Improvements, subject, in each case, to the rights of the
landlord under the Ground Lease or of tenants under any leases or subleases
of the Property to the extent such Ground Lease or other leases are not
subordinate to the terms of this Deed of Trust;
(vi) all leases and other agreements affecting the use,
enjoyment or occupancy of the Land, the Buildings and the Improvements or any
portion thereof heretofore or hereafter entered into, whether before or after
the filing by or against Grantor of any petition for relief under 11 U.S.C.
Section 101 et seq., as the same may be amended from time to time (the
"Bankruptcy Code") (the "Leases"), and all right, title and interest of
Grantor, its successors and assigns therein and thereunder including, without
limitation, cash or securities deposited thereunder to secure the performance
by the lessees of their obligations thereunder and all rents (as defined in
the Loan Agreements), additional rents, revenues, issues and profits
(including all oil and gas and other mineral royalties and bonuses, if any)
from the Land, the Buildings and the Improvements whether paid or payable
under Leases or otherwise and whether paid or accruing before of after the
filing by or against Grantor of any petition for relief under the Bankruptcy
Code (the "Rents") and all proceeds from the sale or other disposition of the
Leases and the right to receive and apply the Rents to the payment of the
Obligations;
(vii) all present and future licenses, contracts or other
agreements relating to the ownership of the Land and/or the Improvements
(including all of Grantor's rights under any contracts for the sale of any
portion of the Land or the Improvements, any purchase options, rights of
first refusal or similar rights of Grantor under any Ground Lease, and all
revenues and royalties under any oil, gas and mineral leases relating to the
Land) (collectively, the "Contracts") and revenues derived by the Grantor
therefrom and otherwise from the Land and Improvements;
(viii) all "general intangibles" (as defined the Uniform
Commercial Code in effect in the State of California and, to the extent a
broader definition is contained therein, in the State of New York) (the
"U.C.C.") relating to any of the Land or any of the Improvements, including,
without limitation, to the extent assignable, all rights relating to design,
development, operation, and use of the Land or Improvements, all certificates
of occupancy, zoning variances, building, use or other permits, approvals,
authorizations, licenses and consents obtained from any governmental agency
in connection with the development, use, operation or management of any of
the Land or any of the Improvements, all construction, service, engineering,
consulting, architectural and other similar contracts concerning the design,
construction, operation, occupancy and/or use of any of the Land or any of
the Improvements, all architectural drawings, plans, specifications, soil
tests, appraisals, engineering reports and similar materials relating to all
or any portion of the Land or Improvements, and all payment and performance
bonds or warranties or guarantees relating to any of the Land or any of the
Improvements; all rights in the Lockbox Account, the Cash Collateral Account,
and the Tax and Insurance Escrow Account and any investments of Rents, rights
of Grantor in the Management Agreement (as defined in the
- 3 -
Loan Agreement), the Contribution Agreement (as defined in the Loan
Agreement), Grantor's partnership agreement, and all rights under the Leases,
all trademarks, trade names, corporate names, company names, business names,
fictitious business names, trade styles, service marks, logos, other source
and business identifiers, trademark registrations and applications for
registration used exclusively at or relating exclusively to any part of the
Property; all renewals, extensions and continuations-in-part of the items
referred to above; any written agreements granting to Grantor any right to
use any trademark or trademark registration at or in connection with any part
of the Property; and the right of Grantor to xxx for past, present and future
infringements of the foregoing; and the right in the name and on behalf of
Grantor to appear in and defend any action or proceeding brought with respect
to any part of the Property and to commence any action or proceeding to
protect the interest of the Beneficiary in such Property;
(ix) all "accounts," "goods," "documents," "instruments," and
"chattel paper" (as those terms are defined in the U.C.C.), including,
without limitation, equipment, inventory, motor vehicles, all items of
personal property of the kind described in clause (iii) above, all stocks,
bonds, interests in mutual funds and other investments, all rights under
equipment leases, all bills of lading and warehouse receipts, and other
assets of any kind;
(x) all extensions, improvements, betterments, renewals,
substitutes and replacements of, and all additions and appurtenances to, the
Property, hereafter acquired by or released to Grantor or constructed,
assembled, or placed by Grantor thereon, immediately upon such acquisition,
release, construction, assembling or placement, as the case may be, and in
each such case, without any further mortgage, conveyance, assignment or other
act by Grantor, any of such extensions, improvements, betterments, renewals,
substitutes and replacements shall become subject to the lien of this Deed of
Trust, and the security and other interests created hereby, as fully and
completely, and with the same effect, as though now owned by Grantor and
specifically described herein; and
(xi) all other proceeds (including, without limitation, as
defined in the U.C.C.), both cash and noncash, of the foregoing which may be
sold or otherwise disposed of.
TO HAVE AND TO HOLD the said Property unto the Trustee, in trust for the
benefit of Beneficiary, and its or their successors and assigns forever to
secure payment to Beneficiary of the full principal and interest on the
Mortgage Note and the performance by Grantor of the other Obligations
thereunder, under this Deed of Trust and under the other Loan Documents;
PROVIDED, HOWEVER, that, except as otherwise provided in Schedule 5.11 to the
Loan Agreement, unless and until an Event of Default (as defined in Article
II hereof) shall have occurred and be continuing, Grantor shall have the
right to possess and enjoy the Property, and to receive the rents, issues,
and profits therefrom, subject to the terms of the Loan Agreement, the
Mortgage Note, this Deed of Trust, and the other Loan Documents; and
PROVIDED, FURTHER, that if the Grantor shall pay and satisfy in full the
principal of and interest on the Mortgage Note and all other monetary
Obligations which this Deed of Trust by its terms secures, then the lien of
this Deed of Trust shall be released by the Trustee to Grantor upon the
written request and at the expense of Grantor; and PROVIDED, FURTHER, that
nothing herein contained shall be construed as constituting Beneficiary or
the Trustee as a mortgagee-in-possession unless and to the extent Beneficiary
or the Trustee shall have taken actual possession of the Land and
Improvements; PROVIDED, FURTHER, that nothing contained in this Deed of Trust
shall be construed as imposing on Beneficiary or the Trustee any of the
obligations of the lessee under the Ground Lease, or of the lessor under any
lease of the Land or the Improvements, or of any contract party to any of the
Leases or the Contracts, unless the Beneficiary or the Trustee shall have
foreclosed the lien of this Deed of Trust or expressly assumed such
obligations in writing; and PROVIDED, FURTHER, that all items of the
foregoing Property that may constitute collateral of the kind in which a
security interest may be created and perfected under the Uniform Commercial
Code as in effect in the State in which the Land is located shall be subject
to the grant of security interest made in Section 1.17 hereof, which Section
1.17 shall be supplemental to, and shall not be deemed to limit, supersede or
impair, these Granting Clauses.
AND IT IS HEREBY COVENANTED AND AGREED by Grantor, for itself and its
heirs, legal representatives, successors, and assigns, that the Property is
to be held and applied subject to the terms herein set forth, and Grantor,
for itself and its heirs, legal representatives, successors, and assigns,
hereby covenants and agrees with Beneficiary (and the Trustee for the benefit
of Beneficiary, as applicable), as follows:
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ARTICLE I
1. COVENANTS, REPRESENTATIONS AND WARRANTIES
1.1 PAYMENT OF MORTGAGE NOTE; PERFORMANCE OF OTHER OBLIGATIONS
Grantor represents and warrants that it has duly authorized, executed,
issued and delivered the Mortgage Note, this Deed of Trust and the other Loan
Documents and covenants that it shall duly and punctually pay and perform all
of its Obligations as the same shall become due and payable, and shall
otherwise duly, fully and timely comply with all of the terms, covenants,
conditions, and agreements contained in (or incorporated into) this Deed of
Trust, the Mortgage Note and the other Loan Documents.
1.2 General Representations, Warranties and Covenants
Grantor hereby covenants, represents and warrants that:
1.2.1 Authority, Enforceability, Etc.
This Deed of Trust, the Mortgage Note and all of the other Loan Documents
executed by Grantor have been duly executed and delivered by Grantor pursuant
to authority legally adequate therefor, and Grantor has been and is
authorized and empowered by all necessary persons having the power of
direction over it to execute and deliver this Deed of Trust, the Mortgage
Note and each such other Loan Document and to carry out the transactions
contemplated herein and therein. Each of this Deed of Trust, the Mortgage
Note and each such other Loan Document is a legal, valid and binding
obligation of Grantor, enforceable against Grantor in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting the
enforcement of creditors' rights generally and by general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity
or at law); and
1.2.2 No Defaults
Grantor is not now in default in any material respect under any
instruments or obligations relating to all or any part of the Property, and
no party has asserted in writing any material claim of default against
Grantor relating to all or any part of the Property. The execution and
delivery by Grantor of this Deed of Trust, the Mortgage Note, the Loan
Agreement or any other Loan Document, and the consummation of the
transactions contemplated hereby or thereby, will not result in any breach
of, or constitute a default under, any mortgage, lease, loan agreement,
credit agreement, trust indenture, deed of trust, or other instrument,
contract or agreement to which Grantor is a party or by which it or the
Property (or any part thereof) is bound or affected, nor do any such
instruments, contracts or agreements impose any obligations upon Grantor that
are inconsistent with the obligations imposed on Grantor hereunder or under
the Mortgage Note, the Loan Agreement or any other Loan Document; and
1.2.3 No Litigation
There are no actions, investigations, suits or proceedings (including,
without limitation, any condemnation or bankruptcy proceedings) pending or,
to Grantor's knowledge, threatened against or affecting any of the Property,
which may materially and adversely affect any of the Property or the validity
or enforceability of this Deed of Trust, the Mortgage Note, the Loan
Agreement, or any other Loan Document, at law or in equity, or before or by
any governmental authority, and Grantor is not in default with respect to any
writ, injunction, decree or demand of any court or any governmental authority
affecting any of the Property; and
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1.2.4 Compliance with Law, Etc.
All of the Property and the use, operation and maintenance thereof comply
in all material respects with (and Grantor is in compliance in all material
respects with) all restrictive covenants, zoning and subdivision regulations,
and ordinances and building codes applicable to the Property, and each
Building and other Improvement complies in all material respects with the
requirements of the Americans with Disabilities Act of 1990, and all rules,
regulations and orders issued pursuant thereto, to the extent applicable
thereto; and
1.2.5 Good Title
Grantor is well seized and possessed of, and is transferring to the
Trustee, good, valid and marketable fee simple title (or, with respect to
Land leased pursuant to a Ground Lease, leasehold title) in and to the Land
and Improvements, and good and valid title to all of the other Property, in
each case, free and clear of any mortgage, deed of trust, lien, claim,
option, encumbrance, encroachment, reservation, right of way, easement,
covenant, lease, condition or restriction, pledge, security interest,
hypothecation, assignment, assigned deposit arrangement, charge or defect of
any kind, or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever, including, without
limitation, any conditional sale or other title retention agreement (all of
the foregoing being hereinafter referred to each individually as a "Lien" and
collectively as "Liens"), subject only to the following (the "Permitted Liens
and Encumbrances") (none of which Permitted Liens and Encumbrances do or will
materially or adversely interfere with (x) the ability of Grantor to pay the
Obligations in full or (y) the use, operation or value of any of the Property
as of the date hereof):
(i) Liens created by the Loan Documents in favor of the
Beneficiary (or the Trustee, as applicable);
(ii) Liens, if any, for taxes, assessments and other
charges that are not yet due or payable (or are due and payable but not yet
delinquent);
(iii) Applicable building and zoning laws and regulations
and other applicable laws and regulations affecting the use and occupancy of
any of the Property;
(iv) Liens of mechanics and materialmen currently
affecting the Property against which the Beneficiary has been adequately
insured by the applicable Title Insurance Policy described in Section 1.3
hereof and future liens of mechanics or materialmen for work or services for
which payment is not yet due or the payment of which is being contested by
appropriate proceedings in accordance with Section 1.5.3 hereof and as to
which Grantor has deposited with the Beneficiary the amounts required by
Section 6.2 of the Loan Agreement;
(v) Matters set forth on Schedule B to the Title
Insurance Policies;
(vi) Any applicable Ground Lease;
(vii) Easements, restrictions, covenants, reservations and
rights of way granted in the ordinary course of business for traffic
circulation, ingress, egress, parking, access, water and sewer lines,
telephone and telegraph lines, electric lines or other utilities or for other
similar purposes that are not encroached upon by the Improvements;
(viii) the Leases;
(ix) Liens securing purchase money financing or finance
leasing of the kind permitted by Section 1.5.2 hereof; and
(x) Matters described as "Permitted Liens" in the Loan
Agreement; and
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1.2.6 Covenant of Title
Grantor, at its own expense, does hereby and shall forever warrant and
defend to the Trustee for the benefit of Beneficiary, and its or their
successors and assigns forever, title to the Property as described in Section
1.2.5 and the lien and interest of the Trustee created by this Deed of Trust
on and in the Property, and the first priority thereof, against all claims
and demands of any and all persons whomsoever, and shall maintain and
preserve such title and lien so long as the Mortgage Note, the Loan
Agreement, this Deed of Trust, or any other Loan Document is outstanding and
until such time as all sums secured hereby and thereby have been paid in full
and all other Obligations have been duly performed; and
1.2.7 Negative Pledge
Except as set forth in Sections 1.5.2 and 1.23 hereof, during the term of
this Deed of Trust, Grantor shall not, directly or indirectly, assign,
transfer, pledge, convey, mortgage or encumber, or permit the assignment,
transfer, pledge, conveyance, mortgaging or encumbrance of, any or all of
Grantor's legal or equitable interest in the Property, other than Permitted
Liens and Encumbrances, without the prior written consent of the Beneficiary;
and
1.2.8 Necessary Permits
Grantor owns, or otherwise has the right to use or is in possession of,
all licenses, permits and government approvals or authorizations that are
required by applicable law to occupy and conduct its operations on or in the
Land and Improvements as currently conducted, except to the extent the lack
of any such license, permit, approval or authorization would not reasonably
be expected to materially adversely affect the occupancy of the Land or
Improvements or any portion thereof, the operation or value of the
Improvements or any portion thereof or the ability of Beneficiary or the
Trustee as applicable to exercise their rights or remedies hereunder; and
1.2.9 Flood Zone
No portion of the Improvements is located in an area identified by the
Secretary of Housing and Urban Development as an area having special flood
hazards pursuant to the National Flood Insurance Act of 1968 or the Flood
Disaster Act of 1973, as amended, or any successor law, or, if located within
any such area, Grantor has obtained and will maintain the insurance
prescribed in Section 1.7.1(iv); and
1.2.10 Separate Tax Lot; Assessments
(a) Each Individual Property is assessed for real estate tax purposes as
one or more wholly independent tax lot or lots, separate from any adjoining
land or improvements not constituting a part of such lot or lots, and no
other land or improvements is assessed and taxed together with the Property
or any portion thereof; and
(b) To Grantor's knowledge, there are no pending or, proposed, special
or other assessments for public improvements or otherwise affecting any of
the Property, nor, to Grantor's knowledge, are there any contemplated
improvements to any of the Property that may cause or result in any special
or other assessments.
1.3 Title Insurance
The Grantor has delivered or caused to be delivered to the Beneficiary
one or more prepaid Mortgagee's policies of title insurance (each a "Title
Insurance Policy" and collectively, the "Title Insurance Policies") issued by
First American Title Insurance Company or another title insurance company
reasonably satisfactory to Beneficiary (singly or collectively, the "Title
Company"), insuring the interest of Beneficiary as holder of a valid
first-priority mortgage, deed of trust, or similar lien upon good and
marketable fee simple title to the Land and
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Improvements (except that such insurance for any Individual Property subject
to a Ground Lease shall insure a leasehold interest in the Land and fee
simple title to the Improvements located thereon), in a total amount equal in
the aggregate to the original principal amount of the Mortgage Note, subject
only to Permitted Liens and Encumbrances. All proceeds received by
Beneficiary or the Trustee for any loss under such title insurance policy, or
under any title insurance policies delivered to Beneficiary in substitution
therefor or in replacement thereof, shall be received by Beneficiary and
distributed in the manner set forth in Section 2.4.5 of the Loan Agreement.
1.4 Recordation; Preservation of Lien
Grantor, at its expense, shall at all times cause this Deed of Trust and
all amendments and supplements hereto, and such financing statements,
continuation statements, and other instruments as may be reasonably required
by Beneficiary or the Trustee, or applicable law to be recorded, registered,
and filed in such manner and in such places as may be required or advisable
under applicable law in the good faith judgment of Beneficiary or the Trustee
to establish, preserve, maintain, and protect the lien of this Deed of Trust
on all or substantially all of the Property (including, without limitation,
any of the Property acquired after the execution hereof), and to perfect and
maintain the security interest granted by this Deed of Trust or any other
Loan Document with respect to the Property referred to herein, and shall pay
all recording, registration, filing, and other taxes, fees, and charges
relating thereto, and shall comply in all material respects with all laws,
rules, and regulations in connection therewith.
1.5 Taxes, Liens, and Permitted Encumbrances
1.5.1 Taxes
Subject to the right of contest described in Section 1.5.3 hereof,
Grantor shall pay all taxes, assessments (including, without limitation, all
assessments for public improvements or benefits, whether or not commenced or
completed prior to the date hereof), ground rents, water, sewer and other
rents, rates and charges, excises, levies, license fees, permit fees,
inspection fees, common area maintenance fees, dues and fees owing to
property owners' associations having jurisdiction over any of the Property
and other authorization fees and other charges (collectively, "Impositions"),
in each case whether general or special, ordinary or extraordinary, foreseen
or unforeseen, public or private, of every character (including all interest
and penalties thereon), which at any time from and after the date hereof may
be assessed, levied, confirmed or imposed on or in respect of, or be a lien
upon (i) the Property, or any part thereof or any rent therefrom or any
estate, right, title or interest therein, or (ii) any occupancy, use or
possession of or activity conducted on the Property or any part thereof.
Such payments shall be made before any fine, penalty, interest or cost may be
added for nonpayment. At Beneficiary's request, Grantor shall furnish to
Beneficiary official receipts or other satisfactory proof evidencing such
payments. Upon default by Grantor in the payment of any such tax, assessment
or other charge, unless the same is being properly contested in accordance
with Section 1.5.3 hereof, Beneficiary may (but shall have no obligation to)
pay or cause to be paid the amount thereof, together with any amount of
interest or penalties that may be due with respect thereto, and such amounts
(together with any expenses incurred by Beneficiary in connection therewith,
including, without limitation, reasonable attorneys' fees and charges) shall
be secured by this Deed of Trust and shall be repaid upon demand, together
with interest thereon at the Default Interest Rate specified in the Loan
Agreement.
1.5.2 Liens; Permitted Encumbrances
The Grantor shall not effect any financing using the Property or any part
thereof as security, except for (i) the Loan and (ii) purchase money
financings or finance leasing of particular items of furniture, fixtures and
equipment to the extent permitted under the Loan Agreement, and shall not
directly or indirectly create or permit or suffer to be created or to remain,
and will discharge, or promptly cause to be discharged, any Lien on or with
respect to the Property or any part thereof, or Beneficiary's or the
Trustee's, as applicable, interest therein, other than (1) this Deed of
Trust, and (2) the Permitted Liens and Encumbrances.
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1.5.3 Permitted Contests
Anything to the contrary contained herein notwithstanding, Grantor, at
its expense, may contest, by appropriate legal, administrative or other
proceedings conducted in good faith and with due diligence, the amount or
validity or application, in whole or in part, of any Impositions, including
any taxes, assessments, charges or other amounts required to be paid pursuant
to the provisions of this Section 1.5, or the application of any instrument
of record affecting the Property or any part thereof (other than the Loan
Documents), or any claims or judgments of mechanics, materialmen, suppliers,
vendors or other Persons or any Lien therefor, or any other charge or cost
imposed on the Grantor or all or any part of the Property and may withhold
payment of the same pending such proceedings if permitted by law; PROVIDED
that (i) in the case of any Impositions or liens therefor or any claims or
judgments of mechanics, materialmen, suppliers, vendors or other Persons or
any liens therefor, such proceedings shall suspend the collection thereof,
(ii) neither the Property nor any part thereof or interest therein would be
in danger of being sold, forfeited or lost during the pendency of such
contest, and the Grantor will pay or satisfy the underlying claim if the
Grantor does not prevail in the contest or if payment or satisfaction is
required to avoid the sale, forfeiture or loss of the Property (and, where
required by Section 6.2 of the Loan Agreement and as further security
hereunder, deposit with the Beneficiary, or, following the assignment
contemplated by Section 5.12 hereof, the Servicer, such amounts in connection
with such contest as are required by Section 6.2 of the Loan Agreement),
(iii) in the case of an obligation with respect to the insurance requirements
set forth in Section 1.7 hereof, the failure of Grantor to comply therewith
shall not impair the validity of any insurance required to be maintained by
Grantor under Section 1.7 or the right to full payment of any claims
thereunder, (iv) in the case of taxes, if an amount can be contested without
being paid, the Grantor shall deposit (where required by Section 6.2 of the
Loan Agreement) with the Beneficiary, or, following the assignment
contemplated by Section 5.12 hereof, the Servicer (to the extent not
deposited with Beneficiary or the Servicer, as applicable, pursuant to the
foregoing subsection (ii)) in accordance with Section 6.2 of the Loan
Agreement 125% of the amount being contested together with interest and
penalties reasonably expected to accrue thereon for so long as such amount is
due and payable and unpaid, (v) in the case of any utility service, any
contest or failure to pay will not result in a discontinuance of any such
service, and (vi) in the case of any instrument of record affecting the
Property or any part thereof, the contest or failure to perform under any
such instrument shall not result in the placing of any Lien on the Property
or any part thereof unless such Lien is bonded or otherwise discharged or
enforcement thereof is stayed.
1.5.4 No Credit for Payment of Taxes or Impositions
Grantor shall not be entitled to any credit against the principal of or
interest, if any, payable on the Mortgage Note, and the Grantor shall not be
entitled to any credit against any other amounts which may become payable
under the terms thereof or hereof, by reason of the payment of any tax on the
Property or any part thereof or by reason of the payment of any other
Imposition or other amount required to be paid hereunder. No deduction shall
be made or claimed from the taxable value of the Property or any part thereof
by reason of this Deed of Trust.
1.6 Care of the Property
1.6.1 Condition of the Property
Grantor shall keep the Property in good and clean order and condition and
repair in accordance with the requirements of the Loan Agreement, shall not
commit or suffer waste thereto, and shall not do or suffer to be done
anything that will increase the risk of fire or other hazard to the Property
or any material part thereof and shall in accordance with the requirements of
the Loan Agreement keep all Property used or useful in its business in good
repair, working order and condition, and from time to time make all necessary
or appropriate repairs thereto and renewals and replacements thereof.
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1.6.2 Alterations; Building Only
The Grantor shall not remove or demolish or materially alter the overall
design or structural character of the Improvements or impair the structural
integrity thereof or of any other part of the Property except in accordance
with Section 1.8 or Section 1.11 hereof, as applicable, and shall at all
times use the Property or cause the Property to be used only for the purpose
of operating the Land and Improvements in substantially the same manner as
currently operated; PROVIDED, HOWEVER, that Grantor shall be permitted to
make alterations and repairs to the Property without restriction as
reasonably necessary to maintain the Property in as good condition as existed
on the date hereof, reasonable wear and tear excepted.
1.6.3 Right to Inspect
Beneficiary and the Trustee or their representatives or both are hereby
authorized to enter upon and inspect the Property at their own cost (or, upon
the occurrence and during the continuation of an Event of Default, at the
Grantor's cost) at any time upon reasonable notice and during normal business
hours; PROVIDED, HOWEVER, that Beneficiary and the Trustee must at all times
use reasonable efforts to minimize any disruption to the operations on the
Land.
1.6.4 Compliance with Laws and Covenants
Grantor shall promptly comply with (a) all present and future Laws
affecting the Property or any part thereof, (b) all conditions, covenants,
restrictions, common area maintenance, reciprocal easement and similar
agreements affecting the Property or any part thereof and (c) all Laws
necessary for the operation and maintenance of the Improvements in the manner
they are currently operated and maintained. Grantor shall not initiate, join
in, acquiesce in, or consent to any change in any private restrictive
covenant, zoning law or other public or private restriction, limiting or
defining the uses which may be made of the Property or any part thereof; if
under applicable zoning provisions the use of all or any portion of the
Property is or shall become a nonconforming use, Grantor will not cause or
permit the nonconforming use to be discontinued or abandoned without the
express written consent of Beneficiary.
1.7 Insurance
1.7.1 Risks to be Insured
Grantor (or its designee), at the Grantor's expense, will obtain and
maintain in full force and effect at all times until all Obligations have
been fully paid and performed, with Qualified Insurance Companies (as that
term is defined in Section 1.7.2), insurance against the following risks:
(i) Loss and damage by fire and all other casualties on
or to the Property as are included in the form of casualty insurance commonly
referred to as "extended coverage" (including, without limitation, windstorm,
explosion and such other risks as are typically insured against by owners of
like properties in the area in which the Buildings are located) in such
amounts as are reasonably satisfactory to Beneficiary, but in no event less
than one hundred percent (100%) of the full replacement cost of the Property
(exclusive of excavation and foundations and without deduction for physical
depreciation) and in no event less than the amount required to prevent
Grantor from becoming a co-insurer within the terms of the applicable
policies and in no event less than the outstanding amount of the obligations;
such insurance shall contain an "Ordinance or Law Coverage" or "Enforcement"
endorsement if any of the Improvements or the use of the Property constitute
legal, non-conforming structures or uses;
(ii) Comprehensive public liability insurance on an
"occurrence basis" against claims for personal injury, including without
limitation, bodily injury, death or property damage occurring on, in or about
the Property with a combined single limit of not less than $3,000,000 with
respect to personal injury or
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death to one or more persons and with "umbrella" liability coverage of not
less than $25,000,000, or such greater amounts as may from time to time be
required by institutional lenders for similar loans;
(iii) Business interruption insurance for an amount
not less than the greater of (x) twenty-four months' gross income from
the Property and (y) estimated operating expenses (including debt
service) for the Property for a twenty-four month period that
commences on the effective date of said insurance policy or each
renewal thereof, as applicable (in either case on an "actual loss
sustained" basis) covering the same risks as are covered by the
policies described in Section 1.7.1(i);
(iv) If the Land is located in an area designated by the
U.S. Department of Housing and Urban Development as a flood hazard area,
insurance for the peril of flood as is available through the National Flood
Insurance Program;
(v) Broad form boiler and machinery insurance on a
"comprehensive" form in an amount adequate to provide protection against the
maximum amount of damage possible to building, improvements and contents
resulting from explosion or other occurrences relating to boilers, pressure
vessels, machinery and equipment on or about the Property;
(vi) Workers' compensation insurance in such forms and in
such amounts as may be required by the laws of each state in which any
Building is located;
(vii) A blanket policy of insurance insuring the Property
against damage by earthquake in an aggregate insured amount not less than $
26,615,000 and having a deductible of not more than 5% per unit subject to a
$100,000 minimum or such other earthquake insurance as may be required by
Section 8.3 of the Loan Agreement (a unit being defined as each Building on
an Individual Property); and
(viii) Such other insurance as is generally available on
commercially reasonable terms and is generally required by institutional
lenders on loans secured by properties similar to any Individual Property.
1.7.2 Qualified Insurers
An insurer satisfying the applicable requirements of this Section 1.7.2
shall be deemed to be a "Qualified Insurance Company." All primary
insurers must be authorized to issue insurance in the State of California.
All primary insurance coverage required by Section 1.7.1 (other than flood
insurance and workers' compensation insurance) shall be provided by one or
more insurers having a rating for claims paying ability of at least "AA" from
S&P and an equal or equivalent rating from at least one other Rating Agency.
If permitted by the laws of the State of California, the insurance required
by clause (vi) of Section 1.7.1 may be provided by a state approved and
regulated employer's self-insurance fund.
1.7.3 Policy Provisions
All insurance policies required by Section 1.7.1 shall be on forms, with
endorsements and with deductible amounts reasonably satisfactory to
Beneficiary (but in no event shall a deductible amount exceed ten percent
(10%) of the policy limits above). All policies of insurance required by
Sections 1.7.1(i), (iii), (iv), (v) and (vii) shall contain suitable
loss-payable and standard noncontribution mortgagee clauses acceptable to and
in favor of Beneficiary or the Trustee and their assigns. If an Event of
Default shall have occurred at the time of receipt of any insurance proceeds,
Beneficiary or the Trustee may, at Beneficiary's option, apply the same to
the repayment of the Obligations in accordance with the Mortgage Note or
other Loan Documents. In all other cases, proceeds of such insurance shall
be applied in the manner contemplated by Section 1.8 hereof.
All policies of insurance maintained by Grantor pursuant to this
Section 1.7.2 shall:
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(i) Name Beneficiary and the Trustee as additional
insureds or loss payees, as applicable, as their respective interests may
appear;
(ii) provide that Beneficiary shall be advised in writing
of any casualty insurance claims exceeding $100,000 before payment thereon is
made and, except in the case of worker's compensation and public liability
insurance, that all proceeds for losses of One Hundred Thousand Dollars
($100,000) or less, shall be paid to and adjusted by Grantor, and all
proceeds for losses of more than One Hundred Thousand Dollars ($100,000)
shall be paid to Beneficiary or Grantor in accordance with Section 1.8.3 and
adjusted by Grantor with approval of Beneficiary, pursuant to a mortgagee
endorsement acceptable to Beneficiary;
(iii) provide that the casualty insurance (or insurance
otherwise known as property insurance) shall not be impaired or invalidated
by virtue of (A) any act, failure to act, or neglect of Grantor, (B) the
occupation or use of the insured properties for purposes more hazardous than
permitted by the terms of the policy, (C) any foreclosure or other proceeding
or notice of sale relating to the insured properties, or (D) any change in
the possession of the insured properties without a change in the identity of
the holder of actual title to the Property (provided that with respect to
items (C) and (D), any notice requirements of the applicable policies are
satisfied);
(iv) provide that no material changes or mid-term
cancellation shall be effective until at least thirty (30) days after receipt
of written notice thereof by Grantor and Beneficiary (and no termination for
non-payment of premium shall be effective until at least ten (10) days after
receipt of written notice thereof by Grantor and Beneficiary), with
Beneficiary having the opportunity, but being under no obligation, to pay all
moneys or to do any act necessary to prevent such alteration, cancellation,
termination or expiration or to cause such renewal, the cost thereof,
together with interest thereon at the Default Interest Rate provided for in
the Loan Agreement, to be added to the indebtedness of Grantor under the
Mortgage Note and to be secured hereby;
(v) include effective waivers by the insurer of all
claims for insurance premiums against all loss payees and additional insureds
(other than Grantor) and, where applicable, all rights of subrogation against
any loss payee, additional insured or named insured;
(vi) permit Beneficiary to pay the premiums and continue
any insurance upon failure of Grantor to pay premiums when due, upon the
insolvency of Grantor, or through foreclosure or other transfer of title to
the Property or any portion thereof (it being understood that Grantor's
rights to coverage under such policies may not be assignable without the
consent of the provider); and
(vii) be reasonably satisfactory to Beneficiary in all
other respects.
The insurance required to be maintained by clauses (i), (ii), (iii),
(iv) and (v) of Section 1.7.1 may be provided by a blanket policy so long as
the blanket policy complies with the terms of this Section 1.7 and
Beneficiary is provided with reasonably satisfactory evidence that the policy
limits required hereunder are satisfied by such policy and that such coverage
and limits will be no less than those that would be provided under separate
policies even if there is a total loss of all properties covered by the
blanket policy.
1.7.4. Delivery of Certificates
Prior to the execution of this Deed of Trust, and thereafter not less
than fifteen (15) days prior to the expiration date of any policy required
pursuant to this Section 1.7, Grantor will deliver to the Beneficiary
original certificates of the insurers for all policies of insurance required
by this Deed of Trust, which shall bear notations evidencing the payment of
premiums then due and payable and the date through which said coverage is
made effective by the evidenced payment. Grantor also shall deliver to
Beneficiary from time to time, at Beneficiary's request, (i) schedules
setting forth all such insurance then in effect and (ii) certified copies of
all such policies.
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1.7.5. No Separate Insurance
Grantor will not take out separate insurance of the kind described in
clauses (i), (iii), (iv), (v) or (vii) of Section 1.7.1 or other forms of
casualty insurance concurrent in form or contributing in the event of loss
with that required to be maintained pursuant to this Section 1.7 unless such
insurance complies with Sections 1.7.2 and 1.7.3.
1.8. Damage to or Destruction of Property
1.8.1. Notice
In case of any material damage to or destruction of the Property or any
part thereof (each, a "Casualty"), Grantor will, promptly upon becoming aware
thereof, give written notice thereof to Beneficiary describing the nature and
extent of such damage or destruction.
1.8.2. Restoration
In case of a Casualty to one or more of the Individual Properties (each,
a "Casualty Property"), Grantor, whether or not the insurance proceeds
(hereafter "Insurance Proceeds") on account of such Casualty shall be
sufficient for such purpose, at its expense, will promptly commence and
complete the restoration, replacement or rebuilding of the Casualty Property
as nearly as possible to its value, condition and character immediately prior
to such Casualty (such restoration, replacement, and rebuilding, together
with any temporary repairs and property protection pending completion of the
work, being herein referred to as the "Restoration"), PROVIDED, HOWEVER, in
the event Restoration is not required under any applicable Ground Lease and
either (i) the Restoration adversely affects the cash flow from the Casualty
Property in any material respect and cannot reasonably be expected to be
completed within a period of 12 months after the date of the Casualty (or, if
shorter, by the date on which the proceeds of business interruption insurance
will no longer be available) or (ii) the extent of the damage makes it
impracticable in Grantor's good faith business judgment, to restore the
Casualty Property to substantially the same condition as existed prior to the
Casualty or the Casualty results in the permanent loss of access to the
Casualty Property or the Improvements thereon or (iv) the Casualty Property
and the use thereof after the Restoration would not be in material compliance
with and permitted under all applicable laws, or (v) the Insurance Proceeds
payable on account of such Casualty equal or exceed the Allocated Loan Amount
applicable to the Casualty Property, then Restoration shall not be required
or permitted and instead the Insurance Proceeds shall be collected and paid
over to Beneficiary up to the amount of the Allocated Loan Amount for such
Casualty Property (with any excess to be paid to Grantor) and the amount
thereof shall be held and applied by Beneficiary (or the Servicer on its
behalf in accordance with Section 5.12.3 hereof) (net of any amounts
necessary to avoid or eliminate any hazardous condition on the Casualty
Property or to prevent imminent and substantial physical deterioration of the
Casualty Property), (a) (i) if applied prior to the first day of the
Defeasance Period, to prepayment of the outstanding principal balance of the
Mortgage Note, without the requirement of a Yield Maintenance Payment, in
accordance with Section 2.7 of the Loan Agreement, or (ii) if applied during
the Defeasance Period and after the Securitization has occurred, to the
purchase of U.S. Obligations in accordance with Section 2.5 and Section 2.9
of the Loan Agreement, or (iii) if applied after the Defeasance Period, to
prepayment of the outstanding principal balance of the Mortgage Note, in
accordance with Section 2.10 of the Loan Agreement, without the requirement
of a Yield Maintenance Payment and (b) to the payment of all other
indebtedness which this Deed of Trust secures in such order as is
contemplated under the Loan Documents; PROVIDED, HOWEVER, that such
prepayment must be in an amount at least equal the greater of (A) the
Allocated Loan Amount for such Casualty Property and (B) the Net Sales
Proceeds received by Grantor from the sale of the Casualty Property or the
part thereof that remains following the Casualty (plus any remaining
Insurance Proceeds not previously applied to repayment of the Loan or
Restoration), but in no event more than the Release Price of such Casualty
Property, regardless of the amount of Insurance Proceeds, and shall be
payable by Grantor (and the amounts described in the immediately preceding
parenthetical phrase shall not be deducted from the Insurance Proceeds to the
extent that the same shall not be sufficient to pay the Allocated Loan Amount
plus such interest).
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1.8.3. Application of Insurance Proceeds or Awards
All Insurance Proceeds received by any one or more of Grantor,
Beneficiary or Trustee, on account of any Casualty affecting the Property or
any part thereof (less the costs, fees and expenses reasonably incurred by
Beneficiary or Trustee, as applicable, in the collection thereof, including,
without limitation, all adjusters' fees and expenses and reasonable
attorneys' fees and charges, which shall be deemed to be incurred for the
account of Grantor) shall be delivered to and held by Grantor, if such
Insurance Proceeds total 2.5% of the Allocated Loan Amount applicable to the
Casualty Property, or less, in the aggregate for a single Casualty or, if the
amount of such Insurance Proceeds is more than 2.5% of the Allocated Loan
Amount applicable to the Casualty Property, to Beneficiary to be held by
Beneficiary (or the Servicer on its behalf in accordance with Section 5.12.3
hereof) and applied in accordance with the terms hereof. Except as provided
in Section 1.8.2, all Insurance Proceeds shall be used and applied in either
case, so long as no Default or Event of Default shall have occurred and be
continuing, to reimburse Grantor for the cost of Restoration from time to
time as Restoration progresses, and advances of funds held by Beneficiary
shall be made within thirty (30) days after Grantor's written request for
reimbursement; PROVIDED, HOWEVER, that if the cost of Restoration as to which
Insurance Proceeds have been paid or are payable in connection with any
single Casualty exceeds or is expected to exceed 2.5% of the Allocated Loan
Amount applicable to the Casualty Property, Beneficiary shall have the right
to approve the plans and specifications for such Restoration before the
Restoration work begins, to appoint a Qualified Supervising Professional to
oversee the Restoration, and to require as a condition to the release of
funds to pay the costs of such Restoration (A) a certificate of the Qualified
Supervising Professional certifying (x) that the amount that Beneficiary is
requested to advance is necessary to pay invoices for work completed that
have been submitted to Grantor (and which have not previously been paid), (y)
that the amount of Insurance Proceeds and other funds of Grantor, if required
by this Section, that Beneficiary will hold following payment of the
requested advance is expected to be sufficient to complete the Restoration,
and (z) that the Restoration work for which such proceeds are requested has
been completed in accordance with the approved plans and specifications and
with applicable law, (B) lien waivers from all materialmen, laborers and
contractors who are to be paid with such advances, (C) an endorsement to the
title policy described in Section 1.3 hereof relating to the Casualty
Property insuring against mechanic's liens that may arise out of the
Restoration, and (D) such other documents as Beneficiary or the Trustee may
request; and PROVIDED, FURTHER, that if the cost of Restoration as to which
Insurance Proceeds have been paid or are payable in respect of the applicable
Casualty is (or is expected to be) 5% of the Allocated Loan Amount applicable
to the Casualty Property or less, in lieu of the documentation referred to in
clauses (A) and (B) of the preceding proviso, Beneficiary will accept a
certificate of an officer of the General Partner certifying to the matters
described in subparts (x), (y) and (z) of said clause (A). The balance of
the Insurance Proceeds held by Beneficiary or the Trustee, or both, shall at
no time be reduced below the amount necessary to complete the Restoration
(and any Restoration costs that cannot be paid out of the remaining balance
thereof as a result of this proviso shall be deposited by Grantor with the
Beneficiary, or its agent, promptly after demand therefor, out of Grantor's
own funds). Upon receipt by Beneficiary or the Trustee of the documents
required and the subsequent payment in full of the costs of Restoration, the
balance, if any, of any Insurance Proceeds shall be applied first, to the
Reserve Account to the extent the amount or deposit in the Reserve Account is
less than the Reserve Requirement, then if the Securitization has been
effected, to the Finance Trustee and the Servicer under the Pooling and
Servicing Agreement, if applicable, and thereafter shall be paid to Grantor
or any other Person entitled thereto; PROVIDED, HOWEVER, that all such
proceeds which pursuant to this Section 1.8.3 are payable to Grantor shall,
if an Event of Default has occurred and is continuing, be paid to Beneficiary
to be held and distributed in accordance with the provisions of Section
5.12.3 hereof.
1.9. Condemnation
1.9.1. Grantor to Give Notice, Etc.
In case of any taking during the term hereof of all or any part of the
Property, or the taking or transfer of any interest therein or right accruing
thereto, as the result of or in lieu or in anticipation of the exercise of
the right of condemnation or eminent domain by any governmental authority
(each hereinafter a "Taking"), Grantor will promptly give written notice
thereof to Beneficiary and Trustee describing the nature and extent of the
Taking
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or any potential Taking, or the nature of the proceedings and negotiations
for such Taking or potential Taking and the nature and extent of the Taking
or potential Taking which might result therefrom, as the case may be.
Trustee or Beneficiary, or both, may appear in any proceedings for a Taking
or potential Taking or any negotiations relating to a Taking or potential
Taking. Grantor will promptly give the Trustee and Beneficiary copies of all
notices, pleadings, determinations, and other papers related to any such
Taking or potential Taking proceeding. The Grantor will, in good faith and
with due diligence, file and prosecute its claims for any award or payment on
account of any Taking (hereinafter an "Award"), and will pay all costs and
expenses (including, without limitation, reasonable attorneys' and
accountants' fees and charges and the reasonable expenses of the Trustee and
of Beneficiary) in connection with any such Taking, including expenses
incurred in seeking and obtaining any Award. Such costs and expenses, to the
extent advanced or paid by Beneficiary or the Trustee, shall be deemed paid
on behalf of Grantor, shall constitute indebtedness secured by this Deed of
Trust, shall be repayable by Grantor upon demand and shall bear interest at
the Prime Rate (as defined in the Loan Agreement) plus one percentage point
(1%) from the date of demand until paid, provided that Trustee and
Beneficiary shall have no obligation to make such advances or payments.
1.9.2. Total and Substantial Taking
In the case of (i) a Taking of the fee or leasehold of an entire
Individual Property, or (ii) a Taking resulting in the imposition of a
perpetual easement on an entire Individual Property that materially impairs
the operation of such Individual Property, or (iii) a Taking that adversely
affects the cash flow from an Individual Property in any material respect and
as to which any necessary Restoration cannot reasonably be expected to be
completed within 12 months from the date of the Taking and Restoration as
defined in Section 1.8.2 is not required under any applicable Ground Lease or
not otherwise permitted under Section 1.8.2 or (iv) if a Ground Lease affects
an Individual Property, a Taking occurs that results in a termination of the
Ground Lease pursuant to its terms, then, in any such event, any Award shall
be collected and paid over to the Beneficiary to be held by Beneficiary in
accordance with the provisions of Section 1.8.3 and Section 5.12.3 hereof and
the amount thereof (net of any amounts necessary to avoid or eliminate any
hazardous condition on the Individual Property and/or to prevent imminent and
substantial physical deterioration of the Individual Property), shall be
applied by Beneficiary (a) (i) if applied prior to the first day of the
Defeasance Period, to prepayment of the outstanding principal balance of the
Mortgage Note without the requirement of a Yield Maintenance Payment, or (ii)
if applied during the Defeasance Period and after the Securitization has
occurred, to the purchase of U.S. Obligations in accordance with Section 2.5
of the Loan Agreement, or (iii) if applied after the Defeasance Period, to
prepayment of the outstanding principal balance of the Mortgage Note in
accordance with Sections 2.6 and 2.7 of the Loan Agreement, without the
requirement of a Yield Maintenance Payment and (b) to the payment of all
other indebtedness which this Deed of Trust secures in such order as is
contemplated under the Loan Documents; PROVIDED, HOWEVER, that such
prepayment must be in an amount at least equal to the greater of (A) the
Allocated Loan Amount and (B) the sum of the Net Sales Proceeds received by
Grantor from the sale of the affected Individual Property or the part thereof
that remains following the Taking (plus any remaining Award not previously
applied to repayment of the Loan or Restoration), but in no event more than
the Release Price, regardless of the amount of the Award and shall be payable
by Grantor (and the amounts described in the immediately preceding
parenthetical phrase shall not be deducted from the applicable Award to the
extent that the same shall not be sufficient to pay the Allocated Loan Amount
plus such interest).
1.9.3. Partial and Temporary Taking
In the case of any Taking other than a Taking referred to in Section
1.9.2 hereof, and in case such Taking requires repairs to or Restoration of
the affected Individual Property in order to maintain the quality of the
operations of the Individual Property, any Award shall be paid over to
Grantor or Beneficiary, as applicable, to be used or to be held and
distributed in accordance with the provisions of Sections 1.8.3 and 5.12.3
hereof in the same manner as if such Taking were a Casualty affecting such
Individual Property and as if such Award constituted Insurance Proceeds
relating thereto, except that any amount of the Award not used to pay for any
necessary Restoration shall be applied by Beneficiary to the prepayment of
the Mortgage Note, and to the payment of all other indebtedness which this
Deed of Trust secures, all in the manner contemplated by Section 2.4.3 of the
Loan Agreement.
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1.10 Notices Concerning the Property
Grantor shall deliver to Beneficiary promptly upon receipt of same,
copies of all notices, certificates, documents, and instruments received by
it which materially affect the Property as a whole, any Individual Property
or Beneficiary's rights hereunder.
1.11 Alterations
1.11.1 Alteration Conditions
Provided that no Event of Default shall have occurred and be continuing,
Grantor may, subject to the terms of this Section 1.11.1 undertake any
alteration, expansion, improvement, demolition or removal (each, an
"ALTERATION") of any Individual Property or any portion thereof so long as
such Alteration (i) is undertaken with Beneficiary's prior written consent
where the estimated cost of the Alteration exceeds 5% of the Allocated Loan
Amount applicable to such Individual Property, (ii) is undertaken in
accordance with the applicable provisions of this Deed of Trust and the other
Loan Documents, (iii) is permitted by any applicable Ground Lease, (iv) is
paid for from reserves established by the Grantor or from capital
contributions by the partners of Grantor that are deposited with Beneficiary
or the Servicer, as applicable, prior to the commencement of such work, which
amounts (including, in either case, additional deposits made from time to
time to prevent a deficiency between the amount then on deposit with
Beneficiary and the amount reasonably estimated at such time to complete the
Alteration) shall be held by Beneficiary (or Servicer on its behalf in
accordance with Section 5.12.3 hereof), and (v) could not reasonably be
expected (A) to decrease the value of the Individual Property, (B) to impair
the utility and operation of the Individual Property in a manner consistent
with its current use and operation and as required by the Loan Documents, (C)
upon completion, to reduce the Net Operating Income from the Individual
Property below the level available immediately prior to commencement of such
Alteration (except in the case of tenant improvement work), (D) to result in
any Lien being placed on the Individual Property (other than mechanics' liens
filings for amounts not yet due and payable that are not yet forecloseable
under the applicable Laws of the State of California) or (E) to adversely
affect the ability of the Grantor to pay and perform the Obligations or make
principal and interest payments with respect to the Mortgage Note as and when
due. Any Alteration which involves an estimated cost of more than 5% of the
Allocated Loan Amount applicable to the Individual Property shall be
conducted under the supervision of a Qualified Supervising Professional
selected by Beneficiary, to oversee such Alteration, and no such Alteration
as to which plans and specifications are required by any Laws and which
involves an estimated cost of more than 5% of the Allocated Loan Amount
applicable to the Individual Property shall be undertaken until detailed
plans and specifications and cost estimates therefor have been approved in
writing by Beneficiary and such Qualified Supervising Professional. Such
plans and specifications may be revised at any time and from time to time
provided that material revisions of such plans and specifications are
approved by Beneficiary, such approval not to be unreasonably withheld,
together with the written approval thereof by such Qualified Supervising
Professional. All work done in connection with any Alteration shall be
performed with due diligence in a good and workmanlike manner, all materials
used in connection with any Alteration shall not be less than the standard of
quality of the material currently used at the Individual Property, and all
work performed and all materials used shall be in accordance with all
applicable Laws and insurance requirements.
1.11.2 Right to Inspect
Beneficiary and any Persons authorized by it at all reasonable times and
upon reasonable notice may enter and examine the Individual Property and may
inspect all work done, labor performed and materials furnished in respect of
any Alteration. Beneficiary shall not have any duty to make any such
inspection and shall not have any liability or obligation for making or not
making any such inspection.
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1.11.3 Cooperation
Beneficiary will cooperate with Grantor and execute and deliver to
Grantor such instruments and agreements as are reasonably requested of it by
Grantor, at Grantor's expense, in order to consummate or facilitate any
Alteration permitted hereby (provided the same shall not subject Beneficiary
to any risk of liability or cost not paid for by Grantor).
1.12. Indemnification by the Grantor
Grantor shall protect, defend, and indemnify Beneficiary and the Trustee,
and each of Beneficiary's and the Trustee's officers, directors and employees
(collectively the "Indemnitees") from and against any and all losses,
liabilities, obligations, claims, damages, penalties, causes of action,
fines, judgments, penalties, charges, costs, and expenses (including, without
limitation, reasonable attorneys' and accountants' fees and charges, whether
based on private agreements or in tort, contract, implied or express
warranties, statute, regulation, common law, or otherwise, imposed upon or
incurred by or asserted against such Indemnitee (each a "Claim" and
collectively "Claims") including Claims in connection with any investigative,
administrative or judicial proceedings, by reason of:
1.12.1. the Lien of this Deed of Trust on the Property or any
interest therein, or receipt of any rent or other sum from the Property;
1.12.2. any accident to, injury to or death of persons or loss of
or damage to property occurring on or about the Property or the adjoining
sidewalks, curbs, vaults or vault space, if any, streets or ways;
1.12.3. the ownership, leasing, use, non-use or condition of the
Property or the adjoining sidewalks, curbs, vaults or vault space, if any,
streets or ways;
1.12.4. any failure on the part of Grantor to perform or comply
with any of the terms of this Deed of Trust, the Mortgage Note, the Loan
Agreement, any other Loan Document, or any agreement or document referred to
herein or therein; or
1.12.5. performance of any labor or services or the furnishing of
any materials or other property in respect of the Property or any part
thereof for construction or maintenance or otherwise.
The provisions of this Section 1.12 shall survive the termination of
this Deed of Trust; PROVIDED, HOWEVER, that, notwithstanding anything
contained in this Section 1.12 to the contrary, the foregoing indemnity
provisions in favor of any Indemnitee shall not extend to claims arising out
of the gross negligence or willful misconduct of such Indemnitee. Any
amounts payable to any Indemnitee under this Section 1.12 which are not paid
within ten (10) days after written demand therefor shall bear interest at the
lesser of (i) a rate per annum equal to the Default Interest Rate or (ii) the
maximum rate per annum then permitted by law from the date of such demand
and, to the fullest extent permitted by law, shall be secured by this Deed of
Trust. In the event any action, suit or proceeding is brought against any
Indemnitee by reason of any such occurrence, notice thereof shall be given to
Grantor promptly after such Indemnitee becomes aware of any Claim or threat
of Claim against which such Indemnitee is indemnified hereunder. Grantor,
upon the request of the Indemnitees and at Grantor's expense, shall resist
and defend such action, suit or proceeding or cause the same to be resisted
and defended by counsel designated by Grantor and reasonably acceptable to
the Indemnitees. The Indemnitees will, insofar as is possible without
risking material conflicts of interests, coordinate their claims under this
Section 1.12 and act through a single counsel.
1.13. Expenses
Grantor, on demand, shall pay or reimburse (a) Beneficiary and the
Trustee for all reasonable costs and expenses, including, without limitation,
reasonable attorneys' fees and charges, incurred by Beneficiary or the
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Trustee in any action, legal proceedings or dispute of any kind with respect
to which Beneficiary or the Trustee are made parties, or in which any appear
as party plaintiff or defendant, affecting the Property or any part thereof,
this Deed of Trust or the indebtedness secured hereby, including, without
limitation, any Taking involving any of the Property or any action to protect
the security hereof or thereof and (b) the Finance Trustee and the Servicer,
if applicable, for any amounts required to be paid pursuant to the Pooling
and Servicing Agreement and any amounts described in clauses (a) and (b)
above that are paid by Beneficiary or the Trustee and not reimbursed as
aforesaid shall be added to the Obligations secured by the Lien of this Deed
of Trust.
1.14. Monthly Escrow Deposits
Without limiting its obligations under the Cash Management Procedures,
Grantor, upon request of Beneficiary, following an Event of Default, shall
deposit in escrow with Beneficiary monthly, commencing on the due date of the
next installment of principal and/or interest under the Mortgage Note, a sum
which, in the good faith estimation of Beneficiary shall be equal to
one-twelfth of the taxes, assessments, and hazard insurance premiums on the
Property coming due in the next succeeding 12 months, and such escrow
deposits shall be held by the Beneficiary free of any liens or claims on the
part of creditors, and shall, except as otherwise provided in this Section
1.14, be used by Beneficiary to pay taxes, assessments, and insurance
premiums on the Property as the same accrue and are payable. To the extent
anything in this Section 1.14 conflicts with the requirements of the Cash
Management Procedures, the provisions of the Cash Management Procedures shall
be controlling. If the amount of such escrow deposits is insufficient to pay
the taxes, assessments, and insurance premiums in full as the same become
payable, Grantor shall immediately pay to Beneficiary such additional sums as
are necessary in order for Beneficiary to pay such taxes, assessments, and
insurance premiums in full as they become due. If the amount of such escrow
deposits shall exceed payments made by Beneficiary for such taxes,
assessments, and insurance premiums, the excess so deposited shall be
credited to subsequent deposits to be made by Grantor under this Section
1.14. Upon the occurrence and during the continuation of any Event of
Default, Beneficiary, may, at its option, apply any money in the fund
resulting from said escrow deposits to the payment of the Obligations in the
manner and in the order contemplated by Section 2.4.3 of the Loan Agreement.
1.15 Further Assurances
At any time, and from time to time, upon request by Beneficiary or the
Trustee, as applicable, Grantor, at its expense, shall make, execute,
deliver, and record, or cause to be made, executed, delivered, and recorded,
any and all further instruments, certificates, and other documents, and shall
take all such further actions as may, in the reasonable opinion of
Beneficiary or the Trustee be necessary or desirable in order to effectuate,
complete, perfect, continue, and/or preserve the obligations of Grantor under
this Deed of Trust, the lien hereof, and all modifications, extensions, and
other amendments hereof or hereto.
1.16 Additions to Security
All right, title, and interest of Grantor in and to all extensions,
improvements, betterments, renewals, substitutes, and replacements of, and
all additions and appurtenances to the Property, hereafter acquired by or
released to the Grantor or constructed, assembled or placed by Grantor on the
Property, and all conversions of the security constituted thereby,
immediately upon such acquisition, release, construction, assembling,
placement or conversion, as the case may be, and in each such case, without
any further pledge, grant of security interest, conveyance, assignment or
other act by Grantor of any kind, shall, to the fullest extent permitted by
law, become subject to the lien of this Deed of Trust as fully and
completely, and with the same effect, as though now owned by Grantor and
specifically described in the granting clauses hereof, but at any and all
times Grantor shall execute and deliver to Beneficiary or the Trustee, as
applicable, any and all such further assurances, deeds of trust, conveyances
or assignments thereof as Beneficiary or the Trustee, as applicable, may
reasonably require for the purpose of expressly and specifically subjecting
the same to the lien of this Deed of Trust.
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1.17. U.C.C. Security Agreement and Fixture Filing
1.17.1 Grant of Security
This Deed of Trust is intended to be, among other things, a security
agreement within the meaning of the Uniform Commercial Code as in effect in
each of the State of New York and the State of California with respect to all
Property in which a security interest may be created and perfected under the
Uniform Commercial Code (the "U.C.C. Collateral"). Grantor hereby grants to
Beneficiary a security interest in and to all of Grantor's right, title, and
interest in all such U.C.C. Collateral to secure the Obligations. Grantor
hereby agrees that it will not change the location of its principal place of
business or the place where its books and records are kept from the location
described in Section 5.5 of the Loan Agreement without first giving
Beneficiary at least thirty (30) days' advance written notice thereof. Any
completely executed counterpart of this instrument may be filed as a mortgage
on real property or fixtures, as a security agreement or financing statement
on personal property, or as both.
1.17.2. Financing Statements
Grantor shall cause financing and continuation statements and other
instruments with respect to the U.C.C. Collateral at all times to be kept
recorded, filed or registered in such manner and in such places as may be
required by law as fully as possible to evidence, perfect and secure the
interests of Beneficiary in all of the U.C.C. Collateral, and shall pay all
filing fees in connection therewith.
1.17.3. Multiple Remedies
If an Event of Default shall have occurred and be continuing, Beneficiary
shall have the option of proceeding, to the extent permitted under applicable
law, as to both real and personal property in accordance with its rights and
remedies in respect of the real property as an alternative to proceeding in
accordance with the provisions of the U.C.C., and Beneficiary may exercise
any and all of the other rights of a secured party under the U.C.C. All of
Beneficiary's rights and remedies hereunder, under any other Loan Document,
at law, under statute or otherwise shall be deemed cumulative and not
exclusive or exhaustive, and the exercise of any one remedy shall not impair
Beneficiary's right simultaneously or at any time or in any order to exercise
any other remedy nor shall the exercise of any remedy in one case impair or
otherwise affect Beneficiary's right or ability to exercise such remedy
contemporaneously or again in the same case or in any other case.
1.17.4. Waiver of Rights
To the extent permitted under applicable law, Grantor waives all rights
of redemption after foreclosure and all other rights and remedies of a debtor
under the Uniform Commercial Code or other applicable law, and all
formalities prescribed by law relative to the sale or disposition of the
U.C.C. Collateral (other than notice of sale) after the occurrence and during
the continuation of an Event of Default and all other rights and remedies of
Grantor with respect thereto. In exercising its right to take possession of
the U.C.C. Collateral upon the occurrence and during the continuation of an
Event of Default hereunder, Beneficiary, personally or by its agents or
attorneys, and subject to the rights of any Tenant (as hereinafter defined),
may enter upon any part of the Land without being guilty of trespass or any
wrongdoing, and without liability for damages thereby occasioned, except
damages arising from Beneficiary's gross negligence or willful misconduct.
In the event Beneficiary elects to proceed with respect to the U.C.C.
Collateral, separately from the real property, Beneficiary shall give at
least ten (10) days' notice of the sale of the U.C.C. Collateral, which shall
for all purposes be deemed to be commercially reasonable.
1.17.5. Expenses of Disposition of the Properties
Grantor shall reimburse the Beneficiary, on demand, for all reasonable
expenses of retaking, holding, preparing for sale, lease or other use or
disposition, selling, leasing or otherwise using or disposing of the U.C.C.
- 19 -
Collateral which are incurred, including all reasonable attorneys' fees and
expenses, and all such expenses shall be added to Grantor's Obligations
secured hereby.
1.17.6. Fixture Filing
To the fullest extent permitted by law, this instrument, upon recording
or registration in the real estate records of the proper office of each City
or County in which a Building is located, shall constitute a "fixture-filing"
within the meaning of Sections 9-313 and 9-402 of the U.C.C. (or the local
state-law equivalents of such sections). The address of the Grantor, which
is the "Debtor" for purposes of the U.C.C. and this Section 1.17, and
Beneficiary, which is the "Secured Party" for purposes of the U.C.C. and this
Section 1.17, from whom information regarding the U.C.C. Collateral may be
obtained, are as stated in Section 5.1 of this Deed of Trust. Grantor agrees
to sign any separate "fixture filing" financing statements or similar
instruments as Beneficiary may request to confirm and perfect the security
interest in fixtures intended to be created by this Section 1.17.6.
1.18. Ground Leases
1.18.1. Ground Lease
Grantor shall timely perform and observe or cause to be performed or
observed in all material respects the terms, covenants and conditions
required to be performed and observed by Grantor under the Ground Leases, if
any, such that there will be no termination, loss or forfeiture of any of the
Ground Leases and no material and adverse impairment of the value of any
Individual Property or the Beneficiary's interest under this Deed of Trust,
including without limitation, the following:
(i) Pay when due, all payments (including without
limitation, payments of rent) and promptly perform all of the covenants and
agreements required to be paid, performed and observed by Grantor under each
Ground Lease and do all things necessary to preserve and to keep unimpaired
its rights thereunder;
(ii) Promptly notify Beneficiary of any default under any
Ground Lease of which Grantor is aware and provide Beneficiary with copies of
any notices delivered in connection therewith;
(iii) Promptly enforce the performance and observance in
all material respects of all of the covenants and agreements required to be
performed and/or observed by the landlord under each Ground Lease.
1.18.2. No Amendments
Without the prior written consent of Beneficiary, Grantor shall (i) not
(A) cancel, release, terminate or surrender any Ground Lease, if any, or
permit any cancellation, release, termination or surrender thereof, or (B)
amend, modify or alter the terms of any Ground Lease in any material respect,
or (C) waive, excuse, condone or in any way release or discharge in any
material respect the other party or parties thereto of or from the
obligations, covenants, conditions and agreements by such party to be
performed thereunder, (ii) give Beneficiary prompt notice of any notice of
default from the lessor under a Ground Lease, which notice shall include a
copy of the notice given or received by it, whether or not Beneficiary may be
entitled to such notice directly from such lessor, (iii) promptly furnish to
Beneficiary upon Beneficiary's reasonable request any and all information
concerning the performance by Grantor of the provisions of any Ground Lease,
and (iv) permit Beneficiary or its representative at all reasonable times to
make investigation or examination concerning the performance by it of the
provisions of each Ground Lease. Within ten (10) days after receipt of a
written request from Beneficiary, Grantor shall deposit with Beneficiary any
and all documentary evidence received by Grantor showing compliance by it
with the provisions of a Ground Lease; within fifteen (15) days after
receipt, Grantor shall deposit with the Beneficiary a copy of any notice or
other instrument or document received or given by it in any way relating to
or
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affecting a Ground Lease which may concern or affect materially the rights of
the parties under the estate of the lessor or the lessee in or under a Ground
Lease, if any.
1.18.3. Legal Actions under Agreements
If any legal action or proceeding shall be instituted to evict Grantor
under any Ground Lease, to terminate any Ground Lease, or for any other
purpose materially affecting any Ground Lease, Grantor will, promptly upon
service thereof on or to it, deliver to Beneficiary a copy of each petition,
summons, complaint, notice of motion, order to show cause and or any other
provisions, pleadings and papers, however designated, served in any such
action or proceeding. Grantor shall consult with Beneficiary prior to
instituting any action or proceeding against the lessor in connection with
such Ground Lease, but nothing herein shall obligate Beneficiary to become a
party to or participate in any such action or proceeding.
1.18.4 Right to Cure
Notwithstanding any other provision of this Deed of Trust or any Ground
Lease, if Grantor shall fail so to do, Beneficiary may (but shall not be
obligated to) take any such action that Beneficiary reasonably deems
necessary to prevent, mitigate or cure, in whole or in part, any default by
Grantor under any Ground Lease, provided that Beneficiary shall have first
given the Grantor notice of Beneficiary's intent so to act and a reasonable
time for Grantor to act to prevent or cure such default (unless there is
inadequate time for such notice without risking further damage to the
applicable Individual Property or any material adverse effect thereon or on
Beneficiary's interest therein) and if Grantor fails so to act, Beneficiary
may so act at the cost and expense of Grantor, and upon the receipt by
Beneficiary of any written notice of any such default by Grantor thereunder,
Beneficiary may rely thereon, and such notice shall constitute full authority
and protection to Beneficiary for any action taken by Beneficiary or its
agents in good faith reliance thereon. Nothing in this Section 1.18.4 shall
limit Grantor's rights under any Ground Lease to contest issues concerning
requirements of law or other similar matters to the extent permitted under
any such Ground Lease.
1.18.5. Notice of Arbitration or Appraisal
Grantor shall give the Beneficiary prompt notice of the commencement of
any arbitration or appraisal proceeding under and pursuant to the provisions
of any Ground Lease. Beneficiary shall have the right to participate in any
such arbitration or appraisal proceeding.
1.18.6. Additional Ground Lease Provisions
1.18.6.1
Upon the occurrence and during the continuation of an Event of
Default, Grantor shall not make any election or give any consent or approval
for which a right to do so is conferred upon the Grantor, as lessee under any
Ground Lease, without the Beneficiary's prior written consent. Upon the
occurrence and during the continuation of an Event of Default, all such
rights, together with all of the Grantor's rights, as lessee, to terminate,
cancel, modify, change, supplement, alter or amend any Ground Lease, shall
vest in and be exercisable solely by Beneficiary. In the event that Grantor,
as lessee under a Ground Lease, exercises any option or right to purchase any
parcel of land and/or improvements located thereon, which option or right is
granted under a Ground Lease or under a separate agreement, then upon the
vesting of the title of such parcel in it, the lien of this Deed of Trust
shall, pursuant to Section 1.18.6.3 hereof, to the fullest extent permitted
by applicable law, attach to and cover and be a Lien upon the fee title or
such other estate so acquired, and, to the fullest extent permitted by
applicable law, such fee title or other estate shall, without further
assignment, mortgage, conveyance or additional documentation of any kind,
become and be subject to the Lien of and be covered by this Deed of Trust.
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1.18.6.2
(a) To the extent permitted by applicable law, if there
shall be filed by or against Grantor a petition under the Bankruptcy Code and
Grantor, as lessee under the Ground Leases, shall determine to reject one or
more of the Ground Leases pursuant to Section 365(a) of the Bankruptcy Code,
Grantor shall give Beneficiary not less than ten (10) days' prior written
notice of the date on which Grantor shall apply to the Bankruptcy Court for
authority to reject a Ground Lease. Beneficiary shall have the right, but
not the obligation, to serve upon Grantor within such ten (10) day period a
notice stating that Beneficiary demands that Grantor assume such Ground Lease
and assign such Ground Lease to Beneficiary pursuant to Section 365 of the
Bankruptcy Code. If Beneficiary shall serve upon Grantor the notice
described in the preceding sentence, Grantor shall not seek to reject such
Ground Lease and shall comply with the demand provided for in the preceding
sentence.
(b) Grantor acknowledges that, pursuant to Section 365 of
the Bankruptcy Code, it is possible (although not intended hereby) that a
trustee in bankruptcy of the lessor under a Ground Lease (or the lessor under
a Ground Lease as a debtor-in-possession) could reject such Ground Lease, in
which case Grantor as lessee under such Ground Lease could have the election
described in Section 365(h) of the Bankruptcy Code (which election, as it may
be amended or revised from time to time, and together with any comparable
right under any other state or federal law relating to bankruptcy,
reorganization or other relief for debtors, whether now or hereafter in
effect, is called the "Election") to treat such Ground Lease as terminated by
such rejection or, in the alternative, to remain in possession for the
balance of the term of such Ground Lease and any renewal or extension thereof
that is enforceable by the lessee under such Ground Lease under applicable
non-bankruptcy law. Grantor shall not terminate or permit termination of
such Ground Lease by exercise of the Election without the prior written
consent of Beneficiary and any such Election (without the prior written
consent of Beneficiary) shall be null and void. Because each Ground Lease is
a significant part of the Beneficiary's security for the Loan, Beneficiary
does not anticipate that it would consent to termination of any Ground Lease
and shall not under any circumstances be obliged to give such consent.
Grantor acknowledges and agrees that the Election is in the nature of a
remedy and is not a property interest which can exist separate from a Ground
Lease. Therefore, it agrees that exercise of the Election in favor of
preserving the right to possession under any Ground Lease shall not be deemed
to constitute a taking or sale of any of the Property by Beneficiary and
shall not entitle Grantor to any credit against Beneficiary.
1.18.6.3
Unless Beneficiary shall otherwise elect, there shall be no
merger of any Ground Lease or any interest therein, or of the leasehold
estate created thereby, with the fee estate in the applicable Land or any
portion thereof by reason of the fact that such Ground Lease or such interest
therein or such leasehold estate may be held directly or indirectly by or for
the account of any Person who shall hold the fee estate in the applicable
Land or any portion thereof or any interest of the lessor under a Ground
Lease.
1.18.6.4
In the event that Grantor intends to acquire fee title to
leased Land as described in Section 1.18.6.1 hereof, it shall give
Beneficiary not less than ten (10) days' prior written notice of its
intention so to do.
1.18.6.5
Grantor shall promptly furnish to Beneficiary upon the
Beneficiary's reasonable request any and all information concerning the
performance by it of the provisions of each Ground Lease and shall permit the
Beneficiary or its representative at all reasonable times to make
investigation or examination concerning the performance by it of the
provisions of each Ground Lease. Within ten (10) days after receipt by
Grantor, Grantor shall deliver to Beneficiary a copy of any notice,
communication, plan, specification or other instrument or document received
or given by it in any way relating to or affecting any Ground Lease which may
materially
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concern or affect the rights of Grantor or the rights or estate of the lessor
or the lessee in or under such Ground Lease or the Land leased thereby.
1.18.6.6
Grantor shall do, or cause to be done, all things necessary to
preserve and keep unimpaired its rights as lessee under each Ground Lease and
will enforce the material obligations of the lessor under each Ground Lease
to the end that it may enjoy all of the rights granted to it thereunder.
1.18.7 Representations and Warranties Regarding Ground Lease
Grantor hereby represents and warrants that (i) each Ground
Lease is in full force and effect as between the parties thereto, (ii)
Borrower is not in default under any Ground Lease and, to the knowledge of
Borrower, there are no defaults by the other party thereto, (iii) a true and
complete copy of each Ground Lease, as amended, has been delivered to
Beneficiary and each Ground Lease constitutes the entire agreement with the
landlord thereunder, (iv) to the knowledge of Grantor, there is no existing
default or event of default which with the passage of time and/or the giving
of notice or both would constitute a default under a Ground Lease by any
party thereto, (v) each Ground Lease permits the interest of Grantor as
lessee thereunder to be encumbered by a mortgage, (vi) the term of each
Ground Lease (including all renewal options of Borrower, as lessee) extends
to a date not earlier than June 10, 2012.
1.19. Compliance with Access Laws
Grantor shall cause the Buildings and the other Improvements and the Land
to comply in all material respects with the requirements of the Americans
with Disabilities Act of 1990, all state and local laws and ordinances
related to access by the handicapped or disabled and all rules, regulations,
and orders issued pursuant thereto including, without limitation, the
Americans with Disabilities Act Accessibility Guidelines for Buildings and
Facilities (collectively, the "Access Laws"), to the extent such Access Laws
are applicable to the Buildings and the other Improvements, and give prompt
notice to Beneficiary of the receipt by Grantor of any complaints related to
violation at the Buildings or the other Improvements of any Access Laws and
of the commencement of any proceedings or investigations which relate to
compliance at the Buildings and the other Improvements with applicable Access
Laws and will use diligent efforts promptly to resolve the issues set forth
in any such complaint, proceedings or investigation.
1.20 Assignment of Rents and Grantor's Interest in Leases; Lease
Covenants
1.20.1. Assignment and License
The assignment by Grantor in Granting Clause (vi) of this Deed of Trust
of all of Grantor's right, title and interest, if any, in and to all present
and future Leases by Grantor, as landlord, to any other Person, as tenant
(each a "Tenant"), shall also be deemed to be an assignment of any and all
modifications, renewals, extensions or replacements thereof, and of any
guaranties of the Tenant's obligations under any Lease (each, a "Guaranty")
and shall be deemed to be, and is, a present, absolute, effective,
irrevocable and complete assignment by Grantor to Beneficiary of the Leases
and Guaranties and the right to collect all Rents and all other sums payable
to Grantor thereunder and apply the same against the Obligations in
accordance with the terms of this Deed of Trust, which assignment is not
conditioned upon Beneficiary being in possession of the Property. However,
so long as no Event of Default shall have occurred and be continuing, Grantor
shall have a license, to collect, receive and retain from the Tenants under
the Leases rent and all other sums payable under the Leases, to enforce the
obligations of Tenants under the Leases and to exercise all the rights and
remedies of the landlord under the Leases (except as otherwise provided
Schedule 5.11 to the Loan Agreement), subject, however, to compliance with
the provisions of this Deed of Trust. The portion of all sums received by
Grantor under the license granted hereby equal to the
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Obligations then due and owing, shall be held in trust for the benefit of
Beneficiary and used, as necessary, to pay the Obligations then due and owing.
1.20.2. Rights and Powers Assigned
The assignment referred to in Section 1.20.1 shall include, without
limitation, an assignment of
(i) the immediate and continuing right to receive and
collect all amounts payable by all Tenants, subtenants or other parties
pursuant to the Leases and any Guaranty;
(ii) all claims, rights, powers, privileges and remedies
of the Grantor, whether provided for in any Lease or Guaranty or arising by
statute or at law or in equity or otherwise, upon any failure on the part of
any Tenant to perform or comply with any term of any Lease;
(iii) all right to take all action upon the happening of a
default under any Lease or Guaranty as shall be permitted by any Lease or by
law, including, without limitation, the commencement, conduct and
consummation of proceedings at law or in equity; and
(iv) the full power and authority, in the name of Grantor
or otherwise, to enforce, collect, receive and make receipt for any and all
of the foregoing and to do any and all other acts and things whatsoever that
Grantor is or may be entitled to do under any Lease or Guaranty.
1.20.3. No Set-Off
Grantor hereby waives any and all right to assert any setoff or
counterclaim of any nature whatsoever with respect to the Obligations in any
action or proceeding by Beneficiary to collect any such Rents or other sums,
or to enforce and realize upon the lien and security interest created by this
Section 1.20 or any other Loan Documents, provided, however, that Grantor
expressly reserves the right to assert any such claim in a separate
proceeding and provided further that Grantor expressly reserves the right to
assert any claim in the same action commenced by Beneficiary if such claim is
of a mandatory or compulsory nature or would be barred or materially impaired
if not asserted in the action commenced by Beneficiary.
1.20.4. Termination of License
If any Event of Default shall have occurred and be continuing, the
license granted in Section 1.20.1 hereof shall immediately cease and
terminate, without waiver of such Event of Default, with or without notice,
any action or proceeding, or the intervention of a receiver appointed by a
court, and Beneficiary or an agent or receiver appointed by Beneficiary
(including, without limitation, Trustee) may, without regard for the adequacy
of the security for the indebtedness secured hereby, the commission of waste
or the solvency of Grantor, and subject to applicable statutory requirements,
if any, do any or all of the following:
(i) exercise any of Grantor's rights under the Leases and
Guaranties, including notifying Tenants to pay rent to an account or location
selected by Beneficiary or the Trustee;
(ii) enforce the Leases and Guaranties;
(iii) demand, collect, xxx for, attach, levy, recover,
receive, compromise and adjust, and make, execute and deliver receipts and
releases for all rents or other payments that may then be or may thereafter
become due, owing or payable with respect to the Leases and Guaranties;
(iv) demand that any sums held by Grantor with respect to
any Lease or Guaranty (including, but not limited to, any security deposits,
other deposits or prepayments) be immediately remitted to Beneficiary or the
Trustee, to the extent permitted by applicable law; and
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(v) generally, do, execute and perform any other act,
deed, matter or thing whatsoever that ought to be done, executed and
performed in and about or with respect to the Leases and Guaranties.
1.20.5. Right to Collect Upon Event of Default
Grantor hereby irrevocably authorizes and directs each Tenant under a
Lease and each other party under a Guaranty, upon receipt of notice from
Beneficiary that an Event of Default has occurred and is continuing, to pay
directly to, or as directed by, Beneficiary all rents, issues and profits
accruing or due under such Lease or Guaranty from and after the receipt of
such notice. Grantor agrees that any Tenant under a Lease or any party to a
Guaranty shall have the right to rely upon the notice from Beneficiary, and
shall pay such rents, issues and profits to or as directed by Beneficiary
without any obligation to inquire into the actual existence of any Event of
Default claimed by Beneficiary, and notwithstanding any notice from or
contrary claim by Grantor, and Grantor shall have no right or claim for any
rents, issues or profits so paid to Beneficiary.
1.20.6. Leases Unaffected
Grantor at its expense will prudently enforce in all material respects
each of the Leases and Guaranties in accordance with their terms to the
extent any failure so to enforce would reasonably be expected to have a
material adverse effect on the operation of any of the Buildings or other
Improvements, the value thereof, or the ability of Beneficiary or the
Trustee, as applicable, to exercise their rights and remedies hereunder.
Neither the execution and delivery of this Deed of Trust or any other
Security Document nor any action or inaction on the part of Beneficiary shall
release (i) any Tenant from its Lease, (ii) any guarantor from any Guaranty
or (iii) Grantor from any of its obligations under the Leases or constitute
an assumption of any such obligation under the Leases on the part of
Beneficiary. No action or failure to act on the part of Grantor shall, to
the fullest extent permitted by applicable law, adversely affect or limit the
rights of Beneficiary under this Deed of Trust or, through this Deed of
Trust, under the Leases and Guaranties.
1.20.7. Inconsistent Actions Void
During the term hereof, all rights, powers and privileges of Beneficiary
herein set forth are coupled with an interest and are irrevocable, subject to
the terms and conditions hereof, and Grantor will not take any action under
the Leases or Guaranties or otherwise which is inconsistent with this Deed of
Trust or any of the terms hereof or thereof, and any such action inconsistent
herewith or therewith shall, to the fullest extent permitted by law, be void.
Any further assignment of any rents, issues, or profits from the Property
shall to the fullest extent permitted by law be void except as permitted by
the terms hereof. To the fullest extent permitted by applicable law, Grantor
hereby waives any requirement that Beneficiary commence any foreclosure
proceeding with respect to any or all of the Mortgaged Properties prior to
enforcement of any remedies pursuant to this Section 1.20, including the
right to commence and prosecute an action to appoint a receiver for rents and
all other amounts due under any Leases. Grantor will, from time to time,
upon request of Beneficiary, at Grantor's sole cost and expense, execute on a
non-recourse basis all instruments and further assurances and all
supplemental instruments and take all such actions as Beneficiary from time
to time may reasonably request in order to perfect, preserve and protect the
interests intended to be assigned to Beneficiary by this Section 1.20.
1.20.8. Satisfaction and Release
Upon satisfaction of the requirements of Section 1.22 hereof providing
for a release of the lien of this Deed of Trust, the assignment made in this
Section 1.20 and all rights hereunder assigned to Beneficiary shall cease and
terminate and shall revert to Grantor.
1.20.9. No Obligations
This Section 1.20 shall not be construed to bind Beneficiary or the
Trustee to the performance of any of the covenants, conditions or provisions
contained in any Lease or Guaranty or otherwise impose any obligation
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upon Beneficiary or the Trustee. Neither Beneficiary nor the Trustee shall
be liable for any loss sustained by Grantor resulting from any act or
omission of Beneficiary or the Trustee in managing the Property after an
Event of Default. This Section 1.20 shall not operate to place any
obligation or liability for the control, care, management or repair of any
part of the Property upon Beneficiary or the Trustee, nor for the carrying
out of any of the terms and conditions of the Leases or any Guaranty; nor
shall it operate to make Beneficiary or the Trustee responsible or liable for
any waste committed on the Land, including, without limitation, the presence
of any Hazardous Materials, or for any negligence by any person (other than
Beneficiary or the Trustee) in the management, upkeep, repair or control of
the Property resulting in loss or injury or death to any tenant, licensee,
employee or stranger. Nothing in this Section 1.20 shall be construed as
constituting Beneficiary or the Trustee a "mortgagee in possession" in the
absence of the taking of actual possession of the Property by Beneficiary.
1.20.10. Rights in Litigation and Bankruptcy
(i) If an Event of Default shall have occurred and be
continuing, Beneficiary shall have the right to proceed in its own name or in
the name of Grantor in respect of any claim, suit, action or proceeding relating
to the rejection of any Lease by or on behalf of any lessee thereunder,
including, without limitation, the right to file and prosecute, to the exclusion
of Grantor, any proofs of claim, complaints, motions, applications, notices and
other documents, in any case in respect of the lessee under such Lease under the
Bankruptcy Code.
(ii) If there shall be filed by or against Grantor a
petition under the Bankruptcy Code, and Grantor, as lessor under any Lease,
shall determine to reject such Lease pursuant to Section 365(a) of the
Bankruptcy Code, then Grantor shall give Beneficiary not less than fifteen
(15) days' prior notice of the date on which Grantor shall apply to the
bankruptcy court for authority to reject such Lease. Beneficiary shall have
the right, but not the obligation, to serve upon Grantor within such fifteen
(15) day period a notice stating that (a) Beneficiary demands that Grantor
assume and assign such Lease to Beneficiary pursuant to Section 365 of the
Bankruptcy Code and (b) Beneficiary covenants to cure or provide adequate
assurance of future performance under such Lease. If Beneficiary serves upon
Grantor the notice described in the preceding sentence, Grantor shall not
seek to reject such Lease and shall comply with the demand provided for in
clause (a) of the preceding sentence within thirty (30) days after the notice
shall have been given, subject to the performance by Beneficiary of the
covenant provided for in clause (b) of the preceding sentence.
1.20.11. Additional Lease Provisions
1.20.11.1
Grantor covenants and agrees (i) to perform punctually all
obligations and agreements to be performed by it as lessor or party thereto
under any Lease, such that there will be no material and adverse impairment
of the value of the Property or Beneficiary's interest under this Deed of
Trust, and (ii) to do all things necessary or appropriate to compel
performance by each Tenant of such Tenant's obligations and agreements under
the Lease to which such Tenant is a party. Except as otherwise permitted
hereunder, Grantor shall not give any notice, approval or consent or exercise
any rights under or in respect of any Lease or any of such other instruments,
which action, omission, notice, approval, consent or exercise of rights would
release any Tenant or other party from, or reduce any Tenant's or any other
party's obligations or liabilities under, or would result in the termination,
surrender or assignment of, or the amendment or modification of in any
material adverse respect, or would impair the validity of, any Lease or any
of such other instruments, if any of the foregoing would affect any
Individual Property in any material adverse respect, without the prior
written consent of Beneficiary, and any attempt to do any of the foregoing
without such consent shall be of no force and effect.
1.20.11.2
Grantor will promptly deliver to Beneficiary a copy of any
notice from any Tenant under any Material Lease (defined below), in any such
case claiming that Grantor is materially in default in the performance or
observance of any of the terms, covenants or conditions thereof to be
performed or observed by
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Grantor and Grantor will provide in each Material Lease at the Property
executed after the date hereof to which Grantor is a party that any tenant
delivering any such notice shall send a copy of such notice directly to
Beneficiary. The term "Material Lease" as used herein shall mean (i) any
Lease covering seven and one-half percent (7.5%) or more of gross leaseable
area of any individual Building on any Individual Property or gross leaseable
area of any individual Building on any Individual Property in an amount of at
least 8,000 rentable square feet and (ii) any Lease which represents greater
than five percent (5%) of income from Rents derived from any Individual
Property.
1.20.11.3
Grantor may, without the consent of Beneficiary, enter into any
Lease after the date hereof or renew or extend any existing Lease on the
following terms and conditions: (i) the Lease is written on Grantor's
standard form of Lease that has been approved by Beneficiary (as revised from
time to time, the "Approved Form") without any material changes to the
provisions of the Approved Form relating to lender protections (including
subordination, non-disturbance and attornment), defaults and remedies, (ii)
the annual base rental income payable under the Lease would not exceed ten
percent (10%) of the annual base rental income from the Individual Property
to which such Lease relates, (iii) the Lease covers less than the greater of
(A) ten percent (10%) of the total rentable square footage in the Individual
Property to which such Lease relates or (B) 8,000 rentable square feet, (iv)
the Lease is for a term of not more than fifteen (15) years; provided that if
the lease term extends beyond ten years by virtue of renewal options such
renewal options must be at a rental rate not less than 95% of the fair market
value as of the commencement of the renewal term, (v) the Lease shall be
entered into in an arms length transaction and the tenant thereunder shall be
a bona fide third party tenant that is not an Affiliate of Grantor, and (vi)
such Lease shall not have a material adverse effect on the value of the
Individual Property to which such Lease relates or the ability of Grantor to
perform the Obligations. Any other Lease may be entered into or renewed or
extended only with the consent of Beneficiary, which consent shall not be
unreasonably withheld and which consent shall be deemed granted unless
Beneficiary notifies Grantor within ten (10) Business Days of any request for
such consent that it is withholding such consent.
1.20.11.4
Grantor may, without the consent of the Beneficiary, amend,
modify or waive the provisions of any Lease, provided that such action does
not have a material adverse effect upon the value of any Individual Property,
and provided further that such Lease, as amended, modified or waived, is
otherwise in compliance with the requirements of this Deed of Trust
(including the requirements of Section 1.20.11.3 hereof) and a duplicate
original or certified copy of the amendment, modification or waiver is
delivered to the Beneficiary.
1.20.11.5
Grantor may, without the consent of Beneficiary, terminate or
permit the early termination of any Lease (other than a Material Lease) of
space or accept surrender of all or any portion of the space demised under
the Lease or acquire any Lease (other than a Material Lease) or reduce the
rentals reserved under or shorten the term of any Lease (other than a
Material Lease) so long as such action (taking into account the planned
alternative uses of the space) does not materially adversely affect the value
of any of the Property (it being agreed that termination of the Lease of a
Tenant that is in default, after any applicable notice and cure periods,
shall be considered to be for the benefit of any of the Property) or the
ability of Grantor to perform the Obligations.
1.20.11.6
Grantor shall not enter into any Lease with an Affiliate of
Grantor at any of the Property, unless (i) the space is for the use and
occupancy of one or more of such Affiliates, and (ii) the material terms of
such Lease comply with the requirements set forth in Section 1.20.11.3
hereof; provided, however, that a reasonable amount of office space not in
excess of 2500 net leaseable square feet in each Building can be
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provided to Beneficiary for the purpose of management of such Building and
the Individual Property associated therewith at less than fair market rental
or at no rental, at the Grantor's discretion. Grantor shall have the right,
subject to the provisions of this Deed of Trust, to acquire Leases by way of
assignment, surrender, acquisition or further sublease.
1.20.11.7
Upon receipt by Beneficiary of a written request from Grantor
therefor, Beneficiary shall execute and deliver to the tenant under any Lease
(other than a Lease to an Affiliate of Grantor) existing on the date hereof
or made in accordance with the provisions of this Section 1.20.11, a
non-disturbance and attornment agreement in a form reasonably satisfactory to
Beneficiary.
1.20.11.8
Grantor shall not receive or collect, or permit the receipt or
collection of, any rental or other payments under any Lease more than one (1)
month in advance of the respective period in respect of which they are to
accrue, except that (i) in connection with the execution and delivery of any
Lease or of any amendment to any Lease, rental payments thereunder may be
collected and received in advance in an amount not in excess of one (1)
month's rent and a security deposit (including advance rents as or in lieu of
a security deposit) may be required thereunder (provided that such deposits
are maintained in accordance with applicable Laws and in accordance with the
terms of this Deed of Trust and the Assignment of Leases and Rents executed
in connection herewith), (ii) Grantor may receive and collect escalation,
percentage rent and other charges in accordance with the terms of each Lease
and (iii) Grantor may receive and collect more than one month's rent in
connection with a Tenant terminating its Lease if the termination of the
Lease is permitted under this Deed of Trust.
1.20.11.9
Grantor shall at all times hold monies representing security
deposits under the Leases in the manner required by applicable Laws.
1.20.12. Assignment to Beneficiary Controlling
The rights of Trustee in the Leases and the Rents created under
Granting Clause (vi) of this Deed of Trust shall be subject to (i) the rights
of Beneficiary in the Leases and the Rents created under this Section 1.20,
and (ii) the rights of Beneficiary in the Leases and the Rents created under
the Assignment of Rents and Leases executed in connection herewith.
1.21. Environmental Covenants and Representations
Except as described in any report listed on Schedule 3.21 to the Loan
Agreement, Grantor represents and covenants that:
1.21.1.
The operations of Grantor at the Land and Improvements, and the Land
and Improvements themselves, substantially comply with all applicable
Environmental Laws;
1.21.2.
Grantor will hereafter comply with and cause the Land and
Improvements to comply with and use diligent efforts to cause its employees,
agents and contractors on the Land or the Improvements to comply with all
applicable Environmental Laws;
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1.21.3.
Grantor has obtained, and will hereafter maintain, all permits
required by applicable Environmental Laws for the operations of Grantor at
the Land and Improvements;
1.21.4.
Neither the Land and Improvements nor the Grantor's operations
thereat or thereon is subject to any order from or agreement with any
governmental authority or private party with respect to the release or
threatened release of Hazardous Materials from the Land and Improvements into
the environment;
1.21.5.
There are no pending or, to the best knowledge of the Grantor,
threatened judicial or administrative proceedings alleging a violation of any
Environmental Law with respect to the Land and Improvements or the Grantor's
operations thereon;
1.21.6.
None of the Grantor's operations at the Land and Improvements is the
subject of any investigation by any governmental authority evaluating whether
any remedial action is needed to respond to a release or threatened release
of Hazardous Materials from the Land and Improvements into the environment;
1.21.7.
Grantor has not filed any notice under any statute, regulation, or
other governmental requirement with respect to the Land and Improvements
indicating present treatment, storage or disposal of Hazardous Materials
thereon; and
1.21.8.
Grantor has not filed any notice under any applicable statute,
regulation or other governmental requirement with respect to the Land and
Improvements reporting a release of any Hazardous Materials from the Land and
Improvements into the environment.
1.22. Release
1.22.1. Satisfaction of Obligations
If Grantor shall pay the principal of and interest on the Mortgage Note
in full at maturity or earlier as permitted in accordance with the terms of
the Loan Agreement and this Deed of Trust and shall pay all other Obligations
payable to Beneficiary by Grantor hereunder and under the other Loan
Documents, then this Deed of Trust and all the other Loan Documents shall be
discharged and satisfied or, to the extent not prohibited by law, assigned to
Grantor or to any other Person at the Grantor's direction, at the Grantor's
option, without representation, recourse or warranty, other than for the acts
of the Beneficiary, at the expense of Grantor upon its written request,
except that the indemnifications of Grantor in favor of Beneficiary set forth
in Section 1.12 hereof and in the Environmental Indemnity Agreement shall
survive as set forth therein. Concurrently with such release and
satisfaction or assignment of this Deed of Trust and all the other Loan
Documents, Beneficiary will return to Grantor the Mortgage Note and all title
and other insurance policies relating to the Property and, on the written
request and at the expense of the Grantor, will execute and deliver such
proper instruments of release (including, without limitation, appropriate
U.C.C. termination statements) as may reasonably be requested by Grantor to
evidence such release and satisfaction or assignment, and any such
instrument, when duly executed by Beneficiary and duly recorded in the places
where this Deed of Trust and each other Security Document is recorded, shall
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conclusively evidence the release and satisfaction or assignment of this Deed
of Trust and the other Loan Documents. Any release of this Deed of Trust
with respect to the Property pursuant to Section 1.22.2 shall be effected in
accordance with the same procedures specified in the immediately preceding
two sentences to the extent applicable to such release.
1.22.2. Release of Building; Partial Releases
Grantor shall further be entitled to partial release of the Lien hereof
in the circumstances and on the conditions specified in Section 2.8, Section
2.9, Section 2.10 and Section 11 of the Loan Agreement as it relates to a
particular Individual Property and to a release of the Lien hereof in the
circumstances and on the conditions specified in Section 2.7 of the Loan
Agreement. Beneficiary shall also grant partial releases of the Lien hereof
on certain Property to be sold under Section 1.23 of this Deed of Trust,
contemporaneously with such sales, provided the conditions set forth in said
Section 1.23 are satisfied.
1.23. Transfers, Indebtedness and Subordinate Liens
1.23.1. Transfers
(i) Unless such action is permitted by the provisions of
this Section 1.23, Grantor will not (1) sell, assign, convey, transfer or
otherwise dispose of or encumber the Property or any of the Grantor's right,
title or interest therein, (2) mortgage, hypothecate or otherwise encumber or
grant a security interest in all or any part of the Property, (3) file a
declaration of condominium with respect to any of the Property or (4) permit
the transfer or assignment of any interest in the Grantor.
(ii) Notwithstanding the provisions of Section 1.23.1(i),
Grantor may transfer or dispose of Fixtures that are either being replaced or
that are no longer necessary in connection with the operation of the Property
free from the interest of Beneficiary under this Deed of Trust, PROVIDED that
such transfer or disposal will not adversely affect the value of any of the
Property, and will not materially impair the utility of any of the Property,
in either case as a result thereof, and PROVIDED that any new Fixtures
acquired by Grantor (and not so disposed of) shall be subject to the interest
of Beneficiary under this Deed of Trust (unless leased to the Grantor, in
which case the Grantor's interest in such lease shall be collaterally
assigned to the Beneficiary). Beneficiary shall, from time to time, upon
receipt of a certificate of an officer of the General Partner requesting the
same and confirming satisfaction of the conditions set forth above, execute a
written instrument in form reasonably satisfactory to it to confirm that such
Fixtures which are to be, or have been, sold or disposed of are free from the
interest of Beneficiary under this Deed of Trust.
1.23.2. Indebtedness
Grantor shall not incur, create or assume any Indebtedness other than
Permitted Debt (as defined in the Loan Agreement).
1.23.3. Additional Permitted Transfers
Notwithstanding the foregoing provisions of this Section 1.23.1, Grantor
without the consent of Beneficiary may (i) make transfers of portions of the
Property (by sale, ground lease, subordination of fee interest to a leasehold
mortgage, sublease or other conveyance of any interest) to any federal, state
or local government or any political subdivision thereof in connection with
(and in lieu of) Takings of any portion of the Property for dedication or
public use (and proceeds of any such transfer shall be deemed to be an Award
subject to the provisions of Section 1.9 hereof), and (ii) dedicate portions
of the Property or grant easements, restrictions, covenants, reservations and
rights of way in the ordinary course of business for traffic circulation,
ingress, egress, parking, access, water and sewer lines, telephone and
telegraph lines, electric lines or other utilities or for other similar
limited purposes benefiting the Property, PROVIDED, that no transfer,
conveyance or other encumbrance set forth in the foregoing clauses (i) and
(ii) shall impair the utility and operation of any Individual Property,
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adversely affect the value of any Individual Property, or cause any
Individual Property to be in violation of any applicable laws in each case
taken as a whole. Beneficiary hereby agrees to execute and deliver any
instrument reasonably necessary or appropriate to evidence any desired
consent to said action and, in the case of any transfers of fee interests
referred to in clauses (i) or (ii) of the first sentence of this Section
1.23.3, to release the portion of the Land affected by such Taking or such
transfer from the Lien of this Deed of Trust upon receipt by Beneficiary of:
(1) a copy of the instrument of transfer;
(2) a certificate of an officer of the General Partner stating
(x) with respect to any Taking, the consideration, if any, being paid
for the transfer and (y) that such transfer does not materially impair
the utility and operation of the Land, reduce its value or cause any
Individual Property to be in violation of any applicable laws,
including laws relating to the number of parking spaces at the
applicable Building; and
(3) as to any Taking or transfers under clauses (i) or (ii), an
endorsement to Beneficiary's title insurance policy insuring that the
priority of the Lien of this Deed of Trust is unaffected by reason of
the fact that a portion of the Land has been released from the Lien of
this Deed of Trust, the cost of any such endorsement to be paid for by
the Grantor.
All proceeds from any Takings shall be applied in accordance with the
provisions of Section 1.9 hereof.
1.23.4. Delivery of Documents to the Beneficiary
No more than fifteen (15) days after the completion of any transaction
subject to this Section 1.23, Grantor shall provide Beneficiary with copies of
executed deeds, mortgages and such other similar closing documents as may be
reasonably requested by Beneficiary.
1.24. Utility Services
Grantor will pay or cause to be paid when due all charges for all public
or private utility services, all public or private highway services, all
public or private communication services and all sprinkler systems and
protective services at any time rendered to or in connection with the
Property or any part thereof and which are incurred by or on behalf of
Grantor.
ARTICLE II
2. EVENTS OF DEFAULT
Grantor hereby agrees that the occurrence of any one or more of the
following shall constitute an Event of Default ("Event of Default") under
this Deed of Trust, entitling the Beneficiary, its successors and assigns, to
exercise the remedies set forth in Article III hereof, and any other remedies
available at law, in equity, or under the other Security Documents:
2.1. Payment Default
(a) Failure by Grantor to make any payment of principal, interest,
Defeasance Deposit or Yield Maintenance Payment due on the Mortgage Note when
the same shall become due and payable (whether at maturity, on a date fixed
for any payment or prepayment thereof, upon acceleration or otherwise) or (b)
failure by Grantor to make any other payment required under the Mortgage
Note, this Deed of Trust, or any other Loan Document when due; or
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2.2. Material Breach of Representation and Warranty
Any representation or warranty made by Grantor in this Deed of Trust or
any other Loan Document shall fail to have been true in any material and
adverse respect when made, which failure remains uncured for a period of
thirty (30) days after receipt of written notice of such failure; PROVIDED,
HOWEVER, that it shall not be an Event of Default if such failure is curable
but is not reasonably capable of being cured within such 30-day period but
Grantor shall have promptly commenced to cure within such 30-day period and
thereafter diligently pursues such cure to completion (but in no event later
than 180 days after receipt of such written notice); or
2.3. Material Breach of Covenant
Grantor shall fail to perform or comply in any material and adverse
respect with any non-monetary term, covenant or condition imposed in this
Deed of Trust or any other Loan Document, (a) which failure remains uncured
for a period of thirty (30) days after the Grantor's receipt of written
notice of such failure, or (b) in the case of any failure or breach of
covenant relating to the payment of taxes or maintenance of insurance as
provided herein, which failure remains uncured for a period of ten (10) days
after receipt of written notice by Grantor of such failure; PROVIDED,
HOWEVER, that, in the case of clause (a), it shall not be an Event of Default
if such failure is curable but is not reasonably susceptible of being cured
within such 30-day period but Grantor promptly commences to cure within such
30-day period and thereafter diligently pursues such cure to completion (but
in no event later than 180 days after receipt of such written notice);
2.4. Event of Default Under Loan Agreement
The occurrence of an "Event of Default" under the Loan Agreement; or
2.5. Ground Lease
The occurrence and continuation of an event of default (after the
expiration of any applicable grace periods) of Grantor under any Ground Lease.
ARTICLE III
3. REMEDIES
3.1. Legal Proceedings; Cost of Enforcement
3.1.1. Legal Proceedings
If an Event of Default shall have occurred and be continuing, Beneficiary
or the Trustee may institute proceedings for the complete or partial
foreclosure of this Deed of Trust or take such steps to protect and enforce
its rights whether by action, suit or proceeding in equity or at law for the
specific performance of any covenant, condition or agreement in the Mortgage
Note or in this Deed of Trust (without being required to foreclose this Deed
of Trust), or in aid of the execution of any power herein granted, or for any
foreclosure hereunder, or for the enforcement of any other appropriate legal
or equitable remedy or otherwise as Beneficiary shall elect.
3.1.2. Cost of Enforcement
Grantor shall pay within ten (10) days after written demand therefor all
costs and expenses (including, without limitation, attorneys' fees and
charges) incurred by or on behalf of Beneficiary or the Trustee in enforcing
or sustaining the lien of this Deed of Trust or the priority thereof, the
Mortgage Note, or any and all other Loan
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Documents, or occasioned by any Event of Default. Such costs and expenses
shall constitute Obligations secured by this Deed of Trust, payable on demand
and shall bear interest at the Default Interest Rate from the time of demand
until paid.
3.2. Acceleration
If an Event of Default shall have occurred and be continuing, regardless
of the pendency of any proceeding which has or might have the effect of
preventing Grantor from complying with the terms of this Deed of Trust, the
Mortgage Note, or any other Loan Document, then, in any such event, the
entire unpaid amount of the indebtedness evidenced by the Mortgage Note, this
Deed of Trust or any other Loan Documents, and any other unpaid sum secured
by this Deed of Trust, shall, at the option of Beneficiary become immediately
due and payable in full without presentment, demand, protest or notice, all
of which are hereby waived by Grantor (except to the extent notice is
expressly required herein) and shall thereafter bear interest at the Default
Interest Rate.
3.3. Right to Perform Grantor's Covenants, Etc.
If Grantor shall fail to make any payment or perform any act required to
be made or performed under this Deed of Trust, the Mortgage Note, or any
other Loan Document, within ten (10) days after written notice thereof (or
such shorter notice as shall be required to avoid a material impairment in
the value of the Property or in the Beneficiary's security, and without
notice where required to avoid such impairment), Beneficiary (or the Trustee
at the request of the Beneficiary, as applicable), without waiving or
releasing any obligation or Event of Default, may (but shall be under no
obligation to) make such payment or perform such act for the account, and at
the expense, of Grantor and may enter upon the Property or any part thereof
for such purpose and take all such actions thereon as, in the reasonable
opinion of the Beneficiary, may be necessary or appropriate therefor. All
sums so paid by Beneficiary or the Trustee and all costs and expenses
(including, without limitation, reasonable attorneys' fees and charges) so
incurred, shall constitute part of the Obligations secured by this Deed of
Trust and shall be paid by Grantor to Beneficiary or the Trustee upon demand
and, if not so paid within ten (10) days after demand, shall thereafter bear
interest at the Default Interest Rate.
3.4. Possession Upon Default
3.4.1. Surrender or Taking of Possession
If an Event of Default shall have occurred and be continuing, the
Grantor, upon demand of the Beneficiary, shall forthwith surrender to
Beneficiary or to the Trustee, as applicable, the actual possession of the
Property or any part thereof from time to time (without limit as to the
number of times) as may be designated by Beneficiary or the Trustee and, to
the extent permitted by law, Beneficiary or the Trustee may enter and take
possession of all or any such part of the Property and may exclude Grantor
and the Grantor's agents and invitees wholly therefrom. If Grantor shall
fail to surrender to Beneficiary or to the Trustee, as applicable, the actual
possession of such Property upon demand, then Beneficiary or the Trustee, to
the extent permitted under applicable law, without further notice, may (1)
enter upon and take possession of the Property or any part thereof by force,
summary proceedings, ejectment or otherwise; (2) remove Grantor and all other
persons from the Property; and (3) remove from the Property any and all
property owned by third parties (so long as reasonable measures for the
safekeeping of such third party property are taken).
3.4.2. Entering into Possession
Upon every such entering and taking of possession, Beneficiary or the
Trustee, as applicable, may hold, store, use, operate, manage, control, and
maintain the Property and conduct the business thereof, which right shall
include, without limitation, the right to (1) make all necessary and proper
repairs, renewals, replacements, additions, betterments and improvements
thereto and thereon and purchase and otherwise acquire additional fixtures,
personalty, and other property as may be necessary to preserve, maintain or
restore the value thereof to
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the condition required herein or in any other Loan Document; (2) insure the
Property or keep the Property insured; (3) manage and operate the Property
and exercise all the rights and powers of the Grantor, in its name or
otherwise, with respect to the Property; and (4) enter into any agreements
with respect to the exercise by others of any of the powers herein granted to
Beneficiary or the Trustee, all as Beneficiary or the Trustee may from time
to time determine to be necessary or desirable. Beneficiary or the Trustee
also may collect and receive all of the earnings, income, rents, profits,
issues and revenues of the Property or any part thereof, including those past
due as well as those accruing thereafter; PROVIDED, HOWEVER, that any amount
so received by Beneficiary or the Trustee shall be applied as provided in
Section 3.12 hereof. Beneficiary or the Trustee shall not be liable for or by
reason of any such entry, taking of possession or removal, or holding,
operation or management, except for liability arising out of the gross
negligence or willful misconduct of the Beneficiary, the Trustee, or the
agents, officers, directors or employees of Beneficiary or the Trustee. All
sums expended by Beneficiary or the Trustee pursuant to this Section 3.4.2,
including any such amount in excess of the principal amount of the Mortgage
Note, shall be deemed to have been advanced to Grantor by the Beneficiary,
shall be secured by this Deed of Trust and shall be paid by Grantor to
Beneficiary upon demand therefor and, if not so paid within ten (10) days
after written demand, shall thereafter bear interest at the Default Interest
Rate.
3.4.3. Satisfaction of Default
Whenever all Events of Default have been cured and satisfied, Beneficiary
may, in its sole and absolute discretion, upon receipt of a written request
therefor from Grantor, surrender possession or direct the Trustee, to
surrender possession of the Property to Grantor, provided that the right of
Beneficiary or the Trustee, as applicable, to take possession of the Property
from time to time pursuant to Section 3.4.1 shall continue to exist
unimpaired and undiminished if any subsequent Event of Default shall occur
and be continuing.
3.5. Sale of Property
Beneficiary or the Trustee may cause the Property and all estate,
right, title and interest, claim and demand therein, or any part thereof to
be sold as follows:
3.5.1.
Beneficiary may proceed as if all of the Property were real
property, in accordance with Section 3.5.4 below, or Beneficiary may elect to
treat any of the Property which consists of a right in action or which is
property that can be severed from the premises without causing structural
damage thereto as if the same were personal property, and dispose of the same
in accordance with Section 3.5.3 below, separate and apart from the sale of
real property, with the remainder of the Property being treated as real
property.
3.5.2.
Beneficiary may cause any such sale or other disposition to be
conducted immediately following the expiration of any grace period, if any,
herein provided (or required by law) or Beneficiary may delay any such sale
or other disposition for such period of time as Beneficiary deems to be in
its best interest. Should Beneficiary desire that more than one such sale or
other disposition be conducted, Beneficiary may, at its option, cause the
same to be conducted simultaneously, or successively on the same day, or at
such different days or times and in such order as Beneficiary may deem to be
in its best interest.
3.5.3.
Should Beneficiary elect to cause any of the Property to be disposed
of as personal property as permitted by Section 3.5.1 above, it may dispose
of any part thereof in any manner now or hereafter permitted by Division 9 of
the U.C.C. or in accordance with any other remedy provided by law. Both
Grantor and Beneficiary shall be eligible to purchase any part of all of such
property at any such disposition. Any such disposition may be either public
or private as Beneficiary may so elect, subject to the provisions of the UCC.
Beneficiary shall give
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Grantor at least five (5) days prior written notice of the time and place of
any public sale or other disposition of such property or of the time at or
after which any private sale or any other intended disposition is to be made,
and if such notice is sent to Grantor it shall constitute reasonable notice
to Grantor.
3.5.4.
Should Beneficiary elect to sell the Property which is real property
or which Beneficiary has elected to treat as real property, upon such
election Beneficiary or the Trustee shall give such Notice of Default and
Election to Sell (a "Notice of Sale") as may then be required by law.
Thereafter, upon the expiration of such time and the giving of such Notice of
Sale as may then be required by law, the Trustee, at the time and place
specified in the Notice of Sale, shall sell such Property, or any portion
thereof specified by Beneficiary, at public auction to the highest bidder for
cash in lawful money or the United States, subject, however, to the
provisions of Section 3.5.5 below. Beneficiary may, from time to time,
postpone the sale by public announcement thereof at the time and place
noticed therefor. If the Property consists of several lots or parcels,
Beneficiary may designate the order in which such lots or parcels may be
offered for sale or sold, and may direct that such property be sold in one
parcel, as an entirety, or in such parcels as Beneficiary, in its sole
discretion, may elect. Grantor expressly waives any right which it may have
to direct the order in which any of the Property shall be sold, and its
rights, if any, to require that the Property be sold as separate tracts,
lots, units or parcels. Any person, including Grantor, the Trustee or
Beneficiary, may purchase at the sale. Upon any sale, the Trustee shall
execute and deliver to the purchaser or purchasers a deed or deeds conveying
the property so sold, but without any covenant or warranty whatsoever,
express or implied, whereupon such purchaser or purchasers shall be let into
immediate possession.
3.5.5.
Upon any sale of the Property, whether made under a power of sale
herein granted or pursuant to judicial proceedings, if the holder of the
Mortgage Note is a purchaser at such sale, it shall be entitled to use and
apply all or any portion of the indebtedness then secured hereby for or in
settlement or payment of all or any portion of the purchase price of the
property purchased.
3.5.6.
In the event of a sale or other disposition of any such Property or
any part thereof, and the execution of a deed or other conveyance pursuant
thereto, the recitals in the deed or deeds of facts (such as of a default,
the giving of notice of default and notice of sale, demand that such sale
should be made, postponement of sale, terms of sale, sale, purchaser, payment
of purchase money, and any other fact affecting the regularity or validity of
such sale or disposition) shall be conclusive proof of the truth of such
facts; and any such deed or conveyance shall be conclusive against all
persons as to such facts recited therein.
3.6. Appointment of Receiver
Beneficiary shall be entitled, as a matter of strict right, without
notice and upon ex parte application, and without regard to the value or
occupancy of the security, or the solvency of Grantor, or the adequacy of the
Property or other collateral as security for the Mortgage Note, to have a
receiver appointed to enter upon and take possession of the Property, collect
the Rents and apply the same as the court may direct, such receiver to have
all the rights and powers permitted under the laws of the jurisdiction in
which the Property is located. Grantor hereby waives any requirements on the
receiver or Beneficiary to post any surety or other bond. Beneficiary or the
receiver may also take possession of, and for these purposes use, any and all
personalty which is a part of the Property and used by Grantor in the rental
or leasing thereof or any part thereof. The expense (including the
receiver's fees, counsel fees, costs and agent's compensation) incurred
pursuant to the powers herein contained shall be secured by this Indenture.
To the extent not prohibited by applicable law, Beneficiary shall (after
payment of all costs and expenses incurred) apply such Rents received by it
in the order set forth in Section 3.12 of this Deed of Trust. The right to
enter and take possession of the Property, to manage and operate the same,
and to collect the Rents, whether by receiver or otherwise, shall be
cumulative to any other right or remedy
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hereunder or afforded by law, and many be exercised concurrently therewith or
independently thereof. Beneficiary shall be liable to account only for such
Rents actually received by Beneficiary.
3.7. Trustees Authorized to Execute Deeds, Etc.
Grantor irrevocably appoints the Trustee its true and lawful
attorneys-in-fact, with full power of substitution, in its name and stead and
on its behalf, for the purpose of effectuating any sale, assignment, transfer
or delivery for the enforcement of this Deed of Trust pursuant to foreclosure
or power of sale or otherwise, to execute and deliver all such certificates,
deeds, bills of sale, assignments, and other instruments as the Trustee may
reasonably consider necessary or appropriate. Grantor hereby ratifies and
confirms all that such attorneys-in-fact or any substitute therefor shall
lawfully do by virtue hereof. Nevertheless, if so requested by the Trustee
or any purchaser, Grantor shall ratify and confirm any such sale, assignment,
transfer or delivery by executing and delivering to the Trustee or such
purchaser all proper certificates, deeds, bills of sale, assignments,
releases, and other instruments as may reasonably be designated in any such
request.
3.8. Purchase of the Property by the Beneficiary
Beneficiary may be a purchaser of the Property or of any part thereof or
of any interest therein at any sale thereof, whether pursuant to foreclosure
or power of sale or otherwise hereunder (subject to applicable provisions of
the U.C.C.), and may apply upon the purchase price the indebtedness secured
hereby owing to the Beneficiary. Beneficiary shall, upon any such purchase,
acquire good title to the properties so purchased, free of the lien of this
Deed of Trust and, to the fullest extent permitted by applicable law, free of
all rights of redemption in Grantor and free of all liens and encumbrances
subordinate to this Deed of Trust.
3.9. Foreclosure of Personalty
Upon the occurrence and during the continuation of an Event of Default,
should Beneficiary or the Trustee, as applicable, elect to cause any of the
Property to be disposed of as personal property because the same consists of
a right of action or property that can be severed from the Land or the
Improvements without causing material damage thereto, Beneficiary, or the
Trustee, as applicable, may dispose of all or any part thereof in any manner
now or hereafter permitted under the U.C.C. or in accordance with any other
remedy provided by law. Any such disposition may be conducted by an employee
or agent of Beneficiary or the Trustee. Beneficiary or the Trustee shall be
entitled to purchase any part or all of such property at such disposition.
Any such disposition may be by public or private sale as Beneficiary or the
Trustee may so elect, subject to the provisions of the U.C.C. Beneficiary
shall have all the rights and remedies of a secured party under the U.C.C.
Expenses of retaking, holding, preparing for sale, selling or the like shall
include Beneficiary's and the Trustee's attorneys' and accountants' fees and
charges. Upon the occurrence and during the continuation of any Event of
Default, the Grantor, upon demand of Beneficiary or the Trustee shall
assemble such personal property and make it available to Beneficiary and the
Trustee at any of the Land, or at a place which is deemed to be reasonably
convenient to Beneficiary or the Trustee. It is agreed that ten (10) days'
prior written notice to Grantor of the time and place of any public sale or
other disposition of such property or the time at or after which any private
sale or any other intended disposition is to be made shall constitute
commercially reasonable notice.
3.10. Receipt a Sufficient Discharge to Purchaser
Upon any sale of the Property or any part thereof or any interest
therein, whether pursuant to foreclosure or power of sale or otherwise
hereunder, the receipt of the officer making the sale under judicial
proceedings or of the Trustee or auctioneer in the event of a private sale
shall be sufficient discharge to the purchaser for the purchase money, and
such purchaser shall not be obligated to see to the application thereof.
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3.11. Sale Shall be a Bar Against Grantor
The sale of all or any portion of the Property in connection with the
exercise of remedies under this Deed of Trust after the Mortgage Note becomes
due and payable, whether at maturity, by declaration of acceleration or by
automatic acceleration after an Event of Default or otherwise, shall, upon
the expiration of any applicable redemption period, to the full extent
legally permitted, forever be a perpetual bar against Grantor asserting any
claim to title to such portion of the Property so sold.
3.12. Application of Proceeds of Sale and Other Monies
The proceeds of any sale of the Property or of any interest therein,
whether pursuant to foreclosure or power of sale or otherwise hereunder,
together with any other monies at any time held by Beneficiary or the
Trustee, as applicable, pursuant to this Deed of Trust, the Mortgage Note, or
any Loan Document, shall, unless otherwise elected by Beneficiary in its sole
discretion or unless otherwise required by applicable law, be applied in the
manner and in the order set forth in Section 2.4.3 of the Loan Agreement.
3.13 Remedies Cumulative
Each of the rights, powers, and remedies provided herein are intended and
are hereby deemed to be cumulative, concurrent and in addition to, and not in
limitation of, those rights, powers, and remedies provided elsewhere
hereunder or in any other Loan Document or now or hereafter existing at law
or in equity or by statute or otherwise. If the Obligations are secured by
more than one property, lot, or parcel pursuant to this Deed of Trust, or any
other Deed of Trust or Security Document, and if this Deed of Trust or any
other Security Document is foreclosed upon, or if Beneficiary or the Trustee
shall exercise the power of sale or any other remedy granted herein,
execution may be made upon, or Beneficiary or the Trustee may exercise their
power of sale against, any one or more of the properties, lots or parcels and
not upon the others, or upon all of such properties or parcels, either
together or separately, and at different times or at the same, and sales or
sales by advertisement may likewise be conducted separately or concurrently,
in each case at the Beneficiary's or the Trustee's election. In the event of
a foreclosure of this Deed of Trust or any other Security Document, the
obligations then due shall not be merged into any decree of foreclosure
entered by the court, and Beneficiary or the Trustee may concurrently or
subsequently seek to foreclose one or more other Security Document which also
secure said Obligations listed hereby or thereby.
3.14. No Waiver, Etc.
No failure by Beneficiary or the Trustee to insist upon the strict
performance of any term hereof or to exercise any right, remedy, power or
privilege provided herein or by statute or at law or in equity or otherwise,
nor delay therein, shall constitute a waiver thereof, nor shall any single or
partial exercise of any such right, remedy, power or privilege preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The waiver of any Event of Default hereunder shall not
impair the rights of Beneficiary or the Trustee to enforce any concurrent or
future Event of Default, whether similar or dissimilar to the Event of
Default waived, or otherwise affect or alter this Deed of Trust, which shall
continue in full force and effect.
3.15. Cross-Collateralization; Waiver of Marshalling, Appraisal,
Valuation
Grantor acknowledges that the Obligations are secured by this Deed of
Trust, an Assignment of Leases and Rents and various other documents or
instruments securing or evidencing the Loan. Upon the occurrence of an Event
of Default, Beneficiary shall have the right to institute a proceeding or
proceedings for the total or partial foreclosure of this Deed of Trust and
any or all of the other Security Documents, whether by court action, power of
sale or otherwise, under any applicable provisions of law, for all of the
indebtedness secured by the Security Documents or the portion of such
indebtedness allocated to the Property, and the liens and the security
interests
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created by the Security Documents shall continue in full force and effect as
to the Buildings (and the property related thereto) not foreclosed, without
loss of priority securing that portion of the indebtedness then due and
payable and still outstanding. Grantor acknowledges that the Buildings are
located in two (2) different counties in the State of California and agrees
that, subject to Section 3.5 of this Deed of Trust, upon the occurrence and
during the continuation of an Event of Default hereunder Beneficiary shall be
entitled to enforce payment of the indebtedness secured by the Security
Documents and the performance of any term, covenant or condition of the
Security Documents and exercise any and all rights and remedies under the
Security Documents or as provided by law or at equity, by one or more
proceedings, whether contemporaneous, consecutive or both, to be determined
by Beneficiary in its sole discretion, in any one or more counties in which
the Buildings are located. Neither the acceptance of this Deed of Trust or
the other Security Documents nor the enforcement thereof in any one state,
whether by court action, foreclosure, power of sale or otherwise, shall
prejudice or in any way limit or preclude enforcement by court action,
foreclosure, power of sale or otherwise, of the Mortgage Note, this Deed of
Trust or the other Security Documents through one or more additional
proceedings in that state or in any other state. Any and all sums received
by Beneficiary under the Mortgage Note, this Deed of Trust or the other
Security Documents shall be applied toward the repayment of the Obligations
in such order and priority as Beneficiary shall determine, consistent with
the requirements of the Security Documents, but otherwise without regard to
the Allocated Loan Amount applicable to each Individual Property or the
appraised value of any of the Individual Properties. Grantor hereby waives
all rights, legal and equitable, it may now or hereafter have to require
marshalling of assets or to require, upon foreclosure, sales of assets in a
particular order. Each successor and assign of the Grantor, including a
holder of a Lien subordinate to the Lien created hereby (without implying
that Grantor has, except as expressly provided herein, a right to grant an
interest in, or a subordinate Lien on, any of the Property), by acceptance of
its interest or Lien agrees that it shall be bound by the above waiver, to
the same extent as if such holder gave the waiver itself. Grantor also
hereby waives, to the full extent it may lawfully do so, the benefit of all
laws providing for rights of appraisal, valuation, stay or extension or of
redemption after foreclosure now or hereafter in force.
GRANTOR HEREBY EXPRESSLY (i) WAIVES ANY RIGHTS IT MAY HAVE UNDER
CALIFORNIA LAW TO REPAY THE MORTGAGE NOTE, IN WHOLE OR IN PART, WITHOUT
PENALTY, UPON ACCELERATION OF THE MORTGAGE NOTE, AND (ii) AGREES THAT IF, FOR
ANY REASON, A PREPAYMENT OF ALL OR ANY PORTION OF THE PRINCIPAL AMOUNT OF THE
MORTGAGE NOTE IS MADE INCLUDING WITHOUT LIMITATION UPON OR FOLLOWING ANY
ACCELERATION OF THE MORTGAGE NOTE BY BENEFICIARY ON ACCOUNT OF ANY DEFAULT BY
GRANTOR INCLUDING, WITHOUT LIMITATION, ANY TRANSFER, DISPOSITION, OR FURTHER
ENCUMBRANCE PROHIBITED OR RESTRICTED BY THIS DEED OF TRUST, THEN GRANTOR
HEREBY DECLARES THAT (1) EACH OF THE FACTUAL MATTERS SET FORTH IN THIS
PARAGRAPH IS TRUE AND CORRECT, (2) BENEFICIARY'S AGREEMENT TO MAKE THE LOAN
EVIDENCED BY THE MORTGAGE NOTE CONSTITUTES ADEQUATE CONSIDERATION FOR THIS
WAIVER AND AGREEMENT, AND HAS BEEN GIVEN INDIVIDUAL WEIGHT BY GRANTOR AND
BENEFICIARY, (3) GRANTOR IS A SOPHISTICATED AND KNOWLEDGEABLE REAL ESTATE
INVESTOR WITH COMPETENT AND INDEPENDENT LEGAL COUNSEL AND (4) GRANTOR FULLY
UNDERSTANDS THE EFFECT OF THIS WAIVER AND AGREEMENT.
--------------------
GRANTOR INITIALS
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ARTICLE IV
4. CONCERNING TRUSTEES
4.1. Acts of One Trustee Valid
In the event at any time there is more than one Trustee hereunder, any
Trustee may act without the joining of any other Trustee under any provision
of this Deed of Trust with the same effect as if all Trustees under this Deed
of Trust acted jointly, and the act of any Trustee acting separately shall be
binding and conclusive upon all Trustees and all other parties in interest.
4.2. Removal and Substitution of Trustees
In the event at any time there is more than one Trustee hereunder, any
Trustee or any successor Trustee hereunder may at any time resign as a
Trustee or successor Trustees under this Deed of Trust upon the delivery of
written notice of such resignation to the Beneficiary. Beneficiary shall
have, and is hereby granted by Grantor, with warranty of further assurances,
the irrevocable power to remove the Trustees or any of them, without cause
and without specifying the reason therefor, by delivering a written
instrument or instruments to such effect to the Trustees and, if required by
law, to Grantor, and to appoint a successor Trustee or Trustees by delivering
a written instrument or instruments to such effect to such successor Trustee
or Trustees and by filing a substitution of trustee for recordation in the
office where this Deed of Trust is recorded. Such power of removal and
appointment may be exercised as often and whenever Beneficiary deems it
advisable, and the exercise of such power, no matter how often exercised,
shall not be an exhaustion thereof. Upon the recordation of such deed or
deeds of appointment, the Trustee or Trustees so appointed shall thereupon,
without any further act or deed or conveyance, be fully vested with
identically the same title and estate in and to the Property and with all of
the rights, powers, trusts and duties of their, his or its predecessors in
the trust hereunder, with like effect as if originally named as the Trustee
or one of the Trustees hereunder. After the recordation of such deed or
deeds of appointment, the Trustee or Trustees who have been removed shall, at
the expense of the Grantor, duly assign, transfer, and deliver to such
successor Trustee or Trustees all monies at the time held hereunder by such
Trustee or Trustees who have been removed, and shall execute and deliver such
proper instruments as reasonably may be requested by Beneficiary or the
successor Trustee or Trustees to evidence such assignment, transfer, and
delivery. Whenever in this Deed of Trust reference is made to the Trustees
or a Trustee, it shall be construed to mean the Trustees or the Trustee for
the time being, whether original or successor or successors in trust and, as
the context may require, to any one of such Trustees acting alone.
4.3. Trustee's Compensation, Expenses, Etc.
Trustee shall be entitled to reasonable compensation for all services
rendered or expenses incurred in the administration or execution of the trust
hereby created in an amount not to exceed the maximum amount permitted by law
and Grantor hereby agrees to pay same.
ARTICLE V
5. MISCELLANEOUS
5.1. Notices
All notices, requests and demands to or upon the respective parties
hereto shall be in writing (except as is otherwise specifically provided in
this Deed of Trust) and shall be deemed to have been duly given or made when
received (or when delivery thereof is refused by the intended recipient) if
mailed by first-class registered or
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certified mail, return receipt requested, postage prepaid, sent by facsimile
transmission with confirmation of receipt or delivery, sent by nationally
recognized overnight courier, or delivered by hand, addressed or directed as
follows (or to such other address or facsimile transmission number as may be
hereafter designated in writing by the respective parties hereto):
if to Grantor: Arden Realty Finance Partnership, L.P.
0000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxx 000-X
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Fax: (000) 000-0000
if to Beneficiary: Xxxxxx Brothers Realty Corporation
Three World Financial Center
New York, New York 10285
Attention: Commercial Mortgage Loan Surveillance
Fax: (000) 000-0000
if to Trustee: First American Title Insurance Company
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxxx
Fax: (000) 000-0000
The Grantor, Beneficiary or the Trustee may from time to time, by
notice in writing served upon the others as described above, designate a
different mailing address to which all such notices or demands or
communications are thereafter to be addressed and delivered.
Grantor hereby requests that a copy of any notice of default and
every notice of sale hereunder be mailed to it as provided by law at
Grantor's address set forth in this Section 5.1.
5.2. Invalidity of Any Provision; Entire Agreement
All rights, powers and remedies provided herein may be exercised only to
the extent the exercise thereof does not violate any applicable law, and are
intended to be limited to the extent necessary so that they will not render
this Deed of Trust invalid, unenforceable or not entitled to be recorded,
registered or filed under any applicable law. The invalidity of any one or
more phrases, sentences, clauses, paragraphs or Sections hereof shall not
affect the remaining portions of this Deed of Trust or any part thereof. In
the event that one or more of the phrases, sentences, clauses, paragraphs or
Sections contained herein shall be invalid, or would operate to render this
Deed of Trust invalid, this Deed of Trust shall be construed as if such
invalid phrase or phrases, sentence or sentences, clause or clauses,
paragraph or paragraphs or Section or Sections had not been inserted. This
Deed of Trust including the Exhibits hereto, and the other documents and
instruments referred to herein or delivered pursuant hereto, contains the
entire agreement among the parties with respect to the subject matter hereof
and supersedes all prior or written agreements, commitments or understandings
with respect to such matters.
5.3. Amendment
This Deed of Trust shall not be amended, altered, modified, waived,
discharged or terminated except by an instrument in writing signed by the
party against which enforcement of such amendment, alteration, modification,
waiver, discharge or termination is sought.
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5.4. Parties Bound and Benefited
This Deed of Trust shall be binding upon and be enforceable against
Grantor and Beneficiary and their respective successors and assigns, and
shall be enforceable by and inure to the benefit of Beneficiary and its
successors and assigns, and Grantor and its successors and permitted assigns.
5.5. Effect of Renewal, Amendment, Waiver, Etc.
The Beneficiary, at its option, may at any time renew or extend this Deed
of Trust or the Mortgage Note or any other obligation secured hereby or, with
the consent of the Grantor, alter or modify the same in any way, and may
waive any of the covenants and conditions of the Mortgage Note or this Deed
of Trust imposing obligations on the Grantor, in whole or in part, either at
the request of Grantor or any other person then having an interest in the
Property or in any way liable on the indebtedness secured hereby, and may
take other security for said indebtedness or release any portion of the
Property covered hereby, or release any party primarily or secondarily liable
on the Mortgage Note or hereunder or on any such other security, and may
grant extensions or indulgences in relation to the Mortgage Note and this
Deed of Trust and the payment thereof, or may apply to the principal or
interest of the indebtedness or other sums secured hereby any part or all of
the proceeds obtained by sale or otherwise as herein provided, without resort
or regard to any other security, all without in any way releasing Grantor
from any of the covenants, agreements or conditions of the Mortgage Note,
this Deed of Trust or any other Loan Document or affecting the lien hereof or
thereof on the Property or impairing Beneficiary's or the Trustee's ability
to proceed against the Grantor's interests in the Property in such manner and
at such times as Beneficiary may see fit, upon the occurrence and during the
continuation of an Event of Default.
5.6. Estoppel Certificates
(a) If requested by Beneficiary or the Trustee Grantor will furnish
Beneficiary or the Trustee within fifteen (15) days after written demand
therefor, an estoppel certificate or a written statement which shall set
forth the amount due under the Mortgage Note (whether of principal, interest
or any other amount) and shall indicate whether any offsets or defenses exist
against the payment of the indebtedness secured hereby and, if any offsets or
defenses are alleged to exist, a detailed description of such alleged offsets
or defenses and the amount or amounts thereof.
(b) Grantor shall use its best efforts to deliver to the
Beneficiary, promptly upon request, duly executed estoppel certificates from
any one or more Tenants as required by Beneficiary attesting to such facts
regarding the Leases as Beneficiary may require, including but not limited to
attestations that each Lease covered thereby is in full force and effect with
no defaults thereunder on the part of any party, that none of the Rents have
been paid more than one month in advance, and that the lessee claims no
defense or offset against the full and timely performance of its obligations
under the Lease.
5.7. Headings
Article, Section and subsection headings contained in this Deed of Trust
are inserted for convenience of reference only, shall not be deemed to be a
part of this Deed of Trust for any purpose, and shall not in any way define
or affect the meaning, construction or scope of any of the provisions hereof.
5.8. Pronouns
All pronouns and other words and any variations thereof shall be deemed
to refer to the masculine, feminine, neuter, singular or plural, as the
identity of the person or entity or the context may require.
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5.9. Governing Law; Service of Process
(a) This Deed of Trust, the rights and obligations of the parties
hereto, and any claims or disputes relating thereto, shall be governed by and
construed in accordance with the laws of the State of New York, except that,
for purposes of determining the creation, validity, priority and enforcement
of the Lien created hereby and the exercise of remedies hereunder in
connection with such Lien, the law of the State in which the Land is located
shall govern.
(b) Grantor will maintain a place of business or an agent for
service of process in New York, New York and give prompt notice to
Beneficiary of the address of such place of business and of the name and
address of any new agent appointed by it, as appropriate. Grantor further
agrees that the failure of its agent for service of process to give it notice
of any service of process will not impair or affect the validity of such
service or of any judgment based thereon. If, despite the foregoing, there
is for any reason no agent for service of process of Grantor available to be
served, and if it at that time has no place of business in New York, New
York, then Grantor irrevocably consents to service of process by registered
or certified mail, postage prepaid, to it at its address given in or pursuant
to the first paragraph hereof.
(c) Grantor initially and irrevocably designates CT Corporation
System with offices on the date hereof at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, to receive for and on behalf of Grantor service of process in New
York, New York with respect to this Deed of Trust.
5.10. Waiver of Jury Trial
THE PARTIES HERETO WAIVE ANY RIGHT THEY MAY HAVE TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES HEREUNDER,
UNDER THE MORTGAGE NOTE, OR UNDER ANY LOAN DOCUMENT RELATING TO ANY OF THE
FOREGOING.
5.11. Limitation of Liability
Notwithstanding any contrary provision in any of the Loan Documents, it
is hereby expressly agreed that, except as otherwise provided in this Section
5.11 or in any Section of any Loan Document that is substantially similar to
this Section 5.11, there shall be no recourse to the assets of Grantor (other
than against the Property and any other property given as security for
payment of the Mortgage Note) for (i) the payment of principal, interest,
Defeasance Deposits, Yield Maintenance Payments or other charges hereunder or
under the Mortgage Note or for any other amount that is or may become due and
owing to Beneficiary by Grantor under this Deed of Trust or any of the other
Loan Documents or (ii) the performance or discharge of any covenant or
undertaking hereunder or under the other Loan Documents, and in the event of
any Event of Default hereunder or thereunder, Beneficiary agrees to proceed
solely against the Property and any other property given as security for
payment of the Mortgage Note, and Beneficiary shall not seek or claim
recourse against Grantor or the General Partner (other than against the
Property and any other property given as security for payment of the Mortgage
Note) for any deficiency or for any personal judgment after a foreclosure of
the lien of this Deed of Trust or other Security Documents or for the
performance or discharge of any covenants or undertakings of Grantor
hereunder or under any of the other Loan Documents (except that Grantor may
be made a party to a proceeding to the extent legally necessary for the
conduct of a foreclosure or the exercise of other similar remedies under this
Deed of Trust or other Security Documents). Notwithstanding the foregoing,
nothing contained in this Section 5.11 shall relieve Grantor or the General
Partner of any personal liability for any loss, cost, expense, damage or
liability arising or resulting from (A) any breach of any representation or
warranty made by Grantor in this Deed of Trust that was materially incorrect
when made and that was made with fraudulent intent, (B) any amount paid or
distributed to the General Partner, Arden OP, the Manager or any Affiliate of
any of them in violation of the provisions of the Loan Documents, (C) fraud
or breach of trust including misapplication of Loan proceeds or Awards or
other sums that are part of the Property that may come into the possession or
control of Grantor or the General Partner or any Affiliate of any of them,
(D) liability of such person under the Environmental Indemnity Agreement or
(E)
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following the occurrence of a Lockbox Event, the willful failure of Grantor
to instruct tenants of the Mortgaged Properties to make payments of Rents
into the Lockbox Account or the failure of Grantor or the Manager to deposit
payments of Rents received by Grantor or the Manager into the Lockbox Account
promptly upon receipt thereof. It is hereby expressly agreed that neither
the General Partner nor any director, officer, shareholder, partner or
employee of Grantor or the General Partner, nor the legal or personal
representative, successor or assign of any of the foregoing, nor any other
principal of Grantor or the General Partner, whether disclosed or
undisclosed, shall have any personal liability under this Deed of Trust or
any of the other Loan Documents, except as personal liability may be
specifically imposed upon the General Partner in accordance with clauses (A),
(B), (C), (D) and (E) of this Section 5.11 and in no event shall any limited
partner of Grantor have any liability whatsoever with respect to the Loan or
any monetary obligations with respect thereto, or any of the matters
described in clause (A), (B), (C), (D) or (E) above. It is the intention of
the parties hereto that this Section 5.11 shall govern every other provision
of the Loan Documents and that the absence of explicit reference to this
Section 5.11 in any provision of the Loan Documents or the absence of any
Section similar to this Section 5.11 in any Loan Document shall not be
construed to deny the application of this Section 5.11 to such provision,
notwithstanding the presence of explicit reference to this Section 5.11 in
other provisions of the Loan Documents.
5.12 Assignment to Finance Trustee
5.12.1 Anticipated Assignment
Grantor acknowledges and agrees that, without limiting Beneficiary's
rights otherwise to assign this Deed of Trust and all other Loan Documents,
this Deed of Trust may be assigned together with all other Loan Documents,
and along with mortgage loans made to other borrowers, to the Finance
Trustee, as trustee under the Pooling and Servicing Agreement, and, pursuant
to the Pooling and Servicing Agreement, the Servicer will be appointed to
service this Deed of Trust and the other Loan Documents as provided therein.
Upon such assignment, the Finance Trustee shall for all purposes be the sole
Beneficiary hereunder (and all references herein to Beneficiary shall be
deemed to refer to the Finance Trustee) and the Finance Trustee, or the
Servicer on behalf of the Finance Trustee shall, among other things, (i) have
the sole and exclusive benefit of and the right and power to exercise, or to
direct the exercise of, all the rights and remedies of Beneficiary hereunder
and under the other Security Documents, including the right to inspect the
Property, to receive notices and financial information, to grant or withhold
consents or approvals, to benefit from indemnities, to receive, hold and
apply proceeds or any other amount or property provided by Grantor hereunder,
and, upon the occurrence and during the continuation of an Event of Default,
to take any action required or permitted of Beneficiary, all in the Finance
Trustee's or Servicer's own name, and to exercise all other rights and
remedies of Beneficiary hereunder, (ii) be bound by all the terms hereof
which apply to Beneficiary, and (iii) except to the extent otherwise
specified or required herein or in the Pooling and Servicing Agreement, if
applicable, including any action or inaction required to maintain the status
of a portion of any trust fund of which the Mortgage Note and other Loan
Documents are a part as a qualified real estate mortgage investment conduit
under U.S. tax law or any action or inaction at the direction of the Holders
or as a result of the failure of the Holders to so direct, act in a
commercially reasonable manner in making any determination called for of it
under this Deed of Trust or the other Loan Documents or in granting or
withholding any approval or consent called for under or requested pursuant to
this Deed of Trust.
5.12.2 Recognition of Finance Trustee as Beneficiary
Grantor hereby acknowledges the foregoing and agrees to be bound to the
Finance Trustee, upon such assignment, recognizing the Finance Trustee as
Beneficiary hereunder as if the Finance Trustee were named in this Deed of
Trust as the Beneficiary, recognizing that the Servicer is entitled to act on
behalf of the Finance Trustee and the Holders under and as provided in the
Pooling and Servicing Agreement and is entitled to and shall receive all
notices, financial and other information, agreements and other documents to
be delivered to Beneficiary hereunder or under any of the other Loan
Documents. Upon the assignment contemplated by Section 5.12.1 hereof,
Grantor's obligations to Beneficiary specified in this Deed of Trust shall be
satisfied by tendering full and timely payment or performance thereof to the
Finance Trustee or, if directed by the Finance Trustee, the Servicer. With
respect to delivery by Beneficiary of documents and other written material,
Beneficiary shall have
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only the obligations expressly required of Beneficiary herein or in the other
Loan Documents or in the Pooling and Servicing Agreement. All rights and
remedies of the Finance Trustee as Beneficiary hereunder, including all
indemnities running to Beneficiary, shall also operate for the benefit of the
Servicer and the Holders and shall be exercised by the Finance Trustee and
the Servicer in accordance with and subject to the terms and conditions set
forth in the Pooling and Servicing Agreement. Grantor acknowledges and
agrees that, until Grantor has received notice to the contrary from the
Finance Trustee, all deliveries and notifications to be made by Grantor to
the Finance Trustee pursuant to this Deed of Trust or any other Loan
Document, shall be made to the Servicer only and not to the Finance Trustee.
5.12.3 Delivery of Amounts to Servicer
Following the assignment contemplated by Section 5.12.3 hereof, any
amounts to be delivered to Beneficiary pursuant to Sections 1.8, 1.9 or 1.11
hereof shall be delivered to the Servicer and shall be held by the Servicer
in segregated subaccounts of the Cash Collateral Account (as defined in the
Loan Agreement) for application in accordance with said Sections and in
accordance with the Cash Management Procedures.
ARTICLE VI
6. DEFINITIONS
6.1. Certain Defined Terms
Wherever used in this Deed of Trust the capitalized terms set forth below
shall have the meanings ascribed to them below (or in the Sections of this
Deed of Trust or any other Loan Document referred to below) such definitions
to be equally applicable to the singular and plural forms of the terms
defined below. All capitalized terms not otherwise defined herein shall have
the meanings ascribed to such terms in the Loan Agreement.
"Access Laws" has the meaning set forth in Section 1.19 hereof.
"Affiliate" has the meaning set forth in the Loan Agreement.
"Allocated Loan Amount" has the meaning set forth in the Loan Agreement.
"Alteration" has the meaning set forth in Section 1.11.1 hereof.
"Assignment" has the meaning set forth in the Loan Agreement.
"Award(s)" has the meaning set forth in Section 1.9.1 hereof.
"Bankruptcy Code" has the meaning set forth in Granting Clause (vi)
hereof.
"Beneficiary" has the meaning set forth in the first paragraph of this
Deed of Trust.
"Building" has the meaning set forth in Paragraph B of the Recitals
hereof.
"Buildings" has the meaning set forth in Paragraph B of the Recitals
hereof.
"Cash Management Procedures" means has the meaning set forth in the Loan
Agreement.
"Casualty" has the meaning set forth in Section 1.8.1 hereof.
"Casualty Property" has the meaning set forth in Section 1.8.2 hereof.
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"Certificates" has the meaning set forth in Paragraph E of the Recitals
hereof.
"Claim(s)" has the meaning set forth in Section 1.12 hereof.
"Collateral Assignment of Management Agreement" means that certain
Collateral Assignment of Management Agreement and Subordination Agreement
dated as of the date hereof by and among Grantor, the Manager and Beneficiary.
"Contracts" has the meaning set forth in Granting Clause (vii) hereof.
"Debtor" has the meaning set forth in Section 1.17.6 hereof.
"Deed of Trust" has the meaning set forth in the first paragraph of this
document.
"Default Interest Rate" has the meaning set forth in the Loan Agreement.
"Defeasance Deposit" has the meaning set forth in the Loan Agreement.
"Defeasance Period" has the meaning set forth in the Loan Agreement.
"Due Date" has the meaning set forth in the Loan Agreement.
"ERISA" has the meaning set forth in the Loan Agreement.
"Election" has the meaning set forth in Section 1.18.6.2 hereof.
"Environmental Laws" has the meaning set forth in the Loan Agreement.
"Event of Default" has the meaning set forth in Article II hereof.
"Finance Trustee" has the meaning set forth in Paragraph E of the
Recitals hereof, being the same meaning ascribed to "Trustee" in the Loan
Agreement.
"Fixtures" has the meaning set forth in Granting Clause (iii) hereof.
"General Partner" has the meaning set forth in the Loan Agreement.
"Grantor" has the meaning set forth in the first paragraph of this Deed
of Trust.
"Ground Lease" has the meaning set forth in Granting Clause (i) hereof.
"Guaranty" has the meaning set forth in Section 1.20 hereof.
"Hazardous Material(s)" has the meaning set forth in the Loan Agreement.
"Holders" has the meaning set forth in the Loan Agreement.
"Impositions" has the meaning set forth in Section 1.5.1 hereof.
"Improvements" has the meaning set forth in Paragraph C of the Recitals
hereof.
"Indebtedness" has the meaning set forth in the Loan Agreement.
"Indemnitees" has the meaning set forth in Section 1.12 hereof.
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"Individual Property" means any one of the parcels of Land set forth on
Exhibit A-1, Exhibit X-0, Xxxxxxx X-0, Exhibit X-0, Xxxxxxx X-0, Xxxxxxx X-0,
Exhibit A-7, Exhibit X-0, Xxxxxxx X-0, Exhibit X-00, Xxxxxxx X-00, Xxxxxxx
X-00, Xxxxxxx A-13, Exhibit A-14, Exhibit A-15, Exhibit A-16 and Exhibit
A-17, the Building and other Improvements on said parcel and all other
Property relating to said parcel, Building and other Improvements.
"Insurance Proceeds" has the meaning set forth in Section 1.8.2 hereof.
"Land" has the meaning set forth in Paragraph B of the Recitals hereof.
"Laws" has the meaning set forth in the Loan Agreement.
"Leases" has the meaning set forth in Granting Clause (vi) hereof.
"Lien(s)" has the meaning set forth in Section 1.2.5 hereof.
"Loan" has the meaning set forth in Paragraph A of the Recitals hereof.
"Loan Agreement" has the meaning set forth in Paragraph A of the
Recitals hereof.
"Loan Documents" has the meaning set forth in the Loan Agreement.
"Material Lease" has the meaning set forth in Section 1.20.11.2 hereof.
"Mortgage Note" has the meaning set forth in Paragraph A of the Recitals
hereof.
"Mortgaged Properties" has the meaning set forth in the Loan Agreement.
"Net Sales Proceeds" has the meaning set forth in the Loan Agreement.
"Noteholder" has the meaning set forth in Paragraph A of the Recitals
hereof.
"Notice of Sale" has the meaning set forth in Section 3.5.4 hereof.
"Obligations" has the meaning set forth in the paragraph beginning with
the words "NOW, THEREFORE . . . " on page 1 hereof.
"Partners" has the meaning set forth in the Loan Agreement.
"Permitted Debt" has the meaning set forth in the Loan Agreement.
"Permitted Liens" has the meaning set forth in the Loan Agreement.
"Permitted Liens and Encumbrances" has the meaning set forth in Section
1.2.5 hereof.
"Person" has the meaning ascribed to such term in the Loan Agreement.
"Pooling and Servicing Agreement" has the meaning set forth in the Loan
Agreement.
"Property" has the meaning set forth in the first full paragraph
following the heading "GRANTING CLAUSES," on page 2 hereof.
"Qualified Insurance Company" has the meaning set forth in Section 1.7.2
hereof and "Qualified Insurance Companies" means any two or more insurers
constituting a Qualified Insurance Company.
- 46 -
"Qualified Supervising Professional" means a supervising engineer or
architect that is licensed to do business in the State in which the Property
is located and has at least five years' experience in the supervision of
commercial construction projects similar to the work to be supervised.
"Rating Agencies" has the meaning set forth in the Loan Agreement.
"Real Property Rights" has the meaning set forth in Granting Clause (ii)
hereof.
"Release Price" has the meaning set forth in the Loan Agreement.
"Renewal Lease" has the meaning set forth in Section 1.20.11.3 hereof.
"Rents" has the meaning set forth in Granting Clause (vi) hereof.
"Restoration" has the meanings set forth in Section 1.8.2 and Section
1.9.3 hereof.
"S&P" means Standard & Poor's Ratings Services, a division of
XxXxxx-Xxxx Companies, Inc.
"Secured Party" has the meaning set forth in Section 1.17.6 hereof.
"Securitization" has the meaning set forth in the Loan Agreement.
"Security Deposits" has the meaning set forth in Section 1.20.11.10
hereof.
"Security Documents" has the meaning set forth in the Loan Agreement.
"Servicer" has the meaning ascribed to it in Paragraph E of the Recitals
hereof.
"Taking" has the meaning set forth in Section 1.9.1 hereof.
"Tenant" has the meaning set forth in Section 1.20.1 hereof.
"Title Company" has the meaning set forth in Section 1.3 hereof.
"Title Insurance Policy" has the meaning set forth in Section 1.3 hereof.
"Trustee" means First American Title Insurance Company, and its
successors and assigns as trustee hereunder.
"U.C.C." has the meaning set forth in Granting Clause (viii) hereof.
"U.C.C. Collateral" has the meaning set forth in Section 1.17.1 hereof.
"Yield Maintenance Payment" has the meaning set forth in the Loan
Agreement.
[SIGNATURE PAGE TO FOLLOW]
- 47 -
IN WITNESS WHEREOF, the undersigned has caused this Deed of Trust,
Assignment of Rents and Leases, Security Agreement and Fixture Filing to be
duly executed and delivered as of the date first set forth hereinabove.
GRANTOR:
ARDEN REALTY FINANCE PARTNERSHIP, L.P.,
a California limited partnership
By: ARDEN REALTY FINANCE, INC.,
general partner
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Print Name: Xxxxx X. Xxxxx
-----------------------------
Its: Chief Financial Officer
------------------------------------
This instrument prepared by:
Xxx X. Xxxxxx, Esq.
Xxxxx & Xxxxxxx L.L.P.
0000 Xxxxxxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
STATE OF CALIFORNIA )
ss
COUNTY OF LOS ANGELES )
On June 11, 1997, before me Xxxxxxxxx X. Xxxxxx a notary public,
personally appeared Xxxxx X. Xxxxx, personally known to be (or proved to me
on the basis of satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxxxxxx X. Xxxxxx
[SEAL] ----------------------------------
Notary Public
(Seal)
EXHIBIT A-1
LEGAL DESCRIPTION
PARCEL 1:
PARCELS 0 XXX 0 XX XXXXXX XXX XX. 00000, XX THE CITY OF LONG BEACH, AS PER MAP
FILED IN BOOK 181 PAGES 58 AND 59 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPT ALL OIL, HYDROCARBON SUBSTANCES AND MINERALS OF EVERY KIND AND CHARACTER
LYING MORE THAN 500 FEET BELOW THE SURFACE OF SAID LAND, TOGETHER WITH THE RIGHT
TO DRILL INTO, THROUGH AND TO USE AND OCCUPY ALL PARTS OF SAID LAND LYING MORE
THAN 500 FEET BELOW THE SURFACE THEREOF FOR ANY AND ALL PURPOSES INCIDENTAL TO
THE EXPLORATION FOR AND PRODUCTION OF OIL, GAS, HYDROCARBON SUBSTANCES OR
MINERALS FROM SAID LANDS, BUT WITHOUT, HOWEVER, THE RIGHT TO USE EITHER THE
SURFACE OF SAID LAND OR ANY PORTION OF SAID LAND WITHIN 500 FEET OF THE SURFACE
FOR ANY PURPOSE OR PURPOSES WHATSOEVER, AS PROVIDED IN DEED RECORDED OCTOBER 7,
1985 AS INSTRUMENT NO. 00-0000000, AND IN DEED RECORDED OCTOBER 23, 1985 AS
INSTRUMENT NO. 00-0000000.
PARCEL 2:
PARCEL 0 XX XXXXXX XXX XX. 00000, XX THE CITY OF LONG BEACH, AS PER MAP FILED IN
BOOK 181 PAGES 58 AND 59 OF PARCELS MAPS, IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY.
EXCEPT ALL CRUDE OIL, PETROLEUM, GAS, ASPHALTUM, AND ALL KINDRED SUBSTANCES AND
OTHER MINERALS UNDER AND IN SAID LAND A DEPTH BELOW 200 FEET FROM THE SURFACE OF
SAID LAND, PROVIDED GRANTORS SHALL HAVE NO RIGHT OF ENTRY UPON
000 Xxxx Xxxxxxxx, Xxxx Xxxxx PAGE 1 OF 30
THE SURFACE OF SAID LAND OR IN, OR TO SAID LAND TO A DEPTH OF 200 FEET FROM THE
SURFACE THEREOF, AS RESERVED BY XXXXXX X. XXXXXXX AND XXXX XXXXXXX, HUSBAND AND
WIFE, AND XXXXXXX X. XXXXXX AND XXXXXX X. XXXXXX, HUSBAND AND WIFE, IN DEED
RECORDED MAY 23, 1974 AS DOCUMENT NO. 216 IN BOOK D6281 PAGE 820, OFFICIAL
RECORDS.
ALSO EXCEPT ALL MINERALS, GAS, OIL, PETROLEUM, NAPHTHA AND OTHER HYDROCARBON
SUBSTANCES IN AND UNDER SAID LAND, WITHOUT THE RIGHT OF SURFACE ENTRY, AS
EXCEPTED AND RESERVED BY XXXXXXX XXXXXX, WIDOW, IN DEED RECORDED AUGUST 22, 1949
AS INSTRUMENT NO. 308 IN BOOK D4474 PAGE 618, OFFICIAL RECORDS.
ALSO EXCEPT ALL MINERALS, GAS, OIL, PETROLEUM, NAPHTHA AND OTHER HYDROCARBON
SUBSTANCES IN AND UNDER SAID LAND, WITHOUT THE RIGHT OF SURFACE ENTRY, AS
EXCEPTED AND RESERVED BY XXXXX X. XXXX, IN DEED RECORDED NOVEMBER 10, 1969 AS
INSTRUMENT NO. 24 IN BOOK D4550 PAGE 244, OFFICIAL RECORDS.
ALSO EXCEPT ALL OIL, GAS AND OTHER HYDROCARBON SUBSTANCES IN AND UNDER OR THAT
MAY BE PRODUCED FROM A DEPTH BELOW 200 FEET OF THE SURFACE OF SAID LAND, BUT
WITHOUT RIGHT OF ENTRY UPON THE SURFACE OF SAID LAND, FOR THE PURPOSE OF MINING,
DRILLING, EXPLORING, OR EXTRACTING SUCH OIL, GAS, MINERALS AND OTHER HYDROCARBON
SUBSTANCES, AS RESERVED BY XXXXXXX X. XXXXXXXX, A MARRIED WOMAN, WHO ACQUIRED
TITLE AS XXXXXXX X. XXXXXXX, IN DEED RECORDED NOVEMBER 12, 1969 AS INSTRUMENT
NO. 249 IN BOOK D4551 PAGE 553, OFFICIAL RECORDS.
ALSO EXCEPT ALL OIL, GAS AND OTHER HYDROCARBON SUBSTANCES IN AND THAT MAY BE
PRODUCED FROM A DEPTH BELOW 200 FEET OF THE SURFACE OF SAID LAND, BUT WITHOUT
RIGHT OF ENTRY UPON THE SURFACE OF SAID LAND, FOR THE PURPOSE OF MINING,
DRILLING, EXPLORING, OR EXTRACTING SUCH OIL, GAS, MINERALS AND OTHER
HYDROCARBON SUBSTANCES, AS EXCEPTED BY BUFFUMS', A CORPORATION, IN DEED
RECORDED NOVEMBER 12, 1969 AS INSTRUMENT NO. 251 IN BOOK D4551 PAGE 555,
OFFICIAL RECORDS.
ALSO EXCEPT ALL OIL, GAS, AND OTHER HYDROCARBON SUBSTANCES IN AND UNDER OR THAT
MAY BE PRODUCED FROM A DEPTH BELOW 200 FEET OF THE SURFACE, BUT WITHOUT RIGHT OF
SURFACE ENTRY, FOR THE PURPOSE OF MINING, DRILLING, EXPLORING, OR EXTRACTING
SUCH OIL, GAS, MINERALS AND OTHER HYDROCARBON SUBSTANCES, AS RESERVED BY JOY
XXXXXXX XXXXX, IN DEED RECORDED DECEMBER 18, 1969 AS INSTRUMENT NO. 62 IN BOOK
D4585 PAGE 279, OFFICIAL RECORDS.
ALSO EXCEPT ALL OIL, GAS AND OTHER HYDROCARBON SUBSTANCES IN AND UNDER OR THAT
MAY BE PRODUCED FROM A DEPTH BELOW 200 FEET OF THE SURFACE, BUT WITHOUT RIGHT OF
SURFACE ENTRY, FOR THE PURPOSE OF MINING, DRILLING, EXPLORING, OR EXTRACTING
SUCH OIL, GAS, MINERALS AND OTHER HYDROCARBON SUBSTANCES, AS RESERVED BY
XXXXXXXX XXXXXX, ALSO KNOWN AS XXXXXXXX BLEINE XXXXX, IN DEED RECORDED DECEMBER
18, 1969 AS INSTRUMENT NO. 53 IN BOOK D4585 PAGE 280, OFFICIAL RECORDS.
000 Xxxx Xxxxxxxx, Xxxx Xxxxx
PAGE 2 OF 30
ALSO EXCEPT ALL OIL, GAS AND OTHER HYDROCARBON SUBSTANCES IN AND UNDER OR THAT
MAY BE PRODUCED FROM A DEPTH BELOW 200 FEET OF THE SURFACE OF SAID LAND, BUT
WITHOUT RIGHT OF ENTRY UPON THE SURFACE OF SAID LAND, FOR THE PURPOSE OF MINING,
DRILLING, EXPLORING, OR EXTRACTING SUCH OIL, GAS, MINERALS AND OTHER HYDROCARBON
SUBSTANCES, AS RESERVED BY XXXXXX X. XXXXX AND XXXXX X. XXXXX, HUSBAND AND WIFE,
IN DEED RECORDED NOVEMBER 12, 1969 AS INSTRUMENT NO. 250 IN BOOK D4551 PAGE 554,
OFFICIAL RECORDS.
000 Xxxx Xxxxxxxx, Xxxx Xxxxx
PAGE 3 OF 30
EXHIBIT A-2
LEGAL DESCRIPTION
XXXX 0 XX 00 XXXXXXXXX XX XXXXX 00 XX XXXXX 0000, IN THE CITY OF LOS ANGELES, AS
PER MAP RECORDED IN BOOK 79 PAGES 98 AND 99 OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
10350 Santa Xxxxxx, Los Angeles
PAGE 4 OF 30
EXHIBIT A-3
LEGAL DESCRIPTION
XXXX 0 XX 0 XXXXXXXXX XX XXXXX 00000, IN THE CITY OF BURBANK, AS PER MAP
RECORDED IN BOOK 1029 PAGES 49 TO 51 INCLUSIVE OF MAPS, BEING A SUBDIVISION OF A
PORTION OF LOT 1 AND ALL OF XXXX 0, 0, 0, 0, 00, 00 XXX 00, XXXXX 48, TOWN OF
BURBANK, AS SHOWN ON MAP RECORDED IN BOOK 17 PAGES 19 TO 22 INCLUSIVE OF
MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT FROM THAT PORTION OF SAID LAND, INCLUDED WITHIN THE LINES OF LOT 5, BLOCK
48, AS SHOWN ON THE MAP OF THE TOWN OF BURBANK, RECORDED IN BOOK 17 PAGE 19 OF
MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, ALL
MINERALS, OILS, GAS, WATER, CARBONS AND HYDROCARBONS IN AND UNDER SAID LAND
LYING BELOW A DEPTH OF 500 FEET FROM THE SURFACE OF SAID LAND, AS RESERVED BY
XXX XXXXXXXX, A WIDOWER, IN DEED RECORDED SEPTEMBER 22, 1964 AS INSTRUMENT NO.
792, IN BOOK D2635 PAGE 492, OFFICIAL RECORDS.
303 Glenoaks, Burbank
PAGE 5 OF 30
EXHIBIT A-4
LEGAL DESCRIPTION
PARCEL 1:
XXXX 00 XXX 00 XX XXXXX 00000, XX THE CITY OF XXXXXX CITY, AS PER MAP RECORDED
IN BOOK 1020 PAGES 31 TO 35 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPT ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS, NATURAL
GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN THAT MAY BE
WITHIN OR UNDER SAID LAND, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING,
MINING, EXPLORING AND OPERATING THEREFOR AND REMOVING THE SAME FROM SAID LAND
OR ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL
AND MINE FROM LANDS OTHER THAN SAID LAND, OIL OR GAS XXXXX, TUNNELS AND
SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF SAID LAND, AND TO BOTTOM
SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED XXXXX, TUNNELS AND SHAFTS UNDER AND
BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL,
EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH XXXXX OR MINES, WITHOUT,
HOWEVER, THE RIGHT TO DRILL, MINE, EXPLORE AND OPERATE THROUGH THE SURFACE OR
THE UPPER 100 FEET OF THE SUBSURFACE OF SAID LAND OR OTHERWISE IN SUCH MANNER
AS TO ENDANGER THE SAFETY OF ANY HIGHWAY THAT MAY BE CONSTRUCTED ON SAID
LANDS, AS EXCEPTED BY HOME SAVINGS AND LOAN ASSOCIATION, IN DEED RECORDED JULY
15, 1971 AS INSTRUMENT NO. 3551, IN BOOK D5125 PAGE 491, OFFICIAL RECORDS.
000 Xxxxxxxxx Xxxxxx, Xxxxxx Xxxx
PAGE 6 OF 30
ALSO EXCEPT ALL OIL, GAS, HYDROCARBON SUBSTANCES AND MINERALS OF EVERY KIND
AND CHARACTER LYING MORE THAN 500 FEET BELOW THE SURFACE OF SAID LAND,
TOGETHER WITH THE RIGHT TO DRILL INTO, THROUGH, AND TO USE AND OCCUPY ALL
PARTS OF SAID LAND LYING MORE THAN 500 FEET BELOW THE SURFACE THEREOF FOR ANY
AND ALL PURPOSES INCIDENTAL TO THE EXPLORATION FOR THE PRODUCTION OF OIL, GAS,
HYDROCARBON SUBSTANCES, OR MINERALS FROM SAID LAND OR OTHER LAND, BUT
WITHOUT, HOWEVER, ANY RIGHT TO USE EITHER THE SURFACE OF SAID LAND OR ANY
PORTION OF SAID LAND WITHIN 500 FEET OF THE SURFACE FOR ANY PURPOSE OR
PURPOSES WHATSOEVER, AS RESERVED BY THE XXXXXX CITY REDEVELOPMENT AGENCY, A
PUBLIC BODY CORPORATE AND POLITIC, IN DEED RECORDED DECEMBER 23, 1981 AS
INSTRUMENT NO. 00-0000000.
ALSO EXCEPT ALL OIL, GAS, HYDROCARBON SUBSTANCES AND MINERALS OF EVERY KIND AND
CHARACTER, LYING MORE THAN 500 FEET BELOW THE SURFACE OF SAID LAND, TOGETHER
WITH THE RIGHT TO DRILL INTO, THROUGH AND TO USE AND OCCUPY ALL PARTS OF SAID
LAND LYING MORE THAN 500 FEET BELOW THE SURFACE THEREOF FOR ANY AND ALL PURPOSES
INCIDENTAL TO EXPLORATION FOR THE PRODUCTION OF OIL, GAS, HYDROCARBON SUBSTANCES
OR MINERALS FROM SAID LAND OR OTHER LANDS, BUT WITHOUT, HOWEVER, ANY RIGHT TO
USE THE SURFACE OF SAID LAND OR ANY PORTION OF SAID LAND WITHIN 500 FEET OF THE
SURFACE FOR ANY PURPOSES WHATSOEVER, AS EXCEPTED BY THE CITY OF XXXXXX CITY, A
MUNICIPAL CORPORATION, IN DEED RECORDED MAY 16, 1983 AS INSTRUMENT NO.
83-542812, AND BY XXXXXX CITY REDEVELOPMENT AGENCY, A PUBLIC BODY CORPORATE AND
POLITIC IN DEED RECORDED MAY 16, 1983 AS INSTRUMENT NO. 83-542813.
PARCEL 2:
A NON-EXCLUSIVE EASEMENT IN, OVER, UNDER AND ACROSS ALL XXXX 0 XXX 0 XX XXXXX
00000, XX THE CITY OF XXXXXX CITY, AS PER MAP RECORDED IN BOOK 1020 PAGES 31 TO
35 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, FOR
PEDESTRIAN AND VEHICULAR INGRESS AND EGRESS BETWEEN XXXXXX AVENUE AND XXX 00 XX
XXXX XXXXX 00000; AS SUCH EASEMENT IS DESCRIBED IN THAT CERTAIN DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS AND CREATION OF EASEMENTS RECORDED ON
AUGUST 15, 1986 AS INSTRUMENT NO. 00-0000000, AS AMENDED BY THAT CERTAIN
FIRST AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND
CREATION OF EASEMENTS RECORDED SEPTEMBER 19, 1988 AS INSTRUMENT NO. 00-0000000,
AND AS TO SAID LOT 9, AS FURTHER AMENDED BY THAT CERTAIN AGREEMENT OF
CLARIFICATION OF LOCATION OF DRIVEWAY EASEMENT RECORDED FEBRUARY 14, 1996 AS
INSTRUMENT NO. 96-259845.
PARCEL 3:
A NON-EXCLUSIVE EASEMENT, IN, OVER AND ACROSS THAT PORTION OF A DRIVEWAY LOCATED
WITHIN XXX 00 XX XXXX XXXXX 00000 FOR THE PURPOSE OF VEHICULAR AND PEDESTRIAN
INGRESS TO AND EGRESS FROM XXXX 00 XXX 00 XX XXXX XXXXX 00000, TOGETHER WITH AN
EASEMENT IN, OVER, UNDER ACROSS AND THROUGH SAID PORTION OF SAID DRIVEWAY FOR
THE PURPOSE OF THE INSTALLATION, MAINTENANCE, USE AND REPAIR OF CERTAIN
UTILITIES SERVICING SAID DRIVEWAY AND THE IMPROVEMENTS THEREON, AS EACH SUCH
EASEMENT IS DESCRIBED IN INSTRUMENT NO. 00-0000000, RECORDED DECEMBER 29, 1983.
000 Xxxxxxxxx Xxxxxx, Xxxxxx Xxxx
PAGE 7 OF 30
EXHIBIT A-5
LEGAL DESCRIPTION
LOTS 24 TO 29 INCLUSIVE OF TRACT 752, IN THE CITY OF GLENDALE, AS PER MAP
RECORDED IN BOOK 16 PAGE 84 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY.
000 Xxxx Xxxxxxxx, Xxxxxxxx
PAGE 8 OF 30
EXHIBIT A-6
LEGAL DESCRIPTION
PARCEL A:
PARCEL 1, AS SHOWN ON EXHIBIT "B" OF THAT CERTAIN "APPLICATION FOR LOT LINE
ADJUSTMENT NO. 86-1" RECORDED JUNE 2, 1986 AS INSTRUMENT NO. 86-227750 OF
OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
EXCEPT FROM THAT PORTION OF SAID LAND INCLUDED WITHIN THE EASTERLY 450.00 FEET,
MEASURED ALONG THE NORTHERLY LINE OF SECTION 16, TOWNSHIP 5 SOUTH, RANGE 11
WEST, IN THE RANCHO LA BOLSA CHICA, AND AT A RIGHT ANGLE THERETO, AN UNDIVIDED
ONE-HALF INTEREST IN ALL OIL, GAS AND OTHER MINERALS, WITH NO RIGHT OF SURFACE
ENTRY, AS RESERVED BY BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, AS
TRUSTEE, AND OTHERS, IN DEED RECORDED IN BOOK 10179, PAGE 164 OF OFFICIAL
RECORDS.
ALSO EXCEPTING THE REMAINING INTEREST IN ALL OIL, GAS AND OTHER MINERALS, WITH
NO RIGHT OF SURFACE ENTRY, IN THAT PORTION OF SAID LAND INCLUDED WITHIN THE
EASTERLY 450.00 FEET, MEASURED ALONG THE NORTHERLY LINE OF SAID SECTION 16 AND
AT A RIGHT ANGLE THERETO, AS RESERVED IN THE DEED FROM BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, AS SOLE SURVIVOR TRUSTEE OF THE XXXXXX X. XXXX
TRUST; BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, AS SUCCESSOR
TRUSTEE UNDER THE WILL OF XXXXXXX X. XXXX, DECEASED; XXXXXXX X. XXXX XXXXX,
INDIVIDUALLY; AND HUNTINGTON BEACH INDUSTRIAL PARK, A LIMITED PARTNERSHIP,
RECORDED IN BOOK 11661, PAGE 1800 OF OFFICIAL RECORDS.
ALSO EXCEPTING ALL REMAINING INTEREST IN ALL OIL, GAS AND OTHER MINERALS,
WITH NO RIGHT OF SURFACE ENTRY, AS RESERVED IN THE DEED FROM BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, AS SOLE SURVIVOR TRUSTEE OF THE
XXXXXX X. XXXX TRUST; BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
AS SUCCESSOR TRUSTEE UNDER THE WILL OF XXXXXXX X. XXXX, DECEASED; XXXXXXX X.
XXXX XXXXX, INDIVIDUALLY; AND HUNTINGTON BEACH INDUSTRIAL PARK, A LIMITED
PARTNERSHIP, RECORDED IN BOOK 11661, PAGE 1800 OF OFFICIAL RECORDS.
PARCEL B:
A NON-EXCLUSIVE EASEMENT FOR BOTH VEHICULAR AND PEDESTRIAN INGRESS AND EGRESS
AND OTHER PURPOSES, OVER THE LAND, AS DESCRIBED IN AND CREATED BY THAT CERTAIN
NON-EXCLUSIVE EASEMENT DATED JUNE 4, 1984 AND RECORDED JUNE 13, 1984 AS
INSTRUMENT NO. 84-244918 OF OFFICIAL RECORDS.
5832
Bolsa, Huntington Beach PAGE 9 OF 30
EXHIBIT A-7
LEGAL DESCRIPTION
XXXX 0, 0, 00 XXX 00 XX XXXXX 0000, IN THE CITY OF LOS ANGELES, AS PER MAP
RECORDED IN BOOK 59 PAGES 53 TO 57 INCLUSIVE OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
EXCEPT ALL GAS, OIL AND OTHER MINERAL RIGHTS LYING BELOW A DEPTH OF 500 FEET
FROM THE SURFACE OF SAID LAND, WITHOUT ANY SURFACE OR ENTRY RIGHTS WHATSOEVER,
AS RESERVED BY XXXXXXX XXXXXXX XXXXXX AND XXXX XXXX XXXXXX, HUSBAND AND WIFE,
AND XXXXXX X. XXXXXXX AND XXXXX XXXXXX XXXXXXX, TRUSTEES UNDER AGREEMENT DATED
NOVEMBER 20, 1975 BY XXXXXX XXXXXXX AND XXXXX XXXXXX XXXXXXX, IN THE DEED
RECORDED JUNE 1, 1977 AS INSTRUMENT NO. 77-573626.
6100 Wilshire, Los Angeles PAGE 10 OF 30
EXHIBIT A-8
LEGAL DESCRIPTION
PARCEL 1:
XXX 0 XXX XXX XXXXXXXXX 00 XXXX XX XXX 0 XX XXXXXX XXXXXX SUBDIVISION, IN THE
CITY OF PASADENA, AS PER MAP RECORDED IN BOOK 10 PAGE 86 OF MISCELLANEOUS
RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM THE WESTERLY 6 FEET FOR LAKE AVENUE.
ALSO EXCEPT THEREFROM THAT PORTION OF LOT 2 OF XXXXXX AND XXXXXX SUBDIVISION
INCLUDED IN GREEN STREET, AS SAME PRESENTLY EXISTS.
PARCEL 2:
THE SOUTH 34 FEET OF LOT 1 OF XXXXXX AND XXXXXX SUBDIVISION, IN THE CITY OF
PASADENA, AS PER MAP RECORDED IN BOOK 10 PAGE 100 OF MISCELLANEOUS RECORDS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM THE WEST 6 FEET THEREOF, CONVEYED TO IN XXX XXXX XX XXXXXXXX
XXX XXXXXX PURPOSES, BY DEED RECORDED IN BOOK 1164 PAGE 317 OF DEEDS.
PARCEL 3:
THE NORTH 38 FEET OF XXX 0 XXX XXX XXXXX 00 XXXX XX XXX 0 OF THE XXXXXX AND
XXXXXX SUBDIVISION, IN THE CITY OF PASADENA, AS PER MAP RECORDED IN BOOK 10 PAGE
100 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
EXCEPT THEREFROM THE WEST 6 FEET THEREOF, CONVEYED TO XXX XXXX XX XXXXXXXX, XXX
XXXXXX PURPOSES, BY DEED RECORDED IN BOOK 1164 PAGE 317 OF DEEDS.
00 Xxxxx Xxxx, Xxxxxxxx PAGE 11 OF 30
EXHIBIT A-9
LEGAL DESCRIPTION
LOTS 2010, 2011, 2012, 2013 AND 2014 OF TRACT 6380, IN THE CITY OF XXXXXXX
HILLS, AS PER MAP RECORDED IN BOOK 69 PAGES 11 THROUGH 20 INCLUSIVE OF MAPS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM ALL MINERALS, OIL, GAS, PETROLEUM, OTHER HYDROCARBON SUBSTANCES
AND ALL UNDERGROUND WATER IN OR UNDER OR WHICH MAY BE PRODUCED FROM THE LAND
DESCRIBED BELOW WHICH UNDERLIES A PLANE PARALLEL TO AND 500 FEET BELOW THE
PRESENT SURFACE OF SAID LAND FOR THE PURPOSE OF PROSPECTING FOR, OR THE
EXPLORATION, DEVELOPMENT, PRODUCTION, EXTRACTION AND TAKING OF SAID MINERALS,
OIL, GAS, PETROLEUM, OTHER HYDROCARBON SUBSTANCES AND WATER FROM SAID LAND BY
MEANS OF MINES, WELLS, DERRICKS, AND/OR OTHER EQUIPMENT FROM SURFACE LOCATIONS
ON ADJOINING OR NEIGHBORING LAND OR LYING OUTSIDE OF THE ABOVE DESCRIBED LAND,
IT BEING UNDERSTOOD THAT THE OWNER OF SUCH MINERALS, OIL, GAS, PETROLEUM, OTHER
HYDROCARBON SUBSTANCES AND WATER, AS SET FORTH ABOVE, SHALL HAVE NO RIGHT TO
ENTER UPON THE SURFACE OF THE ABOVE DESCRIBED LAND NOR TO USE ANY OF THE SAID
LAND OR ANY OF THE SAID LAND OR ANY PORTION THEREOF ABOVE SAID PLANE PARALLEL
TO AND 500 FEET BELOW THE PRESENT SURFACE OF THE SAID LAND FOR ANY PURPOSES
WHATSOEVER, AS GRANTED TO XXXXXX XXXXX, AS CUSTODIAN FOR XXXXXX XXXXX, XXXX
XXXXX AND XXXXXX XXXXX UNDER THE UNIFORM TRANSFERS TO MINORS ACT, AS TO AN
UNDIVIDED 50% INTEREST, AND TO XXXX XXXXX, AS CUSTODIAN FOR XXXXXXX XXXXX AND
XXXXXX XXXXX UNDER THE UNIFORM TRANSFERS TO MINORS ACT, AS TO AN UNDIVIDED 50%
INTEREST; TOGETHER AS TENANTS IN COMMON, BY DEED RECORDED JANUARY 2, 1990 AS
INSTRUMENT NO. 90-4904.
Xxxxxxx Atrium, Xxxxxxx Hills
PAGE 12 OF 30
EXHIBIT A-10
LEGAL DESCRIPTION
XXX 0 XX XXXXX 00000, IN THE CITY OF XXXXXX CITY, AS PER MAP RECORDED IN BOOK
880 PAGES 49 TO 55 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY.
EXCEPT ALL METALS AND MINERALS AND ALL OIL, NATURAL GAS, ASPHALTUM AND OTHER
HYDROCARBONS, WITHOUT RIGHT OF SURFACE ENTRY, TOGETHER WITH THE RIGHT TO
EXPLORE AND TO DRILL FOR AND TO PRODUCE, EXTRACT AND TAKE METALS AND
MINERALS, OIL, NATURAL GAS, ASPHALTUM AND OTHER HYDROCARBONS, TOGETHER WITH
ALL RIGHTS NECESSARY AND CONVENIENT THERETO FOR ANY OR ALL OF THE ABOVE
PURPOSES, INCLUDING WITHOUT LIMITING THE GENERALITY HEREOF, SUBSURFACE RIGHTS
OF WAY FOR DRILLING, REPAIRING, REDRILLING DEEPENING, MAINTAINING,
OPERATING, ABANDONING, REWORKING AND REMOVING XXXXX INTO AND THROUGH SAID
LAND, BELOW A PLANE OF 500 FEET BELOW THE SURFACE THEREOF AND EXCEPTING AND
RESERVING THE RIGHT TO MAINTAIN PIPES AND TO TRANSPORT ANY OF SUCH SUBSTANCES
AND TO CROSS AND TRAVERSE FROM OTHER LANDS BELOW A DEPTH OF 500 FEET, AS
RESERVED BY HOME SAVINGS AND LOAN ASSOCIATION, A CALIFORNIA CORPORATION, IN
DEED RECORDED DECEMBER 30, 1969 AS INSTRUMENT NO. 261, IN BOOK D4595 PAGE 72,
OFFICIAL RECORDS.
Bristol Plaza, Xxxxxx City
PAGE 13 OF 30
EXHIBIT A-11
LEGAL DESCRIPTION
LOTS 2, 4, 6, 8, 10, 12, 14, 16, 18 AND 20 IN BLOCK 48, OF THE TOWN OF
BURBANK, IN THE CITY OF BURBANK, AS PER MAP RECORDED IN BOOK 17 PAGES 19 TO
22 INCLUSIVE OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY.
EXCEPT FROM SAID LOT 2 THAT PORTION THEREOF LYING NORTHERLY AND NORTHEASTERLY
OF A LINE DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE SOUTHEASTERLY LINE OF SAID LOT 2 WITH
THE SOUTHWESTERLY LINE OF THE NORTHEASTERLY 20 FEET OF SAID LOT; THENCE
NORTHWESTERLY ALONG SAID SOUTHWESTERLY LINE 140 FEET, MORE OR LESS, TO THE
BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY HAVING A RADIUS OF 15 FEET
WHICH IS ALSO TANGENT TO THE NORTHEASTERLY LINE OF SAID LOT, THENCE
NORTHWESTERLY AND SOUTHERLY ALONG SAID CURVE TO SAID NORTHWESTERLY LINE.
Burbank Executive Plaza, Burbank
PAGE 14 OF 30
EXHIBIT A-12
LEGAL DESCRIPTION
PARCEL A:
THOSE PORTIONS OF XXXX 0 XXX 0 XX XXXXX 00000, XX THE CITY OF MONTEREY PARK,
AS PER MAP RECORDED IN BOOK 1012 PAGES 21 TO 27 INCLUSIVE OF MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS A WHOLE AS FOLLOWS:
BEGINNING AT THE EASTERLY COMMON CORNER OF SAID LOTS 1 AND 2; THENCE WESTERLY
ALONG XXX XXXXXX XXX XXXX XX XXXX XXXX, XXXXX 00 DEG. 39' 21" WEST 565.23
FEET; THENCE NORTHERLY, LEAVING SAID COMMON LOT LINE, NORTH 7 DEG. 56' 42"
WEST 25.17 FEET; THENCE NORTH 5 DEG. 04' 53" WEST 20.18 FEET; THENCE NORTH 6
DEG. 29' 18" EAST 21.00 FEET; THENCE NORTH 12 DEG. 05' 48" EAST 57.46 FEET;
THENCE NORTH 15 DEG. 03' 32" EAST 64.94 FEET; THENCE NORTH 18 DEG. 27' 48"
EAST 39.37 FEET; THENCE NORTH 12 DEG. 00' 31" EAST 194.35 FEET; THENCE SOUTH
89 DEG. 39' 21" WEST 267.98 FEET TO A POINT IN THE EASTERLY RIGHT-OF-WAY OF
CORPORATE CENTER DRIVE, VARIABLE WIDTH, AS SHOWN ON SAID MAP, SAID POINT LIES
ON A CURVE CONCAVE EASTERLY HAVING A RADIUS OF 442.00 FEET, A RADIAL LINE TO
SAID POINT BEARS NORTH 83 DEG. 07' 50" EAST; THENCE SOUTHERLY ALONG SAID
RIGHT-OF-WAY AND CURVE THROUGH A CENTRAL ANGLE OF 7 DEG. 00' 10", AN ARC
LENGTH OF 54.02 FEET; THENCE TANGENT TO SAID CURVE, SOUTH 0 DEG. 08' 00" WEST
170.26 FEET TO A TANGENT CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF
358.00 FEET; THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 31
DEG. 31' 00" AN ARC DISTANCE OF 196.92 FEET; THENCE SOUTHERLY, TANGENT TO
SAID CURVE, SOUTH 31 DEG. 23' 00" EAST 370.00 FEET TO A TANGENT CURVE CONCAVE
SOUTHWESTERLY HAVING
L.A. Corporate Center, Monterey Park
PAGE 15 OF 30
A RADIUS OF 492.00 FEET; THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL
ANGLE OF 17 DEG. 38' 28" AN ARC DISTANCE OF 151.48 FEET TO THE COMMON XXX
XXXXXX XX XXXX 0 XXX 0 XX XXXX XXX, A RADIAL LINE TO SAID CORNER BEARS NORTH
76 DEG. 15' 28" EAST; THENCE LEAVING SAID CURVE AND SAID RIGHT-OF-WAY,
EASTERLY ALONG THE COMMON LINE OF SAID XXXX 0 XXX 0, XXXXX 00 XXX. 15' 28"
EAST 461.67 FEET TO THE EASTERLY LINE OF LOT 2; THENCE NORTHERLY ALONG SAID
EASTERLY LINE NORTH 0 DEG. 01' 03" WEST 349.69 FEET TO THE POINT OF BEGINNING.
EXCEPT THEREFROM ALL GAS, OIL, AND OTHER HYDROCARBON SUBSTANCES AND ALL OTHER
MINERALS IN AND FROM THE LAND DESCRIBED IN DEED MENTIONED HEREAFTER,
PROVIDED, HOWEVER, NO RIGHT IS RESERVED TO ENTER ON OR FROM THE SURFACE OF
SAID LAND, THE RIGHT TO ENTER THE SUBSURFACE OF SAID PROPERTY, WHICH IS ALSO
RESERVED SHALL BE AT ANY POINT BELOW A DEPTH OF 500 FEET FROM THE SURFACE
THEREOF (MEASURED VERTICALLY FROM THE SURFACE THEREOF) IN ORDER TO TAKE FROM
SAID LAND AND REDUCE TO POSSESSION ANY OIL, GAS AND OTHER HYDROCARBON
SUBSTANCES AND ALL OTHER MINERALS, AS EXCEPTED AND RESERVED BY XXXXX XXXXXXX
XXXXXX, A WIDOW, ET AL., IN DEED TO BOBWILL BUILDING CO., A CORPORATION
RECORDED SEPTEMBER 13, 1955 AS INSTRUMENT NO. 2398 IN BOOK 48924 PAGE 346
OFFICIAL RECORDS.
PARCEL A-1:
A NON-EXCLUSIVE EASEMENT FOR PARKING FACILITY, VEHICULAR AND PEDESTRIAN
INGRESS AND EGRESS TO AND FROM SAID PARKING FACILITY, AND UTILITIES ATTENDANT
TO THE OPERATION AND MAINTENANCE THEREOF, AS CONTAINED IN THAT CERTAIN
AGREEMENT OF PARKING EASEMENT, DATED APRIL 9, 1990, BY AND BETWEEN LOS
ANGELES CORPORATE CENTER VENTURE, A CALIFORNIA GENERAL PARTNERSHIP, AND THE
REDEVELOPMENT AGENCY OF MONTEREY PARK AND THE CITY OF MONTEREY PARK, RECORDED
APRIL 9, 1990 AS INSTRUMENT NO. 90-668740, OVER THAT PORTION OF XXX 0 XX
XXXXX XXX XX. 00000, XX THE CITY OF MONTEREY PARK, AS PER MAP RECORDED IN
BOOK 1012 PAGES 21 TO 27 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, DESCRIBED AS A WHOLE AS FOLLOWS:
BEGINNING AT THE MOST EASTERLY COMMON CORNER OF SAID XXX 0 XXX XXX 0 XX XXXXX
XX XXXX XXX; THENCE WESTERLY ALONG THE COMMON LOT LINE OF SAID XXXX 0 XXX 0,
XXXXX 00 XXX. 39' 21" WEST 25.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE
CONTINUING ALONG SAID COMMON LOT LINE, SOUTH 89 DEG. 39' 21" WEST 240.00
FEET; THENCE NORTHERLY LEAVING SAID COMMON LOT LINE, NORTH 0 DEG. 20' 39"
WEST 87.00 FEET; THENCE EASTERLY, PARALLEL TO SAID COMMON LOT LINE, NORTH 89
DEG. 39' 21" EAST 240.00 FEET; THENCE SOUTHERLY SOUTH 0 DEG. 20' 39" EAST
87.00 FEET TO THE TRUE POINT OF BEGINNING.
PARCEL B:
XXX 0 XX XXXXX 00000, IN THE CITY OF MONTEREY PARK, AS PER MAP RECORDED IN
BOOK 1012 PAGES 21 TO 27 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, EXCEPT THEREFROM THAT PORTION OF SAID LOT 4
DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST EASTERLY CORNER OF SAID LOT 4; THENCE ALONG THE
NORTHEASTERLY LINE OF SAID XXX 0, XXXXX 00 XXX. 05' 00" WEST 336.04 FEET;
THENCE SOUTH 7 DEG. 46' 24" EAST 36.06 FEET TO A LINE THAT IS PARALLEL WITH
AND DISTANT SOUTHWESTERLY 30.00 FEET, MEASURED AT RIGHT ANGLES, FROM SAID
NORTHEASTERLY LINE OF LOT 4; THENCE SOUTHEASTERLY ALONG SAID PARALLEL LINE
SOUTH 64 DEG. 05' 00" EAST 306.32 FEET TO THE SOUTHEASTERLY LINE OF SAID LOT
4; THENCE
L.A. Corporate Center, Monterey Park
PAGE 16 OF 30
ALONG SAID SOUTHEASTERLY LINE OF XXX 0, XXXXX 00 XXX. 51' 17"
EAST 31.53 FEET TO THE POINT OF BEGINNING.
ALSO THAT CERTAIN PORTION OF XXX 0 XX XXXX XXXXX 00000 DESCRIBED IN A
DOCUMENT RECORDED OCTOBER 25, 1984 AS INSTRUMENT NO. 00-0000000, AS FOLLOWS:
A STRIP OF LAND 10 FEET IN WIDTH, THE NORTHEASTERLY LINE OF SAID STRIP BEING
THAT CERTAIN COURSE IN THE NORTHEASTERLY BOUNDARY OF SAID LOT 5 HAVING A
BEARING AND DISTANCE OF NORTH 42 DEG. 02' 01" WEST 389.65 FEET.
EXCEPT THEREFROM ALL GAS, OIL, AND OTHER HYDROCARBON SUBSTANCES AND ALL
OTHER MINERALS IN AND FROM THE LAND DESCRIBED IN DEED MENTIONED HEREAFTER,
PROVIDED, HOWEVER, NO RIGHT IS RESERVED TO ENTER IN OR FROM THE SURFACE OF
SAID LAND, THE RIGHT TO ENTER THE SUBSURFACE OF SAID PROPERTY, WHICH IS ALSO
RESERVED SHALL BE AT ANY POINT BELOW A DEPTH OF 500 FEET FROM THE SURFACE
THEREOF (MEASURED VERTICALLY FROM THE SURFACE THEREOF) IN ORDER TO TAKE FROM
SAID LAND AND REDUCE TO POSSESSION ANY OIL, GAS AND OTHER HYDROCARBON
SUBSTANCES AND ALL OTHER MINERALS, AS EXCEPTED AND RESERVED BY XXXXX XXXXXXX
XXXXXX, A WIDOW, ET AL., IN DEED TO BOBWILL BUILDING CO., A CORPORATION
RECORDED SEPTEMBER 13, 1955 AS INSTRUMENT NO. 2398 IN BOOK 48924 PAGE 346
OFFICIAL RECORDS.
PARCEL B-1:
AN EASEMENT FOR PARKING AND INGRESS AND EGRESS AS GRANTED IN THAT CERTAIN
AGREEMENT OF PARKING EASEMENT AND MAINTENANCE AGREEMENT BY AND BETWEEN LOS
ANGELES CORPORATE CENTER VENTURE, A CALIFORNIA GENERAL PARTNERSHIP, AND LOS
ANGELES CORPORATE CENTER VENTURE II, A CALIFORNIA GENERAL PARTNERSHIP,
RECORDED JULY 23, 1986 AS INSTRUMENT NO. 86-931242 OVER THAT PORTION OF XXXX 0
XXX XXX 0 XX XXXXX 00000, XX THE CITY OF MONTEREY PARK, AS PER MAP RECORDED
IN BOOK 1012 PAGES 21 TO 27 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWESTERLY CORNER OF SAID LOT 3, SAID CORNER BEING A
POINT IN THE NORTHEASTERLY LINE OF CORPORATE CENTER DRIVE, 64.00 FEET WIDE,
AS SHOWN ON THE MAP OF SAID TRACT 42611; THENCE ALONG THE NORTHERLY AND
NORTHEASTERLY BOUNDARY OF SAID XXX 0, XXXXX 00 XXX. 15' 28" EAST 461.87 FEET;
THENCE SOUTH 0 DEG. 01' 03" EAST 109.63 FEET; THENCE SOUTH 46 DEG. 08' 45"
EAST 121.91 FEET; THENCE LEAVING SAID NORTHEASTERLY BOUNDARY OF XXX 0, XXXXX
00 XXX. 21' 07" WEST 83.00 FEET; THENCE SOUTH 36 DEG. 13' 46" WEST 46.00
FEET; THENCE SOUTH 45 DEG. 50' 48" WEST 105.46 FEET; THENCE SOUTH 27 DEG. 08'
18" WEST 231.27 FEET TO A LINE PARALLEL TO AND DISTANT SOUTHWESTERLY 30.00
FEET, MEASURED AT RIGHT ANGLES, FROM THE SOUTHWESTERLY LINE OF SAID LOT 3;
THENCE NORTHWESTERLY ALONG SAID PARALLEL LINE NORTH 64 DEG. 05' 00" WEST
193.41 FEET; THENCE NORTH 25 DEG. 55' 00" EAST 30.00 FEET TO SAID
SOUTHWESTERLY LINE OF LOT 3; THENCE NORTHWESTERLY ALONG SAID SOUTHWESTERLY
LINE NORTH 64 DEG. 05' 00" WEST 18.00 FEET; THENCE NORTH 25 DEG. 55' 00" EAST
276.15 FEET; THENCE NORTH 64 DEG. 05' 00" WEST 189.44 FEET; THENCE SOUTH 76
DEG. 15' 28" WEST 63.39 FEET TO A POINT IN SAID NORTHEASTERLY LINE OF
CORPORATE CENTER DRIVE, SAID POINT BEING A POINT IN A CURVE CONCAVE TO THE
WEST HAVING A RADIUS OF 492.00 FEET; TO WHICH A RADIAL LINE BEARS NORTH 81
DEG. 16' 19" EAST; THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE
OF 5 DEG. 00' 51", AN ARC DISTANCE OF 43.06 FEET TO THE POINT OF BEGINNING.
L.A. Corporate Center, Monterey Park
PAGE 17 OF 30
PARCEL C:
XXX 00 XX XXXXX 00000, IN THE CITY OF MONTEREY PARK, AS PER MAP RECORDED IN
BOOK 1012 PAGES 21 TO 27 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPT A STRIP OF LAND 10 FEET IN WIDTH, THE NORTHWESTERLY LINE OF SAID STRIP
BEING THAT CERTAIN COURSE IN THE NORTHEASTERLY BOUNDARY OF SAID LOT 18 HAVING
A BEARING AND DISTANCE OF NORTH 65 DEG. 04' 00" WEST 438.07 FEET, AS
DESCRIBED IN A DOCUMENT RECORDED OCTOBER 25, 1984 AS INSTRUMENT NO.
00-0000000.
ALSO EXCEPT ALL OIL, ASPHALTUM, PETROLEUM, AND NATURAL GAS, TAR OR OTHER
HYDROCARBON SUBSTANCES AND PRODUCTS, FROM UNDER OR UPON THE SAID LANDS, WITH
THE RIGHT TO REMOVE AND STORE AND SELL SUCH SUBSTANCES AND PRODUCTS
THEREFROM, TOGETHER WITH ALL RIGHTS FOR THE PURPOSE OF MINING, EXCAVATING,
BORING, DRILLING, SINKING OR OTHERWISE COLLECTING AND DEVELOPING SAID MINERAL
SUBSTANCES AND THE RIGHT TO DEVELOP, STORE AND USE WATER FOR SUCH OPERATIONS
AND DEVELOPMENT, AS RESERVED IN DEED FROM HUNTINGTON LAND AND IMPROVEMENT
COMPANY, A CALIFORNIA CORPORATION, RECORDED OCTOBER 25, 1918 IN BOOK 6707
PAGE 300 OF DEEDS, ALL OF WHICH RIGHTS WERE LIMITED TO THAT PORTION LYING
BELOW A DEPTH OF 500 FEET, MEASURED FROM THE SURFACE OF SAID LAND, BY DEED
EXECUTED BY SECURITY PACIFIC NATIONAL BANK, A NATIONAL BANKING ASSOCIATION,
SUCCESSOR BY MERGER TO SECURITY FIRST NATIONAL BANK OF LOS ANGELES, AS TRUSTEE
UNDER THE WILL OF XXXXX X. XXXXXXXXXX, DECEASED, (TRUST NO. 2-018442-0)
RECORDED DECEMBER 17, 1960 AS INSTRUMENT NO. 00-0000000, FROM UNDER OR UPON
THAT PORTION OF SAID LAND LYING WITHIN A PORTION OF THE XXXXXXXXX XXXXXXX XX
XXXXXXX 00, XXXXXXXX 0 XXXXX, XXXXX 12 WEST, SAN BERNARDINO MERIDIAN,
DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE NORTHERLY LINE OF SAID SECTION 32, SAID POINT
BEING 466.52 FEET EASTERLY OF THE NORTHWEST CORNER OF SAID SECTION 32; THENCE
SOUTHERLY ALONG A LINE PARALLEL WITH THE WESTERLY LINE OF SAID SECTION 32,
500 FEET TO A POINT; THENCE EASTERLY ALONG A LINE PARALLEL WITH THE NORTHERLY
LINE OF SAID SECTION 32 TO ITS INTERSECTION WITH THE EASTERLY LINE OF SAID
NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF SAID SECTION 32; THENCE
NORTHERLY ALONG SAID EASTERLY LINE OF THE NORTHWEST QUARTER OF THE NORTHWEST
QUARTER OF SAID SECTION 32, 500 FEET TO THE NORTHERLY LINE OF SAID SECTION;
THENCE WESTERLY ALONG THE NORTHERLY LINE OF SAID SECTION TO THE POINT OF
BEGINNING.
ALSO EXCEPT THEREFROM ALL GAS, OIL AND OTHER HYDROCARBON SUBSTANCES AND ALL
OTHER MINERALS IN AND FROM THE LAND DESCRIBED IN DEED MENTIONED HEREAFTER,
PROVIDED, HOWEVER, NO RIGHT IS RESERVED TO ENTER ON OR FROM THE SURFACE OF
SAID LAND, THE RIGHT TO ENTER THE SUBSURFACE OF SAID PROPERTY, WHICH IS ALSO
RESERVED SHALL BE AT ANY POINT BELOW A DEPTH OF 500 FEET FROM THE SURFACE
THEREOF. (MEASURED VERTICALLY FROM THE SURFACE THEREOF) IN ORDER TO TAKE FROM
SAID LAND AND REDUCE TO POSSESSION ANY OIL, GAS AND OTHER HYDROCARBON
SUBSTANCES AND ALL OTHER MINERALS, AS EXCEPTED AND RESERVED BY XXXXX XXXXXXX
XXXXXX, A WIDOW, ET AL. IN DEED TO BOBWILL BUILDING CO., A CORPORATION,
RECORDED SEPTEMBER 13, 1955 AS INSTRUMENT NO. 2398 IN BOOK 48924 PAGE 346,
OFFICIAL RECORDS.
L.A. Corporate Center, Monterey Park
PAGE 18 OF 30
PARCEL D:
XXX 0 XX XXXXX 00000, IN THE CITY OF MONTEREY PARK, AS PER MAP RECORDED IN
BOOK 1012 PAGES 21 TO 27 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, ALSO THAT CERTAIN PORTION OF XXX 0 XX XXXX XXXXX
00000, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST EASTERLY CORNER OF SAID LOT 4; THENCE ALONG THE
NORTHEASTERLY LINE OF SAID XXX 0, XXXXX 00 XXX. 05' 00" WEST 336.04 FEET;
THENCE SOUTH 7 DEG. 46' 24" EAST 36.06 FEET TO A LINE THAT IS PARALLEL WITH
AND DISTANT SOUTHWESTERLY 30.00 FEET, MEASURED AT RIGHT ANGLES, FROM SAID
NORTHEASTERLY LINE OF LOT 4; THENCE SOUTHEASTERLY ALONG SAID PARALLEL LINE
SOUTH 64 DEG. 05' 00" EAST 306.32 FEET TO THE SOUTHEASTERLY LINE OF SAID LOT
4; THENCE ALONG SAID SOUTHEASTERLY LINE OF XXX 0, XXXXX 00 XXX. 51' 17" EAST
31.53 FEET TO THE POINT OF THE BEGINNING.
EXCEPT THEREFROM ALL GAS, OIL, AND OTHER HYDROCARBON SUBSTANCES AND ALL OTHER
MINERALS IN AND FROM THE LAND DESCRIBED IN DEED MENTIONED HEREAFTER,
PROVIDED, HOWEVER, NO RIGHT IS RESERVED TO ENTER ON OR FROM THE SURFACE OF
SAID LAND, THE RIGHT TO ENTER THE SUBSURFACE OF SAID PROPERTY, WHICH IS ALSO
RESERVED SHALL BE AT ANY POINT BELOW A DEPTH OF 500 FEET FROM THE SURFACE
THEREOF (MEASURED VERTICALLY FROM THE SURFACE THEREOF) IN ORDER TO TAKE FROM
SAID LAND AND REDUCE TO POSSESSION ANY OIL, GAS AND OTHER HYDROCARBON
SUBSTANCES AND ALL OTHER MINERALS, AS EXCEPTED AND RESERVED BY XXXXX XXXXXXX
XXXXXX, A WIDOW, ET AL., IN DEED TO BOBWILL BUILDING CO., A CORPORATION,
RECORDED SEPTEMBER 13, 1955 AS INSTRUMENT NO. 2398 IN BOOK 48924 PAGE 346,
OFFICIAL RECORDS.
PARCEL D-1:
AN EASEMENT FOR PARKING AND INGRESS AND EGRESS AS GRANTED IN THAT CERTAIN
AGREEMENT OF PARKING EASEMENT AND MAINTENANCE AGREEMENT BY AND BETWEEN LOS
ANGELES CORPORATE CENTER VENTURE, A CALIFORNIA GENERAL PARTNERSHIP, AND LOS
ANGELES CORPORATE CENTER VENTURE II, A CALIFORNIA GENERAL PARTNERSHIP,
RECORDED JULY 23, 1986 AS INSTRUMENT NO. 86-931242 OVER THAT PORTION OF XXX 0
XX XXXXX 00000, IN THE CITY OF MONTEREY PARK, AS PER MAP RECORDED IN BOOK
1012 PAGES 21 TO 27 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY, DESCRIBED AS A WHOLE AS FOLLOWS:
BEGINNING AT A POINT IN THE NORTHEASTERLY LINE OF SAID XXX 0, XXXXXXX XXXXXXX
XXXXX 00 XXX. 05' 00" EAST 170.97 FEET FROM THE MOST NORTHERLY CORNER OF SAID
LOT 4; THENCE SOUTH 25 DEG. 55' 00" WEST 30.00 FEET TO THE TRUE POINT OF
BEGINNING; THENCE SOUTH 25 DEG. 55' 00" WEST 203.50 FEET TO THE BEGINNING OF
A TANGENT CURVE CONCAVE TO THE NORTHWEST HAVING A RADIUS OF 24.50 FEET;
THENCE SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 90 DEG. 00'
00" AN ARC DISTANCE 38.46 FEET; THENCE NORTH 64 DEG. 05' 00" WEST 145.40 FEET
TO A POINT IN THE EASTERLY LINE OF CORPORATE CENTER DRIVE, 84.00 FEET WIDE,
AS SHOWN ON THE MAP OF SAID TRACT 42611, SAID EASTERLY LINE BEING A CURVE
CONCAVE TO THE NORTHWEST HAVING A RADIUS OF 642.00 FEET, A RADIAL LINE TO
SAID POINT BEARS SOUTH 61 DEG. 25' 43" EAST; THENCE SOUTHERLY ALONG SAID
CURVE THROUGH A CENTRAL ANGLE OF 2 DEG. 06' 50" AN ARC DISTANCE OF 31.07
FEET; THENCE SOUTH 64 DEG. 05' 00" EAST 7.91 FEET, THENCE SOUTH 25 DEG. 55'
00" WEST 263.84 FEET; THENCE SOUTH 64 DEG. 05' 00" EAST 183.00 FEET; THENCE
NORTH 25 DEG. 55' 00" EAST 263.84 FEET; THENCE SOUTH 64 DEG. 05' 00" EAST
42.19 FEET; THENCE NORTH 65 DEG. 00' 01" EAST 61.13 FEET; THENCE NORTH 35
DEG. 03' 37" EAST 46.86 FEET; THENCE NORTH 46 DEG. 37' 10" EAST 71.29 FEET;
THENCE NORTH 42 DEG. 46' 00"
X.X. Xxxxxxxxx Xxxxxx, Xxxxxxxx Xxxx
PAGE 19 OF 30
EAST 103.03 FEET TO A LINE PARALLEL TO AND DISTANT SOUTHWESTERLY 30.00 FEET,
MEASURED AT RIGHT ANGLES, FROM THE NORTHEASTERLY LINE OF SAID LOT 4; THENCE
NORTHWESTERLY ALONG SAID PARALLEL LINE NORTH 64 DEG. 05' 00" WEST 162.24 FEET
TO THE TRUE POINT OF BEGINNING.
PARCEL E:
XXX 0 XXX XXXXXXX XX XXXX 0 XXX 0 XX XXXXX 00000, IN THE CITY OF MONTEREY
PARK, AS PER MAP RECORDED IN BOOK 1012 PAGES 21 TO 27 INCLUSIVE OF MAPS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF PARCEL 1 OF PARCEL MAP NO. 16386, IN
SAID CITY, COUNTY AND STATE, AS PER MAP FILED IN BOOK 175 PAGES 36 TO 40
INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, SAID POINT ALSO BEING THE BEGINNING OF A NON-TANGENT CURVE CONCAVE
NORTHWESTERLY HAVING A RADIUS OF 1,012 FEET, TO WHICH A RADIAL THROUGH SAID
POINT BEARS SOUTH 54 DEG. 50' 33" EAST; THENCE NORTHEASTERLY ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 10 DEG. 13' 27" AN ARC DISTANCE 180.59 FEET;
THENCE NORTH 24 DEG. 56' 00" EAST 241.00 FEET TO THE BEGINNING OF A CURVE
CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 25.00 FEET; THENCE NORTHEASTERLY,
EASTERLY AND SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 90
DEG. 00' 00", AN ARC DISTANCE OF 39.27 FEET; THENCE SOUGH 65 DEG. 04' 00"
EAST 63.39 FEET TO THE BEGINNING OF A CURVE CONCAVE NORTHEASTERLY HAVING A
RADIUS OF 507.00 FEET; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A
CENTRAL ANGLE OF 24 DEG. 39' 00", AN ARC DISTANCE OF 218.12 FEET; THENCE
SOUTH 89 DEG. 43' 00" EAST 240.48 FEET TO THE BEGINNING OF CURVE CONCAVE
SOUTHWESTERLY HAVING A RADIUS OF 833.00 FEET; THENCE EASTERLY ALONG SAID
CURVE THROUGH A CENTRAL ANGLE OF 4 DEG. 04' 23" AN ARC DISTANCE OF 45.00 FEET
TO A POINT ON A NON-TANGENT LINE, TO WHICH A RADIAL THROUGH SAID POINT BEARS
NORTH 4 DEG. 21' 23" EAST; THENCE ALONG SAID NON-TANGENT LINE SOUTH 30 DEG.
57' 00" WEST 152.00 FEET; THENCE SOUTH 0 DEG. 02' 40" EAST 20.00 FEET TO THE
NORTHERLY TERMINUS OF A LINE OF SAID XXX 0 XXXX XXXXX XXXXX 0 XXX. 02' 40"
WEST 154.89 FEET; THENCE CONTINUING SOUTH ALONG THE EASTERLY LINE OF
SAID XXX 0, XXXXX 0 XXX. 02' 40" EAST 154.89 FEET TO AN ANGLE POINT IN THE
EASTERLY LINE OF SAID LOT 9; THENCE CONTINUING SOUTH ALONG THE EASTERLY LINE
OF SAID XXX 0, XXXXX 0 XXX. 20' 17" EAST 0.11 FEET TO XXX XXXXXXXXX XXXX XX
XXXX XXXXXX XXX XX. 00000; THENCE WESTERLY ALONG SAID NORTHERLY LINE SOUTH 89
DEG. 38' 12" WEST 701.23 FEET TO THE POINT OF BEGINNING.
EXCEPT THEREFROM ALL GAS, OIL, AND OTHER HYDROCARBON SUBSTANCES AND ALL OTHER
MINERALS IN AND FROM THE LAND DESCRIBED IN DEED MENTIONED HEREAFTER,
PROVIDED, HOWEVER, NO RIGHT IS RESERVED TO ENTER ON OR FROM THE SURFACE OF
SAID LAND, THE RIGHT TO ENTER THE SUBSURFACE OF SAID PROPERTY, WHICH IS ALSO
RESERVED SHALL BE AT ANY POINT BELOW A DEPTH OF 500 FEET FROM THE SURFACE
THEREOF (MEASURED VERTICALLY FROM THE SURFACE THEREOF) IN ORDER TO TAKE FROM
SAID LAND AND REDUCE TO POSSESSION ANY OIL, GAS AND OTHER HYDROCARBON
SUBSTANCES AND ALL OTHER MINERALS, AS EXCEPTED AND RESERVED BY XXXXX XXXXXXX
XXXXXX, A WIDOW, ET AL., IN DEED TO BOBWILL BUILDING CO., A CORPORATION,
RECORDED SEPTEMBER 13, 1955 AS INSTRUMENT NO. 2398 IN BOOK 48924 PAGE 346,
OFFICIAL RECORDS.
ALSO EXCEPT FROM A PORTION THEREOF ALL OIL, GAS, MINERALS AND OTHER
HYDROCARBON SUBSTANCES LYING IN AND UNDER SAID LAND BELOW A DEPTH OF 500 FEET
FROM THE SURFACE THEREOF, WITHOUT THE RIGHT OF SURFACE ENTRY, AS RESERVED BY
XXXX X. XXXXX, AS TRUSTEE, UNDER DECLARATION OF TRUST, DATED JULY 21, 1953
ESTABLISHED BY XXXXXX XXXXXXXX, TRUSTOR, IN THE DEED RECORDED
L.A. Corporate Center, Monterey Park
PAGE 20 OF 30
ON MAY 8, 1981 AS INSTRUMENT NO. 81-461705.
PARCEL F:
EASEMENTS AND OTHER RIGHTS CREATED BY THE (1) COVENANTS, CONDITIONS AND
RESTRICTIONS, RECORDED OCTOBER 12, 1963 AS INSTRUMENT NO. 00-0000000, AS
AMENDED BY DOCUMENT RECORDED MAY 14, 1987 AS INSTRUMENT NO. 87-754911,
DOCUMENT RECORDED MAY 14, 1967 AS INSTRUMENT NO. 87-754913 AND DOCUMENT
RECORDED NOVEMBER 30, 1989 AS INSTRUMENT NO. 89-1926876; (2) RESOLUTION
RECORDED JANUARY 29, 1990 AS INSTRUMENT NO. 90-155862; AND (3) COVENANTS,
CONDITIONS AND RESTRICTIONS RECORDED APRIL 9, 1990 AS INSTRUMENT NO.
90-668739.
L.A. Corporate Center, Monterey Park
PAGE 21 OF 30
EXHIBIT X-00
XXXXX XXXXXXXXXXX
XXXXXX 0 XX XXXXXX XXX 00000, XX THE CITY OF NORWALK, AS PER MAP FILED IN
BOOK 120 PAGE 44 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
EXCEPT THAT PORTION LYING SOUTH AND EAST OF THE FOLLOWING DESCRIBED LINE:
BEGINNING AT THE NORTHEAST CORNER OF SAID PARCEL 1; THENCE ALONG THE EASTERLY
LINE OF SAID PARCEL 1, 39.50 FEET TO THE TRUE POINT OF BEGINNING; THENCE
LEAVING SAID EASTERLY LINE SOUTH 89 DEG. 46' 55" WEST, A DISTANCE OF 396.00
FEET; THENCE SOUTH 44 DEG. 47' 45" WEST, A DISTANCE OF 14.15 FEET; THENCE
SOUTH 00 DEG. 11' 25" EAST, A DISTANCE OF 557.50 FEET TO A POINT IN THE
SOUTHERLY LINE OF SAID PARCEL 1.
SUCH PARCEL IS ALSO KNOW AS PARCEL 1 SHOWN ON EXHIBIT C TO LOT LINE
ADJUSTMENT NO. 25 RECORDED AUGUST 3, 1993 AS INSTRUMENT NO. 00-0000000.
NORWALK, Norwalk
PAGE 22 OF 30
EXHIBIT A-14
LEGAL DESCRIPTION
PARCEL 1:
PARCELS "B" AND "C" OF PARCEL MAP L.A. NO. 4316, IN THE CITY OF LOS ANGELES,
AS PER MAP FILED IN BOOK 121 PAGE 46 OF PARCEL MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
PARCEL 2:
THE FOLLOWING DESCRIPTION EASEMENT AS CREATED BY THAT CERTAIN DOCUMENT
ENTITLED "RECIPROCAL GRANT OF EASEMENTS AND MAINTENANCE AGREEMENT
(DRIVEWAY)" DATED DECEMBER 5, 1980 AND RECORDED DECEMBER 5, 1980 AS
INSTRUMENT NO. 00-0000000:
A NON-EXCLUSIVE AND PERPETUAL EASEMENT, APPURTENANT TO PARCEL 1 ABOVE, FOR
THE PURPOSE OF PEDESTRIAN AND VEHICULAR INGRESS, EGRESS, AND ACCESS;
MAINTENANCE, REPAIR AND REPLACEMENT OF DRIVEWAYS, UNDERGROUND UTILITIES,
SEWERS, STORM DRAINS AND SIMILAR FACILITIES, CURBS, GUTTERS, TRAFFIC ISLANDS,
LIGHTING FACILITIES, PLANTS AND LANDSCAPING, PLANTERS, SPRINKLERS, AND
VALVES, AND INCIDENTAL PURPOSES; OVER, UNDER, ACROSS AND THROUGH THE EASTERLY
MOST 20 FEET OF PARTIAL "A" OF PARCEL MAP L.A. NO. 4318 (REFERRED TO IN
PARCEL 1 ABOVE).
Skyview Center, Los Angeles PAGE 23 OF 30
PARCEL 3:
XXXX 00, 00, 00, 00 XXX 00 (XXXXXX THE WEST 125 FEET OF SAID XXX 00) XX XXXXX
00000, IN THE CITY OF LOS ANGELES, AS PER MAP RECORDED IN BOOK 267 PAGES 43
AND 44 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 4:
XXXX 00, 00, 00, 00, 00, 00, 00, 00, 93, 108, 109, 110, 111, 112, 113, 114,
115 AND 116 OF TRACT 13403, IN THE CITY OF LOS ANGELES, AS PER MAP RECORDED
IN BOOK 288 PAGES 1 TO 3, INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPT THEREFROM ALL OIL, GAS OR OTHER HYDROCARBON SUBSTANCES LYING IN, UNDER
AND WHICH MAY BE PRODUCED FROM A DEPTH BELOW 500 FEET BELOW THE SURFACE OF
SAID REAL PROPERTY (MEASURED VERTICALLY FROM THE SURFACE THEREOF), PROVIDED,
HOWEVER, NO RIGHT IS RESERVED TO THE GRANTOR, IS SUCCESSORS AND ASSIGNS, BY
REASON OF THIS EXCEPTION OR RESERVATION, TO ENTER ON OR FROM THE SURFACE OF
SAID PROPERTY, AS RESERVED BY XXX X. XXXXX AND XXXXX X. XXXXX, HUSBAND AND
WIFE, BY DEED DATED DECEMBER 22, 1969, RECORDED FEBRUARY 13, 1970 IN BOOK
D4832 PAGE 610, OFFICIAL RECORDS, AS TO LOTS 85 AND 116; AND AS RESERVED BY
XXXXXXX X. XXXXXX AND MARCIELLETTE X. XXXXXX, HUSBAND AND WIFE, BY DEED DATED
AUGUST 10, 1970 RECORDED AUGUST 24, 1970 IN BOOK D4810 PAGE 522, OFFICIAL
RECORDS, AS TO LOTS 86, 115 AND 118; AS RESERVED BY XXXXXXX X. XXXXXX, AN
UNMARRIED MAN, BY DEED DATED JANUARY 12, 1970, RECORDED FEBRUARY 19, 1970 IN
BOOK D4637 PAGE 156, OFFICIAL RECORDS AS TO LOT 87; AND AS RESERVED BY XXXXX
X. XXXXXX AND XXXX XXXXX XXXXXX, HUSBAND AND WIFE, BY DEED DATED DECEMBER 22,
1969, RECORDED FEBRUARY 2, 1970 IN BOOK D4622 PAGE 82, OFFICIAL RECORDS, AS
TO LOTS 88 AND 113; AND AS RESERVED BY XXXX X. XXXXXX AND XXXXXXX X. XXXXXX,
HUSBAND AND WIFE, AS TO LOTS 89 AND 112, IN DEED RECORDED MARCH 10, 1969 AS
INSTRUMENT NO. 335 IN BOOK D4301 PAGE 462, OFFICIAL RECORDS AND AS RESERVED
BY XXXXXXX X. XXXXXX AND MARCIELLETTE X. XXXXXX, HUSBAND AND WIFE, AS TO LOTS
90 AND 111, IN DEED RECORDED MARCH 10, 1969 AS INSTRUMENT NO. 334 IN BOOK
D4301 PAGE 461, OFFICIAL RECORDS; AND AS RESERVED BY XXXXXX XXXXXX AND XXXXX
XXXXXX, HUSBAND AND WIFE, AS TO LOTS 92 AND 109, IN DEED RECORDED MARCH 10,
1969 AS INSTRUMENT NO. 331 IN BOOK D4301 PAGE 460, OFFICIAL RECORDS; AND AS
RESERVED BY XXXXX X. XXXXXX AND XXXXXX X. XXXXXX, HUSBAND AND WIFE, AS TO
LOTS 93 AND 108, IN DEED RECORDED MARCH 10, 1969 AS INSTRUMENT NO. 328, IN
BOOK D4301 PAGE 459, OFFICIAL RECORDS; AND AS RESERVED BY XXXXXX XXXXXXX
XXXX, AS EXECUTRIX OF THE LAST WILL AND TESTAMENT OF XXXXXXXX XXXXXXXX XXXXX,
DECEASED, BY DEED DATED MAY 27, 1971, RECORDED JUNE 14, 1971 IN BOOK 5099
PAGE 862, OFFICIAL RECORDS, AS TO LOT 114.
ALSO EXCEPTING AS TO LOTS 91 AND 110, ALL OIL, GAS, MINERALS AND OTHER
HYDROCARBON SUBSTANCES LYING WITHIN THAT PORTION OF THE LAND HEREIN CONVEYED
WHICH LIES BELOW A DEPTH OF 500 FEET FROM THE PRESENT SURFACE THEREOF,
WITHOUT ANY RIGHT TO ENTER UPON OR INTO THE SURFACE OR TOP 500 FEET OF THE
SUBSURFACE OF SAID LAND, AS EXCEPTED IN DEED RECORDED JULY 18, 1978 AS
INSTRUMENT NO. 78-777109.
PARCEL 5:
XXXX 000, 000, 000, 000, 000, 000, 000, 165, 166, 167, 168, 169, 170, 171,
172, 173, 174, 190, 000,
Xxxxxxx Xxxxxx, Xxx Xxxxxxx PAGE 24 OF 30
192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206 OF
TRACT 13711, IN THE CITY OF LOS ANGELES, AS PER MAP RECORDED IN BOOK 276
PAGES 48 TO 50, INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY.
EXCEPT THEREFROM ALL OIL, GAS OR OTHER HYDROCARBON SUBSTANCES LYING IN, UNDER
AND WHICH MAY BE PRODUCED FROM A DEPTH BELOW 500 FEET BELOW THE SURFACE OF
SAID REAL PROPERTY (MEASURED VERTICALLY FROM THE SURFACE THEREOF), PROVIDED,
HOWEVER, NO RIGHT IS RESERVED TO THE GRANTOR, IS SUCCESSORS AND ASSIGNS, BY
REASON OF THIS EXCEPTION OR RESERVATION TO ENTER ON OR FROM THE SURFACE OF
SAID PROPERTY, AS RESERVED BY XXXXXX TO XXXXX, A MARRIED MAN, WHO ACQUIRED
TITLE AS A SINGLE MAN, DATED AUGUST 21, 1970, RECORDED SEPTEMBER 4, 1970 IN
BOOK D4823 PAGE 319, OFFICIAL RECORDS, AS TO LOTS 158 AND 190; AND AS
RESERVED BY XXXX X. XXXXXX AND XXXXX X. XXXXXX, HUSBAND AND WIFE, BY DEED
DATED DECEMBER 22, 1969, RECORDED FEBRUARY 2, 1970 IN BOOK D4622, PAGE 83,
OFFICIAL RECORDS, AS TO LOTS 159 AND 191; AND AS RESERVED BY XXXXXX X. XXXXXX
AND XXXXXXXX XXXXXX, HUSBAND AND WIFE, BY DEED DATED MAY 14, 1970; RECORDED
MAY 27, 1970 IN BOOK D4723 PAGE 922, OFFICIAL RECORDS, AS TO LOTS 160 AND
192; AND AS RESERVED BY XXXXX XXXXXX, A MARRIED WOMAN, BY DEED DATED MARCH
31, 1970 AND RECORDED APRIL 20, 1970 IN BOOK D4689 PAGE 599, OFFICIAL
RECORDS, AS TO LOTS 161 AND 193; AND AS RESERVED BY XXXXXXX X. XXXXXX AND
XXXXX X. XXXXXX, HUSBAND AND WIFE, BY DEED RECORDED FEBRUARY 2, 1970 IN BOOK
D4622 PAGE 112, OFFICIAL RECORDS, AS TO LOTS 162 AND 194; AND AS RESERVED BY
XXXXXXX X. XXXXXX, AND MARCIELLETTE X. XXXXXX, HUSBAND AND WIFE, BY DEED
DATED DECEMBER 19, 1969, RECORDED FEBRUARY 2, 1970 IN BOOK D4622 PAGE 113,
OFFICIAL RECORDS, AS TO LOTS 163 AND 195; AND AS RESERVED BY XXXXXX X.
XXXXXXX AND XXXXXXXX X. XXXXXXX, HUSBAND AND WIFE, IN DEED RECORDED FEBRUARY
28, 1969 IN BOOK D4292 PAGE 209, OFFICIAL RECORDS, AS TO LOTS 164 AND 196;
AND AS RESERVED BY XXXXXXX X. XXXXXX, A WIDOWER, BY DEED DATED DECEMBER 23,
1969, RECORDED FEBRUARY 2, 1970 IN BOOK D4622 PAGE 92, OFFICIAL RECORDS, AS
TO LOTS 165 AND 197; AND AS RESERVED BY XXXXX X. XXXXXX AND XXXX X. XXXXXX,
HUSBAND AND WIFE, BY DEED DATED MARCH 16, 1970, RECORDED MARCH 30, 1970 IN
BOOK D4670 PAGE 345, OFFICIAL RECORDS, AS TO LOTS 166 AND 198; AND AS
RESERVED BY XXXXX X. XXXXXXXX AND XXXXXXX X. XXXXXXXX, BY DEED DATED MARCH
20, 1970, RECORDED APRIL 16, 1970 IN BOOK D4687 PAGE 111, OFFICIAL RECORDS,
AS TO LOTS 167 AND 99; AND AS RESERVED BY XXXXX X. XXXXXX AND XXXXXXXX X.
XXXXXX, HUSBAND AND WIFE, BY DEED DATED DECEMBER 22, 1969, RECORDED FEBRUARY
2, 1970 IN BOOK D4622 PAGE 87, OFFICIAL RECORDS, AS TO LOTS 168 AND 200; AND
AS RESERVED BY XXXXXXX XXXXXXXXX, AN UNMARRIED WOMAN, BY DEED DATED DECEMBER
22, 1969, RECORDED FEBRUARY 2, 1970 IN BOOK D4622 PAGE 89, OFFICIAL RECORDS,
AS TO LOTS 169 AND 202; AND AS RESERVED BY XXXXXX X. XXXXXX AND XXXXXXX X.
XXXXXX, HUSBAND AND WIFE, BY DEED DATED MARCH 9, 1971, RECORDED APRIL 9, 1971
IN BOOK D5021 PAGE 510, OFFICIAL RECORDS, AS TO LOT 170; AND AS RESERVED BY
MONTE XXXX XXXXXXX AND XXXXXXX X. XXXXXXX, HUSBAND AND WIFE, BY DEED DATED
MARCH 9, 1971, RECORDED APRIL 9, 1971 IN BOOK D5021 PAGE 511, OFFICIAL
RECORDS, AS TO LOT 202; AND AS RESERVED BY XXXXXX XXXXXX AND XXXXX XXXXX
XXXXXX, HUSBAND AND WIFE, BY DEED DATED DECEMBER 22, 1969, RECORDED FEBRUARY
2, 1970 IN BOOK D4622 PAGE 88, OFFICIAL RECORDS, AS TO LOTS 171 AND 203; AND
AS RESERVED BY XXXXXX XXXXXX XXXX AND XXXXXX XXXXXX XXXX, HUSBAND AND WIFE,
BY DEED DATED MARCH 30, 1971, RECORDED APRIL 26, 1971 IN BOOK D5036 PAGE 999,
OFFICIAL RECORDS, AS TO LOTS 172 AND 204.
ALSO EXCEPTING FROM XXXX 000, 000, 000 XXX 206, ALL OIL, GAS, OR OTHER
HYDROCARBON SUBSTANCES LYING IN, UNDER AND WHICH MAY BE PRODUCED FROM A DEPTH
BELOW 500 FEET BELOW THE SURFACE OF SAID REAL PROPERTY (MEASURED VERTICALLY
FROM THE SURFACE THEREOF), PROVIDED, HOWEVER, NO RIGHT IS
Skyview Center, Los Angeles PAGE 25 OF 30
RESERVED TO THE GRANTOR, ITS SUCCESSORS AND ASSIGNS, BY REASON OF THIS
EXCEPTION OR RESERVATION, TO ENTER ON OR FROM THE SURFACE OF SAID PROPERTY, AS
RESERVED BY XXXXXX XXXXXX XXXX AND XXXXXX XXXXXX XXXX, HUSBAND AND WIFE, IN
DEED RECORDED SEPTEMBER 10, 1970 AS INSTRUMENT NO. 80, OFFICIAL RECORDS.
PARCEL 6:
THE FOLLOWING DESCRIBED EASEMENT AS RESERVED IN THE DEED TO PLAZA LA REINA
HOTEL VENTURE, A CALIFORNIA GENERAL PARTNERSHIP, DATED DECEMBER 5, 1980 AND
RECORDED DECEMBER 5, 1980 AS INSTRUMENT NO. 00-0000000; AND AS GRANTED IN THE
DEED TO PLAZA LA REINA OFFICE VENTURE, A CALIFORNIA GENERAL PARTNERSHIP,
DATED DECEMBER 5, 1980 AS INSTRUMENT NO. 00-0000000.
A NON-EXCLUSIVE EASEMENT AND RIGHT OF WAY TO CONSTRUCT AND MAINTAIN AND
OPERATE A PRIVATE SEWER WITH APPURTENANT STRUCTURES AND EQUIPMENT FOR THE
BENEFIT OF AND APPURTENANT TO AND TO SERVE PARCELS "B" AND "C" OF PARCEL MAP
L.A. NO. 4316, FILED IN BOOK 121 PAGE 46 OF PARCELS MAPS, LOS ANGELES COUNTY,
CALIFORNIA, OVER THE WESTERLY 20 FEET OF THE EASTERLY 165 FEET OF THE
NORTHERLY 70 FEET OF PARCEL "A" OF SAID PARCEL MAP; THE SOUTHERLY 20 FEET OF
THE NORTHERLY 70 FEET OF THE EASTERLY 165 FEET OF SAID PARCEL "A"; AND THE
SOUTHERLY 315 FEET OF THE NORTHERLY 365 FEET OF THE EASTERLY 20 FEET OF SAID
PARCEL "A"; TOGETHER WITH ALL NECESSARY OR CONVENIENT MEANS OF INGRESS AND
EGRESS FROM SAID LANDS AND PROPERTY FOR THE PURPOSE OF EXERCISING THE RIGHTS
HEREIN GRANTED.
Skyview Center, Los Angeles PAGE 26 OF 30
EXHIBIT A-15
LEGAL DESCRIPTION
PARCEL A:
PARCEL 2, IN THE CITY OF WESTLAKE VILLAGE, AS SHOWN ON PARCEL MAP NO. 14081,
AS PER MAP FILED IN BOOK 153 PAGES 19 AND 20 OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
EXCEPT ALL THE OIL, GAS, AND OTHER HYDROCARBON SUBSTANCES LYING BELOW A DEPTH
OF 500 FEET, MEASURED VERTICALLY, FROM THE SURFACE OF SAID LAND, WITHOUT,
HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF SAID LAND NOR INTO THAT
PORTION OF THE SURFACE THEREOF LYING ABOVE A DEPTH OF 500 FEET; MEASURED
VERTICALLY FROM SAID SURFACE, AS GRANTED TO AMERICAN-HAWAIIAN STREAMSHIP
COMPANY, BY DEED RECORDED APRIL 5, 1966 IN BOOK D3261 PAGE 937, OFFICIAL
RECORDS.
ALSO EXCEPT ANY AND ALL WATER, WATER RIGHTS AND PRIVILEGES, RIPARIAN RIGHTS
AND WATER EASEMENTS AND PROFITS BELONGING, OR IN ANY WAY APPURTENANT TO THE
DESCRIBED REAL PROPERTY.
PARCEL B:
A NON-EXCLUSIVE EASEMENT FOR PARKING, INGRESS AND EGRESS, PUBLIC UTILITIES,
PEDESTRIAN TRAFFIC AND OTHER PURPOSES OVER THAT PORTION OF PARCEL 1 OF PARCEL
MAP 14081, AS PER MAP FILED IN BOOK 153 PAGES 19 AND 20 OF PARCEL MAPS, AS
CREATED AND GRANTED PURSUANT TO THAT CERTAIN DOCUMENT ENTITLED "DECLARATION
REGARDING EASEMENTS AND COVENANTS" RECORDED DECEMBER 28, 1984 AS INSTRUMENT
NO. 00-0000000, SUBJECT UPON THE TERMS AND CONDITIONS CONTAINED THEREIN.
Westlake, Westlake Village PAGE 27 OF 30
EXHIBIT A-16
LEGAL DESCRIPTION
XXXX 00 XX 00 XXXXXXXXX XX XXXXX 00000, IN THE CITY OF LOS ANGELES, AS PER MAP
RECORDED IN BOOK 737 PAGES 33 TO 35 INCLUSIVE OF MAPS IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
Woodland Hills Financial Center, Woodland Hills
PAGE 28 OF 30
EXHIBIT A-17
LEGAL DESCRIPTION
A FEE, AS TO PARCEL A: AND
A LEASEHOLD ESTATE CREATED BY THAT CERTAIN UNRECORDED LEASE DATED FEBRUARY 21,
1992, EXECUTED BY ANAHEIM REDEVELOPMENT AGENCY, A PUBLIC BODY, CORPORATE AND
POLITIC, AS LESSOR, AND FIRST INTERSTATE MORTGAGE COMPANY, A CALIFORNIA
CORPORATION, AS LESSEE, FOR THE TERM, AND UPON THE TERMS, COVENANTS AND
CONDITIONS PROVIDED THEREIN, AS DISCLOSED BY A MEMORANDUM OF LEASE RECORDED
NOVEMBER 22, 1994 AS INSTRUMENT NO. 00-0000000 OF OFFICIAL RECORDS, AS TO
PARCEL B.
SAID LEASE WAS AMENDED BY FIRST AMENDMENT DATED NOVEMBER 15, 1994,
AS DISCLOSED BY SAID MEMORANDUM OF LEASE.
THE LESSEE'S INTEREST UNDER SAID LEASE HAS BEEN ASSIGNED TO 222
HARBOR ASSOCIATES, LLC., A NEVADA LIMITED LIABILITY COMPANY BY ASSIGNMENT WHICH
RECORDED NOVEMBER 22, 1994 AS INSTRUMENT NO. 94-675689 OF OFFICIAL RECORDS,
REFERENCE BEING HEREBY MADE TO THE RECORD THEREOF FOR FULL PARTICULARS.
: THE INTEREST OF 222 HARBOR ASSOCIATES, LLC., A NEVADA LIMITED
LIABILITY COMPANY HAS SINCE PASSED TO ARDEN REALTY LIMITED PARTNERSHIP, A
MARYLAND LIMITED PARTNERSHIP BY ARTICLES OF MERGER WHICH RECORDED OCTOBER 11,
1996 AS INSTRUMENT NO. 19960520238.
THE INTEREST OF LESSEE UNDER SAID LEASE HAS BEEN FURTHER ASSIGNED TO
ARDEN REALTY FINANCE PARTNERSHIP, L.P., A CALIFORNIA LIMITED PARTNERSHIP, BY
THAT CERTAIN ASSIGNMENT AND ASSUMPTION OF LEASE RECORDED IMMEDIATELY PRIOR
HERETO.
Anaheim City Centre, Anaheim
PAGE 29 OF 30
PARCEL A:
PARCEL 1 OF PARCEL MAP NO. 84-229, AS SHOWN ON A MAP FILED IN BOOK 194, PAGES
22 AND 23 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT ALL OIL, GAS AND MINERAL SUBSTANCES, TOGETHER WITH THE RIGHT TO EXPLORE
FOR AND EXTRACT SUCH SUBSTANCES, PROVIDED THAT THE SURFACE OPENING OF ANY
WELL, HOLE, SHAFT OR OTHER MEANS OF EXPLORING FOR, REACHING, OR EXTRACTING
SUCH SUBSTANCES SHALL NOT BE LOCATED WITHIN THE CITY OF ANAHEIM REDEVELOPMENT
PROJECT ALPHA, AS RECORDED IN BOOK 10812, PAGE 00 XX XXXXXX XXXXXX XXXXXXX,
XXXXX XX XXXXXXXXXX, AND SHALL NOT PENETRATE ANY PART OR PORTION OF SAID
PROJECT AREA WITHIN 500 FEET OF THE SURFACE THEREOF, BY INSTRUMENT NO.
86-530706, OFFICIAL RECORDS.
PARCEL B:
PARCEL 1 OF PARCEL MAP NO. 86-142, AS SHOWN ON A MAP FILED IN BOOK 232, PAGES
15 THROUGH 19 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
EXCEPTING AND RESERVING TO THE OWNERS THEREOF ALL OIL, GAS AND MINERAL
SUBSTANCES, TOGETHER WITH THE RIGHT TO EXPLORE FOR AND EXTRACT SUCH
SUBSTANCES, PROVIDED THAT THE SURFACE OPENING OF ANY WELL, HOLE, SHAFT, OR
OTHER MEANS OF EXPLORING FOR, REACHING OR EXTRACTING SUCH SUBSTANCES SHALL NOT
BE LOCATED WITHIN THE CITY OF ANAHEIM REDEVELOPMENT PROJECT ALPHA AS RECORDED
IN BOOK 10812, PAGE 00 XX XXXXXX XXXXXX XXXXXXX, XXXXX XX XXXXXXXXXX AND SHALL
NOT PENETRATE ANY PART OR PORTION OF SAID PROJECT AREA WITHIN 500 FEET OF THE
SURFACE THEREOF.
Anaheim City Centre, Anaheim
PAGE 30 OF 30
Exhibit B to Deed of Trust
DESCRIPTION OF BUILDINGS
1. 000 Xxxx Xxxxxxxx,
Xxxx Xxxxx XX
2. 00000 Xxxxx Xxxxxx Xxxxxxxxx,
Xxx Xxxxxxx, XX
3. 000 Xxxxxxxx Xxxxxxxxx,
Xxxxxxx, XX
4. 000 Xxxxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, XX
5. 000 Xxxx Xxxxxxxx,
Xxxxxxxx, XX
6. 0000 Xxxxx Xxxxxx,
Xxxxxxxxxx Xxxxx, XX
7. 0000 Xxxxxxxx (xxx Xxx Xxxxxxxx),
Xxx Xxxxxxx, XX
8. 00 Xxxxx Xxxx Xxxxxx,
Xxxxxxxx, XX
9. Xxxxxxx Atrium,
000 X. Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX
10. Bristol Plaza,
0000 Xxxxxxx Xxxxxxx
Xxxxxx Xxxx, XX
11. Burbank Executive Plaza
(000 Xxxx Xxxx Xxxxxxxxx and
000 Xxxxxxxx Xxxxxxxxx),
Xxxxxxx, XX
12. L.A. Corporate Center
(900, 1000, 1200 and
0000 Xxxxxxxxx Xxxxxx Xxxxx),
Xxxxxxxx Xxxx, XX
13. 00000 Xxxx Xxxxxxxx Xxxxxxx,
Xxxxxxx, XX
14. Skyview Center,
0000 X. Xxxxxxx Xxxxxxxxx,
0000 X. 00xx Xxxxxx
Xxx Xxxxxxx, XX
15. 0000 Xxxxxxx Xxxxxx Xxxxxxxxx,
Xxxxxxxx Xxxxxxx, XX
16. Woodland Hills Financial Center
(21021 and 00000 Xxxxxxx Xxxxxxxxx)
Xxxxxxxx Xxxxx, XX
17. 000 Xxxxx Xxxxxx Xxxxxxxxx,
Xxxxxxx, XX
EXHIBIT C
To be attached.
EXHIBIT D
EXHIBIT D
TO LOAN AGREEMENT
FORM OF TENANT ESTOPPEL CERTIFICATE AND AGREEMENT
Xxxxxx Brothers Realty Corporation
Three World Financial Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
RE: TENANT LEASE FOR _________________, CALIFORNIA, SUITE ________________
(THE "PREMISES") _____________________________________________________
Ladies and Gentlemen:
We understand that Xxxxxx Brothers Realty Corporation ("Lender") is
proposing to make a loan (the "Loan") to Arden Realty Finance Partnership,
L.P. (the "Finance Partnership"), an affiliate of Arden Realty Limited
Partnership, the current landlord under the Lease (as defined below), which
Loan will be secured by, among other things, a Deed of Trust, Assignment of
Rents and Leases, Security Agreement and Fixture Filing (the "Mortgage") and
an associated Assignment of Leases and Rents (the "Assignment") relating in
whole or in part to an office complex commonly known as
_[street address, but NO SUITE NUMBER]______, California (the "Property")
in which the undersigned is a tenant. Immediately prior to the closing of the
Loan, the Finance Partnership will acquire the Property from Arden Realty
Limited Partnership. We further understand that in connection with the Loan
it is necessary that Lender understand the precise nature of our tenancy and,
in order to so do, we hereby (i) agree with you as follows and (ii) warrant
and represent to you that, with respect to our lease, as amended (the
"Lease") and more particularly described in Schedule "A" attached hereto (the
"Schedule"), the following is true and correct:
1. The Lease constitutes the entire agreement between the
undersigned and the landlord thereunder with respect to the subject matter
thereof and the Lease has not been modified, amended or supplemented in any way
except by the amendments or other agreements described in the Schedule.
2. The summary of the basic terms of the Lease contained in the
Schedule is true and correct.
3. Except as provided in the Schedule, the undersigned has not
assigned, transferred or hypothecated the Lease or any interest therein or
entered into a sublease for any portion of the premises covered by the Lease and
no person or firm other than the undersigned or its employees is in possession
of such premises or any portion thereof.
4. The undersigned is not in default (or with the giving of notice
or the passage of time or both will not be in default) under the Lease and the
undersigned has no claim against, off-set, credit, defense, counterclaim or
deductions against the landlord thereunder or against any rent or other
sums due or payable under the Lease, and the landlord thereunder is not in
default (or with the giving of notice or the passage of time or both will not be
in default) under the Lease.
5. Except as set forth on the Schedule, the undersigned has no
option, right of first refusal or other right to purchase the Property or any
portion thereof or any interest therein or to lease additional space in the
Property or to extend the term of the Lease and the only interest of the
undersigned in the Property is that of a tenant pursuant to the terms of the
Lease.
6. The undersigned has not and does not engage in the generation,
storage or disposal of "Hazardous Materials" on the Property and, to the best of
the undersigned's knowledge, there are no Hazardous Materials located in, on,
under or in the vicinity of the Premises except for normal office supplies. The
undersigned agrees not to use, store, or permit the use, storage or release of
any Hazardous Materials on, under or about the Premises or the Property other
than what is permitted by applicable law, codes, regulations or restrictions and
used by the undersigned in accordance with applicable laws and in amounts as
dictated by the normal conduct of the undersigned's business. The term
"Hazardous Material" means any toxic or hazardous substance, material or wastes
which is or becomes regulated by any local government, the State of California,
the United States government or any agency or division thereof.
7. The undersigned is not the subject of any bankruptcy, insolvency,
debtor's relief, reorganization, receivership or other similar proceedings.
8. The person executing this Certificate hereby warrants and
represents that he or she has the power and authority to execute and deliver
this Certificate on behalf of the tenant named herein.
9. The undersigned as tenant hereby ratifies and confirms the Lease
and the tenancy created thereby and upon consummation of the acquisition by the
Finance Partnership, agrees to accept the Finance Partnership as the landlord
thereunder.
10. The undersigned agrees to notify you at the address set forth
above (or at such other address of which the undersigned may be advised by you
or your successors or assigns, as applicable) of any default on the part of
landlord under the Lease, and further agrees that notwithstanding any provisions
of the Lease, no notice, cancellation or termination thereof shall be effective
unless Lender shall have received such notice and have failed to cure or
commence to cure such default within a reasonable time following receipt of such
notice and the expiration of any cure period applicable thereto.
11. All conditions under the Lease to be performed by landlord as of
the date hereof (including, without limitation, all work to be performed by
landlord in the leased premises) have been satisfied, and, except as set forth
on the Schedule, all contributions, if any, required to be paid by landlord
under the Lease to date for improvements to the Premises have been paid. The
undersigned is in possession of the Premises and is fully obligated to perform
and is performing all of the other obligations of the undersigned under the
Lease.
12. So long as the Loan remains outstanding, the undersigned shall
not amend, modify or cancel the Lease, or consent to an amendment, modification
or cancellation of the Lease, or agree to subordinate the Lease to any other
mortgage, without Lender's prior written consent in each instance.
13. The undersigned agrees that, upon notice from Lender, the
undersigned will make all subsequent rental payments directly to or as directed
by Lender, it being understood and agreed that the payment of such rent to
Lender under the Assignment shall not be deemed to place control of the Premises
on Lender nor to render Lender liable for the obligations of the landlord under
the Lease. Notwithstanding the Assignment and any payment of rent which may be
made to Lender, Lender shall have no duty, liability or obligation under the
Lease either by virtue of the Assignment, the exercise thereof, or by any
subsequent action taken by Lender, until such time, if ever, as Lender shall
notify the undersigned in writing of Lender's election to assume the landlord's
obligation under the Lease, or upon acquisition of the Property by the Lender
following foreclosure in which event the purchaser at foreclosure shall be bound
by the Lease, but only so long as such purchaser is the owner of the Premises.
14. In the event Lender succeeds to the interest of the Finance
Partnership as landlord under the Lease, or if the Property or the Premises are
sold pursuant to the power of sale under the Mortgage or otherwise pursuant to
the exercise of remedies under the Mortgage, the undersigned shall attorn to
Lender, or a purchaser upon any such foreclosure sale, and shall recognize
Lender, or such purchaser, thereafter as the Landlord under the Lease. Such
attornment shall be effective and self-operative without the execution of any
further instrument. The undersigned agrees, however, to execute and deliver at
any time and from time to time, upon the request of any holder(s) of any of the
indebtedness or other obligations secured by the Mortgage, or upon request of
any such purchaser, any instrument or certificate which, in the reasonable
judgment of such holder(s), or such purchaser, may be necessary or appropriate
in any such foreclosure proceeding or otherwise to evidence such attornment.
We understand that you will, if you proceed with the making of the
Loan, rely on this Certificate. This Certificate may be relied upon by your
successors and assigns.
Very truly yours,
-----------------------------------
Name of Tenant
-----------------------------------
Signature
-----------------------------------
Date
SCHEDULE "A"
SUMMARY OF LEASE TERMS
(1) Name of Tenant:
-----------------------------------------------------------
(2) Lease Date:
---------------------------------------------------------------
(3) Amendment Dates, Separate Agreements, if any:
----------------------------
(4) Suite No.: ; Estimated Square Footage:
-------------- --------------------
(5) Lease Commencement Date: ; Expiration of Term:
---------- -----------------
(6) Option(s) to Extend:
-----------------------------------------------------
(7) Option(s) for Additional Space:
-------------------------------------------
(8) Monthly Base Rent: $ ;
-----------
Escalations/CAM Charges: $ ;
-----------
Total Monthly Rent: $ .
-----------
Date to which Rent last paid:
---------------------
(9) Tenant's Percentage Share of Increased Operating Costs: %
-------------
(10) Security Deposit: $ ; Prepaid Rent:
---------------- --------------------
(11) Assignees/Subtenants:
-------------------------------------------------
(12) Parking Spaces:
-------------------------------------------------------
(13) Lease Guarantor(s):
---------------------------------------------------
(14) Uncured Defaults by Landlord: None
-----------------------------------------
(15) Exclusive Uses:
-------------------------------------------------------
(16) Free Rent Months remaining after 6/01/97:
-----------------------------
(17) Tenant Improvements or other allowances due Tenant: $
-------------------
(18) Comments, if any:
-----------------------------------------------------
---------------------------------------------------------------------------
--------------------------------------------------
Name of Tenant
By:
----------------------------------------------
Date:
--------------------------------------------
EXHIBIT E
To be attached.
