Exhibit 10.62
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
XXXXXXXX & XXXXXX L.L.P.
0000 XXXXXXX XXXXXX, XXXXX 0000
XXXXXX, XXXXX 00000
ATTENTION: XXXXXX X. XXXXXX
DEED OF TRUST, SECURITY AGREEMENT
AND ASSIGNMENT OF RENTS
LOAN NO. 753820
A. THIS DEED OF TRUST (as the same may from time to time hereafter be
modified, supplemented or amended, this "DEED OF TRUST") is made as of January
30, 2004, by and between INLAND WESTERN LARKSPUR, L.L.C., a Delaware limited
liability company, having its principal place of business and post office
address at 0000 Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000, as "BORROWER"
("Borrower" to be construed as "Borrowers" if the context so requires), X. X.
XXXXXXXXXXX, whose address is 000 Xxxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000-0000, as
"TRUSTEE", and PRINCIPAL LIFE INSURANCE COMPANY, an Iowa corporation, having a
principal place of business and post office address c/o Principal Real Estate
Investors, LLC at 000 Xxxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000-0000, as "LENDER".
WITNESSETH:
B. Borrower is justly indebted to Lender for money borrowed (the "LOAN") in
the original principal sum of Thirty Three Million Six Hundred Thirty Thousand
and No/100 Dollars ($33,630,000.00) (the "LOAN AMOUNT") evidenced by Borrower's
secured promissory note of even date herewith, made payable and delivered to
Lender, (as may be modified, amended, supplemented, extended or consolidated in
writing and any note(s) issued in exchange therefor or replacement thereof) (the
"NOTE") in which Note Borrower promises to pay to Lender the Loan Amount,
together with all accrued and unpaid interest thereon, interest accrued at the
Default Rate (if any), Late Charges (if any), the Make Whole Premium (if any),
and all other obligations and liabilities due or to become due to Lender
pursuant to the Loan Documents and all other amounts, sums and expenses paid by
or payable to Lender pursuant to the Loan Documents and the Environmental
Indemnity (collectively the "INDEBTEDNESS") until the Indebtedness has been
paid, but in any event, the unpaid balance (if any) remaining due on the Note
shall be due and payable on February 1, 2009 or such earlier date resulting from
the acceleration of the Indebtedness by Lender (the "MATURITY DATE").
Capitalized terms used herein and not otherwise defined shall have those
meanings given to them in the other Loan Documents.
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C. NOW, THEREFORE, to secure the payment of the Indebtedness in accordance
with the terms and conditions of the Loan Documents, and all extensions,
modifications, and renewals thereof and the performance of the covenants and
agreements contained therein, and also to secure the payment of any and all
other Indebtedness, direct or contingent, that may now or hereafter become owing
from Borrower to Lender in connection with the Loan Documents, and in
consideration of the Loan Amount in hand paid, receipt of which is hereby
acknowledged, Borrower does by these presents irrevocably grant, transfer and
assign in trust with power of sale and right of entry and possession unto
Trustee, its successors and assigns forever, that certain real estate and all of
Borrower's estate, right, title and interest therein, located in the county of
Marin, state of California, more particularly described in EXHIBIT A attached
hereto and made a part hereof (the "LAND"), which Land, together with the
following described property, rights and interests, is collectively referred to
herein as the "PREMISES".
D. Together with Borrower's interest as lessor in and to all Leases and all
Rents, which are pledged primarily and on a parity with the Land and not
secondarily.
E. Together with all and singular the tenements, hereditaments, easements,
appurtenances, passages, waters, water courses, riparian rights, sewer rights,
rights in trade names, licenses, permits and contracts and all other rights,
liberties and privileges of any kind or character in any way now or hereafter
appertaining to the Land, including but not limited to, homestead and any other
claim at law or in equity as well as any after-acquired title, franchise or
license and the reversion and reversions and remainder and remainders thereof.
F. Together with the right in the case of foreclosure hereunder of the
encumbered property for Lender to take and use the name by which the buildings
and all other improvements situated on the Premises are commonly known and the
right to manage and operate the said buildings under any such name and variants
thereof.
G. Together with all right, title and interest of Borrower in any and all
buildings and improvements of every kind and description now or hereafter
erected or placed on the said Land and all materials intended for construction,
reconstruction, alteration and repairs of such buildings and improvements now or
hereafter erected thereon, all of which materials shall be deemed to be included
within the Premises immediately upon the delivery thereof to the Premises, and
all fixtures now or hereafter owned by Borrower and attached to or contained in
and used in connection with the Premises including, but not limited to, all
machinery, motors, elevators, fittings, radiators, awnings, shades, screens, and
all plumbing, heating, lighting, ventilating, refrigerating, incinerating,
air-conditioning and sprinkler equipment and fixtures and appurtenances thereto;
and all items of furniture, furnishings, equipment and personal property owned
by Borrower used or useful in the operation of the Premises; and all renewals or
replacements of all of the aforesaid property owned by Borrower or articles in
substitution therefor, whether or not the same are or shall be attached to said
buildings or improvements in any manner (collectively, the "IMPROVEMENTS"); it
being mutually agreed, intended and declared
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that all the aforesaid property owned by Borrower and placed by it on the Land
or used in connection with the operation or maintenance of the Premises shall,
so far as permitted by law, be deemed to form a part and parcel of the Land and
for the purpose of this Deed of Trust to be Land and covered by this Deed of
Trust, and as to any of the property aforesaid which does not form a part and
parcel of the Land or does not constitute a "fixture" (as such term is defined
in the Uniform Commercial Code) this Deed of Trust is hereby deemed to be, as
well, a security agreement under the Uniform Commercial Code for the purpose of
creating hereby a security interest in such property which Borrower hereby
grants to Lender as secured party. Borrower authorizes Lender at any time until
the Indebtedness is paid in full, to prepare and file any and all Uniform
Commercial Code financing statements, amendments, assignments, terminations and
the like, necessary to create and/or maintain a prior security interest in such
property all without Borrower's execution of the same.
H. Together with all right, title and interest of Borrower, now or hereafter
acquired, in and to any and all strips and gores of land adjacent to and used in
connection with the Premises and all right, title and interest of Borrower, now
owned or hereafter acquired, in, to, over and under the ways, streets, sidewalks
and alleys adjoining the Premises.
I. Together with all funds now or hereafter held by Lender under any escrow
security agreement or under any of the terms hereof, including but not limited
to funds held under the provisions of paragraph 5 hereof, insurance proceeds
from all insurance policies required to be maintained by Borrower under the Loan
Documents (subject to the balance of the terms contained in this Deed of Trust)
and all awards, decrees, proceeds, settlements or claims for damage now or
hereafter made to or for the benefit of Borrower by reason of any damage to,
destruction of or taking of the Premises or any part thereof, whether the same
shall be made by reason of the exercise of the right of eminent domain or by
condemnation or otherwise (a "TAKING").
J. TO HAVE AND TO HOLD the same unto Trustee, Trustee's successors and
assigns, upon the trusts, covenants and agreements herein expressed.
K. Borrower represents that it is the absolute owner in fee simple of the
Premises described in Exhibit A, which Premises are free and clear of any liens
or encumbrances except as set out in Exhibit B attached hereto, and except for
taxes which are not yet due or delinquent. Borrower shall forever warrant and
defend the title to the Premises against all claims and demands of all persons
whomsoever and will on demand execute any additional instrument which may be
required to give Trustee a valid first lien on all of the Premises, subject to
the "PERMITTED ENCUMBRANCES" set forth in Exhibit X.
X. Borrower further represents that (i) the Premises is not subject to any
casualty damage; (ii) Borrower has not received any written notice of any
eminent domain or condemnation proceeding affecting the Premises; and (iii) to
the best of Borrower's knowledge following due and diligent inquiry, there are
no actions, suits or proceedings pending, completed or threatened
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against or affecting Borrower or any person or entity owning an interest
(directly or indirectly) in Borrower ("INTEREST OWNER(S)") or any property of
Borrower or any Interest Owner in any court or before any arbitrator of any kind
or before or by any governmental authority (whether local, state, federal or
foreign) that, individually or in the aggregate, could reasonably be expected by
Lender to be material to the transaction contemplated hereby.
M. Borrower further represents and warrants that as of the date hereof and
until the Indebtedness is paid in full: (i) Borrower is not and will not be an
"employee benefit plan" as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), which is subject to Title I
of ERISA; (ii) the assets of Borrower do not and will not constitute "plan
assets" of one or more such plans for purposes of Title I of ERISA; (iii)
Borrower is not and all will not be a "governmental plan" within the meaning of
Section 3(32) of ERISA; (iv) transactions by or with Borrower are not and will
not be subject to state statutes applicable to Borrower regulating investments
of and fiduciary obligations with respect to governmental plans; (v) Borrower
has made and will continue to make all required contributions to all employee
benefit plans, if any, established for or on behalf of Borrower or to which
Borrower is required to contribute; (vi) Borrower has and will continue to
administer each such plan, if any, in accordance with its terms and the
applicable provisions of ERISA and any other federal or state law; and (vii)
Borrower has not and will not permit any liability under Sections 4201, 4243,
4062 or 4069 of Title IV of ERISA or taxes or penalties relating to any
employee benefit plan or multi-employer plan to become delinquent or assessed,
respectively, which would have a material adverse effect upon (i) the business
or the financial position or results of operation of Borrower, (ii) the ability
of Borrower to perform, or of Lender to enforce, any of the Loan Documents or
Environmental Indemnity or (iii) the value of the Premises.
BORROWER COVENANTS AND AGREES AS FOLLOWS:
1. Borrower shall
(a) pay each item of Indebtedness secured by this Deed of Trust when
due according to the terms of the Loan Documents;
(b) pay a Late Charge on any payment of principal, interest, Make
Whole Premium or Indebtedness which is not paid on or before the
due date thereof to cover the expense involved in handling such
late payment;
(c) pay on or before the due date thereof any indebtedness permitted
to be incurred by Borrower pursuant to the Loan Documents and any
other claims which could become a lien on the Premises (unless
otherwise specifically addressed in paragraph 1(e) hereof), and
upon request of Lender exhibit satisfactory evidence of the
discharge thereof;
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(d) complete within a reasonable time, the construction of any
Improvements now or at any time in process of construction upon
the Land which are required to be performed by Borrower;
(e) manage, operate and maintain the Premises and keep the Premises,
including but not limited to, the Improvements, in good condition
and repair and free from mechanics' liens or other liens or
claims for liens, provided however, that Borrower may in good
faith, with reasonable diligence and upon written Notice to
Lender within twenty (20) days after Borrower has knowledge of
such lien or claim, contest the validity or amount of any such
lien or claim and defer payment and discharge thereof during the
pendency of such contest in the manner provided by law, provided
that (i) such contest may be made without the payment thereof;
(ii) such contest shall prevent the sale or forfeiture of the
Premises or any part thereof, or any interest therein, to satisfy
such lien or claim; (iii) Borrower shall have obtained a bond
over such lien or claim from a bonding company acceptable to
Lender which has the effect of removing such lien or collection
of the claim or lien so contested; and (iv) Borrower shall pay
all costs and expenses incidental to such contest; and further
provided, that in the event of a final, non-appealable ruling or
adjudication adverse to Borrower and provided the court of
jurisdiction has not granted a stay of the enforcement of the
ruling or judgment, Borrower shall promptly pay such claim or
lien, shall indemnify and hold Lender and the Premises harmless
from any loss for damage arising from such contest and shall take
whatever action necessary to prevent sale, forfeiture or any
other loss or damage to the Premises or to the Lender;
(f) comply, and cause each lessee or other user of the Premises to
comply, with all requirements of law and ordinance, and all rules
and regulations, now or hereafter enacted, by authorities having
jurisdiction of the Premises and the use thereof, including but
not limited to all covenants, conditions and restrictions of
record pertaining to the Premises, the Improvements, and the use
thereof (collectively, "LEGAL REQUIREMENTS");
(g) subject to the provisions of paragraph 6 hereof, promptly repair,
restore or rebuild any Improvements now or hereafter a part of
the Premises which may become damaged or be destroyed by any
cause whatsoever, so that upon completion of the repair,
restoration and rebuilding of such Improvements, there will be no
liens of any nature arising out of the construction and the
Premises will be of substantially the same character and quality
as it was prior to the damage or destruction;
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(h) if other than a natural person, do all things necessary to
preserve and keep in full force and effect its existence,
franchises, rights and privileges under the laws of the state of
its formation and, if other than its state of formation, the
state where the Premises is located. Borrower shall notify Lender
at least thirty (30) days prior to (i) any relocation of
Borrower's principal place of business to a different state or
any change in Borrower's state of formation, and/or (ii) if
Borrower is an individual, any relocation of Borrower's principal
residence to a different state;
(i) do all things necessary to preserve and keep in full force and
effect Lender's title insurance coverage insuring the lien of
this Deed of Trust as a first and prior lien, subject only to the
Permitted Encumbrances stated in Exhibit B and any other
exceptions after the date of this Deed of Trust approved in
writing by Lender, including without limitation, delivering to
Lender not less than 30 days prior to the effective date of any
rate adjustment, modification or extension of the Note or any
other Loan Document, any new policy or endorsement which may be
reasonably required to assure Lender of such continuing coverage;
(j) execute any and all documents which may be required to perfect
the security interest granted by this Deed of Trust; and
(k) remain a Single-Purpose Entity.
2. Borrower shall not:
(a) except as required by applicable Legal Requirements, construct
any building or structure nor make any alteration or addition
(other than normal repair and maintenance) to (i) the roof or any
structural component of any Improvements on the Premises, or (ii)
the building operating systems, including but not limited to, the
mechanical, electrical, heating, cooling, or ventilation systems
(other than replacement with equal or better quality and
capacity), without the prior written consent of Lender not to be
unreasonably withheld;
(b) remove or demolish any material Improvements, or any portion
thereof, which at any time constitutes a part of the Premises.
Notwithstanding anything hereinabove to the contrary, Borrower
may construct, remove or demolish tenant improvements within the
then existing building(s) or other structures to the extent such
work is required solely under the terms of any Leases approved by
Lender provided (i) no Event of Default exists under the Loan
Documents; (ii) the work is
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completed on a timely basis, in a good, workmanlike, lien-free
manner and in accordance with all Legal Requirements, and (iii)
such work does not negatively affect the structural integrity of
the Improvements or the value of the Premises;
(c) cause or permit any change to be made in the general use of the
Premises without Lender's prior written consent;
(d) initiate any or acquiesce to a zoning reclassification or
material change in zoning without Lender's prior written consent.
Borrower shall use all reasonable efforts to contest any such
zoning reclassification or change;
(e) make or permit any use of the Premises that could with the
passage of time result in the creation of any right of use, or
any claim of adverse possession or easement on, to or against any
part of the Premises in favor of any person or entity or the
public;
(f) allow any of the following to occur (unless a Permitted
Transfer):
(i) a Transfer of all or any portion of the Premises or any
interest in the Premises;
(ii) a Transfer of any ownership interest in Borrower or any
entity which owns, directly or indirectly, an interest in
Borrower at any level of the ownership structure; or
(iii) in addition to (i) and (ii) above, if the Borrower is a
trust, or if a trust owns an interest, directly or
indirectly, in any entity which owns an interest in
Borrower at any level of the ownership structure, the
addition, deletion or substitution of a trustee of such
trust.
If any of such events occur, it shall be null and void and shall
constitute an Event of Default under the Loan Documents.
It is understood and agreed that the Indebtedness evidenced by
the Note is personal to Borrower and in accepting the same Lender
has relied upon what it perceived as the willingness and ability
of Borrower to perform its obligations under the Loan Documents
and the Environmental Indemnity and as lessor under the Leases of
the Premises. Furthermore, Lender may consent to a Transfer and
expressly waive Borrower's covenants contained in this paragraph
2(f), in writing to Borrower; however any such consent and waiver
shall not constitute any consent or waiver of such covenants as
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to any Transfer other than that for which the consent and waiver
was expressly granted. Furthermore, Lender's willingness to
consent to any Transfer and waive Borrower's covenants contained
in this paragraph 2(f), implies no standard of reasonableness in
determining whether or not such consent shall be granted and the
same may be based upon what Lender solely deems to be in its best
interest.
For purposes of the Loan Documents, the following terms shall
have the respective meanings set forth below:
"TRANSFER" or "TRANSFERRED" shall mean with respect to the
Premises, an interest in the Premises, or an ownership interest
or interest therein:
(i) a sale, assignment, transfer, conveyance or other
disposition (whether voluntary, involuntary or by
operation of law);
(ii) the creation, sufferance or granting of any lien,
encumbrance, security interest or collateral assignment
(whether voluntarily, involuntarily or by operation of
law), other than the lien hereof, the leases of the
Premises assigned to Lender, the Permitted Encumbrances,
the granting of a lien on a tenant's interest under any
Lease in accordance with the terms specifically set forth
therein, and those liens which Borrower is contesting in
accordance with the provisions of paragraph 1(e);
(iii) the issuance or other creation of ownership interests in
an entity;
(iv) the reconstitution or conversion from one entity to
another type of entity;
(v) a merger, consolidation, reorganization or any other
business combination; or
(vi) a conversion to or operation of all or any portion of the
Premises as a cooperative or condominium form of
ownership.
"PERMITTED TRANSFER" shall mean:
(i) a minor (as determined by Lender) conveyance of an
interest in the Premises by Borrower, such as a utility
easement, and for which Lender has given its prior
written consent and imposed such conditions as Lender
deems advisable and appropriate;
(ii) a sale, assignment, transfer or conveyance of all or any
portion of the Premises or an interest in the Premises
for which Borrower has complied with all of the Property
Transfer Requirements; or
(iii) any of the following Transfers for which Borrower has
complied with all of the Ownership Transfer Requirements
as applicable and Lender has given its prior written
consent (and in connection with
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such consent, Lender may impose any conditions it wishes
in its sole discretion);
(A) a sale, assignment, transfer, or conveyance of an
ownership interest or interest therein;
(B) the issuance or other creation of ownership
interests in an entity;
(C) a reconstitution or conversion from one entity to
another type of entity;
(D) a merger, consolidation, reorganization or any
other business combination;
(iv) with at least thirty (30) days advance written notice,
transfers of ownership interests in Borrower and entities
owning interests in Borrower between Inland Western
Retail Real Estate Trust, Inc., a Maryland corporation
("IWRRET"), and its wholly owned affiliates for which
Borrower has complied with all of the Specific Transfer
Requirements - 1;
(v) with at least thirty (30) days advance written notice,
transfers of ownership interests in Borrower and/or
shares in entities owning interests in Borrower to
Qualified New Members (hereinafter defined), for which
Borrower has complied with all of the Specific Transfer
Requirements - 2 (for purposes of this Permitted
Transfer, a "Qualified New Member" shall be defined as an
institutional investor or fund managed by an
institutional investor having assets of $100,000,000 or
more;
(vi) with at least thirty (30) days advance written notice,
transfers of direct or indirect ownership interests in
Borrower and entities owning interests in Borrower and
IWRRET, and its wholly owned affiliates to a Qualified
Successor) (hereinafter defined) and/or its wholly owned
affiliates for which Borrower has complied with all of
the Specific Transfer Requirements - 3 (for purposes of
this Permitted Transfer, a "Qualified Successor" shall be
defined as an entity with a tangible net worth of
$200,000,000 or more); a debt to equity ratio of 1.5 or
less; and management personnel experienced in the
ownership and management of retail properties similar to
the Premises; or
(vii) transfers of ownership interests in IWRRET.
"PROPERTY TRANSFER REQUIREMENTS" are all of the following:
1. Prior review and approval of the proposed purchaser or
other transferee and the subject transaction by Lender,
at Lender's sole
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discretion. Review of the proposed purchaser or other
transferee and the subject transaction shall encompass
various factors, including, but not limited to, the
proposed purchaser's or other transferee's
creditworthiness, financial strength, and real estate
management and leasing expertise as well as the proposed
transaction's effect on the Premises, the Borrower, and
other security for the Loan;
2. Payment to Lender of an assumption fee equal to the
greater of: (a) one half of one percent (0.5%) of the
principal balance of the Note; or (b) $15,000.00;
provided, however, that Lender will require $15,000.00 of
such fee to be paid at the beginning of Lender's review
process, and such sum shall be nonrefundable and earned
upon receipt by Lender whether or not the transaction is
ultimately completed or Lender ultimately approves the
proposed purchaser or other transferee;
3. Receipt, at Borrower's expense, of either (at Lender's
discretion) a new ALTA standard loan policy or an
endorsement updating the Lender's existing loan policy in
the full amount of the Loan, in form and by an issuer
satisfactory to Lender, and which insures this Deed of
Trust to be a first and prior lien subject only to those
exceptions which were previously approved by Lender and
provides coverage against usury and mechanic's liens;
4. Receipt by Lender of copies of all relevant information
and documentation relating to or required by Lender in
connection with the proposed transfer including but not
limited to (a) the organizational documents of the
proposed transferee and an opinion of counsel
satisfactory to Lender as to its due formation, valid
existence and authority to enter into and carry out the
proposed transaction as well as the proposed transferee's
compliance with its status as a Single Purpose Entity;
(b) the deeds or other instruments of transfer and
documents relating to the assignment and assumption of
Leases; (c) evidence of compliance with the insurance
requirements contained in the Loan Documents; and (d)
compliance with such other closing requirements as are
customarily imposed by Lender in connection with such
transactions;
5. Execution, delivery, acknowledgment and recordation, as
applicable, of new, revised and/or replacement assumption
agreements, loan modification agreements, indemnification
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agreements, escrow security or property reserves
agreements, security instruments, financing statements,
UCCs, new or revised letters of credit and/or guarantees
in form and substance satisfactory to Lender;
6. Payment of outside counsel fees and costs, other
applicable professional's fees and costs, taxes,
recording fees and the like, and any other fees and costs
incurred;
7. Receipt by Lender of 60 days advance written notice of
the proposed Transfer in question;
8. Receipt by Lender of a waiver from any tenant having a
right or option to purchase the Premises or any portion
thereof, waiving such right or option in form and
substance acceptable to Lender; and
9. At Lender's option, and if required by the procedures
promulgated by any rating agency(ies) associated with a
securitization transaction with respect to the Loan,
receipt by Lender of written evidence from such
agency(ies) to the effect that the proposed transfer will
not result in a re-qualification, reduction or withdrawal
of any rating in effect immediately prior to such
transfer issued in connection with the securitization
transaction.
"OWNERSHIP TRANSFER REQUIREMENTS" are all of the Property
Transfer Requirements which Lender deems appropriate in its
discretion, as well as a reasonable processing fee to be
determined by Lender; provided, however, that (i) with respect to
item 2 of the Property Transfer Requirements, the 0.5% component
of the fee shall be prorated (subject, however, to the $15,000
minimum) based on Lender's calculation of the effective
percentage interest in Borrower transferred, and (ii) item 3 of
the Property Transfer Requirements shall be required, at Lender's
discretion, only in the event of (A) a merger, consolidation,
reorganization or any other business combination, or (B) a
reconstitution or conversion from one entity to another type of
entity.
"SPECIFIC TRANSFER REQUIREMENTS - 1" are all of the following which
Borrower agrees to provide to Lender prior to each proposed transfer:
(i) a transfer fee of $2,000.00; (ii) all relevant documentation and
information related to the organization, authority, and validity of
the proposed ownership interest purchaser, transferee and the
transaction in general; (iii) all documents and instruments of
conveyance, transfer and assignment; (iv) at Lender's discretion, a
reaffirmation
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of the obligations of the Guarantor(s) under the Guaranty; and (v)
evidence of payment of all outside counsel fees, professional fees,
title insurance fees, if any, and any and all other fees, costs and
expenses related to the proposed transfer (provided that no assumption
or transfer fee other than the $2,000 fee stated in (i) above shall be
required).
"SPECIFIC TRANSFER REQUIREMENTS - 2" are all of the following which
Borrower agrees to provide to Lender prior to each proposed transfer:
IWRRET or a wholly owned affiliate thereof (i) (a) retains 51% or more
of the ownership interest in the Borrower, or (b) retains ownership of
20% to 50% of the ownership interest in the Borrower subject to
Lender's review and approval in each instance of the proposed
transferee and the subject transaction; Lender's review of the
proposed transferee and subject transaction shall encompass various
factors, including but not limited to, transferee's creditworthiness,
financial strength, and real estate management expertise, as well as
the proposed transaction's effect on the Premises, Borrower and the
other security for the Loan, and (ii) otherwise retains operational
and management control of Borrower as determined by Lender, and
further provided Borrower provides Lender each of the following items
prior to each proposed transfer: (a) a transfer fee equal to the
greater of $5,000.00 or the product of the percentage ownership
interest in Borrower to be transferred multiplied by one percent (1%)
of the outstanding principal balance of the Loan; (b) all relevant
documentation and information related to the organization, authority,
and validity of the proposed ownership interest purchaser, transferee
and the transaction in general; (c) all documents and instruments of
conveyance, transfer and assignment; (d) a reaffirmation of the
obligations of the Guarantor(s) under the Guaranty; and (e) evidence
of payment of all outside counsel fees, professional fees, title
insurance fees and any and all other fees, costs and expenses related
to the proposed transfer (provided that no assumption or transfer fee
other than the $5,000.00 fee stated in (a) above shall be required).
"SPECIFIC TRANSFER REQUIREMENTS - 3" are all of the following which
Borrower agrees to provide to Lender prior to each proposed transfer:
(i) said transfers are made to accommodate either the merger of IWRRET
with the Qualified Successor or the sale of a majority of IWRRET's
assets to the Qualified Successor; and (ii) the Qualified Successor
retains direct or indirect ownership of 51% or more of the ownership
interests in the Borrower and (iv) the Qualified Successor otherwise
retains operational and management control of Borrower as determined
by Lender, and further provided, Borrower provides Lender with each of
the following items prior to the proposed transfer: (a) a transfer fee
of $10,000.00; (b) all relevant documentation and information related
to the organization, authority, and validity of the proposed
ownership interest purchaser, transferee and the transaction in
general; (c) all documents and instruments of conveyance, transfer and
assignment; (d) a reaffirmation of the obligations of the Guarantor(s)
under the Guaranty or assumption thereof by an individual(s) or
entity(ies) acceptable to
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Lender in its sole discretion; and (e) evidence of payment of all
outside counsel fees, professional fees, title insurance fees and any
and all other fees, costs and expenses related to the proposed
transfer (provided that no assumption or transfer fee other than the
$10,000.00 fee stated in (a) above shall be required).
3 (a) Borrower shall pay or cause to be paid when due and before any
penalty attaches or interest accrues all general taxes, special
taxes, assessments (including assessments for benefits from
public works or improvements whenever begun or completed),
utility charges, water charges, sewer service charges, common
area maintenance charges, if any, vault or space charges and all
other like charges against or affecting the Premises or against
any property or equipment located on the Premises, or which might
become a lien on the Premises, and shall, within 10 days
following Lender's request, furnish to Lender a duplicate receipt
of such payment. If any such tax, assessment or charge may
legally be paid in installments, Borrower may, at its option, pay
such tax, assessment or charge in installments.
(b) If Borrower desires to contest any tax, assessment or charge
relating to the Premises, Borrower may do so by paying the same
in full, under protest, in the manner provided by law; provided,
however, that
(i) if contest of any tax, assessment or charge may be made
without the payment thereof, and
(ii) such contest shall have the effect of preventing the
collection of the tax, assessment or charge so contested
and the sale or forfeiture of the Premises or any part
thereof or any interest therein to satisfy the same,
then Borrower may in its discretion and upon the giving of
written notice to Lender of its intended action and upon the
furnishing to Lender of such security or bond as Lender may
require, contest any such tax, assessment or charge in good faith
and in the manner provided by law. All costs and expenses
incidental to such contest shall be paid by Borrower. In the
event of a ruling or adjudication adverse to Borrower, Borrower
shall promptly pay such tax, assessment or charge. Borrower shall
indemnify and save harmless the Lender and the Premises from any
loss or damage arising from any such contest and shall, if
necessary to prevent sale, forfeiture or any other loss or damage
to the Premises or to Lender, pay such tax, assessment or charge
or take whatever action is necessary to prevent any sale,
forfeiture or loss.
13
4 (a) Borrower shall at all times keep or cause to be kept in force (i)
property insurance insuring all Improvements which now are or
hereafter become a part of the Premises for perils covered by a
causes of loss-special form insurance policy, including coverage
against terrorism containing both replacement cost and agreed
amount endorsements or equivalent coverage; (ii) commercial
general liability insurance naming Lender as an additional
insured protecting Borrower and Lender against liability for
bodily injury or property damage occurring in, on or adjacent to
the Premises in commercially reasonable amounts; (iii) boiler and
machinery insurance if the property has a boiler or is an office
building; (iv) rental value insurance for the perils specified
herein for one hundred percent (100%) of the Rents (including
operating expenses, real estate taxes, assessments and insurance
costs which are lessee's liability) for a period of twelve (12)
months; (v) builders risk insurance during all periods of
construction; and (vi) insurance against all other hazards as may
be reasonably required by Lender, including, without limitation,
insurance against loss or damage by flood. Notwithstanding
anything herein above to the contrary, if neither: (i) property
insurance without an exclusion for terrorism, terrorist acts or
similar perils ("Terrorism") nor; (ii) a separate policy insuring
specifically against Terrorism is available at a cost which is in
Lender's opinion is commercially reasonable, taking into
consideration, among other things: (a) how properties similar in
type, size, quality and location are insured with respect to
Terrorism; and (b) the amount of coverage, premium and deductible
applicable to such insurance, then Lender agrees to waive the
requirement to provide insurance covering Terrorism until such
coverage again becomes available at a cost, which in Lender's
opinion is commercially reasonable.
(b) All insurance (including deductibles and exclusions) shall be in
form, content and amounts approved by Lender and written by an
insurance company or companies approved by Lender and rated A-,
class size VIII or better in the most current issue of Best's
Insurance Reports and which is licensed to do business in the
state in which the Premises are located or a governmental agency
or instrumentality approved by Lender. The policies for such
insurance shall have attached thereto standard mortgagee clauses
in favor of and permitting Lender to collect any and all proceeds
payable thereunder and shall include a 30 day (except for
nonpayment of premium, in which case, a 10 day) notice of
cancellation clause in favor of Lender. All certificates of
insurance (or policies if requested by Lender) shall be delivered
to and held by Lender as further security for the payment of the
Note and any other obligations arising under the Loan Documents,
with evidence of renewal coverage delivered to Lender at least 30
days before the expiration date of any policy. Borrower shall not
carry or permit to be
14
carried separate insurance, concurrent in kind or form and
contributing in the event of loss, with any insurance required in
the Loan Documents.
5 (a) Upon the occurrence of an Event of Default and upon request of
Lender, Borrower shall deposit with and pay to Lender, on the
Closing Date and/or on each payment date specified in the Note,
sums calculated by Lender for payment of the following as they
become due and payable: (i) the estimated taxes and assessments
assessed or levied against the Premises, and (ii) the estimated
premiums for insurance required by the Loan Documents, excluding
commercial general liability insurance. Lender shall use such
deposits to pay the taxes, assessments and premiums when the same
become due. Borrower shall procure and deliver to Lender, in
advance, statements for such charges. If the total payments made
by Borrower under this paragraph exceed the amount of payments
actually made by Lender for taxes, assessments and insurance
premiums, such excess shall be credited by Lender on subsequent
deposits to be made by Borrower. If, however, the deposits are
insufficient to pay the taxes, assessments and insurance premiums
when the same shall be due and payable, Borrower will pay to
Lender any amount necessary to make up the deficiency, five (5)
business days before the date when payment of such taxes,
assessments and insurance premiums shall be due. If at any time
Borrower shall tender to Lender, in accordance with the
provisions of the Note secured by this Deed of Trust, full
payment of the entire Indebtedness represented thereby, Lender
shall, in computing the amount of such Indebtedness, credit to
the account of Borrower any balance remaining in the funds
accumulated and held by Lender under the provisions of this
paragraph. If there is an Event of Default resulting in a public
sale of the Premises, or if Lender otherwise acquires the
Premises after an Event of Default, Lender shall apply, at the
time of commencement of such proceedings, or at the time the
Premises is otherwise acquired, the balance then remaining in the
funds accumulated under this paragraph as a credit toward any
delinquent or accrued taxes and then in such priority as Lender
elects to the other Indebtedness.
(b) Any funds held under this paragraph shall not constitute any
deposit or account of the Borrower or moneys to which the
Borrower is entitled upon demand, or upon the mere passage of
time, or sums to which Borrower is entitled to any interest or
crediting of interest by virtue of Lender's mere possession of
such deposits. Lender shall not be required to segregate such
deposits and may hold such deposits in its general account or any
other account and may commingle such deposits with any other
moneys of Lender or moneys which Lender is holding on behalf of
any other person or entity.
15
6. In the event of any damage to or destruction of the Premises, or any
part thereof:
(a) Borrower will immediately notify Lender thereof in the manner
provided in this Deed of Trust for the giving of notices. Lender
shall have the right (which may be waived by Lender in writing)
to settle and adjust any claim under such insurance policies
required to be maintained by Borrower. In all circumstances, the
proceeds thereof shall be paid to Lender and Lender is authorized
to collect and to give receipts therefor. Borrower agrees and
acknowledges that such proceeds shall be held by Lender without
any allowance of interest and that in any bankruptcy proceeding
of Borrower, all such proceeds shall be deemed to be "Cash
Collateral" as that term is defined in Section 363 of the
Bankruptcy Code. Provided that no Event of Default exists,
Borrower shall have the right to participate in any settlement or
adjustment; provided, however, that any settlement or adjustment
shall be subject to the written approval of Lender, not to be
unreasonably withheld.
(b) Such proceeds, after deducting therefrom any reasonable expenses
incurred by Lender in the collection thereof (including but not
limited to reasonable attorneys' fees and costs), shall be
applied by Lender to pay the Indebtedness secured hereby
including, but not limited to the Make Whole Premium, whether or
not then due and payable, provided, however, that if no Event of
Default exists at the time of such application, no Make Whole
Premium shall be due.
Notwithstanding anything hereinabove to the contrary,
(i) in the event the casualty occurs more than six (6) months
prior to the Maturity Date and no Event of Default
exists, Lender shall apply such proceeds as outlined
below; provided, further, that Lender's rights in this
subparagraph are subject to Borrower's rights to use such
proceeds for rebuilding and restoring the buildings and
improvements as may be required or permitted by law in
effect at the time of the loss.
(A) If the aggregate amount of such proceeds is less
than $250,000, Lender shall pay such proceeds
directly to Borrower, to be held in trust for
Lender and applied to the cost of rebuilding and
restoring the Premises.
(B) If the aggregate amount of such proceeds equals or
exceeds $250,000 Lender shall disburse such amounts
of the
16
proceeds as Lender reasonably deems necessary for
the repair or replacement of the Premises, subject
to the conditions set forth in paragraph 6(c)
below.
(ii) in the event (x) an Event of Default exists, or (y) the
casualty occurs during the last six (6) months prior to
the Maturity Date and Lender determines that the repair
and restoration of such casualty cannot be completed
prior to the Maturity Date, or (z) the conditions set
forth in paragraph 6(c) are not met, then Lender, in its
sole and absolute discretion may either:
(A) declare the entire Indebtedness to be immediately
due and payable, provided, however, that if no
Event of Default exists, no Make Whole Premium
shall be due. All proceeds shall be applied toward
payment of the Indebtedness in such priority as
Lender elects; or
(B) disburse such proceeds as Lender reasonably deems
necessary for the repair or replacement of the
Premises subject to those conditions set forth in
paragraph 6(c) which Lender in its sole and
absolute discretion may require.
(c) (i) In the event that Borrower is to be reimbursed out of the
insurance proceeds or out of any award or payment
received with respect to a Taking, Lender shall from time
to time make available such proceeds, subject to the
following conditions: (a) there continues to exist no
Event of Default; (b) the delivery to Lender of
satisfactory evidence of the estimated cost of completion
of such repair and restoration work and any architect's
certificates, waivers of lien, contractor's sworn
statements, and other evidence of cost and of payment and
of the continued priority of the lien hereof over any
potential liens of mechanics and materialmen (including,
without limitation, title policy endorsements) as Lender
may reasonably require and approve; (c) the time required
to complete the repair and restoration work and for the
income from the Premises to return to the level it was
prior to the loss will not exceed the coverage period of
the rental value insurance required hereunder; (d) the
annual net cash flow (annual net operating income after
deduction for tenant improvements, leasing commissions,
annual replacement reserves, and a management fee) shall
equal or exceed 1.5 times the annual debt service on the
Note. Only net operating income from approved executed
Leases in effect on the Premises, having at least three
(3) years remaining prior to the expiration of
17
their term, with no uncured defaults, shall be used in
Lender's determination of the annual net cash flow; (e)
Lender approves the plans and specifications of such work
before such work is commenced if the estimated cost of
rebuilding and restoration exceeds 25% of the
Indebtedness or involves any structural changes or
modifications. If said plans and specifications
substantially comply with those previously approved by
Lender, Lender's approval shall not be unreasonably
withheld; (f) if the amount of any insurance proceeds,
award or other payment is insufficient to cover the cost
of restoring and rebuilding the Premises, Borrower shall
pay such cost in excess of such proceeds, award or other
payment before being entitled to reimbursement out of
such funds; (g) Borrower pays to Lender a non-refundable
processing fee equal to the greater of $5,000.00 or .25%
of the amount of such proceeds within sixty (60) days of
the occurrence of any such damage or destruction and
before Lender disburses any proceeds; and (h) such other
conditions to such disbursements, in Lender's reasonable
discretion, as would be customarily required by a
construction lender doing business in the area where the
Premises is located or which are otherwise required by
any rating agency rating a securitization transaction
with respect to the Loan.
(ii) No payment made by Lender prior to the final completion
of the repair or restoration work shall, together with
all payments theretofore made, exceed 90% of the cost of
such work performed to the time of payment, and at all
times the undisbursed balance of said proceeds shall be
at least sufficient to pay for the cost of completion of
such work free and clear of all liens. Any proceeds
remaining after payment of the cost of rebuilding and
restoration shall, at the option of Lender, either be (a)
applied in reduction of the Indebtedness secured hereby,
provided, however, that if no Event of Default exists at
the time of such application, no Make Whole Premium shall
be due, or (b) paid to Borrower.
(iii) Repair and restoration of the Premises shall be commenced
promptly after the occurrence of the loss and shall be
prosecuted to completion diligently, and the Premises
shall be so restored and rebuilt to substantially the
same character and quality as prior to such damage and
destruction and shall comply with all Legal Requirements.
(d) Should such damage or destruction occur after foreclosure or sale
proceedings have been instituted, the proceeds of any such
insurance
18
policy or policies, if not applied in rebuilding or restoration
of the Improvements, shall be used to pay (i) the Indebtedness
then due and owing in the event of a non-judicial sale in such
priority as Lender elects, or (ii) the amount due in accordance
with any decree of foreclosure or deficiency judgment that may be
entered in connection with such proceedings, and the balance, if
any, shall be paid to the owner of the equity of redemption if it
shall then be entitled to the same, or otherwise as any court
having jurisdiction may direct.
7. In the event of the commencement of a Taking affecting the Premises:
(a) Borrower shall notify Lender thereof in the manner provided in
this Deed of Trust for the giving of notices. Lender may
participate in such proceeding, and Borrower shall deliver to
Lender all documents requested by it to permit such
participation.
(b) Borrower shall cause the proceeds of any award or other payment
made relating to a Taking, to be paid directly to Lender. Lender,
in its sole and absolute discretion: (i) may apply all such
proceeds to pay the Indebtedness in such priority as Lender
elects, provided however, that if no Event of Default exists at
the time of such application no Make Whole Premium shall be due;
or (ii) subject to and in accordance with the provisions set
forth in paragraph 6(c) above, may disburse such amounts of the
proceeds as Lender reasonably deems necessary for the repair or
replacement of the Premises.
Notwithstanding anything herein above to the contrary, provided no
Event of Default exists, Lender agrees to disburse the proceeds
received from any Inconsequential Taking, as hereinafter defined, to
Borrower for the repair and/or replacement of the Premises. An
Inconsequential Taking shall be a Taking which (i) results in less
than $250,000 in proceeds; (ii) does not, in Lender's determination,
materially or adversely affect the Improvements, parking, access,
ingress, egress or use of the Premises; and (iii) does not trigger any
rights or options of tenants under the Leases.
8. If by the laws of the United States of America or of any state or
governmental subdivision having jurisdiction over Borrower or of the
Premises or of the Loan evidenced by the Loan Documents or any
amendments or modifications thereof, any tax or fee is due or becomes
due or is imposed upon Lender in respect of the issuance of the Note
hereby secured or the making, recording and registration of this Deed
of Trust or otherwise in connection with the Loan Documents, the
Environmental Indemnity or the Loan, except for Lender's income or
franchise tax, Borrower covenants and agrees to pay such tax or fee in
the manner required
19
by such law and to hold harmless and indemnify Trustee and Lender,
their successors and assigns, against any liability incurred by reason
of the imposition of any such tax or fee.
9. (a) Upon the occurrence of any Event of Default, Lender may, but need
not, make any payment or perform any act herein required of
Borrower, in any form and manner deemed expedient and may, but
need not, make full or partial payments of principal or interest
on prior encumbrances, if any, and purchase, discharge,
compromise or settle any tax lien or other prior lien or title or
claim thereof, or redeem from any tax sale or forfeiture
affecting said Premises, or contest any tax or assessment. All
moneys paid for any of the purposes herein authorized and all
reasonable expenses paid or incurred in connection therewith,
including but not limited to, reasonable attorneys' fees and
costs and reasonable attorneys' fees and costs on appeal, and any
other money advanced by Lender to protect the Premises and the
lien hereof, shall be so much additional Indebtedness secured
hereby and shall become immediately due and payable without
notice and with interest thereon at the Default Rate from the
date of expenditure or advance until paid.
(b) In making any payment hereby authorized relating to taxes or
assessments or for the purchase, discharge, compromise or
settlement of any prior lien, Lender may make such payment
according to any xxxx, statement or estimate secured from the
appropriate public office without inquiry into the accuracy
thereof or into the validity of any tax, assessment, sale,
forfeiture, tax lien or title or claim thereof or without inquiry
as to the validity or amount of any claim for lien which may be
asserted.
10. If one or more of the following events (herein called an "EVENT OF
DEFAULT" or "EVENTS OF DEFAULT" as the context so requires) shall have
occurred:
(a) failure to pay when due any principal, interest, Make Whole
Premium or other Indebtedness, utilities, taxes or assessments or
insurance premiums required pursuant to the Loan Documents or the
Environmental Indemnity, and such failure shall have continued
for 5 days as to payment of any principal, interest or taxes or
assessments, or insurance premiums or for 5 days after written
notice specifying such default is given by Lender to Borrower as
to payment of any Make Whole Premium; or
(b) Borrower, Interest Owner or any guarantor voluntarily brings or
acquiesces to any of the following: (A) any action for
dissolution, act of dissolution or dissolution or the like of
Borrower, Interest Owner or any guarantor under the Federal
Bankruptcy Code as now or hereafter constituted; (B)
20
the filing of a petition or answer proposing the adjudication of
Borrower, Interest Owner or any guarantor as a bankrupt or its
reorganization or arrangement, or any composition, readjustment,
liquidation, dissolution or similar relief with respect to it
pursuant to any present or future federal or state bankruptcy or
similar law; or (C) the appointment by order of a court of
competent jurisdiction of a receiver, trustee or liquidator of
the Premises or any part thereof or of Borrower, Interest Owner
or any guarantor or of substantially all of the assets of
Borrower, Interest Owner or any guarantor; or
(c) one or more of the items set forth in paragraph 10(b) above occur
which were either not (i) voluntarily brought by Borrower,
Interest Owner or any guarantor or (ii) acquiesced in by
Borrower, Interest Owner or any guarantor, and which are not
discharged or dismissed within 90 days after the action, filing
or appointment, as the case may be; or
With respect to the matters in (b) and (c) above for an Interest
Owner only, no Event of Default shall occur until an interested
party or Interest Owner asserts a claim or right against Borrower
or the Premises which delays or otherwise affects Lender's
rights, remedies, or interests granted under the Loan Documents
(whether or not such assertion is successful).
(d) with respect to the matters not described in the other
subparagraphs of this paragraph 10, failure to duly observe or
perform any covenant, condition or agreement of the Borrower or
any guarantor contained in this Deed of Trust, the Guaranty, the
Note or the Assignment of Leases from Borrower to Lender or in
any other instrument or agreement which evidences or secures the
Loan (the "LOAN DOCUMENTS"), or in the Environmental Indemnity
and such failure shall have continued for 30 days after Notice
specifying such failure is given by Lender to Borrower; or
If any failure to observe or perform under (d) above shall be of
such nature that it cannot be cured or remedied within 30 days,
Borrower shall be entitled to a reasonable period of time to cure
or remedy such failure (not to exceed 90 days following the
giving of Notice), provided Borrower commences the cure or remedy
thereof within the 30 day period following the giving of Notice
and thereafter proceeds with diligence, as determined by Lender,
to complete such cure or remedy.
(e) the failure of Borrower to duly observe or perform any of the
covenants, conditions and agreements of the Borrower contained in
paragraph 2(f) of this Deed of Trust; or
21
(f) any representation when made by or on behalf of Borrower,
Interest Owner or any guarantor regarding the Premises, the
making or delivery of any of the Loan Documents or the
Environmental Indemnity or in any material written information
provided by or on behalf of Borrower, Interest Owner or any
guarantor in connection with the Loan shall prove to be untrue or
inaccurate in any material respect; or
(g) the failure of Borrower to give Notice to Lender within 90 days
after the death of any individual who is personally liable for
any obligation under the Loan Documents or the Environmental
Indemnity, as Borrower, indemnitor or guarantor, whether or not
such individual had executed the Note or this Deed of Trust; or
(h) subject to the provisions of paragraph 2(f), the failure of
Borrower to provide Lender with an assumption agreement in form
and substance and executed by a person(s) or entity(ies)
acceptable to Lender in its sole discretion to assume the
obligations of any deceased individual who is personally liable
for any obligation under the Loan Documents or the Environmental
Indemnity, as Borrower, indemnitor or guarantor, whether or not
such individual had executed the Note or this Deed of Trust, and
such failure shall have continued for 90 days after the death of
such individual; or
(i) the failure of Borrower to remain a Single-Purpose Entity;
then, in each and every such case, the whole of said principal sum
hereby secured shall, at the option of the Lender and without further
notice to Borrower, become immediately due and payable together with
accrued interest thereon, a Make Whole Premium calculated in
accordance with the provisions of the Loan Documents and all other
Indebtedness, and whether or not Lender has exercised said option,
interest shall accrue on the entire principal balance and any interest
or Make Whole Premium or other Indebtedness then due, at the Default
Rate until fully paid or if Lender has not exercised said option, for
the duration of any Event of Default. As used in this Deed of Trust,
"SINGLE PURPOSE ENTITY" means a corporation, limited or general
partnership, limited liability company, or business trust which, at
all times until the Indebtedness is paid in full (i) will be organized
solely for the purpose of owning the Premises, (ii) will not engage in
any business unrelated to the ownership of the Premises, (iii) will
not have any assets other than those related to the Premises, (iv)
will not engage in, seek or consent to any dissolution, winding up,
liquidation, consolidation or merger, and, except as otherwise
expressly permitted by the Loan Documents, will not engage in, seek or
consent to any asset sale, transfer of partnership, membership,
shareholder, beneficial interests, or amendment of its limited
partnership agreement, articles of
22
incorporation, articles of organization, certificate of formation,
operating agreement, trust agreement, or trust certificate (as
applicable), (v) will not fail to correct any known misunderstanding
regarding the separate identity of such Entity, (vi) without the
unanimous consent of all of the partners, directors, members,
beneficial owners and trustees, as applicable, will not with respect
to itself or to any other Entity in which it has a direct or indirect
legal or beneficial ownership interest (a) file a bankruptcy,
insolvency or reorganization petition or otherwise institute
insolvency proceedings or otherwise seek any relief under any laws
relating to the relief from debts or the protection of debtors
generally; (b) seek or consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator, custodian or any similar
official for such Entity or all or any portion of such Entity's
properties; (c) make any assignment for the benefit of such Entity's
creditors; or (d) take any action that might cause such Entity to
become insolvent, (vii) will maintain its accounts, books and records
separate from any other person or Entity, (viii) will maintain its
books, records, resolutions and agreements as official records, (ix)
has not commingled and will not commingle its funds or assets with
those of any other person or Entity, (x) has held and will hold its
assets in its own name, (xi) will conduct its business in its name,
(xii) will maintain its financial statements, accounting records and
other Entity documents separate from any other person or Entity,
(xiii) will pay its own liabilities out of its own funds and assets,
(xiv) will observe all corporate, limited liability company and
partnership formalities, as applicable, (xv) has maintained and will
maintain an arms-length relationship with its Affiliates, (xvi) if
such Entity owns the Premises, will have no indebtedness other than
the Indebtedness and commercially reasonable unsecured trade payables
in the ordinary course of business relating to the ownership and
operation of the Premises which are paid within sixty (60) days of the
date incurred, (xvii) will not assume or guarantee or become obligated
for the debts of any other person or Entity or hold out its credit as
being available to satisfy the obligations of any other person or
Entity, except for the Indebtedness, (xviii) will not acquire
obligations or securities of its partners, members, trustees,
beneficial owners or shareholders, (xix) will allocate fairly and
reasonably shared expenses, including, without limitation, shared
office space and uses separate stationery, invoices and checks, (xx)
will not pledge its assets for the benefit of any other person or
Entity, (xxi) will hold itself out and identify itself as a separate
and distinct Entity under its own name and not as a division or part
of any other person or Entity, (xxii) will not make loans to any
person or Entity, (xxiii) will not identify its partners, members,
shareholders, trustees, beneficiaries or any Affiliates of any of them
as a division or part of it, (xxiv) will not enter into or be a party
to, any transaction with its partners, members, shareholders,
beneficiaries, trustees or its Affiliates except in the ordinary
course of its business and on terms which are intrinsically fair and
are no less favorable to it than would be obtained in a comparable
arms-length transaction with an unrelated third party, (xxv) will pay
the salaries of its own
23
employees from its own funds, (xxvi) will maintain adequate capital in
light of its contemplated business operations, (xxvii) if such Entity
is a limited liability company, limited partnership, or business trust
then such Entity shall continue (and not dissolve) for so long as a
solvent managing member, general partner, or trustee, as applicable,
exists and such Entity's organizational documents shall contain such
provision.
11. Borrower agrees that if Lender accelerates the whole or any part of
the principal sum hereby secured after the occurrence of an Event of
Default, or applies any proceeds pursuant to the provisions hereof,
Borrower waives any right to prepay the principal sum hereby secured
in whole or in part without premium and agrees to pay, as yield
maintenance protection and not as a penalty, a "MAKE WHOLE PREMIUM".
However, in the event any proceeds from a casualty or Taking of the
Premises are applied to reduce the principal balance under the Note,
no Make Whole Premium shall be due so long as no Event of Default
exists at the time of such application. The Make Whole Premium shall
be the greater of one percent (1%) of the principal amount to be
prepaid or a premium calculated as follows:
(a) Determine the "REINVESTMENT YIELD." The
Reinvestment Yield will be equal to the yield on the U.S. Treasury
Issue ("PRIMARY ISSUE")* published one week prior to the date of
prepayment and converted to an equivalent monthly compounded nominal
yield.
*At this time there is not a U.S. Treasury Issue for this prepayment
period. At the time of prepayment, Lender shall select in its sole and
absolute discretion a U.S. Treasury Issue with similar remaining time
to the Maturity Date.
(b) Calculate the "PRESENT VALUE OF THE LOAN." The Present Value of
the Loan is the present value of the payments to be made in
accordance with the Note (all installment payments and any
remaining payment due on the Maturity Date) discounted at the
Reinvestment Yield for the number of months remaining from the
date of prepayment to the Maturity Date. In the event of a
partial prepayment as a result of the aforementioned application
of proceeds, the Present Value of the Loan shall be calculated in
accordance with the preceding sentence multiplied by the fraction
which results from dividing the amount of the prepaid proceeds by
the principal balance immediately prior to prepayment.
(c) Subtract the amount of the prepaid proceeds from the Present
Value of the Loan as of the date of prepayment. Any resulting
positive differential shall be the premium.
24
Notwithstanding anything herein to the contrary, during the last 90
days prior to the Maturity Date, the Make Whole Premium shall not be
subject to the one percent (1%) minimum and shall be calculated only
as provided in (a) through (c) above.
12. (a) Upon the occurrence of any Event of Default, in addition to any
other rights or remedies provided in the Loan Documents, at law,
in equity or otherwise, Lender shall have the right to cause the
Premises or any part thereof to be sold in order to accomplish
the object of these trusts and upon demand by Lender, Trustee,
without demand on Borrower, shall sell the Premises to accomplish
the objects of these trusts having first given notice of the time
and place of such sale as required by law for the sale of real
property upon execution.
(b) Trustee may postpone such sale from time to time by giving notice
of such postponement in the same manner in which any original
notice of sale was given or by an announcement or proclamation
made to the persons assembled at the time and place previously
appointed and noticed for such sale or postponed sale, and on the
date of such sale or the date to which such sale may have been
postponed Trustee may sell the Premises to the highest bidder.
Lender or its agents may bid and purchase at such sale. Trustee
in conducting said sale may act either in person or through the
agency of an auctioneer and may establish as one of the
conditions of such sale that all bids and payments for said
Premises be made in cash.
13. Upon such sale, Trustee shall make, execute, and after due payment is
made, deliver to the purchaser or purchasers a deed or deeds for the
Premises or part thereof sold and shall apply the proceeds of the
sale, at the election of Lender first, to all of the expenses of such
sale including the reasonable expenses of this trust or the Trustee
and the fees and costs of any attorneys for this trust, environmental
audits, the Trustee or Lender, all of which shall accrue and become
due from and after any Event of Default, together with any sums which
Trustee or Lender shall have paid for procuring any abstract,
certificate or report of title to the Premises and, second, to
principal, interest and any other Indebtedness and all other sums or
amounts due under the Note or agreed or provided to be paid by
Borrower herein or in any other Loan Documents, all in such order as
Lender may determine. The remainder of such proceeds, if any, shall be
paid to Borrower or Borrower's successors or assigns, as their rights
may appear.
14. In the event of such a sale of the Premises or any part thereof and
the execution of a deed or deeds therefor under these trusts, any
recital therein of the occurrence of an Event of Default or of the
giving or recording of any notice or demand by Trustee or Lender
regarding such sale shall be conclusive proof thereof, and the
25
receipt of the purchase money recited therein shall fully discharge
the purchaser from any obligation for the proper application of the
proceeds of sale in accordance with these trusts.
15. Following the occurrence of an Event of Default, unless the same has
been specifically waived in writing, Borrower shall forthwith upon
demand of Trustee or Lender surrender to Lender possession of the
Premises, and Lender shall be entitled to take actual possession of
the Premises or any part thereof personally or by its agents or
attorneys, and Lender in its discretion may, with or without force and
with or without process of law, enter upon and take and maintain
possession of all or any part of the Premises together with all
documents, books, records, papers and accounts of the Borrower or the
then owner of the Premises relating thereto, and may exclude Borrower,
its agents or assigns wholly therefrom, and may as attorney-in-fact or
agent of the Borrower, or in its own name as Lender and under the
powers herein granted:
(a) hold, operate, maintain, repair, rebuild, replace, alter,
improve, manage or control the Premises as it deems judicious,
insure and reinsure the same and any risks related to Lender's
possession, operation and management thereof and receive all
Rents, either personally or by its agents, and with full power to
use such measures, legal or equitable, as in its discretion it
deems proper or necessary to enforce the payment or security of
the Rents, including actions for the recovery of Rent, actions in
forcible detainer and actions in distress for Rents, hereby
granting full power and authority to exercise each and every of
the rights, privileges and powers herein granted at any and all
times hereafter, without notice to Borrower; and
(b) conduct leasing activity pursuant to the provisions of the
Assignment of Leases.
Neither Trustee nor Lender shall be obligated to perform or discharge,
nor does either hereby undertake to perform or discharge, any
obligation, duty or liability under any Lease. Except to the extent
that the same is caused solely by Lender's gross negligence or willful
misconduct, should Trustee or Lender incur any liability, loss or
damage under any Leases, or under or by reason of the Assignment of
Leases, or in the defense of any claims or demands whatsoever which
may be asserted against Lender or Trustee by reason of any alleged
obligations or undertakings on its part to perform or discharge any of
the terms, covenants or agreements in any Lease, the amount thereof,
including costs, expenses and reasonable attorneys' fees and costs,
including reasonable attorneys' fees and costs on appeal, shall be
added to the Indebtedness and secured hereby.
26
16. Upon the occurrence of an Event of Default, Trustee and Lender in the
exercise of the rights and powers conferred upon them shall have the
full power to use and apply the Rents, less costs and expenses of
collection to the payment of or on account of the items listed in (a)
- (c) below, at the election of Lender and in such order as Lender may
determine as follows:
(a) to the payment of (i) the expenses of operating and maintaining
the Premises, including, but not limited to the cost of
management, leasing (which shall include reasonable compensation
to Trustee, Lender and their respective agent or agents if
management and/or leasing is delegated to an agent or agents),
repairing, rebuilding, replacing, altering and improving the
Premises, (ii) premiums on insurance as hereinabove authorized,
(iii) taxes and special assessments now due or which may
hereafter become due on the Premises, and (iv) expenses of
placing the Premises in such condition as will, in the sole
judgment of Lender, make it readily rentable;
(b) to the payment of any principal, interest or any other
Indebtedness secured hereby or any deficiency which may result
from any foreclosure sale;
(c) to the payment of established claims for damages, if any,
reasonable attorneys' fees and costs and reasonable attorneys'
fees and costs on appeal.
The manner of the application of Rents, the reasonableness of the
costs and charges to which such Rents are applied and the item or
items which shall be credited thereby shall be within the sole and
unlimited discretion of Lender. To the extent that the costs and
expenses in (a) and (c) above exceed the amounts collected, the excess
shall be added to the Indebtedness and secured hereby.
17. Upon the occurrence of any Event of Default, unless the same has been
specifically waived in writing, Lender may apply to any court having
jurisdiction for the appointment of a receiver of the Premises. Such
appointment may be made either before or after sale, without notice,
without regard to the solvency or insolvency of Borrower at the time
of application for such receiver and without regard to the then value
of the Premises or the adequacy of Lender's security. Lender may be
appointed as such receiver. The receiver shall have power to collect
the Rents during the pendency of any foreclosure proceedings and, in
case of a sale, during the full statutory period of redemption, if
any, as well as during any further times when Borrower, except for the
intervention of such receiver, would be entitled to collect such
Rents. In addition, the receiver shall have all other powers which
shall be necessary or are usual in such cases for the protection,
possession, control, management and operation of the Premises during
the whole of said period. The court from time to time may authorize
the receiver
27
to apply the net income in its possession at Lender's election and in
such order as Lender may determine in payment in full or in part of
those items listed in paragraph 16.
18. (a) Borrower agrees that all reasonable costs, charges and expenses,
including but not limited to, reasonable attorneys' fees and
costs, incurred or expended by Trustee or Lender arising out of
or in connection with any action, proceeding or hearing, legal,
equitable or quasi-legal, including the preparation therefor and
any appeal therefrom, in any way affecting or pertaining to the
Loan Documents, the Environmental Indemnity, or the Premises,
shall be promptly paid by Borrower. All such sums not promptly
paid by Borrower shall be added to the Indebtedness secured
hereby and shall bear interest at the Default Rate from the date
of such advance and shall be due and payable on demand.
(b) Borrower hereby agrees that upon the occurrence of an Event of
Default and the acceleration of the principal sum secured hereby
pursuant to this Deed of Trust, to the full extent that such
rights can be lawfully waived, Borrower hereby waives and agrees
not to insist upon, plead, or in any manner take advantage of,
any notice of acceleration, any stay, extension, exemption,
homestead, marshaling or moratorium law or any law providing for
the valuation or appraisement of all or any part of the Premises
prior to any sale or sales thereof under any provision of this
Deed of Trust or before or after any decree, judgment or order of
any court or confirmation thereof, or claim or exercise any right
to redeem all or any part of the Premises so sold and hereby
expressly waives to the full extent permitted by applicable law
on behalf of itself and each and every person or entity acquiring
any right, title or interest in or to all or any part of the
Premises, all benefit and advantage of any such laws which would
otherwise be available to Borrower or any such person or entity,
and agrees that neither Borrower nor any such person or entity
will invoke or utilize any such law to otherwise hinder, delay or
impede the exercise of any remedy granted or delegated to Lender
herein but will permit the exercise of such remedy as though any
such laws had not been enacted. Borrower hereby further expressly
waives to the full extent permitted by applicable law on behalf
of itself and each and every person or entity acquiring any
right, title or interest in or to all or any part of the Premises
any and all rights of redemption from any sale or any order or
decree of foreclosure obtained pursuant to provisions of this
Deed of Trust.
19. In accordance with and subject to the terms and conditions of the
Assignment of Leases, Borrower hereby assigns to Lender directly and
absolutely, and not merely collaterally, the interest of Borrower as
lessor under the Leases of the Premises
28
and the Rents payable under any Lease and/or with respect to the use
of the Premises, or portion thereof, including any oil, gas or mineral
lease, or any installments of money payable pursuant to any agreement
or any sale of the Premises or any part thereof, subject only to a
license, if any, granted by Lender to Borrower with respect thereto
prior to the occurrence of an Event of Default. Borrower has executed
and delivered the Assignment of Leases which grants to Lender specific
rights and remedies in respect of said Leases and governs the
collection of Rents thereunder and from the use of the Premises, and
such rights and remedies so granted shall be cumulative of those
granted herein.
The collection of such Rents and the application thereof as aforesaid
shall not cure or waive any Event of Default or notice of default
hereunder or invalidate any act done pursuant to such notice, except
to the extent any such Event of Default is fully cured. Failure or
discontinuance of Lender at any time, or from time to time, to collect
any such moneys shall not impair in any manner the subsequent
enforcement by Lender of the right, power and authority herein
conferred on Lender. Nothing contained herein, including the exercise
of any right, power or authority herein granted to Lender, shall be,
or be construed to be, an affirmation by Lender of any tenancy, Lease
or option, or an assumption of liability under, or the subordination
of the lien or charge of this Deed of Trust to any such tenancy, Lease
or option. Borrower hereby agrees that, in the event Lender exercises
its rights as provided for in this paragraph or in the Assignment of
Leases, Borrower waives any right to compensation for the use of
Borrower's furniture, furnishings or equipment in the Premises for the
period such assignment of rents or receivership is in effect, it being
understood that the Rents derived from the use of any such items shall
be applied to Borrower's obligations hereunder as above provided.
20. All rights and remedies granted to Trustee or Lender in the Loan
Documents shall be in addition to and not in limitation of any rights
and remedies to which it is entitled in equity, at law or by statute,
and the invalidity of any right or remedy herein provided by reason of
its conflict with applicable law or statute shall not affect any other
valid right or remedy afforded to Trustee or Lender. No waiver of any
default or Event of Default under any of the Loan Documents shall at
any time thereafter be held to be a waiver of any rights of the
Trustee or Lender hereunder, nor shall any waiver of a prior Event of
Default or default operate to waive any subsequent Event of Default or
default. All remedies provided for in the Loan Documents are
cumulative and may, at the election of Lender, be exercised
alternatively, successively or concurrently. No act of Trustee or
Lender shall be construed as an election to proceed under any one
provision herein to the exclusion of any other provision or to proceed
against one portion of the Premises to the exclusion of any other
portion. Time is of the essence under this Deed of Trust and the Loan
Documents.
29
21. By accepting payment of any sum secured hereby after its due date,
Lender does not waive its right either to require prompt payment when
due of all other sums or installments so secured or to declare a
default for failure to pay such other sums or installments.
22. The usury provisions of paragraph 6 of the Note and the limitation of
recourse liability provisions of paragraph 9 of the Note are fully
incorporated herein by reference as if the same were specifically
stated here.
23. In the event one or more provisions of the Loan Documents shall be
held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provision hereof, and the Loan Documents shall be construed as if any
such provision had never been contained herein.
24. If the payment of the Indebtedness secured hereby or of any part
thereof shall be extended or varied, or if any part of the security be
released, all persons now or at any time hereafter liable therefor, or
interested in said Premises, shall be held to assent to such
extension, variation or release, and their liability and the lien and
all provisions hereof shall continue in full force, the right of
recourse against all such persons being expressly reserved by Lender
notwithstanding such variation or release.
25. Upon payment in full of the principal sum, interest and other
Indebtedness secured by the Loan Documents, these presents shall be
null and void, and Trustee shall release this Deed of Trust and the
lien hereof by proper instrument executed in recordable form.
26. (a) Borrower hereby grants to Lender and its respective agents,
attorneys, employees, consultants, contractors and assigns an
irrevocable license and authorization to enter upon and inspect
the Premises and all facilities located thereon at reasonable
times, subject to the inspection rights provisions afforded to
Borrower under the Leases. Lender shall make reasonable efforts
to ensure that the operations of the tenants are not disrupted.
(b) In connection with any sale or conveyance of this Deed of
Trust, Borrower grants to Lender and its respective agents,
attorneys, employees, consultants, contractors and assigns an
irrevocable license and authorization to conduct, at Lender's
expense, a Phase I environmental audit of the Premises, subject
to the inspection rights provisions afforded to Borrower under
the Leases.
30
(c) In the event there has been an Event of Default or in the event
Lender has formed a reasonable belief, based on its inspection
of the Premises or other factors known to it, that Hazardous
Materials may be present on the Premises, then Borrower grants
to Lender and its respective agents, attorneys, employees,
consultants, contractors and assigns an irrevocable license and
authorization to conduct, at Borrower's expense using ATC
Associates, Inc. or the firm of Borrower's choice, subject to
Lender's reasonable approval, environmental tests of the
Premises, including without limitation, a Phase I environmental
audit, subsurface testing, soil and ground water testing, and
other tests which may physically invade the Premises or
facilities (the "TESTS"). The scope of the Tests shall be such
as Lender, in its sole discretion, determines is necessary to
(i) investigate the condition of the Premises, (ii) protect the
security interests created under this Deed of Trust, or (iii)
determine compliance with Environmental Laws, the provisions of
the Loan Documents and the Environmental Indemnity and other
matters relating thereto. Lender shall make reasonable efforts
to ensure that the operations of the tenants are not disrupted.
(d) Provided no Event of Default has occurred, Lender will provide
Borrower with reasonable notice of Lender's intent to enter,
inspect and conduct the Tests provided for in this paragraph.
In addition, Lender shall conduct such inspections and Tests
during normal business hours and use reasonable efforts to
minimize disruption of the lessees' business operations.
The foregoing licenses and authorizations are intended to be a
means of protection of Lender's security interest in the
Premises and not as participation in the management of the
Premises.
27. Within 15 days after any written request by any party to this Deed of
Trust, the requested party shall certify, by a written statement duly
acknowledged, the amount of principal, interest and other Indebtedness
then owing on the Note, the terms of payment, Maturity Date and the
date to which interest has been paid. Borrower shall further certify
whether any defaults, offsets or defenses exist against the
Indebtedness secured hereby. Borrower shall also furnish to Lender,
within 30 days of its request therefor, tenant estoppel letters from
such tenants of the Premises as Lender may reasonably require; which
Lender shall not request more than one (1) time per annum.
28. (a) Borrower shall furnish to Lender within 90 days after the
end of each fiscal year of Borrower, a detailed and analytical
financial report prepared in accordance
31
with generally accepted accounting principles consistently
applied, certified in a manner and otherwise in form acceptable
to Lender covering the full and complete operation of the
Premises, including without limitation: (i) income and expense
statements, and (ii) a report of the leasing status of the
Premises as of the end of such period, identifying the lessee,
square footage leased, rental amount, base rental increases,
rental concessions and/or rental deferments, if any, and
commencement and expiration dates under each Lease of the
Premises and a listing of sales volumes attained by lessees of
the Premises under percentage leases for the immediately
preceding year, and (iii) within 15 days after written request
by Lender, an aged accounts receivable report and an annual
budget. Such reports shall be prepared by an accountant who may
be an employee of Borrower, or of an affiliate of Borrower,
acceptable to Lender. In addition to the reports referred to
herein, Borrower shall promptly supply any additional
information or records relating to the Premises or its
operation as Lender may from time to time reasonably request.
(b) Within 15 days after any written request by Lender, Borrower
shall furnish to Lender, for the most recently completed fiscal
quarter of Borrower, the reports specified in (i) and (ii)
above.
(c) Within 15 days after any written request by Lender, Borrower
shall furnish to Lender, for the most recently completed fiscal
year, a combined or consolidated federal income tax return
filed by IWRRET. Said information shall be subject to Lender's
review.
29. Each notice, consent, request, report or other communication under
this Deed of Trust or any other Loan Document (each, a "NOTICE"),
which any party hereto may desire or be required to give to the other
shall be deemed to be an adequate and sufficient notice if given in
writing and service is made by either (i) registered or certified
mail, postage prepaid, in which case notice shall be deemed to have
been received three (3) business days following deposit to U.S. mail;
or (ii) nationally recognized overnight air courier, next day
delivery, prepaid, in which case such notice shall be deemed to have
been received one (1) business day following delivery to such
nationally recognized overnight air courier. All Notices shall be
addressed to Borrower at its address given on the first page hereof,
or to Lender at c/o Principal Real Estate Investors, LLC, 000 Xxxxx
Xxxxxx, Xxx Xxxxxx, Xxxx 00000-0000, Attn: Commercial Real Estate
Servicing, Loan No. 753820, or to such other place as any party may by
written notice to the other parties designate as a place for service
of notice. Borrower shall not be permitted to designate more than one
place for service of Notice concurrently.
30. Lender, from time to time, may substitute another Trustee in place of
the Trustee named herein, to execute the trusts hereby created; and
upon such appointment,
32
and without conveyance to the successor trustee, the successor trustee
shall be vested with all the title, interest, powers, duties and
trusts in the Premises hereby vested in or conferred upon Trustee
herein named. Each such appointment and substitution shall be made by
written instrument executed by the Lender containing reference to this
Deed of Trust sufficient to identify it, which instrument, when
recorded in the office of the County Recorder of the county or
counties in which the Premises is situated, shall be conclusive proof
of proper appointment of the successor trustee. The recital or
statement, in any instrument executed by Trustee in pursuance of any
of said trusts, of the due authorization of any agent of the Trustee
executing the same shall for all purposes be conclusive proof of such
authorization.
31. Trustee at any time, at Trustee's option, may commence and maintain
suit in any court of competent jurisdiction and obtain the aid and
direction of said court in the execution by it of the trusts or any of
them, herein expressed or contained, and, in such suit, may obtain the
orders or decrees, interlocutory or final of said court directing the
execution of said trusts, and confirming and approving Trustee's acts,
or any of them, or any sales or conveyances made by Trustee, and
adjudging the validity thereof, and directing that the purchasers of
the property sold and conveyed be let into immediate possession
thereof, and providing for orders of court of other process requiring
the Sheriff of the county in which said property is situated to place
and maintain said purchasers in quiet and peaceable possession of the
property so purchased by them, and the whole thereof.
32. Borrower has had the opportunity to fully negotiate the terms hereof
and modify the draftsmanship of the Loan Documents and the
Environmental Indemnity. Therefore, the terms of the Loan Documents
and the Environmental Indemnity shall be construed and interpreted
without any presumption, inference, or rule requiring construction or
interpretation of any provision of the Loan Documents and the
Environmental Indemnity against the interest of the party causing the
Loan Documents and the Environmental Indemnity or any portion of it to
be drafted. Borrower is entering into the Loan Documents and the
Environmental Indemnity freely and voluntarily without any duress,
economic or otherwise.
33. Borrower, forthwith upon request, at any and all times hereafter, at
the expense of Borrower, will cause to be made, executed, acknowledged
and delivered to Trustee, any and every deed or assurance in law which
Trustee or counsel of Trustee shall reasonably advise or require for
the more sure, effectual and satisfactory granting and confirming of
said Premises unto Trustee.
34. Trustee shall not be liable or responsible for its acts or omissions
hereunder, except for Trustee's own gross negligence or willful
default, or be liable or
33
responsible for any acts or omissions of any agent, attorneys or
employee by him employed hereunder, if selected with reasonable care.
35. Trustee accepts this trust when this Deed of Trust executed and
acknowledged is made a public record as provided by law. Trustee is
not obligated to notify any party hereto of pending sale under any
other deed of trust or of any action or proceeding in which Borrower,
Lender, or Trustee shall be a party unless brought by Trustee.
36. This Deed of Trust and all provisions hereof shall inure to the
benefit of the heirs, successors and assigns of Lender and shall bind
the heirs and permitted successors and assigns of Borrower.
37. This Deed of Trust shall be governed by, and construed in accordance
with, the laws of the state of California, without regard to its
conflicts of law principles.
38. As used herein, the term "DEFAULT RATE" means a rate equal to the
lesser of (i) four percent (4%) per annum above the then applicable
interest rate payable under the Note or (ii) the maximum rate allowed
by applicable law.
39. BORROWER AND LENDER EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE, TO THE EXTENT PERMITTED BY LAW, TRIAL BY JURY IN ANY ACTIONS
BROUGHT BY BORROWER, TRUSTEE OR LENDER IN CONNECTION WITH THIS DEED OF
TRUST, ANY OF THE LOAN DOCUMENTS, THE INDEBTEDNESS SECURED HEREBY, OR
ANY OTHER STATEMENTS OR ACTIONS OF LENDER.
40. This Deed of Trust and the Indebtedness secured hereby is for the sole
purpose of conducting or acquiring a lawful business, professional or
commercial activity or for the acquisition or management of real or
personal property as a commercial investment, and all proceeds of such
Indebtedness shall be used for said business or commercial investment
purpose. Such proceeds will not be used for the purchase of any
security within the meaning of the Securities Exchange Act of 1934, as
amended, or any regulation issued pursuant thereto, including without
limitation, Regulations U, T and X of the Board of Governors of the
Federal Reserve System. This is not a purchase money deed of trust
where a seller is providing financing to a buyer for the payment of
all or any portion of the purchase price and the Premises secured
hereby is not a residence or homestead or used for mining, grazing,
agriculture, timber or farming purposes.
41. Unless Lender shall otherwise direct in writing, Borrower shall appear
in and defend all actions or proceedings purporting to affect the
security hereunder, or any right or power of the Lender, excluding any
Federal regulatory proceedings
34
against Lender that are not instituted because of any act or omission
by Borrower, any Interest Owner or which result from the Premises. The
Lender shall have the right to appear in such actions or proceedings.
Borrower shall save Lender harmless from all reasonable costs and
expenses, including but not limited to, reasonable attorneys' fees and
costs and costs of a title search, continuation of abstract and
preparation of survey incurred by reason of any action, suit,
proceeding, hearing, motion or application before any court or
administrative body in and to which Lender may be or become a party by
reason hereof, excluding any Federal regulatory proceedings against
Lender that are not instituted because of any act or omission by
Borrower, any Interest Owner or which result from the Premises. Such
proceedings shall include but not be limited to condemnation,
bankruptcy, probate and administration proceedings, as well as any
other action, suit, proceeding, right, motion or application wherein
proof of claim is by law required to be filed or in which it becomes
necessary to defend or uphold the terms of this Deed of Trust or the
Loan Documents or otherwise purporting to affect the security hereof
or the rights or powers of Lender. All money paid or expended by
Lender in that regard, together with interest thereon from date of
such payment at the Default Rate shall be additional Indebtedness
secured hereby and shall be immediately due and payable by Borrower
without notice.
42. Upon the occurrence of an Event of Default, unless the same has been
specifically waived in writing, all Rents collected or received by
Borrower shall be accepted and held for Lender in trust and shall not
be commingled with the funds and property of Borrower, but shall be
promptly paid over to Lender.
43. If more than one, all obligations and agreements of Borrower are joint
and several.
44. This Deed of Trust may be executed in counterparts, each of which
shall be deemed an original; and such counterparts when taken together
shall constitute but one agreement.
45. Borrower shall pay Lender for every Lender statement furnished at
Borrower's request the maximum fee allowed by law pursuant to Section
2943 of the Civil Code of California and all amendments thereto, the
provisions of which are incorporated herein by reference and made a
part hereof. Such fee shall be computed as of the time said statement
is furnished.
46. Borrower hereby irrevocably authorizes Lender to apply any and all
amounts received by Lender in repayment of amounts due under the Loan
Documents first to amounts which are not guaranteed pursuant to the
terms of any guaranty and then to amounts which are guaranteed
pursuant to the terms of any guaranty. Borrower hereby waives any and
all rights it has or may have under Section 2822
35
of the California Civil Code which provides that if a guarantor is
"liable upon only a portion of an obligation and the principal
provides partial satisfaction of the obligation, the principal may
designate the portion of the obligation that is to be satisfied."
47. This Deed of Trust shall be effective as a financing statement filed
as a fixture filing with respect to all fixtures included within the
Property and is to be filed for record in the real estate records in
the office of the county clerk where the Land and Improvements
(including said fixtures) are situated.
REMAINDER OF PAGE INTENTIONALLY BLANK
(Signatures on next page)
36
IN WITNESS WHEREOF, Borrower has caused this Deed of Trust, Security
Agreement and Assignment of Rents to be duly executed and delivered as of the
date first hereinabove written.
INLAND WESTERN LARKSPUR, L.L.C., a
Delaware limited liability company
By: INLAND WESTERN RETAL REAL
ESTATE TRUST, INC., a Maryland
corporation, Member
By: /s/ Xxxxx X Xxxxxx
----------------------------
Name: Xxxxx X Xxxxxx
---------------
Title: Asst Secretary
--------------
STATE OF ILLINOIS )
)
COUNTY OF DuPage )
On _________, 2004, before me, Xxxx Xxxxx, a Notary Public in and for
said state, personally appeared Xxxxx Xxxxxx, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me that he\she executed
the same in his\her authorized capacity, and that by his\her signature on the
instrument, the person, or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
OFFICIAL SEAL
XXXX X XXXXX /s/ Xxxx X Xxxxx
NOTARY PUBLIC, STATE OF ILLINOIS -------------------------------------
MY COMMISSION EXPIRES:09/11/04 Notary Public in and for said State
37
EXHIBIT A
(Legal Description)
Assessor's Parcel No. 00-000-00
Code Area 4-012
All that certain real property situate in the City of Larkspur, County of Marin,
State of California, described as follows:
Lot 1, as shown upon that certain Map entitled "Map of Larkspur Landing" filed
for record August 12, 1977 in Volume 17 of Maps at Page 5, Marin County Records.
EXHIBIT B
(NOS. 1 - 3 INTENTIONALLY OMITTED)
4. An easement for the purpose shown below and rights incidental thereto as set
forth in a document
Recorded: April 22, 1920
in Book 213 of Deeds at Page 339, Marin County
Records.
In Favor of: Marin Municipal Water District, a public corporation
For: To lay, maintain, remove, repair operate and replace
water pipes and mains
Affects: 10 feet wide, Central Portion, as shown upon the
filed map referred to herein
5. An easement for the purpose shown below and rights incidental thereto as set
forth in a document
Recorded: December 14, 1928
in Book 161, of Official Records at Page 250, Marin
County Records.
In Favor of: Pacific Telephone and Telegraph Company, a
corporation
For: To construct, place, inspect, maintain and replace
poles, crossarms, wires, cables, fixtures, anchors
and guys
Affects: 10 feet wide (20 feet wide at location of anchors),
as shown upon the filed map referred to herein
Conditions as therein contained.
6. An easement for the purpose shown below and rights incidental thereto as set
forth in a document
Recorded: July 19, 1957
in Book 1128, of Official Records at Page 544,
Marin County Records.
In Favor of: Pacific Telephone and Telegraph Company, a
corporation
For: To construct, place, inspect, maintain, remove,
repair, replace, use, operate and patrol aerial
wires, cables and other electrical conductors with
associated poles, crossarms, anchors, guys and
fixtures
Affects: 10 feet wide, as shown upon the filed map referred
to herein.
Said easement includes the right to trim trees along the route thereof.
7. Easements for Pacific Gas and Electric Company, Pacific Telephone and
Telegraph Company, Marin Municipal Water District, Sanitary District, all as
shown upon the Survey, recorded May 17, 1974 in Book 12 of Surveys, at Page
28 and amended Survey recorded October 19, 1976 in Book 13 of Surveys, at
Page 60, Marin County Records.
8. Easements for sanitary sewer purposes, public utility purposes, Marin
Municipal Water District purposes, Pacific Gas and Electric Company
purposes, Pacific Telephone and Telegraph Company purposes, all as shown
upon the filed map recorded August 12, 1977 in Volume 17 of Maps, at Page 5,
Marin County Records.
9. An easement for the purpose shown below and rights incidental thereto as set
forth in a document
Recorded: August 12, 1977
in Book 3248, of Official Records at Page 209,
Marin County Records.
In Favor of: Xxxxxxxx Xxxxxxxx Xx. 0 xx Xxxxx Xxxxxx
For: Maintenance of a 36" sanitary sewer force main
Affects: 20 feet wide, Southerly Portion
EXHIBIT B CONT'D
10. An easement for the purpose shown below and rights incidental thereto as set
forth in a document
Recorded: September 23, 1977
in Book 3266, of Official Records at Page 684,
Marin County Records.
In Favor of: Xxxxxxxx Xxxxxxxx Xx. 0 xx Xxxxx Xxxxxx
For: Constructing, laying, maintaining and operating
sewer pipes and appurtenances, together with Ingress
and egress
Affects: 10 feet wide throughout various portions of the
herein described property, as shown upon the filed
map referred to herein
11. An easement for the purpose shown below and rights incidental thereto as set
forth in a document
Recorded: October 24, 1977
in Book 3281, of Official Records at Page 5,
Marin County Records.
In Favor of: City of Larkspur, a municipal corporation
For: Slope Easement
Affects: Southerly Portion
12. An easement for the purpose shown below and rights incidental thereto as set
forth in a document
Recorded: October 13, 1978
in Book 3447, of Official Records at Page 364,
Marin County Records.
In Favor of: Marin Municipal Water District, a public corporation
For: Pipeline or Pipelines
Affects: 40 feet wide and 20 feet wide, affecting various
portions of the herein described property
13. An easement for the purpose shown below and rights incidental thereto as set
forth in a document
Recorded: January 2, 1979
in Book 3484, of Official Records at Page 293 and
September 16, 1980 in Book 3762 of Of?
In Favor of: Pacific Gas and Electric Company, a California
Corporation
For: To construct, install, inspect, maintain, replace,
remove and use facilities
Affects: 10 feet wide, various portions of the herein
described property, as shown upon the plat attached
to said document
The present ownership of the leasehold created by said lease and other
matters affecting the Interest of the lessee are not shown herein.
14. An easement for the purpose shown below and rights incidental thereto as set
forth in a document
Recorded: January 16, 1979
in Book 3490, of Official Records at Page 352,
Marin County Records.
In Favor of: Xxxxxxxx Xxxxxxxx Xx. 0 xx Xxxxx Xxxxxx
For: Construction and maintenance of sanitary sewer
facilities
Affects: 10 feet wide, along Southwesterly Line
15. An easement for the purpose shown below and rights incidental thereto as set
forth in a document
Recorded: April 12, 1979
in Book 3529, of Official Records at Page 468,
Marin County Records.
In Favor of: Pacific Gas and Electric Company, a California
Corporation
For: To construct, install, inspect, maintain, replace,
remove and use facilities
Affects: 10 feet by 27.5 feet, Northwesterly Portion
EXHIBIT B CONT'D
16. An easement for the purpose shown below and rights incidental thereto as set
forth in a document
Recorded: April 12, 1979
in Book 3529, of Official Records at Page 471,
Marin County Records.
In Favor of: Pacific Gas and Electric Company, a California
Corporation
For: To construct, install, inspect, maintain, replace,
remove and use facilities
Affects: 10 feet wide, Southwesterly portion
17. An easement for the purpose shown below and rights incidental thereto as set
forth in a document
Recorded: April 24, 1980
in Book 3706, of Official Records at Page 299,
Marin County Records.
In Favor of: Pacific Gas and Electric Company, a California
Corporation
For: To construct, install inspect, maintain, replace,
remove and use facilities
Affects: Northwesterly Portion, as shown upon the plat
attached to said document
18. An easement for the purpose shown below and rights incidental thereto as set
forth in a document
Recorded: October 30, 1980
in Book 3784, of Official Records at Page 143, Marin
County Records.
In Favor of: Pacific Gas and Electric Company, a California
Corporation
For: To construct, install, inspect, maintain, replace,
remove and use facilities
Affects: 10 feet wide in the Northerly Portion, as shown
upon the plat attached to said document
19. An easement for the purpose shown below and rights incidental thereto as set
forth in a document
Recorded: August 12, 1981
as instrument Xx. 00 00000, Xxxxx Xxxxxx Xxxxxxx.
In Favor of: Pacific Gas and Electric Company, a California
Corporation
For: To construct, install, inspect, maintain, replace,
remove and use facilities
Affects: 10 feet wide, Southeasterly Portion, as shown upon
the plat attached to said document
20. An easement for the purpose shown below and rights incidental thereto as set
forth in a document
Recorded: October 26, 1984
as Instrument No. 84 050411, Marin County Records.
In Favor of: City of Larkspur, a municipal corporation
For: Construct, maintain, repair and replace a pedestrian
bridge
Affects: Southwesterly Portion
Conditions as therein contained.
21. An easement for the purpose shown below and rights incidental thereto as set
forth in a document:
Recorded: December 16, 1985
as Instrument Xx. 00 00000, Xxxxx Xxxxxx Xxxxxxx.
For: To build and maintain Pedestrian bridge
Affects: Southwesterly Portion
EXHIBIT B CONT'D
22. Matters contained in that certain document entitled "Easement Agreement"
dated February 3, 1982, executed by and between The Equitable Life Assurance
Society of the United States, a New York Corporation and Gamma Investment
Company, a California Limited Partnership
Recorded: December 16, 1985
as Instrument Xx. 00 00000, Xxxxx Xxxxxx Xxxxxxx.
Reference is hereby made to the public record for full particulars.
NOTE: Section 12956.1 of the Government Code provides the following: If this
document contains any restriction based on race, color, religion, sex,
familial status, marital status disability, national origin, or ancestry,
that restriction violates state and federal fair housing laws and is void.
Any person holding an interest in this property may request that the county
recorder remove the restrictive language pursuant to subdivision (c) of
Section 12956.1 of the Government Code.
23. Rights of Tenants in Possession, as tenants only, as said tenants are
disclosed by the "Schedule 2 to Owner's Statement", attached hereto.
24. Any rights, interests, or claims which may exist or arise by reason of the
following facts shown on a survey plat entitled ALTA/ACSM Land Title of
Larkspur Landing for Inland Western Larkspur LLC, dated December 2003,
prepared by Xxxx & Xxxxxx, Civil Engineers & Surveying, Job No. 98649-6:
a. The fact that Building 4 and Building D encroach that certain easement
recorded April 22, 1920 in Book 213 of Deeds, at Page 339, Marin County
Records.
b. The fact that a one-story building encroaches that certain easement
recorded December 14, 1928 in Book 161 of Official Records, at Page 250,
Marin County Records.
c. The fact that a one-story building and Building 1 encroach that certain
easement recorded July 19, 1957 in Book 1128 of Official Records, at
Page 544, Marin County Records.
d. The fact that a pedestrian bridge encroaches that certain easement
recorded October 24, 1977 in Book 3281 of Official Records, at Page 5,
Marin County Records.
e. The fact that a building overhang located on Building C encroaches that
certain easement recorded October 30, 1980 in Book 3784 of Official
Records, at Page 143, Marin County Records.
f. The fact that stairs encroach outside the exterior property lines in the
Westerly portion of the Northerly line and along the Southerly and
Southwesterly portions.
g. The fact that Buildings 1, 4 and 5 encroach that certain easement
recorded September 16, 1980 in Book 3762 of Official Records, at Page
11?, Marin County Records.
h. The fact that Building D encroaches a storm drainage easement and a
joint trench line
