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EXHIBIT 10.6
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
Real Estate Group (AU #0000)
000 Xxxxxxxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
Loan No. 1440
With a Copy To:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
================================================================================
DEED OF TRUST
WITH ABSOLUTE ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THE PARTIES TO THIS DEED OF TRUST WITH ABSOLUTE ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING ("Deed of Trust"), made as of December __,
2000, are COMMUNICATIONS & POWER INDUSTRIES HOLDING CORPORATION, a Delaware
corporation ("Trustor"), AMERICAN SECURITIES COMPANY, a California corporation
("Trustee"), and XXXXX FARGO BANK, NATIONAL ASSOCIATION ("Beneficiary").
ARTICLE 1. GRANT IN TRUST
1.1 GRANT. For the purposes of and upon the terms and conditions in
this Deed of Trust, Trustor irrevocably grants, conveys and
assigns to Trustee, in trust for the benefit of Beneficiary,
with power of sale and right of entry and possession, all of
that real property located in the City of San Xxxxxx, County of
San Mateo, State of California, described on Exhibit A attached
hereto, together with all right, title, interest, and privileges
of Trustor in and to all streets, ways, roads, and alleys used
in connection with or pertaining to such real property, all
development rights or credits, air rights, water, water rights
and water stock related to the real property, and all minerals,
oil and gas, and other hydrocarbon substances in, on or under
the real property, and all appurtenances, easements, rights and
rights of way appurtenant or related thereto; all buildings,
other improvements and fixtures now or hereafter located on the
real property, including, but not limited to, all apparatus,
equipment, and appliances used in the operation or occupancy of
the real property, it being intended by the parties that all
such items shall be conclusively considered to be a part of the
real property, whether or not attached or affixed to the real
property (the "Improvements"); to the extent assignable (if at
all), all rights of Trustor under Section 10.2 of that certain
Stock Sale Agreement dated June 9, 1995, by and between Trustor
and Varian Associates, Inc., as amended, that relate to the
Subject Property; deposits, security deposits, letters of
credit, lease bonds and other deposit substitutes, credit
enhancements and other like items under or with respect to any
Lease of any portion of the Property; all interest or estate
which Trustor may hereafter acquire in the property described
above, and all additions and accretions thereto, and
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the proceeds of any of the foregoing; (all of the foregoing
being collectively referred to as the "Subject Property"). The
listing of specific rights or property shall not be interpreted
as a limit of general terms.
1.2 ADDRESS. The address of the Subject Property is: 000 Xxxxxxxxxx
Xxxx. However, neither the failure to designate an address nor
any inaccuracy in the address designated shall affect the
validity or priority of the lien of this Deed of Trust on the
Subject Property as described on Exhibit A.
ARTICLE 2. OBLIGATIONS SECURED
2.1 OBLIGATIONS SECURED. Trustor makes this Deed of Trust for the
purpose of securing the following obligations ("Secured
Obligations"):
(a) Payment to Beneficiary of all sums at any time owing
under that certain Promissory Note ("Note") of even date
herewith, in the principal amount of EIGHTEEN MILLION
AND NO/100THS DOLLARS ($18,000,000.00) executed by
Trustor, as borrower, and payable to the order of
Beneficiary, as lender; and
(b) Payment and performance of all covenants and obligations
of Trustor under this Deed of Trust; and
(c) Payment and performance of all covenants and obligations
on the part of Borrower under that certain Loan
Agreement ("Loan Agreement") of even date herewith by
and between Borrower and Beneficiary, as lender; and
(d) Payment and performance of all covenants and
obligations, if any, of any rider attached as an Exhibit
to this Deed of Trust; and
(e) Payment and performance of all future advances and other
obligations that the then record owner of all or part of
the Subject Property may agree to pay and/or perform
(whether as principal, surety or guarantor) for the
benefit of Beneficiary, when such future advance or
obligation is evidenced by a writing which recites that
it is secured by this Deed of Trust; and
(f) Intentionally omitted.
(g) Intentionally omitted.
(h) All modifications, extensions and renewals of any of the
obligations secured hereby, however evidenced,
including, without limitation: (i) modifications of the
required principal payment dates or interest payment
dates or both, as the case may be, deferring or
accelerating payment dates wholly or partly; or (ii)
modifications, extensions or renewals at a different
rate of interest whether or not in the case of a note,
the modification, extension or renewal is evidenced by a
new or additional promissory note or notes.
2.2 OBLIGATIONS. The term "obligations" is used herein in its
broadest and most comprehensive sense and shall be deemed to
include, without limitation, all interest and charges,
prepayment charges (if any), late charges and loan fees at any
time accruing or assessed on any of the Secured Obligations.
2.3 INCORPORATION. All terms of the Secured Obligations and the
documents evidencing such obligations are incorporated herein by
this reference. All persons who may have or acquire an interest
in the Subject Property shall be deemed to have notice of the
terms of the Secured Obligations and to have notice, if provided
therein, that: (a) the Note or the Loan Agreement may permit
borrowing, repayment and re-borrowing so that repayments shall
not reduce the amounts of the Secured Obligations; and (b) the
rate of interest on one or more Secured Obligations may vary
from time to time.
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ARTICLE 3. ASSIGNMENT OF LEASES AND RENTS
3.1 ASSIGNMENT. Trustor hereby irrevocably assigns to Beneficiary
all of Trustor's right, title and interest in, to and under: (a)
all leases of the Subject Property or any portion thereof, and
all other agreements of any kind relating to the use or
occupancy of the Subject Property or any portion thereof,
whether now existing or entered into after the date hereof
("Leases"); and (b) the rents, revenue, income, issues,
deposits, security deposits, letters of credit, lease bonds and
other deposit substitutes or credit enhancements and profits of
the Subject Property, including, without limitation, all amounts
payable and all rights and benefits accruing to Trustor under
the Leases, and all deposits, security deposits, letters of
credit, lease bonds and other deposit substitutes, or credit
enhancements ("Payments"). The term "Leases" shall also include
all guarantees of and security for the lessees' performance
thereunder, and all amendments, extensions, renewals or
modifications thereto which are permitted hereunder. This is a
present and absolute assignment, not an assignment for security
purposes only, and Beneficiary's right to the Leases and
Payments is not contingent upon, and may be exercised without
possession of, the Subject Property.
3.2 GRANT OF LICENSE. Beneficiary confers upon Trustor a license
("License") to collect and retain the Payments as they become
due and payable, until the occurrence of and during the
continuance of a Default (as hereinafter defined). Upon a
Default and during the continuance thereof, the License shall be
automatically revoked and Beneficiary may collect and apply the
Payments pursuant to Section 6.4 without notice and without
taking possession of the Subject Property. Trustor hereby
irrevocably authorizes and directs the lessees under the Leases
to rely upon and comply with any notice or demand by Beneficiary
for the payment to Beneficiary of any rental or other sums which
may at any time become due under the Leases, or for the
performance of any of the lessees' undertakings under the
Leases, and the lessees shall have no right or duty to inquire
as to whether any Default has actually occurred or is then
existing hereunder. Trustor hereby relieves the lessees from any
liability to Trustor by reason of relying upon and complying
with any such notice or demand by Beneficiary.
3.3 EFFECT OF ASSIGNMENT. The foregoing irrevocable assignment shall
not cause Beneficiary to be: (a) a mortgagee in possession; (b)
responsible or liable for the control, care, management or
repair of the Subject Property or for performing any of the
terms, agreements, undertakings, obligations, representations,
warranties, covenants and conditions of the Leases; or (c)
responsible or liable for any waste committed on the Subject
Property by the lessees under any of the Leases or any other
parties; for any dangerous or defective condition of the Subject
Property; or for any negligence in the management, upkeep,
repair or control of the Subject Property resulting in loss or
injury or death to any lessee, licensee, employee, invitee or
other person. Beneficiary and Trustee shall not directly or
indirectly be liable to Trustor or any other person as a
consequence of: (i) the exercise or failure to exercise by
Beneficiary or Trustee, or any of their respective employees,
agents, contractors or subcontractors, any of the rights,
remedies or powers granted to Beneficiary or Trustee hereunder;
or (ii) the failure or refusal of Beneficiary to perform or
discharge any obligation, duty or liability of Trustor arising
under the Leases.
3.4 REPRESENTATIONS AND WARRANTIES. Trustor represents and warrants
that: (a) the Schedule of Leases attached hereto as Schedule 1
is, as of the date hereof, a true, accurate and complete list of
all Leases; (b) all existing Leases are in full force and effect
and are enforceable in accordance with their respective terms,
and no breach or default, or event which would constitute a
breach or default after notice or the passage of time, or both,
exists under any existing Leases on the part of any party; (c)
no rent or other payment under any existing Lease has been paid
by any lessee for more than one (1) month in advance; and (d)
none of the lessor's interests under any of the Leases has been
transferred or assigned.
3.5 COVENANTS. Trustor covenants and agrees at Trustor's sole cost
and expense to: (a) perform the obligations of lessor contained
in the Leases and enforce by all available remedies performance
by the lessees of the obligations of the lessees contained in
the Leases; (b) give Beneficiary prompt written notice of any
default which occurs with respect to any of the Leases, whether
the default be that of the lessee or of the lessor; (c) exercise
Trustor's best efforts to keep all portions of the Subject
Property that are capable of being leased at rental rates
pursuant to the terms of the Loan Agreement; (d) deliver to
Beneficiary fully executed, counterpart original(s) of each and
every Lease if requested to do so; and (e) execute and record
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such additional assignments of any Lease or specific
subordinations (or subordination, attornment and non-disturbance
agreements executed by the lessor and lessee) of any Lease to
the Deed of Trust, in form and substance acceptable to
Beneficiary, as Beneficiary may request. Trustor shall not,
without Beneficiary's prior written consent or as otherwise
permitted by any provision of the Loan Agreement: (i) enter into
any Leases after the date thereof; (ii) execute any other
assignment relating to any of the Leases; (iii) discount any
rent or other sums due under the Leases or collect the same in
advance, other than to collect rentals one (1) month in advance
of the time when it becomes due; (iv) terminate, modify or amend
any of the terms of the Leases or in any manner release or
discharge the lessees from any obligations thereunder; (v)
unreasonably consent to any assignment or subletting by any
lessee; or (vi) subordinate or agree to subordinate any of the
Leases to any other deed of trust or encumbrance. Any such
attempted action in violation of the provisions of this Section
3.5 shall be null and void. Without in any way limiting the
requirement of Beneficiary's consent hereunder, any sums
received by Trustor in consideration of any termination (or the
release or discharge of any lessee) modification or amendment of
any Lease shall be applied to reduce the outstanding Secured
Obligations and any such sums received by Trustor shall be held
in trust by Trustor for such purpose.
3.6 ESTOPPEL CERTIFICATES. Within thirty (30) days after written
request by Beneficiary, Trustor shall deliver to Beneficiary and
to any party designated by Beneficiary estoppel certificates
executed by Trustor and by each of the lessees, in recordable
form, certifying (if such be the case): (a) that the foregoing
assignment and the Leases are in full force and effect; (b) the
date of each lessee's most recent payment of rent; (c) that
there are no defenses or offsets outstanding, or stating those
claimed by Trustor or lessees under the foregoing assignment or
the Leases, as the case may be; and (d) any other information
reasonably requested by Beneficiary.
ARTICLE 4. SECURITY AGREEMENT AND FIXTURE FILING
4.1 SECURITY INTEREST. Trustor hereby grants and assigns to
Beneficiary as of the "Effective Date" (defined in the Loan
Agreement) a security interest, to secure payment and
performance of all of the Secured Obligations, in all of the
following described personal property in which Trustor now or at
any time hereafter has any interest (collectively, the
"Collateral"):
All goods, building and other materials, supplies, work
in process, equipment, machinery, fixtures, furniture,
furnishings, signs and other personal property, wherever
situated, which are or are to be incorporated into, used
in connection with, or appropriated for use on (i) the
real property described on Exhibit A attached hereto and
incorporated by reference herein (to the extent the same
are not effectively made a part of the real property
pursuant to Section 1.1 above) or (ii) the Improvements
(which real property and Improvements are collectively
referred to herein as the Subject Property); together
with all rents (to the extent, if any, they are not
subject to Article 3); all inventory, accounts, cash
receipts, deposit accounts, accounts receivable,
contract rights, licenses, agreements, general
intangibles, chattel paper, instruments, documents,
notes, drafts, letters of credit, insurance policies,
insurance and condemnation awards and proceeds, any
other rights to the payment of money, trade names,
trademarks and service marks, in every case, arising
from or related to the ownership, management, leasing or
operation of the Subject Property or any business now or
hereafter conducted thereon by Trustor; all permits
consents, approvals, licenses, authorizations and other
rights granted by, given by or obtained from, any
governmental entity with respect to the Subject
Property; all deposits or other security now or
hereafter made with or given to utility companies by
Trustor with respect to the Subject Property; all
advance payments of insurance premiums made by Trustor
with respect to the Subject Property; all plans,
drawings and specifications relating to the Subject
Property; all loan funds held by Beneficiary, whether or
not disbursed; all funds deposited with Beneficiary
pursuant to any loan agreement; all reserves, deferred
payments, deposits, security deposits, letters of
credit, lease bonds and other deposit substitutes,
credit enhancements, other like items, accounts,
refunds, cost savings and payments of any kind related
to the Subject Property or any portion thereof; together
with all replacements and proceeds of, and additions and
accessions to, any of the foregoing; together with all
books, records and files relating to any of the
foregoing.
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As to all of the above described personal property which
is or which hereafter becomes a "fixture" under
applicable law, this Deed of Trust constitutes a fixture
filing under Sections 9313 and 9402(6) of the California
Uniform Commercial Code, as amended or recodified from
time to time, and is acknowledged and agreed to be a
"construction mortgage" under such Sections.
4.2 REPRESENTATIONS AND WARRANTIES. Trustor represents and warrants
that: (a) Trustor has, or will have, good title to the
Collateral; (b) Trustor has not previously assigned or
encumbered the Collateral, and no financing statement covering
any of the Collateral has been delivered to any other person or
entity; and (c) Trustor's principal place of business is located
at the address shown in Section 7.11.
4.3 RIGHTS OF BENEFICIARY. In addition to Beneficiary's rights as a
"Secured Party" under the California Uniform Commercial Code, as
amended or recodified from time to time ("UCC"), Beneficiary
may, but shall not be obligated to, at any time without notice
and, after the occurrence and during the continuation of a
Default, at the expense of Trustor: (a) give notice to any
person of Beneficiary's rights hereunder and enforce such rights
at law or in equity; (b) insure, protect, defend and preserve
the Collateral or any rights or interests of Beneficiary
therein; (c) inspect the Collateral; and (d) endorse, collect
and receive any right to payment of money owing to Trustor under
or from the Collateral. Notwithstanding the above, in no event
shall Beneficiary be deemed to have accepted any property other
than cash in satisfaction of any obligation of Trustor to
Beneficiary unless Beneficiary shall make an express written
election of said remedy under UCC Section 9505, or other
applicable law.
4.4 RIGHTS OF BENEFICIARY ON DEFAULT. Upon the occurrence of and
during the continuation of a Default (hereinafter defined) under
this Deed of Trust, then in addition to all of Beneficiary's
rights as a "Secured Party" under the UCC or otherwise at law:
(a) Beneficiary may (i) upon written notice, require Trustor
to assemble any or all of the Collateral and make it
available to Beneficiary at a place designated by
Beneficiary; (ii) without prior notice, enter upon the
Subject Property or other place where any of the
Collateral may be located and take possession of,
collect, sell, and dispose of any or all of the
Collateral, and store the same at locations acceptable
to Beneficiary at Trustor's expense; (iii) sell, assign
and deliver at any place or in any lawful manner all or
any part of the Collateral and bid and become the
purchaser at any such sales; and
(b) Beneficiary may, for the account of Trustor and at
Trustor's expense: (i) operate, use, consume, sell or
dispose of the Collateral as Beneficiary deems
appropriate for the purpose of performing any or all of
the Secured Obligations; (ii) enter into any agreement,
compromise, or settlement, including insurance claims,
which Beneficiary may deem desirable or proper with
respect to any of the Collateral; and (iii) endorse and
deliver evidences of title for, and receive, enforce and
collect by legal action or otherwise, all indebtedness
and obligations now or hereafter owing to Trustor in
connection with or on account of any or all of the
Collateral.
Notwithstanding any other provision hereof, Beneficiary
shall not be deemed to have accepted any property other
than cash in satisfaction of any obligation of Trustor
to Beneficiary unless Trustor shall make an express
written election of said remedy under UCC Section 9505,
or other applicable law.
4.5 POWER OF ATTORNEY. Trustor hereby irrevocably appoints
Beneficiary as Trustor's attorney-in-fact (such agency being
coupled with an interest), and as such attorney-in-fact
Beneficiary may, without the obligation to do so, in
Beneficiary's name, or in the name of Trustor, prepare, execute
and file or record financing statements, continuation
statements, applications for registration and like papers
necessary to create, perfect or preserve any of Beneficiary's
security interests and rights in or to any of the Collateral,
and, upon a Default or during the continuance of a Default
hereunder, take any other action required of Trustor; provided,
however, that Beneficiary as such attorney-in-fact shall be
accountable only for such funds as are actually received by
Beneficiary.
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4.6 POSSESSION AND USE OF COLLATERAL. Except as otherwise provided
in this Section or the other Loan Documents (as defined in the
Loan Agreement), so long as no Default exists under this Deed of
Trust or any of the Loan Documents, Trustor may possess, use,
move, transfer or dispose of any of the Collateral in the
ordinary course of Trustor's business and in accordance with the
Loan Agreement.
ARTICLE 5. RIGHTS AND DUTIES OF THE PARTIES
5.1 TITLE. Trustor represents and warrants that, except as disclosed
to Beneficiary in a writing which refers to this warranty,
Trustor lawfully holds and possesses fee simple title to the
Subject Property without limitation on the right to encumber,
and that this Deed of Trust is a first and prior lien on the
Subject Property.
5.2 TAXES AND ASSESSMENTS. Subject to Trustor's rights to contest
payment of taxes as may be provided in the Loan Agreement,
Trustor shall pay prior to delinquency all taxes, assessments,
levies and charges imposed by any public or quasi-public
authority or utility company which are or which may become a
lien upon or cause a loss in value of the Subject Property or
any interest therein. Trustor shall also pay prior to
delinquency all taxes, assessments, levies and charges imposed
by any public authority upon Beneficiary by reason of its
interest in any Secured Obligation or in the Subject Property,
or by reason of any payment made to Beneficiary pursuant to any
Secured Obligation; provided, however, Trustor shall have no
obligation to pay taxes which may be imposed from time to time
upon Beneficiary and which are measured by and imposed upon
Beneficiary's net income.
5.3 TAX AND INSURANCE IMPOUNDS. At any time following the occurrence
of a Default and during the continuance thereof, at
Beneficiary's option and upon its demand, Trustor, shall, until
all Secured Obligations have been paid in full, pay to
Beneficiary monthly, annually or as otherwise directed by
Beneficiary an amount estimated by Beneficiary to be equal to:
(a) all taxes, assessments, levies and charges imposed by any
public or quasi-public authority or utility company which are or
may become a lien upon the Subject Property or Collateral and
will become due for the tax year during which such payment is so
directed; and (b) premiums for fire, hazard and insurance
required or requested pursuant to the Loan Documents when same
are next due. If Beneficiary determines that any amounts paid by
Trustor are insufficient for the payment in full of such taxes,
assessments, levies, charges and/or insurance premiums,
Beneficiary shall notify Trustor of the increased amounts
required to pay all amounts when due, whereupon Trustor shall
pay to Beneficiary within thirty (30) days thereafter the
additional amount as stated in Beneficiary's notice. All sums so
paid shall not bear interest, except to the extent and in any
minimum amount required by law; and Beneficiary shall, unless
Trustor is otherwise in Default hereunder or under any Loan
Document, apply said funds to the payment of, or at the sole
option of Beneficiary release said funds to Trustor for the
application to and payment of, such sums, taxes, assessments,
levies, charges, and insurance premiums. Upon Default by Trustor
hereunder or under any Secured Obligation, Beneficiary may apply
all or any part of said sums to any Secured Obligation and/or to
cure such Default, in which event Trustor shall be required to
restore all amounts so applied, as well as to cure any other
events or conditions of Default not cured by such application.
Upon assignment of this Deed of Trust, Beneficiary shall have
the right to assign all amounts collected and in its possession
to its assignee whereupon Beneficiary and the Trustee shall be
released from all liability with respect thereto. Within
ninety-five (95) days following full repayment of the Secured
Obligations (other than full repayment of the Secured
Obligations as a consequence of a foreclosure or conveyance in
lieu of foreclosure of the liens and security interests securing
the Secured Obligations) or at such earlier time as Beneficiary
may elect, the balance of all amounts collected and in
Beneficiary's possession shall be paid to Trustor and no other
party shall have any right or claim thereto.
5.4 PERFORMANCE OF SECURED OBLIGATIONS. Trustor shall promptly pay
and perform each Secured Obligation when due.
5.5 LIENS, ENCUMBRANCES AND CHARGES. Trustor shall immediately
discharge any lien not approved by Beneficiary in writing that
has or may attain priority over this Deed of Trust. Subject to
the provisions of the Loan Agreement regarding mechanics' liens,
Trustor shall pay when due all obligations secured by or which
may become liens and encumbrances which shall now or hereafter
encumber or appear to encumber all or any part of the Subject
Property or Collateral, or any interest therein, whether senior
or subordinate hereto.
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5.6 DAMAGES; INSURANCE AND CONDEMNATION PROCEEDS.
(a) The following (whether now existing or hereafter
arising) are all absolutely and irrevocably assigned by
Trustor to Beneficiary and, at the request of
Beneficiary, shall be paid directly to Beneficiary: (i)
all awards of damages and all other compensation payable
directly or indirectly by reason of a condemnation or
proposed condemnation for public or private use
affecting all or any part of, or any interest in, the
Subject Property or Collateral; (ii) all other claims
and awards for damages to, or decrease in value of, all
or any part of, or any interest in, the Subject Property
or Collateral; (iii) all proceeds of any insurance
policies payable by reason of loss sustained to all or
any part of the Subject Property or Collateral; and (iv)
all interest which may accrue on any of the foregoing.
Subject to applicable law and Section 5.6(b),
Beneficiary may at its discretion apply all or any of
the proceeds it receives to its expenses in settling,
prosecuting or defending any claim and may apply the
balance to the Secured Obligations in any order
acceptable to Beneficiary, and/or Beneficiary may
release all or any part of the proceeds to Trustor upon
any reasonable conditions Beneficiary may impose.
Beneficiary may commence, appear in, defend or prosecute
any assigned claim or action and may adjust, compromise,
settle and collect all claims and awards assigned to
Beneficiary; provided, however, in no event shall
Beneficiary be responsible for any failure to collect
any claim or award, regardless of the cause of the
failure, except for any malfeasance by Beneficiary or
its employees or agents.
(b) In the event of a casualty, so long as there is not then
in existence a Default which remains uncured, the amount
of repair or restoration does not exceed fifty percent
(50%) of the then outstanding unpaid balance of the
Loan, and Beneficiary reasonably determines that its
security is not impaired by the casualty, Beneficiary
shall permit insurance proceeds held by Beneficiary to
be used for repair or restoration; otherwise,
Beneficiary may, but shall not be obligated to, permit
insurance proceeds held by Beneficiary to be used for
repair or restoration. In the event of a condemnation,
so long as there is not then in existence a Default
which remains uncured, the amount of repair or
restoration does not exceed ten percent (10%) of the
then outstanding unpaid balance of the Loan, Beneficiary
reasonably determines that its security is not impaired
by the condemnation, and restoration is reasonably
feasible, Beneficiary shall permit insurance proceeds
held by Beneficiary to be used for repair or
restoration; otherwise, Beneficiary may, but shall not
be obligated to, permit condemnation proceeds held by
Beneficiary to be used for repair or restoration In the
event of any of the foregoing, Beneficiary may condition
such application upon reasonable conditions, including,
without limitation: (i) the deposit with Beneficiary of
such additional funds which Beneficiary reasonably
determines are needed to pay all costs of the repair or
restoration, (including, without limitation, taxes,
financing charges, insurance and rent during the repair
period); (ii) the establishment of an arrangement for
lien releases and disbursement of funds acceptable to
Beneficiary (the arrangement contained in the Loan
Agreement for obtaining lien releases and disbursing
loan funds shall be deemed reasonable with respect to
disbursement of insurance or condemnation proceeds);
(iii) the delivery to Beneficiary of plans and
specifications for the work, a contract for the work
signed by a contractor acceptable to Beneficiary, a cost
breakdown for the work and a payment and performance
bond for the work, all of which shall be acceptable to
Beneficiary; and (iv) the delivery to Beneficiary of
evidence acceptable to Beneficiary (aa) that after
completion of the work the income from the Subject
Property will be sufficient to pay all expenses and debt
service for the Subject Property; (bb) of the
continuation of Leases acceptable to and required by
Beneficiary; (cc) that upon completion of the work, the
size, capacity and total value of the Subject Property
will be at least as great as it was before the damage or
condemnation occurred; (dd) that there has been no
material adverse change in the financial condition or
credit of Trustor since the date of this Deed of Trust;
and (ee) of the satisfaction of any additional
conditions that Beneficiary may reasonably establish to
protect its security. Trustor hereby acknowledges that
the conditions described above are reasonable, and, if
such conditions have not been satisfied within one
hundred fifty (150) days of receipt by Beneficiary of
such insurance or condemnation proceeds, then
Beneficiary may apply such insurance or condemnation
proceeds to pay the Secured Obligations in such order
and amounts as Beneficiary in its sole discretion may
choose.
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5.7 MAINTENANCE AND PRESERVATION OF THE SUBJECT PROPERTY. Subject to
the provisions of the Loan Agreement, Trustor covenants: (a) to
insure the Subject Property and Collateral against such risks as
Beneficiary may require and, at Beneficiary's request, to
provide evidence of such insurance to Beneficiary, and to comply
with the requirements of any insurance companies providing such
insurance; (b) to keep the Subject Property and Collateral in
good condition and repair; (c) not to remove or demolish the
Subject Property or Collateral or any part thereof, not to
alter, restore or add to the Subject Property or Collateral and
not to initiate or acquiesce in any change in any zoning or
other land classification which affects the Subject Property
without Beneficiary's prior written consent, which consent shall
not be unreasonably withheld, or as provided in the Loan
Agreement; (d) to the extent that insurance and condemnation
proceeds are made available to it by Beneficiary, to complete or
restore promptly and in good and workmanlike manner the Subject
Property and Collateral, or any part thereof which may be
damaged or destroyed; (e) to comply with all laws, ordinances,
regulations and standards, and all covenants, conditions,
restrictions and equitable servitudes, whether public or
private, of every kind and character which affect the Subject
Property or Collateral and pertain to acts committed or
conditions existing thereon, including, without limitation, any
work, alteration, improvement or demolition mandated by such
laws, covenants or requirements; (f) not to commit or permit
waste of the Subject Property or Collateral; and (g) to do all
other acts which from the character or use of the Subject
Property or Collateral may be reasonably necessary to maintain
and preserve its value.
5.8 DEFENSE AND NOTICE OF LOSSES, CLAIMS AND ACTIONS. At Trustor's
sole expense, Trustor shall protect, preserve and defend the
Subject Property and Collateral and title to and right of
possession of the Subject Property and Collateral, the security
hereof and the rights and powers of Beneficiary and Trustee
hereunder against all adverse claims. Trustor shall give
Beneficiary and Trustee prompt notice in writing of the
assertion of any claim, of the filing of any action or
proceeding, of the occurrence of any damage to the Subject
Property or Collateral and of any condemnation offer or action.
5.9 ACCEPTANCE OF TRUST; POWERS AND DUTIES OF TRUSTEE.
(a) Trustee accepts this trust when this Deed of Trust is
recorded. Except as may be required by applicable law,
Trustee or Beneficiary may from time to time apply to
any court of competent jurisdiction for aid and
direction in the execution of the trust hereunder and
the enforcement of the rights and remedies available
hereunder, and may obtain orders or decrees directing or
confirming or approving acts in the execution of said
trust and the enforcement of said remedies.
(b) Trustee shall not be required to take any action toward
the execution and enforcement of the trust hereby
created or to institute, appear in, or defend any
action, suit, or other proceeding in connection
therewith where, in his opinion, such action would be
likely to involve him in expense or liability, unless
requested so to do by a written instrument signed by
Beneficiary and, if Trustee so requests, unless Trustee
is tendered security and indemnity satisfactory to
Trustee against any and all cost, expense, and liability
arising therefrom. Trustee shall not be responsible for
the execution, acknowledgment, or validity of the Loan
Documents, or for the proper authorization thereof, or
for the sufficiency of the lien and security interest
purported to be created hereby, and Trustee makes no
representation in respect thereof or in respect of the
rights, remedies, and recourses of Beneficiary.
(c) With the approval of Beneficiary, Trustee shall have the
right to take any and all of the following actions: (i)
to select, employ, and advise with counsel (who may be,
but need not be, counsel for Beneficiary) upon any
matters arising hereunder, including the preparation,
execution, and interpretation of the Loan Documents, and
shall be fully protected in relying as to legal matters
on the advice of counsel, (ii) to execute any of the
trusts and powers hereof and to perform any duty
hereunder either directly or through his agents or
attorneys, (iii) to select and employ, in and about the
execution of his duties hereunder, suitable accountants,
engineers and other experts, agents and
attorneys-in-fact, either corporate or individual, not
regularly in the employ of Trustee, and Trustee shall
not be answerable for any act, default, negligence, or
misconduct of any such accountant, engineer or other
expert, agent or attorney-in-fact, if selected with
reasonable care, or for any error of judgment or act
done by Trustee in good faith, or be otherwise
responsible or accountable under any circumstances
whatsoever, except for Trustee's gross negligence or bad
faith, and (iv) any and all other lawful action as
Beneficiary may instruct Trustee to take to protect or
enforce Beneficiary's
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rights hereunder. Trustee shall not be personally liable
in case of entry by Trustee, or anyone entering by
virtue of the powers herein granted to Trustee, upon the
Subject Property for debts contracted for or liability
or damages incurred in the management or operation of
the Subject Property. Trustee shall have the right to
rely on any instrument, document, or signature
authorizing or supporting any action taken or proposed
to be taken by Trustee hereunder, believed by Trustee in
good faith to be genuine. Trustee shall be entitled to
reimbursement for expenses incurred by Xxxxxxx in the
performance of Xxxxxxx's duties hereunder and to
reasonable compensation for such of Trustee's services
hereunder as shall be rendered. TRUSTOR WILL, FROM TIME
TO TIME, PAY THE COMPENSATION DUE TO TRUSTEE HEREUNDER
AND REIMBURSE TRUSTEE FOR, AND INDEMNIFY AND HOLD
HARMLESS TRUSTEE AGAINST, ANY AND ALL LIABILITY AND
REASONABLE OUT-OF-POCKET EXPENSES WHICH MAY BE INCURRED
BY TRUSTEE IN THE PERFORMANCE OF TRUSTEE'S DUTIES.
(d) All moneys received by Trustee shall, until used or
applied as herein provided, be held in trust for the
purposes for which they were received, but need not be
segregated in any manner from any other moneys (except
to the extent required by applicable law) and Trustee
shall be under no liability for interest on any moneys
received by Trustee hereunder.
(e) Should any deed, conveyance, or instrument of any nature
be required from Trustor by any Trustee or substitute
Trustee to more fully and certainly vest in and confirm
to the Trustee or substitute Trustee such estates,
rights, powers, and duties, then, upon request by the
Trustee or substitute Trustee, any and all such deeds,
conveyances and instruments shall be made, executed,
acknowledged, and delivered and shall be caused to be
recorded and/or filed by Trustor.
(f) By accepting or approving anything required to be
observed, performed, or fulfilled or to be given to
Trustee pursuant to the Loan Documents, including
without limitation, any deed, conveyance, instrument,
officer's certificate, balance sheet, statement of
profit and loss or other financial statement, survey,
appraisal, or insurance policy, Trustee shall not be
deemed to have warranted, consented to, or affirmed the
sufficiency, legality, effectiveness, or legal effect of
the same, or of any term, provision, or condition
thereof, and such acceptance or approval thereof shall
not be or constitute any warranty or affirmation with
respect thereto by Trustee.
5.10 COMPENSATION; EXCULPATION; INDEMNIFICATION.
(a) Trustor shall pay Trustee's fees and reimburse Trustee
for reasonable out-of-pocket expenses in the
administration of this trust, including reasonable
out-of-pocket attorneys' fees. Trustor shall pay to
Beneficiary reasonable compensation for services
rendered concerning this Deed of Trust, including
without limit any statement of amounts owing under any
Secured Obligation. Beneficiary shall not directly or
indirectly be liable to Trustor or any other person as a
consequence of (i) the exercise of the rights, remedies
or powers granted to Beneficiary in this Deed of Trust;
(ii) the failure or refusal of Beneficiary to perform or
discharge any obligation or liability of Trustor under
any agreement related to the Subject Property or
Collateral or under this Deed of Trust; or (iii) any
loss sustained by Trustor or any third party resulting
from Beneficiary's failure (except by Beneficiary's
gross negligence or willful misconduct) to lease the
Subject Property after a Default (hereinafter defined)
or from any other act or omission (except for
Beneficiary's gross negligence or willful misconduct) of
Beneficiary in managing the Subject Property after a
Default unless the loss is caused by the gross
negligence or willful misconduct of Beneficiary and no
such liability shall be asserted against or imposed upon
Beneficiary, and all such liability is hereby expressly
waived and released by Trustor.
(b) SUBJECT TO THE PROVISIONS OF SECTION 2.10 OF THE LOAN
AGREEMENT, TRUSTOR INDEMNIFIES TRUSTEE AND BENEFICIARY
AGAINST, AND HOLDS TRUSTEE AND BENEFICIARY HARMLESS
FROM, ALL LOSSES, DAMAGES, LIABILITIES, CLAIMS, CAUSES
OF ACTION, JUDGMENTS, COURT COSTS, ATTORNEYS' FEES AND
OTHER LEGAL EXPENSES, COST OF EVIDENCE OF TITLE, COST OF
EVIDENCE OF VALUE, AND OTHER EXPENSES WHICH EITHER MAY
SUFFER OR INCUR: (i) BY REASON OF THIS DEED OF TRUST;
(ii) BY REASON OF THE EXECUTION OF THIS TRUST OR IN
PERFORMANCE OF ANY
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ACT REQUIRED OR PERMITTED HEREUNDER OR BY LAW; (iii) AS
A RESULT OF ANY FAILURE OF TRUSTOR TO PERFORM TRUSTOR'S
OBLIGATIONS; OR (iv) BY REASON OF ANY ALLEGED OBLIGATION
OR UNDERTAKING ON BENEFICIARY'S PART TO PERFORM OR
DISCHARGE ANY OF THE REPRESENTATIONS, WARRANTIES,
CONDITIONS, COVENANTS OR OTHER OBLIGATIONS CONTAINED IN
ANY OTHER DOCUMENT RELATED TO THE SUBJECT PROPERTY.
(c) Trustor shall pay all amounts and indebtedness arising
under this Section 5.10 immediately upon demand by
Trustee or Beneficiary together with interest thereon
from the date the indebtedness arises at the rate of
interest then applicable to the principal balance of the
Note as specified therein.
5.11 SUBSTITUTION OF TRUSTEES. From time to time, by a writing,
signed and acknowledged by Beneficiary and recorded in the
Office of the Recorder of the County in which the Subject
Property is situated, Beneficiary may appoint another trustee to
act in the place and stead of Trustee or any successor. Such
writing shall set forth any information required by law. The
recordation of such instrument of substitution shall discharge
Trustee herein named and shall appoint the new trustee as the
trustee hereunder with the same effect as if originally named
Trustee herein. A writing recorded pursuant to the provisions of
this Section 5.11 shall be conclusive proof of the proper
substitution of such new Trustee.
5.12 DUE ON SALE OR ENCUMBRANCE. If the Subject Property or any
interest therein shall be sold, transferred (including, without
limitation, through sale or transfer of a majority or
controlling interest of the corporate stock of Trustor, other
than as results from issuances of publicly traded stock duly
registered with the Securities and Exchange Commission),
mortgaged, assigned, further encumbered or leased, whether
directly or indirectly, whether voluntarily, involuntarily or by
operation of law, without the prior written consent of
Beneficiary, THEN Beneficiary, in its sole discretion, may
declare all Secured Obligations immediately due and payable.
5.13 RELEASES, EXTENSIONS, MODIFICATIONS AND ADDITIONAL SECURITY.
Without notice to or the consent, approval or agreement of any
persons or entities having any interest at any time in the
Subject Property and Collateral or in any manner obligated under
the Secured Obligations ("Interested Parties"), Beneficiary may,
from time to time, release any person or entity from liability
for the payment or performance of any Secured Obligation, take
any action or make any agreement extending the maturity or
otherwise altering the terms or increasing the amount of any
Secured Obligation, or accept additional security or release all
or a portion of the Subject Property and Collateral and other
security for the Secured Obligations. None of the foregoing
actions shall release or reduce the personal liability of any of
said Interested Parties, or release or impair the priority of
the lien of and security interests created by this Deed of Trust
upon the Subject Property and Collateral.
5.14 RECONVEYANCE. Upon Beneficiary's written request, and upon
surrender to Trustee for cancellation of this Deed of Trust or a
certified copy thereof and any note, instrument, or instruments
setting forth all obligations secured hereby, Trustee shall
reconvey, without warranty, the Subject Property or that portion
thereof then held hereunder. To the extent permitted by law, the
reconveyance may describe the grantee as "the person or persons
legally entitled thereto" and the recitals of any matters or
facts in any reconveyance executed hereunder shall be conclusive
proof of the truthfulness thereof. Neither Beneficiary nor
Trustee shall have any duty to determine the rights of persons
claiming to be rightful grantees of any reconveyance. When the
Subject Property has been fully reconveyed, the last such
reconveyance shall operate as a reassignment of all future
rents, issues and profits of the Subject Property to the person
or persons legally entitled thereto.
5.15 SUBROGATION. Beneficiary shall be subrogated to the lien of all
encumbrances, whether released of record or not, paid in whole
or in part by Beneficiary pursuant to the Loan Documents or by
the proceeds of any loan secured by this Deed of Trust.
5.16 RIGHT OF INSPECTION. Beneficiary, its agents and employees, may
enter the Subject Property at any reasonable time for the
purpose of inspecting the Subject Property and Collateral and
ascertaining Trustor's compliance with the terms hereof.
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ARTICLE 6. DEFAULT PROVISIONS
6.1 DEFAULT. For all purposes hereof, the term "Default" shall mean
(a) at Beneficiary's option, the failure of Trustor to make any
payment of principal or interest on the Note or to pay any other
amount due hereunder or under the Note when the same is due and
payable, whether at maturity, by acceleration or otherwise; (b)
the failure of Trustor to perform any material non-monetary
obligation hereunder, or the failure to be true in any material
respects of any representation or warranty of Trustor contained
herein and the continuance of such failure for ten (10) days
after notice, or within any longer grace period, if any, allowed
in the Loan Agreement for such failure, or (c) the existence of
any Default as defined in the Loan Agreement.
6.2 RIGHTS AND REMEDIES. Subject to the provisions of Section 2.10
of the Loan Agreement, at any time after Default, Beneficiary
and Trustee shall each have all the following rights and
remedies:
(a) With or without notice, to declare all Secured
Obligations immediately due and payable;
(b) With or without notice, and without releasing Trustor
from any Secured Obligation, and without becoming a
mortgagee in possession, to cure any breach or Default
of Trustor and, in connection therewith, to enter upon
the Subject Property and do such acts and things as
Beneficiary or Trustee deem necessary or desirable to
protect the security hereof, including, without
limitation: (i) to appear in and defend any action or
proceeding purporting to affect the security of this
Deed of Trust or the rights or powers of Beneficiary or
Trustee under this Deed of Trust; (ii) to pay, purchase,
contest or compromise any encumbrance, charge, lien or
claim of lien which, in the sole judgment of either
Beneficiary or Trustee, is or may be senior in priority
to this Deed of Trust, the judgment of Beneficiary or
Trustee being conclusive as between the parties hereto;
(iii) to obtain insurance; (iv) to pay any premiums or
charges with respect to insurance required to be carried
under this Deed of Trust; or (v) to employ counsel,
accountants, contractors and other appropriate persons.
(c) To commence and maintain an action or actions in any
court of competent jurisdiction to foreclose this
instrument as a mortgage or to obtain specific
enforcement of the covenants of Trustor hereunder, and
Trustor agrees that such covenants shall be specifically
enforceable by injunction or any other appropriate
equitable remedy and that for the purposes of any suit
brought under this subparagraph, Trustor waives the
defense of laches and any applicable statute of
limitations;
(d) To apply to a court of competent jurisdiction for and
obtain appointment of a receiver of the Subject Property
as a matter of strict right and without regard to the
adequacy of the security for the repayment of the
Secured Obligations, the existence of a declaration that
the Secured Obligations are immediately due and payable,
or the filing of a notice of default, and Trustor hereby
consents to such appointment;
(e) To enter upon, possess, manage and operate the Subject
Property or any part thereof, to take and possess all
documents, books, records, papers and accounts of
Trustor or the then owner of the Subject Property, to
make, terminate, enforce or modify Leases of the Subject
Property upon such terms and conditions as Beneficiary
deems proper, to make repairs, alterations and
improvements to the Subject Property as necessary, in
Trustee's or Beneficiary's sole judgment, to protect or
enhance the security hereof;
(f) To execute a written notice of such Default and of its
election to cause the Subject Property to be sold to
satisfy the Secured Obligations. As a condition
precedent to any such sale, Trustee shall give and
record such notice as the law then requires. When the
minimum period of time required by law after such notice
has elapsed, Trustee, without notice to or demand upon
Trustor except as required by law, shall sell the
Subject Property at the time and place of sale fixed by
it in the notice of sale, at one or several sales,
either as a whole or in separate parcels and in such
manner and order, all as Beneficiary in its sole
discretion may determine, at public auction to the
highest bidder for cash, in lawful money of the United
States, payable at time of sale. Neither Trustor nor any
other person or
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entity other than Beneficiary shall have the right to
direct the order in which the Subject Property is sold.
Subject to requirements and limits imposed by law,
Trustee may from time to time postpone sale of all or
any portion of the Subject Property by public
announcement at such time and place of sale. Trustee
shall deliver to the purchaser at such sale a deed
conveying the Subject Property or portion thereof so
sold, but without any covenant or warranty, express or
implied. The recitals in the deed of any matters or
facts shall be conclusive proof of the truthfulness
thereof. Any person, including Trustee, Trustor or
Beneficiary may purchase at the sale;
(g) To resort to and realize upon the security hereunder and
any other security now or later held by Beneficiary
concurrently or successively and in one or several
consolidated or independent judicial actions or lawfully
taken non-judicial proceedings, or both, and to apply
the proceeds received upon the Secured Obligations all
in such order and manner as Trustee and Beneficiary, or
either of them, determine in their sole discretion.
(h) Upon sale of the Subject Property at any judicial or
non-judicial foreclosure, Beneficiary may credit bid (as
determined by Beneficiary in its sole and absolute
discretion) all or any portion of the Secured
Obligations. In determining such credit bid, Beneficiary
may, but is not obligated to, take into account all or
any of the following: (i) appraisals of the Subject
Property as such appraisals may be discounted or
adjusted by Beneficiary in its sole and absolute
underwriting discretion; (ii) expenses and costs
incurred by Beneficiary with respect to the Subject
Property prior to foreclosure; (iii) expenses and costs
which Beneficiary anticipates will be incurred with
respect to the Subject Property after foreclosure, but
prior to resale, including, without limitation, costs of
structural reports and other due diligence, costs to
carry the Subject Property prior to resale, costs of
resale (e.g. commissions, attorneys' fees, and taxes),
costs of any hazardous materials clean-up and
monitoring, costs of deferred maintenance, repair,
refurbishment and retrofit, costs of defending or
settling litigation affecting the Subject Property, and
lost opportunity costs (if any), including the time
value of money during any anticipated holding period by
Beneficiary; (iv) declining trends in real property
values generally and with respect to properties similar
to the Subject Property; (v) anticipated discounts upon
resale of the Subject Property as a distressed or
foreclosed property; (vi) the fact of additional
collateral (if any), for the Secured Obligations; and
--- (vii) such other factors or matters that Beneficiary
(in its sole and absolute discretion) deems appropriate.
In regard to the above, Trustor acknowledges and agrees
that: (w) Beneficiary is not required to use any or all
of the foregoing factors to determine the amount of its
credit bid; (x) this Section does not impose upon
Beneficiary any additional obligations that are not
imposed by law at the time the credit bid is made; (y)
the amount of Beneficiary's credit bid need not have any
relation to any loan-to-value ratios specified in the
Loan Documents or previously discussed between Trustor
and Beneficiary; and (z) Beneficiary's --- credit bid
may be (at Beneficiary's sole and absolute discretion)
higher or lower than any appraised value of the Subject
Property.
6.3 APPLICATION OF FORECLOSURE SALE PROCEEDS. After deducting all
reasonable out-of-pocket costs, fees and expenses of Trustee,
and of this trust, including, without limitation, cost of
evidence of title and attorneys' fees in connection with sale
and costs and expenses of sale and of any judicial proceeding
wherein such sale may be made, Trustee shall apply all proceeds
of any foreclosure sale: (a) to payment of all sums expended by
Beneficiary under the terms hereof and not then repaid, with
accrued interest at the rate of interest specified in the Note
to be applicable on or after maturity or acceleration of the
Note; (b) to payment of all other Secured Obligations; and (c)
the remainder, if any, to the person or persons legally entitled
thereto.
6.4 APPLICATION OF OTHER SUMS. All sums received by Beneficiary
under Section 6.2 or Section 3.2, less all costs and expenses
incurred by Beneficiary or any receiver under Section 6.2 or
Section 3.2, including, without limitation, attorneys' fees,
shall be applied in payment of the Secured Obligations in such
order as Beneficiary shall determine in its sole discretion;
provided, however, Beneficiary shall have no liability for funds
not actually received by Beneficiary.
6.5 NO CURE OR WAIVER. Neither Beneficiary's nor Trustee's nor any
receiver's entry upon and taking possession of all or any part
of the Subject Property and Collateral, nor any collection of
rents, issues,
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profits, insurance proceeds, condemnation proceeds or damages,
other security or proceeds of other security, or other sums, nor
the application of any collected sum to any Secured Obligation,
nor the exercise or failure to exercise of any other right or
remedy by Beneficiary or Trustee or any receiver shall cure or
waive any breach, Default or notice of default under this Deed
of Trust, or nullify the effect of any notice of default or sale
(unless all Secured Obligations then due have been paid and
performed and Trustor has cured all other defaults), or impair
the status of the security, or prejudice Beneficiary or Trustee
in the exercise of any right or remedy, or be construed as an
affirmation by Beneficiary of any tenancy, lease or option or a
subordination of the lien of or security interests created by
this Deed of Trust.
6.6 PAYMENT OF COSTS, EXPENSES AND ATTORNEYS' FEES. Trustor agrees
to pay to Beneficiary immediately and without demand all
reasonable out-of-pocket costs and expenses incurred by Trustee
and Beneficiary pursuant to Section 6.2 (including, without
limitation, reasonable out-of-pocket court costs and attorneys'
fees, whether incurred in litigation or not) with interest from
the date of expenditure until said sums have been paid at the
rate of interest then applicable to the principal balance of the
Note as specified therein. In addition, Trustor shall pay to
Trustee all Trustee's reasonable out-of-pocket fees hereunder
and shall reimburse Trustee for all reasonable out-of-pocket
expenses incurred in the administration of this trust,
including, without limitation, any attorneys' fees.
6.7 POWER TO FILE NOTICES AND CURE DEFAULTS. Trustor hereby
irrevocably appoints Beneficiary and its successors and assigns,
as its attorney-in-fact, which agency is coupled with an
interest, (a) to execute and/or record any notices of
completion, cessation of labor, or any other notices that
Beneficiary deems appropriate to protect Beneficiary's interest,
(b) upon the issuance of a deed pursuant to the foreclosure of
the lien of this Deed of Trust or the delivery of a deed in lieu
of foreclosure, to execute all instruments of assignment or
further assurance with respect to the Subject Property and
Collateral, Leases and Payments in favor of the grantee of any
such deed, as may be necessary or desirable for such purpose,
(c) to prepare, execute and file or record financing statements,
continuation statements, applications for registration and like
papers necessary to create, perfect or preserve Beneficiary's
security interests and rights in or to any of the Subject
Property and Collateral, and (d) upon the occurrence of an
event, act or omission which, with notice or passage of time or
both, would constitute a Default, Beneficiary may perform any
obligation of Trustor hereunder; provided, however, that: (i)
Beneficiary as such attorney-in-fact shall only be accountable
for such funds as are actually received by Beneficiary; and (ii)
Beneficiary shall not be liable to Trustor or any other person
or entity for any failure to act (whether such failure
constitutes negligence) by Beneficiary under this Section.
ARTICLE 7. MISCELLANEOUS PROVISIONS
7.1 ADDITIONAL PROVISIONS. The Loan Documents contain or incorporate
by reference the entire agreement of the parties with respect to
matters contemplated herein and supersede all prior
negotiations. The Loan Documents grant further rights to
Beneficiary and contain further agreements and affirmative and
negative covenants by Trustor which apply to this Deed of Trust
and to the Subject Property and Collateral and such further
rights and agreements are incorporated herein by this reference.
7.2 MERGER. No merger shall occur as a result of Beneficiary's
acquiring any other estate in, or any other lien on, the Subject
Property unless Beneficiary consents to a merger in writing.
7.3 INTENTIONALLY OMITTED.
7.4 INTENTIONALLY OMITTED.
7.5 WAIVER OF MARSHALLING RIGHTS. Trustor, for itself and for all
parties claiming through or under Trustor, and for all parties
who may acquire a lien on or interest in the Subject Property
and Collateral, hereby waives all rights to have the Subject
Property and Collateral and/or any other property, which is now
or later may be security for any Secured Obligation ("Other
Property") marshalled upon any foreclosure of the lien of this
Deed of Trust or on a foreclosure of any other lien or security
interest against any security for any of the Secured
Obligations. Beneficiary shall have the right to sell, and any
court in which foreclosure
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proceedings may be brought shall have the right to order a sale
of, the Subject Property and any or all of the Collateral or
Other Property as a whole or in separate parcels, in any order
that Beneficiary may designate.
7.6 RULES OF CONSTRUCTION. When the identity of the parties or other
circumstances make it appropriate the masculine gender includes
the feminine and/or neuter, and the singular number includes the
plural. The term "Subject Property" and "Collateral" means all
and any part of the Subject Property and Collateral,
respectively, and any interest in the Subject Property and
Collateral, respectively.
7.7 SUCCESSORS IN INTEREST. The terms, covenants, and conditions
herein contained shall be binding upon and inure to the benefit
of the heirs, successors and assigns of the parties hereto;
provided, however, that this Section 7.7 does not waive or
modify the provisions of Section 5.12.
7.8 EXECUTION IN COUNTERPARTS. To facilitate execution, this
document may be executed in as many counterparts as may be
convenient or required. It shall not be necessary that the
signature or acknowledgment of, or on behalf of, each party, or
that the signature of all persons required to bind any party, or
the acknowledgment of such party, appear on each counterpart.
All counterparts shall collectively constitute a single
document. It shall not be necessary in making proof of this
document to produce or account for more than a single
counterpart containing the respective signatures of, or on
behalf of, and the respective acknowledgments of, each of the
parties hereto. Any signature or acknowledgment page to any
counterpart may be detached from such counterpart without
impairing the legal effect of the signatures or acknowledgments
thereon and thereafter attached to another counterpart identical
thereto except having attached to it additional signature or
acknowledgment pages.
7.9 CALIFORNIA LAW. This Deed of Trust shall be construed in
accordance with the laws of the State of California, except to
the extent that federal laws preempt the laws of the State of
California.
7.10 INCORPORATION. Exhibit A and Schedule 1, as attached, are
incorporated into this Deed of Trust by this reference.
7.11 NOTICES. All notices, demands or other communications required
or permitted to be given pursuant to the provisions of this Deed
of Trust shall be in writing and shall be considered as properly
given if delivered personally or sent by first class United
States Postal Service mail, postage prepaid, except that notice
of Default may be sent by certified mail, return receipt
requested, or by Overnight Express Mail or by overnight
commercial courier service, charges prepaid. Notices so sent
shall be effective three (3) days after mailing, if mailed by
first class mail, and otherwise upon receipt at the address set
forth below; provided, however, that non-receipt of any
communication as the result of any change of address of which
the sending party was not notified or as the result of a refusal
to accept delivery shall be deemed receipt of such
communication. For purposes of notice, the address of the
parties shall be:
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Trustor: Communications & Power Industries Holding Corporation
000 Xxxxxx Xxx
Xxxx Xxxx, XX 00000-1110
Attn: Xxxx X. Xxxxxx
With a copy to: Xxxxxxx Xxxxx & Partners, L.P.
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
With a copy to: Irell & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxx
Trustee: American Securities Company, a California corporation
Legal Department
000 Xxxxxx, 0xx xxxxx
Xxx Xxxxxxxxx, XX 00000
MAC 0149-075
Attn: Real Estate Group Counsel
(w/ reference to Loan #1440 and Beneficiary AU #2034)
Beneficiary: XXXXX FARGO BANK, NATIONAL ASSOCIATION
Real Estate Group (AU #0000)
000 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
Loan #: 1440
With a copy to: Xxxxx Fargo Bank, National Association
Disbursement and Operations Center
0000 Xxxx Xxxx Xxxxx, Xxxxx 000
Xx Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Any party shall have the right to change its address for notice hereunder to any
other location within the continental United States by the giving of ten (10)
days notice to the other party in the manner set forth hereinabove. Trustor
shall forward to Beneficiary, without delay, any notices, letters or other
communications delivered to the Subject Property or to Trustor naming
Beneficiary, "Lender" or any similar designation as addressee, or which could
reasonably be deemed to affect the ability of Trustor to perform its obligations
to Beneficiary under the Note or the Loan Agreement.
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IN WITNESS WHEREOF, Xxxxxxx has executed this Deed of Trust as of the day and
year set forth above.
COMMUNICATIONS & POWER INDUSTRIES HOLDING
CORPORATION, a Delaware corporation
By:
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Name:
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Its:
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(ALL SIGNATURES MUST BE ACKNOWLEDGED)
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EXHIBIT A
Loan No. 1440
DESCRIPTION OF SUBJECT PROPERTY
Exhibit A to Deed of Trust with Absolute Assignment of Leases and Rents,
Security Agreement and Fixture Filing executed by COMMUNICATIONS & POWER
INDUSTRIES HOLDING CORPORATION, as Trustor, to AMERICAN SECURITIES COMPANY, as
Trustee, for the benefit of XXXXX FARGO BANK, NATIONAL ASSOCIATION, as
Beneficiary, dated as of December __, 2000.
The land referred to herein is situated in the County of San Mateo, State of
California, and is described as follows:
All the real property located in the City of San Xxxxxx, County of San Mateo,
State of California, all of Parcel 1 as shown on the Parcel Map recorded in
Volume 20 of Parcel Maps at page 23 in the Records of said County, described in
metes as follows:
Beginning at Northerly corner of said Xxxxxx; thence through the following
numbered courses:
1) South 37(0)56' 04" East 739.82 feet to a curve to the right with a
radius of 447.00 feet
2) along said curve through a central angle of 33(0)54' 48" an arc distance
of 264.58 feet
3) South 04(0)01' 16" East 182.93 feet to a curve to the left with a radius
of 553.00 feet
4) along said curve through a central angle of 02(0)38' 43" an arc distance
of 25.53 feet
5) South 46(0)51' 36" West 476.39 feet
6) North 42(0)08' 24" West 1153.65 feet
7) North 47(0)51' 36" East 752.91 feet to the point of beginning.
A.P. No.: 000-000-000 JPN 046 005 051 02 A
000-000-000 046 005 051 07 A
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SCHEDULE 1
Loan No. 1440
SCHEDULE OF LEASES
Schedule 1 to Deed of Trust with Absolute Assignment of Leases and Rents,
Security Agreement and Fixture Filing executed by COMMUNICATIONS & POWER
INDUSTRIES HOLDING CORPORATION, as Trustor, to AMERICAN SECURITIES COMPANY, as
Trustee, for the benefit of XXXXX FARGO BANK, NATIONAL ASSOCIATION, as
Beneficiary, dated as of December __, 2000.
1. That certain Standard Industrial/Commercial Single-Tenant Lease between
Communications & Power Industries Holding Corporation, as "Lessor", and
Communications & Power Industries, Inc., as "Lessee", dated December 1,
2000 for the Subject Property, including those certain 320,000 square
foot (approximately) premises located at the Subject Property, together
with all exhibits and addenda attached thereto.
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SCHEDULE 1
Loan No. 1440
STATE OF CALIFORNIA
COUNTY OF SS.
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On this day of December, 2000, before me, a Notary Public in and for the State
of California, personally appeared personally known to me (or proved on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal
Signature
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My commission expires .
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