EXHIBIT 4.2
[Colorado]
THE INFORMATION ON THIS COVER PAGE IS PART OF THIS DEED OF TRUST
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Date: June 30, 2000
FEE AND LEASEHOLD DEED OF TRUST, ASSIGNMENT OF LEASES
AND RENTS AND SECURITY AGREEMENT AND FIXTURE FILING
("this Deed")
FROM
APPLE SUITES, INC.,
a Virginia corporation
("Fee Owner")
AND
APPLE SUITES MANAGEMENT, INC.,
a Virginia corporation
("Lessee")
Address of Fee Owner and Lessee: 000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
TO
THE PUBLIC TRUSTEE IN AND FOR BOULDER COUNTY, COLORADO AND
ANY SUCCESSOR TRUSTEE APPOINTED PURSUANT TO THE PROVISIONS OF
SECTION 3.03 HEREOF OR OF APPLICABLE LAW
("Trustee")
Address of Trustee: As fixed pursuant to the Colorado statutes creating and
governing the office of "Public Trustee"
FOR THE BENEFIT OF
PROMUS HOTELS, INC.,
a Delaware corporation
("Beneficiary")
Address of Beneficiary: 000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Note Amount: $91,350,000
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This instrument prepared by, and after recording please return to:
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxx, Esq.
TABLE OF CONTENTS
Page
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RECITAL...................................................................1
CERTAIN DEFINITIONS AND RULES OF CONSTRUCTION.............................2
GRANTING CLAUSE...........................................................3
ARTICLE I COVENANTS OF GRANTOR...................................5
Section 1.01. (a) Warranty of Title; Power and Authority...........5
(b) Hazardous Materials..............................6
(c) Flood Hazard Area................................6
Section 1.02. (a) Further Assurances...............................6
(b) Information Reporting and Back-up Withholding....7
Section 1.03. (a) Filing and Recording of Documents................7
(b) Filing and Recording Fees and Other Charges......7
Section 1.04. Payment and Performance of Loan Documents..............7
Section 1.05. Maintenance of Existence; Compliance with Laws.........7
Section 1.06. After-Acquired Property................................8
Section 1.07. (a) Payment of Taxes and Other Charges...............8
(b) Payment of Mechanics and Materialmen.............9
(c) Good Faith Contests..............................9
Section 1.08. Taxes on Trustee or Beneficiary........................9
Section 1.09. Insurance..............................................9
Section 1.10. Protective Advances by Beneficiary....................13
Section 1.11. (a) Visitation and Inspection.......................13
(b) Financial and Other Information.................13
(c) Estoppel Certificates...........................13
Section 1.12. Maintenance of Premises and Improvements..............13
Section 1.13. Condemnation..........................................14
Section 1.14. Leases................................................14
Section 1.15. Premises Documents....................................15
Section 1.16. Trust Fund; Lien Laws.................................15
Section 1.17. Expenses of Trustee...................................16
ARTICLE II EVENTS OF DEFAULT AND REMEDIES........................16
Section 2.01. Events of Default and Certain Remedies................16
Section 2.02. Other Matters Concerning Sales........................20
Section 2.03. Payment of Amounts Due................................23
Section 2.04. Actions; Receivers....................................24
Section 2.05. Beneficiary's Right to Possession.....................24
Section 2.06. Remedies Cumulative...................................25
(i)
Page
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Section 2.07. Moratorium Laws; Right of Redemption..................25
Section 2.08. Intentionally Omitted.................................25
Section 2.09. Beneficiary's Rights Concerning Application of Amounts
Collected.............................................25
Section 2.10. Additional Advances...................................25
ARTICLE III CONCERNING TRUSTEE....................................26
Section 3.01. Trustee's Performance.................................26
Section 3.02. Resignation by Trustee................................26
Section 3.03. Removal of Trustee; Successors........................26
Section 3.04. Limitations Imposed by Law............................26
ARTICLE IV MISCELLANEOUS.........................................27
Section 4.01. Assignment of Rents...................................27
Section 4.02. Security Agreement and Fixture Filing.................27
Section 4.03. Application of Certain Payments.......................28
Section 4.04. Severability..........................................28
Section 4.05. Modifications and Waivers in Writing..................28
Section 4.06. Notices...............................................29
Section 4.07. Successors and Assigns................................29
Section 4.08. Limitation on Interest................................29
Section 4.09. Counterparts..........................................29
Section 4.10. Substitute Deeds......................................29
Section 4.11. Beneficiary's Sale of Interests in Loan...............29
Section 4.12. No Merger of Interests................................29
Section 4.13. CERTAIN WAIVERS.......................................30
Section 4.14. GOVERNING LAW.........................................30
(ii)
RECITAL
Beneficiary, Hampton Inns, Inc. ("Hampton") and Promus Hotels Florida,
Inc. ("Promus Florida"), as sellers, and Fee Owner, as buyer, have heretofore
entered into an Agreement of Sale dated as of August 6, 1999 (as amended, the
"First Agreement of Sale") for the purchase of certain premises more
particularly described therein (the "Initial Premises"). Hampton, as seller, and
Fee Owner, as buyer, have entered into an Agreement of Sale dated as of October
5, 1999 (as amended, the "Second Agreement of Sale") for the purchase of certain
premises more particularly described therein (the "Additional Premises";
together with the Initial Premises, collectively, the "Existing Premises").
Beneficiary, Hampton and Promus Florida, as sellers, and Fee Owner, as buyer,
have entered into an Agreement of Sale dated as of November 22, 1999 (as
amended, the "Third Agreement of Sale"; together with the First Agreement of
Sale and the Second Agreement of Sale, collectively, the "Agreement of Sale")
for the purchase of, among other premises, the premises described in SCHEDULE A
attached hereto and made a part hereof. Fee Owner has acquired and is the owner
of the premises described in SCHEDULE A and Lessee is the owner of a leasehold
interest therein. Lessee acknowledges that it will derive substantial benefit
from the making of the loans contemplated in the Agreement of Sale and further
acknowledges that the obligation of Beneficiary to make such loans is
conditioned upon, among other things, the execution and delivery by Lessee of
this Deed. In connection with the purchase of the Existing Premises by Fee Owner
(or its indirect wholly-owned subsidiary) from Beneficiary (or its affiliates)
pursuant to the First Agreement of Sale and the Second Agreement of Sale, Fee
Owner has borrowed (i) the sum of $26,625,000 and has executed and delivered to
Beneficiary its note, dated September 20, 1999, obligating it to pay the sum of
$26,625,000, with interest thereon as therein provided (the "First Note") and
(ii) the sum of $7,350,000 and has executed and delivered to Beneficiary its
note, dated October 5, 1999, obligating it to pay the sum of $7,350,000, with
interest thereon as therein provided (the "Second Note"). Prior to the date
hereof, in connection with the purchase of certain premises described in the
Third Agreement of Sale by Fee Owner (or its direct or indirect wholly-owned
subsidiary), Fee Owner has borrowed the sum of $46,211,250 and has executed and
delivered to Beneficiary its note, dated November 29, 1999, obligating it to pay
the sum of $30,210,000, with interest as therein provided, its note, dated
December 22, 1999, obligating it to pay the sum of $4,384,500, with interest as
therein provided, and its note, dated May 8, 2000, obligating it to pay the sum
of $11,616,750, with interest as therein provided (collectively, the "Interim
Notes"). In connection with the purchase on the date hereof of the Premises, Fee
Owner will borrow $11,163,750 from Beneficiary and has executed and delivered to
Beneficiary its note, dated the date hereof, obligating it to pay the sum of
$11,163,750, with interest thereon as therein provided (the "Fourth Note";
together with the First Note, the Second Note, the Interim Notes and as any
thereof may hereafter be amended, modified, extended, severed, assigned,
renewed, replaced or restated, hereinafter, the "Note"). The notes comprising
the Note have different maturities with the latest to mature being April 28,
2001. In order to secure the payment of the Note, Fee Owner and Lessee, as
grantors, have duly authorized the execution and delivery of this Deed. For
purposes of this Deed, "Grantor" shall mean Fee Owner and Lessee but only to the
extent of their respective interests in the Mortgaged Property (as herein
defined) and their respective obligations under the Note and Ground Lease.
CERTAIN DEFINITIONS AND RULES OF CONSTRUCTION
Grantor, Trustee and Beneficiary agree that, unless the context
otherwise specifies or requires, the following terms shall have the meanings
herein specified.
"Chattels" means all fixtures, furnishings, fittings, appliances,
apparatus, equipment, building materials and components, machinery and articles
of personal property, of whatever kind or nature, including any replacements,
proceeds or products thereof and additions thereto, other than those owned by
lessees, now or at any time hereafter intended to be or actually affixed to,
attached to, placed upon, or used in any way in connection with the complete and
comfortable use, enjoyment, development, occupancy or operation of the Premises,
and whether located on or off the Premises.
"Default Rate" means the rate (or, if more than one, the highest of the
rates) of interest per annum provided in the Note plus 5%, but in no event to
exceed the maximum rate allowed by law.
"Events of Default" means the events and circumstances described as
such in Section 2.01.
"Ground Lease" means the Master Hotel Lease Agreement dated as of
September 20, 1999 between Fee Owner and Lessee covering, among other
properties, the Premises described in SCHEDULE A, as the same may be amended,
supplemented or modified from time to time.
"Hazardous Materials" means any pollutant, effluents, emissions,
contaminants, toxic or hazardous wastes, materials or substances, as any of
those terms are defined from time to time in or for the purposes of any relevant
environmental law, rule, regulation, code, permit, order, notice, demand letter
or other binding determination (hereinafter, "Environmental Laws") including,
without limitation, asbestos fibers and friable asbestos, polychlorinated
biphenyls and any petroleum or hydrocarbon-based products or derivatives, in
each case in amounts in violation of applicable Environmental Laws.
"Improvements" means all structures or buildings, and replacements
thereof, now or hereafter located upon the Premises, including all plant
equipment, apparatus, machinery and fixtures of every kind and nature whatsoever
forming part of said structures or buildings.
"lease" or "leases" means any lease or leases of all or any portion of
the Premises, whether affecting the fee or leasehold portion thereof.
"Loan" means the loan made by Beneficiary to Fee Owner evidenced by the
Note and secured hereby.
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"Premises" means the premises described in SCHEDULE A, including the
leasehold interest therein created by the Ground Lease, and including all of the
easements, rights, privileges and appurtenances (including air or development
rights) thereunto belonging or in anywise appertaining, and all of the estate,
right, title, interest, claim or demand whatsoever of Grantor therein and in the
streets and ways adjacent thereto, either in law or in equity, in possession or
expectancy, now or hereafter acquired, and as used herein shall, unless the
context otherwise requires, be deemed to include the Improvements.
"Premises Documents" means all reciprocal easement or operating
agreements, declarations of covenants, conditions or restrictions, declarations
of condominium, developer's or utility agreements with any village, town, county
or other governmental authority, and any similar such agreements or declarations
now or hereafter affecting the Premises or any part thereof.
All terms of this Deed which are not defined above shall have the
meaning set forth elsewhere in this Deed.
Except as expressly indicated otherwise, when used in this Deed (i)
"or" is not exclusive, (ii) "hereunder", "herein", "hereof" and the like refer
to this Deed as a whole, (iii) "Article", "Section" and "Schedule" refer to
Articles, Sections and Schedules of this Deed, (iv) terms defined in the
singular have a correlative meaning when used in the plural and vice versa, (v)
a reference to a law or statute includes any amendment or modification to, or
replacement of, such law or statute and (vi) a reference to an agreement,
instrument or document means such agreement, instrument or document as the same
may be amended, modified or supplemented from time to time in accordance with
its terms and as permitted hereby and by the other documents executed or
delivered to Beneficiary in connection with the Loan. The cover page and all
Schedules hereto are incorporated herein and made a part hereof. Any table of
contents and the headings and captions herein are for convenience only and shall
not affect the interpretation or construction hereof.
GRANTING CLAUSE
NOW, THEREFORE, Grantor, in consideration of the premises and in order
to secure the payment of both the principal of, and the interest and any other
sums payable under, the Note or this Deed and the performance and observance of
all the provisions hereof and of the Note, hereby gives, grants, bargains,
sells, warrants, aliens, remises, releases, conveys, assigns, transfers,
mortgages, hypothecates, deposits, pledges, sets over and confirms unto Trustee,
all its estate, right, title and interest in, to and under any and all of the
following described property (hereinafter, the "Mortgaged Property") whether now
owned or held or hereafter acquired:
(i) the Premises;
(ii) the Improvements;
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(iii) the Chattels;
(iv) the Premises Documents;
(v) all rents, royalties, issues, profits, revenue, income,
recoveries, reimbursements and other benefits of the Mortgaged Property
(hereinafter, the "Rents") and all leases of the Mortgaged Property or
portions thereof now or hereafter entered into and all right, title and
interest of Grantor thereunder, including, without limitation, cash or
securities deposited thereunder to secure performance by the lessees of
their obligations thereunder, whether such cash or securities are to be
held until the expiration of the terms of such leases or applied to one
or more of the installments of rent coming due immediately prior to the
expiration of such terms, and including any guaranties of such leases
and any lease cancellation, surrender or termination fees in respect
thereof, all subject, however, to the provisions of Section 4.01;
(vi) all (a) development work product prepared in connection
with the Premises, including, but not limited to, engineering,
drainage, traffic, soil and other studies and tests; water, sewer, gas,
electrical and telephone approvals, taps and connections; surveys,
drawings, plans and specifications; and subdivision, zoning and
platting materials; (b) building and other permits, rights, licenses
and approvals relating to the Premises; and (c) contracts and
agreements (including, without limitation, contracts with architects
and engineers, construction contracts and contracts for the maintenance
or management of the Premises), contract rights, logos, trademarks,
trade names, copyrights and other general intangibles used or useful in
connection with the ownership, operation or occupancy of the Premises
or any part thereof;
(vii) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing into cash or liquidated claims,
including, without limitation, proceeds of insurance and condemnation
awards, and all rights of Grantor to refunds of real estate taxes and
assessments;
(viii) all revenue and income received by or on behalf of
Grantor resulting from the operation of the Premises as a hotel,
including all sums (1) paid by customers for the use of hotel rooms
located within the Premises, (2) derived from food and beverage
operations located within the Premises, (3) generated by other hotel
operations, including any parking, convention, sports and recreational
facilities and (4) business interruption insurance proceeds;
(ix) all accounts and accounts receivable, including all
present and future right to payment from any consumer credit or charge
card organization or entity (such as those organizations which sponsor
or administer the American Express, Xxxxx Xxxxxxx, Discover Card,
Diners Club, Visa and Master Card) arising out of the leasing and
operation of, or the business conducted at or in relation to, all or
any part of the Premises; and
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(x) any deposit, operating or other account including the entire
balance therein (now or hereafter existing) of Grantor containing
proceeds of the operation of the Premises with any banking or financial
institution and all money, instruments, securities, documents, chattel
paper, credits, demands, and any other property, rights, or interests
of Grantor relating to the operation of the Premises which at any time
shall come into the possession, custody or control of any banking or
financial institution.
TO HAVE AND TO HOLD unto Trustee, its successors and assigns forever.
IN TRUST, to secure the payment to Beneficiary of the principal of and
interest on the Note at the maturity thereof and all other sums due hereunder or
under the Note and the performance of all covenants and agreements herein and in
the Note, whereupon this Deed shall cease and be void and the Mortgaged Property
shall be released at the cost of Grantor.
ARTICLE I
COVENANTS OF GRANTOR
Grantor represents, except as known by Beneficiary or its affiliates to
the contrary, or disclosed to Beneficiary in connection with the sale of the
Mortgaged Property to Grantor, and Grantor covenants and agrees as follows:
Section 1.01. (a) Warranty of Title; Power and Authority. Grantor
warrants that, with respect to the fee interest in the Premises, it has a good
and marketable title to an indefeasible fee estate subject to no lien, charge or
encumbrance, that the Ground Lease is subject to no lien, charge or encumbrance
of any kind and is prior to all liens, charges and encumbrances whatsoever on
the fee interest of the landlord thereunder, except in either case such as are
listed as exceptions to title in the title policy insuring the lien hereof; and,
Grantor further warrants that, with respect to the leasehold interest in the
Premises, that it is the owner of a valid and subsisting interest as tenant
under the Ground Lease, that the Ground Lease is in full force and effect, there
are no defaults thereunder and no event has occurred or is occurring which after
notice or passage of time or both will result in such a default; that it owns
the Chattels, all leases and the Rents in respect of the Mortgaged Property and
all other personal property encumbered hereby free and clear of liens and
claims; and Grantor warrants that this Deed is and will remain a valid and
enforceable lien on the Mortgaged Property subject only to the exceptions
referred to above. Grantor has full power and lawful authority to subject the
Mortgaged Property to the lien hereof in the manner and form herein done or
intended hereafter to be done. Grantor will preserve such title, will preserve
such leasehold estate created by the Ground Lease and will forever warrant and
defend the same to Trustee and Beneficiary and will forever warrant and defend
the validity and priority of the lien hereof against the claims of all persons
and parties whomsoever. Grantor will perform or cause to be performed all of the
covenants and conditions required to be performed by it under the Ground Lease,
will do all things necessary to preserve unimpaired its rights thereunder, and
will not (i) enter into any agreement modifying or amending the Ground Lease
that would reduce the
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term of the Ground Lease, increase the amount of rent payable thereunder (except
as contemplated by the provisions of the Ground Lease) or have a material
adverse effect on the lien created by this Deed or the 0rights of Beneficiary
hereunder or (ii) for so long as the Ground Lease is in effect, release the
landlord thereunder from any obligations imposed upon it thereby. If Grantor
receives a notice of default under the Ground Lease, it shall immediately cause
a copy of such notice to be sent by registered United States mail to
Beneficiary.
(b) Hazardous Materials. To the best of Grantor's knowledge, Grantor
represents and warrants that (i) the Premises and the improvements thereon and
the surrounding areas are not currently and have never been subject to Hazardous
Materials or their effects, in each case in amounts in violation of applicable
Environmental Laws, (ii) neither it nor any portion of the Premises or
improvements thereon is in violation of, or subject to any existing, pending or
threatened investigation or proceeding by any governmental authorities under,
any Environmental Law, (iii) there are no claims, litigation, administrative or
other proceedings, whether actual or threatened, or judgments or orders,
concerning Hazardous Materials relating in any way to the Premises or the
improvements thereon and (iv) Grantor is not required by any Environmental Law
to obtain any permits or licenses to construct or use any improvements, fixtures
or equipment with respect to the Premises, or if any such permit or license is
required it has been obtained and is capable of being mortgaged and assigned
hereby. Grantor will comply with all applicable Environmental Laws and will, at
its sole cost and expense, promptly remove, or cause the removal of, any and all
Hazardous Materials or the effects thereof at any time identified as being on,
in, under or affecting the Premises.
(c) Flood Hazard Area. Grantor represents that neither the Premises nor
any part thereof is located in an area identified by the Secretary of the United
States Department of Housing and Urban Development or by any applicable federal
agency as having special flood hazards or, if it is, Grantor has obtained the
insurance required by Section 1.09.
Section 1.02. (a) Further Assurances. Grantor will, at its sole cost
and expense, do, execute, acknowledge and deliver all and every such further
acts, deeds, conveyances, mortgages, assignments, notices of assignment,
transfers and assurances as Trustee or Beneficiary shall from time to time
reasonably require, for the better assuring, conveying, assigning, transferring
and confirming unto Trustee the property and rights hereby conveyed or assigned
or intended now or hereafter so to be, or which Grantor may be or may hereafter
become bound to convey or assign to Trustee, or for carrying out the intention
or facilitating the performance of the terms hereof, or for filing, registering
or recording this Deed and, on demand, will execute and deliver, and hereby
authorizes Trustee or Beneficiary to execute and file in Grantor's name, to the
extent they may lawfully do so, one or more financing statements, chattel
mortgages or comparable security instruments, to evidence or perfect more
effectively Beneficiary's security interest in and the lien hereof upon the
Chattels and other personal property encumbered hereby.
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(b) Information Reporting and Back-up Withholding. Grantor will, at its
sole cost and expense, do, execute, acknowledge and deliver all and every such
acts, information reports, returns and withholding of monies as shall be
necessary or appropriate to comply fully, or to cause full compliance, with all
applicable information reporting and back-up withholding requirements of the
Internal Revenue Code of 1986 (including all regulations now or hereafter
promulgated thereunder) in respect of the Premises and all transactions related
to the Premises, and will at all times provide Beneficiary with satisfactory
evidence of such compliance and notify Beneficiary of the information reported
in connection with such compliance.
Section 1.03. (a) Filing and Recording of Documents. Grantor forthwith
upon the execution and delivery hereof, and thereafter from time to time, will
cause this Deed and any security instrument creating a lien or evidencing the
lien hereof upon the Chattels and each instrument of further assurance to be
filed, registered or recorded in such manner and in such places as may be
required by any present or future law in order to publish notice of and fully to
protect the lien hereof upon, and the title of Trustee to, the Mortgaged
Property.
(b) Filing and Recording Fees and Other Charges. Grantor will pay all
filing, registration or recording fees, and all expenses incident to the
execution and acknowledgment hereof, any deed of trust supplemental hereto, any
security instrument with respect to the Chattels, and any instrument of further
assurance, and any reasonable expenses (including attorneys' fees and
disbursements) incurred by Beneficiary in connection with the Loan, and will pay
all federal, state, county and municipal stamp taxes and other taxes, duties,
imposts, assessments and charges arising out of or in connection with the
execution and delivery of the Note, this Deed, any deed of trust supplemental
hereto, any security instrument with respect to the Chattels or any instrument
of further assurance.
Section 1.04. Payment and Performance of Loan Documents. Grantor will
punctually pay the principal and interest and all other sums to become due in
respect hereof and of the Note at the time and place and in the manner specified
therein, according to the true intent and meaning thereof, all in currency of
the United States of America which at the time of such payment shall be legal
tender for the payment of public and private debts. Grantor will duly and timely
comply with and perform all of the terms, provisions, covenants and agreements
contained in said documents and in all other documents or instruments executed
or delivered by Grantor to Beneficiary in connection with the Loan, and will
permit no failures of performance thereunder.
Section 1.05. Maintenance of Existence; Compliance with Laws. Grantor,
if other than a natural person, will, so long as it is owner of all or part of
the Mortgaged Property, do all things necessary to preserve and keep in full
force and effect its existence, franchises, rights and privileges as a business
or stock corporation, partnership, limited liability company, trust or other
entity under the laws of the state of its formation. Grantor will duly and
timely comply with all laws, regulations, rules, statutes, orders and decrees of
any governmental authority or court applicable to it or to the Mortgaged
Property or any part thereof.
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Section 1.06. After-Acquired Property. All right, title and interest of
Grantor in and to all extensions, improvements, betterments, renewals,
substitutes and replacements of, and all additions and appurtenances to, the
Mortgaged Property, hereafter acquired by, or released to, Grantor or
constructed, assembled or placed by Grantor on the Premises, and all conversions
of the security constituted thereby, immediately upon such acquisition, release,
construction, assembling, placement or conversion, as the case may be, and in
each such case, without any further deed of trust, conveyance, assignment or
other act by Grantor, shall become subject to the lien hereof as fully and
completely, and with the same effect, as though now owned by Grantor and
specifically described in the Granting Clause hereof, but at any and all times
Grantor will execute and deliver to Trustee or Beneficiary any and all such
further assurances, deeds of trust, conveyances or assignments thereof as
Trustee or Beneficiary may reasonably require for the purpose of expressly and
specifically subjecting the same to the lien hereof.
Section 1.07. (a) Payment of Taxes and Other Charges. Grantor, from
time to time before the same shall become delinquent, will pay and discharge all
taxes of every kind and nature (including real and personal property taxes and
income, franchise, withholding, profits and gross receipts taxes), all general
and special assessments, levies, permits, inspection and license fees, all water
and sewer rents and charges, and all other public charges whether of a like or
different nature, imposed upon or assessed against it or the Mortgaged Property
or any part thereof or upon the revenues, rents, issues, income and profits of
the Mortgaged Property or arising in respect of the occupancy, use or possession
thereof. Grantor will, upon Beneficiary's request, deliver to Beneficiary
receipts evidencing the payment of all such taxes, assessments, levies, fees,
rents and other public charges imposed upon or assessed against it or the
Mortgaged Property or any portion thereof.
Beneficiary may, at its option following the occurrence of an Event of
Default, to be exercised by thirty (30) days' notice to Grantor, require the
deposit by Grantor, at the time of each payment of an installment of interest or
principal under the Note (but no less often than monthly), of an additional
amount sufficient to discharge the obligations under this clause (a) when they
become due. The determination of the amount so payable and of the fractional
part thereof to be deposited with Beneficiary, so that the aggregate of such
deposits shall be sufficient for this purpose, shall be made by Beneficiary in
its sole discretion. Such amounts shall be held by Beneficiary without interest
and applied to the payment of the obligations in respect of which such amounts
were deposited or, at Beneficiary's option, to the payment of said obligations
in such order or priority as Beneficiary shall determine, on or before the
respective dates on which the same or any of them would become delinquent. If
one (1) month prior to the due date of any of the aforementioned obligations the
amounts then on deposit therefor shall be insufficient for the payment of such
obligation in full, Grantor within ten (10) days after demand shall deposit the
amount of the deficiency with Beneficiary. Nothing herein contained shall be
deemed to affect any right or remedy of Beneficiary under any provisions hereof
or of any statute or rule of law to pay any such amount and to add the amount so
paid, together with interest at the Default Rate, to the indebtedness hereby
secured.
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(b) Payment of Mechanics and Materialmen. Grantor will pay, from time
to time when the same shall become due, all lawful claims and demands of
mechanics, materialmen, laborers, and others which, if unpaid, might result in,
or permit the creation of, a lien on the Mortgaged Property or any part thereof,
and in general will do or cause to be done everything necessary so that the lien
hereof shall be fully preserved, at the cost of Grantor and without expense to
Trustee or Beneficiary, other than those liens which Beneficiary or its
affiliates have indemnified Grantor pursuant to the provisions set forth in the
Agreement of Sale.
(c) Good Faith Contests. Nothing in this Section 1.07 shall require the
payment or discharge of any obligation imposed upon Grantor by this Section so
long as Grantor shall in good faith and at its own expense contest the same or
the validity thereof by appropriate legal proceedings which shall operate to
prevent the collection thereof or other realization thereon and the sale or
forfeiture of the Mortgaged Property or any part thereof to satisfy the same;
provided, however, that (i) during such contest Grantor shall set aside reserves
sufficient to discharge Grantor's obligation hereunder and of any additional
charge, penalty or expense arising from or incurred as a result of such contest
and (ii) if at any time payment of any obligation imposed upon Grantor by clause
(a) above shall become necessary to prevent the delivery of a tax deed or other
instrument conveying the Mortgaged Property or any portion thereof because of
non-payment, then Grantor shall pay the same in sufficient time to prevent the
delivery of such tax deed or other instrument.
Section 1.08. Taxes on Trustee or Beneficiary. Grantor will pay any
taxes, except income taxes, imposed on Trustee or Beneficiary by reason of their
ownership of the Note or this Deed, provided that Beneficiary can require
payment of the Note in full within ninety (90) days if it shall be illegal for
Grantor to pay any tax or if the payment of such tax by Grantor would result in
the violation of applicable usury laws .
Section 1.09. Insurance. (a) Grantor will at all times (directly or
indirectly) provide, maintain and keep in force:
(i) policies of insurance insuring the Premises, Improvements
and Chattels against loss or damage by fire and lightning; against loss
or damage by other risks embraced by coverage of the type now known as
All Risk Replacement Cost Insurance with agreed amount endorsement,
including but not limited to riot and civil commotion, vandalism,
malicious mischief and theft; and against such other risks or hazards
as Beneficiary from time to time reasonably may designate in an amount
sufficient to prevent Beneficiary or Grantor from becoming a co-insurer
under the terms of the applicable policies, but in any event in an
amount not less than 100% of the then full replacement cost of the
Improvements (exclusive of the cost of excavations, foundations and
footings below the lowest basement floor) without deduction for
physical depreciation;
(ii) policies of insurance insuring the Premises against the
loss of "rental value" of the buildings which constitute a part of the
Improvements on a "rented or vacant basis" arising out of the perils
insured against pursuant to clause
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(i) above in an amount equal to not less than one (1) year's gross
"rental value" of the Improvements. "Rental value" as used herein is
defined as the sum of (A) the total anticipated gross rental income
from tenant occupancy of such buildings as furnished and equipped, (B)
the amount of all charges which are the legal obligation of tenants and
which would otherwise be the obligation of Grantor and (C) the fair
rental value of any portion of such buildings which is occupied by
Grantor. Grantor hereby assigns the proceeds of such insurance to
Beneficiary, to be applied by Beneficiary in payment of the interest
and principal on the Note, insurance premiums, taxes, assessments and
private impositions until such time as the Improvements shall have been
restored and placed in full operation, at which time, provided Grantor
is not then in default hereunder, the balance of such insurance
proceeds, if any, held by Beneficiary shall be paid over to Grantor;
(iii) if all or part of the Premises are located in an area
identified by the Secretary of the United States Department of Housing
and Urban Development or by any applicable federal agency as a flood
hazard area, flood insurance in an amount at least equal to the maximum
limit of coverage available under the National Flood Insurance Act of
1968, provided, however, that Beneficiary reserves the right to require
flood insurance in excess of said limit if such insurance is
commercially available up to the amount provided in clause (i) above;
(iv) during any period of restoration under this Section 1.09
or Section 1.13, a policy or policies of builder's "all risk"
insurance, written on a Standard Builder's Risk Completed Value Form
(100% non-reporting), in an amount not less than the full insurable
value of the Premises against such risks (including, without
limitation, fire and extended coverage, collapse and earthquake
coverage to agreed limits) as Beneficiary may reasonably request, in
form and substance acceptable to Beneficiary;
(v) a policy or policies of workers' compensation insurance
as required by workers' compensation insurance laws (including
employer's liability insurance, if requested by Beneficiary) covering
all employees of Grantor;
(vi) comprehensive liability insurance on an "occurrence"
basis against claims for "personal injury" liability, including,
without limitation, bodily injury, death or property damage liability,
with a limit of not less than $15,000,000 in the event of "personal
injury" to any number of persons or of damage to property arising out
of one "occurrence". Such policies shall name Beneficiary as additional
insured by an endorsement, and shall contain cross-liability and
severability of interest clauses, all satisfactory to Beneficiary; and
(vii) such other insurance (including, but not limited to,
earthquake insurance), and in such amounts, as may from time to time be
reasonably required by Beneficiary against the same or other insurable
hazards.
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Notwithstanding anything herein to the contrary, for so long as that
certain Management Agreement of even date herewith between Lessee and
Beneficiary with respect to the Premises remains in full force and effect (as
the same may be amended, the "Management Agreement"), the types and amounts of
insurance required by the Management Agreement to the extent inconsistent with
those set forth above shall govern and control Grantor's obligations in respect
thereof.
(b) All policies of insurance required under this Section 1.09 shall be
issued by companies having Best's ratings and being otherwise reasonably
acceptable to Beneficiary, shall be subject to the reasonable approval of
Beneficiary as to amount, content, form and expiration date and, except for the
liability policies described in clauses (a)(v) and (vi) above, shall contain a
Non-Contributory Standard Mortgagee Clause and Lender's Loss Payable
Endorsement, or their equivalents, in favor of Beneficiary, and shall provide
that the proceeds thereof shall be payable to Beneficiary. Beneficiary shall be
furnished with the original of each policy required hereunder, which policies
shall provide that they shall not lapse, nor be modified or cancelled, without
thirty (30) days' written notice to Beneficiary. At least thirty (30) days prior
to expiration of any policy required hereunder, Grantor shall furnish
Beneficiary appropriate proof of issuance of a policy continuing in force the
insurance covered by the policy so expiring. Grantor shall furnish to
Beneficiary, promptly upon request, receipts or other satisfactory evidence of
the payment of the premiums on such insurance policies. In the event that
Grantor does not deposit with Beneficiary a new certificate or policy of
insurance with evidence of payment of premiums thereon at least thirty (30) days
prior to the expiration of any expiring policy, then Beneficiary may, but shall
not be obligated to, procure such insurance and pay the premiums therefor, and
Grantor agrees to repay to Beneficiary the premiums thereon promptly on demand,
together with interest thereon at the Default Rate.
(c) Grantor hereby assigns to Beneficiary all proceeds of any insurance
required to be maintained by this Section 1.09 which Grantor may be entitled to
receive for loss or damage to the Premises, Improvements or Chattels. All such
insurance proceeds shall be payable to Beneficiary, and Grantor hereby
authorizes and directs any affected insurance company to make payment thereof
directly to Beneficiary subject, however, to clause (f) below. Grantor shall
give prompt notice to Beneficiary of any casualty, whether or not of a kind
required to be insured against under the policies to be provided by Grantor
hereunder, such notice to generally describe the nature and cause of such
casualty and the extent of the damage or destruction. Grantor may settle, adjust
or compromise any claims for loss, damage or destruction, regardless of whether
or not there are insurance proceeds available or whether any such insurance
proceeds are sufficient in amount to fully compensate for such loss or damage,
subject to Beneficiary's prior consent. Notwithstanding the foregoing,
Beneficiary shall have the right to join Grantor in settling, adjusting or
compromising any loss of $100,000 or more. Grantor hereby authorizes the
application or release by Beneficiary of any insurance proceeds under any policy
of insurance, subject to the other provisions hereof. The application or release
by Beneficiary of any insurance proceeds shall not cure or waive any default or
notice of default hereunder or invalidate any act done pursuant to such notice.
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(d) In the event of the foreclosure hereof or other transfer of the
title to the Mortgaged Property in extinguishment, in whole or in part, of the
indebtedness secured hereby, all right, title and interest of Grantor in and to
any insurance policy, or premiums or payments in satisfaction of claims or any
other rights thereunder then in force, shall pass to the purchaser or grantee
notwithstanding the amount of any bid at such foreclosure sale. Nothing
contained herein shall prevent the accrual of interest as provided in the Note
on any portion of the principal balance due under the Note until such time as
insurance proceeds are actually received and applied to reduce the principal
balance outstanding.
(e) Grantor shall not take out separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained under this
Section 1.09 unless Beneficiary is included thereon as a named insured with loss
payable to Beneficiary under standard mortgage endorsements of the character and
to the extent above described. Grantor shall promptly notify Beneficiary
whenever any such separate insurance is taken out and shall promptly deliver to
Beneficiary the policy or policies of such insurance.
(f) Any and all monies received as payment which Grantor may be
entitled to receive for loss or damage to the Premises, Improvements or Chattels
under any insurance maintained pursuant to this Section 1.09 (other than
proceeds under the policies required by clause (a)(ii) above) shall be paid over
to Beneficiary and, at Beneficiary's option, either applied to the prepayment of
the Note and all interest and other sums accrued and unpaid in respect thereof
or disbursed from time to time to Grantor in reimbursement of its costs and
expenses incurred in the restoration of the Improvements in accordance with
Beneficiary's standard construction lending practices, terms and conditions, in
either case, less Beneficiary's reasonable expenses for collecting and, if
applicable, disbursing the insurance proceeds, or otherwise incurred in
connection therewith. Notwithstanding the provisions of the immediately
preceding sentence, provided no default exists hereunder, Beneficiary agrees to
apply any such proceeds received by it to the reimbursement of Grantor's costs
of restoring the Improvements. Advances of insurance proceeds shall be made to
Grantor from time to time in accordance with Beneficiary's standard construction
lending practices, terms and conditions; amounts not required for such purposes
shall be applied, at Beneficiary's option, to the prepayment of the Note and to
interest accrued and unpaid thereon in such order and proportions as Beneficiary
may elect. In no event shall Beneficiary be required to advance such proceeds to
Grantor unless Beneficiary shall have (i) received satisfactory evidence that
the funding/expiration dates of the commitment, if any, for the permanent
financing of the Improvements have been extended for such period of time as is
reasonably necessary to complete said restoration and (ii) reasonably determined
that the restoration of the Improvements can be completed by the Maturity Date
of the Note at a cost which does not exceed the amount of available insurance
proceeds or, in the event that such proceeds are reasonably determined by
Beneficiary to be inadequate, Beneficiary shall have received from Grantor a
cash deposit equal to the excess of said estimated cost of restoration over the
amount of said available proceeds. If the conditions for the advance of
insurance proceeds for restoration set forth in clauses (i) and (ii) above are
not satisfied within sixty (60) days of Beneficiary's receipt thereof or if the
actual restoration shall not have been
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commenced within such period, Beneficiary shall have the option at any time
thereafter to apply such insurance proceeds to the payment of the Note and to
interest accrued and unpaid thereon in such order and proportions as Beneficiary
may elect.
Section 1.10. Protective Advances by Beneficiary. If Grantor shall fail
to perform any of the covenants contained herein, Trustee or Beneficiary may
make advances to perform the same on its behalf and all sums so advanced shall
be a lien upon the Mortgaged Property and shall be secured hereby. Grantor will
repay on demand all sums so advanced on its behalf together with interest
thereon at the Default Rate. The provisions of this Section shall not prevent
any default in the observance of any covenant contained herein from constituting
an Event of Default.
Section 1.11. (a) Visitation and Inspection. Grantor will keep adequate
records and books of account in accordance with generally accepted accounting
principles and will permit each of Trustee and Beneficiary, by their agents,
accountants and attorneys, to visit and inspect the Mortgaged Property and
examine its records and books of account and make copies thereof or extracts
therefrom, and to discuss its affairs, finances and accounts with the officers
or general partners, as the case may be, of Grantor, at such reasonable times as
may be requested by Trustee or Beneficiary.
(b) Financial and Other Information. Grantor will deliver to
Beneficiary with reasonable promptness such financial information with respect
to Grantor or the Premises as Beneficiary may reasonably request from time to
time. All financial statements of Grantor shall be prepared in accordance with
generally accepted accounting principles and shall be accompanied by the
certificate of a principal financial or accounting officer or general partner,
as the case may be, of Grantor, dated within five (5) days of the delivery of
such statements to Beneficiary, stating that he or she knows of no Event of
Default, nor of any event which after notice or lapse of time or both would
constitute an Event of Default, which has occurred and is continuing, or, if any
such event or Event of Default has occurred and is continuing, specifying the
nature and period of existence thereof and what action Grantor has taken or
proposes to take with respect thereto, and, except as otherwise specified,
stating that Grantor has fulfilled all of its obligations hereunder and
otherwise in respect of the Loan which are required to be fulfilled on or prior
to the date of such certificate.
(c) Estoppel Certificates. Grantor, within three (3) days upon request
in person or within five (5) days upon request by mail, will furnish a
statement, duly acknowledged, of the amount due whether for principal or
interest on this Deed and whether any offsets, counterclaims or defenses exist
against the indebtedness secured hereby.
Section 1.12. Maintenance of Premises and Improvements. Grantor will
not commit any waste on the Premises or make any change in the use of the
Premises which will in any way increase any ordinary fire or other hazard
arising out of construction or operation. Grantor will, or shall cause its
Lessee to, at all times, maintain the Improvements and Chattels in good
operating order and condition and will promptly make, from time to time, all
repairs, renewals, replacements, additions and improvements
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in connection therewith which are needful or desirable to such end. The
Improvements shall not be demolished or substantially altered, nor shall any
Chattels be removed without Beneficiary's prior consent except where appropriate
replacements free of superior title, liens and claims are immediately made of
value at least equal to the value of the removed Chattels.
Section 1.13. Condemnation. Grantor, immediately upon obtaining
knowledge of the institution or pending institution of any proceedings for the
condemnation of the Premises or any portion thereof, will notify Trustee and
Beneficiary thereof. Trustee and Beneficiary may participate in any such
proceedings and may be represented therein by counsel of Beneficiary's
selection. Grantor from time to time will deliver to Beneficiary all instruments
requested by it to permit or facilitate such participation. In the event of such
condemnation proceedings, the award or compensation payable is hereby assigned
to and shall be paid to Beneficiary. Beneficiary shall be under no obligation to
question the amount of any such award or compensation and may accept the same in
the amount in which the same shall be paid. The proceeds of any award or
compensation so received shall, at Beneficiary's option, either be applied to
the prepayment of the Note and all interest and other sums accrued and unpaid in
respect thereof at the rate of interest provided therein regardless of the rate
of interest payable on the award by the condemning authority, or be disbursed to
Grantor from time to time for restoration of the Improvements in accordance with
Beneficiary's standard construction lending practices, terms and conditions, in
either case, less Beneficiary's reasonable expenses for collecting and, if
applicable, disbursing the award, or otherwise incurred in connection therewith.
Notwithstanding the provisions of the immediately preceding sentence, provided
no monetary or bankruptcy related default or any Event of Default exists
hereunder, Beneficiary agrees to apply any such condemnation award proceeds
received by it to the reimbursement of Grantor's costs of restoring the
Improvements. Advances of condemnation award proceeds shall be made to Grantor
from time to time in accordance with Beneficiary's standard construction lending
practices, terms and conditions; amounts not required for such purposes shall be
applied, at Beneficiary's option, to the prepayment of the Note and to interest
accrued and unpaid thereon (at the rate of interest provided therein regardless
of the rate of interest payable on the award by the condemning authority) in
such order and proportions as Beneficiary may elect.
Section 1.14. Leases. (a) Grantor will not (i) execute an assignment of
the rents or any part thereof from the Premises without Beneficiary's prior
consent, (ii) except where the lessee is in default thereunder, terminate or
consent to the cancellation or surrender of any lease of the Premises or of any
part thereof, now existing or hereafter to be made, having an unexpired term of
one (1) year or more, provided, however, that any lease may be cancelled if
promptly after the cancellation or surrender thereof a new lease is entered into
with a new lessee having a credit standing at least equivalent to that of the
lessee whose lease was cancelled, on substantially the same terms as the
terminated or cancelled lease, (iii) modify any such lease so as to shorten the
unexpired term thereof or so as to decrease, waive or compromise in any manner
the amount of the rents payable thereunder or materially expand the obligations
of the lessor thereunder, (iv) accept prepayments of more than one month of any
installments of rents to become due under such leases, except prepayments in the
nature of security for the performance of the lessees thereunder, (v) modify,
release or terminate any guaranties of any such lease or (vi) in any other
manner impair the value of the Mortgaged Property or the security hereof.
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(b) Grantor will not execute any lease of all or a substantial portion
of the Premises except for actual occupancy by the lessee thereunder or its
property manager, and will at all times promptly and faithfully perform, or
cause to be performed, all of the covenants, conditions and agreements contained
in all leases of the Premises or portions thereof now or hereafter existing, on
the part of the lessor thereunder to be kept and performed and will at all times
do all things reasonably necessary to compel performance by the lessee under
each lease of all obligations, covenants and agreements by such lessee to be
performed thereunder. If any of such leases provide for the giving by the lessee
of certificates with respect to the status of such leases, Grantor shall
exercise its right to request such certificates within five (5) days of any
demand therefor by Beneficiary and shall deliver copies thereof to Beneficiary
promptly upon receipt.
(c) In the event of the enforcement by Trustee or Beneficiary of the
remedies provided for hereby or by law, the lessee under each of the leases of
the Premise will, upon request of any person succeeding to the interest of
Grantor as a result of such enforcement, automatically become the lessee of said
successor in interest, without change in the terms or other provisions of such
lease, provided, however, that said successor in interest shall not be bound by
(i) any payment of rent or additional rent for more than one (1) month in
advance, except prepayments in the nature of security for the performance by
said lessee of its obligations under said lease or (ii) any amendment or
modification of the lease made without the consent of Beneficiary or such
successor in interest. Each lease shall also provide that, upon request by said
successor in interest, such lessee shall execute and deliver an instrument or
instruments confirming such attornment.
Section 1.15. Premises Documents. Grantor shall (a) do all things
reasonably necessary to cause the due compliance and faithful performance by the
other parties to the Premises Documents with and of all obligations and
agreements by such other parties to be complied with and performed thereunder,
except for any continuing failure of the Premises to comply with the Premises
Documents of the date of the acquisition hereof from Beneficiary or its
affiliate, and (b) deliver promptly to Beneficiary copies of any notices which
it gives or receives under any of the Premises Documents.
Section 1.16. Trust Fund; Lien Laws. Grantor will receive the advances
secured hereby and will hold the right to receive such advances as a trust fund
to be applied first for the purpose of paying the costs of improvements on the
Premises and will apply the same first to the payment of such costs before using
any part of the total of the same for any other purpose. Grantor will indemnify
and hold Trustee and Beneficiary harmless against any loss or liability, cost or
expense, including, without limitation, any judgments, attorney's fees, costs of
appeal bonds and printing costs, arising out of or relating to any proceeding
instituted by any claimant alleging a violation by Grantor of any applicable
lien law.
15
Section 1.17. Expenses of Trustee. Grantor shall pay all costs, fees
and expenses of Trustee, its agents and counsel in connection with the
performance of its duties hereunder.
ARTICLE II
EVENTS OF DEFAULT AND REMEDIES
Section 2.01. Events of Default and Certain Remedies. If one or more of
the following Events of Default shall happen, that is to say:
(a) if (i) default shall be made in the payment of any
principal, interest, fees or other sums under the Note, in any such
case, when and as the same shall become due and payable, whether at
maturity or by acceleration or as part of any payment or prepayment or
otherwise, in each case, as herein or in the Note provided, and such
default shall have continued for a period of ten (10) days or (ii)
default shall be made in the payment of any tax or other charge
required by Section 1.07 to be paid and said default shall have
continued for a period of twenty (20) days; or
(b) if default shall be made in the due observance or
performance of any covenant, condition or agreement in the Note, this
Deed or in any other document executed or delivered to Beneficiary in
connection with the Loan, and such default shall have continued for a
period of thirty (30) days after notice thereof shall have been given
to Grantor by Beneficiary, or, in the case of such other documents,
such xxxxxxx xxxxx period, if any, as may be provided for therein; or
(c) if any representation or warranty made by Grantor in Section
1.01 shall be incorrect, or if any other representation or warranty
made to Beneficiary in this Deed, or in any other document, certificate
or statement executed or delivered to Beneficiary in connection with
the Loan shall be incorrect in any material respect when made or
remade; or
(d) if by order of a court of competent jurisdiction, a trustee,
receiver or liquidator of the Mortgaged Property or any part thereof,
or of Grantor shall be appointed and such order shall not be discharged
or dismissed within sixty (60) days after such appointment; or
(e) if Grantor shall file a petition in bankruptcy or for an
arrangement or for reorganization pursuant to the Federal Bankruptcy
Act or any similar federal or state law, or if, by decree of a court of
competent jurisdiction, Grantor shall be adjudicated a bankrupt, or be
declared insolvent, or shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts
generally as they become due, or shall consent to the appointment of a
receiver or receivers of all or any part of its property; or
16
(f) if any of the creditors of Grantor shall file a petition in
bankruptcy against Grantor or for reorganization of Grantor pursuant to
the Federal Bankruptcy Act or any similar federal or state law, and if
such petition shall not be discharged or dismissed within sixty (60)
days after the date on which such petition was filed; or
(g) if final judgment for the payment of money shall be rendered
against Grantor and Grantor shall not discharge the same or cause it to
be discharged within sixty (60) days from the entry thereof, or shall
not appeal therefrom or from the order, decree or process upon which or
pursuant to which said judgment was granted, based or entered, and
secure a stay of execution pending such appeal; or
(h) (Intentionally Omitted)
(i) if there shall occur a default which is not cured within the
applicable grace period, if any, under any mortgage, deed of trust or
other security instrument covering all or part of the Mortgaged
Property regardless of whether any such mortgage, deed of trust or
other security instrument is prior or subordinate hereto or under any
mortgage, deed of trust or other security instrument now or hereafter
securing the Note; it being further agreed by Grantor that an Event of
Default hereunder shall constitute an Event of Default under any such
mortgage, deed of trust or other security instrument held by or for the
benefit of Beneficiary; or
(j) if there shall occur a default which is not cured within the
applicable grace period, if any, under any of the Premises Documents,
except for any continuing failure of the Premises to comply with the
Premises Documents of the date of the acquisition hereof from
Beneficiary or its affiliate; or if any of the Premises Documents is
amended, modified, supplemented or terminated without Beneficiary's
prior consent; or
(k) if Grantor shall transfer, or agree to transfer (or suffer
or permit the transfer or agreement to transfer), in any manner, either
voluntarily or involuntarily, by operation of law or otherwise, all or
any portion of the Mortgaged Property, or any interest or rights
therein (including air or development rights) without, in any such
case, Beneficiary's prior consent. As used in this clause, "transfer"
shall include, without limitation, any sale, assignment, lease (other
than to Lessee) or conveyance except leases for occupancy subordinate
hereto and to all advances made and to be made hereunder or, in the
event Grantor (or a general partner or co-venturer thereof) is a
partnership, joint venture, limited liability company, trust or
closely-held corporation, the sale, conveyance, transfer or other
disposition of more than 10%, in the aggregate, of any class of the
issued and outstanding capital stock of such closely-held corporation
or of the beneficial interest of such partnership, venture, limited
liability company or trust, or a change of any general partner, joint
venturer, member or beneficiary, as the case may be. In the event
Grantor is a
17
limited partnership, and so long as a limited partner has contributed
to (or remains personally liable for) the present and future
partnership capital contributions required of such limited partner by
the partnership agreement, such partner may sell, convey, devise,
transfer or dispose of all or a part of his limited partnership
interest to his spouse, children, grandchildren or a family trust in
which his spouse, children or grandchildren are sole beneficiaries; or
(l) if Grantor shall encumber, or agree to encumber, in any
manner, either voluntarily or involuntarily, by operation of law or
otherwise, all or any portion of the Mortgaged Property, or any
interest or rights therein (including air or development rights)
without, in any such case, Beneficiary's prior consent. As used in this
clause, "encumber" shall include, without limitation, the placing or
permitting the placing of any mortgage, deed of trust, assignment of
rents or other security device. (Beneficiary may grant or deny its
consent under this clause and the immediately preceding clause in its
sole discretion and, if consent should be given, any such transfer or
encumbrance shall be subject hereto and to any other documents which
evidence or secure the Loan, and, if a transfer, any such transferee
shall assume all of Grantor's obligations hereunder and thereunder and
agree to be bound by all provisions and perform all obligations
contained herein and therein; consent to one such transfer or
encumbrance shall not be deemed to be a waiver of the right to require
consent to future or successive transfers or encumbrances);
then and in every such case:
I. During the continuance of any such Event of Default,
Beneficiary, by notice to Grantor, may declare the entire principal of
the Note then outstanding (if not then due and payable), and all
accrued and unpaid interest and other sums in respect thereof, to be
due and payable immediately, and upon any such declaration the
principal of the Note and said accrued and unpaid interest and other
sums shall become and be immediately due and payable, anything herein
or in the Note (other than Section 4.08 hereof, the provisions thereof
limiting interest payable thereunder to the maximum amount permitted by
applicable law) to the contrary notwithstanding.
II. During the continuance of any such Event of Default, Trustee
or Beneficiary personally, or by their agents or attorneys, may enter
into and upon all or any part of the Premises, and each and every part
thereof, and are each hereby given a right and license and appointed
Grantor's attorney-in-fact and exclusive agent to do so, and may
exclude Grantor, its agents and servants wholly therefrom; and having
and holding the same, may use, operate, manage and control the Premises
and conduct the business thereof, either personally or by their
superintendents, managers, agents, servants, attorneys or receivers;
and upon every such entry, Trustee or Beneficiary, at the expense of
the Mortgaged Property, from time to time, either by purchase, repairs
or construction, may maintain and restore the Mortgaged Property,
whereof they shall become possessed as aforesaid; may complete the
construction of the Improvements and
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in the course of such completion may make such changes in the
contemplated Improvements as Beneficiary may deem desirable and may
insure the same; and likewise, from time to time, at the expense of the
Mortgaged Property, Trustee or Beneficiary may make all necessary or
proper repairs, renewals and replacements and such useful alterations,
additions, betterments and improvements thereto and thereon as
Beneficiary may seem advisable; and in every such case Trustee or
Beneficiary shall have the right to manage and operate the Mortgaged
Property and to carry on the business thereof and exercise all rights
and powers of Grantor with respect thereto either in the name of
Grantor or otherwise as Beneficiary shall deem best; and Trustee or
Beneficiary shall be entitled to collect and receive the Rents and
every part thereof, all of which shall for all purposes constitute
property of Grantor; and in furtherance of such right Beneficiary may
collect the rents payable under all leases of the Premises directly
from the lessees thereunder upon notice to each such lessee that an
Event of Default exists hereunder accompanied by a demand on such
lessee for the payment to Beneficiary of all rents due and to become
due under its lease, and Grantor FOR THE BENEFIT OF BENEFICIARY AND
EACH SUCH LESSEE hereby covenants and agrees that the lessee shall be
under no duty to question the accuracy of Beneficiary's statement of
default and shall unequivocally be authorized to pay said rents to
Beneficiary without regard to the truth of Beneficiary's statement of
default and notwithstanding notices from Grantor disputing the
existence of an Event of Default such that the payment of rent by the
lessee to Beneficiary pursuant to such a demand shall constitute
performance in full of the lessee's obligation under the lease for the
payment of rents by the lessee to Grantor; and after deducting the
expenses of conducting the business thereof and of all maintenance,
repairs, renewals, replacements, alterations, additions, betterments
and improvements and amounts necessary to pay for taxes, assessments,
insurance and prior or other proper charges upon the Mortgaged Property
or any part thereof, as well as just and reasonable compensation for
the services of Trustee and Beneficiary and for all attorneys, counsel,
agents, clerks, servants and other employees by them engaged and
employed, Trustee or Beneficiary, as the case may be, shall apply the
moneys arising as aforesaid, first, to the payment of the principal of
the Note and the interest thereon, when and as the same shall become
payable and in such order and proportions as Beneficiary shall elect
and second, to the payment of any other sums required to be paid by
Grantor hereunder.
III. Trustee or Beneficiary, as the case may be, with or without
entry, personally or by their agents or attorneys, insofar as
applicable, may:
(1) sell the Mortgaged Property and all estate, right,
title and interest, claim and demand therein, at public auction
at such time and place, and upon such terms and conditions as
Beneficiary may deem expedient or as may be required or
permitted by applicable law, having first given such notice
prior to the sale of such time, place and terms by publication
in one (1) or more newspapers published or having a general
circulation in the county or counties of the state in which the
Mortgaged Property is located as may be required or permitted by
law and by such
19
other methods, if any, as Trustee or Beneficiary may deem
desirable or as may be required or permitted by applicable law.
In the event of any sale of all or part of the Mortgaged
Property under the terms hereof, Grantor shall pay (in addition
to taxable costs) a reasonable fee to Trustee which shall be in
lieu of all other fees and commission permitted by statute or
custom to be paid, reasonable attorneys' fees and all expenses
incurred in obtaining or continuing abstracts of title for the
purpose of any such sale; or
(2) institute proceedings for the complete or partial
foreclosure hereof; or
(3) take such steps to protect and enforce their rights
whether by action, suit or proceeding in equity or at law for
the specific performance of any covenant, condition or agreement
in the Note or herein, or in aid of the execution of any power
herein granted, or for any foreclosure hereunder, or for the
enforcement of any other appropriate legal or equitable remedy
or otherwise as Trustee or Beneficiary shall elect.
IV. Upon the occurrence of such an Event of Default, or at any
time thereafter, Beneficiary is authorized and empowered, without
further notice, to file with Trustee a written Notice of Election and
Demand for Sale, as provided by law, whereupon it shall be and may be
lawful for Trustee to foreclose, and Trustee shall foreclose, this Deed
and sell and dispose of the Mortgaged Property en masse or in separate
parcels (as Beneficiary may elect) and all the right, title and
interest of Grantor therein, at public auction at any place then
authorized by law as may be specified in the notice of such sale, for
the highest and best price the same will bring, four (4) weeks' public
notice having previously been given of the time and place of such sale
by advertisement weekly in some newspaper of general circulation at the
time published in Boulder County, Colorado, or upon such other notice
as may then be required by law, and shall issue, execute and deliver a
Certificate of Purchase, Trustee's Deed (which may be in the ordinary
form of conveyance), or Certificate of Redemption in the manner
provided by law to the party entitled thereto.
Section 2.02. Other Matters Concerning Sales. (a) Trustee or
Beneficiary may adjourn from time to time any sale by it to be made hereunder or
by virtue hereof by announcement at the time and place appointed for such sale
or for such adjourned sale or sales; and, except as otherwise provided by any
applicable provision of law, Trustee or Beneficiary, as the case may be, without
further notice or publication, may make such sale at the time and place to which
the same shall be so adjourned.
(b) Upon the completion of any sale or sales made by Trustee or
Beneficiary, as the case may be, under or by virtue of this Article II, Trustee,
or an officer of any court empowered to do so, shall execute and deliver to the
accepted purchaser or purchasers a good and sufficient instrument or instruments
conveying, assigning and transferring all estate, right, title and interest in
and to the property and rights sold. Trustee is hereby
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appointed the true and lawful attorney irrevocable of Grantor, in its name and
stead, to make all necessary conveyances, assignments, transfers and deliveries
of the Mortgaged Property and rights so sold and for that purpose Trustee may
execute all necessary instruments of conveyance, assignment and transfer, and
may substitute one or more persons with like power, Grantor hereby ratifying and
confirming all that its said attorney or such substitute or substitutes shall
lawfully do by virtue hereof. Nevertheless, Grantor, if requested by Trustee or
Beneficiary, shall ratify and confirm any such sale or sales by executing and
delivering to Trustee or to such purchaser or purchasers all such instruments as
may be advisable, in the judgment of Trustee or Beneficiary, for the purpose,
and as may be designated in such request. Any such sale or sales made under or
by virtue of this Article II, whether made under the power of sale herein
granted or under or by virtue of judicial proceedings or of a judgment or decree
of foreclosure and sale, shall operate to divest all the estate, right, title,
interest, claim and demand whatsoever, whether at law or in equity, of Grantor
in and to the properties and rights so sold, and shall be a perpetual bar both
at law and in equity against Grantor and against any and all persons claiming or
who may claim the same, or any part thereof from, through or under Grantor.
(c) In the event of any sale or sales made under or by virtue of this
Article II (whether made under the power of sale herein granted or under or by
virtue of judicial proceedings or of a judgment or decree of foreclosure and
sale), the entire principal of, and interest and other sums on, the Note, if not
previously due and payable, and all other sums required to be paid by Grantor
pursuant hereto, immediately thereupon shall, anything in any of said documents
(other than Section 4.08 hereof) to the contrary notwithstanding, become due and
payable.
(d) The purchase money, proceeds or avails of any sale or sales made
under or by virtue of this Article II, together with any other sums which then
may be held by Trustee or Beneficiary hereunder, whether under the provisions of
this Article II or otherwise, shall be applied as follows:
First: To the payment of the costs and expenses of such sale,
including reasonable compensation to Trustee and Beneficiary, their
agents and counsel, and of any judicial proceedings wherein the same
may be made, and of all expenses, liabilities and advances made or
incurred by Trustee hereunder, together with interest at the Default
Rate on all advances made by Trustee, and of all taxes, assessments or
other charges, except any taxes, assessments or other charges subject
to which the Mortgaged Property shall have been sold.
Second: To the payment of the whole amount then due, owing or
unpaid upon the Note for principal and interest, with interest on the
unpaid principal at the Default Rate from and after the happening of
any Event of Default described in clause (a) of Section 2.01 from the
due date of any such payment of principal until the same is paid, in
such order and amounts as Beneficiary may elect.
Third: To the payment of any other sums required to be paid by
Grantor pursuant to any provision hereof or of the Note, including all
expenses, liabilities and advances made or incurred by Beneficiary
hereunder or in connection with the enforcement hereof, together with
interest at the Default Rate on all such advances.
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Fourth: To the payment of the surplus, if any, to whomsoever may be
lawfully entitled to receive the same.
(e) Upon any sale or sales made under or by virtue of this Article II,
whether made under the power of sale herein granted or under or by virtue of
judicial proceedings or of a judgment or decree of foreclosure and sale,
Beneficiary may bid for and acquire the Mortgaged Property or any part thereof
and in lieu of paying cash therefor may make settlement for the purchase price
by crediting upon the indebtedness secured hereby the net sales price after
deducting therefrom the expenses of the sale and the costs of the action and any
other sums which Trustee or Beneficiary are authorized to deduct hereunder.
(f) It is specifically authorized hereby that Beneficiary or its
nominee or both of them may bid at any foreclosure sale held by Trustee or by
act of a court, and the fact of such bid shall not in any way alter, amend,
waiver or limit any obligation which Grantor or any other obligor under or in
respect of the Note or any of them might have by way of a deficiency in the
amount which might then be due under the terms of the Note or of this Deed or of
both of them. It is also specifically authorized that where Beneficiary or its
nominee enters a bid at such foreclosure sale, whether such sale be conducted
through Trustee or through the courts, no bid made by such party shall be deemed
insufficient in whole or in part where the amount of such bid is equal to the
excess of (i) the appraised value of the property then being foreclosed, which
appraisal shall be rendered not more than six (6) weeks prior to the date of
such sale, over (ii) the sum of (x) any anticipated taxes, assessments and
insurance premiums which may be due or become due within six (6) months from the
date of such sale, (y) any costs which might reasonably be incurred by
Beneficiary for rendering the condition of such property reasonably appropriate
pursuant to said appraisal for the purpose of resale and (z) the costs of sale,
which costs shall include reasonable attorneys' fees therefor, the then going
real estate agent's commission as is customary in the area where such property
is located, title evidence expense, and any and all other title expenses as
might be necessitated by the status of the title to render such title marketable
for the purposes of disposition. (The effect of this provision is to provide
Beneficiary with a reasonable cash return from said property as a credit upon
the Note inasmuch as Beneficiary advanced cash to Grantor. Grantor agrees that
such cash for cash provision would essentially render back to Beneficiary that
which Beneficiary had originally advanced.)
(g) Beneficiary shall be entitled, as a matter of absolute right and
without regard to the value of any security for the secured obligations or the
solvency of any person liable therefor, to the appointment of a receiver for the
Premises and/or other parts of the Mortgaged Property upon ex parte application
to any court of competent jurisdiction. Grantor waives any right to any hearing
or notice of hearing prior to the appointment of a receiver. Such receiver and
his agents shall be empowered (i) to take possession of the Premises and/or
other parts of the Mortgaged Property and any businesses conducted by
22
Grantor or any other person thereon and any business or other assets used in
connection therewith, (ii) to exclude Grantor and Grantor's agents, servants and
employees from the Premises, (iii) to collect the rents, issues, profits and
income therefrom, (iv) to complete any construction which may be in progress,
(v) to do such maintenance and make such repairs and alterations as the
receiver, with the consent of Beneficiary, deems necessary or desirable, (vi) to
use all stores of materials, supplies and maintenance equipment on the Premises
and replace such items at the expense of the receivership estate, (vii) to pay
all taxes and assessments against the Premises and the Chattels, all premiums
for insurance thereon, all utility and other operating expenses, and all sums
due under any prior encumbrance and (viii) generally to do anything which
Grantor could legally do if Grantor were in possession of the Premises. All
expenses incurred by the receiver and his agents shall constitute a part of the
indebtedness secured hereby. Any revenues collected by the receiver shall be
applied first to the expenses of the receivership, including reasonable
attorneys' fees incurred by the receiver and by Beneficiary, together with
interest thereon at the Default Rate from the date incurred until repaid, and
the balance shall be applied toward the Note. Unless sooner terminated with the
express consent of Beneficiary, any such receivership will continue until the
indebtedness secured hereby has been discharged in full, or until title of the
Premises has passed after foreclosure sale and all applicable periods of
redemption have expired.
Section 2.03. Payment of Amounts Due. (a) In case an Event of Default
described in clause (a) of Section 2.01 shall have happened and be continuing,
then, upon demand of Beneficiary, Grantor will pay to Beneficiary the whole
amount which then shall have become due and payable on the Note, for principal
or interest or both, as the case may be, and after the happening of said Event
of Default will also pay to Beneficiary interest at the Default Rate on the then
unpaid principal of the Note, and the sums required to be paid by Grantor
pursuant to any provision hereof, and in addition thereto such further amount as
shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation to Trustee and Beneficiary, their agents and counsel and
any expenses incurred by Trustee or Beneficiary hereunder. In the event Grantor
shall fail forthwith to pay all such amounts upon such demand, Beneficiary shall
be entitled and empowered to institute such action or proceedings at law or in
equity as may be advised by its counsel for the collection of the sums so due
and unpaid, and may prosecute any such action or proceedings to judgment or
final decree, and may enforce any such judgment or final decree against Grantor
and collect, out of the property of Grantor wherever situated, as well as out of
the Mortgaged Property, in any manner provided by law, moneys adjudged or
decreed to be payable.
(b) Beneficiary shall be entitled to recover judgment as aforesaid
either before, after or during the pendency of any proceedings for the
enforcement of the provisions hereof; and the right of Beneficiary to recover
such judgment shall not be affected by any entry or sale hereunder, or by the
exercise of any other right, power or remedy for the enforcement of the
provisions hereof, or the foreclosure of the lien hereof; and in the event of a
sale of the Mortgaged Property, and of the application of the proceeds of sale,
as herein provided, to the payment of the debt hereby secured, Beneficiary shall
be entitled to enforce payment of, and to receive all amounts then remaining due
and unpaid upon, the Note, and to enforce payment of all other charges,
23
payments and costs due hereunder or otherwise in respect of the Loan, and shall
be entitled to recover judgment for any portion of the debt remaining unpaid,
with interest at the Default Rate. In case of proceedings against Grantor in
insolvency or bankruptcy or any proceedings for its reorganization or involving
the liquidation of its assets, then Beneficiary shall be entitled to prove the
whole amount of principal, interest and other sums due upon the Note to the full
amount thereof, and all other payments, charges and costs due hereunder or
otherwise in respect of the Loan, without deducting therefrom any proceeds
obtained from the sale of the whole or any part of the Mortgaged Property,
provided, however, that in no case shall Beneficiary receive, from the aggregate
amount of the proceeds of the sale of the Mortgaged Property and the
distribution from the estate of Grantor, a greater amount than such principal
and interest and such other payments, charges and costs.
(c) No recovery of any judgment by Beneficiary and no levy of an
execution under any judgment upon the Mortgaged Property or upon any other
property of Grantor shall affect in any manner or to any extent, the lien hereof
upon the Mortgaged Property or any part thereof, or any liens, rights, powers or
remedies of Trustee or Beneficiary hereunder, but such liens, rights, powers and
remedies of Trustee or Beneficiary shall continue unimpaired as before.
(d) Any moneys thus collected by Beneficiary under this Section 2.03
shall be applied by Beneficiary in accordance with the provisions of clause (d)
of Section 2.02.
Section 2.04. Actions; Receivers. After the happening of any Event of
Default and immediately upon the commencement of any action, suit or other legal
proceedings by Trustee or Beneficiary to obtain judgment for the principal of,
or interest on, the Note and other sums required to be paid by Grantor pursuant
to any provision hereof, or of any other nature in aid of the enforcement of the
Note or hereof, Grantor will (a) waive the issuance and service of process and
enter its voluntary appearance in such action, suit or proceeding and (b) if
required by Beneficiary, consent to the appointment of a receiver or receivers
of all or part of the Mortgaged Property and of any or all of the Rents in
respect thereof. After the happening of any Event of Default and during its
continuance, or upon the commencement of any proceedings to foreclose this Deed
or to enforce the specific performance hereof or in aid thereof or upon the
commencement of any other judicial proceeding to enforce any right of Trustee or
Beneficiary, Trustee or Beneficiary shall be entitled, as a matter of right, if
they shall so elect, without the giving of notice to any other party and without
regard to the adequacy or inadequacy of any security for the indebtedness
secured hereby, forthwith either before or after declaring the unpaid principal
of the Note to be due and payable, to the appointment of such a receiver or
receivers.
Section 2.05. Beneficiary's Right to Possession. Notwithstanding the
appointment of any receiver, liquidator or trustee of Grantor, or of any of its
property, or of the Mortgaged Property or any part thereof, Trustee and
Beneficiary shall be entitled to retain possession and control of all property
now or hereafter held hereunder.
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Section 2.06. Remedies Cumulative. No remedy herein conferred upon or
reserved to Trustee or Beneficiary is intended to be exclusive of any other
remedy or remedies, and each and every such remedy shall be cumulative, and
shall be in addition to every other remedy given hereunder or now or hereafter
existing at law, in equity or by statute. No delay or omission of Trustee or
Beneficiary to exercise any right or power accruing upon any Event of Default
shall impair any such right or power, or shall be construed to be a waiver of
any such Event of Default or any acquiescence therein; and every power and
remedy given hereby to Trustee or Beneficiary may be exercised from time to time
as often as may be deemed by them expedient. Nothing herein or in the Note shall
affect the obligation of Grantor to pay the principal of, and interest and other
sums on, the Note in the manner and at the time and place therein respectively
expressed.
Section 2.07. Moratorium Laws; Right of Redemption. Grantor will not at
any time insist upon, or plead, or in any manner whatever claim or take any
benefit or advantage of any stay or extension or moratorium law, any exemption
from execution or sale of the Mortgaged Property or any part thereof, wherever
enacted, now or at any time hereafter in force, which may affect the covenants
and terms of performance hereof, nor claim, take or insist upon any benefit or
advantage of any law now or hereafter in force providing for the valuation or
appraisal of the Mortgaged Property, or any part thereof, prior to any sale or
sales thereof which may be made pursuant to any provision herein, or pursuant to
the decree, judgment or order of any court of competent jurisdiction; nor, after
any such sale or sales, claim or exercise any right under any statute heretofore
or hereafter enacted to redeem the property so sold or any part thereof and
Grantor hereby expressly waives all benefit or advantage of any such law or
laws, and covenants not to hinder, delay or impede the execution of any power
herein granted or delegated to Trustee or Beneficiary, but to suffer and permit
the execution of every power as though no such law or laws had been made or
enacted. Grantor, for itself and all who may claim under it, waives, to the
extent that it lawfully may, all right to have the Mortgaged Property marshaled
upon any foreclosure hereof.
Section 2.08. Intentionally Omitted.
Section 2.09. Beneficiary's Rights Concerning Application of Amounts
Collected. Notwithstanding anything to the contrary contained herein, upon the
occurrence of an Event of Default, Beneficiary may apply, to the extent
permitted by law, any amount collected hereunder to principal, interest or any
other sum due under the Note or otherwise in respect of the Loan in such order
and amounts, and to such obligations, as Beneficiary shall elect in its sole and
absolute discretion.
Section 2.10. Additional Advances. This Deed shall secure, in addition
to the original indebtedness and accrued interest thereon, any additional
advances and any expenditures made by Beneficiary as determined in its sole
discretion for taxes, special assessments, insurance premiums, costs of
completing the construction of unfinished Improvements, if any, costs of repair,
maintenance and preservation of said Improvements, utility charges, delinquent
payment fees, attorneys' fees and other charges, all of which shall bear
interest at the Default Rate. It shall be lawful for the beneficiary of a
Certificate of Purchase covering the Premises to make expenditures for any of
the following: taxes,
25
special assessments, insurance premiums, costs of completing the construction of
unfinished Improvements, if any, costs of repair, maintenance and preservation
of said Improvements and utility charges, and upon filing receipts evidencing
payment of the same with Trustee or the Sheriff or other person authorized to
make and making said sale and issuing said Certificate of Purchase, such
payments or expenditures shall bear interest at the Default Rate. Before
redemption can be made from such foreclosure sale, the party redeeming shall be
required to pay, in addition to the amounts specified in said Certificate of
Purchase, the further and additional amounts represented by the foregoing
expenditures. Upon the occurrence of an Event of Default hereunder or
foreclosure and if, in the opinion of Beneficiary, it is necessary to complete
construction of any incomplete Improvements or make repairs, alterations or
renovations to the Premises and Improvements, it shall have the right to proceed
as it deems advisable, and in that connection, Grantor does hereby appoint
Beneficiary as its attorney-in-fact to do such things as are hereby provided
herein and such power of attorney is coupled with an interest in the said
property and is irrevocable.
ARTICLE III
CONCERNING TRUSTEE
Section 3.01. Trustee's Performance. Trustee, by its acceptance hereof,
covenants faithfully to perform and fulfill the trusts herein created. Trustee
shall not incur any personal liability hereunder, except for its own willful
neglect or misconduct, and 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 it hereunder, believed by it in good faith to be
genuine. Trustee shall be entitled to reimbursement for all expenses incurred by
it in the performance of its duties, and shall be entitled to reasonable
compensation for such of its services as shall be rendered.
Section 3.02. Resignation by Trustee. Trustee may resign at any time
upon giving thirty (30) days' notice to Grantor and Beneficiary.
Section 3.03. Removal of Trustee; Successors. Beneficiary may remove
Trustee at any time or from time to time and select a successor trustee. In the
event of the death, removal, resignation or refusal or inability to act of
Trustee, or in its sole discretion for any reason whatsoever, Beneficiary may,
without notice and without specifying any reason therefor, without any formality
other than designation by Beneficiary in writing and without applying to any
court, select and appoint a successor Trustee, and all powers, rights, duties
and authority of Trustee, as aforesaid, shall thereupon become vested in such
successor. In such connection, Beneficiary may, on its and Grantor's behalf,
execute, acknowledge and record an instrument or agreement of such substitution,
and Grantor hereby irrevocably appoints Beneficiary as its attorney-in-fact,
with full power of substitution, to do so. Such substitute trustee shall not be
required to give bond for the faithful performance of its duties unless required
by Beneficiary.
Section 3.04. Limitations Imposed by Law. It is understood by the
parties hereto that the foregoing sections of this Article III may be limited by
the provisions of applicable law.
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ARTICLE IV
MISCELLANEOUS
Section 4.01. Assignment of Rents. This Deed is intended to constitute
a present, absolute and irrevocable assignment of all of the Rents now or
hereafter accruing, and Grantor, without limiting the generality of the Granting
Clause hereof, specifically hereby presently, absolutely and irrevocably assigns
all of the Rents now or hereafter accruing to Beneficiary. The aforesaid
assignment shall be effective immediately upon the execution hereof and is not
conditioned upon the occurrence of any Event of Default hereunder or any other
contingency or event, provided, however, that Beneficiary hereby grants to
Grantor the right and license to collect and receive the Rents as they become
due, and not in advance, so long as no Event of Default exists hereunder.
Immediately upon the occurrence of any such Event of Default, the foregoing
right and license shall be automatically terminated and of no further force or
effect. Nothing contained in this Section or elsewhere herein shall be construed
to make Beneficiary a mortgagee in possession unless and until Beneficiary
actually takes possession of the Mortgaged Property, nor to obligate Beneficiary
to take any action or incur any expense or discharge any duty or liability under
or in respect of any leases or other agreements relating to the Mortgaged
Property or any part thereof.
Section 4.02. Security Agreement and Fixture Filing. This Deed
constitutes a security agreement, with Grantor as the "debtor" and Beneficiary
as the "secured party", under the Uniform Commercial Code as adopted and
applicable in the State of Colorado (hereinafter, the "Uniform Commercial Code")
with respect to the Chattels and such other of the Mortgaged Property which is
personal property or which are fixtures and not yet realty, and Grantor hereby
grants a security interest to Beneficiary in such portions of the Mortgaged
Property. In addition to the rights and remedies granted to Beneficiary by other
applicable law or hereby, Beneficiary shall have all of the rights and remedies
with respect to the Chattels and such other personal property as are granted to
a secured party under the Uniform Commercial Code, including, without
limitation, taking possession of, holding and selling the Chattels and such
other personal property. Grantor will execute and deliver to Beneficiary all
financing statements that may from time to time be required by Beneficiary to
establish and maintain the validity and priority of the security interest of
Beneficiary, or any modification thereof, and pay all costs and expenses of any
searches reasonably required by Beneficiary. Upon Beneficiary's request after an
Event of Default, Grantor shall promptly and at its expense assemble the
Chattels and such other personal property and make the same available to
Beneficiary at a convenient place acceptable to Beneficiary. Grantor, after an
Event of Default, shall pay to Beneficiary on demand, with interest at the
Default Rate, any and all expenses, including attorneys' fees, incurred by
Beneficiary in protecting its interest in the Chattels and such other personal
property and in enforcing its rights with respect thereto. Any notice of sale,
disposition or other intended action by Beneficiary with respect to the Chattels
and such other personal property sent to Grantor in accordance with the
provisions hereof at least five (5) days prior to such action shall constitute
reasonable notice to Grantor. Any requirement for reasonable notice of the time
and place of any public sale, or of the time after which any private sale or
other disposition is to be made, will be satisfied by Beneficiary's giving of
27
such notice to Grantor at least five (5) days prior to the time of any public
sale or the time after which any private sale or other intended disposition is
to be made. The proceeds of any such sale or disposition, or any part thereof,
may be applied by Beneficiary to the payment of the indebtedness secured hereby
in such order and proportions as Beneficiary in its discretion shall deem
appropriate. Notwithstanding the foregoing, Beneficiary may, at its option,
dispose of such property in accordance with Beneficiary's rights and remedies
with respect to the real property pursuant to the provisions of this Deed, in
lieu of proceeding under the Uniform Commercial Code. Some of the items of
Mortgaged Property described herein are goods that are or are to become fixtures
related to the real estate described herein, and it is intended that, as to
those goods, this Deed shall be effective as a financing statement filed as a
fixture filing from the date of its filing for record in the real estate records
of the county in which the Premises is situated. To the extent Grantor may
lawfully do so and without limiting any rights and/or privileges herein granted
to Beneficiary, Grantor agrees that Beneficiary and/or Trustee and any successor
Trustee may dispose of any or all of the Chattels at the same time and place and
after giving the same notices provided in this Deed in connection with a
non-judicial foreclosure sale under the terms and conditions set forth in
Article II, Section 2.01, or III of this Deed. In this connection, Grantor
agrees that the sale may be conducted by Trustee or successor Trustee; that the
sale of the real estate and improvements described in this Deed and the Chattels
or any part thereof, may be sold separately or together; and that in the event
the Premises and the Chattels or any part thereof are sold together, Beneficiary
will not be obligated to allocate the consideration received as between the
Premises and the Chattels.
Section 4.03. Application of Certain Payments. In the event that all or
any part of the Mortgaged Property is encumbered by one or more deeds of trust
held by or for the benefit of Beneficiary, Grantor hereby irrevocably authorizes
and directs Beneficiary to apply any payment received by Beneficiary in respect
of any note secured hereby or by any other such deed of trust to the payment of
such of said notes as Beneficiary shall elect in its sole and absolute
discretion, and Beneficiary shall have the right to apply any such payment in
reduction of principal and/or interest and in such order and amounts as
Beneficiary shall elect in its sole and absolute discretion without regard to
the priority of the deed of trust securing the note so repaid or to contrary
directions from Grantor or any other party.
Section 4.04. Severability. In the event any one or more of the
provisions contained herein or in the Note shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, but this Deed
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein or therein.
Section 4.05. Modifications and Waivers in Writing. No provision hereof
may be changed, waived, discharged or terminated orally or by any other means
except an instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought. Any agreement hereafter
made by Grantor and Beneficiary relating hereto shall be superior to the rights
of the holder of any intervening or subordinate lien or encumbrance.
28
Section 4.06. Notices. All notices, demands, consents, approvals and
statements required or permitted hereunder shall be in writing and shall be
deemed to have been sufficiently given or served for all purposes when presented
personally, three (3) days after mailing by registered or certified mail,
postage prepaid, or one (1) day after delivery to a nationally recognized
overnight courier service providing evidence of the date of delivery, if to
Grantor at its address stated above, with a copy to Xxxxxx X. Xxxxx, Esq.,
Jenkens & Xxxxxxxxx, 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000-0000, and
if to Beneficiary to its address stated above, or at such other address of which
a party shall have notified the party giving such notice in accordance with the
provisions of this Section.
Section 4.07. Successors and Assigns. All of the grants, covenants,
terms, provisions and conditions herein shall run with the land and shall apply
to, bind and inure to the benefit of, the successors and assigns of Grantor, the
successors in trust of Trustee and the endorsees, transferees, successors and
assigns of Beneficiary.
Section 4.08. Limitation on Interest. Anything herein or in the Note to
the contrary notwithstanding, the obligations of Grantor hereunder and under the
Note shall be subject to the limitation that payments of interest shall not be
required to the extent that receipt of any such payment by Beneficiary would be
contrary to provisions of law applicable to Beneficiary limiting the maximum
rate of interest that may be charged or collected by Beneficiary.
Section 4.09. Counterparts. This Deed may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original; and all such counterparts shall together constitute but one and
the same deed.
Section 4.10. Substitute Deeds. Grantor and Beneficiary shall, upon
their mutual agreement to do so, execute such documents as may be necessary in
order to effectuate the modification hereof, including the execution of
substitute deeds of trust, so as to create two (2) or more liens on or security
titles in respect of the Mortgaged Property in such amounts as may be mutually
agreed upon but in no event to exceed, in the aggregate, the unpaid principal
portion of the Note Amount; in such event, Grantor covenants and agrees to pay
the reasonable fees and expenses of Beneficiary and its counsel in connection
with any such modification.
Section 4.11. Beneficiary's Sale of Interests in Loan. Grantor
recognizes that Beneficiary may sell and transfer interests in the Loan to one
or more participants or assignees and that all documentation, financial
statements, appraisals and other data, or copies thereof, relevant to Grantor,
any Guarantor or the Loan, may be exhibited to and retained by any such
participant or assignee or prospective participant or assignee.
Section 4.12. No Merger of Interests. Unless expressly provided
otherwise, in the event that ownership hereof and title to the fee and/or
leasehold estates in the Premises encumbered hereby shall become vested in the
same person or entity, this Deed shall not merge in said title but shall
continue to be and remain a valid and subsisting lien and/or trust deed on said
estates in the Premises for the amount secured hereby.
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Section 4.13. CERTAIN WAIVERS. GRANTOR EXPRESSLY AND UNCONDITIONALLY
WAIVES BY EXECUTION HEREOF, AND BENEFICIARY WAIVES BY ACCEPTANCE HEREOF, IN
CONNECTION WITH ANY FORECLOSURE OR SIMILAR ACTION OR PROCEDURE BROUGHT BY
BENEFICIARY ASSERTING AN EVENT OF DEFAULT UNDER CLAUSE (A) OF SECTION 2.01 OF
THIS DEED, ANY AND EVERY RIGHT IT MAY HAVE TO A TRIAL BY JURY.
Section 4.14. GOVERNING LAW. THE PERFORMANCE REQUIRED BY THIS DEED
SHALL, INSOFAR AS IS POSSIBLE, BE RENDERED TO THE BENEFICIARY AT ITS OFFICE IN
TENNESSEE. GRANTOR AND BENEFICIARY INTEND THAT THE VALIDITY AND CONSTRUCTION OF
THE OBLIGATIONS SECURED BY THIS DEED BE GOVERNED BY THE LAWS OF THE STATE OF
TENNESSEE INCLUDING ALL OBLIGATIONS AND LIABILITIES HEREUNDER WITH RESPECT TO
THE PAYMENT OF INTEREST OR ANY OTHER COMPENSATION FOR THE USE, FORBEARANCE OR
DETENTION OF MONEY. THIS DEED SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TENNESSEE, WITHOUT REFERENCE TO THE CONFLICTS OF LAW
PRINCIPLES OF THAT STATE, EXCEPT ONLY TO THE EXTENT THAT COLORADO LAW EXPRESSLY
PROVIDES THAT IT GOVERNS AND THAT A CONTRARY AGREEMENT BY THE PARTIES IS
INEFFECTIVE AND EXCEPT THAT THE LAW OF THE STATE OF COLORADO SHALL APPLY TO ANY
AND ALL ACTS WITH RESPECT TO THE CREATION AND PRIORITY OF THE LIEN OF THE DEED
AND ASSIGNMENT OF LEASES AND RENTS ON THE MORTGAGED PROPERTY HEREBY EVIDENCED
AND FORECLOSURE BY TRUSTEE ON THE MORTGAGED PROPERTY. GRANTOR, BENEFICIARY AND
TRUSTEE COVENANT AND AGREE TO TAKE ANY AND ALL ACTION WHICH MAY BE NECESSARY
UNDER COLORADO LAW WITH RESPECT TO FORECLOSURE UNDER THE LAWS OF THE STATE OF
COLORADO. SHOULD ANY OBLIGATION OR REMEDY UNDER THIS DEED BE INVALID OR
UNENFORCEABLE UNDER THE LAWS PROVIDED HEREIN TO GOVERN, THE LAWS OF ANOTHER
STATE WHOSE LAWS CAN VALIDATE AND APPLY TO THIS DEED SHALL APPLY.
30
IN WITNESS WHEREOF, this Deed has been duly executed and delivered by
Grantor.
APPLE SUITES, INC.,
a Virginia corporation
By /s/ Xxxxx X. Xxxxxx [L.S.]
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: President and Chairman
APPLE SUITES MANAGEMENT, INC.,
a Virginia corporation
By /s/ Xxxxx X. Xxxxxx [L.S.]
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: President, CEO and Chairman
XXXXX XX XXXXXXXX
XXXX XX XXXXXXXX
Xx the 28th day of June, A.D. 2000 personally appeared before me Xxxxx
X. Xxxxxx who being by me duly sworn did say, for himself, that he is the
President and Chairman of Apple Suites, Inc., that he executed the above
instrument on behalf of said corporation by authority of a resolution of its
board of directors and said Xxxxx X. Xxxxxx duly acknowledged to me that said
corporation executed the same.
/s/ Xxxxxxxxx X. Xxxxx
-------------------------------------
Notary Public
Residing at:
000 X. Xxxx Xxxxxx
-------------------------------------
Xxxxxxxx, XX 00000
-------------------------------------
My commission expires:
6/30/03
------------------------
Notary Seal
XXXXX XX XXXXXXXX
XXXX XX XXXXXXXX
Xx the 28th day of June, A.D. 2000 personally appeared before me Xxxxx
X. Xxxxxx who being by me duly sworn did say, for himself, that he is the
President, CEO and Chairman of Apple Suites Management, Inc., that he executed
the above instrument on behalf of said corporation by authority of a resolution
of its board of directors and said Xxxxx X. Xxxxxx duly acknowledged to me that
said corporation executed the same.
/s/ Xxxxxxxxx X. Xxxxx
-------------------------------------
Notary Public
Residing at:
000 X. Xxxx Xxxxxx
-------------------------------------
Xxxxxxxx, XX 00000
-------------------------------------
My commission expires:
6/30/03
------------------------
Notary Seal
[Boulder]
SCHEDULE "A"
PARCEL I:
Xxx 0,
XXX XXXXXXX XX XXX XXXXXXX
Xxxx of Boulder, County of Boulder, State of Colorado
according to the Plat which is recorded
in Plan File P-22, F-3, #26, 27 and 28.
PARCEL II:
A non-exclusive easement over and across that portion of Xxx 0, Xxx Xxxxxxx on
the Parkway, for ingress and egress, for Lots 4 and 5, The Xxxxxxx on the
Parkway, to and from Baseline Road, described as follows:
A strip of land 30.00 feet in width located in the Northeast 1/4 of the
Xxxxxxxxx 0/0 xx Xxxxxxx 0, Xxxxxxxx 0 Xxxxx, Xxxxx 70 West of the 6th P.M., THE
XXXXXXX ON THE PARKWAY, a subdivision in the City of Boulder, County of Boulder,
State of Colorado, said strip of land extending from a line that bears North
00(degree) 02' 30" West and South 00(degree) 02' 30" East through the True Point
of Beginning, Easterly to a line that bears North 00(degree) 02' 30" West and
South 00(degree) 02' 30" East through the Point of Termination and being 15.00
feet on each side of the following described Centerline:
Commencing at the Northwest Corner of the Northeast 1/4 of the Northwest 1/4 of
said Section 4, from which the North 1/4 Corner of said Section 4 bears North
89(degree) 57' 30" East, 1330.76 feet, thence North 89(degree) 57' 30" East,
30.00 feet along the North line of the Northwest 1/4 of said Section 4 to the
Northeast Corner of Xxxxxxx Xxxxxxx, a Subdivision in the County of Boulder,
State of Colorado, according to the recorded plat thereof; thence South
00(degree) 26' 50" West, 75.46 feet along the East line of said Xxxxxxx Xxxxxxx
to the Southwest Corner of that tract of land conveyed to the City of Boulder as
described in Warranty Deed recorded on Film 775 as Reception No. 022428 of the
records of Boulder County, Colorado; thence continuing South 00(degree) 26' 50"
West, 201.93 feet along the East line of said Xxxxxxx Xxxxxxx; thence north
89(degree) 57' 30" East, 170.00 feet; thence South 00(degree) 26' 50" West,
50.38 feet; thence North 89(degree) 57' 30" East, 218.20 feet; thence North
89(degree) 57' 30" East, 73.00 feet; thence North 00(degree) 02' 30" West, 34.27
feet to the TRUE POINT OF BEGINNING;
Thence South 89(degree) 13 '50" East, 142.41 feet to the POINT OF TERMINATION.
SCHEDULE "A" (CONTINUED)
PARCEL III:
A non-exclusive easement over and across that portion of Xxx 0, Xxx Xxxxxxx on
the Parkway, for ingress and egress for Xxx 0, Xxx Xxxxxxx on the Parkway, to
and from Baseline Road, described as follows:
A strip of land 30.00 feet in width located in the Northeast 1/4 of the
Xxxxxxxxx 0/0 xx Xxxxxxx 0, Xxxxxxxx 0 Xxxxx, Xxxxx 70 West of the 6th P.M., THE
XXXXXXX ON THE PARKWAY, a subdivision in the City of Boulder, County of Boulder,
State of Colorado, said strip of land extending from a line that bears North
00(degree)02'30" West and South 00(degree)02'30" East through the True Point of
Beginning, Easterly and Southeasterly to a line that bears North
41(degree)43'50" West and South 41(degree)43'50" East through the Point of
Termination and being 15.00 feet on each side of the following described
Centerline:
Commencing at the Northwest Corner of the Northeast 1/4 of the Northwest 1/4 of
said Section 4, from which the North 1/4 Corner of said Section 4 bears North
89(degree)57'30" East, 1330.76 feet, thence North 89(degree)57'30" East, 30.00
feet along the North line of the Northwest 1/4 of said Section 4 to the
Northeast Corner of Xxxxxxx Xxxxxxx, a Subdivision in the County of Boulder,
State of Colorado, according to the recorded plat thereof; thence South
00(degree)26'50" West, 75.46 feet along the East line of said Xxxxxxx Xxxxxxx to
the Southwest Corner of that tract of land conveyed to the City of Boulder as
described in Warranty Deed recorded on Film 775 as Reception No. 022428 of the
records of Boulder County, Colorado; thence continuing South 00(degree)26'50"
West, 201.93 feet along the East line of said Xxxxxxx Xxxxxxx; thence North
89(degree)57'30" East, 170.00 feet; thence South 00(degree)26'50" West, 50.38
feet; thence North 89(degree)57'30" East, 218.20 feet; thence North
89(degree)57'30" East, 73.00 feet; thence North 00(degree)02'30" West, 34.27
feet; thence South 89(degree)13'50" East, 142.41 feet to the TRUE POINT OF
BEGINNING;
Thence South 89(degree)13' 50" East, 257.49 feet to a point of curve to the
right;
Thence Southeasterly 53.89 feet along the arc of said curve to a point tangent,
said arc having a radius of 65.00 feet, a central angle of 47(degree) 30' 00"
and being subtended by a chord that bears South 65(degree) 28' 50" East, 52.36
feet; thence South 41(degree) 43' 50" East, 124.39 feet to a point of curve to
the right;
Thence Southeasterly, 76.74 feet along the arc of said curve to a point tangent,
said arc having a radius of 365.00 feet, a central angle of 12(degree) 02' 45"
and being subtended by a chord that bears South 35(degree) 42' 28" East, 76.60
feet;
Thence South 29(degree)41' 05" East, 111.30 feet to a point of curve to the
right;
SCHEDULE "A" (CONTINUED)
Thence Southeasterly, 72.92 feet along the arc of said curve to a point tangent,
said arc having a radius of 365.00 feet, a central angle of 11(degree) 26' 46"
and being subtended by a chord that bears South 23(degree) 57' 42" East, 72.80
feet;
Thence South 18(degree)14' 19" East, 62.01 feet to a point of curve to the
right;
Thence Southwesterly, 110.28 feet along the arc of said curve to a point
tangent, said arc having a radius of 95.00 feet, a central angle of 66(degree)
30' 33" and being subtended by a chord that bears South 15(degree) 00' 57" West,
104.19 feet;
Thence South 48(degree) 16' 13" West, 17.99 feet to the POINT OF TERMINATION.
PARCEL IV:
A non-exclusive easement over and across that portion of Xxx 0, Xxx Xxxxxxx on
the Parkway, for ingress and egress, for Xxx 0, Xxx Xxxxxxx on the Parkway, to
and from Baseline Road, described as follows:
A tract of land located in the Northeast 1/4 of the Xxxxxxxxx 0/0 xx Xxxxxxx 0,
Xxxxxxxx 0 Xxxxx, Xxxxx 70 West of the 6th P.M., THE XXXXXXX ON THE PARKWAY, a
subdivision in the City of Boulder, County of Boulder, State of Colorado,
described as follows:
Commencing at the Northwest Corner of the Northeast 1/4 of the Northwest 1/4 of
said Section 4, from which the North 1/4 Corner of said Section 4 bears North
89(degree) 57' 30" East, 1330.76 feet, thence North 89(degree) 57' 30" East,
30.00 feet along the North line of the Northwest 1/4 of said Section 4 to the
Northeast Corner of Xxxxxxx Xxxxxxx, a Subdivision in the County of Boulder,
State of Colorado, according to the recorded plat thereof; thence South
00(degree) 26' 50" West 75.46 feet along the East line of said Xxxxxxx Xxxxxxx
to the Southwest Corner of that tract of land conveyed to the City of Boulder as
described in Warranty Deed recorded on Film 775 as Reception No. 022428 of the
records of Boulder County, Colorado; thence continuing South 00(degree) 26' 50"
West, 201.93 feet along the East line of said Xxxxxxx Xxxxxxx; thence North
89(degree) 57' 30" East, 170.00 feet; thence South 00(degree) 26' 50" West,
50.38 feet, thence North 89(degree) 57' 30" East, 218.20 feet to the TRUE POINT
OF BEGINNING;
Thence North 89(degree)57' 30" East, 73.00 feet;
Thence North 00(degree)02' 30" West, 49.27 feet;
Thence North 89(degree)13' 50" West, 2.00 feet;
SCHEDULE "A" (CONTINUED)
Thence North 00(degree) 02' 30" West, 208.46 feet to the South line of that
tract of land conveyed to the City of Boulder as described in Warranty Deed
recorded on Film 775 as Reception No. 022421 of the records of Boulder County,
Colorado;
Thence South 89(degree)57' 30" West, 69.00 feet along the South line of that
tract of land as described on said Film 775 as Reception No. 022421;
Thence South 00(degree)02' 30" East, 207.48 feet;
Thence North 89(degree) 13' 50" West, 2.00 feet to a point from which the True
Point of Beginning bears South 00(degree) 02' 30" East;
Thence South 00(degree) 02' 30" East, 50.30 feet to the TRUE POINT OF BEGINNING.
