Exhibit 10.197
After Recording Mail to:
Xxxx, Xxxx & Xxxxx LLC
00 Xxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Allstate Life Insurance Company
Loan No. 122498 and 122499
DEED OF TRUST, ASSIGNMENT OF LEASES,
RENTS AND CONTRACTS, SECURITY AGREEMENT
AND FIXTURE FILING
GRANTOR: INLAND WESTERN LAKEWOOD, L.L.C.
GRANTEE/BENEFICIARY: ALLSTATE LIFE INSURANCE COMPANY
GRANTEE/TRUSTEE CHICAGO TITLE INSURANCE COMPANY
LEGAL DESCRIPTION: (Abbreviated Form):
Lakewood Towne Center
Xxxx 0, 0, 0, 0, 00 xxx 00 Xxxxx Xxxxx
and
Xxx 0, Xxxxx 0, Xxxx 0, 0, 0, 00, 00 and 29, Block 4, of
M&M Addition
Lakewood, Washington
Additional legal description is on Exhibit A
ASSESSOR'S TAX PARCEL
ACCOUNT NO(S).: 02-19-02-1-065; 400188-004-0; 02-19-02-1-052;
400188-001-1; 02-19-02-1-055; 02-19-02-1-060;
540000-007-0; 540000-070-0; 540000-046-1;
540000-047-1; 540000-048-0; 540000-067-0;
540000-071-1
DATED: JUNE 28, 2004
LOAN AMOUNT: $51,260,000
TABLE OF CONTENTS
ARTICLE SECTION DESCRIPTION PAGE NUMBER
------- ------- ----------- -----------
I. COVENANTS OF GRANTOR.....................................5
1.01. Performance of Obligations Secured.......................6
1.02. Insurance................................................6
1.03. Condemnation.............................................7
1.04. Damage to Property.......................................8
1.05. Escrow Fund for Condemnation and Insurance Proceeds.....10
1.06. Taxes, Liens and other Items............................12
1.07. Assignment of Leases, Contracts, Rents and Profits......13
1.08. Due on Sale or Encumbrance..............................17
1.09. Preservation and Maintenance of Property................18
1.10. Use of Property.........................................18
1.11. Alterations and Additions...............................19
1.12. Offset Certificates.....................................19
1.13. Beneficiary's Costs and Expenses........................20
1.14. Protection of Security; Costs and Expenses..............20
1.15. Grantor's Covenants Respecting Collateral...............22
1.16. Covenants Regarding Financial Statements................24
1.17. Environmental Covenants.................................26
1.18. Further Assurances......................................27
1.19. Grantor's Continued Existence...........................27
II. EVENTS OF DEFAULT.......................................28
2.01. Monetary and Performance Defaults.......................28
2.02. Bankruptcy, Insolvency, Dissolution.....................28
2.03. Misrepresentation.......................................29
2.04. Default under Subordinate Loans.........................29
2.05. Liens...................................................29
2.06. Judgments...............................................29
2.07. Leases..................................................30
2.08. Grantor's Continued Existence...........................30
2.09. Breach of Due on Sale or Encumbrance Provision..........30
2.10. Default under Related Agreements........................30
III. REMEDIES................................................30
3.01. Acceleration............................................30
3.02. Entry...................................................30
3.03. Judicial Action.........................................32
3.04. Power of Sale...........................................32
3.05. Discontinuance of Sale..................................33
3.06. Beneficiary's Remedies Respecting Collateral............33
ARTICLE SECTION DESCRIPTION PAGE NUMBER
------- ------- ----------- -----------
3.07. Proceeds of Sales.......................................33
3.08. Condemnation and Insurance Proceeds.....................34
3.09. Waiver of Marshalling, Rights of Redemption, Homestead
and Valuation.....................................34
3.10. Remedies Cumulative.....................................35
3.11. Nonrecourse.............................................35
3.12. Evasion of Prepayment Premium...........................37
IV. MISCELLANEOUS...........................................37
4.01. Severability............................................37
4.02. Certain Charges and Brokerage Fees......................37
4.03. Notices.................................................38
4.04. Grantor Not Released; Certain Beneficiary Acts......... 39
4.05. Inspection..............................................40
4.06. Release or Reconveyance or Cancellation.................40
4.07. Statute of Limitations..................................40
4.08. Interpretation..........................................40
4.09. Captions................................................40
4.10. Consent.................................................41
4.11. Delegation to Subagents.................................41
4.12. Successors and Assigns..................................41
4.13. Governing Law...........................................41
4.14. Substitution of Trustee.................................41
4.15. Changes in Taxation.....................................41
4.16. Maximum Interest Rate...................................42
4.17. Time of Essence.........................................42
4.18. Reproduction of Documents...............................42
4.19. No Oral Modifications...................................42
4.20. Further Assurances......................................42
4.21. Trustee Provisions......................................43
4.22. Waiver of Jury Trial....................................43
4.23. Nonagricultural Use.....................................43
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DEED OF TRUST, ASSIGNMENT OF LEASES, RENTS AND CONTRACTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS
DEED OF TRUST, ASSIGNMENT OF LEASES, RENTS AND CONTRACTS, SECURITY
AGREEMENT AND FIXTURE FILING is made as of June 28, 2004, from INLAND WESTERN
LAKEWOOD, L.L.C., a Delaware limited liability company, whose mailing address is
0000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 (herein, "Grantor"), to CHICAGO
TITLE INSURANCE COMPANY, a Missouri Corporation, whose mailing address is 000
Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000 (herein "Trustee"), in favor of
ALLSTATE LIFE INSURANCE COMPANY, an Illinois insurance corporation, whose
mailing address is x/x Xxxxxxxx Xxxxxxxxxxx, XXX, Xxxxxxxx Xxxxx Xxxxx, Xxxxx
X0X, 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx, 00000 (herein, "Beneficiary").
GRANTOR, in consideration of the indebtedness herein recited and the
trust herein created, hereby irrevocably grants, conveys, transfers and assigns
to Trustee, its successors and assigns, in trust, with power of sale and right
of entry and possession, all of Grantor's estate, right, title and interest in,
to and under that certain real property located in Xxxxxx County, Washington,
more particularly described in EXHIBIT A attached hereto and incorporated herein
by this reference (the "Land");
TOGETHER with all of Grantor's now or hereafter acquired estate, right,
title and interest in, to and under all buildings, structures, improvements and
fixtures now existing or hereafter erected on the Land and all right, title and
interest, if any, of Grantor in and to the streets and roads, opened or
proposed, abutting the Land to the center lines thereof, and strips within or
adjoining the Land, the air space and right to use said air space above the
Land, all rights of ingress and egress on or within the Land, all easements,
rights and appurtenances thereto or used in connection with the Land, including,
without limitation, all lateral support, alley and drainage rights, all
revenues, income, rents, cash or security deposits, advance rental deposits,
profits, royalties, and other benefits thereof or arising from the use or
enjoyment of all or any portion thereof (subject however to the rights and
authorities given herein to Grantor to collect and apply such revenues, and
other benefits), all interests in and rights, royalties and profits in
connection with all minerals, oil and gas and other hydrocarbon substances
thereon or therein, and water stock, all options to purchase or lease, all
development or other rights relating to the Land or the operation thereof or
used in connection therewith (including, without limitation, all concurrency
rights, permits, prepaid utilities and impact fees of any nature, storm water
drainage rights and reservations, sanitary sewer rights and reservations,
potable water rights and reservations, allocations of traffic trips, use, rights
and reservations, law enforcement, library, park and educational fees, uses,
rights and reservations), including all Grantor's right, title and interest in
all fixtures, attachments, partitions, machinery, equipment, building materials,
appliances and goods of every nature whatever, whether now or hereafter located
on, or attached to, the Land, all of which, including replacements and additions
thereto, shall, to the fullest extent permitted by law and for the purposes of
this
Deed of Trust, be deemed to be real property and, whether affixed or
annexed thereto or not, be deemed conclusively to be real property; and Grantor
agrees to execute and deliver, from time to time, such further instruments and
documents as may be required by Beneficiary to confirm the legal operation and
effect of this
Deed of Trust on any of the foregoing. All of the foregoing
property described in this
Section (the "Improvements") together with the Land and the hereinafter defined
Collateral, shall be hereinafter referred to as the "Property".
GRANTOR FURTHER HEREBY GRANTS to Beneficiary a security interest in, and
assigns, all of Grantor's now existing or hereafter acquired right, title and
interest in the following:
(A) All equipment, fixtures, inventory, goods, farm goods,
instruments, appliances, furnishings, machinery, tools, raw materials, component
parts, work in progress and materials, and all other tangible personal property
of whatsoever kind, used or consumed in the improvement, use or enjoyment of the
Property now or any time hereafter owned or acquired by Grantor, wherever
located and all products thereof whether in possession of Grantor or whether
located on the Property or elsewhere;
(B) To the extent such general intangibles are assignable, all general
intangibles relating to the Property or the design, development, operation,
management and use of the Property (other than trademarks that contain the word
"Inland"), including, but not limited to, (1) all names under which or by which
the Property may at any time be owned and operated or any variant thereof, and
all goodwill in any way relating to the Property and all service marks and
logotypes used in connection therewith, (2) all permits, licenses,
authorizations, variances, land use entitlements, approvals, consents,
clearances, and rights obtained from governmental agencies issued or obtained in
connection with the Property, (3) all permits, licenses, approvals, consents,
authorizations, franchises and agreements issued or obtained in connection with
the construction, use, occupation or operation of the Property, (4) all
materials prepared for filing or filed with any governmental agency, and (5) all
of the books and records of Grantor in any way relating to construction or
operation of the Property;
(C) All shares of stock or partnership interest or other evidence of
ownership of any part of the Property that is owned by Grantor in common with
others, including all water stock relating to the Property, if any, and all
documents or rights of membership in any owners' or members' association or
similar group having responsibility for managing or operating any part of the
Property provided, however, that the foregoing shall not include any ownership
interests in Grantor;
(D) All accounts, deposit accounts, supporting obligations,
letter-of-credit rights, tax or insurance escrows or other escrows held pursuant
to or in connection with this
Deed of Trust or otherwise in connection with the
Property (including, without limitation, the escrow established pursuant to that
certain Escrow and Leasing Agreement dated as of June 25, 2004, as amended,
among Grantor, MBK Northwest, LLC and Chicago Title Insurance Company, as
escrowee, including the funds and securities held under such escrow), accounts
receivable, instruments, documents, documents of title, general intangibles,
rights to payment and contract rights of every kind, all of Grantor's rights,
direct or indirect, under or pursuant to any and all construction, development,
financing, guaranty, indemnity, maintenance, management, service, supply and
warranty agreements, commitments, contracts, subcontracts, insurance policies,
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licenses and bonds now or anytime hereafter arising from construction on the
Land or the use or enjoyment of the Property to the extent such are assignable;
(E) All condemnation and eminent domain proceeds (including payments
in lieu thereof) and insurance proceeds related to the Property;
TOGETHER with all additions to, substitutions for and the products of all
of the above, and all proceeds therefrom, whether cash proceeds or noncash
proceeds, received when any such property (or the proceeds thereof) is sold,
used, exchanged, leased, licensed, or otherwise disposed of, whether voluntarily
or involuntarily. Such proceeds shall include any of the foregoing specifically
described property of Grantor acquired with cash proceeds. Together with, and
without limiting the above items, all Goods, Accounts, Documents, Instruments,
Money, Chattel Paper, Deposit Accounts, Letter-of-Credit Rights, Investment
Property, Equipment and General Intangibles arising from or used in connection
with the Property, as those terms are defined in the Uniform Commercial Code
from time to time in effect in the state in which the Property is located. (All
of the foregoing including such products and proceeds thereof, are collectively
referred to as "Collateral".)
To the extent any of the Collateral described herein is personal property
owned by a tenant of the Property, then the security interest therein granted by
this
Deed of Trust shall extend only to the reversionary interest of Grantor, if
any, to such personal property.
GRANTOR HEREBY WARRANTS AND REPRESENTS that it is the owner in fee title
to the Property (and the Collateral) free and clear of all liens and
encumbrances except for: the lien for current real estate taxes not yet due and
payable; and such other encumbrances as are set forth in EXHIBIT C attached
hereto and incorporated herein by this reference.
Grantor (as Debtor) hereby grants to Beneficiary (as Creditor and Secured
Party) a security interest in the Property, and this
Deed of Trust constitutes a
security agreement under the Washington Uniform Commercial Code. Grantor hereby
authorizes Beneficiary at any time and from time to time to file any initial
financing statements, amendments thereto and continuation statements with or
without signature of Grantor as authorized by applicable law, as applicable to
the Collateral. For purposes of such filings, Grantor agrees to furnish any
information requested by Beneficiary promptly upon request by Beneficiary.
Grantor also ratifies its authorization for Beneficiary to have filed any like
initial financing statements, amendments thereto or continuation statements if
filed prior to the date of this
Deed of Trust.
The personal property in which Beneficiary has a security interest
includes goods which are or shall become fixtures on the Property. This
Deed of
Trust is intended to serve as a fixture filing pursuant to the terms of the
applicable provisions of the Uniform Commercial Code of the State of Washington
and the provisions of Exhibit B attached hereto are, for that purpose,
incorporated herein. This filing is to be recorded in the real estate records of
the appropriate city, town or county in which the Property is located. In that
regard, the following information is provided:
3
Name of Debtor: INLAND WESTERN LAKEWOOD, L.L.C.,
a Delaware limited liability company
Organizational Number
of Debtor 3809716
Address of Debtor: See Section 4.03 hereof
Name of Secured Party: Allstate Life Insurance Company, an Illinois
insurance corporation
Address of Secured Party: See Section 4.03 hereof
Grantor warrants and agrees that there is no financing statement covering
the foregoing Collateral, the Property, or any part thereof, on file in any
public office.
HOWEVER, THIS IS A DEED OF TRUST, AND THIS CONVEYANCE IS MADE IN TRUST
FOR THE FOLLOWING USES AND TRUST, AND FOR NO OTHER PURPOSES, AND FOR THE PURPOSE
OF SECURING, IN SUCH ORDER OF PRIORITY AS BENEFICIARY MAY ELECT:
(A) The repayment of the indebtedness evidenced by (1) that certain
Deed of Trust Note A ("Note A") of even date herewith with a maturity
date of June 1, 2009, executed by Grantor and payable to the order of
Beneficiary, in the principal sum of FORTY FOUR MILLION DOLLARS
($44,000,000), with interest thereon as provided therein and all late
charges, loan fees, commitment fees, Prepayment Premium (as described in
Note A), and all extensions, renewals, modifications, amendments and
replacements of Note A, and (2) that certain Deed of Trust Note B ("Note
B" and, together with Note A, the "Note" or the "Notes") of even date
herewith with a maturity date of July 1, 2005, executed by Grantor and
payable to the order of Beneficiary, in the principal sum of SEVEN
MILLION TWO HUNDRED SIXTY THOUSAND DOLLARS ($7,260,000), with interest
thereon as provided therein and all late charges, loan fees, commitment
fees, Prepayment Premium (as described in Note B), and all extensions,
renewals, modifications, amendments and replacements of Note B;
(B) The payment of all other sums which may be advanced by or
otherwise be due to Trustee or Beneficiary under any provision of this Deed of
Trust or under any other instrument or document referred to in clause (C) below
or otherwise, with interest thereon at the rate provided herein or therein;
(C) The performance of each and every covenant and agreement of
Grantor contained (1) herein, in the Note, or in any note evidencing a Future
Advance (as hereinafter defined), and (2) in the obligations of Grantor upon any
and all pledge or other security agreements, loan agreements, disbursement
agreements, supplemental agreements, environmental indemnity agreements (the
foregoing shall not include the Commitment Letter between Grantor and
4
Beneficiary), assignments (both present and collateral) and all instruments of
indebtedness or security now or hereafter executed by Grantor in connection with
any indebtedness referred to in clauses (A), (B), (D), (E) or (F) of this
Section (including but not limited to the Assignment of Leases and Rents of even
date herewith from Grantor to Beneficiary (the "Assignment of Leases and Rents")
or for the purpose of supplementing or amending this Deed of Trust or any
instrument secured hereby (all of the foregoing in this clause (C), as the same
may be amended, modified or supplemented from time to time, together with the
Note and this Deed of Trust, being referred to hereinafter as "Related
Agreements") and all costs and expenses, including reasonable attorneys' and
paralegals' fees with respect to all such documents, including, without
limitation, the negotiation and drafting of any loan settlement or workout
agreement;
(D) All costs, expenses, losses, damages and other charges sustained
or incurred by Beneficiary because of: (1) Grantor's default in payment or
performance, as the case may be, of any provision contained in this Deed of
Trust or in any Related Agreement; (2) defense of actions instituted by Grantor
or a third party against Beneficiary arising out of or related to the loan
evidenced by the Note (the "Loan"), or in the realizing upon, protecting,
perfecting or defending the Property or the Collateral; or (3) actions brought
or defended by Beneficiary in enforcing Beneficiary's security interest in the
Property or the Collateral. All of these costs and expenses include reasonable
attorneys' fees and paralegals' fees, whether incurred with respect to
collection, litigation, bankruptcy proceedings, interpretation, dispute,
negotiation, trial, appeal, defensive actions instituted by a third party
against mortgagee, or enforcement or any judgment based upon the Note, this Deed
of Trust, or any of the Related Agreements, whether or not suit is brought to
collect such amounts or to enforce such rights or, if brought, is prosecuted to
judgment;
(E) All costs, expenses, and amounts arising under or pursuant to any
indemnity contained within the Note, this Deed of Trust, or in any of the
Related Agreements, or in any separate agreement executed by Grantor in favor of
Beneficiary; and
(F) The repayment of any other loans or advances, with interest
thereon, hereafter made to Grantor (or any successor in interest to Grantor as
the owner of the Property or any part thereof) by Beneficiary when the
promissory note evidencing the loan or advance specifically states that said
note is secured by this Deed of Trust, together with all extensions, renewals,
modifications, amendments and replacements thereof (herein and in the Related
Agreements "Future Advance").
ARTICLE I
COVENANTS OF GRANTOR
To protect the security of this Deed of Trust, and as additional
consideration to Beneficiary, Grantor covenants, warrants and agrees as follows:
5
1.01. PERFORMANCE OF OBLIGATIONS SECURED. Grantor shall promptly pay
when due the principal of and interest on the indebtedness evidenced by the
Note, the principal of and interest on any Future Advance, any Prepayment
Premium and late charges provided for in the Note or in any note evidencing a
Future Advance, and shall further perform fully and in a timely manner all other
obligations of Grantor contained herein or in the Note or in any note evidencing
a Future Advance or in any of the Related Agreements.
1.02. INSURANCE. For all times during the period there remains any
indebtedness under the Note, or any and all other indebtedness (including
without limitation Future Advances) secured by this Deed of Trust, Grantor shall
keep the Property insured against all risks or hazards as Beneficiary may
reasonably require. Such insurance shall be in policy form, amount and coverage
reasonably satisfactory to Beneficiary, including, but not limited to:
(A) Fire and extended coverage on an "all risk" replacement cost
basis, in an amount equal to the insurable value of the Improvements, without
coinsurance or deducting for depreciation, containing a waiver of subrogation
clause and a deductible amount acceptable to Beneficiary;
(B) General public liability insurance, in such form, amount and
deductible satisfactory to Beneficiary, and naming Beneficiary c/o
Beneficiary's servicing agent, if any, as additional insured covering
Beneficiary's interest in the Property;
(C) Business interruption or rent loss insurance endorsement in an
amount at least equal to 100 percent of the sum of: annual debt service on the
Note, the annual debt service on any other financing permitted by Beneficiary,
ground rents, if any, and operating expenses (without contribution from Grantor
for a period of 12 months), including, without limitation, real estate taxes and
assessments and insurance, for the Property;
(D) Flood insurance (whether or not available through the National
Flood Insurance Program) sufficient to cover any damage which may be anticipated
in the event of flood unless Grantor has provided Beneficiary evidence
satisfactory to Beneficiary that no portion of the Property is located within
the boundaries of the 100 year flood plain (Flood Zone A);
(E) "Dram shop" insurance if alcoholic beverages are sold on the
Property;
(F) Boiler and machinery insurance when risks covered thereby are
present and Beneficiary requires such insurance; and
(G) Earthquake insurance if Beneficiary requires such insurance.
The insurance coverages described in subsections (A), (C), (D), (F), and
(G) above shall name Beneficiary c/o Beneficiary's servicing agent, if any,
under a standard noncontributory mortgagee loss payable clause (and naming
Beneficiary as loss payee for rent loss coverage) or otherwise directly insure
Beneficiary's interest in the Property. All losses under said insurance shall be
payable to Beneficiary in the manner provided in Sections 1.04 and 1.05 hereof.
All
6
policies of insurance required under this Section 1.02 shall be with a company
or companies with a policy rating of A and financial rating of at least Class X
in the most current edition of Best's Key Rating Guide and authorized to do
business in the state in which the Property is located. All policies of
insurance shall provide that they will not be canceled or modified without 30
days' prior written notice to Beneficiary. True copies of the above mentioned
insurance policies or evidence of such insurance (in the form of Xxxxx Form 28)
satisfactory to Beneficiary shall be delivered to and held by Beneficiary. True
copies of all renewal and replacement policies or evidences of such insurance
forms (Xxxxx Form 28) thereof shall be delivered to Beneficiary at least 30 days
before the expiration of the expiring policies. If any renewal or replacement
policy is not obtained as required herein, Beneficiary is authorized to obtain
the same in Grantor's name and at Grantor's expense. Beneficiary shall not by
the fact of failing to obtain any insurance, incur any liability for or with
respect to the amount of insurance carried, the form or legal sufficiency of
insurance contracts, solvency of insurance companies, or payment or defense of
lawsuits, and Grantor hereby expressly assumes full responsibility therefor and
all liability, if any, with respect thereto.
1.03. CONDEMNATION.
(A) Immediately upon obtaining knowledge of the commencement or threat
of any action in connection with (1) any condemnation, (2) any other taking of
the Property or any part thereof by any public authority or private entity
having the power of eminent domain, or (3) any conveyance in lieu of such
condemnation or taking of the Property or any part thereof ("Condemnation"),
Grantor shall notify Beneficiary in writing but in no event later than ten (10)
days after Grantor obtains knowledge of the commencement of or threat or
likelihood of a Condemnation. Beneficiary shall have the right, but not the
obligation, to participate in any proceedings relating to any Condemnation and
may, in its sole discretion, consent or withhold its consent to any settlement,
adjustment, or compromise of any claims arising from the Condemnation and no
such settlement, adjustment or compromise shall be final or binding upon
Beneficiary without Beneficiary's prior consent.
(B) Except as expressly provided in Section 1.03(C), if all or part of
the Property is taken by Condemnation and Beneficiary in its reasonable judgment
determines that the remainder of the Property, if any, cannot be operated as an
economically viable entity at substantially the same level of operations as
immediately prior to such Condemnation, then all proceeds of the Condemnation
("Condemnation Proceeds") shall be paid over to Beneficiary and shall be applied
first toward reimbursement of the costs and expenses (including reasonable
attorneys' and paralegals' fees) of Beneficiary, if any, in connection with the
recovery of such Condemnation Proceeds, and then, in the sole and absolute
discretion of Beneficiary and without regard to the adequacy of its security
under this Deed of Trust, shall be applied against all amounts due hereunder or
under the Note and any remaining Condemnation Proceeds shall be released to
Grantor. Partial prepayment of the Note under this Section 1.03(B) with
Condemnation Proceeds shall not be subject to the Prepayment Premium; however,
such partial prepayment shall not entitle Grantor to prepay the portion of the
Note remaining unpaid after application of the Condemnation Proceeds. Full or
partial prepayment of the balance shall
7
continue to be subject to the terms and conditions of the Note, including the
No-Prepayment Period and the Prepayment Premium described therein.
(C) If less than all of the Property is taken by Condemnation and
Beneficiary in its reasonable judgment determines that the remainder of the
Property can be operated as an economically viable entity at substantially the
same level of operations as immediately prior to such Condemnation, then Grantor
shall diligently restore the Property to a condition and use as close as
possible to its condition immediately prior to the Condemnation and all
Condemnation Proceeds shall be made available to Grantor for such restoration.
If the estimated cost of restoration, as reasonably determined by Beneficiary,
is equal to or less than One Hundred Fifty Thousand Dollars ($150,000), all
Condemnation Proceeds shall be released directly to Grantor for restoration of
the Property. If the estimated cost of restoration exceeds One Hundred Fifty
Thousand Dollars ($150,000), all Condemnation Proceeds shall be deposited into
an escrow fund in accordance with Section 1.05 below. Beneficiary shall have the
right to obtain an opinion of an independent contractor or engineer satisfactory
to Beneficiary, at Grantor's expense, to estimate the cost to restore the
remaining portion of the Property. If the amount of the Condemnation Proceeds is
not sufficient to restore the Property based on the opinion of an independent
contractor or engineer, subject to revision as restorations are made, Grantor
shall be obligated to pay the difference toward the restoration of the Property,
prior to the disbursement of any Condemnation Proceeds to, or for the account
of, Grantor.
(D) If an Event of Default exists at any time from the time of a
Condemnation through the completion of restoration and payment of any
Condemnation Proceeds, the use of the Condemnation Proceeds shall be governed by
the remedies set forth in Article III below. If an event has occurred which with
notice, the passage of time, or both, could become an Event of Default, then,
the Condemnation Proceeds shall be held by Beneficiary or in the Escrow Fund (as
defined below), as applicable, pending cure of such event prior to the
expiration of any applicable cure or grace period. The application of any
Condemnation Proceeds to the indebtedness secured hereby shall not cure or waive
any Event of Default hereunder, or invalidate any act done pursuant to any
notice thereof.
1.04. DAMAGE TO PROPERTY.
(A) Promptly upon obtaining knowledge of any damage to the Property or
any part thereof with an estimated cost of restoration in excess of Fifty
Thousand Dollars ($50,000), but in no event later than ten (10) days after
Grantor obtains such knowledge, Grantor shall notify Beneficiary of such damage
in writing. Grantor shall diligently restore the Property to the same condition
that existed immediately prior to the damage whether or not insurance proceeds
are sufficient for such restoration. All proceeds of any insurance on the
Property ("Insurance Proceeds") received by Grantor shall be applied to such
restoration. Beneficiary shall have the right to obtain an opinion of an
independent contractor or engineer satisfactory to Beneficiary, at Grantor's
expense, to estimate the cost to restore the Property to its original condition,
which opinion may be revised as restorations are made. If the amount of the
Insurance Proceeds is not sufficient to restore the Property based on an
independent contractor's or engineer's opinion,
8
subject to revision as restorations are made, Grantor shall be obligated to pay
the difference toward the restoration of the Property, prior to the application
of any Insurance Proceeds to such restoration as provided herein.
(B) If the estimated cost of restoration is equal to or less than One
Hundred Fifty Thousand Dollars ($150,000), Grantor shall promptly settle and
adjust any claims under the insurance policies which insure against such risks
and, upon receipt of the Insurance Proceeds, Trustee and Beneficiary shall
deliver such to Grantor for use in restoration of the Property.
(C) If the estimated cost of restoration is greater than One Hundred
Fifty Thousand Dollars ($150,000), Beneficiary shall have the right, but not the
obligation, to participate in the settlement of the insurance claims and may, in
its sole discretion, consent or withhold its consent to any settlement,
adjustment, or compromise of such insurance claims and no such settlement,
adjustment, or compromise shall be final or binding upon Beneficiary without its
prior consent. Upon settlement of insurance claims, and if Grantor can
demonstrate to the reasonable satisfaction of Beneficiary that the projected
ratio of Net Operating Income, as defined below, to annual debt service due
under the Notes and any other notes secured by the Property ("Debt Coverage
Ratio") will be at least one hundred five percent (105%) for the twelve (12)
months immediately following reconstruction of the Property, the Insurance
Proceeds shall be deposited into an escrow fund in accordance with Section 1.05
below.
As used in this Deed of Trust, "Net Operating Income" shall mean:
(i) all gross operating revenues anticipated to be received during the
following twelve-month period based on leases in effect as of the date of
calculation and only for such time as those leases are contracted to remain in
effect without expiration by their terms or optional termination by the tenant
(unless the tenant has waived its termination rights in writing or the term of
the lease has been extended in writing), including without limitation all
amounts to be received from tenants as payment of operating expenses (including
real estate taxes and insurance and/or other operating expenses reimbursed by
tenants) but not including refundable deposits, lease termination payments,
excess tenant improvement and leasing commission payments included as additional
rent, principal or interest payments received by Grantor on loans to tenants and
fees and reimbursements for work performed for tenants by Grantor, LESS:
(ii) all amounts, calculated on a pro forma basis, for the operation or
maintenance of the Property for the following 12 month period, including ground
rents, the cost of property management (which shall be no less than three
percent of gross revenues), maintenance, cleaning, security, landscaping,
parking maintenance and utilities, and other costs and expenses approved in
writing by Beneficiary and amounts reasonably estimated by Beneficiary for the
payment of real estate taxes and assessments and other taxes related to the
operation of the Property, insurance premiums, necessary repairs and future
replacements of equipment; payments under the Note shall not be included in Net
Operating Income.
9
Notwithstanding the foregoing, if any of the Related Agreements require a
historical calculation of Net Operating Income, it shall be calculated on a cash
basis for the previous twelve-month period as of the date of such calculation.
(D) If in the reasonable judgment of Beneficiary the conditions of
Section 1.04(C) cannot be satisfied, then at any time from and after the
occurrence of the damage, upon written notice to Grantor, Beneficiary may
declare the entire balance of the Note and/or any Future Advances then
outstanding and accrued and unpaid interest thereon, and all other sums or
payments required thereunder or under this Deed of Trust, without any Prepayment
Premium (provided there is no Event of Default hereunder), to be immediately due
and payable, and all Insurance Proceeds shall be applied by Beneficiary first to
the reimbursement of any costs or expenses incurred by Beneficiary in connection
with the damage or the determination to be made hereunder, and then to the
payment of the indebtedness secured by this Deed of Trust in such order as
Beneficiary may determine in its sole discretion.
(E) Notwithstanding any provision herein to the contrary, if an Event
of Default exists at any time from the time of damage through the completion of
restoration and the final release of any Insurance Proceeds to Grantor, the use
of the Insurance Proceeds shall be governed by the remedies set forth in Article
III below. If an event has occurred which with notice, the passage of time, or
both, could become an Event of Default, then the Insurance Proceeds shall be
held by Beneficiary or in the Escrow Fund, as applicable, pending cure of such
event prior to the expiration of any applicable cure or grace period. The
application of any Insurance Proceeds to the indebtedness secured hereby shall
not cure or waive any Event of Default hereunder or invalidate any act done
pursuant to any notice thereof.
1.05. ESCROW FUND FOR CONDEMNATION AND INSURANCE PROCEEDS.
(A) In the circumstances indicated above in subsections 1.03(C) and
1.04(C), all Condemnation Proceeds and Insurance Proceeds ("Proceeds") shall be
deposited in an interest bearing escrow fund ("Escrow Fund"). The escrow agent
and the form of the escrow agreement shall be reasonably satisfactory to
Beneficiary and Grantor. The costs and fees of such escrow agent shall be paid
by Grantor. If the amount of the Proceeds is not sufficient to restore the
Property based on an independent contractor's or engineer's opinion obtained by
Beneficiary at Grantor's expense, subject to revision as restorations are made,
Grantor shall be obligated to deposit in the Escrow Fund the difference between
the contractor's or engineer's estimate and the amount of the Proceeds or
deliver to the escrow agent an irrevocable, unconditional letter of credit
issued in the amount of such difference in a form and by a financial institution
acceptable to Beneficiary or other cash equivalent acceptable to Beneficiary.
Grantor's funds, if necessary, and the Proceeds shall be deposited into the
Escrow Fund and shall not be released by the escrow agent unless used to restore
the Property to its original condition and unless a disbursement agent
satisfactory to Beneficiary and Grantor approves such disbursements from time to
time. The escrow agreement shall provide that the escrow agent shall only
disburse funds to Grantor so long as the restoration work is being diligently
performed by Grantor and only after (1) Grantor has delivered to Beneficiary and
Beneficiary has approved the plans and specifications for the
10
restoration of the Property; (2) Grantor has executed a contract acceptable to
Beneficiary with a general contractor acceptable to Beneficiary for the
restoration of the Property; (3) the general contractor has submitted lien
waivers and/or releases, executed by the general contractor and all
subcontractors and suppliers which may be partial to the extent of partial
payments and which, in the case of releases, may be contingent upon payment if
the escrow agent makes payment directly to such contractor, subcontractor or
supplier; (4) Grantor has furnished Beneficiary with an endorsement to its title
policy showing no additional exceptions; and (5) Grantor has deposited its funds
in the Escrow Fund as provided in this Section and has submitted such other
documents and information as may be reasonably requested by Beneficiary to
determine that the work to be paid for has been performed in accordance with the
plans and specifications reasonably approved by Beneficiary. If any requisition
for payment of work performed is for an amount which would result in the
remaining balance of the Escrow Fund to be insufficient to complete the
remainder of the restoration, Grantor shall advance the requisite amount in cash
to the Escrow Fund immediately upon written request from the disbursement agent
or Beneficiary. Any failure by Grantor to satisfy any of the conditions to the
disbursement of Proceeds set forth in this Section upon demand by Beneficiary
shall constitute a Performance Default, as hereinafter defined.
(B) Any Condemnation Proceeds and any interest thereon remaining in
the Escrow Fund after payment of the costs to complete the restoration of the
Property pursuant to the approved plans and specifications and the costs of the
escrow agent and other costs described in Section 1.05(A) shall be paid first,
to Grantor to the extent of any funds of Grantor's contributed to the
restoration pursuant to Section 1.05(A) (so long as there is no Event of Default
or an event which with notice, the passage of time, or both, could become an
Event of Default); thereafter any remaining Condemnation Proceeds shall be
returned to Grantor (i) if in Beneficiary's sole discretion (reasonably
exercised) the restoration of the Property has been completed in a satisfactory
manner and with satisfactory results and (ii) so long as there is no Event of
Default or an event which with notice, the passage of time, or both, could
become an Event of Default. If the conditions of Section 1.05(B)(i) are not
satisfied, then any remaining Condemnation Proceeds shall be applied to the
partial payment or prepayment of the Note without payment of any Prepayment
Premium; provided, however, that any such partial prepayment shall not entitle
Grantor to prepay the portion of the Note remaining unpaid after application of
the Proceeds. Prepayment of the balance shall continue to be subject to the
terms and conditions of the Note, including the No-Prepayment Period and the
Prepayment Premium described therein. If an Event of Default exists, the use of
the Condemnation Proceeds shall be governed by Article III below. If, however,
an event exists which with notice, the passage of time, or both, could become an
Event of Default, the remaining balance in the Escrow Fund shall be held by the
escrow agent pending cure of the event prior to the expiration of any applicable
cure or grace period.
(C) Any Insurance Proceeds and any interest thereon remaining in the
Escrow Fund after payment of the costs to complete the restoration of the
Property pursuant to the approved plans and specifications and the costs of the
escrow agent and other costs described in Section 1.05(A) shall be paid first,
to Grantor to the extent of any funds of Grantor's contributed to the
11
restoration pursuant to Section 1.05)(A) (so long as there is no Event of
Default or an event which with notice, the passage of time, or both, could
become an Event of Default); thereafter any remaining Insurance Proceeds shall
be returned to Grantor (i) if in Beneficiary's sole discretion (reasonably
exercised) the restoration of the Property has been completed in a satisfactory
manner and with satisfactory results and (ii) so long as there is no Event of
Default or an event which with notice, the passage of time, or both, could
become an Event of Default. If the conditions of Section 1.05(C)(i) are not
satisfied, then any remaining Insurance Proceeds shall be applied to the partial
payment or prepayment of the Note without payment of any Prepayment Premium;
provided, however, that any such partial prepayment shall not entitle Grantor to
prepay the portion of the Note remaining unpaid after application of the
Proceeds. Prepayment of the balance shall continue to be subject to the terms
and conditions of the Note, including the No-Prepayment Period and the
Prepayment Premium described therein. If an Event of Default exists, the use of
the Insurance Proceeds shall be governed by Article III below. If, however, an
event exists which with notice, the passage of time, or both, could become an
Event of Default, the remaining balance in the Escrow Fund shall be held by the
escrow agent pending cure of the event prior to the expiration of any applicable
cure or grace period.
1.06. TAXES, LIENS AND OTHER ITEMS.
(A) Grantor shall pay or cause to be paid any and all taxes, bonds,
assessments, fees, liens, charges, fines, impositions and any accrued interest
or penalty thereon, and any and all other items which are attributable to or
affect the Property (collectively, "Impositions") by making payment prior to
delinquency directly to the payee thereof and promptly furnish copies of paid
receipts for these to Beneficiary. Grantor shall promptly discharge or bond any
lien or encumbrance on the Property whether or not said lien or encumbrance has
or may attain priority over this Deed of Trust. This Deed of Trust shall be the
sole encumbrance on the Property and, if with the consent of Beneficiary it is
not the sole encumbrance, then it shall be prior to any and all other liens or
encumbrances on the Property. Grantor may in good faith and with due diligence
protest the payment of any Imposition which it believes unwarranted or excessive
and may defer payment of such Imposition pending conclusion of such contest if
legally permitted to do so, provided that the priority of this Deed of Trust and
Beneficiary's security is not materially and adversely affected and that Grantor
shall have furnished Beneficiary or the taxing authority such security as may be
required.
(B) As further security for the payment of the Note and the payment of
real estate taxes, regular or special assessments and insurance premiums,
Grantor shall be required to deposit one-twelfth (1/12) of the annual amounts of
such items as estimated by Beneficiary, with each monthly payment on the Note,
so that Beneficiary will hold a sufficient amount to pay all such charges not
less than thirty (30) days prior to the date on which such items become due and
payable. Beneficiary shall be furnished evidence to allow it to estimate such
amounts, including paid receipts or annual insurance premium statements,
assessment notices and tax receipts. All funds so deposited shall, until applied
to the payment of the aforesaid items, as hereinafter provided, be held by
Beneficiary without interest (except to the extent required under applicable
law) and may be commingled with other funds of Beneficiary. All funds so
deposited shall be
12
applied to the payment of the aforesaid items only upon the satisfaction of the
following conditions: (1) no Event of Default or event, which with notice or the
passage of time or both could become an Event of Default, shall have occurred;
(2) Beneficiary shall have sufficient funds to pay the full amounts of such
items (which funds may include amounts paid solely for such purpose by Grantor
in addition to the escrowed funds); and (3) Grantor shall have furnished
Beneficiary with prior written notification that such items are due and with the
bills and invoices therefor in sufficient time to pay the same before any
penalty or interest attaches and before policies of insurance lapse, as the case
may be, and shall have deposited any additional funds as Beneficiary may
determine as necessary to pay such items.
(C) Beneficiary expressly disclaims any obligation to pay the
aforesaid items unless and until Grantor complies with all of the provisions set
forth in subsections 1.06(A) and (B). Grantor hereby pledges and grants a
security interest in any and all monies now or hereafter deposited pursuant to
subsection 1.06(B) as additional security for the Note and Related Agreements.
If any Event of Default shall have occurred, or if the Note shall be accelerated
as herein provided, all funds so deposited may, at Beneficiary's option, be
applied as determined solely by Beneficiary or to cure said Event of Default or
as provided in this Section 1.06. In no event shall Grantor claim any credit
against the principal and interest due hereunder for any payment or deposit for
any of the aforesaid items.
1.07. ASSIGNMENT OF LEASES, CONTRACTS, RENTS AND PROFITS.
(A) Grantor hereby absolutely, presently and unconditionally grants,
assigns, transfers, conveys and sets over to Beneficiary, subject to all of the
terms, covenants and conditions set forth herein, all of Grantor's right, title
and interest in and to the following whether arising under the Leases (as
defined herein), by statute, at law, in equity, or in any other way;
(1) All of the leases of the Property which are in effect on
the date hereof and all leases entered into or in effect from time to
time after the date hereof, including, without limitation, all
amendments, extensions, replacements, modifications and renewals thereof
and all subleases, concession agreements, any ground leases or ground
subleases and all other agreements affecting the same (the "Leases") and
all guaranties thereunder;
(2) All of the rents, income, profits, revenue, security
deposits, judgments, Condemnation Proceeds, Insurance Proceeds, unearned
insurance premiums, all termination and/or cancellation payments received
by Grantor in connection with any Lease, proceeds from the surrender,
sale or other disposition of any Lease, any other fees or sums payable to
Grantor or any other person as landlord and any award or payment in
connection with any enforcement action of any Lease, including, without
limitation, any award to Grantor made hereafter in any court involving
any of the tenants under the Leases in any bankruptcy, insolvency, or
reorganization proceeding in any state or federal court, and
13
Grantor's right to appear in any action and/or to collect any such award
or payment, and all payments by any tenant in lieu of rent (collectively,
"Rents and Profits"); and
(3) All contracts, agreements, management, operating and
maintenance agreements, warranties, licenses, permits, guaranties and
sales contracts relating to the Property and the Collateral entered into
by, or inuring to the benefit of, Grantor (the "Contracts").
(B) Notwithstanding the provisions of subsection 1.07(A), so long as
no Event of Default has occurred and is continuing hereunder, and, subject to
subsection 1.07(F) and Article III, Grantor shall have a license to manage the
Property; to collect, receive and use all Rents and Profits in accordance with
the terms of the Leases; to let the Property subject to the terms hereof and to
take all actions which a reasonable and prudent landlord would take in enforcing
the provisions of the Leases and Contracts; provided, however, that all amounts
so collected shall be applied toward operating expenses, real estate taxes and
insurance relating to the Property, capital repair items necessary to the
operation of the Property on a current basis, and the payment of sums due and
owing under the Note and this Deed of Trust prior to any other expenditure or
distribution by Grantor. From and after the occurrence of an Event of Default
(whether or not Beneficiary shall have exercised Beneficiary's option to declare
the Note immediately due and payable), such license shall be automatically
revoked without any action required by Beneficiary. Any amounts received by
Grantor or its agents in the performance of any acts prohibited by the terms of
this Deed of Trust, including but not limited to any amounts received in
connection with any cancellation, modification or amendment of any of the Leases
prohibited by the terms of this Deed of Trust and any amounts received by
Grantor as rents, income, issues or profits from the Property from and after the
occurrence of an Event of Default under this Deed of Trust, the Note, or any of
the other Related Agreements, shall be held by Grantor as trustee for
Beneficiary and all such amounts shall be accounted for to Beneficiary and shall
not be commingled with other funds of the Grantor. Any person acquiring or
receiving all or any portion of such trust funds shall acquire or receive the
same in trust for Beneficiary as if such person had actual or constructive
notice that such funds were impressed with a trust in accordance herewith.
(C) Upon the occurrence of an Event of Default, Beneficiary shall have
the right but not the obligation to perform as landlord under the Leases and as
a party under the Contracts. The assignment of Rents and Profits set forth
herein constitutes an irrevocable direction and authorization to all tenants
under the Leases to pay all Rents and Profits to Beneficiary upon demand and
without further consent or other action by Grantor. Grantor irrevocably appoints
Beneficiary its true and lawful attorney, at the option of Beneficiary at any
time after the occurrence of an Event of Default, to demand, receive and
enforce payment, to give receipts, releases and satisfactions, and to xxx,
either in the name of Grantor or in the name of Beneficiary, for all such Rents
and Profits and apply the same to the indebtedness secured by this Deed of
Trust.
14
(D) Neither the foregoing assignment of Rents and Profits, Leases and
Contracts to Beneficiary nor the exercise by Beneficiary of any of its rights or
remedies under Article III shall be deemed to make Beneficiary a
"mortgagee-in-possession" or otherwise liable in any manner with respect to the
Property, unless Beneficiary, in person or by agent, assumes actual possession
thereof. Nor shall appointment of a receiver for the Property by any court at
the request of Beneficiary or by agreement with Grantor, or the entering into
possession of the Property by such receiver, be deemed to make Beneficiary a
"mortgagee-in-possession" or otherwise liable in any manner with respect to the
Property, Collateral or any of the Rents and Profits.
(E) In the event Beneficiary collects and receives any Rents and
Profits under this Section 1.07 pursuant to any Monetary or Performance Default
as defined in Section 2.01 hereof, such collection or receipt shall in no way
constitute a curing of the Monetary or Performance Default.
(F) Grantor shall not, without the prior written consent of
Beneficiary, (1) enter into any lease, extend or renew any Lease (other than
extensions or renewals in accordance with the terms of a lease approved by
Beneficiary), or consent to or permit the assignment or subletting of any Leases
(other than assignments or subleases in accordance with the terms of a lease
approved by Beneficiary), or amend or terminate any Lease; (2) alter, modify,
change or terminate the terms of any guaranties of any Leases; (3) create or
permit any lien or encumbrance which, upon foreclosure, would be superior to any
such Leases or in any other manner impair Beneficiary's rights and interest with
respect to the Rents and Profits; (4) pledge, transfer, mortgage or otherwise
encumber or assign the Leases, the Contracts or the Rents and Profits; or (5)
collect rents more than 30 days prior to their due date. Notwithstanding the
foregoing, so long as no Event of Default has occurred and is continuing
hereunder, Grantor may enter into Leases, extend or renew Leases, and permit the
assignment or sublease of Leases which demise 30,000 rentable square feet or
less for a term of five years or less ("Non-material Leases"), provided they are
on rental rates, including rental concessions, at least equal to that charged
for comparable properties within the Property's submarket area, have been
negotiated at arm's length, and do not contain material modifications to the
form of lease previously approved by Beneficiary. Grantor may also amend
Non-material Leases without Beneficiary's prior written consent if, in Grantor's
prudent business judgment, such amendments are necessary and do not impair the
value of the Property. Beneficiary will not unreasonably withhold or delay its
consent to any item submitted to it for approval pursuant to subsections
1.07(F)(1) or (2) above. Any lease submitted for Beneficiary's consent shall, at
Beneficiary's option, be accompanied by a Subordination, Nondisturbance and
Attornment Agreement in Beneficiary's then current form or another form
reasonably acceptable to Beneficiary.
(G) Grantor shall promptly give notice to Beneficiary of any default
under any of the Leases meeting the criteria of a lease for which Beneficiary's
consent would have been required pursuant to Section 1.07(F) regardless of
whether such Leases were executed before or after the date of this Deed of
Trust, together with a complete copy of any notices delivered to or by the
tenant as a result of such default. Beneficiary shall have the right, but not
the obligation, to cure
15
any default of Grantor under any of the Leases and all amounts disbursed in
connection with said cure shall be deemed to be indebtedness secured hereby.
(H) Beneficiary shall have the right to approve any lease forms used
by Grantor for lease of space in the Property.
(I) Grantor hereby represents, warrants and agrees that:
(1) Grantor has the right, power and capacity to make this assignment
and that no person, firm or corporation or other entity other than Grantor has
or will have any right, title or interest in or to the Leases or the Rents and
Profits.
(2) Grantor shall, at its sole cost and expense, perform and discharge
all of the obligations and undertakings of the landlord under the Leases.
Grantor shall enforce the performance of each obligation of the tenants under
the Leases and will appear in and prosecute or defend any action connected with
the Leases or the obligations of the tenants thereunder.
(J) Beneficiary shall not be obligated to perform or discharge, nor
does it hereby undertake to perform or discharge, any obligation, duty or
liability under the Leases or under or by reason of this assignment. Grantor
shall and does hereby agree to indemnify Beneficiary for and to defend and hold
Beneficiary harmless from any and all liability, loss or damage which
Beneficiary may or might incur under the Leases or under or by reason of this
assignment, and from any and all claims whatsoever which may be asserted against
Beneficiary by reason of any alleged obligations or undertakings on
Beneficiary's part to perform or discharge any of the terms, covenants or
agreements contained in the Leases; provided, however, that the foregoing
indemnity shall not apply to the extent any of the foregoing arises wholly or in
substantial part from the gross negligence or willful misconduct of Beneficiary.
Should Beneficiary incur any liability, loss or damage under the Leases or under
or by reason of this assignment, or in the defense of any of such claims or
demands, the amount thereof, including costs, expenses and attorneys' and
paralegals' fees at all trial and appellate levels and whether suit be brought
or not, shall be secured by this Deed of Trust; and Grantor shall reimburse
Beneficiary therefor immediately upon demand, and upon failure of Grantor to do
so, Beneficiary may declare all sums so secured to be immediately due and
payable.
(K) Beneficiary may take or release other security, may release any
party primarily or secondarily liable for any indebtedness secured hereby, may
grant extensions, renewals or indulgences with respect to such indebtedness, and
may apply any other security therefor held by it to the satisfaction of such
indebtedness, without prejudice to any of its rights hereunder.
(L) Nothing herein contained and no act done or omitted by Beneficiary
pursuant to the powers and rights granted it herein shall be deemed to be a
waiver by Beneficiary of its other rights and remedies under the Note, this Deed
of Trust and the Related Agreements, and this assignment is made and accepted
without prejudice to any of the other rights and remedies possessed by
Beneficiary under the terms thereof. The right of Beneficiary to collect said
16
indebtedness and to enforce any other security therefor held by it may be
exercised by Beneficiary either prior to, simultaneously with, or subsequent to
any action taken by it hereunder. It is the intent of both Grantor and
Beneficiary that this assignment be supplementary to, and not in substitution or
derogation of, any other provision contained in this Deed of Trust giving
Beneficiary any interest in or rights with respect to the Leases or Rents and
Profits.
(M) Neither this assignment nor pursuit of any remedy hereunder by
Beneficiary shall cause or constitute a merger of the interests of the tenant
and Grantor under any of the Leases such that any of the Leases hereby assigned
are no longer valid and binding legal obligations of the parties executing the
same.
(N) Grantor agrees, from time to time, to execute and deliver, upon
demand, all assignments and any and all other writings as Beneficiary may
reasonably deem necessary or desirable to carry out the purpose and intent
hereof, or to enable Beneficiary to enforce any right or rights hereunder.
1.08. DUE ON SALE OR ENCUMBRANCE. Neither Grantor nor its sole member
shall, without the prior written consent of Beneficiary: (i) create, effect,
consent to, suffer to exist, assume, incur, permit (voluntarily or
involuntarily, by operation of law or otherwise) any direct or indirect
conveyance, sale, assignment, transfer, grant, lien, pledge, mortgage, security
interest or other encumbrance or disposition (each of the foregoing defined as
"Transfer") of the Property or an interest therein; (ii) be divested of its
title to the Property or any interest therein; (iii) enter into a contract to
sell or grant any option to purchase that results in a transfer of possession or
equitable title to the Property or any portion thereof prior to the payment of
the Note in accordance with its terms; (iv) enter into any lease giving the
tenant any option to purchase the Property or any portion thereof; (v) permit or
suffer any Transfer of any direct or indirect ownership interest in the Grantor
or any indemnitor or guarantor under this Deed of Trust or any Related
Agreement; (vi) permit or suffer any Transfer of any ownership interest in any
direct or indirect owner of a legal or beneficial interest in the Grantor
(including, without limitation its partners, members, trustees, beneficiaries or
shareholders); (vii) permit or suffer the merger, dissolution, liquidation, or
consolidation of the Grantor or any of the direct or indirect owners of Grantor
or the conversion of one type of legal entity into another type of legal entity.
Except as expressly consented to in writing by Beneficiary, Grantor shall not
incur any additional indebtedness (secured or unsecured, direct or contingent)
other than unsecured debt or trade payables incurred in the ordinary course of
business in connection with the operation of the Property. Upon the occurrence
of any of the prohibited actions specified herein, then Beneficiary shall have
the right, at its option, to declare the indebtedness secured by this Deed of
Trust immediately due and payable, irrespective of the maturity date specified
in the Note.
17
1.09. PRESERVATION AND MAINTENANCE OF PROPERTY. Grantor shall hire
competent and responsible property managers who shall be reasonably acceptable
to Beneficiary. Grantor, at its sole cost and expense, shall keep the Property
and every part thereof in good condition and repair, in accordance with sound
and prudent property management practices, and shall promptly and faithfully
comply with and obey all laws, ordinances, rules, regulations, requirements and
orders of every duly constituted governmental authority or agent having
jurisdiction with respect to the Property. All repairs, replacements and
renewals shall be at least equal in quality to the original Improvements.
Grantor shall not permit or commit any waste, impairment, or deterioration of
the Property, nor commit, suffer or permit any act upon or use of the Property
in violation of law or applicable order of any governmental authority, whether
now existing or hereafter enacted, or in violation of any covenants, conditions
or restrictions affecting the Property or bring or keep any article in the
Property or cause or permit any condition to exist thereon which would be
prohibited by or invalidate the insurance coverage required to be maintained
hereunder. Grantor shall promptly bond or discharge any mechanics' liens against
the Property.
1.10. USE OF PROPERTY. Except as may have been previously agreed in
writing by Beneficiary, Grantor shall continue to operate the Property for the
purposes for which it was used on the date hereof and for no other purpose.
Grantor shall not make or suffer any improper or offensive use of the Property
or any part thereof and will not use or permit to be used any part of the
Property for any dangerous, noxious, offensive or unlawful trade or business or
for any purpose which will reduce the value of the Property in any respect or
will cause the Property or any part thereof or interest therein to be subject to
forfeiture. Grantor at its expense will promptly comply with all rights of way
or use, privileges, franchises, servitudes, licenses, easements, tenements,
hereditaments and appurtenances forming a part of the Property and all
instruments relating or evidencing the same, in each case, to the extent
compliance therewith is required of Grantor under the terms thereof. Grantor
will not take any action which results in a forfeiture or termination of the
rights afforded to Grantor under any such instruments and will not, without the
prior written consent of Beneficiary, amend in any material respect any of such
instruments. Grantor shall at all times comply with all laws affecting the
Property and comply with any instruments of record at the time in force
affecting the Property or any part thereof and shall procure, maintain and
comply with all permits, licenses, and other authorizations required for any use
of the Property or any part thereof then being made, and for the proper
erection, installation, operation and maintenance of the Improvements or any
part thereof. Grantor shall not initiate, join in, acquiesce in, or consent to
any change in any private restrictive covenant, zoning law or other public or
private restriction, limiting or defining the uses which may be made of the
Property or any part thereof. In furtherance of the foregoing sentence, Grantor
will not, by act or omission: (i) impair the integrity of the Property as a
single zoning lot separate and apart from all other premises; or (ii) permit or
suffer to permit the Property to be used by the public or any party in such
manner as might make possible a claim of adverse usage or possession or any
implied dedication or easement. If under applicable zoning provisions the use of
all or any portion of the Property is or shall become a nonconforming use,
Grantor will not cause or permit such nonconforming use to be discontinued or
abandoned, if such discontinuance or abandonment would prevent the same or
similar nonconforming use in the future, without the
18
express written consent of Beneficiary (except that a nonconforming use that
results from a tenant's use may be discontinued without Beneficiary's consent if
such tenant's lease terminates or expires by its terms).
Grantor shall not conduct or permit or allow to be conducted on the
Property any dry cleaning plant or facility or similar operation, provided that
Grantor may conduct or permit or allow to be conducted on the Property a dry
cleaning drop-off establishment, so long as no dry cleaning is performed
therein.
1.11. ALTERATIONS AND ADDITIONS. Grantor shall not cause, suffer or
permit:
(A) Any material alterations of the Property except (1) as required by
any law, statute, ordinance, order, rule, regulation, decree or other
requirement of the United States, the applicable state or county in which the
Property is located or any political subdivision of any of the foregoing, or any
agency, department, commission, board, court, bureau or instrumentality of any
of them ("Governmental Authority") or by any condition of any approval, consent,
registration, franchise, permit, license, variance, certificate of occupancy or
other authorization with regard to zoning, landmark, ecological, environmental,
air quality, subdivision, planning, building or land use required by any
Governmental Authority for the construction, lawful occupancy and operation of
the Property and the actual and contemplated uses thereof, or (2) as permitted
or required to be made by the terms of any Leases approved by Beneficiary (with
respect to work in any space demised thereunder);
(B) Any demolition or removal of any portion of the Property;
(C) Any change which would increase the risk of fire or other hazard;
(D) Any zoning, reclassification with respect to the Property; or
(E) Any unlawful use of, or nuisance to exist upon, the Property.
As used herein, the term "material alteration" shall mean any alteration,
improvement or replacement (i) the cost of which (including any related
alteration, improvement or replacement) shall exceed two percent of the
principal amount of the indebtedness secured by this Deed of Trust (excluding
tenant improvement work pursuant to Leases), or (ii) which materially and
adversely affects the mechanical, electrical, heating, ventilating,
air-conditioning or other building or operating systems of any of the
Improvements, or materially and adversely affects the cost of operation or
maintenance of any such building or operating systems, affects the structure or
structural soundness of any of the improvements of the Property, or the exterior
or appearance of the Property, or otherwise has a material adverse effect on the
Property including the use and/or value thereof.
1.12. OFFSET CERTIFICATES. Grantor, within five days upon request in
person or within ten days upon request by mail, shall furnish a written
statement duly acknowledged and notarized, of all amounts due on any
indebtedness secured hereby or secured by any of the Related
19
Agreements, whether for principal or interest on the Note or otherwise, and
stating whether any offsets or defenses exist against the indebtedness secured
hereby and covering such other matters with respect to any such indebtedness as
Beneficiary may reasonably require.
1.13. COSTS AND EXPENSES. Grantor shall pay all costs, fees and expenses
of Trustee and Beneficiary, their agents and counsel, in connection with the
performance of their obligations, duties, rights, options and permitted actions
hereunder. Grantor will pay or reimburse Beneficiary upon demand for all
reasonable attorney's and paralegals' fees, costs and expenses, including those
in connection with appellate proceedings, incurred by Beneficiary in any
proceedings involving the estate of a decedent or an insolvent, or in any
action, legal proceeding or dispute of any kind in which Beneficiary is a
plaintiff or defendant, affecting the indebtedness secured hereby or the
Property or Collateral, this Deed of Trust or the interest created herein, any
condemnation action involving the Property or any action to protect the security
hereof; and any such amounts paid by Beneficiary shall be secured by this Deed
of Trust. If Grantor shall default in the payment of any tax, lien, assessment
or charge levied or assessed against the Property; in the payment of any utility
charge, whether public or private; in the payment of any insurance premium; in
the procurement of insurance coverage and the delivery of the insurance policies
required hereunder; in the performance of any covenant, term or condition of any
leases affecting all or any part of the Property; or in the performance or
observance of any covenant, condition or term of this Deed of Trust; then
Beneficiary, at its option, may perform or observe the same, and all payments
made or costs incurred by Beneficiary in connection therewith, shall be secured
hereby and shall be, without demand, immediately repaid by Grantor to
Beneficiary with interest thereon at the Default Rate as described in the Note.
Beneficiary shall be the sole judge of the legality, validity and priority of
any such tax, lien, assessment, charge, claim, premium and obligation, of the
necessity for any such actions and of the amount necessary to be paid in
satisfaction thereof. Beneficiary is hereby empowered to enter and to authorize
others to enter upon the Property or any part thereof for the purpose of
performing or observing any such defaulted covenant, condition or term, without
thereby becoming liable to Grantor or any other person in possession holding
under Grantor. All rights of Beneficiary as set forth herein are rights to be
exercised at the sole option and discretion of Beneficiary and Beneficiary shall
have no duty to Grantor or any other person or entity to perform any acts
authorized by this Section or to incur any expense, make any appearance or take
any other action.
1.14. PROTECTION OF SECURITY; COSTS AND EXPENSES.
(A) In addition to any other rights or remedies of Beneficiary
hereunder, under any of the Related Agreements, or in law or in equity, upon the
occurrence and during the continuance of an Event of Default (or prior thereto
after notice to Grantor, when possible, if Grantor is not paying or performing
the act itself and Beneficiary determines in its sole good faith judgment that
the same is appropriate to preserve the Property or the lien of this Deed of
Trust or any other collateral securing the indebtedness evidenced by the Note,
either before or after acceleration of the indebtedness) Beneficiary may, but
shall not be required to, make any payment or perform any act required to be
performed by Grantor hereunder or under any of the Related Agreements in any
form and manner deemed expedient to Beneficiary, including, without limitation,
if
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applicable: (1) paying any Impositions which remain unpaid; (2) procuring the
release, discharge, compromise or settlement of any lien filed or otherwise
asserted against the Property which has not been discharged by Grantor in
accordance with the provisions of this Deed of Trust or any of the Related
Agreements, and (3) obtaining insurance policies where insurance coverage was
required to be obtained hereunder and the required evidence that Grantor had
obtained the same has not been delivered to Beneficiary as required hereunder.
Nothing herein shall be construed to require Beneficiary to advance or expend
monies for any purpose mentioned herein, or for any other purpose.
(B) Grantor and its property manager, if applicable, shall appear in
and defend any action or proceeding purporting to affect the security of this
Deed of Trust or any additional or other security for the obligations secured
hereby, or the rights or powers of the Beneficiary or Trustee, and shall pay all
costs and expenses actually incurred, including, without limitation, cost of
evidence of title and actual attorneys' and paralegals' fees, in any such action
or proceeding in which Beneficiary or Trustee may appear, and in any suit
brought by Beneficiary to foreclose this Deed of Trust or to enforce or
establish any other rights or remedies of Beneficiary hereunder or under any
other security for the obligations secured hereby. If Grantor fails to perform
any of the covenants or agreements contained in this Deed of Trust, or if any
action or proceeding is commenced which affects Beneficiary's interest in the
Property or any part thereof, including, eminent domain, code enforcement, or
proceedings of any nature whatsoever under any federal or state law, whether now
existing or hereafter enacted or amended, relating to bankruptcy, insolvency,
arrangement, reorganization or other form of debtor relief, or to a decedent,
then Beneficiary may, but without obligation to do so and without notice to or
demand upon Grantor, perform such covenant or agreement and compromise any
encumbrance, charge or lien which in the judgment of Beneficiary appears to be
prior or superior hereto. Grantor shall further pay all expenses of Beneficiary
actually incurred (including reasonable and actual fees and disbursements of
counsel) incident to the protection or enforcement of the rights of Beneficiary
hereunder, and enforcement or collection of payment of the Note or any Future
Advance whether by judicial or nonjudicial proceedings, or in connection with
any bankruptcy, insolvency, arrangement, reorganization or other debtor relief
proceeding of Grantor, or otherwise.
(C) Grantor shall pay to Beneficiary, immediately upon written notice
from Beneficiary: (i) all recordation, transfer, stamp, documentary or other
fees or taxes levied on Beneficiary (exclusive of Beneficiary's income taxes) by
reason of the making or recording of the Note, this Deed of Trust or any Related
Agreement, and (ii) all intangible property taxes levied upon any holder of the
Note or Beneficiary under this Deed of Trust or secured party under the Related
Agreements.
Any amounts disbursed by Beneficiary pursuant to this Section or Section
1.13, including, without limitation, reasonable attorneys' and paralegals' fees,
whether or not the indebtedness as a result thereof shall exceed the face amount
of the Note, shall be additional indebtedness of Grantor secured by this Deed of
Trust and each of the Related Agreements as of the date of disbursement shall
become immediately due and payable on demand and shall bear
21
interest at the Default Rate set forth in the Note, from demand until paid. All
such amounts shall be payable by Grantor immediately upon demand. Nothing
contained in this section shall be construed to require Beneficiary to incur any
expense, make any appearance, or take any other action.
1.15. GRANTOR'S COVENANTS RESPECTING COLLATERAL.
(A) This instrument also creates a security interest in the
Collateral, the Contracts and in any sums held by Beneficiary, its servicing
agent or any escrow agent appointed under the terms of this Deed of Trust, which
security interest Grantor hereby grants in favor of Beneficiary under the
Washington Uniform Commercial Code, and Beneficiary shall also have all the
rights and remedies of a secured party under the Washington Uniform Commercial
Code, and without limitation upon or in derogation of the rights and remedies
created and accorded to Beneficiary by this Deed of Trust pursuant to the common
law or any other laws of the State of Washington or any other jurisdiction, it
being understood that the rights and remedies of Beneficiary under the
Washington Uniform Commercial Code shall be cumulative and in addition to all
other rights and remedies of Beneficiary arising under the Deed of Trust, the
Note, the Related Agreements, the common law or any other laws of the State of
Washington or any other jurisdiction. The security interest granted by this Deed
of Trust is for the purpose of securing all obligations of Grantor as set forth
in this Deed of Trust, the Note and the Related Agreements. Grantor acknowledges
that this Deed of Trust shall constitute a Security Agreement as that term is
used under the laws of the State of Washington in favor of Beneficiary. To the
extent a security interest cannot be granted or perfected under the applicable
Uniform Commercial Code provisions in any personal property in which Grantor has
any right, title or interest, Grantor hereby pledges to Beneficiary all of its
right, title and interest in all such personal property including, but not
limited to, deposit accounts, escrowed funds, cash and cash receipts, as the
same shall relate to the Property or the Collateral or the conduct of business
on the Property, now existing, hereafter acquired, wherever located and however
held. Any person holding property in which Grantor has any interest shall be
deemed to be holding such property in trust for Beneficiary.
(B) Grantor shall execute and deliver financing and continuation
statements covering the Collateral from time to time and in such form as
Beneficiary may require to perfect and continue the perfection of Beneficiary's
security interest with respect to such property, and Grantor shall pay all
reasonable costs and expenses of any record searches for financing statements
Beneficiary may require. Grantor hereby authorizes and empowers Beneficiary to
file (and hereby irrevocably appoints Beneficiary its agent and
attorney-in-fact, which shall be coupled with an interest, to execute and file,
on Grantor's behalf) at any time and from time to time any initial financing
statements, amendments thereto and continuation statements with or without
signature of Grantor as authorized by applicable law, as applicable to the
Collateral. For purposes of such filings, Grantor agrees to furnish any
information requested by Beneficiary promptly upon request by Beneficiary
describing the Collateral. Grantor hereby ratifies and approves all filings of
financing statements, amendments and continuations applicable to the Collateral
made or filed by Beneficiary prior to the date of this Deed of Trust.
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(C) Without the prior written consent of Beneficiary, Grantor shall
not create or suffer to be created any other security interest in or lien or
encumbrance on the Collateral, including replacements and additions thereto.
(D) Without the prior written consent of Beneficiary or except in the
ordinary course of business, Grantor shall not sell, transfer or encumber any of
the Collateral, or remove any of the Collateral from the Property unless Grantor
shall promptly substitute and replace the property removed with similar property
of at least equivalent value on which Beneficiary shall have a continuing
security interest ranking at least equal in priority to Beneficiary's security
interest in the property removed.
(E) Grantor shall (1) upon reasonable notice (unless an emergency or
Event of Default exists) permit Beneficiary and its representatives to enter
upon the Property to inspect the Collateral and Grantor's books and records
relating to the Collateral and make extracts therefrom and to arrange for
verification of the amount of Collateral, under procedures acceptable to
Beneficiary, directly with Grantor's debtors or otherwise at Grantor's expense;
(2) promptly notify Beneficiary of any attachment or other legal process levied
against any of the Collateral and any information received by Grantor relative
to the Collateral, Grantor's debtors or other persons obligated in connection
therewith, which may in any way affect the value of the Collateral or the rights
and remedies of Beneficiary in respect thereto; (3) reimburse Beneficiary upon
demand for any and all costs actually incurred, including, without limitation,
reasonable and actual attorneys', paralegals' and accountants' fees, and other
expenses incurred in collecting any sums payable by Grantor under any obligation
secured hereby, or in the checking, handling and collection of the Collateral
and the preparation and enforcement of any agreement relating thereto; (4)
notify Beneficiary of each location at which the Collateral is or will be kept,
other than for temporary processing, storage or similar purposes, and of any
removal thereof to a new location, including, without limitation, each office of
Grantor at which records relating to the Collateral are kept; (5) provide,
maintain and deliver to Beneficiary originals or certified copies of the
policies of insurance and certificates of insurance insuring the Collateral
against loss or damage by such risks and in such amounts, form and by such
companies as Beneficiary may require and with loss payable to Beneficiary, and
in the event Beneficiary takes possession of the Collateral, the insurance
policy or policies and any unearned or returned premium thereon shall at the
option of Beneficiary become the sole property of Beneficiary; and (6) do all
acts necessary to maintain, preserve and protect all Collateral, keep all
Collateral in good condition and repair and prevent any waste or unusual or
unreasonable depreciation thereof.
(F) Until Beneficiary exercises its right to collect proceeds of the
Collateral pursuant hereto, Grantor will collect with diligence any and all
proceeds of the Collateral. If an Event of Default exists, any proceeds received
by Grantor shall be held in trust for Beneficiary, and Grantor shall keep all
such collections separate and apart from all other funds and property so as to
be capable of identification as the property of Beneficiary and shall deliver to
Beneficiary such collections at such time as Beneficiary may request in the
identical form received, properly endorsed or assigned when required to enable
Beneficiary to complete collection thereof.
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(G) Beneficiary shall have all of the rights and remedies granted to a
secured party under the Uniform Commercial Code of the state in which the
Collateral is located, as well as all other rights and remedies available at law
or in equity. During the continuance of any Event of Default hereunder or under
the Note, Beneficiary shall have the right to take possession of all or any part
of the Collateral, to receive directly or through its agent(s) collections of
proceeds of the Collateral (including notification of the persons obligated to
make payments to Grantor in respect of the Collateral), to release persons
liable on the Collateral and compromise disputes in connection therewith, to
exercise all rights, powers and remedies which Grantor would have, but for the
security agreement contained herein, to all of the Collateral and proceeds
thereof, and to do all other acts and things and execute all documents in the
name of Grantor or otherwise, deemed by Beneficiary as necessary, proper and
convenient in connection with the preservation, perfection or enforcement of its
rights hereunder; and
(H) After any Event of Default hereunder or under the Note, Grantor
shall, at the request of Beneficiary, assemble and deliver the Collateral and
books and records pertaining to the Property at a place designated by
Beneficiary, and Beneficiary may, with reasonable notice to Grantor (unless an
emergency exists), enter onto the Property and take possession of the
Collateral. It is agreed that public or private sales, for cash or on credit to
a wholesaler or retailer or investor, or user of collateral of the types subject
to the security agreement, or public auction, are all commercially reasonable
since differences in the sales prices generally realized in the different kinds
of sales are ordinarily offset by the differences in the costs and credit risks
of such sales. The proceeds of any sale of the Collateral shall be applied first
to the expenses of Beneficiary actually incurred in retaking, holding, preparing
for sale, or selling the Collateral or similar matters, including reasonable and
actual attorneys' and paralegals' fees, and then, as Beneficiary shall solely
determine.
(I) Upon the request of Beneficiary, Grantor will cooperate with
Beneficiary in obtaining control with respect to those items of Collateral
consisting of deposit accounts, investment property, letter-of-credit rights or
any other Collateral as to which "control" is required under the applicable
Uniform Commercial Code for perfection of a security interest.
1.16. COVENANTS REGARDING FINANCIAL STATEMENTS.
(A) Grantor shall keep true books of record and account in which full,
true and correct entries in accordance with sound accounting practice and
principles applied on a consistent basis from year to year shall be made of all
dealings or transactions with respect to the Property.
(B) (1) Grantor shall deliver to Beneficiary:
(a) Within one hundred twenty (120) days after the last day of each
fiscal year of Grantor and Grantor's sole member during the term of the Note,
unaudited financial reports prepared on a cash basis, including income
statements and cash flow statements covering the operation of the Property and
unaudited annual financial reports prepared on a cash basis, including balance
sheets, income statements and cash flow statements covering the financial
24
condition of Grantor and Grantor's sole member for the previous fiscal year, all
certified to Beneficiary to be complete, correct and accurate by the individual,
managing general partner, manager or chief financial officer of the party whom
the report concerns; and
(b) If available, within thirty (30) days after receipt by Grantor,
original annual audit reports of an independent certified public accountant
prepared in accordance with generally accepted accounting principles containing
an unqualified opinion, including balance sheets, income statements and cash
flow statements covering the operation of the Property and the financial
condition of Grantor and Grantor's sole member for the previous fiscal year.
(2) At the request of Beneficiary from time to time (but no more often
than once in each fiscal quarter of Grantor during the term of the Note),
Grantor shall also deliver to Beneficiary unaudited financial reports prepared
on a cash basis, including income statements and cash flow statements covering
the operation of the Property and unaudited financial reports prepared on a cash
basis, including balance sheets, income statements and cash flow statements
covering the financial condition of Grantor and Grantor's sole member for the
previous fiscal quarter, a portfolio analysis report covering the operation of
all properties of which Grantor or Grantor's sole member is the owner (direct or
indirect) or a general partner of the owner (direct or indirect), setting out a
cash flow statement (including debt service payments) for each such property,
and a current rent roll of the Property, all certified to Beneficiary to be
complete, correct and accurate by the individual, managing general partner,
manager or chief financial officer of the party whom the report concerns.
(3) All reports covering the financial condition of Grantor or
Grantor's sole member shall include, without limitation, balance sheets and
statements of income and of partner's equity, if applicable, setting forth in
each case in comparative form the figures for the previous fiscal quarter or
year, as the case may be. All interim quarterly reports shall also include a
breakdown of all categories of revenues and expenses, and any supporting
schedules and data requested by Beneficiary. Each set of annual or quarterly
financial reports or quarterly rent rolls delivered to Beneficiary pursuant to
this Section shall also be accompanied by a certificate of the chief financial
officer, the managing general partner or the manager of the party whom the
report concerns, stating whether any condition or event exists or has existed
during the period covered by the annual or quarterly reports which then
constituted or now constitutes an Event of Default under the Note or this Deed
of Trust, or which if continued or not cured would, after passage of time,
constitute an Event of Default, and if any such condition or event then existed
or now exists, specifying its nature and period of existence and what Grantor
did or proposes to do with respect to such condition or event.
(C) In the event such statements are not in a form reasonably
acceptable to Beneficiary or Grantor fails to furnish such statements and
reports, then Beneficiary shall have the immediate and absolute right to audit
the respective books and records of the Property and Grantor or Grantor's sole
member, as applicable, at the expense of Grantor.
25
(D) Notwithstanding the foregoing, Grantor shall not be required to
deliver financial reports covering the financial condition of Grantor if and so
long as (1) the Property is Grantor's only asset, and (2) Grantor delivers the
unaudited financial reports covering the operation of the Property when and as
described above.
1.17. ENVIRONMENTAL COVENANTS.
Grantor covenants:
(A) That no Hazardous Materials (as defined below) are currently on or
in the Property (except as expressly described in the Environmental Closure
Letter prepared by Xxxxx and Xxxxxxxx, dated April 19, 2004, the Phase I
Environmental Site Assessment of the Property prepared by Xxxxx and Xxxxxxxx,
dated June 11, 2004, the Phase II Environmental Site Assessment of the Property
prepared by Xxxxx and Xxxxxxxx, dated June 11, 2004 and the Peer Review prepared
by ATC Associates, Inc., dated June 16, 2004) or shall be installed, used,
generated, manufactured, treated, handled, refined, produced, processed, stored
or disposed of, in, on or under the Property other than Hazardous Materials in
quantities and of types reasonably and customarily associated with general
office use which have been and are stored, used and disposed of in compliance
with Hazardous Material Laws (as defined below) and the presence of which do not
require compliance with any reporting requirements under any Hazardous Material
Laws;
(B) That no activity shall be undertaken on the Property which would
cause:
(1) the Property to become a hazardous waste treatment, storage
or disposal facility under any Hazardous Material Law,
(2) a release or threatened release of Hazardous Material from
the Property in violation of any Hazardous Material Law, or
(3) the discharge of Hazardous Material into any watercourse,
body of surface or subsurface water or wetland, or the discharge into the
atmosphere of any Hazardous Material which would require a permit under
any Hazardous Material Law and for which no such permit has been issued;
(C) That no activity shall be undertaken or permitted to be
undertaken, by the Grantor on the Property which would result in a violation
under any Hazardous Material Law; and
(D) To obtain and deliver to Beneficiary, within a reasonable time
following completion of actions required by an appropriate governmental agency,
certifications of engineers or other professionals reasonably acceptable to
Beneficiary, in form and substance satisfactory to Beneficiary, certifying that
all necessary and required actions to clean up, remove, contain, prevent and
eliminate all releases or threats of release of Hazardous Materials on or about
the Property to the levels required by the appropriate governmental agencies
have been taken and, to the knowledge of such professional, the Property is then
in compliance with
26
applicable Hazardous Material Laws as then in effect and applicable to such
actions. For purposes of this Deed of Trust, "Hazardous Materials" means and
includes asbestos or any substance containing asbestos, polychlorinated
biphenyls, any explosives, radioactive materials, chemicals known or suspected
to cause cancer or reproductive toxicity, pollutants, effluents, contaminants,
emissions, infectious wastes, any petroleum or petroleum-derived waste or
product or related materials and any items defined as hazardous, special or
toxic materials, substances or waste under any Hazardous Material Law, or any
material which shall be removed from the Property pursuant to any administrative
order or enforcement proceeding or in order to place the Property in a condition
that is suitable for ordinary use. "Hazardous Material Laws" means all federal,
state and local laws (whether under common law, statute or otherwise),
ordinances, rules, regulations and guidance documents now in force, as amended
from time to time, in any way relating to or regulating human health or safety,
industrial hygiene or environmental conditions, protection of the environment,
pollution or contamination of the air, soil, surface water or groundwater, and
includes, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. Section 9601, et seq., the
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., the
Clean Water Act, 33 U.S.C. Section 1251 et seq., the Clean Air Act, as amended,
42 U.S.C. Section 7401 et seq., the Occupational Safety and Health Act, 29
U.S.C. Section 651 et seq., the Hazardous Materials Transportation Act, 49
U.S.C. Section 1801 et seq., the Federal Water Pollution Control Act, 33 U.S.C.
Section 1321 et seq., and the Toxic Substances Control Act, 15 U.S.C. Section
2601 et seq.
1.18. FURTHER ASSURANCES. Grantor, from time to time, will execute,
acknowledge, subscribe and deliver to or at the direction of Beneficiary such
documents and further assurance as Beneficiary may reasonably require for the
purpose of evidencing, perfecting or confirming the lien and security interest
created by this Deed of Trust or the security to be afforded by the Related
Agreements, or both. Without limiting the foregoing and notwithstanding anything
in this Deed of Trust or the Related Agreements to the contrary, Grantor will
defend, indemnify and hold Beneficiary harmless with respect to any suit or
proceeding in which the validity, enforceability or priority of any such lien or
security interest, or both, is endangered or contested, directly or indirectly.
If Grantor fails to undertake the defense of any such claim in a timely manner,
or, in Beneficiary's sole determination, fails to prosecute such defense with
due diligence, then Beneficiary is authorized to take, at the sole expense of
Grantor, all necessary and proper action in defense of any such claim,
including, without limitation, the retention of legal counsel, the prosecution
or defense of litigation and the compromise or discharge of claims, including
payment of all costs and reasonable attorneys' and paralegals' fees. All costs,
expenses and losses, if any, so incurred by Beneficiary, including all
attorneys' and paralegals' fees, regardless of whether suit is brought, for all
administrative, trial and appellate proceedings, if any, will constitute
advances by Beneficiary as provided in Section 1.14 hereinabove.
1.19. GRANTOR'S CONTINUED EXISTENCE. Grantor shall at all times during
the term of the Loan maintain its legal existence and qualification to do or
transact business in the state in which the Property or any of the Collateral is
located. Grantor's exact legal name, state of organization and chief executive
office are as set forth respectively in the initial paragraph of this Deed of
Trust. So long as any of the indebtedness secured hereby remains outstanding,
Grantor will
27
provide Beneficiary with thirty (30) days prior written notice of any change in
Grantor's name, organizational identification number, state of organization or,
if any individual, principal residence.
ARTICLE II
EVENTS OF DEFAULT
Each of the following shall constitute an event of default ("Event of
Default") hereunder:
2.01. MONETARY AND PERFORMANCE DEFAULTS.
(A) Failure to make any payment due under any one or more of Note A or
Note B or any note evidencing a Future Advance, other than the final payment and
Prepayment Premium, or to make any payment due under this Deed of Trust to
Beneficiary or any other party, including without limitation, payment of escrow
deposits, real estate taxes, insurance premiums and ground rents, if any, on or
before the fourth (4th) day after such payment is due; or
(B) Failure to make the final payment or the Prepayment Premium due
under any one or more of Note A or Note B or any note evidencing a Future
Advance when such payment is due whether at maturity, by reason of acceleration,
as part of a prepayment or otherwise (the defaults in (A) and (B) hereinafter
"Monetary Default"); or
(C) Breach or default in the performance of any of the covenants or
agreements of Grantor contained herein, in any one or more of Note A or Note B
or in any Related Agreement ("Performance Default"), if such Performance Default
shall continue for thirty (30) days or more after written notice to Grantor from
Beneficiary specifying the nature of the Performance Default; provided, however,
that if such Performance Default is of a nature that it cannot be cured within
the thirty (30) day period, then Grantor shall not be in default if it commences
good faith efforts to cure the Performance Default within the thirty (30) day
period, demonstrates continuous diligent efforts to cure the Performance Default
in a manner reasonably satisfactory to Beneficiary and, within a reasonable
period, not to exceed one hundred eighty (180) days after the date of the
original written notice of the Performance Default, completes the cure of such
Performance Default. Notwithstanding the foregoing, if the breach or default is
one which is defined as an Event of Default elsewhere in this Article II or in
the default definition of any Related Agreement, then Grantor shall not be
entitled to any notice or cure period upon the occurrence of such breach or
default except for such notice and cure periods, if any, as may be expressly
granted in such other defined Event of Default.
2.02. BANKRUPTCY, INSOLVENCY, DISSOLUTION.
(A) Any court of competent jurisdiction shall sign an order (1)
adjudicating Grantor, its sole member, or any Guarantor (which term when used in
this Deed of Trust shall mean any guarantor of payment of the indebtedness)
bankrupt or insolvent, (2) appointing a receiver, trustee or liquidator of the
Property or Collateral or of a substantial part of the property of
28
Grantor, its sole member, or any Guarantor, or (3) approving a petition for, or
effecting an arrangement in bankruptcy, or any other judicial modification or
alteration of the rights of Beneficiary or of other creditors of Grantor, its
sole member, or any Guarantor; or
(B) Grantor, its sole member, or any Guarantor shall (1) apply for or
consent to the appointment of a receiver, trustee or liquidator for it or for
any of its property, (2) as debtor, file a voluntary petition in bankruptcy, or
petition or answer seeking reorganization or an arrangement with creditors or to
take advantage of any bankruptcy, reorganization, insolvency, readjustment of
debt, dissolution or liquidation law or statute, or an answer admitting the
material allegations of a petition filed against it and any proceeding under
such law, (3) admit in writing an inability to pay its debts as they mature, or
(4) make a general assignment for the benefit of creditors; or
(C) An involuntary petition in bankruptcy is filed against Grantor,
its sole member, or any Guarantor and the same is not vacated or stayed within
90 days of the filing date.
2.03. MISREPRESENTATION. Grantor makes or furnishes a representation,
warranty, statement, certificate, schedule and/or report to Beneficiary in or
pursuant to this Deed of Trust or any of the Related Agreements which is false
or misleading in any material respect as of the date made or furnished, or
becomes false or breached in any material respect upon or after execution of
this Deed of Trust.
2.04. DEFAULT UNDER SUBORDINATE LOANS. An occurrence of a default under
any loan subordinate to this Deed of Trust which is not an independent default
under this Deed of Trust which results in the commencement of foreclosure
proceedings or the taking of any other remedial action under such subordinate
loan.
2.05. LIENS. Any federal, state or local tax lien or any claim of lien
for labor or materials or any other lien or encumbrance of any nature whatsoever
is recorded against Grantor or any of the Property or Collateral and is not
removed by payment or transferred to substitute security in the manner provided
by law, within thirty (30) days after it is recorded in accordance with
applicable law.
2.06. JUDGMENTS. (A) A final judgment, other than a final judgment
in connection with any condemnation, is entered against Grantor that (1)
materially and adversely affects the value, use or operation of the Property or
other Collateral, or (2) adversely affects, or reasonably may adversely affect,
the validity or enforceability of this Deed of Trust, any of the Related
Agreements or the Note or priority of the liens or security interests created by
this Deed of Trust or any of the Related Agreements; or (B) execution or other
final process issues thereon with respect to the Property or other Collateral;
and (C) Grantor does not discharge the same or provide for its discharge in
accordance with its terms, or procure a stay of execution thereon, in any event
within thirty (30) days from entry, or Grantor shall not, within such period or
such longer period during which execution on such judgment shall have been
stayed, appeal therefrom or from the order, decree or process upon or pursuant
to which such judgment shall have been
29
entered, and cause its execution to be stayed during such appeal, or if on
appeal such order, decree or process shall be affirmed and Grantor shall not
discharge such judgment or provide for its discharge in accordance with its
terms within sixty (60) days after the entry of such order or decree or
affirmance, or if any stay of execution on appeal is released or otherwise
discharged.
2.07. LEASES. Grantor's default in the performance of its obligations as
lessor under any Lease of 10,000 square feet or more, which default could
result, in Beneficiary's judgment, in the termination of said Lease.
2.08. GRANTOR'S CONTINUED EXISTENCE. Grantor ceases to exist or to be
qualified to do or transact business in the state in which the Property or any
of the Collateral is located or is dissolved or is a party to a merger,
consolidation or reorganization, or sells all or substantially all of its
assets.
2.09. BREACH OF DUE ON SALE OR ENCUMBRANCE PROVISION. Any occurrence of
a prohibited Transfer under Section 1.08 hereof.
2.10. DEFAULT UNDER RELATED AGREEMENTS. A "Default" or "Event of
Default" shall have occurred under or as defined in any of the Note, the
Assignment of Leases and Rents or any other Related Agreement.
ARTICLE III
REMEDIES
Upon the occurrence of any Event of Default, Beneficiary and Trustee
shall have the following rights and remedies set forth in Sections 3.01 through
3.08:
3.01. ACCELERATION. Notwithstanding the stated maturity date in the
Note, or any note evidencing any Future Advance, Beneficiary may without notice
or demand, declare the entire principal amount of the Note and/or any Future
Advances then outstanding and accrued and unpaid interest thereon, and all other
sums or payments required thereunder or under this Deed of Trust or the Related
Agreements including, but not limited to the Prepayment Premium described in the
Note, to be due and payable immediately.
3.02. ENTRY. Irrespective of whether Beneficiary exercises the option
provided in section 3.01 above, Beneficiary in person or by agent or by
court-appointed receiver (and Beneficiary shall have the right to the immediate
appointment of such a receiver without regard to the adequacy of the security
and Grantor hereby irrevocably consents to such appointment and waives notice of
any application therefor) may, at its option, without any action on its part
being required, without in any way waiving such Event of Default, with or
without the appointment of a receiver, or an application therefor:
(A) Take possession of the Property and conduct tests of, manage or
hire a manager to manage, lease and operate the Property or any part thereof, on
such terms and for such period of
30
time as Beneficiary may deem proper, with full power to make, from time to time,
all alterations, renovations, repairs or replacements thereto as may seem proper
to Beneficiary;
(B) With or without taking possession of the Property, collect and
receive all Rents and Profits, notify tenants under the Leases or any other
parties in possession of the Property to pay Rents and Profits directly to
Beneficiary, its agent or a court-appointed receiver and apply such Rents and
Profits to the payment of:
(1) all costs and expenses incident to taking and retaining
possession of the Property (including the cost of any receivership),
management and operation of the Property, keeping the Property properly
insured and all alterations, renovations, repairs and replacements to the
Property;
(2) all taxes, charges, claims, assessments, and any other
liens which may be prior in lien or payment to this Deed of Trust or the
Note, and premiums for insurance, with interest on all such items; and
(3) the indebtedness secured hereby together with all costs and
attorney's and paralegals' fees, in such order or priority as to any of
such items as Beneficiary in its sole discretion may determine, any
statute, law, custom or use to the contrary notwithstanding;
(C) Exclude Grantor, its agents and servants, wholly from the
Property;
(D) Have joint access with Grantor to the books, papers and accounts
of Grantor relating to the Property, at the expense of Grantor;
(E) Commence, appear in and/or defend any action or proceedings
purporting to affect the interests, rights, powers and/or duties of Beneficiary
hereunder, whether brought by or against Grantor or Beneficiary; and
(F) Pay, purchase, contest or compromise any claim, debt, lien, charge
or encumbrance which in the judgment of Beneficiary may affect or appear to
affect the interest of Beneficiary or the rights, powers and/or duties of
Beneficiary hereunder.
Trustee or Beneficiary, as a matter of right without notice to Grantor or
anyone claiming under it and without regard to the then value of the Property or
the interest of Grantor therein, shall have the right to apply to any court
having jurisdiction to appoint a receiver or receivers to take charge of the
Property or any portion thereof. Any such receiver or receivers shall have all
of the usual and customary powers and duties of receivers in like or similar
cases and all of the powers and duties of Trustee or Beneficiary in case of
entry as provided hereinabove, including without limitation, the right to
collect and receive Rents and Profits. All such Rents and Profits paid to
Beneficiary or collected by such receiver shall be applied as provided for in
subsection 3.02(B) above. Grantor for itself and any subsequent owner of the
Property hereby waives any
31
and all defenses to the application for such receiver and hereby irrevocably
consents to such appointment without notice of any application therefor.
The receipt by Beneficiary of any Rents and Profits pursuant to this Deed
of Trust after the institution of foreclosure or other proceedings under the
Deed of Trust shall not cure any such Event of Default or affect such
proceedings or any sale pursuant thereto. After deducting the expenses and
amounts set forth above in this section 3,02, as well as just and reasonable
compensation for all Beneficiary's employees and other agents (including,
without limitation, reasonable and actual attorneys' and paralegals' fees and
management and rental commissions) engaged and employed, the moneys remaining,
at the option of Beneficiary, may be applied to the indebtedness secured hereby.
Whenever all amounts due on the Note and under this Deed of Trust shall have
been paid and all Events of Default have been cured and any such cure has been
accepted by Beneficiary, Beneficiary shall surrender possession to Grantor. The
same right of entry, however, shall exist if any subsequent Event of Default
shall occur; provided, however, Beneficiary shall not be under any obligation to
make any of the payments or do any of the acts referred to in this section 3.02.
3.03. JUDICIAL ACTION. Beneficiary may bring an action in any court of
competent jurisdiction to foreclose this instrument or to enforce any of the
covenants and agreements hereof. The Property may be foreclosed in parts or as
an entirety.
3.04. POWER OF SALE. Beneficiary may elect to cause the Property or any
part thereof to be sold under the power of sale herein granted in any manner
permitted by applicable law. Should Beneficiary elect to sell the Property, or
any part thereof, which is real property as provided above, Beneficiary or
Trustee shall give such notice of default and election to sell as may then be
required by law. Thereafter, upon the expiration of such time and the giving of
such notice of sale as may then be required by law, and without the necessity of
any demand on Grantor, Trustee, at the time and place specified in the notice of
sale, shall sell the Property or any part thereof at public auction to the
highest bidder for cash in lawful money of the United States payable at time of
sale. Trustee may, and upon request of Beneficiary shall, from time to time,
postpone any sale hereunder by public announcement thereof at the time and place
noticed therefor or by giving notice of the time and place of the postponed sale
in the manner required by law. If the Property consists of several lots, parcels
or items of property, Beneficiary may designate the order in which such lots,
parcels or items shall be offered for sale or sold. Any person, including
Grantor, Trustee or Beneficiary, may purchase at any sale hereunder, and
Beneficiary shall have the right to purchase at any sale hereunder by crediting
upon the bid price the amount of all or any part of the indebtedness hereby
secured plus interest, late charges, prepayment fees, and reasonable attorneys'
fees and trustees' fees, as herein provided. Should Beneficiary desire that more
than one sale or other disposition of the Property be conducted, Beneficiary
may, at its option, cause the same to be conducted simultaneously, or
successively, on the same day, or at such different times and in such order as
Beneficiary may deem to be in its best interests, and no such sale shall
terminate or otherwise affect the lien of this Deed of Trust on any part of the
Property not sold until all indebtedness secured hereby has been fully paid. In
the event of default of any purchaser, Trustee shall have the right to resell
the Property as set
32
forth above. Upon any sale hereunder, Trustee shall execute and deliver to the
purchaser or purchasers a deed or deeds conveying the property so sold, but
without any covenant or warranty whatever, express or implied, whereupon such
purchaser or purchasers shall be let into immediate possession; and the recitals
of facts in any such deed or deeds such as default, the giving of notice of
default and notice of sale, and other facts affecting the regularity or validity
of such sale or disposition, shall be conclusive proof of the truth of such
facts and any such deed or deeds shall be conclusive against all persons as to
such facts recited therein.
3.05. DISCONTINUANCE OF SALE. Beneficiary, from time to time before any
Trustee's sale, public sale or deed in lieu of foreclosure, may discontinue any
such notice of breach or default and of election to cause the Property to be
sold by executing and delivering to Trustee a written notice of such
discontinuance, which notice, when recorded, shall also constitute a
cancellation of any prior declaration of default and demand for sale or such
documents as may be required by the laws of the state in which the Property is
located to effect such discontinuance. The exercise by Beneficiary of such right
of discontinuance shall not constitute a waiver of any breach or Event of
Default then existing or subsequently occurring, or impair the right of
Beneficiary to execute and deliver to Trustee, as above provided, other
declarations of default and demand for sale, and notices of breach or default,
and of election to cause the Property to be sold to satisfy the obligations
hereof, nor otherwise affect any provision, agreement, covenant or condition of
the Related Agreements, the Note or of this Deed of Trust or any of the rights,
obligations or remedies of the parties thereunder.
3.06. BENEFICIARY'S REMEDIES RESPECTING COLLATERAL. Beneficiary may
realize upon the Collateral, enforce and exercise all of Grantor's rights,
powers, privileges and remedies in respect of the Collateral, dispose of or
otherwise deal with the Collateral in such order as Beneficiary may in its
discretion determine, and exercise any and all other rights, powers, privileges
and remedies afforded to a secured party under the laws of the state in which
the Property is located as well as all other rights and remedies available at
law or in equity.
3.07. PROCEEDS OF SALES. The proceeds of any sale made under or by
virtue of this Article III, together with all other sums which then may be held
by Trustee or Beneficiary under this Deed of Trust, whether under the provisions
of this Article III or otherwise, shall be applied as follows:
(A) To the payment of the costs, fees and expenses of sale and of any
judicial proceedings (including reasonable attorneys' and paralegals' fees and
costs, whether incurred before, during or after such proceedings, in any
appellate proceedings, before during or after sale of the Property or the
Collateral, or otherwise incurred) wherein the same may be made, including the
cost of evidence of title in connection with the sale, compensation to Trustee
and Beneficiary, and to the payment of all expenses, liabilities and advances
made or incurred by Trustee or Beneficiary under this Deed of Trust, together
with interest on all advances made by Trustee or Beneficiary at the interest
rate applicable under the Note, but limited to any maximum rate permitted by law
to be charged by Beneficiary;
33
(B) To the payment of any and all sums expended by Beneficiary under
the terms hereof, not then repaid, with accrued interest at the Default Rate set
forth in the Note, and all other sums (except advances of principal and interest
thereon) required to be paid by Grantor pursuant to any provisions of this Deed
of Trust, or the Note, or any note evidencing any Future Advance, or any of the
Related Agreements, including, without limitation, all expenses, liabilities and
advances made or incurred by Beneficiary under this Deed of Trust or in
connection with the enforcement thereof, together with interest thereon as
herein provided; and
(C) To the payment of the entire amount then due, owing or unpaid for
principal and interest upon the Note, any notes evidencing any Future Advance,
and any other obligation secured hereby, with interest on the unpaid principal
at the rate set forth therein from the date of advancement thereof until the
same is paid in full; and then
(D) The remainder, if any, to the person or persons, including
Grantor, legally entitled thereto.
3.08. CONDEMNATION AND INSURANCE PROCEEDS. All Condemnation Proceeds,
Insurance Proceeds and any interest earned thereon shall be paid over either by
the condemning authority, insurance company or escrow agent to Beneficiary and
shall be applied first toward reimbursement of the costs and expenses of
Beneficiary (including reasonable attorneys' and paralegals' fees), if any, in
connection with the recovery of such Proceeds, and then shall be applied in the
sole and absolute discretion of Beneficiary and without regard to the adequacy
of its security under this Deed of Trust (A) to the payment or prepayment of all
or any portion of the Note including the Prepayment Premium described in the
Note; (B) to the reimbursement of expenses incurred by Beneficiary in connection
with the restoration of the Property or Collateral; or (C) to the performance of
any of the covenants contained in this Deed of Trust as Beneficiary may
determine. Any prepayment of the Note or portion thereof pursuant to
Beneficiary's election under this Section shall be subject to the Prepayment
Premium described in the Note. Upon any Event of Default by Grantor under this
Deed of Trust, all right, title and interest of Grantor in and to all any and
all insurance policies then in force, including any and all unearned premiums
and existing claims, will inure to Beneficiary, which, at its sole option, and
as attorney-in-fact for Grantor, may then make, settle and give binding
acquittances for claims under all such policies, and may assign and transfer
such policies or cancel or surrender them, applying any unearned premium in such
manner as Beneficiary may elect. The foregoing appointment of Beneficiary as
attorney-in-fact for Grantor is coupled with an interest, and is irrevocable.
3.09. WAIVER OF MARSHALLING, RIGHTS OF REDEMPTION, HOMESTEAD AND
VALUATION.
(A) Grantor, for itself and for all persons hereafter claiming through
or under it or who may at any time hereafter become holders of liens junior to
the lien of this Deed of Trust, hereby expressly waives and releases all rights
to direct the order in which any of the Property or Collateral shall be sold in
the event of any sale or sales pursuant hereto and to have any of the Property
and/or any other property now or hereafter constituting security for any of the
34
indebtedness secured hereby marshalled upon any foreclosure of this Deed of
Trust or of any other security for any of said indebtedness.
(B) To the fullest extent permitted by law, Grantor, for itself and
all who may at any time claim through or under it, hereby expressly waives,
releases and renounces all rights of redemption from any foreclosure sale, all
rights of homestead, exception, monitoring reinstatements, forbearance,
appraisement, valuation, stay and all rights under any other laws which may be
enacted extending the time for or otherwise affecting enforcement or collection
of the Note, the debt evidenced thereby, or this Deed of Trust.
3.10. REMEDIES CUMULATIVE. No remedy herein conferred upon or reserved
to Trustee or Beneficiary is intended to be exclusive of any other remedy herein
or by law or equity provided, but each shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing at
law or 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 right or power or shall be construed to be a waiver of any Event of Default
or any acquiescence therein. Every power and remedy given by this Deed of Trust
to Beneficiary may be exercised separately, successively or concurrently from
time to time as often as may be deemed expedient by Trustee or Beneficiary. If
there exists additional security for the performance of the obligations secured
hereby, Beneficiary, at its sole option, and without limiting or affecting any
of its rights or remedies hereunder, may exercise any of the rights and remedies
to which it may be entitled hereunder either concurrently with whatever rights
and remedies it may have in connection with such other security or in such order
as it may determine. Any application of any amounts or any portion thereof held
by Beneficiary at any time as additional security or otherwise, to any
indebtedness secured hereby shall not extend or postpone the due dates of any
payments due from Grantor to Beneficiary hereunder or under the Note, any Future
Advance, or under any of the Related Agreements, or change the amounts of any
such payments or otherwise be construed to cure or waive any default or notice
of default hereunder or invalidate any act done pursuant to any such default or
notice.
3.11. NONRECOURSE. Except as otherwise set forth in this Section, and
subject to Section 3.12 hereof, Beneficiary's recourse under this Deed of Trust,
the Note and the Related Agreements shall be limited to and satisfied from the
Property and the proceeds thereof, the rents and all other income arising
therefrom during and after the month in which an Event of Default has occurred,
the other assets of Grantor arising out of the Property which are given as
collateral for the Note, and any other collateral given in writing to
Beneficiary as security for repayment of the Note (all of the foregoing are
collectively referred to as the "Loan Collateral"). Notwithstanding the
preceding sentence:
(A) Beneficiary may, in accordance with the terms of this Deed of
Trust, the Note or any Related Agreement: (1) foreclose the lien of this Deed of
Trust; (2) take appropriate action to enforce this Deed of Trust, the Note and
the Related Agreements to realize upon and/or protect the Loan Collateral; (3)
name Grantor as a party defendant in any action brought under this Deed of
Trust, the Note or the Related Agreements so long as the exercise of any remedy
is limited to
35
the Loan Collateral; (4) pursue all of its rights and remedies against any
guarantor or surety or master tenant whether or not a partner, member or other
owner of Grantor; and (5) pursue all of its rights and remedies against Grantor
and the indemnitors under that certain Environmental Indemnity Agreement of even
date herewith and that certain Terrorism Insurance Indemnity Agreement of even
date herewith;
(B) Beneficiary may seek damages or other monetary relief, to the
extent of actual monetary loss, or any other remedy at law or in equity against
Grantor, and the indemnitors/guarantors, if any, under any nonrecourse exception
indemnity agreements ("Nonrecourse Indemnitors") by reason of or in connection
with: (1) the failure of Grantor to pay to Beneficiary, upon demand, all rents,
issues and profits of the Property to which Beneficiary is entitled pursuant to
this Deed of Trust, the Note or the Related Agreements following an Event of
Default; (2) any waste of the Property or any willful act or omission by Grantor
which damages or materially reduces the value of the Property; (3) the
distribution of rents, issues and profits from the Property prior to the payment
of operating expenses or the provision for reserves, if any, to be made pursuant
to this Deed of Trust, the Note or the Related Agreement prior to any other
expenditure or distribution by Grantor; (4) the failure to account for and to
turn over security deposits (and interest required by law or agreement to be
paid thereon) or prepaid rents following the occurrence of an Event of Default
under this Deed of Trust, the Note or any Related Agreements; (5) the failure to
timely pay all real estate taxes or any regular or special assessments affecting
the Property; (6) the failure to account for and to turn over real estate tax
accruals following the occurrence of an Event of Default under this Deed of
Trust, the Note or any Related Agreements; (7) the failure to maintain casualty
and liability insurance as required under the Note or the Related Agreements or
to apply insurance proceeds or condemnation awards relating to the Property or
other collateral in the manner required under applicable provisions of this Deed
of Trust, the Note or any Related Agreements; (8) any modification, termination
or cancellation of any lease of all or any portion of the Property without
Beneficiary's prior written consent, if and to the extent such consent is
required under the Note or the Related Agreements and if and to the extent such
modification, termination or cancellation has a material adverse affect on the
value of the Property; (9) a default by Grantor under any lease of all or any
portion of the Property; or (10) costs and expenses, including, without
limitation, attorneys' and paralegals' fees and transfer taxes, incurred by
Beneficiary in connection with the enforcement of this Deed of Trust, the Note
or the Related Agreements or in connection with a deed-in-lieu of foreclosure if
the Event of Default giving rise to the enforcement action is one described in
subsections (B) or (C) as an exception to the nonrecourse provisions, or if the
Grantor or any principal of Grantor objects to any actions taken by Beneficiary
to exercise its remedies under this Deed of Trust, the Note or the Related
Agreements; Grantor or principal of Grantor commences any lawsuit to enjoin or
delay a foreclosure of the Property by Beneficiary, or raises defenses or
counterclaims to a foreclosure action; Grantor applies for the appointment of a
receiver, trustee or liquidator for it or for any of its property, or, as a
debtor, files a voluntary petition in bankruptcy, or petition or answer seeking
reorganization or an arrangement with creditors or takes advantage of any
bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or
liquidation law or statute, or makes a general assignment for the benefit of
creditors; or in the event any bankruptcy or
36
reorganization proceedings (voluntary or involuntary), the Grantor or any
principal of Grantor opposes any motion by Beneficiary for relief from the
Automatic Stay; and
(C) Grantor, any general partners of Grantor and the Nonrecourse
Indemnitor(s), if any, shall become personally liable for payment of all the
indebtedness evidenced by the Note and performance of all other obligations of
Grantor under this Deed of Trust, the Note and Related Agreements upon the
occurrence of any: (i) fraud or willful misrepresentation of a material fact by
Grantor, any general partners of Grantor, or Nonrecourse Indemnitor(s), if any,
in connection with this Deed of Trust, the Note, the Related Agreements or any
request for any action or consent by Beneficiary; (ii) a Transfer of any
interest in Grantor or all or any portion of the Property or any interest
therein in violation of the terms of this Deed of Trust, the Note or the Related
Agreements; or (iii) the incurrence by Grantor of any indebtedness in violation
of the terms of this Deed of Trust, the Note or Related Agreements (whether
secured or unsecured, direct or contingent), other than unsecured debt or
routine trade payables incurred in the ordinary course of business in connection
with the operation of the Property.
In addition, Grantor, any general partners of Grantor and the Nonrecourse
Indemnitors, if any, shall be responsible for any costs and expenses incurred by
Beneficiary in connection with the collection of any amounts for which Grantor,
its general partners, if any, and the Nonrecourse Indemnitors, if any, are
personally liable under this Section 3.11, including attorneys' and paralegals'
fees and expenses, court costs, filing fees and all other costs and expenses
incurred in connection therewith,
3.12. EVASION OF PREPAYMENT PREMIUM. Grantor agrees that in the event
Beneficiary exercises its right to accelerate the maturity date of the Note
following an Event of Default, a tender of payment of an amount necessary to
satisfy the entire indebtedness evidenced by the Note, but without including the
Prepayment Premium described in the Note, made at any time prior to foreclosure
sale either by Grantor, its successors and assigns or by anyone on behalf of
Grantor, shall be deemed to constitute an evasion of the prepayment provisions
of the Note and such payment shall therefore be deemed to be a prepayment under
the Note, and to the extent permitted by law, shall include the Prepayment
Premium described in the Note.
ARTICLE IV
MISCELLANEOUS
4.01. SEVERABILITY. In the event any one or more of the provisions
contained in this Deed of Trust 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 of this Deed of Trust, but
this Deed of Trust shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein, but only to the extent
that it is invalid, illegal or unenforceable.
4.02. CERTAIN CHARGES AND BROKERAGE FEES.
37
(A) Grantor agrees to pay Beneficiary its standard charge (or if there
is no standard charge, then Grantor shall reimburse Beneficiary for its
reasonable expenses) for each written statement requested of Beneficiary as to
the obligations secured hereby, furnished at Grantor's request, Grantor further
agrees to pay the charges of Beneficiary for any other service rendered Grantor,
or on its behalf, connected with this Deed of Trust or the indebtedness secured
hereby, including, without limitation, the delivery to an escrow holder of a
request for full or partial release or satisfaction of this Deed of Trust,
transmittal to an escrow holder of moneys secured hereby, changing its records
pertaining to this Deed of Trust and indebtedness secured hereby to show a new
owner of the Property, and replacing an existing policy of insurance held
hereunder with another such policy.
(B) Grantor agrees to indemnify and hold Beneficiary harmless from any
responsibility and/or liability for the payment of any commission charge or
brokerage fees to anyone which may be payable in connection with the funding of
the loan evidenced by the Note and this Deed of Trust or refinancing of any
prior indebtedness, if applicable, based upon any action taken by Grantor. It is
understood that any such commission charge or brokerage fees shall be paid
directly by Grantor to the entitled parties.
4.03. NOTICES.
(A) All notices expressly provided hereunder to be given by
Beneficiary to Grantor and all notices, demands and other communications of any
kind or nature whatever which Grantor may be required or may desire to give to
or serve on Beneficiary shall be in writing and shall be (1) hand-delivered,
effective upon receipt, (2) sent by United States Express Mail or by private
overnight courier, effective upon receipt, or (3) served by certified mail, to
the appropriate address set forth below, or at such other place as Grantor,
Trustee or Beneficiary, as the case may be, may from time to time designate in
writing by ten (10) days prior written notice thereof. Any such notice or demand
served by certified mail, return receipt requested, shall be deposited in the
United States mail, with postage thereon fully prepaid and addressed to the
party so to be served at its address stated below or at such other address of
which said party shall have theretofore notified in writing, as provided above,
the party giving such notice. Service of any such notice or demand so made shall
be deemed effective on the day of actual delivery as shown by the addressee's
return receipt or the expiration of three (3) business days after the date of
mailing, whichever is the earlier in time. Any notice required to be given by
Beneficiary shall be equally effective if given by Beneficiary's agent, if any.
(B) Grantor hereby requests that any notice, demand, request or other
communication (including any notice of an Event of Default and notice of sale as
may be required by law) desired to be given or required pursuant to the terms
hereof be addressed to Grantor as follows:
Inland Western Lakewood, L.L.C.
0000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
38
With a copy to:
The Inland Real Estate Group, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
All notices and other communications to Beneficiary shall be addressed as
follows:
Allstate Life Insurance Company
Xxxxxxxx Xxxxx Xxxxx, Xxxxx X0X
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Commercial Mortgage Division
Servicing Manager
With a copy to:
Allstate Life Insurance Company
Investment Law Division
Xxxxxxxx Xxxxx Xxxxx, Xxxxx X0X
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
4.04. GRANTOR NOT RELEASED: CERTAIN TRUSTEE AND BENEFICIARY ACTS.
(A) Extension of the time for payment or modification of the terms of
payment of any sums secured by this Deed of Trust granted by Beneficiary to any
successor in interest of Grantor shall not operate to release, in any manner,
the liability of Grantor. Beneficiary shall not be required to: commence
proceedings against such successor or refuse to extend time for payment or
otherwise modify the terms of payment of the sums secured by this Deed of Trust,
by reason of any demand made by Grantor. Without affecting the liability of any
person, including Grantor, but subject to the terms and provisions of Section
3.11, for the payment of any indebtedness secured hereby, or the legal operation
and effect of this Deed of Trust on the remainder of the Property for the full
amount of any such indebtedness and liability unpaid, Beneficiary and Trustee
are empowered as follows: Beneficiary may from time to time and without notice
(1) release any person liable for the payment of any of the indebtedness; (2)
extend the time or otherwise alter the terms of payment of any of the
indebtedness; (3) accept additional real or personal property of any kind as
security therefor, whether evidenced by deeds of trust, mortgages, security
agreements or any other instruments of security; or (4) alter, substitute or
release any property securing the indebtedness.
(B) Trustee may or Beneficiary may at its sole option and without any
duty to do so, at any time, and from time to time, (1) consent to the making of
any map or plan of the Property or any part thereof; (2) join in granting any
easement or creating any restriction thereon; (3) join
39
in any subordination or other agreement affecting this Deed of Trust or the
legal operation and effect or charge hereof; or (4) release or reconvey, without
any warranty, all or part of the Property from the lien of this Deed of Trust.
4.05. INSPECTION. Upon reasonable prior notice and subject to the rights
of tenants under the Leases, Beneficiary may at any reasonable time make or
cause to be made entry upon and make inspections, reappraisals, surveys,
construction and environmental testing of the Property or any part thereof in
person or by agent, and if Beneficiary has a reasonable basis to believe that
Grantor is in breach of any covenant of this Deed of Trust in regard to the
Property, the cost of any such inspection shall be borne by the Grantor.
4.06. RELEASE OR RECONVEYANCE OR CANCELLATION. Upon the payment in full
of all sums secured by this Deed of Trust, Beneficiary shall request Trustee to
release this Deed of Trust or reconvey the Property and shall surrender this
Deed of Trust and all notes evidencing indebtedness secured by this Deed of
Trust to Trustee. Upon payment of its fees and any other sums owing to it under
this Deed of Trust, Trustee shall release this Deed of Trust or reconvey the
Property without warranty to the person or persons legally entitled thereto. The
duly recorded release or reconveyance of the Property shall constitute a
reassignment of the Leases by Beneficiary to Grantor. Such person or persons
shall pay all fees of Trustee and Beneficiary and costs of recordation, if any.
The recitals in such release or reconveyance of any matters or facts shall be
conclusive proof of the truthfulness thereof.
4.07. STATUTE OF LIMITATIONS. Grantor hereby expressly waives and
releases to the fullest extent permitted by law, the pleading of any statute of
limitations as a defense to any and all obligations secured by this Deed of
Trust.
4.08. INTERPRETATION. Wherever used in this Deed of Trust, unless the
context otherwise indicates a contrary intent, or unless otherwise specifically
provided herein, the word "Grantor" shall mean and include both Grantor and any
subsequent owner or owners of the Property, and the word "Beneficiary" shall
mean and include not only the original Beneficiary hereunder but also any future
owner and holder, including pledgees, of the Note or other obligations secured
hereby. In this Deed of Trust, the Note and the Related Agreements, whenever the
context so requires, the masculine gender includes the feminine and/or neuter,
and the neuter includes the feminine and/or masculine, and the singular number
includes the plural, In this Deed of Trust, the Note and the Related Agreements,
the use of the word "including" shall not be deemed to limit the generality of
the term or clause to which it has reference, whether or not non-limiting
language (such as "without limitation," or "but not limited to," or words of
similar import) is used with reference thereto.
4.09. CAPTIONS. The captions and headings of the Articles and Sections
of this Deed of Trust, the Note and the Related Agreements are for convenience
only and are not to be used to interpret, define or limit the provisions hereof.
40
4.10. CONSENT. The granting or withholding of consent by Beneficiary to
any transaction as required by the terms hereof shall not be deemed a waiver of
the right to require consent to future or successive transactions. Grantor
covenants and agrees to reimburse Beneficiary promptly on demand for all legal
and other expenses incurred by Beneficiary or its servicing agent in connection
with all requests by Grantor for consent or approval under this Deed of Trust.
4.11. DELEGATION TO SUBAGENTS. Wherever a power of attorney is conferred
upon Beneficiary hereunder or under the Related Agreements, it is understood and
agreed that such power is conferred with full power of substitution, and
Beneficiary may elect in its sole discretion to exercise such power itself or to
delegate such power, or any part thereof, to one or more subagents and such
power shall be deemed to be coupled with an interest and irrevocable so long as
this Deed of Trust has not been cancelled.
4.12. SUCCESSORS AND ASSIGNS. All of the grants, obligations, covenants,
agreements, terms, provisions and conditions herein shall run with the land and
shall apply to, bind and inure to the benefit of, the heirs, administrators,
executors, legal representatives, successors and assigns of Grantor (but this
shall not permit any assignment prohibited hereby) and the successors in trust
of Trustee and the endorsees, transferees, successors and assigns of
Beneficiary. In the event Grantor is composed of more than one party, the
obligations, covenants, agreements, and warranties contained herein and in the
Related Agreements as well as the obligations arising therefrom are and shall be
joint and several as to each such party.
4.13. GOVERNING LAW. THIS DEED OF TRUST IS INTENDED TO BE GOVERNED BY
AND CONSTRUED UNDER THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED.
4.14. SUBSTITUTION OF TRUSTEE. Beneficiary may remove Trustee at any
time or from time to time and appoint a successor trustee, and upon such
appointment, all powers, rights, duties and authority of Trustee, as aforesaid,
shall thereupon become vested in such successor. Such substitute trustee shall
be appointed by written instrument duly recorded in the county or counties where
the real property covered hereby is located, which appointment may be executed
by any authorized agent of Beneficiary or in any other manner permitted by
applicable law.
4.15. CHANGES IN TAXATION. If, after the date of this Deed of Trust, any
law is passed by the state in which the Property is located or by any other
governing entity, imposing upon Beneficiary any tax against the Property, or
changing in any way the laws for the taxation of mortgages or deeds of trust or
debts secured by mortgages or deeds of trust so that an additional or substitute
tax is imposed on Beneficiary or the holder of the Note, Grantor shall reimburse
Beneficiary for the amount of such taxes immediately upon receipt of written
notice from Beneficiary. Provided, however, that such requirement of payment
shall be ineffective if Grantor is permitted by law to pay the whole of such tax
in addition to all other payments required hereunder, without any penalty or
charge thereby accruing to Beneficiary and if Grantor in fact pays such tax
prior to the date upon which payment is required by such notice.
41
4.16. MAXIMUM INTEREST RATE. No provision of this Deed of Trust or of
the Note or of any note evidencing a Future Advance shall require the payment or
permit the collection of interest in excess of the maximum non-usurious rate
permitted by applicable law. In the event such interest does exceed the maximum
legal rate, it shall be canceled automatically to the extent that such interest
exceeds the maximum legal rate and if theretofore paid, credited on the
principal amount of the Note or, if the Note has been prepaid, then such excess
shall be rebated to Grantor. It is the intent of Grantor and Beneficiary that
the interest rate charged under the Note, this Deed of Trust, any note
representing any Future Advance and any of the Related Agreements shall comply
with all applicable law and not exceed the maximum rate allowed by law.
4.17. TIME OF ESSENCE. Time is of the essence of the obligations of
Grantor in this Deed of Trust and the Related Agreements and each and every
term, covenant and condition made herein by or applicable to Grantor.
4.18. REPRODUCTION OF DOCUMENTS. This Deed of Trust and all documents
relating thereto, specifically excluding the Note but including, without
limitation, consents, waivers and modifications which may hereafter be executed,
financial and operating statements, certificates and other information
previously or hereafter furnished to Beneficiary, may be reproduced by
Beneficiary by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process and Beneficiary may destroy any original
document ("Master") so reproduced. Grantor agrees and stipulates that any such
reproduction is an original and shall be admissible in evidence as the Master in
any judicial or administrative proceeding (whether or not the Master is in
existence and whether or not such reproduction was made or preserved by
Beneficiary in the regular course of business) and any enlargement, facsimile or
further reproduction of such a reproduction shall be no less admissible.
4.19. NO ORAL MODIFICATIONS. This Deed of Trust may not be amended or
modified orally, but only by an agreement in writing signed by the party against
whom enforcement of any amendment or modification is sought.
4.20. FURTHER ASSURANCES. Grantor, from time to time, will execute,
acknowledge, subscribe and deliver to or at the direction of Beneficiary such
documents and further assurances as Beneficiary may reasonably require for the
purpose of evidencing, perfecting or confirming the lien and security interest
created by this Deed of Trust or the security to be afforded by the Related
Agreements, or both. Without limiting the foregoing and notwithstanding anything
in this Deed of Trust or the Related Agreements to the contrary, Grantor will
defend, indemnify and hold Beneficiary harmless with respect to any suit or
proceeding in which the validity, enforceability or priority of any such lien or
security interest, or both, is endangered or contested, directly or indirectly.
If Grantor fails to undertake the defense of any such claim in a timely manner,
or, in Beneficiary's sole determination, fails to prosecute such defense with
due diligence, then Beneficiary is authorized to take, at the sole expense of
Grantor, all necessary and proper action in defense of any such claim,
including, without limitation, the retention of legal counsel, the prosecution
or defense of litigation and the compromise or discharge of claims,
42
including payment of all costs and reasonable attorneys' and paralegals' fees.
All costs, expenses and losses, if any, so incurred by Beneficiary, including
all reasonable attorneys' and paralegals' fees, regardless of whether suit is
brought, for all administrative, trial and appellate proceedings, if any, will
constitute advances by Beneficiary as provided herein.
4.21. TRUSTEE PROVISIONS. Trustee accepts this Trust when this Deed of
Trust, duly executed and acknowledged is made a public record as provided by
law. The Trust created hereby is irrevocable by Grantor. Trustee, upon
presentation to it of an affidavit signed by or on behalf of Beneficiary,
setting forth any facts showing a default by Grantor under any of the terms or
conditions of this Deed of Trust, is authorized to accept as true and conclusive
all facts and statements in such affidavit and to act hereunder in complete
reliance thereon. Trustee shall be under no obligation to notify any party
hereof of any action or proceeding of any kind in which Grantor, Beneficiary
and/or Trustee shall be a party, unless brought by Trustee, or of any pending
sale under any other deed of trust. The necessity of Trustee's making oath,
filing inventory or giving bond as security for the execution of this Deed of
Trust, as may now be or hereafter required by the laws of the state in which the
Property is located, is hereby expressly waived.
4.22. WAIVER OF JURY TRIAL. The parties acknowledge that disputes
arising out of the loan evidenced by this Deed of Trust are likely to be complex
and the parties desire to streamline and minimize the cost of dispute
resolution. Grantor therefore hereby KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
waives Grantor's right to a TRIAL BY JURY.
4.23. NONAGRICULTURAL USE. The Property is not used principally for
agricultural uses.
* * * * *
[Signature Page Follows]
43
IN WITNESS WHEREOF, the undersigned has executed and delivered this Deed
of Trust as of the day and year first hereinabove written.
GRANTOR AND "DEBTOR"
INLAND WESTERN LAKEWOOD, L.L.C.,
a Delaware limited liability company
By: INLAND WESTERN RETAIL REAL ESTATE
TRUST, INC., a Maryland corporation,
Its sole member
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Its: Asst Secretary
--------------------------------
44
STATE OF ILLINOIS )
) SS.
COUNTY OF DUPAGE )
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that Xxxxx X. Xxxxxx, the Asst. Secretary of
INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., a Maryland corporation, the sole
member of INLAND WESTERN LAKEWOOD, L.L.C., a Delaware limited liability company,
personally known to me to be the same person whose name is subscribed to the
foregoing instrument, appeared before me this day in person and acknowledged
that as such officer he/she signed and delivered the said instrument as his/her
free and voluntary act and deed and as the free and voluntary act and deed of
said entities, for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this 28th day of June, 2004.
(SEAL)
/s/ Xxxxxxxx X. Xxxxxxxx
---------------------------------
Notary Public
My commission expires:
--------------------------------
OFFICIAL SEAL
XXXXXXXX X. XXXXXXXX
NOTARY PUBLIC-STATE OF ILLINOIS
MY COMMISSION EXPIRES: 03-12-07
EXHIBIT A
(Property Description)
PARCEL A:
XXXX 0, 0, 0, 0, 00 XXX 00 XX AMENDED BINDING SITE PLAN OF VILLA PLAZA, 2ND
AMENDMENT AMENDING XXXX 0, 0, 0X, 0, 0, 0, 0X XXX 10, AS RECORDED MAY 21, 2004
UNDER RECORDING NO. 200405215003 RECORDS OF XXXXXX COUNTY AUDITOR;
SITUATE IN THE CITY OF LAKEWOOD, COUNTY OF XXXXXX, STATE OF WASHINGTON.
PARCEL B:
XXX 0 XX XXXXX 0 XX X & M ADDITION, AS PER PLAT RECORDED IN VOLUME 14 OF PLATS,
PAGE 69, RECORDS OF XXXXXX COUNTY AUDITOR;
AND
XXX 00 XX XXXXX 0 XX X & M ADDITION, AS PER PLAT RECORDED IN VOLUME 14 OF PLATS,
PAGE 69, RECORDS OF XXXXXX COUNTY AUDITOR; EXCEPT THAT PORTION CONVEYED TO THE
CITY OF LAKEWOOD BY DEED RECORDED FEBRUARY 27, 2004 UNDER RECORDING NO.
200402270636, RECORDS OF XXXXXX COUNTY AUDITOR;
SITUATE IN THE CITY OF LAKEWOOD, COUNTY OF XXXXXX, STATE OF WASHINGTON.
PARCEL C:
XXXX 0, 0, 0, 00 XXX 00 XX XXXXX 4 OF M & M ADDITION, AS PER PLAT RECORDED IN
VOLUME 14 OF PLATS, PAGE 69, RECORDS OF XXXXXX COUNTY AUDITOR; EXCEPT THOSE
PORTIONS OF SAID XXXX 0, 0 XXX 00 XXXXXXXX XX XXXXXX XXXXXX BY DEED RECORDED
JULY 10, 1978 UNDER RECORDING NO. 2835329; AND EXCEPT THOSE PORTIONS OF SAID
LOTS 4, 5 AND 29 CONVEYED TO THE CITY OF LAKEWOOD BY DEED RECORDED
FEBRUARY 27, 2004 UNDER RECORDING NO. 200402270636, RECORDS OF XXXXXX COUNTY
AUDITOR;
SITUATE IN THE CITY OF LAKEWOOD, COUNTY OF XXXXXX, STATE OF WASHINGTON.
PARCEL D:
EASEMENTS FOR INGRESS, EGRESS, PARKING, UTILITIES AND OTHER USES, FOR THE TERM
AND UPON THE TERMS, COVENANTS AND CONDITIONS AS SET FORTH
IN THAT CERTAIN OPERATION, RESTRICTION AND RECIPROCAL EASEMENT AGREEMENT
RECORDED MAY 10, 1988 UNDER XXXXXX COUNTY RECORDING NO. 8805100535 AND AS
AMENDED BY INSTRUMENTS RECORDED UNDER RECORDING NOS. 8907140366, 9106270353,
9902180168, 200106290843 AND 200110190304, IN, OVER AND UPON THOSE PORTIONS OF
XXXX 0 XXX 0 XX XXXXX XXXXX, X BINDING SITE PLAN RECORDED UNDER RECORDING NO.
8802120287, RECORDS OF XXXXXX COUNTY AUDITOR;
SITUATE IN THE CITY OF LAKEWOOD, COUNTY OF XXXXXX, STATE OF WASHINGTON.
PARCEL E:
EASEMENTS FOR INGRESS, EGRESS, PARKING, UTILITIES AND OTHER USES, FOR THE TERM
AND UPON THE TERMS, COVENANTS AND CONDITIONS AS SET FORTH IN THAT CERTAIN
RESTATED AND AMENDED CONSTRUCTION, OPERATION AND RECIPROCAL EASEMENT AGREEMENT
RECORDED JUNE 29, 2001 UNDER XXXXXX COUNTY RECORDING NO. 200106290842 AND AS
AMENDED BY INSTRUMENT RECORDED UNDER RECORDING NO. 200110190305, IN, OVER AND
UPON THOSE PORTIONS OF XXXX 0 XXX 0 XX XXXXX XXXXX, X BINDING SITE PLAN,
RECORDED UNDER RECORDING NO. 8802120287, RECORDS OF THE XXXXXX COUNTY AUDITOR;
SITUATE IN THE CITY OF LAKEWOOD, COUNTY OF XXXXXX, STATE OF WASHINGTON.
PARCEL F:
EASEMENTS FOR INGRESS, EGRESS AND UTILITIES AS SET FORTH IN THAT CERTAIN FIRST
AMENDED AND RESTATED DECLARATION RECORDED MAY 3, 1988 UNDER RECORDING NO.
8805030420;
SITUATE IN XXX XXXX XX XXXXXXXX, XXXXXX XX XXXXXX, XXXXX XX XXXXXXXXXX.
EXHIBIT B
(Fixture Filing)
Pursuant to the security agreement contained in this Deed of Trust
("Security Agreement") and the appropriate Uniform Commercial Code ("UCC")
sections in the State in which the Fixtures are located, as amended and
recodified from time to time, this Deed of Trust shall constitute a Fixture
Filing.
1. DESCRIPTION OF FIXTURES. "Fixtures" shall include all articles of
personal property now or hereafter attached to, placed upon for an indefinite
term or used in connection with said real property, appurtenances and
improvements together with all goods and other property which are or at any time
become so related to the Property that an interest in them arises under real
estate law.
2. DESCRIPTION OF COLLATERAL. The Collateral, as defined in the
Security Agreement, includes, without limitation, the following items and types
of Collateral as well as certain other items and types of Collateral:
All equipment, fixtures, goods, inventory and all present and future
accessions and products thereof and thereto as defined in the UCC, now or at any
time acquired, used, or to be used for or in connection with the construction,
use or enjoyment of the Property by Grantor, whether in the possession of
Grantor, warehousemen, bailees or any other person and whether located at the
Property or elsewhere, including without limitation:
(A) all building, maintenance or service equipment; building,
maintenance or raw materials or supplies; component parts or work in process;
appliances; furnishings; machinery; and tools; and
(B) all goods and property covered by any warehouse receipts, bills of
lading and other documents evidencing any goods or other tangible personal
property of any kind (including any Collateral) in which Grantor now or at any
time hereafter has any interest in connection with any or all of the Property or
Collateral; and
(C) any and all products of any accessions to any such Collateral
which may exist at any time.
Part of the above described goods are or are to become Fixtures on the
Property. As used in this Exhibit to qualify the scope of Beneficiary's security
interest in any of the Collateral, the phrase "in connection with any or all of
the Property or Collateral" shall be used in its broadest and most comprehensive
sense and shall include without limitation property used or acquired (or to be
used or acquired) in connection with the improvement, development, construction,
repair or remodeling of any or all of the Property, property arising from or in
connection with the operation, use, maintenance, occupancy, sale, lease or
disposition of any or all of the Property or Collateral, property used or
acquired (or to be used or acquired) in connection with Grantor's performance of
any of its obligations to Beneficiary, and property acquired with any loan
proceeds. If any property is used (or to be used) for multiple or different
purposes, and one such purpose relates to any aspect of the Property or
collateral, such property shall constitute Collateral hereunder, unless
Beneficiary shall release such property from this Fixture Filing and
Beneficiary's security interest in a duly executed written instrument.
3. RELATION OF FIXTURE FILING TO DEED OF TRUST. Some or all of the
Collateral described in Section 2 above may be or become Fixtures in which
Beneficiary has a security interest under the Security Agreement. However,
nothing herein shall be deemed to create any lien or interest in favor of
Beneficiary under this Deed of Trust in any such Collateral which is not a
fixture, and the purpose of this Exhibit B is to create a fixture filing under
the appropriate Uniform Commercial Code sections in the State in which the
Fixtures are located, as amended or recodified from time to time, the rights,
remedies and interests of Beneficiary under this Deed of Trust are independent
and cumulative, and there shall be no merger of any lien hereunder with any
security interest created by the Security Agreement. Beneficiary may elect to
exercise or enforce any of its rights, remedies, or interests under this Deed of
Trust as Beneficiary may from time to time deem appropriate.
4. NAME AND ADDRESS OF BENEFICIARY:
Allstate Life Insurance Company
Xxxxxxxx Xxxxx Xxxxx, Xxxxx X0X
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Commercial Mortgage Division
Servicing Manager
5. OTHER FIXTURE FINANCING AND REMOVAL OF FIXTURES. (A) Beneficiary
has not consented to any other security interest of any other person in any
Fixtures and has not disclaimed any interest in any Fixtures; and (B)
Beneficiary has not agreed or consented to the removal of any Fixtures from the
Property, and any such consent by Grantor shall not be binding on Beneficiary.
Beneficiary reserves the right to prohibit the removal of any Fixtures by any
person with the legal right to remove any Fixtures from the Property unless and
until such person makes arrangements with (and satisfactory to) Beneficiary for
the payment to Beneficiary of all costs of repairing any physical injury to the
Property which may be caused by the removal of such Fixtures. Any such payment
shall be made directly to Beneficiary at its request, and Beneficiary may hold
such payment as additional collateral under this Deed of Trust. Failure by
Grantor to cause the delivery to Beneficiary of any such payment shall
constitute both: (1) waste under (and breach of) this Deed of Trust; and (2)
conversion of Collateral under (and a breach of) the Security Agreement.
EXHIBIT C
(Permitted Exceptions)
