Exhibit 10.220
TITLE OF DOCUMENT: DEED OF TRUST, SECURITY AGREEMENT AND
ASSIGNMENT OF RENTS
DATE OF DOCUMENT: JULY 2, 2004
*GRANTOR(S): INLAND WESTERN KANSAS CITY, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY
*GRANTEE(S): PRINCIPAL LIFE INSURANCE COMPANY, AN IOWA
CORPORATION
GRANTEE(S) MAILING ADDRESS: C/O PRINCIPAL REAL ESTATE INVESTORS, LLC AT
000 XXXXX XXXXXX, XXX XXXXXX, XXXX 00000-0000
LEGAL DESCRIPTION: SEE EXHIBIT A ATTACHED HERETO
REFERENCE BOOK AND PAGE(S) NOT APPLICABLE
*FOR INDEXING PURPOSES ONLY
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DEED OF TRUST, SECURITY AGREEMENT
AND ASSIGNMENT OF RENTS
LOAN NO. 753948
THIS INSTRUMENT SECURES, AMONG OTHER THINGS, FUTURE ADVANCES AND FUTURE
OBLIGATIONS PURSUANT TO, AND IS TO BE GOVERNED BY THE PROVISIONS OF, SECTION
443.055 OF THE REVISED STATUTES OF MISSOURI. THE TOTAL PRINCIPAL AMOUNT OF THE
FUTURE ADVANCES AND FUTURE OBLIGATIONS THAT MAY BE SECURED HEREBY IS
$40,300,000.
A. THIS DEED OF TRUST (as the same may from time to time hereafter be
modified, supplemented or amended, this "DEED OF TRUST") is made as of July 2,
2004, by and between INLAND WESTERN KANSAS CITY, L.L.C., a Delaware limited
liability company, having its principal place of business and post office
address at 0000 Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000, as "BORROWER"
("Borrower" to be construed as "Borrowers" if the context so requires), XXXXX X.
XXXXXX, whose address is Xxxxx, Xxxx & Xxxxxxxx, X.X., 0000 Xxxxxx, Xxxxx 000,
Xxxxxx Xxxx, Xxxxxxxx 00000, as "TRUSTEE", and PRINCIPAL LIFE INSURANCE COMPANY,
an Iowa corporation, having a principal place of business and post office
address c/o Principal Real Estate Investors, LLC at 000 Xxxxx Xxxxxx, Xxx
Xxxxxx, Xxxx 00000-0000, as "LENDER".
WITNESSETH:
B. Borrower is justly indebted to Lender for money borrowed (the "LOAN") in
the original principal sum of Twenty Million One Hundred Fifty Thousand and
No/100 Dollars ($20,150,000.00) (the "LOAN AMOUNT") evidenced by Borrower's
secured promissory note of even date herewith, made payable and delivered to
Lender, (as may be modified, amended, supplemented, extended or consolidated in
writing and any note(s) issued in exchange therefor or replacement thereof) (the
"NOTE") in which Note Borrower promises to pay to Lender the Loan Amount,
together with all accrued and unpaid interest thereon, interest accrued at the
Default Rate (if any), Late Charges (if any), the Make Whole Premium (if any),
and all other obligations and liabilities due or to become due to Lender
pursuant to the Loan Documents and all other amounts, sums and expenses paid by
or payable to Lender pursuant to the Loan Documents and the Environmental
Indemnity (collectively the "INDEBTEDNESS") until the Indebtedness has been
paid, but in any event, the unpaid balance (if any) remaining due on the Note
shall be due and payable on August 1, 2009 or such earlier date resulting from
the acceleration of the Indebtedness by Lender (the "MATURITY DATE").
Capitalized terms used herein and not otherwise defined shall have those
meanings given to them in the other Loan Documents.
C. NOW, THEREFORE, to secure the payment of the Indebtedness in accordance
with the terms and conditions of the Loan Documents, and all extensions,
modifications, and renewals
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thereof and the performance of the covenants and agreements contained therein,
and also to secure the payment of any and all other Indebtedness, direct or
contingent, that may now or hereafter become owing from Borrower to Lender in
connection with the Loan Documents, and in consideration of the Loan Amount in
hand paid, receipt of which is hereby acknowledged, Borrower does by these
presents GRANT, BARGAIN AND SELL, CONVEY, CONFIRM AND WARRANT, IN TRUST WITH
POWER OF SALE unto Trustee, its successors and assigns forever, that certain
real estate and all of Borrower's estate, right, title and interest therein,
located in the county of Platte, state of Missouri, more particularly described
in EXHIBIT A attached hereto and made a part hereof (the "LAND"), which Land,
together with the following described property, rights and interests, is
collectively referred to herein as the "PREMISES".
D. Together with Borrower's interest as lessor in and to all Leases and all
Rents, which are pledged primarily and on a parity with the Land and not
secondarily.
E. Together with all and singular the tenements, hereditaments, easements,
appurtenances, passages, waters, water courses, riparian rights, sewer rights,
rights in trade names, licenses, permits and contracts and all other rights,
liberties and privileges of any kind or character in any way now or hereafter
appertaining to the Land, including but not limited to, homestead and any other
claim at law or in equity as well as any after-acquired title, franchise or
license and the reversion and reversions and remainder and remainders thereof.
F. Together with the right in the case of foreclosure hereunder of the
encumbered property for Lender to take and use the name by which the buildings
and all other improvements situated on the Premises are commonly known and the
right to manage and operate the said buildings under any such name and variants
thereof.
G. Together with all right, title and interest of Borrower in any and all
buildings and improvements of every kind and description now or hereafter
erected or placed on the said Land and all materials intended for construction,
reconstruction, alteration and repairs of such buildings and improvements now or
hereafter erected thereon, all of which materials shall be deemed to be included
within the Premises immediately upon the delivery thereof to the Premises, and
all fixtures now or hereafter owned by Borrower and attached to or contained in
and used in connection with the Premises including, but not limited to, all
machinery, motors, elevators, fittings, radiators, awnings, shades, screens, and
all plumbing, heating, lighting, ventilating, refrigerating, incinerating,
air-conditioning and sprinkler equipment and fixtures and appurtenances thereto;
and all items of furniture, furnishings, equipment and personal property owned
by Borrower used or useful in the operation of the Premises; and all renewals or
replacements of all of the aforesaid property owned by Borrower or articles in
substitution therefor, whether or not the same are or shall be attached to said
buildings or improvements in any manner (collectively, the "IMPROVEMENTS"); it
being mutually agreed, intended and declared that all the aforesaid property
owned by Borrower and placed by it on the Land or used in connection with the
operation or maintenance of the Premises shall, so far as permitted by law, be
deemed to form a part and parcel of the Land and for the purpose of this Deed of
Trust to be Land and covered by this Deed of Trust, and as to any of the
property aforesaid which does not
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form a part and parcel of the Land or does not constitute a "fixture" (as such
term is defined in the Uniform Commercial Code) this Deed of Trust is hereby
deemed to be, as well, a security agreement under the Uniform Commercial Code
for the purpose of creating hereby a security interest in such property which
Borrower hereby grants to Lender as secured party. Borrower authorizes Lender at
any time until the Indebtedness is paid in full, to prepare and file any and all
Uniform Commercial Code financing statements, amendments, assignments,
terminations and the like, necessary to create and/or maintain a prior security
interest in such property all without Borrower's execution of the same.
H. Together with all right, title and interest of Borrower, now or hereafter
acquired, in and to any and all strips and gores of land adjacent to and used in
connection with the Premises and all right, title and interest of Borrower, now
owned or hereafter acquired, in, to, over and under the ways, streets, sidewalks
and alleys adjoining the Premises.
I. Together with all funds now or hereafter held by Lender under any escrow
security agreement or under any of the terms hereof, including but not limited
to funds held under the provisions of paragraph 5 hereof, insurance proceeds
from all insurance policies required to be maintained by Borrower under the Loan
Documents (subject to the balance of the terms contained in this Deed of Trust)
and all awards, decrees, proceeds, settlements or claims for damage now or
hereafter made to or for the benefit of Borrower by reason of any damage to,
destruction of or taking of the Premises or any part thereof, whether the same
shall be made by reason of the exercise of the right of eminent domain or by
condemnation or otherwise (a "TAKING").
J. TO HAVE AND TO HOLD the same unto Trustee, Trustee's successors and
assigns, upon the trusts, covenants and agreements herein expressed.
K. Borrower represents that it is the absolute owner in fee simple of the
Premises described in Exhibit A, which Premises are free and clear of any liens
or encumbrances except as set out in Exhibit B attached hereto, and except for
taxes which are not yet due or delinquent. Borrower shall forever warrant and
defend the title to the Premises against all claims and demands of all persons
whomsoever and will on demand execute any additional instrument which may be
required to give Trustee a valid first lien on all of the Premises, subject to
the "PERMITTED ENCUMBRANCES" set forth in Exhibit X.
X. Borrower further represents that (i) the Premises is not subject to any
casualty damage; (ii) Borrower has not received any written notice of any
eminent domain or condemnation proceeding affecting the Premises; and (iii) to
the best of Borrower's knowledge following due and diligent inquiry, there are
no actions, suits or proceedings pending, completed or threatened against or
affecting Borrower or any person or entity owning an interest (directly or
indirectly) in Borrower ("INTEREST OWNER(S)") or any property of Borrower or any
Interest Owner in any court or before any arbitrator of any kind or before or by
any governmental authority (whether local, state, federal or foreign) that,
individually or in the aggregate, could reasonably be expected by Lender to be
material to the transaction contemplated hereby.
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M. Borrower further represents and warrants that as of the date hereof and
until the Indebtedness is paid in full: (i) Borrower is not and will not be an
"employee benefit plan" as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), which is subject to Title I
of ERISA; (ii) the assets of Borrower do not and will not constitute "plan
assets" of one or more such plans for purposes of Title I of ERISA; (iii)
Borrower is not and will not be a "governmental plan" within the meaning of
Section 3(32) of ERISA; (iv) transactions by or with Borrower are not and will
not be subject to state statutes applicable to Borrower regulating investments
of and fiduciary obligations with respect to governmental plans; (v) Borrower
has made and will continue to make all required contributions to all employee
benefit plans, if any, established for or on behalf of Borrower or to which
Borrower is required to contribute; (vi) Borrower has and will continue to
administer each such plan, if any, in accordance with its terms and the
applicable provisions of ERISA and any other federal or state law; and (vii)
Borrower has not and will not permit any liability under Sections 4201, 4243,
4062 or 4069 of Title IV of ERISA or taxes or penalties relating to any employee
benefit plan or multi-employer plan to become delinquent or assessed,
respectively, which would have a material adverse effect upon (i) the business
or the financial position or results of operation of Borrower, (ii) the ability
of Borrower to perform, or of Lender to enforce, any of the Loan Documents or
Environmental Indemnity or (iii) the value of the Premises.
BORROWER COVENANTS AND AGREES AS FOLLOWS:
1. Borrower shall
(a) pay each item of Indebtedness secured by this Deed of Trust
when due according to the terms of the Loan Documents;
(b) pay a Late Charge on any payment of principal, interest, Make
Whole Premium or Indebtedness which is not paid on or before
the due date thereof to cover the expense involved in
handling such late payment;
(c) pay on or before the due date thereof any indebtedness
permitted to be incurred by Borrower pursuant to the Loan
Documents and any other claims which could become a lien on
the Premises (unless otherwise specifically addressed in
paragraph 1(e) hereof), and upon request of Lender exhibit
satisfactory evidence of the discharge thereof;
(d) complete within a reasonable time, the construction of any
Improvements now or at any time in process of construction
upon the Land which are required to be performed by Borrower;
(e) manage, operate and maintain the Premises and keep the
Premises, including but not limited to, the Improvements, in
good condition and repair and free from mechanics' liens or
other liens or claims for liens,
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provided however, that Borrower may in good faith, with
reasonable diligence and upon written Notice to Lender within
twenty (20) days after Borrower has knowledge of such lien or
claim, contest the validity or amount of any such lien or
claim and defer payment and discharge thereof during the
pendency of such contest in the manner provided by law,
provided that (i) such contest may be made without the
payment thereof; (ii) such contest shall prevent the sale or
forfeiture of the Premises or any part thereof, or any
interest therein, to satisfy such lien or claim; (iii)
Borrower shall have obtained a bond over such lien or claim
from a bonding company acceptable to Lender which has the
effect of removing such lien or collection of the claim or
lien so contested; and (iv) Borrower shall pay all costs and
expenses incidental to such contest; and further provided,
that in the event of a final, non-appealable ruling or
adjudication adverse to Borrower and provided the court of
jurisdiction has not granted a stay of the enforcement of the
ruling or judgment, Borrower shall promptly pay such claim or
lien, shall indemnify and hold Lender and the Premises
harmless from any loss for damage arising from such contest
and shall take whatever action necessary to prevent sale,
forfeiture or any other loss or damage to the Premises or to
the Lender;
(f) comply, and cause each lessee or other user of the Premises
to comply, with all requirements of law and ordinance, and
all rules and regulations, now or hereafter enacted, by
authorities having jurisdiction of the Premises and the use
thereof, including but not limited to all covenants,
conditions and restrictions of record pertaining to the
Premises, the Improvements, and the use thereof
(collectively, "LEGAL REQUIREMENTS");
(g) subject to the provisions of paragraph 6 hereof, promptly
repair, restore or rebuild any Improvements now or hereafter
a part of the Premises which may become damaged or be
destroyed by any cause whatsoever, so that upon completion of
the repair, restoration and rebuilding of such Improvements,
there will be no liens of any nature arising out of the
construction and the Premises will be of substantially the
same character and quality as it was prior to the damage or
destruction;
(h) if other than a natural person, do all things necessary to
preserve and keep in full force and effect its existence,
franchises, rights and privileges under the laws of the state
of its formation and, if other than its state of formation,
the state where the Premises is located. Borrower shall
notify Lender at least thirty (30) days prior to (i) any
relocation of Borrower's principal place of business to a
different state or any change in Borrower's state of
formation, and/or (ii) if Borrower is an individual, any
relocation of Borrower's principal residence to a different
state;
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(i) do all things necessary to preserve and keep in full force
and effect Lender's title insurance coverage insuring the
lien of this Deed of Trust as a first and prior lien, subject
only to the Permitted Encumbrances stated in Exhibit B and
any other exceptions after the date of this Deed of Trust
approved in writing by Lender, including without limitation,
delivering to Lender not less than 30 days prior to the
effective date of any rate adjustment, modification or
extension of the Note or any other Loan Document, any new
policy or endorsement which may be reasonably required to
assure Lender of such continuing coverage;
(j) execute any and all documents which may be required to
perfect the security interest granted by this Deed of Trust;
(k) remain a Single-Purpose Entity;
(l) It is understood and agreed that this Deed of Trust secures
future advances and future obligations. The total amount of
obligations and advances secured hereby may decrease or
increase from time to time, but at no time shall the total
principal amount of obligations and advances secured hereby,
not including sums expended or incurred for the reasonable
protection of the security interest created in the Premises
or for other purposes specified in Section 443.055(3) of the
Missouri Revised Statutes, exceed the principal amount of
$40,300,000.00. This Deed of Trust is governed by Section
443.055 of the Missouri Revised Statutes; and
(m) timely perform all of its obligations under the Escrow
Agreement (as such term is defined in the Property Reserves
Agreement [herein so called] dated as of this date between
Borrower and Lender) and will timely exercise all of its
rights and remedies under the Escrow Agreement. Borrower
hereby authorizes Lender to exercise the rights and remedies
of Borrower under the Escrow Agreement if Borrower timely
fails to do so. All amounts to which Borrower is entitled
under the Escrow Agreement, shall be timely withdrawn and
deposited by Borrower immediately upon receipt thereof with
Lender to be held and disbursed in accordance with the terms
of the Property Reserves Agreement.
As used herein, the term "SINGLE PURPOSE ENTITY" means: a
corporation, limited or general partnership, limited liability
company, or business trust which, at all times until the
Indebtedness is paid in full (i) will be organized solely for the
purpose of owning the Premises, (ii) will not engage in any business
unrelated to the ownership of the Premises, (iii) will not have any
assets other than those related to the Premises, (iv) will not
engage in, seek or consent to any dissolution, winding up,
liquidation, consolidation or merger, and, except as otherwise
expressly permitted by the Loan Documents, will not engage in, seek
or consent to
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any asset sale, transfer of partnership, membership, shareholder,
beneficial interests, or amendment of its limited partnership
agreement, articles of incorporation, articles of organization,
certificate of formation, operating agreement, trust agreement, or
trust certificate (as applicable), (v) will not fail to correct any
known misunderstanding regarding the separate identity of such
Entity, (vi) without the unanimous consent of all of the partners,
directors, members, beneficial owners and trustees, as applicable,
will not with respect to itself or to any other Entity in which it
has a direct or indirect legal or beneficial ownership interest (a)
file a bankruptcy, insolvency or reorganization petition or
otherwise institute insolvency proceedings or otherwise seek any
relief under any laws relating to the relief from debts or the
protection of debtors generally; (b) seek or consent to the
appointment of a receiver, liquidator, assignee, trustee,
sequestrator, custodian or any similar official for such Entity or
all or any portion of such Entity's properties; (c) make any
assignment for the benefit of such Entity's creditors; or (d) take
any action that might cause such Entity to become insolvent, (vii)
will maintain its accounts, books and records separate from any
other person or Entity, (viii) will maintain its books, records,
resolutions and agreements as official records, (ix) has not
commingled and will not commingle its funds or assets with those of
any other person or Entity, (x) has held and will hold its assets in
its own name, (xi) will conduct its business in its name, (xii) will
maintain its financial statements, accounting records and other
Entity documents separate from any other person or Entity, (xiii)
will pay its own liabilities out of its own funds and assets, (xiv)
will observe all corporate, limited liability company and
partnership formalities, as applicable, (xv) has maintained and will
maintain an arms-length relationship with its Affiliates, (xvi) if
such Entity owns the Premises, will have no indebtedness other than
the Indebtedness and commercially reasonable unsecured trade
payables in the ordinary course of business relating to the
ownership and operation of the Premises which are paid within sixty
(60) days of the date incurred, (xvii) will not assume or guarantee
or become obligated for the debts of any other person or Entity or
hold out its credit as being available to satisfy the obligations of
any other person or Entity, except for the Indebtedness, (xviii)
will not acquire obligations or securities of its partners, members,
trustees, beneficial owners or shareholders, (xix) will allocate
fairly and reasonably shared expenses, including, without
limitation, shared office space and uses separate stationery,
invoices and checks, (xx) will not pledge its assets for the benefit
of any other person or Entity, (xxi) will hold itself out and
identify itself as a separate and distinct Entity under its own name
and not as a division or part of any other person or Entity, (xxii)
will not make loans to any person or Entity, (xxiii) will not
identify its partners, members, shareholders, trustees,
beneficiaries or any Affiliates of any of them as a division or part
of it, (xxiv) will not enter into or be a party to, any transaction
with its partners, members, shareholders, beneficiaries, trustees or
its Affiliates except in the ordinary course of its business and on
terms which are intrinsically fair and are no less favorable to it
than would be obtained in a comparable arms-length
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transaction with an unrelated third party, (xxv) will pay the
salaries of its own employees from its own funds, (xxvi) will
maintain adequate capital in light of its contemplated business
operations, (xxvii) if such Entity is a limited liability company,
limited partnership, or business trust then such Entity shall
continue and not dissolve whether as a consequence of bankruptcy or
insolvency of one or more of the members, general partners, or
trustees, as applicable, or otherwise, for so long as a solvent
managing member, general partner, or trustee, as applicable, exists
and, subject to applicable law, dissolution of the entity shall not
occur so long as the entity remains owner of the Premises subject to
the Deed of Trust. Such entity's organizational documents shall
contain such provision.
2. Borrower shall not:
(a) except as required by applicable Legal Requirements,
construct any building or structure nor make any alteration
or addition (other than normal repair and maintenance) to (i)
the roof or any structural component of any Improvements on
the Premises, or (ii) the building operating systems,
including but not limited to, the mechanical, electrical,
heating, cooling, or ventilation systems (other than
replacement with equal or better quality and capacity),
without the prior written consent of Lender not to be
unreasonably withheld;
(b) remove or demolish any material Improvements, or any portion
thereof, which at any time constitutes a part of the
Premises.
Notwithstanding anything hereinabove to the contrary,
Borrower may construct, remove or demolish tenant
improvements within the then existing building(s) or other
structures to the extent such work is required solely under
the terms of any Leases approved by Lender provided (i) no
Event of Default exists under the Loan Documents; (ii) the
work is completed on a timely basis, in a good, workmanlike,
lien-free manner and in accordance with all Legal
Requirements, and (iii) such work does not negatively affect
the structural integrity of the Improvements or the value of
the Premises;
(c) cause or permit any change to be made in the general use of
the Premises without Lender's prior written consent;
(d) initiate any or acquiesce to a zoning reclassification or
material change in zoning without Lender's prior written
consent. Borrower shall use all reasonable efforts to contest
any such zoning reclassification or change;
(e) make or permit any use of the Premises that could with the
passage of time result in the creation of any right of use,
or any claim of adverse
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possession or easement on, to or against any part of the
Premises in favor of any person or entity or the public;
(f) allow any of the following to occur (unless a Permitted
Transfer):
(i) a Transfer of all or any portion of the Premises or
any interest in the Premises;
(ii) a Transfer of any ownership interest in Borrower or
any entity which owns, directly or indirectly, an
interest in Borrower at any level of the ownership
structure; or
(iii) in addition to (i) and (ii) above, if the Borrower is
a trust, or if a trust owns an interest, directly or
indirectly, in any entity which owns an interest in
Borrower at any level of the ownership structure, the
addition, deletion or substitution of a trustee of
such trust.
If any of such events occur, it shall be null and void and
shall constitute an Event of Default under the Loan
Documents.
It is understood and agreed that the Indebtedness evidenced
by the Note is personal to Borrower and in accepting the same
Lender has relied upon what it perceived as the willingness
and ability of Borrower to perform its obligations under the
Loan Documents and the Environmental Indemnity and as lessor
under the Leases of the Premises. Furthermore, Lender may
consent to a Transfer and expressly waive Borrower's
covenants contained in this paragraph 2(f), in writing to
Borrower; however any such consent and waiver shall not
constitute any consent or waiver of such covenants as to any
Transfer other than that for which the consent and waiver was
expressly granted. Furthermore, Lender's willingness to
consent to any Transfer and waive Borrower's covenants
contained in this paragraph 2(f), implies no standard of
reasonableness in determining whether or not such consent
shall be granted and the same may be based upon what Lender
solely deems to be in its best interest.
For purposes of the Loan Documents, the following terms shall
have the respective meanings set forth below:
"TRANSFER" or "TRANSFERRED" shall mean with respect to the
Premises, an interest in the Premises, or an ownership
interest or interest therein:
(i) a sale, assignment, transfer, conveyance or other
disposition (whether voluntary, involuntary or by
operation of law);
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(ii) the creation, sufferance or granting of any lien,
encumbrance, security interest or collateral
assignment (whether voluntarily, involuntarily or by
operation of law), other than the lien hereof, the
leases of the Premises assigned to Lender, the
Permitted Encumbrances, the granting of a lien on a
tenant's interest under any Lease in accordance with
the terms specifically set forth therein, and those
liens which Borrower is contesting in accordance with
the provisions of paragraph 1(e);
(iii) the issuance or other creation of ownership interests
in an entity;
(iv) the reconstitution or conversion from one entity to
another type of entity;
(v) a merger, consolidation, reorganization or any other
business combination; or
(vi) a conversion to or operation of all or any portion of
the Premises as a cooperative or condominium form of
ownership.
"PERMITTED TRANSFER" shall mean:
(i) a minor (as determined by Lender) conveyance of an
interest in the Premises by Borrower, such as a
utility easement, and for which Lender has given its
prior written consent and imposed such conditions as
Lender deems advisable and appropriate;
(ii) a sale, assignment, transfer or conveyance of all or
any portion of the Premises or an interest in the
Premises for which Borrower has complied with all of
the Property Transfer Requirements; or
(iii) any of the following Transfers for which Borrower has
complied with all of the Ownership Transfer
Requirements as applicable and Lender has given its
prior written consent (and in connection with such
consent, Lender may impose any conditions it wishes in
its sole discretion);
(A) a sale, assignment, transfer, or conveyance of
an ownership interest or interest therein;
(B) the issuance or other creation of ownership
interests in an entity;
(C) a reconstitution or conversion from one entity
to another type of entity;
(D) a merger, consolidation, reorganization or any
other business combination;
(iv) with at least thirty (30) days advance written notice,
transfers of ownership interests in Borrower and
entities owning interests in Borrower between Inland
Western Retail Real Estate Trust, Inc., a Maryland
corporation ("IWRRET"), and its wholly owned
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affiliates for which Borrower has complied with all of
the Specific Transfer Requirements - 1;
(v) with at least thirty (30) days advance written notice,
transfers of ownership interests in Borrower and/or
shares in entities owning interests in Borrower to
Qualified New Members (hereinafter defined), for which
Borrower has complied with all of the Specific
Transfer Requirements - 2 (for purposes of this
Permitted Transfer, a "Qualified New Member" shall be
defined as an institutional investor or fund managed
by an institutional investor having assets of
$100,000,000 or more;
(vi) with at least thirty (30) days advance written notice,
transfers of direct or indirect ownership interests in
Borrower and entities owning interests in Borrower and
IWRRET, and its wholly owned affiliates to a Qualified
Successor) (hereinafter defined) and/or its wholly
owned affiliates for which Borrower has complied with
all of the Specific Transfer Requirements - 3 (for
purposes of this Permitted Transfer, a "Qualified
Successor" shall be defined as an entity with a
tangible net worth of $200,000,000 or more); a debt to
equity ratio of 1.5 or less; and management personnel
experienced in the ownership and management of retail
properties similar to the Premises; or
(vii) transfers of ownership interests in IWRRET.
"PROPERTY TRANSFER REQUIREMENTS" are all of the following:
1. Prior review and approval of the proposed purchaser or
other transferee and the subject transaction by
Lender, at Lender's sole discretion. Review of the
proposed purchaser or other transferee and the subject
transaction shall encompass various factors,
including, but not limited to, the proposed
purchaser's or other transferee's creditworthiness,
financial strength, and real estate management and
leasing expertise as well as the proposed
transaction's effect on the Premises, the Borrower,
and other security for the Loan;
2. Payment to Lender of an assumption fee equal to the
greater of: (a) one half of one percent (0.5%) of the
principal balance of the Note; or (b) $15,000.00;
provided, however, that Lender will require $15,000.00
of such fee to be paid at the beginning of Lender's
review process, and such sum shall be nonrefundable
and earned upon receipt by Lender whether or not the
transaction is ultimately completed or Lender
ultimately approves the proposed purchaser or other
transferee;
11
3. Receipt, at Borrower's expense, of either (at Lender's
discretion) a new ALTA standard loan policy or an
endorsement updating the Lender's existing loan policy
in the full amount of the Loan, in form and by an
issuer satisfactory to Lender, and which insures this
Deed of Trust to be a first and prior lien subject
only to those exceptions which were previously
approved by Lender and provides coverage against usury
and mechanic's liens;
4. Receipt by Lender of copies of all relevant
information and documentation relating to or required
by Lender in connection with the proposed transfer
including but not limited to (a) the organizational
documents of the proposed transferee and an opinion of
counsel satisfactory to Lender as to its due
formation, valid existence and authority to enter into
and carry out the proposed transaction as well as the
proposed transferee's compliance with its status as a
Single Purpose Entity; (b) the deeds or other
instruments of transfer and documents relating to the
assignment and assumption of Leases; (c) evidence of
compliance with the insurance requirements contained
in the Loan Documents; and (d) compliance with such
other closing requirements as are customarily imposed
by Lender in connection with such transactions;
5. Execution, delivery, acknowledgment and recordation,
as applicable, of new, revised and/or replacement
assumption agreements, loan modification agreements,
indemnification agreements, escrow security or
property reserves agreements, security instruments,
financing statements, UCCs, new or revised letters of
credit and/or guarantees in form and substance
satisfactory to Lender;
6. Payment of outside counsel fees and costs, other
applicable professional's fees and costs, taxes,
recording fees and the like, and any other fees and
costs incurred;
7. Receipt by Lender of 60 days advance written notice of
the proposed Transfer in question;
8. Receipt by Lender of a waiver from any tenant having a
right or option to purchase the Premises or any
portion thereof, waiving such right or option in form
and substance acceptable to Lender; and
12
9. At Lender's option, and if required by the procedures
promulgated by any rating agency(ies) associated with
a securitization transaction with respect to the Loan,
receipt by Lender of written evidence from such
agency(ies) to the effect that the proposed transfer
will not result in a re-qualification, reduction or
withdrawal of any rating in effect immediately prior
to such transfer issued in connection with the
securitization transaction.
"OWNERSHIP TRANSFER REQUIREMENTS" are all of the Property
Transfer Requirements which Lender deems appropriate in its
discretion, as well as a reasonable processing fee to be
determined by Lender; provided, however, that (i) with
respect to item 2 of the Property Transfer Requirements, the
0.5% component of the fee shall be prorated (subject,
however, to the $15,000 minimum) based on Lender's
calculation of the effective percentage interest in Borrower
transferred, and (ii) item 3 of the Property Transfer
Requirements shall be required, at Lender's discretion, only
in the event of (A) a merger, consolidation, reorganization
or any other business combination, or (B) a reconstitution or
conversion from one entity to another type of entity.
"SPECIFIC TRANSFER REQUIREMENTS -1" are all of the following which
Borrower agrees to provide to Lender prior to each proposed
transfer: (i) a transfer fee of $2,000.00; (ii) all relevant
documentation and information related to the organization,
authority, and validity of the proposed ownership interest
purchaser, transferee and the transaction in general; (iii) all
documents and instruments of conveyance, transfer and assignment;
(iv) at Lender's discretion, a reaffirmation of the obligations of
the Guarantor(s) under the Guaranty; and (v) evidence of payment of
all outside counsel fees, professional fees, title insurance fees,
if any, and any and all other fees, costs and expenses related to
the proposed transfer (provided that no assumption or transfer fee
other than the $2,000 fee stated in (i) above shall be required).
"SPECIFIC TRANSFER REQUIREMENTS - 2" are all of the following which
Borrower agrees to provide to Lender prior to each proposed
transfer: IWRRET or a wholly owned affiliate thereof (i) (a) retains
51% or more of the ownership interest in the Borrower, or (b)
retains ownership of 20% to 50% of the ownership interest in the
Borrower subject to Lender's review and approval in each instance of
the proposed transferee and the subject transaction; Lender's review
of the proposed transferee and the subject transaction shall
encompass various factors, including but not limited to,
transferee's creditworthiness, financial strength, and real estate
management expertise, as well as the proposed transaction's effect
on the Premises, Borrower and the other security for the Loan, and
(ii) otherwise retains operational and management control of
Borrower as determined by Lender, and further provided Borrower
provides Lender each of the following items prior to
13
each proposed transfer: (a) a transfer fee equal to the greater of
$5,000.00 or the product of the percentage ownership interest in
Borrower to be transferred multiplied by one percent (1%) of the
outstanding principal balance of the Loan; (b) all relevant
documentation and information related to the organization,
authority, and validity of the proposed ownership interest
purchaser, transferee and the transaction in general; (c) all
documents and instruments of conveyance, transfer and assignment;
(d) a reaffirmation of the obligations of the Guarantor(s) under the
Guaranty; and (e) evidence of payment of all outside counsel fees,
professional fees, title insurance fees and any and all other fees,
costs and expenses related to the proposed transfer (provided that
no assumption or transfer fee other than the $5,000.00 fee stated in
(a) above shall be required).
"SPECIFIC TRANSFER REQUIREMENTS - 3" are all of the following which
Borrower agrees to provide to Lender prior to each proposed
transfer: (i) said transfers are made to accommodate either the
merger of IWRRET with the Qualified Successor or the sale of a
majority of IWRRET's assets to the Qualified Successor; and (ii) the
Qualified Successor retains direct or indirect ownership of 51% or
more of the ownership interests in the Borrower and (iv) the
Qualified Successor otherwise retains operational and management
control of Borrower as determined by Lender, and further provided,
Borrower provides Lender with each of the following items prior to
the proposed transfer: (a) a transfer fee of $10,000.00; (b) all
relevant documentation and information related to the organization,
authority, and validity of the proposed ownership interest
purchaser, transferee and the transaction in general; (c) all
documents and instruments of conveyance, transfer and assignment;
(d) a reaffirmation of the obligations of the Guarantor(s) under the
Guaranty or assumption thereof by an individual(s) or entity(ies)
acceptable to Lender in its sole discretion; and (e) evidence of
payment of all outside counsel fees, professional fees, title
insurance fees and any and all other fees, costs and expenses
related to the proposed transfer (provided that no assumption or
transfer fee other than the $10,000.00 fee stated in (a) above shall
be required).
3. (a) Borrower shall pay or cause to be paid when due and before
any penalty attaches or interest accrues all general taxes,
special taxes, assessments (including assessments for
benefits from public works or improvements whenever begun or
completed), utility charges, water charges, sewer service
charges, common area maintenance charges, if any, vault or
space charges and all other like charges against or affecting
the Premises or against any property or equipment located on
the Premises, or which might become a lien on the Premises,
and shall, within 10 days following Lender's request, furnish
to Lender a duplicate receipt of such payment. If any such
tax, assessment or charge may legally be paid in
installments, Borrower may, at its option, pay such tax,
assessment or charge in installments.
14
(b) If Borrower desires to contest any tax, assessment or charge
relating to the Premises, Borrower may do so by paying the
same in full, under protest, in the manner provided by law;
provided, however, that
(i) if contest of any tax, assessment or charge may be
made without the payment thereof, and
(ii) such contest shall have the effect of preventing the
collection of the tax, assessment or charge so
contested and the sale or forfeiture of the Premises
or any part thereof or any interest therein to satisfy
the same,
then Borrower may in its discretion and upon the giving of
written notice to Lender of its intended action and upon the
furnishing to Lender of such security or bond as Lender may
require, contest any such tax, assessment or charge in good
faith and in the manner provided by law. All costs and
expenses incidental to such contest shall be paid by
Borrower. In the event of a ruling or adjudication adverse to
Borrower, Borrower shall promptly pay such tax, assessment or
charge. Borrower shall indemnify and save harmless the Lender
and the Premises from any loss or damage arising from any
such contest and shall, if necessary to prevent sale,
forfeiture or any other loss or damage to the Premises or to
Lender, pay such tax, assessment or charge or take whatever
action is necessary to prevent any sale, forfeiture or loss.
4. (a) Borrower shall at all times keep or cause to be kept in force
(i) property insurance insuring all Improvements which now
are or hereafter become a part of the Premises for perils
covered by a causes of loss-special form insurance policy,
including coverage against terrorism containing both
replacement cost and agreed amount endorsements or equivalent
coverage; (ii) commercial general liability insurance naming
Lender as an additional insured protecting Borrower and
Lender against liability for bodily injury or property damage
occurring in, on or adjacent to the Premises in commercially
reasonable amounts; (iii) boiler and machinery insurance if
the property has a boiler or is an office building; (iv)
rental value insurance for the perils specified herein for
one hundred percent (100%) of the Rents (including operating
expenses, real estate taxes, assessments and insurance costs
which are lessee's liability) for a period of twelve (12)
months; (v) builders risk insurance during all periods of
construction; and (vi) insurance against all other hazards as
may be reasonably required by Lender, including, without
limitation, insurance against loss or damage by flood.
Notwithstanding anything herein above to the contrary, if
neither: (i) property insurance without an exclusion for
terrorism, terrorist acts or similar perils ("Terrorism")
nor; (ii) a separate policy insuring specifically
15
against Terrorism is available at a cost which is in Lender's
opinion is commercially reasonable, taking into
consideration, among other things: (a) how properties similar
in type, size, quality and location are insured with respect
to Terrorism; and (b) the amount of coverage, premium and
deductible applicable to such insurance, then Lender agrees
to waive the requirement to provide insurance covering
Terrorism until such coverage again becomes available at a
cost, which in Lender's opinion is commercially reasonable.
(b) All insurance (including deductibles and exclusions) shall be
in form, content and amounts approved by Lender and written
by an insurance company or companies approved by Lender and
rated A-, class size VIII or better in the most current issue
of Best's Insurance Reports and which is licensed to do
business in the state in which the Premises are located or a
governmental agency or instrumentality approved by Lender.
The policies for such insurance shall have attached thereto
standard mortgagee clauses in favor of and permitting Lender
to collect any and all proceeds payable thereunder and shall
include a 30 day (except for nonpayment of premium, in which
case, a 10 day) notice of cancellation clause in favor of
Lender. All certificates of insurance (or policies if
requested by Lender) shall be delivered to and held by Lender
as further security for the payment of the Note and any other
obligations arising under the Loan Documents, with evidence
of renewal coverage delivered to Lender at least 30 days
before the expiration date of any policy. Borrower shall not
carry or permit to be carried separate insurance, concurrent
in kind or form and contributing in the event of loss, with
any insurance required in the Loan Documents.
(c) Unless Borrower provides evidence of the insurance coverage
required by this Deed of Trust, Lender may purchase insurance
at Borrower's expense to protect Lender's interests in
Borrower's collateral. This insurance may, but need not,
protect Borrower's interests. The coverage that Lender
purchases may not pay any claim that Borrower makes or any
claim that is made against Borrower in connection with the
collateral. Borrower may later cancel any insurance purchased
by Lender, but only after providing evidence that Borrower
has obtained insurance as required by this Deed of Trust. If
Lender purchases insurance for the collateral, Borrower will
be responsible for the costs of that insurance, including the
insurance premium, interest and any other charges Lender may
impose in connection with the placement of the insurance,
until the effective date of the cancellation or expiration of
the insurance. The costs of the insurance may be added to
Borrower's total outstanding balance or obligation. The costs
of the insurance may be more than the cost of insurance
Borrower may be able to obtain on its own.
16
5. (a) Upon the occurrence of an Event of Default and upon request
of Lender, Borrower shall deposit with and pay to Lender, on
the Closing Date and/or on each payment date specified in the
Note, sums calculated by Lender for payment of the following
as they become due and payable: (i) the estimated taxes and
assessments assessed or levied against the Premises, and (ii)
the estimated premiums for insurance required by the Loan
Documents, excluding commercial general liability insurance.
Lender shall use such deposits to pay the taxes, assessments
and premiums when the same become due. Borrower shall procure
and deliver to Lender, in advance, statements for such
charges. If the total payments made by Borrower under this
paragraph exceed the amount of payments actually made by
Lender for taxes, assessments and insurance premiums, such
excess shall be credited by Lender on subsequent deposits to
be made by Borrower. If, however, the deposits are
insufficient to pay the taxes, assessments and insurance
premiums when the same shall be due and payable, Borrower
will pay to Lender any amount necessary to make up the
deficiency, five (5) business days before the date when
payment of such taxes, assessments and insurance premiums
shall be due. If at any time Borrower shall tender to Lender,
in accordance with the provisions of the Note secured by this
Deed of Trust, full payment of the entire Indebtedness
represented thereby, Lender shall, in computing the amount of
such Indebtedness, credit to the account of Borrower any
balance remaining in the funds accumulated and held by Lender
under the provisions of this paragraph. If there is an Event
of Default resulting in a public sale of the Premises, or if
Lender otherwise acquires the Premises after an Event of
Default, Lender shall apply, at the time of commencement of
such proceedings, or at the time the Premises is otherwise
acquired, the balance then remaining in the funds accumulated
under this paragraph as a credit toward any delinquent or
accrued taxes and then in such priority as Lender elects to
the other Indebtedness.
(b) Any funds held under this paragraph shall not constitute any
deposit or account of the Borrower or moneys to which the
Borrower is entitled upon demand, or upon the mere passage of
time, or stuns to which Borrower is entitled to any interest
or crediting of interest by virtue of Lender's mere
possession of such deposits. Lender shall not be required to
segregate such deposits and may hold such deposits in its
general account or any other account and may commingle such
deposits with any other moneys of Lender or moneys which
Lender is holding on behalf of any other person or entity.
17
6. In the event of any damage to or destruction of the Premises, or any
part thereof:
(a) Borrower will immediately notify Lender thereof in the manner
provided in this Deed of Trust for the giving of notices.
Lender shall have the right (which may be waived by Lender in
writing) to settle and adjust any claim under such insurance
policies required to be maintained by Borrower. In all
circumstances, the proceeds thereof shall be paid to Lender
and Lender is authorized to collect and to give receipts
therefor. Borrower agrees and acknowledges that such proceeds
shall be held by Lender without any allowance of interest and
that in any bankruptcy proceeding of Borrower, all such
proceeds shall be deemed to be "Cash Collateral" as that term
is defined in Section 363 of the Bankruptcy Code. Provided
that no Event of Default exists, Borrower shall have the
right to participate in any settlement or adjustment;
provided, however, that any settlement or adjustment shall be
subject to the written approval of Lender, not to be
unreasonably withheld.
(b) Such proceeds, after deducting therefrom any reasonable
expenses incurred by Lender in the collection thereof
(including but not limited to reasonable attorneys' fees and
costs), shall be applied by Lender to pay the Indebtedness
secured hereby including, but not limited to the Make Whole
Premium, whether or not then due and payable, provided,
however, that if no Event of Default exists at the time of
such application, no Make Whole Premium shall be due.
Notwithstanding anything hereinabove to the contrary,
(i) in the event the casualty occurs more than six (6)
months prior to the Maturity Date and no Event of
Default exists, Lender shall apply such proceeds as
outlined below; provided, further, that Lender's
rights in this subparagraph are subject to Borrower's
rights to use such proceeds for rebuilding and
restoring the buildings and improvements as may be
required or permitted by law in effect at the time of
the loss.
(A) If the aggregate amount of such proceeds is less
than $250,000, Lender shall pay such proceeds
directly to Borrower, to be held in trust for
Lender and applied to the cost of rebuilding and
restoring the Premises.
(B) If the aggregate amount of such proceeds equals
or exceeds $250,000 Lender shall disburse such
amounts of the proceeds as Lender reasonably
deems necessary for the
18
repair or replacement of the Premises, subject
to the conditions set forth in paragraph 6(c)
below.
(ii) in the event (x) an Event of Default exists, or (y)
the casualty occurs during the last six (6) months
prior to the Maturity Date and Lender determines that
the repair and restoration of such casualty cannot be
completed prior to the Maturity Date, or (z) the
conditions set forth in paragraph 6(c) are not met,
then Lender, in its sole and absolute discretion may
either:
(A) declare the entire Indebtedness to be
immediately due and payable, provided, however,
that if no Event of Default exists, no Make
Whole Premium shall be due. All proceeds shall
be applied toward payment of the Indebtedness in
such priority as Lender elects; or
(B) disburse such proceeds as Lender reasonably
deems necessary for the repair or replacement of
the Premises subject to those conditions set
forth in paragraph 6(c) which Lender in its sole
and absolute discretion may require.
(c) (i) In the event that Borrower is to be reimbursed out of
the insurance proceeds or out of any award or payment
received with respect to a Taking, Lender shall from
time to time make available such proceeds, subject to
the following conditions: (a) there continues to exist
no Event of Default; (b) the delivery to Lender of
satisfactory evidence of the estimated cost of
completion of such repair and restoration work and
any architect's certificates, waivers of lien,
contractor's sworn statements, and other evidence of
cost and of payment and of the continued priority of
the lien hereof over any potential liens of mechanics
and materialmen (including, without limitation, title
policy endorsements) as Lender may reasonably require
and approve; (c) the time required to complete the
repair and restoration work and for the income from
the Premises to return to the level it was prior to
the loss will not exceed the coverage period of the
rental value insurance required hereunder; (d) the
annual net cash flow (annual net operating income
after deduction for tenant improvements, leasing
commissions, annual replacement reserves, and a
management fee) shall equal or exceed 1.5 times the
annual debt service on the Note. Only net operating
income from approved executed Leases in effect on the
Premises, having at least three (3) years remaining
prior to the expiration of their term, with no uncured
defaults, shall be used in Lender's determination of
the annual net cash flow; (e) Lender approves the
19
plans and specifications of such work before such work
is commenced if the estimated cost of rebuilding and
restoration exceeds 25% of the Indebtedness or
involves any structural changes or modifications. If
said plans and specifications substantially comply
with those previously approved by Lender, Lender's
approval shall not be unreasonably withheld; (f) if
the amount of any insurance proceeds, award or other
payment is insufficient to cover the cost of restoring
and rebuilding the Premises, Borrower shall pay such
cost in excess of such proceeds, award or other
payment before being entitled to reimbursement out of
such funds; (g) Borrower pays to Lender a
non-refundable processing fee equal to the greater of
$5,000.00 or .25% of the amount of such proceeds
within sixty (60) days of the occurrence of any such
damage or destruction and before Lender disburses any
proceeds; and (h) such other conditions to such
disbursements, in Lender's reasonable discretion, as
would be customarily required by a construction lender
doing business in the area where the Premises is
located or which are otherwise required by any rating
agency rating a securitization transaction with
respect to the Loan.
(ii) No payment made by Lender prior to the final
completion of the repair or restoration work shall,
together with all payments theretofore made, exceed
90% of the cost of such work performed to the time of
payment, and at all times the undisbursed balance of
said proceeds shall be at least sufficient to pay for
the cost of completion of such work free and clear of
all liens. Any proceeds remaining after payment of the
cost of rebuilding and restoration shall, at the
option of Lender, either be (a) applied in reduction
of the Indebtedness secured hereby, provided, however,
that if no Event of Default exists at the time of such
application, no Make Whole Premium shall be due, or
(b) paid to Borrower.
(iii) Repair and restoration of the Premises shall be
commenced promptly after the occurrence of the loss
and shall be prosecuted to completion diligently, and
the Premises shall be so restored and rebuilt to
substantially the same character and quality as prior
to such damage and destruction and shall comply with
all Legal Requirements.
(d) Should such damage or destruction occur after foreclosure or
sale proceedings have been instituted, the proceeds of any
such Insurance policy or policies, if not applied in
rebuilding or restoration of the Improvements, shall be used
to pay (i) the Indebtedness then due and owing in the event
of a non-judicial sale in such priority as Lender elects,
20
or (ii) the amount due in accordance with any decree of
foreclosure or deficiency judgment that may be entered in
connection with such proceedings, and the balance, if any,
shall be paid to the owner of the equity of redemption if it
shall then be entitled to the same, or otherwise as any court
having jurisdiction may direct.
7. In the event of the commencement of a Taking affecting the Premises:
(a) Borrower shall notify Lender thereof in the manner provided
in this Deed of Trust for the giving of notices. Lender may
participate in such proceeding, and Borrower shall deliver to
Lender all documents requested by it to permit such
participation.
(b) Borrower shall cause the proceeds of any award or other
payment made relating to a Taking, to be paid directly to
Lender. Lender, in its sole and absolute discretion: (i) may
apply all such proceeds to pay the Indebtedness in such
priority as Lender elects, provided however, that if no Event
of Default exists at the time of such application no Make
Whole Premium shall be due; or (ii) subject to and in
accordance with the provisions set forth in paragraph 6(c)
above, may disburse such amounts of the proceeds as Lender
reasonably deems necessary for the repair or replacement of
the Premises.
Notwithstanding anything herein above to the contrary, provided no
Event of Default exists, Lender agrees to disburse the proceeds
received from any Inconsequential Taking, as hereinafter defined, to
Borrower for the repair and/or replacement of the Premises. An
Inconsequential Taking shall be a Taking which (i) results in less
than $250,000 in proceeds; (ii) does not, in Lender's determination,
materially or adversely affect the Improvements, parking, access,
ingress, egress or use of the Premises; and (iii) does not trigger
any rights or options of tenants under the Leases.
8. If by the laws of the United States of America or of any state or
governmental subdivision having jurisdiction over Borrower or of the
Premises or of the Loan evidenced by the Loan Documents or any
amendments or modifications thereof, any tax or fee is due or
becomes due or is imposed upon Lender in respect of the issuance of
the Note hereby secured or the making, recording and registration of
this Deed of Trust or otherwise in connection with the Loan
Documents, the Environmental Indemnity or the Loan, except for
Lender's income or franchise tax, Borrower covenants and agrees to
pay such tax or fee in the manner required by such law and to hold
harmless and indemnify Trustee and Lender, their successors and
assigns, against any liability incurred by reason of the imposition
of any such tax or fee.
21
9. (a) Upon the occurrence of any Event of Default, Lender may, but
need not, make any payment or perform any act herein required
of Borrower, in any form and manner deemed expedient and may,
but need not, make full or partial payments of principal or
interest on prior encumbrances, if any, and purchase,
discharge, compromise or settle any tax lien or other prior
lien or title or claim thereof, or redeem from any tax sale
or forfeiture affecting said Premises, or contest any tax or
assessment. All moneys paid for any of the purposes herein
authorized and all reasonable expenses paid or incurred in
connection therewith, including but not limited to,
reasonable attorneys' fees and costs and reasonable
attorneys' fees and costs on appeal, and any other money
advanced by Lender to protect the Premises and the lien
hereof, shall be so much additional Indebtedness secured
hereby and shall become immediately due and payable without
notice and with interest thereon at the Default Rate from the
date of expenditure or advance until paid.
(b) In making any payment hereby authorized relating to taxes or
assessments or for the purchase, discharge, compromise or
settlement of any prior lien, Lender may make such payment
according to any xxxx, statement or estimate secured from the
appropriate public office without inquiry into the accuracy
thereof or into the validity of any tax, assessment, sale,
forfeiture, tax lien or title or claim thereof or without
inquiry as to the validity or amount of any claim for lien
which may be asserted.
10. If one or more of the following events (herein called an "EVENT OF
DEFAULT" or "EVENTS OF DEFAULT" as the context so requires) shall
have occurred:
(a) failure to pay when due any principal, interest, Make Whole
Premium or other Indebtedness, utilities, taxes or
assessments or insurance premiums required pursuant to the
Loan Documents or the Environmental Indemnity, and such
failure shall have continued for 5 days as to payment of any
principal, interest or taxes or assessments, or insurance
premiums or for 5 days after written notice specifying such
default is given by Lender to Borrower as to payment of any
Make Whole Premium; or
(b) Borrower, Interest Owner or any guarantor voluntarily brings
or acquiesces to any of the following: (A) any action for
dissolution, act of dissolution or dissolution or the like of
Borrower, Interest Owner or any guarantor under the Federal
Bankruptcy Code as now or hereafter constituted; (B) the
filing of a petition or answer proposing the adjudication of
Borrower, Interest Owner or any guarantor as a bankrupt or
its reorganization or arrangement, or any composition,
readjustment, liquidation, dissolution or similar relief with
respect to it pursuant to any present or future federal or
state bankruptcy or similar law; or (C) the appointment by
order of a court
22
of competent jurisdiction of a receiver, trustee or
liquidator of the Premises or any part thereof or of
Borrower, Interest Owner or any guarantor or of substantially
all of the assets of Borrower, Interest Owner or any
guarantor; or
(c) one or more of the items set forth in paragraph 10(b) above
occur which were either not (i) voluntarily brought by
Borrower, Interest Owner or any guarantor or (ii) acquiesced
in by Borrower, Interest Owner or any guarantor, and which
are not discharged or dismissed within 90 days after the
action, filing or appointment, as the case may be; or
With respect to the matters in (b) and (c) above for an
Interest Owner only, no Event of Default shall occur until an
interested party or Interest Owner asserts a claim or right
against Borrower or the Premises which delays or otherwise
affects Lender's rights, remedies, or interests granted under
the Loan Documents (whether or not such assertion is
successful).
(d) with respect to the matters not described in the other
subparagraphs of this paragraph 10, failure to duly observe
or perform any covenant, condition or agreement of the
Borrower or any guarantor contained in this Deed of Trust,
the Guaranty, the Note or the Assignment of Leases from
Borrower to Lender or in any other instrument or agreement
which evidences or secures the Loan (the "LOAN DOCUMENTS"),
or in the Environmental Indemnity and such failure shall have
continued for 30 days after Notice specifying such failure is
given by Lender to Borrower; or
If any failure to observe or perform under (d) above shall be
of such nature that it cannot be cured or remedied within 30
days, Borrower shall be entitled to a reasonable period of
time to cure or remedy such failure (not to exceed 90 days
following the giving of Notice), provided Borrower commences
the cure or remedy thereof within the 30 day period following
the giving of Notice and thereafter proceeds with diligence,
as determined by Lender, to complete such cure or remedy.
(e) the failure of Borrower to duly observe or perform any of the
covenants, conditions and agreements of the Borrower
contained in paragraph 2(f) of this Deed of Trust; or
(f) any representation when made by or on behalf of Borrower,
Interest Owner or any guarantor regarding the Premises, the
making or delivery of any of the Loan Documents or the
Environmental Indemnity or in any material written
information provided by or on behalf of Borrower, Interest
Owner or any guarantor in connection with the Loan shall
prove to be untrue or Inaccurate in any material respect; or
23
(g) the failure of Borrower to give Notice to Lender within 90
days after the death of any individual who is personally
liable for any obligation under the Loan Documents or the
Environmental Indemnity, as Borrower, indemnitor or
guarantor, whether or not such individual had executed the
Note or this Deed of Trust; or
(h) subject to the provisions of paragraph 2(f), the failure of
Borrower to provide Lender with an assumption agreement in
form and substance and executed by a person(s) or entity(ies)
acceptable to Lender in its sole discretion to assume the
obligations of any deceased individual who is personally
liable for any obligation under the Loan Documents or the
Environmental Indemnity, as Borrower, indemnitor or
guarantor, whether or not such individual had executed the
Note or this Deed of Trust, and such failure shall have
continued for 90 days after the death of such individual; or
(i) the failure of Borrower to remain a Single-Purpose Entity; or
(j) notification of Lender by Borrower of Borrower's election
pursuant to Mo. Rev. Stat. Section 443.055 to terminate the
operation of this Deed of Trust as security for future
advances or future obligations; or
(k) the failure of Borrower to duly observe or perform any of the
covenants, conditions and agreements of Borrower contained in
paragraph 1(m) of this Deed of Trust;
then, in each and every such case, the whole of said principal sum
hereby secured shall, at the option of the Lender and without
further notice to Borrower, become immediately due and payable
together with accrued interest thereon, a Make Whole Premium
calculated in accordance with the provisions of the Loan Documents
and all other Indebtedness, and whether or not Lender has exercised
said option, interest shall accrue on the entire principal balance
and any interest or Make Whole Premium or other Indebtedness then
due, at the Default Rate until fully paid or if Lender has not
exercised said option, for the duration of any Event of Default
11. Borrower agrees that if Lender accelerates the whole or any part of
the principal sum hereby secured after the occurrence of an Event of
Default, or applies any proceeds pursuant to the provisions hereof,
Borrower waives any right to prepay the principal sum hereby secured
in whole or in part without premium and agrees to pay, as yield
maintenance protection and not as a penalty, a "MAKE WHOLE PREMIUM".
However, in the event any proceeds from a casualty or Taking of the
Premises are applied to reduce the principal balance under the Note,
no Make
24
Whole Premium shall be due so long as no Event of Default exists at
the time of such application. The Make Whole Premium shall be the
greater of one percent (1%) of the principal amount to be prepaid or
a premium calculated as follows:
(a) Determine the "REINVESTMENT YIELD." The Reinvestment Yield
will be equal to the yield on the U.S. Treasury Issue
("PRIMARY ISSUE")* published one week prior to the date of
prepayment and converted to an equivalent monthly compounded
nominal yield.
*At this time there is not a U.S. Treasury Issue for this prepayment
period. At the time of prepayment, Lender shall select in its sole
and absolute discretion a U.S. Treasury Issue with similar remaining
time to the Maturity Date.
(b) Calculate the "PRESENT VALUE OF THE LOAN." The Present Value
of the Loan is the present value of the payments to be made
in accordance with the Note (all installment payments and any
remaining payment due on the Maturity Date) discounted at the
Reinvestment Yield for the number of months remaining from
the date of prepayment to the Maturity Date. In the event of
a partial prepayment as a result of the aforementioned
application of proceeds, the Present Value of the Loan shall
be calculated in accordance with the preceding sentence
multiplied by the fraction which results from dividing the
amount of the prepaid proceeds by the principal balance
immediately prior to prepayment.
(c) Subtract the amount of the prepaid proceeds from the Present
Value of the Loan as of the date of prepayment. Any resulting
positive differential shall be the premium.
Notwithstanding anything herein to the contrary, during the last 90
days prior to the Maturity Date, the Make Whole Premium shall not be
subject to the one percent (1%) minimum and shall be calculated only
as provided in (a) through (c) above.
12. Upon the occurrence of any Event of Default, in addition to any
other rights or remedies granted or available to Lender hereunder or
under the other Loan Documents, at law, in equity or otherwise,
Lender may declare all sums secured hereby immediately due and
payable by delivery to Trustee of written declaration of default and
demand for sale and this Deed of Trust shall remain in force; and
said Trustee or its successor or successors as hereinafter provided
for, at the request of the legal holder of the aforesaid Note, may
proceed to sell the Premises hereinbefore conveyed, or any part
thereof, at public vendue or outcry at the place then customarily
employed for that purpose in the county where the Premises are
located (or, if located in the City of St. Louis, then the said
City) to the highest bidder for cash, first giving the public notice
as required by law of the time, terms
25
and place of sale and description of the property to be sold, by
advertisement published as is provided by the laws of the State of
Missouri then in effect, and on such sale Trustee shall receive the
proceeds thereof and shall execute a deed or deeds, in fee simple to
the property sold, to the purchaser or purchasers thereof, and any
deed made by Trustee in pursuance of the power herein granted and
all recitals therein contained shall be conclusive proof of the
facts therein set forth. At such sale, Lender shall be entitled to
bid for or purchase the mortgaged Premises, the same as any third
person might do. Trustee shall pay out the proceeds of such sale,
first, the cost and expense of executing this trust, including
attorneys fees of the Trustee and lawful compensation to the Trustee
for its services as provided by statute, next, it shall repay any
money advanced for taxes, insurance or other advances or charges
with interest thereon, as above provided, next, the amount unpaid on
said Note together with the interest accrued thereon and all overdue
payments and charges provided for herein and all other sums or
amounts due under the terms of any of the Loan Documents, and, the
remainder, if any, shall be paid to such parties as may legally be
entitled thereto.
13. Notwithstanding anything to the contrary in paragraph 12 or any
other provision hereof, all rights of the Lender or any other legal
holder of the Note, including without limitation, to commence a
lawsuit for payment of the Note, to foreclose this Deed of Trust by
judicial action or to take any other legal action to enforce this
Deed of Trust by judicial action or to take any other legal action
to enforce payment of said Indebtedness, by court proceedings for
legal or equitable relief, or otherwise, shall remain intact and
may be pursued by Lender or such other legal holder at its option
and in its sole discretion.
14. (a) In the event of such a sale of the Premises or any part
thereof and the execution of a deed or deeds therefor under
these trusts, any recital therein of the occurrence of an
Event of Default or of the giving or recording of any notice
or demand by Trustee or Lender regarding such sale shall be
conclusive proof thereof, and the receipt of the purchase
money recited therein shall fully discharge the purchaser
from any obligation for the proper application of the
proceeds of sale in accordance with these trusts.
(b) No Trustee shall be disqualified from acting as Trustee
hereunder, or from performing any of the duties as Trustee or
from exercising the rights, powers, and remedies herein
granted by reason of the fact such Trustee is an officer,
employer or stockholder of the Lender, or is interested,
directly or indirectly, as the holder of the Note hereby
secured, Borrower hereby expressly consenting to Trustee
acting as such Trustee irrespective of the fact that Trustee
might otherwise be disqualified for any of the foregoing
reasons, and that any Interest which such Trustee or any
successor shall have or may acquire in the debt hereby
secured, or the Premises hereby conveyed, shall neither
interfere with nor prevent their acting as Trustee or
26
from purchasing the Premises at the sale, and all parties
waive any objection to Trustee or from purchasing the
Premises at the sale, and all parties waive any objection to
Trustee having acquiring any such interest in the debt or
property aforesaid and continuing to act as such Trustee.
15. Following the occurrence of an Event of Default, unless the same has
been specifically waived in writing, Borrower shall forthwith upon
demand of Trustee or Lender surrender to Lender possession of the
Premises, and Lender shall be entitled to take actual possession of
the Premises or any part thereof personally or by its agents or
attorneys, and Lender in its discretion may, with or without force
and with or without process of law, enter upon and take and maintain
possession of all or any part of the Premises together with all
documents, books, records, papers and accounts of the Borrower or
the then owner of the Premises relating thereto, and may exclude
Borrower, its agents or assigns wholly therefrom, and may as
attorney-in-fact or agent of the Borrower, or in its own name as
Lender and under the powers herein granted:
(a) hold, operate, maintain, repair, rebuild, replace, alter,
improve, manage or control the Premises as it deems
judicious, insure and reinsure the same and any risks related
to Lender's possession, operation and management thereof and
receive all Rents, either personally or by its agents, and
with full power to use such measures, legal or equitable, as
in its discretion it deems proper or necessary to enforce the
payment or security of the Rents, including actions for the
recovery of Rent, actions in forcible detainer and actions in
distress for Rents, hereby granting full power and authority
to exercise each and every of the rights, privileges and
powers herein granted at any and all times hereafter, without
notice to Borrower; and
(b) conduct leasing activity pursuant to the provisions of the
Assignment of Leases.
Neither Trustee nor Lender shall be obligated to perform or
discharge, nor does either hereby undertake to perform or discharge,
any obligation, duty or liability under any Lease. Except to the
extent that the same is caused solely by Lender's gross negligence
or willful misconduct, should Trustee or Lender incur any liability,
loss or damage under any Leases, or under or by reason of the
Assignment of Leases, or in the defense of any claims or demands
whatsoever which may be asserted against Lender or Trustee by reason
of any alleged obligations or undertakings on its part to perform or
discharge any of the terms, covenants or agreements in any Lease,
the amount thereof, including costs, expenses and reasonable
attorneys' fees and costs, including reasonable attorneys' fees and
costs on appeal, shall be added to the Indebtedness and secured
hereby.
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16. Upon the occurrence of an Event of Default, Trustee and Lender in
the exercise of the rights and powers conferred upon them shall have
the full power to use and apply the Rents, less costs and expenses
of collection to the payment of or on account of the items listed in
(a) - (c) below, at the election of Lender and in such order as
Lender may determine as follows:
(a) to the payment of (i) the expenses of operating and
maintaining the Premises, including, but not limited to the
cost of management, leasing (which shall include reasonable
compensation to Trustee, Lender and their respective agent or
agents if management and/or leasing is delegated to an agent
or agents), repairing, rebuilding, replacing, altering and
improving the Premises, (ii) premiums on insurance as
hereinabove authorized, (iii) taxes and special assessments
now due or which may hereafter become due on the Premises,
and (iv) expenses of placing the Premises in such condition
as will, in the sole judgment of Lender, make it readily
rentable;
(b) to the payment of any principal, interest or any other
Indebtedness secured hereby or any deficiency which may
result from any foreclosure sale;
(c) to the payment of established claims for damages, if any,
reasonable attorneys' fees and costs and reasonable
attorneys' fees and costs on appeal.
The manner of the application of Rents, the reasonableness of the
costs and charges to which such Rents are applied and the item or
items which shall be credited thereby shall be within the sole and
unlimited discretion of Lender. To the extent that the costs and
expenses in (a) and (c) above exceed the amounts collected, the
excess shall be added to the Indebtedness and secured hereby.
17. Upon the occurrence of any Event of Default, unless the same has
been specifically waived in writing, Lender may apply to any court
having jurisdiction for the appointment of a receiver of the
Premises. Such appointment may be made either before or after sale,
without notice, without regard to the solvency or insolvency of
Borrower at the time of application for such receiver and without
regard to the then value of the Premises or the adequacy of Lender's
security. Lender may be appointed as such receiver. The receiver
shall have power to collect the Rents during the pendency of any
foreclosure proceedings and, in case of a sale, during the full
statutory period of redemption, if any, as well as during any
further times when Borrower, except for the intervention of such
receiver, would be entitled to collect such Rents. In addition, the
receiver shall have all other powers which shall be necessary or are
usual in such cases for the protection, possession, control,
management and operation of the Premises during the whole of said
period. The court from time to time may authorize the receiver to
apply the net income in its possession at Lender's election and in
such order as
28
Lender may determine in payment in full or in part of those items
listed in paragraph 16.
18. (a) Borrower agrees that all reasonable costs, charges and
expenses, including but not limited to, reasonable attorneys'
fees and costs, incurred or expended by Trustee or Lender
arising out of or in connection with any action, proceeding
or hearing, legal, equitable or quasi-legal, including the
preparation therefor and any appeal therefrom, in any way
affecting or pertaining to the Loan Documents, the
Environmental Indemnity, or the Premises, shall be promptly
paid by Borrower. All such sums not promptly paid by Borrower
shall be added to the Indebtedness secured hereby and shall
bear interest at the Default Rate from the date of such
advance and shall be due and payable on demand.
(b) Borrower hereby agrees that upon the occurrence of an Event
of Default and the acceleration of the principal sum secured
hereby pursuant to this Deed of Trust, to the full extent
that such rights can be lawfully waived, Borrower hereby
waives and agrees not to insist upon, plead, or in any manner
take advantage of, any notice of acceleration, any stay,
extension, exemption, homestead, marshaling or moratorium law
or any law providing for the valuation or appraisement of all
or any part of the Premises prior to any sale or sales
thereof under any provision of this Deed of Trust or before
or after any decree, judgment or order of any court or
confirmation thereof, or claim or exercise any right to
redeem all or any part of the Premises so sold and hereby
expressly waives to the full extent permitted by applicable
law on behalf of itself and each and every person or entity
acquiring any right, title or interest in or to all or any
part of the Premises, all benefit and advantage of any such
laws which would otherwise be available to Borrower or any
such person or entity, and agrees that neither Borrower nor
any such person or entity will invoke or utilize any such law
to otherwise hinder, delay or impede the exercise of any
remedy granted or delegated to Lender herein but will permit
the exercise of such remedy as though any such laws had not
been enacted. Borrower hereby further expressly waives to the
full extent permitted by applicable law on behalf of itself
and each and every person or entity acquiring any right,
title or interest in or to all or any part of the Premises
any and all rights of redemption from any sale or any order
or decree of foreclosure obtained pursuant to provisions of
this Deed of Trust.
19. In accordance with and subject to the terms and conditions of the
Assignment of Leases, Borrower hereby assigns to Lender directly and
absolutely, and not merely collaterally, the interest of Borrower as
lessor under the Leases of the Premises and the Rents payable under
any Lease and/or with respect to the use of the Premises, or portion
thereof, including any oil, gas or mineral lease, or any
29
installments of money payable pursuant to any agreement or any sale
of the Premises or any part thereof, subject only to a license, if
any, granted by Lender to Borrower with respect thereto prior to the
occurrence of an Event of Default. Borrower has executed and
delivered the Assignment of Leases which grants to Lender specific
rights and remedies in respect of said Leases and governs the
collection of Rents thereunder and from the use of the Premises, and
such rights and remedies so granted shall be cumulative of those
granted herein.
The collection of such Rents and the application thereof as
aforesaid shall not cure or waive any Event of Default or notice of
default hereunder or invalidate any act done pursuant to such
notice, except to the extent any such Event of Default is fully
cured. Failure or discontinuance of Lender at any time, or from time
to time, to collect any such moneys shall not impair in any manner
the subsequent enforcement by Lender of the right, power and
authority herein conferred on Lender. Nothing contained herein,
including the exercise of any right, power or authority herein
granted to Lender, shall be, or be construed to be, an affirmation
by Lender of any tenancy, Lease or option, or an assumption of
liability under, or the subordination of the lien or charge of this
Deed of Trust to any such tenancy, Lease or option. Borrower hereby
agrees that, in the event Lender exercises its rights as provided
for in this paragraph or in the Assignment of Leases, Borrower
waives any right to compensation for the use of Borrower's
furniture, furnishings or equipment in the Premises for the period
such assignment of rents or receivership is in effect, it being
understood that the Rents derived from the use of any such items
shall be applied to Borrower's obligations hereunder as above
provided.
20. All rights and remedies granted to Trustee or Lender in the Loan
Documents shall be in addition to and not in limitation of any
rights and remedies to which it is entitled in equity, at law or by
statute, and the invalidity of any right or remedy herein provided
by reason of its conflict with applicable law or statute shall not
affect any other valid right or remedy afforded to Trustee or
Lender. No waiver of any default or Event of Default under any of
the Loan Documents shall at any time thereafter be held to be a
waiver of any rights of the Trustee or Lender hereunder, nor shall
any waiver of a prior Event of Default or default operate to waive
any subsequent Event of Default or default. All remedies provided
for in the Loan Documents are cumulative and may, at the election of
Lender, be exercised alternatively, successively or concurrently. No
act of Trustee or Lender shall be construed as an election to
proceed under any one provision herein to the exclusion of any other
provision or to proceed against one portion of the Premises to the
exclusion of any other portion. Time is of the essence under this
Deed of Trust and the Loan Documents.
21. By accepting payment of any sum secured hereby after its due date,
Lender does not waive its right either to require prompt payment
when due of all other sums or
30
installments so secured or to declare a default for failure to pay
such other sums or installments.
22. The usury provisions of paragraph 6 of the Note and the limitation
of recourse liability provisions of paragraph 9 of the Note are
fully incorporated herein by reference as if the same were
specifically stated here.
23. In the event one or more provisions of the Loan Documents shall be
held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provision hereof, and the Loan Documents shall be construed as
if any such provision had never been contained herein.
24. If the payment of the Indebtedness secured hereby or of any part
thereof shall be extended or varied, or if any part of the security
be released, all persons now or at any time hereafter liable
therefor, or interested in said Premises, shall be held to assent to
such extension, variation or release, and their liability and the
lien and all provisions hereof shall continue in full force, the
right of recourse against all such persons being expressly reserved
by Lender notwithstanding such variation or release.
25. Upon payment in full of the principal sum, interest and other
Indebtedness secured by the Loan Documents, these presents shall be
null and void, and Trustee shall release this Deed of Trust and the
lien hereof by proper instrument executed in recordable form.
26. (a) Borrower hereby grants to Lender and its respective agents,
attorneys, employees, consultants, contractors and assigns an
irrevocable license and authorization to enter upon and
inspect the Premises and all facilities located thereon at
reasonable times, subject to the inspection rights provisions
afforded to Borrower under the Leases. Lender shall make
reasonable efforts to ensure that the operations of the
tenants are not disrupted.
(b) In connection with any sale or conveyance of this Deed of
Trust, Borrower grants to Lender and its respective agents,
attorneys, employees, consultants, contractors and assigns an
irrevocable license and authorization to conduct, at Lender's
expense, a Phase I environmental audit of the Premises,
subject to the inspection rights provisions afforded to
Borrower under the Leases.
(c) In the event there has been an Event of Default or in the
event Lender has formed a reasonable belief, based on its
inspection of the Premises or other factors known to it, that
Hazardous Materials may be present on the
31
Premises, then Borrower grants to Lender and its respective
agents, attorneys, employees, consultants, contractors and
assigns an irrevocable license and authorization to conduct,
at Borrower's expense using Engineering Consulting Services,
Ltd. or the firm of Borrower's choice, subject to Lender's
reasonable approval, environmental tests of the Premises,
including without limitation, a Phase I environmental audit,
subsurface testing, soil and ground water testing, and other
tests which may physically invade the Premises or facilities
(the "TESTS"). The scope of the Tests shall be such as
Lender, in its sole discretion, determines is necessary to
(i) investigate the condition of the Premises, (ii) protect
the security interests created under this Deed of Trust, or
(iii) determine compliance with Environmental Laws, the
provisions of the Loan Documents and the Environmental
Indemnity and other matters relating thereto. Lender shall
make reasonable efforts to ensure that the operations of the
tenants are not disrupted.
(d) Provided no Event of Default has occurred, Lender will
provide Borrower with reasonable notice of Lender's intent to
enter, inspect and conduct the Tests provided for in this
paragraph. In addition, Lender shall conduct such inspections
and Tests during normal business hours and use reasonable
efforts to minimize disruption of the lessees' business
operations.
The foregoing licenses and authorizations are intended to be
a means of protection of Lender's security interest in the
Premises and not as participation in the management of the
Premises.
27. Within 15 days after any written request by any party to this Deed
of Trust, the requested party shall certify, by a written statement
duly acknowledged, the amount of principal, interest and other
Indebtedness then owing on the Note, the terms of payment, Maturity
Date and the date to which interest has been paid. Borrower shall
further certify whether any defaults, offsets or defenses exist
against the Indebtedness secured hereby. Borrower shall also furnish
to Lender, within 30 days of its request therefor, tenant estoppel
letters from such tenants of the Premises as Lender may reasonably
require; which Lender shall not request more than one (1) time per
annum.
28. (a) Borrower shall furnish to Lender within 90 days after the end of
each fiscal year of Borrower, a detailed and analytical
financial report prepared in accordance with generally accepted
accounting principles consistently applied, certified in a
manner and otherwise in form acceptable to Lender covering the
full and complete operation of the Premises, including without
limitation: (i) income and expense statements, and (ii) a report
of the leasing status of the Premises as of the end of such
period, identifying the lessee, square footage leased, rental
32
amount, base rental increases, rental concessions and/or rental
deferments, if any, and commencement and expiration dates under
each Lease of the Premises and a listing of sales volumes
attained by lessees of the Premises under percentage leases for
the immediately preceding year, and (iii) within 15 days after
written request by Lender, an aged accounts receivable report
and an annual budget. Such reports shall be prepared by an
accountant who may be an employee of Borrower, or of an
affiliate of Borrower, acceptable to Lender. In addition to the
reports referred to herein, Borrower shall promptly supply any
additional information or records relating to the Premises or
its operation as Lender may from time to time reasonably
request.
(b) Within 15 days after any written request by Lender, Borrower
shall furnish to Lender, for the most recently completed fiscal
quarter of Borrower, the reports specified in (i) and (ii)
above.
(c) Within 15 days after any written request by Lender, Borrower
shall furnish to Lender, for the most recently completed fiscal
year, a combined or consolidated federal income tax return filed
by IWRRET. Said information shall be subject to Lender's review.
29. Each notice, consent, request, report or other communication under
this Deed of Trust or any other Loan Document (each, a "NOTICE"),
which any party hereto may desire or be required to give to the
other shall be deemed to be an adequate and sufficient notice if
given in writing and service is made by either (i) registered or
certified mail, postage prepaid, in which case notice shall be
deemed to have been received three (3) business days following
deposit to U.S. mail; or (ii) nationally recognized overnight air
courier, next day delivery, prepaid, in which case such notice shall
be deemed to have been received one (1) business day following
delivery to such nationally recognized overnight air courier. All
Notices shall be addressed to Borrower at its address given on the
first page hereof, or to Lender at c/o Principal Real Estate
Investors, LLC, 000 Xxxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000-0000, Attn:
Commercial Real Estate Servicing, Loan No. 753948, or to such other
place as any party may by written notice to the other parties
designate as a place for service of notice. Borrower shall not be
permitted to designate more than one place for service of Notice
concurrently.
30. Lender, from time to time, may substitute another Trustee in place
of the Trustee named herein, to execute the trusts hereby created;
and upon such appointment, and without conveyance to the successor
trustee, the successor trustee shall be vested with all the title,
interest, powers, duties and trusts in the Premises hereby vested in
or conferred upon Trustee herein named. Each such appointment and
substitution shall be made by written instrument executed by the
Lender containing reference to this Deed of Trust sufficient to
identify it, which instrument, when recorded in the office of the
County Recorder of the county or
33
counties (or, in the case of the City of St. Louis, the Recorder of
Deeds for such city) in which the Premises is situated, shall be
conclusive proof of proper appointment of the successor trustee. The
recital or statement, in any instrument executed by Trustee in
pursuance of any of said trusts, of the due authorization of any
agent of the Trustee executing the same shall for all purposes be
conclusive proof of such authorization. In the event any foreclosure
advertisement is running or has run at the time of an appointment of
a substitute Trustee, the substitute Trustee may to the extent
permitted by applicable law, consummate the advertised sale without
the necessity of republishing such advertisement.
31. Trustee at any time, at Trustee's option, may commence and maintain
suit in any court of competent jurisdiction and obtain the aid and
direction of said court in the execution by it of the trusts or any
of them, herein expressed or contained, and, in such suit, may
obtain the orders or decrees, interlocutory or final of said court
directing the execution of said trusts, and confirming and approving
Trustee's acts, or any of them, or any sales or conveyances made by
Trustee, and adjudging the validity thereof, and directing that the
purchasers of the property sold and conveyed be let into immediate
possession thereof, and providing for orders of court or other
process requiring the Sheriff of the county in which said property
is situated to place and maintain said purchasers in quiet and
peaceable possession of the property so purchased by them, and the
whole thereof.
32. Borrower has had the opportunity to fully negotiate the terms hereof
and modify the draftsmanship of the Loan Documents and the
Environmental Indemnity. Therefore, the terms of the Loan Documents
and the Environmental Indemnity shall be construed and interpreted
without any presumption, inference, or rule requiring construction
or interpretation of any provision of the Loan Documents and the
Environmental Indemnity against the interest of the party causing
the Loan Documents and the Environmental Indemnity or any portion of
it to be drafted. Borrower is entering into the Loan Documents and
the Environmental Indemnity freely and voluntarily without any
duress, economic or otherwise.
33. Borrower, forthwith upon request, at any and all times hereafter, at
the expense of Borrower, will cause to be made, executed,
acknowledged and delivered to Trustee, any and every deed or
assurance in law which Trustee or counsel of Trustee shall
reasonably advise or require for the more sure, effectual and
satisfactory granting and confirming of said Premises unto Trustee.
34. The Trustee may resign at any time upon giving written notice to
Borrower and Lender. Trustee shall not be liable or responsible for
its acts or omissions hereunder, except for Trustee's own gross
negligence or willful default, or be liable or responsible for any
acts or omissions of any agent, attorneys or employee by him
employed hereunder, if selected with reasonable care.
34
35. Trustee accepts this trust when this Deed of Trust executed and
acknowledged is made a public record as provided by law. Trustee is
not obligated to notify any party hereto of pending sale under any
other deed of trust or of any action or proceeding in which
Borrower, Lender, or Trustee shall be a party unless brought by
Trustee.
Trustee hereby lets the Premises to Borrower and assigns until this
Deed of Trust is released and satisfied or until default is made
under the covenants and agreements hereof, on the following terms:
Borrower and all persons claiming or possessing the Premises or any
part thereof shall pay rent therefore during the term at one cent
(1CENTS) per month payable upon demand, and shall and will surrender
peaceful possession of the Premises, and every part thereof, to
Trustee immediately on such default and without notice or demand
therefore, and thereupon Trustee shall be entitled to the Rents,
revenues, incomes and profits therefrom as hereinabove provided;
provided nothing in this Deed of Trust shall be construed to prevent
Lender from having and taking every legal means to enforce payment
of the Note, and each installment thereof, without having first
enforced this Deed of Trust.
36. This Deed of Trust and all provisions hereof shall inure to the
benefit of the heirs, successors and assigns of Lender and shall
bind the heirs and permitted successors and assigns of Borrower.
37. This Deed of Trust shall be governed by, and construed in accordance
with, the laws of the state of Missouri, without regard to its
conflicts of law principles.
38. As used herein, the term "DEFAULT RATE" means a rate equal to the
lesser of (i) four percent (4%) per annum above the then applicable
interest rate payable under the Note or (ii) the maximum rate
allowed by applicable law.
39. BORROWER AND LENDER EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE, TO THE EXTENT PERMITTED BY LAW, TRIAL BY JURY IN ANY ACTIONS
BROUGHT BY BORROWER, TRUSTEE OR LENDER IN CONNECTION WITH THIS DEED
OF TRUST, ANY OF THE LOAN DOCUMENTS, THE INDEBTEDNESS SECURED
HEREBY, OR ANY OTHER STATEMENTS OR ACTIONS OF LENDER.
40. This Deed of Trust and the Indebtedness secured hereby is for the
sole purpose of conducting or acquiring a lawful business,
professional or commercial activity or for the acquisition or
management of real or personal property as a commercial investment,
and all proceeds of such Indebtedness shall be used for said
business or commercial investment purpose. Such proceeds will not be
used for the purchase of any security within the meaning of the
Securities Exchange Act of 1934, as amended, or any regulation
issued pursuant thereto, including without
35
limitation, Regulations U, T and X of the Board of Governors of the
Federal Reserve System. This is not a purchase money deed of trust
where a seller is providing financing to a buyer for the payment of
all or any portion of the purchase price and the Premises secured
hereby is not a residence or homestead or used for mining, grazing,
agriculture, timber or farming purposes.
41. Unless Lender shall otherwise direct in writing, Borrower shall
appear in and defend all actions or proceedings purporting to affect
the security hereunder, or any right or power of the Lender,
excluding any Federal regulatory proceedings against Lender that are
not instituted because of any act or omission by Borrower, any
Interest Owner or which result from the Premises. The Lender shall
have the right to appear in such actions or proceedings. Borrower
shall save Lender harmless from all reasonable costs and expenses,
including but not limited to, reasonable attorneys' fees and costs
and costs of a title search, continuation of abstract and
preparation of survey incurred by reason of any action, suit,
proceeding, hearing, motion or application before any court or
administrative body in and to which Lender may be or become a party
by reason hereof, excluding any Federal regulatory proceedings
against Lender that are not instituted because of any act or
omission by Borrower, any Interest Owner or which result from the
Premises. Such proceedings shall include but not be limited to
condemnation, bankruptcy, probate and administration proceedings, as
well as any other action, suit, proceeding, right, motion or
application wherein proof of claim is by law required to be filed or
in which it becomes necessary to defend or uphold the terms of this
Deed of Trust or the Loan Documents or otherwise purporting to
affect the security hereof or the rights or powers of Lender. All
money paid or expended by Lender in that regard, together with
interest thereon from date of such payment at the Default Rate shall
be additional Indebtedness secured hereby and shall be immediately
due and payable by Borrower without notice.
42. Upon the occurrence of an Event of Default, unless the same has been
specifically waived in writing, all Rents collected or received by
Borrower shall be accepted and held for Lender in trust and shall
not be commingled with the funds and property of Borrower, but shall
be promptly paid over to Lender.
43. If more than one, all obligations and agreements of Borrower are
joint and several.
44. This Deed of Trust may be executed in counterparts, each of which
shall be deemed an original; and such counterparts when taken
together shall constitute but one agreement.
36
45. THE FOLLOWING NOTICE IS INCLUDED IN COMPLIANCE WITH MO. REV. STAT.
SECTION 432.045: ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY,
EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT
INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE.
TO PROTECT BORROWER AND LENDER FROM MISUNDERSTANDING OR
DISAPPOINTMENT, ANY AGREEMENTS REACHED BY SUCH PARTIES COVERING SUCH
MATTERS ARE CONTAINED IN THE LOAN DOCUMENTS, WHICH COLLECTIVELY ARE
THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE
PARTIES HERETO, EXCEPT AS THEY MAY LATER AGREE IN WRITING TO MODIFY
SUCH DOCUMENTS.
REMAINDER OF PAGE INTENTIONALLY BLANK
(Signatures on next page)
37
IN WITNESS WHEREOF, Borrower has caused this Deed of Trust, Security
Agreement and Assignment of Rents to be duly executed and delivered as of the
date first hereinabove written.
INLAND WESTERN KANSAS CITY, L.L.C., a
Delaware limited liability company
By: INLAND WESTERN RETAIL REAL
ESTATE TRUST, INC., a Maryland
corporation, Member
By: /s/ Xxxxxxx Xxxxxx
------------------------
Name: Xxxxxxx Xxxxxx
-------------------
Title: Asst. Secretary
------------------
STATE OF ILLINOIS )
)
COUNTY OF DuPage )
On this 29th day of June, in the year 2004, before me, Xxxxxxxx X.
Xxxxxxxx, a Notary Public in and for said state, personally appeared Xxxxxxx
Xxxxxx, Asst. Secretary of Inland Western Retail Real Estate Trust, Inc., a
Maryland corporation, Member of Inland Western Kansas City, L.L.C., a Delaware
limited liability company, known to me to be the person who executed the within
Deed of Trust on behalf of said corporation as Member of Inland Western Kansas
City, L.L.C., and acknowledged to me that he/she executed the same for the
purposes therein stated.
/s/ Xxxxxxxx X. Xxxxxxxx
----------------------------------------------
Notary Public in and for said County and State
My Commission Expires: ----------------------------------------------
Typed or Printed Name of Notary Public
---------------------
RECORDING REQUESTED BY AND OFFICIAL SEAL
WHEN RECORDED RETURN TO: XXXXXXXX X XXXXXXXX
NOTARY PUBLIC-STATE OF ILLINOIS
MY COMMISSION EXPIRES: 03-12-07
XXXXXXXX & XXXXXX L.L.P.
0000 XXXXXXX XXXXXX, XXXXX 0000
XXXXXX, XXXXX 00000
ATTENTION: XXXXXX X. XXXXXX
38
EXHIBIT A
(Legal Description)
Address: 0000-0000 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx
Tax Parcel Nos.:
Lot 1 19-3.0-07-200-000-001-010
Xxx 0 00-0.0-00-000-000-000-000
Xxx X0 00-0.0-00-000-000-000-000
XXXXX 0:
All of Lots 1 and 2 and Tract A1, THE SHOPS AT BOARDWALK, FIRST PLAT, a
subdivision in Kansas City, Platte County, Missouri, according to the plat
thereof recorded in Book 19, Page 325, Records of Platte County, Missouri.
TRACT 2:
Easement estate appurtenant to Tract 1 as created in Declaration of Easements
With Covenants and Restrictions Affecting Land ("ECR") Xxxxx Commons Shopping
Center Kansas City, Missouri dated February 25, 2000, recorded in Book 0922,
Page 0087, Records of Platte County, Missouri, over and across the real property
more particularly described therein.
1
EXHIBIT B
Permitted Encumbrances
Loan No. 753948
(Inland Western Kansas City, L.L.C. - Boardwalk)
1. Taxes for the year 2004 and subsequent years.
2. Rights of tenants, as tenants only, under recorded tenant leases more
particularly described in Exhibit B to the Assignment of Leases and Rents
of even date herewith executed by Borrower in favor of Lender.
3. Building setback lines; landscape easements; storm sewer easements; storm
line easements; and water line easements as established by the recorded
plat of THE SHOPS AT BOARDWALK, FIRST PLAT, RECORDED September 23, 2002, as
Document No. 0018717, in Plat Book 19 at Page 325.
4. The dedication of the plat of THE SHOPS AT BOARDWALK, FIRST PLAT recorded
September 23, 2002, as Document No. 0018717, in Plat Book 19 at Page 325
states "Vehicular access to 1-29 is not permitted from Lot 2. Vehicular
access to Missouri Hwy. 152 is not permitted from Xxx 0, 0 xxx Xxxxx X0".
"Also subject property is located within the Kansas City International
Airport Heights Zone Map; Document No. 138-27, dated March 1982 and is
within the transitional surface and ILS approach surface. The height of any
structure shall not exceed elevation 1100 to 1140 (USGS Datum)".
5. Lack of direct access to Xxxxxxx Xxxxx 000 and 1-29 from the land, such
right of access having been granted to the State of Missouri, acting by and
through the State Highway Commission of Missouri by the deed recorded July
28, 1977, as Document No. 25983, in Book 511 at Page 817. Terms and
provisions of the Maintenance Agreement between the State Highway
Commission of Missouri and the City of Kansas City, Missouri recorded April
21, 1975, as Document No. 10351, in Book 463 at Page 489.
6. Easement for drainage ditches as contained in the deed to the State of
Missouri, acting by and through the State Highway Commission of Missouri,
recorded July 28, 1977, as Document No. 25983, in Book 511 at Page 817.
7. Aviation and Noise Easement granted to Kansas City, Missouri by the
instrument recorded November 19, 1999, as Document No. 0019924, in Book 917
at Page 741.
8. Terms and provisions of the Covenant For Maintenance of Storm Water
Detention Facility with the City of Kansas City, Missouri recorded February
18, 2000, as Document No. 0002109, in Book 921 at Page 842 and amended by
the instrument recorded September 23, 2002, as Document No. 0018715, in
Book 980 at Page 686.
9. Terms and provisions of the Cooperative Agreement For Public Improvement
For Signalization recorded February 18, 2000, as Document No. 0002110, in
Book 921 at Page 843.
10. Terms and provisions of the Deferral Agreement For the Public Improvements
For N. Ambassador Drive, N. Boardwalk Drive and X.X. Xxxxx Road, recorded
February 18, 2000, as Document No. 0002111, in Book 921 at Page 844.
11. Easement granted to Kansas City Power & Light Company by the instrument
recorded May 15, 2001, as Document No. 0007989, in Book 945 at Page 717.
12. Deed to the State of Missouri, acting by and through the Missouri Highways
and Transportation Commission for additional right-of-way for Missouri
Route 152 and Ambassador Drive, recorded March 12, 2002, as Document No.
0004518, in Book 966 at Page 539, which also includes, all of abutter's
rights of direct access onto Missouri Route 152.
13. Deed to the City of Kansas City for additional right-of-way for N.
Ambassador Drive recorded October 3, 2002, as Document No. 0019854, in Book
981 at Page 823 together with easements on the abutting property for the
location, construction and maintenance of an embankment or for sloping the
sides of cuts back.
14. Temporary Easement granted to the City of Kansas City by the instrument
recorded October 3, 2002, as Document No. 0019855, in Book 981 at Page 824.
15. Sanitary Sewer Easement granted to Kansas City Area Transportation
Authority by the instrument recorded December 5, 2002, as Document No.
0025721, in Book 987 at Page 671.
16. Terms and provisions of the Driveway Easement Agreement dated November 1,
2002, between Red Boardwalk, LLC, a Missouri limited liability company and
Redbarry, L.L.C., a Missouri limited liability company and the Kansas City
Area Transportation Authority recorded December 5, 2002, as Document No.
0025722, in Book 987 at Page 672.
17. Easement granted to Kansas City Power & Light Company by the instrument
recorded March 5, 2003, as Document No. 0006232, in Book 996 at Page 150.
18. Grant of Right of Way granted to Missouri Gas Energy, a Division of
Southern Union Company by the instrument recorded May 13, 2003, as Document
No. 0013147, in Book 1003 at Page 48.
19. Declaration of Easements with Covenants and Restrictions recorded February
25, 2000, as Document No. 0002355, in Book 922 at Page 87.
2
20. Terms and provisions of the restrictions as contained in the warranty deed
recorded July 26, 2002, as Document No. 0014262, in Book 976 at Page 245
regarding Tax Increment Financing Obligations, etc.
21. Terms and provisions of the restrictions as contained in the warranty deed
recorded November 1, 2002, as Document No. 0022771, in Book 984 at Page
728, regarding Tax Increment Financing Obligations, etc.
22. Subject property lies within the KCI Corridor TIF Redevelopment Area and
may be subject to assessments, by reason thereof.
23. Terms and provisions of the Memorandum of Lease dated March 19, 2003, filed
March 26, 2003, as Document No. 0008201, in Book 998 at Page 117, made by
Red Boardwalk, LLC, a Missouri limited liability company, lessor, to The
Birch Pond Group, Inc., a Massachusetts corporation, lessee.
24. Terms and provisions of the Memorandum of Lease dated May 23, 2003,
recorded June 11, 2003, as Document No. 0015934, in Book 1005 at Page 828,
made by Red Boardwalk, LLC, a Missouri limited liability company and
Redbarry, L.L.C., a Missouri limited liability company, lessors, to
Maurices Incorporated, a Delaware corporation, lessee.
25. Terms and provisions of the Memorandum of Lease dated July 28, 1003,
recorded July 31, 2003, and Document No. 0021464, in Book 1011 at Page 356,
made by Red Boardwalk, LLC, a Missouri limited liability company and
Redbarry, L.L.C., a Missouri limited liability company, lessors to Noggin
Noodle, LLC, a Missouri limited liability company, lessee.
26. Terms and provisions of the Memorandum of Lease dated September 8, 2003,
recorded September 26, 2003, as Document No. 0027677, in Book 1017 at Page
540, made by Red Boardwalk, LLC, a Missouri limited liability company and
Redbarry, L.L.C., a Missouri limited liability company, lessors to Select
Comfort Retail Corporation, a Minnesota corporation, lessee.
27. Terms and provisions of the Memorandum of Lease dated November 6, 2002,
recorded October 7, 2003, as Document No. 0028598, in Book 1018 at page
450, made by Red boardwalk, LLC, a Missouri limited liability company,
lessor to Red Star North Kansas City, Inc., an Illinois corporation,
lessee.
28. Terms and provisions of the Memorandum of Lease dated December 30, 2002,
recorded October 7, 2003, as Document No. 0028596, in Book 1018 at Page
448, made by Red boardwalk, LLC, a Missouri limited liability company,
lessor, to Coldwater Creek Inc., a Delaware corporation, lessee.
29. Terms and provisions of the Memorandum of Lease dated October 9, 2002,
recorded October 7, 2003, as Document No. 0028597, in Book 1018 at Page
449, made by Red
3
Boardwalk, LLC, a Missouri limited liability company, lessor, to Nextel
Retail Stores, Inc., a Delaware corporation, lessee.
30. Terms and provisions of the Memorandum of Lease dated November 3, 2003,
recorded November 6, 2003, as Document No. 0031083, in Book 1020 at Page
931, made by Red Boardwalk, LLC, a Missouri limited liability company and
Redbarry, L.L.C., a Missouri limited liability company, lessors to Tomsten,
Inc., a Minnesota corporation, lessee.
31. Terms and provisions of the Memorandum of Lease dated November 25, 2003,
recorded December 10, 2003, as Document No. 0033417, in Book 1023 at Page
245, made by Red Boardwalk, LLC, a Missouri limited liability company and
Redbarry, L.L.C., a Missouri limited liability company, lessors to Changs'
Boardwalk Inc., a Missouri corporation, lessee.
4
