Recording requested by:
HABIB BANK AG ZURICH
When recorded, mail to:
HABIB BANK AG ZURICH
000 Xxxx Xxxxx Xxxxxx, XX00
Xxx Xxxxxxx, Xxxxxxxxxx 00000
DEED OF TRUST, SECURITY AGREEMENT, AND FIXTURE FILING
WITH ASSIGNMENT OF RENTS AND AGREEMENTS
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS
Section 1.1. Certain Defined Terms
ARTICLE 2
WARRANTY OF TITLE
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Section 3.1. Status of the Loan Parties
Section 3.2. Validity of Loan Documents
Section 3.3. Financial Statements
Section 3.4. Use of Proceeds of Loan
Section 3.5. Other Arrangements
Section 3.6. Other Information
Section 3.7. Litigation
Section 3.8. Other Warranties
Section 3.9. Taxes
Section 3.10. Compliance with Laws
ARTICLE 4
AFFIRMATIVE COVENANTS
Section 4.1. Obligations of Trustor
Section 4.2. Insurance
Section 4.3. Maintenance, Waste, and Repair
Section 4.4. Imposition; Impounds
Section 4.5. Compliance with Law
Section 4.6. Books and Records
Section 4.7. Further Assurances
Section 4.8. Statement by Trustor
Section 4.9. Indemnity
Section 4.10. Reimbursement
Section 4.11. Litigation
Section 4.12. Tax Receipts
Section 4.13. Duplicate Plans
Section 4.14. Additional Information
Section 4.15. Right of Entry
ARTICLE 5
NEGATIVE COVENANTS
Section 5.1. Restrictive Uses
Section 5.2. Other Financing
Section 5.3. Transferability
Section 5.4. Replacement of Fixtures and Personalty
ARTICLE 6
ENVIRONMENTAL PROVISIONS
Section 6.1. Representations and Warranties
Section 6.2. Covenants
Section 6.3. Inspection and Receivership
Section 6.4. Release and Indemnity
Section 6.6. Effect of Site Assessment
ARTICLE 7
CASUALTIES AND CONDEMNATION
Section 7.1. Casualties
Section 7.2. Condemnation
ARTICLE 8
EVENTS OF DEFAULT AND REMEDIES OF BENEFICIARY
Section 8.1. Events of Default
Section 8.2. Power of Sale
Section 8.3. Proof of Default
Section 8.4. Protection of Security
Section 8.5. Receiver
Section 8.6. Curing the Defaults
Section 8.7. Inspection Rights
Section 8.8. Judgment on Environmental
Section 8.9. Waive Lien
Section 8.10. Exception to Nonrecourse
Section 8.11. Remedies Cumulative
ARTICLE 9
SECURITY AGREEMENT
Section 9.1. Grant of Security Interest
Section 9.2. Remedies
Section 9.3. Expenses
Section 9.4. Fixture Filing
Section 9.5. Assignment of Agreements
ARTICLE 10
ASSIGNMENT OF LEASES AND RENTS
Section 10.1. Assignment
Section 10.2. License
Section 10.3. Effect of Assignment
Section 10.4. Leasing Covenants
Section 10.5. Application of Rents
Section 10.6. Estoppel Certificates
Section 10.7. Remedies
Section 10.8. Definitions
ARTICLE 11
MISCELLANEOUS
Section 11.1. Successor Trustee
Section 11.2. Change of Law
Section 11.3. No Waiver
Section 11.4. Abandonment
Section 11.5. Notices
Section 11.6. Survival
Section 11.7. Severability
Section 11.8. References to Foreclosure
Section 11.9. Joinder of Foreclosure
Section 11.10. Rights of Beneficiary and Trustee
Section 11.11. Copies
Section 11.12. ERISA Compliance
Section 11.13. Subordination
Section 11.14. No Merger
Section 11.15. Inspection of Property
Section 11.16. Performance by Trustor
Section 11.17. Personalty Security Instruments
Section 11.18. Suits to Protect Property
Section 11.19. Junior Liens
Section 11.20. Further Advances
Section 11.21. Charges for Statements
Section 11.22. Entire Agreement
Section 11.23. Incorporation
Section 11.24. Waiver of Marshaling Rights
Section 11.25. Acceptance of Trust; Powers and Duties of Trustee
Section 11.26. Releases, Extensions, Modifications, and
Additional Security
Section 11.27. Reconveyance
Section 11.28. Subrogation
Section 11.29. Obligations of Trustor, Joint and Several
Section 11.30. Recourse to Separate Property
Section 11.31. Rules of Construction
Section 11.32. Successors in Interest
Section 11.33. No Offset
Section 11.34. Governing Law
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This Deed of Trust, Security Agreement, and Fixture Filing with Assignment
of Rents and Agreements (this "Deed of Trust") is made as of October __, 1997,
by EN POINTE TECHNOLOGIES, INC., a Delaware corporation ("Trustor"), to CHICAGO
TITLE INSURANCE COMPANY, a California corporation ("Trustee"), for the benefit
of HABIB BANK AG ZURICH ("Beneficiary").
Witnesseth:
Trustor does irrevocably grant, transfer, and assign to Trustee, in trust,
with power of sale, all Trustor's right, title, and interest now owned or later
acquired in the real property ("Land") located in Ontario, California, commonly
known as 0000 Xxxxxxx Xxxxxx, Xxxx "X", and more particularly described in
attached Exhibit A, incorporated by reference (Trustor agrees that any greater
title to the Land later acquired during the term of this Deed of Trust will be
subject to this Deed of Trust), together with the rents, issues, and profits,
subject however, to the right, power, and authority granted and conferred on
Trustor in this Deed of Trust to collect and apply the rents, issues, and
profits; and Trustor also irrevocably grants, transfers, and assigns to Trustee,
in trust, with power of sale, all of Trustor's right, title, and interest now
owned or later acquired to the following property (including the rights or
interests pertaining to the property) located at the Property:
(1) all buildings ("Buildings") and improvements now or later on the Land,
and all appurtenances, easements, water and water rights, and pumps and pumping
plants, and all shares of stock evidencing these; all machinery, equipment,
appliances, and fixtures for generating or distributing air, water, heat,
electricity, light, fuel, or refrigeration or for ventilating or sanitary
purposes or for the exclusion of vermin or insects or for the removal of dust,
refuse, or garbage; all wall safes, built-in furniture, and installations,
shelving, lockers, partitions, doorstops, vaults, elevators, dumbwaiters,
awnings, window shades, venetian blinds, light fixtures, fire hoses and brackets
and boxes for them, fire sprinklers, alarm systems, draperies, drapery rods and
brackets, screens, linoleum, carpets, furniture, furnishings, fixtures,
plumbing, laundry tubs and trays, iceboxes, refrigerators, heating units,
stoves, water heaters, incinerators, and communication systems and installations
for which any Building is specially designed; all of these items, whether now or
later installed, being declared to be for all purposes of this Deed of Trust a
part of the Land, the specific enumerations in this Deed of Trust not excluding
the general;
(2) the rents, issues, profits, and proceeds; and
(3) the Property to the extent not included in clauses (1) and (2) above.
For the purpose of securing, in the order of priority that Beneficiary
determines
(1) payment of the indebtedness evidenced by a note of Trustor of the same
date as this Deed of Trust in the principal amount of Four Million Dollars
($4,000,000.00) ("Note"), payable to Beneficiary or to order, and all
extensions, modifications, or renewals of that Note;
(2) payment of the interest on that indebtedness according to the terms of
the Note;
(3) payment of all other sums (with interest as provided in this Deed of
Trust) becoming due and payable to Beneficiary or Trustee pursuant to the terms
of this Deed of Trust;
(4) performance of every obligation contained in this Deed of Trust, the
Note, any instrument now or later evidencing or securing any indebtedness
secured by this Deed of Trust, and any agreements, supplemental agreements, or
other instruments of security executed by Trustor as of the same date of this
Deed of Trust or at any time subsequent to the date of this Deed of Trust for
the purpose of further securing any indebtedness secured by this Deed of Trust,
or any part of it, or for the purpose of supplementing or amending this Deed of
Trust or any instrument secured by this Deed of Trust; and
(5) payment of all other obligations owed by Trustor to Beneficiary that by
their terms recite that they are secured by this Deed of Trust, including those
incurred as primary obligor or as guarantor.
ARTICLE 1.
DEFINITIONS
Section 1.1. Certain Defined Terms.
As used in this Deed of Trust the following terms will have the following
meanings:
Assignment of Leases: The Assignment of Lessor's Interest in Leases and
Seller's Interest in Contracts for Sale dated as of the same date as this Deed
of Trust executed by Trustor in favor of Beneficiary.
Buildings: The Buildings as defined above in this Deed of Trust.
Collateral: The Collateral as defined in Section 9.1 of this Deed of Trust.
Default Rate: A rate of interest per annum equal to three percent (3%) per
annum above the Loan Rate.
Fixtures: All fixtures located on the Improvements (as defined in this Deed
of Trust) or now or later installed in, or used in connection with, any of the
Improvements, including, but not limited to, all partitions, screens, awnings,
motors, engines, boilers, furnaces, pipes, plumbing, elevators, cleaning and
sprinkler systems, fire-extinguishing apparatus and equipment, water tanks,
heating, ventilating, air-conditioning and air-cooling equipment, built-in
refrigerators, and gas and electric machinery, appurtenances, and equipment,
whether or not permanently affixed to the Land or the Improvements.
Hazardous Substance:
(a) any oil, flammable substance, explosive, radioactive material,
hazardous waste or substance, toxic waste or substance, or any other waste,
material, or pollutant that:
(i) poses a hazard to the Property or to persons on the Property,
or
(ii) causes the Property to be in violation of any Hazardous
Substance Law;
(b) asbestos in any form;
(c) urea formaldehyde foam insulation;
(d) transformers or other equipment that contain dielectric fluid
containing levels of polychlorinated biphenyls;
(e) radon gas;
(f) any chemical, material, or substance defined as or included in the
definition of hazardous substance, hazardous substances, hazardous wastes,
hazardous materials, extremely hazardous waste, restricted hazardous waste, or
toxic substances or words of similar import under any applicable local, state,
or federal law or under the regulations adopted or publications promulgated
pursuant to those laws, including, but not limited to, any Hazardous Substance
Law, Code of Civil Procedure Section 564, as amended from time to time, Code of
Civil Procedure Section 726.5, as amended from time to time, Code of Civil
Procedure Section 736, as amended from time to time, and Civil Code Section
2929.5, as amended from time to time;
(g) any other chemical, material, or substance, exposure to which is
prohibited, limited, or regulated by any governmental authority or which may
pose a hazard to the health and safety of the occupants of the Property or the
owners or occupants of property adjacent to or surrounding the Property, or any
other person coming on the Property or any adjacent property; and
(h) any other chemical, material, or substance that may pose a hazard
to the environment.
Hazardous Substance Claim: Any enforcement, cleanup, removal, remedial, or
other governmental, regulatory, or private actions, agreements, or orders
threatened, instituted, or completed pursuant to any Hazardous Substance Law,
together with all claims made or threatened by any third party against Borrower
or the Property relating to damage, contribution, cost-recovery compensation,
loss, or injury resulting from the presence, release, or discharge of any
Hazardous Substance.
Hazardous Substance Law: Any federal, state, or local law, ordinance,
regulation, or policy relating to the environment, health, and safety, any
Hazardous Substance (including, without limitation, the use, handling,
transportation, production, disposal, discharge, or storage of the substance),
industrial hygiene, soil, groundwater, and indoor and ambient air conditions or
the environmental conditions on the Property, including, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980
[42 USCS Sections 9601 et seq.], as amended from time to time; the Hazardous
Substances Transportation Act [49 USCS Sections 1801 et seq.], as amended from
time to time; the Resource Conservation and Recovery Act [42 USCS Sections 6901
et seq.], as amended from time to time; the Federal Water Pollution Control Act
[33 USCS Sections 1251 et seq.], as amended from time to time; the Hazardous
Substance Account Act [Health and Safety Code Sections 25300 et seq.], as
amended from time to time; the Hazardous Waste Control Law [Health and Safety
Code Sections 25100 et seq.], as amended from time to time; the Medical Waste
Management Act [Health and Safety Code Sections 25015 et seq.], as amended from
time to time; and the Xxxxxx-Cologne Water Quality Control Act [Water Code
Sections 13000 et seq.], as amended from time to time.
Impositions: All real estate and personal property taxes and other taxes
and assessments, water and sewer rates and charges, and all other governmental
charges and any interest or costs or penalties with respect to those charges,
assessments, or taxes, ground rent and charges for any easement or agreement
maintained for the benefit of the Property, general and special, ordinary and
extraordinary, foreseen or unforeseen, of any kind that at any time prior to or
after the execution of the Loan Documents may be assessed, levied, imposed, or
become a lien on the Property or the rent or income received from the Property,
or any use or occupancy of the Property; and any charges, expenses, payments, or
assessments of any nature, if any, that are or may become a lien on the Property
or the rent or income received from the Property.
Improvements: All Buildings, improvements, and appurtenances on the Land,
and all improvements, additions, and replacements of those improvements and
other buildings and improvements, at any time later constructed or placed on the
Land.
Indebtedness: The principal of and interest on, and all other amounts,
payments, and premiums due under, the Note and any extensions or renewals
(including, without limitation, extensions or renewals at a different rate of
interest, regardless of whether evidenced by a new or additional promissory note
or notes), and all other indebtedness of Trustor to Beneficiary under or secured
by the Security Documents (defined in this Deed of Trust), together with all
other sums owed by Trustor to Beneficiary, including those incurred as primary
obligor or as guarantor, that recite that they are secured by the Security
Documents.
Land: The Land as defined in this Deed of Trust.
Leases: All leasehold interests, including subleases and tenancies
following attornment, affecting or covering any portion of the Property.
Loan: The loan secured by this Deed of Trust and evidenced by the Note.
Loan Agreement: The General Credit Agreement of the same date as this Deed
of Trust executed between Trustor and Beneficiary.
Loan Documents: The Note, the Loan Agreement, the Security Documents, and
all other documents evidencing, securing, or relating to the Loan.
Loan Parties: Trustor and any guarantors of the loan or any obligations
under the loan, together with their respective affiliates and their respective
employees, representatives, and agents.
Material Adverse Change: Any material and adverse change in:
(i) the business or properties or condition (financial or otherwise)
of Trustor, or
(ii) the condition or operation of the Property.
Note: The Note as defined in this Deed of Trust.
Obligations: All of the covenants, promises, and other obligations (other
than the Indebtedness):
(i) made or owing by Trustor to or due to Beneficiary under or as set
forth in the Loan Documents, and
(ii) made or owing by Trustor to every other Person, a breach of which
would or may affect Trustor's ownership, development, or operation of the
Property, except any covenants, promises, and other obligations of Trustor to
Beneficiary under the Certification Agreement.
Person: Any natural person, corporation, firm, association, government,
governmental agency, or any other entity, whether acting in an individual,
fiduciary, or other capacity.
Personalty: Trustor's interest in all accounts, contract rights, and
general intangibles (specifically including any insurance proceeds and
condemnation awards) arising out of the ownership, development, or operation of
the Property, and all furniture, furnishings, equipment, machinery, construction
materials and supplies, leasehold interests in personal property, and all other
personal property (other than Fixtures) now or later on the Property, together
with all present and future attachments, accessions, replacements,
substitutions, and additions, and the cash and noncash proceeds.
Property: The Land, the Improvements, the Fixtures, and the Personalty,
together with:
(a) all rights, privileges, tenements, hereditaments, rights-of-way,
easements, and appurtenances of the Land or the Improvements now or later
belonging to the Property, and all right, title, and interest of Trustor in any
streets, ways, alleys, strips, or gores of land adjoining the Land; and
(b) all of Trustor's right, title, and interest in the Land, the
Improvements, the Fixtures, and the Personalty, including any award for any
change of grade of streets affecting the Land, the Improvements, the Fixtures,
or the Personalty.
Receiver: Any trustee, receiver, custodian, fiscal agent, liquidator, or
similar officer.
Release: Any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or disposing into the
environment, including continuing migration, of Hazardous Substances that goes
into the soil, surface water, or groundwater of the Property, whether or not
caused by, contributed to, permitted by, acquiesced to, or known to Trustor.
Security Documents: This Deed of Trust, the Assignment of Leases and all
other documents now or later securing any part of the payment of the
Indebtedness or the observance or performance of the Obligations.
Title Policy: The title insurance policy issued by Commonwealth Land Title
Insurance Company to Beneficiary.
ARTICLE 2.
WARRANTY OF TITLE
Trustor warrants that:
(a) Trustor is the lawful owner of the Property,
(b) Trustor will maintain and preserve the lien of this Deed of Trust
until the Indebtedness has been paid in full,
(c) Trustor has good, right, and lawful authority to grant the
Property as provided in this Deed of Trust, and
(d) Trustor will forever warrant and defend the grant made in this
Deed of Trust against all claims and demands, except as are specifically set
forth in this Deed of Trust.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES
Trustor represents and warrants to Beneficiary that as of the date of this
Deed of Trust:
Section 3.1. Status of the Loan Parties.
(a) Trustor has the requisite power and authority to own and manage its
properties, to carry on its business as now being conducted, and to own,
develop, and operate the Property.
(b) Trustor is qualified to do business in every jurisdiction in which the
nature of its business or its properties makes qualification necessary.
(c) Trustor is in compliance with all laws, regulations, ordinances, and
orders of public authorities applicable to it.
Section 3.2. Validity of Loan Documents.
(a) The execution, delivery, and performance by the Loan Parties of the
Loan Documents and the borrowings evidenced by the Note:
(i) are within the power of the Loan Parties,
(ii) have been duly authorized by all requisite corporate or
partnership actions, as appropriate,
(iii) have received all necessary governmental approval, and
(iv) will not violate any provision of law, any order of any court or
agency of government, the charter documents of any Loan Party, or any indenture,
agreement, or any other instrument to which any Loan Party is a party or by
which any Loan Party or any of its property is bound, nor will they conflict
with, result in a breach of, or constitute (with due notice and lapse of time) a
default under any indenture, agreement, or other instrument, or result in the
creation or imposition of any lien, charge, or encumbrance of any nature on any
of the property or assets of any Loan Party, except as contemplated by the
provisions of the Loan Documents.
(b) Each of the Loan Documents, when executed and delivered to Beneficiary,
will constitute a valid obligation, enforceable in accordance with its terms.
Section 3.3. Financial Statements.
(a) All compilation financial statements and data that have been given to
Beneficiary with respect to any Loan Party:
(i) are complete and correct in all material respects;
(ii) accurately present the financial condition of that Loan Party on
each date as of which they have been furnished, and accurately present the
results of the operations of that Loan Party for the periods for which they have
been furnished; and
(iii) have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods covered.
(b) All balance sheets and the notes with respect to the Loan Parties
furnished to Beneficiary disclose all liabilities of the Loan Parties, fixed and
contingent, as of their respective dates, as well as all obligations of those
Loan Parties under any guaranties.
(c) There has been no Material Adverse Change in the financial condition or
operations of Trustor since:
(i) the date of the most recent financial statement given to
Beneficiary with respect to Trustor of the Property, or
(ii) the date of the financial statements given to Beneficiary
immediately prior to the date of this Deed of Trust, other than changes in the
ordinary course of business, none of which constitute a Material Adverse Change,
either individually or in the aggregate.
Section 3.4. Use of Proceeds of Loan.
Trustor will use the funds or the Property advanced pursuant to the Note to
develop, maintain, and operate the Property.
Section 3.5. Other Arrangements.
Trustor is not a party to any agreement or instrument materially and
adversely affecting Trustor's present or proposed business, properties, assets,
operation, or condition, financial or otherwise; and Trustor is not in default
in the performance, observance, or fulfillment of any of the material
obligations, covenants, or conditions in any agreement or instrument to which
Trustor is a party that materially affect Trustor's present or proposed
business, properties, assets, operation, or condition, financial or otherwise.
Section 3.6. Other Information.
All other reports, papers, data, and information given to Beneficiary with
respect to Trustor and the Property are accurate and correct in all material
respects and complete insofar as completeness may be necessary to give
Beneficiary a true and accurate knowledge of the subject matter.
Section 3.7. Litigation.
There is not now pending against or affecting any Loan Party, nor to the
knowledge of any Loan Party is there threatened, any action, suit, or proceeding
at law or in equity or before any administrative agency that, if adversely
determined, would materially impair or affect:
(a) the financial condition or operations of Trustor, or
(b) the condition or operation of the Property.
Section 3.8. Other Warranties.
(a) The Property is not used principally or primarily for agricultural or
grazing purposes, and
(b) Trustor is engaged in the development and operation of Improvements.
Section 3.9. Taxes.
Trustor has filed all federal, state, county, and municipal income tax
returns required to have been filed and has paid all taxes that have become due
pursuant to those returns or pursuant to any assessments received by Trustor,
and Trustor does not know of any basis for any additional assessment against
Trustor in respect of those taxes.
Section 3.10. Compliance with Laws.
Except as otherwise provided in this Deed of Trust, to the best of
Trustor's knowledge, the Property and the proposed and actual use of the
Property comply with all laws, ordinances, rules, and regulations of all local,
regional, county, state, and federal governmental authorities having
jurisdiction (including, but not limited to, the Americans With Disabilities
Act), and there is no action or proceeding pending or, to the knowledge of
Trustor after due inquiry, threatened before any court, quasi-judicial body, or
administrative agency at the time of any disbursement by Beneficiary relating to
the validity of the Loan or the proposed or actual use of the Property. All
rights to appeal any decision rendered will have expired prior to the date of
this Deed of Trust.
ARTICLE 4.
AFFIRMATIVE COVENANTS
Until the entire Indebtedness has been paid in full, Trustor covenants to
and agrees with Beneficiary as follows:
Section 4.1. Obligations of Trustor.
Trustor will pay the Indebtedness and Trustor will continue to be liable
for the payment of the Indebtedness until it has been paid in full. Trustor
(a) will timely perform all the covenants, agreements, terms, and
conditions to be performed by Trustor:
(i) under this Deed of Trust;
(ii) as seller under each contract of sale of, and as lessor under
each lease of, for any portion of the Property for which a contract of sale or
lease has been approved in writing by Beneficiary;
(iii) as required of Trustor under each document and agreement
constituting one of the Security Documents;
(iv) under all other agreements between Trustor and Beneficiary in
accordance with the respective terms of the agreement; and
(v) as required of Trustor under all other agreements to which Trustor
is a party with respect to the Property;
(b) will not cancel, surrender, modify, amend, or permit the cancellation,
surrender, modification, or amendment of any of the previously mentioned
agreements or any of the covenants, agreements, terms, or conditions contained
in any of them without the prior written consent, in each case, of Beneficiary,
except with respect to leases handled in the ordinary course of business; and
(c) will keep Beneficiary indemnified against all actions, proceedings,
costs (including, without limitation, Beneficiary's reasonable counsel fees and
disbursements), claims, and damages incurred or sustained by Beneficiary in
respect of the nonpayment of any charges or the nonobservance or nonperformance
of any of the covenants, agreements, terms, or conditions in any of the
previously mentioned agreements.
Section 4.2. Insurance.
(a) Trustor, at its sole cost and expense, will keep the Property insured
for the mutual benefit of Trustor and Beneficiary against loss or damage by
fire, and against loss or damage by other risks embraced by coverage of the type
now known as the broad form of extended coverage, including, but not limited to,
riot and civil commotion, vandalism, malicious mischief,
burglary, theft, and mysterious disappearance, and against any other risks or
hazards that Beneficiary may from time to time reasonably designate, in an
amount not less than one hundred percent (100%) of the then full replacement
cost of the Improvements, without deduction for physical depreciation. The
policies of insurance carried in accordance with this section will contain the
Replacement Cost Endorsement.
(b) Trustor, at its sole cost and expense, but for the mutual benefit of
Trustor and Beneficiary, will maintain during the term of this Deed of Trust
other insurance, and in any amounts, as may from time to time be reasonably
required by Beneficiary against other insurable risks, including, without
limitation, business interruption insurance.
(c) Trustor, at its sole cost and expense, will obtain and maintain public
liability insurance covering the Property and the ownership, use, occupancy, and
maintenance of the Property.
(d) All policies of insurance required pursuant to this Deed of Trust will
be satisfactory in form and substance to Beneficiary and will be approved by
Beneficiary as to amounts, form, risk coverage, deductibles, insurer, loss
payable, and cancellation provisions, which approval will not be unreasonably
withheld.
(e) Effective on the occurrence of any uncured Event of Default, all of
Trustor's right, title, and interest in all policies of property insurance and
any unearned premiums paid are assigned to Beneficiary, who may assign them to
any purchaser of the Property at any foreclosure sale.
Section 4.3. Maintenance, Waste, and Repair.
Trustor will maintain the Improvements now or later existing in good and
tenantable repair, and will not structurally alter them without the prior
written consent of Beneficiary, or remove or demolish them in whole or in part,
nor will Trustor suffer any waste of the Property or make any change in the use
of the Property that will in any way increase any ordinary fire or other hazard
insurance premiums or permit anything that may in any way impair the security of
this Deed of Trust. Trustor will not abandon the Property or leave the Property
unprotected, vacant, or deserted. Notwithstanding the foregoing, Trustor may
make tenant improvements in the ordinary course of business.
Section 4.4. Imposition; Impounds.
(a) Impositions Affecting the Property. Trustor will pay when due all
Impositions that are or that may become a lien on the Property or are assessed
against the Property or its rents, royalties, profits, and income.
(b) Taxes Affecting Trustor. Trustor will file all federal, state,
provincial, county, and municipal income tax returns required to be filed and
will pay all taxes that become due pursuant to the returns or pursuant to any
assessments received by Trustor.
Section 4.5. Compliance with Law.
Trustor will preserve and keep in full force its existence, rights, and
powers. Trustor will promptly and faithfully comply with all present and future
laws, ordinances, rules, regulations, and requirements of every governmental
authority or agency and of every board of fire underwriters (or similar body
exercising similar functions) having jurisdiction that may be applicable to it
or to the Property or to the use or manner of occupancy, possession, operation,
maintenance, alteration, or repair of the Property or any part of it, whether
the law, ordinance, rule, order, regulation, or requirement necessitates
structural changes or improvements or interferes with the use or enjoyment of
the Property.
Section 4.6. Books and Records.
Trustor will maintain complete books of account and other records
reflecting the results of Trustor's operations (in conjunction with its other
operations as well as its operation of the Property), in a form satisfactory to
Beneficiary, and furnish to Beneficiary any information about the financial
condition of Trustor, and the sales and operations of the Property as
Beneficiary reasonably requests, including, but not limited to, the following
information:
(a) a statement of revenues and expenses relating to the sales, rentals,
and operations of the Property for the month just ended;
(b) a copy of the annual compilation report for the fiscal year for
Trustor, including a balance sheet of Trustor as of the end of the fiscal year,
and statements of income and retained earnings and of change in financial
position of Trustor for the fiscal year, in each case certified in a manner
acceptable to Beneficiary by independent public accountants acceptable to
Beneficiary;
(c) copies of all financial statements, reports, and notices (including tax
returns) sent by Trustor to its partners or any governmental authority
succeeding to any of its functions; and
(d) copies of any reports by independent public accountants submitted to
Trustor concerning its properties or operations if there is a discrepancy in the
reports.
Beneficiary will have the right, at all reasonable times and on reasonable
notice, to audit Trustor's books of account and records, all of which will be
made available to Beneficiary and Beneficiary's representatives for that
purpose, from time to time, on Beneficiary's request.
Section 4.7. Further Assurances.
Trustor, at Trustor's expense and at any time on the reasonable request of
Beneficiary, will execute, acknowledge, and deliver any additional papers and
instruments (including, without limitation, a declaration of no setoff) and any
further assurances of title and will do or cause to be done all further acts and
things that may be proper or reasonably necessary to carry out the purpose of
this Deed of Trust and of the Loan Documents and to subject to the liens any
property
intended by the terms to be covered and any renewals, additions, substitutions,
replacements, or betterments.
Section 4.8. Statement by Trustor.
Trustor, on ten (10) days' written request, will furnish a statement of the
amount due or outstanding on the Note and a statement of any offsets,
counterclaims, or defenses to the payment.
Section 4.9. Indemnity.
(a) If any action or proceeding (whether judicial, regulatory, or
administrative) is threatened or commenced, except an action to foreclose this
Deed of Trust or to collect the Indebtedness:
(i) that affects the Property or any portion of it;
(ii) in which Beneficiary is or could be made a party; or
(iii) in which it becomes necessary to defend or uphold the lien of
this Deed of Trust,
then all costs, fees, and expenses incurred by Beneficiary with respect to the
action or proceeding (including, without limitation, reasonable attorney fees
and expenses) will, within ten (10) days after the submission of bills for the
costs to Trustor, be paid directly to the billing party by Trustor.
(b) In addition, Trustor agrees to pay all costs, including, without
limitation, reasonable attorney fees and expenses, incurred by Beneficiary in
enforcing the terms of this Deed of Trust or the terms of any of the Loan
Documents, whether or not suit is filed. Trustor agrees to indemnify and hold
Beneficiary harmless from all liability, loss, damage, or expense (including,
without limitation, attorney fees) that it may incur under this Deed of Trust,
or in connection with the making of any of the loans or financial arrangements
secured by this Deed of Trust, the enforcement of any of Beneficiary's rights or
remedies, any action taken by Beneficiary under this Deed of Trust, or by reason
or in defense of any claims and demands that may be asserted against Beneficiary
arising out of the Collateral.
(c) On the failure of Trustor to make timely payment pursuant to the terms
of Section 4.9(a) of this Deed of Trust, the payment may be paid by Beneficiary.
Sums of money paid by Beneficiary, and sums owed to Beneficiary pursuant to
Section 4.9(b) of this Deed of Trust, together with interest at the Default Rate
from the date Beneficiary makes the payment or incurs the loss, will be secured
by this Deed of Trust, prior to any right, title, or interest in or claim on the
Property attaching or accruing subsequent to the lien of this Deed of Trust, and
will be payable by Trustor to Beneficiary on demand.
(d) The provisions of this Section 4.9 will survive the termination of this
Deed of Trust and the repayment of the Indebtedness.
Section 4.10. Reimbursement.
Beneficiary will have the right to declare immediately due any amount paid
by it for any tax, stamp tax, assessment, water rate, sewer rate, insurance
premium, repair, rent charge, debt, claim, inspection, or lien having priority
over this Deed of Trust, or over any other agreement given to secure the
Indebtedness.
Section 4.11. Litigation.
Trustor will promptly give written notice to Beneficiary of any litigation
that materially affects the Trustor's loan or that materially affects the
Property commenced or threatened affecting Trustor or the Property other than
unlawful detainer proceedings brought by Trustor.
Section 4.12. Tax Receipts.
Subject to the provisions of Section 4.4 of this Deed of Trust, Trustor
will exhibit to Beneficiary, within seven (7) days after demand, and if in
receipt of Trustor bills (that will be receipted from and after the date
receipted bills are obtainable) showing the payment to the extent then due of
all taxes, assessments (including those payable in periodic installments), water
rates, sewer rates, or any other Imposition that may have become a lien on the
Property or any Personalty prior to the lien of this Deed of Trust.
Section 4.13. Duplicate Plans.
Trustor will submit to Beneficiary a duplicate set of plans and
specifications for approval before any material improvements, repairs, or
alterations are begun that affect the Property, with the exception of tenant
improvements in the ordinary course of business.
Section 4.14. Additional Information.
Trustor will furnish to Beneficiary, within seven (7) days after written
request, all information that Beneficiary may reasonably request concerning the
performance by Trustor of the covenants of the Loan Documents, and Trustor will
permit Beneficiary or its representatives at all reasonable times to make
investigation or examination concerning that performance.
Section 4.15. Right of Entry.
Trustor grants to Beneficiary and its agents, employees, consultants, and
contractors the right to enter on the Property for the purpose of making any
inspections, reports, tests (including, without limitation, soils borings,
groundwater testing, xxxxx, or soils analysis), inquiries, and reviews that
Beneficiary, in its sole and absolute discretion, deems necessary to assess the
then current condition of the Property. Beneficiary will provide Trustor with
three (3) Business Days' notice of the entry. Trustor's consent will not be
unreasonably withheld for entry or for the performance of tests. All costs,
fees, and expenses (including, without limitation, those of Beneficiary's
outside counsel and consultants) incurred by Beneficiary with respect to the
inspections, reports, tests, inquiries, and reviews, together with all related
preparation, consultation, analyses, and review, will be paid by Trustor to
Beneficiary on demand, will accrue interest at the Default Rate until paid, and
will be secured by this Deed of Trust, prior to any right, title, or interest in
or claim on the Property attaching or accruing subsequent to the lien of this
Deed of Trust. However, Beneficiary shall not bore deeper than the deepest
footing.
ARTICLE 5.
NEGATIVE COVENANTS
Until the entire Indebtedness has been paid in full, Trustor covenants to
and agrees with Beneficiary as follows:
Section 5.1. Restrictive Uses.
Trustor covenants not to initiate, join in, or consent to any change in any
zoning ordinance, private restrictive covenant, assessment proceedings, or other
public or private restriction limiting or restricting the uses that may be made
of the Property or any part of it without the prior written consent of
Beneficiary, which consent not to be unreasonably withheld.
Section 5.2. Other Financing.
Except for the liens securing the Indebtedness, Trustor will not create or
permit to continue in existence any mortgage, pledge, encumbrance, lien, or
charge of any kind (including purchase money and conditional sale liens) on any
of the Property except for:
(a) liens for taxes not yet delinquent, and
(b) any other liens or charges that are specifically approved in writing by
Beneficiary prior to the recordation, consent not to be unreasonably withheld.
Any transaction in violation of this section will cause all Indebtedness,
irrespective of the maturity dates, at the option of the holder and without
demand or notice, to immediately become due, together with any prepayment
premium in accordance with the terms of the Note.
Section 5.3. Transferability.
One of the inducements to Beneficiary for making the Loan is the identity
of Trustor. The existence of any interest in the Property other than the
interests of Trustor and Beneficiary and any encumbrance permitted in this Deed
of Trust, even though subordinate to the security interest of Beneficiary, and
the existence of any interest in Trustor other than those of the present owners,
would impair the Property and the security interest of Beneficiary, and,
therefore, Trustor will not sell, convey, assign, transfer, alienate, or
otherwise dispose of its interest in the Property, either voluntarily or by
operation of law, or agree to do so, without the prior written consent of
Beneficiary. Consent to one transaction by Beneficiary will not be deemed a
waiver of the right to require consent to further or successive transactions. If
Trustor is a partnership, any change or addition of a general partner of
Trustor, change of a partnership interest of Trustor, or sale, transfer, or
disposition of fifty-one percent (51%) or more of the voting stock or
partnership interest of any partner of Trustor or of any corporation or
partnership that directly or indirectly owns or controls any partner of Trustor,
including, without limitation, each parent company of a partner of Trustor and
each parent company of any parent company of a partner of Trustor, will
constitute a sale of the Property for purposes of this section. Any transaction
in violation of this section will cause all Indebtedness, irrespective of the
maturity dates, at the option of the holder and without demand or notice,
immediately to become due, together with any prepayment premium in accordance
with the terms of the Note.
Section 5.4. Replacement of Fixtures and Personalty.
Trustor will not permit any of the Fixtures or Personalty to be removed at
any time from the Property without the prior written consent of Beneficiary
unless actually replaced by articles of equal suitability and value owned by
Trustor free and clear of any lien or security interest except as may be
approved in writing by Beneficiary. Notwithstanding the foregoing, Trustor may
make tenant improvements in the ordinary course of business.
ARTICLE 6.
ENVIRONMENTAL PROVISIONS
Section 6.1. Representations and Warranties.
Except as disclosed in writing to, and acknowledged in writing by, Lender,
Trustor represents and warrants that to the best of Trustor's knowledge:
(a) during the period of Trustor's ownership of the Property
(i) there has been no use, generation, manufacture, storage,
treatment, disposal, discharge, Release, or threatened Release of any Hazardous
Substance by any person on or around the Property; and
(ii) there have been no Hazardous Substances transported over or
through the Property;
(b) after diligent inquiry, Trustor has no knowledge of, or reason to
believe that, there has been:
(i) any use, generation, manufacture, storage, treatment, disposal,
Release, or threatened Release of any hazardous waste or substance by any prior
owners or prior occupants of the Property or by any third parties onto the
Property; or
(ii) any actual or threatened litigation or claims of any kind by any
person relating to these matters;
(c) no Hazardous Substances in excess of permitted levels or reportable
quantities under applicable Hazardous Substance Laws are present in or about the
Property or any nearby real property that could migrate to the Property;
(d) no Release or threatened Release exists or has occurred;
(e) no underground storage tanks of any kind are or ever have been located
in or about the Property;
(f) the Property and all operations and activities at, and the use and
occupancy of, the Property, comply with all applicable Hazardous Substance Laws;
(g) Trustor and every User has, and is now in strict compliance with, every
permit, license, and approval required by all applicable Hazardous Substance
Laws for all activities and operations at, and the use and occupancy of, the
Property;
(h) to the best of Trustor's knowledge, after diligent inquiry, there are
no Hazardous Substance Claims pending or threatened with regard to Property or
against Trustor or any Guarantor;
(i) the Property has not been nor is it within 2,000 feet of any other
property designated as hazardous waste property or border zone property pursuant
to Health and Safety Code Sections 25220 et seq., and no proceedings for a
determination of this designation are pending or threatened;
(j) to the best of its knowledge after diligent inquiry, there exists no
occurrence or condition on any real property adjoining or within 2,000 feet of
the Property that would cause the Property or any part of it to be designated as
hazardous waste property or border zone property under the provisions of Health
and Safety Code Sections 25220 et seq. and any regulation adopted in accordance
with that section;
(k) that the current use of the Property is commercial leases;
(l) any written disclosure submitted by or on behalf of Trustor to
Beneficiary concerning any Release or threatened Release, past or present
compliance by Trustor, or any User or other
person of any Hazardous Substance Laws applicable to the Property, the past and
present use and occupancy of the Property, and any environmental concerns
relating to the Property, was true and complete when submitted and continues to
be true and complete as of the date of this Deed of Trust.
Section 6.2. Covenants.
Trustor agrees, except in the ordinary course of business and in strict
compliance with all applicable Hazardous Substance Laws, as follows:
(a) not to cause or permit the Property to be used as a site for the use,
generation, manufacture, storage, treatment, Release, discharge, disposal,
transportation, or presence of any Hazardous Substance without consent of
Beneficiary, not to be unreasonably withheld;
(b) not to cause, contribute to, permit, or acquiesce in any Release or
threatened Release;
(c) not to change or modify the use of the Property without the prior
written consent of Beneficiary;
(d) to comply with and to cause the Property and every User of the Property
to comply with all Hazardous Substance Laws;
(e) to immediately notify Beneficiary in writing and to provide Beneficiary
with a reasonably detailed description of:
(i) any noncompliance of the Property with any Hazardous Substance
Laws;
(ii) any Hazardous Substance Claim;
(iii) any Release or Threatened Release;
(iv) the discovery of any occurrence or condition on any real property
adjoining or in the vicinity of the Property that would cause the Property or
any part of it to be designated as hazardous waste property or border zone
property under the provisions of Health and Safety Code Sections 25220 et seq.
and any regulation adopted in accordance with that section;
(f) in the event that Trustor discovers a Release or the presence of any
Hazardous Substance on or about the Property in violation of any Hazardous
Substance Law, to:
(i) notify Lender of that discovery together with a reasonably
detailed description;
(ii) promptly after a request by Beneficiary, engage a qualified
environmental engineer reasonably satisfactory to Beneficiary to investigate
these matters and prepare and submit to Beneficiary a written report containing
the findings and conclusions resulting from that investigation, all at the sole
expense of Trustor; and
(iii) take, at Trustor's sole expense, all necessary actions to
remedy, repair, clean up, or detoxify any Release or Hazardous Substance,
including, but not limited to, any remedial action required by any Hazardous
Substance Laws or any judgment, consent, decree, settlement, or compromise in
respect of any Hazardous Substance Claims, these actions to be performed:
(A) in accordance with Hazardous Substance Laws;
(B) in a good and proper manner;
(C) under the supervision of a qualified environmental engineer
approved in writing by Beneficiary;
(D) in accordance with plans and specifications for these actions
approved in writing by Beneficiary; and
(E) using licensed and insured qualified contractors approved in
writing by Beneficiary;
(g) immediately furnish to Beneficiary copies of all written
communications received by Trustor from any governmental authority or other
person or given by Trustor to any person and any other information Beneficiary
may reasonably request concerning any Release, threatened Release, Hazardous
Substance Claim, or the discovery of any Hazardous Substance on or about the
Property in violation of any Hazardous Substance Law; and
(h) keep Beneficiary generally informed regarding any Release,
threatened Release, Hazardous Substance Claim, or the discovery of any Hazardous
Substance on or about the Property in violation of any Hazardous Substance Law.
Section 6.3. Inspection and Receivership Rights.
Upon Beneficiary's reasonable belief of the existence of a past or present
Release or threatened Release not previously disclosed by Trustor in connection
with the making of the Loan or the execution of this Deed of Trust or upon
Beneficiary's reasonable belief that Trustor has failed to comply with any
environmental provision of this Deed of Trust or any other Loan Document and
upon reasonable prior notice (except in the case of an emergency) to Trustor,
Beneficiary or its representatives, employees, and agents, may from time to time
and at all reasonable times (or at any time in the case of an emergency) enter
and inspect the Property and every part of it (including all samples of building
materials, soil, and groundwater, and all books, records, and files of Trustor
relating to the Property) and perform those acts and things that Beneficiary
deems necessary or desirable to inspect, investigate, assess, and protect the
security of this Deed of Trust, for the purpose of determining:
(a) the existence, location, nature, and magnitude of any past or present
Release or threatened Release;
(b) the presence of any Hazardous Substances on or about the Property in
violation of any Hazardous Substance Law; and
(c) the compliance by Trustor of every environmental provision of this Deed
of Trust and every other Loan Document.
In furtherance of the purposes above, without limitation of any of its other
rights, Beneficiary may:
(i) obtain a court order to enforce Beneficiary's right to enter and
inspect the Property under Civil Code Section 2929.5, to which the decision of
Beneficiary as to whether there exists a Release, a threatened Release, any
Hazardous Substances on or about the Property in violation of any Hazardous
Substance Law, or a breach by Trustor of any environmental provision of this
Deed of Trust or any other Loan Document, will be deemed reasonable and
conclusive as between the parties; and
(ii) have a receiver appointed under Code of Civil Procedure Section
564 to enforce Beneficiary's right to enter and inspect the Property for the
purpose set forth above.
All reasonable costs and expenses incurred by Beneficiary with respect to the
audits, tests, inspections, and examinations that Beneficiary or its agents,
representatives, or employees may conduct, including the fees of the engineers,
laboratories, contractors, consultants, and attorneys, will be paid by Trustor.
All reasonable costs or expenses incurred by Trustee and Beneficiary pursuant to
this subsection (including without limitation court costs, consultant's fees,
and attorney fees, whether incurred in litigation and whether before or after
judgment) will bear interest at the Default Rate from the date they are incurred
until those sums have been paid in full. Except as provided by law, any
inspections or tests made by Beneficiary or its representatives, employees, and
agents will be for Beneficiary's purposes only and will not be construed to
create any responsibility or liability on the part of Beneficiary to Trustor or
to any other person. Beneficiary will have the right, but not the obligation, to
communicate with any governmental authority regarding any fact or reasonable
belief of Beneficiary that constitutes or could constitute a breach of any of
Trustor's obligations under any environmental provision contained in this Deed
of Trust or any Loan Document.
Section 6.4. Release and Indemnity. Trustor
(a) releases and waives any future claims against Beneficiary for indemnity
or contribution in the event Trustor becomes liable for cleanup or other costs
under any Hazardous Substance Laws or under any Hazardous Substance Claim;
(b) agrees to reimburse Beneficiary, on demand, for all costs and expenses
incurred by Beneficiary in connection with any review, approval, consent, or
inspection relating to the environmental provisions in this Deed of Trust
together with interest, after demand, at the Default Rate; and
(c) agrees to indemnify, defend, and hold Beneficiary and Trustee harmless
from all losses, costs, claims, damages, penalties, liabilities, causes of
action, judgments, court costs, attorney fees and other legal expenses, costs of
evidence of title, cost of evidence of value, and other expenses (collectively,
"Expenses"), including, but not limited to, any Expenses incurred or accruing
after the foreclosure of the lien of this Deed of Trust, which either may suffer
or incur and which directly or indirectly arises out of or is in any way
connected with the breach of any environmental provision either in this Deed of
Trust or in any Loan Document or as a consequence of any Release or threatened
Release on the presence, use, generation, manufacture, storage, disposal,
transportation, Release, or threatened Release of any Hazardous Substance on or
about the Property, including the soils and groundwaters, caused or permitted by
Trustor, any prior owner or operator of the Property, any adjoining landowner or
any other party, including, without limitation, the cost of any required or
necessary repair, cleanup, remedy, or detoxification of any Hazardous Substance
and the preparation of any closure, remedial action, or other required plans,
whether that action is required or necessary by reason of acts or omissions
occurring prior to or following the recordation of this Deed of Trust. Trustor's
obligations will survive the satisfaction, release, or cancellation of the
Indebtedness, the release and reconveyance or partial release and reconveyance
of this Deed of Trust, and the foreclosure of the lien of this Deed of Trust or
deed in lieu of the Deed of Trust.
Section 6.5. Request for Information.
Trustor and Beneficiary agree that:
(a) this Section 6.5 is intended as Beneficiary's written request for
information and Trustor's written response concerning the environmental
condition of the Property as provided by Code of Civil Procedure Section 726.5;
and
(b) each representation, warranty, covenant, or indemnity made by Trustor
in this Article or in any other provision of this Deed of Trust or any Loan
Document that relates to the environmental condition of the Property is intended
by Trustor and Beneficiary to be an environmental provision for purposes of Code
of Civil Procedure Section 736 and will survive the payment of the Indebtedness
and the termination or expiration of this Deed of Trust and will not be affected
by Lender's acquisition of any interest in the Property, whether by full credit
bid at foreclosure, deed in lieu of that, or otherwise. If there is any transfer
of any portion of Trustor's interest in the Property, any successor-in-interest
to Trustor agrees by its succession to that interest that the written request
made pursuant to this Article will be deemed remade to the successor-in-interest
without any further or additional action on the part of Beneficiary and that by
assuming the debt secured by this Deed of Trust or by accepting the interest of
Trustor subject to the lien of this Deed of Trust, the successor remakes each of
the representations and warranties in this Deed of Trust and agrees to be bound
by each covenant in this Deed of Trust, including, but not limited to, any
indemnity provision.
Section 6.6. Effect of Site Assessment.
Even though Trustor may have provided Beneficiary with an environmental
site assessment or other environmental report together with other relevant
information regarding the environmental condition of the Property, Trustor
acknowledges and agrees that Beneficiary is not accepting the Property as
security for the Loan based on that assessment, report, or information. Rather
Beneficiary has relied on the representations and warranties of Trustor in this
Deed of Trust, and Beneficiary is not waiving any of its rights and remedies in
the environmental provisions of this Deed of Trust or any other Loan Document.
ARTICLE 7.
CASUALTIES AND CONDEMNATION
Section 7.1. Casualties.
(a) Trustor will promptly notify Beneficiary in writing after any loss or
damage caused by fire or other casualty to the Property in excess of $100,000,
and prior to the making of any repairs. Trustor will furnish to Beneficiary
within ninety (90) days after the loss or damage the following:
(i) evidence satisfactory to Beneficiary of the cost of repair or
reconstruction;
(ii) evidence satisfactory to Beneficiary that sufficient funds are
available or committed for the benefit of Beneficiary, including insurance
proceeds, payment and performance bonds, or otherwise, to complete the repair or
reconstruction; and
(iii) evidence satisfactory to Beneficiary that the repair or
reconstruction may be completed in accordance with all applicable laws, rules,
regulations, and ordinances and that all necessary permits and approvals have
been or will be obtained.
If Trustor does not furnish this evidence to Beneficiary within the
ninety-day period, or if Beneficiary in its sole discretion determines that
repair or reconstruction is not economically feasible, then within thirty (30)
days after the expiration of the ninety-day period, Beneficiary will have the
option (in this Deed of Trust, Repayment Option") to have all insurance proceeds
applied against the Indebtedness. If Beneficiary elects the Repayment Option,
Trustor will immediately transfer to Beneficiary all insurance proceeds received
by it, if any, to the extent of the Indebtedness, and Beneficiary will apply the
insurance proceeds received by it, if any, against the Indebtedness. If the
insurance proceeds held by Trustor and Beneficiary will exceed the Indebtedness,
any excess insurance proceeds will belong and be paid over to or be retained by
Trustor.
(b) If Beneficiary does not elect the Repayment Option within the specified
time period, Trustor will with all diligence repair or otherwise reconstruct the
damage to the Property, all according to the original plans and specifications
for the improvements and elevations or any modified plans and specifications
conforming to the then laws and regulations as will first have been approved in
writing by Beneficiary and any occupants of the Improvements having the right
to approve. Beneficiary will use all insurance proceeds, if any, received by it
relating to the damage or destruction to reimburse Trustor from time to time for
expenditures made for repair of the damage or for the erection of any building,
structure, or improvements in their place if permitted as follows:
(i) At the end of each month against Trustor's architect's
certificate, an amount that will be that proportion of the insurance proceeds
held in trust that eighty-five percent (85%) of the payments to be made to the
contractors or materialmen for work done, materials supplied, and services
rendered during that month bears to the total contract price.
(ii) At the completion of the work, the balance of the proceeds
required for completing the payments for the work will be paid to or for the
account of Trustor, provided that at the time of the payment:
(1) there are no liens (as evidenced by an endorsement
satisfactory to Beneficiary issued by Trustee) against the Property by reason of
the work, or proof satisfactory to Beneficiary has been submitted that all costs
of the work have been paid; and
(2) Trustor's architect will certify that all required work is
completed and is proper and of a quality and class of the original work required
by the original plans and specifications and in accordance with the approved
plans and specifications.
If the insurance proceeds exceed the costs of completing the work, the
excess insurance proceeds will belong and be retained by or be paid over to
Beneficiary to be applied against the Indebtedness. If the costs of completing
the work exceed the insurance proceeds, Trustor will pay the balance of the
costs of completing the work within thirty (30) days after the completion.
Section 7.2. Condemnation.
Trustor, immediately upon obtaining knowledge of the institution of any
proceedings for the condemnation of the Property or any portion of it, will
notify Trustee and Beneficiary of the pendency of the proceedings. Trustee and
Beneficiary may participate in any proceedings and Trustor from time to time
will deliver to Beneficiary all instruments requested by Beneficiary to permit
participation. If there are condemnation proceedings, the award or compensation
payable is assigned to and will be paid to Beneficiary. Beneficiary will be
under no obligation to question the amount of any award or compensation and may
accept it in the amount in which it is paid. In any condemnation proceedings,
Beneficiary may be represented by counsel selected by Beneficiary. The proceeds
of any award or compensation received will, at the option of Beneficiary, either
be applied, without premium, to the prepayment of the Note or be paid over to
Trustor for restoration of the Improvements in accordance with the provisions of
Section 7.1 of this Deed of Trust.
ARTICLE 8.
EVENTS OF DEFAULT AND REMEDIES OF BENEFICIARY
Section 8.1. Events of Default.
The following events are each an Event of Default :
(a) Default in the payment of any sum of principal or interest when due
under the Note or any other sum due under the Loan Documents.
(b) The failure (without cure during the applicable period, if any, for
cure) of any Loan Party to observe, perform, or discharge any obligation, term,
covenant, or condition of Loan Documents, any agreement relating to the
Property, or any agreement or instrument between any Loan Party and Beneficiary.
(c) The assignment by Trustor, as lessor or sublessor, as the case may be,
of the rents or the income of the Property or any part of it (other than to
Beneficiary) without first obtaining the written consent of Beneficiary.
(d) The following events:
(i) The filing of any claim or lien against the Property or any part
of it, whether or not the lien is prior to this Deed of Trust, and the continued
maintenance of the claim or lien for a period of thirty (30) days without
discharge, satisfaction, or adequate bonding in accordance with the terms of
this Deed of Trust;
(ii) the existence of any interest in the Property other than those of
Trustor, Beneficiary, and any tenants of Trustor; or
(iii) the sale, hypothecation, conveyance, or other disposition of the
Property except in accordance with Sections 5.2 or 5.3 of this Deed of Trust,
any of which will be an Event of Default because Trustor's obligation to own and
operate the Property is one of the inducements to Beneficiary to make the Loan;
(e) Any representation or warranty made by any Loan Party or any other
Person under this Deed of Trust or in, under, or pursuant to the Loan Documents,
is false or misleading in any material respect as of the date on which the
representation or warranty was made.
(f) Any of the Loan Documents, at any time after their respective execution
and delivery and for any reason, cease to be in full force or are declared null
and void, or the validity or enforceability is contested by any Loan Party or
any stockholder or partner of any Loan Party, or any Loan Party denies that it
has any or further liability or obligation under any of the Loan Documents to
which it is a party.
(g) Any representation made by any Loan Party in the Certification
Agreement is false or misleading in any material respect as of the date made, or
any breach or default in any of Trustor's obligations under the Certification
Agreement;
(h) The occurrence of any Material Adverse Change.
If one or more Event of Default occurs and is continuing, then Beneficiary
may declare all the Indebtedness to be due and the Indebtedness will become due
without any further presentment, demand, protest, or notice of any kind, and
Beneficiary may:
(i) in person, by agent, or by a receiver, and without regard to the
adequacy of security, the solvency of Trustor, or the existence of waste, enter
on and take possession of the Property or any part of it in its own name or in
the name of Trustee, xxx for or otherwise collect the rents, issues, and
profits, and apply them, less costs and expenses of operation and collection,
including reasonable attorney fees, upon the Indebtedness, all in any order that
Beneficiary may determine. The entering on and taking possession of the
Property, the collection of rents, issues, and profits, and the application of
them will not cure or waive any default or notice of default or invalidate any
act done pursuant to the notice;
(ii) commence an action to foreclose this Deed of Trust in the manner
provided by law for the foreclosure of mortgages of real property;
(iii) deliver to Trustee a written declaration of default and demand
for sale, and a written notice of default and election to cause the Property to
be sold, which notice Trustee or Beneficiary will cause to be filed for record;
(iv) with respect to any Personalty, proceed as to both the real and
personal property in accordance with Beneficiary's rights and remedies in
respect of the Land, or proceed to sell the Personalty separately and without
regard to the Land in accordance with Beneficiary's rights and remedies; or
(v) exercise any of these remedies in combination or any other remedy
at law or in equity.
Section 8.2. Power of Sale.
(a) If Beneficiary elects to foreclose by exercise of the power of sale in
this Deed of Trust, Beneficiary will also deposit with Trustee this Deed of
Trust, the Note, and any receipts and evidence of expenditures made and secured
as Trustee may require. If notice of default has been given as then required by
law, and after lapse of the time that may then be required by law, after
recordation of the notice of default, Trustee, without demand on Trustor, will,
after notice of sale having been given as required by law, sell the Property at
the time and place of sale fixed by it in the notice of sale, either as a whole
or in separate parcels as Trustee determines, and in any order that it may
determine, at public auction to the highest bidder. Trustee may postpone sale of
all or any portion of the Property by public announcement at the time and place
of sale, and from time to time after that may postpone the sale by public
announcement at the time fixed by the preceding postponement, and without
further notice make the sale at the time fixed by the last postponement; or
Trustee may, in its discretion, give a new notice of sale. Beneficiary may
rescind any notice of default at any time before Trustee's sale by executing a
notice of rescission and
recording it. The recordation of the notice will constitute a cancellation of
any prior declaration of default and demand for sale and of any acceleration of
maturity of Indebtedness affected by any prior declaration or notice of default.
The exercise by Beneficiary of the right of rescission will not constitute a
waiver of any default then existing or subsequently occurring, or impair the
right of Beneficiary to execute other declarations of default and demand for
sale, or notices of default and of election to cause the Property to be sold,
nor otherwise affect the Note or this Deed of Trust, or any of the rights,
obligations, or remedies of Beneficiary or Trustee. After sale, Trustee will
deliver to the purchaser its deed conveying the property sold, but without any
covenant or warranty, express or implied. The recitals in the deed of any
matters or facts will be conclusive proof of their truthfulness. Any Person,
including Trustor, Trustee, or Beneficiary, may purchase at that sale. If
allowed by law, Beneficiary, if it is the purchaser, may turn in the Note at the
amount owing on it toward payment of the purchase price (or for endorsement of
the purchase price as a payment on the Note if the amount owing exceeds the
purchase price). Trustor expressly waives any right of redemption after sale
that Trustor may have at the time of sale or that may apply to the sale.
(b) Trustee, upon the sale, will make (without any covenant or warranty,
express or implied), execute and, after due payment made, deliver to a purchaser
and its heirs or assigns a deed or other record of interest, as the case may be,
to the Property sold, which will convey to the purchaser all the title and
interest of Trustor in the Property and will apply the proceeds of the sale in
payment:
(i) first, of the expenses of the sale together with the expenses of
the trust, including, without limitation, attorney fees, that will become due on
any default made by Trustor, and also any sums that Trustee or Beneficiary have
paid for procuring a search of the title to the Property subsequent to the
execution of this Deed of Trust; and
(ii) second, in payment of the Indebtedness then remaining unpaid, and
the amount of all other monies with interest in this Deed of Trust agreed or
provided to be paid by Trustor.
Trustee will pay the balance or surplus of the proceeds of sale to Trustor and
its successors or assigns as its interests may appear.
Section 8.3. Proof of Default.
If there is a sale of the Property, or any part of it, and the execution of
a deed for it, the recital of default and of recording notice of breach and
election of sale, and of the elapsing of the required time between the recording
and the following notice, and of the giving of notice of sale, and of a demand
by Beneficiary that the sale should be made, will be conclusive proof of the
default, recording, election, elapsing of time, and the due giving of notice,
and that the sale was regularly and validly made on proper demand by
Beneficiary. Any deed with these recitals will be effectual and conclusive
against Trustor, its successors, and assigns, and all other Persons. The receipt
for the purchase money recited or in any deed executed to the purchaser will be
sufficient discharge to the purchaser from all obligations to see to the proper
application of the purchase money.
Section 8.4. Protection of Security.
If an uncured Event of Default occurs and is continuing, Beneficiary or
Trustee, without limitation to do so, without notice to or demand upon Trustor,
and without releasing Trustor from any obligations or defaults may:
(a) enter on the Property in any manner and to any extent that either deems
necessary to protect the security of this Deed of Trust;
(b) appear in and defend any action or proceeding purporting to affect, in
any manner, the Obligations or the Indebtedness, the security of this Deed of
Trust, or the rights or powers of Beneficiary or Trustee;
(c) pay, purchase, or compromise any encumbrance, charge, or lien that in
the judgment of Beneficiary or Trustee is prior or superior to this Deed of
Trust; and
(d) pay necessary expenses, employ counsel, and pay reasonable attorney
fees.
Trustor agrees to repay on demand all sums expended by Trustee or Beneficiary
pursuant to this section with interest at the Default Rate, and those sums, with
interest, will be secured by this Deed of Trust.
Section 8.5. Receiver.
If an uncured Event of Default occurs and is continuing, Beneficiary, as a
matter of strict right and without notice to Trustor or anyone claiming under
Trustor and without regard to the then value of the Property, will have the
right to apply ex parte to any court having jurisdiction to appoint a Receiver
of the Property, with such notice as is required by any court of competent
jurisdiction. Any Receiver will have all the powers and duties of receivers in
similar cases and all the powers and duties of Beneficiary in case of entry as
provided in this Deed of Trust, and will continue as such and exercise all those
powers until the date of confirmation of sale, unless the receivership is
terminated sooner.
Section 8.6. Curing the Defaults.
If Trustor at any time fails to perform or comply with any of the terms,
covenants, and conditions required on Trustor's part to be performed and
complied with under this Deed of Trust, the Note, any of the other Loan
Documents, or any other agreement that, under the terms of this Deed of Trust,
Trustor is required to perform, then Beneficiary, after seven (7) Business Days'
notice to Trustor, and without waiving or releasing Trustor from any of the
Obligations, may, subject to the provisions of any of the agreements:
(a) make from its own funds any payments payable by Trustor and take out,
pay for, and maintain any of the insurance policies provided for; and
(b) perform any other acts on the part of Trustor to be performed and enter
on the Property for that purpose.
The making by Beneficiary of payments out of Beneficiary's own funds will not,
however, be deemed to cure the default by Trustor, and they will not be cured
unless and until Trustor reimburses Beneficiary for the payments. All sums paid
and all reasonable costs and expenses incurred by Beneficiary in connection with
the performance of any act, together with interest on unpaid balances at the
Default Rate from the respective dates of Beneficiary's making of each payment,
will be added to the principal of the Indebtedness, will be secured by the
Security Documents and by the lien of this Deed of Trust, prior to any right,
title, or interest in or claim on the Property attaching or accruing subsequent
to the lien of this Deed of Trust, and will be payable by Trustor to Beneficiary
on demand. For any nonmonetary default, cure shall be commenced within seven
days written notice, and completed as soon as reasonably practicable.
Section 8.7. Inspection Rights.
On reasonable notice (and at reasonable intervals), and without releasing
Trustor from any obligation to cure any default of Trustor, Beneficiary or its
agents, representatives, and employees acting by themselves or through a
court-appointed receiver, may, from time to time and at all reasonable times
enter and inspect the Property and every part of it (including all samples of
building materials, soil, and groundwater, and all books, records, and files of
Trustor relating to the Property) and perform any acts and things as Beneficiary
deems necessary or desirable to inspect, investigate, assess, and protect the
security of this Deed of Trust, for the purpose of determining:
(a) the existence, location, nature, and magnitude of any past or present
Release or threatened Release,
(b) the presence of any Hazardous Substances on or about the Property in
violation of any Hazardous Substance Law, and
(c) the compliance by Trustor of every environmental provision of this Deed
of Trust and every other Loan Document.
In furtherance of these purposes, without limitation of any of its other
rights, Beneficiary may:
(a) obtain a court order to enforce Beneficiary's right to enter and
inspect the Property under Civil Code Section 2929.5, to which the decision of
Beneficiary as to whether there exists a Release, threatened Release, any
Hazardous Substances on or about the Property in violation of any Hazardous
Substance Law, or a breach by Trustor of any environmental provision of this
Deed of Trust or any other Loan Document, will be deemed reasonable and
conclusive as between Trustor, Trustee, and Beneficiary; and
(b) have a receiver appointed under Code of Civil Procedure Section 564 to
enforce Beneficiary's right to enter and inspect the Property for Hazardous
Substances.
All costs and expenses incurred by Beneficiary with respect to the audits,
tests, inspections, and examinations that Beneficiary or its agents,
representatives, or employees may conduct, including the fees of the engineers,
laboratories, contractors, consultants, and attorneys, will be paid by Trustor.
All costs or expenses incurred by Trustee and Beneficiary pursuant to this
subsection (including, without limitation, court costs, consultants fees, and
attorney fees, whether incurred in litigation and whether before or after
judgment) will bear interest at the Default Rate from the date they are incurred
until they have been paid in full. Except as provided by law, any inspections or
tests made by Beneficiary or its representatives, employees, and agents, will be
for Beneficiary's purposes only and will not be construed to create any
responsibility or liability on the part of Beneficiary to Trustor or to any
other person. Beneficiary will have the right, but not the obligation, to
communicate with any governmental authority regarding any fact or reasonable
belief of Beneficiary that constitutes or could constitute a breach of any of
Trustor's obligations under any environmental provision in this Deed of Trust or
any Loan Document.
Section 8.8. Judgment on Environmental Provision.
Beneficiary or its agents, representatives, and employees may seek a
judgment that Trustor has breached its covenants, representations, or warranties
in Article 6 of this Deed of Trust or any other covenants, representations, or
warranties that are deemed to be environmental provisions pursuant to Code of
Civil Procedure Section 736 (each an Environmental Provision"), by commencing
and maintaining an action or actions in any court of competent jurisdiction
pursuant to Code of Civil Procedure Section 736, whether commenced prior to or
after foreclosure of the lien of this Deed of Trust. Beneficiary or its agents,
representatives, and employees may also seek an injunction to cause Trustor to
xxxxx any action in violation of any Environmental Provision and may seek the
recovery of all costs, damages, expenses, fees, penalties, fines, judgments,
indemnification payments to third parties, and other out-of-pocket costs or
expenses actually incurred by Beneficiary (collectively, "Environmental Costs")
incurred or advanced by Beneficiary relating to the cleanup, remedy, or other
response action required by any Hazardous Substances Law, or any Hazardous
Substance Claim, or which Beneficiary believes necessary to protect the
Property. All Environmental Costs incurred by Beneficiary under this subsection
(including, without limitation, court costs, consultant fees, and attorney fees,
whether incurred in litigation and whether before or after judgment) will bear
interest at the Default Rate from the date of expenditure until those sums have
been paid in full. Beneficiary will be entitled to bid, at any trustee's or
foreclosure sale of the Property, the amount of the costs, expenses, and
interest in addition to the amount of other Indebtedness.
Section 8.9. Waive Lien.
Beneficiary or its agents, representatives, and employees may waive its
lien against the Property or any portion of it, including the Improvements and
the Personal Property, to the extent that the Property is found to be
environmentally impaired in accordance with Code of Civil Procedure Section
726.5, and to exercise all rights and remedies of an unsecured creditor against
Trustor and all of Trustor's assets and property for the recovery of any
Environmental Costs, including, but not limited to, seeking an attachment order
under Code of Civil Procedure Section
483.010. As between Beneficiary and Trustor, for purposes of Code of Civil
Procedure Section 726.5, Trustor will have the burden of proving that Trustor
or any related party (or any affiliate or agent of Trustor or any related
party) was not in any way negligent in permitting the Release or threatened
Release of the Hazardous Substances.
Section 8.10. Exception to Nonrecourse.
Trustor agrees that regardless of anything in this Deed of Trust or in the
Loan Documents, the Environmental Costs will be exceptions to any nonrecourse or
exculpatory provision of the Loan Documents, and Trustor will be fully and
personally liable for the Environmental Costs. That liability will not be
limited to the obligations secured by this Deed of Trust, and Trustor's
obligations will survive the foreclosure, deed in lieu of foreclosure, release,
reconveyance, or any other transfer of the Property or this Deed of Trust, for
acts or omissions of Trustor. For the purposes of any action brought under this
subsection, Trustor waives the defense of laches and any applicable statute of
limitations.
Section 8.11. Remedies Cumulative.
All remedies of Beneficiary provided for in this Deed of Trust are
cumulative and will be in addition to all other rights and remedies provided in
the other Loan Documents or provided by law, including any banker's lien and
right of offset. The exercise of any right or remedy by Beneficiary will not in
any way constitute a cure or waiver of default, will not invalidate any act done
pursuant to any notice of default, nor will it prejudice Beneficiary in the
exercise of any of its rights unless, in the exercise of those rights,
Beneficiary collects the total amount of the Indebtedness.
ARTICLE 9.
SECURITY AGREEMENT
Section 9.1. Grant of Security Interest.
Trustor also grants to Beneficiary a security interest in all of Trustor's
right, title, and interest now owned or later acquired to the following property
(collectively, "Collateral") now or later affixed to or located on the Property,
or used in connection with the operation of the Property or the Improvements and
all the proceeds of that property: the Personalty; the Fixtures; all machinery,
equipment, engines, appliances, and fixtures for generating or distributing air,
water, heat, electricity, light, fuel, or refrigeration, or for ventilating or
sanitary purposes, or for the exclusion of vermin or insects, or for the removal
of dust, refuse, or garbage; all wallbeds, wall safes, built-in furniture and
installations, shelving, lockers, partitions, doorstops, vaults, motors,
elevators, dumbwaiters, awnings, window shades, venetian blinds, light fixtures,
fire hoses and brackets and boxes for them, fire sprinklers, alarm systems,
draperies, drapery rods and brackets, mirrors, mantles, screens, linoleum,
carpets and carpeting, plumbing, bathtubs, sinks, basins, pipes, faucets, water
closets, laundry equipment, washers, dryers, iceboxes, refrigerators, heating
units, stoves, ovens, ranges, dishwashers, disposals, water heaters,
incinerators, furniture, fixtures, and furnishings; all communication systems;
all specifically designed installations and
furnishings; all building materials, supplies, and equipment now or later
delivered to the Property; all office equipment, including, without limitation,
all computers, computer systems, hardware and software, access codes, access
keys, computer programs, file names, typewriters, duplicating machines, word
processing equipment, adding machines, calculators, dictating equipment,
printing presses, and related equipment; all inventories and supplies,
including, without limitation, office supplies, soap, light bulbs, toilet paper,
and linens; all clocks, television sets, radios, and other electronic or
audio/video equipment; all podiums, microphones, movie and slide projectors and
screens, and other property relating to conference and convention facilities;
all security and cleaning deposits collected from any tenants or lessees of any
part of the Property, all deposits collected from purchasers pursuant to
contracts for sale of the Property or any portion of the Property; and, subject
to the other provisions of this Deed of Trust, all proceeds of any fire and
builders' risk insurance policy, or of any policy insuring the Property (and the
contents of the Improvements) against any other perils, all awards made in
eminent domain proceedings, or purchased in lieu of that, made with respect to
the Property, and any compensation, award, payment, or relief given by any
governmental agency or other source because of damage to the Property resulting
from earthquake, flood, windstorm, or any emergency or any other event or
circumstance. The specific enumerations in this Deed of Trust do not exclude the
general.
The security interest also includes all additions to, substitutions for,
changes in, or replacements of the whole or any part of these articles of
property, together with all contract rights of Trustor in construction
contracts, bonds, agreements for purchase and sale of the Property, all policies
of insurance arising out of the improvement or ownership of the Property, and
all accounts, contract rights, chattel paper, instruments, general intangibles,
and other obligations of any kind now or later existing, arising out of, or in
connection with the operation or development of the Property. The security
interest also includes all rights now or later existing in all security
agreements, leases, and other contracts securing or otherwise relating to any
accounts, contract rights, chattel paper, instruments, general intangibles, or
obligations; all causes of action and recoveries now or later existing for any
loss or diminution in value of the Property; all proceeds of any of the
Collateral; and, to the extent not otherwise included, all payments under
insurance (whether Beneficiary is the loss payee), or any indemnity, warranty,
or guaranty payable by reason of loss or damage to or otherwise with respect to
any of the Collateral.
Section 9.2. Remedies.
This Deed of Trust constitutes a security agreement with respect to the
Collateral in which Beneficiary is granted a security interest. Beneficiary has
all of the rights and remedies of a secured party under the California Uniform
Commercial Code as well as all other rights and remedies available at law or in
equity. Trustor agrees to execute and deliver on demand, and irrevocably
constitutes and appoints Beneficiary the attorney-in-fact of Trustor to execute,
deliver, and file, any security agreements, financing statements, continuation
statements, or other instruments that Beneficiary may request to impose,
perfect, or continue the perfection of the lien or security interest created by
this Deed of Trust. On the occurrence of any Event of Default (taking into
account any applicable period of grace or cure), Beneficiary will have the right
to sell at any public or private sales as permitted by applicable law any of the
Collateral that is personal property. Beneficiary will also have any other
rights and remedies, whether at law, in equity, or by
statute that are available to secured creditors. Any disposition may be
conducted by an employee or agent of Beneficiary or Trustee. Any Person,
including both Trustor and Beneficiary, will be eligible to purchase any part or
all of the Collateral at any disposition.
Section 9.3. Expenses.
Expenses of retaking, holding, and preparing for sale, selling, or the like
will be borne by Trustor and will include Beneficiary's and Trustee's attorney
fees and legal expenses. Trustor, on demand of Beneficiary, will assemble the
Collateral and make it available to Beneficiary at the Property, a place deemed
to be reasonably convenient to Beneficiary and Trustor. Beneficiary will give
Trustor at least ten (10) days' prior written notice of the time and place of
any public sale or other disposition of the Collateral or of the time of or
after which any private sale or any other intended disposition is to be made. If
the notice is sent to Trustor in the manner provided for the mailing of notices
in this Deed of Trust, it is deemed reasonable notice to Trustor.
Section 9.4. Fixture Filing.
(a) This Deed of Trust constitutes a financing statement filed as a fixture
filing in the Official Records of the County Recorder of the county in which the
Property is located with respect to all Fixtures included within the term
Property as used in this Deed of Trust and with respect to any goods,
Collateral, or other personal property that may now be or later become fixtures.
(b) It is understood and agreed that, to protect Beneficiary against the
effect of Uniform Commercial Code Section 9313, if any fixture owned by Trustor
on the Property, or any part of any fixture, is replaced or added to, or any new
fixture owned by Trustor is installed by Trustor, and in each case the fixture
has a cost or fair market value in excess of One Thousand Dollars ($1,000.00),
but not with respect to tenant improvement work made in the ordinary course of
business and the fixture is or may be subject to a security interest held by a
seller or any other party, the following will apply:
(i) Trustor or any owner of all or any part of the Property will,
before the replacement, addition, or installation of any fixture, obtain the
prior written approval of Beneficiary, and give Beneficiary written notice that
a security agreement with respect to the fixture has been or will be
consummated, and the notice will contain the following information:
(A) a description of the fixtures to be replaced, added to,
installed, or substituted;
(B) a recital of the location at which the fixtures will be
replaced, added to, installed, or substituted;
(C) a statement of the name and address of the holder and amount
of the security interest; and
(D) the date of the purchase of the fixtures.
Neither this subsection nor any consent by Beneficiary pursuant to this
subsection will constitute an agreement to subordinate any right of Beneficiary
in fixtures or other property covered by this Deed of Trust.
(ii) Beneficiary may at any time pay the balance due under the
security agreement and the amount paid will be:
(A) secured by this Deed of Trust and will be a lien on the
Property, enjoying the same priorities as this Deed of Trust,
(B) added to the amount of the Note or other obligation secured
by this Deed of Trust, and
(C) payable on demand with interest at the Default Rate from the
time of the payment; and if Trustor is in default for ten (10) days after
demand, the entire principal sum secured with all unpaid interest will, at the
Beneficiary's option, become immediately due, regardless of any contrary
provision in this Deed of Trust or the Note; or Beneficiary will have the
privilege of acquiring by assignment from the holder of the security interest
any contract rights, accounts receivable, chattel paper, negotiable or
nonnegotiable instruments, or other evidence of Trustor's indebtedness for the
fixtures, and, on acquiring these interests by assignment, will have the right
to enforce the security interest as an assignee, in accordance with the
California Uniform Commercial Code and other applicable law.
(iii) Whether Beneficiary has paid or taken an assignment of the
security interest, if at any time Trustor is in default for a period of ten (10)
days under the security agreement covering the fixtures, that default will be
considered a material breach of Trustor's covenants under this Deed of Trust,
and will, at Beneficiary's option, constitute a default under this Deed of
Trust, and the principal sum secured will, at Beneficiary's option, become
immediately due.
(iv) The provisions of subsections (ii) and (iii) above will not apply
if the goods that may become fixtures are of at least equivalent value and
quality as any property being replaced and if the rights of the party holding
the security interest have been expressly subordinated, at no cost to
Beneficiary, to the lien of this Deed of Trust in a manner satisfactory to
Beneficiary, including, without limitation, at Beneficiary's option, providing
to Beneficiary a satisfactory opinion of counsel that this Deed of Trust
constitutes a valid and subsisting first lien on the fixtures that is not
subordinate to the lien of the security interest under any applicable law,
including, without limitation, the provisions of Uniform Commercial Code Section
9313.
Section 9.5. Assignment of Agreements.
(a) As partial security for the Loan, Trustor sells, assigns, transfers,
sets over, and delivers to Beneficiary all of Trustor's right, title, and
interest in all agreements, permits, and contracts pertaining to the use or
operation of the Property, including, but not limited to, environmental impact
reports; negative declarations; map approvals; grading and construction permits;
conditional use permits; applications for all permits; management agreements;
all development rights in the Property that Trustor may now or later acquire
(including, without limitation, development rights arising in connection with
any action by a governmental entity, including, by way of illustration, but not
of limitation, inducement resolutions of county, municipal, or other
governmental entities); agreements with contractors, suppliers, and construction
managers; and agreements pertaining to the transfer of development rights or
permitted floor area under applicable laws or ordinances (collectively,
"Agreements"), as they may be amended or otherwise modified from time to time,
including, without limitation, the right of Trustor to terminate any of the
Agreements, to perform under them, and to compel performance and otherwise
exercise all remedies under them, together with the immediate and continuing
right to collect and receive all sums that may become due to Trustor, or which
Trustor may now or later become entitled to demand or claim, arising or issuing
out of the Agreements, including, without limitation, claims of Trustor for
damages arising out of breach of or default under any of the Agreements and all
rights of Trustor to receive proceeds of any insurance, indemnity, warranty, or
guaranty with respect to any of the Agreements. However, so long as no Event of
Default has occurred and is continuing, Trustor will have the right under a
license granted to collect and retain all sums that may become payable to
Trustor under the Agreements.
(b) Trustor covenants and agrees to punctually observe, perform, and
discharge the obligations, terms, covenants, conditions, and warranties to be
observed, performed, and discharged by it under the Agreements. Beneficiary,
upon an uncured Event of Default, at its option and upon written notice to
Trustor, will have the right to declare the assignment in this Section 9.5 to be
absolute, and, in addition, Beneficiary will have the complete right then or
later to exercise and enforce all of the rights and remedies provided by law.
(c) The acceptance by Beneficiary of the assignment in this Article 9.5,
with all the rights, powers, privileges, and authority granted will not, prior
to the exercise of Beneficiary's right to declare the assignment in this Article
9.5 to be absolute, obligate Beneficiary to assume any obligations under the
Agreements or to take any action under them, or to expend any money or incur any
expense or perform or discharge any obligation, duty, or liability under the
Agreements, or to assume any obligation or responsibility for the nonperformance
of the provisions by Trustor.
ARTICLE 10.
ASSIGNMENT OF LEASES AND RENTS
Section 10.1. Assignment.
Trustor irrevocably assigns to Beneficiary
(a) all of Trustor's right, title, and interest in all leases; licenses;
agreements relating to the management, leasing, or operation of the Property;
and other agreements of any kind relating to the use or occupancy of the
Property, whether now existing or entered into after the date of this Deed of
Trust ("Leases"), and
(b) the rents, issues, and profits of the Property, including, without
limitation, all amounts payable and all rights and benefits accruing to Trustor
under the Leases ("Payments"), for the purposes and on the terms and conditions
below.
The term Leases will also include all guarantees of and security for the
lessees' performance, and all amendments, extensions, renewals, or modifications
that are permitted. This is a present and absolute assignment, not an assignment
for security purposes only, and Beneficiary's right to the Leases and Payments
is not contingent on, and may be exercised without, possession of the Property.
Section 10.2. License.
Beneficiary confers on Trustor a license ("License") to collect and retain
the Payments as they become due until the occurrence of an uncured Event of
Default. Upon an uncured Event of Default, the License will be automatically
revoked and Beneficiary may collect and retain the Payments upon five business
days' notice and without taking possession of the Property. Trustor irrevocably
authorizes and directs the lessees under the Leases to rely on and comply with
any notice or demand by Beneficiary for the payment to Beneficiary of any rental
or other sums that may at any time become due under the Leases, or for the
performance of any of the lessees' undertakings under the Leases. The lessees
will have no right or duty to inquire as to whether any Default has actually
occurred or is then existing.
Section 10.3. Effect of Assignment.
The assignment will not impose on Beneficiary any duty to produce rents,
issues, or profits from the Property, or cause Beneficiary to be:
(a) a mortgagee-in-possession for any purpose;
(b) responsible for performing any of the obligations of the lessor under
any of the Leases; or
(c) responsible for any waste committed by lessees or any other parties,
any dangerous or defective condition of the Property, or any negligence in the
management, upkeep, repair, or control of the Property.
Section 10.4. Leasing Covenants.
Trustor covenants and agrees as follows:
(a) At Trustor's sole cost to:
(i) perform all obligations of the lessor under the Leases and enforce
performance by the lessees of their obligations under the Leases;
(ii) subject to the provisions of Section 10.4(b)(iv) below, enforce
all remedies available to Trustor in case of default by the lessees under any of
the Leases and prosecute and defend any action, arbitration, or other
controversy relating to any of the Leases or to Trustor's interest in any of the
Leases;
(iii) give Beneficiary prompt notice of any material default that
occurs under any of the Leases, whether by the lessees or Trustor;
(iv) exercise diligent, good-faith efforts to keep all portions of the
Property leased at all times and at rentals not less than the fair market rental
value;
(v) promptly upon execution, deliver to Beneficiary fully executed
counterpart originals of the Leases; and
(b) except with Beneficiary's prior written consent, not to:
(i) execute any other assignment relating to any of the Leases or the
Payments;
(ii) discount any rent or other sums due under the Leases or collect
them in advance, other than to collect rent one (1) month in advance of the time
when it becomes due;
(iii) terminate, modify, or amend any of the material terms of the
Leases or release or discharge the lessees from any obligations;
(iv) consent to any assignment or subletting by any lessee; or
(v) subordinate any of the Leases to any other deed of trust or
encumbrance.
Any attempted action in violation of the provisions of Section 10.4(b) will be
voidable at Beneficiary's election.
Section 10.5. Application of Rents.
Beneficiary, in its sole discretion, may apply, or require the application
of, all amounts received pursuant to the assignment to the payment of any one or
more of the Obligations in any order that Beneficiary may elect.
Section 10.6. Estoppel Certificates.
Within twenty (20) days after request by Beneficiary, Trustor will deliver
to Beneficiary and to any party designated by Beneficiary estoppel certificates
executed by Trustor and by each of the lessees, in recordable form, certifying:
(a) that the assignment and the Leases are in full force;
(b) the date of each lessee's most recent payment of rent;
(c) that there are no defenses or offsets outstanding, or stating those
claimed by Trustor or lessees under the assignment or the Leases,; and
(d) any other information reasonably requested by Beneficiary.
Section 10.7. Remedies.
In addition to any other remedies in this Deed of Trust, Beneficiary will
have the following rights and remedies upon the occurrence of an uncured Event
of Default:
(a) To receive the Payments and any other amounts arising or accruing under
the Leases or from the Property;
(b) To collect, xxx for, settle, compromise, and give releases for the
Payments and pursue any remedies for the enforcement of the Leases or Trustor's
rights under the Leases; and
(c) To take possession of the Property, and hold, manage, lease, and
operate it on any terms and for any period of time that Beneficiary may deem
proper and, either with or without taking possession of the Property, in its own
name, make from time to time all alterations, renovations, repairs, or
replacements that Beneficiary may deem proper.
Section 10.8. Definitions.
The terms lessor and lessors as used in this Deed of Trust will include all
owners, landlords, licensors, and other parties in a similar position with
respect to the Leases. The terms lessee and lessees will include any tenants and
licensees and any other parties in a similar position and will also include any
guarantors of or other obligors under the Leases.
ARTICLE 11.
MISCELLANEOUS
Section 11.1. Successor Trustee.
Beneficiary may remove Trustee or any successor trustee at any time and
appoint a successor trustee by recording a written substitution in the county
where the Property is located, or in any other manner permitted by law. Upon
that appointment, all of the powers, rights, and authority of Trustee will
immediately become vested in the successor.
Section 11.2. Change of Law.
If any law is passed, after the date of this Deed of Trust, that deducts
from the value of the Property, for the purposes of taxation, any lien on it, or
changes in any way the laws now in force
for the taxation of mortgages, deeds of trust, or debts secured by mortgage or
deed of trust (other than laws imposing taxes on income) or the manner of the
collection of any taxes so as to affect adversely and materially the rights of
Beneficiary as holder of the Note and Beneficiary under this Deed of Trust, the
Indebtedness will become due at Beneficiary's option, exercised by thirty (30)
days' notice to Trustor unless Trustor, within that thirty (30) day period, if
permitted by law, assumes the payment of any tax or other charge imposed on
Beneficiary for the period remaining until full payment by Trustor of the
Indebtedness.
Section 11.3. No Waiver.
No waiver by Beneficiary of any default or breach by Trustor will be
implied from any omission by Beneficiary to take action on account of that
default if the default persists or is repeated. Also, no express waiver will
affect any default other than the default in the waiver and the waiver will be
operative only for the time and to the extent stated. Waivers of any covenant,
term, or condition in this Deed of Trust will not be construed as a waiver of
any subsequent breach of the same covenant, term, or condition. The consent or
approval by Beneficiary for any act by Trustor requiring further consent or
approval will not be deemed to waive or render unnecessary the consent or
approval for any subsequent similar act.
Section 11.4. Abandonment.
Subject to any chattel mortgages, security agreements, or other liens on
title that may exist with the consent of Beneficiary, or any provided for in
this Deed of Trust, all Personalty that upon foreclosure of the Property is
owned by Trustor and is used in connection with the operation of the Property
will be deemed at Beneficiary's option to have become on that date a part of the
Property and abandoned to Beneficiary in its then condition.
Section 11.5. Notices.
All notices, advices, demands, requests, consents, statements,
satisfactions, waivers, designations, refusals, confirmations, or denials that
may be required or contemplated under this Deed of Trust for any party to serve
on or give to any other will be in writing, and, if not in writing, will not be
deemed to have been given. Also, they must be either personally served or sent
with return receipt requested by registered or certified mail with postage
(including registration or certification charges) prepaid in a securely enclosed
and sealed envelope as follows:
(a) If to Trustor, addressed to En Pointe Technologies, Inc., 000 Xxxxx
Xxxxxxxxx Xxxxxxxxx, 00xx Xxxxx, Xx Xxxxxxx, Xxxxxxxxxx 00000.
(b) If to Beneficiary, addressed to Habib Bank AG Zurich, 000 Xxxx Xxxxx
Xxxxxx, XX00, Xxx Xxxxxxx, Xxxxxxxxxx 00000.
Section 11.6. Survival.
The covenants and agreements in this Deed of Trust will bind and inure to
the benefit of Beneficiary and Trustor and their successors and assigns. It is
agreed that Beneficiary may assign to or grant a participation in any one or
more lenders, free from any right of counterclaim, recoupment, or setoff by
Trustor, Beneficiary's rights and obligations in whole or in part under the Loan
Documents. Nothing in this Article 11.6 is intended to limit other provisions in
the Loan Documents that by their terms survive the repayment of the Indebtedness
or the termination of any Loan Document.
Section 11.7. Severability.
If any term, provision, covenant, or condition of this Deed of Trust or any
application of it is held by a court of competent jurisdiction to be invalid,
void, or unenforceable, in whole or in part, all terms, provisions, covenants,
and conditions of this Deed of Trust and all applications of it not held
invalid, void, or unenforceable will continue in full force and will not be
affected, impaired, or invalidated.
Section 11.8. References to Foreclosure.
References in this Deed of Trust to foreclosure and related phrases are
references to the appropriate procedure in connection with Trustee's private
power of sale, any judicial foreclosure proceeding, and any deed given in lieu
of foreclosure.
Section 11.9. Joinder of Foreclosure.
If Beneficiary holds any other or additional security for the payment of
any Indebtedness or performance of any Obligation, its sale or foreclosure, on
any default in the payment or performance, in Beneficiary's sole discretion, may
be prior to, subsequent to, or joined or otherwise contemporaneous with any sale
or foreclosure. In addition to the rights in this Deed of Trust specifically
conferred, Beneficiary, at any time and from time to time, may exercise any
right or remedy now or later given by law to beneficiaries under deeds of trust
generally, or to the holders of any obligations of the kind secured.
Section 11.10. Rights of Beneficiary and Trustee.
At any time and from time to time, without liability and upon five business
days' notice, and without releasing or otherwise affecting the liability of any
person for payment of any Indebtedness,
(a) Beneficiary, at its sole discretion and only in writing, may extend the
time for or release any Person now or later liable for payment of any
Indebtedness, or accept or release additional security, or subordinate the lien
or charge of this Deed of Trust, or
(b) Trustee, on written request of Beneficiary and presentation of the
Note, any additional notes secured by this Deed of Trust, and this Deed of Trust
for endorsement, may reconvey any
part of the Property, consent to the making of any map or plat of it, join in
granting any easement on it, or join in any agreement of extension or
subordination.
On Beneficiary's written request and surrender of the Note, any additional notes
secured by this Deed of Trust, and this Deed of Trust to Trustee for
cancellation, and on payment to Trustee of its fees and expenses, Trustee will
reconvey without warranty the then trust property. The recitals in any
reconveyance will be conclusive proof of the truthfulness of them, and the
grantee in any reconveyance may be described as the person legally entitled.
Section 11.11. Copies.
Trustor will promptly give to Beneficiary copies of all
(a) notices of violation that Trustor receives from any governmental agency
or authority, and
(b) notices of default that Trustor receives under any agreement relating
to the borrowing of money by Trustor from any Person.
Section 11.12. ERISA Compliance.
Trustor will at all times comply with the provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), with respect to
any retirement or other employment benefit plan to which it is a party as
employer. As soon as possible after Trustor knows, or has reason to know, that
any Reportable Event (defined in ERISA) with respect to any plan of Trustor has
occurred, it will furnish to Beneficiary a statement in writing setting forth
details about the Reportable Event and the action, if any, that Trustor proposes
to take, together with a copy of the notice of the Reportable Event furnished to
the Pension Benefit Guaranty Corporation. In addition, if at any time the loan
evidenced by the Note is deemed in whole or in part to be a transaction
prohibited by the provisions of ERISA, Trustor will immediately reimburse
Beneficiary on demand for all taxes levied against or costs incurred by
Beneficiary or Trustee by reason of the Reportable Event.
Section 11.13. Subordination.
At the option of Beneficiary, this Deed of Trust will become subject and
subordinate, in whole or in part (but not with respect to priority of
entitlement to any insurance proceeds, damages, awards, or compensation
resulting from damage to the Property or condemnation or exercise of power of
eminent domain), to any contracts of sale or any leases of the Property on the
execution by Beneficiary and recording of a unilateral declaration to that
effect in the official records of the county and state where the Property is
located. Beneficiary may require the issuance of any title insurance
endorsements to the Title Policy in connection with any subordination that
Beneficiary, in its judgment, determines are appropriate, and Trustor will be
obligated to pay any cost or expense incurred in connection with the issuance.
Section 11.14. No Merger.
So long as any of the Indebtedness remains unpaid or Beneficiary has any
further obligation under the Loan Documents, unless Beneficiary otherwise
consents in writing, the fee estate of Trustor in the Property or any part of it
will not merge, by operation of law or otherwise, with any leasehold or other
estate in the Property or any part of it, but will always be kept separate and
distinct, regardless of the union of the fee estate and the leasehold or other
estate in Trustor or any other Person.
Section 11.15. Inspection of Property.
Beneficiary is authorized by itself or its agents, employees, or workers,
to enter at any reasonable time on prior written notice to Trustor on any part
of the Property for the purpose of inspecting it, and for the purpose of
performing any of the acts it is authorized to perform under the terms of this
Deed of Trust. Trustor agrees to cooperate with Beneficiary to facilitate any
inspection.
Section 11.16. Performance by Trustor.
Trustor will faithfully perform every covenant to be performed by Trustor
under any lien or encumbrance, including, without limiting the generality of
this Deed of Trust, mortgages, deeds of trust, leases, declarations or
covenants, conditions and restrictions, and other agreements that affect the
Property, in law or in equity, that Beneficiary reasonably believes may be prior
and superior to or on a parity with the lien or charge of this Deed of Trust. A
breach of or a default under any lien or encumbrance that exists after any
applicable grace period in the pertinent instrument has expired without that
breach or default having been cured, will constitute an Event of Default under
this Deed of Trust. If Trustor fails to do so, Beneficiary, without demand or
notice and in its sole judgment, may do any things required by Trustor by any of
the provisions in this Deed of Trust and incur and pay expenses in connection
with that. Nothing in this section affects Trustor's obligations pursuant to
Sections 5.2 and 5.3 of this Deed of Trust or limits Beneficiary's rights.
Section 11.17. Personalty Security Instruments.
Trustor agrees that if Beneficiary at any time holds additional security
for any obligations secured by this Deed of Trust, it may enforce the terms of
it or otherwise realize on it, at its option, either before or concurrently or
after a sale is made under this Deed of Trust, and may apply the proceeds on the
Indebtedness secured without affecting the status or waiving any right to
exhaust any other security, including the security under this Deed of Trust, and
without waiving any breach or default or any right or power, whether exercised
under this Deed of Trust or in any other security.
Section 11.18. Suits to Protect Property.
Trustor agrees to appear in and defend any action or proceeding purporting
to affect the security of this Deed of Trust or any additional or other security
for the obligations secured, the interest of Beneficiary or the rights, powers,
or duties of Trustee, and to pay all costs and expenses, including, without
limitation, cost of evidence of title and attorney fees, in any action or
proceeding in which Beneficiary or Trustee may appear or be made a party,
including, but not limited to, foreclosure or other proceeding commenced by
those claiming a right to any part of the Property under subordinate liens, in
any action to partition or condemn all or part of the Property, whether pursued
to final judgment, and in any exercise of the power of sale in this Deed of
Trust, whether the sale is actually consummated.
Section 11.19. Junior Liens.
Trustor agrees:
(a) that as of the date of this Deed of Trust there are no encumbrances to
secure debts junior to this Deed of Trust and
(b) that there are to be none as of the date when this Deed of Trust
becomes of record.
Section 11.20. Further Advances.
On the request of Trustor or its permitted successors in ownership of the
Land, Beneficiary may, at its option, at any time before full payment of the
Indebtedness, make further advances to Trustor or the successors in ownership,
with interest and late charges to be secured by this Deed of Trust. However, the
amount of principal secured by this Deed of Trust and remaining unpaid will not
at the time of and including any advance exceed the original principal sum
secured. Also, if Beneficiary, at its option, makes a further advance or
advances, Trustor or the successors in ownership agree to execute and deliver to
Beneficiary a note, payable on or before the maturity of the Indebtedness
secured and bearing any other terms that Beneficiary will require.
Section 11.21. Charges for Statements.
Trustor agrees to pay Beneficiary's reasonable charge, to the maximum
amount permitted by law, for any statement regarding the obligations secured by
this Deed of Trust requested by Trustor or on its behalf.
Section 11.22. Entire Agreement.
This Deed of Trust and the other Loan Documents set forth the entire
understanding between Trustor and Beneficiary and they will not be amended
except by a written instrument duly executed by each of Trustor and Beneficiary.
Any previous representations, warranties, agreements, and understandings among
the parties regarding the subject matter of the Loan or the Loan Documents,
whether written or oral, are superseded by this Deed of Trust and the other Loan
Documents.
Section 11.23. Incorporation.
All terms of the Loan Documents are incorporated in this Deed of Trust by
this reference. All persons who may have or acquire an interest in the Property
will be deemed to have notice of the terms of the Loan Documents and to have
notice, if provided for, that the rate of interest on one or more Obligations
may vary from time to time.
Section 11.24. Waiver of Marshaling Rights.
Trustor, for itself and for all parties claiming through or under Trustor,
and for all parties who may acquire a lien on or interest in the Property,
waives all rights to have the Property or any other property that is now or
later may be security for any Obligation ("Other Property") marshaled on any
foreclosure of this Deed of Trust or on a foreclosure of any other security for
any of the Obligations. Beneficiary will have the right to sell, and any court
in which foreclosure proceedings may be brought will have the right to order a
sale of, the Property and any of the Other Property as a whole or in separate
parcels, in any order that Beneficiary may designate.
Section 11.25. Acceptance of Trust; Powers
and Duties of Trustee.
Trustee accepts this trust when this Deed of Trust is recorded. From time
to time on written request of Beneficiary and presentation of this Deed of Trust
for endorsement, and without affecting the personal liability of any person for
payment of any indebtedness or the performance of any obligations, Trustee may,
without liability and without notice:
(a) reconvey all or any part of the Property;
(b) consent to the making of any map or plat; and
(c) join in any grant of easement, any declaration of covenants,
conditions, and restrictions, any extension agreement, or any agreement
subordinating the lien or charge of this Deed of Trust. Except as may be
required by applicable law, Trustee or Beneficiary may from time to time apply
to any court of competent jurisdiction for aid and direction in the execution of
the trust and the enforcement of the rights and remedies available, and may
obtain orders or decrees directing, confirming, or approving acts in the
execution of the trust and the enforcement of the remedies. Trustee has no
obligation to notify any party of any pending sale or any action or proceeding,
including, without limitation, actions in which Trustor, Beneficiary, or Trustee
will be a party, unless held or commenced and maintained by Trustee under this
Deed of Trust. Trustee will not be obligated to perform any act required of it
under this Deed of Trust unless the performance of the act is requested in
writing and Trustee is reasonably indemnified and held harmless against any
loss, cost, liability, or expense.
Section 11.26. Releases, Extensions,
Modifications, and Additional Security.
Upon five days' written notice to or the consent, approval, or agreement of
any persons or entities having any interest at any time in the Property or in
any manner obligated under the Obligations ("Interested Parties"), Beneficiary
may, from time to time, release any person or entity from liability for the
payment or performance of any Obligation; take any action or make any agreement
extending the maturity or otherwise altering the terms or increasing the amount
of any Obligation; or accept additional security or release the Property or
other security for any Obligation. None of these actions will release or reduce
the personal liability of any of the Interested Parties, or release or impair
the lien of this Deed of Trust, or the priority of it on the Property. However,
no action taken or agreement made by Beneficiary to extend the maturity or
otherwise alter the terms or increase the amount of any Obligation will be
binding on Trustor without Trustor's consent.
Section 11.27. Reconveyance.
Upon the payment and performance of all Obligations, including, without
limitation, Beneficiary's receipt of all sums owing and outstanding under the
Note, Beneficiary will deliver to Trustee a written request for reconveyance,
and will surrender to Trustee for cancellation this Deed of Trust and any note
or instrument evidencing the Obligations. However, Beneficiary will have no
obligation to deliver the written request and documents until Beneficiary has
been paid by Trustor, in immediately available funds, all escrow, closing, and
recording costs, the costs of preparing and issuing the reconveyance, and any
trustee's or reconveyance fees. On Trustee's receipt of the written request by
Beneficiary and the documents, Trustee will reconvey, without warranty, the
Property or that portion then held. To the extent permitted by law, the
reconveyance may describe the grantee as the person or persons legally entitled
and the recitals of any matters or facts in any reconveyance will be conclusive
proof of the truthfulness of them. Neither Beneficiary nor Trustee will have any
duty to determine the rights of persons claiming to be rightful grantees of any
reconveyance. When the Property has been fully reconveyed, the last reconveyance
will operate as a reassignment of all future rents, issues, and profits of the
Property to the person legally entitled.
Section 11.28. Subrogation.
Beneficiary will be subrogated to the lien of all encumbrances, whether
released of record, paid in whole or in part by Beneficiary pursuant to this
Deed of Trust, or by the proceeds of any loan secured by this Deed of Trust.
Section 11.29. Obligations of Trustor,
Joint and Several.
If more than one person has executed this Deed of Trust as Trustor, the
obligations of all those persons will be joint and several.
Section 11.30. Recourse to Separate Property.
Any married person who executes this Deed of Trust as a Trustor agrees that
any money judgment that Beneficiary or Trustee obtains pursuant to the terms of
this Deed of Trust or any other obligation of that married person secured by
this Deed of Trust may be collected by execution on that person's separate
property, and any community property of which that person is a manager.
Section 11.31. Rules of Construction.
When the identity of the parties or other circumstances make it
appropriate, the singular number includes the plural.
Section 11.32. Successors in Interest.
The terms, covenants, and conditions in this Deed of Trust will be binding
on and inure to the benefit of the heirs, successors, and assigns of the
parties. However, this section does not waive the provisions of Article 6.1.
Section 11.33. No Offset.
Trustor will pay to Beneficiary all amounts owing under the Note, this Deed
of Trust, or any of the other Obligations without deduction or offset of any
kind.
Section 11.34. Governing Law.
The parties expressly agree that this Deed of Trust (including, without
limitation, all questions regarding permissive rates of interest) will be
governed by or construed in accordance with the laws of California and federal
law, where applicable.
In Witness Whereof, Trustor has executed this Deed of Trust as of the day
and year first above written.
EN POINTE TECHNOLOGIES, INC., a Delaware
corporation
By:
--------------------------
PROMISSORY NOTE SECURED BY DEED OF TRUST
Los Angeles, California
October __, 1997
In consideration of a loan from HABIB BANK AG ZURICH (hereinafter "Lender")
the undersigned (hereinafter "Borrower"), Borrower hereby promises to pay to the
order of Lender at its office in Los Angeles, California, or at any other place
that may be designated in writing by Lender, in lawful money of the United
States of America, the sum of four million dollars ($4,000,000.00), plus any and
all interest thereon as stated herein. The unpaid balance of the loan will bear
interest at the rate of the National Prime Rate, which at the time of execution
of this Promissory Note is 8.50% per annum, and which is based on the Prime Rate
published in the Wall Street Journal, plus 0.25%, calculated on the basis of a
360 day year and the number of days elapsed.
Principal and interest shall be paid monthly and due monthly commencing
thirty days from the date of this Note. The amount of the payments shall be
determined by a fifteen-year amortization of the original amount of the loan.
The first such payment shall be in the amount of $39,977.95. All remaining
principal and any accrued unpaid interest shall be due on October 31, 2007
("Maturity Date").
This Note is secured by the Deed of Trust, Security Agreement, and Fixture
Filing, with Assignment of Rents and Agreements of the same date as this Note,
executed by Borrower, as trustor, in favor of Lender, as beneficiary ("Deed of
Trust"), and encumbering the real property described in the Deed of Trust
("Property"). The holder of this Note will be entitled to the benefits of the
security provided by the Deed of Trust and will have the right to enforce the
covenants and agreements of Borrower contained in the Deed of Trust. This Note
is nonrecourse, and Borrower has no liability for any deficiency following sale
of the Property.
From and after the Maturity Date, or an earlier date on which all sums
owing under this Note become due by acceleration or otherwise, all sums owing
under this Note will bear interest until paid in full at a rate equal to three
percent (3%) per annum in excess of the rate of interest specified above
("Default Rate").
All payments on this Note will be applied first to the payment of any
costs, fees, late charges, or other charges incurred in connection with the
indebtedness evidenced by this Note; next, to the payment of accrued interest;
then to the reduction of the principal balance; or in any other order that
Lender requires. Lender shall initially advance the sum of three million two
hundred ninety thousand dollars ($3,290,000.00) and shall fund the balance of
seven hundred ten thousand dollars ($710,000.00) upon completion of the
improvements at the property that is security for the loan. Monthly payments
shall be based upon the amortization of a four million dollar loan, but
allocation of principal and interest shall be based upon the amount of principal
actually advanced, and shall be calculated on the basis of a 360 day year and
the number of actual days elapsed.
If:
(a) Borrower fails to pay when due any sums payable under this Note;
(b) an uncured Event of Default (defined in the Deed of Trust) occurs;
or
(c) any other event or condition occurs that, under the terms of the
Deed of Trust, gives rise to a right of acceleration of sums owing under this
Note,
then Lender, at its sole option, will have the right to declare all sums owing
under the Note immediately due. However, if any document related to this Note
provides for the automatic acceleration of payment of sums owing under this
Note, all sums owing will be automatically due in accordance with the terms of
that document.
Borrower will have the right to pay, without penalty or premium, on any
monthly payment date, all or any portion of the outstanding principal amount of
this Note prior to the Maturity Date. Lender will apply all prepayments first
to the payment of any costs, fees, late charges, or other charges incurred in
connection with the indebtedness evidenced by this Note; next, to the payment of
accrued interest; then to the outstanding principal amount of this Note in
inverse order of maturity, or, at the option of Lender, in the regular order of
maturity; or in any other order that Lender requires.
Borrower will pay to Lender all sums owing under this Note without
deduction, offset, or counterclaim of any kind, provided however that Borrower
does not waive the right to assert any counterclaim by way of a judicial action.
The relationship of Borrower and Lender under this Note is solely that of
borrower and lender, and the loan evidenced by this Note and secured by the Deed
of Trust will in no manner make Lender the partner or joint venturer of
Borrower.
If any attorney is engaged by Lender to enforce or construe any provision
of this Note, the Deed of Trust, or the other Loan Documents (defined in the
Deed of Trust) or as a consequence of any uncured Event of Default, with or
without the filing of any legal action or proceeding, then Borrower will
immediately pay to Lender on demand all reasonable attorney fees and other costs
incurred by Lender, together with interest from the date of the demand until
paid at the Default Rate.
No previous waiver or failure or delay by Lender in acting with respect to
the terms of this Note, the Deed of Trust, or the other Loan Documents will
constitute a waiver of any breach, default, or failure of condition under this
Note, the Deed of Trust, or the other Loan Documents. A waiver of any term of
this Note, the Deed of Trust, or the other Loan Documents must be made in
writing and will be limited to the express written terms of the waiver. If
there are any inconsistencies between the terms of this Note and the terms of
any of the other Loan Documents, the terms of this Note will prevail.
All notice required or permitted in connection with this Note will be in
writing and will be given at the place and in the manner provided in the Deed of
Trust for the giving of notices.
The persons executing this instrument represent and confirm that this loan
and the related Deed of Trust are duly authorized by Borrower. Borrower waives
presentment; demand; notice of dishonor; notice of default or delinquency;
notice of acceleration; notice of protest and nonpayment; notice of costs,
expenses, or losses and interest; notice of interest on interest and
late charges; and diligence in taking any action to collect any sums owing under
this Note or in proceeding against any of the rights or interests to properties
securing payment of this Note. Time is of the essence with respect to every
provision of this Note. This Note will be construed and enforced in accordance
with California law, except to the extent that Federal laws pre-empt state law,
and all persons and entities in any manner obligated under this Note consent to
the jurisdiction of any Federal or State Court within California having proper
venue and also consent to service of process by any means authorized by
California or Federal law.
EN POINTE TECHNOLOGIES, INC. a Delaware
corporation
By
----------------------------
