After recording, please return by mail to:
LOEB & LOEB LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx, Esq. Recorder's Use
DEED OF TRUST, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY
AGREEMENT AND FIXTURE FILING made as of the 22nd day of July,
2005, by AMERICAN WATER STAR, INC., a Nevada corporation, having
a mailing address of 0000 X. Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx
Xxxxx, Xxxxxx, (the "Grantor" or "Trustor"), to Chicago Title
Insurance Company, having a mailing address of 0000 Xxxxx 00xx
Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000 (the "Trustee") for
the benefit of LAURUS MASTER FUND, LTD., having a mailing address
of 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx (the
"Beneficiary").
WITNESSETH, pursuant to a certain Securities Purchase
Agreement dated as of October 26, 2004 by and between the Grantor
and the Beneficiary (the `Purchase Agreement'), the Grantor
agreed to sell to the Beneficiary and Beneficiary agreed to
purchase from the Grantor a note in the aggregate principal
amount of $5,000,000 (the "Original Note"). The Original Note
shall mature on October 26, 2007 (the "Maturity Date").
WITNESSETH, certain events of default have occurred
under the Purchase Agreement and pursuant to a certain
Forbearance Agreement (the "Forbearance Agreement") dated as of
the date hereof between the Grantor and the Beneficiary, the
Beneficiary has agreed to forbear from exercising certain of its
rights and remedies under the Purchase Agreement and the Original
Note.
WITNESSETH, in connection with the execution of the
Forbearance Agreement, the Grantor has agreed to make and the
Beneficiary has agreed to receive a note in favor of the
Beneficiary in the original principal amount of One Million Two
Hundred Eighty-Six Thousand Ninety-Eight and 61/100
($1,286,098.61) (the "Additional Note", together with the
Original Note, collectively, the "Notes") which amount represents
all accrued but unpaid interest, fees and expenses owing by the
Grantor to the Beneficiary pursuant to the terms of the Purchase
Agreement and the Original Note.
WITNESSETH, that to secure the payment of all amounts
due and owing under the Notes, the Purchase Agreement and the
Related Agreements (as defined in the Purchase Agreement) as said
Notes, Purchase Agreement and Related Agreements may be
hereinafter modified, amended, extended, renewed or substituted
for, and any and all sums, amounts and expenses paid hereunder or
thereunder by the Beneficiary according to the terms hereof and
all other obligations and liabilities of the Grantor under this
Deed of Trust, the Notes, the Purchase Agreement and the Related
Agreements together with all interest on the said indebtedness,
obligations, liabilities, sums, amounts and expenses and any and
all other obligations and liabilities now due and owing or which
may hereafter be or become due and owing by the Grantor or any
guarantor of the Grantor to the Beneficiary (all of the aforesaid
are hereinafter collectively, the `Indebtedness'), the Grantor,
as hereinafter provided, hereby grants, bargains, sells,
warrants, conveys, alienates, remises, releases, assigns, sets
over and confirms to the Trustee and grants to the Trustee a
security interest in:
I. All of the right, title and interest of the
Grantor in and to that certain lot, piece or parcel of land (the
`Real Property') more particularly described as on Schedule `A'
annexed hereto and made a part hereof; and
II. All of the right, title and interest of the
Grantor in and to the buildings and improvements (hereinafter,
collectively, together with all building equipment, the
`Improvements') now or hereafter located on the Real Property and
all of its right, title and interest, if any, in and to the
streets and roads abutting the Real Property to the center lines
thereof, and strips and gores within or adjoining the Real
Property, the air space and right to use said air space above the
Real Property, all rights of ingress and egress by motor vehicles
to parking facilities on or within the Real Property, all
easements now or hereafter affecting the Real Property or the
Improvements, all royalties and all rights appertaining to the
use and enjoyment of the Real Property or the Improvements,
including, without limitation, alley, drainage, crop, timber,
agricultural, horticultural, mineral, water, oil and gas rights;
and
III. All of the right, title and interest of the
Grantor in and to all fixtures and articles of personal property
and all appurtenances and additions thereto and substitutions or
replacements thereof, now or hereafter attached to, or contained
in, the Real Property and/or the Improvements or placed on any
part thereof, though not attached thereto, including, but not
limited to, all screens, awnings, shades, blinds, curtains,
draperies, carpets, rugs, furniture and furnishings, heating,
lighting, plumbing, ventilating, air conditioning, refrigerating,
incinerator and/or compacting and elevator plants, stoves,
ranges, vacuum cleaning systems, call systems, sprinkler systems
and other fire prevention and extinguishing apparatus and
materials, motors, machinery, pipes, appliances, equipment,
fittings and fixtures, and the trade name, good will and books
and records relating to the business operated on the Real
Property and/or the Improvements. Without limiting the foregoing,
the Grantor hereby grants to the Beneficiary a security interest
in all of its present and future `equipment' and `general
intangibles' (as said quoted terms are defined in the Uniform
Commercial Code of the State wherein the Real Property and/or the
Improvements are located) and the Beneficiary shall have, in
addition to all rights and remedies provided herein, and in any
other agreements, commitments and undertakings made by the
Grantor to the Beneficiary, all of the rights and remedies of a
`secured party' under the said Uniform Commercial Code. To the
extent permitted under applicable law, this Deed of Trust shall
be deemed to be a `security agreement' (as defined in the
aforesaid Uniform Commercial Code). If the lien of this Deed of
Trust is subject to a security interest covering any such
personal property, then all of the right, title and interest of
the Grantor in and to any and all such property is hereby
assigned to the Beneficiary, together with the benefits of all
deposits and payments now or hereafter made thereon by the
Grantor; and
IV. All of the right, title and interest of the
Grantor in and to all leases, lettings and licenses of the Real
Property, the Improvements and/or any other property or rights
encumbered or conveyed hereby, or any part thereof, now or
hereafter entered into and all right, title and interest of the
Grantor thereunder, including, without limitation, cash and
securities deposited thereunder, the right to receive and collect
the rents, issues and profits payable thereunder and the right to
enforce, whether by action at law or in equity or by other means,
all provisions, covenants and agreements thereof; and
V. All right, title and interest of the Grantor in
and to all unearned premiums, accrued, accruing or to accrue
under insurance policies now or hereafter obtained by the Grantor
and all proceeds of the conversion, voluntary or involuntary, of
the Real Property, the Improvements and/or any other property or
rights encumbered or conveyed hereby, or any part thereof, into
cash or liquidated claims, including, without limitation,
proceeds of hazard and title insurance and all awards and
compensation heretofore and hereafter made to the present and all
subsequent owners of the Real Property, the Improvements and/or
any other property or rights encumbered or conveyed hereby by any
governmental or other lawful authority for the taking by eminent
domain, condemnation or otherwise, of all or any part of the Real
Property, the Improvements and/or any other property or rights
encumbered or conveyed hereby or any easement therein, including,
but not limited to, awards for any change of grade of streets;
and
VI. All right, title and interest of the Grantor in
and to all extensions, improvements, betterments, renewals,
substitutions and replacements of and all additions and
appurtenances to the Real Property, the Improvements and/or any
other property or rights encumbered or conveyed hereby, hereafter
acquired by or released to the Grantor or constructed, assembled
or placed by the Grantor on the Real Property, the Improvements
and/or any other property or rights encumbered or conveyed
hereby, and all conversions of the security constituted thereby
which, immediately upon such acquisition, release, construction,
assembling, placement or conversion as the case may be, and in
each such case without any further mortgage, conveyance,
assignment or other act by the Grantor, shall become subject to
the lien of this Deed of Trust as fully and completely, and with
the same effect, as though now owned by the Grantor and
specifically described herein (the Real Property and the
Improvements, together with the fixtures and other property,
rights, privileges and interests encumbered or conveyed hereby
hereinafter, collectively, the `Premises').
TO HAVE AND TO HOLD the Premises unto the Trustee and
his heirs, successors and assigns forever.
IN TRUST, to secure the payment in full to the
Beneficiary of the Indebtedness, and the performance of all
covenants and agreements in the Notes and this Deed, whereupon
this Deed of Trust shall cease and be void and the Premises shall
be released at the cost of the Grantor.
AND the Grantor covenants and agrees as follows:
ARTICLE I
Representations and Warranties of the Grantor
The Grantor represents and warrants to the Beneficiary
as follows:
Section 1.01. Title to the Premises. (i) The right, title and
interest of the Grantor constitutes good, marketable and
insurable title to the Premises free and clear of all liens other
than those set forth on Schedule A attached hereto; (ii) the
Grantor has full power and lawful authority to encumber the
Premises in the manner and form set forth hereunder; (iii) the
Grantor owns all fixtures and articles of personal property now
or hereafter comprising part of the Premises, subject to the
rights of space tenants in and to any such fixtures, personal
property or installations, including any substitutions or
replacements thereof free and clear of all liens and claims other
than the matters set forth in this Section; (iv) this Deed of
Trust is and will remain a valid and enforceable first lien on
the Premises; and (v) the Grantor will preserve such title, and
will forever warrant and defend the validity and priority of the
lien hereof against the claims of all persons and parties
whatsoever.
Section 1.02. Deed of Trust Authorized. The execution and
delivery of this Deed of Trust and the Notes have been duly
authorized by the directors of the Grantor and there is no
provision in the certificate of incorporation or by-laws of the
Grantor requiring further consent for such action by any other
entity or person. The Grantor is duly organized, validly existing
and is in good standing under the laws of the state of its
formation, and has (i) all necessary licenses, authorizations,
registrations, permits and/or approvals and (ii) full power and
authority to own its properties and carry on its business as
presently conducted and the execution and delivery by it of, and
performance of its obligations under, this Deed of Trust and the
Notes will not result in the Grantor being in default under any
provision of its certificate of incorporation or by-laws or of
any mortgage, lease, credit or other agreement to which it is a
party or which affects it or the Premises, or any part thereof.
Section 1.03. Flood Insurance Status. The Premises are not
located in an area identified by the Secretary of Housing and
Urban Development as an area having special flood hazards
pursuant to the terms of the National Flood Insurance Act of
1968, or the Flood Disaster Protection Act of 1973, as same may
have been amended to date.
Section 1.04. Operation of the Premises. (i) The Grantor has
all necessary certificates, licenses, authorizations,
registrations, permits and/or approvals necessary for the
operation of the Premises or any part thereof, including but not
limited to, a Permanent Certificate of Occupancy and, if
applicable, a Board of Fire Underwriters Certificate for the
Improvements and all required environmental permits, all of which
as of the date of the signing hereof are in full force and effect
and not, to the knowledge of the Grantor, subject to any
revocation, amendment, release, suspension, forfeiture or the
like, (ii) the present use and/or occupancy of the Premises
and/or Improvements does not conflict with or violate any such
certificate, license, authorization, registration, permit and/or
approval, or any applicable law, ordinance, statute, rule, order,
requirement or regulation and (iii) the Grantor has delivered to
the Beneficiary, prior to the signing hereof, duplicate originals
or appropriately certified copies of all such certificates,
licenses, authorizations, registrations, permits and/or
approvals.
ARTICLE II
Covenants of the Grantor
Section 2.01. Payment of the Indebtedness. The Grantor will
punctually pay the Indebtedness in same day funds as provided
herein and in the Notes, all in the coin and currency of the
United States of America which is legal tender for the payment of
public and private debts.
Section 2.02. Maintenance of the Improvements.
(i) The Grantor shall maintain the Improvements in good
repair, shall comply with the requirements of any governmental authority
claiming jurisdiction over the Premises within the lesser of
thirty (30) days after an order (an `Order') containing such
requirement has been issued by any such authority (unless such
requirement cannot be complied with within such thirty (30) day
period, in which event Grantor shall have such longer period as
necessary to cause compliance provided, however, that Grantor
shall promptly commence and diligently prosecute to completion
such compliance and provided, further, that such period shall not
exceed the time required pursuant to the terms of such Order) or
the time required pursuant to the terms of such Order and shall
permit the Beneficiary to enter upon the Improvements and inspect
the Improvements at all reasonable hours and without prior
notice. The Grantor shall not, without the prior written consent
of the Beneficiary, threaten, commit, permit or suffer to occur
any waste, material alteration, demolition or removal of the
Improvements or any part thereof; provided, however, that
fixtures and articles of personal property owned by Grantor may
be removed from the Improvements if the Grantor concurrently
therewith replaces same with equivalent items which do not reduce
the value of the Premises or the Improvements, free of any lien,
charge or claim superior to the lien and/or security interest
created hereby.
(ii) Nothing in this Section 2.02 shall require the compliance
by the Grantor with any Order so long as (a) the failure so to do
shall not be a default or event of default under any deed of
trust, mortgage or security agreement affecting the Premises, any
part thereof or interest therein, (b) the failure so to do shall
not result in the voiding, rescission or invalidation of the
certificate of occupancy or any other license, certificate,
permit or registration in respect of the Premises, (c) the
failure so to do shall not prevent, hinder or interfere with the
lawful use and occupancy of the entirety of the Improvements for
their present use and occupancy, (d) the failure so to do shall
not void or invalidate any insurance maintained by the Grantor in
respect of the Premises, or result in an increase of any premium
therefor or a decrease in any coverage provided thereby, and (e)
the Grantor in good faith and at its own expense shall contest
the Order or the validity thereof by appropriate legal
proceedings, which proceedings must operate to prevent (1) the
occurrence of any of the events described in the preceding
clauses (a) through (d) of this paragraph (ii) and (2) the
collection or other realization on any sums due or payable as a
consequence of the Order, the sale of any lien arising in respect
of the Order, and/or the sale or forfeiture of the Premises, any
part thereof or interest therein, or the sale of any lien
connected therewith; provided that during such contest the
Grantor shall, at the option of the Beneficiary, provide security
satisfactory to the Beneficiary assuring the discharge of the
Grantor's obligations hereunder and of any interest, charge,
fine, penalty, fee or expense arising from or incurred as a
result of such contest; and provided further if at any time
compliance with any obligation imposed upon the Grantor by the
Order shall become necessary to prevent (1) the occurrence of any
of the events described in clauses (a) through (d) of this
paragraph (ii) or (2) the delivery of a deed conveying the
Premises or any portion thereof or interest therein because of
noncompliance, or the sale of a lien in connection therewith, or
(3) the imposition of any penalty, fine, charge, fee, cost or
expense on the Beneficiary, then the Grantor shall comply with
the Order in sufficient time to prevent the occurrence of any
such events, the delivery of such deed or the sale of such lien,
or the imposition of such penalty, fine, charge, fee, cost or
expense on the Beneficiary.
Section 2.03. Insurance; Coverage. The Grantor shall keep the
Improvements insured against (i) damage by fire and the other
hazards covered by the standard extended coverage all risk
insurance policy, and (ii) damage by vandalism, malicious
mischief, and such other hazards against which the Beneficiary
shall require insurance, and each policy of insurance required
pursuant to this Section 2.03 shall be endorsed to name the
Beneficiary as a mortgagee-loss payee thereunder, as its interest
may appear, with loss payable to the Beneficiary without
contribution or assessment, under a New York Standard Beneficiary
Clause. All insurance policies and endorsements required
pursuant to this Section 2.03 shall be fully paid for,
nonassessable and contain such provisions (including, without
limitation, inflation guard and replacement cost endorsements)
and expiration dates and shall be in such form and amounts and
issued by such insurance companies with a rating of `A' or better
as established by Best's Rating Guide, or an equivalent rating
with such other publication of a similar nature as shall be in
current use, or such other companies, as shall be approved by the
Beneficiary. In addition to the insurance policies above
described, the Grantor shall keep and maintain in effect
insurance policies in respect of rental loss, Workmen's
Compensation, employees' liability coverage, comprehensive public
liability insurance (including contractual coverage), boiler and
machinery, and such other insurance as the Beneficiary may
require; all in such form, with such coverage, in such amounts
and issued by such insurance companies with a rating of `A' or
better as established by Best's Rating Guide or equivalent rating
of such other publications of similar nature as shall be in
current use, as shall be approved by the Beneficiary. Without
limiting the foregoing, each policy of insurance required
hereunder shall provide that such policy may not be cancelled,
expire, or be terminated (whether due to nonpayment of premiums,
surrender by the insured, or other reason) except upon thirty
(30) days' prior written notice to the Beneficiary and that no
act or thing done by the Grantor shall invalidate the policy as
against the Beneficiary. In addition, the Beneficiary may
require the Grantor to carry such other insurance on the
Improvements in such amounts as may from time to time be
reasonably required by institutional lenders, against insurable
casualties (including, without limitation, risks of war and
nuclear explosion) which at the time are commonly insured against
in the case of premises similarly situated, due regard being
given to the site and the type of the building, the type of
construction, the stage of construction, location, utilities and
occupancy or any replacements or substitutions therefor. The
Grantor shall additionally keep the Improvements insured against
loss by flood if the Premises are located in an area identified
by the Secretary of Housing and Urban Development as an area
having special flood hazards and in which the Flood Insurance Act
of 1968 and the Flood Disaster Protection Act of 1973, as the
same may have been or may hereafter be amended or modified (and
any successor acts thereto) in an amount at least equal to the
outstanding Indebtedness or the maximum limit of coverage
available with respect to the Improvements under said Act,
whichever is less, and in a company or companies to be approved
by the Beneficiary. In all events and without a modification of
or limitation on the foregoing the Grantor will assign and
deliver the policy or policies (or true copies thereof) of all
such insurance to the Beneficiary, which policy or policies shall
have endorsed thereon the New York Standard Beneficiary Clause
(provided, however, the Beneficiary shall have thirty (30) days'
notice from the insurer prior to the expiration, cancellation or
termination (for any reason whatsoever) of any policy) in the
name of the Beneficiary, so and in such manner and form that the
Beneficiary and its successors and assigns shall at all times
have and hold said policy or policies as collateral and further
security for the payment of the Indebtedness until the full
payment of the Indebtedness. In addition, from time to time, upon
the occurrence of any change in the use, operation or value of
the Premises or any part thereof, or in the availability of
insurance in the area in which the Premises are located, the
Grantor shall promptly notify the Beneficiary of such change and
shall, within five (5) days after demand by the Beneficiary, take
out such additional amounts and/or such other kinds of insurance
as the Beneficiary may reasonably require. Otherwise, the
Grantor shall not take out or permit any separate or additional
insurance which is contributing in the event of loss unless it is
endorsed in favor of the Beneficiary in accordance with the
requirements hereof and otherwise satisfactory to the Beneficiary
in all respects. Insurance required hereunder may be carried by
the Grantor pursuant to blanket policies, provided that all other
requirements herein set forth are satisfied and that the
underlying policy in respect of the Premises is assigned and
delivered to the Beneficiary as herein required. In the event
that the Grantor fails to keep the Premises insured in compliance
with this Section 2.03, the Beneficiary may, but shall not be
obligated to, obtain insurance and pay the premiums therefor and
the Grantor shall, on demand, reimburse the Beneficiary for all
sums, advances and expenses incurred in connection therewith and
such sums, advances and expenses shall bear interest at the
Default Rate (as defined in Section 2.13 of this Deed) until
reimbursed. The Grantor shall deliver copies of all original
policies to the Beneficiary together with the endorsements
thereto required hereunder. The proceeds of insurance paid on
account of any damage or destruction to the Premises or any part
thereof shall be paid over to the Beneficiary to be applied as
hereinafter provided. Notwithstanding anything to the contrary
contained herein or in any provision of applicable law, the
proceeds of insurance policies coming into the possession of the
Beneficiary shall not be deemed trust funds and the Beneficiary
shall be entitled to dispose of such proceeds as hereinafter
provided in Section 2.04. In the event of a foreclosure of the
Premises or transfer of the Premises in lieu of foreclosure or
purchase of the Premises at a foreclosure or a Trustee's sale,
all of Grantor's interest in insurance policies then in force
with respect to the Premises shall inure to the benefit of and
pass to the transferee or purchaser of the Premises, as the case
may be.
Section 2.04. Insurance; Proceeds. The Grantor shall give the
Beneficiary prompt notice of any loss covered by insurance and
the Beneficiary shall have the right to join the Grantor in
adjusting any loss in excess of $20,000. The Beneficiary shall
have the option, in its sole discretion, to apply any insurance
proceeds it may receive pursuant to Section 2.03, or otherwise,
to the payment of the Indebtedness or to allow all or a portion
of such proceeds to be used for the restoration of the
Improvements, subject, however, to the provisions of Section 2.06
hereof. In the event any such insurance proceeds shall be used
to reduce the Indebtedness, the same shall be applied by the
Beneficiary, after the deduction therefrom and repayment to the
Beneficiary of any and all costs incurred by the Beneficiary in
the recovery thereof, in any manner it shall designate, including
but not limited to, the application of such proceeds to the then
unpaid installments of the principal balance of the Indebtedness
in the inverse order of their maturity, such that the regular
payments, if any, under the Notes shall not be reduced or altered
in any manner. In the event that the Beneficiary elects to allow
the use of such proceeds for the restoration of the Improvements,
then such use of the proceeds shall be governed as hereinafter
provided in Section 2.06.
Section 2.05. Restoration of the Improvements. In the event of
damage or destruction of the Improvements, or any part thereof,
as a result of casualty, condemnation, taking or other cause, the
Grantor shall give prompt written notice thereof to the
Beneficiary and (except in the event of impossibility of
restoration or repair in the event of condemnation or other
taking), provided that the Beneficiary shall make available to
the Grantor the insurance proceeds (if any) (or in the event of
condemnation or taking, the award (if any) arising out of such
condemnation or taking) recovered by the Beneficiary as herein
provided, the Grantor shall promptly commence and diligently
continue to perform the repair, restoration and rebuilding of
that portion of the Improvements so damaged or destroyed
(hereinafter, the `Work') so as to restore the Improvements in
full compliance with all legal requirements and so that the
Improvements shall be at least equal in value and general
utility as they were prior to the damage or destruction, and if
the Work to be done is structural or if the cost of the Work, as
estimated by the Beneficiary, shall exceed Fifty Thousand
($50,000) Dollars (hereinafter, collectively, `Major Work'), the
Grantor shall, prior to the commencement of the Major Work,
furnish to the Beneficiary for its approval: (i) complete plans
and specifications for the Major Work, with satisfactory evidence
of the approval thereof (a) by all governmental authorities whose
approval is required, (b) by all parties to or having an interest
in the leases, if any, of any portion of the Premises whose
approval is required, and (c) by an architect reasonably
satisfactory to the Beneficiary (hereinafter, the `Architect')
and which shall be accompanied by the Architect's signed
estimate, bearing the Architect's seal, of the entire cost of
completing the Major Work; (ii) certified or photostatic copies
of all permits and approvals required by law in connection with
the commencement of the Work and as and when obtainable, the
conduct of the Work; and (iii) a surety bond and/or guaranty of
the payment for and completion of the Major Work, which bond or
guaranty shall be in form and substance satisfactory to the
Beneficiary and shall be signed by a surety or sureties, or
guarantor or guarantors, as the case may be, who are acceptable
to the Beneficiary, and in an amount not less than the
Architect's estimate of the entire cost of completing the Work,
less the amount of insurance proceeds (or condemnation award), if
any, then held by the Beneficiary for application toward the cost
of the Work.
The Grantor shall not commence any of the Major Work
until the Grantor shall have complied with the applicable
requirements referred to in this Section, and after commencing
the Major Work the Grantor shall perform the Major Work
diligently and in good faith in accordance with the plans and
specifications referred to in this Section 2.05, if applicable.
Section 2.06. Restoration; Advances. In the event that the
Beneficiary, in its sole discretion, elects to apply insurance
proceeds to the restoration of the Improvements, the insurance
proceeds (or, in the case of condemnation or taking, the award
therefor in the event that the Beneficiary, in its sole
discretion, shall elect to apply such award to repair and
restoration) recovered by the Beneficiary on account of damage or
destruction to the Improvements (if any) less the cost, if any,
to the Beneficiary of such recovery and of paying out such
proceeds (including reasonable attorneys' fees and costs
allocable to inspecting the Work and the plans and specifications
therefor), shall be applied by the Beneficiary to the payment of
the cost of the Work and shall be paid out from time to time to
the Grantor and/or, at the Beneficiary's option exercised from
time to time, directly to the contractor, subcontractors,
materialmen, laborers, engineers, architects and other persons
rendering services or materials for the Work, as said Work
progresses except as otherwise hereinafter provided, but subject
to the following conditions, any of which the Beneficiary may
waive:
(i) if the Work to be done is Major Work, as determined
by the Beneficiary, the Architect shall be in charge of the Work;
(ii) each request for payment shall be made on seven (7) days'
prior notice to the Beneficiary and shall be accompanied by (a) a
certificate of the president or chief financial officer of the
Grantor, as applicable, specifying the party to whom (and for the
account of which) such payment is to be made and (b) a
certificate of the Architect if one be required under Section
2.05 above, otherwise by a certificate of the president or chief
financial officer of the Grantor, as applicable, stating (a) that
all of the Work completed has been done in compliance with the
approved plans and specifications, if any be required under said
Section 2.05, and in accordance with all provisions of law; (b)
the sum requested is justly required to reimburse the Grantor for
payments by the Grantor to, or is justly due to, the contractor,
subcontractors, materialmen, laborers, engineers, architects or
other persons rendering services or materials for the Work
(giving a brief description of such services and materials), and
that when added to all sums, if any, previously paid out by the
Beneficiary does not exceed the value of the Work done to the
date of such certificate, and (c) (unless the Grantor shall have
complied with the provisions of paragraph (vii) of this Section)
that the amount of such proceeds remaining in the hands of the
Beneficiary, together with any sums deposited with the
Beneficiary pursuant to clause (vii) of this Section 2.06, will
be sufficient on completion of the Work to pay for the same in
full (giving in such reasonable detail as the Beneficiary may
require an estimate of the cost of such completion);
(iii) each request shall be accompanied by waivers of
liens, or if unavailable, xxxx xxxxx, satisfactory to the Beneficiary
covering that part of the Work previously paid for, if any, and
by a search prepared by the title insurance company insuring the
lien of this Deed of Trust or by such other title company or
licensed abstractor satisfactory to the Beneficiary or by other
evidence satisfactory to the Beneficiary, that there has not been
filed with respect to the Premises any mechanic's lien or other
lien or instrument for the retention of title in respect of any
part of the Work not discharged of record and that there exist no
encumbrances on or affecting the Premises (or any part thereof)
other than encumbrances, if any, existing as of the date hereof
and which have been approved by the Beneficiary;
(iv) no event shall have occurred and be continuing which
with the passage of time or the giving of notice, or both, would
constitute an Event of Default;
(v) the request for any payment after the Work has been
completed shall be accompanied by certified copies of all
certificates, permits, licenses, waivers and/or other documents
required by law (or pursuant to any agreement binding upon the
Grantor or affecting the Premises or any part thereof) to render
occupancy of the Premises legal;
(vi) the Work can be completed on or before the Maturity
Date; and
(vii) the Grantor, prior to the commencement of
the Work, shall have deposited with the Beneficiary an amount
equal to the difference between the cost of the Work, as
estimated by the Architect, and the net insurance proceeds (or
condemnation award, as the case may be) after the deduction
therefrom of the cost, if any, to the Beneficiary of the recovery
and paying out of such proceeds (including reasonable attorneys'
fees and costs allocable to inspecting the Work and the plans and
specifications therefor).
Upon completion of the Work and payment in full
therefor, or upon failure on the part of the Grantor promptly to
commence or diligently to continue the Work, or at any time upon
request by the Grantor, the Beneficiary may, at its option, apply
the amount of any such proceeds then or thereafter in the hands
of the Beneficiary to the payment of the Indebtedness, provided,
however, that nothing herein contained shall prevent the
Beneficiary from applying at any time the whole or any part of
such proceeds to the curing of any Event of Default.
In the event the Work to be done is not Major Work, as
determined by the Beneficiary, then the net insurance proceeds
held by the Beneficiary for application thereto shall be paid to
the Grantor by the Beneficiary from time to time upon submission
to the Beneficiary of bills and/or invoices showing costs
incurred in connection with the Work, subject, however, to the
foregoing provisions of this Section 2.06, except those which are
applicable only if the Work to be done is Major Work, as
determined by the Beneficiary.
Section 2.07. Restoration by the Beneficiary. Provided that
the Beneficiary shall make available to the Grantor the insurance
proceeds (if any) recovered by the Beneficiary as herein
provided, if within one hundred twenty (120) days after the
occurrence of any damage or destruction to the Improvements
requiring Major Work in order to restore the Improvements, the
Grantor shall not have submitted to Beneficiary and received the
Beneficiary's approval of plans and specifications for the
repair, restoration and rebuilding of the Improvements so damaged
or destroyed (approved by the Architect and by all governmental
authorities and other persons or entities, if any, whose approval
is required), or if, after such plans and specifications are
approved by all such governmental authorities and other persons
or entities, if any, and the Beneficiary, the Grantor shall fail
to commence promptly such repair, restoration and rebuilding, or
if thereafter the Grantor fails diligently to continue such
repair, restoration and rebuilding or is delinquent in the
payment to mechanics, materialmen or others of the costs incurred
in connection with such Major Work, or, in the case of any damage
or destruction not requiring Major Work, as determined by the
Beneficiary, in order to restore the Improvements, if the Grantor
shall fail to repair, restore and rebuild promptly the
Improvements so damaged or destroyed, then, in addition to all
other rights herein set forth, and after giving the Grantor ten
(10) days' written notice of the non-fulfillment of one or more
of the foregoing conditions, the Beneficiary, or any lawfully
appointed receiver of the Premises, may at their respective
options, perform or cause to be performed such repair,
restoration and rebuilding, and may take such other steps as they
deem advisable to perform such repair, restoration and
rebuilding, and upon twenty-four (24) hours' prior written notice
to the Grantor, the Beneficiary may enter upon the Improvements
to the extent reasonably necessary or appropriate for any of the
foregoing purposes, and the Grantor hereby waives, for the
Grantor and all others holding under the Grantor, any claim
against the Beneficiary and such receiver arising out of anything
done by the Beneficiary or such receiver pursuant hereto, and the
Beneficiary may, at its option, apply insurance proceeds (without
the need by the Beneficiary to fulfill any other requirements of
this Deed) to reimburse the Beneficiary, and/or such receiver for
all amounts expended or incurred by them, respectively, in
connection with the performance of such Work, and any excess
costs shall be paid by the Grantor to the Beneficiary upon
demand, and such payment of excess costs shall be deemed part of
the Indebtedness and shall be secured by the lien of this Deed.
Section 2.08. Maintenance of Existence. The Grantor will,
so long as it is owner of the Premises (or any part thereof or
interest therein), do all things necessary to preserve and keep
in full force and effect its existence, franchises, rights and
privileges under the laws of the state of its formation and,
subject to the provisions of paragraph (ii) of Section 2.02, will
comply with all regulations, rules, ordinances, statutes, orders
and decrees of any governmental authority or court applicable to
the Grantor, or to the Premises or any part thereof.
Section 2.09. Taxes and Other Charges.
(i) The Grantor shall pay and discharge by the last day
payable without penalty or premium all taxes of every kind and nature,
water rates, sewer rents and assessments, levies, permits,
inspection and license fees and all other charges imposed upon or
assessed against the Premises or any part thereof or upon the
revenues, rents, issues, income and profits of the Premises or
arising in respect of the occupancy, use or possession thereof.
The Grantor shall exhibit to the Beneficiary within ten (10) days
after request and after the same are required to be paid pursuant
to the foregoing sentence, validated receipts or other evidence
satisfactory to the Beneficiary showing the payment of such
taxes, assessments, water rates, sewer rents, levies, fees and
other charges which may be or become a lien on the Premises.
Should the Grantor default in the payment of any of the foregoing
taxes, assessments, water rates, sewer rents, levies, fees or
other charges, the Beneficiary may, but shall not be obligated
to, pay the same or any part thereof and the Grantor shall, on
demand, reimburse the Beneficiary for all amounts so paid and
such amounts shall bear interest at the Default Rate (as defined
in Section 2.13 of this Deed) until reimbursed.
(ii) Nothing in this Section 2.09 shall require the
payment or discharge of any obligation imposed upon the Grantor by
subsection (i) of this Section 2.09 so long as the Grantor shall
in good faith and at its own expense contest the same or the
validity thereof by appropriate legal proceedings which
proceedings must operate to prevent the collection thereof or
other realization thereon, the sale of the lien thereof and the
sale or forfeiture of the Premises or any part thereof, to
satisfy the same; provided that during such contest the Grantor
shall, at the option of the Beneficiary, provide security
satisfactory to the Beneficiary, assuring the discharge of the
Grantor's obligation hereunder and of any additional interest
charge, penalty or expense arising from or incurred as a result
of such contest; and provided, further, that if at any time
payment of any obligation imposed upon the Grantor by subsection
(i) of this Section 2.09 shall become necessary to prevent the
delivery of a tax deed conveying the Premises or any portion
thereof or the sale of the tax lien therefor because of non-
payment, or the imposition of any penalty or cost on the
Beneficiary, then the Grantor shall pay the same in sufficient
time to prevent the delivery of such tax deed or the sale of such
lien, or the imposition of such penalty or cost on the
Beneficiary.
(iii) The Grantor shall pay when due all (a) premiums
for fire, hazard and other insurance required to be maintained by the
Grantor on the Premises pursuant to the terms of Section 2.03
hereof, (b) title insurance premiums relating to the insurance to
be maintained on the Premises in connection with the Deed, and
(c) any and all other costs, expenses and charges expressly
required to be paid hereunder, and subject to the provisions
hereof, to be paid for the maintenance and/or protection of, or
on account of, any other collateral delivered, assigned, pledged,
mortgaged, transferred or hypothecated to the Beneficiary as
security for the Indebtedness or in connection with the execution
and delivery of this Deed.
Section 2.10. Mechanics' and Other Liens. The Grantor shall
pay, bond or discharge of record, from time to time, forthwith,
all liens (and all claims and demands of mechanics, materialmen,
laborers or others, which, if unpaid, might result in or permit
the creation of a lien) on or affecting the Premises or any part
thereof, or on or affecting the revenues, rents, issues, income
or profits arising therefrom and, in general, the Grantor
forthwith shall do, at the cost of the Grantor and without
expense to the Beneficiary, everything necessary to fully
preserve the lien of this Deed. In the event that the Grantor
fails in a timely manner to make payment in full of, bond or
discharge, such liens the Beneficiary may, but shall not be
obligated to, make payment, bond or discharge such liens, and the
Grantor shall, on demand, reimburse the Beneficiary for all sums
so expended.
Section 2.11. Condemnation Awards. The Grantor, immediately
upon obtaining knowledge of the institution of any proceedings
for the condemnation of the Premises or any portion thereof, will
notify the Beneficiary of the pendency of such proceedings. The
Beneficiary may participate in any such proceedings and the
Grantor from time to time will deliver to the Beneficiary all
instruments requested by it to permit such participation. All
awards and compensation payable to the Grantor as a result of any
condemnation or other taking or purchase in lieu thereof, of the
Premises or any part thereof, are hereby assigned to and shall be
paid to the Beneficiary. The Grantor hereby authorizes the
Beneficiary to collect and receive such awards and compensation,
to give proper receipts and acquittances therefor and, in the
Beneficiary's sole discretion, to apply the same toward the
payment of the Indebtedness, notwithstanding the fact that the
Indebtedness may not then be due and payable, or to the
restoration of the Improvements. In the event that any portion
of the condemnation awards or compensation shall be used to
reduce the Indebtedness, same shall be applied by the Beneficiary
in any manner it shall designate, including, but not limited to,
the application of such award or compensation to the then unpaid
installments of the principal balance of the Indebtedness in the
inverse order of their maturity so that the regular payments
under the Notes shall not be reduced or altered in any manner.
The Grantor, upon request by the Beneficiary, shall make, execute
and deliver any and all instruments requested for the purpose of
confirming the assignment of the aforesaid awards and
compensation to the Beneficiary free and clear of any liens,
charges or encumbrances of any kind or nature whatsoever. The
Beneficiary shall not be limited to the interest paid on the
proceeds of any award or compensation, but shall be entitled to
the payment by the Grantor of interest at the applicable rate
provided for herein or in the Original Note.
Notwithstanding the voiding of the original sale(s) or
leasing(s) of all or any portion of the Premises, the Grantor
shall continue to pay the Indebtedness at the time and in the
manner provided for its payment in the Notes and in this Deed of
Trust and the Indebtedness shall not be reduced until any payment
therefor shall have been actually received and applied by the
Beneficiary to the discharge of the Indebtedness. The
Beneficiary may apply any such payment to the discharge of the
Indebtedness whether or not then due and payable in such priority
and proportions as the Beneficiary in its discretion shall deem
to be proper. If the Premises are sold, through foreclosure or
otherwise, prior to the receipt by the Beneficiary of such
payment, the Beneficiary shall have the right, whether or not a
deficiency judgment on the Notes shall have been sought,
recovered or denied, to receive said payment, or a portion
thereof sufficient to pay the Indebtedness, whichever is less.
The Grantor, after obtaining the prior written consent of the
Beneficiary, shall file and prosecute its claim or claims for any
such payment in good faith and with due diligence and cause the
same to be collected and paid over to the Beneficiary, and hereby
irrevocably authorizes and empowers the Beneficiary, in the name
of the Grantor or otherwise, to collect and receipt for any such
payment and to file and prosecute such claim or claims, and
although it is hereby expressly agreed that the same shall not be
necessary in any event, the Grantor shall, upon demand of the
Beneficiary, make, execute and deliver any and all assignments
and other instruments sufficient for the purpose of assigning any
such payment to the Beneficiary, free and clear of any
encumbrances of any kind or nature whatsoever.
Section 2.12. Costs of Defending and Upholding the Lien. If
any action or proceeding is commenced to which action or proceeding
the Beneficiary is made a party or in which it becomes necessary
to defend or uphold the lien of this Deed, the Grantor shall, on
demand, reimburse the Beneficiary for all expenses (including,
without limitation, reasonable attorneys' fees and disbursements
and reasonable appellate attorneys' fees and disbursements)
incurred by the Beneficiary in any such action or proceeding and
such expenses shall bear interest at the Default Rate (as set
forth in Section 4.11 of the Original Note) until reimbursed. In
any action or proceeding to foreclose this Deed of Trust or to
recover or collect the Indebtedness, the provisions of law
relating to the recovering of costs, disbursements and allowances
shall prevail unaffected by this covenant.
Section 2.13. Additional Advances and Disbursements. The
Grantor shall pay by the last day payable without premium or
penalty all payments and charges on all liens, encumbrances,
ground and other leases and security interests which affect or
may affect or attach or may attach to the Premises, or any part
thereof, and in default thereof, the Beneficiary shall have the
right, but shall not be obligated, to pay, without notice to the
Grantor, such payments and charges and the Grantor shall, on
demand, reimburse the Beneficiary for amounts so paid. In
addition, upon default of the Grantor in the performance of any
other terms, covenants, conditions or obligations by it to be
performed hereunder or under any such lien, encumbrance, lease or
security interest, the Beneficiary shall have the right, but
shall not be obligated, to cure such default in the name and on
behalf of the Grantor. All sums advanced and reasonable expenses
incurred at any time by the Beneficiary pursuant to this Section
2.13 or as otherwise provided under the terms and provisions of
this Deed of Trust or under applicable law shall bear interest
from the date that such sum is advanced or expenses incurred, to
and including the date of reimbursement, computed at a
fluctuating interest rate per annum at all times equal to the
Default Rate. All interest payable hereunder shall be computed
on the basis of a 360-day year over the actual number of days
elapsed. Any such amounts advanced or incurred by the
Beneficiary, together with the interest thereon, shall be payable
on demand, shall, until paid, be secured by this Deed of Trust as
a lien on the Premises and shall be part of the Indebtedness.
Section 2.14. Costs of Enforcement. The Grantor agrees to
bear and pay all expenses (including, without limitation, reasonable
attorneys' fees and disbursements and reasonable appellate
attorneys' fees and disbursements for legal services of every
kind) of or incidental to (i) any amendment, renewal,
modification, consolidation, supplement, restatement or
restructuring of this Deed of Trust, the Notes or any document
entered into in connection with the Indebtedness or (ii) the
enforcement of any provision hereof, by litigation or otherwise,
or the enforcement, compromise of settlement of this Deed, the
Notes or the Indebtedness, and for the curing thereof, or (iii)
for defending or asserting the rights and claims of the
Beneficiary in respect thereof, by litigation or otherwise. All
rights and remedies of the Beneficiary and the Trustee shall be
cumulative and may be exercised singly or concurrently.
Notwithstanding anything herein contained to the contrary, the
Grantor: (i) hereby waives trial by jury; and (ii) will not (a)
at any time insist upon, or plead, or in any manner whatever
claim or take any benefit or advantage of any stay or extension
or moratorium law, any exemption from execution or sale of the
Premises or any part thereof, wherever enacted, now or at any
time hereafter in force, which may affect the covenants and terms
of performance of this Deed, nor (b) claim, take or insist upon
any benefit or advantage of any law now or hereafter in force
providing for the valuation or appraisal of the Premises, or any
part thereof, prior to any sale or sales thereof which may be
made pursuant to any provision hereof, or pursuant to the decree,
judgment or order of any court of competent jurisdiction; nor (c)
after any such sale or sales, claim or exercise any right under
any statute heretofore or hereafter enacted to redeem the
property so sold or any part thereof; (iii) hereby expressly
waives all benefit or advantage of any such law or laws; and (iv)
covenants not to hinder, delay or impede the execution of any
power herein granted or delegated to the Beneficiary, but to
suffer and permit the execution of every power as though no such
law or laws had been made or enacted. The Grantor, for itself
and all who may claim under it, waives, to the extent that it
lawfully may, all right to have the Premises (or any part
thereof) marshalled upon any foreclosure hereof.
Section 2.15. Filing Charges, Recording Fees, Taxes, etc.
The Grantor shall pay any and all taxes, charges, filing,
registration and recording fees, excises and levies imposed upon
the Beneficiary by reason of its ownership of the Notes or this
Deed of Trust or any mortgage supplemental hereto, any security
instrument with respect to any interest of the Grantor in and to
any fixture or personal property at the Premises or any
instrument of further assurance, other than income, franchise,
succession, inheritance, business and similar taxes, and shall
pay all other taxes, if any, required to be paid on the debt
evidenced by the Notes. In the event the Grantor fails to make
such payment within ten (10) days after written notice thereof to
the Grantor, then the Beneficiary shall have the right, but shall
not be obligated, to pay the amount due, and the Grantor shall,
on demand, reimburse the Beneficiary for said amount, together
with interest thereon computed at the Default Rate.
Section 2.16. Tax and Insurance Deposits. If an Event of
Default shall occur and be continuing hereunder or if the Grantor
shall default in its obligations set forth in Section 2.09
hereof, then the Beneficiary, at its option, to be exercised by
ten (10) days' written notice to the Grantor, may require that
the Grantor deposit with the Beneficiary, monthly, one-twelfth
(1/12th) of the annual charges for insurance premiums and real
estate taxes, assessments, water, sewer and other charges which
might become a lien upon the Premises or any part thereof (all of
the foregoing, the `Impositions'), and the Grantor shall,
accordingly, make such deposits. In addition, if required by the
Beneficiary, the Grantor shall simultaneously therewith deposit
with the Beneficiary a sum of money which together with the
monthly installments aforementioned will be sufficient to make
each of the payments aforementioned at least thirty (30) days
prior to the date such payments are due. Should said charges not
be ascertainable at the time any deposit is required to be made
with the Beneficiary, the deposit shall be made on the basis of
an estimate made by the Beneficiary in its sole discretion, and
when the charges are fixed for the then current year, the Grantor
shall deposit any deficiency with the Beneficiary. All funds so
deposited with the Beneficiary shall be held by it, but not in
escrow and, except to the extent required by applicable law,
without interest, and, provided that no Event of Default shall
have occurred, shall be applied in payment of the charges
aforementioned when and as payable, to the extent the Beneficiary
shall have such funds on hand. Should an Event of Default occur,
the funds deposited with the Beneficiary, as aforementioned, may
be applied in payment of the charges for which such funds shall
have been deposited or to the payment of the Indebtedness or any
other charges affecting the security of the Beneficiary, as the
Beneficiary sees fit, but no such application shall be deemed to
have been made by operation of law or otherwise until actually
made by the Beneficiary as herein provided, nor shall any
application be deemed to affect any right or remedy of the
Beneficiary hereunder or under any statute or rule of law. If
deposits are being made with the Beneficiary, the Grantor shall
furnish the Beneficiary with bills for the charges for which such
deposits are required to be made hereunder and/or such other
documents necessary for the payment of same, at least fifteen
(15) days prior to the date on which the charges first become
payable. In the event that the Grantor fails to pay any such
amount, the Beneficiary may, but shall not be obligated to, make
payment thereof, and the Grantor shall, on demand, reimburse the
Beneficiary for all sums so expended, together with interest
thereon computed at the Default Rate.
Section 2.17. Intentionally Omitted.
Section 2.18. Intentionally Omitted.
Section 2.19. Restrictive Covenants and Leasing Requirements.
(i) Without the prior written consent of the Beneficiary,
the Grantor shall not: (a) execute or permit to exist any lease or
occupancy of all or substantially all of the Premises except for
the actual use and occupancy of the tenant thereof; (b) modify,
renew or amend any lease or occupancy agreement affecting the
Premises; (c) grant rent concessions, or discount any rents, or
collect any rents for a period of more than one month in advance;
(d) execute any conditional xxxx of sale, chattel mortgage or
other security instruments covering any furniture, furnishings,
fixtures and equipment, intended to be incorporated in the
Premises or the appurtenances thereto, or covering articles of
personal property placed in the Premises or purchase any of such
furniture, furnishings, fixtures and equipment so that ownership
of the same will not vest unconditionally in the Grantor, free
from encumbrances on delivery to the Premises; (e) further assign
the leases and rents affecting the Premises; (f) sell, transfer,
alienate, grant, convey or assign any interest in the Premises or
any part thereof; (g) further mortgage, encumber, alienate,
hypothecate, grant a security interest in or grant any other
interest whatsoever in the Premises or any part thereof, or
interest therein; nor (h) if the Premises are now or should at
any time in the future be subject to the terms of any rent
control or rent stabilization statute, ordinance, rule or
regulation, fail to comply and/or cause the Premises to comply
with the terms and requirements of such statute, ordinance, rule
or regulation, so and in such fashion as to insure that the
Premises shall be subject to the terms and provisions, and
receive the benefits, of said statute, ordinance, rule or
regulation.
(ii) The Grantor has no right or power, as against the
Beneficiary without its consent, to cancel, abridge or otherwise
modify the leases or subleases of the Premises or any of the
terms, provisions or covenants thereof or to accept prepayments
of installments of rent to become due thereunder and the Grantor
shall not do so without such consent. Upon notice and demand,
the Grantor will, from time to time, execute, acknowledge and
deliver or cause to be executed, acknowledged and delivered to
the Beneficiary, in form satisfactory to the Beneficiary, one or
more separate assignments (confirmatory of the general assignment
provided in Section 2.22 hereof) of the lessor's interest in any
lease or sublease now or hereafter affecting the whole or any
part of the Premises. The Grantor shall pay to the Beneficiary
on demand any expenses incurred by the Beneficiary in connection
with the preparation and recording of any such assignment or
agreement. With respect to any lease referred to in this Section
2.19(ii) or which at any time is covered by any such agreement or
any such assignment of lessor's interest in such lease, the
Grantor will (a) fulfill or perform each and every condition and
covenant of the same to be fulfilled or performed by the lessor
thereunder, (b) give prompt notice to the Beneficiary of any
notice of default by the lessor thereunder received by the
Grantor together with a complete copy of any such notice, and (c)
enforce, short of termination thereof, the performance or
observance of each and every covenant and condition thereof by
the lessee thereunder to be performed or observed.
Section 2.20. Estoppel Certificates. The Grantor, within
ten (10) days upon request in person or by mail, shall furnish to the
Beneficiary a written statement, duly acknowledged, setting forth
the amount due on this Deed, the terms of payment and the
maturity date of the Notes, the date to which interest has been
paid, whether any offsets or defenses exist against the
Indebtedness and, if any are alleged to exist, a detailed
description of the nature thereof.
Section 2.21. Trust Funds. All lease securities of tenants
of the Premises shall be treated as trust funds not to be commingled
with any other funds of the Grantor and said lease securities
shall be deposited in a segregated tenants' security account to
be maintained by the Grantor at the office of the Beneficiary
designated by the Beneficiary. Within ten (10) days after
request by the Beneficiary, the Grantor shall furnish to the
Beneficiary satisfactory evidence of compliance with this
paragraph (ii) of this Section 2.21, together with a statement of
all lease securities deposited by the tenants and copies of all
leases not theretofore delivered to the Beneficiary, certified by
the Grantor.
Section 2.22. Assignment of Rents. The Grantor hereby
assigns to the Beneficiary, as further security for the payment of
the Indebtedness, its interest in the rents, issues and profits of
the Premises, together with its interest in all leases and other
documents evidencing such rents, issues and profits now or
hereafter in effect and its interest in any and all deposits held
as security under said leases, and shall, upon demand, deliver to
the Beneficiary an executed counterpart of each lease or other
document to which it is a party and which affects the Premises.
Nothing contained in the foregoing sentence shall be construed to
bind the Beneficiary to the performance of any of the covenants,
conditions or provisions contained in any such lease or other
document or otherwise to impose any obligation on the Beneficiary
(including, without limitation, any liability under the covenant
of quiet enjoyment contained in any lease or in any law of the
State of New York in the event that any tenant shall have been
joined as a party defendant in any action to foreclose this Deed
of Trust and shall have been barred and foreclosed thereby of all
right, title and interest and equity of redemption in the
Premises), except that the Beneficiary shall be accountable for
any money actually received pursuant to such assignment. The
Grantor hereby further grants to the Beneficiary the right (i) to
enter upon and take possession of the Premises for the purpose of
collecting the said rents, issues and profits, (ii) to dispossess
by the usual summary proceedings (or any other proceedings of the
Beneficiary's selection) any tenant defaulting in the payment
thereof to the Beneficiary, (iii) to let the Premises, or any
part thereof, and (iv) to apply said rents, issues and profits,
after payment of all necessary charges and expenses on account of
said Indebtedness. Such assignment and grant shall continue in
effect until the Indebtedness is paid, the execution of this Deed
of Trust constituting and evidencing the irrevocable consent of
the Grantor to the entry upon and taking possession of the
Premises by the Beneficiary pursuant to such grant, whether
foreclosure has been instituted or not and without applying for a
receiver. Until the occurrence of an Event of Default, the
Grantor shall have a revocable license to receive said rents,
issues and profits. The Grantor agrees to hold said rents, issues
and profits in trust and to use the same first, in payment of the
cost of the improvement, second, in payment of the Indebtedness
to the extent the same is then due and owing, and third, in such
manner as the Beneficiary may elect. Such license of the Grantor
to collect and receive said rents, issues and profits may be
revoked by the Beneficiary upon the occurrence of an Event of
Default by giving not less than five (5) days' written notice of
such revocation, served personally upon or sent by registered
mail to the record owner of the Premises. The Grantor hereby
appoints the Beneficiary as its attorney-in-fact, coupled with
an interest, to receive and collect all rent, additional rent and
other sums due under the terms of each lease to which the Grantor
is a party and to direct any such tenant, by written notice or
otherwise, to forward such rent, additional rent or other sums by
mail or in person to the Beneficiary.
Section 2.23. Indemnity. The Grantor agrees that it
shall indemnify, defend and hold harmless the Beneficiary and the
Trustee from and against all loss, liability, obligation, claim,
damage, penalty, cause or action, cost and expense, including
without limitation any assessments, levies, impositions,
judgments, reasonable attorneys' fees and disbursements, cost of
appeal bonds and printing costs, imposed upon or incurred by or
asserted against the Beneficiary and the Trustee by reason of (a)
ownership of this Deed; (b) any accident, injury to or death of
persons or loss of or damage to property occurring on or about
the Premises; (c) any use, non-use or condition of the Premises;
(d) any failure on the part of the Grantor to perform or comply
with any of the terms of this Deed; (e) performance of any labor
or services or the furnishing of any materials or other property
in respect of the Premises or any part for maintenance or
otherwise; (f) the imposition of any mortgage, real estate or
governmental tax incurred as a result of this Deed of Trust or
the Notes, other than income tax payable by, or other taxes
personal to, the Beneficiary; or (g) any violation or alleged
violation by the Grantor of any law. Any amounts payable under
this Section 2.23 shall be due and payable on demand and until
paid shall bear interest at the Default Rate. If any action is
brought against the Beneficiary and or the Trustee by reason of
any of the foregoing occurrences, the Grantor will, upon the
Beneficiary's request, defend and resist such action, suit or
proceeding, at the Grantor's sole cost and expense by counsel
approved by the Beneficiary.
Section 2.24. Environmental Provisions. For the purposes
of this Section 2.24 the following terms shall have the following
meanings: (i) the term `Hazardous Material' shall mean any
material or substance that, whether by its nature or use, is
subject to regulation under any Environmental Requirement, (ii)
the term `Environmental Requirements' shall collectively mean the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980 (42 U.S.C. '9601 et seq.), the Hazardous Materials
Transportation Act (49 U.S.C. '1801 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. '6901 et seq.), the
Toxic Substances Control Act (15 U.S.C. '2601 et seq.), the Clean
Air Act (42 (U.S.C. '7401 et seq.) and the Federal Water
Pollution Control Act (33 U.S.C. '1251 et seq.), all as presently
in effect and as the same may hereafter be amended, any
regulation pursuant thereto, or any other present or future law,
ordinance, rule, regulation, order or directive addressing
environmental, health or safety issues of or by any Governmental
Authority, (iii) the term `Governmental Authority' shall mean the
Federal government, or any state or other political subdivision
thereof, or any agency, court or body of the Federal government,
any state or other political subdivision thereof, exercising
executive, legislative, judicial, regulatory or administrative
functions, and (iv) the term `diligent inquiry' shall mean a
level of inquiry at least equal to any environmental site
assessment of the Premises conducted in accordance with the
Beneficiary's environmental policies and procedures. The Grantor
hereby represents and warrants to the Beneficiary that (a) no
Hazardous Material is currently located at, on, in, under or
about the Premises, (b) no Hazardous Material is currently or, to
the best of the Grantor's knowledge after diligent inquiry, has
been located at, in, on, under or about the Property in a manner
which violates any Environmental Requirement, or which requires
cleanup or corrective action of any kind under any Environmental
Requirement, (iii) no releasing, emitting, discharging, leaching,
dumping or disposing of any Hazardous Material from the Premises
onto or into any other property or from any other property onto
or into the Premises is occurring or, to the best of the
Grantor's knowledge after diligent inquiry, has occurred, in
violation of any Environmental Requirement, and (iv) no notice of
violation, lien, complaint, suit, order or other notice with
respect to the environmental condition of the Premises is
outstanding, nor, to the best of the Grantor's knowledge after
diligent inquiry, has any such notice been issued which has not
been fully satisfied and complied with in a timely fashion so as
to bring the Premises into full compliance with all Environmental
Requirements, and will not generate, store, handle, process,
dispose of or otherwise use, and will not permit any tenant or
other occupant of the Premises to generate, sort, handle,
process, dispose of or otherwise use, Hazardous Materials at, in,
on, under or about the Premises in a manner that could lead or
potentially lead to the imposition on the Grantor, the
Beneficiary or the Premises of any liability or lien of any
nature whatsoever under any Environmental Requirement. The
Grantor shall notify the Beneficiary promptly in the event of any
spill or other release of any Hazardous Material at, in, on,
under or about the Premises which is required to be reported to a
Governmental Authority under any Environmental Requirement, will
promptly forward to the Beneficiary copies of any notices
received by the Grantor relating to alleged violations of any
Environmental Requirement and will promptly pay when due any fine
or assessment against the Beneficiary, the Grantor or the
Premises relating to any Environmental Requirement. If at any
time it is determined that the operation or use of the Premises
violates any applicable Environmental Requirement or that there
are Hazardous Materials located at, in, on, under or about the
Premises which, under any Environmental Requirement, require
special handling in collection, storage, treatment or disposal,
or any other form of cleanup or corrective action, the Grantor
shall, within thirty (30) days after receipt of notice thereof
from any Governmental Authority or from the Beneficiary, take, at
its sole cost and expense, such actions as may be necessary to
fully comply in all respects with all Environmental Requirements,
provided, however, that if such compliance cannot reasonably be
completed within such thirty (30) day period, the Grantor shall
commence such necessary action within such thirty (30) day period
and shall thereafter diligently and expeditiously proceed to
complete in a timely fashion with all Environmental Requirements.
If the Grantor fails to timely take, or to diligently and
expeditiously proceed to complete in a timely fashion, any such
action, the Beneficiary may, in its sole and absolute discretion,
make advances or payments towards the performance or satisfaction
of the same, but shall in no event be under any obligation to do
so. All sums so advanced or paid by the Beneficiary (including,
without limitation, counsel and consultant fees and expenses,
investigation and laboratory fees and expenses, and fines or
other penalty payments) and all sums advanced or paid in
connection with any judicial or administrative investigation or
proceeding relating thereto, will immediately, upon demand,
become due and payable from the Grantor and shall bear interest
at the Default Rate from the date any such sums are so advanced
or paid by the Beneficiary until the date any such sums are
repaid by the Grantor to the Beneficiary. The Grantor will
execute and deliver, promptly upon request, such instruments as
the Beneficiary may deem useful or necessary to permit the
Beneficiary to take any such action, and such additional notes
and mortgages, as the Beneficiary may require to secure all sums
so advanced or paid by the Beneficiary. If a lien is filed
against the Premises by any Governmental Authority resulting from
the need to expend or the actual expending of monies arising from
an action or omission, whether intentional or unintentional, of
the Grantor or for which the Grantor is responsible, resulting in
the releasing, spilling, leaking, leaching, pumping, emitting,
pouring, emptying or dumping of any Hazardous Material into the
waters or onto land located within or without the state where the
Premises are located, then the Grantor will, within thirty (30)
days from the date that the Grantor is first given notice that
such lien has been placed against the Premises (or within such
shorter period of time as may be specified by the Beneficiary if
such Governmental Authority has commenced steps to cause the
Premises to be sold pursuant to such lien) either (a) pay the
claim and remove the lien, or (b) furnish a cash deposit, bond,
or such other security with respect thereto as is satisfactory in
all respects to the Beneficiary and is sufficient to effect a
complete discharge of such lien on the Premises. The Beneficiary
may, at its option, if the Beneficiary reasonably believes that a
Hazardous Material or other environmental condition violates or
threatens to violate any Environmental Requirement, cause an
environmental audit of the Premises or portions thereof to be
conducted to confirm the Grantor's compliance with the provisions
of this Section, and the Grantor shall cooperate in all
reasonable ways with the Beneficiary in connection with any such
audit and shall pay all costs and expenses incurred in connection
therewith. The Grantor will defend, indemnify, and hold harmless
the Beneficiary, its employees, agents, officers, and directors,
from and against any and all claims, demands, penalties, causes
of action, fines, liabilities, settlements, damages, costs, or
expenses of whatever kind or nature, known or unknown, foreseen
or unforeseen, contingent or otherwise (including, without
limitation, counsel and consultant fees and expenses,
investigation and laboratory fees and expenses, court costs, and
litigation expenses) arising out of, or in any way related to,
(i) any breach by the Grantor of any of the provisions of this
Section, (ii) the presence, disposal, spillage, discharge,
emission, leakage, release, or threatened release of any
Hazardous Material which is at, in, on, under, about, from or
affecting the Premises, including, without limitation, any damage
or injury resulting from any such Hazardous Material to or
affecting the Premises or the soil, water, air vegetation,
buildings, personal property, persons or animals located on the
Premises or on any other property or otherwise, (iii) any
personal injury (including wrongful death) or property damage
(real or personal) arising out of or related to any such
Hazardous Material, (iv) any lawsuit brought or threatened,
settlement reached, or order or directive of or by any
Governmental Authority relating to such Hazardous Material, or
(v) any violation of any Environmental Requirement or any policy
or requirement of the Beneficiary hereunder. This
indemnification shall, notwithstanding any exculpatory or the
provision of any nature whatsoever to the contrary set forth in
the Purchase Agreement, the Notes, this Deed of Trust or any
other document or instrument now or hereafter executed and
delivered in connection with the loan evidenced by the Notes and
secured by this Deed of Trust, constitute the personal recourse
undertakings, obligations and liabilities of the Grantor. If
this Deed of Trust is foreclosed or the Grantor tenders a deed or
assignment in lieu of foreclosure, the Grantor shall deliver the
Premises to the purchaser at foreclosure or to the Beneficiary,
its nominee, or wholly owned subsidiary, as the case may be, in a
condition that complies in all respects with all Environmental
Requirements. The obligations and liabilities of the Grantor
under this Section shall survive and continue in full force and
effect and shall not be terminated, discharged or released, in
whole or in part, irrespective of whether the Indebtedness has
been paid in full and irrespective of any foreclosure of this
Deed of Trust or Trustee's sale of the Premises or acceptance by
the Beneficiary, its nominee or wholly owned subsidiary of a deed
or assignment in lieu of foreclosure and irrespective of the
discharge, satisfaction, release or assignment of this Deed of
Trust or of any other fact or circumstance of any nature
whatsoever.
Section 2.25. Right of Entry. The Beneficiary and its agents
shall have the right to enter and inspect the Premises at all
reasonable times.
Section 2.26. Waiver of Statutory Rights. Notwithstanding
anything herein contained to the contrary, the Grantor: (i)
hereby irrevocably and unconditionally waives any and all rights
to trial by jury in any action, suit or counterclaim arising in
connection with, out of or otherwise relating to the Purchase
Agreement, the Notes, this Deed of Trust or any other document or
instrument now or hereafter executed and delivered in connection
therewith or the loan secured by this Deed of Trust; and (ii)
will not (a) at any time insist upon, or plead, or in any manner
whatever claim or take any benefit or advantage of any stay or
extension or moratorium law, any exemption from execution or sale
of the Premises or any part thereof, wherever enacted, now or at
any time hereafter in force, which may affect the covenants and
terms of performance of this Deed of Trust, nor (b) claim, take
or insist upon any benefit or advantage of any law now or
hereafter in force providing for the valuation or appraisal of
the Premises, or any part thereof, prior to any sale or sales
thereof which may be made pursuant to any provision hereof, or
pursuant to the decree, judgment or order of any court of
competent jurisdiction; nor (c) after any such sale or sales,
claim or exercise any right under any statute heretofore or
hereafter enacted to redeem the property so sold or any part
thereof; (iii) hereby expressly waives all benefit or advantage
of any such law or laws; and (iv) covenants not to hinder, delay
or impede the execution of any power herein granted or delegated
to the Beneficiary, but to suffer and permit the execution of
every power as though no such law or laws had been made or
enacted. The Grantor, for itself and all who may claim under it,
waives, to the extent that it lawfully may, all right to have the
Premises (or any part thereof) marshalled upon any foreclosure
hereof.
ARTICLE III
Default and Remedies
Section 3.01. Events of Default. The following shall
constitute `Events of Default' under this Deed: (a) a default or
event of default shall occur under the Purchase Agreement, the Notes
or any document, instrument or agreement executed in connection
therewifth; or (b) Grantor shall fail to observe or perform any
of the terms, covenants or conditions contained herein; or (c)
should any representation or warranty made herein prove to be
untrue in any material respect at the time when made; or (d) the
further assignment or encumbrance by the Grantor of the leases or
rents of the Premises or any part thereof without in each
instance the prior written consent of the Beneficiary; or (e) if
the Grantor leases all or part of the Premises without in each
instance the prior written consent of the Beneficiary; or (f)
subject to the provisions of paragraph (i) of Section 2.09 hereof
permitting the Grantor to contest the same, the failure by the
Grantor to pay (or cause to be paid), before any fine, penalty,
interest or cost may be added thereto all franchise taxes and
charges, and other governmental charges, general and special,
ordinary and extraordinary, unforeseen as well as foreseen, of
any kind and nature whatsoever, including, but not limited to,
assessments for public improvements or benefits which are
assessed, levied, confirmed, imposed or become a lien upon the
Premises or any part thereof or become payable during the term of
the Notes or this Deed of Trust or if the Grantor enters into any
agreement, either written or oral, which has the effect of
deferring the payment of any taxes or other charges which are or
can be assessed, levied, confirmed, imposed or become a lien on
the Premises or any part thereof or become payable during the
term of the Notes or this Deed; or (g) the further mortgage,
pledge or encumbrance by the Grantor of the Premises or any part
thereof or any interest therein without in each instance the
prior written consent of the Beneficiary; or if any mortgage,
pledge or encumbrance affecting the Premises or any part thereof
or interest therein (whether prior or subordinate to the lien of
this Deed) shall be amended, modified, refinanced, increased in
amount, replaced or substituted for; provided, however, that
nothing herein contained shall be deemed to permit the Grantor to
create, grant or suffer to exist any such mortgage, pledge, or
encumbrance; or (h) if upon application by the Beneficiary to two
or more fire insurance companies which are lawfully doing
business in the state wherein the Premises are located and which
are issuing policies of fire insurance upon buildings situated
within the area wherein the Premises are situated, said
companies shall refuse to issue such policies; or (i) if the
Grantor or any guarantor ceases to do business or terminates its
business for any reason whatsoever; or (j) if a default occurs
under any mortgage which is prior or subordinate to the lien of
this Deed of Trust (beyond the applicable notice and grace
period, if any) or the mortgagee under any such prior or
subordinate mortgage commences a foreclosure or other enforcement
action in connection with said mortgage; or (k) if the Grantor
defaults (beyond the applicable notice and grace period, if any)
under any other agreement with the Beneficiary; or (l) if the
Grantor or any guarantor (if a judicial entity) shall be
dissolved, terminated or cease to exist in good standing in the
jurisdictions under which it is organized, existing, and
operating; or (m) if, at any time, the Premises shall not be
managed by the Grantor, or any affiliate of the Grantor or a
reputable, professional managing agent acceptable to the
Beneficiary; or (n) if the Premises, or any part thereof or
interest therein, is sold, transferred, assigned, conveyed,
granted or alienated without in each instance the prior written
consent of the Beneficiary.
Section 3.02. Remedies.
(i) Upon the occurrence of any Event of Default, the
Trustee or the Beneficiary may, in addition to any rights or remedies
available to it hereunder, take such action as it deems advisable
to protect and enforce its rights against the Grantor and in and
to the Premises, including, but not limited to, the following
actions, each of which may be pursued concurrently or otherwise,
at such time and in such order as the Beneficiary may determine,
in its sole discretion, without impairing or otherwise affecting
the other rights and remedies of the Beneficiary: (1) declare
the entire unpaid Indebtedness to be immediately due and payable;
or (2) enter into or upon the Premises, either personally or by
its agents, nominees or attorneys and dispossess the Grantor and
its agents and servants therefrom, and thereupon the Beneficiary
or the Trustee may (a) use, operate, manage, control, insure,
maintain, repair, restore and otherwise deal with all and every
part of the Premises and conduct the business thereat; (b)
complete any construction on the Premises in such manner and form
as the Beneficiary deems advisable; (c) make alterations,
additions, renewals, replacements and improvements to or on the
Improvements and the balance of the Premises; (d) exercise all
rights and powers of the Grantor with respect to the Premises,
whether in the name of the Grantor or otherwise, including,
without limitation, the right to make, cancel, enforce or modify
leases, obtain and evict tenants, and xxx for, collect and
receive all earnings, revenues, rents, issues, profits and other
income of the Premises and every part thereof; and (e) apply the
receipts from the Premises to the payment of the Indebtedness,
after deducting therefrom all expenses (including reasonable
attorneys' fees and disbursements) incurred in connection with
the aforesaid operations and all amounts necessary to pay the
taxes, assessments, insurance and other charges in connection
with the Premises, as well as just and reasonable compensation
for the services of the Beneficiary and the Trustee, its or their
counsel, agents and employees; or (3) institute proceedings for
the complete foreclosure of this Deed of Trust in which case the
Premises may be sold for cash or credit in one or more parcels;
or (4) with or without entry and, to the extent permitted, and
pursuant to the procedures provided by applicable law, institute
proceedings for the partial foreclosure of this Deed of Trust for
the portion of the Indebtedness then due and payable, subject to
the lien of this Deed of Trust continuing unimpaired and without
loss of priority so as to secure the balance of the Indebtedness
not then due; or (5) institute an action, suit or proceeding in
equity for the specific performance of any covenants, condition
or agreement contained herein or in the Notes; or (6) recover
judgment on the Notes or any guaranty either before, during or
after or in lieu of any proceedings for the enforcement of this
Deed; or (7) apply for the appointment of a trustee, receiver,
liquidator or conservator of the Premises, without regard for the
adequacy of the security for the Indebtedness and without regard
for the solvency of the Grantor, any guarantor or of any person,
firm or other entity liable for the payment of the Indebtedness
to which appointment the Grantor does hereby consent; or (8) sell
the Premises, or any part thereof, to the extent permitted and
pursuant to the procedures provided by law, and all estate,
right, title and interest, claim and demand therein, and right of
redemption thereof, at one or more sales as an entity or in
parcels, and at such time and place upon such terms and after
such notice thereof as may be required or permitted by law; or
pursue such other remedies as the Beneficiary may have under
applicable law. In the event of any sale of the Premises under
the terms of this Deed, the Grantor shall pay (in addition to
taxable costs) a reasonable fee to the Trustee which shall be in
lieu of all other fees and commissions permitted by statute or
custom to be paid, reasonable attorneys' fees and all expenses
incurred in obtaining or continuing abstracts of title for the
purpose of any such sale; or
(ii) The purchase money proceeds or avails of any sale
made under or by virtue of this Article III, together with any other
sums which then may be held by the Beneficiary or the Trustee under
this Deed, whether under the provisions of this Article III or
otherwise, shall be applied as follows:
First: To the payment of the costs and expenses of any such sale,
or the costs and expenses of entering upon, taking
possession of, removal from, holding, operating and
managing the Premises or any part thereof, as the case may
be, including reasonable compensation to the Beneficiary
and the Trustee, its or their agents and counsel, and of
any judicial proceedings wherein the same may be made, and
of all expenses, liabilities and advances made or incurred
by the Beneficiary or the Trustee under this Deed,
together with interest as provided herein on all advances
made by the Beneficiary or the Trustee and all taxes or
assessments, except any taxes, assessments or other
charges subject to which the Premises shall have been
sold.
Second: To the payment of the whole amount then due, owing or
unpaid upon the Notes for principal and interest with
interest on the unpaid principal at the rate herein
specified from and after the happening of any Event of
Default from the due date of any such payment of principal
until the same is paid.
Third: To the payment of any other sums required to be paid by
the Grantor pursuant to any provision of this Deed of
Trust or of the Notes or of the Purchase Agreement.
Fourth: To the payment of the surplus, if any, to whomsoever
may be lawfully entitled to receive the same. Except as
may be otherwise provided by applicable law, no purchaser
of all or any part of the Premises shall be required to
see to the proper application of the purchase money,
proceeds or avails of such sale.
The Beneficiary, the Trustee and any receiver of the Premises or
any part thereof shall be liable to account for only those rents,
issues and profits actually received by it.
(iii) The Beneficiary or the Trustee may adjourn from
time to time any sale by it to be made under or by virtue of this Deed of
Trust by announcement at the time and place appointed for such
sale or for such adjourned sale or sales; and except as otherwise
provided by any applicable provision of law, the Beneficiary or
the Trustee, without further notice or publication, may make such
sale at the time and place to which the same shall be so
adjourned.
(iv) Upon the completion of any sale or sales made by the
Trustee or the Beneficiary under or by virtue of this Article II, the
Trustee, or an officer of any court empowered to do so, shall
execute and deliver to the accepted purchaser or purchasers a
good and sufficient instrument, or good and sufficient
instruments, conveying, assigning and transferring all estate,
right, title and interest in and to the property and rights sold,
but without any covenant or warranty express or implied. The
Trustee is hereby irrevocably appointed the true and lawful
attorney-in-fact of the Grantor, and this power, being coupled
with an interest, shall empower the Trustee in the name and stead
of the Grantor, to make all necessary conveyances, assignments,
transfers and deliveries of the Premises and rights so sold, and
for that purpose the Trustee may execute all necessary
instruments of conveyance, assignment and transfer, and may
substitute one or more persons with like power, the Grantor
hereby ratifying and confirming all that its said attorney-in-
fact or such substitute or substitutes shall lawfully do by
virtue hereof. Nevertheless, the Grantor, if so requested by the
Trustee or the Beneficiary, shall ratify and confirm any such
sale or sales by executing and delivering to the Trustee or to
such purchaser or purchasers all such instruments as may be
advisable, in the judgment of the Trustee or the Beneficiary, for
that purpose, and as may be designated in such request. Any such
sale or sales made under or by virtue of this Article II, whether
made under the power of sale herein granted or under or by virtue
of judicial proceedings of sale herein granted or under or by
virtue of judicial proceedings or of a judgment or decree of
foreclosure and sale, shall operate to divest all the estate,
right, title, interest, claim and demand whatsoever, whether at
law or in equity, of the Grantor in and to the properties and
rights so sold, and shall be a perpetual bar both at law and in
equity against the Grantor and against any and all persons
claiming or who may claim the same, or any part thereof, from,
through or under the Grantor.
(v) In the event of any sale made under or by virtue of
this Article III (whether made by virtue of judicial proceedings or
a judgment or decree of foreclosure and sale), the entire
Indebtedness, if not previously due and payable, immediately
thereupon shall, anything in the Notes or in this Deed of Trust
to the contrary notwithstanding, become due and payable.
(vi) Upon any sale made under or by virtue of this
Article III (whether made under the power of sale herein granted by
virtue of judicial proceedings or of a judgment or decree of foreclosure
and sale), the Beneficiary may bid for and acquire the Premises
or any part thereof or interest therein and in lieu of paying
cash therefor may make settlement for the purchase price by
crediting upon the Indebtedness of the Grantor secured by this
Deed of Trust the net sales price after deducting therefrom the
expenses of the sale and the costs of the action and any other
sums which the Beneficiary is authorized to deduct under this
Deed.
(vii) The Beneficiary shall be entitled to recover
judgment as aforesaid either before or after or during the pendency of
the proceedings for the enforcement of the provisions of this Deed;
and the right of the Beneficiary to recover such judgment shall
not be affected by any entry or sale hereunder, or by the
exercise of any right, power or remedy for the enforcement of the
provisions of this Deed, or the foreclosure of the lien hereof;
and in the event of a sale of the Premises, or any part thereof,
and of the application of the proceeds of sale, as in this Deed
of Trust provided, to the payment of the debt hereby secured, the
Beneficiary shall be entitled to enforce payment of, and to
receive all amounts then remaining due and unpaid upon, the
Notes, and to enforce payment of all other charges, payments and
costs due under this Deed, and shall be entitled to recover
judgment for any portion of the debt remaining unpaid, with
interest at the Default Rate. In case of the commencement of any
case against the Grantor under any applicable bankruptcy,
insolvency, or other similar law now or hereafter in effect or
any proceedings for its reorganization or involving the
liquidation of its assets, then the Beneficiary shall be entitled
to prove the whole amount of principal and interest due upon the
Notes to the full amount thereof, and all other payments, charges
and costs due under this Deed, without deducting therefrom any
proceeds obtained from the sale of the whole or any part of the
Premises, provided, however, that in no case shall the
Beneficiary receive a greater amount than such principal and
interest and such other payments, charges and costs from the
aggregate amount of the proceeds of the sale of the Premises and
the distribution from the estate of the Grantor.
(viii) No recovery of any judgment by the Beneficiary
and no levy of an execution under any judgment upon the Premises or
upon any other property of the Grantor shall affect in any manner or
to any extent, the lien of this Deed of Trust upon the Premises
or any part thereof, or any liens, rights, powers or remedies of
the Beneficiary hereunder, but such liens, rights, powers and
remedies of the Beneficiary shall continue unimpaired as before.
(ix) It is understood and agreed that neither the assignment of
income, rents, royalties, revenue, issues, profits and proceeds
to Beneficiary nor the exercise by Beneficiary of any of its
rights or remedies under this Deed of Trust shall be deemed to
make Beneficiary a `mortgagee-in-possession' or otherwise
responsible or liable in any manner with respect to the Premises
or the use, occupancy, enjoyment or operation of all or any
portion thereof, unless and until Beneficiary, in person or by
agent, assumes actual possession thereof, nor shall appointment
of a receiver for the Premises by any court at the request of
Beneficiary or by agreement with Grantor or the entering into
possession of the Premises or any part thereof by such receiver
be deemed to make Beneficiary a `mortgagee-in-possession' or
otherwise responsible or liable in any manner with respect to the
Premises or the use, occupancy, enjoyment or operation of all or
any portion thereof.
Section 3.03. Payment of Indebtedness After Default. Upon
the occurrence of any Event of Default and the acceleration of the
maturity hereof, if, at any time prior to foreclosure sale, the
Grantor or any other person tenders payment of the amount
necessary to satisfy the Indebtedness, the same shall constitute
an evasion of the payment terms hereof and/or of the Notes and
shall be deemed to be a voluntary prepayment hereunder, in which
case such payment must include the premium and/or fee required
under the prepayment provision, if any, contained herein or in
the Notes. This provision shall be of no force or effect if at
the time that such tender of payment is made, the Grantor has the
right under this Deed of Trust or the Notes to prepay the
Indebtedness without penalty or premium.
Section 3.04. Possession of the Premises. Upon the occurrence
of any Event of Default hereunder, it is agreed that the Grantor,
if it is the occupant of the Premises or any part thereof, shall
immediately surrender possession of the Premises so occupied to
the Beneficiary, and if the Grantor is permitted to remain in
possession, the possession shall be as a tenant of the
Beneficiary and, on demand, Grantor shall pay to the Beneficiary
monthly, in advance, a reasonable rental for the space so
occupied and in default thereof Grantor may be dispossessed by
the usual summary proceedings. The covenants herein contained
may be enforced by a receiver of the Premises or any part
thereof. Nothing in this Section 3.04 shall be deemed to be a
waiver of the provisions of this Deed of Trust prohibiting the
sale or other disposition of the Premises without the
Beneficiary's prior written consent.
Section 3.05. Interest After Default. If any payment due
hereunder or under the Notes is not paid when due, whether on any
stated due date, any accelerated due date or any other date or at
any other time specified under any of the terms hereof or
thereof, then, and in such event, the Grantor shall pay interest
on the entire outstanding and unpaid principal balance of
Indebtedness from and after the date on which such payment first
becomes due at the Default Rate and such interest shall be due
and payable, on demand, at such rate until such Event of Default
shall have been cured or, if such Event of Default shall not have
been cured, until the entire amount due is paid to the
Beneficiary, whether or not any action shall have been taken or
proceeding commenced to recover the same or to foreclose this
Deed. All unpaid and accrued interest shall be secured by this
Deed of Trust as a part of the Indebtedness. Nothing in this
Section 3.05 or in any other provision of this Deed of Trust
shall constitute an extension of the time of payment of the
Indebtedness.
Section 3.06. Grantor's Actions After Default. After the
happening of any Event of Default and immediately upon the
commencement of any action, suit or other legal proceedings by
the Trustee or the Beneficiary to obtain judgment for the
Indebtedness, or of any other nature in aid of the enforcement of
the Notes or of this Deed, the Grantor will (i) waive the
issuance and service of process and enter its voluntary
appearance in such action, suit or proceeding, (ii) waive the
right to trial by jury and (iii) if required by the Beneficiary,
consent to the appointment of a receiver or receivers of the
Premises and of all the earnings, revenues, rents, issues,
profits and income thereof.
Section 3.07. Control by Beneficiary After Default.
Notwithstanding the appointment of any receiver, liquidator or
trustee of the Grantor, or of any of its property, or of the
Premises or any part thereof, the Beneficiary shall be entitled
to retain possession and control of all property now and
hereafter covered by this Deed.
ARTICLE IV
Concerning the Trustee
Section 4.01. Acceptance by Trustee. The Trustee, by its
acceptance hereof, covenants faithfully to perform and fulfill
the trusts herein created, being liable, however, only for
willful negligence or misconduct, and hereby waives any statutory
fee and agrees to accept reasonable compensation, in lieu
thereof, for any services rendered by it in accordance with the
terms hereof.
Section 4.02. Resignation of Trustee. The Trustee may resign at
any time upon giving thirty (30) days' notice in writing to the
Grantor and to the Beneficiary.
Section 4.03. Removal of Trustee.
(i) Beneficiary shall have the irrevocable power to remove
Trustee, and to appoint one or more additional or substitute
trustees, without notice and without specifying any reason
therefor. Such power of appointment of successor trustees may be
exercised as often as and whenever Beneficiary deems it
advisable, and the exercise of such power of appointment, no
matter how often, shall not be an exhaustion thereof. Grantor,
for itself, its successors and assigns, and Trustee herein named
or that may be substituted hereunder, expressly waives notice of
the exercise of such power and any necessity of making oath or
giving bond of any Trustee hereunder. Upon the recordation of
such instrument or instruments of appointment, each trustee or
trustees so appointed shall thereupon without any further act or
deed or conveyance become fully vested with identically the same
title and estate in and to the Premises, and with all the rights,
powers, trusts, and duties of their, his or its predecessor in
the trust hereunder, with like effect as if originally named
Trustee hereunder. No such substitute Trustee shall be required
to give a bond for the faithful performance of their, his or its
duties unless required to do so by the Beneficiary.
(ii) The term `Trustee' shall be construed to mean all
persons or entities from time to time acting as Trustee hereunder, whether
the person or entity named initially as Trustee, or one or more
successors in the trust. All title, estate, rights, powers,
trusts and duties hereunder given, or appertaining to or
devolving upon Trustee shall be in each trustee hereunder so that
any action hereunder or purporting to be hereunder of the
original, or any successor, trustee shall for all purposes be
considered to be, and as effective as, the action of Trustee.
ARTICLE V
Miscellaneous
Section 5.01. Credits Waived. The Grantor will not claim
nor demand nor be entitled to any credit or credits against the
Indebtedness for so much of the taxes assessed against the
Premises or any part thereof, as is equal to the tax rate applied
to the amount due on this Deed of Trust or any part thereof, and
no deductions shall otherwise be made or claimed from the taxable
value of the Premises or any part thereof by reason of this Deed
of Trust or the Indebtedness secured hereby.
Section 5.02. No Releases. The Grantor agrees, that in the
event the Premises (or any part thereof or interest therein) are
sold and the Beneficiary enters into any agreement with the then
owner of the Premises extending the time of payment of the
Indebtedness, or otherwise modifying the terms hereof, the
Grantor shall continue to be liable to pay the Indebtedness
according to the tenor of any such agreement unless expressly
released and discharged in writing by the Beneficiary.
Section 5.03. Notices. All notices hereunder shall be in
writing and shall be deemed to have been sufficiently given or
served for all purposes when sent by registered mail, return
receipt requested, to any party hereto at its address above
stated in the case of the Beneficiary, to the attention of Xxxx
Xxxxxx, Esq., with a copy to Loeb & Loeb LLP, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxx, Esq., and
in the case of the Grantor, to the attention of ______________,
with a copy to ______________________________, Attention:
______________, Esq., or at such other address of which it shall
have notified the party giving such notice in writing as
aforesaid.
Section 5.04. Binding Obligations. The provisions and
covenants of this Deed of Trust shall run with the land, shall be
binding upon the Grantor and shall inure to the benefit of the
Beneficiary, subsequent holders of this Deed, and the respective
successors and assigns of the foregoing. For the purpose of this
Deed, the term `Grantor' shall include and refer to the Grantor
named herein, any subsequent owners of the Premises (or any part
thereof or interest therein), and their respective heirs,
executors, legal representatives, successors and assigns. If
there is more than one Grantor, all their undertakings hereunder
shall be deemed joint and several.
Section 5.05. Legal Construction. The creation of this
Deed, the perfection of the lien or security interest in the Premises,
and the rights and remedies of the Beneficiary with respect to
the Premises, as provided herein and by the laws of the state in
which the Premises is located, shall be governed by and construed
in accordance with the internal laws of the state in which the
Premises is located without regard to principles of conflict of
law. Otherwise, to the extent permitted by applicable law, this
Deed of Trust and the Notes (including the liability of Grantor
for any deficiency following a foreclosure of all or any part of
the Premises) shall be governed by and construed in accordance
with the internal laws of the State of New York without regard to
principles of conflicts of laws, such state being the state where
such documents were executed and delivered. Nothing in this
Deed, the Notes or in any other agreement between the Grantor and
the Beneficiary shall require the Grantor to pay, or the
Beneficiary to accept, interest in an amount which would subject
the Beneficiary to any penalty or forfeiture under applicable
law. In the event that the payment of any charges, fees or other
sums due hereunder or under the Notes or any such other agreement
which are or could be held to be in the nature of interest and
which would subject the Beneficiary to any penalty or forfeiture
under applicable law, then ipso facto the obligations of the
Grantor to make such payment shall be reduced to the highest rate
authorized under applicable law. Should the Beneficiary receive
any payment which is or would be in excess of the highest rate
authorized under law, such payment shall have been, and shall be
deemed to have been, made in error and shall automatically be
held by the Beneficiary as additional cash collateral for the
Indebtedness.
Section 5.06. Captions. The captions of the Sections of this
Deed of Trust are for the purpose of convenience only and are not
intended to be a part of this Deed of Trust and shall not be
deemed to modify, explain, enlarge or restrict any of the
provisions hereof.
Section 5.07. Further Assurances. The Grantor shall do,
execute, acknowledge and deliver, at the sole cost and expense of
the Grantor, all and ever such further acts, deeds, conveyances,
mortgages, assignments, estoppel certificates, notices of
assignment, transfers and assurances as the Beneficiary or the
Trustee may require from time to time in order to better assure,
convey, grant, assign, transfer and confirm unto the Beneficiary,
the rights now or hereafter intended to be granted to the Trustee
under this Deed, any other instrument executed in connection with
this Deed of Trust or any other instrument under which the
Grantor may be or may hereafter become bound to convey, mortgage
or assign to the Trustee for carrying out the intention of
facilitating the performance of the terms of this Deed. The
Grantor hereby appoints the Beneficiary and the Trustee its
attorney-in-fact to execute, acknowledge and deliver for and in
the name of the Grantor any and all of the instruments mentioned
in this Section 5.07 and this power, being coupled with an
interest, shall be, irrevocable as long as any part of the
Indebtedness remains unpaid.
Section 5.08. Severability. Any provision of this Deed of
Trust which is prohibited or unenforceable in any jurisdiction or
prohibited or unenforceable as to any person or entity or
circumstance shall, as to such jurisdiction, person or entity or
circumstance be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof or affecting the validity or enforceability of such
provisions in any other jurisdiction or as to any other person or
entity.
Section 5.09. Absolute and Unconditional Obligation. The
Grantor acknowledges that the Grantor's obligation to pay the
Indebtedness in accordance with the provisions of the Notes and
this Deed of Trust is and shall a all times continue to be
absolute and unconditional in all respects, and shall at all
times be valid and enforceable irrespective of any other
agreements or circumstances of any nature whatsoever which might
otherwise constitute a defense to the Notes or this Deed of Trust
or the obligation of the Grantor thereunder to pay the
Indebtedness or the obligations of any other person relating to
the Notes or this Deed of Trust or the obligations of the Grantor
under the Notes or this Deed of Trust or otherwise with respect
to the loan secured hereby. The Grantor absolutely,
unconditionally and irrevocably waives any and all right to
assert any defense, setoff, counterclaim or cross-claim of any
nature whatsoever with respect to the obligation of the Grantor
to pay the Indebtedness in accordance with the provisions of the
Notes and this Deed of Trust or the obligations of any other
person relating to the Notes or this Deed of Trust or obligations
of the Grantor under the Notes or this Deed of Trust or otherwise
with respect to the loan secured hereby, or in any action or
proceeding brought by the Grantor to collect the Indebtedness, or
any portion thereof, or to enforce, foreclose and realize upon
the lien and security interest created by this Deed of Trust or
any other document or instrument securing repayment of the
Indebtedness, in whole or in part.
Section 5.10. General Conditions.
(i) All covenants hereof shall be construed as affording
to the Beneficiary rights additional to and not exclusive of the rights
conferred under the provisions of any other applicable law.
(ii) This Deed of Trust cannot be altered, amended, modified
or is discharged orally and no executory agreement shall be effective
to modify or discharge it in whole or in part, unless it is in
writing and signed by the party against whom enforcement of the
modification, alteration, amendment or discharge is sought. The
Grantor acknowledges that the Notes and this Deed of Trust and
the other documents and instruments executed and delivered in
connection therewith or otherwise in connection with the loan
secured hereby set forth the entire agreement and understanding
of the Grantor and the Beneficiary with respect to the loan
secured hereby and that no oral or other agreements,
understanding, representation or warranties exist with respect to
the loan secured hereby other than those set forth in the Note,
this Deed of Trust, the Purchase Agreement and such other
executed and delivered documents and instruments.
(iii) No remedy herein conferred upon or reserved to the
Beneficiary is intended to be exclusive of any other remedy or
remedies, and each and every such remedy shall be cumulative, and
shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute. No
delay or omission of the Beneficiary in exercising any right or
power accruing upon any Event of Default shall impair any such
right or power, or shall be construed to be a waiver of any such
Event of Default, or any acquiescence therein. Acceptance of any
payment (other than a monetary payment in cure of a monetary
default) after the occurrence of an Event of Default shall not be
deemed a waiver of or a cure of such Event of Default and every
power and remedy given by this Deed of Trust to the Beneficiary
may be exercised from time to time as often as may be deemed
expedient by the Beneficiary. Nothing in this Deed of Trust or
in the Notes shall limit or diminish the obligation of the
Grantor to pay the Indebtedness in the manner and at the time and
place therein respectively expressed.
(iv) No waiver by the Beneficiary will be effective unless
it is in writing and then only to the extent specifically stated.
Without limiting the generality of the foregoing, any payment
made by the Beneficiary for insurance premiums, taxes,
assessments, water rates, sewer rentals, levies, fees or any
other charges affecting the Premises, shall not constitute a
waiver of the Grantor's default in making such payments and shall
not obligate the Beneficiary to make any further payments.
(v) The Beneficiary shall have the right to appear in
and defend any action or proceeding, in the name and on behalf of the
Grantor which the Beneficiary, in its discretion, feels may
adversely affect the Premises or this Deed. The Beneficiary
shall also have the right to institute any action or proceeding
which the Beneficiary, in its discretion, feels should be brought
to protect its interest in the Premises or its rights hereunder.
All costs and expenses incurred by the Beneficiary in connection
with such actions or proceedings, including, without limitation,
reasonable attorneys' fees and expenses and appellate attorneys'
fees and expenses, shall be paid by the Grantor on demand and
shall be secured by this Deed.
(vi) In the event of the passage after the date of this
Deed of Trust of any law of any governmental authority having
jurisdiction hereof or the Premises, deducting from the value of
land for the purpose of taxation, affecting any lien thereon or
changing in any way the laws for the taxation of mortgages or
debts secured by mortgages for federal, state or local purposes,
or the manner of the collection of any such taxes, so as to
affect this Deed, the Grantor shall promptly pay to the
Beneficiary, on demand, all taxes, costs and charges for which
the Beneficiary is or may be liable as a result thereof; provided
that if said payment shall be prohibited by law, render the Notes
usurious or subject the Beneficiary to any penalty or forfeiture,
then and in such event the Indebtedness shall, at the option of
the Beneficiary, be immediately due and payable.
(vii) The Grantor hereby appoints the Beneficiary as its
attorney-in-fact in connection with the personal property and
fixtures covered by this Deed, where permitted by law, to file on
its behalf any financing statements or other statements in
connection therewith with the appropriate public office signed by
the Beneficiary, as secured party. This power, being coupled
with an interest, shall be irrevocable so long as any part of the
Indebtedness remains unpaid.
(viii) If the Beneficiary purchases the Premises pursuant
to a foreclosure under this Deed, or accepts a deed to the Premises in
lieu of a foreclosure, the Grantor hereby authorizes the
Beneficiary to withhold the amount of tax, if any, required to be
withheld under Section 1445 of the Internal Revenue Code of 1986,
as amended (or any successor provision thereto), out of any sums
payable to the Grantor from such foreclosure sale or assignment
in lieu thereof, as the case may be, after payment of all parties
other than the Grantor who are entitled to be paid out of any
foreclosure or assignment proceeds, as if the Grantor were a
foreign person, unless the Grantor certifies its nonforeign
status at the time of such foreclosure sale or assignment, as the
case may be, by executing and delivering to the Beneficiary a
certificate satisfactory to the Beneficiary.
(ix) The information set forth on the cover hereof is hereby
incorporated herein.
(x) The Grantor acknowledges that it has received a true
copy of this Deed of Trust provided without charge.
(xi) For purposes of this Deed, whenever the circumstances
or the context of this Deed of Trust so requires, the singular shall be
construed as the plural, the masculine shall be construed as the
feminine and/or the neuter and vice versa.
(xii) The Beneficiary is hereby irrevocably authorized
at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) other than tenant
security accounts at any time held or other indebtedness at any
time owing by the Beneficiary to or for the credit or the account
of the Grantor against any and all of the obligations of the
Grantor now or hereafter existing under this Deed of Trust and/or
Notes. The Beneficiary agrees promptly to notify the Grantor
after any such set-off and application, provided that the failure
to give such notice shall not affect the validity of such set-off
and application. The rights of the Beneficiary under this
paragraph are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which
the Beneficiary may have.
(xiii) If at any time the Grantor believes that the
Beneficiary has not acted reasonably in granting or withholding
any approval or consent under the Notes, this Deed of Trust or
any other document or instrument now or hereafter executed and
delivered in connection therewith or otherwise with respect to
the loan secured hereby, as to which approval or consent either
the Beneficiary has expressly agreed to act reasonably, or absent
such agreement, a court of law having jurisdiction over the
subject matter would require the Beneficiary to act reasonably,
then the Grantor's sole remedy shall be to seek injunctive relief
or specific performance and no action for monetary damages or
punitive damages shall in any event or under any circumstances be
maintained by the Grantor against the Beneficiary.
(xiv) This Deed of Trust may be executed in any number of
duplicate originals and each such duplicate original shall be
deemed to constitute but one and the same instrument.
Section 5.11. Intentionally Omitted.
Section 5.12. Multisite Real Estate Transaction. Grantor
acknowledges that this Deed of Trust is one of a number of other
deeds of trust, mortgages and assignments of leases and rents and
other security documents (hereinafter collectively the `Other
Loan Documents') which secure the Indebtedness in whole or in
part. Grantor agrees that the lien of this Deed of Trust shall
be absolute and unconditional and shall not in any manner be
affected or impaired by any acts or omissions whatsoever of
Beneficiary and, without limiting the generality of the
foregoing, the lien hereof shall not be impaired by any
acceptance by Beneficiary of any security for or guarantors upon
any of the Indebtedness or by any failure, neglect or omission on
the part of Beneficiary to realize upon or protect any of the
Indebtedness or any collateral security therefor including the
Other Loan Documents. The lien hereof shall not in any manner be
impaired or affected by any release (except as to the property
released), sale, pledge, surrender, compromise, settlement,
renewal, extension, indulgence, alteration, changing,
modification or any disposition of any of the Indebtedness or of
any of the collateral security therefor, including the Other Loan
Documents without first exercising or enforcing any of its rights
and remedies hereunder, or may foreclose, exercise any power of
sale, or exercise any other right available under this Deed of
Trust without first exercising or enforcing any of its rights and
remedies under any or all of the Other Loan Document. Such
exercise of Beneficiary's rights and remedies under any or all of
the Other Loan Documents shall not in any manner impair the
Indebtedness or lien of the Deed of Trust, and any exercise of
the rights or remedies of Beneficiary hereunder shall not impair
the lien of any of the Other Loan Documents or any of
Beneficiary's rights and remedies thereunder. Grantor
specifically consents and agrees that Beneficiary may exercise
its rights and remedies hereunder and under the Other Loan
Documents separately or concurrently and in any order that
Beneficiary may deem appropriate.
Section 5.13. Purchase Agreement Paramount. If and to the
extent that any of the provisions of this Deed of Trust conflict
or are otherwise inconsistent with any provisions of the Purchase
Agreement, the provisions of the Purchase Agreement shall
prevail.
Section 5.14. State Law Provisions, Waivers and
Agreements.
(i) For purposes of A.R.S. 33-801 through 821 (the "Deed
of Trust Act"), GRANTOR herein shall be the "Trustor". Beneficiary,
Trustee and Trustor shall have all rights, benefits and remedies
conferred or contemplated by the Deed of Trust Act.
Notwithstanding the foregoing, Beneficiary may, at its option in
its sole discretion, elect to foreclose this Deed of Trust
judicially as authorized by A.R.S. 33-807. For purposes of
this Deed of Trust, the terms "Trustor" and "Grantor" are
synonymous.
(ii) It is Trustor's intention that the obligations of
Trustor to pay and perform each and all of the secured obligations be
governed according to the express, bargained-for terms hereof and
of the other Loan Documents. The interest rate and terms
applicable to the Note and the other Loan Documents have been
negotiated and agreed to by Beneficiary upon that basis.
Therefore, to the fullest extent allowable under Arizona law,
Trustor hereby expressly waives all provisions of Arizona law
(including, without limitation, those specifically referenced
below) which might otherwise be construed, contrary to the terms
of the Loan Documents, to limit the liability of Trustor with
respect to the secured obligations, and hereby expressly agrees
that no such provision of law shall be applicable to such secured
obligations. To that end, Trustor expressly:
(A) waives all provisions of A.R.S. 33-814 which
purport to limit the time within which an action upon a Deficiency
may be commenced, or to eliminate any Deficiency if such an action
is not commenced within such time limits, and agrees that such
provisions shall not apply to any Deficiency following a
trustee's sale under this Deed of Trust; and
(B) waives and agrees not to assert any and all rights,
benefits and defenses which might otherwise be available under the
provisions of A.R.S. 00-0000-0000, or Arizona Rules of Civil
Procedure Rule 17(f).
(iii) Proceeds from any sale under the Deed of Trust Act
shall be applied in accordance with A.R.S. 33-812.
(iv) Usury. Trustor hereby agrees to pay an effective rate
of interest that is the sum of the interest rate provided for in the
Notes, together with any additional rate of interest resulting
from any other charges of interest or in the nature of interest
paid or to be paid in connection with the Loan, including,
without limitation, the loan fee (as defined in the Notes) and
any other fees to be paid by Trustor pursuant to the provisions
of the loan documents.
(v) Grant of Security Interest. Trustor grants to
Beneficiary a Security Interest in all present and future right, title,
interest, and claims of Trustor in and to any equipment,
fixtures, general intangibles, and all other personal property
included in the Premises to secure payment and performance of the
Obligations. This Deed of Trust is a Security Agreement and a
Financing Statement for all purposes of the Uniform Commercial
Code and Beneficiary shall be entitled to all of the rights and
remedies of a "secured party" under the Uniform Commercial Code.
Upon its recording in the real property records, this Deed of
Trust constitutes a fixture filing under Sections 47-9334 and 47-
9502 of the Uniform Commercial Code, as amended or recodified.
This Deed of Trust shall also be effective as a financing
statement covering as extracted collateral (including oil and
gas), accounts, and general intangibles under the Uniform
Commercial Code. In addition, a carbon, photographic or other
reproduced copy of this Deed of Trust and/or any financing
statement relating hereto shall be sufficient for filing and/or
recording as a financing statement. The filing of any other
financing statement relating to any personal property, rights or
interests described herein shall not be construed to diminish any
right or priority hereunder.
IN WITNESS WHEREOF, this Deed of Trust, Assignment of
Rents, Security Agreement and Fixture Filing has been duly
executed by the Grantor on the date first above written.
AMERICAN WATER STAR, INC., a Nevada
corporation
By:________________________
Name:______________________
Title:_____________________
"GRANTOR"
STATE OF )
) ss:
COUNTY OF )
The above instrument was acknowledged before me this
___ day of July, 2005, by __________________, the _______________
of AMERICAN WATER STAR, INC., a Nevada corporation, on behalf of
the corporation.
________________________
Notary Public
My Commission Expires:
__________________________
SCHEDULE A
TO
DEED OF TRUST, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
Title to Premises: The right, title and interest of the Grantor
constitutes good, marketable and insurable title to the Premises
fee and clear of all liens other than:
NONE
