TENANT OCCUPANCY ESCROW AND SECURITY AGREEMENT
Loan No. 1700020082
Property: Green Valley Mall
Green Valley, Arizona
THIS TENANT OCCUPANCY ESCROW AND
SECURITY AGREEMENT (this "Agreement") is made as of September 23, 1997, by and
between CONCORD MILESTONE PLUS, L.P., a Delaware limited partnership
("Borrower"), and WESTCO REAL ESTATE FINANCE CORP., a California corporation
("Lender"), with respect to the following facts:
A. Lender is making a loan to Borrower evidenced by
a promissory note in the principal amount of $5,400,000 payable to the order of
Lender (the "Note").
B. The Note is secured by a Deed of Trust (the
"Mortgage") of even date therewith encumbering property more particularly
described therein (the "Mortgaged Property").
C. Lender requires, as a condition to making the loan
evidenced by the Note, that Borrower deposit funds with Lender until certain
tenant occupancy requirements respecting the Mortgage Property are satisfied.
NOW, THEREFORE, in consideration of the foregoing,
the covenants and conditions contained in this Agreement and other good and
valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, Borrower and Lender hereby agree as follows:
1. Delivery of Funds. Borrower has deposited with
Lender as of the date hereof the amount of $150,000 (the "Funds"). The Funds
shall be held and released by Lender in accordance with the terms and conditions
of this Agreement. Lender shall have the sole right to make withdrawals of the
Funds. The Funds shall not constitute a trust fund and may be commingled with
other monies held by Lender. The Funds shall be held in an account in Lender's
name (or such other account name style as Lender may elect) at a financial
institution or other depository selected by Lender (or its servicer) in its sole
discretion (the "Depository Institution"). Borrower shall be entitled to, and
shall report under its Federal tax identification number, the amount allocated
to Borrower by Lender, if any, on the Funds. Lender shall allocate to Borrower
an amount on the Funds equal to an amount determined by applying to the average
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monthly balance of the Funds the quoted interest rate for the Depository
Institution's business money market savings account, as such rate changes from
time to time (such allocated amount being referred to as "Borrower's Interest").
If such Depository Institution quotes more than one interest rate for a business
money market savings account, then the lowest of such rates will be used. If the
Depository Institution does not have an established business money market
savings account (or if an interest rate for such account cannot otherwise be
determined in connection with the deposit of such Funds), a comparable interest
rate as quoted by Bank of America NT & SA shall be used. Borrower's Interest,
less applicable administrative fees (if any), shall be and become part of such
Funds and shall be disbursed as provided in this section. Lender shall not be
responsible for obtaining a specific return or yield on such deposit. Lender
will cause to be furnished to Borrower on an annual basis such income tax
reporting forms as are required by applicable federal law. Lender shall provide
account statements not less frequently than quarterly to Borrower with respect
to the funds, including current balance and accruals of interest thereon.
2. Security Interest. To secure Borrower's repayment
of the Note and performance of all other covenants and conditions required on
the part of Borrower to be observed or performed hereunder and under the Loan
Documents, Borrower hereby pledges to and grants to Lender a continuing security
interest in the Funds.
3. Release of Funds. Lender shall release the Funds
to Borrower upon the satisfaction of the following conditions:
(a) Existing tenant ABCO Realty Corp., an Arizona
corporation ("ABCO"), or a new tenant, shall have entered into a new lease or
lease renewal with Borrower with respect to the premises currently occupied by
ABCO, providing for a lease termination date of July 31, 2004 or later, on
substantially the same or better terms as Borrower's current lease with ABCO
(including, without limitation, at a rental rate equal to or better than is
provided in the existing lease with ABCO), and which shall otherwise be in form
and substance reasonably acceptable to Lender.
(b) No Event of Default (as defined in the
Mortgage) shall then exist, nor shall any condition exist which, with the
passage of time or the giving of notice (or both), would constitute an Event of
Default.
4. Term; Termination. Unless otherwise released in
accordance with the terms of this Agreement, the Funds shall remain on deposit
with Lender for so long as any sums remain due and payable to Lender under the
Loan Documents. Upon the payment in full of all sums payable to Lender under the
Loan Documents, Lender shall deliver the Funds to Borrower. Upon the occurrence
of an Event of Default, Lender may terminate this Agreement and retain all Funds
then being held pursuant to this Agreement and apply such Funds in such order
and in such amounts as Lender shall elect, in its sole and absolute discretion,
to payment of the
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indebtedness evidenced by the Note and the Loan Documents.
5. Remedies Cumulative. No right or remedy
conferred upon or reserved to Lender under this Agreement is intended to be
exclusive of any other right or remedy, and each and every such right and remedy
shall be cumulative and concurrent and may be enforced separately, successively
or together, and may be exercised from time to time as often as may be deemed
necessary by Lender.
6. Miscellaneous.
(a) Any capitalized term utilized herein shall have
the meaning as specified in the Mortgage, unless such term is otherwise
specifically defined herein.
(b) Except as otherwise expressly provided herein,
in any instance where the consent or approval of Lender is required or may be
given or where any determination, judgment or decision is to be rendered by
Lender under this Agreement, such approval and consent shall be given or
withheld in Lender's sole and absolute discretion.
(c) All notices hereunder shall be given in
accordance with the provisions of the Mortgage.
(d) This Agreement shall be binding upon Borrower
and its heirs, devisees, representatives, successors and assigns, including
successors in interest of Borrower in and to all or any part of the Mortgaged
Property, and shall inure to the benefit of and may be enforced by and binding
upon Lender and its heirs, successors, legal representatives, substitutes and
assigns. Borrower shall not assign any of its rights or obligations under this
Agreement.
(e) This Agreement is intended solely for the
benefit of Lender and Lender, and no third party shall have any right or
interest in this Agreement, nor any right to enforce this Agreement against any
party hereto.
(f) This Agreement may not be modified, amended,
waived, extended, changed, discharged or terminated orally or by any act or
failure to act on the part of Borrower and Lender, but only by an agreement in
writing signed by the party against whom the enforcement of any modification,
amendment, waiver, extension, change, discharge or termination is sought.
(g) This Agreement contains the complete and
entire understanding of the parties with respect to the subject matter thereof.
If any provisions of this Agreement shall conflict with any provisions of the
other Loan Documents regarding the Funds
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the provisions contained in this Agreement shall control.
(h) The invalidity, illegality, or unenforceability
of any provision of this Agreement pursuant to judicial decree shall not affect
the validity, legality or enforceability of any other provisions of this
Agreement which can be effected with such invalid, illegal or unenforceable
provision, all of which shall remain in full force and effect.
(i) THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED ACCORDING TO THE LAWS, FROM TIME TO TIME IN EFFECT, OF THE
STATE OF ARIZONA AND THE LAWS OF THE UNITED STATES OF AMERICA.
IN WITNESS WHEREOF, Borrower and Lender have
executed this Agreement as of the date first above written.
BORROWER:
CONCORD MILESTONE PLUS, L.P.,
a Delaware limited partnership
By: CM PLUS CORPORATION,
a Delaware corporation,
Its General Partner
By:
Name:
Title:
LENDER:
WESTCO REAL ESTATE FINANCE CORP.,
a California corporation
By:
Name:
Title:
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