Exhibit 10.7
RECORDING REQUESTED BY
Northwestern Mutual Life
When Recorded Mail to:
The Northwestern Mutual Life
Insurance Company
Xxxxx Xxxxxx - Room N16WC
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Loan Nos. C-337153/337112
SECOND DEED OF TRUST AND SECURITY AGREEMENT
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(SECOND PRIORITY - TOWNE CENTRE PROJECT)
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CALIFORNIA
LOAN NOS. 337153/337112
RECORDING REQUESTED BY
_____________________
WHEN RECORDED MAIL TO
The Northwestern Mutual Life Ins. Co.
000 Xxxx Xxxxxxxxx Xxxxxx - Xx X00XX
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
SPACE ABOVE THIS LINE FOR RECORDER'S USE
SECOND DEED OF TRUST AND SECURITY AGREEMENT
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(SECOND PRIORITY - TOWNE CENTRE PROJECT)
THIS SECOND DEED OF TRUST and SECURITY AGREEMENT is made as of the 28th
day of December, 2004 between BMR - 0000 XXXXX XXXXXX XXXXX LLC, a Delaware
limited liability company, whose mailing address is c/o BioMed Realty Trust,
Inc., 00000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000, herein called
"Grantor", and THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, a Wisconsin
corporation, whose mailing address is 000 X. Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX
00000, herein called "Trustee", and THE NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY, a Wisconsin corporation, whose mailing address is 000 X. Xxxxxxxxx
Xxxxxx, Xxxxxxxxx, XX 00000, herein called "Beneficiary":
WITNESSETH, that Grantor, in consideration of the indebtedness herein
mentioned, does hereby irrevocably bargain, sell, grant, transfer, assign and
convey unto Trustee, in trust, with power of sale and right of entry and
possession, the following property (herein referred to as the "Towne Centre
Project"):
A. The land in the City of San Diego, County of San Diego, State of
California, described in Exhibit "A" attached hereto and
incorporated herein (the "Land");
B. All easements, appurtenances, tenements and hereditaments belonging
to or benefiting the Land, including but not limited to all waters,
water rights, water courses, all ways, trees, rights, liberties and
privileges;
C. All improvements to the Land, including, but not limited to, all
buildings, structures and improvements now existing or hereafter
erected on the Land; all fixtures and equipment of
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every description belonging to Grantor which are or may be placed or
used upon the Land or attached to the buildings, structures or
improvements, including, but not limited to, all engines, boilers,
elevators and machinery, all heating apparatus, electrical
equipment, air-conditioning and ventilating equipment, water and gas
fixtures, and all furniture and easily removable equipment; all of
which, to the extent permitted by applicable law, shall be deemed an
accession to the freehold and a part of the realty as between the
parties hereto; and
D. Grantor's interest in all articles of personal property of every
kind and nature whatsoever, including, but not limited to all
carpeting, draperies, ranges, ovens, microwave ovens, refrigerators,
dishwashers, furniture, dehumidification equipment, laboratory
equipment, etc., now or hereafter located upon the Land or in or on
the buildings and improvements and now owned or leased or hereafter
acquired or leased by Grantor.
Grantor agrees not to sell, transfer, assign or remove any material item
described in B, C and D above now or hereafter located on the Land without prior
written consent from Beneficiary unless (i) such action does not constitute a
sale or removal of any buildings or structures or the sale or transfer of waters
or water rights and (ii) such action results in the substitution or replacement
with similar items of equal value.
Without limiting the foregoing grants, Grantor hereby pledges to Beneficiary,
and grants to Beneficiary a security interest in, all of Grantor's present and
hereafter acquired right, title and interest in and to the Towne Centre Project
and any and all
E. cash and other funds now or at any time hereafter deposited by or
for Grantor on account of tax, special assessment, replacement or
other reserves required to be maintained pursuant to the Loan
Documents (as hereinafter defined) with Beneficiary or a third
party, or otherwise deposited with, or in the possession of,
Beneficiary pursuant to the Loan Documents; and
F. surveys, soils reports, environmental reports, guaranties,
warranties, architect's contracts, construction contracts, drawings
and specifications, applications, permits, surety bonds and other
contracts relating to the acquisition, design, development,
construction and operation of the Towne Centre Project; and
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G. accounts, chattel paper, deposit accounts, instruments, equipment,
inventory, documents, general intangibles, letter-of-credit rights,
investment property and all other personal property of Grantor;
H. present and future rights to condemnation awards, insurance proceeds
or other proceeds at any time payable to or received by Grantor on
account of the Towne Centre Project or any of the foregoing personal
property; and
I. tenant security deposits (whether in the form of cash, letter of
credit or other instrument) required by the terms of the lease with
Illumina, Inc., and by any other lease now or hereafter in effect at
the Towne Centre Project.
All personal property hereinabove described is hereinafter referred to as the
"Personal Property".
If any of the Towne Centre Project is of a nature that a security interest
therein can be perfected under the Uniform Commercial Code, this instrument
shall constitute a security agreement and financing statement if permitted by
applicable law and Grantor authorizes Beneficiary to file a financing statement
describing such Towne Centre Project and, at Beneficiary's request, agrees to
join with Beneficiary in the execution of any financing statements and to
execute any other instruments that may be necessary or desirable, in
Beneficiary's determination, for the perfection or renewal of such security
interest under the Uniform Commercial Code.
TO HAVE AND TO HOLD the same unto Trustee for the purpose of securing on a
pari passu basis:
(a) Payment to the order of Beneficiary of the indebtedness evidenced by a
promissory note of even date herewith (and any restatement, extension or renewal
thereof and any amendment thereto) executed by BMR-BAYSHORE BOULEVARD LLC
("Bayshore LLC"), a Delaware limited liability company for the principal sum of
SIXTEEN MILLION FOUR HUNDRED THIRTY SEVEN THOUSAND SIX HUNDRED TWENTY SIX
DOLLARS, with final maturity no later than January 1, 2010 and with interest as
therein expressed (which promissory note, as such instrument may be amended,
restated, renewed and extended, is hereinafter referred to as the "Bayshore
Note"), it being recognized that the funds may not have been fully advanced as
of the date hereof but may be advanced in the future in accordance with the
terms of a written contract; and
(b) Payment to the order of Beneficiary of the indebtedness evidenced by a
promissory note of even date herewith (and any restatement, extension or renewal
thereof and any amendment thereto) executed by XXX-0000 XXXXX XXXXX XXXXXXX LLC
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("Xxxxx Xxxxx Centre LLC"), a Delaware limited liability company for the
principal sum of TEN MILLION SIX THOUSAND SIX HUNDRED TWENTY SIX DOLLARS, with
final maturity no later than January 1, 2010 and with interest as therein
expressed (which promissory note, as such instrument may be amended, restated,
renewed and extended, is hereinafter referred to as the "Xxxxx Xxxxx Note"), it
being recognized that the funds may not have been fully advanced as of the date
hereof but may be advanced in the future in accordance with the terms of a
written contract; and
(c) Payment of all sums that may become due Beneficiary under the
provisions of, and the performance of each agreement of Grantor contained in,
the Loan Documents; and
"Loan Documents" has the meaning ascribed to it in that certain Master
Loan Agreement of even date herewith among Grantor (as Borrower), certain
Affiliates of Grantor and Beneficiary (as Lender) ("Master Loan Agreement"). Any
term capitalized herein and not expressly defined herein shall have the meaning
set forth in the Master Loan Agreement.
FIXTURE FILING. This Deed of Trust constitutes a financing statement, filed as a
fixture filing in the real estate records of the County of the State in which
the real estate described in Exhibit A is located, with respect to any and all
fixtures included within the term "Towne Centre Project" and "fixtures" under
this Deed of Trust and to any goods or other personal property that are now or
hereafter become a part of the Towne Centre Project as fixtures.
TO PROTECT THE SECURITY OF THIS SECOND DEED OF TRUST, GRANTOR COVENANTS
AND AGREES:
OWNERSHIP. Grantor represents that it owns the Towne Centre Project and has good
and lawful right to convey the same and that the Towne Centre Project is free
and clear from any and all encumbrances whatsoever, except for Permitted Liens,
as hereinafter defined. "Permitted Liens" means (i) encumbrances which appear in
the title evidence accepted by Beneficiary, (ii) the Permitted First Lien
defined in the provision below entitled "Other Liens," (iii) liens and
encumbrances on Personal Property incident to the ordinary course of business
that do not exceed $25,000 in the aggregate at any time.
Grantor does hereby forever warrant and shall forever defend the title and
possession thereof against the lawful claims of any and all persons whomsoever.
MAINTENANCE OF TOWNE CENTRE PROJECT AND COMPLIANCE WITH LAWS. Grantor agrees to
keep the buildings and other improvements now or hereafter erected on the Land
in good condition and repair, ordinary wear and tear excepted; not to commit or
suffer any waste; to comply with all laws, rules and regulations affecting the
Towne Centre Project; and to permit Beneficiary to enter at all reasonable times
for the purpose of inspection and of conducting, in a reasonable and proper
manner, such tests as Beneficiary determines to be
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necessary in order to monitor Grantor's compliance with applicable laws and
regulations regarding hazardous materials affecting the Towne Centre Project.
TENANTS USING CHLORINATED SOLVENTS. Grantor agrees not to lease any of the Towne
Centre Project, without the prior written consent of Beneficiary, to (i) dry
cleaning operations that perform dry cleaning on site with chlorinated solvents
or (ii) any other tenants that use chlorinated solvents in the operation of
their businesses.
Notwithstanding the above, a tenant's use of a product which contains no more
than sixteen (16) ounces of chlorinated solvents, in solution or in pure form,
shall not violate this prohibition if, and only if, (i) tenant's use, storage,
and the ultimate disposal of, said solvents is at all times in compliance with
applicable law, and (ii) said solvents are acquired and kept in prepackaged
containers.
Notwithstanding the foregoing, Beneficiary acknowledges that Illumina, Inc. as a
tenant at the Towne Centre Project requires the use of and maintains quantities
at the Towne Centre Project of certain chlorinated solvents as part of its
on-going operations, which currently include reportable quantities of
dichloromethane, used primarily in manufacturing, and non-reportable quantities
of other chlorinated solvents. The use and storage of such chlorinated solvent
by said tenant at the Towne Centre Project shall be limited to research and
development use, vivarium use, warehouse use, manufacturing use and laboratory
use and shall be permitted if, and only if, (i) said tenant's use, storage, and
the ultimate disposal of said chlorinated solvent shall and shall at all times
be in compliance with applicable law; (ii) said solvents are acquired and kept
in containers specifically designed to safely hold said solvent; and (iii) once
a year an environmental engineer selected by Beneficiary shall inspect the Towne
Centre Project to verify tenant's compliance with (i) and (ii).
The permitted use of the above solvent by Illumina does not constitute approval
of the use by Illumina of any other chlorinated solvent at the Towne Centre
Project, nor the use of chlorinated solvents at the Towne Centre Project by any
other tenant (except as permitted by the second grammatical paragraph of this
provision), nor their use at any other property securing the Loan.
BUSINESS RESTRICTION REPRESENTATION AND WARRANTY. Grantor represents and
warrants that Grantor, all persons and entities owning (directly or indirectly)
an ownership interest in Grantor, all guarantors of all or any portion of the
Indebtedness, and all persons and entities executing any separate indemnity
agreement in favor of Beneficiary in connection with the Indebtedness: (i) are
not, and shall not become, a person or entity with whom Beneficiary is
restricted from doing business under regulations of the Office of Foreign Asset
Control ("OFAC") of the Department of the Treasury (including, but not limited
to, those named on OFAC's Specially Designated and Blocked Persons list) or
under any statute, executive order (including, but not limited to, the September
24, 2001 Executive Order Blocking Property and Prohibiting Transactions With
Persons Who Commit, Threaten to Commit, or Support Terrorism), or other
governmental action; (ii) are not knowingly
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engaged in, and shall not engage in, any dealings or transaction or be otherwise
associated with such persons or entities described in (i) above; and (iii) are
not, and shall not become, a person or entity whose activities are regulated by
the International Money Laundering Abatement and Financial Anti-Terrorism Act of
2001 or the regulations or orders thereunder.
INSURANCE. Grantor covenants to maintain all insurance and apply insurance
proceeds as required by Article IX (Insurance; Application of Insurance Loss
Proceeds) of the Master Loan Agreement.
CONDEMNATION. Grantor assigns Condemnation Proceeds to Beneficiary and agrees
that such proceeds shall be applied as set forth in the Master Loan Agreement.
TAXES AND SPECIAL ASSESSMENTS. Grantor agrees to pay before delinquency all
taxes and special assessments of any kind that have been or may be levied or
assessed against the Towne Centre Project, this instrument, the Note or the
Indebtedness, or upon the interest of Trustee or Beneficiary in the Towne Centre
Project, this instrument, the Note or the Indebtedness, and to procure and
deliver to Beneficiary within thirty (30) days after Beneficiary shall have
given a written request to Grantor, the official receipt of the proper officer
showing timely payment of all such taxes and assessments; provided, however,
that Grantor shall not be required to pay any such taxes or special assessments
if the amount, applicability or validity thereof shall currently be contested in
good faith by appropriate proceedings and funds sufficient to satisfy the
contested amount have been deposited in an escrow satisfactory to Beneficiary.
PERSONAL PROPERTY. With respect to the Personal Property, Grantor hereby
represents, warrants and covenants as follows:
(a) Except for the security interest granted hereby and Permitted Liens,
Grantor is, and as to portions of the Personal Property to be acquired after the
date hereof will be, the sole owner of the Personal Property, free from any
lien, security interest, encumbrance or adverse claim thereon of any kind
whatsoever. Grantor shall notify Beneficiary of, and shall indemnify and defend
Beneficiary and the Personal Property against, all claims and demands of all
persons at any time claiming the Personal Property or any part thereof or any
interest therein.
(b) Except as otherwise provided above, Grantor shall not lease, sell,
convey or in any manner transfer any material item of the Personal Property
without the prior consent of Beneficiary.
(c) Grantor is a limited liability company organized under the laws of the
State of Delaware. Until the Indebtedness is paid in full, Grantor (i) shall not
change its legal
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name without providing Beneficiary with thirty (30) days' prior written notice;
and (ii) shall not change its state of organization; and (iii) shall preserve
its existence and shall not, in one transaction or a series of transactions,
merge into or consolidate with any other entity.
(d) At the request of Beneficiary, Grantor shall join Beneficiary in
executing one or more financing statements and continuations and amendments
thereof pursuant to the Uniform Commercial Code in form satisfactory to
Beneficiary, and Grantor shall pay the cost of filing the same in all public
offices wherever filing is deemed by Beneficiary to be necessary or desirable.
Grantor shall also, at Grantor's expense, take any and all other action
requested by Beneficiary to perfect Beneficiary's security interest under the
Uniform Commercial Code with respect to the Personal Property, including,
without limitation, exercising Grantor's best efforts to obtain any consents,
agreements or acknowledgments required of third parties to perfect Beneficiary's
security interest in Personal Property consisting of deposit accounts,
letter-of-credit rights, investment property, and electronic chattel paper.
OTHER LIENS. Grantor agrees to keep the Towne Centre Project and any Personal
Property free from all other liens either prior or subsequent to the lien
created by this instrument, except for the first priority lien in favor of
Beneficiary securing a certain loan in the original principal amount of
$22,855,734.00 of even date herewith by Beneficiary to Grantor's Affiliates
("Permitted First Lien") and other Permitted Liens. The (i) creation of any
other lien on any portion of the Towne Centre Project or on any Personal
Property, whether or not prior to the lien created hereby, (ii) assignment or
pledge by Grantor of its revocable license to collect, use and enjoy rents and
profits from the Towne Centre Project, or (iii) granting or permitting of a
security interest in or other encumbrance on the ownership interests in Grantor,
shall constitute a default under the terms of this instrument; except that upon
written notice to Beneficiary, Grantor may, after the Loan Closing Date, proceed
to contest in good faith and by appropriate proceedings any mechanics liens, tax
liens or judgment liens with respect to the Towne Centre Project or any Personal
Property described herein, provided funds sufficient to satisfy the contested
amount have been deposited in an escrow account satisfactory to Beneficiary.
LEASES. Grantor covenants with Beneficiary (a) to observe and perform in all
material respects all the obligations imposed upon the lessor under all leases
and not to do or permit to be done anything to impair the same without
Beneficiary's prior written consent, (b) not to collect any of the rent or other
amounts due under any lease or other issues or profits from the Towne Centre
Project in any manner in advance of the time when the same shall become due
(save and except only for collecting one month's rent in advance plus the
security deposit, if any, at the time of execution of a lease), (c) not to
execute any other assignment of rents, issues or profits arising or accruing
from any of the leases or from the Towne Centre Project, except the assignment
of leases and rents given in connection with the Permitted First Lien (d) not to
enter into any lease agreement affecting the Towne Centre Project, except those
leases entered into in the
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ordinary course of business and utilizing Grantor's standard form lease
previously approved by Beneficiary, with no substantial modifications thereto,
without the prior written consent of Beneficiary, (e) to execute and deliver, at
the request of Beneficiary, all such further assurances and acknowledgments of
the assignment contained herein and the other provisions hereof, with respect to
specific leases or otherwise, as Beneficiary shall from time to time require,
(f) to obtain from any tenant at the Towne Centre Project, from time to time as
requested by Beneficiary, estoppel certificates, in form and substance
satisfactory to Beneficiary, confirming the terms of such tenant's lease and the
absence of default thereunder, and (g) not to cancel, surrender or terminate any
lease, exercise any option which might lead to such termination or consent to
any change, modification, or alteration thereof, to the release of any party
liable thereunder or to the assignment of the lessee's interest therein, without
the prior written consent of Beneficiary, and any of said acts, if done without
the prior written consent of Beneficiary, shall be null and void.
Notwithstanding clause (g) of the preceding sentence, with respect to all leases
(other than leases as to which Beneficiary, Grantor and tenant have executed a
separate non-disturbance and attornment agreement), Grantor may take the actions
described in clause (g) without Beneficiary's prior written consent (but with
written notice thereof to Beneficiary), if and only if such action is consistent
with the usual and customary operation of the Towne Centre Project.
INDEMNIFICATION, DUTY TO DEFEND AND COSTS, FEES AND EXPENSES. In addition to any
other indemnities by Grantor contained in the Loan Documents, Grantor shall
indemnify, defend and hold Beneficiary harmless from and against any and all
losses, liabilities, claims, demands, damages, costs and expenses (including,
but not limited to, costs of title evidence and endorsements to Beneficiary's
title insurance policy with respect to the Towne Centre Project and reasonable
attorney fees and other costs of defense) of this trust which may be imposed
upon, incurred by or asserted against Beneficiary, whether or not any legal
proceeding is commenced with regard thereto, in connection with: (i) the
enforcement of any of Beneficiary's or Trustee's rights or powers under the Loan
Documents; (ii) the protection of Beneficiary's interest in the Towne Centre
Project; or (iii) any accident, injury to or death of persons or loss of or
damage to property occurring in, on or about the Towne Centre Project or on any
sidewalk, curb, parking area, space or street located adjacent thereto, except
in the case of matters in (iii) to the extent caused by Beneficiary's gross
negligence or willful misconduct. If any claim or demand is made or asserted
against Beneficiary by reason of any event as to which Grantor is obligated to
indemnify or defend Beneficiary, then, upon demand by Beneficiary, Grantor, at
Grantor's sole cost and expense, shall defend such claim, action or proceeding
in Beneficiary's name, if necessary, by such attorneys as Beneficiary shall
reasonably approve. Notwithstanding the foregoing, Beneficiary may, in
Beneficiary's sole discretion, engage its own attorneys to defend it or assist
in its defense and Grantor shall pay the reasonable fees and disbursements of
such attorneys.
FAILURE OF GRANTOR TO ACT. If Grantor fails to make any payment or do any act as
herein provided and such failure constitutes an Event of Default, Beneficiary or
Trustee may,
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without obligation to do so, without notice to or demand upon Grantor and
without releasing Grantor from any obligation hereof: (i) make or do the same in
such manner and to such extent as Beneficiary may deem necessary to protect the
security hereof, Beneficiary or Trustee being authorized to enter upon the Towne
Centre Project for such purpose; (ii) appear in and defend any action or
proceeding purporting to affect the security hereof, or the rights or powers of
Beneficiary or Trustee; (iii) pay, purchase, contest or compromise any
encumbrance, charge or lien which in the judgment of Beneficiary appears to be
prior or superior hereto; and (iv) in exercising any such powers, pay necessary
expenses, employ counsel and pay its reasonable fees. Sums so expended and all
losses, liabilities, claims, damages, costs and expenses required to be
reimbursed by Grantor to Beneficiary hereunder shall be payable by Grantor
immediately upon demand with interest from date of expenditure or demand, as the
case may be, at the Default Rate (as defined in the Note). All sums so expended
or demanded by Beneficiary and the interest thereon shall be included in the
Indebtedness and secured by the lien of this instrument.
DEFAULT; EVENT OF DEFAULT. The terms "Default" and "Event of Default" shall have
the meaning ascribed in the Master Loan Agreement.
SUBSTITUTION OF TRUSTEE. Beneficiary and its successors and assigns may for any
reason and at any time appoint a new or substitute Trustee by written
appointment delivered to such new or substitute Trustee without notice to
Grantor, without notice to, or the resignation or withdrawal by, the existing
Trustee and without recordation of such written appointment unless notice or
recordation is required by the laws of the jurisdiction in which the Towne
Centre Project is located. Upon delivery of such appointment, the new or
substitute Trustee shall be vested with the same title and with the same powers
and duties granted to the original Trustee.
APPOINTMENT OF RECEIVER. Upon commencement of any proceeding to enforce any
right under this instrument, including foreclosure thereof, after the occurrence
and during the continuance of an Event of Default, Beneficiary (without
limitation or restriction by any present or future law, without regard to the
solvency or insolvency at that time of any party liable for the payment of the
Indebtedness, without regard to the then value of the Towne Centre Project,
whether or not there exists a threat of imminent harm, waste or loss to the
Towne Centre Project and whether or not the same shall then be occupied by the
owner of the equity of redemption as a homestead) shall have the absolute right
to the appointment of a receiver of the Towne Centre Project and of the
revenues, rents, profits and other income therefrom, and said receiver shall
have (in addition to such other powers as the court making such appointment may
confer) full power to collect all such income and, after paying all necessary
expenses of such receivership and of operation, maintenance and repair of said
Towne Centre Project, to apply the balance to the payment of any of the
Indebtedness then due.
FORECLOSURE. Upon the occurrence and during the continuance of an Event of
Default, the entire unpaid Indebtedness shall, at the option of Beneficiary,
become immediately due and
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payable for all purposes without any notice or demand, except as required by law
(ALL OTHER NOTICE OF THE EXERCISE OF SUCH OPTION, OR OF THE INTENT TO EXERCISE
SUCH OPTION, BEING HEREBY EXPRESSLY WAIVED), and Beneficiary may, in addition to
exercising any rights it may have with respect to the Personal Property under
the Uniform Commercial Code of the jurisdiction in which the Towne Centre
Project is located, institute proceedings in any court of competent jurisdiction
to foreclose this instrument as a mortgage, or to enforce any of the covenants
hereof, or Trustee or Beneficiary may, to the extent permitted by applicable
law, either personally or by agent or attorney in fact, enter upon and take
possession of the Towne Centre Project and may manage, rent or lease the Towne
Centre Project or any portion thereof upon such terms as Beneficiary may deem
expedient, and collect, receive and receipt for all rentals and other income
therefrom and apply the sums so received as hereinafter provided in case of
sale. Trustee is hereby further authorized and empowered, either after or
without such entry, to sell and dispose of the Towne Centre Project en masse or
in separate parcels (as Trustee may think best), and all the right, title and
interest of Grantor therein, by advertisement or in any manner provided by
applicable law, (GRANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO A HEARING PRIOR TO
SUCH SALE), and to issue, execute and deliver a deed of conveyance, all as then
may be provided by applicable law; and Trustee, to the extent permitted by
applicable law, shall, out of the proceeds or avails of such sale, after first
paying and retaining all fees, charges, costs of advertising the Towne Centre
Project and of making said sale, and attorneys' fees as herein provided, pay to
Beneficiary or the legal holder of the Indebtedness the amount thereof,
including all sums advanced or expended by Beneficiary or the legal holder of
the Indebtedness, with interest from date of advance or expenditure at the
Default Rate, rendering the excess, if any, as provided by the Master Loan
Agreement; such sale or sales and said deed or deeds so made shall be a
perpetual bar, both in law and equity, against Grantor, the heirs, successors
and assigns of Grantor, and all other persons claiming the Towne Centre Project
aforesaid, or any part thereof, by, from, through or under Grantor. The legal
holder of the Indebtedness may purchase the Towne Centre Project or any part
thereof, and it shall not be obligatory upon any purchaser at any such sale to
see to the application of the purchase money.
PROHIBITION ON TRANSFER. The present ownership and management of the Towne
Centre Project is a material consideration to Beneficiary in making the loan
secured by this instrument, and except as expressly permitted in the Master Loan
Agreement, Grantor shall not (i) convey title to all or any part of the Towne
Centre Project, (ii) enter into any contract to convey (land
contract/installment sales contract/contract for deed) title to all or any part
of the Towne Centre Project which gives a purchaser possession of, or income
from, the Towne Centre Project prior to a transfer of title to all or any part
of the Towne Centre Project or (iii) cause or permit a Change in the
Proportionate Ownership of Grantor (as defined in the Master Loan Agreement).
DEPOSITS BY GRANTOR. To assure the timely payment of real estate taxes and
special assessments (including personal property taxes, if appropriate), upon
the occurrence and during the continuance of an Event of Default, Beneficiary
shall thenceforth have the
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option to require Grantor to deposit funds with Beneficiary or in an account
satisfactory to Beneficiary, in monthly or other periodic installments in
amounts estimated by Beneficiary from time to time sufficient to pay real estate
taxes and special assessments as they become due. If at any time the funds so
held by Beneficiary, or in such other account, shall be insufficient to pay any
of said expenses, Grantor shall, upon receipt of notice thereof, immediately
deposit such additional funds as may be necessary to remove the deficiency. All
funds so deposited shall be irrevocably appropriated to Beneficiary to be
applied to the payment of such real estate taxes and special assessments and, at
the option of Beneficiary during an Event of Default, the Indebtedness.
SURETYSHIP WAIVERS. The obligations contained herein are intended to be direct
obligations between Grantor and Beneficiary. However, if said obligations, or
any of them, should be determined to not be direct obligations but rather
suretyship obligations, Grantor agrees as follows:
(1) Without limiting or lessening the liability of Grantor under this
instrument, Beneficiary may, without notice to Grantor,
(a) grant extensions of time or any other indulgences on the
Indebtedness;
(b) take, give up, modify, vary, exchange, renew or abstain from
perfecting or taking advantage of any security for the Indebtedness;
and
(c) accept or make compositions or other arrangements with Bayshore LLC
and Xxxxx Xxxxx LLC, realize on any security and otherwise deal with
Bayshore LLC and Xxxxx Xxxxx LLC, other parties and any security as
Beneficiary may deem expedient.
(2) All additional demands, presentments, notices of protest and dishonor,
and notices of every kind and nature, including those of any action or no action
on the part of Bayshore LLC and Xxxxx Xxxxx LLC, Beneficiary or Grantor, are
expressly waived by Grantor. Grantor hereby waives the right to require
Beneficiary to proceed against Bayshore LLC and Xxxxx Xxxxx LLC or any other
party or to proceed against or apply any security it may hold, waives the right
to require Beneficiary to pursue any other remedy for the benefit of Grantor and
agrees that Beneficiary may proceed against Grantor without taking any action
against any other party and without proceeding against or applying any security
it may hold. Beneficiary may, at its election, foreclose upon any security held
by it in one or more judicial or non-judicial sales, whether or not every aspect
of such sale is commercially reasonable, without affecting or impairing the
liability of Grantor, except to the extent the Indebtedness shall have been
paid. Grantor waives all rights and defenses arising out of an election of
remedies by Beneficiary, even though that election of remedies, such as a
nonjudicial foreclosure of the Lien Instrument, has destroyed the Grantor's
right of subrogation and reimbursement against Bayshore LLC and Xxxxx Xxxxx LLC
by the operation of Section 580d of the California Code of Civil Procedure or
otherwise. Grantor waives all rights and defenses that Grantor may have because
Bayshore LLC and Xxxxx Xxxxx LLC's debt is secured by real property.
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This means, among other things, that (i) Beneficiary may foreclose on the real
or personal collateral pledged by Grantor without first foreclosing on any real
or personal collateral pledged by Bayshore LLC and Xxxxx Xxxxx LLC, and (ii) if
Beneficiary forecloses on any real property collateral pledged by Bayshore LLC
and Xxxxx Xxxxx LLC: (A) the amount of the debt may be reduced only by the price
for which that collateral is sold at the foreclosure sale, even if the
collateral is worth more than the sale price, and (B) Beneficiary may collect
from Grantor even if Beneficiary, by foreclosing on the real property
collateral, has destroyed any right Grantor may have to collect from Bayshore
LLC and Xxxxx Xxxxx LLC. This is an unconditional and irrevocable waiver of any
rights and defenses Grantor may have because Bayshore LLC's and Xxxxx Xxxxx
LLC's debt is secured by real property. These rights and defenses waived by
Grantor include, but are not limited to, any rights or defenses based upon
Sections 580a, 580b, 580d or 726 of the California Code of Civil Procedure.
Without limiting the foregoing, Grantor hereby waives any and all benefits that
might otherwise be available to Grantor under California Civil Code Sections
2809, 2810, 2819, 2839, 2845, 2849, 2850, 2899 and 3433.
SUBORDINATION. Notwithstanding anything to the contrary contained in this Second
Deed of Trust, the terms and provisions of this Second Deed of Trust and the
lien created hereby shall be subject and subordinate to the terms and provisions
of the First Lien Instrument, the lien created thereby and all modifications and
supplements thereto. The First Lien Instrument and the indebtedness secured
thereby, and any increases therein or renewals or extensions thereof, shall
unconditionally be and remain at all times a lien or charge on the Land prior
and superior to the lien or charge of this Second Deed of Trust.
NOTICES. Any notices, demands, requests and consents permitted or required
hereunder or under any other Loan Document shall be in writing, may be delivered
personally or sent by certified mail with postage prepaid or by reputable
courier service with charges prepaid. Any notice or demand sent to Grantor by
certified mail or reputable courier service shall be addressed to Grantor to the
attention of Xxxx X. Xxxxxxxx at c/o BioMed Realty Trust, Inc., 00000 Xxxxxxxx
Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000 or such other address in the United
States of America as Grantor shall designate in a notice to Beneficiary given in
the manner described herein. Any notice sent to Beneficiary by certified mail or
reputable courier service shall be addressed to The Northwestern Mutual Life
Insurance Company to the attention of the Real Estate Investment Department at
000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, or at such other addresses as
Beneficiary shall designate in a notice given in the manner described herein.
Any notice given to Beneficiary shall refer to the Loan No. set forth above. Any
notice or demand hereunder shall be deemed given when received. Any notice or
demand which is rejected, the acceptance of delivery of which is refused or
which is incapable of being delivered during normal business hours at the
address specified herein or such other address designated pursuant hereto shall
be deemed received as of the date of attempted delivery.
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MODIFICATION OF TERMS. Without affecting the liability of Grantor or any other
person (except any person expressly released in writing) for payment of the
Indebtedness or for performance of any obligation contained herein and without
affecting the rights of Beneficiary with respect to any security not expressly
released in writing, Beneficiary may, at any time and from time to time, either
before or after the maturity of the Note, without notice or consent: (i) release
any person liable for payment of all or any part of the Indebtedness or for
performance of any obligation; (ii) make any agreement extending the time or
otherwise altering the terms of payment of all or any part of the Indebtedness,
or modifying or waiving any obligation, or subordinating, modifying or otherwise
dealing with the lien or charge hereof; (iii) exercise or refrain from
exercising or waive any right Beneficiary may have; (iv) accept additional
security of any kind; or (v) release or otherwise deal with any property, real
or personal, securing the Indebtedness, including all or any part of the Towne
Centre Project.
EXERCISE OF OPTIONS. Whenever, by the terms of this instrument, of the Note or
any of the other Loan Documents, Beneficiary is given any option, such option
may be exercised when the right accrues, or at any time thereafter, and no
acceptance by Beneficiary of payment of Indebtedness in default shall constitute
a waiver of any default then existing and continuing or thereafter occurring.
NATURE AND SUCCESSION OF AGREEMENTS. Each of the provisions, covenants and
agreements contained herein shall inure to the benefit of, and be binding on,
the heirs, executors, administrators, successors, grantees, and assigns of the
parties hereto, respectively, and the term "Beneficiary" shall include the owner
and holder of the Note.
LEGAL ENFORCEABILITY. No provision of this instrument, the Note or any other
Loan Documents shall require the payment of interest or other obligation in
excess of the maximum permitted by law. If any such excess payment is provided
for in any Loan Documents or shall be adjudicated to be so provided, the
provisions of this paragraph shall govern and Grantor shall not be obligated to
pay the amount of such interest or other obligation to the extent that it is in
excess of the amount permitted by law.
LIMITATION OF LIABILITY. Notwithstanding any provision contained herein to the
contrary, the personal liability of Grantor shall be limited as provided in the
Master Loan Agreement.
CAPTIONS. The captions contained herein are for convenience and reference only
and in no way define, limit or describe the scope or intent of, or in any way
affect this instrument.
GOVERNING LAW. This instrument, the interpretation hereof and the rights,
obligations, duties and liabilities hereunder shall be governed and controlled
by the laws of the state of California.
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REQUEST FOR NOTICE. Pursuant to California Government Code Section 27321.5(b),
Grantor hereby requests that a copy of any notice of default and a copy of any
notice of sale given pursuant to this instrument be mailed to Grantor at the
address set forth herein.
IN WITNESS WHEREOF, this instrument has been executed by the Grantor as of the
day and year first above written.
BMR - 0000 XXXXX XXXXXX XXXXX LLC,
a Delaware limited liability company
By: BioMed Realty, L.P., a Maryland limited
partnership, its sole member
By: BioMed Realty Trust, Inc.,
a Maryland corporation, its
general partner
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------
Xxxx X. Xxxxxxxx,
Executive Vice President
STATE OF CALIFORNIA )
)ss.
COUNTY OF SAN DIEGO )
On December ____, 2004, before me, _______________________, personally appeared
Xxxx Xxxxxxxx personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature _______________________________
_________________________________________
Name (typed or printed)
Notary My Commission expires:_________________
This instrument was prepared by Xxxxx X. Xxxxx, Attorney, for The Northwestern
Mutual Life Insurance Company, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000.
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