Exhibit 99.1
RECORDING REQUESTED
BY AND WHEN
RECORDED RETURN TO:
Xxxx Xxxx, Esq.
Xxxxx & Xxxxxxxxx LLP
000 X. Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING
BY
XXXXXXX PROPERTIES - ONE CAL PLAZA, LLC,
a Delaware limited liability company,
as Trustor
TO
CHICAGO TITLE INSURANCE COMPANY,
a Missouri corporation,
as Trustee
for the benefit of
METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation,
as Beneficiary
November 6, 2003
TABLE OF CONTENTS
ARTICLE 1 GRANT OF SECURITY......................................................................... 3
1.1 REAL PROPERTY GRANT........................................................................... 3
1.2 PERSONAL PROPERTY GRANT....................................................................... 6
1.3 CONDITIONS TO GRANT........................................................................... 6
ARTICLE 2 TRUSTOR COVENANTS......................................................................... 7
2.1 DUE AUTHORIZATION, EXECUTION, AND DELIVERY.................................................... 7
2.2 PERFORMANCE BY TRUSTOR........................................................................ 7
2.3 WARRANTY OF TITLE............................................................................. 7
2.4 TAXES, LIENS AND OTHER CHARGES................................................................ 8
2.5 ESCROW DEPOSITS............................................................................... 8
2.6 CARE AND USE OF THE PROPERTY.................................................................. 9
2.7 COLLATERAL SECURITY INSTRUMENTS............................................................... 11
2.8 SUITS AND OTHER ACTS TO PROTECT THE PROPERTY.................................................. 11
2.9 LIENS AND ENCUMBRANCES........................................................................ 12
2.10 THE GROUND LEASE.............................................................................. 12
2.11 MAINTENANCE OF CENTRAL PLANT.................................................................. 16
ARTICLE 3 INSURANCE................................................................................. 16
3.1 REQUIRED INSURANCE AND TERMS OF INSURANCE POLICIES............................................ 16
3.2 ADJUSTMENT OF CLAIMS.......................................................................... 19
3.3 ASSIGNMENT TO BENEFICIARY..................................................................... 19
ARTICLE 4 BOOKS, RECORDS AND ACCOUNTS............................................................... 20
4.1 BOOKS AND RECORDS............................................................................. 20
4.2 PROPERTY REPORTS.............................................................................. 20
4.3 ADDITIONAL MATTERS............................................................................ 21
ARTICLE 5 LEASES AND OTHER AGREEMENTS AFFECTING THE PROPERTY........................................ 21
5.1 TRUSTOR'S REPRESENTATIONS AND WARRANTIES...................................................... 21
5.2 ASSIGNMENT OF LEASES.......................................................................... 22
5.3 PERFORMANCE OF OBLIGATIONS.................................................................... 22
5.4 SUBORDINATE LEASES............................................................................ 22
ii
5.5 LEASING COMMISSIONS........................................................................... 23
ARTICLE 6 ENVIRONMENTAL HAZARDS..................................................................... 23
6.1 REPRESENTATIONS AND WARRANTIES................................................................ 23
6.2 REMEDIAL WORK................................................................................. 24
6.3 ENVIRONMENTAL SITE ASSESSMENT................................................................. 24
6.4 UNSECURED OBLIGATIONS......................................................................... 24
6.5 HAZARDOUS MATERIALS........................................................................... 25
6.6 REQUIREMENTS OF ENVIRONMENTAL LAWS............................................................ 26
ARTICLE 7 CASUALTY, CONDEMNATION AND RESTORATION.................................................... 27
7.1 TRUSTOR'S REPRESENTATIONS..................................................................... 27
7.2 RESTORATION................................................................................... 27
7.3 CONDEMNATION.................................................................................. 28
7.4 REQUIREMENTS FOR RESTORATION.................................................................. 29
ARTICLE 8 REPRESENTATIONS OF TRUSTOR................................................................ 30
8.1 ERISA......................................................................................... 30
8.2 NON-RELATIONSHIP.............................................................................. 31
8.3 NO ADVERSE CHANGE............................................................................. 31
8.4 FOREIGN INVESTOR.............................................................................. 31
ARTICLE 9 EXCULPATION AND LIABILITY................................................................. 31
9.1 LIABILITY OF TRUSTOR.......................................................................... 31
ARTICLE 10 CHANGE IN OWNERSHIP, CONVEYANCE OF PROPERTY............................................... 33
10.1 CONVEYANCE OF PROPERTY, CHANGE IN OWNERSHIP AND COMPOSITION................................... 33
10.2 PROHIBITION ON SUBORDINATE FINANCING.......................................................... 35
10.3 RESTRICTIONS ON ADDITIONAL OBLIGATIONS........................................................ 35
10.4 STATEMENTS REGARDING OWNERSHIP................................................................ 35
ARTICLE 11 DEFAULTS AND REMEDIES..................................................................... 36
11.1 EVENTS OF DEFAULT............................................................................. 36
11.2 REMEDIES UPON DEFAULT......................................................................... 37
11.3 APPLICATION OF PROCEEDS OF SALE............................................................... 39
11.4 WAIVER OF JURY TRIAL.......................................................................... 39
11.5 BENEFICIARY'S RIGHT TO PERFORM TRUSTOR'S OBLIGATIONS.......................................... 39
iii
11.6 BENEFICIARY REIMBURSEMENT..................................................................... 39
11.7 FEES AND EXPENSES............................................................................. 39
11.8 WAIVER OF CONSEQUENTIAL DAMAGES............................................................... 40
11.9 INDEMNIFICATION OF TRUSTEE.................................................................... 40
11.10 ACTIONS BY TRUSTEE............................................................................ 40
11.11 SUBSTITUTION OF TRUSTEE....................................................................... 40
ARTICLE 12 TRUSTOR AGREEMENTS AND FURTHER ASSURANCES................................................. 40
12.1 PARTICIPATION AND SALE OF LOAN................................................................ 40
12.2 REPLACEMENT OF NOTE........................................................................... 41
12.3 TRUSTOR'S ESTOPPEL............................................................................ 41
12.4 FURTHER ASSURANCES............................................................................ 41
12.5 SUBROGATION................................................................................... 42
ARTICLE 13 SECURITY AGREEMENT........................................................................ 42
13.1 SECURITY AGREEMENT............................................................................ 42
13.2 REPRESENTATIONS AND WARRANTIES................................................................ 42
13.3 CHARACTERIZATION OF PROPERTY.................................................................. 43
13.4 PROTECTION AGAINST PURCHASE MONEY SECURITY INTERESTS.......................................... 43
ARTICLE 14 MISCELLANEOUS COVENANTS................................................................... 44
14.1 NO WAIVER..................................................................................... 44
14.2 NOTICES....................................................................................... 44
14.3 HEIRS AND ASSIGNS; TERMINOLOGY................................................................ 44
14.4 SEVERABILITY.................................................................................. 44
14.5 APPLICABLE LAW................................................................................ 45
14.6 CAPTIONS...................................................................................... 45
14.7 TIME OF THE ESSENCE........................................................................... 45
14.8 NO MERGER..................................................................................... 45
14.9 NO MODIFICATIONS.............................................................................. 45
14.10 JOINT AND SEVERAL LIABILITY................................................................... 45
14.11 COUNTERPARTS.................................................................................. 45
14.12 ENTIRE AGREEMENT.............................................................................. 45
14.13 NO THIRD PARTY BENEFICIARIES.................................................................. 45
iv
14.14 NON-DISCRIMINATION............................................................................ 45
v
DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING
DEFINED TERMS
EXECUTION DATE: November _6__, 2003
NOTE: The Promissory Note dated as of the Execution Date made by Trustor to the
order of Beneficiary in the principal amount of $146,250,000.00.
BENEFICIARY & ADDRESS: Metropolitan Life Insurance Company, a New York
corporation
00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Senior Vice President, Real Estate Investments
WITH A COPY TO: Metropolitan Life Insurance Company
000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Director and O.I.C.
AND TO: Metropolitan Life Insurance Company
000 Xxxxx Xx Xxxxxx Xxxx, Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Vice President
TRUSTOR & ADDRESS (CHIEF EXECUTIVE OFFICE):
Xxxxxxx Properties - One Cal Plaza, LLC, a Delaware limited liability company
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
WITH A COPY TO:
Xxxx X. Xxxxxx, Esq.
Xxxxxxxxx & Xxxxxx Professional Corp.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
TRUSTEE: Chicago Title Insurance Company
LIABLE PARTIES & ADDRESS:
Xxxxxxx Properties, L.P., a Maryland limited partnership
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
WITH A COPY TO:
Xxxx X. Xxxxxx, Esq.
Xxxxxxxxx & Xxxxxx Professional Corp.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
1
COUNTY AND STATE (THE "STATE") IN WHICH THE PROPERTY IS LOCATED: Los Angeles
County, State of California
USE: First-class office building and incidental retail use, and related parking.
INSURANCE: Commercial General Liability: Required Liability Limit:
$25,000,000.00
ADDRESS FOR INSURANCE NOTIFICATION:
Metropolitan Life Insurance Company
1 MetLife Plaza
00-00 Xxxxxx Xxxxx Xxxxx
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Attn: Risk Management--Area 7C
LOAN DOCUMENTS: The Note, this Deed of Trust and any other documents related
to the Note and/or this Deed of Trust (except the Indemnity Agreement and the
Guaranty) and all renewals, amendments, modifications, restatements and
extensions of these documents.
INDEMNITY AGREEMENT: Unsecured Indemnity Agreement dated as of the Execution
Date and executed by Trustor and Liable Parties in favor of Beneficiary.
GUARANTY: Guaranty of Recourse Obligations dated as of the Execution Date and
executed by Liable Parties.
The Indemnity Agreement and the Guaranty are not Loan Documents and shall
survive repayment of the Loan or other termination of the Loan Documents.
2
THIS DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING
(this "Deed of Trust") is entered into as of the Execution Date by Trustor to
Trustee for the benefit of Beneficiary with reference to the following Recitals:
RECITALS
A. This Deed of Trust secures: (1) the payment of the
indebtedness evidenced by the Note with interest at the rates set forth in the
Note, together with all renewals, modifications, consolidations and extensions
of the Note, all additional advances or fundings made by Beneficiary, and any
other amounts required to be paid by Trustor under any of the Loan Documents
(collectively, the "Secured Indebtedness" and sometimes referred to as the
"Loan") and (2) the full performance by Trustor of all of the terms, covenants
and obligations set forth in any of the Loan Documents.
B. Trustor makes the following covenants and agreements
for the benefit of Beneficiary or any party designated by Beneficiary, including
any prospective purchaser of the Loan Documents or participant in the Loan, and
their respective officers, employees, agents, attorneys, representatives and
contractors (all of which are collectively referred to as "Beneficiary") and
Trustee.
NOW, THEREFORE, IN CONSIDERATION of the Recitals and for other
good and valuable consideration, the receipt and sufficiency of which are
acknowledged, Trustor agrees as follows:
ARTICLE 1
GRANT OF SECURITY
1.1 REAL PROPERTY GRANT. In order to secure the Secured
Indebtedness and the full performance by Trustor of all of the terms, covenants
and obligations set forth in any of the Loan Documents, Trustor irrevocably
sells, transfers, grants, conveys, assigns and warrants to Trustee, its
successors and assigns, in trust, with power of sale and right of entry and
possession, all of Trustor's present and future estate, right, title and
interest in and to the following which are collectively referred to as the "Real
Property":
(a) All of Trustor's right, title and interest in and to
that certain Lease of Phase 1A dated as of August 26, 1983, by and between The
Community Redevelopment Agency of the City of Los Angeles, a public body,
corporate and politic established pursuant to Chapter 2 of the Community
Redevelopment Law of the State of California (the "Agency"), as Lessor, and
Bunker Hill Associates, a California general partnership ("BHA"), as Tenant, and
recorded in the Official Records of Los Angeles County, California (the
"Official Records") on August 26, 1983 as Instrument No. 83-991993, as amended
by that certain First Amendment of Lease of Phase 1A by and between the Agency
and BHA and dated as of September 13, 1985, and recorded in the Official Records
on September 23, 1985 as Instrument No. 00-0000000, that certain Second
3
Amendment of Lease of Phase 1A by and between the Agency and Grand Avenue
Associates, a California general partnership ("GAA") and dated as of December
29, 1989, and recorded in the Official Records on February 13, 1990 as
Instrument No. 90-248146, and as modified by Quitclaim Deed dated July 8, 1986
executed by GAA in favor of the Agency and recorded in the Official Records on
July 9, 1986 as Instrument No. 86-862746, by that certain Quitclaim Deed dated
as of May, 1990, executed by GAA in favor of California Plaza Hotel L.P., a
California limited partnership ("Hotel L.P.") and the Agency, which was recorded
in the Official Records on October 3, 1990 as Instrument No. 00-0000000 and by
that certain Grant Of Easements (1A Fire Exit) dated as of May, 1990 executed by
Hotel L.P. and the Agency in favor of GAA, which was recorded in the Official
Records on October 3, 1990 as Instrument No. 00-0000000 (such Lease of Xxxxx 0X,
as so amended and modified, is hereinafter referred to as the " Ground Lease").
The Ground Lease was assigned to Metropolitan Life Insurance Company, a New York
corporation (in such capacity, "MetLife") pursuant to (i) a certain Grant Deed
of Improvements and Assignment of Leasehold and REA dated June 26, 1991, from
GAA, as grantor, to BHA and Met Life, as grantees, which was recorded in the
Official Records on June 27, 1991 as Instrument No. 91-973735 and (ii) that
certain Grant Deed of Improvements and Assignment of Leasehold and REA dated
June 26, 1991 from BHA, as grantor to Met Life, as grantee which was recorded in
the Official Records on June 27, 1991 as Instrument No. 91 973737. The Ground
Lease was assigned to Trustor pursuant to that certain Grant Deed of
Improvements and Assignment of Leasehold and REA of even date herewith (the
"MetLife Conveyance") from MetLife, as grantor, to Trustor, as grantee, which is
being recorded in the Official Records concurrently herewith. The Ground Lease
covers the land described on Exhibit A attached hereto (the "Land");
(b) All rights, privileges, options, elections and other
benefits of every name and nature (including, without limitation, Trustor's
right to reject the Ground Lease under the Bankruptcy Code (as hereinafter
defined) as more particularly described in Section 2.12 hereof) provided under
the Ground Lease to be enjoyed or exercised by Trustor as tenant thereunder (the
Ground Lease and such rights, privileges, options, elections and other benefits
are collectively referred to as the "Leasehold");
(c) All of the Original Improvements, as defined in the
Ground Lease, together with all other things now or hereafter affixed to or
placed on the Land, including all buildings, structures and improvements, all
fixtures and all machinery, elevators, boilers, building service equipment
(including, without limitation, all equipment for the generation or distribution
of air, water, heat, electricity, light, fuel or for ventilating or air
conditioning purposes or for sanitary or drainage purposes or for the removal of
dust, refuse or garbage), partitions, appliances, furniture, furnishings,
building materials, supplies, computers and software, window coverings and floor
coverings, lobby furnishings, and other property now or in the future attached,
or installed in the improvements and all replacements, repairs, additions, or
substitutions to these items (collectively, the "Improvements");
(d) All of Trustor's right, title and interest in all
easements, privileges and rights appurtenant to the Leasehold and/or the
Improvements and pertaining or held and enjoyed in connection therewith,
including without limitation that certain Construction, Operation and
4
Reciprocal Easement Agreement dated as of August 26, 1983 by and between BHA and
the Agency, which was recorded in the Official Records on August 26, 1983 as
Instrument No. 83-991992, as amended by First Amendment thereto dated as of
December 31, 1992 which was recorded in the Official Records on May 28, 1993 as
Instrument No. 00-0000000 and by Second Amendment thereto dated as of April 30,
1997 which was recorded in the Official Records on June 9, 1997 as Instrument
No. 97-854835 (as so amended, the "REA") and all of Trustor's right, title and
interest in and to any land lying in the bed of any street, alley, road or
avenue to the centerline thereof in front of, or adjoining the Land;
(e) All present and future income, rents, revenue,
profits, proceeds, accounts receivables and other benefits from the Leasehold
and/or the Improvements and all deposits made with respect to the Leasehold
and/or Improvements, including, but not limited to, any security given to
utility companies by Trustor, any advance payment of real estate taxes or
assessments, or insurance premiums made by Trustor and all claims or demands
relating to such deposits and other security, including claims for refunds of
tax payments or assessments, and all insurance proceeds payable to Trustor in
connection with the Leasehold and/or the Improvements whether or not such
insurance coverage is specifically required under the terms of this Deed of
Trust ("Insurance Proceeds") (all of the items set forth in this paragraph are
referred to collectively as "Rents and Profits");
(f) All damages, payments and revenue of every kind that
Trustor may be entitled to receive, from any person owning or acquiring a right
to the oil, gas or mineral rights and reservations of the Land;
(g) All proceeds and claims arising on account of any
damage to, or Condemnation (as hereinafter defined) of any part of the Leasehold
and/or the Improvements, and all causes of action and recoveries for any
diminution in the value of the Leasehold and/or the Improvements;
(h) All licenses, contracts, management agreements,
guaranties, warranties, franchise agreements, permits, or certificates relating
to the ownership, use, operation or maintenance of the Leasehold and/or the
Improvements;
(i) All names by which the Land and/or Improvements may
be operated or known (including without limitation the names "California Xxxxx
Xxxxx 0X" and "One California Plaza," or variations thereof, to the extent
Trustor has any right in such names), and all rights to carry on business under
those names, and all trademarks, trade names, and goodwill relating to the Land
and/or Improvements; and
(j) All other or greater rights of every nature in the
Land or any of the foregoing and in the possession or use thereof and income
therefrom, whether now owned or hereafter acquired by Trustor, including without
limitation any option to purchase, first refusal right or other contract which
Trustor may hereafter acquire to purchase the Land or any portion thereof or any
interest therein.
5
TO HAVE AND TO HOLD the Real Property, unto Trustee, its
successors and assigns, in trust, for the benefit of Beneficiary, its successors
and assigns, forever subject to the terms, covenants and conditions of this Deed
of Trust.
1.2 PERSONAL PROPERTY GRANT. Trustor irrevocably sells, transfers,
grants, conveys, assigns and warrants to Beneficiary, its successors and
assigns, a security interest in Trustor's interest in the following personal
property which is collectively referred to as the "Personal Property":
(a) Any portion of the Real Property which may be
personal property, and all other personal property, whether now existing or
acquired in the future which is attached to, appurtenant to, or used in the
construction or operation of, or in connection with, the Real Property;
(b) All rights to the use of water, including water
rights appurtenant to the Real Property, pumping plants, ditches for irrigation,
all water stock or other evidence of ownership of any part of the Real Property
that is owned by Trustor in common with others and all documents of membership
in any owner's association or similar group;
(c) All plans and specifications prepared for
construction of the Improvements; and all contracts and agreements of Trustor
relating to the plans and specifications or to the construction of the
Improvements;
(d) All equipment, machinery, fixtures, goods, accounts,
general intangibles, promissory notes, letter of credit rights, investment
property, commercial tort claims, deposit accounts, documents, instruments and
chattel paper and all substitutions, replacements of, and additions to, any of
these items;
(e) All sales agreements, deposits, escrow agreements,
other documents and agreements entered into with respect to the sale of any part
of the Real Property, and all proceeds of the sale; and
(f) All proceeds from the voluntary or involuntary
disposition or claim respecting any of the foregoing items (including judgments,
condemnation awards or otherwise).
All of the Real Property and the Personal Property are
collectively referred to as the "Property."
1.3 CONDITIONS TO GRANT. If Trustor shall pay to Beneficiary the
Secured Indebtedness, at the times and in the manner stipulated in the Loan
Documents, and if Trustor shall perform and observe each of the terms, covenants
and agreements set forth in the Loan Documents, then this Deed of Trust and all
the rights granted by this Deed of Trust shall be released by Trustee and/or
Beneficiary in accordance with the laws of the State.
6
ARTICLE 2
TRUSTOR COVENANTS
2.1 DUE AUTHORIZATION, EXECUTION, AND DELIVERY.
(a) Trustor represents and warrants that the execution of
the Loan Documents and the Indemnity Agreement have been duly authorized and
there is no provision in the organizational documents of Trustor requiring
further consent for such action by any other entity or person.
(b) Trustor represents and warrants that it is duly
organized, validly existing and is in good standing under the laws of the state
of its formation and in the State, that its exact legal name, the state of its
formation and the state of its chief executive office (or place of business, if
it has only one place of business) are correctly stated in the Defined Terms,
and that it has all necessary licenses, authorizations, registrations, permits
and/or approvals to own its properties and to carry on its business as presently
conducted.
(c) Trustor represents and warrants that the execution,
delivery and performance of the Loan Documents and the Indemnity Agreement will
not result in Trustor being in default under any provision of its organizational
documents or of any deed of trust, mortgage, lease, credit or other agreement to
which it is a party or which affects it or the Property.
(d) Trustor represents and warrants that the Loan
Documents and the Indemnity Agreement have been duly authorized, executed and
delivered by Trustor and constitute valid and binding obligations of Trustor
which are enforceable in accordance with their terms.
(e) Trustor agrees that it will not change the state
where it or its chief executive office (or place of business, if it has only one
place of business) is located, or change its name, without providing at least
thirty (30) days' prior written notice to Beneficiary.
2.2 PERFORMANCE BY TRUSTOR. Trustor shall pay the Secured
Indebtedness to Beneficiary and shall keep and perform each and every other
obligation, covenant and agreement of the Loan Documents.
2.3 WARRANTY OF TITLE.
(a) Trustor represents and warrants that, to the extent
it received the same pursuant to the MetLife Conveyance, it holds marketable and
indefeasible fee simple absolute title to the Improvements and a valid leasehold
estate under the Ground Lease, and that it has the right and is lawfully
authorized to sell, convey or encumber the Property subject only to those
specific exceptions to title recorded in the real estate records of the County
and contained in Part I of Schedule B of the title insurance policy or policies
which have been approved by Beneficiary (the "Permitted Exceptions"). The
Property is free from all due and unpaid taxes, assessments
7
and mechanics' and materialmen's liens resulting from any actions of Trustor or
any of its agents, employees, or invitees, and to the best knowledge of Trustor,
except as may be otherwise known to Beneficiary, the Property is free from any
other due and unpaid taxes, assessments and mechanics' and materialmen's liens.
(b) Trustor further covenants to warrant and forever
defend Beneficiary and Trustee from and against all persons claiming any
interest in the Property.
2.4 TAXES, LIENS AND OTHER CHARGES.
(a) Unless otherwise paid to Beneficiary as provided in
Section 2.5, Trustor shall pay all real estate and other taxes and assessments
which may be payable, assessed, levied, imposed upon or become a lien on or
against any portion of the Property (all of the foregoing items are collectively
referred to as the "Imposition(s)"). The Impositions shall be paid not later
than ten (10) days before the dates on which the particular Imposition would
become delinquent and Trustor shall produce to Beneficiary receipts of the
imposing authority, or other evidence reasonably satisfactory to Beneficiary,
evidencing the payment of the Imposition in full. If Trustor elects by
appropriate legal action to contest any Imposition, Trustor shall first deposit
cash with Beneficiary as a reserve in an amount which Beneficiary determines is
sufficient to pay the Imposition plus all fines, interest, penalties and costs
which may become due pending the determination of the contest. If Trustor
deposits this sum with Beneficiary, Trustor shall not be required to pay the
Imposition provided that the contest operates to prevent enforcement or
collection of the Imposition, or the sale or forfeiture of, the Property, and is
prosecuted with due diligence and continuity. Upon termination of any proceeding
or contest, Trustor shall pay the amount of the Imposition as finally determined
in the proceeding or contest. Provided that there is not then an Event of
Default (as defined in Section 11.1), the monies which have been deposited with
Beneficiary pursuant to this Section shall be applied toward such payment and
the excess, if any, shall be returned to Trustor.
(b) In the event of the passage, after the Execution
Date, of any law which deducts from the value of the Property, for the purposes
of taxation, any lien or security interest encumbering the Property, or changing
in any way the existing laws regarding the taxation of mortgages, deeds of trust
and/or security agreements or debts secured by these instruments, or changing
the manner for the collection of any such taxes, and the law has the effect of
imposing payment of any Impositions upon Beneficiary, at Beneficiary's option,
the Secured Indebtedness shall immediately become due and payable.
Notwithstanding the preceding sentence, the Beneficiary's election to accelerate
the Loan shall not be effective if (1) Trustor is permitted by law (including,
without limitation, applicable interest rate laws) to, and actually does, pay
the Imposition or the increased portion of the Imposition and (2) Trustor agrees
in writing to pay or reimburse Beneficiary in accordance with Section 11.6 for
the payment of any such Imposition which becomes payable at any time when the
Loan is outstanding.
2.5 ESCROW DEPOSITS. Without limiting the effect of Section 2.4
and Section 3.1, Trustor shall pay to Beneficiary monthly on the same date the
monthly installment is payable under the Note, an amount equal to 1/12th of the
amounts Beneficiary reasonably estimates are necessary to pay, on an annualized
basis, (1) all Impositions and (2) the premiums
8
for the insurance policies required under this Deed of Trust (collectively the
"Premiums") until such time as Trustor has deposited an amount equal to the
annual charges for these items and on demand, from time to time, shall pay to
Beneficiary any additional amounts necessary to pay the Premiums and
Impositions. Trustor will furnish to Beneficiary bills for Impositions and
Premiums thirty (30) days before Impositions become delinquent and such Premiums
become due for payment. No amounts paid as Impositions or Premiums shall be
deemed to be trust funds and these funds may be commingled with the general
funds of Beneficiary. Unless a default has occurred under any of the Loan
Documents or the Guaranty or the Indemnity Agreement, Trustor shall be credited
with interest on account of the funds deposited by Trustor with Beneficiary
pursuant to this Section 2.5, which interest shall be applied as such deposited
funds are applied from time to time at Beneficiary's discretion. Beneficiary
shall have no obligation to compound such interest. Such interest shall be
credited at the rate of interest that Trustor would have received on such funds
if the funds had been deposited in the MetLife State Street Money Market Fund,
any similar fund designated by Beneficiary's loan servicing agent, or other
similar fund as determined by Beneficiary. Beneficiary shall have no obligation
to credit Trustor with any interest on the funds deposited by Trustor pursuant
to this Section 2.5 after a default has occurred under any of the Loan Documents
or the Guaranty or the Indemnity Agreement. In the event that Trustor does not
pay the Premiums or Impositions, then Beneficiary may, but shall not be
obligated to, pay the Premiums and Impositions and any money advanced by
Beneficiary shall be reimbursed to Beneficiary within five (5) days after
Beneficiary notifies Trustor of the amount of the Impositions or Premiums which
Beneficiary paid. If an Event of Default occurs, Beneficiary shall have the
right, at its election, to apply any amounts held under this Section 2.5 in
reduction of the Secured Indebtedness, or in payment of the Premiums or
Impositions for which the amounts were deposited.
2.6 CARE AND USE OF THE PROPERTY.
(a) Trustor represents and warrants to and agrees with
Beneficiary as follows:
(i) To the best knowledge of Trustor, except as
may be otherwise known to Beneficiary, all authorizations, licenses, including
without limitation liquor licenses, if any, and operating permits required to
allow the Improvements to be operated for the Use have been obtained, paid for
and are in full force and effect.
(ii) To the best knowledge of Trustor, except as
may be otherwise known to Beneficiary, the Improvements and their Use comply
with (and no notices of violation have been received in connection with) all
Requirements (as defined in this Section) and Trustor shall at all times comply
with all present or future Requirements affecting or relating to the Property
and/or the Use. Trustor shall furnish Beneficiary, on request, proof of
compliance with the Requirements. Trustor shall not use or permit the use of the
Property, or any part thereof, for any illegal purpose. "Requirements" shall
mean all laws, ordinances, orders, covenants, conditions and restrictions and
other requirements relating to land and building design and construction, use
and maintenance, that may now or hereafter pertain to or affect the Property or
any part of the Property or the Use, including, without limitation, planning,
zoning, subdivision, environmental, air quality, flood hazard, fire safety,
handicapped facilities, building, health, fire,
9
traffic, safety, wetlands, coastal and other governmental or regulatory rules,
laws, ordinances, statutes, codes and requirements applicable to the Property,
including permits, licenses and/or certificates that may be necessary from time
to time to comply with any of the these requirements.
(iii) Trustor will continue to comply with all
requirements of all instruments and agreements affecting the Property, whether
or not of record, including without limitation all covenants and agreements by
and between Trustor and any governmental or regulatory agency pertaining to the
development, use or operation of the Property. Trustor, at its sole cost and
expense, shall keep the Property in good order, condition, and repair, and make
all necessary structural and non-structural, ordinary and extraordinary repairs
to the Property.
(iv) Trustor shall abstain from, and not permit,
the commission of waste to the Property and shall not remove or alter in any
substantial manner, the structure or character of any Improvements without the
prior written consent of Beneficiary.
(v) To the best knowledge of Trustor, except as
may be otherwise known to the Beneficiary, the zoning approval for the Property
is not dependent upon the ownership or use of any property which is not
encumbered by this Deed of Trust.
(vi) To the best knowledge of Trustor, except as
may be otherwise known to Beneficiary, the Property is in good repair and
condition, free of any material damage.
(b) Beneficiary shall have the right, at any time and
from time to time during normal business hours, upon not less than 48 hours'
notice to Trustor (or no notice in the case of emergency), to enter the Property
in order to ascertain the Trustor's compliance with the Loan Documents, to
examine the condition of the Property, to perform an appraisal, to undertake
surveying or engineering work, and to inspect premises occupied by tenants.
Trustor shall cooperate with Beneficiary performing these inspections.
Beneficiary's rights hereunder include its rights under California Civil Code
Section 2929.5, as such Section may be amended from time to time. Trustor shall
pay all costs incurred by Beneficiary in connection with any such inspections,
except as may otherwise be provided in such Section 2929.5, provided that (i) an
Event of Default then exists, or (ii) Beneficiary believes in good faith that a
material adverse condition exists at the Property which may impair the value of
Beneficiary's collateral.
(c) Trustor shall use, or cause to be used, the Property
continuously for the Use. Trustor shall not use, or permit the use of, the
Property for any other use without the prior written consent of Beneficiary.
Without the prior written consent of Beneficiary, Trustor shall not (i) file or
record a declaration of condominium, master deed of trust or mortgage or any
other similar document evidencing the imposition of a so-called "condominium
regime" whether superior or subordinate to this Deed of Trust, (ii) permit any
part of the Property to be converted to, or operated as, a "cooperative" regime
whereby the tenants or occupants participate in the ownership, management or
control of any part of the Property, or (iii) initiate or permit any subdivision
of the Property or change in the legal description thereof.
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(d) Without the prior written consent of Beneficiary,
Trustor shall not (i) initiate or acquiesce in a change in the zoning
classification of and/or restrictive covenants affecting the Property or seek
any variance under existing zoning ordinances, (ii) use or permit the use of the
Property in a manner which may result in the Use becoming a non-conforming use
under applicable zoning ordinances (except to the extent, if any, that the Use
is a legally permitted non-conforming use on the date hereof), or (iii) subject
the Property to restrictive covenants, whether by means of covenants, bylaws, or
similar restrictions.
(e) Trustor will faithfully perform each and every
covenant to be performed by Trustor under any lien or encumbrance affecting the
Property including, without limiting the generality hereof, mortgages, deeds of
trust, leases, easements, declarations or covenants, conditions and/or
restrictions and other agreements which affect the Property, in law or in equity
(including without limitation, the Agency Documents, as hereafter defined).
(f) As used herein, the term "Agency Documents" means and
includes the Ground Lease, the REA, the DDA (as hereafter defined), the
Certificate of Completion of Construction and Development dated as of September
13, 1985 executed by the Agency and recorded in the Official Records on
September 23, 1985 as Instrument No. 00-0000000 and the Agreement Containing
Covenants Affecting Real Property in Connection with Certificate of Completion
dated as of September 20, 1985 between BHA and the Agency and recorded in the
Official Records on September 23, 1985 as Instrument No. 00-0000000, as modified
by the Partial Release of Covenants Affecting Real Property in Connection with
Certificate of Completion dated October 31, 1986 between BHA and the Agency and
recorded in the Official Records on November 10, 1986 as Instrument No.
00-0000000, and as amended by the First Amendment to Agreement Containing
Covenants Affecting Real Property in Connection with Certificate of Completion
dated December 31, 1986 between BHA and the Agency and recorded in the Official
Records on January 7, 1987 as Instrument No. 87-17130. "DDA" means that certain
Disposition and Development Agreement dated as of February 5, 1982 by and
between the Agency and BHA, which Disposition and Development Agreement was
modified by that certain First Amended Disposition and Development Agreement
between the Agency and BHA dated as of May 31, 1983, and by the First, Second,
Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth,
Thirteenth and Fourteenth Implementation Agreements.
2.7 COLLATERAL SECURITY INSTRUMENTS. Trustor covenants and agrees
that if Beneficiary at any time holds additional security for any obligations
secured by this Deed of Trust, it may enforce its rights and remedies with
respect to the security, at its option, either before, concurrently or after a
sale of the Property is made pursuant to the terms of this Deed of Trust.
Beneficiary may apply the proceeds of the additional security to the Secured
Indebtedness without affecting or waiving any right to any other security,
including the security under this Deed of Trust, and without waiving any breach
or default of Trustor under this Deed of Trust or any other Loan Document.
2.8 SUITS AND OTHER ACTS TO PROTECT THE PROPERTY.
(a) Trustor shall immediately notify Beneficiary of the
commencement, or receipt of notice, of any action or proceeding or other
material matter or claim affecting the
11
Property (including without limitation the provisions of the Ground Lease or
which relate to the Leasehold) and/or the interest of Beneficiary under the Loan
Documents (collectively, "Actions"). Trustor shall appear in and defend any
Actions.
(b) Beneficiary shall have the right, at the cost and
expense of Trustor, to institute, maintain and participate in Actions or other
proceedings and take such other action, as it may deem appropriate in the good
faith exercise of its discretion to preserve or protect the Property and/or the
interest of Beneficiary under the Loan Documents. Any money paid by Beneficiary
under this Section shall be reimbursed to Beneficiary in accordance with Section
11.6 hereof.
2.9 LIENS AND ENCUMBRANCES. Without the prior written consent of
Beneficiary, to be exercised in Beneficiary's sole and absolute discretion,
other than the Permitted Exceptions, Trustor shall not create, place or allow to
remain any lien or encumbrance on the Property, including deeds of trust,
mortgages, security interests, conditional sales, mechanic's liens, tax liens or
assessment liens regardless of whether or not they are subordinate to the lien
created by this Deed of Trust (collectively, "Liens and Encumbrances"). If any
Liens and Encumbrances are recorded against the Property or any part of the
Property, Trustor shall obtain a discharge and release of the Liens and
Encumbrances (or provide a surety bond in accordance with statutory bonding
requirements the effect of which is to release such Liens and Encumbrances from
the Property and to limit the lien claimant's rights to a recovery on the bond,
or other security with respect thereto satisfactory to Beneficiary in its
reasonable discretion) within thirty (30) days after receipt of notice of their
existence.
2.10 THE GROUND LEASE.
(a) The provisions contained in this Deed of Trust shall
be deemed to be obligations of Trustor in addition to Trustor's obligations as
tenant with respect to similar matters under which Trustor is obligated under
the Ground Lease and shall not restrict or limit Trustor's duties and
obligations to keep and perform promptly all of its covenants, agreements and
obligations as tenant under the Ground Lease.
(b) Trustor shall at all times fully perform and comply
with all the agreements, covenants, terms and conditions imposed upon the tenant
under the Ground Lease, and if Trustor shall fail so to do, Beneficiary may (but
shall not be obligated to), upon providing prior written notice to Trustor
except in the event of an emergency where prior notice is not practical, take
any action Beneficiary deems necessary or desirable to prevent or cure any
default thereunder including, without limitation, performance of any of the
tenant's covenants or obligations under the Ground Lease. Beneficiary and any
person designated by Beneficiary shall have, and are hereby granted, the right
to enter upon the Property at any time and from time to time for the purpose of
taking any cure action as described herein. Upon Beneficiary's request, Trustor
will submit satisfactory evidence of payment of all of its monetary obligations
under the Ground Lease (including but not limited to rents, taxes, assessments,
insurance premiums and operating expenses).
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Upon receipt by Beneficiary from the Agency or any successor
landlord under the Ground Lease (in either case, the "Landlord") of any written
notice of default by Trustor or any other party as tenant thereunder,
Beneficiary may rely thereon and take such action as aforesaid to cure such
default even though the existence of such default or the nature thereof be
questioned or denied by Trustor or by any party on behalf of Trustor.
Beneficiary may pay and expend such sums of money as Beneficiary in its sole
discretion deems necessary for any such purpose, and Trustor hereby agrees to
pay to Beneficiary, immediately and without demand, all such sums so paid and
expended by Beneficiary, together with interest thereon from the date of each
such payment at the Default Rate (as defined in the Note). All sums so paid and
expended by Beneficiary, and the interest thereon, shall be added to and be
secured by the lien of this Deed of Trust.
(c) Trustor shall give Beneficiary duplicate copies of
all notices, reports, statements and similar items which Trustor is obligated or
elects to give under the Ground Lease or which Trustor receives from Landlord
under the Ground Lease. Whenever in the Ground Lease, Trustor shall have the
right to request any information, statements, documents, canceled receipts or
anything else whatsoever, Beneficiary shall have the right to request the same
from Trustor hereunder, and such information, statements, documents, canceled
receipts and other requested material shall thereafter be given to Beneficiary
as if Beneficiary had requested the same.
(d) Trustor shall not shall not, in each case without the
prior written consent of Beneficiary: (i) alter, amend, change, extend or modify
any provision contained in the Ground Lease; (ii) waive or consent to a waiver
of any of its rights and benefits thereunder; or (iii) cancel, release,
surrender or terminate the same (whether pursuant to any right of election
granted under the Ground Lease or otherwise); nor shall Trustor perform or omit
to perform any act without the prior written consent of Beneficiary if the
performance or omission of such act would constitute a default under the Ground
Lease. Any such termination, cancellation, modification, change, supplement,
alteration or amendment of the Ground Lease without the prior written consent of
Beneficiary shall be void and of no force and effect.
If there shall be filed by or against Trustor a petition under
the Bankruptcy Code, 11 U.S.C. Sections 101 et seq. (the "Bankruptcy Code"),
Trustor, as tenant under the Ground Lease, or any trustee appointed by the
Bankruptcy Court in such proceedings, shall immediately (but in no event more
than twenty (20) days after the filing of such petition) notify Beneficiary in
writing of Trustor's or the trustee's intent, as the case may be, to assume or
reject the Ground Lease pursuant to Section 365(a) of the Bankruptcy Code. If
the intent of Trustor or such trustee is to reject the Ground Lease or to take
no action under such Section 365(a), and Trustor or Trustee has received
notification from Beneficiary that, if such is the case, Beneficiary desires an
assignment of the Ground Lease, then:
(i) Trustor or Trustee shall file, prior to the
expiration of the period provided in Section 365(d)(4) of the Bankruptcy Code, a
motion with the Bankruptcy Court to assume and assign the Ground Lease to
Beneficiary or its designee; and
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(ii) Beneficiary or the proposed designee shall
bear the burden of establishing with the Bankruptcy Court that the proposed
designee can perform as required by Sections 365(b)(1) and (f) of the Bankruptcy
Code.
If Beneficiary serves upon Trustor or Trustee the notice
described in the preceding paragraph, Trustor or Trustee shall not seek to
reject the Ground Lease but shall forthwith (and in all events before the
expiration of all applicable time periods for such assumption and assignment)
obtain consent from the Bankruptcy Court to assume and assign the Ground Lease
for the purposes of this paragraph. Trustor agrees that Beneficiary may at any
time apply to the Bankruptcy Court for an extension of any time period for the
assumption of the Ground Lease by Trustor and that the protection of
Beneficiary's security interest in the Ground Lease shall be deemed sufficient
cause for such extension and Trustor shall not oppose any application by
Beneficiary for such extension. Trustor agrees that, if for any reason the
Ground Lease is rejected pursuant to the provisions of Section 365 of the
Bankruptcy Code, Trustor will not take the position that such rejection is a
termination of the Ground Lease.
(e) No release or forbearance of any of Trustor's
obligations under the Ground Lease, pursuant to the Ground Lease or otherwise,
including without limitation Trustor's obligations with respect to the payment
of rent as provided for in the Ground Lease and the performance of all the
terms, provisions, covenants, conditions and agreements contained in the Ground
Lease to be kept, performed or complied with by tenant therein, shall release
Trustor from any of Trustor's obligations under this Deed of Trust. The lien of
this Deed of Trust attaches to all of Trustor's rights and remedies at any time
arising under or pursuant to Subsection 365(h) of the Bankruptcy Code,
including, without limitation, all of Trustor's rights to remain in possession
of the Property.
(f) If the Landlord rejects the Ground Lease pursuant to
the Bankruptcy Code, Trustor agrees that it will not elect to treat the Ground
Lease as terminated but will elect to remain in possession of the leasehold
interest as provided in Section 365(h)(1) and (2) of the Bankruptcy Code. In
addition to the Leasehold and all other interests specified herein, the lien of
this Deed of Trust specifically attaches to, and shall encumber, Trustor's right
to use and possession of the Land and the Improvements if a
trustee-in-bankruptcy of the Landlord rejects the Ground Lease. To the extent
any such claims may exist, Trustor hereby unconditionally assigns, transfers and
sets over to Beneficiary all of Trustor's claims and rights to the payment of
damages arising from any rejection by Landlord of the Ground Lease under the
Bankruptcy Code to the extent any such claims and rights to payment of damages
may exist. Beneficiary shall have the right to proceed in its own name or in the
name of Trustor with respect to any claim, suit, action or proceeding relating
to the rejection of the Ground Lease, including, without limitation, the right
to file and prosecute, to the exclusion of Trustor, any proofs of claim,
complaints, motions, applications, notices and other documents, in any case in
which Landlord is debtor under the Bankruptcy Code. This assignment constitutes
a present, irrevocable and unconditional assignment of the foregoing claims,
rights and remedies, and shall continue in effect until all of the indebtedness
and obligations secured by this Deed of Trust shall have been satisfied and
discharged in full. Any amounts received by Beneficiary as damages arising out
of the rejection of the Ground Lease as aforesaid shall be applied first to all
costs and expenses of
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Beneficiary (including, without limitation, attorneys' fees) incurred in
connection with the exercise of any of its rights or remedies hereunder and then
to reduce the unpaid indebtedness secured by this Deed of Trust in such order as
Beneficiary may determine. Trustor shall promptly make, execute, acknowledge and
deliver, in form and substance satisfactory to Beneficiary, all such additional
instruments, agreements and other documents, as may at any time hereafter be
required by Beneficiary to effectuate and carry out the assignment made pursuant
to this Section.
(g) Unless Beneficiary shall otherwise expressly consent
in writing, the fee title to the property demised by the Ground Lease and the
leasehold estate therein contained shall not merge but shall always remain
separate and distinct, notwithstanding the union of the fee title and the
leasehold estate by purchase or otherwise, in Landlord or tenant thereunder, or
in any other party. In the event Trustor acquires the fee title or any other
estate, title or interest in the property demised under the Ground Lease or any
part thereof, the lien of this Deed of Trust, without further act, deed,
conveyance or deed of trust on behalf of Trustor shall attach to, cover and be a
lien upon such acquired estate, title or interest and such interest shall
thereupon be and become a part of the security encumbered by this Deed of Trust
with the same force and effect as if specifically encumbered in this Deed of
Trust and in the event thereof, upon request of Beneficiary without cost or
expense to Beneficiary, Trustor will execute, acknowledge and deliver all such
further acts, conveyances, deeds, deeds of trust, and assurances as Beneficiary
shall reasonably require to ratify and confirm Beneficiary's lien on the
acquired estate, title or interest.
(h) Trustor shall advise Beneficiary in writing within
five (5) days after receipt of any notice to Trustor by Landlord of any default
by Trustor as tenant under the Ground Lease in the performance or observance of
any of the terms, conditions and covenants to be performed or observed by the
tenant thereunder and to deliver to Beneficiary a true copy of each such notice.
(i) If the Ground Lease is cancelled or terminated, and
Beneficiary or its nominee shall acquire an interest in any new lease of the
property demised thereby, Trustor shall have no right, title or interest in or
to the new lease or to the leasehold estate created by such new lease.
(j) If any action, proceeding, motion or notice shall be
commenced or filed in respect of Landlord or the leasehold estate under the
Ground Lease in connection with any case (including a case commenced or filed
under the Bankruptcy Code), Beneficiary shall have the option, exercisable upon
notice from Beneficiary to Trustor, to conduct and control any such litigation
with counsel of Beneficiary's choice. Beneficiary may proceed in its own name or
in the name of Trustor in connection with any such litigation, and Trustor
agrees to execute any and all powers, authorizations, consents or other
documents required by Beneficiary in connection therewith. Trustor shall, upon
demand, pay to Beneficiary all costs and expenses (including attorneys' fees)
paid or incurred by Beneficiary in connection with the prosecution or conduct of
any such proceedings. Any such costs or expenses not paid by Trustor as
aforesaid shall be secured by the lien of this Deed of Trust and shall be added
to the principal amount of the
15
indebtedness secured hereby. Trustor shall not commence any action, suit,
proceeding or case, or file any application or make any motion, in respect of
the Ground Lease in any such case without the prior written consent of
Beneficiary.
(k) If Trustor learns that the Landlord intends to offer
for sale in connection with any proceeding under the Bankruptcy Code (whether by
11 U.S.C. Section 363 or otherwise), the fee interest in the Land, free of the
interest of the Ground Lease, then Trustor shall give Beneficiary written notice
thereof within three (3) court days, but in all events not later than five (5)
court days before the deadline for filing an objection to any motion for such
sale.
(l) Trustor will use its commercially reasonable best
efforts to obtain and deliver to Beneficiary within twenty (20) days after
written request by Beneficiary, an estoppel certificate from Landlord setting
forth (i) the name of the tenant under the Ground Lease, (ii) that the Ground
Lease has not been modified or, if it has been modified, the date of each
modification (together with copies of each such modification), (iii) the rent
payable under the Ground Lease, (iv) the date to which all rental charges have
been paid by tenant under the Ground Lease, (v) whether there are any alleged
defaults by tenant under the Ground Lease and, if so, setting forth the nature
thereof in reasonable detail, and (vi) as to such other matters as Beneficiary
may reasonably request, including without limitation such matters as are set
forth in the Consent to Assignment and Estoppel Certificate executed by the
Agency on or about the date hereof in connection with the Loan.
Notwithstanding anything to the contrary contained herein,
this Deed of Trust shall not constitute an assignment of the Ground Lease and
Beneficiary shall have no liability or obligation thereunder by reason of its
acceptance of this Deed of Trust. All references herein to provisions of the
Bankruptcy Code shall be deemed to refer to such provisions as they may be
amended from time to time as well as any successor provisions.
2.11 MAINTENANCE OF CENTRAL PLANT. Trustor shall at all times
maintain and repair and keep the Owner's Central Plant (as hereafter defined)
and all related facilities in the same or better condition as such Plant and
facilities were received from Beneficiary on the date hereof in order to ensure
that the Owner's Central Plant may become fully operable immediately following
any interruption of chilled water service from the Central Plant which is
currently providing such chilled water. As used herein, "Owner's Central Plant"
means the plant located within the Improvements consisting of equipment for
generation of chilled water for space cooling and equipment for generation of
hot water for space heating.
ARTICLE 3
INSURANCE
3.1 REQUIRED INSURANCE AND TERMS OF INSURANCE POLICIES.
(a) During the term of this Deed of Trust, Trustor at its
sole cost and expense must provide insurance policies and certificates of
insurance satisfactory to Beneficiary as to
16
amounts, types of coverage and the companies underwriting these coverages. In no
event shall such policies be terminated or otherwise allowed to lapse. Trustor
shall be responsible for its own deductibles. Trustor shall also pay for any
insurance, or any increase of policy limits, not described in this Deed of Trust
which Trustor requires for its own protection or for compliance with government
statutes. Trustor's insurance shall be primary and without contribution from any
insurance procured by Beneficiary.
Policies of insurance shall be delivered to Beneficiary in
accordance with the following requirements:
(i) All Risk Property insurance on the
Improvements and the Personal Property, including contingent liability from
Operation of Building Laws, Demolition Costs and Increased Cost of Construction
endorsements, in each case (A) in an amount equal to 100% of the "Full
Replacement Cost" of the Improvements and Personal Property, which for purposes
of this Article 3 shall mean actual replacement value (exclusive of costs of
excavations, foundations, underground utilities and footings) with a waiver of
depreciation and with a Replacement Cost Endorsement; (B) containing an agreed
amount endorsement with respect to the Improvements and Personal Property
waiving all co-insurance provisions; (C) providing for no deductible in excess
of $50,000; and (D) containing an "Ordinance or Law Coverage" or "Enforcement"
endorsement if any of the Improvements or the use of the Property shall
constitute non-conforming structures or uses. The Full Replacement Cost shall be
determined from time to time by an appraiser or contractor designated and paid
by Trustor and approved in writing by Beneficiary or by an engineer or appraiser
in the regular employ of the insurer.
(ii) Commercial General Liability insurance
against claims for personal injury, bodily injury, death or property damage
occurring upon, in or about the Property, such insurance (A) to be on the
so-called "occurrence" form with a combined single limit of not less than the
amount set forth in the Defined Terms; (B) to continue at not less than this
limit until required to be changed by Beneficiary in writing by reason of
changed economic conditions making this protection inadequate; and (C) to cover
at least the following hazards: (a) premises and operations; (b) products and
completed operations on an "if any" basis; (c) independent contractors; (d)
blanket contractual liability for all written and oral contracts; and (e)
contractual liability covering the indemnities contained in this Deed of Trust
to the extent available.
(iii) Business Income insurance in an amount
sufficient to prevent Trustor from becoming a co-insurer within the terms of the
applicable policies, and sufficient to recover eighteen (18) months of "Business
Income" (as hereinafter defined). "Business Income" shall mean the sum of (A)
the total anticipated gross income from occupancy of the Property, (B) the
amount of all charges (such as, but not limited to, operating expenses,
insurance premiums and taxes) which are the obligation of tenants or occupants
to Trustor, (C) the fair market rental value of any portion of the Property
which is occupied by Trustor, and (D) any other amounts payable to Trustor or to
any affiliate of Trustor pursuant to Leases.
(iv) If Beneficiary determines at any time that
any part of the Property is located in an area identified on a Flood Hazard
Boundary Map or Flood Insurance Rate Map
17
issued by the Flood Emergency Management Agency as having special flood hazards
and flood insurance has been made available, Trustor will maintain a flood
insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration with a generally acceptable insurance carrier,
in an amount not less than the lesser of (A) the outstanding principal balance
of the Loan or (B) the maximum amount of insurance which is available under the
National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973
or the National Flood Insurance Reform Act of 1994, as amended.
(v) During the period of any construction or
renovation or material alteration of the Improvements, a so-called "Builder's
All Risk" insurance policy in non-reporting form for any Improvements under
construction, renovation or alteration including, without limitation, for
demolition and increased cost of construction or renovation, in an amount
approved in writing by Beneficiary, including an Occupancy endorsement and
Workers' Compensation Insurance covering all persons engaged in the
construction, renovation or alteration in an amount at least equal to the
minimum required by statutory limits of the State.
(vi) Workers' Compensation insurance, subject to
the statutory limits of the State, and employer's liability insurance with a
limit of at least $1,000,000 per accident and per disease per employee, and
$1,000,000 for disease in the aggregate in respect of any work or operations on
or about the Property, or in connection with the Property or its operations (if
applicable).
(vii) Boiler & Machinery insurance covering the
major components of the central heating, air conditioning and ventilating
systems, boilers, other pressure vessels, high pressure piping and machinery,
elevators and escalators, if any, and other similar equipment installed in the
Improvements, in an amount equal to one hundred percent (100%) of the full
replacement cost of all equipment installed at the Improvements. These policies
shall insure against physical damage to and loss of occupancy and use of the
Improvements arising out of a covered accident or breakdown.
(viii) Insurance from all losses, damages, costs,
expenses, claims and liabilities related to or arising from acts of terrorism,
providing no lesser coverage than the types, amounts, deductibles, quality of
companies, and forms of insurance policies as provided to Beneficiary in
connection with the funding of the Loan as of the date hereof.
(ix) Insurance from all losses, damages, costs,
expenses, claims and liabilities related to or arising from earthquake or
earthquakes, of such types, in such amounts, with such deductibles, issued by
such companies, and on such forms of insurance policies as required by
Beneficiary.
(x) Such other insurance as may from time to
time be reasonably required by Beneficiary against other insurable hazards,
including, but not limited to, vandalism, sinkhole and mine subsidence.
(xi) Beneficiary's interest must be clearly
stated by endorsement in the insurance policies described in this Section 3.1 as
follows:
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(A) The policies of insurance
referenced in Subsections (a)(i), (a)(iii), (a)(iv), (a)(v), (a)(vii), (a)(viii)
and (a)(ix) of this Section 3.1 shall identify Beneficiary under the Standard
Mortgagee Clause (non-contributory) endorsement.
(B) The insurance policy referenced in
Section 3.1(a)(ii) shall name Beneficiary as an additional insured.
(C) All of the policies referred to in
Section 3.1 shall provide for at least thirty (30) days' written notice to
Beneficiary in the event of policy cancellation and/or material change.
(b) All the insurance companies must be authorized to do
business in the State of New York and in the State and be approved by
Beneficiary. The insurance companies must have a general policy rating of A- or
better and a financial class of VIII or better by A.M. Best Company, Inc. If
there are any Securities (as defined in Section 12.1(a)) issued with respect to
the Loan which have been assigned a rating by a credit rating agency approved by
Beneficiary (a "Rating Agency"), the insurance company shall have a claims
paying ability rating by such Rating Agency equal to or greater than the rating
of the highest class of the Securities. Trustor shall deliver evidence
satisfactory to Beneficiary of payment of premiums due under the insurance
policies.
(c) Certified copies of the policies, and any
endorsements, shall be made available for inspection by Beneficiary upon
request. If any policy is canceled before the Loan is satisfied, and Trustor
fails to immediately procure replacement insurance, Beneficiary reserves the
right but shall not have the obligation immediately to procure replacement
insurance at Trustor's cost.
(d) Trustor shall be required during the term of the Loan
to continue to provide Beneficiary with original renewal policies or
replacements of the insurance policies referenced in Section 3.1(a). Beneficiary
may accept Certificates of Insurance evidencing insurance policies referenced in
Subsections (a)(ii), (a)(iv), and (a)(v) of this Section 3.1 instead of
requiring the actual policies. Beneficiary shall be provided with renewal
Certificates of Insurance, or Binders, not less than fifteen (15) days prior to
each expiration. The failure of Trustor to maintain the insurance required under
this Article 3 shall not constitute a waiver of Trustor's obligation to fulfill
these requirements.
(e) All binders, policies, endorsements, certificates,
and cancellation notices are to be sent to the Address for Insurance
Notification as set forth in the Defined Terms until changed by notice from
Beneficiary.
3.2 ADJUSTMENT OF CLAIMS. Trustor hereby authorizes and empowers
Beneficiary to settle, adjust or compromise any claims for damage to, or loss or
destruction of, all or a portion of the Property, regardless of whether there
are Insurance Proceeds available or whether any such Insurance Proceeds are
sufficient in amount to fully compensate for such damage, loss or destruction.
Notwithstanding the foregoing, so long as no Event of Default (or any event
which with notice and/or the opportunity to cure would constitute an Event of
Default)
19
has occurred and is continuing, and so long as Beneficiary's security shall not
be impaired, Trustor may settle any such claims involving less than $500,000.00
without the consent of Beneficiary provided that any such settlement may be made
only after fifteen (15) days' notice to Beneficiary and shall be carried out in
a manner consistent with good business practice.
3.3 ASSIGNMENT TO BENEFICIARY. In the event of the foreclosure of
this Deed of Trust or other transfer of the title to the Property in
extinguishment of the Secured Indebtedness, all right, title and interest of
Trustor in and to any insurance policy, or premiums or payments in satisfaction
of claims or any other rights under these insurance policies and any other
insurance policies covering the Property shall pass to the transferee of the
Property.
ARTICLE 4
BOOKS, RECORDS AND ACCOUNTS
4.1 BOOKS AND RECORDS. Trustor shall keep adequate books and
records of account in accordance with generally accepted accounting principles
("GAAP"), or in accordance with other methods acceptable to Beneficiary in its
sole discretion, consistently applied and furnish to Beneficiary:
(a) An annual ARGUS valuation file in electronic form
which includes, without limitation, a then current certified rent roll signed
and dated by Trustor, detailing all income of the Property, the names of all
tenants of the Improvements, the portion of Improvements occupied by each
tenant, the base rent and any other charges payable under each Lease (as defined
in Section 5.2) and the term of each Lease, including the expiration date, and
any other information as is reasonably required by Beneficiary, within
forty-five (45) days after the end of each fiscal year;
(b) A quarterly operating statement of the Property and
year to date operating statements detailing the total revenues received, total
expenses incurred, total cost of all capital improvements, total debt service
and total cash flow, to be prepared and certified by Trustor in the form
required by Beneficiary, and if available, any quarterly operating statement
prepared by an independent certified public accountant, within sixty (60) days
after the close of each fiscal quarter of Trustor;
(c) An annual balance sheet and profit and loss statement
of Trustor in the form required by Beneficiary, prepared and certified by
Trustor, or if required by Beneficiary, audited financial statements for Trustor
and any Liable Parties prepared by an independent certified public accountant
acceptable to Beneficiary within ninety (90) days after the close of each fiscal
year of Trustor and the Liable Parties, as the case may be; and
(d) An annual operating budget presented on a monthly
basis consistent with the annual operating statement described above for the
Property including cash flow projections for the upcoming two- (2-) year period
and all proposed capital replacements and improvements at least fifteen (15)
days prior to the start of each calendar year.
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4.2 PROPERTY REPORTS. Upon request from Beneficiary or its
representatives and designees, Trustor shall furnish in a timely manner to
Beneficiary:
(a) A property management report for the Property,
showing the number of inquiries made and/or rental applications received from
tenants or prospective tenants and deposits received from tenants and any other
information requested by Beneficiary, in reasonable detail and certified by
Trustor (or an officer, general partner, member or principal of Trustor if
Trustor is not an individual) under penalty of perjury to be true and complete,
but no more frequently than quarterly; and
(b) An accounting of all security deposits held in
connection with any Lease of any part of the Property, including the name and
identification number of the accounts in which such security deposits are held,
the name and address of the financial institutions in which such security
deposits are held and the name of the person to contact at such financial
institution, along with any authority or release necessary for Beneficiary to
obtain information regarding such accounts directly from such financial
institutions.
4.3 ADDITIONAL MATTERS.
(a) Trustor shall furnish Beneficiary with such other
additional financial or management information (including State and Federal tax
returns) as may, from time to time, be reasonably required by Beneficiary or the
rating agencies in form and substance satisfactory to Beneficiary or the rating
agencies.
(b) Trustor shall furnish Beneficiary and its agents
convenient facilities for the examination and audit of any such books and
records.
(c) Beneficiary and its representatives shall have the
right upon prior written notice to examine and audit the records, books,
management and other papers of Trustor and its affiliates or of any guarantor or
indemnitor which reflect upon their financial condition and/or the income,
expenses and operations of the Property, at the Property or at any office
regularly maintained by Trustor, its affiliates or any guarantor or indemnitor
where the books and records are located. Beneficiary shall have the right upon
notice to make copies and extracts from the foregoing records and other papers.
ARTICLE 5
LEASES AND OTHER AGREEMENTS AFFECTING THE PROPERTY
5.1 TRUSTOR'S REPRESENTATIONS AND WARRANTIES. Trustor represents
and warrants to Trustee and Beneficiary, to the best knowledge of Trustor,
except as may be otherwise known to Beneficiary, as follows:
21
(a) There are no leases or occupancy agreements affecting
the Property except those leases and amendments listed on Exhibit B to the
Assignment of Leases (collectively, "Existing Leases").
(b) There are no defaults by Trustor under the Existing
Leases or under any guaranties and amendments of guaranties given in connection
with the Existing Leases (collectively, the "Guaranties") and except as may have
been disclosed to Beneficiary in the tenant estoppel certificates delivered to
Beneficiary in connection with the Loan, there are no defaults by any tenants
under the Existing Leases or any guarantors under the Guaranties. The Existing
Leases and the Guaranties are in full force and effect.
(c) None of the tenants now occupying 10% or more of the
Property or having a current lease affecting 10% or more of the Property is the
subject of any bankruptcy, reorganization or insolvency proceeding or any other
debtor-creditor proceeding.
(d) No Existing Leases may be amended, terminated or
canceled unilaterally by a tenant and no tenant may be released from its
obligations, except in the event of (i) material damage to, or destruction of,
the Property or (ii) condemnation.
5.2 ASSIGNMENT OF LEASES. In order to further secure payment of
the Secured Indebtedness and the performance of Trustor's obligations under the
Loan Documents, Trustor absolutely, presently and unconditionally grants,
assigns and transfers to Beneficiary all of Trustor's right, title, interest and
estate in, to and under (i) all of the Existing Leases and Guaranties affecting
the Property and (ii) all of the future leases, lease amendments, guaranties and
amendments of guaranties and (iii) the Rents and Profits. Trustor acknowledges
that it is permitted to collect the Rents and Profits pursuant to a revocable
license unless and until an Event of Default occurs. The Existing Leases and
Guaranties and all future leases, lease amendments, guaranties and amendments of
guaranties are collectively referred to as the "Leases."
5.3 PERFORMANCE OF OBLIGATIONS.
(a) Trustor shall perform all obligations under any and
all Leases. If any of the acts described in this Section are done without the
written consent of Beneficiary, at the option of Beneficiary, they shall be of
no force or effect and shall constitute a default under this Deed of Trust.
(b) Upon request of Beneficiary, Trustor agrees to
furnish Beneficiary executed copies of all future Leases entered into which
affect the Property. Trustor shall not, without the express written consent of
Beneficiary, (i) enter into or extend any Lease unless the Lease complies with
the Leasing Guidelines which are attached to this Deed of Trust as Exhibit B
(provided, however, that the foregoing shall not prohibit Trustor from allowing
the extension of any Leases pursuant to any extension options existing under the
Existing Leases on the date hereof), or (ii) cancel or terminate any Leases
except in the case of a default unless Trustor has entered into new Leases
covering all of the premises of the Leases being terminated or surrendered, or
(iii) modify or amend any Leases in any material way or reduce the rent
22
(unless any such lease following such modification, amendment or reduction shall
remain in compliance with the Loan Documents, including the Leasing Guidelines),
or (iv) unless the tenants remain liable under the Leases, consent to an
assignment of the tenant's interest or to a subletting of the demised premises
under any Lease, or (v) accept payment of advance rents or security deposits in
an amount in excess of one month's rent or (vi) enter into any options to
purchase the Property.
5.4 SUBORDINATE LEASES. Each Lease affecting the Property shall be
absolutely subordinate to the lien of this Deed of Trust and each Lease
affecting the Property that is entered into subsequent to the date hereof shall
also contain a provision, satisfactory to Beneficiary, to the effect that (a)
Beneficiary may elect to make such Lease superior to the lien of this Deed of
Trust and (b) in the event of the judicial or non-judicial foreclosure of the
Property, at the election of the acquiring foreclosure purchaser, the particular
Lease shall not be terminated and the tenant shall attorn to the purchaser
subject to the terms of such Lease. If requested to do so, the tenant shall
agree to enter into a new Lease for the balance of the term upon the same terms
and conditions. If Beneficiary requests, Trustor shall cause a tenant or tenants
to enter into subordination and attornment agreements or nondisturbance
agreement with Beneficiary on forms which have been approved by Beneficiary,
provided, however, that with respect to any Lease entered into after the date
hereof which complies with this Deed of Trust, including the Leasing Guidelines,
Beneficiary agrees to execute Beneficiary's standard form of nondisturbance
agreement, at no cost to Beneficiary.
5.5 LEASING COMMISSIONS. Trustor covenants and agrees that all
contracts and agreements relating to the Property requiring the payment of
leasing commissions, management fees or other similar compensation shall (i)
provide that the obligation will not be enforceable against Beneficiary and (ii)
be subordinate to the lien of this Deed of Trust. Beneficiary will be provided
evidence of Trustor's compliance with this Section upon request.
ARTICLE 6
ENVIRONMENTAL HAZARDS
6.1 REPRESENTATIONS AND WARRANTIES. Trustor hereby represents,
warrants, covenants and agrees to and with Beneficiary that (i) to the best
knowledge of Trustor and except as disclosed in the Environmental Reports (as
defined in the Indemnity Agreement) and except as may otherwise be known to
Beneficiary, neither Trustor nor, to the best of Trustor's knowledge, any
tenant, subtenant or occupant of the Property, has at any time placed, suffered
or permitted the presence of any Hazardous Materials (as defined in Section 6.5)
at, on, under, within or about the Property except as expressly approved by
Beneficiary in writing; (ii) to the best knowledge of Trustor and except as
disclosed in the Environmental Reports and except as may otherwise be known to
Beneficiary, all operations or activities upon the Property, and any use or
occupancy of the Property by Trustor, and any tenant, subtenant or occupant of
the Property are presently and shall in the future be in compliance with all
Requirements of Environmental Laws (as defined in Section 6.6); (iii) Trustor
will use best efforts to assure that any tenant, subtenant or occupant of the
Property shall in the future be in compliance with all
23
Requirements of Environmental Laws; (iv) except as disclosed in the
Environmental Reports, or as may otherwise be known to Beneficiary, Trustor does
not know of, and has not received, any written or oral notice or other
communication from any person or entity (including, without limitation, a
governmental entity), of possible liability of any person or entity pursuant to
any Requirements of Environmental Laws, or any actual administrative or judicial
proceedings in connection with any of the foregoing; (v) Trustor shall not do
and will use its best efforts not to allow any tenant or other user of the
Property to do any act that materially increases the dangers to human health or
the environment, poses an unreasonable risk of harm to any person or entity
(whether on or off the Property), impairs or may impair the value of the
Property, is contrary to any requirement of any insurer, constitutes a public or
private nuisance, constitutes waste, or violates any covenant, condition,
agreement or easement applicable to the Property; and (vi) Trustor has
truthfully and fully provided to Beneficiary, in writing, any and all
information (other than information obtained from Beneficiary in connection with
Trustor's acquisition of the Property from Beneficiary) relating to
environmental conditions in, on, under or from the Property that is known to
Trustor and that is contained in Trustor's files and records, including, without
limitation, any reports relating to Hazardous Materials in, on, under or from
the Property and/or to the environmental condition of the Property. The term
"Trustor's files and records" as used in the preceding clause (vi) shall not be
deemed to include the files and records of any entity affiliated with Trustor
which owns any real property in the vicinity of the Property. The foregoing
representations shall not relate to Ordinary Materials (as defined in the
Indemnity Agreement) provided that any use, disposal, or release is in
compliance with the Requirements of Environmental Law and with respect to any
particular tenant space is reasonably necessary for the operation of the
business of such tenant and provided that such tenant's Lease is an Existing
Lease or is hereafter entered into in compliance with the Loan Documents.
6.2 REMEDIAL WORK. In the event any investigation or monitoring of
site conditions or any clean-up, containment, restoration, removal or other
remedial work (collectively, the "Remedial Work") is required under any
Requirements of Environmental Laws, Trustor shall perform or cause to be
performed the Remedial Work in compliance with the applicable law, regulation,
order or agreement. All Remedial Work shall be performed by one or more
contractors, selected by Trustor and approved in advance in writing by
Beneficiary, and under the supervision of a consulting engineer, selected by
Trustor and approved in advance in writing by Beneficiary. All costs and
expenses of Remedial Work shall be paid by Trustor including, without
limitation, the charges of the contractor(s) and/or the consulting engineer, and
Beneficiary's reasonable attorneys', architects' and/or consultants' fees and
costs incurred in connection with monitoring or review of the Remedial Work. In
the event Trustor shall fail to timely commence, or cause to be commenced, or
fail to diligently prosecute to completion, the Remedial Work, Beneficiary may,
but shall not be required to, cause such Remedial Work to be performed, subject
to the provisions of Sections 11.5 and 11.6. Notwithstanding the foregoing,
Trustor shall not be liable under this Section 6.2 to the extent that any
Remedial Work is required as the result of the introduction and initial release
of a Hazardous Material at the Property during the period in which Beneficiary
owned the Property, except to the extent that any impairment results from an act
or omission of Trustor or its agents, employees or invitees during such period
that Beneficiary owned the Property, or results from the material aggravation of
the Hazardous Material condition after the transfer of the property to Trustor.
24
6.3 ENVIRONMENTAL SITE ASSESSMENT. Beneficiary shall have the
right, at any time and from time to time, to undertake, an environmental site
assessment on the Property, including any testing that Beneficiary may
determine, in its sole discretion, is necessary or desirable to ascertain the
environmental condition of the Property and the compliance of the Property with
Requirements of Environmental Laws. Trustor shall cooperate fully with
Beneficiary and its consultants performing such assessments and tests. Trustor
shall pay all costs incurred by Beneficiary in connection with any such site
assessment and/or testing, except as may otherwise be provided in California
Civil Code Section 2929.5, provided that (i) an Event of Default then exists, or
(ii) Beneficiary believes in good faith that a material adverse condition exists
at the Property which may impair the value of Beneficiary's collateral.
6.4 UNSECURED OBLIGATIONS. No amounts which may become owing by
Trustor to Beneficiary under this Article 6 or under any other provision of this
Deed of Trust as a result of a breach of or violation of this Article 6 shall be
secured by this Deed of Trust. The obligations shall continue in full force and
effect and any breach of this Article 6 shall constitute a default under this
Deed of Trust. The lien of this Deed of Trust shall not secure (i) any
obligations evidenced by or arising under the Indemnity Agreement ("Unsecured
Obligations"), or (ii) any other obligations to the extent that they are the
same or have the same effect as any of the Unsecured Obligations. The Unsecured
Obligations shall continue in full force, and any breach or default of any such
obligations shall constitute a breach or default under this Deed of Trust but
the proceeds of any foreclosure sale shall not be applied against Unsecured
Obligations. Nothing in this Section shall in any way limit or otherwise affect
the right of Beneficiary to obtain a judgment in accordance with applicable law
for any deficiency in recovery of all obligations that are secured by this Deed
of Trust following foreclosure, notwithstanding that the deficiency judgment may
result from diminution in the value of the Property by reason of any event or
occurrence pertaining to Hazardous Materials or any Requirements of
Environmental Laws.
6.5 HAZARDOUS MATERIALS. "Hazardous Materials" shall include
without limitation:
(a) Those substances included within the definitions of
"hazardous substances," "hazardous materials," "toxic substances," or "solid
waste" in the Comprehensive Environmental Response Compensation and Liability
Act of 1980 (as amended), 42 U.S.C. Sections 9601 et seq., the Resource
Conservation and Recovery Act of 1976 (as amended), 42 U.S.C. Sections 6901 et
seq. ("RCRA"), and the Hazardous Materials Transportation Act (as amended), 49
U.S.C. Sections 1501 et seq., and in the regulations promulgated pursuant to
said laws, all as amended;
(b) Those substances listed in the United States
Department of Transportation Hazardous Materials Table (49 CFR 172.101 and
amendments thereto) listed in Table 302.4 - List of Hazardous Substances and
Reportable Quantities (40 CFR Part 302 and amendments thereto) or listed in the
List of Extremely Hazardous Substances and Their Threshold Planning Quantities
(40 CFR Part 355, App. A, and amendments thereto);
25
(c) Any material, waste or substance which is (A)
petroleum, including crude oil or any fraction thereof, natural gas, natural gas
liquids, liquefied natural gas, synthetic gas usable for fuel, or any mixture
thereof, (B) asbestos, (C) polychlorinated biphenyls, (D) designated as a
"hazardous substance" pursuant to Section 311 of the Clean Water Act, 33 U.S.C.
Section 1251 et seq. (33 U.S.C. Section 1321) or listed pursuant to Section 307
of the Clean Water Act (33 U.S.C. Section 1317), (E) a chemical substance or
mixture regulated under the Toxic Substances Control Act of 1976, 15 U.S.C.
Sections 2601 et seq., (F) flammable explosives, (G) radioactive materials, (H)
unexploded ordinance, (I) pesticides, fungicides, insecticides or rodenticides,
or (J) a hazardous air pollutant that is or may be listed under Section 112 of
the Clean Air Act, as amended, 42 U.S.C. Sections 7401 et seq. (42 U.S.C.
Section 7412);
(d) Any material, waste or substance that is included
within any of the following:
(i) any of the definitions of "acutely hazardous
waste," "extremely hazardous waste," "hazardous waste," "retrograde material,"
"volatile organic compound" or "waste" pursuant to Cal. Health & Safety Code
Sections 25110 et seq., any definition of "infectious waste" under Cal. Health &
Safety Code Section 7054.4, or any definition of "medical waste" or
"biohazardous waste" under the California Medical Waste Management Act, Cal.
Health & Safety Code Sections 117600 et seq.;
(ii) any chemical known to the State of
California to cause cancer or reproductive toxicity as published pursuant to the
Safe Drinking Water and Toxic Enforcement Act of 1986, Cal. Health & Safety Code
Sections 25249.5 et seq., and listed in Section 12000 of Title 22 of the
California Code of Regulations, all as amended;
(iii) the definition of "hazardous substance"
pursuant to Cal. Health & Safety Code Section 25281;
(iv) the definition of "hazardous substance" as
used in the Xxxxxxxxx-Xxxxxxx-Xxxxxx Hazardous Substance Account Act, Cal.
Health & Safety Code, Sections 25300 et seq.;
(v) either of the definitions of "hazardous
materials" or "hazardous substances" pursuant to Cal. Health & Safety
Code Section 25501;
(vi) the definition of "hazardous material"
pursuant to Cal. Health & Safety Code Section 25411;
(vii) the definition of "asbestos" pursuant to
Cal. Health & Safety Code Section 25918 or the definition of
"asbestos-containing material" pursuant to Section 1529 of Title 8 of the
California Code of Regulations;
(viii) either of the definitions of "air
contaminant" or "air pollutant" as used in Cal. Health & Safety Code Sections
39000 et seq.; and
26
(ix) "waste" or "hazardous substance" pursuant to
Cal. Water Code Section 13050; and
(e) Such other substances, materials and wastes which are
or become regulated as hazardous or toxic under applicable local, state or
federal law, or the United States government, or which are classified as
hazardous or toxic under federal, state, or local laws or regulations, and any
other chemical, material or substance, exposure to which is prohibited, limited
or regulated by any governmental authority or which may or could pose a hazard
to the environment or human health or safety.
6.6 REQUIREMENTS OF ENVIRONMENTAL LAWS. "Requirements of
Environmental Laws" means all requirements of environmental, ecological, health,
or industrial hygiene laws or regulations or rules of common law related to the
Property, including, without limitation, all requirements imposed by any
environmental permit, law, rule, order, or regulation of any federal, state, or
local executive, legislative, judicial, regulatory, or administrative agency,
which relate to (i) exposure to Hazardous Materials; (ii) pollution or
protection of the air, surface water, ground water, land; (iii) solid, gaseous,
or liquid waste generation, treatment, storage, disposal, or transportation; or
(iv) regulation of the manufacture, processing, distribution and commerce, use,
or storage of Hazardous Materials.
ARTICLE 7
CASUALTY, CONDEMNATION AND RESTORATION
7.1 TRUSTOR'S REPRESENTATIONS. Trustor represents and warrants to
Trustee and Beneficiary, to the best knowledge of Trustor, except as may be
otherwise known to Beneficiary, as follows:
(a) Trustor has not received notice of any proposed
condemnation or other similar proceeding affecting the Property.
(b) There is no pending proceeding for total or partial
condemnation of the Property.
7.2 RESTORATION.
(a) Trustor shall give prompt written notice of any
casualty to the Property to Beneficiary whether or not required to be insured
against. The notice shall describe the nature and cause of the casualty and the
extent of the damage to the Property. Trustor covenants and agrees to commence
and diligently pursue to completion the Restoration.
(b) Trustor assigns to Beneficiary all Insurance Proceeds
which Trustor is entitled to receive in connection with a casualty whether or
not such insurance is required under this Deed of Trust. In the event of any
damage to or destruction of the Property, and provided (1) an Event of Default
does not currently exist, and (2) Beneficiary has determined that (i) there
27
has not been an Impairment of the Security (as defined in Section 7.2(c)), and
(ii) the repair, restoration and rebuilding of any portion of the Property that
has been partially damaged or destroyed (the "Restoration") can be accomplished
in full compliance with all Requirements to the same general condition,
character and general utility as nearly as possible to that existing prior to
the casualty and at least equal in value as that existing prior to the casualty,
then the Net Insurance Proceeds shall be applied to the cost of Restoration in
accordance with the terms of this Article. Beneficiary shall hold and disburse
the Insurance Proceeds less the cost, if any, to Beneficiary of recovering the
Insurance Proceeds including, without limitation, reasonable attorneys' fees and
expenses, and adjusters' fees (the "Net Insurance Proceeds") to the Restoration.
(c) For the purpose of this Article, "Impairment of the
Security" shall mean any or all of the following: (i) any one or more of the
Leases covering in the aggregate more than 75,000 square feet existing
immediately prior to the damage, destruction, condemnation or casualty shall
have been cancelled, or shall contain any exercisable right to cancel as a
result of the damage, destruction or casualty; (ii) the casualty or damage
occurs during the last year of the term of the Loan; or (iii) restoration of the
Property is estimated to require more than one year to complete from the date of
the occurrence.
(d) If the Net Insurance Proceeds are to be used for the
Restoration in accordance with this Article, Trustor shall comply with
Beneficiary's Requirements For Restoration as set forth in Section 7.4 below.
Upon Trustor's satisfaction and completion of the Requirements For Restoration
and upon confirmation that there is no Event of Default then existing,
Beneficiary shall pay any remaining Restoration Funds (as defined in Section 7.4
below) then held by Beneficiary to Trustor.
(e) In the event that the conditions for Restoration set
forth in this Section have not been met, Beneficiary may, at its option, apply
the Net Insurance Proceeds to the reduction of the Secured Indebtedness in such
order as Beneficiary may determine and Beneficiary may declare the entire
Secured Indebtedness immediately due and payable. After payment in full of the
Secured Indebtedness, any remaining Restoration Funds shall be paid to Trustor.
7.3 CONDEMNATION.
(a) If the Property or any part of the Property is taken
by reason of any condemnation or similar eminent domain proceeding, or by a
grant or conveyance in lieu of condemnation or eminent domain ("Condemnation"),
Beneficiary shall be entitled to all compensation, awards, damages, proceeds and
payments or relief for the Condemnation ("Condemnation Proceeds"). At its
option, Beneficiary shall be entitled to commence, appear in and prosecute in
its own name any action or proceeding or to make any compromise or settlement in
connection with such Condemnation. Trustor hereby irrevocably constitutes and
appoints Beneficiary as its attorney-in-fact, which appointment is coupled with
an interest, to commence, appear in and prosecute any action or proceeding or to
make any compromise or settlement in connection with any such Condemnation.
Notwithstanding the foregoing, so long as (i) no Event of Default has occurred
and is continuing, (ii) such Condemnation will not
28
adversely affect the operation of the Property in the same manner as prior to
the Condemnation, and (iii) Beneficiary's security shall not otherwise be
impaired, Trustor may settle any such Condemnation involving less than
$250,000.00 without the consent of Beneficiary provided that any such settlement
may be made only after fifteen (15) days' notice to Beneficiary and shall be
carried out in a manner consistent with good business practice.
(b) Trustor assigns to Beneficiary all Condemnation
Proceeds which Trustor is entitled to receive. In the event of any Condemnation,
and provided (1) an Event of Default does not currently exist, and (2)
Beneficiary has determined that (i) there has not been an Impairment of the
Security, and (ii) the Restoration of any portion of the Property that has not
been taken can be accomplished in full compliance with all Requirements to the
same condition, character and general utility as nearly as possible to that
existing prior to the taking and at least equal in value as that existing prior
to the taking, then Trustor shall commence and diligently pursue to completion
the Restoration. Beneficiary shall hold and disburse the Condemnation Proceeds
less the cost, if any, to Beneficiary of recovering the Condemnation Proceeds
including, without limitation, reasonable attorneys' fees and expenses, and
adjusters' fees (the "Net Condemnation Proceeds") to the Restoration.
(c) In the event the Net Condemnation Proceeds are to be
used for the Restoration, Trustor shall comply with Beneficiary's Requirements
For Restoration as set forth in Section 7.4 below. Upon Trustor's satisfaction
and completion of the Requirements For Restoration and upon confirmation that
there is no Event of Default then existing, Beneficiary shall pay any remaining
Restoration Funds (as defined in Section 7.4 below) then held by Beneficiary to
Trustor.
(d) In the event that the conditions for Restoration set
forth in this Section have not been met, Beneficiary may, at its option, apply
the Net Condemnation Proceeds to the reduction of the Secured Indebtedness in
such order as Beneficiary may determine and Beneficiary may declare the entire
Secured Indebtedness immediately due and payable. After payment in full of the
Secured Indebtedness, any remaining Restoration Funds shall be paid to Trustor.
7.4 REQUIREMENTS FOR RESTORATION. Unless otherwise expressly
agreed in a writing signed by Beneficiary, the following are the Requirements
For Restoration:
(a) If the Net Insurance Proceeds or Net Condemnation
Proceeds are to be used for the Restoration, prior to the commencement of any
Restoration work (the "Work"), Trustor shall provide Beneficiary (i) for its
reasonable review and written approval complete plans and specifications for the
Work which (A) have been approved by all required governmental authorities, (B)
have been approved by an architect reasonably satisfactory to Beneficiary (the
"Architect") and (C) are accompanied by Architect's signed statement of the
total estimated cost of the Work (the "Approved Plans and Specifications"); (ii)
the amount of money which Beneficiary reasonably determines will be sufficient
when added to the Net Insurance Proceeds or Condemnation Proceeds to pay the
entire cost of the Restoration (collectively referred to as the "Restoration
Funds"); (iii) evidence that the Approved Plans and Specifications and the Work
are in compliance with all Requirements; (iv) an executed contract
29
for construction with a contractor satisfactory to Beneficiary (the
"Contractor") in a form approved by Beneficiary in writing; and (v) if
reasonably requested by Beneficiary, a surety bond and/or guarantee of payment
with respect to the completion of the Work. The bond or guarantee shall be
satisfactory to Beneficiary in form and amount and shall be signed by a surety
or other entities who are acceptable to Beneficiary.
(b) Trustor shall not commence the Work, other than
temporary work to protect the Property or prevent interference with business,
until Trustor shall have complied with the requirements of subsection (a) of
this Section 7.4. So long as there does not currently exist an Event of Default
and the following conditions have been complied with or, in Beneficiary's
discretion, waived, Beneficiary shall disburse the Restoration Funds in
increments to Trustor, from time to time as the Work progresses:
(i) Architect shall be in charge of the Work;
(ii) Beneficiary shall disburse the Restoration
Funds directly or through escrow with a title company selected by Trustor and
approved by Beneficiary, upon not less than ten (10) days' prior written notice
from Trustor to Beneficiary and Trustor's delivery to Beneficiary of (A)
Trustor's written request for payment (a "Request for Payment") accompanied by a
certificate by Architect in a form satisfactory to Beneficiary which states that
(a) all of the Work completed to that date has been completed in compliance with
the Approved Plans and Specifications and in accordance with all Requirements,
(b) the amount requested has been paid or is then due and payable and is
properly a part of the cost of the Work and (c) when added to all sums
previously paid by Beneficiary, the requested amount does not exceed the value
of the Work completed to the date of such certificate; and (B) evidence
satisfactory to Beneficiary that the balance of the Restoration Funds remaining
after making the payments shall be sufficient to pay the balance of the cost of
the Work. Each Request for Payment shall be accompanied by (x) waivers of liens
covering that part of the Work previously paid for, if any (y) a title search or
by other evidence reasonably demonstrating to Beneficiary that no mechanic's or
materialmen's liens or other similar liens for labor or materials supplied in
connection with the Work have been filed against the Property and not discharged
of record, and (z) an endorsement to Beneficiary's title policy insuring that no
encumbrance exists on or affects the Property other than the Permitted
Exceptions; and
(iii) The final Request for Payment shall be
accompanied by (A) a final certificate of occupancy or other evidence of
approval of appropriate governmental authorities for the use and occupancy of
the Improvements, (B) evidence that the Restoration has been completed in
accordance with the Approved Plans and Specifications and all Requirements, (C)
evidence that the costs of the Restoration have been paid in full, and (D)
evidence that no mechanic's or similar liens for labor or material supplied in
connection with the Restoration are outstanding against the Property, including
final waivers of liens covering all of the Work and an endorsement to
Beneficiary's title policy insuring that no encumbrance exists on or affects the
Property other than the Permitted Exceptions.
(iv) If (A) within sixty (60) days after the
occurrence of any damage, destruction or condemnation requiring Restoration,
Trustor fails to submit to Beneficiary and
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receive Beneficiary's approval of plans and specifications or fails to deposit
with Beneficiary the additional amount necessary to accomplish the Restoration
as provided in subparagraph (a) above, or (B) after such plans and
specifications are approved by all such governmental authorities and
Beneficiary, Trustor fails to commence promptly or diligently continue to
completion the Restoration, or (C) Trustor becomes delinquent in payment to
mechanics, materialmen or others for the costs incurred in connection with the
Restoration, or (D) there exists an Event of Default, then, in addition to all
of the rights herein set forth and after ten (10) days' written notice of the
non-fulfillment of one or more of these conditions, Beneficiary may apply the
Restoration Funds to reduce the Secured Indebtedness in such order as
Beneficiary may determine, and at Beneficiary's option and in its sole
discretion, Beneficiary may declare the Secured Indebtedness immediately due and
payable together with the Prepayment Fee.
ARTICLE 8
REPRESENTATIONS OF TRUSTOR
8.1 ERISA. Trustor hereby represents, warrants and agrees that:
(i) it is acting on its own behalf and that it is not an employee benefit plan
as defined in Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), which is subject to Title 1 of ERISA, nor a plan as
defined in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended
(each of the foregoing hereinafter referred to collectively as a "Plan"); (ii)
Trustor's assets do not constitute "plan assets" of one or more such Plans
within the meaning of Department of Labor Regulation Section 2510.3-101; and
(iii) it will not be reconstituted as a Plan or as an entity whose assets
constitute "plan assets."
8.2 NON-RELATIONSHIP. Neither Trustor nor any general partner,
director, principal, member or officer of Trustor nor, to Trustor's knowledge,
any person who is a Trustor's Constituent (as defined in Section 8.3) is (i) a
director or officer of MetLife, (ii) a parent, son or daughter of a director or
officer of MetLife, or a descendent of any of them, (iii) a stepparent, adopted
child, stepson or stepdaughter of a director or officer of MetLife, or (iv) a
spouse of a director or officer of MetLife.
8.3 NO ADVERSE CHANGE. Trustor represents and warrants that:
(a) There has been no material adverse change in the
credit rating or financial condition of Trustor, the general partners,
directors, principals, shareholders or members of Trustor or any entity which is
a general partner, shareholder or member of Trustor, respectively as the case
may be (collectively, "Trustor's Constituents") between the date of the filing
with the Securities and Exchange Commission of the 10-Q Quarterly Report of
Xxxxxxx Properties, Inc. for the quarter ending June 30, 2003 and the date
hereof.
(b) Trustor has delivered to Beneficiary true and correct
copies of all Trustor's organizational documents.
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(c) Neither Trustor, nor any of the Trustor's
Constituents, is involved in any bankruptcy, reorganization, insolvency,
dissolution or liquidation proceeding, and to the best knowledge of Trustor, no
such proceeding is contemplated or threatened.
(d) Trustor has received reasonably equivalent value for
the granting of this Deed of Trust.
8.4 FOREIGN INVESTOR. Neither Trustor nor any partner, member or
stockholder of Trustor is, and no legal or beneficial interest in a partner,
member or stockholder of Trustor is or will be held, directly or indirectly by,
a "foreign person" within the meaning of Sections 1445 and 7701 of the Internal
Revenue Code of 1986, as amended.
ARTICLE 9
EXCULPATION AND LIABILITY
9.1 LIABILITY OF TRUSTOR.
(a) Upon the occurrence of an Event of Default, except as
provided in this Section 9.1, Beneficiary will look solely to the Property and
the security under the Loan Documents for the repayment of the Loan and will not
enforce a deficiency judgment against Trustor. However, nothing contained in
this section shall limit the rights of Beneficiary to enforce any policies of
insurance or to proceed against Trustor and the general partners of Trustor
and/or the Liable Parties, if any, (i) to enforce any Leases entered into by
Trustor or its affiliates as tenant, guarantees, or other agreements entered
into by Trustor in a capacity other than as borrower; (ii) to recover damages
for fraud, material misrepresentation, material breach of warranty or physical
waste; (iii) to recover any Condemnation Proceeds or Insurance Proceeds or other
similar funds which have been misapplied by Trustor or which, under the terms of
the Loan Documents, should have been paid to Beneficiary; (iv) to recover any
tenant security deposits, tenant letters of credit or other deposits or fees
paid to Trustor that are part of the collateral for the Loan or prepaid rents
for a period of more than 30 days which have not been delivered to Beneficiary;
(v) to recover Rents and Profits received by Trustor after the first day of the
month in which an Event of Default occurs and prior to the date Beneficiary
acquires title to the Property which have not been applied to the Loan or in
accordance with the Loan Documents to operating and maintenance expenses of the
Property; (vi) to recover damages, costs and expenses arising from, or in
connection with any breach of a covenant contained in Article 6 hereof or the
Indemnity Agreement; (vii) to recover all amounts due and payable pursuant to
Sections 11.6 and 11.7 of this Deed of Trust and any amount expended by
Beneficiary in connection with a foreclosure or trustee's sale hereunder; (viii)
to recover damages arising from Trustor's failure to comply with Section 8.1 of
this Deed of Trust pertaining to ERISA; (ix) to recover any damages, costs,
expenses or liabilities, including attorneys' fees, incurred by Beneficiary and
arising from any breach of any order, consent decree or settlement relating to
the cleanup of Hazardous Materials, or any other "environmental provision" (as
defined in California Code of Civil Procedure Section 736, as such Section may
be amended from time to time) relating to the Property or any portion thereof;
and/or (x) in
32
accordance with California Code of Civil Procedure Section 726.5, as such
Section may be amended from time to time, to limit the right of Beneficiary to
waive the security of this Deed of Trust as to any parcel of Real Property that
is "environmentally impaired" or is an "affected parcel" (as such terms are
defined in such Section), and as to any Personal Property attached to such
parcel, and thereafter to exercise against Trustor, to the extent permitted by
such Section 726.5, the rights and remedies of an unsecured creditor, including
reduction of Beneficiary's claim against Trustor to judgment, and any other
rights and remedies permitted by law (provided, however, that this clause (x)
shall not be applicable if such impairment occurred during the period of time
that Beneficiary owned the Property, unless and to the extent that any
impairment results from any act or omission of Trustor or its agents, employees
or invitees during such period that Beneficiary owned the Property, or results
from the material aggravation of the Hazardous Material condition after the
transfer of the Property to Trustor). If Beneficiary exercises the rights and
remedies of an unsecured creditor in accordance with the preceding clause (x),
Trustor promises to pay to Beneficiary, on demand by Beneficiary following such
exercise, all amounts owed to Beneficiary under any Loan Document, and Trustor
agrees that it and its general partners, if any, will be personally liable for
the payment of all such sums.
(b) The limitation of liability set forth in this Section
9.1 shall not apply and the Loan shall be fully recourse in the event that prior
to the indefeasible repayment in full of the Secured Indebtedness, Trustor
commences a voluntary bankruptcy or insolvency proceeding or an involuntary
bankruptcy or insolvency proceeding is commenced against Trustor and is not
dismissed within ninety (90) days of filing. In addition, this agreement shall
not waive any rights which Beneficiary would have under any provisions of the
U.S. Bankruptcy Code to file a claim for the full amount of the Secured
Indebtedness or to require that the Property shall continue to secure all of the
Secured Indebtedness.
ARTICLE 10
CHANGE IN OWNERSHIP, CONVEYANCE OF PROPERTY
10.1 CONVEYANCE OF PROPERTY, CHANGE IN OWNERSHIP AND COMPOSITION.
(a) Trustor shall not cause or permit: (i) the Property
or any interest in the Property, to be conveyed, transferred, assigned,
encumbered, sold or otherwise disposed of; or (ii) any transfer, assignment or
conveyance of any interest in Trustor or in the partners, or stockholders, or
members or beneficiaries of, Trustor or of any of Trustor's Constituents or
(iii) any merger, reorganization, dissolution or other change in the ownership
structure of Trustor or any of the general partners of Trustor, including,
without limitation, any conversion of Trustor or any general partner of Trustor
from a general partnership to a limited partnership, a limited liability
partnership or a limited liability company (collectively, "Transfers").
(b) The prohibitions on transfer shall not be applicable
to (i) Transfers as a result of the death of a natural person who is Trustor; or
(ii) Transfers in connection with estate planning between or among a revocable
trust or a natural person to a spouse, son or daughter or
33
descendant of either, a stepson or stepdaughter or descendant of either; or
(iii) Transfers to or from a spouse in connection with the dissolution of a
marriage, so long as Trustor pays to Beneficiary all costs and expenses incurred
by Beneficiary in connection with any proposed Transfer pursuant to the
preceding clauses (i), (ii), or (iii), if any, including without limitation
title insurance premiums, documentation and recording costs, and reasonable
attorneys' costs and fees. The prohibitions on transfer also shall not be
applicable to day-to-day transfers of shares in the original Trustor (so long as
it is a publicly held entity) that does not, individually or in the aggregate,
cause a change in management or control of such entity.
(c) Notwithstanding the foregoing, so long as no transfer
pursuant to Section 10.1(d) or (e) below has occurred, Trustor shall have the
right, not more than three (3) times during the term of the Loan, to transfer
the Property to an entity directly or indirectly wholly-owned and controlled by
Xxxxxxx Properties, L.P., a Maryland limited partnership ("Trustor Affiliate"),
provided that (i) there shall not then be a default hereunder or under any of
the other Loan Documents, or the Guaranty or the Indemnity Agreement or any
event which would, after the passage of time or the giving of notice, or both,
constitute such a default; (ii) Xxxxxxx Properties, Inc., a Maryland
corporation, remains the general partner of Trustor Affiliate; (iii) the
transferee shall expressly assume all obligations of Trustor under the Loan
Documents and the Indemnity Agreement in a manner satisfactory to Beneficiary,
in its sole and absolute discretion; (iv) if the Loan has been securitized,
Beneficiary shall have received confirmation that the assumption of the Loan by
the transferee will not result in an adverse change in the rating of the
Securities by the Rating Agency (as such terms are defined in Section 3.1(b));
and (v) Trustor or such transferee shall pay all costs and expenses incurred by
Beneficiary in connection with the transfer, including title insurance premiums,
documentation costs and reasonable attorneys' fees. Any such transfer will not
relieve Trustor of its obligations under the Note, any of the Loan Documents or
the Indemnity Agreement or the obligations of the Liable Parties under the
Guaranty or the Indemnity.
(d) In addition, the original named Trustor shall have a
one-time right to transfer the Property to a third party provided that (i) there
shall not then be an Event of Default; (ii) the third party transferee shall be
experienced in the ownership, management and leasing of properties similar to
the Property and shall have a net worth (determined in accordance with generally
accepted accounting principles) of not less than $250,000,000.00, determined in
accordance with generally accepted accounting principles, consistently applied;
(iii) the third party transferee shall be able to and shall make the warranties
set forth in Sections 8.1, 8.2 and 8.4 hereof; (iv) the unpaid principal balance
of the Loan shall not exceed sixty percent (60%) of the value of the Property;
(v) the annual net operating income projected to be derived from the Property at
the time of the transfer in the opinion of Beneficiary shall be at least two
hundred percent (200%) of the aggregate annual projected amount of monthly
installments due under the Note and any subordinate financing (with all accrued
obligations thereunder being treated as currently due); (vi) Trustor shall pay
to Beneficiary a fee equal to one percent (1%) of the outstanding principal
balance of the Note at the time of the transfer, together with a processing fee
in the amount of $50,000.00; (vii) the third party transferee and additional
Liable Parties as required by Beneficiary shall execute agreements similar to
the Indemnity Agreement and the Guaranty in a form and manner satisfactory to
Beneficiary in its sole and absolute discretion;
34
such additional Liable Parties must have (in the aggregate if more than one) a
net worth of not less than $250,000,000.00, determined in accordance with
generally accepted accounting principles, consistently applied; (viii) the third
party transferee shall expressly assume all obligations of Trustor under the
Loan Documents and the Indemnity Agreement in a manner satisfactory to
Beneficiary, in its sole and absolute discretion; (ix) if the Loan has been
securitized, Beneficiary shall have received confirmation that the assumption of
the Loan by the transferee will not result in an adverse change in the rating of
the Securities by the Rating Agency; and (x) Trustor or such transferee shall
pay all costs and expenses incurred by Beneficiary in connection with the
transfer, including title insurance premiums, documentation costs and reasonable
attorneys' fees. Any such transfer will not relieve Trustor of its obligations
under the Note, any of the Loan Documents or the Indemnity Agreement or the
obligations of the Liable Parties under the Guaranty or the Indemnity Agreement
with respect to events arising or occurring prior to the date of the transfer.
The inclusion of a reference to subordinate financing in clause (v) above shall
not be construed as a consent by Beneficiary to any such subordinate financing;
any such consent may be granted or withheld in Beneficiary's sole and absolute
discretion.
(e) In addition, Trustor or the Trustor Affiliate shall
also have a one-time right to transfer interests in the Property or interests in
Trustor or the Trustor Affiliate to an Institutional Investor, as defined below,
so long as (i) there shall not then be an Event of Default; (ii) the transferee
shall be able to and shall make the warranties set forth in Sections 8.1, 8.2
and 8.4 hereof together with such other warranties as Beneficiary may determine
in its sole discretion; (iii) the transferee of a direct interest in the
Property shall expressly assume the Loan Documents and the Indemnity Agreement
in a manner satisfactory to Beneficiary in its sole and absolute discretion and
the Liable Parties shall consent thereto in form acceptable to Beneficiary in
its sole and absolute discretion; (iv) at all times Xxxxxxx Properties, Inc.
shall maintain not less than a 25% direct or indirect ownership interest in the
Property as well as the right and power to direct or cause the direction of the
management and policies of the entity that owns the Property; (v) Trustor shall
pay to Beneficiary a fee equal to the product obtained by multiplying one
percent (1%) times the percentage of interest in the Property being transferred
(directly or indirectly), with the product thus obtained further multiplied by
the outstanding principal balance of the Note at the time of the transfer,
together with a processing fee in the amount of $50,000.00; (vi) if the Loan has
been securitized, Beneficiary shall have received confirmation that the
assumption of the Loan by the transferee will not result in an adverse change in
the rating of the Securities by the Rating Agency; and (vii) Trustor, the
Trustor Affiliate or the transferee shall pay all costs and expenses incurred by
Beneficiary in connection with the transfer, including title insurance premiums,
documentation costs and reasonable attorneys' fees. No such transfer shall
release Trustor or Liable Parties from their obligations under the Loan
Documents, the Indemnity Agreement or the Guaranty.
(f) The term "Institutional Investor" shall mean one or
more of the following: (i) a real estate investment trust, bank, saving and loan
association, investment bank, insurance company, trust company, commercial
credit corporation, pension plan, pension fund or pension advisory firm, mutual
fund, government entity or plan, (ii) investment company, money management firm
or "qualified institutional buyer" within the meaning of Rule 144A under the
35
Securities Act of 1933, as amended, or an institutional "accredited investor"
within the meaning of Regulation D under the Securities Act of 1933, as amended,
provided that in all cases such entity (A) has total assets (in name or under
management) in excess of $500,000,000.00 and net worth or capital/statutory
surplus or shareholder's equity, as Beneficiary shall reasonably determine, of
not less than $250,000,000.00; and (B) has a total debt to total net
worth/capital/statutory surplus or shareholder's equity (as Beneficiary shall
determine in its reasonable discretion) ratio not to exceed fifty percent (50%).
(g) For purposes of this Section 10.1 only, "control"
means the ownership, directly or indirectly, in the aggregate of more than fifty
percent (50%) of the beneficial ownership interests of an entity and the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of an entity, whether through the
ability to exercise voting power, by contract or otherwise.
10.2 PROHIBITION ON SUBORDINATE FINANCING. Trustor shall not incur
or permit the incurring of (i) any financing in addition to the Loan that is
secured by a lien, security interest or other encumbrance of any part of the
Property or (ii) any mezzanine financing, including without limitation any
pledge or encumbrance of a partnership, member or shareholder or beneficial
interest in Trustor.
10.3 RESTRICTIONS ON ADDITIONAL OBLIGATIONS. During the term of the
Loan, Trustor shall not, without the prior written consent of Beneficiary,
become liable with respect to any indebtedness or other obligation except for
(i) the Loan, (ii) Leases entered into in the ordinary course of owning and
operating the Property for the Use, (iii) other liabilities incurred in the
ordinary course of owning and operating the Property for the Use but excluding
any loans or borrowings, (iv) liabilities or indebtedness disclosed in writing
to and approved by Beneficiary on or before the Execution Date, and (v) any
other indebtedness or liabilities which do not exceed $750,000.00 in the
aggregate.
10.4 STATEMENTS REGARDING OWNERSHIP. Trustor agrees to submit or
cause to be submitted to Beneficiary within thirty (30) days after December 31st
of each calendar year during the term of this Deed of Trust and ten (10) days
after any written request by Beneficiary, a sworn, notarized certificate, signed
by an authorized (i) individual who is Trustor or one of the individuals
comprising Trustor, (ii) member of Trustor, (iii) partner of Trustor or (iv)
officer of Trustor, as the case may be, stating whether (x) any part of the
Property, or any interest in the Property, has been conveyed, transferred,
assigned, encumbered, or sold, and if so, to whom; (y) any conveyance, transfer,
pledge or encumbrance of any interest in Trustor has been made by Trustor and if
so, to whom; or (z) there has been any change in the individual(s) comprising
Trustor or in the partners, members stockholders or beneficiaries of Trustor
from those on the Execution Date, and if so, a description of such change or
changes.
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ARTICLE 11
DEFAULTS AND REMEDIES
11.1 EVENTS OF DEFAULT. Any of the following shall be deemed to be
a material breach of Trustor's covenants in this Deed of Trust and shall
constitute a default ("Event of Default"):
(a) The failure of Trustor to pay any installment of
principal, interest or principal and interest, any required escrow deposit or
any other sum required to be paid under any Loan Document, whether to
Beneficiary or otherwise, within seven (7) days of the due date of such payment;
(b) The failure of Trustor to perform or observe any
other term, provision, covenant, condition or agreement under any Loan Document
for a period of more than thirty (30) days after receipt of notice of such
failure or such longer period as is necessary to cure such failure in the
exercise of due diligence, but in no event longer than ninety (90) days from the
receipt of notice of such failure, provided Trustor commences the cure within
the initial thirty (30) day period and continuously pursues such cure to
completion;
(c) The filing by Trustor or one of the Liable Parties
(an "Insolvent Entity") of a voluntary petition or application for relief in
bankruptcy, the filing against an Insolvent Entity of an involuntary petition or
application for relief in bankruptcy which is not dismissed within ninety (90)
days, or an Insolvent Entity's adjudication as a bankrupt or insolvent, or the
filing by an Insolvent Entity of any petition, application for relief or answer
seeking or acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief for itself under any
present or future federal, state or other statute, law, code or regulation
relating to bankruptcy, insolvency or other relief for debtors, or an Insolvent
Entity's seeking or consenting to or acquiescing in the appointment of any
trustee, custodian, conservator, receiver or liquidator of an Insolvent Entity
or of all or any substantial part of the Property or of any or all of the Rents
and Profits, or the making by an Insolvent Entity of any general assignment for
the benefit of creditors, or the admission in writing by an Insolvent Entity of
its inability to pay its debts generally as they become due;
(d) If any warranty, representation, certification,
financial statement or other information made or furnished at any time pursuant
to the terms of the Loan Documents by Trustor, or by any person or entity
otherwise liable under any Loan Document shall be materially false or
misleading, and the failure of Trustor to cure such breach within thirty (30)
days after receipt of notice of such breach or such longer period as is
necessary to cure such breach in the exercise of due diligence, but in no event
longer than ninety (90) days from the receipt of notice of such breach, provided
Trustor commences the cure within the initial thirty (30) day period and
continuously pursues such cure to completion;
(e) If Trustor shall suffer or permit the Property, or
any part of the Property, to be used in a manner that might (1) impair Trustor's
title to the Property, (2) create rights of adverse use or possession, or (3)
constitute an implied dedication of any part of the Property;
(f) If Liable Parties shall default under the Guaranty;
37
(g) If Trustor or Liable Parties shall default under the
Indemnity Agreement beyond any applicable periods of notice and/or grace period
set forth therein; or
(h) If an Event of Default (as defined in Article 24
thereof) shall occur under the Ground Lease.
11.2 REMEDIES UPON DEFAULT. Upon the happening of an Event of
Default the Secured Indebtedness shall, at the option of Beneficiary, become
immediately due and payable, without further notice or demand, and Beneficiary
may, to the fullest extent permitted by applicable law, undertake any one or
more of the following remedies:
(a) Foreclosure. Institute a foreclosure action in
accordance with the law of the State, or take any other action as may be
allowed, at law or in equity, for the enforcement of the Loan Documents and
realization on the Property or any other security afforded by the Loan
Documents. In the case of a judicial proceeding, Beneficiary may proceed to
final judgment and execution for the amount of the Secured Indebtedness owed as
of the date of the judgment, together with all costs of suit, reasonable
attorneys' fees and interest on the judgment at the maximum rate permitted by
law from the date of the judgment until paid. If Beneficiary is the purchaser at
the foreclosure sale of the Property, the foreclosure sale price shall be
applied against the total amount due Beneficiary; and/or
(b) Power of Sale. Institute a non-judicial foreclosure
proceeding in compliance with applicable law in effect on the date foreclosure
is commenced for the Trustee to sell the Property either as a whole or in
separate parcels as Beneficiary may determine at public sale or sales to the
highest bidder for cash, in order to pay the Secured Indebtedness. If the
Property is sold as separate parcels, Beneficiary may direct the order in which
the parcels are sold. Trustee shall deliver to the purchaser a trustee's deed or
deeds without covenant or warranty, express or implied. Trustee may postpone the
sale of all or any portion of the Property by public announcement at the time
and place of sale, and from time to time may further postpone the sale by public
announcement in accordance with applicable law; and/or
(c) Entry. Enter into possession of the Property, lease
the Improvements, collect all Rents and Profits and, after deducting all costs
of collection and administration expenses, apply the remaining Rents and Profits
in such order and amounts as Beneficiary, in Beneficiary's sole discretion, may
elect to the payment of Impositions, operating costs, costs of maintenance,
restoration and repairs, Premiums and other charges, including, but not limited
to, costs of leasing the Property and fees and costs of counsel and receivers,
and in reduction of the Secured Indebtedness; and/or
(d) Receivership. Have a receiver appointed to enter into
possession of the Property, lease the Property, collect the Rents and Profits
and apply them as the appropriate court may direct. Beneficiary shall be
entitled to the appointment of a receiver without the necessity of proving
either the inadequacy of the security or the insolvency of Trustor or any of the
Liable Parties. Trustor and Liable Parties shall be deemed to have consented to
the appointment of the receiver. The collection or receipt of any the Rents and
Profits by Beneficiary or any receiver shall not affect or cure any Event of
Default. Beneficiary's rights hereunder include its rights
38
under California Code of Civil Procedure Section 564, as such Section may be
amended from time to time; and/or
(e) Action for Breach of Contract. In accordance with
California Code of Civil Procedure Section 736, as such Section may be amended
from time to time, Beneficiary may bring an action for breach of contract
against Trustor for breach of any "environmental provision" (as such term is
defined in such Section) made by Trustor herein or in any other Loan Document,
for the recovery of damages and/or for the enforcement of the environmental
provision; and/or
(f) Waiver of Security. In accordance with California
Code of Civil Procedure Section 726.5, as such Section may be amended from time
to time, Beneficiary may waive the security of this Deed of Trust as to any
parcel of Real Property that is "environmentally impaired" or is an "affected
parcel" (as such terms are defined in such Section), and as to any Personal
Property attached to such parcel, and thereafter exercise against Trustor, to
the extent permitted by such Section 726.5, the rights and remedies of an
unsecured creditor, including reduction of Beneficiary's claim against Trustor
to judgment, and any other rights and remedies permitted by law. Trustor and
Beneficiary acknowledge that pursuant to California Code of Civil Procedure
Section 726.5, Beneficiary's rights under this Section 11.2 are limited to
instances in which Trustor or any affiliate, agent, co-tenant, partner or joint
venturer of Trustor either (i) caused, contributed to, permitted or acquiesced
in the release (as defined in such Section 726.5) or threatened release of
Hazardous Materials, or (ii) had actual knowledge or notice of such release or
threatened release prior to the execution and delivery of this Deed of Trust and
failed to disclose such release or threatened release to Beneficiary in writing
after Beneficiary's written request for information concerning the environmental
condition of the Property, unless Beneficiary otherwise obtained actual
knowledge of such release or threatened release prior to the execution and
delivery of this Deed of Trust.
In the event Beneficiary elects, in accordance with California
Code of Civil Procedure Section 726.5, to waive all or part of the security of
this Deed of Trust and proceed against Trustor on an unsecured basis, the
valuation of the Real Property, the determination of the environmentally
impaired status of such security and any cause of action for a money judgment
shall, at the request of Beneficiary, be referred to a referee in accordance
with California Code of Civil Procedure Sections 638 et seq. Such referee shall
be an M.A.I. appraiser selected by Beneficiary and approved by Trustor, which
approval shall not be unreasonably withheld or delayed. The decision of such
referee shall be binding upon both Trustor and Beneficiary, and judgment upon
the award rendered by such referee shall be entered in the court in which such
proceeding was commenced in accordance with California Code of Civil Procedure
Sections 644 and 645. Trustor shall pay all reasonable costs and expenses
incurred by Beneficiary in connection with any proceeding under California Code
of Civil Procedure Section 726.5, as such Section may be amended from time to
time.
11.3 APPLICATION OF PROCEEDS OF SALE. In the event of a sale of the
Property pursuant to Section 11.2 of this Deed of Trust, to the extent permitted
by law, the Beneficiary shall determine in its sole discretion the order in
which the proceeds from the sale
39
shall be applied to the payment of the Secured Indebtedness, including without
limitation, the expenses of the sale and of all proceedings in connection with
the sale, including reasonable attorneys' fees and expenses; Impositions,
Premiums, liens, and other charges and expenses; the outstanding principal
balance of the Secured Indebtedness; any accrued interest; any Prepayment Fee;
and any other amounts owed under any of the Loan Documents.
11.4 WAIVER OF JURY TRIAL. To the fullest extent permitted by law,
Trustor and Beneficiary HEREBY WAIVE THEIR RESPECTIVE RIGHT TO TRIAL BY JURY in
any action, proceeding and/or hearing on any matter whatsoever arising out of,
or in any way connected with, the Note, this Deed of Trust or any of the Loan
Documents, or the enforcement of any remedy under any law, statute, or
regulation. Neither party will seek to consolidate any such action in which a
jury has been waived, with any other action in which a jury trial cannot or has
not been waived. Each party has received the advice of counsel with respect to
this waiver.
11.5 BENEFICIARY'S RIGHT TO PERFORM TRUSTOR'S OBLIGATIONS. Trustor
agrees that, if Trustor fails to perform any act or to pay any money which
Trustor is required to perform or pay under the Loan Documents, Beneficiary may
make the payment or perform the act at the cost and expense of Trustor and in
Trustor's name or in its own name. Any money paid by Beneficiary under this
Section 11.5 shall be reimbursed to Beneficiary in accordance with Section 11.6.
11.6 BENEFICIARY REIMBURSEMENT. All payments made, or funds
expended or advanced by Beneficiary pursuant to the provisions of any Loan
Document, shall (1) become a part of the Secured Indebtedness, (2) bear interest
at the Interest Rate (as defined in the Note) from the date such payments are
made or funds expended or advanced, (3) become due and payable by Trustor upon
demand by Beneficiary, and (4) bear interest at the Default Rate (as defined in
the Note) from the date of such demand. Trustor shall reimburse Beneficiary
within ten (10) days after receipt of written demand for such amounts.
11.7 FEES AND EXPENSES. If Beneficiary becomes a party (by
intervention or otherwise) to any action or proceeding affecting, directly or
indirectly, Trustor, the Property or the title thereto or Beneficiary's interest
under this Deed of Trust, or employs an attorney to collect any of the Secured
Indebtedness or to enforce performance of the obligations, covenants and
agreements of the Loan Documents, Trustor shall reimburse Beneficiary in
accordance with Section 11.6 for all expenses, costs, charges and legal fees
incurred by Beneficiary (including, without limitation, the fees and expenses of
experts and consultants), whether or not suit is commenced. Notwithstanding the
foregoing, Trustor shall not be required to reimburse Beneficiary for such
expenses to the extent Trustor is the prevailing party in any action or other
proceeding commenced by Trustor against Beneficiary.
11.8 WAIVER OF CONSEQUENTIAL DAMAGES. Trustor covenants and agrees
that in no event shall Beneficiary be liable for consequential damages, and to
the fullest extent permitted by law, Trustor expressly waives all existing and
future claims that it may have against Beneficiary for consequential damages.
40
11.9 INDEMNIFICATION OF TRUSTEE. Except for gross negligence and
willful misconduct, Trustee shall not be liable for any act or omission or error
of judgment. Trustee may rely on any document believed by it in good faith to be
genuine. All money received by Trustee shall be held in trust, but need not be
segregated (except to the extent required by law), until used or applied as
provided in this Deed of Trust. Trustee shall not be liable for interest on the
money. Trustor shall protect, indemnify and hold harmless Trustee against all
liability and expenses which Trustee may incur in the performance of its duties.
11.10 ACTIONS BY TRUSTEE. At any time, upon written request of
Beneficiary and presentation of this Deed of Trust and the Note for endorsement,
and without affecting the personal liability of any entity or the Liable Parties
for payment of the Secured Indebtedness or the effect of this Deed of Trust upon
the remainder of the Property, Trustee may take such actions as Beneficiary may
request which are permitted by this Deed of Trust or by applicable law.
11.11 SUBSTITUTION OF TRUSTEE. Beneficiary has the power and shall
be entitled, at any time and from time to time, to remove Trustee or any
successor trustee and to appoint another trustee in the place of Trustee or any
successor trustee, by an instrument recorded in the Official Records of the
county or counties where the Property is located. The recorded instrument shall
be conclusive proof of the proper substitution and appointment of the successor
Trustee without the necessity of any conveyance from the predecessor Trustee.
ARTICLE 12
TRUSTOR AGREEMENTS AND FURTHER ASSURANCES
12.1 PARTICIPATION AND SALE OF LOAN.
(a) Beneficiary may sell, transfer or assign its entire
interest or one or more participation interests in the Loan, the Loan Documents,
the Indemnity Agreement and the Guaranty at any time and from time to time,
including, without limitation, its rights and obligations as servicer of the
Loan. Beneficiary may issue mortgage pass-through certificates or other
securities evidencing a beneficial interest in a rated or unrated public
offering or private placement, including depositing the Loan Documents with a
trust that may issue securities (the "Securities"). Beneficiary may forward to
each purchaser, transferee, assignee, servicer, participant, or investor in such
Securities (collectively, the "Investor") or any Rating Agency rating such
Securities and each prospective Investor, all documents and information which
Beneficiary now has or may hereafter acquire relating to the Secured
Indebtedness and to Trustor or any Liable Parties and the Property, whether
furnished by Trustor, any Liable Parties or otherwise, as Beneficiary determines
necessary or desirable.
(b) Trustor will cooperate with Beneficiary and the
rating agencies in furnishing such information and providing such other
assistance, reports and legal opinions as Beneficiary may reasonably request in
connection with any such transaction. Trustor's obligation to cooperate with
Beneficiary does not include the obligation to incur any expenses to
41
any third parties. In addition, Trustor acknowledges that Beneficiary may
release or disclose to potential purchasers or transferees of the Loan, or
potential participants in the Loan, originals or copies of the Loan Documents,
title information, engineering reports, financial statements, operating
statements, appraisals, Leases, rent rolls, and all other materials, documents
and information in Beneficiary's possession or which Beneficiary is entitled to
receive under the Loan Documents, with respect to the Loan, Trustor, Liable
Parties or the Property. Trustor shall also furnish to such Investors or such
prospective Investors or such Rating Agency any and all information concerning
the Property, the Leases, the financial condition of Trustor or any Liable
Parties as may be requested by Beneficiary, any Investor or any prospective
Investor or any Rating Agency in connection with any sale, transfer or
participation interest. To the extent such requested information is not publicly
available, Trustor may require in a reasonable manner all prospective recipients
of such information to agree to keep the non-public information they receive
confidential as a condition precedent to Trustor's disclosure.
12.2 REPLACEMENT OF NOTE. Upon notice to Trustor of the loss,
theft, destruction or mutilation of the Note, Trustor will execute and deliver,
in lieu of the original Note, a replacement note, identical in form and
substance to the Note and dated as of the Execution Date. Upon the execution and
delivery of the replacement note, all references in any of the Loan Documents to
the Note shall refer to the replacement note.
12.3 TRUSTOR'S ESTOPPEL. Within ten (10) business days after a
request by Beneficiary, Trustor shall furnish an acknowledged written statement
in form satisfactory to Beneficiary (i) setting forth the amount of the Secured
Indebtedness, (ii) stating either that no offsets or defenses exist against the
Secured Indebtedness, or if any offsets or defenses are alleged to exist, their
nature and extent, (iii) whether any default then exists under the Loan
Documents or any event has occurred and is continuing, which, with the lapse of
time, the giving of notice, or both, would constitute such a default, and (iv)
any other matters as Beneficiary may reasonably request. If Trustor does not
furnish an estoppel certificate within the 10-day period, Trustor appoints
Beneficiary as its attorney-in-fact to execute and deliver the certificate on
its behalf, which power of attorney shall be coupled with an interest and shall
be irrevocable.
12.4 FURTHER ASSURANCES. Trustor shall, without expense to
Beneficiary and/or Trustee, execute, acknowledge and deliver all further acts,
deeds, conveyances, mortgages, deeds of trust, assignments, security agreements,
and financing statements as Beneficiary and/or Trustee shall from time to time
reasonably require, to assure, convey, assign, transfer and confirm unto
Beneficiary and/or Trustee the Property and rights conveyed or assigned by this
Deed of Trust or which Trustor may become bound to convey or assign to
Beneficiary and/or Trustee, or for carrying out the intention or facilitating
the performance of the terms of this Deed of Trust or any of the other Loan
Documents, or for filing, refiling, registering, reregistering, recording or
rerecording this Deed of Trust. If Trustor fails to comply with the terms of
this Section, Beneficiary may, at Trustor's expense, perform Trustor's
obligations for and in the name of Trustor, and Trustor hereby irrevocably
appoints Beneficiary as its attorney-in-fact to do so. The appointment of
Beneficiary as attorney-in-fact is coupled with an interest.
42
12.5 SUBROGATION. Beneficiary shall be subrogated to the lien of
any and all encumbrances against the Property paid out of the proceeds of the
Loan and to all of the rights of the recipient of such payment.
ARTICLE 13
SECURITY AGREEMENT
13.1 SECURITY AGREEMENT. THIS DEED OF TRUST CREATES A LIEN ON THE
PROPERTY. IN ADDITION, TO THE EXTENT THE PROPERTY IS PERSONAL PROPERTY OR
FIXTURES UNDER APPLICABLE LAW, THIS DEED OF TRUST CONSTITUTES A SECURITY
AGREEMENT UNDER THE CALIFORNIA UNIFORM COMMERCIAL CODE (THE "U.C.C.") AND ANY
OTHER APPLICABLE LAW AND IS FILED AS A FIXTURE FILING. UPON THE OCCURRENCE OF AN
EVENT OF DEFAULT, BENEFICIARY MAY, AT ITS OPTION, PURSUE ANY AND ALL RIGHTS AND
REMEDIES AVAILABLE TO A SECURED PARTY WITH RESPECT TO ANY PORTION OF THE
PROPERTY, AND/OR BENEFICIARY MAY, AT ITS OPTION, PROCEED AS TO ALL OR ANY PART
OF THE PROPERTY IN ACCORDANCE WITH BENEFICIARY'S RIGHTS AND REMEDIES WITH
RESPECT TO THE LIEN CREATED BY THIS DEED OF TRUST. THIS FINANCING STATEMENT
SHALL REMAIN IN EFFECT AS A FIXTURE FILING UNTIL THIS DEED OF TRUST IS RELEASED
OR SATISFIED OF RECORD.
13.2 REPRESENTATIONS AND WARRANTIES. Trustor warrants, represents
and covenants as follows:
(a) To the extent that Beneficiary provided a warranty of
title to the Personal Property pursuant to the MetLife Conveyance or the Xxxx of
Sale delivered by Beneficiary to Trustor in connection with Trustor's
acquisition of the Property, Trustor owns the Personal Property free from any
lien, security interest, encumbrance or adverse claim, except as otherwise
expressly approved by Beneficiary in writing. Trustor will notify Beneficiary
of, and will protect, defend and indemnify Beneficiary against, all claims and
demands of all persons at any time claiming any rights or interest in the
Personal Property.
(b) The Personal Property shall not be used or bought for
personal, family, or household purposes, but shall be bought and used solely for
the purpose of carrying on Trustor's business.
(c) Trustor will not remove the Personal Property without
the prior written consent of Beneficiary, except the items of Personal Property
which are consumed, worn out in ordinary usage, or otherwise reasonably
determined by Trustor to be obsolete or in need of replacement, shall be
promptly replaced by Trustor with other Personal Property of value equal to or
greater than the value of the replaced Personal Property.
43
13.3 CHARACTERIZATION OF PROPERTY. The grant of a security interest
to Beneficiary in this Deed of Trust shall not be construed to limit or impair
the lien of this Deed of Trust or the rights of Beneficiary with respect to any
property which is real property or which the parties have agreed to treat as
real property. To the fullest extent permitted by law, everything used in
connection with the production of Rents and Profits is, and at all times and for
all purposes and in all proceedings, both legal and equitable, shall be regarded
as real property, irrespective of whether or not the same is physically attached
to the Land and/or Improvements.
13.4 PROTECTION AGAINST PURCHASE MONEY SECURITY INTERESTS. It is
understood and agreed that in order to protect Beneficiary from the effect of
U.C.C. Section 9334, as amended from time to time and as enacted in the State,
in the event that Trustor intends to purchase any goods which may become
fixtures attached to the Property, or any part of the Property, and such goods
will be subject to a purchase money security interest held by a seller or any
other party:
(a) Before executing any security agreement or other
document evidencing or perfecting the security interest, Trustor shall obtain
the prior written approval of Beneficiary. All requests for such written
approval shall be in writing and contain the following information: (i) a
description of the fixtures (ii) the address at which the fixtures will be
located; and (iii) the name and address of the proposed holder and proposed
amount of the security interest.
(b) Trustor shall pay all sums and perform all
obligations secured by the security agreement. A default by Trustor under the
security agreement shall constitute a default under this Deed of Trust. If
Trustor fails to make any payment on an obligation secured by a purchase money
security interest in the Personal Property or any fixtures, Beneficiary, at its
option, may pay the secured amount and Beneficiary shall be subrogated to the
rights of the holder of the purchase money security interest.
(c) Beneficiary shall have the right to acquire by
assignment from the holder of the security interest for the Personal Property or
fixtures, all contract rights, accounts receivable, negotiable or non-negotiable
instruments, or other evidence of indebtedness and to enforce the security
interest as assignee.
(d) The provisions of subparagraphs (b) and (c) of this
Section 13.4 shall not apply if the goods which may become fixtures are of at
least equivalent value and quality as the Personal Property being replaced and
if the rights of the party holding the security interest are expressly
subordinated to the lien and security interest of this Deed of Trust in a manner
satisfactory to Beneficiary.
ARTICLE 14
MISCELLANEOUS COVENANTS
14.1 NO WAIVER. No single or partial exercise by Beneficiary and/or
Trustee, or delay or omission in the exercise by Beneficiary and/or Trustee, of
any right or remedy under the
44
Loan Documents shall preclude, waive or limit the exercise of any other right or
remedy. Beneficiary shall at all times have the right to proceed against any
portion of, or interest in, the Property without waiving any other rights or
remedies with respect to any other portion of the Property. No right or remedy
under any of the Loan Documents is intended to be exclusive of any other right
or remedy but shall be cumulative and may be exercised concurrently with or
independently from any other right and remedy under any of the Loan Documents or
under applicable law.
14.2 NOTICES. All notices, demands and requests given or required
to be given by, pursuant to, or relating to, this Deed of Trust shall be in
writing. All notices shall be deemed to have been properly given if mailed by
United States registered or certified mail, with return receipt requested,
postage prepaid, or by United States Express Mail or other comparable overnight
courier service to the parties at the addresses set forth in the Defined Terms
(or at such other addresses as shall be given in writing by any party to the
others) and shall be deemed complete upon receipt or refusal to accept delivery
as indicated in the return receipt or in the receipt of such United States
Express Mail or courier service.
14.3 HEIRS AND ASSIGNS; TERMINOLOGY.
(a) This Deed of Trust applies to, inures to the benefit
of, and binds Trustor, Beneficiary, Liable Parties and Trustee, their heirs,
legatees, devisees, administrators, executors, successors and assigns. The term
"Trustor" shall include both the original Trustor and any subsequent owner or
owners of any of the Property. The term "Beneficiary" shall include both the
original Beneficiary and any subsequent holder or holders of the Note. The term
"Trustee" shall include both the original Trustee and any subsequent successor
or additional trustee(s) acting under this Deed of Trust. The term "Liable
Parties" shall include both the original Liable Parties and any subsequent or
substituted Liable Parties.
(b) In this Deed of Trust, whenever the context so
requires, the masculine gender includes the feminine and/or neuter, and the
singular number includes the plural.
(c) If more than one party executes this Deed of Trust as
Trustor, the obligations of such parties shall be the joint and several
obligations of each of them.
14.4 SEVERABILITY. If any provision of this Deed of Trust should be
held unenforceable or void, then that provision shall be separated from the
remaining provisions and shall not affect the validity of this Deed of Trust
except that if the unenforceable or void provision relates to the payment of any
monetary sum, then, Beneficiary may, at its option, declare the Secured
Indebtedness immediately due and payable.
14.5 APPLICABLE LAW. This Deed of Trust shall be construed and
enforced in accordance with the laws of the State.
14.6 CAPTIONS. The captions are inserted only as a matter of
convenience and for reference, and in no way define, limit, or describe the
scope or intent of any provisions of this Deed of Trust.
45
14.7 TIME OF THE ESSENCE. Time shall be of the essence with respect
to all of Trustor's obligations under this Deed of Trust and the other Loan
Documents.
14.8 NO MERGER. In the event that Beneficiary should become the
owner of the Property, there shall be no merger of the estate created by this
Deed of Trust with the fee estate in the Property.
14.9 NO MODIFICATIONS. This Deed of Trust may not be changed,
amended or modified, except in a writing expressly intended for such purpose and
executed by Trustor and Beneficiary.
14.10 JOINT AND SEVERAL LIABILITY. This Deed of Trust and all other
Loan Documents are binding upon each Trustor, its heirs, representatives,
administrators, executors, successors and assigns and inures to the benefit of
and is enforceable by Beneficiary, its successors, endorsees and assigns
(including, without limitation, any entity to which Beneficiary assigns or sells
all or any portion of its interest in the Loan). Subject to the provisions of
Section 9.1 above, the obligations of each Trustor hereunder and under all other
Loan Documents are joint and several.
14.11 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts each
of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument.
14.12 ENTIRE AGREEMENT. This Deed of Trust, the Note, the other Loan
Documents, the Guaranty and the Indemnity Agreement constitute the entire
agreement between Trustor and Beneficiary with respect to the subject matter
hereof and all understandings, oral representations and agreements heretofore or
simultaneously had among the parties are merged in, and are contained in, such
documents and instruments.
14.13 NO THIRD PARTY BENEFICIARIES. Nothing contained herein is
intended or shall be deemed to create or confer any rights upon any third person
not a party hereto, whether as a third-party beneficiary or otherwise, except as
expressly provided herein.
14.14 NON-DISCRIMINATION. By accepting this Deed of Trust,
Beneficiary herein covenants by and for itself, its heirs, executors,
administrators and assigns, and all persons claiming under or through it, and
this Deed of Trust is made and accepted upon and subject to the following
conditions: That there shall be no discrimination against or segregation of any
person or group of persons on account of sex, marital status, race, color,
religion, creed, national origin or ancestry, in the leasing, subleasing,
transferring, use, or enjoyment of the land herein encumbered nor shall
Beneficiary itself, or any person claiming under or through it establish or
permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy, of tenants,
lessees, sublessees, subtenants or vendees in the land herein encumbered.
46
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust,
or has caused this Deed of Trust to be executed by its duly authorized
representative(s) as of the Execution Date.
XXXXXXX PROPERTIES - ONE CAL PLAZA, LLC
a Delaware limited liability company
By: Xxxxxxx Properties, L.P.,
a Maryland limited partnership,
Its Member
By: Xxxxxxx Properties, Inc.,
a Maryland corporation,
Its General Partner
By: /s/ XXXXXXX X. XXXXXXXXX
--------------------------
Xxxxxxx X. Xxxxxxxxx
President and Co-Chief
Executive Officer
47
EXHIBIT A
LEGAL DESCRIPTION
PART A
PARCEL 1:
XXXX 0, 0, 0 XXX 0 XX XXXXX XX. 00000, IN THE CITY OF LOS ANGELES, COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 1070 PAGES 31 THRU 38
INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THAT PORTION OF 3RD STREET AS RETAINED AND UNVACATED AS SAID PORTION IS
SET OUT IN THE CITY OF LOS ANGELES RESOLUTION TO VACATE NO. 82-01653 RECORDED
SEPTEMBER 16, 1982 AS DOCUMENT NO. 82-943159 IN OFFICIAL RECORDS OF SAID COUNTY
AND AS DELINEATED ON STREET VACATION MAPS ON SHEETS 1 AND 2 OF 7 IN VOLUME 23,
PAGE 68.
PARCEL 2:
THAT PORTION OF 3RD STREET AS SHOWN AND DEDICATED ON THE MAP OF BEAUDRY
TRACT, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA,
AS PER MAP RECORDED IN BOOK 1, PAGES 401 AND 402 OF MISCELLANEOUS RECORDS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. AS RETAINED AND UNVACATED AS
SAID PORTION IS SET OUT IN THE CITY OF LOS ANGELES RESOLUTION TO VACATE NO.
82-01653 RECORDED SEPTEMBER 16, 1982 AS DOCUMENT NO. 82-943159, IN RECORDS OF
SAID COUNTY AND AS DELINEATED ON STREET VACATION MAPS ON SHEETS 1 AND 2 OF 7 IN
VOLUME 23, PAGE 68, LYING NORTHWESTERLY OF A LINE PARALLEL WITH AND DISTANT
SOUTHEASTERLY 178.54 FEET, MEASURED AT RIGHT ANGLES, FROM THAT CERTAIN COURSE
(AND ITS NORTHEASTERLY PROLONGATION) IN THE NORTHWESTERLY LINE OF XXX 0 XX XXXXX
XX. 00000 AS PER MAP RECORDED IN BOOK 912, PAGES 39 TO 45 INCLUSIVE OF MAPS,
RECORDS OF SAID COUNTY, SHOWN ON SAID TRACT AS HAVING A REARING AND DISTANCE OF
(NORTH 37 DEGREES 50 MINUTES 12 SECONDS EAST 286.04 FEET) AND FOR THE PURPOSE OF
THIS DESCRIPTION HAVING A HEARING OF NORTH 37 DEGREES 50 MINUTES 21 SECONDS
EAST.
PARCEL 3:
THOSE PORTIONS OF THE REAL PROPERTY LYING WITHIN GRAND AVENUE, 84 FEET WIDE, AND
GENERAL XXXXXXXX XXXXXXXXXX WAY, 40 FEET WIDE, AS SHOWN ON THE MAP OF TRACT NO.
30780. RECORDED IN BOOK 912, PAGES 39 THROUGH 45, INCLUSIVE, OF MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF LOS ANGELES COUNTY, LYING BELOW A HORIZONTAL
PLANE AT ELEVATION 369.5 FEET BASED ON NATIONAL GEODETIC VERTICAL DATUM OF 1929,
INCLUDED WITHIN A STRIP OF LAND, ONE-FOOT WIDE, LYING CONTIGUOUS TO AND
NORTHERLY AND NORTHWESTERLY OF THE FOLLOWING DESCRIBED LINE;
BEGINNING AT THE INTERSECTION OF THE NORTHWESTERLY PROLONGATION OF A LINE
PARALLEL WITH AND DISTANT 2.15 FEET SOUTHWESTERLY OF THE NORTHEASTERLY STRAIGHT
LINE OF XXX 0 XX XXXX XXXXX XX. 00000 WITH THE CURVED NORTHERLY LINE OF SAID
LOT; THENCE WESTERLY AND SOUTHWESTERLY ALONG SAID CURVED LINE TO THE STRAIGHT
NORTHWESTERLY LINE OF SAID LOT; THENCE SOUTHWESTERLY ALONG SAID NORTHWESTERLY
LINE AND ITS SOUTHWESTERLY PROLONGATION TO ITS INTERSECTION WITH A LINE PARALLEL
WITH AND DISTANT 21.3 PARALLEL OF THE CENTER LINE OF 3RD PLACE, 80 FEET WIDE, AS
SAID STREET IS SHOWN ON SAID MAP.
EXCEPT THEREFROM THAT PORTION LYING NORTHEASTERLY OF SAID FIRST MENTIONED
PARALLEL LINE.
PARCEL 4:
Page 1 of 18
PARCEL 4A:
TRUCK ACCESS AND SOUTH DRIVEWAY EASEMENT
A NON-EXCLUSIVE DRIVEWAY BASEMENT FOR INGRESS AND EGRESS OF VEHICLES AND
PEDESTRIANS TO THE TRUCK DOCK LOCATED WITHIN XXX XXXXX 0X XXXXXXXXXXXX XXXXXXXX
TO LOWER GRAND AVENUE ("TRUCK ACCESS"), WITHIN THAT PORTION OF 3RD PLACE AS
SHOWN AND DEDICATED ON THE MAP OF TRACT NO. 30780, IN THE CITY OF LOS ANGELES,
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 912
PAGES 39 THROUGH 45 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, SAID PORTION OF 3RD PLACE VACATED PER CITY OF LOS ANGELES
RESOLUTION TO VACATE NO. 82-01653 RECORDED SEPTEMBER 16, 1982 AS DOCUMENT NO.
82-943159 IN OFFICIAL RECORDS OF SAID COUNTY AND AS DELINEATED ON STREET
VACATION MAPS ON SHEET 3 OF 7 IN VOLUME 23, PAGE 68, SAID PORTION LYING ABOVE AN
ELEVATION OF 347.00 FEET AND BELOW AN ELEVATION ALLOWING CLEARANCE OF 15.00 FEET
ABOVE THE SURFACE OF THE FINISH GRADE OF IMPROVEMENTS SAID ELEVATION IS BASED ON
NATIONAL GEODETIC VERTICAL DATUM OF 1929 PER ORDINANCE NO. 150,763 OF THE CITY
OF LOS ANGELES AS OBTAINED FROM CITY OF LOS ANGELES BENCHMARK NO. 12-06750,
DESCRIBED AS A CUT SPIKE IN XXXXX XXXX XX 0XX XXXXXX, 21.6 FEET WEST OF OLIVE
STREET, AT THE WEST END OF A CATCH BASIN, ELEVATION - 273.999 FEET (1970
ADJUSTMENT), SAID PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF A LINE PARALLEL WITH AND DISTANT SOUTHWESTERLY
18.70 FEET, MEASURED AT RIGHT ANGLES, FROM THE NORTHWESTERLY PROLONGATION OF THE
TANGENT PORTION OF THE SOUTHWESTERLY LINE OF XXX 0 XX XXXX XXXXX XX. 00000, WITH
THE SOUTHWESTERLY PROLONGATION OF THE NORTHWESTERLY LINE OF XXX 0 XX XXXX XXXXX
XX. 00000, SAID NORTHWESTERLY LINE SHOWN THEREON AS HAVING A BEARING OF NORTH 37
DEGREES 50 MINUTES 12 SECONDS EAST (NORTH 37 DEGREES 50 MINUTES 21 SECONDS EAST
FOR THE PURPOSE OF THIS DESCRIPTION); THENCE ALONG SAID SOUTHWESTERLY
PROLONGATION SOUTH 37 DEGREES 50 MINUTES 21 SECONDS WEST 31.14 FEET; THENCE
SOUTH 52 DEGREES 09 MINUTES 39 SECONDS EAST 13.50 FEET; THENCE NORTH 68 DEGREES
33 MINUTES 12 SECONDS EAST 36.22 FEET TO SAID LINE MENTIONED HEREINABOVE AS
BEING PARALLEL WITH AND DISTANT SOUTHWESTERLY 18-70 FEET FROM THE NORTHWESTERLY
PROLONGATION OF THE TANGENT PORTION OF THE SOUTHWESTERLY LINE OF LOT 3; THENCE
ALONG SAID PARALLEL LINE NORTH 52 DEGREES 09 MINUTES 39 SECONDS WEST 32.00 FEET
TO THE POINT OF BEGINNING.
PARCEL 4B:
SOUTH STAIRWAY EASEMENT
A NON-EXCLUSIVE EASEMENT TO ERECT, MAINTAIN AND USE A CANTILEVERED STAIRWAY TO
PROVIDE PEDESTRIAN EGRESS, FOR THE PURPOSE OF MEETING THE REQUIREMENTS OF ALL
APPLICABLE CODES, FROM THE 000-XXXX XXXXX XXXXX XX XXX XXXXX 0X IMPROVEMENTS TO
THE 000-XXXX XXXXX XXXXXXXX XXXXX XX XXXXX 0X CONNECTION WITH UPPER GRAND
AVENUE, WITHIN THAT PORTION OF 3RD PLACE AS SHOWN AND DEDICATED ON THE MAP OF
TRACT NO. 30780, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 912 PAGES 39 THROUGH 45 INCLUSIVE OF
MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, SAID PORTION OF 3RD
PLACE VACATED PER CITY OF LOS ANGELES RESOLUTION TO VACATE NO. 82-01653 RECORDED
SEPTEMBER 16, 1982 AS DOCUMENT NO. 82-943159 IN OFFICIAL RECORDS OF SAID COUNTY
AND AS DELINEATED ON STREET VACATION MAPS ON SHEET 3 OF 7 IN VOLUME 23, PAGE 68,
SAID PORTION LYING ABOVE AN ELEVATION OF 364.00 FEET, SAID ELEVATION IS BASED ON
NATIONAL GEODETIC VERTICAL DATUM OF 1929 PER ORDINANCE NO. 150,763 OF THE CITY
OF LOS ANGELES AS OBTAINED FROM CITY OF LOS ANGELES BENCHMARK NO. 12-06750,
DESCRIBED AS A CUT SPIKE IN XXXXX XXXX XX 0XX XXXXXX, 21.6
Page 2 of 18
FEET WEST OF OLIVE STREET, AT THE WEST END OF A CATCH BASIN. ELEVATION - 273.999
FEET (1970 ADJUSTMENT), SAID PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF A LINE PARALLEL WITH AND DISTANT SOUTHWESTERLY
18.70 FEET, MEASURED AT RIGHT ANGLES, FROM THE TANGENT PORTION OF THE
SOUTHWESTERLY LINE OF XXX 0 XX XXXX XXXXX XX. 00000, AND ITS NORTHWESTERLY
PROLONGATION, WITH A LINE PARALLEL WITH AND DISTANT SOUTHEASTERLY 38.50 FEET,
MEASURED AT RIGHT ANGLES, FROM THE SOUTHWESTERLY PROLONGATION OF THE
NORTHWESTERLY LINK OF XXX 0 XX XXXX XXXXX XX. 00000, SAID NORTHWESTERLY LINE
SHOWN THEREON AS HAVING A BEARING OF NORTH 37 DEGREES 50 MINUTES 12 SECONDS EAST
(NORTH 37 DEGREES 50 MINUTES 21 SECONDS EAST FOR THE PURPOSE OF THIS
DESCRIPTION); THENCE ALONG LAST SAID PARALLEL LINE SOUTH 37 DEGREES 50 MINUTES
21 SECONDS WEST 9.50 FEET; THENCE ALONG A LINE PARALLEL WITH THE SOUTHWESTERLY
LINE OF SAID XXX 0, XXXXX 00 DEGREES 09 MINUTES 39 SECONDS EAST 40.00 FEET;
THENCE ALONG A LINE PARALLEL WITH SAID SOUTHWESTERLY PROLONGATION OF THE
NORTHWESTERLY LINE OF SAID XXX 0, XXXXX 00 DEGREES 50 MINUTES 21 SECONDS EAST
9.50 FEET TO SAID LINE MENTIONED HEREINBEFORE AS BEING PARALLEL WITH AND DISTANT
SOUTHWESTERLY 18.70 FEET FROM THE SOUTHWESTERLY LINE OF LOT 3; THENCE ALONG SAID
PARALLEL LINK NORTH 52 DEGREES 09 MINUTES 39 SECONDS WEST 40.00 FEET TO THE
POINT OF BEGINNING.
PARCEL 4C:
NORTHEAST WALKWAY EASEMENT
A TEMPORARY, NON-EXCLUSIVE STAIRWAY AND WALKWAY PEDESTRIAN EGRESS EASEMENT THE
TERM OF WHICH SHALL AUTOMATICALLY TERMINATE AND BE OF NO FURTHER FORCE AND
EFFECT UPON THE EARLIER TO XXXXX XX XXX XXXXXXXXXXX XX XXX XXXXX 0X LEASE OR
UPON THE COMMENCEMENT OF THE TERM OF THE PERMANENT EASEMENT DESCRIBED BELOW.
SUCH TEMPORARY EASEMENT SHALL BE OVER, ACROSS AND THROUGH THE TEMPORARY EASEMENT
AREA, FOR THE PURPOSE OF MEETING THE REQUIREMENTS OF ALL APPLICABLE FIRE CODES
REGARDING PEDESTRIAN EGRESS FROM THE 360 FEET LEVEL OF THE IMPROVEMENTS ON THE
PHASE 1A PROPERTY TO THE 385 FEET LEVEL OF THE IMPROVEMENTS ON THE PHASE 1A
PROPERTY WITHIN THAT PORTION OF XXX 0 XX XXXXX XX. 00000, IN THE CITY OF LOS
ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK
912 PAGES 39 TO 45 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, SAID PORTION LYING ABOVE AN ELEVATION OF 359.00 FEET; AND BELOW AN
ELEVATION OF 394.50 FEET; SAID ELEVATIONS ARE BASED ON NATIONAL GEODEGTIC
VERTICAL DATUM OF 1929 PER ORDINANCE NO. 150,763 OF THE CITY OF LOS ANGELES AS
OBTAINED FROM CITY OF LOS ANGELES BENCHMARK NO. 12-06750, DESCRIBED AS A CUT
SPIKE IN XXXXX XXXX XX 0XX XXXXXX. 21.6 FEET WEST OF OLIVE STREET, AT THE WEST
END OF A CATCH BASIN, ELEVATION - 273.999 FEET (1970 ADJUSTMENT), SAID PORTION
DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF A LINE PARALLEL WITH AND DISTANT NORTHEASTERLY
20.00 FEET, MEASURED AT RIGHT ANGLES, FROM THE TANGENT PORTION OF THE
NORTHEASTERLY LINE OF SAID XXX 0 XX XXXXX XX. 00000, WITH A LINE PARALLEL WITH
AND DISTANT SOUTHEASTERLY 178.54 FEET, MEASURED AT RIGHT ANGLES, FROM THE
NORTHEASTERLY PROLONGATION OF THE NORTHWESTERLY LINE OF XXX 0 XX XXXX XXXXX XX.
00000, SAID NORTHWESTERLY LINE SHOWN THEREON AS HAVING A BEARING OF NORTH 37
DEGREES 50 MINUTES 12 SECONDS EAST (NORTH 37 DEGREES 50 MINUTES 21 SECONDS EAST
FOR THE PURPOSE OF THIS DESCRIPTION); THENCE ALONG LAST SAID PARALLEL LINE SOUTH
37 DEGREES 50 MINUTES 21 SECONDS WEST 211.13 FEET TO THE TRUE POINT OF BEGINNING
OF THIS DESCRIPTION; THENCE CONTINUING ALONG LAST SAID PARALLEL LINE SOUTH 37
DEGREES 50 MINUTES 21 SECONDS WEST 30.00 FEET; THENCE SOUTH 52 DEGREES 09
MINUTES 39 SECONDS EAST 15.00 FEET; THENCE NORTH 37 DEGREES 50 MINUTES 20
SECONDS EAST 30.00 FEET; THENCE NORTH 52 DEGREES 09 MINUTES 39 SECONDS WEST
15.00
Page 3 of 18
FEET TO THE TRUE POINT OF BEGINNING.
THE PERMANENT EASEMENT IS DESCRIBED AS FOLLOWS:
A NON-EXCLUSIVE STAIRWAY AND WALKWAY PEDESTRIAN EGRESS EASEMENT THE TERM OF
WHICH SHALL COMMENCE UPON THE ISSUANCE BY THE CITY OF LOS ANGELES OF A
CERTIFICATE OF OCCUPANCY OR TEMPORARY CERTIFICATE OF OCCUPANCY ALLOWING THE
OCCUPANCY AND USE OF THE IMPROVEMENTS TO BE CONSTRUCTED IN THE PERMANENT
BASEMENT AREA, OVER, ACROSS AND THROUGH THE PERMANENT EASEMENT AREA, FOR THE
PURPOSE OF MEETING THE REQUIREMENTS OF ALL APPLICABLE FIRE CODES REGARDING
PEDESTRIAN EGRESS FROM THE 360 FEET LEVEL OF THE IMPROVEMENTS ON THE PHASE 1A
PROPERTY TO OLIVE STREET. THE BASEMENT RIGHTS GRANTED AND CONVEYED IN THIS
PARAGRAPH 1(B) SHALL AUTOMATICALLY TERMINATE AND BE OF NO FURTHER FORCE OR
EFFECT ON AUGUST 25, 2082. SAID PERMANENT EASEMENT AREA BEING DESCRIBED AS
FOLLOWS:
A VOLUME OF AIRSPACE OVER THAT PORTION OF XXX 0 XX XXXXX XX. 00000, IN THE CITY
OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED
IN BOOK 912 PAGES 39 THROUGH 45 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, SAID VOLUME LYING BETWEEN UPPER AND LOWER ELEVATION
PLANES AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF A LINE PARALLEL WITH AND DISTANT SOUTHWESTERLY
18.70 FEET, MEASURED AT RIGHT ANGLES, FROM THE TANGENT PORTION OF THE
SOUTHWESTERLY LINE OF XXX 0 XX XXXX XXXXX XX. 00000, AND ITS NORTHWESTERLY
PROLONGATION WITH A LINE PARALLEL WITH AND DISTANT SOUTHEASTERLY 176.00 FEET,
MEASURED AT RIGHT ANGLES, FROM THE SOUTHWESTERLY PROLONGATION OF THE
NORTHWESTERLY LINE OF SAID XXX 0 XX XXXXX XX. 00000, SAID NORTHWESTERLY LINE
SHOWN THEREON AS HAVING A BEARING OF NORTH 37 DEGREES 50 MINUTES 12 SECONDS EAST
(NORTH 37 DEGREES 50 MINUTES 21 SECONDS EAST FOR THE PURPOSE OF THIS
DESCRIPTION); THENCE ALONG LAST SAID PARALLEL LINE NORTH 37 DEGREES 50 MINUTES
21 SECONDS EAST 162.29 FEET, THENCE AT RIGHT ANGLES SOUTH 52 DEGREES 09 MINUTES
39 SECONDS EAST 2.54 FEET TO A LINE PARALLEL WITH AND DISTANT SOUTHEASTERLY
178.54 FEET, MEASURED AT RIGHT ANGLES, FROM SAID NORTHWESTERLY LINE OF LOT 3,
SHOWN HEREINABOVE AS HAVING A BEARING OF NORTH 37 DEGREES 50 MINUTES 21 SECONDS
EAST, THENCE ALONG SAID PARALLEL LINE NORTH 37 DEGREES 50 MINUTES 21 SECONDS
EAST 393.26 FEET TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION, SAID VOLUME
LYING BETWEEN A LOWER ELEVATION PLANE OF 370.00 FEET AND AN UPPER ELEVATION
PLANS OF 382.00 FEET; THENCE ALONG THE FOLLOWING COURSE, BETWEEN SAID ELEVATION
PLANKS:
NORTH 37 DEGREES 50 MINUTES 21 SECONDS EAST 14.25 FEET,
SOUTH 52 DEGREES 09 MINUTES 39 SECONDS EAST 32.50 FEET,
NORTH 37 DEGREES 50 MINUTES 21 SECONDS EAST 4.50 FEET,
SOUTH 52 DEGREES 09 MINUTES 39 SECONDS EAST 9.00 FEET;
THENCE ALONG THE FOLLOWING COURSES, BETWEEN A LOWER ELEVATION PLANE OF 370.00
FEET AND AN UPPER ELEVATION PLANS OF 378.00 FEET:
SOUTH 52 DEGREES 09 MINUTES 39 SECONDS EAST 31.75 FEET,
SOUTH 37 DEGREES 50 MINUTES 21 SECONDS WEST 22.25 FEET,
SOUTH 52 DEGREES 09 MINUTES 39 SECONDS EAST 12.25 FEET,
THENCE SOUTH 52 DEGREES 09 MINUTES 39 SECONDS EAST 16.00 FEET TO A LOWER
ELEVATION PLANE OF 360.00 FEET AND AN UPPER ELEVATION PLANS OF 368.00 FEET;
THENCE ALONG THE FOLLOWING COURSES, BETWEEN A LOWER ELEVATION PLANS OF 360.00
FEET AND AN UPPER ELEVATION OF 368.00:
Page 4 of 18
SOUTH 52 DEGREES 09 MINUTES 39 SECONDS EAST 42.55 FEET TO THE SOUTHEASTERLY LINE
OF SAID XXX 0, XXXXX 00 DEGREES 51 MINUTES 20 SECONDS NEST 14.50 FEET ALONG SAID
SOUTHEASTERLY LINE, NORTH 52 DEGREES 09 MINUTES 39 SECONDS WEST 42.55 FEET TO A
LINE WHICH BEARS SOUTH 37 DEGREES 50 MINUTES 21 SECONDS WEST AND PASSES THROUGH
THE SOUTHEASTERLY TERMINUS OF THE HEREINBEFORE MENTIONED COURSE RECITED AS
"SOUTH 52 DEGREES 09 MINUTES 39 SECONDS EAST 16.00 FEET";
THENCE NORTH 52 DEGREES 09 MINUTES 39 SECONDS WEST 16.00 FEET TO A LOWER
ELEVATION PLANE OF 370.00 FEET AND AN UPPER ELEVATION PLANE OF 378.00 FEET;
THENCE ALONG THE FOLLOWING COURSES, BETWEEN A LOWER ELEVATION OF 370.00 FEET AND
AN UPPER ELEVATION PLANE OF 378.00 FEET;
NORTH 52 DEGREES 09 MINUTES 39 SECONDS WEST 27.00 FEET,
NORTH 37 DEGREES 50 MINUTES 21 SECONDS EAST 14.50 FEET,
NORTH 52 DEGREES 09 MINUTES 39 SECONDS WEST 17.00 FEET TO A LINE WHICH BEARS
SOUTH 37 DEGREES 50 MINUTES 21 SECONDS WEST AND WHICH PASSES THROUGH THE
SOUTHEASTERLY TERMINUS OF THAT CERTAIN COURSE RECITED AS
"SOUTH 52 DEGREES 09 MINUTES 39 SECONDS EAST 9.00 FEET",
NORTH 37 DEGREES 50 MINUTES 21 SECONDS EAST 3.50 FEET TO A LINE WHICH BEARS
SOUTH 52 DEGREES 09 MINUTES 39 SECONDS EAST AND WHICH PASSES THROUGH THE TRUE
POINT OF BEGINNING;
THENCE NORTH 52 DEGREES 09 MINUTES 39 SECONDS WEST 41.50 FEET, BETWEEN A LOWER
ELEVATION PLANE OF 370.00 FEET AND AN UPPER ELEVATION PLANS OF 382.00 FEET, TO
THE TRUE POINT OF BEGINNING.
THE SOUTHEASTERLY TERMINUS OF TEE VOLUME OF AIRSPACE HAVING AN UPPER ELEVATION
OF 382.00 FEET IS TO BE BETWEEN THE NORTHEASTERLY TERMINUS OF THAT CERTAIN
COURSE RECITED AS "NORTH 37 DEGREES 50 MINUTES 21 SECONDS EAST 3.50 "FEET" AND
THE SOUTHEASTERLY TERMINUS OF THAT CERTAIN COURSE RECITED AS "SOUTH 52 DEGREES
09 MINUTES 39 SECONDS" EAST 9.00 FEET".
SAID ELEVATIONS ARE BASED ON THE NATIONAL GEODETIC VERTICAL DATUM OF 1929, PER
ORDINANCE NO. 150, 763 OF THE CITY OF LOS ANGELES, AS OBTAINED FROM CITY OF LOS
ANGELES BENCHMARK NO. 12-06750, DESCRIBED AS A CUT SPIKE IN THE XXXXX XXXX XX
0XX XXXXXX, 21.6 FEET WEST OF OLIVE STREET, AT THE WEST END OF A CATCH BASIN,
ELEVATION - 273.999 FEET (1970 ADJUSTMENT).
SAID TEMPORARY AND PERMANENT BASEMENTS BEING DESCRIBED IN DOCUMENTS RECORDED
OCTOBER 3, 1990 AS INSTRUMENT NO. 00-0000000 AND AS INSTRUMENT NO. 00-0000000,
BOTH OFFICIAL RECORDS.
PARCEL 4D:
NORTHEAST STAIRWAY EASEMENT
A NON-EXCLUSIVE STAIRWAY AND WALKWAY EASEMENT FOR RETAINING WALLS, DRAINAGE AND
PEDESTRIAN EGRESS, FOR THE PURPOSE OF MEETING THE REQUIREMENTS OF ALL APPLICABLE
CODES, FROM STAIR NO. 6 ON XXX 000-XXXX XXXXX XX XXX XXXXX 0X IMPROVEMENTS
WITHIN THAT PORTION OF XXX 0 XX XXXXX XX. 00000, IN THE CITY OF LOS ANGELES,
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 913
PAGES 39 THROUGH 45 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, AND A PORTION OF GENERAL XXXXXXXX KOSCIUSZKD WAY AS VACATED PER
CITY OF LOS ANGELES RESOLUTION TO VACATE NO. 82-01653 RECORDED SEPTEMBER 16,
1982 AS DOCUMENT NO. 82-943159 IN OFFICIAL
Page 5 of 18
RECORDS OF SAID COUNTY AND AS DELINEATED ON STREET VACATION MAPS ON SHEETS 6 AND
7 OF 7 IN VOLUME 23, PAGE 68, SAID PORTIONS LYING ABOVE AN ELEVATION OF 335.00
FEET, SAID ELEVATION IS BASED ON NATIONAL GEODETIC VERTICAL DATUM OF 1929 PER
ORDINANCE NO. 150,763 OF THE CITY OF LOS ANGELES AS OBTAINED FROM CITY OF LOS
ANGELES BENCHMARK NO. 12-06750, DESCRIBED AS A CUT SPIKE IN XXXXX XXXX XX 0XX
XXXXXX, 21.6 FEET WEST OF OLIVE STREET, AT THE WEST END OF A CATCH BASIN,
ELEVATION - 273.999 FEET (1970 ADJUSTMENT), SAID PORTIONS DESCRIBED AS A WHOLE
AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF A LINE PARALLEL WITH AND DISTANT NORTHEASTERLY
20.00 FEET, MEASURED AT RIGHT ANGLES, FROM THE TANGENT PORTION OF THE
NORTHEASTERLY LINE OF SAID XXX 0 XX XXXXX XX. 00000, WITH A LINE PARALLEL WITH
AND DISTANT SOUTHEASTERLY 178.54 FEET, MEASURED AT RIGHT ANGLES, FROM THE
NORTHEASTERLY PROLONGATION OF THE NORTHWESTERLY LINE OF XXX 0 XX XXXX XXXXX XX.
00000, SAID NORTHWESTERLY LINE SHOWN THEREON AS HAVING A BEARING OF NORTH 37
DEGREES 50 MINUTES 12 SECONDS EAST (NORTH 37 DEGREES 50 MINUTES 21 SECONDS EAST
FOR THE PURPOSE OF THIS DESCRIPTION); THENCE ALONG LAST SAID PARALLEL LINE SOUTH
37 DEGREES 50 MINUTES 21 SECONDS WEST 80.00 FEET; THENCE SOUTH 52 DEGREES 09
MINUTES 39 SECONDS EAST 15.00 FEET; THENCE NORTH 37 DEGREES 50 MINUTES 21
SECONDS EAST 33.00 FEET; THENCE SOUTH 52 DEGREES 09 MINUTES 39 SECONDS EAST 6.00
FEET; THENCE NORTH 37 DEGREES 50 MINUTES 21 SECONDS EAST 47.03 FEET TO SAID LINE
MENTIONED HEREINBEFORE AS BEING PARALLEL WITH AND DISTANT NORTHEASTERLY 20.00
FEET FROM THE NORTHEASTERLY LINE OF XXX 0, XXXXXX XXXXX XXXX XXXXXXXX XXXX XXXXX
00 DEGREES 13 MINUTES 52 SECONDS WEST 21.00 FEET TO THE POINT OF BEGINNING.
PARCEL 4E:
NORTHEAST STAIRWAY EASEMENT
A NON-EXCLUSIVE TEMPORARY STAIRWAY EASEMENT TO PROVIDE PEDESTRIAN INGRESS AND
EGRESS FROM THE 000-XXXX XXXXX XXXXX XX XXX XXXXX 0X IMPROVEMENTS AND AN EXIT
ROUTE FROM THE 000-XXXX XXXXX XXXXX XX XXX XXXXX 0X IMPROVEMENTS, WITHIN THAT
PORTION OF XXX 0 XX XXXXX XX. 00000, IN THE CITY OF LOS ANGELES, COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 912 PAGES 39 THROUGH
45 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AND A
PORTION OF GENERAL XXXXXXXX XXXXXXXXXX WAY AS VACATED PER CITY OF LOS ANGELES
RESOLUTION TO VACATE NO. 82-01653 RECORDED SEPTEMBER 16, 1982 AS DOCUMENT NO.
82-943159 IN OFFICIAL RECORDS OF SAID COUNTY AND AS DELINEATED ON STREET
VACATION MAPS ON SHEETS 6 AND 7 OF 7 IN VOLUME 23, PAGE 68, SAID PORTIONS LYING
ABOVE AN ELEVATION OF 335.00 FEET, SAID ELEVATION IS BASED ON NATIONAL GEODETIC
VERTICAL DATUM OF 1929 PER ORDINANCE NO. 150,763 OF THE CITY OF LOS ANGELES AS
OBTAINED FROM CITY OF LOS ANGELES BENCHMARK NO. 12-06750, DESCRIBED AS A
CUTSPIKE IN XXXXX XXXX XX 0XX XXXXXX, 21.6 FEET WEST OF OLIVE STREET, AT THE
WEST END OF A CATCH BASIN, ELEVATION - 273.999 FEET (1970 ADJUSTMENT), SAID
PORTIONS DESCRIBED AS A WHOLE AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF A LINE PARALLEL WITH AND DISTANT NORTHEASTERLY
20.00 FEET, MEASURED AT RIGHT ANGLES, FROM THE TANGENT PORTION OF THE
NORTHEASTERLY LINE OF SAID XXX 0 XX XXXXX XX. 00000, WITH A LINE PARALLEL WITH
AND DISTANT SOUTHEASTERLY 178.54 FEET, MEASURED AT RIGHT ANGLES, FROM THE
NORTHEASTERLY PROLONGATION OF THE NORTHWESTERLY LINE OF XXX 0 XX XXXX XXXXX XX.
00000, SAID NORTHWESTERLY LINE SHOWN THEREON AS HAVING A BEARING OF NORTH 37
DEGREES 50 MINUTES 12 SECONDS EAST (NORTH 37 DEGREES 50 MINUTES 21 SECONDS EAST
FOR THE PURPOSE OF THIS DESCRIPTION); THENCE ALONG LAST SAID PARALLEL LINE SOUTH
37 DEGREES 50 MINUTES 21 SECONDS WEST 80.00 FEET; THENCE SOUTH 52 DEGREES 09
MINUTES 39 SECONDS EAST 15.00 FEET; THENCE NORTH 37 DEGREES 50 MINUTES 21
SECONDS EAST 33.00 FEET; THENCE SOUTH 52 DEGREES 09 MINUTES 39 SECONDS EAST 6.00
FEET; THENCE NORTH 37 DEGREES 50 MINUTES 21 SECONDS EAST 47.03 FEET
Page 6 of 18
TO SAID LINE MENTIONED HEREINBEFORE AS BEING PARALLEL WITH AND DISTANT
NORTHEASTERLY 20.00 FEET FROM THE NORTHEASTERLY LINE OF XXX 0, XXXXXX XXXXX XXXX
XXXXXXXX XXXX XXXXX 00 DEGREES 13 MINUTES 52 SECONDS WEST 21.00 FEET TO THE
POINT OF BEGINNING.
PARCEL 4F:
FOOTING EASEMENT
AN EASEMENT FOR FOOTINGS FOR PHASE LA IMPROVEMENTS WITHIN THOSE PORTIONS OF XXXX
0 XXX 0 XX XXXXX XX. 00000, XX THE CITY OF LOS ANGELES, AN EASEMENT FOR FOOTINGS
FOR PHASE 1A IMPROVEMENTS WITHIN COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS
PER MAP RECORDED IN BOOK 912 PAGES 39 THROUGH 45 INCLUSIVE OF MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AND PORTIONS OF GENERAL XXXXXXXX
XXXXXXXXXX WAY AND 3RD PLACE AS SHOWN AND DEDICATED ON THE MAP OF SAID TRACT NO.
30780, SAID PORTIONS VACATED PER CITY OF LOS ANGELES RESOLUTION TO VACATE NO.
82-01653 RECORDED SEPTEMBER 16, 1982 AS DOCUMENT NO. 82-943159 IN OFFICIAL
RECORDS OF SAID COUNTY AND AS DELINEATED OF STREET VACATION MAPS ON SHEETS 3, 6
AND 7 OF 7 IN VOLUME 23, PAGE 00, XXX XXXXXXXX XX 0XX XXXXXX AS SHOWN ON THE MAP
OF THE XXXXXXX TRACT RECORDED IN BOOK 1 PAGE 402 OF MISCELLANEOUS RECORDS OF
SAID COUNTY SAID PORTIONS LYING BETWEEN UPPER AND LOWER ELEVATION LIMITS AS
HEREINAFTER DESCRIBED, SAID ELEVATIONS ARE BASED ON NATIONAL GEODETIC VERTICAL
DATUM OF 1929 PER ORDINANCE NO. 150,763 OF THE CITY OF LOS ANGELES AS OBTAINED
FROM CITY OF LOS ANGELES BENCHMARK NO. 12-06750, DESCRIBED AS A CUT SPIKE IN
XXXXX XXXX XX 0XX XXXXXX, 21.6 FEET WEST OF OLIVE STREET, AT THE WEST END OF A
CATCH BASIN, ELEVATION - 273.999 FEET (1970 ADJUSTMENT), SAID PORTIONS DESCRIBED
AS FOLLOWS:
PARCEL 4FA:
BEGINNING AT THE INTERSECTION OF A LINE PARALLEL WITH AND DISTANT SOUTHWESTERLY
18.70 FEET, MEASURED AT RIGHT ANGLES, FROM THE TANGENT PORTION OF THE
NORTHWESTERLY PROLONGATION OF THE SOUTHWESTERLY LINE OF SAID XXX 0 XX XXXXX XX.
00000, WITH THE SOUTHWESTERLY PROLONGATION OF THE NORTHWESTERLY LINE OF SAID XXX
0 XX XXXXX XX. 00000, SAID NORTHEASTERLY LINE SHOWN THEREON AS HAVING A BEARING
OF NORTH 37 DEGREES 50 MINUTES 12 SECONDS EAST (NORTH 37 DEGREES 50 MINUTES 21
SECONDS EAST FOR THE PURPOSE OF THIS DESCRIPTION); THENCE ALONG SAID PARALLEL
LINE SOUTH 52 DEGREES 09 MINUTES 39 SECONDS EAST 176.00 FEET TO A LINE PARALLEL
WITH AND DISTANT SOUTHEASTERLY 176.00 FEET MEASURED AT RIGHT ANGLES FROM SAID
NORTHWESTERLY LINE OF LOT 3 AND ITS SOUTHWESTERLY PROLONGATION SHOWN HEREINABOVE
AS HAVING A BEARING OF SOUTH 37 DEGREES 50 MINUTES 21 SECONDS WEST; THENCE ALONG
LAST SAID PARALLEL LINE NORTH 37 DEGREES 50 MINUTES 21 SECONDS EAST 162.29 FEET;
THENCE AT RIGHT ANGLES SOUTH 52 DEGREES 09 MINUTES 39 SECONDS EAST 2.54 FEET TO
A LINE PARALLEL WITH AND DISTANT SOUTHEASTERLY 178.54 FEET MEASURED AT RIGHT
ANGLES FROM SAID NORTHWESTERLY LINE OF LOT 3 SHOWN HEREINABOVE AS HAVING A
BEARING OF SOUTH 37 DEGREES 50 MINUTES 21 SECONDS WEST; THENCE ALONG LAST SAID
PARALLEL LINE NORTH 37 DEGREES 50 MINUTES 21 SECONDS EAST 133.01 FEET TO A POINT
ON THE XXXXXXXXXXXXX XXXX XX 0XX XXXXXX TUNNEL EASEMENT, 60 FEET WIDE, AS SHOWN
ON SAID TRACT NO. 30780, SAID POINT HEREINAFTER REFERRED TO AS POINT "A"; THENCE
ALONG SAID SOUTHWESTERLY LINE SOUTH 52 DEGREES 18 MINUTES 43 SECONDS EAST 5.00
FEET; THENCE SOUTH 37 DEGREES 50 MINUTES 21 SECONDS WEST 138.02 FEET; THENCE
NORTH 52 DEGREES 09 MINUTES 39 SECONDS WEST 2.54 FEET; THENCE SOUTH 37 DEGREES
50 MINUTES 21 SECONDS WEST 162.29 FEET TO A LINE PARALLEL WITH AND DISTANT
SOUTHWESTERLY 23.70 FEET, MEASURED AT RIGHT ANGLES, FROM SAID SOUTHWESTERLY LINE
OF LOT 3; THENCE ALONG SAID PARALLEL LINE NORTH 52 DEGREES 09 MINUTES 39 SECONDS
WEST 181.00 FEET TO SAID SOUTHWESTERLY PROLONGATION OF THE NORTHWESTERLY LINE OF
LOT 3; THENCE NORTHEASTERLY ALONG SAID SOUTHWESTERLY PROLONGATION NORTH 37
DEGREES 50
Page 7 of 18
MINUTES 21 SECONDS EAST 5.00 FEET TO THE POINT OF BEGINNING.
SAID PARCEL "A" LYING ABOVE AN ELEVATION OF 290.00 FEET AND LYING BELOW AN
ELEVATION OF 320.00 FEET.
PARCEL 4FB:
BEGINNING AT HEREINBEFORE MENTIONED POINT "A"; THENCE ALONG THE NORTHEASTERLY
PROLONGATION OF THAT CERTAIN COURSE HEREINABOVE DESCRIBED IN PARCEL "A" AS
HAVING A BEARING AND DISTANCE OF "NORTH 37 DEGREES 50 MINUTES 21 SECONDS EAST
133.01 FEET", NORTH 37 DEGREES 50 MINUTES 21 SECONDS EAST 60.00 FEET TO A POINT
ON THE XXXXXXXXXXXXX XXXX XX XXXX 0XX XXXXXX TUNNEL EASEMENT, SAID POINT
HEREINAFTER REFERRED TO AS POINT "B"; THENCE ALONG SAID NORTHEASTERLY LINE SOUTH
52 DEGREES 18 MINUTES 43 SECONDS EAST 5.00 FEET; THENCE SOUTH 37 DEGREES 50
MINUTES 21 SECONDS WEST 60.00 FEET TO HEREINBEFORE MENTIONED XXXXXXXXXXXXX XXXX
XX 0XX XXXXXX TUNNEL EASEMENT; THENCE ALONG SAID SOUTHWESTERLY LINE NORTH 52
DEGREES 18 MINUTES 43 SECONDS WEST 5.00 FEET TO THE POINT OF BEGINNING.
SAID PARCEL "B" LYING ABOVE AN ELEVATION OF 290.00 FEET AND LYING BELOW AN
ELEVATION OF 301.00 FEET.
PARCEL 4FC:
BEGINNING AT HEREINBEFORE MENTIONED POINT "B"; THENCE ALONG THE NORTHEASTERLY
PROLONGATION OF THAT CERTAIN COURSE HEREINABOVE DESCRIBED IN PARCEL "A" AS
HAVING A BEARING AND DISTANCE OF "NORTH 37 DEGREES 50 MINUTES 21 SECONDS EAST
133.01 FEET", NORTH 37 DEGREES 50 MINUTES 21 SECONDS EAST 341.24 FEET TO A LINE
PARALLEL TO AND DISTANT SOUTHWESTERLY 3.00 FEET, MEASURED AT RIGHT ANGLES, FROM
THE SOUTHWESTERLY LINE OF GENERAL XXXXXXXX XXXXXXXXXX WAY, 60 FEET WIDE, AS
SHOWN ON SAID STREET VACATION MAPS ON SHEETS 6 AND 7 OF 7 IN VOLUME 23, PAGE 68;
THENCE ALONG SAID PARALLEL LINE NORTH 52 DEGREES 13 MINUTES 52 SECONDS WEST
169.58 FEET TO A POINT IN A CURVE CONCAVE TO THE SOUTH HAVING A RADIUS OF 20.00
FEET TO WHICH A RADIAL LINE BEARS NORTH 5 DEGREES 58 MINUTES 50 SECONDS EAST,
SAID CURVE BEING A COURSE IN SAID SOUTHWESTERLY LINE OF GENERAL XXXXXXXX
XXXXXXXXXX WAY; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 31
DEGREES 47 MINUTES 18 SECONDS, AN ARC DISTANCE OF 11.10 FEET; THENCE CONTINUING
ALONG SAID SOUTHWESTERLY LINE OF GENERAL XXXXXXXX XXXXXXXXXX WAY AND TANGENT TO
SAID CURVE SOUTH 52 DEGREES 13 MINUTES 52 SECONDS EAST 161.05 FEET; THENCE SOUTH
37 DEGREES 50 MINUTES 21 SECONDS WEST 188.00 FEET; THENCE SOUTH 52 DEGREES 09
MINUTES 39 SECONDS EAST 3.00 FEET; THENCE SOUTH 37 DEGREES 50 MINUTES 21 SECONDS
WEST 156.23 FEET TO HEREINBEFORE MENTIONED XXXXXXXXXXXXX XXXX XX 0XX XXXXXX
TUNNEL EASEMENT; THENCE ALONG SAID NORTHEASTERLY LINE NORTH 52 DEGREES 18
MINUTES 43 SECONDS WEST 5.00 FEET TO THE POINT OF BEGINNING.
SAID PARCEL "C" LYING ABOVE AN ELEVATION OF 290.00 FEET AND LYING BELOW AN
ELEVATION OF 320.00 FEET.
PARCEL 4G:
NORTH DRIVEWAY EASEMENT
A NON-EXCLUSIVE DRIVEWAY EASEMENT FOR VEHICULAR INGRESS AND EGRESS WITHIN THAT
PORTION OF GENERAL XXXXXXXX XXXXXXXXXX WAY, AS SHOWN AND DEDICATED ON THE MAP OF
TRACT NO. 30780, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 912 PAGES 39 THROUGH 45 INCLUSIVE OF
MAPS, IN
Page 8 of 18
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, SAID PORTION VACATED PER CITY
OF LOS ANGELES RESOLUTION TO VACATE NO. 82-01653, RECORDED SEPTEMBER 16, 1982 AS
INSTRUMENT NO. 82-943159 IN OFFICIAL RECORDS OF SAID COUNTY, AND AS DELINEATED
ON STREET VACATION MAPS ON SHEETS 6 AND 7 OF 7 IN VOLUME 23, PAGE 68, SAID
PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE SOUTHWESTERLY LINE OF SAID GENERAL XXXXXXXX
XXXXXXXXXX WAY, 60 FEET WIDE, AS SHOWN ON SAID STREET VACATION MAPS, WITH A LINE
PARALLEL WITH AND DISTANT SOUTHEASTERLY 178.54 FEET, MEASURED AT RIGHT ANGLES,
FROM THE NORTHEASTERLY PROLONGATION OF THE NORTHWESTERLY LINE OF XXX 0 XX XXXX
XXXXX XX. 00000, SAID NORTHWESTERLY LINE SHOWN THEREON AS HAVING A BEARING OF
NORTH 37 DEGREES 50 MINUTES 12 SECONDS EAST (NORTH 37 DEGREES 50 MINUTES 21
SECONDS EAST FOR THE PURPOSE OF THIS DESCRIPTION); THENCE ALONG SAID PARALLEL
LINK SOUTH 37 DEGREES 50 MINUTES 21 SECONDS WEST 3.00 FEET TO A LINE PARALLEL
TO AND DISTANT SOUTHWESTERLY 3.00 FEET, MEASURED AT RIGHT ANGLES, FROM SAID
SOUTHWESTERLY LINE OF GENERAL XXXXXXXX XXXXXXXXXX WAY; THENCE ALONG LAST SAID
PARALLEL LINE NORTH 52 DEGREES 13 MINUTES 52 SECONDS WEST 46.50 FEET; THENCE
LEAVING SAID PARALLEL LINE NORTH 37 DEGREES 50 MINUTES 21 SECONDS EAST 3.00 FEET
TO SAID SOUTHWESTERLY LINE OF GENERAL XXXXXXXX XXXXXXXXXX WAY; THENCE ALONG SAID
SOUTHWESTERLY LINE SOUTH 52 DEGREES 13 MINUTES 52 SECONDS EAST 46.50 FEET TO THE
POINT OF BEGINNING.
PARCEL 4H:
EAST WALKWAY EASEMENT
A NON-EXCLUSIVE EASEMENT (1) TO ERECT, MAINTAIN AND USE A PLAZA AND GUARDRAILS,
(2) TO ERECT, MAINTAIN AND USE WALKWAYS FOR PEDESTRIAN INGRESS AND EGRESS, (3)
FOR THE PURPOSE OF MEETING THE REQUIREMENTS OF ALL CODES APPLICABLE TO THE
IMPROVEMENTS LOCATED ON PHASE 1A, (4) FOR FOOTINGS, PILES AND SUPPORT FOR
CONSTRUCTION PURPOSES, AND (5) FOR ANY PURPOSES RELATED TO THE ABOVE. SUCH
EASEMENT SHALL BE LOCATED ON THOSE PORTIONS OF XXXX 0 XXX 0 XX XXXXX XX. 00000,
XX THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER
MAP RECORDED IN BOOK 912 PAGES 39 THROUGH 45 INCLUSIVE OF MAPS, IN THE OFFICE OF
THE COUNTY RECORDER OF SAID COUNTY, AND PORTIONS OF GENERAL XXXXXXXX XXXXXXXXXX
WAY AND 3RD PLACE AS SHOWN AND DEDICATED ON THE MAP OF SAID TRACT NO. 30780,
SAID PORTIONS VACATED PER CITY OF LOS ANGELES RESOLUTION TO VACATE NO. 82- 01653
RECORDED SEPTEMBER 16, 1982 AS DOCUMENT NO. 82-943159 IN OFFICIAL RECORDS OF
SAID COUNTY AND AS DELINEATED ON STREET VACATION MAPS ON SHEETS 3, 6, AND 7 OF 7
IN VOLUME 23 PAGE 68, SAID PORTIONS DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF A LINE PARALLEL WITH AND DISTANT SOUTHWESTERLY
18.70 FEET, MEASURED AT RIGHT ANGLES, FROM THE NORTHWESTERLY PROLONGATION OF THE
SOUTHWESTERLY LINE OF SAID XXX 0 XX XXXXX XX. 00000, WITH THE SOUTHWESTERLY
PROLONGATION OF THE NORTHWESTERLY LINE OF SAID XXX 0 XX XXXXX XX. 00000, SAID
NORTHWESTERLY LINE SHOWN THEREON AS HAVING A BEARING OF NORTH 37 DEGREES 50
MINUTES 12 SECONDS EAST (NORTH 37 DEGREES 50 MINUTES 21 SECONDS EAST FOR THE
PURPOSE OF THIS DESCRIPTION); THENCE ALONG SAID PARALLEL LINE SOUTH 52 DEGREES
09 MINUTES 39 SECONDS EAST 176.00 FEET TO A LINE PARALLEL WITH AND DISTANT
SOUTHEASTERLY 176.00 FEET, MEASURED AT RIGHT ANGLES, FROM SAID NORTHWESTERLY
LINE OF XXX 0 XXX XXX XXXXXXXXXXXXX XXXXXXXXXXXX, XXXX XXXXX BEING THE TRUE
POINT OF BEGINNING; THENCE ALONG LAST SAID PARALLEL LINK NORTH 37 DEGREES 50
MINUTES 21 SECONDS EAST 162.29 FEET; THENCE AT RIGHT ANGLES SOUTH 52 DEGREES 09
MINUTES 39 SECONDS EAST 2.54 FEET TO A LINE PARALLEL WITH AND DISTANT
SOUTHEASTERLY 178.54 FEET, MEASURED AT RIGHT ANGLES, FROM SAID NORTHWESTERLY
LINE OF LOT 3 AND ITS NORTHEASTERLY PROLONGATION; THENCE ALONG LAST
Page 9 of 18
SAID PARALLEL LINE NORTH 37 DEGREES 50 MINUTES 21 SECONDS EAST 534.25 FEET TO A
LINE PARALLEL WITH AND DISTANT SOUTHWESTERLY 3.00 FEET, MEASURED AT RIGHT
ANGLES, FROM THE SOUTHWESTERLY LINE OF GENERAL XXXXXXXX XXXXXXXXXX WAY, 60 FEET
WIDE, AS SHOWN ON SAID STREET VACATION MAPS ON SHEETS 6 AND 7 OF 7 IN VOLUME 23,
PAGE 68; THENCE ALONG SAID PARALLEL LINE SOUTH 52 DEGREES 13 MINUTES 52 SECONDS
EAST 2.00 FEET TO A LINE PARALLEL WITH AND DISTANT SOUTHEASTERLY 180.54 FEET,
MEASURED AT RIGHT ANGLES FROM SAID NORTHWESTERLY LINE OF LOT 3 AND ITS
NORTHEASTERLY PROLONGATION THEREOF; THENCE ALONG LAST SAID PARALLEL LINE SOUTH
37 DEGREES 50 MINUTES 21 SECONDS WEST 696.54 FEET TO A LINE PARALLEL WITH AND
DISTANT SOUTHWESTERLY 18.70 FEET, MEASURED AT RIGHT ANGLES FROM THE
SOUTHWESTERLY LINE OF SAID LOT 3 AND ITS SOUTHEASTERLY PROLONGATION THEREOF;
THENCE ALONG LAST SAID PARALLEL LINE NORTH 52 DEGREES 09 MINUTES 39 SECONDS WEST
4.54 FEET TO THE TRUE POINT OF BEGINNING.
ALSO EXCEPT THEREFROM ALL OF THE ABOVE DESCRIBED LAND, ALL OIL, GAS AND OTHER
MINERAL SUBSTANCES, TOGETHER WITH THE RIGHT TO EXTRACT SUCH SUBSTANCES, PROVIDED
THAT THE SURFACE OPENING OF A WELL, HOLE, SHAFT OR OTHER MEANS OF REACHING OR
MOVING SUCH SUBSTANCES SHALL NOT BE LOCATED WITHIN THE BUNKER HILL URBAN RENEWAL
PROJECT AREAS, AS RECORDED AUGUST 7, 1959 AS INSTRUMENT NO. 2893, IN BOOK M-335
PAGE 106, OFFICIAL RECORDS, AND SHALL NOT PENETRATE ANY PART OR PORTION OF SAID
PROJECT AREA WITHIN 500 FEET OF THE SURFACE THEREOF, AS RESERVED IN VARIOUS
DEEDS OF RECORD, AMONG THEM BEING THE DEED RECORDED MAY 20, 1966 AS INSTRUMENT
NO. 3924 IN BOOK D-3311 PAGE 794, OFFICIAL RECORDS.
PART B
PARCEL 1:
THAT PORTION OF GRAND AVENUE, 110 FEET WIDE, AS SHOWN AND DEDICATED ON THE MAP
OF TRACT NO. 28761, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 926 PAGES 5 THROUGH 8 INCLUSIVE OF MAPS,
IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AND AS SHOWN ON THE ALTA
SURVEY (AS HEREINAFTER DEFINED) DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST NORTHERLY XXXXXX XX XXX 0 XX XXXX XXXXX 00000; THENCE
ALONG THE NORTHWEST LINE OF LOT 2 AND ITS SOUTHWESTERLY PROLONGATION SOUTH 37
DEGREES 45 MINUTES 33 SECONDS WEST 266.94 FEET TO THE SOUTHWEST LINE OF SAID
TRACT; THENCE ALONG SAID SOUTHWEST LINE NORTH 52 DEGREES 14 MINUTES 27 SECONDS
WEST 15.00 FEET TO THE MOST WESTERLY CORNER OF SAID TRACT; THENCE ALONG THE
BOUNDARY OF SAID TRACT AS FOLLOWS: NORTH 37 DEGREES 45 MINUTES 33 SECONDS EAST
236.95 FEET AND SOUTH 52 DEGREES 11 MINUTES 43 SECONDS EAST 8.00 FEET AND NORTH
37 DEGREES 45 MINUTES 33 SECONDS EAST 30.00 FEET TO THE NORTHWEST PROLONGATION
OF THE NORTHEAST LINE OF SAID LOT 2; THENCE ALONG SAID PROLONGATION SOUTH 52
DEGREES 11 MINUTES 43 SECONDS EAST 7.00 FEET TO THE POINT OF BEGINNING.
EXCEPT THEREFROM ANY PORTION WITHIN THE LINKS OF GENERAL XXXXXXXX XXXXXXXXXX WAY
AS SHOWN ON SAID MAP AND AS SHOWN ON THE ALTA SURVEY (AS HEREINAFTER DEFINED).
ALSO EXCEPT THEREFROM THAT PORTION OF SECOND STREET, BELOW THE SURFACE OF SAID
LAND, WITHIN THE UNVACATED PORTION THEREOF AS SET OUT IN DOCUMENT RECORDED JUNE
4, 1979 AS INSTRUMENT NO. 79-602882 OF OFFICIAL RECORDS OF SAID COUNTY AS SHOWN
ON SHEET 3 OF SURVEY ENTITLED "SURVEY FOR BUNKER HILL ASSOCIATES" DATED MARCH
17, 1983, MADE BY XXXXXX & ASSOCIATES, SANTA MONICA, CALIFORNIA (SAID SURVEY
BEING HEREINAFTER CALLED "ALTA SURVEY").
Page 10 of 18
PARCEL 2:
THAT PORTION OF GRAND AVENUE, FORMERLY CHARITY STREET, 80 FEET WIDE, AS SHOWN ON
THE MAP OF BEAUDRY TRACT, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 1, PAGES 401 AND 402 OF
MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AND
AS SHOWN ON THE ALTA SURVEY, BOUNDED ON THE NORTHWEST BY THE CENTER LINE OF SAID
00 XXXX XXXXXX XXX XXXXXXX XX THE SOUTHWEST BY THE SOUTHWEST LINE AND ITS
NORTHWESTERLY PROLONGATION OF TRACT NO. 28761, AS PER MAP RECORDED IN BOOK 926
PAGES 5 THROUGH 8 INCLUSIVE Of MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, BOUNDED ON THE SOUTHEAST BY THE SOUTHEASTERLY LINE OF SAID GRAND
AVENUE AND ITS NORTHEASTERLY AND SOUTHWESTERLY PROLONGATIONS THEREOF AND BOUNDED
ON THE NORTHEAST BY XXX XXXXXX XXXX XX XXXXXX XXXXXX, 00 FEET WIDE, AS SHOWN ON
SAID MAP.
PARCEL 3:
THAT PORTION OF THE NORTHWEST HALF OF OLIVE STREET, 80 FEET WIDE AS SHOWN ON THE
MAP OF BEAUDRY TRACT, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE
OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 1 PAGES 401 AND 402 OF MISCELLANEOUS
RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY AND AS SHOWN ON THE
ALTA SURVEY, BOUNDED SOUTHEASTERLY BY THE NORTHWESTERLY PROLONGATION OF THE
TANGENT PORTION OF THE SOUTHWEST LINE OF XXX 0 XX XXXXX XX. 00000, AS PER MAP
RECORDED IN BOOK 897 PAGES 8 THROUGH 12 INCLUSIVE OF MAPS, RECORDS OF SAID
COUNTY AND BOUNDED NORTHEASTERLY BY A LINE PARALLEL WITH AND DISTANT
NORTHEASTERLY 420 FEET, MEASURED AT RIGHT ANGLES, FROM THE NORTHWESTERLY
PROLONGATION OF THE TANGENT PORTION OF THE SOUTHWEST LINE OF XXX 0 XX XXXX XXXXX
XX. 00000 AND BOUNDED NORTHWESTERLY BY THE NORTHWESTERLY LINE AND ITS
NORTHEASTERLY AND SOUTHWESTERLY PROLONGATIONS OF SAID OLIVE STREET AND BOUNDED
SOUTHEASTERLY BY THE CENTER LINE OF SAID OLIVE STREET AS SAID CENTER LINE IS
SHOWN ON THE MAP OF SAID TRACT NO. 30781.
EXCEPT THEREFROM THAT PORTION OF SAID LAND BELOW A PLANE WHICH LIES 17 FEET
ABOVE THE STREET LEVEL OF OLIVE STREET, AS RETAINED AND UNVACATED AS SAID
PORTION IS SET OUT IN CITY OF LOS ANGELES ORDINANCE NO. 150,763 AND AS
DELINEATED ON STREET VACATION MAPS ON SHEETS 4 AND 5 OF 7 IN VOLUME 23, PAGE 68
AND AS SHOWN ON SHEETS 5 AND 6 OF THE ALTA SURVEY.
PARCEL 3-A:
THAT PORTION OF THE NORTHWEST HALF OF OLIVE STREET, 80 FEET WIDE, AS SHOWN ON
THE MAP OF BEAUDRY TRACT, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 1 PAGES 401 AND 402 OF
MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AND
AS SHOWN ON THE ALTA SURVEY, AND AS SHOWN ON THE ALTA SURVEY, BOUNDED
SOUTHWESTERLY BY THE NORTHWESTERLY PROLONGATION OF THE TANGENT PORTION OF THE
XXXXXXXXX XXXX XX XXX 0 XX XXXXX 00000, AS PER MAP RECORDED IN BOOK 897 PAGES 8
THROUGH 12, INCLUSIVE OF MAPS, RECORDS OF SAID COUNTY AND BOUNDED NORTHEASTERLY
BY A LINE PARALLEL WITH AND DISTANT NORTHEASTERLY 420 FEET, MEASURED AT RIGHT
ANGLES, FROM THE NORTHWESTERLY PROLONGATION OF THE TANGENT PORTION OF THE
SOUTHWEST LINE OF XXX 0 XX XXXX XXXXX XX. 00000 AND BOUNDED NORTHWESTERLY BY THE
NORTHWESTERLY LINE AND ITS NORTHEASTERLY AND SOUTHWESTERLY PROLONGATIONS OF SAID
OLIVE STREET AND BOUNDED SOUTHEASTERLY BY THE CENTER LINE OF SAID OLIVE STREET
AS SAID CENTER LINE IS SHOWN ON THE MAP OF SAID TRACT NO. 30781.
EXCEPT THEREFROM THAT PORTION OF SAID LAND ABOVE AND BELOW THE SURFACE OF SAID
LAND WITHIN THE LINES OF OLIVE STREET, AS VACATED, AS SAID PORTIONS ARE SET OUT
IN THE
Page 11 of 18
CITY OF LOS ANGELES ORDINANCE NO. 150,763 AND AS DELINEATED ON STREET VACATION
MAPS ON SHEETS 4 AND 5 OF 7 IN VOLUME 23, PAGE 68 AS SHOWN ON SHEETS 5 AND 6 OF
THE ALTA SURVEY.
PARCEL 3-B:
THAT PORTION OF THE NORTHWEST HALF OF OLIVE STREET, 8O FEET WIDE, AS SHOWN ON
THE MAP OF BEAUDRY TRACT, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 1 PAGES 401 AND 402 OF
MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY
BOUNDED SOUTHWESTERLY BY XXX XXXXXX XXXX XX 0XX XXXXXX AS SHOWN ON SAID MAP, AND
AS SHOWN ON THE ALTA SURVEY, AND BOUNDED NORTHEASTERLY BY THE NORTHWESTERLY
PROLONGATION OF THE TANGENT PORTIONS OF THE SOUTHWEST LINE OF XXX 0 XX XXXXX XX.
00000 AS PER MAP RECORDED IN BOOK 897, PAGES 8 THROUGH 12 INCLUSIVE OF MAPS,
RECORDS OF SAID COUNTY AND BOUNDED NORTHWESTERLY BY THE NORTHWESTERLY LINE AND
ITS SOUTHWESTERLY PROLONGATION OF SAID OLIVE STREET AND BOUNDED SOUTHEASTERLY BY
THE CENTER LINE OF SAID OLIVE STREET AS SAID CENTER LINE IS SHOWN ON THE MAP OF
SAID TRACT NO. 30781.
EXCEPT THEREFROM ANY PORTION WITHIN THE LIMITS OF 4TH STREET AS SHOWN ON SAID
XXXXXXX TRACT AND ON SHEET 1 OF THE ALTA SURVEY.
PARCEL 4:
THAT PORTION OF THE NORTHWESTERLY 5 FEET OF OLIVE STREET, 90 FEET WIDE AS SHOWN
AND DEDICATED ON THE MAP OF TRACT NO. 28761, IN THE CITY OF LOS ANGELES, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 926 PAGES 5
THROUGH 8 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, AND AS SHOWN ON THE ALTA SURVEY, LYING SOUTHWESTERLY OF THE
SOUTHEASTERLY PROLONGATION OF THE NORTHEAST LINE OF XXX 0 XX XXXX XXXXX 00000.
PARCEL 5:
THAT PORTION OF THE NORTHWESTERLY 5 FEET OF OLIVE STREET 90 FEET WIDE, AS SHOWN
AND DEDICATED ON THE MAP OF TRACT NO. 30780, IN THE CITY OF LOS ANGELES, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 912 PAGES 39
THROUGH 45 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, AND AS SHOWN ON THE ALTA SURVEY, BOUNDED NORTHEASTERLY BY A LINE
PARALLEL WITH AND DISTANT NORTHEASTERLY 420 FEET, MEASURED AT RIGHT ANGLES, FROM
THE NORTHWESTERLY PROLONGATION OF THE TANGENT PORTIONS OF THE SOUTHWEST LINE OF
XXX 0 XX XXXXX XX. 00000 AS PER MAP RECORDED IN BOOK 897 PAGES 8 THROUGH 12
INCLUSIVE OF MAPS, RECORDS OF SAID COUNTY AND BOUNDED SOUTHWESTERLY BY THE
NORTHEASTERLY LINE OF THAT CERTAIN FUTURE STREET SHOWN ON SAID MAP AS HAVING A
BEARING AND DISTANCE OF NORTH 52 DEGREES 21 MINUTES 41 SECONDS WEST 5.00 FEET.
EXCEPT THEREFROM THAT PORTION OF SAID LAND AS RETAINED AND UNVACATED AS SAID
PORTION IS SET OUT IN THE CITY OF LOS ANGELES ORDINANCE NO. 150,763 AND AS
DELINEATED ON STREET VACATION MAPS ON SHEETS 4 AND 5 AND 7 IN VOLUME 23, PAGE 68
AND AS SHOWN ON SHEETS 5 AND 6 OF THE ALTA SURVEY.
PARCEL 5-A:
THAT PORTION OF THE NORTHWESTERLY 5 FEET OF OLIVE STREET 90 FEET WIDE, AS SHOWN
AND DEDICATED ON THE MAP OF TRACT NO. 30780, IN THE CITY OF LOS ANGELES, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 912 PAGES 39
THROUGH 45
Page 12 of 18
INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AND AS
SHOWN ON THE ALTA SURVEY, BOUNDED NORTHEASTERLY BY A LINE PARALLEL WITH AND
DISTANT NORTHEASTERLY 420 FEET, MEASURED AT RIGHT ANGLES, FROM THE NORTHWESTERLY
PROLONGATION OF THE TANGENT PORTIONS OF THE SOUTHWEST LINE OF XXX 0 XX XXXXX XX.
00000 AS PER MAP RECORDED IN BOOK 897 PAGES 8 THROUGH 12 INCLUSIVE OF MAPS,
RECORDS OF SAID COUNTY AND BOUNDED SOUTHWESTERLY BY THE NORTHEASTERLY LINE OF
THAT CERTAIN FUTURE STREET SHOWN ON SAID MAP AS HAVING BEARING AND DISTANCE OF
NORTH 52 DEGREES 21 MINUTES 41 SECONDS WEST 5.00 FEET.
EXCEPT THEREFROM THAT PORTION OF SAID LAND AS VACATED AS SAID PORTIONS ARE SET
OUT IN THE CITY OF LOS ANGELES ORDINANCE NO. 150,763 AND AS DELINEATED ON STREET
VACATION MAPS ON SHEETS 4 AND 5 OF 7 IN VOLUME 23, PAGE 68 AND AS SHOWN ON
SHEETS 5 AND 6 OF THE ALTA SURVEY.
PARCEL 6:
THAT PORTION OF THE NORTHWEST HALF OF OLIVE STREET, 80 FEET WIDE, AS SHOWN ON
THE MAP OF BEAUDRY TRACT, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 1 PAGES 401 AND 402 OF
MISCELLANEOUS RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AND
AS SHOWN ON THE ALTA SURVEY, BOUNDED SOUTHEASTERLY BY THE CENTER OF SAID OLIVE
STREET AND BOUNDED SOUTHWESTERLY BY THE SOUTHEASTERLY PROLONGATION OF THE
SOUTHWEST LINK OF TRACT NO. 28761, AS PER MAP RECORDED IN BOOK 926 PAGES 5
THROUGH 8 INCLUSIVE OF MAPS, RECORDS OF SAID COUNTY AND BOUNDED NORTHWESTERLY BY
THE NORTHWESTERLY LINE OF SAID OLIVE STREET AND ITS NORTHEASTERLY AND
SOUTHWESTERLY PROLONGATION AND BOUNDED NORTHEASTERLY BY XXX XXXXXX XXXX XX 0XX
XXXXXX AS SHOWN ON THE MAP OF SAID TRACT 28761.
EXCEPT THEREFROM ANY PORTION WITHIN THE LINES OF SECOND STREET AS SHOWN ON THE
ALTA SURVEY.
PARCEL 7:
THAT PORTION OF THE NORTHEAST HALF OF 4TH STREET, AS SHOWN ON THE MAP OF BEAUDRY
TRACT, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA,
AS PER MAP RECORDED IN BOOK 1 PAGES 401 AND 402 OF MISCELLANEOUS RECORDS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY AND AS SHOWN ON THE ALTA SURVEY,
BOUNDED SOUTHEASTERLY BY THE CENTER LINE OF OLIVE STREET AS SHOWN ON SAID MAP
AND BOUNDED NORTHWESTERLY BY THE SOUTHWESTERLY PROLONGATION OF THAT CERTAIN
COURSE IN THE SOUTHWEST LINE OF XXX 0 XX XXXXX XX. 00000 AS PER MAP RECORDED IN
BOOK 912 PAGES 39 THROUGH 45, INCLUSIVE OF MAPS OF SAID COUNTY, SAID CERTAIN
COURSE SHOWN ON SAID MAP AS HAVING A BEARING AND DISTANCE OF NORTH 37 DEGREES 49
MINUTES 24 SECONDS EAST, 18.14 FEET AND BOUNDED ON THE NORTHEAST BY THE
NORTHEAST LINE OF SAID 0XX XXXXXX AND ITS SOUTHEASTERLY PROLONGATION AND BOUNDED
ON THE SOUTHWEST BY THE CENTER LINE OF 4TH STREET AS SHOWN ON SAID TRACT NO.
30780.
PARCEL 8:
THAT PORTION OF SECOND STREET, 60 FEET WIDE, AS SHOWN ON THE MAP OF BEAUDRY
TRACT, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA,
AS PER MAP RECORDED IN BOOK 1 PAGES 401 AND 402 OF MISCELLANEOUS RECORDS IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AND AS SHOWN ON THE ALTA SURVEY,
BOUNDED ON THE NORTHEAST BY THE CENTER LINE OF SAID SECOND STREET AND BOUNDED ON
THE SOUTHEAST BY THE NORTHWESTERLY LINE OF THE SOUTHEASTERLY 7 FEET OF GRAND
AVENUE AS SHOWN AND DEDICATED ON THE MAP OF TRACT NO. 28761 AS PER MAP RECORDED
IN BOOK 726 PAGES 5
Page 13 of 18
THROUGH 8 INCLUSIVE OF MAPS, RECORDS OF SAID COUNTY AND BOUNDED ON THE SOUTHWEST
BY THE SOUTHWEST LINE OF SAID SECOND STREET, AND BOUNDED ON THE NORTHWEST BY THE
NORTHEASTERLY PROLONGATION OF THE NORTHWEST LINE OF LOT 19 IN BLOCK 2 OF SAID
XXXXXXX TRACT.
PARCEL 9:
THAT PORTION OF SECOND STREET, 60 FEET WIDE, AS SHOWN ON THE MAP OF BEAUDRY
TRACT, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA,
AS PER MAP RECORDED IN BOOK 1 PAGES 401 AND 402 OF MISCELLANEOUS RECORDS IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AND AS SHOWN ON THE ALTA SURVEY,
BOUNDED ON THE NORTHEAST BY THE CENTER LINK OF SAID SECOND STREET AND BOUNDED ON
THE SOUTHEAST BY THE CENTER LINE OF OLIVES STREET AS SHOWN ON SAID MAP AND
BOUNDED ON THE SOUTHWEST BY THE SOUTHEASTERLY PROLONGATION OF THE NORTHEAST LINE
OF XXX 0 XX XXXXX 0 XX XXXX XXXXXXX XXXXX AND BOUNDED ON THE NORTHWEST BY THE
NORTHEAST PROLONGATION OF THE SOUTHEAST LINE OF SAID LOT 9.
PARCEL 10:
ALL OF GENERAL XXXXXXXX XXXXXXXXXX WAY AS SHOWN AND DEDICATED ON THE MAP OF
TRACT NO. 30780, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 912, PAGES 39 THROUGH 45 INCLUSIVE OF
MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY AND AS SHOWN ON THE
ALTA SURVEY.
EXCEPT THEREFROM THAT PORTION OF SAID LAND ABOVE AND BELOW THE SURFACE OF SAID
LAND WITHIN THE LINES OF GENERAL XXXXXXXX XXXXXXXXXX WAY AS RETAINED AND
UNVACATED AS SAID PORTIONS ARE SET OUT IN THE CITY OF LOS ANGELES ORDINANCE NO.
150,763 AND AS DELINEATED ON STREET VACATION MAPS, ON SHEETS 6 OF 7 IN VOLUME
23, PAGE 68 AND AS SHOWN ON SHEETS 6 AND 7 OF THE ALTA SURVEY.
PARCEL 10-A:
ALL OF GENERAL KOSCIUSZKO WAY AS SHOWN AND DEDICATED ON THE MAP OF TRACT NO.
30780, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA,
AS PER MAP RECORDED IN BOOK 912 PAGES 39 THROUGH 45 INCLUSIVE OF MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY AND AS SHOWN ON THE ALTA SURVEY.
EXCEPT THEREFROM THAT PORTION OF SAID LAND ABOVE AND BELOW THE SURFACE OF SAID
LAND WITHIN THE LINKS OF GENERAL XXXXXXXX XXXXXXXXXX WAY AS VACATED, AS SAID
PORTIONS ARE SET OUT IN CITY OF LOS ANGELES ORDINANCE NO. 150,763 AND AS
DELINEATED ON STREET VACATION MAPS ON SHEETS 6 AND 7 OF 7 IN VOLUME 23, PAGE 68
AND AS SHOWN ON SHEETS 6 AND 7 OF THE ALTA SURVEY.
PARCEL 11:
ALL OF GENERAL XXXXXXXX XXXXXXXXXX WAY AS SHOWN AND DEDICATED ON THE MAP OF
TRACT 28761, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 926 PAGES 5 THROUGH 8 INCLUSIVE OF MAPS,
IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY AND AS SHOWN ON THE ALTA
SURVEY.
EXCEPT THEREFROM THAT PORTION OF SAID LAND ABOVE AND BELOW THE SURFACE OF SAID
LAND WITHIN THE LINES OF GENERAL XXXXXXXX XXXXXXXXXX WAY AS RETAINED AND
UNVACATED AS SAID PORTIONS ARE SET OUT IN CITY OF LOS ANGELES ORDINANCE NO.
150,763 AND AS DELINEATED ON STREET VACATION MAPS ON SHEETS 6 AND 7 OF 7 IN
VOLUME 23, PAGE 68 AND AS SHOWN ON
Page 14 of 18
SHEETS 6 AND 7 OF THE ALTA SURVEY.
PARCEL 11-A:
ALL OF GENERAL XXXXXXXX XXXXXXXXXX WAY AS SHOWN AND DEDICATED ON THE MAP OF
TRACT NO. 28761, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 926 PAGES 5 THROUGH 8 INCLUSIVE OF MAPS,
IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY AND AS SHOWN ON THE ALTA
SURVEY.
EXCEPT THEREFROM THAT PORTION OF SAID LAND ABOVE AND BELOW THE SURFACE OF SAID
LAND WITHIN THE LINES OF GENERAL XXXXXXXX XXXXXXXXXX WAY AS VACATED, AS SAID
PORTIONS ARE SET OUT IN CITY OF LOS ANGELES ORDINANCE NO. 150,763 AND AS
DELINEATED ON STREET VACATION MAPS, ON SHEETS 6 AND 7 OF 7 IN VOLUME 23, PAGE 68
AND AS SHOWN ON SHEETS 6 AND 7 OF THE ALTA SURVEY.
PARCEL 12:
ALL OF 3RD PLACE AS SHOWN AND DEDICATED ON THE MAP OF TRACT NO. 30780, IN THE
CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP
RECORDED IN BOOK 912 PAGES 39 THROUGH 45 INCLUSIVE OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER AND AS SHOWN ON THE ALTA SURVEY, A PORTION OF SAID 3RD PLACE IS
NOW A PART OF TRACT NO. 30804, IN SAID CITY, AS PER MAP RECORDED IN BOOK 1070,
PAGES 31 THROUGH 38, INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY.
PARCEL 13:
XXX 0 XX XXXXX XX. 00000, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 897, PAGES 8 THROUGH 12
INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY AND AS
SHOWN ON THE ALTA SURVEY.
PARCEL 13-A:
THAT PORTION OF THE SOUTHEASTERLY 5 FEET OF OLIVE STREET, 85 FEET WIDE, AS SHOWN
AND DEDICATED ON THE MAP OF TRACT NO. 30781, IN THE CITY OF LOS ANGELES, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 897 PAGES 8
THROUGH 12 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, AND AS SHOWN ON THE ALTA SURVEY, BOUNDED ON THE NORTHEAST BY THE
NORTHWESTERLY PROLONGATION OF THE MOST NORTHEAST NORTHEASTERLY LINE OF XXX 0 XX
XXXXX XX. 00000 AS PER MAP RECORDED IN BOOK 897 PAGES 8 THROUGH 12 INCLUSIVE OF
MAPS, RECORDS OF SAID COUNTY AND BOUNDED ON THE SOUTHWEST BY THE NORTHWESTERLY
PROLONGATION OF THE TANGENT PORTIONS OF THE SOUTHWESTERLY LINE OF SAID LOT 5.
EXCEPT THEREFROM THAT PORTION OF SAID LAND AS RETAINED AND UNVACATED AS SAID
PORTION IS SET OUT IN THE CITY OF LOS ANGELES ORDINANCE NO. 150,763 AND AS
DELINEATED ON STREET VACATION MAPS ON SHEETS 4 AND 5 OF 7 IN VOLUME 23, PAGE 68
AND AS SHOWN ON SHEETS 5 AND 6 OF THE ALTA SURVEY.
PARCEL 13-B:
THAT PORTION OF THE SOUTHEASTERLY 5 FEET OF OLIVE STREET, 85 FEET WIDE, AS SHOWN
AND DEDICATED ON THE MAP OF TRACT NO. 30781, IN THE CITY OF LOS ANGELES, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 897 PAGES 8
THROUGH 12 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, AND AS SHOWN ON THE ALTA SURVEY, BOUNDED ON THE NORTHEAST BY THE
NORTHWESTERLY PROLONGATION OF THE
Page 15 of 18
MOST NORTHEAST NORTHEASTERLY LINE OF XXX 0 XX XXXXX XX. 00000, AS PER MAP
RECORDED IN BOOK 897, PAGES 8 THROUGH 12 INCLUSIVE OF MAPS, RECORDS OF SAID
COUNTY AND BOUNDED ON THE SOUTHWEST BY THE NORTHWESTERLY PROLONGATION OF THE
TANGENT PORTIONS OF THE SOUTHWESTERLY LINK OF SAID LOT 5.
EXCEPT THEREFROM THAT PORTION OF SAID LAND AS VACATED AS SAID PORTION IS SET OUT
IN THE CITY OF LOS ANGELES ORDINANCE NO. 150,763 AND AS DELINEATED ON STREET
VACATION MAPS ON SHEETS 4 AND 5 OF 7 IN VOLUME 23, PAGE 68 AND AS SHOWN ON
SHEETS 5 AND 6 OF THE ALTA SURVEY.
PARCEL 13-C:
THAT PORTION OF THE SOUTHEASTERLY HALF OF OLIVE STREET, 80 FEET WIDE, AS SHOWN
ON THE MAP OF BEAUDRY TRACT, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 1 PAGES 401 AND 402 OF
MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AND
AS SHOWN ON THE ALTA SURVEY, BOUNDED NORTHWESTERLY BY THE CENTER OF SAID OLIVE
STREET AND BOUNDED SOUTHEASTERLY BY THE SOUTHEASTERLY LINE OF SAID OLIVE STREET
AND ON THE NORTHEAST BY THE NORTHWESTERLY PROLONGATION OF THE MOST NORTHEAST
NORTHEASTERLY LINE OF XXX 0 XX XXXXX XX. 00000 AS PER MAP RECORDED IN BOOK 897,
PAGES 8 THROUGH 12 INCLUSIVE OF MAPS, RECORDS OF SAID COUNTY AND BOUNDED ON THE
SOUTHWEST BY THE NORTHWESTERLY PROLONGATION OF THE TANGENT PORTION OF THE
SOUTHWESTERLY LINE OF SAID LOT 5.
EXCEPT THEREFROM THAT PORTION OF SAID LAND AS RETAINED AND UNVACATED AS SAID
PORTION IS SET OUT IN THE CITY OF LOS ANGELES ORDINANCE NO. 150,763 AND AS
DELINEATED ON STREET VACATION MAPS ON SHEETS 4 AND 5 OF 7 IN VOLUME 23, PAGE 68
AND AS SHOWN ON SHEETS 5 AND 6 OF THE ALTA SURVEY.
PARCEL 13-D:
THAT PORTION OF THE SOUTHEASTERLY HALF OF OLIVE STREET, 80 FEET WIDE, AS SHOWN
ON THE MAP OF BEAUDRY TRACT, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 1 PAGES 401 AND 402 OF
MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AND
AS SHOWN ON THE ALTA SURVEY, BOUNDED NORTHWESTERLY BY THE CENTER OF SAID OLIVE
STREET AND ON THE NORTHEAST BY THE NORTHWESTERLY PROLONGATION OF THE MOST
NORTHEAST NORTHEASTERLY LINE OF XXX 0 XX XXXXX XX. 00000, AS PER MAP RECORDED IN
BOOK 897 PAGES 8 THROUGH 12 INCLUSIVE OF MAPS, RECORDS OF SAID COUNTY AND
BOUNDED ON THE SOUTHWEST BY THE NORTHWESTERLY PROLONGATION OF THE TANGENT
PORTION OF THE SOUTHWESTERLY LINE OF SAID LOT 5.
EXCEPT THEREFROM THAT PORTION OF SAID LAND AS VACATED AS SAID PORTION IS SET OUT
IN THE CITY OF LOS ANGELES ORDINANCE NO. 150,763 AND AS DELINEATED ON STREET
VACATION MAPS ON SHEETS 4 AND 5 OF 7 IN VOLUME 23, PAGE 68 AND AS SHOWN ON
SHEETS 5 AND 6 OF THE ALTA SURVEY.
PARCEL 14:
XXXX 0, 0 XXX 0 XX XXXXX XX. 00000, XX THE CITY OF LOS ANGELES, COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 912 PAGES 39 TO 45
INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY AND AS
SHOWN ON THE ALTA SURVEY.
EXCEPT THEREFROM THAT PORTION OF SAID LAND LYING WITHIN THE BOUNDARY LINES OF
TRACT NO. 30804, AS PER MAP RECORDED IN BOOK 1070 PAGES 31 THROUGH 38, INCLUSIVE
OF MAPS,
Page 16 of 18
IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 14-A:
THAT PORTION OF THIRD STREET AS SHOWN AND DEDICATED ON THE MAP OF BEAUDRY TRACT,
IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER
MAP RECORDED IN BOOK 1 PAGES 401 AND 403 OF MISCELLANEOUS RECORDS, IN THE OFFICE
OF THE COUNTY RECORDER OF SAID COUNTY, AS VACATED, AS SAID PORTION IS SET OUT IN
THE CITY OF LOS ANGELES RESOLUTION TO VACATE NO. 82-01653 RECORDED SEPTEMBER 16,
1982 AS INSTRUMENT NO. 82-943159 IN OFFICIAL RECORDS OF SAID COUNTY AND AS
DELINEATED ON STREET VACATION MAPS ON SHEETS 1 AND 2 OF 7 IN VOLUME 23, PAGE 68
AND AS SHOWN ON SHEET 4 OF THE ALTA SURVEY.
PARCEL 14-B:
THAT PORTION OF THIRD STREET AS SHOWN AND DEDICATED ON THE MAP OF BEAUDRY TRACT,
IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER
MAP RECORDED IN BOOK 1, PAGES 401 AND 402 OF MISCELLANEOUS RECORDS, IN THE
OFFICE OF TEE COUNTY RECORDER OF SAID COUNTY, AS RETAINED AND UNVACATED, AS SAID
PORTION IS SET OUT IN THE CITY OF LOS ANGELES RESOLUTION TO VACATE NO. 82-01653
RECORDED SEPTEMBER 16, 1982 AS INSTRUMENT NO. 82-943159 IN OFFICIAL RECORDS OF
SAID COUNTY AND AS DELINEATED ON STREET VACATION MAPS ON SHEETS 1 AND 2 OF 7 IN
VOLUME 23. PAGE 68 AND AS SHOWN ON SHEET 4 OF THE ALTA SURVEY.
PARCEL 15:
XXX 0 XX XXXXX XX. 00000, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 926 PAGES 5 THROUGH 8 INCLUSIVE
OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY AND AS SHOWN ON THE
ALTA SURVEY.
PARCEL 15-A:
THAT PORTION OF SECOND STREET AS SHOWN AND DEDICATED ON THE MAP OF BEAUDRY
TRACT, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA,
AS PER MAP RECORDED IN BOOK 1 PAGES 401 AND 402 OF MISCELLANEOUS RECORDS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AS RETAINED AND UNVACATED, AS
SAID PORTION IS SET OUT IN CITY OF LOS ANGELES RESOLUTION TO VACATE NO. 79-21591
RECORDED JUNE 4, 1979 AS INSTRUMENT NO. 79-602882, IN OFFICIAL RECORDS OF SAID
COUNTY AND AS DELINEATED ON STREET VACATION MAPS IN VOLUME 19, PAGE 95 AND AS
SHOWN ON SHEET 3 OF THAT ALTA SURVEY.
ALSO EXCEPT THEREFROM ALL OF THE ABOVE DESCRIBED LAND, ALL OIL, GAS AND OTHER
MINERAL SUBSTANCES, TOGETHER WITH THE RIGHT TO EXTRACT SUCH SUBSTANCES, PROVIDED
THAT THE SURFACE OPENING OF A WELL, HOLE, SHAFT OR OTHER MEANS OF REACHING OR
MOVING SUCH SUBSTANCES SHALL NOT BE LOCATED WITHIN THE BUNKER HILL URBAN RENEWAL
PROJECT AREAS, AS RECORDED AUGUST 7, 1959 AS INSTRUMENT NO. 2893 IN BOOK M-335
PAGE 106, OFFICIAL RECORDS, AND SHALL NOT PENETRATE ANY PART OR PORTION OF SAID
PROJECT AREA WITHIN 500 FEET OF THE SURFACE THEREOF, AS RESERVED IN VARIOUS
DEEDS OF RECORD, AMONG THEM BEING THE DEED RECORDED MAY 20, 1966 AS INSTRUMENT
NO. 3924, IN BOOK D-3311 PAGE 794, OFFICIAL RECORDS.
PARCEL 16:
A PARCEL OF LAND IN XXX XXXX XX XXX XXXXXXX, XXXXXX XX XXX XXXXXXX, XXXXX OF
Page 17 of 18
CALIFORNIA, BEING THOSE PORTIONS OF GRAND AVENUE 64 FEET WIDE AND GENERAL
THADDEDS KOSCIUSZJOO WAY 40 FEET WIDE AS SHOWN ON THE MAP OF TRACT NO. 30780,
RECORDED IN BOOK 912 PAGES 39 THROUGH 45 INCLUSIVE OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, VACATED BY RESOLUTION NO. 84-21740 OF THE CITY
COUNSEL OF THE CITY OF LOS ANGELES, A CERTIFIED COPY OF WHICH WAS RECORDED ON
JANUARY 24, 1985 AS INSTRUMENT NO. 85-84593, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, LYING BELOW A HORIZONTAL PLANS AT ELEVATION 369.5 FEET
BASED ON NATIONAL GEODETIC VERTICAL DATUM OF 1929, INCLUDED WITHIN A STRIP OF
LAND 1.00 FOOT WIDE, LYING CONTIGUOUS TO AND NORTHERLY AND NORTHWESTERLY OF THE
FOLLOWING DESCRIBED LINE:
BEGINNING AT THE INTERSECTION OF THE NORTHWESTERLY PROLONGATION OF A LINE
PARALLEL WITH AND DISTANT 2.15 FEET SOUTHWESTERLY OF NORTHEASTERLY STRAIGHT LINE
OF SAID LOT 2 WITH THE CURVED NORTHERLY LINE OF SAID LOT; THENCE WESTERLY AND
SOUTHWESTERLY ALONG SAID CURVED LINE TO THE STRAIGHT NORTHWESTERLY LINE OF SAID
LOT; THENCE SOUTHWESTERLY ALONG SAID NORTHWESTERLY LINE AND ITS SOUTHWESTERLY
PROLONGATION TO ITS INTERSECTION WITH A LINE PARALLEL WITH AND DISTANT 21.3 FEET
NORTHEASTERLY OF THE CENTERLINE OF 3RD PLACE 80 FEET WIDE AS SAID STREET IS
SHOWN ON SAID MAP.
EXCEPT THEREFROM THAT PORTION LYING NORTHEASTERLY OF SAID FIRST MENTIONED
PARALLEL LINE.
A PORTION OF SAID LAND IS NOW A PORTION OF XXXX 0 XXX 0 XX XXXXX XX. 00000, XX
SAID CITY, AS PER MAP RECORDED IN BOOK 1070 PAGES 31 THROUGH 38, INCLUSIVE OF
MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 17:
XXX 0 XX XXXXX XX. 00000, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 1070, PAGE(S) 31 THROUGH 38
INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
Page 18 of 18
EXHIBIT B
LEASING GUIDELINES
"Leasing Guidelines" shall mean the guidelines approved in writing by
Beneficiary, from time to time, with respect to the leasing of the Property. The
following are the initial Leasing Guidelines:
(a) All Leases shall be on the standard form of lease approved by
Beneficiary in writing;
(b) All Leases shall have an initial term of not more than ten
(10) years;
(c) None of the Leases shall cover more than the greater of (i)
25,000 square feet of net leasable area, or (ii) one (1) full floor of the
Improvements;
(d) All Leases on a net basis shall have an annual net minimum
rent payable of at least $11.50 per square foot of net leasable area net of all
concessions, and all Leases on a gross basis shall have an annual net minimum
rent payable of at least $24.00 per square foot of net leasable area net of all
concessions. Tenant concessions for the foregoing purposes shall be deemed to
include, but are not limited to, tenant improvement allowances, rental
abatements and external lease obligation reimbursements;
(e) All net Leases shall contain provisions requiring the tenant
to pay its proportionate share of operating expenses and taxes, and all other
Leases shall contain provisions requiring the tenant to pay, after the first
year, its proportionate share of increases in taxes and operating expenses; and
(f) No Leases shall be entered into if there exists an Event of
Default.
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On 11-5, 2003, before me, Xxxx X. Xxxx, a Notary Public
personally appeared Xxxxxxx X. Xxxxxxxxx, personally known to me 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 /s/ XXXX X. XXXX (Seal)
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