Exhibit 10.2
RECORDING REQUESTED BY
Northwestern Mutual Life
When Recorded Mail to:
The Northwestern Mutual Life
Insurance Company
Xxxxx Xxxxxx - Room N16WC
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Loan No. C-337112
DEED OF TRUST AND SECURITY AGREEMENT
(FIRST PRIORITY - BAYSHORE PROJECT)
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CALIFORNIA
LOAN NO. C-337112
RECORDING REQUESTED BY
_____________________
WHEN RECORDED MAIL TO
The Northwestern Mutual Life Ins. Co.
000 Xxxx Xxxxxxxxx Xxxxxx - Xx X00XX
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
SPACE ABOVE THIS LINE FOR RECORDER'S USE
DEED OF TRUST AND SECURITY AGREEMENT
(FIRST PRIORITY - BAYSHORE PROJECT)
THIS DEED OF TRUST and SECURITY AGREEMENT is made as of the 28th day of
December, 2004 between BMR - BAYSHORE BOULEVARD LLC, a Delaware limited
liability company, whose mailing address is c/o BioMed Realty Trust, Inc., 00000
Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000, herein called "Grantor",
and THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, a Wisconsin corporation,
whose mailing address is 000 X. Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, herein
called "Trustee", and THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, a
Wisconsin corporation, whose mailing address is 000 X. Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000, herein called "Beneficiary":
WITNESSETH, that Grantor, in consideration of the indebtedness herein
mentioned, does hereby irrevocably bargain, sell, grant, transfer, assign and
convey unto Trustee, in trust, with power of sale and right of entry and
possession, the following property (herein referred to as the "Bayshore
Project"):
A. The land in the City of Brisbane, County of San Mateo, State of
California, described in Exhibit "A" attached hereto and
incorporated herein (the "Land");
B. All easements, appurtenances, tenements and hereditaments belonging
to or benefiting the Land, including but not limited to all waters,
water rights, water courses, all ways, trees, rights, liberties and
privileges;
C. All improvements to the Land, including, but not limited to, all
buildings, structures and improvements now existing or hereafter
erected on the Land; all fixtures and equipment of every description
belonging to Grantor which are or may be
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placed or used upon the Land or attached to the buildings,
structures or improvements, including, but not limited to, all
engines, boilers, elevators and machinery, all heating apparatus,
electrical equipment, air-conditioning and ventilating equipment,
water and gas fixtures, and all furniture and easily removable
equipment; all of which, to the extent permitted by applicable law,
shall be deemed an accession to the freehold and a part of the
realty as between the parties hereto; and
D. Grantor's interest in all articles of personal property of every
kind and nature whatsoever, including, but not limited to all
carpeting, draperies, ranges, ovens, microwave ovens, refrigerators,
dishwashers, furniture, dehumidification equipment, laboratory
equipment, etc., now or hereafter located upon the Land or in or on
the buildings and improvements and now owned or leased or hereafter
acquired or leased by Grantor.
Grantor agrees not to sell, transfer, assign or remove any material item
described in B, C and D above now or hereafter located on the Land without prior
written consent from Beneficiary unless (i) such action does not constitute a
sale or removal of any buildings or structures or the sale or transfer of waters
or water rights and (ii) such action results in the substitution or replacement
with similar items of equal value.
Without limiting the foregoing grants, Grantor hereby pledges to Beneficiary,
and grants to Beneficiary a security interest in, all of Grantor's present and
hereafter acquired right, title and interest in and to the Bayshore Project and
any and all
E. cash and other funds now or at any time hereafter deposited by or
for Grantor on account of tax, special assessment, replacement or
other reserves required to be maintained pursuant to the Loan
Documents (as hereinafter defined) with Beneficiary or a third
party, or otherwise deposited with, or in the possession of,
Beneficiary pursuant to the Loan Documents; and
F. surveys, soils reports, environmental reports, guaranties,
warranties, architect's contracts, construction contracts, drawings
and specifications, applications, permits, surety bonds and other
contracts relating to the acquisition, design, development,
construction and operation of the Bayshore Project; and
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G. accounts, chattel paper, deposit accounts, instruments, equipment,
inventory, documents, general intangibles, letter-of-credit rights,
investment property and all other personal property of Grantor;
H. present and future rights to condemnation awards, insurance proceeds
or other proceeds at any time payable to or received by Grantor on
account of the Bayshore Project or any of the foregoing personal
property; and
I. tenant security deposits (whether in the form of cash, letter of
credit or other instrument) required by the terms of the lease with
Intermune Pharmaceuticals, Inc. and Altus Medical, Inc., and by any
other lease now or hereafter in effect at the Bayshore Project.
All personal property hereinabove described is hereinafter referred to as the
"Personal Property".
If any of the Bayshore Project is of a nature that a security interest
therein can be perfected under the Uniform Commercial Code, this instrument
shall constitute a security agreement and financing statement if permitted by
applicable law and Grantor authorizes Beneficiary to file a financing statement
describing such Bayshore Project and, at Beneficiary's request, agrees to join
with Beneficiary in the execution of any financing statements and to execute any
other instruments that may be necessary or desirable, in Beneficiary's
determination, for the perfection or renewal of such security interest under the
Uniform Commercial Code.
TO HAVE AND TO HOLD the same unto Trustee for the purpose of securing:
(a) Payment to the order of Beneficiary of the indebtedness evidenced by a
promissory note of even date herewith (and any restatement, extension or renewal
thereof and any amendment thereto) executed by Grantor for the principal sum of
SIXTEEN MILLION FOUR HUNDRED THIRTY SEVEN THOUSAND SIX HUNDRED TWENTY SIX
DOLLARS, with final maturity no later than January 1, 2010 and with interest as
therein expressed (which promissory note, as such instrument may be amended,
restated, renewed and extended, is hereinafter referred to as the "Note"), it
being recognized that the funds may not have been fully advanced as of the date
hereof but may be advanced in the future in accordance with the terms of a
written contract; and
(b) Payment of all sums that may become due Beneficiary under the
provisions of, and the performance of each agreement of Grantor contained in,
the Loan Documents; and
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(c) Payment of such additional sums, with interest thereon, as may
hereafter be loaned by Beneficiary to Grantor when evidenced by a promissory
note or notes of Grantor, such additional note or notes to be identified by
recital that it or they are secured by this deed of trust, and such note or
notes shall be included in the word "Note" wherever it appears in the context of
this deed of trust, and the indebtedness evidenced by such additional note or
notes shall have the same priority as the indebtedness secured hereby.
"Loan Documents" has the meaning ascribed to it in that certain Master
Loan Agreement of even date herewith among Grantor (as Borrower), certain
Affiliates of Grantor and Beneficiary (as Lender) ("Master Loan Agreement"). Any
term capitalized herein and not expressly defined herein shall have the meaning
set forth in the Master Loan Agreement.
FIXTURE FILING. This Deed of Trust constitutes a financing statement, filed as a
fixture filing in the real estate records of the County of the State in which
the real estate described in Exhibit A is located, with respect to any and all
fixtures included within the term "Bayshore Project" and "fixtures" under this
Deed of Trust and to any goods or other personal property that are now or
hereafter become a part of the Bayshore Project as fixtures.
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, GRANTOR COVENANTS AND
AGREES:
PAYMENT OF DEBT. Grantor agrees to pay the Indebtedness hereby secured promptly
and in full compliance with the terms of the Loan Documents.
OWNERSHIP. Grantor represents that it owns the Bayshore Project and has good and
lawful right to convey the same and that the Bayshore Project is free and clear
from any and all encumbrances whatsoever, except for Permitted Liens, as
hereinafter defined. "Permitted Liens" means (i) encumbrances which appear in
the title evidence accepted by Beneficiary, (ii) the Permitted Second Lien
defined in the provision below entitled "Other Liens," (iii) liens and
encumbrances on Personal Property incident to the ordinary course of business
that do not exceed $25,000 in the aggregate at any time, and (iv) encumbrances
on the Property created in connection with the anticipated subdivision of the
Property in connection with the release of a portion of the Property referred to
as 0000 Xxxxxxxx Xxxxxxxxx (as contemplated in the Master Loan Agreement), such
as, by way of example, reciprocal easements for access, utilities, parking, and
common area maintenance, provided that Beneficiary has reviewed and reasonably
approved such subdivision-related encumbrances.
Grantor does hereby forever warrant and shall forever defend the title and
possession thereof against the lawful claims of any and all persons whomsoever.
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MAINTENANCE OF BAYSHORE PROJECT AND COMPLIANCE WITH LAWS. Grantor agrees to keep
the buildings and other improvements now or hereafter erected on the Land in
good condition and repair, ordinary wear and tear excepted; not to commit or
suffer any waste; to comply with all laws, rules and regulations affecting the
Bayshore Project; and to permit Beneficiary to enter at all reasonable times for
the purpose of inspection and of conducting, in a reasonable and proper manner,
such tests as Beneficiary determines to be necessary in order to monitor
Grantor's compliance with applicable laws and regulations regarding hazardous
materials affecting the Bayshore Project.
TENANTS USING CHLORINATED SOLVENTS. Grantor agrees not to lease any of the
Bayshore Project, without the prior written consent of Beneficiary, to (i) dry
cleaning operations that perform dry cleaning on site with chlorinated solvents
or (ii) any other tenants that use chlorinated solvents in the operation of
their businesses.
Notwithstanding the above, a tenant's use of a product which contains no more
than sixteen (16) ounces of chlorinated solvents, in solution or in pure form,
shall not violate this prohibition if, and only if, (i) tenant's use, storage,
and the ultimate disposal of, said solvents is at all times in compliance with
applicable law, and (ii) said solvents are acquired and kept in prepackaged
containers.
BUSINESS RESTRICTION REPRESENTATION AND WARRANTY. Grantor represents and
warrants that Grantor, all persons and entities owning (directly or indirectly)
an ownership interest in Grantor, all guarantors of all or any portion of the
Indebtedness, and all persons and entities executing any separate indemnity
agreement in favor of Beneficiary in connection with the Indebtedness: (i) are
not, and shall not become, a person or entity with whom Beneficiary is
restricted from doing business under regulations of the Office of Foreign Asset
Control ("OFAC") of the Department of the Treasury (including, but not limited
to, those named on OFAC's Specially Designated and Blocked Persons list) or
under any statute, executive order (including, but not limited to, the September
24, 2001 Executive Order Blocking Property and Prohibiting Transactions With
Persons Who Commit, Threaten to Commit, or Support Terrorism), or other
governmental action; (ii) are not knowingly engaged in, and shall not engage in,
any dealings or transaction or be otherwise associated with such persons or
entities described in (i) above; and (iii) are not, and shall not become, a
person or entity whose activities are regulated by the International Money
Laundering Abatement and Financial Anti-Terrorism Act of 2001 or the regulations
or orders thereunder.
INSURANCE. Grantor covenants to maintain all insurance and apply insurance
proceeds as required by Article IX (Insurance; Application of Insurance Loss
Proceeds) of the Master Loan Agreement.
CONDEMNATION. Grantor assigns Condemnation Proceeds to Beneficiary and agrees
that such proceeds shall be applied as set forth in the Master Loan Agreement.
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TAXES AND SPECIAL ASSESSMENTS. Grantor agrees to pay before delinquency all
taxes and special assessments of any kind that have been or may be levied or
assessed against the Bayshore Project, this instrument, the Note or the
Indebtedness, or upon the interest of Trustee or Beneficiary in the Bayshore
Project, this instrument, the Note or the Indebtedness, and to procure and
deliver to Beneficiary within thirty (30) days after Beneficiary shall have
given a written request to Grantor, the official receipt of the proper officer
showing timely payment of all such taxes and assessments; provided, however,
that Grantor shall not be required to pay any such taxes or special assessments
if the amount, applicability or validity thereof shall currently be contested in
good faith by appropriate proceedings and funds sufficient to satisfy the
contested amount have been deposited in an escrow satisfactory to Beneficiary.
PERSONAL PROPERTY. With respect to the Personal Property, Grantor hereby
represents, warrants and covenants as follows:
(a) Except for the security interest granted hereby and Permited Liens,
Grantor is, and as to portions of the Personal Property to be acquired after the
date hereof will be, the sole owner of the Personal Property, free from any
lien, security interest, encumbrance or adverse claim thereon of any kind
whatsoever. Grantor shall notify Beneficiary of, and shall indemnify and defend
Beneficiary and the Personal Property against, all claims and demands of all
persons at any time claiming the Personal Property or any part thereof or any
interest therein.
(b) Except as otherwise provided above, Grantor shall not lease, sell,
convey or in any manner transfer any material item of the Personal Property
without the prior consent of Beneficiary.
(c) Grantor is a limited liability company organized under the laws of the
State of Delaware. Until the Indebtedness is paid in full, Grantor (i) shall not
change its legal name without providing Beneficiary with thirty (30) days' prior
written notice; and (ii) shall not change its state of organization; and (iii)
shall preserve its existence and shall not, in one transaction or a series of
transactions, merge into or consolidate with any other entity.
(d) At the request of Beneficiary, Grantor shall join Beneficiary in
executing one or more financing statements and continuations and amendments
thereof pursuant to the Uniform Commercial Code in form satisfactory to
Beneficiary, and Grantor shall pay the cost of filing the same in all public
offices wherever filing is deemed by Beneficiary to be necessary or desirable.
Grantor shall also, at Grantor's expense, take any and all other action
requested by Beneficiary to perfect Beneficiary's security interest under the
Uniform Commercial Code with respect to the Personal Property, including,
without limitation, exercising Grantor's best efforts to obtain any consents,
agreements or acknowledgments
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required of third parties to perfect Beneficiary's security interest in Personal
Property consisting of deposit accounts, letter-of-credit rights, investment
property, and electronic chattel paper.
OTHER LIENS. Grantor agrees to keep the Bayshore Project and any Personal
Property free from all other liens either prior or subsequent to the lien
created by this instrument, except for the second priority lien in favor of
Beneficiary securing certain loans of even date herewith by Beneficiary to
Grantor's Affiliates ("Permitted Second Lien") and other Permitted Liens. The
(i) creation of any other lien on any portion of the Bayshore Project or on any
Personal Property, whether or not prior to the lien created hereby, (ii)
assignment or pledge by Grantor of its revocable license to collect, use and
enjoy rents and profits from the Bayshore Project, or (iii) granting or
permitting of a security interest in or other encumbrance on the ownership
interests in Grantor, shall constitute a default under the terms of this
instrument; except that upon written notice to Beneficiary, Grantor may, after
the Loan Closing Date, proceed to contest in good faith and by appropriate
proceedings any mechanics liens, tax liens or judgment liens with respect to the
Bayshore Project or any Personal Property described herein, provided funds
sufficient to satisfy the contested amount have been deposited in an escrow
account satisfactory to Beneficiary.
INDEMNIFICATION, DUTY TO DEFEND AND COSTS, FEES AND EXPENSES. In addition to any
other indemnities by Grantor contained in the Loan Documents, Grantor shall
indemnify, defend and hold Beneficiary harmless from and against any and all
losses, liabilities, claims, demands, damages, costs and expenses (including,
but not limited to, costs of title evidence and endorsements to Beneficiary's
title insurance policy with respect to the Bayshore Project and reasonable
attorney fees and other costs of defense) of this trust which may be imposed
upon, incurred by or asserted against Beneficiary, whether or not any legal
proceeding is commenced with regard thereto, in connection with: (i) the
enforcement of any of Beneficiary's or Trustee's rights or powers under the Loan
Documents; (ii) the protection of Beneficiary's interest in the Bayshore
Project; or (iii) any accident, injury to or death of persons or loss of or
damage to property occurring in, on or about the Bayshore Project or on any
sidewalk, curb, parking area, space or street located adjacent thereto, except
in the case of matters in (iii) to the extent caused by Beneficiary's gross
negligence or willful misconduct. If any claim or demand is made or asserted
against Beneficiary by reason of any event as to which Grantor is obligated to
indemnify or defend Beneficiary, then, upon demand by Beneficiary, Grantor, at
Grantor's sole cost and expense, shall defend such claim, action or proceeding
in Beneficiary's name, if necessary, by such attorneys as Beneficiary shall
reasonably approve. Notwithstanding the foregoing, Beneficiary may, in
Beneficiary's sole discretion, engage its own attorneys to defend it or assist
in its defense and Grantor shall pay the reasonable fees and disbursements of
such attorneys.
FAILURE OF GRANTOR TO ACT. If Grantor fails to make any payment or do any act as
herein provided and such failure constitutes an Event of Default, Beneficiary or
Trustee may, without obligation to do so, without notice to or demand upon
Grantor and without releasing Grantor from any obligation hereof: (i) make or do
the same in such manner and to such
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extent as Beneficiary may deem necessary to protect the security hereof,
Beneficiary or Trustee being authorized to enter upon the Bayshore Project for
such purpose; (ii) appear in and defend any action or proceeding purporting to
affect the security hereof, or the rights or powers of Beneficiary or Trustee;
(iii) pay, purchase, contest or compromise any encumbrance, charge or lien which
in the judgment of Beneficiary appears to be prior or superior hereto; and (iv)
in exercising any such powers, pay necessary expenses, employ counsel and pay
its reasonable fees. Sums so expended and all losses, liabilities, claims,
damages, costs and expenses required to be reimbursed by Grantor to Beneficiary
hereunder shall be payable by Grantor immediately upon demand with interest from
date of expenditure or demand, as the case may be, at the Default Rate (as
defined in the Note). All sums so expended or demanded by Beneficiary and the
interest thereon shall be included in the Indebtedness and secured by the lien
of this instrument.
DEFAULT; EVENT OF DEFAULT. The terms "Default" and "Event of Default" shall have
the meaning ascribed in the Master Loan Agreement.
SUBSTITUTION OF TRUSTEE. Beneficiary and its successors and assigns may for any
reason and at any time appoint a new or substitute Trustee by written
appointment delivered to such new or substitute Trustee without notice to
Grantor, without notice to, or the resignation or withdrawal by, the existing
Trustee and without recordation of such written appointment unless notice or
recordation is required by the laws of the jurisdiction in which the Bayshore
Project is located. Upon delivery of such appointment, the new or substitute
Trustee shall be vested with the same title and with the same powers and duties
granted to the original Trustee.
APPOINTMENT OF RECEIVER. Upon commencement of any proceeding to enforce any
right under this instrument, including foreclosure thereof, after the occurrence
and during the continuance of an Event of Default, Beneficiary (without
limitation or restriction by any present or future law, without regard to the
solvency or insolvency at that time of any party liable for the payment of the
Indebtedness, without regard to the then value of the Bayshore Project, whether
or not there exists a threat of imminent harm, waste or loss to the Bayshore
Project and whether or not the same shall then be occupied by the owner of the
equity of redemption as a homestead) shall have the absolute right to the
appointment of a receiver of the Bayshore Project and of the revenues, rents,
profits and other income therefrom, and said receiver shall have (in addition to
such other powers as the court making such appointment may confer) full power to
collect all such income and, after paying all necessary expenses of such
receivership and of operation, maintenance and repair of said Bayshore Project,
to apply the balance to the payment of any of the Indebtedness then due.
FORECLOSURE. Upon the occurrence and during the continuance of an Event of
Default, the entire unpaid Indebtedness shall, at the option of Beneficiary,
become immediately due and payable for all purposes without any notice or
demand, except as required by law (ALL OTHER NOTICE OF THE EXERCISE OF SUCH
OPTION, OR OF THE INTENT TO EXERCISE SUCH OPTION, BEING HEREBY EXPRESSLY
WAIVED), and Beneficiary
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may, in addition to exercising any rights it may have with respect to the
Personal Property under the Uniform Commercial Code of the jurisdiction in which
the Bayshore Project is located, institute proceedings in any court of competent
jurisdiction to foreclose this instrument as a mortgage, or to enforce any of
the covenants hereof, or Trustee or Beneficiary may, to the extent permitted by
applicable law, either personally or by agent or attorney in fact, enter upon
and take possession of the Bayshore Project and may manage, rent or lease the
Bayshore Project or any portion thereof upon such terms as Beneficiary may deem
expedient, and collect, receive and receipt for all rentals and other income
therefrom and apply the sums so received as hereinafter provided in case of
sale. Trustee is hereby further authorized and empowered, either after or
without such entry, to sell and dispose of the Bayshore Project en masse or in
separate parcels (as Trustee may think best), and all the right, title and
interest of Grantor therein, by advertisement or in any manner provided by
applicable law, (GRANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO A HEARING PRIOR TO
SUCH SALE), and to issue, execute and deliver a deed of conveyance, all as then
may be provided by applicable law; and Trustee, to the extent permitted by
applicable law, shall, out of the proceeds or avails of such sale, after first
paying and retaining all fees, charges, costs of advertising the Bayshore
Project and of making said sale, and attorneys' fees as herein provided, pay to
Beneficiary or the legal holder of the Indebtedness the amount thereof,
including all sums advanced or expended by Beneficiary or the legal holder of
the Indebtedness, with interest from date of advance or expenditure at the
Default Rate, rendering the excess, if any, as provided by the Master Loan
Agreement; such sale or sales and said deed or deeds so made shall be a
perpetual bar, both in law and equity, against Grantor, the heirs, successors
and assigns of Grantor, and all other persons claiming the Bayshore Project
aforesaid, or any part thereof, by, from, through or under Grantor. The legal
holder of the Indebtedness may purchase the Bayshore Project or any part
thereof, and it shall not be obligatory upon any purchaser at any such sale to
see to the application of the purchase money.
PROHIBITION ON TRANSFER. The present ownership and management of the Bayshore
Project is a material consideration to Beneficiary in making the loan secured by
this instrument, and except as expressly permitted in the Master Loan Agreement,
Grantor shall not (i) convey title to all or any part of the Bayshore Project,
(ii) enter into any contract to convey (land contract/installment sales
contract/contract for deed) title to all or any part of the Bayshore Project
which gives a purchaser possession of, or income from, the Bayshore Project
prior to a transfer of title to all or any part of the Bayshore Project or (iii)
cause or permit a Change in the Proportionate Ownership of Grantor (as defined
in the Master Loan Agreement).
EARTHQUAKE. If the Bayshore Project is damaged by an earthquake during the term
of the Indebtedness:
(A) Beneficiary may require a new seismic analysis to be performed at
Grantor's expense, and
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(B) Grantor shall perform repair and retrofit work, reasonably
satisfactory to Beneficiary, which results in (i) the complete repair of
the Bayshore Project and (ii) a subsequent seismic analysis verifying that
the Bayshore Project meets "Minimum Seismic Criteria" (as defined below).
Such work shall be commenced and completed as soon as possible and in any
event within one (1) year of the earthquake.
Without limiting the Grantor's obligation to cause the Bayshore Project to
satisfy Minimum Seismic Criteria, during any period of time in which the
Bayshore Project does not satisfy Minimum Seismic Criteria, Grantor shall
provide Beneficiary with evidence of, and maintain, "Earthquake Insurance" (as
defined below). Earthquake Insurance shall be provided on a replacement cost,
agreed amount basis, with no co-insurance provision, and shall include loss of
rents insurance equal to twelve (12) months rent or business income insurance
for 100% of the annual gross earnings from business derived from the Bayshore
Project.
As used herein, "Earthquake Insurance" means a policy satisfactory to
Beneficiary with a deductible of no greater than 5% of the "Replacement Cost"
(as defined below) and in an amount calculated as follows: (i) the Loan Amount
plus (ii) the Specified Loss minus (iii) 90% of the market value of the Bayshore
Project as determined by Beneficiary in its sole discretion.
As used herein, "Loan Amount" shall mean the total principal amount
advanced under the Note.
As used herein, "Minimum Seismic Criteria" means that both (i) the
Specified Loss Percentage for the Bayshore Project is less than or equal to 25%,
and (ii) the Loan Amount plus Specified Loss is less than or equal to 90% of the
market value of the Bayshore Project as determined by Beneficiary in its sole
discretion.
As used' herein, "Replacement Cost" means the estimated total cost,
determined by Beneficiary in its sole discretion, to construct all of the
improvements as if the Bayshore Project were completely unimproved (not
including the cost of site work, utilities and foundation).
As used herein, "Specified Loss" means the Specified Loss Percentage
multiplied by the Replacement Cost.
As used herein, "Specified Loss Percentage" means an estimate produced by
Beneficiary's selected software of the earthquake damage to the Bayshore
Project, expressed as a percentage of Replacement Cost.
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DEPOSITS BY GRANTOR. To assure the timely payment of real estate taxes and
special assessments (including personal property taxes, if appropriate), upon
the occurrence and during the continuance of an Event of Default, Beneficiary
shall thenceforth have the option to require Grantor to deposit funds with
Beneficiary or in an account satisfactory to Beneficiary, in monthly or other
periodic installments in amounts estimated by Beneficiary from time to time
sufficient to pay real estate taxes and special assessments as they become due.
If at any time the funds so held by Beneficiary, or in such other account, shall
be insufficient to pay any of said expenses, Grantor shall, upon receipt of
notice thereof, immediately deposit such additional funds as may be necessary to
remove the deficiency. All funds so deposited shall be irrevocably appropriated
to Beneficiary to be applied to the payment of such real estate taxes and
special assessments and, at the option of Beneficiary during an Event of
Default, the Indebtedness.
NOTICES. Any notices, demands, requests and consents permitted or required
hereunder or under any other Loan Document shall be in writing, may be delivered
personally or sent by certified mail with postage prepaid or by reputable
courier service with charges prepaid. Any notice or demand sent to Grantor by
certified mail or reputable courier service shall be addressed to Grantor to the
attention of Xxxx X. Xxxxxxxx at c/o BioMed Realty Trust, Inc., 00000 Xxxxxxxx
Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000 or such other address in the United
States of America as Grantor shall designate in a notice to Beneficiary given in
the manner described herein. Any notice sent to Beneficiary by certified mail or
reputable courier service shall be addressed to The Northwestern Mutual Life
Insurance Company to the attention of the Real Estate Investment Department at
000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, or at such other addresses as
Beneficiary shall designate in a notice given in the manner described herein.
Any notice given to Beneficiary shall refer to the Loan No. set forth above. Any
notice or demand hereunder shall be deemed given when received. Any notice or
demand which is rejected, the acceptance of delivery of which is refused or
which is incapable of being delivered during normal business hours at the
address specified herein or such other address designated pursuant hereto shall
be deemed received as of the date of attempted delivery.
MODIFICATION OF TERMS. Without affecting the liability of Grantor or any other
person (except any person expressly released in writing) for payment of the
Indebtedness or for performance of any obligation contained herein and without
affecting the rights of Beneficiary with respect to any security not expressly
released in writing, Beneficiary may, at any time and from time to time, either
before or after the maturity of the Note, without notice or consent: (i) release
any person liable for payment of all or any part of the Indebtedness or for
performance of any obligation; (ii) make any agreement extending the time or
otherwise altering the terms of payment of all or any part of the Indebtedness,
or modifying or waiving any obligation, or subordinating, modifying or otherwise
dealing with the lien or charge hereof; (iii) exercise or refrain from
exercising or waive any right Beneficiary may have; (iv) accept additional
security of any kind; or (v) release or otherwise
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deal with any property, real or personal, securing the Indebtedness, including
all or any part of the Bayshore Project.
EXERCISE OF OPTIONS. Whenever, by the terms of this instrument, of the Note or
any of the other Loan Documents, Beneficiary is given any option, such option
may be exercised when the right accrues, or at any time thereafter, and no
acceptance by Beneficiary of payment of Indebtedness in default shall constitute
a waiver of any default then existing and continuing or thereafter occurring.
NATURE AND SUCCESSION OF AGREEMENTS. Each of the provisions, covenants and
agreements contained herein shall inure to the benefit of, and be binding on,
the heirs, executors, administrators, successors, grantees, and assigns of the
parties hereto, respectively, and the term "Beneficiary" shall include the owner
and holder of the Note.
LEGAL ENFORCEABILITY. No provision of this instrument, the Note or any other
Loan Documents shall require the payment of interest or other obligation in
excess of the maximum permitted by law. If any such excess payment is provided
for in any Loan Documents or shall be adjudicated to be so provided, the
provisions of this paragraph shall govern and Grantor shall not be obligated to
pay the amount of such interest or other obligation to the extent that it is in
excess of the amount permitted by law.
LIMITATION OF LIABILITY. Notwithstanding any provision contained herein to the
contrary, the personal liability of Grantor shall be limited as provided in the
Master Loan Agreement.
CAPTIONS. The captions contained herein are for convenience and reference only
and in no way define, limit or describe the scope or intent of, or in any way
affect this instrument.
GOVERNING LAW. This instrument, the interpretation hereof and the rights,
obligations, duties and liabilities hereunder shall be governed and controlled
by the laws of the state of California.
REQUEST FOR NOTICE. Pursuant to California Government Code Section 27321.5(b),
Grantor hereby requests that a copy of any notice of default and a copy of any
notice of sale given pursuant to this instrument be mailed to Grantor at the
address set forth herein.
(remainder of page intentionally left blank)
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IN WITNESS WHEREOF, this instrument has been executed by the Grantor as of the
day and year first above written.
BMR - BAYSHORE BOULEVARD LLC,
a Delaware limited liability company
By: BioMed Realty, L.P., a Maryland limited
partnership, its sole member
By: BioMed Realty Trust, Inc.,
a Maryland corporation, its
general partner
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------
Xxxx X. Xxxxxxxx,
Executive Vice President
STATE OF CALIFORNIA )
)ss.
COUNTY OF SAN DIEGO )
On December ____, 2004, before me, _______________________, personally appeared
Xxxx Xxxxxxxx personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature__________________________
___________________________________
Name (typed or printed)
Notary My Commission expires:___________________
This instrument was prepared by Xxxxx X. Xxxxx, Attorney, for The Northwestern
Mutual Life Insurance Company, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000.
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