RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO:
IMPERIAL
CAPITAL BANK
000
Xxxxx
Xxxxx Xxxxxxxxx, Xxxxx 0000
Glendale,
California 91203
Attention:
Xxxxxxxx Xxxxx
INSTRUCTIONS
TO RECORDER:
Index
this document as (1) a deed of trust; (2)
an
assignment
of
rents; (3)
a
security agreement; and (4) a fixture filing
[
] IF THE PRECEDING BOX IS CHECKED, THIS IS A
CONSTRUCTION
TRUST DEED
[logo]
IMPERIAL
CAPITAL
BANK
(Space
above this line for Recorder's use)
DEED
OF TRUST, FIXTURE FILING, ASSIGNMENT OF
RENTS.
AND SECURITY AGREEMENT
THIS
DEED
OF TRUST, FIXTURE FILING, ASSIGNMENT OF RENTS, AND SECURITY AGREEMENT (the
"Deed
of Trust") is made on August
22, 2006, by
Northtown
Business Center, L.L.C., a Missouri limited liability company
("Trustor"),
whose address is 000
Xxxxxx Xxxx, Xxxxx Xxxxxx Xxxx,
Xxxxxxxx
00000, in
favor
of Husch Trustee, Inc., a Missouri corporation ("Trustee"), with an office
located at 000
Xxxx
Xxxx
Xxxxxx, Xxxxxxxxx Xxxx, Xxxxxxxx 00000,
for
the
benefit of IMPERIAL CAPITAL
BANK ("Beneficiary"),
whose principal office is located at 000
Xxxxx
Xxxxx Xxxxxxxxx, Xxxxx 0000,
Xxxxxxxx,
Xxxxxxxxxx 00000.
TRUSTOR
IRREVOCABLY GRANTS, BARGAINS, SELLS, CONVEYS AND CONFIRMS, TRANSFERS AND
ASSIGNS
TO
TRUSTEE, 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 described property (collectively, the "Property"):
(A) The
following described real property located in the City of North
Kansas City,
County of Clay, State of Missouri (the "Land"):
See
Exhibit "A" attached hereto and incorporated herein by this
reference.
The
street or common address of the Land is 000
Xxxx 00xx Xxxxxx (000 Xxxx 00xx Xxxxxx and 000 Xxxx 00xx Xxxxxx), Xxxxx
Xxxxxx
Xxxx, Xxxxxxxx 00000; and
(B) All
Buildings, Fixtures, Easements, Rents and Profits, Development Rights, Water
Rights, Mineral Rights, and Crops (as each of such terms is defined in Article
1
of this Deed of Trust).
THIS
DEED
OF TRUST SECURES THE FOLLOWING INDEBTEDNESS AND OBLIGATIONS (collectively,
the
"Obligations") in such order of priority as Beneficiary may from time to time
elect:
(1) Payment
and performance of Trustor's indebtedness and obligations under the promissory
note of even date herewith
in the original face principal amount of Three
Million One Hundred Fifty
Thousand
and 00/100 Dollars ($3,150,000.00) executed
by Trustor and payable to Beneficiary, or order, and all extensions, renewals,
modifications, and replacements thereof (collectively, the "Note");
REV.
DATE 6/04 (MISSOURI) TRUSTOR'S
INITIALS: /s/
CS mgr.
(2) Payment
and performance of Trustor's indebtedness and obligations under this Deed of
Trust and all extensions, renewals, and modifications of this Deed of
Trust;
(3) Payment
of all sums of money which may be advanced by, or otherwise due to, Trustee
or
Beneficiary under any provision of this Deed of Trust or to protect the security
of this Deed of Trust, with interest thereon at the rate provided in this Deed
of Trust;
(4) Payment
and performance of Trustor's indebtedness and obligations under the Building
Loan Agreement or Loan Agreement, if any, of even date herewith between Trustor
and Beneficiary which states that it is secured by this Deed of Trust and all
extensions, renewals, and modifications thereof (the "Loan
Agreement");
(5) Payment
and performance of all indebtedness and obligations owing on account of each
future loan that Beneficiary may elect to make to Trustor or the record owner
of
the Land when the promissory note evidencing such loan specifically states
that
it is secured by this Deed of Trust, and all extensions, renewals,
modifications, and replacements thereof (such loans are referred to individually
as a "Future Advance" and collectively as the "Future Advances");
and
(6) Payment
and performance of Trustor's indebtedness and obligations under all other
existing and future agreements executed by Trustor in connection with the loan
evidenced by the Note (the "Loan") or in connection with any Future Advance,
with interest thereon at the rate provided in such agreements, when such
agreement specifically states that it is secured by this Deed of Trust, and
all
extensions, renewals, and modifications of such agreements.
FOR
VALUABLE CONSIDERATION, Trustor agrees as follows:
ARTICLE
1
DEFINITIONS
For
purposes of this Deed of Trust, the following terms shall have the following
definitions:
1.1 Books
and Records. "Books
and Records" means all books and records relating to the design, construction,
improvement, development, use, ownership, operation, maintenance, repair, or
marketing of the Property, including (a) records reflecting the results of
operation of the Property; (b) all Leases and other documents relating to the
Property; and (c) Trustor's federal income tax returns for the year in which
the
Loan is made and each subsequent year that the Loan is outstanding.
1.2
Buildings. "Buildings"
means all buildings, structures and other improvements now existing or hereafter
located on the Land.
1.3 Commercial
Project. "Commercial
Project" means a multifamily residential project or a retail, commercial or
industrial project.
1.4
Condemnation
Claims.
"Condemnation Claims" means all claims, actions, causes of action, demands,
liens, rights, judgments, settlements, awards, compensation, and damages of
every kind and nature which Trustor now has or which may hereafter accrue
against any Person, whether arising in tort, by contract or statute, or in
any
other manner, which in any way directly or indirectly relate to or arise out
of
any condemnation of the Property or other taking of the Property for public
or
quasi-public use by eminent domain or to the transfer of the Property in lieu
of
condemnation or any such taking.
1.5
Condemnation
Proceeds. "Condemnation
Proceeds" means all proceeds of the Condemnation Claims, including all money,
deposit accounts, accounts, notes, drafts, instruments, documents, and all
other
tangible and intangible property resulting from the payment, collection of,
recovery on, or other disposition of any or all of the Condemnation
Claims.
1.6
Covenants
and Restrictions. "Covenants
and Restrictions" means all covenants, conditions, restrictions, equitable
servitudes, and all other similar matters now or hereafter affecting the
Property, including any condominium, planned unit development, or cooperative
apartment declaration of covenants, conditions and restrictions, by-laws,
articles, rules, and regulations to which Trustor or the Property is subject
or
bound.
1.7
Crops.
"Crops"
means all crops, trees and vines now or hereafter growing on the
Land.
1.8 Development
Rights.
"Development Rights" means all existing and future development rights,
development credits, air rights, and options of any kind relating to the
Property.
1.9 Easements. "Easements"
means all existing and future easements, rights of way,
licenses,
and similar rights relating or appurtenant to the Property and all existing
and
future rights in or to streets, roads, sidewalks, alleys, strips and gores
adjoining or used in connection with the Property.
1.10 Event
of Default.
"Event
of Default" means any of the events described in Article 3 of this Deed of
Trust.
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1.11
Fixtures.
"Fixtures" means all fixtures, machinery, equipment, building materials, and
appliances now or hereafter located in, on, attached or affixed to, or used
in
connection with the Land or the Buildings, including all systems for the supply
or distribution of heat, air conditioning, electricity, gas, water, air or
light; elevators, escalators and related machinery and equipment; fire
prevention and extinguishing equipment and water sprinkler systems; security
and
access control equipment; water heaters, showers, bathtubs, tanks, pumps,
toilets, sinks, pipes, and other plumbing fixtures and equipment; stoves,
ranges, refrigerators, dishwashers, and disposals; laundry equipment; engines,
motors, generators, boilers, furnaces, and incinerators; wall, window, and
floor
coverings, including screens, shades, drapes, and awnings; partitions, doors,
windows, cabinets, bookcases, and hardware; janitorial, maintenance, and waste
and rubbish removal equipment; recreational equipment; signs; switchboards,
telephone systems, and other communication equipment; television, radio, and
computer cables, antennae, and other equipment; chandeliers and other light
fixtures; trees, plants and other landscaping; and all attachments,
substitutions, accessories, accessions, replacements,
improvements, and additions to any or all of the foregoing, all of which shall
conclusively be deemed to be part of the
Land and
Buildings and conveyed by this Deed of Trust, whether or not affixed or attached
to the Land.
1.12 Governmental
Authorities.
"Governmental Authorities" means (a) the United States; (b) the state, county,
city, or other political subdivision in which the Land is located; (c) all
other
governmental or quasi-governmental authorities, boards, bureaus, agencies,
commissions, departments, administrative tribunals, and other instrumentalities
or authorities; and (d) all judicial authorities and public utilities having
or
exercising jurisdiction over Trustor or the Property.
1.13
Governmental
Permits. "Governmental
Permits" means all permits, approvals, and authorizations now or hereafter
issued by all Governmental Authorities for or in connection with the design,
construction, improvement, development, use,
ownership, operation, maintenance, repair, or marketing of the Property,
including grading permits, foundation permits, building permits, tentative
subdivision map approvals, zone changes, zone variances, conditional use
permits, temporary certificates of occupancy, and final certificates of
occupancy.
1.14
Governmental
Requirements. "Governmental
Requirements" means all existing and future laws, ordinances, rules,
regulations, orders, and requirements of all Governmental Authorities applicable
to Trustor or the Property, including those respecting
the design, construction, improvement, development, use, ownership, operation,
maintenance, repair, or marketing of the
Property.
1.15 Ground
Lease. "Ground
Lease" means any lease agreement creating a leasehold estate which is now or
hereafter encumbered by this Deed of Trust.
1.16 Guaranties. "Guaranties"
means the guaranty agreement or agreements executed by the
Guarantors.
1.17 Guarantors. "Guarantors"
means the Person or Persons, if any, now or hereafter guaranteeing payment
of
the Note or payment or performance of any or all of the other
Obligations.
1.18 Impositions. "Impositions"
means all (a) Taxes; (b) Insurance Premiums; (c) gas, electricity, water, sewer,
and other utility charges which are incurred for the benefit of the Property
or
which may become a lien against the Property; (d) assessments, charges, and
fees
imposed pursuant to any Covenants and Restrictions; (e) assessments, charges
and
fees payable with respect to any Easements, Water Rights or Development Rights;
(f) principal, interest, and other amounts payable in connection with any Liens;
(g) rents and other amounts payable under any Ground Lease; and (h) such other
taxes, charges, premiums, assessments and impositions relating to the Property,
the payment of which Beneficiary determines to be necessary to protect
Beneficiary's security for the Obligations.
1.19
Improvements. "Improvements"
means the Buildings and Fixtures, collectively.
1.20 Insurance
Claims.
"Insurance Claims" means all claims, actions, causes of action, demands, liens,
rights, judgments, settlements, awards, compensation, and damages of every
kind
and nature which Trustor now has or which may hereafter
accrue against any Person, whether arising in tort, by contract or statute,
or
in any other manner, which in any way directly
or
indirectly relate to or arise under any policy of insurance which Trustor
maintains with respect to the Property or which Trustor is required to maintain
under this Deed of Trust (collectively, the "Insurance Policies").
1.21
Insurance
Proceeds. "Insurance
Proceeds" means all proceeds of the Insurance Claims, including all money,
deposit accounts, accounts, notes, drafts, instruments, documents, and all
other
tangible and intangible property resulting from the payment, collection of,
recovery on, or other disposition of any or all of the Insurance
Claims.
1.22
Insurance
Premiums. "Insurance
Premiums" means all premiums and other amounts payable in connection with
procuring or maintaining the Insurance Policies.
1.23
Leases.
"Leases"
means all existing and future rental agreements, leases, licenses, concessions,
occupancy agreements, and other similar agreements affecting the Property,
including all subleases at any level.
1.24
Liens.
"Liens"
means all mortgages, deeds of trust, mechanics' liens, and other liens and
encumbrances of every kind and nature, other than this Deed of Trust, now or
hereafter affecting the Property.
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1.25 Loan
Documents.
"Loan
Documents" means the Note, this Deed of Trust, the Loan Agreement, if any,
all
promissory notes evidencing any Future Advances, all other documents secured
by
this Deed of Trust, and all other documents executed by Trustor or any of the
Guarantors and delivered to Beneficiary at Beneficiary's request in connection
with the Loan or any Future Advance, and all extensions, renewals,
modifications, and replacements of such documents.
1.26
Mineral
Rights.
"Mineral
Rights" means alf existing and future right, title, and interest in and to
all
minerals, oil, gas and other hydrocarbon substances in or on the
Property.
1.27 Person. "Person"
means any natural person or any entity, including any corporation, partnership,
joint venture, limited liability company, trust, unincorporated organization,
trustee, or Governmental Authority.
1.28
Property
Claims.
"Property Claims" means all claims, actions, causes of action, demands, liens,
rights, judgments, settlements, awards, compensation, and damages of every
kind
and nature (other than the Insurance Claims and Condemnation Claims) which
Trustor now has or which may hereafter accrue against any Person, whether
arising in tort, by contract or statute, or in any other manner, which in any
way directly or indirectly relate to or arise out of any or all of the
following: (a) the Property; (b) any existing or future fact, matter,
occurrence, or transaction relating to the Property; or (c) the design,
construction, improvement, development, use, ownership, operation, maintenance,
repair or marketing of the Property.
1.29
Property
Proceeds.
"Property Proceeds" means all proceeds of the Property Claims, including all
money, deposit accounts, accounts, notes, drafts, instruments, documents, and
all other tangible and intangible property resulting from the payment,
collection of, recovery on, or other disposition of any or all of the Property
Claims.
1.30
Rents
and Profits.
"Rents
and Profits" means all existing and future rents, royalties, issues, profits,
proceeds, revenues, income and other benefits of the Property and all Leases,
including all security deposits and prepaid rent.
1.31 Taxes. "Taxes"
means (a) all taxes, bonds, levies and assessments now or hereafter affecting
the Property, including all general and special real and personal property
taxes, bonds, and assessments affecting the Property; (b) all other taxes,
bonds, levies and assessments which now are or hereafter may become a lien
on
the Property, including all income, profits, franchise, withholding, and gross
receipt taxes; (c) all other charges now or hereafter imposed on or assessed
against the Property by any Governmental Authority or arising with respect
to
the design, construction, improvement, development, use, ownership, operation,
maintenance, repair or marketing of the Property; and (d) all taxes, bonds,
levies, and assessments now or hereafter imposed by any Governmental Authorities
on Trustee or Beneficiary by reason of their respective interests in this Deed
of Trust, the Note, or any promissory note evidencing a Future Advance,
excluding any franchise, estate, inheritance, income, or similar tax imposed
on
Beneficiary or Trustee.
1.32
Tenants.
"Tenants" means all tenants and occupants of the Property under the
Leases.
1.33
Water
rights.
"Water
rights" means all existing and future water, water rights (whether riparian,
appropriative, or otherwise, and whether or not appurtenant), and all water
stock relating to the Property.
ARTICLE
2
COVENANTS
OF TRUSTOR
2.1
Performance
of Secured Obligations. Trustor
shall pay and perform each and all of the Obligations in accordance
with their respective terms.
2.2
Preservation
of the Property. Trustor
(a) shall maintain the Property in good condition and repair; (b) shall promptly
repair and restore in a good and workmanlike manner any part of the Property
which may be damaged or destroyed, whether or not any Insurance Proceeds are
adequate to pay for the cost of such repair and restoration; (c) shall comply
and cause the Property to comply with the provisions of all Insurance Policies;
(d) shall comply and cause the Property to comply with all Governmental
Requirements; (e) shall comply and cause the Property to comply with all
Covenants and Restrictions; (f) shall maintain in effect all Governmental
Permits; (g) shall not initiate, join in or consent to any change in the zoning,
general plan, specific plan, or any other land use classification affecting
the
Property or any Covenant or Restriction without the prior written consent of
Beneficiary; (h) shall not remove, demolish, improve, add to, or alter the
Improvements (excluding non-structural alterations which preserve or increase
the value of the Property) or change the character or use of the Property
without the prior written consent of Beneficiary; (i) shall not commit or permit
any waste respecting the Property or impairment of the Property; (j) shall
not
abandon the Property; (k) shall not commit or permit any act upon the Property
in violation of any Governmental Requirements; (I) shall promptly complete
in a
good and workmanlike manner all Improvements which Trustor commences to
construct on the Land; and (m) shall paint, cultivate, irrigate, fertilize,
fumigate, prune, maintain and do all other acts, in a timely and proper manner,
which from the character or use of the Property may be necessary or appropriate
to preserve, protect and maintain the value of the Property.
2.3
Insurance.
Trustor
shall at all times maintain in full force (a) fire and extended coverage all
risk insurance, together with such endorsements as Beneficiary may require,
including vandalism, malicious mischief, earthquake, and flood coverage; (b)
commercial general liability insurance; and (c) such other types of insurance
as
may from time to time be required by
4 TRUSTOR'S
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Beneficiary,
including business interruption insurance, rental loss insurance, and workers'
compensation insurance. Each of the Insurance Policies, including the amounts,
form, coverage, deductibles, insurer and loss payable and cancellation
provisions, shall be acceptable to Beneficiary. Without limiting any of the
terms of this Section, (i) each of the Insurance Policies shall provide that
it
may be canceled or modified only upon not less than thirty (30) days prior
written notice to Beneficiary; (ii) the fire and extended coverage and other
casualty insurance policies which Trustor is required to maintain under this
Deed of Trust shall contain a mortgagee's
loss payable endorsement acceptable to Beneficiary naming Beneficiary as loss
payee and shall be written with liability
in an
amount equal to the greater of the original face principal amount of the Note
or
the full replacement cost of the improvements, subject to applicable legal
limitations on the amount of such insurance which may be required by
Beneficiary; and (iii) the comprehensive
general liability policy which Trustor is required to maintain shall name
Beneficiary as an additional insured and shall
be
primary and noncontributing with any insurance maintained by
Beneficiary.
2.4
Insurance
Policies.
Upon
Beneficiary's request, Trustor shall deliver to Beneficiary the originals of
all
Insurance Policies together with receipts for the full payment of all Insurance
Premiums, and Beneficiary shall have the right to hold such policies as long
as
any Obligations are outstanding. By approving, disapproving, accepting,
obtaining or failing to obtain any Insurance Policies, Beneficiary shall not
be
liable or responsible for the suitability, adequacy, enforceability, validity,
amount, form, or
content of any Insurance Policies, the solvency of any insurer, or the
collection of any Insurance Proceeds, and Trustor shall at all
times
have full responsibility for all of such matters. Not later than thirty (30)
days prior to the expiration of each of the Insurance Policies, Trustor shall
deliver to Beneficiary a policy or policies renewing or extending the expiring
Insurance Policies together with written evidence showing payment of the
Insurance Premiums for such policies. If Trustor fails to deliver any of the
Insurance Policies to Beneficiary in accordance with this Deed of Trust, or
if
any of the Insurance Policies is canceled, Beneficiary, without notice to or
demand upon Trustor, shall have the right to obtain such insurance in such
form,
content and amount and with such insurer as Beneficiary determines to be
necessary or appropriate to protect its interest. Without limiting any other
provision of this Deed
of
Trust, all premiums and other costs and expenses paid or incurred by Beneficiary
in connection with Beneficiary's obtaining
any
Insurance Policies under this Section shall be payable by Trustor to Beneficiary
on Beneficiary's demand. Notwithstanding anything to the contrary contained
in
the Loan Documents, if Beneficiary elects to obtain any Insurance Policies
as a
result of Trustor's breach of its obligation to maintain such Insurance Policies
in accordance with the terms of this Deed of Trust or the other Loan Documents
(including as a result of Trustor's failure to timely provide Beneficiary with
evidence acceptable to Beneficiary of the existence, renewal or extension of
any
Insurance Policies), then in addition to all other amounts that may be payable
by Trustor to Beneficiary under the terms of this Deed of Trust as a result
of
such breach, Trustor shall also pay to Beneficiary upon Beneficiary's demand
a
non-refundable administrative fee equal to $100.00 (the "Administrative Fee").
Trustor agrees that the actual administrative costs and expenses incurred by
Beneficiary because of any failure by Trustor to maintain the Insurance Policies
or to provide Beneficiary with evidence of the existence, renewal or extension
of any Insurance Policies are extremely difficult and impracticable to
ascertain, and the Administrative Fee described in this Section represents
a
reasonable attempt to fix such costs and expenses under the circumstances
existing at the time this Deed of Trust is executed. If Trustor fails to timely
provide Beneficiary with evidence acceptable to Beneficiary of the existence,
renewal or extension of any Insurance Policies, such Administrative Fee and
the
other amounts provided for in this Section nevertheless shall be payable by
Trustor to Beneficiary upon Beneficiary's
demand, even if Trustor has in fact obtained, renewed, or extended such
Insurance Policies. Beneficiary's acceptance
of any
such Administrative Fee shall not constitute a waiver of any breach by Trustor
of its obligation to maintain the Insurance Policies or of any of the other
terms of the Loan Documents and shall not affect Beneficiary's right to enforce
any of its rights and remedies against Trustor or any other Person under the
Loan Documents. Neither Trustee nor Beneficiary shall be obligated to obtain
or
maintain any policy of insurance with respect to the Property. All Insurance
Policies relating to the Property and all unearned Insurance Premiums shall
automatically inure to the benefit of and be deemed to be assigned to the
grantee of the Property
at any judicial or nonjudicial foreclosure sale under this Deed of Trust or
by
any deed in lieu of foreclosure under this Deed
of
Trust.
2.5
Assignment
of Insurance Claims and Proceeds. To
secure
the Obligations, Trustor grants, transfers, and assigns to Beneficiary the
Insurance Claims and Insurance Proceeds.
2.6
Assignment
of Condemnation Claims and Proceeds and Other Claims. To
secure
the Obligations, Trustor grants, transfers, and assigns to Beneficiary the
Condemnation Claims, Condemnation Proceeds, Property Claims, and Property
Proceeds.
2.7
Payment
of Proceeds. Trustor
shall cause all Insurance Proceeds, Condemnation Proceeds and Property Proceeds
(collectively, the "Proceeds") to be paid or delivered directly to Beneficiary.
Beneficiary shall at all times have the right but not the obligation (a) to
demand, collect, accept, receive and give receipts for any and all of the
Proceeds; and (b) to direct any Person to pay or deliver any or all of the
Proceeds directly to Beneficiary. Nothing contained in this Deed of Trust shall
be deemed to obligate Beneficiary to make any inquiry as to the sufficiency
of
any Proceeds received by Beneficiary. If for any reason Trustor receives any
Proceeds, Trustor (i) shall immediately pay or deliver such Proceeds to
Beneficiary in the original form in which received by Trustor; (ii) shall
endorse, with recourse, all checks, drafts, money orders, notes, and other
instruments or documents representing
such Proceeds to Beneficiary; (iii) shall not commingle such Proceeds with
any
of Trustor's other funds or property; and
(iv)
shall hold such Proceeds separate and apart from its other funds and property
in
an express trust for Beneficiary until paid or delivered to
Beneficiary.
2.8
Prosecution
and Settlement of Claims. Prior
to
the occurrence of any Event of Default, Trustor shall have a license to
prosecute and enforce the Insurance Claims, Condemnation Claims, and Property
Claims (collectively, the "Claims"). Beneficiary shall at all times have the
right to appear in, defend, and prosecute any action or proceeding arising
out
of or relating to any or all of the Claims if Beneficiary determines that such
action is necessary or appropriate to protect Beneficiary's interest in
connection with the Obligations. Upon the occurrence of an Event of Default,
Trustor's license to prosecute and enforce the Claims
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shall
be
revoked upon, and to the extent provided in, notice by Beneficiary to Trustor.
Following such revocation, Beneficiary, at its option, shall have the exclusive
right to prosecute and enforce any or all of the Claims to the extent provided
in Beneficiary's notice of
revocation and to compromise, adjust, settle or dismiss any or all of the
Claims, whether or not Beneficiary has taken possession
of the
Property. Without Beneficiary's prior written consent, Trustor shall not (a)
sell, transfer, pledge, hypothecate or otherwise dispose of or abandon any
or
all of the Claims; or (b) compromise, adjust, settle, or dismiss any or all
of
the Claims.
2.9
No
Liability by Beneficiary. Nothing
contained in this Deed of Trust shall be deemed to obligate Beneficiary to
prosecute or enforce any or all of the Claims nor shall Beneficiary have any
liability or responsibility for any failure or delay by Beneficiary in
prosecuting or enforcing any or all of the Claims or to collect any or all
of
the Proceeds. Trustor shall at all times have the right to determine and follow
its own policies and practices in the conduct of its business, subject to the
terms and conditions of the
Loan
Documents. Nothing contained in this Deed of Trust nor Beneficiary's receipt
of
any Proceeds shall result in any obligation
or
liability by Beneficiary for the performance or observance of any of the terms
of any document or Insurance Policies relating to any or all of the Claims
or
the Proceeds.
2.10
Application
of Proceeds. Beneficiary,
at its option, shall have the right (a) to apply any or all Proceeds received
by
Beneficiary to any or all of the Obligations in such order and manner as
Beneficiary shall determine, whether or not such Obligations are then due and
payable and without regard to the adequacy or impairment of the security for
the
Obligations; (b) to release any or all of the Proceeds received by Beneficiary
for payment of the costs of repair or reconstruction of the Property on such
terms and conditions as may be acceptable to Beneficiary; or (c) to release
any
or all of the Proceeds received by Beneficiary to Trustor on such terms and
conditions as may be acceptable to Beneficiary. If and to the extent that the
Note provides for Trustor's
payment of a prepayment charge, such prepayment charge shall not apply with
respect to principal prepayments resulting
from
Beneficiary's election to apply any Proceeds to the outstanding principal
balance of the Note. Provided that no Event of Default has occurred and is
continuing, Beneficiary shall permit Insurance Proceeds to be used for the
repair and reconstruction of the
Project, provided that the cost of such repair or reconstruction does not exceed
fifty percent (50%) of the full replacement cost of
the
Project and the conditions contained in Section 2.11 below are satisfied, as
reasonably determined by Beneficiary.
2.11
Release
of Proceeds for Reconstruction. Without
limiting the generality of Section 2.10 above, Trustor agrees that if
Beneficiary elects to release any Proceeds for repair or reconstruction of
the
Property, at Beneficiary's option, such release shall be conditioned on
Trustor's satisfaction of the following conditions within sixty (60) days after
the occurrence of the damage requiring the repair or reconstruction: (a)
Trustor's deposit with Beneficiary of such funds in addition to the Proceeds
as
Beneficiary determines to be necessary to pay all direct and indirect costs
relating to the repair or reconstruction of the Property; (b) the establishment
of a procedure acceptable to Beneficiary for Beneficiary's disbursement of
the
Proceeds; (c) Beneficiary's receipt and
approval
of final plans and specifications and a cost breakdown for the repair or
reconstruction of the Property; (d) Beneficiary's receipt and approval of (i)
a
general construction contract for the repair or reconstruction of the Property
executed by Trustor and a contractor
acceptable to Beneficiary; and (ii) payment and performance bonds written on
such general contractor issued by a surety
acceptable to Beneficiary; (e) evidence acceptable to Beneficiary that (i)
the
repair and reconstruction of the Property can be completed
and a final and unconditional certificate of occupancy for the Property can
be
issued not later than thirty (30) days before
the
maturity date of the Note; (ii) upon completion of the repair or reconstruction
of the Property, the income from the Property will be sufficient to pay all
Impositions, operating expenses of the Property and installment payments due
in
connection with the Loan and any Future Advances; (iii) leases acceptable to
Beneficiary will be in effect or remain in effect upon completion of the repair
or reconstruction of the Property; (iv) upon completion of the repair or
reconstruction of the Property, the fair market value of the Property will
be at
least as great as it was prior to the date on which the damage or condemnation
occurred as shown in an appraisal acceptable to Beneficiary; (v) there has
been
no adverse change in the financial condition of Trustor or any Guarantors since
the date of this Deed of Trust; and (vi) no Event of Default exists; and (f)
such additional conditions as Beneficiary may establish.
2.12
Taxes
and Impositions. Trustor
(a) shall pay all Taxes at least ten (10) days before delinquency; and (b)
shall
pay all other Impositions when due. Upon Beneficiary's request, Trustor shall
deliver to Beneficiary receipts and such other substantiating documentation
as
may be required by Beneficiary to evidence payment of all Impositions by Trustor
in accordance with this Section. Pursuant to Mo. Rev. Stat. §427.120, Trustor
acknowledges receipt of the following notice: "Unless you [Trustor] provide
evidence of the insurance coverage required by your agreement with us
[Beneficiary], we may purchase insurance at your expense to protect our
interests in your collateral. This insurance may, but need not, protect your
interests. The coverage that we purchase may not pay any claim that you make
or
any claim that is made against you in connection with the collateral. You may
later cancel any insurance purchased by us, but only after providing evidence
that you have obtained insurance as required by our agreement. If we purchase
insurance for the collateral, you will be responsible for the costs of that
insurance, including the insurance premium, interest and any other charges
we
may impose in connection with the placement of the insurance, until the
effective date of the cancellation or expiration of the insurance. The costs
of
the insurance may be added to your total outstanding balance or obligation.
The
costs of the insurance may be more than the cost of insurance you may be able
to
obtain on your own."
If
Trustor fails to maintain any insurance required hereunder or under the other
Loan Documents or fails to provide evidence of such insurance as required
hereunder or under the other Loan Documents, Beneficiary may, but shall not
be
obligated to, purchase such required insurance at Trustor's expense to protect
its interests in the Property. This insurance may, but need not, protect the
Trustor's interests in the Property. The coverage that Beneficiary purchases
shall not be required to pay any claim that the Trustor makes or any claim
that
is made against the Trustor in connection with the Property. The Trustor may
later cancel any insurance purchased by Beneficiary, but only after providing
evidence that the Trustor has obtained the insurance required hereunder and
under any other Loan Document. If Beneficiary purchases insurance for the
Property, Trustor will be responsible for the costs of the insurance, including
the insurance premium, interest thereon from the date of each such payment
or
expenditure at the then applicable rate under the Note and any other charges
Beneficiary may impose in connection with the placement of the
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insurance,
until the effective date of the cancellation or expiration of the insurance.
All
sums so paid or expended by Beneficiary, the interest thereon and the other
charges in connection therewith shall be added to the Obligations and shall
be
secured by the lien of this Deed of Trust. The costs of the insurance obtained
by the Beneficiary may be more than the cost of insurance Trustor may be
able to
obtain on its own. Unless Beneficiary otherwise agrees in writing, the Trustor
shall pay to Beneficiary the full costs of such insurance, together with
the
accrued interest thereon and the other charges in connection therewith, within
thirty (30) days after "Notice of Placement of Insurance" as required by
Mo.
Rev. Stat. 427.125.
2.13
Impounds.
(a) Impound
Account.
If
Trustor fails to pay any of the Impositions when due, upon ten (10) days prior
written notice by Beneficiary to Trustor, Beneficiary, at its option, shall
have
the right to require Trustor to deposit with Beneficiary, in monthly
installments, an amount equal to one-twelfth (1/12th) of the estimated aggregate
annual Impositions, as determined by Beneficiary. If Beneficiary exercises
its
right to require Trustor to make such deposits with Beneficiary, Trustor shall
deliver to Beneficiary all bills, statements, and invoices relating to the
Impositions immediately upon Trustor's receipt of such items. The amounts
deposited by Trustor with Beneficiary pursuant to this Section 2.13
(collectively, the "Impound Funds") (i) shall not be deemed to be held by
Beneficiary in trust or as agent of Trustor; (ii) shall not bear interest,
except as otherwise expressly required by law; (iii) shall be applied by
Beneficiary to the payment of the Impositions in such order of priority as
Beneficiary shall determine, provided Trustor has delivered to Beneficiary
the
appropriate bills, statements and invoices relating to the Impositions not
later
than thirty (30) days prior to the due date thereof; and (iv) may be commingled
by Beneficiary with its general funds. If, at any time within thirty (30) days
prior to the due date of any of the Impositions, Beneficiary determines that
the
Impound Funds then held by Beneficiary are insufficient to pay such Impositions
in full, upon Beneficiary's demand, Trustor shall deposit with Beneficiary
the
amount of such deficiency, as determined by Beneficiary. If the Impound Funds
held by Beneficiary exceed the amount necessary to discharge the Impositions
for
which such Impound Funds were deposited, Beneficiary, at its option, may either
refund such excess to Trustor or may hold such excess and reduce proportionately
the periodic deposits required to be made by Trustor for payment of the
Impositions.
(b) Security
Interest.
Trustor
grants a security interest to Beneficiary in all Impound Funds deposited by
Trustor with Beneficiary under this Section 2.13 to secure the Obligations.
Upon
the occurrence of any Event of Default, Beneficiary, at its option and without
regard to the adequacy of any other collateral securing the Obligations, shall
have the right to apply any or all of the Impound Funds to any or all of the
Obligations in such amounts and order as Beneficiary may determine.
(c) Assignment:
Reconvevance.
If
Beneficiary assigns this Deed of Trust, Beneficiary shall have the right to
transfer all Impound Funds held by Beneficiary to Beneficiary's assignee. Upon
such transfer, Beneficiary shall have no further liability of any kind with
respect to the Impound Funds, and Beneficiary's assignee shall be deemed to
have
assumed all liabilities of Beneficiary with respect to the Impound Funds.
Following full payment and performance of all of the Obligations and the
reconveyance of the Property under this Deed of Trust, Beneficiary shall refund
to Trustor any Impound Funds then held by Beneficiary.
(d) No
Liability for Insufficient Impound Funds. Nothing
contained in this Section 2.13 shall be deemed (i)
to
require Beneficiary to pay any amounts on account of any Impositions in excess
of the Impound Funds held by Beneficiary; or (ii) to impair, prejudice or
otherwise affect any of Beneficiary's rights or remedies under this Deed of
Trust or under applicable law to pay any or all of the Impositions if the
Impound Funds then held by Beneficiary are insufficient for such purposes and
to
add the amount paid by Beneficiary to the Obligations.
2.14
Absolute
Assignment of Rents and Profits.
(a) Absolute
Assignment. Trustor
absolutely, irrevocably and unconditionally grants, transfers and assigns to
Beneficiary all Rents and Profits. Prior to the occurrence of an Event of
Default, Trustor shall have a license to collect and retain on the terms of
this
Section 2.14 all Rents and Profits as they become due and payable. Upon the
occurrence of an Event of Default, Trustor's license to collect the Rents and
Profits shall automatically be revoked without notice to Trustor. Following
such
revocation, Beneficiary shall be entitled to collect and retain all Rents and
Profits, whether or not Beneficiary has taken possession of the Property, and
Trustor shall immediately pay or deliver to Beneficiary any Rents and Profits
then held or thereafter collected by Trustor. All Rents and Profits collected
by
or on behalf of Beneficiary may be applied by Beneficiary to the Obligations
in
such order and amounts as Beneficiary may determine. If Beneficiary elects
to
seek the appointment of a receiver following the occurrence of an Event of
Default, Trustor irrevocably and unconditionally consents to the appointment
of
a receiver without regard to the adequacy of the security for any of the
Obligations. Notwithstanding anything to the contrary contained in this Deed
of
Trust, the assignment of Rents and Profits contained in this Section is an
absolute assignment and not an assignment as security. Neither the assignment
of
Rents and Profits contained in this Section nor any action taken by Beneficiary
to collect the Rents and Profits shall be deemed to make Beneficiary a
mortgagee-in-possession of the Property or shall be deemed to render Beneficiary
directly or indirectly liable or responsible for (i) the use, control,
condition, care, operation, occupancy, management, repair, or leasing of the
Property; (ii) the production of Rents and Profits from the Property; or (iii)
the performance or observance of any or all of Trustor's duties, obligations,
representations, or warranties under any Leases or other agreements relating
to
the Rents and Profits. Beneficiary shall have no responsibility or liability
of
any kind for any failure or delay by Beneficiary in enforcing any of the terms
or conditions of this Section 2.14.
(b) Applications
of Rents and Profits Prior to Revocation of License.
Trustor
shall apply the Rents and Profits to the payment of all reasonable and necessary
operating costs and expenses of the Property, installment payments due in
connection with the Loan and any Future Advances, payment of Impositions, and
a
reasonable reserve for future reasonable and
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necessary
expenses, repairs and replacements relating to the Property before using the
Rents and Profits for any other purpose which does not directly benefit the
Property.
(c)
Notices
to Tenants. Upon
revocation of the license described in Section 2.14(a) above, Trustor
irrevocably authorizes and directs all Tenants under the Leases to comply with
any notice or demand by Beneficiary for payment to Beneficiary of any Rents
and
Profits or for the performance of any of the Tenant's other respective
obligations under the Leases, regardless of any conflicting demand by Trustor
or
notice by Trustor to any Tenant that Beneficiary's demand is invalid or
wrongful. No Tenant shall have any duty to inquire as to whether any default
by
Trustor has occurred under the Loan Documents in connection with any notice
or
demand by Beneficiary under this Section.
2.15
Sales.
Transfers. and Further Encumbrances. Beneficiary
shall have the right, at its option and without notice to or demand on Trustor,
to declare any or all Obligations to be immediately due and payable if any
of
the following events occurs without Beneficiary's prior written consent: (a)
the
sale, conveyance, transfer, mortgage, encumbrance, lease or alienation of all
or
any part of the Property or any interest in the Property, whether voluntary
or
involuntary, or Trustor's grant of any option or agreement to effect any such
transaction; (b) if Trustor or any General Partner or Manager of Trustor is
a
partnership, the admission, withdrawal, retirement or removal of any general
partner of Trustor or any of Trustor's General Partners or Managers, or the
sale
or transfer of more than twenty-five percent (25%) of the beneficial interests
in Trustor or any of Trustor's General Partners or Managers; (c) if Trustor
or
any General Partner or Manager of Trustor is a corporation, the sale or transfer
of an aggregate of more than twenty-five percent (25%) of any class of stock
in
such corporation or the issuance by such corporation of additional stock to
any
Person who is not a shareholder in such corporation as of the date of this
Deed
of Trust; (d) if Trustor or any General Partner or Manager of Trustor is a
limited liability company, the appointment, withdrawal, retirement or removal
of
any Manager of Trustor or any of Trustor's General Partners or Managers or
the
sale or transfer of more than twenty-five percent (25%) of the beneficial
interests in Trustor or any of Trustor's General Partners or Managers; (e)
if
Trustor or any of Trustor's General Partners or Managers is a corporation,
partnership, or limited liability company, the dissolution or liquidation of
Trustor or any of Trustor's General Partners or Managers; or (f) any change
in
the character or use of all or part of the Property, including drilling for
or
the extraction of oil, gas or any other hydrocarbon substance or the lease
of
all or any part of the Property for any such purpose. Without limiting the
generality of any provision of this Deed of Trust (including Section 6.8 below),
Beneficiary's consent to any or all of the events described in this Section
may
be withheld by Beneficiary in its sole and absolute discretion. Beneficiary's
consent to any event described in this Section shall not be deemed to be a
consent to, or a waiver of the right to require such consent for, any other
event. For purposes of this Deed of Trust, (i) the term "partnership" includes
a
general partnership, limited partnership, limited liability partnership, and
joint venture; and (ii) the term "Manager" means any Person who is acting as
a
manager of a limited liability company, including any member who is acting
in
such capacity.
2.16
Reauest
for Beneficiary's Consent to Transfers. All
requests by Trustor for Beneficiary's
consent
under Section 2.15 above (a) shall specifically describe the transaction with
respect to which Beneficiary's consent is requested; (b) shall be delivered
to
Beneficiary not less than sixty (60) days before Trustor proposes to take the
action with respect to which Beneficiary's consent is requested; (c) shall
be
accompanied by complete and accurate copies of all documents relating to the
transaction with respect to which Beneficiary's consent is requested, including
financial statements and other information regarding the proposed transferee;
and (d) shall be accompanied by a non-refundable review fee payable to
Beneficiary in an amount required by Beneficiary, which amount shall not be
less
than $1,500. Trustor acknowledges and agrees that Beneficiary's
right
to withhold its consent, in its sole and absolute discretion, to any or all
of
the events described in Section 2.15 above is based, in part, on the fact that
Trustor's particular financial condition, credit history, character, experience,
ability and expertise, as represented by Trustor to Beneficiary, were material
and important factors in Beneficiary's decision to make the Loan, and that
Beneficiary will continue to rely on such matters to insure satisfactory
compliance with the Loan Documents during the entire term of the Loan. If
Beneficiary, in its sole and absolute discretion, consents to any of the
transactions described in Section 2.15 above, (i) such consent shall not be
deemed to release Trustor or any other Person liable for payment or performance
of the Obligations, and Trustor and such Persons shall continue to remain liable
for payment and performance of the Obligations in accordance with the terms
of
the Loan Documents; and (ii) such consent shall be conditioned on [A] the
payment to Beneficiary of all costs, fees, and expenses incurred by Beneficiary
in connection with its review, analysis, and preparation of documents with
respect to the proposed transaction, including all attomeys' fees and costs
incurred by Beneficiary; and [B] the satisfaction of such other conditions
as
Beneficiary, in its sole and absolute discretion, may establish in connection
with the proposed transaction. Nothing contained in this Section constitutes
or
shall be construed as an agreement by Beneficiary to consent to any or all
of
the transactions described in Section 2.15 above or to impair or otherwise
affect in any way Beneficiary's right to withhold its consent to any or all
of
such transactions in Beneficiary's
sole
and absolute discretion.
2.17
Subordinate
Mortaaaes. If
Beneficiary consents to any other Lien on the Property ("Subordinate Mortgage"),
or if the prohibition on Trustor's execution of any Subordinate Mortgage is
unenforceable under applicable law, Trustor shall not execute any Subordinate
Mortgage unless Trustor has first delivered to Beneficiary a written agreement,
acceptable to Beneficiary, executed by the holder of the Subordinate Mortgage
which provides that (a) the Subordinate Mortgage is and shall at all times
remain unconditionally subject and subordinate to this Deed of Trust; (b) if
any
action or proceeding is commenced to foreclose the Subordinate Mortgage, no
Tenant under any Lease shall be named as a defendant in such action or
proceeding, nor shall such action or proceeding terminate any Lease, without
Beneficiary's prior written consent; (c) all Rents and Profits, whether
collected directly by the holder of the Subordinate Mortgage or through a
receiver, shall be applied first to the Obligations, second to the payment
of
the Impositions, and thereafter to payment of maintenance and operating costs
relating to the Property; and (d) the holder of the Subordinate Mortgage shall
give written notice to Beneficiary not later than ten (10) days prior to
commencing any judicial or nonjudicial action or proceeding to foreclose the
Subordinate Mortgage. Trustor acknowledges and agrees that Beneficiary's
determination as to whether or not to grant its consent to any proposed
Subordinate Mortgage shall be based upon, among other things, the debt coverage
ratio of the combined Obligations secured by this Deed of Trust and the
indebtedness to be
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2.18
Fixtures. Notwithstanding
Section 2.15 above, Trustor may from time to time replace any Fixtures
constituting a part of the Property, provided that prior to the replacement
of
such Fixtures, Trustor shall provide Beneficiary with evidence acceptable to
Beneficiary that (a) the replacement property for such Fixtures is at least
equivalent in value, character, and quality to the Fixtures being replaced;
(b)
Trustor has good and marketable title to such replacement property free and
clear of all liens, claims, and interests other than the lien of this Deed
of
Trust; and (c) this Deed of Trust shall constitute a first lien on such
replacement Property.
2.19
Permitted
Leasinq. Notwithstanding
Section 2.15 above, Trustor shall have the right to enter into Leases without
Beneficiary's prior written consent, provided that all of the following
conditions are satisfied: (a) the term of such Lease, including any extension
or
renewal options, does not exceed a total of five (5) years; (b) the form used
for such Lease has been approved in writing by Beneficiary prior to Trustor's
execution of the Lease, such form has not been modified, amended or supplemented
in any material respect, and Beneficiary's approval of such form has not been
modified or revoked at the time the Lease is executed by Trustor; (c) the rental
and all other charges under such Lease are not more favorable to the Tenant
than
pro forma rental and other charges
which have been approved in writing by Beneficiary not more than six (6) months
prior to Trustor's execution of such Lease, and
such
approval has not been modified or revoked at the time the Lease is executed
by
Trustor; (d) such Lease is unconditionally
subordinate to this Deed of Trust and contains an attomment provision consistent
with Section 2.21 below; (e) no Event of Default has occurred prior to Trustor's
execution of such Lease; and (f) Trustor provides Beneficiary with an accurate
and complete copy of such Lease within five (5) business days after such Lease
is executed by Trustor.
2.20
Leases. Upon
Beneficiary's request, Trustor shall execute, acknowledge and deliver to
Beneficiary an absolute and unconditional assignment acceptable to Beneficiary
of all of Trustor's interests in all Leases and all guaranties of and security
for the Tenants' respective obligations under the Leases.
2.21
Attornment
at Beneficiary's Option. Each
Tenant who enters into a Lease for the Property after the date of recordation
of
this Deed of Trust (each such Lease is referred to as a "Subordinate Lease")
and
who has not entered into a written non-disturbance and attornment agreement
with
Beneficiary shall be deemed to have agreed to attom to Beneficiary and accept
Beneficiary as the landlord under its Lease on the terms of this Section. If
Beneficiary acquires title to the Property by judicial or nonjudicial
foreclosure under this Deed of Trust or by deed in lieu of foreclosure under
this Deed of Trust, Beneficiary, at its option, shall
have the right to require any or all Tenants under Subordinate Leases to attorn
to and accept Beneficiary as the landlord under
such
Tenant's Subordinate Lease (the "Attornment Option") by giving written notice
to
such Tenant within thirty (30) days after the date on which Beneficiary acquires
title to the Property (the "Acquisition Date"). If Beneficiary exercises the
Attomment Option with respect to any Subordinate Lease, such attomment shall
be
effective and self-operative as of the Acquisition Date without the execution
of any further documents on the part of the Tenant, Beneficiary, or any other
party, and the Tenant under the Subordinate
Lease
shall be bound to Beneficiary under all of the terms, covenants, and conditions
of the Subordinate Lease for the remaining balance of the term thereof, with
the
same force and effect as if Beneficiary were the landlord under such Lease.
Whether or not Beneficiary exercises its Attornment Option with respect to
any
Subordinate Lease, Beneficiary (a) shall not be liable for any act or omission
of any prior landlord under any Subordinate Lease, including Trustor; (b) shall
not be subject to any offset, defense, or claim which any Tenant may have
against any prior landlord under any Subordinate Lease, including Trustor;
(c)
shall not be obligated (i) to return any security deposit now or hereafter
paid
by any Tenant; (ii) to return any prepaid rent or other amounts prepaid by
any
Tenant; or (iii) to grant any Tenant a credit for any such security deposit,
prepaid rent or other prepaid amounts (excluding monthly rent and other charges
which have not been prepaid for more than one month in advance), except to
the
extent, if any, that Beneficiary has actually and unconditionally received
such
security deposit, prepaid rent or other prepaid amounts; and (d) shall not
be
obligated to complete the construction of any or all Improvements. Without
limiting the terms of this Section, upon Beneficiary's request, each Tenant
under a Subordinate Lease shall execute and deliver to Beneficiary any document
which Beneficiary determines to be necessary or appropriate to evidence such
Xxxxxx's attornment to Beneficiary on the terms of this Section, including
a new
lease with Beneficiary on the same terms and conditions as the Subordinate
Lease
for a term equal to the unexpired term of the Subordinate Lease. Nothing
contained in this Section shall be deemed to obligate Beneficiary to recognize
any Subordinate Lease or accept an attornment by any Tenant upon Beneficiary's
acquisition of title to the Property. If Beneficiary elects not to exercise
the
Attornment Option within the time period specified in this Section with respect
to any Subordinate Lease, such
Subordinate Lease and all of the rights, privileges and powers of the Tenant
thereunder shall automatically terminate and shall
be of no
further force or effect from and after the Acquisition Date.
2.22
Compliance
with Leases. Trustor
(a) shall perform all obligations of the landlord under the Leases and shall
not
permit or suffer any default by Trustor under the terms of any of the Leases;
and (b) shall diligently enforce all remedies available to Trustor in the event
of a default by any Tenant under any of the Leases.
2.23
Termination
or Modification of Leases. Without
Beneficiary's prior written consent, and except as otherwise expressly permitted
by the Loan Documents, Trustor shall not (a) terminate, cancel, accept a
surrender of, modify, amend or waive any of Trustor's rights under any of the
Leases, except cancellation of a Lease based on a material default by the Tenant
thereunder; (b) collect rent under any of the Leases for more than one (1)
month
in advance; (c) agree to subordinate any of the Leases to any other Lien; (d)
discount the rent or other amounts payable under any of the Leases or release
any Tenant or any other party liable for the performance of any Tenant's
obligations under any of the Leases; (e) consent to any sublease or to the
assignment
of all or part of any Tenant's interest under the Leases; or (f) in any other
manner impair Beneficiary's rights with respect
to or
interest in the Rents and Profits. Any attempted termination, cancellation,
surrender, modification, amendment, or subordination of a Lease in violation
of
this Section shall be void. Trustor shall give immediate written notice to
Beneficiary of (i) any
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2.24
Financial
Statements: Books and Records: Estoppel Certificates.
(a) Financial
Statements. Within
ninety (90) days after the close of Trustor's fiscal year, Trustor shall deliver
to Beneficiary a balance sheet and a statement of profit and loss for Trustor
for such fiscal year. Within ninety (90) days after the close of the fiscal
year
for (a) each Guarantor; (b) each general partner of Trustor ("General Partner"),
if Trustor is a partnership; (c) each Manager of Trustor, if Trustor is a
limited liability company; and (d) each Person who is affiliated with Trustor
and who occupies or operates a business on all or a part of the Property
("Affiliate"), Trustor shall cause each such Guarantor, General Partner,
Manager, and Affiliate to provide Beneficiary with a balance sheet and a
statement of profit and loss for such Guarantor, General Partner, Manager and
Affiliate for such fiscal year. Trustor shall cause all financial statements
furnished to Beneficiary under this Section to be certified by the party to
whom
such statements apply. If Trustor or any Guarantor, General Partner or Manager
has audited financial statements prepared, Trustor shall cause a copy of such
audited financial statements to be delivered to Beneficiary within thirty (30)
days after such statements are received by Trustor or the Person to whom such
statements apply. Trustor and each Person whose financial statements are
provided to Beneficiary under this Section shall, by submitting such
statements
to Beneficiary, be conclusively deemed to have certified to Beneficiary, in
addition to any other certifications contained in
such
statements, that the financial statements furnished to Beneficiary (i) are
accurate and complete in all respects as of the dates appearing thereon; (ii)
present fairly the financial condition and results of operations of the Person
to whom the statements apply as of the date and for the period shown in such
statements; and (iii) disclose all suits, actions, proceedings and contingent
liabilities affecting the Person to whom the financial statements apply. Trustor
shall provide Beneficiary with such other information concerning the financial
condition and affairs of Trustor, the Guarantors, the General Partners,
Managers, and any Affiliate as Beneficiary may require within ten (10) business
days after Beneficiary's request for such information. Trustor shall deliver
to
Beneficiary,
or cause to be delivered to Beneficiary, a complete and accurate copy of each
federal income tax return filed by Trustor
and any
Guarantor, General Partner, Manager, and Affiliate within thirty (30) days
after
the date on which each such return is filed. For purposes of this Deed of Trust,
the term "Affiliate" shall include the following Persons who occupy or operate
a
business on all or part of the Property: [1] any Person who directly or
indirectly controls, is controlled by, or is under common control with Trustor,
any
Guarantor, or any General Partner or Manager; [2] any Person, five percent
(5%)
or more of the outstanding securities or equity
interests of which are held beneficially or of record by Trustor, any Guarantor,
or any General Partner or Manager; [3] any shareholder, officer, director,
or
agent of Trustor, any Guarantor, or any General Partner or Manager; or [4]
if
Trustor, any Guarantor, or any General Partner or Manager is an officer,
director, or partner of any partnership or corporation other than Trustor,
the
partnership or corporation for which such Person acts in such capacity. For
purposes of this Section, the term "control" means the direct or indirect power
or effective ability to cause the direction of the management or policies of
any
Person, whether through the ownership of voting securities, by contract, family
relationship, or otherwise.
(b) Operating
Statements.
If the
Property consists of a Commercial Project, within thirty (30) days after the
end
of each calendar year, and within ten (10) business days after Beneficiary's
request from time to time, Trustor shall deliver to Beneficiary an accurate
and
complete annual operating statement for the Property for the immediately
preceding calendar year or twelve
(12) month period, as applicable. All such operating statements shall be in
a
form acceptable to Beneficiary and shall contain
such
detail as Beneficiary may require to provide Beneficiary with a complete and
accurate statement of all income, receipts, payments,
rents, reimbursements, deposits, and other revenues of every kind from the
Property and all operating expenses of every
kind
paid or incurred with respect to the Property, including taxes, insurance,
utilities, salaries, wages and personnel costs, leasing costs and commissions,
maintenance and repair costs, legal and accounting fees and expenses,
advertising and promotion costs, management fees, and expenditures for capital
improvements. Each operating statement delivered by Trustor to Beneficiary
under
this Section shall be signed by Trustor and shall be certified as being accurate
and complete by Trustor. At any time after Beneficiary's receipt of any of
the
operating statements described in this Section or in Section 2.24(e) below,
within ten (10) business days after Beneficiary's request, Trustor shall deliver
to Beneficiary copies of such invoices, bank statements, canceled checks, and
other supporting documentation as Beneficiary may designate to substantiate
any
or all matters reflected in the operating statements received by
Beneficiary.
(c) Rental
Statements. If
the
Property consists of a Commercial Project, within thirty (30) days after the
end
of each calendar year, and within ten (10) business days after Beneficiary's
request from time to time, Trustor shall deliver to Beneficiary an accurate
and
complete rent statement for the Property (the "Rent Statement") as of the last
day of the most recent calendar month showing (i) the leasing status of all
space in the Buildings, including information as to whether such space is vacant
or subject to a Lease; and (ii) with respect to each space in the Buildings
that
has been leased, [A] the name of the Tenant renting the space; [B] the premises
occupied by each of the Tenants; [C] the current monthly rent and all other
amounts payable by such Tenant under such Lease; [D] the total amount of all
prepaid rent received by Trustor from such Tenant; [E] the total amount of
any
security
deposit or other deposit received by Trustor from such Tenant; [F] the
expiration date of the term of such Lease or nature of
the
tenancy under such Lease; [G] the rent payment dates and the amount of any
delinquent rent or other payments owing by such Tenant; [H] extension or renewal
options under the Leases; [I] any rent or other concessions granted to, and
any
claims or offsets asserted by, any Tenants; and [J] such other information
as
Beneficiary may designate. Each Rent Statement delivered by Trustor to
Beneficiary under this Section or Section 2.24(e) below shall be signed by
Trustor and shall be certified as being accurate and complete by Trustor.
Trustor shall provide Beneficiary with the Rent Statements described in this
Section whether the Buildings are occupied by one or more Affiliates, a single
tenant or user, or multiple tenants or users.
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(d) Books
and Records. If
the
Property consists of a Commercial Project, Trustor shall keep and maintain
complete and accurate Books and Records at Trustor's principal place of
business, and Trustor shall not remove the Books and Records from such location
without Beneficiary's prior written consent. Beneficiary shall have access
to
the Books and Records at all reasonable times for the purposes of examination,
inspection, verification, copying and for any other reasonable purpose. The
Books and Records shall include a complete and accurate record of all costs
incurred and payments made in connection with the design, construction,
improvement, development, use, ownership, operation, maintenance, repair, and
marketing of the Property. If (i) Trustor fails to provide Beneficiary with
any
annual financial statement or income tax return, annual operating statement,
or
annual Rent Statement which Trustor is required to deliver to Beneficiary under
Sections 2.24(a), 2.24(b) and 2.24(c) above within the required time period;
and
(ii) Trustor fails to cure such failure within thirty (30) days after the date
on which the latter of two separate written notices is given by Beneficiary
to
Trustor (the second of which shall be given by Beneficiary not sooner than
ten
(10) days after the date on which the first of such notices is given) notifying
Trustor of such failure and of the fact that a late charge will be imposed
on
Trustor if Trustor fails to cure the failure within the time provided by this
Section, then Trustor shall immediately pay a late charge to Beneficiary equal
to $2,500 to compensate Beneficiary for administrative costs and expenses
incurred in connection with such late performance by Trustor. Trustor agrees
that the actual damages suffered by Beneficiary because of any failure to
deliver the information described in the immediately preceding sentence are
extremely difficult and impracticable to ascertain, and the late charge
described in this Section represents a reasonable attempt to fix such damages
under the circumstances existing at the time this Deed of Trust is executed.
Beneficiary's acceptance of any late charge shall not constitute a waiver of
any
breach by Trustor of its obligation to provide the information required by
Section 2.24 of this Deed of Trust or any of the other terms of the Loan
Documents and shall not affect Beneficiary's right to enforce any of its rights
and remedies against Trustor or any other any Person under the Loan
Documents.
(e) Additional
Reports and Information. If
the
Property consists of a Commercial Project, within ten (10) business days after
Beneficiary's request from time to time, Trustor shall deliver to Beneficiary
such additional information available to Trustor and reports as Beneficiary
may
request concerning the Property and the business and affairs of Trustor or
any
Guarantor, General Partner, Manager, Tenant, or Affiliate that Beneficiary
may
request, including (i) a balance sheet and profit and loss statement for the
most recent fiscal year and for the most recent fiscal year-to-date quarterly
period or periods of Trustor or any Guarantor, General Partner, Manager, Tenant,
or Affiliate, each of which shall be certified and otherwise prepared in
accordance with the requirements of Section 2.24(a) above; (ii) monthly
operating statements from Trustor for the Property for each calendar month
containing the same detailed information required to be included in the
operating statements described in Section 2.24(b) above; (iii) monthly Rent
Statements from Trustor for the Property for each calendar month containing
the
same detailed information required to be included in the Rent Statements
described in Section 2.24(c) above; (iv) copies of all financial statements
and
reports that Trustor sends to its partners or shareholders, if any; (v) copies
of all reports which are available for public inspection or which Trustor is
required to file with any Governmental Authorities; (vi) a certificate executed
by Trustor, dated within ten (10) business days of the date of delivery of
such
certificate to Beneficiary, stating that Trustor knows of no Event of Default
under the Loan Documents or, if an Event of Default exists, stating the nature
of the default and what action Trustor has taken or proposes to take with
respect to such Event of Default; (vii) complete and accurate as-built plans
for
all Buildings located on the Land; (viii) complete and accurate copies of all
Leases and any currently effective letters of intent or proposals to lease
all
or part of the Property received or made by or behalf of Trustor; and (ix)
the
most recent years' federal income tax returns for Trustor or any Guarantor,
General Partner, Manager, or Affiliate. All financial statements that are
required to be provided to Beneficiary under this Section 2.24 shall be on
Beneficiary's standard form of financial statement, unless Beneficiary
specifically requires or approves an alternate form, in which case such
financial statements shall be provided on such alternate form. Beneficiary
may
exercise its rights to require additional reports and information under this
Section at any time and from time to time on such periodic basis as Beneficiary
shall determine to be necessary or appropriate, including annual requests on
the
anniversary of the date of recordation of this Deed of Trust.
(f) Notice
of Certain Matters. Trustor
shall promptly notify Beneficiary in writing of (i) any claim, demand, right,
or
Lien relating to the Property which may be adverse to the lien of this Deed
of
Trust; (ii) any material loss, depreciation, or adverse change in the value
of
the Property and any other occurrence which may materially and adversely affect
Beneficiary's lien on the Property; (iii) any adverse change in Trustor's
ability to perform any or all of the Obligations; (iv) any event or condition
which constitutes an Event of Default; and (v) any dispute between Trustor
and
any Governmental Authority relating to the Property which may have a material
adverse effect on the Property.
(g) Estoppel
Certificates.
Within
ten (10) business days after Beneficiary's request, Trustor shall deliver to
Beneficiary a written statement signed and acknowledged by Trustor stating
(i)
the amount of all monetary Obligations secured by this Deed of Trust; (ii)
whether Trustor contends that any offsets or defenses exist against the
Obligations secured by this Deed of Trust and whether Trustor has any claims
of
any kind against Beneficiary; and (iii) such other information with respect
to
the Obligations or the Loan Documents as Beneficiary may reasonably require,
including evidence acceptable to Beneficiary of Trustor's compliance with any
of
the terms of the Loan Documents which are specifically identified in
Beneficiary's request. With respect to all statements, information and reports
that Trustor submits to Beneficiary pursuant to this Deed of Trust, including
pursuant to this Section 2.24, Trustor shall be deemed conclusively to have
certified to Beneficiary, whether or not such statements, information or reports
have been signed by Trustor, that [A] such statements, information and reports
are accurate and complete in all material respects as of the date or for such
periods as may be shown in the statements, information, and reports; and [B]
such statements, information, and reports do not omit to state any facts or
other information so as to make the statements, information, or reports
submitted to Beneficiary misleading in any material respect.
2.25
Inspection
and Investigations. Beneficiary
shall have the right at all reasonable times (a) to enter upon and inspect
the
Property, including any entry which Beneficiary determines is necessary or
appropriate in connection with enforcing or exercising any right, remedy or
power available to or conferred on Beneficiary under the Loan Documents; (b)
to
contact any Person to verify any information provided or disclosed by Trustor
to
Beneficiary; and (c) to release such information regarding the
Property,
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2.26
Defense
of Actions and Protection of Security by Trustor. Trustor
shall appear in and defend any action or proceeding commenced by any Person
other than Beneficiary which affects or which Beneficiary determines may affect
any or all of the following: (a) the Property; (b) the Insurance Claims,
Condemnation Claims, or Property Claims; (c) Beneficiary's, Trustee's
or
Trustor's respective rights and obligations under the Loan Documents; (d) the
Obligations; or (e) any other transaction or matter which affects Beneficiary
by
reason of its interest in the Property. Trustor shall promptly commence and
diligently prosecute all actions and proceedings which are necessary or
appropriate or which Beneficiary determines may be necessary or appropriate
to
do any or all of the following: (i) prevent any damage, destruction, or injury
to the Property; (ii) enforce or recover upon the Insurance Claims, Condemnation
Claims or Property Claims or collect the Insurance Proceeds, Condemnation
Proceeds, or Property Proceeds; or (iii) to preserve, protect, maintain, and
defend the Property and Beneficiary's lien thereon.
2.27
Leasehold
Estates.
(b) Leasehold
Estate. Whenever
the context of this Deed of Trust so requires, the term Property shall be deemed
to include the leasehold estate under the Ground Lease and any other interest
of
Trustor in the real property which is the subject of the Ground
Lease.
(a) Trustor's
Obligations under Ground Lease. If
this
Deed of Trust encumbers a Ground Lease, Trustor (i) shall perform all
obligations of the tenant under the Ground Lease and shall not permit or
suffer
any default by Trustor under the terms of the Ground Lease; (ii) shall not
amend, modify, terminate, cancel, or surrender its interest in the Ground
Lease
without Beneficiary's prior written consent; (iii) shall give immediate written
notice to Beneficiary of [1] any default by the landlord under the Ground
Lease
(the "Lessor"); [2] any notice received by Trustor from the Lessor of any
default by Trustor under the Ground Lease; and [3] any other default by Trustor
under the Ground Lease of which Trustor is aware; and (iv) shall furnish
to
Beneficiary all information which Beneficiary may require regarding Trustor's
performance under the Ground Lease.
(c) Acquisition
of Title.
If
Trustor shall, directly or indirectly, acquire fee title or any other estate
or
interest in the real property which is the subject of the Ground Lease, this
Deed of Trust shall attach to and encumber such fee title or other estate or
interest without further action by Trustor, Trustee or Beneficiary.
(d) No
Merger.
There
shall be no merger of the leasehold estate arising under the Ground Lease with
all or any portion of the fee estate in the real property which is the subject
of the Ground Lease by reason of the fact that such leasehold estate may be
held
by any Person who shall hold all or any portion of such fee estate in the real
property which is the subject of the Ground Lease, unless Beneficiary shall
expressly agree otherwise in writing.
(e) Cure
Rights.
If
Trustor fails to perform any of its obligations as tenant under the Ground
Lease, Beneficiary shall have the right to pay or perform any or all of such
obligations in such manner and to such extent as Beneficiary determines to
be
necessary or appropriate to preserve or protect the security for the
Obligations. All costs and expenses, including without limitation attorneys'
fees, incurred by Beneficiary in connection with the payment or performance
of
such obligations shall be payable by Trustor to Beneficiary on Beneficiary's
demand, shall bear interest at the rate specified in the Note from the date
of
expenditure,
and shall be deemed to be secured by this Deed of Trust and all other agreements
given by Trustor to secure the Note.
Nothing
contained in this Deed of Trust shall be construed to obligate Beneficiary
to
pay or perform any of Trustor's obligations under the Ground Lease, and no
election by Beneficiary to pay or perform such obligations shall constitute
a
waiver of any default by Trustor under this Deed of Trust.
2.28
Enforcement
of Covenants and Restrictions. If
any of
the Covenants and Restrictions apply to Persons owning or occupying real
property which is adjacent to or in the vicinity of the Property, Trustor shall
diligently enforce the Covenants and Restrictions against such Persons if (a)
such Persons have breached their obligations under the Covenants and
Restrictions; and (b) such breach has not been cured by such Persons within
ninety (90) days after a request by Beneficiary to Trustor to enforce the
Covenants and Restrictions.
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2.29
Agricultural
Property.
If the
Property consists in whole or in part of agricultural property, Trustor (a)
shall farm the same using good and proper practices of husbandry; (b) shall
keep
all crops, trees and vines on the Property properly cultivated, irrigated,
fertilized, sprayed, fumigated and maintained; and (c) shall promptly replace
all dead or unproductive crops, trees or vines.
2.30
Further
Assurances.
Upon
Beneficiary's request, Trustor shall execute, acknowledge and deliver to
Beneficiary such further documents and agreements and take such further actions
as Beneficiary may reasonably require from time to time to effectuate or carry
out the purposes of the Loan Documents or to evidence, perfect, maintain,
preserve or protect Beneficiary's lien on the Property, including Trustor's
execution of security agreements, assignments, financing statements, and
continuation financing statements. Upon Beneficiary's request, Trustor shall
execute, acknowledge and deliver to Beneficiary an assignment acceptable to
Beneficiary of such additional rights, privileges, Governmental Permits, and
documents relating to the Property as Beneficiary may reasonably determine
to be
necessary or appropriate in connection with the design, construction,
improvement, development, use, ownership, operation, maintenance, repair or
marketing of the Property.
ARTICLE
3
EVENTS
OF DEFAULT
Beneficiary,
at its option, shall have the right to declare Trustor to be in default under
this Deed of Trust and the other Loan Documents upon the occurrence of any
or
all of the following events:
3.1
Payment
of Note and Other Monetary Obligations. If
Trustor fails to pay any of its indebtedness under the Note or
perform any of its other obligations under the Loan Documents requiring the
payment of money to Beneficiary or any third Person
within
ten (10) days after the date on which such indebtedness or monetary obligation
is due; provided, however, that the ten (10) day grace period contained in
this
Section 3.1 shall not apply to Trustor's obligation to pay the outstanding
principal balance and all accrued but unpaid interest under the Note on the
stated maturity date of the Note;
3.2
Performance
of Non-Monetary Obligations Under Other Loan Documents. If
(a)
Trustor fails to perform any of its non-monetary obligations to Beneficiary
or
any third Person under any of the Loan Documents when due; and (b) Trustor
fails
to diligently complete a cure of its breach of such non-monetary obligation
as
soon as reasonably practicable after written notice by Beneficiary to Trustor
setting forth such non-monetary breach, but in any event within thirty (30)
days
after such notice is given; provided, however, that the thirty (30) day cure
period contained in this Section 3.2 shall not be deemed to apply if Trustor
commits more than two (2) non-monetary breaches within any twelve (12) calendar
month period. For purposes of this Section 3.2, the term "non-monetary
obligation" means any non-monetary obligation of Trustor under any of the terms
of the Loan Documents, the breach
of which
is reasonably susceptible to being cured by Trustor. Without limiting the
generality of the immediately preceding sentence, a non-monetary obligation
shall not include any of Trustor's obligations to make payments of principal,
interest, or other amounts under the terms of the Note or any of the other
Loan
Documents. Without limiting any of the terms of this Section 3.2, the cure
provision
contained in this Section 3.2 (the "Cure Provision") shall not apply with
respect to any violation of Section 2.15 of this Deed
of
Trust. Notwithstanding anything to the contrary contained in this Section 3.2
or
Section 3.1 above, if Trustor breaches any of the terms of the Loan Documents,
and if Beneficiary, in its good faith business judgment, determines that such
breach impairs Beneficiary's security for the Loan, Beneficiary, immediately
upon the occurrence of any such breach, shall have the right to take
such
actions and exercise such remedies under the Loan Documents as Beneficiary
may
in good faith determine to be necessary or
appropriate to avoid such impairment. The preceding sentence is specifically
intended, among other things, to grant Beneficiary the right to immediately
obtain fire and extended coverage and other forms of insurance with respect
to
the Property if Trustor fails to obtain or maintain any such insurance in effect
in accordance with the terms of the Loan Documents, notwithstanding the
existence of the Cure Provision or any other cure period in favor of
Trustor;
3.3
Other
Agreements with Beneficiary. If
(a)
Trustor fails to pay any of its indebtedness or to perform any of its
obligations under any other document between the Trustor and Beneficiary when
due; and (b) Trustor fails to diligently complete a cure of its breach of such
obligation as soon as reasonably practicable after written notice by Beneficiary
to Trustor setting forth such
breach, but in any event within thirty (30) days after such notice is given;
provided, however, that the thirty (30) day cure period
contained in this Section 3.3 shall not be deemed to apply if Trustor commits
more than two (2) breaches under such other document or documents within any
twelve (12) calendar month period;
3.4
Misrepresentation. If
any
request, statement, information, certification, or representation, whether
written or oral, submitted or made by Trustor to Beneficiary in connection
with
the Loan or any other extension of credit by Beneficiary to Trustor is false
or
misleading in any material respect;
3.5
Insolvency
of Trustor.
If (a) a
petition is filed by or against Trustor under the federal bankruptcy laws or
any
other applicable federal or state bankruptcy, insolvency or similar law; (b)
a
receiver, liquidator, trustee, custodian, sequestrator, or other similar
official is appointed to take possession of Trustor or the Property, or Trustor
consents to such appointment; (c) Trustor makes an assignment for the benefit
of
creditors or fails generally to pay its debts as they become due; (d) Trustor
takes any action in furtherance of any of the foregoing; or (e) there is a
material adverse change in Trustor's financial condition as represented to
Beneficiary in connection with Beneficiary's approval of the Loan and
Beneficiary reasonably determines that such change materially impairs Trustor's
ability to perform any or all of the Obligations; provided, however, that
Trustor shall have forty-five (45) days within which to cause any involuntary
bankruptcy proceeding to be dismissed or the involuntary appointment of any
receiver, liquidator, trustee, custodian, or sequestrator to be discharged.
The
cure provision contained in this Section shall be in lieu of, and not in
addition to, any and all other cure provisions contained in the Loan
Documents;
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3.7
Performance
of Obligations to Senior Lien Holders. If
Trustor fails to pay any of its indebtedness or to perform any of its
obligations under any agreement between Trustor and any other Person who holds
a
Lien senior to this Deed of Trust when due, provided Beneficiary determines
in
good faith that such failure has an actual or potential material adverse effect
on the Property or Trustor's ability to perform any or all of the Obligations.
Nothing contained in this Section constitutes or shall be construed as
Beneficiary's consent to any Lien being placed on the Property which is senior
to the lien of this Deed of Trust;
3.8
Attachment.
If all
or any material part of the assets of Trustor, any of the Guarantors, or any
General Partner or Manager of Trustor are attached, seized, subjected to a
writ
or levied upon by any court process and Trustor fails to cause such attachment,
seizure, writ or levy to be fully released or removed within forty-five (45)
days after the occurrence of such event. The cure
provision contained in this Section shall be in lieu of, and not in addition
to,
any and all other cure periods contained in the Loan
Documents;
3.9
Injunctions. If
a
court order is entered against Trustor, any of the Guarantors, or any General
Partner or Manager of Trustor enjoining the conduct of all or part of such
Person's business and Trustor fails to cause such injunction to be fully stayed,
dissolved or removed within forty-five (45) days after such order is entered.
The cure provision contained in this Section shall be in lieu of, and not in
addition to, any and all other cure periods contained in the Loan
Documents;
3.10
Dissolution.
If
Trustor, any of the Guarantors, or any General Partner or Manager of Trustor
is
a corporation, partnership, limited liability company or trust, the dissolution,
liquidation, or termination of existence of such Person;
3.11
Transfers
of Partnership Interests. If
Trustor is a partnership (a) the admission, withdrawal, death, retirement,
or
removal of any General Partner of Trustor; (b) the sale or transfer of an
aggregate of more than twenty-five percent (25%) of the beneficial interests
in
Trustor; or (c) Beneficiary's receipt of any conflicting written instructions
or
written demands relating to the Loan from any partners of Trustor;
3.12
Transfers
of Corporate Ownership. If
Trustor is a corporation, the sale or transfer of an aggregate of more than
twenty-five percent (25%) of any class of stock in such corporation or the
issuance by such corporation of additional stock to any Person who is not a
shareholder in such corporation as of the date of this Deed of
Trust;
3.13
Transfer
of Manager's Interests. If
Trustor is a limited liability company, (a) the appointment, withdrawal, death,
retirement or removal of any Manager of Trustor; (b) the sale or transfer of
an
aggregate of more than twenty-five percent (25%) of the beneficial interests
of
Trustor; or (c) Beneficiary's receipt of any conflicting written instructions
or
written demands relating to the Loan from any members of Trustor;
3.14
Death:Incompetency. If
Trustor, any of the Guarantors, or any General Partner or Manager of Trustor
is
an individual, the death or incompetency of such Person, except where applicable
law limits or prohibits Beneficiary's declaration of a default based on such
occurrences; provided, however, that Beneficiary shall not declare an Event
of
Default to exist based solely on the death or mental incompetence of any
individual Guarantor, General Partner, or Manager if, within ninety (90) days
after the occurrence
of such event, (a) in the case of the death or mental incompetence of a
Guarantor, Trustor causes a substitute guarantor
to
execute and deliver to Beneficiary a continuing guaranty in the form previously
executed by the affected Guarantor, and Beneficiary in good faith determines
that such substitute guarantor's financial condition is comparable to that
of
the affected Guarantor and that such substitute Guarantor is otherwise
reasonably acceptable to Beneficiary; and (b) in the case of the death or
mental
incompetence of a General Partner or Manager, Trustor causes a substitute
general partner or manager, as applicable, to be
admitted
to Trustor or appointed, and Beneficiary in good faith determines that the
financial condition, credit history, character, experience, ability and
expertise of such substitute general partner or manager are comparable to the
affected General Partner or Manager and that such substitute general partner
or
manager is otherwise reasonably acceptable to Beneficiary;
3.15
Impairment
of
Priority.
If (i)
the priority of this Deed of Trust or Beneficiary's security interest under
any
of the other agreements securing any or all of the Obligations is impaired
for
any reason; or (ii) the value of the Property has deteriorated, declined or
depreciated as a result of any intentional tortious act or omission by
Trustor;
3.16
Condemnation. If
any
condemnation proceeding or action is pending or commenced by any Governmental
Authority
with respect to all or any material part of the Property, and such action or
proceeding results in the Governmental Authority
acquiring title to or possession of all or any material part of the
Property;
3.17
Failure
to Repair Casualty. If
there
is an uninsured casualty with respect to the Property, and Trustor (a) fails
to
commence repairs and reconstruction of the Property within sixty (60) days
after
such damage; or (b) thereafter fails to diligently prosecute such repairs and
reconstruction to completion;
3.18
Transfers
of Property.
If any
of the events described in Section 2.15 above occurs without Beneficiary's
prior
written consent;
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3.19
Default
by Guarantors. If
any
Guarantor fails to pay any of its indebtedness or perform any of its obligations
under
any
of the Guaranties when due or the revocation, limitation or termination or
attempted revocation, limitation or termination of
any of
the obligations of any Guarantor under any of the Guaranties, except in
accordance with the express written terms of the Guaranties; or
3.20
Misrepresentation
by Guarantors. If
any
request, statement, information, certification, or representation, whether
written or oral, submitted or made by any Guarantor to Beneficiary in connection
with the Loan or any other extension of credit by Beneficiary to Trustor or
such
Guarantor is false or misleading in any material respect; or
3.21 Future
Advances. Trustor
shall deliver to Beneficiary any notice terminating or purporting to terminate,
or Trustor shall take any other action to terminate or purporting to terminate,
the operation of this Deed of Trust as security for any future advances or
future obligations.
ARTICLE
4
REMEDIES
Upon
Beneficiary's election to declare Trustor to be in default under this Deed
of
Trust and the other Loan Documents pursuant to Article 3 above, Trustor shall
be
deemed to be in default under this Deed of Trust and the other Loan Documents,
and Beneficiary shall have the following rights and remedies:
4.1 Acceleration. Beneficiary
shall have the right to declare any or all of the Obligations to be immediately
due and payable, including the entire principal amount and all accrued but
unpaid interest under the Note and all Future Advances, and notwithstanding
the
stated maturity of the Note or any Future Advances, such Obligations shall
thereupon be immediately due and payable.
4.2
Entry
by Beneficiary. Whether
or not Beneficiary elects to accelerate any or all of the Obligations under
Section 4.1 above, Beneficiary shall have the right (a) to enter, take
possession of, and manage, operate and lease the Property; (b) to take
possession of any or all Books and Records; (c) to collect any or all Rents
and
Profits, whether or not Beneficiary has taken possession of the Property; and
(d) to take any or all actions which Beneficiary determines to be necessary
or
appropriate in connection therewith or to preserve, protect, maintain and defend
the Property and Beneficiary's lien thereon, including (i) the exercise and
enforcement of all of Trustor's rights under any or all of the Leases; (ii)
the
termination, acceptance of a surrender, modification
or amendment of any or all of the Leases; (iii) the execution of new Leases
on
such terms and conditions as Beneficiary
determines to be appropriate; and (iv) the repair, alteration, improvement
or
completion of the Property in such manner and to such extent as Beneficiary
determines to be necessary or appropriate. If Beneficiary elects to take
possession of the Property or to take any or all of the other actions described
in this Section by court process, Trustor irrevocably and unconditionally agrees
that a receiver may be appointed by a court for such purpose pursuant to Section
4.6 below.
4.3
Judicial
Action.
Beneficiary shall have the right to commence an action or proceeding to
foreclose this Deed of Trust
and
to enforce any or all of the terms of the Loan Documents, including specific
performance of the covenants of Trustor under
this
Deed of Trust.
4.4
Foreclosure
by Power of Sale.
(a) Declaration
and Notice of Default. Beneficiary
shall have the right (i) to cause the Property to be sold under the power of
sale contained in this Deed of Trust at a front door (to be designated by
Trustee) of the Circuit Court House of the county in which the Property is
located or in such other manner permitted by applicable law; and (ii) to deliver
to Trustee a written statement of breach and non-performance. Upon the
expiration of such period of time after the giving of such notice of sale as
may
then be required by law by the Trustee, and without the necessity of any demand
on Trustor, Trustee, at the time and place specified in the notice of sale,
shall sell the Property at public auction to the highest bidder for cash in
lawful money of the United States payable at the time of sale or authorized
credit bid by Beneficiary.
(b) Postponements:
Multiple Parcels.
To the
extent permitted by law, Trustee may, and upon request of Beneficiary shall,
from time to time, postpone any sale hereunder by public announcement at the
time and place noticed for such sale or may, in its discretion, give a new
notice of sale. If the Property consists of several lots, parcels or items
of
property, Beneficiary shall have the exclusive right (i) to designate the order
in which such lots, parcels or items shall be offered for sale or sold; and
(ii)
to elect to sell such lots, parcels or items through a single sale, through
two
or more successive sales, or in any other manner Beneficiary determines to
be in
its best interest. Any Person, including Trustor, Trustee and Beneficiary,
may
purchase at any sale under this Deed of Trust, and Beneficiary shall have the
right to purchase at any such sale by crediting upon the bid price the amount
of
all or any part of the Obligations. If Beneficiary determines to sell the
Property in more than one sale, Beneficiary may, at its option, cause such
sales
of the Property to be conducted simultaneously or successively, on the same
day
or on such different days or times and in such order as Beneficiary may
determine, and no such sale shall terminate or otherwise affect the lien of
this
Deed of Trust on any part of the Property that has not been sold until all
Obligations have been paid in full.
(c) Costs
of Sale; Deed to Purchaser. Trustor
shall pay all costs, fees, and expenses of all sales of the Property under
this
Deed of Trust, including the costs, fees, and expenses (including attorneys'
fees) of Trustee and Beneficiary, together
with interest thereon at the interest rate applicable to principal under the
Note or, with respect to Trustee, the maximum rate
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permitted
by law to be charged by Trustee. Upon any sale under the power of sale contained
in this Deed of Trust, Trustee shall execute and deliver to the purchaser or
purchasers a deed or deeds conveying the property so sold, but without any
covenant or warranty whatsoever, express or implied. The recitals in any such
deed or deeds of any matter or facts, including the existence of any default
by
Trustor, the giving of notice of sale, and other facts affecting the regularity
or validity of such sale or sales, shall be conclusive proof of the truth of
such facts and matters, and any such deed or deeds shall be conclusive against
all Persons as to such facts and matters recited therein. A sale of less than
all of the Property or any defective or irregular sale under this Deed of Trust
shall not exhaust, impair or otherwise affect the power of sale contained in
this Deed of Trust, and subsequent sales of the Property may be made under
this
Deed of Trust until all Obligations have been satisfied or until the entire
Property has been sold without defect or irregularity. If Beneficiary elects
to
cause the Property to be sold under the power of sale contained in this Deed
of
Trust, Beneficiary shall deposit with the Trustee this Deed of Trust, the Note,
and such receipts and evidence of such other Obligations as Trustee may
reasonably require.
4.5
Application
of Sale Proceeds. Trustee
shall apply the proceeds of the sale or sales conducted by Trustee as provided
by applicable law or in the following order of priority: (a) first, to payment
of all expenses of such sale or sales and all costs, expenses, fees, and
liabilities of Trustee and this trust, including attorneys' fees, costs of
a
trustee's sale guaranty, costs of other evidence of title, and Trustee's fees
in
connection with such sale or sales; (b) second, to all amounts advanced by
Trustee or Beneficiary under any of the terms of this Deed of Trust which have
not then been repaid, together with interest thereon at the rate applicable
to
principal under the Note or, with respect to Trustee, the maximum rate permitted
by law to be charged by Trustee; (c) third, to the payment of all other
Obligations in such order and amounts as Beneficiary determines; and (d) the
remainder, if any, to the Person or Persons legally entitled
thereto.
4.6
Appointment
of a Receiver. Beneficiary
shall have the absolute and unconditional right to apply to any court having
jurisdiction and obtain the appointment of a receiver or receivers of the
Property, and Trustor irrevocably and unconditionally consents to such
appointment and agrees that Beneficiary shall have the right to obtain such
appointment (a) without notice to Trustor or any other Person; (b) without
regard to the value of the Property or any other collateral securing the
Obligations or the solvency
of Trustor; and (c) without acceleration of the Obligations or commencement
of
foreclosure proceedings under this Deed of
Trust.
Any such receiver or receivers shall have the usual powers and duties of
receivers in similar cases and all powers and duties necessary or appropriate
to
exercise the rights of Beneficiary as provided in this Deed of
Trust.
4.7 Protection
of Beneficiarv's Security. Beneficiary
or Trustee, without obligation to do so and without notice to or demand on
Trustor, and without releasing Trustor from any of its Obligations or waiving
Beneficiary's rights under the Loan Documents, shall have the right to perform
any Obligation which Trustor has breached in such manner, at such time, and
to
such extent as Beneficiary or Trustee determines to be necessary or appropriate
to preserve, protect, maintain and defend the Property and Beneficiary's lien
thereon.
4.8
Assembly
ofProperty. Upon
Beneficiary's request, Trustor shall assemble and make available to Beneficiary
at the location of the Land all Property which has been removed from or which
is
not located on the Land.
4.9
Discontinuation
of Disbursements Under Loan and Advances under Other Extensions of
Credit. Beneficiary
shall have the (a) right to discontinue or withhold any or all disbursements
of
the proceeds of the Loan and any Future Advances; and (b) to discontinue
advancing money or extending credit to or for the benefit of Trustor in
connection with any other document between Beneficiary and Trustor.
4.10
Rescission
of Notice of Sale. Prior
to
the conduct of any sale under the power of sale contained in this Deed of Trust,
Beneficiary, at its option, shall have the right to rescind any notice of sale
by delivering to Trustee a written notice of rescission executed by Beneficiary
which, when recorded, shall cancel the foreclosure proceedings which have been
commenced by the recordation of such notice of sale. Beneficiary's rescission
of
any notice of sale pursuant to this Section or under applicable law shall not
constitute or be construed as a waiver of any Event of Default or impair,
prejudice or otherwise affect (a) Beneficiary's right to record a new notice
of
sale based on the same or any other Event of Default; or (b) Beneficiary's
rights and remedies in connection with the Obligations.
4.11
Easements. Without
limiting the effect of any right or remedy exercised by Beneficiary under the
Loan Documents, any Easements granted by Trustor or other agreement made by
Trustor in violation of any of the terms of this Deed of Trust shall, at the
option of any purchaser at any judicial or nonjudicial foreclosure sale under
this Deed of Trust, be voidable, and any such purchaser shall have the right
to
take possession of the Property free from the terms of such Easement or
agreement.
4.12
Exercise
of Rights Under Other Loan Documents. Beneficiary
shall have the right to exercise any or all rights and remedies which
Beneficiary may have under any or all of the other Loan Documents and applicable
law.
4.13
Creation
of Tenancy Relationship. Trustor
reserves possession of the Property as a tenant at will of Trustee, at a rental
of One Dollar ($1.00) per month payable on demand, until an Event of Default
shall have occurred, whereupon Trustor (i) shall
pay
monthly in advance to Beneficiary the fair and reasonable rental value, which
amount shall be determined by Beneficiary in
Beneficiary's reasonable judgment, for the use and occupation of the Property,
and (ii) upon demand of Trustee, shall deliver possession of the Property to
Trustee or the purchaser at any Trustee's sale hereunder. Trustee or any such
purchaser may institute summary or other proceedings in such event to recover
possession of the Property.
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WARRANTIES
AND REPRESENTATIONS
5.1
Warranties
and Representations. As
a
material inducement to the Beneficiary's extension of credit to Trustor in
connection with the Loan, Trustor warrants and represents to the Beneficiary
as
follows:
(a) Corporate
Existence.
If
Trustor is a corporation, Trustor is duly organized, validly existing and in
good standing under the laws of the state of its incorporation, and Trustor
is
qualified to do business and is in good standing under the laws of the state
in
which the Property is located.
(b) Partnership
or Limited Liability Company
Existence. If
Trustor is a partnership or limited liability company, Trustor is duly
organized, validly existing and in good standing under the laws of the state
in
which Trustor is organized, and Trustor is qualified to do business and is
in
good standing under the laws of the state in which the Property is
located.
(c) Existence
of Trust.
If
Trustor is a trust, Trustor is duly organized and validly existing, and the
trustees of Trustor are qualified to act in such capacity.
(d) Authority. Trustor
has the full power and authority to carry on its business and to enter into
and
perform all of
its
obligations under the Loan Documents, and the Loan Documents, when executed
by
the Persons signing this Deed of Trust
on
behalf of Trustor, shall constitute legal, valid and binding obligations of
Trustor enforceable in accordance with their respective terms. The Persons
executing this Deed of Trust on behalf of Trustor are duly authorized to execute
the Loan Documents and all other documents required by Beneficiary in connection
with the Loan on behalf of Trustor. No consent of any other Person and no
consent, approval, authorization or other action by or filing with any
Governmental Authorities is required in connection with the execution, delivery
and performance of Trustor's obligations under the Loan Documents.
(e) No Violations. The
consummation of the transactions contemplated by the Loan Documents and the
performance of Trustor's obligations thereunder will not result in a breach
or
violation of (i) any Governmental Requirements of any Governmental Authorities
or any judgment, writ, injunction, decree or order of any court relating to
Trustor or the Property; (ii) any mortgage, agreement, commitment, restriction,
or other document to which Trustor is a party or by which Trustor or the
Property is bound; (iii) Trustor's agreement or certificate of limited
partnership, if Trustor is a limited partnership; (iv) Trustor's agreement
or
statement of partnership, if Trustor is a general partnership; (v) Trustor's
articles of incorporation or bylaws, if Trustor is a corporation; (vi) Trustor's
trust agreement, if Trustor is a trust; or (vii) Trustor's articles of
organization or operating agreement, if Trustor is a limited liability
company.
(f) Utilities.
All
utility services necessary for the use and occupancy of the Property, including
water, storm drains, sewers, gas, electric and telephone facilities, are either
available at the boundaries of the Land or, if this Deed of Trust secures a
construction loan, Trustor has taken all necessary steps to assure that all
such
utility services will be available upon completion of the
Improvements.
(g) Access.
All
public streets and rights of way necessary for the use and occupancy of the
Property have been completed or, if this Deed of Trust secures a construction
loan, Trustor has taken all necessary steps to assure that such public streets
and rights of way shall be completed upon completion of the
Improvements.
(h) Governmental
Restrictions.
To the
best of Trustor's knowledge, there are no conditions or restrictions
affecting
the use or development of the Property and no agreements or contracts with
any
Governmental Authorities, including local,
regional, state, or federal governmental authorities, affecting the use or
development of the Property which have not been disclosed in writing by Trustor
to Beneficiary.
(i) Litigation.
To the
best of Trustor's knowledge, there are no actions, suits, proceedings or
investigations pending or threatened against or affecting Trustor or the
Property in any court or before any other Governmental Authorities, nor does
Trustor know of any basis for any such action, suit, proceeding or
investigation.
(j) Ownership. Upon
recordation of this Deed of Trust, Trustor will be the sole legal and beneficial
owner of, and will have good and marketable title to, the Property and all
other
collateral which is the subject of the Loan Documents.
(k) Liens. To
the
best of Trustor's knowledge, there are no Liens, claims, encroachments,
Covenants and Restrictions, Leases, Easements, or other rights affecting the
Property which would not be disclosed by a customary search of the records
relating to the Land of the county recorder for the county in which the Property
is located.
(l)Condemnation. There
is
no condemnation, zoning change, or other proceeding or action pending or, to
the
best of Trustor's knowledge, threatened or contemplated by any Governmental
Authority which would in any way affect the Property.
(m)Repair
Orders.
To the
best of Trustor's knowledge, no orders or directives have been issued by any
Governmental Authorities requiring that any work of repair, maintenance or
improvement be performed with respect to the Property.
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(n) Transfers.
Trustor
has not sold, transferred, leased or encumbered the Property or entered into
any
agreement for the sale, transfer, lease or encumbrance of the Property, except
as described in the Loan Documents.
(o) No
Affiliation With Tenants. Neither
(i) Trustor; (ii) any General Partner or Manager of Trustor, if Trustor is
a
partnership or limited liability company, (iii) any shareholder in Trustor,
if
Trustor is a corporation; or (iv) any Guarantors have any direct or indirect
financial or other interest in any Tenant, except for such interests as have
been specifically disclosed to and approved in writing by Beneficiary prior
to
the date of recordation of this Deed of Trust.
(p) Financial
Statements. All
statements respecting the financial condition of Trustor, any General Partner
or
Manager of Trustor, and any Guarantors which have been furnished to the
Beneficiary (i) are accurate and complete in all material respects as of the
dates appearing thereon; (ii) present fairly the financial condition and results
of operations of the Person to whom the financial statement applies as of the
dates and for the periods shown on such statements; and (iii) disclose all
suits, actions, proceedings and contingent liabilities affecting the Person
to
whom the financial statement applies. Since the last date covered by such
financial statements, there has been no material adverse change in the financial
condition of the Persons to whom such statements apply.
(q) Other
Financinq. As
of the
date of recordation of this Deed of Trust, no other financing for the Property
will be in effect or encumber the Property, except such subordinate financing
as
has been specifically disclosed to and approved in writing by Beneficiary prior
to the date of recordation of this Deed of Trust.
(r) Commissions.
Trustor
has not dealt with any Person who is or may be entitled to any finder's fee,
brokerage commission, loan commission or other similar sum in connection with
the consummation of the transactions contemplated by the Loan Documents, except
for such commissions as have been specifically disclosed to and approved in
writing by Beneficiary prior to the date of recordation of this Deed of
Trust.
5.2
Continuing
Warranties and Representations.
The
warranties and representations contained in this Article 5 shall be true and
correct as of the date of recordation of this Deed of Trust, shall survive
the
closing of the Loan, and shall remain true and correct as of the date on which
such warranties and representations are given.
ARTICLE
6
MISCELLANEOUS
6.1
Beneficiary
Statement: Certain Charges. With
respect to (a) any statement, accounting, or similar information requested
by
Trustor; or (b) any other document furnished to Trustor or any other Person
by
Beneficiary at Trustor's request, Beneficiary
shall have the right to charge the maximum amount then permitted by law or,
if
there is no such maximum, Beneficiary's customary
charge for providing such statement, accounting, or other information. Trustor
shall pay Beneficiary its customary charge for
any
other service rendered by Beneficiary in connection with the Loan or the
Property, including the issuance of a request for full
or
partial reconveyance of this Deed of Trust, transmitting Loan proceeds to an
escrow holder and changing Beneficiary's records relating to the
Obligations.
6.2
Reconvevance. Upon
(a)
Beneficiary's written request stating that all Obligations secured by this
Deed
of Trust have been paid or performed in full; (b) surrender to Trustee of this
Deed of Trust, the Note and all other documents evidencing the indebtedness
secured by this Deed of Trust; and (c) payment of Trustee's fees and expenses
of
this trust, Trustee shall reconvey the Property then held under this Deed of
Trust without warranty of any kind. The recitals in the reconveyance of any
matters or facts shall be conclusive proof of their truthfulness. The grantee
in
such reconveyance may be described as the "person or persons legally
entitled thereto". Such reconveyance shall operate as a reassignment of the
Rents and Profits assigned to Beneficiary under
this
Deed of Trust. Unless Trustee is directed by Xxxxxxxxxxx to retain such
documents for a longer period of time, Trustee may destroy this Deed of Trust
and the Note five (5) years after issuance of the full reconveyance; provided,
however, that Trustee, in its sole discretion, may deliver this Deed of Trust
and the Note after full reconveyance to the Person or Persons legally entitled
thereto.
6.3Substitution
of Trustee.
Beneficiary, at its option, shall have the right from time to time to appoint
a
successor trustee to any trustee appointed under this Deed of Trust by
Beneficiary's execution and acknowledgment of a written instrument which is
recorded in the office of the recorder of each county in which the Property
is
located. The recordation of such an instrument in accordance with this Section
shall constitute conclusive proof of the proper substitution of a successor
trustee under this Deed of Trust. Upon recordation of such an instrument, the
successor trustee shall succeed to all the title, power and duties granted
to
the Trustee under this Deed of Trust and by applicable law without conveyance
of
the Property. Such instrument shall contain
the name of the original Beneficiary, Trustee and Trustor named in this Deed
of
Trust, the book and page or other recording
information for this Deed of Trust, and the name and address of the successor
trustee. If a notice of sale has been recorded prior to the recordation of
a
substitution of trustee, the power of substitution shall not be exercised by
Beneficiary until the costs, fees and expenses of the acting trustee have been
paid in full and the acting trustee has endorsed acknowledgment of receipt
of
such amounts on the instrument substituting the successor trustee. Without
limiting the terms of this Section, Beneficiary shall have the right from time
to time to substitute a successor to any trustee appointed under this Deed
of
Trust in accordance with any statutory or other procedure allowed by law for
such substitution.
6.4
Execution
of Instruments by Beneficiary and Trustee.
Without
notice to or affecting the liability of Trustor or any other Person for the
payment or performance of the Obligations, without affecting the lien or
priority of this Deed of Trust or
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Beneficiary's
rights and remedies under the Loan Documents, and without liability to Trustor
or any other Person, Beneficiary and Trustee (if Trustee is so requested in
writing by Beneficiary) shall have the right, at any time and from time to
time,
to do any one or more of the following: (a) reconvey any part of the Property;
(b) consent in writing to the making of any map or plat relating to the
Property; (c) join in or consent to the granting of any Easement affecting
the
Property; and (d) execute any extension agreement relating to any or all of
the
Obligations, any document subordinating the lien of this Deed of Trust to any
other Lien or document, or any other document relating to the Property,
Obligations, or Loan Documents.
6.5
Trust
Irrevocable: Acceptance by Trustee. The
trust
created by this Deed of Trust is irrevocable by Trustor. Trustee
accepts this trust when this Deed of Trust, xxxx executed and acknowledged,
is
recorded in the county in which the Property
is
located as provided by law. Trustee is not obligated to notify any party of
a
pending sale under any other deed of trust or of any action or proceeding in
which Trustor, Beneficiary or the Trustee shall be a party unless brought by
the
Trustee.
6.6 Late
Charges. If
any
payment under the Note or any note evidencing a Future Advance is not paid
when
due, Trustor shall pay any late charge provided for in the Loan
Documents.
6.7
Requests
by Trustor for Approvals by Beneficiary. All
requests by Trustor for Beneficiary's consent to or approval of any transaction
or matter requiring Beneficiary's consent or approval under the Loan Documents
(a) shall be made by Trustor in writing; (b) shall specifically describe the
transaction or matter with respect to which Beneficiary's consent or approval
is
requested; (c) shall be accompanied by such information and documentation as
Beneficiary may require in connection with such request; and (d) shall be
delivered to Beneficiary not less than fifteen (15) days before Trustor proposes
to take the action or effect the transaction with respect to which Beneficiary's
consent or approval is requested, unless a different period of time is expressly
provided for in the Loan Documents.
6.8
Approvals
by Beneficiary. Whenever
(a) the terms of the Loan Documents grant Beneficiary the right to consent
to or
approve any transaction or matter; (b) Beneficiary is authorized or empowered
under the Loan Documents to make a determination with respect to any transaction
or matter; or (c) the Loan Documents provide that any document or other item
must be approved by or acceptable to Beneficiary, then except as otherwise
expressly provided in the Loan Documents, (i) Beneficiary shall have the right
to grant or withhold such approval or consent and make such determination in
its
sole and absolute discretion; and (ii) the form and substance of such document
or other item must be satisfactory to Beneficiary in its sole and absolute
discretion. Whenever the terms of the Loan Documents require Beneficiary's
consent to or approval of any transaction, matter, or document, such consent
or
approval shall not be deemed to be effective unless it is set forth in a written
instrument executed by Beneficiary.
6.9
Transfers
by Trustor: No Release of Trustor. The
following provisions shall apply if Trustor sells, conveys, transfers or
alienates the Property or any interest in the Property with or without
Beneficiary's consent:
(a) No
Release of Trustor.
No such
action by Trustor nor any assumption of any or all of the Obligations by any
transferee of the Property ("Transferee") shall be deemed to release Trustor
or
any other Person, including any Guarantor, from any liability under the terms
of
the Loan Documents, and Trustor and such Persons shall remain liable to
Beneficiary for the payment and performance of all of their respective
obligations under the Loan Documents.
(b) Actions
Without Trustor's Consent. Trustor
agrees that Beneficiary may do any one or all of the following without notice
to
or the consent of Trustor and without affecting Beneficiary's rights or remedies
against Trustor: (i) accelerate, accept partial payment of, compromise, settle,
renew, extend the time for payment or performance of, or refuse to enforce
any
of Trustor's Obligations to Beneficiary under or in connection with this Deed
of
Trust or any of the other Loan Documents; (ii) grant any indulgence or
forbearance to the Transferee or any other Person under or in connection with
any or all of the Loan Documents; (iii) release, waive, substitute or add any
or
all collateral securing payment of any or all of the Obligations; (iv) release,
substitute or add any one or more endorsers or guarantors of any or all of
the
Obligations; (v) amend, supplement, alter or change in any respect whatsoever
any term or provision of the Loan Documents or any other agreement relating
to
the Obligations; and (vi) exercise any right or remedy with respect to the
Obligations or any collateral securing the Obligations, notwithstanding any
effect on or impairment of Trustor's subrogation, reimbursement or other rights
against the Transferee.
(c) Waivers. Trustor
waives all rights which it may have (i) to require Beneficiary to exhaust its
rights and remedies against the Transferee, any other Person, or any collateral
securing any or all of the Obligations before pursuing its rights and remedies
against Trustor; (ii) to require Beneficiary to exercise any right or power
or
to pursue any remedy which Beneficiary may have under the Loan Documents or
applicable law before pursuing its rights and remedies against Trustor; and
(iii) to assert any defense to Beneficiary's enforcement of its rights and
remedies against Trustor based on an election of remedies by Beneficiary or
the
manner in which Beneficiary exercises any remedy which destroys, diminishes
or
interferes with any or all of Trustor's subrogation, reimbursement or other
rights against the Transferee.
6.10
Taxes
Imposed on Beneficiary. If,
after
the date of this Deed of Trust, any Governmental Requirements are enacted for
the purpose of taxing any lien on the Property or changing in any way the laws
for the taxation of deeds of trust or debts secured by deeds of trust, so as
to
impose on Beneficiary payment of all or part of any Taxes assessed against
the
Property, then prior to the due date of such Taxes, Trustor shall pay all such
Taxes and agree to pay such Taxes when levied or assessed against the Property
or Beneficiary; provided, however, that if such payment or agreement by Trustor
shall not be permitted by law, Beneficiary, at its option, shall have the right
to declare any or all of the Obligations to be immediately due and payable
upon
notice to Trustor. Nothing contained in this Section shall be deemed to require
Trustor to pay any franchise, estate, inheritance, income or similar tax imposed
on Beneficiary.
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6.11
Recourse
Against Separate Property. Each
Trustor who is a married person agrees that Beneficiary shall have the right
to
recourse against his or her community property and separate property for any
or
all Obligations to the fullest extent permitted by law.
6.12
Defense
of Actions and Protection of Security by Beneficiary. Whether
or not an Event of Default has occurred, Beneficiary and Trustee shall each
have
the right, but not the obligation, to appear in and defend any action or
proceeding, whether commenced by or against Trustor, any of the Guarantors,
or
any other Person, which affects or which Beneficiary or Trustee determines
may
affect any or all of the following: (a) the Property; (b) the Insurance Claims,
Condemnation Claims, or Property Claims; (c) Beneficiary's, Trustee's, or
Trustor's respective rights and obligations under the Loan Documents; (d) the
Obligations; or (e) any other transaction or matter which affects Beneficiary
by
reason of its interest in the Property. Beneficiary and Trustee shall each
have
the right, but not the obligation, to commence and prosecute any action or
proceeding which Beneficiary or Trustee determines to be necessary or
appropriate to do any or all of the following: (i) prevent any damage,
destruction,
or injury to the Property; (ii) enforce or recover upon the Insurance Claims,
Condemnation Claims, or Property Claims or
collect
the Insurance Proceeds, Condemnation Proceeds, or Property Proceeds pursuant
to
this Deed of Trust; (iii) preserve, protect, maintain, and defend the Property
and Beneficiary's lien thereon; or (iv) enforce or exercise any right, remedy
or
power available to or conferred on Beneficiary or Trustee under the Loan
Documents or applicable law. Beneficiary and Trustee shall each have the right
to discontinue, suspend or dismiss any such action or proceeding which has
been
commenced by Beneficiary or Trustee at any time.
6.13
Expenses. Beneficiary
and Trustee, and each of them, shall have the right to incur and pay all costs,
fees, expenses, and liabilities that Beneficiary and Trustee, respectively,
determine to be necessary or appropriate in connection with any or all of the
following matters (all such costs, fees, expenses and liabilities, excluding
ordinary overhead expenses of Beneficiary's and Trustee's respective regular
business premises and salary expenses for Beneficiary's and Trustee's respective
clerical and supervisory personnel, are referred to collectively as the
"Reimbursable Costs"): (a) costs and expenses incurred in the management,
servicing, or administration of the Loan and any Future Advances which relate
to
Beneficiary's review of those documents, transactions or other matters requiring
Beneficiary's approval under the terms of the Loan Documents; (b) the exercise
of any or all of Beneficiary's and Trustee's respective rights and remedies
under the Loan Documents, including (i) all premiums and other costs and
expenses paid or incurred by Beneficiary in connection with Beneficiary's
obtaining any Insurance Policies; and (ii) all costs and expenses, including
attorneys' fees and costs, incurred in connection with Beneficiary's review,
preparation, analysis, or negotiation, as applicable, of any of the further
documents or other matters that are contemplated by the Loan Documents or that
Beneficiary has the right to require, review or approve pursuant to the Loan
Documents, including Leases, estoppel certificates from any Tenant under any
Lease or from any other Person, and non-disturbance, subordination or attomment
agreements
by any Tenant under any Lease or by any other Person; (c) the enforcement of
any
or all of the Obligations or any other
obligation of any Person liable to Beneficiary in connection with the Loan
or
any Future Advance, whether or not any legal action or proceeding is commenced
by Beneficiary; (d) the preservation, protection, maintenance, or defense of
the
Property or Beneficiary's lien thereon; (e) the sale or disposition of the
Property or any other collateral securing any or all of the Obligations; (f)
the
defense of any action or proceeding commenced by Trustor, any of the Guarantors,
or any other Person under Section 6.12 above; or (g) the commencement and
prosecution of any action or proceeding by Beneficiary or Trustee with respect
to any or all of the matters described in this Section or in Section 6.12 above,
including an action for relief from any stay, injunction, or similar order
or
enactment arising under any federal or state bankruptcy, insolvency or similar
law. Without limiting the terms of this Section, Beneficiary shall have the
right to do any or all of the following in connection with any of the matters
described in this Section, and all costs, fees, expenses, and liabilities
incurred or paid in connection therewith shall constitute Reimbursable Costs:
(1) select, retain, and consult with attorneys, accountants, appraisers,
contractors, brokers, architects, engineers and such other experts, consultants,
advisors and third Persons as Beneficiary determines to be necessary or
appropriate; (2) settle, purchase, compromise or pay any or all claims, demands,
and Liens; and (3) obtain any trustee's sale guaranty or other title insurance
coverage relating to the Property which Beneficiary determines to be necessary
or appropriate.
6.14
Payment
of Advances by Trustor. All
Reimbursable Costs and all other costs, fees, expenses and liabilities incurred
or paid by Beneficiary under any other provision of the Loan Documents or under
applicable law in connection with the Obligations or the Property (a) shall
be
payable by Trustor to Beneficiary on Beneficiary's demand; (b) shall constitute
additional indebtedness of Trustor to Beneficiary; (c) shall be secured by
this
Deed of Trust; and (d) shall bear interest from the date of expenditure at
the
rate of interest applicable to principal under the Note. All Reimbursable Costs
and all other costs, fees, expenses and liabilities incurred or paid by Trustee
under this Deed of Trust or under applicable law in connection with this Deed
of
Trust shall be payable by Trustor to Trustee on Trustee's demand and shall
bear
interest at the maximum rate permitted to be charged by Trustee under applicable
law. Nothing contained in this Deed of Trust shall be deemed to obligate
Beneficiary or Trustee (i) to incur any costs, fees, expenses, or liabilities;
(ii) to make any appearances in or defend any action or proceeding; or (iii)
to
commence or prosecute any action or proceeding relating to any
matter.
6.15
No
Third Party Beneficiaries. The
Loan
Documents are entered into for the sole protection and benefit of Beneficiary,
Trustor and Trustee and their respective permitted successors and assigns.
No
other Person shall have any rights or causes of action under the Loan
Documents.
6.16
Notices.
All
notices and demands by Beneficiary to Trustor under this Deed of Trust shall
be
in writing and shall be effective on the earlier of personal delivery to Trustor
or two (2) days after deposit in first-class or certified United States mail,
postage prepaid, addressed to Trustor at the address set forth in this Deed
of
Trust, except that service of any notice of default or notice of sale provided
or required by law shall, if mailed, be deemed effective on the date of mailing.
All notices and demands by Trustor to Beneficiary under this Deed of Trust
shall
be in writing and shall be effective on actual receipt by Beneficiary at
Beneficiary's address set forth in this Deed of Trust; provided, however, that
nonreceipt of any such notice or demand by Beneficiary
20 TRUSTOR'S
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as
a
result of Beneficiary's refusal to accept delivery or Beneficiary's failure
to
notify Trustor of Beneficiary's change of address shall be deemed receipt
by
Beneficiary. Trustor's and Beneficiary's respective addresses set forth in
this
Deed of Trust may be changed by written notice given to the other party in
accordance with this Section. If Trustor consists of more than one Person,
service of any notice or demand on any one of such Persons by Beneficiary
shall
be effective service on Trustor for all purposes.
6.17
Performance
of Covenants. Trustor
shall perform and comply with all of its obligations under this Deed of Trust
at
Trustor's sole cost and expense.
6.18
Severability. If
any
provision of the Loan Documents shall be held by any court of competent
jurisdiction to be unlawful, voidable, void, or unenforceable for any reason,
such provision shall be deemed to be severable from and shall in no way affect
the validity or enforceability of the remaining provisions of the Loan
Documents.
6.19
Interpretation. Whenever
the context of the Loan Documents reasonably requires, all words used in the
singular shall be deemed to have been used in the plural, and the neuter gender
shall be deemed to include the masculine and feminine gender, and vice versa.
For purposes of this Deed of Trust, all references to the Property or
Improvements shall be deemed to refer to all or any part of the Property or
Improvements, respectively. The headings to sections of this Deed of Trust
are
for convenient reference only, and they do not in any way define or limit any
of
the terms of this Deed of Trust and shall not be used in interpreting this
Deed
of Trust. For purposes of this Deed of Trust, the term "including" shall be
deemed to mean "including without limitation," and the term "document" shall
include all written contracts, commitments, restrictions, agreements, mortgages,
and instruments.
6.20
Time
of the Essence. Time
is
of the essence in the performance of each provision of the Loan Documents by
Trustor.
6.21
Amendments. The
Loan
Documents (excluding the Guaranties) may be modified only by written agreement
signed by Beneficiary and Trustor.
6.22
Entire
Agreement. The
Loan
Documents contain the entire agreement concerning the subject matter of the
Loan
Documents
and supersede all prior and contemporaneous negotiations, agreements,
statements, understandings, terms, conditions,
representations and warranties, whether oral or written, between Beneficiary
and
Trustor concerning the Loan and any Future Advances which are the subject matter
of the Loan Documents.
6.23
No
Waiver by Beneficiary. No
waiver
by Beneficiary of any of its rights or remedies in connection with the
Obligations or of any of the terms or conditions of the Loan Documents shall
be
effective unless such waiver is in writing and signed by Beneficiary. Without
limiting the generality of this Section, (a) no delay or omission by Beneficiary
in exercising any of its rights or remedies in connection with the Obligations
shall constitute or be construed as a waiver of such rights or remedies; (b)
no
waiver by Beneficiary of any default by Trustor under the Loan Documents or
consent by Beneficiary to any act or omission by Trustor shall constitute or
be
construed as a waiver of or consent to any other or subsequent default, act
or
omission by Trustor; (c) no disbursement of the proceeds of the Loan or any
Future Advance by Beneficiary following any Event of Default shall constitute
or
be construed as a waiver of such Event of Default or obligate Beneficiary to
make any other disbursement under the Loan Documents; (d) no acceptance by
Beneficiary of any late payment or late or defective performance of any of
the
Obligations by Trustor shall constitute a waiver by Beneficiary of the right
to
require prompt payment and performance strictly in accordance with the Loan
Documents with respect to any other payment or performance of any of the
Obligations; (e) no acceptance by Beneficiary of any payment or performance
following any notice of default which has been given or recorded by Beneficiary
shall constitute a waiver of Beneficiary's right to proceed with the exercise
of
its remedies with respect to any Obligations which have not been paid or
performed in full; (f) no acceptance by Beneficiary of any partial payment
or
performance shall constitute a waiver by Beneficiary of any of its rights or
remedies relating to any Obligations which have not been paid or performed
in
full; and (g) no application of Rents and Profits, Insurance Proceeds,
Condemnation Proceeds or Property Proceeds to any of the Obligations shall
constitute or be construed as a waiver by Beneficiary or cure of any Event
of
Default or impair, prejudice, invalidate or otherwise affect any action by
Beneficiary or Trustee in response to such default.
6.24
Waivers
by Trustor. Trustor
waives presentment, demand for payment, protest, notice of demand, dishonor,
protest and non-payment, and all other notices and demands in connection with
the delivery, acceptance, performance, default under, and enforcement of the
Loan Documents. Trustor waives the right to assert any statute of limitations
as
a defense to the enforcement of any or all of the Loan Documents to the fullest
extent permitted by law.
6.25
Waiver
of Marshallinq. Trustor
and all Persons holding a Lien affecting the Property who have actual or
constructive notice of this Deed of Trust waive (a) all rights to require
marshalling of assets or liens in the event of Beneficiary's exercise of any
of
its rights and remedies under this Deed or Trust, including any judicial or
nonjudicial foreclosure sale of the Property; (b) all rights to require
Beneficiary to exhaust its rights and remedies against any other collateral
securing any or all of the Obligations before pursuing its rights and remedies
under this Deed of Trust; and (c) all rights to require Beneficiary to exercise
any other right or power or to pursue any other remedy which Beneficiary may
have under any document or applicable law before pursuing its rights and
remedies under this Deed of Trust.
6.26
Waiver
of
Subrogation. Trustor
waives all rights to recover against Beneficiary for any loss or damage incurred
by Trustor from any cause which is insured under any of the Insurance Policies,
except that the foregoing waiver of subrogation shall not be effective with
respect to any Insurance Policy if the coverage under such policy would be
materially reduced or impaired
21 TRUSTOR'S
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as
a
result of such waiver. Trustor shall use its best efforts to obtain Insurance
Policies which permit the waiver of subrogation contained in this
Section.
6.27
Cumulative
Remedies. No
right
or remedy of Beneficiary or Trustee under this Deed of Trust or the other Loan
Documents shall be exclusive of any other right or remedy under the Loan
Documents or to which Beneficiary or Trustee may be entitled. Beneficiary's
rights and remedies under the Loan Documents are cumulative and in addition
to
all other rights and remedies which Beneficiary may have under any other
document with Trustor and under applicable law. Beneficiary shall have the
right
to exercise any one or more of its rights and remedies in connection with the
Obligations at Beneficiary's option and in its sole and absolute discretion,
without notice to Trustor or any other Person (except as otherwise expressly
required by law or under the Loan Documents), and in such order as Beneficiary
may determine in its sole and absolute discretion. If Beneficiary holds any
collateral in addition to the Property for any of the Obligations, Beneficiary,
at its option, shall have the right to pursue its rights or remedies with
respect to such other collateral either before, contemporaneously with, or
after
Beneficiary's exercise of its rights or remedies with respect to the Property.
Upon the occurrence of an Event of Default, Beneficiary, at its option, shall
have the right to offset against any debt or monies due from Beneficiary to
Trustor against all or part of the Obligations.
6.28
Subrogation
to Lien Rights. If
any or
all of the proceeds of the Note or any Future Advance are directly or
indirectly
used to pay any outstanding Lien against the Property, or if Beneficiary pays
or
discharges any Lien pursuant to any of the
terms of
the Loan Documents or under applicable law, Beneficiary shall be subrogated
to
all rights and liens held by the holder of such Lien, regardless of whether
such
Lien is reconveyed.
6.29
Joint
and Several Liability. Each
Person signing this Deed of Trust as Trustor shall be jointly and severally
liable to Beneficiary for the performance of Trustor's obligations under the
Loan Documents. If Trustor consists of more than one Person, the occurrence
of
any Event of Default with respect to any one or more of such Persons shall
constitute an Event of Default and entitle Beneficiary to exercise its rights
and remedies under Article 4 of this Deed of Trust.
6.30
Sale
of Loan Documents and Participations. Beneficiary
shall have the right to sell, transfer, pledge or assign any or all of Loan
Documents or sell, transfer, pledge or assign participations in the Loan
Documents to any other Person without notice to or the consent of Trustor or
any
other Person; provided, however, that no such sale of a participation shall
relieve Beneficiary of any of its obligations under the Loan Documents.
Beneficiary is authorized to disclose to any participant, assignee or
prospective participant or assignee all documents and information in
Beneficiary's possession or control relating to Trustor, the Guarantors, the
Obligations or the Property, provided that such disclosure shall be made
exclusively in connection with the proposed assignment of Loan Documents or
sale
of a participation. Trustor's obligations to indemnify Beneficiary under the
Loan Documents shall apply with respect to each such participant and such
participant's officers, directors, agents, employees, representatives,
shareholders, affiliates, successors and assigns, with the same force and effect
as the same indemnification obligations apply with respect to Beneficiary and
its officers, directors, agents, employees, representatives, shareholders,
affiliates, successors and assigns.
6.31
Applicable
Law: Jurisdiction. The
Loan
Documents shall be governed by and construed in accordance with the laws of
the
State of Missouri, except that the Guaranties shall be governed by and construed
in accordance with the laws of the State of California. Trustor consents to
personal jurisdiction over Trustor by the courts of the State of Missouri and
agrees that service of process on Trustor may be effected by certified or
registered mail, return receipt requested, directed to Trustor at its address
shown in this Deed of Trust.
6.32
Successors. Subject
to the restrictions contained in the Loan Documents, the Loan Documents shall
be
binding upon and inure to the benefit of Beneficiary and Trustor and their
respective permitted successors and assigns.
6.33
Power
ofAttorney. Trustor
irrevocably appoints Beneficiary, with full power of substitution, as Trustor's
attorney-in-fact, coupled with an interest, with full power, in Beneficiary's
own name or in the name of Trustor (a) to take any or all of the actions
specified in Article 4 above with respect to the Property; and (b) to sign
and
record notices of completion, notices of cessation
of labor, and any other similar notice or document which Beneficiary determines
to be necessary or appropriate to protect
its
interests in connection with the Obligations. Beneficiary shall have the right
to exercise the power of attorney granted in this Section directly or to
delegate all or part of such power to one or more agents of Beneficiary. Nothing
contained in this Deed of Trust shall be construed to obligate Beneficiary
to
act on behalf of Trustor as attorney-in-fact.
6.34
No
Merger. There
shall be no merger of any estate in the Property which Trustor acquires after
the date of this Deed of Trust with all or any portion of the estate in the
Property which Trustor holds as of the date of this Deed of Trust, unless
Beneficiary shall expressly agree otherwise in writing.
6.35
Request
for Notices. Trustor
hereby requests that a copy of any notice of sale as may be required by law
be
mailed to Trustor at its address stated above.
ARTICLE
7
UNIFORM
COMMERCIAL CODE SECURITY AGREEMENT
7.1
Uniform
Commercial Code Security Agreement. Article
7
of this Deed of Trust constitutes a security agreement pursuant to the Uniform
Commercial Code of the State in which the Property is located (the "Code").
All
terms that are used in this
22 TRUSTOR'S
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Article
7
but which are not specifically defined in this Deed of Trust shall have the
meanings given go such terms in the Code. To secure payment and performance
of
the Obligations, Trustor grants Beneficiary a security interest in all now
owned
and hereafter acquired personal property of Trustor now or hereafter located
on
the Property or now or hereafter obtained for, used connection with, or
otherwise relating to the design, planning, construction, development, use,
operation, maintenance, or marketing of the Property (collectively, the
"Personal Property Collateral"), including the following: (a) all fixtures,
machinery, machines, motor vehicles, tools, parts, equipment, pumps, engines,
motors, boilers, incinerators, building materials, inventory, supplies, goods,
systems for the supply or distribution of heat, air conditioning, electricity,
gas, water, air or light, elevators and related machinery and equipment,
fire
prevention and extinguishing equipment, security and access control equipment,
plumbing, showers, bath tubs, water heaters, toilets, sinks, stoves, ranges,
refrigerators, dishwashers, disposals, laundry equipment, wall, window and
floor
coverings, partitions, doors, windows, hardware, waste and rubbish removal
equipment, recreational equipment, signs, furniture, furnishings, appliances,
telephone equipment, computer systems, office equipment and supplies, plants,
carpets, rugs, sculptures, art work, mirrors, tables, lamps, beds, television
sets, light fixtures, chandeliers, desks, cabinets, bookcases, chairs, sofas,
benches, and janitorial and maintenance equipment and supplies, and all
substitutions, accessories, accessions, replacements, improvements, and
additions to any or all of the foregoing; (b) all deposits, advance payments,
security deposits, and rental payments made by or on behalf of Trustor to
others
in connection with the Property and relating to any or all of the following:
(i)
management or operational services; (ii) marketing services; (iii)
architectural, engineering, or design services; (iv) utility services; (v)
cleaning, maintenance, security, or repair services; (vi) rubbish or refuse
removal services; (vii) sewer services; (viii) rental of furnishings, fixtures
or equipment; (ix) parking; or (x) any service similar to any or all of the
foregoing; (c) all reports, appraisals, drawings, plans, blueprints, studies,
specifications, certificates of occupancy, building permits, grading permits,
and surveys relating to all or part of the Property, and all amendments,
modifications, supplements, general conditions and addenda thereto; (d) all
trade names, trademarks, trade styles, service marks, domain names, computer
software and computer software products, logos, letterheads, advertising
symbols, goodwill, telephone numbers, advertising rights, negatives, prints,
brochures, flyers, pamphlets and other media items used or intended to be
used
in connection with the Property; (e) all warranties and guaranties, whether
written or oral, from any third Person which directly or indirectly relate
to
all or part of the Property or personal property described in parts (a) through
(d) of this Section 7.1; (f) all legal and equitable claims, causes of action,
and rights against architects, engineers, designers, contractors,
subcontractors, suppliers, materialmen and any other Persons supplying labor,
services, materials or equipment, directly or indirectly, in connection with
the
design, planning, construction, development, use, operation, maintenance,
or
marketing of all or part of the Property; (g) all Condemnation Claims,
Condemnation Proceeds, Property Claims (including commercial tort claims),
Property Proceeds, Insurance Claims, and Insurance Proceeds (regardless of
whether or not Beneficiary required Trustor to obtain or maintain in effect
the
Insurance Policy or Insurance Policies under which the Insurance Claims arise
or
the Insurance Proceeds are payable); (h) all real property tax refund claims,
general intangibles (including payment intangibles), letters of credit,
letter-of-credit rights, supporting obligations, accounts, deposit accounts,
documents, instruments, chattel paper (including electronic chattel paper
and
tangible chattel paper), health-care-insurance receivables, and accounts
receivable relating to the design, planning, construction, development, use,
operation, maintenance or marketing of all or part of the Property or any
business now or hereafter conducted on the Property, including any right
to
payment for goods sold or leased or to be sold or leased or for services
rendered or to be rendered, however evidenced, including purchase orders,
negotiable documents, notes, drafts, acceptances, claims, instruments, insurance
policies, and all other forms of obligations and receivables; and (i) all
products and proceeds of any or all of the foregoing personal property,
including all money, deposit accounts, accounts, chattel paper, documents,
notes, drafts, instruments, insurance proceeds, and all other tangible and
intangible property resulting from the sale, lease, or other disposition
of any
or all of the foregoing personal property.
7.2
Filinq.
Trustor
agrees that Beneficiary may file this Deed of Trust, or a reproduction thereof,
in the real estate records or other appropriate index, as a financing statement
for any of the items of Personal Property Collateral specified in Section 7.1
above which is or may be part of the Property. Any reproduction of this Deed
of
Trust or of any other security agreement or financing statement shall be
sufficient as a financing statement. Trustor (a) irrevocably authorizes
Beneficiary to file a financing statement with respect to any or all of the
Personal Property Collateral and such other financing statements, addenda
thereto, and financing statement amendments, termination statements,
continuation statements, and assignments in such filing offices or with such
other Governmental Authorities as Beneficiary may deem to be necessary or
appropriate in order to perfect the security interest granted to Beneficiary
under this Article 7 or to otherwise effectuate the terms of this Article 7;
(b)
agrees to execute and deliver to Beneficiary, upon Beneficiary's request, any
or
all of such documents in such form as Beneficiary may require to perfect the
security interest granted to Beneficiary under this Article 7 or to otherwise
effectuate the terms of this Article 7. Trustor shall pay all costs of filing
of
such financing statements and any extensions, renewals, amendments and releases
thereof, and shall pay all costs and expenses of any record searches for
financing statements that Beneficiary may reasonably require.
7.3
Additional
Covenants of Trustor. Trustor,
at its sole cost and expense, (a) shall give Beneficiary at least thirty (30)
days prior written notice of (i) if Trustor is an individual, any change in
Trustor's
principal residence; (ii) if Trustor is a registered organization as to which
the state or other Governmental Authority under which Trustor is organized
maintains a public record showing Trustor to have been organized (a "Registered
Organization"), any change in the state or Governmental Authority under which
Trustor is organized; (iii) if Trustor is an organization which is not a
Registered Organization, any change in Trustor's place of business or chief
executive office; and (iv) the acquisition or use of a trade name or style
by
Trustor; (b) shall promptly notify Beneficiary in writing of any claim, lien,
security interest, right, encumbrance or any other occurrence which may be
adverse to Beneficiary's security interest in the Personal Property Collateral;
(c) shall defend the Personal Property Collateral from all claims, liens,
security interests, rights, encumbrances and other matters which are adverse
to
Beneficiary's security interest in the Personal Property Collateral; (d) shall
promptly pay all costs and expenses relating to the purchase, ownership, or
use
of the Personal Property Collateral, including all liens, taxes, assessments
and
charges of Governmental Authorities levied, assessed or imposed on all or part
of the Personal Property Collateral; (e) shall not sell, transfer, pledge,
hypothecate, lease or otherwise dispose of or abandon all or part of the
Personal Property Collateral without Beneficiary's prior written consent, except
for the sale of inventory in the ordinary course of Trustor's business, the
disposition of any Personal Property Collateral which is obsolete or which
has a
de minimus value, and the disposition of any Personal Property Collateral which
is promptly replaced with new Personal Property
23 TRUSTOR'S
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Collateral
of substantially comparable value and utility; (f) shall not remove any material
part of the Personal Property Collateral which consists of tangible personal
property from its location on the Property without Beneficiary's prior written
consent, except for the sale of inventory in the ordinary course of Trustor's
business, the disposition of any Personal Property Collateral which is obsolete
or which has a de minimus value, and the disposition of any Personal Property
Collateral which is promptly replaced with new Personal Property Collateral
of
substantially comparable value and utility; (g) shall, upon Beneficiary's
request, give notice, in form and substance acceptable to Beneficiary, to any
or
all account debtors or Persons obligated on an instrument designated by
Beneficiary of Trustor's grant of a security interest in any Personal Property
Collateral which consists of accounts, contract rights, instruments, documents,
or general intangibles (referred to collectively as the "Accounts" and
individually as an "Account"); (h) following the occurrence of any Event of
Default, shall not compromise, settle, adjust, or grant any discount, credit,
or
allowance to any Account debtor without Beneficiary's prior written consent;
(i)
shall undertake any and all other acts necessary or appropriate to maintain,
preserve and protect the Personal Property Collateral and Beneficiary's security
interest therein, including any actions requested by Beneficiary; and (j) shall
execute and deliver to Beneficiary such other documents as Beneficiary may
request in order to evidence, effectuate, perfect, maintain, preserve or protect
Beneficiary's security interest in the Personal Property Collateral, including
security agreements and assignments. If Trustor fails to execute and deliver
to
Beneficiary any document requested by Beneficiary pursuant Section 7.3(j) within
ten (10) days after such request, then Trustor irrevocably appoints Beneficiary,
with full power of substitution, as Trustor's attorney-in-fact, coupled with
an
interest, with full power, in its own name or in the name of Trustor, to execute
such document on behalf of Trustor. Trustor has set forth above its full and
correct name, and Trustor does not presently use any other names or tradenames,
except for those tradenames specifically disclosed in writing by Trustor to
Beneficiary prior to the recordation of this Deed of Trust. Nothing contained
in
this Article 7 shall be construed to obligate Beneficiary to act on behalf
of
Trustor as attorney-in-fact.
7.4
Rights
and Additional Remedies of Beneficiary under Uniform Commercial
Code. Without
limiting Article 4 above, upon the occurrence of an Event of Default,
Beneficiary shall have the following additional rights and remedies with respect
to the Personal Property Collateral: (a) Beneficiary shall have all the rights
and remedies of a secured party under the Code and under any other applicable
law, and, at Beneficiary's option, shall also have the right to invoke any
or
all of the remedies provided in Article 4 of this Deed of Trust with respect
to
the Personal Property Collateral, and in exercising any of such remedies,
Beneficiary may proceed against the items of real property and any items of
Personal Property Collateral separately or together and in any order whatsoever,
without in any way affecting the availability of Beneficiary's remedies under
the Code or of the remedies provided in Article 4 of this Deed of Trust; (b)
Beneficiary, at its option, shall have the right (i) to direct any or all
Account debtors to make payment directly to Beneficiary; (ii) to demand,
collect, receive and give receipts for any and all money and other property
due
or to become due in connection with all or part of the Personal Property
Collateral, including any of the Accounts; (iii) to take possession of and
endorse and collect any or all notes, checks, drafts, money orders, or other
instruments of payment relating to all or part of the Personal Property
Collateral or proceeds of the Personal Property Collateral, including any of
the
Accounts; and (iv) to file any claim and take any other action which Beneficiary
determines to be appropriate for the purpose of collecting any or all of the
Accounts and to compromise, adjust or settle Accounts for less than face value
thereof, and to execute all releases and other documents in connection
therewith; provided, however, that Beneficiary shall not be obligated in any
manner to make any demand for or to make any inquiry as to the nature or
sufficiency of any payment received by it, or to present or file any claim
or
take any action to collect or enforce the payment of any or all of the Accounts;
(c) should Beneficiary seek to take possession of any or all of the Personal
Property Collateral by court process, Trustor irrevocably and unconditionally
agrees that a receiver may be appointed by a court for such purpose without
regard to the adequacy of the security for the Obligations; and (d) Trustor
irrevocably appoints Beneficiary, with full power of substitution, as Trustor's
attorney-in-fact, coupled with an interest, with full power, in its own name
or
in the name of Trustor to take any or all of the actions described in Section
7.4(b) after the occurrence of an Event of Default. Beneficiary, at its option,
and whether or not an Event of Default exists, shall at all times have the
right
[A] to take such actions as Beneficiary determines to be necessary or
appropriate to maintain, preserve and protect the Personal Property Collateral
and Beneficiary's security interest therein; and [B] to give notice to any
Account debtor containing such information and instructions concerning the
existence of Beneficiary's security interest and rights in the Personal Property
Collateral under this Deed of Trust as Beneficiary determines to be necessary
or
appropriate to protect its interest.
7.5Fixtures. The
Personal Property Collateral in which Beneficiary has a security interest under
this Article 7 includes goods which are or may become Fixtures on the Property.
This Deed of Trust constitutes a fixture filing pursuant to the terms of Section
9502 of the Code which shall be recorded in the real estate records of the
county in which the Property is located and that relates to the Property more
particularly described in this Deed of Trust. In that regard, the following
information is provided:
Name
of
Debtor:
Northtown
Business Center, L.L.C., a Missouri
limited liability company
Address
of Debtor:
000 Xxxxxx Xxxx, Xxxxx Xxxxxx Xxxx, Xxxxxxxx 00000
Name
of
Secured Party:
Imperial
Capital Bank
Address
of Secured Party:
000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 0000
Glendale,
California
91203
24 TRUSTOR'S
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NOTICE
TO TRUSTOR: THIS DOCUMENT OR THE NOTE SECURED BY THIS DOCUMENT MAY CONTAIN
PROVISIONS FOR A VARIABLE INTEREST RATE AND FOR VARIABLE PAYMENT
AMOUNTS.
SEE
RIDER ATTACHED HERETO AND INCORPORATED HEREIN BY THIS REFERENCE FOR ADDITIONAL
TERMS AND CONDITIONS REGARDING, AMONG OTHER MATTERS, ENVIRONMENTAL COMPLIANCE
AND INDEMNIFICATION BY TRUSTOR.
TRUSTOR:
Northtown
Business Center, L.L.C., a Missouri limited liability
company
By: /s/
Xxxx Xxxxx
Xxxx
Xxxxx,
Manager
25 TRUSTOR'S
INITIALS: /s/
CS mgr.
REQUEST
FOR FULL RECONVEYANCE
(To
be
used only when the Note and all other indebtedness
secured
by this Deed of Trust have been paid in full)
TO:
TRUSTEE
The
undersigned is the legal owner and holder of all indebtedness secured by this
Deed of Trust. All
sums
secured by this Deed of Trust have been fully paid and satisfied, and you are
hereby requested and
directed, on payment to you of all sums owing to you under the terms of this
Deed of Trust, to cancel
all
evidences of indebtedness delivered to you and secured by this Deed of Trust
and
to reconvey, without warranty, the estate now held by you hereunder to the
parties designated by the terms of this Deed of Trust.
MAIL
RECONVEYANCE TO:
| Northtown Business Center LLC | /s/ Xxxx Xxxxx |
| 000 Xxxxxx Xxxx | By: Xxxx Xxxxx |
| Kansas City, MO 64116 | Title: Manager |
| Dated: 8/25/06 |
26 TRUSTOR'S
INITIALS: /s/
CS
mgr.
EXHIBIT
"A"
LEGAL
DESCRIPTION
THE
REAL PROPERTY REFERRED TO HEREIN IS ALL THAT CERTAIN REAL
PROPERTY LOCATED IN THE CITY OF NORTH KANSAS CITY, COUNTY OF CLAY, STATE OF
MISSOURI DESCRIBED AS FOLLOWS:
SEE
EXHIBIT "A" - LEGAL DESCRIPTION ATTACHED HERETO AND MADE A
PART HEREWITH.
ASSESSOR'S
PARCELITAX ID NO.: 17-605-00-01-007-000
COMMONLY
KNOWN AS: 000
XXXX 00XX XXXXXX
(000
XXXX 00XX XXX AND 115 WEST 26TH AVE)
NORTH
KANSAS CITY,
MISSOURI 64116
END
OF LEGAL DESCRIPTION
27 TRUSTOR'S
INITIALS: /s/
CS mgr.
STATE
OF
____________
)SS.
_________
OF _________
On
this______day
of ___________ ,
200_,
before me, a Notary Public in and for said State, personally appeared
___________,
to me
personally known, who, being by me duly sworn, did say
that
he is the President
of ___________, a
___________corporation,
[and that
the
seal affixed to the foregoing instrument is the corporate seal of said
corporation / and that said corporation has no corporate seal] and that said
instrument was signed [and sealed] in behalf of said corporation by authority
of
its board of directors, and said person acknowledged said instrument to be
the
free act and deed of said corporation.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal on
the
day and year first above written,
in
the__________and
State
aforesaid.
_____________________________
Notary Public
[SEAL]
My
Commission expires:
________________
Individual
Notary
STATE
OF
____________
)SS.
_________
OF _________
On
this________ day
of ______________ ,
200_,
before me, a Notary Public in and for said State, personally appeared____________ [and
_________________ [husband
and wife], to me known to be the person/s described in and
who
executed the foregoing instrument, and acknowledged that s/he/they executed
the
same as his/her/their free act and deed.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal on
the
day and year first above written,
in
the____________ and
State
aforesaid.
___________________
Notary
Public
[SEAL]
My
Commission expires:
_____________________
28 TRUSTOR'S
INITIALS: /s/
CS mgr.
Partnership
Notary
STATE
OF Missouri )
)SS.
County OF
Clay
On
this
28th day
of
August,
2006, before me, a Notary Public in and for said State,
personally
appeared
Xxxx Xxxxx ,
a
partner of manager of,
a
Northtown Bus. Ctr. general/limitedLLCpartnership,
to me personally known to be the person who executed the within instrument
in
behalf of said partnership and acknowledged to me that s/he executed the same
for the purposes therein stated.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal on
the
day and year first above written,
in
the County and
State
aforesaid.
Xxxxxxxxx
Xxxxxxx
Notary
Public
[SEAL]
XXXXXXXXX
XXXXXXX
Notary
Public - Notary Seal
STATE
OF
MISSOURI
PLATTE
COUNTY
MY
COMMISSION EXP. OCT. 5, 2006
My
Commission expires:
10-5-06
29 TRUSTOR'S
INITIALS: /s/
CS mgr.
Exhibit
"A"
All
that
part of the Northwest Quarter of Section 14, Township 50, Range 33, in North
Kansas City, Clay
County,
Missouri, being more particularly described as follows: Beginning at a
point on the North right
of
way
line of West 23rd Avenue, as established by Document No. B-62157 in Book 773
at
Page 454,
North
89
degrees 09 minutes 08 seconds West, 373.50 feet from the West right of way
line
of Burlington
Street
(US Highway Route No. 71), as now established; thence continuing North 89
degrees 09 minutes
08
seconds West along said North right of way line, a distance of 545.08 feet
to a
point on the East line
of
that
certain tract of land described in Book 366 at Page 294, recorded December
3,
1946; thence
North
0
degrees 50 minutes 52 seconds East along said East line, 240 feet to the
Northeast corner of
said
certain tract of land; thence North 89 degrees 09 minutes 08 seconds West along
the North line of
said
tract of land, 185.78 feet to the Northwest corner thereof, being also a point
on the Easterly right of
way
line
of the Burlington Northern Railroad Company (formerly CB&Q Railroad Co.):
thence North 7
degrees
31 minutes 44 seconds West along said Easterly right of way line, a distance
of
529.57 feet to
an
angle
point therein; thence North 2 degrees 37 minutes 55 seconds East, 52.76 feet
to
a point on the
South
line of that certain tract of land described in Document No. A-72251 in Book
539
at Page 408;
thence
South 89 degrees 08 minutes 42 seconds East along the South line of said certain
tract of land,
79.42
feet to the Southeast corner thereof; thence North 0 degrees 51 minutes 18
seconds East along
the
East
line of said tract of land, 52 feet to a point on the South right of way line
of
West 26th Avenue,
as
now
established by Document No. B-62157 in Book 773 at Page 454; thence South 89
degrees 08
minutes
42 seconds East along said South right of way line, 301 feet; thence South
2
degrees 42
minutes
55 seconds West, no longer along said South right of way line, 168.64 feet;
thence South 89
degrees
08 minutes 42 seconds East, parallel with said South right of way line, 431.5
feet; thence South
0
degrees
51 minutes 11 seconds West, 700 feet to Point of Beginning.
30
