Exhibit 10.22
Recording Requested By,
And After Recording,
Return To:
▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Loan Documentation
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DEED OF TRUST
AND ASSIGNMENT OF RENTS AND LEASES
THIS DEED OF TRUST AND ASSIGNMENT (this "Deed of Trust") is executed as of
March 21, 2000, by INFONET SERVICES CORPORATION, a Delaware corporation
("Trustor"), to AMERICAN SECURITIES COMPANY, a corporation ("Trustee"), for the
benefit of ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION ("Beneficiary").
ARTICLE ▇. ▇▇▇▇▇ IN TRUST
1.01 Grant. For the purposes and upon the terms and conditions in this
Deed of Trust, Trustor irrevocably grants, conveys and assigns to Trustee, in
trust for the benefit of Beneficiary, with power of sale and right of entry and
possession. Trustor's interest in: (a) all real property located in Los Angeles
County, California, and described on Exhibit A attached hereto; (b) all
easements, rights-of-way and rights used in connection with or as a means of
access to any portion of said real property; (c) all tenements, hereditaments
and appurtenances thereof and thereto; (d) all right, title and interest of
Trustor, now owned or hereafter acquired, in and to any land lying within the
right-of-way of any street, open or proposed, adjoining said real property, and
any and all sidewalks, alleys and strips and gores of land adjacent to or used
in connection with said real property; (e) all buildings, improvements and
landscaping now or hereafter erected or located on said real property: (f) all
development rights, governmental or quasi-governmental licenses, permits or
approvals, zoning rights and other similar rights or interests which relate to
the development, use or operation of, or that benefit or are appurtenant to,
said real property; (g) all mineral rights, oil and gas rights, air rights,
water or water rights, including without limitation, all ▇▇▇▇▇, canals, ditches
and reservoirs of any nature and all rights thereto, appurtenant to or
associated with said real property, whether decreed or undecreed, tributary or
non-tributary, surface or underground, appropriated or unappropriated, and all
shares of stock in any water, canal, ditch or reservoir company, and all well
permits, water service contracts, drainage rights and other evidences of any
such rights; and (h) all interest or estate which Trustor now has or may
hereafter acquire in said real property and all additions and accretions
thereto, and all awards or payments made for the taking of all or any portion of
said real property by eminent domain or any proceeding or purchase in lieu
thereof, or any damage to any portion of said real property (collectively, the
"Subject Property"). The listing of specific rights or property shall not be
interpreted as a limitation of general terms.
1.02 Address. The address of the Subject Property (if known) is: ▇▇▇▇ ▇.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇. Neither the failure to designate an
address nor any inaccuracy in the address designated shall affect the validity
or priority of the lien of this Deed of Trust on the Subject Property as
described on Exhibit A. In the event of any conflict between the provisions of
Exhibit A and said address, Exhibit A shall control.
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ARTICLE II. OBLIGATIONS SECURED
2.01 Obligations Secured. Trustor makes this grant end assignment for the
purpose of securing the following obligations (each, a "Secured Obligation" and
collectively, the "Secured Obligations"):
(a) payment to Beneficiary of all sums at any time owing and performance
of all other obligations arising under or in connection with that certain
promissory note ("Note") dated as of March 21, 2000, in the maximum principal
amount of Twenty-Five Million Five Hundred Fifteen Thousand Dollars
($25,515,000.00), with interest as provided therein, executed by Infonet
Services Corporation and payable to Beneficiary or its order, together with the
payment and performance of any other indebtedness or obligations incurred in
connection with the credit accommodation evidenced by the Note, whether or not
specifically referenced therein; and
(b) payment and performance of all obligations of Trustor under this Deed
of Trust, together with all advances, payments or other expenditures made by
Beneficiary or Trustee as or for the payment or performance of any such
obligations of Trustor; and
(c) payment and performance of all obligations, if any, and the contracts
under which they arise, which any rider attached to and recorded with this Deed
of Trust recites are secured hereby; and
(d) payment and performance of all future advances and other obligations
that the then record owner of the Subject Property may agree. to pay and/or
perform (whether as principal, surety or guarantor) for the benefit of
Beneficiary, when any such advance or other obligation is evidenced by a writing
which recites that it is secured by this Deed of Trust; and
(e) all modifications, extensions and renewals of any of the Secured
Obligations (including without limitation, (i) modifications, extensions or
renewals at a different rate of interest, or (ii) deferrals or accelerations of
the required principal payment dates or interest payment dates or both, in whole
or in part), however evidenced, whether or not any such modification, extension
or renewal is evidenced by a new or additional promissory note or notes.
2.02 Obligations. The term "obligations" is used herein in its most
comprehensive sense and includes any and all advances, debts, obligations and
liabilities heretofore, now or hereafter made, incurred or created, whether
voluntary or involuntary and however arising, whether due or not due, absolute
or contingent, liquidated or unliquidated, determined or undetermined, joint or
several, including without limitation, all principal, interest, charges,
including prepayment charges and late charges, and loan fees at any time
accruing or assessed on any Secured Obligation.
2.03 Incorporation. All terms of the Secured Obligations are incorporated
herein by this reference. All persons who may have or acquire an interest in the
Subject Property are hereby deemed to have notice of the terms of the Secured
Obligations and to have notice, if provided therein, that: (a) the Note or any
other Secured Obligation may permit borrowing; repayment and reborrowing; and
(b) the rate of interest on one or more of the Secured Obligations may vary from
time to time.
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ARTICLE III. ASSIGNMENT OF RENTS
3.01 Assignment. For the purposes and upon the terms and conditions set
forth herein, Trustor irrevocably assigns to Beneficiary all of Trustor's right,
title and interest in, to and under all leases, licenses, rental agreements and
other agreements of any kind relating to the use or occupancy of any of the
Subject Property, whether existing as of the date hereof or at any time
hereafter entered into, together with all guarantees of and security for any
tenant's or lessee's performance thereunder, and all amendments, extensions,
renewals and modifications thereto (each, a "Lease" and collectively, the
"Leases"), together with any and all other rents, issues and profits of the
Subject Property (collectively, "Rents"). This Assignment shall not impose upon
Beneficiary any duty to produce Rents from the Subject Property, nor cause
Beneficiary to be: (a) a "mortgagee in possession for any purpose; (b)
responsible for performing any of the obligations of the lessor or landlord
under any Lease; or (c) responsible for any waste committed by any person or
entity at any time in possession of the Subject Property or any part thereof, or
for any dangerous or defective condition of the Subject Property, or for any
negligence in the management, upkeep, repair or control of the Subject Property.
This is an absolute assignment, not an assignment for security only, and
Beneficiary's right to Rents is not contingent upon and may be exercised without
possession of the Subject Property. Trustor agrees to execute and deliver to
Beneficiary, within five (5) days of Beneficiary's written request, such
additional documents as Beneficiary or Trustee may reasonably request to further
evidence the assignment to Beneficiary of any and all Leases and Rents.
3.02 Protection of Security. To protect the security of this Assignment,
Trustor agrees:
(a) At Trustor's sole cost and expense: (i) to perform each obligation to
be performed by the lessor or landlord under each Lease and to enforce or secure
the performance of each obligation to be performed by the lessee or tenant under
each Lease; (ii) not to modify any Lease in any material respect, nor accept
surrender under or terminate the term of any Lease; (iii) not to anticipate the
Rents under any Lease; and (iv) not to waive or release any lessee or tenant of
or from any Lease obligations. Trustor assigns to Beneficiary all of Trustor's
right and power to modify the terms of any Lease, to accept a surrender under or
terminate the term of or anticipate the Rents under any Lease, and to waive or
release any lessee or tenant of or from any Lease obligations, and any attempt
on the part of Trustor to exercise any such rights or powers without
Beneficiary's prior written consent shall be a breach of the terms hereof.
(b) At Trustee's sole cost and expense, to defend any action in any manner
connected with any Lease or the obligations thereunder, and to pay all costs of
Beneficiary or Trustee, including reasonable attorneys' fees, in any such action
in which Beneficiary or Trustee may appear.
(c) That, should Trustor fail to do any act required to be done by Trustor
under a Lease, then Beneficiary or Trustee, but without obligation to do so and
without notice to Trustor and without releasing Trustor from any obligation
hereunder, may make or do the same in such manner and to such extent as
Beneficiary or Trustee deems necessary to protect the security hereof, and, in
exercising such powers, Beneficiary or Trustee may employ attorneys and other
agents, and Trustor shall pay necessary costs and reasonable attorneys' fees
incurred by Beneficiary or Trustee, or their agents, in the exercise of the
powers granted herein. Trustor shall give prompt notice to Beneficiary of any
default by any lessee or tenant under any Lease, and of any notice of default on
the part of Trustor under any Lease received from a lessee or tenant thereunder,
together with an accurate and complete copy thereof.
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(d) To pay to Beneficiary immediately upon demand all sums expended under
the authority hereof, including reasonable attorneys' fees, together with
interest thereon at the highest rate per annum payable under any Secured
Obligation, and the same, at Beneficiary's option, may be added to any Secured
Obligation and shall be secured hereby.
3.03 License. Beneficiary confers upon Trustor a license ("License") to
collect and retain the Rents as, but not before, they come due and payable,
until the occurrence of any Default. Upon the occurrence of any Default, the
License shall be automatically revoked, and Beneficiary or Trustee may, at
Beneficiary's option and without notice, either in person or by agent, with or
without bringing any action, or by a receiver to be appointed by a court: (a)
enter, take possession of, manage and operate the Subject Property or any part
thereof; (b) make, cancel, enforce or modify any Lease; (c) obtain and evict
tenants, fix or modify Rents, and do any acts which Beneficiary or Trustee deems
proper to protect the security hereof; and (d) either with or without taking
possession of the Subject Property, in its own name, sue for or otherwise
collect and receive all Rents, including those past due and unpaid, and apply
the same in accordance with the provisions of this Deed of Trust. The entering
and taking possession of the Subject Property, the collection of Rents and the
application thereof as aforesaid, shall not cure or waive any Default, nor
waive, modify or affect any notice of default hereunder, nor invalidate any act
done pursuant to any such notice. The License shall not grant to Beneficiary or
Trustee the right to possession, except as provided in this Deed of Trust.
ARTICLE IV. RIGHTS AND DUTIES OF THE PARTIES
4.01 Title. Trustor warrants that, except as disclosed to Beneficiary
prior to the date hereof in a writing which refers to this warranty, Trustor
lawfully possesses and holds fee simple title to, or if permitted by Beneficiary
in writing a leasehold interest in, the Subject Property without limitation on
the right to encumber, as herein provided, and that this Deed of Trust is a
valid lien on the Subject Property and all of Trustor's interest therein.
4.02 Taxes and Assessments. Subject to the right, if any, of Trustor to
contest payment of the following pursuant to any other agreement between Trustor
and Beneficiary, Trustor shall pay prior to delinquency all taxes, assessments,
levies and charges imposed: (a) by any public or quasi-public authority or
utility company which are or which may become a lien upon or cause a loss in
value of the Subject Property or any interest therein; or (b) by any public
authority upon Beneficiary by reason of its interest in any Secured Obligation
or in the Subject Property, or by reason of any payment made to Beneficiary
pursuant to any Secured Obligation; provided however, that Trustor shall have no
obligation to pay any income taxes of Beneficiary. Promptly upon request by
Beneficiary, Trustor shall furnish to Beneficiary satisfactory evidence of the
payment of all of the foregoing. Beneficiary is hereby authorized to request and
receive from the responsible governmental and nongovernmental personnel written
statements with respect to the accrual and payment of any of the foregoing.
4.03 Performance of Secured obligations. Trustor shall promptly pay and
perform each Secured Obligation when due.
4.04 Liens, Encumbrances and Charges. Trustor shall immediately discharge
any lien on the Subject Property not approved by Beneficiary in writing. Except
as otherwise provided in any Secured Obligation or other agreement with
Beneficiary, Trustor shall pay when due all obligations secured by or reducible
to liens and encumbrances which shall now or hereafter encumber the Subject
Property, whether senior or subordinate hereto, including without limitation,
any mechanics' liens. Notwithstanding the foregoing, Trustor may delay
discharging any such lien (if it is an involuntary lien) or paying any such
obligation if Trustor is in good faith
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contesting such lien or obligation, so long as Trustor has made provision, to
Beneficiary's satisfaction, for the eventual payment of any such obligation if
Trustor is obligated to make such payment, and any such lien is stayed pending
appeal and insured against in a manner satisfactory to Beneficiary.
4.05 Insurance. Trustor shall insure the Subject Property against loss or
damage by fire and such other risks as Beneficiary shall from time to time
require. Trustor shall carry public liability insurance, flood insurance as
required by applicable law and such other insurance as Beneficiary may
reasonably require, including without limitation, business interruption
insurance or loss of rental value insurance. Trustor shall maintain all required
insurance at Trustor's expense, under policies issued by companies and in form
and substance satisfactory to Beneficiary. Neither Beneficiary nor Trustee, by
reason of accepting, rejecting, approving or obtaining insurance, shall incur
any liability for: (a) the existence, nonexistence, form or legal sufficiency
thereof; (b) the solvency of any insurer, or (c) the payment of losses. All
policies and certificates of insurance shall name Beneficiary as loss payee, and
shall provide that the insurance cannot be terminated as to Beneficiary except
upon a minimum of ten (10) days' prior written notice to Beneficiary.
Immediately upon any request by Beneficiary, Trustor shall deliver to
Beneficiary the original of all such policies or certificates, with receipts
evidencing annual prepayment of the premiums.
4.06 Tax and Insurance Impounds. Upon the occurrence of a Default, at
Beneficiary's option and upon its demand, Trustor shall, until all Secured
Obligations have been paid in full, pay to Beneficiary monthly, annually or as
otherwise directed by Beneficiary an amount estimated by Beneficiary to be equal
to: (a) all taxes, assessments, levies and charges imposed by any public or
quasi-public authority or utility company which are or may become a lien upon
the Subject Property and will become due for the tax year during which such
payment is so directed; and (b) premiums for fire, other hazard and mortgage
insurance next due. If Beneficiary determines that amounts paid by Trustor are
insufficient for the payment in full of such taxes, assessments, levies and/or
insurance premiums, Beneficiary shall notify Trustor of the increased amount
required for the payment thereof when due, and Trustor shall pay to Beneficiary
such additional amount within thirty (30) days after notice from Beneficiary.
All amounts so paid shall not bear interest, except to the extent and in the
amount required by law. So long as there is no Default, Beneficiary shall apply
said amounts to the payment of, or at Beneficiary's sole option release said
funds to Trustor for application to and payment of, such taxes, assessments,
levies, charges and insurance premiums. If a Default exists, Beneficiary at its
sole option may apply all or any part of said amounts to any Secured Obligation
and/or to cure such Default, in which event Trustor shall be required to restore
all amounts so applied, as well as to cure any Default not cured by such
application. Trustor hereby grants and transfers to Beneficiary a security
interest in all amounts so paid and held in Beneficiary's possession, and all
proceeds thereof, to secure the payment and performance of each Secured
Obligation. Upon assignment of this Deed of Trust, Beneficiary shall have the
right to assign all amounts collected and in its possession to its assignee,
whereupon Beneficiary and Trustee shall be released from all liability with
respect thereto. The existence of said impounds shall not limit Beneficiary's
rights under any other provision of this Deed of Trust or any other agreement,
statute or rule of law. Within ninety-five (95) days following full repayment of
all Secured Obligations (other than as a consequence of a foreclosure or
conveyance in lieu of foreclosure of the liens and security interests securing
any Secured Obligation), or at such earlier time as Beneficiary in its
discretion may elect, the balance of all amounts collected and in Beneficiary's
possession shall be paid to Trustor, and no other party shall have any right of
claim thereto.
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4.07 Damages; Insurance and Condemnation Proceeds.
(a) (i) All awards of damages and all other compensation payable directly
or indirectly by reason of a condemnation or proposed condemnation (or transfer
in lieu thereof) for public or private use affecting the Subject Property; (ii)
all other claims and awards for damages to or decrease in value of the Subject
Property; (iii) all proceeds of any insurance policies payable by reason of loss
sustained to the Subject Property; and (iv) all interest which may accrue on any
of the foregoing, are all absolutely and irrevocably assigned to and shall be
paid to Beneficiary. At the absolute discretion of Beneficiary, whether or not
its security is or may be impaired, but subject to applicable law if any, and
without regard to any requirement contained in any other Section hereof,
Beneficiary may apply all or any of the proceeds it receives to its expenses in
settling, prosecuting or defending any such claim and apply the balance to the
Secured Obligations in any order, and release all or any part of the proceeds to
Trustor upon any conditions Beneficiary may impose. Beneficiary may commence,
appear in, defend or prosecute any assigned claim or action, and may adjust,
compromise, settle and collect all claims and awards assigned to Beneficiary;
provided however, that in no event shall Beneficiary be responsible for any
failure to collect any claim or award, regardless of the cause of the failure.
Notwithstanding the foregoing, if insurance proceeds payable by reason of loss
sustained to the Subject Property are less than or equal to $500,000.00, then,
so long as no Default has occurred and is continuing, Beneficiary shall release
such proceeds to Trustor and Trustor shall use such proceeds to repair or
restore the Subject Property. If insurance proceeds payable by reason of loss
sustained to the Subject Property are greater than $500,000.00 but less than or
equal to $10,000,000.00, so long as no Default has occurred and is continuing
hereunder, Beneficiary shall release such proceeds to Trustor upon any
conditions Beneficiary may impose for the repair and restoration of the Subject
Property; provided, however, if the insurance proceeds are insufficient to
repair or restore the Subject Property, as determined by Beneficiary, then
Trustor shall deposit with Beneficiary an amount sufficient to cover such
deficiency, which funds shall be used by Trustor to repair or restore the
Subject Property.
(b) At its sole option, Beneficiary may permit insurance or condemnation
proceeds held by Beneficiary to be used for repair or restoration but may impose
any conditions on such use as Beneficiary deems necessary.
4.08 Maintenance and Preservation of Subject Property. Subject to the
provisions of any Secured Obligation, Trustor covenants:
(a) to keep the Subject Property in good condition and repair;
(b) except with Beneficiary's prior written consent, not to remove or
demolish the Subject Property, nor alter, restore or add to the Subject
Property, nor initiate or acquiesce in any change in any zoning or other land
classification which affects the Subject Property;
(c) to restore promptly and in good workmanlike manner any portion of the
Subject Property which may be damaged or destroyed, unless Beneficiary requires
that all of the insurance proceeds be used to reduce the Secured Obligations as
provided in Section 4.07 hereof;
(d) to comply with and not to suffer violation of any or all of the
following which govern acts or conditions on, or otherwise affect the Subject
Property: (i) laws, ordinances, regulations, standards and judicial and
administrative rules and orders; (ii) covenants, conditions, restrictions and
equitable servitudes, whether public or private; and (iii) requirements of
insurance companies and any bureau or agency which establishes standards of
insurability;
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(e) not to commit or permit waste of the Subject Property; and
(f) to do all other acts which from the character or use of the Subject
Property may be reasonably necessary to maintain and preserve its value.
4.09 Hazardous Substances; Environmental Provisions. Trustor represents
and warrants to Beneficiary as follows:
(a) Except as disclosed to Beneficiary in writing prior to the date
hereof, the Subject Property is not and has not been a site for the use,
generation, manufacture, storage, treatment, disposal, release or threatened
release, transportation or presence of any substances which are "hazardous
substances," "hazardous wastes," "hazardous materials" or "toxic substances"
under the Hazardous Materials Laws, as defined below, and/or other applicable
environmental laws, ordinances and regulations (collectively, the "Hazardous
Materials").
(b) The Subject Property is in compliance with all laws, ordinances and
regulations relating to Hazardous Materials (collectively, the "Hazardous
Materials Laws"), including without limitation, the Clean Air Act, the Federal
Water Pollution Control Act, the Federal Resource Conservation and Recovery Act
of 1976, the Comprehensive Environmental Response Compensation and Liability
Act of 1980, the Superfund Amendments and Reauthorization Act of 1986, the
Federal Toxic Substances Control Act and the Occupational Safety and Health Act,
as any of the same may be amended, modified or supplemented from time to time,
and any other applicable federal, state or local environmental laws, and any
rules or regulations adopted pursuant to any of the foregoing.
(c) There are no claims or actions pending or threatened against Trustor
or the Subject Property by any governmental entity or agency, or any other
person or entity, relating to any Hazardous Materials or pursuant to any
Hazardous Materials Laws.
(d) Trustor hereby agrees to defend, indemnify and hold harmless
beneficiary, its directors, officers, employees, agents, successors and assigns,
from and against any and all losses, damages, liabilities, claims, actions,
judgments, court costs and legal or other expenses (including without
limitation, attorneys' fees and expenses) which Beneficiary may incur as a
direct or indirect consequence of the use, generation, manufacture, storage,
treatment, disposal, release or threatened release, transportation or presence
of Hazardous Materials in, on, under or about the Subject Property. Trustor
shall pay to Beneficiary immediately upon demand any amounts owing under this
indemnity, together with interest from the date of demand until paid in full at
the highest rate of interest applicable to any Secured Obligation (which rate
shall not be the "default rate" applicable to any such Secured Obligation until
thirty (30) days after the date of demand). TRUSTOR'S DUTY AND OBLIGATION TO
DEFEND, INDEMNIFY AND HOLD HARMLESS BENEFICIARY SHALL SURVIVE THE CANCELLATION
OF THE SECURED OBLIGATIONS AND THE RELEASE, RECONVEYANCE OR PARTIAL RECONVEYANCE
OF THIS DEED OF TRUST.
(e) Trustor shall immediately advise Beneficiary in writing upon Trustor's
discovery of any occurrence or condition on the Subject Property or on any real
property adjoining or in the vicinity of the Subject Property that does or could
cause all or any part of the Subject Property to be contaminated with any
Hazardous Materials or otherwise be in violation of any Hazardous Materials
Laws, or cause the Subject Property to be subject to any restrictions on the
ownership, occupancy, transferability or use thereof under any Hazardous
Materials Laws.
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(f) Trustor and Beneficiary agree that this Section 4.09 is intended as
Beneficiary's written request for information (and Trustor's response)
concerning the environmental condition of the Subject Property as required by
California Code of Civil Procedure ss.726.5, and that each representation and
warranty contained in this Section 4.09 (together with any indemnity applicable
to a breach of any such representation and warranty) with respect to the
environmental condition of the Subject Property is intended by Trustor and
Beneficiary to be an "environmental provision" for purposes of California Code
of Civil Procedure ss.736.
4.10 Protection of Security. Trustor shall, at Trustor's sole expense: (a)
protect, preserve and defend the Subject Property and Trustor's title and right
to possession of the Subject Property against all adverse claims; (b) if
Trustor's interest in the Subject Property is a leasehold interest or estate,
pay and perform in a timely manner all obligations to be paid and/or performed
by the lessee or tenant under the lease or other agreement creating such
leasehold interest or estate; and (c) protect, preserve and defend the security
of this Deed of Trust and the rights and powers of Beneficiary and Trustee under
this Deed of Trust against all adverse claims. Trustor shall give Beneficiary
and Trustee prompt notice in writing of the assertion of any claim, the filing
of any action or proceeding, or the occurrence of any damage, condemnation offer
or other action relating to or affecting the Subject Property and, If Trustor's
interest in the Subject Property is a leasehold interest or estate, of any
notice of default or demand for performance under the lease or other agreement
pursuant to which such leasehold interest or estate was created or exists.
4.11 Acceptance of Trust, Powers and Duties of Trustee. Trustee accepts
this trust when this Deed of Trust is executed. From time to time, upon written
request of Beneficiary and, to the extent required by applicable law
presentation of this Deed of Trust for endorsement, and without affecting the
personal liability of any person for payment of any indebtedness or performance
of any of the Secured Obligations, Beneficiary, or Trustee at Beneficiary's
direction, may, without obligation to do so or liability therefor and without
notice: (a) reconvey all or any part of the Subject Property from the lien of
this Deed of Trust; (b) consent to the making of any map or plat of the Subject
Property; and (c) join in any grant of easement or declaration of covenants and
restrictions with respect to the Subject Property, or any extension agreement or
any agreement subordinating the lien or charge of this Deed of Trust. Trustee or
Beneficiary may from time to time apply to any court of competent jurisdiction
for aid and direction in the execution of the trusts and the enforcement of its
rights and remedies available under this Deed of Trust, and may obtain orders or
decrees directing, confirming or approving acts in the execution of said trusts
and the enforcement of said rights and remedies. Trustee has no obligation to
notify any party of any pending sale or any action or proceeding (including, but
not limited to, actions in which Trustor, Beneficiary or Trustee shall be a
party) unless held or commenced and maintained by Trustee under this Deed of
Trust. Trustee shall not be obligated to perform any act required of it under
this Deed of Trust unless the performance of the act is requested in writing and
Trustee is reasonably indemnified against all losses, costs, liabilities and
expenses in connection therewith.
4.12 Compensation; Exculpation; Indemnification.
(a) Trustor shall pay all Trustee's fees and reimburse Trustee for all
expenses in the administration of this trust, including reasonable attorneys'
fees. Trustor shall pay Beneficiary reasonable compensation for services
rendered concerning this Deed of Trust, including without limitation, the
providing of any statement of amounts owing under any Secured Obligation.
Beneficiary shall not directly or indirectly be liable to Trustor or any other
person as a consequence of: (i) the exercise of any rights, remedies or powers
granted to Beneficiary in this Deed of Trust; (ii) the failure or refusal of
Beneficiary to perform or discharge any obligation or liability of Trustor under
this Deed of Trust or any Lease or other agreement related to the
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Subject Property; or (iii) any loss sustained by Trustor or any third party as a
result of Beneficiary's failure to lease the Subject Property after any Default
or from any other act or omission of Beneficiary in managing the Subject
Property after any Default unless such loss is caused by the willful misconduct
or gross negligence of Beneficiary; and no such liability shall be asserted or
enforced against Beneficiary, and all such liability is hereby expressly waived
and released by Trustor.
(b) Trustor shall indemnify Trustee and Beneficiary against, and hold them
harmless from, any and all losses, damages, liabilities, claims, causes of
action, judgments, court costs, attorneys' fees and other legal expenses, costs
of evidence of title, costs of evidence of value, and other expenses which
either may suffer or incur: (i) by reason of this Deed of Trust; (ii) by reason
of the execution of this trust or the performance of any act required or
permitted hereunder or by law; (iii) as a result of any failure of Trustor to
perform Trustor's obligations; or (iv) by reason of any alleged obligation or
undertaking of Beneficiary to perform or discharge any of the representations,
warranties, conditions, covenants or other obligations contained in any other
document related to the Subject Property, including without limitation, the
payment of any taxes, assessments, rents or other lease obligations, liens,
encumbrances or other obligations of Trustor under this Deed of Trust. Trustor's
duty to indemnify Trustee and Beneficiary shall survive the payment, discharge
or cancellation of the Secured Obligations and the release or reconveyance, in
whole or in part, of this Deed of Trust.
(c) Trustor shall pay all indebtedness arising under this Section 4.12
immediately upon demand by Trustee or Beneficiary, together with interest
thereon from the date such indebtedness arises at the highest rate per annum
payable under any Secured Obligation (which rate shall not be the "default rate"
applicable to any Secured Obligation until thirty (30) days after the date of
demand). Beneficiary may, at its option, add any such indebtedness to any
Secured Obligation.
4.13 Substitution of Trustees. From time to time, by a writing signed and
acknowledged by Beneficiary and recorded in the Office of the Recorder of each
County in which the Subject Property is situated, Beneficiary may appoint
another trustee to act in the place and stead of Trustee or any successor. Such
writing shall set forth the recordation date and any recording or other
information required by law. The recordation of such instrument of substitution
shall discharge Trustee herein named and shall appoint the new trustee as the
trustee hereunder with the same effect as if originally named Trustee herein. A
writing recorded pursuant to the provisions of this Section 4.13 shall be
conclusive proof of the proper substitution of such new Trustee.
4.14 Due on Sale or Encumbrance. Except as permitted by the provisions of
any Secured Obligation or applicable law, if the Subject Property or any
interest therein shall be sold, transferred (including without limitation, where
applicable, through sale or transfer of a majority or controlling interest of
the corporate stock, or any general partnership, limited liability company or
other similar interests, of Trustor), mortgaged, assigned, encumbered or leased,
whether voluntarily, involuntarily or by operation of law (each of which actions
and events is called a "Transfers"), without Beneficiary's prior written
consent, THEN Beneficiary may, at its sole option, declare all Secured
Obligations immediately due and payable in full. Trustor shall notify
Beneficiary in writing of each Transfer within ten (10) business days of the
date thereof. Notwithstanding the foregoing, Trustor may (a) grant utility
easements and access easements so long as such easements do not materially
adversely affect the use or value of the Subject Property, and (b) enter into
licenses or leases of up to thirty-three percent (33%) in the aggregate of the
building located on the Subject Property.
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4.15 Releases, Extensions, Modifications and Additional Security. Without
notice to or the consent, approval or agreement of any persons or entities
having any interest at any time in the Subject Property or in any manner
obligated under any Secured Obligation (each, an "Interested Party"),
Beneficiary may, from time to time, release any interested Party from liability
for the payment of any Secured Obligation, take any action or make any agreement
extending the maturity or otherwise altering the terms or increasing the amount
of any Secured Obligation, accept additional security, and enforce, waive,
subordinate or release all or a portion of the Subject Property or any other
security for any Secured Obligation. None of the foregoing actions shall release
or reduce the personal liability of any Interested Party, nor release or impair
the priority of the lien of this Deed of Trust upon the Subject Property.
4.16 Reconveyance. Upon Beneficiary's written request, and solely to the
extent required by applicable law upon surrender of this Deed of Trust and every
note or other instrument setting forth any Secured Obligations to Trustee for
cancellation. Trustee shall reconvey, without warranty, the Subject Property, or
that portion thereof then covered hereby, from the lien of this Deed of Trust.
The recitals of any matters or facts in any reconveyance executed hereunder
shall be conclusive proof of the truthfulness thereof. To the extent permitted
by law, the reconveyance may describe the grantee as "the person or persons
legally entitled thereto." Neither Beneficiary nor Trustee shall have any duty
to determine the rights of persons claiming to be rightful grantees of any
reconveyance. When the Subject Property has been fully reconveyed, the last such
reconveyance shall operate as a reassignment of all future Rents to the person
or persons legally entitled thereto. Upon Beneficiary's demand, Trustor shall
pay all costs and expenses incurred by Beneficiary in connection with any
reconveyance.
4.17 Subrogation. Beneficiary shall be subrogated to the lien of all
encumbrances, whether or not released of record, paid in whole or in part by
Beneficiary pursuant to this Deed of Trust or by the proceeds of any Secured
Obligation.
4.18 Trustor Different From Obligor ("Third Party Trustor"). As used in
this Section 4.18, the term "Obligor" shall mean each person or entity obligated
in any manner under any of the Secured Obligations; and the term "Third Party
Trustor" shall mean (1) each person or entity included in the definition of
Trustor herein and which is not an Obligor under all of the Secured Obligations,
and (2) each person or entity included in the definition of Trustor herein if
any Obligor is not included in said definition.
(a) Representations and Warranties. Each Third Party Trustor represents
and warrants to Beneficiary that (i) this Deed of Trust is executed at an
Obligor's request; (ii) this Deed of Trust complies with all agreements between
each Third Party Trustor and any Obligor regarding such Third Party Trustor's
execution hereof; (iii) Beneficiary has made no representation to any Third
Party Trustor as to the creditworthiness of any Obligor; and (iv) each Third
Party Trustor has established adequate means of obtaining from each Obligor on a
continuing basis financial and other information pertaining to such Obligor's
financial condition. Each Third Party Trustor agrees to keep adequately informed
from such means of any facts, events or circumstances which might in any way
affect such Third Party Trustor's risks hereunder. Each Third Party Trustor
further agrees that Beneficiary shall have no obligation to disclose to any
Third Party Trustor any information or material about any Obligor which is
acquired by Beneficiary in any manner. The liability of each Third Party Trustor
hereunder shall be reinstated and revived, and the rights of Beneficiary shall
continue if and to the extent that for any reason any amount at any time paid on
account of any Secured Obligation is rescinded or must otherwise be restored by
Beneficiary, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, all as though such amount had not been paid. The
determination as to whether any amount so paid must be rescinded or restored
shall be made by Beneficiary in its sole discretion; provided however, that if
Beneficiary chooses to contest any such matter at the
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request of any Third Party Trustor, each Third Party Trustor agrees to indemnify
and hold Beneficiary harmless from and against all costs and expenses, including
reasonable attorneys' fees, expended or incurred, by Beneficiary in connection
therewith, including without limitation, in any litigation with respect thereto.
(b) Waivers.
(i) Each Third Party Trustor waives any right to require Beneficiary
to: (A) proceed against any Obligor or any other person; (B) marshal assets or
proceed against or exhaust any security held from any Obligor or any other
person; (C) give notice of the terms, time and place of any public or private
sale of personal property security held from any Obligor or any other person, or
otherwise comply with any other provisions of Section 9504 of the California
Uniform Commercial Code; (D) take any action or pursue any other remedy in
Beneficiary's power; or (E) make any presentment or demand for performance, or
give any notice of nonperformance, protest, notice of protest or notice of
dishonor hereunder or in connection with any obligations or evidences of
indebtedness held by Beneficiary as security for or which constitute in whole or
in part the Secured Obligations, or in connection with the creation of new or
additional obligations.
(ii) Each Third Party Trustor waives any defense to its obligations
hereunder based upon or arising by reason of: (A) any disability or other
defense of any Obligor or any other person; (B) the cessation or limitation from
any cause whatsoever, other than payment in full, of any Secured Obligation; (C)
any lack of authority of any officer, director, partner, agent or any other
person acting or purporting to act on behalf of any Obligor which is a
corporation, partnership or other type of entity, or any defect in the formation
of any such Obligor; (D) the application by any Obligor of the proceeds of any
Secured Obligation for purposes other than the purposes represented by any
Obligor to, or intended or understood by, Beneficiary or any Third Party
Trustor; (E) any act or omission by Beneficiary which directly or indirectly
results in or aids the discharge of any Obligor or any portion of any Secured
Obligation by operation of law or otherwise, or which in any way impairs or
suspends any rights or remedies of Beneficiary against any Obligor, (F) any
impairment of the value of any interest in any security for the Secured
Obligations or any portion thereof, including without limitation, the failure to
obtain or maintain perfection or recordation of any interest in any such
security, the release of any such security without substitution, and/or the
failure to preserve the value of, or to comply with applicable law in disposing
of, any such security; or (G) any modification of any Secured Obligation, in any
form whatsoever, including without limitation the renewal, extension,
acceleration or other change in time for payment of, or other change in the
terms of, any Secured Obligation or any portion thereof, including increase or
decrease of the rate of interest thereon. Until all Secured Obligations shall
have been paid in full, no Third Party Trustor shall have any right of
subrogation, and each Third Party Trustor waives any right to enforce any remedy
which Beneficiary now has or may hereafter have against any Obligor or any other
person, and waives any benefit of, or any right to participate in, any security
now or hereafter held by Beneficiary. Each Third Party Trustor further waives
all rights and defenses it may have arising out of: (1) any election of remedies
by ▇▇▇▇▇▇▇▇▇▇▇, even though that election of remedies, such as a non-judicial
foreclosure with respect to any security for any portion of the Secured
Obligations, destroys such Third Party Trustor's rights of subrogation or such
Third Party Trustor's rights to proceed against any Obligor for reimbursement;
or (2) any loss of rights any Third Party Trustor may suffer by reason of any
rights, powers or remedies of any Obligor in connection with any anti-deficiency
laws or any other laws limiting, qualifying or discharging any Obligor's
obligations, whether by operation of Sections 726, 580a or 580d of the Code of
Civil Procedure as from time to time amended, or otherwise, including any rights
any Third Party Trustor may have to a Section 580a fair market value hearing to
determine the size of a
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deficiency following any trustee's foreclosure sale or other disposition of any
security for any portion of the Secured Obligations.
(iii) If any of said waivers is determined to be contrary to any
applicable law or public policy, such waiver shall be effective to the extent
permitted by applicable law or public policy.
ARTICLE V. DEFAULT PROVISIONS
5.01 Default. The occurrence of any of the following shall constitute a
"Default under this Deed of Trust: (a) any representation or warranty of Trustor
herein shall prove to be incorrect, false or misleading in any material respect
when made; or (b) any defined event of default under the Note.
5.02 Rights and Remedies. Upon the occurrence of any Default, and at any
time thereafter, Beneficiary and Trustee shall have all the following rights and
remedies:
(a) With or without notice, to declare all Secured Obligations immediately
due and payable in full.
(b) With or without notice, without releasing Trustor from any Secured
Obligation and without becoming a mortgagee in possession, to cure any Default
of Trustor and, in connection therewith: (i) to enter upon the Subject Property
and to do such acts and things as Beneficiary or Trustee deems necessary or
desirable to protect the security of this Deed of Trust, including without
limitation, to appear in and defend any action or proceeding purporting to
affect the security of this Deed of Trust or the rights or powers of Beneficiary
or Trustee hereunder; (ii) to pay, purchase, contest or compromise any
encumbrance, charge, lien or claim of lien which, in the judgment of either
Beneficiary or Trustee, is senior in priority to this Deed of Trust, the
judgment of Beneficiary or Trustee being conclusive as between the parties
hereto; (iii) to obtain, and to pay any premiums or charges with respect to, any
insurance required to be carried hereunder, and (iv) to employ counsel,
accountants, contractors and other appropriate persons to assist them.
(c) To commence and maintain an action or actions in any court of
competent jurisdiction to foreclose this Deed of Trust as a mortgage or to
obtain specific enforcement of the covenants of Trustor under this Deed of
Trust, and Trustor agrees that such covenants shall be specifically enforceable
by injunction or any other appropriate equitable remedy and that for the
purposes of any suit brought under this subsection, Trustor waives the defenses
of laches and any applicable statute of limitations.
(d) To apply to a court of competent jurisdiction for and obtain
appointment of a receiver of the Subject Property as a matter of strict right
and without regard to: (i) the adequacy of the security for the repayment of the
Secured Obligations; (ii) the existence of a declaration that the Secured
Obligations are immediately due and payable; or (iii) the filing of a notice of
default; and Trustor consents to such appointment.
(e) To take and possess all documents, books, records, papers and accounts
of Trustor or the then owner of the Subject Property; to make or modify Leases
of, and other agreements with respect to, the Subject Property upon such terms
and conditions as Beneficiary deems proper, and to make repairs, alterations and
improvements to the Subject Property deemed necessary, in Trustee's or
Beneficiary's judgment, to protect or enhance the security hereof.
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(f) To execute or cause Trustee to execute a written notice of such
Default and of its election to cause the Subject Property to be sold to satisfy
the Secured Obligations. Trustee shall give and record such notice as the law
then requires as a condition precedent to a trustee's sale. When the minimum
period of time required by law after such notice has elapsed, Trustee, without
notice to or demand upon Trustor, except as otherwise required by law, shall
sell the Subject Property at the time and place of sale fixed by it in the
notice of sale, at one or several sales, either as a whole or in separate
parcels and in such manner and order, all as directed by Beneficiary in its sole
discretion, at public auction to the highest bidder for cash, in lawful money of
the United States, payable at the time of sale. Except as required by law,
neither Trustor nor any other person or entity shall have the right to direct
the order in which the Subject Property is sold. Subject to requirements and
limits imposed by law, Trustee may postpone any sale of the Subject Property by
public announcement at such time and place of sale, and from time to time may
postpone such sale by public announcement at the time and place fixed by the
preceding postponement. Trustee shall deliver to the purchaser at such sale a
deed conveying the Subject Property or portion thereof so sold, but without any
covenant or warranty, express or implied. The recitals in said deed of any
matters or facts shall be conclusive proof of the truthfulness thereof. Any
person, including Trustee, Trustor or Beneficiary, may purchase at such sale.
(g) To resort to and realize upon the security hereunder and any other
security now or later held by Beneficiary concurrently or successively and in
one or several consolidated or independent judicial actions or lawfully taken
non-judicial proceedings, or both, and to apply the proceeds received to payment
of the Secured Obligations, all in such order and manner as Beneficiary shall
determine in its sole discretion.
(h) Upon sale of the Subject Property at any judicial or non-judicial
foreclosure, Beneficiary may credit bid (as determined by Beneficiary in its
sole discretion) all or any portion of the Secured Obligations. In determining
such credit bid, Beneficiary may, but is not obligated to, take into account all
or any of the following: (i) appraisals of the Subject Property as such
appraisals may be discounted or adjusted by Beneficiary in its sole underwriting
discretion; (ii) expenses and costs incurred by Beneficiary with respect to the
Subject Property prior to foreclosure; (iii) expenses and costs which
Beneficiary anticipates will be incurred with respect to the Subject Property
after foreclosure, but prior to resale, including without limitation, costs of
structural reports and other due diligence, costs to carry the Subject Property
prior to resale, costs of resale (e.g., commissions, attorneys' fees, and
taxes), Hazardous Materials clean-up and monitoring, deferred maintenance,
repair, refurbishment and retrofit, and costs of defending or settling
litigation affecting the Subject Property; (iv) declining trends in real
property values generally and with respect to properties similar to the Subject
Property; (v) anticipated discounts upon resale of the Subject Property as a
distressed or foreclosed property; (vi) the existence of additional collateral,
if any, for the Secured Obligations; and (vii) such other factors or matters
that Beneficiary deems appropriate. Trustor acknowledges and agrees that (A)
Beneficiary is not required to use any or all of the foregoing factors to
determine the amount of its credit bid; (B) this Section does not impose upon
Beneficiary any additional obligations that are not imposed by law at the time
the credit bid is made; (C) the amount of Beneficiary's credit bid need not have
any relation to any loan-to-value ratios specified in any agreement between
Trustor and Beneficiary or previously discussed by Trustor and Beneficiary; and
(D) Beneficiary's credit bid may be, at Beneficiary's sole discretion, higher or
lower than any appraised value of the Subject Property.
5.03 Application of Foreclosure Sale Proceeds. After deducting all costs,
fees and expenses of Trustee, and of this trust, including costs of evidence of
title and attorneys' fees in connection with a sale, all proceeds of any
foreclosure sale shall be applied first, to payment of all Secured Obligations
(including without limitation, all sums expended by Beneficiary under the
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terms hereof and not then repaid, with accrued interest at the highest rate per
annum payable under any Secured Obligation), in such order and amounts as
Beneficiary in its sole discretion shall determine; and the remainder, if any,
to the person or persons legally entitled thereto.
5.04 Application of Other Sums. All Rents or other sums received by
Beneficiary hereunder, less all costs and expenses incurred by Beneficiary or
any receiver, including reasonable attorneys' fees, shall be applied to payment
of the Secured Obligations in such order as Beneficiary shall determine in its
sole discretion; provided however, that Beneficiary shall have no liability for
funds not actually received by Beneficiary.
5.05 No Cure or Waiver. Neither Beneficiary's, Trustee's or any receiver's
entry upon and taking possession of the Subject Property, nor any collection of
Rents, insurance proceeds, condemnation proceeds or damages, other security or
proceeds of other security, or other sums, nor the application of any collected
sum to any Secured Obligation, nor the exercise of any other right or remedy by
Beneficiary, Trustee or any receiver shall impair the status of the security of
this Deed of Trust, or cure or waive any breach, Default or notice of default
under this Deed of Trust, or nullify the effect of any notice of default or sale
(unless all Secured Obligations and any other sums then due hereunder have been
paid in full and Trustor has cured all other Defaults), or prejudice Beneficiary
or Trustee in the exercise of any right or remedy, or be construed as an
affirmation by Beneficiary of any tenancy, lease or option of the Subject
Property or a subordination of the lien of this Deed of Trust.
5.06 Costs, Expenses and Attorneys' Fees. Trustor agrees to pay to
Beneficiary immediately upon demand the full amount of all payments, advances,
charges, costs and expenses, including court costs and reasonable attorneys'
fees (to include outside counsel fees and all allocated costs of Beneficiary's
in-house counsel), expended or incurred by Trustee or Beneficiary pursuant to
this Article V, whether incurred at the trial or appellate level, in an
arbitration proceeding or otherwise, and including any of the foregoing incurred
in connection with any bankruptcy proceeding (including without limitation, any
adversary proceeding, contested matter or motion brought by Beneficiary or any
other person) relating to Trustor or in any way affecting any of the Subject
Property or Beneficiary's ability to exercise any of its rights or remedies with
respect thereto. All of the foregoing shall be paid by Trustor with interest
from the date of demand until paid in full at the highest rate per annum payable
under any Secured Obligation.
5.07 Power to File Notices and Cure Defaults. Trustor hereby irrevocably
appoints. Beneficiary and Its successors and assigns as Trustor's true
attorney-in-fact to perform any of the following powers, which agency is coupled
with an interest: (a) to execute and/or record any notices of completion,
cessation of labor, or any other notices that Beneficiary deems appropriate to
protect Beneficiary's interest; and (b) upon the occurrence of any event, act or
omission which with the giving of notice or the passage of time, or both, would
constitute a Default, to perform any obligation of Trustor hereunder, provided
however, that Beneficiary, as such attorney-in-fact, shall only be accountable
for such funds as are actually received by Beneficiary, and Beneficiary shall
not be liable to Trustor or any other person or entity for any failure to act
under this Section.
5.08 Remedies Cumulative: No Waiver. All rights, powers and remedies of
Beneficiary and Trustee hereunder are cumulative and are in addition to all
rights, powers and remedies provided by law or in any other agreements between
Trustor and Beneficiary. No delay, failure or discontinuance of Beneficiary in
exercising any right, power or remedy hereunder shall affect or operate as a
waiver of such right, power or remedy; nor shall any single or partial exercise
of any such right, power or remedy preclude, waive or otherwise affect any other
or further exercise thereof or the exercise of any other right, power or remedy.
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ARTICLE VI. MISCELLANEOUS PROVISIONS
6.01 No Merger. No merger shall occur as a result of Beneficiary's
acquiring any other estate in, or any other lien on, the Subject Property unless
Beneficiary specifically consents to a merger in writing.
6.02 Execution of Documents. Trustor agrees, upon demand by Beneficiary or
Trustee, to execute any and all documents and instruments required to effectuate
the provisions hereof.
6.03 Right of Inspection. Beneficiary or its agents or employees may enter
onto the Subject Property at any reasonable time for the purpose of inspecting
the Subject Property and ascertaining Trustor's compliance with the terms
hereof.
6.04 Notices. Requests for Notice. All notices, requests and demands which
Trustor or Beneficiary is required or may desire to give to the other party must
be in writing, delivered to Beneficiary at the following address:
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager
and to Trustor at its address set forth at the signature lines below, or at such
other address as either party shall designate by written notice to the other
party in accordance with the provisions hereof. Any Trustor whose address is set
forth below hereby requests that a copy of any notice of default and notice of
sale be mailed to such Trustor at that address. Failure to insert an address
shall constitute a designation of Trustor's last known address as the address
for any such notice. Trustee's address is American Securities Company, a
corporation, c/o Specialize Service, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇.
6.05 Successors; Assignment. This Deed of Trust shall be binding upon and
inure to the benefit of the heirs, executors, administrators, legal
representatives, successors and assigns of the parties hereto; provided
however, that this Section does not waive the provisions of Section 4.14 hereof.
Beneficiary reserves the right to sell, assign, transfer, negotiate or grant
participations in all or any part of, or any interest in, Beneficiary's rights
and benefits under the Note, any and all other Secured Obligations and this Deed
of Trust. In connection therewith, Beneficiary may disclose all documents and
information which Beneficiary now has or hereafter acquires relating to the
Subject Property, all or any of the Secured Obligations and/or Trustor and, as
applicable, any partners, joint venturers or members of Trustor, whether
furnished by any Trustor or otherwise.
6.06 Rules of Construction. (a) When appropriate based on the identity of
the parties or other circumstances, the masculine gender includes the feminine
or neuter or both, and the singular number includes the plural; (b) the term
"Subject Property" means all and any part of or interest In the Subject
Property; (c) all Section headings herein are for convenience of reference only,
are not a part of this Deed of Trust, and shall be disregarded in the
interpretation of any portion of this Deed of Trust; (d) if more than one person
or entity has executed this Deed of Trust as "Trustor", the obligations of all
such Trustors hereunder shall be joint and several; and (e) all terms of Exhibit
A, and each other exhibit and/or rider attached hereto and recorded herewith,
are hereby incorporated into this Deed of Trust by this reference.
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6.07 Severability of Provisions. If any provision of this Deed of Trust
shall be held to be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity without invalidating the remainder of such provision or any remaining
provisions of this Deed of Trust.
6.08 Recourse to Separate Property. Any married person who executes this
Deed of Trust as a Trustor and who is obligated under any Secured Obligation
agrees that any money judgment which Beneficiary or Trustee obtains pursuant to
the terms of this Deed of Trust or any other obligation of that married person
secured by this Deed of Trust may be collected by execution upon that person's
separate property, and any community property of which that person is a manager.
6.09 Statement of Obligation. Upon demand by Beneficiary, Trustor shall
pay Beneficiary a fee not to exceed $60.00 or such other maximum as may be
imposed by law for furnishing any Statement of Obligation as provided by Section
2943 of the California Civil Code.
6.10 Governing Law. This Deed of Trust shall be governed by and construed
in accordance with the laws of the State of California.
6.11 Arbitration.
(a) Arbitration. Upon the demand of any party, any Dispute shall be
resolved by binding arbitration in accordance with the terms hereof. A "Dispute"
shall mean any action, dispute, claim or controversy of any kind, whether in
contract or tort, statutory or common law, legal or equitable, now existing or
hereafter arising under or in connection with, or in any way pertaining to, this
Deed of Trust and each other document, contract and instrument required hereby
or now or hereafter delivered to Beneficiary in connection herewith
(collectively, the "Documents"), or any past, present or future extensions of
credit and other activities, transactions or obligations of any kind related
directly or indirectly to any of the Documents, including without limitation,
any of the foregoing arising in connection with the exercise of any self-help,
ancillary or other remedies pursuant to any of the Documents. Any party may by
summary proceedings bring an action in court to compel arbitration of a Dispute.
Any party who fails or refuses to submit to arbitration following a lawful
demand by any other party shall bear all costs and expenses incurred by such
other party in compelling arbitration of any Dispute.
(b) Governing Rules. Arbitration proceedings shall be administered by the
American Arbitration Association ("AAA") or such other administrator as the
parties shall mutually agree upon in accordance with the AAA Commercial
Arbitration Rules. All Disputes submitted to arbitration shall be resolved in
accordance with the Federal Arbitration Act (Title 9 of the United States Code),
notwithstanding any conflicting choice of law provision in any of the Documents.
The arbitration shall be conducted at a location in California selected by the
AAA or other administrator. If there is any inconsistency between the terms
hereof and any such rules, the terms and procedures set forth herein shall
control. All statutes of limitation applicable to any Dispute shall apply to any
arbitration proceeding. All discovery activities shall be expressly limited to
matters directly relevant to the Dispute being arbitrated. Judgment upon any
award rendered in an arbitration may be entered in any court having
jurisdiction; provided however, that nothing contained herein shall be deemed to
be a waiver by any party that is a bank of the protections afforded to it under
12 U.S.C. (S).91 or any similar applicable state law.
(c) No Waiver; Provisional Remedies, Self-Help and Foreclosure. No
provision hereof shall limit the right of any party to exercise self-help
remedies such as setoff, foreclosure against or sale of any real or personal
property collateral or security, or to obtain provisional or ancillary remedies,
including without limitation injunctive relief, sequestration, attachment,
garnishment or
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the appointment of a receiver, from a court of competent jurisdiction before,
after or during the pendency of any arbitration or other proceeding. The
exercise of any such remedy shall not waive the right of any party to compel
arbitration or reference hereunder.
(d) Arbitrator Qualifications and Powers; Awards. Arbitrators must be
active members of the California State Bar or retired judges of the state or
federal judiciary of California, with expertise in the substantive law
applicable to the subject matter of the Dispute. Arbitrators are empowered to
resolve Disputes by summary rulings in response to motions filed prior to the
final arbitration hearing. Arbitrators: (i) shall resolve all Disputes in
accordance with the substantive law of the state of California; (ii) may grant
any remedy or relief that a court of the state of California could order or
grant within the scope hereof and such ancillary relief as is necessary to make
effective any award; and (iii) shall have the power to award recovery of all
costs and fees, to impose sanctions and to take such other actions as they deem
necessary to the same extent a judge could pursuant to the Federal Rules of
Civil Procedure, the California Rules of Civil Procedure or other applicable
law. Any Dispute in which the amount in controversy is $5,000,000 or less shall
be decided by a single arbitrator who shall not render an award of greater than
$5,000,000 (including damages, costs, fees and expenses). By submission to a
single arbitrator, each party expressly waives any right or claim to recover
more than $5,000,000. Any Dispute in which the amount in controversy exceeds
$5,000,000 shall be decided by majority vote of a panel of three arbitrators;
provided however, that all three arbitrators must actively participate in all
hearings and deliberations.
(e) Judicial Reference. Notwithstanding anything herein to the contrary,
no Dispute shall be submitted to arbitration unless: (i) Beneficiary
specifically elects in writing to proceed with the arbitration; or (ii) all
parties to the arbitration waive any rights or benefits that might accrue to
them by virtue of the single action rule statute of California, thereby agreeing
that all Secured Obligations, and all mortgages, liens and security interests
securing any of the Secured Obligations, shall remain fully valid and
enforceable. If any such Dispute is not submitted to arbitration, the Dispute
shall be referred to a referee in accordance with California Code of Civil
Procedure Section 638 et seq., and this general reference agreement is intended
to be specifically enforceable in accordance with said Section 638. A referee
with the qualifications required herein for arbitrators shall be selected
pursuant to the AAA's selection procedures. Judgment upon the decision rendered
by a referee shall be entered in the court in which such proceeding was
commenced in accordance with California Code of Civil Procedure Sections 644 and
645.
(f) Miscellaneous. To the maximum extent practicable, the AAA, the
arbitrators and the parties shall take all action required to conclude any
arbitration proceeding within 180 days of the filing of the Dispute with the
AAA. No arbitrator or other party to an arbitration proceeding may disclose the
existence, content or results thereof, except for disclosures of information by
a party required in the ordinary course of its business, by applicable law or
regulation, or to the extent necessary to exercise any judicial review rights
set forth herein. If more than one agreement for arbitration by or between the
parties potentially applies to a Dispute, the arbitration provision most
directly related to the Documents or the subject matter of the Dispute shall
control. This arbitration provision shall survive termination, amendment or
expiration of any of the Documents or any relationship between the parties.
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇ has executed this Deed of Trust as of the date
first set forth above.
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TRUSTOR PLEASE NOTE: IN THE EVENT OF YOUR DEFAULT, CALIFORNIA
PROCEDURE PERMITS THE TRUSTEE TO SELL THE SUBJECT PROPERTY AT A SALE HELD
WITHOUT SUPERVISION BY ANY COURT AFTER EXPIRATION OF A PERIOD PRESCRIBED BY LAW
(SEE SECTION 5.02(f) ABOVE). UNLESS YOU PROVIDE AN ADDRESS FOR THE GIVING OF
NOTICE, YOU MAY NOT BE ENTITLED TO OTHER NOTICE OF THE COMMENCEMENT OF SALE
PROCEEDINGS. BY EXECUTION OF THIS DEED OF TRUST, YOU CONSENT TO SUCH PROCEDURE.
IF YOU HAVE ANY QUESTIONS CONCERNING IT, YOU SHOULD CONSULT YOUR LEGAL ADVISOR.
BENEFICIARY URGES YOU TO GIVE PROMPT NOTICE OF ANY CHANGE IN YOUR ADDRESS SO
THAT YOU MAY RECEIVE PROMPTLY ANY NOTICE GIVEN PURSUANT TO THIS DEED OF TRUST.
Trustor(s) Address(es)
INFONET SERVICES CORPORATION, Infonet Services Corporation
a Delaware corporation ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇.
P.O. Box 1022
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, CA 9O245-1022
----------------------
Title: Secretary, General Counsel
--------------------------
OBTAIN NOTARY ACKNOWLEDGMENTS
-18-
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
--------------------------------------------------------------------------------
State of California
----------
County of Los Angeles
-----------
On Tues. March 21, 2000 before me, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Notary Public,
---------------------------------
Name and Title of Officer (e.g., "▇▇▇▇ ▇▇▇,
Notary Public")
personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. VP & General Counsel
-------------------------------------------
Name(s) of Signer(s)
[SEAL]
|X| personally known to me
|_| proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ #1155452
------------------------------
Signature of Notary Public
-----------------------------------OPTIONAL-----------------------------------
Though the information below is not required by law, it may prove valuable to
persons relying on the document and could prevent fraudulent removal and
reattachment of this form to another document.
Description of Attached Document
▇▇▇▇▇ Fargo Bank, Nat'l Association Addedum to
Title or Type of Document: Term Note, Promissory Note, Deed of Trust
----------------------------------------------
Document Date: Tuesday, 21 March 2000 Number of Pages: 27
---------------------- --
Signer(s) Other Than Named Above: _____________________________________________
Capacity(ies) Claimed by ▇▇▇▇▇▇(s)
Signer's Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
-----------------------
|_| Individual
|X| Corporate Officer
Title(s): SR. VP & General Counsel
------------------------
|_| Partner -- |_| Limited |_| General
|_| Attorney-in-Fact
|_| Trustee
|_| Guardian or Conservator
|_| Other: ________________
_______________________
Signer is Representing:
___________________________
___________________________
-----------------
RIGHT THUMBPRINT
OF SIGNER
-----------------
Top of thumb here
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Signer's Name: _______________________
|_| Individual
|X| Corporate Officer
Title(s): ________________________
|_| Partner -- |_| Limited |_| General
|_| Attorney-in-Fact
|_| Trustee
|_| Guardian or Conservator
|_| Other: ________________
_______________________
Signer is Representing:
___________________________
___________________________
-----------------
RIGHT THUMBPRINT
OF SIGNER
-----------------
Top of thumb here
-----------------
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EXHIBIT A
(Description of Property)
Exhibit A to Deed of Trust and Assignment of Rents and Leases executed by
INFONET SERVICES CORPORATION, a Delaware corporation, as Trustor, to AMERICAN
SECURITIES COMPANY, as Trustee, for the benefit of ▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, as Beneficiary, dated as of March 21, 2000.
Description of Property
3. The land referred to in this report is situated in the State of
California, County of LOS ANGELES and is described as follows:
LOTS 5, 6 and 7 OF TRACT NO. 52427, IN THE CITY OF EL SEGUNDO, COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 1229 PAGES 42 TO 44
INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
SAID LAND IS ALSO DESCRIBED IN THAT CERTAIN CERTIFICATE OF COMPLIANCE, RECORDED
NOVEMBER 13, 1998 AS INSTRUMENT NO. ▇▇-▇▇▇▇▇▇▇.
EXCEPTING AND RESERVING ALL RIGHTS WITH REGARD TO OIL, GAS, PETROLEUM AND OTHER
HYDROCARBON SUBSTANCES WITHIN, UNDERLYING OR PRODUCED FROM THE REAL PROPERTY AND
ADJOINING STREETS, ROADS AND HIGHWAYS AND THE USE AND ENJOYMENT THEREOF,
WITHOUT, HOWEVER, ANY RIGHTS TO SURFACE ENTRY OTHER THAN THOSE SET FORTH IN
CLAUSES (B) AND (C) OF THE DEED HEREIN AFTER REFERENCED, AS EXCEPTED AND
RESERVED BY CHEVRON U.S.A. INC., A PENNSYLVANIA CORPORATION, IN DEED RECORDED
MAY 9, 1996 AS INSTRUMENT NO. 96-732208.