MAGUIRE PROPERTIES - SAN DIEGO TECH CENTER, LLC, as Borrower (Borrower) to STEWART TITLE OF CALIFORNIA, INC., as Trustee (Trustee) for the benefit of COLUMN FINANCIAL, INC., as Lender (Lender) DEED OF TRUST AND SECURITY AGREEMENT
Recording
Requested By And
When
Recorded Mail To:
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
New York,
New York 10019
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇
PROPERTIES - SAN DIEGO TECH CENTER, LLC, as Borrower
(Borrower)
to
▇▇▇▇▇▇▇
TITLE OF CALIFORNIA, INC., as Trustee
(Trustee)
for
the benefit of
COLUMN
FINANCIAL, INC., as Lender
(Lender)
________________________________________________________
________________________________________________________
Dated: As
of April 6, 2005
Location: 9605,
9645, 9685, 9725, 9805, 9855, 9675 and
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, and
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
County: San
Diego
THIS
DEED
OF TRUST AND SECURITY AGREEMENT (this
“Security Instrument”) is made as of this 6th day of April, 2005, by
▇▇▇▇▇▇▇
PROPERTIES - SAN DIEGO TECH CENTER, LLC, a
Delaware limited liability company, having an address at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as grantor (“Borrower”) to ▇▇▇▇▇▇▇
TITLE OF CALIFORNIA, INC., the
trustee hereunder, having its mailing address at ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (“Trustee”) for the benefit of COLUMN
FINANCIAL, INC., a
Delaware corporation, having an address at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, as beneficiary (“Lender”).
W I T N E
S S E T H:
WHEREAS,
this Security Instrument is given to secure a loan (the “Loan”) in the principal
sum of One Hundred Thirty-Three Million And No/100 Dollars ($133,000,000.00)
advanced pursuant to that certain Loan Agreement, dated as of the date hereof,
between Borrower and Lender (as the same may be amended, restated, replaced,
supplemented, renewed, extended or otherwise modified from time to time, the
“Loan Agreement”) and evidenced by that certain Promissory Note, dated the date
hereof, made by Borrower in favor of ▇▇▇▇▇▇ (as the same may be amended,
consolidated, severed, restated, replaced, supplemented, renewed, extended or
otherwise modified from time to time, the “Note”);
WHEREAS,
Borrower desires to secure the payment of the Debt and the performance of all of
its obligations under the Note, the Loan Agreement and the other Loan Documents
(as herein defined); and
WHEREAS,
this Security Instrument is given pursuant to the Loan Agreement, and payment,
fulfillment, and performance by Borrower of its obligations thereunder and under
the other Loan Documents are secured hereby, and each and every term and
provision of the Loan Agreement, the Note, and that certain Assignment of Leases
and Rents of even date herewith made by Borrower in favor of Lender delivered in
connection with this Security Instrument (as the same may be amended, restated,
replaced, supplemented, renewed, extended or otherwise modified from time to
time, the “Assignment of Leases”), including the rights, remedies, obligations,
covenants, conditions, agreements, indemnities, representations and warranties
of the parties therein, are hereby incorporated by reference herein as though
set forth in full and shall be considered a part of this Security Instrument
(the Loan Agreement, the Note, this Security Instrument, the Assignment of
Leases and Rents and all other documents evidencing or securing the Debt or
executed or delivered in connection therewith, are hereinafter referred to
collectively as the “Loan Documents”).
NOW
THEREFORE, in consideration of the making of the Loan by ▇▇▇▇▇▇ and the
covenants, agreements, representations and warranties set forth in this Security
Instrument:
1
ARTICLE
1
GRANTS OF
SECURITY
SECTION
1.1 Property
Mortgaged.
▇▇▇▇▇▇▇▇ does hereby grant a security interest in and irrevocably mortgage,
grant, bargain, sell, pledge, assign, warrant, transfer, convey and set over to
Trustee IN TRUST, WITH POWER OF SALE for the benefit and security of Lender and
its successors and assigns the following property, rights, interests and estates
now owned, or hereafter acquired by Borrower (collectively, the
“Property”):
(a) Land. The
real property known as the San Diego Tech Center, located at 9605, 9645, 9685,
9725, 9805, 9855, 9675 and ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as is more
particularly described in Exhibit
A attached
hereto and made a part hereof (the “Land”);
(b) Additional
Land. All
additional lands, estates and development rights hereafter acquired by Borrower
for use in connection with the Land and the development of the Land and all
additional lands and estates therein which may, from time to time, by
supplemental mortgage or otherwise, be expressly made subject to the lien of
this Security Instrument;
(c) Improvements. The
buildings, structures, fixtures, additions, enlargements, extensions,
modifications, repairs, replacements and improvements now or hereafter erected
or located on the Land (collectively, the “Improvements”);
(d) Easements. All
easements, rights-of-way or use, rights, strips and gores of land, streets,
ways, alleys, passages, sewer rights, water, water courses, water rights and
powers, air rights and development rights, and all estates, rights, titles,
interests, privileges, liberties, servitudes, tenements, hereditaments and
appurtenances of any nature whatsoever, in any way now or hereafter belonging,
relating or pertaining to the Land and the Improvements and the reversions and
remainders, and all land lying in the bed of any street, road or avenue, opened
or proposed, in front of or adjoining the Land, to the center line thereof and
all the estates, rights, titles, interests, rights of dower, rights of curtesy,
property, possession, claim and demand whatsoever, both at law and in equity, of
Borrower of, in and to the Land and the Improvements and every part and parcel
thereof, with the appurtenances thereto;
(e) Equipment. All
“equipment,” as such term is defined in Article 9 of the Uniform Commercial Code
(hereinafter defined), now owned or hereafter acquired by Borrower, which is
used at or in connection with the Improvements or the Land or is located thereon
or therein (including, but not limited to, all machinery, equipment,
furnishings, and electronic data-processing and other office equipment now owned
or hereafter acquired by Borrower and any and all additions, substitutions and
replacements of any of the foregoing), together with all attachments,
components, parts, equipment and accessories installed thereon or affixed
thereto (collectively, the “Equipment”). Notwithstanding the foregoing,
Equipment shall not include any property belonging to tenants under Leases
(hereinafter defined) except to the extent that Borrower shall have any right or
interest therein;
(f) Fixtures. All
Equipment now owned, or the ownership of which is hereafter acquired, by
Borrower which is so related to the Land and Improvements forming part
2
of the
Property that it is deemed fixtures or real property under the law of the
particular state in which the Equipment is located, including, without
limitation, all building or construction materials intended for construction,
reconstruction, alteration or repair of or installation on the Property,
construction equipment, appliances, machinery, plant equipment, fittings,
apparatuses, fixtures and other items now or hereafter attached to, installed in
or used in connection with (temporarily or permanently) any of the Improvements
or the Land, including, but not limited to, engines, devices for the operation
of pumps, pipes, plumbing, call and sprinkler systems, fire extinguishing
apparatuses and equipment, heating, ventilating, incinerating, electrical, air
conditioning and air cooling equipment and systems, gas and electric machinery,
appurtenances and equipment, pollution control equipment, security systems,
disposals, dishwashers, refrigerators and ranges, recreational equipment and
facilities of all kinds, and water, gas, electrical, storm and sanitary sewer
facilities, utility lines and equipment (whether owned individually or jointly
with others, and, if owned jointly, to the extent of Borrower’s interest
therein) and all other utilities whether or not situated in easements, all water
tanks, water supply, water power sites, fuel stations, fuel tanks, fuel supply,
and all other structures, together with all accessions, appurtenances,
additions, replacements, betterments and substitutions for any of the foregoing
and the proceeds thereof (collectively, the “Fixtures”). Notwithstanding the
foregoing, “Fixtures” shall not include any property which tenants are entitled
to remove pursuant to Leases, except to the extent that Borrower shall have any
right or interest therein;
(g) Personal
Property. All
furniture, furnishings, objects of art, machinery, goods, inventory, tools,
supplies, appliances, general intangibles (including, without limitation,
payment intangibles), contract rights, accounts, accounts receivable,
franchises, licenses, certificates and permits, and all other personal property
of any kind or character whatsoever as defined in and subject to the provisions
of the Uniform Commercial Code, whether tangible or intangible, other than
Fixtures, which are now or hereafter owned by Borrower and which are located
within or about the Land and the Improvements, together with all accessories,
replacements and substitutions thereto or therefor and the proceeds thereof
(collectively, the “Personal Property”), and the right, title and interest of
Borrower in and to any of the Personal Property which may be subject to any
security interests, as defined in the Uniform Commercial Code, as adopted and
enacted by the state or states where any of the Property is located (the
“Uniform Commercial Code”), superior in lien to the lien of this Security
Instrument and all proceeds and products of the above;
(h) Leases
and Rents. All
leases, subleases or subsubleases, lettings, licenses, concessions or other
agreements (whether written or oral and whether now or hereinafter in effect)
pursuant to which any Person is granted a possessory interest in, or right to
use or occupy all or any portion of the Land and the Improvements, and every
modification, amendment or other agreement relating to such leases, subleases,
subsubleases, lettings, licenses, concessions or other agreements entered into
in connection with such leases, subleases, subsubleases, lettings, licenses,
concessions or other agreements and every guarantee of the performance and
observance of the covenants, conditions and agreements to be performed and
observed by the other party thereto, heretofore or hereafter entered into
(collectively, the “Leases”), whether before or after the filing by or against
Borrower of any petition for relief under 11 U.S.C. §101 et seq., as the same
may be amended from time to time (the “Bankruptcy Code”) and all right, title
and interest of ▇▇▇▇▇▇▇▇, its successors and assigns therein and thereunder,
including, without limitation, letter-of-credit rights, cash or securities
deposited thereunder to secure the
3
performance
by the lessees of their obligations thereunder and all rents, additional rents,
revenues, issues and profits (including timber to be cut, all oil and gas or
other mineral royalties and bonuses) from the Land and the Improvements whether
paid or accruing before or after the filing by or against Borrower of any
petition for relief under the Bankruptcy Code (collectively, the “Rents”) and
all proceeds from the sale or other disposition of the Leases and the right to
receive and apply the Rents to the payment of the Debt;
(i) Condemnation
Awards. All
Awards which may heretofore and hereafter be made with respect to the Property,
whether from the exercise of the right of eminent domain (including, but not
limited to, any transfer made in lieu of or in anticipation of the exercise of
the right), or for a change of grade, or for any other injury to or decrease in
the value of the Property;
(j) Insurance
Proceeds. All
Insurance Proceeds in respect of the Property under any Policies covering the
Property, including, without limitation, the right to receive and apply the
proceeds of any Policies, judgments, or settlements made in lieu thereof, in
connection with a Casualty to the Property;
(k) Tax
Certiorari. All
refunds, rebates or credits in connection with reduction in Taxes or Other
Charges charged against the Property;
(l) Conversion. All
proceeds of the conversion, voluntary or involuntary, of any of the foregoing
including, without limitation, Insurance Proceeds and Awards, into cash or
liquidation claims;
(m) Rights. The
right, in the name and on behalf of ▇▇▇▇▇▇▇▇, to appear in and defend any action
or proceeding brought with respect to the Property and to commence any action or
proceeding to protect the interest of ▇▇▇▇▇▇ in the Property;
(n) Agreements. All
agreements, contracts, certificates, instruments, franchises, permits, licenses,
plans, specifications and other documents, now or hereafter entered into, and
all rights therein and thereto, respecting or pertaining to the use, occupation,
construction, management or operation of the Land and any part thereof and any
Improvements or any business or activity conducted on the Land and any part
thereof and all right, title and interest of Borrower therein and thereunder,
including, without limitation, the right, upon the happening of any default
hereunder, to receive and collect any sums payable to Borrower
thereunder;
(o) Trademarks. All
tradenames, trademarks, servicemarks, logos, copyrights, goodwill, books and
records and all other general intangibles relating to or used in connection with
the operation of the Property;
(p) Accounts. All
reserves, escrows and deposit accounts maintained by Borrower with respect to
the Property, including, without limitation, all accounts established or
maintained pursuant to (i) the Cash Management Agreement and (ii) the Lockbox
Bank Instruction Letter from Borrower and Lender to Lockbox Bank, as agreed to
and acknowledged by Lockbox Bank; together with all deposits or wire transfers
made to such accounts and all cash, checks, drafts, certificates, securities,
investment property, financial assets, instruments and
4
other
property held therein from time to time and all proceeds, products,
distributions or dividends or substitutions thereon and thereof;
(q) Other
Rights. Any and
all other rights of Borrower in and to the items set forth in Subsections (a)
through (p) above.
AND
without limiting any of the other provisions of this Security Instrument, to the
extent permitted by applicable law, Borrower expressly grants to Lender, as
secured party, a security interest in the portion of the Property which is or
may be subject to the provisions of the Uniform Commercial Code which are
applicable to secured transactions; it being understood and agreed that the
Improvements and Fixtures are part and parcel of the Land (the Land, the
Improvements and the Fixtures collectively referred to as the “Real Property”)
appropriated to the use thereof and, whether affixed or annexed to the Real
Property or not, shall for the purposes of this Security Instrument be deemed
conclusively to be real estate and mortgaged hereby.
SECTION
1.2 Assignment
of Rents.
Borrower hereby absolutely and unconditionally assigns to Lender all of
▇▇▇▇▇▇▇▇’s right, title and interest in and to all current and future Leases and
Rents; it being intended by Borrower that this assignment constitutes a present,
absolute assignment and not an assignment for additional security only.
Nevertheless, subject to the terms of the Assignment of Leases, the Cash
Management Agreement and Section 7.1(h) of this Security Instrument, Lender
grants to Borrower a revocable license to collect, receive, use and enjoy the
Rents and Borrower shall hold the Rents, or a portion thereof sufficient to
discharge all current sums due on the Debt, for use in the payment of such
sums.
SECTION
1.3 Security
Agreement. This
Security Instrument is both a real property mortgage or deed of trust and a
“security agreement” within the meaning of the Uniform Commercial Code. The
Property includes both real and personal property and all other rights and
interests, whether tangible or intangible in nature, of Borrower in the
Property. By executing and delivering this Security Instrument, Borrower hereby
grants to Lender and Trustee, as security for the Obligations (hereinafter
defined), a security interest in the Fixtures, the Equipment and the Personal
Property to the full extent that the Fixtures, the Equipment and the Personal
Property may be subject to the Uniform Commercial Code (said portion of the
Property so subject to the Uniform Commercial Code being called the
“Collateral”). If an Event of Default shall occur and be continuing, Lender or
Trustee, in addition to any other rights and remedies which it may have, shall
have and may exercise immediately and without demand, any and all rights and
remedies granted to a secured party upon default under the Uniform Commercial
Code, including, without limiting the generality of the foregoing, the right to
take possession of the Collateral or any part thereof, and to take such other
measures as Lender may deem necessary for the care, protection and preservation
of the Collateral. Upon request or demand of Lender or Trustee after the
occurrence and during the continuance of an Event of Default, Borrower shall, at
its expense, assemble the Collateral and make it available to Lender or Trustee
at a convenient place (at the Land if tangible property) reasonably acceptable
to Lender. Borrower shall pay to Lender on demand any and all expenses,
including reasonable legal expenses and attorneys’ fees, incurred or paid by
Lender or Trustee in protecting its interest in the Collateral and in enforcing
its rights hereunder with respect to the Collateral after the occurrence and
during the continuance of an Event of Default. Any notice of sale, disposition
or
5
other
intended action by ▇▇▇▇▇▇ with respect to the Collateral sent to Borrower in
accordance with the provisions hereof at least ten (10) Business Days prior to
such action, shall, except as otherwise provided by applicable law, constitute
reasonable notice to Borrower. The proceeds of any disposition of the
Collateral, or any part thereof, may, except as otherwise required by applicable
law, be applied by Lender to the payment of the Debt in such priority and
proportions as Lender in its discretion shall deem proper. Borrower’s (debtor’s)
principal place of business is as set forth on page one hereof and the address
of Lender (secured party) is as set forth on page one hereof.
SECTION
1.4 Fixture
Filing. Certain
of the Property is or will become “fixtures” (as that term is defined in the
Uniform Commercial Code) on the Land, and this Security Instrument, upon being
filed for record in the real estate records of the city or county wherein such
fixtures are situated, shall operate also as a financing statement filed as a
fixture filing in accordance with the applicable provisions of said Uniform
Commercial Code upon such of the Property that is or may become
fixtures.
SECTION
1.5 Pledges
of Monies Held.
Borrower hereby pledges to Lender any and all monies now or hereafter held by
Lender or on behalf of Lender, including, without limitation, any sums deposited
in the Lockbox Account, the Cash Management Account, the Reserve Funds and Net
Proceeds, as additional security for the Obligations until expended or applied
as provided in this Security Instrument.
CONDITIONS
TO GRANT
TO HAVE
AND TO HOLD the above granted and described Property and TO WARRANT AND DEFEND
the title to the Property unto the Trustee and to his or her successors and
assigns for the benefit of ▇▇▇▇▇▇ and its successors and assigns,
forever;
IN TRUST
WITH POWER OF SALE, to secure the payment to Lender of the Debt at the time and
in the manner provided for in the Note, the Loan Agreement and in this Security
Instrument;
PROVIDED,
HOWEVER, these presents are upon the express condition that, if Borrower shall
well and truly pay to Lender the Debt at the time and in the manner provided in
the Note, the Loan Agreement and this Security Instrument, shall well and truly
perform the Other Obligations (hereafter defined) as set forth in this Security
Instrument and shall well and truly abide by and comply with each and every
covenant and condition set forth herein and in the Note, the Loan Agreement and
the other Loan Documents, these presents and the estate hereby granted shall
cease, terminate and be void; provided, however, that ▇▇▇▇▇▇▇▇’s obligation to
indemnify and hold harmless Lender and Trustee pursuant to the provisions hereof
shall survive any such payment or release.
ARTICLE
2
DEBT AND
OBLIGATIONS SECURED
SECTION
2.1 Debt. This
Security Instrument and the grants, assignments and transfers made in Article 1
are given for the purpose of securing the Debt.
6
SECTION
2.2 Other
Obligations. This
Security Instrument and the grants, assignments and transfers made in Article 1
are also given for the purpose of securing the following (collectively, the
“Other Obligations”):
(a) the
performance of all other obligations of Borrower contained herein;
(b) the
performance of each obligation of Borrower contained in the Loan Agreement and
any other Loan Document; and
(c) the
performance of each obligation of Borrower contained in any renewal, extension,
amendment, modification, consolidation, change of, or substitution or
replacement for, all or any part of the Note, the Loan Agreement or any other
Loan Document.
SECTION
2.3 Debt
and Other Obligations.
Borrower’s obligations for the payment of the Debt and the performance of the
Other Obligations shall be referred to collectively herein as the
“Obligations.”
ARTICLE
3
BORROWER
COVENANTS
Borrower
covenants and agrees that:
SECTION
3.1 Payment
of Debt.
▇▇▇▇▇▇▇▇ will pay the Debt at the time and in the manner provided in the Loan
Agreement, the Note and this Security Instrument.
SECTION
3.2 Incorporation
by Reference. All the
covenants, conditions and agreements contained in (a) the Loan Agreement, (b)
the Note and (c) all and any of the other Loan Documents, are hereby made a part
of this Security Instrument to the same extent and with the same force as if
fully set forth herein.
SECTION
3.3 Insurance.
Borrower shall obtain and maintain, or cause to be maintained, in full force and
effect at all times insurance with respect to Borrower and the Property as
required pursuant to the Loan Agreement.
SECTION
3.4 Maintenance
of Property.
Borrower shall cause the Property to be maintained in a good and safe condition
and repair. The Improvements, the Fixtures, the Equipment and the Personal
Property shall not be removed, demolished or materially altered (except for
normal replacement of the Fixtures, the Equipment, the Personal Property, or
tenant finish and refurbishment of the Improvements) without the consent of
Lender or as otherwise permitted pursuant to the Loan Agreement. Borrower shall
promptly repair, replace or rebuild any part of the Property which may be
destroyed by any Casualty or become damaged, worn or dilapidated or which may be
affected by any Condemnation, and shall complete and pay for any structure at
any time in the process of construction or repair on the Land.
SECTION
3.5 Waste.
Borrower shall not commit or suffer any waste of the Property or make any change
in the use of the Property which will in any way materially increase the risk of
fire or other hazard arising out of the operation of the Property, or take any
action that might invalidate or allow the cancellation of any Policy, or do or
permit to be done thereon anything
7
that may
in any way materially impair the value of the Property or the security of this
Security Instrument. Borrower will not, without the prior written consent of
Lender, permit any drilling or exploration for or extraction, removal, or
production of any minerals from the surface or the subsurface of the Land,
regardless of the depth thereof or the method of mining or extraction
thereof.
SECTION
3.6 Payment
for Labor and Materials. (a)
Subject to Section 3.6(b) hereof, Borrower will promptly pay when due all bills
and costs for labor, materials, and specifically fabricated materials (“Labor
and Material Costs”) incurred in connection with the Property and never permit
to exist beyond the due date thereof in respect of the Property or any part
thereof any Lien or security interest, even though inferior to the Liens and the
security interests hereof, and in any event never permit to be created or exist
in respect of the Property or any part thereof any other or additional Lien or
security interest other than the Liens or security interests hereof except for
the Permitted Encumbrances.
(b) After
prior written notice to Lender, Borrower, at its own expense, may contest by
appropriate legal proceeding, promptly initiated and conducted in good faith and
with due diligence, the amount or validity or application in whole or in part of
any of the Labor and Material Costs, provided that (i) no Event of Default has
occurred and is continuing under the Loan Agreement, the Note, this Security
Instrument or any of the other Loan Documents, (ii) Borrower is permitted to do
so under the provisions of any other mortgage, deed of trust or deed to secure
debt affecting the Property, (iii) such proceeding shall suspend the collection
of the Labor and Material Costs from Borrower and from the Property or Borrower
shall have paid all of the Labor and Material Costs under protest, (iv) such
proceeding shall be permitted under and be conducted in accordance with the
provisions of any other instrument to which Borrower is subject and shall not
constitute a default thereunder, (v) neither the Property nor any part thereof
or interest therein will be in danger of being sold, forfeited, terminated,
canceled or lost, and (vi) Borrower shall have furnished the security as may be
required in the proceeding, or as may be reasonably requested by ▇▇▇▇▇▇, to
insure the payment of any contested Labor and Material Costs, together with all
interest and penalties thereon.
SECTION
3.7 Performance
of Other Agreements.
Borrower shall observe and perform each and every term, covenant and provision
to be observed or performed by Borrower pursuant to the Loan Agreement, any
other Loan Document and any other agreement or recorded instrument affecting or
pertaining to the Property and any amendments, modifications or changes
thereto.
SECTION
3.8 Change
of Name, Identity or Structure. Except
for the assignment of all of the membership interests in Borrower from National
Safe Harbor Exchanges, a California corporation, to ▇▇▇▇▇▇▇ Properties, L.P., a
Maryland limited partnership, which is expressly permitted under the Loan
Agreement and the organization documents of each of the foregoing entities,
Borrower shall not change Borrower’s name, identity (including its trade name or
names), corporate, partnership or other structure, jurisdiction of formation or
organization or Borrower’s organizational identification number without
notifying Lender of such change in writing at least thirty (30) days prior to
the effective date of such change and, in the case of a change in Borrower’s
structure or Borrower’s jurisdiction of formation or organization, without first
obtaining the prior written consent of Lender, except as otherwise permitted
pursuant to
8
Section
5.2.10 of the Loan Agreement. Borrower shall authorize and deliver to Lender,
prior to or contemporaneously with the effective date of any such change, any
financing statement or financing statement change required by ▇▇▇▇▇▇ to
establish or maintain the validity, perfection and priority of the security
interest granted herein. At the request of ▇▇▇▇▇▇, Borrower shall execute a
certificate in form satisfactory to Lender listing the trade names under which
Borrower intends to operate the Property, and representing and warranting that
Borrower does business under no other trade name with respect to the
Property.
SECTION
3.9 Title.
Borrower has good, marketable and insurable fee simple title to the real
property comprising part of the Property and good title to the balance of such
Property, free and clear of all Liens whatsoever except the Permitted
Encumbrances, such other Liens as are permitted pursuant to the Loan Documents
and the Liens created by the Loan Documents. The Permitted Encumbrances in the
aggregate do not materially and adversely affect the value, operation or use of
the Property or Borrower’s ability to repay the Loan. This Security Instrument,
when properly recorded in the appropriate records, together with any Uniform
Commercial Code financing statements required to be filed in connection
therewith, will create (a) a valid, perfected first priority Lien on the
Property, subject only to Permitted Encumbrances and the Liens created by the
Loan Documents and (b) perfected security interests in and to, and perfected
collateral assignments of, all personalty owned by Borrower (including the
Leases), all in accordance with the terms thereof, in each case subject only to
any applicable Permitted Encumbrances, such other Liens as are permitted
pursuant to the Loan Documents and the Liens created by the Loan Documents.
There are no claims for payment for work, labor or materials affecting the
Property which are past due and are or may be reasonably expected to become a
Lien prior to, or of equal priority with, the Liens created by the Loan
Documents unless such claims for payments are being contested in accordance with
the terms and conditions of this Security Instrument.
ARTICLE
4
OBLIGATIONS
AND RELIANCES
SECTION
4.1 Relationship
of Borrower and Lender. The
relationship between ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ is solely that of debtor and creditor,
and ▇▇▇▇▇▇ has no fiduciary or other special relationship with Borrower, and no
term or condition of the Loan Agreement, the Note, this Security Instrument and
the other Loan Documents shall be construed so as to deem the relationship
between Borrower and Lender to be other than that of debtor and
creditor.
SECTION
4.2 No
Reliance on Lender. The
general partners, managers, members, principals and (if Borrower is a trust)
beneficial owners of Borrower are experienced in the ownership and operation of
properties similar to the Property, and Borrower and Lender are relying solely
upon such expertise and business plan in connection with the ownership and
operation of the Property. Borrower is not relying on ▇▇▇▇▇▇’s expertise,
business acumen or advice in connection with the Property.
SECTION
4.3 No
Lender Obligations.
(a) Notwithstanding
the provisions of Subsections 1.1(h) and (n) or Section 1.2 hereof, Lender is
not undertaking the performance of (i) any obligations under the Leases; or
9
(ii) any
obligations with respect to such agreements, contracts, certificates,
instruments, franchises, permits, trademarks, licenses and other
documents.
(b) By
accepting or approving anything required to be observed, performed or fulfilled
or to be given to Lender pursuant to this Security Instrument, the Loan
Agreement, the Note or the other Loan Documents, including, without limitation,
any Officer’s Certificate, balance sheet, statement of profit and loss or other
financial statement, survey, appraisal, or Policy, Lender shall not be deemed to
have warranted, consented to, or affirmed the sufficiency, the legality or
effectiveness of same, and such acceptance or approval thereof shall not
constitute any warranty or affirmation with respect thereto by
▇▇▇▇▇▇.
SECTION
4.4 Reliance.
Borrower recognizes and acknowledges that in accepting the Loan Agreement, the
Note, this Security Instrument and the other Loan Documents, Lender is expressly
and primarily relying on the truth and accuracy of the warranties and
representations set forth in Section 4.1 of the Loan Agreement without any
obligation to investigate the Property and notwithstanding any investigation of
the Property by Lender; that such reliance existed on the part of Lender prior
to the date hereof, that the warranties and representations are a material
inducement to Lender in making the Loan; and that ▇▇▇▇▇▇ would not be willing to
make the Loan and accept this Security Instrument in the absence of the
warranties and representations as set forth in Section 4.1 of the Loan
Agreement.
ARTICLE
5
FURTHER
ASSURANCES
SECTION
5.1 Recording
of Security Instrument, etc.
Borrower forthwith upon the execution and delivery of this Security Instrument
and thereafter, from time to time, will cause this Security Instrument and any
of the other Loan Documents creating a Lien or security interest or evidencing
the Lien hereof upon the Property and each instrument of further assurance to be
filed, registered or recorded in such manner and in such places as may be
required by any present or future law in order to publish notice of and fully to
protect and perfect the Lien or security interest hereof upon, and the interest
of ▇▇▇▇▇▇ in, the Property. Borrower will pay all taxes, document stamps,
filing, registration or recording fees, and all expenses incident to the
preparation, execution, acknowledgment and/or recording of the Note, this
Security Instrument, the other Loan Documents, any note, deed of trust or
mortgage supplemental hereto, any security instrument with respect to the
Property and any instrument of further assurance, and any modification or
amendment of the foregoing documents, and all federal, state, county and
municipal taxes, duties, imposts, assessments and charges arising out of or in
connection with the execution and delivery of this Security Instrument, any deed
of trust or mortgage supplemental hereto, any security instrument with respect
to the Property or any instrument of further assurance, and any modification or
amendment of the foregoing documents, except where prohibited by law so to
do.
SECTION
5.2 Further
Acts, etc.
Borrower will, at the cost of ▇▇▇▇▇▇▇▇, and without expense to ▇▇▇▇▇▇, do,
execute, acknowledge and deliver all further acts, deeds, conveyances, deeds of
trust, mortgages, deeds to secure debt, assignments, notices of assignments,
transfers and assurances as Lender shall, from time to time, reasonably require,
for the better assuring, conveying, assigning, transferring, and confirming unto
Lender the property and rights hereby
10
mortgaged,
deeded, granted, bargained, sold, conveyed, confirmed, pledged, assigned,
warranted and transferred or intended now or hereafter so to be, or which
Borrower may be or may hereafter become bound to convey or assign to Lender, or
for carrying out the intention or facilitating the performance of the terms of
this Security Instrument or for filing, registering or recording this Security
Instrument, or for complying with all Legal Requirements. ▇▇▇▇▇▇▇▇, on demand,
will authorize and deliver, and in the event it shall fail to so authorize and
deliver, hereby authorizes ▇▇▇▇▇▇ and Trustee to file one or more financing
statements to evidence more effectively the security interest of ▇▇▇▇▇▇ in the
Property. Borrower grants to Lender and Trustee an irrevocable power of attorney
coupled with an interest for the purpose of exercising and perfecting any and
all rights and remedies available to Lender at law and in equity, including
without limitation, such rights and remedies available to Lender pursuant to
this Section 5.2.
SECTION
5.3 Changes
in Tax, Debt, Credit and Documentary Stamp Laws.
(a) If any
law is enacted or adopted or amended after the date of this Security Instrument
which deducts the Debt from the value of the Property for the purpose of
taxation or which imposes a tax, either directly or indirectly, on the Debt or
▇▇▇▇▇▇’s interest in the Property, Borrower will pay the tax, with interest and
penalties thereon, if any. If ▇▇▇▇▇▇ is advised by counsel chosen by it that the
payment of tax by ▇▇▇▇▇▇▇▇ would be unlawful or taxable to Lender or
unenforceable or provide the basis for a defense of usury then Lender shall have
the option by written notice of not less than one hundred twenty (120) days to
declare the Debt immediately due and payable.
(b) Borrower
will not claim or demand or be entitled to any credit or credits on account of
the Debt for any part of the Taxes or Other Charges assessed against the
Property, or any part thereof, and no deduction shall otherwise be made or
claimed from the assessed value of the Property, or any part thereof, for real
estate tax purposes by reason of this Security Instrument or the Debt. If such
claim, credit or deduction shall be required by law, Lender shall have the
option, by written notice of not less than one hundred twenty (120) days, to
declare the Debt immediately due and payable.
(c) If at any
time the United States of America, any State thereof or any subdivision of any
such State shall require revenue or other stamps to be affixed to the Note, this
Security Instrument, or any of the other Loan Documents or impose any other tax
or charge on the same, Borrower will pay for the same, with interest and
penalties thereon, if any.
SECTION
5.4 Severing
of Mortgage. This
Security Instrument and the Note shall, at any time until the same shall be
fully paid and satisfied, at the sole election of Lender, be severed into two or
more notes and two or more security instruments in such denominations as Lender
shall determine in its sole discretion, each of which shall cover all or a
portion of the Property to be more particularly described therein. To that end,
Borrower, upon written request of ▇▇▇▇▇▇, shall execute, acknowledge and
deliver, or cause to be executed, acknowledged and delivered by the then owner
of the Property, to Lender and/or its designee or designees, substitute notes
and security instruments in such principal amounts, aggregating not more than
the then unpaid principal amount of this Security Instrument, and containing
terms, provisions and clauses similar to those contained herein and in the Note,
and such other documents and instruments as may be required by
▇▇▇▇▇▇.
11
SECTION
5.5 Replacement
Documents. Upon
receipt of an affidavit of an officer of Lender as to the loss, theft,
destruction or mutilation of the Note or any other Loan Document which is not of
public record, and, in the case of any such mutilation, upon surrender and
cancellation of such Note or other Loan Document, Borrower will issue, in lieu
thereof, a replacement Note or other Loan Document, dated the date of such lost,
stolen, destroyed or mutilated Note or other Loan Document in the same principal
amount thereof and otherwise of like tenor.
ARTICLE
6
DUE ON
SALE/ENCUMBRANCE
SECTION
6.1 Lender
Reliance.
Borrower acknowledges that ▇▇▇▇▇▇ has examined and relied on the experience of
Borrower and its general partners, managers, members, principals and (if
Borrower is a trust) beneficial owners in owning and operating properties such
as the Property in agreeing to make the Loan, and will continue to rely on
▇▇▇▇▇▇▇▇’s ownership of the Property as a means of maintaining the value of the
Property as security for repayment of the Debt and the performance of the Other
Obligations. Borrower acknowledges that ▇▇▇▇▇▇ has a valid interest in
maintaining the value of the Property so as to ensure that, should Borrower
default in the repayment of the Debt or the performance of the Other
Obligations, ▇▇▇▇▇▇ can recover the Debt by a sale of the Property.
SECTION
6.2 No
Sale/Encumbrance. Neither
Borrower nor any Restricted Party shall Transfer the Property or any part
thereof or any interest therein or permit or suffer the Property or any part
thereof or any interest therein to be Transferred other than as expressly
permitted pursuant to the terms of the Loan Agreement.
ARTICLE
7
RIGHTS
AND REMEDIES UPON DEFAULT
SECTION
7.1 Remedies. Upon
the occurrence and during the continuance of any Event of Default, ▇▇▇▇▇▇▇▇
agrees that Lender or Trustee may take such action, without notice or demand, as
it deems advisable to protect and enforce its rights against ▇▇▇▇▇▇▇▇ and in and
to the Property, including, but not limited to, the following actions, each of
which may be pursued concurrently or otherwise, at such time and in such order
as Lender may determine, in its sole discretion, without impairing or otherwise
affecting the other rights and remedies of Lender:
(a) declare
the entire unpaid Debt to be immediately due and payable;
(b) institute
proceedings, judicial or otherwise, for the complete foreclosure of this
Security Instrument under any applicable provision of law, in which case the
Property or any interest therein may be sold for cash or upon credit in one or
more parcels or in several interests or portions and in any order or
manner;
(c) with or
without entry, to the extent permitted and pursuant to the procedures provided
by applicable law, institute proceedings for the partial foreclosure of this
Security Instrument for the portion of the Debt then due and payable, subject to
the continuing Lien and security interest of this Security Instrument for the
balance of the Debt not then due, unimpaired and without loss of
priority;
12
(d) sell for
cash or upon credit the Property or any part thereof and all estate, claim,
demand, right, title and interest of Borrower therein and rights of redemption
thereof, pursuant to power of sale or otherwise, at one or more sales, as an
entirety or in parcels, at such time and place, upon such terms and after such
notice thereof as may be required or permitted by law;
(e) institute
an action, suit or proceeding in equity for the specific performance of any
covenant, condition or agreement contained herein, in the Note, the Loan
Agreement or in the other Loan Documents;
(f) recover
judgment on the Note either before, during or after any proceedings for the
enforcement of this Security Instrument or the other Loan
Documents;
(g) apply for
the appointment of a receiver, trustee, liquidator or conservator of the
Property, without notice and without regard for the adequacy of the security for
the Debt and without regard for the solvency of Borrower, any guarantor,
indemnitor with respect to the Loan or of any Person liable for the payment of
the Debt;
(h) the
license granted to Borrower under Section 1.2 hereof shall automatically be
revoked and Lender may enter into or upon the Property, either personally or by
its agents, nominees or attorneys and dispossess Borrower and its agents and
servants therefrom, without liability for trespass, damages or otherwise and
exclude Borrower and its agents or servants wholly therefrom, and take
possession of all books, records and accounts relating thereto and ▇▇▇▇▇▇▇▇
agrees to surrender possession of the Property and of such books, records and
accounts to Lender upon demand, and thereupon Lender may (i) use, operate,
manage, control, insure, maintain, repair, restore and otherwise deal with all
and every part of the Property and conduct the business thereat; (ii) complete
any construction on the Property in such manner and form as Lender deems
advisable; (iii) make alterations, additions, renewals, replacements and
improvements to or on the Property; (iv) exercise all rights and powers of
Borrower with respect to the Property, whether in the name of Borrower or
otherwise, including, without limitation, the right to make, cancel, enforce or
modify Leases, obtain and evict tenants, and demand, sue for, collect and
receive all Rents; (v) require Borrower to pay monthly in advance to Lender, or
any receiver appointed to collect the Rents, the fair and reasonable rental
value for the use and occupation of such part of the Property as may be occupied
by Borrower; (vi) require Borrower to vacate and surrender possession of the
Property to Lender or to such receiver and, in default thereof, Borrower may be
evicted by summary proceedings or otherwise; and (vii) apply the receipts from
the Property to the payment of the Debt, in such order, priority and proportions
as Lender shall deem appropriate in its sole discretion after deducting
therefrom all expenses (including reasonable attorneys’ fees) incurred in
connection with the aforesaid operations and all amounts necessary to pay the
Taxes, Other Charges, Insurance Premiums and other expenses in connection with
the Property, as well as just and reasonable compensation for the services of
Lender, its counsel, agents and employees;
(i) exercise
any and all rights and remedies granted to a secured party upon default under
the Uniform Commercial Code, including, without limiting the generality of the
foregoing: (i) the right to take possession of the Fixtures, the Equipment, the
Personal Property or any part thereof, and to take such other measures as Lender
may deem necessary for the care,
13
protection
and preservation of the Fixtures, the Equipment, the Personal Property, and (ii)
request Borrower at its expense to assemble the Fixtures, the Equipment, the
Personal Property and make it available to Lender or Trustee at a convenient
place acceptable to Lender. Any notice of sale, disposition or other intended
action by Lender or Trustee with respect to the Fixtures, the Equipment, the
Personal Property sent to Borrower in accordance with the provisions hereof at
least five (5) days prior to such action, shall constitute commercially
reasonable notice to Borrower;
(j) apply any
sums then deposited or held in escrow or otherwise by or on behalf of Lender in
accordance with the terms of the Loan Agreement, this Security Instrument or any
other Loan Document to the payment of the following items in any order in its
sole discretion:
(i) Taxes and
Other Charges;
(ii) Insurance
Premiums;
(iii) Interest
on the unpaid principal balance of the Note;
(iv) Amortization
of the unpaid principal balance of the Note; or
(v) All other
sums payable pursuant to the Note, the Loan Agreement, this Security Instrument
and the other Loan Documents, including, without limitation, advances made by
Lender pursuant to the terms of this Security Instrument;
(k) pursue
such other remedies as Lender may have under applicable law; or
(l) apply the
undisbursed balance of any Net Proceeds Deficiency deposit, together with
interest thereon, to the payment of the Debt in such order, priority and
proportions as Lender shall deem to be appropriate in its
discretion.
In the
event of a sale, by foreclosure, power of sale or otherwise, of less than all of
Property, this Security Instrument shall continue as a lien and security
interest on the remaining portion of the Property unimpaired and without loss of
priority.
SECTION
7.2 Application
of Proceeds. The
purchase money, proceeds and avails of any disposition of the Property, and or
any part thereof, or any other sums collected by Lender pursuant to the Note,
this Security Instrument or the other Loan Documents, may be applied by Lender
to the payment of the Debt in such priority and proportions as Lender in its
discretion shall deem proper.
SECTION
7.3 Right
to Cure Defaults. Upon
the occurrence and during the continuance of any Event of Default, Lender may,
but without any obligation to do so and without notice to or demand on Borrower
and without releasing Borrower from any obligation hereunder, make any payment
or do any act required of Borrower hereunder in such manner and to such extent
as Lender may deem necessary to protect the security hereof. Lender is
authorized to enter upon the Property for such purposes, or appear in, defend,
or bring any action or proceeding to protect its interest in the Property or to
foreclose this Security Instrument or collect the Debt, and the
14
cost and
expense thereof (including reasonable attorneys’ fees to the extent permitted by
law), with interest as provided in this Section 7.3, shall constitute a portion
of the Debt and shall be due and payable to Lender upon demand. All such costs
and expenses incurred by ▇▇▇▇▇▇ in remedying such Event of Default or such
failed payment or act or in appearing in, defending, or bringing any such action
or proceeding shall bear interest at the Default Rate, for the period after
notice from Lender that such cost or expense was incurred to the date of payment
to Lender. All such costs and expenses incurred by Lender together with interest
thereon calculated at the Default Rate shall be deemed to constitute a portion
of the Debt and be secured by this Security Instrument and the other Loan
Documents and shall be immediately due and payable upon demand by Lender
therefor.
SECTION
7.4 Actions
and Proceedings. Lender
and Trustee, or either of them, has the right to appear in and defend any action
or proceeding brought with respect to the Property and to bring any action or
proceeding, in the name and on behalf of ▇▇▇▇▇▇▇▇, which ▇▇▇▇▇▇, in its
discretion, decides should be brought to protect its interest in the
Property.
SECTION
7.5 Recovery
of Sums Required To Be Paid. Lender
shall have the right from time to time to take action to recover any sum or sums
which constitute a part of the Debt as the same become due, without regard to
whether or not the balance of the Debt shall be due, and without prejudice to
the right of Lender thereafter to bring an action of foreclosure, or any other
action, for a default or defaults by Borrower existing at the time such earlier
action was commenced.
SECTION
7.6 Examination
of Books and Records. At
reasonable times and upon reasonable notice, Lender, its agents, accountants and
attorneys shall have the right to examine the records, books, management and
other papers of Borrower which reflect upon their financial condition, at the
Property or at any office regularly maintained by Borrower where the books and
records are located. Lender and its agents shall have the right to make copies
and extracts from the foregoing records and other papers. In addition, at
reasonable times and upon reasonable notice, Lender, its agents, accountants and
attorneys shall have the right to examine and audit the books and records of
Borrower pertaining to the income, expenses and operation of the Property during
reasonable business hours at any office of Borrower where the books and records
are located. This Section 7.6 shall apply throughout the term of the Note and
without regard to whether an Event of Default has occurred or is
continuing.
SECTION
7.7 Other
Rights, etc. (a) The
failure of Lender to insist upon strict performance of any term hereof shall not
be deemed to be a waiver of any term of this Security Instrument. Borrower shall
not be relieved of Borrower’s obligations hereunder by reason of (i) the failure
of Lender to comply with any request of Borrower or any guarantor or indemnitor
with respect to the Loan to take any action to foreclose this Security
Instrument or otherwise enforce any of the provisions hereof or of the Note or
the other Loan Documents, (ii) the release, regardless of consideration, of the
whole or any part of the Property, or of any person liable for the Debt or any
portion thereof, or (iii) any agreement or stipulation by Lender extending the
time of payment or otherwise modifying or supplementing the terms of the Note,
this Security Instrument or the other Loan Documents.
15
(b) It is
agreed that the risk of loss or damage to the Property is on Borrower, and
Lender shall have no liability whatsoever for decline in value of the Property,
for failure to maintain the Policies, or for failure to determine whether
insurance in force is adequate as to the amount of risks insured. Possession by
▇▇▇▇▇▇ shall not be deemed an election of judicial relief if any such possession
is requested or obtained with respect to any Property or collateral not in
Lender’s possession.
(c) Lender
may resort for the payment of the Debt to any other security held by ▇▇▇▇▇▇ in
such order and manner as Lender, in its discretion, may elect. Lender may take
action to recover the Debt, or any portion thereof, or to enforce any covenant
hereof without prejudice to the right of Lender thereafter to foreclose this
Security Instrument. The rights of Lender under this Security Instrument shall
be separate, distinct and cumulative and none shall be given effect to the
exclusion of the others. No act of Lender shall be construed as an election to
proceed under any one provision herein to the exclusion of any other provision.
Lender shall not be limited exclusively to the rights and remedies herein stated
but shall be entitled to every right and remedy now or hereafter afforded at law
or in equity.
SECTION
7.8 Right
to Release Any Portion of the Property. Lender,
or Trustee upon written instructions from Lender, may release any portion of the
Property in accordance with the terms and conditions set forth in the Loan
Agreement without, as to the remainder of the Property, in any way impairing or
affecting the lien or priority of this Security Instrument, or improving the
position of any subordinate lienholder with respect thereto, except to the
extent that the obligations hereunder shall have been reduced by the actual
monetary consideration, if any, received by Lender for such release, and may
accept by assignment, pledge or otherwise any other property in place thereof as
Lender may require without being accountable for so doing to any other
lienholder. This Security Instrument shall continue as a lien and security
interest in the remaining portion of the Property.
SECTION
7.9 Violation
of Laws. If the
Property is not in material compliance with Legal Requirements, Lender may
impose additional requirements upon Borrower in connection herewith including,
without limitation, monetary reserves or financial equivalents.
SECTION
7.10 Recourse
and Choice of Remedies.
Notwithstanding any other provision of this Security Instrument or the Loan
Agreement, including, without limitation, Section 9.4 of the Loan Agreement,
Lender and other Indemnified Parties (as hereinafter defined) are entitled to
enforce the obligations of Borrower, any guarantor and indemnitor contained in
Sections 8.2, 8.3 and 8.4 herein without first resorting to or exhausting any
security or collateral and without first having recourse to the Note or any of
the Property, through foreclosure or acceptance of a deed in lieu of foreclosure
or otherwise, and in the event Lender commences a foreclosure action against the
Property, Lender is entitled to pursue a deficiency judgment with respect to
such obligations against Borrower and, to the extent permitted by the Loan
Agreement and the other Loan Documents, any guarantor or indemnitor with respect
to the Loan. The provisions of Sections 8.2, 8.3 and 8.4 herein are recourse and
Borrower and any guarantor or indemnitor with respect to the Loan are fully and
personally liable for the obligations pursuant to Sections 8.2, 8.3 and 8.4
herein to the extent provided in the Loan Agreement and the Guaranties, and
under the laws of the State of California. The liability of Borrower with
respect to the Loan pursuant to Sections 8.2, 8.3 and 8.4 herein is not limited
to the original principal amount of the Note, to the
16
extent
provided in the Loan Agreement and under the laws of the State of California.
Notwithstanding the foregoing, nothing herein shall inhibit or prevent Lender
from foreclosing or exercising any other rights and remedies pursuant to the
Loan Agreement, the Note, this Security Instrument and the other Loan Documents,
whether simultaneously with foreclosure proceedings or in any other sequence. A
separate action or actions may be brought and prosecuted against Borrower
pursuant to Sections 8.2, 8.3 and 8.4 herein whether or not action is brought
against any other Person or whether or not any other Person is joined in the
action or actions.
SECTION
7.11 Right
of Entry. Upon
reasonable notice to Borrower, Lender and its agents (including Trustee) shall
have the right to enter and inspect the Property at all reasonable
times.
ARTICLE
8
INDEMNIFICATION
SECTION
8.1 General
Indemnification.
Borrower shall, at its sole cost and expense, protect, defend, indemnify,
release and hold harmless the Indemnified Parties from and against any and all
claims, suits, liabilities (including, without limitation, strict liabilities),
actions, proceedings, obligations, debts, damages, losses, costs, expenses,
diminutions in value, fines, penalties, charges, fees, expenses, judgments,
awards, amounts paid in settlement, punitive damages, foreseeable and
unforeseeable consequential damages, of whatever kind or nature (including, but
not limited, to reasonable attorneys’ fees and other costs of defense)
(collectively, the “Losses”) imposed upon or incurred by or asserted against any
Indemnified Parties and directly or indirectly arising out of or in any way
relating to any one or more of the following: (a) ownership of this Security
Instrument, the Property or any interest therein or receipt of any Rents; (b)
any amendment to the Debt, the Note, the Loan Agreement, this Security
Instrument, or any other Loan Documents; (c) any and all lawful action that may
be taken by Lender in connection with the enforcement of the provisions of this
Security Instrument, the Loan Agreement, the Note or any of the other Loan
Documents, whether or not suit is filed in connection with same, or in
connection with Borrower, any guarantor or indemnitor and/or any partner, joint
venturer or shareholder thereof becoming a party to a voluntary or involuntary
federal or state bankruptcy, insolvency or similar proceeding; (d) any accident,
injury to, or death of, persons or loss of or damage to property occurring in,
on or about the Property or any part thereof or on the adjoining sidewalks,
curbs, adjacent property or adjacent parking areas, streets or ways; (e) any
use, nonuse or condition in, on or about the Property or any part thereof or on
the adjoining sidewalks, curbs, adjacent property or adjacent parking areas,
streets or ways; (f) any failure on the part of Borrower to perform or be in
compliance with any of the terms of this Security Instrument, the Note, the Loan
Agreement or any of the other Loan Documents; (g) performance of any labor or
services or the furnishing of any materials or other property in respect of the
Property or any part thereof; (h) the failure of any person to file timely
with the Internal Revenue Service an accurate Form 1099-B, Statement for
Recipients of Proceeds from Real Estate, Broker and Barter Exchange
Transactions, which may be required in connection with this Security Instrument,
or to supply a copy thereof in a timely fashion to the recipient of the proceeds
of the transaction in connection with which this Security Instrument is made;
(i) any failure of the Property to be in compliance with any Legal Requirements;
(j) the enforcement by any Indemnified Party of the provisions of this Article
8; (k) any and all claims and demands
17
whatsoever
which may be asserted against Lender by reason of any alleged obligations or
undertakings on its part to perform or discharge any of the terms, covenants, or
agreements contained in any Lease; (l) the payment of any commission, charge or
brokerage fee to anyone claiming through Borrower which may be payable in
connection with the funding of the Loan; or (m) any misrepresentation made by
Borrower in this Security Instrument or any other Loan Document. Any amounts
payable to Lender by reason of the application of this Section 8.1 shall become
immediately due and payable and shall bear interest at the Applicable Rate from
the date loss or damage is sustained by Lender until paid. For purposes of this
Article 8, the term “Indemnified Parties” means Lender, Trustee and any Person
who is or will have been involved in the origination of the Loan, any Person who
is or will have been involved in the servicing of the Loan, any Person in whose
name the encumbrance created by this Security Instrument is or will have been
recorded, Persons who may hold or acquire or will have held a full or partial
interest in the Loan (including, but not limited to, investors or prospective
investors in the Securities, as well as custodians, trustees and other
fiduciaries who hold or have held a full or partial interest in the Loan for the
benefit of third parties) as well as the respective directors, officers,
shareholders, partners, employees, agents, servants, representatives,
contractors, subcontractors, affiliates, subsidiaries, participants, successors
and assigns of any and all of the foregoing (including, but not limited to, any
other Person who holds or acquires or will have held a participation or other
full or partial interest in the Loan, whether during the term of the Loan or as
a part of or following a foreclosure of the Loan and any successors by merger,
consolidation or acquisition of all or a substantial portion of Lender’s assets
and business).
SECTION
8.2 Mortgage
and/or Intangible Tax.
Borrower shall, at its sole cost and expense, protect, defend, indemnify,
release and hold harmless the Indemnified Parties from and against any and all
Losses imposed upon or incurred by or asserted against any Indemnified Parties
and directly or indirectly arising out of or in any way relating to any tax on
the making and/or recording of this Security Instrument, the Note or any of the
other Loan Documents, but excluding any income, franchise or other similar
taxes.
SECTION
8.3 ERISA
Indemnification.
Borrower shall, at its sole cost and expense, protect, defend, indemnify,
release and hold harmless the Indemnified Parties from and against any and all
Losses (including, without limitation, reasonable attorneys’ fees and costs
incurred in the investigation, defense, and settlement of Losses incurred in
correcting any prohibited transaction or in the sale of a prohibited loan, and
in obtaining any individual prohibited transaction exemption under ERISA that
may be required, in ▇▇▇▇▇▇’s sole discretion) that Lender may incur, directly or
indirectly, as a result of a default under Sections 4.1.9 or 5.2.9 of the Loan
Agreement.
SECTION
8.4 Environmental
Indemnification.
Borrower shall, at its sole cost and expense, protect, defend, indemnify,
release and hold harmless the Indemnified Parties from and against any and all
Losses imposed upon or incurred by or asserted against any Indemnified Parties
and directly or indirectly arising out of or in any way relating to any one or
more of the following: (a) any presence of any Hazardous Substances in, on,
above, or under the Property; (b) any past, present or threatened Release of
Hazardous Substances in, on, above, under or from the Property; (c) any activity
by Borrower, any Person affiliated with Borrower, and/or any tenant or other
user of the Property in connection with any actual, proposed or threatened use,
treatment, storage, holding, existence, disposition or other Release,
generation, production,
18
manufacturing,
processing, refining, control, management, abatement, removal, handling,
transfer or transportation to or from the Property of any Hazardous Substances
at any time located in, under, on or above the Property; (d) any activity by
Borrower, any Person affiliated with Borrower, and any tenant or other user of
the Property in connection with any actual or proposed Remediation of any
Hazardous Substances at any time located in, under, on or above the Property,
whether or not such Remediation is voluntary or pursuant to court or
administrative order, including, but not limited to, any removal, remedial or
corrective action; (e) any past, present or threatened non-compliance or
violation of any Environmental Law (or of any permit issued pursuant to any
Environmental Law) in connection with the Property or operations thereon,
including, but not limited to, any failure by Borrower, any Person affiliated
with Borrower, and any tenant or other user of the Property to comply with any
order of any Governmental Authority in connection with any Environmental Laws;
(f) the imposition, recording or filing of any Environmental Lien (as defined in
the Environmental Indemnity) encumbering the Property; (g) any administrative
processes or proceedings or judicial proceedings in any way connected with any
matter addressed in Section 9.4 of the Loan Agreement; (h) any past, present or
threatened injury to, destruction of or loss of natural resources in any way
connected with the Property, including, but not limited to, costs to investigate
and assess such injury, destruction or loss; (i) any acts of Borrower, any
Person affiliated with Borrower, and/or any tenant or other user of the Property
in arranging for the disposal or treatment, or arranging with a transporter for
transport for the disposal or treatment, of the Hazardous Substances at any
facility or incineration vessel containing Hazardous Substances; (j) any acts of
Borrower, any Person affiliated with Borrower, and/or any tenant or other user
of the Property in accepting any Hazardous Substances for transport to disposal
or treatment facilities, incineration vessels or sites from which there is a
Release, or a threatened Release of any Hazardous Substance which causes the
incurrence of costs for Remediation; (k) any personal injury, wrongful death, or
property or other damage arising under any statutory or common law or tort law
theory, including, but not limited to, damages assessed for private or public
nuisance or for the conducting of an abnormally dangerous activity on or near
the Property; and (l) any misrepresentation or inaccuracy in any representation
or warranty or material breach or failure to perform any covenants or other
obligations pursuant to this Security Instrument, the Loan Agreement or the
Environmental Indemnity. For the purposes of this Section 8.4, (i) the term
“Losses” includes any losses, damages, costs, fees, expenses, claims, suits,
judgments, awards, liabilities (including, but not limited to, strict
liabilities), obligations, debts, diminutions in value, fines, penalties,
charges, costs of Remediation (whether or not performed voluntarily), amounts
paid in settlement, foreseeable and unforeseeable consequential damages, and
reasonable litigation costs, attorneys’ fees, engineers’ fees, environmental
consultants’ fees, and investigation costs (including, but not limited to, costs
for sampling, testing and analysis of soil, water, air, building materials, and
other materials and substances whether solid, liquid or gas), of whatever kind
or nature, and whether or not incurred in connection with any judicial or
administrative proceedings, actions, claims, suits, judgments or awards, (ii)
the term “Release” includes, but is not limited to, any release, deposit,
discharge, emission, leaking, leaching, spilling, seeping, migrating, injecting,
pumping, pouring, emptying, escaping, dumping, disposing or other movement of
Hazardous Substances, (iii) the term “Remediation” includes, but is not limited
to, any response, remedial, removal, or corrective action; any activity to clean
up, detoxify, decontaminate, contain or otherwise remediate any Hazardous
Substance; any actions to prevent, cure or mitigate any Release of any Hazardous
19
Substance;
any action to comply with any Environmental Laws or with any permits issued
pursuant thereto; any inspection, investigation, study, monitoring, assessment,
audit, sampling and testing, laboratory or other analysis, or evaluation
relating to any Hazardous Substances or to anything referred to herein and (iv)
the term “Hazardous Substances” includes, but is not limited to, any and all
substances (whether solid, liquid or gas) defined, listed, or otherwise
classified as pollutants, hazardous wastes, hazardous substances, hazardous
materials, extremely hazardous wastes, or words of similar meaning or regulatory
effect under any present or future Environmental Laws or that may have a
negative impact on human health or the environment, including, but not limited
to, petroleum and petroleum products, asbestos and asbestos-containing
materials, polychlorinated biphenyls, lead, radon, toxic mold, radioactive
materials, flammables and explosives, but excluding substances of kinds and in
amounts ordinarily and customarily used or stored in properties similar to the
Property for the purposes of cleaning or other maintenance or operations and
otherwise in compliance with all Environmental Laws. The indemnity set forth in
this Section 8.4 shall specifically not include any such costs relating to
Hazardous Substances which are initially placed on, in or under the Property or
any surrounding areas after foreclosure or other taking of title to or actual
possession of the Property by any Indemnified Party or its
designees.
SECTION
8.5 Duty
to Defend; Attorneys’ Fees and Other Fees and Expenses. Upon
written request by any Indemnified Party, Borrower shall defend such Indemnified
Party (if requested by any Indemnified Party, in the name of the Indemnified
Party) by attorneys and other professionals approved by the Indemnified Parties.
Notwithstanding the foregoing, if the defendants in any such claim or proceeding
include both Borrower and any Indemnified Party and Borrower and such
Indemnified Party shall have reasonably concluded that there are any legal
defenses available to it and/or other Indemnified Parties that are different
from or additional to those available to Borrower, such Indemnified Party shall
have the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
Indemnified Party, provided that no compromise or settlement shall be entered
without Borrower’s consent, which consent shall not be unreasonably withheld.
Upon demand, ▇▇▇▇▇▇▇▇ shall pay or, in the sole and absolute discretion of the
Indemnified Parties, reimburse, the Indemnified Parties for the payment of
reasonable fees and disbursements of attorneys, engineers, environmental
consultants, laboratories and other professionals in connection
therewith.
ARTICLE
9
WAIVERS
SECTION
9.1 Waiver
of Counterclaim. To the
extent permitted by applicable law, Borrower hereby waives the right to assert a
counterclaim, other than a mandatory or compulsory counterclaim, in any action
or proceeding brought against it by Lender or Trustee arising out of or in any
way connected with this Security Instrument, the Loan Agreement, the Note, any
of the other Loan Documents, or the Obligations.
SECTION
9.2 Marshalling
and Other Matters. To the
extent permitted by applicable law, Borrower hereby waives the benefit of all
appraisement, valuation, stay, extension, reinstatement and redemption laws now
or hereafter in force and all rights of marshalling in the event of any sale
hereunder of the Property or any part thereof or any interest therein. Further,
20
Borrower
hereby expressly waives any and all rights of redemption from sale under any
order or decree of foreclosure of this Security Instrument on behalf of
▇▇▇▇▇▇▇▇, and on behalf of each and every person acquiring any interest in or
title to the Property subsequent to the date of this Security Instrument and on
behalf of all persons to the extent permitted by applicable law.
SECTION
9.3 Waiver
of Notice. To the
extent permitted by applicable law, Borrower shall not be entitled to any
notices of any nature whatsoever from Lender or Trustee except with respect to
matters for which this Security Instrument specifically and expressly provides
for the giving of notice by Lender or Trustee to Borrower and except with
respect to matters for which Lender is required by applicable law to give
notice, and Borrower hereby expressly waives the right to receive any notice
from Lender or Trustee with respect to any matter for which this Security
Instrument does not specifically and expressly provide for the giving of notice
by Lender or Trustee to Borrower.
SECTION
9.4 Waiver
of Statute of Limitations. To the
extent permitted by applicable law, Borrower hereby expressly waives and
releases to the fullest extent permitted by law, the pleading of any statute of
limitations as a defense to payment of the Debt or performance of its Other
Obligations.
SECTION
9.5 Survival. The
indemnifications made pursuant to Sections 8.3 and 8.4 herein shall continue
indefinitely in full force and effect and shall survive and shall in no way be
impaired by any of the following: any satisfaction or other termination of this
Security Instrument, any assignment or other transfer of all or any portion of
this Security Instrument or Lender’s interest in the Property (but, in such
case, shall benefit both Indemnified Parties and any assignee or transferee),
any exercise of Lender’s rights and remedies pursuant hereto including, but not
limited to, foreclosure or acceptance of a deed in lieu of foreclosure, any
exercise of any rights and remedies pursuant to the Loan Agreement, the Note or
any of the other Loan Documents, any transfer of all or any portion of the
Property (whether by Borrower or by Lender following foreclosure or acceptance
of a deed in lieu of foreclosure or at any other time), any amendment to this
Security Instrument, the Loan Agreement, the Note or the other Loan Documents,
and any act or omission that might otherwise be construed as a release or
discharge of Borrower from the obligations pursuant hereto.
ARTICLE
10
EXCULPATION
The
provisions of Section 9.4 of the Loan Agreement are hereby incorporated by
reference into this Security Instrument to the same extent and with the same
force as if fully set forth herein.
ARTICLE
11
NOTICES
All
notices or other written communications hereunder shall be delivered in
accordance with Section 10.6 of the Loan Agreement.
21
ARTICLE
12
APPLICABLE
LAW
SECTION
12.1 Governing
Law. This
security instrument shall be governed in accordance with the terms and
provisions of Section 10.3 of the Loan Agreement.
SECTION
12.2 Usury
Laws.
Notwithstanding anything to the contrary, (a) all agreements and communications
between Borrower and Lender are hereby and shall automatically be limited so
that, after taking into account all amounts deemed interest, the interest
contracted for, charged or received by Lender shall never exceed the Maximum
Legal Rate or amount, (b) in calculating whether any interest exceeds the
Maximum Legal Rate, all such interest shall be amortized, prorated, allocated
and spread over the full amount and term of all principal indebtedness of
Borrower to Lender, and (c) if through any contingency or event, Lender receives
or is deemed to receive interest in excess of the Maximum Legal Rate, any such
excess shall be deemed to have been applied toward payment of the principal of
any and all then outstanding indebtedness of Borrower to Lender, or if there is
no such indebtedness, shall immediately be returned to Borrower.
SECTION
12.3 Provisions
Subject to Applicable Law. All
rights, powers and remedies provided in this Security Instrument may be
exercised only to the extent that the exercise thereof does not violate any
applicable provisions of law and are intended to be limited to the extent
necessary so that they will not render this Security Instrument invalid,
unenforceable or not entitled to be recorded, registered or filed under the
provisions of any applicable law. If any term of this Security Instrument or any
application thereof shall be invalid or unenforceable, the remainder of this
Security Instrument and any other application of the term shall not be affected
thereby.
ARTICLE
13
DEFINITIONS
All
capitalized terms not defined herein shall have the respective meanings set
forth in the Loan Agreement. Unless the context clearly indicates a contrary
intent or unless otherwise specifically provided herein, words used in this
Security Instrument may be used interchangeably in singular or plural form and
the word “Borrower” shall mean “each Borrower and any subsequent owner or owners
of the Property or any part thereof or any interest therein,” the word “Lender”
shall mean “Lender and any subsequent holder of the Note,” the word “Note” shall
mean “the Note and any other evidence of indebtedness secured by this Security
Instrument,” the word “Property” shall include any portion of the Property and
any interest therein, and the phrases “attorneys’ fees”, “legal fees” and
“counsel fees” shall include any and all attorneys’, paralegal and law clerk
fees and disbursements, including, but not limited to, fees and disbursements at
the pre-trial, trial and appellate levels incurred or paid by ▇▇▇▇▇▇ in
protecting its interest in the Property, the Leases and the Rents and enforcing
its rights hereunder.
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ARTICLE
14
MISCELLANEOUS
PROVISIONS
SECTION
14.1 No
Oral Change. This
Security Instrument, and any provisions hereof, may not be modified, amended,
waived, extended, changed, discharged or terminated orally or by any act or
failure to act on the part of Borrower or Lender, but only by an agreement in
writing signed by the party against whom enforcement of any modification,
amendment, waiver, extension, change, discharge or termination is
sought.
SECTION
14.2 Successors
and Assigns. This
Security Instrument shall be binding upon and inure to the benefit of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ and Trustee and their respective successors and assigns
forever.
SECTION
14.3 Inapplicable
Provisions. If any
term, covenant or condition of the Loan Agreement, the Note or this Security
Instrument is held to be invalid, illegal or unenforceable in any respect, the
Loan Agreement, the Note and this Security Instrument shall be construed without
such provision.
SECTION
14.4 Headings,
etc. The
headings and captions of various Sections of this Security Instrument are for
convenience of reference only and are not to be construed as defining or
limiting, in any way, the scope or intent of the provisions hereof.
SECTION
14.5 Number
and Gender.
Whenever the context may require, any pronouns used herein shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns and pronouns shall include the plural and vice versa.
SECTION
14.6 Subrogation. If any
or all of the proceeds of the Note have been used to extinguish, extend or renew
any indebtedness heretofore existing against the Property, then, to the extent
of the funds so used, Lender shall be subrogated to all of the rights, claims,
liens, titles, and interests existing against the Property heretofore held by,
or in favor of, the holder of such indebtedness and such former rights, claims,
liens, titles, and interests, if any, are not waived but rather are continued in
full force and effect in favor of Lender and are merged with the lien and
security interest created herein as cumulative security for the repayment of the
Debt, the performance and discharge of Borrower’s obligations hereunder, under
the Loan Agreement, the Note and the other Loan Documents and the performance
and discharge of the Other Obligations.
SECTION
14.7 Entire
Agreement. The
Note, the Loan Agreement, this Security Instrument and the other Loan Documents
constitute the entire understanding and agreement between Borrower and Lender
with respect to the transactions arising in connection with the Debt and
supersede all prior written or oral understandings and agreements between
Borrower and Lender with respect thereto. Borrower hereby acknowledges that,
except as incorporated in writing in the Note, the Loan Agreement, this Security
Instrument and the other Loan Documents, there are not, and were not, and no
Persons are or were authorized by Lender to make, any representations,
understandings, stipulations, agreements or promises, oral or written, with
respect to the transaction which is the subject of the Note, the Loan Agreement,
this Security Instrument and the other Loan Documents.
23
SECTION
14.8 Limitation
on Lender’s Responsibility. No
provision of this Security Instrument shall operate to place any obligation or
liability for the control, care, management or repair of the Property upon
Lender, nor shall it operate to make Lender responsible or liable for any waste
committed on the Property by the tenants or any other Person, or for any
dangerous or defective condition of the Property, or for any negligence in the
management, upkeep, repair or control of the Property resulting in loss or
injury or death to any tenant, licensee, employee or stranger. Nothing herein
contained shall be construed as constituting Lender a “mortgagee in
possession.”
ARTICLE
15
TRUSTEE’S
FEES; SUBSTITUTE TRUSTEE; POWER OF SALE
SECTION
15.1 Trustee’s
Fees.
Borrower shall pay all statutory or otherwise reasonable costs, fees and
expenses incurred by Trustee and Trustee’s agents and counsel in connection with
the performance by Trustee of Trustee’s duties hereunder and all such costs,
fees and expenses shall be secured by this Security Instrument.
SECTION
15.2 Substitute
Trustee. Trustee
shall be under no duty to take any action hereunder except as expressly required
hereunder or by law, or to perform any act which would involve Trustee in any
expense or liability or to institute or defend any suit in respect hereof,
unless properly indemnified to Trustee’s reasonable satisfaction. Trustee, by
acceptance of this Security Instrument, covenants to perform and fulfill the
trusts herein created, being liable, however, only for gross negligence or
willful misconduct, and hereby waives any statutory fee and agrees to accept
reasonable compensation, in lieu thereof, for any services rendered by Trustee
in accordance with the terms hereof. In the event of the resignation or death of
Trustee, or Trustee’s failure, refusal or inability, for any reason, or, at the
option of Lender, without cause, Lender may appoint, in writing (but without any
other formality or need to record same of public record, to the extent permitted
by law), a substitute trustee, who shall thereupon succeed to all the estates,
titles, rights, powers and trusts herein granted to and vested in Trustee.
Lender may remove Trustee at any time or from time to time and select a
successor trustee. In the event of the death, removal, resignation, refusal to
act, or inability to act of Trustee, or in its sole discretion for any reason
whatsoever, Lender may, without notice and without specifying any reason
therefor and without applying to any court, select and appoint a successor
trustee, by an instrument recorded wherever this Security Instrument is recorded
and all powers, rights, duties and authority of Trustee, as aforesaid, shall
thereupon become vested in such successor. Such substitute trustee shall not be
required to give bond for the faithful performance of the duties of Trustee
hereunder unless required by ▇▇▇▇▇▇. The procedure provided for in this
paragraph for substitution of Trustee shall be in addition to and not in
exclusion of any other provisions for substitution, by law or
otherwise.
SECTION
15.3 Power
of Sale.
(a) Upon the
occurrence of an Event of Default, Trustee, or the agent or successor of
Trustee, at the request of Lender, shall sell or offer for sale the Property in
such portions, order and parcels as Lender may determine with or without having
first taken possession of same, to the highest bidder for cash at one or more
public auctions in accordance with the terms and provisions of the law of the
State in which the Property is located. Such sale
24
shall be
made at the area within the courthouse of the county in which the Property (or
any portion thereof to be sold) is situated (whether the parts or parcels
thereof, if any, in different counties are contiguous or not, and without the
necessity of having any personal property hereby secured present at such sale)
which is designated by the applicable court of such County as the area in which
public sales are to take place, or, if no such area is designated, at the area
at the courthouse designated in the notice of sale as the area in which the sale
will take place, on such day and at such times as permitted under applicable law
of the State where the Property is located, after advertising the time, place
and terms of sale and that portion of the Property in accordance with such law,
and after having served written or printed notice of the proposed sale by
certified mail on each Borrower obligated to pay the Note and other secured
indebtedness secured by this Security Instrument according to the records of
Lender in accordance with applicable law. The affidavit of any person having
knowledge of the facts to the effect that such service was completed shall be
prima facie evidence of the fact of service.
At any
such public sale, Trustee may execute and deliver in the name of Borrower to the
purchaser a conveyance of the Property or any part of the Property in fee
simple. In the event of any sale under this Security Instrument by virtue of the
exercise of the powers herein granted, or pursuant to any order in any judicial
proceeding or otherwise, the Property may be sold in its entirety or in separate
parcels and in such manner or order as Lender in its sole discretion may elect,
and if Lender so elects, Trustee may sell the personal property covered by this
Security Instrument at one or more separate sales in any manner permitted by the
Uniform Commercial Code of the State in which the Property is located, and one
or more exercises of the powers herein granted shall not extinguish or exhaust
such powers, until all the Property is sold or the Note and other secured
indebtedness is paid in full. If the Note and other secured indebtedness is now
or hereafter further secured by any chattel mortgages, pledges, contracts or
guaranty, assignments of lease, or other security instruments, Lender at its
option may exhaust the remedies granted under any of said security instruments
either concurrently or independently, and in such order as Lender may
determine.
(b) Upon any
foreclosure sale or sales of all or any portion of the Property under the power
herein granted, Lender may bid for and purchase the Property and shall be
entitled to apply all or any part of the Debt as a credit to the purchase
price.
In the
event of a foreclosure or a sale of all or any portion of the Property under the
power herein granted, the proceeds of said sale shall be applied, in whatever
order Lender in its sole discretion may decide, to the expenses of such sale and
of all proceedings in connection therewith (including, without limitation,
reasonable attorneys’ fees and expenses), to fees and expenses of Trustee
(including, without limitation, Trustee’s reasonable attorneys’ fees and
expenses), to insurance premiums, liens, assessments, taxes and charges
(including, without limitation, utility charges advanced by Lender), to payment
of the outstanding principal balance of the Debt, and to the accrued interest on
all of the foregoing; and the remainder, if any, shall be paid to Borrower, or
to the person or entity lawfully entitled thereto.
25
ARTICLE
16
STATE-SPECIFIC
PROVISIONS
SECTION
16.1 Principles
of Construction. In the
event of any inconsistencies between the terms and conditions of this Article 16
and the terms and conditions of this Security Instrument, the terms and
conditions of this Article 16 shall control and be binding.
SECTION
16.2 Guaranty
Not Secured.
Anything to the contrary herein or elsewhere notwithstanding, the obligations of
any guarantor under the Guaranty Agreement or under any other separate guaranty
accepted by Lender shall not be secured by this Security Instrument, any
separate assignment of leases or assignment of rents, or any other lien
encumbering the Property; provided however that the Environmental Indemnity
shall be so secured, subject to the rights of Lender to proceed on an unsecured
basis thereunder pursuant to applicable law.
SECTION
16.3 Fixture
Filing. This
Security Instrument constitutes a fixture filing in accordance with Section 9502
of the California Uniform Commercial Code effective July 1, 2001, as the same
may be amended.
26
IN
WITNESS WHEREOF, this Security Instrument has been executed by ▇▇▇▇▇▇▇▇ as of
the day and year first above written.
|
BORROWER: | ||
|
▇▇▇▇▇▇▇
PROPERTIES - SAN DIEGO TECH CENTER, LLC, | ||
|
a
Delaware limited liability company | ||
|
By: |
/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
|
Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
|
Title:
Assistant Vice President | ||
27