Exhibit 10.159
When Recorded, Return to:
▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC (EKO)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
LOAN NO.: 58108
SERVICING NO.: 3180932
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INLAND WESTERN PHOENIX, L.L.C., as grantor
(Borrower)
To
CHICAGO TITLE INSURANCE COMPANY, as trustee
(Trustee)
for the benefit of
BANK OF AMERICA, N.A., as beneficiary
(Lender)
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DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT
AND FIXTURE FILING
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Dated: As of June 3, 2004
Location: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇: Maricopa
File No.: 017625-002696
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THIS DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, AND SECURITY AGREEMENT
AND FIXTURE FILING (this "SECURITY INSTRUMENT") is made as of this 3rd day of
June, 2004, by INLAND WESTERN PHOENIX, L.L.C., a Delaware limited liability
company, having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as grantor ("BORROWER") to CHICAGO TITLE INSURANCE
COMPANY, a Missouri corporation, having an address at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, as trustee ("TRUSTEE") for the benefit of
BANK OF AMERICA, N.A., a national banking association, having an address at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇-027-20-03, Charlotte, North
Carolina 28255, as mortgagee ("LENDER"). All capitalized terms not defined
herein shall have the respective meanings set forth in the Loan Agreement
(defined below).
RECITALS:
This Security Instrument is given to secure a loan (the "LOAN") in the
principal sum of Fifteen Million Six Hundred Eighty Thousand Five Hundred and
00/100 Dollars ($15,680,500.00) 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 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 Lender (such Promissory
Note, together with all extensions, renewals, replacements, restatements or
modifications thereof being hereinafter referred to as the "NOTE");
Borrower desires to secure the payment of the Debt (as defined in the Loan
Agreement) and the performance of all of its obligations under the Note, the
Loan Agreement and the other Loan Documents (as defined in the Loan Agreement);
and
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.
ARTICLE I
GRANTS OF SECURITY
Section 1.1 PROPERTY MORTGAGED. As to all real property interests
described below, ▇▇▇▇▇▇▇▇ does hereby irrevocably mortgage, grant, convey,
transfer and assign to Trustee, its successors and assigns, in trust and for the
benefit of ▇▇▇▇▇▇ and its successors and assigns the following property, rights,
interests and estates now owned, or hereafter acquired by ▇▇▇▇▇▇▇▇, and, as to
all other interests described below, Borrower does hereby grant to Lender a
security interest in all of the following property, rights, and interests now
owned, or hereafter acquired by Borrower (collectively, the "PROPERTY"):
(a) LAND. The real property 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) FIXTURES AND PERSONAL PROPERTY. All machinery, equipment, fixtures
(including, but not limited to, all heating, air conditioning, plumbing,
lighting, communications and elevator fixtures), furniture, software used in or
to operate any of the foregoing and other property of every kind and nature
whatsoever owned by Borrower, or in which Borrower has or shall have an
interest, now or hereafter located upon the Land and the Improvements, or
appurtenant thereto, and usable in connection with the present or future
operation and occupancy of the Land and the Improvements and all building
equipment, materials and supplies of any nature whatsoever owned by Borrower, or
in which Borrower has or shall have an interest, now or hereafter located upon
the Land and the Improvements, or appurtenant thereto, or usable in connection
with the present or future operation and occupancy of the Land and the
Improvements (collectively, the "PERSONAL PROPERTY"), and the right, title and
interest of ▇▇▇▇▇▇▇▇ 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"), and all proceeds and products of the above;
(f) LEASES AND RENTS. All leases, subleases, subsubleases, lettings,
licenses, concessions or other agreements (whether written or oral) 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,
or other agreements entered into in connection with such leases, subleases,
subsubleases, 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,
whether before or after the filing by or against Borrower of any petition for
relief under any Creditors Rights Laws (collectively, the "Leases") and all
right, title and interest of Borrower, its successors and assigns therein and
thereunder, including, without limitation, cash or securities deposited
thereunder to secure the performance by the lessees of their obligations
thereunder and all rents, additional rents, rent equivalents, moneys payable as
damages or in lieu of rent or rent equivalents, royalties
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(including, without limitation, all oil and gas or other mineral royalties and
bonuses), income, receivables, receipts, revenues, deposits (including, without
limitation, security, utility and other deposits), accounts, cash, issues,
profits, charges for services rendered, and other consideration of whatever form
or nature received by or paid to or for the account of or benefit of Borrower or
its agents or employees from any and all sources arising from or attributable to
the Property, including, all receivables, customer obligations, installment
payment obligations and other obligations now existing or hereafter arising or
created out of the sale, lease, sublease, license, concession or other grant of
the right of the use and occupancy of property or rendering of services by
Borrower or Manager and proceeds, if any, from business interruption or other
loss of income insurance whether paid or accruing before or after the filing by
or against Borrower of any petition for relief under any Creditors Rights Laws
(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;
(g) 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 insurance, judgments, or
settlements made in lieu thereof, for damage to the Property;
(h) CONDEMNATION AWARDS. All Awards, including interest thereon, which may
heretofore and hereafter be made with respect to the Property by reason of
Condemnation, 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;
(i) TAX CERTIORARI. All refunds, rebates or credits in connection with
reduction in real estate taxes and assessments charged against the Property as a
result of tax certiorari or any applications or proceedings for reduction;
(j) 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;
(k) 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;
(l) INTANGIBLES. 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;
(m) ACCOUNTS. All reserves, escrows and deposit accounts maintained by
Borrower with respect to the Property, including, without limitation, the
Reserve Accounts;
3
(n) ESCROW AGREEMENT. Any and all funds being held by Chicago Title
Insurance Company as escrow agent pursuant to that certain Escrow Agreement
dated April 8, 2004, entered into between Paradise Valley Marketplace, L.L.C.,
Sooner Land Company, L.L.C., ▇▇▇▇▇▇ University Place, L.L.C., and Sooner
Investment Office, LLC, as Seller, and Borrower as Buyer, and all Borrower
accounts into which any of the escrow funds are from time to time deposited;
(o) 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; and
(p) OTHER RIGHTS. Any and all other rights of Borrower in and to the items
set forth in subsections (a) through (o) above.
Section 1.2 ASSIGNMENT OF RENTS. Borrower hereby absolutely and
unconditionally assigns to Lender and Trustee 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 Loan Agreement and Section 8.1(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 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 Personal Property to the full
extent that the Personal Property may be subject to the Uniform Commercial Code.
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 CONDITIONS TO GRANT. TO HAVE AND TO HOLD the above granted and
described Property unto Trustee for and on behalf of ▇▇▇▇▇▇ and to the use and
benefit of Lender and Trustee and their successors and assigns, forever; IN
TRUST, WITH POWER OF SALE, to secure payment to Lender of the Debt at the time
and in the manner provided for its payment in the Note 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 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
4
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 Borrower's obligation to indemnify and hold harmless Lender pursuant to the
provisions hereof shall survive any such payment or release.
ARTICLE II
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.
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 performance of the following (the "OTHER OBLIGATIONS"): (a) all
other obligations of Borrower contained herein; (b) each obligation of Borrower
contained in the Loan Agreement and any other Loan Document; and (c) 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."
Section 2.4 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 2.5 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.
ARTICLE III
PROPERTY COVENANTS
Borrower covenants and agrees that:
Section 3.1 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 3.2 TAXES. Borrower shall pay all Taxes and Other Charges assessed
or imposed against the Property or any part thereof in accordance with the Loan
Agreement.
Section 3.3 LEASES. Borrower shall not enter in any Leases for all or any
portion of the Property unless in accordance with the provisions of the Loan
Agreement.
5
Section 3.4 WARRANTY OF TITLE. Borrower has good, indefeasible, marketable
and insurable fee simple title to the real property comprising part of the
Property and good indefeasible and marketable title to the balance of the
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. 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 (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. Borrower shall forever
warrant, defend and preserve the title and the validity and priority of the Lien
of this Security Instrument and shall forever warrant and defend the same to
Lender against the claims of all Persons whomsoever.
Section 3.5 PAYMENT FOR LABOR AND MATERIALS. Borrower will promptly pay
when due all bills and costs for labor, materials, and specifically fabricated
materials 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. Borrower represents there are no claims for payment
for work, labor or materials affecting the Property which are or may become a
lien prior to, or of equal priority with, the Liens created by the Loan
Documents.
ARTICLE IV
FURTHER ASSURANCES
Section 4.1 COMPLIANCE WITH LOAN AGREEMENT. Borrower shall comply with the
covenants set forth in Article 17 of the Loan Agreement in order to protect and
perfect the Lien or security interest hereof upon, and in the interest of ▇▇▇▇▇▇
in, the Property.
Section 4.2 AUTHORIZATION TO FILE FINANCING STATEMENTS; POWER OF ATTORNEY.
Borrower hereby authorizes ▇▇▇▇▇▇ at any time and from time to time to file any
initial financing statements, amendments thereto and continuation statements as
authorized by applicable law, as applicable to all or part of the Personal
Property. For purposes of such filings, ▇▇▇▇▇▇▇▇ agrees to furnish any
information requested by ▇▇▇▇▇▇ promptly upon request by ▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇ also
ratifies its authorization for Lender to have filed any like initial financing
statements, amendments thereto or continuation statements, if filed prior to the
date of this Security Instrument. Borrower hereby irrevocably constitutes and
appoints ▇▇▇▇▇▇ and any officer or agent of ▇▇▇▇▇▇, with full power of
substitution, as its true and lawful attorneys-in-fact with full irrevocable
power and authority in the place and stead of Borrower or in Borrower's own name
to execute in ▇▇▇▇▇▇▇▇'s name any such documents and otherwise to carry out the
purposes of this Section 4.2, to the extent that ▇▇▇▇▇▇▇▇'s authorization above
is not sufficient. To the extent permitted by law, Borrower hereby ratifies all
acts said attorneys-in-fact have lawfully done in
6
the past or shall lawfully do or cause to be done in the future by virtue
hereof. This power of attorney is a power coupled with an interest and shall be
irrevocable.
ARTICLE V
DUE ON SALE/ENCUMBRANCE
Section 5.1 NO SALE/ENCUMBRANCE. Borrower shall not cause or permit a
sale, conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment,
grant of any options with respect to, or any other transfer or disposition
(directly or indirectly, voluntarily or involuntarily, by operation of law or
otherwise, and whether or not for consideration or of record) of a legal or
beneficial interest in the Property or any part thereof, Borrower or any
Restricted Party, other than in accordance with the provisions of Article 7 of
the Loan Agreement, without the prior written consent of ▇▇▇▇▇▇.
ARTICLE VI
PREPAYMENT; RELEASE OF PROPERTY
Section 6.1 PREPAYMENT. The Debt may not be prepaid in whole or in part
except in strict accordance with the express terms and conditions of the Note
and the Loan Agreement.
Section 6.2 PREPAYMENT ON CASUALTY/CONDEMNATION. Provided no Event of
Default exists under any of the Loan Documents, in the event of any prepayment
of the Debt pursuant to the terms of Article 8 of the Loan Agreement, no
prepayment premium shall be due in connection therewith, but Borrower shall be
responsible for all other amounts due under any of the Loan Documents.
Section 6.3 INVOLUNTARY PREPAYMENT. If there is an involuntary prepayment
during the Lockout Period (as defined in the Note), then Borrower shall, in
addition to any portion of the Loan prepaid (together with all interest accrued
and unpaid thereon), pay to Lender a prepayment premium in an amount calculated
in accordance with Section 5(c) of the Note.
Section 6.4 RELEASE OF PROPERTY. Borrower shall not be entitled to a
release of any portion of the Property from the lien of this Security Instrument
except in accordance with terms and conditions of the Loan Agreement.
ARTICLE VII
DEFAULT
Section 7.1 EVENT OF DEFAULT. The term "EVENT OF DEFAULT" as used in this
Security Instrument shall have the meaning assigned to such term in the Loan
Agreement.
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ARTICLE VIII
RIGHTS AND REMEDIES UPON DEFAULT
Section 8.1 REMEDIES. Upon the occurrence and during the continuance of
any Event of Default, ▇▇▇▇▇▇▇▇ agrees that Lender may or acting by or through
Trustee may take such action, without notice or demand, as it deems advisable to
protect and enforce its rights against Borrower 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 or
Trustee may determine, in their sole discretion, without impairing or otherwise
affecting the other rights and remedies of Lender or Trustee:
(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;
(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,
Borrower Principal or any other 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
8
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 of the
Property and every part thereof; (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 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 Personal
Property or any part thereof, and to take such other measures as Lender or
Trustee may deem necessary for the care, protection and preservation of the
Personal Property, and (ii) request Borrower at its expense to assemble the
Personal Property and make it available to Lender at a convenient place
acceptable to Lender. Any notice of sale, disposition or other intended action
by Lender or Trustee with respect to 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 uncontrolled 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; (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) surrender the Policies maintained pursuant to the Loan Agreement,
collect the unearned insurance premiums for the Policies and apply such sums as
a credit on the Debt in such priority and proportion as Lender in its discretion
shall deem proper, and in connection therewith, Borrower hereby appoints Lender
as agent and attorney-in-fact (which is coupled with an interest and is
therefore irrevocable) for Borrower to collect such insurance premiums;
(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; or
9
(m) pursue such other remedies as Lender may have under applicable law.
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. Notwithstanding the provisions of this Section to the contrary, if any
Event of Default as described in Section 10.1(f) of the Loan Agreement shall
occur, the entire unpaid Debt shall be automatically due and payable, without
any further notice, demand or other action by ▇▇▇▇▇▇.
Section 8.2 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 8.3 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 or Trustee 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 cost and expense thereof
(including reasonable attorneys' fees to the extent permitted by law), with
interest as provided in this Section 8.3, shall constitute a portion of the Debt
and shall be due and payable to Lender upon demand. All such costs and expenses
incurred by Lender or Trustee 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 8.4 ACTIONS AND PROCEEDINGS. Lender or Trustee 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
Borrower, which ▇▇▇▇▇▇, in its discretion, decides should be brought to protect
its interest in the Property.
Section 8.5 RECOVERY OF SUMS REQUIRED TO BE PAID. Subject to Article 15 of
the Loan Agreement, ▇▇▇▇▇▇ 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 8.6 OTHER RIGHTS, ETC. (a) The failure of Lender or Trustee to
insist upon strict performance of any term hereof shall not be deemed to be a
waiver of any term of this
10
Security Instrument. Borrower shall not be relieved of Borrower's obligations
hereunder by reason of (i) the failure of Lender or Trustee 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.
(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 the 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 or Trustee may take action to recover the Debt, or any portion thereof,
or to enforce any covenant hereof without prejudice to the right of Lender or
Trustee thereafter to foreclose this Security Instrument. The rights of Lender
or Trustee 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 or Trustee shall be construed as an election to proceed under any one
provision herein to the exclusion of any other provision. Neither Lender nor
Trustee shall 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 8.7 RIGHT TO RELEASE ANY PORTION OF THE PROPERTY. Lender may
release any portion of the Property for such consideration as Lender may require
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 8.8 RIGHT OF ENTRY. Upon reasonable notice to Borrower, Lender and
its agents shall have the right to enter and inspect the Property at all
reasonable times.
Section 8.9 BANKRUPTCY. (a) Upon or at any time after the occurrence of an
Event of Default, Lender shall have the right to proceed in its own name or in
the name of Borrower in respect of any claim, suit, action or proceeding
relating to the rejection of any Lease, including, without limitation, the right
to file and prosecute, to the exclusion of Borrower, any proofs of claim,
complaints, motions, applications, notices and other documents, in any case in
respect of the lessee under such Lease under the Bankruptcy Code.
11
(b) If there shall be filed by or against Borrower a petition under 11
U.S.C. Section 101 et seq., as the same may be amended from time to time (the
"BANKRUPTCY CODE"), and Borrower, as lessor under any Lease, shall determine to
reject such Lease pursuant to Section 365(a) of the Bankruptcy Code, then
Borrower shall give Lender not less than ten (10) days' prior notice of the date
on which Borrower shall apply to the bankruptcy court for authority to reject
the Lease. Lender shall have the right, but not the obligation, to serve upon
Borrower within such ten-day period a notice stating that (i) Lender demands
that ▇▇▇▇▇▇▇▇ assume and assign the Lease to Lender pursuant to Section 365 of
the Bankruptcy Code and (ii) Lender covenants to cure or provide adequate
assurance of future performance under the Lease. If ▇▇▇▇▇▇ serves upon Borrower
the notice described in the preceding sentence, Borrower shall not seek to
reject the Lease and shall comply with the demand provided for in clause (i) of
the preceding sentence within thirty (30) days after the notice shall have been
given, subject to the performance by ▇▇▇▇▇▇ of the covenant provided for in
clause (ii) of the preceding sentence.
Section 8.10 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.
ARTICLE IX
ENVIRONMENTAL HAZARDS
Section 9.1 ENVIRONMENTAL COVENANTS. Borrower has provided representations
and warranties regarding environmental matters set forth in Section 12.1 of the
Loan Agreement and shall comply with the covenants regarding environmental
matters set forth in Section 12.2 of the Loan Agreement.
Section 9.2 LENDER'S RIGHTS. Lender and any other person or entity
designated by ▇▇▇▇▇▇, including but not limited to any representative of a
Governmental Authority, and any environmental consultant, and any receiver
appointed by any court of competent jurisdiction, shall have the right, but not
the obligation, to enter upon the Property at all reasonable times to assess any
and all aspects of the environmental condition of the Property and its use,
including but not limited to conducting any environmental assessment or audit
(the scope of which shall be determined in Lender's sole discretion) and taking
samples of soil, groundwater or other water, air, or building materials, and
conducting other invasive testing. Borrower shall cooperate with and provide
access to Lender and any such person or entity designated by Lender.
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ARTICLE X
WAIVERS
Section 10.1 MARSHALLING AND OTHER MATTERS. Borrower hereby waives, to the
extent permitted by law, the benefit of all Legal Requirements now or hereafter
in force regarding appraisement, valuation, stay, extension, reinstatement and
redemption and all rights of marshalling in the event of any sale hereunder of
the Property or any part thereof or any interest therein. Further, 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
Borrower, 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 Legal Requirements.
Section 10.2 WAIVER OF NOTICE. 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 or the Loan Agreement specifically
and expressly provides for the giving of notice by Lender or Trustee to Borrower
and except with respect to matters for which Borrower is not permitted by Legal
Requirements to waive its right to receive notice, and Borrower hereby expressly
waives the right to receive any notice from Lender 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 10.3 WAIVER OF STATUTE OF LIMITATIONS. Borrower hereby expressly
waives and releases to the fullest extent permitted by law, the pleading of any
statute of 1imitations as a defense to payment of the Debt or performance of its
Other Obligations.
Section 10.4 SOLE DISCRETION OF LENDER. Whenever pursuant to this Security
Instrument, Lender exercises any right given to it to approve or disapprove, or
any arrangement or term is to be satisfactory to Lender, the decision of Lender
to approve or disapprove or to decide whether arrangements or terms are
satisfactory or not satisfactory shall (except as is otherwise specifically
herein provided) be in the sole discretion of Lender and shall be final and
conclusive.
Section 10.5 WAIVER OF TRIAL BY JURY. ▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇ EACH HEREBY
AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND
WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL
NOW OR HEREAFTER EXIST WITH REGARD TO THE LOAN DOCUMENTS, OR ANY CLAIM,
COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF
RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY ▇▇▇▇▇▇▇▇ AND
▇▇▇▇▇▇, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE
AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH OF ▇▇▇▇▇▇
AND ▇▇▇▇▇▇▇▇ IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY
PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY ▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇.
13
Section 10.6 WAIVER OF FORECLOSURE DEFENSE. Borrower hereby waives any
defense Borrower might assert or have by reason of ▇▇▇▇▇▇'s failure to make any
tenant or lessee of the Property a party defendant in any foreclosure proceeding
or action instituted by ▇▇▇▇▇▇.
ARTICLE XI
EXCULPATION
The provisions of Article 15 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 XII
NOTICES
All notices or other written communications hereunder shall be delivered in
accordance with Article 16 of the Loan Agreement.
All notices to Trustee shall be sent to its address set forth on Page 1 of
this Security Instrument. A copy shall be sent to:
Bank of America, N.A.
c/o Capital Markets Servicing Group
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇-706-06-42
Los Angeles, California 90071
ARTICLE XIII
APPLICABLE LAW
Section 13.1 GOVERNING LAW. This Security Instrument shall be governed,
construed, applied and enforced in accordance with the laws of the state in
which the Property is located and applicable laws of the United States of
America.
Section 13.2 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.
14
ARTICLE XIV
DEFINITIONS
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 "Trustee" shall mean "Trustee and any
substitute Trustee of the estates, properties, powers, trusts and rights
conferred upon Trustee pursuant to this Security Instrument, 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.
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.1 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 15.2 SUCCESSORS AND ASSIGNS. This Security Instrument shall be
binding upon and inure to the benefit of ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ and their
respective successors and assigns forever.
Section 15.3 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 15.4 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 15.5 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 15.6 ENTIRE AGREEMENT. This Security Instrument and the other Loan
Documents contain the entire agreement of the parties hereto and thereto in
respect of the transactions contemplated hereby and thereby, and all prior
agreements among or between such
15
parties, whether oral or written between Borrower and Lender are superseded by
the terms of this Security Instrument and the other Loan Documents.
Section 15.7 LIMITATION ON ▇▇▇▇▇▇'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 XVI
STATUS OF BORROWER
Section 16.1 STATUS OF BORROWER. ▇▇▇▇▇▇▇▇'s exact legal name is correctly
set forth in the first paragraph of this Security Instrument and the signature
block at the end of this Security Instrument. Borrower is an organization of the
type specified in the first paragraph of this Security Instrument. Borrower is
incorporated in or organized under the laws of the state specified in the first
paragraph of this Security Instrument. ▇▇▇▇▇▇▇▇'s principal place of business
and chief executive office, and the place where ▇▇▇▇▇▇▇▇ keeps its books and
records, including recorded data of any kind or nature, regardless of the medium
or recording, including software, writings, plans, specifications and
schematics, has been for the preceding four months (or, if less, the entire
period of the existence of Borrower) the address of Borrower set forth on the
first page of this Security Instrument. ▇▇▇▇▇▇▇▇'s organizational identification
number, if any, assigned by the state of incorporation or organization is
correctly set forth on the first page of the UCC Financing Statements. Borrower
will not change or permit to be changed (a) Borrower's name, (b) Borrower's
identity (including its trade name or names), (c) Borrower's principal place of
business set forth on the first page of this Security Instrument, (d) the
corporate, partnership or other organizational structure of Borrower, (e)
Borrower's state of organization, or (f) Borrower's organizational 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, without first obtaining the prior written consent of
▇▇▇▇▇▇. If Borrower does not now have an organizational identification number
and later obtains one, Borrower promptly shall notify the Lender of such
organizational identification number.
ARTICLE XVII
DEED OF TRUST PROVISIONS
Section 17.1 CONCERNING THE 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
16
and agrees to accept reasonable compensation, in lieu thereof, for any services
rendered by Trustee in accordance with the terms hereof. Trustee may resign at
any time upon giving thirty (30) days' notice to ▇▇▇▇▇▇▇▇ and to Lender. 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 17.2 TRUSTEE'S FEES. Borrower shall pay all 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 17.3 CERTAIN RIGHTS. With the approval of ▇▇▇▇▇▇, Trustee shall
have the right to take any and all of the following actions: (i) to select,
employ, and advise with counsel (who may be, but need not be, counsel for
Lender) upon any matters arising hereunder, including the preparation,
execution, and interpretation of the Note, this Security Instrument or the Other
Security Documents, and shall be fully protected in relying as to legal matters
on the advice of counsel, (ii) to execute any of the trusts and powers hereof
and to perform any duty hereunder either directly or through his/her agents or
attorneys, (iii) to select and employ, in and about the execution of his/her
duties hereunder, suitable accountants, engineers and other experts, agents and
attorneys-in-fact, either corporate or individual, not regularly in the employ
of Trustee, and Trustee shall not be answerable for any act, default,
negligence, or misconduct of any such accountant, engineer or other expert,
agent or attorney-in-fact, if selected with reasonable care, or for any error of
judgment or act done by Trustee in good faith, or be otherwise responsible or
accountable under any circumstances whatsoever, except for Trustee's gross
negligence or bad faith, and (iv) any and all other lawful action as Lender may
instruct Trustee to take to protect or enforce ▇▇▇▇▇▇'s rights hereunder.
Trustee shall not be personally liable in case of entry by Trustee, or anyone
entering by virtue of the powers herein granted to Trustee, upon the Property
for debts contracted for or liability or damages incurred in the management or
operation of the Property, Trustee shall have the right to rely on any
instrument, document, or signature authorizing or supporting an action taken or
proposed to be taken by Trustee hereunder, believed by Trustee in good faith to
be genuine. Trustee shall be entitled to reimbursement for actual expenses
incurred by Trustee in the performance of ▇▇▇▇▇▇▇'s duties hereunder and to
reasonable compensation for such of Trustee's services hereunder as shall be
rendered.
Section 17.4 RETENTION OF MONEY. All moneys received by Trustee shall,
until used or applied as herein provided, be held in trust for the purposes for
which they were received, but need not be segregated in any manner from any
other moneys (except to the extent required by applicable law) and Trustee shall
be under no liability for interest on any moneys received by Trustee hereunder,
17
Section 17.5 PERFECTION OF APPOINTMENT. Should any deed, conveyance, or
instrument of any nature be required from Borrower by any Trustee or substitute
trustee to more fully and certainly vest in and confirm to Trustee or substitute
trustee such estates rights, powers, and duties, then, upon request by Trustee
or substitute trustee, any and all such deeds, conveyances and instruments shall
be made, executed, acknowledged, and delivered and shall be caused to be
recorded and/or filed by Borrower.
Section 17.6 SUCCESSION INSTRUMENTS. Any substitute trustee appointed
pursuant to any of the provisions hereof shall, without any further act, deed,
or conveyance, become vested with all the estates, properties, rights, powers,
and trusts of its or his/her predecessor in the rights hereunder with like
effect as if originally named as Trustee herein; but nevertheless, upon the
written request of Lender or of the substitute trustee, Trustee ceasing to act
shall execute and deliver any instrument transferring to such substitute
trustee, upon the trusts herein expressed, all the estates, properties, rights,
powers, and trusts of Trustee so ceasing to act, and shall duly assign, transfer
and deliver any of the property and moneys held by such Trustee to the
substitute trustee so appointed in Trustee's place.
ARTICLE XVIII
STATE SPECIFIC PROVISIONS
Section 18.1 PRINCIPLES OF CONSTRUCTION. In the event of any
inconsistencies between the terms and conditions of this Article 18 and the
terms and conditions of this Security Instrument, the terms and conditions of
this Article 18 shall control and be binding.
Section 18.2 CERTAIN REMEDIES. With respect to the Property which is
located in the State of Arizona, notwithstanding anything contained herein to
the contrary, Lender shall have all of the remedies provided under Arizona
Revised Statutes Section33-702.
[NO FURTHER TEXT ON THIS PAGE]
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IN WITNESS WHEREOF, this Security Instrument has been executed by
▇▇▇▇▇▇▇▇ as of the day and year first above written.
INLAND WESTERN PHOENIX, L.L.C.,
a Delaware limited liability company
By: INLAND WESTERN RETAIL REAL
ESTATE TRUST, INC., a Maryland
corporation, its Sole Member
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Title: Asst. Secretary
--------------------------
ACKNOWLEDGEMENT
STATE OF Illinois,
Cook COUNTY, ss:
On this 28th day of May 2004, personally appeared before me ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
the signer(s) of the foregoing instrument, who, being by me duly sworn, did say,
that he is the Asst. Secretary of Inland Western Retail Real Estate Trust, Inc.,
a Maryland corporation, the sole member of Inland Western Phoenix, L.L.C., a
Delaware limited liability company, and that said instrument was signed in
behalf of said limited liability company, and acknowledged to me that said
limited liability company executed the same.
My commission expires: 11-14-2004 /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
--------------------------------
Notary Public
(Notarial Seal)
"OFFICIAL SEAL"
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
NOTARY PUBLIC STATE OF ILLINOIS
My Commission Expires 11/14/2004
EXHIBIT A
(Legal Description)