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HomeMy WebLinkAbout1998 - Deed of Trust, Assignment of Rents and Leases, and Security Agreement - Container Properties / Key Banik / Chicago Title Insurance Company - 98071308189807130818 After Recording Mail To: • KEYBANK NATIONAL ASSOCIATION Washington Corporate Banking Mailcode WA- 31- 105871 700 Fifth Avenue, 48th Floor Seattle, WA 98104 -0090 Attn: Steven J. Barker Loan Nos. 3113556721 -9001 and 3113556721 -9002 OOtirCO S?e'C9 DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES AND SECURITY AGREEMENT (FIXTURE FILING) CHICAGO TITLE INS. CO. REF# 'tV472 4, li I on a8 GRANTOR: CONTAINER PROPERTIES L.L.C., a Washington limited liability company Coversheet Recording Information: GRANTEE: KEYBANK NATIONAL ASSOCIATION, a national banking association GRANTEE CHICAGO TITLE INSURANCE COMPANY (trustee) LEGAL Portions of Lots 1 -2, The Meadows Tracts, unrecorded DESCRIPTION The complete legal description is on Exhibit A. ASSESSOR'S PROPERTY TAX PARCEL ACCOUNT NUMBER: 542260-0010.01 THIS DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES, AND SECURITY AGREEMENT ( "Dad of Trust") is made this 10th day of July, 1998, by Grantor, CONTAINER PROPERTIES LLC., a Washington limited liability company, ( "Borrower") whose mailing address is c/o NW Container Services, P.O. Box 1730, Sumner, WA 98390, attn. Mark W. Robison. The Trustee is CHICAGO TITLE INSURANCE COMPANY, whose mailing address is 1800 Columbia Center, 701 Fifth Avenue, Seattle, Washington 98104. The Beneficiary is KEYBANK NATIONAL - 1 . DEED OF TRUST • RECEIVED SEP 1 DEVELOPMENT OOMOAC • • ASSOCIATION, a national banking association, ( "Lender") whose mailing address is WA Corporate Banking, Mailcode WA- 31- ]0.4871, 700 Fifth Avenue, 48th Floor, Seattle, WA 98104 -0090. For purposes of Article 9 of the Uniform Commercial Code (RCW 62A.9), this Deed of Trust constitutes a Security Agreement with the Borrower being the Debtor and the Lender being the Secured Party. This Deed of Trust also constitutes a Financing Statement filed as a fixture filing pursuant to Article 9 of the Uniform Commercial Code, RCW 62A.9- 402(6). In consideration of the Loan described below, Borrower hereby irrevocably GRANTS. TRANSFERS. CONVEYS and ASSIGNS to Trustee, IN TRUST, WITH POWER OF SALE. all of Borrower's present and future estate. right, title, claim, and interest, either in law or in equity, in and to the following property ( "Property "): (a) The real property described on Exhibit A. all rights to the alleys, streets and roads adjoining or abutting the real property. all easements, access, air and development rights, minerals and oil, gas and other hydrocarbon substances, water, water rights and water stock, and all other rights, hereditaments, privileges, and appurtenances now or hereafter belonging or in any way appertaining to such real pmrerty ( "Land"). (b) All buildings, improvements and tenements now or hereafter located on the Land ( "Improannents "), including without limitation all fixtures and articles of pmpert• attached to, or used or adapted for use in the ownership, development, operation or maintenance of the Land and Improvements (whether such items are leased, owned. or subject to any title- retaining or security instrument); all heating, cooling, air - conditioning, ventilating, refrigerating, plumbing, generating, power, lighting, laundry, maintenance, incinerating, lifting, cleaning, fire prevention and extinguishing, security and access control, cooking, gas, electric and communication fixtures, equipment and apparatus; all engines, motors, conduits, pipes, pumps, tanks, ducts, compressors, boilers, water heaters and furnaces; all ranges, stoves, disposals, refrigerators and other appliances; all escalators and elevators, baths, sinks, all cabinets, partitions, mantels, built -in mirrors, window shades, blinds, screens, awnings, storm doors, windows and sash; all carpeting, underpadding. floor covering. panelling, and draperies; all furnishings of public spaces, halls and lobbies; and all shrubbery and plants. All such items shall be deemed part of the Land and not severable wholly or in part without material injury to the freehold. (c) All of the present and future rents, revenues, issues, profits and income of the land and Improvements, and all present and future leases and other agreements for the occupancy or use of all or any part of the Land and Improvements, including without limitation all cash or security deposits, advance rentals and deposits or payments of similar nature, and all guarantees of tenants' or occupants' performance under such leases and agreements. - 2 - DEED OF TRUST (d) All tangible and intangible personal property now or hereafter used or acquired in connection with the ownership, development, operation or maintenance of the Land and Improvements, including without limitation all furniture, furnishings, equipment, supplies, and other goods, wherever located whether in the possession of Borrower, warehousemen, bailee, or any other person; all site plans, plats, architectural plans, specifications, work drawings, surveys, engineering reports, test borings, market surveys, and other similar work products all permits, licenses, franchises, and trade names; all contract rights (including without limitation all architectural, construction, engineering, consulting, and management contracts, all insurance policies, and all performance, payment, completion and other surety bonds); and all claims, causes of action, warranties, accounts receivable, escrow accounts, insurance policies, deposits (including tax, insurance and other reserves), instruments, documents of title, general intangibles, and business records. (e) All present and future monetary deposits given to any public or private utility with respect to utility services furnished to the Land or the Improvements. (f) All proceeds (including claims and demands therefor) of the conversion. voluntary or involuntary, of any of the foregoing into cash or liquidated claims, including without limitation the insurance proceeds and condemnation awards. (g) All proceeds of the foregoing. TO SECURE THE FOLLOWING ('Secured Obligations "): (1) Payment of the aggregate sum of FIVE MILLION SEVEN HUNDRED FIFTY THOUSAND and no /100 DOLLARS ($5,750,000), with interest thereon, according to the terms and provisions of two promissory notes ( "Note A" in the principal amount of 54,750,000 and "Note B" in the principal amount of S1,000,000, together the "Note") of even date, made by Borrower and payable to Lender. (2) Payment of all other sums which are or may become owing under the Loan Documents. • (3) Performance of all other obligations under the Loan Documents. (4) Any and all obligations of Borrower to Lender under or related to any Rate Swap Transaction entered into between Lender and Borrower, including without limitation any payments on Early Termination under any Swap Agreement or Confirmation. Capitalized terms used in this subsection (4) are defined in the 1991 1SDA Definitions, published by the International Swap Dealers Association Inc. As used herein, the term "Loan Documents" means Note A, Note B, this Deed of Trust, any Loan Agreement ( "Loan Agreement") between Lender and Borrower of even date herewith, all related documents and instruments (except the Indemnity Agreement), - 3 - DEED OF TRUST 1.1 Warranty of Title. Borrower warrants, represents, covenants and agrees as follows: (a) Borrower holds marketable title to the Property with the full right and power to grant, convey and assign the Property. (b) The Property is free from hens, encumbrances, exceptions and other charges of any kind whatsoever, except for the Permitted Exceptions. (c) No other lien Ur' encumbrance. whether superior or inferior to this Deed of Trust, shall be created or suffered to be created by Borrower without the prior written consent of Lender. (d) No default on the part of Borrower or any other person exists under any of the Permitted Exceptions and all of the Permitted Exceptions are in full force and effect and in good standing, without modification. (e) Complete and current copies of the Permitted Exceptions have been furnished to Lender, and none of them have been or will be modified by Borrower without Lender's prior written consent. (f) Borrower shall fully comply with all the terms of the Permitted Exceptions and shall deliver to Lender a copy of all notices delivered in connection with the Permitted Exceptions. (g) Lender has the right to contact the other parties to the Permitted Exceptions to confirm the status thereof, and Borrower shall, from time to time, at the request of Lender, request of such parties a certificate confirming such information regarding the Permitted Exceptions as Lender may request. (h) Borrower shall forever warrant and defend the Property unto Lender against all claims and demands of any other person whatsoever, subject only to non - delinquent taxes and assessments and the Permitted Exceptions. As used in this Deed of Trust, 'Permitted Exceptions" means the exceptions to title to the Property set out in Schedule B of the policy of title insurance issued to Lender with respect to this Deed of Trust 1.2 Non•Aericultural Use. Borrower represents and warrants to Lender that the Property is not used principally for agricultural or farming purposes. (a) Representations and Warranties. Borrower represents and warrants to Lender, to the best of its knowledge after due inquiry and inspection, and except as disclosed in the Administrative Order on Consent entered by the United States Environmental Protection Agency on May 6, 1993, U.S. EPA Docket No. 109141-20- 3006(h) (the "EPA Order") against Rhone- Poulenc, Inc„ and Rhone- Poulenc Specialty Chemicals, LP., that (i) no asbestos has ever been used in the construction, repair or maintenance of any Improvements; (ii) no Hazardous Substance is currently being generated, processed, stored, transported, handled or disposed of, on, under or in the - 4 - DEED OF TRUST oornouroro+ Property, except in accordance with all applicable laws, (iii) neither Borrower nor any other person or entity has ever caused or permitted any Hazardous Substance to be generated, processed, stored, transported handled or disposed of on or under the Property, except in compliance with all applicable laws, (iv) there is no actual or alleged violation with respect to the Property of any federal, state or local statute, ordinance, rule, regulation or other law relating to Hazardous Substances, and (v) there is no action or proceeding pending or threatened before or appealable from any court, quasi - judicial body or administrative agency relating to Hazardous Substances affecting or alleged to be affecting the Property. (b) Covenant. Borrower covenants and agrees that Hazardous Substances shall not be generated, processed, stored, transported, handled or disposed of on the Property by any person or entity, except in accordance with all applicable laws and the EPA Order. (c) Definition. "Hazardous Substance' means any substance which now or hereafter becomes regulated under any federal, state or local statute, ordinance, rule, regulation or other law relating to environmental protection contamination or cleanup. (d) Notification; Cleanup. Borrower shall immediately notify Lender if Borrower becomes aware of (i) any Hazardous Substance problem or liability with respect to the Property, (ii) any actual or alleged violation with respect to the Property of any federal, state or local statute, ordinance, rule, regulation or other law relating to Hazardous Substances, or (iii) any lien or action with respect to any of the foregoing. Borrower shall, at its sole expense, take all actions as may be necessary or advisable for the cleanup of Hazardous Substances with respect to the Property, including without limitation, all removal, containment and remedial actions in accordance with all applicable laws and in all events in a manner satisfactory to Lender, and shall further pay or cause to be paid all cleanup, administrative and enforcement costs of governmental agencies if obligated to do so by contract or by law. (e) Right of Entry. Lender is hereby authorized to enter the Property, including the interior of any structure, at reasonable times, and after reasonable notice, for the purpose of inspecting the Property to determine Borrower's compliance with this paragraph. ARTICLE II BORROWER'S COVENANTS 2.1 Payment and Performance of Secured Obligations. Borrower shall pay when due all sums which are now or which may become owing under the Note, and shall pay and perform all other Secured Obligations in accordance with their terms. - 5 - DEED OF TRUST • 2.2 Payment of Taxes, Utilities, Liens and Charges. (a) Taxes and Assessments. Except as the same may otherwise be paid under Article Ill, Borrower shall pay when due directly to the payee thereof all taxes and assessments (including without limitation, non- governmental levies or assessments such as maintenance charges, owner association dues or charges, or fees, levies or charges resulting from covenants, conditions or restrictions) levied, assessed or charged against or with respect to the Property or this Deed of Trust Upon request, Borrower shall promptly furnish to Lender all notices of amounts due under this subparagraph and all receipts evidencing such payments. (b) Utilities. Borrower shall pay when due all utility charges and assessments for services furnished the Property. (c) Labor and Materials. Borrower shall pay when due the claims of all persons supplying labor or materials to or in connection with the Property. (d) Liens and Charges. Borrower shall promptly discharge any lien, encumbrance, or other charge, whether superior or inferior to this Deed of Trust, which may be claimed against the Property; provided that Borrower shall have the right to contest the amount or validity in whole or In part of any lien, encumbrance or other charge against the Property by appropriate proceedings conducted in good faith and with due diligence, in which event Borrower, upon prior written notice to Lender, may postpone or defer payment of such lien, encumbrance or other charge so long as (i) such proceedings shall operate to prevent the collection of the lien, encumbrance or other charge; (ii) neither the Property nor any part thereof will, by reason of such postponement or deferment, be in danger of being forfeited or lost and (iii) Borrower, before the date such lien, encumbrance or other charge becomes delinquent, gives such reasonable security as may be requested by Lender to ensure payment thereof and prevent any forfeiture or loss of the Property or any part thereof. (e) Taxes. Assessments and Other Charges Imposed on Lender. If, at any time after the date of this Deed of Trust, any law is enacted or changed (including any interpretation thereof) which subjects Lender to any increase in any tax (except federal income taxes), assessment, or other charge, in any form measured by or based on any portion of the indebtedness secured by this Deed of Trust, Borrower shall pay such increased amount to Lender on demand; provided that if any such payment would be unlawful, Lender may declare all accrued interest and the entire principal ba lance of the Note immediately due and payable. (a) Coverages Required. Borrower shall keep the following insurance coverages in effect with respect to the Property: OOrMwCONrn 2.3 Insurance. - 6 - PEED OF TRUST • 00TIMMON I PM • (1) Insurance against Toss by fire and the hazards now or hereafter embraced by the standard "All Risk" form of insurance, in an amount equal at all times to the full insurable value of the improvements. All such insurance coverage shall contain a "replacement cost indorsement" without reduction for depreciation and shall also contain Toss of rents and /or business interruption insurance coverage, a fluctuating value indorsement with a waiver of the co-insurance clause (or an agreed amount indorsement with an inflation guard indorsement), and shall contain such other indorsements as Lender may reasonably inquest. All such indorsements shall be in form and substance satisfactory to Lender. (2) Comprehensive public liability insurance against claims for tx/dih injury. death or property damage occurring on, in or about the Property in amounts and on terms acceptable to the Lender. (3) Flood insurance in an amount satisfactory to Lender and on terms satisfactory to Lender if the Land is located in a designated flood hazard area. (9) Rental and /or business interruption insurance for a period of not Tess than twelve months in amounts and otherwise on terms satisfactory to Lender_ (5) Insurance against such similar or other hazards, casualties, Liabilities and contingencies, in such forms and amounts, as Lender may from time to time reasonably require. (h) Policies. Each insurance policy shall be with a company and in a form acceptable to Lender. Each hazard insurance policy shall include a Form 438BFU or 'equivalent mortgagee indorsement in favor of Lender. Each liability insurance policy shall name Lender as an additional insured. AU required policies will provide for at least ten (10) days written notice to Lender prior to the effective date of any cancellation or material amendment, which term shall include any reduction in the scope or limits of coverage. Borrower shall furnish to Lender the original of each required insurance policy, or a certified copy thereof together with a certificate of insurance setting forth the coverage, the limits of liability, the carrier, the policy number and the expiration date. As security for the Secured Obligations. Borrower hereby assigns to Lender all required insurance policies, together with all proceeds thereof, rights thereto and all unearned premiums returnable upon cancellation. (c) Payment: Renewals. Borrower shall promptly furnish to Lender all renewal notices relating to insurance policies. Except as the same may otherwise be paid under Article III, Borrower shall pay all premiums on insurance policies directly to the carrier. At least thirty (30) days prior to the expiration date of each such policy, Borrower shall furnish to Lender a renewal policy in a form acceptable to Lender, together with evidence that the renewal premium has been paid. - 7 - DEED OF TRUST • (J) Application of Insurance Proceeds. In the event of any loss. Borrower shall give prompt written notice thereof to the insurance carrier and Lender. Borrower hereby authorizes Lender as Borrower's attorney -in -fact to make proof of loss, to adjust and compromise any claim. to commence, appear in and prosecute, in Lender's or Borrower's name, any action relating to any claim, and to collect and receive insurance proceeds; eds; provided, however, that Lender shall have no obligation to do so. Lender shall apple anv insurance proceeds received by it hereunder first to the payment of the costs and expenses incurred in the collection of the proceeds and then, in its absolute discretion and without regard to the adequacy of Its security, lo: (1) The payment of the Secured Obligations, whether then due and payable or not. Any such application of proceeds to principal on the Note shall be without the imposition of any prepayment fee otherwise payable under the Note, but shall not extend or postpone the due dates of the installment payments under the Note, or change the amounts thereof; or (2) The reimbursement of Borrower, under Lender's prescribed disbursement control procedures. for the cost of restoration or repair of the Property. Lender may, at its option. condition the reimbursement on Lenders approval of the plans and specifications of the reconstruction, contractor's cost estimates, architect's certificates, waivers of liens, swum statements of mechanics and materialmen, and such other evidence of costs, percentage completion of construction, application of payments and satisfaction of Liens as Lender may reasonably require. Except to the extent that insurance proceeds are applied to payment of the Secured Obligations, nothing herein contained shall be deemed to excuse Borrower from restoring, repairing or maintaining the Property as provided in paragraph 2.4. regardless 4 whether or not there are insurance proceeds available or whether any such proceeds are sufficient in amount. (e) Transfer of Title. If the Property is sold pursuant to Article IX or if Lender otherwise acquires title to the Property, Lender shall have all of the right, title and interest of Borrower in and to any insurance policies and unearned premiums thereon and in and to the proceeds resulting frum any damage to the Property prior to such sale or acquisition. 2.4 Preservation and Maintenance of Property; Right of Entry. (a) Preservation and Maintenance. Borrower represents and warrants that the Improvements are free from damage causes: by fire or other casualty. Burrower shall (i) not commit or suffer any waste or permit any impairment or deterioration of the Property, (ii) not abandon the Property, (iii) restore or repair promptly and in a good and workmanlike manner all or any part of the Property to the equivalent of its original condition, or such other condition as Lender may approve in writing, in the event of any damage, injury nr Loss thereto, whether or not insurance proceeds are available to cover W � MN'CO,l10700 - 8 - DEED OF TRUST 00T(MACOMr10109 2.7 Condemnation. in whole or in part the costs of such restoration or repair, (iv) keep the Property, including improvements, fixtures, equipment, machinery and appliances thereon, in good condition and repair and shall replace fixtures, equipment, machinery and appliances of the Property when necessary to keep such items in good condition and repair, and (v) generally operate and maintain the Property in a commercially reasonable manner. (b) Alterations. None of the Improvements shall be structurally altered, removed or demolished, in whole or in part, without Lender's prior written consent, nor shall any fixture or chattel covered by this Deed of Trust and adapted to the use and enjoyment of the Property he removed at any time without like consent unless actually replaced by an article of equal suitability which is owned by Borrower free and clear of any lien or security interest. (c) Right of Entry. Lender is hereby authorized to enter the Property, including the interior of any structures, at reasonable times and after reasonable notice, for the purpose of inspecting the Property to determine Borrower's compliance with this paragraph. 23 Par dne. If any part of the automobile parking areas included within the Property is taken by condemnation, and before the parking areas are diminished for any other reason, Borrower shall take all actions as are necessary to provide parking facilities in kind, size and location to comply with all governmental zoning and other regulations and all leases. Before making any contract for substitute parking facilities, Borrower shall furnish to Lender satisfactory assurance of completion thereof free of liens and in conformity with all government zoning and other regulations. 2.6 Use of Property. Borrower represents and warrants to Lender that the Land, the Improvements, and their intended use by Borrower comply with all applicable restrictive covenants, zoning and subdivision laws, ordinances, regulations and legal requirements, building codes, flood disaster laws, applicable health and environmental laws and regulations and all other laws, ordinances, regulations, orders and legal requirements issued by any state, federal or municipal authority having or claiming jurisdiction over the Property. Borrower shall comply with all laws, ordinances, regulations and requirements of any governmental body, and all other covenants, condition% and restrictions applicable to the Property and its intended use, and pay all fees and charges in connection therewith. Unless required by applicable law or unless Lender has otherwise agreed in writing, Borrower shall not allow changes in the use for which all or any part of the Property was intended at the time this Deed of Trust was executed. Borrower shall not initiate or acquiesce in a change in the zoning classification of the Property without Lender's prior written consent. (a) Proceedings. Borrower shall promptly notify Lender of any action or proceeding relating to any condemnation or other taking (including without limitation - 9 - DEED OF TRUST • OO111AVCOM11a109 ■ any change in the grade of the Property), whether direct or indirect, of the Property or part thereof or interest therein, and Borrower shall appear in and prosecute any such action or proceeding unless otherwise directed by Lender in writing. Borrower authorizes Lender, at Lender's option, as attorney -in -fact for Borrower, to commence, appear in and prosecute, in Lender's or Borrower's name, any action or proceeding relating to any such condemnation or other taking, and to settle or compromise any claim in connection with such condemnation or other taking. All awards, payments, damages, direct. consequential and otherwise, claims, and proceeds thereof, in connection with any such condemnation or other taking, or for conveyances in lieu of condemnation, are hereby assigned to Lender, and all proceeds of any such awards, payments, damages or claims shall be paid to Lender. (b) Application of Condemnation Proceeds. Lender shall apply any such proceeds in the manner and upon the terms and conditions set forth in paragraph 2_1(d) relating to the application of insurance proceeds. 2.R Protection of Lender's Security. Borrower shall give notice to Lender of and shall appear m and defend any action or proceeding that may affect the Property, the interests of Lender or Trustee therein, or the rights or remedies of Lender or Trustee under the Loan Documents. If any such action or proceeding is commenced, or Borrower fails to perform any of the Secured Obligations, Lender or Trustee may, at their option, make any appearances, disburse any sums, make any entries upon the Property, and take any actions as may be necessary or desirable to (i) protect or enforce the security of this Deed of Trust, (ii) remedy Borrower's failure to perform the Secured Obligations (without waiving such default by Borrower), or (iii) otherwise protect Lender's or Trustee's interests. Borrower shall pay all losses, damages, fees, costs, and expenses incurred by Lender and Trustee in taking such actions: including without limitation reasonable legal fees. 2.9 Reimbursement of Lender's and Trustee's Expenses. All amounts disbursed by Lender and Trustee pursuant to paragraph 2.8 or any other provision of this Deed of Trust or the other Loan Documents, with interest thereon at the default rate provided in the Note from the date of disbursement until repaid, shall constitute a Secured Obligation. All such amounts shall be immediately due and payable and bear interest from the date of disbursement at the lesser of the default rate under the Note, or the maximum rate permitted by law. 2.10 Books and Records. Borrower shall keep and maintain at Borrower's address stated above, or such other place as Lender may approve in writing, books of account and records adequate to reflect correctly the results of operation of the Property and copies of all written contracts, leases and other documents affecting the Property. Such books, records, contracts, leases and other documents shall be subject to examination, inspection and copying at any reasonable time by Lender. Borrower shall furnish to Lender, within twenty (20) days after Lender's request therefor, the following documents, each certified to Lender by Borrower as being true, correct and complete; -10 - DEED OF TRUST oortNwc mean~ ARTICLE 111 RESERVES 3.1 Deposits. U required by Lender, Borrower shall, at the time of making each monthly installment payment under the Note, deposit with Lender a sum, as estimated by lender, equal to (i) the taxes and special assessments next due on the Property, and (ii) the premiums that will next become due on insurance policies as may be required under this Deed of Trust, less all sums already deposited therefor, divided by the number of months to elapse before two (2) months prior to the date when such taxes, special assessments and premiums will become delinquent. Lender may require Borrower to deposit with [.ender, in advance, such other sums for other taxes, assessments, premiums, charges and impositions in connection with Borrower or the Property as lender reasonably deems necessary to protect Lender's interests (`Other I►npositions "). Such sums for Other Impositions shall be deposited in a lump sum or in periodic installments, at Lender's option. If required by Lender, Borrower shall promptly deliver to Lender all bills and notices with respect to any taxes, assessments, premiums and Other Impositions. Unless Borrower and Lender otherwise agree in writing, Lender shall not be required to pay Borrower any interest, earnings or profits on any sums .lepnsite'd with Lender. All sums deposited with Lender under this paragraph 3.1 are hereby pledged as security for the Secured Obligations. (a) copies of all leases and other agreements for occupancy or use of all or any portion of the Property, (h) a rent roll for the Property, showing the name of each tenant, and for each tenant, the suite occupied, the number of square feet rented, the lease expiration date, the rent payable, the date through which rent has been paid, the amount of any security deposit, and the number and term of any renewal options, (c) copies of the most recent real and personal property tax statements for the Property, and (d) copies of the most recent statements for the insurance coverage maintained pursuant to this Deed of Trust. 2.11 Operating and Financial Statements; Tax Returns. Borrower shall provide to Lender within sixty (60) days after the end of each calendar year, a detailed statement of income and expenses of the Property for the prior year and current financial statements of Borrower and each guarantor. if required by Lender, Borrower shall also provide monthly operating statements within thirty (30) days after the end of each calendar month. Borrower and each guarantor shall provide updated financial statements within twenty (20) days after receipt of Lender's written request. The operating statements and financial statements shall be certified by Borrower or guarantor. and. if required by Lender, compiled, reviewed or audited by an independent certified public accountant in accordance with generally accepted accounting principles consistently applied. Within ten (10) days after filing, Borrower shall provide Lender with copies of the federal income tax returns of Borrower and each guarantor. -1 t - DEED OF TRUST oouwvcarnma • 3.2 Application of Deposits. All such deposited sums shall be held by Lender and applied in such order as Lender elects to pay such taxes, assessments, premiums and Other Impositions or, upon any Event of Default. may be applied in whole or in part, to the Secured Obligations. The arrangement provided for in this Article III is solely for the added protection of Lender and entails no responsibility on Lender's part beyond the allowing of due credit, without interest, for the sums actually received by it. Upon any assignment of this Deed of Trust by Lender, any funds on hand shall be turned over to the assignee and any responsibility of Lender with respect thereto shall terminate. Each transfer of the Property in accordance with Article IV below shall automatically transfer to the transferee all rights of Borrower with respect to any funds deposited hereunder. Upon payment in full of the Secured Obligations, Lender shall promptly refund to Borrower the remaining balance of any deposits then held by Lender. 3.3 Adjustments to Deposits. if the total deposits held by Lender exceed the amount deemed necessary by Lender to provide for the payment of such taxes, assessments, premiums and Other Impositions, such excess shall, provided there is no Event of Default or any event which would constitute an Event of Default if not cured within the time allowed, he credited by Lender on the next due installment or installments of such deposits. If at any time the total deposits held by Lender are less than the amount deemed necessary by l.7nder to provide for the payment of such taxes, assessments, premiums and Other Impositions, Borrower shall promptly deposit the deficiency with Lender after receipt of written demand from Lender. 3.4 Conditional Waiver. Notwithstanding the foregoing, Lender shall not require the payment of reserves as provided in this Article until a delinquency occurs in the payment of such taxes, assessments, premium and Other Impositions, or until the occurrence of an Event of Default. ARTICLE IV RESTRICTIONS ON TRANSFER OR ENCUMBRANCE Neither the Property nor any part thereof or interest therein shall be encumbered, sold (by contract or otherwise), conveyed, leased (except as provided in Article VI), or otherwise transferred by Borrower; nor shall there be any change in (i) the ownership or control of any of Borrower's stock if Borrower is a corporation, (ii) the ownership or control of any membership interest in Borrower if Borrower is a limited liability company, (iii) the ownership or control of any general partnership interest in Borrower if Borrower is a partnership, (iv) the ownership or control of any beneficial interests in Borrower if Borrower is not otherwise a natural person or persons, or (v) the ownership or control of any stock, membership, any general partnership interest, or any other beneficial interest in any corporation, partnership or other entity that has an ownership interest in Burrower. Any such action without Lender's prior written consent shall be deemed to increase the risk of Lender, and shall constitute an Event of Default if not corrected within five (5) days after Lender's delivery of written demand to Borrower. -12 - DEED OF TRUST • opn.r,canDm Lender may, in its sole discretion, consent to any such action subject to such terms and conditions as Lender may require, including without limitation the payment of a transfer review fee, an assumption fee of one percent (1 %) of the principal balance of the Note, and an increase in the interest rate of the Note. ARTICLE V UNIFORM COMMERCIAL CODE SECURITY AGREEMENT 5.1 Grant to Lender. This Deed of Trust constitutes a security agreement pursuant to the Uniform Commercial Code with respect to: (a) Any of the Property which, under applicable law, is not real property or effectively made part of the real property by the provisions of this Deed of Trust; and (b) Any and all other property now or hereafter described on any Uniform Commercial Code Financing Statement naming Borrower as Debtor and Lender as Secured Party and affecting property in any way connected with the use and enjoyment of the Property (any and all such other property constituting "Property" for purposes of this Deed of Trust); and Borrower hereby grants Lender a security interest in all property described in clauses (a) and (b) above as security for the Secured Obligations. Borrower and Lender agree, however, that neither the foregoing grant of a security interest nor the filing of any such financing statement shall be construed as limiting the parties' stated intention that everything used in connection with the production of income from the Property, or adapted for use therein, or which is described or reflected in this Deed of Trust, is and at all times shall he regarded as part of the Land. 5.2 Lender's Rights and Remedies. With respect to the Property subject to the foregoing security interest, Lender shall have all of the rights and remedies (i) of a secured party under the Uniform Commercial Code, (ii) provided herein, including without limitation the right to cause such Property to be sold by Trustee under the power of sale granted by this Deed of Trust, and (iii) provided by law. In exercising its remedies, Lender may proceed against the items of real property and any items of personal property separately or together and in any order whatsoever, without in any way affecting the availability of Lender's remedies. Upon demand by Lender following an Event of Default hereunder, Borrower shall assemble any items of personal property and make them available to Lender at the Land. Lender shall give Borrower at least five (5) days' prior written notice of the time and place of any public sale or other disposition of such Property or of the time of or after which any private sale or any other intended disposition is to be made. Any person permitted by law to purchase at any such sale may do so. Such Property may be sold at any one or more public or private sales as permitted by applicable law. -13 - DEED OF TRUST • , 6.1 Assignment of Rents and Leases. As security for the Secured Obligations, Borrower assigns and transfers to Lender and grants Lender a security interest in and to all right, title and interest of Borrower in and to: (a) any and all present and future leases, subleases, and other agreements for the occupancy or use of all or any part of the Property, and any and all extensions, renewals and replacements thereof ( "Leases"): (h) all cash or security deposits, advance rentals and deposits of a similar nature under the Leases; (c) any and all guarantees of tenants' or occupants' performances under any and all Leases; and (d) all rents. issues, profits and revenues ( "Rents") now due or which mar become due or to which Borrower may now or shall hereafter become entitled or mat• demand or claim (including Rents coming due during any redemption period). arising or issuing from or out of any and all Leases, including without limitation minimum, additional, percentage and deficiency rents and liquidated damages. 6.2 Collection of Rents. Prior to any Event of Default hereunder, Borrower shall have a license to, and shall, collect and receive all Rents of the Property as trustee for the benefit of Lender and Borrower, apply the Rents so collected first to the payment of taxes, assessments and other charges on the Property prior to delinquency, second to the cost of insurance, maintenance and repairs required by the terns of this Deed of Trust, third to the costs of discharging any obligation or liability of Borrower under the Leases, and fourth to the Secured Obligations, with the balance, if any, to the account of Borrower pmyided there is no Event of Default. Upon delivery of written notice by Lender to Borrower of an Event of Default hereunder and stating that Lender exercises its rights to the Rents, and without the necessity of Lender entering upon and taking and maintaining full control of the Property in person, by agent or by a court- appointed receiver, Lender shall immediately be entitled to possession of all Rents from the Property as the same become due and payable, including without limitation Rents then due and unpaid, and all such Rents shall immediately upon delivery of such notice be held by Borrower as trustee for the benefit of Lender only. Upon delivery of such written notice by Lender, Bormwer hereby agrees to direct each tenant or occupant of the Property to pay all Rents to Lender der on Lender's written demand therefor, without any liability on the part of said tenant ur occupant to inquire further as to the existence of an Event of Default by Borrower. Borrower hereby authorizes Lender as Borrower's attorney -in -fact to make such direction to tenants and occupants upon Borrowers failure to do so as required herein. Payments made to Lender by tenants or occupants shall, as to such tenants and occupants, be in discharge of the payors' obligations to Borrower. Lender may exercise, in Lender's or Borrower's name, all rights and remedies available to Borrower with respect to collection of Rents. Nothing herein contained shall be construed as obligating Lender to perform any of Borrower's obligations under any of the Leases. 6.3 Borrower's Representations and Warranties. Borrower hereby represents and warrants to Lender that Borrower has not executed and will not execute any other o tlw+tcgNtgtw ARTICLE VI ASSIGNMENT OF RENTS AND LEASES • - 14 - DEED OF TRUST CCIIIIMICOKTIO701 assignment of said Leases or Rents, that Borrower has not performed and will not perform any acts and has not executed and will not execute any instrument which would prevent Lender from exercising its rights under this Article VI, and that at the time of execution of this Deed of Trust there has been no anticipation or prepayment of any of the Rents of the Property for more than two (2) months prior to the due dates thereof. Borrower further represents and warrants to Lender that all existing Leases are in good standing and there is no default thereunder, whether by Borrower or lessee, and that, to Borrower's knowledge, there is no event or condition which, with notice or the passage of time or both, would be a default thereunder. Borrower shall execute and deliver to Lender such further assignments of Rents and Leases of the Property as Lender may from time to time request. 6.4 Leases of the Property. Borrower shall comply with and observe Borrower's obligations as landlord under all Leases and will do all that is necessary to preserve all Leases in force and free from any right of counterclaim, defense or setoff. At Lender's request. Borrower shall furnish Lender with executed copies of all Leases now existing or hereafter made and all Leases hereafter entered into shall use a form previously approved by Lender. All commercial Leases and tenants shall be subject to Lender's prior written approval, and shall specifically provide that the tenant attorns to any person succeeding to the interest of Borrower upon any foreclosure of this Deed of Trust or conveyance in lieu thereof. Such attornment shall be in such form as Lender may approve and shall provide that Tenant shall not have the right of set off or defense to payment of rents for any event or act that occurred prior to such successor obtaining title to Borrower's interest except to the extent such event or act is continuing at the time such successor obtains such title. Tenant shall also agree to execute such further evidences of attorrtment as Lender may from time to time request. Without Lender's written consent, Borrower shall not: (a) collect or accept payment of any Rents more than two months prior to the due dates thereof; (b) modify, surrender or terminate any commercial Lease; (c) waive, discharge, release or modify the obligations of any tenant or other occupant of the Property under any commercial Lease; or (d) request or consent to the subordination of any commercial Lease to any lien subordinate to this Deed of TrusL Any attempted action in violation of this paragraph 6.4 shall be null and void. Without in any way limiting the requirement of Lender's consent hereunder, any sums received by Borrower in consideration of any termination (or the release or discharge of any lessee), modification or amendment of any Lease shall be applied to reduce the outstanding Secured Obligations and any such sums received by Borrower shall be held in trust by Borrower for such purpose. 6.5 Lender in Possession; Appointment of Receiver. Upon any Event of Default, Lender may, in person, by agent or by a court- appointed receiver, regardless of the adequacy of Lender's security, enter upon and take and maintain full control of the Property in order to pertorm all acts necessary and appropriate for the operation and maintenance thereof in the same manner and to the same extent as Borrower could do the same, including without limitation the execution, enforcement, cancellation and - 15 • DEED OF TRUST • modification of Leases, the collection of all Rents of the Property, the removal and eviction of tenants and other occupants, the making of alterations and repairs to the Property, and the execution and termination of contracts providing for management or maintenance of the Property, all on such terms as are deemed best by Lender to protect the security of this Deed of Trust. From and after any Event of Default, if any owner of the Property shall occupy the Property or part thereof such owner shall pay to Lender in advance on the first day of each month a reasonable rental for the space so occupied, and upon failure so to do Lender shall be entitled to remove such owner from the Property by any appropriate action or proceedings. Following an Event of Default, Lender shall be entitled (regardless of the adequacy of Lender's security) to the appointment of a receiver, Borrower hereby consenting to the appointment of such receiver. Said receiver may serve without bond and may be Lender or an employee of Lender. The receiver shall have, in addition to all the rights and powers customarily given to and exercised by such receivers, all the rights and powers granted to Lender in this Article VI. Lender or the receiver shall be entitled to receive a reasonable fee for so managing the Property. 6.6 Application of Rents. All Rents collected subsequent to delivery of written notice by Lender to Borrower of an Event of Default shall be applied first to the costs, if any, of taking control of and managing the Property and collecting the Rents, including without limitation attorneys' fees, receiver's fees, premiums on receiver's bonds, costs of maintenance and repairs to the Property, premiums on insurance policies, taxes, assessments and other charges on the Property, and the costs of discharging any obligation or liability of Borrower under the Leases, and then to other Secured Obligations. Lender or the receiver shall be liable to account only for those Rents actually received. Lender shall not be liable to Borrower, anyone claiming under or through Borrower or anyone having an interest in the Property by reason of anything done or left undone by Lender under this Article. 6.7 Deficiencies. To the extent, if any, that the costs of taking control of and managing the Property, collecting the Rents, and discharging obligations and liabilities of Borrower under the Leases, exceed the Rents of the Property, the excess sums expended for such purposes, plus interest, shall constitute a Secured Obligation. Such excess sums shall be payable upon demand by Lender and shall bear interest from the date of disbursement at the lesser of the default rate under the Note, or the maximum rate permitted by law. 6.8 Lender Not Mortgagee in Possession. Nothing herein shall constitute Lender a "mortgagee in possession" prior to its actual entry upon and taking possession of the Property. Entry upon and taking possession by a receiver shall not constitute possession by Lender. 6.9 Enforcement Lender may enforce this assignment without first resorting to or exhausting any security or collateral for the Secured Obligations. oorn+w ONrnn+ - 16 - DEED OF TRUST ARTICLE VII LOAN AGREEMENT ARTICLE VIII EVENTS OF DEFAULT 8.1 Events of Default. Any one or more of the following is an "Event of Default": (a) Borrower fails to make any payment under the Note, this Deed of Trust, or any of the other Loan Documents within fifteen (15) days after the due date. (b) There is a default under any of the Permitted Exceptions, if not cured within any cure period given in the Permitted Exceptions. (c) There is an Event of Default as defined in any of the other Loan (d) Borrower fails to perform any other covenant, agreement or obligation under this Deed of Trust or any of the other Loan Documents, if not cured within the time allowed. If no cure period is otherwise specified for such default, the cure period shall be within thirty (30) days after Lender's delivery of written demand to -17 - DEED OF TRUST • • • Borrower, or if such cure cannot in Lender's opinion be completed within such thirty (30) day period, and Borrower commences the required cure within such thirty (30) day period and thereafter continues to cure with diligence, the cure period shat: be ninety (90) days after Lender's delivery of such written demand. (e) Borrower or any guarantor files a petition in bankruptcy or for an arrangement, reorganization or any other form of debtor relief; or the petition is filed against Borrower or any guarantor or any trustee of Borrower or any guarantor, and the petition is not dismissed within forty -five (45) days after filing. (f) A decree or order is entered for the appointment of a trustee, receiver or liquidator for Borrower or any guarantor or the property of Borrower or any guarantor, and such decree or order is not vacated within forty-five (45) days after the date of entry. (g) Borrower or any guarantor commences any proceeding for dissolution or liquidation; or any such proceeding is commenced against Borrower or any guarantor and the proceeding is not dismissed within forty-five (45) days after the date of commencement. (h) Borrower or any guarantor makes an assignment for the benefit of its creditors, or admits in writing its inability to pay its debts generally as they become due. (i) There is an attachment, execution or other judicial seizure of any property of Borrower or any guarantor and such seizure is not discharged within ten (]0) days. (j) Any representation or disclosure made to Lender by Borrower or any guarantor in connection with the loan evidenced by the Note proves to be materially false or misleading when made, whether or not that representation or disclosure is expressly set forth in the Loan Documents. (k) A default occurs under any other indebtedness now or hereafter owing to Lender on which Borrower or any guarantor is a maker or a guarantor, and such default is not cured within the applicable cure period, if any, under the instruments evidencing and securing such indebtedness. 8.2 Inapplicability of Cure Periods. All cure periods provided in this Deed of Trust ur the other Loan Documents shall be inapplicable if. in Lender's reasonable judgment. the default is not capable of being cured within the time allowed, or a delay in Lender's enforcement of its rights and remedies may result in a material impairment of its security. oO11)McoNTe109 - 18 - DEED OF TRUST 8.3 Form of Notice. At Lender's option, any written notice of default given to Borrower under paragraph 8.1 may be given in the form of a statutory notice of default under the Washington Deed of Trust Act or any other form as Lender may elect. 9.1 Acceleration Uvon Default; Additional Remedies. Upon any Event of Default. Lender may, at its option and without notice to or demand upon Borrower, exercise any one or more of the following actions: (h) Bring a court action to enforce the provisions of this Deed of Trust or any of the other Loan Documents. (d) Cause any or all of the Property to be sold under the power of sale granted by this Deed of Trust in any manner permitted by applicable law. (f) Exercise any or all of the other rights and remedies under this Deed of Trust and the other Loan Documents. (g) Exercise any other right or remedy available under law or in equity. 9.2 Prepayment Premium. If the Note provides for payment of a prepayment premium. such prepayment premium shall be payable by Borrower with respect to any voluntary or involuntary payment of principal under the Note before the maturity date stated in the Note, except as otherwise specifically provided in the Loan Documents. Borrower expressly agrees that any such principal payment made after an Event of Default shall require payment of the prepayment premium notwithstanding any acceleration of the Note by Lender. 9.3 Exercise of Power of Sale. For any sale under the power of sale granted M• this Deed of Trust, Lender or Trustee shall record and give all notices required by law and then, upon the expiration of such time as is required by law, Trustee may sell the Property upon any terms and conditions specified by Lender and permitted by applicable law. Trustee may postpone any sale by public announcement at the time and place noticed for the sale. H the Property includes several lots or parcels, Lender in its discretion may designate their order of sale or may elect to sell all of them as an entirety. The Property, real, personal and mixed, may be sold in one parcel. To the extent any of the Property sold by the Trustee is personal pro;+erty, then Trustee shall be acting as the 00 COwrpro! (a) (c) (e) • ARTICLE IX REMEDIES • Declare all the Secured Obligations immediately due and payable. Foreclose this Deed of Trust as a mortgage. Elect to exercise its rights with respect to the Leases and the Rents. .19 - DEED OF TRUST DOTIN/R'ANI ei • - 20 - DEED OF TRUST agent of the Lender in selling such Property. Any person permitted by law to do so may purchase at any sale. Upon any sale, Trustee will execute and deliver to the purchaser or purchasers a deed or deeds conveying the Property sold, but without any covenant or warranty, express or implied, and the recitals in the Trustee's deed showing that the sale was conducted in compliance with all the requirements of law shall be prima fade evidence of such compliance and conclusive evidence thereof in favor of bona fide purchasers and encumbrancers for value. 9.4 Application of Sale Proceeds. Except as may otherwise be required by law, the proceeds of any sale under this Deed of Trust shall be applied in the following priority: (a) Payment of the costs and expenses of the sale; including without limitation Trustee's fees, legal fees and disbursements, title charges and transfer taxes, and payment of all expenses, liabilities and advances of Trustee, together with interest on all advances made by Trustee from date of disbursement at the lesser of the default rate under the Note, or the maximum rate permitted by law. (b) Payment of all sums expended by Lender under the terms of this Deed of Trust and not yet repaid, together with interest on such sums from date of disbursement at the lesser of the default rate under the Note, or the maximum rate permitted by law. (c) Payment of all other Secured Obligations in any order that the Lender chooses. (dl The remainder, if any, to the person or persons legally entitled to it. 9.5 Waiver of Order of Sale and Marshalling. Lender shall have the right to determine the order in which any or all portions of the Secured Obligations are satisfied from the proceeds realized upon the exercise of any remedies provided herein. To the fullest extent permitted by law, Borrower, any party who consents to this Deed of Trust and any party who now or hereafter acquires a security interest in the Property and who has actual or constructive notice hereof, hereby waives any and all right to require marshalling of assets in connection with the exercise of any of the remedies permitted by applicable law or provided herein, or to direct the order in which any of the Property will be sold in the event of any sale under this Deed of Trust. 9.6 Non - Waiver of Defaults. The entering upon and taking possession of the Property, the collection of Rents or the proceeds of fire and other insurance policies or compensation or awards for any taking or damage of the Property, and the application or release thereof as herein provided, shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. 9.7 Expenses During Redemption Period. If this Deed of Trust is foreclosed as a mortgage and the Property sold at a foreclosure sale, the purchaser may during any redemption period allowed, make such repairs or alterations on the Property as may be reasonably necessary for the proper operation, care, preservation, protection and insuring thereof. Any sums so paid together with interest thereon from the time of such expenditure at the lesser of the default rate under the Note, or the maximum rate permitted by law, shall be added to and become a part of the amount required to be paid for redemption from such sale. 92 Foreclosure Subject to Tenancies. Lender shall have the right at its option to foreclose this Deed of Trust subject to the rights of any tenant or tenants of the Property. 9.9 Remedies Cumulative. To the extent permitted by law, every right and remedy provided in this Deed of Trust is distinct and cumulative to all other rights or remedies under this Deed of Trust or afforded lo,• law or equity or any other agreement between Lender and Borrower, and may be exercised concurrently, independently or successively, in any order whatsoever. Lender may exercise any of its rights and remedies at its option without regard to the adequacy of its security. 9.10 Lender's and Trustee's Expenses. Borrower shall pay all of Lender's and Trustee's expenses incurred in any efforts to enforce any terms of this Deed of Trust, whether or not any suit is filed, including without limitation legal fees and disbursements, foreclosure costs and title charges. All such sums, with interest thereon. shall be additional indebtedness of Borrower secured by this Deed of Trust. Such sums shall be immediately due and payable and shall bear interest from the date of disbursement at the lesser of the default rate under the Note, or the maximum rate permitted by law. mnMwcanoros ARTICLE X GENERAL 10.1 No Offset. Borrower's obligation to timely pay and perform all obligations under the Note, this Deed of Trust, and the other Loan Documents shall be absolute and unconditional and shall not be affected by any event or circumstance; including without limitation any setoff, counterclaim, abatement, suspension, recoupment, deduction, defense or any other right that Borrower or any guarantor may have or claim against Lender or any other person or entity. The foregoing shall not constitute a waiver of any claim or demand which Borrower or any guarantor may have in damages or otherwise against Lender or any other person or entity: provided that Borrower shall maintain a separate action thereon. 10.2 Application of Payments. Except as applicable law or this Deed of Trust may otherwise provide, all payments received by Lender under the Note or this Deed of Trust shall be applied by Lender in the following order of priority: (a) Lender's and - 21 - DEED OF TRUST • Trustees expenses incurred in any efforts to enforce any terms of this Deed of Trust; (h) interest payable on advances made to protect the security of this Deed of Trust; (r) principal of such advances; (d) amounts payable to Lender by Borrower under Article 111 for reserves; (e) interest and late charges payable on the Note; (f) principal of the Note; and (g) any other Secured Obligations in such order as Lender. at its option, may determine; provided, however, that Lender may, at its option, apply any such payments received to interest on or principal of the Note prior to applying such payments to interest on and principal of advances made to protect the security of this Deed of Trust 10.3 Appraisal Costs. In the event the Financial institutions Reform. Recovery, and Enforcement Act. as amended, or any regulatory agency, requires Lender to obtain an appraisal of the Property, Borrower shall reimburse Lender on demand for payment of the costs of such appraisal. 10.4 Imposition of Tax. For purposes of this Section, "Tax" shall mean: (a) a specific tax on deeds of trust or on all or any part of the indebtedness secured by a deed of trust; or (b) a specific tax on the owner of the Property covered by a deed of trust which the taxpayer is authorized or required to deduct from payments on the deed of trust; or (c) a tax on property covered by a deed of trust chargeable against a beneficiary or trustee under the deed of trust or the holder of the note secured by the deed of trust or (d) a specific tax (other than an income tax or a gross receipts tax) on all or any portion of the obligations secured hereby or on payments of principal and interest made by a grantor under a deed of trust. If any Tax is enacted subsequent to the date of this Deed of Trust, enactment of the Tax shall constitute an Event of Default, and Lender may exercise any or all of the remedies available to it upon the occurrence of any Event of Default, unless the following conditions are met (i) Borrower may lawfully pay the Tax without causing any resulting economic disadvantage or increase of tax to Beneficiary or Trustee; and (ii) Borrower pays the Tax (including any tax on the payment made) within thirty (30) days after notice from Lender that the tax law has been enacted. 10.5 Reeonvevance. Upon payment of all Secured Obligations, Lender shall request Trustee to reconvey the Property and shall surrender this Deed of Trust and all notes evidencing the Secured Obligations to Trustee. Trustee shall reconvey the Property without warranty to the person or persons legally entitled thereto. The grantee in any reconveyance may be described as the "person or persons legally entitled thereto: and the recitals therein of any matters or facts shall be conclusive proof of the truthfulness thereof. Such person or persons shall pay Trustee's reasonable costs incurred in so reconveying the Property. 10.6 Successor Trustee. In accordance with applicable law, Lender may from time to time appoint a successor trustee to any Trustee appointed hereunder. Without conveyance of the Property, the successor trustee shall succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law. COT i rnCOOM01 I • • • - 22 - DEED OF TRUST wIpw,rdrora • 10.7 Lender's Powers. Without affecting the liability of any person for payment or performance of the Secured Obligations or any of Lender's rights or remedies, Lender, at its option, may extend the time for payment of the Secured Obligations or any part thereof. reduce payment thereon, release anyone liable thereon, accept a renewal note or notes therefor, modify the terms and time of payment thereof, release the lien of this Deed of Trust on any part of the Property, take or release other or additional security, release or reconvey or cause to be released or reconveyed all or any part of the Property, or consent and /or cause Trustee to consent to the making of any map or plat of the Property, consent or cause Trustee to consent to the granting of any casement or creating any restriction on the Property, or join or cause Trustee to join in any subordination or other agreement affecting this Deed of Trust or the lien or charge hereof. Borrower shall pay Lender a reasonable service charge, together with such title insurance premiums and attorneys' fees as may be incurred at Lender's option, for anv such action if taken at Borrower's request. 10.8 Subdivision. Borrower hereby consents to a subdivision of the Property, if Lender, in its sole discretion, determines that a subdivision of the Property is necessary or desirable to preserve the lien of this Deed of Trust, or to permit Lender to foreclose on only a portion of the Property. 10.9 Subrogation. Lender shaU be subrogated for further security to the Tien, although released of record, of any and all encumbrances discharged, in whole or in part, by the proceeds of the Note or any other indebtedness secured hereby. 10.10 limitation on Interest and Charges. The interest, fees and charges under the Loan Documents shall not exceed the maximum amounts permitted by any applicable law. If any such interest. fee or charge exceeds the maximum, the interest, fee or charge shall be reduced by the excess and any excess amounts already collected from Borrower shall be refunded. Lender may refund such excess either by treating the excess as a prepayment of principal under the Note or by making a direct payment to Borrower. If Lender elects to treat the excess as a prepayment of principal, Borrower shall not be obligated to pay any prepayment premium required under the Note. The provisions of this paragraph shall control over any inconsistent provision in the Loan Documents. 10.11 Additional Documents; Power of Attorney. Borrower, from time to time, shall execute, acknowledge and deliver to Lender upon request, and hereby irrevocably appoints Lender its attorney -in -fact to execute, acknowledge, deliver and if appropriate file and nYord, such security agreements, assignments for security purposes, assignments absolute, financing statements, affidavits, certificates and other documents, in form and substance satisfactory to Lender, as Lender may request in order to perfect, preserve. continue, extend in time or maintain the assignments herein contained, the lien and security interest under this Deed of Trust, and the priority thereof. Borrower shall pay to Under upon request therefor all costs and expenses incurred in connection with the preparation, execution, recording and filing of any such document. - 23 - DEED OF TRUST cotwv„tprr • 10.12 Waiver of Statute of Limitations. To the full extent Borrower may do so, Borrower hereby waives the right to assert any statute of limitations as a defense to the enforcement of the lien of this Deed of Trust or to any action brought to enforce the Note or any other obligation secured by this Deed of Trust. 10.13 Forbearance by Lender Not a Waiver. Any forbearance by Lender in exercising any right or remedy hereunder, or otherwise afforded by applicable law, shall not he a waiver of or preclude the exercise of any right or remedy, and no waiver by Lender of any particular default shall constitute a waiver of any other default or of any similar default in the future. Without limiting the generality of the foregoing, the acceptance by Lender of payment of any of the Secured Obligations after the due date thereof shall not be a waiver of Lender's right to either require prompt payment when due of all other sums so secured or to declare a default for failure to make prompt payment. The procurement of insurance or the payment of taxes or other liens or charges by Lender shall not be a waiver of Lender's right to accelerate the maturity of the indebtedness secured by this Deed of Trust. nor shall Lenders receipt of any awards, proceeds or damages under paragraphs 2.3 and 2.7 hereof operate to cure or waive Borrower's default in payment of the Secured Obligations. 10.14 Modifications and Waivers. This Deed of Trust cannot be waived. changed, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of any waiver, change, discharge or termination is sought. 10.15 Notice. Any notice to Borrower under this Deed of Trust shall be to the address noted above or such other address as may be designated by Borrower in writing and shall be deemed to have been given on the date delivered in the case of personal delivery or, if mailed, three (3) days after the postmark thereof. 10.16 Governing Law; Sevenbility; Captions. This Deed of Trust shall be governed by the laws of the State of Washington. If any provision or clause of this Deed of Trust conflicts with applicable taw, such conflicts shall not affect other provisions or clauses hereof which can be given effect without the conflicting provision, and to this end the provisions hereof are declared to be severable. The captions and headings of the paragraphs and articles of this Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof. 10.17 Definitions. As used herein: the term "Borrower' means the Borrower herein named, together with any subsequent owner of the Property or any part thereof or interest therein; the term 'Trustee" means the Trustee herein named, together with any successor Trustee; and the term "Lender" means the Lender herein named, together with any subsequent owner or holder of the Note or any interest therein, including pledgees, assignees and participants. -24- DEEDOFTRUST • 10.18 Successors and Assigns: Joint and Several Liability; Agents. This Deed of Trust shall bind and inure to the benefit of the parties hereto and their respective heirs, devisees, legatees, administrators, executors, successors and assigns, subject to the provisions of Article IV hereof. Each person executing this Deed of Trust as Borrower shall be jointly and severally liable for all obligations of Borrower hereunder. In exercising any rights hereunder or taking actions provided for herein, Lender and Trustee may act through their respective employees, agents or independent contractors as authorized by Lender and Trustee. 10.19 Number Gender. This Deed of Trust shall be construed so that wherever applicable the use of the singular number shall include the plural number, and vice versa, and the use of any gender shall be applicable to all genders. 10.20 Time. Time is of the essence in connection with all obligations of Borrower herein. 10.21 Request for Notice. Borrower hereby requests that a copy of any notice of default and notice of sale hereunder be mailed to it at its address set forth at the beginning of this Deed of Trust. 10.22 Assietiment of Loan Documents. Lender may assign the Loan Documents in whole or in part Lender may make available to any proposed assignee or participant all credit and financial dab with respect to Borrower and any guarantor as may be in the possession of Lender. Borrower agrees to provide any additional information that any proposed assignee or participant may reasonably request 10.23 Estoppel Certificate. Borrower shall, within ten (10) days after receipt of Lender's written request, furnish Lender or any other party designated by Lender with a written statement, duly acknowledged, setting forth the amount of the Secured Obligations and otherwise confirming the status of the Secured Obligations, the Property, and the Loan Documents. 'The remainder of this page is intentionally left blank.) - 25 - DEED OF TRUST t»rtoAtorlo'af 0 0nonuut & sr f � ar 0 11: 0 , By: "Borrower" ORAL AGREEMENTS OR ORAL COMMITMENTS TO LEND MONEY, EXTEND CREDIT, OR FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW. IN WITNESS WHEREOF. Borrower has executed this Deed of Trust as of the date first above written. CONTAINER PROPERTIES L. LC., a Washington limited liability company 11.vun 0. Qt.haniNuA3 Notary Public in alld for the State of Washington,f residing at ( I QCtr ta._ STATE OF WASHINGTON ) ss. County of IEiAg Piteu ) I certify that I know or have satisfactory evidence that Richard J. Padden is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as member of CONTAINER PROPERTIES LL.C. to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DATED this JQ day of July, 1998. Name (printed or typed) $hrleCO.Johar [71 My appointment expires: 61a1j19 - 26 - DEED OF TRUST EXHIBIT A TO DEED OF TRUST LEGAL DESCRIPTION The Land is located in King County, Washington, and is legally described as follows: That portion of Tracts 1 and 2 of THE MEADOWS, according to the partition map of part of the Francis McNatt Donation Land Claim no. 38 filed in King County Superior Court Cause Number 120091, and of the abandoned bed of the Duwamish River, all located in Section 33, Township 24 North. Range 4, East, Willamette Meridian. in King County, Washington, and all lying westerly of the westerly margin of East Marginal Way South and also westerly of the parcel of land adjoining East Marginal Way which was conveyed to Great Northern Railway Company by deed recorded under recording number 4784818; lying easterly of the easterly margin of the right of way of Commercial Waterway District No. 1 (Duwamish Waterway); lying southerly of the hereinafter described "Line A "; and lying northerly of the hereinafter described "Line r: Line A: Beginning on the westerly margin of East Marginal Way South, which point bears north 89°15'54" west a distance of 2470.01 feet along the Donation Claim line and south 23 °40'59" cast a distance of 648.77 feet along the westerly margin of East Marginal Way South from the intersection of the line between the Donation Claims of Francis McNatt and Henry Van Asselt with the east line of Section 33, Township 24 North, Range 4 East Willamette Meridian, in King County, Washington; running thence west a distance of 1574.72 feet to the east line of Commercial Waterway No. 1; thence south 15'00'00" east along said easterly line a distance of 237.76 feet to the True Point Of Beginning of said "Line A ": thence east a distance of 1053.10 feet; thence south 23°02'00" east a distance of 46.03 feet; thence east a distance of 56138 feet to the westerly margin of East Marginal Way South and the terminus of said "Line A "; Line B: UOT,w(QM110100 • • Beginning on the westerly margin of East Marginal Way South at a point which bears north 89°15'54" west a distance of 2470.01 feet along the Donation Claim line and south 23 °40'59" east a distance of 1374.17 feet - 27 - DEED OF TRUST 0010MtcwTc'A • along the westerly margin of East Marginal Way South from the intersection of the line between the Donation Claims of Francis McNatt and Henry Van Asselt with the east line of Section 33, Township 24 North, Range 4 East, Willamette Meridian. in King County, Washington said point being at the intersection of the westerly margin of East Marginal Way South with the north line of Van De Vanter Stock Farm Tract and the True Point Of Beginning of said "Line B"; thence north 89°27'50" west a distance of 14.94 feet thence north 8654'59" west a distance of 486.97 feet thence north 84•1704" west a distance of 117.00 feet thence south 83°5756" west a distance of 119.00 feet thence south 70°40'29" west a distance of 110.173 feet thence south 61°33'40" west a distance of 840.02 feet, to the easterly line of the right of way of Commercial Waterway District No.1 and the terminus of said "Line B." Together with the right to cross the parcel conveyed to Great Northern Railway Company as reserved in Deed recorded under File Number 4784816. - 28 - DEED OF TRUST