HomeMy WebLinkAbout2002 - Leasehold of Deed of Trust, Assignment of Rents and Leases, and Security Agreement - Northwest Container Services / US Bank - 20020123003031
After Recording Mail To:
U.S. Bank National Association
1420 Fifth Avenue, 11 Floor
P.O. Box 720, WWH 395
Seattle, Washington 98111-0720
Attn: Michelle Goerdel
LEGAL
DESCRIPTION:
111111
2002 23003031
FIRST AMERICAN DT 80.6a
61/23/1602 x' F 16 23
KING CODUNTY, NA
(Fixture Filing)
LEASEHOLD DEED OF TRUST, ASSIGNMENT OF RENTS AND
LEASES AND SECURITY AGREEMENT
(Security for Construction Loan)
Coversheet Recording Information:
GRANTOR: NORTHWEST CONTAINER SERVICES, INC.,. an
Oregon Corporation
GRANTEE: U.S. BANK NATIONAL ASSOCIATION,. a national
banking association
TRUSTEE: U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION
SECTION 33 TOWNSHIP 24 RANGE 4E; LOTS 5-
8 BLOCK 28 & BLOCKS 29 -30, LADD'S FIRST
ADD., VOL. 10, P. 75
The complete legal description is on Exhibit B -1 and
B -2.
ASSESSOR'S PROPERTY TAX PARCEL ACCOUNT NUMBERS:
542260- 0010 -04; 395890- 1315 -05
RECEIVED
SEP 1.4 Eli
COMMUNITY
DEVELOPMENT
DEED OF TRUST
(12127.5149/SB013340.1301 Execution Copy
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DEED OF TRUST
[ 12167.5 149/3$013340.130]
TABLE OF CONTENTS
1. TITLE AND USE 4
1.1 Warranty of Title 4
1.2 NonAgricultural Use; Commercial Loan 4
2. GRANTOR'S COVENANTS 4
2.1 Payment and Performance of Secured Obligations 4
2.2 Payment of Taxes, Utilities, Liens and Charges 5
(a) Taxes and Assessments 5
(b) Utilities 5
(c) Labor and Materials 5
(d) Liens and Charges 5
(e) Taxes, Assessments and Other Charges Imposed on
Beneficiary 5
2.3 Insurance 6
(a) Coverages Required 6
(b) Policies 6
(c) Payment; Renewals 7
(d) Application of Insurance Proceeds 7
(e) Application of Insurance Proceeds to Restoration 8
(f) Transfer of Title 8
2.4 Preservation and Maintenance of Property; Right of Entry 9
(a) Preservation and Maintenance 9
(b) Alterations 9
(c) Right of Entry 9
2.5 Parking 9
2.6 Use of Property 10
2.7 Condemnation 10
(a) Proceedings 10
(b) Application of Condemnation Proceeds 10
2.8 Protection of Beneficiary's Security I0
2.9 Reimbursement of Beneficiary's and Trustee's Expenses 11
2.10 Books and Records on Property 11
2.11 Leasehold Provisions 11
3. RESERVES 16
3.1 Deposits 16
3.2 Application of Deposits 16
3.3 Adjustments to Deposits 16
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3.4 Conditional Waiver 17
4. RESTRICTIONS ON TRANSFER OR ENCUMBRANCE 17
5. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT 17
5.1 Grant to Beneficiary 17
5.2 Beneficiary's Rights and Remedies 18
6. ASSIGNMENT OF RENTS AND LEASES 18
6.1 Assignment of Rents and Leases 18
6.2 Collection of Rents 19
6.3 Grantor's Representations and Warranties 19
6.4 Leases of the Property 20
crs 6.5 Beneficiary in Possession; Appointment of Receiver 20
6.6 Application of Rents 2I
C'' 6.7 Deficiencies 21
N 6.8 Beneficiary Not Mortgagee in Possession 21
c 6.9 Enforcement 21
cv 7 CREDIT AGREEMENT 22
O 7.1 Advances 22
7.2. Assignment of Claims 22
7.3. Default Under the Credit Agreement 22
8. EVENTS OF DEFAULT 22
8.1 Events of Default 22
8.2 Inapplicability of Cure Periods 24
8.3 Form of Notice 24
9. REMEDIES . 24
9.1 Acceleration Upon Default; Additional Remedies 24
9.2 Prepayment Premium 25
9.3 Exercise of Power of Sale 25
9.4 Application of Sale Proceeds 25
9.5 Waiver of Order of Sale and Marshalling 26
9.6 Nonwaiver of Defaults.. 26
9.7 Expenses During Redemption Period 26
9.8 Foreclosure Subject to Tenancies 26
9.9 Remedies Cumulative 26
9.10 Beneficiary's and Trustee's Expenses 27
10. GENERAL 27
10.1 No Offset 27
10.2 Application of Payments 27
10.3 Appraisal Costs 28
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10.4 Imposition of Tax 28
I0.5 Reconveyance 28
10.6 Successor Trustee 28
10.7 Beneficiary's Powers 29
10.8 Subdivision 29
10.9 Subrogation 29
10.10 Limitation on Interest and Charges 29
10.11 Additional Documents; Power of Attorney 30
10.12 Waiver of Statute of Limitations 30
10.13 Forbearance by Beneficiary Not a Waiver 30
10.14 Entire Agreement; Modifications and Waivers 30
10.15 Notice 31
10.16 Governing Law; Severability; Captions 31
10.17 Definitions 31
10.18 Successors and Assigns; Agents 31
10.19 Number; Gender 31
10.20 Time 32
10.21 Request for Notice 32
10.22 Assignment of Loan Documents 32
10.23 Estoppel Certificate 32
10.24 Certain Obligations Unsecured 32
DEED OF TRUST
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DEED OF TRUST
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DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES
AND SECURITY AGREEMENT
(Security for Construction Loan)
(Fixture Filing)
THIS DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES, AND
SECURITY AGREEMENT ( "Deed of Trust ") is made this 17- day of January, 2002, by
Grantor, NORTHWEST CONTAINER SERVICES, INC., an Oregon corporation,
( "Grantor ") whose mailing address is 11920 N. Burgard Road, Portland, Oregon 97203. The
Trustee is U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, whose mailing
address is 1420 Fifth Avenue, 8th Floor, Seattle, Washington 98101. The Beneficiary is
U.S. BANK NATIONAL ASSOCIATION, a national banking association ( "Beneficiary"),
whose mailing address is 1420 Fifth Avenue, 11` Floor, P.O. Box 720, WWH395, Seattle,
Washington 98111-0720.
For purposes of Article 9 of the Uniform Commercial Code (RCW 62A.9), this Deed
of Trust constitutes a Security Agreement with Grantor being the Debtor and Beneficiary
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 ( "Loan ") evidenced by the Notes described below,
Grantor hereby irrevocably GRANTS, TRANSFERS, CONVEYS and ASSIGNS to Trustee,
IN TRUST, WITH POWER OF SALE, all of Grantor's present and future estate, right, title,
claim and interest, either in law or in equity, in and to the following property ( "Property "):
(a) All of the Grantor's interest and rights in, to and under those certain leases
more particularly described on Exhibit A (each a "Property Lease" and collectively, "Property
Leases ") covered certain parcels of real property and the improvements located thereon and
each parcel more particularly described on Exhibit B -1 an Exhibit B -2 (in each case and
collectively, the "Land "). If Grantor hereafter acquires fee simple title or any other estate or
interest in a portion of the Land that is subject to a Property Lease, no merger of the leasehold
estate of Grantor with the fee simple estate of the lessor under that Property Lease shall
occur, but the fee simple estate or any other interest or estate hereafter acquired by Grantor
shall immediately become subject to the lien of this Deed of Trust, and Grantor shall,
immediately on request by Beneficiary execute, acknowledge and deliver any instruments
Beneficiary may reasonably request to carry out the purpose and intent of this paragraph and
to give notice thereof.
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(b) All of Grantor's interest and rights in, to and under that certain City of Seattle
Permit SU #X6609, dated January 14, 2002, issued by the City of Seattle ( "Permit ").
(c) All of Grantor's interest in the Land, together with all other right, title and
interest Grantor may now have or acquire in or to the Land or under the Property Leases,
whether created by or arising under the Property Leases or otherwise acquired, including,
without limitation, all rights of first refusal and options to purchase or lease the Land or any
portion thereof or interest therein set forth in the Property Leases, all rights and interests of
Grantor in any bankruptcy proceeding involving the lessor under the Property Leases, and any
greater estate in the Land owned or hereafter acquired.
(d) All buildings, improvements and tenements now or hereafter located on the
Land ( "Improvements "), including, without limitation, all fixtures, articles and accessions of
property 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, paneling, 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.
(e) All of the present and future rents, revenues, issues, accounts, general
intangibles, 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.
(f) 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 Grantor, 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
DEED OF TRUST PAGE 2
[12187.3149/SB013340.1301 Execution Copy
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.
(g) 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.
(h) 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.
(i) All proceeds of the foregoing.
TO SECURE THE FOLLOWING ( "Secured Obligations "):
(1) Payment of the sum of $5,000,000, with interest thereon, according to
the terms and provisions of a promissory note ( "Revolving Note ") of even date, made by
Grantor and payable to Beneficiary.
(2) Payment of the aggregate sum of $500,000, with interest thereon,
according to the terms and provisions of those certain promissory notes ( "Equipment Notes,"
and collectively with the Revolving Note, the "Notes "), from time to time, made by Grantor
and payable to Beneficiary.
(3) Payment of all other sums which are or may become owing under the
Loan Documents (as hereinafter defined).
DEED OF TRUST
(12187- 5149/SB013340.1301
(4) Performance of all other obligations under the Loan Documents.
(5) Any and all obligations of Grantor to Beneficiary under or related to
any Rate Swap Transaction entered into between Beneficiary and Grantor relating to the
Loan, including, without limitation, any payments on Early Termination under any Swap
Agreement or Confirmation. Capitalized terms used in this subsection (5) are defined in the
1991 ISDA Definitions, published by the International Swap Dealers Association, Inc.
As used herein, the term "Loan Documents" means the Notes, this Deed of Trust, the
Credit Agreement ( "Credit Agreement ") between Beneficiary and Grantor of even date
herewith, and the Security Agreement between Beneficiary and Grantor of even date herewith,
and all related documents and instruments, (except the "Indemnity Agreement" dated the same
as this Deed of Trust and executed by Grantor in favor of Beneficiary), and any and all
modifications, extensions, renewals and replacements thereof. The Secured Obligations may
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be indexed, amended, modified, adjusted, renewed or renegotiated. Grantor's obligations
under the Indemnity Agreement are not secured by this Deed of Trust.
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GRANTOR HEREBY REPRESENTS, WARRANTS, COVENANTS AND
AGREES AS FOLLOWS:
1. TITLE AND USE
1.1 Warranty of Title
Grantor warrants, represents, covenants and agrees as follows: (a) Grantor 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 liens, encumbrances, exceptions and other charges of
any kind whatsoever, except for the Permitted Exceptions; (c) no other lien or encumbrance,
o whether superior or inferior to this Deed of Trust, shall be created or suffered to be created by
Grantor without the prior written consent of Beneficiary; (d) no default on the part of Grantor
or any other person exists under any of the Permitted Exceptions and all of the Permitted
yr' Exceptions are in full force and effect and in good standing, without modification;
CNI (e) complete and current copies of the Permitted Exceptions have been furnished to
Beneficiary, and none of them have been or will be modified by Grantor without Beneficiary's
c.► prior written consent; (f) Grantor shall fully comply with all the terms of the Permitted
Exceptions and shall deliver to Beneficiary a copy of all notices delivered in connection with
the Permitted Exceptions; (g) Beneficiary has the right to contact the other parties to the
Permitted Exceptions to confirm the status thereof, and Grantor shall, from time to time, at
the request of Beneficiary, request of such parties a certificate confirming such information
regarding the Permitted Exceptions as Beneficiary may request; and (h) Grantor shall forever
warrant and defend the Property unto Beneficiary against all claims and demands of any other
person whatsoever, subject only to nondelinquent 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 Exhibit B of the policy of title insurance issued to Beneficiary
with respect to this Deed of Trust.
1.2 NonAgricultural Use; Commercial Loan
Grantor represents and warrants to Beneficiary that (a) the Property is not used
principally for agricultural purposes and (b) the loan secured by this Deed of Trust was not
made primarily for personal, family or household purposes.
DEED OF TRUST
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2. GRANTOR'S COVENANTS
2.1 Payment and Performance of Secured Obligations
Grantor shall pay when due all sums which are now or which may become owing
under the Notes, and shall pay and perform all other Secured Obligations in accordance with
their terms.
2.2 Payment of Taxes, Utilities, Liens and Charges
(a) Taxes and Assessments
Except as the same may otherwise be paid under Section 3, Grantor shall pay when
due directly to the payee thereof all taxes and assessments (including, without limitation,
nongovernmental 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, Grantor shall promptly furnish to Beneficiary all notices of amounts due under
this subparagraph and all receipts evidencing such payments.
DEED OF TRUST
[12187- 5149/SB013340.130)
(b) Utilities
(c) Labor and Materials
Grantor shall pay when due all utility charges and assessments for services furnished
the Property.
Grantor shall pay when due the claims of all persons supplying labor or materials to or
in connection with the Property.
(d) Liens and Charges
Grantor 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 Grantor 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 Grantor, upon prior written
notice to Beneficiary, 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) Grantor,
before the date such lien, encumbrance or other charge becomes delinquent, gives such
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reasonable security as may be requested by Beneficiary to ensure payment thereof and prevent
any forfeiture or loss of the Property or any part thereof.
If, at any time after the date of this Deed of Trust, any law is enacted or changed
(Including any interpretation thereof) which subjects Beneficiary 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, Grantor shall pay such
increased amount to Beneficiary on demand; provided that if any such payment would be
unlawful, Beneficiary may declare all accrued interest and the entire principal balance of the
Notes immediately due and payable.
Property:
(e) Taxes, Assessments and Other Charges Imposed on
Beneficiary
2.3 Insurance
(a) Coverages Required
Grantor shall keep the following insurance coverages in effect with respect to the
(1) Insurance against loss 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 endorsement" without reduction for depreciation, and shall also contain
loss of rents and/or business interruption insurance coverage, a fluctuating value endorsement
with a waiver of the co- insurance clause (or an agreed amount endorsement with an inflation
guard endorsement), and shall contain such other endorsements as Beneficiary may reasonably
request. All such endorsements shall be in form and substance satisfactory to Beneficiary.
(2) Commercial general liability insurance against claims for bodily injury,
death or property damage occurring on, in or about the Property in amounts and on terms
acceptable to Beneficiary.
(3) Flood insurance in an amount satisfactory to Beneficiary and on terms
satisfactory to Beneficiary if the Land is located in a designated flood hazard area.
(4) Rental and/or business interruption insurance for a period of not less
than twelve months in amounts and otherwise on terms satisfactory to Beneficiary.
(5) Insurance against such similar or other hazards, casualties, liabilities
and contingencies, in such forms and amounts, as Beneficiary may from time to time
reasonably require.
DEED OF TRUST PAGE 6
[1 2 1 87- 5 1 49/SB013340.130] Execution Copy
(b) Policies
Each insurance policy shall be with a company and in a form acceptable to Beneficiary.
Each hazard insurance policy shall include a Form 438BFU or equivalent mortgagee
endorsement in favor of Beneficiary. Each liability insurance policy shall name Beneficiary as
an additional insured. All required policies will provide for at least ten days' written notice to
Beneficiary prior to the effective date of any cancellation or material amendment, which term
shall include any reduction in the scope or limits of coverage. Grantor shall furnish to
Beneficiary 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, Grantor
hereby assigns to Beneficiary all required insurance policies, together with all proceeds
thereof, rights thereto and all unearned premiums returnable upon cancellation.
e+7
t=. (c) Payment; Renewals
Grantor shall promptly furnish to Beneficiary all renewal notices relating to insurance
policies. Except as the same may otherwise be paid under Section 3, Grantor shall pay all
premiums on insurance policies directly to the carrier. At least 30 days prior to the expiration
date of each such policy, Grantor shall furnish to Beneficiary a renewal policy in a form
• acceptable to Beneficiary, together with evidence that the renewal premium has been paid.
In the event of any material loss, Grantor shall give prompt written notice thereof to
the insurance carrier and Beneficiary. Grantor hereby authorizes Beneficiary as Grantor's
attorney -in -fact to make proof of loss, to adjust and compromise any claim, to commence,
appear in and prosecute, in Beneficiary's or Grantor's name, any action relating to any claim,
and to collect and receive insurance proceeds; provided, however, that Beneficiary shall have
no obligation to do so. Beneficiary shall apply any 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, to:
(1) The payment of the Secured Obligations, whether then due and payable
or not. Any such application of proceeds to principal on the Notes shall be without the
imposition of any prepayment fee otherwise payable under the Notes, but shall not extend or
postpone the due dates of the installment payments under the Notes, or change the amounts
thereof; or
(2) The reimbursement of Grantor, under Beneficiary's prescribed
disbursement control procedures, for the cost of restoration or repair of the Property.
DEED OF TRUST
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(d) Application of Insurance Proceeds
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Beneficiary may, at its option, condition the reimbursement on Beneficiary's approval of the
plans and specifications of the reconstruction, contractor's cost estimates, architect's
certificates, waivers of liens, sworn statements of mechanics and materialmen, and such other
evidence of costs, percentage completion of construction, application of payments and
satisfaction of liens as Beneficiary 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 Grantor from restoring,
repairing or maintaining the Property as provided in Section 2.4, regardless of whether or not
there are insurance proceeds available or whether any such proceeds are sufficient in amount.
(e) Application of Insurance Proceeds to Restoration
Notwithstanding the provisions of Section 2.3(d), Grantor, rather than Beneficiary,
shall have the right to direct the application of insurance proceeds to payment of the Secured
Obligations or to repair or restoration of the Property upon satisfaction of the following
conditions:
(1) There is then no Event of Default nor any event or condition which
would be an Event of Default if not cured within the time allowed.
o (2) If the proceeds are to be applied to repair or restoration then in
addition to the matters required under Section 2.3(d)(2) above, Beneficiary shall have
approved each of the following with respect to the repair or restoration: (i) the construction
contract, and if required by Beneficiary, payment and performance bonds with dual obligee
rider; (ii) evidence that the insurance proceeds are adequate to restore the Property to its
condition immediately prior to the casualty, and if insufficient, the deficiency shall be
deposited with Beneficiary for disbursement prior to disbursement of insurance proceeds;
(iii) evidence that Grantor has funds sufficient to pay operating expenses, taxes, debt service
and other carrying costs of the Property through the period of repair or restoration;
(iv) evidence that upon such repair or restoration the Property will be in compliance with all
applicable laws, ordinances and regulations; (v) evidence that such repair or restoration of the
Property will be completed at least 30 days before the current maturity date under the Notes;
and (vi) evidence that upon the completion of any such repair or restoration the Property will
produce sufficient income and be of sufficient value to be adequate security for the Secured
Obligations.
(3) Each disbursement shall be made in accordance with and subject to the
provisions of the Credit Agreement.
DEED OF TRUST
[121874149/S8013340.130]
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(f) Transfer of Title
(4) Grantor shall execute and deliver to Beneficiary such additional security
documents and instruments as Beneficiary deems necessary to continue and to perfect
Beneficiary's security interest in the Property.
If the Property is sold pursuant to Section 4 or if Beneficiary otherwise acquires title
to the Property, Beneficiary shall have all of the right, title and interest of Grantor in and to
any insurance policies and unearned premiums thereon and in and to the proceeds resulting
from 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
yrs
i°1 Grantor represents and warrants that the Improvements are free from damage caused
' by fire or other casualty. Grantor 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 Beneficiary may approve in
,N writing, in the event of any damage, injury or loss thereto, whether or not insurance proceeds
• are available to cover in whole or in part the costs of such restoration or repair, (iv) keep the
- Property, including, 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.
None of the Improvements shall be structurally altered, removed or demolished, in
whole or in part, without Beneficiary's prior written consent. Beneficiary shall not
unreasonably withhold or delay its consent to minor structural alterations if Grantor furnishes
plans and assurances that the work will be completed in good workmanlike quality and
Beneficiary determines in its reasonable business judgment that the value of the Property will
not be materially and adversely affected. Grantor shall not remove any fixture or chattel
covered by this Deed of Trust and adapted to the use and enjoyment of the Property at any
time without Beneficiary's prior written consent unless actually replaced by an Article of equal
suitability which is owned by Grantor free and clear of any lien or security interest.
DEED OF TRUST
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(b) Alterations
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2.5 Parking
DEED OF TRUST
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(c) Right of Entry
Beneficiary 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 Grantor's compliance with this Section.
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, Grantor 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, Grantor shall furnish to Beneficiary satisfactory
assurance of completion thereof free of liens and in conformity with all government zoning
and other regulations.
2.6 Use of Property
Grantor represents and warrants to Beneficiary that the Land, the Improvements and
their intended use by Grantor 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. Grantor shall comply with all laws,
ordinances, regulations and requirements of any governmental body, and all other covenants,
conditions 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 Beneficiary has
otherwise agreed in writing, Grantor 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. Grantor shall
not initiate or acquiesce in a change in the zoning classification of the Property without
Beneficiary's prior written consent.
2.7 Condemnation
(a) Proceedings
Grantor shall promptly notify Beneficiary of any action or proceeding relating to any
condemnation or other taking (including, without limitation, any change in the grade of the
Property), whether direct or indirect, of the Property or part thereof or interest therein, and
Grantor shall appear in and prosecute any such action or proceeding unless otherwise directed
by Beneficiary in writing. Grantor authorizes Beneficiary, at Beneficiary's option, as attorney -
in -fact for Grantor, to commence, appear in and prosecute, in Beneficiary's or Grantor's
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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 Beneficiary, and all proceeds of any such awards,
payments, damages or claims shall be paid to Beneficiary.
(b) Application of Condemnation Proceeds
Beneficiary shall apply any such proceeds in the manner and upon the terms and
conditions set forth in Section 2.3(d) relating to the application of insurance proceeds.
2.8 Protection of Beneficiary's Security
Grantor shall give notice to Beneficiary of and shall appear in and defend any action or
proceeding that may affect the Property, the interests of Beneficiary or Trustee therein, or the
rights or remedies of Beneficiary or Trustee under the Loan Documents. If any such action or
en proceeding is commenced and there is an uncured Event of Default, or Grantor fails to
.-. perform any of the Secured Obligations, Beneficiary or Trustee may, at their option, make any
cz
appearances, disburse any sums, pay or settle any claims that have resulted in or may result in
N a lien of any portion of the property, 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 Grantor's failure to perform the Secured Obligations (without waiving such
c default by Grantor), or (iii) otherwise protect Beneficiary's or Trustee's interests. Grantor
g shall pay all losses, damages, fees, costs and expenses incurred by Beneficiary and Trustee in
taking such actions; including, without limitation, reasonable legal fees.
2.9 Reimbursement of Beneficiary's and Trustee's Expenses
All amounts disbursed by Beneficiary and Trustee pursuant to Section 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 Notes 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 Notes, or the
maximum rate permitted by law.
2.10 Books and Records on Property
Grantor shall keep and maintain at Grantor's address stated above, or such other place
as Beneficiary 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
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documents shall be subject to examination, inspection and copying at any reasonable time by
Beneficiary. Grantor shall furnish to Beneficiary, within 20 days after Beneficiary's request
therefor, the following documents, each certified to Beneficiary by Grantor as being true,
correct and complete: (a) copies of all leases and other agreements for occupancy or use of
all or any portion of the Property, (b) 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
4-- recent real and personal property tax statements for the Property, and (d) copies of the most
4:3 recent statements for the insurance coverage maintained pursuant to this Deed of Trust.
en
2.11 Leasehold Provisions
- . (a) Grantor hereby covenants, warrants and represents to Beneficiary with respect
c to each Property Lease and Grantor's leasehold estate thereunder as follows:
(1) Each Property Lease is in full force and effect and, except as otherwise
disclosed to the Beneficiary prior to the date hereof, unmodified by any writing or otherwise;
(2) All rent, additional rent and/or other charges reserved in or payable
under the each Property Lease have been paid to the extent that they are payable to the date
hereof,
estate;
(3) Grantor enjoys the quiet and peaceful possession of each leasehold
(4) Grantor has not delivered or received any notices of default under any
Property Lease and is not in default under any of the terms of any Property Lease and there
are no circumstances which, with the passage of time or the giving of notice or both, would
constitute a default under any Property Lease;
(5) The Lessor under each Property Lease is not in default under any of the
terms of such Property Lease on its part to be observed or performed;
(6) Grantor has delivered to Beneficiary a true, accurate and complete
copy of each Property Lease;
(7) Grantor promptly shall pay the rent and all other sums and charges
mentioned in, and payable under, each Property Lease;
(8) Grantor promptly shall perform and observe all of the terms, covenants
and conditions required to be performed and observed by the lessee under each Property
Lease, the breach of which could permit any party to such Property Lease to validly terminate
DEED OF TRUST PAGE 12
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• •
the Property Lease (including, but without limiting the generality of the foregoing, any
payment obligations), shall do all things necessary to preserve and to keep unimpaired its
rights under each Property Lease, shall not waive, excuse or discharge any of the material
obligations of the lessor under any Property Lease without Beneficiary's prior written consent
in each instance and shall diligently and continuously enforce the material obligations of the
lessor under each Property Lease;
(9) Grantor shall not do, permit or suffer any event or omission as a result
of which there could occur a default under any Property Lease or any event which, with the
giving of notice or the passage of time, or both, would constitute a default under any Property
Lease which could permit any parry to such Property Lease to validly terminate the Property
Lease (including, but without limiting the generality of the foregoing, a default in any payment
obligation);
(10) Grantor shall not cancel, terminate, surrender, modify or amend or in
m any way alter or permit the alteration of any of the provisions of any Property Lease or agree
to any termination, amendment, modification or surrender of any Property Lease without
Beneficiary's prior written consent in each instance;
N
.O
N
(11) Grantor will promptly notify Beneficiary of any defaults by any party
under any Property Lease and shall deliver to Beneficiary copies of any notice of default by
any party under the Property Lease, or of any notice from the lessor under any Property Lease
of its intention to terminate such Property Lease or to reenter and take possession of the
Property, immediately upon delivery or receipt of such notice, as the case may be;
(12) Grantor shall promptly furnish to Beneficiary copies of such
information and evidence as Beneficiary may request concerning Grantor's due observance,
performance and compliance with the terms, covenants and conditions of any Property Lease;
(13) Grantor shall not consent to the subordination of any Property Lease to
• any mortgages of the fee interest and/or Property Leasehold interest in the Property;
(14) Any defauh under any Property Lease or any failure by Grantor to
perform its obligations under any Property Lease shall constitute a default hereunder; and
(15) Grantor, at its sole cost and expense, shall execute and deliver to
Beneficiary, within five days after request, such documents, instruments or agreements as may
be required to permit Beneficiary to cure any default under any Property Lease.
(b) In the event of default by Grantor in the performance of any of its obligations
under any Property Lease, including, but without limiting the generality of the foregoing, any
default in the payment of any sums payable thereunder, then, in each and every case,
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Beneficiary may, at its option, cause the default or defaults to be remedied and otherwise
exercise any and all of the rights of Grantor thereunder in the name of and on behalf of
Grantor. Grantor shall, on demand, reimburse Beneficiary for all advances made and expenses
incurred by Beneficiary in curing any such default (including, without limiting the generality of
the foregoing, reasonable attorneys' fees and disbursements), together with interest thereon
computed at the Default Rate (as defined in the Notes) from the date that such advance is
made, to and including the date the same is paid to Beneficiary.
(c) Grantor shall give Beneficiary notice of its intention to exercise each and every
option, if any, to extend the term of the Property Lease, at least 30 days prior to the
C7 expiration of the time to exercise such option under the terms thereof. If Grantor intends to
vrs extend the term of any Property Lease, it shall deliver to Beneficiary, with the notice of such
decision, a copy of the notice of extension delivered to the lessor thereunder, together with
the terms and conditions of such extension.
(d) Grantor shall request and make diligent efforts to obtain, within 20 days after
written demand by Beneficiary, an estoppel certificate from the lessor under any Property
Lease setting forth (i) the name of the lessee and the lessor thereunder, (ii) that the Property
N Lease is in full force and effect and has not been modified or, if it has been modified, the date
of each modification (together with copies of each such modification), (iii) the basic rent
payable under the Property Lease, (iv) the date to which all rental charges have been paid by
the lessee under the Property Lease, (v) whether a notice of default has been received by the
lessor under the Property Lease which has not been cured, and if such notice has been
received, the date it was received and the nature of the default, (vi) whether there are any
alleged defaults of the lessee under the Property Lease and, if there are, setting forth the
nature thereof in reasonable detail, and (vii) if the lessee under the Property Lease shall be in
default, the default.
(e) Anything contained herein to the contrary notwithstanding, this Deed of Trust
shall not constitute an assignment of any Property Lease within the meaning of any provision
thereof prohibiting its assignment and Beneficiary shall have no liability or obligation
thereunder by reason of its acceptance of this Deed of Trust. Beneficiary shall be liable for the
obligations of the lessee arising under any Property Lease for only that period of time which
Beneficiary is in possession of the Property or has acquired, by foreclosure or otherwise, and
is holding all of Grantor's right, title and interest therein.
(f) It is hereby agreed that the fee title, leasehold estate and leasehold estate shall
not merge but shall always be kept separate and distinct, notwithstanding the union of any of
said estates in either the lessor under any Property Lease, Grantor or a third party, whether by
purchase or otherwise. If Grantor shall acquire fee title to the property leased to Grantor, or
any other estate, title or interest in the property demised under any Property Lease, or any
portion thereof, then, immediately upon Grantor's acquisition thereof, this Deed of Trust
DEED OF TRUST PAGE 14
[ 12187- 5149/SB013340.130) Execution Copy
automatically shall spread to cover Grantor's interest in such leased property on the same
terms, covenants and conditions as set forth herein. Upon such acquisition, Grantor, at it's
sole cost and expense, shall deliver to Beneficiary an ALTA Form B Mortgage Title Insurance
Policy issued by a title insurance company acceptable to Beneficiary, insuring that this Deed of
Trust, as so spread to cover Grantor's interest in such leased property, is a valid first lien on
Grantor's interest therein, subject only to the Permitted Exceptions. It is the intention of
Grantor and Beneficiary that no documents, instruments or agreements shall be necessary to
confirm the foregoing spread of this Deed of Trust to cover Grantor's interest in such leased
property, as aforesaid, and that such spreader shall occur automatically upon the
consummation of Grantor's acquisition of such estate, title or interest to such leased property.
• Notwithstanding the foregoing, Grantor shall make, execute, acknowledge and deliver to
Beneficiary or so cause to be made, executed, acknowledged and delivered to Beneficiary, in
form satisfactory to Beneficiary, all such further or other documents, instruments, agreements
▪ or assurances as may be required by Beneficiary to confirm the foregoing spread of this Deed
• of Trust to cover Grantor's interest in such leased property. Grantor shall pay all expenses
incurred by Beneficiary in connection with the preparation, execution, acknowledgement,
delivery and/or recording of any such documents, including, but without limiting the generality
O of the foregoing, all filing, registration and recording fees and charges, documentary stamps,
mortgage taxes, intangible taxes and reasonable attorneys' fees, costs and disbursements.
(g) If any action or proceeding shall be instituted to evict Grantor or to recover
possession of the Property or any part thereof or interest therein or any action or proceeding
otherwise affecting any Property Lease or this Deed of Trust shall be instituted, then Grantor
will, immediately upon service thereof on or to Grantor, deliver to Beneficiary a true and
complete copy of each petition, summons, complaint, notice of motion, order to show cause
and of all other provisions, pleadings and papers, however designated, served in any such
action or proceeding.
(h) If any Property Lease contains provisions which require mandatory arbitration
for the resolution of any disputes arising under the Property Lease and, to the extent Grantor
has any rights to agree to or approve such arbitration, Grantor will not agree to arbitrate any
disputes arising under the Property Lease without the written consent of Beneficiary, which
consent can be withheld at the sole discretion of Beneficiary. Notwithstanding, in the event
that Beneficiary consents to such an arbitration, Grantor will give Beneficiary prompt written
notice of the commencement of such arbitration and so long as no Event of Default shall have
occurred and be continuing, (i) Beneficiary shall have the right to intervene and participate in
any such proceeding, (ii) Grantor shall confer with Beneficiary to the extent which Beneficiary
reasonably deems necessary for the protection of Beneficiary, upon the written request of
Beneficiary, and (iii) Grantor shall select an arbitrator who is approved in writing by
Beneficiary; provided, however, that if at the time any such proceeding shall be commenced or
shall be in progress an Event of Default shall have occurred and be continuing, Grantor hereby
DEED OF TRUST
(12187 - 5149/58013340.130]
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c't
° 3.
m
•
irrevocably appoints and constitutes Beneficiary as its true and lawful attorney -in -fact, which
appointment is coupled with an interest, in its name, place and stead, to exercise, at the
expense of Grantor, all right, title and interest of Grantor in connection with such arbitration,
including the right to appoint arbitrators and to conduct arbitration proceedings on behalf of
Grantor. Nothing contained herein shall obligate Beneficiary to participate in such arbitration.
(i) Grantor shall, within ten days after written demand therefor from Beneficiary,
deliver to Beneficiary proof of payment of all items that are required to be paid by Grantor
under any Property Lease, including, without limitation, rent and other charges required to be
paid under the Property Lease.
(j) If any Property Lease shall be terminated prior to the natural expiration of its
• term, and if, pursuant to any provision of the Property Lease, Beneficiary or its designee shall
▪ acquire from the lessor under such Property Lease a new lease of the Property demised
thereunder and the improvements located thereon, Grantor shall have no right, title or interest
in or to such new lease or the leasehold estate created thereby, or renewal privileges therein
° contained.
RESERVES
3.1 Deposits
If required by Beneficiary, Grantor shall, at the time of making each monthly
installment payment under the Notes, deposit with Beneficiary a sum, as estimated by
Beneficiary, 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 months prior to the date when such taxes, special assessments and
premiums will become delinquent. Beneficiary may require Grantor to deposit with
Beneficiary, in advance, such other sums for other taxes, assessments, premiums, charges and
impositions in connection with Grantor or the Property as Beneficiary reasonably deems
necessary to protect Beneficiary's interests ( "Other Impositions "). Such sums for Other
Impositions shall be deposited in a lump sum or in periodic installments, at Beneficiary's
option. If required by Beneficiary, Grantor shall promptly deliver to Beneficiary all bills and
notices with respect to any taxes, assessments, premiums and Other Impositions. Unless
Grantor and Beneficiary otherwise agree in writing, Beneficiary shall not be required to pay
Grantor any interest, earnings or profits on any sums deposited with Beneficiary. All sums
deposited with Beneficiary under this Section 3.1 are hereby pledged as security for the
Secured Obligations.
DEED OF TRUST
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DEED OF TRUST
112187-5149/S8013340.130)
3.2 Application of Deposits
All such deposited sums shall be held by Beneficiary and applied in such order as
Beneficiary 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 Section 3 is solely for the added protection of Beneficiary
and entails no responsibility on Beneficiary'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
Beneficiary, any funds on hand shall be turned over to the assignee and any responsibility of
Beneficiary with respect thereto shall terminate. Each transfer of the Property in accordance
with Section 4 shall automatically transfer to the transferee all rights of Grantor with respect
o to any funds deposited hereunder. Upon payment in full of the Secured Obligations,
a' Beneficiary shall promptly refund to Grantor the remaining balance of any deposits then held
by Beneficiary.
3.3 Adjustments to Deposits
If the total deposits held by Beneficiary exceed the amount deemed necessary by
Beneficiary 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, be credited by
Beneficiary on the next due installment or installments of such deposits. If at any time the
total deposits held by Beneficiary are less than the amount deemed necessary by Beneficiary to
provide for the payment of such taxes, assessments, premiums and Other Impositions, Grantor
shall promptly deposit the deficiency with Beneficiary after receipt of written demand from
Beneficiary.
3.4 Conditional Waiver
Notwithstanding the foregoing, Beneficiary shall not require the payment of reserves
as provided in this Section until a delinquency occurs in the payment of such taxes,
assessments, premium and Other Impositions, or until the occurrence of an Event of Default.
4. 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 this Section 4) or
otherwise transferred by Grantor; nor shall there be any change in (1) the ownership or control
of any of Grantor's stock if Grantor is a corporation, (ii) the ownership or control of any
membership interest in Grantor if Grantor is a limited liability company, (iii) the ownership or
control of any general partnership interest in Grantor if Grantor is a partnership, (iv) the
ownership or control of any beneficial interests in Grantor if Grantor is not otherwise a natural
PAGE 17
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•
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 Grantor. Any such action without Beneficiary's prior
written consent shall be deemed to increase the risk of Beneficiary and shall constitute an
Event of Default if not corrected within five days after Beneficiary's delivery of written
demand to Grantor. Beneficiary may, in its sole discretion, consent to any such action subject
to such terms and conditions as Beneficiary 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 Notes and an increase in the interest rate of the Notes.
5. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT
5.1 Grant to Beneficiary
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
N effectively made part of the real property by the provisions of this Deed of Trust; and
• G
(b) Any and all other property now or hereafter described on any Uniform
Commercial Code Financing Statement naming Grantor as Debtor and Beneficiary 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 Grantor hereby grants Beneficiary a security interest in all property described in
clauses (a) and (b) above as security for the Secured Obligations. Grantor and Beneficiary
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 be
regarded as part of the Land.
5.2 Beneficiary's Rights and Remedies
With respect to the Property subject to the foregoing security interest, Beneficiary
shall have all of the rights and remedies (i) of a secured party under the Uniform Conunerciai
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, Beneficiary 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 Beneficiary's remedies. Upon demand by
DEED OF TRUST
(12187-514958013340.1301
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Beneficiary following an Event of Default hereunder, Grantor shall assemble any items of
personal property and make them available to Beneficiary at the Land. Beneficiary shall give
Grantor at least five 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.
6. ASSIGNMENT OF RENTS AND LEASES
6.1 Assignment of Rents and Leases
As security for the Secured Obligations, Grantor assigns and transfers to Beneficiary
and grants Beneficiary a security interest in and to all right, title and interest of Grantor 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 "); (b) 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 may become due or to which Grantor may now or shall hereafter
become entitled or may 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, Grantor shall have a license to, and shall,
collect and receive all Rents of the Property as trustee for the benefit of Beneficiary and
Grantor, 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 terms of this Deed of Trust, third to the costs of discharging any
obligation or liability of Grantor under the Leases, and fourth to the Secured Obligations, with
the balance, if any, to the account of Grantor provided there is no Event of Default. Upon
delivery of written notice by Beneficiary to Grantor of an Event of Default hereunder and
stating that Beneficiary exercises its rights to the Rents, and without the necessity of
Beneficiary entering upon and taking and maintaining full control of the Property in person, by
agent or by a court- appointed receiver, Beneficiary 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 Grantor as trustee for the benefit of Beneficiary only. Upon delivery of
such written notice by Beneficiary, Grantor hereby agrees to direct each tenant or occupant of
the Property to pay all Rents to Beneficiary on Beneficiary's written demand therefor, without
DEED OF TRUST
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•
any liability on the part of said tenant or occupant to inquire further as to the existence of an
Event of Default by Grantor. Grantor hereby authorizes Beneficiary as Grantor's attorney -in-
fact to make such direction to tenants and occupants upon Grantor's failure to do so as
required herein. Payments made to Beneficiary by tenants or occupants shall, as to such
tenants and occupants, be in discharge of the payors' obligations to Grantor. Beneficiary may
exercise, in Beneficiary's or Grantor's name, all rights and remedies available to Grantor with
respect to collection of Rents. Nothing herein contained shall be construed as obligating
Beneficiary to perform any of Grantor's obligations under any of the Leases.
6.3 Grantor's Representations and Warranties
Grantor hereby represents and warrants to Beneficiary that Grantor has not executed
and will not execute any other assignment of said Leases or Rents, that Grantor has not
performed and will not perform any acts and has not executed and will not execute any
instrument which would prevent Beneficiary from exercising its rights under this Section 6,
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. Grantor further represents and warrants to Beneficiary that all existing Leases
are in good standing and there is no default thereunder, whether by Grantor or lessee, and
that, to Grantor's knowledge, there is no event or condition which, with notice or the passage
of time or both, would be a default thereunder. Grantor shall execute and deliver to
Beneficiary such further assignments of Rents and Leases of the Property as Beneficiary may
from time to time request.
6.4 Leases of the Property
Grantor shall comply with and observe Grantor'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 Beneficiary's request, Grantor shall furnish Beneficiary
with executed copies of all Leases now existing or hereafter made and all Leases hereafter
entered into shall use a form previously approved by Beneficiary. All nonresidential Leases
and tenants shall be subject to Beneficiary's prior written approval, and shall specifically
provide that the tenant attorns to any person succeeding to the interest of Grantor upon any
foreclosure of this Deed of Trust or conveyance in lieu thereof. Such attornment shall be in
such form as Beneficiary 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 Grantor'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 attornment as Beneficiary may from time to time request. Without
Beneficiary's written consent, Grantor shall not (a) collect or accept payment of any Rents
more than one month prior to the due dates thereof; (b) modify, surrender or terminate any
Lease; (c) waive, discharge, release or modify the obligations of any tenant or other occupant
DEED OF TRUST PAGE 20
(12187- 5149/SB013340.130J Execution Copy
of the Property under any Lease; or (d) request or consent to the subordination of any Lease
to any lien subordinate to this Deed of Trust. Any attempted action in violation of this
Section 6.4 shall be null and void. Without in any way limiting the requirement of
Beneficiary's consent hereunder, any sums received by Grantor 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 Grantor shall be held in trust by Grantor for such purpose.
6.5 Beneficiary in Possession; Appointment of Receiver
Upon any Event of Default, Beneficiary may, in person, by agent or by a court-
--- appointed receiver, regardless of the adequacy of Beneficiary's security, enter upon and take
C7 and maintain full control of the Property in order to perform all acts necessary and appropriate
' ▪ for the operation and maintenance thereof in the same manner and to the same extent as
▪ Grantor could do the same, including, without limitation, the execution, enforcement,
cancellation and modification of Leases, the collection of all Rents of the Property, the
rya
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 Beneficiary 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 Beneficiary in
advance on the first day of each month a reasonable rental for the space so occupied, and
upon failure so to do Beneficiary shall be entitled to remove such owner from the Property by
any appropriate action or proceedings. Following an Event of Default, Beneficiary shall be
entitled (regardless of the adequacy of Beneficiary's security) to the appointment of a
receiver, Grantor hereby consenting to the appointment of such receiver.
Said receiver may serve without bond and may be Beneficiary or an employee of
Beneficiary. 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 Beneficiary in this
Section 6. Beneficiary 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 Beneficiary to Grantor
of an Event of Defauh 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 Grantor under the Leases,
and then to other Secured Obligations. Beneficiary or the receiver shall be liable to account
DEED OF TRUST
[12157- 5149/SB013340.130)
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only for those Rents actually received. Beneficiary shall not be liable to Grantor, anyone
claiming under or through Grantor or anyone having an interest in the Property by reason of
anything done or left undone by Beneficiary under this Section.
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 Grantor 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
Beneficiary and shall bear interest from the date of disbursement at the lesser of the default
rate under the Notes, or the maximum rate permitted by law.
6.8 Beneficiary Not Mortgagee in Possession
Nothing herein shall constitute Beneficiary 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 Beneficiary.
6.9 Enforcement
Beneficiary may enforce this assignment without first resorting to or exhausting any
security or collateral for the Secured Obligations.
7. CREDIT AGREEMENT
7.1 Advances
Grantor agrees to comply with the covenants and conditions of the Credit Agreement.
The Credit Agreement provides for the disbursement of loan funds with respect to the
construction of Improvements on the Land and for other matters described therein. The
Credit Agreement is hereby incorporated herein and made a part of this Deed of Trust. All
advances made by Beneficiary pursuant to the Credit Agreement shall constitute a Secured
Obligation, and such advances shall be deemed to be obligatory. Any sums advanced by
Beneficiary for the purpose of financing tenant improvements for the benefit of Grantor shall
be treated as advances pursuant to the Credit Agreement and shall constitute a Secured
Obligation. All such sums shall bear interest from the date of disbursement at the rate stated
in the Notes.
7.2. Assignment of Claims
From time to time as Beneficiary deems necessary to protect Beneficiary's interest,
Grantor shall, upon request of Beneficiary, execute and deliver to Beneficiary in such form as
DEED OF TRUST PAGE 22
112187-5149/S8013340.130] Execution Copy
•
Beneficiary shall direct, assignments of any and all rights or claims which relate to the
construction of the Improvements, and which Grantor may have against any party supplying
or who has supplied labor, materials or services in connection with the construction of the
Improvements.
7.3. Default Under the Credit Agreement
Upon an Event of Default, Beneficiary may, at its option, with or without entry upon
the Property, exercise any of the rights or remedies provided in the Credit Agreement,
exercise any of the rights or remedies provided in this Deed of Trust, or do both.
8. EVENTS OF DEFAULT
Z+]
__ 8.1 Events of Default
Any one or more of the following is an "Event of Default ":
(a) Grantor fails to make any payment under the Notes, this Deed of Trust, or any
of the other Loan Documents within five days after the due date.
orNt
• o (b) There is a default under any of the Permitted Exceptions, if not cured within
4r4 any cure period given in the Permitted Exceptions.
(c) There is an Event of Default as defined in any of the other Loan Documents.
(d) Grantor 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 30 days
after Beneficiary's delivery of written demand to Grantor.
(e) There is an Event of Default under the Indemnity Agreement.
(f) Grantor 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 Grantor or any
guarantor or any trustee of Grantor or any guarantor, and the petition is not dismissed within
60 days after filing.
(g) A decree or order is entered for the appointment of a trustee, receiver or
liquidator for Grantor or any guarantor or the property of Grantor or any guarantor, and such
decree or order is not vacated within 60 days after the date of entry.
DEED OF TRUST
112187- 31491SB013340.130)
PAGE 23
Exavtion Copy
(h) Grantor or any guarantor commences any proceeding for dissolution or
liquidation; or any such proceeding is commenced against Grantor or any guarantor and the
proceeding is not dismissed within 60 days after the date of commencement.
(i) Grantor 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.
(j) There is an attachment, execution or other judicial seizure of any property of
Grantor or any guarantor and such seizure is not discharged within ten days.
(k) Any representation or disclosure made to Beneficiary by Grantor or any
guarantor in connection with the Loan proves to be materially false or misleading when made,
whether or not that representation or disclosure is expressly set forth in the Loan Documents.
er, (1) A default occurs under any other indebtedness now or hereafter owing to
Beneficiary on which Grantor 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.
(m) Grantor fails to pay or perform any obligations under any Property Lease after
the expiration of any applicable grace period.
(n) Grantor fails to pay or perform any obligation under its unconditional guaranty
dated as of January I- 2002 for the benefit of Beneficiary, whereby Grantor guarantees
payment and performance of the obligations of WMR, LLC to Beneficiary.
8.2 Inapplicability of Cure Periods
All cure periods provided in this Deed of Trust or the other Loan Documents shall be
inapplicable if, in Beneficiary's reasonable judgment, the default is not capable of being cured
within the time allowed, or a delay in Beneficiary's enforcement of its rights and remedies is
likely to result in a material impairment of its security.
8.3 Form of Notice
At Beneficiary's option, any written notice of default given to Grantor under
Section 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 Beneficiary may elect.
DEED OF TRUST
/ 12187.3149/SB013340.130)
PAGE 24
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9. REMEDIES
• -
9.1 Acceleration Upon Default; Additional Remedies
Upon any Event of Default, Beneficiary may, at its option and without notice to or
demand upon Grantor, exercise any one or more of the following actions:
(a) Declare all the Secured Obligations immediately due and payable.
(b) Bring a court action to enforce the provisions of this Deed of Trust or any of
the other Loan Documents.
(c) Foreclose this Deed of Trust as a mortgage.
C1-3 (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.
(e) Obtain a deficiency judgment if the net sales proceeds of any sale of the
cv Property under the power of sale granted by this Deed of Trust are insufficient to pay in full
o all of the Secured Obligations.
(f) Elect to exercise any and all rights arising out of or related to any Property
Lease and the Leases and the Rents.
(g) Exercise any or all of the other rights and remedies under this Deed of Trust
and the other Loan Documents.
(h) Exercise any other right or remedy available under law or in equity.
9.2 Prepayment Premium
If the Notes provides for payment of a prepayment premium, such prepayment
premium shall be payable by Grantor with respect to any voluntary or involuntary payment of
principal under the Notes before the maturity date stated in the Notes, except as otherwise
specifically provided in the Loan Documents. Grantor 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 Notes by Beneficiary.
9.3 Exercise of Power of Sale
For any sale under the power of sale granted by this Deed of Trust, Beneficiary or
Trustee shall record and give all notices required by law and then, upon the expiration of such
DEED OF TRUST
(12187-5149/513013340.130)
PAGE 25
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•
time as is required by law, Trustee may sell the Property upon any terms and conditions
specified by Beneficiary and permitted by applicable law.
Trustee may postpone any sale by public announcement at the time and place noticed
for the sale. If the Property includes several lots or parcels, Beneficiary 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 property, then Trustee shall be acting as the agent of Beneficiary 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 facie evidence of such compliance
• and conclusive evidence thereof in favor of bona fide purchasers and encumbrancers for value.
Cr' 9.4 Application of Sale Proceeds
cv
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:
CV
• G
(a) Payment of the costs and expenses of the sale; including, without limitation,
Trustee's fees, reasonable 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
Notes, or the maximum rate permitted by law.
(b) Payment of all sums expended by Beneficiary 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 Notes, or the maximum rate permitted by law.
(c) Payment of all other Secured Obligations in any order that Beneficiary
chooses.
(d) The remainder, if any, to the person or persons legally entitled to it.
9.5 Waiver of Order of Sale and Marshalling
Beneficiary 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, Grantor, 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
DEED OF TRUST PAGE 26
(12187- 5149/58013340.130) Execution Copy
•
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 Nonwaiver 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
o 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 Notes, or the
o maximum rate permitted by law, shall be added to and become a part of the amount required
c..., to be paid for redemption from such sale.
CO
`\' 9.8 Foreclosure Subject to Tenancies
Beneficiary 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
by law or equity or any other agreement between Beneficiary and Grantor, and may be
exercised concurrently, independently or successively, in any order whatsoever. Beneficiary
may exercise any of its rights and remedies at its option without regard to the adequacy of its
security.
9.10 Beneficiary's and Trustee's Expenses
Grantor shall pay all of Beneficiary'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, title charges, and expenses incurred
in any bankruptcy, reorganization, liquidation, receivership or similar proceeding. All such
sums, with interest thereon, shall be additional indebtedness of Grantor secured by this Deed
DEED OF TRUST PAGE 27
[12187- 5149/SB013340.130] Execution Copy
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 Notes, or the maximum rate
permitted by law.
10. GENERAL
•
10.1 No Offset
Grantor's obligation to timely pay and perform all obligations under the Notes, 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
Grantor or any guarantor may have or claim against Beneficiary or any other person or entity.
The foregoing shall not constitute a waiver of any claim or demand which Grantor or any
guarantor may have in damages or otherwise against Beneficiary or any other person or entity;
provided that Grantor shall maintain a separate action thereon.
cr�r
10.2 Application of Payments
° Except as applicable law or this Deed of Trust may otherwise provide, all payments
received by Beneficiary under the Notes or this Deed of Trust shall be applied by Beneficiary
CZ) in the following order of priority: (a) Beneficiary's and Trustee's expenses incurred in any
• efforts to enforce any terms of this Deed of Trust; (b) interest payable on advances made to
protect the security of this Deed of Trust; (c) principal of such advances; (d) amounts payable
to Beneficiary by Grantor under Section 3 for reserves; (e) interest and late charges payable
on the Notes; (t) principal of the Notes; and (g) any other Secured Obligations in such order
as Beneficiary, at its option, may determine; provided, however, that Beneficiary may, at its
option, apply any such payments received to interest on or principal of the Notes 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 Beneficiary to obtain an appraisal of the
Property, Grantor shall reimburse Beneficiary on demand for payment of the costs of such
appraisal.
10.4 Imposition of Tax
For purposes of this Section, "Tax" shall mean:
DEED OF TRUST
[1118?- 5149/58013340.130)
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N
DEED OF TRUST
[12187,5149/0013340.130)
(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 Beneficiary 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) Grantor may lawfully pay the Tax without causing any resulting
economic disadvantage or increase of tax to Beneficiary or Trustee; and (ii) Grantor pays the
Tax (including any tax on the payment made) within 30 days after notice from Beneficiary that
the tax law has been enacted.
10.5 Reconveyance
Upon payment of all Secured Obligations, Beneficiary 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, Beneficiary 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.
10.7 Beneficiary's Powers
Without affecting the liability of any person for payment or performance of the
Secured Obligations or any of Beneficiary's rights or remedies, Beneficiary, 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
PAGE 29
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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 easement 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.
Grantor shall pay Beneficiary a reasonable service charge, together with such title
insurance premiums and attorneys' fees as may be incurred at Beneficiary's option, for any
such action if taken at Grantor's request.
10.8 Subdivision
Grantor hereby consents to a subdivision of the Property, if Beneficiary, 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 Beneficiary to foreclose on only a portion of the
Property.
10.9 Subrogation
Beneficiary shall be subrogated for further security to the lien, although released of
° record, of any and all encumbrances discharged, in whole or in part, by the proceeds of the
N Notes or any other indebtedness secured hereby.
0
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 Iaw. 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 Grantor shall be refunded. Beneficiary may refund such
excess either by treating the excess as a prepayment of principal under the Notes or by making
a direct payment to Grantor. If Beneficiary elects to treat the excess as a prepayment of
principal, Grantor shall not be obligated to pay any prepayment premium required under the
Notes. The provisions of this Section shall control over any inconsistent provision in the Loan
Documents.
10.11 Additional Documents; Power of Attorney
Grantor, from time to time, shall execute, acknowledge and deliver to Beneficiary
upon request, and hereby irrevocably appoints Beneficiary its attorney -in -fact, exercisable
upon an Event of Default, to execute, acknowledge, deliver and if appropriate file and record,
such security agreements, assignments for security purposes, assignments absolute, financing
statements, affidavits, certificates and other documents, in form and substance satisfactory to
DEED OF TRUST
1 12187- 5149/SB013340.1301
PAGE 30
Exaction Copy
10.12 Waiver of Statute of Limitations
10.15 Notice
DEED OF TRUST
112187- 5149/SB013340.130)
Beneficiary, as Beneficiary 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. Grantor shall pay to Beneficiary upon request therefor all
costs and expenses incurred in connection with the preparation, execution, recording and
filing of any such document.
To the full extent Grantor may do so, Grantor 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 Notes or any other obligation secured by this Deed of Trust.
10.13 Forbearance by Beneficiary Not a Waiver
Any forbearance by Beneficiary in exercising any right or remedy hereunder, or
otherwise afforded by applicable law, shall not be a waiver of or preclude the exercise of any
o right or remedy, and no waiver by Beneficiary of any particular default shall constitute a
c waiver of any other default or of any similar default in the future. Without limiting the
generality of the foregoing, the acceptance by Beneficiary of payment of any of the Secured
N Obligations after the due date thereof shall not be a waiver of Beneficiary'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 Beneficiary shall not be a waiver of Beneficiary's right to accelerate
N the maturity of the indebtedness secured by this Deed of Trust, nor shall Beneficiary's receipt
of any awards, proceeds or damages under Sections 2.3 and 2.7 operate to cure or waive
Grantor's default in payment of the Secured Obligations.
10.14 Entire Agreement; Modifications and Waivers
This Deed of Trust together with the other Loan Documents constitute the entire
understanding and agreement of Grantor and Beneficiary with respect to the Loan. The Loan
Documents supercede all prior negotiations, discussions, and agreements with respect to the
Loan, may not be contradicted by evidence of any alleged oral agreement, and may not be
waived, changed, discharged or terminated except by an instrument in writing signed by the
party against whom enforcement of any waiver, change, discharge or termination is sought.
Any notice to Grantor under this Deed of Trust shall be to the address noted above or
such other address as may be designated by Grantor in writing and shall be deemed to have
been given on the date delivered in the case of personal delivery or, if mailed, three days after
the postmark thereof
PAGE 31
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av
•
10.16 Governing Law; Severability; Captions
Except to the extent that the federal laws of the United States of America provide
Beneficiary with greater rights or remedies, 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 law, 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 Sections 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 "Grantor" means Grantor 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
"Beneficiary" means Beneficiary herein named, together with any subsequent owner or holder
'of the Notes or any interest therein, including pledgees, assignees and participants.
0
10.18 Successors and Assigns; Agents
"' This Deed of Trust shall bind and inure to the benefit of the parties hereto and their
cr respective heirs, devisees, legatees, administrators, executors, successors and assigns, subject
o to the provisions of Section 4. In exercising any rights hereunder or taking actions provided
N for herein, Beneficiary and Trustee may act through their respective employees, agents or
c independent contractors as authorized by Beneficiary and Trustee.
CZ
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 Grantor herein.
10.21 Request for Notice
Grantor 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.
DEED OF TRUST
112187- 5149!SB013340.130]
PAGE 32
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•
10.22 Assignment of Loan Documents
Beneficiary may assign the Loan Documents in whole or in part. Beneficiary may
make available to any proposed assignee or participant all credit and financial data with
respect to Grantor and any guarantor as may be in the possession of Beneficiary. Grantor
agrees to provide any additional information that any proposed assignee or participant may
reasonably request.
10.23 Estoppel Certificate
Grantor shall, within ten days after receipt of Beneficiary's written request, furnish
Beneficiary or any other party designated by Beneficiary 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.
10.24 Certain Obligations Unsecured
Notwithstanding anything to the contrary set forth herein or any of the Loan
Documents, this Deed of Trust shall not secure the following obligations (the "Unsecured
Obligations "): (a) any obligations evidenced by or arising under the Indemnity Agreement,
and (b) any other obligations in this Deed of Trust or in any of the other Loan Documents to
the extent that such other obligations relate specifically to the presence on the Property of
Hazardous Materials are the same or have the same effect as any of the obligations
evidenced by or arising under the Indemnity Agreement. Any breach or default with respect
to the Unsecured Obligations shall constitute an Event of Default hereunder, notwithstanding
the fact that such Unsecured Obligations are not secured by this Deed of Trust. Nothing in
this Section shall, in itself, impair or limit Beneficiary's right to obtain a judgment in
accordance with applicable law after foreclosure for any deficiency in recovery of all
obligations that are secured by this Deed of Trust following foreclosure.
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LEND MONEY,
EXTEND CREDIT, OR FORBEAR FROM ENFORCING REPAYMENT OF A DEBT
ARE NOT ENFORCEABLE UNDER WASHINGTON LAW.
DEED OF TRUST
[ 121874149/S13013340.130J
PAGE 33
Execution Copy
DEED OF TRUST
[121 87-51491S13013340.130]
•
IN WITNESS WHEREOF, Grantor has executed this Deed of Trust as of the date
first above written.
"Grantor"
NORTHWEST CONTAINER SERVICES, INC., an
Oregon Corporation
By:
PAGE 34
Execution Copy
STATE OF WASHINGTON
COUNTY OF KIN ir
On this / 7day of January, 2002, before me, the undersigned, a Notary Public in
and fo the State of Washington, duly commissioned and sworn, personally appeared
, to me known to be the person who
signed as C �11(1L of NORTHWEST CONTAINER
SERVICES, INC., the corporation that executed the within and foregoing instrument, and
acknowledged said instrument to be the free and voluntary act and deed of said corporation
for the uses and purposes therein mentioned, and on oath stated that - was duly
elected, qualified and acting as said officer of the corporation, that hs__. was authorized to
execute said instrument and that the seal affixed, if any, is the corporate seal of said
corporation.
IN WITNESS 'WHEREOF I have hereunto set my hand and official seal the day and
year first above written.
DEED OF TRUST
[12187- 51491SB013340.130]
•
) ss.
O1 l,,,,,
•., g , .
{4OTARy
=�h= PlBLC
• n r'
Or wasv
'''I,,,,1111
(Print or stamp name of Notary)
NOTARY PUBLIC in and forth State
of Washington, residing at &m
My appointment expires: D to • (g. 454
PAGE 35
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•
EXHIBIT A
to
DEED OF TRUST
Leases
1. Lease, by and between Container Properties, L.L.C., a Washington limited liability
company, and Northwest Container Services, Inc., an Oregon corporation, dated July
10, 1998 ( "Container Lease "), covering certain property more particularly described in
Exhibit B -1.
2. Intentionally Omitted
EXHIBIT A TO DEED OF TRUST
112187.5149/SB013340. l 30l
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LINE A:
EXHIBIT A TO DEED OF TRUST
(12187- 5149/SB013340.130)
EXHIBIT B-1
to
DEED OF TRUST
•
Container Lease Legal Description
THAT PORTION OF TRACTS 1 AND 2 OF THE MEADOWS, ACCORDING TO THE
PARTITION MAP OF PART OF THE FRANCIS MC NATT DONATION LAND CLAIM
NO. 38 FILED IN KING COUNTY SUPERIOR COURT CAUSE NO. 120091, AND OF
THE ABANDONED BED OF THE DUWAMISH RIVER, ALL LOCATED IN
SECTION 33, TOWNSHIP 24 NORTH, RANGE 4 EAST, W.M., IN KING COUNTY,
WASHINGTON;
AND ALL LYING WESTERLY OF THE WESTERLY MARGINS OF EAST MARGINAL
WAY SOUTH AND ALSO WESTERLY OF THE PARCEL OF LAND ADJOINING EAST
MARGIN WAY WHICH WAS CONVEYED TO GREAT NORTHERN RAILWAY
COMPANY BY DEED RECORDED UNDER FILE NO. 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 B:
BEGINNING ON THE WESTERLY LINE OF EAST MARGIN WAY SOUTH, WHICH
POINT BEARS NORTH 89 °15'54" WEST 2470.01 FEET ALONG THE DONATION
CLAIM LINE AND SOUTH 23 °40'59" EAST 648.77 FEET ALONG THE WESTERLY
LINE OF EAST MARGINAL WAY SOUTH FROM THE INTERSECTION OF THE LINE
BETWEEN THE DONATION CLAIMS OF FRANCIS MC NATT AND HENRY VAN
ASSELT WITH THE EAST LINE OF SECTION 33, TOWNSHIP 24 NORTH, RANGE 4
EAST, W.M., IN KING COUNTY, WASHINGTON;
RUNNING THENCE WEST 1574.72 FEET TO THE EASTERLY LINE OF
COMMERCIAL WATERWAY NO. 1;
THENCE SOUTH 15 °00'00" EAST ALONG SAID EASTERLY LINE 237.76 FEET TO
THE TRUE POINT OF BEGINNING OF SAID LINE A;
THENCE EAST 1053.10 FEET;
THENCE SOUTH 23 °02'00" EAST 46.03 FEET;
THENCE EAST 561.38 FEET TO THE WESTERLY MARGIN OF EAST MARGINAL
WAY SOUTH AND THE TERMINUS OF SAID LINE A;
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LINE B:
EXHIBIT A TO DEED OF TRUST
[ 1 2 1 87- 5 1 49/S B01334 0.130)
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 ALONG THE WESTERLY MARGIN OF EAST MARGINAL WAY
SOUTH FROM THE INTERSECTION OF THE LINE BETWEEN THE DONATION
CLAIMS OF FRANCIS MC NATT AND HENRY VAN ASSELT WITH THE EAST LINE
OF SECTION 33, TOWNSHIP 24 NORTH, RANGE 4 EAST, W.M., IN KING COUNTY,
WASHINGTON, SAID POINT BEING AT THE INTERSECTION OF THE WESTERLY
MARGIN OF EAST MARGIN 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 86 °54'59" WEST A DISTANCE OF 486.97 FEET;
THENCE NORTH 84 °1704" WEST A DISTANCE OF 117.00 FEET;
THENCE SOUTH 83 °57'56" 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 THE GREAT
NORTHERN RAILWAY COMPANY AS RESERVED IN DEED RECORDED UNDER
FILE NO. 4784818.
PAGE2
Execution Copy
Intentionally Omitted
EXHIBIT B TO DEED OF TRUST
11218?•3149/SB013340.130J
EXHIBIT B -2
to
DEED OF TRUST
SPS Lease Legal Description
PAGE I
Execution Copy