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Exhibit
10.66
Recording requested
by:
And when recorded mail
to:
Otten, Johnson,
Robinson,
Neff & Ragonetti,
P.C.
950 Seventeenth Street
Suite 1600
Denver, Colorado 80202
Attention: Cara D.
Hinshaw, Esq.
Tax Account Nos. R272228 and
R128925
DEED OF TRUST, SECURITY
AGREEMENT, FIXTURE FILING, FINANCING
STATEMENT AND
ASSIGNMENT OF LEASES AND RENTS
THIS DEED OF TRUST, SECURITY
AGREEMENT, FIXTURE FILING, FINANCING STATEMENT AND ASSIGNMENT OF
LEASES AND RENTS (this “Deed of Trust”) is given as of
November 7, 2007, by KBS ADP PLAZA, LLC, a Delaware limited
liability company (“Grantor”), to CHICAGO TITLE
INSURANCE COMPANY OF OREGON (“Trustee”), for the use
and benefit of AMERICAN GENERAL LIFE INSURANCE COMPANY, a Texas
corporation (“Beneficiary”).
Article 1
PARTIES, PROPERTY, AND
DEFINITIONS
The following terms and
references shall have the meanings indicated:
1.1 Beneficiary: The
Beneficiary named in the introductory paragraph of this Deed
of Trust, whose legal address is c/o AIG Global Investment
Corp., 1 SunAmerica Center, 38th Floor,
Century City, Los Angeles, California 90067-6022,
together with any future holder of the Note.
1.2 Chattels: All
goods, fixtures, inventory, equipment, building and other
materials, supplies, and other tangible personal property of every
nature, whether now owned or hereafter acquired by Grantor, used,
intended for use, or reasonably required in the construction,
development, or operation of the Property, together with all
accessions thereto, replacements and substitutions therefor, and
proceeds thereof.
1.3 Default: Any
matter which, with the giving of notice, passage of time, or both,
would constitute an Event of Default.
1.4 Environmental
Assessment: The Phase I Environmental Site Assessment
dated July 24, 2007 prepared by URS Corporation for the
benefit of Beneficiary.
1.5 Environmental
Claims: Any and all administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of
non-compliance or violation, investigations or proceedings relating
in any way to any Environmental Law (hereafter
“Claims”) or any permit issued under any such
Environmental Law, including without limitation (a) any and
all Claims by governmental or regulatory authorities for
enforcement, cleanup, removal, response, remedial or other actions
or damages pursuant to any applicable Environmental Law, and
(b) any and all Claims by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Substances or arising
from alleged injury or threat of injury to health, safety or the
environment.
1.6 Environmental Law:
Any federal, state or local law, whether common law, court or
administrative decision, statute, rule, regulation, ordinance,
court order or decree, or administrative order or any
administrative policy or guidelines concerning action levels of a
governmental authority (federal, state or local) now or hereafter
in effect relating to the environment, public health, occupational
safety, industrial hygiene, any Hazardous Substance (including,
without limitation, the disposal, generation, manufacture,
presence, processing, production, Release, storage, transportation,
treatment or use thereof), or the environmental conditions on,
under or about the Property, as amended and as in effect from time
to time (including, without limitation, the following statutes and
all regulations thereunder as amended and in effect from time to
time: the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, 42 U.S.C.
§§ 9601, et seq. ; the Superfund Amendments
and Reauthorization Act of 1986, Title III, 42 U.S.C.
§§ 11001, et seq. ; the Clean Air Act, 42
U.S.C. §§ 7401, et seq. ; the Safe Drinking
Water Act, 42 U.S.C. §§ 300(f), et seq. ; the
Solid Waste Disposal Act, 42 U.S.C. §§ 6901, et
seq. ; the Hazardous Materials Transportation Act, as amended,
49 U.S.C. §§ 5101, et seq. ; the Resource
Conservation and Recovery Act, as amended, 42 U.S.C.
§§ 6901, et seq. ; the Federal Water
Pollution Control Act, as amended, 33 U.S.C.
§§ 1251, et seq. ; the Toxic Substances
Control Act of 1976, 15 U.S.C. §§ 2601, et
seq. ; the Occupational Safety and Health Act, 29 U.S.C.
§§ 651, et seq. ; and any successor statutes
and regulations to the foregoing).
1.7 ERISA: The
Employee Retirement Income Security Act of 1974, as amended,
together with all rules and regulations issued
thereunder.
1.8 Event of Default:
As defined in Article 6.
1.9 Grantor: The
Grantor named in the introductory paragraph of this Deed of
Trust (Taxpayer I.D. No. 26-0607144; Organizational I.D.
No. 4395424), whose legal address is c/o KBS Capital Advisors
LLC, 620 Newport Center Drive, Suite 1300,
Newport Beach, California 92660, together with any future
owner of the Property or any part thereof or interest
therein.
1.10 Hazardous
Substances: Collectively, (a) any chemicals, materials or
substances defined as or included in the definition of
“hazardous substances,” “hazardous
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wastes,” “hazardous
materials,” “extremely hazardous wastes,”
“restricted hazardous wastes,” “toxic
substances,” “toxic pollutants,”
“contaminants” or “pollutants,” or words of
similar import, under any applicable Environmental Law; and
(b) any other chemical, material or substance, exposure to
which is prohibited, limited or regulated by any governmental
authority, including, without limitation, asbestos and
asbestos-containing materials in any form, lead-based paint, any
radioactive materials and polychlorinated biphenyls
(“PCBs”), or substances or compounds containing
PCBs.
1.11 Indemnitees:
Collectively, Beneficiary and Beneficiary’s officers,
directors, employees, agents, affiliates, successors and
assigns.
1.12 Insurance
Agreement: The Agreement Concerning Insurance Requirements of
even date herewith executed by Grantor for the benefit of
Beneficiary.
1.13 Intangible
Personalty: The right to use all trademarks and trade names and
symbols or logos used in connection therewith, or any modifications
or variations thereof, in connection with the operation of the
improvements existing or to be constructed on the Property,
together with all accounts, deposit accounts, letter of credit
rights, investment property, monies in the possession of
Beneficiary (including, without limitation, proceeds from
insurance, retainages and deposits for taxes and insurance),
Permits, contract rights (including, without limitation, rights to
receive insurance proceeds) and general intangibles (whether now
owned or hereafter acquired, and including proceeds thereof)
relating to or arising from Grantor’s ownership, use,
operation, leasing, or sale of all or any part of the Property,
specifically including but in no way limited to any right which
Grantor may have or acquire to transfer any development rights from
the Property to other real property, and any development rights
which may be so transferred.
1.14 Lease
Certificate: The Certificate Concerning Leases and Financial
Condition of even date herewith made by Grantor to Beneficiary
concerning Leases of the Property.
1.15 Leases: Any and
all leases, subleases and other agreements under the terms of which
any person other than Grantor has or acquires any right to occupy
or use the Property, or any part thereof.
1.16 Loan: The loan
from Beneficiary to Grantor evidenced by the Note.
1.17 Loan Application:
The Summary of Loan Terms executed as of July 31, 2007 on
behalf of Grantor and Beneficiary with respect to the
Loan.
1.18 Loan Documents:
The Note, all of the deeds of trust, mortgages and other
instruments and documents securing or executed and delivered in
connection with the Note, including this Deed of Trust, the Reserve
Agreement, the TI/LC Guaranty, the TI/LC Reserve Agreement, the
Insurance Agreement, the Lease Certificate and each other document
executed or delivered in connection with the transaction pursuant
to which the Note has been executed and delivered. The term
“Loan Documents” also includes all modifications,
extensions, renewals, and replacements of each document referred to
above.
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1.19 Material Adverse
Effect: The occurrence or existence of a condition or event
which would have a material adverse effect on (a) the
business, profits, operations or financial condition of Grantor,
(b) the ability of Grantor to pay any amounts under the Loan
Documents as they become due, or (c) the value of the
Property.
1.20 Note:
Grantor’s Amended and Restated Promissory Note of even date
herewith, payable to the order of Beneficiary in the principal face
amount of $20,900,000.00, the last payment under which is due on
October 1, 2013, or, if extended by Beneficiary pursuant to
its terms, October 1, 2018, unless such due date is
accelerated, together with all renewals, extensions and
modifications of such promissory note. All terms and provisions of
the Note are incorporated by this reference in this Deed of
Trust.
1.21 Permits: All
permits, licenses, certificates and authorizations necessary for
the beneficial development, ownership, use, occupancy, operation
and maintenance of the Property.
1.22 Permitted
Exceptions: The matters (excluding matters of survey) set forth
in Schedule B-I of the title insurance policy insuring the
lien created by this Deed of Trust, in form and substance
satisfactory to, and accepted by, Beneficiary, that Grantor has
caused to be delivered to Beneficiary in connection with the
Loan.
1.23 Property: The
tract or tracts of land described in Exhibit A attached,
together with the following:
(a) All buildings,
structures, and improvements now or hereafter located on such tract
or tracts, as well as all rights-of-way, easements, and other
appurtenances thereto;
(b) Any land lying between
the boundaries of such tract or tracts and the center line of any
adjacent street, road, avenue, or alley, whether opened or
proposed;
(c) All of the rents, income,
receipts, revenues, issues and profits of and from such tract or
tracts and improvements;
(d) All (i) water and
water rights (whether decreed or undecreed, tributary, nontributary
or not nontributary, surface or underground, or appropriated or
unappropriated); (ii) ditches and ditch rights;
(iii) spring and spring rights; (iv) reservoir and
reservoir rights; and (v) shares of stock in water, ditch and
canal companies and all other evidence of such rights, which are
now owned or hereafter acquired by Grantor and which are
appurtenant to or which have been used in connection with such
tract or tracts or improvements;
(e) All minerals, crops,
timber, trees, shrubs, flowers, and landscaping features now or
hereafter located on, under or above such tract or
tracts;
(f) All machinery, apparatus,
equipment, fittings, fixtures (whether actually or constructively
attached, and including all trade, domestic, and ornamental
fixtures) now or hereafter located in, upon, or under such tract or
tracts or improvements and used or usable in connection with any
present or future operation thereof, including but not limited to
all
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heating, air-conditioning, freezing,
lighting, laundry, incinerating and power equipment; engines;
pipes; pumps; tanks; motors; conduits; switchboards; plumbing,
lifting, cleaning, fire prevention, fire extinguishing,
refrigerating, ventilating, cooking, and communications apparatus;
boilers, water heaters, ranges, furnaces, and burners; appliances;
vacuum cleaning systems; elevators; escalators; shades; awnings;
screens; storm doors and windows; stoves; refrigerators; attached
cabinets; partitions; ducts and compressors; rugs and carpets;
draperies; and all additions thereto and replacements
therefor;
(g) All development rights
associated with such tract or tracts, whether previously or
subsequently transferred to such tract or tracts from other real
property or now or hereafter susceptible of transfer from such
tract or tracts to other real property;
(h) All awards and payments,
including interest thereon, resulting from the exercise of any
right of eminent domain or any other public or private taking of,
injury to, or decrease in the value of, any of such property;
and
(i) All other and greater
rights and interests of every nature in such tract or tracts and in
the possession or use thereof and income therefrom, whether now
owned or subsequently acquired by Grantor.
1.24 Release:
Disposing, discharging, injecting, spilling, leaking, leaching,
dumping, emitting, escaping, emptying, seeping, placing and the
like, into or upon any land or water or air, or otherwise entering
into the environment.
1.25 Reserve
Agreement: The Reserve Agreement of even date herewith by and
among Grantor, Beneficiary and the “Servicer”
referenced therein.
1.26 Secured
Obligations: All present and future obligations of Grantor to
Beneficiary evidenced by or contained in the Note, this Deed of
Trust and all other Loan Documents, whether stated in the form of
promises, covenants, representations, warranties, conditions, or
prohibitions or in any other form, excluding, however, the
provisions of Section 4.26 of this Deed of Trust. If the
maturity of the Note secured by this Deed of Trust is accelerated,
the Secured Obligations shall include an amount equal to any
prepayment fee or premium which would be payable under the terms of
the Note as if the Note were prepaid in full on the date of the
acceleration. If under the terms of the Note no voluntary
prepayment would be permissible on the date of such acceleration,
then the prepayment fee or premium to be included in the Secured
Obligations shall be equal to one hundred fifty percent
(150%) of the highest prepayment fee or premium set forth in
the Note, calculated as of the date of such acceleration, as if
prepayment were permitted on such date.
1.27 TI/LC Guaranty:
The Tenant Improvements and Leasing Commissions Guaranty Agreement
of even date herewith made by KBS REIT Properties, LLC, a Delaware
limited liability company, for the benefit of
Beneficiary.
1.28 TI/LC Reserve
Agreement: The Tenant Improvements and Leasing Commissions
Reserve Agreement of even date herewith by and among Grantor,
Beneficiary and the “Servicer” referenced
therein.
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1.29 Trustee: The
Trustee named in the introductory paragraph of this Deed of
Trust, whose address is 10135 SE Sunnyside Road, Suite 200,
Clackamas, Oregon 97015.
Article 2
GRANTING
CLAUSE
2.1 Grant to Trustee.
As security for the Secured Obligations, Grantor hereby grants,
bargains, sells, warrants and conveys the Property to Trustee, in
trust, with power of sale, for the use and benefit of Beneficiary,
and subject to all provisions hereof.
2.2 Security Interest to
Beneficiary. As additional security for the Secured
Obligations, Grantor hereby grants to Beneficiary a security
interest in the Property, Chattels and Intangible Personalty. To
the extent any of the Property, Chattels or Intangible Personalty
may be or have been acquired with funds advanced by Beneficiary
under the Loan Documents, this security interest is a purchase
money security interest. This Deed of Trust constitutes a security
agreement under the Uniform Commercial Code of the state in which
the Property is located (the “Code”) with respect to
any part of the Property, Chattels and Intangible Personalty that
may or might now or hereafter be or be deemed to be personal
property, fixtures or property other than real estate (all
collectively hereinafter called “Collateral”); all of
the terms, provisions, conditions and agreements contained in this
Deed of Trust pertain and apply to the Collateral as fully and to
the same extent as to any other property comprising the Property,
and the following provisions of this Section shall not limit
the generality or applicability of any other provisions of this
Deed of Trust but shall be in addition thereto:
(a) The Collateral shall be
used by Grantor solely for business purposes, and all Collateral
(other than the Intangible Personalty) shall be installed upon the
real estate comprising part of the Property for Grantor’s own
use or as the equipment and furnishings furnished by Grantor, as
landlord, to tenants of the Property;
(b) The Collateral (other
than the Intangible Personalty) shall be kept at the real estate
comprising a part of the Property, and shall not be removed
therefrom without the consent of Beneficiary (being the Secured
Party as that term is used in the Code); and the Collateral (other
than the Intangible Personalty) may be affixed to such real estate
but shall not be affixed to any other real estate;
(c) No financing statement
covering any of the Collateral or any proceeds thereof is on file
in any public office (except for financing statements that will be
terminated concurrently with the recording of this Deed of Trust);
and Grantor will, at its cost and expense, upon demand, furnish to
Beneficiary such further information and will execute and deliver
to Beneficiary such financing statements and other documents in
form satisfactory to Beneficiary and will do all such acts and
things as Beneficiary may at any time or from time to time
reasonably request or as may be necessary or appropriate to
establish and maintain a perfected first-priority security interest
in the Collateral as security for the Secured Obligations, subject
to no adverse liens or encumbrances; and Grantor will pay the cost
of filing the same or filing or recording such financing statements
or other documents and this instrument in all public offices
wherever filing or recording is deemed by Beneficiary to be
necessary or desirable;
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(d) The terms and provisions
contained in this Section and in Section 7.6 of this Deed
of Trust shall, unless the context otherwise requires, have the
meanings and be construed as provided in the Code; and
(e) This Deed of Trust
constitutes a financing statement under the Code with respect to
the Collateral. As such, this Deed of Trust covers all items of the
Collateral that are or are to become fixtures. The filing of this
Deed of Trust in the real estate records of the county where the
Property is located shall also operate as a fixture filing in
accordance with Section 79.0502 of the Code. Information
concerning the security interests created hereby may be obtained
from Beneficiary. Grantor is the “Debtor” and
Beneficiary is the “Secured Party” (as those terms are
defined and used in the Code) insofar as this Deed of Trust
constitutes a financing statement.
2.3 Environmental
Provisions Not Secured . Notwithstanding any provision of this
Deed of Trust or any other Loan Document, the obligations of
Grantor arising under Section 4.26 of this Deed of Trust are
not, and shall not be, Secured Obligations under this Deed of
Trust.
Article 3
GRANTOR’S
REPRESENTATIONS AND WARRANTIES
3.1 Warranty of Title.
Grantor represents and warrants to Beneficiary that:
(a) Grantor has good and
marketable fee simple title to the Property, and such fee simple
title is free and clear of all liens, encumbrances, security
interests and other claims whatsoever, subject only to the
Permitted Exceptions;
(b) Grantor is the sole and
absolute owner of the Chattels and the Intangible Personalty, free
and clear of all liens, encumbrances, security interests and other
claims whatsoever, subject only to the Permitted
Exceptions;
(c) This Deed of Trust is a
valid and enforceable first lien and security interest on the
Property, Chattels and Intangible Personalty, subject only to the
Permitted Exceptions; and
(d) Grantor, for itself and
its successors and assigns, hereby agrees to warrant and forever
defend, all and singular, all of the Property and property
interests granted and conveyed pursuant to this Deed of Trust,
against every person whomsoever lawfully claiming, or to claim, the
same or any part thereof;
The representations,
warranties and covenants contained in this Section shall
survive foreclosure of this Deed of Trust, and shall inure to the
benefit of Beneficiary.
3.2 Due Authorization.
If Grantor is other than a natural person, then each individual who
executes this document on behalf of Grantor represents and warrants
to Beneficiary that such execution has been duly authorized by all
necessary corporate, partnership, limited liability company or
other action on the part of Grantor. Grantor represents that
Grantor has obtained all consents and approvals required in
connection with the execution, delivery and performance of this
Deed of Trust.
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3.3 Other Representations
and Warranties. Grantor represents and warrants to Beneficiary
as follows:
(a) Grantor is a limited
liability company, duly organized, validly existing and in good
standing under the laws of the State of Delaware. Grantor is duly
authorized to transact business in and is in good standing under
the laws of the State of Oregon;
(b) The execution, delivery
and performance by Grantor of the Loan Documents are within
Grantor’s power and authority and have been duly authorized
by all necessary action;
(c) This Deed of Trust is,
and each other Loan Document to which Grantor is a party will, when
delivered hereunder, be valid and binding obligations of Grantor
enforceable against Grantor in accordance with their respective
terms, except as limited by equitable principles and bankruptcy,
insolvency and similar laws affecting creditors’
rights;
(d) The execution, delivery
and performance by Grantor of the Loan Documents will not
contravene any contractual or other restriction binding on or
affecting Grantor and will not result in or require the creation of
any lien, security interest, other charge or encumbrance (other
than pursuant hereto) upon or with respect to any of its
properties;
(e) The execution, delivery
and performance by Grantor of the Loan Documents does not
contravene any applicable law;
(f) No authorization,
approval, consent or other action by, and no notice to or filing
with, any court, governmental authority or regulatory body is
required for the due execution, delivery and performance by Grantor
of any of the Loan Documents or the effectiveness of any assignment
of any of Grantor’s rights and interests of any kind to
Beneficiary;
(g) No part of the Property,
Chattels, or Intangible Personalty is in the hands of a receiver,
no application for a receiver is pending with respect to any
portion of the Property, Chattels, or Intangible Personalty, and no
part of the Property, Chattels, or Intangible Personalty is subject
to any foreclosure or similar proceeding;
(h) Grantor has not made any
assignment for the benefit of creditors, nor has Grantor filed, or
had filed against it, any petition in bankruptcy;
(i) There is no pending or,
to the best of Grantor’s knowledge, threatened, litigation,
action, proceeding or investigation, including, without limitation,
any condemnation proceeding, against Grantor or the Property before
any court, governmental or quasi-governmental, arbitrator or other
authority;
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(j) Grantor is a
“non-foreign person” within the meaning of
Sections 1445 and 7701 of the United States Internal Revenue
Code of 1986, as amended, and the regulations issued
thereunder;
(k) Except as otherwise
disclosed by the survey made available by Grantor to Beneficiary,
access to and egress from the Property are available and provided
by public streets, and Grantor has no knowledge of any federal,
state, county, municipal or other governmental plans to change the
highway or road system in the vicinity of the Property or to
restrict or change access from any such highway or road to the
Property;
(l) All public utility
services necessary for the operation of all improvements
constituting part of the Property for their intended purposes are
available at the boundaries of the land constituting part of the
Property, including water supply, storm and sanitary sewer
facilities, and natural gas, electric, telephone and cable
television facilities;
(m) Except as otherwise
disclosed to Beneficiary in writing prior to the date hereof, and
to the best of Grantor’s knowledge, the Property is located
in a zoning district that permits the development, use and
operation of the Property as it is currently operated as a
permitted, and not as a non-conforming use. Except as otherwise
disclosed to Beneficiary in writing prior to the date hereof, and
to the best of Grantor’s knowledge, the Property complies in
all respects with all zoning ordinances, regulations, requirements,
conditions and restrictions, including but not limited to deed
restrictions and restrictive covenants, applicable to the
Property;
(n) Except as otherwise
disclosed to Beneficiary in writing prior to the date hereof, and
to the best of Grantor’s knowledge, there are no special or
other assessments for public improvements or otherwise now
affecting the Property, nor does Grantor know of any pending or
threatened special assessments affecting the Property or any
contemplated improvements affecting the Property that may result in
special assessments. Except for the tax exceptions set forth in the
lease to Oregon Health & Science University, a qualifying
tax-exempt organization under Oregon state law, there are no tax
abatements or exceptions affecting the Property;
(o) Grantor has filed all tax
returns it is required to have filed, and has paid all taxes as
shown on such returns or on any assessment received pertaining to
the Property;
(p) Grantor has not received
any notice from any governmental body having jurisdiction over the
Property as to any violation of any applicable law, or any notice
from any insurance company or inspection or rating bureau setting
forth any requirements as a condition to the continuation of any
insurance coverage on or with respect to the Property or the
continuation thereof at premium rates existing at present which
have not been remedied or satisfied;
(q) Grantor is not in
default, in any manner which would adversely affect its properties,
assets, operations or condition (financial or otherwise), in the
performance, observance or fulfillment of any of the obligations,
covenants or conditions set forth in any agreement or instrument to
which it is a party or by which it or any of its properties, assets
or revenues are bound;
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(r) Except as set forth in
the Lease Certificate, there are no occupancy rights (written or
oral), Leases or tenancies presently affecting any part of the
Property. The Lease Certificate contains a true and correct
description of all Leases presently affecting the Property. No
written or oral agreements or understandings exist between Grantor
and the tenants under the Leases described in the Lease Certificate
that grant such tenants any rights greater than those described in
the Lease Certificate or that are in any way inconsistent with the
rights described in the Lease Certificate;
(s) There are no options,
purchase contracts or other similar agreements of any type (written
or oral) presently affecting any part of the Property;
(t) Except as otherwise
disclosed to Beneficiary in writing prior to the date hereof, there
exists no brokerage agreement with respect to any part of the
Property;
(u) Except as otherwise
disclosed to Beneficiary in writing prior to the date hereof,
(i) there are no contracts presently affecting the Property
(“Contracts”) having a term in excess of one hundred
eighty (180) days or not terminable by Grantor (without
penalty) on thirty (30) days’ notice; (ii) Grantor
has heretofore delivered to Beneficiary true and correct copies of
each of the Contracts together with all amendments thereto;
(iii) Grantor is not in default of any obligations under any
of the Contracts; and (iv) the Contracts represent the
complete agreement between Grantor and such other parties as to the
services to be performed or materials to be provided thereunder and
the compensation to be paid for such services or materials, as
applicable, and except as otherwise disclosed herein, such other
parties possess no unsatisfied claims against Grantor. Grantor is
not in default under any of the Contracts and no event has occurred
which, with the passing of time or the giving of notice, or both,
would constitute a default under any of the Contracts;
(v) To the best of
Grantor’s knowledge, Grantor has obtained all Permits
necessary for the operation, use, ownership, development, occupancy
and maintenance of the Property as an office complex, as it is
currently being operated. To the best of Grantor’s knowledge,
none of the Permits has been suspended or revoked, and all of the
Permits are in full force and effect, are fully paid for, and
Grantor has made or will make application for renewals of any of
the Permits prior to the expiration thereof;
(w) All insurance policies
held by Grantor relating to or affecting the Property are in full
force and effect and shall remain in full force and effect until
all Secured Obligations are satisfied. Grantor has not received any
notice of default or notice terminating or threatening to terminate
any such insurance policies. Grantor has made or will make
application for renewals of any of such insurance policies prior to
the expiration thereof;
(x) Grantor either currently
complies with or is not subject to ERISA. Neither the making of the
Loan nor the exercise by Beneficiary of any of its rights under the
Loan Documents constitutes or will constitute a non-exempt,
prohibited transaction under ERISA;
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(y) Grantor’s exact
legal name is correctly set out in the introductory
paragraph of this Deed of Trust. Grantor’s
organizational identification number is correctly set forth in the
definition of “Grantor” set forth in Article 1
hereof. Grantor’s location (as such term is used in
Section 5.8 hereof) is the State of Delaware;
(z) to the best of
Grantor’s knowledge, except as disclosed in the Environmental
Assessment, Hazardous Substances have not at any time been
generated, used, treated or stored on, or transported to or from
the Property in any quantity or manner which violates any
Environmental Law;
(aa) to the best of
Grantor’s knowledge, except as disclosed in the Environmental
Assessment, Hazardous Substances have not at any time been Released
(hereinafter defined) or disposed of on the Property in any
quantity or manner which violates any Environmental Law;
(bb) to the best of
Grantor’s knowledge, except as disclosed in the Environmental
Assessment, Grantor is in compliance with all applicable
Environmental Laws with respect to the Property and the
requirements of any permits issued under such Environmental Laws
with respect to the Property;
(cc) to the best of
Grantor’s knowledge, there are no past, pending or threatened
Environmental Claims against Grantor or the Property;
(dd) to the best of
Grantor’s knowledge, except as disclosed in the Environmental
Assessment, there is no condition or occurrence at the Property
that could reasonably be anticipated (i) to form the basis of
any Environmental Claim against Grantor or the Property, or
(ii) to cause the Property to be subject to any restrictions
on the ownership, occupancy, use or transferability thereof under
any Environmental Law; and
(ee) to the best of
Grantor’s knowledge, except as disclosed in the Environmental
Assessment, there are not now and never have been any underground
storage tanks located on the Property.
3.4 Continuing Effect.
Grantor shall be liable to Beneficiary for any damage suffered by
Beneficiary if any of the foregoing representations are inaccurate
as of the date hereof, regardless when such inaccuracy may be
discovered by, or result in harm to, Beneficiary. Grantor further
represents and warrants that the foregoing representations and
warranties, as well as all other representations and warranties of
Grantor to Beneficiary relative to the Loan Documents, shall
survive termination of this Deed of Trust.
Article 4
GRANTOR’S
AFFIRMATIVE COVENANTS
4.1 Payment of Note.
Grantor will pay all principal, interest, and other sums payable
under the Note, on the date when such payments are due, without
notice or demand.
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4.2 Performance of Other
Obligations. Grantor will promptly and strictly perform and
comply with all other covenants, conditions, and prohibitions
required of Grantor by the terms of the Loan Documents.
4.3 Other
Encumbrances. Grantor will promptly and strictly perform and
comply with all covenants, conditions, and prohibitions required of
Grantor in connection with any other encumbrance affecting the
Property, the Chattels, or the Intangible Personalty, or any part
thereof, or any interest therein, regardless of whether such other
encumbrance is superior or subordinate to the lien
hereof.
4.4 Payment of
Taxes.
(a) Property Taxes .
Unless Grantor is depositing money into reserves pursuant to
Section 4.4(b), Grantor will (i) pay, before delinquency,
all taxes and assessments, general or special, which may be levied
or imposed at any time against Grantor’s interest and estate
in the Property, the Chattels, or the Intangible Personalty, and
(ii) within ten days after each payment of any such tax or
assessment, Grantor will deliver to Beneficiary, without notice or
demand, an official receipt for such payment. At
Beneficiary’s option, Beneficiary may retain the services of
a firm to monitor the payment of all taxes and assessments relating
to the Property, the cost of which shall be borne by
Grantor.
(b) Deposit for Taxes
. On or before the date hereof, Grantor shall deposit with
Beneficiary an amount equal to 1/12th of the amount which
Beneficiary estimates will be required to make the next annual
payment of taxes, assessments, and similar governmental charges
referred to in this Section (collectively, the “Tax
Reserves”), multiplied by the number of whole or partial
months that have elapsed since the date one month prior to the most
recent due date for such taxes, assessments and similar
governmental charges. Thereafter, with each monthly payment under
the Note, Grantor shall deposit with Beneficiary an amount equal to
1/12th of the amount which Beneficiary estimates will be required
to pay the next annual payment of taxes, assessments, and similar
governmental charges referred to in this Section. The purpose of
these provisions is to provide Beneficiary with sufficient funds on
hand to pay all such taxes, assessments, and other governmental
charges thirty (30) days before the date on which they become
past due. If the Beneficiary, in its sole discretion, determines
that the funds reserved hereunder are, or will be, insufficient,
Grantor shall upon demand pay such additional sums as Beneficiary
shall determine necessary and shall pay any increased monthly
charges requested by Beneficiary. Provided no Event of Default
exists hereunder, Beneficiary will apply the amounts so deposited
to the payment of such taxes, assessments, and other charges when
due, but in no event will Beneficiary be liable for any interest on
any amount so deposited, and any amount so deposited may be held
and commingled with Beneficiary’s own funds. Notwithstanding
anything to the contrary in this Section 4.4(b), the initial
Grantor named herein shall only be required to deposit Tax Reserves
with Beneficiary following the occurrence and during the
continuance of any Event of Default.
(c) Intangible Taxes .
If by reason of any statutory or constitutional amendment or
judicial decision adopted or rendered after the date hereof, any
tax, assessment, or similar charge is imposed against the Note,
against Beneficiary, or against any interest of Beneficiary in any
real or personal property encumbered hereby, Grantor will pay such
tax,
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assessment, or other charge before
delinquency and will indemnify Beneficiary against all loss,
expense, or diminution of income in connection therewith. In the
event Grantor is unable to do so, either for economic reasons or
because the legal provisions or decisions creating such tax,
assessment or charge forbid Grantor from doing so, then the Note
will, at Beneficiary’s option, become due and payable in full
upon thirty (30) days’ notice to Grantor.
(d) Right to Contest .
Notwithstanding any other provision of this Section, Grantor will
not be deemed to be in default solely by reason of Grantor’s
failure to pay any tax, assessment or similar governmental charge
so long as, in Beneficiary’s judgment, each of the following
conditions is satisfied:
(i) Grantor is engaged in and
diligently pursuing in good faith administrative or judicial
proceedings appropriate to contest the validity or amount of such
tax, assessment, or charge; and
(ii) Grantor’s payment
of such tax, assessment, or charge would necessarily and materially
prejudice Grantor’s prospects for success in such
proceedings; and
(iii) Nonpayment of such tax,
assessment, or charge will not result in the loss or forfeiture of
any property encumbered hereby or any interest of Beneficiary
therein; and
(iv) Grantor deposits with
Beneficiary, as security for such payment which may ultimately be
required, a sum equal to the amount of the disputed tax, assessment
or charge plus the interest, penalties, advertising charges, and
other costs which Beneficiary estimates are likely to become
payable if Grantor’s contest is unsuccessful.
If Beneficiary determines
that any one or more of such conditions is not satisfied or is no
longer satisfied, Grantor will pay the tax, assessment, or charge
in question, together with any interest and penalties thereon,
within fifteen (15) days after Beneficiary gives notice
of such determination.
4.5 Maintenance of
Insurance.
(a) Coverages Required
. Grantor shall maintain or cause to be maintained, with
financially sound and reputable insurance companies or associations
satisfactory to Beneficiary, all insurance required under the terms
of the Insurance Agreement, and shall comply with each and every
covenant and agreement contained in the Insurance Agreement. In
addition, unless otherwise approved by Beneficiary, Grantor shall
maintain or cause to be maintained, with financially sound and
reputable insurance companies or associations satisfactory to
Beneficiary, the same environmental insurance coverages, with
Beneficiary named as an additional insured, as are in effect as of
the date of this Deed of Trust.
WARNING
Unless you provide us with
evidence of insurance coverage as required by our contract or loan
agreement, we may purchase
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insurance at your expense to
protect our interest, following written notice to you. This
insurance may, but need not, also protect your interest. If the
collateral becomes damaged, the coverage we purchase may not pay
any claim you make or any claim made against you. You may later
cancel this coverage by providing evidence that you have obtained
property coverage elsewhere.
You are responsible for the
cost of any insurance purchased by us. The cost of this insurance
may be added to your contract or loan balance. If the cost is added
to your contract or loan balance, the interest rate on the
underlying contract or loan will apply to this added amount. The
effective date of coverage may be the date your coverage lapsed or
the date you failed to provide proof of coverage.
The coverage we purchase may
be considerably more expensive than insurance you can obtain on
your own and may not satisfy the need for property damage coverage
or any mandatory liability insurance imposed by applicable
law.
(b) Renewal Policies .
Not less than thirty (30) days prior to the expiration date of
each insurance policy required pursuant to the Insurance Agreement,
Grantor will deliver to Beneficiary an appropriate renewal policy
(or a certified copy thereof), together with evidence satisfactory
to Beneficiary that the applicable premium has been
prepaid.
(c) Deposit for
Premiums . On or before the date hereof, Grantor shall deposit
with Beneficiary an amount equal to 1/12th of the amount which
Beneficiary estimates will be required to make the next annual
payments of the premiums for the policies of insurance referred to
in this Section (the “Insurance Reserves”),
multiplied by the number of whole and partial months which have
elapsed since the date one month prior to the most recent policy
anniversary date for each such policy. Thereafter, with each
monthly payment under the Note, Grantor will deposit an amount
equal to 1/12th of the amount which Beneficiary estimates will be
required to pay the next required annual premium for each insurance
policy referred to in this Section. The purpose of these provisions
is to provide Beneficiary with sufficient funds on hand to pay all
such premiums thirty (30) days before the date on which they
become past due. If Beneficiary, in its sole discretion, determines
that the funds reserved hereunder are, or will be, insufficient,
Grantor shall upon demand pay such additional sums as Beneficiary
shall determine necessary and shall pay any increased monthly
charges requested by Beneficiary. Provided no Event of Default
exists hereunder, Beneficiary will apply the amounts so deposited
to the payment of such insurance premiums when due, but in no event
will Beneficiary be liable for any interest on any amounts so
deposited, and the money so received may be held and commingled
with Beneficiary’s own funds. Notwithstanding anything to the
contrary in this Section 4.5(c), the initial Grantor named
herein shall only be required to deposit Insurance Reserves with
Beneficiary following the occurrence and during the continuance of
any Event of Default.
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(d) Application of Hazard
Insurance Proceeds . Grantor shall promptly notify Beneficiary
of any damage or casualty to all or any portion of the Property or
Chattels. Beneficiary may participate in all negotiations and
appear and participate in all judicial arbitration proceedings
concerning any insurance proceeds which may be payable as a result
of such casualty or damage, and may, in Beneficiary’s sole
discretion, compromise or settle, in the name of Beneficiary,
Grantor, or both any claim for any such insurance proceeds. Any
such insurance proceeds shall be paid to Beneficiary and shall be
applied first to reimburse Beneficiary for all costs and expenses,
including attorneys’ fees, incurred by Beneficiary in
connection with the collection of such insurance proceeds. The
balance of any insurance proceeds received by Beneficiary with
respect to an insured casualty may, in Beneficiary’s sole
discretion, either (i) be retained and applied by Beneficiary
toward payment of the Secured Obligations, or (ii) be paid
over, in whole or in part and subject to such conditions as
Beneficiary may impose, to Grantor to pay for repairs or
replacements necessitated by the casualty; provided, however, that
if all of the Secured Obligations have been performed or are
discharged by the application of less than all of such insurance
proceeds, then any remaining proceeds will be paid over to Grantor.
Notwithstanding the preceding sentence, if (A) no Default or
Event of Default shall exist hereunder, and (B) the proceeds
received by Beneficiary (together with any other funds delivered by
Grantor to Beneficiary for such purpose) shall be sufficient, in
Beneficiary’s reasonable judgment, to pay for any restoration
necessitated by the casualty, and (C) the cost of such
restoration shall not exceed $100,000.00, and (D) such
restoration can be completed, in Beneficiary’s judgment, at
least ninety (90) days prior to the maturity date of the Note,
then Beneficiary shall apply such proceeds as provided in clause
(ii) of the preceding sentence. Beneficiary will have no
obligation to see to the proper application of any insurance
proceeds paid over to Grantor, nor will any such proceeds received
by Beneficiary bear interest or be subject to any other charge for
the benefit of Grantor. Beneficiary may, prior to the application
of insurance proceeds, commingle them with Beneficiary’s own
funds and otherwise act with regard to such proceeds as Beneficiary
may determine in Beneficiary’s sole discretion.
(e) Successor’s
Rights . Any person who acquires title to the Property or the
Chattels upon foreclosure hereunder will succeed to all of
Grantor’s rights under all policies of insurance maintained
pursuant to this Section.
4.6 Maintenance and Repair
of Property and Chattels. Grantor will at all times maintain
the Property and the Chattels in good condition and repair, will
diligently prosecute the completion of any building or other
improvement which is at any time in the process of construction on
the Property, and will promptly repair, restore, replace, or
rebuild any part of the Property or the Chattels which may be
affected by any casualty or any public or private taking or injury
to the Property or the Chattels. All costs and expenses arising out
of the foregoing shall be paid by Grantor whether or not the
proceeds of any insurance or eminent domain shall be sufficient
therefor. Grantor will comply with all statutes, ordinances, and
other governmental or quasi-governmental requirements and private
covenants relating to the ownership, construction, use, or
operation of the Property, including but not limited to any
environmental or ecological requirements; provided, that so long as
Grantor is not otherwise in default hereunder, Grantor may, upon
providing Beneficiary with security reasonably satisfactory to
Beneficiary, proceed diligently and in good faith to contest the
validity or applicability of any such statute, ordinance, or
requirement. Beneficiary and any person authorized by Beneficiary
may enter and inspect the Property at all reasonable times, and may
inspect the Chattels, wherever located, at all reasonable
times.
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4.7 Leases. Grantor
shall timely pay and perform each of its obligations under or in
connection with the Leases, and shall otherwise pay such sums and
take such action as shall be necessary or required in order to
maintain each of the Leases in full force and effect in accordance
with its terms. Grantor shall make reasonable efforts to promptly
furnish to Beneficiary copies of any notices given to Grantor by
the lessee under any Lease, alleging the default by Grantor in the
timely payment or performance of its obligations under such Lease
and any subsequent communication related thereto. Grantor shall
also promptly furnish to Beneficiary copies of any notices given to
Grantor by the lessee under any Lease, extending the term of any
Lease, requiring or demanding the expenditure of any sum by Grantor
(or demanding the taking of any action by Grantor), or relating to
any other material obligation of Grantor under such Lease and any
subsequent communication related thereto. Grantor agrees that
Beneficiary, in its sole discretion, may advance any sum or take
any action which Beneficiary believes is necessary or required to
maintain the Leases in full force and effect, and all such sums
advanced by Beneficiary, together with all costs and expenses
incurred by Beneficiary in connection with action taken by
Beneficiary pursuant to this Section, shall be due and payable by
Grantor to Beneficiary upon demand, shall bear interest until paid
at the Default Rate (as defined in the Note), and shall be secured
by this Deed of Trust.
4.8 Eminent Domain;
Private Damage. If all or any part of the Property is taken or
damaged by eminent domain or any other public or private action,
Grantor will notify Beneficiary promptly of the time and place of
all meetings, hearings, trials, and other proceedings relating to
such action. Beneficiary may participate in all negotiations and
appear and participate in all judicial or arbitration proceedings
concerning any award or payment which may be due as a result of
such taking or damage, and may, in Beneficiary’s reasonable
discretion, compromise or settle, in the names of both Grantor and
Beneficiary, any claim for any such award or payment. Any such
award or payment is to be paid to Beneficiary and will be applied
first to reimburse Beneficiary for all costs and expenses,
including attorneys’ fees, incurred by Beneficiary in
connection with the ascertainment and collection of such award or
payment. The balance, if any, of such award or payment may, in
Beneficiary’s sole discretion, either (a) be retained by
Beneficiary and applied toward the Secured Obligations, or
(b) be paid over, in whole or in part and subject to such
conditions as Beneficiary may impose, to Grantor for the purpose of
restoring, repairing, or rebuilding any part of the Property
affected by the taking or damage. Notwithstanding the preceding
sentence, if (i) no Default or Event of Default shall have
occurred and be continuing hereunder, and (ii) the proceeds
received by Beneficiary (together with any other funds delivered by
Grantor to Beneficiary for such purpose) shall be sufficient, in
Beneficiary’s reasonable judgment, to pay for any restoration
necessitated by the taking or damage, and (iii) the cost of
such restoration shall not exceed $100,000.00, and (iv) such
restoration can be completed, in Beneficiary’s judgment, at
least ninety (90) days prior to the maturity date of the Note,
and (v) the remaining Property shall constitute, in
Beneficiary’s sole judgment, adequate security for the
Secured Obligations, then Beneficiary shall apply such proceeds as
provided in clause (b) of the preceding sentence.
Grantor’s duty to pay the Note in accordance with its terms
and to perform the other Secured Obligations will not be suspended
by the pendency or discharged by the conclusion of any proceedings
for the collection of any such award or payment, and any reduction
in the Secured Obligations resulting from
Beneficiary’s
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application of any such award or payment
will take effect only when Beneficiary receives such award or
payment. If this Deed of Trust has been foreclosed prior to
Beneficiary’s receipt of such award or payment, Beneficiary
may nonetheless retain such award or payment to the extent required
to reimburse Beneficiary for all costs and expenses, including
attorneys’ fees, incurred in connection therewith, and to
discharge any deficiency remaining with respect to the Secured
Obligations.
4.9 Mechanics’
Liens. Grantor will keep the Property free and clear of all
liens and claims of liens by contractors, subcontractors,
mechanics, laborers, materialmen, and other such persons, and will
cause any recorded statement of any such lien to be released of
record within thirty (30) days after the recording thereof or
such earlier date as may be necessary to stop a foreclosure
thereof. Notwithstanding the preceding sentence, however, Grantor
will not be deemed to be in default under this Section if
(i) the aggregate amount of any asserted liens does not exceed
$100,000.00, or (ii) to the extent such liens exceed
$100,000.00, Grantor provides Beneficiary with such security as
Beneficiary may require to protect Beneficiary against all loss,
damage and expense which Beneficiary may incur as a result of such
liens in excess of $100,000.00, which security may consist of
Grantor causing such liens in excess of $100,000.00 to be bonded
over or insured over. Any initiation of proceedings to foreclose on
any such lien, however, shall constitute a Default.
4.10 Defense of
Actions. Grantor will defend, at Grantor’s expense, any
action, proceeding or claim which affects any property encumbered
hereby or any interest of Beneficiary in such property or in the
Secured Obligations, and will indemnify and hold Beneficiary
harmless from all loss, damage, cost, or expense, including
attorneys’ fees, which Beneficiary may incur in connection
therewith.
4.11 Expenses of
Enforcement. Grantor will pay all costs and expenses, including
attorneys’ fees, which Beneficiary may incur in connection
with any effort or action (whether or not litigation or foreclosure
is involved) to enforce or defend Beneficiary’s rights and
remedies under any of the Loan Documents, including but not limited
to all attorneys’ fees, appraisal fees, consultants’
fees, and other expenses incurred by Beneficiary in securing title
to or possession of, and realizing upon, any security for the
Secured Obligations. All such costs and expenses (together with
interest thereon at the Default Rate from the date incurred) shall
constitute part of the Secured Obligations, and may be included in
the computation of the amount owed to Beneficiary for purposes of
foreclosing or otherwise enforcing this Deed of Trust.
4.12 Financial
Reports. During the term of the Loan, Grantor shall supply to
Beneficiary (a) within forty-five (45) days
following the end of each quarter, Grantor’s quarterly and
annual operating statements for the Property as of the end of and
for the preceding quarter and fiscal year, as applicable, in each
case prepared consistent with the form of operating statements
delivered to Beneficiary by Grantor prior to the date of this Deed
of Trust; (b) contemporaneously with Grantor’s delivery
of each of such operating statements, a certified rent roll signed
and dated by Grantor in the form delivered to Beneficiary prior to
the date of this Deed of Trust; and (c) within
ninety (90) days following the end of each year, an
annual balance sheet and profit and loss statement of Grantor. The
financial statements and reports described in (a) and
(c) above shall be in the detail set forth in the financial
statements delivered to Beneficiary by Grantor prior to the date of
this Deed of Trust, shall be prepared in accordance
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with generally accepted accounting
principles consistently applied, and shall be certified as true and
correct by Grantor (or, if required by Beneficiary during the
continuation of an Event of Default or if required to comply with
regulatory requirements to which Beneficiary may be subject, by an
independent certified public accountant acceptable to Beneficiary).
Grantor shall also furnish to Beneficiary within
forty-five (45) days of Beneficiary’s request, any
other financial reports or statements of Grantor as Beneficiary may
reasonably request to comply with regulatory requirements to which
Beneficiary may be subject, or as requested by Beneficiary in its
sole discretion during the continuation of an Event of Default.
Upon Beneficiary’s demand after any Event of Default, or if
Beneficiary securitizes the Loan, Grantor shall supply to
Beneficiary the items required in (a) and (b) above on a
monthly basis. Notwithstanding the foregoing, for so long as
KBS ADP Plaza, LLC is Grantor, any request or requirement that
Grantor deliver audited financials certified by an independent
certified public accountant may be satisfied by delivery of the
audited financials for KBS Real Estate Investment Trust,
Inc.
4.13 Priority of
Leases. To the extent Grantor has the right, under the terms of
any Lease, to make such Lease subordinate to the lien hereof,
Grantor will, at Beneficiary’s request and Grantor’s
expense, take such action as may be required to effect such
subordination. Conversely, Grantor will, at Beneficiary’s
request and Grantor’s expense, take such action as may be
necessary to subordinate the lien hereof to any future Lease
designated by Beneficiary.
4.14 Inventories; Assembly
of Chattels. Upon the occurrence of any Event of Default
hereunder, Grantor will at Beneficiary’s request assemble the
Chattels and make them available to Beneficiary at any place
designated by Beneficiary which is reasonably convenient to both
parties.
4.15 Compliance with Laws,
Etc. Grantor shall comply in all material respects with all
applicable laws, rules, regulations and orders, such compliance to
include, without limitation, maintaining all Permits and paying
before the same become delinquent all taxes, assessments and
governmental charges imposed upon Grantor or the
Property.
4.16 Records and
Books of Account. Grantor shall keep accurate and complete
records and books of account, in which complete entries will
be made in accordance with generally accepted accounting principles
consistently applied, reflecting all financial transactions
relating to the Property.
4.17 Inspection
Rights. At any reasonable time, and from time to time, Grantor
shall permit Beneficiary, or any agents or representatives thereof,
to examine and make copies of and abstracts from the records and
books of account of Grantor, and to visit the Property and to
discuss with Grantor the affairs, finances and accounts of
Grantor.
4.18 Change of
Grantor’s Address or State of Organization. Grantor shall
promptly notify Beneficiary if changes are made in Grantor’s
address from that set forth in Section 9.10 hereof, or if
Grantor shall either change its “location” (as such
term is used in Section 5.8 hereof), its state of organization
or if Grantor shall organize in any state other than the State of
Delaware.
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4.19 Further Assurances;
Estoppel Certificates. Grantor will execute and deliver to
Beneficiary upon demand, and pay the costs of preparation and
recording thereof, any further documents which Beneficiary may
request to confirm or perfect the liens and security interests
created or intended to be created hereby, or to confirm or perfect
any evidence of the Secured Obligations. Grantor will also, within
ten days after any request by Beneficiary, deliver to Beneficiary a
signed and acknowledged statement certifying to Beneficiary, or to
any proposed transferee of the Secured Obligations, (a) the
balance of principal, interest, and other sums then outstanding
under the Note, and (b) whether Grantor claims to have any
offsets or defenses with respect to the Secured Obligations and, if
so, the nature of such offsets or defenses.
4.20 Costs of Closing.
Grantor shall on demand pay directly or reimburse Beneficiary for
any actual costs or expenses pertaining to the closing of the Loan,
including, but not limited to, fees of counsel for Beneficiary,
costs and expenses for which invoices were not available at the
closing of the Loan, or costs and expenses which are incurred by
Beneficiary after such closing, including, without limitation,
costs or expenses incurred to obtain originals or copies of
recorded or filed Loan Documents and UCC financing statements. All
such costs and expenses (together with interest thereon at the
Default Rate from the date incurred by Beneficiary) shall
constitute a part of the Secured Obligations, and may be included
in the computation of the amount owed to Beneficiary for purposes
of foreclosing or otherwise enforcing this Deed of
Trust.
4.21 Fund for Electronic
Transfer. All monthly payments of principal and interest on the
Note, and escrow deposits, if any, under this Deed of Trust, shall
be made by Grantor by electronic funds transfer from a bank account
established and maintained by Grantor for such purpose. Grantor
shall establish and maintain such an account until the Note is
fully paid and shall direct the depository of such account in
writing to so transmit such payments on or before the respective
due dates to the account of Beneficiary as shall be designated by
Beneficiary in writing.
4.22 Use. Grantor
shall use the Property solely for the operation of an office
complex, and for no other use or purpose.
4.23 Management. The
Property shall be managed by CB Richard Ellis (“Property
Manager”)
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