EXHIBIT 10.133
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Sidley Austin LLP
One South Dearborn Street
Chicago, Illinois 60603
Attn: Dennis M.
Coghlan, Esq.
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FEE AND
LEASEHOLD DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS
SECURITY AGREEMENT AND FIXTURE FILING
made by
PUENTE HILLS MALL, LLC,
a Delaware limited liability company
(Grantor)
to
COMMONWEALTH LAND TITLE COMPANY
(Trustee)
for the benefit
of
EUROHYPO AG, NEW YORK BRANCH, AS ADMINISTRATIVE AGENT
(Beneficiary)
Dated: As of June 3, 2008
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<PAGE>
TABLE OF CONTENTS
Page No.
--------
ARTICLE 1
OBLIGATIONS..........................................................5
Section 1.01
Obligations.........................................5
ARTICLE 2 PARTICULAR COVENANTS AND AGREEMENTS OF
GRANTOR.......................6
Section 2.01
Payment of
Secured Obligations......................6
Section 2.02 Title,
etc..........................................6
Section 2.03 Further
Assurances; Filing; Re Filing; etc..........7
Section 2.04
Liens...............................................7
Section 2.05
Insurance...........................................7
Section 2.06
Impositions.........................................7
Section 2.07
Maintenance of the Improvements and Equipment.......8
Section 2.08 Compliance
With Laws................................8
Section 2.09
Limitations of Use..................................8
Section 2.10 Actions to
Protect Mortgaged Property...............8
Section 2.11 Insurance
and Condemnation Proceeds.................9
Section 2.12 Lien
Laws...........................................9
Section 2.13
Inspections.........................................9
Section 2.14
Reserved...........................................10
ARTICLE 3 ASSIGNMENT OF LEASES AND
RENTS......................................10
Section 3.01 Assignment
of Rents, Issues and Profits............10
ARTICLE 4 SECURITY AGREEMENT; FIXTURE
FILING..................................10
Section 4.01 Creation
of Security Interest......................10
Section 4.02
Continuation Statements; Amendments................11
Section 4.03 Fixture
Filing.....................................11
ARTICLE 5 DEFAULTS;
REMEDIES..................................................11
Section 5.01 Events of
Default..................................11
Section 5.02
Remedies...........................................11
Section 5.03
Application of Proceeds............................15
Section 5.04 Right to
Sue.......................................15
Section 5.05 Powers of
Beneficiary..............................16
Section 5.06 Remedies
Cumulative................................16
Section 5.07 General
Provisions.................................16
Section 5.08 No
Mortgagee-in-Possession.........................19
Section 5.09 Prepayment
Charge..................................19
ARTICLE 6 CONCERNING
TRUSTEE..................................................19
Section 6.01
Acceptance.........................................19
Section 6.02 Certain
Rights.....................................19
Section 6.03
Resignation........................................20
Section 6.04 Successor
Trustees.................................20
<PAGE>
Section 6.05 Perfection
of Appointment..........................20
Section 6.06
Enforcement; Court Actions.........................20
ARTICLE 7
MISCELLANEOUS.......................................................20
Section
7.01 Release of
Deed of Trust...........................21
Section 7.02
Notices............................................21
Section 7.03 No
Waiver..........................................22
Section 7.04
Amendments; etc....................................22
Section 7.05 Successors
and Assigns.............................23
Section 7.06
Captions...........................................23
Section 7.07
Severability.......................................23
Section 7.08 Usury
Savings Clause...............................23
Section 7.09 CERTAIN
ACKNOWLEDGMENTS AND WAIVERS................24
Section 7.10 GOVERNING
LAW......................................24
Section 7.11 WAIVER OF
JURY TRIAL...............................26
Section 7.12
Attorney-In-Fact...................................26
ARTICLE 8 SPECIAL STATE
PROVISIONS............................................27
ARTICLE 9 GROUND LEASE
PROVISIONS.............................................28
Exhibit A-1 - Description of Fee-Owned Land
Exhibit A-2 - Description of Leasehold Land
Exhibit B - Personal Property Collateral
<PAGE>
FEE AND LEASEHOLD DEED
OF TRUST, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT, AND FIXTURE FILING
THIS
FEE AND LEASEHOLD DEED OF TRUST, ASSIGNMENT OF LEASES AND
RENTS,
SECURITY AGREEMENT AND FIXTURE FILING (this "Deed of Trust") is
made as of the
3rd day of June 2008 by PUENTE HILLS MALL, LLC, a limited liability
company duly
organized and validly existing under the laws of the State of
Delaware and
having an office at c/o Glimcher Realty Trust, 180 E. Broad Street,
21st Floor,
Columbus, Ohio 43215 ("Grantor"), to COMMONWEALTH LAND TITLE
COMPANY having an
office at 1920 Main Street,12th Floor, Irvine, California 92614
("Trustee"), for
the benefit of EUROHYPO AG, NEW YORK BRANCH, having an office at
1114 Avenue of
the Americas, New York, New York 10036, as Administrative Agent for
the lenders
referred to below (in such capacity, together with its successors
in such
capacity, "Beneficiary").
W I T N E S S E T H:
WHEREAS, Grantor is the fee owner of that certain tract of land
located in
the County of Los Angeles, State of California, and being more
fully described
in Exhibit A-1 attached hereto (the "Fee-Owned Land").
WHEREAS, Grantor is the tenant under that certain GROUND LEASE
dated
September 23, 1969, by and between Jeanne Marie Erramouspe,
individually, and as
attorney in fact for Emilie E. Wilfert, Charlotte E. Torrance and
Bette
Marcellin; Emilie E. Wilfert, trustee for George E. Wilfert, III
and Gary S.
Wilfert; Charlotte E. Torrance, trustee for J. Michele Torrance and
Thomas J.
Torrance; and Bette Marcellin, trustee for Richard J. Marcellin and
Colette A
Marcellin (collectively "Original Lessor") and Ernest W. Hahn,
Inc., a
California corporation as lessee ("Original Lessee"), for the
ground lease of
the Ground Lease Property; as amended by: ADDENDUM NO. 1 TO GROUND
LEASE DATED
SEPTEMBER 23, 1969 dated December 22, 1972, between Original Lessor
and
Hahn-Puente Associates, a limited partnership in which Ernest W.
Hahn, Inc. is
the general partner, Broadway-Hale Stores, Inc., a California
corporation,
Sears, Roebuck and Co., a New York corporation, J. C. Penny
Properties, Inc., a
Delaware corporation, and Adcor Realty Corporation, a New York
corporation;
CONSTRUCTION, OPERATION, AND RECIPROCAL EASEMENT AGREEMENT dated
December 22,
1972, by and between Hahn-Puente Associates, Broadway-Hale Stores,
Inc., Sears,
Roebuck and Co., J. C. Penny Properties, Inc., and Adcor Realty
Corporation;
SUBORDINATION AGREEMENT dated December 22, 1972, by Original
Lessor; DEED AND
ASSIGNMENT dated December 20, 1991, between RT-H Corporation of
California, a
California corporation, as grantor/assignor, and Hahn-Puente
Associates, as
grantee/assignee; GROUND LEASE ASSIGNMENT dated August 5, 1996, by
and between
Hahn-Puente Associates, as assignor, and Kent Properties, Inc., a
California
corporation, as assignee; GROUND LEASE ASSIGNMENT dated October 21,
1996, by and
between Kent Properties, Inc., as assignor, and Krausz Capistrano
Partners, a
California general partnership, as assignee; GROUND LEASE
ASSIGNMENT dated
October 21, 1996, by and between Krausz Capistrano Partners, as
assignor, and
Krausz Puente LLC, a California limited liability company, as
assignee
(collectively with all amendments thereto, the "Ground Lease")
affecting the
land located in the County of Los Angeles, State of California, and
being more
fully described in Exhibit A-2 attached hereto (the "Leasehold
Land"; the
Fee-Owned Land and the Leasehold Land are referred to collectively
herein as the
"Land").
<PAGE>
WHEREAS, Grantor, certain lenders (collectively, the "Lenders")
and
Beneficiary are parties to a Loan Agreement dated as of the date
hereof (said
Loan Agreement, as modified and supplemented and in effect from
time to time,
being herein called the "Loan Agreement"; and except as otherwise
herein
expressly provided, all terms defined in the Loan Agreement are
being used
herein as defined therein), which Loan Agreement provides, among
other things,
for Loans to be made by the Lenders to Grantor in an aggregate
principal amount
not exceeding $90,000,000.00 to be evidenced by, and repayable with
interest
thereon in accordance with, various Notes.
WHEREAS, it is a condition to the obligation of the Lenders to
extend
credit to Grantor pursuant to the Loan Agreement that Grantor
execute and
deliver this Deed of Trust as the "Mortgage" defined in the Loan
Agreement.
NOW,
THEREFORE, in consideration of the foregoing recitals, which
are
incorporated into the operative provisions of this Deed of Trust by
this
reference, and for other good and valuable consideration, the
receipt and
adequacy of which are hereby conclusively acknowledged,
To
secure the payment of an indebtedness in the principal sum of
NINETY
MILLION AND NO/100 DOLLARS ($90,000,000.00), lawful money of the
United States
of America, or so much thereof as shall be advanced pursuant to the
Loan
Agreement and remain outstanding, to be paid with interest
(including, without
limitation, any Additional Interest under any Hedge Agreement to
the extent
provided in the Loan Agreement) according to the Notes, and the
payment and
performance of all other Obligations (defined below) of Grantor
hereunder,
Grantor has mortgaged, given, granted, bargained, sold, alienated,
conveyed,
confirmed, pledged, assigned and hypothecated and by these presents
do mortgage,
give, grant, bargain, sell, alienate, convey, confirm, pledge,
assign and
hypothecate unto Trustee, and Trustee's successors and assigns, in
trust, with
power of sale and right of entry and possession, all right, title,
interest and
estate of Grantor, now owned, or hereafter acquired, in and to the
following
property, rights and interests (such property, rights and interests
being
collectively referred to herein as the "Mortgaged Property"),
subject only to
the Permitted Encumbrances (as defined below):
(a)
the Land;
(b)
all right, title and interest of Grantor in, to, under or derived
from
or related to the Ground Lease;
(c)
any and all buildings, constructions and improvements now or
hereafter
erected or located in or on the Land or any portion thereof,
including all
Equipment (defined below) and other articles now or hereafter
attached or
affixed thereto or located thereon and owned or ground leased by
Grantor,
together with all appurtenances and additions thereto and
betterments, renewals,
substitutions and replacements thereof (collectively, the
"Improvements"), all
of which shall be deemed and construed to be part of the
realty;
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<PAGE>
(d)
all easements, streets, rights-of-way, strips and gores of land,
ways,
alleys, passages, sewer rights, waters, water courses, water rights
and powers,
and all estates, rights, titles, interests, privileges, liberties,
tenements,
hereditaments, and appurtenances of any nature whatsoever, in any
way belonging,
relating or pertaining to the Mortgaged Property (including any and
all
development rights, air rights, signage rights, rights under
trackage
agreements, mineral, mining, oil and gas rights and rights to
produce or share
in the production of anything related thereto and similar or
comparable rights
of any nature whatsoever now or hereafter appurtenant to the
Premises (defined
below) or now or hereafter transferred to the Premises) and all
land lying in
the bed of any street, road or avenue, opened or proposed, in front
of or
adjoining the Premises to the center line thereof and all the
estates, rights,
titles, interests, dower and rights of dower, curtesy and rights of
curtesy
property, possessions, claims and demands whatsoever, both at law
and in equity,
of Grantor of, in and to the Mortgaged Property, and every part and
parcel
thereof, with the appurtenances thereto (collectively, the
"Appurtenances"; the
Land, the Improvements and the Appurtenances being referred to
herein,
collectively, as the "Premises");
(e)
all machinery, apparatus, equipment, fittings, fixtures (including
all
heating, air conditioning, plumbing, lighting, communications and
elevator
fixtures) and other property of every kind and nature whatsoever
owned or leased
by Grantor, or in which Grantor has or shall have an interest, now
or hereafter
located upon the Mortgaged Property, or appurtenant thereto, or
useable in
connection with the present or future operation and occupancy of
the Mortgaged
Property and all building equipment, materials and supplies of any
nature
whatsoever owned by Grantor, or in which Grantor has or shall have
an interest,
now or hereafter located upon the Mortgaged Property, including all
such items
that do not constitute personal property under the laws of the
State of
California (herein collectively referred to as the "Equipment"),
and the right,
title and interest of Grantor in and to any of the Equipment that
may be subject
to any security agreements (as defined in the Uniform Commercial
Code of the
State of California (the "Uniform Commercial Code"), superior or
inferior or
pari passu in lien to the lien of this Deed of Trust;
(f)
all awards or payments, including interest thereon, and the right
to
receive the same, which may heretofore or hereafter be made with
respect to the
whole or part of the Mortgaged Property, whether from the exercise
of the right
of eminent domain (including any proceeding or transfer in lieu of
or in
anticipation of the exercise of such right), or for any other
injury to or
decrease in the value of the Mortgaged Property, including any
award resulting
from a change of any streets (whether as to grade, access or
otherwise) and any
award for severance damages;
(g)
all tax refunds, including interest thereon, and the right to
receive
the same, which may be payable or available with respect to the
Mortgaged
Property;
(h)
all leasehold estates, leases, ground leases, subleases,
licenses,
concessionaire agreements, bailments or other agreements affecting
the use,
enjoyment or occupancy of the Mortgaged Property or any portion
thereof now or
hereafter existing or entered into (including any use or occupancy
arrangements
created pursuant to Section 365(d) of Title 11 of the United States
Code (the
"Bankruptcy Code") or otherwise in connection with the commencement
or
continuance of any bankruptcy, reorganization, arrangement,
insolvency,
dissolution, receivership or similar proceedings, or any assignment
for the
3
<PAGE>
benefit of creditors, in respect of any tenant or occupant of any
portion of the
Mortgaged Property (a "Tenant")) and all extensions, amendments
and
modifications thereto heretofore or hereafter entered into
(collectively, the
"Leases"), and all right, title and interest of Grantor thereunder,
including
all guaranties thereof;
(i)
all rents, issues, profits, royalties, use and occupancy
charges
(including all oil and gas or other mineral royalties and bonuses),
income and
other benefits now or hereafter derived from any portion of the
Mortgaged
Property or the use or occupancy thereof (including any payments
received
pursuant to Section 502(b) of the Bankruptcy Code or otherwise in
connection
with the commencement or continuance of any bankruptcy,
reorganization,
arrangement, insolvency, dissolution, receivership or similar
proceedings, or
any assignment for the benefit of creditors, in respect of any
Tenant of any
portion of the Mortgaged Property and all claims as a creditor in
connection
with any of the foregoing) and all cash or security deposits,
advance rentals,
and all deposits or payments of a similar nature relating thereto
(collectively,
the "Rents");
(j)
all proceeds of any insurance policies that may now or hereafter
cover
the Mortgaged Property, to the extent payable with respect to the
Mortgaged
Property, including the right to receive and apply the proceeds of
any
insurance, judgments or settlements made in lieu thereof, for
damage to the
Mortgaged Property;
(k)
all right, title and interest of Grantor in, to and under all
plans,
specifications, maps, surveys, studies, reports, permits,
licenses,
architectural, engineering and construction contracts, books of
account,
insurance policies and other documents, of whatever kind or
character, relating
to the use, development, construction upon, occupancy, leasing,
sale or
operation of the Mortgaged Property;
(l)
all the fixtures and, to the extent the same constitutes an
interest in
real property, all of the property described in Exhibit B attached
hereto, now
owned or hereafter acquired by Grantor, and all appurtenances and
additions
thereto and betterments, renewals, substitutions and replacements
thereof
(collectively, the "Fixtures") ; and, if the lien and security
interest of this
Deed of Trust is subject to any security interest in such property,
all right,
title and interest of Grantor now owned or hereafter arising in and
to any and
all such property is hereby assigned to Trustee, together with the
benefits of
all deposits and payments now or hereafter made thereon by or on
behalf of
Grantor;
(m)
all right, title and interest now owned or hereafter acquired
by
Grantor in and to all options to purchase or ground lease the
Mortgaged Property
or any portion thereof or interest therein, and in and to any
greater estate in
the Premises or any other Mortgaged Property; and
(n)
the right, in the name and on behalf of Grantor, to appear in
and
defend any action or proceeding brought with respect to the
Mortgaged Property,
and to commence any action or proceeding to protect the interest of
Trustee,
Beneficiary and the Lenders in the Mortgaged Property; and
4
<PAGE>
(o)
all proceeds, products, substitutions, and accessions of the
foregoing
of every type.
As
used herein, "Permitted Encumbrances" means (i) the outstanding
liens,
easements, restrictions, security interests and other exceptions to
title set
forth in the policy of title insurance insuring the lien of this
Deed of Trust,
(ii) the liens and security interests in favor of Beneficiary
created by the
Loan Documents, (iii) liens, if any, for taxes not yet due and
payable or
delinquent, (iv) inchoate mechanics' liens in respect of property
or assets
imposed by law which were incurred in the ordinary course of
business and
relating to work for which payment is not yet due and payable or
delinquent, (v)
Approved Leases, and (vi) such easements or other matters as
Beneficiary has
approved in writing or may expressly approve in writing in
Beneficiary's sole
discretion, none of which (in the case of each of the foregoing
clauses (i)
through (vi)), individually or in the aggregate, materially
interferes with the
benefits of the security intended to be provided by this Deed of
Trust,
materially and adversely affects the value of the Mortgaged
Property, impairs
the use or operations of the Mortgaged Property or impairs
Grantor's ability to
pay its obligations in a timely manner.
TO
PROTECT THE SECURITY OF THIS DEED OF TRUST, GRANTOR HEREBY
COVENANTS AND
AGREES WITH BENEFICIARY AND THE LENDERS AS FOLLOWS:
ARTICLE 1
OBLIGATIONS
-----------
Section 1.01 Obligations. This Deed of Trust is executed,
acknowledged and
delivered by Grantor to secure and enforce the following
obligations
(collectively, the "Obligations"), subject to the limitations set
forth in
Section 1.02 hereof:
(a) Payment of the entire unpaid principal amount of the Notes,
together with all interest (including, without limitation, any
Additional
Interest) accrued and unpaid thereon, and all other amounts that
may or
shall become due and owing under this Deed of Trust, the Notes, the
Loan
Agreement, the Hedge Agreement (but only if entered into with
the
Administrative Agent or any Affiliate thereof pursuant to the terms
of the
Loan
Agreement) and payment of all of Grantor's obligations under the
other
Loan
Documents, including all sums advanced pursuant to the terms of
this
Deed
of Trust to protect and preserve the Mortgaged Property and the
lien
and
security interest hereby created therein at the time and in the
manner
provided therein for such payment;
(b) Full and prompt performance of every obligation, covenant
and
agreement of Grantor arising under or in connection with this Deed
of
Trust, the Notes, the Loan Agreement and all other Loan Documents
at the
time
and in the manner provided therein for such performance;
(c) Payment of all other indebtedness and liabilities and
performance
of
all other obligations of Grantor to Trustee, Beneficiary and the
Lenders
arising pursuant to or in connection with this Deed of Trust or any
other
Loan
Document (including without limitation any Hedge Agreement, but
only
if
entered into with the Administrative Agent or any Affiliate
thereof
pursuant to the terms of the Loan Agreement); and
5
<PAGE>
(d) All renewals, extensions, amendments, modifications,
consolidations and changes of, or substitutions or replacements
for, all or
any
part of the items described under clauses (a) through (c)
above.
Notwithstanding any provision of any Loan Documents, this Deed of
Trust does not
and shall not secure any obligations of the Guarantor under the
Guaranty.
ARTICLE 2
PARTICULAR COVENANTS AND AGREEMENTS OF GRANTOR
----------------------------------------------
Section 2.01 Payment of Secured Obligations. Grantor shall pay and
perform
the Obligations in full in accordance with the terms of the Notes,
the Loan
Agreement and the other Loan Documents.
Section 2.02 Title, etc.
(a) Grantor represents and warrants that (i) Grantor is
lawfully
seised and possessed of good, marketable and insurable fee simple
title to
the
Fee-Owned Land, good, marketable and insurable leasehold title to
the
Leasehold Land, and good sufficient and legal title to all other
portions
of
the Mortgaged Property, in each case subject to no Liens other
than
Permitted Encumbrances and (ii) it has the full power and lawful
authority
to
grant, bargain, sell, release, convey, warrant, assign,
transfer,
mortgage, pledge, set over and confirm unto Trustee the Mortgaged
Property
as
hereinabove provided.
(b) Grantor shall, at Grantor's sole cost and expense, preserve
Grantor's title to the Mortgaged Property and the validity,
enforceability
and
first priority of the lien of this Deed of Trust (subject to
the
Permitted
Encumbrances) and shall forever warrant and defend the same to
Trustee and Beneficiary against the claims of each and every
Person
claiming or threatening to claim the same or any part thereof.
(c) If the lien or security interest created by this Deed of Trust,
or
the
validity, enforceability or priority thereof or of this Deed of
Trust,
or
if title or any of the rights of Grantor, Trustee, Beneficiary or
any
Lender in or to the Mortgaged Property, shall be endangered or
questioned,
or
shall be attacked directly or indirectly, or if any action or
proceeding
is
instituted against Grantor, Trustee or Beneficiary with respect
thereto,
Grantor will promptly notify Beneficiary thereof and will
diligently take
such
action as may be required to cure any defect that may be developed
or
claimed, and will take all necessary and proper steps for the
defense of
such
action or proceeding, including the employment of counsel, the
prosecution or defense of litigation and (subject to
Beneficiary's
approval, not to be unreasonably withheld or delayed) the release
or
discharge of any and all adverse claims. Beneficiary shall have the
right
to
appear in and defend any such actions or proceedings (whether or
not
originally named as a party to such actions or proceedings) and is
hereby
authorized and empowered (but shall not be obligated) to take
such
6
<PAGE>
additional steps as it may deem necessary or proper, in the name
and on
behalf of Grantor, for the defense of any such action or proceeding
or the
protection of the lien, security interest, validity, enforceability
or
priority of this Deed of Trust or of such title or rights,
including the
employment of counsel, the institution, prosecution or defense
of
litigation, the compromise, release or discharge of such adverse
claims,
the
purchase of any tax title and the removal of such prior liens
and
security
interests.
Section 2.03 Further Assurances; Filing; Re Filing; etc.
(a) Grantor shall execute, acknowledge and deliver, from time to
time,
such
further instruments as may be necessary, or that Trustee or
Beneficiary may reasonably require to accomplish the purposes of
this Deed
of
Trust.
(b) Grantor, immediately upon the execution and delivery of this
Deed
of
Trust, and thereafter from time to time, shall cause this Deed of
Trust,
any
security agreement or mortgage supplemental hereto and each
instrument
of
further assurance to be executed, acknowledged, filed, registered
or
recorded and refiled, re-registered or re-recorded in such manner
and in
such
places as may be required by Trustee or Beneficiary or by any
present
or
future law in order to publish notice of and perfect the lien and
estate
of
this Deed of Trust upon, and security interest in, the
Mortgaged
Property.
(c) Grantor shall pay all filing, registration and recording fees,
all
refiling, re registration and re-recording fees, and all expenses
incident
to
the execution, filing, recording and acknowledgment of this Deed
of
Trust, any security agreement or mortgage supplemental hereto and
any
instrument of further assurance, and all Federal, state, county
and
municipal stamp taxes, mortgage taxes and other taxes, duties,
imposts,
assessments and charges arising out of or in connection with the
execution,
delivery, filing and recording of the Notes, this Deed of Trust,
the Loan
Agreement or any of the other Loan Documents, any security
agreement or
mortgage supplemental hereto or any instruments of further
assurance.
Section 2.04 Liens. Grantor shall not create or suffer to be
created any
Lien upon the Mortgaged Property prior to, on a parity with, or
subordinate to
the lien of this Deed of Trust, or permit any transfers in
violation of Section
9.1 of the Loan Agreement, other than the Permitted
Encumbrances.
Section 2.05 Insurance. Grantor shall cause the Mortgaged Property
to be
insured in the manner and to the extent required by Section 3.1 of
the Loan
Agreement.
Section 2.06 Impositions. Grantor shall pay or cause to be paid,
before any
fine, penalty, interest or cost attaches thereto, all Impositions
in accordance
with Section 9.2 of the Loan Agreement, including Grantor's right
to contest the
same in accordance with Section 9.2, as well as all other taxes,
assessments,
water and sewer rates, utility charges and all other governmental
or
nongovernmental charges or levies now or hereafter assessed or
levied against
any part of the Mortgaged Property (including, without
limitation,
nongovernmental levies or assessments such as maintenance charges,
owner
association dues or charges or fees, levies or charges resulting
from covenants,
7
<PAGE>
conditions and restrictions affecting the Mortgaged Property) or
upon the lien
or estate of Trustee or Beneficiary therein, as well as all claims
for labor,
materials or supplies that, if unpaid, might by law become a prior
lien thereon
(collectively, the "Impositions"), and within ten (10) Business
Days after
request by Beneficiary will exhibit receipts showing payment of any
of the
foregoing; provided, however, that if by law any such Imposition
may be paid in
installments (whether or not interest shall accrue on the unpaid
balance
thereof), Grantor may pay the same in installments (together with
accrued
interest on the unpaid balance thereof) as the same respectively
become due,
before any fine, penalty or cost attaches thereto.
Section 2.07 Maintenance of the Improvements and Equipment. Grantor
shall
(i) not permit the Improvements or Fixtures to be removed or
demolished
(provided, however, that, subject to the provisions of Section 9.4
of the Loan
Agreement, Grantor may remove or alter such Improvements and
Equipment as
Grantor may deem appropriate in the good faith exercise of
Grantor's reasonable
business judgment, provided that such removal or alteration does
not materially
and adversely affect the value of the Mortgaged Property or
materially detract
from the operation of Grantor's business); (ii) maintain the
Mortgaged Property
in good repair, working order and condition; and (iii) restore and
repair the
Improvements and Equipment or any part thereof now or hereafter
affected by any
casualty event or taking in accordance with the Loan Agreement.
Section 2.08 Compliance With Laws. Grantor covenants and agrees to
(i)
comply with all applicable laws, including, without limitation,
Environmental
Laws, in accordance with Article 5 of the Loan Agreement and the
Environment
Indemnity and (ii) indemnify and hold Trustee, Beneficiary and the
Lenders
harmless from and against any and all losses, liabilities, claims,
damages or
expenses arising from Grantor's failure to so comply with
applicable laws,
including, without limitation, Environmental Laws, in accordance
with the Loan
Agreement and the Environmental Indemnity.
Section 2.09 Limitations of Use. Except for new leases or lease
amendments
entered into in accordance with the Loan Agreement, Grantor shall
not initiate,
join in or consent to any change in any private restrictive
covenant, zoning
ordinance or other public or private restrictions limiting or
defining the uses
that may be made of the Premises or any part thereof without the
prior written
consent of Beneficiary, which consent shall not be unreasonably
withheld or
delayed. Grantor shall comply with the provisions of all
governmental approvals
and all licenses, agreements and private covenants, conditions and
restrictions
that at any time are applicable to the Mortgaged Property.
Section 2.10 Actions to Protect Mortgaged Property. If Grantor
shall fail
beyond any applicable notice and/or grace period to (i) effect the
insurance
required by Section 2.05 hereof, (ii) make the payments required by
Section 2.06
hereof or (iii) perform or observe any of its other covenants or
agreements
hereunder, Beneficiary may, without obligation to do so, and upon
notice to
Grantor (except in an emergency) effect or pay the same; provided,
however, that
any such payment by Beneficiary shall not affect whether such
failure by the
Grantor constitutes an Event of Default (as hereinafter defined).
To the maximum
extent permitted by law, all sums, including reasonable attorneys'
fees and
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disbursements, so expended or expended to sustain the lien or
estate of this
Deed of Trust or its priority, or to protect or enforce any of the
rights
hereunder, or to recover any of the Obligations, shall be a lien on
the
Mortgaged Property, and shall be deemed to be added to the
Obligations secured
hereby, and shall be paid by Grantor within ten (10) days after
demand therefor,
together with interest thereon at the Default Rate. For such
purpose, Grantor
expressly grants to Beneficiary, in addition to, and without
prejudice to, any
other rights and remedies hereunder, (1) the right to enter upon
(and, in
Beneficiary's discretion, to take possession of) the Mortgaged
Property to such
extent and as often as it may deem necessary or desirable to
prevent or remedy
any such default or to take any such action, and (2) the right to
appear in,
defend or bring any action or proceeding to protect Trustee's,
Beneficiary's and
the Lenders' interests in the Mortgaged Property or, during the
continuance of
an Event of Default, to cause Trustee to execute the power of sale,
or
foreclose, under this Deed of Trust or collect the Obligations, and
Grantor
hereby irrevocably appoints and constitutes Beneficiary as
Grantor's lawful
attorney-in-fact, coupled with an interest and with full power of
substitution,
for such purposes and the taking of all acts incidental thereto. No
such
advance, performance or action or proceeding shall be deemed to
have cured such
Event of Default with respect thereto. In any action or proceeding
to foreclose
this Deed of Trust or recover or collect the Obligations,
Beneficiary and the
Lenders shall be entitled to recover the reasonable costs, expenses
and
attorneys' fees and disbursements incurred in foreclosing or
attempting to
collect upon the Obligations, which costs, expenses and attorneys'
fees, to the
extent permitted by any applicable law, shall also be secured by
this Deed of
Trust.
Section 2.11 Insurance and Condemnation Proceeds. Grantor assigns
to
Beneficiary on behalf of the Lenders, (i) all awards or payments,
including
interest thereon, and the right to receive the same, which may
heretofore or
hereafter be made with respect to the whole or part of the
Mortgaged Property,
whether from the exercise of the right of eminent domain (including
any
proceeding or transfer in lieu of or in anticipation of the
exercise of such
right), or for any other injury to or decrease in the value of the
Mortgaged
Property, including any award resulting from a change of any
streets (whether as
to grade, access or otherwise) and any award for severance damages
and (ii) all
proceeds of any insurance policies that may now or hereafter cover
the Mortgaged
Property, to the extent payable with respect to the Mortgaged
Property,
including the right to receive and apply the proceeds of any
insurance,
judgments or settlements made in lieu thereof, for damage to the
Mortgaged
Property. Any insurance proceeds or condemnation awards shall be
held and
applied by Beneficiary in accordance with Article 3 of the Loan
Agreement.
Section 2.12 Lien Laws. Grantor will indemnify and hold
Trustee,
Beneficiary and the Lenders harmless against any loss or liability,
cost or
expense, including, without limitation, any judgments, attorney's
fees, costs of
appeal bonds and printing costs, arising out of or relating to any
proceeding
instituted by any claimant alleging a violation by Grantor of any
applicable
lien law.
Section 2.13 Inspections. Grantor shall permit Trustee, Beneficiary
and
each Lender, and their agents, representatives and employees, upon
reasonable
prior notice to Grantor, to inspect the Mortgaged Property and
conduct such
environmental and engineering studies as Beneficiary may require
pursuant to the
Environmental Indemnity; provided that such inspections and studies
shall not
materially interfere with the use and operation of the Mortgaged
Property.
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Section 2.14 Reserved.
ARTICLE 3
ASSIGNMENT OF LEASES AND RENTS(1)
---------------------------------
Section 3.01 Assignment of Rents, Issues and Profits. Grantor
acknowledges
and confirms that it has executed and delivered to Beneficiary (on
behalf of the
Lenders) an Assignment of Leases and Rents of even date herewith
(the
"Assignment of Leases and Rents"), intending that such instrument
create a
present, absolute assignment to Beneficiary of the Leases and
Rents. Without
limiting the intended benefits or the remedies provided under the
Assignment of
Leases and Rents, Grantor hereby assigns to Beneficiary (on behalf
of the
Lenders), as further security for the secured indebtedness and the
Obligations,
the Leases and Rents. While any Event of Default exists,
Beneficiary shall be
entitled to exercise any or all of the remedies provided in the
Assignment of
Leases and Rents and in Article 5 hereof, including the right to
have a receiver
appointed. If any conflict or inconsistency exists between the
assignment of the
Rents and the Leases in this Deed of Trust and the absolute
assignment of the
Rents and the Leases in the Assignment of Leases and Rents, the
terms of the
Assignment of Leases and Rents shall control.
ARTICLE 4
SECURITY AGREEMENT; FIXTURE FILING
----------------------------------
Section 4.01 Creation of Security Interest. This Deed of Trust
constitutes
both a real property mortgage and a "security agreement", within
the meaning of
the Uniform Commercial Code. The Mortgaged Property includes both
real and
personal property and all other rights and interest, whether
tangible or
intangible in nature, of Grantor in the Mortgaged Property whether
now or
hereafter existing. Grantor by executing and delivering this Deed
of Trust has
granted and hereby grants to Beneficiary, as security for the
Obligations, a
security interest in (a) the Mortgaged Property, and (b) the
personal property
identified on Exhibit B attached hereto, whether now or hereafter
existing, in
each case to the fullest extent that the same may be subject to the
Uniform
Commercial Code (all of such personal property so subject to the
Uniform
Commercial Code, the "Personal Property Collateral"). If an Event
of Default
shall exist, (i) Beneficiary, in addition to any other rights and
remedies that
it may have, shall have and may exercise immediately and without
demand, any and
all rights and remedies granted to a secured party upon default
under the
Uniform Commercial Code, including the right to take possession of
the Personal
Property Collateral, or any part thereof, and to take such other
measures as
Beneficiary may deem necessary for the care, protection and
preservation of the
Personal Property Collateral and (ii) upon request or demand of
Beneficiary,
Grantor shall, at Grantor's sole expense, assemble the Personal
Property
Collateral and make it available to Beneficiary at a convenient
place acceptable
to Beneficiary. Grantor shall pay to Beneficiary on demand any and
all expenses,
including reasonable attorneys' fees, costs and disbursements,
incurred or paid
by Beneficiary in protecting its interest in the Personal Property
Collateral
and in enforcing its rights hereunder with respect to the Personal
Property
Collateral. Any notice of sale, disposition or other intended
action by
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Beneficiary with respect to the Personal Property Collateral sent
to Grantor in
accordance with the provisions of this Deed of Trust at least ten
(10) Business
Days prior to such sale, disposition or other action, shall
constitute
reasonable notice to Grantor, and the method of sale or disposition
or other
intended action set forth or specified in such notice shall
conclusively be
deemed to be commercially reasonable within the meaning of the
Uniform
Commercial Code unless objected to by Grantor within three (3)
Business Days
after such notice. The proceeds of any sale or disposition of the
Personal
Property Collateral, or any part thereof, may be applied by
Beneficiary to the
payment of the Obligations in such priority and proportions as
Beneficiary in
its discretion shall deem proper.
Section 4.02 Continuation Statements; Amendments. Grantor hereby
authorizes
Beneficiary to file one or more financing or continuation
statements, and
amendments thereto, relative to all or any part of the Personal
Property
Collateral without the signature of Grantor where permitted by
Applicable Law.
Section 4.03 Fixture Filing. This Deed of Trust shall also
constitute a
"fixture filing" filed as a fixture filing in the Official Records
of the County
Recorder of the county in which the Mortgaged Property is located
for the
purposes of the Uniform Commercial Code against all of the
Mortgaged Property
which is or is to become fixtures. Information concerning the
security interest
herein granted may be obtained at the addresses of Debtor (Grantor)
and Secured
Party (Beneficiary) as set forth in the first paragraph of this
Deed of Trust.
ARTICLE 5
DEFAULTS; REMEDIES
------------------
Section 5.01 Events of Default. If any Event of Default (herein, an
"Event
of Default") under the Loan Agreement shall occur and be continuing
then, as
more particularly provided in the Loan Agreement, the unpaid
principal of and
accrued interest on the Notes and all other Obligations under the
Loan Agreement
may be declared, or may become, due and payable, without
presentment, demand,
protest or other formalities of any kind, all of which have been
waived pursuant
to the Loan Agreement.
Section 5.02 Remedies. If an Event of Default shall have occurred
and be
continuing, this Deed of Trust may, to the maximum extent permitted
by law, be
enforced, and Beneficiary may exercise any right, power or remedy
permitted to
it hereunder, under the Loan Agreement or under any of the other
Loan Documents
or by law, and, without limiting the generality of the foregoing,
Beneficiary
may, personally or by its agents, exercise any or all of the
following rights to
the maximum extent permitted by law:
(a) Subject to any applicable provisions of the Notes, the Loan
Agreement, the Hedge Agreement and the other Loan Documents,
Beneficiary
may
declare all or any portion of the unpaid principal balance under
the
Notes, together with all accrued and unpaid interest (including,
without
limitation, any Additional Interest) thereon, and all other
unpaid
Obligations, to be immediately due and payable;
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(b) Beneficiary may enter into or upon the Premises, personally or
by
its
agents, nominees or attorneys, and may dispossess Grantor and
its
agents and servants therefrom, and thereupon Beneficiary at its
sole
discretion may: (i)
use, operate, manage, control, insure, maintain,
repair, restore and otherwise deal with all and every portion of
the
Mortgaged Property and conduct business thereon, in any case either
in the
name
of Beneficiary or in such other name as Beneficiary shall deem
best;
(ii)
complete any construction with respect to the Mortgaged Property
in
such
manner and form as Beneficiary deems advisable; (iii) make
alterations, additions, renewals, replacements and improvements to
or on
the
Mortgaged Property; (iv) exercise all rights and powers of Grantor
with
respect to the Mortgaged Property, whether in the name of Grantor
or
otherwise, including the right to make, cancel, enforce or modify
Leases,
obtain and evict tenants, and demand, sue for, collect and receive
all
Rents; and (v) apply the receipts of all such Rents to the payment
of the
Obligations as provided in the Loan Agreement, after deducting
therefrom
all
expenses (including reasonable attorneys' fees and
disbursements)
incurred in connection with the aforesaid operations and all
amounts
necessary to pay the operating costs for the Mortgaged Property and
other
charges in connection with the Mortgaged Property, as well as just
and
reasonable compensation for the services of Beneficiary, its
agents,
nominees and attorneys.
(c) Beneficiary may elect to cause the Mortgaged Property or any
part
thereof to be sold under the power of sale herein granted in any
manner
permitted by Applicable Law. Without limiting the generality of
the
foregoing:
(i) In connection with any sale or sales hereunder, Beneficiary
may elect to treat any of the Mortgaged Property which consists of
a
right in action or which is property that can be severed from the
real
property covered hereby or any improvements thereon without
causing
structural damage thereto as if the same were personal property,
and
dispose of the same in accordance with Applicable Law, separate
and
apart from the sale of real property. Any sale of any Personal
Property Collateral shall be conducted in any manner permitted
by
Chapter 6 of Division 9 of the Uniform Commercial Code or any
other
applicable provision of the Uniform Commercial Code. Where the
Mortgaged Property consists of real and personal property or
fixtures,
whether or not such personal property is located on or within the
real
property, Beneficiary may elect in its discretion to exercise
its
rights and remedies against any or all of the real property,
personal
property, and fixtures in such order and manner as is now or
hereafter
permitted by Applicable Law.
(ii) Beneficiary may, in its sole and absolute discretion and
without regard to the adequacy of its security, elect to
proceed
against any or all of the real property and Personal Property
Collateral in any manner permitted under Section 9604(a) of the
Uniform Commercial Code; and if Beneficiary elects to proceed in
the
manner permitted under Section 9604(a)(1)(B) of the Uniform
Commercial
Code, the
power of sale herein granted shall be exercisable with
respect to all or any of the real property, personal property
and
fixtures covered hereby, as designated by Beneficiary, and Trustee
is
hereby authorized and empowered to conduct any such sale of any
real
property, personal property and fixtures in accordance with the
procedures applicable to real property.
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(iii) Where the Mortgaged Property consists of real property
and
personal property, any reinstatement of the Obligations,
following
default and an election by Beneficiary to accelerate the maturity
of
the Obligations, which is made by Grantor or any other person
or
entity permitted to exercise the right of reinstatement under
Applicable Law, shall, except to the extent otherwise provided
in
Section 9604(a)(3)(C) of the Uniform Commercial Code, not
prohibit
Beneficiary from
conducting a sale or other disposition of any
personal property or fixtures or from otherwise proceeding against
or
continuing to proceed against any personal property or fixtures in
any
manner permitted by Applicable Law; nor shall any such
reinstatement
invalidate, rescind or otherwise affect any sale, disposition or
other
proceeding held, conducted or instituted with respect to any
personal
property or fixtures prior to such reinstatement or pending at
the
time of such reinstatement.
(iv) Should Beneficiary elect to sell any portion of the
Mortgaged Property which is real property or which is personal
property or fixtures that Beneficiary has elected under Section
9604(a)(1)(B) of the Uniform Commercial Code to sell together
with
real property in accordance with Applicable Law governing a sale
of
real property, Beneficiary or Trustee shall give such notice of
default and election to sell as may then be required by
Applicable
Law. Thereafter, upon the expiration of such time and the giving
of
such notice of sale as may then be required by Applicable Law,
and
without the necessity of any other demand on Grantor, Trustee, at
the
time and place specified in the notice of sale, shall sell said
real
property or part thereof at public auction to the highest bidder
for
cash in lawful money of the United States. Trustee may, and
upon
request of Beneficiary shall, from time to time, postpone any
sale
hereunder by public announcement thereof at the time and place
noticed
therefor.
(v) If the Mortgaged Property consists of several lots, parcels
or items of property, Beneficiary may: (A) designate the order
in
which such lots, parcels or items shall be offered for sale or
sold,
or (B) elect to sell such lots, parcels or items through a
single
sale, or through two (2) or more successive sales, or in any
other
manner Beneficiary deems in its best interest. Any person,
including
Grantor, Trustee or Beneficiary, may purchase at any sale
hereunder,
and
Beneficiary shall have the right to purchase at any sale
hereunder
by crediting upon the bid price the amount of all or any part of
the
indebtedness hereby secured. Should Beneficiary desire that more
than
one (1) sale or other disposition of the Mortgaged Property be
conducted, Beneficiary may, at its option, cause the same to be
conducted simultaneously, or successively, on the same day, or at
such
different days or times and in such order as Benefic
