Closing Index Loan (334K)
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CLOSING INDEX
MIDWEST BANKCENTRE
LOAN TO
CMC REAL ESTATE COMPANY LLC
$8,000,000.00
RE: 7711 CARONDELET, CLAYTON, MISSOURI
AUGUST 8,2003
{TABLE}
{S} {C}
Promissory Note............................................................... 1
Deed of Trust................................................................. 2
Absolute Assignment of Rents and Leases....................................... 3
Tenant Estoppel and Subordination, Nondisturbance and Attornment Agreement.... 4
UCC-1 Financing Statement - Missouri Secretary of State....................... 5
UCC-1 Financing Statement - St. Louis County, Missouri........................ 6
Environmental Indemnity Agreement............................................. 7
Secretary's Certificate of CMC Real Estate Company, LLC....................... 8
{/TABLE}
(a) Certificate of Formation
(b) Certificates of Good Standing - Delaware and Missouri
(c) Operating Agreement
(d) Resolutions
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THIS PROMISSORY NOTE IS SECURED BY A DEED OF TRUST
CONTAINING FUTURE ADVANCE PROVISIONS GOVERNED BY
SECTION 443.055 R.S.MO., AS AMENDED
PROMISSORY NOTE
$8,000,000.00 August 8, 2003
St. Louis County, Missouri
CMC REAL ESTATE COMPANY, LLC, a Delaware limited liability company
d/b/a CMC Real Estate Management Company, LLC ("Borrower"), for value received,
hereby promises to pay on the Maturity Date (hereinafter defined) to the order
of MIDWEST BANKCENTRE (hereinafter called "Bank") at 8020 Forsyth Boulevard, St.
Louis, Missouri 63105 or any other holder hereof, the principal sum of up to
Eight Million and 00/100 Dollars ($8,000,000.00) or so much thereof as shall
have been advanced hereunder by Bank to Borrower from time to time in lawful
money of the United States of America and to pay interest monthly on said
principal sum (computed on the basis of a 360 day year counting the actual
number of days elapsed), at a floating rate per annum equal to the Prime Rate
(as hereinafter defined) minus one-fourth of one percent (.25%) (any change in
interest resulting from the change in such Prime Rate to be effective at the
beginning of the business day on which each such change in the Prime Rate is
effective), but in no event to exceed the maximum rate permitted by law. For
purposes hereof, the term "Prime Rate" means, as of any date, a floating per
annum rate of interest which at any time, and from time to time, shall be most
recently announced by Bank as its Prime Rate, which is not intended to be Bank's
lowest or most favorable rate of interest at any one time. From and after the
maturity of this Note, whether by acceleration or otherwise, to the extent
permitted by law interest on the unpaid principal and interest of this Note
shall accrue at an annual rate equal to three (3) percent over the rate of
interest that would otherwise then be payable On this Note. Notwithstanding
anything contained herein to the contrary, Bank shall not be required to accept
any payment that is tendered more than ten (10) days from the date when due, but
if Bank does accept such payment, Borrower shall also pay a late charge equal to
the greater of (i) $25.00, or (ii) five percent (5%) of the amount past due. If
any payment of principal or interest on this note shall become due on a
Saturday, Sunday or public holiday under the laws of the State of Missouri on
which Bank is not open for business, such payment shall be made on the next
succeeding business day of Bank, and any such extension or reduction of time
shall hi such case be included in computing interest in connection with such
payment.
The principal of this Note shall be due and payable in installments of
Twenty Four Thousand and 00/100 Dollars ($24,000.00) each commencing on
September 1, 2003 and continuing on the first day of each succeeding month
thereafter until this Note shall have been paid in full and accrued unpaid
interest on this Note shall be due and payable on September 1, 2003 and on the
first day of each succeeding month thereafter until all principal and accrued
interest owing on this Note shall have been fully paid; provided, however, that
on September 1, 2008 (the "Maturity Date") the final maturity of this Note, the
entire principal balance of this Note then unpaid and all accrued interest then
unpaid shall be finally due and payable.
This Note is secured by a Deed of Trust, Assignment and Security
Agreement, an Absolute Assignment of Rents and Leases and an Environmental
Indemnity Agreement all of even date herewith which, together with this Note,
are hereinafter sometimes referred to collectively as the "Loan Documents".
Borrower may, at Borrower's option, repay without premium or penalty
either the full amount of this promissory note or any lesser sum which is
$1,000.00 or an integral multiple thereof. All payments hereunder shall be
applied first against fees and charges payable hereunder, then to interest and
then to reduction of principal. Partial prepayments will not excuse any
scheduled payments due hereunder- No amounts prepaid or repaid hereunder may be
reborrowed. At the option of the holder hereof the entire unpaid principal
balance hereof and accrued interest hereon shall be immediately due and payable
upon the occurrence of any "Default" under any of the Loan Documents which has
not been timely cured within any applicable cure period.
Borrower and each maker, surety, endorser and guarantor of this
promissory note hereby agree that: (i) this promissory note may, at the sole
option of Bank, be extended or renewed one or more times and the time for
payment of this promissory note or any renewal note may be extended without
notice to or consent of any person obligated on this promissory note; (ii) Bank
may elect to enforce this promissory note against less than all of the persons
directly or indirectly obligated hereon; (iii) Bank is not obligated to
foreclose upon or exhaust any collateral or pursue any guaranties given for or
in connection with this promissory note before proceedings against any person
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directly or indirectly obligated hereon; and (iv) presentment, demand for
payment, notice of non-payment, protest, notice of protest, notice of dishonor,
and all other notices in connection with this promissory note, filing of suit
and diligence in collecting this promissory note, are waived other than as
provided in the Loan Documents. All waivers by Bank shall be in writing. Bank
reserves the right to waive or refrain from waiving any right or remedy under
this promissory note. No delay or omission on the part of Bank in exercising any
right or remedy shall operate as a waiver of such right or remedy. A waiver on
one occasion shall not be a waiver on any future occasion.
Borrower also promises to pay, in addition to the full amount due
hereon, all reasonable expenses incurred by the holder in enforcing this
promissory note, including without limitation, the reasonable fees and expenses
of any attorney to whom this promissory note is referred for collection (whether
or not litigation is commenced) or for representation in proceedings under any
bankruptcy, receivership or insolvency law.
Notwithstanding anything to the contrary herein, Borrower's liability
hereunder is limited as provided in Section 6.28 of the Deed of Trust,
Assignment and Security Agreement
This promissory note is made in the State of Missouri and is governed
by the internal Laws of the State of Missouri. BORROWER AND BANK HEREBY SUBMIT
AND CONSENT TO THE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURTS LOCATED IN
THE CITY OR COUNTY OF ST. LOUIS, MISSOURI FOR THE PURPOSE OF LITIGATION
INVOLVING THIS PROMISSORY NOTE AND ANY OTHER AGREEMENT EXECUTED IN CONNECTION
WITH THIS PROMISSORY NOTE. BORROWER AND BANK WAIVE ANY AND ALL RIGHTS TO CONTEST
SAID JURISDICTION AND VENUE AND WAIVE ANY RIGHTS TO COMMENCE ANY ACTION AGAINST
EACH OTHER IN ANY JURISDICTION EXCEPT THE SITUS SPECIFIED ABOVE. BORROWER AND
BANK HEREBY MUTUALLY WAIVE THEIR RIGHT TO A TRIAL BY JURY IN THE EVENT THAT
LITIGATION IS COMMENCED BY EITHER PARTY WITH RESPECT HERETO.
"ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FOREBEAR FROM
ENFORCING PAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE
NOT ENFORCEABLE. TO PROTECT YOU (BORROWER(S)) AND US (CREDITOR) FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH
MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING
TO MODIFY IT."
"BORROWER"
CMC REAL ESTATE COMPANY, LLC, a Delaware limited
liability company d/b/a CMC Real Estate Management
Company, LLC
By: /s/ Michael F. Neidorff
----------------------------------------------
Michael F. Neidorff, Manager
Tax I.D. Number: 20-005-7283
2
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(Space above reserved for Recorder of Deeds)
Title of Document: Deed of Trust, Assignment and Security Agreement
Date of Document: August 8th, 2003
Grantor: CMC Real Estate Company, LLC d/b/a CMC Real Estate
Management Company, LLC
Grantor's Address: c/o Centene Corporation
7711 Carondelet
St. Louis, Missouri 63105
Grantee: Midwest BankCentre
Grantee's Address: 8020 Forsyth Boulevard
Clayton, Missouri 63105
Legal Description: See Exhibit A on Page 32.
AFTER RECORDING, PLEASE MAIL DOCUMENT TO:
ROBERT T. WEST
PASTER, WEST & KRANER, P.C.
100 S. BRENTWOOD BLVD., SUITE 401
CLAYTON, MISSOURI 63105
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[MISSOURI FORM]
DEED OF TRUST,
ASSIGNMENT AND SECURITY AGREEMENT
NAME OF THE NOTEHOLDER SECURED BY THIS DEED OF TRUST: MIDWEST BANKCENTRE
ADDRESS AT WHICH COMMUNICATIONS TO THE NOTEHOLDER MAY MIDWEST BANKCENTRE
BE MAILED OR DELIVERED: 8020 FORSYTH BOULEVARD
ST. LOUIS, MISSOURI 63105
THIS DEED OF TRUST, ASSIGNMENT AND SECURITY AGREEMENT (this "Deed of
Trust") is made this_______day of August, 2003, by CMC REAL ESTATE COMPANY, LLC,
a Delaware limited liability company d/b/a CMC Real Estate Management Company,
LLC, Grantor, with its main office at 7711 Carondelet, Clayton, Missouri 63105
in favor of TIMOTHY REEVES, Trustee, for the benefit of MIDWEST BANKCENTRE,
Lender, with its main offices at 8020 Forsyth Boulevard, St. Louis, Missouri
63105.
ARTICLE 1 - CERTAIN DEFINITIONS; GRANTING CLAUSES: SECURED INDEBTEDNESS
SECTION 1.1. PRINCIPAL SECURED. This Deed of Trust secures the
aggregate principal amount of Eight Million and 00/100 Dollars ($8,000,000-00).
SECTION 1.2. CERTAIN DEFINITIONS AND REFERENCE TERMS. In addition to
other terms defined herein, each of the following terms shall have the meaning
assigned to it:
"GRANTOR": CMC Real Estate Company, LLC d/b/a CMC Real Estate
Management Company, LLC and its permitted successors and assigns.
"LENDER" or "HOLDER": Midwest BankCentre, a state banking company, its
successors and assigns.
"NOTE": Promissory Note dated August__________, 2003 made by Grantor
payable to the order of Lender in the principal face amount of $8,000,000,00,
bearing interest as therein provided, containing a provision for, among other
things, the payment of attorneys' fees.
"TRUSTEE": Timothy Reeves, of the County of St. Louis, Missouri, or any
successor or substitute appointed and designated as herein provided from time to
time acting hereunder.
SECTION 1.3. PROPERTY. Grantor does hereby GRANT, BARGAIN, SELL,
CONVEY, TRANSFER, ASSIGN and SET OVER to Trustee the following: (a) the real
estate (herein called the "Land") described in Exhibit A which is attached
hereto and incorporated herein by reference, and (i) all improvements now or
hereafter situated or to be situated on the Land (herein together called the
"Improvements"): and (ii) all right, title and interest of Grantor in and to (I)
all streets, roads, alleys, sidewalks, easements, rights-of-way,
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licenses, rights of ingress and egress, vehicle parking rights and public
places, existing or proposed, abutting, adjacent, used in connection with or
pertaining to the Land or the Improvements; (2) any appendage or appurtenance
and any strips or gores between the Land and abutting or adjacent properties;
and (3) all water and water rights, timber, crops and mineral interests on or
pertaining to the Land (the Land, Improvements and other rights, titles and
interests referred to in this clause (a) being herein sometimes collectively
called the "Premises"); (b) all fixtures, equipment, systems, machinery,
furniture, furnishings, appliances, inventory, goods, building and construction
materials, supplies, and articles of persona! property, of every kind and
character, now owned or hereafter acquired by Grantor, which are now or
hereafter attached to or situated in, on or about the Land or the Improvements,
or used in or necessary to the complete and proper planning, development, use,
occupancy or operation thereof, or acquired (whether delivered to the Land or
stored elsewhere) for use or installation in or on the Land or the Improvements,
and all renewals and replacements of, substitutions for and additions to the
foregoing (the properties referred to in this clause (b) being herein sometimes
collectively called the "Accessories," all of which are hereby declared to be
permanent accessions to the Land); (c) all (i) plans and specifications for the
Improvements; (ii) Grantor's rights, but not liability for any breach by
Grantor, under all commitments (including any commitment for financing to pay
any of the secured indebtedness, as defined below), insurance policies and other
contracts and general intangibles (including but not limited to trademarks,
trade names and symbols) related to the Premises or the Accessories or the
operation thereof; (iii) deposits (including but not limited to Grantor's rights
in tenants' security deposits, deposits with respect to utility services to the
Premises, and any deposits or reserves hereunder or under any other Loan
Document for taxes, insurance or otherwise), money, accounts, instruments,
documents, notes and chattel paper arising from or by virtue of any transactions
related to the Premises or the Accessories; (iv) permits, licenses, franchises,
certificates, development rights, commitments and rights for utilities, and
other rights and privileges obtained in connection with the Premises or the
Accessories; (v) leases, rents, royalties, bonuses, issues, profits, revenues
and other benefits of the Premises and the Accessories (without derogation of
Article 3 hereof); (vi) oil, gas and coal and other minerals produced from or
allocated to the Land and all products processed or obtained therefrom, and the
proceeds thereof; and (vii) engineering, accounting, title, legal, and other
technical or business data concerning the Premises which are in the possession
of Grantor or in which Grantor can otherwise grant a security interest; and
(d)all (i) proceeds (cash or non-cash) of or arising from the properties,
rights, titles and interests referred to above in this Section 1.3, including
but not limited to proceeds of any sale, lease or other disposition thereof,
proceeds of each policy of insurance relating thereto (including premium
refunds), proceeds of the taking thereof or of any rights appurtenant thereto,
including change of grade of streets, curb cuts or other rights of access, by
condemnation, eminent domain or transfer in lieu thereof for public or
quasi-public use under any law, and proceeds arising out of any damage thereto
or destruction thereof; and (ii) other interests of every kind and character
which Grantor now has or hereafter acquires in, to or for the benefit of the
properties, rights, titles and interests referred to above in this Section 1.3
and all property used or useful in connection therewith, including but not
limited to rights of ingress and egress and hereditaments, remainders,
reversions and reversionary rights or interests; this conveyance shall include,
and the Hen and security interest created hereby shall encumber and extend to,
all other or additional title, estates, interests or rights which are now owned
or may hereafter be acquired by Grantor in or to the property demised; TO HAVE
AND TO HOLD the foregoing rights, interests and properties, and all rights,
estates, powers and privileges appurtenant thereto (herein collectively called
the "Property"), unto Trustee, and his successors or substitutes in this trust,
and to his or their successors and assigns, in trust, forever however, upon the
terms, provisions and conditions herein set forth, to secure the Note and Loan
Documents (as hereinafter defined) and all other indebtedness and matters
defined as "secured indebtedness" in Section 1-5 of this Deed of Trust.
SECTION 1.4. SECURITY INTEREST. Grantor hereby grants to Holder (as
hereinafter defined) a security interest in all of the Property which
constitutes personal property or fixtures (herein sometimes collectively called
the "Collateral"). In addition to its rights hereunder or otherwise, Holder
shall have all of the rights of a secured party under the Missouri Uniform
Commercial Code, or under the Uniform Commercial Code in force in any other
state to the extent the same is applicable law.
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SECTION 1.5. NOTE, LOAN DOCUMENTS, OTHER OBLIGATIONS. This Deed of
Trust is made to secure and enforce the payment and performance of the following
promissory notes, obligations, indebtedness, duties and liabilities and all
renewals, extensions, supplements, increases, and modifications thereof in whole
or in part from time to time: (a) the Promissory Note dated August ___ , 2003,
in the original principal amount of $8,000,000.00, from Grantor payable to
Lender, bearing other things, the payment of attorneys' fees, and all other
notes given in substitution therefor or in modification, supplement, increase,
renewal or extension thereof, in whole or in part (such note or notes, whether
one or more, as from time to time renewed, extended, supplemented, increased or
modified and all other notes given in substitution therefor, or in modification,
renewal or extension thereof, in whole or in part, being hereinafter called the
"Note", and Lender, or the subsequent holder at the time in question of the Note
or any of the secured indebtedness, as hereinafter defined, being herein called
"Holder"): (b) all indebtedness and oilier obligations and duties owed by
Grantor to Holder now or hereafter incurred or arising pursuant to or permitted
by the provisions of the Note, this Deed of Trust, or any other document now or
hereafter evidencing, governing, guaranteeing, securing or otherwise executed in
connection with the loan evidenced by the Note, including but not limited to any
loan or credit agreement, letter of credit or reimbursement agreement, tri-party
financing agreement, interest rate protection agreement or other agreement
between Grantor and Holder, or among Grantor, Holder and any other party or
parties, pertaining to the repayment or use of the proceeds of the loan
evidenced by the Note (the Note, this Deed of Trust and such other documents, as
they or any of them may have been or may be from time to time renewed, extended,
supplemented, increased or modified, being herein sometimes collectively called
the "Loan Documents"). The indebtedness referred to in this Section 1-5 is
hereinafter sometimes referred to as the "secured indebtedness" or the
"indebtedness secured hereby."
ARTICLE 2 - REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 2.1. Grantor represents, warrants, and covenants as follows:
(a) PAYMENT AND PERFORMANCE. Grantor will make due and punctual
payment of the secured indebtedness. Grantor will timely and properly perform
and comply with all of the covenants, agreements, and conditions imposed upon it
by this Deed of Trust and the other Loan Documents and will not permit a default
to occur hereunder or thereunder. Time shall be of the essence in this Deed of
Trust
(b) TITLE AND PERMITTED ENCUMBRANCES. Grantor has, in Grantor's
own right, and Grantor covenants to maintain, lawful, good and marketable title
to the Property, free and clear of all liens, charges, claims, security
interests, and encumbrances except for (i) the matters, if any, set forth under
the heading "Permitted Encumbrances" in Exhibit B hereto, which are Permitted
Encumbrances only to the extent the same are valid and subsisting and affect the
Property, (ii) the liens and security interests evidenced by this Deed of Trust,
(iii) statutory liens for real estate taxes and assessments on the Property
which are not yet delinquent, and (iv) other liens and security interests (if
any) in favor of Lender (the matters described in the foregoing clauses (i),
(ii), (iii) and (iv) being herein called the "permitted Encumbrances").
Grantor, and Grantor's successors and assigns, will warrant generally and
forever defend title to the Property, subject as aforesaid, to Trustee and
Trustee's successors or substitutes and assigns, against the claims and demands
of all persons claiming or to claim the same or any part thereof. Grantor will
punctually pay, perform, observe and keep all covenants, obligations and
conditions in or pursuant to any Permitted Encumbrance and will not modify or
permit modification of any Permitted Encumbrance without the prior written
consent of Holder. Inclusion of any matter as a Permitted Encumbrance does not
constitute approval or waiver by Holder of any existing or future violation or
other breach thereof by Grantor, by the Property or otherwise. If any right or
interest of Holder in the Property or any part thereof shall be endangered or
questioned or shall be attacked directly or indirectly, Trustee and Holder, or
either of them (whether or not named as parties to legal proceedings with
respect thereto), are hereby authorized and empowered to take such steps as in
their discretion may be proper for the defense of any such legal proceedings or
the protection of such right or
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interest of Holder, including but not limited to the employment of independent
counsel, the prosecution or defense of litigation, and the compromise or
discharge of adverse claims. All expenditures so made of every kind and
character shall be a demand obligation (which obligation Grantor hereby promises
to pay) owing by Grantor to Holder or Trustee (as the case may be), and the
party (Holder or Trustee, as the case may be) making such expenditures shall be
subrogated to all rights of the person receiving such payment.
(c) TAXES AND OTHER IMPOSITIONS. Grantor will pay, or cause to be
paid, all taxes, assessments and other charges or levies imposed upon or against
or with respect to the Property or the ownership, use, occupancy or enjoyment of
any portion thereof, or any utility service thereto, as the same become due and
payable, including but not limited to all real estate taxes assessed against the
Property or any part thereof, and shall deliver promptly to Holder such evidence
of the payment thereof as Holder may require.
(d) INSURANCE. Grantor shall obtain and maintain at Grantor's sole
expense: (1) mortgagee title insurance issued to Holder covering the Premises as
required by Holder, without exception for mechanics' Hens; (2) all-risk
insurance with respect to all insurable Property, against loss or damage by
fire, lightning, windstorm, explosion, hail, tornado and such hazards as are
presently included in so-called "all-risk" coverage and against such other
insurable hazards as Holder may require, in an amount not less than 100% of the
full replacement cost, including the cost of debris removal, without deduction
for depreciation and sufficient to prevent Grantor and Holder from becoming a
coinsurer, such insurance to be in Builder's Risk (non-reporting) form during
and with respect to any construction on the Premises; (3) if and to the extent
any portion of the Premises is in a special flood hazard area, a flood insurance
policy in an amount equal to the lesser of the principal face amount of the Note
or the maximum amount available; (4) comprehensive general public liability
insurance, on an "occurrence" basis, for the benefit of Grantor and Holder as
named insureds; (5) statutory workers' compensation insurance with respect to
any work on or about the Premises; and (6) such other insurance on the Property
as may from time to time be required by Holder (including but not limited to
business interruption insurance, boiler and machinery insurance, earthquake
insurance, and war risk insurance) and against other insurable hazards or
casualties which ai the time are commonly insured against in the case of
premises similarly situated, due regard being given to the height, type,
construction, location, use and occupancy of buildings and improvements. All
insurance policies shall be issued and maintained by insurers, in amounts, with
deductibles, and in form satisfactory to Holder, and shall require not less than
thirty (30) days' prior written notice to Holder of any cancellation or change
of coverage. All insurance policies maintained, or caused to be maintained, by
Grantor with respect to the Property, except for public liability insurance,
shall provide that each such policy shall be primary without right of
contribution from any other insurance that may be carried by Grantor or Holder
and that all of the provisions thereof, except the limits of liability, shall
operate in the same manner as if there were a separate policy covering each
insured. If any insurer which has issued a policy of title, hazard, liability or
other insurance required pursuant to this Deed of Trust or any other Loan
Document becomes insolvent or the subject of any bankruptcy, receivership or
similar proceeding or if in Holder's reasonable opinion the financial
responsibility of such insurer is or becomes inadequate, Grantor shall, in each
instance promptly upon the request of Holder and at Grantor's expense, obtain
and deliver to Holder a like policy (or, if and to the extent permitted by
Holder, a certificate of insurance) issued by another insurer, which insurer and
policy meet the requirements of this Deed of Trust or such other Loan Document,
as the case may be. Without limiting the discretion of Holder with respect to
required endorsements to insurance policies, all such policies for loss of or
damage to the Property shall contain a standard mortgagee clause (without
contribution) naming Holder as mortgagee with loss proceeds payable to Holder
notwithstanding (i) any act, failure to act or negligence of or violation of any
warranty, declaration or condition contained in any such policy by any named
insured; (ii) the occupation or use of the Property for purposes more hazardous
than permitted by the terms of any such policy; (iii) any foreclosure or other
action by Holder under the Loan Documents; or (iv) any change in title to or
ownership of the Property or any portion thereof, such proceeds to be held for
application as provided in the Loan Documents. The originals of each initial
insurance policy (or to the extent permitted by Holder, a copy of the original
policy and a satisfactory certificate of insurance) shall be delivered to Holder
at the time of execution of this Deed of
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Trust, with premiums fully paid, and each renewal or substitute policy (or
certificate) shall be delivered to Holder, with premiums fully paid, at least
ten (10) days before the termination of the policy it renews or replaces.
Grantor shall pay all premiums on policies required hereunder as they become due
and payable and promptly deliver to Holder evidence satisfactory to Holder of
the timely payment thereof. If any loss occurs at any time when Grantor has
failed to perform Grantor's covenants and agreements in this paragraph, Holder
shall nevertheless be entitled to the benefit of all insurance covering the loss
and held by or for Grantor, to the same extent as if it had been made payable to
Holder. Upon any foreclosure hereof or transfer of title to the .Property in
extinguishment of the whole or any part of the secured indebtedness, all of
Grantor's right, title and interest in and to the insurance policies referred to
in this Section (including unearned premiums) and all proceeds payable
thereunder shall thereupon vest in the purchaser at foreclosure or other such
transferee, to the extent permissible under such policies. Holder shall have the
right (but not the obligation) to make proof of loss for, settle and adjust any
claim under, and receive the proceeds of, all insurance for loss of or damage to
the Property, and the expenses incurred by Holder in the adjustment and
collection of insurance proceeds shall be a part of the secured indebtedness and
shall be due and payable to Holder on demand. Holder shall not be, under any
circumstances, liable or responsible for failure to collect or exercise
diligence in the collection of any of such proceeds or for the obtaining,
maintaining or adequacy of any insurance or for failure to see to the proper
application of any amount paid over to Grantor. Any such proceeds received by
Holder shall, after deduction therefrom of all reasonable expenses actually
incurred by Holder, including attorneys' fees, at Holder's option be (1)
released to Grantor, or (2) applied (upon compliance with such terms and
conditions as may be required by Holder) to repair or restoration, either partly
or entirely, of the Property so damaged, or (3) applied to the payment of the
secured indebtedness in such order and manner as Holder, in its sole discretion,
may elect, whether or not due. In any event, the unpaid portion of the secured
indebtedness shall remain in full force and effect and the payment thereof shall
not be excused. Grantor shall at all times comply with the requirements of the
insurance policies required hereunder and of the issuers of such policies and of
any board of fire underwriters or similar body as applicable to or affecting the
Property.
(e) RESERVE FOR INSURANCE, TAXES AND ASSESSMENTS. Upon request of
Holder, to secure certain of Grantor's obligations in paragraphs (c) and (d)
above, but not in lieu of such obligations, Grantor will deposit with Holder a
sum equal to real estate taxes, assessments and charges (which charges for the
purpose of this paragraph shall include without limitation any recurring charge
which could result in a lien against the Property) against the Property for the
current year, the premiums for such policies of insurance for the current year,
and sewer usage charges, all as estimated by Holder and prorated to the end of
the calendar month following the month during which Holder's request is made,
and thereafter will deposit with Holder, on each date when an installment of
principal and/or interest is due on the Note, sufficient funds (as estimated
from time to time by Holder) to permit Holder to pay at least forty-five (45)
days prior to the due date thereof, the next maturing real estate taxes,
assessments and charges and premiums for such policies of insurance. Holder
shall have the right to rely upon tax information furnished by applicable taxing
authorities in the payment of such taxes or assessments and shall have no
obligation to make any protest of any such taxes or assessments. Any excess over
the amounts required for such purposes shall be held by Holder for future use,
applied to any secured indebtedness or refunded to Grantor, at Holder's option,
and any deficiency in such funds so deposited shall be made up by Grantor upon
demand of Holder All such funds so deposited shall bear no interest, may be
mingled with the general funds of Holder and shall be applied by Holder toward
the payment of such taxes, assessments, charges and premiums when statements
therefor are presented to Holder by Grantor (which statements shall be presented
by Grantor to Holder a reasonable time before the applicable amount is due);
provided, however, that, if a default shall have occurred hereunder, such funds
may at Holder's option be applied to the payment of the secured indebtedness in
the order determined by Holder in its sole discretion, and that Holder may (but
shall have no obligation) at any time, in its discretion, apply all or any part
of such funds toward the payment of any such taxes, assessments, charges or
premiums which are past due, together with any penalties or late charges with
respect thereto. The conveyance or transfer of Grantor's interest in the
Property for any reason (including without limitation the foreclosure of a
subordinate lien or security interest or a transfer by operation of law) shall
constitute an assignment or transfer of
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Grantor's interest in and rights to such funds held by Holder under this
paragraph but subject to the rights of Holder hereunder.
(f) CONDEMNATION. Grantor shall notify Holder immediately of ray
threatened or pending proceeding for condemnation affecting the Property or
arising out of damage to the Property, and Grantor shall, at Grantor's expense,
diligently prosecute any such proceedings. Holder shall have the right (but not
the obligation) to participate in any such proceeding and to be represented by
counsel of its own choice. Holder shall be entitled to receive all sums which
may be awarded or become payable to Grantor for the condemnation of the
Property, or any pan thereof, for public or quasi-public use, or by virtue of
private sale in lieu thereof, and any sums which may be awarded or become
payable to Grantor for injury or damage to the Property. Grantor shall, promptly
upon request of Holder, execute such additional assignments and other documents
as may be necessary from time to time to permit such participation and to enable
Holder to collect and receipt for any such sums. All such sums are hereby
assigned to Holder, and shall, after deduction therefrom of all reasonable
expenses actually incurred by Holder, including attorneys' fees, at Holder's
option be (1) released to Grantor, or (2) applied (upon compliance with such
terms and conditions as may be required by Holder) to repair or restoration of
the Property so affected, or (3) applied to the payment of the secured
indebtedness in such order and manner as Holder, in its sole discretion, may
elect, whether or not due. In any event the unpaid portion of the secured
indebtedness shall remain in full force and effect and the payment thereof shall
not be excused. Holder shall not be, under any circumstances, liable or
responsible for failure to collect or to exercise diligence in the collection of
any such sum or for failure to see to the proper application of any amount paid
over to Grantor, Holder is hereby authorized, in the name of Grantor, to execute
and deliver valid acquittances for, and to appeal from, any such award, judgment
or decree. All costs arid expenses (including but not limited to attorneys'
fees) incurred by Holder in connection with any condemnation shall be a demand
obligation owing by Grantor (which Grantor hereby promises to pay) to Holder
pursuant to this Deed of Trust.
(g) COMPLIANCE WITH LEGAL REQUIREMENTS. The Property and the use,
operation and maintenance thereof and all activities thereon do and shall at all
times comply with all applicable Legal Requirements (hereinafter defined). The
Property is not, and shall not be, dependent on any other property or premises
or any interest therein other than the Property to fulfill any requirement of
any Legal Requirement. Grantor shall not, by act or omission, permit any
building or other improvement not subject to the lien of this Deed of Trust to
rely on the Property or any interest therein to fulfill any requirement of any
Legal Requirement. No part of the Property constitutes a nonconforming use under
any zoning law or similar law or ordinance. Grantor has obtained and shall
preserve in force all requisite zoning, utility, building, health and operating
permits from the governmental authorities having jurisdiction over the Property.
If Grantor receives a notice or claim from any person that the Property, or any
use, activity, operation or maintenance thereof or thereon, is not in compliance
with any Legal Requirement, Grantor will promptly furnish a copy of such notice
or claim to Holder. Grantor has received no notice and has no knowledge of any
such noncompliance. As used in this Deed of Trust: (i) the term
"Legal Requirement" means any Law (hereinafter defined), agreement, covenant,
restriction, easement or condition (including, without limitation of the
foregoing, any condition or requirement imposed by any insurance or surety
company), as any of the same now exists or may be changed or amended or come
into effect in the future; and (ii) the term "Law" means any federal, state or
local law, statute, ordinance, code, rule, regulation, license, permit,
authorization, constitution, treaty, judgment, award, writ, decision, order,
injunction or decree, domestic or foreign.
(h) MAINTENANCE, REPAIR AND RESTORATION. Grantor will keep the
Property in first class order, repair, operating condition and appearance,
causing all necessary repairs, renewals, replacements, additions and
improvements to be promptly made, and will not allow any of the Property to be
misused, abused or wasted or to deteriorate. Notwithstanding the foregoing,
Grantor will not, without the prior written consent of Holder, (i) remove from
the Property any fixtures or personal property covered by this Deed of Trust
except
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such as is replaced by Grantor by an article of equal suitability and value,
owned by Grantor, free and clear of any lien or security interest (except that
created by this Deed of Trust), or (ii) make any structural alteration to the
Property or any other alteration thereto which impairs the value thereof. if any
act or occurrence of any kind or nature (including any condemnation or any
casualty for which insurance was not obtained or obtainable) shall result in
damage to or loss or destruction of the Property, Grantor shall give prompt
notice thereof to Holder and Grantor shall promptly, at Grantor's sole cost and
expense and regardless of whether insurance or condemnation proceeds (if any)
shall be available or sufficient for the purpose, commence and continue
diligently to completion to restore, repair, replace and rebuild the Property as
nearly as possible to its value, condition and character immediately prior to
the damage, loss or destruction.
(i) NO OTHER LIENS. Grantor will not, without the prior written
consent of Holder, create, place or permit to be created or placed, or through
any act or failure to act, acquiesce in the placing of, or allow to remain, any
deed of trust, mortgage, voluntary or involuntary lien, whether statutory,
constitutional or contractual, security interest, encumbrance or charge, or
conditional sale or other title retention document, against or covering the
Property, or any part thereof, other than the Permitted Encumbrances, regardless
of whether the same are expressly or otherwise subordinate to the lien or
security interest created in this Deed of Trust, and should any of the foregoing
become attached hereafter in any manner to any part of the Property without the
prior written consent of Holder, Grantor will cause the same to be promptly
discharged and released. Grantor will own all parts of the Property and will not
acquire any fixtures, equipment or other property forming a part of the Property
pursuant to a lease, license, security agreement or similar agreement, whereby
any party has or may obtain the right to repossess or remove same, without the
prior written consent of Holder.
(j) OPERATION OF PROPERTY. Grantor will operate the Property in a
good and workmanlike manner and in accordance with all Legal Requirements and
will pay all fees or charges of any kind in connection therewith. Grantor will
keep the Property occupied so as not to impair the insurance carried thereon.
Grantor will not use or occupy or conduct any activity on, or allow the use or
occupancy of or the conduct of any activity on, the Property in any manner which
violates any Legal Requirement or which constitutes a public or private nuisance
or which makes void, voidable or cancelable, or increases the premium of, any
insurance then in force with respect thereto. Grantor will not initiate or
permit any zoning reclassification of the Property or seek any variance under
existing zoning ordinances applicable to the Property or use or permit the use
of the Property in such a manner which would result in such use becoming a
nonconforming use under applicable zoning ordinances or other Legal
Requirement. Grantor will not impose any easement, restrictive covenant or
encumbrance upon the Property, execute or file any subdivision plat or
condominium declaration affecting the Property or consent to the annexation of
the Property to any municipality, without the prior written consent of Holder.
Grantor will not do or suffer to be done any act whereby the value of any part
of the Property may be lessened. Grantor will preserve, protect, renew, extend
and retain all material rights and privileges granted for or applicable to the
Property. Without the prior written consent of Holder, there shall be no
drilling or exploration for or extraction, removal or production of any mineral,
hydrocarbon, gas, natural element, compound or substance (including sand and
gravel) from the surface or subsurface of the Land regardless of the depth
thereof or the method of mining or extraction thereof. Grantor will cause all
debts and liabilities of any character (including without limitation all debts
and liabilities for labor, material and equipment and all debts and charges for
utilities servicing the Property) incurred in the construction, maintenance,
operation and development of the Property to be promptly paid.
(k) FINANCIAL MATTERS. Grantor is solvent after giving effect to
all borrowings contemplated by the Loan Documents and no proceeding under any
Debtor Relief Law (hereinafter defined) is pending (or, to Grantor's knowledge,
threatened) by or against Grantor, or any affiliate of Grantor, as a debtor. All
reports, statements, plans, budgets, applications, agreements and other data and
information heretofore furnished or hereafter to be furnished by or on behalf of
Grantor to Holder in connection with the loan or loans evidenced by the Loan
Documents (including, without limitation, all financial statements and financial
information) are
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and will be true, correct and complete in all material respects as of their
respective dates and do not and will not omit to state any fact or circumstance
necessary to make the statements contained therein not misleading. No material
adverse change has occurred since the dates of such reports, statements and
other data in the financial condition of Grantor or, to Grantor's knowledge, of
any tenant under any lease described therein. For the purposes of this
paragraph, "Grantor" shall also include any person liable directly or indirectly
for the secured indebtedness or any part thereof and any joint venturer or
general partner of Grantor.
(i) STATUS OF GRANTOR; SUITS AND CLAIMS; LOAN DOCUMENTS. If
Grantor is a corporation, partnership, limited liability company, or other legal
entity, Grantor is and will continue to be (i) duly organized, validly existing
and in good standing under the laws of its state of organization, (ii)
authorized to do business in, and in good standing in, each state in which the
Property is located, and (iii) possessed of all requisite power and authority to
carry on its business and to own and operate the Property. Each Loan Document
executed by Grantor has been duly authorized, executed and delivered by Grantor,
and the obligations thereunder and the performance thereof by Grantor in
accordance with their terms are and will continue to be within Grantor's power
and authority (without the necessity of jointer or consent of any other person),
are not and will not be in contravention of any Legal Requirement or any other
document or agreement to which Grantor or the Property is subject, and do not
and will not result in the creation of any encumbrance against any assets or
properties of Grantor, or any other person liable, directly or indirectly, for
any of the secured indebtedness, except as expressly contemplated by the Loan
Documents. There is no suit, action, claim, investigation, inquiry, proceeding
or demand pending (or, to Grantor's knowledge, threatened) which affects the
Property (including, without limitation, any which challenges or otherwise
pertains to Grantor's title to the Property) or the validity, enforceability or
priority of any of the Loan Documents. There is no judicial or administrative
action, suit or proceeding pending (or, to Grantor's knowledge, threatened)
against Grantor, or against any other person liable directly or indirectly for
the secured indebtedness, except as has been disclosed in writing to Holder in
connection with the loan evidenced by the Note. The Loan Documents constitute
legal, valid and binding obligations of Grantor (and of each guarantor, if any)
enforceable in accordance with their terms, except as the enforceability thereof
may be limited by Debtor Relief Laws (hereinafter defined) and except as the
availability of certain remedies may be limited by general principles of equity.
Grantor is not a "foreign person" within the meaning of the Internal Revenue
Code of 1986, as amended, Sections 1445 and 7701 (i. e. Grantor is not a
non-resident alien, foreign corporation, foreign partnership, foreign trust or
foreign estate as those terms are defined therein and in any regulations
promulgated thereunder). The loan evidenced by the Note is solely for business
and/or investment purposes, and is not for personal, family, household or
agricultural purposes. Grantor will not cause or permit any change to be made in
its name, identity, or corporate or partnership structure, unless Grantor shall
have notified Holder of such change prior to the effective date of such change,
and shall have first taken all action required by Holder for the purpose of
further perfecting or protecting the lien and security interest of Holder in the
Property. Grantor's principal place of business and chief executive office, and
the place where Grantor keeps its books and records concerning the Property, has
for the preceding four months been and will continue to be (unless Grantor
notifies Holder of any change in writing prior to the date of such change) the
address of Grantor set forth at the end of this Deed of Trust.
(m) CERTAIN ENVIRONMENTAL MATTERS. Grantor shall comply with the
terms and covenants of that certain Environmental Indemnity Agreement dated of
even date herewith (the "Environmental Agreement").
(n) FURTHER ASSURANCES. Grantor will, promptly on request of
Holder, (i) correct any defect, error or omission which may be discovered in the
contents, execution or acknowledgment of this Deed of Trust or any other Loan
Document; (ii) execute, acknowledge, deliver, procure and record and/or file
such further documents (including, without limitation, further deeds of trust,
security agreements, financing statements, continuation statements, and
assignments of rents or leases) and do such further acts as may be necessary,
desirable or proper to carry out more effectively the purposes of this Deed of
Trust and the other Loan Documents, to more fully identify and subject to the
liens and security interests hereof any property
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intended to be covered hereby (including specifically, but without limitation,
any renewals, additions, substitutions, replacements, or appurtenances to the
Property) or as deemed advisable by Holder to protect the lien or the security
interest hereunder against the rights or interests of third persons; and (iii)
provide such certificates, documents, reports, information, affidavits and other
instruments and do such further acts as may be necessary, desirable or proper in
the reasonable determination of Holder to enable Holder to comply with the
requirements or requests of any agency having jurisdiction over Holder or any
examiners of such agencies with respect to the indebtedness secured hereby,
Grantor or the Property. Grantor shall pay all costs connected with any of the
foregoing, which shall be a demand obligation owing by Grantor (which Grantor
hereby promises to pay) to Holder pursuant to this Deed of Trust.
(o) FEES AND EXPENSES. Without limitation of any other provision
of this Deed of Trust or of any other Loan Document and to the extent not
prohibited by applicable law, Grantor will pay, and will reimburse to Holder
and/or Trustee on demand to the extent paid by Holder and/or Trustee: (i) all
appraisal fees, recordation, transfer and other filing, registration and
recording fees, taxes, brokerage fees and commissions, abstract fees, title
search or examination fees, title policy and endorsement premiums and fees,
uniform commercial code search fees, judgment and tax Hen search fees, escrow
fees, attorneys' fees, architect fees, construction consultant fees,
environmental inspection fees, survey fees, and all other out-of-pocket costs
and expenses of every character incurred by Grantor or Holder and/or Trustee in
connection with the preparation of the Loan Documents, the evaluation, closing
and funding of the loan evidenced by the Loan Documents, and any and all
amendments and supplements to this Deed of Trust, the Note or any other Loan
Documents or any approval, consent, waiver, release or other matter requested or
required hereunder or thereunder, or otherwise attributable or chargeable to
Grantor as owner of the Property; and (ii) all costs and expenses, including
attorneys' fees and expenses, incurred or expended in connection with the
exercise of any right or remedy, or the defense of any right or remedy or the
enforcement of any obligation of Grantor, hereunder or under any other Loan
Document.
(p) INDEMNIFICATION.
(i) Grantor will indemnify and hold harmless Holder and
Trustee from and against, and reimburse them on demand for, any and all
Indemnified Matters (defined below). For purposes of this paragraph
(p), the terms "Holder" and "Trustee" shall include the directors,
officers, partners, employees and agents of Trustee and Holder,
respectively, and any persons owned or controlled by, owning or
controlling, or under common control or affiliated with Holder or
Trustee, respectively. Without limitation, the foregoing indemnities
shall apply to each indemnified person with respect to matters which in
whole or in part are caused by or arise out of the negligence of any
other indemnified person. However, such indemnities shall not apply to
a particular indemnified person to the extent that the subject of the
indemnification is caused by or arises out of the gross negligence or
willful misconduct of that indemnified person. Any amount to be paid
under this paragraph (p) by Grantor to Holder and/or Trustee shall be a
demand obligation owing by Grantor (which Grantor hereby promises to
pay) to Holder arid/or Trustee pursuant to this Deed of Trust. Nothing
in this paragraph, elsewhere in this Deed of Trust or in any other Loan
Document shall limit or impair any rights or remedies of Holder and/or
Trustee (including without limitation any rights of contribution or
indemnification) against Grantor or any other person under any other
provision of this Deed of Trust, any other Loan Document, any other
agreement or any applicable Legal Requirement.
(ii) As used herein, the term "Indemnified Matters" means
any and all claims, demands, liabilities (including strict liability),
losses, damages (including consequential damages), causes of action,
judgments, penalties, costs and expenses (including without limitation,
reasonable fees and expenses of attorneys and other professional
consultants and experts, and of the investigation and defense of any
claim, whether or not such claim is ultimately defeated, and the
settlement of any claim or judgment including all value paid or given
in settlement) of every kind, known or unknown,
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foreseeable or unforeseeable, which may be imposed upon, asserted
against or incurred or paid by Holder and/or Trustee at any time and
from time to time, whenever imposed, asserted or incurred because of,
resulting from, in connection with, or arising out of any transaction,
act, omission event or circumstance in any way connected with the
Property or with this Deed of Trust or any other Loan Document,
including but not limited to any bodily injury or death or property
damage occurring in or upon or in the vicinity of the Property through
any cause whatsoever, any act performed or omitted to be performed
hereunder or under any other Loan Document, any breach by Grantor of
any representation, warranty, covenant, agreement or condition
contained in this Deed of Trust or in any other Loan Document, any
default as defined herein, any claim under or with respect to any Lease
(hereinafter defined), or arising under the Environmental Agreement.
The indemnities in this paragraph (p) shall not terminate upon the
release, foreclosure or other termination of this Deed of Trust but
will survive the Release Date, foreclosure of this Deed of Trust or
conveyance in lieu of foreclosure, the repayment of the secured
indebtedness, the discharge and release of this Deed of Trust and the
other Loan Documents, any bankruptcy or other debtor relief proceeding,
and any other event whatsoever.
(q) RECORDS AND FINANCIAL REPORTS. Grantor will keep accurate
books and records in accordance with sound accounting principles in which full,
true and correct entries shall be promptly made with respect to the Property and
the operation thereof, and will permit all such books and records to be
inspected and copied, and the Property to be inspected and photographed, by
Holder and its representatives during normal business hours and at any other
reasonable times. Without limitation of other or additional requirements in any
of the other Loan Documents, (ii) Grantor's an income statement of Grantor
within one hundred twenty (120) days after the one-year anniversary of the date
of the most recent financial statement delivered to Holder in the case of an
individual, otherwise in all other cases, for each fiscal year of Grantor as
soon as reasonably practicable following the end of such fiscal year, but in any
event within ninety (90) days after the end thereof; and (Hi) Grantor's tax
returns within thirty (30) days after the due date therefore including
extensions. Each financial statement submitted pursuant to this paragraph shall
be prepared in accordance with generally accepted accounting principles,
consistently applied, and be certified in writing as true and correct by Grantor
(or if Grantor is not a natural person, by a representative of Grantor
acceptable to Holder). Grantor will furnish to Holder at Grantor's expense all
evidence which Holder may from time to time reasonably request as to compliance
with all provisions of the Loan Documents. Any inspection or audit of the
Property or the books and records of Grantor, or the procuring of documents and
financial and other information, by or on behalf of Holder shall be for Holder's
protection only, and shall not constitute any assumption of responsibility to
Grantor or anyone else with regard to the condition, construction, maintenance
or operation of the Property nor Holder's approval of any certification given to
Holder nor relieve Grantor of any of Grantor's obligations. Holder may from time
to time assign or grant participations in the secured indebtedness and Grantor
consents to the delivery by Holder to any acquirer or prospective acquirer of
any interest or participation in or with respect to all or part of the secured
indebtedness such information as Holder now or hereafter has relating to the
Property, Grantor, any party obligated for payment of any part of the secured
indebtedness, any tenant or guarantor under any lease affecting any part of the
Property and any agent or guarantor under any management agreement affecting any
part of the Property.
(r) TAXES ON NOTE OR PEED OF TRUST. Grantor will promptly pay all
income, franchise and other taxes owing by Grantor and any stamp, documentary,
recordation and transfer taxes or other taxes (unless such payment by Grantor is
prohibited by law) which may be required to be paid with respect to the Note,
this Deed of Trust or any other instrument evidencing or securing any of the
secured indebtedness. In the event of
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the enactment after this date of any law of any governmental entity applicable
to Holder, the Note, the Property or this Deed of Trust deducting from the value
of property for the purpose of taxation any lien or security interest thereon,
or imposing upon Holder the payment of the whole or any part of the taxes or
assessments or charges or hens herein required to be paid by Grantor, or
changing in any way the laws relating to the taxation of deeds of trust or
mortgages or security agreements or debts secured by deeds of trust or mortgages
or security agreements or the interest of the mortgagee or secured party in the
property covered thereby, or the manner of collection of such taxes, so as to
affect this Deed of Trust or the indebtedness secured hereby or Holder, then,
and in any such event, Grantor, upon demand by Holder, shall pay such taxes,
assessments, charges or liens, or reimburse Holder therefore; provided, however,
that if in the opinion of counsel for Holder (i) it might be unlawful to require
Grantor to make such payment or (ii) the making of such payment might result in
the imposition of interest beyond the maximum amount permitted by law, then and
in such event, Holder may elect, by notice in writing given to Grantor, to
declare all of the indebtedness secured hereby to be and become due and payable
sixty (60) days from the giving of such notice.
(s) STATEMENT CONCERNING NOTE OR DEED OF TRUST. Grantor shall at
any time and from time to time furnish within seven (7) days of request by
Holder a written statement in such form as may be required by Holder stating
that (i) the Note, this Deed of Trust and the other Loan Documents are valid and
binding obligations of Grantor, enforceable against Grantor in accordance with
their terms; (ii) the unpaid principal balance of the Note; (iii) the date to
which interest on the Note is paid; (iv) the Note, this Deed of Trust and the
other Loan Documents have not been released, subordinated or modified; and (v)
there are no offsets or defenses against the enforcement of the Note, this Deed
of Trust or any other Loan Document. If any of the foregoing statements are
untrue, Grantor shall, alternatively, specify the reasons therefor.
(t) DEBT SERVICE COVERAGE RATIO. (2) month period (or such shorter
period of time as Grantor has owned the Property), which Debt Service Coverage
Ratio shall be Such Ratio shall be For purposes hereof, "Net Operating Income"
shall be defined as (A) excluding income from early cancellation penalties or
other nontypical sources) for the applicable period for the applicable period,
including, but not limited to, real estate taxes, insurance premiums and a
management fee, but specifically excluding depreciation and capital
expenditures.
SECTION 2.2. PERFORMANCE BY HOLDER ON GRANTOR'S BEHALF. Grantor agrees
that, if Grantor fails to perform any act or to take any action which under any
Loan Document Grantor is required to perform or take, or to pay any money which
under any Loan Document Grantor is required to pay, and whether or not the
failure th
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