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FUTURE ADVANCE LEASEHOLD DEED OF TRUST,
This Document Serves as a Fixture Filing under Section 4-9-502, Colorado Revised Statutes as amended
Grantor’s Organizational Identification
Numbers are 4948433 (Delaware)
Future Advance Leasehold Deed of Trust, of
Leases and Rents,
This Future Advance Leasehold Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing Securing Future Advances (this “ Deed of Trust ”), is made as of the 14th day of September, 2011 by G&E HC REIT II ST. ANTHONY NORTH DENVER MOB, LLC, a Delaware limited liability company (“ Grantor ”), whose address is c/o Grubb & Ellis Equity Advisors, LLC, 1551 North Tustin Avenue, Suite 300, Santa Ana, California 92705, Attention: Danny Prosky, to the PUBLIC TRUSTEE OF ADAMS COUNTY COLORADO (“ Trustee ”) for the benefit of BANK OF AMERICA, N.A., a national banking association with an address at 135 South LaSalle Street, 6 th Floor, Chicago, Illinois 60603, Attention: Michelle Herrick, as administrative agent (“ Administrative Agent ”) under a Credit Agreement dated July 19, 2010 among Borrower (as defined below), Bank of America, N.A., and the other lending institutions which become parties to the Credit Agreement (Bank of America, N.A. and the other lending institutions which become parties to the Credit Agreement are collectively referred to as “ Lenders ” and individually as " Lender ”).
Grantor has requested that Administrative Agent and Lenders make the Loan (as hereinafter defined) to Grantor and Grubb & Ellis Healthcare REIT II Holdings LP, a Delaware limited partnership (together with each other party which becomes a borrower under the Credit Agreement, each of whom with Grantor are referred to herein individually and collectively as " Borrower ”). As a condition precedent to making the Loan, Administrative Agent has required that Grantor execute and deliver this Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing to Trustee for the benefit of Administrative Agent.
Grants and Agreements
Now, therefore, in order to induce Administrative Agent and Lenders to make the Loan to Borrower, Grantor agrees as follows:
As used in this Deed of Trust, the terms defined in the Preamble hereto shall have the respective meanings specified therein, and the following additional terms shall have the meanings specified:
" 365(h) Election ” shall mean the right of Grantor to treat the Ground Lease as terminated pursuant to Section 365(h)(1)(A)(i) of the Bankruptcy Code or retain Grantor’s rights under the Ground Lease pursuant to Section 365(h)(1)(A)(ii) of the Bankruptcy Code and all such other rights, powers, and privileges granted to a lessee pursuant to Section 365(h) of the Bankruptcy Code, together with all such other similar rights, powers and privileges granted to a lessee under any other Debtor Relief Law.
" Accessories ” means all fixtures, equipment, systems, machinery, furniture, furnishings, appliances, inventory, goods, building and construction materials, supplies and other articles of personal property, of every kind and character, tangible and intangible (including software embedded therein), now owned or hereafter acquired by Grantor, which are now or hereafter attached to or situated in, on or about the Land or 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 Improvements, and all Additions to the foregoing, all of which are hereby declared to be permanent accessions to the Land.
" Accounts ” means all accounts of Grantor within the meaning of the Uniform Commercial Code of the State, derived from or arising out of the use, occupancy or enjoyment of the Property or for services rendered therein or thereon.
" Additions ” means any and all alterations, additions, accessions and improvements to property, substitutions therefor, and renewals and replacements thereof.
" Bankruptcy Code ” shall mean Title 11 of the United States Code entitled “Bankruptcy”, as now and hereafter in effect, or any successor statute.
" Beneficiary ” means Administrative Agent, on behalf of itself and certain other Lenders, and its successors and assigns.
" Claim ” means any liability, suit, action, claim, demand, loss, expense, penalty, fine, judgment or other cost of any kind or nature whatsoever, including fees, costs and expenses of attorneys, consultants, contractors and experts.
" Condemnation ” means any taking of title to, use of, or any other interest in the Property under the exercise of the power of condemnation or eminent domain, whether temporarily or permanently, by any Governmental Authority or by any other Person acting under or for the benefit of a Governmental Authority.
" Condemnation Awards ” means any and all judgments, awards of damages (including severance and consequential damages), payments, proceeds, settlements, amounts paid for a taking in lieu of Condemnation, or other compensation heretofore or hereafter made, including interest thereon, and the right to receive the same, as a result of, or in connection with, any Condemnation or threatened Condemnation.
" Contract of Sale ” means any contract for the sale of all or any part of the Property or any interest therein, whether now in existence or hereafter executed.
" Credit Agreement ” means the Credit Agreement dated July 19, 2010 among Borrower, Administrative Agent and Lenders which sets forth, among other things, the terms and conditions upon which the proceeds of the Loan will be disbursed, as the same may from time to time be extended, amended, restated, supplemented or otherwise modified.
" Debtor Relief Laws ” means the Bankruptcy Code or any other federal, state or local law, domestic or foreign, as now or hereafter in effect relating to bankruptcy, insolvency, liquidation, receivership, reorganization, arrangement, composition, extension or adjustment of debts, or similar laws affecting the rights of creditors.
" Deed of Trust ” means this Future Advance Leasehold Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing Securing Future Advances, as the same may from time to time be extended, amended, restated, supplemented or otherwise modified.
" Default ” means an event or circumstance which, with the giving of Notice or lapse of time, or both, would constitute an Event of Default under the provisions of this Deed of Trust.
" Design and Construction Documents ” means, collectively, (a) all contracts for services to be rendered, work to be performed or materials to be supplied in the development of the Land or the construction or repair of Improvements, including all agreements with architects, engineers or contractors for such services, work or materials; (b) all plans, drawings and specifications for the development of the Land or the construction or repair of Improvements; (c) all permits, licenses, variances and other rights or approvals issued by or obtained from any Governmental Authority or other Person in connection with the development of the Land or the construction or repair of Improvements; and (d) all amendments of or supplements to any of the foregoing.
" Encumbrance ” means any Lien, easement, right of way, roadway (public or private), condition, covenant or restriction, Lease or other matter of any nature that would affect title to the Property.
" Environmental Agreement ” means the Environmental Indemnity Agreement dated July 19, 2010 by and among Borrower, Guarantor and Administrative Agent pertaining to the Property, as the same may from time to time be extended, amended, restated or otherwise modified.
" Event of Default ” means an event or circumstance specified in Article VI and the continuance of such event or circumstance beyond the applicable grace and/or cure periods therefor, if any, set forth in Article VI .
" Expenses ” means all fees, charges, costs and expenses of any nature whatsoever incurred at any time and from time to time (whether before or after an Event of Default) by Beneficiary or Trustee in making, funding, administering or modifying the Loan, in negotiating or entering into any “workout” of the Loan, or in exercising or enforcing any rights, powers and remedies provided in this Deed of Trust or any of the other Loan Documents, including reasonable attorneys’ fees, court costs, receiver’s fees, management fees and costs incurred in the repair, maintenance and operation of, or taking possession of, or selling, the Property.
" Governmental Authority ” means any governmental or quasi-governmental entity, including any court, department, commission, board, bureau, agency, administration, service, district or other instrumentality of any governmental entity.
" Grantor ” means G&E HC REIT II St. Anthony North Denver MOB, LLC, a Delaware limited liability company.
" Ground Lease ” means that certain Medical Office Building Ground Lease dated as of November 29, 2007 between Ground Lessor and SAN MOB I LLC (“ Original Tenant ”), a memorandum of which was recorded with the Clerk and Recorder of Adams County, Colorado on December 6, 2007 at Reception Number 2007000111932.
" Ground Lessor ” means Catholic Health Initiatives Colorado, a nonprofit Colorado corporation, d/b/a St. Anthony North Hospital, its succors and/or assigns.
" Guarantor ” means Grubb & Ellis Healthcare REIT II, Inc., a Maryland corporation, and its personal representatives, successors and assigns.
" Guaranty ” means the Guaranty Agreement dated July 19, 2010 executed by Guarantor to Administrative Agent for the benefit of Lenders, as the same may from time to time be extended, amended, restated, supplemented or otherwise modified.
" Improvements ” means all buildings, structures and other improvements now or hereafter existing, erected or placed on the Land, together with any on-site improvements and off-site improvements in any way used or to be used in connection with the use, enjoyment, occupancy or operation of the Land.
" Insolvency Proceeding ” means (a) any voluntary or involuntary case or proceeding under the Bankruptcy Code with respect to Grantor or Ground Lessor, as applicable, (b) any other voluntary or involuntary insolvency, reorganization or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding with respect to Grantor or Ground Lessor, as applicable, (c) any liquidation, dissolution, reorganization or winding up of Grantor or Ground Lessor, as applicable, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy or (d) any assignment for the benefit of creditors or any other marshalling of assets and liabilities of Grantor or Ground Lessor, as applicable.
" Insurance Proceeds ” means the insurance claims under and the proceeds of any and all policies of insurance covering the Property or any part thereof, including all returned and unearned premiums with respect to any insurance relating to such Property, and also including, without limitation, any proceeds or other benefits from any governmental or quasi-governmental insurance program, in each case whether now or hereafter existing or arising.
" Land ” means the real property described in Exhibit A attached hereto and made a part hereof.
" Laws ” means all federal, state and local laws, statutes, rules, ordinances, regulations, codes, licenses, authorizations, decisions, injunctions, interpretations, orders or decrees of any court or other Governmental Authority having jurisdiction as may be in effect from time to time.
" Lease Damage Claims ” means all of Grantor’s claims and rights to payment of damages and other rights and remedies that may arise from (a) Ground Lessor’s failure to perform under the Ground Lease, (b) rejection or disaffirmance of the Ground Lease under any Debtor Relief Law or in connection with any Insolvency Proceeding involving Ground Lessor, (c) violation or breach by Ground Lessor under the Ground Lease, or (d) Ground Lessor’s sale of Property pursuant to Section 363 of the Bankruptcy Code or similar provisions of any other Debtor Relief Law and all damages and other sums payable with respect to or pursuant to any of the foregoing.
" Leases ” means all leases, license agreements and other occupancy or use agreements (whether oral or written), now or hereafter existing, excluding the Ground Lease, which cover or relate to the Property or any part thereof, together with all options therefor, amendments thereto and renewals, modifications and guaranties thereof, including any cash or security deposited under the Leases to secure performance by the tenants of their obligations under the Leases, whether such cash or security is to be held until the expiration of the terms of the Leases or applied to one or more of the installments of rent coming due thereunder. All Leases shall be in compliance with terms and provisions of the Credit Agreement.
" Lessee Bankruptcy Rights ” means all of Grantor’s rights, remedies, powers, and privileges arising at any time under, in, or in connection with or related to any Insolvency Proceeding affecting Ground Lessor, including Grantor’s right (a) to object to Ground Lessor’s sale of the Property under any Debtor Relief Law, including Bankruptcy Code Section 363, and (b) to make the 365(h) Election, and any other comparable right under any other Debtor Relief Laws and all claims, suits, actions, proceedings, rights, remedies and privileges related thereto or arising therefrom, including Grantor’s right to claim any offset against rent and other charges and the right to file and prosecute any proofs of claim, complaints, motions, applications, objections, notices and any other document in any case relating to Ground Lessor under any Debtor Relief Laws, any and all adequate protection or other value received by or to which Grantor is entitled to in connection with any sale of the “Property” in connection with any Insolvency Proceeding involving Ground Lessor.
" Letter of Credit ” means any letter of credit for the account of Grantor or its nominee in connection with the development of the Land or the construction of the Improvements, together with any and all extensions, renewals or modifications thereof, substitutions therefor or replacements thereof.
" Lien ” means any mortgage, deed of trust, pledge, security interest, assignment, judgment, lien or charge of any kind, including any conditional sale or other title retention agreement, any lease in the nature thereof, and the filing of, or agreement to give, any financing statement under the Uniform Commercial Code of any jurisdiction.
" Loan ” means the loan from Lenders to Borrower, the repayment obligations in connection with which are evidenced by the Note and the Credit Agreement.
" Loan Documents ” means this Deed of Trust, the each Note, the Guaranty, the Environmental Agreement, the Credit Agreement, any Swap Contract, any application or reimbursement agreement executed in connection with any Letter of Credit, and any and all other documents which Grantor, Borrower, Guarantor or any other party or parties have executed and delivered, or may hereafter execute and deliver, to evidence, secure or guarantee the Obligations, or any part thereof, as the same may from time to time be extended, amended, restated, supplemented or otherwise modified.
" Note ” means, singly or collectively, those certain Amended and Restated Promissory Notes, each dated May 4, 2011, made by Borrower and payable, respectively, to the order of each Lender in the principal face amount of that Lender’s Commitment, such Amended and Restated Promissory Notes being in the aggregate original principal amount of Forty Five Million and No/100 Dollars ($45,000,000.00), bearing interest as provided in the Credit Agreement, as the same may from time to time be extended, amended, restated, supplemented or otherwise modified.
" Notice ” means a notice, request, consent, demand or other communication given in accordance with the provisions of this Deed of Trust.
" Obligations ” means all present and future debts, liabilities, obligations, covenants and duties of Borrower to Beneficiary and Lenders and/or Trustee arising pursuant to, and/or on account of, the provisions of this Deed of Trust, the Note, the Credit Agreement or any of the other Loan Documents, including the obligations: (a) to pay all principal, interest, late charges, prepayment premiums (if any) and other amounts due at any time under the Note; (b) to pay all Expenses, indemnification payments, fees and other amounts due at any time under this Deed of Trust or any of the other Loan Documents, together with interest thereon as herein or therein provided; (c) to pay and perform all obligations of Borrower under any Swap Contract; (d) to perform, observe and comply with all of the other terms, covenants and conditions, expressed or implied, which Grantor and/or Borrower are required to perform, observe or comply with pursuant to this Deed of Trust or any of the other Loan Documents; and (e) to pay and perform all future advances and other obligations that Grantor or any successor in ownership of all or part of the Property may agree to pay and/or perform (whether as principal, surety or guarantor) for the benefit of Beneficiary, when a writing evidences the parties’ agreement that the advance or obligation be secured by this Deed of Trust.
" Permitted Encumbrances ” means (a) any matters set forth in any policy of title insurance issued to Beneficiary and insuring Lenders’ interest in the Property which are acceptable to Beneficiary as of the date hereof, (b) the Liens and interests of this Deed of Trust, and (c) any other Encumbrance that Beneficiary shall expressly approve in its sole and absolute discretion, as evidenced by a “marked-up” commitment for title insurance initialed on behalf of Beneficiary or by a subsequent endorsement to any title insurance policy issued to Beneficiary and insuring Administrative Agent’s and Lenders’ interest in the Property.
" Person ” means an individual, a corporation, a partnership, a joint venture, a limited liability company, a trust, an unincorporated association, any Governmental Authority or any other entity.
" Personalty ” means all personal property of any kind or nature whatsoever, whether tangible or intangible and whether now owned or hereafter acquired, in which Grantor (or any Borrower) now has or hereafter acquires an interest and which is used in the construction of, or is placed upon, or is derived from or used in connection with the maintenance, use, occupancy or enjoyment of, the Property, including (a) the Accessories; (b) the Accounts; (c) all franchise, license, management or other agreements with respect to the operation of the Real Property or the business conducted therein ( provided all of such agreements shall be subordinate to this Deed of Trust, and Beneficiary shall have no responsibility for the performance of Grantor’s obligations thereunder) and all general intangibles (including payment intangibles, trademarks, trade names, goodwill, software and symbols) related to the Real Property or the operation thereof; (d) all “Special Declarant Rights”, including without limitation, all “Development Rights”, both of which terms are defined in the Colorado Common Interest Ownership Act, Sections 38-33.3-101 through 319 of the Colorado Revised Statutes, as amended from time to time (“CIOA”) and any other comparable rights of Grantor as declarant or successor to declarant arising now or in the future under (i) CIOA or (ii) other applicable law; (e) all sewer and water taps, appurtenant water stock or water rights, allocations and agreements for utilities, bonds, letters of credit, permits, certificates, licenses, guaranties, warranties, causes of action, judgments, Claims, profits, security deposits, utility deposits, and all rebates or refunds of fees, Taxes, assessments, charges or deposits paid to any Governmental Authority related to the Real Property or the operation thereof; (f) all of Grantor’s and Borrower’s rights and interests under all Swap Contracts, including all rights to the payment of money from Beneficiary under any Swap Contract and all accounts, deposit accounts and general intangibles, including payment intangibles, described in any Swap Contract; (g) all insurance policies held by Grantor with respect to the Property or Grantor’s operation thereof; (h) all money, instruments and documents (whether tangible or electronic) arising from or by virtue of any transactions related to the Property, and all deposits and deposit accounts of Grantor (or any Borrower) with Beneficiary related to the Property, including any such deposit account from which Grantor may from time to time authorize Beneficiary to debit and/or credit payments due with respect to the Loan; and (i) all sums at any time on deposit for the benefit of Grantor (or any Borrower) or held by Beneficiary (whether deposited by or on behalf of Grantor or anyone else) pursuant to any of the provisions of this Deed of Trust or the other Loan Documents together with all Additions to and Proceeds of all of the foregoing.
" Proceeds ,” when used with respect to any of the Property, means all proceeds of such Property, including all Insurance Proceeds and all other proceeds within the meaning of that term as defined in the Colorado Commercial Code, or such other state Uniform Commercial Code as is applicable.
" Property ” means the Real Property and the Personalty and all other rights, interests and benefits of every kind and character which Grantor now has or hereafter acquires in, to or for the benefit of the Real Property and/or the Personalty and all other property and rights used or useful in connection therewith, including all Leases, all Rents, all Condemnation Awards, all Proceeds, and all of Grantor’s right, title and interest in and to all Design and Construction Contracts, all Contracts of Sale and all Refinancing Commitments.
" Property Assessments ” means all Taxes, payments in lieu of taxes, water rents, sewer rents, assessments, condominium and owner’s association assessments and charges, maintenance charges and other governmental or municipal or public or private dues, charges and levies and any Liens (including federal tax liens) which are or may be levied, imposed or assessed upon the Property or any part thereof, or upon any Leases or any Rents, whether levied directly or indirectly or as excise taxes, as income taxes, or otherwise.
" Real Property ” means the Land and Improvements, together with (a) all estates, title interests, title reversion rights, remainders, increases, issues, profits, rights of way or uses, additions, accretions, servitudes, strips, gaps, gores, liberties, privileges, water rights, water courses, alleys, passages, ways, vaults, licenses, tenements, franchises, hereditaments, appurtenances, easements, rights-of-way, rights of ingress or egress, parking rights, timber, crops, mineral interests and other rights, now or hereafter owned by Grantor and belonging or appertaining to the Land or Improvements; (b) all right, title and interest of Grantor in all development rights appurtenant to the Land or Improvements, including, but not limited to, any oil, gas and other mineral rights; (c) all Claims whatsoever of Grantor with respect to the Land or Improvements, either in law or in equity, in possession or in expectancy; (d) all estate, right, title and interest of Grantor in and to all streets, roads and public places, opened or proposed, now or hereafter adjoining or appertaining to the Land or Improvements; (e) all options to purchase the Land or Improvements, or any portion thereof or interest therein, and any greater estate in the Land or Improvements, and all Additions to and Proceeds of the foregoing; and (f) the leasehold estate under the Ground Lease, including, without limitation, (i) all Lessor Bankruptcy Rights, and (ii) all Lease Damage Claims, this Deed of Trust constituting a present, irrevocable and unconditional assignment of Lease Damage Claims which shall continue in effect until the Obligations have been satisfied.
" Refinancing Commitment ” means any commitment from or other agreement with any Person providing for the financing of the Property, some or all of the proceeds of which are intended to be used for the repayment of all or a portion of the Loan.
" Rents ” means all of the rents, royalties, issues, profits, revenues, earnings, income and other benefits of the Property, or arising from the use or enjoyment of the Property, including all such amounts paid under or arising from any of the Leases and all fees, charges, accounts or other payments for the use or occupancy of rooms or other public facilities within the Real Property.
" State ” means the state in which the Land is located.
" Swap Contract ” means any agreement, whether or not in writing, relating to any Swap Transaction, including, unless the context otherwise clearly requires, any form of master agreement (the “ Master Agreement ”) published by the International Swaps and Derivatives Association, Inc., or any other master agreement, entered into prior to the date hereof or any time after the date hereof, between Swap Counterparty and Borrower (or any Affiliate [as defined in the Credit Agreement]), together with any related schedule and confirmation, as amended, supplemented, superseded or replaced from time to time.
" Swap Counterparty ” means Lender or an Affiliate of Lender, in its capacity as counterparty under any Swap Contract.
" Swap Transaction ” means any transaction that is a rate swap, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap or option, bond option, note or bill option, interest rate option, forward foreign exchange transaction, cap transaction, collar transaction, floor transaction, currency swap transaction, cross-currency rate swap transaction, swap option, currency option, credit swap or default transaction, T-lock, or any other similar transaction (including any option to enter into the foregoing) or any combination of the foregoing, entered into prior to the date hereof or anytime after the date hereof between Swap Counterparty and Grantor (or its Affiliate) so long as a writing, such as a Swap Contract, evidences the parties’ intent that such obligations shall be secured by this Deed of Trust (and any other Mortgage [as such term is defined in the Credit Agreement]) in connection with the Loan.
" Taxes ” means all taxes and assessments, whether general or special, ordinary or extraordinary, or foreseen or unforeseen, which at any time may be assessed, levied, confirmed or imposed by any Governmental Authority or any community facilities or other private district on Grantor or on any of its properties or assets or any part thereof or in respect of any of its franchises, businesses, income or profits.
" Transfer ” means any direct or indirect sale, assignment, conveyance or transfer, including any Contract of Sale and any other contract or agreement to sell, assign, convey or transfer, whether made voluntarily or by operation of Law or otherwise, and whether made with or without consideration.
" Trustee ” means Public Trustee of Adams County, Colorado, or its successor in trust who may be acting under and pursuant to this Deed of Trust from time to time.
" UCC ” or “ Uniform Commercial Code ” means the Colorado Uniform Commerce Code, as amended from time to time.