EXHIBIT 10.20
TENANT IMPROVEMENT AND
LEASING COMMISSION RESERVE AGREEMENT
This TENANT IMPROVEMENT AND LEASING COMMISSION RESERVE AGREEMENT
("Agreement") is made as of January 10, 2002, by and between ILLUMINA, INC., a
Delaware corporation, having its principal place of business at 9885 Towne
Centre Drive, San Diego, California 92121 ("Borrower"), and BNY WESTERN TRUST
COMPANY AS TRUSTEE FOR WASHINGTON CAPITAL JOINT MASTER TRUST MORTGAGE INCOME
FUND, having an address at c/o Washington Capital Management, Inc., 4350 La
Jolla Village Drive, Suite 960, San Diego, California 92122 ("Lender"), with
reference to the following facts:
A. Borrower, by its assumption of a promissory note dated September 26,
2000, executed by Eastgate Diversified Venture, an Illinois general partnership,
given to Lender (the note, together with all extensions, renewals,
modifications, consolidations, substitutions, replacements, restatements and
increases thereof shall collectively be referred to as the "Note") is indebted
to Lender in the principal sum of Twenty Six Million Dollars ($26,000,000.00),
in lawful money of the United States of America, with interest at the rates set
forth in the Note (the indebtedness evidenced by the Note, together with such
interest accrued thereon, shall collectively be referred to as the "Loan"),
principal and interest to be payable in accordance with the terms and conditions
provided in the Note.
B. The Loan is secured by, among other things, a Deed of Trust, Security
Agreement, Assignment of Rents and Fixture Filing (the "Deed of Trust"), dated
as of September 27, 2000, which grants Lender a first lien on the property
encumbered thereby (the "Property"). All and any of the documents other than the
Note, the Deed of Trust and this Agreement now or hereafter executed by Borrower
and/or others and by or in favor of Lender, which wholly or partially secure or
guarantee payment of the Note are referred to as the "Other Security Documents."
C. Lender requires as a condition to the assumption of the Loan by
Borrower that Borrower enter into this Agreement and make certain deposits with
Lender as provided in this Agreement as additional security for all of
Borrower's obligations under the Note, the Deed of Trust and the Other Security
Documents.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Deposits to the Tenant Improvement and Leasing Commission
Reserve.
1.1 Monthly Deposit. On each date that a regularly scheduled
payment of principal or interest is due under the Note, Borrower shall deposit
with Lender (or, at Lender's election, in a pledged bank or escrow account in
the name of Borrower and pledged to and selected by Lender) the sum of Twenty
Thousand Dollars ($20,000.00) (the "Monthly Deposit").
1.2 Reassessment of Monthly Deposit. No more often than once each "Loan
Year" (as defined below), Lender may reassess its estimate of the amount
necessary for the
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Tenant Improvement and Leasing Commission Reserve Fund (defined below) and may
increase the amount of the Monthly Deposit by thirty (30) calendar days written
notice to Borrower, if Lender determines in its reasonable discretion that an
increase is commercially reasonable and necessary to maintain a proper reserve
to fund the costs of likely Tenant Improvements and/or Leasing Commissions (each
as defined below) for the retenanting of the Property during the remaining term
of the Loan. For purposes of this Section 1.2, a "Loan Year" means each 365 day
period (or 366 day period in leap years) commencing with the date of this
Agreement and ending on each anniversary thereof.
1.3 Shell Space Reserve. If any unimproved shell space exists, as
of the Conversion Date, in (a) that certain two-story building consisting of
approximately 46,250 rentable square feet ("Building A") on the Property, or (b)
that certain two-story building consisting of approximately 51,250 rentable
square feet ("Building B") on the Property, Borrower shall deposit with Lender
One Hundred Dollars ($100.00) for each square foot of such unimproved shell
space (the "Shell Space Reserve"). Monthly Deposits and the Shell Space Reserve
shall collectively be referred to herein as the "Tenant Improvement and Leasing
Commission Reserve Fund."
1.4 Tenant Improvement and Leasing Commission Reserve. Lender
shall invest or cause to be invested the Tenant Improvement and Leasing
Commission Reserve Fund, as received, in highly liquid, short-term U.S.
government securities (the "Tenant Improvement and Leasing Commission Reserve")
selected by Lender with any interest and gains in investment value accruing
thereon to Borrower's benefit. Borrower hereby acknowledges and confirms that
(a) the Tenant Improvement and Leasing Commission Reserve Fund shall not
constitute a trust fund (and, if deposited in Lender's name, such funds may be
commingled with other monies held by Lender, but, if held in the name of
Borrower, such funds shall not be commingled with any other monies held by
Borrower), and (b) Lender or its designee shall have the sole right to make or
approve withdrawals from the Tenant Improvement and Leasing Commission Reserve.
2. Pledge of Tenant Improvement and Leasing Commission Reserve.
As additional security for the payment of all sums due under the Loan
and the performance by Borrower of the Obligations (as defined in the Deed of
Trust), Borrower hereby pledges, assigns and grants to Lender a continuing
perfected security interest in and to and a first lien upon, the Tenant
Improvement and Leasing Commission Reserve Fund and the Tenant Improvement and
Leasing Commission Reserve; provided that, Lender shall make disbursements from
the Tenant Improvement and Leasing Commission Reserve in accordance with the
terms of this Agreement.
3. Disbursements From Tenant Improvement and Leasing Commission
Reserve
3.1 Disbursements for Tenant Improvements and Leasing Commissions
Only. Lender shall make disbursements from the Tenant Improvement and Leasing
Commission Reserve to pay or reimburse Borrower only for the cost of (a) tenant
improvements required under any new lease or modification, renewal or extension
of any existing lease which is entered into after the date hereof for the
Property, provided that any such new lease or modification, renewal or extension
of any existing lease which is entered into after the date hereof is done so in
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accordance with the terms and provisions of the Deed of Trust and the Other
Security Documents (collectively, the "Tenant Improvements"), and (b) leasing
commissions incurred by Borrower in connection with the leasing of the Property
or a portion thereof, provided that (x) such leasing commissions are reasonable
and customary for properties similar to the Property and (y) the amount of such
leasing commission is determined pursuant to arms length transactions between
Borrower and any leasing agent to which a leasing commission is due, and
excluding any leasing commissions which shall be due any member, general partner
or shareholder of Borrower or any affiliate of Borrower (collectively, "Leasing
Commissions"), in each case in the manner provided in this Section 3. Lender
shall, upon written request from Borrower and satisfaction of the requirements
set forth in this Section 3 and Section 4 of this Agreement, disburse to
Borrower amounts from the Tenant Improvement and Leasing Commission Reserve
necessary to pay for the actual approved costs of (I) Tenant Improvements or to
reimburse Borrower therefor, upon completion of such Tenant Improvements (or,
upon partial completion in the case of Tenant Improvements made pursuant to
Section 3.5) as determined by Lender, and (II) Leasing Commissions upon
satisfactory evidence that the obligations of the leasing agent have been fully
performed. In no event shall Lender be obligated to disburse funds from the
Tenant Improvement and Leasing Commission Reserve if an Event of Default
(hereinafter defined) exists.
3.2 Request for Disbursement for Tenant Improvement. Each request
for disbursement from the Tenant Improvement and Leasing Commission Reserve in
connection with a Tenant Improvement shall be in a form specified or approved by
Lender and shall specify (a) the specific Tenant Improvements for which the
disbursement is requested, (b) the quantity and price of each item purchased, if
the Tenant Improvement includes the purchase or replacement of specific items,
(c) the price of all materials (grouped by type or category) used in any Tenant
Improvement other than the purchase or replacement of specific items, and (d)
the cost of all contracted labor or other services applicable to each Tenant
Improvement for which such request for disbursement is made. With each such
request, Borrower shall certify that all Tenant Improvements have been made in
accordance with applicable laws and shall also deliver a certificate from the
tenants for which the Tenant Improvements have been performed stating that such
Tenant Improvements have been completed in a manner satisfactory and acceptable
to such tenant, that such tenant has accepted the premises and containing such
other information as Lender may require, in form and substance reasonably
satisfactory to Lender. Each request for disbursement shall include copies of
invoices for all items or materials purchased and all contracted labor or
services provided and each request shall include evidence satisfactory to Lender
of payment of all such amounts. Except as provided in Section 3.5, each request
for disbursement from the Tenant Improvement and Leasing Commission Reserve
shall be made only after completion of the Tenant Improvement for which
disbursement is requested. Borrower shall provide Lender evidence of completion
satisfactory to Lender in its reasonable judgment.
3.3 Request for Disbursement for Leasing Commissions. Each
request for disbursement from the Tenant Improvement and Leasing Commission
Reserve in connection with a Leasing Commission shall be in a form specified or
approved by Lender and shall specify (a) the Leasing Commissions for which such
disbursement is requested, and (b) the amount of each Leasing Commission. With
each such request, Borrower shall certify that the obligations of the leasing
agent have been fully performed, and Borrower shall also deliver a certification
from
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the leasing agent that no further sums are due to it in connection with the
applicable Leasing Commission. Each request for disbursement shall include
copies of invoices and bills for such Leasing Commissions marked paid; or Lender
may in its sole discretion, accept copies of cancelled checks in satisfaction of
this requirement.
3.4 Disbursement Conditions. Borrower shall pay all invoices in
connection with the Tenant Improvements with respect to which a disbursement is
requested prior to submitting such request for disbursement from the Tenant
Improvement and Leasing Commission Reserve unless all such invoices do not
exceed $10,000.00, in which case Lender shall disburse the amount for such
invoices directly to Borrower and Borrower covenants and agrees to promptly pay
such invoices. In addition, as a condition to any disbursement, Lender may
require Borrower to obtain lien waivers from each contractor, supplier,
materialman, mechanic or subcontractor who receives payment in an amount equal
to or greater than $10,000.00 for completion of its work or delivery of its
materials. Any lien waiver delivered hereunder shall conform to the requirements
of applicable law and shall cover all work performed and materials supplied
(including equipment and fixtures) for the Property by that contractor,
supplier, subcontractor, mechanic or materialman through the date covered by the
current reimbursement request. Lender may in its sole discretion, accept copies
of cancelled checks in lieu of, or in addition to any of the foregoing invoice
and/or lien waiver requirements.
3.5 Partial Completion. If (a) the time required to complete a
Tenant Improvement exceeds one month, (b) the contractor performing such Tenant
Improvement requires periodic payments pursuant to the terms of a written
contract, (c) Lender has approved in writing in advance such periodic payments,
and (d) the cost of the portion of the work completed under such contract
exceeds Ten Thousand Dollars ($10,000.00), a request for reimbursement from the
Tenant Improvement and Leasing Commission Reserve may be made after completion
of a portion of the work under such contract, provided (i) such contract
requires payment upon completion of such portion of the work, (ii) the materials
for which the request is made are on site at the Property and are properly
secured or have been installed in the Property, (iii) all other conditions in
this Agreement for disbursement have been satisfied, (iv) funds remaining in the
Tenant Improvement and Leasing Commission Reserve are, in Lender's judgment,
sufficient to complete such Tenant Improvement and fund other Tenant
Improvements and Leasing Commissions when required, and (v) each contractor or
subcontractor receiving payments under such contract shall provide a waiver of
lien with respect to amounts which have been paid to that contractor or
subcontractor.
3.6 Number of Requests. Except as provided in Section 3.5,
Borrower shall not make a request for disbursement from the Tenant Improvement
and Leasing Commission Reserve more frequently than once in any calendar month.
4. Performance of Tenant Improvements.
4.1 Workmanlike Completion. Borrower shall make Tenant
Improvements when required under the terms of the applicable Lease. Borrower
shall complete all Tenant Improvements in a good and workmanlike manner as soon
as practicable following the commencement of making each such Tenant
Improvement.
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4.2 Contracts. Lender reserves the right, at its option, to
approve all contracts or work orders with materialmen, mechanics, suppliers,
subcontractors, contractors or other parties providing labor or materials in
connection with the Tenant Improvements. Upon Lender's request, Borrower shall
assign any contract or subcontract to Lender.
4.3 Lender's Right to Complete Tenant Improvements. In the event
Lender determines in its reasonable discretion that any Tenant Improvement is
not being performed in a workmanlike or timely manner or that any Tenant
Improvement has not been completed in a workmanlike or timely manner, Lender
shall have the option to withhold disbursement for such unsatisfactory Tenant
Improvement and to proceed under existing contracts or to contract with third
parties to complete such Tenant Improvement and to apply the Tenant Improvement
and Leasing Commission Reserve Fund toward the labor and materials necessary to
complete such Tenant Improvement, without providing any prior notice to
Borrower, and to exercise any and all other remedies available to Lender upon an
Event of Default.
4.4 Entry onto Property. In order to facilitate Lender's
completion or making of the Tenant Improvements pursuant to Section 4.3 above,
Borrower grants Lender the right to enter onto the Property and perform any and
all work and labor necessary to complete or make the Tenant Improvements and/or
employ watchmen to protect the Property from damage. All sums so expended by
Lender shall be deemed to have been advanced under the Loan to Borrower and
secured by the Deed of Trust. For this purpose, Borrower constitutes and
appoints Lender its true and lawful attorney-in-fact with full power of
substitution to complete or undertake the Tenant Improvements in the name of
Borrower. Such power of attorney shall be deemed to be a power coupled with an
interest and cannot be revoked. Borrower empowers said attorney-in-fact as
follows: (a) to use any funds in the Tenant Improvement and Leasing Commission
Reserve for the purpose of making or completing the Tenant Improvements; (b) to
make such additions, changes and corrections to the Tenant Improvements as shall
be necessary or desirable to complete the Tenant Improvements; (c) to employ
such contractors, subcontractors, agents, architects and inspectors as shall be
required for such purposes; (d) to pay, settle or compromise all existing bills
and claims which are or may become liens against the Property, or as may be
necessary or desirable for the completion of the Tenant Improvements, or for
clearance of title; (e) to execute all applications and certificates in the name
of Borrower which may be required by any of the contract documents; (f) in its
reasonable discretion, to prosecute and defend all actions or proceedings in
connection with the Property or the rehabilitation and repair of the Property;
and (g) to do any and every act which Borrower might do in its own behalf to
fulfill the terms of this Agreement.
4.5 No Obligation of Lender. Nothing in this Section 4 shall: (a)
make Lender responsible for making or completing the Tenant Improvements; (b)
require Lender to expend funds in addition to the Tenant Improvement and Leasing
Commission Reserve Fund to make or complete any Tenant Improvement; (c) obligate
Lender to proceed with the Tenant Improvements; or (d) obligate Lender to demand
from Borrower additional sums to make or complete any Tenant Improvement.
4.6 Inspections.
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(a) Borrower shall permit Lender and Lender's agents and
representatives (including, without limitation, Lender's engineer, architect or
inspector) or third parties making Tenant Improvements pursuant to this Section
4 to enter onto the Property during normal business hours (subject to the rights
of tenants under their Leases) to inspect the progress of any Tenant
Improvements and all materials being used in connection therewith, to examine
all plans and shop drawings relating to such Tenant Improvements which are or
may be kept at the Property, and to complete any Tenant Improvements made
pursuant to this Section 4. Borrower shall cause all contractors and
subcontractors to cooperate with Lender or Lender's representatives or such
other persons described above in connection with inspections described in this
Section 4.6 or the completion of Tenant Improvements pursuant to this Section 4.
(b) Lender may require an inspection of the Property at
Borrower's expense prior to making a monthly disbursement from the Tenant
Improvement and Leasing Commission Reserve in order to verify completion of the
Tenant Improvements for which reimbursement is sought. Lender may require that
such inspection be conducted by an appropriate, independent, qualified
professional selected by Lender and/or may require a copy of a certificate of
completion by an independent, qualified professional acceptable to Lender prior
to the disbursement of any amounts from the Tenant Improvement and Leasing
Commission Reserve. Borrower shall pay the expense of the inspection as required
hereunder, whether such inspection is conducted by Lender or by an independent,
qualified professional.
4.7 Lien-Free Completion.
(a) The Tenant Improvements and all materials, equipment,
fixtures, or any other item comprising a part of any Tenant Improvement shall be
constructed, installed or completed, as applicable, free and clear of all
mechanic's, materialman's or other liens (except for those liens existing on the
date of this Agreement which have been approved in writing by Lender, if any).
(b) Lender may require Borrower to provide Lender with a
search of title to the Property effective to the date of the disbursement, which
search shows that no mechanic's or materialmen's liens or other liens of any
nature have been placed against the Property since the date of recordation of
the Deed of Trust and that title to the Property is free and clear of all liens
(other than the lien of the Deed of Trust and any other liens previously
approved in writing by Lender, if any).
4.8 Compliance with Laws. All Tenant Improvements shall comply
with all applicable laws and applicable insurance requirements, including,
without limitation, applicable building codes, special use permits,
environmental regulations and requirements of insurance underwriters.
4.9 Insurance Requirements. In addition to any insurance required
under the Deed of Trust and the Other Security Documents, Borrower shall provide
or cause to be provided workmen's compensation insurance, builder's risk, and
public liability insurance and other insurance to the extent required under
applicable law in connection with a particular Tenant Improvement. All such
policies shall be in form and amount reasonably satisfactory to Lender. All such
policies which can be endorsed with standard mortgagee clauses making loss
payable to
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Lender or its assigns shall be so endorsed. Certified copies of such policies
shall be delivered to Lender.
5. Failure to Make Tenant Improvements.
5.1 Event of Default. It shall be an "Event of Default" under
this Agreement if Borrower (a) fails to make any Monthly Deposit payment
required hereunder within ten (10) calendar days of the date when due, or (b)
fails to comply with any provision of this Agreement and such failure is not
cured within thirty (30) calendar days after notice from Lender; provided that
if such default cannot reasonably be cured within such thirty (30) day period
and Borrower shall have commenced to cure such default within such thirty (30)
day period and thereafter diligently and expeditiously proceeds to cure the
same, such thirty (30) day period shall be extended for so long as it shall
require Borrower in the exercise of due diligence to cure such default, it being
agreed that no such extension shall be for a period in excess of one hundred
twenty (120) days, unless, only in the case of cures that require construction
or remedial work, such cure cannot with diligence be completed within such one
hundred twenty (120) day period, in which case such period shall be extended for
an additional one hundred twenty (120) days. The occurrence of an Event of
Default, as defined in the Note, the Deed of Trust or any of the Other Security
Documents, shall also be an "Event of Default" under this Agreement. Upon the
occurrence and during the continuance of an Event of Default, Borrower shall not
be entitled to receive any funds from the Tenant Improvement and Leasing
Commission Reserve and Lender may use the Tenant Improvement and Leasing
Commission Reserve Fund (or any portion thereof) for any purpose, including, but
not limited to, completion of the Tenant Improvements as provided in Section 4,
payment of any Leasing Commissions then due and payable, or for any other repair
or replacement to the Property or toward payment of the Debt in such order,
proportion and priority as Lender may determine in its sole discretion. Lender's
right to withdraw and apply the Tenant Improvement and Leasing Commission
Reserve Fund shall be in addition to all other rights and remedies provided to
Lender under this Agreement, the Note, the Deed of Trust, the Other Security
Documents, and at law or in equity.
5.2 Insufficient Funds in the Tenant Improvement and Leasing
Commission Reserve. The insufficiency of any balance in the Tenant Improvement
and Leasing Commission Reserve shall not relieve Borrower from its obligation to
fulfill (a) all covenants in the Deed of Trust and the Other Security Documents,
(b) any covenants or agreements with any tenants under any Leases, or (c) any
agreements with any leasing agents.
6. Waivers.
6.1 Waiver of Counterclaim. Borrower hereby waives the right to
assert a counterclaim, other than a mandatory or compulsory counterclaim, in any
action or proceeding brought against it by Lender arising out of or in any way
connected with this Agreement, the Note, the Deed of Trust, any of the Other
Security Documents, or the Obligations.
6.2 Waiver of Notice. To the extent permitted by applicable law,
Borrower shall not be entitled to any notices of any nature whatsoever from
Lender except with respect to matters for which this Agreement specifically and
expressly provides for the giving of notice by Lender to Borrower and except
with respect to matters for which Lender is required by
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applicable law to give notice, and Borrower hereby expressly waives the right to
receive any notice from Lender with respect to any matter for which this
Agreement does not specifically and expressly provide for the giving of notice
by Lender to Borrower.
6.3 Waiver of Statute of Limitations. Borrower hereby expressly
waives and releases to the fullest extent permitted by law, the pleading of any
statute of limitations as a defense to any and all of its obligations hereunder.
6.4 Waiver of Trial By Jury. BORROWER HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING
DIRECTLY OR INDIRECTLY TO THE LOAN EVIDENCED BY THE NOTE, THE APPLICATION FOR
THE LOAN EVIDENCED BY THE NOTE, THE NOTE, THIS AGREEMENT, THE DEED OF TRUST OR
THE OTHER SECURITY DOCUMENTS OR ANY ACTS OR OMISSIONS OF LENDER, ITS OFFICERS,
EMPLOYEES, DIRECTORS OR AGENTS IN CONNECTION THEREWITH.
7. Miscellaneous Provisions.
7.1 Notices. All notices or other written communications
hereunder shall be given and become effective as provided in the Deed of Trust.
7.2 Choice of Law. This Agreement shall be governed, construed,
applied and enforced in accordance with the laws of the State of California and
the applicable laws of the United States of America.
7.3 Provisions Subject to Applicable Law. All rights, powers and
remedies provided in this Agreement may be exercised only to the extent that the
exercise thereof does not violate any applicable provisions of law and are
intended to be limited to the extent necessary so that they will not render this
Agreement invalid or unenforceable under the provisions of any applicable law.
7.4 Inapplicable Provision. If any term of this Agreement or any
application thereof shall be invalid or unenforceable, the remainder of this
Agreement and any other application of the term shall not be affected thereby.
7.5 Costs. Borrower agrees to indemnify Lender and to hold Lender
harmless from and against any and all actions, suits, claims, demands,
liabilities, losses, damages, obligations and costs and expenses (including
litigation costs) arising from or in any way connected with the performance of
the Tenant Improvements or in connection with any Leasing Commissions or the
holding or disbursing of the Tenant Improvement and Leasing Commission Reserve
or the Tenant Improvement and Leasing Commission Reserve Fund. Wherever it is
provided for herein that Borrower pay any costs and expenses, such costs and
expenses shall include, but not be limited to, all legal fees and disbursements
of Lender (whether of retained firms, the reimbursement for the expenses of
in-house staff or otherwise). Borrower hereby assigns to Lender all rights and
claims Borrower may have against all persons or entities acting as a leasing
agent in connection with Leasing Commissions.
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7.6 Headings, Etc. The headings and captions of various Sections
of this Agreement are for convenience of reference only and are not to be
construed as defining or limiting in any way, the scope or intent of the
provisions hereof.
7.7 No Oral Change. This Agreement, and any provisions hereof,
may not be modified, amended, waived, extended, changed, discharged or
terminated orally or by any act or failure to act on the part of Borrower or
Lender, but only by an agreement in writing, signed by the party against whom
enforcement of any modification, amendment, waiver, extension, change, discharge
or termination is sought.
7.8 Liability. If Borrower consists of more than one person, the
obligations and liabilities of each such person hereunder shall be joint and
several. This Agreement shall be binding upon and inure to the benefit of
Borrower and Lender and their respective successors and assigns forever.
7.9 Duplicate Originals; Counterparts. This Agreement may be
executed in any number of duplicate originals and each duplicate original shall
be deemed to be an original. This Agreement may be executed in several
counterparts, each of which counterparts shall be deemed an original instrument
and all of which together shall constitute a single Agreement. The failure of
any party hereto to execute this Agreement, or any counterpart hereof, shall not
relieve the other signatories from their obligations hereunder.
7.10 Number and Gender. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural and vice versa.
7.11 Borrower's Records. Borrower shall furnish such financial
statements, invoices, records, papers and documents relating to the Property as
Lender may reasonably require from time to time to make the determinations
permitted or required to be made by Lender under this Agreement.
7.12 No Third Part Beneficiary. This Agreement is intended solely
for the benefit of Borrower and Lender and their respective successors and
assigns, and no third party shall have any rights or interest in the Tenant
Improvement and Leasing Commission Reserve, the Tenant Improvement and Leasing
Commission Reserve Fund, this Agreement, the Note, the Deed of Trust or any of
the Other Security Documents. Nothing contained in this Agreement shall be
deemed or construed to create an obligation on the part of Lender to any third
party, nor shall any third party have a right to enforce against Lender any
right that Borrower may have under this Agreement.
7.13 No Agency or Partnership. Nothing contained in this
Agreement shall constitute Lender as a joint venturer, partner, agent,
tenant-in-common or joint tenant of Borrower, or render Lender liable for any
debts, obligations, acts, omissions, representations, or contracts of Borrower.
7.14 Termination of Tenant Improvement and Leasing Commission
Reserve. After (a) payment in full of the Debt and release by Lender of the lien
of the Deed of Trust and (b) payment in full for all (i) Tenant Improvements
completed or contracted to be performed, or
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(i) Leasing Commissions due and payable, in each case prior to the date of the
payment described in (a) above, Lender shall disburse to Borrower all amounts
remaining in the Tenant Improvement and Leasing Commission Reserve, and this
Agreement shall terminate.
7.15 Enforcement of Agreement. This Agreement is executed by
Borrower and Lender for the benefit of Lender. Borrower understands and agrees
that, in connection with any sale of the Loan to an Investor (as defined in the
Deed of Trust), this Agreement may be assigned to such Investor.
7.16 Sole Discretion of Lender. Wherever pursuant to this
Agreement (a) Lender exercises any right given to it to approve or disapprove,
(b) any arrangement or term is to be satisfactory to Lender, or (c) any other
decision or determination is to be made by Lender, the decision of Lender to
approve or disapprove all decisions that arrangements or terms are satisfactory
or not satisfactory, and all other decisions and determinations made by Lender,
shall be in the reasonable discretion of Lender and shall be final and
conclusive, except as may be otherwise expressly and specifically provided
herein.
7.17 Completion of Tenant Improvements. Lender's approval of any
plans for any Tenant Improvement, release of funds from the Tenant Improvement
and Leasing Commission Reserve, inspection of the Property by Lender or Lender's
agents, or other acknowledgment of completion of any Tenant Improvement in a
manner satisfactory to Lender shall not be deemed an acknowledgment or warranty
to any person that the Tenant Improvement has been completed in accordance with
applicable laws.
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IN WITNESS WHEREOF the undersigned have executed this Agreement as of
the date first written above.
"BORROWER" ILLUMINA, INC.,
A Delaware corporation
By: /s/ TIMOTHY M. KISH
-------------------------------
Timothy M. Kish
Its: Vice President and Chief
Financial Officer
"LENDER" BNY WESTERN TRUST COMPANY AS TRUSTEE FOR
WASHINGTON CAPITAL JOINT MASTER TRUST
MORTGAGE INCOME FUND
By: /s/ COLEEN IWANO
-------------------------------
Colleen Iwano
Its: Senior Vice President
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