HomeMy WebLinkAbout4407_CCv0001.pdf RESOLUTION NO. 4407
RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF REDLANDS APPROVING DOCUMENTS,
APPOINTING A TRUSTEE, BOND COUNSEL AND
FINANCIAL, CONSULTANT, AUTHORIZING THE
SALE OF ITS MULTIFAMILY DOUSING REVENUE
BONDS AND MAKING CERTAIN FINDINGS IN
CONNECTION WITH THE ISSUANCE OF SAID
BOND (ORANGE VILLAGE APARTMENTS PROJECT)
WHEREAS, there is a shortage in the City of Red-
lands (the "City" ) of decent, safe and sanitary housing
which is affordable by persons in the lower end of the
income spectrum and a consequent need to encourage the con-
struction of rental units affordable by such persons and
otherwise to increase the housing supply in the City for
such, persons; and
WHEREAS, the City is authorized pursuant to Chap-
ter 7 (commencing with Section 52075) of Part 5' of Division
l of the California Health and Safety Code (the "Act" ) to
provide assistance in financings multifamily residential
rental housing developments with the City; and
WHEREAS, the City wishes to issue bonds pursuant to
the Act in order to provide >funds to ( imake a loam to
Maskan Development Company, a California Limited Partnership
(the "Developer") , to provide construction and permanent
financing for an approximately 188-unit multifamily residen-
tial rental development ( the "Project" ) to be owned by the
Developer or its successor or assignee and to be located on
an approximately 11-acre parcel of property at the corner of
San Bernardino Avenue and orange Street in the City, and
(ii) pay certain costs of issuing the Bonds; and
WHEREAS, as required by Section 147( f) of the
Internal Revenue Code of 1986, as amended, the City Council
on July 19, 1988 conducted a public hearing regarding the
issuance of revenue bonds by the City for the Project;
determined it to be in the public interest to issue such
bonds, the proceeds of which will be used to make a loan to
the Developer, all in furtherance of the purposes of the
Act; and
WHEREAS, the City now proposes to issue its bonds
to provide financing for the Project subject to an alloca-
tion from the California Mortgage Bond and Tax Credit Allo-
cation Committee, and
WHEREAS, said revenue bonds are to be issued pursu-
ant to an Indenture of Trust (the "Indenture") in the form
presented to this meeting by and between the City and
Seattle-First National Bank (the "Trustee" ) in an aggregate
principal amount not to exceed $8,000,,000 and are to be
designated as the "City of Redlands Variable Rate Demand
Multifamily Housing Revenue Bonds (Orange Village Apartments
Project) 1988 Series A and 1988 Series B (the "Bonds" ) , and
WHEREAS, all acts, conditions and things required
by the Act, and by all other laws of the State of Califor-
nia, to exist, to have happened and to have been performed
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precedent to and in connection with the issuance of the
aforesaid revenue bonds exist, have happened, and have been
performed in regular and due time, form and manner as
required by law, and the City is now duly authorized and
empowered, pursuant to each and every requirement of law, to
issue such revenue bonds for the purpose, in the manner and
upon, the terms herein provided;
NOW, THEREFORE, BE IT RESOLVED, DETERMINED AND
ORDERED BY THE CITY COUNCIL CE THE CITY OF REDLA DS AS OL—
LOWS.
Section 1. Recitals. The above recitals, and each
of them, are true and correct.
Section 2. Regulatory Agreement... The proposed
form of the Regulatory Agreement and Declaration of Restric-
tive Covenants by and wrong the City`, the Trustee and the
Developer (the "Regulatory Agreement" ) presented at this
meeting is hereby approved and the Mayor or the Mayor Pro
Tem (the "Mayor") and the City Clerk (the "City Clerk" ) of
the City are hereby authorized and directed, for and in the
name of the City, to execute the Regulatory Agreement in
substantially the form hereby approved, with such non-
substantive: changes therein as the officer or officers eke-
outing the same may approve, such approval to be conclu-
sively evidenced by the execution and delivery thereof and
are further authorized and directed to cause said Regulatory
Agreement to be recorded in the official records of the
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County of San Bernardino. The City Manager is hereby autho-
rized to select and appoint a Program Administrator to act
pursuant to the Regulatory Agreement and enter into an
appropriate program administration agreement with Program
Administrator for and in the name of the City.
Section 3. official Statement. The draft of the
Official Statement relating to the Bonds (the "Official
Statement" ) presented at this meeting is hereby approved in
substantially the form presented with such non-substantive
changes thereto as may be approved by the Mayor and the
Mayor is hereby authorized and directed, for and in the name
and on behalf of the City, to execute the Official Statement
in substantially the form presented, together with such non=
substantive changes thereto as may be approved by the Mayor
and the distribution of such Official Statement in connec-
tion with the sale of the Bonds is hereby authorized.
Section 4. Appointment of Trustee. Seattle-First
National Bank, Seattle, Washington, is hereby appointed as
Trustee under the Indenture ( the "Trustee" ) for the City and
the owners of the Bonds, with the duties and powers of such
Trustee as are set forth in the Indenture.
Section 5. Indenture. The proposed form of the
Indenture of Trust presented at this meeting from the City
to the Trustee is hereby approved and the Mayor and the City
Clerk are hereby authorized and directed, for and in the
name and on behalf of the City, to execute, acknowledge and
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deliver to the Trustee the Indenture in substantially the
form hereby approved, with such non-substantive additions or
changes as the officers executing the same may approve and
which may be consistent with the Purchase Agreement herein-
after referred to, such approval to be conclusively evi-
denced by the execution and delivery thereof.
Section 6. Form of Bonds. The form of the Bonds
as set forth in the Indenture as presented to this meeting
is hereby approved and the Mayor and the City Clerk are
hereby authorized and directed to execute by manual or fac-
simile signature, in the name and on behalf of the City and
under its seal, the Bonds in either temporary and/or defini-
tive form in the aggregate principal amount set forth in the
Indenture and all in accordance with the terms and provi-
sions of the Indenture.
Section 7. Loan Origination and Servicing Agree-
mentor The form of the Loan Origination and Servicing
Agreement (the "Loan Agreement" ) as presented to this meet-
ing by and among the City, the Developer, Redlands Federal
Savings and Loan Association (the "Association") and the
Trustee, whereby the proceeds of the Bonds are to be loaned
to the Developer (the "Developer Loan" ) for the purpose of
financing the Project is hereby approved and the Mayor and
the City Clerk are hereby authorized and directed, for and
in the name of the City, to execute the Loan Agreement in
substantially the form hereby approved, with such non-
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substantive changes therein as the officers executing the
same may approver such approval to be conclusively evidenced
by the execution and delivery thereof.
Section 8. Intercreditor Agreement. The farm of
Intercreditor Agreement ( the "Intercreditor Agreement") as
presented to this meeting by and among the City, the Trustee
and the Association, is hereby approved and the Mayor is
hereby authorized and directed, for and in the name of the
City, to execute the Intercreditor Agreement in substan-
tially the form hereby approved, with such nonsubstantive
changes therein as< the officer executing the same may
approve, such approval to be conclusively evidenced by the
execution and delivery thereof.
Section 9. 'Collateral Agreement. The form of the
Collateral Pledge Agreement (the "Collateral Agreement" ) as
presented to this meeting by and among the Association, the
Trustee and Seattle-First National Bank, as Collateral Agent
( the "Collateral Agent" ) , whereby the Association assigns
certain collateral to the Collateral Agent and the Trustee
to secure the Association' s obligations under its Letter of
Credit issued in connection with the Developer Loan, is
hereby approved.
Section 10. Remarketing Agreement. The form of
the Remarketing Agreement (the "Remarketing Agreement" ) , as
presented to this meeting to be executed by the City, the
Association, the Developer and Prudential-Bache Securities
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Inc. , as Remarketing Agent ( the "Remarketing Agent") , pursu-
ant to which the Remarketing Agent agrees to act as the
sales and placement agent in connection with the offering
and subsequent placement of the Bonds pursuant to the Inden-
ture, is hereby approved and the Mayor and the City Clerk
are hereby authorized and directed, for and in the name of
the City, to execute the Remarketing Agreement in substan-
tially the form hereby approved, with such changes therein
as the officers executing the same may approve, such
approval to be conclusively evidenced by the execution and
delivery thereof.
Section 11. Bond Purchase Agleement. The form of
Bond Purchase Agreement (the "Purchase Agreement" ) for the
purchase of the Bonds as presented to this meeting by and
among Bancroft, Garcia & Lavell, Inc. and Prudential-Bache
Securities Inc. , as underwriter, the City and the Developer,
and the sale of the Bonds pursuant thereto upon the terms
and conditions set forth therein is hereby approved and,
subject to such approval, subject to receipt of an alloca-
tion for the Bonds from the California Mortgage Bond and Tax
Credit Allocation Committee, and further subject to the
provisions of Section 12 hereof, the Mayor, or the Mayor ' s
designee, is hereby authorized and directed to evidence the
City' s acceptance of the offer made by the Purchase Agree-
ment by executing and delivering said Purchase Agreement in
said form with such non-substantive changes therein as the
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officer executing the same may approve and such matters as
are authorized by Section 12 hereof, such approval to be
conclusively evidenced by the execution and delivery
thereof.
Section 12. City Manager or Designee Authorized to
Establish Final Terms of Sale of Bonds. The City Manager,
or the City Manager 's designee, based on such advice of the
City staff ( "Staff") , as the City Manager may deem neces-
sary, is hereby authorized and directed to act on behalf of
the City Council to establish and determine (i) the final
principal amount of the Bonds, which amount shall not exceed
$8,000,000; ( ii) the initial interest rate on the Bonds,
which rate shall not exceed 11.0% per annum; (iii) the
underwriter 's discount for the purchase of the Bonds, which
amount shall not exceed 2% of the principal amount of the
Bonds, and (iv) such other matters as may relate to the
final terms and provisions for the sale of the Bonds as may
be consistent with the Indenture. The City Manager, or the
City Manager 's designee, upon the determination of such mat-
ters, is further authorized and directed, in and for the
name of the City, to execute any supplements or amendments
to the Purchase Agreement as,= based on such advice, may be
necessary to include such matters as so determined to be a
part of the Purchase Agreement. The authorization and pow-
ers delegated to the City Manager, or the City Manager 's
designee, by this Section 12 shall be valid for a period of
90 days from the date of adoption of this Resolution.
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Section 13 . Reguisitions. The Mayor or the May-
or 's designee or the City Manager is hereby authorized and
directed to execute one or more requisitions authorizing the
Trustee to pay the cost of issuing the Bonds from the pro-
ceeds of the Bonds pursuant to the Indenture.
Section 14. Other Acts. The officers of the City
are hereby authorized and directed, jointly and severallyt
to do any and all things, to execute and deliver any and all
documents, including but not limited to, the Official State-
ment, which in consultation with the Staff and Bond Counsel,
they may deem necessary or advisable in order to consummate
the issuance, sale and delivery of the Bonds, or otherwise
to effectuate the purposes of this Resolution, and any such
actions previously taken by such officers are hereby rati-
fied and confirmed.
Section 15. Approval of Changes by City Attorney
and Bond Counsel. Notwithstanding any other provision of
this Resolution, the documents approved hereby shall not be
executed by the officers of the City until any changes
thereto have been reviewed and approved by the City Attorney
and Bond Counsel.
Section 16. Bond Counsel and Financial Consul-
tant. The law firm of Best, Best & Krieger is hereby
retained as Bond Counsel on the terms set forth in their
proposal letter on file with the City. The firm of Seidler-
Fitzgerald Public Finance is hereby retained as financial
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consultant to the City in connection with issuance of the
Bonds.
Section 17. Effective Date. This Resolution shall
take effect immediately upon adoption.
ADOPTED this 19th day of July, 1988.
Mayor of the----C—lty of
Redlands, California
ATTEST
City C- erk of th
t Y of
Redlands, Ca3ifornia
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1, Lorrie Poyzer, City Clerk of the City of Red-
lands, California, do hereby certify that the foregoing
Resolution was regularly introduced and adopted by the City
Council of the City of Redlands, California, at a regular
meeting thereof held on the 19th day of july, 1988, by the
following vote of the City Council:
AYES.- Councilmembers Johnson, Cunningham; Mayor Beswick
NOES: Counci lmember DeMirjyn
ABSENT: Councilmember Wormser
ABSTAINED: None
IN WITNESS WHEREOF, I have hereunto set my hand
and affixed the official seal of the City of Redlands, Cali-
fornia, this 19th day of JulY 1988.
Ci'ty Cl,#rE-kof -t----
h'�ity of
Redlands, Calif ii�61a
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jrrOl3Ob
CERTIFICATION
I , Lorre Poyzer, City Clerk of the City of
Redlands , California, do hereby certify that the foregoing
Resolution: No. 4407 was regularly introduced and adopted
by the City Council of the Cityof Redlands , California,
at a regular meeting thereof held on the 19th day of July,
1988, by the following vote of the City Council
AYES : Councilmembers Johnson, Cunningham;
Mayer Beswick
NOES : C ouncilmember DeMirjyn
ABSENT : Councilmember Wormser
ABSTAINED : None
IN WITNESS WHEREOF, I have hereunto set my hand
and affixed the official seal of the City of Redlands,
California, this loth day of August, 1988 .
City Clem
City of Redlands , California
LAW OFFICES OF
BEST, BEST & KRIEGER
July 13, 1988
MEMORANDUM
TO: MAYOR, CITY COUNCIL AND CITY MANAGER
FROM: BOND COUNSEL
RE: PUBLIC HEARING AND APPROVAL OF BOND DOCUMENTS FOR
THE ORANGE VILLAGE APARTMENTS PROJECT
The City Council has previously evidenced its
intention to assist in providing permanent financing for a
188-unit multifamily rental housing project (the "Project" )
owned by Maskan Development Company, a California Limited
Partnership ( the "Developer" ) . The financing is being
undertaken pursuant to the provisions of Sections 52075 and
following of the Health and Safety Code .
In order to satisfy the federal tax requirements
with respect to the tax-exempt status of the bonds to be
issued in this financing, it is necessary that the City
Council conduct a public hearing on the Project and its
proposed financing. At this hearing, comments of interested
citizens with respect to the Project and its financing
should be taken. At the conclusion of the hearing, the City
Council should then consider adoption of the first of the
two attached resolutions indicating its approval of the
Project and its financing.
The second of the two attached resolutions approves
the documents under which the City' s $8,000,000 Variable
Rate Demand Multifamily Housing Revenue Bonds (Orange Vil-
lage Apartments Project) 1988 Series A and 1988 Series B
the "Bonds" ) will be issued.
The Bonds will be issued under an indenture of
trust ( the "Indenture" ) between the City and Seattle-First
National Bank , as trustee (the "Trustee") . The interest
rate on the Bonds will be adjusted weekly by a remarketing
agent, Prudential-Bache Securities Inc. , pursuant to a
remarketing agreement (the "Remarketing Agreement" ) .
Under a Loan Origination and Servicing Agreement
(the "Loan Agreement" ) between the City, the Developer and
Redlands Federal Savings and Loan Association the "Associa-
tion" ) , the proceeds of the Bonds will be loaned to the
Developer to provide permanent financing for the project .
The obligation of the Developer to make payments under the
Loan Agreement will be further secured by an irrevocable
106
LAW OFFICES OF
BE. BEST & KRIEGER
direct pay letter of credit from the Association covering
the project and interest on the Bonds the "Letter of
Credit" ) . Under a Collateral Agreement, the Association
will also give the Trustee a pool of collateral to further
secure the Letter of Credit . The payments by the Developer
and draws under the Letter of Credit are the sole source of
repayment on the Bonds . No funds of the City are obligated
to the payment of the Bonds. The Letter of Credit will
result in an "AAA" rating on the Bonds by Fitch Investors
Service.
In accordance with provisions of federal tax law,
State law and additional requirements imposed by the City, a
portion of the units in the Project will be rented to very
low income tenants at prescribed rents. In order to assure
compliance with these requirements, a regulatory agreement
the ( "Regulatory Agreement" ) between the City and the Devel-
oper would be recorded on the property.
This resolution also approves the sale of the Bonds
to Bancroft , Garcia & Lavell, Inc. and Prudential-Bache
Securities Inc. pursuant to a Bond Purchase Agreement pre-
sented by those underwriters and approves an Official State-
ment to be used in connection with the sale of the Bonds.
Finally, the resolution retains our firm as Bond
Counsel and Seidler-Fitzgerald as financial consultant to
the City in this financing.
It is expected that the State Mortgage Bond and Tax
Credit Allocation Commitment will grant an allocation for
the issuance of the Bonds at its meeting of July 21 , 1988 .
This financing would then proceed to close on July 29 , 1988.
The forms of the Indenture, Loan Agreement, Regula-
tory Agreement , Remarketing Agreement, Bond Purchase Agree-
ment, official Statement, Intercreditor Agreement and
Collateral Agreement, all of which are approved by this
resolution, are on file with the City Clerk.
In order to conclude the financing, we would recom-
mend the adoption of the two attached resolutions at the
conclusion of the public hearing.
Francis J. Baum
John R. Rottschaefer
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BEST, BEST & KR EGER
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July 13, 1988
Mayor and City Council of
the City of Redlands
0 Cajon Street
Redlands, California 92373
Re Proposal for Bond Counsel Services
City of Redlands Proposed
Multifamily Housing revenue Bonds
(Orange Village Apartments Project )
Ladies and Gentlemen:
We are pleased to strait the following proposal:
for bond counsel services in connection with the City of
Redlands ' proposed issuance and sale of its $8,000, 000
Variable Rate Demand Multifamily Rousing Revenue Bonds 1988
Series A and. 1988 Series H in order to finance multifamily
rental housing to be owned by Mas an Development Company,
California Limited Partnership, under Chapter 7, Part 5 of
Division 31 of the California Health and Safety Code,., The
firm of Rest, Best & Krieger would be happy to serve as bond
counsel on this financing and proposes to perform the
following services on the basis set forth in this letter,.
We will confer and consult with City staff' and the
City 's consultants and underwriters; on all matters relating
to the financing including participation in the review and
selection of appropriate financing methods.- We will assist
the City in identifying the most advantageous method of
financing Erased upon our experience and we will attend all
LAW OPFCCS Or
EST. BEST & KR6EGER
Mayor and City Council of the
City of Redlands
July 13, 1988
Page 2
meetings of the City ' s staff and consultants at which
financing methods are to be discussed and analyzed for suc-
cessful completion of the financing.
our services will include the preparation of all
ordinances , resolutions, notices, bond forms and other docu-
ments required in the proceedings. We will also review any
official statement prepared on behalf of the City, and
attend all meetings in which any action in connection with
the proceedings is to be taken.
Subject to completion of the financing to our
satisfaction, Best, Best & Krieger will issue its approving
legal opinion to the purchasers of the bonds to the effect
that all proceedings have been legally undertaken for the
authorization, issuance, sale and delivery of the bonds, and
that interest on the bonds is excluded from gross income for
purposes of federal and state personal income taxation. We
will also issue appropriate supplemental opinions and cer-
tificates as may be necessary or appropriate.
Finally, we will confer and consult with officials
of the City with respect to problems which may arise during
the period of servicing and payment of the bonds, and pro-
vide any and all other services commonly expected of bond
counsel .
The fee for the foregoing legal services with
respect to the issuance of the bonds will be $35, 000 .
The fee for the foregoing services will be payable
upon completion and sale of the bonds from the proceeds of
the financing. If other services are requested by the City
which are not within the scope of those outlined above, they
will be performed on a time basis at the hourly rate of the
attorneys involved. In addition, we will be paid our
expenses incurred in connection with the financing out of
proceeds of the financing.
in the event that bonds are not issued, we will be
paid a reasonable fee, to be mutually agreed upon based upon
the applicable hourly rates of the attorneys in our firm
undertaking the work prior to abandonment , and to be paid or
reimbursed to the City by the participating developer .
LAW OFFtCCS OF
BEST, BEST & KRIEGE:R
Mayor and City Council of the
City of Redlands
July 13, 1988
Page 3
if this arrangement is satisfactory to you, please
return to us a copy of this letter executed by an authorized
officer of the city.
Respectfully submitted,
LA
Francis J. Baum of
Best , Best & Krieger
FJB:bmf
TERMS OF BOND COUNSEL EMPLOYMENT
APPROVED THIS 19th DAY OF
July 1988 .
Authorized Officer of the
City of Redlands, California
ATTEST :
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j01, �ea
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RECORDING REQUESTED BY AN � " ��J, ; �, ��G��i 4s��fdfi � C
WHEN RECORDED MAIL TC, n � �
City of Redlands t r
0 Cajon Street
Redlands, CA 92373 Z`3
Attention City Manager
FIRST DEED OF TRUST, ASSIGNMENT OF RENO'S,,
SECURITY AGREEMENT AND FIXTURE FILING FINANCING STATEMENT
THIS FIRST CREED OF TRUST, ASSIGNMENT OF RENTS , SECURITY
AGREEMENT AND FIXTURE FILING FINANCING STATEMENT ( this "Deed of
'Frust") is dated as of July 1 , 1988 for reference purposes only,
and is entered into by and between Mas an Development Company, a
California Limited Partnership ( the "Trustor" ) owning title to
the Premises ( as hereinafter defined) , to Chicago Title Insurance
Company ( the "Trustee" ) , for the benefit of Seattle-First
National Bank ( the "Beneficiary" or "Bond Trustee" )
THIS DEED OF TRUST is given to secure the obligations
of the Trustor to the Beneficiary as assignee under that certain
Loan Origination and Servicing Agreement of even date herewith
( the "`Loan Agreement" ) by and between the City of Redlands,
California , a general law city and a public corporation ( the
"Issuer") , and the Trustor pursuant to which the Issuer has
agreed to loan to the Trustor the proceeds of the sale of certain
Bunds to enable the Trustor to provide permanent financing for a
project (referred to herein as the "Project" ) located on the real
property described in Exhibit A hereto and incorporated herein by
this reference ( the "Land" ) . This Deed of Trust is given in
connection with those certain $8, 000, 000 City of Redlands , California
Variable Rate Demand multifamily Housing Revenue Bonds , 1988
Series A and 1988 Series B (Orange Village Apartments
Project) (collectively, the, "Bonds" ) including all replacements
therefor. The Bonds are being issued under that certain
Indenture of Trust of even date herewith ( the "Indenture" ) by and
between the Issuer and Seattle-First National Bank as Trustee .
The indebtedness of the Trustor with respect to the
repayment of the loaned proceeds of the Bonds ( including the
payment of the principal amount thereof together with interest
thereon at such rate or raves of interest per annum as may be
established from time to time pursuant to the Indenture) is
evidenced by that certain Note of even date herewith in the
original principal amount of $8 ,000 ,000 ( the "Note" ) made by the
Trustor payable to the order of the Issuer and assigned to the
Beneficiary and is secured by, inter alga, this First Deed of
Trust, Assignment of Rents , Security Agreement and Fixture Filing
Financing Statement of even date herewith ( the "First Deed of
i
qI
.—.d..—
1,223
Trust" ) graniled with respect to the Premises tis hereinafter
detained ) by the Tr'usLor for the, benefit of 33eneficiary.
The Bunds (and; Trust r "s obligations t pay principal
and interest with respect thereto) are further secured by, and
are payable from drawings upon, that certain irrevocable direct
draw litter of credit of even date herewith .in the principal
amount of $8, 000,000 plus the Int r st deserve as defined therein
(the "LetterofCredit" ) issued by Redlands Federal Savings and
T,oan Association, a fede-ral savings and loan association (the
"Association" ) , to the Bond Trustee for the account of the
Trustor pursuant to a Reimbursement Agreement of even date
herewith (the "Reimbursement Agreement" ) by and between the
Trustor and the Association. The obligations of the Trustor r tee
the Association under the i.m ur em r t Agreement are secured by
that certain Second Deed of Trust, Assignment of Rents and
Security Agreement orf even date herewith (the "Second teed o
Trust" ) granted with respect to the Premises (hereinafter
defined) by the Trustor for the 'benefit of the Association. The
Bond Trustee, the Association, and the Beneficiary have entered
into that certain Intercrw ditor Agreement of even date herewith
(the "Int rcreditor Agreement" ) , to specify certain rights and
procedures with respect to this transaction as among the Band
'trustee,- the Association ciation and the Beneficiary.
Pursuant t the Indenture, the Issuer has assigned t
the Bond Trustee all of the Issuer's rights, interests and
benefits fits tinder the Loan Agreement,, as amended, together with the
rights and interests of the Issuer under, inter a.lia , the Note.
The ..ien of that certain ,Second treed of Trust is subject and
subordinate to the lien of this teed of "gust which is to be
recorded prior to that certain Second ,Deed of Trust.
FOR GOOD .Anka? VALUABLE CONSIDERATION, including the
indebtedness herein recited and the trust herein created, the
receipt and adequacy of which are hereby acknowledged, the
Trustor hereby irrevocably grants, transfers, sets over, conveys
and assigns to the Trustee, IN TRUST, WITH POWER SALE, for the
benefit and security of the Beneficiary, under and subject to the
terms and conditions hereinafter set forth, all rights, titles,
interests, estates, power and privileges that the Trustor not his
or may he"eaft,er acquire in or to the following property and
interests therein (collectively, the "Trust Estate:"):
-2-
;
THAT CERTAIN REAL PROPERTY located in the County of
San Bernardino, State of California more particularly described
n Exhibit attached hereto and referred to herein as the Land
(the Land and the Improvements (as hereinafter defined) are
sometimes aIle-- ive :y referred to herein an the "Premises" ) .
TOGETHER IT all interests, estates or other claims,
beth at law and in equity, which Truster noir has or may hereafter
acquire in the Premises,-
TOGETHER W
remisesT ETH ITA all easements, rights-of-way and rights
now owned or hereafter acquired by Trustor used in connection
with the Premises or the Project or as a means of access to
either or both, including, without limiting the generality of the
foregoing, all rights to the nonexclusive use of common drive
entries, and, all tenements,, heredi.taments and appurtenances
thereof and thereto, and all water and, water rights and shares of
stock evidencing the same;
TOGETffER WITH any and all buildings, landscaping and
other improvements noir or hereafter erected in or on the Premises
including, but not limited, to the fixtures, attachments,
appliances, equipment, machinery and other articles attached t
said buildings and improvement: (collectively, the
"Improvements" ) , all of which shall he deemed and construed to be
part of the realty '
TOGETHER WITH all leasehold, estates, right, title and
interest of 'Trustor in and to all .leases or subleases covering
the Premis,as or the Project or any portion thereof or interest
therein now or hereafter existing or entered into, and all right,
title and interest of Trustor thereunder including,, without
limitation, all cash or security deposits, advance rentals, and
deposits r payments of a similar :nature (collectively, the
"Deposits" ) ;
TOGETHER WITH all oil and gas and other mineral rights
in or pertaining to the Land and all royalty, leasehold and
"ether rights of Trustor pertaining thereto;
TOGETHER WITH all right, title and interest now owned
or hereafter acquired by Trustor its and to all options to
ourchase or lease the Premises or any portion thereof or interest
therein, and any greater estate in the Premises, now owned or
hereafter acquired
TOGETHER WITH all right, title and interest of Trustor,
now owned or hereafter acquired, in and to any land lying within
the right-of-way of any street, open or proposed, adjoining the
Land, and any and. all ;sideways, alleys and strips and gores o
land adjacent to or used in connection with the Land, Premises or
Project;
-3-
& . � ,
TOGETHER WIT all the estates, interest, right, title,
ether claim or demand, both at law and in equity, including
claims r° demands with, respect to the proceeds of insurance, in
effect with respect thereto, which Trustor now has or may
hereafter acquire in the Premises, and any and all awards rade
dor the taking by eminent domain, or by any proceeding or
purchase in lieu thereof, of the whole or any part of the Trust
Estate, including without limitation any award resulting from a
change of grade of streets and any award for severance, damages,
(collectively, the "Proceeds" ) .
FOR THE PURPOSE OF SECURING:
(a:) payment and performance of each and ever
obligation, covenant and agreement of the Trustor contained in
the Loan Agreement and any amendment- or supplement thereto,
extension r' renewal. thereof r replacement therefor including,
without limitation, t"he payment of the Note and all rather sums
agreed to be paid by 'trustor pursuant to the Loan Agreement. and
performance of all other obligations of the `trustor thereunder;
(h) payment of all sura advanced hy, r on behalf of
the Trustee or the 'Beneficiary to protect the Frust Estate;
(a) performance of every obligation, covenant and
agreement of Trustor rr ontained herein;
(d) payment gat all other sans , with interest thereon,
which may hereafter be loaned: to Trustor, or its ,successors or
assigns, by the Issuer, or its successors or assigns, when
evidenced by a promissory note or notes reciting that they are
secured by this. Deed of Trust;
(e) performance of every obligation, covenant and
agreement of `gyrus-torr contained in any agreement now or hereafter
executed by 'trustor which recites that the obligations thereunder-
are secured by this Deed of Trust;
(f ) compliance with and performance of each and every
provision of any declaration of covenants, conditions or
restrictions pertaining to the Frust Estate or any portion
thereof including, without limitation,- that certain Regulatory
Agreement anti Declaration of Restrictive C (-,-r)ants of even data
-
. � 12,
A
herewith (the "Regulatory Agreement" by and among Trustor, the
Issuer and Bond Trustee; and
(g) payment of all sums , with interest thereon at the
Association t o that may become due and payableto or for the
benefit of Beneficiaryor Trustee pursuant to the terms
This d of Trust the Cosa Agret:ment, the Note, the
Indenture,the RegulatoryAgreement and any other deed of trust,:
mortgage, s -:urit r ment guaranty or other instrument given
to evidence or further secure the payment or performance of any
obligation secured hereby may hereafter collectively referred
to as the "Financing Documents. "
n
81-271,223
TO 'PROTECT THE PREMISES AND THE sEcuRrr� CRANTED BY
THIS DEED, OF TRUE , TRUSTOR HEREBY COVENANTS AND AGREES ,
FOLLOWS:
ARTICLE
COVENANTS AND AGREEMENTS Ota TRUSTOR
Section l. 01., Pa, ment of Secured obligations. Trustor
shall pay when due all amounts required to be paid, r delivered
to Beneficiary as provided in the Loan Agreement; the principal
of and interest on any sum advanced in the future and secured b
this teed of Trust; and the principal_ of and interest on any
gather surer secured by :this Deed of 'frust and all charges, tees and
gather sums as prided it the Loan Agreement.
Section 1. 02. Maintenance, Repair, Alterations.
Trustor r shell maintain and preserve the Wriest Estate in grand
condition and repair and in a prudent and businesslike manner,-
Truster
anner,Truster shall complete promptly and in a grad and workmanlike
manner any Improvement- which may be now or hereafter constructed
on the Premises and promptly restore in like manner any
Improvement which may be damaged or destroyed thereon from any
cause whatsoever, and: pay when due all: claims for labor performed
and materials furnished therefor; Trustor shall: comply with all,
lags, ordinances, rules, regulations, covenants, conditions,
restrictions and carders of any governmental authority noir or
hereafter affecting the conduct or operation of Trustor 's
business or the Trust Estate or any part thereof or requiring any
alteration or improvement to be made thereon; Trustor shall. not
commit, surfer or permit any act to be, done in, upon or to the
Trust Estate or any part thereof in violation of any such laws,
ordinances, rules, regulations or orders, or any covenant,
condition or restriction now or hereafter affecting the Promises;
Trustor shall not commit or permit any waste or deterioration of
the Trust Estate, and shall keep and maintain abutting grounds,
sidewalks, roads, parking and landscape areas in gonad and neat
order and repair , Trustar will not take ( r tail to take) any
action, which i taken (gar not so taken) would increase in any
way the r=isk of dire or ether hazard occurring to or affecting
the premises or otherwise would impair the security
Beneficiary in the Trust Estate; Trustor ar sh all comply with the
provisions of all leases, if any, onst itut i ng a portion of the
Frust Estate; Trustor shell not abandon the Trust Estate or any
portion thereof or brave the Premises unprotected, unguarded,
vacant or deserted; Trustor shall not initiate, joint it or
consent to any change in any zoning ordinance, general plan,
specific plan, privets restrictive covenant or other public or
private restriction limiting the rases which may be made of the
Premises by Trustor or by the owner thereof ; Trustor shall secure
and maintain in till fierce and effect all permits necessaryfor
the use., occupancy and operation of the Trust Estate; except as
otherwise prohibited or restricted; by the Financing Documents, or
any of their, 'Trustor shall: dna any and all other acts which may be
_ -
C-44,-
reasonably ly n ces ary to protect or preserve the value of the
Trust Estate and the rights of Trustee and Beneficiary with
respect thereto.
Trustor herebyagrees that Beneficiary may conduct from
time to time, upon reasonable notice, through its representatives
cin--site inscti ns and observations t11 the maintenance anti;
repair of the Trust Estate, including' review f all maintenance
and repair programs and practices and all reports and records,
including the records of expenditures, relating thereto, and t2
such gather facilities, practices and records of Trustor relating
to the Premises as beneficiary deems to be necessary or
appropriate in order to monitor mast r 's compliance with the;
provisions of this Section 1 .02
Section 1 . 03. lie uiredInsuranc
(a) Trustor shall at all times provide, maintain, keels
in fill force and effect or cause to be provided, maintained, and
kept in full force and effect, at no expense to Trustee or
Beneficiary, policies of insurance in form and amounts required
by the Reimbursement Agreement. Without limiting the generality
of the foregoing, Truster shall provide, maintain and keep in
force or cause to he providedmaintained and kept in force, at
no expense t Trustee or Beneficiary such additional insurance as
is customarily required for projects of a, similar nature.
(la) All policies of insurance required by the terms of
this meed of Trust shall either have attached thereto a lender 's
lass payable endorsement for the benefit of Beneficiary in fear
satisfactory to Beneficiary or shall nam 'Beneficiary a
additional insured and shall contain an endorsement or agreement
by the Insurer that any loss shall be payable in accordance with_
the terms of such policy notwithstanding any act: or negligence of
Truster or any party holding under Trustor which might otherwise
result in forfeiture of said ,insurance, andthefurther agreement
f the insurer waiving all rights of setoff, counterclaim ,anal:
deduction against Trustor.
Section 1 . 04. Delivery of Policies, Payment of
Premiums. Trust o. shall furnish Beneficiary with an original of
all policies of insurance required under Section 1.03 above or a
certificate of insurance for each required policy setting forth
the coverage, the limits of liability, the deductibles, if any,
the name of the carrier, the policy number, and the period, of
coverage, which certificates shall he executed by authorized
officials of the companies issuing such insurance, or by agents
or attorneys-in-fact authorized tc issue said certificates in
which event each such certificate shall he accompanied by a
notarized affidavit, agency agreement, or power of attorney
evidencing the authority of the signatory to .issue such
certificate on behalf of the insurer named therein) . Trustor may
provide any of the required insurance through blanket policies
- -
C W1
a ;c .
carried by Trustor and covering more than one location. At least
thirty t 0i days prior to the e p r ton of each required policy`,
Trustor shall deliver to Beneficiary evidence satisfactory t
Beneficiary of the payment of premium and the renewal or
replacement of such policy continuing insurance in form a
required by this Deed of Trust., All :such policies shall contain
a provision that, notwithstanding any contrary agreement between
Trustor and the insurance company, such policies will, not be
cancelled., allowed to .lapse without r newa.l, surrendered or
materially amended (which term shall include any reduction in the
scope or limits of coverage) without at least thirty ( 3 0 ) days'
prior written notice to Beneficiary. Any consents and approvals
of 'Beneficiary required by this Section shall, be given or
withheld in the reasonable discretion of 'Beneficiary. if Trustor
fails to provide, maintain, keep in force or deliver t
Beneficiary the policies of insurance required by this Deed of
Frust or by any of the Financing Documents, Beneficiary may (but
shall have no obligation to) procure such insurance, or single
interest insurance for such risks covering 'Beneficiary's
interests, and Trustor will pay all prAemiu-ms therefor promptly
upon demand by Beneficiary, and until such payment is ''rade by
`trustor, thfi amount of all such premiums, together with interest
thereon at the Association Rate, shall be secured by this Deed of
Trust-.
Section 1. 05. Casualties . Trustor shall give prompt
written notice thereof to Beneficiary after the happening of any
casualty to or in connection with the Trust Estate ;or any part
thereof, whether or not covered by insurance.. Tn the event of
such casualty, the gross proceeds less all expense ( including
attorneys' fees ) incurred in the collection of any insurance
proceeds shall, subject to the provisions of the Loan Agreement,
rent,
the Reimbursement Agreement and the Indenture, be payable to Bond
Trustee. Trustor hereby authorizes and directs any affected
insurance company to make payment of such proceeds in such a case
directly to Bond Trustee or Beneficiary such proceeds t
Beneficiary. Beneficiary is h reby authorized and empowered by
Truster at Beneficiary's option and in Beneficiary's sole
discretion, as attorney-in-fact for Trustor, to snake proof of
loss, to appear in and prosecute any action arising :from any
policy or policies of insurance, and upon the occurrence of a
Event of Default hereunder or 'ander the Loan Agree out, to
settle, adjust or. compromise any claim for lass, damage or
destruction of the Trust Estate or any part thereof under any
policy or policies of insurance without the prior written consent:-
of Trustor to such settlement adjustment or compromise. In the;
event of any damage to or destruction, of the Premises, all
insurance proceeds shall be applied in accordance with the terms
f the Egan Agreement, the Reimbursement Agreement and the
indenture.
Section 1. 06. Assignment ofolicie n �`cr ecic sure.,
In the event of foreclosure of this Deed of Frust or other
- .-
transfer of title or assignment of the Trust Estate in
extinguishment, in whale or in part, of the debt secured hereby,
all right., title and interest of Trustor in and to all policies
of insurance required by Section on 1 . hereof and any unearned
premiums paid thereon, shall, without further act, be assigned to
and shall inure to the benefit of and pass to the successor in
interest .t Trustor or the purchaser or grantee of the Trust_
Estate, and Trustor hereby appoints Beneficiary its lawful
attorney-in-fact to execrate an assignment thereof and any other
document necessary to effect such transfer.
Section 1. 07. Subrogation; 'waiver of Offset.
(a) if Beneficiary is Stade a party to any litigation
concerning this reed of Trust, any of the Financing Documents,
the Trust Estate or any part thereof or interest therein, or the
occupancy of the Trust Estate by Trustor or a t*.enant of Trustor,
then Trustor shall indemnify, defend and hold the Beneficiary
harmless from all Liability by reason of said litigation,
including reasonable attorneys ' fees and expenses incurred by
Beneficiary as a result of any such litigation, 'whether or not
any such litigation is prosecuted to judgment. The 13enef.iclary
shall promptly notify Trustor of any duty to so indemnify the
Beneficiary, and Trustor shall have a reasonable time t
undertake such indemnification. The Beneficiary will filly
cooperate in the defense of any claim for which it seeks
indemnification. Upon the occurrence of an Event of Default
hereunder, Beneficiary may employ an attorney or attorneys t
protect its rights hereunder and in the event of such employment
following any breach by Trustor, Trustor shall: pay 'Beneficiary
reasonable attorneys' fees and expenses incurred by such
Beneficiary, whether or not an action is actually commenced
against Trustor by reason of its breach.
(b) "trustor waives any and all richt to claim or
recover against Beneficiary, its officers, employees, agents and
representatives, for loss of or damage to 'trustor, the Frust
Estate, 'rush is property or the property of others under
Trustor's control .from any cause insured against or required to
be insured against by the provisions of this Deed of Trust;
provided, however, that this waiver of subrogation shall not be
effective with respect to any policy of insurance permitted or
required by this Deed of Trust if i. ) such policy prohibits, or
if coverage thereunder would be reduced as a result of such
waiver of subrogation and (ii ) Trustor is unable to obtain from
carrier issuing such insurance a policy that, by special
endorsement or otherwise, permits such a waiver of subrogation.
(c) Except as otherwise specifically provided herein,
all sums sayable by Trustor pursuant to this ?deed of 'frust shall
be paid without notice, demand, counterclaim, setoff, deduction
r defense and without abatement, suspension, deferment,
diminution or reduction and the obligations: and Liabilities of
-
r
-',2'71223
Truster hereunder shall in no way be released, discharged or
otherwise affected (except as expressly provided herein) by
reason of: (i ) any damage to or destruction of or any
condemnation or similar taking f the Trust estate or any part
thereof (ii ) any restriction or prevention of or interference by
any third party with any use of the Trust Estate or any part
thereof (iii ) any titl.e defect or encumbrance or any eviction
from the prerises or any part thereof by title paramount or
otherwise; ( iv) any bankruptcy, insolvency, reorganization,
composition, adjustment, dissolution, liquidation or other like
proceeding relating to Beneficiary, or any action takers with
respect to this meed of Trust by any trustee or receiver of
Beneficiary,ry, r by any court, In any such proceeding; ) any
claim which Truster has or aright have against enef iciary (vi )
any default or failure on the part of Beneficiary to perforin or
comply with any of the terms hereof or of any gather agreement
with Trustor; r (vii ) any other occurrence whatsoever, whether
similar or dissimilar to the foregoing; whether or not ,"Trustor
shall, have notice or knowledge- of any of the foregoing. Except
as expressly provided herein, Trustor waives all 'rights now or
hereafter conferred by statute or otherwise to any abatement,
suspension, deferment, diminution r reduction of any sum secured
hereby and payable by Trustor.
Section 1. ,. Taxes and Impositions .
(a ) Trustor shall pay, or cause to be paid at lest
tern (10) days prior to delinquency, all real property taxes and
assessments, general and special, and all tither taxes and
assessments of any 'rind or nature whatsoever, including without
limitation, n an-g v rnr ental levies or assessments such as
maintenance charges, levies or charges resulting from covenants,
conditions and restrictions affecting the Trust Estate, which are
assessed or imposed upon the "gust Estate, or upon Trustor as
€ ner'° or operator of the 'frust, Estate, or become due and payable,
and which create, may create or appear to create a; lien upon the
`rust Estate, or any part thereof, or upon any personal: property,
equ p,ment or other facility used in the operation or maintenance
thereof (all: the above ollWectivelwy hereinafter referred to a
"Impositions" ) ; provided however, that if, by law, any such
Imposition is payable, or may at the option of the taxpayer be
paid, in installments, Trustor may pay the same or cause it to be
paid, together with any accrued interest on the unpaid balance of
such Imposition, in installments as the same become due and
before any farce, penalty, interest or cost may be added: thereto
for the nonpayment of any such installment and interest,.
(b) If at any time after the date- hereof there shall
be assessed or imposed (i ) a tax or assessment on the Trust
Estato in lieu of or in addition to the Impositions payable by
Trustor pursuant to subparagraph ) hereof, or ( ii ) a license
fey:, tax, or assessment imposed on Beneficiary and measured by or
bared in whole or in part upon the amount of the outstanding
obligations s cur d her `y, then all such taxes, assessments or
fees shall be deemed to be included within the term "Impositions"
as defined in subparagraph (a`) hereof, and Trustor shall pay an
discharge the sane as herein provided with respect to the payment
f Impositions. 1f Trustor fails to pay such Impositions prior
to delinquency or if Trustor is prohibited by lair from yi
such Impositions, Beneficiary may at its option declare all
obligations secured hereby tog8ther with all accrued interest
thereon, immediately due and payable.
( ) Subject to the provisions of paragraph (d) of this
Section 1. 08 and upon request by Beneficiary, Trustor shall,
deliver to Beneficiary within thirty ) days aftar the date
upon which any such Imposition is due and payable by Trustor
official receipts of the appropriate to i.n authority, or other
goof satisfactory to Beneficiary, evidencing the payment,
thereof.
(d) Trustor ;shall have; the right before any
deli,nquency occurs to contest or object to the amount or validity
f any such Imposition by appropriate legal proceedings, but this
shall riot he deemed or construed in any gray as relieving,
modifying or extending Trustor's covenant to pay .any such
Imposition at the time and in the manner provided in this Section
1. 0 8, unless- Truster ;has given prior written notice t
Beneficiary of Trustors intent to so contest or object to an
Imposition, and, unless, at Beneficiary's sole option, .i ) Trustor
shall. demonstratc, to Beneficiary's reasonable satisfaction that
the legal proceedings shall conclusively operate to prevent the
sale of the Trust estate, or any part thereof, to satisfy such
Tinposition prier to final determination of such proceedings; or
(ii ) Truster shall furnish a good and sufficient bond or surety
as requested by and reasonably satisfactory to Beneficiary, or
(iii) Trustor shall demonstrate to Beneficiary' s reasonable
satisfaction that Truster has provided a good and sufficient
undertaking as may he, required or permitted by law o accomplish
a stay or any such sale.
(e) Trustor shall not suffer, persalt or initiate the
joint assessment of any real and personal property which may
constitute all or a portion of the Trust Estate or suffer, permit
or initiate any other procedure whereby the lien of the real
property taxes and the lien of the personal property taxes shall
be assessed, levied or charged to the Trust Estate as a single
I len.
Section 1. 09 . Utilities. Trustor shalMl pay or shall
cause to he paid when due all, utility charges which are incurred
for the benefit of the Trust Estate or which may become a Charge
or lien against the Trust Estate for gas, electricity, water or
sewer services furnished to the Trust ` state and all other
assessments or charges of a similar nature, whether public or
private, affecting or related to the Trust Estate or any portion
1g—
.vsrta.:8'�ai;tr%TmnSas'I'm_%w, , sR2f :sw,Y>v�\'U s,�tvs',rYss-1zre.r`t`
71, 223
thereof, whether or riot such faxes,, assessments r charges ars or
may become liens thereon.
Section 1.. 10 . Defense of Actions and Casts .. Trustor,
at no cost or expense to enefic-i.ary or Trustee, shall appear in
and defend any action or proceedingpurporting to affect the
security hereof, the ;ether Financing Documents, anis additional or
rather security for the obligations secured hereby, the interest
f Beneficiary, or the rights, powers or duties of berieficiary or
Trustee hereunder. if Beneficiary and Trustee, or either o
them, elects to become a party to such action or proceeding, or
is made a party thereto or to any other action or proceeding, of
whatever kind or nature, concerning the Loan Agreement;,- this Deed
f Trust, any of the Financing cu!menta, the Trust Estate or any
part thereof or interest therein, or the occupancy thereof,
Trustor shall indemnify, defend and hold Trustee and Beneficiary
harmless from all liability, damage, cost and expense incurred by,
Trustee and Beneficiary, or either of them, by reason of said
action or proceeding (including, without limitation, Trustee's
fees and expenses, the fees of attorneys for Trustee and for
Beneficiary, and ether expenses, of whatever .kind of nature,
incurred by Trusted or Beneficiary, or either of them, as a
result of such action r proceeding) , whether or not such action
r proceeding is prosecuted to judgment or decision. Immediately
upon demand therefor by Trustee or Beneficiary,is a.ry,, Trustor shall pay`
thereto an amount equal to Tru8tor' s l-iabiliter to such person
under this Section, and until: paid, such sums shall be secured
hereby. The Beneficiary shah: promptly notify the Trustor of any
duty to so indemnify the Beneficiary, and the Trustor for shall have
:a reasonable time to undertake such indemnification. The
Beneficiary will fully cooperate in the defense of any claim for
which it seeks indemnification.
Section 1. 11. Actions ene iciar te _Preserve Trust
Estate. if Trustor fails to make any payment or to do any act
and in the manner provided in any of the Financing Documents,
Beneficiary, and Trustee, and each of thea, each in its own
discretion, without ut oblig tion so to dc, without releasing
Trustor from any obligation, and subject only to the notice and
cure provisions cf the soman Agreement,- may crake or do the same i
such manner and to such extent as either .may deem necessary t
protect the security hereof. to conneCtion therewith (without
l irni t i nc their general and rather powers, whether conferred
herein, in another Financing ocu ent or by law) , Beneficiary and
Trustee, and; each of them, each shall have and are hereby given
the right, but not the obligation: (i ) to enter aa�zaon and take
possession of the Trust. Estate, ( ii ) to make additions,
alterations, repairs and im rovempntn to the Trust Estate which
they or either of theta may reasonably consider necessary or
roper to keep the Trust Estate in good condition and repair;
( iii) to appear and participate in any, action or proceeding
affecting or which may affect the security hereof or the rights
or powers of Beneficiary y car Trustee; (iv) to pay, purchase,
1
contest or compromise any encumbrance, claim, charge,e, Lien or
debt which in the reasonable judgment of either may materially
and adversely affect or appears to materially, and adversely
affect they security of this Deed of Trust or to be prior or
superior hereto; and ( in exercising such powers , to xray
necessary expenses, including employment of counsel or other
necessary or desirable l consultants . Trustor shall, immediately
upon demand therefor by Beneficiary pay to Beneficiary an amour
equal to all ousts and expenses :incurred by it in connection ction pith
the exercise by Beneficiary of they foregoing rights, including,
without limitation, costs of idenc+ of title, court costs,
appraisals, surveys and receiver' s Trustee' s and reasonable
attorneys ' fees-, costs and expenses (including, without
limitation, the feces and expenses of attorneys for Trustee) ,
whether or not an action is actually cormuence l in connection
therewith .
Section 1.12. Transfer of` Trust Estate _ Trustor .
The financial stability anda.na erial and operational na.l: ability of
Trustor and of those persons or entities having a direct or
beneficial interest in Trustor are a substantial and material
consideration t enef. ciary in its agreement to issue they Bonds .
Trustor understands that a transfer of the Trust Estate or change
in entity operating and managing the Trus.t Estate may
significantly and materially alter and reduce Beneficiary' s
security for the repayment of any suis coving _t Beneficiary under
`
the Loan reemnt. Therefore, in order to induce Beneficiary to
issues the Bonds, Trustor aera s not to make any transfer of the
Trust Estate, other than as permitted in the Reimbursement
Agreement, without the written consent of Beneficiary. Consent
to one suchtransaction shall not be unreasonably withheld, and
shall not be deemed to be a waiver of the right to require
consent to future or successive ve transactions , Beneficiary may
grant or deny such consent in its sole discretion and, if consent
should be given, any sucu transfer stall be subject to this Deed
of Trust, and any such transferee shall assume all obligations
hereunder and agree to be bound by all provisions contained
herein. Such assumption n shall not, however, release Trustor of
any obligations under the Loan Agreement or from any liability
thereunder without the prior written consent of gond Trustee and
Beneficiary, respectively. As used herein, "transfer" includes
the sale, agreement to sell, transfer, or conveyance of the Trust
Estate, or any portion thereof or intrest therein, whether
voluntary, involuntary, by operation of lair or otherwise, or the
lease of all or substantially all. of .the Trust Estate.. Transfer
shall also include they transferor, assignment or conveyance of`
legal or beneficial ownership of the Trustor. However, any sale=
or transfer which aloes not in the aggregate result in more that
forty-nine percent of the beneficial interest in Trustor or
the Property having been sold or transferred since the Closing
Date shall not constitute a sale- or transfer of the Trust Estate
for the purposes ses f this Section .
_13
Section 1. 13. Survival, of Warranties. 'trustor shall
fully and faithfully satisfy and perform the obligations of
Truster contained in the Financing Documents, each agreement of
Truster >inc rp,)r tm d by reference therein or herein and each
agreement the parformance of which is secured hereby, and any
modification or amendment thereof. All representations,
warranties and covenants of Trustor contained :in any such
agreement between Trustor and Beneficiary shall survive the
execution and delivery h re f and shall remain ai,n continuing
obligations, warranties and representations of Trustor during any
time when any portion of the obligations secured hereby remain
outstanding.
Section 1 . 14. Condemnation and tither Awards.
Immediately upon its obtaining knowledge ledg of the .institution or
the threatened institution of any proceeding for the condemnation
or other taking for public or quasi-public use of the Trust
Estate or any part thereof, or if the same be taken or damaged by
reason of any public improvement or condemnation proceeding, or
in any other manner, or should Trustor receive any notice or
other information regarding such proceeding, action, taking or
damage,, Truster may promptly notify Trustee and Beneficiary of
such fact. Trustor shall then file or defend its right
thereunder and prosecute the same with due diligence to its final
disposition and shall: cause any award or settlements to be paid
over to Beneficiary for disposition pursuant to the terms of the
Indenture and the Reimbursement Agreement. At Beneficiary's
oration, Beneficiary or Trustor may be the nominal party in such
proceeding but in any event Beneficiary shall be entitled,
ed,
without regard to the adequacy of its security, to participate in
the same and to be .represented therein by counsel of its choice,
and Truster will, deliver, or cause to be delivered, t
Beneficiary such instruments as may be requested by it from
time to time to permit such participation. If. the Trust Estate
r any part thereof is taken or diminished in value, or if a
consent settlement is entered, by or under threat of such
proceeding, all compensation, awards, damages,es, rights of action,
proceeds and settlements payable to Trustor b virtue of :its
interest in the Trust Estate (the "Condemnation Proceeds" ) shall
e and hereby are assigned, transferred and sot over unto
'Beneficiary to be held by it, in trust, subject to the lien and:
security interest of this Deed of Trust. Any such Condemnation
Proceeds shall be first a li d .to reimburse Trustee and
Beneficiary for all costs and expenses, including reasonable
attorneys' fees, incurred: in connection with the collection of
such award or settlement. The balance of such award or
settlement shall be applied in accordance with the terms of the
Load Agreement, the Indenture; and the Reimbursement Agreement, as
applicable. Application or release of the ondemnat.ion Proceeds
as provided herein shall not cure or rare any default or notice
of default hereunder or invalidate any act dune pursuant to such
notice.
14
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Section 1. 15 . Additional Security} No other security
now existing, or hereafter taken, to secure the obligations
secured hereby nor the liability of any maker, surety, guarantor
garndorse*�r with respect oto such obligations, or any of them
shall be impaired or affected by they execution of this Deed of
Trust; and all additional, security shall be taken, considered and
held as cumulative. The taking of additional security, execution
of partial releases of the security, or any extension of the time
e
of payment of the indebtedness ss shall not diminish the force,
effect or lien of this taped of Trust and shall: not, affect or
impair the liability of any maker, surety, guarantor or endorser
for the payment of said indebtedness. In they event Benefioiary
at ,any time holds additional security for any of the obligations
secured heare by, it may enforce the sale thereof or otherwise
realize upon the: same, at its option, either before,
,
concurrently, or after a. sales is made hereunder.
Section 1. 16. Inspections. Beneficiary and its
agents, reprost--ntatives or workers are authorized upon reasonable
notice to enter at any reasonable time upon or in any part of the
Trust Estate for the purpose of inspecting the sage and for they
purposes of performing any of they acts it is authorized to perform
hereunder or under the terms of any of the Financing Documents.
Section 1. 17 . beans. Trustor shall pay and promptly
discharge when due, at Trust is cost and expense, all liens,
encumbrances s and charges upon the Trust Estate, of any part
thereof or interest therein, provided that the existence of any
mechanic's Laborer ' s rerate:rialtatan's, supplier's or vendor's lien
or right thereto shall not constitute a violation of this Section_
if payment is not yet due under the contract which is the
foundation thereof and if such contract does not postpone payment
for more than forty-fives t 5l days after they performance thereof.
Trustor shall have the .right to contest in good faith they
validity of any such lien, encumbrance or charge, provided
that within ten days of service of a stop notice or ninety days
after recording of a Mechanic's Lien, Trustor shalt deposit with
Beneficiary a bond or other security reasonably satisfactory t
Beneficiary.ry :in such amounts as Beneficiary shall reasonably
require, but neat more than the amount required to release the
lienunder California law, and provided further that Trustor
shall thereafter diligently proceed to cause= such lien,
encumbrance or charge; to be removed and discharged. if Trustor
shall fail either to remove and discharge any such lien,,
encumbrance or charge or to deposit security in accordance with
the preceding sentence, if applicable, then, in addition to any
other right or remedy of Beneficiary, Beneficiary may, but shall_
not be obligated to, discharge the same without inquiring into
:he validity of such lien, encumbrance or charge nor into the
existence of any defense or offset thereto, either by paying the
amount claimed to be dues, or by procuring the discharge' of such
lien encumbrance or charge by depositing in a court a 'mond, or
the amount or otherwise giving security for such claim, or in
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88-271223
such manner as is or may be prescribed by law. Trustor shall,
immediately upon demand therefor by Beneficiary, pay to
Beneficiary an amount equal to all casts and expenses incurred by
Beneficiary in connection with the exercise by Beneficiary of the<
foregoing right to discharge any such lien, encumbrance of
charge*
Section 1. 18, Beneficiary' s l=owers. Without affecting
the liability of any other person liable for the payment of any
obligation herein mentioned, and without affecting the lien or
charge of this Deed of Trust capon any portion of the `rust Estate
not then or theretofore released as security for the full amount
of all unpaid obligations, Beneficiary may, from ti to to time and
without notice ( i ) release, any person so liable, ( ii ) extend the
maturity or alter any of the terms of any such obligation, ( iii )
grant other indulgences, ( iv) release or reconvey, or cause to be
released or reconeyed at any time at Beneficiary's option any
parcel, portion or all of the Frust Estate. ( tale or release
any other additional security for any obligation herein
Mentioned, or (vi ) make compositions or other arrangements with
debtors in relation thereto. By accepting payment or performance
of any obligation secured by this geed of frust after the payment
or performance is due or after the filing of a notice of default
and election to sell, Beneficiary shall not have thereby waived.
its right to require prompt payment or performance, when due, of
all rather obligations secured hereby, or to declare a default for
failure so to pay or perform, or to proceed with the sale under
any notice of default and election to sell thereafter given b
Beneficiary, or with :respect to any unpaid balance of the
indebtedness secured hereby.. The acceptance by Beneficiary of
any sum in an amount less than the sum then lose shall not
constitute a waiver of the obligation of `trustor to pay the
entire sum then due. Trustor''s :failure to pay the entire sum
then due shall continue to be a default, notwithstanding the
acceptance of partial payment.., and, until the entire sum then due
shall have been paid, Beneficiary or Trustee shall_ at all times
be entitled to declare a default and to exercise all the remedies
herein conferred., and the right to proceed with a sale tinder any
notice of default and election to sell ,shall in no dray b
impaired, whether or not such amounts are received prior or
subsequent to such notice. No delay or omission of Trustee of
'Beneficiary in the exercise se cif any right or power hereunder shall:
impair such right or power or any other right or power nor shall~
the same be construed to be a waiver of any default. or any
acquiescence therein..;
Section 1. 19, Other Instruments . Tustr r shall
punctually pay all amounts due and payable, and shall promptly
and faithfully perform or observe each and every other obligation
r condition to be performed or observed, under each decd of
trust, mortgage or other lien or encumbrance, lease, sublease,
declaration, covenant, condition,, restriction, license, order or
.
other instrument or agreement which affects or appears to affect
the Trust Estate, whether at lair or in equity.
r
ARTICLE f
ASSIGNMENT Off" 'RENTS, ISSUES `IT
Section 2. 01. Assignment of Rents, Issues and Profits.
'trustor hereby assigns and transfers absolutely to Beneficiary
all of the rents of the Trust Estate (the "Rents" ) and hereby
gives to and confers upon Beneficiary the right, power and
authority to collect such Rents. Trustor irrevocably appoints<
Beneficiary its true and lawful. attorney-in-fact,in-fact., at the option
of the 8eneficiary, at any time and from time to time, to demand
receive and enforce payment, to give receipts, releases- and
satisfactions, and to sue, in its; name or in the name of Trustor
for all such Rents, and apply the same to the obligations secured
hereby. provided, however, that Trustor shall have the right to
collect such Rents (but no more than one -month in advance unless
the written approval of the Beneficiary or any succesor thereto
has ;first been obtained) and to retain and enjoy the sago, so
long as an Event of Default shall not have occurred hereunder and
be continuing. The Assignment of the Rents in this Article II is
intended to be an absolute assignment from Trustor to Beneficiary
and not merely the passing of a security interest_. The foregoing
power of attorney is coupled with an interest and cannot be
revoked,,.
Section; 2. 02. Collection Upon Default. Upon the
occurrence of an Event of Default hereunder, Beneficiary may, at
any time without: notice, either in person, by argent or by
aroc iver appointed by a court, and without regard, to the
adequacy of any security for the indebtedness hereby secured..,
enter upon and take possession of the "gust. Estate, or any pari
thereof , and, with or without taking possession of the Trust
Estate or any part thereof, in its own names sue for or otherwise
collect such Rents (including those past due and unpaid.., and all:
prepaid Rents and all other meanies which may have been or may
hereafter be deposited with Trustor by any lessee or tenant, of
Trustor to secure the payment of any rent or for any services
thereafter to be rendered by "Trustor for any other obligation of
any tenant to Trustor arising under any lease, and Trustor agrees
that, upon the occurrence of any Event of Default hereunder,
Trustor shall: promptly deliver all such Rents and other muni"ss t
Beneficiary) , and Beneficiary may apply the same, less reasonable
crests and expenses of operation and collection, including,
without limitation, a .torne sr fees subject to California Civil
Code erection 717 ) whether or 'm of suit is brought or prosecuted
to judgment., upon any indebtedness or obligation of Trustor
secured hereby, and in such order as 'Beneficiary may determine
notwithstanding that said indebtedness or the f+orfo manc of said
obligation may not then be due The collection of such Rents, or
the entering upon and taking possession of the Trust Estate, or
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b ��
the application thereof as aforesaid, shall not cure or waive
any default or notice of default hereunder r invalidate any act
done in ria-sponse to such default or pursuant to such notice of
default or be deemed r construed to make Beneficiary a
mortgagee-in-possession, of the Trust Estate or any portion
thereof.
Section 2. 03. Further Assignments . Upon demand of
Beneficiary, Trustor shall , from tzmp to time er after, execute
and deliver to Beneficiary r cordabl assignments of Trustor ' s
interest in my or all :Leases, subleases contracts, rights,
licenses and permits now or hereafter affecting the Trust Estate
or any portion thereof. Such assignments shall be dada by
instruments in form andsubstance- satisfactory to Beneficiary;
provided, however, that no such assi.gnment4, shall be construed as
imposing upon Beneficiary any obligation with respect ther8to.
default by Trustor in the performance of any covenant of any
lease or other instrument so assigned to Beneficiary, which
causes a material: dir unit.ion in the value of the Trust Estate, by
reason of which default the lessee or anther party thereunder has
the right to cancel. such ;pease or other instrument or to claim,
any diminution or offset against future Rents shall., at the
option of Beneficiary, constitute a default hereunder and under'
the 'Financing Documents, and ` n fi iary shall have all the
rights and remedies set forth herein as if such default had
occurred hereunder. Beneficiary may, at its option, exercise its
rights hereunder or under any such specific assignment, and such
exercise, shall not constitute a waiver of any right hereunder or
under such specific assignment. Absent Trusfor's default,
Truster shall_ have the right to collect all Rents.
ARTICLE III
SECURITY REEM EN'
Section 3. 01. Creation- f Security Interest. Trustor
hereby grants to Beneficiary a security inter t. it all of
Trust is estate, right, title and interest-, now owned or
hereafter acquired, in and to the property described in Exhibit
"B" attached hereto and by this reference incorporated herein
(individually and; collectively, "Personal Property") , to the
extent that such property is not real property under the laws o
the State of CaIiEornia, for the purpose of securing all
obligations of Trustor contained in the Loan Agreement.
Section 3. 02. Warranties, Representations and
Covenants of Trustor. Trusts, hereby represents and warrants to
the best of its knowledge hedge as of the date hereof and covenants as
follows:
sal Trustor maintains its principal. office in the
State of California at the address set forth in the indenture,
and Trustor will immediately notify Beneficiary in writing of any
change in .its principal place business.
(b) All covenants, obligations, waivers ,and releases
s
f Trustor contained herein relating to the Trust Estate (other
than the provisions of Section 4. 03 hereof, relating to they sale
of the Trust Estate by Trustee under they Trustee' s power of sales
shall be deemed tee apply to the Personal nal 'r perty and they rights
and obligations of Trustor and 'Beneficiary with respect thereto
whether or not expressly r fe rred to in this Articles III.
(ep) Trustor shall execute to one or more financing
statements ents a€gid renewals als and amendments eants thewr : f pursuant to the
Uniform om rcial Code f California and such other documents is as
are necessary to impose, perfect or continue the perfection of
the security interest hers in created, and will file they same and
pay the cast of filing the same in all public offices heer(-3!' ar
filing is necessary and provides Beneficiary with
(d) Subject to California Civil Code Section 4(g )
this geed of Trust constitutes a Security Agreement as that term,
is used, in they Uniform Commercial Codes of California and any
Cather state in which any of the Personal Property is located, and
Beneficiary shall have all the rights and remedies of a secured
party under they Uniform Ca r eicial Code as in affect therein from
time to time as well as all other rights and remedies available
at law or in equity.
(eExcept for the security interest granted hereby,
Trustor is, and as to portions of the Personal Property to b
acquired after the date hereof will be, the sole= owner of they
Personal Property, free from any adverse lien, security interest,
encumbrance or adverse claim thereon of any kind whatsoeverl,
other than the Second Deed of Frust. Trustor will notify
13eneficiary of, and will defend they Personal Property against,
all.l class and der ands of all persons at any time claiming they
same or any interest therein.
(f ) Trustor will.l not lease, sell, convey or in any
manner transfer the Personal Property without they prior written
consent of Beneficiary or its successor, except in they ordinary
course of business and provided any Personal l Pre 'rty so
transferred is replaced immediately with likes Personal Property
of equal. or greater value.
gl Except to the extent in transi.t, thereto after
initial acquisition by Trustor, they personal Property will be
kept on or at they Premises and Trustor will not, without they
prior written consent of Beneficiary or its successor, remove the
Personal Property therefrom except such portions or iters of
Personal Property which are consumed or worn-out in ordinary
usage, all of which shall be promptlye pl.a,ce d by Trustor.
Section 3. 03. 'Remedies Upon Default- pan the
occurrence of any Event of Default hereunder , Beneficiary shall
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o4 .
have the right to cause any of the Personal Property to be sole
at any one or more public or private sales as permitted by
applicable law, and Beneficiary shall further have all rather
rights and remedies, whether at law, in equity,, or by statute, a
are available to secured creditors under applicable law. Any such
disposition may be conducted by an employee or agent of
Beneficiary or Trustee. Any person, including bath Trustee and
Beneficiary, shall be eligible to purchase any part or alle of
such property at any such disposition unless prohibited by law
from doing so. All expenses of retaking, holding, preparing for
sale, selling or the like shall be borne by Trustor and shall
include, without limiting the generality of the foregoing,
i.,n
'Beneficiary's and Trustee's attorneys ' fees and legal expenses.
Trustor, upon demand of Beneficiary or Trustee, shall assemble
such Personal Property and make it available to Beneficiary at
such place as shall be required by Beneficiary in its sole
discretion. Beneficiary shall give Trustor at least ten ( )
days ' pricer written notice of the time and place of any public
sale or other disposition of such property or of the time of, or
after which, any private sale or any ath intended disposition
is to be made, and if such notice is sent to Trustor, as the same
is provided for the making of notices herein, it is hereby deemed
that such notice shall be and: is reasonable notice. to Trustor.
Section 3, 04. Other SecuriLj__AaKeements . Trustor may,
concurrently herewith or hereafter, e ecute and deliver to
Beneficiary a security agreement with< respect to all or part of
the Personal: Property and, at the request of Beneficiary, other
personal property. The rights and obligations of Trustor and
'Beneficiary with respect to all personal property described
therein (including, without limitation_, any of the Personal,
Property which is described therein) shall, be controlled by the
terns and provisions of such security agreement to the extant, if
any, that the provisions of Article III of this Deed of Trust are
inconsistent; therewith. To the extent not inconsistent,, the
respective rights and obligations of Trustier and Beneficiary
hereunder and under any such s curity agreement shall be
cumulative.
Section Fixture l `i iii F inancinp statement..
This geed of Trust is also a financing statement filed as a
fixture filing, covering the Personal Property described in
xhibit "B" hereto, and providing as follows:
(a ) The debtor is ` rusher;
(b) The secured party is Beneficiary;
(c) The Personal Property is attached or appurtenant
to, or arises from,, gar is located on or used in connection with,
the land described in Exhibit "A".
-20-
(d) Certain items of the Personal Property are or are
to become rxe fixtures on the Land, and this Deed of Frust is to he
recorded in the Real Estate Records of the County in which the
Land is located
ARTICLE l
REMEDIES UPON DEFAULT
Section 4 . 01. Events of Default. Any of the following
everts shall (after the expiration of any applicable grace,
,)er,iod ) e deemed a event o de. ault ( "Event Default" )
hereunder:
(a) the occurrence of an Event of Default as that tet
is defined in the Loan Agreement, any of the other Financing
D cutneent , or the Indenture
(is) default shill be made in the payments, when due, of
any sure secured hereby,- or
(c) Truster shall file a voluntary petition in
bankruptcy or shall be adjudicated a bankrupt or insolvent, or
shal). file any petition or answer seeking or acquiescing in any
reorganization, arrangement, composition, read ustment,
liquidation, dissolution or similar relieffor itself under~` any
present or future federal, state or other statute, law or
regulation relating to bankruptcy, insolvency or other relief for
debtors ; or shall seek or consent to or acquiesce in the
appointment f any trustee, receiver or Liquidator of Trustor, or
of all or any part of the Trust Estate, or of any or all of the
Rents thereof, or shall make any general assignment for the
benefit of creditors, or shall admit in writing its inability to
pay its debts generally as they become> due.;
d) A court of competent jurisdiction shall anter an
order, judgment or decree approving a petition filed against
Trustor seeking any reorganization, dissolution or similar relief
under any present or future federal, state or other statute, law
r regulation relating to bankruptcy, insolvency or other relief'
for debtors, and such order, judgment or decree shall remain.
unvacated and unstayed or an aggregate of sixty ( ) days
(whether or not naecutive) from the first date of entry
thereof or any Trustee, receiver or liquidator of Trustee, of
or of all or any part of the Trust Estate, any or all of the
rents thereof shall he appointed without the consent or
acquiescence of Trustor, and such appointment ent shall remain
unvaeated and unstayed for an aggregate of sixty ( ) days
(whether or riot corisecu.ta e) o
(e) A writ or execution or attachment or any similar
process shall he issued or levied against all or any part of, or
interest t in , the Trust Estate, or any judgment involving monetary
damages shall he entered against Trustor which shall become a
L-
'3vrs s`
i
lien on the 'guar Estate or any portion thereof or interest
therein, and such execution, attachment or similar process
judgment is not released, bonded, satisfied, vacated or stayed
within sixty t 7 days after its entry of levy.
Notwithstanding anything to the contrary in this
Section, so long as no vent of Default then exists r i
continuing under the Indenture or the Loan Agreement, then
neither an Event oafe-fault an defined in the Reimbursement
Agreement nor any actions r proceedings brought by Association
to enforce its rights or exercise its remedies under the
Reimbursement ement .gree gent, the Intercreditor Agreement, the Letter
of Credit, the Second Deed of Trust or any ether instrument
executed by Trustor in connection therewith for the benefit o
Association shall constitute an 'went of Default hereunder (even
though the same may be described as an Event of Default in this
Section) unless and until Association, shall have notified Bond
Trustee pursuant: to the Indenture.
Section 4. 02. Acceleration Upon Default; Additional
Remedies. Upon the occurrence of an Event of Default,
Beneficiary may, at its option, declare all indebtedness and
obligations secured hereby, to be immediately due and payable
without any presentment, demand, protest or notice of anykind;
and whether or not Beneficiary exercises said option, T3eneficiary
May-.
(aEither in person or by agent, with or without
bringing any action of proceeding, or by a- receiver appointed by
court and without regard to the adequacy of its security, enter
upon and tame possession of the Frust Estate, or any part
thereof, in its own name or in the name of Trustee, and do any
act which it deems necessary or desirable to preserve the value,
marketability or rentability of the Trust Estate, or part thereof
r interest therein increase the income therefrom or protects the
security hereof and, with or without taking possession of the
"rust Estate, sue for or otherwise collect the Rents including
those past due and unpaid, and apply the same, less costs and
expense of operation and collection including, without
limitation, at*'-orne s ° fees, upon any indebtedness .secured
hereby, all in such eider as Beneficiary may determine. The
entering upon and taking possession of the Trust Estate, the
collection of such Rents and the application thereof a
aforesaid, shall not cure or waive any default or notice of
default hereunder or invalidate any act done in response to such
default or pursuant to such notice of do6fault end,
notwithstanding the continuance in possession siAon b trustee,
'Beneficiaryor a receiver of all or any portion of the Frust.
Estate or the collection, receipt and application of any of the
Rents thereby, the Trustee e or Beneficiary shall be entitled t
exercise every right provided for in any of the Financing
Documents or by law upon occurrence of any Event of Default,
including the right to exercise the power- of sale;
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4
S
3
(b) Commence ars action to foreclose this Deed of Trust,
as a mortgage, appoint a receiver, or specifically enforce any of
the covenants hereof;
(c) Deliver to Trustee a written declaration f
default and demand for sale, and a written notice of default and
election to cause ' r ast is interest in the Trust Estate to be Y
sold, which Notice the Trustee or beneficiary shall cause to b
duly filed for record in the Official Records of the County is
which the Frust Estate is located
(d ) Exercise all other rights and remedies provided
herein, in any Financing Document or ether document or agreement
now or 'hereafter securing all or any portion of the obligations
secured hereby, or provided by lana,
Section 4. 03. Foreclosure bv Power of Sale.
(a ) Should Beneficiary elect to foreclose by exercise
of the power of sale herein contained, Beneficiary shall notify
Trustee and shall deposilt with Trustee this Deed of Trust, the
Nate, the Loan Agreement end such receipts and evidence of
expenditures rade and secured hereby as Trustee may require.
(b) Upon receipt of such notice from Beneficiary,
Trustee shall cause to be recorded, published and delivered t
Trustor such Notice of Default and Election tri Sell as is thea
required, by law and by this teed of Trust,. Trustee shall,
:without demand on Trustor, after lapse of such time as may there,
e required by laws and after recordation of such Notice of
Default and after Notice of tale having been given as required by
law, sell the Trust: Estate at the time and place of sale fixed by
it its said Notice of Sale, either as a whole, or in separate leets
r parcels or items, and .in such order as Beneficiary may direct
Trustee to do, at public auction to the highest bidder for cash
in lawful: money of the United States payable at the time of salt.
Trustee shall. deliver to such purchaser or purchasers thereof its
good and sufficient ~deed or deeds conveying the property so sold,
but without any covenant or warranty, express or implied.ied.. Th
recitals in such deed of any marten or fact shall be conclusive
proof of the truthfulness thereof. Any person, including,
without limitation, Trustor, Trustee or Beneficiary, may purchase
at such sale, and, Trustor hereby covenants to warrant and defend
the title of such purchaser or purchasers.
(c ) Upon ndnju .icial foreclosure of this Deed of
Trust, Beneficiary shall be entitl-ed to credit 'bid up to and
including the entire amount of the obligations and indebtedness
secured 'hereby. if Beneficiary makes a combined ned credit and: cash
bid and is the successful, bidder, Trustee shall apply the cash
bid first to pay the holders of liens subordinate hereto and
encumbering the Premises, in their respective order of ?priority,
3 -
Y
then to pay delinquent taxes, if any; and shall pay any remaining
ainung
balance nc to theTrustor; or, if such order of payment shall be
prohibited by law, then in such ether order or priority as is
required by la. . if a third party is a successful bidder at such
public auction, upon receipt of cash from such bidder, Trustee
shall apply the cash bid received from the third party, after
deducting all costs fees and expenses of en fic ary and of the
'trustee, including casts of evidence f title in connection with
the sale, ( i) first to pay all sums due and owing to Beneficiary,
with accrued interest at the Association Rate, under the
Loan Agreement, and this Deed of Trust and ( ii) the remainder, if
any to the person or persons legally entitled thereto.
(d) The 'trustee may est one sale of all or any
portion of the Trust Estate by public announcement at such time
and place of sale, and from time to time thereafter may ost; on
such sale by public announcement or subsequently noticed sale,
and without .further notice make such sale at the time fixed by
the last postponement, or may, in its discretion, give a neer
notice of sale .
(e) A sale of less than the whale of the Trust Estate
or any defective or irregular salve made here-ander 'shall not
exhaust the dower of sale provided for herein; and subsequent
sales may be made hereunder until all obligations secured hereby
have been satisfied, or the entire Trust Estate sold, without
defect or irregularity.
Section 4.04. Reinstatement. Trustor shall have the
right, to the extent provided by California law, following the
recording of the Notice of Default if the power of sale herein i
to be exercised, to pay to Beneficiary the aggregate amount
th retofor drawn under the hatter of Credit and not reimbursed by
'trustor pursuant to the Reimbursement Agreement, with interest
thereon as provided for in the Reimbursement nt .Ac reement_, together
with all other amounts advanced and expenses incurred by
Beneficiary or Trustor hereunder or under tete eimbu rse stent
Agreement, whereupon Truster shall be deemed to have cured the
default theretofore existing, and the Loan Agreement and. this
Deed of gust shall remain in force and effect as if no Notice of
Default had been filed *
Section 4 .05 . ointment of Receiver. if an gent of
Default in this Deed of Trust shall have occurred and he
continuing, Beneficiary, as a Matter of right and without notice
to Trustor or anyone claiming under 'trustor, and without regard
to the thea value of the "frust Estate or the interest of Trustor
hereby ;irrevocably consents to the appointment of a Receiver and
waives notice of any application therefor . Any such receiver ear
receivers shall have all the usual powers and duties of receivers
in like or sirdar cases: and all the powers and duties of
Beneficiary in case of entry as provided herein and shall
continue as such, and exercise all such powers until the date of
-24-
M" s.
confirmation of sale of the Trust `estate unless such receivership
p
is sooner terminated.
Section 4. 06. A plication of Funds After Default. 5
Except as otherwise herein provided, upon the occurrence of ars
Event of Default hereunder, Beneficiary may, at any time without
notice, apply any or all :.ate,' r amounts received and held b
Beneficiary to pay insurance premiums, Impositions, or either of
thea, or as rents or income of the Trust Estate, or as insurance
or condemnation proceeds, and; all other sums or announts received
by Beneficiaryfrom or on account of Trustor or the 'gust Estate,
r otherwise, upon any indebtedness or obligation of the Truster
secured hc-reb , in such manner and order as Beneficiary may
elect, notwithstanding that said indebtedness or the performance
of said obligation may not yet be due. The receipt, use or
application of any such sum or <ainount shall not be construed t
affect the maturity f any indebtedness secured by this Deed of
Trust, or any of the rights r powers of Beneficiary or 'trustee,
under the terns of the Financing Documents, or any of the
obligations of Trustor under the Financing Documents; or to cure
or waiveany default or notice of default under any of the
Financing Documents; or to invalidate any act of Trustee or
Beneficiary.,
Section 4. 07. Cost's of Enforcement. If any Event of
Default occurs, Beneficiary and Trustee, and each of there, may
employ ars attorney or attorneys to protect their rights hereunder.
Subject to California Civil Code Section 1717, Trustor promises
to pay to Beneficiary or Trustee, on demand, the fees and
expenses of such attorneys and all other costs of enforcing the
obligations secured hereby including without limitation,
recording fees, the expense of a Trustee ' s Sale Guarantee,
Trustee' s fees and expenses, recei`ver' fees and expenses, and
all other expenses of whatever kind or nature, incurred by
Beneficiary ficiary and 'trustee, and each of them, in connection with the
enforcement of the obligations secured hereby, whether or not
;such enforcement includes the filing of a lawsuit.
Section 4. 08. 'Remedies Not Exclusive. Trustee and
Beneficiary, and each of them, shall be entitled to enforce
payment and performance of any indebtedness or obligation secured
hereby and to exercise all rights and powers under this Deed of
'Prust or under any Financing Docimnent or other agreement or any
laws now or hereafter in farce, notwithstanding some or all of the
said indebtedness and obligations secured hereby may now or
hereafter be; otherwise secured, whether by guaranty, mortgage,
deed of trust, pledge, lien, assignment or otherwise. Neither
the acceptance of this Deed of Trust nor its enforcement whether'
by court action or pursuant to the power of sale or other powers
herein contained, shall prejudice or in any manner affect;
Trustee's or neficiary ,8 right to realize upon or enforce an
gather security now or hereafter held by Trustee or Beneficiary,
t being agreed that Trustee and Beneficiary, and each of them,
11 J"1 rl-1-1 1 11
i-, AW
shall be entitled to enforce this Deed of Trust and a,nv other
security now or hareafter hld by Beneficiary or Trustee in such
order and manner as they may in their absolute discretion
determine. No remedy herein conferred upon or reserved to
Trustee or Beneficiary is intended to be exclusive of any other
remedy herein or by law provided or permitted, but each shall be
cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by
statute. Every power or remedy given by any of the it
Documents to the Trustee or 'Beneficiary or to which either of
thein may be otherwise entitled may be exercised, concurrently or
independently, from time to time and as often as may be deemed
expedient by the Trustee or Beneficiary and either of them may
pursue inconsistent remedies. It is hereby acknowledged that the
obligations of Trustor under the Loan Agreement and this Deed of
Trust are nonrecourse obligations with regard to the liability, of
Trustor and no deficiency judgment may be obtained hereunder.
Section 4. 09. Request for Notice. Trustor hereby
requests that a copy of any notice of default and that a copy of
any notice of sale hereunder be mailed to it at the address set
forth in the Indenture.
ARTICLE V
MISCELLANEOUS
Section 5. 01. Amendments. This instrument cannot be
waived, changed, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom
enforcement of any waiver, change, discharge or termination is
sought. h copy of said instrument shall be sent by saidparty to
all other parties in the manner specified in Section 5. 06 her
Section 5. 02. Trustor Waiver ofRights . Trustor
waives to the extent permitted by law, (i ) the benefit of all
laws now existing or that may hereafter be enacted providing for
any appraisal before sale of any portion of the Trust Estate,
and, whether now existing or hereafter arising or created, ( ii)
all rights of redemption, valuation, appraisal, stay of
execution, notice of election to mature or declare due the whole
of the recur e, indebtedness and marshaling in the event of
foreclosure of the liens hereby created, and ( iii ) all rights and
remedies which Trustor may have or be able to assert by reason of
the laws of the (tato of California pertaining to the rights and
remedies of sureties ; but Trustor doos, not waive any rights it
may have under California Civil Code Sections 2924, 2924b or
2924c and/or Code of Civil- Procedure Sections 580a or 726.
Section 5. 03. Statement by Trustor. Trustor shall. ,
within ten (10 ) days after notice thereof from Beneficiary,
deliver to Beneficiary a written statement setting forth the
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c
amounts there unpaid and secured by this teed of Tryst and stating
whether any offset or defense exists against such amounts
Section 5. 04. Beneficiary Statements. For any
statement or accounting rquested by Trustor or any other
entitled person pursuant to any provision of applicable law, or
for any other document or instrument furnished to Trustor by
Beneficiary, Beneficiary may charge the maximum amount permitted
by law at the time of the request therefor, or if there be n
such maximum, then in accordance withBeneficiary 's reasonable
customary charges therefor or the actual cost to 'Beneficiary
therefor, whichever is greater.
Section 5. 05. ecc�n�nce Trustee. Upon written
request of Beneficiary stating that all sues and obligations
secured hereby have been paidand ful :y performed, and upon
surrender by Beneficiary of this Deed of Trust and, the Loan
Agreement to Trustee for cancellation and retention and upon
payment by Trustor of Trustee ' s fees and the costs and expenses
of executing and recording any requested reconveyance, Trustee
shall reconvey to Trustor, or to the person or persons legally
entitled thereto, without warranty, any portion of the Trust
;state then held hereunder. The recitals in any such
reconveyance of any matter or fact shall be conclusive arooi" of
the truthfulness thereof. The grantee in any such reconveyance
may ,be described as "the person or persons legally en-titled
thereto. "
Section 5. 06. Notices . Whenever Beneficiary', Trustor
r Trustee shall desire to give or serve any notice, demand
request or ether' communication with respect to this Geed of
Trust, each such notice, demand, request or other communication
shall be in writing and scall be effective only if the same is
delivered by personal service or wailed by registered or
certified mail, postage prepaid., return receipt requestd,
addressed to the address set forth in the Indenture, any such
notice by mailing shall be effective forty-eight ( 4 8 ) hours after
deposit with the U.S. Postal Service as registered or certified
mail. Any party may at any time change its address for such
notices by delivering or mailing to the other parties hereto, as
aforesaid, a notice of such change.
Section 5. 07. Acceptance toy Trustee. Trustee accepts
this Trust when this Deed of Trust, duly executed and
acknowledged, is ;made; a public record as provided by law...
Section 5. a tions.. The captions or headings at
the beginning of articles, Sections and. Subparagraphs hereof are
or the convenience of the parties, are not da, part of this Deed
of Trust, and shall not be used in construing .it,..
Section 5. 09. Invalidity of Certain Provisions. Every
provision of this Deed of Trust is intended to be severable- In
- -
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the event any tern or provision 'hereof is declared to be illegal,
invalid or unenforceable ble :fear any reason whatsoever by a court of
competent jurisdiction, such illegality, invalidity or
unenforceability shall not affect the balance of the terms and
provisions hereof, which terms and provisions shall remain
binding and enforceable. If the lien of this Deed of Frust i
invalid or unenforceable as to any part of the debt, or if the
lien is invalid or unenforceable as to any part of the frust
"state, the unsecured r partially secured portion of the debt
shall be completely paid prior to the payment of the remaining
and secured or partially secured portion of the dent, and all
payments Stade on the debt, whether voluntary or under foreclosure
r ether enforcement action or procedure, shall be considered t
have been first paid on and applied to the full 'payment of that
portion of the debt which is not secured or fully secured by the
lien of this teed of Trust.
Section 5. 10. Subrogation. To the extent that sums
s
drawn under the letter of Credit are used, either directly or
indirectly, to pay any outstanding lien, charge or prior
encumbrance against the Trust restate, including for example
indebtedness secured by this Deed of Frust, Beneficiary shall be
subrogated to any and all rights and liens held by any owner or
holder of such outstanding liens, charges and prior encumbrances,
irrespective of whether said liens, charges or encLunbrances are
released.
Section . 11a No Merger er of Lease. Upon the
foreclosure of the lien created by this deed of Frust on the
Trust Estate pursuant to the provisions hereof, any lease or
sublease then existing and ;effecting a. .l or any portion of the
Trust Estate> shall be, destroyed or terminated by application of
the lax of merger or as a matter of law or as a result of such
foreclosure unless Beneficiary or any purchaser at such
foreclosure sale shall so elect. No act by or on behalf of
Beneficiary or any such purchasc� r' shall constitute a termination
of any lease or sublease unless Beneficiary or such purchaser
shall give written notice thereto to such tenant or subtenant-.
If bath the lessor's and lessee's estate under any lease or any
portion thereof which constitutes a part of the Trust Estate
shall at any time become vested in one owner, this Deed of "frust_
and the lien created hereby shall_ not be destroyed- or terminated
by application of the doctrine of .merger unless Beneficiary shall
continue to have and enjoy all of the rights and privileges of
Beneficiary as to the separate, estates•
Section 5. 12. Governin2Law. This Deed of "frust shall
be governed by and construed in accordance with the laws of the
State of California.
Section 5. 13. Statute of Limitations. Except insofar
as noir or hereafter prohibited by law, the richt to plead, use or
assert any statute of limitations as a plea or defense or bar of
- -
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any kind, or for any purpose, to any debt, demand or obligation
secured or to be secured heresy, or to any complaint or other;
pleading or proceeding iled, instituted or maintained for the
purpose of enforcing. this Deed of Trust or any rights hereunder,
is hereby waived by Trustor.
section 5. 14. Joint and Several: blig t c�r�s
[Intentionally nally Optitted1
Section 5. 1:,5 Inter Bret tier. In this Deed of Trust
the singular shall include the plural and the masculine shall,
include the feminine and neuter and vice versa, if the context so
requires; and the word "person" shill- include corporation,
partnership or other form of association.
Section 5. 16. Trust Irrevocable; No Of set. The Trust
created hereby is irrevocable by Truster. No offset or claim
that Trustor now or may in the future have against Beneficiary
shall relieve Trustor from paying the indebtedness or performing
any other obligation contained he-rein or secured hereby.
Section 5. 1:7. Corrections .. Trustor shall, upon
request of Beneficiary, promptly correct any defect, error or
omission which may be discovered in the contents hereof or in the
execution or acknowledgement hereat , and will execute,
acknowledge and deliver such further instruments and de such
further acts as may be necessary or usmay be reasonably
requested by Beneficiary to cassis out more effectively the
purposes hereat, to subject t the lien and security interest
hereby created any of Trukstor 's properties, rights or interest
secured or intended to be secured hereby, or to perfect and
maintain such .lien and security interest.*.
Section 5. 18. Further Assurances. Trustor
Beneficiary and Trustee agree' to do or to cause to be done such
further acts and things and to execute and deliver or to cause to
e executed and delivered such additional assignments,
agreements, powers and instruments, as any of them inay :reasonably'
require or deem advisable to keep valid and effective the c3harges
and lien hereof,, to carry into effect the purposes of this deed
of Trust or to better assure and confirm unto any of them their
rights, powers and re-medies hereunder; and, upon request by
Beneficiary, shall supply evidence of fulfillment of each of the
covenants herein contained concerning which a request for such
evidence has been made.
Section 5. 19. Execution of Instruments by Trustee. At,
any time, and from time to time, without liability therefor and:
without notice, upon written request of Beneficiary and
presentation of this deed of Trust and the Financing Agreement
-2
secured hereby for endorsement, and without affecting the
personal liability of any person for payment of the indebtedness
or the performance of any other obligation secured hereby or the �
effect of this Deed of Trust upon the remainder of the Trust
Estate, Trustee may (i. ) recon ey any dart of the Trust® Estate,
( ii ) consent in writing to the making of any map or plat thereof,
(iii ) join in granting any easement thereon, or ( iv) join in any
extension agreement, agreement subordinating the lien or charge
hereof, or other agreement, or instrument relating here-to or to
the Trust Estate of any portion thereof.
Section 5. 20. Appointment of Successor Trustee.
Trustee or any successor acting hereunder may resign and
thereupon be discharged of the trusts created hereunder upon
thirty ( ) days ' written notice to Beneficiary. Regardless of
whether .such resignation occurs, Beneficiary may, from time t
time, substitute a successor or successors to any Trustee named
herein or acting hereunder in accordance with any statutory
procedure .for such substitution; or if Beneficiary, in its sale
discretion, so elects, Beneficiary may substitute such successor
or successors by recording in the office of the recorder of the
county or counties where the Land is situated, an instrument
executed by Beneficiary, and containing the name of the original
Trustor, the Trustee and Beneficiary hereunder,rder, the book and page
where this Deed of Frust is recorded and the name and address of
the ;new Trustee, which instrument shall be conclusive proof' of
proper substitution of such successor Trustee or Trustees; who
shall, without conveyance from the predecessor Trustee, succeed
to all its title, estate,: rights, powers and duties hereeund r.
Section 5. 21. Successors and Assigns . This Deed of
Trust applies to, inures to the benefit of, an binds all parties
hereto their heirs, legatees, devisees, administrators,
executors, successors and assigns.
Section 5. 22. Toxic a: to 3_ Truster represents to
Beneficiary that there are no toxic wastes or other toxic or
hazardous :substances- or materials being stored or otherwise held
on, ander or about the Property, by Trustor or any of its tenants
or any other person or entity, and Trustor shall at no time
permit the sauce, In the event that any such wastes, substances
or materials are hereafter found on, under or about the Property,
"trustor shall take all necessary and appropriate actions and shall
spend all necessary slurs to cause the pare to be cleaned up and
immediately removed, and Beneficiary shall in no event be liable
or responsible for any coasts or expenses incurred in so doing..
Trustor shall; at all times observe and satisfy the requirements
of and maintain the Property in compliance with all federal,
stage and local environmental protection, occupational , health
and safety or similar laws, ordinances, restrictions, licenses,
and reglilations, incuding but not limited to the Federal Water
Pollution Control pct ( 33 U. S.0 51251 et seq.) , Resource
Conservation & Recovery pct (42 U. S.C.. §6901 et seq.), Safe
-30-
,Si-2712" 4
Drinking Water pct ( 42 U. S.C. §3000 (f ) et seq. ) , Toxic Substances
Control Act i15 U. S.C. 601 et seq. ) , the Clean Air Act 4 ;
U. S.C. §7401 et seq.), Comprehensive Environmental, Response of
Compensation a.n , Liability Act ( 42 U.S.C.
seq.) , California Health & Safety Cade (§25100 est. sec)'. , 539000
et seq.) , and California Water Cede t§)301)0 et- seed. D -. Should
Trustor at any time default in or fail to perform or observe any
of its obligations under this Paragraph 5. 22, 'Beneficiary shall:.
have the right, but not the duty, without limitation upon any of
Beneficiary 's rights pursuant thereto, to perform the same, and
Truster agrees to pay tea Beneficiary, on demand, all costs and
expenses incurred by Beneficiary ry in connection therewith-,
including without limitation all attorneys' fees, together with
interest forum the date of expenditure at the interest rate then
in effect under the Note. Turste r herebyindemnifies Beneficiary
and agrees to held beneficiary harmless s for any lass incurred by
or liability imposed sed ern 'Beneficiary by reason of Trustor 's
failure to perform or observe any of its obligations or
agreements under this Paragraph 5.22.. The obligations and
indebtedness of Trustor under this ;Paragraph 5. 22,
notwithstanding anything contained herein or in any ether
document or agreement which may onst rued to the contrary, (a )
shall be deemed to he an unsecured obligation of Truster and
shall not he secured by this Deed of Trust, (b) shall not he
subject to California Code of Civil Procedure Sections 580a,
580d, 726 or any other antidefi.-iency laws, and tc° l shall survive
the foreclosure of this Deed of Trust and the repayment of the
Note and other indebtedness secured by this teed of Trust.
Section 5. 23. Priority. This Deed of Frust, -i
intended to have and retain priority over all gather liens and
encumbrances upon the Trust Estate, excepting only (i ) such
impositions as, at the date hereof, have, or by law gain,
priority over the lien created hereby; ( ii ) covenants,
conditions, restrictions, easements, and rights of way Which are
of record or are disclosed of record and which- affect the Trust
Estate on the date hereof ; and ( iii ) the Regulatory Agreement,.
Under no circumstances shales l Beneficiary he obligated or required
to subordinate the lien hereof to any Tease, lien, encumbrance,
covenant or other matter affecting the Trust Estate or any
portion thereof'. Beneficiary may, however, atBeneficiary's
option, ra ercisab;le in its sole and absolute discretion,
subordi.nate the lien of this teed of gust, in whole or in part,
to any or all... Leases, liens, encumbrances, or other matters
affecting all or any portion of the Trust Estate by executing and
recording in the Office of the County Recorder of the County and
State in which the Land is located, a unilateral. declaration of
such subordination s a cifyinc the Lease, lien encumbrance or
ether matter` or at~ters to which this Deed of Trust shall
there%after to subordinate. Nothing contained herein shall
prevent or prohibit the recording of liens junior to the lien of
this Deed of Trust.
1
IN WITNESS WHEREOF, Trustor has cawed this Deed of;
Trust tea be executed .its duly authorized representatives
I
MASKAN DEVELOPMENT COMPANY
CALIFORNIA LIMITED PARTNERSHIP
O M ,
General Partner
MOHAMMED H. SHASHANI,
Gene `_". _,..
88-271223
ACKNOWLEDGEMENT
STATE OF CALIFORNIAss
}
COUNTY OF RIVERSIDE
on this 17th day of August 1988 , before me ,
a Notary Public duly commissioned., qua,lif ed a'nd acting within
and for the State and. County aforesaid., personally appeared
HOOMAN Y. SHARIF, personally known to me (car proved to ane on the
basis of satisfactory eviden e9 to be one of the general partners
of the partnership that executed the within instrument and
acknowledged to rye that such partnership executed the same .;
IN TESTIMONY WHEREOP, I have hereunto set my hand and
official seal this 17th day of August � 1988 .
OFFWUL SOL
Notary P lis
to
ACKNOWLEDGEMENT
STATE OF CALIFORNIA }
ss
COUNTY OFF RIVERSIDE }
On this 17th day of August 1988 , before me,,
a Notary Public- duly—commissioned , qualified a:nd acting within
and for the State and County aforesaid, personally appeared
MOHAMMED H. SHASHANI, personally known to me ( or proved to me on
the basis of satisfactory evidence ) to be one of the general
partners of the partnership that executed the within instrument
and acknowledged to me that ,such partnership executed the same
IN TESTIMONY WHEREOF, I haus hereunto set my hand; and
official seal this 17th day of August 1988 .
Notary tublic
( SEAL)
My Coo scion expires : 0--1-88
iF 4iYN CORSELLi
r #r,tra
t �s , , lalcarorn
8 my .E i . t
.
MY 046 Oct 1.19" "`
}
k
t
`t
EXHTSTT "A"
That certain real property ad in the County
San Biernardino, Ta refollows:
Parcel 3 of Parcel Map No. 9105, i
the City of Bedlams , County of San
Bernardino,, State of California, as per
recorded n Book , Pages and off; x
Parcel: Maps, in the + c e of the County
Recorder said cu t ' .
-34-
71 )
EXHIBIT "B"
DESCRIPTION Off' THE PERSONAL PROPERTY
l,. All rents, issues, profits, ,royalties, incom and
other benefits derived from the Land or any and all buildings,
landscaping and gather impar vem nts now or hereafter erected
thereon including, without limitation, the fixtures, ,attachments,
a plicances, equipment, Machinery, and other articles attached to
said buildings and improvements {collectively, the
Improvements" ) ( the Land together with the improvements b i<n;
referred -to herein, collectively, as the " r rais s" )
. All right, title and interest of Trustor in and t
all leases or subleases affecting the Premises or any portion
thereof or interest therein now or hereafter existing or entered.
into and all right, title and interest of Trustor thereunder
including, without limitation, all cash or security deposits,
advance rentals,, prepared rents, and deposits f a similar
nature;
3. All the estate, interest,interest;, right, title, etherclaim
or do-man , both in lair and in equity, including claims or demands
with respect to the proceeds of insurance in effect with respect
thereto, which trustor now has or may hereafter acquire in the
Premises, and any and all awards made for the taking by eminent
domain, or by any proceeding or purchase in lieu thereof, of the
whole of any part; of the Premises including, without limiation,
any aware resulting from a change of grade of streets and any
award for severance damages;
. All personal property in which Trustor now oris or
hereafter acquires ars interest or right and which is attached or
affixed to the Dred or the Improvements or used or useful in
connection with the construction, renovation, operation, use,
leasing, maintenance or occupancy of the Tm ro eme ts, whether
:stored at the Premises or elsewhere, including, without
limitation, all goads, supplies, ui.ment- furniture,
urnihsings, fixtures,s, m hin ry, inventory and construction
materials;
5. All fees, income, rents, issues, profits, earnings,
receipts, rayalties and revenues which accrue from the items
described in 'laiiscr 4 hereof car which may be received or
receivable by Trustor from any hiring, using, lotting, leasing
subhirin , subletting, or subleasing therefor;
. All .of Trustor 's present and future rights to
receive payments of money, services or property with respect to
or in connection with the Premises and: the financing thereof,
whether or not related t the sale and bean of the proceeds of
the Bonds (defined in Clause 13t , including, without limitation,
_35
rights to all deposits from tenants of the Premises, accounts
receivable, deposit accounts, chattel paper, notes, drafts,
securities, certificates of deposit, contract rights ( including
rights ender all contracts relating to the construction,
renovation or restoration of any of the Improvements car the
financing there of and all rights gander payment or performance
bonds, warranties, and guaranties ) , books of account,
instruments, general intangibles and principal, interest and
payments due an account of goods sold, services rendered, loans
grade or credit extended, together with all. of " rustor's right,
title and interest in all documents ments evidencing, securing or
guarantying the same;
7. All: other intangible property and rights relating
to the Premises or the operation thereof, or used in connection
therewith, including but not limited to all governmental permits
relating to construction or other activities on the Premises, all
nares under or by which the Premises may at anis time be, operated
r known, all rights to carry on business under any such name, or
any 'variant thereof, all trade nates and trademarks s relating in
any way to the Premises (provided, however, that Beneficiary may
use such names only in connection with the Premises ) , good will
in any way relating to the Premises, and all licenses and permits
relating in any way to the Premises or its use, construction,
occupancy, leasing, sale or operation;
S. All proceeds from the sale or disposition of any of
the aforesaid Personal Property
. Trustar's rights under all insurance polioies
covering the Premises of any of the aforesaid Personal Property;
and :all proceeds, lass payments and premium refunds payable
regarding the same;
10. All sager stock relating to the 'Premises;
11. All causes of action, claims, compensation, and
recoveries for any damage to or condemnation or taking ng oaf the
premises or the aforesaid Personal Property, or for any
conveyance in lieu thereof, whether direct or consequential, or
for any damage e gar injury two the Premises or the aforesaid
Personal Property.
12, All craps, plan, specifications, surveys, studies,
reports, data and drawings and all contracts and agreements of
Trustor relating 'thereto including, without limitation,
architectural, structural , mechanical and engineering plans and
specifications, studies, data and drawings prepared for or
relating to the development of the Land cor the construction
renovation or restoration of any of the Improvements or the
extraction of minerals, sand, gravel or other valuable substances
from the Land; and..
-36-
,.
r
1 . All of 'ria tar' present and future rights in and
to the i3roceeds of the sale of those certain $8, 000, 000 City of
Redlands, California VariableRate Demand Multifamily Housing
Revenue Bonds, 1988 Series A and 1988 Series B (Orange ill
Apartments Project) (collectively the "Bonds" ) issued by the City
of Redlands, C-alifornia, a general lair city and a public
corporation ( "Issuer" ) under that certain Indenture 'gust
dated as of July 1, 1988 by and between Issuer and Seattle-Firs
National Bank as Trustee ( "Bond Trustee" ) , and any ether funds or
amounts now or hereafter deposited with Bond Trustee or Redlands
Federal Savings and ,Loan Association "A i ti n" ) whether
want to that certain Dean Origination and Servicing Agreement
dated as of July 1, 1988 by and between Association and Trustor,
together with all earnings on such proceeds, funds and amounts,
and all: investments made with the sane, including , without
limitation, deposit conte, chattel paper, rotes, checks,
drafts , urit.ies , certificates of deposit d instruments .
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