HomeMy WebLinkAboutD-2178 Broad St Place - Construction & Permanent Deed of Trust with Assignments - Lease, Rent, Security Agreement, Fixture FilingRECORDING REQUESTED BY:
First American Title Company
WHEN RECORDED MAIL DOCUMENT TO:
David Wright Tremaine LLP
865 S. Figueroa #2400
Los Angeles, CA 90017
Attn: Nancy B. Clapp, Esq.
A.P.N.: 053-231-048
Property Address: 3720 Broad Street, San Luis Obispo, CA 93401
"This document was electronically submitted
to San Luis Obispo County for recording"
2021018391
Tommy Gong
San Luis Obispo - County Clerk -Recorder
03/10/2021 02:12 PM
Recorded at the request of:
FIRST AMERICAN TITLE COMPANY
Titles:4 Pages:35
Fees: $158.00
Taxes: $0.00
Total: $158.00
Above This Line for Recorder's Use Only
File No.: 4009-6127807 (LB)
CONSTRUCTION AND PERMANENT DEED OF TRUST WITH ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
Title of Document
The undersigned declares that the document to which this page is affixed and made a part of is exempt from the
fee imposed by the Affordable Housing & Job Act (SB2) (GC 27388.1)
(XXX ) Recorded [concurrently] in connection with a transfer of real property subject to the imposition of
Documentary Transfer Tax per GC 27388.1 (a) (2).
( ) Recorded [concurrently] in connection with a transfer of real property that is residential dwelling to an owner -
occupier per GC 27388.1 (a) (2).
() Maximum fee of $225 has been reached per GC 27388.1 (a) (1).
() Not related to real property GC 27388.1 (a) (1).
D-2178
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Davis Wright Tremaine LLP
865 South Figueroa Street
Suite 2400
Los Angeles, California 90017
Attention: Nancy B. Clapp, Esq.
APN No. 053-231-048
Space Above For Recorder's Use
CONSTRUCTION AND PERMANENT DEED OF TRUST,
with Assignment of Leases and Rents, Security Agreement, and Fixture Filing
THIS DEED OF TRUST SERVES AS A FIXTURE FILING UNDER THE CALIFORNIA UNIFORM
COMMERCIAL CODE.
TRUSTOR'S ORGANIZATIONAL IDENTIFICATION NUMBER IS: 202012600015.
THIS DEED OF TRUST SECURES ALL PRESENT AND FUTURE LOAN
DISBURSEMENTS MADE IN ACCORDANCE WITH THE TERMS OF THE
PROMISSORY NOTE AND THE LOAN AGREEMENT BETWEEN TRUSTOR AND
BENEFICIARY. THIS DEED OF TRUST MAY SECURE A REVOLVING LINE OF
CREDIT AND SECURES ALL ADVANCES AND RE -ADVANCES THEREUNDER.
THIS DEED OF TRUST SECURES A VARIABLE RATE PROMISSORY NOTE WHICH
VARIES ACCORDING TO CHANGES IN CERTAIN CONTRACT RATES OF INTEREST
IN ACCORDANCE WITH THE TERMS OF THE PROMISSORY NOTE AND THE LOAN
AGREEMENT BETWEEN TRUSTOR AND BENEFICIARY.
The parties to this Construction and Permanent Deed of Trust, with Assignment of Leases and
Rents, Security Agreement, and Fixture Filing (this "Deed of Trust") dated as of March 4, 2021, are
BROAD STREET PLACE, L.P., a California limited partnership, as trustor (the "Trustor"), PRLAP, INC.,
a North Carolina corporation, as trustee (the "Trustee"), and BANK OF AMERICA, N.A., a national
banking association, its successors, transferees and assigns, as beneficiary and secured party
(collectively, the "Beneficiary"). The mailing addresses of the parties are set forth on the signature
page(s) below.
This Deed of Trust secures, among other things, repayment of a loan (the "Loan") described in
Section 1.2(a) below, which Loan is made pursuant to that certain Construction and Permanent Loan
Agreement, entered into by Trustor and Beneficiary (the "Loan Agreement") dated as of the date hereof.
This Deed of Trust and the Loan Agreement, together with all of their exhibits, and all other documents
which evidence, secure, or otherwise pertain to the Loan, collectively constitute the "Loan Documents".
Capitalized terms used above and elsewhere in this Deed of Trust without definition have the meanings
given them in the Loan Agreement. All terms not defined herein or in the Loan Agreement shall have the
meaning given them in the Uniform Commercial Code, as enacted in the State of California, or under the
Uniform Commercial Code in any other state to the extent the same is applicable law (collectively, as
amended, recodified, and in effect from time to time, the "UCC"). If a term is defined differently in Article 9
of the UCC than in another Article, Article 9 shall control.
If Trustor satisfies the "Conditions to Conversion" in that certain Loan Purchase Agreement of
even date herewith ("Loan Purchase Agreement") by and among Trustor, Beneficiary, and California
Community Reinvestment Corporation ("Permanent Lender"), Permanent Lender will purchase the Loan,
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and the Loan will convert to a term loan on the Conversion Date (as defined in the Loan Purchase
Agreement). Upon any such sale to Permanent Lender, Beneficiary shall, concurrent with the Conversion
Date, assign its right, title and interest in this Deed of Trust and certain other Loan Documents to
Permanent Lender.
1. Grant in Trust and Secured Obliaations
1.1 Grant in Trust. In consideration and for the purpose of securing payment and
performance of the Secured Obligations (as defined below), in such order of priority as Beneficiary may
determine in its sole and absolute discretion, Trustor hereby irrevocably and unconditionally grants,
bargains, conveys, sells, transfers, and assigns to Trustee, in trust for the benefit of Beneficiary, with
power of sale and right of entry and possession, all estate, right, title, and interest which Trustor now has
or may later acquire in and to the following property (all or any part of such property, or any interest in all
or any part of it, as the context may require, the "Property"):
(a) That certain real property located in the City of San Luis Obispo, County of San
Luis Obispo, California, as more fully described in Exhibit A attached hereto and made a part hereof,
together with all rights, privileges, easements, appurtenances, tenements, hereditaments, rights of way,
appendages, projections, water rights including riparian and littoral rights and whether or not appurtenant,
streets, ways, alleys, and strips and gores of land, now or hereafter in any way belonging, adjoining,
crossing or pertaining to such real property (the "Land"); together with
(b) All buildings, structures and improvements now located or later to be constructed
on the Land (the "Improvements"); together with
(c) All articles of personal property (including those specified below) and any
software imbedded therein, now owned or hereafter acquired by Trustor and attached to, placed upon for
an indefinite term, or used in connection with the Land and/or Improvements, together with all goods and
other property that are, or at any time become, so related to the Property that an interest in them arises
under real estate law, or they are otherwise a "fixture" under applicable law (each a "Fixture", and
collectively, "Fixtures"), but excluding Movable Personal Property (as hereinafter defined); together with
(d) All existing and future appurtenances, privileges, rights, easements, franchises
and tenements of the Land, including, all minerals, oil, gas, other hydrocarbons and associated
substances, sulphur, nitrogen, carbon dioxide, helium and any other commercially valuable substances
which may be in, under or produced from any part of the Land, and all products processed or obtained
therefrom, and the proceeds thereof, and all development rights and credits, air rights, water, water
courses, water rights (whether riparian, appropriative or otherwise, and whether or not appurtenant) and
water stock, easements, rights -of -way, gores or strips of land, and any land lying in the streets, ways,
alleys, passages, roads or avenues, open or proposed, in front of or adjoining the Land and
Improvements; together with
(e) All existing and future leases, subleases, subtenancies, licenses, occupancy
agreements, concessions, and other agreements of any kind relating to the use or occupancy of all or any
portion of the Property, whether now in effect or entered into in the future (each, a "Lease", and
collectively, the "Leases") relating to the use and enjoyment of all or any part of the Land and
Improvements, all amendments, extensions, renewals, or modifications thereof (subject to Beneficiary's
right to approve same pursuant to the terms of the Loan Documents), and any and all guaranties of, and
security for, lessees' performance under any and all Leases, and all other agreements relating to or made
in connection with any of such Leases; together with
(f) All rents (and payments in lieu of rents), royalties, issues, profits, income,
proceeds, payments, and revenues of or from the Property, and/or at any time payable under any and all
Leases, including all rent loss insurance proceeds, prepaid rents and any and all security deposits
received or to be received by Trustor pursuant to any and all Leases, and all rights and benefits accrued,
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or to accrue, to Trustor under any and all Leases (some or all collectively, as the context may require,
"Rents"); together with
(g) All real property and improvements on it, and all appurtenances and other
property and interests of any kind or character, whether described in Exhibit A or not, which may be
reasonably necessary or desirable to promote the present and any reasonable future beneficial use and
enjoyment of the Land and Improvements; together with
(h) All rights to the name, signs, trade names, trademarks, trademark applications,
service marks, licenses, software, and symbols used in connection with the Land and Improvements;
together with
(i) All goods, materials, supplies, chattels, furniture, fixtures, machinery, apparatus,
fittings, equipment, and articles of personal property of every kind and nature whatsoever, including
consumable goods, now or hereafter located in or upon the Property or any part thereof, or to be attached
to or placed in or on, or used or useable in connection with any present or future use, enjoyment,
occupancy or operation of all or any part of the Land and Improvements, whether stored on the Land or
elsewhere, including by way of description but without limiting the generality of the foregoing, all computer
systems, telephone and telecommunication systems, televisions and television systems, pumps or
pumping plants, tanks, motors, conduits, engines, pipes, ditches and flumes, and also all gas and
electrical apparatus (including, but not limited to, all electrical transformers, switches, switch boxes, and
equipment boxes), cooking, heating, cooling, air conditioning, sprinkler equipment, lighting, power
equipment, ventilation, incineration, refrigeration and plumbing apparatus, fixtures and equipment,
screens, storm doors and windows, stoves, wall beds, refrigerators, attached cabinets, partitions, ovens,
ranges, disposals, dishwashers, carpeting, plants and shrubbery, ground maintenance equipment, ducts
and compressors; together with all building materials, goods and personal property on or off the Property
intended to be affixed to or incorporated in the Property but not yet affixed to or incorporated in the
Property, all which shall be considered to the fullest extent of the law to be real property for purposes of
this Deed of Trust; together with
Q) All building materials, equipment, work in process or other personal property of
any kind, whether stored on the Land or elsewhere, which have been or later will be acquired for the
purpose of being delivered to, incorporated into or installed in or about the Land or Improvements;
together with
(k) All deposit accounts of Trustor and all right, title and interest of Trustor in the
accounts held by Beneficiary under the Loan Agreement, and all rights of Trustor in and to such deposit
accounts and Beneficiary's accounts and all money from time to time held in such deposit accounts and
Beneficiary's accounts, including but not limited to, the Loan funds, whether disbursed or not, the Account
(if any), the Replacement Reserve Account (if any), the Operating Reserve Account (if any); together with
(1) All deposit accounts of Trustor and all right, title and interest of Trustor in the
accounts held by Bank of America, N.A. or an affiliate thereof under the Loan Documents, and all rights of
Trustor in and to such deposit accounts and all money from time to time held in such deposit accounts,
including but not limited to, the Borrower's Funds Account established pursuant to the Loan Documents
and as maintained by Bank of America, N.A. or an affiliate; together with
(m) To the extent not expressly prohibited by law, all federal, state, and local tax
credits, and other tax benefits related to the Property; together with
(n) All rights to the payment of money and all guaranties thereof and judgments
therefor, and all accounts, accounts receivable, reserves, deferred payments, refunds of real property and
personal property taxes and other refunds, cost savings, payments and deposits, whether now or later to
be received from third parties (including all earnest money sales deposits) or deposited by Trustor with
third parties (including all utility deposits), warranty rights, contract rights, management contracts, service
contracts, construction and architectural contracts, contracts for the purchase and sale of the Property or
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any part thereof, end -loan or other financing commitments, development and use rights, governmental
permits and licenses, applications, architectural and engineering plans, specifications and drawings, as -
built drawings, chattel paper, instruments, documents, promissory notes, drafts, letters of credit (other
than letters of credit in favor of Beneficiary), letter of credit rights, supporting obligations, and general
intangibles, including payment intangibles, whether any of the foregoing are tangible or electronic, which
arise from or relate to construction on the Land or to any business now or later to be conducted on it, or to
the Land and Improvements generally, but excluding Movable Personal Property; together with
(o) All insurance policies (and the unearned premiums therefor) and bonds required
by the Loan Documents and all proceeds thereof, and all proceeds (including all claims to and demands
for them) of the voluntary or involuntary conversion of any of the Land, the Improvements, or the other
property described above into cash or liquidated claims, including proceeds of all present and future fire,
hazard or casualty insurance policies and all condemnation awards or payments now or later to be made
by any public body or decree by any court of competent jurisdiction for any taking or in connection with
any condemnation or eminent domain proceeding, and all causes of action and their proceeds for any
damage or injury to, or defect in, the Land, the Improvements, or the other property described above or
any part of them, or breach of warranty in connection with the construction of the Improvements, including
causes of action arising in tort, contract, fraud, misrepresentation, or concealment of a material fact, but
excluding Movable Personal Property; together with
(p) All books, records, and all recorded data of any kind or nature (regardless of the
medium of recording) pertaining to any and all of the property described above, including records relating
to tenants under any leases, and the qualification of such tenants, and all certificates, vouchers, and other
documents in any way related thereto, and all records relating to the application and allocation of any
federal, state, and local tax credits or benefits, including computer -readable memory and any computer
hardware or software necessary to access and process such memory (collectively, the "Books and
Records"); together with
(q) All commercial tort claims Trustor now has or hereafter acquires relating to any of
the property described above; together with
(r) All right, title and interest of Trustor in, to and under any and all casualty and
liability insurance policies from time to time maintained by Trustor with respect to the Property or the
Improvements, fixtures and personal property thereon or the operations of Trustor or others with respect
thereto, irrespective of whether such policies are required to be obtained or maintained in force pursuant
to this Deed of Trust or the other Loan Documents (as that term is defined in the Loan Agreement),
including without limitation the right to assert, prosecute and settle claims under such policies, the right to
receive payments of proceeds of such policies and all proceeds, accounts, deposit and payments
received at any time in respect of such insurance policies; together with
(S) All software embedded within or used in connection with any of the property
described above; together with
(t) All products, accounts, and proceeds (cash or non -cash) of, additions,
betterments, extensions, accessions and accretions to, substitutions, renewals and replacements for, and
changes in any of the property described above, including all proceeds of any voluntary or involuntary
disposition or claim respecting any such property (arising out of any judgment, condemnation or award, or
otherwise arising) and all supporting obligations ancillary to or arising in connection therewith, general
intangibles (including payment intangibles) arising in connection therewith, and all goods, accounts,
instruments, documents, promissory notes, chattel paper, deposit accounts, supporting obligations, and
general intangibles (including payment intangibles) (whether any of the foregoing are tangible or
electronic), wherever located, acquired with cash proceeds of any of the foregoing or its proceeds.
As used herein, "Movable Personal Property" means any item of tangible personal property owned by
Trustor that is not a fixture or otherwise affixed or to become affixed to the Land. By way of example but
not in limitation, Movable Personal Property would include desks, chairs and other furniture, curtains,
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portable dishwashers and portable microwave ovens, clothes washers and dryers and other portable
equipment, and inventory. Capitalized terms used above and elsewhere in this Deed of Trust without
definition have the meanings given to them in the Loan Agreement. Trustor shall and will warrant and
forever defend the above -bargained Property in the quiet and peaceable possession of Trustee, its
successors and assigns, against all and every person or persons lawfully claiming or to claim the whole
or any part thereof. Trustor agrees that any greater title to the Property hereafter acquired by Trustor
during the term hereof shall be subject hereto.
1.2 Secured Obligations.
(a) Trustor makes the grant, bargain, conveyance, sale, transfer, and assignment set
forth above and grants the security interest set forth in Section 3 below for the purpose of securing the
following obligations (the "Secured Obligations") in such order of priority as Beneficiary may determine:
(i) Payment of all obligations at any time owing under a promissory note
(the "Note") dated as of even date herewith, payable by Trustor as maker to the order of
Beneficiary in the stated principal amount of Sixteen Million Four Hundred Ninety Thousand and
No/100th Dollars ($16,490,000) to the order of Beneficiary, including principal, interest and all
other amounts payable under the terms of the Note and performance of each covenant and
agreement of Trustor in the Note and all modifications, amendments, replacements, extensions
and renewals thereof and substitution therefore; and
(ii) Payment and performance of all obligations of Trustor under this Deed of
Trust; and
(iii) Payment and performance of all obligations of Trustor under the Loan
Agreement, under any Loan Documents, and under the Rate Lock Agreement (if any, as such
term may be defined in the Loan Agreement) or any rate lock agreement or interest rate
protection agreement (such as any interest rate swap agreement, International Swaps and
Derivatives Association, Inc. Master Agreement, or similar agreement or arrangements now
existing or hereafter entered into by Trustor and Beneficiary in connection with the Loan
evidenced by the Note to hedge the risk of variable rate interest volatility or fluctuations in interest
rates as any such agreement or arrangement may be modified, supplemented and in effect from
time to time) executed by Trustor in connection with the Loan; provided, however, that this Deed
of Trust does not secure any Loan Document or other document, or any provision of any Loan
Document or other document, that is expressly stated to be unsecured; and
(iv) Payment and performance of all future advances and other obligations that
Trustor, or any successor in interest to Trustor, and/or any other obligor (if different than Trustor),
or any successor in ownership of all or part of the Property, may agree to pay and/or perform
(whether as principal, surety, or guarantor) for the benefit of Beneficiary, when a writing
evidences the parties' agreement that the advance or obligation be secured by this Deed of Trust;
and
(v) Payment and performance of all modifications, amendments, extensions,
and renewals, however evidenced, of any of the Secured Obligations, including any successor
agreements or instruments which restate and supersede any agreements or instruments
evidencing the Secured Obligations; and
(vi) Payment of all sums advanced by Beneficiary to protect the security of this
Deed of Trust or the Property, with interest at the Default Rate as defined in the Note.
(b) All persons who may have or acquire an interest in all or any part of the Property
will be considered to have notice of, and will be bound by, the terms of the Secured Obligations and each
other agreement or instrument made or entered into in connection with each of the Secured Obligations.
Such terms include any provisions in the Note or the Loan Agreement which permit borrowing,
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repayment, and reborrowing, or which provide that the interest rate on one or more of the Secured
Obligations may vary from time to time.
2. Assignment of Lessor's Interest in Leases and Assignment of Rents.
2.1 Absolute Assignment. Effective upon the recordation of this Deed of Trust, Trustor
hereby irrevocably, absolutely, presently, and unconditionally assigns, transfers, and sets over to
Beneficiary:
(a) All of Trustor's right, title, and interest in, to, and under any and all Leases, all
amendments, extensions, renewals, or modifications thereof (subject to Beneficiary's right to approve
same pursuant to the terms of the Loan Documents), and any and all guaranties of, and security for,
lessees' performance under any and all Leases, and all other agreements relating to or made in
connection with any of such Leases; and
(b) All Rents. In the event that anyone establishes and exercises any right to
develop, bore for, or mine for any water, gas, oil, or mineral on or under the surface of the Property, any
sums that may become due and payable to Trustor as bonus or royalty payments, and any damages or
other compensation payable to Trustor in connection with the exercise of any such rights, shall also be
considered Rents assigned under this Section.
THIS IS AN ABSOLUTE ASSIGNMENT, NOT AN ASSIGNMENT FOR SECURITY ONLY.
2.2 Grant of License. Beneficiary hereby confers upon Trustor a license (the "License") to
collect and retain the Rents as they become due and payable, so long as no Event of Default (as such
term is defined below) shall exist. Upon the occurrence of an Event of Default, Beneficiary shall have the
right, which it may choose to exercise in its sole and absolute discretion to terminate this License without
notice or demand upon Trustor and without regard to the adequacy of Beneficiary's security under this
Deed of Trust).
2.3 Collection and Application of Rents and Enforcement of Leases. Subject to the
License granted to Trustor above and the other provisions of this Section, Beneficiary has the right,
power, and authority to collect any and all Rents and enforce the provisions of any Lease. In connection
with the provisions of this Section, Trustor hereby constitutes and irrevocably appoints Beneficiary its
attorney -in -fact, with full power of substitution, to perform any and all of the following acts, if and at the
times when Beneficiary in its sole and absolute discretion may so choose:
(a) Demand, receive, and enforce payment of any and all Rents, and endorse all
checks and other payment instruments related thereto;
(b) Give receipts, releases, and satisfactions for any and all Rents;
(c) Sue either in the name of Trustor or in the name of Beneficiary for any and all
Rents;
(d) Enforce the provisions of any and all Leases;
(e) Enter into Leases; and/or
(f) Perform and discharge any and all undertakings of Trustor or otherwise under
any Lease
The appointment granted in this Section 2.3 shall be deemed to be a power coupled with an
interest. Beneficiary's right to the Rents, or to enforce the provisions of any Lease, does not depend on
whether or not Beneficiary takes possession of the Property as permitted under Section 7.2(c) below. In
Beneficiary's sole and absolute discretion, Beneficiary may choose to collect Rents or enforce any and all
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Leases either with or without taking possession of the Property. Beneficiary shall apply all Rents
collected by it in the manner provided under Section 7.6 below. If an Event of Default (as such term is
defined in Section 7.1 below) occurs while Beneficiary is in possession of all or part of the Property and
is collecting and applying Rents as permitted under this Deed of Trust, Beneficiary, Trustee and any
receiver shall nevertheless be entitled to exercise and invoke every right and remedy afforded any of
them under this Deed of Trust and at law or in equity, including the right to exercise the power of sale
granted under this Deed of Trust.
2.4 Notice. All lessees under any and all Leases are hereby irrevocably authorized and
notified by Trustor to rely upon and to comply with (and will be fully protected in so doing) any notice or
demand by Beneficiary for the payment to Beneficiary of any rental or other sums which may at any time
become due under the Leases, or for the performance of any of lessees' undertakings under the Leases,
and lessees have no right or duty to inquire whether any Event of Default has actually occurred or is then
existing hereunder or to obtain Trustor's consent.
2.5 Proceeds. Beneficiary has the right to apply all amounts received by it pursuant to this
assignment to pay any of the following in the amounts and in the order Beneficiary deems appropriate:
(a) any and all Secured Obligations, in any order and proportions as Beneficiary in its sole and absolute
discretion may choose, and (b) the costs and expenses of operation of the Property and collection of
Rents and other sums that may be incurred by Trustee, Beneficiary, and/or any receiver, including but not
limited to reasonable attorneys' fees and any and all expenses of leasing, operating, maintaining, and
managing the Property, and all other costs and charges incident to the Property; including, without
limitation, (i) salaries, fees, commissions and wages of a managing agent, and other employees, agents,
or independent contractors; (ii) taxes, charges, claims, assessments, any other liens, and premiums for all
insurance; and (iii) the cost of all alterations, renovations, repairs or replacements, and all expenses
incident to taking and retaining possession of the Property. In addition, Beneficiary may hold the same as
security for the payment of the Secured Obligations. Beneficiary shall have no liability for any funds
which it does not actually receive.
2.6 Beneficiary Not Responsible. Under no circumstances shall Beneficiary have any duty
to produce Rents from the Property. Regardless of whether or not Beneficiary, in person or by agent,
takes actual possession of the Land and the Improvements, Beneficiary is not and shall not be deemed to
be:
(a) A "mortgagee in possession" for any purpose;
(b) Responsible for performing any of the obligations of the Trustor as lessor under
any lease;
(c) Responsible for any waste committed by lessees or any other parties, any
dangerous or defective condition of the Property, or any negligence in the management, upkeep, repair or
control of the Property; or
(d) Liable in any manner for the Property or the use, occupancy, enjoyment or
operation of all or any part of it.
2.7 Leasing. Other than the security deposit in an amount not to exceed one (1) month's
rent, Trustor shall not accept any deposit or prepayment of Rents for any rental period exceeding one
(1) month without Beneficiary's express prior written consent. Trustor shall not lease the Property or any
part of it except strictly in accordance with the Loan Agreement. Trustor shall apply all Rents received by
it in the manner required by the Loan Agreement.
3. Grant of Security Interest.
3.1 Security Agreement. The parties intend for this Deed of Trust to create a lien on the
Property, and an absolute assignment of the Rents and Leases, all in favor of Beneficiary. The parties
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acknowledge that some of the Property and some of the Rents and Leases may be determined under
applicable law to be personal property or fixtures. To the extent that any Property, Rents, or Leases may
be or be determined to be personal property, Trustor, as debtor, hereby grants to Beneficiary, as secured
party, a security interest in all such Property, Rents, and Leases, to secure payment and performance of
the Secured Obligations. This Deed of Trust constitutes a security agreement under the UCC, covering
all such Property, Rents, and Leases. To the extent such Property, Rents, or Leases are not real
property encumbered by the lien granted above, and are not absolutely assigned by the assignment set
forth above, it is the intention of the parties that such Property, Rents, and/or Leases shall constitute
"proceeds, products, offspring, rents, or profits" (as defined in and for the purposes of Section 552(b) of
the United States Bankruptcy Code, as such section may be modified or supplemented) of the Land and
Improvements. Notwithstanding anything herein or in any other Loan Document to the contrary, this
Deed of Trust does not grant to Beneficiary a security interest in any Movable Personal Property.
3.2 Financing Statements; Authorization to File; Power of Attorney. Trustor hereby
authorizes Beneficiary, at any time and from time to time, to file any initial financing statements,
amendments thereto, and continuation statements, with or without the signature of Trustor, as authorized
by applicable law, as applicable to the Property or any part thereof. Trustor shall pay all fees and costs
that Beneficiary may incur in filing such documents in public offices and in obtaining such record searches
as Beneficiary may reasonably require and all other reasonable fees and costs Beneficiary incurs in
connection with perfection of its security interests. For purposes of such filings, Trustor agrees to
promptly furnish any information requested by Beneficiary. Trustor also ratifies its authorization for
Beneficiary to have filed any like initial financing statements, amendments thereto, or continuation
statements if filed prior to the date of this Deed of Trust. Trustor hereby irrevocably constitutes and
appoints Beneficiary, with full power of substitution, as its true and lawful attorney -in -fact with full
irrevocable power and authority in the place and stead of Trustor to execute in Trustor's name any such
documents and to otherwise carry out the purposes of this Section, to the extent that Trustor's
authorization above is not sufficient. Such power is deemed to be coupled with an interest, and is
therefore irrevocable. If any financing statement or other document is filed in the records normally
pertaining to personal property, that filing shall never be construed as in any way derogating from or
impairing this Deed of Trust or the rights or obligations of the parties under it.
Everything used in connection with the Property and/or adapted for use therein and/or which is
described or reflected in this Deed of Trust is, and at all times and for all purposes and in all proceedings
both legal or equitable shall be regarded as part of the real estate encumbered by this Deed of Trust
regardless of whether (i) any such item is physically attached to the Improvements, (ii) serial numbers are
used for the better identification of certain equipment items capable of being thus identified in a recital
contained herein or in any list filed with Beneficiary or (iii) any such item is referred to or reflected in any
such Financing Statement so filed at any time. Similarly, the mention in any such Financing Statement of
(1) rights in or to the proceeds of any fire and/or hazard insurance policy, or (2) any award in eminent
domain proceedings for a taking or for lessening of value, or (3) Trustor's interest as lessor in any present
or future lease or rights to income growing out of the use and/or occupancy of the property conveyed
hereby, whether pursuant to lease or otherwise, shall never be construed as in any way altering any of
the rights of Beneficiary as determined by this instrument or impugning the priority of Beneficiary's lien
granted hereby or by any other recorded document. Such mention in the Financing Statement is
declared to be solely for the protection of Beneficiary in the event any court or judge shall at any time
hold, with respect to the matters set forth in the foregoing clauses (1), (2), and (3), that notice of
Beneficiary's priority of interest is required in order to be effective against a particular class of persons,
including but not limited to the federal government and any subdivisions or entity of the federal
government, shall be filed in the UCC records.
4. Effective as a Financing Statement; Fixture Filing and Construction Mortgage. This Deed
of Trust constitutes a financing statement filed as a fixture filing under Section 9502(c) of the California
Uniform Commercial Code, as amended or recodified from time to time, covering any Property which now
is or later may become fixtures attached to the Land or Improvements. This Deed of Trust shall also be
effective as a financing statement covering as -extracted collateral (including oil and gas), accounts, and
general intangibles under the UCC, which will be financed at the wellhead or minehead of the wells or
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mines located on the Land and is to be filed of record in the real estate records of each county where any
part of the Land is situated. This Deed of Trust shall also be effective as a financing statement covering
any other Property and may be filed in any other appropriate filing or recording office. The mailing
address of Trustor is the address of Trustor set forth at the end of this Deed of Trust, and the address of
Beneficiary from which information concerning the security interests hereunder may be obtained is the
address of Beneficiary set forth at the end of this Deed of Trust. A carbon, photographic, or other
reproduction of this Deed of Trust or of any financing statement related to this Deed of Trust shall be
sufficient as a financing statement for any of the purposes referred to in this Section. This Deed of Trust
is also a "Construction Mortgage," as defined in the UCC to the extent it secures an obligation incurred for
the construction of an improvement on the Land (including the acquisition cost of the Land), or the
refinancing of an obligation incurred for the construction of an improvement on the Land (including the
acquisition cost of the Land).
5. Rights and Duties of the Parties.
5.1 Representations and Warranties. Trustor represents and warrants that, except as
previously disclosed to Beneficiary in writing:
(a) Trustor is indefeasibly seized of and lawfully possesses and holds good and
marketable fee simple title to all of the Land described on Exhibit A and the Improvements, and Trustor
and its successors and assigns warrant and shall forever defend title to the Property, subject only to such
exceptions and conditions to title as Beneficiary has approved in its sole and absolute discretion (the
"Permitted Title Exceptions") (and any later such encumbrances approved by Beneficiary in writing),
unto Trustee and Trustee's successors and assigns against the claims and demands of all persons
claiming or to claim the same or any part thereof;
(b) Trustor has the full and unlimited power, right, and authority to encumber the
Property and assign the Rents;
(c) This Deed of Trust creates a first and prior lien on the Property free and clear of
all liens, encumbrances, and claims whatsoever, subject only to the Permitted Title Exceptions;
(d) The Property includes all property and rights which may be reasonably
necessary or desirable to promote the present and any reasonable future beneficial use and enjoyment of
the Land and the Improvements;
(e) Trustor owns any Property which is personal property free and clear of all liens,
encumbrances, and claims whatsoever, as well as any security agreements, reservations of title, or
conditional sales contracts, and there is no presently effective financing statement affecting such personal
property on file in any public office nor is any of such personal property subject to a security interest
having priority over Beneficiary's priority to the same except with respect to junior indebtedness, if any,
approved and permitted by Beneficiary as a Permitted Title Exception and Trustor has the right to convey
and encumber such property and will warrant and defend such property against the claims of all persons
and parties;
(f) The Property has frontage on and direct access for ingress and egress to publicly
dedicated streets;
(g) Electricity (and gas, if available), water facilities, sewer facilities and any other
necessary utilities are, and at all times hereafter shall be, available in sufficient capacity to service the
Property satisfactorily and any easements necessary to the furnishing of such utilities are or will be
granted and duly recorded; and
(h) Trustor's exact legal name, and, if Trustor is not an individual, organizational
identification number (if any assigned by Trustor's state of incorporation or organization) are correctly set
forth in this Deed of Trust. If Trustor is an individual, Trustor's principal residence has for the preceding
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four months been and will continue to be (unless Trustor notifies Beneficiary of any change in writing at
least thirty (30) days prior to the date of such change) the address of the principal residence of Trustor as
set forth at the end of this Deed of Trust. If Trustor is not an individual, Trustor is an organization of the
type and (if not an unregistered entity) is incorporated in or organized under the laws of the state
specified in the introductory paragraph of this Deed of Trust. If Trustor is an unregistered entity (including
a general partnership), it is organized under the laws of the state specified in the introductory
paragraph of this Deed of Trust. Trustor's principal place of business and chief executive office and the
place where it keeps its Books and Records has for the preceding four months (or, if less, the entire
period of the existence of Trustor) been and will continue to be (unless Trustor notifies Beneficiary of any
change in writing at least thirty (30) days prior to the date of such change) the address of Trustor set forth
at the end of this Deed of Trust.
5.2 Taxes and Assessments_
(a) Trustor shall pay prior to delinquency all taxes, levies, charges and assessments,
including assessments on appurtenant water stock (individually and collectively, an "Imposition"),
imposed by any public or quasi -public authority or utility company that are (or if not paid, may become) a
lien on all or part of the Property or any interest in it, or that, if not paid, may cause any decrease in the
value of the Property or any part of it. If any Imposition becomes delinquent, Beneficiary may require
Trustor to present evidence that it has been paid in full, on ten (10) days' written notice by Beneficiary to
Trustor. Notwithstanding the foregoing provisions of this Section, Trustor may, at its expense, contest the
validity or application of any Imposition by appropriate legal proceedings promptly initiated and conducted
in good faith and with due diligence, provided that (i) Beneficiary is reasonably satisfied that neither the
Property nor any part thereof or interest therein will be in danger of being sold, forfeited, or lost as a result
of such contest, and (ii) Trustor shall have posted a bond or furnished other security as may be
reasonably required from time to time by Beneficiary; and provided further that if at any time payment of
any obligation imposed upon Trustor by this Section becomes necessary to prevent a lien foreclosure
sale or forfeiture or loss of the Property, or any part thereof, then Trustor must pay the same in sufficient
time to prevent such sale, forfeiture, or loss.
(b) Following an Event of Default, Trustor shall, upon demand of Beneficiary, pay
monthly to Beneficiary an amount sufficient, as estimated by Beneficiary, to accumulate the sum required
to pay thirty (30) days prior to the due date thereof the annual cost of any real property taxes and any
assessments or other Impositions and the estimated next premiums for hazard and other required
insurance on the Property. These funds will be held by Beneficiary (and may be commingled with other
funds of Beneficiary) without interest and will be released to Trustor for payment of Impositions and
insurance premiums, or directly applied to such costs by Beneficiary, as Beneficiary may elect.
(c) Notwithstanding anything to the contrary in subsection (b) above, if a property tax
reserve account, taxes and insurance reserve account, or similar reserve for real property taxes is
required pursuant to the terms of the Loan Agreement or other Loan Documents, then, if and at all such
times as such reserve is required pursuant to the terms of the Loan Agreement, Trustor shall pay to
Beneficiary the reserve deposits, including, if applicable, any initial reserve deposit and any monthly or
periodic reserve deposits, as described in the Loan Agreement or other applicable Loan Document, and
all terms and conditions set forth in therein related to such reserve shall apply and are herein
incorporated by reference.
5.3 Performance of Secured Obligations. Trustor shall promptly pay and perform each
Secured Obligation in accordance with its terms.
5.4 Liens, Charges, and Encumbrances. Trustor shall immediately discharge any lien on
the Property that Beneficiary has not expressly consented to in writing. Trustor shall pay when due each
obligation secured by or reducible to a lien, charge, or encumbrance which now does or later may
encumber all or part of the Property or any interest in it, whether the lien, charge, or encumbrance is or
would be senior or subordinate to this Deed of Trust. This Section is subject to any right granted to
Trustor in the Loan Agreement to contest in good faith claims and liens for labor done and materials and
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services furnished in connection with construction of the Improvements. Trustor shall pay, perform and
observe all obligations under any Permitted Title Exceptions, and will not modify or permit modification of
them without Beneficiary's prior written consent.
5.5 Damages and Insurance and Condemnation Proceeds.
(a) Trustor hereby absolutely and irrevocably assigns to Beneficiary, and authorizes
the payor to pay to Beneficiary, the following claims, causes of action, awards, payments, and rights to
payment (whether awarded or to be awarded or which may be awarded because of judicial action, private
action, settlement, or compromise):
(i) All awards of damages and all other compensation payable directly or
indirectly because of a condemnation, proposed condemnation or taking for public or private use
which affects all or part of the Property or any interest in it; and
(ii) All other awards, claims, and causes of action, arising out of any warranty
affecting all or any part of the Property, or for damage or injury to or decrease in value of all or
part of the Property or any interest in it; and
(iii) All proceeds of any insurance policies payable because of loss sustained
to all or part of the Property, whether or not such insurance policies are required by Beneficiary;
and
(iv) All interest which may accrue on any of the foregoing.
(b) Trustor shall immediately notify Beneficiary in writing if:
(i) Any damage occurs or any injury or loss is sustained to all or any part of
the Property, or any action or proceeding relating to any such damage, injury, or loss is
commenced; or
(ii) Any offer is made, or any action or proceeding is threatened or
commenced, which relates to any actual or proposed condemnation or taking of all or part of the
Property.
(c) If Beneficiary chooses to do so, Beneficiary may in its own name appear in or
prosecute any action or proceeding to enforce any cause of action based on warranty, or for damage,
injury, or loss to all or part of the Property, and Beneficiary may make any compromise or settlement of
the action or proceeding with respect to its rights and interests. Beneficiary, if it so chooses, may
participate in any action or proceeding relating to condemnation or taking of all or part of the Property,
and may join Trustor in adjusting any loss covered by insurance, and in connection therewith, Beneficiary
shall have the right to be represented by counsel of its choice.
(d) All proceeds of these assigned claims and all other property and rights which
Trustor may receive or be entitled to shall be paid to Beneficiary. In each instance, Beneficiary shall
apply such proceeds first toward reimbursement of all of Beneficiary's costs and expenses of recovering
the proceeds, including reasonable attorneys' fees. If, in any instance, each and all of the following
conditions are satisfied in Beneficiary's reasonable judgment, Beneficiary shall permit Trustor to use the
balance of such proceeds (the "Net Claims Proceeds") to pay costs of repairing or reconstructing the
Property in the manner described below:
(i) The plans and specifications, cost breakdown, construction contract,
construction schedule, contractor and, if requested by Beneficiary, payment and performance
bond (or alternative security acceptable to Beneficiary in its sole and absolute discretion) for the
work of repair or reconstruction shall all be reasonably acceptable to Beneficiary; and
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(ii) Beneficiary shall receive evidence reasonably satisfactory to it that after
repair or reconstruction, the Property would be at least as valuable as it was immediately before
the damage or condemnation occurred, and to that end and notwithstanding any other provision
of the Loan Documents, Beneficiary may order an appraisal from an appraiser acceptable to
Beneficiary, the cost of which shall be borne by Trustor; and
(iii) The Net Claims Proceeds (together with the net proceeds of any rental
interruption insurance and reasonably projected rental receipts during the repair or reconstruction
period) shall be sufficient in Beneficiary's determination to pay for the total cost of repair or
reconstruction, including all associated development costs and interest and other sums projected
to be payable on the Secured Obligations until the repair or reconstruction is complete; or Trustor
shall provide its own funds in an amount equal to the difference between the Net Claims
Proceeds and a reasonable estimate, made by Trustor and found acceptable by Beneficiary, of
the total cost of repair or reconstruction; and
(iv) Unless otherwise agreed to by Beneficiary, Beneficiary shall receive
evidence satisfactory to it that, after the repair or reconstruction is complete, (1) all non-residential
leases acceptable to Beneficiary will continue (or a replacement therefor reasonably satisfactory
to Beneficiary immediately commences); and (2) the Property will continue to operate in
substantially the same manner, and will generate the same debt service coverage as immediately
before the damage or condemnation occurred; and
(v) Beneficiary shall be satisfied that the repair or reconstruction can be
completed prior to the maturity date of the Note; and
(vi) No default or Event of Default (as defined in the applicable document,
subject to applicable notice and cure periods) shall have occurred and be continuing under this
Deed of Trust, the Note, the Loan Agreement or any other Loan Document.
If Beneficiary finds that such conditions have been met, Beneficiary shall hold the Net Claims Proceeds,
and any funds which Trustor is required to provide, in an account and shall disburse them to Trustor to
pay costs of repair or reconstruction upon presentation of evidence reasonably satisfactory to Beneficiary
that repair or reconstruction has been completed satisfactorily and lien -free; provided, however, if
requested by Trustor, Beneficiary shall make partial progress payments of Net Claims Proceeds from time
to time, provided that (1) such progress payments shall not be more frequently or for smaller amounts
than Beneficiary approves in its sole and absolute discretion, and (2) for each such progress payment,
Beneficiary shall receive a disbursement request package including a written draw request, all in form and
substance and containing such items as are reasonably acceptable to Beneficiary, together with such
information and documentation relating thereto as Beneficiary requests to evidence the progress of
construction and payment and lien releases relating thereto, all as reasonably determined by Beneficiary.
However, if Beneficiary finds that one or more of such conditions have not been satisfied, Beneficiary may
apply the Net Claims Proceeds to pay or prepay some or all of the Secured Obligations in such order and
proportions as Beneficiary may determine, all without affecting the lien and security interest created by
this Deed of Trust. Upon the payment and performance in full of all Secured Obligations and the
termination of all commitments to make further advances of Loan proceeds, any remaining unused Net
Claims Proceeds shall be available for release to Trustor.
(e) Notwithstanding the foregoing, in the event any governmental agency or authority
shall require, or commence any proceedings for, the demolition of any buildings or structures comprising
a substantial part of the Improvements, or shall commence any proceedings to condemn or otherwise
take pursuant to the power of eminent domain a material portion of the Land or Improvements,
Beneficiary may, at its option, declare the Secured Obligations to be immediately due and payable and
apply any condemnation awards or proceeds to the Secured Obligations.
(f) Trustor hereby specifically, unconditionally, and irrevocably waives all rights of a
property owner granted under California Code of Civil Procedure Section 1265.225(a), which provides for
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allocation of condemnation proceeds between a property owner and a lienholder, and any other law or
successor statute of similar import.
5.6 Surety Bond Proceeds.
(a) Trustor hereby absolutely and irrevocably assigns to Beneficiary, and authorizes
the payor to pay to Beneficiary, all payments, rights to payment, and all other compensation payable,
directly or indirectly, under any payment, performance, or other bond (each a "Surety Bond") related to, or
issued in connection with, the construction of any Improvements or the performance of any acts, related
to the Property or any interest in it, whether or not such Surety Bonds are required by Beneficiary.
(b) Trustor shall immediately notify Beneficiary in writing of:
(i) Any threatened or actual default or breach of any obligation under any
Surety Bond; or
(ii) Any action or inaction, including a breach by any contractor under their
contract (if applicable), which would give rise to the obligation of the payor/surety to pay any
sums or perform any acts pursuant to the terms of any Surety Bond.
(c) If Beneficiary chooses to do so, Beneficiary may in its own name appear in or
prosecute any action or proceeding to enforce any cause of action based on any claim under a Surety
Bond, and Beneficiary may make any compromise or settlement of any such action or proceeding.
(d) All proceeds of these assigned payments, rights to payment, and compensation
payable, directly or indirectly, under any Surety Bond which Trustor may receive or be entitled to, shall be
paid to Beneficiary. In each instance, Beneficiary shall apply such proceeds first toward reimbursement
of all of Beneficiary's costs and expenses of recovering the proceeds, including reasonable attorneys'
fees. If Trustor desires to use the balance of such proceeds (the "Net Bond Proceeds") to pay the costs
of completing all or a part of the construction of certain of the Improvements, and each and all of the
following conditions are satisfied in Beneficiary's reasonable judgment, Beneficiary shall permit Trustor to
pay such costs of construction, in the manner described below:
(i) The plans and specifications, cost breakdown, construction contract
(including any replacement contract), construction schedule (including all revisions thereto),
contractor (including any replacement contractor), and, if required by Beneficiary, any
replacement payment and performance bond for the construction work, shall all be acceptable to
Beneficiary; and
(ii) To the extent allowed pursuant to the terms of the Surety Bond,
Beneficiary shall have approved any replacement contractor(s); and
(iii) Beneficiary shall receive evidence satisfactory to it that after the
construction is complete, the Property would be at least as valuable as it would have been if
completed pursuant to the original construction contract, and to that end and notwithstanding any
other provisions of the Loan Documents, Beneficiary may order an appraisal from an appraiser
acceptable to Beneficiary, the cost of which shall be borne by Trustor; and
(iv) The Net Bond Proceeds shall be sufficient in Beneficiary's determination to
pay for the total cost of the applicable construction, including all associated development costs
and interest and other sums projected to be payable on the Secured Obligations until the
applicable construction is complete; or Trustor shall provide its own funds in an amount equal to
the difference between the Net Bond Proceeds and a reasonable estimate, made by Trustor and
found acceptable by Beneficiary, of the total cost of such construction; and
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(v) Beneficiary shall be satisfied that the repair or reconstruction can be
completed prior to the maturity date of the Note; and
(vi) No default or Event of Default (as defined in the applicable document,
subject to applicable notice and cure periods) shall have occurred and be continuing under this
Deed of Trust, the Note, the Loan Agreement or any other Loan Document.
If Beneficiary finds that such conditions have been met, Beneficiary shall hold the Net Bond
Proceeds, and any funds which Trustor is required to provide, in a non -interest -bearing account and shall
disburse them to Trustor to pay costs of construction upon presentation of evidence reasonably
satisfactory to Beneficiary that the construction has been completed satisfactorily and lien -free, including
partial progress payments of Net Bond Proceeds from time to time, in accordance with a cost breakdown
approved by Beneficiary and the same procedures and subject to the same conditions, as are set forth in
the Loan Agreement for Loan disbursements. However, if Beneficiary finds that one or more of such
conditions have not been satisfied, Beneficiary may apply the Net Bond Proceeds to pay or prepay some
or all of the Secured Obligations in such order and proportions as Beneficiary may choose, all without
affecting the lien and security interest created by this Deed of Trust.
(e) Notwithstanding anything herein to the contrary, to the extent that any of the
terms of this Section conflict with the terms of any Surety Bond which has been approved in writing by
Beneficiary, the terms of such Surety Bond shall control.
5.7 Maintenance and Preservation of Property.
(a) Trustor shall insure the Property as required by the Loan Agreement and keep
the Property in good condition and repair.
(b) Trustor shall not remove or demolish the Property or any part of it, or alter,
restore or add to the Property, or initiate or allow any change in any zoning or other land use classification
which affects the Property or any part of it, except as permitted or required by the Loan Documents or
with Beneficiary's express prior written consent in each instance.
(c) If all or part of the Property becomes damaged or destroyed, Trustor shall
promptly and completely repair and/or restore the Property in a good and workmanlike manner in
accordance with sound building practices and notwithstanding the unavailability (for whatever reason) of
insurance proceeds from any Property insurer; provided, however, this subsection is subject to the
provisions of Sections 5.5 and 5.6 above.
(d) Trustor shall not commit or allow any act upon or use of the Property which
would violate: (i) any applicable law or order of any governmental authority, whether now existing or later
to be enacted and whether foreseen or unforeseen; or (ii) any public or private covenant, condition,
restriction or equitable servitude affecting the Property. Trustor shall not bring or keep any article on the
Property or cause or allow any condition to exist on it, if that could invalidate or would be prohibited by
any insurance coverage required to be maintained by Trustor on the Property or any part of it under the
Loan Documents.
(e) Trustor shall not commit or allow waste of the Property, including those acts or
omissions characterized under the Loan Agreement as waste that arise out of Hazardous Substances (as
such term is defined in the Loan Agreement).
(f) Trustor shall perform all other acts which from the character or use of the
Property may be reasonably necessary to maintain and preserve its value and utility.
(g) If any part of Trustor's interest in the Property is a leasehold interest, Trustor
shall observe and perform all obligations of Trustor under any such lease or leases and shall refrain from
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taking any actions prohibited by any lease or leases, and Trustor shall preserve and protect such
leasehold estate and its value.
(h) If any part of the Property is agricultural, except as otherwise set forth in the Loan
Agreement or any other Loan Document, Trustor shall (i) keep all trees, vines, and crops on the Property
properly cultivated, irrigated, fertilized, sprayed, and fumigated, (ii) shall replace all dead or unproductive
trees or vines with new ones, (iii) shall prepare for harvest, harvest, remove, and sell any crops growing
on the Property, and (iv) shall keep and maintain all buildings, fences, ditches, canals, wells and other
farming improvements on the Property in first class condition, order, and repair.
(i) If any easement or right of way appurtenant to, or recorded agreement which
benefits, the Property exists or is hereafter entered into, Trustor shall perform its obligations and duties
under such easement, right of way, or agreement, and shall take all such actions as may be necessary to
prevent such easement, right of way, or agreement from being terminated for Trustor's non-performance.
Trustor irrevocably appoints Beneficiary its attorney -in -fact, with full power of substitution, for the purpose
of performing any act to be performed by Trustor under any such easement, right of way, or agreement,
such power deemed to be coupled with an interest and therefore irrevocable.
5.8 Trustee's Acceptance of Trust. Trustee accepts this trust when this Deed of Trust is
recorded.
5.9 Releases, Extensions, Modifications, and Additional Security.
(a) From time to time, Beneficiary may perform any of the following acts without
incurring any liability or giving notice to any person:
(i) Release any person liable for payment of any Secured Obligation; or
(ii) Extend the time for payment, or otherwise alter the terms of payment, of
any Secured Obligation; or
(iii) Accept additional real or personal property of any kind as security for any
Secured Obligation, whether evidenced by deeds of trust, mortgages, security agreements or any
other instruments of security; or
(iv) Alter, substitute or release any property securing the Secured Obligations.
(b) From time to time, when requested to do so by Beneficiary in writing, Trustee
may perform any of the following acts without incurring any liability or giving notice to any person:
(i)
or
Property; or
(iii)
or the lien of it; or
(iv)
Consent to the making of any plat or map of the Property or any part of it;
Join in granting any easement or creating any restriction affecting the
Join in any subordination or other agreement affecting this Deed of Trust
Reconvey the Property or any part of it without any warranty.
5.10 Reconveyance; Release. When all of the Secured Obligations have been paid and
performed in full, and no further commitment to extend credit continues under the Secured Obligations,
then (except to the extent expressly provided herein with respect to the survival of any indemnifications,
representations, warranties, and other rights which are to continue following the release or reconveyance
hereof) Trustee shall reconvey the Property from the liens, security interests, conveyances and
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assignments herein, and this Deed of Trust and all promissory notes and instruments evidencing the
Secured Obligations shall be marked paid or cancelled and be returned to the appropriate party or
parties. Any such reconveyance shall be without warranty to the person or persons legally entitled to it.
Such person or persons shall pay any costs of recordation. Neither Beneficiary nor Trustee shall have
any duty to determine the rights of persons claiming to be rightful grantees of any reconveyance.
5.11 Compensation, Exculpation, Indemnification.
(a) Trustor agrees to pay fees in the maximum amounts legally permitted, or
reasonable fees as may be charged by Beneficiary and Trustee when the law provides no maximum limit,
for any services that Beneficiary or Trustee may render in connection with this Deed of Trust, including
Beneficiary's providing a statement of the Secured Obligations or Trustee's rendering of services in
connection with a release or reconveyance (full or partial). Trustor shall also pay or reimburse all of
Beneficiary's and Trustee's costs and expenses which may be incurred in rendering any such services.
Trustor further agrees to pay or reimburse Beneficiary for all costs, expenses, and other advances which
may be incurred or made by Beneficiary or Trustee in any efforts to enforce any terms of this Deed of
Trust, including the exercise of any rights or remedies afforded to Beneficiary or Trustee or both of them
under the remedies section below, whether any lawsuit is filed or not, or in defending any action or
proceeding arising under or relating to this Deed of Trust, including reasonable attorneys' fees and other
legal costs (which shall include reimbursement for the reasonable allocated costs of in-house counsel
used by Beneficiary and/or Trustee to the extent not prohibited by law), costs of any Trustee's Sale (as
described below), any judicial foreclosure of this Deed of Trust, and any cost of evidence of title. If
Beneficiary chooses to dispose of Property through more than one Trustee's Sale or judicial foreclosure,
Trustor shall pay all costs, expenses, or other advances that may be incurred or made by Trustee or
Beneficiary in each of such Trustee's Sales or judicial foreclosure actions.
(b) Beneficiary shall not be directly or indirectly liable to Trustor or any other person
as a consequence of any of the following:
(i) Beneficiary's exercise of or failure to exercise any rights, remedies or
powers granted to Beneficiary in this Deed of Trust;
(ii) Beneficiary's failure or refusal to perform or discharge any obligation or
liability of Trustor under any agreement related to the Property or under this Deed of Trust;
(iii) Any waste committed by lessees of the Property or any other parties, or
any dangerous or defective condition of the Property; or
(iv) Any loss sustained by Trustor or any third party resulting from
Beneficiary's failure to lease the Property, or from any other act or omission of Beneficiary in
operating or managing the Property, after an Event of Default, unless the loss is caused solely by
the gross negligence or willful misconduct of Beneficiary.
Trustor hereby expressly waives and releases all liability of the types described above, and agrees that
no such liability shall be asserted against or imposed upon Beneficiary.
(c) Trustor agrees to indemnify, defend, and hold Trustee and Beneficiary harmless,
for, from, and against, and reimburse them for, all losses, damages, liabilities, claims, causes of action,
judgments, penalties, court costs, reasonable attorneys' fees and other legal expenses and expenses of
professional consultants and experts, cost of evidence of title, cost of evidence of value, and other costs
and expenses, including the settlement of any such matter, excepting those arising out of, or resulting,
solely from Beneficiary's or Trustee's, as the case may be, gross negligence or willful misconduct, which
either may suffer or incur:
(i) In performing any act required or permitted by this Deed of Trust or any of
the other Loan Documents or by law;
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Because of any failure of Trustor to perform any of Trustor's obligations; or
(iii) Because of any alleged obligation of or undertaking by Beneficiary to
perform or discharge any of the representations, warranties, conditions, covenants, or other
obligations in any document relating to the Property other than the Loan Documents.
This agreement by Trustor to indemnify Trustee and Beneficiary shall survive payoff, termination,
or the release and cancellation of any or all of the Secured Obligations, and the full or partial release
and/or reconveyance of this Deed of Trust.
(d) Trustor shall pay all obligations to pay money arising under this
Section immediately upon written demand by Trustee or Beneficiary. Each such obligation shall be
added to, and considered to be part of, the principal of the Note, and shall bear interest from the date the
obligation arises at the Default Rate (as such term may be defined in the Note), or if no Default Rate is
specified, at five percent (5%) in excess of the Stated Rate. For purposes hereof, "Stated Rate" means
the stated interest rate in effect from time to time under the Note and/or other debt instrument evidencing
the Loan; provided that if more than one rate of interest is in effect, the highest rate shall be used.
5.12 Defense and Notice of Claims and Actions. At Trustor's sole expense, Trustor shall
protect, preserve and defend the Property and title to and right of possession of the Property, and the
security of this Deed of Trust and the rights and powers of Beneficiary and Trustee created under it,
against all adverse claims. Trustor shall give Beneficiary and Trustee prompt notice in writing if any claim
is asserted which does or could affect any of such matters, or if any action or proceeding is commenced
which alleges or relates to any such claim.
5.13 Subrogation. Beneficiary shall be subrogated to the liens of all encumbrances affecting
the Property, whether released or not, which are discharged in whole or in part by Beneficiary in
accordance with this Deed of Trust or with the proceeds of any loan secured by this Deed of Trust.
5.14 Site Visits, Observation and Testing. Beneficiary and its agents and representatives
and the other Indemnified Parties (as such term is defined in the Loan Agreement), and their agents and
representatives, shall have the right at any reasonable time to enter and visit the Property for the
purposes of observing the Property, performing appraisals, taking and removing soil or groundwater
samples, and conducting tests on any part of the Property, as provided in that certain Indemnity
Agreement (Borrower) dated as of even date herewith, executed by Trustor in favor of Beneficiary.
5.15 Notice of Change. Trustor will not cause or permit any change to be made in (a) its
name, identity, or corporate, partnership, limited liability company, or other entity structure, (b) its
jurisdiction of organization (c) its organizational identification number, (d) its place of business or, if more
than one, its chief executive office, (e) its mailing address, or (f) any change in the location of any
Property, unless Trustor shall have notified Beneficiary in writing of such change at least thirty (30) days
prior to the effective date of such change, and shall have first taken all action required by Beneficiary for
the purpose of further perfecting or protecting the lien and security interest of Beneficiary in the Property.
Unless otherwise approved by Beneficiary in writing, all Property that consists of personal property (other
than Books and Records) will be located on the Land and all Books and Records will be located at
Trustor's place of business or chief executive office if Trustor has more than one place of business.
5.16 Further Assurances. Trustor shall, promptly on request of Beneficiary, (a) correct any
defect, error or omission which may be discovered in the contents, execution, or acknowledgment of this
Deed of Trust or any other Loan Document; (b) execute, authenticate, acknowledge, deliver, procure, and
record and/or file and/or authorize the filing of such further documents (including, without limitation,
further deeds of trust, security agreements, financing statements, financing statement amendments,
continuation statements, and assignments of rents or leases) and do such further acts as may be
necessary, desirable, or proper (i) to carry out more effectively the purposes of this Deed of Trust and the
other Loan Documents, (ii) to more fully identify and subject to the liens and security interests hereof any
property intended to be covered hereby (including specifically, but without limitation, any renewals,
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additions, substitutions, replacements, or appurtenances to the Property), or (iii) as deemed advisable by
Beneficiary to protect the lien or security interest hereunder against the rights or interests of third persons;
and (c) provide such certificates, documents, reports, information, affidavits and other instruments and do
such further acts as may be necessary, desirable or proper to enable Beneficiary to comply with the
requirements or requests of any agency having jurisdiction over Beneficiary or any examiners of such
agencies with respect to the Secured Obligations, the Trustor, or the Property. Trustor shall pay all costs
connected with any of the foregoing within five (5) days after the written demand by Trustee or
Beneficiary. If not paid when due, such costs shall be added to, and considered to be part of, the
principal of the Note, and shall bear interest from the date of such written demand at the Default Rate (as
such term may be defined in the Note), or if no Default Rate is specified, at five percent (5%) in excess of
the Stated Rate.
6. Accelerating Transfers.
6.1 Beneficiary Reliance. Trustor acknowledges that, in agreeing to provide financing for
the Project, Beneficiary has examined and relied on the experience of Trustor and its General Partner in
owning, constructing, and operating properties such as the Project. Beneficiary will continue to rely on
Trustor's ownership of the Project as a means of maintaining the value of the Project as security for
repayment of the Loan and the performance of the Secured Obligations. Trustor acknowledges that
Beneficiary has a valid interest in maintaining the value of the Project so as to ensure that, should Trustor
default in the repayment of the Loan or the performance of the Secured Obligations, Beneficiary can
recover the Loan by a sale of the Project.
6.2 Transfers of Property.
(a) Limited Right to Transfer. Without the prior consent of Beneficiary and except
to the extent otherwise set forth in this Section 6.2, Trustor shall not, and shall not permit any Restricted
Party to, transfer the Project or any part thereof or any interest therein or permit or suffer the Project or
any part thereof or any interest therein to be transferred (a "Transfer of Property"); provided that the
Trustor may create or incur or suffer to be created or incurred or to exist:
(A) Statutory liens relating to the project to secure taxes,
assessments and other governmental charges or claims for labor, material or supplies in
respect of obligations not overdue;
(B) Liens in favor of the Beneficiary and/or the Trustee under the
Loan Documents; and
(C) The Permitted Encumbrances; and
(D) Liens that secure the obligations of Trustor in connection with the
Subordinate Loans, provided that such liens are subordinated to the lien of this Deed of
Trust in a manner reasonably satisfactory to Beneficiary.
The prior consent of Beneficiary is not required for a transfer of Property to an Approved Affiliate.
(b) Transfer of Property Defined. A Transfer of Property shall include, but not be
limited to, (i) a sale, conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment, grant of
options with respect to, or other transfer or disposal of (directly or indirectly, voluntarily or involuntarily, by
operation of law or otherwise, and whether or not for consideration or of record) the Project or any part
thereof or any legal or beneficial interest therein; (ii) an installment sales agreement wherein Trustor
agrees to sell the Project or any part thereof for a price to be paid in installments; and (iii) an agreement
by Trustor leasing all or a substantial part of the Project for other than actual occupancy by a space
tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Trustor's
right, title and interest in and to any Leases or any Rents.
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6.3 Transfer of Interests in Restricted Parties.
(a) Limited Ri-ght to Transfer. Without the prior consent of Beneficiary and except
to the extent otherwise set forth in this Section 6.3, Trustor shall not, and shall not permit any Restricted
Party to permit a Transfer of Interests with respect to any Restricted Party.
(b) Transfer of Interests Defined. A "Transfer of Interests" shall mean (i) if a
Restricted Party is a corporation, any merger or consolidation affecting such corporation, or Sale or
Pledge of such corporation's stock or the creation or issuance of new stock; (ii) if a Restricted Party is a
limited or general partnership or joint venture, any merger, consolidation, or "roll -up" affecting such
partnership, or the change, removal, resignation or addition of a general partner or the Sale or Pledge of
the partnership interest of any general partner or any profits or proceeds relating to such partnership
interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such
limited partnership interest or the creation or issuance of new limited partnership interests; (iii) if a
Restricted Party is a limited liability company, any merger or consolidation affecting such limited liability
company, or the change, removal, resignation or addition of a managing member or non-member
manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a
managing member (or if no managing member, any member) or any profits or proceeds relating to such
membership interest, or the Sale or Pledge of non -managing membership interests or the creation or
issuance of new non -managing membership interests; (iv) if a Restricted Party is a trust or nominee trust,
any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or
the creation or issuance of new legal or beneficial interests; or (v) the removal or the resignation of the
Manager (including, without limitation, an Affiliated Manager) other than in accordance with the provisions
of the Loan Agreement.
(c) Permitted Transfers of Interests. Notwithstanding the provisions of this
Section 6.3, the following Transfers of Interests may be effected following written notice to Beneficiary,
and subject to satisfaction of any conditions imposed by Beneficiary pursuant to this Section 6.3(c), but
without the requirement of prior written consent by Beneficiary:
(i) the sale or transfer of the interests in the Investor Limited Partner to an
Approved Transferee;
(ii) the sale or transfer, in one or a series of transactions, of non -managing
member or limited partnership interests in Investor Limited Partner;
(iii) the sale or transfer of managing member or general partnership interests
in Investor Limited Partner to an affiliate of Investor Limited Partner after funding of the Capital
Contributions in the full amount required pursuant to the Loan Agreement;
(iv) the granting by Trustor of a purchase option and/or right of first refusal to
the General Partner or an affiliate of General Partner on the terms provided in the Partnership
Agreement of Trustor shall not require the prior written consent of Beneficiary; provided, however,
that such purchase options and rights of first refusal shall have been subordinated to this Deed of
Trust and any exercise of such purchase option or right of first refusal shall be subject to the prior
written approval of Beneficiary, in its sole and absolute discretion; and
(v) the removal of General Partner, in accordance with the Partnership
Agreement, of Borrower as a result of any default by such General Partner under the Partnership
Agreement and the substitution of Investor Limited Partner (or a wholly -owned affiliate thereof) as
a general partner of Borrower (in place of the removed General Partner), but only so long as,
(1) the partnership interests of any such substitute general partner or partners shall be subject to
the Beneficiary's security interests pursuant to the terms of any security agreement, (2) any such
substitute general partner shall execute any and all documents, including security agreements
and financing statements as the Beneficiary may reasonably request in order to take subject to,
create, perfect or continue such security interests, and (3) within sixty (60) days after the removal
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of General Partner, Investor Limited Partner (or such wholly -owned affiliate thereof) transfers its
general partnership interest to an entity with substantial experience in developing, constructing,
operating and managing low-income housing property in California approved by Beneficiary and
Permanent Lender, in each of their sole and absolute discretion.
Any Transfer of Interests other than those described in clause (c) above, shall be subject to the prior
written approval of the Beneficiary, which approval may be granted or withheld in Beneficiary's sole and
absolute discretion.
6.4 Special Conditions.
(a) Beneficiary's Optional Conditions. Beneficiary shall have the right to impose
the following as conditions to compliance of any Transfer of Property or Transfer of Interests with the
requirements of this Deed of Trust:
(i) a modification of the terms of this Deed of Trust or the other Loan
Documents;
(ii) an assumption of this Deed of Trust and the other Loan Documents as
so modified by the proposed transferee, subject to the provisions of the Loan Agreement;
(iii) payment of all fees and expenses incurred in connection with such
Transfer of Interests including, without limitation, the cost of any third party reports, legal fees and
expenses or required legal opinions;
(iv) Beneficiary's approval of the proposed transferee, in Beneficiary's sole
discretion; provided, however, Beneficiary's approval shall not be required for a transfer
described in Section 6.3(c)(A);
(v) the proposed transferee's compliance with the representations set forth
in Article III of this Deed of Trust, which representations shall be true as of the date of any
Transfer of Property, and the proposed transferee's continued compliance with the warranties
and covenants set forth in this Deed of Trust;
(vi) the delivery of evidence satisfactory to Beneficiary that the single
purpose nature of Trustor, its shareholders, partners or members, as the case may be, following
such transfers are in accordance with the then current standards of Beneficiary; or
(vii) except with respect to any transfer described in Section 6.3(c)(i), such
other conditions as Beneficiary shall determine in its reasonable discretion to be in the interest of
Beneficiary, including, without limitation, the creditworthiness, reputation and qualifications of the
transferee with respect to the Loan and the Project.
(b) Effect of Failure to Comply. Failure by Trustor or the proposed transferee to
comply with any of the foregoing conditions, if imposed by Beneficiary, shall constitute an Event of Default
under this Deed of Trust. Beneficiary shall not be required to demonstrate any actual impairment of its
security or any increased risk of default hereunder in order to declare the Secured Obligations
immediately due and payable upon a Transfer of Property or Transfer of Interests that does not comply
with this Section 6. This Section 6 shall apply to every Transfer of Property and Transfer of Interests,
whether voluntary or involuntary and irrespective of whether Beneficiary has consented to any previous
Transfer of Property or Transfer of Interests.
6.5 Replacement of General Partner. Section 8.3 of the Loan Agreement is incorporated
herein as if set forth at full length herein.
6.6 Definitions.
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For purposes of this Section 6, the following terms shall have the meanings specified below:
"Affiliated Manager" means any Manager in which any Restricted Party has, directly or
indirectly, any legal, beneficial or economic interest.
"Approved Affiliate" means an entity controlling, controlled by, or under common control with the
Investor Limited Partner.
"Approved Transferee" shall mean the Investor Limited Partner or any "Approved Affiliate" of the
Investor Limited Partner.
"Manager" means The Duncan Group, a California nonprofit public benefit corporation, doing
business as Peoples' Self Help Housing, or any other manager of the Project approved by the Beneficiary
pursuant to the terms of the Deed of Trust.
"Restricted Party" means, collectively, (a) Trustor and (b) any partner, member, non-member
manager, direct or indirect legal or beneficial owner of, Trustor.
"Sale or Pledge" means a voluntary or involuntary sale, conveyance, assignment,
transfer, encumbrance or pledge of a legal or beneficial interest.
7. Events of Default; Remedies.
7.1 Events of Default. Trustor will be in default under this Deed of Trust upon the
occurrence of any one or more of the following events (some or all collectively, "Events of Default;" any
one singly, an "Event of Default"):
(a) Trustor fails to perform any obligation to pay money which arises under this Deed
of Trust, and does not cure that failure within fifteen (15) days after written notice from Beneficiary or
Trustee; or
(b) Trustor fails to perform any obligation arising under this Deed of Trust other than
one to pay money, and does not cure that failure either within thirty (30) days (the "Initial Cure Period")
after written notice from Beneficiary or Trustee, or within ninety (90) days after such written notice, so long
as Trustor begins to cure such failure within the Initial Cure Period, and Beneficiary, exercising
reasonable judgment, determines that the cure cannot reasonably be completed at or before expiration of
the Initial Cure Period; or
(c) A default or Event of Default (as such term is defined in the applicable document,
subject to any applicable notice and cure periods) has occurred under the Loan Agreement or any other
Loan Document or any document evidencing any Secured Obligation; or
(d) Trustor makes or permits the occurrence of a Transfer of Property or Transfer of
Interests in violation of Section 6 above; or
(e) Any default occurs under any other mortgage, deed of trust, security deed, or
other security instrument (as such term is defined in the applicable document, subject to any applicable
notice and cure periods) on all or any part of the Property, or under any obligation secured by such
security instrument, whether such security instrument is prior to or subordinate to this Deed of Trust; or
(f) Any representation or warranty made or given by Trustor in this Deed of Trust
proves to be false or misleading in any material respect; or
(g) Any default occurs under any Subordinate Loan Documents.
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7.2 Remedies. Except as otherwise expressly set forth in the Loan Agreement or any other
Loan Document, at any time after an Event of Default, Beneficiary and Trustee shall be entitled to invoke
any and all of the rights and remedies described below or permitted by applicable law or in equity. All of
such rights and remedies shall be cumulative, and the exercise of any one or more of them shall not
constitute an election of remedies.
(a) Acceleration. Beneficiary may declare any or all of the Secured Obligations to be
due and payable immediately and may terminate any Loan Document in accordance with its terms.
(b) Receiver. Beneficiary may apply to any court of competent jurisdiction for, and
obtain appointment of, a receiver for the Property. Trustor hereby consents to such appointment.
(c) Entry. Beneficiary, in person, by agent or by court -appointed receiver, may
enter, take possession of, manage and operate all or any part of the Property, and in its own name or in
the name of Trustor sue for or otherwise collect any and all Rents, including those that are past due, and
may also do any and all other things in connection with those actions that Beneficiary may in its sole and
absolute discretion consider necessary and appropriate to protect the security of this Deed of Trust. Such
other things may include: taking and possessing all of Trustor's or the then owner's Books and Records;
entering into, enforcing, modifying, or canceling leases on such terms and conditions as Beneficiary may
consider proper; obtaining and evicting tenants; fixing or modifying Rents (but not in excess of any
applicable maximum low income rents for residential tenants); collecting and receiving any payment of
money owing to Trustor; completing any unfinished construction; contracting for and making repairs and
alterations; and/or performing such acts of cultivation or irrigation as necessary to conserve the value of
the Property; and/or, if applicable, preparing for harvest, harvesting and selling any crops that may be
growing on the Property. If Beneficiary so requests, Trustor shall assemble all of the Property that has
been removed from the Land and make all of it available to Beneficiary at the site of the Land. Trustor
hereby irrevocably constitutes and appoints Beneficiary as Trustor's attorney -in -fact, with full power of
substitution, to perform such acts and execute such documents as Beneficiary in its sole and absolute
discretion may consider to be appropriate in connection with taking these measures, including
endorsement of Trustor's name on any instruments. The appointment granted in this Section shall be
deemed to be a power coupled with an interest. Regardless of any provision of this Deed of Trust, or any
other Loan Document, Beneficiary shall not be considered to have accepted any property other than cash
or immediately available funds in satisfaction of any obligation of Trustor to Beneficiary, unless
Beneficiary has given express written notice of Beneficiary's election of that remedy in accordance with
California Uniform Commercial Code Section 9620, as it may be amended or recodified from time to time.
Trustor agrees to deliver to Beneficiary all Books and Records pertaining to the Property, including
computer -readable memory and any computer hardware or software necessary to access or process
such memory, as may reasonably be requested by Beneficiary in order to enable Beneficiary to exercise
its rights under this Section.
(d) Cure; Protection of Security. Either Beneficiary or Trustee may cure any breach
or default of Trustor, and if it chooses to do so in connection with any such cure, Beneficiary or Trustee
may also enter the Property and/or do any and all other things that it may, in its sole and absolute
discretion, consider necessary and appropriate to protect the security of this Deed of Trust. Such other
things may include: appearing in and/or defending any action or proceeding that purports to affect the
security of, or the rights or powers of Beneficiary or Trustee under, this Deed of Trust; paying, purchasing,
contesting or compromising any encumbrance, charge, lien or claim of lien, which in Beneficiary's or
Trustee's sole judgment is or may be senior in priority to this Deed of Trust; obtaining insurance and/or
paying any premiums or charges for insurance required to be carried under the Loan Documents;
otherwise caring for and protecting any and all of the Property; and/or employing counsel, accountants,
contractors and other appropriate persons to assist Beneficiary or Trustee. Beneficiary and Trustee may
take any of the actions permitted under this Section either with or without giving notice to any person.
(e) UCC Remedies. Beneficiary may exercise any or all of the remedies granted to
a secured party under the UCC.
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(f) Judicial Action. Beneficiary may bring an action in any court of competent
jurisdiction to foreclose this Deed of Trust in the manner provided by law for the foreclosure of deeds of
trusts or mortgages on real property and/or to obtain specific enforcement of any of the covenants or
agreements of this Deed of Trust. If Beneficiary brings such an action, Trustor agrees to pay
Beneficiary's reasonable attorneys' fees (including the allocated costs of in-house counsel to the extent
not prohibited by applicable law) and court costs as determined by the court.
(g) Power of Sale. Under the power of sale hereby granted, Beneficiary shall have
the discretionary right to cause some or all of the Property, including any Property which constitutes
personal property, to be sold or otherwise disposed of in any combination and in any manner permitted by
applicable law.
(i) Sales of Personal Property.
(A) For purposes of this power of sale, and to the extent not
prohibited by applicable law, Beneficiary may elect to treat as personal property any
Property which is intangible or which can be severed from the Land or Improvements
without causing structural damage. If it chooses to do so, Beneficiary may dispose of any
personal property separately from the sale of real property, in any manner permitted by
the UCC, including any public or private sale, or in any manner permitted by any other
applicable law. Any proceeds of any such disposition shall not cure any Event of Default
or reinstate any Secured Obligation.
(B) In connection with any sale or other disposition of such personal
property disposed of separately from the sale of the real property, Trustor agrees that the
following procedures constitute a commercially reasonable sale. Beneficiary shall mail
written notice of the sale to Trustor not later than forty-five (45) days prior to such sale.
Once per week during the four weeks immediately preceding such sale, Beneficiary will
publish notice of the sale in a local daily newspaper of general circulation. Upon receipt
of any written request, Beneficiary will make the personal property available to any bona
fide prospective purchaser for inspection during reasonable business hours.
Notwithstanding, Beneficiary shall be under no obligation to consummate a sale if, in its
judgment, none of the offers received by it equal the fair value of the personal property
offered for sale. The foregoing procedures do not constitute the only procedures that
may be commercially reasonable.
(ii) Trustee's Sales of Real Property or Mixed Collateral.
(A) Beneficiary may choose to dispose of some or all of the Property
which consists solely of real property in any manner then permitted by applicable law. In
its sole and absolute discretion, and to the extent not prohibited by applicable law,
Beneficiary may also or alternatively choose to dispose of some or all of the Property, in
any combination consisting of both real and personal property, together in one sale to be
held in accordance with the law and procedures applicable to real property, as may be
permitted by the UCC. Trustor agrees that such a sale of personal property together with
real property constitutes a commercially reasonable sale of the personal property. For
purposes of this power of sale, either a sale of real property alone, or a sale of both real
and personal property together in accordance with the UCC, will sometimes be referred
to as a "Trustee's Sale."
(B) Before any Trustee's Sale, Beneficiary or Trustee shall give such
statement of breach or nonperformance, notice of sale, and/or notice of default as may
then be required by applicable law. When all time periods then legally mandated have
expired, and after such notice of sale and/or other notice as may then be legally required
has been given, Trustee shall sell the property being sold at a public auction to be held at
the time and place specified in the notice of sale. Neither Trustee nor Beneficiary shall
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have any obligation to make demand on Trustor before any Trustee's Sale. From time to
time in accordance with then applicable law, Trustee may, and in any event at
Beneficiary's request shall, postpone any Trustee's Sale by public announcement at the
time and place noticed for that Trustee's Sale, unless otherwise required by applicable
law.
(C) At any Trustee's Sale, Trustee shall sell to the highest bidder at
public auction for cash in lawful money of the United States, payable at the time of sale
unless otherwise required by applicable law. Trustee shall execute and deliver to the
purchaser(s) a deed or deeds conveying the property being sold without any covenant or
warranty whatsoever, express or implied. The recitals in any such deed of any matters or
facts, including any facts bearing upon the regularity or validity of any Trustee's Sale,
shall be conclusive proof of their truthfulness, absent manifest error. Absent manifest
error, any such deed shall be (1) conclusive against all persons as to the facts recited in
it; and (2) conclusive evidence in favor of purchasers and encumbrancers for value and
without actual notice, that all requirements of this Deed of Trust and all requirements of
law were met relating to the exercise of the power of sale and the Trustee's Sale of the
Property conveyed by such deed. Knowledge of the Trustee shall not be imputed to the
Beneficiary.
(h) Attorney -in -Fact. Trustor hereby irrevocably constitutes and appoints Beneficiary
as Trustor's attorney -in -fact, with full power of substitution, to perform such acts and execute such
documents as Beneficiary in its sole and absolute discretion may consider to be appropriate (1) to effect
the purpose of this Deed of Trust; and (2) in connection with taking the measures described in this
Section, including endorsement of Trustor's name on any instruments. This appointment granted in this
Section shall be deemed to be a power coupled with an interest, and is therefore irrevocable.
(i) Single or Multiple Foreclosure Sales. Unless prohibited by applicable law,
Beneficiary may elect to dispose of the Property, or any portion thereof, including but not limited to lots,
parcels, and/or items through a single consolidated sale or disposition to be held or made under the
power of sale granted above, or in connection with judicial proceedings, or by virtue of a judgment and
decree of foreclosure and sale; or through two or more such sales or dispositions; or in any other manner
Beneficiary may deem to be in its best interests (any such sale or disposition, a "Foreclosure Sale;" any
two or more, "Foreclosure Sales"). If the Property consists of more than one lot, parcel or item of
property, Beneficiary may designate the order in which the lots, parcels and/or items shall be sold or
disposed of or offered for sale or disposition. If Beneficiary chooses to have more than one Foreclosure
Sale, Beneficiary at its option may cause the Foreclosure Sales to be held simultaneously or
successively, on the same day, or on such different days and at such different times and in such order as
Beneficiary may deem to be in its best interests. No Foreclosure Sale shall terminate or affect the lien of
this Deed of Trust on any part of the Property which has not been sold, until all of the Secured Obligations
have been paid and performed in full.
7.3 Personal Property. It shall not be necessary that Beneficiary take possession of all or
any part of the Property that is personal property or fixture property prior to the time that any sale
pursuant to the provisions of this Section is conducted, and it shall not be necessary that such Property or
any part thereof be present at the location of such sale. With respect to application of proceeds from
disposition of such Property, the costs and expenses incident to disposition shall include the reasonable
expenses of retaking, holding, preparing for sale or lease, selling, leasing and the like and the reasonable
attorneys' fees and legal expenses (including, without limitation, the allocated costs for in-house counsel
to the extent not prohibited by applicable law) incurred by Beneficiary. Any and all statements of fact or
other recitals made in any bill of sale or assignment or other instrument evidencing any foreclosure sale
hereunder as to nonpayment of the Secured Obligations or as to the occurrence of any default or Event of
Default, or as to Beneficiary having declared all of such indebtedness to be due and payable, or as to
notice of time, place, and terms of sale, and of the properties to be sold having been duly given, or as to
any other act or thing having been duly done by Beneficiary, shall be taken as prima facie evidence of the
truth of the facts so stated and recited (absent manifest error). Beneficiary may appoint or delegate any
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one or more persons as agent to perform any act or acts necessary or incident to any sale held by
Beneficiary, including the sending of notices and the conduct of the sale, but in the name and on behalf of
Beneficiary. Beneficiary may comply with any applicable state or federal law or regulatory requirements
in connection with a disposition of the Property or any part thereof, and such compliance will not be
considered to affect adversely the commercial reasonableness of any sale of such Property. Beneficiary
may sell all or any portion of the Property without giving any warranties as to such Property, and may
specifically disclaim any warranties of title, merchantability, fitness for a specific purpose, or the like, and
this procedure will not be considered to affect adversely the commercial reasonableness of any sale of
such Property. Trustor acknowledges that a private sale of all or any part of the Property may result in
less proceeds than a public sale, and Trustor acknowledges that the Property may be sold at a loss to
Trustor, and that, in such event, Beneficiary shall have no liability or responsibility to Trustor for such loss.
In addition to the rights granted elsewhere in this Deed of Trust, after the occurrence of any default or
Event of Default, Beneficiary may at any time notify the account debtors or obligors of any accounts,
chattel paper (whether tangible or electronic), general intangibles (including payment intangibles),
negotiable instruments, promissory notes, or other evidences of indebtedness included in the Property to
pay Beneficiary directly.
7.4 Credit Bids. At any Foreclosure Sale, any person, including Trustor, Trustee, or
Beneficiary, may bid for and acquire the Property or any part of it to the extent not expressly prohibited by
then applicable law. Instead of paying cash for such property, Beneficiary may settle for the purchase
price by crediting the sales price of the property against the following obligations:
(a) First, the portion of the Secured Obligations attributable to the expenses
of sale, costs of any action, and any other sums for which Trustor is obligated to pay or reimburse
Beneficiary or Trustee under Section 5.11 above; and
(b) Second, all other Secured Obligations in any order and proportions as
Beneficiary in its sole and absolute discretion may choose.
7.5 Application of Trustee's Sale or Foreclosure Sale Proceeds. Except as may be
otherwise required by law, Beneficiary and Trustee shall apply the proceeds of any Trustee's Sale,
Foreclosure Sale, or any other sale of personal property collateral under this Deed of Trust, in the
following manner:
(a) First, to pay the portion of the Secured Obligations attributable to the expenses of
sale, including all costs and expenses of exercising the power of sale and other costs of sale, including,
but not limited to, trustee's fees and reasonable attorneys' fees, the costs of any action, and any other
sums for which Trustor is obligated to reimburse Beneficiary or Trustee under this Deed of Trust; and
(b) Second, to pay the portion of the Secured Obligations attributable to any sums
expended or advanced by Beneficiary or Trustee under the terms of this Deed of Trust which then remain
unpaid; and
(c) Third, to pay all other Secured Obligations, to the extent not expressly prohibited
by applicable law, in any order and proportions as Beneficiary in its sole and absolute discretion may
choose; and
(d) Fourth, to remit the remainder, if any, to the person or persons entitled to it, or, if
permitted or required by applicable law, to the clerk of the court of the county in which the Trustee's Sale,
Foreclosure Sale, or any other sale of personal property collateral under this Deed of Trust, took place.
If the Secured Obligations include more than one loan or line of credit, by cross-collateralization or
otherwise, it is specifically agreed that the proceeds of any Trustee's Sale or other foreclosure action shall
not be applied pro-rata unless such application is directed by Beneficiary, but instead shall be applied to
all such Secured Obligations in any order, proportions and manner as Beneficiary in its sole and absolute
discretion may choose.
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7.6 Application of Rents and Other Sums. Beneficiary shall apply any and all Rents
collected by it in such order as set forth in Section 2.5 above, and any and all other sums, other than
proceeds of a Trustee's Sale or a judicial foreclosure sale under this Deed of Trust, which Beneficiary
may receive or collect under this Section, in the following manner:
(a) First, to pay the portion of the Secured Obligations attributable to the costs and
expenses of operation of the Property and collection of Rents and other sums that may be incurred by
Trustee, Beneficiary, and/or any receiver, including but not limited to reasonable attorneys' fees and any
and all expenses of leasing, operating, maintaining, and managing the Property, and all other costs and
charges incident to the Property; and
(b) Second, to pay all other Secured Obligations in any order and proportions as
Beneficiary in its sole and absolute discretion may choose; and
(c) Third, to remit the remainder, if any, to the person or persons entitled to it.
Beneficiary shall have no liability for any funds which it does not actually receive.
7.7 Liens, Charges and Encumbrances. Trustor shall immediately discharge any lien on
the Property that other than (a) those liens and encumbrances approved by Beneficiary as exceptions in
the policy of title insurance that insures the validity and priority of this Deed of Trust (the "Permitted
Encumbrances"); and (b) and other lien or encumbrances that Beneficiary has expressly consented to in
writing. Trustor shall pay when due each obligation secured by or reducible to a lien, charge, or
encumbrance which now does or later may encumber or appear to encumber all or part of the Property or
any interest in it, whether the lien, charge, or encumbrance is or would be senior or subordinate to this
Deed of Trust. This Section is subject to any right granted to Trustor in the Loan Agreement to contest in
good faith claims and liens for labor done and materials and services furnished in connection with
construction of the Improvements.
8. Miscellaneous Provisions.
8.1 Additional Provisions. The Loan Documents fully state all of the terms and conditions
of the parties' agreement regarding the matters mentioned in or incidental to this Deed of Trust. The
Loan Documents also grant further rights to Beneficiary and certain of them contain further agreements
and affirmative and negative covenants by Trustor which apply to this Deed of Trust and to the Property.
8.2 No Waiver or Cure.
(a) Each waiver by Beneficiary or Trustee shall be in writing, and no waiver shall be
construed as a continuing waiver. No waiver shall be implied from any delay or failure by Beneficiary or
Trustee to take action on account of any default of Trustor. Consent by Beneficiary or Trustee to any act
or omission by Trustor shall not be construed as a consent to any other or subsequent act or omission or
to waive the requirement for Beneficiary's or Trustee's consent to be obtained in any future or other
instance. Reinstatement after an Event of Default shall not constitute a waiver of any Event of Default
then existing or subsequently occurring, nor impair the right of Beneficiary to declare other Events of
Default, nor otherwise affect this Deed of Trust or any of the Loan Documents, or any of the rights,
obligations, or remedies of Beneficiary or Trustee under this Deed of Trust or any of the Loan Documents.
(b) If any of the events described below occurs, that event alone shall not: cure or
waive any breach, Event of Default, or notice of default under this Deed of Trust or invalidate any act
performed pursuant to any such default or notice; or nullify the effect of any notice of default or sale
(unless all Secured Obligations then due have been paid and performed and all other defaults under the
Loan Documents have been cured); or impair the security of this Deed of Trust; or prejudice Beneficiary,
Trustee, or any receiver in the exercise of any right or remedy afforded any of them under this Deed of
Trust; or be construed as an affirmation by Beneficiary of any tenancy, lease or option, or a subordination
of the lien of this Deed of Trust.
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(i) Beneficiary, its agent, or a receiver takes possession of all or any part of
the Property in the manner provided this Deed of Trust; or
(ii) Beneficiary collects and applies Rents and enforces any Lease provision
as permitted under this Deed of Trust, either with or without taking possession of all or any part of
the Property; or
(iii) Beneficiary receives and applies to any Secured Obligation any
proceeds of any Property, including any proceeds of insurance policies, condemnation awards,
surety bond proceeds, or other claims, property or rights assigned to Beneficiary under this Deed
of Trust; or
(iv) Beneficiary makes a site visit, observes the Property, and/or conducts
tests as permitted under this Deed of Trust; or
(v) Beneficiary receives any sums under this Deed of Trust or any proceeds
of any collateral held for any of the Secured Obligations, and applies them to one or more
Secured Obligations; or
(vi) Beneficiary, Trustee, any agent of either of them, or any receiver
performs any act which it is empowered or authorized to perform, or invokes any right or remedy
provided under this Deed of Trust.
8.3 Powers of Beneficiary and Trustee.
(a) Trustee shall have no obligation to perform any act which it is empowered to
perform under this Deed of Trust unless it is requested to do so in writing and is reasonably indemnified
against loss, cost, liability and expense.
(b) If either Beneficiary or Trustee performs any act which it is empowered or
authorized to perform under this Deed of Trust, that act alone shall not release or change the personal
liability of any person for the payment and performance of the Secured Obligations then outstanding or
the lien of this Deed of Trust on all or the remainder of the Property for full payment and performance of
all outstanding Secured Obligations. The liability of the original Trustor shall not be released or changed
if Beneficiary grants any successor in interest to Trustor any extension of time for payment, or
modification of the terms of payment, of any Secured Obligation. Beneficiary shall not be required to
comply with any demand by the original Trustor that Beneficiary refuse to grant such an extension or
modification to, or commence proceedings against, any such successor in interest.
(c) Beneficiary may take any of the actions permitted under this Deed of Trust,
including without limitation appointment of a receiver, regardless of the adequacy of the security for the
Secured Obligations, or whether any or all of the Secured Obligations have been declared to be
immediately due and payable, or whether notice of default and election to sell has been given under this
Deed of Trust.
(d) From time to time, Beneficiary or Trustee may apply to any court of competent
jurisdiction for aid and direction in executing the trust and enforcing the rights and remedies created
under this Deed of Trust. Beneficiary or Trustee may from time to time obtain orders or decrees directing,
confirming, or approving acts in executing this trust and enforcing such rights and remedies.
8.4 Merger. No merger shall occur as a result of Beneficiary's acquiring any other estate in
or any other lien on the Property unless Beneficiary consents to a merger in writing.
8.5 Joint and Several Liability. If more than one person has executed this Deed of Trust as
Trustor, each shall be jointly and severally liable for the faithful performance of all of Trustor's obligations
under this Deed of Trust
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8.6 Governing Law; Waiver of Jury Trial. This Deed of Trust shall be governed by the
laws of the State of California, without regard to the choice of law rules of that state. TO THE EXTENT
NOT PROHIBITED BY APPLICABLE LAW, TRUSTOR KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR
CAUSE OF ACTION BASED UPON OR ARISING UNDER THIS DEED OF TRUST OR ANY OF THE
LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN OR RELATED
THERETO, OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DISCUSSIONS, DEALINGS, OR ACTIONS (WHETHER ORAL OR WRITTEN) WITH RESPECT
THERETO, WHETHER NOW EXISTING OR HEREINAFTER ARISING, AT LAW OR IN EQUITY.
TRUSTOR HEREBY CONSENTS AND AGREES THAT ANY SUCH CLAIM, DEMAND, ACTION, OR
CAUSE OF ACTION SHALL BE DECIDED BY A TRIAL COURT WITHOUT A JURY. TRUSTOR
ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR BENEFICIARY MAKING THE LOAN. TRUSTOR FURTHER REPRESENTS AND
WARRANTS THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS DEED OF TRUST AND
IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, OR HAS HAD THE
OPPORTUNITY TO BE REPRESENTED BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS
OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH
COUNSEL.
8.7 Successors in Interest. The terms, covenants, and conditions of this Deed of Trust
shall be binding upon and inure to the benefit of the heirs, and permitted successors, and assigns of the
parties; provided, however, that this Section shall not waive or modify the provisions of Section 6.1
above.
8.8 Statute of Limitations. To the extent not expressly prohibited by law, Trustor hereby
waives the right to plead the statute of limitations as a defense to any and all obligations secured by this
Deed of Trust.
8.9 Substitution of Trustee. From time to time, Beneficiary may substitute a successor to
any Trustee named in or acting under this Deed of Trust in any manner now or later to be provided at law,
or by a written instrument executed and acknowledged by Beneficiary and recorded in the office(s) of the
recorder(s) of the county or counties where the Land and the Improvements are situated. Any such
instrument shall be conclusive proof of the proper substitution of the successor Trustee, who shall
automatically upon recordation of the instrument succeed to all estate, title, rights, powers and duties of
the predecessor Trustee, without conveyance from it.
hereof.
8.10 Time of Essence. Time is of the essence of this Deed of Trust and each and every term
8.11 Interpretation.
(a) Whenever the context requires, all words used in the singular will be construed to
have been used in the plural, and vice versa, and each gender will include any other gender. The
captions of the sections of this Deed of Trust are for convenience only and do not define or limit any
terms or provisions. The word "include(s)" means "include(s), without limitation," and the word "including"
means "including, but not limited to."
(b) The word 'obligations" is used in its broadest and most comprehensive sense,
and includes all primary, secondary, direct, indirect, fixed, and contingent obligations. It further includes
all principal, interest, prepayment fees, late charges, loan fees, and any other fees and charges accruing
or assessed at any time, as well as all obligations to perform acts or satisfy conditions.
(c) No listing of specific instances, items, or matters in any way limits the scope or
generality of any language of this Deed of Trust. The Exhibits to this Deed of Trust are hereby
incorporated by reference in this Deed of Trust.
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(d) No course of prior dealing, usage of trade, or parol or extrinsic evidence of any
nature shall be used to supplement, modify, or vary any of the terms hereof.
8.12 Attorneys Fees; In -House Counsel Fees. In any lawsuit, reference, or arbitration
arising out of or relating to this Deed of Trust the prevailing party will be entitled to recover from each
other party such sums as the court, referee, or arbitrator adjudges to be reasonable attorneys' fees in the
action, reference, or arbitration, in addition to costs and expenses otherwise allowed by law. Whenever
Trustor is obligated to pay or reimburse Beneficiary or Trustee for any attorneys' fees, those fees shall
include the allocated costs for services of in-house counsel to the extent not prohibited by applicable law.
8.13 Waiver of Marshaling. Trustor waives all rights, legal and equitable, it may now or
hereafter have to require marshaling of assets or to direct the order in which any of the Property will be
sold in the event of any sale under this Deed of Trust. Each successor and assign of Trustor, including
any holder of a lien subordinate to this Deed of Trust, by acceptance of its interest or lien agrees that it
shall be bound by the above waiver, as if it had given the waiver itself.
8.14 Severability. If any provision of this Deed of Trust should be held unenforceable or void,
that provision shall be deemed severable from the remaining provisions and shall in no way affect the
validity of this Deed of Trust, except that if such provision relates to the payment of any monetary sum,
then Beneficiary may, at its option, declare all Secured Obligations immediately due and payable.
8.15 Notices. Trustor hereby requests that a copy of any notice of default, notice of sale,
and/or other notices prescribed by applicable law, be mailed to it at the address set forth below. If any
Trustor fails to insert an address, that failure will constitute a designation of Trustor's last known address
as the address of such notice. That address is also the mailing address of Trustor as debtor under the
UCC. Beneficiary's address given below is the address for Beneficiary as secured party under the UCC.
8.16 Partial Releases. Trustor may, regardless of consideration, cause the release of any
part of the Property from the lien of this Deed of Trust without in any manner affecting or impairing the lien
or priority of this Deed of Trust as to the remainder of the Property. Notwithstanding anything contained
herein to the contrary, this Deed of Trust is subject to any partial release provisions set forth in the Loan
Agreement.
8.17 Reporting Compliance. Trustor agrees to comply with any and all reporting
requirements applicable to Secured Obligations which are set forth in any law, statute, ordinance, rule,
regulation, order, or determination of any governmental authority, and further agrees to furnish
Beneficiary with evidence of such compliance upon the request of Beneficiary.
8.18 Release Fee. Unless expressly prohibited by applicable law, Trustor shall pay to
Beneficiary, at the time of each partial or complete release of the lien of this Deed of Trust, a reasonable
release fee, as determined by Beneficiary.
8.19 CCP Section 726.5. In the event that any portion of the Property is determined to be
'environmentally impaired' (as 'environmentally impaired' is defined in California Code of Civil Procedure
Section 726.5(e)(3)) or to be an 'affected parcel' (as 'affected parcel' is defined in California Code of Civil
Procedure Section 726.5(e)(1)), then, without otherwise limiting or in any way affecting Beneficiary's or
Trustee's rights and remedies under this Deed of Trust, Beneficiary may elect to exercise its right under
California Code of Civil Procedure Section 726.5(a) to (1) waive its lien on such environmentally impaired
or affected portion of the Property and (2) exercise (i) the rights and remedies of an unsecured creditor,
including reduction of its claim against Trustor to judgment, and (ii) any other rights and remedies
permitted by law. For purposes of determining Beneficiary's right to proceed as an unsecured creditor
under California Code of Civil Procedure Section 726.5(a), Trustor shall be deemed to have willfully
permitted or acquiesced in a release or threatened release of hazardous materials, within the meaning of
California Code of Civil Procedure Section 726.5(d)(1), if the release or threatened release of hazardous
materials was knowingly or negligently caused or contributed to by any lessee, occupant or user of any
portion of the Property and Trustor knew or should have known of the activity by such lessee, occupant or
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user which caused or contributed to the release or threatened release. All costs and expenses, including,
but not limited to, attorneys' fees, incurred by Beneficiary in connection with any action commenced under
this Section, including any action required by California Code of Civil Procedure Section 726.5(b) to
determine the degree to which the Property is environmentally impaired, plus interest thereon at the rate
specified in the Note until paid, shall be added to the indebtedness secured by this Deed of Trust and
shall be due and payable to Beneficiary upon its demand made at any time following the conclusion of
such action.
8.20 Subordination to Extended Use Agreement. As a condition to the allocation of Tax
Credits, Trustor is required to record in the real property records of the county in which the property is
located, an "extended low-income housing commitment" (as defined in Code Section 42(h)(6)(B)) (the
"Extended Use Agreement"). Beneficiary acknowledges that under the terms of the Extended Use
Agreement, if Beneficiary or its successors or assigns (collectively, the "REO Owner") acquires the
Property and Improvements by foreclosure (or instrument in lieu of foreclosure), then the "extended use
period" (as defined in Code Section 42(h)(6)(D)) shall terminate, except for the obligation of the REO
Owner to comply with the limitations on evictions, termination of tenancy and increase in rents for the
three year period following the REO Owner's acquisition of the Property, as set forth in Code
Section 42(h)(6)(E)(ii).
8.21 Notice and Cure of Limited Partner. Section 8.3 of the Loan Agreement is
incorporated herein as if set forth at full length herein.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, Trustor has executed this Deed of Trust the date first above written.
TRUSTOR:
BROAD STREET PLACE, L.P.,
a California limited partnership
By: Broad Street Place LLC,
a California limited liability company,
its General Partner
By: People's Self -Help Housing Corporation,
a California nonprofit public benefit corporation,
its sole Member and Manager
By:
Morgen Ben vedo
Executive Vice President
Address for notices to Trustor:
Broad Street Place, L.P.
c/o People's Self -Help Housing Corporation
3533 Empleo Street
San Luis Obispo, California 93401
Attention: President & CEO
With a copy to:
Gubb & Barshay LLP
505 141h Street, Suite 450
Oakland, California 94612
Attention: Sarah C. Perez, Esq.
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Address for notices to Trustee:
PRLAP, Inc.
Mail Code: CA4- 704-06-06
2000 Clayton Road, Building D, 6th Floor
Concord, California 94520
Address for notices to Beneficiary:
2000 Clayton Road, Building D, 61h Floor
Concord, California 94520
Mail Code: CA4-704-06-06
Attention: Loan Administration Manager
With a copy to:
California Community Reinvestment Corporation
100 West Broadway, Suite 1000
Glendale, California 91210
Attention: President
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California )
County o clk7js o
ss
On Al.a" g 2021 before me, G. I , 6&9--feoj-A.J h ,
a Notary Public, personally appeared M 0 R & /J R 6/1-)& Vt O , who proved
to me on the basis of satisfactory evidence to be the person (s) whose name (s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her their authorized
capacity (ies), and that by his/her/their signature (s) on the instrument the person (s), or the entity upon
behalf of which the person (s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
L.A. BERTRAND
Notary Public - California z
uz"�2�
San Luis Obispo County
(Seal)
Broad Street
construction and Permanent Deed of Trust
EXHIBIT A
Description of Land
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE CITY OF SAN LUIS OBISPO, COUNTY OF
SAN LUIS OBISPO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL A:
PARCEL 3 OF PARCEL MAP SLO 13-0003, IN THE CITY OF SAN LUIS OBISPO, COUNTY OF SAN
LUIS OBISPO, STATE OF CALIFORNIA, ACCORDING TO MAP RECORDED JANUARY 31, 2014 IN
BOOK 77 OF PARCEL MAPS AT PAGES 16 AND 17.
PARCEL B
A 40 FOOT PRIVATE ACCESS AND UTILITY EASEMENT OVER PARCEL 2 OF PARCEL MAP SLO
13-0003, IN THE CITY OF SAN LUIS OBISPO, COUNTY OF SAN LUIS OBISPO, STATE OF
CALIFORNIA, ACCORDING TO MAP RECORDED JANUARY 31, 2014 IN BOOK 77 OF PARCEL MAPS
AT PAGES 16 AND 17, AND AS DESCRIBED IN THAT CERTAIN GRANT OF EASEMENT AND
AGREEMENT FOR COMMON DRIVEWAY AND UTILITIES RECORDED JANUARY 31, 2014, AS
INSTRUMENT NO. 2014004065.
PARCEL C
AN EASEMENT FOR PEDESTRIAN ACCESS OVER A PORTION OF PARCEL 4 OF PARCEL MAP
SLO13-0003, FILED IN BOOK 77 OF MAPS, PAGES 16 AND 17, SAN LUIS OBISPO COUNTY
RECORDS AND MORE PARTICULARLY DESCRIBED IN THAT CERTAIN RECIPROCAL ACCESS
EASEMENT AGREEMENT, WHICH ALSO CONTAINS PROVISIONS FOR PARKING AS DESCRIBED
THEREIN, RECORDED MARCH 8, 2017, AS INSTRUMENT NO. 2017010455, OFFICIAL RECORDS,
SAN LUIS OBISPO COUNTY.
PARCEL D:
EASEMENTS AS CREATED IN THAT CERTAIN DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS, RECORDED FEBRUARY 19, 2014, AS INSTRUMENT NO. 2014006630 SAN LUIS
OBISPO COUNTY RECORDS.
PARCEL E:
AN EASEMENT FOR UNDERGROUND UTILITIES AS CREATED IN THAT CERTAIN EASEMENT
AGREEMENT IN FAVOR OF PEOPLE'S SELF-HELP HOUSING CORPORATION, A CALIFORNIA
NONPROFIT PUBLIC BENEFIT CORPORATION, RECORDING CONCURRENTLY HEREWITH.
APN: 053-231-048
Street Address
3720 Broad Street, San Luis Obispo, CA 93401
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