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DOC # 2021-0189518
RecardingRequestedBy: 03/25/2021 02:46 PM Fees: $0.00
Page 1 of 26
First American Title Insurance Company
National Commercial Services,Ontario,CA Recorded in Official Records
CS—q13 County of Riverside
Peter Aldana
Assessor-County Clerk-Recorder
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO: **This document was electronically submitted
to the County of Riverside for recording**
City of Cathedral City Receipted by: MARY#420
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
Attention: City Clerk
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
Space above this line for Recorder's use.
DEED OF TRUST, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS DEED OF TRUST WITH ASSIGNMENT OF RENTS, SECURITY AGREEMENT
AND FIXTURE FILING ("Deed of Trust") is made as of March 1, 2021, by A0685
Cathedral City, L.P., a California limited partnership ("Trustor") to First American Title
Company as trustee ("Trustee"), for the benefit of the City of Cathedral City, a municipal
corporation, acting in its capacity as the Housing Successor Agency to the former
Redevelopment Agency of the City of Cathedral City (in such capacity, the
"Beneficiary").
RECITALS
A. Trustor owns fee simple title to the land described in Exhibit A attached
hereto and incorporated herein by this reference (the "Land"). The Land is located in
the City of Cathedral City, Riverside County, California.
B. Beneficiary, Urban Housing Communities, LLC, a California limited liability
company ("UHC"), and Ikaika Ohana, a Hawaii nonprofit corporation, entered into a
Disposition, Development, and Grant Agreement dated as of December 4, 2018 and
recorded in the Official Records of Riverside County on December 11, 2018 as
Document No. 2018-0481937 (the "DDA"). Trustor has assumed the rights and
obligations of UHC under the DDA pursuant to that certain Assignment and Assumption
Agreement dated as of April 29, 2019 and recorded in the Official Records on May 2,
2019 as Document No. 2019-0152112. Pursuant to the DDA, Beneficiary is providing a
grant in the amount of One Million Dollars ($1,000,000) (the "Grant") for the purpose of
providing financing for the Project (as defined in the DDA).
C. As a condition precedent to the making of the Grant, Beneficiary has
required that Trustor enter into this Deed of Trust and grant to Trustee for the benefit of
Beneficiary, a lien and security interest in the Project and the Property (defined below)
to secure performance of Trustor's obligations under the Agency Documents (defined
below).
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Recording Requested By:
First American Title Insurance Company
National Commercial Services,Ontario,CA
1.3 CS-113 1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Cathedral City
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
Attention: City Clerk
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
Space above this line for Recorder's use.
DEED OF TRUST, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS DEED OF TRUST WITH ASSIGNMENT OF RENTS, SECURITY AGREEMENT
AND FIXTURE FILING ("Deed of Trust") is made as of March 1, 2021, by A0685
Cathedral City, L.P., a California limited partnership ("Trustor") to First American Title
Company as trustee ("Trustee"), for the benefit of the City of Cathedral City, a municipal
corporation, acting in its capacity as the Housing Successor Agency to the former
Redevelopment Agency of the City of Cathedral City (in such capacity, the
"Beneficiary").
RECITALS
A. Trustor owns fee simple title to the land described in Exhibit A attached
hereto and incorporated herein by this reference (the "Land"). The Land is located in
the City of Cathedral City, Riverside County, California.
B. Beneficiary, Urban Housing Communities, LLC, a California limited liability
company ("UHC"), and Ikaika Ohana, a Hawaii nonprofit corporation, entered into a
Disposition, Development, and Grant Agreement dated as of December 4, 2018 and
recorded in the Official Records of Riverside County on December 11, 2018 as
Document No. 2018-0481937 (the "DDA"). Trustor has assumed the rights and
obligations of UHC under the DDA pursuant to that certain Assignment and Assumption
Agreement dated as of April 29, 2019 and recorded in the Official Records on May 2,
2019 as Document No. 2019-0152112. Pursuant to the DDA, Beneficiary is providing a
grant in the amount of One Million Dollars ($1,000,000) (the "Grant") for the purpose of
providing financing for the Project (as defined in the DDA).
C. As a condition precedent to the making of the Grant, Beneficiary has
required that Trustor enter into this Deed of Trust and grant to Trustee for the benefit of
Beneficiary, a lien and security interest in the Project and the Property (defined below)
to secure performance of Trustor's obligations under the Agency Documents (defined
below).
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D. In addition, Trustor and Beneficiary have executed an Affordable Housing
Regulatory Agreement and Declaration of Restrictive Covenants, dated as of the date
hereof (the "Regulatory Agreement") which imposes certain rent and occupancy
restrictions. The Regulatory Agreement will be recorded substantially concurrently with
this Deed of Trust.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is agreed as follows.
1. Grant in Trust. In consideration of the foregoing and for the purpose of securing
payment and performance of the Secured Obligations defined and described in Section
2, Trustor hereby irrevocably and unconditionally grants, conveys, 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 Land, and all of the following, whether presently owned or
hereafter acquired:
a. All buildings, structures, and improvements, now or hereafter located or
constructed on the Land ("Improvements");
b. All appurtenances, easements, rights of way, pipes, transmission lines or
wires and other rights used in connection with the Land or the Improvements or as a
means of access thereto, whether now or hereafter owned or constructed or placed
upon or in the Land or Improvements and all existing and future privileges, rights,
franchises and tenements of the Land, including all minerals, oils, gas and other
commercially valuable substances which may be in, under or produced from any part of
the Land, and all water rights, rights of way, gores or strips of land, and any land lying in
the streets, ways, and alleys, open or proposed, in front of or adjoining the Land and
Improvements (collectively, "Appurtenances");
c. All machinery, equipment, fixtures, goods and other personal property of
the Trustor, whether moveable or not, now owned or hereafter acquired by the Trustor
and now or hereafter located at or used in connection with the Land, the Improvements
or Appurtenances, and all improvements, restorations, replacements, repairs, additions
or substitutions thereto (collectively, "Equipment");
d. All existing and future leases, subleases, licenses, and other agreements
relating to the use or occupancy of all or any portion of the Land or Improvements
(collectively, "Leases"), all amendments, extensions, renewals or modifications thereof,
and all rent, royalties, or other payments which may now or hereafter accrue or
otherwise become payable thereunder to or for the benefit of Trustor, including but not
limited to security deposits (collectively, "Rents");
e. All insurance proceeds and any other proceeds from the Land,
Improvements, Appurtenances, Equipment, Leases, and Rents, including without
limitation, all deposits made with or other security deposits given to utility companies, all
claims or demands relating to insurance awards which the Trustor now has or may
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c
hereafter acquire, including all advance payments of insurance premiums made by
Trustor, and all condemnation awards or payments now or later made in connection
with any condemnation or eminent domain proceeding ("Proceeds");
f. All revenues, income, rents, royalties, payments and profits produced by
the Land, Improvements, Appurtenances and Equipment, whether now owned or
hereafter acquired by Trustor ("Gross Revenues");
g. All architectural, structural and mechanical plans, specifications, design
documents and studies produced in connection with development of the Land and
construction of the Improvements (collectively, "Plans"); and
h. All interests and rights in any private or governmental grants, subsidies,
loans or other financing provided in connection with development of the Land and
construction of the Improvements (collectively, "Financing").
All of the above-referenced interests of Trustor in the Land, Improvements,
Appurtenances, Equipment, Leases, Rents, Proceeds, Gross Revenues, Plans and
Financing as hereby conveyed to Trustee or made subject to the security interest herein
described are collectively referred to herein as the "Property."
2. Obligations Secured. This Deed of Trust is given for the purpose of securing
payment and performance of the following (collectively, the "Secured Obligations"): (i)
all present and future obligations of Trustor to Beneficiary under the Agency Documents
(defined below); (ii) all additional present and future obligations of Trustor to Beneficiary
under any other agreement or instrument acknowledged by Trustor (whether existing
now or in the future) which states that it is or such obligations are, secured by this Deed
of Trust; (iii) all obligations of Trustor to Beneficiary under all modifications,
supplements, amendments, renewals, or extensions of any of the foregoing, whether
evidenced by new or additional documents; and (iv) reimbursement of all amounts
advanced by or on behalf of Beneficiary to protect Beneficiary's interests under this
Deed of Trust or any other Agency Document. The DDA, the Regulatory Agreement,
and this Deed of Trust, as any of the foregoing instruments may be modified,
supplemented, amended, renewed, or extended, are herein after collectively referred to
as the "Agency Documents."
3. Assignment of Rents, Issues, and Profits. Trustor hereby irrevocably, absolutely,
presently and unconditionally assigns to Beneficiary the Rents, royalties, issues, profits,
revenue, income and proceeds of the Property. This is an absolute assignment and not
an assignment for security only. Beneficiary hereby confers upon Trustor a license to
collect and retain such Rents, royalties, issues, profits, revenue, income and proceeds
as they become due and payable prior to any Event of Default hereunder. Upon the
occurrence of any such Event of Default, Beneficiary may terminate such license
without notice to or demand upon Trustor and without regard to the adequacy of any
security for the indebtedness hereby secured, and may either in person, by agent, or by
a receiver to be appointed by a court, enter upon and take possession of the Property or
any part thereof, and sue for or otherwise collect such rents, issues, and profits,
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including those past due and unpaid, and apply the same, less costs and expenses of
operation and collection, including reasonable attorneys' fees, to any indebtedness
secured hereby, and in such order as Beneficiary may determine. Beneficiary's right to
the rents, royalties, issues, profits, revenue, income and proceeds of the Property does
not depend upon whether or not Beneficiary takes possession of the Property. The
entering upon and taking possession of the Property, the collection of such rents,
issues, and profits, and the application thereof as aforesaid, shall not cure or waive any
default or notice of default hereunder or invalidate any act done pursuant to such notice.
If an Event of Default occurs while Beneficiary is in possession of all or part of the
Property and/or 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 hereunder.
Regardless of whether or not Beneficiary, in person or by agent, takes actual
possession of the Land or the Improvements, Beneficiary shall not be deemed to be a
"mortgagee in possession," shall not be responsible for performing any obligation of
Trustor under any Lease, shall not be liable in any manner for the Property, or the use,
occupancy, enjoyment or operation of any part of it, and shall not be responsible for any
waste committed by Trustor, lessees or any third parties, or for dangerous or defective
condition of the Property or any negligence in the management, repair or control of the
Property. Absent Beneficiary's written consent, Trustor shall not accept prepayment of
Rents for any rental period exceeding one month.
4. Security Agreement. Trustor intends 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. To the extent that any Property 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 to secure payment and performance of the Secured
Obligations. This Deed of Trust constitutes a security agreement under the California
Uniform Commercial Code, as amended or recodified from time to time (the "UCC"),
covering all such Property. To the extent such Property is not real property
encumbered by the lien granted above, and is not absolutely assigned by the
assignment set forth above, Trustor intends that such Property 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.
5. Financing Statements. Pursuant to the UCC, Trustor, as debtor, hereby
authorizes Beneficiary, as secured party, to file such financing statements and
amendments thereof and such continuation statements with respect thereto as
Beneficiary may deem appropriate to perfect and preserve Beneficiary's security interest
in the Property and Rents, without requiring any signature or further authorization by
Trustor. If requested by Beneficiary, 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. If any financing statement or other
document is filed in the records normally pertaining to personal property, that filing shall
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not 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
estate encumbered by this Deed of Trust irrespective 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 not 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 any 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.
6. Fixture Filing. This Deed of Trust is intended to be and constitutes a fixture filing
pursuant to the provisions of the UCC with respect to all of the Property constituting
fixtures, is being recorded as a fixture financing statement and filing under the UCC,
and covers property, goods and equipment which are or are to become fixtures related
to the Land and the Improvements. Trustor covenants and agrees that this Deed of
Trust is to be filed in the real estate records of Riverside County and shall also operate
from the date of such filing as a fixture filing in accordance with Section 9502 and other
applicable provisions of the UCC. This Deed of Trust shall also be effective as a
financing statement covering minerals or the like (including oil and gas) and accounts
subject to the UCC, as amended. Trustor shall be deemed to be the "debtor" and
Beneficiary shall be deemed to be the "secured party" for all purposes under the UCC.
7. Trustor's Representations, Warranties and Covenants; Rights and Duties of the
Parties.
7.1 Representations and Warranties. Trustor represents and warrants that:
(i) Trustor lawfully possesses and holds a fee simple interest in the Land and the
Improvements, (ii) Trustor has good and marketable title to all of the Property; (iii) other
than as limited by the Agency Documents, Trustor has the full and unlimited power, right
and authority to encumber the Property with this Deed of Trust and assign the Rents as
contemplated herein; (iv) subject only to encumbrances of record and senior liens
permitted pursuant to the Agency Documents, or otherwise approved in writing by
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Beneficiary ("Permitted Encumbrances"), this Deed of Trust creates a valid lien on
Trustor's entire interest in the Property; (v) except with respect to Permitted
Encumbrances, Trustor will hold a fee interest in the Improvements Trustor will cause to
be constructed on the Land free and clear of all deeds of trust, mortgages, security
agreements, reservations of title or conditional sales contracts, (vi) there is no financing
statement affecting the Property on file in any public office other than as disclosed in
writing to Beneficiary; and (vii) the correct address of Trustor's chief executive office is
specified in Section 10.2.
7.2 Condition of Properly. Trustor represents and warrants that except as
disclosed to Beneficiary in writing, as of the date hereof: (i) Trustor has not received
any notice from any governmental authority of any threatened or pending zoning,
building, fire, or health and safety code violation, or violation of other governmental
regulations concerning the Property that has not previously been corrected, and except
as disclosed to Beneficiary in writing, to Trustor's knowledge, no condition on the Land
violates any health, safety, fire, environmental, building, or other federal, state or local
law, ordinance or regulation, (ii) there are no threatened or pending actions, suits, or
administrative proceedings against or affecting the Property or any portion thereof or the
interest of Trust or in the Property, and (iii) all information that Trustor has delivered to
Beneficiary, either directly or through Trustor's agents, is accurate and complete.
7.3 Authority. Trustor represents and warrants that this Deed of Trust and all
other documents delivered or to be delivered by Trustor in connection herewith: (a)
have been duly authorized, executed, and delivered by Trustor; (b) are binding
obligations of Trustor; and (c) do not violate the provisions of any agreement to which
Trustor is a party or which affects the Property. Trustor further represents and warrants
that there are no pending, or to Trustor's knowledge, threatened actions or proceedings
before any court or administrative agency which may adversely affect Trustor's
ownership of, or interest in, the Property or part thereof.
7.4 Payment and Performance of Secured Obligations. Trustor shall promptly
pay and perform all other obligations of Trustor arising in connection with the Secured
Obligations or the Agency Documents in accordance with the respective terms thereof.
7.5 Use of Grant Proceeds; Preservation and Maintenance of Property;
Compliance with Laws. Trustor covenants that it shall use the proceeds of the Grant
(the "Grant Proceeds") solely for purposes authorized by the Agency Documents.
Trustor covenants that it shall keep the Land and Improvements in good repair and
condition, and from time to time shall make necessary repairs, renewals and
replacements thereto so that the Property shall be preserved and maintained. Trustor
covenants that it shall comply with all federal, state and local laws, regulations,
ordinances and rules applicable to the Property and the Project, including without
limitation all applicable requirements of state and local building codes and regulations,
all applicable Prevailing Wage Laws, and all applicable statutes and regulations relating
to accessibility for the disabled. Trustor shall not remove, demolish or materially alter
any Improvement without Beneficiary's consent, shall complete or restore promptly and
in good and workmanlike manner any building, fixture or other improvement which may
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be constructed, damaged, or destroyed thereon, and shall pay when due all claims for
labor performed and materials furnished therefor. Trustor shall use the Land and the
Improvements solely for purposes authorized by the Agency Documents, shall not
commit or allow waste of the Property, and shall not commit or allow any act upon or
use of the Property which would violate any applicable law or order of any governmental
authority, nor shall Trustor bring on or keep any article on the Property or cause or allow
any condition to exist thereon which could invalidate or which would be prohibited by
any insurance coverage required to be maintained on the Property pursuant to the
Agency Documents.
7.6 Restrictions on Conveyance and Encumbrance; Acceleration. It shall be
an Event of Default hereunder if the Property or the Improvements, or any part thereof
or interest therein is sold, assigned, conveyed, transferred, hypothecated, leased,
licensed, or encumbered in violation of the Agency Documents or if any other Transfer
(as defined in the DDA) occurs in violation of the Agency Documents. If any such
Transfer shall occur in violation of such requirements, without limiting the provisions of
Section 8 hereof, all obligations secured by this Deed of Trust, irrespective of the
maturity dates of such obligations, shall at the option of Beneficiary, and without
demand, immediately become due and payable, subject to any applicable cure period.
7.7 Inspections; Books and Records. Beneficiary and its agents and
representatives shall have the right at any reasonable time upon reasonable notice to
enter upon the Land and inspect the Property to ensure compliance with the Agency
Documents. Trustor shall maintain complete and accurate books of account and other
records (including copies of supporting bills and invoices) adequate to document the
use of the Grant Proceeds and the operation of the Property, together with copies of all
written contracts, Leases and other instruments which affect the Property. The books,
records, contracts, Leases and other instruments shall be subject to examination and
inspection by Beneficiary at any reasonable time following at least two business days
prior notice.
7.8 Charges, Liens, Taxes and Assessments. Trustor shall pay before
delinquency all taxes, levies, assessments and other charges affecting the Property that
are (or if not paid may become) a lien on all or part of the Property. Trustor may, at
Trustor's expense, contest the validity or application of any tax, levy, assessment or
charge affecting the Property 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 reasonably be required
from time to time by Beneficiary; and provided further that Trustor shall timely make any
payment necessary to prevent a lien foreclosure, sale, forfeiture or loss of the Property.
7.9 Subrogation. Beneficiary shall be subrogated to the liens of all
encumbrances, whether released of record or not, which are discharged in whole or in
part by Beneficiary in accordance with this Deed of Trust.
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7.10 Hazard, Liability and Workers' Compensation Insurance. At all times
during the term hereof, at Trustor's expense, Trustor shall keep the Improvements and
personal property now existing or hereafter located on the Property insured against loss
by fire, vandalism and malicious mischief by a policy of standard fire and extended all-
risk insurance. The policy shall be written on a full replacement value basis and shall
name Beneficiary as loss payee as its interest may appear. The full replacement value
of the improvements to be insured shall be determined by the company issuing the
policy at the time the policy is initially obtained. Not more frequently than once every
two (2) years, either the Trustor or the Beneficiary shall have the right to notify the other
party that it elects to have the replacement value redetermined by the insurance
company. Subject to the rights of any senior lienholder, the proceeds collected under
any insurance policy may be applied by Beneficiary to any indebtedness secured
hereby and in such order as Beneficiary may determine, or at the option of Beneficiary,
the entire amount so collected or any part thereof may be released to Trustor for repair
or replacement of the Improvements. Such application or release shall not cure or
waive any default or notice of default hereunder or invalidate any act done pursuant to
such notice. Notwithstanding the foregoing, if any senior lienholder permits such
proceeds to be utilized for rebuilding or restoration of the Improvements, Beneficiary
shall approve the use of the proceeds for such purpose provided that sufficient
additional sources of financing are available to complete the repair or replacement of
the Improvements.
7.10.1 Trustor shall at all times duringthe term hereof, maintain insurance
coverage in the amounts and in accordance with the requirements specified in the
g q p
Regulatory Agreement, and shall otherwise comply with all requirements pertaining to
insurance specified in the Regulatory Agreement.
7.10.2 Trustor shall file with Beneficiary prior to the commencement of the
term hereof, certificates (or such other proof as Beneficiary may require, including
without limitation, copies of the required insurance policies) evidencing each of the
insurance policies and endorsements thereto as required by the Regulatory Agreement.
7.10.3 If any insurance policy required under the Regulatory Agreement is
canceled or the coverage provided thereunder is reduced, Trustor shall, within five (5)
days after receipt of written notice of such cancellation or reduction in coverage, but in
no event later than the effective date of cancellation or reduction, file with Beneficiary a
certificate showing that the required insurance has been reinstated or provided through
another insurance company or companies. Upon failure to so file such certificate,
Beneficiary may, without further notice and at its option, procure such insurance
coverage at Trustor's expense, and Trustor shall promptly reimburse Beneficiary for
such expense upon receipt of billing from Beneficiary.
7.11 Hazardous Materials. Trustor represents and warrants that except as
disclosed to Beneficiary in writing, as of the date hereof: (i) Trustor has received no
notice, warning, notice of violation, administrative complaint, judicial complaint, or other
formal or informal notice alleging that conditions on the Land are or have ever been in
violation of any Environmental Law or informing Trustor that the Land is subject to
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investigation or inquiry regarding Hazardous Materials on the Land or the potential
violation of any Environmental Law; and (ii) Trustor has disclosed to Beneficiary all
information, records, and studies in Trustor's possession or reasonably available to
Trustor relating to the Land concerning Hazardous Materials.
Trustor shall not cause or permit any Hazardous Material (as defined below) to
be brought upon, kept, stored or used in, on, under, or about the Land by Trustor, its
agents, employees, contractors or invitees except for incidental supplies ordinarily used
in connection with the construction, rehabilitation, repair, and operation of multi-family
residential developments and in compliance with all applicable laws, and shall not cause
any release of Hazardous Materials into, onto, under or through the Land. If any
Hazardous Material is discharged, released, dumped, or spilled in, on, under, or about
the Land and results in any contamination of the Land or adjacent property, or otherwise
results in the release or discharge of Hazardous Materials in, on, under or from the
Land, Trustor shall promptly take all actions at its sole expense as are necessary to
comply with all Environmental Laws (as defined below).
To the greatest extent permitted by law, Trustor shall indemnify, defend (with
counsel reasonably acceptable to Beneficiary), and hold Beneficiary and its elected and
appointed officials, officers, agents and employees (collectively, "Indemnitees")
harmless from and against any and all loss, claim, liability, damage, demand, judgment,
order, penalty, fine, injunctive or other relief, cost, expense (including reasonable fees
and expenses of attorneys, expert witnesses, and other professionals advising or
assisting Beneficiary), action, or cause of action (all of the foregoing, hereafter
individually "Claim" and collectively "Claims") arising in connection with the breach of
Trustor's covenants and obligations set forth in this Section 7.11 or otherwise arising in
connection with the presence or release of Hazardous Materials in, on, under, or from
the Property, provided Trustor's indemnification obligations under this Section shall not
apply to Claims to the extent arising from the gross negligence or willful misconduct of
the Indemnitees. The foregoing indemnity includes, without limitation, all costs of
investigation, assessment, containment, removal, remediation of any kind, and disposal
of Hazardous Materials, all costs of determining whether the Land is in compliance with
Environmental Laws, all costs associated with bringing the Land into compliance with all
applicable Environmental Laws, and all costs associated with claims for damages or
injury to persons, property, or natural resources.
Without limiting the generality of the foregoing, Trustor shall, at Trustor's own
cost and expense, do all of the following:
a. pay or satisfy any judgment or decree that may be entered against any
Indemnitee or Indemnitees in any legal or administrative proceeding incident to any
matters against which Indemnitees are entitled to be indemnified under this Deed of
Trust;
b. reimburse Indemnitees for any expenses paid or incurred in connection
with any matters against which Indemnitees are entitled to be indemnified under this
Deed of Trust; and
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c. reimburse Indemnitees for any and all expenses, including without
limitation out-of-pocket expenses and fees of attorneys and expert witnesses, paid or
incurred in connection with the enforcement by Indemnitees of their rights under this
Deed of Trust, or in monitoring and participating in any legal or administrative
proceeding.
Trustor's obligation to indemnify the Indemnitees shall not be limited or impaired
by any of the following or by any failure of Trustor to receive notice of or consideration
for any of the following: (i) any amendment or modification of any Agency Document;
(ii) any extensions of time for performance required by any Agency Document; (iii) any
provision in any of the Agency Documents limiting Beneficiary's recourse to property
securing the Secured Obligations, or limiting the personal liability of Trustor, or any
other party for payment of all or any part of the Secured Obligations; (iv) the accuracy or
inaccuracy of any representation and warranty made by Trustor under this Deed of
Trust or by Trustor or any other party under any Agency Document, (v) the release of
Trustor or any other person, by Beneficiary or by operation of law, from performance of
any obligation under any Agency Document; (vi) the release or substitution in whole or
in part of any security for the Secured Obligations; and (vii) Beneficiary's failure to
properly perfect any lien or security interest given as security for the Secured
Obligations.
The provisions of this Section 7.11 shall be in addition to any and all other
obligations and liabilities that Trustor may have under applicable law, and each
Indemnitee shall be entitled to indemnification under this Section without regard to
whether Beneficiary or that Indemnitee has exercised any rights against the Property or
any other security, pursued any rights against any guarantor or other party, or pursued
any other rights available under any Agency Document or applicable law. The
obligations of Trustor to indemnify the Indemnitees under this Section shall survive any
repayment or discharge of the Secured Obligations, any foreclosure proceeding, any
foreclosure sale, any delivery of any deed in lieu of foreclosure, and any release of
record of the lien of this Deed of Trust.
Without limiting any of the remedies provided in this Deed of Trust, Trustor
acknowledges and agrees that each of the provisions in this Section 7.11 is an
environmental provision (as defined in Section 736(f)(2) of the California Code of Civil
Procedure) made by Trustor relating to real property security (the "Environmental
Provisions"), and that Trustor's failure to comply with any of the Environmental
Provisions will be a breach of contract that will entitle Beneficiary to pursue the
remedies provided by Section 736 of the California Code of Civil Procedure ("Section
736") for the recovery of damages and for the enforcement of the Environmental
Provisions. Pursuant to Section 736, Beneficiary's action for recovery of damages or
enforcement of the Environmental Provisions shall not constitute an action within the
meaning of Section 726(a) of the California Code of Civil Procedure or constitute a
money judgment for a deficiency or a deficiency judgment within the meaning of
Sections 580a, 580b, 580d, or 726(b) of the California Code of Civil Procedure.
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OAK #4813-6973-6294 v4
"Hazardous Materials" means any substance, material or waste which is or
becomes regulated by any federal, state or local governmental authority, and includes
without limitation (i) petroleum or oil or gas or any direct or indirect product or by-
product thereof; (ii) asbestos and any material containing asbestos; (iii) any substance,
material or waste regulated by or listed (directly or by reference) as a "hazardous
substance", "hazardous material", "hazardous waste", "toxic waste", "toxic pollutant",
"toxic substance", "solid waste" or "pollutant or contaminant" in or pursuant to, or
similarly identified as hazardous to human health or the environment in or pursuant to,
the Toxic Substances Control Act [15 U.S.C. Section 2601, et seq.]; the Comprehensive
Environmental Response, Compensation and Liability Act [42 U.S.C. Section 9601, et
seq.], the Hazardous Materials Transportation Authorization Act [49 U.S.C. Section
5101, et seq.], the Resource Conservation and Recovery Act [42 U.S.C. Section 6901,
et seq.], the Federal Water Pollution Control Act [33 U.S.C. Section 1251], the Clean Air
Act [42 U.S.C. Section 7401, et seq.], the California Underground Storage of Hazardous
Substances Act [California Health and Safety Code Section 25280, et seq.], the
California Hazardous Substances Account Act [California Health and Safety Code
Section 25300, et seq.], the California Hazardous Waste Act [California Health and
Safety Code Section 25100, et seq.], the California Safe Drinking Water and Toxic
Enforcement Act [California Health and Safety Code Section 25249.5, et seq.], and the
Porter-Cologne Water Quality Control Act [California Water Code Section 13000, et
seq.], as they now exist or are hereafter amended, together with any regulations
promulgated thereunder; (iv) any substance, material or waste which is defined as such
or regulated by any "Superfund" or "Superlien" law, or any Environmental Law; or (v)
any other substance, material, chemical, waste or pollutant identified as hazardous or
toxic and regulated under any other federal, state or local environmental law, including
without limitation, asbestos, polychlorinated biphenyls, petroleum, natural gas and
synthetic fuel products and by-products.
"Environmental Law" means all federal, state or local statutes, ordinances,
rules, regulations, orders, decrees, judgments or common law doctrines, and provisions
and conditions of permits, licenses and other operating authorizations regulating, or
relating to, or imposing liability or standards of conduct concerning (i) pollution or
protection of the environment, including natural resources; (ii) exposure of persons,
including employees and agents, to any Hazardous Material (as defined above) or other
products, raw materials, chemicals or other substances; (iii) protection of the public
health or welfare from the effects of by-products, wastes, emissions, discharges or
releases of chemical substances from industrial or commercial activities; (iv) the
manufacture, use or introduction into commerce of chemical substances, including
without limitation, their manufacture, formulation, labeling, distribution, transportation,
handling, storage and disposal; or (iv) the use, release or disposal of toxic or hazardous
substances or Hazardous Materials or the remediation of air, surface waters,
groundwaters or soil, as now or may at any later time be in effect, including but not
limited to the Toxic Substances Control Act [15 U.S.C. 2601, et seq.]; the
Comprehensive Environmental Response, Compensation and Liability Act [42 U.S.C.
Section 9601, et seq.], the Hazardous Materials Transportation Authorization Act [49
U.S.C. Section 5101, et seq.], the Resource Conservation and Recovery Act [42 U.S.C.
6901, et seq.], the Federal Water Pollution Control Act [33 U.S.C. Section 1251], the
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OAK #9813-6973-6299 v9
Clean Air Act [42 U.S.C. Section 7401, et seg.], the California Underground Storage of
Hazardous Substances Act [California Health and Safety Code Section 25280, et seg.],
the California Hazardous Substances Account Act [California Health and Safety Code
Section 25300, et seg.], the California Hazardous Waste Act [California Health and
Safety Code Section 25100, et seg.], the California Safe Drinking Water and Toxic
Enforcement Act [California Health and Safety Code Section 25249.5, et seg.], and the
Porter-Cologne Water Quality Control Act [California Water Code Section 13000, et
seg.], as they now exist or are hereafter amended, together with any regulations
promulgated thereunder.
7.12 Notice of Claims; Defense of Security; Reimbursement of Costs.
a. Notice of Claims. Trustor shall provide written notice to Beneficiary of any
uninsured or partially uninsured loss affecting the Property through fire, theft, liability, or
property damage in excess of an aggregate of Fifty Thousand Dollars ($50,000) within
five business days of the occurrence of such loss. Trustor shall ensure that Beneficiary
shall receive timely notice of, and shall have a right to cure, any default under any other
financing document or other lien affecting the Property and shall use best efforts to
ensure that provisions mandating such notice and allowing such right to cure shall be
included in all such documents. Within three (3) business days of Trustor's receipt
thereof, Trustor shall provide Beneficiary with a copy of any notice of default Trustor
receives in connection with any financing document secured by the Property or any part
thereof.
b. Defense of Security. At Trustor's sole expense, Trustor shall protect,
preserve and defend the Property and title to and right of possession of the Property,
the security of this Deed of Trust and the rights and powers of Beneficiary and Trustee
created under it, against all adverse claims.
c. Compensation; Reimbursement of Costs. Trustor agrees to pay all
reasonable fees, costs and expenses charged by Beneficiary or Trustee for any service
that Beneficiary or Trustee may render in connection with this Deed of Trust, including
without limitation, fees and expenses related to provision of a statement of obligations
or related to a reconveyance. 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 without
limitation any rights or remedies afforded to Beneficiary or Trustee or both of them
under Sections 7.18 and 8.2, whether or not any lawsuit is filed, or in defending any
action or proceeding arising under or relating to this Deed of Trust, including reasonable
attorneys' fees and other legal costs, costs of any disposition of the Property under the
power of sale granted hereunder or any judicial foreclosure, and any cost of evidence of
title.
d. Notice of Changes. Trustor shall give Beneficiary prior written notice of
any change in the address of Trustor and the location of any Property, including books
and records pertaining to the Property.
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7.13 Indemnification. To the greatest extent permitted by law, Trustor shall
indemnify, defend (with counsel reasonably acceptable to Beneficiary), and hold
harmless the Trustee and the Indemnitees (as defined in Section 7.11) from and against
all Claims arising directly or indirectly in any manner in connection with or as a result of
(a) any breach of Trustor's covenants under any Agency Document, (b) any
representation by Trustor in any Agency Document which proves to be false or
misleading in any material respect when made, (c) injury or death to persons or damage
to property or other loss occurring on the Land or in any improvement located thereon,
whether caused by the negligence or any other act or omission of Trustor or any other
person or by negligent, faulty, inadequate or defective design, building, construction or
maintenance or any other condition or otherwise, (d) any claim, demand or cause of
action, or any action or other proceeding, whether meritorious or not, brought or
asserted against any Indemnitee which relates to or arises out of the Property, or any
Agency Document or any transaction contemplated thereby, or any failure of Trustor to
comply with all applicable state, federal and local laws and regulations applicable to the
Property, except to the extent arising from the gross negligence or willful misconduct of
the Indemnitees. The obligations of Trustor under this Section shall be secured by this
Deed of Trust. Notwithstanding any contrary provision contained herein, the obligations
of Trustor under this Section shall survive any foreclosure proceeding, any foreclosure
sale, any delivery of a deed in lieu of foreclosure, and any release or reconveyance of
this Deed of Trust.
7.14. Limitation of Liability. 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 Trustor, the lessees of the Property or
any third parties, or any dangerous or defective condition of the Property; or (iv) any
loss sustained by Trustor or any third party resulting from any act or omission of
Beneficiary in managing the Property after an Event of Default, except to the extent the
loss is caused by the willful misconduct or gross negligence of Beneficiary. Trustor
hereby expressly waives and releases all liability of the types described in this Section
7.14 and agrees that Trustor shall assert no claim related to any of the foregoing
against Beneficiary.
7.15 Condemnation Proceeds. Subject to the rights of any senior lienholders,
any award of damages in connection with any condemnation for public use of, or injury
to the Property or any part thereof is hereby assigned and shall be paid to Beneficiary
who may apply such moneys to any indebtedness secured hereby in such order as
Beneficiary may determine, or at the option of Beneficiary the entire amount so
collected or any part thereof may be released to Trustor. Such application or release
shall not cure or waive any default or notice of default hereunder or invalidate any act
done pursuant to such notice.
7.16 Release, Extension, Modification. At any time and from time to time,
without liability therefor and without notice, upon written request of Beneficiary and
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presentation of this Deed of Trust, Trustee may release or reconvey all or any part of
the Property, consent to the making of any map or plat of the Land or part thereof, join
in granting any easement or creating any restriction affecting the Property, or join in any
extension agreement or other agreement affecting the lien or charge hereof. At any
time and from time to time, without liability therefor and without notice, Beneficiary may
(i) release any person liable for payment of any Secured Obligation, (ii) extend the time
for payment or otherwise alter the terms of payment of any Secured Obligation; (iii)
accept additional real or personal property of any kind as security for any Secured
Obligation, or (iv) substitute or release any property securing the Secured Obligations.
7.17 Reconveyance. Upon written request of Beneficiary stating that all of the
Secured Obligations have been paid in full, and upon surrender of this Deed of Trust,
Trustee shall reconvey, without warranty, the Property or so much of it as is then held
under this Deed of Trust. The recitals in any reconveyance executed under this Deed of
Trust of any matters or facts shall be conclusive proof of the truthfulness thereof.
Trustor shall pay all fees of Trustee and all recordation fees related to such
reconveyance.
7.18 Cure; Protection of Security. Either Beneficiary or Trustee may cure any
breach or default of Trustor if Trustor fails to do so within the applicable cure period, 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 which it may in its sole 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 which
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, such judgment of Beneficiary or Trustee to be
conclusive as among Beneficiary, Trustee and Trustor; obtaining insurance and/or
paying any premiums or charges for insurance required to be carried hereunder;
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 7.18 either with or without giving notice, except for notices required under
applicable law. Any amounts disbursed by Beneficiary pursuant to this paragraph shall
become additional indebtedness secured by this Deed of Trust.
7.19 Limited Partners Right to Cure. The limited partners of Trustor shall have
the right to cure any default of Trustor hereunder upon the same terms and conditions
afforded to Trustor. Beneficiary shall provide any notice of default hereunder to such
parties concurrently with the provision of such notice to Trustor.
8. Default and Remedies.
8.1 Events of Default. Trustor acknowledges and agrees that an Event of
Default shall occur under this Deed of Trust upon the occurrence of any one or more of
the following events:
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OAK #4813-6973-6294 v4
a. Beneficiary's declaration of an Event of Default under any Agency
Document, subject to the expiration of any applicable cure period set forth in such
document;
b. Trustor fails to perform any monetary obligation which arises under
this Deed of Trust or any other Agency Document, and does not cure that failure within
ten (10) days following written notice from Beneficiary or Trustee;
c. If Trustor's interest in the Property or any part thereof is voluntarily
or involuntarily sold, transferred, leased, encumbered, or otherwise conveyed in
violation of Section 7.6 hereof or if any other Transfer occurs in violation of the Agency
Documents;
d. Trustor fails to maintain the insurance coverage required hereunder
and fails to cure such default within five (5) days, or Trustor otherwise fails to comply
with the requirements of Section 7.10 hereof and Trustor fails to cure such default within
the applicable time specified in Section 7.10;
e. Subject to Trustor's right to contest such charges as provided
herein, Trustor fails to pay taxes or assessments due on the Land or the Improvements
or fails to pay any other charge that may result in a lien on the Land or the
Improvements, and Trustor fails to cure such default within twenty (20) days of the date
of delinquency, but in all events prior to the date upon which the holder of any such lien
has the right to pursue foreclosure thereof;
f. Any representation or warranty of Trustor contained in or made in
connection with this Deed of Trust or in any other Agency Document, or made in
connection with the execution and delivery of any certificate or statement furnished by
or on behalf of Trustor in connection with the Grant proves to have been false or
misleading in any material adverse respect when made;
g. If, pursuant to or within the meaning of the United States
Bankruptcy Code or any other federal or state law relating to insolvency or relief of
debtors ("Bankruptcy Law"), Trustor or any general partner thereof (i) commences a
voluntary case or proceeding; (ii) consents to the entry of an order for relief against
Trustor or any general partner thereof in an involuntary case; (iii) consents to the
appointment of a trustee, receiver, assignee, liquidator or similar official for Trustor or
any general partner thereof; (iv) makes an assignment for the benefit of its creditors; or
(v) admits in writing its inability to pay its debts as they become due;
h. If a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that (i) is for relief against Trustor or any general partner thereof in
an involuntary case, (ii) appoints a trustee, receiver, assignee, liquidator or similar
official for Trustor or any general partner thereof or substantially all of such entity's
assets, (iii) orders the liquidation of Trustor or any general partner thereof, or (iv) issues
or levies a judgment, writ, warrant of attachment or similar process against the Property
15
OAK #4813-6973-6294 v4
or the Project or any part thereof, and in each case the order or decree is not released,
vacated, dismissed or fully bonded within sixty (60) days after its issuance;
The holder of any other debt instrument secured by a mortgage or
deed of trust on the Property or part thereof declares an event of default thereunder and
exercises a right to declare all amounts due under that debt instrument immediately due
and payable, subject to the expiration of any applicable cure period set forth in such
holder's documents; or
j. Trustor fails to perform any obligation arising under this Deed of
Trust other than one enumerated in this Section 8.1, and does not cure that failure
either within ten (10) days after written notice from Beneficiary or Trustee in the event of
a monetary default, or within thirty (30) days after such written notice in the event of a
nonmonetary default, provided that in the case of a nonmonetary default that in
Beneficiary's reasonable judgment cannot reasonably be cured within thirty (30) days,
an Event of Default shall not arise hereunder if Trustor commences to cure such default
within thirty (30) days and thereafter prosecutes such cure to completion with due
diligence and in good faith and in no event later than ninety (90) days following receipt
of notice of default.
8.2 Remedies. Subject to the applicable notice and cure provisions set forth
herein, 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, and may exercise any
one or more or all, of the remedies set forth in any Agency Document, and any other
remedy existing at law or in equity or by statute. All of Beneficiary's rights and remedies
shall be cumulative, and the exercise of any one or more of them shall not constitute an
election of remedies. Beneficiary shall be entitled to collect all expenses incurred in
pursuing the remedies provided hereunder, including without limitation reasonable
attorneys' fees and costs.
a. Acceleration. Beneficiary may declare any or all of the Secured
Obligations, including without limitation all sums payable under this Deed of Trust, to be
due and payable immediately.
b. Receiver. Beneficiary may apply to any court of competent
jurisdiction for, and obtain appointment of, a receiver for the Property.
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 may also do any and all other things in connection with those actions that
Beneficiary may in its sole discretion consider necessary and appropriate to protect the
security of this Deed of Trust. Such other things may include: taking and possessing
copies of all of Trustor's or the then owner's books and records concerning the Property;
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; collecting and receiving any payment of money owing to Trustor; completing any
unfinished construction; and/or contracting for and making repairs and alterations. If
16
OAK #4813-6973-6294 v4
Beneficiaryso requests, Trustor shall assemble all of the Property that has been
q p Y
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 to perform such acts and execute such documents as Beneficiary in its sole
discretion may consider to be appropriate in connection with taking these measures,
including endorsement of Trustor's name on any instruments.
d. UCC Remedies. Beneficiary may exercise any or all of the
remedies granted to a secured party under the UCC.
e. 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
foreclosure of mortgages on real property and/or to obtain specific enforcement of any
of the covenants or agreements of this Deed of Trust.
f. 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.
8.3 Power of Sale. If Beneficiary elects to invoke the power of sale hereby
granted, Beneficiary shall execute or cause the Trustee to execute a written notice of
such default and of its election to cause the Property to be sold to satisfy the obligations
hereof, and shall cause such notice to be recorded in the office of the Recorder of each
County wherein the Property or some part thereof is situated as required by law and this
Deed of Trust.
Prior toublication of the notice of sale, Beneficiarydeliver
p shall Ito Trustee this
Deed of Trust, together with a written request for the Trustee to proceed with a sale of
the Property, pursuant to the provisions of law and this Deed of Trust.
Notice of sale having been given as then required by law, and not less than the
time then required by law having elapsed after recordation of such notice of default,
Trustee, without demand on Trustor, shall sell the Property at the time and place fixed
by it in the notice of sale, either as a whole or in separate parcels and in such order as it
may determine, at public auction to the highest bidder for cash in lawful money of the
United States, payable at time of sale. Trustee may, and at Beneficiary's request shall,
postpone sale of all or any portion of the Property by public announcement at such time
and place of sale, and from time to time thereafter may postpone such sale by public
announcement at the time and place fixed by the preceding postponement. Trustee
shall deliver to the purchaser its deed conveying the property so sold, but without any
covenant or warranty, express or implied. The recitals in such deed of any matters or
facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustor,
Trustee, or Beneficiary, may purchase at such sale.
After deducting all costs, fees, and expenses of Trustee and of the trust hereby
created, including reasonable attorneys' fees in connection with sale, Trustee shall
17
OAK #4813-6973-6294 v4
apply the proceeds of sale to payment of all sums advanced or expended by Beneficiary
or Trustee under the terms hereof and all outstanding sums then secured hereby, and
the remainder, if any, to the person or persons legally entitled thereto.
Without limiting the generality of the foregoing, Trustor acknowledges and agrees
that regardless of whether or not a default has occurred hereunder, if an Event of
Default has occurred under the Agency Documents, and if in connection with such
Event of Default Beneficiary exercises its right to foreclose on the Property, then: (i)
Beneficiary shall be entitled to declare all amounts due under this Deed of Trust
immediately due and payable, and (ii) the proceeds of any sale of the Property in
connection with such foreclosure shall be used to pay all Secured Obligations.
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 permitted 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 7.12(c); and
b. Second, the remaining balance of all other Secured Obligations in
any order and proportions as Beneficiary in its sole discretion may choose.
8.4 Trustor's Right to Reinstate. Notwithstanding Beneficiary's acceleration of
the sums secured by this Deed of Trust, Trustor shall have the right to have any
proceedings begun by Beneficiary to enforce this Deed of Trust discontinued at any
time prior to five days before sale of the Property pursuant to the power of sale
contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this
Deed of Trust if: (a) Trustor pays Beneficiary all sums which would be then due under
the Agency Documents if the Secured Obligations had no acceleration provision; (b)
Trustor cures all breaches of any other covenants or agreements of Trustor contained in
this Deed of Trust; (c) Trustor pays all reasonable expenses incurred by Beneficiary and
Trustee in enforcing the covenants and agreements of Trustor contained in this Deed of
Trust, and in enforcing Beneficiary's and Trustee's remedies as provided herein,
including, but not limited to, reasonable attorney's fees; and (d) Trustor takes such
action as Beneficiary may reasonably require to assure that the lien of this Deed of
Trust, Beneficiary's interest in the Property and Trustor's obligation to pay the sums
secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure
by Trustor, this Deed of Trust and the obligations secured hereby shall remain in full
force and effect as if no acceleration had occurred.
9. Trustor's Waivers. To the fullest extent permitted by law, Trustor waives: (a) all
statutes of limitations as a defense to any action or proceeding brought against Trustor
by Beneficiary; (b) the benefit of all laws now existing or which may hereafter be
enacted providing for any appraisement, valuation, stay, extension, redemption or
18
OAK #4813-6973-6294 v4
moratorium; (c) all rights of marshalling in the event of foreclosure; and (d) all
presentments, demands for performance, notices of nonperformance, protests, notices
of protest, notices of dishonor, notices of acceptance of this Deed of Trust and of the
existence, creation, or incurring of new or additional indebtedness, and demands and
notices of every kind.
10. Miscellaneous Provisions.
10.1 Additional Provisions. The Agency Documents grant further rights to
Beneficiary and contain further agreements and affirmative and negative covenants by
Trustor which apply to this Deed of Trust and the Property.
10.2 Notices. Trustor requests that a copy of notice of default and notice of
sale be mailed to Trustor at the address set forth below. That address is also the
mailing address of Trustor as debtor under the UCC. Beneficiary's address set forth
below is the address for Beneficiary as secured party under the UCC. Except for any
notice required under applicable law to be given in another manner, all notices to be
sent pursuant to this Deed of Trust shall be made in writing, and sent to the parties at
their respective addresses specified below or to such other address as a party may
designate by written notice delivered to the other parties in accordance with this
Section. All such notices shall be sent by: (a) personal delivery, in which case notice
shall be deemed delivered upon receipt; (b) certified or registered mail, return receipt
requested, in which case notice shall be deemed delivered two (2) business days after
deposit, postage prepaid in the United States mail; or (c) nationally recognized
overnight courier, in which case notice shall be deemed delivered one (1) day after
deposit with such courier.
Beneficiary: City of Cathedral City
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
Attention: City Clerk
Trustor: A0685 Cathedral City, L.P.
2000 E. Fourth Street, Suite 205
Santa Ana, CA 92705
Attention: John F. Bigley
With a copy to:
Law Offices of Patrick R. Sabelhaus
1724 10th Street, Suite 110
Sacramento, CA 95811
Attention: Stephen A. Strain
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10.3 Binding on Successors. The terms, covenants and conditions of this
Deed of Trust shall be binding upon and inure to the benefit of the heirs, administrators,
executors, successors in interest, transferees, and assigns of the Trustor, Beneficiary
and Trustee; provided however this Section 10.3 does not waive the provisions of
Section 7.6.
10.4 Substitution of Trustee. Beneficiary may from time to time or at any time
substitute a trustee or trustees to execute the trust hereby created, and when any such
substitution has been filed for record in the office of the Recorder of Riverside County, it
shall be conclusive evidence of the appointment of such trustee or trustees, and such
new trustee or trustees shall succeed to all of the powers and duties of the Trustee
named herein.
10.5 Attorneys' Fees and Costs. In any action or proceeding to foreclose this
Deed of Trust or to enforce any right of Beneficiary or of Trustee, Trustor shall pay to
Beneficiary and Trustee all costs of such action or proceeding, including reasonable
attorneys' fees.
10.6 Governing Law; Severability; Interpretation. This Deed of Trust shall be
governed by the laws of the State of California without regard to principles of conflicts of
laws. Trustor agrees that any controversy arising under or in relation to this Deed of
Trust shall be litigated exclusivelyin state and federal courts and authorities with
9
jurisdiction in Riverside County, California. If any provision of this Deed of Trust is 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. The captions
used in this Deed of Trust are for convenience only and are not intended to affect the
interpretation or construction of the provisions herein contained. In this Deed of Trust,
whenever the context so requires, the singular number includes the plural.
10.7 Waiver, Modification and Amendment. Any waiver by Beneficiary of any
obligation of Trustor hereunder must 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. No amendment to or
modification of this Deed of Trust shall be effective unless and until such amendment or
modification is in writing, executed by Trustor and Beneficiary. Without limiting the
generality of the foregoing, Beneficiary's acceptance of payment of any sum secured
hereby after its due date shall not constitute a waiver by Beneficiary of its right either to
require prompt payment when due of all other sums so secured or to declare default for
failure so to pay.
10.8 Action by Beneficiary. Except as may be otherwise specifically provided
herein, whenever any approval, notice, direction, or consent by the Beneficiary is
required or permitted under this Agreement, such action shall be in writing, and such
action may be given, made or taken by Beneficiary's City Manager or by any person
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who shall have been designated by Beneficiary's City Manager, without further approval
by the governing board of Beneficiary.
10.9 Joint and Several Liability. If Trustor consists of more than one person or
entity, each shall be jointly and severally liable for the faithful performance of all of
Trustor's obligations under this Deed of Trust.
10.10 Time is of the Essence. Time is of the essence for each provision of this
Deed of Trust.
10.11 Partial Subordination to Extended Use Agreement. Trustor and the
California Tax Credit Allocation Committee may enter into a Regulatory Agreement (the
"TCAC Regulatory Agreement"), which constitutes the extended low-income housing
commitment described in Section 42(h)(6)(B) of the Internal Revenue Code, as
amended (the "Code"). In the event of a foreclosure of Beneficiary's interest under this
Deed of Trust or delivery by the Trustor of a deed in lieu thereof (collectively, a
"Foreclosure"), the following rule shall apply:
In the event of a Foreclosure, throughout the extended use
period specified in the TCAC Regulatory Agreement, with
respect to anyunit
that had been regulated by the TCAC
Regulatory Agreement, (i) none of the eligible tenants
occupying those units at the time of Foreclosure may be
evicted or their tenancy terminated (other than for good
cause, including but not limited to, the tenants' ineligibility
pursuant to Section 42 of the Code), (ii) nor may any rent be
increased except as otherwise permitted under Section 42 of
the Code.
SIGNATURES ON FOLLOWING PAGE.
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IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the
date first written above.
TRUSTOR:
A0685 Cathedral City, L.P., a California limited partnership
By: A0685 Cathedral City Holdings LLC, a California limited liability company
Its: Managing General Partner
By: Ikaika Ohana, a Hawaii nonprofit corporation
Its: Sole Member and Manager
By:
J. . Bi6V
Its: Secretary
By: A0685 Cathedral City Admin Holdings LLC, a California limited liability company
Its: Administrative General Partner
By:
J nF. Bid'-
Its: Manager
SIGNATURES MUST BE NOTARIZED.
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OAK #4813-6973-6294 v4
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 )
) ss
County of Dt—t€- )
On Me i(� , 2021 , before me, SAre,L J �j�
�c.CU , V, �ry l/C,
(Name of Notary)
notary public, personally appeared c3ii1 F.
: L
(3/ s
who proved to me on the basis of satisfactory evidence(3/Vey
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 certif d_ P ALTY OF PERJURY under the laws of the State of California that the
for;. . g .:ragrai h is true and correct.
h T E : my hang and official seal.
(Notary Signat•'re)
CESAR DELGADO
., - Notary Public-California
' - =^ Orange County
] � 'r9 Commission#2334228
7 " My Comm.Expires Sep 23_2024
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OAK #9813-6973-6299 v4
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 )
) ss
County of Y^4 ' )
On in4t6 , 20 , before me, SG/• .{�, S3 /1)04,ry,446,
L
(Name
of Nota )
notary public, personally appeared 1iIf\ c
ley
who proved to me on the basis of satisfactory evidence-fo 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 de 'aENAL' Y OF PERJURY under the laws of the State of California that the
forego' g p agraph is ue and correct.
WITH ES' y hand and official seal.
_ L
(Notary Signature) . - °'$ CESARDELGADO
.� Notary Public-California
'�^ Orange County
�►7
Commission#2334228
".•"" My Comm.Expires Sep 23,2024
24
OAK #9813-6973-6299 v9
4
Exhibit A
LAND
Real property in the City of Cathedral City, County of Riverside, State of California, described as follows:
PARCEL A:
PARCEL A OF LOT MERGER/ LOT LINE ADJUSTMENT NO. 2020-529 RECORDED JANUARY 25, 2021
AS INSTRUMENT NO. 2021-0048173 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA,
DESCRIBED AS FOLLOWS:
All of Lots 101 through 107 and a portion of Lot 108 inclusive as shown by Assessors Map No.46 on file in
Book 2 Page 3 of Assessor's Maps, in the Office of the County Recorder of Riverside County, in the City of
Cathedral City, State of California, lying within the Northwest quarter of the Southwest quarter of the
Northwest quarter of Section 16, Township 4 South, Range 5 East, San Bernardino Meridian, more
particularly described as follows:
COMMENCING at the Northeast Corner of Lot C as shown by Tract No. 26424 on file in Book 257 Pages
49 and 50 inclusive records of said County, said point also being the Southeast Corner of Lot 110 as
shown on said Assessor's Map;
THENCE along the North line of said Lot C of said Tract Map and South line of said Lot 110 and
subsequent Lots 109 and 108 of said Assessor's Map, North 89°27'13"West, a distance of 174.56 feet to
the TRUE POINT OF BEGINNING;
THENCE continuing along said line and South line of subsequent descending Lots 107 through 101
inclusive North 89°27'13"West, a distance of 447.85 feet to a point on the Easterly Sideline of Landau
Boulevard (40.00 foot half width Right of Way) as shown on said Assessor's Map said point also being the
Southwest corner of said Lot 101;
THENCE along said Easterly Sideline and West Lot line, North 00°08'23" East, a distance of 632.52 feet to
the Southerly Sideline of FrankNega Road (30.00 foot half width Right of Way) as shown on said
Assessor's Map said point also being the Northwest corner of said Lot 101;
THENCE along said Sideline and North line of said Lot 101 and subsequent Lots 102 through 108, South
89°34'59" East, a distance of 452.34 feet to aoint being169.90 feet distant from the Northeast Corner
P
of said Lot 110;
THENCE South 00°32'47"West, a distance of 633.52 feet to the TRUE POINT OF BEGINNING.
APN: 678-060-001 through 005, and 49, 50 and a portion of 52.
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OAK #4813-6973-6294 v4
•
PARCEL B:
PARCEL B OF LOT MERGER/ LOT LINE ADJUSTMENT NO. 2020-529 RECORDED JANUARY 25, 2021 AS
INSTRUMENT NO. 2021-0048173 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA,
DESCRIBED AS FOLLOWS:
Lots 109 and 110 and a portion of Lot 108 inclusive as shown by Assessors Map No. 46 on file in Book 2
Page 3 of Assessor's Maps, in the Office of the County Recorder of Riverside County, in the City of
Cathedral City, State of California, lying within the Northwest quarter of the Southwest quarter of the
Northwest quarter of Section 16, Township 4 South, Range 5 East, San Bernardino Meridian, more
particularly described as follows:
BEGINNING at the Northeast Corner of Lot C as shown by Tract No. 26424 on file in Book 257 Pages 49
and 50 inclusive records of said County, said point also being the Southeast Corner of Lot 110 as shown
on said Assessor's Map;
THENCE along the North line of said Lot C of said Tract Map and South line of said Lot 110 and
subsequent Lots 109 and 108 of said Assessor's Map, North 89°27'13"West, a distance of 174.56 feet;
THENCE North 00°32'47" East, a distance of 633.52 feet to a point on the Southerly Sideline of
Frank/Vega Road (30.00 foot half width Right of Way)as shown on said Assessor's Map and the North
line of said Lot 108 said point being 169.90 feet from the Northeast Corner of said Lot 110;
THENCE along said Southerly Sideline and North line of said Lot 108 and subsequent Lots 109 and 110,
South 89°34'59" East, a distance of 169.90 feet to the said Northeast corner of said Lot 110 said Corner
being on the Westerly line of Palm Springs Highlands Unit No. 3 on file in Book 37 Pages 77 and 78
inclusive records of said County;
THENCE along the East line of said Lot 110 of said Assessor's Map and West line of said Palm Springs
Highlands Map South 00°07'30"West, a distance of 633.92 feet to the TRUE POINT OF BEGINNING.
APN 678-060-51, 53, and a portion of 52.
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OAK #4813-6973-6294 v4