Leasehold Construction Deed of Trust with Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing 2006-0116914
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~~1 'i 2006-0116914
'RECORDED AT THE REQUEST OF I 1111111111111111111111111111111111111111111111111111111111111111111111'
CHICAGO TITLE CO. '. 7940
I FEB 17, 2006 11'34 AM
OFFWloL RECOFIC"O, ,
RECORDING REQUESTED BY I 3At.J [IIEI~O COUtH'[ F:EcnF:[IEF:":, OFFICE
AND WHEN RECORDED MAIL'tO'/ l:iF:EGOF:'1 ,I ':,MITH [OUI'll'1 REI-:UR[IER
FEE', 11 DO LII,"',.":, 4
Poway Redevelopment Agency ~1\ 1r F'~.I:.lE':;. ." [16 1
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11111111111111111111111111111111111111111111111111111111I11111111111111111111111
P 0 Box'789 , ' . , '?J .'.
Poway, California 92074-0789 U: v:> :
Attention. Agency ExecutivePirector ~t ~ :;!OO6-0116914
I'IJ.
Thlis document is exempt from the payment of arecordirlg-fee pursuant' to
Government Code. Section 27383
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'LEASEij:OLDCONSTRUCTIONDEED OF TRUST
WlTHABSOLUTE ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS LEASEHOLD CONSTRUCTION DEED,OF TRUST WITH ABSOLUTE
ASSIGNMENT OFl;EASES~n RENTS, SECURITY AGREEMENT AND FIXTURE
FILINC:C:I?eed of Trust"), made as,ofFebruary 14,2006, is enteredinto by and between
COMMUNrry'ROAD HOUSING ASSOCIATES, L.P;, a California limited partnership
("Trustor"); ,CHICAGO'TlTLECOMP ANY C'Trustee"),and the' POW AY REDEVELOPMENT
AGENCY;a public body, corporate and politic ("Beneficiary").
ARTICLE I. GRANT IN TRliST
1.1 GRANT For the purposes of and upol) the terms and conditions' in this Deed of I,
Trust, Trustor,irrevocably grants, conveys and assigns to Trustee, IN TRUST FOR THE B~NEFIT \
OPBENEFICIARY, WITH POWER OPSALE AND RlGHT OF ENTRY AND POSSESSION, all
'of Trustor's right, titie,and interest, whether now owned or hereafter acquired, in and to that certain
. .real property located in the City of Po way, County of San Diego, State, of California, described on
Exhibit'Aattached.hereto,(tlie"'Real Property"), inciuding"but;not)necessarily limited to,
(i) 'Trustor's leasehold interest in'the,Real Property, inciuding"blltriot limited to, that certain
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leasehold interest-created by that certain'Ground Lease da.te(\as QfFebruary 14,2006, by,and
between 13enefiCiary as Lessor; and Trustor as Lessee (the,"Ground Lease"); (ii)'all buildings'and
other improvements and fixturesriowCothereafter located ontlleReal Property, including"but not
limited',to; all apparatus, equipment, and appJiances used in the operation or occupancy of the Real
Property"it beingintended'bytJie parties that all such items shall be conclusively considered to be a
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part,oftlieReal:property, whether or notattached',oraffixed,to,the,RealProperty (collectively, the
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"Improvements"); (iii) <111 developmentrights or creditS,air.riglits; water, water rights and water
stocK,relatedtoithe;RealProperty; the Ground Lease oqhe,bpprovements (the. Real Property, the
Grourid Lease'and,the,Improvements are collectively referred to herein as'the "Property?:); (iv) all
minerals, oil an(\'gas, and,.other hydrocarbon substances in, on or underJhe Property, (v) all
appurtenarice~, easements; riglits ana rights of way appurtenant or r."'lated to the Property; (vi) all
interest or'estatewhich Trust()r may hereafter acquire in,any of.theproperty,descrihed above; and
(vii) all aaaitio_ns'll!1daccretions,to"ahd the proceeds, of, any ofthe'foregoing,(all.oftheforegoing
being collectively referfect,tojls,the "SubjeCt Property"). The listing oCspecific rights or property
shall not beintewreted asa liinitof general terms.
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1.2 ADDRESS. Th~subjectproperty is located at. Btl06 - 13426 Community Road,
Poway, California. Ho~ever,neither,thd'ailllte to,desigrtateian!addressnor any inaccuracy in the
address designated shall:affect the,validity'or priority of the lien'onhis Deed of Trust on the Subject
Property as described on Exhibit A,
ARTICLR2. OBLIGATIONS SECURED
2.1 OBLIGATION~~F;CURED Trustor makes this grant and assignment for the
purpose of securing the following 'obligati'ons, ("Secured. Obligations"):
a. Paymentlo,Beneficiiny of all sums'atany tim~.owingunder that certain
Promiss(lIyN6te ("Note") dated,asofOctober 25, 2005, as amended'by the First Amendment to
Disposition'andDevelopmeIlt Agreementand Promissory Note, dated'as of February 7,2006, in the
P.D!1cipill:amountofOrieMillioriFiVeHllndred Thousand Dollars;($.J,500,000) executed by
Comiii llriityHous ing IN orks,a Cal ifornia[1onprofit, corporatiori{'Origi nal. Deve I oper"),. and assigned
toTrustor, ~Ild payable to the order.ofBeneficiary, as lender; and
b Paymentandperrormance of all covenants: and obligations of Trustor under
thatcertain,"Disposition and DeveloPrnentAgreement" between Beneficiary arid Original Developer,
and-assigned to Trust<;lr, datedas,of Jlme28, 2005, as amended by the. First Amendment to
Disposition and Development AgreementandPromissory Note;.dated as of February 7, 2006; and
c. Payment and performance of all covenants and obligations of Trustor under
this:Deed ofTilIst; and
d. Payment and performance of all future,aClvallces and other obligations that the
then owner of alLor part of the:Slll:lj,ect 'Property may,agree t9pay and/or perform (whether as
principal, surety or guarantorJforthe benefit of Beneficiary, when'sllch future advance.or,obligation
is evidenced by a writing which,reciteii'that it is secured by this Deed of Trust; and
e. All modifications, extensions and renewals. of any of the obligations secured
hereby, however eVidenced, including, without limitation. (i) modifications of the req\lireCl principal
payment dates or interest payment'datesor both, as the case may be, deferring or, accelerating
payment dates wholly or partly;,or (ii)'modifications, exte!,sions oHenewals at a differenti'ate of
interestwhetlier or not in the case of a'.note, themodificaticm, extension or renewal is evidenced by:a
new, or additional promissory note 'or notes.
.2;2 OBLIGATIONS, The-term'''obligations'' isused herein in its broadest and most
comprehensive sense and shall bedeemeClto include,with(j]ltJimijation, all principal, interest,
prepayment charges (if, any), late charges, other charges, and loanifees at any time accruing or
assessed on any of the 'Secured Obligations.
2.3 INCORPORATION. All te.rhis o[the Secured Obligations and the documents
evidencing such obiigationsare incorporated herein by;thiFefere!1ce. Any and all persons or entities
who may have or acquire:anint<;rest in the Subject PropertY shail bedeemed.lo have notice of the
termsoftheSec:ured Obligations and to have notice, i[provided therein, that: (a) the Note may
permit'bortowing, repayment and re-borrowing sothai.repayments shall not reduce the amounts of
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the Secured:Obligations; and (b)therat~'ofirterest on one or more,Secured,Ohligations may vary
from iime io tillle.
ARTICLE 3. ASSIGNMENT OF LEASES AND RENTS
3.1 ASSIGNMENT Trustor hereby irrevocablY:issignsto Beneficiary, subject to the
rights of any senior lenders, and subjectto,any prior assignmenHo Trustor's lenders, all of Trustor's
right, title and.ii1ter~shn;,to a!1c1Under' (a) alUeases and subleases of the Subject Property or any
portionthe_reof, alllicenses;and,agteements relating to the management, leasing or operation of the
Subject Property or any portionthereof;;and,all other agreetpentsofany,kind relating to the use or
occupancy oftheSubject Property'orany'portion thereof, whether. now existing or entered into after
the date'hereof ("Leases"); and (o),the rents, issues,deposits'ancl profits:of the'Subject Property,
including, without limitation, all amou!1tspayableand allrights,and,benefits accruing to Trustor
under the Leases ("Payments"). The'terin "Leases" shall also include all guarantees of and security
for the lessees' performance thereunder; and all amendments, extensions, renewals or modifications
thereto which are pennitted hereunde~ This is a present an&absolute assignment, not an assignment
for security purposesOlily, and Beneftciary's right to the Leases and Payments is not contingent '
upon, and may be exercised without possession of, the Subject Property
3.2 GRANT OF'LJ!=ENSE. Beneficiary confers upon Trustor a license ("License"),
subject to' the rights of allY senior lendei's,andsubject to anyprior.]icense conferred upon Trustor's
lenders, to collect and Tetainthe:Paymentsas they become due an(!,p:lyable, until the occurrence of a
Default(as,hereinafter definedh lJpona Default, the License shiill be automatically revoked and
Beneficiary may collect. and apply the Payments pursuant to Section,6 4,without notice and without
taking possession of the Subject Property Trustor hereby irrevocably authorizes and directs,the
lessees under the Leases to rely upon and comply with 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'()f,myofthe lessees' undertakingsunderthe Leases, and the lessees
shall have norighi,or duty,to.inquireas to whether any Default has actually occurred or is then
existing hereunder. Trustor hereby,relieves the lessees from any liability to Trustor by reason of
relying upon and complying with'anysuch notice or demand'by Beneficiary
3.3 EFFECT'OF ASSIGNMENT The foregoing.irrevocable Assignment shall not
cause Beneficiary to be: (a) a mortgagee in possession, (b) responsible or liable for the control, care,
management or repair of the Subject' Property or for performing,.anj of the terms, agreements,
undertakings,. obligations, representations, warranties, covenants and conditions of the Leases; or
(c )responsibleor liable [or any \Vaste committed on.the Subject Property by the, lessees under any of
the Le,ases or any,6therparties;for'imy dangerous oEdefective condition of the Subject Property; or
for. any negligence in the management, upkeep, repair or control of,the.8ubjectProperty resulting in
loss or injury'or death to any Lessee, licensee" employee, invitee or other person or entity
Beneficia'i'y,shiill not. directly or indirectly be liable io Trustor or any other person or entity as a
consequence of: (i),thejexercisem failure to exercise any oMhe rights, remedies or powers granted
to Beneflciaryhere!lndenor (ii) thdailure or refusal of Beneficiary to perform or discharge any
obligation" duty orliability or'Trustor arising under the Leases.
3:4 REPRESEN,TATIONS AND WARRANTIES, Trustor represents and warrants
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that as ofthedaie ofthis',DeedofTrust there are no existing Leases.
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3.5 CbVENANJ:S: Trusior (;ovenants and, agrees at Trustor'sisole cost and expense to
.(a) perform theobljg~tto!1slQflessor containedinthe,Leases,and enforc'eby all availablerelT\edies
,performance by,theeJessees'oftheobligations'of the Iessees'contained'jnthe Leases;.(b) exercise
Trlistot's'bestefforts to lease all of:.the1hous,ing units witj1\n'the'Subjeet Property'at.all times upon the
cOlnpletionof construciion ofthe:Improvements; (c) deliver to Beneficiary fully executed,
'counterpart original(s),ofeach ande'very,'Lease ifrequestedto"do'so;and (d) execute andrecord such
additional assignments of any Lease9r, specific subordinatiOJ)s,()f any Lease to the Deed,ofTrust, in
form and substance acceptable to-Ben~ficiary, as Beneficiary may ieqiJest. Trustor shall not, without
Benef[ciary's,prior writtencohserit: '(i)enter into any Leases after the date ofthis Assignment except
leases.irithe ordinary,course'ofTrusior's businessafld on the lease formapproved'by Beneficiary;
(ii) execute a!1yother assignment relating to any of the Leases; (iii) discount any rent or other sums
due under theLeases'oi coileCt the:sarnein'advance, otherthan tocollectrent one (I) moilth in
advance ofthe time when it.becolT\es due; (iv) terminate,.modify'of amend any of the terms of the
Leases or'in any rnanl}er release ordischafge the lessees from any obligations thereunde.rexcept in
the ordinatycourseofTrustor's,hllsiness; (v) consent to any assignment. or subletting by any lessee;
or.(vi) subordinate:oragree to.suQord,inaleany oftheLeases to ahy.other deed of trust or
,encuml:Jranc~, except as requiredto,obtain [inancingfor the Subject.Property Anysuch attempted
action in violation ofthe provisions ofthis Section 3.5"shal\' be nllll and void. Without in any way
limiting' the-requirement of Beneficiary's consent hereunder, ailysurns..received by Trustor in
conside[a!ion o'fanytermiiiatioh.(or:the'release or discharge ohnylessee) modification or
ameizdniimt of any Lease shallheapplied io reduce the outstanding Secured Obligations and any
such'sums'received by Trustor shalI:be lierd in trust by Trustor for, such purpose.
,3:6 ESTOP.PELCERTIFICA TES. Within thirty (30) days ,after written,request by
Beneficiary, Tfustot:shall deli,ver to Beneficiary and to anyparty'designated,by Beneficiary estqppel
certificates executed by Trustoy"and,by each'ofthe lessees, in recordable fohn, certifying (if such be
the case ): ,(a) that the foregoing,assignment and the Leases are:in' full force and effect;,,(b) the date of
e~~h lessee'smost recentpaymentofrent; (c) that there are no defenses or offsets outstanding, or
statihg those Claimed ~yTrustoro.r1essees\lnder the foregoingassigiimeht or the,Leases,as the case
may be; and (d) any other. information reasonably requested by Beneficiary
ARTICLE 4. SECURITY AGREEMENT AND FIXTURE FILING
4.1 SECURITY INTEREST Trustor hereby grants and assigns'to Beneficiary, as of
the, effective date oftliisDeedofTrust; a security interest, to-secure paynlent.andperfof!l1ance:ofall
oftlie SecllredObligations,ih all o(ihe following describesLpersonal,property in which Trustor now
or-at anytime hereafter has any interest (colleCtively,.tlie"Collateral';):
AII;goods, building and otheimaterials,:supplies, work in process, equipment, machinery,
.fixtures; furniture, furnishings, signs and other personal property, wherever situated, which
are!orare,tmbeincorporated irito,:llsedin connection with"or appropriated for use thereon, (i)
.the:Real'Propefty described on ExhibitA atiachedhereto,and incorporated by reference
herein,(to'thtl"extent,lhe'samearenot effectively:rnade apart of the Real Property pursuant to
,S~ctioll' I Ia~ove)'or'(ii)the,improvements constructed or to be con~tructed on the Subject
Proj:ierty; aSidescribed ill'the Disposition and Development Agreement between Trustor and
Beneficiary; dated June 28, 2005 (which real property, and improvements are, pursuantto
~e(;tion II.iabove, collectively referred, to herein, along with the other property described in
Sectioiz,1 Labove, as' the Subject Property); together w.ithall.rents, issues, deposits and
profits ofthe,SubjectProperty (to the extent, ifany, they,are not subject to Article III); all
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inventory, accounts;, cash 'receipts;,dt:posit accounts, ?ccountsreceivable" contract rights,
general intangibl~s;,cha.!tel paper"instruments, documents"notes, drafts, letters of credit,
ins,urance,policies, insurance and"conclemnation awardsYand proceeds, any other rights to the
payment bfinoney, trade names, trademarks andlservi~,e'marks'arising from or related to the
Subje.ct Property or any'~l!s5nessnow orhereafteHonducted.thereon byTrustor; all permits
consents, approvals, licenses, autliorizations and,other'rightsgranted by, given by or obtained
from, ahy.governmentaLentity,wiih,respect to,the Subjf.ct Property; all ' deposits or other
security now or hereafter made with or given to titilitycornpanies by Trustor withrespectto
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th~'~ubject,'Pr?perty; all advance;payments of insurance premiums made'by Tnistorwith
respectto the Subject Property; all plans, drawings and specifications relating to the Subject
Pgmerty; a.llloa.n fimdsheld,by,Beneficiary, whether or not disbursed; all funds deposited
with,Beneficiary pTirstiantao,ahy loan agreement; all reserves; deferred payments, deposits,
accounts; refunds, cost'saVingsand.payments of any kind, ,related to the SUbject Property or
any portionthereof; to.getherwith all replacements aIid'.proceeds of, and additions and
accessions, to, im} oftl1e:f6regoing;'together with all books; records and files relating to any
.oftheforegoing.
As to ,all ofthe'above'describec1',personal'property which is or,.which hereafter becomes a "Iixture"
underapplicable,law; this Deed ofTnistconstitutes a security agreement and a fixture filing under
Sections,9105;'93J3 and 9402(6),gfihe California UnifonnCommerciaLCode, as amended,on
recodjfied 'from time to ti'ne; and is'acknowledged and agreed to be a "construction mortgage" under
~uchiSections. Trustoris,the "debtor" and Beneficiary is the "secured;party" Beneficiary's security
interest in the Collateralshall.be juniSlf'and subject to the prior security, interest of Trustor's lender(s)
for the Subject Property
,4;2 REPRESENTATIONS AND WARRANTIES Trustor represents ,and warrants
that: (a) Trustor.has, orwill have, good'title to the Collateral"(b) Trustorhasnot previously assigned
or encumbered the Collateral;"al!d;n,o financing statement covering,any '()f the Collateral has been
,cielivered't(j any other person Of:eritlt'Y'exceptto construction and permanent lenders approved by
Beneficiary; and (c) Trustor's principal place of business is located at the address shown,in,section
7.8.
4.3 RIGH,TS OF;BENEFICIARY In addition to Beneficiary's rightsasa "secured
party",under"the CalifomiaUnifotm Commercial Code, as amended or recodified from,time,to time
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("I,JC,G':), Beneficiary may"bllt shall not be obligated,t(),at'an)i'tiine'without notice andat the
;expenselofTrustor' (a) give notic'e,to!anyperson or entity of Beneficiary's rights hereunder and
enforce, such fights at lawgIiI). eCjuity; (b)'insure, protect"defeiid and prese.rVe'theCollateral or any
rights or interestsicifBeneficiary'therein; (c) inspect the Collateral;:and(d) endorse, collect and
receiveiany'righrtopaym.eni'.Qf:inoI).ey owing,to Trustor,under or:fr6in "the Collateral.
Nglwithstanding,th,e,above,,inlno:e'vent shall BenefiCiar,y'be deemed to have accepted any property
othenha:n cash in satisfaction of any obligation of Trustorto,Beneficiary.unless Beneficiary shall
make:an,exp~ss ;\yrit!en'~lection of said remedy under UCC S9S05, or other applicable law
4,;4 )~.IGRTS,OF BENEFICIARY ON DEFAUL T. Upon the occurrence of a Default
(hereimlfterdefiIied):iiridef:this'Deedof Trust, then in addition to all of Beneficiary's rights as a
"secured party'''under the UCC oroiherwise at law,
a. ~eneficia.ry,may (i) upon written notice, require Trustor. to assemble any or
all of the ' Collateral andmake,jfavailable to Beneficiary at a place designated by Beneficiary; (ii)
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without prior.notice, enterupon',the(Suoject Property or oth~r plac~ where any ofthe Collateral may
be located and take pos~essiollof;coJ.l~ct".sell, and dispose,ofiniy,6r all ofthe Collateral, and store
the same at locations acceptable to Beneficiary at Trustor's expense; (iii) sell"assign and deliver at
any place or in,anylawful manner all or any part of the' Co }lateraL and bid and become purchaser at
any'such sales; and
b. Beneficiary may, ,for the account of Trustor and,at Trustor's expense: (i)
operate, use, consume, selL or dispose of the Collaterahs ~eneficiary'deems appropriate for the
purpose ofperfornlingany or all onhe Secured Obligations; (ii) enter into any agreement,
compromise, or settlement, incluging,insurance claims, which Beneficiary may deem desirable or
proper with respect to any ofthe Collateral; and (iii) endorse' and deliver evidences of title for,and
receive,eriforce,and collect by legaLaction or othelWise, all indebtedness and obligations now or
hereafter owing .to' Trustor in connection with or on account of any or all of the Collateral.
No~ithstandingany other provision' hereof, Beneficiary shalInot be deemed to have accepted any
property'other than cash in satisfaction of any obligation qfTrustortoBeneficiary unless Trustor
shall make an express written election of said remedy underUee 99505, or other applicable law
4.5 POWEROF ATTORNEY Trustor hereby irrevocably appoints Bel1eficiary as
Trustor',s attomey-in'fact (suchagenc;y being coupled with an interest), and,as such attorney,in-fact
Beneficiary may, without the obligation to do so; in Beneficiary's name, or in the name of Trustor,
f' prepare,' execute',l!nd file orrecord fininic'ing statements, continuatiol1 statements, applications for
registration, and like papers necessary to'create, perfect or preserve any of Beneficiary's security
interests and rights in or to any ofthe Collateral, and, upon a Default hereunder, take any other:action
., required of,,Trustor; provided, however, thatBeneficiary as such attorney-in-fact shall be accountable
only.foYsuch funds as are actually received by Beneficiary
4.6 POSSESSION AND USE'OF COLLATERAL. Except as othelWise provided in
this Section;,so long as no,Default'exists"iJnder this Deed of Trust, Trustormay possess, use, move,
transfer or dispose ofitny ofthe,Cbllateral ih the ordinary course of Trustor's business and in
accordance with:the'Disposition and Development Agreement.
ARTlCLK5. RIGHTS AND DUTIES OF THE PARTIES
5.1 TITLE. Trustouepresents and warrants that; except'as disclosed to Beneficiary in a
writil1gwhichreferstothis warranty, Trustor lawfull:r holds. and possesses valid title to the Subject
Property witl1oufjirnitationon,the'righNoencumber(except for the Lessor's approval right for
encumbranceslsjJecifically setforth inthe:Ground Lease), a!1d that this Deed ofTrustis a first and
prior lien on theiSubjec;t Property
:;;2 TAXES'AND ASSESSMENTS. Subject to Trustor's right to in good faith contest
payment oftaxes;,Trust6Y'shallpay prior to delinquency.allfuxes;;assessments, levies and,charges
imposedby!anypulllicoLfluasi-pub]ic authority or utility company which (i) are or which may
beco}nej,,!,lien,upop,or,cause'a,lo'ssin'value of the Subject Property or any interest therein, or (ii) are
required:to.be jJaid by Trlistor pursuant to the Ground Lease. Trustor shall also pay prior to
delihquencyalltaxes, assessments; levies and charges imposed by any public authority upon
Belleficiary llyreason ofitsdhterest in any Secured Obligation or'in the Subject Property, or by
reason.ofany payrrientmade to Beneficiary pursuant to any Secured Obliga'tion, provided, however,
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Trustor shall,haveno oDligati6nio'pay taxeswhichmay be imposed from time to time upon
Beneficiary and whic,h are;measured by andimposed upon Beneficiaiy's,net income.
5.3' TAX AND. INSURANCE IMPOUI'1'DS, AtBeneficiary's option and upon its
demand, Trustor, shall, until an Secured Obligations have'been'paid in full, pay to Beneficiary
monthly"annualiy or as otherwise directed by Beneficiaryan,am6untestimated by Beneficiary to be
equal to (atall taxes,assessm~Dts'andleviesimposedby any,public or quasi-public authority or
utility,company which are orma)' become a lien upon the SubjectProperty (or which are required to
be paid by'Trustor pursuant to,the Ground Lease) and will become due focthe tax year during which
suchpaymentisso'directed; and(b),premiums for fire, other' hazard and mortgage insurance next
due. ffBeneficiarydeterinines that any amounts paid byTrustorareinsuffiCient for the payment in
full.ofsuchitaxes,'assessments,levies and/or insurance premiums; BenefiCiary shall notify Trustor of
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the increaseq amounts required to pay alL amounts due, whereupon Trustor shall pay to Beneficiary
within,thiitt(30) days thereaftebthe additional amount as stated"in Beneficiary's notice. All sums so
paid shall not bear interest,cexceptto the extent and in any minimum amount required bylaw;'.and
Beneficiary shall, unless Trustoris,othetwise in Default hereunder or under any Secured Obligation,
apply said'funds',to the payment of, or. atthe sole option of Beneficiary release said funds to Trustor
for the application to and paymen!,of,such sums, taxes, assessments; levies, charges, and insurance
premiUlJls. Upon Default by Tnist6thereunder or under any Secur~d!Obligation, Beneficiary may
applyall,orany part of said sumsto:!any Secured Obligation and/ofto cure such Default, in which
event Trustor shall be,required'torestc:ire alL amounts so applied, aswell as to cure any other events
or conditions of Default not cured ,by such applicaiion, Upon'assignment of this Deed of Trust,
Beneficiaiyishall have the right to'assignall amounts cc:illectechhd in, its possession to its assignee
whereupon,Beneficiary and its Tnistee;shall be released from allliilbility with respect thereto
\vithinninety,five (95) days followilW,full repayment ofthe Secured Obligations (other than full
. repaymentofthe Secured Oliligaiii:m,s as.aconsequence of aforecloslire or conveyance in lieu of
foreclosure ofthe'liel!s'andsecuiity,.iiiterests securing the Secured Obligations) or at such earlier time
as.Beneficiary may elect, the balance of all amounts collected. and in Beneficiary's possession shall
be paid to Trustor and no other paity shall have any right or claim thereto
5.4 PERFORM4-~,CE,OF SECUREDOBLIGA TIONS. Trustor shall promptly pay
and perform each Secured Obligation' when due.
55 LIENS, ENCuMB~NCES AND CHARGES. Trustor shall immediately
discharge, any lien notapPfoved'by,Beneficiary in writing t1jat has,or may attain priority overthis
Deed of Trust;, subject to the requirements of the Dispositionand'Development Agreement and
Ground'Leasewithrespect to mechanic',s liens. Trustorshall'paywhen due all obligations,secured
by or reducible to liens and.enclitribranceswhich shall now' or hereafter encumber or appear to
encumber all or any part of the Subject Property or any interest therein, whether, senior or subordinate
hereto.
5.6 DAMAGES; INSURANCE AND CONDEMNATION PROCEEDS.
a. Subject to the rights of any seniorTenders, the following (whether now
existing or hereafterarising)'arealrabsolutely andirrevocabiy'assigiIedby Trustor to Beneficiary
and,atthe requestofBerieficiary, shall be paid directly to, Beneficiary' (i) all awards of damages and
all other compensation payable directly or indirectly by reason of a condemnation or proposed
condemnation.for public or private use affecting all or any part of, or any interest in, the Subject
Property; (ii) all,otherclaims and awards for damages to, or decrease in value of, all or any part of, or
7
DOCSOCll152291 v31022345'0081
. .
794tl
any interestin, the Subject Property; (iii) all proceeds of any:insurance,policies payable by reason of
loss'sustained'to aILorjanypaIt'oHheS~bject Property; and,(iv) all interest which may accrue on any
of the foregojng. Subjectto applicable;Jaw, and without regard to any requitementcontained in
SectionS 7(d), Beneficiary"mayat its discretion ,apply all or,a,11yofthe proceeqs it receives to its
expenses in settling; .prosecuting.or;d~fel{ding any claim and may apply the balance to the Secured
Obligations inanyorder, and/or Beneficiary may release,alLorany part of the proceeds to Trustor
l.fpim any conditions Beneficiary may impose. Beneficiary may commence, appear in, defend or
prosecute.,any assigned claiW of'ac!ion and'mayadjust, cOIT)promise, settle and collect all claims and
awards assigned'to Beneficiary; provided, however, in no event:shallBeneficiary be responsible for
any failute to collect any claim or award, regardless of the cause of the failure.
b. Subject to'the rights orany senior..lenders, atjts reasonable option,
Beneficiary may,permitinsurance,or. condemnation proceeds.heJdby Beneficiary to be used for
repair or restoration but may con'dition such application upon reas,onable conditions, including,
without Iill}itation:(i) the deposi!'with"Beneficiary of such'additionaLfunds which Beneficiary
determines are needed,to pay' all costs bftIie repair or restoration, (including, without limitation,
taxes, financingcharges~ insurance:and rel]tduring the repair period); (ii) the establishment oran
.arrangement;for lien releases,and,disbursement of funds acceptab1e'to Beneficiary; (iii) the,delivery
to Beneficiary of plans and specifications for the work"a contract for the work signed by a contractor
acceptab1e',to Beneficiary, a cost breakdown for the work and a payment and perfo.rri1ance bond'.for
the work; all ofyvhich shall be acceptable to Beneficiary; and (iv) the delivery to Beneficiary of
evidence acceptable to Beneftciaiy(ai},that after completion of {he work the income from the
Subject Property will besufficient.to pay all.expensesand debtserviceforthe Subject Property; (bb)
of the continuati()n of-Leases acceptable to andrequired by Beneficiiuy; (cc) that upon completion of
, the work, the size, capacityi'm'd total value of the Subject Property,wiIlbeat least as great as it,was
" before the damageo.r.condemriatiqn occ,urred; (dd) that there has beennoinaterial adverse change in
the financial condition or credit of Trustor since the date of this DeectofTrust; and (ee) of the
satisfaction of any additional conditions that Beneficiary may reasona,bly establish to protect its
security Trustor hereby acknoyvledges,that the conditions described above are reasonable, and,,.if
such conditions have not been satisfiedwitIiin thirty (30) days ofteceipt,by Beneficiary of such
insurance or condemnationproceects, then Beneficiary may applysuch'insurance or condemnation
proceeds to pay downprincip,al ofJlieSecured Obligations' in such otder and amounts as Beneficiary
in its sole discretion may choose.
5.7 MAIN'fENANCE'AN,D PRESERV ATION'OFTHE'SUBJECT FROPERTY
.' . . .
Trustorcovenants, subjecttotheprovisions of the Disposition and Development Agreement. (a) to
insure the Subject Property against such nsksas Beneficiary may reasonably require and"at
Beneficiary's request, toprovide,evidence of such itisurance'toBeneficiary, and to comply with the
requirements of any insurance'companies'insuringtheSubjectp;roperty; (b) to keep the Subject
Property in good condition andrepair; (c) not to remove,or deniolish,the Subject Property or any part
thereof'-Ilot to alter, restore or, add to the Subject Property and notto initiate or acquiesce in any
change'inanizoning,orother land,classification which affec.ts the Sl!bjectProperty without
Beneficiary's'prior ,wriitenconsellt; (d) to completeor,restore,pfoniptIy and in good and
worlm1allEke manner;theSl.Ibject'Pfoperty, or any part tlierebfwhich may be damaged or destroyed,
without regard'to'WhetIierJ3eneficiary elects to requirethat"insurance proceeds be used to reduce the
Secured,Obligations asprovid~d.inSection 5.6, (e) to comPlY with all laws, ordinances, regulations
and. standards; and all covenants, conditions, restrictions and equitable servitudes, whether public,or
private, Of every.:kiitd andchatacter which affect the Subj",ct l)~pertyand pertain to acts committed
or condiiions'existing th",reon, including, without limitiition"atiy work, alteration, improvement or
8
DOCSOCI1152291 v31022345-0081,
. .
7948
demolition ,mandated by such laws, covenants or requiremeIlts;,(f) noMocommit or permit waste of
the Subject Property;:'and,(g) to do al! other acts which from'the,charactetor use of the Subject
Property ll1aybe,reasonably necessary to maintain and preseweiis value.
5.8 DEFENSE. AND NO'fICE OF LOSSES, CLAIMS AND ACTIONS. At Trustor's
soleexpense,Trustonhall proiect; pr~serve and defend the' Subjtx'f Property and title to and right of
possession of the Subject Property, the security hereof and the rights and powers of Beneficiary and
Trustee'hereunderagainstall adverseclaiIhs. Trustor shall give Beneficiary and Trustee prompt
notice in wnting,ofthe assertion of any.Cl~im, of the filing,ofany action or proceeding, of the
occurrence of any damage to'the'Subject Property and of any condemnation offer or action.
5.9 A€CEPTANCEOFTRUST; POWERS AND ,DUTIES OF TRUSTEE. Trustee
accepts.this trust when this Deed of Trust is recorded. FromJime,to time upon written request of
Beneficiary and,presentation of,this peed of Trust or a certifiedc6py thereof for endorsement, and
withoutaffecting-thepersonal liability of any person or entity for payment of any indebtedness or
performance,ofany obligations'secured hereby, Trustee may, without liability therefor and without
notice: (a)-reconvey all or anypait ofthe Subject Property; (b) consent to the making of any map or
plat thereof; and (c) join in any'granCof easement thereon, any deClar,iltion of covenants and
restrictions, or any extension,agreemento,r any agreement subotdinating the lien ot charge of this
Deed of Trust. Except as mayberequiredby applicable law, Trustee or Beneficiary may from'time.
to time applyto,anycourt of com petent jurisdiction for aid and direction in the execution of the trust
hereunder,andthe enforcementofthe.iightsand remedies available hereunder, and may obtain orders
ordecrees directing or confirming ot approving acts in the'execution.ofsaid trust and the
enforcement of said remedies. Trustee has no obligation to notify, any party of any pendingsale'or
any action or proceeding; iIlcludif!g, without limitation, actions in.which Trustor, Beneficiary or
Trustee shall be a party unless held,ot commenced and maintained by Trustee under this Deed of
Trust. Trustee shall not be obligated to perform any act required of it hereunder unless the
performance of the acl'isrequested-in.wnting and Trustee isreasotiably indemnified and held
harmless, against loss, cost, Ilabiiityot expense.
5.10 COMPENSATION; EXCULPATION; INDEMNIFICATION
a. Trustor shall payTrustee's fees and reif!lburse,Trustee for expenses in the
administrarion of this rrust, incJudingaitomeys' fees. Trustofshall'pay to Beneficiary reasonable
compensation for servicesrende'red'conceming this Deed of Trust; including without limit any
statement of amounts owing under any Secured Obligation. Beneficiary shall not directly or
indirectly be liable to Trustot or any other person or entity asa consequence of (i).theexercise of the
rights, remedies or powers grantedjo.Beneficiary inihis DeMofTrust; (ii) the failure or refusal of
Berefjciary'to:perform.ordischarge any oDligation or liability of Trustor under any agreement related
to theSUbjedProperty or undertllis Deed:ofTrust;or (iii) any'loss sustained by Trustor or any third
party resulting from Beneficiary's failure to sell, lease or subleasetheSubject Property after a
Default:(hereimiftet defined) or from any other act ()r omission~ofBeneficiary in managing the
Subject:Propertyaft~r a Default, upless the loss is caused'bythe'gross negligence or willful
misconduct ofB.el1.~,fi~iiry,:andnosuchliability shall be asserted against or.imposed upon
Beneficiary, and all such liability is heteby expressly waived and released by Trustor.
D. Trustorindemnifies Trustee and Beneficiary against, and holds Trustee and
BenefiCiaryharmless,from, ~lllos~es; damages, liabilities, Clairiis",causes of action, judgments,. court
costs,'attomeys; fees and other legal expenses, cost of evidence,ottitle, cost of evidence of value,
9
DOCSOCI1152291 v31022345-00,81
. .
794S
and other expenses whiCh eithennay,suffer or incur (i)by'reas911 of this Deed of Trust; (ii) by
reason of the ,executipn ofJhis .hJ1si -Qrip. performance of aiiYactrequi~edor permitted hereunder or
by law; (iii).as a,resultbfmiyfailUfe ofTrustorto perform Trustor's'obligations; or (iv) by reason of
any alleged obligation of.undertakif)g,on Beneficiary's parttop~T~orm or discharge any of the
representations, warranties,coI)djti9ns, covenants or other obligations contained in any other
document related:to,the SubjecfProperty, unless the loss is;caused;by the gross negligence or willfu]
miscoriduCtofTrustee or BenefiCiary, as applicable. The abov~.Q.1:>lig~tion of Trustor to indemnity
and hold harmless Trustee and Beneficiary shaH survive the re1ease:aridcaricellation of the Secured
Obligations'andthereleaseand reconveyance or partial release'and'fs:conveyanceofthisDeed of
Trust. .NotWithstanding the foregoing"however, under no circumstances sha]Lthese indemnity
obligations ofTrustorincIuije;anyobligation for payment of punitive damages assessed against
Beneficiary10r Trustee or their officers,. employees, agents or representatives.
c. Trustbr'sl:1aIf pay all.aIl1ounts and indebtedness,arising'under this Section 5 ]0
immediately upon demand by Truste,eior Beneficiary together with,ifiteiest thereon from the date the
indejJtedness arises,at the rate,ofinterest then, applicable to the principal balance of the Note as
specified'therein.
5,11 SUBSTITUTION O!,'FRUSTEES. From time'to,time,b)i a writing, signed and
,1 acknowledged by Beneficiary and'recorded-in the Office of the Recorder of the County in which-the;
., SubjectProperty is'sifuated, Beneficiary may appoint another,trustee to act in the place'and stead of
" Trustee,orany successor. .such 'YriJLngish~lI, set forth any iilformation:reqtiired by law, The
recorqationof such instruinentof"substitution shall discharge Trustee herein named and shall appoint
the ,new trustee, as thetrustee,l\ereunder with ,the same effect'as:iforiginallynamed Trustee herein. A
1 writingrecoidedpursuant to the.provisions of this Section 5 II shalfbe conclusive proof of the.
proper substitution of such new Trustee.
5.12 DUE ON SALEORENCUMBRANCE. Ifthe',Subject Property or any interest
therein shall be sold, assigned, leased; sllbleased, transferred (in"luding; without limitation, through
'sale or transfer ofa majority or controlling interest of the,corporate;stock or'general partnership
interests or limited liability coinpany.interests of Trustor), mortgaged, collaterally assigned, or
further/.encumbered (otherthan leases of individual housing unitswithin.theImprovements), whether
^ --.--.-. - . - ,
directly or indirectly, whether voluntarily, involuntari]y or byoperation'oflaw, without the prior
wriiten consent of Beneficiary, THEN Beneficiary, in its sole discretion, may declare all Secured
Obligations immediately due and payable.
5:1J; RELEASES"EXTENSIONS;MODlFICATIONS AND ADDITIONAL
. .--
8E<::URlTY Withotitnotice,to,\,r, thecOllsent, 'approval or agreement of any persons or entities
having anyiriterest at any time in tlie Subject Property or in any manner obligated under the Secured
. '.'- ,'- . .,', -: - -.- ..
Obligations ("Iriterested Parties;')"Beneficiary may, from;time'.to,time,release any person or entity
from liabiIityfQr the payment,or performance of any'SecuredOoligation, take any action or make
imyagieemeilt'extending the maturity or:otherwise'altering,tl)e,terms or increasing the amount of any
Secured Obligation, oraccept;aMitionalsecurity or release all ora portion ofthe Subject Property
and Qlher sec]!rityfor theSecure'd 0bligatioris. None oftheJoiegoing actions shall release oneduce
the personaL!iilbility,of any of said Interested Parties, onelease;or impair the priority of the lien of
this DeedofTnist upon the Subject Property
5.1'1 ~CONy~yANCE. Upon Beneficiary's ,written, request, and upon surrender to
Truste,efcir cancellation ofthis Deed of Trust or a certifiedcopy,thereofand any note, instrument, or
10
DOCSOC/ll 52291 v3/022345-008t
. .'
7950
,iiliitiumeIits,setting forth.all'obJigations,se,curedhereby, Trustee shalheconvey, without warranty, the
Subject Property pr, that Porij9P;the.reot;th~n held hereunder. To,theextent permitted by law, the
reconveYli.!1Cel11aydescribe',the'gr.:inteeas;"the person or personsJegally entitled thereto" and the
,recita]sofilny matters or facts in any reconveyance executed'~erernider shall be conclusive proof of
thetruthfulness',tliereof. Neithe!;I~eneficiary nor Trustee shall have arty duty to determine the rights
of persons QFerttities claiming to bii:rightful,grantees of any reconveyance. When the Subject
Propeiiyhasbeenfully reconveyed, ih~e last such reconveyance"shall.operate asa reassignment of all
future rents, issues and profits.of the SubjecfProperty to the person or persons legally entitled
. -. I
thereto.
5.15 SUBROGATION Beneficiary shall besubr9gateg 19 the lien of all encumbrances,
whether released of record or not, pllidin whole or in part by Beneficiary pursuant to this Deed of
Trust or by the proceeds of any loah secured by this Deed of Trust.
5.16 RIGHT OF INSPECTION. Beneficiary, its agents and employees, may enter-the
SubjectProperty,atarty reasonable' time for the purpose of,inspectingthe Subject Property and
ascertaining Trustor's compliance with the terms hereof.
5.1-7 LEASEHOLD MATTERS. This Deed ofTrust'is:subject to the requirementsofthe
Ground Lease.
a; Termination or' Modification of Ground:Lease. Without the express
written.consent of Beneficiary, which consent may be granted of denied in Beneficiary's sole al)d
absolut" discretion" Tfustorshall noUenhinate, cancel or surrend(:r the Ground Lease or the
subleasehold estate or interestjn,or.io,the:Real Property,or'modify, change, supplement, alter or
amend the Ground Lease, either,orally,or in writing. Any tenhiriation, cancellation, surrender
modification, change, supplement"alteration or amendment of the Ground Lease withoutthe prior
written consent thereto by Benefic\ary,~hall be void and of no force 6r,effect. Beneficiary's waiver
of the right,toconseIlt to one, modification, change, supplement, alteration oraluendment ofthe
GroundLease shall,not be deemed'to be a waiver ofthe right to require consent to other, future or
successive modifications, chal1ge~, supplements, alterationsor.ainendments of the Ground Lease, As
.further;security for thnepayment oFthe,Secllred Obligations andJodhe performance'ofthe
covenants contairtedhereiri6r,inthe.:.Ground Lease, Trustor herepyassignsto Beneficiary all of
Trustor'srights; privileges and prerogatives, as lessee under the,GroundLease to terminate, cancel,
surrender;modify, change, supplement, alter or amend the GroUl)Q Lease. This assignmentshall
remain in,effect until all obligations secured by this Deed of Thist are satisfied in full.
b., Release,ofObligations. No release orforbearance of any ofTrustor',s
obligationsiinder the Ground Lease, pursuantto the Ground Lease or otherwise, shall release Trustor
fromany;cifit~;obligationsunderthis Deed of Trust, including its o,bligations with respect to the
payfnerit,,6f rent as provided for in the Ground Lease and-the.performance of all of the terms,
provision~; covenants"conqitio.!1s and agreements contairted'in tlie,Ground Lease, to be kept,
performed"llnd'complied with by the lessee under the Ground Lease.
c. .Performance of Ground Lease. Trustor covenants and agrees to pay when
due all rentsartd'other,payments'and perform all covenantsang agreements contained in the Ground
Lease'and'rtot to'surrend,er"c!lIlcel, assign'or sublease the Grotind Lease, nor take' any other action
thatw9uld effect or permit the'tenhinatiort,oftheGround Lease. Trustor covenants to furnish to
Beneficiar'y, tipOli>request,.withirithirty (30) days after the date uponwhich,suchrents or other
II
DOCSOCI1152291 v31022345-0081
. .
7951
payments are due:and:pay'ablebyTrustOr"receipts or other evidence:satisfactory to Beneficiary
evidenCing:t11:e:Rayment t\1ereof: Be,nefj6iilIYshall have the right; 15utnot the obligation, to cure any
default by Ti-u~igr:under the:GroundLease and to perform'anY"Or:all'ofTrustor's obligations
thereunder All sums:expended,by Beneficiary in curing any ~ufh default shall be secured hereby
and shall be,immedialely due:and,payaJ:lle without demand,or:notice Trustor agrees that it shall
promptlyrotify Beneficiary of any-circumstances which give. rise to aright on the part of Trustor
under tlie 'GroundLeaseJoinaKeor participate in any decision:ordetermination which may affect the
RealPr6perty Trustorhereby;assjgns to Beneficiary all of its rights to make orparticirate in any
such'decisi01l-0r cJ,eterinination. This assignment shall remain in, effect until all obligaiions secured by
this DeedofTrust are satisfied in full.
do. Representations of Trustor No consent,:approval or agreement of any
person, eniity, pa1'!y; courtorgovemmentalagency isrequired to be obtained by Trustor in
connectionwith'theexecution and,delivery of this Deed of Trust or tlieperformance of the terins
hereofor the consummation of the transactions provided for herein, thaI has not'already been
obtained as oftl1e' date hereof. ConsiJmmation ofthe transactions contemplated by this Deed of Trust
.,. ,
shall not cause a default or an event;that,.with notice or the.Japse.oftime or both, would constitute.a
default, br~ach or.violation of anyagreementto which TrustOr is,a party or by which its property is
bound.
e. Notices. If Trustor receives any notice of default,or, alleged ,default under the
GroundLease or any- other material notice"demand, complaint or other communication relating:to
the,Gtound Lease or the Real Property, then Trustor shajl immediately deliver such notice, demand,
complairitbr other communicationto.'l3enefitiary If either TrustOr or the lessor underthe,Ground
Lease defatilts'or,'allegedly defal!It,~'under the Ground Lease, then Trustor shallimmediately'deliver
notice of such d~fault or alleged defiult'to Beneficiary
f. Joinder'ofLessor. If any lender requires Lessor'sjoinder in a note secured
bya deed of trustor the deed of,trust iiselfno personal liability shallmttachOr personal judgment be
obtained against Lessor by reason:ofitsjoinder in such note,setured'.by deed of trust or the deed of
trust itself Lessor shall not be required to encumber or subordinate its fee interest
ARTICLE 6. DEFAULT PROVISIONS
6.1 DEFAULT For all purposes hereof, the termL"Default"shall mean (a) at
Beneficiary's option,-the failure of Trustor to make any payment of.principal or interestonthe,Note
or to pay any-other amount due hereunder or'under the Note when the same is due.and payable,
within tenJioj'(Jays after receiptofwrittennotice,from Benefitiary; Or (b) the failure of Trustor t()
perform anynon,monetary obligation hereunder, or the failure:t,o be'trueof any representation or
wartal1ty'o't'Trustorcontained hereill:and,t,he'continuanceof such failure for thirty (30) days after
notice frQIl1BeI]eficiary (orsuch longergraceperiod.as:may be provided pursuant to the Disposition
and DevelopmentAgreement fOr"such failure.Or theexistenge,ofany default under the Disposition
and Development Agreemen,t)"or if it is not reasonably practidibleto cure or remedy such failure
wit\1in:suchthirty'(30) d'lyperiod, thell' Trustor shall not be deemed to be in default if Trustor shall
cominence'such,cl1fe>wi,thin such thirty (30) day period and thereafter dilig~ntly'prosecutes such cure.
to completion,
12
,DocsocllI 52291 v31022345-0081
. .
7952-
6.2 RIGHTSAND RE;l\1EUtES, Subject to theiights of'any senior lenders, at any time
after Default,Beneficiary, andTrustee!spall each have all the following rights and..remedies:
a. With or without notice, to declare all Secui'ed,Obligations immediately due
and payable;
b. With or without notice, and without releasing Trustor from any Secured
Obligation,)ind without becoming,a'morigagee inpossession"to cure any breach or Default of
Trustor ana; inconnectioll.therewith,,,to enter upon the Subject Pfoperty,and'do such acts and things
as,Beneficiary or Trustee deem necessary or desirable to protect.tne security hereof, including,
without limitation: (i)to appear.in'alldd~fend any action"or,proceeding purporting to affect the
security of this Deed of Trustor.the:rights ,or powers of Beneficiary orTrustee under this Deed of
Trust; (iiHo pay, purchase, contest orcompromise anyencllml:iral1ce, charge, lien or claim oflien
which,inthe solejudgment'of either Beneficiary or Trustee,isoi'may be senior in priority to this
Deed of Trust, the judgment of BenefiCiary or Trustee being,concllisive as between the parties
hereto,,(iii)tool:itain insurance; (iv)' to pay any premiums or chargeswith..respect to insurance
required to be carried under this D~ea,ofTrust; or (v) to employ counsel, accountants, contractors
and other appropriate persons.
c To commence,and maintain an action or ae!iotls'in any court of competent
" jurisdiction to foreclose this instrumel1tas.a mortgage or to obtain specific enforcement of the
covenants,ofT,rustor hereunder"and,Ti'ustor agrees that such co;venants,shall be specifically
enforceable byinjunction::or'any6ther;appropriate equitable rem,edy and that for the purposes of any
suit brought under this subparagraph, Trustor waives the defense oflaches and any applicable statute
, ,,, oflimitations;
d. To'applyto, a ,court of competent jurisdiction for and obtain appointment of a
receiver of the Subject Prbpertyas,a:matter of strict right and wjthout regard ,to the adequacy of the
security for the repayment ofthe Secured, Obligations, the existelke Ofa declaration that the, Secured
Obligations areimrnediately due ana'Payable, or the filing of anoiice,of default, and Trustor hereby
consents to such appointment;
e. To enter upon, possess, manage and, operate the,.subject Property or any part
thereof, to take andpossessall,documents, books,.recorcts, papers,and accounts of Trustor or the then
owner ofthe Subject Property,to'make, terminate, enforce,ormodity Leases of the Subject Property
uRon such terms and conditions as Beneficiary deerns'proper~ to make repairs, alterations and
improvements to the Subject Property as necessary,.in Trustee's or Beneficiary',s sole judgment, to
protector enhance the security hereof;
L To execute a written notice of such Default and.of its, election to cause the
. , ,
Sul:iject Property to be.sold to satisfy the Secured Obligations. Asa,condition precedent to any such
sale, Trustee shall give and record such notice' as the law then requires. When the minimum period
of time reqlliredby law after such notice has elapsed, Trustee; ~i!houtnotice to or demand upon
Trustor exceptas..required by law; shall sell the Subject Property at the time and place of sale fixed
by it in the llotice'9fsale, at,one:orseveral sales, either as a whole or in separate parcels and in such
mannerand ord~r,albfs'Berieficiary in its sole discretion may determine, at public auction to the
highest bidder for cash, in lawful money of the United States; payableaHime,of sale. Neither
Trustor nor any()therperson or entity other than Beneficiary shall have theright to direct the order in
which,the Subject Property is sold. Subject to requirements and limits imposed by law, Trustee may
13
DOCSOClI152Z91 v31022345-0081
, . . .
7953
from time to time.postponesaleof alLor.any portion of the Subject Property by puglic announcement
at such time and place of saie. Trustee.shall deliver to the purchaseratisuch sale a deed conveying
the Subject Property or portion thereof so sold, but without any covenant or warranty, express or
implied. The recitals in the deed of any. matters or facts shalLbe conclusive proof of the truthfulness
thereof. Any.person or entity, including Trustee, Trustor or Beneficiarymay purchase at the sale;
g. To resort to and realize upon the security hereunder and any other security
now or later held by Beneficiary concurrently or successively and in one or several consolidated or
independent judiciaLactionsof lawfully taken non-judicial proceedings, or both, and to apply the
proceeds received upon the Secured Obligations all in such order and manner as Trustee and
Beneficiary, or either of them, determine in their sole discretion.
h. Upon,sa1e-ofthe Subject Property at any judici~1 or non-judicial foreclosure,
Beneficiary m~ycredit bid (as determined by Beneficiary in its sole and absolute discretion) all or
any portion of the Secured Obligations. In determining such credit bid, Beneficiary may, but is not
obligated to, take into account all or any of the following: (i) appraisals of the Subject Property as
., ' .' - . .
such appraisals may be discounted or adjusted by Beneficiary.initssoleand absolute underwriting
discretion; (ii) expenses and costs incurred by Beneficiary with respect to the Subject Property prior
to foreclosure; (iii) expenses and costs which Beneficiary anticipates will be incurred with respect to
the Subject Property after foreclosure, but prior to resale, including, without limitation, costs of
structural reports,and other due diligence, costs to carry the Subject Property prior to resale, costs'of
resale (e,g. commissions, attorneys' fees, and taxes), costs of any hazardous materials clean-up and
monitoring, costs of deferred mainten~nce, repair, refurbishment and retrofit"costs of defending or
settling litigation,:affectingthe,Subject Property, and lost opportunity costs (if any), including the
time value of money during anyanticiJ:lated holding period by Bentficiary; (iv) declining trends in
real property values generally and with respect to properties similar to the Subject Property; (v)
anticipated discounts upon resale of the Subject Property as a distressed or foreclosed property; (vi)
the fact of additional collateral (if any), for the Secured Obligations; 'and(vii) such other factors or
matters that Beneficiary (in its sole and absolute discretion) deems appropriate. In regard to the
above, Trustor acknowledges and agrees that: (w) Beneficiary is not required to use any or all of the
foregoing factors to determine ,the amount of its credit bid; (x) this Section does not impose upon
Beneficiary any additional obligations that are not imposed by'law at the time the credit bid is made;
(y) the amount of Beneficiary's credil'bid need not have any relation to any loan-to-value ratios
previously discussed between Trustor and Beneficiary; and (z),Beneficiary's credit bid may be (at
Beneficiary's sole and absolute discretion) higher or lower than any appraised value of the Subject
Property
6.3 APPLICATION OF FORECLOSURE SALE PROCEEDS. After deducting all
costs, fees and, expenses of Trustee,. and of this trust, includillg, \\{ithout limitation,. cost of evidence
of title and attorneys' fees in connection with sale and costs. and expenses of sale and of any judicial
proceeding wherein such sale may be made, Trustee shall apply all proceeds of any foreclosure sale:
(a) topaymentofall sums expended by Beneficiary under t~e terms hereof and not then repaid, with
accrued interestat,the rate of interest specified in the Note to be applicable on or after maturity or
acceleration of the, Note; (b) to payment of all other Secured Obligations; and (c) the remainder, if
any, to the person or persons legally entitled thereto.
6.4 APPLI€ATION OF,OTHER SUMS. All.sums receivcd by Beneficiary under
Section 6.2 or ~ection 3.2, less all costs'and expenses incurred by Beneficiary or any receiver under
Section 6.2 or Section 3.2, including, without limitation, attorneys' fees, shall be applied in payment
14
DOCSOCII15Z291 v3/022345-0081
. .
7954
of the Secured, Obligations in such'.order asBeneficiaryshal1d~termineih its sole discretion,
provided. however, Beneficiary shall h.:weno liability for funds,not actUally received by Beneficiary
6.5 NO CURE OR WAIVER. Neither Beneficiary's nor Trustee's nor any receiver's
entry upon and taking possession of ail or any part of the Subject Property, nor any collection of
rents, issues, profits, insurance proceeds,-condemnation proceeds or damages, other security or
proceeds of other security, or other sums, nor the application of any collected sum to any Secured
Obligation, nor the exercise <ir failure'toexercise of any other right or remedy by Beneficiary'or
Trustee or any receiver shail cure or waive any breach, Default. or notice of default under this Deed
of Trust, or nullify the effect of any notice of default or sale (unless:all Secured Obligations then due
have been paid and performed and Trustor has cured all other defaults), or impair the status of the
security, or prejudice Beneficiary or Trustee in the exercise of any right-or remedy, or be construed
as ~n affirmation by Beneficiary of any tenancy, lease or optionor a subordination of the lien of this
Deed of Trust.
6.6 PAYMENT OF COSTS, EXPENSES AND ATTORNEYS' FEES. Trustoragrees
to pay to Beneficiary immediately and without demand all costs and-expenses incurred by Trustee
and Beneficiary pursuant. to Section 6.2 (including, without limitation, court costs and attorneys'
fees, whether incurred in litigation.or not) with interest from the, date of expenditure until said sums
have been paid at the rate of interestthen applicable to the principal.balance of the Note,as specified
therein. In addition, Trustor shall pay to Trustee all Trustee's fees hereunder and shall reimburse
Trustee,for all expenses incurred in the administration of this trust, including, without limitation, any
attorneys' fees.
6.7 POWER TO FILKNOTICES AND CURE DEFAULTS. Trustor hereby
irrevocably appoints Beneficiary and' its successors and assigns, as its attorney-in-fact, which agency
is coupled with an interest, (a) to execute and/or record any iioticesofcompletion,cessation of labor,
or any other notices that Beneficiary deems appropriate to protect Beneficiary's interest, (b) upon the
issuance ofa deed pursuant to the foreclosure of this Deed of Trust. or the delivery of a deed in lieu of
foreclosure, to execute all instruments. of assignment or further assurance with respect to the Leases
and Payments in favor ofthegrantee,of any such deed, as may be necessary or desirable for such
purpose, (c) to prepare, execute and file or record financingisiatements,continuation statements,
applications for registration and like papers necessary to create, perfect or preserve Beneficiary's
security interests and rights in or to any.ofthe Collateral, and (d) upon the occurrence of an event, act
or omission which, with notice or passage of time or both,would,constitute a Default, Beneficiary
may perform'any obligation of Trustor hereunder; provided. however, that: (i) Beneficiary as such
attorney-in-fact shall only be accountable for such funds as are actually received by Beneficiary; and
(ii) Beneficiary shall not beJiable to Trustor or any other person or entity for any failure to act under
this Section.
ARTICLE 7. MISCELLANEOUS PROVISIONS
7,1 NO MERGER. No merger shall occur asa result of Beneficiary's acquiring any
other estate in, or any other lien on, the SubjectProperty unless Beneficiary consents to a merger in
writing. Ifboth the lessor'-s.and lessee.'s estate under any lease or any portion thereof which now or
hereafter'constitutes a partofSubjectJ'roperty shall at any time become vested in one owner, this
Deed of Trust and the lien created hereby shall not be destroyed or terminated by application of the
doctrine of merger unless Beneficiary so elects as evidenced by recording a written declaration so
15
DOCSOCll152291 v31022345-0081
. .
79'55
stating, and, unless and until Beneficiary so elects, Beneficiary,shalj,continue to have and enjoy all of
'. - .. - .. .. . '.-' ,,-~
'the rights and privilegesJ.of.',B(lneficiary ~s.to t)1e'separate'estites. In,additiori, upon the foreclosure of
the lien cre~te:dby tl11s Deed cifTrust oMhe Subject Property pursuant to the provisions hereof, any
leases or subleases'then:existing;aIid,affecting all or any portion'ofthe Subject Property shall not be
destroyecfor tertllinated by application oftl1e law of merger or as a matter of law or as a result of
such foreclosure t;nless Beneficiary or.anypilrchasefat such Joreclosure sale,shall so elect. No act
by or on'behalfofBeneficiary ot any-s'uch purchaser shall constiiute a termination of any lease or
subleaseunless:Beneficiary brsuchpcurchaser shall give written',notice:thereofto such tenant or
subtenant.
7.2 WAIVER OF MARSHALLING RIGHTS. Tru~tor; for itself and,forall parties
claiming through.or underTru~tor;,and fo.r all parties who mayacquire a lien on' or interest.in the
Subject'Property, hereby waives,alLrights to have the Subject Pfopefty.and/or any other property,
including; without limitation, the Collateral, which is now or later may ~e security for.al1ySecured
Obligation("Other Property".)marshaled'l!Pon any foreclosure ofthisDeed of Trust or on a
foreclosureof,\ny other secunty forcany ofthe Secured Obligations. Beneficiary shall have,the right
to sell, and any court-inwhlchJofeclosu.re-proceedings m~y be brc:mgtItshall havethe,rightto order a
sale of, theSribject"Property ~nd allY or all ofthe Collateral6rOthef Property as a ,whole or in
separate,parcels,in anyorcier thafBeneficiary may designate,
7.3 RULES OF CONSTRUCTION \Vhen the identity of the parties or other
1'... circumstances make it approp,rjate' the masculine gender includes the feminine and/or neuter, and the
singularnumberincludest)1e'plural. The term "Subject Proj':ierty"'means,all and any part of the
8.ribject Property and any,intefest iii.,iife Subject Property
, 7.4 SUCCESSORS''-IN INTEREST The terms, covenants; and conditions herein
contained shallbe'binding,upon alldjnure to the ,benefitof the heir;, su~cessors and assigns ofthe
parties hereto; provided, however, that. this Section 7 4dbes not waive ot modify ihe provisions of
SectionS 12.
7.5 EXECUTION IN COUNTERPARTS. This DeedofTrust maybe executed in any
number of counterparts; each (>fwhich, whim executed and delivered to Beneficiary; will be dceemed
to be an originaI-and all ofwhicl1;,takeri together, will be deemed'io be one and the same instrument.
7;6 'CALIFORNIA LA W This Deed of Trust shall'"be construed in accordance with the
jaws of the 'State,ofCalifornia, exceptto the extent that Federai Jaws preempt the laws oftheSt,\te of
California.
7,.7 INCOR,PORA:rION Exhibit A and'Exliibit B; all as:attached, ate incorporated into
this Deed. of Trust by. this, reference.
7;8 NOTICES. All notices or othercorru;nun.icatiolls required, or permitted to be given
pursuant to the ,prQvisiollsofthis,])eed of Trust shall beoin'writingand shall be considered as
properly;given'.ifdelivefedpersonally or sent by first class U.S. mail;,.postage prepaid, except that
notice ofa Defaultmaybe,sent by, certified mail, return receiptxequested, or by Overnight Express
Mail orbyovernight cOrumercial cou,rjerse.rvice, charges prepaid. Notices so sent shall be effective
three;(3),<:Iays after mailing, ,if mailed by first class mail, arid,otheIWise ,upon receipt at the addresses
set forth,below For'purposes of notice, ihe addresses of the parties shal! be:
16
DOCSOCII152291 v31022345-0081
. .
7956
Trustor CornhlUnityRoad Housing,Associates"L.P
1.820 S. Escondido Blvd., Ste. ] 01,
Escondido,CA 92025
Attention: Executive Director
With Copy to: NEFAssignment Corporatiol1c
c/o National Equity Fund, Iiic.
120Riverside Plaza, 15th Floor
Chicago; Illinois 60606
Attention:, General Counsel
Beneficiary- Poway Redevelopment Agency
r.o Box 789
Poway, California 92074-0789
Altention: Executive Director
Trustee: Chicago Title Company
2365'Northside Drive, 6th Floor
San Diego,California 92108
Any party/shall have,the rightto chaiige..its address for noticehereu1}der to any other location within
.the continental United States;oythetgiving of thirty (30) days notice to the other party in the manner
setJorth hereinabove. TiUstor shallJorward to Beneficiary, witholltdelay,any notices, letters or
other communications delivered to the SuBject Property or to Trustor naming Beneficiary, "Lender"
or the "ConstructiQh Lender" or any similar designation as addressee; orwhich could reasonably be
deemed to,affectthe construction'ofthe'Improvements or the ability.ofTrustor to perform its
obligations to Beneficiary undetthe Note,
. 7.9 MO'RTGAGE,LOAN RIDER. The Mortgage, LO'l-n Rider attached hereto as
Exhibit B is incorporated herein by this reference as if fully set forth.
IN WITNESS WHEREOF; Trustor has executed this'Deed of Trust as of the day and year
set forth above.
COMMUNITY ROAD HOUSING ASSOCIATES,
L.P.,a California limited partnership
By: Com..mu!lity HousingWorks"a,California
nonprofit public benefit corporation, its'
General Partner
By'
'(ALL SIGNATURES MUST BE ACKNOWLEDGED)
17
DOCSOCllt 52291 v31022345-0081
. .
7957
CALlFORNIAALl.PURIPOSE ACKNOWLEDGMENT
~~1'&)~2S&Gi'hG1(r~~~~~~~~~~~~~Ri<>~~-c<'~r:('~
State of califom, ia }
c:; ss.
County of AN \:)\ G'~~
On ~8-JtLt~t 19J::J.CG?1c before me, ~~:;e'!'~~r~:::'NolaryPUbliC")
personally appeared ~SA-rv rY\. i2..~YrJ'D LDS
Name(s) of Signer{s)
.e-Personally known to me
D n ~
to be the per~on~hose nam,e~/~subscribed
to the within instrument.and acknowledged to me that
J'-' - - - - ):lei'!;he/tl;!e1'" executed the same in ~er/JBefr
CllUZ~ - - authorized capaCity.(j.Qat,- and that by JJjsiI'rer/,lPeir
jg ~\~.~." 6 i65'lO 1 signatur~on t.he,:instrument the personj,at' or the
NoImyIUlac -CcIlIIamIoj entity upon behalf of which the person~ acted,
_ _ _ ~~?':..~=.~ executed the instrument.
- - - -
WITNESS my haod an
Place Notary Seal Above
OPTIONAL
Though the information below is not required by law, it may prove vafuabletopersons relying on the document
and could prevent fraudulent 'removal and reattachment of this form to, another document.
Description of Attached Document
Title or Type of Document: c..'Ell-!>FHo'4D COnhJl2l,(eHOfl.) ~f) OF-TiZJ.It:, -r
Document Date: ~,0,6 Number of Pages: ,';;.3
Signer(s) Other Than Named Above: (J[)[)6f)l{.W . L, 0) A-NEbH-G'1J- J JOb-~oG=r:;4
, -
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
o Individual 0 Individual
o Corporate Officer - Title(s): 0 Corporate Officer~ Title(s):
o Partner - D Limited 0 General D Partner - 0 Limited 0 General
D Attorney in Fact Ton f th mb h .. [] Attorney in Fact .
c' 0 u ere - Top ot thumb here
D Trustee 0 Trustee
D Guardian or Conservator D Guardian or Conservator
D Other' D Other'
Signer Is Representing: Signer Is Representin9:
~~~~~~~~'C(..."CC~'~~,Co(~!;0~K1~2;<:.'l;:;;~<:~;;~~~,"~,i'.i%'~",~"e'V~~"g,;."Q(,~~~
@2004 Nalional Notary Association' 9350 De Solo Ave., P.O, Box 2402 . Chatsworth, CA 91313-2402 Item No. 5907 Reorder, Call Toll-Free 1-800-876-6827
. EXHIBIT A . 7958
PARCEL "C" OF CERTIFICATE OF COMPLIANCE RECORDED JULY 6, 2005 AS FILE NO
2005-0566608 OF OFFICIAL RECORDS AND DESCRIBED AS .FOLLOWS
ALL OF THE LAND CONVEYED TO KENNETH A LUDDEN PER BOOK 2362, PAGE 54 OF
OFFICIAL RECORDS, RECORDED FEBRUARY 28, 1947, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, TOGETHER WITH ALL OF THE LAND CONVEYED TO KENNETH A LUDDEN ET AL
PER DOCUMENT NO 102837, OF ,OFFICIAL RECORDS, RECORDED JUNE 15, 1961, SAID
COUNTY, SAID STATE; TOGET,HER WITH ALL OF THE LAND CONVEYED TO POWAY MUNICIPAL
WATER DISTRICT PER DOCUMENT NO 86033, OF OFFICIAL RECORDS, RECORDED MAY 18,
1961, SAID COUNTY, SAID STATE; TOGETHER WITH A PORTION OF LAND CONVEYED TO
JEFFRIES ET AL PER DOCUMENT NO 1991-0468067" ALL OF OFFICIAL RECORDS,
RECORDED SEPTEMBER 12, 1991, SAID COUNTY, SAID STATE; ALSO BEING A PORTION OF
THE NORTHEAST CORNER OF THE SOUTHEAST QUARTER OF THE NORTHWEST QUARTER OF
SECTION 13, TOWNSHIP 14 SOUTH, RANGE 2 WEST, SAN BERNARDINO MERIDIAN, IN THE
CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY
DESCRIBED AS FOLLOWS
BEGINNING AT THE NORTHEAST CORNER OF THE SOUTHEAST QUARTER OF THE NORTHWEST
QUARTER NORTH OF SAID SECTION; THENCE WESTERLY ALONG THE NORTH LINE OF SAID
SOUTHEAST QUARTER NORTH.. 89"00'02" WEST, 344 90 FEET TO THE TRUE POINT OF
BEGINNING; THENCE SOUTH 08"18'07" WEST 144 77 FEET; THENCE SOUTH 26"03'03" WEST
82 70 FEET; THENCE SOUTH 25"35'34" WEST 167 66 FEET TO A POINT ON THE WESTERN
PROLONGATION OF THE NORTH LINE OF LAND CONVEYED TO ERNEST H PEACOCK ET AL, BY
DEED RECORDED SEPTEMBER 2, 1953 IN BOOK 4974, PAGE 78 OF OFFICIAL RECORDS,
COUNTY OF SAN DIEGO; THENCE EASTERLY ALONG THE PROLONGATION OF THE NORTH LINE
OF SAID PEACOCK'S LAND, SOUTH 89"00' 02" EAST 2 '86 FEET TO THE NORTHWEST CORNER
OF SAID PEACOCK LAND; THENCE EASTERLY ALONG THE NORTH LINE OF SAID PEACOCK
LAND NORTH 88"00'02" WEST, 408 44 FEET TO THE WESTERLY RIGHT OF WAY OF
COMMUNITY ROAD; THENCE NORTHERLY ALONG SAID RIGHT OF WAY NORTH 01"53'32" EAST
106 97 FEET; THENCE SOUTH 89"00'02" EAST 1 00 FEET; THENCE NORTH 1"53'32" EAST
60 01 FEET; THENCE NORTH 89"00'02" EAST 1 00 FEET TO THE WESTERLY RIGHT OF WAY
OF COMMUNITY ROAD; THENCE, NORTHERLY ALONG SAID RIGHT OF WAY NORTH 1"53'32" EAST
46 43 FEET; THENCE NORTH 89"00'21" WEST 112 09 FEET; THENCE NORTH 01"53'31" EAST
104 51 FEET; THENCE SOUTH' 88"06'29" EAST 6 45 FEET TO THE BEGINNING OF A
TANGENT CURVE CONCAVE TO THE NORTHWEST, HAVING. A RADIUS OF 37 50 FEET; THENCE
ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 39"51'23" AN ARC DISTANCE OF 26 09
FEET; THENCE NORTH 52'02'08" EAST, 23 26 FEET TO A POINT ON THE SOUTHERLY RIGHT
OF WAY OF HILLEARY PLACE, AS DESCRIBED IN EASEMENT FOR RIGHT OF WAY AND
INCIDENTS FOR A PUBLIC STREET, DOCUMENT 1992-0093381, OFFICIAL RECORDS
RECORDED FEBRUARY 21, 1992, SAID POINT IS ALSO THE BEGINNING OF A NONTANGENT
CURVE CONCAVE TO THE NORTHEAST HAVING A RADIUS OF 75 00 FEET AND A RADIAL TO
SAID POINT BEARS SOUTH, 37"34'04" WEST; THENCE NORTHWESTERLY, SOUTHWESTERLY AND
NORTHERLY ALONG SAID SOUTHERLY RIGHT OF WAY THE FOLLOWING THREE COURSES
THROUGH A CENTRAL ANGLE OF 28"12'08" AN ARC ~ISTANCE OF 36 92 FEET TO A POINT
ON THE NORTH LINE OF SAID SOUTHEAST QUARTER, SAID POINT IS ALSO THE BEGINNING
OF A NONTANGENT CURVE CONCAVE TO THE SOUTHEAST" HAVING A RADIUS OF 74 00 FEET
AND RADIAL TO SAID POINT BEARS NORTH 20"57'53" WEST; THENCE SOUTHWESTERLY ALONG
SAID CURVE THROUGH A CENTRAL ANGLE OF 25037'29" AN ARC DISTANCE OF 33 10 FEET;
THENCE NORTH 01"53'31" EAST 20 68 FEET TO A POINT ON THE NORTH LINE OF SAID
SOUTHEAST QUARTER; THENCE WESTERLY ALONG THE NORTH LINE OF SAID SOUTHEAST
QUARTER NORTH 89000' 02" WEST 179 88 FEET TO THE TRUE POINT OF BEGINNING
APN 317-101-53
, . .
795~
EXHIBIT B
MORTGAGE LOAN RIDER
1
DOCSOCII152291,31022345'0081
6oV2.05a . .
NEFAC Model Form - 7/01 7960
Tab Sa
MORTGAGE LOAN RIDER
This Rider is;attach,e.<i to and made a part of the promissory frate, the mortgage or trust deed, and
loan agreement c:>r other document(s)"e'videricing, securing, and 'g6Veminga loan in the amount of One
Million"Five Hiindred Thousand Dollars ($i',500,000) (the 'iLoari")""made;byPowayRedevelopment Agency
("Lender") to 'Coinmunity Road HQusing Associates, L.P ("B9riower':) for the construction ,of a fifty-six
unit multifamily housing projedJocatedat 13406 - 13426 COnlmunity Road in the City of Poway {the
"Project"} Borrower and lender have entered into a Disposition and:Development Agreement, ,dated as of
June 28, 2005, as amended by the First Amendment to' Disposition and Development Agreement and
Promissory Note, dated. as of February 7, 2006 (as amended, the'''DDA''), and'Lender is leasing the land for
the Project to Borrower pursuant to a "Ground Lease" dated as of thesarhe date as this Mortgage Loan
Rider The form of this Rider has, been designed for use whether Borrower is a limited partnership, a land
trust of which a, limited partriership is the beneficiary, or othelWise. Accordingly, the limited' partnership
developing tlie Project, whether or not identified as Borrower; is, sOll1etimes referred to herein as the
"Partnership" The Amended and B.estated Limited Partnership Agreement forming or continuing the
Partnership is referred to herein as',the "Partnership Agreement"
The paities hereto agree tbanhe following covenants, teffils, 'and conditions shall .be part of and
shail,modify or, supplement each.of the d9cuments evidencing,securi1]g, or governing the, disbursement of
the Loan (the "Loan Documents"), and that in the event of anyiriconsistency or conflict between the
covenants, terms; and conditions'oHhe Loan Documents and this Rider, the following covenants, 'terms, and
conditions ,shall control. and. prevail:
l. Non-recourse Obli!!ation. The Loan is a non-recourse obligation of Borrower Neither
Borrower norany'ofits.,general and limited partners (or, if Borrower is not the Partnership, the general and
limited partners ofthe Partnership),;noranyother party shall have, any personal liability for repayment of the
Loan. The sole recourse of Lender under the Loan DocumeI!ts for repayment of the Loan shall be the
exercise of its rights against the Project and related security thereunder
2. General Partner :Chari!!e. The withdrawal, removal, and/or replacement of a general
partner of-the Partnership pursuant to the terms of the Partnership:Agreement shall not constitute a default
under any of the Loan Documents, ;a,nd any such actions shall not accelerate the maturity of the Loan,
provided that any required substitute general partner is reasonably acceptable to Lender pursuant to Section
703 of the DDA and is selected with reasonable promptness.
3. Monetarv Default , If a monetary event of default occurs under the terms of any of the
Loan Documents, prior to exercising any remedies thereunder Lender shall give Borrower and each of the
general arid limited partners ofthePartnership, as identified in'the Partnership Agreement, who have given
the ,Lender a written request for noticeq,f defaults, simultaneous' written notice of such default Borrower
shall haye a, period of seven (7) days after such notice is given within which to cure the default prior to
exercise of remedies by Lender under the Loan Documents; or such longer period of time as may be
specified in the Loan Documents.
4., Non~Monetarv.Default. If a non-monetary event of default occurs under the terms.of any
of the Loan Documents;,prior to exercising any remedies thereunder Lender shall give Borrower and each of
the general arid liiilited partners of the Partnership, as identified in the Partnership 'Agreement, who have
given' the Lendena written request for notice of defaults, simultaneolls written notice of such default If the
default i'i; reasonably capable of being cured within thirty (30) days, Borrower shall have such period to
DOCSOC!1l52675v3!022345'OO81
. . 796i
effect 'a cure prior toexercise.,ohemediesby Lender under the Loan Documents, or such longer period of
time as maybe specified ih the Loan Documents. If the default is such that it is notreasonably capable of
being cured within thirty (30) days or such longer period if so, specifieq, and if Borrower (a) initiates
corrective action within said period"and (b) diligently, continually; and in ,good faith works to effect a cure
as soon as possible, then Borrower shalrhave such additional time as is reasonably necessary to cure the
default prior to exercise of any remedies, by Lender. IfBorrowerfaiisto,take corrective action or to cure the
default within.. a reasonable time, Leridet..shall give Borrower and each of such general and limited partners
of the Partnership Written notice thereof,'whereupon the limited.partnermay remove and replace the general
partner with a substitute general partner who shall effect a cure within. a reasonabie time thereafter in
accordance ,with the foregoing provisions. In no event shalL Lender be'precluded from exercising remedies
if its security becomes or is about to become materially jeopardized by any failure to cure a default or the
default is not cured within ninety (90)"daysafter the first notice of default is given, or such longer period of
time as may be specified in the Loan Documel1ts.
S.Casualtv.Condenination. Etc. In the event .of any fire'or other casualty to the Project or
eminent domain proceedings resulting in condemnation of the Project or any part thereof, Borrower shall
have the'right to rebuild the Project, and to use all available insurance or condemnation proceeds therefor,
provided that (3) such proceeds, are sufficient to keep the Loan in balance ,and rebuild the Project in a
manner that provides adequate security to Lender for repayment of the Loan or if such proceeds are
insufficient then Borrower shan have funded any deficiency, (b) ,=e[lder shall have the right to approve
plans and specifications for any major rebuilding and the righHo approve disbursements of insurance or
condemnation proceeds for -rebuilding ,under a construction escrow or similar arrangement, and (c) no
material default then exists ,under the-LoanDocuments. If the casualty or.condemnation affects only part of
the Projectandlotal rebuilding is infeasible, then proceeds may be used for partial rebuilding and partial
repayment"ofthe Loan in a manner that provides adequate security to Lender for repayment of the remaining
balance oflhe Loan.
6. Force,Maieure, There shall be no default for construction or rehabilitation delays beyond
the reasonable conITol of Borrower in accordance with Section 702 of the DDA, provided that such delays
do not exceed one hundred eighty (180) days, or such longer periodoftime as may be specified in the Loan
Documents.
7. Purchase Ril!hts. The execution and delivery of the purchase option and right of first
refusal agreement described in the .Limited Partnership Agre~l1!.ent shall not constitute a default under the
Loan Documents or accelerate the ' maturity. of the Loan thereunder Any requisite consent of Lender to (a)
the exercise of said purchase option and righLof first refusal agreement by the project sponsor identified
therein, and to (b).the assumption.without penalty of Loan ooligations'by the project sponsor and the release
of Borrower from such obligations, ,shallnot be umeasonabiy withheld. Subject to any such consent
requirement, the exercise of rights under such agreement shall. not constitute a default or accelerate maturity
of the Loan.
8. Loan Assumption. If the purchase option and right offirst refusal agreement described in
the Limited Partnership Agreement is not exercised and the Project is sold subject to low-income housing
use restrictions ,as contained' in an existing regulatory agreemenl"or other recorded covenant, any requisite
consent of Lender to saidsale;"and to the assumption without penalty of loan obligations by the purchaser
and the release of Borrower from such obligations, as set forth in Section 703 of the DDA, shall not be
unreasonably withheld.
2
DOCSOC/1152675v3/022345-00Bl
.. , . . 796Z
9; Lender Approvals, Etc, 'In any approval, consent, or-. ,other determination by Lender
required ,under any,oftheLoan'Documefits"Lertder shall act reasonablyandin good faith.
10. Subordination: Lend.er acknowledges thatj3orrower and the California Tax Credit
Allocation Committee intend to enter into; or concurrently'with tlieexecution and delivery of the Loan
Documents are entering into,anextenaed use agreement, which, constitutes the exiended low-income
housing commitment described irt' Section 42(h)(6)(B) of the Internal Revenue Code, as amended. Lender
agrees to, subordinate the Loanand,L,ender's rights under the Lo~m Documents executed in conjunction
therewith to the relevant provisions of said extended use agreeifiefit.TIiissubordinationis being made in
consideration of the allocation of tax' credits to the Project, absent which the development of the Project
would not occur, and this mortgage loan would not be made.
11. Prohibition of Sale. Lender shall neither (a) sell, assign, transfer, or convey any such
indebtedness '(or' any interest thereiri) to Federal National Mortgage Association ("Fannie Mae") nor (b)
include sucq indebtedness (or any interest therein) in a pool of loans 'to be sold, assigned, transferred, or
conveyed to Fannie Mae, witliout the,Borrower'sprior written consen!c
3
DOCSOC/IJ:S'26 7 5v3 / 022 3 4 5-0081
"
. . . . . . 7963
In. Witne~.s 'Whereof; the mndersigned have caused this Rider ,to be executed this 14th day of
February, 2006.
'Borrower: Lender:
COMMUNITY R@ADHOUSING powA YREDEVEL0PMENT AGENCY
ASSOCIATES, L.P .,il California a public body; corporate and politic
limited. parti1ership BY~
By: Co>mmunity.HousingWor~si
a Californiapublic,benefit odGould
nonprofit 'corporation, Executive Director
its general partner
,~ Attest:.
BY' BY~~
. usanN.Reynolds
.President and CEO
gel1cy.Secretary
Approved as to Form:
4
DOCSOC/l1~2675V3/022345-0081
r1964
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,
i i
i
, State of California } 55. CALIFORNIA ALL-PURPOSE l
~'COO ,
~ County of San j
, CERTIFICATE OF ACKNOWLEDGMENT j
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On ,?-P C/ c;.. before me, ez-
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Date Pr;nled Name , NOtil'yPublic ,
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personally appeared S:L-IY2h ;1 ;p e '/ /)tJ / ds
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I PflIHcdNamp"j 01 Sigr\er(~l i
, D personally known to me 'or-
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; ~oved to me on the basis of satisfactory evidence: i
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, 81Ormls) of identification {!.bJ....-
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; D credible witness(es) i
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to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me i
that he/she/they executed the same in his/her/their authorized capacity(ies), and that by hislherltheir i
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, ~
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executed the instrument. i
WITNESS my hand and official seal. !
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~ Notary Public - CaUIomIa f W~ i
j San DIego County - ,
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(Seal) i
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OPTIONAL INFORMATION I
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Although the informarion in this section is not required by law, it could prevent fraudulent removal and reauachment of this l
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acknowledgment to an unauthorized document and may prove useful to persons relying on the atrached document. ,
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Description of Attached Document i
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The preceding Certificate of Acknowledgment is attached to a document i
'!:Jec:.d 6-1 irvd - If/del o AjditionaISigner\s) D Signer(s) Thurnbprint(sj ~
titledlfor the purpose of ,
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DOlher !
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containing pages, and dated i
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The signer(s) capacity or authority is/alc as. i
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D Individual(sl i
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D Attorney-in-Fact j
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o Corporate Officer(s) i
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D Guardian/Conservator !
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D Partner limited/General ~
o Trustee(s) i
D Other> ~
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representing: ,
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Name{s)ofPerson(s) 01 EnlirY(les) Signer is Replesenllng ,
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(J Copyright 2004 Notarv RordlY, Inc, 925 29th 5l" Des Moin\Ol, IA S0312-3612 Form ^(K02, 0210~ To re-order, call toll-IIPe I-tin ,4'1 65RR or viSIt us. on tl)(' l!lt'~lnl'1 Jl http://www,lhen('tJfV,hopcom
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:STATE OF CALIFORNIA
COUNTY OF ~f\ DIyn'
On L 'WD (p ."betoreme, S1fLlw fOU.Mi \ , Notary Public,
(Print'Name of Notary Public)
personally appeared ~orl ~Gu.1 cL
~ personally known to me
-or-
D proved to me on the basis of satisfactory evidence to be thepetson(ifwhose name~r,Qare-
SUbSCri~e within instrument and acknowledged to me that he1ShJ:k)eY executed the same
in lris1h , . authorized capacity(i~and that by ~helr signature(.s:)on the instrument the
persoI1,(s), or the entity upon' behalf of which the personWiicted, executed the instrument.
d official seal.
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totvComm.ExpRI~21,20D7 ,
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OPTIONAL
Though the data below is not tequired by 1a,,', it may prove valuable to persons relying on the document and could prevent
fraudulent realtachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
D Individual
D Corporate Officer
~dr&lCbti j cb&\ f)@61 off iUS}
Title(s)
Title Or Type Of Document
D Partner(s) D Limited
D General
D Attorney-In-Fact 23
D Trustee(s}
D Guardian/Conservator Numbei. Of Pages
D Other:
Signer' i$ 'representing; ~~ /L12Cdo
Name Of Person(s),Or:Entity(ie~)
Dat Of Documents
~!>Jm~\j~ D!OlIL\0la
, 'igner(s ther Th tl.Na ed Above
DOCSOCIl15229! v3/022345-008!
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'.'.,. . . 7966 J1
CALIFORNIA AlL.PURPOSE ACKNOWLEDGMENT
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State of California }
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, County of San ,Di e90
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I, On 2ILI.Qlp , before me, Shelley Collins. Notary Public _,
> Dale . Name and Tille'ofOfficer (e.g., "Jane Doe, Notary Public")
: personally appeared L J)'fffl.JL -3JutL,
Name(slofSigner{s) 'I
:: gpersonally known tome "
, J ~ ,-. ,- _. , .' , 0 proved to me on the basis of satisfactory "
. ..,. ~~~~ - f evidence,
- -' ~JJWw.,#'J446363
, i,' ,NolaIVI'Ubac:'~ to be the person whose name(s}--@~'
: j 'Mvco.':.~:"CounIr f subscribed to t~within instrument and :
I' - - - __ _ _ _ _~2~~, acknowledged,to met~~ executed
I the sa.':Tle in Jli'l!.!.~;' authorized,
I capacity(~ a.nd that by hjs~'
I signature{S}-Ori'the"nstrument the person(ej; or
I the entitY';upon behalf of which, the person(s1-
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acted, executed the. instrument.
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I, Place Notary Seal Above 'I
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OPTIONAL
Though the information 'below is not required by law, it may prove valuable to persons relying on the document 'I
and coufdpreveni fraudiJlerft'removal and reattachment 'of thi~ form 10 another document. ,I
Description of Attached p~cuml'~nk J /, , '. M A '" P --r. f
Title or Type of Document: UM5f:y/o7 VI- /5Y1JS1Jiutb6'YL, V trr I MS
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,. Document Date: 2.tL/ 00J ,Nurnber of Pages: Z '3 "
: Signer(s) Other Than Named Above~Qn keiA/l51d 5 Qed fjJuitJ/ IDn qfr;l?:
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, Capacity(ies) Claimed by Signer'
Signer's Name:
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D IndiVidual Top of thumb hero
D Corporate Officer;- Title(5):
D paitner-D Limited DGeneral ,
D Attorney in'Fact "
I 0 Trustee
I 0 Guardian or Conservator
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" D Other'
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I' Signer Is Representing:
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e 1999 Natlomll Notary Association- 9350 De Soto Ave., P.o. Box 2402' Chalsworth, CA 91313.2402' wwwnaliomlnolary.org Prod. No. 5907 Reorder. Call TolI.Free 1-800-876-6827