RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO
Xxxxxx X. Xxxxx, Esq.
Xxxx, Small & Xxxxxx
000 Xxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
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DEED OF TRUST
WITH ASSIGNMENT OF RENTS AND ACCELERATION IN EVENT OF SALE
AND SECURITY AGREEMENT
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THIS DEED OF TRUST is made effective on July 3, 1996, among
QAD, INC.,
a California corporation,
herein called TRUSTOR, whose address is
0000 Xxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxxx 00000,
CHICAGO TITLE COMPANY,
a California corporation,
herein called TRUSTEE, and
GREYROCK BUSINESS CREDIT,
a Division of NationsCredit Commercial Corporation
herein called BENEFICIARY, whose address is
000 Xxxxxxxxxxx Xxxx. Suite 200
El Segundo, California 90245
WITNESSETH: That TRUSTOR irrevocably GRANTS, TRANSFERS and ASSIGNS to TRUSTEE,
IN TRUST, WITH THE POWER OF SALE, all the property in SANTA XXXXXXX County,
California described as set forth on Exhibit A attached hereto and incorporated
herein by this reference (the "Property"), including without limitation all of
the following, whether now existing or hereafter arising: all buildings,
structures, and improvements now or hereafter thereon, and all appurtenances,
easements, rights and rights of way, water and water rights, pumps and pumping
plants, pipes, flumes and ditches thereunto belonging or in anywise
appertaining, and all shares of stock evidencing the same; all fixtures,
building materials, machinery, machines, motor vehicles, tools, parts,
equipment, pumps, engines, motors, boilers, incinerators, inventory, supplies,
goods, systems for the supply or distribution of heat, air conditioning,
electricity, gas, water, air, light, fuel or refrigeration or for ventilating
purposes or for sanitary or draining purposes or for the exclusion of vermin or
insects or for the removal of dust, refuse or garbage, elevators, escalators,
and related machinery and equipment, fire prevention and extinguishing
equipment, security and access control equipment, plumbing, showers, bath tubs,
water heaters, toilets, sinks, stoves, ranges, refrigerators, dishwashers,
disposals, laundry equipment, wall, window and floor coverings, partitions,
doors, windows, awnings, hardware, waste and rubbish removal equipment,
recreational equipment, signs, furniture, furnishings, appliances, ovens,
antennas, telephone equipment, office equipment and supplies, plants, carpets,
rugs, sculptures, artwork, mirrors, tables, lamps, beds, television sets, light
fixtures, chandeliers, desks, cabinets, bookcases, chairs, sofas, benches, and
janitorial and maintenance equipment and supplies, and all substitutions,
accessories, accessions, replacements, improvements, and additions to any or all
of the foregoing; all of the items and things so specified being hereby declared
to be, and in all circumstances shall be construed to be, for and in connection
with the purposes and powers of this Deed of Trust, things affixed to and a part
of the realty described herein, the specific enumerations herein not excluding
the general; and also absolutely assigns all of the tolls, earnings, incomes,
rents, issues and profits of any and all of the aforesaid property (subject,
however, to the right, power and authority hereinafter given to and conferred
upon Trustor to collect and apply such rents, issues and profits); and all of
the estate, interest, and all other claims and demands including insurance, as
well as at law and in equity, which Trustor now has or may hereafter acquire, in
and to, or relating to, the aforesaid property; and all condemnation awards,
security deposits, utility deposits, and real property tax and insurance rebates
and refunds;
FOR THE PURPOSE OF SECURING THE FOLLOWING (collectively, the "Secured
Obligations"): (1) performance of each agreement of Trustor contained in this
Deed of Trust; and (2) the payment and performance of all indebtedness,
liabilities, representations, warranties, guaranties, and other obligations of
Trustor to Beneficiary, whether now existing or in any manner hereafter arising,
however evidenced, whether as principal, guarantor or otherwise, whether direct
or indirect, absolute or contingent, joint or several, due or not due, primary
or secondary, liquidated or unliquidated, original, renewed, or extended,
whether arising directly or acquired from others, including but not limited to,
all present and future indebtedness, liabilities, representations, warranties,
guaranties, and other obligations of Trustor under or in connection with the
following: that certain SECURED PROMISSORY NOTE DATED JULY 3, 1996 made by
Trustor to the order of Beneficiary in the original principal amount of
$4,000,000; that certain LOAN AND SECURITY AGREEMENT DATED JULY 3, 1996 between
Trustor and Beneficiary; and (3) any and all amendments, modifications,
renewals, supplements, replacements and extensions of any of the foregoing,
including but not limited to amendments, modifications, renewals, supplements,
replacements and extensions which are evidenced by new or additional
instruments, documents or agreements or which change the rate of interest on any
obligations secured hereby or any other term or provision thereof. (The
documents, instruments and agreements referred to in this paragraph are
collectively referred to herein as the "Loan Documents.")
1. COVENANTS. For the purpose of protecting and preserving the security
of this Deed of Trust, Trustor promises and agrees at its sole cost and expense
as follows:
1.1 COVENANTS REGARDING THE PROPERTY. Trustor agrees: (a) To keep all
buildings, structures, and other improvements now or hereafter situate upon the
Property at all times entirely free of dry rot, fungus, termites, beetles, and
all other wood-boring, wood-eating and/or harmful or destructive insects, and in
all respects to properly care for and keep all of the Property including without
limitation all such buildings, structures and other improvements in good
condition and repair; (b) not to remove, demolish, or substantially alter
(except such alterations as may be required by laws, ordinance, or regulations)
any building, structure or improvement thereon; (c) to complete promptly and in
good workmanlike manner any building or other improvement which may be
constructed on the Property, and (whether or not any insurance proceeds are
sufficient for such purpose) promptly to repair and restore in like manner any
building or other improvement thereon which may be damaged or destroyed, and to
pay when due all claims for labor performed and materials furnished therefor, to
complete such construction in accordance with plans and specifications approved
in advance in writing by Beneficiary, and to allow Beneficiary to inspect said
property at all times during construction, to replace any work or materials
unsatisfactory to Beneficiary within fifteen calendar days after written notice
from Beneficiary of such fact (which notice may be given to Trustor by
registered mail sent to his last known address or by personal service of the
same) and Trustor shall not permit work on the construction of such improvements
to cease for any reason whatsoever for a period of fifteen (15) calendar days or
more; (d) to comply with all laws, ordinances, regulations, conditions, and
restrictions now or hereafter affecting the Property or any part thereof or
requiring any alterations or improvements to be made thereon; (e) not to commit
or permit any waste or deterioration of the Property; (f) not to commit, suffer
or permit any act to be done in or upon the Property in violation of any law or
ordinance; (g) to cultivate, irrigate, fertilize, fumigate, prune and keep in
good condition all grounds and landscaping appurtenant to the Property; (h) to
obtain the prior written approval of Beneficiary of any person or firm to be
retained as property manager of the Property and to include a provision in any
property management agreement that it is cancelable upon sixty (60) days' prior
written notice from Beneficiary if an event of default (as hereinafter defined)
occurs; and (i) to do any other act or acts, all in a reasonably timely and
proper manner, which, from the character or use of the Property, may be
reasonably necessary to protect and preserve said security, the specific
enumerations herein not excluding the general.
1.2 INSURANCE. Trustor shall provide and maintain insurance covering all
buildings, structures, and improvements now situate or which may be hereafter
erected or placed upon the Property, against such hazards as Beneficiary may
require (including without limitation fire and extended coverage insurance and
earthquake insurance), in an amount equal to the full insurable value thereof
(on a replacement cost basis), in form and with insurers satisfactory to and
with loss payable to Beneficiary; maintain comprehensive general public
liability and property damage insurance, in such amount as Beneficiary may from
time to time require, insuring Beneficiary if it so requests; and maintain
business interruption and rent loss insurance, if required by Beneficiary, in
Beneficiary's sole and absolute discretion, in an amount equal to not less than
the total of principal, interest, taxes, assessments and insurance premiums
payable under the Loan Documents and this deed of trust for a six (6) month
period, unless otherwise agreed to in writing by Beneficiary to the contrary.
If the premises are now, or at any time during the term of the note shall be,
situated in an area which the Federal Insurance Administration or any other
governmental authority designates as a flood or mud slide hazard area or the
like, Trustor shall, unless otherwise agreed to in writing by Beneficiary,
obtain and maintain in force at all times insurance against loss or damage by
flood or mud slide in such amount as Beneficiary may require, but no amount in
excess of the maximum
legal limit of coverage, if any, shall be so required. Except as specifically
provided herein to the contrary, each policy of insurance required to be
secured, kept and maintained by Trustor pursuant to this paragraph shall be with
such companies, contain such terms and endorsements and be in such amount(s) as
Beneficiary, in Beneficiary's sole and absolute discretion, may require. All
such insurance policies shall contain a standard non-contributory mortgagee
clause in favor of Beneficiary and shall also contain a provision requiring at
least thirty (30) days' notice to Beneficiary prior to any cancellation or
modification. Trustor shall deliver to Beneficiary the policy or policies, or a
certificate thereof in all respects satisfactory to Beneficiary, at
Beneficiary's election, evidencing all insurance as required to be maintained by
Trustor pursuant to this paragraph, together with an executed copy of the
mortgagee clause to each policy as required herein, and receipts for the payment
of premiums thereon. Trustor agrees to pay all premiums on such insurance and
give Beneficiary satisfactory evidence of renewal of all such policies with
premiums paid at least thirty (30) days before expiration. Trustor shall
annually, at least thirty (30) days prior to the renewal of any fire and
extended coverage policy, furnish to Beneficiary evidence of the full insurable
value of the Property, which evidence shall be in form and substance in all
respects satisfactory to Beneficiary as determined by Beneficiary, in
Beneficiary's sole and absolute discretion. Trustor shall not permit any
condition to exist on or with respect to the Property which would wholly or
partially invalidate any insurance thereon. Beneficiary shall not by the fact
of approving, disapproving, accepting, preventing, obtaining or failing to
obtain any such insurance incur any liability for the form or legal sufficiency
of insurance contracts, solvency of insurers, or payment of losses, and Trustor
hereby expressly assumes full responsibility therefor and any liability, to, or
of, Beneficiary, if any, thereunder. Effective upon any default hereunder, all
of Trustor's right, title and interest in and to all such policies of insurance
and any unearned premiums paid thereon are hereby assigned to Beneficiary, who
shall have the right, but not the obligation, to assign the same to any receiver
of the Property or any purchaser of the Property, or any part thereof, at any
foreclosure sale, and Beneficiary is hereby irrevocably appointed attorney-in-
fact for Trustor to so assign and transfer said policies. In the event of any
loss covered by any insurance policy maintained by Trustor, Trustor shall give
immediate written notice thereof to Beneficiary, and the amount collected under
any such policy of insurance may, at the sole option of Beneficiary, be applied
by Beneficiary upon any of the Secured Obligations in such order as Beneficiary
may determine, or said amount or any portion thereof may, at the sole option of
Beneficiary, be used in accordance with Paragraph 16 below in replacing or
restoring the improvements partially or totally destroyed to a condition
satisfactory to Beneficiary, in which event neither Trustee nor Beneficiary
shall be obligated to see to the proper application thereof, and the amount so
used shall not be deemed a payment on any of the Secured Obligations. Such
application and/or use shall not cure or waive any default or notice of default
hereunder or invalidate any act done pursuant to such notice; any unexpired
insurance and all returnable insurance premiums shall inure to the benefit of,
and pass to, the purchaser of the Property covered thereby at any trustee's sale
held hereunder.
1.3 DEFENSE OF ACTIONS. Trustor shall appear in and defend any action or
proceeding affecting or purporting to affect the security of this Deed of Trust,
and/or any additional or other security for any of the Secured Obligations, the
interest, rights, powers, and/or duties of Trustee and/or Beneficiary hereunder,
it being agreed, however, that Beneficiary and Trustee, or either of them, at
their or its option, may appear in and defend any such action or proceeding
and/or may commence any action or proceeding deemed necessary by it or them to
perfect, maintain, or protect such interest, rights, powers, and/or duties, all
in such manner and to such extent as to them seem fit, and Beneficiary is
authorized to pay, purchase, or compromise on behalf of Trustor any encumbrance
or claim which in its judgment appears or purports to affect the security hereof
or to be superior hereto; Trustor shall pay all costs and expenses,
including cost of evidence of title and attorneys' fees in a reasonable sum, in
any action or proceeding in which Beneficiary and/or Trustee may appear.
1.4 EVIDENCE OF TITLE. Trustor shall deliver forthwith to Beneficiary
upon request any and all certificates or other evidence of title which the
Trustor may secure through any proceeding for the registration of the title to
the Property, or otherwise, to be held by it during the term of this Deed of
Trust.
1.5 TAXES AND OTHER PAYMENTS. Trustor shall (a) pay, and submit to
Beneficiary, at least 10 days before default or delinquency, a receipt
evidencing payment of, all taxes and assessments affecting the Property, and any
accrued interest, cost and/or penalty thereon; (b) pay when due all encumbrances
(including any debt secured by deed of trust), ground rents, liens, and charges,
with all interest, fees and penalties, which now or hereafter appear to be a
lien on or affect all or any part of the Property; (c) pay when due all costs,
fees and expenses of these Trusts, including cost of evidence of title and
Trustee's fees in connection with sale, whether completed or not, which amounts
shall become due upon delivery to Trustee of a Declaration of Default and Demand
for Sale, as hereinafter provided; (d) pay when due all charges for utilities
and services relating to the Property.
1.6 ASSESSMENTS. Trustor shall pay all assessments against the Property
at least 10 days before any assessment, penalty, bond or bonds could or would be
issued in connection therewith.
1.7 WATER. Trustor shall pay at least 10 days before delinquency all
assessments (including any interest, costs and penalties) upon any water stock
covered hereby or used in connection with the Property, and all rents,
assessments or charges for water available to or used in connection with the
Property and/or for the flumes, ditches, pipes or aqueducts in which such water
may be furnished or delivered.
1.8 EXPENSES. Trustor shall pay immediately without demand, all sums
expended and expenses incurred by Trustee and/or Beneficiary, including
attorney's fees, under any of the terms of, or relating in any way to, this Deed
of Trust or the other Loan Documents, with interest from date of expenditure at
the highest interest rate accruing on any of the Secured Obligations.
1.9 RECORDS AND REPORTS. Trustor shall keep and maintain, in the county
in which the Property is located, complete and accurate books of account and
records reflecting the results of the operation of the Property and Trustor's
financial condition, together with copies of all written contracts, leases, and
other instruments affecting the Property. Beneficiary shall have the right at
all times to examine all such books, records, contracts, leases and other
instruments and to make copies thereof. Trustor shall provide to Beneficiary
annual financial statements with respect to the operations of the Property,
showing all items of income and expense with respect to the Property, and annual
financial statements with respect to Trustor, in each case within 90 days after
the end of Trustor's fiscal year. All such financial statements shall be
certified to be true, complete and correct by Trustor (or, if Trustor is a
corporation, by Trustor's chief financial officer). Trustor shall provide such
additional information and reports concerning the Property and Trustor's
financial condition as Beneficiary shall from time to time request.
1.10 ENVIRONMENTAL MATTERS. Trustor represents and warrants that neither
Trustor nor, to the best knowledge of Trustor, any other person, has ever caused
or permitted any "Hazardous Material" (as hereinafter defined) to be
incorporated in or disposed of on, under or at the Property or any part thereof
or any other real property legally or beneficially owned (or any interest or
estate in which is owned) by the Trustor, and neither the Property nor any part
thereof, nor any other real property legally or
beneficially owned (or any interest or estate in which is owned) by the Trustor
has ever been used (whether by the Trustor or, to the best knowledge of the
Trustor, by any other person) as a dump site or storage (whether permanent or
temporary) site for any Hazardous Material. The Trustor hereby agrees to
indemnify and defend the Beneficiary and hold the Beneficiary harmless from and
against any and all losses, liabilities, damages, injuries, costs, expenses and
claims of any and every kind whatsoever paid, incurred or suffered by, or
asserted against, the Beneficiary for, with respect to, or as a direct or
indirect result of, the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or release from the Property of any
Hazardous Material (including, without limitation, any losses, liabilities,
damages, injuries, costs, expenses or claims asserted or arising under the
Comprehensive Environmental Response, Compensation and Liability Act, any
so-called "Superfund" or "Superlien" law, or any other federal, state or local
statute, law, ordinance, code, rule, regulation, order or decree regulating,
relating to, or imposing liability or standards of conduct concerning, any
Hazardous Material), regardless of whether or not caused by, or within the
control of, the Trustor. For purposes of this Deed of Trust, "Hazardous
Material" means and includes any hazardous, toxic or dangerous waste, substance
or material defined as such in (or for purposes of) the Comprehensive
Environmental Response, Compensation and Liability Act, any so-called
"Superfund" or "Superlien" law, or any other federal, state or local statute,
law, ordinance, code, rule, regulation, order or decree regulating, relating to,
or imposing liability or standards of conduct concerning, any hazardous, toxic
or dangerous waste, substance or material, as now or at any time hereafter in
effect. If Trustor receives any notice of (i) the happening of any event
involving the use, spill, discharge or clean-up of any Hazardous Material or
(ii) any complaint, order, citation or notice with regard to air emissions,
water discharges, noise emissions or any other environmental, health or safety
matter affecting the Trustor (an "Environmental Complaint") from any person or
entity, including, but not limited to, the United States Environmental
Protection Agency ("EPA"), then the Trustor shall give within seven (7) business
days both oral and written notice of the same to the Beneficiary. Upon the
Beneficiary's receipt of any notice from any person or entity, including, but
not limited to, the EPA, asserting the existence of any Hazardous Material on,
or an Environmental Complaint pertaining to the Property which, if true, could
result in an order, suit or other action against Trustor and/or any part of the
Property by any governmental agency or otherwise which, in the sole opinion of
the Beneficiary, could jeopardize its security under this Deed of Trust, the
Beneficiary shall have the right, but not the obligation, to exercise any of its
rights and remedies under this Deed of Trust or to enter onto the Property or to
take such other actions as it deems necessary or advisable to clean up, remove,
resolve or minimize the impact of, or otherwise deal with, any such Hazardous
Material or Environmental Complaint. Any and all sums expended by the
Beneficiary for such purposes, together with interest thereon at the highest
rate accruing on any of the Secured Obligations until paid, shall be immediately
due and payable by Trustor to Beneficiary and shall be indebtedness secured by
this Deed of Trust.
2. FAILURE TO PAY OR PERFORM. Should Trustor fail or refuse to make any
payment or do any act which it is obligated hereunder to make or do, at the time
and in the manner herein provided, then Trustee and/or Beneficiary, each in its
discretion, each being hereby made the judge of the legality thereof, may,
without notice to or demand upon Trustor, and without releasing Trustor from any
obligation hereof or waiving any default, make or do the same in such manner and
to such extent as either may deem necessary to protect the security hereof,
either Trustee or Beneficiary being authorized to enter upon and take possession
of the Property for such purposes, and/or pay, purchase, contest or compromise
any claim, debt, lien, charge or encumbrance which in the judgment of either may
affect or appear to affect the security of this Deed of Trust, the interest of
Beneficiary or the rights, powers and/or duties of Trustee and/or Beneficiary
hereunder. Neither Trustee nor Beneficiary shall be under any
obligation to make any of the payments or do any of the acts above mentioned in
this Section 2. All sums expended by Trustee or Beneficiary in exercising any
right, privilege or remedy under this Deed of Trust, including but not limited
to costs of survey, evidence of title, court costs and attorneys' fees, together
with interest from the date of expenditure at the highest rate accruing on any
of the Secured Obligations, shall be due from Trustor on demand and shall be
secured by this Deed of Trust.
3. CONDEMNATION. Immediately upon its obtaining knowledge of the
institution or the threatened institution of any condemnation, eminent domain,
change of grade or other governmental proceeding affecting the Property, or any
part thereof, Trustor shall give written notice thereof to Beneficiary. Trustor
shall then, if requested by Beneficiary, file or defend its claim thereunder and
prosecute same with due diligence to its final disposition and shall cause any
awards or settlements to be paid over to Beneficiary for disposition pursuant to
the terms of this Deed of Trust. Trustor may be the nominal party in such
proceeding, but Beneficiary shall be entitled to participate in and to control
same and to be represented therein by counsel of its own choice; and Trustor
will deliver, or cause to be delivered, to Beneficiary such instruments as may
be requested by it from time to time to permit such participation. If the
Property is taken or diminished in value, or if a consent settlement is entered,
by or under threat of such proceeding, or in any other event, the award or
settlement payable to Trustor by virtue of its interest in the Property shall
be, and by these presents is, assigned, transferred and set over unto
Beneficiary, and when paid shall be used at Beneficiary's sole option to be
applied to the payment of any or all of the Secured Obligations, whether the
same be then due or not and in such order or manner as Beneficiary may
determine. 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.
4. NO WAIVER. By accepting payment of any sum secured hereby after its
due date, Beneficiary does not waive its right either to require prompt payment
when due of all other sums so secured or to declare default as herein provided
for failure so to pay.
5. PARTIAL RECONVEYANCE, ETC. At any time, or from time to time, without
liability therefor and without notice, upon written request of Beneficiary and
presentation of this Deed of Trust and any note or notes included in the Loan
Documents, for endorsement, and without affecting the personal liability of any
person for payment of the indebtedness secured hereby or the effect of this Deed
of Trust upon the remainder of the Property, Trustee may: reconvey any part of
said property; consent in writing to the making of any map or plat thereof; join
in granting any easement thereon; or join in any extension agreement or any
agreement subordinating the lien or charge hereof.
6. FULL RECONVEYANCE. Upon written request of Xxxxxxxxxxx stating that
all Secured Obligations have been paid and upon surrender to the Trustee of this
Deed of Trust and any note or notes included in the Loan Documents, for
cancellation and retention and upon payment of its fees, Trustee shall reconvey,
without warranty, the property then held hereunder. The recitals in such
reconveyance of any matters or facts shall be conclusive proof of the
truthfulness thereof. The grantee in any reconveyance may be described as "the
person or persons legally entitled thereto".
7. RELEASES. Without affecting the liability of any other person liable
for the payment of the Secured Obligations, and without affecting the lien or
charge of this Deed of Trust upon any property not then or theretofore released
as security, for the full amount of all of the Secured Obligations, Beneficiary
may from time to time, and without notice: release any person so liable, extend
the maturity or alter any of the terms of any such obligation, or grant other
indulgences, release or reconvey, or cause to be released or reconveyed at any
time at Beneficiary's option any parcel or portion or all of the real property
described herein, take or release any other or additional security for any
obligation herein mentioned, and/or make compositions or other arrangements with
debtors in relation thereto. If the Beneficiary at any time holds any
additional security for any of the Secured Obligations, it may enforce the sale
thereof or otherwise realize upon the same at its option, either before or
concurrently with or after a sale is made hereunder.
8. INSPECTIONS. Beneficiary is authorized by itself, its agents or
workmen, at any time and from time to time, to enter at any time upon all or any
part of the Property and the improvements thereon situated for the purpose of
inspecting the same, and for the purpose of performing any of the acts it is
authorized to perform under the terms of this Deed of Trust.
9. ABSOLUTE ASSIGNMENT OF RENTS. Notwithstanding any provisions to the
contrary contained in this Deed of Trust, Trustor hereby absolutely assigns to
Beneficiary, during the continuance of these trusts, all of Trustor's rights and
interests in all rents, issues and profits of the Property, and of any personal
property located thereon, with or without taking possession of the Property or
said personal property. Trustor hereby authorizes Beneficiary to collect the
rents, issues and profits of the Property and to direct each tenant of the
Property to pay all of the same for which such tenant is liable directly to
Beneficiary; provided that so long as there is no default in any of the terms or
conditions of this Deed of Trust or any of the Secured Obligations, Trustor
shall have the privilege of continuing to manage the Property as owner and
collecting and retaining the rents, issues and profits arising therefrom but
only as they accrue and become payable, rendering such accounts thereof as may
be required by Beneficiary. If there occurs a default in any of the terms or
conditions of this Deed of Trust or of the Secured Obligations, Trustor's
privilege of collecting the rents, issues and profits of the Property shall
automatically cease, and Beneficiary may at its option, either directly or by a
receiver appointed by a court, take any one or more the actions set forth in
Paragraphs 12 and 13 below, and the other provisions hereof, without further
notice or demand upon Trustor or any other person liable for the obligations
secured hereby or having an interest in the Property, without regard to the
adequacy of the security for the obligations secured hereby, with or without
bringing any action or proceeding, with or without having recorded any notice of
default and election to sell, and without limiting Beneficiary's other rights
and remedies. After deducting from the rents, issues and profits collected by
Beneficiary, all costs of maintenance and operation of the Property, and all
attorneys' fees incurred by Beneficiary, and all other costs, fees and expenses
incurred in connection therewith, Beneficiary may apply the balance of the
amounts collected to all or any part of the Secured Obligations in such order
and manner as Beneficiary may determine. Beneficiary's acceptance of rents,
issues and profits hereunder shall not constitute a waiver of any other right
which Trustee or Beneficiary may have under this Deed of Trust or applicable
law. Beneficiary's receipt and application of such rents, issues and profits
under this Paragraph, after the execution and delivery of a declaration of
default and demand for sale, or during the pendency of a trustee's sale or
foreclosure proceedings hereunder, shall not cure such default or affect such
sale proceeding. Upon Beneficiary's delivery of a demand for rents, issues or
profits to any tenants of the Property, such tenant is authorized to pay to
Beneficiary the same for which it is obligated, without liability on the part of
such tenant to make any inquiry into the existence of any default by Trustor.
Beneficiary shall have the right to compromise any claim or set-off against rent
which any tenant may assert pursuant to any of said leases and any such
compromise shall be binding and enforceable against Trustor, unless Beneficiary
acted in a grossly negligent and reckless manner, but, nothing contained in this
paragraph shall require Beneficiary to take any action to compromise or settle
any such claim. Trustor shall execute and deliver to Beneficiary such further
documents and instruments and take such further actions as Beneficiary may
require in order to effectuate or confirm the assignment and rights granted
herein. Failure or discontinuance of Beneficiary
at any time or from time to time to collect any such rents, issues and profits
shall not in any way impair the subsequent enforcement by Beneficiary of the
rights herein conferred upon it. Nothing contained herein, nor the exercise of
any right, power or authority herein granted to Beneficiary shall be construed
to be an affirmation by it of any tenancy, lease, or option, nor a subordination
of the lien of this Deed of Trust to any such tenancy, lease or option. Trustor
hereby further assigns to Beneficiary all prepaid rents and all moneys which may
have been or may hereafter be deposited with Trustor by any lessee of the
Property herein described or any part or portions thereof, to secure the payment
of any rent, and upon default in the performance of any of the provisions
hereof, Trustor agrees to deliver such rents and deposits to Beneficiary.
Trustor agrees that under no circumstances and in no event, whether Beneficiary
be in possession of any part or portion or the entirety of said Property, or
not, will Beneficiary ever be deemed to have assumed any of the duties of a
lessor under said leases or be responsible or owe any obligation to see to it
that the Property produces revenue; nor will Beneficiary otherwise have any of
the duties of a mortgagee in possession at any time or under any circumstances.
Trustor covenants, warrants and agrees never to assert that Beneficiary has any
such duties except under an express written agreement of assumption executed by
Beneficiary hereafter. Trustor shall and does hereby agree to indemnify and to
hold Beneficiary harmless from any liability, loss or damage which it might
incur under any said lease or under or by reason of this assignment and from any
claims and demands whatsoever which may be asserted against Beneficiary by
reason of an alleged obligation or undertaking on Beneficiary's part to perform
or discharge any of the terms, covenants or agreements contained in said leases.
Trustor reserves the right, while Beneficiary is in possession of the Property,
to propose leases or other revenue producing transactions to Beneficiary and
Beneficiary agrees to consider same.
10. PERSONAL PROPERTY SECURITY INTEREST. To the extent any property
covered by this Deed of Trust consists of an interest in personal property
covered by the California Uniform Commercial Code, this Deed of Trust
constitutes a security agreement and is intended to create a security interest
in such property in favor of Beneficiary. This Deed of Trust shall be
self-operative with respect to such property, but Trustor shall execute and
deliver on demand from Beneficiary one or more security agreements, financing
statements and other instruments as Beneficiary may request in order to impose
the lien hereof more specifically upon any such property, the terms and
conditions thereof to be as required by Beneficiary, in Beneficiary's sole and
absolute discretion. Without limiting the generality of the foregoing, as
security and collateral for all of the Secured Obligations, Trustor grants
Beneficiary a continuing security interest in all of Trustor's interest in all
of the following types of property, whether now owned or hereafter acquired and
wherever located (collectively, the "Collateral"), which are now or hereafter
used or useful for or in connection with the ownership, design, planning,
construction, development, use, operation, maintenance, or marketing of, or are
otherwise related to, the Property: All accounts, contract rights, general
intangibles, inventory, equipment, deposit accounts, documents, instruments,
letters of credit, farm products, fixtures and chattel paper (as those terms are
defined in the Uniform Commercial Code) including without limitation the
following: (1) All deposits, advance payments, security deposits, and rental
payments made by or on behalf of Trustor to others, or by others to Trustor,
including (but not limited to) those relating to any or all of the following:
management or operational services; marketing services; architectural,
engineering, or design services; utility services; cleaning, maintenance,
security, or repair services; rubbish or refuse removal services; sewer
services; rental of furnishings, fixtures or equipment; parking; or any other
service; (2) All reports, appraisals, drawings, plans, blueprints, studies,
specifications, certificates of occupancy, building permits, grading permits,
and other permits, surveys, licenses, consents, authorizations, utility
installation and service agreements, management contracts, franchise agreements,
rights and claims under insurance policies, rights to condemnation and other
awards and governmental claims, tax refunds, goodwill, designs, customer lists,
and all other rights,
privileges and franchises, and all amendments, modifications, supplements,
general conditions and addenda thereto; (3) All tradenames, trademarks,
tradestyles, service marks, logos, letterheads, advertising symbols, goodwill,
telephone numbers, advertising rights, negatives, prints, brochures, flyers,
pamphlets and other media items; (4) All warranties and guaranties, whether
written or oral, from any third party; (5) All legal and equitable claims,
causes of action, and rights against architects, engineers, designers,
contractors, subcontractors, suppliers, materialmen and any other party
supplying labor, services, materials or equipment, directly or indirectly, in
connection with the design, planning, construction, development, use, operation,
maintenance, or marketing of all or part of the Property; (6) All funds,
deposits and reserves at any time held by Beneficiary; (7) all rights in all
litigation presently or hereafter pending for any cause or claim (whether in
contract, tort or otherwise); and (8) All proceeds, insurance proceeds, and
products of, and all additions, substitutions, accessions, accessories,
replacements and improvements, to, any or all of the foregoing, and all
guarantees of and security for any and all of the foregoing, and all books and
records relating to any and all of the foregoing. Trustor agrees that all
property of every nature and description, whether real or personal, covered by
this Deed of Trust, together with all personal property covered by the security
interest granted hereby, in the Loan Documents or as contained in other
instruments executed or to be executed by Trustor, may, at Beneficiary's option,
be deemed to be encumbered as one unit, and that, upon the occurrence of any
event of default, this Deed of Trust and such security interest, at
Beneficiary's option, may be foreclosed or sold in the same proceeding, or in
separate proceedings, judicial or non-judicial. The filing of any financing
statement relating to any personal property or rights or interest generally or
specifically described herein shall not be construed to diminish or alter any of
Beneficiary's rights or priorities hereunder.
11. EVENTS OF DEFAULT; ACCELERATION. In addition to all other rights and
remedies of Beneficiary set forth in this Deed of Trust, or which it otherwise
has, under the other Loan Documents or any security or other agreement
heretofore, now or hereafter entered into between Trustor and Beneficiary, or at
law or in equity, all of the Secured Obligations shall immediately become due
and payable, irrespective of the maturity dates expressed in any note or
agreement evidencing the same, at the option of the Beneficiary, and without
demand or notice, upon the happening of any one or more of the following events,
any one of which shall constitute a default and event of default hereunder:
(i) any default or Event of Default shall occur under, or as defined in, any of
the Loan Documents; or (ii) any sale, lease (except for tenant leases entered
into in the ordinary course of business for a period of not more than 3 years),
transfer, or encumbrance of the Property or any portion thereof or interest
therein or any personal property in which Beneficiary has a security interest
(other than a sale of obsolete or worn out personal property which is being
replaced), or any agreement to do any of the foregoing, without the prior
written consent of Beneficiary being first obtained; or (iii) any divestment of
the title of any Trustor to the Property, or any part thereof, or any interest
therein, in any manner whatsoever, whether voluntary or involuntary; or (iv) any
of the Property shall be subject to any abatement proceeding. In addition to
the foregoing, an Event of Default shall be deemed to occur if an aggregate of
more than * of the stock of Trustor is transfered in any one or more related or
unrelated transactions. Upon presentation of a signed statement by Beneficiary
setting forth facts showing that one or more of the foregoing events has
occurred, Trustee is authorized to accept as true and conclusive such statement
and all facts contained therein and to act on such statement in such manner as
it deems appropriate. No specification herein of an event which constitutes a
default and event of default hereunder shall limit any provision of any other
Loan Document specifying that an event is a default or event of default
thereunder, whether or not the events so specified are similar. Without
limiting Beneficiary's other rights and remedies, upon the occurrence of any
default or Event of Default, the interest rate on the Secured Obligations shall
increase by an additional 5% per annum until such default has been cured.
*50%
12. DECLARATION OF DEFAULT AND SALE. In addition to all other rights and
remedies of Beneficiary set forth in this Deed of Trust, or at law or in equity,
upon the occurrence of any of the foregoing events of default set forth in
Paragraph 11, above, Beneficiary shall have the option to execute and deliver to
Trustee a written declaration of default and demand for sale and written notice
of default and election to cause to be sold the Property, and, in such event,
shall surrender to Trustee this Deed of Trust, any note or notes included in the
Loan Documents, and all documents evidencing any expenditures hereunder.
Thereafter such notice of default and election to cause the Property to be sold
shall be duly filed for record. Beneficiary, from time to time before Trustee's
Sale, may rescind any such notice by executing and delivering to Trustee a
written notice of such rescission, which notice, when recorded, also shall
constitute a cancellation of any prior declaration of default and demand for
sale. The exercise by Beneficiary of such right of rescission shall not
constitute a waiver of any breach or default then existing or subsequently
occurring, or impair the right of Beneficiary to execute and deliver to Trustee,
as above provided, other declarations of default and demand for sale, and
notices of breach or default, and of election to cause to be sold the Property
to satisfy the obligations hereof, nor otherwise affect any provision, covenant
or condition of said note or notes or this Deed of Trust or any other Loan
Documents or any of the rights, obligations or remedies of the parties
thereunder. After the lapse of such time as may then be required by law after
recordation of notice of default and election to sell, without demand on
Trustor, Trustee, first having given notice of sale as then required by law, may
sell the Property at the time and place of sale fixed by it in the notice of
sale, either in separate parcels or as a whole, and in such order as Beneficiary
may determine, at public auction to the highest bidder for cash in lawful money
of the United States of America, payable at time of sale. Trustee may (and,
upon request by Beneficiary, 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 fixed
by the preceding postponement. Without further notice Trustee may make such
sale at the time to which the same shall have been so postponed. Trustee shall
deliver to the purchaser at any such sale its Deed conveying the property so
sold, but without any covenant or warranty, express or implied, and the recitals
in such deed or deeds of any matters or facts affecting the regularity or
validity of said sale shall be conclusive proof of the truthfulness thereof; and
such deed or deeds shall be conclusive against all persons as to all matters or
facts therein recited. Any person, including Trustor, Trustee, or Beneficiary
may purchase at such sale. If, for any reason, Trustor is in possession of the
Property at the time of such sale, Trustor shall immediately surrender
possession of the Property to the purchaser thereof, without demand. Trustee
shall apply the proceeds of any such sale to payment of: (a) all reasonable
costs, fees, charges, and expenses of Trustee and of these trusts, fees of any
attorneys employed by Trustee and/or Beneficiary pursuant to the provisions
hereof, or in connection herewith, Trustee's fees in connection with sale, and
all expenses of sale, including the cost of procuring guarantee or evidence of
title in connection with the sale proceedings; (b) the Secured Obligations and
all other sums then secured hereby, including without limitation all sums
advanced or expended under the terms hereof and not then repaid, the amount
unpaid on any additional sums borrowed in accordance with the provisions hereof,
the interest on each of the foregoing items, all in such manner and order of
priority or preference as the Beneficiary may in its sole and absolute
discretion determine; (c) the remainder, if any, to the person or persons
legally entitled thereto, upon proof satisfactory to the Trustee of such right.
13. ADDITIONAL RIGHTS. In addition to all other rights and remedies of
Beneficiary set forth in this Deed of Trust, or at law or in equity, upon the
occurrence of any of the foregoing events of default set forth in Paragraph 11,
above, Beneficiary, either directly or by a receiver appointed by a court, may
at its
option do any or all of the following, without notice to or demand upon Trustor,
without regard to the adequacy of the security for the obligations secured
hereby, without bringing any action or proceeding, and without having given or
recorded a notice of default and election to sell: (a) enter into possession
and hold, occupy, possess and enjoy the Property; (b) make, cancel, enforce or
modify leases pertaining to the Property; (c) obtain and eject tenants; (d) set
or modify rents; (e) collect all or any part of the rents, issues and profits of
the Property; (f) do all acts respecting the Property as Beneficiary (or such
receiver) may deem appropriate or necessary to preserve its value; and (g) apply
any funds in the possession of the Beneficiary (or such receiver), after
deducting the expenses of maintenance and operation of the Property which may be
incurred, to the payment of any obligations secured hereby, in such order as
Beneficiary may determine. If Beneficiary elects to seek the appointment of a
receiver, Trustor hereby irrevocably, unconditionally and expressly consents to
the appointment of such receiver, without regard to the adequacy of the security
for the obligations secured hereby, and waives any requirement of bond or other
security.
14. OTHER SECURITY. Trustee and Beneficiary, and each of them, shall be
entitled to enforce payment and/or performance of any indebtedness or
obligations secured hereby and to exercise all rights and powers under this Deed
of Trust or under any other agreement or any laws now or hereafter in force,
notwithstanding some or all of the said indebtedness and obligations secured
hereby are now or shall hereafter be otherwise secured, whether by mortgage,
deed of trust, pledge, lien, assignment or otherwise. Neither the acceptance of
this Deed of Trust nor its enforcement whether by court action or pursuant to
the power of sale or other powers herein contained, shall prejudice or in any
manner affect Trustee's or Beneficiary's right to realize upon or enforce any
other security now or hereafter held by Trustee or Beneficiary, it being agreed
that Trustee and Beneficiary, and each of them, shall be entitled to enforce
this Deed of Trust and any other security now or hereafter held by Beneficiary
or Trustee in such order and manner as they or either of them may in their
uncontrolled discretion determine.
15. REPRESENTATIONS AND WARRANTIES. Trustor and each signatory who signs
on its behalf hereby jointly and severally represents and warrants as follows:
(a) That Trustor is a corporation duly formed, validly existing and in
good corporate standing under the laws of the jurisdiction of its incorporation
and with power to (i) incur the indebtedness evidenced by the Loan Documents;
(ii) grant this Deed of Trust; and (iii) enter into the other Loan Documents
and all other instruments executed and delivered to Beneficiary concurrently
herewith;
(b) That this Deed of Trust, the Loan Documents and all other instruments
executed and delivered to Beneficiary concurrently herewith were executed in
accordance with the requirements of law and in accordance with any requirements
of Trustor's articles of incorporation, and any amendments thereto;
(c) That the execution by Trustor of this Deed of Trust, the Loan
Documents, and all other instruments executed and delivered to Beneficiary
concurrently herewith, and the full and complete performance by Trustor of the
provisions thereof, is authorized by Trustor's bylaws and by appropriate
resolution of Trustor's board of directors and will not result in any breach of,
or constitute a default under, or result in the creation of any lien, charge or
encumbrance (other than those contained herein or in any instrument delivered to
Beneficiary concurrently herewith) upon any property or assets of Trustor under
either the articles of incorporation or bylaws of Trustor or any indenture,
mortgage, Deed of Trust, bank loan or credit agreement or other instrument or
agreement to which Trustor is a party or by which Trustor or its property is
bound;
(d) That save and except for taxes and assessments which are to be paid by
Trustor as specified herein, Trustor will not create or suffer or permit to be
created, subsequent to the date of the execution and delivery of this Deed of
Trust, any other lien or encumbrance upon the Property whether or not superior
hereto;
(e) That as of the date of execution of this Deed of Trust it is the legal
owner of the Property, and no tenant or other person has any option or right of
any kind to purchase or lease the Property or any part thereof.
16. APPLICATION OF PROCEEDS OF INSURANCE. If the proceeds of the
insurance described in Paragraph 1.2 above are to be used for restoration,
repair or replacement of the Property (hereinafter referred to as the "Work"),
such proceeds shall be paid out by Beneficiary from time to time to Trustor (or,
at the option of Beneficiary, jointly to Trustor and the persons furnishing
labor and/or material incident to the Work or directly to such persons) as the
Work progresses, subject to the following conditions: (a) if the cost of the
Work estimated by Beneficiary shall exceed * , prior to the commencement thereof
(other than Work to be performed on an emergency basis to protect the Property
or prevent interference therewith), (i) an architect or engineer, approved by
Beneficiary, shall be retained by Trustor (at Trustor's expense) and charged
with the supervision of the Work, and (ii) Trustor shall have prepared,
submitted to Beneficiary and secured Beneficiary's written approval of the plans
and specifications for such Work; (b) each request for payment by Trustor shall
be made on ten (10) days' prior written notice to Beneficiary and shall be
accompanied by a certificate to be executed by the architect or engineer
supervising the Work (if one is required pursuant to subparagraph (a) above),
otherwise by Trustor or an executive officer or general partner of Trustor,
stating, among such other matters as may be reasonably required by Beneficiary,
that: (i) all of the Work completed has been done in compliance with the
approved plans and specifications (if any be required pursuant hereto); (ii) the
sum requested is justly required to reimburse Trustor for payments by Trustor
to, or is justly due to, the contractor, subcontractors, materialmen, laborers,
engineers, architects or other persons rendering services or materials for the
Work (giving a description of such services and materials); (iii) when added to
all sums previously paid out by Trustor, the sum requested does not exceed the
value of the Work done to the date of such certificate; and (iv) the amount of
insurance proceeds remaining in the hands of Beneficiary when combined with the
Trustor's funds, if any, to be utilized for payment of the Work will be
sufficient on completion of the Work to pay for the same in full (giving, in
such reasonable detail as the Beneficiary may require, an estimate of the cost
of such completion); (c) each request shall be accompanied by waivers of lien,
satisfactory in form and substance to Beneficiary, covering that part of the
Work for which payment or reimbursement is being requested; (d) there has not
occurred any event of default since the hazard, casualty or contingency giving
rise to payment of the insurance proceeds; (e) in the case of the request for
the final disbursement, such request is accompanied by a copy of any Certificate
of Occupancy or other certificate required by any legal requirement to render
occupancy of the damaged portion of the Property lawful; and (f) if, in
Beneficiary's judgment, based upon the estimate described above the amount of
such insurance proceeds will not be sufficient to complete the Work (which
determination may be made prior to or during the performance of the Work),
Trustor shall deposit with Beneficiary, immediately upon a request therefor, an
amount of money in an amount which, when added to such insurance proceeds, will
be sufficient, in Beneficiary's judgment, to complete the Work. If, upon
completion of the Work, any portion of the insurance proceeds has not been
disbursed to Trustor (or one or more of the other aforesaid persons) incident
thereto, Beneficiary may, at Beneficiary's sole option, disburse such balance to
Trustor or apply such balance toward the payment of the Secured Obligations.
Beneficiary shall have the right to withhold from each such disbursement ten
percent (10%) (or such
greater amount, if permitted or required by any legal requirement) of the amount
otherwise herein provided to be disbursed, and to continue to withhold such sum,
until the time permitted for perfecting liens against the Property has expired
(or such longer period of time as permitted or required by any legal
requirement), at which time the amount withheld shall be disbursed to Trustor
(or to Trustor and any person or persons furnishing labor and/or material for
the Work or directly to such persons). Notwithstanding anything here to the
contrary, Beneficiary shall, without limiting its other rights and remedies,
have the right to apply the whole or any part of such insurance proceeds to the
Secured Obligations at any time upon the occurrence of any event of default.
*$150,000
17. INUREMENT. This Deed of Trust applies to, inures to the benefit of,
and binds all parties hereto, their heirs, legatees, devisees, administrators,
executors, successors and assigns. The term "Beneficiary" shall include not
only the original Beneficiary hereunder but also any future owner and holder,
including pledgees, of the note or notes secured hereby.
18. SEPARATE PROPERTY. Each married person who joins in executing this
Deed of Trust and any note or notes secured thereby, hereby agrees and expressly
assents to the liability of his or her separate property for all his or her
debts and obligations herein mentioned. Such assent, however, shall not be
deemed to create a present lien or encumbrance upon any of his or her separate
property not described herein.
19. INVALIDITY. If any provision hereof should be held unenforceable or
void, in whole or in part, then such unenforceable or void provision or part
shall be deemed separable from the remaining provisions and shall in no way
affect the validity of this Deed of Trust.
20. ACCEPTANCE; SUBSTITUTION OF TRUSTEE. Trustee accepts these Trusts
when this Deed of Trust, duly executed and acknowledged is made a public record
as provided by law. Beneficiary may substitute the Trustee hereunder from time
to time by an instrument in writing in any manner now or hereafter provided by
law. Such writing, upon recordation, shall be conclusive proof of proper
substitution of such successor trustee or trustees, who shall thereupon and
without conveyance from the predecessor trustee, succeed to all its title,
estate, rights, powers and duties.
21. WAIVERS. Trustor waives any requirements of presentment, demands for
payment, notices of nonpayment or late payment, protest, notices of protest,
notices of dishonor, and all other formalities. Trustor waives all rights or
privileges it might otherwise have to require Trustee or Beneficiary to proceed
against or exhaust the assets encumbered hereby or by any other security
document or instrument securing the Secured Obligations or to proceed against
any guarantor, or to pursue any other remedy available to Beneficiary in any
particular manner or order under the legal or equitable doctrine or principle of
marshalling or suretyship and further agrees that Trustee or Beneficiary may
proceed against any or all of the assets encumbered hereby or by any other
security document or instrument securing the Secured Obligations in the event of
default in such order and manner as Beneficiary in its sole discretion may
determine.
22. NO NOTICE. Trustee shall be under no obligation to notify any party
hereto of any action or proceeding of any kind in which Trustor, Beneficiary
and/or Trustee shall be a party, unless brought by Trustee, or of any pending
sale under any other Deed of Trust.
23. CONSTRUCTION. In this Deed of Trust, whenever the context so
requires, the masculine gender includes the feminine and/or neuter, and the
singular number includes the plural. The term "and/or" as used herein shall
mean one or the other or both or any one or all of the things or persons
referred to.
24. STATEMENTS. For any statement regarding the obligations secured
hereby, a charge, which Trustor agrees to pay, may be made in an amount not
exceeding the maximum allowed by law at the time any such statement is
requested.
25. WAIVER OF STATUTE OF LIMITATIONS. The right to plead any and all
statutes of limitations as a defense to any of the Secured Obligations is hereby
waived by Trustor.
26. WAIVER OF RIGHT TO JURY TRIAL. BENEFICIARY AND TRUSTOR EACH HEREBY
WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING
OUT OF, OR IN ANY WAY RELATING TO: (I) THIS DEED OF TRUST; OR (II) ANY OTHER
PRESENT OR FUTURE INSTRUMENT OR AGREEMENT BETWEEN BENEFICIARY AND TRUSTOR; OR
(III) ANY CONDUCT, ACTS OR OMISSIONS OF BENEFICIARY OR TRUSTOR OR ANY OF THEIR
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSONS
AFFILIATED WITH BENEFICIARY OR TRUSTOR; IN EACH OF THE FOREGOING CASES, WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
27. IRREVOCABLE. The trust created hereby is irrevocable by the Trustor.
28. COPY OF NOTICE. The undersigned Trustor requests that a copy of any
Notice of Default and any notice of sale hereunder be mailed to him at his
mailing address hereinbefore set forth.
29. TIME OF THE ESSENCE. Time of each payment and performance of each of
Trustor's obligations pursuant to this Deed of Trust, the Loan Documents and
each other instrument or obligation of Trustor secured hereby is specifically
declared to be of the essence.
30. INDEMNITY. Trustor hereby agrees to defend, indemnify and hold
Beneficiary free and harmless from and against any and all costs, damages, fees,
expenses, loss, claims, judgments and liability, including but not limited to,
attorneys' fees and court costs, which Beneficiary may sustain or incur, based
upon, related to, or arising out of this Deed of Trust or any other Loan
Documents or their enforcement (whether or not any lawsuit be brought, other
than those resulting from Beneficiary's own gross negligence or willful
misconduct).
31. RIGHTS CUMULATIVE. All rights and remedies of Beneficiary provided
for herein are cumulative and shall be in addition to all other rights and
remedies provided in the other Loan Documents, or at law or in equity.
32. INTEGRATION. This Deed of Trust and the Loan Documents set forth in
full the terms of the agreement between the parties and the same may not be
modified or amended except by a writing signed by the party against whom
enforcement is sought.
33. GOVERNING LAW. This Deed of Trust shall be governed by and construed
in accordance with the laws of the State of California.
Trustor:
QAD, INC.
By
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Title
-------------------------------
By
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Title
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STATE OF CALIFORNIA )
) ss.
COUNTY OF ________________ )
On _____________________, 1996, before me,_______________________________
____________________________________________, Notary Public, personally appeared
____________________________________________________________________, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
_______________________________
(Seal)
[Legal description of Property omitted]