EXHIBIT 10.9
RECORDATION REQUESTED BY
AND WHEN RECORDED MAIL TO:
Attn: Xxxxxx Xxxxx
Xxxxx Intercontinental Trading Company
00000 Xxxxxx Xxxxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
_____________________________________________________________________________
SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY
DEED OF TRUST
THIS DEED OF TRUST IS MADE THIS DATE February 19, 2003, from XXX X. XXXXXX and
XXXXXXX XXXXXX, Husband and Wife, as Community Property, whose address is 0000
Xxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000 (referred to below as "Trustor"),
for the benefit of Xxxxx Intercontinental Trading Company whose address is 00000
Xxxxxx Xxxxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 (referred to below sometimes as
"Lender" and sometimes as "Beneficiary"), to Xxxxxxx Title of California, Inc.
(referred to below as "Trustee").
CONVEYANCE AND GRANT. FOR VALUABLE CONSIDERATION, TRUSTOR IRREVOCABLY GRANTS,
TRANSFERS AND ASSIGNS TO TRUSTEE IN TRUST, WITH POWER OF SALE, FOR THE BENEFIT
OF LENDER AS BENEFICIARY, all of Trustor's right, title, and interest in and to
the following described real property, together with all existing or
subsequently erected or affixed buildings, improvements and fixtures; all
easements, rights of way, and appurtenances; all water, water rights and ditch
rights (including stock in utilities with ditch or irrigation rights); and all
other rights, royalties, and profits relating to the real property, including
without limitation all minerals, oil, gas, geothermal and similar matters,
located in Los Angeles County, State of California (the "Real Property"):
SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF BY THIS REFERENCE.
THE REAL PROPERTY OR ITS ADDRESS IS COMMONLY KNOWN AS 0000 XXXXXXXXXXX XXXXX,
XXXXXX, XXXXXXXXXX 00000. The Assessor's Parcel Number for the Real Property is
0000-000-000.Trustor presently assigns to Lender (also known as Beneficiary in
this Deed of Trust) all of Trustor's right, title, and interest in and to all
present and future leases of the Property and all Rents from the Property. This
is an absolute assignment of Rents made in connection with an obligation secured
by real property pursuant to California Civil Code Section 2938. In addition,
Trustor
grants Lender a Uniform Commercial Code security interest in the Rents and the
Personal Property defined below.
DEFINITIONS. The following words shall have the following meanings when used in
this Deed of Trust. Terms not otherwise defined in this Deed of Trust shall have
the meanings attributed to such terms in the Uniform Commercial Code. All
references to dollar amounts shall mean amounts in lawful money of the United
States of America.
BENEFICIARY. The word "Beneficiary" means Xxxxx Intercontinental Trading
Company, its successors and assigns. Xxxxx Intercontinental Trading
Company, also is referred to as "Lender" in this Deed of Trust.
DEED OF TRUST. The words "Deed of Trust" mean this Deed of Trust among
Trustor, Lender, and Trustee, and includes without limitation all
assignment and security interest provisions relating to the Personal
Property and Rents.
GUARANTOR. The word "Guarantor" means and includes without limitation any
and all guarantors, sureties, and accommodation parties in connection with
the Indebtedness.
IMPROVEMENTS. The word "Improvements" means and includes without limitation
all existing and future improvements, buildings, structures, mobile homes
affixed on the Real Property, facilities, additions, replacements and other
construction on the Real Property.
INDEBTEDNESS. The word "Indebtedness" means all principal and interest
payable under the Promissory Note and any amounts expended or advanced by
Lender to discharge obligations of Trustor or expenses incurred by Trustee
or Lender to enforce obligations of Trustor under this Deed of Trust,
together with interest on such amounts as provided in this Deed of Trust.
LENDER. The word "Lender" means Xxxxx Intercontinental Trading Company, its
successors and assigns.
PERSONAL PROPERTY. The words "Personal Property" mean all equipment,
fixtures, and other articles of personal property now or hereafter owned by
Trustor, and now or hereafter attached or affixed to the Real Property;
together with all accessions, parts, and additions to, all replacements of,
and all substitutions for, any of such property; and together with all
proceeds (including without limitation) insurance proceeds and refunds of
premiums) from any sale or other disposition of the Property. Personal
Property does not include jewelry, clothing, motor vehicles held for a
personal nature, household furniture and furnishings, pets, books, works of
art, and family memorabilia.
PROPERTY. The word "Property" means collectively the Real Property and the
Personal Property.
REAL PROPERTY. The words "Real Property" mean the property, interests and
rights described above in the "Conveyance and Grant" section.
PROMISSORY NOTE/REIMBURSEMENT AGREEMENT. The words "Note" or "Reimbursement
Agreement" mean the Note Secured by Deed of Trust ("Note" or "Promissory
Note") dated on or about February 19, 2003, in the principal amount of
$500,000 by and between Trustor and Lender, together with all renewals,
extensions, modifications, and substitutions for the Promissory Note. The
terms "Promissory Note" and "Reimbursement Agreement" may be used
interchangeably herein.
RELATED DOCUMENTS. The words "Related Documents" mean and include without
limitation all Promissory Notes, credit agreements, loan agreements,
environmental agreements,, guaranties, security agreements, mortgages,
deeds of trust, and all other instruments, agreements and documents,
whether now or hereafter existing, executed in connection with the
Indebtedness.
TRUSTEE. The word "Trustee" means Xxxxxxx Title of California, Inc. and any
substitute or successor trustees.
TRUSTOR. The word "Trustor" means any and all persons and entities
executing this Deed of Trust, including without limitation all Trustors
named above. To protect the security of this Deed of Trust, Trustor agrees:
THIS DEED OF TRUST, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST
IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE (1) PAYMENT OF THE
INDEBTEDNESS EVIDENCED BY ONE PROMISSORY NOTE EXECUTED ON OR ABOUT THE DATE
HEREON; (2) PERFORMANCE OF ANY AND ALL OBLIGATIONS OF TRUSTOR UNDER THE
PROMISSORY NOTE, LEASE, RELATED DOCUMENTS, AND THIS DEED OF TRUST; (3)
PERFORMANCE OF TRUSTOR OF EACH TERM, COVENANT, CONDITION AND OBLIGATION OF ANY
OTHER AGREEMENT TRUSTOR HAS OR WILL HEREINAFTER ENTER WITH BENEFICIARY. THIS
DEED OF TRUST IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS:
PAYMENT AND PERFORMANCE. Except as otherwise provided in this Deed of Trust,
Trustor shall pay to Lender all amounts secured by this Deed of Trust as they
become due, and shall strictly and in a timely manner perform all of Trustor's
obligations under the Promissory Note, this Deed of Trust, and the Related
Documents.
POSSESSION AND MAINTENANCE OF THE PROPERTY. Trustor agrees that Trustor's
possession and use of the Property shall be governed by the following
provisions:
POSSESSION AND USE. Until the occurrence of an Event of Default, or until
Lender exercises its right to collect Rents as provided for in the
Assignment of Rents form executed by Grantor in connection with the
Property, Trustor may (a) remain in possession and control of the Property,
(b) use, operate or manage the Property, and (c) collect any Rents from the
Property.
DUTY TO MAINTAIN. Trustor shall maintain the Property in tenantable
condition and promptly perform all repairs, replacements, and maintenance
necessary to preserve its value.
HAZARDOUS SUBSTANCES. The terms "hazardous waste," "hazardous substance,"
"disposal," "release," and "threatened release," as used in this Deed of
Trust, shall have the same meanings as set forth in the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund
Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("XXXX"),
the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et
seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901,
et seq., Chapters 6.5 through 7.7 of Division 20 of the California Health
and Safety Code, Section 25100, et seq., or other applicable state or
Federal laws, rules, or regulations adopted pursuant to any of the
foregoing. The terms "hazardous waste" and "hazardous substance" shall also
include, without limitation, petroleum and petroleum by-products or any
fraction thereof and asbestos. Trustor represents and warrants to Lender
that: (a) During the period of Trustor's ownership of the Property, there
has been no use, generation, manufacture, storage, treatment, disposal,
release or threatened release of any hazardous waste or substance by any
person on, under, about or from the Property; (b) Trustor has no knowledge
of, or reason to believe that there has been, except as previously
disclosed to and acknowledged by Xxxxxx in writing, (i) any use,
generation, manufacture, storage, treatment, disposal, release, or
threatened release of any hazardous waste or substance on, under, about or
from the Property by any prior owners or occupants of the Property or (ii)
any actual or threatened litigation or claims of any kind by any person
relating to such matters; and (c) Except as previously disclosed to and
acknowledged by Xxxxxx in writing, (i) neither Trustor nor any tenant,
contractor, agent or other authorized user of the Property shall use,
generate, manufacture, store, treat, dispose of, or release any hazardous
waste or substance on, under, about or from the Property and (ii) any such
activity shall be conducted in compliance with all applicable federal,
state, and local laws, regulations and ordinances, including without
limitation those laws, regulations, and ordinances described above. Trustor
authorizes Lender and its agents to enter upon the Property to make such
inspections and tests, at Trustor's expense, as Lender may deem appropriate
to determine compliance of the Property with this section of the Deed of
Trust. Any inspections or tests made by Lender shall be for Lender's
purposes only and shall not be construed to create any responsibility or
liability on the part of Under to Trustor or to any other person. The
representations and warranties contained herein are based on Trustor's due
diligence in investigating the Property for hazardous waste and hazardous
substances. Trustor hereby (a) releases and waives any future claims
against Lender for indemnity or contribution in the event Trustor becomes
liable for cleanup or other costs under any such laws, and (b) agrees to
indemnify and hold harmless Lender against any and all claims, losses,
liabilities, damages, penalties, and expenses which Lender may directly or
indirectly sustain or suffer resulting from a brea~ch of this section of
the Deed of Trust or as a consequence of any use, generation, manufacture,
storage, disposal, release or threatened release of a hazardous waste or
substance on the properties. The provisions of this section of the Deed of
Trust, including the obligation to indemnify, shall survive the payment of
the Indebtedness and the satisfaction and reconveyance of the lien of this
Dead of Trust and shall not be affected by Xxxxxx's acquisition of any
interest in the Property, whether by foreclosure or other-wise.
NUISANCE, WASTE. Trustor shall not cause, conduct or permit any nuisance
nor commit, permit, or suffer any stripping of or waste on or to the
Property or any portion of the Property. Without limiting the generality of
the foregoing, Trustor will not remove, or grant to any other party the
right to remove, any timber, minerals (including oil and gas), soil, gravel
or rock products without the prior written consent of Lender.
REMOVAL OF IMPROVEMENTS. Trustor shall not demolish or remove any
Improvements from the Real Property without the prior written consent of
Lender. As a condition to the removal of any Improvements, Lender may
require Trustor to make arrangements satisfactory to Lender to replace such
Improvements with Improvements of at least equal value.
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS. Trustor shall promptly comply
with all laws, ordinances, and regulations, now or hereafter in
effect, of all governmental authorities applicable to the use or occupancy
of the Property, including without limitation, the Americans With
Disabilities Act, Trustor may contest in good faith any such law,
ordinance, or regulation and withhold compliance during any proceeding,
including appropriate appeals, so long as Trustor has notified Lender in
writing prior to doing so and so long as, in Xxxxxx's sole opinion,
Xxxxxx's interests in the Property are not jeopardized. Lender may require
Trustor to post adequate security or a surety bond, reasonably satisfactory
to Lender, to protect Xxxxxx's interest.
DUTY TO PROTECT. Xxxxxxx agrees neither to abandon nor leave unattended the
Property. Trustor shall do all other acts, in addition to those acts set
forth above in this section, which from the character and use of the
Property are reasonably necessary to protect and preserve the Property.
DUE ON SALE - CONSENT BY XXXXXX. Lender may, at its option, declare immediately
due and payable all sums secured by this Deed of Trust upon the sale or
transfer, without the Lender's prior written consent, of all or any part of
trustor's interest in the Real Property. A "sale or transfer" means the
conveyance of Real Property or any right, title or interest therein; whether
legal, beneficial or equitable; whether voluntary or involuntary; whether by
outright sale, deed, installment sale contract, land contract, contract for
deed, leasehold interest with a term greater than three (3) years, lease-option
contract, or by sale, assignment, or transfer of any beneficial interest in or
to any land trust holding title to the Real Property, or by any other method of
conveyance of Real Property interest. If any Trustor is a corporation,
partnership or limited liability company, transfer also includes any change in
ownership of more than fifty percent (50%) of the voting stock, partnership
interests or limited liability company interests, as the case may be, of
Trustor. However, this option shall not be exercised by Lender if such exercise
is prohibited by applicable law.
TAXES, ASSESSMENTS AND LIENS. The following provisions relating to the taxes,
assessments, encumbrances, charges and liens on the Property are a part of this
Deed of Trust.
PAYMENT. Trustor shall pay when due (and in all events at least ten (10) days
prior to delinquency) all taxes, special taxes, assessments, charges (including
water and sewer), fines and impositions levied against or on account of the
Property, and shall pay when due all claims for work done on or for services
rendered or material furnished to the Property, Trustor shall maintain the
Property free of all liens having priority over or equal to the interest of
Lender under this Deed of Trust, except for the three prior recorded liens, and
the lien of taxes and assessments not due and except as otherwise provided in
this Deed of Trust. Should Trustor fail to make any payment or to do any act as
herein provided, then Beneficiary or Trustee, but without obligation so to do
and without notice to or demand upon Trustor and without releasing Trustor from
any obligation hereof, may: make or do the same in such manner and to such
extent as either may deem
necessary to protect the security hereof. Beneficiary or Trustee being
authorized to enter upon said Property for such purposes: appear in and defend
any action or proceeding purporting to affect the security hereof or the rights
or powers of Beneficiary or Trustee; pay, purchase, contest or compromise any
incumbrance, charge or lien which in the judgment of either appears to be prior
or superior hereto; and, in exercising any such powers, pay necessary expenses,
employ counsel and pay his reasonable fees.
Trustor shall pay Beneficiary immediately and without demand all sums so
expended by Beneficiary or Trustee, with interest from date of expenditure at
the maximum amount allowed by law in effect at the date hereof, and to pay for
any statement provided for by law in effect at the date hereof regarding the
obligation secured hereby any amount demanded by the Beneficiary not to exceed
the maximum allowed by law at the time when said statement is demanded.
RIGHT TO CONTEST. Trustor may withhold payment of any tax, assessment, or claim
in connection with a good faith dispute over the obligation to pay, so long as
Xxxxxx's interest in the Property is not jeopardized. If a lien arises or is
filed as a result of nonpayment, Trustor shall within fifteen (15) days after
the lien arises or, if a lien is filed, within fifteen (15) days after Trustor
has notice of the filing, secure the discharge of the lien, or if requested by
Xxxxxx, deposit with Lender cash or a sufficient corporate surety bond or other
security satisfactory to Lender in an amount sufficient to discharge the lien
plus any costs and attorneys' fees or other chaiges that could accrue as a
result of a foreclosure or sale under the lien. In any contest, Trustor shall
defend itself and Lender and shall satisfy any adverse judgment before
enforcement against the Property. Trustor shall name Xxxxxx as an additional
obligee under any surety bond furnished in the contest proceedings.
EVIDENCE OF PAYMENT. Trustor shall upon demand furnish to Lender satisfactory
evidence of payment of the taxes or assessments and shall authorize the
appropriate governmental official to deliver to Lender at any time a written
statement of the taxes and assessments against the Property.
NOTICE OF CONSTRUCTION. Trustor shall notify Lender at least fifteen (15) days
before any work is commenced, any services are furnished, or any materials are
supplied to the Property, if any mechanic's lien, materialmen's lien, or other
lien could be asserted on account of the work, services, or materials. Trustor
will upon request of Lender furnish to Lender advance assurances satisfactory to
Lender that Trustor can and will pay the cost of such improvements.
PROPERTY DAMAGE INSURANCE. The following provisions relating to insuring the
Property are a part of this Deed of Trust.
MAINTENANCE OF INSURANCE. Trustor shall procure and maintain policies of fire
insurance with standard extended coverage endorsements on a replacement basis
for the full insurable value covering all Improvements on the Real Property in
an amount sufficient to avoid application of any coinsurance clause, and with a
standard mortgagee clause in favor of Xxxxxx. Trustor shall also procure and
maintain comprehensive general liability insurance in such coverage amounts as
Lender may request with trustee and Xxxxxx being named as additional insureds in
such liability insurance policies. Additionally, Trustor shall maintain such
other insurance, including but not limited to hazard, business interruption, and
boiler insurance, as Lender, may reasonably require. Notwithstanding the
foregoing, in no event shall Trustor be required to provide hazard insurance in
excess of the replacement value of the improvements on the Real Property.
Policies shall be written in form, amounts, coverages and basis reasonably
acceptable to Lender and issued by a company or companies reasonably acceptable
to Lender. Trustor, upon request of Xxxxxx, will deliver to Lender from time to
time the policies or certificates of insurance in form satisfactory to Lender,
including stipulations that coverages will not be canceled or diminished without
at least thirty (30) days' prior written notice to Lender. Each insurance policy
also shall include an endorsement providing that coverage in favor of Lender
will not be impaired in any way by any act, omission or default of Trustor or
any other person. Should the Real Property at any time become located in an area
designated by the Director of the Federal Emergency Management Agency as a
special flood hazard area, Trustor agrees to obtain and maintain Federal Flood
Insurance for the full unpaid principal balance of the loan, up to the maximum
policy limits set under the National Flood Insurance Program, or as otherwise
required by Lender, and to maintain such insurance for the term of the loan.
APPLICATION OF PROCEEDS. Trustor shall promptly notify Lender of any loss or
damage to the Property. Lender may make proof of loss if Trustor fails to do so
within fifteen (15) days of the casualty. If in Xxxxxx's sole judgment Xxxxxx's
security interest in the Property has been impaired, Lender may, at its
election, receive and retain the proceeds of any insurance and apply the
proceeds to the reduction of the Indebtedness, payment of any lien affecting the
Property, or the restoration and repair of the Property. If the proceeds are to
be applied to restoration and repair, Trustor shall repair or replace the
damaged or destroyed Improvements in a manner satisfactory to Lender. Lender
shall, upon satisfactory proof of such expenditure, pay or reimburse Trustor
from the proceeds for the reasonable cost of repair or restoration if Trustor is
not in default under this Deed of Trust. Any proceeds which have not been
disbursed within 180 days after their receipt and which Xxxxxx has not committed
to the repair or restoration of the Property shall be used first to pay any
amount owing to Lender under this Deed of Trust, then to pay accrued interest,
and the remainder, if any, shall be applied to the principal balance of the
Indebtedness. If Xxxxxx holds any proceeds after payment in full of the
Indebtedness, such proceeds shall be paid to Trustor as Trustor's interests may
appear.
UNEXPIRED INSURANCE AT SALE. Any unexpired insurance shall inure to the benefit
of, and pass to, the purchaser of the Property covered by this Deed of Trust at
any trustee's sale or other sale held under the provisions of this Deed of
Trust, or at any foreclosure sale of such Property.
TRUSTOR'S REPORT ON INSURANCE. Upon request of Xxxxxx, however not more than
once a year, Trustor shall furnish to Lender a report on each existing policy of
insurance showing: (a) the name of the insurer; (b) the risks insured; (c) the
amount of the policy; (d) the property insured, the then current replacement
value of such property, and the manner of determining that value; and (e) the
expiration date of the policy. Trustor shall, upon request of Xxxxxx, have an
independent appraiser satisfactory to Lender determine the cash value
replacement cost of the Property.
EXPENDITURES BY XXXXXX. If Trustor fails to comply with any provision of this
Deed of Trust, or if any action or proceeding is commenced that would materially
affect Xxxxxx's interests in the Property, Lender on Trustor's behalf may, but
shall not be required to, take any action that Lender deems appropriate. Any
amount that Xxxxxx expends in so doing will bear interest at the rate provided
for in the Promissory Note from the date incurred or paid by Lender to the date
of repayment by Trustor. All such expenses, at Xxxxxx's option, will (a) be
payable on demand, (b) be added to the balance due under the Promissory Note and
be apportioned among and be payable with any installment payments to become due
under the Promissory Note. This Deed of Trust also will secure payment of these
amounts. The rights provided for in this paragraph shall be in addition to any
other rights or any remedies to which Lender may be entitled on account of the
default. Any such action by Xxxxxx shall not be construed as curing the default
so as to bar Lender from any remedy that it otherwise would have had.
WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of
the Property are a part of this Deed of Trust.
TITLE. Trustor warrants that: (a) Trustor holds good and marketable title of
record of an undivided one hundred (100%) percent interest to the Property in
fee simple, free and clear of all liens and encumbrances other than those set
forth in the Real Property description or in any title insurance policy or
final title opinion issued in favor of, and accepted by, Lender in connection
with this Deed of Trust, and (b) Trustor has the full right, power, and
authority to execute and deliver this Deed of Trust to Lender.
DEFENSE OF TITLE. Subject to the exception in the paragraph above, Trustor
warrants and will forever defend the title to the Property against the lawful
claims of all persons. In the event any action or proceeding is commenced that
questions Trustor's title or the interest of Trustee or Lender under this Deed
of Trust, Trustor shall defend the action at Trustor's expense. Trustor may be
the nominal party in such proceeding, but Xxxxxx shall be entitled to
participate in the proceeding and to be represented in the proceeding by counsel
of Xxxxxx's own choice, and Trustor will deliver, or cause to be delivered, to
Lender such instruments as Lender may request from time to time to permit such
participation.
COMPLIANCE WITH LAWS. Trustor, warrants that the Property and Trustor's use of
the Property complies with all existing applicable laws, ordinances, and
regulations of governmental authorities, including without limitation all
applicable environmental laws, ordinances, and regulations, unless otherwise
specifically excepted in the environmental agreement executed by Trustor and
Lender relating to the Property.
CONDEMNATION. The following provisions relating to eminent domain and inverse
condemnation proceedings are a part of this Deed of Trust,
APPLICATION OF NET PROCEEDS. If any award is made or settlement entered into in
any condemnation proceedings affecting all or any part of the Property or by any
proceeding or purchase in lieu of condemnation, Lender may at its election, and
to the extent permitted by law, require that all or any portion of the award or
settlement be applied to the Indebtedness and to the repayment of all reasonable
costs, expenses, and attorneys' fees incurred by Trustee or Lender in connection
with the condemnation proceedings.
PROCEEDINGS. If any eminent domain or inverse condemnation proceeding is
commenced affecting the Property, Trustor shall promptly notify Lender in
writing, and Trustor shall promptly take such steps as may be necessary to
pursue or defend the action and obtain the award. Trustor may be the nominal
party in any such proceeding, but Lender shall be entitled, at its election, to
participate in the proceeding and to be represented in the proceeding by counsel
of its own choice, and Trustor will deliver or cause to be delivered to Lender
such instruments as may be requested by it from time to time to permit such
participation.
IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES.
The following provisions relating to governmental taxes, fees and charges are a
part of this Deed of Trust:
CURRENT TAXES, FEES AND CHARGES. Upon request by Xxxxxx, Trustor shall execute
such documents in addition to this Deed of Trust and take whatever other action
is requested by Xxxxxx to perfect and continue Xxxxxx's lien on the Real
Property. Trustor shall reimburse Lender for all taxes, as described below,
together with all expenses incurred in recording, perfecting or continuing this
Deed of Trust, including without limitation all taxes, fees, documentary stamps,
and other charges for recording or registering this Deed of Trust.
TAXES. The following shall constitute taxes to which this section applies: (a)
a specific tax upon this type of Deed of Trust or upon all or any part of the
Indebtedness secured by this Deed of Trust; (b) a specific tax on Trustor which
Trustor is authorized or required to deduct from payments on the Indebtedness
secured by this type of Deed of Trust; (c) a tax on this type of Deed of Trust
chargeable against the Lender or the holder of the Promissory Note; and (d) a
specific tax on all or any portion of the Indebtedness or on payments of
principal and interest made by Trustor.
SUBSEQUENT TAXES. If any tax to which this section applies is enacted
subsequent to the date of this Deed of Trust, this event shall have the same
effect as an Event of Default (as defined below), and Lender may exercise any or
all of its available remedies for an Event of Default as provided below unless
Trustor either (a) pays the tax before it becomes delinquent, or (b) contests
the tax as provided above in the Taxes and Liens section and deposits with
Lender cash or a sufficient corporate surety bond or other security satisfactory
to Lender.
SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to
this Deed of Trust as a security agreement are a part of this Deed of Trust.
SECURITY AGREEMENT. This instrument shall constitute a security agreement to
the extent any of the Property constitutes fixtures or other Personal Property,
and Lender shall have all of the rights of a secured party under the Uniform
Commercial Code as amended from time to time.
SECURITY INTEREST. Upon request by Xxxxxx, Trustor shall execute financing
statements and take whatever other action is requested by Xxxxxx to perfect and
continue Xxxxxx's security interest in the Rents and Personal Property. Trustor
shall reimburse Lender for all expenses incurred in perfecting or continuing
this security interest. Upon default, Trustor shall assemble the Personal
Property in a manner and at a place reasonably convenient to Trustor and Lender
and make it available to Lender within three (3) days after receipt of written
demand from Lender.
ADDRESSES. The mailing addresses of Trustor (debtor) and Xxxxxx (secured
party), from which information concerning the security interest granted by this
Deed of Trust may be obtained (each as required by the Uniform Commercial Code),
are as stated on the first page of this Deed of Trust.
FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions relating to
further assurances and attorney-in-fact are a part of this Deed of Trust.
FURTHER ASSURANCES. At any time, and from time to time, upon request of Xxxxxx,
Trustor will make, execute and deliver, or will cause to be made, executed or
delivered, to Lender or to Xxxxxx's designee, and when requested by Xxxxxx,
cause to be filed, recorded, refiled, or re-recorded, as the case may be, at
such times and in such offices and places as Lender may deem appropriate, any
and all such mortgages, deeds of trust, security deeds, security agreements,
financing statements, continuation statements, instruments of further assurance,
certificates, and other documents as may, in the sole opinion of Lender, be
necessary or desirable in order to effectuate, complete, perfect, continue, or
preserve (a) the obligations of Trustor under the Promissory Note, this Deed of
Trust, and the Related Documents, and (b) the liens and security interests
created by this Deed of Trust as first and prior liens on the Property, whether
now owned or hereafter acquired by Trustor. Unless prohibited by law or agreed
to the contrary by Xxxxxx in writing, Trustor shall reimburse Lender for all
costs and expenses incurred in connection with the matters referred to in this
paragraph.
ATTORNEY-IN-FACT. If Trustor fails to do any of the things referred to in the
preceding paragraph, Lender may do so for and in the name of Trustor and at
Trustor's expense. For such purposes, Trustor hereby irrevocably appoints Xxxxxx
as Trustor's attorney-in-fact for the purpose of making, executing, delivering,
filing, recording, and doing all other things as may be necessary or desirable,
in Xxxxxx's sole opinion, to accomplish the matters referred to in the preceding
paragraph.
FULL PERFORMANCE. If Trustor pays all the indebtedness when due, and otherwise
performs all the obligations imposed upon Trustor under this Deed of Trust,
Xxxxxx shall execute and deliver to Trustee a request for full reconveyance and
shall execute and deliver to Trustor suitable statements of termination, of any
financing statement on file evidencing Xxxxxx's security interest in the Rents
and the Personal Property. Xxxxxx may charge Trustor a reasonable reconveyance
fee at the time of reconveyance.
DEFAULT. Each of the following, at the option of Lender, shall constitute an
event of default ("Event of Default") under this Deed of Trust:
DEFAULT ON INDEBTEDNESS. Failure of Trustor to make any material (material over
$5,000), uncured (uncured after five days written notice to Trustor) payment
when due on the Indebtedness.
DEFAULT ON OTHER PAYMENTS. Failure of Trustor within the time required by this
Deed of Trust to make any payment for taxes or insurance, or any other payment
necessary to prevent filing of or to effect discharge of any lien.
ENVIRONMENTAL DEFAULT. Failure of any party to comply with or perform when due
any term, obligation, covenant or condition contained in any environmental
agreement executed in connection with the Property.
COMPLIANCE DEFAULT. Failure of Trustor to comply with any other term,
obligation, covenant or condition contained in this Deed of Trust, the
Promissory Note or in any of the Related Documents.
FALSE STATEMENTS. Any warranty, representation or statement made or furnished
to Lender by or on behalf of Trustor under this Deed of Trust, the Promissory
Note or the Related Documents is false or misleading in any material respect,
either now or at the time made or furnished.
DEFECTIVE COLLATERALIZATION. This Deed of Trust or any of the Related Documents
ceases to be in full force and effect (including failure of any collateral
documents to create a valid and perfected security interest or lien) at any time
and for any reason.
INSOLVENCY. The insolvency of a Trustor, the appointment of a receiver for any
part of Trustor's property, any assignment for the benefit of creditors, any
type of creditor workout, or the commencement of any proceeding under any
bankruptcy or insolvency laws by or against Trustor.
FORECLOSURE, FORFEITURE, ETC. Commencement of foreclosure or forfeiture
proceedings, whether by judicial proceeding, self-help, repossession or any
other method, by any creditor of Trustor or by any governmental agency against
any of the Property. However, this subsection shall not apply in the event of a
good faith dispute by Trustor as to the validity or reasonableness of the claim
which is the basis of the foreclosure or forfeiture proceeding, provided that
Trustor gives Lender written notice of such claim and furnishes reserves or a
surety bond for the claim satisfactory to Lender.
BREACH OF OTHER AGREEMENT. Any breach by Trustor under the terms of any other
agreement between Trustor and Lender that is not remedied within any grace
period provided therein, including without limitation any agreement concerning
any indebtedness or other obligation of Trustor to Lender, whether existing now
or later.
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with respect to
any Guarantor of any of the Indebtedness or any Guarantor dies or becomes
incompetent, or revokes or disputes the validity of, or liability under, any
Guaranty of the Indebtedness.
ADVERSE CHANGE. A material adverse change occurs in Trustor's financial
condition, or Xxxxxx believes the prospect of payment or performance of the
Indebtedness is impaired.
RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of any Event of Default and
at any time thereafter, Trustee or Lender, at its option, may exercise any one
or more of the following rights and remedies, in addition to any other rights or
remedies provided by law:
FORECLOSURE BY SALE. Upon an Event of Default under this Deed of Trust,
Beneficiary may declare the entire Indebtedness secured by this Deed of Trust
immediately due and payable by delivery to Trustee of written declaration of
default and demand for sale and of written notice of default and of election to
cause to be sold the Property, which notice Trustee shall cause to be filed for
record. Beneficiary also shall deposit with Trustee this Deed of Trust, the
Promissory Note, and all documents evidencing expenditures secured hereby. After
the lapse of such time as may then be required by law following the recordation
of the notice of default, and notice of sale having been given as then required
by law, Trustee, without demand on Trustor, shall sell the Property at the time
and place fixed by it in the notice of sale, either as a whole or in separate
parcels, and in such order as it may determine, at public auction to the highest
bidder for cash in lawful money of the United States, payable at time of sale.
Trustee may 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 in accordance with applicable law. Trustee shall deliver to such
purchaser its deed conveying the Property so sold, but without any covenant or
warranty, express or implied. The recitals in such deed of any matters or facts
shall be conclusive proof of the truthfulness thereof. Any person, including
Trustor, Trustee or Beneficiary may purchase at such sale. After deducting all
costs, fees and expenses of Trustee and of this Trust, including cost of
evidence of title in connection with sale, Trustee shall apply the proceeds of
sale to payment of: all sums expended under the terms hereof, not then repaid,
with accrued interest at the amount allowed by law in effect at the date hereof;
all other sums then secured hereby; and the remainder, if any, to the person or
persons legally entitled thereto.
JUDICIAL FORECLOSURE. With respect to all or any part of the Real Property,
Lender shall have the right in lieu of foreclosure by power of sale to foreclose
by judicial foreclosure in accordance with and to the full extent provided by
California law.
UCC REMEDIES. With respect to all or any part of the Personal Property, Lender
shall have all the rights and remedies of a secured party under the Uniform
Commercial Code, including without limitation the right to recover any
deficiency in the manner and to the full extent provided by California law.
COLLECT RENTS. Lender shall have the right, without notice to Trustor, to take
possession of and manage the Property and collect the Rents, including amounts
past due and unpaid, and apply the net proceeds, over and above Xxxxxx's costs,
against the Indebtedness. In furtherance of this right, Lender may require any
tenant or other user of the Property to make payments of rent or use fees
directly to Lender. If the Rents are collected by Xxxxxx, then Trustor
irrevocably designates Lender as Trustor's attorney-in-fact to endorse
instruments received in payment thereof in the name of Trustor and, to negotiate
the same and collect the proceeds. Payments by tenants or other users to Lender
in response to Xxxxxx's demand shall satisfy the obligations for which the
payments are made, whether or not any proper grounds for the demand existed.
Lender may exercise its rights under this subparagraph either in person, by
agent, or through a receiver.
APPOINT RECEIVER. Lender shall have the right to have a receiver appointed to
take possession of all or any part of the Property, with the power to protect
and preserve the Property, to operate the Property preceding foreclosure or
sale, and to collect the Rents from the Property and apply the proceeds, over
and above the cost of the receivership, against the Indebtedness. The receiver
may serve without bond if permitted by law. Xxxxxx's right to the appointment of
a receiver shall exist whether or not the apparent value of the Property exceeds
the Indebtedness by a substantial amount. Employment by Xxxxxx shall not
disqualify a person from serving as a receiver.
TENANCY AT SUFFERANCE. If Trustor remains in possession of the Property after
the Property is sold as provided above or Lender otherwise becomes entitled to
possession of the Property upon default of Trustor, Trustor shall become a
tenant at sufferance of Lender or the purchaser of the Property and shall, at
Lender's option, either (a) pay a reasonable rental for the use of the Property,
or (b) vacate the Property immediately upon the demand of Lender.
OTHER REMEDIES. Trustee or Lender shall have any other right or remedy provided
in this Deed of Trust or the Promissory Note or by law.
NOTICE OF SALE. Lender shall give Trustor reasonable notice of the time and
place of any public sale of the Personal Property or of the time after which any
private sale or other intended disposition of the Personal Property is to be
made. Reasonable notice shall mean notice given at least five (5) days before
the time of the sale or disposition. Any sale of Personal Property may be made
in conjunction with any sale of the Real Property.
SALE OF THE PROPERTY. To the extent permitted by applicable law, Trustor hereby
waives any and all rights to have the Property marshalled. In exercising its
rights and remedies, the Trustee or Lender shall be free to sell all or any part
of the
Property together or separately, in one sale or by separate sales. Lender shall
be entitled to bid at any public sale on all or any portion of the Property.
WAIVER; ELECTION OF REMEDIES. A waiver by any party of a breach of a provision
of this Deed of Trust shall not constitute a waiver of or prejudice the party's
rights otherwise to demand strict compliance with that provision or any other
provision. Election by Xxxxxx to pursue any remedy provided in this Deed of
Trust, the Promissory Note, in any Related Document, or provided by law shall
not exclude pursuit of any other remedy, and an election to make expenditures or
to take action to perform an obligation of Trustor under this Deed of Trust
after failure of Trustor to perform shall not affect Xxxxxx's right to declare a
default and to exercise any of its remedies. By accepting payment of any sum
secured hereby after its due date, Beneficiary does not waive its right(s)
either to require prompt payment when due of all other sums so secured or to
declare a default for failure to pay.
ATTORNEYS' FEES; EXPENSES. If Lender institutes any suit or action to enforce
any of the terms of this Deed of Trust, Lender shall be entitled to recover such
sum as the court may adjudge reasonable as attorneys' fees at trial and on any
appeal. Whether or not any court action is involved, all reasonable expenses
incurred by Xxxxxx which in Xxxxxx's opinion are necessary at any time for the
protection of its interest or the enforcement of its rights shall become a part
of the Indebtedness payable on demand and shall bear interest at the Promissory
Note rate from the date of expenditure until repaid. Expenses covered by this
paragraph include, without limitation, however subject to any limits under
applicable law, Xxxxxx's attorneys' fees whether or not there is a lawsuit,
including attorneys' fees for bankruptcy proceedings (including efforts to
modify or vacate any automatic stay or injunction), appeals and any anticipated
post-judgment collection services, the cost of searching records, obtaining
title reports (including foreclosure reports), surveyors' reports, appraisal
fees, title insurance, and fees for the Trustee, to the extent permitted by
applicable law. Trustor also will pay any court costs, in addition to all other
sums provided by law.
RIGHTS OF TRUSTEE. Trustee shall have all of the rights and duties of Lender as
set forth in this section.
POWERS AND OBLIGATIONS OF TRUSTEE. The following provisions relating to the
powers and obligations of Trustee are part of this Deed of Trust.
POWERS OF TRUSTEE. In addition to all powers of Trustee arising as a matter of
law, Trustee shall have the power to take the following actions with respect to
the Property upon the written request of Xxxxxx and Trustor: (a) join in
preparing and filing a map or plat of the Real Property, including the
dedication of streets or
other rights to the public; (b) join in granting any easement or creating any
restriction on the Real Property; and (c) join in any subordination or other
agreement affecting this Deed of Trust or the interest of Lender under this Deed
of Trust.
OBLIGATIONS TO NOTIFY. Trustee shall not be obligated to notify any other party
of a pending sale under any other trust deed or lien, or of any action or
proceeding in which Trustor, Lender, or Trustee shall be a party, unless the
action or proceeding is brought by Trustee.
TRUSTEE. Trustee shall meet all qualifications required for Trustee under
applicable law. In addition to the rights and remedies set forth above, with
respect to all or any part of the Property, the Trustee shall have the right to
foreclose by notice and sale, and Lender shall have the right to foreclose by
judicial foreclosure, in either case in accordance with and to the full extent
provided by applicable law.
SUCCESSOR TRUSTEE. Xxxxxx, at Xxxxxx's option, may from time to time appoint a
successor Trustee to any Trustee appointed hereunder by an instrument executed
and acknowledged by Xxxxxx and recorded in the office of the recorder of Los
Angeles County, California. The instrument shall contain, in addition to all
other matters required by state law, the names of the original Lender, Trustee,
and Trustor, the book and page where this Deed of Trust is recorded, and the
name and address of the successor trustee, and the instrument shall be executed
and acknowledged by Xxxxxx or its successors in interest. The successor trustee,
without conveyance of the Property, shall succeed to all the title, power, and
duties conferred upon the Trustee in this Deed of Trust and by applicable law.
This procedure for substitution of trustee shall govern to the exclusion of all
other provisions for substitution.
NOTICES TO TRUSTOR AND OTHER PARTIES. Any notice under this Deed of Trust
shall be in writing, may be sent by telefacsimile (unless otherwise required by
law), and shall be effective when actually delivered, or when deposited with a
nationally recognized overnight courier, or, if mailed, shall be deemed
effective when deposited in the United States mail first class, certified or
registered mail, postage prepaid, directed to the addresses shown near the
beginning of this Deed of Trust. Any party may change its address for notices
under this Deed of Trust by giving formal written notice to the other parties,
specifying that the purpose of the notice is to change the party's address. All
copies of notices of foreclosure from the holder of any lien which has priority
over this Deed of Trust shall be sent to Xxxxxx's address, as shown near the
beginning of this Deed of Trust. For notice purposes, Trustor agrees to keep
Xxxxxx and Trustee informed at all times of Trustor's current address. Each
Trustor requests that copies of any notices of default and sale be directed to
Trustor's address shown near the beginning of this Deed of Trust.
STATEMENT OF OBLIGATION. Lender may collect a fee, in an amount not to exceed
the statutory maximum, for furnishing the statement of obligation as provided by
Section 2943 of the Civil Code of California.
ADDITIONAL PROPERTY DAMAGE INSURANCE. Trustor shall name Beneficiary as loss
payee pertaining to any type of hazard Insurance, including but not limited to
earthquake insurance pertaining to the property. In the event of any damage or
loss pertaining to the property, the proceeds from such insurance shall be paid
directly to Beneficiary. Beneficiary shall establish an account for such
proceeds over which Beneficiary and Trustor shall have joint control (the
"Account"). The proceeds in the Account may be used, at the option of Trustor,
as follows:
(a) If there are sufficient funds in the Account to repair or restore the
property, the funds may be used for that purpose, In the event there are no
sufficient funds in the Account to repair or restore the property, Trustor shall
immediately deposit to the Account sufficient funds to fully repair or restore
the property. All disbursements from the Account shall be subject to inspections
by Beneficiary. Any surplus of funds in the Account shall be returned to
Trustor upon full restoration and/or repair of the Property as determined by
Beneficiary; or
(b) The proceeds of such insurance shall be applied to reduction of the
indebtedness of
Trustor to Beneficiary.
PROHIBITION OF LEASE. Trustor shall not enter into any Lease, license, occupancy
or other agreement permitting the temporary use, occupancy or possession of the
Real Property without Xxxxxx's prior written consent, which consent shall not be
unreasonably withheld.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Deed of Trust:
AMENDMENTS. This Deed of Trust, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to the
matters set forth in this Deed of Trust. No alteration of or amendment to this
Deed of Trust shall be effective unless given in writing and signed by the party
or parties sought to be charged or bound by the alteration or amendment.
ANNUAL REPORTS. If the Property is used for purposes other than Trustor's
residence, Trustor shall furnish to Lender, upon request, a certified statement
of net operating income received from the Property during Trustor's previous
fiscal year in such form and detail as Lender shall require. "Net operating
income" shall mean all cash receipts from the Property less all cash
expenditures made in connection with the operation of the Property.
ACCEPTANCE BY TRUSTEE. Trustee accepts this Deed of Trust when this Deed of
Trust, xxxx executed and acknowledged, is made a public record as provided by
law.
APPLICABLE LAW. This Deed of Trust has been delivered to Lender and accepted by
Xxxxxx in the State of California. This Deed of Trust shall be governed by and
construed in accordance with the laws of the State of California.
CAPTION HEADINGS. Caption headings in this Deed of Trust are for convenience
purposes only and are not to be used to interpret or define the provisions of
this Deed of Trust.
MERGER. There shall be no merger of the interest or estate created by this Deed
of Trust with any other interest or estate in the Property at any time held by
or for the benefit of Lender in any capacity, without the written consent of
Xxxxxx.
MULTIPLE PARTIES. All obligations of Trustor under this Deed of Trust shall be
joint and several, and all references to Trustor shall mean each and every
Trustor. This means that each of the persons signing below is responsible for
all obligations in this Deed of Trust.
SEVERABILITY AND INTERPRETATION. If a court of competent jurisdiction finds any
provision of this Deed of Trust to be invalid or unenforceable as to any person
or circumstance, such finding shall not render that provision invalid or
unenforceable as to any other persons or circumstances. If feasible, any such
offending provision shall be deemed to be modified to be within the limits of
enforceability or validity; however, if the offending provision cannot be so
modified, it shall be stricken and all other provisions of this Deed of Trust in
all other respects shall remain valid and enforceable. The terms of this
document shall not be construed against the party to have drafted it.
SUCCESSORS AND ASSIGNS. Subject to the limitations stated in this Deed of Trust
on transfer of Trustor's interest, this Deed of Trust shall be binding upon and
inure to the benefit of the parties, their successors and assigns. If ownership
of the Property becomes vested in a person other than Trustor, Lender, without
notice to Trustor, may deal with Trustor's successors with reference to this
Deed of Trust and the Indebtedness by way of forbearance or extension without
releasing Trustor from the obligations of this Deed of Trust or liability under
the Indebtedness.
TIME IS OF THE ESSENCE AND ATTORNEY REVIEW. Time is of the essence in the
performance of this Deed of Trust. Each party acknowledges and agrees that it
has had adequate opportunity to review this document with legal counsel of their
choosing.
WAIVERS AND CONSENTS. Lender shall not be deemed to have waived any rights under
this Deed of Trust (or under the Related Documents) unless such waiver is in
writing and signed by Xxxxxx. No delay or omission on the part of Lender in
exercising any right shall operate as a waiver of such right or any other right.
A waiver by any party of a provision of this Deed of Trust shall not constitute
a waiver of or prejudice the party's right otherwise to demand strict compliance
with that provision or any other provision. No prior waiver by Xxxxxx, nor any
course of dealing between Lender and Trustor, shall constitute a waiver of any
of Lender's rights or any of Trustor's obligations as to any future
transactions. Whenever consent by Xxxxxx is required in this Deed of Trust, the
granting of such consent by Lender in any instance shall not constitute
continuing consent to subsequent instances where such consent is required.
EACH TRUSTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS DEED OF TRUST,
AND EACH TRUSTOR AGREES TO ITS TERMS.
TRUSTOR:
By: ____________________ By _______________________
Xxx X. Xxxxxx Xxxxxxx Xxxxxx
ACKNOWLEDGMENT
State of )
)SS.
County of )
On before me,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose names(s) Xxxx 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 signatures(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.
Signature____________________________________
(This area for official seal)
ATTENTION NOTARY- Although the information requested below is OPTIONAL, it could
prevent fraudulent attachment of this certificate to another documents.
THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW:
Title or Type of Document
Number of Pages ______Date of Document
Signer(s) Other Than Named Above
ACKNOWLEDGMENT
State of )
)SS.
County of )
On before me,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose names(s) Xxxx 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 signatures(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WlTNESS my hand and official seal.
Signature____________________________________
(This area for official seal)
ATTENTION NOTARY- Although the information requested below is OPTIONAL, it could
prevent fraudulent attachment of this certificate to another documents.
THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW:
Title or Type of Document
Number of Pages Date of Document
Signer(s) Other Than Named Above
