6.2 NOTE AND MORTGAGE DATED APRIL 12, 1996 BY AND BETWEEN THE COMPANY
AND BAR K, INC. IN CONNECTION WITH THE ACQUISITION OF THE COMPANY'S
WINERY
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NOTE SECURED BY DEED OF TRUST
(This Note Contains An Acceleration Clause)
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Straight Note-Interest Only Installments
San Leandro, California
$1,680,000.00 Date: April 12, 1996
In installments as herein states, for value received, the undersigned,
promise to pay to BAR K, INC. a California corporation, or order ("Lender"),
at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxxxxx, XX 00000, or other place that may be
designated by Lender through written notice to the undersigned, the sum of:
$1,680,000.00 (ONE MILLION SIX HUNDRED EIGHTY THOUSAND DOLLARS)
with interest from the date of funding (which is April 15, 1996) on the
unpaid principal balance outstanding from time to time at the rate of
interest stated below, payable in interest only monthly installments in the
amount stated below, due on the 15th day of each month, beginning on May 15,
1996 and continuing monthly thereafter until maturity, April 15, 2002, at
which time all sums of principal and interest then remaining unpaid shall be
due and payable in full.
The rate of interest for the first year of the term of this promissory note
shall be NINE per cent (9%) per annum;
The rate of interest for the second year of the term of this promissory note
shall be TEN per cent (10%) per annum;
The rate of interest for the third year of the term of this promissory note
shall be ELEVEN per cent (11%) per annum;
The rate of interest for the fourth through sixth years of the term of this
promissory note shall be TWELVE per cent (12%) per annum.
The monthly installments for the first year of the term of this promissory
note shall be $12,600.00 per month (subject to adjustment based upon
adjustments to the principal balance from time to time). The monthly
installments for the second year of the term of this promissory note shall be
$14,000.00 per month (subject to adjustment based upon adjustments to the
principal balance from time to time). The monthly installments for the third
year of the term of this promissory note shall be $15,400.00 per month
(subject to adjustment based upon adjustments to the principal balance from
time to time). The monthly installments for the fourth through sixth years of
the term of this promissory note shall be $16,800.00 per month (subject to
adjustment based upon adjustments to the principal balance from time to
time).
The undersigned shall make a principal payment of at least $200,000.00 on or
before October 15,1996.
Each payment shall be credited first to interest then due and payable and the
remainder on principal and interest shall thereupon cease upon the principal
so credited. Upon default in any payment of any installment, then the balance
of this obligation shall become due immediately at the option of the Lender
hereof. Principal and interest is payable in lawful money of the United
States of America.
PROMISSORY NOTE Page 1 of 3
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NOTE SECURED BY DEED OF TRUST
(This Note Contains An Acceleration Clause)
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If this note is not paid when due, the undersigned promise to pay, in
addition to the principal and interest due under this note, all costs of
collection and any reasonable attorney's fees incurred by the Lender thereof
on account of such collection, whether or not suit is filed hereon. The
undersigned consents to renewals, replacements and extensions of time for
payment hereof before, at, or after maturity; consents to acceptance of
security for this Note and waives demand, protest and any applicable statute
of limitations.
If any installment due hereunder is delinquent more than 10 days, the
undersigned agrees to pay a late charge on each such installment of 10% of
the delinquent payment. All late payment charges are to be paid immediately
upon demand.
In addition, if any balloon payment is delinquent more than 10 days, the
undersigned agrees to pay a late charge equivalent to the maximum late charge
which could be assessed on the largest single regular installment due under
this note. This late charge on the balloon payment is to continue to be
assessed for each subsequent period of time equal to the regular installment
period under this note until the balloon payment and other fees, interest and
charges due under this note are paid in full.
The undersigned and Lender agree that it would be difficult to determine the
actual damages to the Beneficiary or Beneficiaries agent for the return of an
unpaid check provided by undersigned. It is hereby agreed the undersigned
will pay one per cent (1%) or $25.00, whichever is greater. Such amount is in
addition to any late charge or default interest which may be applicable. This
amount is in lieu of any statutory monetary penalty, if any. However, Lender
does not waive any other rights that may be awarded under any statute.
The principal and accrued interest on this loan may be prepaid in whole or in
part at any time without penalty. In the event that the undersigned prepays a
portion of the principal on this note, then the monthly interest installments
due under this note shall also be changed to reflect the new principal
amount.
The Note is secured by a Deed of Trust of even date herewith which
contains the following provision:
In the event of sale, transfer, conveyance or alienation of said
property, or any part thereof, or any interest therein, whether
voluntary or involuntary, Beneficiary shall have the right of
acceleration, at its option, to declare the note secured by this
Deed of Trust, irrespective of the maturity date expressed therein,
and without demand or notice, immediately due and payable. No waiver
of this right shall be effective unless it is in writing. Consent by
Beneficiary to one such transaction shall not constitute waiver of
the right to require such consent in succeeding transactions.
THIS NOTE IS SUBJECT TO SECTION 2966 OF THE CIVIL CODE, WHICH PROVIDES THAT
THE HOLDER OF THIS NOTE SHALL GIVE WRITTEN NOTICE TO THE TRUSTOR, OR HIS
SUCCESSOR IN INTEREST, OF PRESCRIBED INFORMATION AT LEAST 90 AND NOT MORE
THAN 150 DAYS BEFORE ANY BALLOON PAYMENT IS DUE.
PROMISSORY NOTE Page 2 of 3
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NOTE SECURED BY DEED OF TRUST
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ANY INTEREST WHICH BECOMES DUE UNDER THIS NOTE WHICH REMAINS DUE FOR MORE
THAN ONE MONTH SHALL ACQUIRE INTEREST AT THE SAME RATE AND UPON THE SAME
TERMS AS THE PRINCIPAL UNDER THIS NOTE. IF THIS NOTE IS IN DEFAULT FOR MORE
THAN ONE MONTH, THEN THE INTEREST RATE OF THIS NOTE SHALL BE INCREASED TO AN
AMOUNT EQUAL TO THE INTEREST RATE THEN DUE AS STATED ON THE FIRST PAGE OF
THIS NOTE PLUS FIVE PER CENT (5%). ANY PRINCIPAL BALANCE OUTSTANDING PAST THE
DUE DATE OF THIS NOTE SHALL BEAR INTEREST EQUAL TO THE HIGHEST INTEREST RATE
STATED IN THIS NOTE PLUS FIVE PER CENT (5%).
Executed on 17th of April, 1996 by (the "Undersigned").
A.W.G., LTD.,
/S/ Xxxxx Xxxxxxx
--------------------------
By: Xxxxx Xxxxxxx
Its: President
This Note is secured by a Deed of Trust
PROMISSORY NOTE Page 3 of 3
BAR-K INC. 1996 009448
000 Xxxxxxxxx Xxxxxx OFFICIAL RECORDS OF
San Leandro, CA 94577 NAPA COUNTY
AT REQUEST OF:
H. XXXXXXXX XXXXX
04/19/1996 12:01 PM
Fee: $ 35.00 Pgs: 8
TT: $ .00
Loan No: A0060 (This space for recorders use only)
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DEED OF TRUST WITH ABSOLUTE ASSIGNMENT OF RENTS RIDER
(This Deed of Trust contains an Acceleration Clause)
This DEED OF TRUST made April 12, 1996 between:
A W G, LTD., _____________________________ a Nevada corporation
herein call Trustor, whose address is: 0000 XXXXXXX XXXXXX #000,
XXXX, XX 00000
and Bar-K Inc., a California corporation herein called
TRUSTEE, and
BAR-K INC., a California corporation
herein called BENEFICIARY;
WITNESSETH: The Trustor irrevocably GRANTS, TRANSFERS, AND ASSIGNS TO
TRUSTEE, in Trust, with POWER OF SALE, that promptly in the State of
California, in the City of NAPA , County of NAPA described as:
SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF FOR COMPLETE
LEGAL DESCRIPTION. A.P.N.: 000-000-000 AND 000-000-000
Property commonly known as: 0000 XXX XXXXX XXXX, XXXX, XX
Any advances made by beneficiary or other entities to protect their
interest in this Deed of Trust shall earn interest at the rate of
interest on the Note that secures this Deed of Trust and can be
added to the principal balance of said note.
Together with all rights and interest of Trustor to all appurtenances,
easements, community interests and licenses, and to oil, mineral, gas, water,
water certificates, and hydrocarbon rights, leases and overriding royalties
therein, and all of these, whether appurtenant, riparian or appropriative.
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FOR THE PURPOSE OF SECURING:
(1) Performance of each agreement of Trustor incorporated be reference or
contained herein;
(2) Payment of the indebtedness evidenced by ONE PROMISSORY NOTE of even date
herewith and any amounts that may become due thereunder, and all extensions,
modifications, or renewals thereof, in the principal sum of $ 1,680,000.00,
executed by Trustor and payable to Beneficiary or order;
(3) Payment of all sums of money, with interest thereon, which may be paid
out or advanced by or may otherwise be due to Trustee or Beneficiary under
any provision of this Deed of Trust.
In the event of sale, transfer, conveyance or alienation of said property, or
any part thereof, or any interest therein, whether voluntary or involuntary,
Beneficiary shall have the right of acceleration, at it's option, to declare
the note secured by this Deed of Trust, irrespective of the maturity date
expressed therein, and without demand or notice, immediately due and payable.
No waiver of this right shall be effective unless it is in writing. Consent
by Beneficiary to one such transaction shall not constitute waiver of the
right to require such consent in succeeding transactions.
To protect the security of this Deed of Trust, and with respect to the
property described above, Trustor expressly makes each of all of the
agreements, and adopts and agrees to perform and be bound by each and all of
the terms and provisions set forth as follows:
(1) To keep said property in good condition and repair; not to remove or
demolish any building thereon; to complete or restore promptly and in good
and workmanlike manner any building which may be constructed, damaged or
destroyed thereon; to keep al buildings, structures and other improvements
now or hereafter situated on the above described property at all times
entirely free of dry rot, fungus, rust, decay, termites, and any other
destructive insects or elements to pay when due all claims for labor
performed and materials furnished therefore to comply with all laws affecting
said property or requiring any alterations or improvements to be made
thereon; not to commit waste or permit waste thereof, not to commit, suffer
or permit any act upon said property in violation of law; to conju, irrigate,
fertilize, fumigate, prune and do all other acts which from the character or
use of said property may be reasonably necessary, the specific enumerations
herein not excluding the general. Either Beneficiary or Trustee, or both, at
any time during the continuation of the Deed of Trust, may enter upon and
inspect said property provided such entry is reasonable as to time and
manner.
(2) To provide, maintain and deliver to Beneficiary fire insurance
satisfactory and with loss payable to Beneficiary. The amount collected under
any fire or other insurance policy may be applied by Beneficiary upon any
indebtedness secured hereby and in such order as Beneficiary may determine,
or at option of Beneficiary the entire amount so collected or any part
thereof may be released to Trustor. Such application or release shall not
cure or waive any Default or Notice of Default hereunder or invalidate any
act done pursuant to such notice.
(3) To appear in and defend any action or proceeding purporting to affect the
security hereof or the rights or powers of Beneficiary, or Trustee: and to
pay all costs and expenses, including cost of evidence of title and
attorney's fees in a reasonable sum, in any such action or proceeding
instituted by Beneficiary or Trustee to protect or enforce the security of
this Deed of Trust or the obligations secured hereby.
(4) To pay at least ten days before delinquency all taxes and assessments
affecting said property, including assessments on appurtenant water stock;
when due, all encumbrances, charges and liens, with interest, on said
property or any part appear to be prior or superior hereto; all costs, fees
and expenses of this Trust.
(5) Should Trustor fall to make any payments or to do any acts as herein
provided, then Beneficiary or Trustee, but without obligation to do so 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 does necessary to protect the security thereof.
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 of Trustor, pay,
purchase, contest or compromise any encumbrance, charge or lien which in the
judgment of either appears to be prior or superior thereto; and in exercising
any such powers, pay necessary expenses, employ counsel and pay his
reasonable fees.
(6) To pay immediately and without demand all sums so expended by Beneficiary
or Trustee, with incorrect from the date of expenditure at the rate
prescribed in the Note. Should any additional funds be advanced on any not
secured by a Trust Deed now of record, or should any charge be made in the
time or manner of paying such note, or should any other action be taken by
the undersigned with respect to such note whereby the security herein
provided for shall be impaired in any manner whatsoever, then the Note
secured hereby shall, at the option of the lender, immediately becomes due
and payable.
(7) Any award of damages or sums received in settlement in connection with
any condemnation for public use of or any injury to said property or any part
thereof from any cause, is hereby assigned and shall be paid to Beneficiary
who may apply or release such moneys received by him in the same manner and
with the same effect as above provided for disposition of proceeds of fire or
other insurance.
(8) If the security for this Deed of Trust is a leasehold estate, Trustor
agrees not to amend, change or modify his leasehold interest, or may of the
terms thereof or agree to do it, without the written consent of the
Beneficiary being first obtained. In the event of a violation of this
provision, Beneficiary shall have the right, at its option, to declare all
sums secured hereby immediately due and payable.
(9) By accepting payment of any sum secured hereby after its due date,
Beneficiary does not waive his right either to require prompt payment when
due of all sums so secured or to declare default for failure to so pay.
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Notwithstanding any provision herein or in the Note secured hereby to the
contrary, Beneficiary or Trustee shall have the absolute right to direct
manner, order and amount in which payments shall be applied upon or allocated
among the various items composing Trustor's indebtedness secured hereby.
In the event of default in the payment of any of the moneys to be paid under
the terms of the Note secured hereby or in the performance of any of the
covenants and obligations of this Deed of Trust, then any funds in the
possession of the Beneficiary, or other credits to which the Trustor would
otherwise be entitled may, at the option of the Beneficiary, be applied to
the payment of any obligation secured hereby in such order as the Beneficiary
may, in its sole discretion determine.
(10) At any time or from time to time, without liability therefore and
without notice upon written request of Beneficiary and presentation of this
Deed and said Note for endorsement, and without affecting the personal
liability of any person for payment of the indebtedness secured hereby,
Trustee may reconvey any part of said property; consent 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
thereof. Trustee may, but shall be under no obligation or duty to, appear in
or defend any action or proceeding purporting to affect said property or the
title thereto, or purporting to affect the security hereof or the rights or
powers of Beneficiary or Trustee.
(11) Upon written request of Beneficiary stating that all sums secured hereby
have been paid, and upon surrender of this Deed and said Note to Trustee 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 such reconveyance may be described as
the "person or persons legally entitled thereto". The Trustee may destroy
said Note, this Deed of Trust (and any other documents related thereto) upon
the first to occur of the following: 5 years after issuance of a full
reconveyance; or, recordation or the Note and Deed of Trust in a form or
medium which permits their reproduction for 5 years following issuance of a
full reconveyance.
(12) The Deed applies to, inures to the benefit of, and binds all parties
hereto, their heirs, legatees, devises, administrators, executors, successors
and assigns. The term Beneficiary shall mean, the owner or holder, including
pledges, of the Note secured hereby, whether or not named as Beneficiary
herein. In this Deed, whenever the context so requires, the masculine gender
includes the feminine and/or neuter, and the singular number includes the
plural. As used herein, "fixtures" includes but is not limited to carpeting,
built-in appliances, draperies and drapery rods, shrubs, water tanks,
plumbing, machinery, air conditioners, ducts, and the like.
(13) Trustee accepts this Trust when this Deed, duly executed and
acknowledged, is made a public record as provided by law. Trustee is not
obligated to notify any party hereto of pending sale under any other Deed of
Trust or of any action or proceeding in which Trustor, Beneficiary or Trustee
shall be a party unless brought by Trustee.
(14) Trustor agrees to pay Beneficiary or his agent, the maximum legal charge
for a statement regarding the Trust Deed obligation herein. A statement
includes but is not limited to a Beneficiary Statement, Credit Statement and
any statement evidencing the debt.
(15) Acceptance by Beneficiary of a partial payment on account, after Notice
of Default has been recorded, shall not be construed as curing the default
nor as a waiver of past or future delinquencies of Trust Deed payment.
(16) Upon default by Trustor in payment of any indebtedness secured hereby or
in performances of any agreement hereunder, Beneficiary may declare all sums
secured hereby 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 said property, which notice Trustee shall
cause to be filed for record. Trustee shall be entitled to rely upon the
correctness of such notice. Beneficiary also shall deposit with Trustee this
Deed, said Note and all documents evidencing expenditures secured hereby.
After the lapse of such time as then may be required by law following the
recordation of said Notice of Default and Notice of Sale having been given as
than required by law, Trustee, without demand on Trustor, shall sell said
property at the time and place fixed by it in said Notice of Sale, either as
a whole or in separate parcels and in such order as it may determine (but
subject to any statutory right of Trustor to direct the order in which said
property, if consisting of several lots or parcels, shall be sold), 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
said 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 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.
Trustee shall deliver to such purchaser its deed conveying the property so
sold, but without any covenant or warranty, expressed or implied. The
recitals in such deed of any matters or facts shall be conclusive proof of
the truthfulness thereof. Any person including the Trustor, Trustee, or
Beneficiary as hereinafter defined, 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 rate prescribed in the
Note; all other sums then secured thereby; and the remainder, if any, to the
person or persons legally entitled thereto.
(17) Beneficiary, or any successor in ownership of any indebtedness secured
hereby, may from time to time, by instrument in writing, substitute a
successor or successors to any Trustee named herein or acting hereunder,
which instrument, executed by the Beneficiary and duly acknowledged and
recorded in the office of the recorder of the county or counties where said
property is situated, shall be conclusive proof of proper substitution of
such successor Trustee or Trustees, who shall, without conveyance from the
Trustee predecessor, succeed to all its title, estate, rights, powers and
duties.
Said instrument must contain the name of the original Trustor, Trustee and
Beneficiary hereunder, the book and page where this Deed is recorded and the
name and address of the new Trustee. If Notice of Default shall have been
recorded, this power of substitution cannot be exercised until after the
costs, fees and expenses of the then acting Trustee shall have been paid to
such Trustee, who shall endorse receipt thereof upon such instrument of
substitution. The procedure herein provided for substitution of Trustees
shall not be exclusive of other provisions for substitution provided by law.
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(18) If the security under this Deed of Trust is a condominium or a community
apartment or planned development project, Trustor agrees to perform each and
every obligation of the owner of such condominium or interest in such project
under the declaration of covenants, conditions and restrictions or bylaws or
regulations pertaining to such condominium or project. Upon the request of
Beneficiary, Trustor agrees to enforce against other owners in such
condominium or protect each and every obligation to be performed by them, if
the same have not been performed or if valid legal steps have not been taken
to enforce such performance within ninety (90) days after such request is
made.
IT IS AGREED BY THE UNDERSIGNED THRUSTOR THAT THE ATTACHED 'ABSOLUTE
ASSIGNMENT OF RENTS RIDER' IS INCORPORATED HERETO AND IS MADE A PART HEREOF.
This undersigned Trustor(s), requests that a copy of any Notice of Default
and any Notice of Sale hereunder be mailed to him at his address hereinbefore
set forth.
SIGNATURE OF TRUSTOR SIGNATURE OF TRUSTOR
By: /S/ Xxxxx Xxxxxxx
----------------------------- ---------------------------------
A W G , LTD., a Nevada Corporation
By: XXXXX XXXXXXX PRESIDENT
State of California }
}ss.
County of NAPA }
On April 17, 1996 before me, Xxxxxx X. Xxxxxxxx ,
Notary Public, personally appeared:
Xxxxx Xxxxxxx, President
-------------------------------
[ ] personally known to me; or
[ X ] proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) IS/HER/THEIR autorized capacity(ies), and
that by HIS/HER/THEIR signature(s) on the instrument the person or entity
upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Xxxxxx X. Xxxxxxxx
-------------------------------
Notary Signature
XXXXXX X. XXXXXXXX
COMM. #1071068
NOTARY PUBLIC - CALIFORNIA
NAPA COUNTY
My Comm. Expires SEPT. 4, 1999
Generated by Golden Omega Software (000)000-0000 Page 4 of 4
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ABSOLUTE ASSIGNMENT OF RENTS RIDER
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This ABSOLUTE ASSIGNMENT OF RENTS made April 12, 1996 between:
A W G , a ______________________ Nevada corporation
hereinafter referred to as "Assignor" (also known as Trustor under the Deed
of Trust of same date of which this document is a rider thereto)and:
BAR-K INC., a California corporation
hereinafter referred to as "Assingee" (also known as Beneficiary under the
Deed of Trust of same date of which this document is a rider thereto) hereby
agree to the following:
A. Assignor is the record fee owner of the certain real property (the
"Property" hereinafter), consisting of an improved multiple rental unit
building located in the County of NAPA , State of California described as:
SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF FOR COMPLETE
LEGAL DESRIPTION. A.P.N.: 000-000-000 AND 000-000-000
Property commonly known as: 0000 XXX XXXXX XXXX, XXXX, XX
Any advances made by beneficiary or other entities to protect their interest
in this Deed of Trust shall earn interest at the rate of interest on the Note
that secures this Deed of Trust and can be added to the principal balance of
said note.
B. Assignor, as Trustor, has executed a Deed of Trust in favor of Assignee,
as Beneficiary, to secure a loan made by Assignee to Assignor. Said Deed of
Trust incorporates this document by reference.
NOW THEREFORE, FOR VALUABLE CONSIDERATION, the parties hereto agree as
follows:
1. Assignor grants, transfers and assigns to Assignee all rents, ussues and
profits from the Property, as well as Assignor's interest in all leases, oral
or written, now in effect or hereinafter entered into concerning the
Property.
2. Assignor reserves the right to collect the rents, issues and profits from
the Property only for so long as Assignor is not in default under the terms
of the Deed of Trust.
(Generated by Golden Omega Software (000)000-0000) Page 1 of 3
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ABSOLUTE ASSIGNMENT OF RENTS RIDER (continued)
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3. In the event of a default by Assignor under the terms of the Deed of
Trust, Assignee shall be entitled to accelerate all sums due under the loan
secured said Deed of Trust in accordance with the terms thereof and is
authorized to enter into and upon the Property, by itself or through an
agent, for the purpose of collecting the rents, issues and profits from the
Property. In such event Assignee may, in its sole discretion, take and hold
possession of the Property, operate and manage the Property and take such
other action as it may deem necessary to protect its security interest in the
Property and its rents, issues and profits. Assignor appoints Assignee its
true, lawful and irrevocable attorney to demand, receive and enforce payment,
to give receipts, releases and satisfactions, and to xxx, either in the name
of Assignor or in the name of the Assignee, for all such rents.
4. In addition to the rights set forth in paragraph 3 above, Assignee may
exercise any other remedy it has at law or pursuant to the terms of the Deed
of Trust. Without in any way limiting the foregoing, Assignee shall have the
right, in its sole discretion, to seek the appointment of a receiver to take
possession of the property, manage same, and collect the rents, issues and
profits on behalf of Assignee.
5. Assignor agree not to collect any rent, issues or profits occurring under
the leases, rental agreements or otherwise from the Property in advance of
the time when they shall become due without the prior written consent of
Assignee.
6. Assignee does not assume any of the Assignor's obligations under any lease
or any other agreement assigned hereunder, and Assignor agrees to keep and
perform all obligations thereunder and to save Assignee harmless from the
consequences of any failure to do so.
7. Assignor agree that it will not assign any interest in any lease, or any
other agreement to pay any rent assigned hereunder, and that notice of this
Agreement may be given to any lessee or party to any such agreement at any
time at Assignee's option.
8. This Assignment is intended by Assignor and Assignee to create an absolute
assignment to Assignee, rather than an assignment for security purpose only.
Any sums collected by or on behalf of Assignee pursuant to the provisions of
this Assignment shall be applied first to the payment of any costs incurred
for management of the property and collection of rents (including, but not
limited to receiver's fees, premiums on receiver's bonds and reasonable
attorney's fees), and then to other sums secured by the Deed of Trust. All
notices, requests, demands and other communications hereunder shall be deemed
to have been duly given if delivered in person or by United States mail,
certified or registered, return receipt requested, or otherwise actually
delivered to the corresponding notice address listed below.
Notice Address for Assignor: Notice Address for Assignee:
A W G , LTD. BAR-K INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
SIGNATURE OF ASSIGNOR (Trustor)
/S/ Xxxxx Xxxxxxx
-------------------------------- ------------------------------
A W G , LTD., a
Nevada corporation
By: XXXXX XXXXXXX, PRESIDENT
--------------------------------
SEE NEXT PAGE FOR NOTARY
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ABSOLUTE ASSIGNMENT OF RENTS RIDER (continued)
-----------------------------------------------------------------------------
State of California }
}ss.
County of NAPA }
On April 17, 1996 before me, Xxxxxx X. Xxxxxxxx,
Notary Public, personally appeared:
Xxxxx Xxxxxxxx, President
--------------------------------------
[ ] personally known to me; or
[ X ] 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 or entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal. XXXXXX X. XXXXXXXX
COMM. #1071068
Xxxxxx X. Xxxxxxxx NOTARY PUBLIC - CALIFORNIA
Notary Signature NAPA COUNTY
My Comm. Expires SEPT. 4, 1998
State of California }
}ss.
County of _______________ }
On _____________ 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 signatures(s) on the
instrument the person or entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
-----------------------------
Notary Signature
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END OF DOCUMENT Page 1
Escrow No. 71097 - 74
LEGAL DESCRIPTION EXHIBIT "A"
COMMENCING AT A POINT ON THE NORTHEASTERN LINE OF THE COUNTY ROAD COMMONLY
KNOWN AS THE "BIG RANCH ROAD", WHERE THE SAME IS INTERSECTED BY THE CENTER
LINE OF A CERTAIN STONE DITCH RUNNING THROUGH LOT 12 AS SAID LOT IS SHOWN
UPON THE MAP HEREINAFTER REFERRED TO, SAID POINT OF COMMENCEMENT BEING
FURTHER DESCRIBED AS BEING THE POINT OF INTERSECTION OF SAID NORTHEASTERN
LINE OF THE "BIG RANCH ROAD" WITH THE SOUTHEASTERN LINE OF THE 39.25 ACRE
TRACT HERETOFORE CONVEYED TO L.L. JORDAN BY DEED OF RECORD IN BOOK 112 OF
DEEDS, AT PAGE 18. RECORDS OF SAID NAPA COUNTY AND RUNNING THENCE FROM SAID
POINT OF COMMENCEMENT, AND ALONG THE NORTHEASTERN LINE OF SAID COUNTY ROAD
SOUTH 30 30' EAST 849.5 FEET TO THE SOUTHEASTERN LINE OF SAID XXX 00, XXXXXX
XXXXX 00 XXXX XXX XXXXX THE SOUTHEASTERN LINE SAID LOT 12, A DISTANCE OF
46.90 CHAINS, MORE OR LESS. TO THE CENTER OF NAPA RIVER; THENCE UP SAID RIVER
AND FOLLOWING MEANDERINGS OF THE CENTER LINE THEREOF TO THE SOUTHEASTERN LINE
OF THE 33 ACRE TRACT CONVEYED TO X.X. XXXXXXX BY DEED OF RECORD IN BOOK 110
OF DEEDS, AT PAGE 362, SAID NAPA COUNTY RECORDS, THENCE WESTERLY ALONG THE
SOUTHEASTERN LINE OF SAID 33 ACRE TRACT TO A LARGE OAK TREE AND THENCE SOUTH
55 3/4 WEST AND ALONG THE SOUTHEASTERN LINE OF SAID XXXXXXX AND THE
SOUTHEASTERN LINE OF PREMISES CONVEYED TO JORDAN HEREINABOVE REFERRED TO,
1967 FEET TO THE POINT OF COMMENCEMENT. BEING A PORTION OF LOT 12, AS SHOWN
ON THAT CERTAIN MAP, DUPLICATE PLAT OF THE SAUSAL RANCHO, RECORDED NOVEMBER
21, 1864 IN BOOK 1 OF DEEDS AT PAGE 99, NAPA COUNTY RECORDS, AND BEING THE
SAME AS SET FORTH ON RECORD OF SURVEY MAP NO. 3998, FILED FEBRUARY 2, 1987 IN
BOOK 25 OF SURVEYS, PAGE 62, NAPA COUNTY RECORDS.
EXCEPTING THEREFROM THOSE LANDS DESCRIBED IN THE DEED TO XXXXX X. XXXXXXXXX,
RECORDED SEPTEMBER 9, 1993, INSTRUMENT NO. 1993-031422, NAPA COUNTY RECORDS.
PARCEL TWO:
THOSE LANDS DESCRIBED IN THE DEED TO XXXXX X. XXXXXXXXX, RECORDED SEPTEMBER
29,1993, INSTRUMENT NO. 1993-031422, NAPA COUNTY RECORDS, WHICH IS DESCRIBED
AS FOLLOWS:
BEGINNING AT THE POINT FORMED BY THE INTERSECTION OF THE EASTERN LINE OF THE
COUNTY ROAD COMMONLY KNOWN AS BIG RANCH ROAD WITH THE SOUTHERN LINE OF THE 55
ACRE TRACT OF LAND DESCRIBED AS PARCEL ONE, FIRST TRACT, IN THE DECREE IN THE
ESTATE OF XXXXXX XXXXXXX, DECEASED, AND RECORDED OCTOBER 10, 1950, IN VOLUME
346 OF OFFICIAL RECORDS, PAGE 446, NAPA COUNTY RECORDS; RUNNING THENCE ALONG
THE EASTERN LINE OF SAID BIG RANCH ROAD NORTH 30 30' WEST 325.57 FEET; THENCE
NORTH 55 52' EAST 258.83 FEET AND NORTH 32 33' WEST 79.82 FEET TO THE TRUE
POINT OF COMMENCEMENT OF THE TRACT OF LAND HEREIN DESCRIBED: RUNNING THENCE
FROM SAID POINT OF COMMENCEMENT NORTH 56 07' EAST 400.00 FEET: THENCE SOUTH
32 33' EAST 230.00 FEET; THENCE SOUTH 56 07' WEST 400.00 FEET; THENCE NORTH
32 33' WEST 230.00 FEET TO THE POINT OF COMMENCEMENT.
BEING A PORTION OF LOT NO. 12 AS SAID LOT IS SHOWN ON THAT CERTAIN MAP
ENTITLED "DUPLICATE PLAT OF THE SAUSAL RANCHO, NAPA, COUNTY, CALIFORNIA"
RECORDED NOVEMBER 21, 1864, IN VOLUME "1" OF DEEDS, PAGE 99, SAID NAPA COUNTY
RECORDS.
ALSO A RIGHT-OF-WAY FOR ROAD PURPOSES, 20.00 FEET WIDE. THE CENTERLINE OF
WHICH IS DESCRIBED AS FOLLOWS:
COMMENCING AT A POINT ON THE EASTERN LINE OF SAID BIG RANCH ROAD, SAID POINT
BEING DISTANT THEREON NORTH 30 30' WEST 325.57 FEET FROM THE INTERSECTION
THEREOF WITH THE SOUTHERN LINE OF THE 55 ACRE TRACT HEREINABOVE REFERRED TO;
RUNNING THENCE NORTH 55 52' EAST 258.83 FEET TO A POINT ON THE WESTERN LINE
OF THE 2.11 ACRE TRACT HEREINABOVE DESCRIBED; SAID POINT BEING SOUTH 32 33'
EAST 79.82 FEET DISTANT THEREON FROM THE NORTHWESTERN CORNER OF SAID 2.11
ACRE TRACT.
MODIFICATION OF PROMISSORY NOTE AND LOAN AGREEMENT
The undersigned parties to this agreement intend to modify that
certain promissory note dated April, 12, 1996 executed by A W G, Ltd., a
Nevada corporation, as Payee, in favor of Bar-K, Inc., a California
corporation, as Lender, in the amount of $1,680,000.00 (the "promissory
note"). As consideration for such modification of promissory note, A W G ,
Ltd., a Nevada corporation, agrees to pay to Bar-K, Inc., a California
corporation, a modification of promissory note fee of $10,750.00 and A W G,
Ltd., a Nevada corporation agrees to pay the amounts stated in Section 2 and
3 below.
The parties agree to modify the promissory note as follows:
1. The principal balance due under the promissory note as of
September 15, 1997 was $1,666,139.27.
2. A payment of $14,000.00 was due on October 15, 1997 and a payment
of $14,000.00 is due on November 15, 1997.
3. A late charge of $1,400.00 is due for the payment which was due
on October 15, 1997.
4. The requirement to pay the $200,000.00 payment on October 15,
1996 is waived.
This Modification of Promissory Note and Loan Agreement shall not be
effective until and unless (a) Bar K, Inc. receives from Chicago Title
Insurance Company a 110.5 endorsement which insures the priority of this
Modification of Promissory Note and Loan Agreement, and (b) promissory note
shall be null and void unless these conditions are performed on or before
November 14, 1997.
Upon this modification of promissory note becoming effective, the
promissory note shall be current and all other provisions of the promissory
note shall remain the same.
A W G , Ltd., a Nevada corporation Bar K, Inc., a California corporation
/S/ Xxxx X. Xxxxxxxx /S/ Xxxxx Xx
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By: Xxxx X. Xxxxxxxx By: Xxxxx XX
Its: President Its: Vice President
Dated: 12/01/97 Dated: 11/10/97
MODIFICATION AGREEMENT
