DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING
EXHIBIT
10.2
EXECUTION
VERSION
PREPARED
BY AND,
WHEN
RECORDED, RETURN TO:
Xxxxx
& XxXxxxx LLP
000 X.
Xxxxx Xxx., Xxx. 0000 Xxx Xxxxxxx, XX 00000 Attention: Xxxxxxx du
Quesnay
|
Space
Above This Line For Recorder’s Use
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DEED OF TRUST, ASSIGNMENT OF
LEASES AND RENTS,
SECURITY AGREEMENT AND
FIXTURE FILING
by
ZAP,
a
California corporation
(Trustor)
to
Fidelity
National Title Company
having an
address at:
000 Xxxx
Xxxxxx
Xxxxxxxxxx,
XX 00000
(Trustee)
for the
benefit of
Xx Xxxxxx
LLC (Beneficiary)
| Dated: |
As of
July 30, 2008
|
| Location: |
000
Xxxxxx Xxxxxx
Xxxxx Xxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx
00000
|
DEED OF TRUST, ASSIGNMENT OF
LEASES AND RENTS,
SECURITY AGREEMENT AND
FIXTURE FILING
THIS DEED
OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING
(this “Deed of
Trust”) is made as of July 30, 2008 by Zap, a California corporation,
having an address at 000 0xx
Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000 (“Trustor”) to
Fidelity National Title Company (“Trustee”), in favor
of Xx Xxxxxx LLC, having an address of Mezzanine Floor, Yamaha Showroom, Sheikh
Zayed Road, Dubai, United Arab Emirates (together with its successors and
assigns, “Beneficiary”).
STATEMENT
OF PURPOSE
Trustor
and Beneficiary are parties to a Promissory Note dated as of the date hereof
(the “Note”),
which Note provides for a loan in the initial principal amount of one million
seven hundred and sixty thousand dollars ($1,760,000), and a maximum principal
amount not to exceed, at any one time, ten million dollars ($10,000,000) (the
“Loan”) to be
made by Beneficiary to Trustor; and
It is a
condition to the obligation of Beneficiary to make the loan to Trustor pursuant
to the Note that Trustor execute and deliver this Deed of Trust.
AGREEMENT
NOW,
THEREFORE, in consideration of the making of the Loan by Beneficiary to Trustor
and the covenants, agreements, representations and warranties set forth in the
Loan Documents, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and for the purpose of securing the
payment and performance of the following (collectively, the “Loan Obligations”):
(a) all principal (including, without limitation, any advance to Trustor now or
hereafter made), interest thereon and all other sums due and/or payable, and all
obligations owing by Trustor, under any Loan Document and amendments,
modifications, extensions, substitutions, exchanges and renewals thereof (each
of which shall enjoy the same priority as the advance made on the Closing Date
as evidenced by the Note); and (b) all covenants, agreements and other
obligations of Trustor under the Loan Documents;
Trustor
hereby irrevocably grants, bargains, sells, releases, conveys, warrants,
assigns, transfers, mortgages, pledges, sets over and confirms unto Trustee, its
successors and assigns, in trust, WITH POWER OF SALE AND RIGHT OF ENTRY AND
POSSESSION, to have and to hold forever for the security and benefit of
Beneficiary and its successors and assigns, all of Trustor’s right, title and
interest in and to the following property, rights, interests and estates, now
existing or hereafter coming into existence (the property, rights, interests and
estates hereinafter described are collectively referred to herein as the “Mortgaged Property”): (i) all
the land located in the County and State identified on Exhibit A attached
hereto, as more particularly described on such Exhibit A (the “Land”), (ii) the
Contracts; (iii) the Appurtenant Rights, (iv) the Equipment, (v) the General
Intangibles, (vi) the Improvements, (vii) the Leases, (viii) the Permits (to the
fullest extent assignable), (ix) the Rents, (x) the Proceeds, and (xi) any and
all other rights of Trustor in
Deed of
Trust, Assignment of Leases and Rents,
Security
Agreement and Fixture Filing
and to
the items set forth in clauses (i) through (x) above, all whether now owned or
hereafter acquired, and all other property which is or hereafter may become
subject to a lien in favor of Beneficiary pursuant to any Loan
Document.
TO HAVE
AND TO HOLD the Mortgaged Property and all parts thereof unto Trustee, its
successors and assigns, for the benefit of Beneficiary, their successors and
assigns forever;
This Deed
of Trust secures all present and future loan disbursements or advances made by
Beneficiary under the Note, and all other sums from time to time owing to
Beneficiary by Trustor under the Loan Documents and under the Debt. The amount
of the present disbursement or advance secured is one million seven hundred and
sixty thousand dollars ($1,760,000), and the maximum principal amount which may
be secured at any one time is ten million dollars ($10,000,000). The time period
within which such future disbursements or advances are to be made is the period
between the date of this Deed of Trust and July 30, 2009;
PROVIDED,
HOWEVER, that these presents are upon the express condition that, if Trustor
shall pay or cause to be paid to Beneficiary all sums due Beneficiary with
respect to the Loan under the Loan Documents and keep, perform and observe all
the covenants and promises in each of the Loan Documents, all without fraud and
delay, then this Deed of Trust, and all the properties, interests, and rights
hereby granted, bargained, and sold shall cease, terminate and be void and
Beneficiary shall instruct Trustee to effect a full and proper termination,
release and reconveyance; otherwise the same shall remain in full force and
effect.
TO
PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR HEREBY COVENANTS AND AGREES
AS FOLLOWS:
ARTICLE
1
DEFINITIONS
Section
1.1. Certain Defined
Terms. For all purposes of this Deed of Trust, all capitalized terms
shall have the meaning ascribed in this Section 1.1 or if not defined herein,
then as defined in the Note:
“Appurtenant Rights”
means all easements, rights-of-way, strips and gores of land, vaults, streets,
ways, alleys, passages, sewer rights, waters, water courses, water rights, air
rights, development rights and powers, and, to the extent now or hereafter owned
by Trustor, all minerals, flowers, shrubs, crops, trees, timber and other
emblements now or hereafter appurtenant to, or used in connection with, or
located on, under or above the Land or any part or parcel thereof, and all “as
extracted collateral” (as defined in the UCC), and all ground leases, subleases,
estates, rights, titles, interests, privileges, liberties, tenements,
hereditaments and appurtenances, reversions, and remainders whatsoever, in any
way belonging, relating or appertaining to the Land or any part
thereof.
“Contracts” means,
collectively, (a) all contracts between Trustor and third parties in connection
with the management, construction, repair, renovation, use, operation or
maintenance of the Mortgaged Property, in each case as the same may thereafter
from time to time be amended or modified; and (b) all warranties, guarantees,
and other rights of Trustor, direct and indirect, against manufacturers,
dealers, suppliers, and others in connection with the above
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contracts
and agreement or the work done or to be done and the materials supplied or to be
supplied to or for the Mortgaged Property.
“Equipment” means all
of Trustor’s “equipment,” as such term is defined in the UCC, and, to the extent
not included in such definition, all fixtures, appliances, machinery, “software”
(as defined in the UCC), furniture, furnishings, decorations, tools and
supplies, now owned or hereafter acquired by Trustor, including without
limitation, all beds, linens, radios, televisions, carpeting, telephones, cash
registers, computers, electronic data-processing or other office equipment,
lamps, glassware, restaurant and kitchen equipment, and building equipment,
including, without limitation, all heating, lighting, incinerating, waste
removal and power equipment, engines, pipes, tanks, motors, conduits,
switchboards, security and alarm systems, plumbing, lifting, cleaning, fire
prevention, fire extinguishing, refrigeration, washing machines, dryers, stoves,
refrigerators, ventilating, and communications apparatus, air cooling and air
conditioning apparatus, escalators, elevators, ducts, and compressors, materials
and supplies, and all other machinery, apparatus, equipment, fixtures and
fittings now owned or hereafter acquired by Trustor to the extent that the same
are located at the Mortgaged Property, any portion thereof or any appurtenances
thereto, together with all additions, replacements, parts, fittings, accessions,
attachments, accessories, modifications and alterations of any of the
foregoing.
“General Intangibles”
means all of Trustor’s “general intangibles,” as such term is defined in the
UCC, and, to the extent not included in such definition, all intangible personal
property of Trustor (other than Accounts, Rents, Instruments, Inventory, money
and Permits), including, without limitation, choses in action, settlements,
judgments, contract rights, rights to performance (including, without
limitation, rights under warranties) refunds of real estate taxes and
assessments and other rights to payment of money, copyrights, trademarks, trade
names, service marks, trade secrets, and patents, the goodwill associated with
any of the foregoing, and all applications for any of the foregoing, in each
case whether now existing or hereafter in existence, in each case to the extent
that such General Intangibles are related to the Mortgaged
Property.
“Improvements” means
all buildings, structures and improvements of every nature whatsoever situated
on the Land on the Closing Date or thereafter, including, without limitation, to
the extent of Trustor’s right, title or interest therein or thereto, all gas and
electric fixtures, radiators, heaters, washing machines, dryers, refrigerators,
ovens, engines and machinery, boilers, ranges, elevators and motors, plumbing
and heating fixtures, antennas, carpeting and other floor coverings, water
heaters, awnings and storm sashes, and cleaning apparatus which are or shall be
attached to the Land or said buildings, structures or improvements.
“Leases” means all
leases and other agreements or arrangements, if any, affecting the use or
occupancy of all or any portion of the Mortgaged Property now in effect or
hereafter entered into (including all lettings, subleases, licenses,
concessions, tenancies and other occupancy agreements covering or encumbering
all or any portion of the Mortgaged Property), together with any guarantees,
supplements, amendments, modifications, extensions and renewals of the
same.
“Permits” means all
licenses, registrations, permits, allocations, filings, authorizations,
approvals and certificates used in connection with the ownership, operation,
construction,
3
renovation,
use or occupancy of the Mortgaged Property, including, without limitation,
building permits, business licenses, state health department licenses, food
service licenses, liquor licenses, licenses to conduct business and all such
other permits, licenses and rights, obtained from any governmental authority or
private person concerning the ownership, construction, operation, renovation,
use or occupancy of the Mortgaged Property.
“Proceeds” means all
of Trustor’s “proceeds” as such term is defined in the UCC and, to the extent
not included in such definition, all proceeds, whether cash or non-cash, movable
or immovable, tangible or intangible (including insurance proceeds, condemnation
proceeds, and proceeds of proceeds), from the Security Interest Property,
including, without limitation, those from the sale, exchange, transfer,
collection, loss, damage, disposition, substitution or replacement of any of the
Security Interest Property and all income, gain, credit, distributions and
similar items from or with respect to the Security Interest
Property.
“Rents” means, with
respect to the Mortgaged Property, all rents (whether denoted as advance rent,
minimum rent, percentage rent, additional rent or otherwise), receipts, issues,
income, royalties, profits, revenues, proceeds, bonuses, deposits (whether
denoted as security deposits or otherwise), lease termination fees or payments,
rejection damages, buy-out fees and any other fees made or to be made in lieu of
rent, any award made hereafter to Trustor in any court proceeding involving any
tenant, lessee, licensee or concessionaire under any of the Leases in any
bankruptcy, insolvency or reorganization proceedings in any state or federal
court, and all other payments, rights and benefits of whatever nature from time
to time due under the Leases.
“UCC” means the
Uniform Commercial Code in effect in the jurisdiction in which the Mortgaged
Property or any of the Security Interest Property is located, as
applicable.
ARTICLE
2
COVENANTS
AND AGREEMENTS OF TRUSTOR
Section
2.1. Payment of
Secured Loan Obligations; Incorporation by Reference. Trustor shall pay
when due the principal, interest thereon and all other sums, charges, fees and
other Loan Obligations due and/or payable under any Loan Document all as in
accordance with the Loan Documents. All of the covenants, conditions and
agreements contained in the Loan Documents are hereby made a part of this Deed
of Trust to the same extent and with the same force as if fully set forth
herein.
Section
2.2. No
Transfer. Trustor shall not and shall not cause, allow, or permit, and
shall prevent from occurring, a transfer of the Mortgaged Property, except as
expressly permitted pursuant to the Note. In the event of any violation of this
Section 2.2,
Beneficiary may, at its option, accelerate and declare the outstanding Debt
immediately due and payable, without notice or demand, and whether or not
Beneficiary shall have commenced any foreclosure proceeding or other action for
the enforcement of its rights and remedies under any Loan Document with respect
to any Mortgaged Property or all or any portion of the Security Interest
Property.
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Section
2.3. Duty to Defend;
Filing; Re-Filing; Etc.
(a) Trustor
will forever defend the title to the Mortgaged Property and the validity and
priority of the lien or estate hereof against the claims and demands of all
persons whomsoever.
(b) Trustor
shall execute, acknowledge and deliver, from time to time, such further
instruments as Trustee or Beneficiary may reasonably require to accomplish the
purposes of this Deed of Trust. Trustor hereby irrevocably authorizes and
appoints Beneficiary as its attorney-infact, coupled with an interest, for
the purpose of exercising and perfecting any and all rights and remedies
available to Beneficiary at law and in equity, including, without limitation,
such rights and remedies available to Beneficiary pursuant to this Deed of
Trust.
(c) Trustor
shall pay all intangible taxes, recording taxes, filing, registration and
recording fees, all refiling, re-registration and re-recording fees, and all
expenses incident to the execution, filing, recording and acknowledgment of this
Deed of Trust, any security agreement, mortgage, modification or amendment
supplemental hereto and any document, instrument and agreement of further
assurance, and all federal, state, county and municipal stamp taxes and other
taxes, duties, imposts, assessments and charges arising out of the execution,
delivery, filing, registration and recording of the Note, this Deed of Trust or
any of the other Loan Documents, any security agreement or mortgage or deed of
trust modification or amendment supplemental hereto or any document instrument
or agreement of further assurance.
(d) Trustor
hereby indemnifies and holds Beneficiary harmless from any sales or use tax that
may be imposed on Beneficiary by virtue of the Loan other than taxes imposed on
the income, stock or assets of Beneficiary.
ARTICLE
3
ASSIGNMENT
OF RENTS, ISSUES, PROFITS AND CONTRACTS
Section
3.1. Assignment of
Rents, Issues and Profits. Trustor hereby absolutely and unconditionally
assigns to Beneficiary all of Trustor’s right, title and interest in all current
and future Leases and Rents, it being intended that this Deed of Trust
constitute a present, absolute assignment and not an assignment for additional
security only. This Article 3 presently
gives Beneficiary the right to collect Rents and to apply Rents in partial
payment of the Loan Obligations and otherwise in accordance with the Note.
Trustor intends that the Rents and Leases be absolutely assigned and no longer
be, during the term of this Deed of Trust, property of Trustor or Trustor’s
estate, as defined by 11 U.S.C. §541. If any law exists requiring Beneficiary to
take actual possession of the Mortgaged Property (or some action equivalent to
taking possession of the Mortgaged Property, such as securing the appointment of
a receiver) for Beneficiary to “perfect” or “activate” the rights and remedies
of Beneficiary as provided herein, Trustor waives the benefit of such law. Such
assignment to Beneficiary shall not be construed to bind Beneficiary to perform
any covenants, conditions or provisions contained in any Lease or otherwise
impose any obligation upon Beneficiary, and notwithstanding this Deed of Trust,
Trustor shall remain liable for any obligations undertaken by Trustor pursuant
to any Lease. Subject to the terms of this Article 3 and the
Note, Beneficiary grants to Trustor a license, revocable as hereinafter
provided, to operate and manage the Mortgaged Property and to
collect
5
and use
the Rents. If an Event of Default occurs, the license granted to Trustor herein
may, at Beneficiary’s election, be revoked by Beneficiary, and Beneficiary shall
immediately be entitled to possession of all Rents then or thereafter payable
(including Rents past due and unpaid) whether or not Beneficiary enters upon or
takes control of the Mortgaged Property. Any Rents collected by Trustor from and
after the date on which an Event of Default occurred and is continuing shall be
held by Trustor in trust for Beneficiary. Trustor hereby grants and assigns to
Beneficiary the right, at Beneficiary’s option, upon revocation of the license
granted herein, to enter upon the Mortgaged Property in person, by agent or by
court appointed receiver to collect Rents with or without taking the actual
possession of the Mortgaged Property or any equivalent action. Beneficiary may
apply any Rents collected after the license granted herein is revoked in
Beneficiary’s sole and absolute discretion to pay the Loan Obligations in such
order and in such manner as Beneficiary shall elect.
Section
3.2. Assignment of
Contracts. Trustor hereby absolutely and unconditionally assigns to
Beneficiary all of Trustor’s right, title and interest in and to the Contracts
to the maximum extent allowable by law and to the maximum extent allowable under
the terms of each individual Contract, it being intended that this assignment be
an absolute assignment from Trustor to Beneficiary and not merely the granting
of a security interest. Until the occurrence of an Event of Default, Trustor may
retain, use and enjoy the benefits of the Contracts. Upon the occurrence and
during the continuance of an Event of Default, the license described in the
preceding sentence shall, upon Beneficiary’s election, be automatically revoked,
and Beneficiary may elect to exercise any and all of Beneficiary’s rights and
remedies hereunder.
ARTICLE
4
SECURITY
AGREEMENT AND FIXTURE FILING
As
additional security, Trustor, as debtor, hereby grants to Beneficiary, as
secured party, a continuing security interest in the portion of the Mortgaged
Property which is or may be subject to the provisions of the UCC which are
applicable to secured transactions, and in any property as to which a security
interest can be created or perfected, now existing or hereafter coming into
existence, and all substitutions replacements, renewals and additions to and all
products and Proceeds of the foregoing (collectively, the “Security Interest
Property”). This Deed of Trust is intended to be and shall be effective
as a security agreement and “fixture filing” under the UCC or other law
applicable to the creation of liens on and security interests in personal
property and fixtures. As further security for the payment and performance of
the Loan Obligations, this Deed of Trust shall constitute a financing statement
under the UCC with Trustor, as debtor, and Beneficiary, as secured party. To the
extent permitted by law, Trustor hereby authorizes Beneficiary to file financing
and continuation statements necessary to continue the lien of and security
interest evidenced by this Deed of Trust with respect to the Security Interest
Property (and confirms that Beneficiary is a person entitled to file a record,
and that Trustor has authorized all such filings, within the meaning of Section
9-509 of the UCC). The principal places of business and mailing addresses of
Trustor, as debtor, and Beneficiary, as secured party, respectively, are as set
forth on page one hereof. Trustor’s location, for purposes of Section 9-307 of
the UCC, is Trustor’s state of incorporation as set forth on page 1 hereof.
Information relative to the security interest created hereby may be obtained by
application to Beneficiary.
6
ARTICLE
5
REMEDIES
Section
5.1. Acceleration of
Maturity. If an Event of Default shall have occurred, then the entire
Debt and all other Loan Obligations shall, at the option of Beneficiary, become
due and payable without notice or demand, time being of the essence; and any
omission on the part of Beneficiary to exercise such option when entitled to do
so shall not be considered as a waiver of such right. Trustor hereby expressly
waives presentment, demand for payment, notice of protest, notice of dishonor,
notice of intent to accelerate the maturity of the Debt and notice of
acceleration of the maturity of the indebtedness secured hereby.
Section
5.2. Default
Remedies.
(a) If an
Event of Default shall have occurred and be continuing, this Deed of Trust may,
to the maximum extent permitted by law, be enforced, and Beneficiary, or Trustee
in response to Beneficiary’s request (which Trustor agrees shall be presumed to
have been made), may exercise any right, power or remedy permitted to it
hereunder, under the Note or under any of the other Loan Documents or at law or
in equity, and, without limiting the generality of the foregoing, Trustee or
Beneficiary may, personally or by their agents, to the maximum extent permitted
by law:
(i) enter
into and take possession of the Mortgaged Property or any part thereof, exclude
Trustor and all persons claiming under Trustor whose claims are junior to this
Deed of Trust, wholly or partly therefrom, and use, operate, manage and control
the Mortgaged Property or any part thereof either in the name of Trustor or
otherwise as Beneficiary shall deem best, and upon such entry, from time to time
at the expense of Trustor and the Mortgaged Property, make all such repairs,
replacements, alterations, additions or improvements to the Mortgaged Property
or any part thereof as Beneficiary may reasonably deem proper and, whether or
not Beneficiary has so entered and taken possession of the Mortgaged Property or
any part thereof, collect and receive all Rents and apply the same to the
payment of all expenses that Trustee or Beneficiary may be authorized to make
under this Deed of Trust, the remainder to be applied to the payment of the Loan
Obligations until the same shall have been repaid in full, take possession of
all security deposits held with respect to the Mortgaged Property, whether or
not Trustee or Beneficiary enters upon or takes control of the Mortgaged
Property and regardless of where any such security deposits are deposited or
located; if Beneficiary demands or attempts to take possession of the Mortgaged
Property or any part thereof in the exercise of any rights hereunder, Trustor
shall promptly turn over and deliver complete possession thereof to
Beneficiary;
(ii) effect
new Permits and Contracts; amend, alter, renew, cancel or surrender existing
Permits and Contracts; and make concessions to the governmental authorities, the
Contractors, warrantors and others; and
(iii) personally
or by agents, with or without entry:
7
(x) invoke
the power of sale and pursuant to the procedures prescribed by law as a result
thereof, sell the Mortgaged Property or any part thereof, or cause the Mortgaged
Property or any part thereof to be sold at a sale or sales held at such place or
places and time or times and upon such notice and otherwise in such manner and
in such order as may be required by law, or, in the absence of any such
requirements, as Beneficiary may deem appropriate and from time to time adjourn
any such sale by announcement at the time and place specified for such sale or
for such adjourned sale without further notice, except such as may be required
by law;
(y) proceed
to protect and enforce Beneficiary’s rights under this Deed of Trust, by suit
for specific performance of any covenant contained herein or in the Loan
Documents or in aid of the execution of any power granted herein or in the Loan
Documents, or for the foreclosure of this Deed of Trust (as a mortgage or
otherwise) and the sale of the Mortgaged Property or any part thereof under the
judgment or decree of a court of competent jurisdiction, or for the enforcement
of any other right as Beneficiary shall elect, provided, that in the event of a
sale, by foreclosure or otherwise, of less than all of the Mortgaged Property,
this Deed of Trust shall continue as a lien on, and security interest in, the
remaining portion of the Mortgaged Property; or
(z) exercise
any or all of the remedies available to a secured party under the UCC,
including, without limitation:
(1) either
personally or by means of a court appointed receiver, take possession of all or
any of the Security Interest Property and exclude therefrom Trustor and all
persons claiming under Trustor, and thereafter hold, store, use, operate,
manage, maintain and control, make repairs, replacements, alterations, additions
and improvements to and exercise all rights and powers of Trustor in respect of
the Security Interest Property, or any part thereof; if Beneficiary demands or
attempts to take possession of the Security Interest Property in the exercise of
any rights hereunder, Trustor shall promptly turn over and deliver complete
possession thereof to Beneficiary;
(2) without
further notice to or demand upon Trustor (except those otherwise required hereby
or by the Note), make such payments and do such acts as Trustee or Beneficiary
may deem necessary to protect its security interest in the Security Interest
Property, including, without limitation, paying, purchasing, contesting or
compromising any encumbrance that is prior to or superior to the security
interest granted hereunder, and in exercising any such powers or authority
paying all expenses incurred in connection therewith, which expenses shall
thereafter become part of the Loan Obligations secured by the lien of this Deed
of Trust;
(3) require
Trustor to assemble the Security Interest Property or any portion thereof, at a
place designated by Trustee or Beneficiary and reasonably convenient to both
parties, and promptly to deliver the Security Interest Property to Beneficiary,
or an agent or representative designated by Beneficiary, and its agents and
representatives, shall have the right to enter upon the premises and property of
Trustor to exercise Beneficiary’s rights hereunder;
8
(4) sell,
lease or otherwise dispose of the Security Interest Property, with or without
having the Security Interest Property at the place of sale, and upon such terms
and in such manner as Beneficiary may determine (and Beneficiary may be a
purchaser at any such sale, provided, however, that Trustee, at the request and
direction of Beneficiary, may dispose of the Security Interest Property in
accordance with Beneficiary’s rights and remedies in respect of the Mortgaged
Property pursuant to the provisions of this Deed of Trust in lieu of proceeding
under the UCC); and
(5) unless
the Security Interest Property is perishable or threatens to decline speedily in
value or is of a type customarily sold on a recognized market, Beneficiary, as
the case may be, shall give Trustor at least ten (10) days prior notice of the
time and place of any sale of the Security Interest Property or other intended
disposition thereof, which notice Trustor agrees is commercially
reasonable.
(b) If an
Event of Default shall have occurred, Beneficiary, to the maximum extent
permitted by law, shall be entitled, as a matter of right, to the appointment of
a receiver of the Mortgaged Property, without notice or demand, and without
regard to the adequacy of the security for the Loan Obligations or the solvency
of Trustor. Trustor hereby irrevocably consents to such appointment and waives
notice of any application therefor. Any such receiver or receivers shall have
all the usual powers and duties of receivers in like or similar cases and all
the powers and duties of Beneficiary in case of entry and shall continue as such
and exercise all such powers until the date of confirmation of sale of the
Mortgaged Property, unless such receivership is sooner terminated.
(c) In any
sale under any provision of this Deed of Trust or pursuant to any judgment or
decree of court, the Mortgaged Property, to the maximum extent permitted by law,
may be sold in one or more parcels or as an entirety and in such order as
Beneficiary may elect, without regard to the right of Trustor or any person
claiming under Trustor to the marshalling of assets. The purchaser at any such
sale shall take title to the Mortgaged Property or the part thereof so sold free
and discharged of the estate of Trustor therein, the purchaser being hereby
discharged from all liability to see to the application of the purchase money.
Upon the completion of any such sale by virtue of this Section 5.2(c),
Trustee or Beneficiary, as the case may be, shall execute and deliver to the
purchaser an appropriate instrument that shall effectively transfer all of
Trustor’s estate, right, title, interest, property, claim and demand in and to
the Mortgaged Property or portion thereof so sold, but without any covenant or
warranty, express or implied. Trustor shall ratify and confirm, or cause to be
ratified and confirmed, any such sale or sales by executing and delivering, or
by causing to be executed and delivered to Beneficiary or to such purchaser or
purchasers all such instruments as may be advisable, in the reasonable judgment
of Beneficiary, for such purpose, and as may be designated in such request. Any
sale or sales made under or by virtue of this Deed of Trust, to the extent not
prohibited by law, shall operate to divest all the estate, right, title,
interest, property, claim and demand whatsoever, whether at law or in equity, of
Trustor in, to and under the Mortgaged Property, or any portions thereof so
sold, and shall be a perpetual bar both at law and in equity against Trustor and
against any and all persons claiming or who may claim the same, or any part
thereof, by, through or under Trustor. The powers and agency herein granted are
coupled with an interest and are irrevocable.
9
(d) All
rights of action under any Loan Document may be enforced by Trustee or
Beneficiary without the possession of the original Loan Documents and without
the production thereof at any trial or other proceeding relative
thereto.
Section
5.3. Application of
Proceeds.
(a) All
proceeds of any repayment of or recoveries on the Loan shall be applied to repay
the Debt in such order and in such manner as Beneficiary shall elect in
Beneficiary’s discretion.
(b) No sale
or other disposition of all or any part of the Mortgaged Property pursuant to
this Section
5.3 shall be deemed to relieve Trustor of its obligations under any Loan
Document except to the extent the proceeds thereof are applied to the payment of
such obligations. If the proceeds of sale, collection or other realization of or
upon the Mortgaged Property are insufficient to cover the costs and expenses of
such realization and the payment in full of the Loan Obligations, Trustor shall
remain liable for any deficiency subject to Section
7.11.
(c) Upon any
sale made under the powers of sale herein granted and conferred, the receipt
given by Beneficiary (or Trustee) will be sufficient discharge to the purchaser
or purchasers at any sale for the purchase money, and such purchaser or
purchasers and their heirs, devisees, personal representatives, successors and
assigns thereof will not, after paying such purchase money and receiving such
receipt of Beneficiary, be obligated to see to the application thereof or be in
any way answerable for any loss, misapplication or non-application
thereof.
Section
5.4. Powers of
Beneficiary. Beneficiary may at any time or from time to time renew or
extend (and direct Trustee to renew or extend) this Deed of Trust or (with the
agreement of Trustor) alter or modify the same in any way, or waive any of the
terms, covenants or conditions hereof or thereof, in whole or in part, and may
release or reconvey, or cause Trustee to release or reconvey, any portion of the
Mortgaged Property or any other security, and grant such extensions and
indulgences in relation to the Loan Obligations, or release any person liable
therefor as Beneficiary may determine without the consent of any junior lienor
or encumbrancer, without any obligation to give notice of any kind thereto,
without in any manner affecting the priority of the lien and estate of this Deed
of Trust on or in any part of the Mortgaged Property, and without affecting the
liability of any other person liable for any of the Loan
Obligations.
Section
5.5. Right to
Xxx. Trustee and Beneficiary shall each have the right from time to time
to xxx for any sums required to be paid by Trustor under the terms of this Deed
of Trust as the same become due, without regard to whether or not the entire
Loan Obligations shall be, or have become, due and without prejudice to the
right of Beneficiary thereafter to bring any action or proceeding of foreclosure
or any other action upon the occurrence of any Event of Default existing at the
time such earlier action was commenced.
Section
5.6. Remedies
Cumulative.
(a) No
right or remedy herein conferred upon or reserved to Trustee or Beneficiary is
intended to be exclusive of any other right or remedy, and each and every right
and remedy shall
10
be
cumulative and in addition to any other right or remedy under this Deed of
Trust, or under applicable law, whether now or hereafter existing; the failure
of Trustee or Beneficiary to insist at any time upon the strict observance or
performance of any of the provisions of this Deed of Trust or to exercise any
right or remedy provided for herein or under applicable law, shall not impair
any such right or remedy nor be construed as a waiver or relinquishment
thereof.
(b) To
the maximum extent permitted by law, Trustee and Beneficiary shall each be
entitled to enforce payment and performance of any of the obligations of Trustor
and to exercise all rights and powers under this Deed of Trust or under any Loan
Document or any laws now or hereafter in force, notwithstanding that some or all
of the Loan Obligations may now or hereafter be otherwise secured, whether by
mortgage, deed of trust, pledge, lien, assignment or otherwise; neither the
acceptance of this Deed of Trust nor its enforcement, whether by court action or
pursuant to the power of sale or other powers herein contained, shall prejudice
or in any manner affect the right of either Trustee or Beneficiary to realize
upon or enforce any other security now or hereafter held by Trustee or
Beneficiary, it being stipulated that Trustee and Beneficiary shall be entitled
to enforce this Deed of Trust and any other security now or hereafter held by
Trustee or Beneficiary in such order and manner as Beneficiary, in its
discretion, may determine; every power or remedy given by any Loan Documents to
Trustee or Beneficiary, or to which Trustee or Beneficiary is otherwise
entitled, may be exercised, concurrently or independently, from time to time and
as often as may be deemed expedient by Beneficiary, and Trustee or Beneficiary
may pursue inconsistent remedies.
Section
5.7. Waiver of Stay,
Extension, Moratorium Laws; Equity of Redemption. To the maximum extent
permitted by law, Trustor shall not at any time insist upon, or plead, or in any
manner whatsoever claim or take any benefit or advantage of any applicable
present or future stay, extension or moratorium law, that may affect observance
or performance of the provisions of this Deed of Trust; nor claim, take or
insist upon any benefit or advantage of any present or future law providing for
the valuation or appraisal of the Mortgaged Property or any portion thereof
prior to any sale or sales thereof that may be made under or by virtue of Section 5.2; and
Trustor, to the maximum extent permitted by law, hereby waives all benefit or
advantage of any such law or laws. Trustor, for itself and all who may claim
under it, hereby waives, to the maximum extent permitted by law, any and all
rights and equities of redemption from sale under the power of sale created
hereunder or from sale under any foreclosure of this Deed of Trust and (if an
Event of Default shall have occurred) all notice or notices of seizure, and all
right to have the Mortgaged Property marshalled upon any foreclosure hereof.
Neither Trustee nor Beneficiary shall be obligated to pursue or exhaust their
rights or remedies as against any other part of the Mortgaged Property, and
Trustor hereby waives any right or claim of right to have Trustee or Beneficiary
proceed in any particular order.
Section
5.8. Waiver of
Homestead. Trustor hereby waives and renounces all homestead and
exemption rights provided for by the Constitution and the laws of the United
States and of any state, in and to the Mortgaged Property as against the
collection of the Loan Obligations, or any part thereof.
Section
5.9. No Assumption by
Beneficiary. Except as otherwise expressly set forth in any Loan
Document, Beneficiary will not be deemed in any manner to have assumed any
liabilities or obligations relating to the Mortgaged Property or any portion
thereof. Trustor
11
agrees
that the exercise by Beneficiary of one or more of its rights and remedies under
this Deed of Trust shall in no way be deemed or construed to make Beneficiary a
mortgagee-in-possession.
Section
5.10. Discontinuance
of Proceedings. If either Trustee or Beneficiary shall have proceeded to
enforce any right, power or remedy under this Deed of Trust by foreclosure,
power of sale, entry or otherwise, and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to Beneficiary, then in every such case, Trustor, Trustee and
Beneficiary shall be restored to their former positions and rights hereunder,
and all rights, powers and remedies of Trustee and Beneficiary shall continue as
if no such proceedings had occurred.
ARTICLE
6
TRUSTEE
Section
6.1. Trustee’s
Powers. At any time, or from time to time without liability therefor and
without notice, upon written request of Beneficiary and presentation of this
Deed of Trust and the Note secured hereby for endorsement, and without affecting
the personal liability of any person for payment of the indebtedness secured
hereby or the effect of this Deed of Trust upon the remainder of the Mortgaged
Property, Trustee may (a) reconvey any part of the Mortgaged Property, (b)
consent in writing to the making of any map or plat thereof, (c) join in
granting any easement thereon, or (d) join in any extension agreement or any
agreement subordinating the lien or charge hereof.
Section
6.2. Trustee’s
Fees. No fees or expenses shall become payable to Trustee under this Deed
of Trust other than those reasonable fees and expenses incurred by Trustee in
connection with the reconveyance of the Mortgaged Property pursuant to Section 6.3, or the
exercise by Trustee of any remedy permitted to it hereunder, under the Note or
under any of the other Loan Documents or at law or in equity. Trustor shall pay
all such reasonable fees and expenses incurred by Trustee and Trustee’s agents
and counsel in connection with the foregoing and all such costs, fees and
expenses shall be secured by this Deed of Trust.
Section
6.3. Full Reconveyance
by Trustee. To the extent Trustee’s signature is necessary on any full
reconveyance of this Deed of Trust then, upon written request of Beneficiary
stating that all sums secured hereby have been paid and upon surrender of this
Deed of Trust and the Note to Trustee for cancellation and retention (or
disposal in accordance with applicable law) and upon payment by Trustor of
Trustee’s fees, Trustee shall reconvey to Trustor, or to the person or persons
legally entitled thereto, without warranty, any portion of the Mortgaged
Property then held hereunder. The recitals in such reconveyance of any matters
or facts shall be conclusive proof of the truthfulness thereof. The grantee in
any reconveyance may be described as “the person or persons legally entitled
thereto”.
Section
6.4. Indemnity.
Trustor shall indemnify Trustee against all claims, actions, liabilities,
judgments, costs, attorneys’ fees or other charges of whatsoever kind or nature
made against or incurred by Trustee, and arising out of the performance by
Trustee of the duties of Trustee hereunder, other than those arising solely due
to Trustee’s gross negligence or wanton or willful
misconduct.
12
Section
6.5. Successor
Trustee. Trustee may resign in writing addressed to Beneficiary or be
removed at any time with or without cause by an instrument in writing duly
executed by Beneficiary and recorded in the office of the county recorder where
the Land is situated. In case of the death, resignation or removal of Trustee, a
successor Trustee may be appointed by Beneficiary without other formality than
an appointment and designation in writing unless otherwise required by
applicable law. Such appointment and designation will be full evidence of the
right and authority to make the same and of all facts therein recited, and upon
the making of any such appointment and designation, this Deed of Trust will vest
in the named successor trustee all the right, title and interest of Trustee in
the Mortgaged Property, and said successor will thereupon succeed to all the
rights, powers, privileges, immunities and duties hereby conferred upon Trustee;
provided, however, that Beneficiary may at its option, appoint and designate
several successor trustees, and in such manner, appoint and designate a
different successor trustee for each county wherein a portion of the Mortgaged
Property is located, as described in such written appointment and designation,
and upon the making of any such appointment and designation, this Deed of Trust
will vest in each such named successor trustee all of the right, title and
interest of Trustee in that portion of the Mortgaged Property ascribed to such
named successor trustee, and each such named successor trustee will thereupon
succeed to all the rights, powers, privileges, immunities and duties hereby
conferred upon Trustee in that portion of the Mortgaged Property ascribed to
such named successor trustee. All references herein to Trustee will be deemed to
refer to the trustee or trustees from time to time acting
hereunder.
ARTICLE
7
MISCELLANEOUS
Section
7.1. Captions.
The captions or headings at the beginning of each Article and Section hereof are
for the convenience of the parties hereto and are not a part of this Deed of
Trust.
Section
7.2. Amendments;
Waivers; Etc. This Deed of Trust cannot be modified, changed or
discharged except by an agreement in writing, duly acknowledged in proper form
for recording, signed by Trustor and Beneficiary.
Section
7.3. Successors and
Assigns. This Deed of Trust applies to, inures to the benefit of and
binds Trustor and Beneficiary and each of their respective successors and
assigns, and shall run with the Land.
Section
7.4. Notices.
All notices, demands, consents, requests or other communications that are
permitted or required to be given by any party to the other hereunder shall be
in writing and delivered or mailed to each party at the following
addresses:
|
(a)
|
If to the
Trustor:
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13
|
(b)
|
If to the
Trustee:
Fidelity
National Title Company
000
Xxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxxxx 00000
|
|
(c)
|
If to the
Beneficiary:
Xx
Xxxxxx LLC
c/x
Xxxxx & XxXxxxx LLP
000
Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention:
Xxxxxxx du Quesnay
With
an additional copy to:
Xx
Xxxxxx LLC
Mezzanine
Floor
Yamaha
Showroom
Sheikh
Zayed Road
Dubai,
United Arab Emirates
Attention:
Xxxxx xx Xxxxxx
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Section
7.5. Time of the
Essence. Time is of the essence with respect to each and every covenant,
agreement and obligation of Trustor under all Loan Documents.
Section
7.6. Applicable
Law. This Deed of Trust shall be governed by and construed in accordance
with the laws of the state in which the Mortgaged Property is
located.
Section
7.7. Limitation of
Interest. This Deed of Trust is subject to the limitations on the payment
of interest set forth in the Note.
Section
7.8. Severability. If any
term or provision of this Deed of Trust or the application thereof to any person
or circumstance shall to any extent be invalid or unenforceable, the remainder
of this Deed of Trust, or the application of such term or provision to persons
or circumstances other than those as to which it is invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Deed of Trust
shall be valid and enforceable to the maximum extent permitted by law. If any
portion of the Loan Obligations shall for any reason not be secured by a valid
and enforceable lien upon any part of the Mortgaged Property, then any payments
made in respect of the Loan Obligations (whether voluntary or under foreclosure
or other enforcement action or procedure or otherwise) shall, for purposes of
this Deed of Trust (except to the extent otherwise required by applicable law)
be deemed to be made (a) first, in respect of the portion of the Loan
Obligations not secured by the lien of this Deed of Trust, (b) second, in
respect of the portion of the Loan Obligations secured by the lien of this Deed
of Trust, but which lien is on less than all of the Mortgaged Property, and (c)
last, to the portion of
14
the Loan
Obligations secured by the lien of this Deed of Trust, and which lien is on all
of the Mortgaged Property.
Section
7.9. Reconveyance by
Beneficiary. Upon payment in full of the Loan Obligations, Beneficiary
(and Trustee, to the extent required by law to effect a full and proper
termination, release and reconveyance) shall release the lien of this Deed of
Trust, or upon the request of Trustor, and at Trustor’s expense, assign this
Deed of Trust without recourse to Trustor’s designee, or to the person or
persons legally entitled thereto, by an instrument duly acknowledged in proper
form for recording.
Section
7.10. WAIVER OF JURY
TRIAL. TRUSTOR, TRUSTEE AND BENEFICIARY HEREBY WAIVE ANY RIGHT EITHER MAY
HAVE TO A TRIAL BY JURY ON ANY CLAIM, COUNTERCLAIM, SETOFF, DEMAND, ACTION OR
CAUSE OF ACTION (A) ARISING OUT OF OR IN ANY WAY RELATED TO THIS DEED OF TRUST
OR THE LOAN, OR (B) IN ANY WAY CONNECTED WITH OR PERTAINING OR RELATED TO OR
INCIDENTAL TO ANY DEALINGS OF TRUSTOR, TRUSTEE AND/OR BENEFICIARY WITH RESPECT
TO ANY LOAN DOCUMENT OR THE EXERCISE OF ANY PARTY’S RIGHTS AND REMEDIES UNDER
THIS DEED OF TRUST OR OTHERWISE, OR THE CONDUCT OR THE RELATIONSHIP OF THE
PARTIES HERETO, IN ALL OF THE FOREGOING CASES WHETHER NOW EXISTING OR HEREAFTER
ARISING AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. EACH OF TRUSTOR,
TRUSTEE AND BENEFICIARY AGREE THAT ANY OF THEM MAY FILE A COPY OF THIS DEED OF
TRUST WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY, AND
BARGAINED AGREEMENT OF TRUSTOR, TRUSTEE AND BENEFICIARY IRREVOCABLY TO WAIVE ITS
RIGHTS TO TRIAL BY JURY AS AN INDUCEMENT TO BENEFICIARY TO MAKE THE LOAN, AND
THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY DISPUTE OR CONTROVERSY
WHATSOEVER (WHETHER OR NOT MODIFIED HEREIN) BETWEEN TRUSTOR, TRUSTEE AND/OR
BENEFICIARY SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A
JUDGE SITTING WITHOUT A JURY.
Section
7.11. Exhibits.
The information set forth on the cover, heading and recitals hereof, and the
Exhibits attached hereto, are hereby incorporated herein as a part of this Deed
of Trust with the same effect as if set forth in the body hereof.
ARTICLE
8
STATE-SPECIFIC
PROVISIONS
Section
8.1. Principles of
Construction. In the event of any inconsistencies between the terms and
conditions of this Article 8 and the
other terms and conditions of this Security Instrument, the terms and conditions
of this Article
8 shall control and be binding.
Section
8.2. Certain Matters
Relating to Property Located in the State of California. With respect to
the Mortgaged Property which is located in the State of California,
notwithstanding anything contained herein to the contrary (a) Trustor waives to
the extent permitted by law (i) the benefit of all laws now existing or that may
hereafter be enacted
15
providing
for any appraisal before sale of any portion of the Mortgaged Property, and (ii)
all rights of redemption, valuation, appraisal, stay of execution, foreclosure
of the liens hereby created, and (iii) all rights and remedies which Trustor may
have or be able to assert by reason of the laws of the State of California
pertaining to the rights and remedies of sureties; provided, however, nothing
contained herein shall be deemed to be a waiver of Trustor's rights under
Section 2924c of the California Civil Code.
[Signatures
Commence on the Following Page]
16
IN
WITNESS WHEREOF, this Deed of Trust, Assignment of Leases and Rents, Security
Agreement and Fixture Filing has been duly executed by Trustor as of the day and
year first above written.
TRUSTOR:
ZAP, a
California corporation
By:
/s/ Xxxxxx
Xxxxxxxxx
Name:
Xxxxxx
Xxxxxxxxx
Title:
CEO
Deed of
Trust, Assignment of Leases and Rents,
Security
Agreement and Fixture Filing
ACKNOWLEDGMENT
STATE OF
CALIFORNIA )
COUNTY
OF
)
On ______________________,
2008, before me, ______________________________________________________,
personally
appeared _____________________________________________________
personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS
my hand and official seal.
|
Signature
|
||
|
Notary
Public
|
(seal)
Deed of
Trust, Assignment of Leases and Rents,
Security
Agreement and Fixture Filing
Exhibit
A
LEGAL
DESCRIPTION OF MORTGAGED PROPERTY
Lot 388,
the West one-half of Lot 389, the Southerly 40 feet of Lot 397 and the Southerly
40 feet of the West one-half of Lot 398, all in Block 12 of the Map of Santa
Xxxx made by Xxxx X. Xxxxxxxx, and recorded December 7, 1854 in Book 9 of Deeds,
at Page 1, Sonoma County Records.
A-1
