SECURED SUPER-PRIORITY POST-PETITION CREDIT AGREEMENT dated as of August 1, 2017 among CAPITOL STATION 65, LLC as Debtor, and SIM T9 INVESTORS, LLC as Lender.
Exhibit 10.1
SECURED SUPER-PRIORITY POST-PETITION CREDIT AGREEMENT
dated as of August 1, 2017
among
CAPITOL STATION 65, LLC
as Debtor,
and
SIM T9 INVESTORS, LLC
as Lender.
ANNEX A DEFINITIONS
ANNEX B CLOSING CHECKLIST
ANNEX C REPORTING
ANNEX D NOTICE ADDRESSES
ANNEX E RELEASE PRICE SCHEDULE
SCHEDULES
SCHEDULE 1.3 BUDGET
SCHEDULE 3.3 INSURANCE POLICIES
SCHEDULE 3.5 EXISTING INDEBTEDNESS
EXHIBITS
EXHIBIT A FORM OF PROPOSED FINANCING ORDER
EXHIBIT B FORM OF DEED OF TRUST AND ASSIGNMENT OF RENTS IN FAVOR OF LENDER
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This SECURED SUPER-PRIORITY POST-PETITION CREDIT AGREEMENT (this “Agreement” or “Loan Agreement”), dated as of August 1, 2017 among Capitol Station 65, LLC (the “Debtor” or “Borrower”), currently pending in the United States Bankruptcy Court for the Eastern District of California, Sacramento Division (the “Bankruptcy Court”), Case No. 17-23627 (the “Bankruptcy Case”) and SIM T9 Investors, LLC (the “Lender”).
WHEREAS, on May 30, 2017, the Debtor filed the Bankruptcy Case.
1. AMOUNT AND TERMS OF CREDIT
(i) Revolving Credit Facility.
(i) Subject to the terms and conditions hereof, the Lender agrees to make available to the Debtor upon entry of the Financing Order, in substantially the form attached hereto as Exhibit A, the sum of Ten Million Dollars ($10,000,000), in one or more draws each in a minimum amount of Five Hundred Thousand Dollars ($500,000) upon not less than seven (7) days’ notice to Lender; provided that the aggregate disbursements under this Agreement shall not exceed $10,000,000 (the “Loan,” as further defined in Appendix A hereof), unless otherwise agreed to between the Debtor and the Lender and subject to court approval in the Bankruptcy Case. Lender also agrees that upon entry of any interim Financing Order (in a form acceptable to Lender), to make available to the Debtor such sums as approved by the Bankruptcy Court in any such interim Finance Order.
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(ii) The entire unpaid disbursed balance of the Loan and all other non-contingent obligations shall be immediately due and payable in full in immediately available funds on the Maturity Date, which is defined in section 6.1 hereof.
(i) Voluntary Repayment. The Debtor may at any time without premium or penalty repay the Loan.
(i) The Debtor shall pay interest to Lender on the outstanding amount of the Loan, in arrears on the Maturity Date (defined in section 6.1 hereof), at ten percentage points (10%), per annum.
(ii) If any payment on any Loan becomes due and payable on a day other than a business day, the maturity thereof will be extended to the next succeeding business day and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension.
(iii) All computations of interest shall be made by Lender on the basis of a 360-day year, in each case for the actual number of days occurring in the period for which such interest is payable.
(iv) So long as an Event of Default (as defined in Section 7.1) has occurred and is continuing under Section 7.1 and at the election of Lender, confirmed by written notice from Lender to the Debtor, the interest rates applicable to the Loan shall be increased by four percentage points (4%) per annum above the rates of interest otherwise applicable hereunder (the “Default Rate”), and all outstanding obligations under the Loan shall bear interest at the Default Rate applicable to such outstanding obligations. Interest at the Default Rate shall accrue from the initial date of such Event of Default until that Event of Default is cured or waived and shall be payable upon demand.
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2. CONDITIONS PRECEDENT
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3. REPRESENTATIONS AND WARRANTIES
To induce Lender to make the Loan, the Debtor makes the following representations and warranties to Lender, each and all of which shall survive the execution and delivery of this Agreement.
3.4 Secured, Super Priority Obligations.
(i) Subject to entry of the Financing Order (or any interim financing order), and disbursements of loan proceeds pursuant to the Financing Order (or interim Financing Order), the provisions of the Loan Agreement and the Orders are effective to create in favor of the Lender, a legal, valid and perfected Lien on all assets of the Debtor senior to all existing encumbrances on such assets other than real property taxes owing to Sacramento County up to the amount of $315,544.61, and a legal, valid and perfected security interest in all right, title and interest in the Collateral senior to all existing encumbrances on the Collateral other than real property taxes owing to Sacramento County up to the amount of $315,544.61, up to the amount disbursed by Lender. The amounts disbursed under the Financing Order, attached as Exhibit A, or any interim Financing Order are referred to herein collectively as the “Super-Priority Indebtedness.”
(ii) Subject to the Carve-Out, the Super-Priority Indebtedness shall have the status of an expense of administration under 11 U.S.C. §§ 503(b)(1) and 363(e), which shall have the priority of § 507(b), senior to all other expenses of administration under § 507(a)(1) and pursuant to 11 U.S.C. § 364(c)(1).
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3.5 Prepetition Secured Indebtedness. To the best of the Debtor’s knowledge, the prepetition secured indebtedness is listed accurately and fully on Schedule 3.5 attached hereto.
4. AFFIRMATIVE COVENANTS
The Debtor agrees that from and after the date hereof and until the Maturity Date (defined in section 6.1 hereof):
(i) Except as non-payment is permitted or payment is prohibited by the Bankruptcy Code or the Bankruptcy Court or subject to Section 4.1(ii), the Debtor shall pay and discharge or cause to be paid and discharged promptly all Charges payable by the bankruptcy estate, including (i) Charges imposed upon it, its income and profits, or any of its property (real, personal or mixed) and all Charges with respect to tax, social security and unemployment withholding with respect to its employees, (ii) lawful claims for labor, materials, supplies and services or otherwise, and (iii) all storage or rental charges payable to warehousemen or bailees, in each case, before any thereof shall become past due, except in the case of clauses (ii) and (iii) where the failure to pay or discharge such Charges would not result in a material breach of this Agreement, as determined in good faith by the Lender.
(ii) The Debtor may in good faith contest, by appropriate proceedings, the validity or amount of any Charges, taxes or claims described in Section 4.1(i); provided, that (i) adequate reserves with respect to such contest are maintained on its books; (ii) no Lien shall be imposed to secure payment of such Charges (other than payments to warehousemen and/or bailees) that is superior to any of the Liens securing the Loans and such contest is maintained and prosecuted continuously and with diligence and operates to suspend collection or enforcement of such Charges; (iii) none of the Collateral becomes subject to forfeiture or loss as a result of such contest; and (iv) it shall promptly pay or discharge such contested Charges, taxes or claims and all additional charges, interest, penalties and expenses, if any, and shall deliver to Lender evidence reasonably acceptable to Lender of such compliance, payment or discharge, if such contest is terminated or discontinued adversely to the Debtor or the conditions set forth in this Section 4.1(ii) are no longer met and (v) Lender has not advised the Debtor in writing that Lender reasonably believes that nonpayment or nondischarge thereof could have or result in a material breach in the Lender’s good faith judgment.
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4.4 Reporting. The Debtor shall timely deliver to the Lender all items set forth on Annex C.
4.5 Bankruptcy Court. The Lender and the Lender’s counsel shall receive all material pleadings, motions and other documents filed on behalf of the Debtor with the Bankruptcy Court.
5. NEGATIVE COVENANTS
The Debtor agrees that from and after the date hereof and until the Maturity Date (defined in section 6.1 hereof):
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6. TERM
Maturity. Unless terminated sooner by reason of acceleration or otherwise, payment of the Loan shall be due upon the financing arrangements contemplated hereby shall be in effect until the earlier of (i) twelve months from the date of entry of the Financing Order, (ii) or such earlier date (the “Termination Date”) upon which repayment is required due to the occurrence of an Event of Default (as defined below) (the “Maturity Date”). If there has been no Event of Default under the Loan at any time since loan commencement (including, without limitation, failure to pay any fees due under the Loan), then upon request made by Debtor to Lender not less than forty-five (45) days prior to the Maturity Date the Lender shall extend the term of the Loan, and the Maturity Date, for an additional twelve (12) months conditioned upon Lender receiving such evidence of the continued effect of Debtor’s representations and warranties made to Lender, without material exception.
7. EVENTS OF DEFAULT; RIGHTS AND REMEDIES
(i) The Debtor fails to make any payment of principal of, or interest on, or Fees owing in respect of the Loan when due and payable.
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(ii) The Debtor fails or neglects to perform, keep or observe any of the provisions of Sections 1.3 or 5.
(iii) Any representation or warranty herein or in any written statement, report, financial statement or certificate made or delivered to Lender is untrue or incorrect in any material respect as of the date when made or deemed made.
(iv) The Loan Agreement and the Financing Order (or any interim Financing Order) shall, for any reason, cease to create a valid Lien on the Collateral purported to be covered thereby or such Lien shall cease to be a perfected Lien having the priority provided herein pursuant to Section 364 of the Bankruptcy Code or the Debtor shall so allege in any pleading filed in any court shall, for any reason, cease to be valid and binding.
(v) Failure on the part of the Debtor to observe or perform duly in any material respect any other covenants or agreements on the part of the Debtor in this Agreement that continue unremedied for a period of 30 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Debtor by Lender (in accordance with Section 9.9 below); provided, however, that if the same is reasonably capable of being cured within 90 days, but cannot be reasonably cured within 30 days, the Debtor may cure such event of default by commencing in good faith to cure the default promptly after its receipt of such written notice and prosecuting the cure of such default to completion with diligence and continuity within a reasonable time thereafter, but in no event later than 90 days after its receipt of such written notice.
(vi) Any material non-compliance by the Debtor with any of the terms or provisions of the Financing Order or any interim Financing Order, including, without limitation, failure to comply with the Budget;
(vii) Entry of an order by the Bankruptcy Court converting the Bankruptcy Case to a case under Chapter 7 of the Bankruptcy Code or dismissing the Bankruptcy Case.
(viii) Application by the Debtor to the Bankruptcy Court or any other court of competent jurisdiction for an order authorizing the granting of any liens or claims senior to the Lender’s Lien and the Super Priority Indebtedness.
(ix) Filing by the Debtor of any plan or reorganization other than one incorporating the terms and conditions of this Agreement in their entirety and providing for payment in full of all obligations.
(x) The Orders are amended, stayed, vacated, or modified.
(xi) Filing of any challenge by the Debtor to the validity, priority, or extent of any Liens in favor of the Lender.
(xii) Any person holding a lien on the Collateral is granted relief from the automatic stay.
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(i) If any Event of Default has occurred and is continuing, Lender may increase the rate of interest applicable to the Loan to the Default Rate.
(ii) Subject to the Bankruptcy Court’s order, if any Event of Default has occurred and is continuing, Lender may: declare all or any portion of the Loan to be forthwith due and payable or exercise any rights and remedies provided to Lender under this Agreement or at law or equity, including all remedies provided under the Bankruptcy Code.
8. SUCCESSORS AND ASSIGNS
9. MISCELLANEOUS
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(A) any amendment, modification or waiver of, consent with respect to, or termination of, the Loan Agreement;
(B) any litigation, contest, dispute, suit, proceeding or action (whether instituted by Lender, the Debtor or any other Person and whether as a party, witness or otherwise) in any way relating to the Collateral, or any other agreement to be executed or delivered in connection herewith or therewith, including any litigation, contest, dispute, suit, case, proceeding or action, and any appeal or review thereof, in connection with a case commenced by or against the Debtor or Lender or any other Person that may be obligated to Lender by virtue of this Agreement; including any such litigation, contest, dispute, suit, proceeding or action arising in connection with any work-out or restructuring of the Loan during the pendency of one or more Events of Default;
(C) any attempt to enforce any remedies of Lender under this Agreement, including any such attempt to enforce any such remedies in the course of any work-out or restructuring of the Loan during the pendency of one or more Events of Default;
(D) efforts to (i) monitor the Loan or any of the other obligations, (ii) evaluate, observe or assess the Debtor or their respective affairs, and (iii) verify, protect, evaluate, assess, appraise, collect, sell, liquidate or otherwise dispose of any of the Collateral;
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including, as to each of clauses (A) through (D) above, all reasonable attorneys’ and other professional fees arising from such services and other advice, assistance or other representation, including those in connection with any appellate proceedings, and all expenses, costs, charges and other fees incurred by such counsel and others in connection with or relating to any of the events or actions described in this Section 9.4.
Lender shall provide documentation of such fees and expenses to Debtor, and the Debtor shall have ten (10) business days after receipt of said documentation to dispute the reasonableness or propriety of the claimed fees and expenses (“Review Period”). Any dispute between the Debtor and Lender concerning the reasonableness or propriety of the fees and costs will be determined by the Bankruptcy Court. The Debtor shall reimburse Lender for its fees and costs promptly after expiration of the Review Period unless an objection is timely made. If an objection is timely made, the Debtor shall reimburse Lender the amount determined by the Bankruptcy Court to be properly due to Lender under this paragraph.
(ii) Notwithstanding Section 9.3(i), Lender shall pay costs of compensation required by any broker it retains to negotiate the Indebtedness.
Lender’s failure, at any time or times, to require strict performance by the Debtor of any provision of this Agreement shall not waive, affect or diminish any right of Lender thereafter to demand strict compliance and performance herewith or therewith. Any suspension or waiver of an Event of Default shall not suspend, waive or affect any other Event of Default whether the same is prior or subsequent thereto and whether the same or of a different type. Subject to the provisions of Section 9.2, none of the undertakings, agreements, warranties, covenants and representations of Debtor contained in this Agreement and no Event of Default by the Debtor shall be deemed to have been suspended or waived by Lender, unless such waiver or suspension is by an instrument in writing signed by an officer of or other authorized employee of Lender and directed to the Debtor specifying such suspension or waiver.
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9.8 Governing Law. Except as otherwise expressly provided in this agreement, in all respects, including all matters of construction, validity and performance, this agreement and the obligations shall be governed by, and construed and enforced in accordance with, the internal laws of the State of California applicable to contracts made and performed in that state and any applicable laws of the United States of America. The Debtor and the Lender hereby consent and agree that the Bankruptcy Court shall have exclusive jurisdiction to hear and determine any claims or disputes pertaining to this agreement or to any matter arising out of or relating to this agreement.
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Upon sale of each parcel, the Loan available to be drawn upon by Debtor shall be permanently reduced by the Release Price Ratio reflected in ANNEX E for the parcel(s) sold multiplied by $10,000,000. Again, for example only, if the Debtor sold Parcel 4, the Loan commitment would be correspondingly be reduced by $646,651.27 (6.47% x $10,000,000 = $646,651.27). If the Debtor then sold Parcel 13, the Loan commitment would be reduced by an additional $1,072,363.36 (10.72% x $10,000,000 = $1,072,363.36).
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the date first written above.
BORROWER:
Capitol Station 65, LLC, a California limited liability company
By: Capitol Station Member, LLC, a Delaware limited liability company, its Manager
By: Capitol Station Holdings, LLC, a California limited liability company, its Manager
By: Township Nine Owner, LLC, a Delaware limited liability company, its Member
By: First Capital Real Estate Operating Partnership, L.P., a Delaware limited partnership, its Manager
By: First Capital Real Estate Trust, Incorporated, a Maryland corporation, its General Partner
By: | /s/ Xxxxxx Xxxxxx | |
Name: | Xxxxxx Xxxxxx | |
Title: | Chief Executive Officer, Treasurer, Secretary and Chairman of the Board of Directors of First Capital Real Estate Trust Incorporated |
LENDER:
SIM T9 INVESTORS, LLC
as Lender
By: | Serene Investment Management, LLC, Its Managing Member | |
By: | /s/ Xxxx Xxxxxxxx | |
Name: | Xxxx Xxxxxxxx | |
Title: | Managing Member of Serene Investment Management, LLC |
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ANNEX A
to
CREDIT AGREEMENT
Capitalized terms used in this Loan Agreement shall have (unless otherwise provided elsewhere in the Loan Documents) the following respective meanings, and all references to Sections, Exhibits, Schedules or Annexes in the following definitions shall refer to Sections, Exhibits, Schedules or Annexes of or to the Agreement:
“Avoidance Actions” means any and all claims arising under section 549 of the Bankruptcy Code.
“Carve-Out” means: (i) all fees required to be paid to the clerk of the Bankruptcy Court, any agent thereof and to the Office of the United States Trustee under section 1930(a) of title 28 of the United States Code plus interest at the statutory rate; (ii) fees and expenses incurred by a trustee under section 726(b) of the Bankruptcy Code in an amount not to exceed $50,000; (iii) to the extent allowed by the Bankruptcy Court, all claims for unpaid fees, costs and expenses (the “Professional Fees”) incurred by persons or firms retained by the Borrower or any official committee of unsecured creditors that may be appointed in the Debtors Cases (the “UCC”) whose retention is approved by the Bankruptcy Court pursuant to sections 327, 328 and 1103 of the Bankruptcy Code (collectively, the “Professional Persons”) that are: (A) based upon services rendered at any time prior to the occurrence of an Event of Default unless such Event of Default is waived or cured as provided in the DIP Loan Agreement, or (B) after the occurrence and during the continuation of an Event of Default, if any, in an aggregate amount not to exceed $200,000. As long as no Event of Default shall have occurred and be continuing, the Borrower shall be permitted to pay all fees, expenses, compensation and reimbursement of expenses allowed and payable, including under any order entered in the Cases establishing procedures for interim monthly compensation and reimbursement of Professional Fees, or sections 330 and 331 of the Bankruptcy Code, as the same may be due and payable, and the same shall not reduce the Carve-Out. In the event the Carve-Out is reduced by any amount during an Event of Default, upon the effectiveness of a cure of such Event of Default, the Carve Out shall be increased by such amount. Nothing herein shall be construed to impair the ability of any party to object to the fees, expenses, reimbursement or compensation described in clauses (i), (ii) or (iii) above, on any grounds.
“Charges” means all federal, state, county, city, municipal, local, foreign or other governmental taxes, levies, assessments, charges, liens, claims or encumbrances upon or relating to (a) the Collateral or (b) the obligations.
“Closing Checklist” means the schedule, including all appendices, exhibits or schedules thereto, listing certain documents and information to be delivered in connection with the Agreement, the other Loan Documents and the transactions contemplated thereunder, substantially in the form attached hereto as Annex B.
A-1 |
“Collateral” means all property of this bankruptcy estate, real or personal, tangible or intangible, and Avoidance Actions now existing or hereafter acquired, and all proceeds therefrom; provided, however, that claims arising under sections 544, 545, 547, 548 of the Bankruptcy Code and under similar state laws are excepted from the Lender’s Collateral and do not secure the Loan.
“Environmental Laws” means all applicable federal, state, local and foreign laws, statutes, ordinances, codes, rules, standards and regulations, now or hereafter in effect, and any applicable judicial or administrative interpretation thereof, including any applicable judicial or administrative order, consent decree, order or judgment, imposing liability or standards of conduct for or relating to the regulation and protection of human health, safety, the environment and natural resources (including ambient air, surface water, groundwater, wetlands, land surface or subsurface strata, wildlife, aquatic species and vegetation). Environmental Laws include the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. §§ 9601 et seq.) (“CERCLA”); the Hazardous Materials Transportation Authorization Act of 1994 (49 U.S.C. §§ 5101 et seq.); the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. §§ 136 et seq.); the Solid Waste Disposal Act (42 U.S.C. §§ 6901 et seq.); the Toxic Substance Control Act (15 U.S.C. §§ 2601 et seq.); the Clean Air Act (42 U.S.C. §§ 7401 et seq.); the Federal Water Pollution Control Act (33 U.S.C. §§ 1251 et seq.); the Occupational Safety and Health Act (29 U.S.C. §§ 651 et seq.); and the Safe Drinking Water Act (42 U.S.C. §§ 300(f) et seq.), and any and all regulations promulgated thereunder, and all analogous state, local and foreign counterparts or equivalents and any transfer of ownership notification or approval statutes.
“Environmental Liabilities” means, with respect to any Person, all liabilities, obligations, responsibilities, response, remedial and removal costs, investigation and feasibility study costs, capital costs, operation and maintenance costs, losses, damages, punitive damages, property damages, natural resource damages, consequential damages, treble damages, costs and expenses (including all reasonable fees, disbursements and expenses of counsel, experts and consultants), fines, penalties, sanctions and interest incurred as a result of or related to any claim, suit, action, investigation, proceeding or demand by any Person, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law, including any arising under or related to any Environmental Laws, Environmental Permits, or in connection with any Release or threatened Release or presence of a Hazardous Material whether on, at, in, under, from or about or in the vicinity of any real or personal property.
“Environmental Permits” means all permits, licenses, authorizations, certificates, approvals or registrations required by any governmental authority under any Environmental Laws.
A-2 |
“Hazardous Material” means any substance, material or waste that is regulated by, or forms the basis of liability now or hereafter under, any Environmental Laws, including any material or substance that is (a) defined as a “solid waste,” “hazardous waste,” “hazardous material,” “hazardous substance,” “extremely hazardous waste,” “restricted hazardous waste,” “pollutant,” “contaminant,” “hazardous constituent,” “special waste,” “toxic substance” or other similar term or phrase under any Environmental Laws, or (b) petroleum or any fraction or by-product thereof, asbestos, polychlorinated biphenyls (PCB’s), or any radioactive substance.
“Indebtedness” means, with respect to any Person, without duplication, (a) all indebtedness of such Person for borrowed money or for the deferred purchase price of property and (b) all Indebtedness referred to above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property or other assets (including accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness, and (i) the obligations.
“Lien” means any mortgage or deed of trust, pledge, hypothecation, assignment, deposit arrangement, lien, charge, claim, security interest, easement or encumbrance, or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any lease or title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of, or agreement to give, any financing statement perfecting a security interest under the Code, as defined herein in Appendix A or comparable law of any jurisdiction)
“Loan” means all loans, advances, debts, liabilities and obligations for the performance of covenants, tasks or duties or for payment of monetary amounts (whether or not such performance is then required or contingent, or such amounts are liquidated or determinable) owing by the Debtor on behalf of the Debtor to Lender, and all covenants and duties regarding such amounts, of any kind or nature, present or future, whether or not evidenced by any note, agreement, or other instrument, arising under the Agreement.
“Permitted Encumbrances” means the following encumbrances: (a) Liens for taxes or assessments or other governmental Charges not yet due and payable or which are being contested in accordance with Section 4.2(b); (b) pledges or deposits of money securing statutory obligations under workmen’s compensation, unemployment insurance, social security or public liability laws or similar legislation; (c) pledges or deposits of money securing bids, tenders, contracts (other than contracts for the payment of money) or leases to which Debtor is a party as lessee made in the ordinary course of business; (d) inchoate and unperfected workers’, mechanics’ or similar liens arising in the ordinary course of business; (e) deposits securing, or in lieu of, surety, appeal or customs bonds in proceedings to which Debtor is a party; (f) zoning restrictions, easements, licenses, or other restrictions on the use of the Real Property or other minor irregularities in title (including leasehold title) thereto, so long as the same do not materially impair the use, value, or marketability of such Real Property; (g) presently existing or hereafter created Liens in favor of Lender; and (h) subject to entry of the Orders, presently existing or hereafter created Liens in favor of the prepetition lender, which Liens are subordinate to the Liens in favor of the Lender.
A-3 |
“Person” means any individual, sole proprietorship, partnership, joint venture, trust, unincorporated organization, association, corporation, limited liability company, institution, public benefit corporation, other entity or government (whether federal, state, county, city, municipal, local, foreign, or otherwise, including any instrumentality, division, agency, body or department thereof).
Wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and the plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, feminine and neuter genders. The words “including”, “includes” and “include” shall be deemed to be followed by the words “without limitation”; the word “or” is not exclusive; references to Persons include their respective successors and assigns (to the extent and only to the extent permitted by the Agreement) or, in the case of governmental Persons, Persons succeeding to the relevant functions of such Persons; and all references to statutes and related regulations shall include any amendments of the same and any successor statutes and regulations. Whenever any provision in the Agreement refers to the knowledge (or an analogous phrase) of the Debtor , such words are intended to signify that he or it has actual knowledge or awareness of a particular fact or circumstance or, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance.
A-4 |
ANNEX B
to
In addition to, and not in limitation of, the conditions described in Section 2.1 of the Agreement, the following items must be received by Lender in form and substance satisfactory to Lender on or prior to the Closing Date (each capitalized term used but not otherwise defined herein shall have the meaning ascribed thereto in Annex A to the Agreement), unless such requirement is waived in writing by the Lender:
A. Appendices. All Appendices to the Agreement, in form and substance satisfactory to Agent. .
B-1 |
ANNEX C
to
CREDIT AGREEMENT
The Debtor shall deliver or cause to be delivered to Lender, as indicated, the following:
C-1 |
ANNEX D
If to Lender:
Serene Investment Management, LLC
c/o 366 Development, LLC
Attn: Xxxx Xxxxxxxx
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
(Tel.) 000-000-0000
Email: xxxx.xxxxxxxx@000xxxxxxxxxxx.xxx
With copy to:
Xxxxx Xxxxxxxxx
Xxxxxxxxx Law Group
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
(Tel.) 000-000-0000
Email: xxxxx.xxxxxxxxx@xxxxxxxxxxxxxxxxx.xxx
If to Debtor:
Xxxxxxx Xxxxxxx 00, XXX
x/x Xxxxx Xxxxxxx Xxxx Xxxxxx Trust, Inc.
Attn: Xxxxxx Xxxxxx
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
(Tel.) 000-000-0000
Email: x@xxxxxxxxxxxxxx.xxx
With copy to:
Xxxx Xxxx/Xxxxx X. Xxxxxxx
Xxxx Xxxx LLP
000 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
(Tel.) 000 000-0000
Email: xxxxx@xxxxxxxx.xxx
xxxxxxxx@xxxxxxxx.xxx
D-1 |
ANNEX E
to
CREDIT AGREEMENT
RELEASE PRICE SCHEDULE
TMParcel No | Lot Size (Net Developable Acres) | Appraised Value | Release Price Ratio | |||||||||
1 | 5.08 | $ | 12,590,000 | 19.38 | % | |||||||
3A | 0.94 | $ | 2,589,052 | 3.99 | % | |||||||
3B | 1.38 | $ | 3,800,948 | 5.85 | % | |||||||
4 | 1.14 | $ | 4,200,000 | 6.47 | % | |||||||
5A | 1.02 | $ | 3,230,000 | 4.97 | % | |||||||
5B | 2.13 | $ | 2,425,000 | 3.73 | % | |||||||
6A | 1.09 | $ | 1,861,536 | 2.87 | % | |||||||
6B | 1.4 | $ | 2,390,964 | 3.68 | % | |||||||
7A | 1.06 | $ | 1,135,149 | 1.75 | % | |||||||
7B | 0.95 | $ | 1,017,351 | 1.57 | % | |||||||
8A | 0.84 | $ | 1,008,000 | 1.55 | % | |||||||
8B | 0.82 | $ | 984,000 | 1.52 | % | |||||||
10A | 0.86 | $ | 2,243,093 | 3.45 | % | |||||||
10B | 1.18 | $ | 3,069,907 | 4.73 | % | |||||||
12A | 0.85 | $ | 1,301,235 | 2.00 | % | |||||||
12B | 0.79 | $ | 1,206,765 | 1.86 | % | |||||||
13 | 2.44 | $ | 6,965,000 | 10.72 | % | |||||||
14 | 1.94 | $ | 4,750,000 | 7.31 | % | |||||||
15A | 0.51 | $ | 481,800 | 0.74 | % | |||||||
15B | 0.49 | $ | 462,906 | 0.71 | % | |||||||
15C | 0.7 | $ | 661,294 | 1.02 | % | |||||||
16A | 0.55 | $ | 608,418 | 0.94 | % | |||||||
16B | 0.49 | $ | 542,045 | 0.83 | % | |||||||
16C | 0.73 | $ | 807,537 | 1.24 | % | |||||||
17 | 2.24 | $ | 4,618,000 | 7.11 | % | |||||||
31.62 | $ | 64,950,000.00 | 100 | % |
E-1 |
Schedule 1.3
to
CREDIT AGREEMENT
BUDGET
[omitted from service copy, see Exh. C to Motion]
1 |
Schedule 3.3
to
CREDIT AGREEMENT
INSURANCE POLICIES
Type of Coverage | Carrier | Policy No. | Exp. Date | |||
Casualty/Property Replacement | Great American Insurance Co. | MAC E215869 00 00 | 3/1/2018 | |||
General Liability | Associated Industries Insurance Co. | AES1044535 00 | 1/25/2018 | |||
Excess Liability | Aspen American Insurance Co. | CX0057517 | 1/25/2018 | |||
Worker’s Compensation | N/A | |||||
Disability | N/A |
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Schedule 3.5
to
CREDIT AGREEMENT
EXISTING LIENS
Lienholder | Indebtedness (approx. as of 5/30/2017 | |||
Sacramento County, the City of Sacramento, the American River Flood Control District, and/or the Xxxxxxxx Boulevard Assessment District for general and/or special tax assessments on the Township Nine parcels1 | $ | 315,000.00 | ||
Township Nine Avenue, LLC (assignee of COPIA Lending, LLC) | $ | 43,739,412.00 (amount disputed) | ||
The Growing Company, Inc. | $ | 20,349.00 | ||
Xxxxxxxx Construction | $ | 228,462.38 | ||
Studebaker Xxxxx Elec., Inc. | $ | 33,343.41 |
1 | The APNs and street addresses for the relevant parcels comprising Township Nine are: 001-0020-056/601 Vine Street; 001-0020-057/649 Vine Street; 001-0020-058/640 Vine Street; 001-0020-060/601 Township 9 Ave.; 001-0020-061/641 Township 9 Ave.; 001-0020-062/629 Xxxxxxxx Blvd; 001-0020-063/503 Riverine Wy; 000-0000-000/611 Riverine Wy; 000-0000-000/424 X. 0xx Xx.; 001-0020-067/819 N. 7th St. |
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EXHIBIT A
to
CREDIT AGREEMENT
FINANCING ORDER
[omitted from service copy, see Exh. A to Motion]
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EXHIBIT B
to
CREDIT AGREEMENT
DEED OF TRUST
[begins on next page]
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Recording Requested By
And When Recorded Mail To:
SERENE INVESTMENT MANAGEMENT, LLC
c/o 366 Development LLC
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING WITH ASSIGNMENT OF RENTS AND LEASES
THIS DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING WITH ASSIGNMENT OF RENTS AND LEASES (this “Deed of Trust”) is made and given as of August ____2017, by CAPITOL STATION 65, a California limited liability company, as (“Trustor”), having its principal place of business at 0000 Xxxx Xxxxxx Xxx, Xxx. 000, Xxxx Xxxxx, Xxxxxxxxxx 00000-0000, to FIDELITY NATIONAL TITLE COMPANY, (the “Trustee”), having an address at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (Attention Xxxx Xxx) , for the benefit of SERENE INVESTMENT MANAGEMENT, LLC, a California limited liability company (“Beneficiary”), having its principal place of business at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000
I. GRANTS AND OBLIGATIONS SECURED
A. Grants.
1.01 LAND. Trustor hereby irrevocably grants, transfers and assigns to Trustee, in trust, with power of sale and right of entry and possession, all right, title and interest of Trustor, now owned or hereafter acquired, in and to that certain real property situated in the City of Sacramento, County of Sacramento, State of California and more particularly described on Exhibit A attached hereto and incorporated herein by reference (the “Land”), together with all right, title and interest of Trustor in and to:
(a) Improvements. All buildings and other improvements now or hereafter located on the Land, all water and water rights (whether riparian, appropriative, or otherwise, and whether or not appurtenant), pumps and pumping stations used in connection therewith and all shares of stock evidencing the same, all machinery, equipment, appliances, furnishings, inventory, fixtures and other property used or usable in connection with the Land and the improvements thereon, including, but not limited to, all storage tanks and pipelines, all gas, electric, heating, cooling, air conditioning, refrigeration and plumbing fixtures and equipment, which have been or may hereafter be attached or affixed in any manner to any building now or hereafter located on the Land (the “Improvements”);
(b) Rights of Way. All the rights, rights of way, easements, licenses, profits, privileges, tenements, hereditaments and appurtenances, now or hereafter in any way appertaining and belonging to or used in connection with the Land and/or the Improvements, and any part thereof or as a means of access thereto, including, but not limited to, any claim at law or in equity, and any after acquired title and reversion in or to each and every part of all streets, roads, highways and alleys adjacent to and adjoining the same;
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(c) Income. All rentals, earnings, income, deposits, security deposits, receipts, royalties, revenues, issues and profits which, after the date hereof, and while any portion of the indebtedness and obligations secured hereby remain outstanding, may accrue from the Land and/or the Improvements and any part thereof, subject to a license in favor of Trustor to collect and use the same prior to an Event of Default (as defined below) as provided herein;
(d) Leasehold Estates. All leasehold estates and all leases and subleases covering the Land and/or the Improvements or any portion thereof or interest therein now or hereafter existing or entered into; and
(e) Deposits. All deposits made with or other security given to utility companies by Trustor with respect to the Land and/or the Improvements, and all advance payments of insurance premiums made by Trustor with respect thereto and claims or demands relating to insurance.
Any of the foregoing arising or acquired by Trustor on and after the date hereof, including without limitation the property described in subparagraphs (a), (b), (c), (d) and (e) of this Paragraph 1.01 are collectively defined hereinafter as the “Property.”
1.02 COLLATERAL. Trustor hereby grants a security interest to Beneficiary in all of Trustor’s right, title and interest in and to the Property (to the extent such Property is deemed to be personal property under the Uniform Commercial Code from time to time in effect in the State of California) and the following described property and any and all products and proceeds thereof, now owned or hereafter acquired by Trustor (sometimes all of such being collectively referred to herein as the “Collateral”), and this Deed of Trust shall accordingly constitute a security agreement as defined in the California Uniform Commercial Code:
(a) Tangible Property. All existing and future goods and tangible personal property located on the Property or wherever located and used or usable in connection with the use, operation or occupancy of the Property or in construction of the Improvements, including, but not limited to, all appliances, furniture and furnishings, fittings, inventory, materials, supplies, equipment and fixtures, and all building material, supplies, and equipment now or hereafter delivered to the Property and installed or used or intended to be installed or used therein whether stored on the Property or elsewhere; and all renewals or replacements thereof or articles in substitution thereof;
(b) General Intangibles. All general intangibles relating to design, development, operation, management and use of the Property or construction of the Improvements, including, but not limited to: (i) all names under which or by which the Property or the Improvements may at any time be operated or known, all rights to carry on business under any such names or any variant thereof, and all goodwill in any way relating to the Property; (ii) all permits, licenses, authorizations, variances, land use entitlements, approvals and consents issued or obtained in connection with the construction of the Improvements; (iii) all permits, licenses, approvals, consents, authorizations, franchises and agreements issued or obtained in connection with the use, occupancy or operation of the Property; (iv) all materials prepared for filing or filed with any governmental agency in connection with the Property or the Improvements; (v) all rights under any contract in connection with the development, design, use, operation, management and construction of the Property; and (vi) all payment intangibles;
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(c) Contracts. All construction, service, engineering, consulting, architectural and other similar contracts of any nature (including, without limitation, those of any general contractors, subcontractors and materialmen), as such may be modified, amended or supplemented from time to time, concerning the design, construction, management, operation, occupancy, use, and/or disposition of any portion of or all of the Property;
(d) Leases. All leases for space in the Improvements to the extent such leases are deemed to be personal property;
(e) Plans and Reports. All architectural drawings, plans, specifications, soil tests and reports, feasibility studies, appraisals, engineering reports and similar materials relating to any portion of or all of the Property;
(f) Sureties. All payment and performance bonds or guarantees and any and all modifications and extensions thereof relating to the Property;
(g) Payments. All reserves, deferred payments, deposits, refunds, cost savings, letters of credit and payments of any kind relating to the construction, design, development, operation, occupancy, use and disposition of all or any portion of the Property;
(h) Financing Commitments. All proceeds of any commitment by any lender to extend permanent or construction financing to Trustor relating to the Property;
(i) Claims. All proceeds and claims arising on account of any damage to or taking of the Property or any part thereof, and all causes of action and recoveries for any loss or diminution in the value of the Property;
(j) Insurance. All policies of, and proceeds resulting from, insurance relating to the Property or any of the above collateral, and any and all riders, amendments, extensions, renewals, supplements or extensions thereof, and all proceeds thereof;
(k) Stock. All shares of stock or other evidence of ownership of any part of the Property that is owned by Trustor in common with others, including all water stock relating to the Property, if any, and all documents or rights of membership in any owners’ or members’ association or similar group having responsibility for managing or operating any part of the Property;
(l) Proceeds. All proceeds, whether cash, promissory notes, contract rights or otherwise, of the sale or other disposition of all or any part of the estate of Trustor pertaining to the Property now or hereafter existing thereon;
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(m) Sale Contracts. All sales contracts, escrow agreements and broker’s agreements concerning the sale of any or all of the Property;
including, without limiting the above items, all Accounts, Chattel Paper, Deposit Accounts, Documents, General Intangibles, Goods, Instruments, Inventory, Investment Properties, Letter of Credit Rights, Money, Payment Intangibles, Proceeds and Supporting Obligations as those terms are defined in the Uniform Commercial Code from time to time in effect in the State of California (“California Commercial Code”).
The personal property in which Beneficiary has a security interest includes goods which are or shall become fixtures on the Property, other than any trade fixtures and personal property owned by tenants or occupants other than the Trustor or persons owned or controlled by the Trustor who occupy all or a portion of the Property pursuant to leases or occupancy agreements. This Deed of Trust is intended to serve as a fixture filing pursuant to the terms of Sections 9334 and 9502 of the California Commercial Code. This filing is to be recorded in the real estate records of the county in which the Property is located. In that regard, the following information is provided:
Name of Debtor: | Capitol Station 65, LLC |
Address of Debtor: | See Paragraph 6.11 hereof |
Name of Secured Party: | Serene Capital Management, LLC |
Address of Secured Party: | See Paragraph 6.11 hereof |
1.03 MINERAL RIGHTS. Trustor hereby assigns and transfers to Beneficiary all damages, royalties and revenue of every kind, nature and description whatsoever that Trustor may be entitled to receive from any person or entity owning or having or hereafter acquiring a right to the oil, gas or mineral rights and reservations of the Property, with the right, but not obligation, in Beneficiary: (a) to receive and receipt therefor, and apply the same to the indebtedness and obligations secured hereby; and (b) the right, but not obligation, to demand, xxx for and recover any such payments; provided, however, so long as there shall exist no Event of Default, Trustor shall have the right to collect and retain such payments and exercise all rights in connection therewith.
B. | Obligations Secured. |
1.04 The grants, assignments and transfers made in Paragraphs 1.01, 1.02 and 1.03 and Article II hereof are given for the purpose of securing, in such order of priority as Beneficiary may determine:
(a) Payment of the indebtedness evidenced by the Secured Super Priority Post-Petition Credit Agreement of even date herewith and any renewals, extensions, modifications or amendments thereof, in the stated principal amount of Ten Million Dollars ($10,000,000) (the “Loan Agreement”), executed by Trustor and payable to Beneficiary, together with interest thereon and late charges as provided by the Loan Agreement, which is made a part hereof by reference;
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(b) Payment of such further sums as Trustor or any successor in ownership hereafter may borrow from Beneficiary when evidenced by a note or notes, or other instrument, reciting it is so secured, payable to Beneficiary or order and made by Trustor or any successor in ownership, and all renewals, extensions, modifications or amendments of such note or notes;
(c) Payment and performance of each and every obligation of Trustor contained herein;
(d) Payment and performance of each and every other obligation of Trustor contained in the Credit Agreement; and
(e) Performance of each agreement of Trustor contained in any other agreement which is for the purpose of further securing any indebtedness or obligation secured hereby, except for (i) any separate environmental indemnity agreement and (ii) any separate guaranty, which documents expressly are not secured by this Deed of Trust. Upon written request from Beneficiary, Trustor shall deliver an executed promissory note to Beneficiary further evidencing the indebtedness set forth in the Loan Agreement.
II. | COVENANTS OF TRUSTOR |
A. | Condition and Operation of Property. |
2.01 MAINTENANCE AND PRESERVATION. Trustor: (a) shall maintain, keep and preserve the Property in good condition and repair; (b) shall complete promptly and in a good and workmanlike manner any Improvement which may be now or hereafter constructed on the Property and, provided Beneficiary makes insurance proceeds, if any, available to Trustor pursuant to Paragraph 2.05 below, promptly restore in like manner any Improvement which may be damaged or destroyed thereon from any cause whatsoever and, subject to Paragraph 2.07 below, pay when due all valid claims for labor performed and materials furnished therefor; (c) shall not commit or permit any waste or deterioration of the Property; (d) shall keep and maintain abutting sidewalks, alleys, roads and parking areas in good and neat order and repair to the extent owned by Trustor or to the extent Trustor is otherwise so required by applicable law; (e) shall not take (or fail to take) any action, which if taken (or not so taken) would increase in any way the risk of fire or other hazard occurring to or affecting the Property or otherwise would materially impair the security of Beneficiary in the Property; (f) shall not abandon the Property or any portion thereof or leave the Property unprotected, unguarded, vacant or deserted; (g) shall not, without the prior written consent of Beneficiary, initiate, join in or consent to any change in any zoning ordinance, general plan, specific plan, private restrictive covenant or other public or private restriction limiting the uses which may be made of the Property by Trustor or by the owner thereof; and (h) shall secure and maintain in full force and effect all permits necessary for the use, occupancy and operation of the Property.
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2.02 COMPLIANCE WITH LAWS. Trustor shall comply with all decisions, statutes, ordinances, rulings, directions, rules, regulations, orders, writs, decrees, injunctions, permits, certificates, or other requirements of any court or other governmental authority (collectively “Legal Requirement”) now or hereafter affecting the Property or any part thereof or requiring any alteration or improvement to be made thereon or thereto. Trustor shall not commit, suffer or permit any act to be done in, upon or to the Property or any part thereof in violation of any such Legal Requirement. Notwithstanding the foregoing, Trustor shall have the right to contest the imposition of any Legal Requirement affecting the Property provided that (a) such contest is made in good faith and diligently prosecuted by Trustor to completion; (b) no action for the sale of, or the foreclosure of any lien against, the Property arising from or relating to such Legal Requirement shall have been commenced, or if such action shall have been commenced, Trustor shall have provided a good and sufficient undertaking as may be required or permitted by law to accomplish a stay of any such sale or foreclosure; and (c) such contest shall not impair the security of Beneficiary in the Property or adversely affect the operation of the Property or Trustor’s business.
2.03 BOOKS AND RECORDS. Trustor shall maintain, or cause to be maintained, in the State of California, proper and accurate books, records and accounts reflecting all items of income and expense in connection with the operation of the Property or in connection with any services, equipment or furnishings provided in connection with the operation of the Property. Upon three (3) days prior written notice to Trustor, Beneficiary, or its designee, shall have the right from time to time during normal business hours to examine such books, records and accounts and to make copies or extracts therefrom.
2.04 INSURANCE. Trustor shall at all times maintain insurance policies that comply with the insurance requirements of the Loan Agreement. The Trustor hereby irrevocably appoints the Beneficiary as its true and lawful attorney-in-fact, with full power of substitution to assign any policy in the event of the transfer of the Property to the Trustee pursuant to this Deed of Trust.
2.05 CASUALTY; CASUALTY NOTICE; INSURANCE PROCEEDS. After the happening of any casualty or event insured against under Section 2.04 or the Loan Agreement, Trustor shall give prompt written notice thereof to the Beneficiary. The proceeds of any casualty insurance and rent loss insurance shall be applied in accordance with the Loan Agreement.
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2.06 ASSIGNMENT OF PROCEEDS. Trustor hereby absolutely and unconditionally assigns to Beneficiary all insurance proceeds which it may be entitled to receive and such proceeds shall be delivered to and held by Beneficiary to be applied to Beneficiary’s expenses in settling, prosecuting or defending any insurance claim, and then to the restoration of any portion of the Property and/or the Collateral that has been damaged or destroyed to the same condition, character and value as existed prior to such damage or destruction so long as the following conditions are satisfied: (a) no Event of Default shall have occurred; (b) Beneficiary’s security is not impaired; and (c) in the event that in Beneficiary’s reasonable judgment the insurance proceeds are not sufficient to accomplish restoration, Trustor deposits with Beneficiary, within fifteen (15) days of demand by Beneficiary, the additional amounts necessary to accomplish restoration. Proceeds disbursed for restoration will be released to Trustor pursuant to disbursement procedures reasonably determined by Beneficiary in accordance with customary construction loan disbursement procedures. In the event any of the conditions set forth above are not satisfied, Beneficiary shall have the option to either apply the insurance proceeds upon any indebtedness secured hereby (but the same shall not be deemed a pre-payment) in such order as Beneficiary may determine or release such proceeds to Trustor without such release being deemed a payment of any indebtedness secured hereby, rather than to apply such proceeds to the restoration of the Property and/or the Collateral. 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. If the Property and/or the Collateral is restored at a cost less than the available insurance proceeds, then the excess may, at Beneficiary’s election, be applied by Beneficiary to any indebtedness secured hereby in such order as Beneficiary may determine (but the same shall not be deemed a pre-payment). Following an Event of Default, Beneficiary may commence, appear in, defend or prosecute any assigned claim or action, and may adjust, compromise, settle and collect all claims, proceeds and awards assigned to Beneficiary, but shall not be responsible for any failure to collect any claim, proceeds or award, regardless of the cause of the failure.
B. | Payments. |
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(b) Subject to the provisions of Paragraph 2.09(c), Trustor shall deliver to Beneficiary within thirty (30) days after the date upon which any such Imposition is due and payable by Trustor, official receipts of the appropriate taxing authority, or other proof reasonably satisfactory to Beneficiary, evidencing the payment thereof.
(c) Trustor shall have the right before any delinquency occurs to or object to the amount or validity of any such Imposition by appropriate legal proceedings, but this shall not be deemed or construed in any way as relieving, modifying or extending Trustor’s covenant to pay any such Imposition at the time and in the manner provided herein, unless Trustor has given prior written notice to Beneficiary of Trustor’s intent to so contest or object to an Imposition, and unless (i) Trustor shall demonstrate to Beneficiary’s reasonable satisfaction that the legal proceedings shall conclusively operate to prevent the sale of the Property, or any part thereof, to satisfy such Imposition prior to final determination of such proceedings; or (ii) Trustor shall demonstrate to Beneficiary’s reasonable satisfaction that Trustor has provided a good and sufficient undertaking as may be required or permitted by law to accomplish a stay of any such sale.
(d) All Impositions accruing up to and including May 30, 2017 shall be paid pursuant to the terms of Trustor’s anticipated Chapter 11 plan of reorganization (“Plan”).
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Lender shall provide documentation of such fees and expenses to Debtor, and the Debtor shall have ten (10) business days after receipt of said documentation to dispute the reasonableness or propriety of the claimed fees and expenses (“Review Period”). Any dispute between the Debtor and Lender concerning the reasonableness or propriety of the fees and costs will be determined by the Bankruptcy Court. The Debtor shall reimburse Lender for its fees and costs promptly after expiration of the Review Period unless an objection is timely made. If an objection is timely made, the Debtor shall reimburse Lender the amount determined by the Bankruptcy Court to be properly due to Lender under this paragraph.
C. | Condemnation; Eminent Xxxxx. |
2.14 If the Property, or any part thereof, is taken or damaged by reason of any public improvement or condemnation proceeding, or in any other similar manner, Beneficiary shall be entitled to all compensation, awards and other payments or relief therefor to which Trustor shall be entitled, and shall be entitled at its option, following an Event of Default, to commence, appear in and prosecute in its own name any action or proceeding or to make any compromise or settlement in connection with such taking or damage to the extent of the interests of Trustor therein, but Beneficiary shall not be responsible for any failure to collect any claim or award, regardless of the cause of the failure, except to the extent caused by the gross negligence or willful misconduct of Beneficiary. Trustor hereby absolutely and unconditionally assigns to Beneficiary all such compensation, awards, damages, rights of action and proceeds to which Trustor shall be entitled (the “Proceeds”) and Beneficiary shall, after deducting therefrom all its reasonable out-of-pocket expenses, including, but not limited to attorneys’ fees, apply or release the Proceeds with the same effect and as provided in Paragraph 2.06 above with respect to disposition of insurance proceeds. Trustor agrees to execute such further assignments of the Proceeds as Beneficiary or Trustee may reasonably require.
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D. | Rents and Leases. |
E. | Other Rights and Obligations. |
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(a) Take action in such manner and to such extent as either may deem necessary to protect the security hereof, Beneficiary and Trustee being authorized to enter upon and take possession of the Property and/or the Collateral for such purposes;
(b) Commence, appear in and/or defend any action or proceedings purporting to affect the security hereof, and/or any additional or other security therefor, the interests, rights, powers and/or duties of Trustee and/or Beneficiary hereunder, whether brought by or against Trustor, Trustee or Beneficiary;
(c) Pay, purchase, contest or compromise any claim, debt, lien, charge or encumbrance which in the judgment of either may affect or appear to affect the security and/or priority of this Deed of Trust, the interest of Beneficiary or the rights, powers and/or duties of Trustee and/or Beneficiary hereunder; and
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(d) By itself or by its agents to be appointed by it for that purpose or by a receiver appointed by a court of competent jurisdiction to enter into and upon and take and hold possession of any portion or all of the Property and/or the Collateral both real and personal, and exclude Trustor and all other persons therefrom; and to operate and manage the Property and/or the Collateral and rent and lease the same, perform such reasonable acts of repair or protection as may be reasonably necessary or proper to conserve the value thereof, and collect any and all income, Rents, issues, profits and proceeds therefrom, the same being hereby assigned and transferred to Beneficiary for the benefit and protection of Beneficiary, and from time to time apply and/or accumulate such income, Rents, issues, profits and proceeds in such order and manner as Beneficiary or such receiver in its sole discretion shall consider advisable, to or upon the following: the expense of receivership, if any, the proper costs of upkeep, maintenance, repair and/or operation of the Property and/or the Collateral, the repayment of any sums theretofore or thereafter advanced pursuant to the terms of this Deed of Trust upon the indebtedness and obligations secured hereby, the taxes and assessments upon the Property and/or Collateral then due or next to become due. The collection and/or receipt of income, Rents, issues, profits and/or proceeds by Beneficiary, its agent or receiver, after declaration of default and election to cause the Property to be sold under and pursuant to the terms of this Deed of Trust shall not affect or impair such default or declaration of default or election to cause the Property to be sold or any sale proceedings predicated thereon, but such proceedings may be conducted and sale effected notwithstanding the receipt and/or collection of any such income, Rents, issues, profits and/or proceeds. Any such income, Rents, issues, profits and/or proceeds in the possession of Beneficiary, its agent or receiver, at the time of sale and not theretofore applied as herein provided, shall be applied in the same manner and for the same purposes as the proceeds of the sale.
Neither Trustee nor Beneficiary shall be under any obligation to make any of the payments or do any of the acts referred to in this Paragraph 2.28 and any of the actions referred to in this Paragraph 2.28 may be taken by Beneficiary upon the occurrence of an Event of Default irrespective of whether any notice of default or election to sell has been given hereunder and without regard to the adequacy of the security for the indebtedness secured hereby.
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III. | DEFAULTS AND REMEDIES |
A. | Defaults. |
3.01 EVENTS OF DEFAULT. Each of the following shall constitute an “Event of Default” for purposes of this Deed of Trust:
(a) The failure by Trustor to make any payment according to the terms, tenor, and effect of this Deed of Trust or of the Exhibits hereto, including, but not limited to, any payment of insurance premiums, penalties, taxes, payments in lieu of taxes, charges, etcetera, in each case within fifteen (15) days after receipt of written notice from the Beneficiary after the same shall become due and payable, whether at maturity, by acceleration, or otherwise;
(b) Except as otherwise provided herein, the failure of Trustor to promptly and accurately perform any other covenant or agreement contained in this Deed of Trust and the Exhibits hereto, or in the Loan Agreement or any of the other Loan Documents, and the additional failure to cure or remedy such within a period of thirty (30) days after written notice thereof; provided, however, that if such failure cannot be remedied in such time, the Trustor shall have an additional thirty (30) days to remedy such failure as long as the Trustor commences efforts to cure within thirty (30) days and, in the reasonable determination of the Beneficiary, diligently and in good faith pursues such cure or remedy;
(c) Any representation, warranty or certificate given or furnished by or on behalf of Trustor shall prove to be false as of the date on which the representation, warranty or certification was given; provided, however, that if any representation, warranty or certification which proves to be false is due to the Trustor’s inadvertence (as reasonably determined by the Beneficiary), the Trustor shall have a thirty (30) day opportunity, after written notice thereof, to cause such representation, warranty or certification to be full, true, and complete in every respect;
(d) Trustor fails to pay any amount due under or pursuant to, or to perform any obligation required by or arising from the Loan Agreement or any other Loan Document and such failure continues uncured beyond any applicable grace period provided for therein or, in the absence of any such grace period, beyond a period of thirty (30) days following written notice of such failure by Beneficiary to Trustor;
(e) Other than the Bankruptcy Case, Trustor shall file, or have filed against it, a petition of bankruptcy, insolvency or similar action pursuant to state or federal law, or shall file any petition or answer seeking, consenting to, or acquiescing in, any reorganization, arrangement, readjustment, liquidation, dissolution or similar relief, and such petition shall not have been vacated within sixty (60) calendar days after filing; or shall be adjudicated bankrupt or insolvent, under any present or future statute, law, regulation, either state or federal, and such judgment or decree is not vacated or set aside within sixty (60) calendar days after such determination;
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(f) Trustor shall make an assignment for the benefit of creditors, or shall submit in writing its inability to pay its debts generally as they become due;
(g) Other than pursuant to the Bankruptcy Case, Trustor consents to, or acquiesces in, the appointment of a receiver, liquidator, or trustee of itself or of the whole or any substantial part of its properties or assets;
(h) Other than in the Bankruptcy Case, a court of competent jurisdiction enters an order, judgment or decree appointing a receiver, liquidator or trustee of the Trustor, of the whole or any substantial part of the property or assets of the Trustor, and such order, judgment or decree shall remain unvacated or not set aside or unstayed for sixty (60) calendar days;
(i) Any attachment, execution or other lien, whether voluntary or involuntary, including mechanics liens, is filed against the Property and is not discharged or dissolved by a bond within sixty (60) days;
(j) Other than those existing on the Closing Date, a default shall occur with respect to any other loan secured by the Property or any other part of the Property that is not cured within any applicable cure period; and
(k) Trustor otherwise fails to comply with the terms of this Deed of Trust, the Loan Agreement or any other Loan Document and such failure continues uncured for a period of thirty (30) days following written notice thereof by Beneficiary to Trustor.
B. | Remedies. |
3.02 ACCELERATION AND FORECLOSURE. Upon the occurrence of an Event of Default hereunder, then and in each such event, Beneficiary may declare all sums secured hereby immediately due and payable either by commencing an action to foreclose this Deed of Trust as a mortgage, or by the delivery to Trustee of a written declaration of default and demand for sale and of written notice of default and of election to cause the Property to be sold, which notice Trustee shall cause to be duly filed for record in case of foreclosure by exercise of the power of sale herein. Should Beneficiary elect to foreclose by exercise of the power of sale herein, Beneficiary shall also deposit with Trustee this Deed of Trust, and such receipts and evidence of expenditures made and secured hereby as Trustee may require, and notice of sale having been given as then required by law and after lapse of such time as may then be required by law after recordation of such notice of default, Trustee, without demand on Trustor, shall sell the Property at the time and place of sale fixed by it in said 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. Trustee shall deliver to such purchaser its deed or deeds conveying the Property, or any portion thereof, so sold, but without any covenant or warranty, express or implied. The recitals in such deed or deeds 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.
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3.03 RESCISSION OF NOTICE. Beneficiary, from time to time before Trustee’s sale, may rescind any such notice of breach or default and of election to cause the Property to be sold by executing and delivering to Trustee a written notice of such rescission, which notice, when recorded, shall also constitute a cancellation of any prior declaration of default and demand for sale. The exercise by Beneficiary of such right of rescission shall not constitute a waiver of any breach or default then existing or subsequently occurring, or impair the right of Beneficiary to execute and deliver to Trustee, as above provided, other declarations of default and demand for sale, and notices of breach or default, and of election to cause the Property to be sold to satisfy the obligations hereof, nor otherwise affect any provision, agreement, covenant or condition of this Deed of Trust or any of the rights, obligations or remedies of the parties hereunder.
3.04 PROCEEDS OF SALE. After deducting all costs, fees and expenses of Trustee and of Trustee’s foreclosure under this Deed of Trust, including but not limited to the cost of appraisal and evidence of title in connection with sale and attorneys’ fees, 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 Default Rate; all other sums then secured hereby; and the remainder, if any, to the person or persons legally entitled thereto.
3.05 OTHER SECURITY. If Beneficiary at any time holds additional security for any obligations secured hereby, it may enforce the terms hereof or otherwise realize upon the same, at its option, either before or concurrently herewith or after a sale is made hereunder, and may apply the proceeds upon the indebtedness secured hereby without affecting the status of or waiving any right to exhaust all or any other security, including the security hereunder, and without waiving any breach or default or any right or power whether exercised hereunder or contained herein or in any such other security.
3.06 REMEDIES CUMULATIVE. No remedy herein conferred upon or reserved to Trustee or Beneficiary is intended to be exclusive of any other remedy herein or by law provided or permitted, but each shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. Every power or remedy given by this instrument to Trustee or Beneficiary or to which any of them may be otherwise entitled may be exercised concurrently or independently, from time to time and as often as may be deemed expedient by Trustee or Beneficiary, and any of them may pursue inconsistent remedies.
3.07 Reserved
IV. | COLLATERAL |
4.01 BENEFICIARY’S RIGHTS AS A SECURED PARTY. With respect to the security interest granted under Paragraph 1.02 hereof, Beneficiary shall have all the rights and remedies granted to a secured party under Division 9 of the California Commercial Code (including without limitation the right to conduct a unified sale of all or any portion of the Property and the Collateral) as well as all other rights and remedies available at law or in equity. Trustor shall, upon the demand of Beneficiary, assemble all of such Collateral and make it available to Beneficiary at the Property, which is hereby agreed to be reasonably convenient to Beneficiary and Trustee. The proceeds of any sale of any portion of the Collateral shall be applied first to the expenses of Beneficiary in retaking, holding, preparing for sale, selling or similar matters, including reasonable attorney’s fees.
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4.02 TRUSTOR’S COLLECTIONS. Until Beneficiary exercises its right to collect proceeds of the Collateral pursuant hereto, Trustor will collect with diligence any and all proceeds of the Collateral. Any proceeds received by Trustor shall be in trust for Beneficiary, and, upon written request by Beneficiary, Trustor shall keep all such collections separate and apart from all other funds and property so as to be capable of identification as the property of Beneficiary and shall deliver such collections at such time as Beneficiary may request to Beneficiary in the identical form received, properly endorsed or assigned when required to enable Beneficiary to complete collection thereof.
4.03 TRUSTOR’S OBLIGATIONS REGARDING COLLATERAL. Trustor shall: (a) upon reasonable prior notice by Beneficiary, permit representatives of Beneficiary to inspect the Collateral and Trustor’s books and records relating to the Collateral and make copies thereof and extracts therefrom and to arrange for verification of the amount of Collateral, under procedures acceptable to Beneficiary, directly with Trustor’s debtors or otherwise at Trustor’s expense; (b) promptly notify Beneficiary of any attachment or other legal process levied against any of the Collateral and any information received by Trustor relative to the Collateral, Trustor’s debtors or other persons obligated in connection therewith, which may in any way adversely affect the value of the Collateral or the rights and remedies of Beneficiary in respect thereto; (c) reimburse Beneficiary upon demand for any and all costs, including without limitation reasonable attorneys’ and accountants’ fees, and other expenses incurred in collecting any sums payable by Trustor under any obligation secured hereby, or in the checking, handling and collection of the Collateral and the preparation and enforcement of any agreement relating thereto; (d) notify Beneficiary of each location at which the Collateral is or will be kept, other than for temporary processing, storage or similar purposes, and of any removal thereof to a new location, including without limitation each office of Trustor at which records relating to the Collateral are kept; (e) provide, maintain and deliver to Beneficiary policies of insurance insuring the Collateral against loss or damage by such risks and in such amounts, forms and by such companies as Beneficiary may reasonably require and with loss payable to Beneficiary, and in the event Beneficiary takes possession of the Collateral, the insurance policy or policies and any unearned or returned premium thereon shall at the option of Beneficiary become the sole property of Beneficiary; and (f) do all acts necessary to maintain, preserve and protect all Collateral, keep all Collateral in good condition and repair and prevent any waste or unusual or unreasonable depreciation thereof.
4.04 BENEFICIARY’S COLLECTION OF PROCEEDS. Following an event of default that Trustor fails to cure within the time periods described in section 3.01, Beneficiary may provide notice to Trustor and thereafter collect proceeds of the Collateral and may give notice of assignment to any and all of Trustor’s debtors, and Trustor does hereby irrevocably constitute and appoint Beneficiary its true and lawful attorney-in-fact to enforce in Trustor’s name or in Beneficiary’s name or otherwise all rights of Trustor in the Collateral and to do any and all things necessary and proper to carry out the purposes hereof; provided, however, Trustor shall have the right to collect, retain, use and enjoy such proceeds subject to the terms hereof and the documents securing Trustor’s obligations thereunder prior to the occurrence of any Event of Default hereunder or under any of said documents. It is hereby recognized that the power of attorney herein granted is coupled with an interest and shall not be revocable and Beneficiary shall have the right to exercise this power of attorney upon any Event of Default hereunder (Beneficiary shall promptly notify Trustor of any action taken by Beneficiary pursuant to this provision but Beneficiary’s failure to do so shall not invalidate any such act, affect any of Trustor’s obligations to Beneficiary or give rise to any right, claim or defense on the part of Trustor.)
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4.05 NO REMOVAL. No personal property covered by the security interest granted herein may be removed from the Property without the prior written consent of Beneficiary unless Trustor shall concurrently replace such personal property with similar property of equivalent value on which Beneficiary has a valid first lien.
4.06 FINANCING STATEMENTS. If required by Beneficiary at any time during the term of this Deed of Trust, Trustor will execute and deliver to Beneficiary, in form satisfactory to Beneficiary, an additional security agreement and/or financing statement covering all personal property of Trustor which may at any time be furnished, placed on, or annexed or made appurtenant to the Property and used, useful or held for use in the operation of the improvements thereon. Trustor authorizes Beneficiary to file any financing statements, continuation statements or amendments thereto describing the Collateral. Any breach of or default under such security agreement shall constitute an Event of Default.
V. | ENVIRONMENTAL COMPLIANCE |
(b) Hazardous Substance. “Hazardous Substance” means any:
(A) Substance, product, waste or other material of any nature whatsoever which is or becomes listed or regulated pursuant to any or all of the following statutes and regulations, as the same may be amended from time to time:
(A) The Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Sections 9601 et seq. (“CERCLA”);
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(B) The Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801, et seq.;
(C) The Resource Conservation and Recovery Act, 42 U.S.C. Sections 6901, et seq., (“RCRA”);
(D) The Toxic Substances Control Act, 15 U.S.C. Sections 2601, et seq.;
(E) The Clean Water Act, 33 U.S.C. Sections 1251, et seq.;
(F) The California Hazardous Waste Control Act, California Health and Safety Code Sections 25100, et seq.;
(G) The California Hazardous Substance Account Act, California Health and Safety Code Sections 25300, et seq.;
(H) The California Safe Drinking Water and Toxic Enforcement Act, California Health and Safety Code Sections 25429.5, et seq.;
(I) California Health and Safety Code Sections 25280, et seq. (pertaining to underground storage of Hazardous Substances);
(J) The California Hazardous Waste Management Act, California Health and Safety Code Sections 25179.1, et seq.;
(K) California Health and Safety Code Sections 25500, et seq. (pertaining to hazardous materials response plans and inventory);
(L) The California Xxxxxx-Cologne Water Quality Control Act, California Water Code Sections 13000, et seq.;
(M) California Civil Code Section 2929.5 (pertaining to inspections relating to hazardous substances); or
(N) All other existing and future federal, state and local laws, ordinances, rules, regulations, orders, requirements, and decrees (in each case having the force of law) regulating, relating to, or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material;
(B) Any substance, product, waste or other material of any nature whatsoever which may give rise to liability (x) under any of the statutes or regulations described in clauses (A) through (N) of Paragraph 5.01(b)(1) above; or (y) under any reported decisions of any state or federal court having jurisdiction over Trustor or any portion of the Property;
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(C) Petroleum, petroleum products and by-products, gasoline or crude oil, other than petroleum and petroleum products contained within regularly operated motor vehicles; and
(D) Asbestos or asbestos containing materials.
(A) Any Hazardous Substance, including the use, storage, generation, production, treatment, disposal, handling, release, discharge, transportation, repair, cleanup, remediation, removal or decontamination of any Hazardous Substance; and
(B) The environmental conditions in, on or under any portion of the Property, including soil, air, and groundwater conditions to the extent caused by any Hazardous Substance.
(A) Any breach by Trustor of any representation, warranty or obligation contained in this Deed of Trust arising from or relating to Hazardous Substances after the expiration of any applicable grace, notice or cure periods;
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(B) The existence, presence, use, storage, generation, production, treatment, disposal, or handling of any Hazardous Substance in, on or under any portion of the Property, whether caused by Trustor or any other Person (but excluding any Indemnified Party), including any prior owner, Lessee, or occupant of any portion of the Property;
(C) The release (including any “release” as defined in California Civil Code Section 2929.5), discharge, or transport of any Hazardous Substance onto or from any portion of the Property, including contamination of any Surrounding Property or any natural resources (including groundwater), whether caused by Trustor or any other Person (but excluding any Indemnified Party), including any prior owner, Lessee, or occupant of any portion of the Property;
(D) The violation of any Hazardous Substance Laws, whether by Trustor or any other Person (but excluding any Indemnified Party), including any prior owner, Lessee, or occupant of any portion of the Property or any Surrounding Property; or
(E) To the extent required by any Hazardous Substance Laws, any repair, cleanup, remediation, removal, closure, or decontamination activity relating to any Hazardous Substance in, on or under any portion of the Property or any Surrounding Property (but only to the extent released from the Property with respect to the Surrounding Property), including any preparation for and investigation, testing, and monitoring relating to any such activity; or
(F) Any personal injury, death, or property damage resulting from or relating to any or all of the matters described in clauses (A) through (F) above.
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5.10 DEFENSE OF ACTIONS AND PROTECTION OF SECURITY BY BENEFICIARY. If an Event of Default has occurred, Beneficiary shall have the right, but not the obligation, to appear in and defend any action or proceeding, whether commenced by or against Trustor or any other Person, relating to any Hazardous Substance Claims and Losses. Beneficiary shall have the right to incur and pay all reasonable costs, fees, expenses and liabilities that Beneficiary determines to be reasonably necessary or appropriate in connection with any such action or proceeding, and all such costs, fees, expenses and liabilities incurred or paid by Beneficiary (a) shall be due and payable by Trustor to Beneficiary on Beneficiary’s demand (which demand shall be accompanied by evidence in reasonable detail of the expenditures made by Beneficiary); (b) shall constitute additional indebtedness of Trustor to Beneficiary; and (c) shall bear interest from the date such amounts are due and payable at the Default Rate. Nothing contained in this Deed of Trust shall be deemed to obligate Beneficiary to make any appearance in or defend any action or proceeding.
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(i) The Property does not contain any Hazardous Substances, and no underground storage tanks or underground deposits of Hazardous Substances are or previously have been located on the Property; and
(ii) Trustor is in compliance with all Hazardous Substance Laws relating to the Property and the use of the Property, including those relating to disclosure to Lessees of the Property.
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(f) Border Zone Property. Neither Trustor nor any other Person, including any prior owner, Lessee, or occupant of the Property, has discovered any occurrence or condition on any Surrounding Property that could reasonably cause the Property to be classified as “border zone property” under the provisions of California Health and Safety Code Sections 25220, et seq., or any regulation adopted in accordance therewith, or to be otherwise subject to any restrictions on the ownership, occupancy, transferability or use of the Property under any Hazardous Substances Law.
VI. | MISCELLANEOUS PROVISIONS |
If to Beneficiary: | SERENE INVESTMENT MANAGEMENT, LLC |
c/o 366 Development LLC
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
If to Trustor: | XXXXXXX XXXXXXX 00, XXX |
x/x Xxxxx Xxxxxxx Xxxx Xxxxxx Trust, Inc.
Attn: Xxxxxx Xxxxxx
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
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IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date set forth above.
WITNESS: | trustor: | ||
CAPITOL STATION 65, LLC, a California | |||
limited liability company | |||
Xxxxx Xxxxxxxx | By: Capitol Station Member, LLC, a Delaware | ||
limited liability company, its Manager | |||
By: Capitol Station Holdings, LLC, a California | |||
limited liability company, its Manager | |||
By: Township Nine Owner, LLC, a Delaware | |||
limited liability company, its Member | |||
By: First Capital Real Estate Operating Partnership, L.P., a Delaware limited partnership, its Manager | |||
By: First Capital Real Estate Trust, Incorporated, a Maryland corporation, its General Partner | |||
By: | /s/ Xxxxxx Xxxxxx | ||
Name: Xxxxxx Xxxxxx | |||
Title: Chief Executive Officer, Treasurer, | |||
Secretary, and Chairman of the Board of the | |||
Board of First Capital Real Estate Trust, Inc. |
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STATE OF CALIFORNIA
COUNTY OF __________________
On _________________ before me, ______________________________________
personally appeared ___________________________________________________, who 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
[SEE ATTACHED CALIFORNIA ACKNOWLEDGMENT]
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
THE LAND DESCRIBED HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SACRAMENTO, CITY OF SACRAMENTO, AND IS DESCRIBED AS FOLLOWS:
Xxxx 0, 0, 0, 0, 0 xxx 0, Xxxx X, X, and Designated Remainder 1 and Designated Remainder 2, as shown on the "Final Map of Township 9-Phase 1, Subdivision No. P10-036", filed November 13, 2012, in Book 000 xx Xxxx, Xxx Xx. 0, xxxxxxx xx Xxxxxxxxxx Xxxxxx.
APNs: 001-0020-056, 057, 058, 060, 061, 062, 063, 064, 066 and 067.
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