Attached files
DEED OF TRUST
THIS DEED OF TRUST is dated June 18, 2010, among LEE JAY GITTLEMAN AND CINDY ELIZABETH GITTLEMAN, AS TRUSTEES FOR THE GITTLEMAN FAMILY2007 TRUST FOR THE BENEFIT OF LEE JAY GITTLEMAN AND CINDY ELIZABETH GITTLEMAN UNDER INSTRUMENT DATED DECEMBER19, 2007, COMMUNITY PROPERTY, whose address is 4705 SEASHORE DRIVE, NEWPORT BEACH, CA 92663 ("Trustor"); CATHAY BANK, a California Banking Corp.,
whose address is REAL ESTATE COMMERCIAL LOAN DEPARTMENT, 777 NORTH BROADWAY, LOS ANGELES, CA 90012 (referred to below sometimes as "Lender" and sometimes as "Beneficiary"); and CHICAGO TITLE COMPANY, A CALIFORNIA CORPORATION, whose address is 560 EAST HOSPITALITY LANE, SAN BERNARDINO, CA 92408 (referred to below as "Trustee").
CONVEYANCE AND GRANT. For valuable consideration, Trustor irrevocably
grants, transfers and assigns to Trustee in
trust, with power of sale, for the benefit of Lender as Beneficiary, all of Trustor's right, title, and Interest in and
to the following described real property, together with all existing or subsequently erected or affixed buildings, improvements and
fixtures; all easements, rights of way, and appurtenances; all water, water rights and ditch rights (lncluding stock In utilities with ditch or irrigation rights); and all other riqhts, royalties, and profits relating to the real property,
including without limitation all minerals, oil, gas, geothermal and similar matters, (the "Real Property") located in Orange County, State of California:
LOT 3 IN BLOCK 47 OF THIRD ADDITION TO NEWPORT BEACH, AS PER MAP RECORDED IN BOOK 3, PAGE 31 OF MISCELLANEOUS MAPS, RECORDS OF SAID COUNTY.
This is second of the two Deeds of Trust securing the same indebtedness.
The Real Property or its address is commonly known as 4705 SEASHORE DRIVE, NEWPORT BEACH, CA
92663. The Assessor's Parcel Number for the Real Property Is 424-454-04.
|
|
Trustor presently assigns to Lender (also known as Beneficiary in this Deed of Trust) all of Trustor's right, title, and
interest in and to all present and future leases of the Property and all Rents from the Property.This is an absolute assignment of Rents made in connection with an obligation secured by real property pursuant
to California Civil Code Section 2938.In addition, Trustor grants to Lender a Uniform Commercial Code security interest In the Personal Property and Rents.
|
|
|
THIS DEED OF TRUST, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERlY, IS GIVEN TO SECURE (A) PAYMENT OF THE INDEBTNESS AND (B) PERFORMANCE OF ANY AND ALL OBLIGATIONS UNDER THIS DEED OF TRUST. THIS DEED OF TRUST IS GIVEN AND
ACCEPTED ON THE FOLLOWING TERMS:
|
|
|
TRUSTOR'S REPRESENTATIONS AND WARRANTIES. Trustor warrants that: (a) this Deed of Trust is executed at Borrower's request and not at the request of Lender. (b) Trustor has the full power, right, and authority to enter into
this Deed of Trust and to hypothecate the Property;(c) the provisions of this Deed of Trust do not conflict with, or result in a default under any agreement or other instrument binding upon Trustor and do· not result in a violation of any law, regulation, court decree or order applicable to Trustor; (d) Trustor has established adequate means of obtaining from Borrower on a continuing basis information about Borrower's financial condition; and (a) Lender has made no representation to Trustor about Borrower (including
without limitation the creditworthiness of Borrower).
|
|
TRUSTOR'S WAIVERS.
|
Except as prohibited by applicable law, Trustor waives any right to require Lender to (a) make any presentment,. protest, demand, or notice of any kind, including notice of change at any terms of repayment of the indebtedness, default by Borrower or
|
any other guarantor or surety, any action or nonaction taken by Borrower, Lender, or anyother guarantor or surety of Borrower, or the
creation of new or additional Indebtedness; (b) proceed against any person, including Borrower, before proceeding against Trustor; (c) proceed against any collateral for the indebtedness, including Borrower's collateral, before proceeding against Trustor; (d) apply any payments or proceeds received against the indebtedness in any order; (e) give notice of
the terms, time, and place of any sale of any
collateral pursuant to the Uniform Commercial Code or any other law governing such sale; (f) disclose any information about the
indebtedness, Borrower, any collateral, or any other guarantor or surety, or about any action or nonaction of Lender; or (g) pursue any
remedy or course of action in Lender's power whatsoever. •
THIS DOCUMENT FILED FOR RECORD BY LT.C. AS AN ACCOMODATION ONLY. IT HAS NOT BEEN EXAMINED AS TO ITS EFFECT UPON TITLE.
DEED OF TRUST
(Continued) Page2
Trustor also waives any end all rights or defenses arising by reason of (h) any disability or other defense of Borrower, any other guarantor or surety or any other person; (i) the cessation from any cause whatsoever, other than payment in fulI,
of the indebtedness; (j) the application of proceeds of the Indebtedness by Borrower for purposes other than the purposes understood
and intended by Trustor end Lender; (k) any act of omission or commission by Lender which directly or indirectly results in or contributes to the discharge of
Borrower
or any other guarantor or surety, or the indebtedness, or the loss or release of any collateral by operation of law
or otherwise; (l) any
statute of limitations in any action under this Deed of Trust or on the indebtedness;
or (m) any modiflcation or change in terms of the
indebtedness, whatsoever. including without limitation,
the renewal, extension, acceleration, or other
change in the time payment of the
indebtedness is due and any change In the interest rate.
Trustor waives all rights and defenses arising out of an election of remedies by Lender, even though that election of remedies, such as
non-judicial foreclosure with respect to security for a guaranteed obligation, has destroyed Trustor's rights of subrogation and reimbursement
against Borrower by the operation of Section 580d of the Califomia Code of Civil Procedure, or otherwise.
Trustor waives all rights and defenses that Trustor may have because Borrower's obligation is secured by real
property. This means among other things: (1)
Lender may collect from Trustor
without first foreclosing on any
real or personal property collateral pledged by Borrower.(2) If Lender forecloses on any reel
property collateral pledged by Borrower: (A) The amount of Borrower's obligatian may be reduced only by the price
for which the collateral is sold at the foreclosure sale, even if the collateralI is worth more than the sale price. (B) Lender may collect from Trustor even if lender,
by forecloslng on the real property collateral, has destroyed any right Trustor may have to collect from Borrower.This
is an unconditional and irrevocable waiver of any rights
and defenses Trustor may have because Borrower's obligation is secured
by real property. These rights and defenses include, but are not
limited to, any rights and defenses based upon
Section 580a, 580b, 580d, or 726
of the Code of Civil Procedure.
Trustor understands and agrees that the foregoing waivers are unconditional and irrevocable waivers of substantive rights end defenses to
which Trustor might otherwise be entitled under state and
federal law. The rights and defenses waived include, without limitation, those provided by
California laws of suretyship and guaranty, anti-deficiency laws, and the Uniform
Commercial Code. Trustor acknowledges that Trustor has provided these waivers of rights and defenses with the intention
that they be fully relied upon by lender. Trustor further understands and agrees that this Deed
of Trust is a separate and independent contract between Trustor and Lender, given for full and ample consideration, and is enforceable on
its own terms.Until all Indebtedness is paid In full, Trustor waives any right to enforce any remedy Trustor may have against Borrower's or any other guarantor, surety, or other person, and further, Trustor waives
any right to participate in any collateral for the indebtedness now or hereafter held by
Lender.
PAYMENT AND PERFORMANCE. Except as otherwise provided in this Deed of Trust, Borrower
shall pay to lender all indebtedness secured by this Deed of Trust as it becomes due,
and Borrower and Trustor shall perform all their respective obligations under the Note, this Deed of Trust, and the Related Documents.
POSSESSION AND MAINTENANCE OF THE PROPERTY. Borrower and Trustor agree that Borrower's and Trustor's possession and use of the Property shall be governed
by the followlng provisions:
Possession and Use. Until the occurrence of an Event of Default, Trustor
may (1) remain in possession and control of the Property;
(2) use, operate or manage the Property; and (3) collect the Rents from the Property. [Missing Graphic Reference]
Duty to Maintain. Trustor shall maintain
the
Property in tenantable condition and promptly porform all repairs, replacements, and
maintenance necessary to preserve its value.
Compliance With Environmental Laws.
Trustor represents and warrants to
lander that (1) During the period of Trustor's ownership of the Property, there has
been no
use, generation, manufacture, storage, treatment, disposal, release or threatened release of any
Hazardous Substance by
any person on, under, about or from
the Property;(2)Trustor has no
knowledge of, or reason to believe
that there
has been, except as previously disclosed to
and acknowledged by Lender In
writing,(a)any breach or violation of any
Environmental laws, (b) any use,
generation, manufacture, storage, treatment, disposal, release
or threatened release of any Hazardous
Substance on, under, about or from the
Property by any prior
owners or occupants of the
Property, or (c) any actual or
threatened litigation or claims of any kind by
any person relating to such
matters; and (3) Except
as previously disclosed to and acknowledged by Lender
in writing, (a)neither Trustor nor any
tenant, contractor; agent or other authorized user
of the Property shall use,
generate, manufacture, store, treat, dispose
of or release any Hazardous
Substance on, under, about or from
the Property; and (b) any such
activity shall be conducted in
compliance with all applicable federal, state, and
local laws, regulatlons and ordinances, including without
!imitation all Environmental Laws. Trustor authorizes Lender
and its agents to enter upon the
Property to make such
inspections and tests, at Trustor's expense, as Lender may deem appropriate
to determine compliance of the Property with this
section of the
Deed of Trust.Any inspections or tests
made by Lender shall be for Lender's purposes onlv and shall not be
construed to create any
responsibility or liability on the part of
Lender to Trustor or to any other
person.The representations and warranties contained herein are based
on Trustor's due diligence in investigating the
Property for Hazardous Substances.Trustor
hereby ( 1)releases and waives
any future claims against
Lender for indemnity or contribution in the event Trustor becomes liabe for cleanup or other
costs under any such
laws; and (2) agrees ·to Indemnify, defend, and hold harmless Lender against any and
all
claims, losses, liabilities, damages, penalties, end expenses which lender may directly or indirectly sustain
or suffer resulting from a breach of this
section of the Deed of
Trust or as a consequence of any
use, generation, manufacture, storage, disposal, release
or threatened release occurring prior
to Trustor's ownership or interest in
the Property, whether or not
the same was or should have
been known to Trustor.The provisions of this
section of the Deed of
Trust, including the obligation to indemnify and defend, shall survive the payment of the
indebtedness and the satisfaction and reconveyance of
the lien of this Deed of Trust
and shall not be affected by Lander's
acquisition of any interest in the Property, whether by foreclosure or otherwise.
Nuisance, Waste. Trustor shall not cause, conduct or permit any nuisance nor commit, permit, or suffer any stripping of or waste on or to the Property or any portion
of the Property. Without limiting the generality of the foregoing,
Trustor will not remove, or grant to any other party the right to
remove, any timber, minerals (including oil and gas), coal, clay, scoria, soil, gravel or rock products without Lender's prior written consent.
Removal of Improvements. Trustor shall not demolish or remove any improvements from the
Real Property without Lender's prior written consent. As a condition to the removal of any improvements, Lender may require Trustor
to make arrangements satisfactory to Lender to replace such improvements with improvements of at least equal value.
DEED OF TRUST
(Continued I Page 3
Lender's Right to Enter. Lender and Lender's agents and representatives may enter upon the Real Property at all reasonable tlmes to attend
to Lender's interests: and to inspect the Real Property for purposes of Trustor's compliance with the terms and conditions of this Deed of Trust.
Compliance with Governmental Requirements. Trustor shall promptly comply with all laws, ordinances, and regulations. now or
hereafter in effect, of all governmental authorities applicable to the use or occupancy of the Property, including without limitation, the Americans With Disabilities Act.Trustor may contest in good faith any such law, ordinance, or regulation and withhold compliance during any proceeding, including appropriate appeals, so long as Trustor has notified Lender in
writing prior to doing so and so long as, in Lender's sole opinion, Lender's interests in the Property are not jeopardized. Lender may require Trustor to
post adequate security or a surety bond, reasonably satisfactory to Lender, to protect
Lender's interest.
Duty to Protect. Trustor agrees neither to abandon or leave unattended
the Property.Trustor shall do all other acts, in addition to those acts set forth above in this section, which from the character and use of the Property are
reasonably necessary to protect and preserve the Property.
Construction Loan. If some or all of the proceeds of the loan creating the indebtedness are
to be used to construct or complete construction of any improvements on the Property, the
improvements shall be completed no later than the maturity date of the Note (or such earlier date as Lender may reasonably establish) and Trustor shall pay in full all costs and expenses in connection
with the work.Lender will disburse loan proceeds under such terms and conditions as Lender may deem reasonably necessary to insure that the interest created by this Deed of Trust shall have priority over all possible liens, including those of material
suppliers and workmen. Lender may require, among other things, that disbursement requests be supported by receipted bills, expense affidavits, waivers of liens, construction progress reports, and such other documentation as lender may reasonably request.
DUE ON SALE - CONSENT
BY LENDER. Lender may, at Lender's option, declare
immediately due and payable all sums secured
by this Deed of Trust upon
the sale or transfer, without Lender's prior
written consent,
of all or any part of the Real Property, or any interest in the Real Property. A "sale
or transfer” means the conveyance of Real Property or any right, title or interest in the Real Property; whether legal,
beneficial or equitable; whether voluntary or involuntary; whether by
outright sale, deed, installment sale contract, lend contract, contract for deed, leasehold interest with
a term greater than
three (3) years, lease-option contract, or by
sale, assignment, or transfer of any
beneficial interest in or to
any land trust holding title
to the Real Property, or by any other method
of conveyance of an interest in the Real
Property. If any Trustor is a corporation, partnership or limited liability company, transfer also includes
any change in ownership of more than
twenty-five percent (25%) of the voting stock, partnership interests or limited liability company interests, as the case may be, of such Trustor.
However, this option shall not be exercised by Lender if such exercise
Is prohibited by applicable law.
TAXES AND LIENS. The following provisions relating to the taxes and liens on the Property are part of this Deed of Trust:
Payment. Trustor shall pay when
due (and in all events at least
ten (10) days prior to
delinquency) all taxes, special taxes,
assessments, charges (including water and sewer), fines
and impositions levied against
or on account of the Propetty,
and shall pay when due all claims for
work done on or for services
rendered or material furnished to the
Property. Trustor shall maintain the Property free of
all liens having priority over or equal
to the interest of Lender under this
Deed of Trust, except for the
lien of taxes and assessments not
due, except for the
Existing Indebtedness referred to below, and
except
as otherwise provided In this Deed of
Trust.
Right to Contest. Trustor may withhold payment of any tax. assessment, or claim in connection with a good faith dispute over the obligation
to pay, so long as Lender's interest in the Property is not jeopardized. If a lien arises or is filed as a result of nonpayment, Trustor shall within fifteen (15) days after the lien arises or, if a lien is filed, within fifteen
(15) days after Trustor has notice of the filing, secure the discharge of the lien, or if requested by Lender, deposit with Lender cash or a sufficient corporate surety bond or other security satisfactory to Lender in an amount sufficient to discharge the lien plus any costs and attorneys’ fees, or
other charges that could accrue as a result of a foreclosure or sale under the lien. In any contest, Trustor shall defend itself and lender and shall satisfy any adverse judgment before enforcement against the Property. Trustor
shall name Lander as an additional obligee under any surety bond furnished In the contest proceedings.
|
|
Evidence of Payment. Trustor shall upon demand
furnish to Lender satisfactory evidence
of payment of the taxes or assessments
and shall authorize
the appropriate governmental official to
deliver to Lender
at any time a written statement of the taxes and assessments against the Property.
|
Notice of Construction. Trustor shall notify Lender at least fifteen (15) days before any work is commenced,
any services are furnished, or any materials are
supplied to the Ptoperty, if any mechanic's lien, materialmen's lien, or
other lien could be asserted on account of the work, services, or materials. Trustor will upon request of Lender furnish to Lender advance assurances satisfactory to Lender that Trustor can and
will pay the cost of such improvements.
PROPERTY DAMAGE INSURANCE. The following provisions relating to insuring the Property are a part of this Deed of Trust.
Maintenance of lnsurance. Trustor shall procure and maintain
policies of fire insurance with standard extended
coverage endorsements on a replacement basis for
the full insurable value covering all
improvements on the Real Property in an
amount sufficient to avoid application of
any coinsurance clause, and
with a standard mortgagee clause in favor
of Lender.Trustor shall also procure and
maintain comprehensive general liability insurance in such
coverage amounts as Lender may request with
Trustee and Lender being named as
additional insureds in such liability insurance
policies.Additionally, Trustor shall maintain such other
insurance, including
but not limited to hazard, business interruptlon, and boiler insurance, as Lender may reasonably
require. Notwithstanding the foregoing, in no event
shall Trustor be required to provide
hazard insurance in excess of the
replacement value of the improvements on the
Real Property.Policies shall be
written in form, amounts, coverages and basis
reasonably acceptable to lender and issued by
a company or companies reasonably acceptable to
Lender. Trustor, upon request of Lender,
will deliver to Lender from time
to time the policies or certificates of insurance in form
satisfactory to Lender, including stipulations that coverages
will not be cancelled or
diminished without at least thirty (30)
days prior written notice to
Lender. Each insurance policy also shall include
an endorsement providing that
coverage in favor of Lender will
not be impaired in any way by
any act, omission or default of Trustor
or any other person.Should the
Real Property be
located in an area designated by
the Director of the Federal Emergency
Management Agency as a special flood hazard
area, Trustor agrees to obtain
and maintain Federal Flood Insurance, if available, within
DEED OF TRUST
{Continued) Page4
45 days after notice is given by Lender that the Property is located in a
special flood hazard area, tor the full unpaid principal balance of the loan and any prior liens on the property securing the loan, up to the maximum policy
limits set under the National Flood Insurance Program, or as otherwise required by Lender, and to maintain such insurance for the term of the loan.
|
|
Application of Proceeds. Trustor shall promptly
notify Lender of any
loss or damage to the Property.
Lender may make proof of loss if Trustor fails
to do so within fifteen (15) days of the casualty.
If in Lender's sole judgment Lender's security
interest in the Property has been
impaired, Lender may,
at Lender's election, receive and retain
the proceeds of any insurance and apply
the proceeds to the
|
reduction of the indebtedness, ppayment
of any lien affecting the Property,
or the restoration and
repair of the Property. If the
proceeds are to be applied to restoration and repair, Trustor shall repair or replace the damaged or destroyed improvements
in a manner satisfactory to Lender. Lender shall, upon satisfactory proof of such expenditure, pay or reimburse Trustor from the proceeds for the reasonable cost of repair or restoration if Trustor is not in default
under this Deed of Trust. Any proceeds which have not been disbursed within 180 days after
their receipt and which lender has
not committed to the repair or restoration of the Property shall
be used first to pay any amount owing to Lender under this Deed of Trust, then to pay accrued interest, and the remainder,
if any, shall be applied to the principal balance of the indebtedness. If Lender holds any proceeds after payment in full of the indebtedness, such
proceeds shall be paid to Trustor as Trustor's interests may appear.
|
|
Compliance with Existing Indebtedness. During the period in whtih any Existing lndebtedness described below is in effect. compliance with the insurance provisions
contained in the instrument evidencing such Existing Indebtedness shall constitute compliance with the
|
insurance provisions under this Deed of Trust, to the extent compliance with
the terms of this Deed of Trust would constitute a duplication of insurance requirement. If any proceeds from the insurance become payable on loss, the provisions in
this Deed of Trust for division of proceeds shall apply only to that portion of the proceeds not
payable to the holder of the Existing Indebtedness.
Trustor's Report on Insurance. Upon request of
Lender, however not more than once a year, Trustor shall furnish to Lender a report on each existing policy of insurance showing: (1) the name of the insurer; (2) the risks
insured; (3) the amount of the policy: (4) the property insured, the then current replacement value of such property, and the manner of determining that value; and (5)the expiration date of the policy.Trustor shall, upon request of Lender, have an independent appraiser satisfactory to Lender determine the cash value replacement cost of the Property.
LENDER'S
EXPENDITURES. If any action
or proceeding is commenced that wou!d materially affect Lander's interest in the Property
or If Trustor fails to comply with
any provision of this Deed of Trust
or any Related Documents, Including but
not limited to Trustor's failure to
comply with any
obligation to maintaln Existing lndebtedness in good standing as required below, or to discharge or pay when due any amounts Trustor required
to discharge or pay under this
Deed of Trust or any
Related Documents, Lender on Trustor's behalf may
(but shall not be obligated to) take
any action that Lender
deems appropriate, including but not limited to
discharging or paying all taxes, liens,
security interests, encumbrances and other claims,
at any time levied or placed on
the Property and paying all costs for
insuring, maintaining and
preserving the Property.All such expenditures incurred
or paid by Lender for such purposes
will than bear interest at the rate charged
under the Note from the data incurred
or paid by
Lender to the date of repayment by
Trustor. All such expenses will become
a part of the
Indebtedness and, at Lender's option, will (A) be
payable on demand; (B) be
added to the balance of
the Note and be apportioned among and
be payable
with any installment payments to become
due during either (1) the term
of any applicable insurance
policy: or (2) the remaining term of
the
Note; or (C) be treated as a balloon payment which will be due and
payable at the Note's maturity.The Deed
of Trust also will secure payment of these
amounts.Such right shall be in addition to all other rights and remedies to
which Lender may be entitled upon Default.
WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of the Property are a part of
this Deed of Trust:
Title. Trustor warrants that: (a) Trustor holds good
and marketable title of record to the
Property in fee simple, free and clear of
all liens
and encumbrances other than those set forth in the
Real Property description or in the Existing Indebtedness section below or in
any title insurance policy, title report, or final title opinion issued in favor
of, and accepted by,
Lender in connection with this Deed of
Trust, and (b) Trustor has the
full right,
power, and authority to execute and deliver this Deed of Trust to Lender.
|
|
Defense of Title.
|
Subject to the exception in the paragraph above, Trustor warrants and will forever defend the title to the Property
against the lawful claims of all persons.
|
In the event any action or ·proceeding is commenced that questions Trustor's title or the interest of Trustee or Lender under this Deed of Trust, Trustor shall defend
the action at Trustor's expense.Trustor may be the nominal party in such proceeding, but Lander shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of Lender's own choice, and Trustor will deliver, or cause to be delivered,
to Lender such instruments as Lender may request from time to time to permit such participation.
|
Compliance With Laws. Trustor warrants that the Property
and Trustor's use of the Property complies with all existing applicable laws, ordinances, and regulations of governmental authorities.
Survival of Representations and Warranties. All representations, warranties, and agreements made by Trustor in this Deed of Trust shall survive the execution and delivery
of this Deed of Trust, shall be continuing in nature, and shall remain in full force and effect
until such time as Borrower's Indebtedness shall
be paid in ful.
EXISTING INDEBET I
DNESS.
The following provisions concerning Existing Indebtedness are a part of this
Deed of Trust:
Existing Lien. The lien of this Deed of Trust securing the Indebtedness
may be secondary and inferior to an existing lien. Trustor expressly covenants and agrees to pay,
or see to the payment of, the Existing Indebtedness and to prevent any default on such
. indebtedness, any default under the instruments evidencing such indebtedness, or any default under any security documents for such
indebtedness.
No
Modification. Trustor shaII not enter
into any agreement with the holder of
any mortgage, deed of trust, or
other security agreement which has priority over
this Deed of Trust by
which that
agreement is modified, amended, extended, or renewed without the prior written consent of
Lender. Trustor shall neither request nor accept
any future advances under any
such security agreement without the
prior written consent of Lender.
CONDEMNATION. The following provisions relating to eminent domain and inverse condemnation
proceedings are a part of this Deed of
Trust:
DEED OF TRUST
(Continued)
Page 5
Proceedings. If any eminent domain or inverse condemnation proceeding is commenced effecting the Property, Trustor shall promptly notify Lender In writing, and Trustor shall promptly take such steps as may be necessary to pursue or defend the action and obtain the award. Trustor may be the nominal party in any such proceeding, but
lender shall be entitled, at its election, to participate in the proceeding and to be represented in the proceeding by counsel of its own choice, and Trustor will deliver or cause to be delivered to Lender such instruments and documentation as may be requested by Lender from time to time to permit such participation.
Application of net Proceeds. If any award is made or settlement entered into in any condemnation proceedings affecting all or any part of the Property or by any proceeding or purchase in lleu of condemnation, lender may at its election, and to the extent permitted by law, require that all or any portion of the award or settlement be applied to the Indebtedness end to the repayment of all reasonable coats,expenses, and attomeys' fees fncurred by Trustee or Lender In connection with
the condemnation proceedings.
IMPOSITION OF TAXES. FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following provisions relating to governmental
taxes, fees and charges are a part of this Deed of Trust:
Current Taxes. Fees and Charges. Upon request by Lender, Trustor shall execute such documents in addition to this Deed of Trust and take whatever other action is requested by Lender to perfect and continue lender's lien on the Real Property. Trustor shall reimburse Lender for all taxes, as described below, together with all expenses incurred In recording. perfecting or continuing this Deed of Trust, Including without limitation all taxes, fees,
documentary stamps, and other charges for recording or registering this Deed of Trust.
Taxes. The following shall constitute taxes to which this section applies: (1) a specific tax upon this type of Deed of Trust or upon all or any part of the Indebtedness secured by this Dead of Trust; (2) a specific tax on Borrower which Borrower is authortzed or required to deduct from payments on the Indebtedness secured by this type of Deed of
Trust; (3) a tax on this type of Deed of Trust chargeable against the Lender or the holder of the Note; and (4) a specific tax on all or any portion of the Indebtedness or on payments of principal and Interest msde by Borrower.
Subsequent Taxes. If any tax to which this section applies is enacted subsequent to the date of this Deed of Trust, this event shall have the same effect as an Event of Default. and Lender may exercise any or all of its available remedies for en Event: of Default as provided below unless Trustor either (1) pays the tax before It becomes delinquent, or (2) contests the tax as provided above in the Taxes and Liens section and deposits with Lender cash or a sufficient corporate surety bond or other security satisfactory to
Lender.
•
SECURITY AGREEMENT:FINANCING STATEMENTS. The following provisions relating to this Deed of Trust as a security agreement are a
part of this Deed of Trust:
Security Agreement. This instrument shall constitute a Security Agreement to the extent any of the Property constitutes fixtures, and
Lender shall have an of the rights of a secured party under the Uniform Commercial Code as amended from time to time.
Security lnterest. Upon request by Lender, Trustor shall take whatever action Is requested by Lender to perfect and continue Lender's security Interest in the Rents and Personal Property. Trustor shall reimburse Lender for all expenses Incurred in perfecting or continuing this security interest. Upon default, Trustor shall not remove, sever or detach the Personal Property from the Property. Upon default,
Trustor shall assemble any Personal Property not affixed to the Property in a manner and at a place reasonably convenient to Trustor and Lender and make it available to Lender within three (3) days after receipt of written demand from Lender to the extent permitted by applicable law.
|
|
Addresses.
|
The mailing addresses of Trustor (debtor) and Lender (secured party) from which Information concerning the security Interest granted by this Dead of Trust may be obtained (each as required by the Uniform Commercial Code) are as stated on the first page of this Deed of Trust.
|
FURTHER ASSURANCES;ATTORNEY..IN FACT. The following provisions relating to further assurances and attorney ln·fact are a part of
this Deed of Trust:
Further Assurances. At any time, and from time to time, upon request of Lender, Trustor will make, execute and deliver, or will cause to be made, executed or delivered, to Lender or to Lender's designee, and when requested by Lender, cause to be filed, recorded, refiled, or rerecorded, as the case may be, at such times and In such offices and places as Lender may deem appropriate, any and all such mortgages. deeds of trust, security deeds,
security agreements, financing statements, continuation statements, instruments of further assurance, certificates, and other documents as may, in the sole opinion of lender, be necessary or desirable In order to effectuate, complete, perfect. continue, or preserve(1) Borrower's and Trustor's obligations under the Note, this Deed of Trust, end the Related Documents, and t2t the liens and security interests created by this Deed of Trust on the Property, whether now owned or hereafter acquired by Trustor.Unless prohibited by law or Lender agrees to the contrary in writing, Trustor shall reimburse
Lender for ell costs and expenses Incurred In connection with the matters referred to in this paragraph.
Attorney-In-Fact. If Trustor fails to do any of the things referred to in the preceding paragraph, Lender may do so for and in the name of Trustor and at Trustor's expense. For such purposes, Trustor hereby irrevocably appoints Lender as Trustor's attorney-In-fact for the purpose of making, executing, delivering, filing, recording, and doing all other things as may be
necessary or desirable, in lender's sole opinion to accomplish the matters referred to In the preceding paragraph.
FULL PERFORMANCE. If Borrower and Trustor pay all the lndebtedness when due, and Trustor otherwise performs all the obligations imposed upon Trustor under this Deed of Trust, Lender shall execute and deliver to Trustee a request for full reconveyance and shall execute and deliver to Trustor suitable statements of termination of any financing statement on file evidencing Lender's security interest in the Rents and the Personal Property, Lender may charge Trustor a
reasonable reconveyance fee et the time of reconveyance.
EVENTS OF DEFAULT. Each of the following, at Lender's option, shall constitute an Event of Default under this Deed of Trust: Payment Default. Borrower fans to make any payment when due under the Indebtedness. Other Defaults. Borrower or Trustor fails to comply with or to perform any other term, obligation, covenant or condition contained in this Deed of Trust or in any of the Related Documents or to comply with or to perform any term, obligatlon, covenant or condition contained in any other agreement
between Lender and Borrower or Trustor.
DEED OF TRUST
(Continued) Page6
Compliance Default. Failure to comply with any other term, obligation, covenant or condition contained in this Dead of Trust, the Note or In any of the related Documents.
Dafault on Other Payments. Failure of Trustor within the time required by this Deed of Trust to make any payment for taxes or
Insurance, or any other payment necessary to prevent filing of or to effect discharge of any lien.
Environmental Default. Failure of any party to comply with or perform when due any term, obligation, covenant or condition contained
In any environmental agreement executed In connection with the Property.
Default In Favor of Third Parties. Should Borrower or any Grantor default under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Borrower's or any Grantor's property or Borrower's ability to repay the Indebtedness or Borrower's or Grantor's ability to perform their
respective obligations under this Deed of Trust or any of the Related Documents.
False Statements. Any warranty, representation or statement made or furnished to Lender by Borrower or Trustor or on Borrower's or Trustor's behalf under this Deed of Trust or the Related Documents is false or misleading in any material respect, either now or at the time made or furnished or becomes false or misleading at any time thereafter.
Defective Collateralization. This Deed of Trust or any of the Related Documents ceases to be in full force and effect (lncluding failure of any collateral document to create a valid and perfected security Interest or lien) at any time and for any reason.
Insolvency. The dissolution or termination of the Trust, the insolvency of Borrower or Trustor,·the appointment of a receiver for any part of Borrower's or Trustor's .property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or Insolvency laws by or against Borrower or Trustor.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Borrower or Trustor or by any governmental agency against any property securing the Indebtedness. This includes a garnishment of any of Borrower's or Trustor's accounts, including deposit accounts, with
'Lender. However, this Event of Default shall not apply If there is a good faith dispute by Borrower or Trustor as to the validity or
reasonableness of the claim which Is the basis of the creditor or forfeiture proceeding end if Borrower or Trustor gives lender written
notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, In an amount determined by lender, in its sole discretion, as being an adequate reserve or bond for the dispute.
Breach of Other Agreement. Any breach by Borrower or Trustor under the terms of any other agreement between Borrower or
Trustor and lender that Is not remedied within any grace period provided therein, Including without limitation any agreement
·concerning any indebtedness or other obligation of Borrower or Trustor to lender, whether existing now or later.
Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the Indebtedness or any
Guarantor dies or becomes Incompetent, or revokes or disputes the validity of, or liability under, any Guaranty of the Indebtedness.
Adverse Change. A material adverse change occurs in Borrower's or Trustor's financial condition, or Lender believes the prospect of payment or performance of the Indebtedness Is impaired.
Existing indebtedness. The payment of any installment of principal or any Interest on the Existing Indebtedness is not made within the time required by the promissory note evidencing such Indebtedness, or a default occurs under the instrument securing such Indebtedness and Is not cured during any applicable grace period in such instrument, or any
suit or other action is commenced to foreclose any existing lien on the Property.
RIGHTS AND REMEDIES ON DEFAULT.If an Event of Default occurs under this Deed of Trust. at any time thereafter, Trustee or Lender may exercise any one or more of the following rights and remedies:
Section of Remedies. Election by Lender to pursue any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Trustor under this Deed of Trust, after Trustor's failure to perform, shall not affect Lender's right to declare e default and exercise its remedies.
Foreclosure by Sale. Upon an Event of Default under this Deed of Trust, Beneficiary may declare the entire Indebtedness secured by this Deed of Trust Immediately due and payable by delivery to Trustee of written declaration of default and demand for sale and of written notice of default and of election to cause to be sold the Property, which notice Trustee shall cause to be filed for
record. Beneficiary also shall deposit with Trustee this Deed of Trust, the Note, other documents requested by Trustee, and all documents evidencing expenditures secured hereby.After the lapse of such time as may then be required by law following the recordation of the notice of default, and notice of sale having been given as then required by law, Trustee, without demand on Trustor, shall .sell the Property at the time and place fixed by It In the notice of sale, either as a whole or in separate parcels, and in such order as it may determine, at public auction to the highest bidder for cash In lawful money of the
United States, payable at time of sale. Trustee may postpone sale of all or any portion of the Property by public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time fixed by the preceding postponement in accordance with applicable law. Trustee shall deliver to such purchaser its deed conveying the Property so sold, but without
any covenant or warranty; express or lmplied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustor, Trustee or Beneficiary may purchase at such sale. After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of evidence of title in connection with sale, Trustee shall apply the proceeds of sale to payment of: all sums expended under the terms hereof, not then
repaid, with accrued interest at the amount allowed by law in effect at the date hereof; all other sums than secured hereby; and the remainder, If any, to the person or persons legally entitled thereto.
Judicial Foreclosure. With respect to all or any part of the Real Property, lender shall have the right In lieu of foreclosure by power of sale to foreclose by judicial foreclosure in accordance with and to the full extent provided by California law.
UCC Remedies. With respect to all or any part of the Personal Property, Lender shall have all the rights and remedies of a secured party under the Uniform Commercial Code, including without limitation the right to recover any deficiency In the manner, and to the full extent provided by California law.
DEED OF TRUST
• (Continued) Page 7
|
|
·Collect Rents. Lender .shall have the right, without notice to Borrower or Trustor to take possession of and manage the Property and collect the Rents, Including amounts past due and unpaid, and apply the net proceeds. over and above Lender's costs, against the Indebtedness. In furtherance of its right. Lender may require any tenant or other user of the Property to make payments of rent or use fees directly to Lender.
If the Rents are collected by lender, then Trustor irrevocably designates Lender as Trustor's attorney-In-fact to endorse Instruments received in payment thereof in the name of Trustor and to negotiate the same and collect the proceeds.Payments by tenants or other users to Lender In response to Lender's demand shall satisfy the obligations for which the payments are made, whether or not any proper grounds for the demand existed. Lender may exercise its rights under this subparagraph either
in person, by agent, or through a receiver.
|
Appoint Receiver. Lender shall have the right to appoint a receiver appointed to take possession of all or any part of the Property. with the power to protect and preserve the Property, to operate the Property preceding foreclosure or sale, and to collect the leases and Rents from the Property and apply the proceeds. over and above the cost of the receivership, against the indebtedness. The receiver
may serve without bond If permitted by law. Lender's right to the appointment of a recetver shall exist whether or not the apparent value of the Property exceeds the Indebtedness by a substantial amount. Employment by Lender shall not disqualify a person from serving as a receiver.
Tenancy at Sufferance. If Trustor remains in possession of the Property after the Property is .sold as provided above or Lender otherwise becomes entitled to possession of the Property upon default of Borrower or Trustor, Trustor shall become a tenant at sufferance of Lender or the purchaser of the Property and shall, at
Lender's option, either (1) pay a reasonable rental for the use of the Property, or (2) vacate the Property immediately upon the demand of Lender.
Other Remedies. Trustee or Lender shall have any other right or remedy provided in this Deed of Trust or the Note or available at law
or in equity.
Notice of Sale. Lender shall give Trustor reasonable notice of the time and place of any public sale of the Personal Property or of the time after which any private sale or other !mended disposition of the .Personal Property is to be made. Reasonable notice shall mean notice given at least ten (10) days before the time of the sale or disposition. Any sale of the Personal Property may be made in conjunction with any
sale of the Real Property.
Sale of the Property. · To the extent permitted by applicable law, Borrower and Trustor hereby waives any and all rights to have the Property marshalled. In exercising its rights and remedies, the Trustee or lender shall be free to sell all or any part of the Property together or separately, In one sale or by separate sales. Lender shall be entitled to bid at any public sale on all or any portion of the
Property.
Attorneys' Fees: Expenses. If Lender Institutes any suit or action to enforce any of the terms of this Deed of Trust, lender shall be entitled to recover such sum as the court may adjudge reasonable as attorneys' fees at trial and upon any appeal. Whether or not any court action ls involved, and to the extent not prohibited by law, all reasonable expenses Lender Incurs that in Lender's opinion are necessary at any time for the protection
of Its Interest or the enforcement of its rights shall become a part of the lndebtedness payable on demand and shall bear interest at the Note rate from the date of the expenditure until repaid. Expenses covered by this paragraph include, without limitation, however subject to any limits under applicable law, Lender's attorneys' fees and Lender's legal expenses, whether or not there Is a lawsuit, including attorneys' fees and expenses for bankruptcy proceedings (Including efforts to modify or vacate any automatic stay or injunction),
appeals, and any anticipated post-judgment collection services, the cost of searching records. obtaining title reports (including foreclosure reports), surveyors' reports, and appraisal fees, title insurance, and fees for the Trustee, to the extent permitted by applicable law. Trustor also will pay any court costs, In addition to ell other sums provided by law.
Rights of Trustee. Trustee shall have all of the rights and duties of Lender as set forth in this section.
POWERS AND OBLIGATIONS OF TRUSTEE. The following provisions relating to the powers and. obligations of Trustee are part of this Deed of Trust:
Power of Trustee. In addition to all powers of Trustee arising as a matter of law, Trustee shall have the power to take the following actions with respect to the Property upon the written request of lender and Trustor. (a) join in preparing and filing a map or plat of the Real Property, including the dedication of streets or other rights to the public; (b) Join In granting any easement or cresting any restriction on the Real Property;
and (c) join In any subordination or other agreement affecting this Deed of Trust or the Interest of Lender under this Deed of Trust.
Obligations to Notify. Trustee· shall not be obligated to notify any other party of a pending sale under any other trust deed or lien. or of any action or proceeding In which Trustor, lender, or Trustee shall be a party, unless the action or proceeding is brought by Trustee.
|
|
Trustee.
|
Trustee shall meet all qualifications required for Trustee under applicable law. In addition to the right& ad remedies set forth above, with respect to all or any part of the Property, the Trustee shall have the right to foreclose by notice end sale, and Lander shall have the right to foreclose by judicial foreclosure, in either case in accordance with end to the full extent provided by applicable law.
|
Successor Trustee. Lender, at Lender's option, may from time to time appoint a successor Trustee to any Trustee appointed under this Deed of Trust by an lnstrument executed and acknowledged by Lender and recorded In the office
of the recorder of ORANGE County, State of California. The Instrument shall contain, In addition to all other matters required by state law, the names of the original lender, Trustee, and Trustor, the book and page where this Deed of Trust is recorded, and the name and address of the successor trustee, and the instrument shall be executed and acknowledged by Lender or its successors in Interest. The successor trustee,
without conveyance of the Property, shall succeed to an the title, power, and duties conferred upon the Trustee in this Deed of Trust and by applicable law. This procedure for substitution of Trustee shall govern to the exclusion of all other provisions for substitution.
Acceptance by Trustee. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law.
DEED OF TRUST
• (Continued) Page 8
NOTICES. Any notice required to be given under this Deed of Trust shall be given in writing, and shall be effective when actually delivered, when actually received by telefacsimile unless otherwise required by law, when deposited with a nationally recognized overnight courier, or, if mailed, when deposited In the United States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Deed of Trust. Trustor requests that copies of any
notices of default and sale be directed to Trustor's address shown near the beginning of this Deed of Trust. All copies of notices of foreclosure from the holder of any lien which has priority over this Deed of Trust shall be sent to Lender's address, as shown near the beginning of this Deed of Trust.Any party may change Its address for notices under this Deed of Trust by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party's
address. For notice purposes, Trustor agrees to keep lender informed at all times of Trustor's current address. Unless otherwise provided or required by law, if there is more than one Trustor, any notice given by Lender to any Trustor is deemed to be notice given to all Trustors.
STATEMENT OF OBLIGATION FEE.Lender may collect a fee, not to exceed the maximum amount permitted by law, for furnishing the statement of obligation as provided by Section 2943 of the Civil Code of California.
INITIAL ARBITRATION. Lender and Borrower and Guarantor agree that all disputes, claims and controversies between them, whether individual, joint, or class in nature, arising from the Note, Guaranty, or any other loan document, lncluding without limitation contract and tort disputes, shall be arbitrated pursuant to the rules of the American Arbitration Association ("AAA”) in accordance with Its Commercial Arbitration Rules and Supplemental Procedures for Financial Services Disputes, upon request of
either party. No act to take or dispose of any collateral securing the Note or Guaranty shall constitute a waiver of this arbitration agreement or be prohibited by this arbitration agreement. This includes, without limitation, obtaining injunctive relief or a temporary restraining order, invoking a power of sale under any deed of trust or mortgage; obtaining a writ of attachment or imposition of a receiver; or exercising any rights relatingto personal property, Including taking or disposing of such property with or without judicial process pursuant to Article 9 of
the Uniform Commercial Code. Any disputes, claims, or controversies concerning the lawfulness or reasonableness of any act, or exercise of any right, concerning any collateral securing the Note, Guaranty, or any other loan document. including without limitation, any claim to rescind, reform, or otherwise modify any agreement relating to the collateral securing the Note or Guaranty shall also be arbitrated, provided however that no arbitrator shall have the right or the power to enjoin or restrain any act of any party. Lender and Borrower and Guarantor agree that in the event of
an action for judicial foreclosure pursuant to California Code of Civil Procedure Section 726.or any similar provision in any other State, the commencement of such an action will not constitute a waiver of the right to arbitrate and the court shall refer to arbitration as much of such action, including counterclaims, as lawfully may be referred to arbitration. Judgment upon any award rendered by any arbitrator may be entered in any court having jurisdiction. The arbitrators shall not have power to make an award of $1.0 million or
more against any party to an arbitration unless it is ln the form of a statement of decision as described in California Code of Civil Procedure Section 632, and the parties specifically reserve the right, upon a petition to vacate, to have any such award reviewed and vacated upon the same grounds as would result in reversal on appeal from a judgment after trial by court. Nothing in the Note or Guaranty shall preclude any party from seeking equitable relief from a court of competent jurisdiction. The statute of limitations, estoppel, waiver, laches, and similar doctrines
which would otherwise be applicable in an action brought by a party shall be applicable in any arbitration proceeding, and the commencement of an arbitration proceeding shall be deemed the commencement of an action for these purposes.
To the extent not provided by this agreement, including the Rules Incorporated herein, arbitration hereunder shall be governed by California arbitration law.Arbitration shell be conducted in California, In English and, unless otherwise agreed to by the parties with respect to a particular dispute, shall be heard by a panel of three arbitrators. The arbitrators In any arbitration shall be experienced In the areas of law
raised by the subject matter of the dispute. Lists of prospective arbitrators shall include retired judges. Notwithstanding the AAA rules, (al any party may strike from a list of prospective arbitrators any individual who is regarded by that party as not appropriate for the dispute; and (b), if the arbitrator appointment cannot be made from the Initial list of prospective arbitrators circulated by the AAA, a second and, if necessary, a third first shall be circulated and exhausted before the AAA Is empowered to make the appointment.
The Federal Arbitration Act shall apply to the construction, interpretation, and enforcement of this arbitration provision. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Deed of Trust:
Amendments. This Deed of Trust, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth In this Deed of Trust. No alteration of or amendment to this Deed of Trust shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment.
Annual Repo1ts. If the Property Is used for purposes other than Trustor's residence, Trustor shall furnish to Lender, upon request, a certified statement of net operating Income received from the Property during Trustor's previous fiscal year in such form and detail as
Lender shall require. "Net operating Income" shall mean all cash receipts from the Property less all cash expenditures made in connection with the operation of the Property.
Caption Headings. Caption headings in this Deed of Trust are for convenience purposes only and ere not to be used to interpret or define the provisions of this Deed of Trust.
Merger. There shell be no merger of the interest or estate created by this Deed of Trust with any other Interest or estate In the Property at any time held by or for the benefit of Lender In any capacity, without the written consent of Lender.
Governing Law. This Deed of Trust will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of the State of California without regard to its conflicts of law provisions. This Deed of Trust has been accepted by Lender In the State of California
Choice of Venue. If there is a lawsuit, Trustor agrees upon Lender's request to submit to the jurisdiction of the courts of LOS ANGELES County, State of California.
Joint and Several Liability.All obligations of Borrower and Trustor under this Deed of Trust shall be Joint and several, and all references to Trustor shall mean each and every Trustor, and all references to Borrower shall mean each and every Borrower. This means that each Trustor signing below is responsible for an obligations in this Deed of Trust.
No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Deed of Trust unless such waiver Is given in writing and signed by lender.No delay or omission on the part of Lender In exercising any right shall operate and a waiver of such
DEED OF TRUST
(Continued) Page 9
right
or any other right. A waiver
by lender of a provision
of this
Deed of Trust shall not prejudice or constitute a waiver of Lender's right
otherwise to demand strict compliance with that
provision or any other provision of this
Deed of Trust. No prior waiver by Lender,
nor any course of dealing between Lender
and Trustor, shall constitute a waiver of
any of Lender's rights or of any
of
Trustor's obligations as to any future transactions. Whenever the consent of Lender is required under this Deed of Trust, the granting of such
consent by Lender in any instance shall not
constitute continuing consent to subsequent instances where
such consent is
required and In all cases such consent
may be granted
or withheld fn the sole discretion of Lender.
Severability. If a court of competent jurisdiction finds any provision of this Deed of
Trust to be illegal, invalid, or unenforceable as to any circumstance, that finding shall not make
the offending provision illegal Invalid, or unenforceable as to any other circumstance. If feasible, the offending provision shall be considered modified so that it becomes legal, valid and
enforceable. If the offendfng provision cannot be so modified, It shall be considered deleted from this Deed of Trust. Unless otherwise required by law, the Illegality, invalidity, or unenforceability of any
provision of this Deed of Trust shall not affect the legality, validity or enforceability of any other provision of this Deed
of Trust.
Successors and Assigns. Subject to any limitations stated in this Deed of Trust on transfer of Trustor's Interest, this Deed of Trust
shall be binding upon and inure to the benefit of the parties, their successors and assigns. If ownership of
the Property becomes vested in a person other than Trustor, lender, without notice to Trustor, may deal with Trustor's successors with reference to this Deed of Trust and the Indebtedness by way of forbearance or
extension without releasing Trustor from the obligations of this Deed of Trust or liability under the Indebtedness.
Time is of the Essence. time is of the
essence in the performance of this Deed of Trust.
Waive Jury. _To the extent
permitted by applicable law. all parties to this Deed
of Trust hereby waive the right
to any jury trial In any action..
proceeding, or counterclaim brought by any party against any other party.
DEFINITIONS. The following capitalized words and terms shall have the following meanings when used
In this Deed of Trust. Unless specifically stated to the contrary, all references
to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms used In the singular shall lnclude the plural, and the plural
shall lnclude the singular, as the context may require. Words and terms not otherwise defined in this Deed of Trust shall have the meanings attributed to such terms in the Uniform Commercial Code:
Beneficiary. The word "Beneficiary" means CATHAY BANK, a California Banking Corp., and Its successors and assigns.
|
|
· Borrower. The word "Borrower" means LGI DELAWARE, LLC and Includes all co-signers and co-makers signing the Note and all their successors and assigns.
|
Deed of Trust. The words "Deed of Trust" mean this Dead
of Trust among Trustor, Lender, and Trustee, and includes without limitation all assignment and security Interest provisions relating to the Personal Property and Rents.
Default. The word •Default" means the Default set
forth in this Deed of Trust in the section titled "Default”.
Environmental Laws. The words "Environmental Laws" mean any and all state, federal and local statutes, regulations end ordinances
relating to the protection of human 11ealth or the environment, including -without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section
9601, et seq. (“CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pt. b. L. No.
99-499 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, at seq., the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901,et seq., Chapters 6.5 through 7.7 of Division 20 of the California Health and Safety Code, Section 25100, et seq.,
or other applicable state or federal laws, rules, or regulations adopted pursuant thereto.
Event of Default. l1l8 words "Event of Default" mean any of the events of default set forth in this Deed of
Trust in the events of default section of this Deed of Trust.
Existing Indebtedness. The words "Existing Indebtedness" mean the Indebtedness
described In the Existing Uens provision of
this
Dead of Trust.
Guarantor. The word "Guarantor" means any guarantor, surety,or accommodation party of any or all of the Indebtedness.
Guaranty. The word "Guaranty" means the guaranty from Guarantor to Lender, including without limitation a guaranty of all or part of the Note.
Hazardous Substances. The words "Hazardous Substances" mean materials that, because of their quantity, concentration or physical, chemical or lnfectious characteristics, may cause or pose a present or potential hazard to human health or the environment when improperly used, treated, stored, disposed of, generated, manufactured, transported or otherwise handled. The words "Hazardous Substances"are used in their very broadest sense and
Include without limitation any and all hazardous or toxic substances, materials or waste as defined by or fisted under the Environmental laws.The term "Hazardous Substances• also Includes, without limitation, petroleum and petroleum
by-products or any fraction thereof and asbestos.
Improvements. The word "Improvements" means all existing and future improvements, buildings, structures, mobile homes affixed on the Real
Property, facilities, additions, replacements and other construction on the Real Property.
Indebtedness. The word
"Indebtedness" means all principal, Interest,
and other amounts, costs and expenses payable under the Note or Related Documents,
together with all renewals
of, extensions of, modifications of, consolidations
of and substitutions for the Note
or Related Documents and any amounts expended
or advanced
by Lender to discharge Trustor's obligations
or expenses incurred by
Trustee or Lender to enforce Trustor's obligations under this Deed of Trust, together with Interest
on such amounts as provided in this
Deed of Trust.
Lender. The word '"lender• means CATHAY BANK, a California Banking Corp., its successors and assigns.
Note. The word "Note" means the promissory note dated June 18, 2010, In the original principal amount of
$12,698,073.37 from Borrower to Lender, together with all renewals of, extensions of, modifications of, refinancings of,
consolidations of, and substitutions for the promissory note or agreement. NOTICE TO TRUSTOR: THE NOTE CONTAlNS
DEED OF TRUST
• (Continued) Page 10
VARIABLE INTEREST RATE.
|
|
Personal Property. The words “Personal Property" mean all equipment, fixtures, and other articles of personal property now or hereafter owned by Trustor, end now or hereafter attached or affixed to the Real Property;
together with all accessions, parts, and additions to, all replacements of, and all substitutions for, any of such property; and together with all proceeds (including Without limitation all insurance proceeds and refunds of premiums) from any sale or other disposition of the Property.
|
Property. The
word "Property" means collectively the Real Property and the Personal Property.
Real Property. The words "Real Property• mean the real property, Interests and rights, as further described In this Deed of Trust. Related Documents. The words "Related Documents" mean all promissory notes, credit agreements,
loan agreements, security
agreements, mortgages, deeds of trust. security deeds, collateral mortgages, and all other Instruments, agreements and documents,
whether now or hereafter existing, executed In connection with the Indebtedness;
except that the words do not mean any guaranty or environmental agreement, whether now or hereafter existing, executed in connection with the Indebtedness.
Rents. The word “Rents” means all present and future leases, rents, revenues, income, Issues, royalties,
profits, and other benefits derived from the Property together with the cash proceeds of the Rents.
Trustee. The word "Trustee" means CHICAGO TITLE COMPANY, A CAUFORNIA CORPORATION, whose address is 560 EAST
HOSPITALITY LANE, SAN BERNAR'DINO. CA 92408 and any substitute or successor trustees.
Trustor. The
word "Trustor• means THE GITTLEMAN FAMILY
2007 TRUST dated December 19, 2007.
TRUSTOR ACKNOWLEDGES HAVING
READ ALL THE PROVISIONS OF
THIS Deed OF TRUST, AND TRUSTOR AGREES TO ITS TERMS. INCLUDING THE VARIABLE RATE PROVISIONS OF THE
NOTE SECURED BY THIS Deed OF TRUST.