15-0701_MILLENNIUM HOUSING, LLC._Deed of Trust 2015000396762 Recorded in Official Records, Orange County
RECORDING REQUESTED BYHugh Nguyen, Clerk-Recorder
FIRST AMERICAN TITLE INSURANCECO. I Ill 1 I I�1�IE�Illi 11�11E111111 1111l 11111 1111 !11111�11 1111
NATIONAL COMMERCIAL.SERVICES NO F E E
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RECORDING REQUESTED BY AND ) 201500039676212:35 pm 07/30115
WHEN RECORDED MAIL TO: ) 0. 401 D11 32
0.00 0.00 0.00 OAO 93.00 0.00 OAO 0.00 ,
Preston Olsen,Esq. )
Ballard Spahr LLP )
201 S. Main St., Suite 800 )
Salt Lake City, UT 84111-2221 )
NCS -71oo74 -5A�1
This document is recorded for the benefit of the Independent Cities Finance Authority,
and the recording is fee-exempt under Section 27383 of the Government Code.
DEED OF TRUST '
WITH ABSOLUTE ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS DEED OF TRUST WITH ABSOLUTE ASSIGNMENT OF LEASES AND
RENTS, SECURITY AGREEMENT AND FIXTURE FILING (the "Deed of Trust") is made as
of July 1, 2015, by Millennium Housing, LLC, a California limited liability company("Trustor")
to First American Title Insurance Company ("Trustee"), for the benefit of MUFG Union Bank,
N.A., as Trustee under the Indenture referred to herein (the "Indenture Trustee" and
"Beneficiary" hereunder), all as provided in the Indenture of Trust, dated as of July 1, 2015 (the
"Indenture"), by and between the Indenture Trustee and Independent Cities Finance Authority
(the"Authority").
THIS DEED OF TRUST is given, inter alia, for the purpose of securing a loan (the
"Loan") from Beneficiary (as assignee of the Authority) as lender to Trustor as borrower, the
proceeds of which are to be used by Trustor for the financing and renovation of the San Juan
Estates located in the City of San Juan Capistrano, California, more particularly described in
Exhibit A attached hereto and by this reference incorporated herein (the "Land"). Immediately
following the execution of the promissory note secured by this Deed of Trust (1) the Authority
assigned its interest in such promissory note to Beneficiary and (2) the promissory note was
secured by this Deed of Trust.
FOR GOOD AND VALUABLE CONSIDERATION, including the indebtedness herein
recited and the trust herein created, the receipt of which is hereby acknowledged, Trustor hereby
irrevocably grants, transfers, conveys and assigns to Trustee, IN TRUST, WITH POWER OF
SALE, for the benefit and security of Beneficiary, under and subject to the terms and conditions
hereinafter set forth,the Land;
TOGETHER WITH any and all buildings and improvements now or hereafter erected on
the Land including, without limitation, fixtures, tenements, attachments, appliances, equipment,
building systems, machinery, and other articles now or hereafter attached to the buildings and
improvements (collectively,the "Improvements"), all of which shall be deemed and construed to
be a part of the real property; provided however, the term "Improvements" as used in this Deed
of Trust shall not include any mobile home coaches owned by any party other than Trustor to the
extent such coaches are deemed to be Improvements at any time, either now or in the future.
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TOGETHER WITH all earnings, rents, issues, profits, revenue, royalties, income,
proceeds and other benefits, including without limitation prepaid rents and security deposits
(collectively, the "Rents") derived from any lease, sublease, license, franchise or concession or
other agreement (collectively, the "Leases") now or hereafter affecting all or any portion of the
Land, or the Improvements or the use or occupancy thereof,
TOGETHER WITH all interests, estates or other claims, both in law and in equity, which
Trustor now has or may hereafter acquire in the Land or the Improvements, including without
limitation, all right, title and interest now owned or hereafter acquired by Trustor in and to any
greater estate in the Land or the Improvements;
TOGETHER WITH all easements, tenements, hereditaments, appurtenances,
rights-of-way and rights now owned or hereafter acquired by Trustor used or useful in
connection with the Land or as a means of access thereto, including, without limiting the
generality of the foregoing, all development rights and credits, rights pursuant to any trackage
agreement and all rights to the nonexclusive use of common drive entries, all oil and gas and
other hydrocarbons and all other minerals and water and water rights and shares of stock
evidencing the same;
TOGETHER WITH all leasehold estate, right, title and interest of Trustor in and to all
leases, subleases, subtenancies, licenses, franchises, occupancy agreements and other agreements
covering the Land, the Improvements or any portion thereof now or hereafter existing or entered
into, and all right, title and interest of Trustor thereunder, including, without limitation, all cash
or security deposits, prepaid or advance rentals, and deposits or payments of similar nature;
TOGETHER WITH all right, title and interest of Trustor, now owned or hereafter
acquired in and to any land lying within the right-of-way of any street, open or proposed,
adjoining the Land and any and all sidewalks, vaults, alloys and strips and gores of land adjacent
to or used in connection with the Land;
TOGETHER WITH all the estate, interest, right, title, other claim or demand, both in law
and in equity, including claims or demands with respect to the proceeds of insurance in effect
with respect to the Land, which Trustor now has or may hereafter acquire in the Land or the
Improvements and any and all awards made for the taking by eminent domain, or by any
proceeding of purchase in lieu thereof, of the whole or any part of the interests described in this
Deed of Trust, including, without limitation, any awards resulting from a change of grade of
streets and awards for severance damages.
The entire estate, property and interest hereby conveyed to Trustee may hereafter be
collectively referred to as the "Trust Estate."
FOR THE PURPOSE OF SECURING THE FOLLOWING OBLIGATIONS ("Secured
Obligations"):
(a) payment of indebtedness in the principal amount of $37,235,000 with
interest thereon, evidenced by that certain Note dated July 30, 2015 and all modifications,
extensions, renewals and replacements thereof (collectively, the "Note"), executed by
Trustor pursuant to that certain Loan Agreement, dated as of July 1, 2015, by and among
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Authority, Trustor and Indenture Trustee and all supplements, amendments and
modifications thereto and all extensions and renewals thereof(the "Loan Agreement");
(b) performance of every obligation, covenant or agreement of Trustor
contained herein, in the Loan Agreement, in the Note, or in any other document,
instrument or agreement executed and delivered by Trustor in connection with the Loan;
(c) performance of every obligation, covenant and agreement of Trustor
contained in any agreement now or hereafter executed by Trustor which recites that the
obligations thereunder are secured by this Deed of Trust, including, without limitation
payment of all other sums, with interest thereon, which may hereafter be loaned to
Trustor, or its successors or assigns, by Beneficiary, or its successors or assigns, when
evidenced by a promissory note or notes reciting that they are secured by this Deed of
Trust;
(d) compliance with and performance of each and every material provision of
any declaration of covenants, conditions and restrictions pertaining to the Trust Estate or
any portion thereof; and
(e) payment and performance of all obligations of Trustor arising from any
and all existing and future agreements with Beneficiary which may afford interest rate
protection to all or part of the Loan, when such agreement recites that the obligations
thereunder are secured by this Deed of Trust.
All initially capitalized terms used herein which are defined in the Indenture or the Loan
Agreement shall have the same meaning herein unless the context otherwise requires.
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR HEREBY
COVENANTS AND AGREES AS FOLLOWS:
ARTICLE 1
COVENANTS AND AGREEMENTS OF TRUSTOR
1.1 Payment of Secured Obligations. Trustor shall pay when due the principal of and
the interest on the indebtedness evidenced by the Note; all charges, fees and other sums as
provided in the Loan Documents; the principal of and interest on any future advances secured by
this Deed of Trust; and the principal of and interest on any other indebtedness secured by this
Deed of Trust.
1.2 Maintenance, Repair, Alterations. Trustor (a) shall keep the Land and the
Improvements in good condition and repair; (b) shall not remove, demolish or substantially alter
(other than as contemplated in the Loan Agreement) any of the Improvements except upon the
prior written consent of Beneficiary; (c) shall complete promptly and in a good and workmanlike
manner any Improvement which may be now or hereafter constructed on the Land and promptly
restore in like manner any portion of the Improvements which may be damaged or destroyed
thereon from any cause whatsoever, and pay when due all claims for labor performed and
materials furnished therefor; (d) shall comply with all laws, ordinances, regulations, covenants,
conditions and restrictions now or hereafter affecting the Trust Estate or any part thereof or
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requiring any alterations or improvements, including without limitation, all Hazardous Materials
Laws, the Americans with Disabilities Act, Public Law 101-336 (the "ADA"), and the California
Fair Housing Act of 1992; (e) shall not commit or permit any waste or deterioration of the Land
or the Improvements; (f) shall not allow changes in the use for which all or any part of the Land
or the Improvements were intended; (g) shall not initiate or acquiesce in a change in the zoning
classification of the Land and the Improvements without Beneficiary's prior written consent; and
(h) if requested by Beneficiary, shall provide for professional management of the Land and
Improvements by a property manager satisfactory to Beneficiary pursuant to a management
contract approved by Beneficiary in writing.
1.3 Required Insurance.
(a) Trustor shall at all times provide, maintain and keep in force or cause to be
provided, maintained and kept in force, at no expense to the Authority or the Indenture Trustee,
policies of insurance in accordance with the terms of the Loan Agreement in form and amounts,
providing for deductibles, and issued by companies, associations or organizations covering such
casualties, risks, perils, liabilities and other hazards as required by the Loan Agreement.
(b) Trustor shall not obtain separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained hereunder unless Beneficiary
is included thereon under a standard, non-contributory mortgagee clause or endorsement
acceptable to Beneficiary. Trustor shall immediately notify Beneficiary whenever any such
separate insurance is obtained and shall promptly deliver to Beneficiary the original policy or
policies of such insurance.
(c) Within 90 days following the end of each fiscal year of Trustor, at the
request of Authority, Trustor at Trustor's expense shall furnish such evidence of replacement
costs as the insurance carrier providing casualty insurance for the Improvements on the Land
may require to determine, or which such carrier may provide in determining, the then
replacement cost of the Improvements on the Land.
1.4 Delivery of Policies, Payment of Premiums.
(a) All policies of insurance shall either have attached thereto a lender's loss
payable endorsement for the benefit of Beneficiary in form satisfactory to Beneficiary or shall
name Beneficiary as an additional insured, as required under the Loan Agreement. Trustor shall
furnish Authority and Beneficiary with evidence of insurance issued by the applicable insurance
company for each required policy setting forth the coverage, the limits of liability, the name of
the carrier, the policy number and the period of coverage, and otherwise in form and substance as
provided in the Loan Agreement. At least 30 days prior to the expiration of each required policy,
Trustor shall deliver to Beneficiary evidence reasonably satisfactory to Authority of the payment
of premiums and the renewal or replacement of such policy continuing insurance in form as
required by this Deed of Trust. All such policies shall contain a provision that, notwithstanding
any contrary agreement between Trustor and the insurance company, such policies will not be
canceled, terminated, allowed to lapse without renewal, surrendered or materially amended,
which term shall include any reduction in the scope or limits of coverage, without at least 30
days' prior written notice to Beneficiary.
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(b) In the event Trustor fails to provide, maintain, keep in force or deliver to
Beneficiary the policies of insurance required by this Deed of Trust or by the Loan Agreement,
Authority may (but shall have no obligation to) procure such insurance or single-interest
insurance for such risks covering Beneficiary's interest. Trustor will pay all premiums thereon
and reimburse Authority for all amounts paid or incurred by it in connection therewith promptly
upon demand by Authority and, until such payment and reimbursement is made by Trustor, the
amount of all such premiums and amounts paid or incurred by Authority shall be added to the
principal amount of the Loan. Notwithstanding the foregoing, nothing contained herein shall
modify the obligation of Trustor set forth in Section 1.3 hereof to maintain and keep such
insurance in force at all times.
1.5 Casualties, Insurance Proceeds. Trustor shall give prompt written notice thereof
to Authority and Beneficiary after the happening of any casualty to or in connection with the
Land, the Improvements, or any part thereof, whether or not covered by insurance. In the event
of such casualty, all proceeds of insurance shall be payable to the Beneficiary, whether required
by the Loan Documents or otherwise, and Trustor hereby authorizes and directs any affected
insurance company to make payment of such proceeds directly to the Beneficiary, for the benefit
of the Project. If Trustor receives any proceeds of insurance resulting from such casualty,
whether required by the Loan Documents or otherwise, Trustor shall promptly pay over such
proceeds to the Beneficiary. In the event of any damage or destruction of the Land or the
Improvements, Beneficiary, at the written direction of Authority, shall apply all loss proceeds
remaining after deduction of all expenses of collection and settlement thereof, including, without
limitation, fees and expenses of attorneys and adjusters, to the restoration of the Improvements,
but only as repairs or replacements are effected and continuing expenses become due and
payable and provided all applicable conditions specified in the Loan Agreement with respect
thereto have been satisfied. If any one or more of such conditions in the Loan Agreement have
not been met, Beneficiary shall apply all loss proceeds, after deductions as herein provided, to
the prepayment of the outstanding balance of the Note, together with all accrued interest thereon,
notwithstanding that the outstanding balance may not be due and payable. Nothing herein
contained shall be deemed to excuse Trustor from repairing or maintaining the Land and the
Improvements as provided in Section 1.2 hereof or restoring all damage or destruction to the
Land or the Improvements, regardless of whether or not there are insurance proceeds available to
Trustor or whether any such proceeds are sufficient in amount, and the application or release by
Beneficiary, at the written direction of Authority, of any insurance proceeds shall not cure or
waive any Default or notice of default under this Deed of Trust or invalidate any act done
pursuant to such notice.
1.6 Assignment of Policies Upon Foreclosure. In the event of foreclosure of this
Deed of Trust or other transfer of title or assignment of the Trust Estate in extinguishment, in
whole or in part, of the debt secured hereby, all right, title and interest of Trustor in and to all
policies of insurance obtained by Trustor, whether required by the Loan Documents or
otherwise, shall inure to the benefit of and pass to the successor in interest to Trustor or the
purchaser or grantee of the Trust Estate.
1.7 Indemnification; Subrogation; Waiver of Offset.
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(a) If Beneficiary is made a party to any litigation concerning the Note, this
Deed of Trust, any of the Loan Documents, the Trust Estate or any part thereof or interest
therein, or the occupancy of the Land or the Improvements by Trustor, then Trustor shall
indemnify, defend and hold Beneficiary harmless from all liability by reason of that litigation,
including reasonable attorneys' fees and expenses incurred by Beneficiary as a result of any such
litigation, whether or not any such litigation is prosecuted to judgment. Beneficiary may employ
an attorney or attorneys selected by it to protect its rights hereunder, and Trustor shall pay to
Beneficiary reasonable attorneys' fees and costs incurred by Beneficiary, whether or not an
action is actually commenced against Trustor by reason of its breach.
(b) Trustor waives any and all right to claim or recover against Authority and
Beneficiary, and their respective officers, employees, agents and representatives, for loss of or
damage to Trustor, the Trust Estate, Trustor's property or the property of others under Trustor's
control from any cause insured against or required to be insured against by the provisions of this
Deed of Trust.
(c) All sums payable by Trustor in accordance with the terms of this Deed of
Trust or the Note shall be paid without notice, demand, counterclaim, setoff, deduction or
defense and without abatement, suspension, deferment, diminution or reduction, and the
obligations and liabilities of Trustor hereunder shall in no way be released, discharged or
otherwise affected (except as expressly provided herein) by reason of. (i) any damage to or
destruction of or any condemnation or similar taking of the Trust Estate or any part thereof, (ii)
any restriction or prevention of or interference by any third party with any use of the Trust Estate
or any part thereof; (iii) any title defect or encumbrance or any eviction from the Improvements
or any part thereof by title paramount or otherwise; (iv) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other like proceeding relating
to Beneficiary, or any action taken with respect to this Deed of Trust by any trustee or receiver of
Beneficiary, or by any court, in any such proceeding; (v) any claim which Trustor has or might
have against Beneficiary, which does not relate to the Loan; or (vi) any other occurrence
whatsoever, whether similar or dissimilar to the foregoing; whether or not Trustor shall have
notice or knowledge of any of the foregoing. Except as expressly provided herein and subject to
any limitation thereon provided by law, Trustor waives all rights now or hereafter conferred by
statute or otherwise to any abatement, suspension, deferment, diminution or reduction of any
sum secured hereby and payable by Trustor.
1.8 Taxes and Impositions.
(a) As used herein, "Impositions" shall mean all real property taxes and
assessments, general and special, and all other taxes and assessments of any kind or nature
whatsoever, including, without limitation, nongovernmental levies or assessments such as
maintenance charges, levies or charges resulting from covenants, conditions and restrictions
affecting the Trust Estate, which are assessed or imposed upon the Trust Estate or any portion of
it, or become due and payable, and which create, may create or appear to create a lien upon the
Trust Estate, or any part thereof, or upon any person, property, equipment or other facility used
in the operation or maintenance thereof, or any tax or assessment on the Trust Estate, or any part
of it, in lieu thereof or in addition thereto, or any license fee, tax or assessment imposed on
Beneficiary and measured by or based in whole or in part upon the amount of the outstanding
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obligations secured hereby. Trustor shall pay all Impositions prior to delinquency, all as
contemplated in the Loan Agreement.
Trustor, at its expense, may contest, by appropriate proceedings conducted in
good faith and with due diligence, the amount or validity, in whole or in part, of any Impositions,
provided (i) Trustor shall have notified Authority and Beneficiary prior to the commencement of
such proceedings, (ii) in the case of any unpaid Impositions, such proceedings shall suspend the
collection thereof from Borrower, Beneficiary and the Trust Estate, and shall not constitute a
presently enforceable lien against the Trust Estate during the pendency of such contest, (iii)
neither the Trust Estate nor any part thereof nor any interest therein will be in danger of being
sold, forfeited, terminated, cancelled or lost, (iv) such proceedings shall not have an adverse
effect on the lien or security interest created hereby or upon the enforcement of any provisions of
the Loan Documents, and (v) if Authority or Beneficiary shall so require, Borrower shall have
deposited with Beneficiary such security reasonably necessary for payment of the contested
Impositions, with interest and penalties and Authority's and Beneficiary's expenses.
(b) In the event of the enactment after the date hereof of any law, rule,
ordinance, statute or regulation by the State of California or any political subdivision thereof
deducting from the value of land for the purpose of taxation any lien thereon, or imposing upon
Beneficiary the obligation to pay the whole or any part of the taxes or assessments or charges or
liens herein required to be paid by Trustor, or changing in any way the laws relating to the
taxation of deeds of trust or debts secured by this Deed of Trust or Beneficiary's interest in the
Trust Estate, or any portion thereof, or the manner of collection of taxes, so as to adversely affect
this Deed of Trust or the debt secured hereby, or the Beneficiary or its successors and assigns,
then, and in any such event, Trustor, upon demand by Beneficiary, shall pay such taxes or
assessments, or reimburse Beneficiary therefor; except that if, in the opinion of counsel for
Beneficiary, (i) it might be unlawful to require Trustor to make such payment or (ii) the making
of such payment might result in the imposition of interest beyond the maximum amount
permitted by law, then, and in such event, Beneficiary may elect, by notice in writing given to
Trustor, to declare all of the indebtedness secured hereby to be and become due and payable 60
days from the giving of such notice.
(c) If, by the laws of the United States of America, or of the State of
California or any political subdivision thereof having jurisdiction over Trustor, Beneficiary or
the Trust Estate or any portion thereof, any tax, assessment or other payment is due or becomes
due in respect of the issuance of the Note or the recording of this Deed of Trust, Trustor
covenants and agrees to pay each such tax, assessment or other payment in the manner required
by any such law. Trustor further covenants to defend and hold harmless and agrees to indemnify
Beneficiary, its successors or assigns, against any liability incurred by reason of the imposition
of any tax, assessment or other payment on the issuance of the Note or the recording of this Deed
of Trust.
1.9 Utilities. Trustor shall pay or shall cause to be paid when due all utility charges
which are incurred by Trustor for the benefit of the Land or the Improvements and all other
assessments or charges of a similar nature, whether or not such charges are or may become liens
thereon.
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1.10 Actions Affecting Trust Estate. Trustor shall promptly give Beneficiary written
notice of and shall appear in and contest any action or proceeding purporting to affect any
portion of the Trust Estate or the security hereof or the rights or powers of Beneficiary; and shall
pay all costs and expenses, including the cost of evidence of title and attorneys' fees, in any such
action or proceeding in which Beneficiary may appear.
1.11 Actions By Beneficiary to Preserve Trust Estate. If Trustor fails to make any
payment or to do any act as and in the manner provided in any of the Loan Documents,
Beneficiary, without obligation so to do, without releasing Trustor from any obligation, and
without notice to or demand upon Trustor, may make or do the same in such manner and to such
extent as it may deem necessary to protect the security hereof. In connection therewith (without
limiting their general powers, whether conferred herein, in any other Loan Documents or by
law), Beneficiary shall have and is hereby given the right, but not the obligation, (a) to enter
upon and take possession of the Land and the Improvements; (b) to make additions, alterations,
repairs and improvements to the Land and the Improvements which it may consider necessary or
proper to keep the Land or the Improvements in good condition and repair; (c) to appear and
participate in any action or proceeding affecting or which may affect the security hereof or the
rights or powers of Beneficiary; (d) to pay, purchase, contest or compromise any encumbrance,
claim, charge, lien or debt which in the judgment of either may affect or appears to affect the
security of this Deed of Trust or be prior or superior hereto; and (e) in exercising such powers, to
pay necessary expenses, including attorneys' fees and costs or other necessary or desirable
consultants. Trustor shall, immediately upon demand therefor by Beneficiary,pay to Beneficiary
an amount equal to all respective costs and expenses incurred by such party in connection with
the exercise of the foregoing rights, including, without limitation, costs of evidence of title, court
costs, appraisals, surveys and receiver's, trustee's and attorneys' fees.
1.12 Transfer of Trust Estate by Trustor. In the event of any Transfer (as defined
below) of the Trust Estate, or any portion thereof or interest therein, which is not in accordance
with Section 6.2 of the Loan Agreement, Authority shall have the absolute right at its option,
without prior demand or notice,to declare all sums secured hereby immediately due and payable.
Upon a permitted Transfer under Section 6.2 of the Loan Agreement, the transferee shall assume
all obligations hereunder and agree to be bound by all provisions contained herein. As used
herein, the term "Transfer" means and includes the direct or indirect sale, transfer, conveyance,
assignment, or other alienation of the Trust Estate, or any portion thereof or interest therein,
whether voluntary, involuntary, by operation of law or otherwise, the execution of any
installment land sale contract, sales agreement or similar instrument affecting all or a portion of
the Trust Estate, granting of an option to purchase any portion of or interest in the Trust Estate or
any interest therein, or the lease of all or substantially all of the Land or of all or substantially all
of the Improvements. "Transfer" shall not include the leasing of individual mobile home spaces
acquired by Trustor on the Land so long as Trustor complies with the provisions of the Loan
Agreement and the Regulatory Agreement relating to such leasing activity.
1.13 Survival of Warranties. All representations, warranties and covenants of Trustor
made to Authority and Beneficiary in connection with the loan secured hereby or contained in
the Loan Documents or incorporated by reference therein, shall survive the execution and
delivery of this Deed of Trust and shall remain continuing obligations, warranties and
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representations of Trustor so long as any portion of the obligations secured by this Deed of Trust
remains outstanding.
1.14 Eminent Domain. In the event that any proceeding or action be commenced for
the taking of the Trust Estate, or any part thereof or interest therein, for public or quasi-public
use under the power of eminent domain, condemnation or otherwise, or if the same be taken or
damaged by reason of any public improvement or condemnation proceeding, or in any other
manner, or should Trustor receive any notice or other information regarding such proceeding,
action, taking or damage, Trustor shall give prompt written notice thereof to Beneficiary.
Beneficiary shall be entitled at its option, without regard to the adequacy of its security, to
commence, appear in and prosecute in its own name any such action or proceeding. Beneficiary
shall also be entitled to make any compromise or settlement in connection with such taking or
damage. All compensation, awards, damages, rights of action and proceeds awarded to Trustor
by reason of any such taking or damage (the "Condemnation Proceeds") are hereby assigned to
the Beneficiary, for the benefit of the Project, and Trustor agrees to execute such further
assignments of the Condemnation Proceeds as may be required under the Loan Agreement. The
Beneficiary shall apply all or any of the proceeds it receives to its expenses in settling,
prosecuting or defending any claim and may apply the balance to the Secured Obligations in the
order and for such purposes as provided in the Loan Agreement.
1.15 Additional Security. No other security now existing, or hereafter taken, to secure
the obligations secured hereby shall be impaired or affected by the execution of this Deed of
Trust and all additional security shall be taken, considered and held as cumulative. The taking of
additional security, execution of partial releases of the security, or any extension of the time of
payment of the indebtedness shall not diminish the force, effect or lien of this Deed of Trust and
shall not affect or impair the liability of any maker, surety or endorser for the payment of the
indebtedness. In the event Beneficiary at any time holds additional security for any of the
obligations secured hereby, it may enforce the sale thereof or otherwise realize upon the same, at
its option, either before, concurrently, or after a sale is made hereunder.
1.16 Successors and Assigns. This Deed of Trust applies to, inures to the benefit of
and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors
and assigns. The term "Beneficiary" shall mean the holder of the Note, whether or not named as
Beneficiary herein. In exercising any rights hereunder or taking any actions provided for herein,
Beneficiary may act through its employees, agents or independent contractors authorized by
Beneficiary.
1.17 Inspections. Beneficiary, or its agents, representatives or workers, are authorized
to enter at any reasonable time upon or in any part of the Land and the Improvements for the
purpose of inspecting the same and for the purpose of performing any of the acts it is authorized
to perform hereunder or under the terms of any of the Loan Documents. Without limiting the
generality of the foregoing, Trustor agrees that Beneficiary will have the same right, power and
authority to enter and inspect the Land and the Improvements as is granted to a secured lender
under Section 2929.5 of the California Civil Code, and that Beneficiary will have the right to
appoint a receiver to enforce this right to enter and inspect the Land and the Improvements to the
extent such authority is provided under California law, including the authority given to a secured
lender under Section 564(c) of the California Code of Civil Procedure.
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1.18 Liens. Trustor shall pay and promptly discharge, at Trustor's cost and expense,
all liens, encumbrances and charges ("Liens") upon the Trust Estate, or any part thereof or
interest therein which liens have not been approved in writing by Beneficiary. If Trustor shall
fail to remove and discharge any such lien, encumbrance or charge, then, in addition to any other
right or remedy of Beneficiary, Beneficiary may, but shall not be obligated to, discharge the
same, either by paying the amount claimed to be due, or by procuring the discharge of such lien,
encumbrance or charge by depositing in a court a bond or the amount claimed or otherwise
giving security for such claim, or by procuring such discharge in such manner as is or may be
prescribed by law. Trustor shall, immediately upon demand therefor by Beneficiary, pay to
Beneficiary an amount equal to all costs and expenses incurred by Beneficiary in connection
with the exercise by Beneficiary of the foregoing right to discharge any such lien, encumbrance
or charge, together with interest thereon from the date of such expenditure at the Default Rate.
Trustor, at its expense, may contest, by appropriate proceedings conducted in good faith
and with due diligence, the amount or validity, in whole or in part, of any Lien, provided (i)
Trustor shall have notified Authority and Beneficiary prior to the commencement of such
proceedings, (ii) in the case of any unpaid Lien, such proceedings shall suspend the collection
thereof from Trustor, Beneficiary and the Trust Estate, and shall not constitute a presently
enforceable lien against the Trust Estate during the pendency of such contest, (iii) neither the
Trust Estate nor any part thereof nor any interest therein will be in danger of being sold,
forfeited, terminated, cancelled or lost, (iv) such proceedings shall not have an adverse effect on
the lien or security interest created hereby or upon the enforcement of any provisions of the Loan
Documents, and (v) if Authority or Beneficiary shall so require, Trustor shall have deposited
with Beneficiary such security reasonably necessary for payment of the contested Lien, with
interest and penalties and Authority's and Beneficiary's expenses.
1.19 Trustee's Powers. At any time, or from time to time, without liability therefor
and without notice, upon written request of Beneficiary and presentation of this Deed of Trust
and the Note secured hereby for endorsement, and without affecting the personal liability of any
person for payment of the indebtedness secured hereby or the effect of this Deed of Trust upon
the remainder of the Trust Estate, Trustee may (a) reconvey any part of the Trust Estate, (b)
consent in writing to the making of any map or plat thereof, (c) join in granting any easement
thereon, or(d)join in any extension agreement or any agreement subordinating the lien or charge
hereof.
1.20 Beneficiary's Powers. Without affecting the liability of any other person liable
for the payment of any obligation herein mentioned, and without affecting the lien or charge of
this Deed of Trust upon any portion of the Trust Estate not then or theretofore released as
security for the full amount of all unpaid obligations, Beneficiary may, from time to time and
without notice (a) release any person so liable, (b) extend the maturity or alter any of the terms of
any such obligation, (c) grant other indulgences, (d) release or reconvey, or cause to be released
or reconveyed at any time at Beneficiary's option any parcel, portion or all of the Trust Estate,
(e) take or release any other or additional security for any obligation herein mentioned, or (f)
make compositions or other arrangements with debtors in relation thereto.
1.21 Leasehold. If a leasehold estate constitutes a portion of the Trust Estate, Trustor
agrees not to amend, change, terminate or modify such leasehold estate or any interest therein
OMWEST#12432709 v1 10
without the prior written consent of Beneficiary. Waiver of consent to one amendment, change,
agreement or modification shall not be deemed to be a waiver of the right to require consent to
other, fixture or successive amendments, changes, agreements or modifications. Trustor agrees to
perform all obligations and agreements under the leasehold and shall not take any action or omit
to take any action which would effect or permit the termination of the leasehold. Trustor agrees
to promptly notify Beneficiary in writing with respect to any default or alleged default by any
party thereto and to deliver to Beneficiary copies of all notices, demands, complaints or other
communications received or given by Trustor with respect to any such default or alleged default.
Beneficiary shall have the option to cure any such default and to perform any or all of Trustor's
obligations thereunder. All sums expended by Beneficiary in curing any such default shall be
secured hereby and shall be immediately due and payable without demand or notice.
1.22 Indemni1y. In addition to any other indemnities to Beneficiary specifically
provided for in this Deed of Trust, Trustor hereby indemnifies, and shall defend and save
harmless, Beneficiary and its authorized representatives from and against any and all losses,
liabilities, suits, obligations, fines, damages, penalties, claims, costs, charges and expenses,
including, without limitation, architects', engineers' and attorneys' fees and all disbursements
which may be imposed upon, incurred by or asserted against Beneficiary and its authorized
representative by reason of. (a) the construction of any improvements on the Land, (b) any
capital improvements, other work or things done in, on or about the Land or any part thereof, (c)
any use, nonuse, misuse, possession, occupation, alteration, operation, maintenance or
management of any portion of the Trust Estate or any part thereof or any street, drive, sidewalk,
curb, passageway or space comprising a part thereof or adjacent thereto, (d) any negligence or
willfizl act or omission on the part of Trustor and its agents, contractors, servants, employees,
licensees or invitees, (e) any accident, injury (including death) or damage to any person or
property occurring in, on or about the Land or any part thereof, (f) any lien or claim which may
be alleged to have arisen on, against, or with respect to any portion of the Trust Estate under the
laws of the local or state government or any other governmental or quasi-governmental authority
or any liability asserted against Beneficiary with respect thereto, (g) any tax attributable to the
execution, delivery, filing or recording of this Deed of Trust, the Note or the Loan Agreement,
(h) any contest due to Trustor's actions or failure to act, permitted pursuant to the provisions of
this Deed of Trust, (i) any Default under the Note, this Deed of Trust or the Loan Agreement, or
0) any claim by or liability to any contractor or subcontractor performing work or any party
supplying materials in connection with the Land or the Improvements.
ARTICLE 2
ASSIGNMENT OF LEASES AND RENTS
2.1 Assignment. Trustor hereby irrevocably assigns to Beneficiary all of Trustor's
right, title and interest in, to and under: (a) all leases of the Land or any portion thereof, all
licenses and agreements relating to the management, leasing or operation of the Land or any
portion thereof, and all other agreements of any kind relating to the use or occupancy of the Land
or any portion thereof, whether now existing or entered into after the date hereof("Leases"); and
(b) the Rents, including, without limitation, all amounts payable and all rights and benefits
accruing to Trustor under the Leases. The term "Leases" shall also include all guarantees of and
security for the lessees' performance thereunder, and all amendments, extensions, renewals or
modifications thereto which are permitted hereunder. This is a present and absolute assignment,
DMWEST#12432709 v1 11
not an assignment for security purposes only, and Beneficiary's right to the Leases and Land is
not contingent upon, and may be exercised without possession of, the Land.
2.2 Grant Of License. Beneficiary confers upon Trustor a license ("License") to
collect and retain the Rents as they become due and payable, until the occurrence of a Default(as
hereinafter defined). Upon a Default, the License shall be automatically revoked and
Beneficiary may collect and apply the Rents pursuant to Section 4.2, below, without notice and
without taking possession of the Land. Trustor hereby irrevocably authorizes and directs the
lessees under the Leases to rely upon and comply with any notice or demand by Beneficiary for
the payment to Beneficiary of any rental or other sums which may at any time become due under
the Leases, or for the performance of any of the lessees' undertakings under the Leases, and the
lessees shall have no right or duty to inquire as to whether any Default has actually occurred or is
then existing hereunder. Trustor hereby relieves the lessees from any liability to Trustor by
reason of relying upon and complying with any such notice or demand by Beneficiary.
2.3 Effect Of Assignment. The foregoing irrevocable Assignment shall not cause
Beneficiary to be: (a) a mortgagee in possession; (b) responsible or liable for the control, care,
management or repair of the Land or for performing any of the terms, agreements, undertakings,
obligations, representations, warranties, covenants and conditions of the Leases; or (c)
responsible or liable for any waste committed on the Land by the lessees under any of the Leases
or any other parties; for any dangerous or defective condition of the Land; or for any negligence
in the management, upkeep, repair or control of the Land resulting in loss or injury or death to
any Lessee, licensee, employee, invitee or other person. Beneficiary shall not directly or
indirectly be liable to Trustor or any other person as a consequence of: (i) the exercise or failure
to exercise any of the rights, remedies or powers granted to Beneficiary hereunder; or (ii) the
failure or refusal of Beneficiary to perform or discharge any obligation, duty or liability of
Trustor arising under the Leases.
2.4 Representations And Warranties. Trustor represents and warrants that: (a) the
Schedule of Leases attached hereto as Exhibit B attached hereto and incorporated herein by this
reference is, as of the date hereof, a true, accurate and complete list of all Leases; (b) all existing
Leases are in full force and effect and are enforceable in accordance with their respective terms,
and no breach or default, or event which would constitute a breach or default after notice or the
passage of time, or both, exists under any existing Leases on the part of any party; (c) no rent or
other payment under any existing Lease has been paid by any lessee for more than one (1) month
in advance; and (d) none of the lessor's interests under any of the Leases has been transferred or
assigned.
2.5 Covenants. Trustor covenants and agrees at Trustor's sole cost and expense to:
(a) perform the obligations of lessor contained in the Leases; (b) exercise Trustor's best efforts to
keep all portions of the Land that are currently subject to Leases leased at all times at rentals not
less than the requirements under the Loan Agreement; and (c) execute and record such additional
assignments of any Lease or specific subordinations of any Lease to the Deed of Trust, in form
and substance acceptable to Authority, as Authority may request. Trustor shall not, without
notice to the Oversight Agent: (i) execute any other assignment relating to any of the Leases; or
(ii) subordinate or agree to subordinate any of the Leases to any other deed of trust or
DMWEST#12432709 v1 12
encumbrance. Any such attempted action in violation of the provisions of this Section 2.5 shall
be null and void.
2.6 Estoppel Certificates. Within thirty (30) days after written request by Authority,
Trustor shall deliver to Beneficiary and to any party designated by Authority an estoppel
certificate executed by Trustor, in recordable form, certifying (if such be the case): (a) that the
foregoing assignment and the Leases are in full force and effect; (b) the date of each lessee's
most recent payment of rent; (c) that there are no defenses or offsets outstanding, or stating those
claimed by Trustor or lessees under the foregoing assignment or the Leases, as the case may be;
and (d) any other information reasonably requested by Authority.
ARTICLE 3
SECURITY AGREEMENT AND FIXTURE FILING
3.1 Security Interest. Trustor hereby grants and assigns to Beneficiary a security
interest, to secure payment and performance of all of the Secured Obligations, in all of the
following described personal property in which Trustor now or at any time hereafter has any
interest(collectively, the "Collateral"):
(a) All personal property, including, without limitation, all goods, supplies,
work in process, signs, equipment, furniture, furnishings, fixtures, machinery, inventory and
construction materials which Trustor now or hereafter owns or in which Trustor now or hereafter
acquires an interest or right, including, without limitation, those which are now or hereafter
located on or affixed to the Land and/or Improvements (the Land and the Improvements shall
hereafter be collectively referred to as the "Real Property") or used or useful in the operation, use
or occupancy thereof or the construction of any improvements thereon, including, without
limitation, any interest of Trustor in and to personal property which is leased or subject to any
superior security interest, or which is being manufactured or assembled for later installation into
the improvements to be located or constructed at the Real Property, wherever located, and all
books, records, leases and other documents, of whatever kind or character, relating to the Real
Property;
(b) All fees, income, rents, issues, profits, earnings, receipts, royalties and
revenues which, after the date hereof and while any portion of the indebtedness secured hereby
remains unpaid, may accrue from said goods, fixtures, furnishings, equipment and building
materials or any part thereof or from the Real Property or any part thereof, or which may be
received or receivable by Trustor from any hiring, using, letting, leasing, subhiring, subletting, or
subleasing therefor;
(c) All of Trustor's present and future rights to receive payments of money,
services or property including, without limitation, rights to all deposits from tenants of the Real
Property, accounts receivable, deposit accounts, chattel paper, documents, letters of credit,
hedging or similar agreement, instruments, general intangibles and principal, interest and notes,
drafts, contract rights (including, without limitation, all rights under any interest rate payments
due on account of goods sold, services rendered, loans made or credit extended), together with
title or interest in all documents evidencing or securing the same;
DMWEST#12432709 v1 13
i
(d) All other intangible property and rights relating to the Real Property or the
operation thereof, or used in connection therewith, including but not limited to all governmental
permits relating to construction or other activities on the Real Property, all names under or by
which the Real Property may at any time be operated or known, all rights to carry on business
under any such names, or any variant thereof, all trade names and trademarks relating in any way
to the Real Property, good will in any way relating to the Real Property, and all licenses and
permits relating in any way to, or to the operation of,the Real Property;
(e) All proceeds from sale or disposition of the aforesaid Collateral;
(f) Trustor's rights under all insurance policies covering the Real Property or
any of the aforesaid Collateral (whether or not required by the Loan Documents), and all
proceeds, loss payments and premium refunds payable regarding the same;
(g) All reserves, deferred payments, deposits, refunds, cost savings and
payments of any kind relating to the construction of any Improvements on the Land;
(h) All water stock relating to the Real Property or any portion of it;
(i) All causes of action, claims, compensation and recoveries for any damage
to or condemnation or taking of the Real Property or the aforesaid Collateral, or for any
conveyance in lieu thereof, whether direct or consequential, or for any damage or injury to the
Real Property or the aforesaid Collateral, or for any loss or diminution in value of the Real
Property or the aforesaid Collateral;
0) All architectural, structural, mechanical and engineering plans and
specifications prepared for construction of improvements or extraction of minerals from the Real
Property and all studies, data and drawings relating thereto; and also all contracts and agreements
of the Trustor relating to the aforesaid plans and specifications or to the aforesaid studies, data
and drawings or to the construction of improvements on or extraction of minerals or gravel from
the property;
(k) All Trustor's right, title and interest in any mobile home coaches owned
by Trustor and situated on the Real Property, together with all proceeds from the sale or
disposition of the aforesaid mobile home coach or coaches. Mobilehome coaches owned by
Trustor and situated on the Real Property on the date hereof are listed on Exhibit C hereto.
All terms used herein which are defined in the California Commercial Code shall have
the same meanings when used herein, unless the context requires otherwise.
As to all of the above described personal property which is or which hereafter becomes a
"fixture" under applicable law, this Deed of Trust constitutes a fixture filing under Sections 9313
and 9402(6) of the California Uniform Commercial Code, as amended or recodified from time to
time.
3.2 Representations and Warranties. Trustor represents and warrants that: (a) Trustor
has, or will have, good title to the Collateral; (b) Trustor has not previously assigned or
encumbered the Collateral and no financing statement covering any of the Collateral has been
DMWEST#12432709 v1 14
delivered to any other person or entity, and (c) Trustor's principal place of business is located at
the address shown in Section 6.5.
3.3 Rights of Beneficiary. In addition to Beneficiary's rights as a "Secured Party"
under the California Uniform Commercial Code, as amended or recodified from time to time
("UCC"), Beneficiary may, but shall not be obligated to, at any time without notice and at the
expense of Trustor: (a) give notice to any person of Beneficiary's rights hereunder and enforce
such rights at law or in equity; (b) insure, protect, defend and preserve the Collateral or any
rights or interests of Beneficiary therein; (c) inspect the Collateral; and (d) endorse, collect and
receive any right to payment of money owing to Trustor under or from the Collateral.
Notwithstanding the above, in no event shall Beneficiary be deemed to have accepted any
property other than cash in satisfaction of any obligation of Trustor to Beneficiary unless
Beneficiary shall make an express written election of said remedy under UCC § 9505, or other
applicable law.
3.4 Rights of Beneficiary on Default. Upon the occurrence of a Default under this
Deed of Trust, then in addition to all of Beneficiary's rights as a "Secured Party" under the UCC
or otherwise at law:
(a) Beneficiary may (i) upon written notice, require Trustor to assemble any
or all of the Collateral and make it available to Beneficiary at a place designated by Beneficiary;
(ii) without prior notice, enter upon the Real Property or other place where any of the Collateral
may be located and take possession of, collect, sell, and dispose of any or all of the Collateral,
and store the same at locations acceptable to Beneficiary at Trustor's expense; (iii) sell, assign
and deliver at any place or in any lawful manner all or any part of the Collateral and bid and
become purchaser of any such sales; and
(b) Beneficiary may, for the account of Trustor and at Trustor's expense: (i)
operate, use, consume, sell or dispose of the Collateral as Beneficiary deems appropriate for the
purpose of performing any or all of the Secured Obligations; (ii) enter into any agreement,
compromise, or settlement, including insurance claims, which Beneficiary may deem desirable
or proper with respect to any of the Collateral; and (iii) endorse and deliver evidences of title for,
and receive, enforce and collect by legal action or otherwise, all indebtedness and obligations
now or hereafter owing to Trustor in connection with or on account of any or all of the
Collateral.
Notwithstanding any other provision hereof, Beneficiary shall not be deemed to have
accepted any property other than cash in satisfaction of any obligation of Trustor to Beneficiary
unless Trustor shall make an express written election of said remedy under UCC § 9505, or other
applicable law.
3.5 Power of Attorney. Trustor hereby irrevocably appoints Beneficiary as Trustor's
attorney-in-fact (such agency being coupled with an interest), and as such attorney-in-fact
Beneficiary may, without the obligation to do so, in Beneficiary's name, or in the name of
Trustor, prepare, execute and file or record financing statements, continuation statements,
applications for registration and like papers necessary to create, perfect or preserve any of
Beneficiary's security interests and rights in or to any of the Collateral, and, upon a Default
DMWEST#12432709 v1 15
hereunder, take any other action required of Trustor; provided, however,that Beneficiary as such
attorney-in-fact shall be accountable only for such funds as are actually received by Beneficiary.
3.6 Possession and Use of Collateral. Except as otherwise provided in this Section or
other Loan Documents, so long as no Default exists under this Deed of Trust or any of the Loan
Documents, Trustor may possess, use, move, transfer or dispose of any of the Collateral in the
ordinary course of Trustor's business and in accordance with the Loan Agreement.
ARTICLE 4
REMEDIES UPON DEFAULT
4.1 Events of Default. For all purposes hereof, the term "Default" shall mean (a) the
failure of Trustor to make any payment of principal or interest on the Note or, at Beneficiary's
option, to pay any other amount due hereunder or under the Note when the same is due and
payable, whether at maturity, by acceleration or otherwise; (b) the failure of Trustor to perform
any non-monetary obligation hereunder, or the failure to be true of any representation or
warranty of Trustor contained herein, and the continuance of such failure for ten (10) days after
notice, or within any longer grace period, if any allowed in the Loan Agreement for such failure,
or (c) the existence of any default, including an Event of Default, as defined therein, under the
Loan Agreement, subject to any cure or grace period allowed under the Loan Agreement.
4.2 Acceleration Upon Default, Additional Remedies. Upon the occurrence of a
Default, Beneficiary may, at its option, declare all indebtedness secured hereby to be
immediately due and payable without any presentment, demand, protest or notice of any kind.
Thereafter Beneficiary may:
(a) Either in person or by agent, with or without bringing any action or
proceeding, or by a receiver appointed by a court and without regard to the adequacy of its
security, enter upon and take possession of the Land or the Improvements, or any part thereof, in
its own name or in the name of Trustee, and do any acts which it deems necessary or desirable to
preserve the value, marketability or rentability of any portion of the Trust Estate, including,
without limitation (i) taking possession of Trustor's books and records, (ii) completing the
rehabilitation of the Improvements, (iii) maintaining or repairing the Improvements or any other
portion of the Trust Estate, (iv) increasing the income from the Trust Estate, with or without
taking possession of the Land or the Improvements, (v) entering into, modifying, or enforcing
any Leases, (vi) suing for or otherwise collecting the Rents or other amounts owing to Trustor,
including those past due and unpaid, and (vii) applying the same, less costs and expenses of
operation and collection including, without limitation, attorneys' fees, upon any indebtedness
secured hereby, all in such order as Beneficiary may determine. The entering upon and taking
possession of the Land or the Improvements, the collection of such Rents and the application
thereof as provided above, shall not cure or waive any Default or notice of default hereunder;
(b) Enforce all of the rights and remedies of an assignee for turnover of rents,
issues and profits under Section 2938 of the California Civil Code, as such Section may be
amended from time to time;
DMWEST#12432709 v1 16
i
(c) Commence an action to foreclose this Deed of Trust as a mortgage,
appoint a receiver, or specifically enforce any of the covenants hereof;
(d) Deliver to Trustee a written declaration of default and demand for sale and
a written notice of default and election to cause Trustor's interest in the Trust Estate to be sold,
which notice Trustee or Beneficiary shall cause to be duly filed of record in the Official Records
of the County in which the Landis located; or
(e) Exercise all other rights and remedies provided herein, in any Loan
Document or other document or agreement now or hereafter securing all or any portion of the
obligations secured hereby, or by law.
4.3 Foreclosure by Power of Sale. Should Beneficiary elect to foreclose by exercise
of the power of sale herein contained, Beneficiary shall notify Trustee and shall deposit with
Trustee this Deed of Trust and the Note and such receipts and evidence of expenditures made
and secured hereby as Trustee may require.
(a) Beneficiary or Trustee shall give such notice of default and election to sell
as is then required by applicable law. Trustee shall, without demand on Trustor, after lapse of
such time as may then be required by law and after recordation of such notice of default and after
notice of sale having been given as required by law, sell the Trust Estate at the time and place of
sale fixed by it in the notice of sale, either as a whole, or in separate lots or parcels or items as
Beneficiary shall deem expedient, 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 the time of sale. Trustee
shall deliver to such purchaser or purchasers thereof a trustee's deed conveying the property so
sold, which shall not contain any covenant or warranty, express or implied. The recitals in such
deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person,
including, without limitation, Trustor, Trustee or Beneficiary, may purchase at such sale and
Beneficiary shall be entitled to pay the purchase price by crediting the purchase price of the
property against the obligations secured hereby. Trustor hereby covenants to warrant and defend
the title of such purchaser or purchasers.
(b) After deducting all costs, fees and expenses of Trustee and of this trust,
including costs of evidence of title in connection with sale, Trustee shall apply the proceeds of
sale in the following priority, to payment of. (i) first, all sums expended under the terms hereof,
not then repaid; (ii) second, all other sums then secured hereby; and (iii) the remainder, if any, to
the person or persons legally entitled thereto.
(c) Subject to California Civil Code § 2924(g), Trustee may postpone sale of
all or any portion of the Trust Estate by public announcement at such time and place of sale, and
from time to time thereafter may postpone such sale by public announcement or subsequently
noticed sale, and without further notice make such sale at the time fixed by the last
postponement, or may, in its discretion, give a new notice of sale.
4.4 Personal Property. Pursuant to Article 3 above, Trustor has executed and
delivered to Beneficiary a Security Agreement with respect to certain Collateral described
therein. Upon the occurrence of a Default, Beneficiary may proceed at its election, in any
DMWEST#12432709 v1 17
sequence: (a) to dispose of any Collateral separately from the sale of real property in accordance
with Division 9 of the California Commercial Code or other applicable law; and (b) to dispose of
some or all of the Trust Estate and the Collateral in any combination consisting of both real and
personal property together in one or more sales to be held in accordance with the provisions of
Section 9501(4) of the California Commercial Code.
4.5 Appointment of Receiver. Upon the occurrence of a Default hereunder,
Beneficiary, as a matter of right and without notice to Trustor or anyone claiming under Trustor,
and without regard to the then value of the Trust Estate or the adequacy for any security for the
obligations then secured hereby, shall have the right to apply to any court having jurisdiction to
appoint a receiver or receivers of the Trust Estate, and Trustor hereby irrevocably consents to
such appointment and waives notice of any application therefor. Any such receiver or receivers
shall have all the usual powers and duties of receivers in like or similar cases and all the powers
and duties of Beneficiary in case of entry as provided herein.
4.6 Remedies Not Exclusive. Trustee and Beneficiary, and each of them, shall be
entitled to enforce payment and performance of any indebtedness or obligations secured hereby
and to exercise all rights and powers under this Deed of Trust or under any Loan Document or
other agreement or any laws now or hereafter in force, notwithstanding some or all of the
indebtedness and obligations secured hereby may now or hereafter be otherwise secured,
whether by mortgage, deed of trust, pledge, lien, assignment or otherwise. Neither the
acceptance of this Deed of Trust nor its enforcement whether by court action or pursuant to the
power of sale or other powers herein contained, shall prejudice or in any manner affect Trustee's
or Beneficiary's right to realize upon or enforce any other security now or hereafter held by
Trustee or Beneficiary, it being agreed that Trustee and Beneficiary, and each of them, shall be
entitled to enforce this Deed of Trust and any other security now or hereafter held by Beneficiary
or Trustee in such order and manner as they or either of them may in their absolute discretion
determine. 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 any of the Loan
Documents to Trustee or Beneficiary or to which either 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 either of them may pursue inconsistent remedies.
4.7 Request for Notice. Trustor hereby requests a copy of any notice of default and
that any notice of sale hereunder be mailed to it at the address set forth in Section 6.5 of this
Deed of Trust.
4.8 Forbearance by Lender Not a Waiver. Any forbearance by Beneficiary in
exercising any right or remedy hereunder, or otherwise afforded by applicable law, shall not be a
waiver of or preclude the exercise of any right or remedy. The acceptance by Beneficiary of
payment of any sum secured by this Deed of Trust after the due date of such payment shall not
be a waiver of Beneficiary's right either to require prompt payment when due of all other sums
so secured or to declare a Default for failure to make prompt payment. The procurement of
insurance or the payment of taxes or other liens or charges by Beneficiary shall not be a waiver
of Beneficiary's right to accelerate the maturity of the indebtedness secured by this Deed of
DMWEST#12432709 v1 18
Trust nor shall Beneficiary's receipt of any awards, proceeds or damages under this Deed of
Trust operate to cure or waive any Default with respect to any payment secured by this Deed of
Trust.
ARTICLE 5
HAZARDOUS MATERIALS
5.1 Special Representations And Warranties. Without in any way limiting the other
representations and warranties set forth in this Deed of Trust, and after reasonable investigation
and inquiry, Trustor hereby specially represents and warrants to the best of Trustor's knowledge
as of the date of this Deed of Trust as follows:
5.2 Hazardous Materials. Except as previously disclosed to Beneficiary, to the best of
Trustor's knowledge, the Real Property is not and has not been a site for the use, generation,
manufacture, storage, treatment, release, threatened release, discharge, disposal, transportation or
presence of any oil, flammable explosives, asbestos, urea formaldehyde insulation, radioactive
materials, hazardous wastes, toxic or contaminated substances or similar materials, including,
without limitation, any substances which are "hazardous substances," "hazardous wastes,"
"hazardous materials" or "toxic substances" under the Hazardous Materials Laws, as described
below, and/or other applicable environmental laws, ordinances and regulations (collectively, the
"Hazardous Materials"). "Hazardous Materials" shall not include commercially reasonable
amounts of such materials used in the ordinary course of operation of the Real Property which
are used and stored in accordance with all applicable environmental laws, ordinances and
regulations.
5.3 Hazardous Materials Laws. The Real Property is in compliance with all laws,
ordinances and regulations relating to Hazardous Materials ("Hazardous Materials Laws"),
including, without limitation: the Clean Air Act, as amended, 42 U.S.C. Section 7401 et seq.;
the Federal Water Pollution Control Act, as amended, 33 U.S.C. Section 1251 et seq.; the
Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. Section 6901 et seq.;
the Comprehensive Environment Response, Compensation and Liability Act of 1980, as
amended (including the Superfund Amendments and Reauthorization Act of 1986, "CERCLA"),
42 U.S.C. Section 9601 et seq.; the Toxic Substances Control Act, as amended, 15 U.S.C.
Section 2601 et seq.; the Occupational Safety and Health Act, as amended, 29 U.S.C. Section
651, the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Section
11001 et seq.; the Mine Safety and Health Act of 1977, as amended, 30 U.S.C. Section 801 et
seq.; the Safe Drinking Water Act, as amended, 42 U.S.C. Section 300f et seq.; and all
comparable state and local laws, laws of other jurisdictions or orders and regulations.
5.4 Hazardous Materials Claims. There are no claims or actions ("Hazardous
Materials Claims") pending or threatened against Trustor or the Real .Property by any
governmental entity or agency or by any other person or entity relating to Hazardous Materials
or pursuant to the Hazardous Materials Laws.
5.5 Border Zone Property. The Real Property has not been designated as Border
Zone Property under the provisions of California Health and Safety Code, Sections 25220 et seq.
and there has been no occurrence or condition on any real property adjoining or in the vicinity of
DMWEST#12432709 v1 19
the Real Property that could cause the Real Property or any part thereof to be designated as
Border Zone Property.
5.6 Hazardous Materials Covenants. Trustor agrees as follows:
(a) No Hazardous Activities. Trustor shall not cause or permit the Real
Property to be used as a site for the use, generation, manufacture, storage, treatment, release,
discharge, disposal, transportation or presence of any Hazardous Materials.
(b) Compliance. Trustor shall comply and cause the Real Property to comply
with all Hazardous Materials Laws.
(c) Notices. Trustor shall immediately notify Beneficiary in writing of: (i)
the discovery of any Hazardous Materials on, under or about the Real Property; (ii) any
knowledge by Trustor that the Real Property does not comply with any Hazardous Materials
Laws; (iii) any Hazardous Materials Claims; and (iv) the discovery of any occurrence or
condition on any real property adjoining or in the vicinity of the Real Property that could cause
the Real Property or any part thereof to be designated as Border Zone Property.
(d) Remedial Action. In response to the presence of any Hazardous Materials
on, under or about the Real Property, Trustor shall immediately take, at Trustor `s sole expense,
all remedial action required by any Hazardous Materials Laws or any judgment, consent decree,
settlement or compromise in respect to any Hazardous Materials Claims.
5.7 Inspection By Beneficiary. Upon reasonable prior notice to Trustor, Beneficiary,
its employees and agents, may from time to time (whether before or after the commencement of
a nonjudicial or judicial foreclosure proceeding) enter and inspect the Real Property for the
purpose of determining the existence, location, nature and magnitude of any past or present
release or threatened release of any hazardous substance into, onto, beneath or from the Real
Property.
5.8 Hazardous Materials Indemnity. Trustor hereby agrees to defend, indemnify and
hold harmless Beneficiary, its directors, officers, employees, agents, successors and assigns from
and against any and all losses, damages, liabilities, claims, actions, judgments, court costs and
legal or other expenses (including, without limitation, attorneys' fees and expenses) which
Beneficiary may incur as a direct or indirect consequence of the use, generation, manufacture,
storage, disposal, threatened disposal, transportation or presence of Hazardous Materials in, on,
under or about the Real Property. Trustor shall immediately pay to Beneficiary upon demand
any amounts owing under this indemnity, together with interest from the date the indebtedness
arises until paid at the Default Rate. TRUSTOR'S DUTY AND OBLIGATIONS TO DEFEND,
INDEMNIFY AND HOLD HARMLESS BENEFICIARY SHALL SURVIVE THE RELEASE,
RECONVEYANCE OR PARTIAL RECONVEYANCE OF THIS DEED OF TRUST.
5.9 Legal Effect Of Section. Trustor and Beneficiary agree that: (a) this Article 5 is
intended as Beneficiary's written request for information (and Trustor's response) concerning the
environmental condition of the real property security as required by California Code of Civil
Procedure §726.5; and (b) each provision in this Article (together with any indemnity applicable
to a breach of any such provision) with respect to the environmental condition of the real
DMWEST#12432709 vi 20
property security is intended by Beneficiary and Trustor to be an "environmental provision" for
purposes of California Code of Civil Procedure §736, and as such it is expressly understood that
Trustor's duty to indemnify Beneficiary hereunder shall survive: (a) any judicial or non judicial
foreclosure under this Deed of Trust, or transfer of the Real Property in lieu thereof, and (b) the
release and reconveyance or cancellation of this Deed of Trust.
ARTICLE 6
MISCELLANEOUS
6.1 Amendments. This instrument cannot be waived, changed, discharged or
terminated orally, but only by an instrument in writing signed by the party against whom
enforcement of any waiver, change, discharge or termination is sought.
6.2 Trustor Waiver of Rights. Trustor waives to the extent permitted by law, (a) the
benefit of all laws now existing or that may hereafter be enacted providing for any appraisement
before sale of any portion of the Trust Estate, (b) all rights of redemption, valuation,
appraisement, stay of execution, notice of election to mature or declare due the whole of the
secured indebtedness and marshalling in the event of foreclosure of the liens hereby created, (c)
all rights and remedies which Trustor may have or be able to assert by reason of the laws of the
State of California pertaining to the rights and remedies of sureties, (d) the right to assert any
statute of limitations as a bar to the enforcement of the lien of this Deed of Trust or to any action
brought to enforce the Note or any other obligation secured by this Deed of Trust, and (e) any
rights, legal or equitable, to require marshalling of assets or to require upon foreclosure sales in a
particular order, including any rights under California Civil Code Sections 2899 and 3433.
Beneficiary shall have the right to determine the order in which any or all of the Trust Estate
shall be subjected to the remedies provided herein. Beneficiary shall have the right to determine
the order in which any or all portions of the indebtedness secured hereby are satisfied from the
proceeds realized upon the exercise of the remedies provided herein. Nothing contained herein
shall be deemed to be a waiver of Trustor's rights under Section 2924(c) of the California Civil
Code.
6.3 Statements by Trustor. Trustor shall, within 10 days after written notice thereof
from Beneficiary, deliver to Beneficiary a written statement, fully acknowledged, stating the
unpaid principal of and interest on the Note and any other amounts secured by this Deed of Trust
and stating whether any offset, counterclaim or defense exists against such sums and the
obligations of the Deed of Trust.
6.4 Loan Statement Fees. Trustor shall pay the amount demanded by Beneficiary or
its authorized loan servicing agent for any statement regarding the obligations secured hereby;
provided, however, that such amount may not exceed the maximum amount allowed by law at
the time request for the statement is made.
6.5 Notices. All notices and demands given under the terms hereof shall be in writing
and may be effected by personal delivery, including by any commercial courier or overnight
delivery service, or by United States registered or certified mail, return receipt requested, with all
postage and fees fully prepaid. Notices shall be effective upon receipt by the party being given
notice, as indicated by the return receipt if mailed; except that if a party has relocated without
DMWEST#12432709 v1 21
providing the other party with its new address for service of notices, or if a party refuses delivery
of a notice upon its tender, the notice shall be effective upon the attempt to serve the notice at the
last address given for service of notices upon that party. Alternatively, notices may be served by
facsimile transmission, in which case service shall be deemed effective only upon receipt by the
party serving the notice of telephonic or return facsimile transmission confirmation that the party
to whom the notice is directed has received a complete and legible copy of the notice. Notices
shall be addressed as follows:
If to Trustee: First American Title Insurance Company
5 First American Way
Santa Ana, California 92707
If to Trustor: Millennium Housing, LLC
20 Pacifica, Suite 1470
Irvine, California 92618
Attn: George Turk
If to Beneficiary: MUFG Union Bank,N.A.
120 S. San Pedro St., Ste. 400
Los Angeles, CA 90012
Attn: Corporate Trust Department
If to Authority: Independent Cities Finance Authority
Post Office Box 6740
Lancaster, California 93539-6740
Attention: Executive Director
Any address for service of notice on any party may be changed by that party serving a
notice upon the other of the new address, except that any change of address to a post office box
shall not be effective unless a street address is also specified for use in effectuating personal
service.
6.6 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.
6.7 Captions. The captions or headings at the beginning of each Section hereof are
for the convenience of the parties and are not a part of this Deed of Trust.
6.8 Invalidity of Certain Provisions. Every provision of this Deed of Trust is intended
to be severable. In the event any term or provision hereof is declared to be illegal, invalid or
unenforceable for any reason whatsoever by a court of competent jurisdiction, such illegality or
invalidity shall not affect the balance of the terms and provisions hereof, which terms and
provisions shall remain binding and enforceable.
6.9 Subrogation. To the extent that proceeds of the Note are used to pay any out
standing lien, charge or prior encumbrance against the Trust Estate, such proceeds have been or
will be advanced by Beneficiary at Trustor's request and Beneficiary shall be subrogated to any
DMWEST#12432709 v1 22
and all rights and liens held by any Owner or holder of such outstanding liens, charges and prior
encumbrances, irrespective of whether the liens, charges or encumbrances are released.
6.10 Attorneys' Fees. If the Note is not paid when due or if any Default occurs,
Trustor promises to pay all costs of enforcement and collection, including but not limited to,
reasonable attorneys' fees, whether or not such enforcement and collection includes the filing of
a lawsuit. As used herein, the terms "attorneys' fees" or "attorneys' fees and costs" shall mean
the fees and expenses of counsel to the parties hereto (including, without limitation, in-house
counsel employed by Beneficiary) which may include printing, duplicating and other expenses,
air freight charges, and fees billed for law clerks, paralegals and others not admitted to the bar
but performing services under the supervision of an attorney. The terms "attorneys' fees" or
"attorneys' fees and costs" shall also include, without limitation, all such fees and expenses
incurred with respect to appeals, arbitrations and bankruptcy proceedings, and whether or not
any action or proceeding is brought with respect to the matter for which said fees and expenses
were incurred.
6.11 No Merger of Lease. If both the lessor's and lessee's estate under any lease or
any portion thereof which now or hereafter constitutes a part of the Trust Estate shall at any time
become vested in one Borrower, this Deed of Trust and the lien created hereby shall not be
destroyed or terminated by application of the doctrine of merger unless Beneficiary so elects as
evidenced by recording a written declaration so stating, and, unless and until Beneficiary so
elects, Beneficiary shall continue to have and enjoy all of the rights and privileges of Beneficiary
as to the separate estates. In addition, upon the foreclosure of the lien created by this Deed of
Trust on the Trust Estate pursuant to the provisions hereof, any leases or subleases then existing
and affecting all or any portion of the Trust Estate shall not be destroyed or terminated by
application of the law of merger or as a matter of law or as a result of such foreclosure unless
Beneficiary or any purchaser at such foreclosure sale shall so elect. No act by or on behalf of
Beneficiary or any such purchaser shall constitute a termination of any lease or sublease unless
Beneficiary or such purchaser shall give written notice thereof to such tenant or subtenant.
6.12 Governiniz Law. This Deed of Trust shall be governed by and construed in
accordance with the laws of the State of California.
6.13 Joint and Several Obligations._ Should this Deed of Trust be signed by more than
one party, all obligations herein contained shall be deemed to be the joint and several obligations
of each party executing this Deed of Trust. Any married person signing this Deed of Trust
agrees that recourse may be had against community assets and against his or her separate
property for the satisfaction of all obligations contained herein.
6.14 Interpretation. In this Deed of Trust the singular shall include the plural and the
masculine shall include the feminine and neuter and vice versa, if the context so requires.
6.15 Reconveyance by Trustee. Upon written request of Beneficiary stating that all
sums secured hereby have been paid, and upon surrender of this Deed of Trust and the Note to
Trustee for cancellation and retention and upon payment by Trustor of Trustee's fees, Trustee
shall reconvey to Trustor, or to the person or persons legally entitled thereto, without warranty,
any portion of the Trust Estate then held hereunder. The recitals in such reconveyance of any
DMWEST#12432709 v1 23
matters or facts shall be conclusive proof of the truthfulness thereof. The grantee in any
reconveyance may be described as "the person or persons legally entitled thereto." Such grantee
shall pay Trustee a reasonable fee and Trustee's costs incurred in so reconveying the Trust
Estate.
6.16 Counterparts. This document may be executed and acknowledged in
counterparts, all of which executed and acknowledged counterparts shall together constitute a
single document. Signature and acknowledgment pages may be detached from the counterparts
and attached to a single copy of this document to physically form one document, which may be
recorded.
6.17 Nonforeign Entity. Section 1445 of the Internal Revenue Code of 1986, as
amended (the "Code") and Sections 18805, 18815 and 26131, as applicable, of the California
Revenue and Taxation Code ("CRTC") provide that a transferee of a U.S. real property interest
must withhold tax, in the case of the Code, if the transferor is a foreign person, or if, in the case
of the CRTC, the transferor is not a California resident. To inform Beneficiary that the
withholding of tax will not be required in the event of the disposition of the Land or the
Improvements, or any portion thereof or interest therein, pursuant to the terms of this Deed of
Trust, Trustor hereby certifies, under penalty of perjury, that: (a) Trustor is not a foreign
corporation, foreign partnership, foreign trust or foreign estate, as those terms are defined in the
Code and the regulations promulgated thereunder; and (b) Trustor's U.S. employer identification
number is 90-0743542; and (c) Trustor's principal place of business is 20 Pacifica, Suite 1470,
Irvine, California 92618. It is understood that Beneficiary may disclose the contents of this
certification to the Internal Revenue Service and the California Franchise Tax Board, and that
any false statement contained herein could be punished by fine, imprisonment or both. Trustor
covenants and agrees to execute such further certificates, which shall be signed under penalty of
perjury, as Beneficiary shall reasonably require. The covenant set forth herein shall survive the
foreclosure of the lien of this Deed of Trust or acceptance of a deed in lieu thereof.
6.18 Substitute Trustee. Beneficiary at any time and from time to time, by instrument
in writing, may substitute and appoint a successor Trustee (either corporate or individual) to any
Trustee named herein or previously substituted hereunder, which instrument when executed,
acknowledged, and recorded in the Official Records of the Office of the Recorder of the County
of Orange shall be conclusive proof of the proper substitution and appointment of each successor
trustee or trustees, who shall then have all the title, powers, duties and rights of the predecessor
Trustee, without the necessity of any conveyance from such predecessor. Trustee shall not be
obligated to notify any party hereto of pending sale under any other deed of trust, or, unless
brought by Trustee, or any action or proceeding in which Trustor, Beneficiary or Trustee shall be
a party.
6.19 Waiver of Jury Trial. TO THE EXTENT PERMITTED BY LAW, TRUSTOR
AND BENEFICIARY EACH HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN
ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER
THIS DEED OF TRUST OR ANY OTHER LOAN DOCUMENTS OR RELATING THERETO
OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THE
LOAN AGREEMENT AND AGREE THAT ANY SUCH ACTION OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
DMWEST#12432709 A 24
6.20 Limitation on Liability. Beneficiary's recovery against Trustor shall be limited
solely to the collateral given to Beneficiary as security for Trustor's performance under the Loan
Documents. Such recovery shall not be a lien, or the basis of a claim of lien or levy or
execution, against the general assets of the Trustor. Notwithstanding the foregoing, the Trustor
and the general assets of the Trustor shall be fully liable to Beneficiary to the same extent that
Trustor would be liable absent the foregoing limitation of this paragraph for damages and loss
attributable to: (a) fraud or willful misrepresentation on the part of Trustor; (b) waste; (c) failure
of the corporation to pay any income or other taxes, assessments or other charges attributable to
Trustor which can create liens on any portion of the Land and the Improvements (to the full
extent of any such taxes, assessments or other charges); or (d) any breach by Trustor of any
covenant, representation or warranty under Article V of this Deed of Trust. In addition, the
limitations hereof shall not be deemed to limit: (i) any right Beneficiary might otherwise have to
obtain injunctive relief against Trustor; (ii) any suit or action in connection with the preservation,
enforcement or foreclosure of the liens, mortgages, assignments and security interests now or at
any time hereafter securing the payment and performance of all obligations under this Deed of
Trust or any of the Loan Documents; or (iii) the collection of amounts which may become owing
or payable under or on account of insurance, condemnation awards or damages for other public
actions or surety bonds maintained or provided by Trustor; provided however, that the assertion
by Beneficiary of any such right, suit, action or collection of amounts shall not result in a
monetary claim upon the general assets of Trustor except as otherwise provided herein.
6.21 Nondiscrimination. The Trustor covenants by and for itself and its successors and
assigns, and all persons claiming under or through it, and this Deed of Trust is made and
accepted upon and subject to the condition that there shall be no discrimination against or
segregation of any person or group of persons, on account of race, color, creed, religion, sex,
marital status, national origin, or ancestry, in the leasing, subleasing, transferring, use,
occupancy, tenure, or enjoyment of the premises nor shall the lessee himself, or any person
claiming under or through him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use, or
occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the premises described in
this Deed of Trust.
6.22 Concerning the Beneficiary. To the extent the Beneficiary hereunder is MUFG
Union Bank, N.A., as Indenture Trustee, or any successor thereto, all provisions of the Indenture
relating to the rights, powers, privileges and protections of the Indenture Trustee thereunder shall
apply with equal force and effect to all actions taken by the Indenture Trustee as Beneficiary in
connection with this Deed of Trust. No duties or obligations shall be imposed upon Indenture
Trustee as Beneficiary beyond those contained in the Indenture. It is understood and
acknowledged that the Indenture Trustee as Beneficiary is not required to exercise any rights or
discretion granted to it hereunder and all rights to consent, direct and approve matters granted
herein to the Beneficiary are subject to the provisions of the Indenture and the rights afforded to
the Indenture Trustee thereunder.
The foregoing provision shall be binding upon and shall obligate the Trustor and any
successors or other transferees under this Deed of Trust.
DMWEST#12432709 v1 25
TRUSTOR ACKNOWLEDGES RECEIPT OF A TRUE COPY OF THIS DEED OF
TRUST WITHOUT CHARGE.
TRUSTOR PLEASE NOTE: UPON THE OCCURRENCE OF A DEFAULT,
CALIFORNIA PROCEDURE PERMITS TRUSTEE TO SELL THE TRUST ESTATE AT A
SALE HELD WITHOUT SUPERVISION BY ANY COURT AFTER EXPIRATION OF A
PERIOD PRESCRIBED BY LAW. UNLESS YOU PROVIDE AN ADDRESS FOR THE
GIVING OF NOTICE, YOU MAY NOT BE ENTITLED TO NOTICE OF THE
COMMENCEMENT OF ANY SALE PROCEEDINGS. BY EXECUTION OF THIS DEED
OF TRUST, YOU CONSENT TO SUCH PROCEDURE. BENEFICIARY URGES YOU TO
GIVE PROMPT NOTICE OF ANY CHANGE IN YOUR ADDRESS SO THAT YOU MAY
RECEIVE PROMPTLY ANY NOTICE GIVEN PURSUANT TO THIS DEED OF TRUST.
s
i
OMWEST#12432709 A 26
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust With Absolute
Assignment of Leases and Rents, Security Agreement and Fixture Filing as of the day and year
first above written.
MILLENNIUM HOUSING, LLC,
a California limited liability company
By: Millennium Housing Corporation,
a California nonprofit public benefit corporation, its
Sole Member
By:
Lorraine M. Carraway, Vice President
i
S-1 f
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA )
COUNTY OA--0SArl:�00-5 )
On — g a 5 before me, KQV*'kQqNf)Q--.,rY7 5;j a
Notary Public, personally appeared Lorraine M. Carraway who proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within instrument and
acknowledged to me that she executed the same in her authorized capacity, and that by her
signature on the instrument the person, or the entity upon behalf of which the person 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.
4
Signature — (Seal)
MARIANNE FROST
Commission#f 1986601,
Notary Public-California
Los Angeles County
M Comm.Expires Jul 29.2016
4
N-1
EXHIBIT A
LEGAL DESCRIPTION OF LAND
The real property is situated in the City of San Juan Capistrano, County of
Orange, State of California, and is described as follows:
I
DMWEST#12432709 v1 A-1
Exhibit "A"
Legal Description
Real property in the City of San Juan Capistrano, County of Orange, State of California, described as
follows:
PARCEL 3 OF PARCEL MAPS, IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS PER MAP FILED IN BOOK 62, PAGE 19 OF PARCEL MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
SAID LAND IS ALSO BEING A PORTION OF THE FOLLOWING DESCRIBED PARCELS "A" AND "B".
PARCEL A:
BEING THOSE PORTIONS OF LOTS 60, 61 AND 62 OF TRACT NO. 103, IN THE CITY OF SAN JUAN
CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 11,
PAGES 29 THROUGH 33 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE NORTHWESTERLY LINE OF SAID LOT 61, LYING NORTH 21° 40,07"
EAST 4.78 FEET FROM THE WESTERLY CORNER OF SAID LOT 61; THENCE NORTH 89° 58' 18" EAST
564.75 FEET TO THE WESTERLY LINE OF THE LAND DESCRIBED AS PARCEL 101, IN THE DEED TO THE
ORANGE COUNTY FLOOD CONTROL DISTRICT, RECORDED JUNE 28, 1963 IN BOOK 6609, PAGE 371 OF
OFFICIAL RECORDS OF SAID COUNTY; THENCE ALONG SAID WESTERLY LINE, SOUTH 31 04'46" WEST
1045.00 FEET TO A POINT LYING NORTH 30 04'46" EAST 583.39 FEET FROM THE SOUTHERLY LINE OF
SAID LOT 62; THENCE SOUTH 890 58' 18" WEST 548.34 FEET; THENCE NORTH 440 01' 54"WEST
687.07 FEET TO THE NORTHWESTERLY LINE OF SAID LOT 62; THENCE ALONG SAID LAST MENTIONED
NORTHWESTERLY LINE, NORTH
420 14'44" EAST 743.84 FEET TO THE NORTHEASTERLY LINE OF SAID LOT 62; THENCE ALONG SAID
NORTHEASTERLY LINE, SOUTH 70° 07'46" EAST 16.40 FEET TO SAID NORTHWESTERLY LINE OF LOT
61; THENCE ALONG SAID LAST MENTIONED NORTHWESTERLY LINE, NORTH 210 40'07" EAST 4.78
FEET TO THE POINT OF BEGINNING.
PARCEL B:
BEING THOSE PORTIONS OF LOTS 60 AND 62 OF TRACT NO. 103, IN THE CITY OF SAN JUAN
CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 11,
PAGES 29 THROUGH 33 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE WESTERLY LINE OF THE LAND DESCRIBED AS PARCEL 101,
IN THE DEED TO ORANGE COUNTY FLOOD CONTROL DISTRICT, RECORDED JUNE 28, 1963 IN BOOK
6609, PAGE 371 OF OFFICIAL RECORDS OF SAID COUNTY, WITH THE SOUTHERLY LINE OF SAID LOT
62; THENCE ALONG SAID WESTERLY LINE, NORTH 30 04'46" EAST 583.39 FEET; THENCE SOUTH 890
58' 18" WEST 548.34 FEET; THENCE NORTH 440 01' 54" WEST 687.07 FEET TO THE NORTHWESTERLY
LINE OF SAID LOT 62; THENCE ALONG SAID NORTHWESTERLY LINE, SOUTH 420 14'44" WEST 290.73
FEET AND SOUTH 360 58' 16" WEST 302.19 FEET TO THE SOUTHWESTERLY LINE OF SAID LOT 62;
THENCE ALONG SAID SOUTHWESTERLY LINE, SOUTH 44° 01'54" EAST 862.34 FEET TO SAID
SOUTHERLY LINE;
THENCE ALONG SAID SOUTHERLY LINE, NORTH 89° 58' 18" EAST 772.38 FEET TO THE POINT OF
BEGINNING.
APN: 121-171-29 and 121-171-30
EXHIBIT B
SCHEDULE OF LEASES
All spaces are on month to month agreements. There are no leases as of the date hereof.
DMWEST#12432709 v1 B-1
EXHIBIT C
SCHEDULE OF COACHES OWNED BY TRUSTOR
Space# Serial #
76 CAL322994
153 59143U/59143X
54 KC311129U/KC311129X
DMWEST#12432709 v1 C-1