RECORDING REQUESTED BY:
WHEN RECORDED MAIL TO:
AEI Real Estate Fund XV Limited Partnership
1300 Minnesota World Trade Center
00 Xxxx Xxxxxxx Xxxxxx
Xx. Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
SPACE ABOVE LINE FOR RECORDER'S USE
DEED OF TRUST WITH ASSIGNMENT OF RENTS
THIS DEED OF TRUST WITH ASSIGNMENT OF RENTS ("Deed of
Trust"), dated January 24th, 1997, is made by XXXXXX
XXXXXXX, XXXXXXX XXXXXXX, XXXXXXX XXXXXXX and XXXXXX XXXXXXX
(collectively "Trustor"), whose address is 000 Xxxxxx Xxxxx, Xxx
Xxxxxxxx, Xxxxxxxxxx 00000, in favor of Chicago Title Company
("Trustee") and AEI REAL ESTATE FUND XV LIMITED PARTNERSHIP, a
Minnesota limited partnership whose address is 0000 Xxxxxxxxx
Xxxxx Xxxxx Xxxxxx, 00 Xxxx Xxxxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx
00000 ("Beneficiary"). Capitalized terms used herein and not
otherwise defined are used with the meanings set forth in Exhibit
"B" attached hereto and incorporated herein by reference.
1. Grant in Trust and Security Agreement. For valuable
consideration, Trustor irrevocably grants, transfers and assigns
to Trustee, in trust, with power of sale, for the benefit of
Beneficiary, the following property ("Trust Estate"):
1 the real property described in Exhibit "A" attached to
this Deed of Trust and incorporated in this Deed of Trust by
reference ("Land");
2 all buildings, structures and other improvements now or
in the future located or to be constructed on the Land
("Improvements");
3 all tenements, hereditaments, appurtenances, privileges
and other rights and interests now or in the future benefitting
or otherwise relating to the Land or the Improvements, including
easements, rights-of-way, development rights, mineral rights,
water rights and water stock ("Appurtenances," and together with
the Land and the Improvements, the "Real Property"); and
4 subject to the assignment to Beneficiary set forth in
Section 3.8 below, all rents, issues, income, revenues, royalties
and profits now or in the future payable with respect to or
otherwise derived from the Real Property or the ownership, use,
management, operation, leasing or occupancy of the Real Property,
including those past due and unpaid ("Rents").
2. Obligations Secured. This Deed of Trust is given for
the purpose of securing payment and performance of the following
("Secured Obligations"): (1) payment of the sum of One Million
Three Thousand Dollars ($1,003,000.00) with interest thereon
according to the terms of the promissory note of even date
herewith made by Trustor, payable to order of the Beneficiary,
and extensions or renewals thereof ("Promissory Note"); (2) the
performance of each agreement of Trustor incorporated by
reference or contained herein or reciting it is so secured; (3)
payment of additional sums and interest thereon which may
hereafter be loaned to Trustor or their successors or assigns,
when evidenced by a promissory note or notes reciting that they
are secured by this Deed of Trust.
3. Trustor's Covenants. To protect the security of this
Deed of Trust, Trustor agrees as follows:
1 Payment and Performance of Secured Obligations.
Trustor shall pay and perform all Secured Obligations in
accordance with the respective terms of such Secured Obligations,
whether evidenced by or arising under this Deed of Trust, the
Promissory Note or otherwise.
2 Maintenance of Trust Estate. Unless Beneficiary
otherwise consents in writing, Trustor shall (i) keep the Real
Property in good condition and repair, and promptly and in a good
and workmanlike manner (and with new materials of good quality)
complete any Improvements to be constructed on the Land, repair
or restore any part of the Real Property that may be injured,
damaged or destroyed, and in each case pay when due all valid
claims for labor, service, equipment and material and any other
costs incurred in connection with any such action, (ii) not
remove, demolish or materially alter any Improvements, (iii) not
construct any Improvements on the Land or undertake any site
development work unless approved by Beneficiary, (iv) not commit
or permit any waste of any part of the Real Property, (v) not
permit or consent to any restriction that would prevent or
otherwise impair the use or development of the Real Property,
(vi) comply in all material respects with all Laws and Other
Requirements, and not commit or permit any material violation of
any Laws or Other Requirements, which affect any part of the
Trust Estate or require any alterations or improvements to be
made to any part of the Real Property, (vii) take such action
from time to time as may be reasonably necessary or appropriate,
or as Beneficiary may reasonably require, to protect the physical
security of the Real Property, (viii) not part with possession of
or abandon any part of the Trust Estate or cause or permit any
interest in any part of the Trust Estate to be sold, transferred,
leased, encumbered, released, relinquished, terminated or
otherwise disposed of (whether voluntarily, by operation of law
or otherwise), and (ix) take all other action which may be
reasonably necessary or appropriate to preserve, maintain and
protect the Trust Estate, including the enforcement or
performance of any rights or obligations of Trustor or any
conditions with respect to any Rights.
Without limitation on any obligations of Trustor under
the preceding paragraph, in the event that (i) all or a
substantial or material portion of the Real Property is injured,
damaged or destroyed by fire or other casualty, or (ii) any of
the Real Property is damaged, destroyed or lost and any Damage
Proceeds (as defined in Section 3.3) are payable as a result of
such occurrence or the cost of the repair, restoration or
replacement is reasonably expected to exceed $50,000, or (iii)
any part (but less than all) of the Real Property is condemned,
seized or appropriated by any Governmental Agency (or conveyed,
with Beneficiary's consent, in lieu of any such action), the
following additional provisions shall apply:
2.1 within 30 days (or such longer period as
Beneficiary may approve in writing) after the date of such
injury, damage, destruction, loss or other event, Trustor shall
deliver to Beneficiary, in form and substance reasonably
satisfactory to Beneficiary: (1) a written plan for the repair,
restoration or replacement of the Real Property (any such
repair, restoration or replacement being referred to as a
"Restoration"), including the estimated cost of the Restoration
and time of completion, (2) if requested by Beneficiary, a copy
of the plans and specifications for the Restoration, and (3) such
other Documents and information relating to the Restoration as
Beneficiary may reasonably request;
2.2 if and to the extent required by Beneficiary, any
contracts entered into by Trustor with architects, contractors,
subcontractors or suppliers in connection with the Restoration
shall be in form and substance and with a Person reasonably
satisfactory to Beneficiary;
2.3 the Restoration shall be conducted in accordance
with such procedures and requirements as Beneficiary may
reasonably specify, and shall be in substantial conformity with
the applicable plans and specifications and the plan referred to
in Section 3.2.1 above and in compliance in all material respects
with all applicable Laws and Other Requirements;
2.4 if Beneficiary reasonably determines at any time
that any available Damage Proceeds that Beneficiary may be
required to release to Trustor for the Restoration pursuant to
Section 3.3 are or may be insufficient to pay for all costs of
completing the Restoration, then Trustor shall deposit with
Beneficiary, on demand, an amount deemed reasonably necessary by
Beneficiary to cover such insufficiency (any such amount to be
held and disbursed by Beneficiary in accordance with Section
3.2.5 below); and
2.5 any Damage Proceeds that Beneficiary may be
required to release to Trustor for the Restoration pursuant to
Section 3.3, together with any amounts deposited by Trustor with
Beneficiary pursuant to Section 3.2.4 above, shall be held by
Beneficiary in a cash collateral account over which Beneficiary
shall have sole and exclusive control and right of withdrawal),
shall be used solely to pay the cost of the Restoration and shall
be disbursed in accordance with such terms, conditions and
procedures as Beneficiary may reasonably require (including
compliance by Trustor with the provisions of Sections 3.2.1
through 3.2.4 above), provided that (1) Beneficiary shall have no
obligation to disburse any such amounts if an Event of Default
has occurred and is continuing, and (2) if the amount of any such
Damage Proceeds received by Beneficiary exceeds the cost of
completing the Restoration, the excess may be applied by
Beneficiary to the Secured Obligations in such order and manner
as Beneficiary may determine or, at the option of Beneficiary,
may be released to Trustor.
Any application or release of Damage Proceeds or
additional amounts deposited with Beneficiary pursuant to Section
3.2.4 above (whether under this Section 3.2 or Section 3.3) shall
not cure or waive any Event of Default or notice of default or
invalidate any act done pursuant to such notice.
3 Insurance, Condemnation and Damage Claims. Trustor
shall maintain property "all risk" insurance covering the
Improvements in such forms and amounts and with such insurance
companies as shall be approved by Beneficiary. All proceeds of
any claim, demand, award, settlement or other payment arising or
resulting from or otherwise relating to any such insurance of any
loss or destruction of, injury or damage to, trespass on or
taking, condemnation (or conveyance in lieu of condemnation) or
public use of any of the Real Property ("Damage Claim") are
assigned and shall be payable and delivered to Beneficiary (any
such proceeds of any Damage Claim being referred to in this Deed
of Trust as "Damage Proceeds"). Trustor shall take all action
reasonably necessary or required by Beneficiary in order to
protect Trustor's and Beneficiary's rights and interests with
respect to any Damage Claim, including the commencement of,
appearance in and prosecution of any appropriate action or other
proceeding, and Beneficiary may in its discretion participate in
any such action or proceeding at the expense of Trustor.
So long as no Event of Default has occurred and is
continuing, Trustor may settle, compromise or adjust any Damage
Claim with the prior written consent of Beneficiary (which shall
not be unreasonably withheld). Upon the occurrence and during
the continuance of any Event of Default, Beneficiary shall have
the sole right to settle, compromise or adjust any Damage Claim
in such manner as Beneficiary may determine, and for this purpose
Beneficiary may, in its own name or in the name of Trustor, take
such action as Beneficiary deems appropriate to realize on any
such Damage Claim. In either case, all Damage Proceeds payable
in connection with any such Damage Claim shall be delivered
directly to Beneficiary as provided in the preceding paragraph.
Any Damage Proceeds received by Beneficiary may be
applied by Beneficiary in payment of the Secured Obligations in
such order and manner as Beneficiary may determine, provided that
so long as no Event of Default has occurred and is continuing,
Beneficiary shall release such Damage Proceeds to Trustor for the
Restoration of the Real Property in the manner set forth in
Section 3.2, except that Beneficiary shall not be required to
release such Damage Proceeds (and may apply such Damage Proceeds
to the Secured Obligations as set forth above) to the extent that
such Damage Proceeds relate to any condemnation, seizure or other
appropriation by any Governmental Agency of all or any portion of
the Real Property (including Damage Proceeds payable in lieu of
any such action), or if Beneficiary has reasonably determined
that the security of this Deed of Trust has been impaired, or
will be impaired upon release of Damage Proceeds to Trustor.
4 Liens and Taxes. (i) Trustor shall pay, prior to
delinquency, all Taxes which are or may become a Lien affecting
any part of the Trust Estate (including assessments on
appurtenant water stock) and (ii) Trustor shall pay and perform
when due all other obligations secured by or constituting a Lien
affecting any part of the Trust Estate.
5 Actions. Trustor shall appear in and defend any claim
or any action or other proceeding purporting to affect title or
other interests relating to any part of the Trust Estate, the
security of this Deed of Trust or the rights or powers of
Beneficiary or Trustee, and give Beneficiary prompt written
notice of any such claim, action or proceeding. Beneficiary and
Trustee may, at the expense of Trustor, appear in and defend any
such claim, action or proceeding and any claim, action or other
proceeding asserted or brought against Beneficiary or Trustee in
connection with or relating to any part of the Trust Estate or
this Deed of Trust.
6 Action By Beneficiary or Trustee. If Trustor fails to
perform any of its obligations under this Deed of Trust,
Beneficiary or Trustee may, but without any obligation to do so
and without notice to or demand upon Trustor and without
releasing Trustor from any obligations under this Deed of Trust,
and at the expense of Trustor: (i) perform such obligations in
such manner and to such extent and make such payments and take
such other action as either may deem necessary in order to
protect the security of this Deed of Trust, Beneficiary or
Trustee being authorized to enter upon the Real Property for such
purposes, (ii) appear in and defend any claim or any action or
other proceeding purporting to affect title or other interests
relating to any part of the Trust Estate, the security of this
Deed of Trust or the rights or powers of Beneficiary of Trustee,
and (iii) pay, purchase, contest or compromise any Lien or Right
of Others which in the reasonable judgment of either is or
appears to be or may for any reason become prior or superior to
this Deed of Trust. If Beneficiary or Trustee shall elect to pay
any such Lien or Right of Others or any Taxes which are or may
become a Lien affecting any part of the Trust Estate or make any
other payments to protect the security of this Deed of Trust,
Beneficiary or Trustee may do so without inquiring into the
validity or enforceability of any apparent or threatened Lien,
Right of Others or Taxes, and may pay any such Taxes in reliance
on information from the appropriate taxing authority or public
office without further inquiry.
7 Obligations With Respect to Trust Estate. Neither
Beneficiary nor Trustee shall be under any obligation to
preserve, maintain or protect the Trust Estate or any of
Trustor's rights or interests in the Trust Estate, or make or
give any presentments, demands for performance, protests, notices
of nonperformance, protest or dishonor or other notices of any
kind in connection with any Rights, or take any other action with
respect to any other matters relating to the Trust Estate.
Beneficiary and Trustee do not assume and shall have no liability
for, and shall not be obligated to perform, any of Trustor's
obligations with respect to any Rights or any other matters
relating to the Trust Estate, and nothing contained in this Deed
of Trust shall release Trustor from any such obligations.
8 Assignment of Rents. Trustor irrevocably grants,
transfers and assigns to Beneficiary, during the continuance of
this Deed of Trust, all of Trustor's right, title and interest in
and to the Rents. Notwithstanding such assignment, so long as no
Event of Default has occurred and is continuing, Trustor shall
have the right to collect, receive, hold and dispose of the Rents
as the same become due and payable, provided that unless
Beneficiary otherwise consents in writing: (i) any such Rents
paid more than 30 days in advance of the date when due shall be
delivered to Beneficiary and held by Beneficiary in a cash
collateral account (over which Beneficiary shall have sole and
executive control and right of withdrawal), to be released and
applied on the date when due (or, if an Event of Default has
occurred and is continuing, at such other time or times and in
such manner as Beneficiary may determine), and (ii) if an Event
of Default has occurred and is continuing, Trustor's right to
collect and receive the Rents shall cease and Beneficiary shall
have the sole right, with or without taking possession of the
Real Property, to collect all Rents, including those past due and
unpaid. Any such collection of Rents by Beneficiary shall not
cure or waive any Event of Default or notice of default or
invalidate any act done pursuant to such notice. Failure or
discontinuance of Beneficiary at any time, or from time to time,
to collect the Rents shall not in any manner affect the
subsequent enforcement by Beneficiary of the right to collect the
same. Nothing contained in this Deed of Trust, nor the exercise
of the right by Beneficiary to collect the Rents, shall be deemed
to make Beneficiary a "mortgagee in possession" or shall be, or
be construed to be, an affirmation by Beneficiary of, or an
assumption of liability by Beneficiary under, or a subordination
of the Lien of this Deed of Trust to, any tenancy, lease or
option.
9 Default. Upon the occurrence of any Event of Default:
(i) Trustor shall be in default under this Deed of Trust, and all
Secured Obligations shall immediately become due and payable
without further notice to Trustor; (ii) upon demand by
Beneficiary, Trustor shall pay to Beneficiary, in addition to all
other payments specifically required under this Deed of Trust and
the Promissory Note, in monthly installments, at the times and in
the amounts required by Beneficiary from time to time, sums which
when cumulated will be sufficient to pay one month prior to the
time the same become delinquent, all Taxes which are or may
become a Lien affecting the Trust Estate and the premiums for any
policies of insurance to be obtained hereunder (all such payments
to be held in a cash collateral account over which Beneficiary
shall have sole and exclusive control and right of withdrawal);
and (iii) Beneficiary may, without notice to or demand upon
Trustor, which are expressly waived by Trustor (except for
notices or demands otherwise required by applicable Laws to the
extent not effectively waived by Trustor and any notices or
demands specified below), and without releasing Trustor from any
of its Obligations, exercise any one or more of the following
Remedies as Beneficiary may determine:
9.1 Beneficiary may, either directly or through an
agent or court-appointed receiver, and without regard to the
adequacy of any security for the Secured Obligations:
1. enter, take possession of, manage, operate, protect,
preserve and maintain, and exercise any other rights of an owner
of, the Trust Estate, and use any other properties or facilities
of Trustor relating to the Trust Estate, all without payment of
rent or other compensation to Trustor;
2. enter into such contracts and take such other action as
Beneficiary deems appropriate to complete all or any part of any
construction which may have commenced on the Land, subject to
such modifications and other changes in the plan of development
as Beneficiary may deem appropriate;
3. make, cancel, enforce or modify leases, obtain and
evict tenants, fix or modify rents and, in its own name or in the
name of Trustor, otherwise conduct any business of Trustor in
relation to the Trust Estate and deal with Trustor's creditors,
debtors, tenants, agents and employees and any other Persons
having any relationship with Trustor in relation to the Trust
Estate, and amend any contracts between them, in any manner
Beneficiary may determine;
4. either with or without taking possession of the Trust
Estate, notify obligors on any Rights that all payments and other
performance are to be made and rendered directly and exclusively
to Beneficiary, and in its own name supplement, modify, amend,
renew, extend, accelerate, accept partial payments or performance
on, make allowances and adjustments and issue credits with
respect to, give approvals, waivers and consents under, release,
settle, compromise, compound, sue for, collect or otherwise
liquidate, enforce or deal with any Rights, including collection
of amounts past due and unpaid (Trustor agreeing not to take any
such action after the occurrence of an Event of Default without
prior written authorization from Beneficiary);
5. endorse, in the name of Trustor, all checks, drafts and
other evidences of payment relating to the Trust Estate, and
receive, open and dispose of all mail addressed to Trustor and
notify the postal authorities to change the address for delivery
of such mail to such address as Beneficiary may designate; and
6. take such other action as Beneficiary deems appropriate
to protect the security of this Deed of Trust.
Beneficiary's agent or court-appointed receiver shall
hold all monies and proceeds, including, without limitation,
proceeds from the sale of the Real Property or any portion
thereof, for the benefit of the Trustor and shall not disburse
the monies or proceeds for the satisfaction of the Secured
Obligations without the prior written consent of Beneficiary.
The Beneficiary's agent or court-appointed receiver may, but
without any obligation to do so and without notice to or demand
upon Trustor and without releasing Trustor from any Obligations
under this Deed of Trust, and at the expense of Trustor, follow
the written instruction of Beneficiary under this Section 3.9.
9.2 Beneficiary may execute and deliver to Trustee
written declaration of default and demand for sale and written
notice of default and of election to cause all or any part of the
Trust Estate to be sold, which notice Trustee shall cause to be
filed for record; and after the lapse of such time as may then be
required by law following the recordation of such notice of
default, and notice of sale having been given as then required by
law, Trustee, without demand on Trustor, shall sell such property
at the time and place fixed by it in such notice of sale, either
as a whole or in separate parcels and in such order as
Beneficiary may direct (Trustor waiving any right to direct the
order of sale), at public auction to the highest bidder for cash
in lawful money of the United States (or cash equivalents
acceptable to Trustee to the extent permitted by applicable law),
payable at the time of sale. Trustee may postpone the sale of
all or any part of the Trust Estate by public announcement at
such time and place of sale, and from time to time after any such
postponement may postpone such sale by public announcement at the
time fixed by the preceding postponement. Trustee shall deliver
to the purchaser at such sale its deed conveying the property so
sold, but without any covenant or warranty, express or implied,
and the recitals in such deed of any matters or facts shall be
conclusive proof of the truthfulness thereof. Any person,
including Trustee or Beneficiary, may purchase at such sale, and
any bid by Beneficiary may be, in whole or in part, in the form
of cancellation of all or any part of the Secured Obligations.
Any such sale shall be free and clear of any interest of Trustor
and any lease, encumbrance or other matter affecting the property
so sold which is subject or subordinate to this Deed of Trust,
except that any such sale shall not result in the termination of
any such lease (i) if and to the extent otherwise provided in any
estoppel or other agreement executed by the tenant and
Beneficiary (or executed by the tenant in favor of, and accepted
by, Beneficiary), or (ii) if the purchaser at such sale gives
written notice to the tenant, within 30 days after date of sale,
that the lease will continue in effect.
9.3 Beneficiary may proceed to protect, exercise and
enforce any and all other Remedies provided under the Promissory
Note or by applicable Laws.
All proceeds of collection, sale or other liquidation
of the Trust Estate shall be applied first to all costs, fees,
expenses and other amounts (including interest) payable by
Trustor under Section 3.10 of this Deed of Trust and to all other
Secured Obligations not otherwise repaid in such order and manner
as Beneficiary may determine, and the remainder, if any, to the
person or persons legally entitled thereto.
Each of the Remedies provided in this Deed of Trust is
cumulative and not exclusive of, and shall not prejudice, any
other Remedy provided in this Deed of Trust or by applicable Laws
or under the Promissory Note. Each Remedy may be exercised from
time to time as often as deemed necessary by Trustee and
Beneficiary, and in such order and manner as Beneficiary may
determine. This Deed of Trust is independent of any other
security for the Secured Obligations, and upon the occurrence of
an Event of Default, Trustee or Beneficiary may proceed in the
enforcement of this Deed of Trust independently of any other
Remedy that Trustee or Beneficiary may at any time hold with
respect to the Trust Estate or the Secured Obligations or any
other security. Trustor, for itself and for any other person
claiming by or through Trustor, waives, to the fullest extent
permitted by applicable Laws, all rights to require a marshaling
of assets by Trustee or Beneficiary or to require Trustee or
Beneficiary to first resort to any particular portion of the
Trust Estate or any other security (whether such portion shall
have been retained or conveyed by Trustor) before resorting to
any other portion, and all rights of redemption, stay and
appraisal.
10 Costs, Fees and Expenses. Trustor shall pay, on
demand, all costs, fees, expenses, advances, charges, losses and
liabilities of Trustee and Beneficiary under or in connection
with this Deed of Trust or the enforcement of, or the exercise of
any Remedy or any other action taken by Trustee or Beneficiary
under, this Deed of Trust or the collection of the Secured
Obligations, in each case including (i) reconveyance and
foreclosure fees of Trustee, (ii) costs and expenses of
Beneficiary or Trustee or any receiver appointed under this Deed
of Trust in connection with the operation, maintenance,
management, protection, preservation, collection, sale or other
liquidation of the Trust Estate or foreclosure of this Deed of
Trust, (iii) advances made by Beneficiary to complete or
partially construct all or any part of any construction which may
have commenced on the Land or otherwise to protect the security
of this Deed of Trust, (iv) cost of evidence of title, and (v)
the reasonable fees and disbursements of Trustee's and
Beneficiary's legal counsel and other out-of-pocket expenses, and
the reasonable charges of Beneficiary's internal legal counsel;
together with interest on all such amounts until paid (1) at the
Alternate Rate in the case of any such interest payable to
Beneficiary, and (2) at the rate provided by law in the case of
any such interest payable to Trustee.
11 Action by Trustee. At any time and from time to time
upon written request of Beneficiary and presentation of this Deed
of Trust for endorsement, and without affecting the personal
liability of any Person for payment of the Secured Obligations or
the security of this Deed of Trust for the full amount of the
Secured Obligations on all property remaining subject to this
Deed of Trust, Trustee may, without notice and without liability
for such action, and notwithstanding the absence of any payment
on the Secured Obligations or any other consideration: (i)
reconvey all or any part of the Trust Estate, (ii) consent to the
making and recording, or either, of any map or plat of the Land,
(iii) join in granting any easement affecting the Land, or (iv)
join in or consent to any extension agreement or any agreement
subordinating the Lien of this Deed of Trust. Trustee is not
obligated to notify Trustor or Beneficiary of any pending sale
under any other deed of trust or of any action or other
proceeding in which Trustor, Beneficiary or Trustee is a party
unless brought by Trustee.
12 Reconveyance. Upon written request of Xxxxxxxxxxx and
surrender of this Deed of Trust to Trustee for cancellation or
endorsement, and upon payment of its fees and charges, Trustee
shall reconvey, without warranty, all or any part of the property
then subject to this Deed of Trust. Any reconveyance, whether
full or partial, may be made in terms to "the person or persons
legally entitled thereto," and the recitals in such reconveyance
of any matters or facts shall be conclusive proof of the
truthfulness thereof. Beneficiary shall not be required to cause
any property to be released from this Deed of Trust until final
payment and performance in full of all Secured Obligations and
termination of all obligations of Beneficiary under or in
connection with the Promissory Note and this Deed of Trust.
13 Substitution of Trustee. Beneficiary may from time to
time, by instrument in writing, substitute a successor or
successors to any Trustee named in or acting under this Deed of
Trust, which instrument, when executed by Beneficiary and duly
acknowledged and recorded in the office of the recorder of the
county or counties where the Land is situated, shall be
conclusive proof of proper substitution of such successor Trustee
or Trustees who shall, without conveyance from the predecessor
Trustee, succeed to all of its title, estate, rights, powers and
duties. Such instrument must contain the name of the original
Trustor, Trustee and Beneficiary, the book and page where this
Deed of Trust is recorded (or the date of recording and
instrument number) and the name and address of the new Trustee.
14 Attorney-in-Fact. Trustor appoints Beneficiary as
Trustor's attorney-in-fact, with full authority in the place of
Trustor and in the name of Trustor or Beneficiary, to take such
action and execute such Documents as Beneficiary may reasonably
deem necessary or advisable in connection with the exercise of
any Remedies or any other action taken by Beneficiary or Trustee
under this Deed of Trust.
15 Successors and Assigns. This Deed of Trust applies to
and shall be binding on and inure to the benefit of all parties
to this Deed of Trust and their respective successors and
assigns.
16 Acceptance. Notice of acceptance of this Deed of Trust
by Beneficiary or Trustee is waived by Trustor. Trustee accepts
this Deed of Trust when this Deed of Trust, xxxx executed and
acknowledged, is made a public record as provided by law.
17 Beneficiary's Statements. For any statement regarding
the Secured Obligations, Beneficiary may charge the maximum
amount permitted by law at the time of the request for such
statement.
18 Rules of Construction. For purposes of this Deed of
Trust: (i) any reference to "days" or "months" shall mean
calendar days or months, (ii) the word "including" shall mean
"including without limitation", (iii) any reference to the
Promissory Note or other Document or exhibit shall mean the
Promissory Note or Document or exhibit as it may from time to
time be supplemented, modified, amended and extended in
accordance with the terms hereof or thereof, (iv) defined terms
shall be equally applicable to the singular and plural forms, and
(v) all existing and future exhibits to this Deed of Trust are
incorporated herein by this reference. The provisions of this
Deed of Trust are declared to be severable.
19 Governing Law. This Deed of Trust shall be governed
by, and construed and enforced in accordance with, the Laws of
California.
20 Request for Notice. Trustor requests that a copy of
any notice of default and a copy of any notice of sale be mailed
to Trustor at Trustor's address set forth above.
4. Due on Sale/Due on Encumbrance. Should all or any
portion of the Real Property, or any interest therein, be sold,
alienated or conveyed, Beneficiary may declare the entire balance
of the Secured Obligations fully due and payable. This
acceleration provision shall apply to the conveyance or
alienation of any interest in the Real Property whatsoever,
whether equitable or legal, recorded or unrecorded, and shall
include, without limitation, an "outright sale," a land sale
contract, a lease with a term of more than three (3) years, a
lease with option to purchase and conveyances in trust.
Trustor shall not create or permit to continue in
existence any other (subordinate) mortgage, deed of trust,
pledge, security interest, lien or charge of any kind (including
purchase money and conditional sale liens), or other encumbrance
upon any of the Real Property, except for the lien of taxes and
assessments not yet delinquent. Any transaction in violation of
this paragraph shall cause all or indebtedness secured by this
Deed of Trust, at the option of the Beneficiary hereof and
without demand or notice, to become immediately due and payable.
"TRUSTOR":
/s/ Xxxxxx Xxxxxxx
XXXXXX XXXXXXX
/s/ Xxxxxxx Xxxxxxx
XXXXXXX XXXXXXX
/s/ Xxxxxxx Xxxxxxx
XXXXXXX XXXXXXX
/s/ Xxxxxx Xxxxxxx
XXXXXX XXXXXXX
EXHIBIT "A"
LEGAL DESCRIPTION OF LAND
That certain real property located in the City of
Xxxxxx Valley, Riverside County, California, described as
follows:
Parcel 1 of Parcel Map No. 20964 in the City of Xxxxxx Valley, C
ounty of Riverside, State of California, as per Map Recorded in
Book 137, Pages 30 through 31 of Parcel Maps, in the
office of the County Recorder of said County.
EXHIBIT "B"
DEFINITIONS
As used in this Deed of Trust, the following terms shall
have the following meanings:
"Alternate Rate" means Ten percent (10%) per annum.
"Authorization" means any authorization, consent, approval,
order, license, permit, exemption or other action by or from, or
any filing, registration or qualification with, any Governmental
Agency or other Person.
"Collateral" means all property in which Beneficiary is
granted or purportedly granted a Lien pursuant to this Deed of
Trust.
"Documents" means written documents and materials, including
agreements, approvals, certificates, consents, instruments,
financing statements, reports, budgets, forecasts and opinions.
"Event of Default" means the occurrence of any one or more
of the following events:
1. the failure of Trustor to perform or observe any
term, covenant or agreement contained in this Deed of Trust; or
2. all or a substantial or material portion of the
Collateral is damaged or destroyed by fire or other casualty and
Beneficiary has reasonably determined that the security of this
Deed of Trust has been impaired or that the repair, restoration
or replacement of the Collateral in accordance with the
requirements hereof is not economically practicable; or all or a
substantial or material portion of the Collateral is condemned,
seized or appropriated by any Governmental Agency or subject to
any action or other proceeding instituted by any Governmental
Agency for any such purpose; or
3. the occurrence of any "Event of Default" as
defined in the Promissory Note; or
4. should Trustor agree to or actually sell, convey,
transfer, or dispose of the Real Property described in this Deed
of Trust, or any part of it, or any interest in it, to any person
or entity, without first obtaining the written consent of
Beneficiary, which may be withheld in Beneficiary's sole and
absolute discretion, then all obligations secured by this Deed of
Trust may be declared due and payable, at the option of the
Beneficiary, its successors and assigns. Consent to one
transaction of this type will not constitute a waiver of the
right to require consent to future or successive transactions.
"Governmental Agency" means (i) any government or
municipality or political subdivision of any government or
municipality, (ii) any assessment, improvement, community
facilities or other special taxing district, (iii) any
governmental or quasi-governmental agency, authority, board,
bureau, commission, corporation, department, instrumentality or
public body, (iv) any court, administrative tribunal, arbitrator,
public utility or regulatory body, or (v) any central bank or
comparable authority.
"Laws" means all federal, state and local laws, rules,
regulations, ordinances and codes.
"Lien" means any lien, mortgage, deed of trust, pledge,
security interest or other charge or encumbrance.
"Obligations" means all obligations of the Trustor of every
nature under this Deed of Trust and/or the Promissory Note.
"Other Requirements" means (i) the terms, conditions and
requirements of all Authorizations and Rights of Others relating
to the Collateral and all other Documents, agreements and
restrictions relating to, binding on or affecting the Collateral,
including covenants, conditions and restrictions, leases,
easements, reservations, rights and rights-of-way, (ii)
requirements relating to the lease of any portion of the Real
Property by the Borrower or the supply of utility services to the
Real Property, (iii) requirements and recommendations of the
soils report and any environmental impact report or negative
declaration, (iv) all building, zoning, land use, planning and
subdivision requirements, and (v) requirements relating to
construction of any off-site improvements.
"Person" means any person or entity, whether an individual,
trustee, corporation, partnership, joint stock company, trust,
unincorporated organization, bank, business association or firm,
joint venture, governmental Agency or otherwise.
"Promissory Note" means that certain Promissory Note of even
date herewith which is secured by this Deed of Trust.
"Remedy" means any right, power or remedy.
"Right of Others" means, as to any property in which a
Person has an interest, any legal or equitable claim or other
interest (other than a Lien but including a leasehold interest, a
right of first refusal or a right of repossession or removal) in
or with respect to such property held by any other Person, and
any option or right held by any other Person to acquire any such
claim or other interest or any Lien in or with respect to such
property.
"Taxes" means all taxes, assessments, charges, fees and
levies (including interest and penalties) imposed, assessed or
collected by any Governmental Agency.
ACKNOWLEDGMENTS
CAPACITY CLAIMED BY SIGNER:
Individual(s)
Corporate
Officer(s)
Partner(s)
Attorney-in-Fact
Trustee(s)
Subscribing Witness
Guardian/Conservator
Other
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
STATE OF CALIFORNIA }
}
COUNTY OF SAN FRANCISCO }
On January 20, 1997, before me, the
undersigned notary public, personally appeared
Xxxxxx Xxxxxxx, personally known to me OR proved
to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxxxxxx Xxxxxxxxx
Signature of Notary [notary seal]
CAPACITY CLAIMED BY SIGNER:
[x] Individual(s)
Corporate
Officer(s)
Partner(s)
Attorney-in-Fact
Trustee(s)
Subscribing Witness
Guardian/Conservator
Other
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
STATE OF CALIFORNIA }
}
COUNTY OF SAN FRANCISCO }
On January 20, 1997, before me, the
undersigned notary public, personally appeared
Xxxxxxxxx X. Xxxxxxx, personally known to me OR proved
to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxxxxxx Xxxxxxxxx
Signature of Notary [notary seal]
ACKNOWLEDGMENTS
CAPACITY CLAIMED BY SIGNER:
Individual(s)
Corporate
Officer(s)
Partner(s)
Attorney-in-Fact
Trustee(s)
Subscribing Witness
Guardian/Conservator
Other
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
STATE OF CALIFORNIA }
}
COUNTY OF MARIN }
On Jan 20, 1997, before me, the
undersigned notary public, personally appeared
Xxxxxxx Xxxxxxx , personally known to me OR proved
to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxxx Xxxxxxx
Signature of Notary [notary seal]
CAPACITY CLAIMED BY SIGNER:
Individual(s)
Corporate
Officer(s)
Partner(s)
Attorney-in-Fact
Trustee(s)
Subscribing Witness
Guardian/Conservator
Other
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
STATE OF CALIFORNIA }
}
COUNTY OF MARIN }
On Jan 20th, 1997, before me, the
undersigned notary public, personally appeared
Xxxxxx Xxxxxxx, personally known to me OR proved
to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxxx Xxxxxxx
Signature of Notary [notary seal]
