Exhibit 10.4(a)
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Zond Construction Corporation IV
c/o Zond Systems, Inc.
17752 Skypark Circle
Suite 150
Irvine, California 92714
Attention: Craig A. Anderson, Esq.
DEED OF TRUST AND ASSIGNMENT OF RENTS
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THIS DEED OF TRUST AND ASSIGNMENT OF RENTS ("Deed of Trust") is made as of
the 2nd day of December, 1985, by ZOND WINDSYSTEM PARTNERS, LTD. SERIES 85-C, A
CALIFORNIA LIMITED PARTNERSHIP ("Trustor"), to TICOR TITLE INSURANCE COMPANY OF
CALIFORNIA, as trustee ("Trustee"), for the benefit of ZOND CONSTRUCTION
CORPORATION IV, a California corporation ("Beneficiary").
I. GRANT AND OBLIGATION SECURED
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A. Grant
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1.01 Trustor hereby irrevocably grants, transfers and assigns to
Trustee, in trust, with power of sale, all right, title and interest of Trustor
in and to all real property interests of Trustor and to which Trustor is
entitled including without limitation all right, title, and interest of Trustor
in and to the Wind Park Easement Agreement dated as of November 4, 1985 (the
"Wind Park Easement Agreement") between Beneficiary and Zond Systems, Inc., a
California corporation ("Zond"), as it relates to that certain real property
situated in Alameda County, California, defined in the Wind Park Easement
Agreement as the "Property" and described in Exhibit A attached hereto and made
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a part hereof ("Land").
B. Obligations Secured
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1.02. The grant, transfer and assignment made in Paragraph 1.01 is for
the purpose of securing:
(a) Payment of that non-recourse promissory note of even date
herewith with an original principal amount of $7,920,000 ("Purchase
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Note") by Trustor in favor of Beneficiary in partial payment by Trustor
to Beneficiary of the purchase price of a portion of the following
purchased by Trustor from Beneficiary pursuant to the Windsystem
Construction Agreement dated as of November 4, 1985 (the "Windsystem
Construction Agreement"): certain property (collectively the "Wind-
system") more specifically described in paragraphs (a), (b) and (c) of
Section 2.2 of the Security Agreement (as defined in the next
sentence) including without limitation up to 200 Vestas Model V17 wind
turbine generators, certain concrete pads, cables and step-up
transformers for such wind turbine generators and a 20MW power
substation. The Purchase Note is also secured by security interests
granted by Trustor to Beneficiary in certain property of Trustor
pursuant to a Purchase Note and Security Agreement dated as of December
2, 1985 ("Security Agreement") between Trustor, as debtor, and
Beneficiary, as secured party.
(b) Payment of any other non-recourse promissory note made by
Trustor in favor of Beneficiary in partial payment by Trustor to
Beneficiary in partial payment by Trustor to Beneficiary of the
purchase price of any portion of the Windsystem purchased by Trustor
from Beneficiary pursuant to the Windsystem Construction Agreement when
such other non-recourse promissory note (also called a "Purchase Note"
in this Deed of Trust) recites that it is secured by this Deed of Trust
and certain security interests as provided in the Security Agreement.
(c) Any sums due to Beneficiary by Trustor pursuant to any of
the terms of this Deed of Trust.
II. COVENANTS OF TRUSTOR
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A. Wind Park Easement Agreement
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2.01 Trustor agrees that:
(a) It shall keep and perform each and every material
obligation of Trustor in the Wind Park Easement Agreement, including
without limitation the payment of all royalty payments owed by it under
the Wind Park Easement Agreement. If Trustor is in default under
Section 9.1.1 or Section 9.1.2 of the Wind Park Easement Agreement and
such default is not otherwise cured by Trustor, Beneficiary may, at its
option but without any obligation to do so, take any action necessary
or desirable to cure any such default, Beneficiary being authorized to
utilize all right, title and interest of Trustor in and to the Wind
Park Easement Agreement for such purposes, consistent with the
conditions of Paragraph 6.02. Trustor, immediately on demand, shall pay
to Beneficiary all costs of Beneficiary incurred in curing any such
default.
(b) It shall give immediate notice to the then holder of this
Deed of Trust (other than Beneficiary) of any receipt by Trustor of any
notice from Beneficiary of an event of default by Trustor pursuant to
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Section 9.1.1. or 9.1.2 of the Wind Park Easement Agreement or of any
notices which Trustor may receive from Zond under Section 12 of the
Wind Park Easement Agreement.
(c) The obligations of Trustor under this Deed of Trust shall
be deemed to be in addition to Trustor's obligations with respect to
similar obligations contained in the Wind Park Easement Agreement, and
the inclusion in this Deed of Trust of any obligations relating to
similar obligations contained in the Wind Park Easement Agreement shall
not restrict or limit Trustor's duties to keep and perform promptly all
of its obligations under the Wind Park Easement Agreement; provided,
however, that nothing in this Deed of Trust shall be construed as
requiring the taking of or the omitting to take any action by Trustor
or Beneficiary which would cause Trustor to be in default under Section
9.1.1 or 9.1.2 of the Wind Park Easement Agreement.
(d) So long as this Deed of Trust is in effect, there shall be
no merger of the Wind Park Easement Agreement or any interest therein
nor of the estate created thereby with the fee interest in the Land by
reason of the fact that the Wind Park Easement Agreement or such
interest therein or such estate may be held directly or indirectly by
or for the account of any person who shall hold any other dominant
estate in the Land, and Trustor and Beneficiary agree that the holding
of the Wind Park Easement Agreement or of such interest or estate by
the same person shall not result in a merger of the Wind Park Easement
Agreement or of such interest or estate. In the event Trustor acquires
an interest in any estate, title or interest in the Land other than its
interest in the Wind Park Easement Agreement, this Deed of Trust shall
attach to and cover and be a lien upon such interest in such other
estate, title or interest so acquired, and such interest shall, without
further assignment, mortgage or conveyance, become and be subject to
the lien of and be covered by this Deed of Trust. Trustor shall notify
Beneficiary of any such acquisition by Trustor and, on written request
by Beneficiary, shall cause to be executed and recorded all such other
and further assurances or other instruments in writing as may, in the
opinion of Beneficiary, be required to carry out the intent of this
subparagraph (d).
(e) No surrender (except a surrender upon the expiration of
the stated term of the Wind Park Easement Agreement) by Trustor of its
right, title and interest in and to the Wind Park Easement Agreement,
or any portion thereof or of any interest therein, and no termination
of the Wind Park Easement Agreement by Trustor (except as provided in
the Wind Park Easement Agreement) shall be valid or effective, and
neither Trustor's right, title and interest in and to the Wind Park
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Easement Agreement nor the terms thereof may be assigned, amended,
modified, or subordinated to any mortgage, easement, right of way, or
to any other interest, either orally or in writing, without the prior
written consent of Beneficiary so long as the lien of this Deed of
Trust is in effect.
(f) If the Wind Park Easement Agreement is for any reason
whatsoever terminated prior to the expiration of its stated term and,
if pursuant to any provision of the Wind Park Easement Agreement or
otherwise, Trustor shall acquire from the granting party or the fee
owner a new easement or right of way and/or other rights identical or
similar to those in the terminated Wind Park Easement Agreement, this
Deed of Trust shall attach to and cover and be a lien upon such
interest in such other new easement or right of way and/or other rights
so acquired, and such new easement or right of way and/or other rights
shall, shall, without further assignment, mortgage or conveyance,
become and be subject to the lien of and be covered by this Deed of
Trust.
(g) If the Wind Park Easement Agreement is for any reason
whatsoever terminated prior to the expiration of its stated term and,
if pursuant to any provision of the Wind Park Easement Agreement or
otherwise, Beneficiary or its designee shall acquire from the granting
party or the fee owner a new easement or right of way and/or other
rights identical or similar to those in the terminated Wind Park
Easement Agreement, Trustor shall have no right, title or interest in
or to such new estate created thereby.
2.02 Trustor shall not commit any violation of any law, ordinance,
rule, regulation or order of any governmental authority having jurisdiction over
Trustor's right, title and interest in and to the Wind Park Easement Agreement.
B. Payments
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2.03 Trustor shall pay the principal, interest and other charges due
under each and every Purchase Note according to its terms.
2.04 Trustor shall pay immediately after expenditure, all sums expended
or expenses properly incurred by Trustee and/or Beneficiary under any of the
terms of this Deed of Trust.
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C. Rents
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2.05 For so long as any amounts due under any Purchase Note remain
unpaid and as additional security, Trustor gives and confers upon Beneficiary
the right, power and authority to collect all of Trustor's right, title and
interest in any income, rents, issues and profits of Trustor's right, title and
interest in and to the Wind Park Easement Agreement; provided, however, until
the occurrence of an event of default in respect of Trustor under this Deed of
Trust as provided in Paragraph 4.01 (hereinafter an "Event of Default"), Trustor
reserves the right to collect any such income, rents, issues and profits as they
become due and payable. When such an Event of Default in respect of Trustor has
occurred and is continuing, Beneficiary may at any time, either in person, by
agent or by a receiver to be appointed by a court of competent jurisdiction, and
without regard to the adequacy of any security for the obligations secured by
this Deed of Trust, sue for or otherwise collect such income, rents, issues and
profits (including any past due and unpaid) and apply that collected, less costs
of collection including reasonable attorney's fees, against the obligations
secured by this Deed of Trust in such order as Beneficiary may determine. It is
understood and agreed that neither the foregoing assignment of income, rents,
issues and profits to the Beneficiary nor the exercise by Beneficiary of any of
its rights or remedies under this Paragraph 2.05 or Paragraph 3.01 shall be
deemed to make Beneficiary a "mortgagee-in-possession" or otherwise responsible
or liable in any manner with respect to Trustor's right, title and interest in
and to the Wind Park Easement Agreement or the use or enjoyment of Trustor's
right, title and interest in and to the Wind Park Easement Agreement, subject to
the conditions of Paragraph 6.02.
D. Other Covenants
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2.06 Trustor agrees to execute such documents and take such action as
Beneficiary shall reasonably determine to be necessary or desirable to further
evidence or continue the lien of this Deed of Trust.
2.07 Trustor agrees to pay all reasonable attorney's fees, costs and
expenses in connection with any proper action and/or actions which may be
brought, upon the occurrence of an Event of Default, for the foreclosure of this
Deed of Trust, and/or for possession of Trustor's right, title and interest in
and to the Wind Park Easement Agreement, and/or for appointment of a receiver,
and/or for the enforcement as provided in this Deed of Trust of any covenant or
right in this Deed of Trust.
III. CERTAIN RIGHTS OF BENEFICIARY
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3.01 Should an Event of Default have occurred and be continuing, then
Beneficiary may, after notice to and demand upon Trustor, without releasing
Trustor from any such Event of Default and without waiving Beneficiary's right
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to declare an Event of Default or impairing any declaration of such Event of
Default or election to cause Trustor's right, title and interest in and to the
Wind Park Easement Agreement to be sold or any sale proceeding predicated
thereon:
(a) Make or do the same in such manner and to such extent as
Beneficiary may deem reasonably necessary to protect the security of
this Deed of Trust, Beneficiary being authorized to use, enter upon and
take possession of Trustor's right, title and interest in and to the
Wind Park Easement Agreement for such purpose consistent with the
conditions of Paragraph 6.02; and
(b) Commence, appear in and/or defend any action or
proceeding purporting to affect the security of this Deed of Trust, the
interests, rights, powers and/or duties of Beneficiary under this Deed
of Trust, whether brought by or against Trustor or Beneficiary.
Beneficiary shall not be under any obligation to make any of the payments or do
any of the acts referred to in this Paragraph 3.01.
IV. DEFAULTS AND REMEDIES
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A. Defaults
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4.01 An Event of Default under this Deed of Trust shall occur if any of
the following events shall occur and be continuing:
(a) There occurs an Event of Default as defined and specified
in Section 9.1 of the Security Agreement.
(b) Trustor fails to perform any of its obligations under
this Deed of Trust, and within 30 days after Beneficiary's written
notice thereof to Trustor, Trustor shall not have cured such failure
or, if such failure is incapable of cure within 30 days, Trustor shall
not promptly commence and diligently proceed to cure such failure as
promptly as possible.
B. Remedies
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4.02 In the event of any Event of Default by Trustor under this Deed of
Trust as provided in Paragraph 4.01, then and in each such event, Beneficiary
may declare all sums secured hereby immediately due and payable either by
commencing an action to foreclose this Deed of Trust as a mortgage or by the
delivery to Trustee of a written declaration of default and demand for sale and
of written notice of default and of election to cause the right, title and
interest of Trustor in and to the Wind Park Easement Agreement to be sold, which
notice Trustee shall cause to be duly filed for record. Should Beneficiary elect
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to foreclose by exercise of the power of sale herein, Beneficiary shall also
deposit with Trustee this Deed of Trust and the Purchase Notes and such receipts
and evidence of expenditures made and secured by this Deed of Trust as Trustee
may require, and notice of sale having been given as then required by law and
after lapse of such time as may then be required by law after recordation of
such notice of default, Trustee, without demand on Trustor, shall sell the
right, title and interest of Trustor in and to the Wind Park Easement Agreement
at the time and place of sale fixed by Trustee in said notice of sale, as a
whole, at public auction to the highest bidder for cash in lawful money of the
United States, payable at time of sale. Trustee may postpone sale by public
announcement at such time and place of sale, and from time to time thereafter
may postpone such sale by public announcement at the time fixed by the preceding
postponement. Trustee shall deliver to such purchaser its deed conveying the
right, title and interest of Trustor in and to the Wind Park Easement Agreement
so sold, but without 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 Trustor, Trustee or Beneficiary, may
purchase at such sale, and upon payment in full (or credit bid by Beneficiary)
shall own the right, title and interest of Trustor in and to the Wind Park
Easement Agreement. Any deed of conveyance provided by Trustee or Beneficiary
may provide that the granting of the interest so conveyed shall not result in a
merger with any other interest or estate held by the grantee of such deed, and
the actual holding of dominant and subordinate interests or estates shall not
result in a merger of such interests or estates.
4.03 Beneficiary, from time to time before Trustee's sale, may rescind
any such notice of default and of election to cause the right, title and
interest of Trustor in and to the Wind Park Easement Agreement to be sold by
executing and delivering to Trustee a written notice of such rescission, which
notice, when recorded, shall also constitute a cancellation of any such prior
declaration of default and demand for sale. The exercise by Beneficiary of such
right of rescission shall not constitute a waiver of any Event of Default then
existing or subsequently occurring, or impair the right of beneficiary to
execute and deliver to Trustee, as above provided, other declarations of default
and demand for sale, and notices of default, and of election to cause the right,
title and interest of Trustor in and to the Wind Park Easement Agreement to be
sold to satisfy the obligations hereof, nor otherwise affect any provision,
agreement, covenant or condition of this Deed of Trust or any of the rights,
obligations or remedies under the Deed of Trust of Beneficiary or Trustee or
Trustor.
4.04 After deducting all costs, fees and expenses of Trustee and of
this Trust, including the cost of evidence of title in connection with sale and
attorney's fees, Trustee shall apply the proceeds of sale to payment of: all
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sums expended under the terms hereof, not then repaid, with accrued interest at
the rate applicable under the first Purchase Note at the time of such
expenditure; all other sums then secured by this Deed of Trust; and the
remainder, if any, to the person or persons legally entitled thereto.
4.05 Beneficiary and Trustee shall not exercise any right of
disposition of the right, title and interest of Trustor in and to the Wind Park
Easement Agreement until the occurrence and continuance of an Event of Default.
4.06 If Beneficiary at any time holds additional security for any
obligations secured by this Deed of Trust, it may enforce the terms of this Deed
of Trust or otherwise realize upon the same upon the occurrence and continuance
of an Event of Default, at its option, either before or concurrently herewith or
after a sale is made under this Deed of Trust, and may apply the proceeds upon
the indebtedness secured by this Deed of Trust without affecting the status of
or waiving any right to exhaust all or any other security, including the
security under this Deed of Trust, and without waiving any Event of Default or
any right or power whether exercised under this Deed of Trust or contained in
this Deed of Trust or in any such other security.
4.07 No remedy in this Deed of Trust conferred upon or reserved to
Trustee or Beneficiary is intended to be exclusive of any other remedy in this
Deed of Trust or by law provided or permitted, but each shall be cumulative and
shall be in addition to every other remedy given under this Deed of Trust or now
or hereafter existing at law or in equity or by statute. Every power or remedy
given under this Deed of Trust 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.
V. SUBORDINATE NATURE OF THIS DEED OF TRUST
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5.01 This Deed of Trust, the lien created by this Deed of Trust, and
any rights granted to Beneficiary under this Deed of Trust are expressly made
subject and subordinate to (1) that certain Amended Ground Lease For Wind Park
Development on the Rooney Ranch, Alameda County (the "Ground Lease") between the
City of Santa Clara, California, as Lessor, and Zond, as Lessee, and pertaining
to the Land; (ii) that certain Lease Agreement dated December 20, 1982 (the
"Grazing Lease") between the City, as Lessor, and Sylvain T. Rooney and Dennis
M. Rooney, as Lessee, and pertaining to the Land; (iii) that certain Sublease
Agreement dated June 30, 1985 (the "Sublease") between Santa Clara Wind Leasing,
Inc., a California corporation (formerly known as Wind Developers, Inc.), as
sublessor, and Wismer Becker Contracting Engineers, a California corporation
(doing business as Atkinson Mechanical Contracting CO.), as sublessee, and
pertaining to a portion of the Land; and (iv) all other matters of record at the
time of recordation of this Deed of Trust.
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5.02 This Deed of Trust is not intended to be, shall not be, and shall
not be construed to be, a lien upon the Ground Lease, Grazing Lease or Sublease.
VI. MISCELLANEOUS PROVISIONS
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6.01 By accepting payment of any sum secured by this Deed of Trust
after its due date or in an amount less than the sum due, Beneficiary does not
waive its rights to require prompt payment when due of all other sums so secured
or to declare an Event of Default as provided in this Deed of Trust in the event
sums due are only partially paid.
6.02 Trustor authorizes Beneficiary and its agents, employees or
workmen, to use and enter at any reasonable time any part of Trustor's right,
title and interest in and to the Wind Park Easement Agreement for the purposes
of inspecting the same and of performing any of the acts Beneficiary is
authorized to perform under this Deed of Trust. Such use, entry and performance
shall be consistent with the terms of the Wind Park Easement Agreement and any
other agreements affecting the Wind Park Easement Agreement and any other
agreements affecting the Wind Park Easement Agreement or the Land including
without limitation those to which Beneficiary or any of its affiliates are a
party.
6.03 This Deed of Trust applies to, inures to the benefit of, and binds
Beneficiary, Trustee, Trustor and their respective heirs, legatees, devisees,
administrators, successors and assigns. The term "Beneficiary" shall mean the
owner and holder, including pledges, of the Purchase Notes, whether or not named
as Beneficiary in this Deed of Trust. Trustor hereby consents to Beneficiary's
assignment of this Deed of Trust and Beneficiary's right, title and interest
hereunder to any lender as security for any loans made by such lender to
Beneficiary. Whenever the context so requires in this Deed of Trust, the
masculine gender includes the feminine and/or neuter, and the singular number
includes the plural.
6.04 Trustee, upon presentation to it of any affidavit signed by or on
behalf of Beneficiary, setting forth any fact or facts showing a default by
Trustor in its obligations under this Deed of Trust, is authorized to accept as
true and conclusive all facts and statements in such affidavit and to act under
this Deed of Trust in complete reliance thereon.
6.05 If any provision of this Deed of Trust should be held
unenforceable or void, then such provision shall be deemed separable from the
remaining provisions and shall in no way affect the validity of this Deed of
Trust. Unless otherwise indicated, all references to paragraphs are to
paragraphs in this deed of Trust.
6.06 Trustee accepts this Trust when this Deed of Trust, duly executed
and acknowledged, is made a public record as provided by law.
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6.07 Trustee shall be under no obligation to notify Beneficiary or
Trustor of any action or proceeding of any kind in which Trustor, Beneficiary
and/or Trustee shall be a party, unless brought by Trustee, or of any pending
sale under any other deed of trust.
6.08 Beneficiary may, from time to time, by a written instrument
executed and acknowledged by Beneficiary and recorded in Alameda County,
California, substitute a successor or successors for Trustee named herein or
acting under this Deed of Trust.
6.09 All notices under this Deed of Trust shall be deemed to have been
duly given if mailed by the United States registered or certified mail, with
return receipt requested, postage prepaid to the following addresses (or to such
other addresses as shall be given in writing by any party to the others) and
shall be deemed completed upon any such mailing:
To Trustor: Zond Windsystem
Partners, Ltd. Series 85-C
a California Limited Partnership
c/o Zond Windsystems Management
Corporation V
112 South Curry Street
Tehachapi, California 93561
Attention: Kenneth C. Karas
To Beneficiary: Zond Construction Corporation IV
112 South Curry Street
Tehachapi, California 93561
Attention: Kenneth C. Karas
In the event of any strike or occurrence of another similar event which
interrupts mail service, notices may be served personally upon an individual,
partner, or any officer or director of a corporation which is or is part of the
party being served hereunder.
6.10 Trustor requests that a copy of any notice of default and of any
notice of sale under this Deed of Trust be mailed to Trustor at its address
determined in accordance with Paragraphs 6.09.
6.11 Beneficiary and Trustee shall have no right or interest in the
right, title and interest in the right, title and interest of Trustor in and to
the Wind Park Easement Agreement when the obligations secured by this Deed of
Trust have been indefeasibly repaid or performed. Upon written request of
Beneficiary stating that all sums secured by this Deed of Trust have been paid
and upon surrender to Trustee of this Deed of Trust and the Purchase Notes for
cancellation and retention and upon payment of its fees, Trustee shall reconvey,
without any covenant or warranty, express or implied, the right, title and
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interest of Trustor in and to the Wind Park Easement Agreement then held by
Trustee under this Deed of Trust. The recitals in such reconveyance of any
matters or facts shall be conclusive proof of the truthfulness thereof. The
grantee in such reconveyance may be described as "the person or persons legally
entitled thereto."
6.12 By acceptance of this Deed of Trust, Beneficiary agrees that, in
the event of any Event of Default by Trustor under this Deed of Trust or any
event of default under the Purchase Notes or the Security Agreement,
Beneficiary's sole recourse shall be to the security granted in this Deed of
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Trust and in the Security Agreement and Trustor shall in no event be personally
liable under the Purchase Notes, the Security Agreement or this Deed of Trust.
6.13 This Deed of Trust shall be construed and enforced in accordance
with the laws of the State of California.
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the day first
written above.
ZOND WINDSYSTEM PARTNERS, LTD. SERIES 85-C,
A CALIFORNIA LIMITED PARTNERSHIP
By its general partner:
Zond Windsystems Management Corporation V,
a California corporation
By: /s/ Craig A. Anderson
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Craig A. Anderson
Senior Vice President -
General Counsel
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
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On December 11, 1985, before me, the undersigned, a Notary Public in
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and for said State, personally appeared CRAIG A. ANDERSON, personally known to
me or proved to me on the basis of satisfactory evidence to be the person who
executed the within instrument as the Senior Vice President - General Counsel of
Zond Windsystems Management Corporation V, the corporation that executed the
within instrument as the general partner of Zond Windsystem Partners, Ltd.
Series 85-C, a California Limited Partnership, the partnership that executed the
within instrument, and acknowledged to me that such corporation executed the
same as such partner and that such partnership executed the same.
WITNESS my hand and official seal.
Signature /s/ Laurie H. Nathanson [SEAL]
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EXHIBIT A
TO
DEED OF TRUST AND ASSIGNMENT OF RENTS
Legal Description of the "Property" and the "Land":
PARCEL 1:
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THE SOUTH ONE-HALF OF SECTION 21, TOWNSHIP 2 SOUTH, RANGE 3 EAST, MOUNT DIABLO
BASE AND MERIDIAN, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND FILED IN THE
DISTRICT LAND OFFICE.
EXCEPTION THEREFROM THE PAST, PRESENT AND FUTURE INTEREST RESERVED BY THE
CENTRAL PACIFIC RAILROAD COMPANY IN THE GRANT DEED RECORDED NOVEMBER 19, 1883,
IN BOOK 261 OF DEEDS, PAGE 184, SERIES NO. 5-7019, ALAMEDA COUNTY RECORDS
ALSO EXCEPTING THEREFROM THAT PORTION DESCRIBED IN THE DEED TO THE WESTERN
PACIFIC RAILWAY COMPANY, A CALIFORNIA CORPORATION, RECORDED DECEMBER 7, 1905, IN
BOOK 1076, OF DEEDS, PAGE 406, SERIES NO. L-1500, ALAMEDA COUNTY RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION DESCRIBED IN THE DEED TO R. H. SHERMAN,
RECORDED JULY 8, 1907, IN BOOK 1390 OF DEEDS, PAGE 64, SERIES NO. L-69077,
ALAMEDA COUNTY RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION DESCRIBED IN THE DEED TO THE COUNTY OF
ALAMEDA, RECORDED JANUARY 4, 1915, IN BOOK 2311 OF DEEDS, PAGE 109, SERIES NO.
P-83238, ALAMEDA COUNTY RECORDS.
PARCEL 2:
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A NON-EXCLUSIVE EASEMENT AND RIGHT OF WAY ON, OVER, UNDER AND ACROSS THE
FOLLOWING DESCRIBED REAL PROPERTY FOR USE AS A ROADWAY FOR VEHICLES OF ALL
KINDS, PEDESTRIANS AND ANIMALS, FOR WATER, GAS, OIL AND SEWER PIPES LINES, AND
FOR TELEPHONE, ELECTRIC LIGHT AND POWER LINES, TOGETHER WITH ALL NECESSARY POLES
OR CONDUITS TO CARRY SAID LINES, TO WIT:
A STRIP OF LAND 30 FEET WIDE, THE CENTER LINE OF WHICH IS DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE WESTERLY LINE OF THOSE LANDS CONVEYED TO ROBERTA I.
HAUGH, BY DECREE OF PARTIAL DISTRIBUTION, DATED SEPTEMBER 30, 1949, RECORDED IN
BOOK 5901 OF OFFICIAL RECORDS OF ALAMEDA COUNTY AT PAGE 37 THEREOF, SERIES NO.
AD/66898, SAID POINT BEING ON THE SECTION LINE BETWEEN SECTION 20 AND 21, T.
2S., R.3 E., M.D.B.6M., SOUTH 456 FEET FROM THE APPARENT NORTHWEST CORNER OF THE
SOUTHWEST QUARTER OF SAID SECTION 21 AS SAID CORNER IS DEFINED BY THE FENCE
CORNER, THENCE NORTH 41 DEGREES 26 MINUTES WEST 492.7 FEET TO THE SOUTHEASTERLY
EXHIBIT A
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RIGHT ON WAY LINE OF COUNTY ROAD NO. 818, ALSO KNOWN AS ALTAMONT PASS ROAD,
BEING A PORTION OF THE SOUTHEAST QUARTER OF SECTION 20, TOWNSHIP 2 SOUTH, RANGE
3 EAST, MOUNT DIABLO BASE AND MERIDIAN.
PARCEL 3:
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THE NORTH ONE-HALF OF SECTION 28, TOWNSHIP 2 SOUTH, RANGE 3 EAST, MOUNT DIABLO
BASE AND MERIDIAN, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND FILED IN THE
DISTRICT LAND OFFICE.
EXHIBIT A
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