PACIFIC ETHANOL MADERA LLC
(Trustor)
to
CHICAGO TITLE COMPANY
(Trustee)
for the Benefit of
HUDSON UNITED CAPITAL, A DIVISION OF TD BANKNORTH, N.A.,
as Administrative Agent
(Beneficiary)
-------------------------------------------------
DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
(Floating Rate Loan)
Dated: April 13, 2006
Property Location: Madera, California
DOCUMENT PREPARED BY AND WHEN RECORDED, RETURN TO:
Baker & McKenzie LLP
One Prudential Plaza
130 E. Randolph
Chicago, IL 60601
Attention: Christopher L. Kopecky
================================================================================
This DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT
AND FIXTURE FILING (this "Deed of Trust"), made as of April 13, 2006, by PACIFIC
ETHANOL MADERA LLC, a Delaware limited liability company ("Trustor"), 31470
Avenue 12, Madera, California 93638, to CHICAGO TITLE COMPANY, having an address
of 7730 North Palm, Suite 101, Fresno, California 93711 ("Trustee"), as Trustee,
for the benefit of HUDSON UNITED CAPITAL, A DIVISION OF TD BANKNORTH, N.A., a
national banking association as Administrative Agent (together with its
successors and assigns, hereinafter referred to as "Beneficiary"), having an
address of 101 Post Road East, Westport, Connecticut 06880.
WITNESSETH
WHEREAS, Trustor is the owner of the real property described on
Exhibit A attached hereto (the "Site");
WHEREAS, Trustor proposes to construct and operate on the Site an
ethanol production facility and other facilities that are ancillary, incidental,
necessary or related to the marketing, management, servicing, ownership or
operation of the foregoing (the "Project");
WHEREAS, Trustor and Beneficiary have entered into a Construction and
Term Loan Agreement dated as of the date hereof (as amended, modified, restated,
consolidated or supplemented from time to time, the "Loan Agreement") pursuant
to which Beneficiary is making secured loans to Trustor in the aggregate maximum
principal amount of up to Thirty Four Million Dollars ($34,000,000.00) (the
"Loan");
WHEREAS, the Loan is evidenced by Construction Loan Notes dated the
date hereof made by Trustor to Beneficiary (as the same may be amended,
modified, restated, severed, consolidated, renewed, replaced, or supplemented
from time to time, including without limitation, by Term Loan Notes, the
"Notes"); and
WHEREAS, capitalized terms not otherwise defined in this Deed of Trust
shall have the respective meanings given such terms in the Loan Agreement and
the Loan Agreement will control the implementation and interpretation of this
Deed of Trust in the event of inconsistency between the two documents;
NOW, THEREFORE, to secure the payment of the Notes and all sums which
may or shall become due thereunder or under any of the other documents
evidencing, securing or executed in connection with the Loan (the Notes, this
Deed of Trust, the Loan Agreement and such other documents, as any of the same
may, from time to time, be modified, amended or supplemented, being hereinafter
collectively referred to as the "Loan Documents"), Trustor has given, granted,
bargained, sold, alienated, enfeoffed, conveyed, confirmed, warranted, pledged,
assigned and hypothecated and by these presents does hereby give, grant,
bargain, sell, alien, enfeoff, convey, confirm, warrant, pledge, assign and
hypothecate unto Trustee, in trust for the benefit of Beneficiary, WITH POWER OF
SALE, all right, title, interest and estate of Trustor in and to the Site, and
the buildings, structures, fixtures and other improvements now or hereafter
located thereon;
TOGETHER WITH: all right, title, interest and estate of Trustor now
owned, or hereafter acquired, in and to the following property, rights,
interests and estates (the property, rights, interests and estates hereinafter
described are collectively referred to herein as the "Trust Property"):
(a) the Site;
(b) all buildings, improvements and fixtures now or hereafter located
on the Site, including, but not limited to, the Project and the Grain
Facilities (the "Improvements");
(c) all of the estate, right, title, claim or demand of any nature
whatsoever of Trustor, either in law or in equity, in possession or
expectancy, in and to the Site and the Improvements or any part thereof;
(d) any and all easements, rights-of-way, gores of land, streets,
ways, alleys, passages, sewer rights, waters, water courses, water rights
and powers, and all estates, rights, titles, interests, privileges,
liberties, tenements, hereditaments, revocable consents, options,
appendages and appurtenances of any nature whatsoever, in any way
belonging, relating or pertaining to the Trust Property (including, but not
limited to, any and all development rights, option rights, air rights or
similar or comparable rights of any nature whatsoever now or hereafter
appurtenant to the Site or now or hereafter transferred to the Site) and
all land lying in the bed of any street, road or avenue, opened or
proposed, in front of or adjoining the Site to the center line thereof;
(e) all machinery, apparatus, equipment, fittings, fixtures and other
property of every kind and nature whatsoever owned by Trustor, or in which
Trustor has an interest, now or hereafter located upon the Site, or
appurtenant thereto, and usable in connection with the present or future
operation and occupancy of the Trust Property and all equipment, materials,
supplies, apparatus and other items now or hereafter attached to, installed
in or used on the Site (temporarily or permanently) of any nature
whatsoever and all renewals, replacements and substitutions thereof and
additions thereto, including but not limited to any and all partitions,
ducts, shafts, pipes, radiators, conduits, wiring, floor coverings,
awnings, motors, engines, boilers, stokers, pumps, dynamos, transformers,
turbines, generators, fans, blowers, vents, switchboards, elevators, mail
or coal conveyors, escalators, compressors, furnaces, cleaning equipment,
call and sprinkler systems, fire extinguishing apparatus, water and other
tanks, heating, ventilating, plumbing, laundry, incinerating, air
conditioning and air cooling systems and water, gas, telephone,
telecommunications, telemetry and electric equipment (collectively, the
"Equipment");
(f) all awards or payments, including interest thereon, and the right
to receive the same, which may be made with respect to the Trust Property,
whether from state fund sharing or from the exercise of the right of
eminent domain (including any transfer made in lieu of the exercise of said
right), changes of grade of street or for any other injury to or decrease
in the value of the Trust Property, whether direct or consequential, which
said awards and payments are hereby assigned to Beneficiary, and
Beneficiary is hereby authorized to collect and receive the proceeds
thereof and to give proper receipts and acquittances therefor;
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(g) all refunds or rebates of Taxes (as hereinafter defined) or
charges in lieu of Taxes now or hereafter assessed or levied against the
Trust Property;
(h) all franchises, concessions, permits, licenses, contracts and
other agreements relating to the operation and use of the Trust Property;
(i) all leases (including oil, gas and other mineral leases),
subleases, real property licenses, and other agreements granting rights to
use or occupy the Trust Property now or hereafter entered into and any
renewals or extensions thereof (collectively, the "Leases"; provided,
however, that the term Leases shall not include any operation and
maintenance agreements, management agreements or supply agreements related
to the Trust Property);
(j) the right to receive and apply the rents, issues and profits of
the Trust Property under the Leases (collectively, the "Rents") to the
payment of the Obligations;
(k) all accounts (including reserve accounts), escrows, documents,
instruments, chattel paper, claims, deposits and general intangibles, as
the foregoing terms are defined in the Uniform Commercial Code of the State
of California (the "Uniform Commercial Code") and all franchises, trade
names, trademarks, symbols, service marks, books, records, plans,
specifications, designs, drawings, surveys, title insurance policies,
permits, consents, licenses, management agreements, contract rights
(including any contract with any architect or engineer or with any other
provider of goods or services for or in connection with any construction,
repair or other work upon the Trust Property), approvals, actions, refunds
of real estate taxes and assessments (and any other governmental
impositions related to the Trust Property) and causes of action that now or
hereafter relate to, are derived from or are used in connection with the
Trust Property, or the use, operation, maintenance, occupancy or enjoyment
thereof or the conduct of any business or activities;
(l) subject to the terms of the Loan Agreement, all proceeds of and
any unearned premiums on any insurance policies covering the Trust
Property, including without limitation the right to receive and apply the
proceeds of any insurance, judgments, or settlements made in lieu thereof,
for damage to the Trust Property;
(m) to the extent permitted by Law, the right, in the name and on
behalf of Trustor, to appear in and defend any action or proceeding brought
with respect to the Trust Property and to commence any action or proceeding
to protect the interest of Beneficiary in the Trust Property;
(n) all plans and specifications prepared for or in connection with
the Improvements and all studies, data and drawings related thereto;
(o) all building materials and goods which are procured or are
hereafter procured for use on or in connection with the Improvements or the
construction of additional Improvements, whether or not such materials and
goods have been delivered to the Site; and
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(p) all products and proceeds of any of the Trust Property herein
described.
TO HAVE AND TO HOLD the above granted and described Trust Property
unto and to the proper use and benefit of Beneficiary, and the successors and
assigns of Beneficiary, forever, to secure the following obligations
(hereinafter collectively referred to as the "Obligations"):
(i) payment of the indebtedness evidenced by the Notes delivered by
Trustor to the Lenders pursuant to the Loan Agreement;
(ii) payment, performance and observance of each term, covenant and
condition to be paid, performed or observed by Trustor under the Loan
Agreement, the Notes and the other Loan Documents;
(iii) payment of all sums required to be paid and performance and
observance of each term, covenant and condition contained in this Deed of
Trust to be performed or observed by Trustor under this Deed of Trust;
(iv) payment of all sums expended or advanced by Beneficiary pursuant
to the terms of this Deed of Trust, the Loan Agreement or any other Loan
Documents;
(v) the payment of interest and other amounts which would accrue and
become due but for the filing of a petition in bankruptcy (whether or not a
claim is allowed against Trustor for such interest or other amounts in any
such bankruptcy proceeding) or the operation of the automatic stay under
Section 362(a) of Title 11 of the United States Code (the "Bankruptcy
Code"), and
(vi) the costs and expenses of enforcing any provision of any Loan
Document.
TO HAVE AND TO HOLD the Trust Property unto and to the use and benefit
of Beneficiary and its successors and assigns, forever;
PROVIDED, HOWEVER, these presents are upon the express condition that,
if Trustor shall well and truly pay to Beneficiary the Obligations at the time
and in the manner provided in the Loan Documents and shall well and truly abide
by and comply with each and every covenant and condition set forth in the Loan
Documents in a timely manner, these presents and the estate hereby granted shall
cease, terminate and be void;
AND Trustor represents and warrants to and covenants and agrees with
Beneficiary as follows:
PART I - GENERAL PROVISIONS
1. Payment of Obligations and Incorporation of Covenants, Conditions
and Agreements. Trustor shall pay the Obligations at the time and in the manner
provided in the Loan Documents. All the covenants, conditions and agreements
contained in the Loan Documents are hereby made a part of this Deed of Trust to
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the same extent and with the same force as if fully set forth herein. All
advances made and all indebtedness arising and accruing under the Loan Agreement
with respect to the Loans thereunder from time to time will be secured hereby.
2. Warranty of Title. Subject only to Permitted Liens, Trustor
warrants that Trustor is the owner and holder of (i) a valid and subsisting fee
estate in and to the Site, (ii) marketable title to the Improvements and
Equipment, and (iii) good title to all other portions of the Trust Property.
Trustor covenants that Trustor will as required by the Loan Agreement, at all
times and at Trustor's sole expense warrant and defend the title to the Trust
Property, subject to Permitted Liens, against the claims and demands of all
persons whomsoever.
3. Insurance. Trustor will keep the Improvements and the Equipment
insured as will, from time to time, be required in accordance with the Loan
Agreement. If at any time Beneficiary is not in receipt of written evidence that
all insurance required hereunder and under the Loan Agreement is in full force
and effect, Beneficiary has the right to take such action as Beneficiary deems
necessary to protect the Trust Property, including without limitation the
obtaining of such insurance coverage as Beneficiary determines to be
commercially reasonable, and all expenses incurred by Beneficiary in connection
with such action or in obtaining such insurance and keeping it in effect will be
paid or arranged to be paid by Trustor to Beneficiary upon demand. Any amounts
not so paid or arranged to be paid by Trustor will be deemed secured by this
Deed of Trust. Trustor will at all times comply with and will cause the
Improvements and Equipment and the use, occupancy, operation, maintenance,
alteration, repair and restoration thereof to comply in all material respects
with the terms, conditions, stipulations and requirements of the insurance
policies procured and maintained pursuant to the Loan Agreement (the
"Policies"). Because the Site is located in a Federally designated "special
flood hazard area," Trustor will at all times maintain flood insurances as
required under the Loan Agreement. If the Trust Property is damaged or
destroyed, in whole or in part, by fire or other property hazard or casualty,
Trustor will give prompt notice thereof to Beneficiary and any proceeds received
by Beneficiary will be held and disbursed as set forth in the Loan Agreement.
4. Payment of Taxes, etc. Trustor will pay, or cause to be paid, all
taxes or charges in lieu of taxes, assessments, water rates, sewer rents and
other charges, now or hereafter levied or assessed against the Trust Property
(the "Taxes") prior to the date upon which any fine, penalty, interest or cost
may be added thereto or imposed by law for the nonpayment thereof, subject, in
all events, to Trustor's rights to contest Taxes in accordance with the Loan
Agreement. Trustor will deliver to Beneficiary, upon Beneficiary's request,
receipted bills, canceled checks and other evidence reasonably satisfactory to
Beneficiary evidencing the payment of the Taxes prior to the date upon which any
fine, penalty, interest or cost may be added thereto or imposed by law for the
nonpayment thereof (as any such date may be extended pursuant to exercise of the
right of Trustor to contest Taxes in accordance with the Loan Agreement).
5. Condemnation. Notwithstanding any taking by any public or
quasi-public authority through eminent domain or otherwise, Trustor will
continue to pay the Obligations at the time and in the manner provided for its
payment in the Notes, the Loan Agreement and the Loan Documents and the
Obligations will not be reduced until (and only to the extent) any award or
payment therefor has been actually received and applied by Beneficiary to the
discharge of the Obligations in accordance with the provisions of the Loan
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Agreement. Beneficiary will apply the amount of any such award or payment in
accordance with the Loan Agreement. If the Trust Property is sold, through
foreclosure or otherwise, prior to the receipt by Beneficiary of such award or
payment, Beneficiary has the right, whether or not a deficiency judgment on the
Obligations has been sought, recovered or denied, to receive such award or
payment, or a portion thereof sufficient to pay the Obligations, whichever is
less. Trustor will file and prosecute its claim or claims for any such award or
payment in good faith and with due diligence and cause the same to be collected
and paid over to Beneficiary. Trustor hereby irrevocably authorizes and empowers
Beneficiary, in the name of Trustor or otherwise to collect and receipt for any
such award or payment and to file and prosecute such claim or claims if (a)
Trustor fails to do so within a reasonable time prior to the expiration of the
period allowed therefor under Applicable Law, or (b) an Event of Default has
occurred and is continuing. Although it is hereby expressly agreed that the same
will not be necessary in any event, Trustor will, upon demand of Beneficiary,
make, execute and deliver any and all assignments and other instruments
sufficient for the purpose of assigning any such award or payment to
Beneficiary, free and clear of any encumbrances of any kind or nature
whatsoever.
6. Leases and Rents.
(a) Trustor hereby assigns to Beneficiary as security for the payment
of the Obligations and the observance and performance by Trustor of all of the
terms, covenants and provisions of this Deed of Trust, the Loan Agreement and
the Loan Documents on Trustor's part to be observed or performed, all of
Trustor's right, title and interest in and to the Leases and the Rents. Subject
to the terms of this paragraph, Beneficiary waives the right to enter the Trust
Property for the purpose of collecting the Rents, and grants Trustor the right
to collect the Rents. The right of Trustor to collect the Rents may be revoked
by Beneficiary upon the occurrence and continuance of any Event of Default by
giving prior notice of such revocation to Trustor. Following such notice,
Beneficiary may retain and apply the Rents toward payment of the Obligations in
accordance with the provisions of the Loan Agreement, or to the operation,
maintenance and repair of the Trust Property, and irrespective of whether
Beneficiary has commenced a foreclosure of this Deed of Trust or has applied or
arranged for the appointment of a receiver. Trustor will not, without the
consent of Beneficiary, which consent will not be unreasonably withheld,
conditioned or delayed, make, or suffer to be made, any Leases or modify or
cancel any Leases or accept prepayments of installments of the Rents for a
period of more than one (1) month in advance or further assign the whole or any
part of the Rents. Trustor will (i) fulfill or perform each and every provision
of the Leases on the part of Trustor to be fulfilled or performed, (ii) promptly
send copies of all notices of default that Trustor sends or receives under the
Leases to Beneficiary, and (iii) enforce, short of termination of the Leases,
the performance or observance of the material provisions thereof by the other
parties thereto.
(b) Trustor agrees that it will not further pledge or assign its
interest in any of the Leases, or further assign the Rents so long as any part
of the Obligations remains unpaid or unreleased, without the written consent of
Beneficiary, which will not be unreasonably withheld or delayed. After
commencement of a foreclosure action hereunder, in addition to the rights that
Beneficiary may have herein, to the extent permitted by law, Beneficiary may, at
its option, require Trustor to pay monthly in advance to Beneficiary or any
receiver appointed to collect the Rents, the fair and reasonable rental value
for the use and occupation of such part of the Trust Property as may be in
possession of Trustor.
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(c) Nothing contained in this paragraph will be construed as imposing
on Beneficiary any of the obligations of the lessor under the Leases.
7. Maintenance of the Trust Property. (a) Trustor will cause the Trust
Property to be maintained in good condition and repair in accordance with the
provisions of the Loan Agreement and will not commit or suffer to be committed
any waste of the Trust Property. The Improvements and the Equipment will not be
removed, demolished or materially altered (except for normal replacement of the
Equipment or as otherwise permitted by the Loan Documents), without the prior
written consent of Beneficiary, which will not be unreasonably withheld or
delayed.
(b) Trustor will promptly comply with all Laws and Environmental Laws
affecting the Trust Property, or any portion thereof or the use thereof, in
accordance with the provisions of the Loan Agreement. Trustor will comply with
the requirements of all easements, rights-of-way, grants, privileges, licenses,
franchises and restrictive covenants which from time to time benefit or pertain
to the whole or any portion of the Trust Property. Except as otherwise permitted
under the Loan Agreement, Trustor will not modify, amend or terminate, or
surrender any of its rights under, rights-of-way, easements, grants, privileges,
licenses, franchises or restrictive covenants, without the consent of
Beneficiary, which Beneficiary shall not withhold, unless Beneficiary reasonably
believes that such action could result in a Material Adverse Effect. Except as
otherwise permitted by the terms of the Loan Agreement, Trustor will not alter
the use of the Trust Property without the prior written consent of Beneficiary
(which will not be unreasonably withheld or delayed), and Trustor will not,
without obtaining the prior written consent of Beneficiary (which will not be
unreasonably withheld or delayed), initiate, join in or consent to any private
restrictive covenant, zoning ordinance, or other public or private restrictions,
limiting or affecting the uses that may be made of the Trust Property or any
part thereof.
8. Estoppel Certificates. Trustor, within ten (10) days after request
by Beneficiary and at its expense, will furnish Beneficiary with a statement,
duly acknowledged and certified, setting forth the amount of the Obligations and
the offsets or defenses thereto, if any.
9. Transfer or Encumbrance of the Trust Property. Except as otherwise
permitted by the terms of the Loan Agreement, no part of the Trust Property and
no legal or beneficial interest in Trustor may in any manner be further
encumbered, sold, transferred, assigned or conveyed, or permitted to be further
encumbered, sold, transferred, assigned or conveyed without the consent of
Beneficiary. The provisions of this paragraph will apply to each and every such
further encumbrance, sale, transfer, assignment or conveyance, regardless of
whether or not Beneficiary has consented to, or waived by its action or inaction
its rights hereunder with respect to any such previous further encumbrance,
sale, transfer, assignment or conveyance and irrespective of whether such
further encumbrance, sale, transfer, assignment or conveyance is voluntary, by
reason of operation of law or is otherwise made.
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10. Notices. All notices, consents, directions, approvals,
authorizations, instructions, demands, statements, requests and other
communications given or made hereunder or in connection herewith will be sent in
accordance with the provisions of Section 8.20 of the Loan Agreement.
11. Changes in Laws Regarding Taxation. In the event of the passage
after the date of this Deed of Trust of any law of the State of California
deducting from the value of real property for the purpose of taxation any lien
or encumbrance thereon or changing in any way the laws for the taxation of
mortgages or deeds of trust or debts secured by mortgages or deeds of trust for
state or local purposes or the manner of the collection of any such taxes, and
imposing a tax, either directly or indirectly, on this Deed of Trust, the Notes,
the Loan Agreement, any of the Loan Documents or the Obligations, Trustor will,
if permitted by law, pay any tax imposed as a result of any such law within the
statutory period or within thirty (30) days after demand by Beneficiary,
whichever is less; provided, that if, in the opinion of the attorneys for
Beneficiary, Trustor is not permitted by law to pay such taxes, Beneficiary has
the right, at its option, to add any amount of such taxes to the Obligations.
12. No Credits on Account of the Obligations. Trustor will not claim
or demand or be entitled to any credit or credits on account of the Obligations
for any part of the Taxes assessed against the Trust Property or any part
thereof and no deduction will otherwise be made or claimed from the taxable
value of the Trust Property, or any part thereof, by reason of this Deed of
Trust or the Obligations.
13. Other Security for the Obligations. Trustor will observe and
perform all of the terms, covenants and provisions on the part of Trustor to be
observed and performed contained in the Loan Agreement and the Loan Documents
and in all other mortgages and other instruments or documents evidencing,
securing or guaranteeing payment of the Obligations, in whole or in part, or
otherwise executed and delivered in connection with the Loan Agreement, the
Notes or this Deed of Trust.
14. Documentary Stamps. If at any time the United States of America,
any state thereof or any governmental subdivision of any such state, requires
revenue or other stamps to be affixed to the Notes or this Deed of Trust,
Trustor will pay or arrange to pay the same, with interest and penalties
thereon, if any.
15. Right of Entry. Beneficiary and its agents have the right to enter
and inspect the Trust Property as provided in the Loan Agreement.
16. Books and Records. Trustor will comply with all of the provisions
and requirements of the Loan Agreement concerning its books, records and
accounts reflecting the financial affairs of Trustor and the Project.
17. Performance of Other Agreements. Trustor will observe and perform
each and every material term to be observed or performed by Trustor pursuant to
the terms of any agreement or recorded instrument affecting or pertaining to the
Trust Property.
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18. Events of Default. The Obligations will become due at the option
of Beneficiary if any Event of Default under the Loan Agreement occurs and is
continuing ("Events of Default").
19. Right to Cure Events of Default. If an Event of Default in the
performance of any of the covenants of Trustor herein occurs, Beneficiary,
without waiving any default or releasing Trustor from any obligation, may (but
will be under no obligation to) remedy the same for the account and at the cost
and expense of Trustor, and for such purpose has the right to enter upon the
Trust Property during normal business hours without thereby becoming liable to
Trustor or any person in possession thereof holding under Trustor. If
Beneficiary remedies such Event of Default or appears in, defends or brings any
action or proceeding to protect its interest in the Trust Property or to
foreclose this Deed of Trust or collect the Obligations, all reasonable and
documented costs and expenses actually incurred (including without limitation
reasonable attorneys' fees) will be paid or arranged to be paid by Trustor to
Beneficiary on demand with interest to the date of payment to Beneficiary at the
Default Rate. All such costs and expenses incurred by Beneficiary, with interest
at the Default Rate, will be secured by this Deed of Trust.
20. Appointment of Receiver. Beneficiary, in any action to foreclose
this Deed of Trust or upon Beneficiary's reasonable determination that actual or
threatened waste exists respecting to any part of the Trust Property or upon the
occurrence and continuance of any Event of Default hereunder, will be at liberty
to apply for the appointment of a receiver of the Rents, and will be entitled to
the appointment of such receiver as a matter of right, without regard to the
value of the Trust Property as security for the Obligations, or the solvency or
insolvency of any person then liable for the payment of the Obligations.
21. Remedies Upon an Event of Default. Upon the occurrence and
continuance of any Event of Default, Beneficiary may take such action, without
notice or demand, as it deems advisable to protect and enforce its rights
against Trustor and in and to the Trust Property, by Beneficiary itself or
otherwise, including the following actions, each of which may be pursued
concurrently or otherwise, at such time and in such order as Beneficiary may
determine, in its sole discretion, without impairing or otherwise affecting the
other rights and remedies of Beneficiary:
(a) declare the entire Obligations to be immediately due and payable;
(b) institute a proceeding or proceedings, judicial or nonjudicial, to
the extent permitted by law, by advertisement or otherwise, for the
complete foreclosure of this Deed of Trust, in which case the Trust
Property may be sold for cash or upon credit in one or more parcels or in
several interests or portions and in any order or manner;
(c) with or without entry, to the extent permitted and pursuant to the
procedures provided by applicable law, institute proceedings for the
partial foreclosure of this Deed of Trust for the portion of the
Obligations then due and payable, subject to the continuing lien of this
Deed of Trust for the balance of the Obligations not then due;
(d) sell for cash or upon credit the Trust Property and all estate,
claim, demand, right, title and interest of Trustor therein and rights of
redemption thereof, pursuant to the power of sale, to the extent permitted
by law, or otherwise, at one or more sales, as an entirety or in parcels,
at such time and place, upon such terms and after such notice thereof as
may be required or permitted by law;
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(e) institute an action, suit or proceeding in equity for the specific
performance of any covenant, condition or agreement contained herein or in
any other Loan Document;
(f) recover judgment on the Notes either before, during or after any
proceeding for the enforcement of this Deed of Trust;
(g) apply for the appointment of a trustee, receiver, liquidator or
conservator of the Trust Property, without notice and without regard for
the adequacy of the security for the Obligations and without regard for the
solvency of the Trustor or of any person, firm or other entity liable for
the payment of the Obligations;
(h) enforce Beneficiary's interest in the Leases and Rents and enter
into or upon the Trust Property, either personally or by its agents,
nominees or attorneys and dispossess Trustor and its agents and employees
therefrom, and thereupon Beneficiary may (A) use, operate, manage, control,
insure, maintain, repair, restore and otherwise deal with the Trust
Property and conduct the business thereat; (B) complete any construction on
the Trust Property in such manner and form as Beneficiary reasonably deems
advisable; (C) make alterations, additions, renewals, replacements and
improvements to or on the Trust Property; (D) exercise all rights and
powers of Trustor with respect to the Trust Property, whether in the name
of Trustor or otherwise, including the right to make, cancel, enforce or
modify Leases, obtain and evict tenants, and demand, sue for, collect and
receive Rents; and (E) apply the receipts from the Trust Property to the
payment of the Obligations, after deducting therefrom all expenses
(including reasonable attorneys' fees and disbursements) incurred in
connection with the aforesaid operations and all amounts necessary to pay
the Taxes, insurance and other charges in connection with the Trust
Property, as well as just and reasonable compensation for the services of
Beneficiary, and its counsel, agents and employees; or
(i) pursue such other rights and remedies as may be available at law
or in equity or under the Uniform Commercial Code.
In the event of a sale, by foreclosure or otherwise, of less than all
of the Trust Property, this Deed of Trust shall continue as a lien on the
remaining portion of the Trust Property.
22. Trustor as Tenant Holding Over. In the event of any foreclosure
sale contemplated under paragraph 21 hereof, Trustor will be deemed to be a
tenant holding over and will forthwith deliver possession to the purchaser or
purchasers at such sale or be summarily dispossessed according to provisions of
Law applicable to tenants holding over.
23. Discontinuance of Proceedings. In case Beneficiary has proceeded
to enforce any right, power or remedy under this Deed of Trust by foreclosure,
entry or otherwise, and such proceeding has been withdrawn, discontinued or
abandoned for any reason prior to a final determination in such proceedings,
then in every such case (a) Trustor and Beneficiary will be restored to their
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former positions and rights, (b) all rights, powers and remedies of Beneficiary
will continue as if no such proceeding had been taken, (c) each and every
uncured Event of Default declared or occurring prior or subsequent to such
withdrawal, discontinuance or abandonment will be or will be deemed to be a
continuing Event of Default and (d) neither the Obligations, this Deed of Trust,
the Notes, the Loan Agreement nor the other Loan Documents, will be or will be
deemed to have been affected by such withdrawal, discontinuance or abandonment;
and Trustor hereby expressly waives the benefit of any statute or rule of law
now provided, or which may hereafter conflict with the above.
24. No Reinstatement. If an Event of Default has occurred and
Beneficiary has accelerated the Obligations and proceeded to enforce any right,
power or remedy permitted hereunder, then a tender of payment by Trustor or by
anyone on behalf of Trustor of any amount less than the amount necessary to
satisfy the Obligations in full, or the acceptance by Beneficiary of any such
payment so tendered, will not constitute a reinstatement of this Deed of Trust,
the Notes, the Loan Agreement or any Loan Document.
25. Trustor's Waiver of Rights. To the full extent permitted by Law,
except as otherwise specifically and expressly provided in this Deed of Trust,
the Loan Agreement or any Loan Documents, Trustor waives (i) the benefit of all
Laws now existing or that hereafter may be enacted providing for any
appraisement before sale of any portion of the Trust Property and (ii) the
benefit of all Laws that may be hereafter enacted in any way extending the time
for the enforcement of the collection of the Obligations, or creating or
extending a period of redemption from any sale made in collecting said
Obligations. To the full extent that Trustor may do so, Trustor agrees that
Trustor will not at any time insist upon, plead, claim or take the benefit or
advantage of any law now or hereafter in force providing for any appraisement,
valuation, stay, extension or redemption, or any so-called "Moratorium Laws" and
Trustor, for Trustor and its successors and assigns, and for any and all persons
ever claiming any interest in the Trust Property, hereby waives and releases all
rights of redemption, valuation, appraisement, stay of execution, notice of
election to mature or declare due the whole of the secured indebtedness and
marshaling in the event of foreclosure of the liens hereby created. If any Law
referred to in this paragraph and now in force, of which Trustor, Trustor's
successors and assigns or any other person might take advantage despite this
paragraph, is hereafter repealed or ceases to be in force, such Law will not
thereafter be deemed to preclude the application of this paragraph.
26. Non-Waiver. The failure of Beneficiary to insist upon strict
performance of any term of this Deed of Trust will not be deemed to be a waiver
of any term of this Deed of Trust. Trustor will not be relieved of its
obligation to pay the Obligations at the time and in the manner provided for its
payment in the Notes, the Loan Agreement and the Loan Documents (nor will any of
Trustor's other obligations hereunder or obligations under the Loan Agreement or
the other Loan Documents be in any way affected) by reason of (i) failure of
Beneficiary to comply with any request of Trustor to take any action to
foreclose this Deed of Trust or otherwise enforce any of the provisions hereof
or of the Notes, the Loan Agreement, any other Loan Documents or any other
mortgage, instrument or document evidencing, securing or guaranteeing payment of
the Obligations or any portion thereof, (ii) the release, regardless of
consideration, of the whole or any part of the Trust Property or any other
security for the Obligations, or (iii) any agreement or stipulation between
Beneficiary and any subsequent owner or owners of the Trust Property or other
person extending the time of payment or otherwise modifying or supplementing the
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terms of the Notes, the Loan Agreement, the Loan Documents, this Deed of Trust
or any other mortgage, instrument or document evidencing, securing or
guaranteeing payment of the Obligations or any portion thereof, without first
having obtained the consent of Trustor (which consent will not be unreasonably
withheld or delayed), will continue to be obligated to pay the Obligations at
the time and in the manner provided in the Notes, the Loan Agreement, the Loan
Documents, and this Deed of Trust (as so extended, modified or supplemented, if
such be the case) and will continue to be obligated to perform its other
obligations hereunder and under the Loan Agreement and the Loan Documents (in
each case, as so extended, modified and supplemented) unless expressly released
and discharged from such obligation by Beneficiary in writing. Regardless of
consideration, and (subject to the Loan Agreement) without the necessity for any
notice to or consent by the holder of any subordinate lien, encumbrance, right,
title or interest in or to the Trust Property, Beneficiary may release any
person at any time liable for the payment of the Obligations or any portion
thereof or any part of the security held for the Obligations and may extend the
time of payment or otherwise modify the terms of the Notes, the Loan Agreement,
the Loan Documents or this Deed of Trust (including without limitation a
modification of the interest rate payable on the principal balance of the Notes)
without in any manner impairing or affecting this Deed of Trust or the lien
thereof or the priority of this Deed of Trust, as so extended and modified, as
security for the Obligations over any such subordinate lien, encumbrance, right,
title or interest.
27. Remedies Cumulative. Beneficiary may resort for the payment of the
Obligations to any other security held by Beneficiary in such order and manner
as Beneficiary, in its discretion, may elect. Beneficiary may take action to
recover the Obligations, or any portion thereof, or to enforce any covenant
hereof without prejudice to the rights of Beneficiary thereafter to foreclose
this Deed of Trust. Beneficiary will not be limited exclusively to the rights
and remedies herein stated but will be entitled to every additional right and
remedy now or hereafter afforded by Law or equity. The rights of Beneficiary
under this Deed of Trust will be separate, distinct and cumulative and none will
be given effect to the exclusion of the others. No act of Beneficiary will be
construed as an election to proceed under any one provision herein to the
exclusion of any other provision. Beneficiary will be entitled to enforce
payment of the Obligations and performance of any of the obligations of Trustor
and to exercise all rights and powers under this Deed of Trust or under any
other Loan Document or any Laws now or hereafter in force, notwithstanding that
some or all of such obligations may now or hereafter be otherwise secured,
whether by mortgage, pledge, lien, assignment or otherwise. Neither the
acceptance of this Deed of Trust nor its enforcement, whether by court action or
pursuant to other powers herein contained, will prejudice or in any manner
affect Beneficiary's right to realize upon or enforce any other security now or
hereafter held by Trustor, it being stipulated that Beneficiary will be entitled
to enforce this Deed of Trust and any other security now or hereafter held by
Beneficiary in such order and manner as Beneficiary, in accordance with the
terms hereof, may determine. Every power or remedy given by the Loan Agreement,
this Deed of Trust or any of the other Loan Documents to Beneficiary or to which
Beneficiary is otherwise entitled, may be exercised, concurrently or
independently, from time to time and as often as may be deemed expedient by
Beneficiary.
28. Liability. If Trustor consists of more than one person, the
obligations and liabilities of each such person hereunder will be joint and
several.
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29. Prepayment After Event of Default. If following the occurrence of
any Event of Default under this Deed of Trust and an exercise by Beneficiary of
its option to declare the Obligations immediately due, Trustor tenders payment
of an amount sufficient to satisfy the entire Obligations at any time prior to a
sale of the Trust Property, any such payment will be accepted by Beneficiary
only if such payment is permitted at such time under the provisions of the Loan
Agreement and the Loan Documents.
30. Construction. The terms of this Deed of Trust will be construed in
accordance with the laws of the State of California.
31. Security Agreement. This Deed of Trust constitutes both a real
property mortgage and a "security agreement" within the meaning of the Uniform
Commercial Code of the State of California and the Trust Property includes both
real and personal property and all other rights and interest, whether tangible
or intangible in nature, of Trustor in the Trust Property. Trustor, by executing
and delivering this Deed of Trust, has granted to Beneficiary, as security for
the Obligations, a security interest in such of the Trust Property as is
governed by the Uniform Commercial Code. Upon the occurrence and continuation of
an Event of Default hereunder, Beneficiary, in addition to any other rights and
remedies it may have, has and may exercise immediately and without demand, any
and all rights and remedies granted to a secured party upon default under the
Uniform Commercial Code including, without limiting the generality of the
foregoing, the right to take possession of such of the Trust Property as is
governed by the Uniform Commercial Code personally, through an agent or by means
of a court-appointed receiver, and to take such other measures as Beneficiary
may deem necessary for the care, protection and preservation of such part of the
Trust Property. Upon request or demand of Beneficiary, Trustor will at its
expense assemble such of the Trust Property as is governed by the Uniform
Commercial Code and make it available to Beneficiary at a convenient place
acceptable to Beneficiary. Trustor will pay or arrange to be paid to Beneficiary
on demand any and all reasonable and documented expenses, including reasonable
legal expense and attorneys' fees, incurred or paid by Beneficiary in protecting
the interest in the Trust Property herein granted and in enforcing its rights
hereunder with respect to such part of the Trust Property. Any notice of sale,
disposition or other intended action by Beneficiary with respect to such part of
the Trust Property sent to Trustor in accordance with the provisions of this
Deed of Trust at least thirty (30) days prior to the date of any such sale,
disposition or other action, will constitute reasonable notice to Trustor, and
the method of sale or disposition or other intended action set forth or
specified in such notice will conclusively be deemed to be commercially
reasonable within the meaning of the Uniform Commercial Code unless objected to
in writing by Trustor within ten (10) days after receipt by Trustor of such
notice.
32. Further Acts, etc. Trustor will, at the cost of Trustor and
without expense to Beneficiary, do, execute, acknowledge and deliver all such
further acts, deeds, conveyances, mortgages, assignments, notices of
assignments, transfers and assurances as Beneficiary will, from time to time,
reasonably require, for the better assuring, conveying, assigning, transferring
and confirming unto Beneficiary the property and rights hereby mortgaged or
intended now or hereafter so to be, or which Trustor may be or may hereafter
become bound to convey or assign to Beneficiary, or for carrying out the
intention or facilitating the performance of the terms of this Deed of Trust or
for filing, registering or recording this Deed of Trust and, on reasonable
demand, will execute and deliver, and hereby authorizes Beneficiary to execute
in the name of Trustor to the extent Beneficiary may lawfully do so, one or more
financing statements, chattel mortgages or comparable security instruments, to
evidence more effectively the lien hereof upon the Trust Property.
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33. Headings, etc. The headings and captions of various paragraphs of
this Deed of Trust are for convenience of reference only and are not to be
construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
34. Recording of Deed of Trust, etc. Trustor, upon the execution and
delivery of this Deed of Trust and thereafter from time to time, will cause this
Deed of Trust and any security instrument creating a lien or evidencing the lien
hereof upon the Trust Property and each instrument of further assurance, to be
filed, registered or recorded in such manner and in such places as may be
required by any present or future law in order to publish notice of and fully to
protect the lien hereof upon, and the interest of Beneficiary in the Trust
Property. Trustor will pay all filing, registration or recording fees, and all
expenses actually incurred incident to the preparation, execution and
acknowledgment of this Deed of Trust, any mortgage supplemental hereto, any
security instrument with respect to the Trust Property and any instrument of
further assurance, and all Federal, state, county and municipal taxes, duties,
imposts, assessments and charges (including without limitation documentary stamp
taxes and intangible personal property taxes) arising out of or in connection
with the execution and delivery of this Deed of Trust or the Obligations secured
hereby, any mortgage supplemental hereto, any security instrument or financing
statement with respect to the Trust Property or any instrument of further
assurance. Trustor will hold harmless and indemnify Beneficiary, its successors
and assigns, against any liability incurred by reason of the imposition of any
tax on the making and recording of this Deed of Trust.
35. Usury Laws. This Deed of Trust, the Loan Agreement and the Notes
are subject to the express condition that at no time will Trustor be obligated
or required to pay interest on the principal balance due under the Notes or any
of the other Loan Documents at a rate that could subject the holder of any Notes
to either civil or criminal liability as a result of being in excess of the
maximum interest rate that Trustor is permitted by Law to contract or agree to
pay. If by the terms of this Deed of Trust, the Notes or any of the other Loan
Documents, Trustor is at any time required or obligated to pay interest on the
principal balance due under this Deed of Trust, the Notes or any of the other
Loan Documents at a rate in excess of such maximum rate, the rate of interest
under this Deed of Trust, the Notes or such of the other Loan Documents, as the
case may be, will be deemed to be immediately reduced to such maximum rate and
the interest payable will be computed at such maximum rate and all prior
interest payments in excess of such maximum rate will be applied and will be
deemed to have been payments in reduction of the principal balance of the Notes.
36. Discretion of Beneficiary. Except as otherwise specifically
provided in this Deed of Trust, wherever pursuant to this Deed of Trust
Beneficiary exercises any right given to it to consent or to withhold its
consent, to approve or disapprove, or any arrangement or term is to be
satisfactory to Beneficiary, the decision of Beneficiary to consent or to
withhold its consent, to approve or disapprove or to decide that arrangements or
terms are satisfactory or not satisfactory will be exercised within the
reasonable judgment of Beneficiary.
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37. Recovery of Sums Required To Be Paid. Beneficiary has the right
from time to time to take action to recover any sum or sums that constitute a
part of the Obligations as the same become due, without regard to whether or not
the balance of the Obligations will be due, and without prejudice to the right
of Beneficiary thereafter to bring an action of foreclosure, or any other
action, for a default or defaults by Trustor existing at the time such earlier
action was commenced.
38. Absolute and Unconditional Obligation. Trustor acknowledges that
its obligation to pay the Obligations in accordance with the provisions of the
Notes, the Loan Agreement and the Loan Documents is and will at all times
continue to be absolute and unconditional in all respects, and will at all times
be valid and enforceable irrespective of any other agreements or circumstances
of any nature whatsoever that might otherwise constitute a defense to the Notes,
the Loan Agreement or any of the Loan Documents or the obligation of Trustor to
pay the Obligations or the obligations of any other person relating to the
Notes, the Loan Agreement or any of the Loan Documents or the obligations of
Trustor under the Notes, the Loan Agreement or any of the Loan Documents, and to
the full extent permitted by Law, Trustor absolutely, unconditionally and
irrevocably waives any and all right to assert any defense, setoff, counterclaim
or crossclaim of any nature whatsoever with respect to the obligation of Trustor
to pay the Obligations in accordance with the provisions of the Notes, the Loan
Agreement and the Loan Documents or the obligations of any other person relating
to the Notes, the Loan Agreement or any of the Loan Documents, or in any action
or proceeding brought by Beneficiary to collect the Obligations, or any portion
thereof, or to enforce, foreclose and realize upon the lien and security
interest created by this Deed of Trust or any other document or instrument
securing repayment of the Obligations, in whole or in part. Trustor's personal
liability with respect to the Obligations, however, is limited as set forth in
the Loan Agreement and the Notes.
39. Indemnification. If Beneficiary is made a party defendant to any
litigation concerning the Notes, the Loan Agreement, this Deed of Trust, any
other Loan Document or the Trust Property or any part thereof or interest
therein, or the occupancy thereof by Trustor, then Trustor will indemnify,
defend and hold Beneficiary harmless from all liability (excepting Beneficiary's
gross negligence or willful misconduct as finally determined by a Government
Instrumentality of competent jurisdiction) by reason of said litigation,
including reasonable documented attorneys' fees and expenses incurred by
Beneficiary in any such litigation, whether or not any such litigation is
prosecuted to judgment. If Beneficiary commences an action against Trustor due
to an Event of Default by Trustor hereunder, Trustor will pay or arrange to pay
Beneficiary's reasonable documented attorneys' fees and expenses, together with
interest thereon at the Default Rate from the date the same are paid to the date
of reimbursement by Trustor and the right to such attorneys' fees and expenses
will be deemed to have accrued on the commencement of such action, and will be
enforceable whether or not such action is prosecuted to judgment. If Trustor
breaches any term of this Deed of Trust, Beneficiary may engage an attorney or
attorneys to protect Beneficiary's rights hereunder, and in the event of such
engagement following any breach by Trustor, Trustor will pay Beneficiary's
reasonable attorneys' fees and expenses so incurred, whether or not an action is
actually commenced against Trustor by reason of breach.
40. Authority. Trustor (and the undersigned representative of Trustor)
has full power, authority and legal right to execute this Deed of Trust and to
mortgage, give, grant, bargain, sell, alien, enfeoff, convey, confirm and assign
the Trust Property pursuant to the terms hereof and to keep and observe all of
the terms of this Deed of Trust on Trustor's part to be kept and observed.
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41. Actions and Proceedings. Beneficiary, upon reasonable prior notice
to Trustor, has the right to appear in and defend any action or proceeding
brought with respect to the Trust Property and to bring any action or
proceeding, in the name and on behalf of Trustor, which Beneficiary reasonably
determines is necessary to protect Beneficiary's interest in the Trust Property.
42. Inapplicable Provisions. If any term, covenant or condition of
this Deed of Trust is held to be invalid, illegal or unenforceable in any
respect, this Deed of Trust will be construed without such provision.
43. Counterparts. This Deed of Trust may be executed in any number of
counterparts and all such counterparts will be deemed to constitute but one and
the same instrument.
44. Certain Definitions. Unless the context clearly indicates a
contrary intent or unless otherwise specifically provided herein, words used in
this Deed of Trust will be used interchangeably in singular or plural form and
the word "Trustor" will include any subsequent owner or owners of the Trust
Property or any part thereof or interest therein; the word "Notes" will mean the
Notes or any other evidence of indebtedness secured by this Deed of Trust; the
word "Beneficiary" will mean all of or any of the entities constituting
Beneficiary, as the context requires; the words "Trust Property" will include
any portion of the Trust Property or interest therein; and the word
"Obligations" will mean all sums and performance secured by this Deed of Trust.
Whenever the context may require, any pronouns used herein will include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns and pronouns will include the plural and vice versa.
45. Waiver of Statutory Rights. Trustor, for itself and all who may
claim through or under it, waives any and all right to have the property and
estates comprising the Trust Property marshaled upon any foreclosure of the lien
of this Deed of Trust and agrees that any court having jurisdiction to foreclose
such lien may order the Trust Property sold as an entirety.
46. Surrender. Upon the occurrence and continuance of any Event of
Default and upon commencement of any foreclosure action by Beneficiary or its
agents or attorneys of the right to exclude Trustor from all or any part of the
Trust Property, Trustor agrees to vacate and surrender possession of the Trust
Property to Beneficiary, or to a receiver, if any.
47. Relationship. The relationship of Beneficiary to Trustor hereunder
is strictly and solely that of the agent for certain lenders and borrower and
nothing contained in the Notes, this Deed of Trust, the Loan Agreement or any
other Loan Document is intended to create, or will in any event or under any
circumstance be construed as creating, a partnership, joint venture,
tenancy-in-common, joint tenancy or other relationship of any nature whatsoever
between Beneficiary and Trustor other than as lender and borrower.
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48. Waiver of Notice. Trustor will not be entitled to any notices of
any nature whatsoever from Beneficiary except with respect to matters for which
this Deed of Trust specifically and expressly provides for the giving of notice
by Beneficiary to Trustor and Trustor hereby expressly waives the right to
receive any notice from Beneficiary with respect to any matter for which this
Deed of Trust does not specifically and expressly provide for the giving of
notice by Beneficiary to Trustor; provided, that this provision does not nullify
any provision contained in any other Loan Document requiring Beneficiary to give
notice to Trustor.
49. Integration. The Loan Documents contain the complete agreement
among Trustor, Beneficiary and the other parties thereto with respect to the
matters contained therein and supersede all prior commitments, agreements and
understandings, whether written or oral, with respect to the matters contained
therein.
50. No Oral Change. This Deed of Trust may only be modified or amended
by an agreement in writing signed by Trustor and Beneficiary, and may only be
released, discharged or satisfied of record by an agreement in writing signed by
Beneficiary. No waiver of any term, covenant or provision of this Deed of Trust
will be effective unless given in writing by Beneficiary and if so given by
Beneficiary will only be effective in the specific instance in which given.
Trustor acknowledges that the Notes, this Deed of Trust, the Loan Agreement and
the other Loan Documents set forth the entire agreement and understanding of
Trustor and Beneficiary with respect to the Obligations secured hereby and that
no oral or other agreements, understanding, representation or warranties exist
with respect to the Obligations secured hereby other than those set forth in the
Notes, this Deed of Trust, the Loan Agreement and the other Loan Documents
51. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
TRUSTOR HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT
BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH
RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS DEED OF TRUST OR ANY
OTHER LOAN DOCUMENT, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN
CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY
AND VOLUNTARILY BY TRUSTOR, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH
INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE
ACCRUE. BENEFICIARY IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY
PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY TRUSTOR..
52. Trustee; Successor Trustee. Trustee shall not be liable for any
error of judgment or act done by Trustee, or be otherwise responsible or
accountable under any circumstances whatsoever, except if the result of
Trustee's gross negligence or willful misconduct. Trustee shall not be
personally liable in case of entry by him or anyone acting by virtue of the
powers herein granted him upon the Trust Property for debts contracted or
liability or damages or damages incurred in the management or operation of the
Trust Property. Trustee shall have the right to rely on any instrument, document
or signature authorizing or supporting any action taken or proposed to be taken
by him hereunder or believed by him to be genuine. Trustee shall be entitled to
17
reimbursement for actual expenses incurred by him in the performance of his
duties hereunder and to reasonable compensation for such of his services
hereunder as shall be rendered. Trustor will, from time to time, reimburse
Trustee for and save and hold him harmless from and against any and all loss,
cost, liability, damage and reasonable expense whatsoever incurred by him in the
performance of his duties. All monies received by Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated in any manner from any other monies
(except to the extent required by law) and Trustee shall be under no liability
for interest on any monies received by him hereunder. Trustee may resign by
giving of notice of such resignation in writing to Beneficiary. If Trustee shall
die, resign or become disqualified from acting in the execution of this trust or
shall fail or refuse to exercise the same when requested by Beneficiary or if
for any or no reason and without cause Beneficiary shall prefer to appoint a
substitute trustee to act instead of the original Trustee named herein, or any
prior successor or substitute trustee, Beneficiary shall, without any formality
or notice to Trustor or any other person, have full power to appoint a
substitute trustee and, if Beneficiary so elects, several substitute trustees in
succession who shall succeed to all the estate, rights, powers and duties of the
aforenamed Trustee. Each appointment and substitution shall be evidenced by an
instrument in writing which shall recite the parties to, and the book and page
of record of, this Deed of Trust, and the description of the real property
herein described, which instrument, executed and acknowledged by Beneficiary,
shall (i) be conclusive proof of the proper substitution and appointment of such
successor Trustee or Trustees, (ii) duly assign and transfer all the estates,
properties, rights, powers and trusts of Trustee so ceasing to act and (iii) be
notice of such proper substitution and appointment to all parties in interest.
In addition, such Trustee ceasing to act shall duly assign, transfer, and
deliver any of the property and monies held by Trustee to the successor Trustee
so appointed in its or his place. The Trustee may act in the execution of this
trust and may authorize one or more parties to act on his behalf to perform the
ministerial functions required of him hereunder, including without limitation,
the transmittal and posting of any notices and it shall not be necessary for any
Trustee to be present in person at any foreclosure sale.
53. Future Advances; Protective Advances. This Deed of Trust is given
to secure not only existing indebtedness, but also all future advances (whether
such advances are obligatory or are to be made at the option of Beneficiary, or
otherwise) as are made by Beneficiary within twenty (20) years of the date of
this Deed of Trust, to the same extent as if such future advances were made on
the date of the execution of this Deed of Trust, even though there may be no
indebtedness outstanding at the time any such advance is made. The total amount
of indebtedness that may be so secured may decrease or increase from time to
time, but all indebtedness secured hereby shall in no event, exceed the amount
equal to two (2) times the principal sum of the Loan as specified in the
preamble paragraph of this Deed of Trust. This Deed of Trust secures all
advances, disbursements and expenditures made by Beneficiary before and during a
foreclosure, and before and after judgment of foreclosure, and at any time prior
to sale, and, where applicable, after sale, and during the pendency of any
related proceedings, for the purposes authorized by this Deed of Trust or by
Applicable Law.
54. Variable Interest Rate. The Loan secured by this Deed of Trust is
a variable interest rate loan, as more particularly set forth in the Loan
Agreement.
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PART II
STATE-SPECIFIC PROVISIONS
55. Conflicts With Part I. In the event of any conflict between the
provisions of this Part II and any provision of Part I, then the provisions of
this Part II shall control.
56. Additional Security Agreement Provisions.
(a) With respect to fixtures, Beneficiary or Trustee may elect to
treat same as either real property or personal property and proceed to exercise
such rights and remedies applicable to the categorization so chosen. Beneficiary
may proceed against the items of real property and any items of Trust Property
separately or together in any order whatsoever, without in any way affecting or
waiving Beneficiary's rights and remedies under the Uniform Commercial Code,
this Deed of Trust or the Notes. Trustor acknowledges and agrees that
Beneficiary's rights and remedies under this Deed of Trust and the Notes shall
be cumulative and shall be in addition to every other right and remedy now or
hereafter existing at law, in equity, by statute or by agreement of the parties.
(b) Trustor agrees that this Deed of Trust constitutes a
financing statement filed as a fixture filing in the Official Records of the
County in which the Trust Property is located with respect to any and all
fixtures included within the term "Site" or "Improvements" as used in the Loan
Documents and with respect to any goods and other personal property that may now
be or hereafter become fixtures. The names and mailing addresses of the debtor
(Trustor) and the secured party (Beneficiary) are set forth on the first page of
this Deed of Trust. The organization identification number for Trustor is
DE3957429. Trustor is the record owner of the Trust Property. The personal
property described above is the collateral covered by this financing statement.
Any reproduction of this Deed of Trust or any other security agreement or
financing statement shall be sufficient as a financing statement. Trustor hereby
(i) authorizes Beneficiary at any time and from time to time to file financing
statements, continuation statements and amendments thereto that describe the
collateral as all assets of Trustor or words of similar effect (regardless of
whether any particular asset of Trustor falls within the scope of the Uniform
Commercial Code or the granting clauses of the Loan Documents) and that contain
any other information required by Part 5 of Article 9 of the Uniform Commercial
Code for the sufficiency or filing office acceptance of any financing statement,
continuation statement or amendment, including whether Trustor is an
organization, the type of organization and any organization identification
number issued to Trustor, and (ii) ratifies such authorization to the extent
that Beneficiary has filed any such financing or continuation statements, or
amendments thereto prior to the date hereof.
57. Additional Remedies Provision. Upon the occurrence and continuance
of an Event of Default, Trustor hereby authorizes and empowers Beneficiary in
its sole discretion, without any notice or demand and without affecting the lien
and charge of this Deed of Trust, to exercise any right or remedy which
Beneficiary may have available to it, including, but not limited to, judicial
foreclosure, exercise of rights of power of sale without judicial action as to
any collateral security for the obligations, whether real, personal or
intangible property. Without limiting the foregoing, Trustor specifically agrees
that any action maintained by Beneficiary for the appointment of any receiver,
trustee or custodian to collect rents, issues or profits or to obtain possession
of the Trust Property shall not constitute an "action" within the meaning of
ss.726 of the California Code of Civil Procedure.
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In connection with any sale or sales hereunder, Beneficiary may elect to
treat any of the Trust Property which consists of a right in action or which is
property that can be severed from the real property covered hereby or any
improvements thereon without causing structural damage thereto as if the same
were personal property, and dispose of the same in accordance with applicable
law, separate and apart from the sale of real property. Any sale of any personal
property hereunder shall be conducted in any manner permitted by Section 9607 or
any other applicable section of the Uniform Commercial Code. Where the Trust
Property consists of real and personal property or fixtures, whether or not such
personal property is located on or within the real property, Beneficiary may
elect in its discretion to exercise its rights and remedies against any or all
of the real property, personal property, and fixtures in such order and manner
as is now or hereafter permitted by applicable law.
Without limiting the generality of the foregoing, Beneficiary may, in its
sole and absolute discretion and without regard to the adequacy of its security,
elect to proceed against any or all of the real property, personal property and
fixtures in any manner permitted under Section 9604(a) of the Uniform Commercial
Code; and if Beneficiary elects to proceed in the manner permitted under Section
9604(a)(1)(B) of the Uniform Commercial Code, the power of sale herein granted
shall be exercisable with respect to all or any of the real property, personal
property and fixtures covered hereby, as designated by Beneficiary, and the
Trustee is hereby authorized and empowered to conduct any such sale of any real
property, personal property and fixtures in accordance with the procedures
applicable to real property. Where the Trust Property consists of real property
and personal property, any reinstatement of the obligation secured hereby,
following default and an election by the Beneficiary to accelerate the maturity
of said obligation, which is made by Trustor or any other person or entity
permitted to exercise the right of reinstatement under Section 2924c of the
California Civil Code or any successor statute, shall, in accordance with the
terms of Section 9604(a) of the Uniform Commercial Code, not prohibit the
Beneficiary from conducting a sale or other disposition of any personal property
or fixtures or from otherwise proceeding against or continuing to proceed
against any personal property or fixtures in any manner permitted by the
California Commercial Code; nor shall any such reinstatement invalidate, rescind
or otherwise affect any sale, disposition or other proceeding held, conducted or
instituted with respect to any personal property or fixtures prior to such
reinstatement or pending at the time of such reinstatement. Any sums paid to
Beneficiary in effecting any reinstatement pursuant to Section 2924c of the
California Civil Code shall be applied to the secured obligation and to the
Beneficiary's and Trustee's reasonable costs and expenses in the manner required
by Section 2924c. Any sale of personal property hereunder shall be conducted in
any manner permitted by Section 9601 of the Uniform Commercial Code or any other
applicable provision of the Uniform Commercial Code.
Should Beneficiary elect to sell any portion of the Trust Property which is
real property or which is personal property or fixtures that Beneficiary has
elected to sell together with real property in accordance with the laws
governing a sale of real property, Beneficiary or Trustee shall give such notice
of default and election to sell as may then be required by law. Thereafter, upon
the expiration of such time and the giving of such notice of sale as may then be
required by law, and without the necessity of any demand on Trustor, Trustee, at
the time and place specified in the notice of sale, shall sell said real
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property or part thereof at public auction to the highest bidder for cash in
lawful money of the United States or in such other manner as Beneficiary shall
direct which is not prohibited by applicable law. Trustee may, and upon request
of Beneficiary shall, from time to time, postpone any sale hereunder by public
announcement thereof at the time and place noticed therefor. Beneficiary may
sell the Trust Property for any amount it deems acceptable, whether or not such
amount is equal to the Obligations, or otherwise. Trustor authorizes and
empowers Trustee, upon any sale hereunder, to execute and deliver to the
purchaser or purchasers a deed or deeds conveying the property so sold, without
any covenant or warranty whatsoever, express or implied, whereupon such
purchaser or purchasers shall be let into immediate possession, and the recitals
in any such deed or deeds of facts, such as default, the giving of notice of
default and notice of sale, and other facts affecting the regularity or validity
of such sale or disposition, shall be conclusive proof of the truth of such
facts and any such deed or deeds shall be conclusive against all persons as to
such facts recited therein. Upon any foreclosure sale hereunder, Trustor shall
immediately surrender and deliver possession to the purchaser. If Trustor fails
to do so, Trustor shall be a tenant at will of the purchaser and such purchaser
shall have the right to bring an action of forcible entry and detainer.
Without limiting any other rights provided to Beneficiary herein or in any
of the Loan Documents, Beneficiary shall have the benefits of California Code of
Civil Procedure ss. 736, as the same may be amended from time to time. Upon any
Event of Default, in addition to any other remedies provided therein and
applicable law, Beneficiary shall have the right to waive its lien against the
Trust Property or any portion thereof, whether fixtures or personal property, to
the extent such property is found to be environmentally impaired in accordance
with California Code of Civil Procedure Section 726.5 and to exercise any and
all rights and remedies of an unsecured creditor against the Trustor and all of
the Trustor's assets and property for the recovery of any deficiency, including,
but not limited to, seeking an attachment order pursuant to California Code of
Civil Procedure Section 483.010.
58. Additional Waivers. Upon the occurrence and continuance of an
Event of Default, Trustor hereby expressly waives diligence, demand,
presentment, protest and notice of every kind and nature whatsoever (unless as
otherwise required under this Deed of Trust or the Loan Agreement) and waives
any right to require Beneficiary to enforce any remedy against any guarantor,
endorser or other person whatsoever prior to the exercise of its rights and
remedies hereunder or otherwise.
59. Loan Document Approval. Trustor has read and hereby approves the
Notes, the Loan Agreement, this Deed of Trust, the other Loan Documents and all
other documents relating thereto. Trustor acknowledges that it has been
represented by counsel of its choice to review the Notes, the Loan Agreement,
this Deed of Trust, the other Loan Documents and all other documents relating
thereto and said counsel has explained and Trustor understands the provisions
thereof.
60. Additional Provisions. No merger of any interests shall occur as a
result of Beneficiary's acquiring any other estate in or any other lien on the
Trust Property unless Beneficiary consents to a merger in writing, including
without limitation any merger which may arise, upon foreclosure of the lien of
this Deed of Trust or acceptance of a deed in lieu thereof by Beneficiary. Upon
the indefeasible payment and performance in full of all obligations secured by
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this Deed of Trust, Beneficiary shall request Trustee to reconvey the Trust
Property and shall surrender this Deed of Trust and all agreements or notes
evidencing indebtedness secured by this Deed of Trust to Trustee. Upon payment
of its fees and any other sums owing to it under this Deed of Trust, Trustee
shall reconvey the Trust Property without warranty to the person or persons
legally entitled thereto. Such person or persons shall pay all costs of
recordation, if any. The recitals in such conveyance 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." Five years after issuance of such full reconveyance, Trustee may
destroy said Notes and this Deed of Trust unless otherwise directed by
Beneficiary.
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IN WITNESS WHEREOF, Trustor has executed this instrument as of the day
and year first above written.
TRUSTOR:
PACIFIC ETHANOL MADERA LLC,
a Delaware limited liability company
By: /s/ Ryan Turner
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Name:
Title: