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EXHIBIT 10.19
RECORDATION REQUESTED BY:
BUTTE COMMUNITY BANK
NOTE DEPARTMENT
2227 MYERS ST.
OROVILLE, CA 95966
WHEN RECORDED MAIL TO:
BUTTE COMMUNITY BANK
NOTE DEPARTMENT
2227 MYERS ST.
OROVILLE, CA 95966
SEND TAX NOTICES TO:
BUTTE COMMUNITY BANK
NOTE DEPARTMENT
2227 MYERS ST.
OROVILLE, CA 95966
SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY
- --------------------------------------------------------------------------------
CONSTRUCTION TRUST DEED
THIS DEED OF TRUST IS DATED APRIL 13, 2000, AMONG FAFCO, INC., WITH TITLE
VESTED AS FOLLOWS:
FAFCO, INCORPORATED, A CALIFORNIA CORPORATION, WHOSE ADDRESS IS 2690 MIDDLEFIELD
ROAD, REDWOOD CITY, CA 94063 (REFERRED TO BELOW AS "TRUSTOR"); BUTTE COMMUNITY
BANK, WHOSE ADDRESS IS 2041 FOREST AVE, CHICO, CA 95928 (REFERRED TO BELOW
SOMETIMES AS "LENDER" AND SOMETIMES AS "BENEFICIARY"); AND FIDELITH NATIONL
TITLE COMPANY, WHOSE ADDRESS IS 535 WALL STREET, CHICO, CA 95928 (REFERRED TO
BELOW AS "TRUSTEE").
CONVEYANCE AND GRANT. FOR VALUABLE CONSIDERATION, TRUSTOR IRREVOCABLY GRANTS,
TRANSFERS AND ASSIGNS TO TRUSTEE IN TRUST, WITH POWER OF SALE, FOR THE BENEFIT
OF LENDER AS BENEFICIARY, all of Trustor's right, title, and interest in and to
the following described real property, together with all existing or
subsequently erected or affixed buildings, improvements and fixtures; all
easements, rights of way, and appurtenances; all water, water rights and ditch
rights (including stock in utilities with ditch or irrigation rights); and all
other rights, royalties, and profits relating to the real property, including
without limitation all minerals, oil, gas, geothermal and similar matters,
LOCATED IN BUTTE COUNTY, STATE OF CALIFORNIA (THE "REAL PROPERTY"):
SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF
THE REAL PROPERTY OR ITS ADDRESS IS COMMONLY KNOWN AS 435 OTTERSON DRIVE,
CHICO, CA 95928. The Assessor's Parcel Number for the Real Property is
039-060-108.
Trustor presently assigns to Lender (also known as Beneficiary in this Deed of
Trust) all of Trustor's right, title, and interest in and to all present and
future leases of the Property and all Rents from the Property. This is an
absolute assignment of Rents made in connection with an obligation secured by
real property pursuant to California Civil Code Section 2938. In addition,
Trustor grants Lender a Uniform Commercial Code security interest in the Rents
and the Personal Property defined below.
DEFINITIONS. The following words shall have the following meanings when used in
this Deed of Trust. Terms not otherwise defined in this Deed of Trust shall
have the meanings attributed to such terms in the Uniform Commercial Code. All
references to dollar amounts shall mean amounts in lawful money of the United
States of America.
BENEFICIARY. The word "Beneficiary" means BUTTE COMMUNITY BANK, its
successors and assigns. BUTTE COMMUNITY BANK also is referred to as
"Lender" in this Deed of Trust.
DEED OF TRUST. The words "Deed of Trust" mean this Deed of Trust among
Trustor, Lender, and Trustee, and includes without limitation all
assignment and security interest provisions relating to the Personal
Property and Rents.
GUARANTOR. The word "Guarantor" means and includes without limitation any
and all guarantors, sureties, and accommodation parties in connection with
the Indebtedness.
IMPROVEMENTS. The word "Improvements" means and includes without
limitation all existing and future improvements, buildings, structures,
mobile homes affixed on the Real Property, facilities, additions,
replacements and other construction on the Real Property.
INDEBTEDNESS. The word "Indebtedness" means all principal and interest
payable under the Note and any amounts expended or advanced by Lender to
discharge obligations of Trustor or expenses incurred by Trustee or
Lender to enforce obligations of Trustor under this Deed of Trust,
together with interest on such amounts as provided in this Deed of Trust.
LENDER. The word "Lender" means BUTTE COMMUNITY BANK, its successors and
assigns.
NOTE. The word "Note" means the note dated April 13, 2000, IN THE
PRINCIPAL AMOUNT OF $3,400,000.00 from Trustor to Lender, together with
all renewals, extensions, modifications, refinancings, and substitutions
for the Note.
PERSONAL PROPERTY. The words "Personal Property" mean all equipment,
fixtures, and other articles of personal property now or hereafter owned
by Trustor, and now or hereafter attached or affixed to the Real
Property; together with all accessions, parts, and additions to, all
replacements of, and all substitutions for, any of such property; and
together with all proceeds (including without limitation all insurance
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proceeds and refunds of premiums) from any sale or other disposition of the
Property. The words "Personal Property" also include all tangible and
intangible items obtained or owned by, or in the possession of Trustor that
are directly or indirectly related to the acquisition, development, design,
construction, permitting, marketing, or habitation of the Real Property or
the Improvements to be constructed on the Real Property, whether heretofore
or hereafter issued, prepared, or executed, including without limitation
all permits, licenses, authorizations and approvals, trademarks and
tradenames, and any and all land use entitlements, development rights,
sewer capacity, approvals, density allocations and other rights or
approvals relating to or authorizing the development or occupancy of the
Property, plus all utility or other deposits, reimbursement rights,
studies, tests, contracts, plans and specifications, relating to the
Property and Improvements.
PROPERTY. The word "Property" means collectively the Real Property and the
Personal Property.
REAL PROPERTY. The words "Real Property" mean the property, interests and
rights described above in the "Conveyance and Grant" section.
RELATED DOCUMENTS. The words "Related Documents" mean and include without
limitation all promissory notes, credit agreements, loan agreements,
environmental agreements, guaranties, security agreements, mortgages, deeds
of trust, and all other instruments, agreements and documents, whether now
or hereafter existing, executed in connection with the Indebtedness.
RENTS. The word "Rents" means all present and future leases, rents,
revenues, income, issues, royalties, profits, and other benefits derived
from the Property together with the cash proceeds of the Rents.
TRUSTEE. The word "Trustee" means FIDELITH NATIONL TITLE COMPANY and any
substitute or successor trustees.
TRUSTOR. The word "Trustor" means any and all persons and entities
executing this Deed of Trust, including without limitation all Trustors
named above.
THIS DEED OF TRUST, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST
IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE (1) PAYMENT OF THE
INDEBTEDNESS AND (2) PERFORMANCE OF ANY AND ALL OBLIGATIONS OF TRUSTOR UNDER
THE NOTE, THE RELATED DOCUMENTS, AND THIS DEED OF TRUST. THIS DEED OF TRUST,
INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND
PERSONAL PROPERTY, IS ALSO GIVEN TO SECURE ANY AND ALL OBLIGATIONS OF TRUSTOR
UNDER THAT CERTAIN CONSTRUCTION LOAN AGREEMENT BETWEEN TRUSTOR AND LENDER OF
EVEN DATE HEREWITH. ANY EVENT OF DEFAULT UNDER THE CONSTRUCTION LOAN AGREEMENT,
OR ANY OF THE RELATED DOCUMENTS REFERRED TO THEREIN, SHALL ALSO BE AN EVENT OF
DEFAULT UNDER THIS DEED OF TRUST. THE NOTE AND THIS DEED OF TRUST ARE GIVEN AND
ACCEPTED ON THE FOLLOWING TERMS:
PAYMENT AND PERFORMANCE. Except as otherwise provided in this Deed of Trust,
Trustor shall pay to Lender all amounts secured by this Deed of Trust as they
become due, and shall strictly and in a timely manner perform all of Trustor's
obligations under the Note, this Deed of Trust, and the Related Documents.
POSSESSION AND MAINTENANCE OF THE PROPERTY. Trustor agrees that Trustor's
possession and use of the Property shall be governed by the following
provisions:
POSSESSION AND USE. Until the occurrence of an Event of Default, Trustor
may (a) remain in possession and control of the Property, (b) use, operate
or manage the Property, and (c) collect any Rents from the Property.
DUTY TO MAINTAIN. Trustor shall maintain the Property in tenantable
condition and promptly perform all repairs, replacements, and maintenance
necessary to preserve its value.
HAZARDOUS SUBSTANCES. The terms "hazardous waste," "hazardous substance,"
"disposal," "release," and "threatened release," as used in this Deed of
Trust, shall have the same meanings as set forth in the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund
Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"),
the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et
seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901,
et seq., Chapters 6.5 through 7.7 of Division 20 of the California Health
and Safety Code, Section 25100, et seq., or other applicable state or
Federal laws, rules, or regulations adopted pursuant to any of the
foregoing. The terms "hazardous waste" and "hazardous substance" shall also
include, without limitation, petroleum and petroleum by-products or any
fraction thereof and asbestos. Trustor represents and warrants to Lender
that: (a) During the period of Trustor's ownership of the Property, there
has been no use, generation, manufacture, storage, treatment, disposal,
release or threatened release of any hazardous waste or substance by
any person on, under, about or from the Property; (b) Trustor has no
knowledge of, or reason to believe that there has been, except as
previously disclosed to and acknowledged by Lender in writing, (i) any use,
generation, manufacture, storage, treatment, disposal, release, or
threatened release of any hazardous waste or substance on, under, about or
from the Property by any prior owners or occupants of the Property or (ii)
any actual or threatened litigation or claims of any kind by any person
relating to such matters; and (c) Except as previously disclosed to and
acknowledged by Lender in writing, (i) neither Trustor nor any tenant,
contractor, agent or other authorized user of the Property shall use,
generate, manufacture, store, treat, dispose of, or release any hazardous
waste or substance on, under, about or from the Property and (ii) any such
activity shall be conducted in compliance with all applicable federal,
state, and local laws, regulations and ordinances, including without
limitation those laws, regulations, and ordinances described above. Trustor
authorizes Lender and its agents to enter upon the Property to make such
inspections and tests, at Trustor's expense, as Lender may deem appropriate
to determine compliance of the Property with this section of the Deed of
Trust. Any inspections or tests made by Lender shall be for Lender's
purposes only and shall not be construed to create any responsibility or
liability on the part of Lender to Trustor or to any other person. The
representations and warranties contained herein are based on Trustor's due
diligence in investigating the Property for hazardous waste and hazardous
substances. Trustor hereby (a) releases and waives any future claims
against Lender for indemnity or contribution in the event Trustor becomes
liable for cleanup or other costs under any such laws, and (b) agrees to
indemnify and hold harmless Lender against any and all claims, losses,
liabilities, damages, penalties, and expenses which Lender may directly or
indirectly sustain or suffer resulting from a breach of this section of the
Deed of Trust or as a consequence of any use, generation, manufacture,
storage, disposal, release or threatened release of a hazardous waste or
substance on the properties. The provisions of this section of the Deed of
Trust, including the obligation to indemnify, shall survive the payment of
the Indebtedness and the satisfaction and reconveyance of the lien of this
Deed of Trust and shall not be affected by Lender's acquisition of any
interest in the Property, whether by foreclosure or otherwise.
NUISANCE, WASTE. Trustor shall not cause, conduct or permit any nuisance
nor commit, permit, or suffer any stripping of or waste on or to the
Property or any portion of the Property. Without limiting the generality of
the foregoing, Trustor will not remove, or grant to any other party the
right to remove, any timber, minerals (including oil and gas), soil, gravel
or rock products without the prior written consent of Lender.
REMOVAL OF IMPROVEMENTS. Trustor shall not demolish or remove any
Improvements from the Real Property without the prior written consent of
Lender. As a condition to the removal of any Improvements, Lender may
require Trustor to make arrangements satisfactory to Lender to
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replace such improvements with improvements of at least equal value.
LENDER'S RIGHT TO ENTER. Lender and its agents and representatives may
enter upon the Real Property at all reasonable times to attend to Lender's
interests and to inspect the Property for purposes of Trustor's compliance
with the terms and conditions of this Deed of Trust.
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS. Trustor shall promptly comply
with all laws, ordinances, and regulations, now or hereafter in effect, of
all governmental authorities applicable to the use or occupancy of the
Property, including without limitation, the Americans With Disabilities
Act. Trustor may contest in good faith any such law, ordinance, or
regulation and withhold compliance during any proceeding, including
appropriate appeals, so long as Trustor has notified Lender in writing
prior to doing so and so long as, in Lender's sole opinion, Lender's
interests in the Property are not jeopardized. Lender may require Trustor
to post adequate security or a surety bond, reasonably satisfactory to
Lender, to protect Lender's interest.
DUTY TO PROTECT. Trustor agrees neither to abandon nor leave unattended
the Property. Trustor shall do all other acts, in addition to those acts
set forth above in this section, which from the character and use of the
Property are reasonably necessary to protect and preserve the Property.
DUE ON SALE - CONSENT BY LENDER. Lender may, at its option, declare immediately
due and payable all sums secured by this Deed of Trust upon the sale or
transfer, without the Lender's prior written consent, of all or any part of the
Real Property, or any interest in the Real Property. A "sale or transfer" means
the conveyance of Real Property or any right, title or interest therein;
whether legal, beneficial or equitable; whether voluntary or involuntary;
whether by outright sale, deed, installment sale contract, land contract,
contract for deed, leasehold interest with a term greater than three (3) years,
lease-option contract, or by sale, assignment, or transfer of any beneficial
interest in or to any land trust holding title to the Real Property, or by any
other method of conveyance of Real Property Interest. If any Trustor is a
corporation, partnership or limited liability company, transfer also includes
any change in ownership of more than twenty-five percent (25%) of the voting
stock, partnership interests or limited liability company interests, as the
case may be, of Trustor. However, this option shall not be exercised by Lender
if such exercise is prohibited by applicable law.
TAXES AND LIENS. The following provisions relating to the taxes and liens on
the Property are a part of this Deed of Trust.
PAYMENT. Trustor shall pay when due (and in all events at least ten (10)
days prior to delinquency) all taxes, special taxes, assessments, charges
(including water and sewer), fines and impositions levied against or on
account of the Property, and shall pay when due all claims for work done
on or for services rendered or material furnished to the Property. Trustor
shall maintain the Property free of all liens having priority over or
equal to the interest of Lender under this Deed of Trust, except for the
lien of taxes and assessments not due and except as otherwise provided in
this Deed of Trust.
RIGHT TO CONTEST. Trustor may withhold payment of any tax, assessment, or
claim in connection with a good faith dispute over the obligation to pay,
so long as Lender's interest in the Property is not jeopardized. If a lien
arises or is filed as a result of nonpayment, Trustor shall within fifteen
(15) days after the lien arises or, if a lien is filed, within fifteen
(15) days after Trustor has notice of the filing, secure the discharge of
the lien, or if requested by Lender, deposit with Lender cash or a
sufficient corporate surety bond or other security satisfactory to Lender
in an amount sufficient to discharge the lien plus any costs and
attorneys' fees or other charges that could accrue as a result of a
foreclosure or sale under the lien. In any contest, Trustor shall defend
itself and Lender and shall satisfy any adverse judgment before
enforcement against the Property. Trustor shall name Lender as an
additional obligee under any surety bond furnished in the contest
proceedings.
EVIDENCE OF PAYMENT. Trustor shall upon demand furnish to Lender
satisfactory evidence of payment of the taxes or assessments and shall
authorize the appropriate governmental official to deliver to Lender at
any time a written statement of the taxes and assessments against the
Property.
NOTICE OF CONSTRUCTION. Trustor shall notify Lender at least fifteen (15)
days before any work is commenced, any services are furnished, or any
materials are supplied to the Property, if any mechanic's lien,
materialmen's lien, or other lien could be asserted on account of the
work, services, or materials. Trustor will upon request of Lender furnish
to Lender advance assurances satisfactory to Lender that Trustor can and
will pay the cost of such improvements.
PROPERTY DAMAGE INSURANCE. The following provisions relating to insuring the
Property are a part of this Deed of Trust.
MAINTENANCE OF INSURANCE. Trustor shall procure and maintain policies of
fire insurance with standard extended coverage endorsements on a
replacement basis for the full insurable value covering all improvements
on the Real Property in an amount sufficient to avoid application of any
coinsurance clause, and with a standard mortgagee clause in favor of
Lender. Trustor shall also procure and maintain comprehensive general
liability insurance in such coverage amounts as Lender may request with
trustee and Lender being named as additional Insureds in such liability
insurance policies. Additionally, Trustor shall maintain such other
insurance, including but not limited to hazard, business interruption, and
boiler insurance, as Lender may reasonably require. Notwithstanding the
foregoing, in no event shall Trustor be required to provide hazard
insurance in excess of the replacement value of the Improvements on the
Real Property. Policies shall be written in form, amounts, coverages and
basis reasonably acceptable to Lender and issued by a company or companies
reasonably acceptable to Lender. Trustor, upon request of Lender, will
deliver to Lender from time to time the policies or certificates of
insurance in form satisfactory to Lender, including stipulations that
coverages will not be cancelled or diminished without at least ten (10)
days' prior written notice to Lender. Each insurance policy also shall
include an endorsement providing that coverage in favor of Lender will not
be impaired in any way by any act, omission or default of Trustor or any
other person. Should the Real Property at any time become located in an
area designated by the Director of the Federal Emergency Management Agency
as a special flood hazard area, Trustor agrees to obtain and maintain
Federal Flood Insurance for the full unpaid principal balance of the loan
and any prior liens on the property securing the loan, up to the maximum
policy limits set under the National Flood Insurance Program, or as
otherwise required by Lender, and to maintain such insurance for the term
of the loan.
APPLICATION OF PROCEEDS. Trustor shall promptly notify Lender of any loss
or damage to the Property. Lender may make proof of loss if Trustor fails
to do so within fifteen (15) days of the casualty. If in Lender's sole
judgment Lender's security interest in the Property has been impaired,
Lender may, at its election, receive and retain the proceeds of any
insurance and apply the proceeds to the reduction of the Indebtedness,
payment of any lien affecting the Property, or the restoration and repair
of the Property. If the proceeds are to be applied to restoration and
repair, Trustor shall repair or replace the damaged or destroyed
Improvements in a manner satisfactory to Lender. Lender shall, upon
satisfactory proof of such expenditure, pay or reimburse Trustor from the
proceeds for the reasonable cost of repair or restoration if Trustor is
not in default under this Deed of Trust. Any proceeds which have not been
disbursed within 180 days after their receipt and which Lender has not
committed to the repair or restoration of the Property shall be used first
to pay any amount owing to Lender under this Deed of Trust, then to pay
accrued interest, and the remainder, if any, shall be applied to the
principal balance of the Indebtedness. If Lender holds any proceeds after
payment in full of the Indebtedness, such proceeds shall be paid to
Trustor as Trustor's interests may appear.
UNEXPIRED INSURANCE AT SALE. Any unexpired insurance shall inure to the
benefit of, and pass to, the purchaser of the Property covered by
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this Deed of Trust at any trustee's sale or other sale held under the
provisions of this Deed of Trust, or at any foreclosure sale of such
Property.
TRUSTOR'S REPORT ON INSURANCE. Upon request of Lender, however not more
than once a year, Trustor shall furnish to Lender a report on each
existing policy of insurance showing: (a) the name of the insurer; (b) the
risks insured; (c) the amount of the policy; (d) the property insured, the
then current replacement value of such property, and the manner of
determining that value; and (e) the expiration date of the policy. Trustor
shall, upon request of Lender, have an independent appraiser satisfactory
to Lender determine the cash value replacement cost of the Property.
EXPENDITURES BY LENDER. If Trustor fails to comply with any provision of this
Deed of Trust, or if any action or proceeding is commended that would
materially affect Lender's interests in the Property, Lender on Trustor's
behalf may, but shall not be required to, take any action that Lender deems
appropriate. Any amount that Lender expends in so doing will bear interest at
the rate provided for in the Note from the date incurred or paid by Lender to
the date of repayment by Trustor. All such expenses, at Lender's option, will
(a) be payable on demand, (b) be added to the balance of the Note and be
apportioned among and be payable with any installment payments to become due
during either (i) the term of any applicable insurance policy or (ii) the
remaining term of the Note, or (c) be treated as a balloon payment which will
be due and payable at the Note's maturity. This Deed of Trust also will secure
payment of these amounts. The rights provided for in this paragraph shall be in
addition to any other rights or any remedies to which Lender may be entitled on
account of the default. Any such action by Lender shall not be construed as
curing the default so as to bar Lender from any remedy that it otherwise would
have had.
WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of
the Property are a part of this Deed of Trust.
TITLE. Trustor warrants that: (a) Trustor holds good and marketable title
of record to the Property in fee simple, free and clear of all liens and
encumbrances other than those set forth in the Real Property description
or in any title insurance policy, title report, or final title opinion
issued in favor of, and accepted by, Lender in connection with this Deed
of Trust, and (b) Trustor has the full right, power, and authority to
execute and deliver this Deed of Trust to Lender.
DEFENSE OF TITLE. Subject to the exception in the paragraph above,
Trustor warrants and will forever defend the title to the Property against
the lawful claims of all persons. In the event any action or proceeding is
commenced that questions Trustor's title or the interest of Trustee or
Lender under this Deed of Trust, Trustor shall defend the action at
Trustor's expense. Trustor may be the nominal party in such proceeding,
but Lender shall be entitled to participate in the proceeding and to be
represented in the proceeding by counsel of Lender's own choice, and
Trustor will deliver, or cause to be delivered, to Lender such instruments
as Lender may request from time to time to permit such participation.
COMPLIANCE WITH LAWS. Trustor warrants that the Property and Trustor's use
of the Property complies with all existing applicable laws, ordinances,
and regulations of governmental authorities.
CONDEMNATION. The following provisions relating to eminent domain and inverse
condemnation proceedings are a part of this Deed of Trust.
APPLICATION OF NET PROCEEDS. If any award is made or settlement entered
into in any condemnation proceedings affecting all or any part of the
Property or by any proceeding or purchase in lieu of condemnation, Lender
may at its election, and to the extent permitted by law, require that all
or any portion of the award or settlement be applied to the indebtedness
and to the repayment of all reasonable costs, expenses, and attorneys'
fees incurred by Trustee or Lender in connection with the condemnation
proceedings.
PROCEEDINGS. If any eminent domain or inverse condemnation proceeding is
commenced affecting the Property, Trustor shall promptly notify Lender in
writing, and Trustor shall promptly take such steps as may be necessary to
pursue or defend the action and obtain the award. Trustor may be the
nominal party in any such proceeding, but Lender shall be entitled, at its
election, to participate in the proceeding and to be represented in the
proceeding by counsel of its own choice, and Trustor will deliver or cause
to be delivered to Lender such instruments as may be requested by it from
time to time to permit such participation.
IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The
following provisions relating to governmental taxes, fees and charges are a
part of this Deed of Trust:
CURRENT TAXES, FEES AND CHARGES. Upon request by Lender, Trustor shall
execute such documents in addition to this Deed of Trust and take
whatever other action is requested by Lender to perfect and continue
Lender's lien on the Real Property. Trustor shall reimburse Lender for all
taxes, as described below, together with all expenses incurred in
recording, perfecting or continuing this Deed of Trust, including without
limitation all taxes, fees, documentary stamps, and other charges for
recording or registering this Deed of Trust.
TAXES. The following shall constitute taxes to which this section
applies: (a) a specific tax upon this type of Deed of Trust upon all or
any part of the indebtedness secured by this Deed of Trust; (b) a specific
tax on Trustor which Trustor is authorized or required to deduct from
payments on the indebtedness secured by this type of Deed of Trust; (c) a
tax on this type of Deed of Trust chargeable against the Lender or the
holder of the Note; and (d) a specific tax on all or any portion of the
indebtedness or on payments of principal and interest made by Trustor.
SUBSEQUENT TAXES. If any tax to which this section applies is enacted
subsequent to the date of this Deed of Trust, this event shall have the
same effect as an Event of Default (as defined below), and Lender may
exercise any or all of its available remedies for an Event of Default as
provided below unless Trustor either (a) pays the tax before it becomes
delinquent, or (b) contests the tax as provided above in the Taxes and
Liens section and deposits with Lender cash or a sufficient corporate
surety bond or other security satisfactory to Lender.
SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to
this Deed of Trust as a security agreement are a part of this Deed of Trust.
SECURITY AGREEMENT. This instrument shall constitute a security agreement
to the extent any of the Property constitutes fixtures or other personal
property, and Lender shall have all of the rights of a secured party under
the Uniform Commercial Code as amended from time to time.
SECURITY INTEREST. Upon request by Lender, Trustor shall execute
financing statements and take whatever other action is requested by Lender
to perfect and continue Lender's security interest in the Rents and
Personal Property. Trustor shall reimburse Lender for all expenses
incurred in perfecting or continuing this security interest. Upon default,
Trustor shall assemble the Personal Property in a manner and at a place
reasonably convenient to Trustor and Lender and make it available to
Lender within three (3) days after receipt of written demand from Lender.
ADDRESSES. The mailing addresses of Trustor (debtor) and Lender (secured
party), from which information concerning the security interest granted by
this Deed of Trust may be obtained (each as required by the Uniform
Commercial Code), as are stated on the first page of this Deed of Trust.
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FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions relating to
further assurances and attorney-in-fact are a part of this Deed of Trust.
FURTHER ASSURANCES. At any time, and from time to time, upon request of
Lender, Trustor will make, execute and deliver, or will cause to be made,
executed or delivered, to Lender or to Lender's designee, and when
requested by Lender, cause to be filed, recorded, refiled, or rerecorded,
as the case may be, at such times and in such offices and places as Lender
may deem appropriate, any and all such mortgages, deeds of trust, security
deeds, security agreements, financing statements, continuation statements,
instruments of further assurance, certificates, and other documents as may,
in the sole opinion of Lender, be necessary or desirable in order to
effectuate, complete, perfect, continue, or preserve (a) the obligations of
Trustor under the Note, this Deed of Trust, and the Related Documents, and
(b) the liens and security interests created by this Deed of Trust as first
and prior liens on the Property, whether now owned or hereafter acquired by
Trustor. Unless prohibited by law or agreed to the contrary by Lender in
writing, Trustor shall reimburse Lender for all costs and expenses incurred
in connection with the matters referred to in this paragraph.
ATTORNEY-IN-FACT. If Trustor fails to do any of the things referred to in
the preceding paragraph, lender may do so for and in the name of Trustor
and at Trustor's expense. For such purposes, Trustor hereby irrevocably
appoints Lender as Trustor's attorney-in-fact for the purpose of making,
executing, delivering, filing, recording, and doing all other things as may
be necessary or desirable, in Lender's sole opinion, to accomplish the
matters referred to in the preceding paragraph.
FULL PERFORMANCE. If Trustor pays all the indebtedness when due, terminates the
line of credit, and otherwise performs all the obligations imposed upon Trustor
under this Deed of Trust, Lender shall execute and deliver to Trustee a request
for full reconveyance and shall execute and deliver to Trustor suitable
statements of termination of any financing statement on file evidencing
Lender's security interest in the Rents and the Personal Property. Lender may
charge Trustor a reasonable reconveyance fee at the time of reconveyance.
DEFAULT. Each of the following, at the option of Lender, shall constitute an
event of default ("Event of Default") under this Deed of Trust:
DEFAULT ON INDEBTEDNESS. Failure of Trustor to make any payment when due on
the Indebtedness.
DEFAULT ON OTHER PAYMENTS. Failure of Trustor within the time required by
this Deed of Trust to make any payment for taxes or Insurance, or any
other payment necessary to prevent filing of or to effect discharge of any
lien.
DEFAULT IN FAVOR OF THIRD PARTIES. Should Borrower or any Trustor default
under any loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement, in favor of any other creditor or person
that may materially affect any of Borrower's property or Borrower's or any
Trustor's ability to repay the Loans or perform their respective
obligations under this Deed of Trust or any of the Related Documents.
COMPLIANCE DEFAULT. Failure of Trustor to comply with any other term,
obligation, covenant or condition contained in this Deed of Trust, the Note
or in any of the Related Documents.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by or on behalf of Trustor under this Deed of Trust,
the Note or the Related Documents is false or misleading in any material
respect, either now or at the time made or furnished.
DEFECTIVE COLLATERALIZATION. This Deed of Trust or any of the Related
Documents ceases to be in full force and effect (including failure of any
collateral documents to create a valid and perfected security interest or
lien) at any time and for any reason.
INSOLVENCY. The dissolution or termination of Trustor's existence as a
going business, the insolvency of Trustor, the appointment of a receiver
for any part of Trustor's property, any assignment for the benefit of
creditors, any type of creditor workout, or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against Trustor.
FORECLOSURE, FORFEITURE, ETC. Commencement of foreclosure or forfeiture
proceedings, whether by judicial proceeding, self-help, repossession or any
other method, by any creditor of Trustor or by any governmental agency
against any of the Property; However, this subsection shall not apply in
the event of a good faith dispute by Trustor as to the validity or
reasonableness of the claim which is the basis of the foreclosure or
forfeiture proceeding, provided that Trustor gives Lender written notice of
such claim and furnishes reserves or a surety bond for the claim
satisfactory to Lender.
BREACH OF OTHER AGREEMENT. Any breach by Trustor under the terms of any
other agreement between Trustor and Lender that is not remedied within any
grace period provided therein, including without limitation any agreement
concerning any indebtedness or other obligation of Trustor to Lender,
whether existing now or later.
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with respect
to any Guarantor of any of the indebtedness or any Guarantor dies or
becomes incompetent, or revokes or disputes the validity of, or liability
under, any Guaranty of the Indebtedness. Lender, at its option, may, but
shall not be required to, permit the Guarantor's estate to assume
unconditionally the obligations arising under the guaranty in a manner
satisfactory to Lender, and, in doing so, cure the Event of Default.
ADVERSE CHANGE. A material adverse change occurs in Trustor's financial
condition, or Lender believes the prospect of payment or performance of the
Indebtedness is impaired.
RIGHT TO CURE. If such a failure is curable and if Trustor has not been
given a notice of a breach of the same provision of this Deed of Trust
within the preceding twelve (12) months, it may be cured (and no Event of
Default will have occurred) if Trustor, after Lender sends written notice
demanding cure of such failure: (a) cures the failure within fifteen (15)
days; or (b) if the cure requires more than fifteen (15) days, immediately
initiates steps sufficient to cure the failure and thereafter continues and
completes all reasonable and necessary steps sufficient to produce
compliance as soon as reasonably practical.
RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of any Event of Default and
at any time thereafter, Trustee or Lender, at its option, may exercise any one
or more of the following rights and remedies, in addition to any other rights or
remedies provided by law:
FORECLOSURE BY SALE. Upon an Event of Default under this Deed of Trust,
Beneficiary may declare the entire Indebtedness secured by this Deed of
Trust immediately due and payable by delivery to Trustee of written
declaration of default and demand for sale and of written notice of default
and of election to cause to be sold the Property, which notice Trustee
shall cause to be filed for record. Beneficiary also shall deposit with
Trustee this Deed of Trust, the Note, other documents requested by Trustee,
and all documents evidencing expenditures secured hereby. After the lapse
of such time as may then be required by law following the recordation of
the notice of default, and notice of sale having been given as then
required by law, Trustee, without demand on Trustor, shall sell the
Property at the time and place fixed by it in the notice of sale, either as
a whole or in separate parcels, and in such order as it may determine, at
public auction to the highest bidder for cash in lawful money of the United
States, payable at time of sale. Trustee may postpone sale of all or any
portion of the Property by public announcement at such
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time and place of sale, and from time to time thereafter may postpone such
sale by public announcement at the time fixed by the preceding
postponement in accordance with applicable law. Trustee shall deliver to
such purchaser its deed conveying the Property so sold, but without any
covenant or warranty, express or 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. After deducting all costs, fees and expenses of
Trustee and of this Trust, including cost of evidence of title in
connection with sale, Trustee shall apply the proceeds of sale to payment
of; all sums expended under the terms hereof, not then repaid, with
accrued interest at the amount allowed by law in effect at the date
hereof; all other sums then secured hereby; and the remainder, if any, to
the person or persons legally entitled thereto.
JUDICIAL FORECLOSURE. With respect to all or any part of the Real
Property, Lender shall have the right in lieu of foreclosure by power of
sale to foreclose by judicial foreclosure in accordance with and to the
full extent provided by California law.
UCC REMEDIES. With respect to all or any part of the Personal Property,
Lender shall have all the rights and remedies of a secured party under
the Uniform Commercial Code, including without limitation the right to
recover any deficiency in the manner and to the full extent provided by
California law.
COLLECT RENTS. Lender shall have the right, without notice to Trustor, to
take possession of and manage the Property and collect the Rents,
including amounts past due and unpaid, and apply the net proceeds, over
and above Lender's costs, against the indebtedness. In furtherance of this
right, Lender may require any tenant or other user of the Property to make
payments of rent or use fees directly to Lender. If the Rents are
collected by Lender, then Trustor irrevocably designates Lender as
Trustor's attorney-in-fact to endorse Instruments received in payment
thereof in the name of Trustor and to negotiate the same and collect the
proceeds. Payments by tenants or other users to Lender in response to
Lender's demand shall satisfy the obligations for which the payments are
made, whether or not any proper grounds for the demand existed. Lender may
exercise its rights under this subparagraph either in person, by agent, or
through a receiver.
APPOINT RECEIVER. Lender shall have the right to have a receiver appointed
to take possession of all or any part of the Property, with the power to
protect and preserve the Property, to operate the Property preceding
foreclosure or sale, and to collect the Rents from the Property and apply
the proceeds, over and above the cost of the receivership, against the
Indebtedness. The receiver may serve without bond if permitted by law.
Lender's right to the appointment of a receiver shall exist whether or not
the apparent value of the Property exceeds the Indebtedness by a
substantial amount. Employment by Lender shall not disqualify a person
from serving as a receiver.
TENANCY AT SUFFERANCE. If Trustor remains in possession of the Property
after the Property is sold as provided above or Lender otherwise becomes
entitled to possession of the Property upon default of Trustor, Trustor
shall become a tenant at sufferance of Lender or the purchaser of the
Property and shall, at Lender's option, either (a) pay a reasonable rental
for the use of the Property, or (b) vacate the Property immediately upon
the demand of Lender.
OTHER REMEDIES. Trustee or Lender shall have any other right or remedy
provided in this Deed of Trust or the Note or by law.
NOTICE OF SALE. Lender shall give Trustor reasonable notice of the time
and place of any public sale of the Personal Property or of the time after
which any private sale or other intended disposition of the Personal
Property is to be made. Reasonable notice shall mean notice given at least
five (5) days before the time of the sale or disposition. Any sale of
Personal Property may be made in conjunction with any sale of the Real
Property.
SALE OF THE PROPERTY. To the extent permitted by applicable law, Trustor
hereby waives any and all rights to have the Property marshalled. In
exercising its rights and remedies, the Trustee or Lender shall be free to
sell all or any part of the Property together or separately, in one sale
or by separate sales. Lender shall be entitled to bid at any public sale
on all or any portion of the Property.
WAIVER; ELECTION OF REMEDIES. A waiver by any party of a breach of a
provision of this Deed of Trust shall not constitute a waiver of or
prejudice the party's rights otherwise to demand strict compliance with
that provision or any other provision. Election by Lender to pursue any
remedy provided in this Deed of Trust, the Note, in any Related Document,
or provided by law shall not exclude pursuit of any other remedy, and an
election to make expenditures or to take action to perform an obligation
of Trustor under this Deed of Trust after failure of Trustor to perform
shall not affect Lender's right to declare a default and to exercise any
of its remedies.
ATTORNEYS' FEES; EXPENSES. If Lender institutes any suit or action to
enforce any of the terms of this Deed of Trust, Lender shall be entitled
to recover such sum as the court may adjudge reasonable as attorneys'
fees at trial and on any appeal. Whether or not any court action is
involved, all reasonable expenses incurred by Lender which in Lender's
opinion are necessary at any time for the protection of its interest or
the enforcement of its rights shall become a part of the Indebtedness
payable on demand and shall bear interest at the Note rate from the date
of expenditure until repaid. Expenses covered by this paragraph include,
without limitation, however subject to any limits under applicable law,
Lender's attorneys' fees whether or not there is a lawsuit, including
attorneys' fees for bankruptcy proceedings (including efforts to modify or
vacate any automatic stay or injunction), appeals and any anticipated
post-judgment collection services, the cost of searching records,
obtaining title reports (including foreclosure reports), surveyors'
reports, appraisal fees, title insurance, and fees for the Trustee, to the
extent permitted by applicable law. Trustor also will pay any court costs,
in addition to all other sums provided by law.
RIGHTS OF TRUSTEE. Trustee shall have all of the rights and duties of
Lender as set forth in this section.
POWERS AND OBLIGATIONS OF TRUSTEE. The following provisions relating to the
powers and obligations of Trustee are part of this Deed of Trust.
POWERS OF TRUSTEE. In addition to all powers of Trustee arising as a
matter of law, Trustee shall have the power to take the following actions
with respect to the Property upon the written request of Lender and
Trustor; (a) join in preparing and filing a map or plat of the Real
Property, including the dedication of streets or other rights to the
public; (b) join in granting any easement or creating any restriction on
the Real Property; and (c) join in any subordination or other agreement
affecting this Deed of Trust or the Interest of Lender under this Deed of
Trust.
OBLIGATIONS TO NOTIFY. Trustees shall not be obligated to notify any other
party of a pending sale under any other trust deed or lien, or of any
action or proceeding in which Trustor, Lender, or Trustee shall be a
party, unless the action or proceeding is brought by Trustee.
TRUSTEE. Trustee shall meet all qualifications required for Trustee under
applicable law. In addition to the rights and remedies set forth above,
with respect to all or any part of the Property, the Trustee shall have
the right to foreclose by notice and sale, and Lender shall have the right
to foreclose by judicial foreclosure, in either case in accordance with
and to the full extent provided by applicable law.
SUCCESSOR TRUSTEE. Lender, at Lender's option, may from time to time
appoint a successor Trustee to any Trustee appointed hereunder by an
Instrument executed and acknowledged by Lender and recorded in the office
of the recorder of BUTTE County, California. The Instrument shall contain,
in addition to all other matters required by state law, the names of the
original Lender, Trustee, and Trustor, the book and page where this Deed
of Trust is recorded, and the name and address of the successor trustee,
and the Instrument shall be executed and
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acknowledged by Lender or its successors in interest. The successor
trustee, without conveyance of the Property, shall succeed to all the
title, power, and duties conferred upon the Trustee in this Deed of Trust
and by applicable law. This procedure for substitution of trustee shall
govern to the exclusion of all other provisions for substitution.
NOTICES TO TRUSTOR AND OTHER PARTIES. Any notice under this Deed of Trust shall
be in writing, may be sent by telefacsimile (unless otherwise required by law),
and shall be effective when actually delivered, or when deposited with a
nationally recognized overnight courier, or, if mailed, shall be deemed
effective when deposited in the United States mail first class, certified or
registered mail, postage prepaid, directed to the addresses shown near the
beginning of this Deed of Trust. Any party may change its address for notices
under this Deed of Trust by giving formal written notice to the other parties,
specifying that the purpose of the notice is to change the party's address. All
copies of notices of foreclosure from the holder of any lien which has priority
over this Deed of Trust shall be sent to Lender's address, as shown near the
beginning of this Deed of Trust. For notice purposes, Trustor agrees to keep
Lender and Trustee informed at all times of Trustor's current address. Each
Trustor requests that copies of any notices of default and sale be directed to
Trustor's address shown near the beginning of this Deed of Trust.
STATEMENT OF OBLIGATION. Lender may collect a fee, in an amount not to exceed
the statutory maximum, for furnishing the statement of obligation as provided by
Section 2943 of the Civil Code of California.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Deed of Trust:
AMENDMENTS. This Deed of Trust, together with any Related Documents,
constitute the entire understanding and agreement of the parties as to the
matters set forth in this Deed of Trust. No alteration of or amendment to
this Deed of Trust shall be effective unless given in writing and signed by
the party or parties sought to be charged or bound by the alteration or
amendment.
ANNUAL REPORTS. If the Property is used for purposes other than Trustor's
residence, Trustor shall furnish to Lender, upon request, a certified
statement of net operating income received from the Property during
Trustor's previous fiscal year in such form and detail as Lender shall
require. "Net operating income" shall mean all cash receipts from the
Property less all cash expenditures made in connection with the operation
of the Property.
ACCEPTANCE BY TRUSTEE. Trustee accepts this Trust when this Deed of Trust,
duly executed and acknowledged, is made a public record as provided by law.
APPLICABLE LAW. This Deed of Trust has been delivered to Lender and
accepted by Lender in the State of California. This Deed of Trust shall be
governed by and construed in accordance with the laws of the State of
California.
CAPTION HEADINGS. Caption headings in this Deed of Trust are for
convenience purposes only and are not to be used to interpret or define the
provisions of this Deed of Trust.
MERGER. There shall be no merger of the interest or estate created by this
Deed of Trust with any other interest or estate in the Property at any time
held by or for the benefit of Lender in any capacity, without the written
consent of Lender.
MULTIPLE PARTIES; CORPORATE AUTHORITY. All obligations of Trustor under
this Deed of Trust shall be joint and several, and all references to
Trustor shall mean each and every Trustor. This means that each of the
persons signing below is responsible for all obligations in this Deed of
Trust.
SEVERABILITY. If a court of competent jurisdiction finds any provision of
this Deed of Trust to be invalid or unenforceable as to any person or
circumstance, such finding shall not render that provision invalid or
unenforceable as to any other persons or circumstances. If feasible, any
such offending provision shall be deemed to be modified to be within the
limits of enforceability or validity; however, if the offending provision
cannot be so modified, it shall be stricken and all other provisions of
this Deed of Trust in all other respects shall remain valid and
enforceable.
SUCCESSORS AND ASSIGNS. Subject to the limitations stated in this Deed of
Trust on transfer of Trustor's interest, this Deed of Trust shall be
binding upon and inure to the benefit of the parties, their successors and
assigns. If ownership of the Property becomes vested in a person other than
Trustor, Lender, without notice to Trustor, may deal with Trustor's
successors with reference to this Deed of Trust and the Indebtedness by way
of forbearance or extension without releasing Trustor from the obligations
of this Deed of Trust or liability under the Indebtedness.
TIME IS OF THE ESSENCE. Time is of the essence in the performance of this
Deed of Trust.
WAIVERS AND CONSENTS. Lender shall not be deemed to have waived any rights
under this Deed of Trust (or under the Related Documents) unless such
waiver is in writing and signed by Lender. No delay or omission on the part
of Lender is exercising any right shall operate as a waiver of such right
or any other right. A waiver by any party of a provision of this Deed of
Trust shall not constitute a waiver of or prejudice the party's right
otherwise to demand strict compliance with that provision or any other
provision. No prior waiver by Lender, nor any course of dealing between
Lender and Trustor, shall constitute a waiver of any of Lender's rights or
any of Trustor's obligations as to any future transactions. Whenever
consent by Lender is required in this Deed of Trust, the granting of such
consent by Lender in any instance shall not constitute continuing consent
to subsequent instances where such consent is required.
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EACH TRUSTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS DEED OF TRUST,
AND EACH TRUSTOR AGREES TO ITS TERMS.
TRUSTOR:
FAFCO, INC.
By: /s/ FREEMAN A. FORD
----------------------------
FREEMAN A. FORD, President
_______________________________________________________________________________
CERTIFICATE OF ACKNOWLEDGMENT
STATE OF California )
----------------------)
)ss
COUNTY OF San Mateo )
---------------------)
On April 14, 2000, before me, Patricia L. Waters, personally appeared FREEMAN
A. FORD, personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument
MGC1----------------------------
PATRICIA L. WATERS
COMM. #1254893
SEAL NOTARY PUBLIC-CALIFORNIA
SAN MATEO COUNTY
COMM.EXP. MARCH 25, 2004
----------------------------MGC1
WITNESS my hand and official seal.
Signature /s/ PATRICIA L. WATERS
------------------------ (Seal)
_______________________________________________________________________________
(DO NOT RECORD)
REQUEST FOR FULL RECONVEYANCE
(To be used only when obligations have been paid in full)
To: , Trustee
----------------------
The undersigned is the legal owner and holder of all indebtedness secured by
this Deed of Trust. All sums secured by this Deed of Trust have been fully paid
and satisfied. You are hereby directed, upon payment to you of any sums owing
to you under the terms of this Deed of Trust or pursuant to any applicable
statute, to cancel the Note secured by this Deed of Trust (which is delivered
to you together with this Deed of Trust), and to reconvey, without warranty, to
the parties designated by the terms of this Deed of Trust, the estate now held
by you under this Deed of Trust. Please mail the reconveyance and Related
Documents to:
- -------------------------------------------------------.
Date: Beneficiary:
--------------------- -------------------------
By:
-------------------------
Its:
-------------------------
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