HomeMy WebLinkAboutAgreement A-20-494 with UPHoldings LLC.pdfPromissory Note –UPH Butterfly Gardens LP/Clovis
PROMISSORY NOTE
(Secured by a Deed of Trust)
$3,500,000.00 December 15, 2020
FOR VALUE RECEIVED, UPH BUTTERFLY GARDENS, L.P., a California limited
partnership (the “Borrower”), hereby promises to pay to the order of the County of Fresno,
Department of Behavioral Health (the “Lender”), or its assignee, at its offices at 1925 E. Dakota
Avenue, Fresno, California 93726, or such other place as Lender shall designate in writing from
time to time, the principal sum of THREE MILLION FIVE HUNDRED THOUSAND AND
NO/100 DOLLARS ($3,500,000.00) (the “Loan”), in United States Dollars, together with
interest thereon as hereinafter provided. This Note is entered into in conjunction to the acquisition,
development and operation of a seventy-five unit affordable housing development on certain real
property located in the City of Clovis, California (the “Property”).
1.INTEREST RATE. Interest shall be charged on the outstanding principal balance from
the date advanced until the full amount of principal due hereunder has been paid, at a simple rate
equal to 0%.
2.TERM AND REPAYMENT REQUIREMENTS. This Note shall have a term of 55
years beginning after the recording of the Notice of Completion (“Term”).
3.MATURITY DATE. The entire unpaid balance of interest and principal shall be due and
payable on or before the earlier to occur of (a) June 1 of the 55th year from the date of Completion
(the “Maturity Date”), unless due and payable sooner according to the terms of this Note or the
Deed of Trust (as such term is defined hereinbelow).
4.DISBURSEMENTS. Lender agrees to disburse the Loan funds to Borrower concurrently
with the close of escrow and transfer of the Property to Borrower. Borrower shall uses such
disbursed funds only for purposes in connection with the payment of certain development and
construction costs and expenses incurred in connection with the development.
5.TENDER OF PAYMENT. All payments on this Note are payable on or before 2:00 p.m.
on the due date thereof, at the office of Lender specified above and shall be credited on the date
the funds become available lawful money of the United States. All sums payable to Lender which
are due on a day on which Lender is not open for business shall be paid on the next succeeding
business day and such extended time shall be included in the computation of interest.
6.PREPAYMENT. The principal amount of this Note may be prepaid in whole or in part
at any time, and from time to time, without premium or penalty. Any prepayment shall include
accrued and unpaid interest to the date of prepayment on the principal amount prepaid and all other
sums due and payable hereunder.
Agreement No. 20-494
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7.SECURITY FOR THE NOTE. This Note is secured by a Deed of Trust, Assignment of
Rents, Security Agreement and Fixture Filing of even date herewith (the “Deed of Trust”),
recorded in the Official Records of Fresno County, California.
8.DEFAULT RATE. From and after the Maturity Date or from and after the occurrence of
an Event of Default (as such term is defined hereinbelow), irrespective of any declaration of
maturity, all amounts remaining unpaid or thereafter accruing hereunder, shall, at Lender's option,
bear interest at a default rate of four percent (4%) per annum above the interest rate then in effect
as set forth herein (the “Default Rate”), or the highest permissible rate under applicable usury
law, whichever is less. Such default rate of interest shall be payable upon demand, but in no event
later than when scheduled interest payments are due, and shall also be charged on the amounts
owed by Borrower to Lender pursuant to any judgments entered in favor of Lender with respect to
this Note.
9.COVENANTS
9.1. Indemnification.
9.1.1. Borrower hereby indemnifies and agrees to defend and hold harmless
Lender, its officers, employees and agents, from and against any and all losses, damages, or
liabilities and from any suits, claims or demands, including reasonable attorneys' fees incurred in
investigating or defending such claim, suffered by any of them and caused by, arising out of, or in
any way connected with the transactions contemplated therein (unless determined by a final
judgment of a court of competent jurisdiction to have been caused solely by the gross negligence
or willful misconduct of any of the indemnified parties) including, without limitation the failure
of Borrower to perform any obligations herein required to be performed by Borrower.
9.1.2. In case any action shall be brought against Lender, its officers, employees
or agents, in respect to which indemnity may be sought against Borrower, Lender or such other
party shall promptly notify Borrower and Borrower shall assume the defense thereof, including
the employment of counsel selected by Borrower and satisfactory to Lender, the payment of all
costs and expenses and the right to negotiate and consent to settlement. Lender shall have the
right, at its sole option, to employ separate counsel in any such action and to participate in the
defense thereof, all at Borrower's sole cost and expense. Borrower shall not be liable for any
settlement of any such action effected without its consent (unless Borrower fails to defend such
claim), but if settled with Borrower's consent, or if there be a final judgment for the claimant in
any such action, Borrower agrees to indemnify and hold harmless Lender from and against any
loss or liability by reason of such settlement or judgment.
9.1.3. The provisions of this Section 9.1 shall survive the repayment or other
satisfaction of the Liabilities.
10.EVENTS OF DEFAULT. Each of the following shall constitute an event of default
hereunder (an “Event of Default”): (a) the failure of Borrower to pay any amount of principal or
interest hereunder when due and payable and the continuance of such non-payment for a period of
five (5) days after its due date hereunder; (b) the Borrower becoming insolvent or bankrupt, being
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unable or admitting in writing its inability to pay its debts as they become due, or making a general
assignment to creditors; (c) initiation by or against Borrower or proceedings for the appointment
of a receiver, trustee or liquidator, which proceedings are not dismissed within ninety (90) days of
initiation; (d) initiation by or against Borrower of proceedings under any bankruptcy,
reorganization, readjustment of debt, insolvency dissolution, liquidations or other similar law,
which proceedings are not dismissed within ninety (90) days of initiation; (e) the sale or transfer
of the Project or any interest therein without the prior written consent of Lender; and (f) the
occurrence of any other Event of Default under the Deed of Trust.
11.REMEDIES. If an Event of Default exists, Lender may exercise any right, power or
remedy permitted by law or as set forth herein, or any other of the Loan Documents (as such term
is defined below in Section 13) including, without limitation, the right to declare the entire unpaid
principal amount hereof and all interest accrued hereon, and all other sums secured by any other
Loan Document, to be, and such principal, interest and other sums shall thereupon become,
immediately due and payable.
12.MISCELLANEOUS.
12.1. Integration. This Note and the Deed of Trust securing the same constitute the sole
agreement of the parties with respect to the transaction contemplated hereby and supersede all oral
negotiations and prior writings with respect thereto.
12.2. Attorneys' Fees and Expenses. If Lender retains the services of counsel by reason
of a claim of a default or an Event of Default hereunder or on account of any matter involving this
Note, all costs of suit and all reasonable attorneys' fees (determined at customary rates for hours
actually worked, and not as a statutory percentage of amounts outstanding under this Note) and
such other reasonable expenses so incurred by Lender shall be paid by Borrower, on demand, and
shall be deemed part of the obligations evidenced hereby.
12.3. No Implied Waiver. Lender shall not be deemed to have modified or waived any
of its rights or remedies hereunder unless such modification or waiver is in writing and signed by
Lender and then only to the extent specifically set forth therein. A waiver in one event shall not
be construed as continuing or as a waiver of or bar to such right or remedy in a subsequent event.
After any acceleration of, or the entry of any judgment on, this Note, the acceptance by Lender of
any payments by or on behalf of Borrower on account of the indebtedness evidenced by this Note
shall not cure or be deemed to cure any Event of Default or reinstate or be deemed to reinstate the
terms of this Note absent an express written agreement duly executed by Lender and Borrower.
12.4. Waiver. Borrower, jointly and severally, waives demand, notice, presentment,
protest, demand for payment, notice of dishonor, notice of protest and diligence of collection of
this Note. Borrower consents to any and all extensions of time, renewals, waivers, or modifications
that may be granted by Lender with respect to the payment or other provisions of this Note, and to
the release of any collateral, with or without substitution. Borrower agrees that makers, endorsers,
guarantors and sureties may be added or released without notice and without affecting Borrower's
liability hereunder. The liability of Borrower shall not be affected by the failure of Lender to
perfect or otherwise obtain or maintain the priority or validity of any security interest in any
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collateral. The liability of Borrower shall be absolute and unconditional and without regard to the
liability of any other party hereto.
12.5. No Usurious Amounts. Anything herein contained to the contrary
notwithstanding, Borrower does not agree and shall not be obligated to pay interest hereunder at a
rate, which is in excess of the maximum rate permitted by law. If by the terms of this Note,
Borrower is at any time required to pay interest at a rate in excess of such maximum rate, the rate
of interest under this Note shall be deemed to be immediately reduced to such maximum legal rate
and the portion of all prior interest payments in excess of such maximum legal rate shall be applied
to and shall be deemed to have been payments in reduction of the outstanding principal balance.
Borrower agrees that in determining whether or not any interest payable under this Note exceeds
the highest rate permitted by law, any non-principal payment, including without limitation, late
charges, shall be deemed to the extent permitted by law to be an expense, fee or premium rather
than interest.
12.6. Partial Invalidity. The invalidity or unenforceability of any one or more
provisions of this Note shall not render any other provision invalid or unenforceable. In lieu of
any invalid or unenforceable provision, there shall be added automatically a valid and enforceable
provision as similar in terms to such invalid or unenforceable provision as may be possible.
12.7. Binding Effect. The covenants, conditions, waivers, releases and agreements
contained in this Note shall bind, and the benefits thereof shall inure to, the parties hereto and their
respective heirs, executors, administrators, successors and assigns; provided, however, that this
Note cannot be assigned by Borrower without the prior written consent of Lender, and any such
assignment or attempted assignment by Borrower shall be void and of no effect with respect to
Lender.
12.8. Modifications. This Note may not be supplemented, extended, modified or
terminated except by an agreement in writing signed by the party against whom enforcement of
any such waiver, change, modification or discharge is sought.
12.9. Jurisdiction. Borrower irrevocably appoints each and every owner, partner and/or
officer of Borrower as its attorneys upon whom may be served, by regular or certified mail at the
address set forth below, any notice, process or pleading in any action or proceeding against it
arising out of or in connection with this Note; and Borrower hereby consents that any action or
proceeding against it be commenced and maintained in any court within the State of California by
service of process on any such owner, partner and/or officer; and Borrower agrees that the courts
of such State shall have jurisdiction with respect to the subject matter hereof and the person of
Borrower and all collateral securing the obligations of Borrower. Borrower agrees not to assert
any defense to any action or proceeding initiated by Lender based upon improper venue or
inconvenient forum.
12.10. Notices. All notices and communications under this Note shall be in writing and
shall be given by either (a) hand-delivery, (b) first class mail (postage prepaid), or (c) reliable
overnight commercial courier (charges prepaid), to the addresses below. Notice shall be deemed
to have been given and received: (i) if by hand delivery, upon delivery; (ii) if by mail, three (3)
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calendar days after the date first deposited in the United States mail; and (iii) if by overnight
courier, on the date scheduled for delivery. A party may change its address by giving written
notice to the other party as specified herein.
To the Borrower: UPH Butterfly Gardens, L.P.
900 W. Jackson Boulevard
Suite 2W
Chicago, Illinois 60607
Attn:
To the Lender: Department of Behavioral Health
1925 E. Dakota Avenue
Fresno, California 93726
Attn: Housing Unit
12.11. Governing Law. Irrespective of the place of execution and/or delivery, this Note
shall be governed by and construed in accordance with the substantive laws of the State of
California without reference to conflict of laws principles.
13.LIMITED PARTNER CURE RIGHTS. Notwithstanding anything to the contrary
contained in this Note or the Deed of Trust (collectively, the “Seller Loan Documents”), any cure
of any default made or tendered by Borrower’s Limited Partner (as such term is defined in the
Partnership Agreement) hereunder shall be deemed to be a cure by Borrower and shall be accepted
or rejected on the same basis as if made or tendered by Borrower.
14.NONRECOURSE. The Loan is a nonrecourse obligation of Borrower. Neither the
Borrower, nor any partner of Borrower shall have any personal liability for the repayment of the
Loan. Lender's sole recourse shall be to realize against the collateral described in the Deed of
Trust securing the repayment of the Loan.
[signature page follows]
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Recording Requested by and
When Recorded, Mail to:
County of Fresno
Department of Behavioral Health
1925 E. Dakota Avenue
Fresno, California 93726
Attention:
-----------------------------Space Above This Line for Recorder's Use----------------------------
DEED OF TRUST, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT
AND FIXTURE FILING ("Deed of Trust") is made as of ____________, 202__, by UPH
BUTTERFLY GARDENS, L.P., a California limited partnership ("Trustor"), whose address
is [900 W. Jackson Boulevard, Suite W, Chicago, Illinois 60607], to FIRST AMERICAN
TITLE INSURANCE COMPANY ("Trustee"), whose address is 777 S Figueroa St 4th
Floor, Los Angeles, CA 90017, for the benefit of the COUNTY OF FRESNO,
DEPARTMENT OF BEHAVIORAL HEALTH (“Beneficiary"). This Deed of Trust is
executed in connection with a promissory note secured by this Deed of Trust (the “Note”).
1.Grant in Trust. For valuable consideration, Trustor hereby grants, transfers and
assigns to Trustee, in trust, with power of sale, for the benefit of Beneficiary, all right, title
and interest Trustor now has or may have in the future in the following (all or any part of the
following, or any interest in all or any part of it, as the context requires, the "Property"):
(a)that real property situated in the City of Clovis, County of Fresno, State
of California, described in Exhibit A attached hereto and incorporated herein by reference
(the "Land"); and
(b)all buildings, structures and other improvements now or in the future
located or to be constructed on the Land (the "Improvements"); and
(c)all existing and future leases, subleases, tenancies, subtenancies,
licenses, occupancy agreements and concessions ("Leases") relating to the use and enjoyment
of all or any part of the Land and Improvements, and any and all guaranties and other
agreements relating to or made in connection with any of the Leases; and
(d)except for personal property and removable fixtures installed by tenants
or subtenants, all goods, materials, supplies, chattels, furniture, fixtures, equipment and
machinery now or later to be attached to, placed in or on, or used in connection with the use,
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enjoyment, occupancy or operation of all or any part of the Land and Improvements, whether
stored on the Land or elsewhere, including all pumping plants, engines, pipes, ditches and
flumes, and also all gas, electric, cooking, heating, cooling, air conditioning, lighting,
refrigeration and plumbing fixtures and equipment, all of which will be considered to the
fullest extent of the law to be real property for purposes of this Deed of Trust; and
(e)all building materials, equipment, work in process or other personal
property of any kind, whether stored on the Land or elsewhere, that have been or later will be
acquired for the purpose of being delivered to, incorporated into or installed in or about the
Land or Improvements; and
(f)all proceeds, including proceeds of all present and future fire, hazard or
casualty insurance policies and all condemnation awards or payments now or later to be made
by any public body or decree by any court of competent jurisdiction for any taking or in
connection with any condemnation or eminent domain proceeding, and all causes of action
and their proceeds for any damage or injury to the Land, Improvements or the other property
described above or any part of them, or breach of warranty in connection with the
construction of the Improvements; and
(g)all books and records pertaining to any and all of the property described
above, including records relating to tenants under any Leases, the qualifications of any tenants
and any certificates, vouchers and other documents in any way related thereto and records
relating to the application and allocation of any federal, state or local tax credits or benefits;
and
(h)all rents, revenues, issues, royalties, proceeds and profits, including
prepaid rent and security deposits ("Rents"), from the Land and the Improvements, subject
to: (i) Trustor's right to collect and retain the same as they become due and payable; and (ii)
Beneficiary's rights under Section 6(d); and
(i)All intangible personal property and rights relating to the Property or its
operation or used in connection with it, including, without limitation, permits, licenses, plans,
specifications, construction contracts, subcontracts, bids, soils reports, engineering reports,
land planning maps, drawings, construction contracts, notes, drafts, documents, engineering
and architectural drawings, deposits for utility services, installations, refunds due Trustor,
trade names, trademarks, and service marks; and
(j)all proceeds of, interest accrued on, additions and accretions to,
substitutions and replacements for, and changes in any of the property described above.
This Deed of Trust constitutes a security agreement under, and a fixture filing in accordance
with, the California Uniform Commercial Code, as it may be amended from time to time. The
filing of a financing statement pertaining to personal property may not be construed in any
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way as derogating from or impairing the lien of, or the rights or obligations of the parties
under, this Deed of Trust.
If Trustor shall sell, convey, transfer or alienate the Property, or any part thereof, or
any interest therein, or shall be divested of its title or any interest in any manner or way,
whether or not voluntarily, without the written consent of Beneficiary being first obtained,
Beneficiary shall have the right, at its option, except as prohibited by law, to declare any
indebtedness or obligations secured by this Deed of Trust, irrespective of the maturity date
specified in the Note, immediately due and payable.
2. Obligations Secured. This Deed of Trust is given for the purpose of securing the
following (collectively, the "Secured Obligations"):
(a) payment of the indebtedness evidenced by Deed of Trust and the Note
in the original principal amount of Three Million Five Hundred Thousand and No/100 Dollars
($3,500,000.00), according to the terms of the Note; and
(b) payment of any additional sums Trustor may borrow or receive from
Beneficiary, when evidenced by another note (or any other instrument) reciting that payment
is secured by this Deed of Trust.
3. Senior Deeds of Trust. This Deed of Trust, securing the Note, is subject and
subordinate to the following instruments:
(a) Permanent private placement of tax-exempt bond proceeds (financial
institution to be determined
(b) No Place Like Home funds via the California Department of Housing
and Community Development
4. Trustor's Covenants. To protect the security of this Deed of Trust, Trustor
agrees as follows:
(a) to perform the Secured Obligations in accordance with their respective
terms;
(b) to keep the Land and the Improvements in good condition and repair,
normal wear and tear and acts of God excepted; not to remove or demolish any Improvements
without Beneficiary's prior written consent; subject to Section 5 below, to complete or restore
promptly and in good and workmanlike manner any Improvement constructed, damaged or
destroyed on the Land; to pay when due all claims for labor performed and materials
furnished therefor, subject to Trustor's right to contest any claim in good faith; to comply with
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all laws affecting the Project, subject to Trustor's right to contest any claim in good faith; not
to commit or permit waste with respect to the Land or the Improvements; not to commit,
suffer or permit any act upon the Land or the Improvements in violation of law, including
environmental laws; and to do all other acts made reasonably necessary by the character or
use of the Land and the Improvements;
(c)to provide, maintain and deliver to Beneficiary property and liability
insurance as required under the Agreement and apply any insurance proceeds as provided
below;
(d)to appear in and defend any action or proceeding purporting to affect
the security hereof or the rights or powers of Beneficiary or Trustee; and to pay all costs and
expenses, including cost of evidence of title and reasonable attorneys' fees and costs incurred
in any such action or proceeding in which Beneficiary or Trustee may appear and in any suit
brought by Beneficiary to foreclose this Deed of Trust following an Event of Default;
(e)to pay in accordance with the Agreement, but in each case prior to
delinquency: (i) all taxes and assessments affecting the Property, including assessments on
appurtenant water stock; and (ii) all encumbrances, charges and liens, with interest, on the
Property or any part thereof that appear to be prior or superior hereto;
(f)should Trustor fail to make any payment or to do any act as herein
provided, then, without: (i) obligation to do so; (ii) notice to or demand upon Trustor; or
(iii)releasing Trustor from any obligation hereof, Beneficiary or Trustee may: (A) make or
do the same in any manner and to the extent as it deems necessary to protect the security
hereof; (B) appear in and defend any action or proceeding purporting to affect the security
hereof or the rights or powers of Beneficiary or Trustee; (C) pay, purchase, contest or
compromise any encumbrance, charge or lien that in its judgment appears to be prior or
superior hereto; and (D) in exercising these powers, pay necessary expenses, employ counsel
and pay reasonable attorneys' fees and costs, and Trustor consents to Beneficiary's and/or
Trustee's entry upon the Land and Improvements for any purpose set forth in this Subsection,
including Beneficiary's exercise of its rights under California Code of Civil Procedure Section
564(c); and
(g)to reimburse within five (5) days of demand all sums expended by
Beneficiary or Trustee pursuant to this Deed of Trust, with interest at an annual rate of interest
equal to the lesser of: (i) zero percent (0%); or (ii) the maximum lawful rate from date of
expenditure to the date of payment.
5.Insurance and Condemnation Proceeds.
(a)Trustor hereby assigns to Beneficiary any award of damages arising
from the condemnation of all or any part of the Property for public use and any insurance
proceeds arising from injury to all or any part of the Property or the Project.
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(b)Any condemnation award or insurance proceeds must be paid to
Beneficiary or, if Beneficiary has consented to subordinate the lien of this Deed of Trust to
the lien of another lender for the Project, according to the provisions in the senior lender's
loan documents.
(c)If a condemnation award or insurance proceeds are paid to Beneficiary,
Beneficiary will release or authorize the release of funds to Trustor, provided that the funds
will be used for the reconstruction of the Project in accordance with: (i) projections
demonstrating that reconstruction is economically feasible; and (ii) Trustor's construction
budget, each of which must be satisfactory to Beneficiary in its reasonable discretion. In all
other cases, Beneficiary may choose in its discretion to apply funds to Trustor's obligations
under the Note and the Agreement or to any senior obligations, in accordance with the
respective priorities of the approved lienholders as their interests may appear of record, with
the remaining funds, if any, released to Trustor.
(d)Trustor agrees that Beneficiary's application or release of funds
pursuant to this Section will not cure or waive any default or Notice of Default (as defined
below).
6.Further Agreements. Trustor further acknowledges and agrees as follows:
(a)Beneficiary does not waive its right either to require prompt payment
when due of all other sums secured by this Deed of Trust or to declare Trustor in default for
failure to pay timely by accepting payment of any sum secured hereby after its due date.
(b)Trustee may reconvey any part of the Property at any time or from time
to time, without liability therefor and without notice, upon written request of Beneficiary and
presentation of this Deed of Trust and the Note for endorsement without affecting the liability
of any entity or person for payment of the indebtedness secured hereby.
(c)Upon: (i) written request of Beneficiary stating that all obligations
secured hereby have been paid or performed; (ii) Beneficiary's surrender of this Deed of Trust
and the Note to Trustee for cancellation and retention or other disposition as Trustee in its
sole discretion may choose; and (iii) payment of its fees, if any, Trustee shall reconvey the
Property then held hereunder without covenant or warranty.
(d)As additional security, Trustor hereby irrevocably, absolutely and
unconditionally assigns to Beneficiary all Rents, whether now due, past due or to become due,
subject to Beneficiary's grant to Trustor of a license to collect and retain Rents as they become
due and payable so long as Trustor has not defaulted in performance of the Secured
Obligations.
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(e) Any voluntary or involuntary conveyance, sale, encumbrance, pledge
or other transfer of all or any interest in the Property or in Trustor, including a security
interest, in violation of the Agreement will constitute an Event of Default (as defined below)
giving Beneficiary the right to exercise its remedies at law or in equity.
(f) For the purposes of this Deed of Trust, Beneficiary from time to time
may substitute a successor or successors to Trustee named herein or acting hereunder by
instrument in writing executed by Beneficiary and duly acknowledged and recorded in the
office of the recorder of Fresno County, which instrument shall be conclusive proof of proper
substitution of a successor trustee or trustees. Without conveyance from Trustee, any
successor or substitute trustee will succeed to all title, estate, rights, powers and duties of
Trustee. The instrument must contain the name of the original Trustor, Trustee and
Beneficiary hereunder, the recording information for this Deed of Trust and the name and
address of the new Trustee.
(g) This Deed of Trust applies to, inures to the benefit of, and binds all
parties hereto, their heirs, legatees, devisees, administrators, executors, successors and
assigns, provided that this subsection does not constitute Beneficiary's consent to any transfer
in violation of this Deed of Trust. The term Beneficiary shall mean the holder of the Note,
whether or not named as Beneficiary herein. In this Deed of Trust, whenever the context so
requires, the masculine gender includes the feminine and/or the neuter, and the singular
number includes the plural.
(h) Trustee accepts this Trust when this duly executed and acknowledged
Deed of Trust is made a public record as provided by law. Trustee is not obligated to notify
any party hereto of pending sale under any other deed of trust or of any action or proceeding
in which Trustor, Beneficiary or Trustee shall be a party unless brought by Trustee.
7. Beneficiary's Rights Following Default. Upon any default by Trustor in
performance of the Secured Obligations following expiration of any applicable notice and
cure periods ("Event of Default"):
(a) Trustor's license to collect and retain Rents will terminate
automatically.
(b) Trustor consents to Beneficiary's entry upon and taking possession of
the Property or any part thereof, at any time after the occurrence of an Event of Default
without notice, either in person, by agent or by a receiver to be appointed by a court without
regard to the adequacy of any security for the indebtedness hereby secured to sue for or
otherwise collect and apply Rents, less costs and expenses of operation and collection,
including those of the Property, in its own name or in the name of Trustor. Beneficiary's
collection and application of Rents shall not cure or waive any Event of Default or Notice of
Default or invalidate any act done pursuant to any notice.
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(c)Beneficiary may declare all sums secured hereby 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 ("Notice of Default"),
and:
i.Trustee shall cause the Notice of Default to be filed for record.
Beneficiary also shall deposit with Trustee this Deed of Trust, the Note and all documents
evidencing expenditures secured hereby.
ii.After the lapse of time then required by law following the
recordation of a Notice of Default, and notice of sale ("Notice of Sale") having been given as
then required by law, Trustee without demand on Trustor may sell the Property at the time
and place fixed in the Notice of Sale either as a whole or in separate parcels in any order 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 the time and place of sale and from time to time thereafter may postpone the
sale by public announcement at the time fixed by the preceding postponement. Trustee shall
deliver to any purchaser a trustee's deed conveying the property so sold, but without any
covenant or warranty, express or implied. The recitals in the trustee's deed of any matters of
facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustor,
Trustee or Beneficiary, may purchase at the sale.
iii.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: (A) all sums expended under the terms of this Deed of Trust
not then repaid, with accrued interest at the highest rate allowed by law in effect at the date
hereof; (B) all other sums then secured hereby; and (C) the remainder, if any, to the person or
persons legally entitled thereto.
8.Notice of Default to Trustor. The undersigned Trustor requests that a copy of
any Notice of Default and of any Notice of Sale hereunder be mailed to it at its address set
forth above or any succeeding address given by notice in accordance with the Agreement,
with a copy to the Limited Partner (as such term is defined in Trustor’s [Amended and
Restated Limited Partnership Agreement (the “Partnership Agreement”)] at the following
address or to such other address as the Limited Partner may designate by notice to
Beneficiary:
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
Attention: ____________________
8
50242466.1
9.Limited Partner Cure Rights. Notwithstanding anything to the contrary contained
in the Note or this Deed of Trust (collectively, the “Loan Documents”), any cure of any
default made or tendered hereunder by the Limited Partner shall be deemed to be a cure by
Trustor and shall be accepted or rejected on the same basis as if made or tendered by Trustor.
[signature page follows]
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50242466.1
IN WITNESS WHEREOF, the undersigned parties have hereunto affixed their
signatures as of the date first above written.
TRUSTOR:
UPH BUTTERFLY GARDENS, LP
a California limited partnership
By:______________________________
Name:
Title:
[ALL SIGNATURES MUST BE NOTARIZED]
50242466.1
A Notary public or other officer completing this certificate verifies only the identity of
the individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
) SS.
COUNTY OF ________________ )
On , before me, , a Notary
Public in and for said State, personally appeared, ,
who 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(ies) upon behalf of which the person(s) acted, executed
the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public [SEAL]
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50242466.1
EXHIBIT A
Legal Description of the Land
(attached)
A - 2
50242466.1
Legal Description