HomeMy WebLinkAboutMINUTES - 08102010 - C.73RECOMMENDATION(S):
AUTHORIZE the Director of Conservation & Development, or designee to execute legal
documents between the County of Contra Costa, and Riverhouse Associates to restructure a
Community Development Block Grant loan of $625,998.
FISCAL IMPACT:
No General Fund impact. Community Development Block Grant (CDBG) funds are
provided to the County on a formula allocation basis through the U.S. Department of
Housing and Urban Development (HUD). CFDA# 14.218
BACKGROUND:
In 1991, the County provided $303,090 in CDBG funds to Riverhouse Associates, a
California Limited Partnership, for the acquisition and rehabilitation of the Riverhouse
Apartments in Martinez. These funds were provided in two parts: one loan for $53,090 and
a second loan for $250,000. The $53,090 loan had an interest rate of 3 percent and was due
August 16, 2006. The $250,000 loan had an interest rate of 4.5 percent and was due August
16, 2007. No payments of principal or interest have been made on either loan due to the
restructuring of the plan of finance for the
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 08/10/2010 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I
Supervisor
Gayle B. Uilkema, District II
Supervisor
Mary N. Piepho, District III
Supervisor
Susan A. Bonilla, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Kara Douglas
335-7223
I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board
of Supervisors on the date shown.
ATTESTED: August 10, 2010
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: June McHuen, Deputy
cc:
C.73
To:Board of Supervisors
From:Catherine Kutsuris, Conservation & Development Director
Date:August 10, 2010
Contra
Costa
County
Subject:Riverhouse Associates Community Development Block Grant Loan
BACKGROUND: (CONT'D)
project described below. The total amount of principal and interest currently due on the
loans is $625,998.
In 2007, the repayment dates were revised to December 31, 2008 to allow adequate time
for Eden Housing, Inc. (the general partner) to purchase the limited partner’s interest. The
County extended the loans again in 2009 with a due date of December 31, 2009. Eden
has successfully acquired the limited partner’s interest and is now requesting a
permanent restructuring of the loans. Riverhouse Associates will continue to operate
Riverhouse Apartments as affordable housing and will provide a deeper level of
affordability.
Riverhouse Associates will provide 7 units that are affordable to extremely low income
households, 33 units affordable to very-low income households, and 35 units affordable
to low income households. Under the previous agreements, there were no units reserved
for extremely-low income households. Thirty eight units were reserved for very-low
income households and 37 units were reserved for low income households.
County staff has prepared new loan documents, which are in conformance with our
current policies and programs. The new loan terms include the following:
• New loan amount of $625,998, which is the original principal amounts and accrued
interest through December 2008
• Zero interest
• Payments will be made annually from residual receipts
• The loan is due August 31, 2041.
County Counsel has approved the attached legal documents as to form.
CONSEQUENCE OF NEGATIVE ACTION:
CHILDREN'S IMPACT STATEMENT:
ATTACHMENTS
Riverhouse CDBG Loan
Riverhouse CDBG Regulatory Agreement
Riverhouse CDBG Promissory Note
Riverhouse CDBG Deed of Trust
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Contra Costa County
Department of Conversation and Development
2530 Arnold Drive, Suite 190
Martinez, CA 94553
Attention: Deputy Director - Redevelopment
No fee for recording pursuant to
Government Code Section 27383
_________________________________________________________________
DEED OF TRUST WITH ASSIGNMENT OF RENTS,
SECURITY AGREEMENT, AND FIXTURE FILING
(Riverhouse CDBG Loan)
THIS DEED OF TRUST WITH ASSIGNMENT OF RENTS, SECURITY
AGREEMENT AND FIXTURE FILING INCLUDING THE NON-BORROWER TRUSTOR
RIDER TO DEED OF TRUST ("Deed of Trust") is made as of this 11th day of August, 2010, by
and among RIVERHOUSE ASSOCIATES, a California Limited Partnership ("Borrower Trustor"),
EDEN HOUSING, INC., a California nonprofit public benefit corporation ("Non-Borrower Trustor")
(Collectively, Borrower Trustor and Non-Borrower Trustor shall be referred to as Trustor"),
NORTH AMERICAN TITLE COMPANY, a California corporation ("Trustee"), and the COUNTY OF
CONTRA COSTA, a political subdivision of the State of California ("Beneficiary").
FOR GOOD AND VALUABLE CONSIDERATION, including the indebtedness herein
recited and the trust herein created, the receipt of which is hereby acknowledged, Trustor hereby
irrevocably grants, transfers, conveys and assigns to Trustee, IN TRUST, WITH POWER OF
SALE, for the benefit and security of Beneficiary, under and subject to the terms and conditions
hereinafter set forth, Borrower Trustor's leasehold interest and Non-Borrower Trustor's fee
interest in the property located in the County of Contra Costa, State of California, that is
described in the attached Exhibit A, incorporated herein by this reference (the "Property").
TOGETHER WITH all interest, estates or other claims, both in law and in equity which
Trustor now has or may hereafter acquire in the Property and the rents;
TOGETHER WITH all easements, rights-of-way and rights used in connection therewith
or as a means of access thereto, including (without limiting the generality of the foregoing) all
tenements, hereditaments and appurtenances thereof and thereto;
TOGETHER WITH any and all buildings and improvements of every kind and
description now or hereafter erected thereon, and all property of the Trustor now or hereafter
affixed to or placed upon the Property;
TOGETHER WITH all building materials and equipment now or hereafter delivered to
said property and intended to be installed therein;
863\81\765518.6 2
TOGETHER WITH all right, title and interest of Trustor, now owned or hereafter
acquired, in and to any land lying within the right-of-way of any street, open or proposed,
adjoining the Property, and any and all sidewalks, alleys and strips and areas of land adjacent to
or used in connection with the Property;
TOGETHER WITH all estate, interest, right, title, other claim or demand, of every
nature, in and to such property, including the Property, both in law and in equity, including, but
not limited to, all deposits made with or other security given by Trustor to utility companies, the
proceeds from any or all of such property, including the Property, claims or demands with
respect to the proceeds of insurance in effect with respect thereto, which Trustor now has or may
hereafter acquire, any and all awards made for the taking by eminent domain or by any
proceeding or purchase in lieu thereof of the whole or any part of such property, including
without limitation, any awards resulting from a change of grade of streets and awards for
severance damages to the extent Beneficiary has an interest in such awards for taking as
provided in Paragraph 4.1 herein;
TOGETHER WITH all of Trustor's interest in all articles of personal property or fixtures
now or hereafter attached to or used in and about the building or buildings now erected or
hereafter to be erected on the Property which are necessary to the complete and comfortable use
and occupancy of such building or buildings for the purposes for which they were or are to be
erected, including all other goods and chattels and personal property as are ever used or
furnished in operating a building, or the activities conducted therein, similar to the one herein
described and referred to, and all renewals or replacements thereof or articles in substitution
therefor, whether or not the same are, or will be, attached to said building or buildings in any
manner; and
TOGETHER WITH all of Trustor's interest in all building materials, fixtures, equipment,
work in process and other personal property to be incorporated into the Property; all goods,
materials, supplies, fixtures, equipment, machinery, furniture and furnishings, signs and other
personal property now or hereafter appropriated for use on the Property, whether stored on the
Property or elsewhere, and used or to be used in connection with the Property; all rents, issues
and profits, and all inventory, accounts, accounts receivable, contract rights, general intangibles,
chattel paper, instruments, documents, notes drafts, letters of credit, insurance policies, insurance
and condemnation awards and proceeds, trade names, trademarks and service marks arising from
or related to the Property and any business conducted thereon by Trustor; all replacements,
additions, accessions and proceeds; and all books, records and files relating to any of the
foregoing.
All of the foregoing, together with the Property, is herein referred to as the "Security."
To have and to hold the Security together with acquittances to the Trustee, its successors and
assigns forever.
FOR THE PURPOSE OF SECURING THE FOLLOWING OBLIGATIONS (the
"Secured Obligations"):
A. Payment to Beneficiary of all sums at any time owing under or in connection with
the Note (defined in Section 1.4 below) until paid or cancelled and any other amounts owing
under the Loan Documents (defined in Section 1.3 below). Said principal and other payments
863\81\765518.6 3
are due and payable as provided in the Note or other Loan Documents, as applicable. The Note
and all its terms are incorporated herein by reference, and this conveyance secures any and all
extensions thereof, however evidenced;
B. Payment of any sums advanced by Beneficiary to protect the Security pursuant to
the terms and provisions of this Deed of Trust following a breach of Trustor's obligation to
advance said sums and the expiration of any applicable cure period, with interest thereon as
provided herein;
C. Performance of every obligation, covenant or agreement of Trustor contained
herein and in the Loan Documents; and
D. All modifications, extensions and renewals of any of the Secured Obligations
(including without limitation, (i) modifications, extensions or renewals at a different rate of
interest, or (ii) deferrals or accelerations of the required principal payment dates or interest
payment dates or both, in whole or in part), however evidenced, whether or not any such
modification, extension or renewal is evidenced by a new or additional promissory note or notes.
AND TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR
COVENANTS AND AGREES:
ARTICLE 1
DEFINITIONS
In addition to the terms defined elsewhere in this Deed of Trust, the following terms have
the following meanings in this Deed of Trust:
Section 1.1 The term "Ground Lease" means that certain Ground Lease by and
between Non-Borrower Trustor, as fee owner of the Property, and Borrower Trustor, as ground
lessee of the Property, dated as of August 14, 1991, as amended. A memorandum of the Ground
Lease was recorded on August 14, 1991, in the Official Records of Contra Costa County.
Section 1.2 The term "Loan Agreement" means that certain CDBG Loan Agreement
between Borrower Trustor and Beneficiary, of even date herewith, providing for the Beneficiary
to loan to Trustor Six Hundred Twenty-Five Thousand Nine Hundred Ninety-Eight Dollars
($625,998) for the acquisition of the Property.
Section 1.3 The term "Loan Documents" means this Deed of Trust, the Note, the Loan
Agreement, the Regulatory Agreement, and any other debt, loan or security instruments between
Trustor and the Beneficiary relating to the Property.
Section 1.4 The term "Note" means the promissory note in the principal amount of Six
Hundred Twenty-Five Thousand Nine Hundred Ninety-Eight Dollars ($625,998), of even date
herewith, executed by Borrower Trustor in favor of the Beneficiary, as it may be amended or
restated, the payment of which is secured by this Deed of Trust. (A copy of the Note is on file
with the Beneficiary and terms and provisions of the Note are incorporated herein by reference.)
863\81\765518.6 4
Section 1.5 The term "Principal" means the amount required to be paid under the
Note.
Section 1.6 The term "Regulatory Agreement" means the regulatory agreement of
even date herewith by and between the Beneficiary and the Borrower Trustor.
ARTICLE 2
MAINTENANCE AND MODIFICATION OF
THE PROPERTY AND SECURITY
Section 2.1 Maintenance and Modification of the Property by Trustor.
The Trustor agrees that at all times prior to full payment and performance of the Secured
Obligations, the Trustor will, at the Trustor's own expense, maintain, preserve and keep the
Security or cause the Security to be maintained and preserved in good condition. The Trustor
will from time to time make or cause to be made all repairs, replacements and renewals deemed
proper and necessary by it. The Beneficiary has no responsibility in any of these matters or for
the making of improvements or additions to the Security.
Trustor agrees to pay fully and discharge (or cause to be paid fully and discharged) all
claims for labor done and for material and services furnished in connection with the Security,
diligently to file or procure the filing of a valid notice of cessation upon the event of a cessation
of labor on the work or construction on the Security for a continuous period of thirty (30) days or
more, and to take all other reasonable steps to forestall the assertion of claims of lien against the
Security or any part thereof. Trustor irrevocably appoints, designates and authorizes Beneficiary
as its agent (said agency being coupled with an interest) with the authority, but without any
obligation, to file for record any notices of completion or cessation of labor or any other notice
that Beneficiary deems necessary or desirable to protect its interest in and to the Security or the
Loan Documents; provided, however, that Beneficiary exercises its rights as agent of Trustor
only in the event that Trustor fails to take, or fails to diligently continue to take, those actions as
hereinbefore provided.
Upon demand by Beneficiary, Trustor shall make or cause to be made such demands or
claims as Beneficiary specifies upon laborers, materialmen, subcontractors or other persons who
have furnished or claim to have furnished labor, services or materials in connection with the
Security. Nothing herein contained requires Trustor to pay any claims for labor, materials or
services which Trustor in good faith disputes and is diligently contesting provided that Trustor
shall, within thirty (30) days after the filing of any claim of lien, record in the Office of the
Recorder of Contra Costa County, a surety bond in an amount 1 and 1/2 times the amount of
such claim item to protect against a claim of lien.
Section 2.2 Granting of Easements.
Trustor may not grant easements, licenses, rights-of-way or other rights or privileges in
the nature of easements with respect to any property or rights included in the Security except
those required or desirable for installation and maintenance of public utilities including, without
863\81\765518.6 5
limitation, water, gas, electricity, sewer, telephone and telegraph, or those otherwise required by
law, and as approved, in writing, by Beneficiary.
Section 2.3 Assignment of Rents.
As part of the consideration for the indebtedness evidenced by the Note, Trustor hereby
absolutely and unconditionally assigns and transfers to Beneficiary all the rents and revenues of
the Property including those now due, past due, or to become due by virtue of any lease or other
agreement for the occupancy or use of all or any part of the Property, regardless of to whom the
rents and revenues of the Property are payable. Trustor hereby authorizes Beneficiary or
Beneficiary's agents to collect the aforesaid rents and revenues and hereby directs each tenant of
the Property to pay such rents to Beneficiary or Beneficiary's agents; provided, however, that
prior to written notice given by Beneficiary to Trustor of the breach by Trustor of any covenant
or agreement of Trustor in the Loan Documents, Trustor shall collect and receive all rents and
revenues of the Property as trustee for the benefit of Beneficiary and Trustor to apply the rents
and revenues so collected to the Secured Obligations with the balance, so long as no such breach
has occurred, to the account of Trustor, it being intended by Trustor and Beneficiary that this
assignment of rents constitutes an absolute assignment and not an assignment for additional
security only. Upon delivery of written notice by Beneficiary to Trustor of the breach by Trustor
of any covenant or agreement of Trustor in the Loan Documents, and without the necessity of
Beneficiary entering upon and taking and maintaining full control of the Property in person, by
agent or by a court-appointed receiver, Beneficiary shall immediately be entitled to possession of
all rents and revenues of the Property as specified in this Section 2.3 as the same becomes due
and payable, including but not limited to, rents then due and unpaid, and all such rents shall
immediately upon delivery of such notice be held by Trustor as trustee for the benefit of
Beneficiary only; provided, however, that the written notice by Beneficiary to Trustor of the
breach by Trustor must contain a statement that Beneficiary exercises its rights to such rents.
Trustor agrees that commencing upon delivery of such written notice of Trustor's breach by
Beneficiary to Trustor, each tenant of the Property shall make such rents payable to and pay such
rents to Beneficiary or Beneficiary's agents on Beneficiary's written demand to each tenant
therefor, delivered to each tenant personally, by mail or by delivering such demand to each rental
unit, without any liability on the part of said tenant to inquire further as to the existence of a
default by Trustor.
Trustor hereby covenants that Trustor has not executed any prior assignment of said
rents, that Trustor has not performed, and will not perform, any acts or has not executed and will
not execute, any instrument which would prevent Beneficiary from exercising its rights under
this Section 2.3, and that at the time of execution of this Deed of Trust, there has been no
anticipation or prepayment of any of the rents of the Property for more than two (2) months prior
to the due dates of such rents. Trustor covenants that Trustor will not hereafter collect or accept
payment of any rents of the Property more than two (2) months prior to the due dates of such
rents. Trustor further covenant that Trustor will execute and deliver to Beneficiary such further
assignments of rents and revenues of the Property as Beneficiary may from time to time request.
Upon Trustor's breach of any covenant or agreement of Trustor in the Loan Documents,
Beneficiary may in person, by agent or by a court-appointed receiver, regardless of the adequacy
of Beneficiary's security, enter upon and take and maintain full control of the Property in order to
863\81\765518.6 6
perform all acts necessary and appropriate for the operation and maintenance thereof including,
but not limited to, the execution, cancellation or modification of leases, the collection of all rents
and revenues of the Property, the making of repairs to the Property and the execution or
termination of contracts providing for the management or maintenance of the Property, all on
such terms as are deemed best to protect the security of this Deed of Trust. In the event
Beneficiary elects to seek the appointment of a receiver for the Property upon Trustor's breach of
any covenant or agreement of Trustor in this Deed of Trust, Trustor hereby expressly consents to
the appointment of such receiver. Beneficiary or the receiver will be entitled to receive a
reasonable fee for so managing the Property.
All rents and revenues collected subsequent to delivery of written notice by Beneficiary
to Trustor of the breach by Trustor of any covenant or agreement of Trustor in the Loan
Documents are to be applied first to the costs, if any, of taking control of and managing the
Property and collecting the rents, including, but not limited to, attorney's fees, receiver's fees,
premiums on receiver's bonds, costs of repairs to the Property, premiums on insurance policies,
taxes, assessments and other charges on the Property, and the costs of discharging any obligation
or liability of Trustor as lessor or landlord of the Property and then to the sums secured by this
deed of Trust. Beneficiary or the receiver will have access to the books and records used in the
operation and maintenance of the Property and will be liable to account only for those rents
actually received. Beneficiary is not liable to Trustor, anyone claiming under or through Trustor
or anyone having an interest in the Property by reason of anything done or left undone by
Beneficiary under this Section 2.3.
If the rents of the Property are not sufficient to meet the costs, if any, of taking control of
and managing the Property and collecting the rents, any funds expended by Beneficiary for such
purposes will become part of the Secured Obligations pursuant to Section 3.3 hereof. Unless
Beneficiary and Trustor agree in writing to other terms of payment, such amounts are payable by
Trustor to Beneficiary upon notice from Beneficiary to Trustor requesting payment thereof and
will bear interest from the date of disbursement at the rate stated in Section 3.3.
If the Beneficiary or the receiver enters upon and takes and maintains control of the
Property, neither that act nor any application of rents as provided herein will cure or waive any
default under this Deed of Trust or invalidate any other right or remedy available to Beneficiary
under applicable law or under this Deed of Trust. This assignment of rents of the Property will
terminate at such time as this Deed of Trust ceases to secure the Secured Obligations.
Section 2.4 Leasehold Provisions.
(a) Borrower Trustor shall pay the rent set forth in the Ground Lease as the same
becomes due and payable.
(b) Borrower Trustor shall promptly perform and observe all of the covenants,
agreements, obligations and conditions required to be performed and observed by the Borrower
Trustor under the Ground Lease, and do all things necessary to preserve and keep unimpaired its
rights thereunder.
863\81\765518.6 7
(c) Borrower Trustor shall promptly notify Beneficiary in writing of the
commencement of a proceeding under the federal bankruptcy laws by or against either Trustor.
(d) If any of the indebtedness secured hereby remains unpaid at the time when notice
may be given by the Borrower Trustor under the Ground Lease of the exercise of any right to
renew or extend the term of the Ground Lease, Borrower Trustor shall promptly give notice to
the Non-Borrower Trustor of the exercise of such right of extension or renewal.
(e) In case any proceeds of insurance upon the Property or any part thereof are
deposited with any person other than Beneficiary pursuant to the requirements of the Ground
Lease, Borrower Trustor shall promptly notify Beneficiary in writing of the name and address of
the person with whom such proceeds have been deposited and the amount so deposited.
(f) Borrower Trustor shall promptly notify Beneficiary in writing of any request
made by either party to the Ground Lease to the other party thereto for arbitration or appraisal
proceedings pursuant to the Ground Lease, and of the institution of any arbitration or appraisal
proceedings and promptly deliver to Beneficiary a copy of the determination of the arbitrators or
appraisers in each such proceeding.
(g) Trustor will not surrender the Ground Lease or Trustor's estates and interests
therein, nor terminate or cancel the Ground Lease; and will not, without prior written consent of
Beneficiary, modify, change, supplement, alter or amend the Ground Lease in any manner
whatsoever. Without limiting the generality of the foregoing, Trustor will not reject the Ground
Lease pursuant to 11 U.S.C. Section 365(a) or any successor law, or allow the Ground Lease to
be deemed rejected by inaction and lapse of time, and will not elect to treat the Ground Lease as
terminated by the Non-Borrower Trustor's rejection of the Ground Lease pursuant to 11 U.S.C.
Section 365(h)(1) or any successor law, and as further security for the repayment of the
indebtedness secured hereby and for the performance of the covenants, agreements, obligations
and conditions herein and in the Ground Lease contained, Trustor assigns to Beneficiary all
rights, privileges and prerogatives of Trustor and either Trustor's bankruptcy trustee to deal with
the Ground Lease, which right may arise as a result of the commencement of a proceeding under
the federal bankruptcy laws by or against Trustor under the Ground Lease, including, without
limitation, the right to assume or reject, or to compel the assumption or rejection of the Ground
Lease pursuant to 11 U.S.C. Section 365(a) or any successor law, the right to seek and obtain
extensions of time to assume or reject the Ground Lease, the right to elect whether to treat the
Ground Lease as terminated by the Non-Borrower Trustor's rejection of the Ground Lease or to
remain in possession of the leasehold estate and offset damages pursuant to 11 U.S.C. Section
365(h)(1) or any successor law; and any exercise of such rights, privileges or prerogatives by
Trustor's bankruptcy trustee without the prior written consent thereto by Beneficiary shall be
void and of no force and effect. No release or forbearance of any of Borrower Trustor's
obligations as tenant under the Ground Lease, whether pursuant to the Ground Lease or
otherwise, shall release Trustor from any of its obligations under this Deed of Trust, including,
but not limited to, Borrower Trustor's obligations with respect to the payment of rent as provided
for in the Ground Lease and the observance and performance of all of the covenants, agreements,
obligations and conditions contained in the Ground Lease to be observed and performed by the
Borrower Trustor thereunder. Unless Beneficiary expressly consents in writing, the fee title to
the property demised by the Ground Lease and the leasehold estate thereunder will not merge,
863\81\765518.6 8
but will always remain separate and distinct, notwithstanding the union of such estates either in
the Non-Borrower Trustor or in a third party by purchase or otherwise.
ARTICLE 3
TAXES AND INSURANCE; ADVANCES
Section 3.1 Taxes, Other Governmental Charges and Utility Charges.
Trustor shall pay, or cause to be paid, prior to the date of delinquency, all taxes,
assessments, charges and levies imposed by any public authority or utility company that are or
may become a lien affecting the Security or any part thereof; provided, however, that Trustor is
not required to pay and discharge any such tax, assessment, charge or levy so long as (a) the
legality thereof is promptly and actively contested in good faith and by appropriate proceedings,
and (b) Trustor maintains reserves adequate to pay any liabilities contested pursuant to this
Section 3.1. With respect to taxes, special assessments or other similar governmental charges,
Trustor shall pay such amount in full prior to the attachment of any lien therefor on any part of
the Security; provided, however, if such taxes, assessments or charges can be paid in
installments, Trustor may pay in such installments. Except as provided in clause (b) of the first
sentence of this paragraph, the provisions of this Section 3.1 must not be construed to require
that Trustor maintain a reserve account, escrow account, impound account or other similar
account for the payment of future taxes, assessments, charges and levies.
In the event that Trustor fails to pay any of the items required by this Section to be paid
by Trustor, Beneficiary may (but is under no obligation to) pay the same, after the Beneficiary
has notified the Trustor of such failure to pay and the Trustor fails to fully pay such items within
seven (7) business days after receipt of such notice. Any amount so advanced therefor by
Beneficiary, together with interest thereon from the date of such advance at the maximum rate
permitted by law, will become part of the Secured Obligations secured hereby, and Trustor
agrees to pay all such amounts.
Section 3.2 Provisions Respecting Insurance.
Trustor agrees to provide insurance conforming in all respects to that required under the
Loan Documents at all times until all amounts secured by this Deed of Trust have been paid, all
Secured Obligations secured hereunder have been fulfilled, and this Deed of Trust has been
reconveyed.
All such insurance policies and coverages are to be maintained at Trustor's sole cost and
expense. Certificates of insurance for all of the above insurance policies, showing the same to be
in full force and effect, are to be delivered to the Beneficiary upon demand therefor at any time
prior to Trustor's satisfaction of the Secured Obligations.
Section 3.3 Advances.
In the event the Trustor fails to maintain the full insurance coverage required by this
Deed of Trust or fails to keep the Security in accordance with the Loan Documents, the
Beneficiary, after at least seven (7) days prior notice to Trustor, may (but is under no obligation
863\81\765518.6 9
to) (i) take out the required policies of insurance and pay the premiums on the same, and (ii)
make any repairs or replacements that are necessary and provide for payment thereof. All
amounts so advanced by the Beneficiary will become part of the Secured Obligations (together
with interest as set forth below) and will be secured hereby, which amounts the Trustor agrees to
pay on the demand of the Beneficiary, and if not so paid, will bear interest from the date of the
advance at the lesser of ten percent (10%) per annum or the maximum rate permitted by law.
ARTICLE 4
DAMAGE, DESTRUCTION OR CONDEMNATION
Section 4.1 Awards and Damages.
All judgments, awards of damages, settlements and compensation made in connection
with or in lieu of (1) the taking of all or any part of or any interest in the Property by or under
assertion of the power of eminent domain, (2) any damage to or destruction of the Property or
any part thereof by insured casualty, and (3) any other injury or damage to all or any part of the
Property (collectively, the "Funds") are hereby assigned to and are to be paid to the Beneficiary
by a check made payable to the Beneficiary. The Beneficiary is authorized and empowered (but
not required) to collect and receive any Funds and is authorized to apply them in whole or in part
to any indebtedness or obligation secured hereby, in such order and manner as the Beneficiary
determines at its sole option. The Beneficiary is entitled to settle and adjust all claims under
insurance policies provided under this Deed of Trust and may deduct and retain from the
proceeds of such insurance the amount of all expenses incurred by it in connection with any such
settlement or adjustment. All or any part of the amounts so collected and recovered by the
Beneficiary may be released to Borrower Trustor upon such conditions as the Beneficiary may
impose for its disposition. Application of all or any part of the Funds collected and received by
the Beneficiary or the release thereof will not cure or waive any default under this Deed of Trust.
The rights of the Beneficiary under this Section 4.1 are subject to the rights of any senior
mortgage lender. The Beneficiary shall release the Funds to Borrower Trustor to be used to
reconstruct the improvements on the Property provided that Beneficiary reasonably determines
that Borrower Trustor (taking into account the Funds) has sufficient funds to rebuild the
improvements in substantially the form that existed prior to the casualty or condemnation.
ARTICLE 5
AGREEMENTS AFFECTING THE PROPERTY; FURTHER
ASSURANCES; PAYMENT OF PRINCIPAL AND INTEREST
Section 5.1 Other Agreements Affecting Property.
The Borrower Trustor shall duly and punctually perform all terms, covenants, conditions
and agreements binding upon it under the Loan Documents and any other agreement of any
nature whatsoever now or hereafter involving or affecting the Security or any part thereof.
863\81\765518.6 10
Section 5.2 Agreement to Pay Attorneys' Fees and Expenses.
In the event of any Event of Default (as defined in Section 7.1) hereunder, and if the
Beneficiary employs attorneys or incurs other expenses for the collection of amounts due
hereunder or the enforcement of performance or observance of an obligation or agreement on the
part of the Trustor in this Deed of Trust, the Borrower Trustor agrees that it will, on demand
therefor, pay to the Beneficiary the reasonable fees of such attorneys and such other reasonable
expenses so incurred by the Beneficiary. Any such amounts paid by the Beneficiary will be
added to the Secured Obligations, and will bear interest from the date such expenses are incurred
at the lesser of ten percent (10%) per annum or the maximum rate permitted by law.
Section 5.3 Payment of the Principal.
The Borrower Trustor shall pay to the Beneficiary the Principal and any other payments
as set forth in the Note in the amounts and by the times set out therein.
Section 5.4 Personal Property.
To the maximum extent permitted by law, the personal property subject to this Deed of
Trust is deemed to be fixtures and part of the real property and this Deed of Trust constitutes a
fixtures filing under the California Commercial Code. As to any personal property not deemed
or permitted to be fixtures, this Deed of Trust constitutes a security agreement under the
California Commercial Code.
Section 5.5 Financing Statement.
The Borrower Trustor shall execute and deliver to the Beneficiary such financing
statements pursuant to the appropriate statutes, and any other documents or instruments as are
required to convey to the Beneficiary a valid perfected security interest in the Security. The
Borrower Trustor shall perform all acts that the Beneficiary reasonably requests so as to enable
the Beneficiary to maintain a valid perfected security interest in the Security in order to secure
the payment of the Note in accordance with its terms. The Beneficiary is authorized to file a
copy of any such financing statement in any jurisdiction(s) as it deems appropriate from time to
time in order to protect the security interest established pursuant to this instrument.
Section 5.6 Operation of the Security.
The Borrower Trustor shall operate the Security (and, in case of a transfer of a portion of
the Security subject to this Deed of Trust, the transferee shall operate such portion of the
Security) in full compliance with the Loan Documents.
Section 5.7 Inspection of the Security.
At any and all reasonable times upon seventy-two (72) hours' notice, the Beneficiary and
its duly authorized agents, attorneys, experts, engineers, accountants and representatives, may
inspect the Security, without payment of charges or fees.
863\81\765518.6 11
Section 5.8 Nondiscrimination.
The Trustor herein covenants by and for itself, its heirs, executors, administrators, and
assigns, and all persons claiming under or through them, that there will be no discrimination
against or segregation of, any person or group of persons on account of race, color, creed,
religion, age, sex, sexual orientation, marital status, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the Security, nor will the Trustor itself
or any person claiming under or through it establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy
of tenants, lessees, subtenants, sublessees or vendees in the Security. The foregoing covenants
will run with the land.
ARTICLE 6
HAZARDOUS WASTE
Trustor shall keep and maintain the Property in compliance with, and shall not cause or
permit the Property to be in violation of any federal, state or local laws, ordinances or regulations
relating to industrial hygiene or to the environmental conditions on, under or about the Property
including, but not limited to, soil and ground water conditions. Trustor shall not use, generate,
manufacture, store or dispose of on, under, or about the Property or transport to or from the
Property any flammable explosives, radioactive materials, hazardous wastes, toxic substances or
related materials, including without limitation, any substances defined as or included in the
definition of "hazardous substances," hazardous wastes," "hazardous materials," or "toxic
substances" under any applicable federal or state laws or regulations (collectively referred to
hereinafter as "Hazardous Materials") except such of the foregoing as may be customarily used
in construction or operation of a multi-family residential development.
Trustor shall immediately advise Beneficiary in writing if at any time it receives written
notice of (i) any and all enforcement, cleanup, removal or other governmental or regulatory
actions instituted, completed or threatened against Trustor or the Property pursuant to any
applicable federal, state or local laws, ordinances, or regulations relating to any Hazardous
Materials, ("Hazardous Materials Law"); (ii) all claims made or threatened by any third party
against Trustor or the Property relating to damage, contribution, cost recovery compensation,
loss or injury resulting from any Hazardous Materials (the matters set forth in clauses (i) and (ii)
above are hereinafter referred to as "Hazardous Materials Claims"); and (iii) Trustor's discovery
of any occurrence or condition on any real property adjoining or in the vicinity of the Property
that could cause the Property or any part thereof to be classified as "border-zone property" (as
defined in California Health and Safety Code Section 25117.4) under the provision of California
Health and Safety Code, Sections 25220 et seq., or any regulation adopted in accordance
therewith, or to be otherwise subject to any restrictions on the ownership, occupancy,
transferability or use of the Property under any Hazardous Materials Law.
Beneficiary has the right to join and participate in, as a party if it so elects, any legal
proceedings or actions initiated in connection with any Hazardous Materials Claims and to have
its reasonable attorneys' fees in connection therewith paid by Trustor. Trustor shall indemnify
and hold harmless Beneficiary and its boardmembers, supervisors, directors, officers, employees,
863\81\765518.6 12
agents, successors and assigns from and against any loss, damage, cost, expense or liability
directly or indirectly arising out of or attributable to the use, generation, storage, release,
threatened release, discharge, disposal, or presence of Hazardous Materials on, under, or about
the Property including without limitation: (a) all foreseeable consequential damages; (b) the
costs of any required or necessary repair, cleanup or detoxification of the Property and the
preparation and implementation of any closure, remedial or other required plans; and (c) all
reasonable costs and expenses incurred by Beneficiary in connection with clauses (a) and (b),
including but not limited to reasonable attorneys' fees and consultant's fees. This
indemnification applies whether or not any government agency has issued a cleanup order.
Losses, claims, costs, suits, liability, and expenses covered by this indemnification provision
include, but are not limited to: (1) losses attributable to diminution in the value of the Property;
(2) loss or restriction of use of rentable space on the Property; (3) adverse effect on the
marketing of any rental space on the Property; and (4) penalties and fines levied by, and remedial
or enforcement actions of any kind issued by any regulatory agency (including but not limited to
the costs of any required testing, remediation, repair, removal, cleanup or detoxification of the
Property and surrounding properties).
Without Beneficiary's prior written consent, which may not be unreasonably withheld,
Trustor may not take any remedial action in response to the presence of any Hazardous Materials
on, under or about the Property, nor enter into any settlement agreement, consent decree, or other
compromise in respect to any Hazardous Material Claims, which remedial action, settlement,
consent decree or compromise might, in Beneficiary's reasonable judgment, impairs the value of
the Beneficiary's security hereunder; provided, however, that Beneficiary's prior consent is not
necessary in the event that the presence of Hazardous Materials on, under, or about the Property
either poses an immediate threat to the health, safety or welfare of any individual or is of such a
nature that an immediate remedial response is necessary and it is not reasonably possible to
obtain Beneficiary's consent before taking such action, provided that in such event Trustor
notifies Beneficiary as soon as practicable of any action so taken. Beneficiary agrees not to
withhold its consent, where such consent is required hereunder, if (i) a particular remedial action
is ordered by a court of competent jurisdiction, (ii) Trustor will or may be subjected to civil or
criminal sanctions or penalties if it fails to take a required action; (iii) Trustor establishes to the
reasonable satisfaction of Beneficiary that there is no reasonable alternative to such remedial
action which would result in less impairment of Beneficiary's security hereunder; or (iv) the
action has been agreed to by Beneficiary.
The Trustor hereby acknowledges and agrees that (i) this Article is intended as the
Beneficiary's written request for information (and the Trustor's response) concerning the
environmental condition of the Property as required by California Code of Civil Procedure
Section 726.5, and (ii) each representation and warranty in this Deed of Trust or any of the other
Loan Documents (together with any indemnity applicable to a breach of any such representation
and warranty) with respect to the environmental condition of the property is intended by the
Beneficiary and the Trustor to be an "environmental provision" for purposes of California Code
of Civil Procedure Section 736.
In the event that any portion of the Property is determined to be "environmentally
impaired" (as that term is defined in California Code of Civil Procedure Section 726.5(e)(3)) or
to be an "affected parcel" (as that term is defined in California Code of Civil Procedure Section
863\81\765518.6 13
726.5(e)(1)), then, without otherwise limiting or in any way affecting the Beneficiary's or the
Trustee's rights and remedies under this Deed of Trust, the Beneficiary may elect to exercise its
rights under California Code of Civil Procedure Section 726.5(a) to (1) waive its lien on such
environmentally impaired or affected portion of the Property and (2) exercise (a) the rights and
remedies of an unsecured creditor, including reduction of its claim against the Trustor to
judgment, and (b) any other rights and remedies permitted by law. For purposes of determining
the Beneficiary's right to proceed as an unsecured creditor under California Code of Civil
Procedure Section 726.5(a), the Trustor will be deemed to have willfully permitted or acquiesced
in a release or threatened release of hazardous materials, within the meaning of California Code
of Civil Procedure Section 726.5(d)(1), if the release or threatened release of hazardous materials
was knowingly or negligently caused or contributed to by any lessee, occupant, or user of any
portion of the Property and the Trustor knew or should have known of the activity by such
lessee, occupant, or user which caused or contributed to the release or threatened release. All
costs and expenses, including (but not limited to) attorneys' fees, incurred by the Beneficiary in
connection with any action commenced under this paragraph, including any action required by
California Code of Civil Procedure Section 726.5(b) to determine the degree to which the
Property is environmentally impaired, plus interest thereon at the default rate specified in the
Loan Agreement until paid, will be added to the indebtedness secured by this Deed of Trust and
will be due and payable to the Beneficiary upon its demand made at any time following the
conclusion of such action.
ARTICLE 7
EVENTS OF DEFAULT AND REMEDIES
Section 7.1 Events of Default.
The following are events of default ("Events of Default") following the expiration of any
applicable notice and cure periods: (i) failure to make any payment to be paid by Borrower
Trustor under the Loan Documents; (ii) failure to observe or perform any of Trustor's other
covenants, agreements or obligations under the Loan Documents, including, without limitation,
the provisions concerning discrimination; (iii) failure to make any payment or observe or
perform any of Trustor's other covenants, agreements, or obligations under any Secured
Obligations, which default is not cured within the time periods and in the manner provided
therein; and (iv) failure to make any payments or observe or perform any of Trustor's other
covenants, agreements or obligations under any other debt instrument or regulatory agreement
secured by the Property, which default is not cured within the time and in the manner provided
therein.
Section 7.2 Acceleration of Maturity.
If an Event of Default has occurred and is continuing, then at the option of the
Beneficiary, the amount of any payment related to the Event of Default and all unpaid Secured
Obligations are immediately due and payable, and no omission on the part of the Beneficiary to
exercise such option when entitled to do so will be construed as a waiver of such right.
863\81\765518.6 14
Section 7.3 The Beneficiary's Right to Enter and Take Possession.
If an Event of Default has occurred and is continuing, the Beneficiary may:
(a) Either in person or by agent, with or without bringing any action or
proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its
security, enter upon the Property and take possession thereof (or any part thereof) and of any of
the Security, in its own name or in the name of Trustee, and do any acts that it deems necessary
or desirable to preserve the value or marketability of the Property, or part thereof or interest
therein, increase the income therefrom or protect the security thereof. The entering upon and
taking possession of the Security will not cure or waive any Event of Default or Notice of Sale
(as defined below) hereunder or invalidate any act done in response to such Event of Default or
pursuant to such Notice of Sale, and, notwithstanding the continuance in possession of the
Security, Beneficiary will be entitled to exercise every right provided for in this Deed of Trust, or
by law upon occurrence of any Event of Default, including the right to exercise the power of
sale;
(b) Commence an action to foreclose this Deed of Trust as a mortgage,
appoint a receiver, or specifically enforce any of the covenants hereof;
(c) Deliver to Trustee a written declaration of default and demand for sale,
and a written notice of default and election to cause Trustor's interest in the Security to be sold
("Notice of Sale"), which notice Trustee or Beneficiary shall cause to be duly filed for record in
the Official Records of Contra Costa County; or
(d) Exercise all other rights and remedies provided herein, in the instruments
by which the Trustor acquires title to any Security, or in any other document or agreement now
or hereafter evidencing, creating or securing the Secured Obligations.
Section 7.4 Foreclosure By Power of Sale.
Should the Beneficiary elect to foreclose by exercise of the power of sale herein
contained, the Beneficiary shall deliver to the Trustee the Notice of Sale and shall deposit with
Trustee this Deed of Trust which is secured hereby (and the deposit of which will be deemed to
constitute evidence that the Secured Obligations are immediately due and payable), and such
receipts and evidence of any expenditures made that are additionally secured hereby as Trustee
may require.
(a) Upon receipt of the Notice of Sale from the Beneficiary, Trustee shall
cause to be recorded, published and delivered to Trustor such Notice of Sale as is then required
by law and by this Deed of Trust. Trustee shall, without demand on Trustor, after the lapse of
that amount of time as is then required by law and after recordation of such Notice of Sale as
required by law, sell the Security, at the time and place of sale set forth in the Notice of Sale,
whether as a whole or in separate lots or parcels or items, as Trustee deems expedient and in
such order as it determines, unless specified otherwise by the Trustor according to California
Civil Code Section 2924g(b), at public auction to the highest bidder, for cash in lawful money of
the United States payable at the time of sale. Trustee shall deliver to such purchaser or
purchasers thereof its good and sufficient deed or deeds conveying the property so sold, but
863\81\765518.6 15
without any covenant or warranty, express or implied. The recitals in such deed or any matters
of facts will be conclusive proof of the truthfulness thereof. Any person, including, without
limitation, Trustor, Trustee or Beneficiary, may purchase at such sale.
(b) After deducting all reasonable costs, fees and expenses of Trustee,
including costs of evidence of title in connection with such sale, Trustee shall apply the proceeds
of sale to payment of: (i) the unpaid Principal amount of the Note; (ii) all other Secured
Obligations owed to Beneficiary under the Loan Documents; (iii) all other sums then secured
hereby; and (iv) the remainder, if any, to Trustor.
(c) Trustee may postpone sale of all or any portion of the Property by public
announcement at such time and place of sale, and from time to time thereafter, and without
further notice make such sale at the time fixed by the last postponement, or may, in its discretion,
give a new Notice of Sale.
Section 7.5 Receiver.
If an Event of Default occurs and is continuing, Beneficiary, as a matter of right and
without further notice to Trustor or anyone claiming under the Security, and without regard to
the then value of the Security or the interest of Trustor therein, may apply to any court having
jurisdiction to appoint a receiver or receivers of the Security (or a part thereof), and Trustor
hereby irrevocably consents to such appointment and waives further notice of any application
therefor. Any such receiver or receivers will have all the usual powers and duties of receivers in
like or similar cases, and all the powers and duties of Beneficiary in case of entry as provided
herein, and will continue as such and exercise all such powers until the date of confirmation of
sale of the Security, unless such receivership is sooner terminated.
Section 7.6 Remedies Cumulative.
No right, power or remedy conferred upon or reserved to the Beneficiary by this Deed of
Trust is intended to be exclusive of any other right, power or remedy, but each and every such
right, power and remedy will be cumulative and concurrent and will be in addition to any other
right, power and remedy given hereunder or now or hereafter existing at law or in equity.
Section 7.7 No Waiver.
(a) No delay or omission of the Beneficiary to exercise any right, power or
remedy accruing upon any Event of Default will exhaust or impair any such right, power or
remedy, or will be construed to be a waiver of any such Event of Default or acquiescence
therein; and every right, power and remedy given by this Deed of Trust to the Beneficiary may
be exercised from time to time and as often as may be deemed expeditious by the Beneficiary.
Beneficiary's express or implied consent to breach, or waiver of, any obligation of the Trustor
hereunder will not be deemed or construed to be a consent to any subsequent breach, or further
waiver, of such obligation or of any other obligations of the Trustor hereunder. Failure on the
part of the Beneficiary to complain of any act or failure to act or to declare an Event of Default,
irrespective of how long such failure continues, will not constitute a waiver by the Beneficiary of
its right hereunder or impair any rights, power or remedies consequent on any Event of Default
by the Trustor.
863\81\765518.6 16
(b) If the Beneficiary (i) grants forbearance or an extension of time for the
payment or performance of any Secured Obligation, (ii) takes other or additional security or the
payment of any sums secured hereby, (iii) waives or does not exercise any right granted in the
Loan Documents, (iv) releases any part of the Security from the lien of this Deed of Trust, or
otherwise changes any of the terms, covenants, conditions or agreements in the Loan Documents,
(v) consents to the granting of any easement or other right affecting the Security, or (vi) makes or
consents to any agreement subordinating the lien hereof, any such act or omission will not
release, discharge, modify, change or affect the original liability under this Deed of Trust, or any
other obligation of the Trustor or any subsequent purchaser of the Security or any part thereof, or
any maker, co-signer, endorser, surety or guarantor (unless expressly released); nor does any
such act or omission preclude the Beneficiary from exercising any right, power or privilege
herein granted or intended to be granted in any Event of Default then made or of any subsequent
Event of Default, nor, except as otherwise expressly provided in an instrument or instruments
executed by the Beneficiary, will the lien of this Deed of Trust be altered thereby.
Section 7.8 Suits to Protect the Security.
The Beneficiary has power to (a) institute and maintain such suits and proceedings as it
may deem expedient to prevent any impairment of the Security and the rights of the Beneficiary
as may be unlawful or any violation of this Deed of Trust, (b) preserve or protect its interest (as
described in this Deed of Trust) in the Security, and (c) restrain the enforcement of or
compliance with any legislation or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if the enforcement for compliance with such enactment,
rule or order would impair the Security thereunder or be prejudicial to the interest of the
Beneficiary.
Section 7.9 Trustee May File Proofs of Claim.
In the case of any receivership, insolvency, bankruptcy, reorganization, arrangement,
adjustment, composition or other proceedings affecting the Trustor, its creditors or its property,
the Beneficiary, to the extent permitted by law, will be entitled to file such proofs of claim and
other documents as may be necessary or advisable in order to have the claims of the Beneficiary
allowed in such proceedings and for any additional amount that becomes due and payable by the
Trustor hereunder after such date.
Section 7.10 Waiver.
The Trustor waives presentment, demand for payment, notice of dishonor, notice of
protest and nonpayment, protest, notice of interest on interest and late charges, and diligence in
taking any action to collect any Secured Obligations or in proceedings against the Security, in
connection with the delivery, acceptance, performance, default, endorsement or guaranty of this
Deed of Trust.
863\81\765518.6 17
ARTICLE 8
MISCELLANEOUS
Section 8.1 Amendments.
This Deed of Trust cannot be waived, changed, discharged or terminated orally, but only
by an instrument in writing signed by Beneficiary and Trustor.
Section 8.2 Reconveyance by Trustee.
Upon written request of Beneficiary stating that all Secured Obligations have been paid
or forgiven, and all obligations under the Loan Documents have been performed in full, and
upon surrender of this Deed of Trust to Trustee for cancellation and retention, and upon payment
by Trustor of Trustee's reasonable fees, Trustee shall reconvey the Security to Trustor, or to the
person or persons legally entitled thereto.
Section 8.3 Notices.
If at any time after the execution of this Deed of Trust it becomes necessary or
convenient for one of the parties hereto to serve any notice, demand or communication upon the
other party, such notice, demand or communication must be in writing and is to be served
personally or by depositing the same in the registered United States mail, return receipt
requested, postage prepaid and (1) if intended for Beneficiary is to be addressed to:
County of Contra Costa
Department of Conversation and Development
2530 Arnold Drive, Suite 190
Martinez, CA 94553
Attention: Deputy Director – Redevelopment
(2) if intended for Borrower Trustor is to be addressed to:
Riverhouse Associates, a California Limited Partnership
c/o Eden Housing, Inc.
22645 Grand Street
Hayward, CA 94541
Attention: Executive Director
and (3) if intended for Non-Borrower Trustor is to be addressed to:
Eden Housing, Inc.
22645 Grand Street
Hayward, CA 94541
Attention: Executive Director
Any notice, demand or communication will be deemed given, received, made or communicated
on the date personal delivery is effected or, if mailed in the manner herein specified, on the
delivery date or date delivery is refused by the addressee, as shown on the return receipt. Either
863\81\765518.6 18
party may change its address at any time by giving written notice of such change to Beneficiary
or Trustor as the case may be, in the manner provided herein, at least ten (10) days prior to the
date such change is desired to be effective.
Section 8.4 Successors and Joint Trustors.
Where an obligation created herein is binding upon Trustor, the obligation also applies to
and binds any transferee or successors in interest. Where the terms of the Deed of Trust have the
effect of creating an obligation of the Trustor and a transferee, such obligation will be deemed to
be a joint and several obligation of the Trustor and such transferee. Where Trustor is more than
one entity or person, all obligations of Trustor will be deemed to be a joint and several obligation
of each and every entity and person comprising Trustor.
Section 8.5 Captions.
The captions or headings at the beginning of each Section hereof are for the convenience
of the parties and are not a part of this Deed of Trust.
Section 8.6 Invalidity of Certain Provisions.
Every provision of this Deed of Trust is intended to be severable. In the event any term
or provision hereof is declared to be illegal or invalid for any reason whatsoever by a court or
other body of competent jurisdiction, such illegality or invalidity will not affect the balance of
the terms and provisions hereof, which terms and provisions will remain binding and
enforceable. If the lien of this Deed of Trust is invalid or unenforceable as to any part of the
debt, or if the lien is invalid or unenforceable as to any part of the Security, the unsecured or
partially secured portion of the debt, and all payments made on the debt, whether voluntary or
under foreclosure or other enforcement action or procedure, will be considered to have been first
paid or applied to the full payment of that portion of the debt that is not secured or partially
secured by the lien of this Deed of Trust.
Section 8.7 Governing Law.
This Deed of Trust is governed the laws of the State of California.
Section 8.8 Gender and Number.
In this Deed of Trust the singular includes the plural and the masculine includes the
feminine and neuter and vice versa, if the context so requires.
Section 8.9 Deed of Trust, Mortgage.
Any reference in this Deed of Trust to a mortgage also refers to a deed of trust and any
reference to a deed of trust also refers to a mortgage.
863\81\765518.6 19
Section 8.10 Actions.
Trustor shall appear in and defend any action or proceeding purporting to affect the
Security.
Section 8.11 Substitution of Trustee.
Beneficiary may from time to time substitute a successor or successors to any Trustee
named herein or acting hereunder to execute this Trust. Upon such appointment, and without
conveyance to the successor trustee, the latter will be vested with all title, powers, and duties
conferred upon any Trustee herein named or acting hereunder. Each such appointment and
substitution is to be made by written instrument executed by Beneficiary, containing reference to
this Deed of Trust and its place of record, which, when duly recorded in the proper office of the
county or counties in which the Property is situated, will be conclusive proof of proper
appointment of the successor trustee.
Section 8.12 Statute of Limitations.
The pleading of any statute of limitations as a defense to any and all obligations secured
by this Deed of Trust is hereby waived to the full extent permissible by law.
Section 8.13 Acceptance by Trustee.
Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is
made public record as provided by law. Except as otherwise provided by law, the Trustee is not
obligated to notify any party hereto of a pending sale under this Deed of Trust or of any action or
proceeding in which Trustor, Beneficiary, or Trustee is a party unless brought by Trustee.
Section 8.14 Tax Credit Provisions.
Notwithstanding anything to the contrary contained herein or in any documents secured
by this Deed of Trust or contained in any subordination agreement, the Beneficiary
acknowledges and agrees that in the event of a foreclosure or deed-in-lieu of foreclosure
(collectively, "Foreclosure") with respect to the Security encumbered by this Deed of Trust, the
following rule contained in Section 42(h)(6)(E)(ii) of the Internal Revenue Code of 1986 (26
USC 42 (h)(6)(E)(ii)), as amended, applies:
For a period of three (3) years from the date of Foreclosure, with respect to any unit that
had been regulated by the Regulatory Agreement with the California Tax Credit Allocation
Committee, (i) none of the tenants occupying those units at the time of Foreclosure may be
evicted or their tenancy terminated (other than for good cause), (ii) nor may any rent be
increased except as otherwise permitted under Section 42 of the Code.
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863\81\765518.6 20
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust (Riverhouse Hotel)
as of the day and year first above written.
BORROWER TRUSTOR:
RIVERHOUSE ASSOCIATES, A CALIFORNIA
LIMITED PARTNERSHIP
By: Ellis Lake Townhomes, Inc., a California
nonprofit public benefit corporation,
its general partner
By: _____________________________
Name: _____________________________
Its: _____________________________
By: _____________________________
Name: _____________________________
Its: _____________________________
NON-BORROWER TRUSTOR:
EDEN HOUSING INC.
By: _____________________________
Name: _____________________________
Its: _____________________________
By: _____________________________
Name: _____________________________
Its: _____________________________
863\81\765518.6
STATE OF CALIFORNIA )
)
COUNTY OF _____________ )
On ____________ __, 2010, before me, _______________, Notary Public, personally appeared,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name is
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity, and that by his/her/their signature on the instrument the
person, or the entity upon behalf of which the person 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 ________________________________ (seal)
STATE OF CALIFORNIA )
)
COUNTY OF _____________ )
On ____________ __, 2010, before me, _______________, Notary Public, personally appeared,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name is
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity, and that by his/her/their signature on the instrument the
person, or the entity upon behalf of which the person 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 ________________________________ (seal)
863\81\765518.6
STATE OF CALIFORNIA )
)
COUNTY OF CONTRA COSTA )
On ____________ __, 2010, before me, _______________, Notary Public, personally appeared,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name is
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity, and that by his/her/their signature on the instrument the
person, or the entity upon behalf of which the person 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 ________________________________ (seal)
STATE OF CALIFORNIA )
)
COUNTY OF CONTRA COSTA )
On ____________ __, 2010, before me, _______________, Notary Public, personally appeared,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name is
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity, and that by his/her/their signature on the instrument the
person, or the entity upon behalf of which the person 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 ________________________________ (seal)
A-1
863\81\765518.6
EXHIBIT A
LEGAL DESCRIPTION
The land is situated in the State of California, County of Contra Costa, City of Martinez,
and is described as follows:
B-1
863\81\765518.6
EXHIBIT B
NON-BORROWER TRUSTOR RIDER TO DEED OF TRUST
This Non-Borrower Trustor Rider to Deed of Trust is made as of this 11th day of
August, 2010, and is incorporated into and shall be deemed to amend and supplement the Deed
of Trust with Assignment of Rents and Security Agreement ("Deed of Trust"), of even date
herewith executed by RIVERHOUSE ASSOCIATES, a California Limited Partnership (the “Borrower
Trustor” or the "Borrower"), and EDEN HOUSING, INC., a California nonprofit public benefit
corporation (the “Non-Borrower Trustor”) (collectively, “Trustors”), in favor of the COUNTY OF
CONTRA COSTA, a political subdivision of the State of California (the "Beneficiary"), covering
that certain real property located in Contra Costa County, California and described in the Deed of
Trust (the “Property”). The Deed of Trust secures a promissory note to the Beneficiary in the
principal amount of Six Hundred Twenty-Five Thousand Nine Hundred Ninety-Eight Dollars
($625,998) (“Note”) executed by the Borrower.
All initial capitalized terms when used herein without definition shall have the meanings
given such terms in the Deed of Trust.
In addition to the covenants and agreements made in the Deed of Trust and Note,
Borrower, Non-Borrower Trustor, and Beneficiary further covenant and agree as follows:
1. Limitation of Liability. By the execution and delivery of this Deed of Trust, Non-
Borrower Trustor intends to effect a full and complete subordination of its fee interest in the
Property and of all of its rights and interests in any improvements on the Property to the rights of
Beneficiary under the Loan Documents. Non-Borrower Trustor has executed this Deed of Trust
only for the purpose of encumbering all of Non-Borrower Trustor’s interest in the Property by this
Deed of Trust and Non-Borrower Trustor is not personally liable for the payment of the Note or the
payment of sums due under the Deed of Trust or for any deficiency remaining after the foreclosure
of its interest in the Property in accordance with the terms and provisions in the Deed of Trust.
Beneficiary shall not seek to obtain or enforce a monetary claim upon any of the general or specific
assets, including any funds, bonds, or revenue sources whatsoever, of Non-Borrower Trustor, its
officers, directors and employees. The foregoing limitation of personal liability shall at all times be
subject to the following exceptions and qualifications:
(a) Non-Borrower Trustor shall be fully and personally liable for and to the extent
of Non-Borrower Trustor's obligations for each of the following:
(i) Any losses, damages, or costs (including without limitation attorney's
fees) incurred by Beneficiary as a result of fraud, misrepresentation or waste by Non-Borrower
Trustor;
(ii) Retention by Non-Borrower Trustor of any insurance proceeds,
condemnation awards, damages for other public actions, surety bonds, or other similar funds or
payments attributable to the Property covered by this Deed of Trust and the Loan Documents which
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863\81\765518.6
under the terms of the Deed of Trust and the Loan Documents should have been paid to Beneficiary
in connection therewith, including, but not limited to, any attorneys' fees;
(iii) The removal or demolition by Non-Borrower Trustor or the intentional
damage or destruction by Non-Borrower Trustor of any property covered by this Deed of Trust or
the Loan Documents which is neither consented to in writing by the Beneficiary thereof nor is fully
compensated for by insurance proceeds or condemnation awards; and
(iv) The failure, due to the negligence, misrepresentation of fraud of Non-
Borrower Trustor, of this Deed of Trust to constitute a first and prior lien upon the property
encumbered by this Deed of Trust.
(b) Nothing contained in this section will affect or limit the ability of Beneficiary
to enforce any of its rights or remedies with respect to the Property encumbered by this Deed of
Trust and the Loan Documents.
(c) Nothing contained in this section will affect or limit the rights of Beneficiary
to bring any suit or action against Borrower, its officers, employees, or agents.
2. Conditions to Exercise of Rights. Non-Borrower Trustor hereby waives any right
it may now or hereafter have to require Beneficiary, as a condition to the exercise of any remedy
or other right against Non-Borrower Trustor hereunder or under any other document executed by
Non-Borrower Trustor in connection with any Secured Obligation: (a) to proceed against
Borrower or other person, or against any other collateral assigned to Beneficiary by Borrower or
other person; (b) to pursue any other right or remedy in Beneficiary's power; (c) to give notice of
the time, place or terms of any public or private sale of real or personal property collateral
assigned to Beneficiary by Borrower or other person (other than Trustors), or otherwise to
comply with the California Commercial Code (as modified or remodified from time to time) with
respect to any such personal property collateral; or (d) to make or give (except as otherwise
expressly provided in the Loan Documents) any presentment, demand, protest, notice of
dishonor, notice of protest or other demand or notice of any kind in connection with any Secured
Obligation or any collateral (other than the Property) for any Secured Obligation.
3. Defenses. Non-Borrower Trustor hereby waives any defense it may now or
hereafter have that relates to: (a) any disability or other defense of Borrower or other person; (b)
the cessation, from any cause other than full performance, of the obligations of Borrower or any
other person; (c) the application of the proceeds of any Secured Obligation, by Borrower or other
person, for purposes other than the purposes represented to Non-Borrower Trustor by Borrower
or otherwise intended or understood by Non-Borrower Trustor or Borrower, (d) any act or
omission by Beneficiary which directly or indirectly results in or contributes to the release of
Borrower or other person or any collateral for any Secured Obligation; (e) the unenforceability or
invalidity of any collateral assignment (other than this Deed of Trust) or guaranty with respect to
any Secured Obligation, or the lack of perfection or continuing perfection or lack of priority of
any lien (other than the lien hereof) which secures any Secured Obligation; (f) any failure of
Beneficiary to marshal assets in favor of Non-Borrower Trustor or any other person; (g) any
modification of any Secured Obligation, including any renewal, extension, acceleration or
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increase in interest rate; or (h) any and all rights and defenses arising out of an election of
remedies by Beneficiary, even though that election of remedies, such as a nonjudicial foreclosure
with respect to security for a guaranteed obligation, has destroyed Non-Borrower Trustor's rights
of subrogation and reimbursement against the principal by the operation of Section 580d of the
California Code of Civil Procedure or otherwise; (i) any law which provides that the obligation
of a surety or guarantor must neither be larger in amount nor in other respects more burdensome
than that of the principal or which reduces a surety's or guarantor's obligation in proportion to the
principal obligation; (j) any failure of Beneficiary to file or enforce a claim in any bankruptcy or
other proceeding with respect to any person; (k) the election by Beneficiary, in any bankruptcy
proceeding of any person, of the application or non-application of Section 1111(b)(2) of the
United States Bankruptcy Code; (1) any extension of credit or the grant of any lien under Section
364 of the United States Bankruptcy Code; (m) any use of cash collateral under Section 363 of
the United States Bankruptcy Code; (n) the benefit of a fair market value hearing to determine
the size of a deficiency judgment following any trustee's foreclosure sale; or (o) any agreement
or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding
of any person. Without limiting the generality of the foregoing, Non-Borrower Trustor expressly
waives to the extent permitted by law any and all rights and defenses which might otherwise be
available to a guarantor under California Civil Code Sections 2787 to 2855, inclusive, 2899 and
3433 and under California Code of Civil Procedure Sections 580a, 580b, 580d and 726, or any of
such sections.
4. Subrogation. Non-Borrower Trustor hereby waives, until such time as all Secured
Obligations are fully performed: (a) any right of subrogation against Borrower that relates to any
Secured Obligation; (b) any right to enforce any remedy Non-Borrower Trustor may now or
hereafter have against Borrower that relates to any Secured Obligation; and (c) any right to
participate in any collateral now or hereafter assigned to Beneficiary with respect to any Secured
Obligation.
5. Borrower Information. Non-Borrower Trustor warrants and agrees: (a) that
Beneficiary would not have made the Loan but for this Deed of Trust; (b) that Non-Borrower
Trustor has not relied, and will not rely, on any representations or warranties by Beneficiary to
Non-Borrower Trustor with respect to the credit worthiness of Borrower or the prospects of
repayment of any Secured Obligation from sources other than the Property; (c) that Non-
Borrower Trustor has established and/or will establish adequate means of obtaining from
Borrower on a continuing basis financial and other information pertaining to the business
operations, if any, and financial condition of Borrower; (d) that Non-Borrower Trustor assumes
full responsibility for keeping informed with respect to Borrower's business operations, if any,
and financial condition; (e) that Beneficiary has no duty to disclose or report to Non-Borrower
Trustor any information now or hereafter known to Beneficiary with respect to Borrower,
including, without limitation, any information relating to any of Borrower's business operations
or financial condition; and (f) that Non-Borrower Trustor is familiar with the terms and
conditions of the Loan Documents and consents to all provisions thereof.
6. Reinstatement of Lien. Beneficiary's rights hereunder will be reinstated and
revived, and the enforceability of this Deed of Trust will continue, with respect to any amount at
any time paid on account of any Secured Obligation which Beneficiary is thereafter required to
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863\81\765518.6
restore or return in connection with a bankruptcy, insolvency, reorganization or similar
proceeding with respect to Borrower.
7. Subordination. Until all of the Secured Obligations have been fully paid and
performed: (a) Non-Borrower Trustor agrees that all existing and future indebtedness and other
obligations of Borrower to Non-Borrower Trustor (collectively, the "Subordinated Debt") is to
be subordinated to all Secured Obligations which constituted obligations of the Borrower, and
the payment thereof is deferred in right of payment to the prior payment and performance of all
such Secured Obligations; (b) Non-Borrower Trustor may not collect or receive any cash or non-
cash payments on any Subordinated Debt or transfer all or any portion of the Subordinated Debt;
and (c) in the event that, notwithstanding the foregoing, any payment by, or distribution of assets
of, Borrower with respect to any Subordinated Debt is received by Non-Borrower Trustor, such
payment or distribution will be held in trust and immediately paid over to Beneficiary, is hereby
assigned to Beneficiary as security for the Secured Obligations, and will be held by Beneficiary
in an interest bearing account until all Secured Obligations have been fully paid and performed.
This Section 7 does not apply to lease payments due Non-Borrower Trustor from Trustor
pursuant to the Ground Lease for the Property by and between Borrower and Non-Borrower
Trustor dated as of August 14, 1991, as amended.
8. Lawfulness and Reasonableness. Non-Borrower Trustor warrants that all of the
waivers in this Deed of Trust are made with full knowledge of their significance, and of the fact
that events giving rise to any defense or other benefit waived by Non-Borrower Trustor may
destroy or impair rights which Non-Borrower Trustor would otherwise have against Beneficiary,
Borrower and other persons, or against collateral. Non-Borrower Trustor agrees that all such
waivers are reasonable under the circumstances and further agrees that, if any such waiver is
determined (by a court of competent jurisdiction) to be contrary to any law or public policy, the
other waivers herein shall nonetheless remain in full force and effect.
9. Enforceability. Non-Borrower Trustor hereby acknowledges that: (a) the
obligations undertaken by Non-Borrower Trustor in this Deed of Trust are complex in nature,
and (b) numerous possible defenses to the enforceability of these obligations may presently exist
and/or may arise hereafter, and (c) as part of Beneficiary’s consideration for entering into this
transaction, Beneficiary has specifically bargained for the waiver and relinquishment by Non-
Borrower Trustor of all such defenses, and (d) Non-Borrower Trustor has had the opportunity to
seek and receive legal advice from skilled legal counsel in the area of financial transactions of
the type contemplated herein. Given all of the above, Non-Borrower Trustor does hereby
represent and confirm to Beneficiary that Non-Borrower Trustor is fully informed regarding, and
that Non-Borrower Trustor does thoroughly understand: (i) the nature of all such possible
defenses, and (ii) the circumstances under which such defenses may arise, and (iii) the benefits
which such defenses might confer upon Non-Borrower Trustor, and (iv) the legal consequences
to Non-Borrower Trustor of waiving such defenses. Non-Borrower Trustor acknowledges that
Non-Borrower Trustor makes this Deed of Trust with the intent that this Deed of Trust and all of
the informed waivers herein will each and all be fully enforceable by Beneficiary, and that
Beneficiary is induced to enter into this transaction in material reliance upon the presumed full
enforceability thereof.
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863\81\765518.6
10. Effect on Deed of Trust. Except as supplemented herein, all provisions of the
Deed of Trust remain in full force and effect.
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863\81\765518.6
IN WITNESS WHEREOF, the undersigned have executed this Rider to the Deed of Trust
(Riverhouse Hotel) the day and year first herein above written.
BORROWER TRUSTOR:
RIVERHOUSE ASSOCIATES, A CALIFORNIA
LIMITED PARTNERSHIP
By: Ellis Lake Townhomes, Inc., a California
nonprofit public benefit corporation,
its general partner
By: _____________________________
Name: _____________________________
Its: _____________________________
By: _____________________________
Name: _____________________________
Its: _____________________________
NON-BORROWER TRUSTOR:
EDEN HOUSING INC.
By: _____________________________
Name: _____________________________
Its: _____________________________
By: _____________________________
Name: _____________________________
Its: _____________________________
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863\81\765518.6
STATE OF CALIFORNIA )
)
COUNTY OF CONTRA COSTA )
On ____________ __, 2010, before me, _______________, Notary Public, personally appeared,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name is
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity, and that by his/her/their signature on the instrument the
person, or the entity upon behalf of which the person 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 ________________________________ (seal)
STATE OF CALIFORNIA )
)
COUNTY OF CONTRA COSTA )
On ____________ __, 2010, before me, _______________, Notary Public, personally appeared,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name is
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity, and that by his/her/their signature on the instrument the
person, or the entity upon behalf of which the person 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 ________________________________ (seal)
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863\81\765518.6
STATE OF CALIFORNIA )
)
COUNTY OF CONTRA COSTA )
On ____________ __, 2010, before me, _______________, Notary Public, personally appeared,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name is
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity, and that by his/her/their signature on the instrument the
person, or the entity upon behalf of which the person 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 ________________________________ (seal)
STATE OF CALIFORNIA )
)
COUNTY OF CONTRA COSTA )
On ____________ __, 2010, before me, _______________, Notary Public, personally appeared,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name is
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity, and that by his/her/their signature on the instrument the
person, or the entity upon behalf of which the person 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 ________________________________ (seal)
863\81\765513.5 1
PROMISSORY NOTE
(Riverhouse CDBG Loan)
$625,998 Martinez, California
August 11, 2010
FOR VALUE RECEIVED, the undersigned RIVERHOUSE ASSOCIATES, a California
Limited Partnership ("Borrower") hereby promises to pay to the order of the COUNTY OF CONTRA
COSTA, a political subdivision of the State of California ("Holder"), the principal amount of Six
Hundred Twenty-Five Thousand Nine Hundred Ninety-Eight Dollars ($625,998), plus interest
thereon pursuant to Section 2 below. All capitalized terms not otherwise defined in this Note
have the meanings set forth in the Loan Agreement.
1. Loan Agreement. This Note evidences Borrower's obligation to repay Holder the
principal amount of Six Hundred Twenty-Five Thousand Nine Hundred Ninety-Eight Dollars
($625,998) for the funds loaned to Borrower by Holder to finance the development of the Property
pursuant to the CDBG Loan Agreement between Borrower and Holder of even date herewith (the
"Loan Agreement").
2. Interest.
(a) This Note does not bear any interest, except as provided in Section 2(b)
below.
(b) If an Event of Default occurs, interest will accrue on all amounts due
under this Note at the Default Rate during the period of such Event of Default.
3. Term and Repayment Requirements. Payments due under this Note are due in
accordance with this Note and in accordance with Section 2.7 of the Loan Agreement. In any
event, the unpaid principal balance hereunder, together with any accrued interest thereon, is due
and payable not later than August 30, 2041.
4. No Assumption. This Note is not assumable by the successors and assigns of
Borrower without the prior written consent of Holder.
5. Security. This Note, with interest, is secured by that certain Deed of Trust with
Assignment of Rents, Security Agreement, and Fixture Filing of even date herewith (the “Deed of
Trust”). Upon execution, the Deed of Trust will be recorded in the official records of Contra Costa
County, California. Upon recordation of the Deed of Trust, this Note will become nonrecourse to
Borrower, pursuant to and except as provided in Section 2.8 of the Loan Agreement.
6. Terms of Payment.
(a) Borrower shall make all payments due under this Note in currency of the
United States of America to Holder at Department of Conservation and Development, 2530 Arnold
863\81\765513.5 2
Drive, Suite 190, Martinez, California 94553, Attention: Deputy Director-Redevelopment, or to
such other place as Holder may from time to time designate.
(b) All payments on this Note are without expense to Holder. Borrower shall
pay all costs and expenses, including re-conveyance fees and reasonable attorney's fees of
Holder, incurred in connection with the payment of this Note and the release of any security
hereof.
(c) Notwithstanding any other provision of this Note, or any instrument
securing the obligations of Borrower under this Note, if, for any reason whatsoever, the payment
of any sums by Borrower pursuant to the terms of this Note would result in the payment of
interest that exceeds the amount that Holder may legally charge under the laws of the State of
California, then the amount by which payments exceed the lawful interest rate will automatically
be deducted from the principal balance owing on this Note, so that in no event is Borrower
obligated under the terms of this Note to pay any interest which would exceed the lawful rate.
(d) The obligations of Borrower under this Note are absolute and Borrower
waives any and all rights to offset, deduct or withhold any payments or charges due under this
Note for any reason whatsoever.
7. Event of Default.
(a) Upon the occurrence of an Event of Default, the entire unpaid principal
balance, together with all interest thereon, and together with all other sums then payable under
this Note and the Deed of Trust will, at the option of Holder, become immediately due and
payable without further demand.
(b) Holder's failure to exercise the remedy set forth in Subsection 7(a) above
or any other remedy provided by law upon the occurrence of an Event of Default does not
constitute a waiver of the right to exercise any remedy at any subsequent time in respect to the
same or any other Event of Default. The acceptance by Holder of any payment that is less than
the total of all amounts due and payable at the time of such payment does not constitute a waiver
of the right to exercise any of the foregoing remedies or options at that time or at any subsequent
time, or nullify any prior exercise of any such remedy or option, without the express consent of
Holder, except as and to the extent otherwise provided by law.
8. Waivers.
(a) Borrower hereby waives diligence, presentment, protest and demand, and
notice of protest, notice of demand, notice of dishonor and notice of non-payment of this Note.
Borrower expressly agrees that this Note or any payment hereunder may be extended from time
to time, and that Holder may accept further security or release any security for this Note, all
without in any way affecting the liability of Borrower.
(b) Any extension of time for payment of this Note or any installment hereof
made by agreement of Holder with any person now or hereafter liable for payment of this Note
863\81\765513.5 3
must not operate to release, discharge, modify, change or affect the original liability of Borrower
under this Note, either in whole or in part.
9. Miscellaneous Provisions.
(a) All notices to Holder or Borrower are to be given in the manner and at the
addresses set forth in the Loan Agreement, or to such addresses as Holder and Borrower may
therein designate.
(b) Borrower promises to pay all costs and expenses, including reasonable
attorney's fees, incurred by Holder in the enforcement of the provisions of this Note, regardless
of whether suit is filed to seek enforcement.
(c) This Note is governed by the laws of the State of California.
(d) The times for the performance of any obligations hereunder are to be
strictly construed, time being of the essence.
(e) The Loan Documents, of which this Note is a part, contain the entire
agreement between the parties as to the Loan. This Note may not be modified except upon the
written consent of the parties.
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863\81\765513.5 4
IN WITNESS WHEREOF, the Borrower is executing this promissory note (Riverhouse
Hotel) as of August 11, 2010, in Martinez, California.
BORROWER:
RIVERHOUSE ASSOCIATES, A CALIFORNIA
LIMITED PARTNERSHIP
By: Ellis Lake Townhomes, Inc., a California
nonprofit public benefit corporation,
it's general partner
By: ___________________________
Name: ___________________________
Its: ___________________________
By: ___________________________
Name: ___________________________
Its: ___________________________