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01-110 Deed of TrustU n~-~~~ NO FEE DOCUMENT -PER cov'r. CODE SECTIOr?S 27333 & 6103 Recording requested by and when recorded, mail to: City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 Attn: City Clerk ESCROW NO. 520543-I~~I DOCUMENT: 15982065 ~~IIIIIIIIIWV~IIIIIIII~IIIIIIIV Titles 3 /Pages 14 Fees....+ No Fees Taxes... Copies.. AMT PAID Bf2ENDA DAV 1 S Sf\NTA CLARA COUNTY RECORDER Recorded at the request of 0 d Republic Title Company RDE # 102 11/29/2001 s:ee AM CONSTRUCTION AND PERI\~ANENT DEED OF TRUST, ASSIGNMENT OF RENTS, ATfD SECURITY AGREEMENT THIS DEED OF TRUST, ASSIGNMENT' OF RENTS, AND SECURITY AGREEMENT ("Deed of Trust") is made this 1st day of October, 2001, by Cupertino Community Services, Inc., a California nonprofit public benefit corporation ("Trustor"), to First American Title Insurance Company, a California Corporation as trustee ("Trustee"), for the benefit of the City of Cupertino, a municipal corporation ("Beneficiary"). GRANT Il~d TRUST 1. GRANT. Trustor, in consideration of the indebtedness referred to below, hereby irrevocably grants and conveys to Trustee, IN TRUST, WITH POWER OF SALE, for the benefit and security of Beneficiary, all of Trustor's leasehold interest in the property located in Cupertino, California, and described in the attachf;d 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; all buildings, structures, fixtures, improvements, signs, and landscaping now or hereafter erected or located on the Property, including all equipment and machinery used for supplying or distributing heating, cooling, electricity, gas, water, air, and light, all kitchen and laundry appliances such as washers, dryers, refrigerators, garbage disposals, ovens, ranges, di:~hwashers, all plumbing and bathroom fixtures, all security and access control equipment, fire prevention and extinguishment equipment, elevators, floor coverings, window coverings, paneling, cabinets, (provided, however, that Trustor shall have the right to remove, if necessary, such fixtures, furnishings, and equipment for the purpose of replacement with similar items of the same quality performing the same functions, which replacements shall themselves become part. of this grant); all building material and equipment either now or hereafter delivered to the; Property and intended to be installed therein or any such material and equipment purchased for the Property whether or not located on the Property; all reserves, accounts, deferred payments, and refunds relating to development on the Property; all rents and income generated by the Property or improvements thereon (subject 144\121 \119103.4 however to the assignment of rents to Lender contained herein); all leases, subleases and rental agreements covering the Property or any portion thereof now existing or hereafter entered into, and all interests of Trustor insecurity deposits, advance rentals, accounts, or payments of similar nature with respect to such leases, subleases, or rental agreements; all easements and rights-of- way appurtenant to the Property, including parkin; and recreational easements, and all interests of Trustor in any land lying within the right-of--way of any street, sidewalks, and areas of land adjacent to or used in connection with the Propert:,~; all development rights and credits, air rights, water rights, and oil, gas or mineral rights with respect to the Property; all claims or demands with respect to insurance proceeds, and all awards made for a taking by eminent domain; all interests and rights in any private or government grants, subsidies, loans, or other financing with respect to development on the Property; all interests in personal property used in and about the Property (except furniture and other personal property of occupants of dwelling units on the Property); all intangible property and rights relating to the Property or operations on the Property, including trade names, goodwill, trademarks, and service marks; all government permits, approvals, and map rights related to construction on the Property; all architectural, structural, and mechanical plans, specifications, designs, studies, and data with respect to construction of improvements on the Property; all environmental tests, studies and reports with respect to the Property; all current and future claims and rights of action of Trustor against prior owners and operators of the Property, neighboring property owners and operators, tenants and former tenants, consultants, advisors, and other third parties with respect to environmental or Hazardous Materials contamination and cleanup c~f the Property under any federal, state, or local ordinances, statutes, regulations, or administrative decisions or common law. All of the foregoing, together with the Pro~~erty, is herein referred to as the "Security." OBLIGATIONS SECURED 1. OBLIGATIONS. Trustor makes this grant for the purpose of securing the following obligations: A. Repayment of the indebted~iess of Trustor to Beneficiary in the principal sum of Two Million Seven Hundred Five Thousand Dollars ($2,705,000) (the "Loan") evidenced by a Promissory Note executed by Trustor in the amount of Two Million Seven Hundred Five Thousand Dollars ($2,705,000) (the "Note") on file at the offices of Beneficiary, which is hereby incorporated into this Deed of Trust by this reference or as much as has been disbursed to Trustor therewith, along with any extensions, amendments, modifications, or renewals to the Note; and B. Payment of any sums adva~iced by Beneficiary to protect the security and priority of this Deed of Trust; and C. Payment of any sums advanced by Beneficiary 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; and 144\121\119103.4 D. Performance of every obligation, covenant or agreement of Trustor contained in this Deed of Trust, the Note, the Loan Agreement executed between Trustor and Beneficiary for this loan (the "Loan Agreement"), on file at the offices of Beneficiary, which i s hereby incorporated into this Deed of Trust by this reference, and the regulatory agreement executed between Trustor and Beneficiary of even date herewith (the "Regulatory Agreement"), including all modifications, extensions and renew~~ls of these obligations; and E. Performance of any other o bligation or repayment of any other indebtedness of Trustor to Beneficiary, where such evidence of obligation or indebtedness specifically recites that it is secured by this Deed of Trust; and F. Performance of any obligations of Trustor in any other agreements with respect to financing of the Development or the Se~;urity the absence of which should adversely affect Beneficiary, whether or not Beneficiary is a party to such agreements. ABSOLUTE ASSIGNMENT OF RENTS AND RIGHT TO POSSESSION 1. ASSIGNMENT. As additional security, Trustor hereby assigns to Beneficiary: (a) all of the rents, revenues, profits, and income fi-om the Security, any deposits now or hereafter in Trustor's possession which have been collected with respect to the Security, and any reserve or capital funds now or hereafter held by Trustor with respect to construction or operation of the Security (collectively, the "Rents"); and (b) the right to enter, take possession of, and manage the Security; provided however that Trustor shall have:, before an Event of Default, the exclusive right to possess the Security and to collect Rents and use them in accordance with the Agency Documents. This assignment is intended to be an absolute and present transfer of Trustor's interest in existing and future Rents, effective as of the date of this Deed of Trust. 2. ENFORCEMENT. Upon the happening of an Event of Default which remains uncured after expu-ation o t e applicable cure period pursuant to the terms of the Loan Agreement or other Agency Documents, Benefici;~ry may, in addition to other rights and remedies permitted by the Loan Agreement, this Deed of Trust, or applicable law, (a) enter upon, take possession of, and manage the Security, either inperson as amortgagee-in-possession, by agent, or by a receiver appointed by a court, and do any acts which it deems necessary or desirable to preserve the value, marketability or rentability of the Security, (b) collect all Rents, including those past due and unpaid, and apply thc; same to pay for the costs and expenses of operation of the Security, including attorneys' fees, and pay off any indebtedness secured by this Deed of Trust, all in such order as Beneficiary may determine, (c) enter upon and take possession of the Security, and complete construction of any .improvements on the Security as provided for in the Plans and Specifications approved under the Loan Agreement or any modifications to the Plans and Specifications or the Project that Beneficiary in its sole discretion believes is appropriate, and/or (d) Beneficiary may make, cancel, enforce, and modify leases and rental agreements, obtain and evict tenants, set and mod:~ify rent terms, sue for rents due, enter into, modify, or terminate any contracts or agreements, or take any legal action, as it deems necessary with respect to the Rents or to development or operation of the Security. 144\121\119103.4 3. APPOINTMENT OF A RECEIVE ~. In any action to enforce this assignment, Beneficiary may app y or t e appointment o a re~~eiver to take possession of the Security and take whatever measures are necessary to preserve and manage the Security for the benefit of Beneficiary and the public interest. Trustor hereb~~ consents to the appointment of a receiver. The receiver shall have all of the authority over th~~ Security that Beneficiary would have if Beneficiary took possession of the Security under this assignment as amortgagee-in-possession, including the right to collect and apply Rents and the right to complete construction of improvements. 4. NO WAIVER OF POWER OF SALE. The entering upon and taking possession of the Security an t e co ection o Rents s a not cure or waive any default or notice of default hereunder or invalidate any act done in response to such default or notice of default and, notwithstanding the continuance in possession of the Security or the collection and application of Rents, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law upon occurrence of any Event of Default, i ncluding the right to exercise the power of sale. COMMERCIAL CODE SECURITY AGREEMENT 1. GRANT. This Deed of Trust is intended to be a security agreement and financing statement pursuant to e California Commercial (ode for any of the items specified above as part of the Security which under applicable law m;ay be subject to a security interest pursuant to the Commercial Code, and Trustor hereby grants Beneficiary a security interest in said items. Beneficiary may file a copy of this Deed of Trust rn the real estate records or other appropriate index as a financing statement for any of the items specified as part of the Security. Trustor shall execute and deliver to Beneficiary at Beneficiary's. request any financing statements, as well as extensions, renewals, and amendments thereof, and copies of this instrument in such form as Beneficiary may require to perfect a security interest with respect to said items. Trustor shall pay all costs of filing such financing statements ar~d shall pay all reasonable costs of any record searches for financing statements and releases. Without the prior written consent of Beneficiary, Trustor shall not create or permit any other security interest in said items. This Deed of Trust constitutes a fixture filing under Sections 9313 an~i 9402(6) of the California Commercial Code. 2. REMEDIES. Upon Trustor's breach of any obligation or agreement in the Agency Documents, 3~ene~iciary shall have the remedies of a secured party under the Commercial Code and at Beneficiary's option may also invoke the remedies provided for elsewhere in this Deed of Trust with respect to said items. Beneficiary may proceed against the items of real property and personal property specified above separately or together and in any order whatsoever. RIGHTS AND OBLIGATIONS OF TRUSTOR 1. PERFORMANCE OF SECURED OBLIGATION. Trustor shall promptly perform each obligation secure y t is ee o rust. 144\121\119103.4 2. PAYMENT OF PRINCIPAL AND INTEREST . Trustor shall promptly pay when due the principa an interest on t e m e to ess evi ~~nc~~ the Note. 3. MAINTENANCE OF THE SECURIT~~. Trustor shall, at the Trustor's own expense, maintain an preserve t e ecurity or cause t e ecurity to be maintained and preserved in good condition, in good repair, and in a decent, safe, sanitary; habitable and tenantable condition. Trustor shall not cause or permit any violations of any laws, ordinances, regulations, covenants, conditions, restrictions, or equitable servitudes as they pertain to improvements, alterations, maintenance or demolition on the Security. Trustor shall not commit or permit waste on or to the Security. Trustor shall not abandon the Security. Beneficiary shall have no responsibility over maintenance of the Security. In the event Trustor fails to maintain the Security in accordance with the standards in this Deed of Trust, the Loan Agreement, or the Regulatory Agreement, Beneficiary and after any applicable cure periods, may, but shall be under no obligation to, make such repairs or replacements as are necessary and provide for payment thereof. Any amount so advanced by Beneficiary, together with interest thereon from the date of such advance at the same rate of indebtedness as specified in the Note (unless payment of such an interest rate would be contrary to applicable law, in which event such sums shall bear interest at the highest rate then allowed by applicable law), shall become an additional obligation of Trustor to Beneficiary and shall be secured by this Deed of Trust. 4. INSPECTION OF THE SECURITY. Trustor shall permit Beneficiary to enter and inspect the Security or comp lance wit t ese obligations upon 24 hours advance written notice of such visit by Beneficiary to Trustor or Trustor's management agent. 5. LIENS, ENCUMBRANCES, AND CBARGES. Trustor shall discharge any lien or encumbrance not approve y Trustor m writing t a~i t may attain priority over this Deed of Trust, as provided for in the DDLA. 6. DEFENSE AND NOTICE OF CLAIMS AND ACTIONS. Trustor shall appear in and defend, at its own expense, any action or procee rng purporting to a fect the Security and/or the rights of Beneficiary. Trustor shall give Beneficiary and Trustee prompt notice in writing of the assertion of any claim, of the filing of any action or proceeding and of any condemnation offer or action with respect to the Security. 7. SUITS TO PROTECT THE SECURITY. Beneficiary shall have power to institute and maintain suc suits an procee mgs as rt may~eem expedient (a) to prevent any impairment of the Security or the rights of Beneficiary, (b) to preserve or protect its interest in the Security and in the Rents, and (c) to restrain the enforcement of or compliance with any governmental legislation, regulation, or order, if the enforcement of or compliance with such legislation, regulation, or order would impair the Security or 1-e prejudicial to the interest of Beneficiary. 8. DAMAGE TO SECURITY. Trustor shall give Beneficiary and Trustee prompt notice in writing o any age tote ecunty. If any building or improvements erected on the Property is damaged or destroyed by an insurable cause, Trustor shall, at its cost and expense, repair or restore said buildings and improvements consistent with the original plans and 144\121\119103.4 specifications. Such work or repair shall be commenced within one hundred twenty (120) days after the damage or loss occurs and shall be complete within one year thereafter. All insurance proceeds collected for such damage or destruction shall be applied to the cost of such repairs or restoration and, if such insurance proceeds shall bf; insufficient for such purpose, Trustor shall make up the deficiency. 9. TITLE. Trustor warrants that Trustor lawfully has legal title to the Security without any limitation on the right to encumber. 10. GRANTING OF EASEMENTS. Trustor may not grant easements, licenses, rights- of-way or of errig is or privi eges m t e nature of easements with respect to the Security except those required or desirable for installation and maintenance of public utilities including water, gas, electricity, sewer, cable television, telephone, or those required by law. 11. TAXES AND LEVIES. Trustor shall -pay prior to delinquency, all taxes, fees, assessments, c arges an evies imposed by any public authority or utility company which are or may become a lien affecting the Security. However, Trustor shall not be required to pay and discharge any such tax, assessment, charge or levy so long as (a) the legality thereof shall be promptly and actively contested in good faith and by appropriate proceedings, and (b) Trustor maintains reserves adequate to pay any contested Viabilities. In the event that Trustor fails to pay any of the foregoing items, Beneficiary may, but shall be under no obligatio n to, pay the same, after Beneficiary has notified Trustor of such failure to pay and Trustor fails to fully pay such items within seven business days after receipt of such notice. Any amount so advanced by Beneficiary, together with interest thereon from t1~e date of such advance at the same rate of indebtedness as specified in the Note (unless payment of such an interest rate would be contrary to applicable law, in which event such sums shall bear interest at the highest rate then allowed by applicable law), shall become an additional obligation of Trustor to Beneficiary and shall be secured by this Deed of Trust. 12. INSURANCE. Trustor shall provide such insurance as required under the DDLA and the Regu atory greement. In the event Trustor fails to maintain the full insurance coverage required by this Deed of Trust, Beneficiary, after ~~t least seven business days prior notice to Trustor, may, but shall be under no obligation to, take out the required policies of insurance and pay the premiums on such policies. Any amount :~o advanced by Beneficiary, together with interest thereon from the date of such advance at t:he same rate of indebtedness as specified in the Note (unless payment of such an interest rate would be contrary to applicable law, in whit h event such sums shall bear interest at the highest rate then allowed by applicable law), shall become an additional obligation of Trustor to Beneficiary and shall be secured by this Deed of Trust. 13. CONDEMNATION. All judgments, awards of damages, settlements and compensation ma a in connection with or in lieu of taking all or any part of or interest in the Security under assertion of the power of eminent domain ("Funds") are hereby assigned to and shall be paid to Beneficiary. Beneficiary is authorized (but not required) to collect and receive any Funds and is authorized to apply them in whole or in part upon any indebtedness or obligation secured hereby, in such order and manner as Beneficiary shall determine at its sole 144\121\119103.4 option. All or any part of the amounts so collected and recovered by Beneficiary maybe released to Trustor upon such conditions as Beneficiary may impose for its disposition. Application of all or any part of the Funds collected and received by Beneficiary or the release thereof shall not cure or waive any default under tY~is Deed of Trust. Notwithstanding anything to the contrary set forth herein, Beneficiary shall, prior to the application of the Funds or any portion thereof to the indebtedness or other obligations, apply such portion of the Funds as is reasonable and necessary to repair and preserve the value, marketability and rentability of the Security. 14. ACCELERATION ON TRANSFER C)F SECURITY; ASSUMPTION. In the event that Trustor, wrt out t e pnor wntten consent o tie ene lciary, se s, agrees to sell, transfers, or conveys its interest in the Security or any part thereof or interest therein, Beneficiary may at its option declare all sums secured by this Deed of'Trust to be immediately due and payable. This option shall not apply in case of: A. the grant of a leasehold interest to qualifying households who will occupy Project units as provided for under the Agency Documents; or B. sale or transfer of fixtures or personal property pursuant to the grant provisions in this Deed of Trust; Consent to one sale or transfer shall not be deemed to be a waiver of the right to require such consent to future or successive transactions. 15. RECONVEYANCE BY TRUSTEE. 'T'his trust is intended to continue for the entire term of the Loan. Upon written request o Benefit:iary stating that all sums secured by this Deed of Trust have been paid 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. DEFAULT AND REMEDIES 16. EVENTS OF DEFAULT. Any of the events listed in the Loan Agreement as an Event of De au t s a a so constitute an Event of :Default under this Deed of Trust, including, but not limited to, (1) Trustor's failure to pay when due any sums payable under this Deed of Trust, the Note, or the Loan Agreement; (2) Trustor's failure to observe or to perform any of its other covenants, agreements or obligations under this Deed of Trust, the Note, or the Loan Agreement; or (3) Trustor's failure to make any payment or perform any of its other covenants, agreements, or obligations under any other agreement with res~~ect to financing for the Project or the Security, whether or not Beneficiary is a party to such agreement. 17. ACCELERATION OF MATURITY. Upon the happening of an Event of Default which has not een cure wrt m t e times an m the manner provided in the Loan Agreement, Beneficiary may declare all sums advanced to Trustor under the Note and this Deed of Trust immediately due and payable. 144\121\119103.4 18. BENEFICIARY'S REMEDIES. Upon the happening of an Event of Default which has not been cure wrt m t e times an m the mariner provided in the Loan Agreement, Beneficiary may, in addition to other rights and remedies permitted by the Loan Agreement, the Note, or applicable law, proceed with any or all of the following remedies: A. Enforce the assignment of rents and right to possession as provided for in this Deed of Trust, and/or seek appointment of a receiver to take over possession of the Security and collect Rents; B. Enter the Security and take any actions necessary in its judgment to complete construction on the Security as permitted under the Assignment of Development Rights executed by Trustor (on file with Beneficiary) and the assignment of rents and right to possession in this Deed of Trust, either in person or through a receiver appointed by a court; C. Disburse from Loan proceeds any amount necessary to cure any Event of Default under this Deed of Trust, the Loan Agreement, or the Note; D. Commence an action to foreclose this Deed of Trust pursuant to California Code of Civil Procedure Sections 725a, et seq., and/or seek appointment of a receiver from a court of competent jurisdiction with the authority to protect Beneficiary's interests in the Security, including the authority to complete construction of improvements; E. Deliver to Trustee a written declaration of Default and demand for sale, and a written Notice of Default and election to caL~se Trustor's interest in the Security to be sold, which notice Trustee or Beneficiary shall duly file for record in the Official Records of Santa Clara County, and exercise its power of sale as provided for below; or F. Pursue any other rights and remedies allow at law or in equity. 19. FORECLOSURE BY POWER OF S~-LE. Should Beneficiary elect to foreclose by exercise oft e power o sa a contame m t 1s Dee~of Trust, Beneficiary shall notify Trustee and shall deposit with Trustee this Deed of Trust (the deposit of which shall be deemed to constitute evidence that the unpaid sums disbursed under the Note are immediately due and payable), and such receipts and evidence of any e~:penditures made that are additionally secured hereby as Trustee may require. Upon receipt of such notice from Benefici;u-y, Trustee shall cause to be recorded, published and delivered to Trustor such Notice of Default and Election to Sell as then required by law and by this Deed of Trust. Trustee shall, v~~ithout demand on Trustor, after lapse of such time as may then be required by law and after recc-rdation of such Notice of Default and after Notice of Sale having been given as required by law, sell the Security, at the time and place of sale fixed by it in said Notice of Sale, whether as ~~ whole or in separate lots or parcels or items as Trustee shall deem expedient and in such order as it may determine unless specified otherwise by Trustor, 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 t~~ the purchaser its deed or deeds conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such 144\121\119103.4 deed of any matters of facts shall be conclusive pr~~of of the truthfulness thereof. Any person, including, without limitation, Trustor, Trustee, or Beneficiary, may purchase at the sale. 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 postponemeirt, or may, in its discretion, give a new Notice of Sale. After deducting all reasonable costs, fees and expenses of Trustee, including costs of evidence of title in connection with such sale, Tru;;tee shall apply the proceeds of sale as follows: (i) first, to the payment of all sums then secured by this Deed of Trust, in such order and amounts as Beneficiary in its sole discretion determines, and (ii) the remainder, if any, to the person or persons legally entitled thereto. 20. REMEDIES CUMULATIVE. No riglrt, power or remedy conferred upon or reserved to ene iciary y t 1s ee o rust is intended to be exclusive of any other rights, powers or remedies, but each such right, power and remedy shall be cumulative and concurrent and shall be in addition to any other right, power and remedy given hereunder or now or hereafter existing at law or in equity. GENERAL PF:OVISIONS 21. GOVERNING LAW. This Deed of Trust shall be interpreted under and governed by the laws oft e State o Ca i ornia, except for those: provisions relating to choice of law and those provisions preempted by federal law. 22. STATEMENT OF OBLIGATION. L,~~nder may collect a fee not to exceed the maximum a owa a un er app ica e aw or rnishing a statement of obligations as provided in the California Civil Code. 23. CONSENTS AND APPROVALS. Airy consent or approval of Beneficiary required under this Dee o Trust s a not a unreasonabl}~ withheld. 24. TIME. Time is of the essence in this Deed of Trust. 25. NOTICES, DEMANDS AND COMN[UNICATIONS. Formal notices, demands and communications etween rustor an ene iciary s a e su iciently given and shall not be deemed given unless dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally, to the principal offices of Trustor and Beneficiary as follows: BENEFICIARY: City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 Attn: Dave Knapp, City Manager 144\121\119103.4 TRUSTOR: Cupertino Community Services, Inc. 10185 North Stellin~; Road Cupertino, California 95014 Executive Director: Jaclyn Fabre 26. BINDING UPON SUCCESSORS. Aill provisions of this Deed of Trust shall be binding upon an inure tote ene tote eirs, administrators, executors, successors-in - interest, transferees, and assigns of Trustor, Trustee, and Beneficiary. 27. WAIVER. Any waiver by Beneficiar~~ of any obligation of Trustor in this Deed of Trust must be m writing. No waiver will be impli~;d from any delay or failure by Beneficiary to take action on any breach or default of Trustor or to pursue any remedy allowed under the Deed of Trust or applicable law. Any extension of time granted to Trustor to perform any obligation under this Deed of Trust shall not operate as a waiver or release Trustor from any of its obligations under this Deed of Trust. Consent by Beneficiary to any act or omission by Trustor shall not be construed to be a consent to any other or subsequent act or omission or to waive the requirement for Beneficiary's written consent to fixture waivers. 28. AMENDMENTS AND MODIFICATIONS. Any amendments or modifications to this Deed o Trust must e m wntmg, an s a e~ only if mutually agreed upon by Beneficiary and Trustor. 29. LOAN AGREEMENT CONTROLS. If there is any contradiction between this instrument an t e Loan greement, t e terms of the Loan Agreement shall control, except that Trustor shall have no defense or claim that this instrument does not establish a valid lien on the Property or the Security. 30. DEFINITIONS . Capitalized terms not otherwise defined in this Deed of Trust shall have the same meaning as defined terms in the Loan Agreement. 31. PROOFS OF CLAIM. In the case of any receivership, insolvency, bankruptcy, reorganization, arrangement, a ~ustment, recomposition or other proceedings affecting Trustor, its creditors or its property, Trustee, to the extent permitted by law, shall be entitled to file such proofs of claim and other documents as may be necessary or advisable in order to have the claims of Beneficiary allowed in such proceeding;; and for any additional amount which may become due and payable by Trustor hereunder aft~;r such date. 32. SEVERABILITY. Every provision of this Deed of Trust is intended to be severable. If any term or provision o t is Deed of Trust is declared to be illegal, invalid, or unenforceable by a court of competent jurisdiction, the legality, validity, and enforceability of the remaining provisions shall not be affected. 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) shall be considered to 144\121\119103.4 have been first paid or applied to the payment of tli~at portion of the debt which is not secured or partially secwed by the lien of this Deed of Trust. 33. SUBSTITUTION OF TRUSTEES . Beneficiary may from time to time appoint another trustee to act m t e p ace an stea o Trustee or any successor. Upon such appointment and without conveyance, the successor trustee shall be vested with all title, powers, and duties conferred upon Trustee. 34. ACCEPTANCE BY TRUSTEE. Tru:;tee accepts this Trust when this Deed of Trust, duly execute an ac now a ge , is ma a public record as provided by law. Except as otherwise provided by law, the Trustee is not obligated to notify any party hereto of pending sale under this Deed of Trust or of any action or proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless brought by Trustee. 35. NONRECOURSE OBLIGATION. The City's sole recourse in the event of an Event of Default s a e to t e roperty, except m t e e~~ent of (i) fraud by the Borrower, (ii) any material misrepresentation made by the Borrower to the City in connection with the Loan, (iii) misappropriation by the Trustor of any rents, security deposits, or insurance or condemnation proceeds or (iv) commission of bad faith waste by the Borrower. The foregoing provisions shall not prevent recourse to the collateral security for tike Loan or constitute a waiver, release or discharge of or otherwise affect the obligation to I-ay, any indebtedness evidenced by the Note. IN WITNESS WHEREOF, Trustor has ex~:cuted this Deed of Trust as of the day and year first above written. Trustor: Cupertino Community Services, Inc., a California nonprofit public benefit corporation Its: ~~ ~ ~ ~i,~€c~--a/? THIS DOCUMENT MUST BE NOTARIZED FOR RECORDING 144\121\119103.4 STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO )ss. On October 22, 2001 before me, the undersigned, a Notary Public, personally appeared Jaclyn Fabre, proved to me on the basis of satisfactory e~~idence to be the person whose name is subscribed to the within instrument, and acknowlt;dged to me that she executed the same in her authorized capacity, and that by her signature on t:he instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. E. Danessa Miller ~_- - U ~~^°R ••A E. D~~ESSA RfrlLl t~l~ n "m ~ _ NOT R~ P BLIC-2CALiFORNIk oa ~ City 8 County of San Francisco COMIIh. EXP MOV ~ . . 55, 2002 FRM\FRM\114580.1 Order No. 520543-LM EXHIBIT "A" The land referred to is situated in the State of California, County of Santa Clara, City of Cupertino, and is described as follows: A Leasehold Estate, as created OCt. 1, 2C~0], from the Santa Clara County Central Fire Protection District to County of Santa Clara by document recorded NoV. 2001 2001, as document numbered nd as assigned to Cupertino Community Services by document recordedNOV. 2001, as document numbered ~c~ over the following described lands. ALL THAT CERTAIN REAL PROPERTY SITUATE IN THE CITY OF CUPERTINO, COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, AND DESCRIBED AS FOLLOWS: BEING A PORTION OF THE LANDS DESCRIBED IN THE GRANT DEED TO THE SANTA CLARA COUNTY CENTRAL FIRE PROTECTION DISTRICT RECORDED NOVEMBER 8, 1995, AS DOCUMENT NUMBER 13087225, OFFICIAL RECORDS OF SANTA CLARA COUNTY, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT A POINT IN THE CENTER LINE c~F STEVENS CREEK BOULEVARD (FORMERLY STEVENS CREEK ROAD) DISTANT THEREON SOUTH 89' 41' 00" WEST 164.57 FEET FROM A BOLT AT THE POINT OF INTERSECTION OF SAID CENTER LINE OF STEVENS CREEK BOULEVARD WITH SAID CENTER LINE OF RANDY LANE (FORMERLY MONTE VISTA i~VENUE) AS SAID ROAD AND AVENUE ARE SHOWN ON THAT CERTAIN MAP ENTITLED "MONTE VISTA" F:CLED JULY 20, 1906 IN BOOK L OF MAPS, PAGE 43, IN THE OFFICE OF THE RECORDER OF SANTi~ CLARA COUNTY; THENCE NORTH 00" 22' 20" WEST AND PARALLEL WITH SAID CENTERLINE OF RANDY LANE 45.00 FEET TO THE NORTHERLY RIGHT OF WAY OF STEVENS CREEK BOULEVARD A:i DESCRIBED IN THE DEDICATION OF REAL PROPERTY FOR ROADWAY PURPOSES TO THE CITY OF CUPERTINO, RECORDED APRIL 21, 1996 IN BOOK 5693 PAGE 333, OFFICIAL RECORDS OF Si1NTA CLARA COUNTY; THENCE NORTH 00~ 22' 20" WEST AND PARALLEL WITH SAID CENTER LINE O]? RANDY LANE 198.00 FEET TO THE POINT OF BEGINNING; THENCE LEAVING SAID PARALLEL L:CNE SOUTH 89~ 41' 00" WEST 236.82 FEET TO THE EASTERLY RIGHT OF WAY OF VISTA DRIVE 1~S DESCRIBED IN THE GRANT DEED TO THE CITY OF CUPERTINO, RECORDED MARCH 6, 1958 IN BOOK 4023 PAGE 485, OFFICIAL RECORDS OF SANTA CLARA COUNTY; THENCE ALONG SAID EASTERLY F2IGHT OF WAY LINE OF VISTA DRIVE NORTH 00' 18' 00" WEST 193.93 FEET TO THE DIVIDING DINE BETWEEN LOT 23 AND LOTS 19, 20, 21 AND_ 22 AS SHOWN ON SAID MAP (L MAPS 43) THENCFi ALONG SAID DIVIDING LINE NORTH 89 41'00" EAST 371.15 FEET TO THE WESTERLY RIGHT OF WAY LINE OF RANDY LANE AS DESCRIBED IN SAID GRANT DEED (4023 OR 485); THENCE ALONG SA::D WESTERLY RIGHT OF WAY LINE SOUTH 00" 22' 20" EAST PARALLEL WITH SAID CENTER LINE OI' RANDY LANE 40.00 FEET; THENCE LEAVING SAID WESTERLY RIGHT OF WAY LINE SOUTH 89" 41' 00" WEST 134.57 FEET TO THE EASTERLY LINE OF SAID LANDS (13087225 O.R.); THENCE ALONG :iAID EASTERLY LINE SOUTH 00" 22' 20" EAST PARALLEL WITH SAID CENTER LINE OF RANDY L~~ND 153.92 FEET TO THE POINT OF BEGINNING. CONTAINING AN AREA OF 1.177 ACRES, MORE OFt LESS. SUBJECT TO ANY EASEMENTS OF RECORD, AND AS DESCRIBED AS PARCEL 2 IN LOT LINE ~~DJUSTMENT RECORDED OCTOBER 3, 2001, SERIES NO. 15895548, OFFICIAL RECORDS.