RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
Bank of America National )
Trust and Savings Association )
California Real Estate )
Specialty Unit ▇▇. ▇▇▇▇▇ )
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ )
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ )
Attn: ▇▇▇▇▇ ▇▇▇▇ )
Loan No: 3029857 )
) Space above for Recorder's Use
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DEED OF TRUST WITH ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING
(CALIFORNIA)
/ / IF THIS BOX IS CHECKED, THIS DOCUMENT IS A CONSTRUCTION DEED OF TRUST
SECURING A CONSTRUCTION LOAN.
The parties to this Deed of Trust With Assignment of Rents, Security
Agreement and Fixture Filing (this "Deed of Trust"), made as of August 7,
1997, are OAKLEY, INC., a Washington corporation as trustor ("Trustor"),
EQUITABLE DEED COMPANY, a California corporation, as trustee ("Trustee"), and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as beneficiary and
secured party ("Beneficiary"). Trustee is a subsidiary of Beneficiary.
Capitalized terms used in this Deed of Trust without definition have
the meanings given them in the Loan Agreement referred to in Section 1.2(c)
hereof.
▇. ▇▇▇▇▇ IN TRUST AND SECURED OBLIGATIONS.
1.1 GRANT IN TRUST. For the purpose of securing payment and performance
of the Secured Obligations defined and described in Section 1.2, Trustor hereby
irrevocably and unconditionally grants, conveys, transfers and assigns to
Trustee, in trust for the benefit of Beneficiary, with power of sale and right
of entry and possession, all estate, right, title and interest which Trustor now
has or may later acquire in and to the following property (all or any part of
such property, or any interest in all or any part of it, together with the
Personalty (as hereinafter defined) being hereinafter collectively referred to
as the "Property"):
(a) the real property located in the County of Orange, State of
California, as described in EXHIBIT A attached hereto (the "Land"), together
with all existing and future easements and rights affording access to the
Land; and
(b) all buildings, structures and improvements now located or
later to be constructed on the Land (the "Improvements"); and
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(c) all existing and future appurtenances, privileges, rights,
easements, and tenements of the Land, including all minerals, oil, gas, other
hydrocarbons and any other commercially valuable substances which may be in,
under or produced from any part of the Land, all development rights and
credits, air rights, water, water rights (whether riparian, appropriative or
otherwise, and whether or not appurtenant), and any land lying in the streets,
roads or avenues, open or proposed, in front of or adjoining the Land and
Improvements; and
(d) all rents, income, revenues, issues and profits of or from
the Land or the Improvements; and
(e) all Fixtures (as that term is hereinafter defined); and
(f) all proceeds, including all claims to and demands for them,
of the voluntary or involuntary conversion of any of the Land, the Improvements
or the other property described above into cash or liquidated claims, including
proceeds of all present and future fire, hazard or casualty insurance policies
and all condemnation awards or payments now or later to be made by any public
body or decree by any court of competent jurisdiction for any taking or in
connection with any condemnation or eminent domain proceeding, and all causes of
action and their proceeds for any damage or injury to the Land, the Improvements
or the other property described above or any part of them, or breach of warranty
in connection with the construction of the Improvements, including causes of
action arising in tort, contract, fraud or concealment of a material fact; and
(g) all additions and accretions to, substitutions and
replacements for, and changes in, any of the property described above.
1.2 SECURED OBLIGATIONS. Trustor makes the grant, conveyance, transfer
and assignment set forth in Section 1.1, makes the irrevocable and absolute
assignment set forth in Article II, and grants the security interest set forth
in Article III, all for the purpose of securing the following obligations in any
order of priority that Beneficiary may choose (collectively, the "Secured
Obligations;" individually, a "Secured Obligation"):
(a) payment of all obligations at any time owing under a
promissory note (the "Note") dated as of even date herewith, payable by Trustor
as maker in the stated principal amount of TWENTY TWO MILLION SEVEN HUNDRED
EIGHTY THOUSAND AND NO/100 DOLLARS ($22,780,000.00) to the order of Beneficiary;
and
(b) payment and performance of all obligations of Trustor under
this Deed of Trust; and
(c) payment and performance of all obligations of Trustor under
a construction, standing, or other loan agreement executed as of even date
herewith, by Trustor as "Borrower" and Beneficiary as "Bank" (the "Loan
Agreement") and under any "Loan Documents" as defined in the Loan Agreement;
provided that this Deed of Trust does not secure any provision in any Loan
Document that is expressly stated to be unsecured; and
(d) payment and performance of all future advances and other
obligations that Trustor or any successor in ownership of all or part of the
Property may agree to pay and/or perform (whether as principal, surety or
guarantor) for the benefit of Beneficiary, when a writing evidences the parties'
agreement that the advance or obligation be secured by this Deed of Trust; and
(e) payment and performance of all modifications, amendments,
extensions, and renewals, however evidenced, of any of the Secured Obligations.
All persons who may have or acquire an interest in all or any part of
the Property will be considered to have notice of, and will be bound by, the
terms of the Secured Obligations and each other agreement or instrument made or
entered into in connection with each of the Secured Obligations. These terms
include any provisions in the Note or the Loan Agreement which permit borrowing,
repayment and reborrowing, or which provide that the interest rate on one or
more of the Secured Obligations may vary from time to time.
2. ASSIGNMENT OF ▇▇▇▇▇▇'S INTEREST IN LEASES AND ASSIGNMENT OF RENTS.
2.1 ABSOLUTE ASSIGNMENT. Trustor hereby irrevocably, absolutely,
presently and unconditionally assigns to Beneficiary:
(a) all of Trustor's right, title and interest in, to and under
any and all leases, licenses and other agreements of any kind relating to the
use or occupancy of all or any portion of the Property, whether now in effect or
entered into in the future (collectively, the "Leases," individually, a
"Lease"), including (i) all guarantees of and security for lessees' performance
under any and all Leases, and (ii) all amendments, extensions, renewals or
modifications to any Leases; and
(b) all rents (and payments in lieu of rents), income, profit,
payments and revenue at any time payable under any and all Leases, any and all
security deposits received or to be received by Trustor pursuant to any and all
Leases, and all rights and benefits accrued or to accrue to Trustor under any
and all Leases (collectively "Rents").
THIS IS AN ABSOLUTE ASSIGNMENT, NOT AN ASSIGNMENT FOR SECURITY ONLY.
2.2 GRANT OF LICENSE. Beneficiary hereby confers upon Trustor a license
(the "License") to collect and retain the Rents as they become due and payable,
so long as no Event of Default, as defined in Section 7.1, shall exist and be
continuing. If an Event of Default has occurred and is continuing,
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Beneficiary shall have the right, which it may choose to exercise in its sole
discretion, to terminate the License without notice to or demand upon Trustor,
and without regard to the adequacy of Beneficiary's security under this Deed of
Trust.
2.3 COLLECTION AND APPLICATION OF RENTS. Subject to the License granted
to Trustor under Section 2.2, Beneficiary has the right, power and authority
to collect any and all Rents. Trustor hereby appoints Beneficiary its
attorney-in-fact to perform any and all of the following acts, if and at the
times when Beneficiary in its sole discretion may so choose:
(a) demand, receive and enforce payment of any and all Rents; or
(b) give receipts, releases and satisfactions for any and all
Rents; or
(c) ▇▇▇ either in the name of Trustor or in the name of
Beneficiary for any and all Rents.
Beneficiary's right to the Rents does not depend on whether or not
Beneficiary takes possession of the Property as permitted under Section 7.2(c).
In Beneficiary's sole discretion, it may choose to collect Rents either with or
without taking possession of the Property. If an Event of Default occurs while
Beneficiary is in possession of all or part of the Property and is collecting
and applying Rents as permitted under this Deed of Trust, Beneficiary, Trustee
and any receiver shall nevertheless be entitled to exercise and invoke every
right and remedy afforded any of them under this Deed of Trust and at law or in
equity, including the right to exercise the power of sale granted under Section
1.1 and Section 7.2(g).
2.4 NOTICE. All lessees under any and all Leases are hereby irrevocably
authorized and notified by Trustor to rely upon and to comply with (and are
fully protected in so doing) any notice or demand by Beneficiary for the payment
to Beneficiary of any rental or other sums which may at any time become due
under the Leases, or for the performance of any of lessees' undertakings under
the Leases, and lessees shall have no right or duty to inquire as to whether any
Event of Default has actually occurred or is then existing hereunder.
2.5 PROCEEDS. Beneficiary has the right to apply all amounts received by
it pursuant to this assignment to pay any of the following in such amounts and
in such order as Beneficiary deems appropriate: (a) any and all Secured
Obligations, together with all costs and attorneys' fees; (b) all expenses of
leasing, operating, maintaining and managing the Property, including without
limitation, the salaries, fees, commissions and wages of a managing agent and
such other employees, agents or independent contractors as Beneficiary deems
necessary or desirable; (c) all taxes, charges, claims, assessments, any other
liens, and premiums for all insurance Beneficiary deems necessary or desirable;
(d) the cost of all alterations, renovations, repairs or replacements, and all
expenses incident to taking and retaining possession of the Property.
2.6 BENEFICIARY NOT RESPONSIBLE. Regardless of whether or not
Beneficiary, in person or by agent, takes actual possession of the Land and
Improvements, Beneficiary is not and will not be deemed to be:
(a) a "mortgagee in possession" for any purpose; or
(b) responsible for performing any of the obligations of Trustor
under any lease; or
(c) responsible for any waste committed by lessees or any other
parties, any dangerous or defective condition of the Property, or any negligence
in the management, upkeep, repair or control of the Property; or
(d) liable in any manner for the Property or the use, occupancy,
enjoyment or operation of all or any part of it.
3. GRANT OF SECURITY INTEREST.
3.1 GRANT OF SECURITY INTEREST. Trustor grants to Beneficiary a security
in, and pledges and assigns to Beneficiary, all of Trustor's right, title and
interest now or hereafter acquired in and to all of the following described
personal property (collectively, the "Personalty"):
(a) all tangible personal property of every kind and
description, whether now existing or later acquired, including, without
limitation, all goods, materials, supplies, tools, books, records, chattels,
furniture, fixtures, equipment and machinery, and, without limiting the
generality of any of the foregoing classifications, including any and all fire
sprinkler, alarm, trash compaction, security, heating ventilation and air
conditioning, electrical, plumbing and any other utility, operations or
maintenance system and any and all components or units thereof, and in all cases
whether attached to, placed in or on, or used in connection with the use,
enjoyment, occupancy or operation of all or any part of, the Land and the
Improvements, whether stored on the Land or elsewhere. Notwithstanding the
foregoing,(i) any goods, materials, supplies, chattels, furniture, fixtures,
equipment or machinery used in connection with Debtor's business and not affixed
in any manner on the Property, and (ii) any tools, books, or records used in
connection with Debtor's business and not related to the occupancy or operation
of all or any part of the Land and the Improvements, are not part of the
collateral described herein; and
(b) all rights to the payment of money, accounts, reserves,
deferred payments, refunds, savings, payments and deposits, whether now or later
to be received from third parties (including all ▇▇▇▇▇▇▇ money sales deposits)
or deposited by Trustor with third parties (including all utility
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deposits) (provided, however, this Deed of Trust does not create a lien on
accounts receivable (other than accounts receivable constituting Rents) arising
in the ordinary course of the business conducted by Trustor on the Property),
contract rights, money, instruments, documents, chattel paper, architectural and
engineering plans, specifications and drawings, and as-built drawings in each
case which arise from or relate to the Land, or the Improvements; and
(c) all rents, income, revenues, issues and profits of or from
the Land or the Improvements (provided, however, this Deed of Trust does not
create a lien on income, revenue, or accounts receivable arising in the ordinary
course of the business conducted by Trustor at the Property); and
(d) all general intangibles and rights relating to the Property,
including, without limitation, all permits, licenses and claims to or demands
for the voluntary or involuntary conversion of any of the Land, the Improvements
or the other property described above into cash or liquidated claims, proceeds
of all present and future fire, hazard or casualty insurance policies and all
condemnation awards or payments now or later to be made by any public body or
decree by any court of competent jurisdiction for any taking or in connection
with any condemnation or eminent domain proceeding, and all causes of action and
their proceeds for any damage or injury to the Land, the Improvements or the
other property described above or any part of them, or breach of warranty in
connection with the construction of the Improvements, including causes of action
arising in tort, contract, fraud or concealment of a material fact; and
(e) all substitutions, replacements, additions, accessions and
proceeds for or to any of the foregoing, and all books, records and files
relating to any of the foregoing, including, without limitation, computer
readable memory and data and any computer software or hardware reasonably
necessary to access and process such memory and data.
3.2 FINANCING STATEMENTS. Trustor must execute one or more financing
statements and such other documents as Beneficiary may from time to time require
to perfect or continue the perfection of Beneficiary's security interest in any
Personalty. Trustor must pay all fees and costs that Beneficiary may incur in
filing such documents in public offices and in obtaining such record searches as
Beneficiary may reasonably require. In case Trustor fails to execute any
financing statements or other documents for the perfection or continuation of
any security interest, Trustor hereby appoints Beneficiary as its true and
lawful attorney-in-fact to execute any such documents on its behalf.
If any financing statement or other document is filed in the records
normally pertaining to personal property, that filing must never be construed as
in any way derogating from or impairing this Deed of Trust or the rights or
obligations of the parties under it.
3.3 POSSESSION AND USE OF COLLATERAL. Except as otherwise provided in
this Deed of Trust or the Loan Agreement, so long as no Event of Default exists
hereunder, Trustor may possess, use, transfer and dispose of any of the
Personalty in the ordinary course of Trustor's business.
3.4 SECURITY AGREEMENT. This Deed of Trust constitutes a security
agreement under the California Uniform Commercial Code covering all Personalty.
3.5 Notwithstanding anything to the contrary herein contained, this Deed
of Trust does not create a lien on income, revenue or accounts receivable
arising in the ordinary course of the business conducted by Trustor located at
the Land and Improvements, except to the extent Trustor's business relating to
the Land and the Improvements consist of leasing, renting, granting licenses,
concessions, or any right or agreements of any kind to use or occupy the Real
Property and Improvements, or any portion thereof, or any other activity of like
nature related to income generated by use or occupancy of the Land and
Improvements. As of the date of this Deed of Trust, Trustor is engaged in the
business of manufacture and distribution of sunglasses, optical protective
▇▇▇▇▇▇▇ for sports headgear and related activities and occupies the Land and
Improvements for the conduct of such business.
4. FIXTURE FILING.
4.1 FIXTURE FILING; DESCRIPTION OF FIXTURES. This Deed of Trust
constitutes a fixture filing under Sections 9313 and 9402 of the California
Uniform Commercial Code, as amended or recodified from time to time, and covers
property which includes goods which are or are to become fixtures on the
Property. "Fixtures" include all articles of personal property now or hereafter
attached to, placed upon for an indefinite term or used in connection with said
real property, appurtenances and improvements, together with all goods and other
property which are or at any time become so related to the Property that an
interest in them arises under real estate law.
5. RIGHTS AND DUTIES OF THE PARTIES.
5.1 REPRESENTATIONS AND WARRANTIES. Trustor warrants that, except as
previously disclosed to Beneficiary in a writing making reference to this
warranty or in the title insurance policy referred to in Section 1.3 of the Loan
Agreement:
(a) Trustor lawfully possesses and holds fee simple title to all
of the Land and the Improvements;
(b) Trustor has or will have good title to all Property other
than the Land and Improvements;
(c) Trustor has the full and unlimited power, right and
authority to encumber the Property;
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(d) this Deed of Trust creates a first and prior lien on the
Property;
(e) the Property includes all property and rights which may be
reasonably necessary or desirable to enable Trustor to use, enjoy and operate
the Land and the Improvements for the present uses thereof;
(f) Trustor owns any Property which is personal property free
and clear of any security agreements, reservations of title or conditional sales
contracts, and there is no presently effective financing statement affecting
such personal property on file in any public office; and
(g) Trustor's place of business, or its chief executive office,
if it has more than one place of business, is located at the address specified
in section 8.12.
5.2 PERFORMANCE OF SECURED OBLIGATIONS. Trustor must promptly pay and
perform each Secured Obligation in accordance with its terms.
5.3 TAXES AND ASSESSMENTS. Trustor must pay prior to delinquency all
taxes, levies, charges and assessments (individually and collectively, an
"Imposition"), imposed by any public or quasi-public authority or utility
company which are (or if not paid, may become) a lien on all or part of the
Property or any interest in it, or which may cause any decrease in the value of
the Property or any part of it. If any such Imposition becomes delinquent,
Beneficiary may require Trustor to present evidence that they have been paid in
full, on ten (10) days' written notice by Beneficiary to Trustor.
Notwithstanding the foregoing provisions of this Section 5.3, Trustor may, at
its expense, contest the validity or application of any Imposition by
appropriate legal proceedings promptly initiated and conducted in good faith and
with due diligence, provided that (i) Beneficiary is reasonably satisfied that
neither the Property nor any part thereof or interest therein will be in danger
of being sold, forfeited, or lost as a result of such contest, and (ii) Trustor
shall have posted a bond or furnished such other security as may be reasonably
required from time to time by Beneficiary.
5.4 LIENS, CHARGES AND ENCUMBRANCES. Trustor must immediately discharge
any lien on the Property which Beneficiary has not consented to in writing or
which is not referenced in the title insurance policy referred to in Section 1.3
of the Loan Agreement. Trustor must pay when due each obligation secured by or
reducible to a lien, charge or encumbrance which now does or later may encumber
or appear to encumber all or part of the Property or any interest in it, whether
the lien, charge or encumbrance is or would be senior or subordinate to this
Deed of Trust. This Section 5.4 is subject to any right granted to Trustor in
Section 2.6 of the Loan Agreement to contest in good faith claims and liens for
labor done and materials and services furnished in connection with construction
of the Improvements.
5.5 DAMAGES AND INSURANCE AND CONDEMNATION PROCEEDS.
(a) Trustor hereby absolutely and irrevocably assigns to
Beneficiary, and authorizes the payor to pay to Beneficiary, the following
claims, causes of action, awards, payments and rights to payment:
(i) all awards of damages and all other compensation
payable directly or indirectly because of a condemnation, proposed condemnation
or taking for public or private use which affects all or part of the Property or
any interest in it; and
(ii) all other awards, claims and causes of action,
arising out of any warranty affecting all or any part of the Property, or for
damage or injury to or decrease in value of all or part of the Property or any
interest in it; and
(iii) all proceeds of any insurance policies payable
because of loss sustained to all or part of the Property; and
(iv) all interest which may accrue on any of the
foregoing.
(b) Trustor must immediately notify Beneficiary in writing if:
(i) any damage occurs or any injury or loss is
sustained in the amount of $100,000.00 or more to all or part of the Property,
or any action or proceeding relating to any such damage, injury or loss is
commenced; or
(ii) any offer is made, or any action or proceeding is
commenced, which relates to any actual or proposed condemnation or taking of all
or part of the Property.
If Beneficiary chooses to do so, it may in its own name appear in or
prosecute any action or proceeding to enforce any cause of action based on
warranty, or for damage, injury or loss to all or part of the Property, and it
may make any compromise or settlement of the action or proceeding. Beneficiary,
if it so chooses, may participate in any action or proceeding relating to
condemnation or taking of all or part of the Property, and may join Trustor in
adjusting any loss covered by insurance.
(c) All proceeds of these assigned claims, other property and
rights which Trustor may receive or be entitled to which exceeds the amount of
$100,000.00 or more must be paid to Beneficiary. In each instance, Beneficiary
must apply those proceeds first toward reimbursement of all of Beneficiary's
costs and expenses of recovering the proceeds, including attorneys' fees.
If, in any instance, each and all of the following conditions are
satisfied in Beneficiary's reasonable judgment, Beneficiary must permit Trustor
to use the balance of the proceeds ("Net Claims Proceeds") to pay costs of
repairing or reconstructing the Property in the manner described below:
5
(i) the plans and specifications, cost breakdown,
construction contract, construction schedule, contractor and payment and
performance bond for the work of repair or reconstruction must all be acceptable
to Beneficiary; and
(ii) Beneficiary must receive evidence satisfactory to
it that after repair or reconstruction, the Property would be at least as
valuable as it was immediately before the damage or condemnation occurred; and
(iii) the Net Claims Proceeds must be sufficient in
Beneficiary's determination to pay for the total cost of repair or
reconstruction, including all associated development costs and interest
projected to be payable on the Secured Obligations until the repair or
reconstruction is complete; or Trustor must provide its own funds in an amount
equal to the difference between the Net Claims Proceeds and a reasonable
estimate, made by Trustor and found acceptable by Beneficiary, of the total cost
of repair or reconstruction; and
(iv) Beneficiary must receive evidence satisfactory to
it that all leases which it may find acceptable will continue after the repair
or reconstruction is complete; and
(v) no Event of Default shall have occurred and be
continuing.
(d) If Beneficiary finds that the foregoing conditions are met,
Beneficiary must hold the Net Claims Proceeds and any funds which Trustor is
required to provide in a noninterest-bearing account and must disburse them to
Trustor to pay costs of repair or reconstruction upon presentation of evidence
reasonably satisfactory to Beneficiary that repair or reconstruction has been
completed satisfactorily and lien-free. However, if Beneficiary finds that one
or more of the conditions are not satisfied, it may apply the Net Claims
Proceeds to pay or prepay (without premium) some or all of the Secured
Obligations in such order and proportions as it in its sole discretion may
choose.
(e) Trustor hereby specifically, unconditionally and irrevocably
waives all rights of a property owner granted under California Code of Civil
Procedure Section 1265.225(a), which provides for allocation of condemnation
proceeds between a property owner and a lienholder, and any other law or
successor statute of similar import.
5.6 MAINTENANCE AND PRESERVATION OF PROPERTY.
(a) Trustor must insure the Property as required by the Loan
Agreement and keep the Property in good condition and repair.
(b) Trustor must not remove or demolish the Improvements, or any
part thereof, or alter or add to the Improvements, or initiate or allow any
change in any zoning or other land use classification which affects the Property
or any part of it, except as permitted or required by the Loan Agreement or with
Beneficiary's express prior written consent in each instance.
(c) If all or part of the Property becomes damaged or destroyed,
Trustor must promptly and completely repair and/or restore the Property in a
good and workmanlike manner in accordance with sound building practices,
regardless of whether or not Beneficiary agrees to disburse insurance proceeds
or other sums to pay costs of the work of repair or reconstruction under Section
5.5.
(d) Trustor must not commit or allow any waste of the Property.
(e) Trustor must perform all other acts which from the
character or use of the Property may be reasonably necessary to maintain and
preserve its value and utility.
5.7 RELEASES, EXTENSIONS, MODIFICATIONS AND ADDITIONAL SECURITY.
(a) From time to time, Beneficiary may perform any of the
following acts without incurring any liability or giving notice to any person:
(i) release any person liable for payment of any
Secured Obligation;
(ii) extend the time for payment, or otherwise alter
the terms of payment, of any Secured Obligation;
(iii) accept additional real or personal property of any
kind as security for any Secured Obligation, whether evidenced by deeds of
trust, mortgages, security agreements or any other instruments of security; or
(iv) alter, substitute or release any property securing
the Secured Obligations.
(b) From time to time when requested to do so by Beneficiary in
writing, Trustee may perform any of the following acts without incurring any
liability or giving notice to any person:
(i) consent to the making of any plat or map of the
Property or any part of it;
(ii) join in granting any easement or creating any
restriction affecting the Property;
6
(iii) join in any subordination or other agreement
affecting this Deed of Trust or the lien of it; or
(iv) reconvey the Property or any part of it without
any warranty.
5.8 RECONVEYANCE. When all of the Secured Obligations have been paid and
performed in full, Beneficiary shall request Trustee in writing to reconvey the
Property, and must surrender this Deed of Trust and all notes and instruments
evidencing the Secured Obligations to Trustee. When Trustee receives
Beneficiary's written request for reconveyance and all fees and other sums owing
to it by Trustor under Section 5.9, Trustee must reconvey the Property, or so
much of it as is then held under this Deed of Trust, without warranty to the
person or persons legally entitled to it. That person or those persons must pay
any costs of recordation. In the reconveyance, the grantee may be described as
"the person or persons legally entitled thereto," and the recitals of any
matters or facts are conclusive proof of their truthfulness. Neither
Beneficiary nor Trustee have any duty to determine the rights of persons
claiming to be rightful grantees of any reconveyance.
5.9 COMPENSATION, EXCULPATION, INDEMNIFICATION.
(a) Trustor agrees to pay fees in the maximum amounts legally
permitted, or reasonable fees as may be charged by Beneficiary and Trustee when
the law provides no maximum limit, for any services that Beneficiary or Trustee
may render in connection with this Deed of Trust, including Beneficiary's
providing a statement of the Secured Obligations or Trustee's rendering of
services in connection with a reconveyance. Trustor must also pay or reimburse
all of Beneficiary's and Trustee's costs and expenses which may be incurred in
rendering any such services. Trustor further agrees to pay or reimburse
Beneficiary for all costs, expenses and other advances which may be incurred or
made by Beneficiary or Trustee in any efforts to enforce any terms of this Deed
of Trust, including any rights or remedies afforded to Beneficiary or Trustee or
both of them under Section 7.2, whether any lawsuit is filed or not, or in
defending any action or proceeding arising under or relating to this Deed of
Trust, including attorneys' fees and other legal costs, costs of any Foreclosure
Sale (as defined in Section 7.2(h)) and any cost of evidence of title. If
Beneficiary chooses to dispose of Property through more than one Foreclosure
Sale, Trustor must pay all costs, expenses or other advances that may be
incurred or made by Trustee or Beneficiary in each of those Foreclosure Sales.
(b) Beneficiary is not directly or indirectly liable to Trustor
or any other person as a consequence of any of the following:
(i) Beneficiary's exercise of or failure to exercise
any rights, remedies or powers granted to it in this Deed of Trust;
(ii) Beneficiary's failure or refusal to perform or
discharge any obligation or liability of Trustor under any agreement related to
the Property or under this Deed of Trust; or
(iii) any loss sustained by Trustor or any third party
resulting from Beneficiary's failure to lease the Property, or from any other
act or omission of Beneficiary in managing the Property, after an Event of
Default, unless the loss is caused by the willful misconduct and bad faith of
Beneficiary.
Trustor hereby expressly waives and releases all liability
of the types described above, and agrees that no such liability be asserted
against or imposed upon Beneficiary.
(c) Trustor agrees to indemnify Trustee and Beneficiary against
and hold them harmless from all losses, damages, liabilities, claims, causes of
action, judgments, court costs, attorneys' fees and other legal expenses, cost
of evidence of title, cost of evidence of value, and other costs and expenses
which either may suffer or incur:
(i) in performing any act required or permitted by
this Deed of Trust or any of the other Loan Documents or by law;
(ii) because of any failure of Trustor to perform any
of the Secured Obligations; or
(iii) because of any alleged obligation of or
undertaking by Beneficiary to perform or discharge any of the representations,
warranties, conditions, covenants or other obligations in any document relating
to the Property other than the Loan Documents.
This agreement by Trustor to indemnify Trustee and
Beneficiary survives the release and cancellation of any or all of the Secured
Obligations and the full or partial release and/or reconveyance of this Deed of
Trust.
(d) Trustor must pay all obligations to pay money arising under
this Section 5.9 immediately upon demand by Trustee or Beneficiary. Each such
obligation must be added to, and considered to be part of, the principal of the
Note, and bears interest from the date the obligation arises at the rate then
being applied to the principal balance of the Note.
5.10 DEFENSE AND NOTICE OF CLAIMS AND ACTIONS. At Trustor's sole expense,
Trustor must protect, preserve and defend the Property and title to and right of
possession of the Property, and the security of this Deed of Trust and the
rights and powers of Beneficiary and Trustee created under it, against all
adverse claims. Trustor must give Beneficiary and Trustee prompt notice in
writing if any claim is asserted which does or could affect any of these
matters, or if any action or proceeding is commenced which alleges or relates to
any such claim.
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5.11 SUBSTITUTION OF TRUSTEE. From time to time, Beneficiary may
substitute a successor to any Trustee named in or acting under this Deed of
Trust in any manner now or later to be provided at law, or by a written
instrument executed and acknowledged by Beneficiary and recorded in the
office(s) of the recorder(s) of the county or counties where the Land and
Improvements are situated. Any such instrument is conclusive proof of the
proper substitution of the successor Trustee, who will automatically upon
recordation of the instrument succeed to all estate, title, rights, powers and
duties of the predecessor Trustee, without conveyance from it.
5.12 SUBROGATION. Beneficiary is subrogated to the liens of all
encumbrances, whether released of record or not, which are discharged in whole
or in part by Beneficiary in accordance with this Deed of Trust or with the
proceeds of any loan secured by this Deed of Trust.
5.13 SITE VISITS, OBSERVATION AND TESTING. Beneficiary and its agents and
representatives have the right to enter and visit the Property at any reasonable
time for the purposes of observing it, performing appraisals, taking and
removing soil or groundwater samples, and conducting tests on any part of it, as
provided in the Loan Agreement.
6. ACCELERATING TRANSFERS.
6.1 ACCELERATION UPON SALE OR ENCUMBRANCE. Trustor agrees that Trustor
shall not, without the prior written consent of Beneficiary (which consent may
be withheld in Beneficiary's sole discretion), make or permit, whether
voluntarily or involuntarily by operation of law or otherwise, any Accelerating
Transfer. Trustor acknowledges that Beneficiary is making one or more advances
under the Loan Agreement in reliance on the expertise, skill and experience of
Trustor; thus, the Secured Obligations include material elements similar in
nature to a personal service contract. Trustor acknowledges the materiality of
the provisions of this Section 6.1 as a covenant of Trustor, given individual
weight and consideration by Beneficiary in extending the Loan, and that any
Accelerating Transfer in violation of the permitted transfer provisions
hereinabove provided shall result in a material impairment of Beneficiary's
interest in the Property and be deemed a breach of the foregoing covenant.
6.2 ACCELERATING TRANSFERS. "Accelerating Transfer" means any sale,
contract to sell, conveyance, encumbrance, pledge, mortgage, lease not expressly
permitted under this Deed of Trust or the Loan Agreement, or other transfer of
all or any material part of the Property or any interest in it, including any
transfer or exercise of any right to drill for or to extract any water (other
than for Trustor's own use), oil, gas, or other hydrocarbon substances or any
mineral of any kind under the surface of the Property, whether voluntary,
involuntary, by operation of law or otherwise. If Trustor is a corporation,
"Accelerating Transfer" also means any transfer or transfers of shares
possessing, in the aggregate, more than fifty percent (50%) of the voting power
or more than fifty percent (50%) of the direct or indirect beneficial ownership
of Trustor. If Trustor is a partnership, "Accelerating Transfer" also means
withdrawal or removal of any general partner, dissolution of the partnership
under California law, or any transfer or transfers of, in the aggregate, more
than fifty percent (50%) of the partnership interests. If Trustor is a limited
liability company, "Accelerating Transfer" also means withdrawal or removal of
any managing member, termination of the limited liability company or any
transfer or transfers of, in the aggregate, more than fifty percent (50%) of the
voting power or in the aggregate more than fifty percent of the ownership of the
economic interest in the Trustor.
7. EVENTS OF DEFAULT; REMEDIES.
7.1 EVENTS OF DEFAULT. Upon the occurrence of any one or more of the
following events, Beneficiary may, by written notice delivered to Trustor,
declare Trustor to be in default, and thereupon the same shall constitute an
"Event of Default" under this Deed of Trust:
(a) An Event of Default is declared under the Loan Agreement or
any other Loan Document; or
(b) Trustor fails to perform any obligation to pay money which
arises under this Deed of Trust and does not cure that failure within ten (10)
days after written notice from Beneficiary or Trustee; or
(c) Trustor makes or permits the occurrence of an Accelerating
Transfer in violation of Section 6.1; or
(d) Any representation or warranty made or given by Trustor in
this Deed of Trust proves to be false or misleading in any material respect; or
(e) Trustor fails to perform any obligation arising under this
Deed of Trust other than as provided in clauses (b) through (d) of Section 7.1,
and does not cure that failure within thirty (30) days after written notice from
Beneficiary or Trustee, or, if the Default cannot be cured in thirty (30) days,
within a reasonable time but not to exceed ninety (90) days after written
notice.
7.2 REMEDIES. At any time after and during the continuance of an Event of
Default, Beneficiary and Trustee shall be entitled to invoke any and all of the
rights and remedies described below. All of such rights and remedies are
cumulative, and the exercise of any one or more of them does not constitute an
election of remedies.
(a) ACCELERATION
Beneficiary may declare any or all of the Secured Obligations to be
due and payable immediately.
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(b) RECEIVER
Beneficiary may apply to any court of competent jurisdiction for, and
obtain appointment of, a receiver for the Property.
(c) ENTRY
Beneficiary, in person, by agent or by court- appointed receiver, may
enter, take possession of, manage and operate all or any part of the Property,
and may also do any and all other things in connection with those actions that
Beneficiary may in its sole discretion consider necessary and appropriate to
protect the security of this Deed of Trust. Such other things may include:
taking and possessing all of Trustor's or the then owner's books and records;
entering into, enforcing, modifying, or cancelling leases on such terms and
conditions as Beneficiary may consider proper; obtaining and evicting tenants;
fixing or modifying rents; collecting and receiving any payment of money owing
to Trustor; completing any unfinished construction; and/or contracting for and
making repairs and alterations. If Beneficiary so requests, Trustor will
assemble all of the Property that has been removed from the Land and make all of
it available to Beneficiary at the site of the Land. Regardless of any
provision of this Deed of Trust or the Loan Agreement, Beneficiary shall not be
considered to have accepted any property other than cash or immediately
available funds in satisfaction of any obligation of Trustor to Beneficiary,
unless Beneficiary has given express written notice of its election of that
remedy in accordance with California Uniform Commercial Code Section 9505, as it
may be amended or recodified from time to time.
(d) CURE; PROTECTION OF SECURITY
Either Beneficiary or Trustee may cure any breach or default of
Trustor, and if it chooses to do so in connection with any such cure,
Beneficiary or Trustee may also enter the Property and/or do any and all other
things which it may in its sole discretion consider necessary and appropriate to
protect the security of this Deed of Trust. Such other things may include:
appearing in and/or defending any action or proceeding which purports to affect
the security of, or the rights or powers of Beneficiary or Trustee under, this
Deed of Trust; paying, purchasing, contesting or compromising any encumbrance,
charge, lien or claim of lien which in Beneficiary's or Trustee's sole judgment
is or may be senior in priority to this Deed of Trust, such judgment of
Beneficiary or Trustee to be conclusive as among the parties to this Deed of
Trust; obtaining insurance and/or paying any premiums or charges for insurance
required to be carried under the Loan Agreement; otherwise caring for and
protecting any and all of the Property; and/or employing counsel, accountants,
contractors and other appropriate persons to assist Beneficiary or Trustee.
Beneficiary and Trustee may take any of the actions permitted under this Section
7.2 either with or without giving notice to any person.
(e) UNIFORM COMMERCIAL CODE REMEDIES
Beneficiary may exercise any or all of the remedies granted to a
secured party under the California Uniform Commercial Code.
(f) JUDICIAL ACTION
Beneficiary may bring an action in any court of competent jurisdiction
to foreclose this instrument or to obtain specific enforcement of any of the
covenants or agreements of this Deed of Trust.
(g) POWER OF SALE
Under this power of sale, Beneficiary has the discretionary right to
cause some or all of the Property, including any Property which constitutes
personal property, to be sold or otherwise disposed of in any combination and in
any manner permitted by applicable law.
(i) Sales of Personal Property
For purposes of this power of sale, Beneficiary may
elect to treat as personal property any Property which is intangible or which
can be severed from the Land or Improvements without causing structural
damage. If it chooses to do so, Beneficiary may dispose of any personal
property separately from the sale of real property, in any manner permitted by
Division 9 of the California Uniform Commercial Code, including any public or
private sale, or in any manner permitted by any other applicable law. Any
proceeds of any such disposition shall not cure any Event of Default or
reinstate any Secured Obligation for purposes of Section 2924c of the
California Civil Code.
In connection with any sale or other disposition of
such Property, Trustor agrees that the following procedures constitute a
commercially reasonable sale:
Beneficiary must mail written notice of the sale to
Trustor not later than forty-five (45) days prior to such sale. Once per week
during the four weeks immediately preceding such sale, Beneficiary must
publish notice of the sale in a local daily newspaper of general circulation.
Upon receipt of any written request, Beneficiary must make the Property
available to any bona fide prospective purchaser for inspection during
reasonable business hours. Notwithstanding, Beneficiary is under no obligation
to consummate a sale if, in its judgment, none of the offers received by it
equals the fair value of the Property offered for sale. The foregoing
procedures do not constitute the only procedures that may be commercially
reasonable.
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(ii) Trustee's Sales of Real Property or Mixed Collateral
Beneficiary may choose to dispose of some or all of
the Property which consists solely of real property in any manner then
permitted by applicable law. In its discretion, Beneficiary may also or
alternatively choose to dispose of some or all of the Property, in any
combination consisting of both real and personal property, together in one
sale to be held in accordance with the law and procedures applicable to real
property, as permitted by Section 9501(4) of the California Uniform Commercial
Code. Trustor agrees that such a sale of personal property together with real
property constitutes a commercially reasonable sale of the personal property.
For purposes of this power of sale, either a sale of real property alone, or a
sale of both real and personal property together in accordance with California
Uniform Commercial Code Section 9501(4), will sometimes be referred to as a
"Trustee's Sale."
Before any Trustee's Sale, Beneficiary or Trustee
must give such notice of default and election to sell as may then be required
by law. When all time periods then legally mandated have expired, and after
such notice of sale as may then be legally required has been given, Trustee
must sell the property being sold at a public auction to be held at the time
and place specified in the notice of sale. Neither Trustee nor Beneficiary
have any obligation to make demand on Trustor before any Trustee's Sale. From
time to time in accordance with then applicable law, Trustee may, and in any
event at Beneficiary's request must, postpone any Trustee's Sale by public
announcement at the time and place noticed for that sale.
At any Trustee's Sale, Trustee must sell to the
highest bidder at public auction for cash in lawful money of the United
States. Trustee must execute and deliver to the purchaser(s) a deed or deeds
conveying the property being sold without any covenant or warranty whatsoever,
express or implied. The recitals in any such deed of any matters or facts,
including any facts bearing upon the regularity or validity of any Trustee's
Sale, are conclusive proof of their truthfulness. Any such deed shall be
conclusive against all persons as to the facts recited in it.
(h) Single or Multiple Foreclosure Sales
If the Property consists of more than one lot, parcel or
item of property, Beneficiary may:
(i) designate the order in which the lots, parcels
and/or items shall be sold or disposed of or offered for sale or disposition;
and
(ii) elect to dispose of the lots, parcels and/or items
through a single consolidated sale or disposition to be held or made under the
power of sale granted in Section 7.2(g), or in connection with judicial
proceedings, or by virtue of a judgment and decree of foreclosure and sale; or
through two or more such sales or dispositions; or in any other manner
Beneficiary may deem to be in its best interests (any such sale or
disposition, a "Foreclosure Sale;" any two or more, "Foreclosure Sales").
If it chooses to have more than one Foreclosure Sale,
Beneficiary at its option may cause the Foreclosure Sales to be held
simultaneously or successively, on the same day, or on such different days and
at such different times and in such order as it may deem to be in its best
interests. No Foreclosure Sale will terminate or affect the liens of this Deed
of Trust on any part of the Property which has not been sold, until all of the
Secured Obligations have been paid in full.
7.3 CREDIT BIDS. At any Foreclosure Sale, any person, including Trustor,
Trustee or Beneficiary, may bid for and acquire the Property or any part of it
to the extent permitted by then applicable law. Instead of paying cash for that
property, Beneficiary may settle for the purchase price by crediting the sales
price of the property against the following obligations:
(a) first, the portion of the Secured Obligations attributable
to the expenses of sale, costs of any action and any other sums for which
Trustor is obligated to pay or reimburse Beneficiary or Trustee under Section
5.9; and
(b) second, all other Secured Obligations in any order and
proportions as Beneficiary in its sole discretion may choose.
7.4 APPLICATION OF FORECLOSURE SALE PROCEEDS. Beneficiary and Trustee
shall apply the proceeds of any Foreclosure Sale in the following manner:
(a) first, to pay the portion of the Secured Obligations
attributable to the expenses of sale, costs of any action and any other sums for
which Trustor is obligated to reimburse Beneficiary or Trustee under Section
5.9;
(b) second, to pay the portion of the Secured Obligations
attributable to any sums expended or advanced by Beneficiary or Trustee under
the terms of this Deed of Trust which then remain unpaid;
(c) third, to pay all other Secured Obligations in any order and
proportions as Beneficiary in its sole discretion may choose; and
(d) fourth, to remit the remainder, if any, to the person or
persons entitled to it.
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7.5 APPLICATION OF RENTS AND OTHER SUMS. Beneficiary must apply any and
all Rents collected by it pursuant to the assignment provided in ARTICLE II of
this Deed of Trust, and any and all other sums, other than the proceeds of a
Foreclosure Sale, received or collected by Beneficiary, in the following manner:
(a) first, to pay the portion of the Secured Obligations
attributable to the costs and expenses of collection of such sums, including
reasonable attorneys' fees, that may be incurred by Beneficiary, Trustee and/or
any receiver appointed in accordance with this Deed of Trust;
(b) second, to pay any and all Secured Obligations other than
provided in clause (a) above, and any and all expenses of leasing, operating,
maintaining and managing the Property and all other costs and charges incident
to the Property as provided in Section 2.5 above, and in such order and
proportions as Beneficiary in its sole discretion may choose; and
(c) third, to remit the remainder, if any, to the person or
persons entitled thereto.
Beneficiary has no liability for any funds which it does not actually receive.
8. MISCELLANEOUS PROVISIONS.
8.1 ADDITIONAL PROVISIONS. The Loan Documents fully state all of the
terms and conditions of the parties' agreement regarding the matters mentioned
in or incidental to this Deed of Trust. The Loan Documents also grant further
rights to Beneficiary and contain further agreements and affirmative and
negative covenants by Trustor which apply to this Deed of Trust and to the
Property.
8.2 NO WAIVER OR CURE. Each waiver by Beneficiary or Trustee must be in
writing, and no waiver is to be construed as a continuing waiver. No waiver is
to be implied from any delay or failure by Beneficiary or Trustee to take action
on account of any default of Trustor. Consent by Beneficiary or Trustee to any
act or omission by Trustor must not be construed as a consent to any other or
subsequent act or omission or to waive the requirement for Beneficiary's or
Trustee's consent to be obtained in any future or other instance.
8.3 POWERS OF BENEFICIARY AND TRUSTEE.
(a) Trustee has no obligation to perform any act which it is
empowered to perform under this Deed of Trust unless it is requested to do so in
writing and is reasonably indemnified against loss, cost, liability and expense.
(b) If either Beneficiary or Trustee performs any act which it
is empowered or authorized to perform under this Deed of Trust, including any
act permitted by Section 5.7 or Section 7.2(d), that act alone does not release
or change the personal liability of any person for the payment and performance
of the Secured Obligations then outstanding, or the lien of this Deed of Trust
on all or the remainder of the Property for full payment and performance of all
outstanding Secured Obligations. The liability of the original Trustor does not
release or change if Beneficiary grants any successor in interest to Trustor any
extension of time for payment, or modification of the terms of payment, of any
Secured Obligation. Beneficiary is not required to comply with any demand by
the original Trustor that Beneficiary refuse to grant such an extension or
modification to, or commence proceedings against, any such successor in
interest.
(c) Beneficiary may take any of the actions permitted under
Sections 7.2(b) and/or 7.2(c) regardless of the adequacy of the security for the
Secured Obligations, or whether any or all of the Secured Obligations have been
declared to be immediately due and payable, or whether notice of default and
election to sell has been given under this Deed of Trust.
8.4 MERGER. No merger occurs as a result of Beneficiary's acquiring any
other estate in or any other lien on the Property unless Beneficiary consents to
a merger in writing.
8.5 JOINT AND SEVERAL LIABILITY. If Trustor consists of more than one
person, each is jointly and severally liable for the faithful performance of all
of Trustor's obligations under this Deed of Trust.
8.6 APPLICABLE LAW. This Deed of Trust is governed by California law.
This Deed of Trust may be executed in one or more counterparts, each of which
is, for all purposes deemed an original and all such counterparts taken
together, constitute one and the same instrument.
8.7 SUCCESSORS IN INTEREST. The terms, covenants and conditions of this
Deed of Trust are binding upon and inure to the benefit of the heirs, successors
and assigns of the parties. However, this Section 8.7 does not waive the
provisions of Section 6.1.
8.8 INTERPRETATION. Whenever the context requires, all words used in the
singular will be construed to have been used in the plural, and vice versa, and
each gender will include any other gender. The captions of the sections of this
Deed of Trust are for convenience only and do not define or limit any terms or
provisions. The word "include(s)" means "include(s), without limitation", and
the word "including" means "including, but not limited to". The word
"obligations" is used in its broadest and most comprehensive sense, and includes
all primary, secondary, direct, indirect, fixed and contingent obligations. It
further includes all principal, interest, prepayment charges, late charges, loan
fees and any other fees and charges accruing or assessed at any time, as well as
all obligations to perform acts or satisfy conditions. No listing of specific
instances, items or matters in any way limits the scope
11
or generality of any language of this Deed of Trust. The Exhibits to this Deed
of Trust are hereby incorporated in this Deed of Trust. Any capitalized words
which are defined in the Loan Agreement are used in this Deed of Trust as so
defined.
8.9 IN-HOUSE COUNSEL FEES. Whenever Trustor is obligated to pay or
reimburse Beneficiary or Trustee for any attorneys' fees, those fees shall
include the allocated costs for services of in-house counsel.
8.10 WAIVER OF MARSHALLING. Trustor waives all rights, legal and
equitable, it may now or hereafter have to require marshalling of assets or to
require upon foreclosure sales of assets in a particular order, including any
rights provided by California Civil Code Sections 2899 and 3433, as such
Sections may be amended from time to time. Each successor and assign of
Trustor, including any holder of a lien subordinate to this Deed of Trust, by
acceptance of its interest or lien agrees that it shall be bound by the above
waiver, as if it had given the waiver itself.
8.11 SEVERABILITY. If any provision of this Deed of Trust should be held
unenforceable or void, that provision shall be deemed severable from the
remaining provisions and in no way affect the validity of this Deed of Trust
except that if such provision relates to the payment of any monetary sum, then
Beneficiary may, at its option, declare all Secured Obligations immediately due
and payable.
8.12 NOTICES. Any Trustor whose address is set forth below hereby requests
that a copy of notice of default and notice of sale be mailed to it at that
address. If any Trustor fails to insert an address, that failure shall
constitute a designation of Trustor's last known address as the address for such
notice.
Address Where Notices
to Trustor(s)
Are to be Sent:
27801 Icon
Foothill Ranch, CA 92610-3000
Address Where Address Where
Notices to Beneficiary Notices to Trustee
Are to be Sent: Are to be Sent:
Bank of America National Equitable Deed Company, #8699
Trust and Savings Association Commercial Division
P.O. Box 3609 ▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or
P. O. Box 2924, Terminal Annex
Los Angeles, California 90051
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇ has executed this Deed of Trust as of the date first
above written.
TRUSTOR:
OAKLEY, INC.,
a Washington corporation
By:
------------------------------
Name:
------------------------------
Its:
------------------------------
By:
------------------------------
Name:
------------------------------
Its:
------------------------------
[ALL SIGNATURES MUST BE ACKNOWLEDGED]
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Exhibit A to DEED OF TRUST executed as May 28, 1997, by ▇▇▇▇▇▇, INC.,
a Washington corporation as "Trustor" to Equitable Deed Company as "Trustee" for
the benefit of Bank of America National Trust and Savings Association, a
national banking association as "Beneficiary."
DESCRIPTION OF PROPERTY
THE FOLLOWING LAND SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF
ORANGE, DESCRIBED AS FOLLOWS:
PARCEL 1:
LOT 1 AND LETTERED LOT B OF TRACT NO. 14951, AS SHOWN ON A MAP FILED IN BOOK
713, PAGES 33 TO 43 INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY,
CALIFORNIA.
PARCEL 2:
EASEMENTS AND RIGHTS AS SET FORTH IN THE SECTIONS ENTITLED "EASEMENTS FOR
OWNERS", "UTILITIES AND CABLE TELEVISION", "TRAIL SYSTEM EASEMENTS" AND "SURFACE
DRAINAGE" OF THE ARTICLE ENTITLED "EASEMENTS AND RIGHTS" AND IN THE SECTION
ENTITLED "ENFORCEMENT" OF THE ARTICLE ENTITLED "GENERAL PROVISIONS" OF THE
COVENANTS, CONDITIONS AND RESTRICTIONS, RECORDED APRIL 30, 1992 AS INSTRUMENT
NO. 92-283832 OF OFFICIAL RECORDS.
EXCEPTING THEREFROM ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS,
NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL
STEAM, AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR
UNDER THE PARCEL OF LAND HEREINABOVE DESCRIBED, TOGETHER WITH THE PERPETUAL
RIGHT OF DRILLING, MINING, EXPLORING, AND OPERATING THEREFOR, AND STORING IN AND
REMOVING THE SAME FROM SAID LAND OR ANY OTHER LAND, INCLUDING THE RIGHT TO
WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE
HEREINABOVE DESCRIBED, OIL OR GAS ▇▇▇▇▇, TUNNELS AND SHAFTS INTO, THROUGH OR
ACROSS THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED ▇▇▇▇▇, TUNNELS AND SHAFTS UNDER AND BENEATH
OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP,
MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH ▇▇▇▇▇ OR MINES, WITHOUT, HOWEVER,
THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE
UPPER 500 FEET TO THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED, AS RESERVED
IN THE DEED RECORDED APRIL 3, 1995 AS INSTRUMENT NO. ▇▇-▇▇▇▇▇▇▇ OF OFFICIAL
RECORDS.
A.P.N.: ▇▇▇-▇▇▇-▇▇
STREET ADDRESS OF PROPERTY:
27801 Icon, Foothill Ranch, California
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State of California )
)
County of )
)
On _________________________, 19___ before me, a Notary Public in and
for said State, personally appeared__ ________________________________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
----------------------------------------------
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