ATTACHMENT NO. 7
ATTACHMENT NO. 7
AMERICAN RESCUE PLAN ACT (ARPA)
DEED OF TRUST
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO: )
)
)
City of Riverside )
3900 Main Street )
Riverside, CA 92522 )
Attn: Housing Project Manager )
)
Project: Oaktree Apartments )
(Space above for Recorder’s Use Only)
This document is exempt from the payment of a recording fee pursuant to Government Code Section 27383.
AMERICAN RESCUE PLAN ACT (ARPA)
DEED OF TRUST, FIXTURE FILING AND ASSIGNMENT OF RENTS
THIS DEED OF TRUST, FIXTURE FILING AND ASSIGNMENT OF RENTS (“Deed of Trust”) is made as of Septembe r_____, 202 5, by RIVERSIDE HOUSING DEVELOPMENT CORPORATION, a California nonprofit public benefit corporation (“Trustor”), whose address is 4250 Brockton Avenue, Riverside, CA 92501 Wilshi re Boulevard, Suite #700, Los Angeles, CA 90010; to Commonwealth Land Title Company, located at 3480 Vine Street, Suite 300, Riverside, CA 92507 (“Trustee”), for the benefit of the CITY OF RIVERSIDE, a California charter city and municipal corporation (“Beneficiary”).
THIS DEED OF TRUST is given, inter alia, for the purpose of securing the obligation of Trustor to repay Beneficiary all principal and interest due under that certain loan in the amount of Six Hundred Forty-Four Thousand Three Hundred Eighty-Four Dollars and Sixty-Five Cents ($644,384.65) made by Beneficiary (“ARPA Loan”) evidenced by that certain ARPA Promissory Note of even date herewith (“ARPA Promissory Note”) and made in accordance with that certain American Rescue Plan Act Loan Agreement by and between the City and the Borrower, dated for identification purposes only as of Septem ber _______, 2025(“ARPA Loan Agreement”) and the performance of Trustor’s obligations thereunder and under this ARPA Deed of Trust and the ARPA Regulatory Agreement as hereinafter defined. The ARPA Loan shall be made in connection with the acquisition and assembly of certain real property and predevelopment and rehabilitation activities of fifty (50) units plus one manager’s unit and any improvements appurtenant thereto by the Trustor in accordance with the ARPA Loan Agreement (“Project”). The real property is located at 1946 Seventh Street, in the City of Riverside, State of California and further identified as Assessor Parcel No. (APN) 211-176-019 , as mo re particularly described in Exhibit “A” attached hereto and by this reference incorporated herein (“Property”).
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FOR GOOD AND VALUABLE CONSIDERATION, including the financial assistance herein recited and the trust herein created, the receipt of which is here by acknowledged, Trustor hereby irrevocably grants, transfers, conveys and assigns to Trustee, IN TRUST, WITH POWER OF SALE, for the benefit and security of Beneficiary, under and subject to the terms and conditions hereinafter set forth, the Property;
TOGETHER WITH any and all buildings and improvements now or hereafter erected on the Property including, without limitation, Trustor’s in terest in fixtures, te nements, attachments, appliances, equipment, building systems, machinery, and other articles now or hereafter attached to the buildings and improvements (collectively, “Improvements”), all of which shall be deemed and construed to be a part of the real property;
TOGETHER WITH all earnings, rents, issues, profits, revenue, royalties, income, proceeds and other benefits, including wit hout limitation prepaid rents and s ecurity deposits (collectively, “Rents”) derived from any lease, sublease, licen se, franchise or conce ssion or other agreement (collectively, “Leases”) now or hereafter affect ing all or any portion of the Property or the Improvements or the use or occupancy thereof;
TOGETHER WITH all interests, estates or other claims, both in law and in equity, which Trustor now has or may hereafter acquire in the Property or the Improvements, including without limitation, all right, title and interest now owned or hereafter acquired by Trustor in and to any greater estate in the Property or the Improvements;
TOGETHER WITH all easements, tenements, hereditaments, appur tenances, rights-of- way and rights now owned or hereafter acquired by Trustor used or useful in connection with the Property or as a means of access thereto, including, without limiting the generality of the foregoing, all rights pursuant to any trackage agreement and all rights to the nonexclusive use of common drive entries, all oil and gas and other hydrocarbons and all ot her minerals and water and water rights and shares of stock evidencing the same;
TOGETHER WITH all leasehold estate, right, title and interest of Trustor in and to all leases, subleases, subtenancies, licenses, franchises, occupancy agreements and other agreements covering the Property, the Improvements or any portion thereof now or hereafter existing or entered into, and all right, title and interest of Trustor thereunder, including, without limitation, all cash or security deposits, prepaid or advance rentals, and deposits or payments of similar nature;
TOGETHER WITH all right, title and interest of Trustor, now owned or hereafter acquired in and to any Property lying within the right-of-way of any street, open or proposed, adjoining the Property and any and a ll sidewalks, vaults, alloys and strips and gores of property adjacent to or used in connection with the Property;
TOGETHER WITH all the estate, interest, right, title, other claim or demand, both in law and in equity, including claims or demands with respect to the proceeds of insurance in effect with respect to the Property, which Trustor now has or may hereafter acquire in the Property or the Improvements and any and all awards made for the taking by eminent domain, or by any ATTACHMENT NO. 7
proceeding of purchase in lieu thereof, of the whole or any part of the interests described in this Deed of Trust, including, without limitation, any awards resulting from a change of grade of streets and awards for severance damages.
The entire estate, property and interest he reby conveyed to Trustee may hereafter be collectively referred to as the “Trust Estate”.
FOR THE PURPOSE OF SECURING:
(a) the payment of the sum of Six Hundred Forty-Four Thousand Three Hundred Eighty-Four Dollars and Sixty-Five Cents ($644,384.65), or so much of such principal as may be disbursed pursuant to the ARPA Promissory Note, with non-compounding simple interest at 3.0% per annum according to the terms of the ARPA Promissory Note, and any and all additions, modifications or extensions thereof;
(b) performance of every obligation, covenant and agreement of Trustor contained in the Agreement, the Note, and th at certain ARPA Regulatory Agreement by and between Trustor and Beneficiary dated and record ed concurrently herewith (“ARPA Regulatory Agreement”) which includes among other covenants and restrictions, covenants of affordability, maintenance of the Project and restrictions on transfer of Own ership of the Project and all modifications, extensions, renewa ls, and replacements thereof or any other agreement now or hereafter executed by Trustor which recites that the obligations thereunder are secured by this ARPA Deed of Trust and the ARPA Notice of Default (collectively, “ARPA Loan Documents”);
(c) payment of all sums advanced by Be neficiary or its successors and assigns, or Trustee, to enforce the ARPA Promissory Note, the ARPA Loan Agreement, the ARPA Regulatory Agreement or this ARPA Deed of Trus t to protect the Trust Estate upon an Event of Default, with interest thereon at the rate of ten percent (10%) per annum (“Default Rate”) pursuant to the terms of the Note;
(d) payment and performance of all othe r obligations of Trustor arising from any and all existing and future agreements with Beneficiary, or its successors or assigns, when such agreement recites that the obligations thereunder are secured by this ARPA Deed of Trust.
All initially capitalized terms used herein which are defined in the ARPA Agreement shall have the same meaning herein unless the context otherwise requires.
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR HEREBY COVENANTS AND AGREES AS FOLLOWS:
ARTICLE 1.
COVENANTS AND AGREEMENTS OF TRUSTOR
1.1 Payment of Secured Obligations. Trus tor shall immediately pay when due all amounts secured hereby.
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1.2 Maintenance, Repair, Altera tions. Subject to normal wear and tear, Trustor (a) shall keep the Property and the Improvements thereon in good condition and repair in accordance with the ARPA Loan Documents, including without limitation the ARPA Regulatory Agreement; (b) shall not remove, demolish or s ubstantially alter any of the Improvements except upon the prior written consent of Beneficiary; (c) shall complete promptly and in a good and workmanlike manner any Improvement which may be now or hereafter c onstructed on the Property and promptly restore in like manne r any portion of the Improvement s which may be damaged or destroyed thereon from any cause whatsoever, and pay when due all claims for labor performed and materials furnished therefore; (d) shall comply in all material respects with all applicable laws, ordinances, regulations, covenants, conditions and restrictions now or hereafter affecting the Trust Estate or any part thereof or requiring any alterations or improvements; (e) shall not commit or permit any waste or deterioration of the Property or the Improvements; (f) shall not allow changes in the use for which all or any part of the Prope rty or the Improvements were intended; and (g) shall not initiate or acquiesce in a change in the zoning classification of the Property and the Improvements without Beneficiary’s prior writte n consent, which shall not be unreasonably withheld, conditioned, or delayed.
1.3 Required Insurance.
(a) Trustor shall at all times provide, maintain and keep in force or cause to be provided, maintained and kept in force, at no expense to Trustee or Beneficiary, policies of insurance in accordance with the terms of the ARPA Loan Documents in form and amounts, providing for deductibles, and issued by companies, associations or orga nizations covering such casualties, risks, perils, liabilities and other hazards as required by the ARPA Loan Documents or by Beneficiary pursuant thereto.
(b) Trustor shall not obtain separate insurance concurrent in form or contributing in the event of loss with that required to be maintained hereunder unless Beneficiary is included thereon under a standard, non-cont ributory mortgagee clau se or endorsement acceptable to Beneficiary. Trustor shall immediately notify Beneficiary whenever any such separate insurance is obtained a nd shall promptly deliver to Bene ficiary the original policy or policies of such insurance.
(c) Within ninety (90) calendar days following the end of each fiscal year of Trustor, at the request of Beneficiary, Trustor at Trustor’s expense shall furnish such evidence of replacement costs as the insurance carrier providing casualty insurance for the building(s) and other improvements on the Property may require to determine, or which such carrier may provide in determining, the then replacement cost of the building(s) and ot her improvements on the Property.
1.4 Delivery of Policies, Payment of Premiums.
(a) At Beneficiary’s option Trustor shall furnish Beneficiary with a copy of all policies of insurance required under Section 1.3 above or evidence of insurance issued by the applicable insurance company for each required policy setting forth the coverage, the limits of ATTACHMENT NO. 7
liability, the name of the carrier, the policy numbe r and the period of coverage, and otherwise in form and substance satisfactory to Beneficiary in all respects. (b) In the event Trustor fails to provide, maintain, keep in force or deliver to Beneficiary the policies of insu rance required by this Deed of Trust or by any ARPA Loan Documents, Beneficiary may (but shall have no obligation to) pr ocure such insurance or single- interest insurance for such risks covering Beneficiary’s interest and Trustor will pay all premiums thereon and reimburse Beneficiary for all amounts paid or incurre d by it in connection therewith promptly upon demand by Beneficiar y and, until such payment and reimbursement is made by Trustor, the amount of all such premiums and amounts paid or incurred by Beneficiary shall become indebtedness secured by this ARPA Deed of Trust and bear interest at the Default Rate.
Following an Event of Default for failure to maintain insurance in accordance with this Section
1.4 and upon written request by Beneficiary, and subject to any subordination agreement between the City and a senior lender, Trustor shall deposit with Beneficiary in monthly installments, an amount equal to 1/12 of the estimated aggregate annual insurance premiu ms on all policies of insurance required by the ARPA Loan Documents or this ARPA Deed of Trust. In such event Trustor further agrees to cause all bills, statements or other documents relating to the foregoing insurance premiums to be sent or mailed directly to Beneficiary. Upon receipt of such bills, statements or other documents evidencing that a premium for a required po licy is then payable, and providing Trustor has deposited sufficient funds with Beneficiary pursuant to this Section 1.4, Beneficiary shall timely pay such amounts as may be due thereunder out of the funds so deposited with Beneficiary. If at any time and for any reason the funds deposited with Beneficiary are or will be insufficient to pay such amounts as may be th en or subsequently due, Beneficiary shall notify Trustor and Trustor shall immediately deposit an amount equal to such deficiency with Beneficiary. Notwithstanding the foregoing, nothing contained herein shall cause Beneficiary to be deemed a trustee of the funds or to be obligated to pay any amounts in excess of the amount of funds deposited with Beneficiary pursuant to this Section 1.4, nor shall anything contained herein modify the obligation of Trustor set forth in Section 1.3 hereof to maintain and keep such insurance in force at all times. Beneficiary may commingle the reserve with its own funds and Trustor shall be entitled to no interest thereon.
1.5 Casualties; Insurance Proceeds. Trustor shall give prompt written notice thereof to Beneficiary after the happening of any casualty to or in c onnection with the Property, the Improvements, or any part thereof, whether or not covered by insurance subject to the provisions of any senior liens, in the event of such casualty , all proceeds of insurance shall be payable to Beneficiary up to the outstanding balance of the ARPA Loan, whether required by the ARPA Loan Documents or otherwise, and Trustor hereby authorizes and directs any affected insurance company to make payment of such proceeds directly to Beneficiary. Subject to any subordination agreement between the City and a senior lender, if Trustor receives any proceeds of insurance resulting from such casualty, whether required by the ARPA Loan Documents or otherwise, Trustor shall promptly pay over such proceeds to Beneficiary up to the outstanding balance of the ARPA Loan, except where the insurance proceeds for such casualty are less than $150,000.
Beneficiary is hereby authorized and is empowered by Trustor to settle, adjust or compromise any and all claims for loss, damage or destruction un der any policy or policies of insurance. In the event of any damage or destruction of the Property or the Improv ements, Beneficiary shall apply all loss proceeds remaining after deduction of all expenses of collection and settlement thereof, ATTACHMENT NO. 7
including, without limitation, reasonable fees and e xpenses of attorneys and adjustors, to the restoration of the Improvements, but only as repa irs or replacements are effected and continuing expenses become due and payabl e and provided all applicable c onditions specified in the ARPA Loan Documents with respect thereto have been sa tisfied. If any one or more of such conditions in the ARPA Loan Documents has not been met, Be neficiary shall not be obligated to make any further disbursements pursuant to the ARPA Promissory Note and Beneficiary shall apply all loss proceeds up to the outstanding balance of the ARPA Loan, after deductions as herein provided, to the repayment of any indebtedness thereunder, together with all accrued interest thereon, notwithstanding that the outstanding balance may not be due and payable and the Agreement shall terminate. Nothing herein cont ained shall be deemed to excu se Trustor from repairing or maintaining the Property and the Improvements as provided in Section 1.2 hereof or restoring all damage or destruction to the Property or the Improvements, regardless of whether or not there are insurance proceeds available to Trustor or whether any such proceeds are sufficient in amount, and the application or release by Beneficiary of any insurance proceeds shall not cure or waive any Event of Default nor any notice of default under this ARPA Deed of Trust or invalidate any act done pursuant to such notice.
1.6 Indemnification; Subroga tion; Waiver of Offset.
(a) If Beneficiary is made a party to any litigation concerning this ARPA Deed of Trust or any of the ARPA Loan Documents, the Trust Estate or any part thereof or interest therein, or the occupancy of the Property or th e Improvements by Trustor, then Trustor shall indemnify, defend and hold Beneficiary harmless from all liability by reason of that litigation, including reasonable attorneys’ fees and expenses incurred by Beneficiary as a result of any such litigation, whether or not any such litigation is pros ecuted to judgment, except to the extent that such liability is caused by the gross negligence or willful misconduct of Beneficiary. Beneficiary may employ an attorney or attorneys selected by it to protect its rights hereunder, and Trustor shall pay to Beneficiary reasonable attorneys’ fees and costs incurred by Beneficiary, whether or not an action is actually commenced against Trustor by reason of its breach.
(b) Trustor waives any and all right to claim or recover against Trustee, Beneficiary, and their respective officers, employ ees, agents and representatives, for loss of or damage to Trustor, the Trust Es tate, Trustor’s property or the property of others under Trustor’s control from any cause insured against or required to be insured against by the provisions of this ARPA Deed of Trust, except to the extent such claim is caused by the gross negligence or willful misconduct of Trustee or Beneficiary.
(c) All sums payable by Trustor in accordance with the terms of this ARPA Deed of Trust, the ARPA Promissory Note or the Agreement shall be paid upon notice and demand and without counterclaim, seto ff, deduction or defense and w ithout abatement, suspension, deferment, diminution or reduction, and the obligations and liab ilities of Trustor hereunder shall in no way be released, discharged or otherwise affected (except as expressly provided herein) by reason of: (i) any damage to or destruction of or any condemnation or similar taking of the Trust Estate or any part thereof; (ii) any restriction or prevention of or interference by any third party with any use of the Trust Estate or any part thereof; (iii) any title defect or encumbrance or any eviction from the Improvements or any part ther eof by title paramount or otherwise; (iv) any ATTACHMENT NO. 7
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceeding relating to Benefici ary, or any action taken with re spect to this ARPA Deed of Trust by any trustee or receiver of Beneficiary, or by any court, in any such proceeding; (v) any claim which Trustor has or might have against Beneficiary, which does not relate to the ARPA Loan; or (vi) any other occurrence whatsoever, whether similar or dissimilar to the foregoing; whether or not Trustor shall have notice or knowledge of any of the foregoing. Except as expressly provided herein and subject to any limitation thereon provided by law, Trustor waives all rights now or hereafter conferred by statute or othe rwise to any abatement, suspension, deferment, diminution or reduction of any sum secured hereby and payable by Trustor.
1.7 Taxes and Impositions.
(a) As used herein, “Impositions” shall m ean all applicable real property taxes and assessments, general and specia l, and all other taxes and asse ssments of any kind or nature whatsoever, including, without limitation, nongovernme ntal levies or assessments such as maintenance charges, levies or charges resulti ng from covenants, conditi ons and restrictions affecting the Trust Estate, which are assessed or imposed upon the Trust Estate or any portion of it, or become due and payable, and which creat e, may create or appear to create a lien upon the Trust Estate, or any part thereof, or upon any person, property, equipment or other facility used in the operation or maintenance thereof, or any tax or assessment on th e Trust Estate, or any part of it, in lieu thereof or in addition thereto, or any license fee, tax or assessment imposed on Beneficiary and measured by or based in whole or in part upon the amount of the outstanding obligations secured hereby. Trustor shall pay all Impositions prior to delinquency. Trustor shall deliver to Beneficiary proof of the payment of the Impositions with in thirty (30) calendar days after such Impositions are due.
(b) After an Event of Default that remains uncured by Trustor after any applicable notice and cure pe riod, and upon written request by Be neficiary, and subject to any subordination agreement between the City and a seni or lender, Trustor sha ll pay to Beneficiary, unless the Property and Improveme nts have received an ad va lorem property tax exemption pursuant to subdivision (f) or (g) of Section 214 of the California Revenue and Taxation Code, an initial cash reserve in an amount adequate to pay all Impositions for the ensuing tax fiscal year and shall thereafter continue to deposit with Beneficiary, in monthly installments, an amount equal to 1/12 of the sum of the annual Impositions reasonably estimated by Beneficiary, for the purpose of paying the installment of Impositions next due on the Property and th e Improvements (funds deposited for this purpose shall here inafter be referred to as “Impounds”). In such event Trustor further agrees to cause all bills, statements or other documents relating to Impositions to be sent or mailed directly to Beneficiary. Upon receipt of such bills, st atements or other documents, and providing Trustor has deposited sufficient Impounds with Beneficiary pursuant to this Section
1.8(b), Beneficiary shall timely pay such amounts as may be due thereunder out of the Impounds so deposited with Beneficiary. If at any time and for any reason the Impounds deposited with Beneficiary are or will be insufficient to pay such amounts as may then or subsequently be due, Beneficiary may notify Trustor and upon such notice Trustor shall deposit immediately an amount equal to such deficiency with Beneficiary. If after the payment of the Impositions there shall be an excess amount held by Beneficiary, such excess amount shall be promptly refunded to Trustor in any reasonable manner and in such amount as Beneficiary may elect. Beneficiary may not ATTACHMENT NO. 7
commingle Impounds with its own funds and shall not be obligated to pay or allow any interest on any Impounds held by Beneficiary pending disbur sement or application hereunder. Beneficiary may reserve for future payment of Impositions such portion of the Impounds as Beneficiary may in its absolute discretion deem proper.
(c) Upon an Event of Default under any of the ARPA Loan Documents or this ARPA Deed of Trust, Beneficiary may apply the balance of the Impounds upon any indebtedness or obligation secured hereby in such order as Beneficiary may determine, notwithstanding that the indebtedness or the performance of the obligati on may not yet be due according to the terms thereof. Should Trustor fail to deposit with Beneficiary (exclusive of that portion of the payments which has been applied by Beneficiary upon any indebtedness or obligation secured hereby) sums sufficient to fully pay such Impositions befo re delinquency thereof, Beneficiary may, at Beneficiary’s election, but without any obligation so to do, advance any amounts required to make up the deficiency, which advances, if any, shall bear interest at the Default Rate, shall be secured hereby and shall be repayable to Beneficiary as herein elsewher e provided, or at the option of Beneficiary the latter may, without making any advance whatever, apply any Impounds held by it upon any indebtedness or obligation secured hereby in such order as Beneficiary may determine, notwithstanding that the indebte dness or the performance of the obligation may not yet be due according to the terms thereof. Should any Event of Default occur or exist on the part of the Trustor in the payment or performance of any of Trustor’s obligations under the terms of the ARPA Loan Documents, Beneficiary may, at any time at Beneficiary’s option, apply any sums or amounts in its possession received pursuant to Sections 1.4(b ) and 1.8(b) hereof, or as Rents of the Property or the Improvements, or any portion thereof, or otherwise, to any indebtedness or obligation of the Trustor secured hereby in such manner and order as Beneficiary may elect, notwithstanding the indebtedness or the performance of the obligati on may not yet be due according to the terms thereof. The receipt, use or application of any such Impounds paid by Trustor to Beneficiary hereunder shall not be construed to affect the maturity of any indebtedness secured by this ARPA Deed of Trust or any of the rights or powers of Beneficiary or Trustee under the terms of the ARPA Loan Documents or any of the obligations of Trustor or any guarantor under the ARPA Loan Documents.
(d) Trustor shall not suffer, permit or initiate the joint assessment of any real and personal property which may constitute any portion of the Trust Estate or suffer, permit or initiate any other procedure whereby the lien of the real property taxes and the lien of the personal property taxes shall be a ssessed, levied or charged to the Trus t Estate, or any portion of it, as a single lien.
(e) If requested by Beneficiary, Trusto r shall cause to be furnished to Beneficiary a tax reporting serv ice covering the Property and th e Improvements of the type, duration and with a company satisfactory to Beneficiary. (f) If, by the laws of the United States of America, or of the State of California or any political subdivision thereof having jurisdiction over Trustor, Beneficiary or the Trust Estate or any portion thereof, any tax, a ssessment or other payment is due or becomes due in respect of the issuance of the Note or the recording of this ARPA Deed of Trust, Trustor covenants and agrees to pay each such tax, assessment or other payment in the manner required by any such law. Trustor ATTACHMENT NO. 7
further covenants to defend and hold harmless and agrees to indemnify Beneficiary, its successors or assigns, against any liability incurred by reason of the imposition of any tax, assessment or other payment on the issuance of the ARPA Promissory Note or the recording of this ARPA Deed of Trust.
1.8 Utilities. Trustor shall pay or shall cause to be paid when due all utility charges which are incurred by Trustor for the benefit of the Property or the Improvements and all other assessments or charges of a similar nature, whether or not such charges are or may become liens thereon.
1.9 Actions Affecting Trust Estate. Trustor shall promptly give Beneficiary written notice of and shall appear in and contest any action or proceeding purporting to affect any portion of the Trust Estate or the security hereof or th e rights or powers of Beneficiary or Trustee; and shall pay all costs and expenses, including the cost of evidence of title and attorneys’ fees, in any such action or proceeding in which Beneficiary or Trustee may appear.
1.10 Actions By Trustee or Beneficiary to Preserve Trust Estate. During the continuation of an Event of Default, Beneficiary and/or Trustee, each in its own discretion, without obligation so to do, without releasing Trustor fro m any obligation, and wi th notice to or demand upon Trustor, may make or do the sa me in such manner and to such extent as either may deem necessary to protect the security hereof. In connection therewith (w ithout limiting their general powers, whether conferred herein, in any other ARPA Loan Documents or by law), Beneficiary and Trustee shall have and are hereby given the right, but not the obligation, (a) to enter upon, subject to the rights of tenants, and take possession of the Propert y and the Improvements; (b) to make additions, alterations, repairs and improvements to the Property and the Improvements which they or either of them may reasonably consider necessary or proper to keep the Property or the Improvements in good condition and repair; (c) to appear and participate in any action or proceeding affecting or which may affect the security hereof or the rights or powers of Beneficiary or Trustee; (d) to pay, purchase, contest or co mpromise any encumbrance, claim, charge, lien or debt which in the judgment of either may affect or appears to affect the security of this ARPA Deed of Trust or be prior or superior hereto; an d (e) in exercising such powers, to pay necessary expenses, including reasonable attorneys’ fees and costs or other necessary or desirable consultants. Trustor shall, immediately upon demand therefor by Beneficiary and Trustee or either of them, pay to Beneficiary and Trustee an amount equal to all respective costs and expenses incurred by such party in connection with the ex ercise of the foregoing rights, including, without limitation, reasonable costs of evidence of title, cour t costs, appraisals, surveys and receiver’s, trustee’s and reasonable attorneys’ fees, together with interest thereon from the date of such expenditures at the Default Rate.
1.11 Transfer of Trust Estate by Trustor. Subject to the provisions of the ARPA Loan Agreement, in the event the Trust Estate or any part thereof, or any interest therein is sold, transferred or leased in viola tion of Section 2 of the ARPA Lo an Agreement, Beneficiary shall have the absolute right at its option, upon notice and demand in accordance with Section 9 of the ARPA Loan Agreement, to declare all sums secured hereby immediately due and payable.
Consent to one such transaction shall not be deemed to be a waiver of the right to require consent to future or successive transactions. As a cond ition of the ARPA Loan, Trustor agrees for itself, ATTACHMENT NO. 7
its successors and assigns that the use of the Proper ty shall be subject to the restrictions on rent and occupancy and use of the Property set forth in the ARPA Loan Documents, including without limitation, the ARPA Regulatory Agreement.
1.12 Survival of Warranties. All representa tions, warranties and c ovenants of Trustor contained in the ARPA Loan Documents or incorporated by reference therein, shall survive the execution and delivery of this ARPA Deed of Trust and shall remain continuing obligations, warranties and representations of Trustor so long as any portion of the obligations secured by this ARPA Deed of Trust remains outstanding.
1.13 Eminent Domain. Subject to any a pplicable provisions of a subordination agreement between the City and a senior lender:
(a) In the event that any proceeding or action be commenced for the taking of the Trust Estate, or any part th ereof or interest therein, for pub lic or quasi-public use under the power of eminent domain, condemna tion or otherwise, or if the same be taken or damaged by reason of any public improvement or condemnation proceeding, or in any other manner, or should Trustor receive any notice or other informatio n regarding such proceeding, action, taking or damage, Trustor shall give prompt written notice thereof to Beneficiary. Beneficiary shall be entitled at its option, without regard to the adequacy of its security, to commence, appear in and prosecute in its own name any such action or proceeding so l ong as the probable compensation exceeds $150,000. Beneficiary shall also be entitle d to make any compromise or settlement in connection with such taking or damage. All compensation, awards, damages, rights of action and proceeds awarded to Trustor by reason of any such taking or damage (“Condemnation Proceeds”) are hereby assigned to Beneficiary and Trustor agr ees to execute such further assignments of the Condemnation Proceeds as Beneficiary or Trustee may require. After deducting therefrom all costs and expenses (regardless of the particular nature thereof and wh ether incurred with or without suit), including reasonable attorneys’ fees, incurr ed by it in connection with any such action or proceeding, subject to any applicable terms of the ARPA Loan Agreement, Beneficiary shall apply all such Condemnation Proceeds to the restorati on of the Improvements, provided that (i) the taking or damage will not, in Beneficiary’s reasonable judgment, materially and adversely affect the contemplated use and operati on of Property and the Improvement s; and (ii) all applicable conditions set forth in the Agreement are met. If all of the above conditions are met, Beneficiary shall disburse the Condemnation Proceeds only as repairs or replacements are effected and continuing expenses become due and payable.
(b) If any one or more of such conditions is not met, Beneficiary shall apply all of the Condemnation Proceeds, after deductions as herein provided, to the repayment of the outstanding balance of the Note, together with all accrued interest thereon, notwithstanding that the outstanding balance may not be due and paya ble; and Beneficiary shall have no further obligation to make disbursements pursuant to the ARPA Loan Agreement or the other ARPA Loan Documents. If the Condemnation Proceeds are not sufficient to repay the Note in full, Trustor shall have no obligation to pay any re maining balance. Application or release of the Condemnation Proceeds as provided herein shall not cure or wa ive any Event of Default or notice of default hereunder or under any other ARPA Loan Documents or invalidate any act done pursuant to such notice.
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1.14 Additional Security. No other security now existing, or hereafter taken, to secure the obligations secured hereby shall be impaired or affected by the execution of this ARPA Deed of Trust and all additional security shall be taken, considered and held as cumulative. The taking of additional security, execution of partial releases of the security, or any extension of the time of payment of the indebtedness shall not diminish the force, effect or lien of this ARPA Deed of Trust and shall not affect or impair the liability of any Trustor, surety or endorser for the payment of the indebtedness. In the event Beneficiary at any time holds additional security for any of the obligations secured hereby, it may enforce the sale thereof or otherwise realize upon the same, at its option, either before, concurrently, or after a sale is made hereunder.
1.15 Successors and Assigns. This ARPA Deed of Trust applies to, inures to the benefit of and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors and assigns. The term “Beneficiary” shall mean the Borrower and holder of the Note, whether or not named as Beneficiary herein. In exercising any rights hereunder or taking any actions provided for herein, Beneficiary may act through its em ployees, agents or i ndependent contractors authorized by Beneficiary.
1.16 Inspections. Beneficiary, or its agen ts, representatives or employees, are authorized, subject to the rights of tenants, to enter upon or in any part of the Property and the Improvements at any reasonable time following reasonable written notice of no less than forty- eight (48) hours in advance thereof for the purpos e of inspecting the same and for the purpose of performing any of the acts it is authorized to perform hereunder or under the terms of any of the ARPA Loan Documents. Without limiting the genera lity of the foregoing, Trustor agrees that Beneficiary will have the same right, power and authority to enter and inspect the Property and the Improvements as is granted to a secured lender under Section 2929.5 of the California Civil Code, and that Beneficiary will have the right to appoint a receiver to enforce this right to enter and inspect the Property and the Improvements to the extent such authority is provided under California law, including the authority given to a secured lender under Section 564(c) of the California Code of Civil Procedure.
1.17 Liens. Trustor shall pay and promptly disc harge, at Trustor’s cost and expense, all liens, encumbrances and charges upon the Trust Esta te, or any part thereo f or interest therein, subject to Trustor’s right to contest in good faith any such liens, encumbrances and charges. The Trustor shall remove or have removed any levy or attachment made on any of the Property or any part thereof, or assure the satisfaction ther eof within a reasonable time. Despite the foregoing, Trustor shall not be required to prepay any consensual lien or encumbrance against the Trust Estate which has been consented to in writing by Beneficiary. If Trustor shall fail to remove and discharge any such lien, encumbrance or charge, then, in addition to any other right or remedy of Beneficiary, Beneficiary may, but shall not be obligated to, discharge the same, either by paying the amount claimed to be due, or by procuring the discharge of such lien, encumbrance or charge by depositing in a court a bond or the amount claimed or otherwise giving security for such claim, or by procuring such discharge in such manner as is or may be prescribed by law. Trustor shall, immediately upon demand therefor by Beneficiary, pay to Benefici ary an amount equal to all costs and expenses incurred by Beneficiary in connection with the ex ercise by Beneficiary of the foregoing right to discharge any such lien, encumbrance or charge, t ogether with interest thereon from the date of such expenditure at the Default Rate.
ATTACHMENT NO. 7
1.18 Trustee’s Powers. At any time, or from time to time, without liability therefor and without notice, upon written request of Beneficiary and presentation of this ARPA Deed of Trust and the ARPA Promissory Note secured hereby for endorsement, and without affecting the personal liability of any person for payment of the indebtedness secured hereby or the effect of this ARPA Deed of Trust upon the remainder of the Trust Estate, Trustee may (a) reconvey any part of the Trust Estate, (b) consent in writing to the making of any map or plat thereof, (c) join in granting any easement thereon, or (d) join in any extension agreement or any agreement subordinating the lien or charge hereof.
1.19 Beneficiary’s Powers. Wit hout affecting the liability of any other person liable for the payment of any obligation here in mentioned, and without affecti ng the lien or charge of this ARPA Deed of Trust upon any portion of the Trust Estate not then or theretofore released as security for the full amount of all unpaid obligations, Beneficiary may, from time to time and without notice (a) release any person so liable, (b) extend the maturity or alter any of the terms of any such obligation, (c) grant other indulgences, (d) release or reconvey, or cause to be released or reconveyed at any time at Beneficiary’s option any parcel, portion or all of the Trust Estate, (e) take or release any other or additional security for any obligation herein mentioned, or (f) make compositions or other arrangements with debtors in relation thereto.
1.20 Personal Liability. The security interest in the Property granted to Beneficiary pursuant to this ARPA Deed of Trust shall be s ubordinate only to the seni or financing to which Beneficiary has expressly subordi nated and such exceptions to title shown in the title report for the Property which are approved in writing by Beneficiary. Neither the Trustor nor any partner or officer of the Trustor shall have any direct or indirect personal liability for payment of the principal of, or interest on, the ARPA Promissory Note. The ARPA Promissory Note constitutes a recourse obligation of Trustor until recorda tion of the Release of Construc tion Covenants in the official records of the County of Riverside, California.
Subsequent to the recordation of the Releas e of Construction Covena nts in the official records of the County of Riverside, California, the sole recourse of the Beneficiary with respect to the principal of, or interest on, the ARPA Promi ssory Note shall be to the Property securing the indebtedness evidenced by the ARPA Promissory Note. No judgment, or execution thereon, entered in any action, legal or e quitable, on the ARPA Promissory Note or this ARPA Deed of Trust securing the ARPA Promissory Note shall be enforced personally against the Trustor or, if the Trustor shall be a partnership, any partner of the Trustor, but shall be enforced only against the Trustor and such other or further security as , from time to time, may be hypothecated for the ARPA Promissory Note; provided, however, that nothing contained in the foregoing limitation of liability shall (a) limit or impair the enforcement against all such security for the ARPA Promissory Note of all the rights and remedies of the Beneficiary, or (b) be deemed in any way to impair the right of the Beneficiary to assert the unpaid prin cipal amount of the ARPA Promissory Note as a demand for money within the meaning and intend ment of Section 431.70 of the California Code of Civil Procedure or any successor provision thereto. The foregoing limitation of liability is intended to apply only to the obligation for the repayment of the princi pal of, and payment of interest on the ARPA Promissory Note; nothing contained therein is intended to relieve the Trustor and, if Trustor is a partnership, a ny general partner of Trustor of liability for (i) fraud or willful misrepresentation; (ii) the failure to pay taxes, assessments or other charges which may create liens ATTACHMENT NO. 7
on the real property described in the ARPA Loan Documents that are payable or applicable prior to any foreclosure under this ARPA Deed of Trust (to the full extent of such taxes, assessments or other charges); (iii) subject to any subordination agreement between the City and a senior lender, the retention of any rental income or other income arising with respect to the Project collected by Trustor after the Beneficiary has given any notice that Trustor is in default to the full extent of the rental income or other income retained and collected by Trustor after the giving of any such notice; (iv) the fair market value as of the time of the giving of any notice referred to in subparagraph (iii) above of any personal property or fixtures rem oved or disposed of by Trustor other than in accordance with the ARPA Loan Documents after the giving of any notice referred to above; and (v) the misapplication of any proceeds under an y insurance policies or awards resulting from condemnation or the exercise of the power of eminent domain or by reason of damage, loss or destruction to any portion of th e Project; and (v) breach of a ny environmental covenant or representation made by the Trustor relating to the Project.
1.21 Indemnity. In addition to any other i ndemnities to Benefi ciary specifically provided for in this ARPA Deed of Trust and/or in the ARPA Loan Agreement, Trustor hereby indemnifies, and shall defend a nd save harmless, Beneficiary a nd its authorized representatives (collectively, “Indemnitees”) from and against a ny and all losses, liabilities, suits, obligations, fines, damages, pe nalties, claims, costs, charges and expenses, including, without limitation, architects’, engineers’ and reasonable attorneys’ fees and all disbursements which may be imposed upon, incurred by or asserted against Beneficiary a nd its authorized representative by reason of:
(a) the construction of any imp rovements on the Property, (b) a ny capital improvements, other work or things done in, on or about the Property or any part thereof, (c) any use, nonuse, misuse, possession, occupation, alte ration, operation, maintena nce or management of any portion of the Trust Estate or any part ther eof or any street, drive, side walk, curb, passageway or space comprising a part thereof or adjacent thereto, (d) any negligence or willful act or omission on the part of Trustor and its agents, contractors, se rvants, employees, licensees or invitees, (e) any accident, injury (including death) or damage to any person or property occurring in, on or about the Property or any part thereof, (f) any lien or claim which may be alleged to have arisen on, against, or with respect to any portion of the Tr ust Estate under the laws of the local or state government or any other government al or quasi-governmental author ity or any liability asserted against Beneficiary with respect thereto, (g) any tax attributable to the execution, delivery, filing or recording of this ARPA Deed of Trust, the ARPA Promissory Note or the ARPA Loan Agreement, (h) any contest due to Trustor’s actions or failure to act, permitted pursuant to the provisions of this ARPA Deed of Trust, (i) s ubject to the nonrecourse provisions set forth in Section 1.20, any Event of Default under the AR PA Promissory Note, the ARPA Regulatory Agreement, this ARPA Deed of Trust or the ARPA Loan Agreement, or (j) any claim by or liability to any contractor or subcontractor performing work or any party supplying materials in connection with the Property or the Improvements, except Trustor shall not be required to indemnify, defend or save harmless Indemnitees hereunder to the extent caused by the Indemnitee’s sole negligence or willful misconduct.
ATTACHMENT NO. 7
ARTICLE 2
ASSIGNMENT OF RENTS, ISSUES AND PROFITS
2.1 Assignment. Subject to the effect of an assignment of leases and rents to any senior lenders, if any, Trustor hereby irrevocably, absolu tely, presently and unconditionally assigns and transfers to Beneficiary all the Rents of or fro m any portion of the Trust Estate, and hereby gives to and confers upon Beneficiary the right, power an d authority to collect such Rents. Trustor irrevocably appoints Beneficiary its true and lawful attorney-in-fa ct, at the option of Beneficiary at any time and from time to time , to demand, receive and enforce payment, to give receipts, releases and satisfactions, and to sue, in the name of Trustor, Trustee or Beneficiary, for all such Rents, and apply the same to the indebtedness secured hereby; provided, however, that so long as an Event of Default shall not have occurred hereunder and be conti nuing beyond any applicable notice and cure period, Trustor shall have the right to collect such Rents. Upon the request of Beneficiary, Trustor shall execute and deliver to Beneficiary, in recordable form, a specific assignment of any leases now or hereafter affec ting the Trust Estate or any portion thereof to evidence further the assignment hereby made. Th e Assignment of Rents in this Article 2 is intended to be an absolute assignment from Trusto r to Beneficiary and not merely an assignment for security only.
2.2 Election of Remedies. Subject to Trusto r’s right to collect the Rents pursuant to Section 2.1, Beneficiary may, subject to the rights of any tenants, either in person, by agent or by a receiver appointed by a court, enter upon and take possession of all or any portion of the Property and the Improvements, enforce all Leases, in its own name sue for or collect all Rents, including those past due and unpaid, and apply the same to the costs and expenses of operation and collection, including, without limitation, reasonable attorneys’ fees, and to any indebtedness then secured hereby, in such order as Beneficiary may determine. The collection of such Rents, or the entering upon and taking possession of the Property or the Improvements, or the application thereof as provided above, shall not cure or wa ive any Event of Default or notice of default hereunder or under any of the ARPA Loan Docume nts or invalidate any act done in response to such Event of Default or pursuant to such notice of default.
ARTICLE 3
REMEDIES UPON DEFAULT
3.1 Events of Default. For all purposes hereof , the term “Event of Default” shall mean (a) at Beneficiary’s option, the failure of Trus tor to pay any amount due hereunder or under the Note within ten (10) days of when the same is due and payable, whether by acceleration or otherwise; (b) the failure of Trustor to perf orm any non-monetary oblig ation hereunder, or the failure to be true in any material respect when made of any representation or warranty of Trustor contained herein, without curing su ch failure within thirty (30) calendar days after receipt of written notice from the City (or from any party authorized by the City to deliver such notice as identified by the City in writing to Borrower), and the continuance of such failure for thirty (30) calendar days after notice, provided that such default cannot reasonably be cured within thirty (30) calendar days, Trustor shall have such additionally time as may be reasonably necessary if Trustor commences to cure such default within such thirty (30)-calendar day period and thereafter ATTACHMENT NO. 7
diligently prosecutes such cure to completion, or (c) the existence of any Event of Default under the ARPA Loan Documents that is continuing beyond any applicable notice and cure period.
3.2 Acceleration Upon Default, Additiona l Remedies. Upon the occurrence and continuance of an Event of Default beyond any applicable notice and cu re period, Beneficiary may, at its option, declare all indebtedness secured hereby to be immediately due and payable upon notice and demand. Thereafter Beneficiary may:
(a) Either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court and without regard to the adequacy of its security, subject to the rights of tenants, enter upon and take possession of the Property and the Improvements, or any part thereof, in its own na me or in the name of Trustee, and do any acts which it deems necessary or desirable to preserve the value, marketability or rentability of any portion of the Trust Estate, including, without limitation (i) taking possession of Trustor’s books and records with respect to the Property and Improvements, (ii) completing the construction of the Improvements, (iii) maintaining or repairing the Improvements or any other portion of the Trust Estate, (iv) increasing the income from the Trust Estate, with or without taking possession of the Property or the Improvements, (v) entering into, modifying, or enforcing Leases, (vi) suing for or otherwise collecting the Rents or other amounts owing to Trustor, including those past due and unpaid, and (vii) applying the same, less costs and expenses of operation and collection including, without limitation, attorneys’ fees , upon any indebtedness secured he reby, all in such order as Beneficiary may determine. The entering upon and taking possession of the Property or the Improvements, the collection of such Rents and the application thereof as provided above, shall not cure or waive any Event of Default under the ARPA Loan Documents or this ARPA Deed of Trust or notice of default hereunder;
(b) Commence an action to foreclose this ARPA Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof;
(c) Deliver to Trustee a written declaration of default and demand for sale and a written notice of default and election to cause Trustor’s interest in the Trust Estate to be sold, which notice Trustee or Beneficiary shall cause to be duly filed of record in the Official Records of the county in which the Property is located; or
(d) Exercise all other rights and remedies provided herein, in any of the ARPA Loan Documents or other document now or hereafter securing all or any portion of the obligations secured hereby, or by law.
3.3 Foreclosure by Power of Sale. Should Bene ficiary elect to foreclose by exercise of the power of sale herein contained, Beneficiary shall notify Trustee and shall deposit with Trustee this ARPA Deed of Trust and the ARPA Promi ssory Note and such receipts and evidence of expenditures made and secured hereby as Trustee may require.
(a) Beneficiary or Trustee shall give such notice of default and election to sell as is then required by applicable law. Trustee shall, without demand on Trustor, after lapse of such time as may then be required by law and after recordation of such notice of default and after notice ATTACHMENT NO. 7
of sale having been given as required by law, sell the Trust Estate at the time and place of sale fixed by it in the notice of sale, either as a whole, or in separate lots or parcels or items as Beneficiary shall deem expedient, and in such order as it may determine, at public auction to the highest bidder for cash in lawful money of the United States payable at the time of sale. Trustee shall deliver to such purchaser or purchasers thereof a trustee’s deed conveying the property so sold, which shall not contain any covenant or warranty, express or implied. The recitals in such deed of any matters or facts sha ll be conclusive proof of the truthfulness thereof. Any person, including, without limitation, Trustor, Trustee or Beneficiary, may purchas e at such sale and Beneficiary shall be entitled to pay the purchase price by crediting the purchase price of the property against the obligations secured hereby. Trustor hereby covenants to warrant and defend the title of such purchaser or purchasers.
(b) After deducting all costs, fees and e xpenses of Trustee and of this Trust, including costs of evidence of title in connection with sale, Trustee shall apply the proceeds of sale in the following priority, to payment of: (i) fi rst, all sums expended unde r the terms hereof, not then repaid, with accrued interest at the Defau lt Rate; (ii) sec ond, all other sums then secured hereby; and (iii) the remainder, if any, to the person or persons legally entitled thereto.
(c) Subject to California Civil Code Section 2924g, Trustee may postpone sale of all or any portion of the Tr ust Estate by public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement or subsequently noticed sale, and without further notice make such sale at the time fixed by the last postponement, or may, in its discretion, give a new notice of sale.
3.4 Appointment of Receiver. Upon the occu rrence and continuance of an Event of Default hereunder, Beneficiary, as a matter of right and without notice to Trustor or anyone claiming under Trustor, and without regard to the th en value of the Trust Estate or the adequacy for any security for the obligations then secured hereby, shall have the right to apply to any court having jurisdiction to appoint a receiver or rece ivers of the Trust Esta te, and Trustor hereby irrevocably consents to such appointment and waives notice of any application therefor. Any such receiver or receivers shall have all the usual powers and duties of receivers in like or similar cases and all the powers and duties of Beneficiary in case of entry as provided herein.
3.5 Remedies Not Exclusive. Trustee and Beneficiary, and each of them, shall be entitled to enforce payment and performance of any indebtedness or obligations secured hereby and to exercise all rights and powers under this ARPA Deed of Trust or under any ARPA Loan Documents or other agreement or any laws now or hereafter in force, notwithstanding some or all of the indebtedness and obligations secured hereby may now or hereafter be otherwise secured, whether by mortgage, deed of trust, pledge, lien, assignment or otherwise. Neither the acceptance of this ARPA Deed of Trust nor its enforcement whether by court action or pursuant to the power of sale or other powers herein contained, shall prejudice or in a ny manner affect Trustee’s or Beneficiary’s right to realize upon or enforce any other security now or hereafter held by Trustee or Beneficiary, it being agreed that Trustee and Beneficiary, and each of them, shall be entitled to enforce this ARPA Deed of Trust and any other s ecurity now or hereafter held by Beneficiary or Trustee in such order and manner as they or either of them may in their absolute discretion determine. No remedy herein conferred upon or reserved to Trustee or Beneficiary is intended to ATTACHMENT NO. 7
be exclusive of any other remedy herein or by law provided or permitted, but each shall be cumulative and shall be in addition to every ot her remedy given hereunder or now or hereafter existing at law or in equity or by statute. Every power or remedy given by any of the ARPA Loan Documents to Trustee or Beneficiary or to which either of them may be otherwise entitled, may be exercised, concurrently or independently, from time to time and as often as may be deemed expedient by Trustee or Beneficiary and either of them may pursue inconsistent remedies.
3.6 Request for Notice. Trustor hereby requ ests a copy of any notice of default and that any notice of sale hereunder be mailed to it at the address set forth in Section 4.3 of this ARPA Deed of Trust.
3.7 Forbearance by Lender Not a Waiver. Any forbearance by Beneficiary in exercising any right or remedy hereunder, or otherwise afforded by applicable law, shall not be a waiver of or preclude the exercise of any right or remedy. The acceptance by Beneficiary of payment of any sum secured by this ARPA Deed of Trust after the due date of such payment shall not be a waiver of Beneficiary’s right either to require prompt payment when due of all other sums so secured or to declare an Event of Default for failure to make prompt payment. The procurement of insurance or this payment of taxes or other liens or charges by Beneficiary shall not be a waiver of Beneficiary’s right to accelerate the maturity of the indebtedness secured by this ARPA Deed of Trust nor shall Beneficiary’s receipt of any awards, proceeds or damages under this ARPA Deed of Trust operate to cure or waive any Event of Default with respect to any payment secured by this ARPA Deed of Trust.
3.8 Environmental Provisions. Without limiti ng any of the remedies provided in the ARPA Loan Documents, Trustor acknowledges a nd agrees that portions of Section 4 of the Agreement and Section 1.20 of this ARPA Deed of Trust are environmental provisions (as defined in Section 736(f)(2) of the California Code of Civil Procedure) made by the Trustor relating to the real property security (the “Environmental Provisions”), and that Trustor’s failure to comply with the Environmental Provisions is a breach of contract such that Beneficiary shall have the remedies provided under Section 736 of the California Code of Civil Pro cedure (“Section 736”) for the recovery of damages and for the enforcement of the Environmental Provisions. Pursuant to Section 736, Beneficiary’s action for recovery of damages or enforcement of the Environmental Provisions shall not constitute an action within the meaning of Section 726(a) of the California Code of Civil Procedure or constitute a money judgment for a deficiency or a deficiency judgment within the meaning of Sections 580a, 580b, 580d, or 726(b) of the California Code of Civil Procedure. Other than the remedy provided und er Section 736, all remedi es provided for by the ARPA Loan Documents are separate and distinct causes of action that are not abrogated, modified, limited or otherwise affected by the remedies provided under Section 736(a) of the California Code of Civil Procedure.
ARTICLE 4.
MISCELLANEOUS
4.1 Amendments. This instrument cannot be waived, changed, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of any waiver, change, discharge or termination is sought.
ATTACHMENT NO. 7
4.2 Trustor Waiver of Rights. Trustor waives to the extent permitted by law, (a) the benefit of all laws now existing or that may hereafter be enacte d providing for any appraisement before sale of any portion of the Trust Estate, (b) all rights of redemption, valuation, appraisement, stay of execution, notice of election to mature or declare due the whole of the secured indebtedness and marshalling in the event of foreclosure of the liens hereby created, (c) all rights and remedies which Trustor may have or be able to assert by reason of the laws of the State of California pertaining to the rights and remedies of sureties, (d) the right to assert any statute of limitations as a bar to the enforcement of the lien of this ARPA Deed of Trust or to any action brought to enforce the ARPA Loan Agreement or any other obligation secured by this ARPA Deed of Trust, and (e) any rights, legal or equitable, to require marshalling of assets or to require upon foreclosure sales in a particular order, including any rights unde r California Civil Code Sections 2899 and 3433.
Beneficiary shall have the right to determine the order in which any or all of the Trust Estate shall be subjected to the remedies provided herein. Be neficiary shall have the right to determine the order in which any or all porti ons of the indebtedness secure d hereby are satisfied from the proceeds realized upon the exercise of the remedi es provided herein. No thing contained herein shall be deemed to be a waiver of Trustor’ s rights under Section 2924c of the California Civil Code.
4.3 Notices. All notices and demands given under the terms hereof shall be in writing and sent by first-class registered or certified mail, postage prepaid, return receipt requested, or by private courier service which provides evidence of delivery. Unless a different address is given by any party as provided in this Section, all such communication will be addressed as follows:
If to Trustor: RIVERSIDE HOUSING DEVELOPMENT
CORPORATION
4250 Brockton Avenue
Riverside, CA 92501
Attn: President
Email: [email protected]
If to Beneficiary: City of Riverside
Attn: City Manager
3900 Main Street
Riverside, California 92522
Copies to: City of Riverside
Attn: City Attorney
3900 Main Street
Riverside, California 92522
Any Notice shall be deemed received immediately if delivered by hand and shall be deemed received on the third (3rd) calendar day from the date it is postmarked if delivered by registered or certified mail. Each party shall promptly notif y the other party of any change(s) of address to which notice shall be sent. Any address for service of notice on any party may be changed by that party serving a notice upon the other of the new a ddress, except that any change of address to a ATTACHMENT NO. 7
post office box shall not be effective unless a street address is also specified for use in effectuating personal service.
4.4 Acceptance by Trustee. Trustee accepts this Trust when this ARPA Deed of Trust, duly executed and acknowledged, is made a public record as provided by law.
4.5 Captions. The captions or headings at th e beginning of each Section hereof are for the convenience of the parties and are not a part of this ARPA Deed of Trust.
4.6 Invalidity of Certain Provisions. Every pr ovision of this ARPA Deed of Trust is intended to be severable. In the event any term or provision hereof is declared to be illegal, invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such illegality or invalidity shall not affect the balance of th e terms and provisions he reof, which terms and provisions shall remain binding and enforceable.
4.7 Subrogation. To the extent that proceed s of the ARPA Promissory Note are used to pay any outstanding lien, charge or prior encu mbrance against the Trust Estate, such proceeds have been or will be advanced by Beneficiary at Trustor’s request and Beneficiary shall be subrogated to any and all rights and liens held by any Borrower or holder of such outstanding liens, charges and prior encumbrances, irrespective of whether the liens, charges or encumbrances are released.
4.8 Attorneys’ Fees. If any payment secure d hereby is not paid when due, Trustor promises to pay all costs of enforcement a nd collection, including but not limited to, reasonable attorneys’ fees, whether or not such enforcement and collection includes the filing of a lawsuit.
As used herein, the terms “attorneys’ fees” or “attorneys’ fees and costs” shall mean the fees and expenses of counsel to the parties hereto (including, without limitation, in-house counsel employed by Beneficiary) which may include printing, duplica ting and other expenses, air freight charges, and fees billed for law clerks, paralegals and others not admitted to the bar but performing services under the supervision of an attorney. The terms “a ttorneys’ fees” or “attorneys’ fees and costs” shall also include, without limitation, all such fees and expenses incurred with respect to appeals, arbitrations and bankruptcy proceedings, and whether or not any action or proceeding is brought with respect to the matter for which said fees and expenses were incurred.
4.9 No Merger of Lease. If both the lessor’s and lessee’s estate under any lease or any portion thereof which now or hereafter constitutes a part of the Trust Estate shall at any time become vested in one Borrower, this ARPA Deed of Trust and the lien created hereby shall not be destroyed or terminated by appli cation of the doctrine of merger unless Beneficiary so elects as evidenced by recording a written declaration so stating, and, unless and until Beneficiary so elects, Beneficiary shall continue to have and enjoy all of the rights and privileges of Beneficiary as to the separate estates. In addition, upon the foreclos ure of the lien created by this ARPA Deed of Trust on the Trust Estate pursuant to the provision s hereof, any leases or subleases then existing and affecting all or any portion of the Trust Estate shall not be destroyed or terminated by application of the law of merger or as a matter of law or as a result of such foreclosure unless Beneficiary or any purchaser at such foreclosure sale shall so elect. No act by or on behalf of ATTACHMENT NO. 7
Beneficiary or any such purchaser shall constitute a termination of any lease or sublease unless Beneficiary or such purchaser shall give written notice thereof to such tenant or subtenant.
4.10 Governing Law. This ARPA Deed of Trust shall be governed by and construed in accordance with the laws of the State of California.
4.11 Joint and Several Obligations. Should this ARPA Deed of Trust be signed by more than one party, all obligations he rein contained shall be deemed to be the joint and several obligations of each party executing this ARPA Deed of Trust.
4.12 Interpretation. In this ARPA Deed of Tr ust the singular shall include the plural and the masculine shall include the feminine and neuter and vice versa, if the context so requires.
4.13 Completion of Construction. This ARPA Deed of Trust is a construction deed of trust within the meaning of California Comme rcial Code Section 9313. For purposes of subdivision (6) of that statute, “completion of construction” shall not be deemed to occur prior to completion of all work as evidenced by a certific ate of occupancy or e quivalent document from the jurisdiction, and installation or incorporation into the Improvements of all materials, for which sums secured hereby are disbursed by Beneficiary.
4.14 Reconveyance by Trustee. U pon written request of Beneficiary stating that all sums secured hereby have been paid or that all obligations under the ARPA Regulatory Agreement have been satisfied, and upon surrender of this ARPA Deed of Trust and the ARPA Promissory Note to Trustee for cancellation and retention and upon payment by Trustor of Trustee’s fees, Trustee shall reconvey to Trustor, or to the person or pers ons legally entitled theret o, without warranty, any portion of the Trust Estate then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive pr oof of the truthfulness thereof. The grantee in any reconveyance may be described as “the person or persons legally entitled thereto.” Such grantee shall pay Trustee a reasonable fee and Trustee’s costs incurred in so reconveying the Trust Estate.
4.15 Counterparts. This document may be executed and acknowledged in counterparts, all of which executed and acknowledged counterparts shall together constitute a single document.
Signature and acknowledgment pages may be detached from the counterparts and attached to a single copy of this document to physically form one document, which may be recorded.
4.16 Nonforeign Entity. Section 1445 of the Internal Revenue Code of 1986, as amended (“Code”) and Sections 18805, 18815 and 26131, as applicable, of the California Revenue and Taxation Code (“CRTC” ) provide that a transferee of a U. S. real property interest must withhold tax, in the case of the Code, if the transf eror is a foreign person, or if, in the case of the CRTC, the transferor is not a Calif ornia resident. To inform Bene ficiary that the withholding of tax will not be required in the event of the disposition of the Property or the Improvements, or any portion thereof or interest therein, pursuant to the terms of this ARPA Deed of Trust, Trustor hereby certifies, under penalty of perjury, that: (a) Trustor is not a foreign corporation, foreign partnership, foreign trust or fo reign estate, as those terms ar e defined in the Code and the regulations promulgated there under; and (b) Trustor’s U.S. employer identification number 90- 1001541; and (c) Trustor’s principal place of bus iness is 1230 Columbia Street, San Diego, CA ATTACHMENT NO. 7
92101. It is understood that Beneficiary may disclose the contents of this certification to the Internal Revenue Service and the California Franchise Tax Board, and that any false statement contained herein could be punished by fine, impri sonment or both. Trustor covenants and agrees to execute such further certificates, which shall be signed under penalty of perjury, as Beneficiary shall reasonably require. The covenant set forth herein shall survive the foreclosure of the lien of this ARPA Deed of Trust or acceptance of a deed in lieu thereof.
4.17 Substitute Trustee. Beneficiary at a ny time and from time to time, by instrument in writing, may substitute and appoint a successor Tr ustee (either corporate or individual) to any Trustee named herein or previously substituted hereunder, which instrument when executed, acknowledged, and recorded in the Official Records of the Office of the Recorder of the county or counties where the Property is located shall be conclusive proof of the proper substitution and appointment of each successor trustee or trustees, who shall then have all the title, powers, duties and rights of the predecessor Trustee, without the necessity of any conveyance from such predecessor. Trustee shall not be obligated to notify any party hereto of pending sale under any other ARPA Deed of Trust, or, unless brought by Trustee, or any action or proceeding in which Trustor, Beneficiary or Trustee shall be a party.
4.18 Fixture Filing. This ARPA Deed of Trus t constitutes a financing statement filed as a fixture filing in the Official Records of the County Recorder in the county in which the Property is located with respect to any and all fixtures included within the term “Trust Estate” as used herein and with respect to any goods or other personal property that ma y now be or hereafter become such fixtures.
4.19 Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY LAW,
TRUSTOR AND BENEFICIARY EACH HEREBY WAIVES ANY RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS
UNDER THIS ARPA DEED OF TRUST OR ANY OTHER ARPA LOAN DOCUMENTS OR
RELATING THERETO OR ARISING FROM THE RELATIONSHIP WHICH IS THE
SUBJECT OF THE ARPA LOAN AGREEMENT AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
TRUSTOR ACKNOWLEDGES RECEIPT OF A TRUE COPY OF THIS ARPA DEED OF TRUST WITHOUT CHARGE.
TRUSTOR PLEASE NOTE: UPON TH E OCCURRENCE OF AN EVENT OF
DEFAULT, CALIFORNIA PROCEDURE PERMITS TRUSTEE TO SELL THE TRUST
ESTATE AT A SALE HELD WITHOUT SUPERVISION BY ANY COURT AFTER EXPIRATION OF A PERIOD PRESCRIBED BY LAW. UNLESS YOU PROVIDE AN AD-
DRESS FOR THE GIVING OF NOTICE, YOU MAY NOT BE ENTITLED TO NOTICE OF THE COMMENCEMENT OF ANY SALE PROCEEDINGS. BY EXECUTION OF THIS ARPA DEED OF TRUST, YOU CONSENT TO SUCH PROCEDURE. BENEFICIARY URGES YOU
TO GIVE PROMPT NOTICE OF ANY CHANGE IN YOUR ADDRESS SO THAT YOU MAY
RECEIVE PROMPTLY ANY NOTICE GIVEN PURSUANT TO THIS ARPA DEED OF TRUST.
ATTACHMENT NO. 7
4.20 Request for Notice. Pursuant to Calif ornia Government Code Section 27321.4(b) Trustor hereby requests that a copy of any notice of default or notice of sale given under this ARPA Deed of Trust be mailed to Trustor at the address for Trustor set forth herein.
4.21 Reconveyance. Except upon the Event of Default by Trustor, Beneficiary shall reconvey this ARPA Deed of Tr ust upon termination of the Affordability Period as that term is defined in the Agreement.
4.22 Subordination. This ARPA Deed of Trus t and the provisions contained herein shall be subordinate to any senior financing approve d by Beneficiary in accordance with the ARPA Loan Agreement and such exceptions to title shown in the title report for the Property which are approved in writing.
4.33 Tax Credit Provisions. Notwith standing anything to the c ontrary contained herein or in any documents secured by this ARPA D eed of Trust or contained in any subordination agreement, and to the extent applicable, the Beneficiary acknowledges and agrees that in the event of a foreclosure or deed-in-lieu of foreclosure (collectively, "For eclosure") with respect to the Security encumbered by this ARPA Deed of Trus t, the following rule contained in 26 U. S.C.
Section 42(h)(6)(E)(ii), as amended, applies:
For a period of three (3) years from the date of Foreclosure, with respect to an existing tenant of any very low-income unit, (i) such tenant may not be subject to eviction or termination of their tenancy (other than for good cause), (ii) nor may such tenant's gross rent with respect to such unit be increased, except as otherwise permitted under Section 42 of the Internal Revenue Code of 1986, as amended.
(Signatures on following page.)
ATTACHMENT NO. 7
IN WITNESS WHEREOF, Trustor has executed this ARPA Deed of Trust as of the day and year first above written.
TRUSTOR:
RIVERSIDE HOUSING DEVELOPMENT
CORPORATION,
a California nonprofit public benefit corporation,
By:
________________________
Bruce Kulpa
President
ATTACHMENT NO. 7
EXHIBIT “A”
LEGAL DESCRIPTION
[Attached]
DWIGHT AVENUEOTTAWA AVENUEUNIVERSITY AVENUESEVENTH STREETPARCEL 1 DATE: 8/22/25SCALE: 1"=60'DRAWN BY: EVSUBJECT: 1946 7TH STREET - PARCEL 1SHEET 1 OF 1THIS PLAT IS SOLELY AN AID IN LOCATING THE PARCEL(S) DESCRIBED IN THEATTACHED DOCUMENT. IT IS NOT A PART OF THE WRITTEN DESCRIPTION THEREIN. +---
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