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HomeMy WebLinkAbout2007 CON CDC Constellation Property Group - Deed of TrustSTE.WART TITS 4116 RECORDING REQUESTED BY: ) STEWAR'I TITLE OF CALIFORNIA, INC. /1\ ) AND WHEN RECORDED MAIL TO: ,14,11) ) J ,;i ) FOLEY & LARDNER LLP �� ) Attn: Richard L. Moskitis, Esq. ) 402 W. Broadway, Suite 2100 l` ) San Diego, Califo a 92101f"36U I)(l ) APN 556-554-16 JJ Space above for Recorder's Use EXEMPT FROM RECORDING FEES PURSUANT TO GOVERNMENT CODE SECTION 27383. DOC It 2007--0789163 111111111111 III IIII11111111111111111111111 i1ll1111111 DEC 24, 2007 10:58 AM OFF(Cv.i. RECORDS Atd D!F.:C C;UJilT's RELJRDEF,', OFFICE GI - DOOR', J .MiTH, C_i,tiT'r RECORDER FFIs. DC. 1 PAGES: 23 1111II1111 111IIIIII11111III1111IIII1111IIIIIII a1111111111III111 DEED OF TRUST WITH ASSIGNMENT OF RENTS, SECURITY. AGREEMENT AND FIXTURE FILING (CALIFORNIA) THIS DEED OF TRUST WITH ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING (CALIFORNIA) (this "Deed of Trust") is made as of December 13, 2007 by Constellation Property Group (A Avenue) LP, a Delaware limited partnership, as trustor ("Trustor"), to S I'EWART TITLE OF CALIFORNIA, INC., as trustee ("Trustee"), for the benefit of the Community Development Commission of the City of National City, a public body, corporate and politic, as beneficiary and secured party ("Beneficiary"). TIIIS DEED OF TRUST ALSO CONSTITUTES A FIXTURE FILING UNDER DIVISION 9 OF THE CALIFORNIA UNIFORM COMMERCIAL CODE AND COVERS GOODS WHICH ARE OR ARE TO BECOME FIXTURES ON THE REAL PROPERTY DESCRIBED ON EXHIBIT "A" ATTACI-IED HERETO AND MADE A PART HEREOF. TRUSTOR IS A RECORD OWNER OF AN INTEREST IN SAID REAL PROPERTY. 1. Grant 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, as the context may require, the "Property"): SDCA_348085.5 (a) The real property located in the City of National City, County of San Diego, State of California, as described in Exhibit A, together with all existing and future easements and rights affording access to it (the "Land"); together with 1 THIS DEED OF TRUST IS 2ND & SUBJECT TO A 1ST DEED OF TRUST RECORDING CONCURRENTLY HEREWITH 4117 (b) All buildings, structures and improvements now located or later to be constructed on the Land (the "Improvements"); together with (c) All existing and future appurtenances, privileges, easements, franchises and tenements of the Land, including all development rights and credits, air rights, water, water rights (whether riparian, appropriative or otherwise, and whether or not appurtenant) and water stock, and any land lying in the streets, roads or avenues, open or proposed, in front of or adjoining the Land and Improvements; together with (d) All existing and future leases, subleases, subtenancies, licenses, occupancy agreements and concessions ("Leases") relating to the use and enjoyment of all or any part of the Land and Improvements, and any and all guaranties and other agreements relating to or made in connection with any of such Leases; together with (e) All other property and interests of any kind or character, whether described in Exhibit A or not, which may be reasonably necessary or desirable to promote the present and any reasonable -future beneficial use and enjoyment of the Land and Improvements; together with (f) All goods, materials, supplies, chattels, furniture, fixtures, equipment and machinery now or later to be attached to, placed in or on, or used in connection with the use, enjoyment, occupancy or operation of all or any part of the Land and Improvements, whether stored on the Land or elsewhere, including all pumping plants, engines, pipes, ditches and flumes, and also all gas, electric, cooking, heating, cooling, air conditioning, lighting, refrigeration and plumbing fixtures and equipment, all of which shall be considered to the fullest extent of the law to be real property for purposes of this Deed of Trust; together with (g) All building materials, equipment, work in process or other personal property of any kind, whether stored on the Land or elsewhere, which have been or later will be acquired for the purpose of being delivered to, incorporated into or installed in or about the Land or Improvements; together with (h) All rights to the payment of money, accounts, accounts receivable, reserves, deferred payments, refunds, cost savings, payments and deposits, whether now or later to be received from third parties (including all earnest money sales deposits) or deposited by Trustor with third parties (including all utility deposits), contract rights, development and use rights, governmental permits and licenses, applications, architectural and engineering plans, specifications and drawings, as -built drawings, chattel paper, instruments, documents, notes, drafts and letters of credit (other than letters of credit in favor of Beneficiary), which arise from or relate to construction on the Land or to any business now or later to he conducted on it, or to the Land and Improvements generally; together with (i) All proceeds, including all claims to and demands for them, of the voluntary or involuntary conversion of any of the Land, Improvements or the other property described above into cash or liquidated claims, including all proceeds of any insurance policies, present and future, payable because of loss sustained to all or part of any Property, whether or not such insurance policies are required by Beneficiary, and all condemnation awards or 7 SOCA_348085.5 4118 payments now or later to be made by any public body or decree by any court of competent jurisdiction for any taking or in connection with any condemnation or eminent domain proceeding, and all causes of action and their proceeds for any damage or injury to the Land, Improvements or the other property described above or any part of them, or breach of warranty in connection with the construction of the Improvements, including causes of action arising in tort, contract, fraud or concealment of a material fact; together with (j) All books and records pertaining to any and all of the property described above, including computer -readable memory and any computer hardware or software necessary to access and process such memory ("Books and Records"); together with (k) All proceeds of, additions and accretions to, substitutions and replacements for, and changes in any of the property described above. Capitalized teens used above and elsewhere in this Decd of Trust without definition have the meanings given them in the Loan Agreement referred to in subsection 1.2(a) below. 1.2 Secured Obligations. (a) Trustor makes the grant, conveyance, transfer and assignment set forth in Section 1.1 and grants the security interest set forth in Article 3 for the purpose of securing the following obligations (the "Secured Obligations") in any order of priority that Beneficiary may choose: (i) Payment of all obligations at any time owing under a promissory note (the "Note") dated of even date herewith, payable by Trustor as maker in the stated principal amount of Two Million Five Hundred Thousand Dollars (S2,500,000) to the order of Beneficiary as holder; and (ii) Payment and performance of all obligations of Trustor under this Deed of Trust; and (iii) Payment and performance of all obligations of Trustor under a Loan Agreement dated of even date herewith, by Trustor as "Borrower" and Beneficiary as "Lender" (the "Loan Agreement"); and (iv) 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. (h) 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. Such terms include any provisions in the Note or the Loan Agreement which permit borrowing, repayment and reborrowing. 3 SDCA_348085.5 • 4119 Assignment of Rents. 2.1 Assignment. Trustor hereby irrevocably, absolutely, presently and unconditionally assigns to Beneficiary all rents, royalties, issues, profits, revenue, income and proceeds of the Property, whether now due, past due or to become due, including all prepaid rents and security deposits (some or all collectively, as the context may require, "Rents"). This is an absolute assignment, not an assignment for security only. 2.2 Grant of License. Beneficiary hereby confers upon Trustor a license ("License") to collect and retain the Rents as they become due and payable, so long as no Event of Default, as defined in Section 6.2, shall exist and he continuing. If an Event of Default has occurred and is continuing, Beneficiary shall have the right, which it may choose to exercise in its sole discretion, to terminate this 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) Sue 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 subsection 6.3(c). In Beneficiary's sole discretion, Beneficiary may choose to collect Rents either with or without taking possession of the Property. Beneficiary shall apply all Rents collected by it in the manner provided under Section 6.6. 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 subsection 6.3(g). 2.4 Beneficiary Not Responsible. Under no circumstances shall Beneficiary have any duty to produce Rents from the Property. Regardless of whether or not Beneficiary, in person or by agent, takes actual possession of the Land and Improvements, Beneficiary is not and shall not be deemed to be: (a) A "mortgagee in possession" for any purpose; or (h) Responsible for performing any of the obligations of the Trustor under any lease; or 4 SDCA_348085.5 4120 (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 (i) 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 Security Agreement. The parties intend for this Deed of Trust to create a lien on the Property, and an absolute assignment of the Rents, all in favor of Beneficiary. The parties acknowledge that some of the Property and some or all of the Rents may be determined under applicable law to be personal property or fixtures. To the extent that any Property or Rents may be or be determined to be personal property, Trustor as debtor hereby grants Beneficiary as secured party a security interest in all such Property and Rents, to secure payment and performance of the Secured Obligations. This Deed of Trust constitutes a security agreement under the California Uniform Commercial Code, covering all such Property and Rents, 3.2 Financing Statements. Trustor hereby authorizes Beneficiary to file 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 Property or Rents. As provided in Section 5.10, Trustor shall 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 Tiling shall 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. Trustor hereby irrevocably authorizes Beneficiary to file any initial financing statement and amendments thereto describing the collateral to be secured hereunder as all assets of the Trustor or words of similar effect, regardless of whether any particular asset comprised in the collateral to be secured hereunder falls within the scope of the Uniform Commercial Code of the jurisdiction in question. 4. Fixture Filing. The recording of this Deed of Trust constitutes the filing of a financing statement filed as a fixture filing under Section 9502(b) of the California Uniform Commercial Code, as amended or recodified from time to time, covering any Property which now is or later may become fixtures attached to the Land or Improvements. The "debtor" is the Trustor and the "secured party" is the Beneficiary. The Trustor's address in the address specified in Section 7.12 below. The Beneficiary's address is the address set forth in Section 7.12 below. The organizational identification number of Trustor is DE 3858155. 5. Rights and Duties of the Parties. 5.1 Representations and Warranties. Trustor represents and warrants that, except as previously disclosed to Beneficiary in a writing making reference to this Section 5.1: 5 SDCA_348085.5 4121 (a) Trustor lawfully possesses and holds fee simple title to all of the Land and Improvements described in Exhibit A; (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 and assign the Rents; (d) This Deed of Trust creates a second priority lien on the Property; subject only to the deed of trust being recorded concurrently herewith in favor of United Commercial Bank securing a loan in the amount of Twenty Million Three Hundred Forty Thousand Dollars (S20,340,000) (the "UCB Loan"); (e) The Property includes all property and rights which may be reasonably necessary or desirable to promote the present and any reasonable future beneficial use and enjoyment of the Land and Improvements; (f) Except for the UCB Loan, Trustor owns any Property which is personal property lice and clear of any security agreements, reservations of title or conditional sales contracts, and there is no 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 7.12 below. 5.2 faxes and Assessments. Trustor shall pay prior to delinquency all taxes, levies, charges and assessments, including assessments on appurtenant water stock, imposed by any public or quasi -public authority or utility company which arc (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 taxes, levies, charges or assessments become 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. 5.3 Performance of Secured Obligations. Trustor shall promptly pay and perform each Secured Obligation in accordance with its terms. 5.4 Liens, Charges and Encumbrances. Trustor shall immediately discharge any lien on the Property which Beneficiary has not consented to in writing. Trustor shall 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 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. 6 SDCA_348085.5 4122 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 shall immediately notify Beneficiary in writing (i) Any damage occurs or any injury or loss is sustained in the amount of S 10,000 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 oiler 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. (c) if Beneficiary chooses to do so, Beneficiary 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 Beneficiary 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. (d) All proceeds of these assigned claims, other property and rights which Trustor may receive or be entitled to shall be paid to Beneficiary. In each instance, Beneficiary shall apply such 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 arc satisfied in Beneficiary's reasonable judgment, Beneficiary shall permit Trustor to use the balance of such proceeds ("Net Claims Proceeds") to pay costs of repairing or reconstructing the Property in the manner described below: (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 he acceptable to Beneficiary. 7 SDCA_348085.5 4123 (ii) Beneficiary must receive evidence satisfactory to it that alter repair or reconstruction, the Property would be at least as valuable as it was immediately before the damage or condemnation occurred. (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 and other sums 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. (iv) No Event of Default shall have occurred and be continuing. if Beneficiary finds that such conditions have been met, Beneficiary shall hold the Net Claims Proceeds and any funds which Trustor is required to provide in a non -interest -bearing account and shall 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 such conditions have not been satisfied, Beneficiary may apply the Net Claims Proceeds to pay or prepay some or all of the Secured Obligations in such order and proportions as Beneficiary 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 shall insure the Property as required by the Loan Agreement and keep the Property in good condition and repair. (b) Trustor shall not remove or demolish the Property or any part of it, or alter, restore or add to the Property, 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 shall 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 shall not commit or allow any act upon or use of the Property which would violate: (i) any applicable law or order of any governmental authority, whether now existing or later to be enacted and whether foreseen or unforeseen; or (ii) any public or private covenant, condition, restriction or equitable servitude affecting the Property. Trustor 8 SDCA_348085.5 9124 shall not bring or keep any article on the Property or cause or allow any condition to exist on it, if that could invalidate or would be prohibited by any insurance coverage required to be maintained by Trustor on the Property or any part of it under the Loan Agreement. (c) Trustor shall not commit or allow waste of the Property. (f) 'Trustor shall cause any and all hazardous substances and hazardous materials (as defined under any federal, state, county or city law or regulation) to he removed from the Property. (g) Trustor shall perform all other acts which from the character or use of the Property may he reasonably necessary to maintain and preserve its value. 5.7 is recorded. Trustee's Acceptance of Trust. Trustee accepts this trust when this Deed of Trust 5.8 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; (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. 9 SDCA_348085.5 4125 5.9 Rcconveyance. When all of the Secured Obligations have been paid in full. Beneficiary shall request Trustee in writing to reconvey the Property, and shall 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 Trustee by Trustor under Section 5.10, Trustee shall 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. Such person or persons shall 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 shall be conclusive proof of their truthfulness. Neither Beneficiary nor Trustee shall have any duty to determine the rights of persons claiming to be rightful grantees of any reconveyance. 5.10 Compensation, Exculpation, Indemnification. (a) Trustor agrees to pay Ices 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 shall also pay or reimburse all of Beneficiary's and Trustee's costs and expenses which may he 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 6.3, 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 subsection 6.3(h)) and any cost of evidence of title. If Beneficiary chooses to dispose of Property through more than one Foreclosure Sale, Trustor shall pay all costs, expenses or other advances that may be incurred or made by Trustee or Beneficiary in each of such Foreclosure Sales. (b) Beneficiary shall not be 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 Beneficiary 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 shall be asserted against or imposed upon Beneficiary. 10 SDCA_348085.5 4126 (c) Trustor agrees to indemnity 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 Trustor's 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 shall survive 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 shall pay all obligations to pay or reimburse Beneficiary arising under this Section 5.1(1 immediately upon demand by Trustee or Beneficiary. While the Secured Obligations remain outstanding, each such obligation shall be added to, and considered to be part of, the principal of the Note, and shall bear interest from the date the obligation arises at the interest rate set forth in the Note. 5.11 Defense and Notice of Claims and Actions. At Trustor' s sole expense, Trustor shall protect, preserve and defend the Property and title to and right of possession of the Property, and the security of this Dccd of Trust and the rights and powers of Beneficiary and Trustee created under it, against all adverse claims. Trustor shall give Beneficiary and Trustee prompt notice in writing if any claim is asserted which does or could affect any of such matters, or if any action or proceeding is commenced which alleges or relates to any such claim. 5.12 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 shall be conclusive proof of the proper substitution of the successor Trustee, who shall automatically upon recordation of the instrument succeed to all estate, title, rights, powers and duties of the predecessor Trustee, without conveyance from it. 5.13 Subrogation. Beneficiary shall be 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. 11 SDCA_348085.5 4127 5.14 Site Visits. Observation and Testing. Beneficiary and its agents and representatives shall have the right at any reasonable time to enter and visit the Property for the purpose of performing appraisals and for the purposes of observing the Property, taking and removing soil or groundwater samples, and conducting tests on any part of the Property. The Beneficiary shall have no duty, however, to visit or observe the Property or to conduct tests, and no site visit, observation or testing by Beneficiary shall impose any liability on any Indemnified Party. In no event shall any site visit, observation or testing by Beneficiary be a representation that hazardous substances are or are not present in, on or under the Property, or that there has been or shall be compliance with any law, regulation or ordinance pertaining to hazardous substances or any other applicable governmental law. Neither Trustor nor any other party is entitled to rely on any site visit, observation or testing by Beneficiary. Beneficiary shall owe no duty of care to protect Trustor or any other party against, or to inform Trustor or any other party of, any hazardous substances or any other adverse condition affecting the Property. Beneficiary may in their discretion disclose to Trustor or any other party any report or findings made as a result of, or in connection with, any site visit, observation or testing by the Beneficiary. Trustor understands and agrees that Beneficiary makes no representation or warranty to Trustor or any other party regarding the truth, accuracy or completeness of any such report or findings that may be disclosed. Trustor also understands that, depending on the results of any site visit, observation or testing by Beneficiary which are disclosed to Trustor, Trustor may have a legal obligation to notify one or more environmental agencies of the results and that such reporting requirements are site -specific and are to be evaluated by Trustor without advice or assistance from the Beneficiary. 5.15 Notice of Change. Trustor shall give Beneficiary prior written notice of any change in: (a) the location of Trustor's place of business or its chief executive office if it has more than one place of business; (b) the location of any of the Property, including the Books and Records; and (e) Trustor's name or business structure. Unless otherwise approved by Beneficiary in writing, all Property that consists of personal property (other than the Books and Records) will be located on the Land and all Books and Records will be located at Trustor's place of business or chief executive office if Trustor has more than one place of business. 6. Accelerating Transfers, Default and Remedies. 6.1 Accelerating Transfers. (a) "Accelerating Transfer" means any sale, contract to sell, conveyance, encumbrance, lease not expressly pennitted under the Loan Agreement, or other transfer of all or any material part of the Property or any interest in it, 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. 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 (50%) of the ownership of the interest in the Trustor. 12 SDCA_348085.5 4128 (b) 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. In consideration of Beneficiary's reliance, Trustor agrees that Trustor shall not make any Accelerating Transfer, unless the transfer is preceded by Beneficiary's express written conscnt to the particular transaction and transferee. Beneficiary may withhold such consent in its sole discretion. if any Accelerating Transfer occurs, Beneficiary in its sole discretion may declare all of the Secured Obligations to be immediately due and payable, and Beneficiary and Trustee may invoke any rights and remedies provided by Section 6.3 of this Deed of Trust. 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 entering into the Secured Obligations; and that any Accelerating Transfer in violation of the prohibited transfer provisions herein set forth shall result in a material impairment of Beneficiary's interest in the Property and be deemed a breach of the foregoing covenant. 6.2 Events of Default. Trustor will be in default under this Deed of Trust upon the occurrence of any one or more of the following events (some or all collectively "Events of Default;" any one singly, an "Event of Default"): (a) Trustor fails to perform any obligation to pay money which arises under this Deed of Trust, and does not cure that failure within thirty (30) days after written notice from Beneficiary or Trustee; or (b) Trustor fails to perform any obligation arising under this Deed of Trust other than one to pay money, and does not cure that failure either within thirty (30) days ("Initial Cure Period") after written notice from Beneficiary or Trustee, or within ninety (90) days after such written notice, so long as Trustor begins within the Initial Cure Period and diligently continues to cure the failure, and Beneficiary, exercising reasonable judgment, determines that the cure cannot reasonably be completed at or before expiration of the Initial Cure Period; or (c) Obligations; or A default or Event of Default occurs under any of the Secured (d) The occurrence of a "Default" or an "Event of Default" under any of the loan documents in connection with the 11CB Loan. 6.3 Remedies. At any time after an Event of Default, Beneficiary and Trustee shall be entitled to invoke any and all of the rights and remedies described below. To the maximum extent permitted by law, all of such rights and remedies shall he cumulative, and the exercise of any one or more of them shall not constitute an election of remedies. (a) Acceleration. Beneficiary may declare any or all of the Secured Obligations to be due and payable immediately and may terminate any other Loan Document in accordance with its terms. (h) Receiver. Beneficiary may apply to any court of competent jurisdiction for, and obtain appointment of, a receiver for the Property. 13 SDCA_348085.5 4129 (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 canceling 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 shall 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. Trustor hereby irrevocably constitutes and appoints Beneficiary as Trustor's attorney -in -fact to perform such acts and execute such documents as Beneficiary in its sole discretion may consider to he appropriate in connection with taking these measures, including endorsement of Trustor's name on any instruments. Regardless of any provision of this Deed of Trust, or any other Loan Document, 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 Beneficiary's election of that remedy in accordance with California Uniform Commercial Code Section 9505, as it may he 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 curt, 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 Decd 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 Decd 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 he 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 subsection 6.3(d) 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. (1) 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 the power of sale hereby granted, Beneficiary shall have the discretionary right to cause some or all of the Property, including any Property which 14 SDCA_348085.5 4130 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. (A) 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. (B) In connection with any sale or other disposition of such Property, Trustor agrees that the following procedures constitute a commercially reasonable sale: Beneficiary shall mail writtcn notice of the sale to Trustor not later than thirty (30) days prior to such sale. Once per week during the four weeks immediately preceding such sale, Beneficiary will publish notice of the sale in a local daily newspaper of general circulation. Upon receipt of any written request, Beneficiary will make the Property available to any bona fide prospective purchaser for inspection during reasonable business hours. Notwithstanding, Beneficiary shall he 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. (ii) Trustee's Sales of Real Property or Mixed Collateral. (A) 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 he 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." (B) Before any Trustee's Sale, Beneficiary or Trustee shall 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 shall sell the property 15 SDCA 348085.5 4131 being sold at a public auction to be held at the time and place specified in the notice of sale. Neither Trustee nor Beneficiary shall 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 shall, postpone any Trustee's Sale by public announcement at the time and place noticed for that sale. (C) At any Trustee's Sale, Trustee shall sell to the highest bidder at public auction for cash in lawful money of the United States. Trustee shall 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, shall be 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 thc 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 subsection 6.3(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 hest interests (any such sale or disposition, a "Foreclosure Sale;" any two or more, "Foreclosure Sales"). If Beneficiary 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 Beneficiary may deem to be in its best interests. No Foreclosure Sale shall terminate or affect the lien of this Deed of Trust on any part of thc Property which has not been sold, until all of the Secured Obligations have been paid and performed in full. 6.4 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 such 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 5.10; and (b) Second, all other Secured Obligations in any order and proportions as Beneficiary in its sole discretion may choose. 16 SDCA_348085.5 4132 6.5 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 5.10; (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. 6.6 Application of Rents and Other Sums. Beneficiary shall apply any and all Rents collected by it, and any and all sums other than proceeds of a Foreclosure Sale which Beneficiary may receive or collect under Section 6.3, in the following manner: (a) First, to pay the portion of the Secured Obligations attributable to the costs and expenses of operation and collection that may he incurred by Trustee, Beneficiary or any receiver; (b) Second, to pay all other Secured Obligations in any 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 to it. Beneficiary shall have no liability for any funds which it does not actually receive. 7. Miscellaneous Provisions. 7.1 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 certain of them contain further agreements and affirmative and negative covenants by Trustor which apply to this Deed of Trust and to the Property. 7.2 No Waiver or Cure. (a) Each waiver by Beneficiary or Trustee must be in writing, and no waiver shall be construed as a continuing waiver. No waiver shall 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 shall 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. 17 SDCA_348085.5 4133 (b) If any of the events described below occurs, that event alone shall not: cure or waive any breach, Event of Default or notice of default under this Deed of Trust or invalidate any act performed pursuant to any such default or notice; or nullify the effect of any notice of default or sale (unless all Secured Obligations then due have been paid and performed and all other defaults under the Loan Documents have been cured); or impair the security of this Deed of Trust; or prejudice Beneficiary, Trustee or any receiver in the exercise of any right or remedy afforded any of them under this Deed of "Trust; or be construcd as an affirmation by Beneficiary of any tenancy, lease or option, or a subordination of the lien of this Deed of Trust. (i) Beneficiary, its agent or a receiver takes possession of all or any part of the Property in the manner provided in subsection 6.3(c). (ii) Beneficiary collects and applies Rents as permitted under Sections 2.3 and 6.6, either with or without taking possession of all or any part of the Property. (iii) Beneficiary receives and applies to any Secured Obligation any proceeds of any Property, including any proceeds of insurance policies, condemnation awards, or other claims, property or rights assigned to Beneficiary under Section 5.5. (iv) Bcncficiary makes a site visit, observes the Property and/or conducts tests as permitted under Section 5.14. (v) Beneficiary receives any sums under this Deed of Trust or any proceeds of any collateral held for any of the Secured Obligations, and applies them to one or more Secured Obligations. (vi) Beneficiary, Trustee or any receiver invokes any right or remedy provided under this Deed of Trust. 7.3 Powers of Beneficiary and Trustee. (a) Trustee shall have 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 5.8 or subsection 6.3(d), that act alone shall 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 shall not be released or changed 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 shall not be 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. 18 SDCA_348085.5 4134 (c) Beneficiary may take any of the actions permitted under subsections 6.3(b) and/or 6.3(e) 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. (d) From time to time, Beneficiary or Trustee may apply to any court of competent jurisdiction for aid and direction in executing the trust and enforcing the rights and remedies created under this Deed of Trust. Beneficiary or Trustee may from time to time obtain orders or decrees directing, confirming or approving acts in executing this trust and enforcing such rights and remedies. 7.4 Merger. No merger shall occur 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. 7.5 Joint and Several Liability. If Trustor consists of more than one person, each shall be jointly and severally liable for the faithful performance of all of Trustor's obligations under this Deed of Trust. 7.6 Applicable Law. This Deed of Trust shall be governed by California law. 7.7 Successors in Interest. The terms, covenants and conditions of this Deed of Trust shall be binding upon and inure to thc benefit of the heirs, successors and assigns of the parties. However, this Section 7.7 does not waive the provisions of Section 6.1. 7.8 Interpretation. (a) Whenever the context requires, all words used in thc 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 arc 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." (b) 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 tees, 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. (c) No listing of specific instances, items or matters in any way limits the scope 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. 7.9 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. 7.10 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 19 SDCA_348085.5 4135 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. 7.11 Severability. If any provision of this Deed of Trust should he held unenforceable or void, that provision shall be deemed severable from the remaining provisions and shall 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. 7.12 Notices. Trustor hereby requests that a copy of notice of default and notice of sale be mailed to it at the address set forth below. That address is also the mailing address of Trustor as debtor under the California Uniform Commercial Code. Beneficiary's address given below is - the address for Beneficiary as secured party under the California Uniform Commercial Code. To Beneficiary: Community Development Commission of National City 1243 National City Boulevard National City, CA 91950-4301 Attn: Executive Director With a copy to: Foley & Lardner LLP 402 West Broadway, Suite 2100 San Diego, CA 92101 Attn: Richard L. Moskitis, Esq. To Trustor: Constellation Property Group (A Avenue) LP 1133 Columbia Street, Suite 101 San Diego, CA 92I01 Attn: Eugene Marchese 7.13 Waiver of Statute of Limitations and Rights to Trial by Jury. The pleading of any statute of limitations as a defense to any and all obligation secured by this Deed of Trust and the right to a jury trial in any action under or relating to the Loan Documents is hereby waived, to the fullest extent allowed by law. 7.14 Copies. Trustor will promptly give to Beneficiary copies of all (a) notices of violation relating to the Property that Trustor receives from any governmental agency or authority, and (b) notices of default that Trustor shall give or receive under any agreement that Trustor covenants to perform hereunder, including, without limitation, notices of default relating to the Property that Trustor receives under any agreement relating to the borrowing of money by Trustor or from any Person. 20 SDCA_348085.5 4136 7.15 Usury. In the event that Beneficiary determines than any charge, fee or interest paid or agreed to he paid in connection with the Loan may, under the applicable usury laws, cause the interest rate on the Loan to exceed the maximum permitted by law, then such charges, fees or interest shall he reduced and any amounts actually paid in excess of the maximum interest permitted by such laws shall he applied by Beneficiary to reduce the outstanding principal balance of the Loan. The parties intend that Trustor shall not be required to pay, and Beneficiary shall not he entitled to collect, interest in excess of the maximum legal rate permitted under the applicable usury laws. 7.16 Destruction of Note. Trustor shall, if the Note is mutilated or destroyed by any cause whatsoever, or otherwise lost or stolen and regardless of whether due to the act or neglect of Beneficiary or Trustee, execute and deliver to Beneficiary in substitution therefor a duplicate promissory note containing the same teens and conditions as the Note, within thirty (30) days after Beneficiary notifies Trustor of any such mutilation, destruction, loss or theft of the Note. Any new promissory note executed and delivered hereunder shall be in full substitution for the Note, shall not constitute any new or additional indebtedness of Trustor to Beneficiary, shall constitute solely a substitute evidence of the Indebtedness evidenced by the original Note, and shall not affect in any manner the priority of this Deed of Trust, or any other document or instrument executed in connection with or evidencing or securing the Indebtedness under the Note. Failure or delay by Beneficiary to notify Trustor hereunder shall not affect in any manner Trustor's liability for the Indebtedness under the Note or Trustor's obligation to execute a new promissory note hereunder; and Trustor's failure to execute a new promissory note on Beneficiary's request hereunder shall likewise not affect Trustor's liability for the Indebtedness under the Note. IN WITNESS WHEREOF, Trustor has caused this Deed of Trust to be executed as of the day and year first above written. 1'RUSTOR: Constellation Property Group (A Avenue) LP, a Delaware limited partnership By: ConstcllatioProperty Management, Inc., a Delawarejrporation, I 1 Partner By: Naive: ' Eu Its: Pre • By: Name: Stephen Scotchmer Its: Secretary 21 SDCA_348085.5 4137 EXHIBIT A PROPERTY DESCRI PTION PARCEL 2 OF PARCEL MAP NO. 10377, IN THE CITY OF NATIONAL CITY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AUGUST 27, 1980 AS FILE NO. 80-275023 OF THE OFFICIAL RECORDS. APN: 556-554-16 SDCA_348085.5 4138 • ACKNOWLEDGEMENT STATE OF CALIFORNIA ) )ss. COUNTY OFF' Say, � On `���.r,., C3 ,H 200 before me, 2A-2 Notary Public, personally appeared , personally known to me (nr-pfavcd-to idence) to he the person whose name ) is/(• subscribed to the within instrument and acknowledged to me that he/sth( executed the same in his /t r authorized capacity(i4, and that by hisi/tl�ir signatures') on the instrument the person(. , or the entity upon behalf of which the person acted, executed the instrument. WITNESS iny hand and official seal. ACKNOWLEDGEMENT REBECCA LEE CTA r►1.# 17AI.WO A i NOT SIJI D�F00 COUNTY Caws. Exr .PR. 6, 2011 ! (SEAL) STATE OF CALIFORNIA ) )ss. COUNTY OF San d . ) On w4)ey `� , 20(} before me, L ra L�e_. , Notary Public, personally appeared - e On.e)(\ Sc c-Cc_Vm, personally known to me (or--preved-to n}c..ctn the basis of satisfactory -evidence) to be the person (4 whose name is/( subscribed to the within instrument and acknowledged to me that he//thy executed the same in his, t(r authorized capacity(, and that by his/ r/ttAr signature on the instrument the person(4,, or the entity upon behalf of which the person(, acted, execut d the instrument. WITN SS my hand and official seal. REBECCA LEE k NOTARY CALFO� S,w DIEeo COUNTY Mr Co.wEXP. IN, 8, 2011 t (SEAL) SDCA_348085.5