SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES AND EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported) January 24, 1997
AEI REAL ESTATE FUND XV LIMITED PARTNERSHIP
(Exact Name of Registrant as Specified in its Charter)
State of Delaware
(State or other Jurisdiction of Incorporation or
Organization)
0-14089 93-0926134
(Commission File Number) (I.R.S. Employer
Identification No.)
1300 Minnesota World Trade Center, St. Paul, Minnesota 55101
(Address of Principal Executive Offices)
(612) 227-7333
(Registrant's telephone number, including area code)
(Former name or former address, if changed since last report)
Item 2. Acquisition or Disposition of Assets.
On January 24, 1997, AEI Real Estate Fund XV Limited
Partnership sold a Children's World childcare center in
Moreno Valley, California. The property was sold for
$1,395,000, $392,000 in cash and a $1,003,000 Secured
Purchase Money Promissory Note. If not paid sooner, the
entire unpaid principal and interest is due March 25, 1997.
The Note bears interest at 10%. The property was sold to
Joseph and Juliann Schoepp, who are not affiliated with the
Partnership. The Partnership received net sale proceeds of
approximately $1,304,000, which resulted in a net gain of
approximately $657,000.
Item 7. Financial Statements and Exhibits.
(a) Financial statements of businesses acquired. -
Not Applicable.
(b) A limited number of proforma adjustments are
required to illustrate the effects of the
transaction on the balance sheet and income
statement. The following narrative
description is furnished in lieu of the
proforma statements:
Assuming the Partnership had sold the property
on September 30, 1996, the Partnership's
Investments in Real Estate would have been
reduced by $656,620, its Current Assets (cash
and receivables) would have been increased by
approximately $1,304,000, and Partner's
Capital would have increased by $647,380.
The Total Income for the Partnership would
have decreased from $702,350 to $645,584 for
the year ended December 31, 1995 and from
$552,725 to $501,383 for nine months ended
September 30, 1996 if the Partnership
consummated the sale at the beginning of those
periods. The decrease is attributable to the
Rental Income the Partnership would not have
received from the property of $135,006 and
$103,502, partially offset by an increase of
Investment Income of approximately $78,240 and
$52,160 for the year ended December 31, 1995
and the nine months ended September 30, 1996,
respectively.
Depreciation Expense would have decreased by
$32,757 and $24,568 for the year ended
December 31, 1995 and the nine months ended
September 30, 1996, respectively.
The net effect of these pro forma adjustments
would have caused Net Income to decrease from
$411,541 to $387,532 and from $531,256 to
$504,482, which would have resulted in Net
Income of $52.02 and $67.72 per Limited
Partnership Unit outstanding for the year
ended December 31, 1995 and the nine months
ended September 30, 1996, respectively.
(c) Exhibits
Exhibit 10.1 - Purchase Agreement
dated December 30, 1996 between
the Partnership, AEI Real Estate
Fund XV Limited Partnership and
Joseph Schoepp and Juliann Schoepp
relating to the property at 24693
Ironwood Avenue, Moreno Valley,
California.
Exhibit 10.2 - Secured Purchase
Money Promissory Note dated
January 24, 1997 between the
Partnership, AEI Real Estate Fund
XV Limited Partnership and Joseph
Schoepp and Juliann Schoepp
relating to the property at 24693
Ironwood Avenue, Moreno Valley,
California.
Exhibit 10.3 - Assignment of Lease
dated January 24, 1997 between the
Partnership, AEI Real Estate Fund
XV Limited Partnership and Joseph
Schoepp and Juliann Schoepp
relating to the property at 24693
Ironwood Avenue, Moreno Valley,
California.
Exhibit 10.4 - Deed of Trust With
Assignment of Rents dated January
24, 1997 between the Partnership,
AEI Real Estate Fund XV Limited
Partnership and Joseph Schoepp and
Juliann Schoepp relating to the
property at 24693 Ironwood Avenue,
Moreno Valley, California.
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned hereunto duly
authorized.
AEI REAL ESTATE FUND XV
LIMITED PARTNERSHIP
By: AEI Fund Management 86-A, Inc.
Its: Managing General Partner
Date: February 3, 1997 /s/ Mark E. Larson
By: Mark E. Larson
Its Chief Financial Officer
PURCHASE AGREEMENT
Children's World
Moreno Valley, CA
This AGREEMENT, entered into effective as of the 30 of
Dec, 1996 .
l. Parties. Seller is AEI Real Estate Fund XV Limited
Partnership, ("Seller"), Seller holds an undivided 100% interest
in the fee title to that certain real property legally described
in the attached Exhibit "A". (the "Property") Buyer is Joseph
Schoepp and Juliann Schoepp, Husband and Wife, and William
Schoepp and Evelyn Schoepp, Husband and Wife, as tenants in
common ("Buyer"). Seller wishes to sell and Buyer wishes to buy
the Property.
2. Property. The Property to be sold to Buyer in this transaction
is legally described on Exhibit A attached hereto, subject to all
easements, covenants, conditions, restrictions and agreements of
record ("Permitted Exceptions").
3. Purchase Price. The purchase price for this Property is
$1,395,000 based on the following terms:
4. Terms. The purchase price for the Property will be paid by
Buyer as follows:
(a) When this agreement is executed, Buyer will pay to
Seller $40,000 (the "First Payment"). The First Payment will
be credited against the purchase price when and if escrow
closes and the sale is completed, or otherwise disbursed
pursuant to the terms of this Agreement.
(b) Balance of purchase price, $1,355,000 to be deposited
into escrow on or before closing.
5 Closing Date. Escrow shall close on or before January 25,
1997.
6. Contingencies: Buyer agrees to use its best efforts to
secure a commitment for financing of $1,005,000 at an interest
rate not to exceed 9.25%, amortized over 30 years. Buyer agrees
to execute all documents reasonably required to consummate said
financing. In the event Buyer cannot secure a commitment for
such financing on or before thirty (30) days from the date first
written above, and in the event Buyer delivers to Seller on or
before said date written notice of its failure to secure said
commitment, then in such event this agreement shall become null
and void and the First Payment paid herein shall be refunded to
Buyer. Absent delivery of said notice by Buyer to Seller, and
absent default by Seller hereunder, after the expiration of said
thirty (30) days, this contingency to Buyer's obligations
hereunder shall be deemed satisfied, the First Payment shall be
non-refundable and shall be the sole property of Seller.
7. Due Diligence. Buyer will have until the expiration of the
tenth day (The "Review Period") after delivery of each of
following items, to be supplied by Seller, to conduct all of its
inspections and due diligence and satisfy itself regarding each
item, the Property, and this transaction. Buyer agrees to
indemnify and hold Seller harmless for any loss or damage to the
Buyer Initial: /s/ JS /s/ JS /s/ ES /s/ WS
Purchase Agreement for: Children's World - Moreno Valley, CA
Entire Property or persons caused if Buyer or its agents arising
out of such physical inspections of the Entire Property.
(a) The original and one copy of a title insurance
commitment for an Owner's Title insurance policy (see
paragraph 8 below).
(b) Copies of a Certificate of Occupancy or other such
document as of the date reflected thereon as may be in
Seller's possession certifying completion and granting
permission to permanently occupy the improvements on the
Entire Property.
(c) Copies of an "as built" survey of the Property done
concurrent with Seller's acquisition of the Property.
(d) Lease of the Property showing occupancy date, lease
expiration date, rent, and security deposit, if any, and
Guarantys, if any, accompanied by such tenant financial
statements as provided to Seller by the Tenant and/or
Guarantors.
(e) Within thirty (30) days after execution of this
Agreement by both parties, Buyer shall have the right to
inspect and obtain further investigations of the Property
(the "Inspection Period"). Buyer shall indemnify and hold
Seller harmless for any loss or damage caused by Buyer or
its agents in connection with the inspection.
Buyer acknowledges that the information provided and to be
provided by Seller with respect to the Property and to the
Tenant and Guarantors of Lease was obtained from a variety
of sources and Seller neither (a) has made independent
investigation or verification of such information, or (b)
makes any representations as to the accuracy or completeness
of such information. Seller is not aware that such
information is inaccurate or misleading.
At closing, Seller shall provide Buyer with an affidavit
under penalty of perjury, that Seller is not a "foreign
person".
Buyer may cancel this agreement for ANY REASON in its sole
discretion by delivering a cancellation notice by certified mail,
return receipt requested, or by personal delivery to Seller and
escrow holder before the expiration of the Review Period or
Inspection Period. Such notice shall be deemed effective only
upon receipt by Seller.
If Buyer cancels this Agreement as permitted under this
Section, except for any escrow cancellation fees and any
liabilities under sections 15(a) of this Agreement (which will
survive), Buyer (after execution of such documents reasonably
requested by Seller to evidence the termination hereof) shall be
returned its First Payment, and Buyer will have absolutely no
rights, claims or interest of any type in connection with the
Property or this transaction, regardless of any alleged conduct
by Seller or anyone else.
Unless this Agreement is canceled by Buyer pursuant to the
terms hereof, if Buyer fails to make the Second Payment, Seller
shall be entitled to retain the First Payment and Buyer
irrevocably will be deemed to have canceled this Agreement and
Buyer Initial: /s/ JS /s/ JS /s/ ES /s/ WS
Purchase Agreement for: Children's World - Moreno Valley, CA
relinquish all rights in and to the Property. If this Agreement
is not canceled and the Second Payment is made when required, all
of Buyer's conditions and contingencies will be deemed satisfied.
8. Escrow. Escrow shall be opened by Seller and the First Payment
deposited with Seller upon acceptance of this Agreement. A copy
of this Agreement will be delivered to the escrow holder and will
serve as escrow instructions together with the escrow holder's
standard instructions and any additional instructions required by
the escrow holder to clarify its rights and duties (and the
parties agree to sign these additional instructions). If there is
any conflict between these other instructions and this Agreement,
this Agreement will control.
9. Title. Closing will be conditioned on the commitment of a
title company selected by Seller and acceptable to Buyer to
issue an Owner's policy of title insurance, dated as of the close
of escrow, in an amount equal to the purchase price, insuring
that Buyer will own insurable title to the Property subject only
to: such matters as tenant Tenant has created, suffered or
permitted to accrue, the title company's standard exceptions;
current real property taxes and assessments; survey exceptions;
the rights of parties in possession pursuant to the lease defined
in paragraph 11 below; and other items of record disclosed to
Buyer during the contingency period not affecting marketability
of title.
Buyer shall be allowed five (5) days after receipt of said
commitment for examination and the making of any objections to
marketability of exceptions to title thereto, said objections to
be made in writing or deemed waived. If any objections are so
made, the Seller shall be allowed ten (10) days to make such
title marketable or cure Buyer's objections, or in the
alternative to obtain a commitment for insurable title insuring
over Buyer's objections. If Seller shall decide to make no
efforts to make title marketable, or is unable to make title
marketable or obtain insurable title, (after execution by Buyer
of such documents reasonably requested by Seller to evidence the
termination hereof) Buyer's First Payment shall be returned and
this agreement shall be null and void and of no further force and
effect.
Pending correction of title, the payments hereunder required
shall be postponed, but upon correction of title and within ten
(10) days after written notice of correction to the Buyer, the
parties shall perform this agreement according to its terms.
10. Closing Costs. Seller will pay the documentary
transfer taxes and one-half of escrow fees, and any brokerage
commissions payable except those brokerage commissions incurred
by Buyer. Seller shall pay for the cost of issuing the title
commitment. Buyer will pay the cost of the title insurance
premium for an Owner's policy, (if Buyer shall decide to purchase
the same) all recording fees, one-half of the escrow fees, the
costs of a update to the Survey in Seller's possession (if an
update is required by Buyer). Each party will pay its own
attorneys' fees and costs to document and close of this
transaction.
11. Real Estate Taxes, Special Assessments and Prorations.
Buyer Initial: /s/ JS /s/ JS /s/ ES /s/ WS
Purchase Agreement for: Children's World - Moreno Valley, CA
(a) Because the Entire Property is subject to a triple net
lease (as further set forth in paragraph 11(a)(i), the
parties acknowledge that there shall be no need for a real
estate tax proration. Seller represents that to the best of
its knowledge, all real estate taxes and installments of
special assessments due and payable in all years prior to
the year of Closing have been paid in full. Regardless,
responsibility for such taxes shall be prorated as of the
date of closing for any portion not paid by the Tenant of
the Property.
(b) All income and all operating expenses payable by Seller
from the Entire Property shall be prorated between the
parties and adjusted by them as of the date of Closing.
Seller shall be entitled to all income earned and shall be
responsible for all expenses incurred prior to the date of
Closing to the extent not paid by the Tenant.
12. Seller's Representation and Agreements.
(a) Seller represents and warrants as of this date that:
(i) Except for the lease in existence between AEI Real
Estate Fund XV Limited Partnership and Children's World
Learning Centers, Inc. ("Tenant") dated May 15, 1987, Seller
is not aware of any leases of the Property.
(ii) It is not aware of any pending litigation or
condemnation proceedings against the Property or Seller's
interest in the Property.
(iii) It is not aware of any contracts Seller has executed
that would be binding on Buyer after the closing date.
(iv) To the best knowledge of undersigned, there are no
wells, septic systems, drain fields or any other private
sewer system on the Property, nor any underground storage
tanks.
13. Disclosures.
(a) To the best of Seller's knowledge: there are not now,
and at the Closing there will be, no material, physical or
mechanical defects of the Property, including, without
limitation, the plumbing, heating, air conditioning,
ventilating, electrical systems, and all such items are in
good operating condition and repair and in compliance with
all applicable governmental , zoning and land use laws,
ordinances, regulations and requirements.
(b) To the best of Seller's knowledge: the use and
operation of the Property now is, and at the time of Closing
will be, in full compliance with applicable building codes,
safety, fire, zoning, and land use laws, and other
applicable local, state and federal laws, ordinances,
regulations and requirements.
(c) Seller knows of no facts nor has Seller failed to
disclose to Buyer any fact known to Seller which would
prevent the use and operation of the Property after the
Buyer Initial: /s/ JS /s/ JS /s/ ES /s/ WS
Purchase Agreement for: Children's World - Moreno Valley, CA
Closing in the manner in which the Property has been used
and operated prior to the date of this Agreement.
(d) To the best of Seller's knowledge: the Property is not,
and as of the Closing will not be, in violation of any
federal, state or local law, ordinance or regulations
relating to industrial hygiene or to the environmental
conditions on, under, or about the Property including, but
not limited to, soil and ground water conditions. To the
best of Seller's knowledge: there is no proceeding or
inquiry by any governmental authority with respect to the
presence of Hazardous Materials on the Property or the
migration of Hazardous Materials from or to other property.
Except as otherwise provided in this Agreement and except to
the extent that Seller has knowledge of any hazardous
substances or materials on or in connection with the
Property which Seller is not disclosing to Buyer hereunder,
Buyer agrees that Seller will have no liability of any type
to Buyer or Buyer's successors, assigns, or affiliates in
connection with any Hazardous Materials on or in connection
with the Property either before or after the Closing Date.
(e) Subject to Seller's representations contained in the
Agreement, including subparagraphs 12(a), (b), (c) and (d)
above, Buyer agrees that it shall be purchasing the Property
in its then present condition, as is, where is, and Seller
has no obligations to construct or repair any improvements
thereon or to perform any other act regarding the Property,
except as expressly provided herein.
(f) Buyer acknowledges that, having been given the
opportunity to inspect the Property and such financial
information on the Tenant and Guarantors of the Lease as
Buyer or its advisors shall request, Buyer is relying solely
on its own investigation of the Property and not on any
information provided by Seller or to be provided except as
set forth herein. Buyer expressly acknowledges that, in
consideration of the agreements of Seller herein, except as
otherwise specified herein, Seller makes no warranty or
representation, express or implied, or arising by operation
of law, including, but not limited to, any warranty or
condition, habitability, tenantability, suitability for
commercial purposes, merchantability, profitability or
fitness for a particular purpose, in respect of the
Property.
The provisions (d) through (f) above shall survive closing.
14. Closing.
At Closing, Seller shall deliver to Buyer the following:
(i) A standard Seller's Affidavit regarding liens
and judgments.
(ii) An Assignment of Seller's interest as lessor under
any and all leases affecting the Property.
(iii) Seller shall transfer to Buyer all escrows,
prepaid rent and security deposits, if any, with respect
to the Property.
Buyer Initial: /s/ JS /s/ JS /s/ ES /s/ WS
Purchase Agreement for: Children's World - Moreno Valley, CA
(a) Before the Closing Date, Seller will deposit into
escrow an executed grant deed conveying insurable title of
the Property to Buyer, subject to the encumbrances contained
in paragraph 8 above.
(b) On or before the closing date, Buyer will deposit into
escrow: the balance of the purchase price when required
under Section 4; any additional funds required of Buyer,
(pursuant to this agreement or any other agreement executed
by Buyer) to close escrow. Both parties will sign and
deliver to the escrow holder any other documents reasonably
required by the escrow holder to close escrow.
(c) On the closing date, if escrow is in a position to
close, the escrow holder will: record the deed in the
official records of the county where the Property is
located; cause the title company to commit to issue the
title policy; immediately deliver to Seller the portion of
the purchase price deposited into escrow by cashier's check
or wire transfer (less debits and prorations, if any);
deliver to Seller and Buyer a signed counterpart of the
escrow holder's certified closing statement and take all
other actions necessary to close escrow.
(d) Buyer is required to provide to the escrow agent a
Preliminary Change of Ownership Statement.
15. Defaults. If Buyer defaults, Buyer will forfeit all rights
and claims and Seller will be relieved of all obligations and
will be entitled to retain the First Payment heretofore paid by
the Buyer. Seller shall retain all remedies available to Seller
at law or in equity.
If Seller shall default, Buyer irrevocably waives any rights
to file a lis pendens, a specific performance action or any other
claim, action or proceeding of any type in connection with the
Property or this or any other transaction involving the Property,
and will not do anything to affect title to the Property or
hinder, delay or prevent any other sale, lease or other
transaction involving the Property (any and all of which will be
null and void), unless: it has paid the First Payment, performed
all of its other obligations and satisfied all conditions under
this Agreement, and unconditionally notifies Seller that it
stands ready to tender full performance, purchase the Property
and close escrow as per this Agreement. Provided, however, that
in no event shall Seller be liable for any actual, punitive,
consequential or speculative damages arising out of any default
by Seller hereunder.
16. Buyer's Representations and Warranties.
a. Buyer represents and warrants to Seller as follows:
(i) In addition to the acts and deeds recited herein and
contemplated to be performed, executed, and delivered by
Buyer, Buyer shall perform, execute and deliver or cause to
be performed, executed, and delivered at the Closing or
after the Closing, any and all further acts, deeds and
assurances as Seller or the Title Company may require and
Buyer deems to be reasonable in order to consummate the
transactions contemplated herein.
Buyer Initial: /s/ JS /s/ JS /s/ ES /s/ WS
Purchase Agreement for: Children's World - Moreno Valley, CA
(ii) Buyer has all requisite power and authority to
consummate the transaction contemplated by this Agreement
and has by proper proceedings duly authorized the execution
and delivery of this Agreement and the consummation of the
transaction contemplated hereby.
(iii) To Buyer's knowledge, neither the execution and
delivery of this Agreement nor the consummation of the
transaction contemplated hereby will violate or be in
conflict with (a) any applicable provisions of law, (b) any
order of any court or other agency of government having
jurisdiction hereof, or (c) any agreement or instrument to
which Buyer is a party or by which Buyer is bound.
17. Damages, Destruction and Eminent Domain.
(a) If, prior to closing, the Property or any part thereof
be destroyed or further damaged by fire, the elements, or
any cause, due to events occurring subsequent to the date of
this Agreement to the extent that the cost of repair exceeds
$10,000 this Agreement shall become null and void, at
Buyer's option exercised, if at all, by written notice to
Seller within ten (10) days after Buyer has received written
notice from Seller of said destruction or damage. Seller,
however, shall have the right to adjust or settle any
insured loss until (i) all contingencies set forth in
Paragraph 6 hereof have been satisfied, or waived; and (ii)
any period provided for above in this Subparagraph 16a for
Buyer to elect to terminate this Agreement has expired or
Buyer has, by written notice to Seller, waived Buyer's right
to terminate this Agreement. If Buyer elects to proceed and
to consummate the purchase despite said damage or
destruction, there shall be no reduction in or abatement of
the purchase price, and Seller shall assign to Buyer the
Seller's right, title, and interest in and to all insurance
proceeds resulting from said damage or destruction to the
extent that the same are payable with respect to damage to
the Property, subject to rights of any Tenant of the
Property.
If the cost of repair is less than $10,000.00, Buyer shall
be obligated to otherwise perform hereinunder with no
adjustment to the Purchase Price, reduction or abatement,
and Seller shall assign Seller's right, title and interest
in and to all insurance proceeds, subject to rights of any
Tenant of the Property.
(b) If, prior to closing, the Property, or any part
thereof, is taken by eminent domain, this Agreement shall
become null and void, at Buyer's option. If Buyer elects to
proceed and to consummate the purchase despite said taking,
there shall be no reduction in, or abatement of, the
purchase price, and Seller shall assign to Buyer all the
Seller's right, title, and interest in and to any award
made, or to be made, in the condemnation proceeding, subject
to rights of any Tenant of the Property.
In the event that this Agreement is terminated by Buyer as
provided above in Subparagraph 16a or 16b, the First Deposit
shall be immediately returned to Buyer (after execution by Buyer
of such documents reasonably requested by Seller to evidence the
termination hereof).
Buyer Initial: /s/ JS /s/ JS /s/ ES /s/ WS
Purchase Agreement for: Children's World - Moreno Valley, CA
18. Buyer's 1031 Tax Free Exchange.
While Seller acknowledges that Buyer is purchasing the
Property as "replacement property" to accomplish a tax free
exchange, Buyer acknowledges that Seller has made no
representations, warranties, or agreements to Buyer or Buyer's
agents that the transaction contemplated by the Agreement will
qualify for such tax treatment, nor has there been any reliance
thereon by Buyer respecting the legal or tax implications of the
transactions contemplated hereby. Buyer further represents that
it has sought and obtained such third party advice and counsel as
it deems necessary in regards to the tax implications of this
transaction.
Buyer wishes to novate/assign the ownership rights and
interest of this Purchase Agreement to Lombard Exchange who will
act as Facilitator to perfect the 1031 exchange by preparing an
agreement of exchange of Real Property whereby Lombard Exchange
will be an independent third party purchasing the ownership interest
in subject property from Seller and selling the ownership
interest in subject property to Buyer under the same terms and
conditions as documented in this Purchase Agreement. Buyer asks
the Seller to cooperate in the perfection of such an exchange at
no additional cost or expense or delay in time. Buyer hereby
indemnifies and holds Seller harmless from any claims and/or
actions resulting from said exchange. Pursuant to the direction
of Lombard Exchange, Seller will deed the property to Buyer.
19. Cancellation
If any party elects to cancel this Contract because of any
breach by another party, the party electing to cancel shall
deliver to escrow agent a notice containing the address of
the party in breach and stating that this Contract shall be
canceled unless the breach is cured within 13 days following
the delivery of the notice to the escrow agent. Within
three days after receipt of such notice, the escrow agent
shall send it by United States Mail to the party in breach
at the address contained in the Notice and no further notice
shall be required. If the breach is not cured within the 13
days following the delivery of the notice to the escrow
agent, this Contract shall be canceled.
20. Miscellaneous.
(a) This Agreement may be amended only by written agreement
signed by both Seller and Buyer, and all waivers must be in
writing and signed by the waiving party. Time is of the
essence. This Agreement will not be construed for or
against a party whether or not that party has drafted this
Agreement. If there is any action or proceeding between the
parties relating to this Agreement the prevailing party will
be entitled to recover attorney's fees and costs. This is
an integrated agreement containing all agreements of the
parties about the Property and the other matters described,
and it supersedes any other agreements or understandings.
Exhibits attached to this Agreement are incorporated into
this Agreement.
Buyer Initial: /s/ JS /s/ JS /s/ ES /s/ WS
Purchase Agreement for: Children's World - Moreno Valley, CA
(b) If this escrow has not closed by January 25, 1997,
through no fault of Seller, Seller may either, at its
election, extend the closing date, exercise any remedy
available to it by law, or terminate this Agreement and
return all funds there to fore paid by Buyer, except as
otherwise specified herein.
(c) Funds to be deposited or paid by Buyer will be good and
clear funds in the form of cash, cashier's checks or wire
transfers.
(d) All notices from either of the parties hereto to the
other shall be in writing and shall be considered to have
been duly given or served if sent by first class certified
mail, return receipt requested, postage prepaid, or by a
nationally recognized courier service guaranteeing overnight
delivery to the party at his or its address set forth below,
or to such other address as such party may hereafter
designate by written notice to the other party.
If to Seller:
Attention: Robert P. Johnson
AEI Real Estate Fund XV Limited Partnership
1300 Minnesota World Trade Center
30 E. 7th Street
St. Paul, MN 55101
If to Buyer:
Attention: Todd Ganus
San Francisco Investment Management
1 Sansom Street 21st Floor
San Francisco, CA 91107
When accepted, this offer will be a binding agreement for
valid and sufficient consideration which will bind and benefit
Buyer, Seller and their respective successors and assigns. Buyer
is submitting this offer by signing a copy of this offer and
delivering it to Seller along with the $40,000 First Payment,
which, if accepted, a fully executed copy of this Agreement will
be sent to the escrow agent by Seller. Seller has two (2)
business days after receipt of the executed offer and First
Payment within which to accept this offer; if not accepted by
Seller, Seller shall immediately return the payment to Buyer.
(e) Buyer may assign this Agreement as long as Buyer
remains liable hereunder.
Buyer Initial: /s/ JS /s/ JS /s/ ES /s/ WS
Purchase Agreement for: Children's World - Moreno Valley, CA
IN WITNESS WHEREOF, the Seller and Buyer have executed this
Agreement effective as of the day and year above first written.
BUYER: JOSEPH SCHOEPP AND JULIANN SCHOEPP, HUSBAND AND WIFE
AND WILLIAM SCHOEPP AND EVELYN SCHOEPP, HUSBAND AND WIFE,
AS TENANTS IN COMMON
By: /s/ Joseph Schoepp
Joseph Schoepp
By: /s/ Juliann Schoepp
Juliann Schoepp
By: /s/ William Schoepp
William Schoepp
By: /s/ Evelyn Schepp
Evelyn Schoepp
SELLER: AEI REAL ESTATE FUND XV LIMITED PARTNERSHIP, a Minnesota
limited partnership.
By: AEI Fund Management 86-A Inc., its corporate general partner
By: /s/ Robert P. Johnson
Robert P. Johnson, President
Buyer Initial: /s/ JS /s/ JS /s/ ES /s/ WS
Purchase Agreement for: Children's World - Moreno Valley, CA
Exhibit "A"
The land refrred to in this policy is situated in the County of Riverside,
State of California, and is described as follows:
Parcel 1 of Parcel Map 20964 in the City of Moreno Valley, County of
Riverside, State of California, as per map recorded in Book 137,
Pages 30 through 31 of Parcel Maps, in the Office of the County Recorder
of said county.
SECURED PURCHASE MONEY PROMISSORY NOTE
$1,003,000.00 Riverside, California
Effective as of January 24, 1997
FOR VALUE RECEIVED, the undersigned, JOSEPH SCHOEPP,
JULIANN SCHOEPP, WILLIAM SCHOEPP and EVELYN SCHOEPP ("Makers")
hereby promise to pay to AEI REAL ESTATE FUND XV LIMITED
PARTNERSHIP, a Minnesota limited partnership ("Holder"), or
order, at St. Paul, Minnesota, the principal sum of One Million
Three Thousand Dollars ($1,003,000.00), together with interest
thereon at the rate of Ten Percent (10%) per annum, such interest
to accrue from the effective date written above ("Closing Date").
The entire unpaid principal balance of this Note and
all accrued but unpaid interest thereon will be fully due and
payable sixty (60) days following the Closing Date endorsed
hereon (the "Maturity Date"). The Makers shall make a payment of
accrued interest of $8,243.70 for and on thirtieth day following
the Closing Date, to be applied solely to accrued interest and
not to principal.
1. All payments hereunder shall be paid in lawful
money of the United States of America to Holder at 1300 Minnesota
World Trade Center, 30 East Seventh Street, St. Paul, Minnesota
55101 or such other place as Holder may designate from time to
time.
2. All payments on account of the indebtedness
evidenced by this Note shall be first applied to the interest on
the unpaid principal balance, and the remainder to principal.
Interest shall be calculated for payment and accrual purposes on
the basis of a 365-day year and the actual number of days
elapsed.
3. This Note is secured by a Deed of Trust to Chicago
Title Company, a California corporation, as trustee.
4. Should default be made in any payment when due
under this Note or in the performance or observance of any of the
covenants and agreements of this Note, then and in any such
event, the Holder hereof may, at Holder's option, declare this
Note and the entire indebtedness hereby evidenced to be
immediately due and payable, regardless of the Maturity Date.
5. Makers agree to indemnify Holder and to hold
Holder and Holder's successors and assigns harmless from and
against any and all claims, demands, costs, liabilities and
obligations of any kind or nature arising out of any default
hereunder, including without limitation all costs of collection,
including reasonable attorneys' fees and all costs of suit, in
the event the unpaid principal sum of this Note and/or any
interest thereon is not paid when due.
6. The indebtedness evidenced by this Note may be
prepaid without penalty in whole or in part at any time prior to
the Maturity Date.
7. In the event Makers fail to make any required
payment of principal and/or interest under this Note within ten
(10) days after such payment becomes due and payable, a late
charge of six percent (6%) of the overdue payment of principal
and/or interest (or of principal only if by the laws of the State
of California a late charge may not be charged on overdue
interest) may be charged by Holder, unless applicable law
requires a lesser such charge, in which event the maximum rate
permitted by such law may be charged by Holder. The parties
agree that this late charge represents a reasonable sum
considering all of the circumstances existing on the date of this
Note and represents a fair and reasonable estimate of the costs
and damages that Holder will incur by reason of the late payment.
The parties further agree that proof of actual damages would be
costly or inconvenient. Acceptance of any late charge shall not
constitute a waiver of the default with respect to the overdue
amount, and shall not prevent Holder from exercising any of the
other rights and remedies available to Holder. The foregoing
shall not be construed as obligating the Holder to accept any
payment after its due date.
Makers waive, to the maximum extent permitted by law,
the provisions of California Civil Code Section 2954.5 regarding
the notices prerequisite to the imposition of delinquent payment
charges.
8. It is the intention of Makers and Holder to
conform strictly to the usury laws now or hereafter enforced in
the State of California, and any interest payable under this Note
and/or any of the other documents to be executed by Makers in
connection with the loan made or to be made hereunder, shall be
subject to reduction to the amount not in excess of the maximum
non-usurious amount allowed under the usury laws of California as
now or hereafter construed by the courts having jurisdiction over
such matters. In the event the maturity of this Note is
accelerated by reason of any provision of this Note or by reason
of an election by Holder resulting from any default (or an event
permitting acceleration), under this Note or any other instrument
given to secure the payment hereof, or otherwise, then earned
interest may never include more than the maximum amount permitted
by law, computed from the date hereof until payment, and any
interest in excess of the maximum amount permitted by law shall
be canceled automatically and, if theretofore paid, shall at the
option of the Holder either be rebated to Makers or be credited
on the principal amount of this Note or if all principal has been
repaid then the excess shall be rebated to Makers. The aggregate
of all interest (whether designated as interest, service charges,
points, or otherwise) contracted for, chargeable, or receivable
under this Note or any other document executed in connection
herewith shall under no circumstances exceed the maximum legal
rate upon the unpaid principal balance of this Note remaining
unpaid from time to time. In the event such interest does exceed
the maximum legal rate, such excess shall be canceled
automatically and if theretofore paid, rebated to the undersigned
or credited on the principal amount of this Note, or if the Note
has been repaid, then such excess shall be rebated to Makers.
9. Should all or any portion of the real property
encumbered by the Deed of Trust which secures this Note, or any
interest therein, be sold, alienated or conveyed, the Holder of
this Note may declare the entire unpaid principal balance plus
any accrued interest fully due and payable. This acceleration
provision shall apply to the conveyance or alienation of any
interest in the property whatsoever, whether equitable or legal,
recorded or unrecorded, and shall include, without limitation,
"outright sale," a land sale contract, a lease with a term of
more than three (3) years, a lease with option to purchase, and
conveyances in trust. This acceleration provision shall not
apply to a lease of the Property or conveyances to affiliates of
Makers (for purposes hereof, an "affiliate" is an entity
controlled by, under the control of or under the common control
with Makers).
10. Makers acknowledge and agree that Makers shall not
have any rights whatsoever to set-off against amounts due
hereunder or otherwise due Holder any amount or obligation due
Makers or claimed to be due Makers from Holder.
11. The unenforceability or invalidity of any
provision or provisions of this Note as to any persons or
circumstances shall not render that provision or those provisions
unenforceable or invalid as to any other persons or
circumstances, and all provisions hereof, in all other respects,
shall remain valid and enforceable.
12. This Note shall bind Makers and their successors
and assigns and the benefits hereof shall inure to Holder and
Holder's successors and assigns.
13. Principal and interest are payable in lawful money
of the United States. The validity, interpretation and
performance of this Note shall be governed by and construed in
accordance with the laws of the State of California.
14. Time is of the essence of this Note.
MAKERS:
/s/ Joseph Schoepp
JOSEPH SCHOEPP
/s/ Juliann Schoepp
JULIANN SCHOEPP
/s/ William Schoepp
WILLIAM SCHOEPP
/s/ Evelyn Schoepp
EVELYN SCHOEPP
ASSIGNMENT OF LEASE
THIS ASSIGNMENT, made this 24th day of January 1997, by
AEI Real Estate Fund XV Limited Partnership, whose address is
1300 Minnesota World Trade Center, St. Paul, Minnesota 55101
(herein called "Assignor") to JOSEPH SCHOEPP, JULIANN SCHOEPP,
WILLIAM SCHOEPP and EVELYN SCHOEPP (together, herein called
"Assignee"), WITNESSETH:
FOR VALUE RECEIVED, Assignor hereby grants, transfers and
assigns to Assignee all of the right, title and interest of
Assignor in and to that certain lease by and between Assignor and
Kids Unlimited, Inc., dated March 1, 1987, (the same constituting
all of the written leases affecting the Premises as herein after
defined)(said lease hereinafter being referred to as the
"Lease"), which Lease demises all of the real estate ("Premises")
described in Exhibit A attached hereto, together with any and all
extensions and renewals thereof, together with the immediate and
continuing right to collect and receive all rents, income,
payments and profits arising out of said Lease or out of the
Premises or any part thereof ("Rents"), together with the right
to all proceeds payable to Assignor pursuant to any purchase
options on the part of Tenant under the Lease, together with all
payments derived therefrom, if any, including but not limited to
future claims for the recovery of damages done to the Premises or
for the abatement of any nuisance existing thereon, future claims
for damages resulting from default under said Lease whether
resulting from acts of insolvency or acts of bankruptcy or
otherwise, and lump sum payments for the cancellation of said
lease or the waiver of any obligation or term thereof prior to
the expiration date and the return of any insurance premiums or
ad valorem tax payments made in advance and subsequently
refunded, and all rights to that certain Guarantee of Lease dated
March 11, 1987 by Children's World, Inc.;
AND ASSIGNOR FURTHER AGREES, ASSIGNS AND COVENANTS:
1. Representations. Assignor represents and warrants that
it is now the absolute owner of said Lease with full right and
title to assign the same and the Rents; that said Lease is valid,
in full force and effect and has not been modified or amended
except as disclosed to Assignee; that there are no outstanding
assignments or pledges thereof; that there are no existing
defaults under the provisions thereof on the part of any party to
the Lease; that no Rents have been waived, anticipated,
discounted, compromised or released; and that Tenant has no
defenses, setoffs, or counterclaims against Assignor.
2. Present Assignment. This Assignment shall constitute a
perfected, absolute and present assignment.
3. No Liability For Assignee. The Assignee shall not be
obligated to perform or discharge, nor does it hereby undertake
to perform or discharge any obligation, duty or liability under
said Lease incurred prior to the date hereof nor shall this
Assignment operate to place responsibility for the control, care,
management or repair of the Premises prior to the date hereof
upon the Assignee nor for the carrying out of any of the terms
and conditions of said Lease; nor shall it operate to make the
Assignee responsible or liable for any waste committed on the
Premises, or for any dangerous or defective condition of the
Premises, or for any negligence in the management, upkeep, repair
or control of said Premises, prior to the date hereof resulting
in loss or injury or death to any tenant, licensee, employee or
stranger nor liable for laches or failure to collect the rents
and Assignee shall be required to account only for such moneys as
are actually received by it.
4. Assignor Hold Assignee Harmless. The Assignor shall
and does hereby agree to indemnify and to hold Assignee harmless
of and from any and all liability, loss or damage which it may or
might incur under said Lease or under or by reason of this
Assignment, of and from any and all claims and demands whatsoever
which may be asserted against it by reason of any alleged
obligations or undertakings on Assignee's part to perform or
discharge any of the terms, covenants or agreements contained in
said Lease prior to the date hereof. Should the Assignee incur
any such liability, or in the defense of any such claims or
demands, the amount thereof, including costs, expenses, and
reasonable attorney's fees, Assignor shall reimburse the
Assignee therefor immediately upon demand,
5. Assignee Hold Assignor Harmless. The Assignee shall
and does hereby agree to indemnify and to hold Assignor harmless
of and from any and all liability, loss or damage which it may or
might incur under said Lease or under or by reason of this
Assignment and of and from any and all claims and demands
whatsoever which may be asserted against it by reason of any
alleged obligations or undertakings on Assignor's part to perform
or discharge any of the terms, covenants or agreements contained
in said Lease on or after the date hereof. Should the Assignor
incur any such liability, or in the defense of any such claims or
demands, the amount thereof, including costs, expenses, and
reasonable attorney's fees, Assignee shall reimburse the
Assignor therefor immediately upon demand.
6. Security Deposits. The Assignor represents that there
are no security deposits held by Assignor under the terms of the
Lease(s).
7. Authorization To Tenant. The Tenant under the Lease is
hereby irrevocably authorized and directed to recognize the
claims of Assignee hereunder. Assignor hereby irrevocably
directs and authorizes the Tenant to pay to Assignee all sums due
under the Lease and consents and directs that said sums shall be
paid to Assignee. The sole signature of the Assignee shall be
sufficient for the exercise of any rights under this Assignment
and the sole receipt of the Assignee for any sums received shall
be a full discharge and release therefor to any such Tenant or
occupant of the Premises. Checks for all or any part of the
rentals collected under this Assignment shall upon notice from
the Assignee be drawn to the exclusive order of the Assignee.
8. Successors And Assigns. This Assignment and each and
every covenant, agreement and provision hereof shall be binding
upon the Assignor and its successors and assigns including
without limitation each and every from time to time record owner
of the Premises or any other person having an interest therein
and shall inure to the benefit of the Assignee and its successors
and assigns. As used herein the words "successors and assigns"
shall also be deemed to mean the heirs, executors,
representatives and administrators of any natural person who is a
party to this Assignment.
9. Governing Law. This Assignment is intended to be
governed by the laws of the State of California.
IN WITNESS WHEREOF, the Assignor and Assignee have caused
this Assignment of Lease to be executed as of the date first
above written.
AEI REAL ESTATE FUND XV LIMITED PARTNERSHIP, a Minnesota
limited partnership
By: AEI Fund Management 86-A, Inc., its corporate
general partner
By: /s/ Robert P. Johnson
Robert P. Johnson, President
STATE OF MINNESOTA )
)SS.
COUNTY OF RAMSEY )
The foregoing instrument was acknowledged before me the
21st day of January, 1997, by Robert P. Johnson, the President of AEI
Fund Management 86-A, Inc., a Minnesota corporation, corporate
general partner of AEI Real Estate Fund XV Limited Partnership,
on behalf of said limited partnership.
/s/ Linda A. Bisdorf
Notary Public
[notary seal]
/s/ Joseph Schoepp
JOSEPH SCHOEPP
/s/ Juliann Schoepp
JULIANN SCHOEPP
/s/ William Schoepp
WILLIAM SCHOEPP
/s/ Evelyn Schoepp
EVELYN SCHOEPP
ACKNOWLEDGMENTS
CAPACITY CLAIMED BY SIGNER:
Individual(s)
Corporate
Officer(s)
Partner(s)
Attorney-in-Fact
Trustee(s)
Subscribing Witness
Guardian/Conservator
Other
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
STATE OF CALIFORNIA }
}
COUNTY OF SAN FRANCISCO }
On January 20, 1997, before me, the
undersigned notary public, personally appeared
Julianne Schoepp , personally known to me OR proved
to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Christian Fernandez
Signature of Notary [notary seal]
CAPACITY CLAIMED BY SIGNER:
Individual(s)
Corporate
Officer(s)
Partner(s)
Attorney-in-Fact
Trustee(s)
Subscribing Witness
Guardian/Conservator
Other
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
STATE OF CALIFORNIA }
}
COUNTY OF SAN FRANCISCO }
On January 20, 1997, before me, the
undersigned notary public, personally appeared
Joseph Schoepp , personally known to me OR proved
to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Christian Fernandez
Signature of Notary [notary seal]
ACKNOWLEDGMENTS
CAPACITY CLAIMED BY SIGNER:
Individual(s)
Corporate
Officer(s)
Partner(s)
Attorney-in-Fact
Trustee(s)
Subscribing Witness
Guardian/Conservator
Other
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
STATE OF CALIFORNIA }
}
COUNTY OF MARIN }
On January 20 , 1997, before me, the
undersigned notary public, personally appeared
William Schoepp , personally known to me OR proved
to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Alfred Mammini
Signature of Notary [notary seal]
CAPACITY CLAIMED BY SIGNER:
Individual(s)
Corporate
Officer(s)
Partner(s)
Attorney-in-Fact
Trustee(s)
Subscribing Witness
Guardian/Conservator
Other
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
STATE OF CALIFORNIA }
}
COUNTY OF MARIN }
On January 20, 1997, before me, the
undersigned notary public, personally appeared
Evelyn Schoepp , personally known to me OR proved
to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Alfred Mammini
Signature of Notary [notary seal]
EXHIBIT "A"
LEGAL DESCRIPTION OF LAND
That certain real property located in
the City of Moreno Valley, Riverside County, California,
described as follows:
Parcel 1 of Parcel Map No. 20964 in the City of Moreno Valley,
County of Riverside, State of California, as per Map Recorded in
Book 137, Pages 30 through 31 of Parcel Maps, in the
office of the County Recorder of said County.
RECORDING REQUESTED BY:
WHEN RECORDED MAIL TO:
AEI Real Estate Fund XV Limited Partnership
1300 Minnesota World Trade Center
30 East Seventh Street
St. Paul, MN 55101
Attn: Robert P. Johnson
SPACE ABOVE LINE FOR RECORDER'S USE
DEED OF TRUST WITH ASSIGNMENT OF RENTS
THIS DEED OF TRUST WITH ASSIGNMENT OF RENTS ("Deed of
Trust"), dated January 24th, 1997, is made by JOSEPH
SCHOEPP, JULIANN SCHOEPP, WILLIAM SCHOEPP and EVELYN SCHOEPP
(collectively "Trustor"), whose address is 501 Urbano Drive, San
Fransico, California 94127, in favor of Chicago Title Company
("Trustee") and AEI REAL ESTATE FUND XV LIMITED PARTNERSHIP, a
Minnesota limited partnership whose address is 1300 Minnesota
World Trade Center, 30 East Seventh Street, St. Paul, Minnesota
55101 ("Beneficiary"). Capitalized terms used herein and not
otherwise defined are used with the meanings set forth in Exhibit
"B" attached hereto and incorporated herein by reference.
1. Grant in Trust and Security Agreement. For valuable
consideration, Trustor irrevocably grants, transfers and assigns
to Trustee, in trust, with power of sale, for the benefit of
Beneficiary, the following property ("Trust Estate"):
1 the real property described in Exhibit "A" attached to
this Deed of Trust and incorporated in this Deed of Trust by
reference ("Land");
2 all buildings, structures and other improvements now or
in the future located or to be constructed on the Land
("Improvements");
3 all tenements, hereditaments, appurtenances, privileges
and other rights and interests now or in the future benefitting
or otherwise relating to the Land or the Improvements, including
easements, rights-of-way, development rights, mineral rights,
water rights and water stock ("Appurtenances," and together with
the Land and the Improvements, the "Real Property"); and
4 subject to the assignment to Beneficiary set forth in
Section 3.8 below, all rents, issues, income, revenues, royalties
and profits now or in the future payable with respect to or
otherwise derived from the Real Property or the ownership, use,
management, operation, leasing or occupancy of the Real Property,
including those past due and unpaid ("Rents").
2. Obligations Secured. This Deed of Trust is given for
the purpose of securing payment and performance of the following
("Secured Obligations"): (1) payment of the sum of One Million
Three Thousand Dollars ($1,003,000.00) with interest thereon
according to the terms of the promissory note of even date
herewith made by Trustor, payable to order of the Beneficiary,
and extensions or renewals thereof ("Promissory Note"); (2) the
performance of each agreement of Trustor incorporated by
reference or contained herein or reciting it is so secured; (3)
payment of additional sums and interest thereon which may
hereafter be loaned to Trustor or their successors or assigns,
when evidenced by a promissory note or notes reciting that they
are secured by this Deed of Trust.
3. Trustor's Covenants. To protect the security of this
Deed of Trust, Trustor agrees as follows:
1 Payment and Performance of Secured Obligations.
Trustor shall pay and perform all Secured Obligations in
accordance with the respective terms of such Secured Obligations,
whether evidenced by or arising under this Deed of Trust, the
Promissory Note or otherwise.
2 Maintenance of Trust Estate. Unless Beneficiary
otherwise consents in writing, Trustor shall (i) keep the Real
Property in good condition and repair, and promptly and in a good
and workmanlike manner (and with new materials of good quality)
complete any Improvements to be constructed on the Land, repair
or restore any part of the Real Property that may be injured,
damaged or destroyed, and in each case pay when due all valid
claims for labor, service, equipment and material and any other
costs incurred in connection with any such action, (ii) not
remove, demolish or materially alter any Improvements, (iii) not
construct any Improvements on the Land or undertake any site
development work unless approved by Beneficiary, (iv) not commit
or permit any waste of any part of the Real Property, (v) not
permit or consent to any restriction that would prevent or
otherwise impair the use or development of the Real Property,
(vi) comply in all material respects with all Laws and Other
Requirements, and not commit or permit any material violation of
any Laws or Other Requirements, which affect any part of the
Trust Estate or require any alterations or improvements to be
made to any part of the Real Property, (vii) take such action
from time to time as may be reasonably necessary or appropriate,
or as Beneficiary may reasonably require, to protect the physical
security of the Real Property, (viii) not part with possession of
or abandon any part of the Trust Estate or cause or permit any
interest in any part of the Trust Estate to be sold, transferred,
leased, encumbered, released, relinquished, terminated or
otherwise disposed of (whether voluntarily, by operation of law
or otherwise), and (ix) take all other action which may be
reasonably necessary or appropriate to preserve, maintain and
protect the Trust Estate, including the enforcement or
performance of any rights or obligations of Trustor or any
conditions with respect to any Rights.
Without limitation on any obligations of Trustor under
the preceding paragraph, in the event that (i) all or a
substantial or material portion of the Real Property is injured,
damaged or destroyed by fire or other casualty, or (ii) any of
the Real Property is damaged, destroyed or lost and any Damage
Proceeds (as defined in Section 3.3) are payable as a result of
such occurrence or the cost of the repair, restoration or
replacement is reasonably expected to exceed $50,000, or (iii)
any part (but less than all) of the Real Property is condemned,
seized or appropriated by any Governmental Agency (or conveyed,
with Beneficiary's consent, in lieu of any such action), the
following additional provisions shall apply:
2.1 within 30 days (or such longer period as
Beneficiary may approve in writing) after the date of such
injury, damage, destruction, loss or other event, Trustor shall
deliver to Beneficiary, in form and substance reasonably
satisfactory to Beneficiary: (1) a written plan for the repair,
restoration or replacement of the Real Property (any such
repair, restoration or replacement being referred to as a
"Restoration"), including the estimated cost of the Restoration
and time of completion, (2) if requested by Beneficiary, a copy
of the plans and specifications for the Restoration, and (3) such
other Documents and information relating to the Restoration as
Beneficiary may reasonably request;
2.2 if and to the extent required by Beneficiary, any
contracts entered into by Trustor with architects, contractors,
subcontractors or suppliers in connection with the Restoration
shall be in form and substance and with a Person reasonably
satisfactory to Beneficiary;
2.3 the Restoration shall be conducted in accordance
with such procedures and requirements as Beneficiary may
reasonably specify, and shall be in substantial conformity with
the applicable plans and specifications and the plan referred to
in Section 3.2.1 above and in compliance in all material respects
with all applicable Laws and Other Requirements;
2.4 if Beneficiary reasonably determines at any time
that any available Damage Proceeds that Beneficiary may be
required to release to Trustor for the Restoration pursuant to
Section 3.3 are or may be insufficient to pay for all costs of
completing the Restoration, then Trustor shall deposit with
Beneficiary, on demand, an amount deemed reasonably necessary by
Beneficiary to cover such insufficiency (any such amount to be
held and disbursed by Beneficiary in accordance with Section
3.2.5 below); and
2.5 any Damage Proceeds that Beneficiary may be
required to release to Trustor for the Restoration pursuant to
Section 3.3, together with any amounts deposited by Trustor with
Beneficiary pursuant to Section 3.2.4 above, shall be held by
Beneficiary in a cash collateral account over which Beneficiary
shall have sole and exclusive control and right of withdrawal),
shall be used solely to pay the cost of the Restoration and shall
be disbursed in accordance with such terms, conditions and
procedures as Beneficiary may reasonably require (including
compliance by Trustor with the provisions of Sections 3.2.1
through 3.2.4 above), provided that (1) Beneficiary shall have no
obligation to disburse any such amounts if an Event of Default
has occurred and is continuing, and (2) if the amount of any such
Damage Proceeds received by Beneficiary exceeds the cost of
completing the Restoration, the excess may be applied by
Beneficiary to the Secured Obligations in such order and manner
as Beneficiary may determine or, at the option of Beneficiary,
may be released to Trustor.
Any application or release of Damage Proceeds or
additional amounts deposited with Beneficiary pursuant to Section
3.2.4 above (whether under this Section 3.2 or Section 3.3) shall
not cure or waive any Event of Default or notice of default or
invalidate any act done pursuant to such notice.
3 Insurance, Condemnation and Damage Claims. Trustor
shall maintain property "all risk" insurance covering the
Improvements in such forms and amounts and with such insurance
companies as shall be approved by Beneficiary. All proceeds of
any claim, demand, award, settlement or other payment arising or
resulting from or otherwise relating to any such insurance of any
loss or destruction of, injury or damage to, trespass on or
taking, condemnation (or conveyance in lieu of condemnation) or
public use of any of the Real Property ("Damage Claim") are
assigned and shall be payable and delivered to Beneficiary (any
such proceeds of any Damage Claim being referred to in this Deed
of Trust as "Damage Proceeds"). Trustor shall take all action
reasonably necessary or required by Beneficiary in order to
protect Trustor's and Beneficiary's rights and interests with
respect to any Damage Claim, including the commencement of,
appearance in and prosecution of any appropriate action or other
proceeding, and Beneficiary may in its discretion participate in
any such action or proceeding at the expense of Trustor.
So long as no Event of Default has occurred and is
continuing, Trustor may settle, compromise or adjust any Damage
Claim with the prior written consent of Beneficiary (which shall
not be unreasonably withheld). Upon the occurrence and during
the continuance of any Event of Default, Beneficiary shall have
the sole right to settle, compromise or adjust any Damage Claim
in such manner as Beneficiary may determine, and for this purpose
Beneficiary may, in its own name or in the name of Trustor, take
such action as Beneficiary deems appropriate to realize on any
such Damage Claim. In either case, all Damage Proceeds payable
in connection with any such Damage Claim shall be delivered
directly to Beneficiary as provided in the preceding paragraph.
Any Damage Proceeds received by Beneficiary may be
applied by Beneficiary in payment of the Secured Obligations in
such order and manner as Beneficiary may determine, provided that
so long as no Event of Default has occurred and is continuing,
Beneficiary shall release such Damage Proceeds to Trustor for the
Restoration of the Real Property in the manner set forth in
Section 3.2, except that Beneficiary shall not be required to
release such Damage Proceeds (and may apply such Damage Proceeds
to the Secured Obligations as set forth above) to the extent that
such Damage Proceeds relate to any condemnation, seizure or other
appropriation by any Governmental Agency of all or any portion of
the Real Property (including Damage Proceeds payable in lieu of
any such action), or if Beneficiary has reasonably determined
that the security of this Deed of Trust has been impaired, or
will be impaired upon release of Damage Proceeds to Trustor.
4 Liens and Taxes. (i) Trustor shall pay, prior to
delinquency, all Taxes which are or may become a Lien affecting
any part of the Trust Estate (including assessments on
appurtenant water stock) and (ii) Trustor shall pay and perform
when due all other obligations secured by or constituting a Lien
affecting any part of the Trust Estate.
5 Actions. Trustor shall appear in and defend any claim
or any action or other proceeding purporting to affect title or
other interests relating to any part of the Trust Estate, the
security of this Deed of Trust or the rights or powers of
Beneficiary or Trustee, and give Beneficiary prompt written
notice of any such claim, action or proceeding. Beneficiary and
Trustee may, at the expense of Trustor, appear in and defend any
such claim, action or proceeding and any claim, action or other
proceeding asserted or brought against Beneficiary or Trustee in
connection with or relating to any part of the Trust Estate or
this Deed of Trust.
6 Action By Beneficiary or Trustee. If Trustor fails to
perform any of its obligations under this Deed of Trust,
Beneficiary or Trustee may, but without any obligation to do so
and without notice to or demand upon Trustor and without
releasing Trustor from any obligations under this Deed of Trust,
and at the expense of Trustor: (i) perform such obligations in
such manner and to such extent and make such payments and take
such other action as either may deem necessary in order to
protect the security of this Deed of Trust, Beneficiary or
Trustee being authorized to enter upon the Real Property for such
purposes, (ii) appear in and defend any claim or any action or
other proceeding purporting to affect title or other interests
relating to any part of the Trust Estate, the security of this
Deed of Trust or the rights or powers of Beneficiary of Trustee,
and (iii) pay, purchase, contest or compromise any Lien or Right
of Others which in the reasonable judgment of either is or
appears to be or may for any reason become prior or superior to
this Deed of Trust. If Beneficiary or Trustee shall elect to pay
any such Lien or Right of Others or any Taxes which are or may
become a Lien affecting any part of the Trust Estate or make any
other payments to protect the security of this Deed of Trust,
Beneficiary or Trustee may do so without inquiring into the
validity or enforceability of any apparent or threatened Lien,
Right of Others or Taxes, and may pay any such Taxes in reliance
on information from the appropriate taxing authority or public
office without further inquiry.
7 Obligations With Respect to Trust Estate. Neither
Beneficiary nor Trustee shall be under any obligation to
preserve, maintain or protect the Trust Estate or any of
Trustor's rights or interests in the Trust Estate, or make or
give any presentments, demands for performance, protests, notices
of nonperformance, protest or dishonor or other notices of any
kind in connection with any Rights, or take any other action with
respect to any other matters relating to the Trust Estate.
Beneficiary and Trustee do not assume and shall have no liability
for, and shall not be obligated to perform, any of Trustor's
obligations with respect to any Rights or any other matters
relating to the Trust Estate, and nothing contained in this Deed
of Trust shall release Trustor from any such obligations.
8 Assignment of Rents. Trustor irrevocably grants,
transfers and assigns to Beneficiary, during the continuance of
this Deed of Trust, all of Trustor's right, title and interest in
and to the Rents. Notwithstanding such assignment, so long as no
Event of Default has occurred and is continuing, Trustor shall
have the right to collect, receive, hold and dispose of the Rents
as the same become due and payable, provided that unless
Beneficiary otherwise consents in writing: (i) any such Rents
paid more than 30 days in advance of the date when due shall be
delivered to Beneficiary and held by Beneficiary in a cash
collateral account (over which Beneficiary shall have sole and
executive control and right of withdrawal), to be released and
applied on the date when due (or, if an Event of Default has
occurred and is continuing, at such other time or times and in
such manner as Beneficiary may determine), and (ii) if an Event
of Default has occurred and is continuing, Trustor's right to
collect and receive the Rents shall cease and Beneficiary shall
have the sole right, with or without taking possession of the
Real Property, to collect all Rents, including those past due and
unpaid. Any such collection of Rents by Beneficiary shall not
cure or waive any Event of Default or notice of default or
invalidate any act done pursuant to such notice. Failure or
discontinuance of Beneficiary at any time, or from time to time,
to collect the Rents shall not in any manner affect the
subsequent enforcement by Beneficiary of the right to collect the
same. Nothing contained in this Deed of Trust, nor the exercise
of the right by Beneficiary to collect the Rents, shall be deemed
to make Beneficiary a "mortgagee in possession" or shall be, or
be construed to be, an affirmation by Beneficiary of, or an
assumption of liability by Beneficiary under, or a subordination
of the Lien of this Deed of Trust to, any tenancy, lease or
option.
9 Default. Upon the occurrence of any Event of Default:
(i) Trustor shall be in default under this Deed of Trust, and all
Secured Obligations shall immediately become due and payable
without further notice to Trustor; (ii) upon demand by
Beneficiary, Trustor shall pay to Beneficiary, in addition to all
other payments specifically required under this Deed of Trust and
the Promissory Note, in monthly installments, at the times and in
the amounts required by Beneficiary from time to time, sums which
when cumulated will be sufficient to pay one month prior to the
time the same become delinquent, all Taxes which are or may
become a Lien affecting the Trust Estate and the premiums for any
policies of insurance to be obtained hereunder (all such payments
to be held in a cash collateral account over which Beneficiary
shall have sole and exclusive control and right of withdrawal);
and (iii) Beneficiary may, without notice to or demand upon
Trustor, which are expressly waived by Trustor (except for
notices or demands otherwise required by applicable Laws to the
extent not effectively waived by Trustor and any notices or
demands specified below), and without releasing Trustor from any
of its Obligations, exercise any one or more of the following
Remedies as Beneficiary may determine:
9.1 Beneficiary may, either directly or through an
agent or court-appointed receiver, and without regard to the
adequacy of any security for the Secured Obligations:
1. enter, take possession of, manage, operate, protect,
preserve and maintain, and exercise any other rights of an owner
of, the Trust Estate, and use any other properties or facilities
of Trustor relating to the Trust Estate, all without payment of
rent or other compensation to Trustor;
2. enter into such contracts and take such other action as
Beneficiary deems appropriate to complete all or any part of any
construction which may have commenced on the Land, subject to
such modifications and other changes in the plan of development
as Beneficiary may deem appropriate;
3. make, cancel, enforce or modify leases, obtain and
evict tenants, fix or modify rents and, in its own name or in the
name of Trustor, otherwise conduct any business of Trustor in
relation to the Trust Estate and deal with Trustor's creditors,
debtors, tenants, agents and employees and any other Persons
having any relationship with Trustor in relation to the Trust
Estate, and amend any contracts between them, in any manner
Beneficiary may determine;
4. either with or without taking possession of the Trust
Estate, notify obligors on any Rights that all payments and other
performance are to be made and rendered directly and exclusively
to Beneficiary, and in its own name supplement, modify, amend,
renew, extend, accelerate, accept partial payments or performance
on, make allowances and adjustments and issue credits with
respect to, give approvals, waivers and consents under, release,
settle, compromise, compound, sue for, collect or otherwise
liquidate, enforce or deal with any Rights, including collection
of amounts past due and unpaid (Trustor agreeing not to take any
such action after the occurrence of an Event of Default without
prior written authorization from Beneficiary);
5. endorse, in the name of Trustor, all checks, drafts and
other evidences of payment relating to the Trust Estate, and
receive, open and dispose of all mail addressed to Trustor and
notify the postal authorities to change the address for delivery
of such mail to such address as Beneficiary may designate; and
6. take such other action as Beneficiary deems appropriate
to protect the security of this Deed of Trust.
Beneficiary's agent or court-appointed receiver shall
hold all monies and proceeds, including, without limitation,
proceeds from the sale of the Real Property or any portion
thereof, for the benefit of the Trustor and shall not disburse
the monies or proceeds for the satisfaction of the Secured
Obligations without the prior written consent of Beneficiary.
The Beneficiary's agent or court-appointed receiver may, but
without any obligation to do so and without notice to or demand
upon Trustor and without releasing Trustor from any Obligations
under this Deed of Trust, and at the expense of Trustor, follow
the written instruction of Beneficiary under this Section 3.9.
9.2 Beneficiary may execute and deliver to Trustee
written declaration of default and demand for sale and written
notice of default and of election to cause all or any part of the
Trust Estate to be sold, which notice Trustee shall cause to be
filed for record; and after the lapse of such time as may then be
required by law following the recordation of such notice of
default, and notice of sale having been given as then required by
law, Trustee, without demand on Trustor, shall sell such property
at the time and place fixed by it in such notice of sale, either
as a whole or in separate parcels and in such order as
Beneficiary may direct (Trustor waiving any right to direct the
order of sale), at public auction to the highest bidder for cash
in lawful money of the United States (or cash equivalents
acceptable to Trustee to the extent permitted by applicable law),
payable at the time of sale. Trustee may postpone the sale of
all or any part of the Trust Estate by public announcement at
such time and place of sale, and from time to time after any such
postponement may postpone such sale by public announcement at the
time fixed by the preceding postponement. Trustee shall deliver
to the purchaser at such sale its deed conveying the property so
sold, but without any covenant or warranty, express or implied,
and the recitals in such deed of any matters or facts shall be
conclusive proof of the truthfulness thereof. Any person,
including Trustee or Beneficiary, may purchase at such sale, and
any bid by Beneficiary may be, in whole or in part, in the form
of cancellation of all or any part of the Secured Obligations.
Any such sale shall be free and clear of any interest of Trustor
and any lease, encumbrance or other matter affecting the property
so sold which is subject or subordinate to this Deed of Trust,
except that any such sale shall not result in the termination of
any such lease (i) if and to the extent otherwise provided in any
estoppel or other agreement executed by the tenant and
Beneficiary (or executed by the tenant in favor of, and accepted
by, Beneficiary), or (ii) if the purchaser at such sale gives
written notice to the tenant, within 30 days after date of sale,
that the lease will continue in effect.
9.3 Beneficiary may proceed to protect, exercise and
enforce any and all other Remedies provided under the Promissory
Note or by applicable Laws.
All proceeds of collection, sale or other liquidation
of the Trust Estate shall be applied first to all costs, fees,
expenses and other amounts (including interest) payable by
Trustor under Section 3.10 of this Deed of Trust and to all other
Secured Obligations not otherwise repaid in such order and manner
as Beneficiary may determine, and the remainder, if any, to the
person or persons legally entitled thereto.
Each of the Remedies provided in this Deed of Trust is
cumulative and not exclusive of, and shall not prejudice, any
other Remedy provided in this Deed of Trust or by applicable Laws
or under the Promissory Note. Each Remedy may be exercised from
time to time as often as deemed necessary by Trustee and
Beneficiary, and in such order and manner as Beneficiary may
determine. This Deed of Trust is independent of any other
security for the Secured Obligations, and upon the occurrence of
an Event of Default, Trustee or Beneficiary may proceed in the
enforcement of this Deed of Trust independently of any other
Remedy that Trustee or Beneficiary may at any time hold with
respect to the Trust Estate or the Secured Obligations or any
other security. Trustor, for itself and for any other person
claiming by or through Trustor, waives, to the fullest extent
permitted by applicable Laws, all rights to require a marshaling
of assets by Trustee or Beneficiary or to require Trustee or
Beneficiary to first resort to any particular portion of the
Trust Estate or any other security (whether such portion shall
have been retained or conveyed by Trustor) before resorting to
any other portion, and all rights of redemption, stay and
appraisal.
10 Costs, Fees and Expenses. Trustor shall pay, on
demand, all costs, fees, expenses, advances, charges, losses and
liabilities of Trustee and Beneficiary under or in connection
with this Deed of Trust or the enforcement of, or the exercise of
any Remedy or any other action taken by Trustee or Beneficiary
under, this Deed of Trust or the collection of the Secured
Obligations, in each case including (i) reconveyance and
foreclosure fees of Trustee, (ii) costs and expenses of
Beneficiary or Trustee or any receiver appointed under this Deed
of Trust in connection with the operation, maintenance,
management, protection, preservation, collection, sale or other
liquidation of the Trust Estate or foreclosure of this Deed of
Trust, (iii) advances made by Beneficiary to complete or
partially construct all or any part of any construction which may
have commenced on the Land or otherwise to protect the security
of this Deed of Trust, (iv) cost of evidence of title, and (v)
the reasonable fees and disbursements of Trustee's and
Beneficiary's legal counsel and other out-of-pocket expenses, and
the reasonable charges of Beneficiary's internal legal counsel;
together with interest on all such amounts until paid (1) at the
Alternate Rate in the case of any such interest payable to
Beneficiary, and (2) at the rate provided by law in the case of
any such interest payable to Trustee.
11 Action by Trustee. At any time and from time to time
upon written request of Beneficiary and presentation of this Deed
of Trust for endorsement, and without affecting the personal
liability of any Person for payment of the Secured Obligations or
the security of this Deed of Trust for the full amount of the
Secured Obligations on all property remaining subject to this
Deed of Trust, Trustee may, without notice and without liability
for such action, and notwithstanding the absence of any payment
on the Secured Obligations or any other consideration: (i)
reconvey all or any part of the Trust Estate, (ii) consent to the
making and recording, or either, of any map or plat of the Land,
(iii) join in granting any easement affecting the Land, or (iv)
join in or consent to any extension agreement or any agreement
subordinating the Lien of this Deed of Trust. Trustee is not
obligated to notify Trustor or Beneficiary of any pending sale
under any other deed of trust or of any action or other
proceeding in which Trustor, Beneficiary or Trustee is a party
unless brought by Trustee.
12 Reconveyance. Upon written request of Beneficiary and
surrender of this Deed of Trust to Trustee for cancellation or
endorsement, and upon payment of its fees and charges, Trustee
shall reconvey, without warranty, all or any part of the property
then subject to this Deed of Trust. Any reconveyance, whether
full or partial, may be made in terms to "the person or persons
legally entitled thereto," and the recitals in such reconveyance
of any matters or facts shall be conclusive proof of the
truthfulness thereof. Beneficiary shall not be required to cause
any property to be released from this Deed of Trust until final
payment and performance in full of all Secured Obligations and
termination of all obligations of Beneficiary under or in
connection with the Promissory Note and this Deed of Trust.
13 Substitution of Trustee. Beneficiary may from time to
time, by instrument in writing, substitute a successor or
successors to any Trustee named in or acting under this Deed of
Trust, which instrument, when executed by Beneficiary and duly
acknowledged and recorded in the office of the recorder of the
county or counties where the Land is situated, shall be
conclusive proof of proper substitution of such successor Trustee
or Trustees who shall, without conveyance from the predecessor
Trustee, succeed to all of its title, estate, rights, powers and
duties. Such instrument must contain the name of the original
Trustor, Trustee and Beneficiary, the book and page where this
Deed of Trust is recorded (or the date of recording and
instrument number) and the name and address of the new Trustee.
14 Attorney-in-Fact. Trustor appoints Beneficiary as
Trustor's attorney-in-fact, with full authority in the place of
Trustor and in the name of Trustor or Beneficiary, to take such
action and execute such Documents as Beneficiary may reasonably
deem necessary or advisable in connection with the exercise of
any Remedies or any other action taken by Beneficiary or Trustee
under this Deed of Trust.
15 Successors and Assigns. This Deed of Trust applies to
and shall be binding on and inure to the benefit of all parties
to this Deed of Trust and their respective successors and
assigns.
16 Acceptance. Notice of acceptance of this Deed of Trust
by Beneficiary or Trustee is waived by Trustor. Trustee accepts
this Deed of Trust when this Deed of Trust, duly executed and
acknowledged, is made a public record as provided by law.
17 Beneficiary's Statements. For any statement regarding
the Secured Obligations, Beneficiary may charge the maximum
amount permitted by law at the time of the request for such
statement.
18 Rules of Construction. For purposes of this Deed of
Trust: (i) any reference to "days" or "months" shall mean
calendar days or months, (ii) the word "including" shall mean
"including without limitation", (iii) any reference to the
Promissory Note or other Document or exhibit shall mean the
Promissory Note or Document or exhibit as it may from time to
time be supplemented, modified, amended and extended in
accordance with the terms hereof or thereof, (iv) defined terms
shall be equally applicable to the singular and plural forms, and
(v) all existing and future exhibits to this Deed of Trust are
incorporated herein by this reference. The provisions of this
Deed of Trust are declared to be severable.
19 Governing Law. This Deed of Trust shall be governed
by, and construed and enforced in accordance with, the Laws of
California.
20 Request for Notice. Trustor requests that a copy of
any notice of default and a copy of any notice of sale be mailed
to Trustor at Trustor's address set forth above.
4. Due on Sale/Due on Encumbrance. Should all or any
portion of the Real Property, or any interest therein, be sold,
alienated or conveyed, Beneficiary may declare the entire balance
of the Secured Obligations fully due and payable. This
acceleration provision shall apply to the conveyance or
alienation of any interest in the Real Property whatsoever,
whether equitable or legal, recorded or unrecorded, and shall
include, without limitation, an "outright sale," a land sale
contract, a lease with a term of more than three (3) years, a
lease with option to purchase and conveyances in trust.
Trustor shall not create or permit to continue in
existence any other (subordinate) mortgage, deed of trust,
pledge, security interest, lien or charge of any kind (including
purchase money and conditional sale liens), or other encumbrance
upon any of the Real Property, except for the lien of taxes and
assessments not yet delinquent. Any transaction in violation of
this paragraph shall cause all or indebtedness secured by this
Deed of Trust, at the option of the Beneficiary hereof and
without demand or notice, to become immediately due and payable.
"TRUSTOR":
/s/ Joseph Schoepp
JOSEPH SCHOEPP
/s/ Juliann Schoepp
JULIANN SCHOEPP
/s/ William Schoepp
WILLIAM SCHOEPP
/s/ Evelyn Schoepp
EVELYN SCHOEPP
EXHIBIT "A"
LEGAL DESCRIPTION OF LAND
That certain real property located in the City of
Moreno Valley, Riverside County, California, described as
follows:
Parcel 1 of Parcel Map No. 20964 in the City of Moreno Valley, C
ounty of Riverside, State of California, as per Map Recorded in
Book 137, Pages 30 through 31 of Parcel Maps, in the
office of the County Recorder of said County.
EXHIBIT "B"
DEFINITIONS
As used in this Deed of Trust, the following terms shall
have the following meanings:
"Alternate Rate" means Ten percent (10%) per annum.
"Authorization" means any authorization, consent, approval,
order, license, permit, exemption or other action by or from, or
any filing, registration or qualification with, any Governmental
Agency or other Person.
"Collateral" means all property in which Beneficiary is
granted or purportedly granted a Lien pursuant to this Deed of
Trust.
"Documents" means written documents and materials, including
agreements, approvals, certificates, consents, instruments,
financing statements, reports, budgets, forecasts and opinions.
"Event of Default" means the occurrence of any one or more
of the following events:
1. the failure of Trustor to perform or observe any
term, covenant or agreement contained in this Deed of Trust; or
2. all or a substantial or material portion of the
Collateral is damaged or destroyed by fire or other casualty and
Beneficiary has reasonably determined that the security of this
Deed of Trust has been impaired or that the repair, restoration
or replacement of the Collateral in accordance with the
requirements hereof is not economically practicable; or all or a
substantial or material portion of the Collateral is condemned,
seized or appropriated by any Governmental Agency or subject to
any action or other proceeding instituted by any Governmental
Agency for any such purpose; or
3. the occurrence of any "Event of Default" as
defined in the Promissory Note; or
4. should Trustor agree to or actually sell, convey,
transfer, or dispose of the Real Property described in this Deed
of Trust, or any part of it, or any interest in it, to any person
or entity, without first obtaining the written consent of
Beneficiary, which may be withheld in Beneficiary's sole and
absolute discretion, then all obligations secured by this Deed of
Trust may be declared due and payable, at the option of the
Beneficiary, its successors and assigns. Consent to one
transaction of this type will not constitute a waiver of the
right to require consent to future or successive transactions.
"Governmental Agency" means (i) any government or
municipality or political subdivision of any government or
municipality, (ii) any assessment, improvement, community
facilities or other special taxing district, (iii) any
governmental or quasi-governmental agency, authority, board,
bureau, commission, corporation, department, instrumentality or
public body, (iv) any court, administrative tribunal, arbitrator,
public utility or regulatory body, or (v) any central bank or
comparable authority.
"Laws" means all federal, state and local laws, rules,
regulations, ordinances and codes.
"Lien" means any lien, mortgage, deed of trust, pledge,
security interest or other charge or encumbrance.
"Obligations" means all obligations of the Trustor of every
nature under this Deed of Trust and/or the Promissory Note.
"Other Requirements" means (i) the terms, conditions and
requirements of all Authorizations and Rights of Others relating
to the Collateral and all other Documents, agreements and
restrictions relating to, binding on or affecting the Collateral,
including covenants, conditions and restrictions, leases,
easements, reservations, rights and rights-of-way, (ii)
requirements relating to the lease of any portion of the Real
Property by the Borrower or the supply of utility services to the
Real Property, (iii) requirements and recommendations of the
soils report and any environmental impact report or negative
declaration, (iv) all building, zoning, land use, planning and
subdivision requirements, and (v) requirements relating to
construction of any off-site improvements.
"Person" means any person or entity, whether an individual,
trustee, corporation, partnership, joint stock company, trust,
unincorporated organization, bank, business association or firm,
joint venture, governmental Agency or otherwise.
"Promissory Note" means that certain Promissory Note of even
date herewith which is secured by this Deed of Trust.
"Remedy" means any right, power or remedy.
"Right of Others" means, as to any property in which a
Person has an interest, any legal or equitable claim or other
interest (other than a Lien but including a leasehold interest, a
right of first refusal or a right of repossession or removal) in
or with respect to such property held by any other Person, and
any option or right held by any other Person to acquire any such
claim or other interest or any Lien in or with respect to such
property.
"Taxes" means all taxes, assessments, charges, fees and
levies (including interest and penalties) imposed, assessed or
collected by any Governmental Agency.
ACKNOWLEDGMENTS
CAPACITY CLAIMED BY SIGNER:
Individual(s)
Corporate
Officer(s)
Partner(s)
Attorney-in-Fact
Trustee(s)
Subscribing Witness
Guardian/Conservator
Other
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
STATE OF CALIFORNIA }
}
COUNTY OF SAN FRANCISCO }
On January 20, 1997, before me, the
undersigned notary public, personally appeared
Joseph Schoepp, personally known to me OR proved
to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Christian Fernandez
Signature of Notary [notary seal]
CAPACITY CLAIMED BY SIGNER:
[x] Individual(s)
Corporate
Officer(s)
Partner(s)
Attorney-in-Fact
Trustee(s)
Subscribing Witness
Guardian/Conservator
Other
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
STATE OF CALIFORNIA }
}
COUNTY OF SAN FRANCISCO }
On January 20, 1997, before me, the
undersigned notary public, personally appeared
Jullianne S. Schoepp, personally known to me OR proved
to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Christian Fernandez
Signature of Notary [notary seal]
ACKNOWLEDGMENTS
CAPACITY CLAIMED BY SIGNER:
Individual(s)
Corporate
Officer(s)
Partner(s)
Attorney-in-Fact
Trustee(s)
Subscribing Witness
Guardian/Conservator
Other
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
STATE OF CALIFORNIA }
}
COUNTY OF MARIN }
On Jan 20, 1997, before me, the
undersigned notary public, personally appeared
William Schoepp , personally known to me OR proved
to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Alfred Mammini
Signature of Notary [notary seal]
CAPACITY CLAIMED BY SIGNER:
Individual(s)
Corporate
Officer(s)
Partner(s)
Attorney-in-Fact
Trustee(s)
Subscribing Witness
Guardian/Conservator
Other
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
STATE OF CALIFORNIA }
}
COUNTY OF MARIN }
On Jan 20th, 1997, before me, the
undersigned notary public, personally appeared
Evelyn Schoepp, personally known to me OR proved
to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Alfred Mammini
Signature of Notary [notary seal]
