Preview
E
12/22/16
G. Andrew Slater #238126 FRESNO COUNTY SUPERIOR COURT
DOWLING AARON INCORPORATED By: K. Garrett, Deputy
8080 North Palm Avenue, Third Floor
P.O. Box 28902
Fresno, California 93729-8902
Tel: (559) 432-4500
Fax: (559) 432-4590
aslater@dowlingaaron.com
Attorneys for Defendants
CITY NATIONAL BANK
SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO
CENTRAL DIVISION
10
11 SURJIT BAGGA. Case No. 16CECG03336
12 Plaintiff, DEFENDANT CITY NATIONAL BANK'S
REQUEST FOR JUDICIAL NOTICE IN
13 Vv. SUPPORT ITS DEMURRER TO
PLAINTIFF’S COMPLAINT
14 CITY NATIONAL BANK; and DOES 1-100.
INCLUSIVE. Date: February7, 2017
15 Time: 3:30 p.m.
Defendant Dept: 402
16 Judge: Hon. Jeffrey Hamilton
17
18 Pursuant to Evidence Code §§ 451 and 452, PLEASE TAKE NOTICE that
19 Defendant City National Bank (hereinafter, "CNB") submits the following Request for Judicial
20 Notice in support its Memorandum of Points and Authorities in support of its Demurrer to
21 plaintiff's complaint, filed concurrently herewith.
22 LEGAL AUTHORITY FOR JUDICIAL NOTICE
23 The purpose of judicial notice is to expedite the production and introduction of
24 otherwise admissible evidence. (Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 578.)
25 Judicial notice permits a court to consider as established in a case as a matter of law or fact that
26 is relevant to an issue without the necessity of formal proof by any party. (Post v. Prati (1979)
27 90 Cal.App.3d 626, 633.) Thus, judicial notice is a substitute for formal proof, the fundamental
28 theory being that matter judicially noticed cannot reasonably be disputed. (Id.)
bow! AARON
DEFENDANT CITY NATIONAL BANK'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT ITS
IURRER TO P! INTIFF’S COMPLA’
The documents attached hereto as Exhibits A through U are documents
previously filed with the court, or are facts not reasonably subject to dispute and capable of
immediate and accurate determination by resort to sources of reasonably indisputable accuracy,
and/or were recorded into the public record with the applicable Recorder’s Office in the county
prescribed. This Court may take judicial notice of the recorded documents. (Poseidon
Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1116-1117.)
Information Item No. 1 is a matter subject to immediate and accurate verification and/or
commonly or universally known. (Evidence Code §§ 451 and 452.)
CNB respectfully requests the Court take judicial notice of the following
10 information and documents attached hereto:
ll Documents:
12 Exhibit A — A true and correct copy of the Promissory Note between CNB’s
13 predecessor-in-interest, Imperial Capital Bank (“Imperial”) and plaintiff, which contains an
14 endorsement by the Federal Deposit Insurance Corporation (“FDIC”) to CNB.
15 Exhibit B — A true and correct copy of the Deed of Trust in favor of Imperial
16 recorded in the Recorder’s Office of Fresno County on December 31, 2008, as Document No.
17 2008-0177551.
18 Exhibit C - A true and correct copy of the Assignment of Leases in favor of
19 Imperial Capital Bank recorded in the Recorder’s Office of Fresno County on December 31,
20 2008, as Document No. 2008-0177552.
21 Exhibit D — A true and correct copy of the Assignment of Deed of Trust from
22 the FDIC (as receiver for Imperial) to CNB recorded in the Recorder’s Office of Fresno County
23 on June 20, 2011, as Document No. 2011-0081778.
24 Exhibit E - A true and correct copy of the Notice of Public Nuisance or Housing
25 Violation Abatement Action recorded in the Recorder’s Office of Fresno County on July 20,
26 2010, as Document No. 2010-0092316.
27 Exhibit F - A true and correct copy of the Notice of Special Assessment
28 recorded in the Recorder’s Office of Fresno County on January 26, 2011, as Document No.
Dow!
DEFENDANT CITY NATIONAL BANK'S R) UEST FOR JUDICIAL NOTICE IN SUPPORT ITS
DEMURRER TO PLAINTIFF'S COMPLAINT
2011-0013009.
Exhibit G - A true and correct copy of the Notice of Special Assessment
recorded in the Recorder’s Office of Fresno County on May 26, 2011, as Document No. 2011-
0071492.
Exhibit H - A true and correct copy of the Notice of State Tax Lien recorded in
the Recorder’s Office of Fresno County on September 23, 2011, as Document No. 2011-
0127892.
Exhibit I - A true and correct copy of the Mechanic’s Lien recorded in the
Recorder’s Office of Fresno County on January 9, 2013, as Document No. 2013-0003517.
10 Exhibit J - A true and correct copy of the Notice of Special Assessment recorded
ll in the Recorder’s Office of Fresno County on May 7, 2013, as Document No. 2013-0066002.
12 Exhibit K - A true and correct copy of the Abstract of Judgment recorded in the
13 Recorder’s Office of Fresno County on February 11, 2014, as Document No. 2014-0018039.
14 Exhibit L - A true and correct copy of the Notice of Special Assessment
15 recorded in the Recorder’s Office of Fresno County on October 30, 2014, as Document No.
16 2014-0123991.
17 Exhibit M - A true and correct copy of the Notice of Lien (Judgment) recorded
18 in the Recorder’s Office of Fresno County on October 30, 2014, as Document No. 2014-
19 0123992.
20 Exhibit N — A true and correct copy of the Notice of Default recorded in the
21 Recorder’s Office of Fresno County on June 18, 2014, as Document No. 2014-0067700.
22 Exhibit O — A true and correct copy of the Substitution of Trustee recorded in
23 the Recorder’s Office of Fresno County on June 18, 2014, as Document No. 2014-0067699.
24 Exhibit P - A true and correct copy of the First Report of Receiver filed in
25 Fresno County Superior Court Case No. 14CECG02523 on or about November 3, 2014.
26 Exhibit Q - A true and correct copy of the Second and Final Report of Receiver
27 filed in Fresno County Superior Court Case No. 14CECG02523 on or about December 29,
28 2014.
Dow ARON
Sh DEFENDANT CITY NATIONAL BANK'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT ITS
JEMURRER TO PL. INTIFF’S COMPLAINT
Exhibit R — A true and correct copy of the Notice of Trustee Sale recorded in the
Recorder’s Office of Fresno County on September 25, 2014, as Document No. 2014-0106296.
Exhibit S — A true and correct copy of the Trustee’s Deed Upon Sale recorded in
the Recorder’s Office of Fresno County on November 21, 2014, as Document No. 2014-
0132086.
Exhibit T — True and correct copies of the applicable Limited Powers of
Attorney recorded in the Recorder’s Office of Orange County on December 22, 2009
(Document No. 2009000684877), December 3, 2010 (Document No, 2010000651649),
November 10, 2011 (Document No. 2011000574161), and November 12, 2012 (Document No.
10 201200305266), respectively.
ll Exhibit U — A true and correct copy of plaintiffs complaint.
12 Information:
13 1 A copy of the Purchase and Assumption agreement between CNB and
14 the can be found on the FDIC website at:
15 https://www. fdic.gov/bank/individual/failed/imperialcapital_P_and_A.pdf.
16
Dated: December r¢ , 2016 DOWLING AARO) TED
1
18
By
19 drew Slater
ttorney for Defendant
20 CITY NATIONAL BANK
21
22 014939-000004\02084201.DOCX.
23
24
25
26
27
28
DOWLING|AARON
7 DEFENDANT CITY NATIONAL BANK'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT ITS
EMURRER TO PL. INTIFF’S COMPLAINT
Exhibit A
a
Wh AERA
PROMISSORY NOTE SECURED BY DEED OF TRUST
(Fixed Rafe - Adjustable (Amortizinn} / Non-Receurss)
$1,350,000.00 Los Angeles, California December 22, 2008
NOTICE TO BORROWER: THIS NOTE CONTAINS PROVISIONS FOR A VARIABLE INTEREST RATE.
AND FOR VARIABLE PAYMENT AMOUNTS.
- -
4: Pay. In Instatiments and et the tines stated In this Note, for value received,
SURJIT BAGGA ( to pay to IMPERIAL CAPITAL BANK ("Hokier’), or order, at 600
N, Bradd Bd, Suite soe
4 Genaete, California 94: of at such other place as the Holder may from
time to time designate in writing, the princips!
surh of Millon Three Hundred Tlrousend and
O/100 ($360,009.00),
of so much thereof as may be disbursed the Holder, with Interest from the date
of Initial disbursement of all or any gart of the principal of this Nc (the “Disbursement Date") on unpaid
principal at the Interest rate or interest rates provided for in this Note.
nigrest Rat Payment of Princi nteres
2. Certain Detinitions. For purposes of this Note, the followirig terms shall have
the following definitions:
(a) “Note Rate” means the per annum Interest rate on the principal sum of
this Note which Is outstanding from time to time.
“Fixed Raié" meafis a per annum interest rate equal to Six and Ninety
Five One Hundredths Percent (6.95%) pet annum.
(e) "Fixed Rate Term” means the period commencing on the Disbursement
Daté and continuing fera term expiring Sixty (60) months after the first (1*) day of the first (1°) month
following the Disbursement Date (of If the. Disbursement Date occurs on the first (1*) day of @ month,
continuing for a term expiring Sixty (66) moriths after the Disbursement Date) during which interest at the
Fixed Rate shall accrue on the outstanding principal balance of this. Note.
(d) “Index” means the six (6) month London Interbank Offered Rate
{LIBOR) as published In the Wall Street Journal.
“Currel Index* means, with respect to each Interest Change Date, the
most recent Index figure availdble as of the tenth (40th) day prior to such Interest Change Date.
“Interest Change Date” means January 1, 2044 and each July tst, and
January ‘st thereafter to and including July 1, 2078.
REV. DA
PROM, NOTE - FIXED RATEVADJ. (AMORTIZING) MAKER'S INITIALS: fo
B
e @
* Date” means February 1, 2014 and each August ‘tet,
and February tst thereafter to and Including August 1, 2078.
“amortization Period’ means a period of three hundred sixty (360)
months.commencing on January 1, 2009.
6) “Remaining Amortization Perfod® means, with respect to each’ Payment
Change Date, the number of months remaining in the Amortization Pesiod as of the Interest Change Date
iromediately preceding such Payment Change Date.
“instalment Date” means February 1, 2009 and the first (1st)
day of each month thereafter to.and lachiding December 1, 2018.
“Manthly Payment” meuns the total amourif of the monthly instalment,
payment of principal and interact dure annd payable under fils Note on an InstaftnentPayyrtent Date,
“Loan Year" means the period from the Disbursemerit Date t the first
(to day ofthe eat th Jeridar month afterthe month In Which the Disbursement
Date occurs together
with the consecutive twelve (12) calendar month pertod following such first (tf) day, and (Il) each
consetutive Wwaive (42) calendar month period commencing on the anniverssry of auch first
(st) day.
22 Interest. Thé Note Rate shall be computed as follows:
From thé Disbursement Dete to the first
Interest Change Date after theEre Rate alert Peed the Note Rate. shall be equal to the Fixed
Rate.
nierest Rat interest ro Subject ONLY to
3(a)
the lifetime maximum Interest rate Uh
interest Change Date, the Note Rate shall te
it mt
calto te
te referred to && the “Initlal Adjustable interest Rate“):
effective
as of the first
of the following rates (such greater rate
8 rate equal to the niost recent Index figure
published dnd avallabie 4¢ of the first Kiterest ‘Three and Twenty One Huridtédths
fitage poltts per annum {the* ). Founded upward to the nearest one-thousandt
a ‘ooo ofeme pertentage
point (0.004 OR (il) the Fixed
Rate.
‘Subject to the limitations contained in
Section 2.3(b) below, theTotter ST irons Oo taereaes he Note Rate In aovordance with this Section
2.2{¢) commencing with the second Interest Date. The new Note Rata which becomes effective
ed
‘Date shal be eqgal fo the Current index
on each such Interest Chat ible to the Interest Change
Date ia the Spread rauri upward to the nearest one-thousandths (1/1,000) of one parentage polnt
(0,004%).
23
tafion io nterest Rat d Hustmer t on
Date. Notwithstanding anything ‘0 the cont ry contained In 2.2(0) y sbove, as
otherwise provided in Section 4 below, no change to the Note Rate shall be made on the first Interest
Change Date to the extent that such change would result in an increase in the Note Rate above a rate
that {s equal to Five (5) percentage points over the Fixed Rate.
Rat Act pnts on 5 econ
b) nd A
Sul mt ia B Section toined Fi
2.2{¢) above, sid except as otherwise provided in Section 4 below, no changefo the Note Rate shail be
made on the second and on any subsequent Interest Change Dates to the extent that such change {1)
MAKER'S INITIALS: i.
B j i i
e e
‘woutd result in an increase in the Note Rate above a rate that Is equal to Five (6) percentage. points
over tha Fixed Rate; or (ji). would result in an Increase in the Note Rate of more than ane percent (1.00%)
over tha Note Rate that became effective on the immediately preceding Interest Charige Date; or (ill)
would result in a decrease In the Note Rate to a tate which Is jess than the Fxed Rate.
24 Payments. Principal and interest shall be due and payable as follows:
A single installment payment of Interest only
for the period from theDisbursement Date fo the first (1st) day of the firet (1st} calendar month following
the month in which the Disbursement Date occurs shall be due and payable on the Disbursement Date,
(b) ape ment PPrin
ri nel nts Burina Fix
DO and
4, 200 on the firet (1 of each
thereafter to and including the firs! t (1) day of the month Immediately preceding ‘the first Payment
Change. Date, principal and stall be due end payesle In an aniount sufficient ta repay the
hos of this Nott over the c Periad, together with initergst thereon, In égiral
morithly installments at the Fixed Rate,
no Principal interest During diustabl
intrest Petiod. Princ | and be dua and on the
ge Date and on each Instaliment Pay ae Oe ake bien The H joider shall Increase or
decrsasé the Monthly Payment In accordance with this Section 2.4{c) affective oni each Payment Change
Date, The Monthly Payment which shall be due on each Payment Change
Date ard on each Installment Payment Date thereafter until the next Payinent C! 19 Date shalt be
equal te the amount of the monthly payment that would be fo
sufficient repay the principal balanes of tis
Note outstanding immediately pracading tha Payment Change Data aver the Remaining Arto:
Pariad, together with interest thereon, installments
at the Note Rate in effect on the
Interest Change Date Immedktely preceding the Payment Change Date.
The entire unpaid principal balance of this
Note and ail accrued and enpatd Interest thereon shall be due- and payable on January 4, 2679.
Nobwithstanding anytting bo the contrary contained in this Nots
(Including any ee Se hte toamortized payments of the cal culation of monthly pritclial and
paymel nis over the Amortization
Period of Rer Partod), Interest at the rates
providedfor in this Note shall be computed on the basis of a three hundisd sixty (360) day year for the
aetuat number of days during wulch the principal balance of this Note is outstaiding. Maker
and agrees that the cafculation of interest on the basis described In the preceiing
in the socrual and payment of interest in amounts greater than tose which woak!
may result bet
payable: Finterest were calcullated on the basis of a thres hu sixty-five (865) day’ year. Alt payments
under thig Note shall be made In immediately avaiable funds. and shall be cradi ted Arst acorued
interest then due and thereafter to unpaid principal and then Impound charges and other charges, fees,
costs and expenses payable’by Maker urider this Note of if corinection with the joan evidenced this
Note (the *Loan*) Ia such order as the Holder may determine In its sole and absolute disoretion. If eny
paymen Is not made when due, et the option of the Holder of this Note, such interest payment
of Intaést t
shall bear interest at the same rate as from and after the due date of the Interest payment.
Principal and ihtarest shati be payable only in lawful money of the United States of Ametiva.
From and éfter elther (a) the occurrence of an
Event
of Defaut ierstrotor rat the Holder hes elected fo accelerate unpaid principal and Interest under
this Note as a resuif of such Event of Default); or (b) the maturity of thls Note (wtiether the stated maturity
date of this Note or the maturity date resulting from the Holder's acceleration of unpaid principal and
interest), then iti either of such circumstances, interest on the unpaid principal balance of this Note shall
acctue at a rate equal to the greater of (I) eighteen percent (18%} per annum; or (ii) five percent (5%) per
annum above the otherwise applicable rate of interest under Section: 2.2 above.
AaB
MAKER'S INITIALS! Jf
e @
te 8. any installment of Intersst, principal, or both principal and interest under
{tls Note- Isten (10) days after the date on whictrit la due, Maker shall Immediate
not paid within lya
pay
late charge equal to ten percant 0%) of such Installinent to the Holder to compensate the Holder for
administrative costs and expenses Incurred in with such late payment Maker agrees that the
actual dame suffered by the Holder deoause of any. late instalment payment sre extremely difficult
and impracticable to ascertain, and. the late charge dasérited In this Section represents a reasonable
attemptto fix such under the croumstances existing at the time this Nofe is executed. The
Holders acceptance of any late charge shall not consttute-a Waiver ef any of the tens of Itits Nols and
shall not affect the Holder's right to enforce any of its rights and remedies egalnet any Person liable for
payment Note,
a Maker and all sureties, guarantors, endorsers and other Persons liable for
payment of this Nofe (a) walve presentment, demand for notice of damand, dishonor,
protest and nenpayment, and all other notices and demandsin connection will the delivery, aecaptance,
jerformance, default unter, 2nd enfoofrcem ent
this Note; (b) waive the right to assert any stitute of
ie
Emitations vs-a défense tothe Yeerient of this Note-to the
fullest extent permitted by faw, (a) consent
10 elt extensions and renewals of thie time of payment of this Note and fo all modifications of thie Note by
the Holder and Maker without notice to and without in ehy way effecting tte (lability of any Person for
payment af this Nota; (¢) consent to any fo mearance ty the Holder and to the telease, addition, ant
substtution of any Paisdn lable for payment {oF this Néte eid of any or all of the’ seourity’ for this Note
Sore
without natice to and without in any way affacting the liability of arly Person for tof this Note; atid
of them ty the courts of the atta in which the Propary is
al fut y
risdiction over ‘each
proc
i jection withiiny adtion arislhg Under this Nota and tt'service GF
fais of the state In which'the Property Is located. Without linniting the ge neralty of tha
2raceding sentence, (i) any notios which the Holder ray siect to. give regarding arlyfo a5justrnent in thie
a “Note Rate
Note Rate made pursuan t terms of this Note (any such
to the
Aahjustnent) {incfuding any such noties contained in
er
of any Note
statement issued by the Holder) shall not
ft; and the Holder's
be construed as Hokl nobfy Mak
to er
failure to give,
or dafay in. giving, int to Maker shall not in arty way inipailr
of affectthe, validity or enforcoabityof such Note Adjustment or Meker’s
fo euch Noté Rate Adjustment urider the terms of this Note.
obligation to pay
interest purauant
te The Holder, at ifs nption ant without notioa to or dernand on Maker or arty other
Person, may terminate any of all obligations witich it may have te extend further credit to Maker and may
declare the entire unpaid principalbalance of this Note and ali scorued intdrest thereon to be Immediately
due and payable upon the occurrence of any Event of Default
eo ate Upon the occiitence of any Event of
Sanieeter ot an
Default, the Hoi der, ‘af its option, fa) shail have the ight to apply af payments made undsr this Note to
fees, costs and expenses by Maker
impound charges, ‘and other
under this Rote of in connection with the Loan In such order and amounts ds the Holler may determine fy
and
its Sole and alsolute discre (b} stall have the right to declare Maker to be int default under any or
tion;
Maker In favor of the Holder,
ofnts
all other extstirig or future notes, obligations or agieeme
Tra ». Reference Is made to the deed of trust securing
thisNote the “Dead ohinet) ‘and the other documents executed by Maker in connection with the Lean
for additionat rights of the Holder to atcelerate the Unpaid principal balanos and accrued Interest under
this Note, The Deed of Trust provides, In part, 2s follows:
“Beneficiary shall have the right, at fts option and withaut notice to or demand on Trustor, to declare any
of all Cibligsitions fo be Wy due and payable # any of the faflowing. 61 occurs without
Benefistary'’s prior written consent (8) the sale, , hiorgage, encumbrance, lease or
alienation of all or any part of the Property or sny intérast ih the Property, whether voluntary or
Involuntary, or Trustor’s grant of any option or agreement to effect any such tainsaction; (b) iF Trustor o
any General Partner or Manager ‘Trustzt fs 4 partnership, the admissidn, withdrawal, retirement or
removal of any Genera! Partner of Trustor or any of ‘Trustor's Genétal: Partners of Managers, or the sale
SURS! T Bil Cop
IMAKER’S INITIALS: J. 4 f
4B
e @
of transfer of more than twenty-five percent (25%) of the beneficial interests in Trustor or any of Trustor’s
General Partners or Managers; (¢) If Trustor or any General Partner or Manager of Trustor is a
corporation, tfie sale or transfer of an aggregate of more than twenty-five percent (25%) of any class of
stock in such corporation or the Issuance by such of additional stock te any Person who Is not
a shareholder in such corporation as of the date of this Deed of Trust (d) if Trustor or any Generel
Partnar or Manager of Trustor Is a limited liability campany, the appointment, withdrawal, retirement or
femibval. of any Ménager of Trustor or of Fruster's General Partners or Managers or the sate or
transfer of more than twenty-five percent (25%) of the beneficial interests In Trustor or any of Trustor’s
Genera? Parthers or Managers; (e) i Trustor or any of Trustors General Partners or Managers fs &
corporation, partnership, dr limited lisbility company, the dissatution or lquidetion of Trustor or any of
Trustor’s General Partiers or Managers; or (f, any change in: the character or use of afl of part of the
fs Including drilling
for or the extraction of olf, gas or any other hydrotarbon substance or ths lease
of al or any pert of the Property for any such purpoag, Without limiting the geneity of any provision of
this Ded of Trust (Including Seotion 6.8 consent fo any or ali of the events
described in this Seotion
may
? be withheld by in is-sole and absotufe discretion. Benefidary's
consent to any event described in this Seetion bhell not: deemed to bp a.consent to, or a walver of the
right to require such consent for, any other event. Far purposes of this Section, {f) the term ' rehip’
indludes a general partnership, liniited , limited Rability partnership, and Joint venture; and, (i)
the tamny ‘Maitager means anyPerson who ig acting as @ manager of a kinited Rabifity company, including
any meniber who is actirig in such capacity.”
10. No im No
modification or of any this Note shail be va or bi ‘on the
Holder unless such modification or waiver is in writing and sigried by the Holder. Without [ln thie
generality of the preceding sentance, no delay, omission or forbearance by the Holder In exercising or
remetioe, The Holder's rights and remedies under
f its rights and remadiee under this Nofa shatl constitute a walver of such rights or
other fagal and equitable rights and
this Nols are cumvistive with and in edition to all
which the Holder may heve in connection with tha Loait.
The headings to sections of this Note are for convenient referetice only and shall not be used
in
Interpretirig is Mote, If this Note is fost, atolen, or destroyed, upon Maker's recelpt of 8 reasonably
ry indemnification jeret by the Holder, or #f this: Note is mutilated, opon the
Holder's. surrender of the mutilated Note ts Maker, exepute and deliver to the Holler a now
promissory nesteWhich Is Identical In form and content to this Note to replace the lost, stolen, dest or
Ad terms with an Initial letter are used but not specifically defined in this
Note shall have the paspective rheanings given to such terms in the Deed of Trust. Time ts of
esseticd in the pérforinancs of each provision of this Note by Maker.
. Atromexe- Fees. ff Maker defaults under any of the terme of this Note, Maker shall pay
all Oésts ard expanses, ieludi g without limitation altomeys’ fees and coats, Incurred by the Holder in
enforcing this Note tri jediate
commented the Holder. wit pon the Holder's damend, whether or not any action or proceeding Is
t liniiting the generality of the preceding sentence, such costs and
include aif attorneys’ favs arid costs inourred by the Holter In connection with any federal
expenses6
or state bankruptey, Insolvency, reorganization, or ather similar proceeding by or against Maker or eny
tor of endorser of this Note which in any way affects the Holder's exercise of Its figtits and
remediés under this Note or under the Deed of Trust or any other agreement securing payment of this
Note.
12. N6 Offsets. No indebtedness evidenced by this Note shall be offset by all or part of any
claim, cause of action, or cross-claim of any kind, whether liquidated or unliquidated, which Maker now
has or may hereafter acquire or allege to have acquired against the Holder. To the fullest extent
permitted by law, Maker walves the benefits of any applicable law, regulation, or procedure which
provides, in substanes, that where cross defrands for money between parties at any point in time
‘when neither démand is barred by the applicable statute of Iimitations, and an action Is thereafter
commenced by ohe such party, the other party may assert the defense of payment in that the two
demands are compensated so far as they equal each other, notwithstanding that an independent action
B
MAKER'S INITIALS; Jj!
e @
Beserting the claim Would at the time of fillng the response be barred by the applicable statute of
Simftations..
Index. If the Index ceases to be made available, the Holder shall select an altemate
Index witigh is based upon, comparable Information to extent available and which is not subject te
comitrol or Influence by the Holder and thal, in-the Holder's
sole juigment, Is not Ukely to result in the Nota
Rate being substantially than if such prior Index had continued to be made available, In such
event, the Holder shall adjust the percefitage.polnt spread set forth in Sections 2.2(b} and 2.3 above (the
"Spread”) based on the value of the substituted Index as of the last precading date on which the interest
rate was adjusted or, If no such adjustment has yet occured, as. of the date of this Note, such that the
sum of the substituted Index and the adjusted Spread equals the sum of the priar Index plus the prior
Spread. Maker acknowledges and agrees that (a) the Index fepresents an index which is quoted,
pubiished or announced from time: to time as an Index for variable Interest rates; (b) the Indaxdoes not
represent tha lowsét iriterest fate charged by the Holder, and (c) loana may be made by the Holder at,
spave, oF
oF below the Index.
1 This Wolb shall Be governed by snd ‘herpréted In
eccoriatts wahpmah aw ‘State In which tie Property is. located, Maker shall have the right to
Bre all or part of the outstanding principal balance of this Note without payment
of any Prepayment
eB
sores!
- This Note shall be thre Joint
and several obligation of all Persons exedu
this note as Maker and if sureties, guarantors, and of this Note, and this Note shall be binding
upon each of such Persons and thelr respective. supoussors and assigns, subject to Section 9 above.
This Note shall inure to the benefit of the Holder and its suocessors and assigns.
IRREVOCABLY WAIVES ALL RIGHTS
A GURY ANY At ION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND
DIREGTLY OR INDIRECTLY ARISING GUT OF OR IN ANY WAY RELATING TO THE LOAN, THIS
NOTE, at DEED: OF TRUST SECURING THIS NOTE, Of ANY OF THE OTHER DOCUMENTS
MAKER | LOAN (COLLECTIVELY, THE “LOAN
DOCUMENTS), ANY OR ALL OF THE REAL AND PERSONAL PROPERTY COLLATERAL
SECURING THE LOAN, OR ANY OF THE WHICH ARE CONTEMPLATED BY THE
LOAN DOGUIMENTS, THE JURY TRIAL WAIVER CONTAINED IN THIS SECTION IS INTENDED TO
APPLY, TO THE PULLEST EXTENT PERMITTED BY LAW, TO ANY AND ALL DISPUTES AND
THAT ARISE OUT OF OR IN ANY way RELATED TO ANY GR ALL OF THE
MATTERS DESGRIBED IN THE PRECEDING SENTENCE, INCLUDING WITHOUT LIMITATION
CONTRAGT CLAIMS, TORT CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS
OF ANY KIND, MAKER ACKNOWL AGREES THAT (1) MAKER HAS CAREFULLY READ
AND UNDERSTANDS ALL OF THE TERMS OF THE LOAN DOCUMENTS, (2) MAKER HAS
EXECUTED THE LOAN DOCUMENTS FREELY AND VOLUNTARILY, AFTER HAVING CONSULTED
WITH MAKER'S INDEPENDENT LEGAL AND. APTER HAVING HAD ALL OF THE TERMS
OF THE LOAN. DOGUMENTS EXPLAINED TO IT BY ITS INDEPENDENT LEGAL COUNSEL OR
AFTER HAVING HAD A FULL AND ADEQUATE OPPORTUNITY TO CONSULT WITH MAKER'S
INDEPENDENT LEGAL COUNSEL; (3) THE WAIVERS CONTAINED IN THE LOAN DOCUMENTS ARE
REASONABLE, NOT CONTRARY TO PUBLIC POLICY OR LAW, AND HAVE BEEN INTENTIONALLY,
INTELLIGENTLY, KNOWINGLY, AND VOLUNTARILY AGREED TO BY MAKER; (4) THE WAIVERS
CONTAINED iN. THE LOAN DOCUMENTS HAVE AGREED TO BY KER H FULL
JOWLEDGE OF THEIR SIGNIFICANCE AND CONSEQUENCES, INCLUDING FULL KNOWLEDGE
OF THE SPECIFIC NATURE OF ANY RIGHTS OR DEFENSES WHICH MAKER HAS AGREED TO
WAIVE PURSUANT TO THE LOAN DGGUMENTS; (5) MAKER HAS HAD A FULL AND ADEQUATE
OPPORTUNITY TO NEGOTIATE THE TERMS CONTAINED IN THE LOAN 2B (8) MAKER:
6 MAKER'S INITIALS: JIS
@ @
1S EXPERIENCED IN AND FAMILIAR WITH LOAN TRANSACTIONS OF THE TYPE EVIDENCED BY
THE LOAN DOCUMENTS; AND (7) THE WAIVERS CONTAINED IN THE LOAN DOCUMENTS ARE
MATERIAL INDUGEMENTS TO THE HOLDER'S EXTENSION OF CREDIT TO MAKER, AND THE
HOLDER HAS RELIED ON SUCH WAIVERS IN MAKING THE LOAN TO MAKER AND WILL
CONTINUE TO RELY ON SUGH WAIVERS IN ANY RELATED FUTURE DEALINGS WITH MAKER.
THE WAIVERS GONTAINED IN THE LOAN SHALL APPLY TO ALL SUBSEQUENT
EXTENSIONS, RENEWALS, MODIFICATIONS, AND REPLACEMENTS OF THE LOAN DOCUMENTS.
THIS NOTE MAY SE FILED WITH GOURT OF COMPETENT JURISDICTION AS MAKER'S
WRITTEN CONSENT TO MAKER'S WAIVER OF A JURY TRIAL. MAKER HAS INITIALED THIS
SECTION BELOW TO INDICATE ITS AGREEMENT WITH THE JURY TRIAL WAIVER AND OTHER
TERMS CONTAINED IN THIS SECTION.
MAKER'S INITIALS
P
This Note is secured by a Deed of Trust dated the same date as this Note in
favor
of the Holder, as ben sticiary.
.
18, Non-Bgeoume Loan.
of the Holder
other Loan Documents
18.4
in the evant of rotate otherwise provided in this Section 46, the remedies
dott In tre performance of any of the terms of this Note or the
shall not inclade the dght 16 sedk a deficlenay judgment
f against Maker for the
indebtedness evidenced by this Note or any of the other Loan ments.
18.2 Notwithstanding an} ing to the contrary
contained In this Section 1! shall af all have the night (8) fo enfarce any or all of its
rights and remedies against any guarantor of any oF all of Maker's: Obligations under this Note, the Deed
of Trust, or fie pthar Loan Documents; (b) to enforae any or aif of its rgtite and remedies against any
Person to any lease affecting til or part of tlie read propeity or personal property coXateral
(collect
Loan; (c)
, the "Gollatetal"). secu
name Maker and any
, as kong as the
ot {tre Loan of ny similar rights to payment ia connection with the
jer Parson
as a patty defendant in any action oF suit for judicial
Holder does not obtalt any deficlency judgment against Maker which Is
prohibited by Section 18.1 above in such action or sult; (d) to enfaree any or all of its rights and remedies
against Maker, and to recover all e8, Costs; arid expenses, including without limitation attorneys’
fees and costs, arising ouf of or relating to any or ail of the following: (1) fraud or misrepreseritation
by
Maker or any cther Person In connection with or relating te the Loan; (2) waste by Maker or any other
Person with respect to any or afl of the Cellateral; (3) the applicationof the Loan proceeds in any manner
or for any purpose other than as specified in or required by the Loan Documents; (4) the removal or
dispastion of any or ell
of the Collateral in vicfation 6f any of the tennis of any of the Loan Documents; (5)
any violation of any Govemmental Requirements; (6) any failure. by Maker to pay any Impositions in
aosordanice with the Loan Documents; and (7) any sale, conveya 3, transfer, or encumbrance of all or
part of the Collateral or any other transfer or event ih Section 2.15 of the Deed of Trust witheut
Maket firet obtaining tha Holder's consant -theret
in ascordance with the Deed of o Trust; {e) fo recoveror
receive in accordance with the Loan Documents all Condemnation Proceeds, Insurance Proceeds,
Property Proceeds, or other similar proceeds, funds or paymants; fo recoveror recelva in accordance
with the Loan Dodcuatents all Rents. and other benefits of all or part of ary Collateral or any Leases,
Including without imitation all security d prepald rent, andl sitnilar suris peld to. Maker or anyother
Person in connsetion with any or ail of the Collateral; (g) to recover all amounts, dameges, cosis and
experises, Includirig without limitation atiomeys' fess, owing or payable fo the Holder by Maker under
Article 8: of the Deed of Trust refating to certain environmiearital matters or under any seoured oF ensecured
indemnity agreement relating to Hazantous Substances executed by Maker in connesticn with thie Loan,
Including without limitation Under (1) the Environmental ‘Agreement dated the samie date as this
Note executed by Maker In connection with the Loan; and (2) sill terms of the Loan Documents which
constitute “environmerttal provisions” (as defined In this Section) (for purposes of this Section, the term
‘MAKER'S INITIALS: fo
B
e e
“environmental provisions” means any written representation, warranty, Indemnity, promise, or covenant
relating to the existences, tocation, nature, use, generation, manufacture, storage, disposal, handling, or
Past, present, or future release or threatened release, of any Hazardous Substance Into, onto, ben .
or from the Property, or td past, present, or future compliance with any law relating thereto, made by
Maker In connection with thé Loan or any extension, renewal, or modification of the Loan, whether or not
the representation, warrarity, indemnity, promise, or covenant Is. or was contained in or secured by the
Deed of Trust, and whether or not the Deed of Trust hes been dischanjed, recon |, oF foreclosed
Upon), and if atid to the extant allowed of permitted by applicable law, to enforce any or all of the Holder's
rights arid rerredies which entita the Helder te elect to waive fire security of the Deed of Trust as to any
parcet of real property which Is contaniinated by any Hazardous Substance so as to materially Impair tha
value of suth parcel, (h) to obtain the appointment of a tecsiver in cormection with the Holder's exercise
of any of Its rights or remedies under the Loan Documents; {) f obtain any other provisional retief,
including without limitation a restraining order of preliminary injunction, Ih connection with the Holders
exertise of any of ita rights or remedies under the Loan Documents or with reapect to any or all of the
meters deseritied In clauses ( through (h) of this Seetion; and Gj): to reeaver from Maker all attomays'
fees end costs ncuired
by the Holder in collecting
from Mal Or all amounts daseribad in clauses (
Preview
E 12/22/16 G. Andrew Slater #238126 FRESNO COUNTY SUPERIOR COURT DOWLING AARON INCORPORATED By: K. Garrett, Deputy 8080 North Palm Avenue, Third Floor P.O. Box 28902 Fresno, California 93729-8902 Tel: (559) 432-4500 Fax: (559) 432-4590 aslater@dowlingaaron.com Attorneys for Defendants CITY NATIONAL BANK SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO CENTRAL DIVISION 10 11 SURJIT BAGGA. Case No. 16CECG03336 12 Plaintiff, DEFENDANT CITY NATIONAL BANK'S REQUEST FOR JUDICIAL NOTICE IN 13 Vv. SUPPORT ITS DEMURRER TO PLAINTIFF’S COMPLAINT 14 CITY NATIONAL BANK; and DOES 1-100. INCLUSIVE. Date: February7, 2017 15 Time: 3:30 p.m. Defendant Dept: 402 16 Judge: Hon. Jeffrey Hamilton 17 18 Pursuant to Evidence Code §§ 451 and 452, PLEASE TAKE NOTICE that 19 Defendant City National Bank (hereinafter, "CNB") submits the following Request for Judicial 20 Notice in support its Memorandum of Points and Authorities in support of its Demurrer to 21 plaintiff's complaint, filed concurrently herewith. 22 LEGAL AUTHORITY FOR JUDICIAL NOTICE 23 The purpose of judicial notice is to expedite the production and introduction of 24 otherwise admissible evidence. (Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 578.) 25 Judicial notice permits a court to consider as established in a case as a matter of law or fact that 26 is relevant to an issue without the necessity of formal proof by any party. (Post v. Prati (1979) 27 90 Cal.App.3d 626, 633.) Thus, judicial notice is a substitute for formal proof, the fundamental 28 theory being that matter judicially noticed cannot reasonably be disputed. (Id.) bow! AARON DEFENDANT CITY NATIONAL BANK'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT ITS IURRER TO P! INTIFF’S COMPLA’ The documents attached hereto as Exhibits A through U are documents previously filed with the court, or are facts not reasonably subject to dispute and capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy, and/or were recorded into the public record with the applicable Recorder’s Office in the county prescribed. This Court may take judicial notice of the recorded documents. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1116-1117.) Information Item No. 1 is a matter subject to immediate and accurate verification and/or commonly or universally known. (Evidence Code §§ 451 and 452.) CNB respectfully requests the Court take judicial notice of the following 10 information and documents attached hereto: ll Documents: 12 Exhibit A — A true and correct copy of the Promissory Note between CNB’s 13 predecessor-in-interest, Imperial Capital Bank (“Imperial”) and plaintiff, which contains an 14 endorsement by the Federal Deposit Insurance Corporation (“FDIC”) to CNB. 15 Exhibit B — A true and correct copy of the Deed of Trust in favor of Imperial 16 recorded in the Recorder’s Office of Fresno County on December 31, 2008, as Document No. 17 2008-0177551. 18 Exhibit C - A true and correct copy of the Assignment of Leases in favor of 19 Imperial Capital Bank recorded in the Recorder’s Office of Fresno County on December 31, 20 2008, as Document No. 2008-0177552. 21 Exhibit D — A true and correct copy of the Assignment of Deed of Trust from 22 the FDIC (as receiver for Imperial) to CNB recorded in the Recorder’s Office of Fresno County 23 on June 20, 2011, as Document No. 2011-0081778. 24 Exhibit E - A true and correct copy of the Notice of Public Nuisance or Housing 25 Violation Abatement Action recorded in the Recorder’s Office of Fresno County on July 20, 26 2010, as Document No. 2010-0092316. 27 Exhibit F - A true and correct copy of the Notice of Special Assessment 28 recorded in the Recorder’s Office of Fresno County on January 26, 2011, as Document No. Dow! DEFENDANT CITY NATIONAL BANK'S R) UEST FOR JUDICIAL NOTICE IN SUPPORT ITS DEMURRER TO PLAINTIFF'S COMPLAINT 2011-0013009. Exhibit G - A true and correct copy of the Notice of Special Assessment recorded in the Recorder’s Office of Fresno County on May 26, 2011, as Document No. 2011- 0071492. Exhibit H - A true and correct copy of the Notice of State Tax Lien recorded in the Recorder’s Office of Fresno County on September 23, 2011, as Document No. 2011- 0127892. Exhibit I - A true and correct copy of the Mechanic’s Lien recorded in the Recorder’s Office of Fresno County on January 9, 2013, as Document No. 2013-0003517. 10 Exhibit J - A true and correct copy of the Notice of Special Assessment recorded ll in the Recorder’s Office of Fresno County on May 7, 2013, as Document No. 2013-0066002. 12 Exhibit K - A true and correct copy of the Abstract of Judgment recorded in the 13 Recorder’s Office of Fresno County on February 11, 2014, as Document No. 2014-0018039. 14 Exhibit L - A true and correct copy of the Notice of Special Assessment 15 recorded in the Recorder’s Office of Fresno County on October 30, 2014, as Document No. 16 2014-0123991. 17 Exhibit M - A true and correct copy of the Notice of Lien (Judgment) recorded 18 in the Recorder’s Office of Fresno County on October 30, 2014, as Document No. 2014- 19 0123992. 20 Exhibit N — A true and correct copy of the Notice of Default recorded in the 21 Recorder’s Office of Fresno County on June 18, 2014, as Document No. 2014-0067700. 22 Exhibit O — A true and correct copy of the Substitution of Trustee recorded in 23 the Recorder’s Office of Fresno County on June 18, 2014, as Document No. 2014-0067699. 24 Exhibit P - A true and correct copy of the First Report of Receiver filed in 25 Fresno County Superior Court Case No. 14CECG02523 on or about November 3, 2014. 26 Exhibit Q - A true and correct copy of the Second and Final Report of Receiver 27 filed in Fresno County Superior Court Case No. 14CECG02523 on or about December 29, 28 2014. Dow ARON Sh DEFENDANT CITY NATIONAL BANK'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT ITS JEMURRER TO PL. INTIFF’S COMPLAINT Exhibit R — A true and correct copy of the Notice of Trustee Sale recorded in the Recorder’s Office of Fresno County on September 25, 2014, as Document No. 2014-0106296. Exhibit S — A true and correct copy of the Trustee’s Deed Upon Sale recorded in the Recorder’s Office of Fresno County on November 21, 2014, as Document No. 2014- 0132086. Exhibit T — True and correct copies of the applicable Limited Powers of Attorney recorded in the Recorder’s Office of Orange County on December 22, 2009 (Document No. 2009000684877), December 3, 2010 (Document No, 2010000651649), November 10, 2011 (Document No. 2011000574161), and November 12, 2012 (Document No. 10 201200305266), respectively. ll Exhibit U — A true and correct copy of plaintiffs complaint. 12 Information: 13 1 A copy of the Purchase and Assumption agreement between CNB and 14 the can be found on the FDIC website at: 15 https://www. fdic.gov/bank/individual/failed/imperialcapital_P_and_A.pdf. 16 Dated: December r¢ , 2016 DOWLING AARO) TED 1 18 By 19 drew Slater ttorney for Defendant 20 CITY NATIONAL BANK 21 22 014939-000004\02084201.DOCX. 23 24 25 26 27 28 DOWLING|AARON 7 DEFENDANT CITY NATIONAL BANK'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT ITS EMURRER TO PL. INTIFF’S COMPLAINT Exhibit A a Wh AERA PROMISSORY NOTE SECURED BY DEED OF TRUST (Fixed Rafe - Adjustable (Amortizinn} / Non-Receurss) $1,350,000.00 Los Angeles, California December 22, 2008 NOTICE TO BORROWER: THIS NOTE CONTAINS PROVISIONS FOR A VARIABLE INTEREST RATE. AND FOR VARIABLE PAYMENT AMOUNTS. - - 4: Pay. In Instatiments and et the tines stated In this Note, for value received, SURJIT BAGGA ( to pay to IMPERIAL CAPITAL BANK ("Hokier’), or order, at 600 N, Bradd Bd, Suite soe 4 Genaete, California 94: of at such other place as the Holder may from time to time designate in writing, the princips! surh of Millon Three Hundred Tlrousend and O/100 ($360,009.00), of so much thereof as may be disbursed the Holder, with Interest from the date of Initial disbursement of all or any gart of the principal of this Nc (the “Disbursement Date") on unpaid principal at the Interest rate or interest rates provided for in this Note. nigrest Rat Payment of Princi nteres 2. Certain Detinitions. For purposes of this Note, the followirig terms shall have the following definitions: (a) “Note Rate” means the per annum Interest rate on the principal sum of this Note which Is outstanding from time to time. “Fixed Raié" meafis a per annum interest rate equal to Six and Ninety Five One Hundredths Percent (6.95%) pet annum. (e) "Fixed Rate Term” means the period commencing on the Disbursement Daté and continuing fera term expiring Sixty (60) months after the first (1*) day of the first (1°) month following the Disbursement Date (of If the. Disbursement Date occurs on the first (1*) day of @ month, continuing for a term expiring Sixty (66) moriths after the Disbursement Date) during which interest at the Fixed Rate shall accrue on the outstanding principal balance of this. Note. (d) “Index” means the six (6) month London Interbank Offered Rate {LIBOR) as published In the Wall Street Journal. “Currel Index* means, with respect to each Interest Change Date, the most recent Index figure availdble as of the tenth (40th) day prior to such Interest Change Date. “Interest Change Date” means January 1, 2044 and each July tst, and January ‘st thereafter to and including July 1, 2078. REV. DA PROM, NOTE - FIXED RATEVADJ. (AMORTIZING) MAKER'S INITIALS: fo B e @ * Date” means February 1, 2014 and each August ‘tet, and February tst thereafter to and Including August 1, 2078. “amortization Period’ means a period of three hundred sixty (360) months.commencing on January 1, 2009. 6) “Remaining Amortization Perfod® means, with respect to each’ Payment Change Date, the number of months remaining in the Amortization Pesiod as of the Interest Change Date iromediately preceding such Payment Change Date. “instalment Date” means February 1, 2009 and the first (1st) day of each month thereafter to.and lachiding December 1, 2018. “Manthly Payment” meuns the total amourif of the monthly instalment, payment of principal and interact dure annd payable under fils Note on an InstaftnentPayyrtent Date, “Loan Year" means the period from the Disbursemerit Date t the first (to day ofthe eat th Jeridar month afterthe month In Which the Disbursement Date occurs together with the consecutive twelve (12) calendar month pertod following such first (tf) day, and (Il) each consetutive Wwaive (42) calendar month period commencing on the anniverssry of auch first (st) day. 22 Interest. Thé Note Rate shall be computed as follows: From thé Disbursement Dete to the first Interest Change Date after theEre Rate alert Peed the Note Rate. shall be equal to the Fixed Rate. nierest Rat interest ro Subject ONLY to 3(a) the lifetime maximum Interest rate Uh interest Change Date, the Note Rate shall te it mt calto te te referred to && the “Initlal Adjustable interest Rate“): effective as of the first of the following rates (such greater rate 8 rate equal to the niost recent Index figure published dnd avallabie 4¢ of the first Kiterest ‘Three and Twenty One Huridtédths fitage poltts per annum {the* ). Founded upward to the nearest one-thousandt a ‘ooo ofeme pertentage point (0.004 OR (il) the Fixed Rate. ‘Subject to the limitations contained in Section 2.3(b) below, theTotter ST irons Oo taereaes he Note Rate In aovordance with this Section 2.2{¢) commencing with the second Interest Date. The new Note Rata which becomes effective ed ‘Date shal be eqgal fo the Current index on each such Interest Chat ible to the Interest Change Date ia the Spread rauri upward to the nearest one-thousandths (1/1,000) of one parentage polnt (0,004%). 23 tafion io nterest Rat d Hustmer t on Date. Notwithstanding anything ‘0 the cont ry contained In 2.2(0) y sbove, as otherwise provided in Section 4 below, no change to the Note Rate shall be made on the first Interest Change Date to the extent that such change would result in an increase in the Note Rate above a rate that {s equal to Five (5) percentage points over the Fixed Rate. Rat Act pnts on 5 econ b) nd A Sul mt ia B Section toined Fi 2.2{¢) above, sid except as otherwise provided in Section 4 below, no changefo the Note Rate shail be made on the second and on any subsequent Interest Change Dates to the extent that such change {1) MAKER'S INITIALS: i. B j i i e e ‘woutd result in an increase in the Note Rate above a rate that Is equal to Five (6) percentage. points over tha Fixed Rate; or (ji). would result in an Increase in the Note Rate of more than ane percent (1.00%) over tha Note Rate that became effective on the immediately preceding Interest Charige Date; or (ill) would result in a decrease In the Note Rate to a tate which Is jess than the Fxed Rate. 24 Payments. Principal and interest shall be due and payable as follows: A single installment payment of Interest only for the period from theDisbursement Date fo the first (1st) day of the firet (1st} calendar month following the month in which the Disbursement Date occurs shall be due and payable on the Disbursement Date, (b) ape ment PPrin ri nel nts Burina Fix DO and 4, 200 on the firet (1 of each thereafter to and including the firs! t (1) day of the month Immediately preceding ‘the first Payment Change. Date, principal and stall be due end payesle In an aniount sufficient ta repay the hos of this Nott over the c Periad, together with initergst thereon, In égiral morithly installments at the Fixed Rate, no Principal interest During diustabl intrest Petiod. Princ | and be dua and on the ge Date and on each Instaliment Pay ae Oe ake bien The H joider shall Increase or decrsasé the Monthly Payment In accordance with this Section 2.4{c) affective oni each Payment Change Date, The Monthly Payment which shall be due on each Payment Change Date ard on each Installment Payment Date thereafter until the next Payinent C! 19 Date shalt be equal te the amount of the monthly payment that would be fo sufficient repay the principal balanes of tis Note outstanding immediately pracading tha Payment Change Data aver the Remaining Arto: Pariad, together with interest thereon, installments at the Note Rate in effect on the Interest Change Date Immedktely preceding the Payment Change Date. The entire unpaid principal balance of this Note and ail accrued and enpatd Interest thereon shall be due- and payable on January 4, 2679. Nobwithstanding anytting bo the contrary contained in this Nots (Including any ee Se hte toamortized payments of the cal culation of monthly pritclial and paymel nis over the Amortization Period of Rer Partod), Interest at the rates providedfor in this Note shall be computed on the basis of a three hundisd sixty (360) day year for the aetuat number of days during wulch the principal balance of this Note is outstaiding. Maker and agrees that the cafculation of interest on the basis described In the preceiing in the socrual and payment of interest in amounts greater than tose which woak! may result bet payable: Finterest were calcullated on the basis of a thres hu sixty-five (865) day’ year. Alt payments under thig Note shall be made In immediately avaiable funds. and shall be cradi ted Arst acorued interest then due and thereafter to unpaid principal and then Impound charges and other charges, fees, costs and expenses payable’by Maker urider this Note of if corinection with the joan evidenced this Note (the *Loan*) Ia such order as the Holder may determine In its sole and absolute disoretion. If eny paymen Is not made when due, et the option of the Holder of this Note, such interest payment of Intaést t shall bear interest at the same rate as from and after the due date of the Interest payment. Principal and ihtarest shati be payable only in lawful money of the United States of Ametiva. From and éfter elther (a) the occurrence of an Event of Defaut ierstrotor rat the Holder hes elected fo accelerate unpaid principal and Interest under this Note as a resuif of such Event of Default); or (b) the maturity of thls Note (wtiether the stated maturity date of this Note or the maturity date resulting from the Holder's acceleration of unpaid principal and interest), then iti either of such circumstances, interest on the unpaid principal balance of this Note shall acctue at a rate equal to the greater of (I) eighteen percent (18%} per annum; or (ii) five percent (5%) per annum above the otherwise applicable rate of interest under Section: 2.2 above. AaB MAKER'S INITIALS! Jf e @ te 8. any installment of Intersst, principal, or both principal and interest under {tls Note- Isten (10) days after the date on whictrit la due, Maker shall Immediate not paid within lya pay late charge equal to ten percant 0%) of such Installinent to the Holder to compensate the Holder for administrative costs and expenses Incurred in with such late payment Maker agrees that the actual dame suffered by the Holder deoause of any. late instalment payment sre extremely difficult and impracticable to ascertain, and. the late charge dasérited In this Section represents a reasonable attemptto fix such under the croumstances existing at the time this Nofe is executed. The Holders acceptance of any late charge shall not consttute-a Waiver ef any of the tens of Itits Nols and shall not affect the Holder's right to enforce any of its rights and remedies egalnet any Person liable for payment Note, a Maker and all sureties, guarantors, endorsers and other Persons liable for payment of this Nofe (a) walve presentment, demand for notice of damand, dishonor, protest and nenpayment, and all other notices and demandsin connection will the delivery, aecaptance, jerformance, default unter, 2nd enfoofrcem ent this Note; (b) waive the right to assert any stitute of ie Emitations vs-a défense tothe Yeerient of this Note-to the fullest extent permitted by faw, (a) consent 10 elt extensions and renewals of thie time of payment of this Note and fo all modifications of thie Note by the Holder and Maker without notice to and without in ehy way effecting tte (lability of any Person for payment af this Nota; (¢) consent to any fo mearance ty the Holder and to the telease, addition, ant substtution of any Paisdn lable for payment {oF this Néte eid of any or all of the’ seourity’ for this Note Sore without natice to and without in any way affacting the liability of arly Person for tof this Note; atid of them ty the courts of the atta in which the Propary is al fut y risdiction over ‘each proc i jection withiiny adtion arislhg Under this Nota and tt'service GF fais of the state In which'the Property Is located. Without linniting the ge neralty of tha 2raceding sentence, (i) any notios which the Holder ray siect to. give regarding arlyfo a5justrnent in thie a “Note Rate Note Rate made pursuan t terms of this Note (any such to the Aahjustnent) {incfuding any such noties contained in er of any Note statement issued by the Holder) shall not ft; and the Holder's be construed as Hokl nobfy Mak to er failure to give, or dafay in. giving, int to Maker shall not in arty way inipailr of affectthe, validity or enforcoabityof such Note Adjustment or Meker’s fo euch Noté Rate Adjustment urider the terms of this Note. obligation to pay interest purauant te The Holder, at ifs nption ant without notioa to or dernand on Maker or arty other Person, may terminate any of all obligations witich it may have te extend further credit to Maker and may declare the entire unpaid principalbalance of this Note and ali scorued intdrest thereon to be Immediately due and payable upon the occurrence of any Event of Default eo ate Upon the occiitence of any Event of Sanieeter ot an Default, the Hoi der, ‘af its option, fa) shail have the ight to apply af payments made undsr this Note to fees, costs and expenses by Maker impound charges, ‘and other under this Rote of in connection with the Loan In such order and amounts ds the Holler may determine fy and its Sole and alsolute discre (b} stall have the right to declare Maker to be int default under any or tion; Maker In favor of the Holder, ofnts all other extstirig or future notes, obligations or agieeme Tra ». Reference Is made to the deed of trust securing thisNote the “Dead ohinet) ‘and the other documents executed by Maker in connection with the Lean for additionat rights of the Holder to atcelerate the Unpaid principal balanos and accrued Interest under this Note, The Deed of Trust provides, In part, 2s follows: “Beneficiary shall have the right, at fts option and withaut notice to or demand on Trustor, to declare any of all Cibligsitions fo be Wy due and payable # any of the faflowing. 61 occurs without Benefistary'’s prior written consent (8) the sale, , hiorgage, encumbrance, lease or alienation of all or any part of the Property or sny intérast ih the Property, whether voluntary or Involuntary, or Trustor’s grant of any option or agreement to effect any such tainsaction; (b) iF Trustor o any General Partner or Manager ‘Trustzt fs 4 partnership, the admissidn, withdrawal, retirement or removal of any Genera! Partner of Trustor or any of ‘Trustor's Genétal: Partners of Managers, or the sale SURS! T Bil Cop IMAKER’S INITIALS: J. 4 f 4B e @ of transfer of more than twenty-five percent (25%) of the beneficial interests in Trustor or any of Trustor’s General Partners or Managers; (¢) If Trustor or any General Partner or Manager of Trustor is a corporation, tfie sale or transfer of an aggregate of more than twenty-five percent (25%) of any class of stock in such corporation or the Issuance by such of additional stock te any Person who Is not a shareholder in such corporation as of the date of this Deed of Trust (d) if Trustor or any Generel Partnar or Manager of Trustor Is a limited liability campany, the appointment, withdrawal, retirement or femibval. of any Ménager of Trustor or of Fruster's General Partners or Managers or the sate or transfer of more than twenty-five percent (25%) of the beneficial interests In Trustor or any of Trustor’s Genera? Parthers or Managers; (e) i Trustor or any of Trustors General Partners or Managers fs & corporation, partnership, dr limited lisbility company, the dissatution or lquidetion of Trustor or any of Trustor’s General Partiers or Managers; or (f, any change in: the character or use of afl of part of the fs Including drilling for or the extraction of olf, gas or any other hydrotarbon substance or ths lease of al or any pert of the Property for any such purpoag, Without limiting the geneity of any provision of this Ded of Trust (Including Seotion 6.8 consent fo any or ali of the events described in this Seotion may ? be withheld by in is-sole and absotufe discretion. Benefidary's consent to any event described in this Seetion bhell not: deemed to bp a.consent to, or a walver of the right to require such consent for, any other event. Far purposes of this Section, {f) the term ' rehip’ indludes a general partnership, liniited , limited Rability partnership, and Joint venture; and, (i) the tamny ‘Maitager means anyPerson who ig acting as @ manager of a kinited Rabifity company, including any meniber who is actirig in such capacity.” 10. No im No modification or of any this Note shail be va or bi ‘on the Holder unless such modification or waiver is in writing and sigried by the Holder. Without [ln thie generality of the preceding sentance, no delay, omission or forbearance by the Holder In exercising or remetioe, The Holder's rights and remedies under f its rights and remadiee under this Nofa shatl constitute a walver of such rights or other fagal and equitable rights and this Nols are cumvistive with and in edition to all which the Holder may heve in connection with tha Loait. The headings to sections of this Note are for convenient referetice only and shall not be used in Interpretirig is Mote, If this Note is fost, atolen, or destroyed, upon Maker's recelpt of 8 reasonably ry indemnification jeret by the Holder, or #f this: Note is mutilated, opon the Holder's. surrender of the mutilated Note ts Maker, exepute and deliver to the Holler a now promissory nesteWhich Is Identical In form and content to this Note to replace the lost, stolen, dest or Ad terms with an Initial letter are used but not specifically defined in this Note shall have the paspective rheanings given to such terms in the Deed of Trust. Time ts of esseticd in the pérforinancs of each provision of this Note by Maker. . Atromexe- Fees. ff Maker defaults under any of the terme of this Note, Maker shall pay all Oésts ard expanses, ieludi g without limitation altomeys’ fees and coats, Incurred by the Holder in enforcing this Note tri jediate commented the Holder. wit pon the Holder's damend, whether or not any action or proceeding Is t liniiting the generality of the preceding sentence, such costs and include aif attorneys’ favs arid costs inourred by the Holter In connection with any federal expenses6 or state bankruptey, Insolvency, reorganization, or ather similar proceeding by or against Maker or eny tor of endorser of this Note which in any way affects the Holder's exercise of Its figtits and remediés under this Note or under the Deed of Trust or any other agreement securing payment of this Note. 12. N6 Offsets. No indebtedness evidenced by this Note shall be offset by all or part of any claim, cause of action, or cross-claim of any kind, whether liquidated or unliquidated, which Maker now has or may hereafter acquire or allege to have acquired against the Holder. To the fullest extent permitted by law, Maker walves the benefits of any applicable law, regulation, or procedure which provides, in substanes, that where cross defrands for money between parties at any point in time ‘when neither démand is barred by the applicable statute of Iimitations, and an action Is thereafter commenced by ohe such party, the other party may assert the defense of payment in that the two demands are compensated so far as they equal each other, notwithstanding that an independent action B MAKER'S INITIALS; Jj! e @ Beserting the claim Would at the time of fillng the response be barred by the applicable statute of Simftations.. Index. If the Index ceases to be made available, the Holder shall select an altemate Index witigh is based upon, comparable Information to extent available and which is not subject te comitrol or Influence by the Holder and thal, in-the Holder's sole juigment, Is not Ukely to result in the Nota Rate being substantially than if such prior Index had continued to be made available, In such event, the Holder shall adjust the percefitage.polnt spread set forth in Sections 2.2(b} and 2.3 above (the "Spread”) based on the value of the substituted Index as of the last precading date on which the interest rate was adjusted or, If no such adjustment has yet occured, as. of the date of this Note, such that the sum of the substituted Index and the adjusted Spread equals the sum of the priar Index plus the prior Spread. Maker acknowledges and agrees that (a) the Index fepresents an index which is quoted, pubiished or announced from time: to time as an Index for variable Interest rates; (b) the Indaxdoes not represent tha lowsét iriterest fate charged by the Holder, and (c) loana may be made by the Holder at, spave, oF oF below the Index. 1 This Wolb shall Be governed by snd ‘herpréted In eccoriatts wahpmah aw ‘State In which tie Property is. located, Maker shall have the right to Bre all or part of the outstanding principal balance of this Note without payment of any Prepayment eB sores! - This Note shall be thre Joint and several obligation of all Persons exedu this note as Maker and if sureties, guarantors, and of this Note, and this Note shall be binding upon each of such Persons and thelr respective. supoussors and assigns, subject to Section 9 above. This Note shall inure to the benefit of the Holder and its suocessors and assigns. IRREVOCABLY WAIVES ALL RIGHTS A GURY ANY At ION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND DIREGTLY OR INDIRECTLY ARISING GUT OF OR IN ANY WAY RELATING TO THE LOAN, THIS NOTE, at DEED: OF TRUST SECURING THIS NOTE, Of ANY OF THE OTHER DOCUMENTS MAKER | LOAN (COLLECTIVELY, THE “LOAN DOCUMENTS), ANY OR ALL OF THE REAL AND PERSONAL PROPERTY COLLATERAL SECURING THE LOAN, OR ANY OF THE WHICH ARE CONTEMPLATED BY THE LOAN DOGUIMENTS, THE JURY TRIAL WAIVER CONTAINED IN THIS SECTION IS INTENDED TO APPLY, TO THE PULLEST EXTENT PERMITTED BY LAW, TO ANY AND ALL DISPUTES AND THAT ARISE OUT OF OR IN ANY way RELATED TO ANY GR ALL OF THE MATTERS DESGRIBED IN THE PRECEDING SENTENCE, INCLUDING WITHOUT LIMITATION CONTRAGT CLAIMS, TORT CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS OF ANY KIND, MAKER ACKNOWL AGREES THAT (1) MAKER HAS CAREFULLY READ AND UNDERSTANDS ALL OF THE TERMS OF THE LOAN DOCUMENTS, (2) MAKER HAS EXECUTED THE LOAN DOCUMENTS FREELY AND VOLUNTARILY, AFTER HAVING CONSULTED WITH MAKER'S INDEPENDENT LEGAL AND. APTER HAVING HAD ALL OF THE TERMS OF THE LOAN. DOGUMENTS EXPLAINED TO IT BY ITS INDEPENDENT LEGAL COUNSEL OR AFTER HAVING HAD A FULL AND ADEQUATE OPPORTUNITY TO CONSULT WITH MAKER'S INDEPENDENT LEGAL COUNSEL; (3) THE WAIVERS CONTAINED IN THE LOAN DOCUMENTS ARE REASONABLE, NOT CONTRARY TO PUBLIC POLICY OR LAW, AND HAVE BEEN INTENTIONALLY, INTELLIGENTLY, KNOWINGLY, AND VOLUNTARILY AGREED TO BY MAKER; (4) THE WAIVERS CONTAINED iN. THE LOAN DOCUMENTS HAVE AGREED TO BY KER H FULL JOWLEDGE OF THEIR SIGNIFICANCE AND CONSEQUENCES, INCLUDING FULL KNOWLEDGE OF THE SPECIFIC NATURE OF ANY RIGHTS OR DEFENSES WHICH MAKER HAS AGREED TO WAIVE PURSUANT TO THE LOAN DGGUMENTS; (5) MAKER HAS HAD A FULL AND ADEQUATE OPPORTUNITY TO NEGOTIATE THE TERMS CONTAINED IN THE LOAN 2B (8) MAKER: 6 MAKER'S INITIALS: JIS @ @ 1S EXPERIENCED IN AND FAMILIAR WITH LOAN TRANSACTIONS OF THE TYPE EVIDENCED BY THE LOAN DOCUMENTS; AND (7) THE WAIVERS CONTAINED IN THE LOAN DOCUMENTS ARE MATERIAL INDUGEMENTS TO THE HOLDER'S EXTENSION OF CREDIT TO MAKER, AND THE HOLDER HAS RELIED ON SUCH WAIVERS IN MAKING THE LOAN TO MAKER AND WILL CONTINUE TO RELY ON SUGH WAIVERS IN ANY RELATED FUTURE DEALINGS WITH MAKER. THE WAIVERS GONTAINED IN THE LOAN SHALL APPLY TO ALL SUBSEQUENT EXTENSIONS, RENEWALS, MODIFICATIONS, AND REPLACEMENTS OF THE LOAN DOCUMENTS. THIS NOTE MAY SE FILED WITH GOURT OF COMPETENT JURISDICTION AS MAKER'S WRITTEN CONSENT TO MAKER'S WAIVER OF A JURY TRIAL. MAKER HAS INITIALED THIS SECTION BELOW TO INDICATE ITS AGREEMENT WITH THE JURY TRIAL WAIVER AND OTHER TERMS CONTAINED IN THIS SECTION. MAKER'S INITIALS P This Note is secured by a Deed of Trust dated the same date as this Note in favor of the Holder, as ben sticiary. . 18, Non-Bgeoume Loan. of the Holder other Loan Documents 18.4 in the evant of rotate otherwise provided in this Section 46, the remedies dott In tre performance of any of the terms of this Note or the shall not inclade the dght 16 sedk a deficlenay judgment f against Maker for the indebtedness evidenced by this Note or any of the other Loan ments. 18.2 Notwithstanding an} ing to the contrary contained In this Section 1! shall af all have the night (8) fo enfarce any or all of its rights and remedies against any guarantor of any oF all of Maker's: Obligations under this Note, the Deed of Trust, or fie pthar Loan Documents; (b) to enforae any or aif of its rgtite and remedies against any Person to any lease affecting til or part of tlie read propeity or personal property coXateral (collect Loan; (c) , the "Gollatetal"). secu name Maker and any , as kong as the ot {tre Loan of ny similar rights to payment ia connection with the jer Parson as a patty defendant in any action oF suit for judicial Holder does not obtalt any deficlency judgment against Maker which Is prohibited by Section 18.1 above in such action or sult; (d) to enfaree any or all of its rights and remedies against Maker, and to recover all e8, Costs; arid expenses, including without limitation attorneys’ fees and costs, arising ouf of or relating to any or ail of the following: (1) fraud or misrepreseritation by Maker or any cther Person In connection with or relating te the Loan; (2) waste by Maker or any other Person with respect to any or afl of the Cellateral; (3) the applicationof the Loan proceeds in any manner or for any purpose other than as specified in or required by the Loan Documents; (4) the removal or dispastion of any or ell of the Collateral in vicfation 6f any of the tennis of any of the Loan Documents; (5) any violation of any Govemmental Requirements; (6) any failure. by Maker to pay any Impositions in aosordanice with the Loan Documents; and (7) any sale, conveya 3, transfer, or encumbrance of all or part of the Collateral or any other transfer or event ih Section 2.15 of the Deed of Trust witheut Maket firet obtaining tha Holder's consant -theret in ascordance with the Deed of o Trust; {e) fo recoveror receive in accordance with the Loan Documents all Condemnation Proceeds, Insurance Proceeds, Property Proceeds, or other similar proceeds, funds or paymants; fo recoveror recelva in accordance with the Loan Dodcuatents all Rents. and other benefits of all or part of ary Collateral or any Leases, Including without imitation all security d prepald rent, andl sitnilar suris peld to. Maker or anyother Person in connsetion with any or ail of the Collateral; (g) to recover all amounts, dameges, cosis and experises, Includirig without limitation atiomeys' fess, owing or payable fo the Holder by Maker under Article 8: of the Deed of Trust refating to certain environmiearital matters or under any seoured oF ensecured indemnity agreement relating to Hazantous Substances executed by Maker in connesticn with thie Loan, Including without limitation Under (1) the Environmental ‘Agreement dated the samie date as this Note executed by Maker In connection with the Loan; and (2) sill terms of the Loan Documents which constitute “environmerttal provisions” (as defined In this Section) (for purposes of this Section, the term ‘MAKER'S INITIALS: fo B e e “environmental provisions” means any written representation, warranty, Indemnity, promise, or covenant relating to the existences, tocation, nature, use, generation, manufacture, storage, disposal, handling, or Past, present, or future release or threatened release, of any Hazardous Substance Into, onto, ben . or from the Property, or td past, present, or future compliance with any law relating thereto, made by Maker In connection with thé Loan or any extension, renewal, or modification of the Loan, whether or not the representation, warrarity, indemnity, promise, or covenant Is. or was contained in or secured by the Deed of Trust, and whether or not the Deed of Trust hes been dischanjed, recon |, oF foreclosed Upon), and if atid to the extant allowed of permitted by applicable law, to enforce any or all of the Holder's rights arid rerredies which entita the Helder te elect to waive fire security of the Deed of Trust as to any parcet of real property which Is contaniinated by any Hazardous Substance so as to materially Impair tha value of suth parcel, (h) to obtain the appointment of a tecsiver in cormection with the Holder's exercise of any of Its rights or remedies under the Loan Documents; {) f obtain any other provisional retief, including without limitation a restraining order of preliminary injunction, Ih connection with the Holders exertise of any of ita rights or remedies under the Loan Documents or with reapect to any or all of the meters deseritied In clauses ( through (h) of this Seetion; and Gj): to reeaver from Maker all attomays' fees end costs ncuired by the Holder in collecting from Mal Or all amounts daseribad in clauses (