Deed of Trust, Assignment of Rents and Fixture Filing - City National Bank and Daily Journal Corp.
Recording Requested By
And When Recorded Mail To:
City National Bank
9701 Wilshire Boulevard, Suite 600
Beverly Hills, CA 90212
Attn: Real Estate Group #054-01
Pete de Leon
Loan No. 65393
================================================================================
DEED OF TRUST, ASSIGNMENT OF RENTS AND FIXTURE FILING
This Deed of Trust, Assignment of Rents and Fixture Filing (this "Deed of
Trust") is made this 2nd day of January, 2001, between DAILY JOURNAL
CORPORATION, a South Carolina corporation, herein called TRUSTOR, whose address
is 915 E. First Street, Los Angeles, California 90012, Commonwealth Land Title
Insurance Company, a California corporation, herein called TRUSTEE, and City
National Bank, a national banking association, 9701 Wilshire Boulevard, Suite
600, Beverly Hills, California 90212, herein called BENEFICIARY.
Trustor IRREVOCABLY GRANTS, TRANSFERS, CONVEYS AND ASSIGNS to TRUSTEE IN
TRUST, WITH POWER OF SALE AND RIGHT OF ENTRY AND POSSESSION, that certain real
property in Los Angeles County, California (the "Property"), commonly known as
915 E. First Street, Los Angeles, California 90012 and more particularly
described in Exhibit "A" attached hereto and by this reference incorporated
herein;
A. TOGETHER WITH all the reversionary estate, right, title and interest of
Trustor in and to all leases and other occupancy agreements affecting the
Property or any portion thereof now or hereafter existing or entered into,
together with any and all amendments, extensions and renewals thereof (the
"Leases"), and any and all guaranties of the obligations of lessees under the
Leases and under any and all amendments, extensions and renewals thereof, and
all right, title and interest of Trustor thereunder, including, without
limitation, all cash or security deposits, advance rentals, and deposits or
payments of a similar nature;
B. TOGETHER WITH an absolute assignment of all rents, income, receipts,
revenues, royalties, issues and profits and other benefits (collectively, the
"Rents") now due or which may become due or to which Trustor may now or shall
hereafter become entitled or may demand or claim, arising or issuing from or out
of the Leases, or from or out of the Trust Estate (as hereinafter defined) or
any part thereof, subject, however, to a license granted by Beneficiary to
Trustor, as hereinafter provided, to collect and receive all of the Rents;
C. TOGETHER WITH any and all buildings and improvements now or hereafter
erected thereon (the "Improvements"), and all materials intended for
construction, re-construction, alteration and repair of the Improvements, all of
which materials shall be deemed to be included within the Property immediately
upon the delivery thereof to the Property and including, but not
1
<PAGE>
limited to, the fixtures, attachments, and other articles attached to the
Improvements (unless the context clearly indicates otherwise, all references
herein to the "Property" shall be deemed to include not only the real property
described in Exhibit "A" attached hereto but also the Improvements and all
easements and other real property rights and interests appurtenant to the
Property);
D. TOGETHER WITH all right, title and interest of Trustor in and to all
options to purchase or lease the Property or any portion thereof or interest
therein;
E. TOGETHER WITH all right, title and interest of Trustor in and to all
easements, rights-of-way and rights used in connection therewith or as a means
of access thereto, and all tenements, hereditaments and appurtenances thereof
and thereto, and all development rights, mineral rights, water rights and shares
of stock evidencing the same;
F. TOGETHER WITH all right, title and interest of Trustor in and to any land
lying within the right-of-way of any street, open or proposed, adjoining the
Property, and any and all sidewalks, alleys and strips and gores of land
adjacent to or used in connection with the Property;
G. TOGETHER WITH all interests, estates or other claims, both in law and in
equity, which Trustor now has or may hereafter acquire in the Property; and
H. Trustor further GRANTS, TRANSFERS, CONVEYS AND ASSIGNS to BENEFICIARY as
security for the Secured Obligations, as such term is defined below, all right,
title and interest of Trustor in and to all accounts held by Beneficiary in
connection with the loan transaction secured hereby, including the loan funds,
whether disbursed or not, and the account in which Trustor, as borrower, has or
will deposit borrower's funds in connection with such transaction;
I. TOGETHER WITH all right, title and interest of Trustor in and to all
claims, causes of action and recoveries by settlement or otherwise for any
damage to, or loss, taking, or diminution in the value of, any of the Property,
or for any breach (or rejection in bankruptcy) of any lease of the Property or
Collateral (as hereinafter defined) to Trustor as lessee, by any lessor
thereunder (or such lessor's trustee in bankruptcy);
J. TOGETHER WITH all right, title and interest of Trustor in and to any
fixtures or attachments used for generating or distributing air, water, heat,
electricity, light, fuel or refrigeration, or for ventilating or sanitary
purposes, or for the exclusion of vermin or insects, or for the removal of dust,
refuse or garbage; all wall beds, wall safes, built-in furniture and
installations, doorstops, vaults, motors, elevators, dumbwaiters, awnings,
window shades, venetian blinds, light fixtures, fire hoses and brackets and
boxes for the same, fire sprinklers, alarm systems, draperies, drapery rods and
brackets, mirrors, mantels, screens, linoleum, carpets and carpeting, plumbing,
bathtubs, sinks, basins, pipes, faucets, water closets, laundry equipment,
heating units, disposals, water heaters, incinerators, fixtures; together with
all additions to, substitutions for, changes in or replacements or renewals of
the whole or any part of such articles of property; all of such items, whether
now or hereafter installed, being hereby declared to be for all purposes of this
Deed of Trust a part of the Property;
K. [Intentionally Omitted.]
2
<PAGE>
L. TOGETHER WITH all building permits and any other licenses and approvals
that may be required by the governmental authorities having or exercising
jurisdiction over the construction of the Improvements;
M. TOGETHER WITH all plans and any working drawings that are used or intended
for use in constructing the Improvements, whether in the possession of the
Trustor, any architect employed by Trustor, the general contractor, any
subcontractor or materialman;
N. TOGETHER WITH all the estate, interest, right, title or other claim or
demand, including claims or demands with respect to the proceeds of insurance in
effect with respect thereto, which Trustor now has or may hereafter acquire in
the Property, and any and all awards made for the taking by eminent domain, or
by any proceeding or purchase in lieu thereof, of the whole or any part of the
Property, including, without limitation, any awards resulting from a change of
grade of streets and awards for severance damages;
O. TOGETHER WITH all refunds, rebates, reimbursements, reserves, deferred
payments, deposits, cost savings, governmental subsidy payments, government-
registered credits (such as emissions reduction credits), other credits, waivers
and payments, whether in cash or in kind, due from or payable by (i) any
federal, state, municipal or other governmental or quasi-governmental agency,
authority or district (a "Governmental Agency") or (ii) any insurance or utility
company, relating to any or all of the Property or arising out of the
satisfaction of any conditions imposed upon or the obtaining of any approvals
for the development of the Property;
P. TOGETHER WITH all refunds, rebates, reimbursements, credits and payments of
any kind due from or payable by any Governmental Agency for any taxes, special
taxes, assessments, or similar governmental or quasi-governmental charges or
levies imposed upon Trustor with respect to the Property or upon any or all of
the Property itself or arising out of the satisfaction of any conditions imposed
upon or the obtaining of any approvals for the development of the Property; and
Q. TOGETHER WITH all rights that Trustor may have as declarant under any
covenants, conditions or restrictions affecting the Property; and
R. [Intentionally Omitted.]
The entire estate, property and interest hereby conveyed to Trustee may
hereinafter be collectively referred to as the "Trust Estate."
Notwithstanding anything to the contrary set forth herein, the term "Trust
Estate" shall not include (i) any of the printing presses used by Trustor in its
business and located at the Property, (ii) any personal property owned by
Trustor and located at the Property or (iii) any collateral in which Beneficiary
has granted a security interest in connection with that certain $4,000,000.00
revolving line of credit extended by Beneficiary to Trustor as of January 2,
2001, or any extension, modification or renewal thereof.
3
<PAGE>
1. THIS DEED OF TRUST IS MADE FOR THE PURPOSE OF SECURING THE FOLLOWING
OBLIGATIONS (THE "SECURED OBLIGATIONS") IN ANY ORDER OF PRIORITY THAT
BENEFICIARY MAY CHOOSE:
1.1 Due, prompt and complete performance of each obligation, covenant and
agreement of Trustor herein contained, and repayment of any funds advanced by or
which Beneficiary or Trustee become obligated to advance under this Deed of
Trust with interest thereon, at the Default Rate, as hereinafter provided.
1.2 Payment of the indebtedness in the principal sum of Two Million and
00/100ths Dollars ($2,000,000.00), with interest thereon, evidenced by one
Promissory Note ("Note") of even date herewith executed by Trustor, as Borrower,
in favor of Beneficiary or order, and any modification, replacement, extension
or renewal thereof, (the "Indebtedness").
1.3 [Intentionally Omitted.]
1.4 Payment and performance of such further sums and obligations of the
then record owner of Property arising from any and all existing and future
agreements and transactions with Beneficiary when a writing evidences the
parties' agreement that the obligation or advance be so secured.
1.5 Due, prompt and complete payment and performance of each obligation,
covenant and agreement of Trustor under a Supplemental Terms Letter of even date
herewith executed by Trustor as "Borrower" and Beneficiary as "Lender," and all
supplements, amendments and modifications thereto and all extensions and
renewals thereof (the "Supplemental Letter"), or in any other instrument
heretofore or hereafter executed by Borrower having reference to or arising out
of the loan transaction secured hereby which recites that the obligations
thereunder are secured by this Deed of Trust.
1.6 [Intentionally Omitted.]
1.7 [Intentionally Omitted.]
1.8 [Intentionally Omitted.]
This Deed of Trust, the Supplemental Letter, any guaranty thereof and any
other instrument given to evidence or further secure the payment and performance
of any obligation secured hereby may hereinafter be referred to as the "Loan
Documents." In no event shall this Deed of Trust be deemed given to secure the
obligations of Trustor, or any other "Indemnitor" thereunder, arising under any
Environmental Indemnity Agreement made in respect of the Property, or the
obligations of the guarantor under any guaranty given in support of the Secured
Obligations, or any other obligor under an instrument given to further secure
the Secured Obligations, notwithstanding the fact that such agreement, guaranty
and instrument shall constitute Loan Documents as herein defined.
4
<PAGE>
2. TRUSTOR WARRANTS TO BENEFICIARY AND TRUSTEE THAT:
2.1 It has good and marketable title to an indefeasible fee estate in the
Property and good and marketable title to the balance of the Trust Estate,
subject to no liens, encumbrances, easements, assessments, security interest,
claims or defects of any kind except (a) those listed in Beneficiary's title
insurance policy and approved by Beneficiary in writing (the "Exceptions"), and
(b) real estate taxes for the current year;
2.2 The Exceptions and the real estate taxes are not delinquent or in
default;
2.3 It has the right to grant a security interest in the Trust Estate;
2.4 Subject to the Exceptions, this Deed of Trust creates a first priority
lien on the Property;
2.5 It will maintain and preserve the lien of this Deed of Trust until the
Indebtedness has been paid in full; and
2.6 Subject to the Exceptions, it has good, right and lawful authority to
grant the liens and security interest as provided in and by this Deed of Trust.
3. AFFIRMATIVE COVENANTS AND AGREEMENTS OF TRUSTOR:
3.1 Payment of Indebtedness. Trustor shall promptly pay and perform each
Secured Obligation in accordance with its terms.
3.2 Maintenance, Repair and Alterations. Trustor shall, with respect to
the Property:
3.2.1 Keep the Property in good condition and repair;
3.2.2 Not remove, demolish, diminish in any respect or materially
alter any of the Improvements (including landscaped and recreation areas) or any
on-site paved parking area and/or structures, and in the event of the demolition
or destruction in whole or in part of any of the fixtures covered hereby and so
long as such demolition or destruction is occasioned by a casualty for which
Trustor is required to maintain insurance under this Deed of Trust, the same
shall be replaced promptly by similar fixtures, of superior titles, liens and
claims and of a value at least equal to the value of the fixtures demolished or
destroyed;
3.2.3 Except as otherwise may be contemplated under the Supplemental
Letter, Trustor shall not erect any new structures of any kind or additions to
existing buildings or other structures which would alter the nature or lessen
the quality of the Property or Improvements without the prior written consent of
Beneficiary, which consent shall not be unreasonably withheld;
3.2.4 Complete or restore promptly and in good and workmanlike
manner any building or other structure that may be constructed, damaged or
destroyed and pay when due all claims for labor performed and materials
furnished therefor;
5
<PAGE>
3.2.5 Comply with all laws, ordinances, regulations, covenants,
conditions and restrictions now or hereafter affecting the Property or any part
thereof or requiring any alterations or improvements to be made thereon;
3.2.6 Not commit, suffer or permit waste or deterioration of the
Property;
3.2.7 Not commit, suffer or permit any act upon Property in
violation of law, including but not limited to all Federal, state and local
statutes, ordinances or regulations relating to hazardous or toxic waste or
waste products or hazardous substances (as more fully provided in the
Supplemental Letter);
3.2.8 Cultivate, irrigate, fertilize, fumigate, prune and do all
other acts which from the character or use of the Property may be reasonably
necessary to maintain its value, the specific enumerations herein not excluding
the general;
3.2.9 Provide, maintain and deliver to Beneficiary, at no expense to
Beneficiary or Trustee, such evidence of insurance coverage, in accordance with
the requirements set forth in the Insurance Letter and the Supplemental Letter,
as is satisfactory to and with loss payable to Beneficiary;
3.2.10 Appear in and defend any action or proceeding purporting to
affect the security hereof or the rights or powers of Beneficiary or Trustee
created hereunder, and protect, preserve and defend the Property and title
thereto and right of possession thereof; and pay all costs and expenses,
including cost of evidence of title and attorneys' fees in a reasonable sum, in
any such action or proceeding in which Beneficiary or Trustee may appear, and in
any suit brought by Beneficiary to foreclose this Deed of Trust; and give
Beneficiary and Trustee prompt notice in writing if any claim is asserted which
does or could affect any of such matters, or if any action or proceeding is
commenced which alleges or relates to any such claim;
3.2.11 Pay at prior to delinquency all taxes, levies, charges and
assessments affecting the Property, including assessments on appurtenant water
stock, imposed by any public or quasi-public authority or utility company
(including without limitation nongovernmental levies or assessments such as
maintenance charges, owner association dues, charges or fees, and levies or
charges resulting from covenants, conditions and restrictions affecting the
Property), which are (or, if not paid, may become) a lien on all or part of the
Property or any interest in it, or which may cause any decrease in the value of
the Property or any part of it;
3.2.12 Pay and promptly discharge, at Trustor's cost and expense, all
liens, encumbrances and charges upon the Trust Estate, or any part thereof or
interest therein whether inferior or superior to this Deed of Trust and keep and
maintain the same free from the claim of all persons supplying labor or
materials that will enter into the construction of any and all buildings now
being erected or that hereafter may be erected on the Property regardless of by
whom such labor or materials may have been contracted, provided, however, that
Trustor shall have the right to contest any such claim or lien so long as
Trustor shall post a bond satisfactory to Beneficiary against such contested
claim or lien. If Trustor shall fail to remove and discharge any such lien,
encumbrance or charge, then, in addition to any other right or remedy of
Beneficiary, Beneficiary may, but shall not be obligated to, discharge the same,
either by paying
6
<PAGE>
the amount claimed to be due, or by procuring the discharge of such lien,
encumbrance or charge by depositing in a court a bond or the amount claimed or
otherwise giving security for such claim, or by procuring such discharge in such
manner as is or may be prescribed by law. Trustor shall, immediately upon demand
therefor by Beneficiary, pay to Beneficiary an amount equal to all costs and
expenses incurred by Beneficiary in connection with the exercise by Beneficiary
of the foregoing right to discharge any such lien, encumbrance or charge,
together with interest thereon from the date of such expenditure at the Default
Rate as hereinafter defined;
3.2.13 Cure within the time specified in any lease or sublease, or
immediately if not specified, any defaults or breaches thereof and do all acts
necessary to insure that any such lease or sublease remain in full force and
effect;
3.2.14 With respect to any property described above which is less
than a fee-simple estate, including but not limited to a leasehold estate:
(a) Trustor shall cure within the time specified in the above-
described lease, or other agreement, or immediately if not specified therein,
any default or breaches thereof and to do all acts necessary to insure the
above-described lease or other agreement remains in full force and effect;
(b) Trustor shall not voluntarily terminate, surrender or
subordinate any leasehold or other estate encumbered hereby and any attempt by
Trustor to do so shall be wholly void and without any force and effect.
4. TRUSTOR FURTHER COVENANTS AND AGREES THAT TO EFFECTUATE THE TERMS AND
CONDITIONS OF THIS DEED OF TRUST:
4.1 Inspections. Beneficiary shall have the right to inspect the Property
with prior written notice.
4.2 Actions of Beneficiary to Preserve Trust Estate. Should Trustor fail
to make any payment or to do any act as herein provided, then Beneficiary or
Trustee, but without obligation so to do and without notice to or demand upon
Trustor and without releasing Trustor from any obligation hereof, may: make or
do the same in such manner and to such extent as either may deem necessary to
protect the security hereof, Beneficiary or Trustee being authorized to (i)
enter upon and take possession of the Property for such purposes; (ii) make
additions, alterations, repairs and improvements to the Trust Estate that
Beneficiary may consider necessary or proper to keep the Trust Estate in good
condition and repair; (iii) appear in and defend any action or proceeding
purporting to affect the security hereof or the rights or powers of Beneficiary
or Trustee; (iv) pay, purchase, contest or compromise any encumbrance, charge or
lien which in the judgment of either appears to be prior or superior hereto; and
(v) in exercising any such powers, pay necessary expenses, employ counsel and
pay reasonable fees therefor. Trustor shall pay immediately and without demand
all sums so expended by Beneficiary or Trustee, with interest from date of
expenditure at the highest amount set forth in any obligation secured hereby
following a default, or if the obligation secured hereby does not specify a rate
of interest, at a rate of interest equal to the Beneficiary's Prime Rate as it
may exist from time to
7
<PAGE>
time plus five percent (5.0%) but in no event less than ten percent (10.0%) per
annum (the "Default Rate").
4.3 Indemnity. Trustor agrees to indemnify and hold Beneficiary, and any
of its successors in interest, harmless from any waste or violations of law,
including but not limited to all Federal, state and local statutes, ordinances
or regulations relating to the environment and hazardous or toxic wastes.
4.4 Condemnation. Trustor hereby absolutely and irrevocably assigns to
Beneficiary, and authorizes the payor to pay to Beneficiary, all awards of
damages and all other compensation payable directly or indirectly in connection
with any condemnation, proposed condemnation or taking for public or private use
of or injury to the Property or any interest therein, and shall notify
Beneficiary immediately upon obtaining knowledge of the institution of any
proceedings therefor. Beneficiary, if it so chooses, may participate in any
action or proceeding relating to any condemnation as herein contemplated. All
moneys paid pursuant to this paragraph shall be applied first toward
reimbursement of all of Beneficiary's costs and expenses of recovering such
moneys, including attorneys' fees, and then in reduction of the principal amount
of the Indebtedness to the extent necessary to render its security unimpaired.
To the extent the Secured Obligations include obligations to reimburse the
Beneficiary for moneys the Beneficiary is committed to advance to Trustor or
third persons in the future, such award of damages shall be held as collateral
for such reimbursement obligation in lieu of the property that is condemned. In
the event of a partial taking in condemnation, the proceeds shall be apportioned
in accord with the provisions of California Code of Civil Procedure Section
1265.225, as it is in effect at the time of the award. An action for inverse
condemnation shall be deemed an action for condemnation under this paragraph.
4.5 Insurance. Trustor shall maintain the insurance described in the
Insurance Requirements Acknowledgment document.
8
<PAGE>
5. ASSIGNMENT OF RENTS. Trustor hereby gives to, confers upon and absolutely
assigns to Beneficiary all of Trustor's right, power and interest, during the
continuance of these Trusts, in and to the rents, issues and profits of the
Property (the "Rents"), reserving unto Trustor the right, prior to the
occurrence of any Event of Default, as defined below, by Trustor, and authority
to collect and retain the Rents as they become due and payable. Upon any such
Event of Default, Beneficiary may at any time without notice, either in person,
by agent, or by a receiver to be appointed by a court, and without regard to the
adequacy of any security for the indebtedness hereby secured, enter upon and
take possession of the Property or any part thereof, in its own name sue for or
otherwise collect the Rents including those past due and unpaid, and apply the
same, less costs and expenses of operation and collection, including reasonable
attorneys' fees, upon any indebtedness secured hereby, and in such order as
Beneficiary may determine, and Trustor hereby appoints Beneficiary its attorney-
in-fact, coupled with an interest, to perform any and all of the foregoing. The
entering upon and taking possession of the Property, the collection of the Rents
and the application thereof as aforesaid, shall not cure or waive any default or
notice of default hereunder or invalidate any act done pursuant to such notice.
The assignment of the Rents contained in this Deed of Trust is absolute and
constitutes a present transfer of Trustor's interest in existing and future
Rents with respect to the Property described in this Deed of Trust, effective
upon the execution and delivery of this Deed of Trust.
6. STATEMENT FEE. Trustor or any other person legally entitled thereto agrees
to pay $60.00 for any statement provided for by law in effect at the date hereof
regarding the obligation secured hereby.
7. SUBSTITUTION OF TRUSTEE. Beneficiary, or any successor in ownership of any
indebtedness secured hereby, may from time to time, by instrument in writing,
substitute a successor or successors to any Trustee named herein or acting
hereunder, which instrument, executed by the Beneficiary and duly acknowledged
and recorded in the office of the recorder of the county or counties where the
Property is situated, shall be conclusive proof of proper substitution of such
successor Trustee or Trustees, who shall, without conveyance from the Trustee
predecessor, succeed to all its title, estate, rights, powers and duties. Said
instrument must contain the name of the original Trustor, Trustee and
Beneficiary hereunder, the book and page where this Deed of Trust is recorded
and the name and address of the new Trustee.
8. RELEASES, EXTENSIONS, MODIFICATIONS AND ADDITIONAL SECURITY. At any time
or from time to time, without liability therefor and without notice, Beneficiary
may: release any person liable for payment of any Secured Obligations; extend
the time for payment or otherwise alter the terms of payment of any Secured
Obligation; accept additional real or personal property of any kind as security
for any Secured Obligation, whether evidenced by deeds of trust, mortgages,
security agreements or any other instruments of security; or alter, substitute
or release any property securing the Secured Obligations. At any time or from
time to time, without liability therefor and without notice, upon written
request of Beneficiary and presentation of this Deed of Trust and the evidence
of the obligation secured hereby for endorsement, and without affecting the
personal liability of any person for payment of the indebtedness secured hereby,
Beneficiary may cause Trustee to: reconvey any part of the Property without any
warranty; consent to the making of any map or plat thereof; join in granting any
easement thereon; or join in any extension agreement or any agreement
subordinating the lien or charge hereof.
9
<PAGE>
9. RECONVEYANCE. Upon written request of Beneficiary stating that all of the
Secured Obligations have been paid and/or performed, Beneficiary's statement
that no further commitment exists to make future advances or extend credit, and
upon surrender of this Deed of Trust and the evidence of the Secured Obligations
to Trustee for cancellation and retention and upon payment of its fees, Trustee
shall reconvey, without warranty, the Property or the portion thereof then held
hereunder. Upon written request of Beneficiary, if less than all sums secured
hereby have been paid, Trustee shall reconvey, without warranty, the portion of
the Property then held hereunder specified by Beneficiary. The recitals in such
reconveyance of any matters or facts shall be conclusive proof of the
truthfulness thereof. Neither Beneficiary nor Trustee shall have any duty to
determine the rights of persons claiming to be rightful grantees of any
reconveyance. The grantee in such reconveyance may be described as "the person
or persons legally entitled thereto." Five (5) years after issuance of such full
reconveyance, Trustee may destroy the evidence of indebtedness and this Deed of
Trust (unless directed in such request to retain them).
10. ACCELERATING TRANSFER, EVENTS OF DEFAULT AND REMEDIES.
10.1 Accelerating Transfer. SHOULD THE TRUSTOR WITHOUT THE PRIOR WRITTEN
CONSENT OF BENEFICIARY, SELL, CONVEY, TRANSFER, DISPOSE OF OR ENCUMBER THE
PROPERTY OR ANY PART THEREOF OR ANY INTEREST THEREIN, ENTER INTO A LEASE OF MORE
THAN 49% OF THE PROPERTY, WHETHER VOLUNTARILY, INVOLUNTARILY OR OTHERWISE, OR
ENTER INTO AN AGREEMENT SO TO DO WITHOUT THE PRIOR WRITTEN CONSENT OF
BENEFICIARY BEING FIRST HAD AND OBTAINED (ANY SUCH EVENT, AN "ACCELERATING
TRANSFER"), THEN BENEFICIARY MAY AT ITS OPTION DECLARE ALL SUMS SECURED HEREBY
IMMEDIATELY DUE AND PAYABLE. THIS PROVISION SHALL APPLY TO EACH AND EVERY SALE,
CONVEYANCE, TRANSFER, DISPOSITION OR ENCUMBRANCE, REGARDLESS OF WHETHER OR NOT
BENEFICIARY HAS CONSENTED TO, OR WAIVED, ITS RIGHT HEREUNDER, WHETHER BY ACTION
OR NON-ACTION, IN CONNECTION WITH ANY PREVIOUS SALE, CONVEYANCE, TRANSFER,
DISPOSITION OR ENCUMBRANCE, WHETHER ONE OR MORE. NOT WITHSTANDING ANYTHING TO
THE CONTRARY CONTAINED HEREIN, IN THE EVENT TRUSTOR PROPOSES TO LEASE ANY
PORTION OF THE PROPERTY, BENEFICIARY SHALL HAVE THE RIGHT TO APPROVE SUCH LEASE
AND PROPOSED LESSEE, IN THE EVENT ANY LESSEE REQUESTS THAT BENEFICIARY PROVIDE
TO LESSEE AN AGREEMENT OF NON-DISTURBANCE.
10.2 Events of Default. Any of the following events shall be deemed an
event of default ("Event(s) of Default") hereunder:
10.2.1 Trustor fails to perform any obligation to pay money on the
Note or this Deed of Trust, or the Supplemental Letter, when and as the same
shall become due and payable, whether at maturity or by acceleration or as part
of a prepayment or otherwise, and does not cure that failure within ten (10)
days after written notice from Beneficiary or Trustee.
10.2.2 [Intentionally Omitted.]
10
<PAGE>
10.2.3 Trustor fails in the due, prompt and complete observance and
performance of any obligation, covenant or agreement contained in this Deed of
Trust, other than one to pay money, and the continuation thereof for a period of
twenty (20) days after written notice thereof from Beneficiary to Trustor (the
"Initial Cure Period"), unless such failure cannot reasonably be cured within
the Initial Cure Period, in which case, Trustor shall have such longer period as
is necessary to cure such failure so long as Trustor is proceeding expeditiously
to cure the same.
10.2.4 The occurrence of a default after applicable notice and cure
periods, under any Secured Obligation.
10.2.5 The occurrence of any Event of Default, as defined therein,
under any of the other Loan Documents.
10.2.6 Default under any agreement to which Trustor is a party, which
agreement relates to the borrowing of money by Trustor from any person and which
borrowing is secured by a lien on the Property, regardless of whether
Beneficiary has consented to such lien, and the indebtedness secured thereby is
declared due and payable prior to the date on which such indebtedness would
otherwise become due and payable.
The enumeration of specific defaults above which are also covenants herein
shall not create any implication that other defaults which are also covenants
but are not specifically enumerated are of lesser dignity.
10.3 Remedies. Upon the occurrence and during the continuance of any Event
of Default, Beneficiary may, at its option and without notice or demand upon
Trustor, exercise any one or more of the following remedies:
10.3.1 Declare all Indebtedness and any other sums secured hereby to
be immediately due and payable and the same shall thereupon become due and
payable without any presentment, demand, protest or notice of any kind;
provided, however, that the remedy set forth in this Paragraph 10.3.1 shall be
subject to Borrower's rights, if any, under this Deed of Trust to cure such
Event of Default in the manner set forth herein.
10.3.2 In person or by agent or by a receiver appointed by a court,
with or without bringing any action or proceeding and without regard to the
adequacy of its security, the solvency of Trustor or the existence of waste,
enter upon, take possession of, manage and operate the Property, or any part
thereof, or any other portion of the Trust Estate, in its own name or in the
name of Trustee, and do any acts that Beneficiary deems necessary or desirable
to preserve the value, marketability or rentability of the Property and the
balance of the Trust Estate, or part thereof or interest therein, to increase
the income therefrom or to protect the security thereof, including without
limitation the right to do any of the following: make, modify, enforce, cancel
or accept surrender of any Leases now in effect or hereafter in effect on the
Property or any part thereof; remove and evict any lessees; increase or decrease
rents; decorate, clean and repair; incur and pay reasonable management,
brokerage and attorneys' fees; maintain a reserve for replacement; and terminate
the license granted to Trustor to collect the Rents, and, with or without taking
possession of the Property, in Beneficiary's own name, demand, collect, receive,
11
<PAGE>
sue for, attach and levy the Rents, including those past due and unpaid, and
apply the same, less costs and expenses of operation and collection including
attorneys' fees, upon any Indebtedness, all in such order as Beneficiary may
determine. The entering upon and taking possession of the Property, the
collection of such Rents and the application thereof as aforesaid shall not cure
or waive any default or notice of default hereunder or invalidate any act done
in response to such default. The enforcement of such right or remedy by
Beneficiary, once exercised, shall continue for so long as Beneficiary shall
elect notwithstanding that the collection and applications of the Rents may have
cured for the time being the original default, and, notwithstanding the
continuance in possession of the Property or the collection, receipt and
application of Rents. Trustee or Beneficiary shall be entitled to exercise
every right provided for in any of the Loan Documents or by law upon occurrence
of any Event of Default, including the right to exercise the power of sale
contained herein. Any of the actions referred to in this Paragraph 10.3.2 may
be taken by Beneficiary, either in person or by agent, with or without bringing
any action or proceeding, or by receiver appointed by a court, and any such
action may also be taken irrespective of whether any notice of default or
election to sell has been given hereunder. Further, Beneficiary, at the expense
of Trustor, either by purchase, repair, or construction, may from time to time
maintain and restore the Property, or any part thereof, and Complete
construction of any Improvements uncompleted as of the date thereof and in the
course of such completion may make such changes in the contemplated Improvements
as Beneficiary may deem desirable and may insure the same.
10.3.3 Commence an action to foreclose this Deed of Trust as a
mortgage, appoint a receiver, or specifically enforce any of the covenants
hereof.
10.3.4 Deliver to Trustee a written declaration of default and demand
for sale, and a written notice of default and election to cause Trustor's
interest in the Trust Estate to be sold, which notice Trustee or Beneficiary
shall cause to be duly filed for record in the Official Records of the county in
which the Property is located.
10.3.5 Proceed as to the real property in accordance with
Beneficiary's rights and remedies in respect of the Property.
10.3.6 Exercise any or all of the other rights and remedies provided
for herein, in any of the Loan Documents or other document or agreement now or
hereafter securing all or any portion of the Secured Obligations, or available
under law or in equity.
10.4 Non-Judicial Foreclosure. Should Beneficiary elect to foreclose by
exercise of the power of sale herein contained, Beneficiary shall notify Trustee
and shall deposit with Trustee this Deed of Trust and the Note and such receipts
and evidence of expenditures made and secured hereby as Trustee may require. To
the extent the obligation secured hereby arises from a commitment of Beneficiary
to make future advances either to Trustor or a third party or extend credit
subsequent to the recordation of a Notice of Default hereunder, the sums secured
hereby shall also include the amount of such commitment to make future advances
or extend credit, and subject to acceleration as provided in the previous
paragraph. The Trustee shall pay such amount at such time as it pays all other
sums secured hereby and the Beneficiary shall hold same as additional collateral
for the obligation secured hereby, at such interest as is available to
Beneficiary's customers in an insured deposit account with no restrictions on
withdrawal.
12
<PAGE>
10.4.1 Upon receipt of such notice from Beneficiary, Trustee shall
cause to be recorded, mailed or delivered to Trustor such notice of default and
election to sell as is then required by law and by this Deed of Trust. Trustee
shall, without demand on Trustor, after lapse of such time as may then be
required by law and after recordation of such notice of default and after notice
of sale has been given as required by law, sell the Trust Estate at time and
place of sale fixed by it in such notice of sale, either as a whole, or in
separate lots or parcels, and in such order as it may determine, at public
auction, to the highest bidder for cash in lawful money of the United States
payable at the time of sale. If the Property consists of more than one lot or
parcel, the lots or parcels may be sold separately, together or in any
combination, and in such order as Beneficiary determines, at the sole discretion
of the Beneficiary. Trustor waives the right to direct the order in which the
Property may be sold when it consists of more than one lot or parcel. Trustee
shall deliver to such purchaser or purchasers thereof its good and sufficient
deed or deeds conveying the property so sold, but without any covenant or
warranty, express or implied. The recitals in such deed of any matters or facts
shall be conclusive proof of the truthfulness thereof. Any person, including
without limitation Trustor, Trustee or Beneficiary, may purchase at such sale
and Trustor hereby covenants to warrant and defend the title of such purchaser
or purchasers. If allowed by law, Beneficiary, if it is the purchaser, may turn
in the Note at the amount owing thereon toward payment of the purchase price (or
for endorsement of the purchase price as a payment on the Note if the amount
owing thereon exceeds the purchase price). Trustor hereby expressly waives any
right of redemption after sale that Trustor may have at the time of sale or that
may apply to the sale.
10.4.2 After deducting all costs, fees and expenses of Trustee and of
this Trust, including cost of evidence of title in connection with sale, Trustee
shall apply the proceeds of sale to payment of: all sums expended under the
terms hereof, not then repaid, with accrued interest at the amount allowed by
law in effect at the date hereof; all other sums then secured hereby; and the
remainder, if any, to the person or persons legally entitled thereto.
10.4.3 Trustee may postpone sale of all or any portion of the Trust
Estate by public announcement at such time and place of sale, and from time to
time thereafter may postpone such sale by public announcement at the time fixed
by the preceding postponement or by subsequently noticed sale, and without
further notice make such sale at the time fixed by the last postponement; or
Trustee may, in its discretion, give a new notice of sale. Beneficiary may
rescind any such notice of default at any time before Trustee's sale by
executing a notice of rescission and recording the same. The recordation of
such notice shall constitute a cancellation of any prior declaration of default
and demand for sale and of any acceleration of maturity of the Indebtedness
effected by any prior declaration or notice of default. The exercise by
Beneficiary of the right of rescission shall not constitute a waiver of any
default and demand for sale, or notices of default and of election to cause the
Property to be sold, nor otherwise affect the Note or this Deed of Trust, or any
of the rights, obligations or remedies of Beneficiary or Trustee hereunder.
11. APPOINTMENT OF RECEIVER. If an Event of Default shall have occurred and be
continuing, Beneficiary, as a matter of right and without notice to Trustor or
anyone claiming under Trustor, and without regard to the then value of the Trust
Estate or the interest of Trustor therein, shall have the right to apply to any
court having jurisdiction to appoint a receiver or receivers of the Trust
Estate, and Trustor hereby irrevocably consents to such appointment and
13
<PAGE>
waives notice of any application therefor. Any such receiver or receivers shall
have all the usual powers and duties of receivers in like or similar cases and
all the powers and duties of Beneficiary in case of entry as provided in
Paragraph 10.3.2 and shall continue as such and exercise all such powers until
the later of (i) the date of confirmation of sale of the Trust Estate; (ii) the
disbursement of all proceeds of the Trust Estate collected by such receiver and
the payment of all expenses incurred in connection therewith; or (iii) the
termination of such receivership with the consent of Beneficiary or pursuant to
an order by a court of competent jurisdiction.
12. REMEDIES NOT EXCLUSIVE. Trustee and Beneficiary, and each of them, shall
be entitled to enforce payment and performance of any of the Secured Obligations
and to exercise all rights and powers under this Deed of Trust or under any of
the other Loan Documents or other agreement or any laws now or hereafter in
force, notwithstanding that some or all of the Indebtedness and Secured
Obligations may now or hereafter be otherwise secured, whether by mortgage, deed
of trust, pledge, lien, assignment or otherwise. Neither the acceptance of this
Deed of Trust nor its enforcement, whether by court action or pursuant to the
power of sale or other powers herein contained, shall prejudice or in any manner
affect Trustee's or Beneficiary's right to realize upon or enforce any other
security now or hereafter held by Trustee or Beneficiary, it being agreed that
Trustee and Beneficiary, and each of them, shall be entitled to enforce this
Deed of Trust and any other security now or hereafter held by Beneficiary or
Trustee in such order and manner as they or either of them may in their absolute
discretion determine. No remedy herein conferred upon or reserved to Trustee or
Beneficiary is intended to be exclusive of any other remedy herein or by law
provided or permitted, but each shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute. Every power or remedy given by any of the Loan Documents
to Trustee or Beneficiary, or to which either of them may be otherwise entitled,
may be exercised concurrently or independently, from time to time and as often
as may be deemed expedient by Trustee or Beneficiary, and either of them may
pursue inconsistent remedies.
13. [Intentionally Omitted.]
14. MISCELLANEOUS.
14.1 Governing Law; Severability. This Deed of Trust shall be governed by
the laws of the State of California. In the event that any provision or clause
of any of the Loan Documents conflicts with applicable laws, such conflicts
shall not affect other provisions of such Loan Documents which can be given
effect without the conflicting provision, and to this end, the provisions of the
Loan Documents are declared to be severable.
14.2 Amendment; No Implied Waiver. This Deed of Trust cannot be modified,
waived, discharged or terminated orally, but only by a written instrument signed
by the party against whom enforcement of the modification, waiver, discharge or
termination is asserted. No waiver by Beneficiary of any default or breach by
Trustor hereunder shall be implied from any omission by Beneficiary to take
action on account of such default if such default persists or is repeated, and
no express waiver shall affect any default other than the default identified in
the waiver and such waiver shall be operative only for the time and to the
extent therein stated. Waivers of any covenant, term or condition contained
herein shall not be construed as a waiver
14
<PAGE>
of any subsequent breach of the same covenant, term or condition. The consent or
approval by Beneficiary to or of any act by Trustor requiring further consent or
approval shall not be deemed to waive or render unnecessary the consent or
approval to or of any subsequent similar act.
14.3 Notices. All written notices or demands of any kind that any party
hereto may be required or may desire to serve on any other party hereto in
connection with this Agreement shall be served (as an alternative to personal
service) by registered or certified mail, recognized overnight courier service
or facsimile transmission. Any such notice or demand so to be served by
registered or certified mail, recognized overnight courier service or facsimile
transmission shall be delivered with all applicable delivery charges thereon
fully prepaid and, if the party so to be served be Trustor, addressed to Trustor
as follows:
Daily Journal Corporation
915 E. First Street
Los Angeles, CA 90012
Attn: Mr. Gerald L. Salzman, President
Fax No.: (213) 330-2666
With a copy thereof to:
Munger, Tolles & Olson
355 South Grand Avenue
Los Angeles, CA 90071
Attn: Ms. Ruth E. Fisher, Esq.
Fax No.: (213) 687-3702
and, if the party so to be served be Beneficiary, addressed to Beneficiary as
follows:
City National Bank
9701 Wilshire Boulevard, Suite 600
Beverly Hills, CA 90212
Attention: Mr. Douglas C. Zimmerman,
Vice President
Fax No.: (310) 888-6493
with a copy thereof to
City National Bank
400 N. Roxbury Drive
Beverly Hills, CA 90210
Attention: General Counsel
Fax No.: (310) 888-6232
Service of any such notice or demand so made by mail, recognized overnight
courier or facsimile transmission shall be deemed complete on the date of actual
delivery as shown by the addressee's registry or certification receipt or
"answer back confirmation," as applicable, or at
15
<PAGE>
the expiration of the third business day after the date of dispatch, whichever
is earlier in time. Either party hereto may from time to time, by notice in
writing served upon the other as aforesaid, designate a different mailing
address to which or a different person to whose attention all such notices or
demands are thereafter to be addressed.
14.4 Successors and Assigns. This Deed of Trust applies to, inures to the
benefit of, and binds all parties hereto, their heirs, legatees, devisees,
administrators, executors, successors and assigns. The term Beneficiary shall
mean the owner and holder, including pledgees, of the evidence of the obligation
secured hereby, whether or not named as Beneficiary herein. In this Deed of
Trust, whenever the context so requires, the masculine gender includes the
feminine and/or neuter, and the singular number includes the plural. By
accepting payment of any sum secured hereby after its due date, Beneficiary does
not waive its right either to require prompt payment when due of all other sums
so secured or to declare default for failure so to pay.
14.5 Trustee's Acceptance. Trustee accepts this Trust when this Deed of
Trust, duly executed and acknowledged, is made a public record as provided by
law, and by its acceptance hereof, Trustee covenants faithfully to perform and
fulfill the trusts herein created, being liable, however, only for willful
negligence or misconduct, and Trustee hereby waives any statutory fee and agrees
to accept reasonable compensation, in lieu thereof, for any services rendered by
it in accordance with the terms hereof. Trustee is not obligated to notify any
party hereto of pending sale under any other deed of trust or of any action or
proceeding in which Trustor, Beneficiary or Trustee shall be a party unless
brought by Trustee.
14.6 Subrogation. To the extent that proceeds of the Note are used,
directly or indirectly, to pay off, satisfy or discharge, in whole or in part,
any outstanding lien, charge or prior encumbrance against the Trust Estate or
any part thereof, then as additional security hereunder Beneficiary shall be
subrogated to any and all rights, superior titles and liens owned or claimed by
any owner or holder of such outstanding liens, charges and prior encumbrances,
however remote and irrespective of whether said liens, charges or encumbrances
have been released of record by the holder thereof upon payment.
14.7 No Merger. If both the lessor's and lessee's estates under any Lease
or any portion thereof that constitutes a part of the Trust Estate shall at any
time become vested in one owner, this Deed of Trust and the lien created hereby
shall not be destroyed or terminated by application of the doctrine of merger,
and, in such event, Beneficiary shall continue to have and enjoy all of the
rights and privileges of Beneficiary as to the separate estates. In addition,
upon the foreclosure of the lien created by this Deed of Trust on the Trust
Estate pursuant to the provisions hereof, any leases or subleases then existing
and created by Trustor shall not be destroyed or terminated by application of
the law of merger or as a matter of law as a result of such foreclosure unless
Beneficiary or any purchaser at any such foreclosure sale shall so elect. No
act by or on behalf of Beneficiary or any such purchaser shall constitute a
termination of any lease or sublease unless Beneficiary or such purchaser shall
give written notice to such tenant or subtenant.
14.8 Certain Rights of Beneficiary. Without affecting the liability of
Trustor or of any other person who is or shall become bound by the terms of this
Deed of Trust or who is or shall become liable for the performance of any
obligation secured hereby, Beneficiary may, in
16
<PAGE>
such manner, upon such terms and at such times as it deems best and without
notice or demand, release any party now or hereafter liable for the performance
of any such obligation, extend the time for such performance, alter any of the
terms of any such obligation; or accept additional security therefor, and alter,
substitute or release any property securing such performance. No exercise or
non-exercise by Beneficiary of any of its rights under this Deed of Trust, no
dealing by Beneficiary with any person, firm or corporation and no change,
impairment, loss or suspension of any right or remedy of Beneficiary shall in
any way affect any of the obligations of Trustor hereunder or any security
furnished by Trustor, or give Trustor any recourse against Beneficiary.
14.9 Headings. Headings are for convenience only and are not intended as a
limitation on the content of the paragraph following or as an aid to the
construction thereof.
14.10 Counterparts. This Deed of Trust may be executed simultaneously in
one or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
14.11 [Intentionally Omitted.]
14.12 [Intentionally Omitted.]
14.13 Copy of Notice of Default. The undersigned Trustor requests that a
copy of any Notice of Default and of any Notice of Sale hereunder be mailed to
him at his address hereinbefore set forth.
IN WITNESS WHEREOF, Trustor has caused this Deed of Trust to be executed as
of the day and year first written above.
DAILY JOURNAL CORPORATION,
a South Carolina corporation
By: /s/ Gerald L. Salzman
--------------------------
Gerald L. Salzman, President
(ALL SIGNATURES MUST BE ACKNOWLEDGED BY A NOTARY PUBLIC)
17
<PAGE>
STATE OF CALIFORNIA
COUNTY OF SS.
On this 29th day of January, 2001 before me, Debbie Ann Estrella, a Notary
Public in and for the State of California, personally appeared Gerald L.
Salzman, personally known to me to be the person whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the person, or
the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature /s/ Debbie Ann Estrella
-------------------------------
My commission expires January 9, 2003 [SEAL]
-------------------------
18