HomeMy WebLinkAbout05/24/1976 Item #H-2j?v
CITY OF NEWPORT BEACH
Office of
CITY ATTORNEY
To:' The Mayor and Members
Of The City Council
From: City Attorney
Subject: Balboa Bay Club - Refinancing
May 24, 1976
Pursuant to the terms of the lease agreement between the City
of Newport Beach and the Balboa Bay Club, the Balboa Bay Club
cannot assign its leasehold interest without the consent of
the City Council. Over the past ten years, the Balboa Bay
Club has obtained various loans by using the leasehold estate
as security for the purpose of paying off existing debts and
in order to expand the Club facilities. The loans wer_e.made
with the prior consent of the City Council.
A summary of the more recent refinancing transactions are as
follows:
1. In December, 1971, the City Council consented to
the assignment of the Balboa Bay Club leasehold estate to
secure a loan from the predecessors in interest to Independence
Mortgage Trust (IMT) in an amount not to exceed $13,000,000.
2. In February, 1972, pursuant to this consent, a loan
of $6,650,000 was made by IMT to the BBC but only $3,054,000
was actually funded, the difference being held in reserve in
order to pay off any existing encumbrances should it become
necessary.
3. In December, 1974, the City Council consented to the
transfer of the lender's interest ($3,054,000) from IMT to
Citinational Development Trust. This transaction was never
i f
The Mayor and Members
Of The City Council
Page Two - May 24, 1976
Balboa Bay Club - Refinancing
completed and the terms of the original loan with IMT were
subsequently renegotiated.
In order to keep the record straight, the Bay Club is requesting
the Council to again consent to the assignment of the leasehold
estate to IMT for the original $3,054,000 loan, plus interest
due. This consent is more in the nature of a.housekeeping
action and does not result in a new loan transaction but merely
a technical rewriting and modification of the existing loan
and its security agreements.
An appropriate consent resolution has been prepared and a repre-
sentative from the Balboa Bay Club will be present at the
Council meeting should you have any questions concerning this
matter.
DDO /bc
cc: City Manager
City Clerk
DENNIS D. O'NEIL
City Attorney
June 1, 1976
Thomas J. O'Keefe, Incorporated
2323 N. Broadway, Suite 400
P. 0. Baas 6099
Santa Ana, CA 92706
Res Balboa Bay Club
At its regular meeting on May 24, the City Council of the
City of Newport Beach adopted Resolution No. 8762 approving
the assignment of an interest in the Balboa Bay Club leasehold
estate by supplemental Deed of Trust to Title Insurance and
Trust Company, as trustee for the benefit of Independence
4ortgage Trust (successor in interest to USP investors).
A copy of Resolution No. 8782 is enclosed.
Also enclosed is the Consent.to Assignment, which has been
fully executed by the City, for further processing and for
recordation. After the document has been recorded, please
return a copy showing the recording information to this
office for our filea. Thank you.
Doris George
City Clerk
dg
Encl.
act City Attorney
0
LAW OFFICES - - - -
THOIiAS J. O•KEEFE, INCORPORATED sO1rE ego
2323 NORTH BROADWAY
JOHN R. . -
THOMAS SURTITYSK AL N E P.O. BOX 6099
THOMAS G. TYSK SANTA ANA, CALIFO
HOWARD M. LARSEN - TELEPHONE 1 3 ' 1
May 18, 19
Mr. Dennis O'Neil S �' j�yr�
City Attorney �q %jri,�i;F
City of Newport Beach b
Newport Beach, California 92660 . po q r�F19s�
Dear Dennis:
1
I have enclosed herewith .a copy. of the.Consent to As
signment of Leasehold Estate by Deed of Trust which'International
Bay Clubs, Incorporated is requesting be signed on behalf of the
'City in favor of Independence Mortgage Trust, the successor in
interest to USF Investors. For your convenience, I have also.en-
closed a copy of a similar Consent to Assignment to Leasehold Es-
tate by Deed of Trust which the City .Council approved in November
of 1974 and which was.then executed on behalf of the City for the
.benefit of Citinational Development Trust.
The Citinational Development Trust Consent was to 'facil-
itate the transfer of the loan in question from IMT to Citinational.
That transaction, however, was never completed and.a new loan re-
vision and extension was negotiated with IMT.
For your convenience I have red -lined the changes from
the earlier document to.the one which we now propose.. The . prin -
cipal difference between the two is the additional note :reflecting
interest due on the original.obligation.
This is not a new loan transaction but merely a. technical.'
rewriting and modification of an existing loan and its security
agreements.
If you have any further questions regarding the enclosures;;
please let me know. I will furnish you with copies of the exhibits'
as soon as they are in their final form and furnished to me: Thank
you for your.cooperation in this regard.
i
I
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
Independence Mortgage Trust
c/o Provident Realty
P.O. Box 12098
San Diego, California 92112
Attn: Thomas L. LaHay
CONSENT TO ASSIGNMENT OF
LEASEHOLD ESTATE BY DEED OF TRUST
THIS CONSENT to the Assignment of the Leasehold
Estate hereinafter described is executed by the CITY OF NEWPORT
BEACH, a municipal corporation on behalf 'of INTERNATIONAL BAY
CLUBS, INCORPORATED, a California corporation, successor in
interest to Balboa Bay Club, Inc., .a corporation.formerly
Wrather Investment, Inc., a corporation, for the benefit of
INDEPENDENCE MORTGAGE TRUST, an unincorporated Georgia business
trust („IMV)
Reference is hereby made to the following:
i
1. That certain lease dated March 24, 1948 as
amended from time to time, including, April 10, 1950, September 25,
1952, and March 28, 1960, wherein the CITY OF NEWPORT BEACH, a
municipal corporation, is the lessor (the "Lessor "), and
BALBOA BAY CLUB, INC., a California.corporation, is the lessee
(the "Lessee ") covering and affecting certain real property
situated in the City of Newport Beach, County of Orange,.'State
of California, which property is more particularly described
in said lease, as amended (said lease, as amended, is hereinafter
referred to as the "Main Lease ").
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I
2. That certain Consent to Assignment of Lease-
hold Estate by Deeds of Trust and /or by Sale Lease- Back.datsd
December 15, 1971 executed by the CITY OF NEIR ORT BEACH on
behalf of the Lessee in connection with the sale or hypothe-
cation of the leasehold estate created by the Main Lease by
deeds of trust and /or sale lease -back by U.S. FINANCIAL
CORPORATION or a subsidiary or affiliate thereof or such other
corporation, persons or entities as may be subsequently approved
by the City of Newport Beach-as. security for payment of an
indebtedness not to exceed $13,200,000,.which document was
recorded March 17, 1972 in Book 10040, page 639 of the Official
Records in the office of the County Recorder of Orange County,
State of California (herein called the "Original Consent ").
3. That certain Deed of Trust dated February 25,
1.972 between Lessee, as Trustor, USF INVESTMENT MANAGERS, INC.,
a Delaware corporation, as Trustee; and USF INVESTORS, a
Georgia Business Trust,.as Beneficiary recorded March-16,
1972 in Book 10040, page 629 of the Official Records in the
office of the County Recorder of Orange County,.State of
California (herein called the "Original Deed of Trust ").
INTERNATIONAL BAY CLUBS, INCORPORATED, proposes to
hypothecate additional portions of the leasehold estate created
by the Main Lease, by a deed of trust which will be supplemental
to the Original Deed of Trust (hereinafter referred to as the
"Supplemental Deed of Trust ") which encompasses the entire
leasehold estate as well as portions thereof as more particu-
larly described in that certain Supplemental Deed of Trust to
be given by International Bay Clubs, Inc., a California corpor-
ation, as Trustor, in favor of Title Instirance and Trust Company,
a California corporation as successor Trustee to USF Investment
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Managers, Inc. pursuant to a Substitution of Trustee dated
August 5, 1975, as Trustee and IMT, and its successors and
assigns, as Beneficiary, to secure the payment of a Renewal,
Extension and Modification Note in the principal sum of
$3,054,662.94 (the. "Renewal Note ") and a Promissory Note
Secured by Deed of Trust in the principal sum of $226,692.84
(the "Additional Rote ") and certain other notes and obligations
therein described. An unexecuted copy of such Supplemental.
Deed of Trust is attached to this Consent and marked.Exhibit
"A ", and by this reference incorporated in this Consent for
identification.
FOR GOOD AND VALUABLE CONSIDERATI
expressly acknowledged, the CITY OF NEWPORT
hereby consents to the Supplemental Deed of
extends its consent to the Original Deed of
in the Original Consent, upon the condition
given and accepted subject to the following
conditions, to wit:
)N, which is hereby
BEACH, as Lessor,
Trust, and thereby
Trust as contained
that the same is
covenants and
(a) That except as herein otherwise provided,
the Original Deed of Trust as modified, amended and supple-
mented by the Supplemental Deed of Trust and all rights now
or hereafter acquired thereunder, are, and shall be subject .
to each and all of the covenants, conditions and restrictions
,.,set forth in the Main Lease, and to all rights and interests
of the Lessor therein, none of which are or shall be waived
by this Consent;
(b) That should there be a conflict between
the provisions of the Main Lease and the; provisions of the
Original Deed of Trust as modified, amended and supplemented
by the Supplemental Deed of Trust, the Main Lease shall control;
(c) That if the leasehold estate.of the Lessee
which is the subject of the Original Deed of Trust as modified,
amended and supplemented by the Supplemental Deed of Trust shall
be foreclosed or otherwise acquired thereunder, the Main Lease
shall, at the option of the holder of the Supplemental Deed of
Trust, upon written notice to Lessor, automatically be deemed
to be two separate and distinct leases (the "A" Lease "). and (the
"B" Lease ") in lieu of and instead of the single Main Lease.
All of the respective provisions of the A Lease and the B Lease
shall be identical with. the provisions of the Main Lease,
except that (i) the demised premises covered by the A Lease
shall, for all purposes of the A Lease (including.the percentage
.rental provisions thereof), be deemed to be only the property
described in the Original Deed of Trust, on Exhibit "A" thereto,
as modified, amended and supplemented by the Supplemental Deed
of trust ("Parcel A "), (ii) the demised premises covered by the
B Lease shall, for all purposes of the B Lease (including-the
percentage rental provisions thereof), be deemed-to be the
remaining property (exclusive of Parcel A) described in.the
Main Lease ("Parcel B "), (iii) the paragraphs. of the A Lease
entitled "Minimum Rental" and "Percentage Rental" shall be
deemed to be in the form attached to this Consent and marked
Exhibit "B ", and by this reference incorporated in this Consent.
.for.identification, and (iv) the.paragraphs.of B Lease entitled
"Minimum Rental" and "Percentage Rental" shall be deemed to be
in the form attached to this Consent and marked Exhibit "C ",
and by this reference incorporated in this.Consent for
identification;
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(d) That if the Leasehold Estate of the Lessee
which is described in the Original Deed of Trust as modified,
amended and supplemented by the Supplemental Deed of Trust shall
be foreclosed or otherwise acquired under the Supplemental Deed
of Trust, the transferee thereof shall thereupon and thereby
assume the performance of and be bound by each and all of the
covenants, conditions and obligations provided in the A Lease.,
to be performed by the Lessee thereunder, and the Leasehold
Estate which is described as Parcel B shall thereupon and
thereby be deemed to be the Leasehold Estate which is the
subject of the B Lease. That if the Leasehold Estate of the
Lessee which is the subject of the Original Deed of Trust as
modified, amended and supplemented by the Supplemental Deed
of Trust shall'be foreclosed under such Deed of Trust or other -
wise acquired as 2 parcels, Parcel A and Parcel B and the
holder of such Deed of.Trust gives Lessor the notice provided
for in subparagraph (g') below, (i) the transferee of Parcel A
shall thereupon and thereby assume the performance of and shall
be bound by each and all of the covenants, conditions and
i
obligations provided in the A tease to be performed and
observed by the Lessee thereunder, and (iij the transferee
of Parcel B shall thereupon and thereby assume the.performance
of and shall be bound by each and all of the covenants, con-
ditions and obligations provided in the B Lease to be performed
by the Lessee thereunder.
(e) That if the Leasehold Estate of the Lessee
which is the subject of the Original Deed of Trust as amended,
modified and supplemented by the Supplemental Deed of Trust,
shall be foreclosed under such. Deed of Trust or otherwise.acquired
as one parcel, the transferee thereof shall thereupon and thereby
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assume the performance of and shall be bound by each and a11.
of the covenants, conditions and obligations provided in the
Main Lease to be performed and observed by the Lessee thereunder;
(f) That nothing in this Consent shall be deemed
to prohibit the assignment by the holder of the Renewal Note
and /or the Additional Note secured by the Original Deed of Trust
as modified, amended and supplemented by the Supplemental Deed
of Trust, together with the Supplemental Deed of Trust, without
first obtaining the prior.consent of the Lessor;
(g) That the Lessor agrees that it will.not
terminate the Main Lease because of any default or breach there-
under on the part of "the Lessee if the holder of the Original
Deed of Trust as amended, modified and supplemented by the
Supplemental Deed of Trust, within thirty (30) days after the
service of written notice from the Lessor of its intention
to terminate the Main Lease for such default or breach, shall
either cure such default or breach, if the same can be cured
by the payment of money, or if otherwise, shall undertake in
writing with and for the benefit of the Lessor, to keep and
perform all of the covenants and conditions by the Main Lease
provided therein to be kept and performed by the Lessee,
until such time as the Leasehold Estate of the Lessee shall
be sold upon foreclosure pursuant to the Original Deed of
Trust as amended, modified and. supplemented by the Supplemental
Deed of Trust,.or shall be released or.reconveyed.thereunder in
either of which events the holder shall thereupon be deemed
released of all liability pursuant to this subparagraph (g);
provided, however, that if the holder of the Original Deed
of Trust as amended, modified and supplemented by the Supple-
mental Deed of Trust shall fail or refuse to comply with any
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and all of the conditions of this subparagraph (g), then and
thereupon the Lessor_ shall be released from the covenant of
forebearanec herein contained. Any notice provided for in
this subparagraph (g) shall be delivered or directed to the
holder of the Original Deed of Trust as amended, modified
and supplemented by the Supplemental Deed of Trust at its
address as last shc��a on the records of the Lessor;
(h) That the Lessor assumes no liability or
responsibility for the order of priority of the Original Deed
of Trust as amended, modified and supplemented by the Supple -
mezital Deed of Trust or the relation of it to any other deed
of trust affecting said Leasehold Estate;
(i) That upon and immediately after the re-
cording of the Original Deed of Trust as amended, modified
and supplemented by the Supplemental Deed of Trust the Lessee,
at its own expense, shall cause to be recorded in the office
of the Recordet of said Orange County a written request
executed and acknowledged by the Lessor for a copy of any
notice of default and of any notice of sale under the Supple-
mental Deed of Trust as provided by the statutes of the State
of California relating thereto. Concurrently with the execution
of this Consent the Lessee shall furnish to the Lessor a .
complete copy of the Original Deed of Trust as amended, modified
and supplemented by the Supplemental Deed of Trust and the
promissory note.secured thereby, together with the name and
address of the holder thereof.
That this form of Consent shall be recorded
contemporaneously with the recordation of the Supplemental Deed
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of Trust herein referred to and to which this Consent relates,
in which .event the copy of the Original Deed of Trust as amended,
modified and supplemented by the Supplemental Deed of Trust
attached hereto shall not be recorded.
This Consent is conditioned upon (i) the approval of
the City Attorney of Newport Beach as to form and content and
(U) the execution by the Lessee and 111T, the Beneficiary of
the Supplemental Deed of Trust, of the Acceptances and Agree-
merits attached hereto and made a part hereof.
By the execution of this Consent, and by the execution
of the several Acceptances and Agreements, the Lessor, the
Lessee, and IMT hereby acknowledge that (i.) the term "sub - rentals"
appearing in the first sentence of the paragraph of the Main
Lease entitled "Percentage Rental" does not include rental
payments received by the Lessee under any lease of an apartment
located on the demisted premises if such lease requires the
lessee thereunder to use said apartment primarily for resi-
dential purposes or.if the lessee does in fact use said
apartment primarily for residential purposes, and (ii.) such
rental payments shall be deemed to be included in "gross
operating revenues "as that term is used in the Main Lease.
All prior consents of Lessor, including the Original
Consent concerning the Main Lease, shall be deemed unmodified
and unaffected by this Consent.
Dated: % _, 1476.
CITY OF NEWPORT BEACH
APPROVED AS TO FOR_M:' By
City Attorney By
r]
ACCEPTANCE AND AGREEMENT
The undersigned INDEPENDENCE MORTGAGE TRUST, an
unincorporated Georgia business trust, as the beneficiary
named in the foregoing Consent, and in the Supplemental
Deed of Trust therein mentioned, in its own behalf and for
its successors in interest, and with and for the benefit of
the Lessor named in said Consent, does hereby approve, accept
and agree to be bound by each and all of the conditions,
covenants and acknowledgements set forth in said Consent
subject to the condition that in executing this Acceptance .
and Agreement the trustees, officers or both of the undersigned
do-so"in their capacities as such trustees or officers; and it
is agreed that for payment of any claim or the performance
of any obligation hereunder, recourse should.be had solely to
the assets and property of IMT, and no security holder, trustee
or officer of IMT shall be personally liable hereunder.
Dated at California, this
day. of 1976.
STATE OF CALIFORNIA
C07JNTY OF
INDEPENDENCE MORTGAGE TRUST
f
By
M
SS:
i
On this day of 1976, before me, the
a
undersigned, a Not rFy public i-nanT7or said County, and State,
personally appeared and
known to me to be the
and respectively, of the corporation
that executed the within instrument, and known to me to be
the persons who executed the within instrument on behalf of
the corporation "therein named, and acknowledged to me that
such corporation executed the within instrument pursuant to
its by -laws or a resolution of its Board of Directors.
WITNESS my hand and.official seal.
Notary Public in an or sai
County and State
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ACCEPTANCE AND AC IT- .EKENT
The undersigned INTERNATIONAL BAY CLUBS, INCORPORATED,
a California corporation, successor in interest to Balboa Bay
Club, Inc., a corporation formerly Wrather Investment, Inc.,
a corporation, as the Lessee and Assignor named in the fore-
going Consent, and as the Trustor under the Original Deed of
Trust and the Supplemental Deed of Trust therein mentioned,
on its own behalf, and with and for the benefit of the Lessor
named in said Consent does hereby approve, accept and agree
to be bound by each and all of_the conditions, covenants and
acknowledgements set forth in the Consent.
Executed at Newport Beach, California, this_
_K- ....._ .. -...._ day of 1976.
INTERNATIONAL BAM CLUBS, INCORPORATED
STATE Or CALIFORNIA }
} SS.
COUNTY OF }
On this day of 1976, before me,
undersigned, a Notar -y- public in--a—na for said County and State,
personally appeared and
own to me to be the
and respectively, of the corporation
that executed the within instrument, and _known to me to be
the persons who executed the within instrument on behalf of
the corporation therein named, and acknowledged to me that
such corporation executed the within instrument )ursuant to
its by -laws or a resolution of its Board of Directors.
FATNESS my hand and official seal.
Notary ub is in an or sai
County and State
the
STATE OF CALIFORNIA
SS.
COUNTY OF ORANGE
On this 27th day of May , 1976, before me,
the undersigned, a a ary Publl —c Tn an or said County and
State, personally appeared Howard Rogers
and noris George known to me to be the
Mayor and CJ-ty Clerk, respective y, of the CITY OF NEti,TPORT
BEACH, the municipal corporation that executed the within
instrument, knovyn to me to be the persons who executed the
within instrument on behalf of said municipal corporation,
and acknowledged to me. that such municipal corporation
executed the same pursuant to a resolution of its City
Council.
WITNESS my hand and official seal.
c,
F c
f
Notary Public
a
RW 202 REV; 7.72 •
RECORDING REQUESTED BY
SOUTHERN CALIFORNIA EDISON COMPANY
WHEN RECORDED MAIL TO
SOUTHERN CALIFORNIA EDISON COMPANY
S.B..
WORK ORDER
6033
2 -2040
CITy OF QoRT $EACH j SPACE ABOVE THIS LINE FOR RECORDER'S. USE
GF2ATJT 0 SEMENT fCORPORATION) 1 UOCUHFSITA®Y TMSFFQ TAX $ None (no consideration)
l 90. CALIF. EDISON CO.
'SIGNATURE OF DECLARANT OR AGENT DETERMINING TAX. FIRM NAME
CITY OF NEWPORT BEACH, a municipal corporation
°
................. - ......--• -- ...... -- ........ --- -- --....••----••----....- .............................. ............__....._......._... - --
NN41W44 " (hereinafter referred to as Grantor "), hereby grants to SOUTHERN CALIFORNIA EDISON
COMPANY, a corporation, their successors and assigns (hereinafter referred to as "Grantees "),
�, an easement and right of way to construct, use, maintain, operate, alter, add to, repair, replace,,
reconstruct, inspect and remove at any time and from time to time underground electrical supply systems
and communication systems (hereinafter referred to as "systems'), consisting of wires, underground conduits,
cables, vaults, manholes, hndholes, and including above- ground enclosures, .markers and concrete pads
and other appurtenant fixtures and equipment necessary or useful for distributing electrical. energy and for
transmitting Intelligence by electrical means, in, on, over, under, across and along that certain real property
in the County of ......... - ...... ..9 XPL.A9e -------- .....:_--.-- _............................. State of California, described as follows:
A strip of land, 10 feet in width, lying within a portion of Lot 171, of Irvine's
Subdivision, as shown on map recorded in Book 1, page 88 of Miscellaneous Maps, in.
the office of the Recorder of said County; the centerline of said strip being
described as follows:
Commencing at the intersection of the northwesterly line of Tract.No. 1140, as
shown on map recorded in Book 36, page 28 of Miscellaneous Maps, records of said
County, and the southerly line of Coast Highway, 100 feet wide as now established;
thence, westerly along said southerly line, 418 feet to the TRUE POINT OF BEGINNING•,
thence, southerly at right anglea from said southerly line, a distance of 38 feet.
BALBOA BAY CLUB, INC., a corporation, as lessee of the herein described real property,
does hereby consent to this Grant of Easement to said SOUTHERN.CALIFORNIA EDISON_
�4 /W 61.AND 1.01'LiAtYl.
JSFARTMENT ..
RSH By. By
DATE President Secretary
1/17/73
The Grantor agrees for itself; its successors and assigns not to erect, place or maintain, nor to permit
the erection, placement or maintenance of any building, planter boxes, earth fill or other structures except
walls and fences on the above described real property. The Grantees, and their contractors, agents and
employees, shall have the right to trim or cut tree roots as may endanger or interfere with said systems and
shall have free access to said systems and every part thereof, at all times, for the purpose of exercising the
rights herein granted; provided, however, that in making any excavation on said property of the Grantor,.,
the Grantees shall make the same in such a manner as will cause the least injury to the surface of the ground
around such excavation, and shall replace the earth so removed by it and restore the surface of the ground
to as near the same condition as it was prior to such excavation as Is practicable.
EXECUTED this - ........... -- day of ..._ .............. - -.:.. 19 -.� -.
CITY OF NEWPORT BEACii,
a municipal corporation
By- ---- ..... _ ........ .._.................
.. ..- - -- -- - - -- - - - -- Bv -- .................:._-....-------•-•----•-•--- ...-- •-- •-- '•--- •____...__.._ '
City Clerck-
STATE OF CALIFORNIA )
as.
COUNTY OF )
On , before me, a Notary Public in and for said
State; personally appeared acd
known to me to be the Mayor a-- City Clerk,
respectively; of the municipal corporation that executed the within s =ent.:a '
acknowledged to me that they executed the same on behalf of the mu i _;a _e.w ^ k
WITNESS my hand and official seal.
0
• �,,, WHEN RECORDED MAILTO'
Fidelity Mortgage Investors
xe�ne 100 Federal Street'
any Boston, Massachusetts 02110 '
E.H.Parker, Esq..
z- LAttn: J
RECORDERS tAE ONLY
ALL — INCLUSIVE DEED OF TRUST AND ASSIGNMENT OF RENTS (SHORT FORM)
This Deed of Trust, , made this 26th day of February, 1973 , between
Balboa Bay Club, Inc. , herein called TRUSTOR,
1221 West Coast Highway , Newport Beach Californian 92660
.. whose address is
'(numb. and street) Idly) (dab) la0 coda?
FIRST CALIFORNIA TITLE COMPANY, a California corporation, herein called TRUSTEE, and
Fidelity Mortgage Investors, a , hercmcalled BENEFICIARY
Massachusetts business trust
Witnesseth: That Tmstor IRREVOCABLY GRANTS TRANSFERS AND ASSIGNS TO TRUSTEE IN TRUST, WITH POWER
OF SALE, that property in Orange County, California, described as:
Schedule',I attached.
1•
See. Schedule II attached for additional text which is
incorporated herein.
TOGETHER WITH the rents and profits thereof,' SUBJECT, HOWEVER, to the right, power and authority given to and conferred
1 j upon Beneficiaryby paragraph ( 10) ofthe provisions incorporated herein by reference tocollect and applysuch rents, issues and profits.
For the Purpose of Securing: (a) Perfo mance of each agreement of Trustor incorporated by referenwor contained herein. (b) Payment
of the indebtedness evidenced by one promissory note of even date herewith, and any extension or renewal thereof, in the principal..
SUM OF s 4 , 594 , 000 executed by Trustor in favor of Beneficiary or order. (c) Payment of such further slims as the then
record owner of said property hereafter may borrow from Beneficiary, when evidenced by another note (or notes) reciting it is so so-'
cured. To Protect the Security of This Decd of Trust, Trustor Agrees: By the execution and delivery of this Deed of Trust and the
note secured hereby, that provision (1) to (14), inclusive, of the flcitious deed' of trust=COlded in all counties August 21, 1964 in the
book and at the page of Official Records in the office of the wanly recorder of the county where sad Property is located, noted below
opposite the name of such County; except Ventura County recorded August 5, 1969; viz:
P Co' [ nook Da a count Book P a
County 99ok Pale County Book ale county 9 y a9
Alameda .RE12921MI70 ladd=er 911 365 San Bernardino 6216 547 Sonoma 2065 154
Comaa 323 492 Mari. [890 152. San Oivi File No.1526M SUM"..' ID71 117
Contra Corta . 4667 1 Mere" 1551 95 San Fnneieeo .506 372 Sutter '656 106
El Dorado 705 0.54 Napa 704 975 San Joaquin 2556 555 Tehame 457 399
Fresno 5054 369 Omnga 7189 535 San Mateo 4760 303 Tulare 2531 350'
Korn 3757 976 Placer 1029 67 Santa Barbara 2066 415 '' Ventura 3525 266
KI., 655 901 RN.111da 3752 176 Santa clove 6631 256 Yolo 769 279
Lake 437 351' Saeemano 5042 265 Santa Cruc 1639.$30 Yuba 399 116
Los Angeles, document q 5474 $an Banno 300 449 S.I.. 1266 .561
(which provisions, identical in all counties, are printed on the reverse hereof) hereby are adopted and inwrporated.herein and made a
_ part hereof as fully as though set forth herein at length; that he will obsem and perform said provisions; and that the references to
property, obligations, and parties in said provisions shag be construed to =far to the property, obligations; and parties set forth in this
Deed of Trust.
The undersigned Tr istor 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 and agrees that for any statement regarding the obligations secured hereby, Beneficiary may charge
the maximum amount permitted by taw at the time of the request therefor. Signarwe of Trusty
BALBOA BAY CLUB, INC.
STATE OF CALIFORNIA 35.5. H ✓ /LgfaPNT
I
COUNTY OF .
On 119— .
I before me, the undersigned, a Notary Public in and for said
County and State, Personally appeared
Notary Seal
known to me to be the person _whose name .
subscribed to the within instrument and acknowledged that
executed the same.
i
WITNESS my hand and official real..
Notary Public in and for said County and State,
T- 61r20m -1J0
• • RECORDINODESTED SY .
. ORDER NO.
ESCROW NO.
WNEry RECORDED MAIL TO
,eM1. Fidelity Mortgage Investors
+ 100 Federal street' ..
°ny Boston, Massachusetts 02110
. .. s: 'Attnt E.H.Parker,. Esq.
r
RECORDERS USE ONLY
ALL— IlimusivE DEED OF TRUST AND ASSIGNMENT OF RENTS (stdosT FORM), .
This DCUh Of Trust, , made this 26th day of February, 1973. , between .
Balboa Bay Club, Inc. ; hemin called TRUSTOR,
.1221 West Coast Highway Newport Beach California 92660
whom address is
lnumbw and snafu Icny7 4au"1 (.to Co6U
FIRST CALIFORNIA TITLE COMPANY, a California cerpomtion, herein called TRUSTEE, and
Fidelity Mortgage .Investors, a hemincalled BENEFICIARY
Massachusetts business trust
Witneseeth: That Tiustor IRREVOCABLY GRANTS TRANSFERS AND ASSIGNS TO TRUSTEE IN TRUST, WITH POWER
OF SALE, that property in Orange County, California, described as: .
} Schedule I attached.
1 :.See Schedule II attached for additional text which is
incorporated herein.
TOGETHER WITH the rents and profits thereof, SUBJECT, HOWEVER, to the right, power and authority given to and conferred
upon Beneficiary by paragraph (10) o£ the previsions' incorpommdhcrein by reference to collect and apply such lints, issues and profits
For the Purpose of Securing: (a) Performance of each agreement of Truster incorporated by referenceor contained herein. (b) Payment
of the indebtedness evidenced by one promissory note of even date herewith, and any extension or renewal thereof, in the principal
SUM OF s 4, 594 , 00 0 executed by Truster in favor of Beneficiary or order. (c) Payment of such further sums as the then
record owner of said property hereafter may borrow from Beneficiary, when evidenced by another note (or notes) reciting it is so se
j cured. To Protect the Security of This Deed of Trust, Trustor Agrees: By the execution and delivery of this Deed of Trust and the
' note secured hereby, that provision (1) to (14), inclusive, of the ficitiow deed of trust recorded in all counties August 21, 1964 in the
book and at the page of Official Records in the office of the County recorder of the county where said property is located, noted below
opposite the name of such county; except Ventura County recorded August 5, 1969; viz:
County. Book P.I. County Book Po9e County Book Peg" Cnunty Book Page '
ANrnWa RE1292IM270 Madera 911 us San B..nd,sm 6216 847 Sonoma 2068 154 .
Colus 323 492 Mafln IB50 162 San Diego FIN No. 152505 staninaus 19] 1 117
Contra Costa 468] 1 Merced 1661 95 'San Prandsm .006 372 butter 656 106
EI Dorado 705 454 N.P. 704 978 San AW0.1n anise 558 Ton... 457 3$9
PMnno 5054 Me Orange 7189 535 San Masco 4780 303 Tulare 2531 350
.Kern 3757 976 Placer 1029 67 San "norbara.'2066 415 vent.. 3528 268
Kings 058 901 RI..Wa 3782. 176 San "Clara 6631 256 Yolo ]69 2]9
lake 437 351 Sacramento 5042 268 Santa Cruz 1639 $30 Yuba 399 116
Lee An9a1es, d... -.nt a 5474 San Binh. 309 449 S.W. 1288 561'
(which provisions,identiod in all counties, are printed on the rnmrse hereof) hereby am adopted and incorporated herein and made a
part hemof as fully as though set forth herein at length; that he will observe and perform said provisions; and that the references to
- -- -- • - .. -,:.. 4- ..:A - .n..:dnnc ahnn h8 mnatnled.to refer to the Property, obligations, and parties set forth in this
Commonwealth of Massachusetts)
ss.
County of Suffolk y
On February 26, 1973, before me, the undersigned, a.Notary Public
in and for said County and State, personally appeared William D. Ray, "
. known to tae to be the President of the corporation that executed the within
instrument, and known to me to be the person who executed the within instru-
ment on behalf of the corporation therein named, and acknowledged to me
that Such corporation executed the within instrument pursuant to its By-
laws or aresolution of its Board of Directors.
WITNESS my hand and official seal.
I�
Notary Public in an afor said CLCoount-v
and State
is
i
i
DO NOT RECORD
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DO NOT RECORD
REQUEST FOR FULL RECONVEYANCE
. To be toad only when note, hall ball Paid...
To First California Title Company, TTUbtee: Dated:•
The undersigned is the legal owlcer and holder of all indebtedness secured by the ou" Deed of Trans. All sums scatted by said
Deed of Trust have 'been fully paid asd. satisfied: and you are hereby raryested and directed,'on:payment in you of any sutlis owing
to you under the terms of sail Deed of Trust, in cancel all evidences of indebtedness, seLVred by said Deed of Trutt, delivered m you
herewith together with said Deed of Trust, and to recomey, without wamnty, an the panda designated by she terms of said Deed of
Trans, the estate now held by you under the same.
bon¢ 3incoNVSrst® To:: .. .
Do nary bse m destroy this Deed of Trust
delivered ro the Tru ide for .
THE NOTE which it searres. Bock mad be
to before remnvey a will be beade.'
FIRST CALIFORNIA TITLE COMPANY
300 KLANO LAKCSIM
ALIF. 461 823 FOURTH SCALIF E95
FIRST OA LAND,34-27. W612 SANTA ROSA CALI. 95 +01
USF
r (ats) e3an +z 90735 -1771
MISSION AT MATTOX 2805 WEST SRO STREET'
ar
iC i3r1 HAYWARD, CALIF. 94541 LOS ANGELES, CALIF. 90057
Waa.beAa
14 01 2767000 (213) 3801080
4S SUTTER STREET 3457 TELEGRAPH ROAD
SAN FRANCISCO, CALIF. 941W VENTURA. CALIF. 93003
14151433-0212 180516440271
991 MARSHALL STREET 6TH AND "A" STREET
REDWOOO CITY.CALIF.9/O61 SAN DIEGO. CALIF. 92101
µI513683941 (714) 23 9bWl
100 A 5O. EL CAMINO REAL 16W NORTH MAIN STREET
SAN MATEO. CALIF. 94400 LAMA ANA. CALIF. W702
(4351342 -0826 01415474511
244 NO. SANTA CRUZ AVENUE
LOS GAT05, CALIF. 95954
'09)3504461
DEED O F T R U S T (With Power of sdie)
SCHEDULE I.
The Trustor's leasehold interest irr the following.described property:.
That certain Parcel of Land-situated in the City of Newport Beach, County.of .
Orange,.State of California, care particularly described as follows:
Beginning at a point on the U. S. Bulkhead Line extended.from U. S. Bulkhead
Station No. '129 to U. S. Bulkhead Station No. 130, as said Bulkhead line and
Bulkhead Staticns are laid out and s can on a map of Newport Bay, California,
showing Harbor Lines approved by the War'Departnent,. January 18, 1917, which
said point is distant South 61 °'00' 00" East, me --sured along said Bulkhead .
line, 700.00 feet from the intersection of said Bulkhead Line with the South -
westerly prolongation of the center line of Irvine Avenue, as shown on a map .'
of First Addition to rewport Knights, recorded in book 4, page 94 of Mis-
cellaneous Maps, in the office of the County.Recorder of said Orange County,
said point of intersection being the cost Southerly corner of Lot.H of Tract
No. 919, as shown on a map recorded in book 29, pages 31. to 34 inclusive of
Miscellaneous Maps, is the office.of the County Recorder of said Orange County; .
thence North 29° 00' 00" East 154.19 feet to the Southerly,line of the 100 .
foot right . of. way of the California State Highway ORA -60 -B; thence Easterly
along said Southerly line of the 100 foot right of way of the California
State Highway to an intersection with the Northwesterly line of Tract No.
1140, as shown on a map recorded in book 36, page 28 of Miscellaneous Maps,
in the office of the County Recorder of said Orange County; thence South 29°
00' 00" West along said Northwesterly line and the Southwesterly prolongation
thereof 624.99 feet to a point on the said U. S, Bulkhead Line between
Station No. 129 and Station No. 130, said point being Station No. 130.as
described in decree in-Case No. 20436 in Superior Court of the State of
California, in and for the County.of Orange, thence continuing South 29 °..
00' 00" West 350.00 feet to a line parallel with and distant 350.00 feet
Southwesterly, measured at right angles from the above mentioned U. S..
Bulkhead line between Station No. 129 and Station No. 130; thence North 61°
00' 00" West along said parallel line,.1,574.84 feet to a point which bears
South 29° 00' 00" West 350.00 feet from the point of beginning; thence North
29° 00' 00" East 350.00 feet to said point of beginning..
EXCEPT that portion described as follows: Beginning at a point on the
Southerly line of the 100 foot right of way of the California State Highway
ORA -60 -B in Orange County, California, said point of beginning being at
right angles to Engineer's Station 7+495.46 in the center line of said
Highway; thence South 150 38' 30" Nest 44.00 feet;, thence North 74° 21' 30"
West 34.00 feet; thence North 15° 38' 30" East tv an intersection with the
said Southerly line of the State Highway; thence Southeasterly along said
Southerly line to the.point of beginning.
ALSO EXCEPT that portion thereof lying Southwesterly of the existing concrete
Bulkhead or below the mean high tide line of the Pacific Ocean in Newport
Bay as to those portions where.no improved Bulkhead exists.
SCHEDULE I
EXCEPT the follo-.ring described:
Beginning at a point en the U. S. Bulkhead line extending from U. S. Bulkhead
Station :iac 129 to U. S. ul,-,ho-ad Station. No. 130. as said Bulkhead .line and
Bulkhead Stations are laid out and sh&4n on a rap of Newport Bay,. California,
showing Farber lines rvipraead by the war Departcant, January 18, 1917, which
said point is distant South 61° O1' 07" East, measured along said Bulkhead
line, 700.00 feet from the intersection of said Bulkhead lime with the
Southwesterly prolon_,ation of the center line of Irvine Avenue, as shown on
a map of First Additicn to NZt.port Faights; recorded in book 4, page 94 of
Miscellaneous Paps, in the office of the County Recorder of said Orange County,
said point of intersection being the most Southerly corner of Lot "H" of
Tract. No. 919, as shown on a nap recorded in book 29, paves 31 to 34 inclusive
of Miscellaneous Maps, in the office of the County Recorder of said Orange
County; thence North 28° 58' 53" East 154.19 feet to a point in the South-
westerly line:of the 100 foot right of .way of the California State.Highway
ORA -60-B, said point being radial to Engineer's Station 6+56.15 in. the center
line of said highway, said radial bears North 199 37' 57" East from said point,
said Southwesterly line being a curve,.concave Northeasterly and having a
radius of 2050.00 feet; thence Southeasterly along said Southwesterly line
through a central angle of 3° 59' 27% 142.79 feet to a tangent line; thence
South 74° 21' 30" East along said tangent line and said Southwesterly line,.
662.08 feet; thence South 28° 58' 53" West 195.71feet; thence South 27° 00'
00" East 16.66.feet; thence South 28° 58'53" West 480.00 feet to a line
parallel with and Southwesterly 350.00 feet from said Bulkhead line; thence
North 61° 01' 07" West along said parallel line a distance of 798.00 feet to
a point which bears South 28° 58' 53" Nest.350.00 feet from.the point of
beginning;.thence.North 28° 58'"53" East 350.00 feet to.the point of beginning.
SCHEDULE I
THE TRUSTOR'S LEASEHOLD INTEREST IN THE FOREGOING PROPERTY WAS CREATED
BY THE FOLLOWING DESCRIBED LEASE:
A Leasehold Estate created.by the following described Lease:
A lease covering this.and'other property, dated,March 24, 19489 executed by
City of Newport Beach, a ^unicipai corporation, as.Lessor, and by the Newport
Bay Company, a corporation, as Lessee, for the term of 50 years, from September 10 '
1948 and continuing tq.and including.,the 31st day of 'August, 1998; upon the
terms, conditions and covenants therein provided, recorded January 14, 1954,,
in book 2651, page 126, Official Records, and as amended by instrument dated
April 10, 1950, e—ecuted_by said Lessor and said Lessee, recorded January,14,
1954, in book 2651, pa ,e 146, Official Records, and as further amended by
instrument dated September 29, 1952,. executed by said Lessor and said Lessee,
recorded January 14, 1954, in book 2651, page 152, Official Records, and by an
instrument dated March .23, 1960, executed by said Lessor and Lessee,' recorded
April 6, 1960, in book 5179, page 430 of Official Records, upon the terms,
conditions and covenants, as therein provided.
The interest_.of,,the lessee under said lease was assigned.to Wrather Investment,
Inc., a corporation, by assignment recorded April 6, 1960, as Document No. 60015,
in book '5179, page 561 of Official Records. Wrather Investment, Inc., 'a
corporation, changed its name to Balboa Bay Club, on April 13, 1960.
SCHEDULE I
SCHEDULE I2
This is an all- inclusive second deed,of trust,,secur
ing a note for Four Million Five Hundred Ninety -four Dollars
($4,5941000.00) which includes within said sum a Two Million
One Hundred Forty -five Thousand: Three Hundred Dollar
($2,145,300.00) obligation to,.Great Western Savings and Loan
Association, successor in interest to Equitable Savings and
Loan Association.
Irrespective of any provision of this deed of trust
to the contrary notwithstanding, any demand for sale delivered
to Trustee for the foreclosure of this deed of trust shall be
reduced by such unpaid balance, if any,, of principal, interest
and charges existing upon the.Two Million One Hundred'Forty-
five Thousand Three Hundred Dollar ($2,145,300.00) obligation,
referred to above, as exist at the time of the Trustee's sale
upon such foreclosure, satisfactory evidence of which unpaid
balance must be submitted to Trustee prior to such sale.
SCHEDULE II
PROMISSORY NOTE
$4,594,000 February 26, 1973
FOR VALUE RECEIVED, the undersigned, Balboa,
Bay Club, Inc., a California.corporation, hereby
promises to pay to the order of Fidelity Mortgage
Investors, a Massachusetts trust ("FMI "), at FMI's
offices, 100 Federal Street, Boston, Massachusetts,
or at such other place, or to such other party
or parties as the holder of this Note may from
time to time designate, on February 25, 1974, the
principal sum of Four Million Five Hundred Ninety-
Four Thousand Dollars ($4,594,000), together with
interest from date.of advances on the principal
balance hereof outstanding from time to times com-
puted daily from the date hereof until maturity
at the rate per annum in effect from time to time
hereunder .(hereinafter the "Effective-Rate of
Interest "). The Effective Rate of Interest from
the date hereof through February 28, 1973 shall be
2%,per annum above the lowest rate of interest
being charged at the close of the banking day on
February 23, 1973 by Horgan Guaranty Trust Company
( "Morgan "), at,its head office in New York, New York
for new 90 -day unsecured "loans to commercial bor-
rowers The Effective Rate of .Interest for each
calendar month (or portion thereof during which`
this Note shall be outstanding) commencing on and
after IMarch 1, 1973 shall be 2% per annum above.
Morgan'.s said lowest rate of interest at the close
of its banking day next preceding the first day,
of such calendar month. Notwithstanding any of
the foregoing, the Effective Rate of Interest
shall in no event exceed that permitted by
applicable law. The undersigned.snall; have four
consecutive options to;renew this Note at maturity
and at the end of.each subsequent renewal term, each
for an additional six -month period, provided that
(1) at the.time of renewal there is no outstanding''
and uncured event of default hereunder or with
respect. hereto, (2) the undersigned shall give
ten days advance written notice to,FMI on each
occasion of its election to renew and (3) the
undersigned shall pay to ml a fee of $36,700 for each
renewal, 'such fee to be payable (i) in full on.
the renewal date for any extension period falling
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within a single fiscal year of FMI, or (ii) for:,
any extension period falling within two fiscal
years of FMI, pro rata on the.renewal'date and
the first day of the second of said fiscal years,
based on the number. of days of such extension period
falling within each.of said.fiscal years.
Following the occurrence and during the-con-
tinuance of any event of default under this Note
(as hereinafter set forth)'; this Note shall bear
interest at the lower of. 15% per annum:or the maxi-
mum rate permitted by applicable law, payable monthly
on the first day of each month thereafter, in lieu
of the rate hereinbefore specified. Should the
indebtedness represented hereby or any part thereof
be collected by action at law or in equity, or
in bankruptcy, receivership or:other court pro -
ceedings, or this Note.be placed in the hands of
.attorneys: for collection, all parties.hereto, whether
maker, co- maker, endorser or guaran-tor,,severally
agree to -pay all °'costs of collecting this Note;
including reasonable attorneys' fees, whether col-
lected by.suit or otherwise:
From time to time, without notice to maker, -
co- makers, endorsers-and.guarantors, this Note
may be extended or renewed in whole or in part'
and /or the rate of interest.thereon may be-chan-
ged or fees in consideration of.loan extensions
may be imposed and any related right or security
therefor may be waived, exchanged, surrendered
or :otherwise dealt with and any of the acts men- .
tioned In this Note may be done, all without af-
fecting the liability of the maker, co- makers and
endorsers and guarantors, each -of whom agrees to
remain liable under this Note until the debt re-
presented hereby is actually paid in full to the
holder. The release of any party liable upon or
in respect of this Note shall not release any other
such party. Each.of the guarantors,.endorsers,
co- makers and maker hereby waives presentment,
demand of payment, protest and notice of non-
payment and of protest and any and all other notices .
and demands whatsoever.'
This Note is secured by a first Mortgage
executed by the maker hereof, constituting a first
lien on real estate. It is expressly agreed that
all of the covenants, conditions and agreement
contained in said Mortgage and any Construction
Loan Agreement executed in connection therewith
are hereby made part of this Note.
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To induce FMI to make the loan.evidenced here -
by, the undersigned represents and warrants that:
1. It is a corporation duly .organized, val-
idly existing and in good standing under the laws
of California, has the power and authority to own
its property and to carry on its business as now
being conducted and is duly.qualified to do busi-
ness and in good standing as a foreign corporation
in all places where the,nature.and extent of the.
business conducted by it and applicable law require
such qualification.
2. It is not in default under any provision
of its charter, other incorporation papers, by-
laws or stock provisions or any amendment there-
of or of any indenture or agreement to which it
is a party or of any order, regulation, ruling
or requirement of a court or public body or author-
ity by which it is,bound.
3.
No action, suit or proceeding is pending
or.known to be threatened against it before any
court or administrative agency which, by itself
or taken together with other such litigation, in-
volves.a.subst.antial amount not covered by insurance
nor is any substantial.basis for any such litigation
.known to exist.
4. The execution, delivery and performance
of this Note are within its corporate powers,,have
been duly authorized and do not violate any pro-
vision of law or of its charter, other.incorpora-
tion papers, by -laws or stock provisions or any
amendment thereof or of any indenture or agree-
ment to which it is a party or of any order,
regulation, ruling or requirement of a court or
public body.or authority by which it is bound.
5. It is not subject to any provision of its
charter, other incorporation papers, by -laws or stock,
provisions or any amendment.thereof,.nor is it a
party to any indenture.or agreement, nor is it specific -
ally bound by any order, regulation, ruling or require -
ment of a court or public body or authority which will,
.under current or foreseeable conditions, materially
adversely affect its normal operations or materially
impair its financial condition. No litigation is
pending or known to be threatened against it which
might have any such effect.
-4-
6. The balance sheet as of September 30, 1972
and the related.siatements of income and earned
surplus for the.fiscal year ending,on such date
heretofore delivered to FMI, fairly and accurately.
present its assets, liabilities and financial con
-
dition.on, and the results of its operations for
the period ending on, such date and have been pre-
; pared in accordance..,.with generally accepted prin-
ciples applied on a basis.consistently followed
in all material respects throughout the period
involved, and there are no contingent liabilities
not disclosed thereby which involve a substantial
amount. Since the date of s.uch.balance sheet,
there has been no material adverse change in the
assets, liabilities or financial condition shown
thereon.
7. It has good and marketable title to its
properties and assets, including such properties „
and assets as are reflected in the balance sheet
referred to in-paragraph 6 above (except such assets
as have been disposed of in the ordinary course
of business subsequent to the date thereof).
B. All of its federal, state and other tax
returns required by law to be filed have.been filed, .
and all federal, state and other taxes,.assessments
and other governmental charges upon it or its prop-
erties which: are' due 'and''pa°y'able have been paid.
No federal income tax returns have been audited
by the Internal Revenue Service for any of its
taxable years. No additional assessments for any
such taxable years are anticipated and all charges,
accruals and reserves for federal taxes are deemed
adequate.
9. No event has occurred and is continuing'
and no condition exists which constitutes or which
after notice or lapse of time, or both, would con -
stitute an event of default hereunder.
j Upon the occurrence of any of the following
events of default: (a) default:in the payment
or performance of (i) any obligation of the un-
dersigned to the holder hereof, whether direct
or indirect, absolute or contingent; due on to
become due, now existing or hereafter arising
(the "Obligations "), or (ii), any obligation to
the holder of any endorser or 'guarantor of.any
of the obligations; (b) loss, theft, substantial
damage, sale.or.encumbrance to or of any substantial
_5-
portion of the property constituting collateral herefor
for which the undersigned. is not fully reimbursed from
insurance.: within 30 days of the occurrence of such event,
or the makng.of any levy, seizure or attachment thereof.
or thereon or.the failure tq pay when due any tax thereon
or, with respect to'any insurance policy, any premium
_.,.. therefor; (c). default under any mortgage,.deed of trust,
security agreement, Construction Loan Agreement.or other
document or instrument constituting collateral herefor
or executed in connection herewith; (d) dissolution or
termination. of. existence other than by reason of a merger
with International Bav Clubs, Incorporated, insolvency,
business.,...failure, appointment of a: receiver of any
part of the property of, assignment for the benefit of
creditors by,.or the commencement of any proceedings
under any bankruptcy or insolvency laws by or against...
the undersigned, or any endorser..or guarantor, hereof;.-.
.(e).any representation, warranty, statement, certifi-
cate, schedule or report made.herein.or furnished in
connection'with the loan evidenced hereby shall prove
to have been false or misleading in any material respect
as of the time made or furnished;. (f) material default
by the undersigned (as principal or guarantor or other
surety) either in the payment of the principal or, or.
premium, if any,:or interest on any material.indebtedness
for borrowed money (other than that evidenced hereby) or
with respect.to any of the provisions of any note,
bond, debenture .or'similar. obligation evidencing such
., indebtedness or of any agreement relating thereto and
the continuance of such default beyond any period of..
grace provided with respect thereto.; thereupon,or at
any time thereafter (such default not having been.
previously cured), at the option of the holder,.all
Obligations shall become immediately due and payable
without notice or demand.
Any securities or other property of the un-
dersigned, or any endorser or. guarantor hereof
in the possession of the holder may.at all times .
be held as collateral for the payment and perform=
ance of the Obligations.and any and.all. obligations
of any endorser or guarantor hereof to the holder,
whether direct or indirect, absolute or contingent,,
due or to become due, now existing or hereafter .
arising.
No delay or omission on the part of the hol-
der in exercising any right hereunder shall operate
as a waiver of such right or of any other right
under this Note. No waiver of any right shall
be effective unless in writing and signed by the
on.any- future occasion.
As herein used the word "holder ".shall mean_
the payee or any endorsee of this Note who is in
possession of it, or the bearer hereof, if this
Note.is at the time payable to the bearer.
This Note, and all rights and remedies with
respect hereto, shall be determined as to their.
validity, construction, effect and enforcement,
and in all other respects of the same or differ-
ent nature, by the laws of Massachusetts.
This Note may at any time be prepaid by the under-
signed in whole, but not in part, upon.thirty (30) days'
written- notice -in advance from the undersigned to FMI
and the payment of a prepayment penalty of 2% of the
face.amount hereof, provided, however, that any such
prepayment may be made without penalty at any time -after
completion of the Improvement (as defined in the Con-
struction Loan Agreement of even date herewith between
the undersigned and FIMI) from the proceeds of a permanent
loan to the undersigned by a financing institution. and .
having an original final maturity of at least ten years
from the date made.
This Note may not be terminated orally, but
only by discharge in writing and signed by the
party who is the owner and holder of this Note
at the time enforcement of any discharge is sought.
BALBOA BAY CLUB, INC.
BY;
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