Opinion
Case No.: 2:07-CV-02612-JAM-KJM.
Case Filed: December 5, 2007.
May 7, 2008
MARK A. CAMERON (Bar No. 100449), DAVID E. HARRIS. (Bar No. 161334), MILLER STARR REGALIA, A Professional Law Corporation, Walnut Creek, California, Attorneys for Plaintiff, WACHOVIA BANK, NATIONAL ASSOCIATION.
ORDER GRANTING APPOINTMENT OF RECEIVER BASED UPON STIPULATION
A Stipulation for Appointment of a Receiver ("Stipulation") was electronically filed on May 6, 2008 before the Honorable John A. Mendez of the above-entitled Court by Miller Starr Regalia on behalf of plaintiff WACHOVIA BANK, NATIONAL ASSOCIATION ("Wachovia").
Having considered the representations in the Stipulation, and the contents of the documents referred to therein and herein below, the Court finds that the following matters are undisputed:
(a) Moving party Wachovia as agent and beneficiary under a Loan Agreement and related Promissory Notes, is the holder of the beneficial interests in two deeds of trust, one of which is that deed of trust recorded in the Official Records of Placer County on October 21, 2005, as Instrument No. 2005-0141560 ("Golf Course Deed of Trust"). A Notice of Default was recorded concerning the Golf Course Deed of Trust on or about November 9, 2007. This Order concerns all of that real Property and personal property described in said Golf Course Deed of Trust at Exhibits A and B, which exhibits are attached to this Order Granting Appointment of Receiver Based on Stipulation ("Order") to define the property subject to the receivership below ("Property");
(b) The Golf Course Deed of Trust at, inter alia, sections 4.2(a) and 4.5, as recorded and as attached to the Complaint in this lawsuit, expressly provides for the appointment of a receiver after monetary defaults, and monetary defaults are likely to exist by Winchester Country Club LLC ("Owner") and Winchester Properties, LLC, ("Borrowers");
(c) There is an imminent risk that there will not be adequate resources to preserve some or all of the Property, thus providing cause for the immediate appointment of a receiver over all of the Property during the pendency of foreclosure proceedings. The parties named in the lawsuit above are referred to as the "Parties".
(d) Federal Rules of Civil Procedure, Rule 66, Local Rule 66-232(a), California Civil Code § 2938(c)(1) and California Code of Civil Procedure § 564(b)(1)(2) and (11) each provide support for a receiver under the circumstances presented. The Complaint at paragraphs 59-67 pleads for a judicially appointed receiver over the Property.
(e) Pursuant to California Code of Civil Procedure § 564, subd. (d) the Stipulation and issuance of this Order do not constitute an action within the meaning of Code of Civil Procedure § 726, subd. (a).
Wherefore, based upon the above findings, the accompanying Stipulation, and good cause appearing:
IT IS HEREBY ORDERED that Wachovia's application for appointment of a receiver is granted, on the following terms:
1. Douglas P. Wilson is hereby appointed Receiver in this action. Based upon the Stipulation, it does not appear that any noticed hearing on the confirmation or continuation of the receivership shall be required. Should any person object to the Receiver or terms after appointment or object to the amount of the Bond required to be posted by the Receiver, such persons are to show cause to this Court at a noticed hearing.
2. Within three (3) calendar days of entering upon its duties as Receiver, Receiver shall take the oath required by law and file herein an approved surety company bond in the penal sum of $150,000, conditioned upon the faithful performance of its duties as such Receiver. The Receiver's Bond and the Oath of the Receiver may be filed by electronic transmission.
3. As of 7:00 a.m. on the day following the day on which this Order is filed (the "Effective Date"), Receiver shall be legally entitled to enter upon, gain access to, and take possession of the Property and to care for, preserve, operate and maintain the Property and incur necessary expenses as required to comply with this Order.
4. The Receiver is authorized, empowered and directed as of the Effective Date to:
4.1. Hire, employ, retain, and terminate consultants (including but not limited to the Douglas Wilson Companies, the Receiver's management company), brokers and any other personnel or employees, which the Receiver deems necessary to assist him in the discharge of his duties. All reasonable expenses incurred in connection with the hiring and retention of such personnel shall be expenses of, and paid for by, the receivership estate or Property.
4.2. Collect all rents, profits, royalties, income, damages from any cause of action the Receiver is empowered to pursue, and other benefits derived from the Property ("Income") which is now or hereafter may be derived from the Property and existing operations relating to the Property. To the extent that, on or after the Effective Date, Owner or its agents, assignees, successors, or representatives collect any Income derived from the Property, such Income shall be delivered to the Receiver within five (5) business days of such collection. To the extent that as of the Effective Date, Owner, or its agents, assignees, successors, or representatives hold in their possession or control any Income derived from the Property, they shall promptly turn same over to Receiver, including control of any bank accounts or reserves so derived. Any Income, security, or other deposits collected by Owner or obligors to Owner, and which are not paid to the Receiver, and over which the Receiver has no control, shall be obligations of Owner and may not become obligations of the Receiver without further order of the Court.
4.3. Demand, receive and keep safely in its possession all Income received from the use or occupation of Property and the use of the personal property of Owner located on the Property, and all monies, bank accounts, records, books of account, rent schedules, ledgers and other documents of Owner pertaining to the operation of the Property held by persons in possession of, or concerned with the management of the Property. All persons now or hereafter having possession of any of the same are ordered and directed, subject to any applicable attorney-client or work product privileges, to deliver possession thereof to the Receiver.
4.4. Apply Income available from the Property to protect the Property from imminent physical waste and, as far as practicable, to operate the Property. In addition, the Receiver shall promptly investigate and then make recommendations as to whether and to what extent operations at the Property should or should not continue, based on Income available from the Property and the expenses necessary to preserve the assets of the Property. In the event that the Income from the Property is not sufficient to pay the costs of the Receiver and to preserve and operate the Property, the Receiver may request, and moving party Wachovia may, if requested by the Receiver and in Wachovia's sole discretion, advance requested funds to the Receiver as permitted under applicable provisions of the Golf Course Deed of Trust and related promissory note and loan agreement. Advances, if any, shall be considered advances pursuant to the Golf Course Deed of Trust and all appurtenant loan documents and shall be added to the obligations of the Borrowers hereunder. Should Wachovia choose not to make such advances and should no other party be willing to do so, then Receiver may issue first priority lien against the Property Receivership Certificates in increments of $10,000 up to $100,000, or apply to the Court for issuance of first priority lien Receivership Certificates in any greater sum. Nothing in this Order shall imply that moving party Wachovia has any obligation to provide any loan advances, or to fund Receivership Certificates, or to otherwise provide capital or funds in any manner to implement any recommendations of the Receiver as to the continued operations of the Property ("Optional Operations") except as the Receiver finds necessary to protect the Property from imminent physical waste, or as the law provides to assure payment of the Receiver's fees. Optional Operations will be evaluated by the Receiver and may include, but are not limited to, operation of the clubhouse, food services, pro shop, or golf course usage, and any capital improvements. Wachovia shall be entitled to make its own determination as to whether its investment of additional funds is appropriate for Optional Operation purposes other than physical preservation of the Property, and should such funding be deemed necessary by Receiver and no other funding source be available, Receiver shall alert the Court and may then apply to dismiss the Receivership and be discharged. Should Receiver recommend funding for any Optional Operations, and should Receiver identify anyone willing to fund purchase of Receivership Certificates for such other purposes, Receiver may return to Court and request issuance of such certificates. To the extent Income is available from current Property operations to continue Optional Operations of the Property, the Receiver shall be empowered to so operate the Property, including, as necessary employing agents, servants, employees, clerks and accountants, and to purchase merchandise, materials, supplies and services and to pay leases in the ordinary course of operation, and to pay for them at the ordinary and usual rate out of the funds which shall come into his possession as Receiver.
4.5. To the extent practical based upon available Income and necessary expenses of the Property, bring and prosecute all proper actions for the collection of sums due, as well as all necessary actions and proceedings for the removal of lessees, persons, or other entities in default, from the Property, and to bring and prosecute all proper actions for the protection of the Property, or to recover possession thereof. The Receiver is authorized to employ counsel to provide such legal assistance as may be necessary to achieve these purposes. The Receiver is authorized to compensate said attorney at an hourly rate not to exceed $415.00 and to pay on a monthly basis such fees upon compliance with the notice and opportunity for objection procedure set forth in paragraph 13 below, with all such compensation subject to ultimate approval by this Court upon a regularly noticed application
4.6. Exclude from the Property any person in any way interfering with the operation of the Property by the Receiver;
4.7. Institute, prosecute, defend, compromise, intervene in, or become a party to such suits, actions, or proceedings as may in his opinion be reasonably necessary for the protection, maintenance, operation, preservation or enhancement of the receivership estate, (including unlawful detainer actions, defense of mechanic's liens actions, abatement of nuisances, and other ordinary and usual proceedings incident to the management of a golf course and commercial property), to employ counsel as may be necessary for such proceedings, and to thereafter report to the Court at reasonable intervals upon such proceedings. Prior to initiating or defending any unusual or non-routine suits, actions, or proceedings, the Receiver shall consult with counsel for the Parties to the litigation, and if consensus is not reached, shall obtain an order from the Court concerning the initiation or defense of such suits, actions, or proceedings;
4.8. Demand, receive and keep safely in its possession, all monies hereafter received from the Property and the personal property of Owner located on the Property, or their operation and held by persons in possession of, or concerned with the management of the Property; and also records, books of account, rent schedules, ledgers and other documents pertaining to the operation of the Property, and all persons now or hereafter having possession of any of the same are ordered and directed to deliver possession thereof to the Receiver;
4.9. In addition to the reports required under paragraph 16 below, provide to all Parties an accounting of the books and records of all operations of the Property not less than once every three months.
5. Except as provided herein, no utility may alter, refuse, or discontinue service to the Receiver solely on the basis of his appointment to operate the Property, or because a debt owed by the Owner of the Property to such utility for service rendered before the date of this Order was not paid when due. Such utility may alter, refuse, or discontinue service if the Receiver, within 30 days of the date of this Order, has not furnished adequate assurance of payment for service after such date. On request of the Receiver, or other party in interest, the Court may make further orders to provide said utility with adequate assurance of payment.
6. All income tax reporting and payments whether for periods prior to, or during the term of the Receivership, shall remain the obligation of the Owner or other entities previously using or operating the Property. Receiver shall bear no liability for the failure of the Owner of the Property to report said income to taxing authorities or pay the taxes associated with such income. The Receiver shall supply, within 10 days of any request by the Owner, copies of all documents in his possession which are deemed necessary by the Owner or other entities for the preparation of their taxes. The Receiver shall bear no liability for the failure of such persons to report said income to taxing authorities or pay the taxes associated with such income.
7. Monies coming into the possession of the Receiver, not expended by it for any purpose herein authorized, shall be deposited in a branch of any convenient financial institution selected by him, which is insured by the FDIC, to be held subject to such orders as the Court may hereafter make.
8. Owner shall notify the Receiver at the time the Receiver takes possession of the Property as to the insurance coverage thereon. If sufficient insurance coverage does exist, Owner shall be responsible and is hereby ordered to use best efforts to cause the Receiver to be named as an additional named insured on each and every such policy for the entire period the Receiver shall be in possession of the Property. If sufficient insurance coverage does not exist, it is hereby ordered that the Receiver shall have thirty (30) working days from his appointment to procure adequate insurance on the Property, provided that he has funds available to do so pursuant to paragraph 4 of this Order; during such period, the Receiver shall not be personally responsible for claims arising with respect to the Property, or for the procurement of insurance unless such claims are the direct result of any action or inaction on the Receiver's behalf. The Receiver shall consult with Plaintiff Wachovia relative to the type and adequacy of insurance needed. If the Receiver discovers that sufficient insurance coverage does not exist, the Receiver shall immediately notify the Court and the parties to this litigation in writing of the lack of adequate insurance coverage for the Property.
9. The Receiver, or any party to the action, may from time to time, and on due notice to all parties, whether by ex parte application pursuant to the requirements of local court rules, or by noticed motion, make application to the Court for further orders instructing the Receiver.
10. As of the Effective Date, Defendants WINCHESTER PROPERTIES, LLC; WINCHESTER COUNTRY CLUB, LLC; CLINTON C. MYERS; CLINTON C. MYERS, as the Trustee of the CLINTON CHARLES MYERS REVOCABLE TRUST Dated 03/07/89; MYERS HOMES OF CALIFORNIA, LLC; and MYERS HOMES, INC., and their agents, assignees, lessees, employees, and independent contractors, and any persons or entities operating the Property on behalf of or with permission of Owner are, pending further order of the Court, forthwith enjoined and restrained from interfering in any manner with the Receiver in the operation and management of the Property; or from collecting, receiving or disposing of Owner's monies, rents, issues, profits, or personalty or improvements related to or which comprise the Property, or the yield thereof.
11. The Sheriff of the County of Placer, State of California, is authorized to assist the Receiver in every capacity in which said Sheriff's assistance may be required in order to enable the Receiver to take and safely keep possession and control of the Property.
12. The primary purpose of the Receiver shall be to preserve the physical Property from physical deterioration and maintain essential utilities and services to protect the Property. The Receiver is also authorized to utilize receipts from the Property to pay secured real property taxes and all liens and encumbrances secured by the Property entrusted to the Receiver in the order of their priority. The Receiver shall promptly give written notice to all parties to this action of any such payments.
13. The Receiver shall be entitled to interim compensation for its services at its usual and normal hourly rates, which for the Receiver shall not exceed $415.00 per hour, subject to final Court approval as hereafter set forth. The Receiver may have his employees, or employees of the Douglas Wilson Companies, perform services for the receivership estate or Property at their normal hourly rate pursuant to the fee schedule attached hereto as Exhibit C. In addition, the Receiver shall be reimbursed for all reasonable expenses incurred by the Receiver on behalf of the receivership estate or Property. The Receiver shall file with the Court and serve upon counsel of record (except Receiver's counsel) written notice of the amount to be paid to each payee and the services rendered or expenses incurred. If any party so noticed does not object to the payment of such fees or expenses within ten (10) days from service by delivering written objections to the Receiver specifying the items or services objected to and the specific reasons why such items or services should not be paid, the Receiver may pay all fees and expenses to which no objection was made. If objections have been timely made, the Receiver may at its election, immediately file a motion upon notice to counsel of record for authority to pay such fees or expenses objected to, or wait until such later date as the Receiver may choose to file a motion for authority to pay such fees and reimburse such expenses from the assets and Income of the receivership estate. Despite the periodic payment of Receiver's fees and administrative expenses, the statements of said fees and expenses shall be submitted to the Court, for its approval and confirmation, in the form of either a stipulation among the parties, or Receiver's final account and report. The interim fees paid shall be subject to final approval by the Court and the Court retains jurisdiction to award a greater or lesser amount as the full, fair and final value of such services.
14. The Receiver is authorized and empowered to (a) execute and prepare all documents and to perform all acts, either in the name of the parties, or in the Receiver's own name, which are necessary or incidental to preserving, protecting, managing and/or controlling the receivership estate, and (b) do all things and incur risks and obligations ordinarily done or incurred by Owner; provided, however, that no such risk or obligation shall be the personal risk or obligation of the Receiver or of Douglas Wilson Companies, but solely the risk or obligation of the receivership estate or the Property.
15. Within thirty (30) days after qualification hereunder, the Receiver shall file an inventory of all of the Property of which he has taken possession pursuant to this Order. In addition, the Receiver shall comply with all applicable federal rules pertinent to receiverships and to the extent applicable, all rules set forth in California Rules of Court §§ 3.1175 through 3.1184, including, without limitation, the furnishing of monthly reports to the parties.
16. As soon as is practicable after the receivership terminates, the Receiver shall file, serve, and set for hearing in this Department his Final Report and Account. Notice must be given to all persons, of whom the Receiver is aware who have potential claims against the receivership estate. Any motion to approve the final report and accounting, and for discharge of the Receiver, shall contain a summary of the receivership accounting including an enumeration, by major categories, of total revenues and total expenditures, the net amount of any surplus or deficit with supporting facts, a declaration under penalty of perjury of the basis for the termination of the receivership, and evidence to support an order for the distribution of any surplus, or payment of any deficit, in the receivership estate.
17. No individual or entity may sue the Receiver without first obtaining the permission of this Court.
18. The Receiver's authority is over the Owner's Property and does not extend to real or personal property of other persons other than Owner.
IT IS FURTHER ORDERED that:
1. In addition to all of the powers and responsibilities set forth above, the Receiver shall, every three months, render to the Court reports of the proceedings and accountings with respect to all of the acts and things done by it and all monies received and expended by him or his agents.
2. On and after the Effective Date, Owner, and Owner's agents, servants, directors, officers, affiliates, employees, attorneys, assignees, lessees, representatives, and all other persons and entities acting in concert with Owner, or any of them, shall be and hereby are, enjoined and restrained from engaging in or performing directly, or indirectly, any of the following acts:
(a) Expending, disbursing, transferring, assigning, selling, conveying, devising, pledging, mortgaging, creating a security interest in, encumbering, concealing or in any manner whatsoever destroying or disposing of the whole or any part of the assets of the receivership estate derived from the Property;
(b) Doing any act which will, or which will tend to, impair, defeat, divert, prevent or prejudice the preservation of the proceeds of the receivership estate in whatever form the interest is held or used from and after the date of this Order;
(c) Destroying, concealing, transferring or failing to preserve any document which evidences or pertains to the disposition of the receivership estate, or any part thereof.
3. If Owner files a bankruptcy case during the receivership, Wachovia shall give notice of the bankruptcy case to the Court, to all parties, and to the Receiver by the close of the next business day after the day on which Wachovia receives notice of the bankruptcy filing. If the Receiver receives notice that the bankruptcy has been filed and the bankruptcy estate includes property that is the subject of this order, the Receiver shall have the following duties:
(a) Turn over property if no relief from stay is sought. The Receiver shall immediately contact the party who obtained the appointment of the Receiver and determine whether that party intends to move in the bankruptcy court for an order for (1) relief from automatic stay, and (2) relief from the Receiver's obligation to turn over the Subject Property ( 11 U.S.C., § 543). If the party has no intention to make such a motion, the Receiver shall immediately turn over the property to the appropriate entity — either to the trustee in bankruptcy if one has been appointed or, if not, to the debtor in possession — and otherwise comply with 11 United States Code section 543.
(b) Remain in possession pending resolution. If the party who obtained the receivership intends to seek relief immediately from both the automatic stay and the Receiver's obligation to turn over the Property, the Receiver may seek an order from the Bankruptcy Court to remain in possession and preserve the Property pending the ruling on those motions ( 11 U.S.C., § 543(a)). Under the foregoing circumstances, the Receiver's authority to preserve the Property shall be limited as follows:
1. The Receiver may continue to collect Income;
2. The Receiver may make only those disbursements necessary to preserve and protect the Property;
3. The Receiver shall not execute any new leases or other long-term contracts; and
4. The Receiver shall do nothing that would effect a material change in the circumstances of the Property.
(c) Retain bankruptcy counsel. The Receiver may petition the court to retain legal counsel to assist the receiver with issues arising out of the bankruptcy proceedings that affect the receivership.
GOOD CAUSE APPEARING, APPOINTMENT OF THE RECEIVER IN ACCORDANCE WITH THE PROVISIONS ABOVE IS SO ORDERED.
EXHIBIT "A" LEGAL DESCRIPTION
All that certain real property situated in the State of California, County of Placer, and described as follows:
PARCEL ONE:
Lots A, B, D, G and AD, as shown and designated on the Plat of "Winchester Phase-1", filed for record in the office of the Placer County Recorder, on January 15, 1999, in Book "V" of Maps, at Page 25, Official Records of Placer County.
PARCEL TWO-A:
Lot C, as shown and designated on the Plat of "Winchester Phase-1", filed for record in the Office of the Placer County Recorder, on January 15, 1999, in Book "V" of Maps, at Page 25, Official Records of Placer County.
PARCEL TWO-B:
A portion of the tract of land shown and designated as lot AG on the Plat of "Winchester Phase 1", filed Book V of Maps, Page 25, Placer County Records, located in Section 13, Township 13 North, Range 8 East, M.D.M., Placer County, California.
Beginning at a point on the Westerly line of the above-described Lot AG and from said point a 3 inch diameter capped iron pipe stamped 'L.S. 3639' marking the center quarter corner of the above described Section 13 bears the following three (3) consecutive courses and distances: (1) South 61°3706 East for a distance of 520.20 feet; (2) South 00°4641 West for a distance of 58.70 feet; and (3) North 89°3259 East for a distance of 138.72 feet; thence from the point of beginning North 07°5700 East along said Westerly line for a distance of 77.12 feet; thence leaving said Westerly line South 40°2647 East for a distance of 15.75 feet; thence South 74°5119 East for a distance of 44.40 feet; thence South 10°2705 West for a distance of 53.76 feet; thence North 84°4253 West for a distance of 38.88 feet; thence South 77°0401 West for a distance of 15.68 feet to the point of beginning.
PARCEL THREE:
Lot E as shown and designated on the Plat of "Winchester Phase-1" filed for record in the office of the Placer County Recorder, on January 15, 1999, in Book "V" of Maps, at Page 25, Official Records of Placer County.
EXCEPTING THEREFROM all those portions of said LOT E described in the following six parcels:
EXCEPTION PARCEL ONE:
Beginning at a three quarter inch diameter capped iron pin stamped L.S. 6021 marking the Easterly most corner of the tract of land shown and designated as Lot 219 on the Plat of Winchester Phase II filed in Book W of Maps, at Page 96, Placer County Records; thence from the point of beginning North 68°4709 West along the Northerly line of said Lot 219 for a distance of 288.01 feet; thence leaving said Northerly line North 21°1251 East for a distance of 50.00 feet; thence South 58°5614 East for a distance of 292.32 feet to the point of beginning.
EXCEPTION PARCEL TWO:
Beginning at the Northwesterly corner of the tract of land to be described hereby, and from said point to a three quarter inch diameter capped iron pin stamped L.S. 6596 marking the Northwesterly corner of the tract of land shown and designated as Lot 220 on the plat of Winchester Phase II, filed in Book W of Maps, at Page 96, Placer County Records bears the following two consecutive courses and distances: (1) South 21°1251 West for a distance of 50.00 feet to a point on the Northerly line of the tract of land shown and designated as Lot 221 on said Plat of Winchester Phase II; and (2) South 68°4709 East along said Northerly line of a distance of 22.00 feet; thence from the point of beginning South 68°4709 East for a distance of 180.03 feet; thence South 21°1251 West for a distance of 50.00 feet to a point on the Northerly line of the tract of land shown and designated as Lot 219 on said plat of Winchester Phase II; thence North 68°4709 West along the Northerly lines of said Lots 219,220 and 221 for a distance of 180.03 feet; thence North 21°1251 East for a distance of 50.00 feet to the point of beginning.
EXCEPTION PARCEL THREE:
Beginning at a three quarter inch diameter capped iron pin stamped L.S. 6021 marking the Northwesterly corner of the tract of land shown and designated as Lot 222 on the Plat of Winchester Phase II filed in Book W of Maps, at Page 96, Placer County Records; thence from the point of beginning North 04°5258 East for a distance of 70.00 feet; thence South 70°1007 East for a distance of 446.05 feet; thence South 27°5847 West for a distance of 70.00 feet to a point on the Northerly line of said Lot 222; thence North 79°3236 West along said Northerly line for a distance of 418.17 feet to the point of beginning.
EXCEPTION PARCEL FOUR:
Beginning at the Northwesterly corner of the tract of land to be described hereby, and from said point a three quarter inch diameter capped iron pin stamped L.S. 6596 marking the Northwesterly corner of the tract of land shown and designated as Lot 221 on the plat of Winchester Phase II filed in Book W of Maps, at Page 96, Placer County Records bears the following two consecutive courses and distance: (I) South 27°5847 West for a distance of 70.00 feet to a point on the Northerly line of the tract of land shown and designated as Lot 222 on said Plat of Winchester Phase II; and (2) South 79°3236 West along said Northerly line for a distance of 11.00 feet;
Thence from the point of beginning South 74°3551 East for a distance of 194.30 feet; thence South 68°4709 East for a distance of 42.74 feet; thence South 21°1251 West for a distance of 50.00 feet to a point on the Northerly line of said Lot 221; thence along said Northerly line the following three (3) consecutive courses and distances: (1) North 68°4709 West for a distance of 38.03 feet; (2) North 79°3236 West for a distance of 198.94 feet to the Northwest corner of said Lot 221; and (3) North 79°3236 West along the Northerly line of said Lot 222 for a distance of 11.00 feet; thence leaving said Northerly line North 27°5847 East for a distance of 70.00 feet to the point of beginning.
EXCEPTION PARCEL FIVE:
Beginning at the Northerly most corner of the tract of land to be described hereby, a point on the Westerly line of the above described Lot "E" at the Northerly terminus of the course shown as North 51°4102 West 431.65 feet, and from said point a three-quarter inch diameter iron pin with a plastic cap stamped 'LS 6021' marking the Northerly most corner of the above described Lot "E" bears North 13°0226 East for a distance of 305.60 feet; thence from the point of beginning, leaving said Westerly line South 56°1848 East for a distance of 433.64 feet; thence South 44°2033 East for a distance of 602.37 feet; thence South 69°1034 West for a distance of 100.00 feet to a point on the Westerly line of said Lot "E"; thence along said Westerly line for the following two consecutive courses and distances: (1) North 38°3131 West for a distance of 561.45 feet; and (2) North 51°4102 West for a distance of 431.65 feet to a point of beginning.
EXCEPTION PARCEL SIX:
Beginning at a point on the Southerly line of the above described Lot "E", a point coincident with the Northwest corner of the tract of land shown and designated as Lot 222 on the plat of Winchester Phase II filed in Book W of Maps, at Page 96, Placer County Records, marked by a three quarter inch diameter capped iron pin stamped L.S. 6021; thence from the point of beginning North 26°2837 West along said Southerly line for a distance of 157.11 feet; thence leaving said Southerly line South 46°5942 East for a distance of 103.93 feet; thence South 04°5258 West for a distance of 70.00 feet to the point of beginning.
PARCEL FOUR-A:
Lot F, as shown and delineated on the Plat of "Winchester Phase I", filed for record in the office of the Placer County Recorder, on January 15, 1999, in Book "V" of Maps, at Page 25, Official Records of Placer County.
EXCEPTING THEREFROM all those portions of said Lot F as described in the following two parcels:
EXCEPTION PARCEL ONE: (Area A)
Beginning at an angle point on the Northerly line of the above described Lot F at the Southerly terminus of the course shown as North 32°1841 East 583.95 feet, and from said point a drill steel tagged R.C.E. 18447 marking the North one-quarter corner of the Above described Section 11 bears the following two consecutive courses and distances: (1) North 32°1841 East along said Northerly line for a distance of 583.95 feet; and (2) North 79°4339 East for a distance of 411.38 feet; thence from the point of beginning along the Westerly and Northerly lines of said Lot F the following two (2) consecutive courses and distances: (1) North 32°1841 East for a distance of 583.95 feet; and (2) along the are of a non-tangent curve to the right having a radius of 300.00 feet, a central angle of 23°2449, a length of 122.59 feet and a chord bearing South 75°2733 East for a distance of 121.74 feet; thence leaving said Northerly line, South 42°5304 West for a distance of 631.83 feet to the point of beginning.
EXCEPTION PARCEL TWO: (Area B)
Beginning at an angle point on the Easterly line of the above described Lot F at the Southerly terminus of the course shown as North 35°4607 East 570.24 feet, and from said point a drill steel tagged R.C.E. 18447 marking the North one-quarter corner of the above described Section 11 bears the following two consecutive courses and distances: (1) North 35°4607 East along said Easterly line for a distance of 570.24 feet; and (2) North 17°4146 East for a distance of 393.55 feet; thence from the point of beginning, leaving said Easterly line North 26°4534 East for a distance of 670.28 feet to a point on the Northerly line of said Lot F; thence, along said Northerly line, along the arc of a non-tangent curve to the right, having a radius of 300.00 feet, a central angle of 26°5225, a length of 140.71 feet and a chord bearing South 13°0402 East for a distance of 139.42 feet to an angle point on the Easterly line of said Lot F; thence South 35°4607 West along said Easterly line for a distance of 570.24 feet to the point of beginning.
PARCEL FOUR-B:
A portion of the tract of land shown an designated as Lot AA on the plat of Winchester Phase-1, filed in Book V of Maps, at Page 25, Placer County Records, located in Section 11, Township 13 North, Range 8 East, Placer County, California.
Beginning at an angle point on the West line of said Lot AA, a point on the Westerly line of the above described Section 11, and from said point a 2 inch diameter capped iron pipe stamped L.S. 3062 marking the Northwest corner of said Section 11 bears North 00°5850 West for a distance of 1496.40 feet; thence from the point of beginning along the Northerly line of said Lot AA, being coincident with the Southerly line of Lot F as described in the above Area A and Area B, the following three (3) consecutive courses and distances: (1) North 88°1042 East for a distance of 286.40 feet; (2) South 86°0702 East for a distance of 319.96 feet; and (3) South 61°1619 East for a distance of 573.18 feet; thence leaving said Northerly line North 87°2223 West for a distance of 1105.20 feet to a point on the Westerly line of said Section 11; thence North 00°5850 West along said Westerly line for a distance of 237.44 feet to the point of beginning.
PARCEL FIVE:
An exclusive easement for golf cart paths, and a non-exclusive easement for access to golf course, over spray, drainage and golf ball intrusion, maintenance, landscaping, signs and tournaments on over and across that certain property described in Grant Deed to Winchester Community Association, a California Non-profit Mutual Benefit Corporation, recorded January 15, 1999, in Series No. 99-0003822, Official Records.
PARCEL SIX:
A non-exclusive easement for a lake and water pipeline, subject to the terms conditions and provisions as set forth in instrument entitled "Lake Easement Agreement", the location of said easement being set forth on a Map attached to the above referred to instrument, recorded April 23, 1999, in Series No. 99-0036090, Official Records.
PARCEL SEVEN:
An easement for multipurpose trail purposes for pedestrians, golf carts and golf related equipment ingress and egress, on, over and across that certain property described in "Multipurpose Trail Easement", executed by Winchester Properties, LLC, recorded December 19, 2001, in Series No. 2001-0137103, Official Records.
PARCEL EIGHT:
A non-exclusive easement for golf course purpose on, over and across that certain property described in Grant Deed to Michael G. Inkster and Karen L. Inkster, husband and wife, recorded March 14, 2002, in Series No. 2002-0028427, Official Records.
APN's: 058-010-004,008, and 021 058-020-061,064 058-030-037,038 058-043-018EXHIBIT "B" DESCRIPTION OF PERSONAL PROPERTY
All of Trustor's assets, including without limitation, "Account", "Cash proceeds", "Chattel paper", "Collateral", "Deposit account", "Electronic chattel paper", "Equipment", "Fixtures", "General intangibles", "Goods", "Instrument", "Inventory", "Investment property", "Letter-of-credit right", "Noncash proceeds", "Proceeds", and "Tangible chattel paper", as defined in the Commercial Code. Such assets include without limitation,(a) All persona] property (including, without limitation, all goods, supplies, equipment, furniture, furnishings, fixtures, machinery, inventory, and construction materials in which Trustor now or hereafter acquires an interest or right, which is now or hereafter located on or affixed to the Property or the Improvements or used or useful in the operation, use, or occupancy thereof or the construction of any Improvements thereon, together with any interest of Trustor in and to personal property which is leased or subject to any superior security interest, and all books, records, leases and other agreements, documents, and instruments of whatever kind or character, relating to the Property, Improvements, or such personal property;
(b) All fees, income, rents, issues, profits, earnings, receipts, royalties, and revenues which, after the date hereof and while any portion of the Obligations remains unpaid or unperformed, may accrue from such personal property or any part thereof or from the Property, the Improvements or any other part of the Trust Estate, or which may be received or receivable by Trustor from any hiring, using, letting, leasing, subhiring, subletting, subleasing, occupancy, operation, or use thereof;
(c) All of Trustor's present and future rights to receive payments of money, services, or property, including, without limitation, rights to all deposits from tenants of the Property or Improvements, rights to receive capital contributions or subscriptions from Trustor's partners or shareholders, amounts payable on account of the sale of partnership interests in Trustor or the capital stock of Trustor, accounts and other accounts receivable, deposit accounts, chattel paper, notes, drafts, contract rights, instruments, general intangibles, and principal, interest and payments due on account of goods sold or leased, services rendered, loans made or credit extended, together with title to or interest in all agreements, documents, and instruments, evidencing, securing or guarantying the same;
(d) All other intangible property and rights relating to the Property, the Improvements, the personal property described in Paragraph (a) above or the operation, occupancy, or use thereof, including, without limitation, all governmental and non-governmental permits, licenses, and approvals relating to construction on or operation, occupancy, or use of the Property or Improvements, all names under or by which the Property or Improvements may at any time be operated or known, all rights to carry on business under any such names, or any variant thereof, all trade names and trademarks relating in any way to the Property or the Improvements, and all good will in any way relating to the Property or the Improvements;
(e) Trustor's rights under all insurance policies covering the Property, the Improvements, the Personal Property, and the other parts of the Trust Estate and any and all proceeds, loss payments, and premium refunds payable regarding the same;
(f) All reserves, deferred payments, deposits, refunds, cost savings, and payments of any kind relating to the construction of any Improvements on the Property;
(g) All water stock relating to the Property;
(h) All causes of action, claims, compensation, and recoveries for any damage to, destruction of, or condemnation or taking of the Property, the Improvements, the Personal Property, or any other part of the Trust Estate, or for any conveyance in lieu thereof, whether direct or consequential, or for any damage or injury to the Property, the Improvements, the Personal Property, or any other part of the Trust Estate, or for any loss or diminution in value of the Property, the Improvements, the Personal Property, or any other part of the Trust Estate;
(i) All architectural, structural, mechanical, and engineering plans and specifications prepared for construction of Improvements or extraction of minerals or gravel from the Property and all studies, data, and drawings related thereto; and also all contracts and agreements of the Trustor relating to the aforesaid plans and specifications or to the aforesaid studies, data, and drawings or to the construction of Improvements on or extraction of minerals or gravel from the Property, including without limitation, (i) all development agreements, construction agreements, grading contracts, purchase agreements; and (ii) those plans and specifications, contracts and permits assigned to Lender pursuant to that certain Assignment of Plans and Specifications, Contracts and Permits dated as the same date as the Deed of Trust;
(j) All rights (but none of the obligations) of Trustor under any agreements affecting the Property, the Improvements, or the master planned community of which the Property and the Improvements are a part, whether now existing or hereafter arising, and any management agreement between Trustor and/or its authorized representatives with a manager of the Property selected by the Trustor and/or its authorized representatives in connection with the management and development of the Property;
(k) All proceeds from sale or disposition of any of the aforesaid collateral;
(j) All Trustor's rights in proceeds of the loan evidenced by the Notes; and
(m) All of Trustor's "Deposit accounts" (as that term is defined by the California Commercial Code) maintained by Trustor at Lender's offices.
All capitalized terms shall have the meaning set forth in the Loan Agreement and other Loan Documents, including without limitation, the Deed of Trust, unless otherwise defined herein.