Promissory note



 EXHIBIT 10.9 
 PROMISSORY NOTE 
  

			
	 U.S. $24,100,000.00
	  	December 1, 2005

 FOR VALUE RECEIVED, and at the times
hereinafter specified, RANCON REALTY FUND IV SUBSIDIARY LLC, a Delaware limited liability company (“Maker”), whose address is 400 South El Camino Real, 11th Floor, San Mateo, California 94402, hereby promises to pay to the order of THE VARIABLE ANNUITY LIFE INSURANCE COMPANY, a Texas corporation (hereinafter referred to, together with each subsequent holder hereof, as
“Holder”), at c/o AIG Global Investment Corp., 1 SunAmerica Center, 38th Floor, Century City, Los Angels, California 90067-6022, or at
such other address as may be designated from time to time hereafter by any Holder, the principal sum of TWENTY FOUR MILLION ONE HUNDRED THOUSAND AND NO/100THS DOLLARS ($24,100,000.00), together with interest on the principal balance outstanding from
time to time, as hereinafter provided, in lawful money of the United States of America. 
 By its execution and delivery of this promissory
note (this “Note”), Maker covenants and agrees as follows: 
 1. Interest Rate and Payments. 
 (a) The balance of principal outstanding from time to time under this Note shall bear interest at the rate of five and forty-six one-hundredths percent
(5.46%) per annum (the “Original Interest Rate”), based on a three hundred sixty (360) day year composed of twelve (12) months of thirty (30) days each; however, interest for partial months shall be calculated by
multiplying the principal balance of this Note by the applicable interest rate (i.e., the Original Interest Rate or the New Rate (hereinafter defined)), dividing the product by three hundred sixty (360), and multiplying that result by the actual
number of days elapsed. 
 (b) Interest only shall be payable on the date the loan evidenced by this Note (the “Loan”) is funded
by Holder, in advance, for the period from and including the date of funding through and including December 31, 2005. 
 (c) Commencing
on February 1, 2006 and on the first day of each month thereafter through and including December 1, 2015 combined payments of principal and interest shall be payable, in arrears, in the amount of $136,232.94 each (such amount representing
an amount sufficient to fully amortize the original principal amount of this Note over a three hundred sixty (360) month period (the “Amortization Period”)). 
 (d) The entire outstanding principal balance of this Note, together with all accrued and unpaid interest and all other sums due hereunder, shall be due
and payable in full on January 1, 2016 (the “Original Maturity Date”). 
  

 1 








 2. Holder’s Extension Option: Net Operating Income. 
 (a) If Maker shall fail to pay the outstanding principal balance of this Note and all accrued interest and other charges due hereon at the Original
Maturity Date, Holder shall have the right, at Holder’s sole option and discretion, to extend the term of the Loan for an additional period of five (5) years (the “Extension Term”). If Holder elects to extend the term of the
Loan, Maker shall pay all fees of Holder incurred in connection with such extension, including, but not limited to, attorneys’ fees and title insurance premiums. Maker shall execute all documents reasonably requested by Holder to evidence and
secure the Loan, as extended, and shall obtain and provide to Holder any title insurance policy or endorsement requested by Holder. 
 (b)
Should Holder elect to extend the term of the Loan as provided above, Holder shall (i) reset the interest rate borne by the then-existing principal balance of the Loan to a rate per annum (the “New Rate”) equal to the greater of
(A) the Original Interest Rate, or (B) Holder’s (or comparable lenders’, if Holder is no longer making such loans) then-prevailing interest rate for five (5) year loans secured by properties similar to the Property
(hereinafter defined), as determined by Holder in its sole discretion; (ii) re-amortize the then-existing principal balance of the Loan over the remaining portion of the Amortization Period (the “New Amortization Period”);
(iii) have the right to require Maker to enter into modifications of the non-economic terms of the Loan Documents as Holder may request (the ‘Won-Economic Modifications”); and (iv) notwithstanding any provision set forth in the
Loan Documents to the contrary, have the right to require Maker to make monthly payments into escrow for insurance premiums and real property taxes, assessments and similar governmental charges. Hence, monthly principal and interest payments during
the Extension Term shall be based upon the New Rate, and calculated to fully amortize the outstanding principal balance of the Loan over the New Amortization Period. 
 (c) If Holder elects to extend the term of the Loan, Holder shall advise Maker of the New Rate within fifteen (15) days following the Original Maturity Date. 
 (d) In addition to the required monthly payments of principal and interest set forth above, commencing on the first day of the second month following
the Original Maturity Date and continuing on the first day of each month thereafter during the Extension Term (each an “Additional Payment Date”), Maker shall make monthly payments to Holder in an amount equal to all Net Operating Income
(hereinafter defined) attributable to the Property for the calendar month ending on the last day of the month that is two months preceding each such Additional Payment Date. For example, assuming the Original Maturity Date is January 1, then
Net Operating Income for the period from January 1 through January 31 shall be payable to Holder on March 1; Net Operating Income for the period from February 1 through February 28 shall be payable to Holder on April 1,
and so on. 
 (e) Holder shall deposit all such Net Operating Income received from Maker into an account or accounts maintained at a
financial institution chosen by Holder or its servicer in its sole discretion (the “Deposit Account”) and all such funds shall be invested in a manner acceptable to Holder in its sole discretion. All interest, dividends and earnings
credited to the Deposit Account shall be held and applied in accordance with the terms hereof. 
  

 2 








 (f) On the third Additional Payment Date and on each third Additional Payment Date thereafter, Holder
shall apply all Excess Funds (hereinafter defined), if any, to prepayment of amounts due under this Note, without premium or penalty. 
 (g)
As security for the repayment of the Loan and the performance of all other obligations of Maker under the Loan Documents, Maker hereby assigns, pledges, conveys, delivers, transfers and grants to Holder a first priority security interest in and to:
all Maker’s right, title and interest in and to the Deposit Account; all rights to payment from the Deposit Account and the money deposited therein or credited thereto (whether then due or in the future due and whether then or in the future on
deposit); all interest thereon; any certificates, instruments and securities, if any, representing the Deposit Account; all claims, demands, general intangibles, choses in action and other rights or interests of Maker in respect of the Deposit
Account; any monies then or at any time thereafter deposited therein; any increases, renewals, extensions, substitutions and replacements thereof; and all proceeds of the foregoing. 
 (h) From time to time, but not more frequently than monthly, Maker may request a disbursement (a “Disbursement”) from the Deposit Account for
capital expenses, tenant improvement expenses, leasing commissions and special contingency expenses. Holder may consent to or deny any such Disbursement in its sole discretion. 
 (i) Upon the occurrence of any Event of Default (hereinafter defined) (i) Maker shall not be entitled to any further Disbursement from the Deposit
Account; and (ii) Holder shall be entitled to take immediate possession and control of the Deposit Account (and all funds contained therein) and to pursue all of its rights and remedies available to Holder under the Loan Documents, at law and
in equity. 
 (j) All of the terms and conditions of the Loan shall apply during the Extension Term, except as expressly set forth above,
and except that no further extensions of the Loan shall be permitted. 
 (k) For the purposes of the foregoing: 
 (i) “Excess Funds” shall mean, on any Additional Payment Date, the amount of funds then existing in the Deposit Account
(including any Net Operating Income due on the applicable Additional Payment Date), less an amount equal to the sum of three regularly scheduled payments of principal and interest due on this Note; 
 (ii) “Net Operating Income” shall mean, for any particular period of time, Gross Revenue for the relevant period, less
Operating Expenses for the relevant period; provided, however, that if such amount is equal to or less than zero (0), Net Operating Income shall equal zero (0); 
 (iii) “Gross Revenue” shall mean all payments and other revenues (exclusive, however, of any payments attributable to sales
taxes) received by or on behalf of Maker from all sources related to the ownership or operation of the Property, including, but not limited to, rents, room charges, parking fees, interest, security deposits (unless required to be held in a
segregated account), business interruption insurance 

  

 3 








 
proceeds, operating expense pass-through revenues and common area maintenance charges, for the relevant period for which the calculation of Gross Revenue is
being made; and 
 (iv) “Operating Expenses” shall mean the sum of all ordinary and necessary operating expenses
actually paid by Maker in connection with the operation of the Property during the relevant period for which the calculation of Operating Expenses is being made, including, but not limited to, (a) payments made by Maker for taxes and insurance
required under the Loan Documents, and (b) monthly debt service payments as required under this Note. 
 3. Budgets During Extension
Term. 
 (a) Within fifteen (15) days following the Original Maturity Date and on or before December 1 of each subsequent
calendar year, Maker shall deliver to Holder a proposed revenue and expense budget for the Property for the remainder of the calendar year in which the Original Maturity Date occurs or the immediately succeeding calendar year (as applicable). Such
budget shall set forth Maker’s projection of Gross Revenue and Operating Expenses for the applicable calendar year, which shall be subject to Holder’s reasonable approval. Once a proposed budget has been reviewed and approved by Holder,
and Maker has made all revisions requested by Holder, if any, the revised budget shall be delivered to Holder and shall thereafter become the budget for the Property hereunder (the “Budget”) for the applicable calendar year. If Maker and
Holder are unable to agree upon a Budget for any calendar year, the budgeted Operating Expenses (excluding extraordinary items) provided in the Budget for the Property for the preceding calendar year shall be considered the Budget for the Property
for the subject calendar year until Maker and Holder agree upon a new Budget for such calendar year. 
 (b) During the Extension Term, Maker
shall operate the Property in accordance with the Budget for the applicable calendar year, and the total of expenditures relating to the Property exceeding one hundred and five percent (105%) of the aggregate of such expenses set forth in the
Budget for the applicable time period shall not be treated as Operating Expenses for the purposes of calculating “Net Operating Income,” without the prior written consent of Holder except for emergency expenditures which, in the
Maker’s good faith judgment, are reasonably necessary to protect, or avoid immediate danger to, life or property. 
 4. Reports
During Extension Term. 
 (a) During the Extension Term, Maker shall deliver to Holder all financial statements reasonably required by
Holder to calculate Net Operating Income, including, without limitation, a monthly statement to be delivered to Holder concurrently with Maker’s payment of Net Operating Income that sets forth the amount of Net Operating Income accompanying
such statement and Maker’s calculation of Net Operating Income for the relevant calendar month. Such statements shall be certified by an executive officer of Maker or Maker’s manager, managing member or general partner (as applicable) as
having been prepared in accordance with the terms hereof and to be true, accurate and complete in all material respects. 
  

 4 








 (b) In addition, on or before February 1 of each calendar year during the Extension Term, Maker
shall submit to Holder an annual income and expense statement for the Property which shall include the calculation of Gross Revenue, Operating Expenses and Net Operating Income for the preceding calendar year and shall be accompanied by Maker’s
reconciliation of any difference between the actual aggregate amount of the Net Operating Income for such calendar year and the aggregate amount of Net Operating Income for such calendar year actually remitted to Holder. All such statements shall be
certified by an executive officer of Maker or Maker’s manager, managing member or general partner (as applicable) as having been prepared in accordance with the terms hereof and to be true, accurate and complete in all material respects. If any
such annual financial statement discloses any inconsistency between the calculation of Net Operating Income and the amount of Net Operating Income actually remitted to Holder, Maker shall immediately remit to Holder the amount of any underpayment of
Net Operating Income for such calendar year or, in the event of an overpayment by Maker, such amount may be withheld from any subsequent payment of Net Operating Income required hereunder. 
 (c) Holder may notify Maker within ninety (90) days after receipt of any statement or report required hereunder that Holder disputes any
computation or item contained in any portion of such statement or report. If Holder so notifies Maker, Holder and Maker shall meet in good faith within twenty (20) days after Holder’s notice to Maker to resolve such disputed items. If,
despite such good faith efforts, the parties are unable to resolve the dispute at such meeting or within ten (10) days thereafter, the items shall be resolved by an independent certified public accountant designated by Holder within fifteen
(15) days after such ten (10) day period. The determination of such accountant shall be final. All fees of such accountant shall be paid by Maker. Maker shall remit to Holder any additional amount of Net Operating Income found to be due
for such periods within ten (10) days after the resolution of such dispute by the parties or the accountant’s determination, as applicable. The amount of any overpayment found to have been made for such periods may be withheld from any
required future remittance of Net Operating Income. 
 (d) Maker shall at all times keep and maintain full and accurate books of account and
records adequate to reflect correctly all items required in order to calculate Net Operating Income. 
 5. Loan Prepayment.

 (a) During the first two (2) years after the date of this Note, Maker shall have no right to prepay all or any part of this Note.

 (b) At any time after the second (2nd) anniversary of the date of this Note, Maker shall have the right to prepay the full principal amount of this Note and all accrued but unpaid interest hereon as of the date of
prepayment, and Maker shall, subject to the terms and conditions set forth in that certain Loan and Partial Release Agreement of even date herewith by and between Maker and Holder (the “Loan Agreement”), be permitted to make one or more
principal reduction payments in the amount of the Allocated Release Price in connection with a Permitted Release (as such terms are defined in the Loan Agreement), provided, in each case, that (i) Maker gives not less than thirty
(30) days’ prior written notice to Holder of Maker’s 

  

 5 








 
election to prepay this Note, and (ii) Maker pays a prepayment premium to Holder (A) in the case of prepayment in full, in an amount equal to the
greater of one percent (1%) of the outstanding principal balance of this Note or the Present Value of this Note (hereinafter defined), less the amount of principal being prepaid, calculated as of the prepayment date, and (B) in the case of
a partial prepayment in connection with a Permitted Release, in an amount equal to the percentage that such Allocated Release Price so applied to this Note bears to the entire then-existing principal balance of this Note, multiplied by the
prepayment premium that would be due if this Note were prepaid in full on such date. In connection with any Permitted Release, Holder shall re-amortize the then-outstanding principal balance of this Note over the remainder of the Amortization Period
and give notice to Maker in accordance with the terms of the Deed of Trust of such revised amortization schedule. 
 (c) Holder shall notify
Maker of the amount and basis of determination of the prepayment premium. Holder shall not be obligated to accept any prepayment of the principal balance of this Note unless such prepayment is accompanied by the applicable prepayment premium and all
accrued interest and other sums due under this Note. Maker may not prepay the Loan on a Friday or on any day preceding a public holiday, or the equivalent for banks generally under the laws of the State in which the Property is located (the
“State”). 
 (d) Except for (i) making payments of Excess Funds as described above, (ii) the application of insurance
proceeds or condemnation awards to the principal balance of this Note, as provided in the Deed of Trust (hereinafter defined), and (iii) partial prepayments made in connection with a Permitted Release (as defined in the Loan Agreement), in no
event shall Maker be permitted to make any partial prepayments of this Note. 
 (e) If Holder accelerates this Note upon an Event of
Default, then in addition to Maker’s obligation to pay the then outstanding principal balance of this Note and all accrued but unpaid interest thereon, Maker shall pay an additional amount equal to the prepayment premium that would be due to
Holder if Maker were voluntarily prepaying this Note at the time that such acceleration occurred, or if under the terms hereof no voluntary prepayment would be permissible on the date of such acceleration, Maker shall pay a prepayment premium
calculated as set forth in the Deed of Trust. 
 (f) For the purposes of the foregoing: 
 (i) The “Present Value of this Note” with respect to any prepayment of this Note, as of any date, shall be determined by
discounting all scheduled payments of principal and interest remaining to maturity of this Note, attributed to the amount being prepaid, at the Discount Rate. If prepayment occurs on a date other than a regularly scheduled payment date, the actual
number of days remaining from the prepayment date to the next regularly scheduled payment date will be used to discount within such period. 
 (ii) The “Discount Rate” is the rate which, when compounded monthly, is equivalent to the Treasury Rate, when compounded semi-annually. 
  

 6 








 (iii) The “Treasury Rate” is the semi-annual yield on the Treasury Constant
Maturity Series with maturity equal to the remaining weighted average life of this Note, for the week prior to the prepayment date, as reported in Federal Reserve Statistical Release H.15–Selected Interest Rates, conclusively determined by
Holder on the prepayment date. The rate will be determined by linear interpolation between the yields reported in Release H.15, if necessary. In the event Release H.15 is no longer published, Holder shall select a comparable publication to determine
the Treasury Rate. 
 (g) Holder shall not be obligated actually to reinvest the amount prepaid in any treasury obligations as a condition
precedent to receiving any prepayment premium. 
 (h) Notwithstanding the foregoing, (i) at any time during the ninety (90) day
period immediately prior to the Original Maturity Date and during the Extension Term, Maker shall have the right to prepay the fill principal amount of this Note and all accrued but unpaid interest thereon as of the date of prepayment, without
prepayment premium thereon, and (ii) no prepayment premium shall be due in connection with the application of any insurance proceeds or condemnation awards to the principal balance of this Note, as provided in the Deed of Trust. 
 6. Payments. Whenever any payment to be made under this Note shall be stated to be due on a Saturday, Sunday or public holiday or the equivalent
for banks generally under the laws of the State (any other day being a “Business Day”), such payment may be made on the next succeeding Business Day. 
 7. Default Rate. 
 (a) The entire balance of principal, interest, and other sums due upon the
maturity hereof, by acceleration or otherwise, shall bear interest from the date due until paid at the greater of (i) eighteen percent (18%) per annum and (ii) a per annum rate equal to five percent (5%) over the prime rate (for
corporate loans at large United States money center commercial banks) published in The Wall Street Journal on the first business day of each month (the “Default Rate”); provided, however, that such rate shall not exceed the maximum
permitted by applicable state or federal law. In the event The Wall Street Journal is no longer published or no longer publishes such prime rate, Holder shall select a comparable reference. 
 (b) If any payment under this Note is not made when due, interest shall accrue at the Default Rate from the date such payment was due until payment is
actually made. 
 8. Late Charges. In addition to interest as set forth herein, Maker shall pay to Holder a late charge equal to four
percent (4%) of any amounts due under this Note in the event any such amount is not paid when due. 
 9. Application of Payments.
All payments hereunder shall be applied first to the payment of late charges, if any, then to the payment of prepayment premiums, if any, then to the repayment of any sums advanced by Holder for the payment of any insurance premiums, 

  

 7 








 
taxes, assessments, or other charges against the property securing this Note (together with interest thereon at the Default Rate from the date of advance
until repaid), then to the payment of accrued and unpaid interest, and then to the reduction of principal. 
 10. Immediately Available
Funds. Payments under this Note shall be payable in immediately available funds without setoff, counterclaim or deduction of any kind, and shall be made by electronic funds transfer from a bank account established and maintained by Maker for
such purpose. 
 11. Security. This Note is secured by a Deed of Trust, Security Agreement, Fixture Filing, Financing Statement and
Assignment of Leases and Rents of even date herewith granted by Maker for the benefit of the named Holder hereof (the “Deed of Trust”) encumbering certain real property and improvements thereon comprising eight office and retail buildings
in the Tri-City Corporate Center, San Bernardino, California, as more particularly described in such Deed of Trust (the “Property”). 
 12. Certain Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Deed of Trust. 
 13. Event of Default. Each of the following events will constitute an event of default (an “Event of Default”) under this Note and under the Deed of Trust and each other Loan Document, and any Event
of Default under any Loan Document shall constitute an Event of Default hereunder and under each of the other Loan Documents: 
 (a) any
failure to pay when due any sum under Section 1 of this Note; 
 (b) any failure to pay when due any other sum hereunder, provided,
however, that such failure shall not constitute an Event of Default unless such failure continues for ten (10) days beyond the date that Holder delivers to Maker notice that such payment is due; 
 (c) any failure of Maker to properly perform any obligation contained herein or in any of the other Loan Documents (other than the obligation to make
payments under this Note or the other Loan Documents) and the continuance of such failure for a period of ten (10) days following written notice thereof from Holder to Maker; provided, however, that if such failure is not curable within such
ten (10) day period, then, so long as Maker commences to cure such failure within such ten (10) day period and is continually and diligently attempting to cure to completion, such failure shall not be an Event of Default unless such
failure remains uncured for ninety (90) days after such written notice to Maker; or 
 (d) if, at any time during the Extension Term,
Gross Revenue for any calendar month shall be less than ninety-three percent (93%) of the amount of projected Gross Revenue for such month set forth in the applicable Budget. 
 14. Acceleration. Upon the occurrence of any Event of Default, the entire balance of principal, accrued interest, and other sums owing hereunder
shall, at the option of Holder, become at once due and payable without notice or demand. Upon the occurrence of an Event of Default described in Section 13(d) hereof, Holder shall have the option, in its sole discretion, to either
(a) exercise any remedies available to it under the Loan Documents, at law or 

  

 8 








 
in equity, or (b) require Maker to submit a new proposed budget for Holder’s approval. If Holder agrees to accept such new proposed budget, then
such budget shall become the Budget for all purposes hereunder. 
 15. Conditions Precedent. Maker hereby certifies and declares that
all acts, conditions and things required to be done and performed and to have happened precedent to the creation and issuance of this Note, and to constitute this Note the legal, valid and binding obligation of Maker, enforceable in accordance with
the terms hereof, have been done and performed and happened in due and strict compliance with all applicable laws. 
 16. Certain Waivers
and Consents. Maker and all parties now or hereafter liable for the payment hereof, primarily or secondarily, directly or indirectly, and whether as endorser, guarantor, surety, or otherwise, hereby severally (a) waive presentment, demand,
protest, notice of protest and/or dishonor, and all other demands or notices of any sort whatever with respect to this Note, (b) consent to impairment or release of collateral, extensions of time for payment, and acceptance of partial payments
before, at, or after maturity, (c) waive any right to require Holder to proceed against any security for this Note before proceeding hereunder, (d) waive diligence in the collection of this Note or in filing suit on this Note, and
(e) agree to pay all costs and expenses, including reasonable attorneys’ fees, which may be incurred in the collection of this Note or any part thereof or in preserving, securing possession of, and realizing upon any security for this
Note. 
 17. Usury Savings Clause. The provisions of this Note and of all agreements between Maker and Holder are, whether now
existing or hereinafter made, hereby expressly limited so that in no contingency or event whatever, whether by reason of acceleration of the maturity hereof, prepayment, demand for payment or otherwise, shall the amount paid, or agreed to be paid,
to Holder for the use, forbearance, or detention of the principal hereof or interest hereon, which remains unpaid from time to time, exceed the maximum amount permissible under applicable law, it particularly being the intention of the parties
hereto to conform strictly to the laws of the State and Federal law, whichever is applicable. If from any circumstance whatever, the performance or fulfillment of any provision hereof or of any other agreement between Maker and Holder shall, at the
time performance or fulfillment of such provision is due, involve or purport to require any payment in excess of the limits prescribed by law, then the obligation to be performed or fulfilled is hereby reduced to the limit of such validity, and if
from any circumstance whatever Holder should ever receive as interest an amount which would exceed the highest lawful rate, the amount which would be excessive interest shall be applied to the reduction of the principal balance owing hereunder (or,
at Holder’s option, be paid over to Maker) and shall not be counted as interest. To the extent permitted by applicable law, determination of the legal maximum amount of interest shall at all times be made by amortizing, prorating, allocating
and spreading in equal parts during the period of the full stated term of this Note, all interest at any time contracted for, charged, or received from Maker in connection with this Note and all other agreements between Maker and Holder, so that the
actual rate of interest on account of the indebtedness represented by this Note is uniform throughout the term hereof. 
 18.
Non-Recourse; Exceptions to Non-Recourse. Nothing contained in this Note or any of the other Loan Documents shall be deemed to impair or limit Holder’s rights: in foreclosure proceedings or in any ancillary proceedings brought to
facilitate Holder’s foreclosure 

  

 9 








 
on the Property or any portion thereof or to exercise any specific rights or remedies afforded Holder under any other provisions of the Loan Documents or by
law or in equity, subject to the non-recourse provisions set forth below; to recover under any guarantee given in connection with the Loan; or to pursue any personal liability of Maker or any Guarantor under the Environmental Indemnity Agreement or
Section 5.10 of the Deed of Trust. Except as expressly set forth in this Section 18, the recourse of Holder with respect to the obligations evidenced by this Note shall be solely to the Property, Chattels and Intangible Personalty (as
defined in the Deed of Trust) and any other collateral given as security for the Loan: 
 (a) Notwithstanding anything to the contrary
contained in this Note or in any Loan Document, nothing shall be deemed in any way to impair, limit or prejudice the rights of Holder to collect or recover from Maker and Guarantor: (i) damages or costs (including without limitation reasonable
attorneys’ fees) incurred by Holder as a result of waste by Maker; (ii) any condemnation or insurance proceeds attributable to the Property which were not paid to Holder or used to restore the Property in accordance with the terms of the
Deed of Trust; (iii) any rents, profits, advances, rebates, prepaid rents or other similar sums attributable to the Property collected by or for Maker following an Event of Default (as defined in the Deed of Trust) and not properly applied to
the reasonable fixed and operating expenses of the Property, including payments of this Note and other sums due under the Loan Documents; (iv) any security deposits collected by or for Borrower and not applied in accordance with applicable
leases; (v) the amount of any accrued taxes, assessments, and/or utility charges affecting the Property (whether or not the same have been billed to Maker) that are either unpaid by Maker or advanced by Holder under the Deed of Trust;
(vi) any sums expended by Holder in fulfilling the obligations of Maker, as lessor, under any leases affecting the Property; (vii) the amount of any loss suffered by Holder (that would otherwise be covered by insurance) as a result of
Maker’s failure to maintain the insurance required under the terms of any Loan Document; (viii) the amount of any loss suffered by Holder as a result of any amendment, modification or termination of the lease to The University of Phoenix,
Inc., Countrywide Home Loans, Inc., Fidelity National Title Insurance Company, Circuit City Stores West Coast, Inc., Banner Bedding, Inc., PETsMART, Inc., CompUSA, Inc., and Salvesen, Inc. (collectively, the “Major Tenants”) or execution
or subsequent amendment, modification or termination of any lease for any space currently occupied by the Major Tenants without the prior written consent of Holder, if such consent is required under Section 5.3 of the Deed of Trust; 

(b) The agreement set forth in the introductory paragraph of this Section 18 to limit the personal liability of Maker shall become null and void
and be of no further force and effect, and Maker and each Guarantor shall be personally liable for the obligations evidenced by this Note, in the event (i) that the Property, or any part thereof or any interest therein, or any interest in
Maker, shall be further encumbered by a voluntary lien securing any obligation upon which Maker, any direct or indirect general partner, manager or managing member of Maker, any guarantor of the Loan, or any principal or affiliate of Maker shall be
personally liable for repayment, either as obligor or guarantor; (ii) of any breach or violation of Section 5.4, 5.5 or 5.7 of the Deed of Trust; (iii) of any fraud or material misrepresentation by Maker in connection with the
Property, the Loan Documents or the application made by Maker for the Loan; (iv) that Maker forfeits the Property or Chattels or any portion of the Property or Chattels due to criminal activity; and (v) of any attempt by Maker, any
Guarantor, or any other person directly or indirectly responsible for the management of Maker or 

  

 10 








 
liable for repayment of Maker’s obligations under the Loan (whether as maker, endorser, guarantor, surety, general partner or otherwise) to materially
delay any foreclosure against the Property, Chattels and/or Intangible Personalty or any other exercise by Holder of its remedies under the Loan Documents, which attempts shall include, without limitation, (A) any claim that any Loan Document
is invalid or unenforceable to an extent that would preclude any such foreclosure or other exercise of remedies, (B) Maker filing a petition in bankruptcy, Maker failing to oppose in good faith the entry of an order for relief pursuant to any
involuntary bankruptcy petition filed against it or Maker seeking any reorganization, liquidation, dissolution or similar relief under the bankruptcy laws of the United States or under any other similar federal, state or other statute relating to
relief from indebtedness, or (C) the appointment of a receiver, trustee or liquidator with respect to Maker or the Property or any part thereof. For purposes of the foregoing, “affiliate” shall mean any individual, corporation, trust,
partnership or any other person or entity controlled by, controlling or under common control with Maker. A person or entity of any nature shall be presumed to have control when it possesses the power, directly or indirectly, to direct, or cause the
direction of, the management or policies of another person or entity, whether through ownership of voting securities, by contract, or otherwise. 
 19. Severability. If any provision hereof or of any other document securing or related to the indebtedness evidenced hereby is, for any reason and to any extent, invalid or unenforceable, then neither the remainder of the document in
which such provision is contained, nor the application of the provision to other persons, entities, or circumstances, nor any other document referred to herein, shall be affected thereby, but instead shall be enforceable to the maximum extent
permitted by law. 
 20. Transfer of Note. Each provision of this Note shall be and remain in full force and effect notwithstanding
any negotiation or transfer hereof and any interest herein to any other Holder or participant. 
 21. Governing Law. Regardless of the
place of its execution, this Note shall be construed and enforced in accordance with the laws of the State. 
 22. Time of
Essence. Time is of the essence with respect to all of Maker’s obligations under this Note. 
 23. Remedies Cumulative. The
remedies provided to Holder in this Note, the Deed of Trust, and the other Loan Documents are cumulative and concurrent and may be exercised singly, successively or together against Maker, the Property, and other security, or any guarantor of this
Note, at the sole and absolute discretion of the Holder. 
 24. No Waiver. Holder shall not by any act or omission be deemed to waive
any of its rights or remedies hereunder unless such waiver is in writing and signed by the Holder and then only to the extent specifically set forth therein. A waiver of one event shall not be construed as continuing or as a bar to or waiver of any
right or remedy granted to Holder hereunder in connection with a subsequent event. 
 25. Joint and Several Obligation. If Maker is
more than one person or entity, then (a) all persons or entities comprising Maker are jointly and severally liable for all of the 

  

 11 








 
Maker’s obligations hereunder; (b) all representations, warranties, and covenants made by Maker shall be deemed representations, warranties, and
covenants of each of the persons or entities comprising Maker; (c) any breach, Default or Event of Default by any of the persons or entities comprising Maker hereunder shall be deemed to be a breach, Default, or Event of Default of Maker; and
(d) any reference herein contained to the knowledge or awareness of Maker shall mean the knowledge or awareness of any of the persons or entities comprising Maker. 
 26. WAIVER OF JURY TRIAL. MAKER AND HOLDER KNOWINGLY, IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM BASED ON
THIS NOTE, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE, THE DEED OF TRUST, OR ANY OTHER LOAN DOCUMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO OR TO ANY LOAN
DOCUMENT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR MAKER AND HOLDER TO ENTER INTO THE LOAN TRANSACTION EVIDENCED BY THIS NOTE. 
 27.
WAIVER OF PREPAYMENT RIGHT WITHOUT PREMIUM. MAKER HEREBY EXPRESSLY WAIVES ANY RIGHT IT MAY HAVE UNDER APPLICABLE LAW (INCLUDING, WITHOUT LIMITATION, CALIFORNIA CIVIL CODE SECTION 2954.10) TO PREPAY THIS NOTE, IN WHOLE OR IN PART, WITHOUT
PREPAYMENT PREMIUM, UPON ACCELERATION OF THE MATURITY DATE OF THIS NOTE, AND AGREES THAT, IF FOR ANY REASON A PREPAYMENT OF ALL OR ANY PART OF THIS NOTE IS MADE, WHETHER VOLUNTARILY OR FOLLOWING ANY ACCELERATION OF THE MATURITY DATE OF THIS NOTE BY
HOLDER ON ACCOUNT OF THE OCCURRENCE OF ANY EVENT OF DEFAULT ARISING FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, AS A RESULT OF ANY PROHIBITED OR RESTRICTED TRANSFER, FURTHER ENCUMBRANCE OR DISPOSITION OF THE PROPERTY OR ANY PART THEREOF SECURING
THIS NOTE, THEN MAKER SHALL BE OBLIGATED TO PAY, CONCURRENTLY WITH SUCH PREPAYMENT, THE PREPAYMENT PREMIUM PROVIDED FOR IN THIS NOTE OR, IN THE EVENT OF PREPAYMENT FOLLOWING ACCELERATION OF THE MATURITY DATE HEREOF WHEN THIS NOTE IS CLOSED TO
PREPAYMENT, AS PROVIDED IN THE DEED OF TRUST. MAKER HEREBY DECLARES THAT HOLDER’S AGREEMENT TO MAKE THE LOAN AT THE INTEREST RATE AND FOR THE TERM SET FORTH IN THIS NOTE CONSTITUTES ADEQUATE CONSIDERATION, GIVEN INDIVIDUAL WEIGHT BY MAKER, FOR
THIS WAIVER AND AGREEMENT. 
 MAKER DLS 
 [Balance of Page Intentionally Left Blank] 
  

 12 








 IN WITNESS WHEREOF and intending to be legally bound, Maker has duly executed this Note as of the date
first above written. 
  

			
	MAKER:
	
	RANCON REALTY FUND IV SUBSIDIARY
	LLC, a Delaware limited liability company
		
	By:	 	 /s/ Daniel Lee Stephenson

	Name:	 	Daniel Lee Stephenson
	Title:	 	Manager










			
	52035241 K26	  	


	Recording Requested By	  
	CHICAGO TITLE COMPANY	  
	  
 STATE OF CALIFORNIA
	  
	 COUNTY OF SAN BERNARDINO
	  
	  
 Recording requested by:
	  
	  
 And when recorded mail
to:
	  
	  
 Otten, Johnson,
Robinson,
	  
	 Neff & Ragonetti, P.C.
	  
	950 Seventeenth Street	  
	Suite 1600	  
	Denver, Colorado 80202	  
	  
 Attention: Aaron J. Hill, Esq.
	  

 DEED OF TRUST, SECURITY AGREEMENT, FIXTURE FILING. FINANCING 
 STATEMENT AND ASSIGNMENT OF LEASES AND RENTS 
  

			
	TRUSTOR:	  	RANCON REALTY FUND IV SUBSIDIARY LLC,
		  	a Delaware limited liability company
		  	400 South El Camino Real, 11th Floor
		  	San Mateo, California 94402
		  	Attention: Mr. Stephen R. Saul
		
	BENEFICIARY:	  	THE VARIABLE ANNUITY LIFE INSURANCE COMPANY,
		  	a Texas corporation
		  	c/o AIG Global Investment Corp.
		  	1 SunAmerica Center, 38th Floor
		  	Century City
		  	Los Angela, California 90067-6022
		  	Attention: Director-Mortgage Lending and Real Estate
		
	TRUSTEE:	  	CHICAGO TITLE INSURANCE COMPANY
		  	700 South Flower Street, Suite 900
		  	Los Angeles, California 90017
		
	AMOUNT SECURED:	  	$24,100,000.00
		
	GOVERNING LAW:	  	CALIFORNIA