Recording requested by and
when recorded mail it to:
REDLANDS FEDERAL BANK
P. O. Xxx 0000
Xxxxxxxx, XX 00000 Loan No. 01-422824
AMENDED AND RESTATED DEED OF TRUST
THIS AMENDED AND RESTATED DEED OF TRUST,
WHICH INCLUDES AN ASSIGNMENT OF RENTS, SECURITY
AGREEMENT AND FIXTURE FILING FINANCING STATEMENT
(this "Deed of Trust") is dated as of February 26,
1997 for reference purposes only, and is entered
into by and between Emeritus Corporation, a
Washington corporation ("Borrower"), owning title
to the Premises (as hereinafter defined), to
Redlands Financial Services, Inc., a California
corporation ("Trustee") for the benefit of
Redlands Federal Bank, a federal savings bank (the
"Lender").
THIS AMENDED AND RESTATED DEED OF TRUST is
given to secure the obligations of Borrower to
Lender under that certain Note dated February 26,
1997, (the
"Note") by and between Lender and Borrower in the
principal amount of $3,030,773.40. Pursuant to
that certain Loan Agreement dated January 20,
1988, (the "Loan Agreement") by and between Lender
and Borrower's predecessor, Lender agreed to loan
the original principal balance of the Note in the
amount of $3,360,000.00 to provide permanent
financing for an assisted living facility
(collectively referred to herein as the "Project")
located on the real property described in Exhibit
"A" attached hereto and incorporated herein by
this reference (the "Land"). Lender and Borrower
have entered into an Agreement to Modify Loan
Documents dated February 26, 1997 and a Loan
Assumption Agreement dated February 26, 1997.
Pursuant to those agreements, Borrower has assumed
all of the duties and obligations of Borrower's
predecessor. This AMENDED AND RESTATED DEED OF
TRUST modifies in its entirety that certain Deed
of Trust by and between Lender and Borrower's
predecessor, recorded on February 26, 1988 as
Instrument No.88-089128 in the office of the
County Recorder of San Diego County, California.
The language and provisions of this modification
shall supersede any and all provisions of the
certain Deed of Trust between Borrower's
predecessor and Lender.
FOR GOOD AND VALUABLE CONSIDERATION,
including the indebtedness herein recited and the
trust herein created, the receipt and adequacy of-
which are hereby acknowledged, the Borrower hereby
irrevocably grants, transfers, sets over, conveys
and assigns to Trustee, IN TRUST, WITH POWER OF
SALE, for the benefit and security of Lender,
under and subject to the terms and conditions
hereinafter set forth, all rights, titles,
interests, estates, power and privileges that
Borrower now has or may hereafter acquire in or to
the following property and interests therein
(collectively, the "Trust Estate"):
THAT CERTAIN REAL PROPERTY located in the County
of San Diego, State of California more
particularly described on Exhibit "A" attached
hereto and referred to herein as the Land [the
Land and the Improvements (as hereinafter defined)
are sometimes collectively referred herein as the
"Premises"];
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TOGETHER WITH all rents, issues, profits,
royalties, income and other benefits derived from
the Trust Estate (collectively, the "Rents"),
subject to the right, power and authority
hereinafter given to Borrower (and, upon an Event
of Default (as hereinafter defined), to
Beneficiary) to collect and apply such Rents;
TOGETHER WITH all interests, estates or other
claims, both at law and in equity, which Borrower
now has or may hereafter acquire in the Premises;
TOGETHER WITH all easements, rights-of way
and rights now owned or hereafter acquired by
Borrower used in connection with the Premises or
the Project or as a means of access to either or
both, including, without limiting the generality
of the foregoing, all rights to the nonexclusive
use of common drive entries, and all tenements,
hereditaments and appurtenances thereof and
thereto, and all water and water rights and shares
of stock evidencing the same;
TOGETHER WITH any and all buildings,
landscaping and other improvements now or
thereafter erected in or on the Premises
including, but not limited, to the fixtures,
attachments, appliances, equipment, machinery, and
other articles attached to said buildings and
improvements (collectively, the "Improvements"),
all of which shall be deemed and construed to be a
part of the realty;
TOGETHER WITH all leasehold estates, right,
title and interest of Borrower in and to all
Leases or subleases covering the Premises or the
Project or any portion thereof or interest therein
now or hereafter existing or entered into, and all
right, title and interest to Borrower thereunder
including, without limitation, all cash or
security deposits, advance rentals, and deposits
or payments of a similar nature (collectively, the
"Deposits");
TOGETHER WITH all oil and gas and other
mineral rights in or pertaining to the Land, and
all royalty, leasehold and other rights of
Borrower pertaining thereto;
TOGETHER WITH all rights, title and interest
now owned or hereafter acquired by Borrower in and
to a11 options to purchase or lease the Premise or
any portion thereof or interest therein, and any
greater estate in the Premises now owned or
hereafter acquired;
TOGETHER WITH all right, title and interest
of Borrower, now owned or hereafter acquired, in
and to any land lying within the right-of way of
any street, open or proposed, adjoining the Land,
and any and all sidewalks, alleys and strips and
gores of land adjacent to or used in connection
with the Land, Premises or Project;
TOGETHER WITH all the estates, interest,
right, title, other claim or demand, both at law
and in equity, including claims or demands with
respect to the proceeds of insurance in effect
with respect thereto, which Borrower now has or
may hereafter acquire in the Premises, and any and
all awards made for the taking by eminent domain,
or by any proceeding or purchase in lieu thereof,
of the whole or any part of the Trust Estate,
including without limitation any award resulting
from a change of grade of streets and any award
for severance damages (collectively, the "
Proceeds").
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FOR THE PURPOSE OF SECURING:
(a) Payment and performance of each and every
obligation, covenant and agreement of Borrower
contained in the Note and any amendment or
supplement thereto, extension or renewal thereof
or replacement therefor;
(b) Payment of all other sums agreed to be
paid by Borrower pursuant to the Note, the Loan
Agreement or any other agreement between Borrower
and Lender with respect to this loan and
performance of all other obligations of Borrower
thereunder;
(c) Payment of all sums advanced by or on
behalf of Trustee or Lender as herein authorized
to protect the Trust Estate, with interest thereon
at the rate of interest called for by the Note;
(d) Performance of every obligation, covenant
and agreement of Borrower contained herein;
(e) Payment of all other sums, with interest
thereon, which may hereafter be loaned to
Borrower, or its successors or assigns, by Lender
or its successors or assigns, when evidenced by a
promissory note or notes reciting that they are
secured by this Deed of Trust;
(f) Performance of every obligation, covenant
and agreement of Borrower contained in any
agreement now or hereafter executed by Borrower
which recites that the obligations thereunder are
secured by this Deed of Trust;
(g) Compliance with and performance of each
and every provision of any declaration of
covenants, conditions or restrictions pertaining
to the Trust Estate or any portion thereof; and,
(h) Payment of all sums, with interest
thereon at the rate of interest called for by the
Note, that may become due and payable to or for
the benefit of Lender or Trustee pursuant to the
terms hereof.
This Deed of Trust, the Note, and any other
deed of trust, mortgage, security agreement,
guaranty or other instrument given to evidence or
further secure the payment or performance of any
obligation secured hereby may hereafter be
collectively referred to as the "Financing
Documents. "
TO PROTECT THE PREMISES AND THE SECURITY
GRANTED BY THIS DEED OF TRUST, BORROWER HEREBY
COVENANTS AND AGREES AS FOLLOWS:
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ARTICLE I
COVENANTS AND AGREEMENTS OF BORROWER
Section 1.01. PAYMENT OF SECURED OBLIGATIONS
Borrower shall pay when due all amounts
required to be paid or delivered to Lender as
provided in the Note; the principal of and
interest on any sum advanced in the future and
secured by this Deed of Trust; and the principal
of and interest on any other sum secured by this
Deed of Trust and all charges, fees and other sums
as provided in the Note.
Section 1.02. MAINTENANCE, REPAIR,
ALTERATIONS.
Borrower shall maintain and preserve the
Trust Estate in good condition and repair and in a
prudent and businesslike manner; Borrower, except
upon the prior written consent of Lender, shall
not remove, demolish or substantially alter any of
the Improvements, other than to make repairs in
the ordinary course of business of a non-
structural nature which serve to preserve or
increase the value of the Premises; Borrower shall
complete promptly and in a good and workmanlike
manner any improvement which may be now or
hereafter constructed on the Premises and promptly
restore in like manner any Improvement which may
be damaged or destroyed thereon from any cause
whatsoever, and pay when due all claims for labor
performed and materials furnished therefor;
Borrower shall comply with a11 laws, ordinances,
rules. regulations, covenants, conditions,
restrictions and orders of any governmental
authority now or hereafter affecting the conduct
or operation of Borrower's business or the Trust
Estate or any part thereof or requiring any
alteration or improvement to be made thereon;
Borrower shall not commit or permit any waste or
deterioration of the Trust Estate, and shall keep
and maintain abutting grounds, sidewalks, roads,
parking and landscape areas in good and neat order
and repair; Borrower will not take (or fail to
take) any action, which if taken (or not so taken)
would increase in any way the risk of fire or
other hazard occurring to or affecting the
Premises or otherwise would impair the security of
Lender in the Trust Estate; Borrower shall comply
with the provisions of all leases, if any,
constituting a portion of the Trust Estate;
Borrower shall not abandon the Trust Estate or any
portion thereof or leave the Premises vacant or
deserted; Borrower shall not initiate, join in or
consent to any change in any zoning ordinance,
general plan, specific plan, private restrictive
covenant or other public or private restriction
limiting the uses which may be made of the
Premises by Borrower or by the owner thereof;
Borrower shall secure and maintain in full force
and effect a11 permits necessary for the use,
occupancy and operation of the Trust Estate;
except as otherwise prohibited or restricted by
the Financing Documents, or any of them, Borrower
shall do any and all other acts which may be
reasonably necessary to protect or preserve the
value of the Trust Estate and the rights of
Trustee and Lender with respect thereto.
Borrower hereby agrees that Lender may
conduct from time to time through representatives
of its own choice, upon reasonable notice at
reasonable times, on-site inspections and
observations (1) the maintenance and repair of the
Trust Estate, including a review of all
maintenance and repair programs and practices and
all reports and records, including the records of
expenditures relating thereto, and (2) such other
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facilities, practices and records of Borrower
relating to the Premises as Lender deems to be
reasonably necessary or appropriate in order to
monitor Borrower's compliance with the provisions
of this Section 1.02.
Section 1.03. REQUIRED INSURANCE.
(a) Borrower shall at all times provide,
maintain, keep in full force and effect or cause
to be provided, maintained, and kept in full force
and effect, at no expense to Trustee or Lender,
policies of insurance in form and amounts required
by Lender and issued by companies, associations or
organizations reasonably satisfactory to Lender.
Without limiting the generality of the foregoing,
Borrower shall provide, maintain and keep in force
or cause to be provided, maintained, and kept in
force, at no expense to Trustee or Lender such
additional insurance as is customarily required
for projects of a similar nature or as may be
required by Lender from time to time in the event
that the Premises are exposed to hazards and risks
with respect to which Lender reasonably deems the
existing insurance inadequate properly to protect
its interests.
(b) All policies of insurance required by the
terms of the Deed of Trust shall either have
attached thereto a lender's loss payable
endorsement for the benefit of Lender in form
satisfactory to Lender or shall name Lender as
additional insured and shall contain an
endorsement or agreement by the Insurer that any
loss shall be payable in accordance with the terms
of such policy notwithstanding any act or
negligence of Borrower or any party holding under
Borrower which might otherwise result in
forfeiture of said insurance and the further
agreement of the insurer waving all rights of
setoff, counterclaim and deduction ago against
Borrower.
Section 1.04. DELIVERY OF POLICIES, PAYMENT
OF PREMIUMS.
At Lender's option, Borrower shall furnish
Lender with an original of all policies of
insurance required under Section 1.03 above or a
certificate of insurance for each required policy
setting forth the coverage, the limits of
liability, the deductibles, if any, the name of
the carrier, the policy number, and the period of
coverage, which certificates shall be executed by
authorized officials of the companies issuing such
insurance, or by agents or attorneys-in-fact
authorized to issue said certificates (in which
event each such certificate shall be accompanied
by a notarized affidavit, agency agreement or
power of attorney evidencing the authority of the
signatory to issue such certificate on behalf of
the insurer named therein). If Lender consents,
Borrower may provide any of the required insurance
through blanket policies carried by Borrower and
covering more than one location, or by policies
procured by a tenant or other party holding under
Borrower; provided, however, all such policies
shall be in form and substance and issued by
companies satisfactory to Lender. At least thirty
(30) days prior to the expiration of each required
policy, Borrower shall deliver to Lender evidence
satisfactory to Lender of the payment of premium
and the renewal or replacement of such policy
continuing insurance in form as required by this
Deed of Trust. All such policies shall contain a
provision that, notwithstanding any contrary
agreement between Borrower and the insurance
company, such policies will not be canceled,
allowed to lapse without renewal, surrendered or
materially amended (which term shall include any
reduction in the scope or limits of coverage)
without at least thirty (30) day ' s prior written
notice to
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Lender. All consents and approvals of Lender
required by this Section shall be given or
withheld in the reasonable discretion of Lender.
If Borrower fails to provide, maintain, keep in
force or deliver to Lender the policies of
insurance required by this Deed of Trust or by any
of the Financing Documents, Lender may (but shall
have no obligation to) procure such insurance, or
single interest insurance for such risks covering
Lender's interests, and Borrower will pay all
premiums therefor promptly upon demand by Lender;
and until such payment is made by Borrower, the
amount of all such premiums, together with
interest thereon at the Bank Rate, shall be
secured by this Deed of Trust.
Section 1.05. PROPERTY LOSSES.
Borrower shall give prompt written notice
thereof to Lender after the happening of any
property loss to or in connection with the Trust
Estate or any part thereof, whether or not covered
by insurance. In the event of such property loss,
the gross proceeds less all expenses (including
attorneys fees) incurred in the collection of such
proceeds shall, subject to the provisions of the
Note and the Loan Agreement, be payable to Lender
in an amount not to exceed the then current
balance, and Borrower hereby authorizes and
directs any affected insurance company to make
payment of such proceeds in such a case directly
to Lender. If Borrower receives any proceeds of
insurance resulting from such property loss,
Borrower shall promptly pay over such proceeds to
Lender. Lender is hereby authorized and empowered
by Borrower at Lender's option and in Lender's
sole discretion, as attorney-in-fact for Borrower,
to make proof of loss, to appear in and prosecute
any action arising from any policy or policies of
insurance, and upon the occurrence of an Event of
Default hereunder or under the Note, to settle,
adjust or compromise any claim for loss, damage or
destruction of the Trust Estate or any part
thereof under any policy or policies of insurance
without the prior written consent of Borrower to
such settlement, adjustment or compromise. In the
event of any damage to or destruction of the
Premises, all insurance proceeds shall be applied
in accordance with the terms of the Note and the
Loan Agreement, except as otherwise herein
provided in Section 1.05.
Section 1.06. ASSIGNMENT OF POLICIES UPON
FORECLOSURE.
In the event of foreclosure of this Deed of
Trust or other transfer of title or assignment of
the Trust Estate in extinguishment, in whole or in
part, of the debt secured hereby, all right, title
and interest of Borrower in and to all policies of
insurance required by Section 1.03 hereof and any
unearned premiums paid thereon shall, without
further act, be assigned to and shall inure to the
benefit of and pass to the successor in interest
to Borrower or the purchaser or grantee of the
Trust Estate, and Borrower hereby appoints Lender
its lawful attorney-in-fact to execute an
assignment thereof and any other document
necessary to effectuate such transfer.
Section 1.07. SUBROGATION. WAIVER OF OFFSET.
(a) Borrower waives any and all right to
claim or recover against Lender, its officers,
employees, agents and representatives, for loss of
or damage to Borrower, the Trust Estate,
Borrower's property or the property of others
under Borrower's control from any cause insured
against or required to be insured against by the
provisions of this Deed of Trust; provided,
however, that this waiver of subrogation shall not
be effective with respect to any policy of
insurance permitted or required by this Deed of
Trust if (i) such
6
policy prohibits, or if coverage thereunder would
be reduced as a result of, such waiver of
subrogation and (ii) Borrower is unable to obtain
from a carrier issuing such insurance a policy
that, by special endorsement or otherwise, permits
such a waiver of subrogation.
(b) Except as otherwise specifically provided
herein and including Sections 1.04 and 1.05, all
sums payable by Borrower pursuant to this Deed
Trust shall be paid without notice, demand,
counterclaim, setoff, deduction or defense and
without abatement, suspension, deferment,
diminution or reduction, and the obligations and
liabilities of Borrower hereunder shall in no way
be released, discharged or otherwise affected
(except as expressly provided herein) by reason
of: (i) any damage to or destruction of or any
condemnation or similar taking of the Trust Estate
or any part thereof; ( ii) any restriction or
prevention of or interference by any third party
with any use of the Trust Estate or any part
thereof; (iii) any title defect or encumbrance or
any eviction from the Premises or any part thereof
by title paramount or otherwise; (iv) any
bankruptcy, insolvency, reorganization,
composition, adjustment, dissolution, liquidation
or other like proceeding relating to Lender, or
any action taken with respect to this Deed of
Trust by any trustee or receiver of Lender, or by
any court, in any such proceeding; (v) any claim
which Borrower has or might have against Lender;
(vi) any default or failure on the part of the
Lender to perform or comply with any of the terms
hereof or of any other agreement with Borrower; or
(vii) any other occurrence whatsoever, whether
similar or dissimilar to the foregoing; whether or
not Borrower shall have notice or knowledge of any
of the foregoing. Except as expressly provided
herein, Borrower waives all rights now or
hereafter conferred by statute or otherwise to any
abatement, suspension, deferment, diminution or
reduction of any sum secured hereby and payable by
Borrower.
Section 1.08. TAXES AND IMPOSITIONS.
(a) Borrower shall pay, or cause to be paid
at least ten (10) days prior to delinquency, all
real property taxes and assessments, general and
special, and all other taxes and assessments of
any kind or nature whatsoever, including without
limitation, non-governmental levies or assessments
such as maintenance charges, levies or charges
resulting from covenants, conditions and
restrictions affecting the Trust Estate, which are
assessed or imposed upon the Trust Estate, or upon
Borrower as owner or operator of the Trust Estate,
or become due and payable, and which create, may
create or appear to create a lien upon the Trust
Estate, or any part thereof, or upon any personal
property, equipment or other facility used in the
operation or maintenance thereof (all the above
collectively hereinafter referred to as
"Impositions"); provided, however, that if, by
law, any such Imposition is payable, or may at the
option of the taxpayer be paid, in installments,
Borrower may pay the same or cause it to be paid,
together with any accrued interest on the unpaid
balance of such Imposition, in installments as the
same become due and before any fine, penalty,
interest or cost may be added thereto for the
nonpayment of any such installment and interest.
Borrower may not enter into any multi-year payment
plan for the payment of real property taxes unless
(1) Borrower has obtained the prior written
consent of Lender to such a plan and, (2) such
written consent includes the agreement of Borrower
to deposit the amounts needed to pay the
installments due under such plan into an impound
account with Lender.
(b) If at any time after the date hereof
there shall be assessed or imposed (i) a tax or
assessment on the Trust Estate in lieu of or in
addition to the Impositions payable by Borrower
pursuant to subparagraph (a) hereof, or (ii) a
license fee, tax or assessment
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imposed on Lender and measured by or based in
whole or in part upon the amount of the
outstanding obligations secured hereby, then all
such taxes, assessments or fees shall be deemed to
be included within the term "Impositions" as
defined in subparagraph (a) hereof, and Borrower
shall pay and discharge the same as herein
provided with respect to the payment of
Impositions. If Borrower fails to pay such
Impositions prior to delinquency or if Borrower is
prohibited by law from paying such Impositions,
Lender may at its option declare all obligations
secured hereby together with all accrued interest
thereon, immediately due and payable. Anything to
the contrary herein notwithstanding, Borrower
shall have no obligation to pay any franchise,
estate, inheritance, income, excess profits or
similar tax levied on Lender or on the obligations
secured hereby.
(c) Subject to the provisions of paragraph
(d) of this Section 1.08 and upon request by
Lender, Borrower shall deliver to Lender within
thirty (30) days after the date upon which any
such Imposition is due and payable by Borrower
official receipts of the appropriate taxing
authority, or other proof satisfactory to Lender,
evidencing the payment thereof.
(d) Borrower shall have the right before any
delinquency occurs to contest or object to the
amount or validity of any such Imposition by
appropriate legal proceedings, but this shall not
be deemed or construed in any way as relieving,
modifying or extending Borrower' s covenant to pay
any such Imposition at the time and in the manner
provided in this Section 1.08, unless Borrower has
given prior written notice to Lender of Borrower's
intent to so contest or object to an Imposition,
and unless, at Lender's sole option, (i) Borrower
shall demonstrate to Lender's reasonable
satisfaction that the legal proceedings shall
conclusively operate to prevent the sale of the
Trust Estate, or any part thereof, to satisfy such
Imposition prior to final determination of such
proceedings; or (ii) Borrower shall furnish a good
and sufficient bond or surety as reasonably
requested by and satisfactory to Lender; or (iii)
Borrower shall demonstrate to Lender's reasonable
satisfaction that Borrower has provided a good and
sufficient undertaking as may be required or
permitted by law to accomplish a stay of any such
sale.
(e) Borrower shall not suffer, permit or
initiate the joint assessment of any real and
personal property which may constitute all or a
portion of the Trust Estate or suffer, permit or
initiate any other procedure whereby the lien of
the real property taxes and the lien of the
personal property taxes shall be assessed, levied
or charged to the Trust Estate as a single lien.
Borrower shall cause to be furnished to
Lender a tax reporting service, covering the Trust
Estate, of a type and duration, and with a
company, satisfactory to Lender.
Section 1.09. UTILITIES.
Borrower shall pay or shall cause to be paid
when due all utility charges which are incurred
for the benefit of the Trust Estate or which may
become a charge or lien against the Trust Estate
for gas, electricity, water or sewer services
furnished to the trust Estate and all other
assessments or charges of a similar nature,
whether public or private, affecting or related to
the Trust Estate or any portion thereof, whether
or not such taxes, assessments or charges are or
may become liens thereon.
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Section 1.10. DEFENSE OF ACTIONS AND COSTS.
Borrower, at no cost or expense to Lender or
Trustee, shall appear in and defend any action or
proceeding purporting to affect the security
hereof, the other Financing Documents, any
additional or other security for the obligations
secured hereby, the interest of the Lender, or the
rights, powers or duties of Lender or Borrower
hereunder. If Lender and Trustee, or either of
them, elects to become a party to such action or
proceed, or is made a part thereto or to any other
action or proceeding, of whatever kind or nature,
concerning the Note, this Deed of Trust, any of
the Financing Documents, the Trust Estate or any
part thereof or interest therein, or the occupancy
thereof, Borrower shall indemnify, defend and hold
Trustee and Lender harmless from all liability,
damage, cost and expense incurred by Trustee and
Lender, or either of them, by reason of said
action or proceeding (including, without
limitation, Trustee's fees and expenses, the fees
of attorneys for Trustee and for Lender, and other
expenses, of whatever kind or nature, incurred by
Trustee or Lender, or either of them, as a result
of such action or proceeding), whether or not such
action or proceeding is prosecuted to judgment or
decision. Immediately upon demand therefor by
Trustee or Lender, Borrower shall pay thereto an
amount equal to Borrower's liability to such
person under this Section.
Section 1. 11. ACTIONS BY LENDER TO PRESERVE
TRUST ESTATE.
If Borrower fails to make any payment or to
do any act and in the manner provided in any of
the Financing Documents, Lender, and Trustee, and
each of them, each in its own discretion, without
obligation so to do without releasing Borrower
from any obligation, and subject only to the
notice and cure provisions of the Note, may make
or do the same in such manner and to such extent
as either may deem necessary to protect the
security hereof. In connection therewith (without
limiting their general and other powers, whether
conferred herein, in another Loan Document or by
law); Lender and Trustee, and each of them, each
shall have and are hereby given the right, but not
the obligation: (i) to enter upon and take
possession of the Trust Estate; (ii) to make
additions, alterations, repairs and improvements
to the Trust Estate which they or either of them
may reasonably consider necessary or proper to
keep the Trust Estate in good condition and
repair; (iii) to appear and participate in any
action or proceeding affecting or which may affect
the security hereof or the rights or powers of
Lender or Trustee; (iv) to pay, purchase, contest
or compromise any encumbrance, claim, charge, lien
or debt which in the reasonable judgment of either
may materially and adversely affect or appears to
materially and adversely affect the security of
this Deed of Trust or to be prior or superior
hereto; and (v) in exercising such powers, to pay
necessary expenses, including employment of
counsel or other necessary or desirable
consultants. Borrower shall, immediately upon
demand therefor by Lender pay to Lender an amount
equal to all costs and expenses incurred by it in
connection with the exercise by Lender of the
foregoing rights, including, without limitation,
costs of evidence of title, court costs,
appraisals, surveys and receiver's, Trustee's and
reasonable attorneys fees, costs and expenses
(including without limitation, the fees and
expenses of attorneys for Trustee), whether or not
an action is actually commenced in connection
therewith.
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Section 1.12. TRANSFER OF TRUST ESTATE BY
BORROWER.
One of the inducements to the Lender for
entering into this transaction is the identity of
the Borrower. The existence of any interest in the
property secured by this Deed of Trust other than
the interests of the Lender and other encumbrance
permitted by the terms of this Deed of Trust or by
a fully executed, written agreement between the
Borrower and Lender, even though subordinate to
the security interest of the Lender, and the
existence of any interest in the property other
than those of the Borrower may impair the property
and the security interest of Lender, and,
therefore, Borrower shall not sell, convey,
assign, transfer, alienate or otherwise dispose of
Borrower's interest in the property, or any part
thereof, either voluntarily or by operation of law
or agree to do so, without the prior written
consent of the Lender. Consent to one such
transaction by the lender shall not be deemed a
waiver of the right to require such consent to
further or successive transactions. Any direct or
indirect sale or transfer of the property which at
one time or in the aggregate results in more than
forty-nine percent (49%) of the ownership of the
property having been sold or transferred since the
recordation of this Deed of Trust shall constitute
a transfer of the property for the purposes of
this Section. Further, any direct or indirect
transfers of ownership interests in Borrower other
than market trades in Borrower's shares, which
exceeds in the aggregate forty-nine percent (49%)
of the total current ownership interest in
Borrower shall constitute a transfer of the
property for the purpose of this Section. Borrower
shall notify Lender in writing of any transfer of
any portion of the ownership interest in Borrower,
except for market trades in Borrower's shares, or
the property not less than thirty (30) days before
such transfer is to occur, and in such notice,
shall advise Lender as to the nature of the
transfer with sufficient particularity as to
enable lender to compute the percentage so
transferred. Any transaction in violation of this
Section shall constitute an Event of Default under
the Notice and this Deed of Trust, and Lender
shall be entitled to exercise all remedies
provided in this Deed of Trust. The Lender shall
not unreasonably withhold its consent to a sale or
other transfer of the property provided that the
proposed transaction does not violate any of the
then existing loan underwriting criteria of the
Bank, and further provided that the assumption fee
required by the Lender is paid to the Lender as a
part of such transfer in addition, the Borrowers
equity in the property which is encumbered by this
Deed of Trust is a material factor to Lender, and
Lender makes the Loan which is secured by this
Deed of Trust in material reliance upon that
equity. Therefore, in order to assure Lender that
the equity of Borrower in the property will not be
subsequently diluted, and in consideration for
Lender making the loan which is secured by this
Deed of Trust, Borrower hereby covenants and
agrees that so long as this Deed of Trust is a
lien against the real property described herein,
Borrower wil1 not create or permit to continue in
existence any mortgage, deed of trust, pledge,
encumbrance, lien or charge of any kind against
the property except for encumbrances expressly
permitted by this Deed of Trust or as otherwise
consented to in writing by Lender, or liens for
taxes not yet payable. In the event that the
interest of Borrower in the property encumbered by
this Deed of Trust, or any part thereof, or any
interest therein is sold, agreed to be sold,
optioned, conveyed, alienated, encumbered or
otherwise transferred by Borrower, whether by
operation of law or otherwise, the obligations
hereunder, irrespective of the maturity dates
expressed herein, at the option of the Lender and
without demand or notice, shall immediately become
due and payable. In the event that the Lender does
not elect to declare the Note immediately due and
payable in the event of a transfer described
herein, then, unless indicated otherwise in
writing by the lender, Borrower shall remain
primarily liable for the obligations under the
Note and this Deed of Trust and under any other
instrument
10
securing the Note or executed in connection
herewith. Except for transfers for which Lender
has given express written consent, this provision
shall apply to each and every sale, transfer,
encumbrance or conveyance, regardless of whether
or not the Lender has consented to, or waived, the
Lender's rights hereunder, whether by action or
non-action, in connection with any previous sale,
transfer, encumbrance or conveyance and whether or
not the holder has received any payments after
such event.
Section 1.13. SURVIVAL OF WARRANTIES.
Borrower shall fully and faithfully satisfy
and perform the obligations of Borrower contained
in the Financing Documents, each agreement of
Borrower incorporated by reference therein or
herein each agreement the performance of which is
secured hereby, and any modification or amendment
thereof. All representations, warranties and
covenants of Borrower contained in any such
agreement between Borrower and Lender shall
survive the execution and delivery hereof and
shall remain continuing obligations, warranties
and representations of Borrower during any time
when any portion of the obligations secured hereby
remain outstanding.
Section 1.14. CONDEMNATION AND OTHER AWARDS.
Immediately upon its obtaining knowledge of
the institution or the threatened institution of
any proceeding for the condemnation or other
taking for public or quasi-public use of the Trust
Estate or any part thereof, or if the same be
taken or damaged by reason of any public
improvement or condemnation proceeding, or in any
other manner, or should Borrower receive any
notice or other information regarding such
proceeding, action, taking or damage, Borrower
shall promptly notify Trustee and Lender of such
fact. Borrower shall then, if requested by Lender,
file or defend its right thereunder and prosecute
the same with due diligence to its final
disposition and shall cause any award or
settlements to be paid over to Lender for
disposition pursuant to the terms of this Deed of
Trust. At Lender's option, Lender or Borrower may
be the nominal party in such proceeding but in any
event Lender shall be entitled, without regard to
the adequacy of its security, to participate in
the same and to be represented therein by counsel
of its choice, and Borrower will deliver, or cause
to be delivered, to Lender such instruments as may
be requested by it from time to time to permit
such participation. If the Trust Estate or any
part thereof is taken or diminished in value, or
if a consent settlement is entered, by or under
threat of such proceeding, all compensation,
awards, damages, rights of action, proceeds and
settlements payable to Borrower by virtue of its
interest in the Trust Estate (the "Condemnation
Proceeds") shall be and hereby are assigned,
transferred and set over unto Lender to be held by
it, in trust, subject to the lien and security
interest of this Deed of Trust. Any such
Condemnation Proceeds shall be first applied to
reimburse Trustee and Lender for all costs and
expenses, including reasonable attorney's fees,
incurred in connection with the collection of such
award or settlement. The balance of such award or
settlement shall be applied to pay all sums due
under the Note, the Loan Agreement, and this Deed
of Trust, and any sums then remaining shall be
paid over to Borrower. Application or release of
the Condemnation Proceeds as provided herein shall
not cure or waive any default or notice of default
hereunder or invalidate any act done pursuant to
such notice.
11
Section 1.15. ADDITIONAL SECURITY.
No other security now existing, or hereafter
taken, to secure the obligations secured hereby
nor the liability of any maker, surety, guarantor
or endorser with respect to such obligations, or
any of them, shall be impaired or affected by the
execution of this Deed of Trust; and all
additional security shall be taken, considered and
held as cumulative. The taking of additional
security, execution of partial releases of the
security, or any extension of the time of payment
of the indebtedness shall not diminish the force,
effect or lien of this Deed of Trust and shall not
affect or impair the liability of any maker,
surety, guarantor or endorser for the payment of
said indebtedness. In the event Lender at any time
holds additional security for any of the
obligations secured hereby, it may enforce the
sale thereof or otherwise realize upon the same,
at its option, either before, concurrently, or
after a sale is made hereunder.
Section 1.16. INSPECTIONS, REPORTS AND
FINANCIAL STATEMENTS.
(a) Lender and its agents, representatives or
workers, are authorized upon reasonable notice to
enter at any reasonable time upon or in any part
of the Trust Estate for the purposes of inspecting
the same and for the purpose of performing any of
the acts it is authorized to perform hereunder or
under the terms of any of the Financing Documents
.
(b) Commencing January 30, 1998, and
continuing until this Deed of Trust is reconveyed,
Borrower shall furnish Lender, on an annual basis
or more frequently if requested, a complete rent
roll for the project, listing each unit, the
current rental rate for each unit, and the current
rental rate actually being paid for each unit.
(c) Commencing January 30, 1998, and on the
30th day of January each year thereafter, or more
frequently if requested, until this Deed of Trust
is reconveyed, Borrower shall provide to Lender
complete financial statements for the Project,
including income and expense statements broken
down by month. Borrower shall provide Lender with
current annual report for the Borrower at the same
time the financial statements for the Project are
provided. Lender may elect to audit all financial
statements at the expense of Borrower, but no more
frequently than annually. In addition, beginning
in 1997 and continuing until this Deed of Trust is
reconveyed, Borrower shall also provide Lender
with copies of all tax returns and schedules filed
with the Internal Revenue Service and the
Franchise Tax Board each year, within 30 calendar
days after fling with said agencies.
Section 1.17. LIENS.
Borrower shall pay and promptly discharge
when due, at Borrower's cost and expense, all
liens, encumbrances and charges upon the Trust
Estate, or any part thereof or interest therein,
provided that the existence of any mechanic's,
laborer's, materialman's, suppliers', or vendor's
lien or right thereto shall not constitute a
violation of this Section if payment is not yet
due under the contract which is the foundation
thereof and if such contract does not postpone
payment for more than forty-five (45) days after
the performance thereof. Borrower shall have the
right to contest in good faith the validity of any
such lien, encumbrance or charge, provided that
within ten days after service of a
12
stop notice or ninety days after recording of a
Mechanic ' s Lien, Borrower shall deposit with
Lender a bond or other security reasonably
satisfactory to Lender in such amounts as Lender
shall reasonably require, but no more than the
amount required to release the lien under
California law and provided further that Borrower
shall thereafter diligently proceed to cause such
lien, encumbrance or charge to be removed and
discharged. If Borrower shall fail either to
remove and discharge any such lien, encumbrance or
charge or to deposit security in accordance with
the preceding sentence, if applicable, then, in
addition to any other right to remedy of Lender,
Lender may, but shall not be obligated to,
discharge the same, without inquiring into the
validity of such lien, encumbrance or charge nor
into the existence of any defense or offset
thereto, either by paying the amount claimed to be
due, or by procuring the discharge of such lien,
encumbrance or
charge by depositing in a court a bond or the
amount or otherwise giving security for such
claim, or in such manner as is or may be
prescribed by law. Borrower shall, immediately
upon demand therefor by Lender, pay to Lender an
amount equal to all costs and expenses incurred by
Lender in connection with the exercise by Lender
of the foregoing right to discharge any such lien,
encumbrance or charge.
Section 1.18. LENDER' S POWERS.
Without affecting the liability of any other
person liable for the payment of any obligation
herein mentioned, and without affecting the lien
or charge of this Deed of Trust upon any portion
of the Trust Estate not then or theretofore
released as security for the full amount of all
unpaid obligations, Lender may, from time to time,
and with advance notice (i) release any person so
liable, (ii) extend the maturity or alter any of
the terms of the obligation, (iii) grant other
indulgences, (iv) release or reconvey, or cause to
be released or reconveyed at any time at Lender's
option any parcel, portion or all of the Trust
Estate, (v) take or release any other or
additional security for any obligation herein
mentioned, or (vi) make compositions or other
arrangements with debtors in relation thereto. By
accepting payment or performance of any obligation
secured by this Deed of trust after the payment or
performance is due or after the filing of a notice
of default and election to sell, Lender shall not
have thereby waived its right to require prompt
payment or performance, when due, of all other
obligations secured hereby, or to declare a
default for failure so to pay or perform, or to
proceed with the sale under any notice of default
and election to sell thereafter given by Lender,
or with respect to any unpaid balance of the
indebtedness secured hereby. The acceptance by
Lender of any sum in an amount less than the sum
then due shall not constitute a waiver of the
obligation of Borrower to pay the entire sum then
due. Borrower's failure to pay the entire sum then
due shall continue to be a default,
notwithstanding the acceptance of partial payment,
and until the entire sum then due shall have been
paid, Lender or Trustee shall at all times be
entitled to declare a default and to exercise all
the remedies herein conferred, and the right to
proceed with a sale under any notice of default
and election to sell shall in no way be impaired,
whether or not such amounts are received prior or
subsequent to such notice. No delay or omission of
Trustee or Lender in the exercise of any right or
power hereunder shall impair such right or power
or any other right or power or shall the same be
construed to be a waiver of any default or any
acquiescence therein.
13
Section 1.19. OTHER INSTRUMENTS.
Borrower shall punctually pay all amounts due
and payable, and shall promptly and faithfully
perform or observe each and every other obligation
or condition to be performed or observed under
each deed of trust mortgage or other lien or
encumbrance, lease, sublease, declaration,
covenant, condition, restriction, license, order
or other instrument or agreement which affects or
appears to affect the Trust Estate, whether at law
or in equity.
Borrower will promptly supply lender with the
current financial statements of Borrower and other
information concerning the affairs and properties
of Borrower as Lender may reasonably request, and
will promptly notify Lender of any adverse
material change in the financial condition of the
Borrower or in the physical condition of the
Property or the Project.
ARTICLE II
ASSIGNMENT OF RENTS, ISSUES AND PROFITS
Section 2.01. ASSIGNMENT OF RENTS ISSUES AND
PROFITS.
Borrower hereby assigns and transfers
absolutely to Lender all of the Rents of the Trust
Estate (the "Rents") and hereby gives to and
confers upon Lender the right, power and authority
to collect such Rents. Borrower irrevocably
appoints Lender upon event of default its true and
lawful attorney-in-fact, at the option of the
Lender, at any time and from time to time, to
demand, receive and enforce payment, to give
receipts, releases and satisfactions, and to xxx,
in its name or in the name of Borrower for all
such Rents, and apply the same to the obligations
secured hereby; provided, however, that Borrower
shall have the right to collect such Rents (but no
more than one month in advance unless the written
approval of Lender has first been obtained), and
to retain and enjoy the same, so long as an Event
of Default shall not have occurred hereunder and
be continuing. The Assignment of the Rents in this
Article II is intended to be an absolute
assignment from Borrower to Lender and not merely
the passing of a security interest. The foregoing
power of attorney is coupled with an interest and
cannot be revoked.
Section 2.02. COLLECTION UPON DEFAULT.
Upon the occurrence of an Event of Default
hereunder, Lender may, at any time, with notice,
either in person, by agent or by a receiver
appointed by a court, and without regard to the
adequacy of any security for the indebtedness
hereby secured, enter upon and take possession of
the Trust Estate, or any part thereof, and, with
or without taking possession of the Trust Estate
or any part thereof, in its own name xxx for or
otherwise collect such Rents (including those past
due and unpaid, and all prepaid Rents and all
other monies which may have been or may hereafter
be deposited with Borrower by any lessee or tenant
of Borrower to secure the payment of any rent or
for any services thereafter to be rendered by
Borrower for any other obligation of any tenant to
Borrower arising under any lease, and Borrower
agrees that, upon the occurrence of any Event of
Default hereunder, Borrower shall promptly deliver
all such Rents and other monies to Lender), and
Lender may apply the same less reasonable costs
and expenses of operation
14
and collection, including, without limitation,
attorneys fees (subject to California Civil Code
Section 1717), whether or not suit is brought or
prosecuted to judgment, upon any indebtedness or
obligation of Borrower secured hereby, and in such
order as Lender may determine notwithstanding that
said indebtedness or the performance of said
obligation may not then be due. The collection of
such Rents, or the entering upon and taking
possession of the Trust Estate, or the application
thereof as aforesaid, shall not cure or waive any
default or notice of default hereunder or
invalidate any act done in response to such
default or pursuant to such notice of default or
be deemed or construed to make Lender a mortgagee-
in-possession of the Trust Estate or any portion
thereof.
Section 2.03. FURTHER ASSIGNMENTS.
Upon demand of Lender, Borrower shall, from
time to time hereafter, execute and deliver to
Lender recordable assignments of Borrower's
interest in any or all leases, subleases,
contracts, rights, licenses and permits now or
hereafter affecting the Trust Estate or any
portion thereof. Such assignments shall be made by
instruments in form and substance satisfactory to
Lender; provided, however, that no such assignment
shall be construed as imposing upon Lender any
obligation with respect thereto. A default by
Borrower in the performance of any covenant of any
lease or other instrument so assigned to Lender
which causes a material diminution in the value of
the Trust Estate, by reason of which default the
lessee or other party thereunder has the right to
cancel such lease or other instrument or to claim
any diminution or offset against future Rents
shall, at the option of Lender, constitute a
default hereunder and under the Financing
Documents, and Lender shall have all the rights
and remedies set forth herein as if such default
had occurred hereunder. Lender may, at its option,
exercise its rights hereunder or under any such
specific assignment, and such exercise shall not
constitute a waiver of any right hereunder or
under such specific assignment.
ARTICLE III
SECURTTY AGREEMENT
Section 3.01. CREATION OF SECURITY INTEREST.
Borrower hereby grants to Lender a security
interest in all of Borrower's estate, right, title
and interest, now owned or hereafter acquired, in
and to the property described in Exhibit "B"
attached hereto and by this reference incorporated
herein (individually and collectively, "Personal
Property"), to the extent that such property is
not real property under the laws of the State of
California, for the purpose of securing all
obligations of Borrower contained in the Note.
Section 3.02. WARRANTIES, REPRESENTATIONS AND
COVENANTS OF BORROWER.
Borrower hereby represents and warrants as of
the date hereof and covenants as follows:
(a) Borrower maintains its principal office
in the State of Washington, and Borrower will
immediately notify Lender in writing of any change
in its principal place of business.
15
(b) All covenants, obligations, waivers and
releases of Borrower contained herein relating to
the Trust Estate (other than the provisions of
Section 4.03 hereof, relating to the sale of the
Trust Estate by Trustee under the Trustee' s power
of sale) shall be deemed to apply to the Personal
Property and the rights and obligations of
Borrower and Lender with respect thereto whether
or not expressly referred to in this Article III.
(c) At the request of Lender, Borrower will
execute one or more financing statements and
renewals and amendments thereof pursuant to the
Uniform Commercial Code of California and such
other documents as Lender deems necessary to
impose, perfect or continue the perfection of the
security interest herein created, all in form
satisfactory to Lender, and will pay the cost of
filing the same in all public offices wherever
filing is deemed by Lender to be necessary or
desirable.
(d) This Deed of Trust constitutes a Security
Agreement as that term is used in the Uniform
Commercial Code of California and any other state
in which any of the Personal Property is located;
and Lender shall have all the rights and remedies
of a secured party under the Uniform Commercial
Code as in effect therein from time to time as
well as all other rights and remedies available at
law or in equity.
(e) Except for the security interest granted
hereby, Borrower is, and as to portions of the
Personal Property to be acquired after the date
hereof will be, the sole owner of the Personal
Property, free from any adverse lien, security
interest, encumbrance or adverse claim thereon of
any kind whatsoever. Borrower will notify Lender
of, and will defend the Personal Property against,
all claims and demands of all persons at any time
claiming the same or any interest therein. Nothing
in this agreement shall prevent Borrower from
obtaining equipment leases secured by equipment on
the property.
(f) Borrower will not lease, sell, convey or
in any manner transfer the Personal Property
without the prior written consent of Lender,
except in the ordinary course of business and
provided any Personal Property so transferred is
replaced immediately with like Personal Property
of equal or greater value.
(g) Except to the extent in transit thereto
after initial acquisition by Borrower, the
Personal Property will be kept on or at the
Premises and Borrower will not, without the prior
written consent of Lender, remove the Personal
Property therefrom except such portions or items
of Personal Property which are consumed or worn-
out in ordinary usage, all of which shall be
promptly replaced by Borrower.
Section 3.03. REMEDIES UPON DEFAULT.
Upon the occurrence of any Event of Default
hereunder, Lender shall have the right to cause
any of the Personal Property to be sold at any one
or more public or private sales as permitted by
applicable law, and Lender shall further have all
other rights and remedies, whether at law, in
equity, or by statute, as are available to secured
creditors under applicable law. Any such
disposition may be conducted by an employee or
agent of Lender or Trustee. Any person, including
both Trustee and Lender, shall be eligible to
purchase any part or all of such property at any
such disposition unless prohibited by law from
doing so. All expenses of retaking, holding,
preparing for sale, selling or the like
16
shall be borne by Borrower and shall include,
without limiting the generality of the foregoing,
Lender's and Trustee's reasonable attorneys fees
and legal expenses. Borrower, upon demand of
Lender, shall assemble such Personal Property and
make it available to Lender at such place as shall
be required by Lender in its sole discretion.
Lender shall give Borrower at least ten (10) days
prior written notice of the time and place of any
public sale or other disposition of such property
or of the timing of, or after which, any private
sale or any other intended disposition is to be
made, and if such notice
is sent to Borrower, as the same is provided for
the making of notices herein, it is hereby deemed
that such notice shall be and is reasonable notice
to Borrower.
Section 3.04. OTHER SECURITY AGREEMENTS.
Borrower may, concurrently herewith or
hereafter, execute and deliver to Lender a
security agreement with respect to all or part of
the Personal Property and, at the request of
Lender, other personal property. The rights and
obligations of Borrower and Lender with respect to
all personal property described therein
(including, without limitation, any of the
Personal Property which is described therein)
shall be controlled by the terms and provisions of
such security agreement to the extent, if any,
that the provisions of Article III of this Deed of
Trust are inconsistent therewith. To the extent
not inconsistent, the respective rights and
obligations of Borrower and Lender hereunder and
under any such security agreement shall be
cumulative.
Section 3.05. FIXTURE FILING FINANCING
STATEMENT.
This Deed of Trust is also a financing
statement filed as a fixture filing, covering the
Personal Property described in Exhibit "B" hereto,
and providing as follows:
(a) The debtor is Borrower.
(b) The secured party is Lender.
(c) The Personal Property is attached or
appurtenant to, or arises from, or is located on
or used in connection with, the Land described in
Exhibit "A".
(d) Certain items of the Personal Property
are or are to become fixtures on the Land, and
this Deed of Trust is to be recorded in the Real
Estate Records of the County in which the Land is
located.
ARTICLE IV
REMEDIES UPON DEFAULT
Section 4.01. EVENTS OF DEFAULT.
Any of the following events shall (after
the expiration of any applicable grace
period), be deemed an event of default
("Event of Default") hereunder:
(a) The occurrence of a Default as that term
is defined in the Note or any of the other
Financing Documents;
17
(b) Default shall be made in the payment,
when due, of any sum secured hereby; or
(c) To the extent that the following are not
included within the events described in clauses
(a) and (b) of this Section, there has occurred a
breach of or default under any term, covenant,
agreement, condition, provision, representation or
warrant of Borrower contained in (i) any lease to
which the Trust Estate or any portion thereof is
subject; or (ii) any document submitted to Lender
in connection with the obligations secured hereby;
or (iii) any Loan Document including the Note and
this Deed of Trust; provided. however, that if
Lender has received notice of such breach or
default, then the same shall not be an Event or
Default hereunder so long as either: (1) Lender
has waived the same in writing or (2) Borrower
shall have cured the same within the period, if
any, set forth in any such instrument or agreement
for such cure (or if no cure period is specified
then Lender shall give 30 days notice), or (3)
Borrower shall have cured the same within the
period specified by Lender, determined in its sole
discretion, as the period for cure in a written
notice delivered to Borrower;
(d) The Borrower's equity in the real
property which is encumbered by this Deed of Trust
is a material factor to Lender, and Lender makes
the loan which is secured by this Deed of Trust in
material reliance upon that equity. Therefore, in
order to assure Lender that the equity of Borrower
in the subject real property will not subsequently
be diluted, and in consideration for Lender making
the loan which is secured by this Deed of Trust,
Borrower hereby covenants and agrees that so long
as this Deed of Trust is a lien against the real
property described herein, Borrower will not
create or permit to continue in existence any
mortgage, deed of trust, pledge, encumbrance, lien
or charge of any kind against the subject real
property (including any unrecorded instrument
purporting to convey an interest in the real
property described herein) except for liens for
taxes not yet payable. The creation, subject to
the recordation of this Deed of Trust, of any such
mortgage, deed of trust, pledge, encumbrance, lien
or charge of any kind against the subject real
property (including any unrecorded instrument
purporting to convey an interest in the real
property described herein) shall be an Event of
Default under the terms of this Deed of Trust,
unless done in accordance with the terms of the
loan documents.
(e) Any representation or warranty in this
Deed of Trust or in any other instrument or
agreement evidencing, securing, guarantying or
otherwise relating to any of the secured
obligations is or becomes untrue or misleading in
any material respect.
Section 4.02. ACCELERATION UPON DEFAULT;
ADDITIONAL REMEDIES.
Upon the occurrence of an Event of Default,
Lender may, at its option, declare all
indebtedness and obligations secured hereby, to be
immediately due and payable with notice and
whether or not Lender exercises said option,
Lender may:
(a) Either in person or by agent, with or
without bringing any action or proceeding, or by a
receiver appointed by a court and without regard
to the adequacy of its security, enter upon and
take possession of the Trust Estate, or any part
thereof, in its own name or in the name of
Trustee, and do any act which it deems necessary
or desirable to preserve the value, marketability
or rentability of the Trust Estate, or part
18
thereof or interest therein increase the income
therefrom or protect the security hereof and, with
or without taking possession of the Trust Estate,
xxx for or otherwise collect the Rents including
those past due and unpaid, and apply the same,
less costs and expense of operation and cost
collection including, without limitation,
attorneys fees, upon any indebtedness secured
hereby, all in such order as Lender may determine.
The entering upon and taking possession of the
Trust Estate, the collection of such Rents and the
application thereof as aforesaid, shall not cure
or waive any default or notice of default
hereunder or invalidate any act done in response
to such default or pursuant to such notice of
default and, notwithstanding the continuance in
possession by Trustee, Lender or a receiver of all
or any portion of the Trust Estate or the
collection, receipt and application of any of the
Rents thereby, the Trustee or Lender shall be
entitled to exercise every right provided for in
any of the Financing Documents or by law upon
occurrence of any Event of Default, including the
right to exercise the power of sale;
(b) Commence an action to foreclose this Deed
of Trust as a mortgage, appoint a receiver, or
specifically enforce any of the covenants hereof;
(c) Deliver to Trustee a written declaration
of default and demand for sale, and a written
notice of default and election to cause Borrower's
interest in the Trust Estate to be sold, which
notice the Trustee or Lender shall cause to be
duly filed for record in the Official Records of
the County in which the Trust Estate. is located;
or
(d) Exercise all other rights and remedies
provided herein, in any Financing Document or
other document or agreement now or hereafter
securing all or any portion of the obligations
secured hereby, or provided by law.
Section 4.03. FORECLOSURE BY POWER OF SALE.
(a) Should Lender elect to foreclose by
exercise of the power of sale herein contained,
Lender shall notify Trustee and shall deposit with
Trustee this Deed of Trust and the Note and such
receipts and evidence of expenditures made and
secured hereby as Trustee may require.
(b) Upon receipt of such notice from Lender,
Trustee shall cause to be recorded, published and
delivered to Borrower such Notice of Default and
Election to Sell as is then required by law and by
this Deed of Trust. Trustee shall, without demand
on Borrower, after lapse of such time as may then
be required by law and after recordation of such
Notice of Default and after Notice of Sale having
been given as required by law, sell the Trust
Estate at the time and place of sale fixed by it
in said Notice of Sale, either as a whole, or in
separate lots or parcels or items, and in such
order as Lender may direct Trustee to do, at
public auction to the highest bidder for cash in
lawful money of the United States payable at the
time of sale. Trustee shall deliver to such
purchaser or purchasers thereof its good and
sufficient deed or deeds conveying the property so
sold, but without any covenant or warranty,
express or implied. The recitals in such deed of
any matter or fact shall be conclusive proof of
the truthfulness thereof. Any person, including,
without limitation, Borrower, Trustee or Lender,
may purchase at such sale, and Borrower hereby
covenants to warrant and defend the title of such
purchaser or purchasers.
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(c) Upon nonjudicial foreclosure of this Deed
of Trust, Lender shall be entitled to credit bid
up to and including the entire amount of the
obligations and indebtedness secured hereby. If
Lender is the successful bidder, whether by credit
bid or otherwise, Lender shall take the property.
If Lender makes a combined credit and cash bid and
is the successful bidder, Trustee shall apply the
cash bid first to pay the holders of liens
subordinate hereto and encumbering the Premises,
in their respective order of priority; then to pay
delinquent taxes, if any; and shall pay any
remaining balance to the Borrower; or, if such
order of payment shall be prohibited by law, then
in such other order or priority as is required by
law. If a third party is the successful bidder at
such public auction, upon receipt of cash from
such bidder Trustee shall apply the cash bid
received from the third party, after deducting all
costs, fees and expenses of Lender and of the
trust, including costs of evidence of title in
connection with the sale, (i) first to pay all
sums due and owing to Borrower, with accrued
interest under the Note, and this Deed of Trust
and satisfaction of Borrower' s other obligations
under the Note and this Deed of Trust), and (ii)
the remainder, if any, to the person or persons
legally entitled thereto.
(d) The Trustee may postpone sale of all or
any portion of the Trust Estate by public
announcement at such time and place of sale, and
from time to time thereafter may postpone such
sale by public announcement or subsequently
noticed sale, and without further notice make such
sale at the time fixed by the last postponement,
or may, in its discretion, give a new notice of
sale.
(e) A sale of less than the whole of the
Trust Estate or any defective or irregular sale
made hereunder shall not exhaust the power of sale
provided for herein; and subsequent sales may be
made hereunder until all obligations secured
hereby have been satisfied, or the entire Trust
Estate sold, without defect or irregularity.
Section 4.04. REINSTATEMENT.
Borrower shall have the right to the extent
permitted by California law, following the
recording of the Notice of Default if the power of
sale herein is to be exercised, to pay to Lender
the principal balance due under the Note, with
interest thereon as provided for in the Note,
together with all other amounts advanced and
expenses incurred by Lender or Borrower hereunder
or under the Note, whereupon Borrower shall be
deemed to have cured the default theretofore
existing, and the Note and this Deed of Trust
shall remain in force and effect as if no Notice
of Default had been filed.
Section 4.05. APPOINTMENT OF RECEIVER.
If an Event of Default in this Deed of Trust
shall have occurred and be continuing, Lender, as
a matter of right and without notice to Borrower
or anyone claiming under Borrower, and without
regard to the then value of the Trust Estate or
the interest of Borrower hereby irrevocably
consents to such appointment and waives notice of
any application therefor. Any such receiver or
receivers shall have all the usual powers and
duties of receivers in like or similar cases and
all the powers and duties of Lender in case of
entry as provided herein and shall continue as
such and exercise all such powers until the date
of confirmation of sale of the Trust Estate unless
such receivership is sooner terminated.
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Section 4.06. APPLICATION OF FUNDS AFTER
DEFAULT.
Except as otherwise herein provided, upon the
occurrence of an Event of Default hereunder,
Lender may, at any time without notice, apply any
or all sums or amounts received and held by Lender
to pay insurance premiums, Impositions, or either
of them, or as rents or income of the Trust
Estate, or as insurance or condemnation proceeds,
and all other sums or amounts received by Lender
from or on account of Borrower or the Trust
Estate, or otherwise, upon any indebtedness or
obligation of the Borrower secured hereby, in such
manner and order as Lender may elect,
notwithstanding that said indebtedness or the
performance of said obligation may not yet be due.
The receipt, use or application of any such sum or
amount shall not be construed to affect the
maturity of any indebtedness secured by this Deed
of Trust, or any of the rights or powers of Lender
or Trustee under the terms of the Financing
Documents, or any of the obligations of Borrower
or any guarantor under the Financing Documents; or
to cure or waive any default or notice of default
under any of the Financing Documents; or to
invalidate any act of Trustee or Lender.
Section 4.07. COSTS OF ENFORCEMENT.
If any Event of Default occurs, Lender and
Trustee, and each of them, may employ an attorney
or attorneys to protect their rights hereunder.
Subject to California Civil Code Section 1717,
Borrower promises to pay to Lender, on demand, the
fees and expenses of such attorneys and all other
costs of enforcing the obligations secured hereby
including without limitation, recording fees, the
expense of a Trustee's Sale Guarantee, Trustee's
fees and expenses, receiver's fees and expenses,
and all other expenses of whatever kind or nature,
incurred by Lender and Trustee, and each of them,
in connection with the enforcement of the
obligations secured hereby, whether or not such
enforcement includes the filing of a lawsuit.
Section 4.08. REMEDIES NOT EXCLUSIVE.
Trustee and Lender, and each of them, shall
be entitled to enforce payment and performance of
any indebtedness or obligation secured hereby and
to exercise all rights and powers under this Deed
of Trust or under any Loan Document or other
agreement or any law now or hereafter in force,
notwithstanding some or all of the said
indebtedness and obligation secured hereby may now
or hereafter be otherwise secured, whether by
guaranty, mortgage, deed of trust, pledge, lien,
assignment or otherwise. Neither the acceptance of
this Deed of Trust nor its enforcement whether by
court action or pursuant to the power of sale or
other powers herein contained, shall prejudice or
in any manner affect Trustee's or Lender's right
to realize upon or enforce any other security now
or hereafter held by Trustee or Lender, it being
agreed that Trustee and Lender, and each of them,
shall be entitled to enforce this Deed of Trust
and any other security now or hereafter held by
Lender or Trustee in such or r and manner as they
may m their absolute discretion determine. No
remedy herein conferred upon or reserved to
Trustee or Lender is intended to be exclusive of
any other remedy herein or by law provided or
permitted, but each shall be cumulative and shall
be in addition to every other remedy given
hereunder or now or hereafter existing at law or
in equity or by statute. Every power or remedy
given by any of the Financing Documents to the
Trustee or Lender or to which either of them may
be otherwise entitled may be exercised,
concurrently or
21
independently, from time to time and as often as
may be deemed expedient by the Trustee or Lender
and either of them may pursue inconsistent
remedies.
ARTICLE V
MISCELLANEOUS
Section 5.01. AMENDMENTS.
This instrument cannot be waived, changed,
discharged or terminated orally, but only by an
instrument in writing signed by the party against
whom enforcement of any waiver, change, discharge
or termination is sought. A copy of said
instrument shall be sent by said party to all
other parties in the manner specified in Section
5.06 hereof.
Section 5.02. BORROWER WAIVER OF RIGHTS.
Borrower waives to the extent permitted by
law, (i) the benefit of a11 laws now existing or
that may hereafter be enacted providing for any
appraisal before sale of any portion of the Trust
Estate, and, whether now existing or hereafter
arising or created, (ii) valuation, appraisal,
stay of execution, notice of election to mature or
declare due the whole of the secured indebtedness
and marshaling in the event of foreclosure of the
liens hereby created, and (iii) all rights and
remedies which Borrower may have or be able to
assert by reason of the laws of the State of
California pertaining to the rights and remedies
of sureties; however, Borrower does not waive any
rights granted by California Civil Code Sections
2924, 2924b and 2924c or Code of Civil Procedure
Sections 580a, 580d and 726.
Section 5.03. STATEMENT BY BORROWER.
Borrower shall, within ten (10) days after
notice thereof from Lender, deliver to Lender a
written statement setting forth the amounts then
unpaid and secured by this Deed of Trust and
stating whether any offset or defense exists
against such amounts.
Section 5. 04. LENDER STATEMENTS.
For any statement or accounting requested by
Borrower or any other entitled person pursuant to
any provision of applicable law, or for any other
document or instrument furnished to Borrower by
Lender, Lender may charge the maximum amount
permitted by law at the time of the request
therefor, or if there be no such maximum, then in
accordance with Lender's reasonable customary
charges therefor or the actual cost to Lender
therefor, whichever is greater.
Section 5.05. RECONVEYANCE BY TRUSTEE.
Upon written request of Lender stating that
all sums and obligations secured hereby have been
paid and fully performed, and upon surrender by
Lender of this Deed of Trust and the Note to
Trustee for cancellation and retention and upon
payment by Borrower of Trustee's fees and the
costs and expenses of executing and recording any
requested reconveyance, Trustee shall reconvey to
Borrower, or to the person or persons legally
entitled thereto, without warranty, any portion of
the Trust Estate then held
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hereunder. The recitals in any such reconveyance
of any matter or fact shall be conclusive proof of
the truthfulness thereof. The grantee in any such
reconveyance may be described as "the person or
persons legally entitled thereto. "
Section 5.06. ACCEPTANCE BY TRUSTEE.
Trustee accepts this Trust when this Deed of
Trust, duly executed and acknowledged, is made a
public record as provided by law.
Section 5.07. CAPTIONS.
The captions or headings at the beginning of
Articles, Sections and Subparagraphs hereof are
for the convenience of the parties, are not a part
of this Deed of Trust, and shall not be used in
construing it.
Section 5.08. INVALIDITY OF CERTAIN
PROVISIONS.
Every provision of this Deed of Trust is
intended to be severable. In the event any term or
provision hereof is declared to be illegal,
invalid or unenforceable for any reason whatsoever
by a court of competent jurisdiction, such
illegality, invalidity or unenforceability shall
not affect the balance of the terms and provisions
hereof, which terms and provisions shall remain
binding and enforceable. If the lien of this Deed
of Trust is invalid or unenforceable as to any
part of the debt, or if the lien is invalid or
unenforceable as to any part of the Trust Estate,
the unsecured or partially secured portion of the
debt shall be completely paid prior to the payment
of, the remaining and secured or partially secured
portion of the debt, and all payments made on the
debt, whether voluntary or under foreclosure or
other enforcement action or procedure, shall be
considered to have been first paid on and applied
to the full payment of that portion of the debt
which is not secured or fully secured by the lien
of this Deed of Trust.
Section 5. 09. SUBROGATION.
To the extent that sums are paid by Lender,
either directly or indirectly, to pay any
outstanding lien, charge or prior encumbrance
against the Trust Estate, Lender shall be
subrogated to any and all rights and liens held by
any owner or holder of such outstanding liens,
charges and prior encumbrances, irrespective of
whether said liens, charges or encumbrances are
released.
Section 5.10. NO MERGER OF LEASE.
Upon the foreclosure of the lien created by
this Deed of Trust on the Trust Estate pursuant to
the provisions hereof, any lease or sublease then
existing and affecting all or any portion of the
Trust Estate shall be destroyed or terminated by
application of the law of merger or as a matter of
law or as a result of such foreclosure unless
Lender or any purchaser at such foreclosure sale
shall so elect. No act by or on behalf of Lender
or any such purchaser shall constitute a
termination of any lease or sublease unless Lender
or such purchaser shall give written notice
thereto to such tenant or subtenant. If both the
lessor's and lessee's estate under any lease or
any portion thereof which constitutes a part of
the Trust Estate shall at any time become vested
in one owner, this Deed of Trust and the lien
created hereby shall not be destroyed or
terminated by application of the doctrine
23
of merger unless Lender shall continue to have and
enjoy all of the rights and privileges of Lender
as to the separate estates.
Section 5.11. GOVERNING LAW.
This Deed of Trust shall be governed by and
construed under the internal the laws of the State
of California except to the extent federal law
applies.
Section 5.12. STATUTE OF LIMITATIONS.
Except insofar as now or hereafter prohibited
by law, the right to plead, use or assert any
statute of limitations as a plea or defense or bar
of any kind, or for any purpose, to any debt,
demand or obligation secured or to be secured
hereby, or to any, complaint or other pleading or
proceeding filed, instituted or maintained for the
purpose of enforcing this Deed of Trust or any
rights hereunder, is hereby waived by Borrower.
Section 5.13. INTERPRETATION.
In this Deed of Trust the singular shall
include the plural and the masculine shall include
the feminine and neuter and vice versa, if the
context so requires; and the word
"person" shall include corporation, partnership or
other form of association.
Section 5.14. TRUST IRREVOCABLE: NO OFFSET.
The Trust created hereby is irrevocable by
Borrower. No offset or claim that Borrower now or
may in the future have against Lender shall
relieve Borrower from paying the indebtedness or
performing any other obligation contained herein
or secured hereby.
Section 5.15. CORRECTIONS.
Borrower shall, upon request of Lender,
promptly correct any defect, error or omission
which may be discovered in the contents hereof or
in the execution or acknowledgment hereof, and
will execute, acknowledge and deliver such further
instruments and do such further acts as may be
necessary or as may be reasonably requested by
Lender to carry out more effectively the purposes
hereof, to subject to the lien and security
interest hereby created any of Borrower's
properties, rights or interest secured or intended
to be secured hereby, or to perfect and maintain
such lien and security interest.
Section 5.16. FURTHER ASSURANCES.
Borrower, Lender and Trustee agree to do or
to cause to be done such further acts and things
and to execute and deliver or to cause to be
executed and delivered such additional
assignments, agreements, powers and instruments,
as any of them may reasonably require or deem
advisable to keep valid and effective the charges
and lien hereof, to carry into effect the purposes
of this Deed of Trust or to better assure and
confirm unto any of them their rights, powers and
remedies hereunder; and, upon request by Lender,
shall supply evidence of fulfillment of each of
the covenants herein contained concerning which a
request for such evidence has been made.
24
Section 5.17. EXECUTION OF INSTRUMENTS BY
TRUSTEE.
At any time, and from time to time, without
liability therefor and without notice, upon
written request of Lender and presentation of this
Deed of Trust and the Note secured hereby for
endorsement, and without affecting the personal
liability of any person for payment of the
indebtedness or the performance of any other
obligation secured hereby or the effect of this
Deed of Trust upon the remainder of the Trust
Estate, Trustee may (i) reconvey any part of the
Trust Estate, (ii) consent in writing to the
making of any map or plat thereof, (iii) join in
granting any easement thereon, or (iv) join in any
extension agreement, agreement subordinating the
lien or charge hereof, or other agreement or
instrument relating, hereto or to the Trust Estate
of any portion thereof. ~
Section 5.18. APPOINTMENT OF SUCCESSOR
TRUSTEE.
Trustee or any successor acting hereunder may
resign and thereupon be discharged of the trusts
created hereunder upon thirty (30) days written
notice to Lender. Regardless of whether such
resignation occurs, Lender may, from time to time,
substitute a successor or successors to any
Trustee named herein or acting hereunder in
accordance with any statutory procedure for such
substitution; or if Lender, in its sole
discretion, so elects, Lender may substitute such
successor or successors by recording in the office
of the recorder of the county or counties where
the Land is situated, an instrument executed by
Lender, and containing the name of the original
Borrower. Trustee and Lender hereunder, the book
and page where this Deed of Trust is recorded and
the name and address of the new Trustee, which
instrument shall be conclusive proof of proper
substitution of such successor Trustee or
Trustees; who shall, without conveyance from the
predecessor Trustee, succeed to all its title,
estate, rights, powers and duties hereunder.
Section 5.19. SUCCESSORS AND ASSIGNS.
This Deed of Trust applies to, insures to the
benefit of and binds all parties hereto their
heirs, legatees, devisees, administrators,
executors, successors and assigns.
Section 5.20. TOXIC WASTE.
Borrower represents to Lender that to the
best of its knowledge there are no toxic wastes or
other toxic or hazardous substances or materials
being stored or otherwise held on, under or about
the Property, by Borrower or any of its tenants or
any other person or entity, and Borrower shall at
no time permit the same. In the event that any
such wastes, substances or materials are hereafter
found on, under or about the Property, Borrower
shall take all necessary and appropriate actions
and shall spend all necessary sums to cause the
same to be cleaned up and immediately removed, and
Lender shall in no event be liable or responsible
for any costs or expenses incurred in so doing.
Borrower shall at all times observe and satisfy
the requirements of and maintain the Property in
compliance with all federal, state and local
environmental protection, occupational, health and
safety or similar laws, ordinances, restrictions,
licenses, and regulations, including but not
limited to the Federal Water Pollution Control Act
(33 X,X,X 0000 et seq.), Resource Conservation &
Recovery Act (42 U.S.C. 6901 et seq.), Safe
Drinking Water Act (42 U.S.C. 3000(f) et seq.),
Toxic Substances Control Act (15 U.S.C. 2601 et
seq.), the Clean Air Act (42 U.S.C. 7401 et seq.),
Comprehensive
25
Environmental Response of Compensation and
Liability Act (42 U.S.C. 9601 et. sec.),
California Health & Safety Code (25100 et. seq.),
and California Water Code (13000 et seq.). Should
Borrower at any time default in or fail to perform
or observe any of its obligations under this
Paragraph 5.20, Lender shall have the right, but
not the duty, without limitation upon any of
Lender's rights pursuant thereto, to perform the
same, and borrower agrees to pay to Lender, on
demand, all costs and expenses incurred by Lender
in connection therewith, including without
limitation all attorneys fees, together with
interest from the date of expenditure at the
interest rate then in effect under the Note.
Borrower hereby indemnifies Lender and agrees to
hold Lender harmless for any loss incurred by or
liability imposed on Lender by reason of
Borrower's failure to perform or observe any of
its obligations or agreements under this Paragraph
5.20. The obligations and indebtedness of Borrower
under this Paragraph 5.20, notwithstanding
anything contained herein or in any other document
or agreement which may be construed to the
contrary, (a) shall be deemed to be an unsecured
obligation of Borrower and shall not be secured by
this Deed of Trust, (b) shall not be subject to
California Code of Civil Procedure Sections 580a,
580d, 726 or any other antideficiency laws, and
(c) shall survive the foreclosure of this Deed of
Trust and the repayment of the Note and other
indebtedness secured by this Deed of Trust.
Section 5. 21. PRIORITY.
This Deed of Trust is intended to
have and retain priority over all other liens and
encumbrances upon the Trust Estate, excepting
only: (i) such impositions as, at the date hereof,
have, or by law gain, priority over the lien
created hereby; (ii) covenants, conditions,
restrictions, easements, and rights of way which
are of record or are disclosed of record and which
affect the Trust Estate on the date hereof; and,
(iii) Leases, liens, encumbrances and other
matters as to which Lender hereafter expressly
subordinates the lien of this Deed of Trust by
written instrument in recordable form. Under no
circumstances shall Lender be obligated or
required to subordinate the lien hereof to any
Lease, lien, encumbrance, covenant or other matter
affecting the Trust Estate or any portion thereof.
Lender may, however, at Lender's option,
exercisable in its sole and absolute discretion,
subordinate the lien of this Deed of Trust, in
whole or in part, to any or all Leases, liens,
encumbrances, or other matters affecting all or
any portion of the Trust Estate by executing and
recording in the Office of the County Recorder of
the County and State in which the Land is located,
a unilateral declaration of such subordination
specifying the Lease, lien encumbrance or other
matter or matters to which this Deed of Trust
shall thereafter be subordinate.
5.22. NO ILLEGAL USE: SOURCE OF FUNDS.
Borrower represents and warrants to Lender
that to the best of the knowledge of Borrower, no
portion of the Trust Estate is being used for any
illegal purpose. Borrower covenants that so long
as this Deed of Trust remains a lien against the
Trust Estate, no portion of the Trust Estate will
be used for any illegal purpose. Borrower further
represents and warrants to Lender that none of the
funds used by Borrower to acquire the Trust Estate
come from any source which would render the Trust
Estate subject to seizure and/or forfeiture under
any state or federal law.
26
5.23. DISPUTE RESOLUTION.
Except as provided herein, all actions,
disputes, claims or controversies between or among
the parties (collectively "Disputes") shall be
resolved by arbitration as set forth below.
Disputes which are subject to this provision
include, except as provided herein, all contract,
tort and other matters of every kind arising out
of or related to the Note, this Deed of Trust or
any related agreement or instrument, the conduct
of the parties, or the past, present or future
relationship of or agreements between the parties.
Disputes shall be resolved by binding arbitration
in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. Any
party requesting arbitration under this provision
shall submit a demand for arbitration to the
other. The arbitration proceedings will be
conducted in the City of Redlands, California,
except to the extent the parties otherwise
mutually agree.
No provision of nor the exercise of any
rights under this Section shall limit the right of
any party (a) to foreclose against any real or
personal property collateral by the exercise of a
power of sale under the Deed of Trust or other
security agreement or instrument, or applicable
law, (b) to exercise self help remedies, or (c) to
obtain provisional or ancillary remedies such as
injunctive relief or the appointment of a receiver
from a court having jurisdiction, whether before,
during or after pendency of any arbitration or
referral. Lender shall also have the right to
commence an action for judicial foreclosure, and
in such action all disputed issues of fact and law
shall be referred to arbitration as provided in
this section.
In the event of any Dispute governed by this
Section, each of the parties shall pay its own
expenses, and, subject to the award of the
arbitrator or referee, shall pay an equal share of
the arbitrator's or referee's fees. The arbitrator
or referee shall have the power to award recovery
of all costs and fees (including attorneys' fees,
administrative fees, arbitrators' and referees'
fees and court costs) to the prevailing party.
In the event of any Dispute governed by this
Section, each of the parties shall pay its own
expense, and, subject to the award of the
arbitrator or referee, shall pay an equal share of
the arbitrator's or referee's fees. The arbitrator
or referee shall have the power to award recovery
of all costs and fees (including attorneys' fees,
administrative fees, arbitrators' and referees'
fees and court costs) to the prevailing party.
IN WITNESS WHEREOF, Borrower has caused this
Amended and Restated Deed of Trust to be executed
by its duly authorized representatives on March
25th , 1997.
EMERITUS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxx
Title: President
00
XXXXX XX XXXXXXXXXX
XXXXXX XX XXXX
Xx March 25, 1997, before me, Xxxxxxxxx X. Xxxxxxx
personally appeared Xxxxxxx X. Xxxxxxxxxx,
personally known to me to be the person whose name
is subscribed to the within instrument and
acknowledged to me that he executed the same in
his authorized capacity, and that by his signature
on the instrument the person or the entity upon
behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Signature /s/ Xxxxxxxxx X. Xxxxxxx [SEAL]
28
