RECORDING REQUESTED BY
and when recorded mail to:
Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxx & Xxxxxxx P.L.C.
Two North Central Avenue, 18th Floor
Phoenix, Arizona 85004
805941 TC
DEED OF TRUST, SECURITY
AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS AND FIXTURE
FILING
The Promissory Note secured by this Deed of
Trust contains provisions for a variable interest
rate.
This Deed of Trust, Security Agreement,
Assignment of Leases and Rents and Fixture Filing
(hereinafter referred to as "Deed of Trust") made
and entered into as of this 10th day of January,
1997, by Fairfield Retirement Center, LLC, a
California limited liability company ("Trustor"),
whose address is c/o NorthBay Health Advantage,
0000 X. Xxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000, to Chicago Title Company, a
California corporation ("Trustee"), whose address
is 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000,
for the benefit of FINOVA Capital Corporation, a
Delaware corporation ("Baneficiary"), whose
address is 0000 Xxxx Xxxxxx Xxxxx, Xxxxx Xxxxx,
Xxxxx Xxxx, Xxxxxxxxxx 00000 with a copy to 0000
Xxxx Xxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, Attn: Vice President -Group
Counsel.
WITNESSETH:
ARTICLE
I
DEFINITIONS
1.1 As used herein, the following terms shall have
the following meanings
(a) BENEFICIARy: FINOVA Capital Corporation
and the subsequent holder or holders, from time to
time, of the Note.
(b) COLLATERAL: The meaning given such term
in Article IX below
(c) DEBTOR RELIEF LAWS: Any applicable state,
federal or other liquidation, conservatorship,
bankruptcy, moratorium, rearrangement, insolvency,
reorganization, or similar laws affecting the
rights or remedies of creditors generally, as in
effect from time to time.
(d) ESCROWED SUMS: The amounts paid by
Trustor to Beneficiary pursuant to Paragraph 11.14
hereof to be held by Beneficiary in a fund for the
payment of Impositions and insurance premiums.
(e) EMERITUS DEED OF TRUST: That certain Deed
of Trust dated July 31, 1996 executed by Trustor
for the benefit of Emeritus Corporation, recorded
on August 1, 1996 under Series No. 96-51994,
Official Records, Xxxxxx County, California, as
amended by instrument recorded essentially
simultaneously herewith, securing the payment of a
promissory note in the original principal amount
of $2,500,000 of even date therewith, executed by
Trustor and payable to the order of Emeritus
Corporation.
(f) ENVIRONMENTAL CERTIFICATE. That certain
Environmental Certificate with Representations,
Covenants and Warranties of even date herewith, as
amended, renewed, replaced or restated.
(g) EVENT OF DEFAULT: Any happening or
occurrence described in Article VI herein.
(h) FINANCIAL STATEMENTS: The balance sheets,
profit and loss statements, reconciliations of
capital and surplus, changes in financial
condition, schedules of sources and applications
of funds, and other financial information of
Trustor heretofore furnished to Beneficiary or
required to be furnished to Beneficiary under the
terms of the Security Documents from time to time,
which statements shall be prepared in such scope,
detail and form as shall be reasonably acceptable
to Beneficiary and shall be certified by Trustor.
(i) FIXTURES: All of Trustor's materials,
supplies, equipment, apparatus and other items now
or hereafter attached tO, installed on or in the
Land or the Improvements, or which in some fashion
are deemed to be fixtures to the Land or
Improvements under the laws of the State of
California, including the California Uniform
Commercial Code, as it may be amended from time to
time (the "UCC"), other than those owned by
tenants under any lease. The term "FIXTURE" shall
include, without limitation, all items of
Trustor's Personalty to the extent that the same
may be deemed fixtures under applicable law.
(j) GOVERNMENTAL AUTHORITY: Any and all
courts, boards, agencies, commissions, offices or
authorities of any nature whatsoever for any
governmental xxxx (xxxxxxx, xxxxx, xxxxxx,
xxxxxxxx, xxxxxxxxx, xxxx or otherwise) whether
now or hereafter in existence.
(k) GOVERNMENTAL REQUIREMENTS: The term
Governmental Requirements shall mean all statutes,
laws, ordinances, orders, writs, injunctions,
decrees, rules and regulations of any Governmental
Authority applicable to Trustor, the Mortgaged
Property or the Improvements.
(1) GUARANTORS: BW (Fairfield) Real Estate
Corporation, a California corporation, Emeritus
Corporation, a Washington corporation, and
NorthBay Health Advantage, a California public
non-profit benefit corporation.
(m) GUARANTY: Any instrument of Guaranty
executed by any of the Guarantors and delivered to
Beneficiary guaranteeing the repayment of all or
any portion of the Indebtedness and the
performance of the Obligations.
(n) IMPOSITIONS: All real estate and personal
property taxes; water, gas, sewer, electricity and
other utility rates and charges; charges imposed
pursuant to any suWivision, planned unit
development or condominium declaration or
restrictions; charges for any easement, license or
agreement maintained for the benefit of the
Mortgaged Property, and all other taxes, charges
and assessments and any interest, costs
2
or penalties with respect thereto of any kind and
nature whatsoever which at any time prior to or
after the execution hereof may be assessed, levied
or imposed upon the Mortgaged Property or the
ownership, use, occupancy or enjoyment thereof.
(o) IMPROVEMENTS: Any and all buildings,
structures, open parking areas and other
improvements, and any and all accessions,
additions, replacements, substitutions or
alterations thereof or appurtenances thereto, now
or at any time hereafter situated, placed or
constructed upon the Land or any part thereof.
(p) INDEBTEDNESS: (i) The principal of,
interest on and all other amounts and payments now
or hereafter due under or secured by the Note and
the other Security Documents, together with all
funds hereafter advanced by Beneficiary to or for
the benefit of Trustor as contemplated by any
covenant or provision herein contained or
contained in the Note or any other Security
Document, all such advances to have the same
priority as the funds initially advanced under the
Note, (ii) payment and performance of all
obligations of Trustor under this Deed of Trust,
including payment of all sums expended or advanced
by Beneficiary hereunder to protect or preserve
the Mortgaged Property, or the lien hereof on the
Mortgaged Property, or for taxes, assessments or
insurance premiums as hereinafter provided,
together with interest thereon as provided herein,
(iii) payment and performance of all future
advances and other obligations that Trustor may
agree to pay or perform (whether as principal,
surety or guarantor) for the benefit of
Beneficiary, when such obligation is evidenced by
a writing which states that it is secured by this
Deed of Trust, and (iv) all mod)fications,
extensions and renewals (if any) of one or more of
the obligations secured hereby, including without
limitation (a) mod)fications of the required
principal payment dates or interest payment dates,
deferring or accelerating payment dates wholly or
partly, and (b) mod)fications, extensions or
renewals at a different rate of interest whether
or not, in the case of a note or other contract,
the mod)fication, extension or renewal is
evidenced by a new or additional promissory note
or other contract.
(q) LAND: The real estate or any interest
therein described in Exhibit "A" attached hereto
and made a part hereof, together with all
Improvements and Fixtures and all rights, titles
and interests appurtenant thereto.
(r) LEASES: All of the lessor's right, title
and interest in and to any and all leases,
subleases, licenses, concessions or other
agreements (written or verbal, now or hereafter in
effect) which grant a possessory interest in and
to, or the right to extract, mine, reside in, sell
or use the Mortgaged Property, and all other
agreements, including, but not limited to, utility
contracts, maintenance agreements and service
contracts, which in any way relate to the use,
occupancy, operations, maintenance, enjoyment or
ownership of the Mortgaged Property, save and
except any and all leases, subleases or other
agreements pursuant to which Trustor is granted a
possessory interest in the Land.
(s) LEGAL REQUIREMENTS: (i) Any and all
present and future judicial decisions, statutes,
rulings, rules, regulations, permits, certificates
or ordinances of any Governmental Authority in any
way applicable to Trustor or the Mortgaged
Property, including but not limited to those
respecting the ownership, use, occupancy,
possession, operation, maintenance, alteration,
repair or reconstruction thereof, (ii) Trustor's
presently or subsequently effective by-laws and
articles of incorporation, or any instruments
establishing any partnership, limited partnership,
joint venture, trust or other form of business
association (if either, both or all by any of
same), (iii) any and all Leases and other
contracts (written or oral) of any nature to which
Trustor may be bound and (iv) any and all
restrictions, reservations, conditions, easements
or other covenants or agreements of record
affecting the Mortgaged Property.
3
(t) LOAN AGREEMENT: That certain Loan
Agreement between Trustor and Beneficiary of even
date herewith.
(u) MORTGAGED PROPERTY: The Land,
Improvements, Fixtures, Personalty, Leases and
Rents, together with:
(i) all rights, privileges, tenements,
hereditaments, rights-of-way, easements,
appendages and appurtenances in anywise
appertaining thereto, and all right, title and
interest of Trustor in and to any streets, ways,
alleys, strips or gores of land adjoining the Land
or any part therein or thereof;
(ii) all betterments, accessions, additions,
appurtenances, substitutions, replacements and
revisions thereof and thereto and all reversions
and remainders therein;
(iii) all other interest of every kind and
character which Trustor now has or at anytime
hereafter acquires in and to the above-described
real and personal property and all property which
is used or useful in connection therewith,
including rights of ingress and egress, easements,
licenses, and all reversionary rights or interests
of Trustor with respect to such property. To the
extent permitted by law, all of the Personalty and
Fixtures are to be deemed and held to be a part of
and affixed to the Land. In the event the estate
of Trustor in and to any of the Land and
Improvements is a leasehold estate, this
conveyance shall include and the lien, security
interest and assignment created hereby shall
encumber and extend to all other, further or
additional title, estates, interest or rights
which may exist now or at any time be acquired by
Trustor in or to the property demised under the
lease creating such leasehold estate and including
Trustor's rights, if any, to purchase the property
demised under such lease and, if fee simple title
to any of such property shall ever become vested
in Trustor, such fee simple interest shall be
encumbered by this Mortgage in the same manner as
if Trustor had fee simple title to such property
as of the date of execution hereof; and
(iv) any and all other security and
collateral of any nature whatsoever, now or
hereafter given for the repayment of the
Indebtedness or the performance and discharge of
the Obligations, including the Escrowed Sums,
hereinafter defined.
As used in this Mortgage, the term "Mortgaged
Property" is expressly defined as meaning all or,
where the context permits or requires, any portion
of the above and all or, where the context permits
or requires, any interest therein.
(v) NOTE: One certain promissory note of even
date herewith, executed by Trustor, payable to the
order of Beneficiary in the principal amount of
$12,800,000.00 as same may be amended, renewed or
extended from time to time.
(w) OBLIGATIONS: Any and all of the
covenants, warranties, representations and other
obligations, including the obligation to repay the
Indebtedness, made or undertaken by Trustor or
others to Beneficiary, Trustee or others as set
forth in the Security Documents, any other
documents or instruments executed in connection
with the Indebtedness.
(x) PERMITTED ENCUMBRANCES: The outstanding
liens, easements, building lines, restrictions,
security interests and other matters (if any) as
set forth on Schedule B of the title policy
delivered to Beneficiary by Trustor concurrently
with the recording hereof.
4
(y) PERSONALTY: All of the right, title and
interest of Trustor in and to all tangible and
intangible personal property which is now or
becomes attached tO, installed on or placed on or
used on or in connection with or which is acquired
for such attachment, installation, placement or
use, or which arises out of the development,
improvement, financing, leasing, sale, operation
or use of the Land, Improvements, Fixtures or
other goods located on the Land or Improvements,
whether now owned or hereafter acquired,
including, but not limited to:
(i) all furnishings, building materials,
supplies, machines, engines, boilers, stokers,
pumps, fans, vents, blowers, dynamos, furnaces,
elevators, ducts, shafts, pipes, furniture
cabinets, shades, blinds, screens; plumbing,
heating, air conditioning, lighting, lifting,
ventilating, refrigerating, cooking, medical,
laundry and incinerating equipment; partitions,
drapes, carpets, rugs and other floor coverings,
awnings; call and sprinkler systems, fire
prevention and extinguishing apparatus and
equipment, water tanks, swimming pools,
compressors, vacuum cleaning systems; disposals,
dishwashers, ranges, ovens, kitchen equipment,
cafeteria equipment and recreational equipment;
(ii) all equipment, inventory, attachments,
partitions, goods, instruments, appliances,
furnishings, machinery, tools, raw materials,
component parts, work in progress and materials,
and all other tangible personal property of
whatsoever kind, used or consumed in the
improvement, use or enjoyment of the Land, the
Improvements or the Fixtures, now or any time
hereafter owned or acquired by Trustor, wherever
located and all products thereof whether in
possession of Trustor or whether located on the
Land or elsewhere;
(iii) all general intangibles relating to the
design, development, operation, management and use
of the Land, the Improvements and the Fixtures,
including, but not limited to: (a) all names under
which or by which the Land, the Improvements and
the Fixtures, may at any time be owned and
operated under, any such names or any variant
thereof and all goodwill in any way relating to
the Land, the Improvements and the Fixtures (it
being acknowledged that Trustor has only limited
rights to use the name "NorthBay");
(b) all permits, licenses, authorizations,
variances, trademarks, service marks, trade names,
symbols, land use entitlements, approvals,
consents, clearances, and rights obtained from
governmental agencies issued or obtained in
connection with the Land, the Improvements and the
Fixtures; (c) all permits, licenses, approvals,
consents, authorizations, franchises and
agreements issued or obtained in connection with
the use, occupation or operation of the Land, the
Improvements and the Fixtures; and (d) all
materials prepared for filing or filed with any
governmental agency;
(iv) all evidence of ownership of any part of
the Land, the Improvements, and the Fixtures that
is owned by Trustor in common with others,
including all water stock relating to the Land, if
any, and all documents or rights of membership in
any owners' or members' association or similar
group having responsibility for managing or
operating any part of the Land;
(v) all accounts, deposit accounts, security
deposits, accounts receivable, instruments,
documents, chattel paper, bank deposits, books and
records, documents of title, general intangibles,
rights to payment of every kind, all of Trustor's
rights, direct or indirect, under or pursuant to
any and all construction, development, financing,
guaranty, indemnity, maintenance, management,
service, supply and warranty agreements,
commitments, contracts, subcontracts, insurance
policies and the proceeds therefrom, licenses and
bonds now or anytime hereafter arising from
construction on the Land or the use or
5
enjoyment of the Land and the
Improvements including, without limitation,
maintenance agreements, service contracts and all
contracts and agreements for the operation,
management and leasing of the Land and/or the
Improvements;
(vi) all water, water stock, water capacity
or other water rights, licenses, permits,
warranties, irrigation rights, oil and gas rights,
minerals, crops and timber, and wastewater and
storm drainage discharge capacity attributable or
allowable to all or any portion of the Land, the
Improvements and any other property, both real and
personal, hereinabove described;
(vii) all rights, titles and interests in and
to all of the plans, specifications, drawings,
surveys, maps and plats, including, but not
limited to, plot plans, foundation plans, floor
plans, elevations, framing plans, cross-sections
of walls, mechanical plans, electrical plans and
architectural and engineering studies and analyses
heretofore or hereafter prepared by any architect
or engineer in respect to the Land, Improvements
or Fixtures;
(viii) all of Trustor's right, title and
interest in and to any award, remuneration,
settlement of compensation heretofore made or
hereafter to be made by any Governmental Authority
to Trustor, including those for any vacation of,
change of grade in, any streets affecting the Land
or the Improvements;
(ix) all of Trustor's right, title and
interest in and to all proceeds arising from or by
virtue of the sale, lease or other disposal of all
or any part of the Mortgaged Property (consent to
same not granted or to be implied hereby); and,
all proceeds (including premium refunds) payable
or to be payable under each policy of insurance
relating to the Mortgaged Property; and
(x) all additions, accessions, accessories,
amendments, mod)fications, extensions, renewals
and enlargements, and additions to, substitutions
for the products thereof, and all proceeds,
whether cash proceeds or noncash proceeds, and
including insurance and condemnation proceeds,
received when any of the foregoing property
described in (i) through (ix) above (or the
proceeds thereof) is sold, exchanged, leased,
licensed, or otherwise disposed of, whether
voluntarily or involuntarily or when earlier
received; such proceeds shall include any of the
foregoing specifically described property of
Trustor acquired with cash proceeds, together
with, and without limiting the above items, all
Goods, Accounts, Documents, Instruments, Money,
Chattel Paper and General Intangibles located on
or related to the Land, as those terms are defined
in the California Uniform Commercial Code.
(y) RENTS: All of the rents, revenues,
income, proceeds, royalties, profits and other
benefits paid or payable for using, leasing,
licensing, possessing, operating from or in,
residing in, selling, mining, extracting or
otherwise enjoying or using the Land, Fixtures,
Personalty or payable pursuant to the Leases.
(z) SECURITY DOCUMENTS: The Note, this Deed
of Trust, the Loan Agreement and any other
documents now or hereafter evidencing, securing
otherwise ancillary to the Note or the loan made
pursuant to the Loan Agreement, as they may be
hereafter amended, renewed, replaced or restated.
(aa) TRUSTEE: Chicago Title Company.
(bb) TRUSTOR: The above defined Trustor and
any and all subsequent record or equitable owners
of the Mortgaged Property.
6
ARTICLE
II
GRANT
2.1 For purposes of securing the payment and
performance of the Obligations (other than those
arising out of the Environmental Certificate) (i)
Trustor irrevocably grants, transfers and assigns
to Trustee in trust, with power of sale and right
of entry and possession, the Mortgaged Property
and (ii) Trustor absolutely and irrevocably
assigns to Beneficiary all right, title and
interest of Trustor in, to and under the Leases,
together with all Rents. Provided there does not
exist an Event of Default, Trustor shall have a
license to collect the Rents and exercise the
rights of Lessor under the Leases as more fully
set forth in that certain Assignment of Leases and
Rents of even date herewith from Trustor in favor
of Beneficiary. For the purposes of securing the
payment and performance of the Obligations (other
than those arising out of the Environmental
Certificate) and to protect the security of this
Deed of Trust, Trustor has executed and delivered
this Deed of Trust and makes the representations,
warranties and covenants set forth herein.
ARTICLE
III
WARRANTIES AND
REPRESENTATIONS
Trustor hereby unconditionally warrants and
represents to Beneficiary as follows:
3.1 ORGANIZATION AND POWER: (a) That Trustor
is duly organized, and validly existing under the
laws of the State of California, all in accordance
with applicable Legal Requirements, and the
Articles of Organization and Limited Liability
Company Agreement of Trustor are in full force and
effect and have not been amended or changed except
as disclosed in writing to Beneficiary; (b) no
proceeding is pending, planned or threatened for
the dissolution or annulment of Trustor or any of
its members; (c) all licenses, filing fees, income
and other taxes due and payable by Trustor have
been paid in full; (d) all conditions prerequisite
to Trustor doing business in California have been
done; and (e) Trustor has all requisite power and
authority to own, lease, operate and encumber the
Mortgaged Property.
3.2 VALIDITY OF DOCUMENTS: The execution,
delivery and performance by Trustor of the
Security Documents and the borrowing evidenced by
the Note (a) are within Trustor's powers and have
been duly authorized by Trustor's members and all
other requisite action; (b) have received all (if
any) requisite prior governmental approval in
order to be legally binding and enforceable in
accordance with the terms thereof; and (c) will
not violate, be in conflict with, result in a
breach of or constitute (with due notice or lapse
of time, or both) a default under, any Legal
Requirement or result in the creation or
imposition of any lien, charge or encumbrance of
any nature whatsoever upon Trustor's property or
assets, except as contemplated by the provisions
of the Security Documents. The Security Documents
constitute legal, valid and binding obligations of
Trustor obligated under the terms of the Security
Documents in accordance with their respective
terms (other than as such enforceability may be
subject to or limited by bankruptcy, insolvency,
reorganization, arrangement, moratorium, similar
laws relating or affecting rights of creditors
generally or general principles of equity), and
Trustor has full and lawful authority to bargain,
grant, sell, mortgage, assign, transfer and convey
all of the Mortgaged Property as set forth herein.
7
3.3 INFORMATION: All information, reports,
papers and data given to Beneficiary with respect
to Trustor or the Mortgaged Property are accurate,
complete and correct in all material respects and
do not omit any fact the inclusion of which is
necessary to prevent the facts contained therein
from being materially misleading.
3.4 TITLE TO MORTGAGED PROPERTV AND LIEN OF
THIS INSTRUMENT: Trustor has good and indefeasible
title in fee simple to the Land described on
Exhibit "A" attached hereto, and good and
indefeasible title to the Improvements, the
Fixtures and Personalty, Leases and Rents, free
and clear of any liens, charges, encumbrances,
security interests and adverse claims whatsoever
except the Permitted Encumbrances. This Deed of
Trust constitutes a valid, subsisting, first lien
deed of trust on the Land, the Improvements, the
Fixtures and a valid, subsisting first security
interest in and to the Personalty, Leases and
Rents, all in accordance with the terms hereof.
3.5 TAXES AND OTHER PAYMENTS: Trustor has
filed all federal, state, county, municipal and
city income and other tax returns required to have
been filed by it and has paid all taxes which have
become due pursuant to such returns or pursuant to
any assessments received by Trustor, and Trustor
does not know of any basis for any additional
assessment in respect of any such taxes. Trustor
has paid or will pay in full all sums owing or
claimed for labor, material, supplies, personal
property (whether or not constituting a Fixture
hereunder) and services of every kind and
character used, furnished or installed in the
Mortgaged Property which Trustor is obligated to
pay (subject to Trustor's right to contest such
amount owing on the condition that Trustor
immediately records and serves a surety bond
pursuant to applicable law or otherwise fully
protects Beneficiary from any loss or liability
arising therefrom) and no claim for same currently
exists, to the best of Trustor's knowledge, or
will be permitted to become past due.
3.6 LITIGATION: There are no actions, suits
or proceedings pending or, to the knowledge of
Trustor, threatened against or affecting the
Mortgaged Property (except as disclosed in writing
to Beneficiary) or involving the validity or
enforceability of this Deed of Trust or the
priority of the lien and security interest hereof,
and no event has occurred (including specifically
Trustor's execution of the Security Documents and
its consummation of the loan represented thereby)
which will violate, be in conflict with, result in
the breach of or constitute (with due notice or
lapse of time, or both) a default under, any Legal
Requirement or result in the creation or
imposition of any lien, charge or encumbrance of
any nature whatsoever upon any of Trustor-'s
property other than the lien and security interest
created by the Security Documents.
3.7 UTILITIES: All utility services in such
capacities as are necessary for the Mortgaged
Property and the operation thereof for their
intended purpose are available to the Mortgaged
Property and the operation thereof for their
intended purpose, including water supply, storm
and sanitary sewer facilities, gas, electric and
telephone facilities.
3.8 STREETS AND PARKING. All xxxxxxx xxxxx,
xxxxxxx, xxxxx, xxx/xx highways necessary for the
full utilization of the Improvements for their
intended purposes have been completed or the
necessary rights-of-way therefor have either
been acquired by the appropriate Governmental
Authority or have been dedicated to the public use
and accepted by such Governmental Authority.
3.9 PERMITS: All zoning, utility, building,
health and operating permits (if any) required for
the operation of the Improvements have been
obtained or will be obtained as contemplated by
and pursuant to the Loan Agreement.
8
ARTICLE IV
AFFIRMATIVE
COVENANTS
Trustor hereby unconditionally covenants and
agrees with Beneficiary as follows:
4.1 PAYMENT AND PERFORMANCE: Trustor will pay
the Indebtedness as and when called for in the
Security Documents and will perform all of the
Obligations in full and on or before the dates
they are to be performed.
4.2 EXISTENCE: Trustor will preserve and keep
in full force and effect its existence, rights,
franchises and trade names. Beneficiary
acknowledges that Trustor has only a limited right
to use the name "NorthBay".
4.3 COMPLIANCE WITH LEGAL REQUIREMENTS:
Trustor will promptly and faithfully comply or
cause compliance with, conform to and obey all
present and future Legal Requirements whether or
not same shall necessitate structural changes in,
improvements to, or interfere with the use or
enjoyment of, the Mortgaged Property. Without
limiting the generality of the foregoing covenant,
Trustor will comply or cause compliance with the
Americans with Disabilities Act of 1990 (42 U.S.C.
Section 12101 et seq.) as applicable to the
Mortgaged Property.
4.4 PAYMENT OF IMPOSITIONS: Subject to the
provisions of paragraph 11.14 herein, Trustor will
pay and discharge, the Impositions not later than
the earlier of the date same becomes delinquent,
the day any fine, penalty, interest or cost may be
added thereto or imposed or the day any lien may
be filed for the nonpayment thereof (if such day
is used to determine the due date of the
respective item); provided, however, that Trustor
may, if permitted by law and if installment
payments would not create or permit the filing of
a lien against the Mortgaged Property, pay the
Impositions in installments whether or not
interest shall accrue on the unpaid balance of
such Impositions. Trustor may in good faith, in
lieu of paying such Impositions as they become due
and payable, by appropriate proceedings, contest
the validity thereof. During such contest Trustor
shall not be deemed in default hereunder because
of such nonpayment if, prior to delinquency of the
asserted tax or assessment, Trustor furnishes
Beneficiary an indemnity bond, conditioned that
such tax or assessment with interest, cost and
penalties be paid as herein stipulated, secured by
a deposit in cash or security acceptable to
Beneficiary or with surety acceptable to
Beneficiary, in the amount of the tax or
assessment being contested by Trustor and a
reasonable additional sum to pay all possible
costs, interest and penalties imposed or incurred
in connection therewith. Upon conclusion of such
contest Trustor shall promptly pay any amount
adjudged by a court of competent jurisdiction to
be due, with all costs, penalties and interest
thereon prior to the date such judgment becomes
final or any writ or order is issued under which
the Mortgaged Property may be sold pursuant to
such judgment.
4.5 REPAIR: Following completion of the
improvements being constructed with the proceeds
of the Note, Trustor will keep or cause the
Mortgaged Property to be kept in a good condition
and presenting a good appearance and will make or
cause tenants of the Mortgaged Property to make
all repairs, replacements, renewals, additions,
betterments, improvements and alterations thereof
and thereto, interior and exterior, structural and
nonstructural, ordinary and extraordinary,
foreseen and unforeseen, which are necessary or
reasonably appropriate to keep same in such order
and condition, reasonable wear and tear excepted.
Trustor will also use all reasonable efforts to
prevent any act or occurrence
9
which might impair the value or usefulness of the
Mortgaged Property for its intended usages as set
forth in any plans and specifications for the
Improvements submitted to Beneficiary or in the
Security Documents. In instances where repairs,
replacements, renewals, additions, betterments,
improvements or alterations are required in and to
the Mortgaged Property on an emergency basis to
prevent loss, damage, waste or destruction
thereof, Trustor shall proceed to construct same,
or cause same to be constructed, notwithstanding
anything to the contrary contained in caragraph
5.2 hereinbelow; provided, however, that in
instances where such emergency measures are to be
taken, Trustor will promptly notify Beneficiary in
writing of the commencement of such emergency
measures and, when same are completed, the
completion date and the measures actually taken.
4.6 INSURANCE: Trustor shall obtain and
maintain, or cause to be obtained and maintained,
insurance upon and relating to the Mortgaged
Property as provided in the Loan Agreement.
4.7 RESTORATION FOLLOWING CASUALTY: If any
act or occurrence of any kind or nature (including
any casualty for which insurance was not obtained
or obtainable) shall result in damage to or loss
or destruction of the Mortgaged Property, Trustor
will give notice thereof to Beneficiary.
(A) CASUALTY DURING CONSTRUCTION TERM. In
case of any act
or occurrence of any kind or nature shall result
in damage to or loss or destruction of the
Mortgaged Property during the "Construction Term"
as defined on the Loan Agreement, (i) Beneficiary,
at its option, shall be entitled to receive and
retain the proceeds of all insurance policies
related to such damage or loss and apply same to
the Indebtedness, and (ii) if Beneficiary makes
the proceeds of insurance available to Trustor for
purposes of restoring the Mortgaged Property,
Trustor will promptly and at Trustor's sole cost
and expense commence and continue diligently to
completion to restore, repair, replace and rebuild
the Mortgaged Property as nearly as possible to
its value, condition, and character immediately
prior to such damage, loss or destruction. In such
a circumstance, such insurance proceeds shall be
disbursed in the same manner and subject to the
same condition and requirement as contained in the
Loan Agreement with respect to advances of the
proceeds of the Note.
(b) CASUALTY DURINC PERMANENT TERM. In case
of any act or occurrence of any kind or nature
shall result in damage or loss or destruction of
the Mortgaged Property during the "Permanent Term"
as defined in the Loan Agreement, the terms of
this subparagraph (b! shall apply. In case of loss
in which the cost of the restoration, repair or
replacement (hereinafter referred to as the
"Work") of the Mortgaged Property estimated by
Beneficiary shall not exceed the proceeds paid to
Beneficiary, then such proceeds may be used for
the prosecution of the Work in the manner
hereinafter provided. If the cost of the Work
estimated by Beneficiary shall exceed the proceeds
paid to Beneficiary, then unless Trustor deposits
with Beneficiary the difference between the
estimated cost of the Work and the amount of such
proceeds paid to Beneficiary within thirty (30)
days after written demand therefor, Beneficiary,
at its option, shall be entitled to receive and
retain the proceeds of the insurance policies,
applying the same upon the Indebtedness.
Notwithstanding anything herein to the contrary if
any loss shall occur (i) within one (1) year prior
to the scheduled maturity date of the Note, or
(ii) at anytime when there shall exist an Event of
Default hereunder, Beneficiary shall be entitled
to the benefit of all insurance policies held by
or for any Trustor, to the extent as if same had
been made payable to Beneficiary to the extent of
the Indebtedness; and upon foreclosure hereunder,
Beneficiary shall become the owner of any
insurance proceeds paid or to be paid under said
policies to the extent of the Indebtedness.
Subject to the foregoing, Beneficiary shall make
such insurance proceeds
10
available to Trustor to rebuild the Mortgaged
Property. Unless Beneficiary is entitled to retain
the insurance proceeds, Trustor will promptly and
at Trustor's sole cost and expense and regardless
of whether the insurance proceeds (if any) shall
be aufficient for the purpose, commence and
continue diligently to completion to restore,
repair, replace and rebuild the Mortgaged Property
as nearly as possible to its value, condition and
character immediately prior to such damage, loss
or destruction.
(c) DISBURSEMENT OF INSURANCE PROCEEDS.
Notwithstanding the foregoing to the contrary, if
the proceeds of the insurance described in
Paragraph 4.6 hereinabove are to be used for the
prosecution of the Work, such proceeds shall be
paid out by Beneficiary from time to time to
Trustor (or, at the option of Beneficiary, jointly
to Trustor and the persons furnishing labor and/or
material incident to such restoration, repair or
replacement or directly to such persons) as the
Work progresses, subject to the following
conditions: (aan architect or engineer, approved
by Beneficiary, shall be retained by Trustor (at
Trustor's expense) and charged with the
supervision of the Work and Trustor shall have
prepared, submitted to Beneficiary and secured
Beneficiary's written approval of the plans and
specifications for such Work which shall not be
unreasonably withheld or delayed; (b) each request
for payment by Trustor shall be made on ten (10)
days prior written notice to Beneficiary and shall
be accompanied by a certificate executed by the
architect or engineer supervising the Work
stating, among such other matters as may be
reasonably required by Beneficiary that: (i) all
of the Work completed has been done in compliance
with the approved plans and specifications; (ii)
the sum requested is justly required to reimburse
Trustor for payments by Trustor to, or is justly
due to, the contractor, subcontractors,
materialmen, laborers, engineers, architects or
other persons rendering services or materials for
the Work (giving a brief description of such
services and materials); (iii) when added to all
sums previously paid out by Trustor, the sum
requested does not exceed the value of the Work
done to the date of such certificate; and (iv) the
amount of insurance proceeds remaining in the
hands of Beneficiary will be aufficient on
completion of the Work to pay for the same in full
(giving in such reasonable detail as the
Beneficiary may require an estimate of the cost of
such completion); (c) each request shall be
accompanied by waivers of lien satisfactory in
form and substance to Beneficiary covering that
part of the Work completed prior to that part of
the Work for which payment or reimbursement is
being requested and by a search prepared by a
title company or licensed abstracter or by other
evidence satisfactory to Beneficiary that there
has not been filed with respect to the Mortgaged
Property any mechanic's lien or other lien,
affidavit or instrument asserting any lien or any
lien rights with respect to the Mortgaged
Property; (d) there has not occurred any Event of
Default (as herein defined) since the hazard,
casualty or contingency giving rise to payment of
the insurance proceeds occurred; (e) in the case
of the request for the final disbursement, such
request is accompanied by a copy of any
certificate of occupancy or other certificate
required by any Legal Requirement to render
occupancy of the damaged portion of the Mortgaged
Property lawful; and (f) if, in Beneficiary's
reasonable judgment, the amount of such insurance
proceeds will not be aufficient to complete the
Work (which determination may be made prior to or
during the performance of the Work), Trustor shall
deposit with Beneficiary, within thirty (30) days
after written
request therefor, an amount of money which when
added to such insurance proceeds will be
aufficient, in Beneficiary's reasonable judgment,
to complete the Work. If, upon completion of the
Work, any portion of the insurance proceeds has
not been disbursed to Trustor (or one or more of
the other aforesaid persons) incident thereto,
Beneficiary may at Beneficiary's option, disburse
such balance to Trustor or apply such balance
toward the payment of the Indebtedness. Nothing
herein shall be interpreted to prohibit
Beneficiary from (y) withholding from each such
disbursement ten percent ( 10%) (or such greater
amount, if permitted or required by any Legal
Requirement) of the amount otherwise herein
provided to be disbursed, and then continuing to
withhold such sum until the time
11
permitted for perfecting liens against the
Mortgaged Property has expired, at which time the
amount withheld shall be disbursed to Trustor (or
to Trustor and/or any person or persons furnishing
labor and/or material for the Work or directly to
such persons), or (z) applying at any time the
whole or any part of such insurance proceeds to
the curing of any Event of Default.
4.8 LEASES AND RENTS: The form and content of
all Leases of the Mortgaged Property shall be
reasonably acceptable to Beneficiary; however,
Beneficiary may elect to approve the standard form
of residency agreement in advance, in which event
Trustor shall be authorized to enter into Leases
on such form without, in each instance,
Beneficiary's consent. All Leases shall contain
provisions, in such form and content as shall be
reasonably acceptable to Beneficiary,
subordinating such leases, in lien and priority to
all payments due Beneficiary under this Deed of
Trust and the Security Documents. Trustor shall
not modify or amend the terms of any such Lease
without the prior written consent of Beneficiary
other than in the ordinary course of Trustor's
business.
4.9 INSPECTION: Trustor will permit Trustee
and Beneficiary and their agents, representatives
and employees to inspect the Mortgaged- Property
at all times, provided such inspection does not
unreasonably interfere with the conduct of
business by tenants occupying the Mortgaged
Property. Trustee and Beneficiary will notify
Trustor prior to any inspection.
4.10 DEFENSE OF TITLE: If the title of
Trustee to, or the interest of Beneficiary in, the
Mortgaged Property hereby conveyed, or any part
thereof, shall be endangered or shall be attached,
directly or indirectly, Trustor shall, at the sole
expense of Trustor or any title insurance company
issuing a policy of title insurance affecting the
Mortgaged Property, take (or cause such title
insurance company to take) all necessary and
proper steps for the defense of such title or
interest, including the employment of counsel, the
prosecution or defense of litigation and the
compromise or discharge of claims made against
such title or interest in the Mortgaged Property.
Trustor will indemnify and hold Beneficiary
harmless from and against any and all loss, cost,
damage, liability or expense (including all court
costs and attorneys' fees) incurred by Beneficiary
in protecting its interests hereunder in such an
event. In the event Beneficiary, in Beneficiary's
sole discretion is not satisfied with Trustor's
actions in such regard, Trustor hereby authorizes
Beneficiary, at Trustor's expense, to take all
necessary and proper steps for the defense of such
title or interest, including the employment of
counsel, the prosecution or defense of litigation
and the compromise or discharge of claims made
against such title or interest in the Mortgaged
Property.
4.11 FUTURE IMPOSITIONS: At any time any law
shall be enacted imposing or authorizing the
imposition of any tax upon this Deed of Trust or
upon any rights, titles, liens or security
interests created hereby or upon the Note, or any
part thereof, Trustor shall immediately pay all
such taxes; provided that, in the alternative,
Trustor may, in the event of the enactment of such
a law, and must if it is unlawful for Trustor to
pay such taxes, prepay the Note together with the
applicable "Prepayment Fee" as defined in the
Note, in full within sixty (60) days after demand
therefor by Beneficiary.
4.12 ESTOPPEL CERTIFICATES. Trustor shall,
upon request, promptly furnish, at any time and
from time to time a written statement or
affidavit, in such form as may be reasonably
required by Beneficiary, stating the amount of the
unpaid balance of the Note and that there are no
offsets or defenses against full payment of the
Note and performance of the terms hereof or, if
there are any such offsets and defenses,
specifying them in detail.
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4.13 ENVIRONMENTAL MATTERS:
(a) REPRESENTATIONS COVENANTS AND WARRANTIES.
Except as may be otherwise expressly stated in the
Disclosure Schedule attached as Exhibit "B" to the
Environmental Certificate (the "Disclosure
Schedule"), Trustor hereby represents, covenants
and warrants to Beneficiary and its successors and
assigns, as follows, and as to such
representations and warranties, the same are made
based upon contents of the Phase I report
described in the Disclosure Schedule and to the
best of Trustor's knowledge:
(i) The location and construction, occupancy,
operation and use of all Improvements do not and
will not violate any applicable laws, statute,
ordinance, rule, regulation, policy, order or
determination of any Governmental Authority or any
board of fire underwriters (or other body
exercising similar functions), or any restrictive
covenant or deed restriction affecting any portion
of the Mortgaged Property, including without
limitation, any applicable zoning ordinances and
building codes, flood disaster laws and health and
environmental laws, rules and regulations
(hereinafter collectively called the "Applicable
Laws").
(ii) Without in any way limiting the
generality of (a) above, neither the Mortgaged
Property nor the Trustor are the subject of any
pending or, to the best of Trustor's knowledge,
threatened investigation or inquiry by any
Governmental Authority, or are subject to any
remedial obligations under any Applicable Laws
pertaining to health or the environment
("Applicable Environmental Laws"), including,
without limitation, the Comprehensive
Environmental Response, Compensation, and
Liability Act of 1980, as amended ("CERCLA"), the
Resource Conservation and Recovery Act of 1987, as
amended ("RCRA"), and the Toxic Substances Control
Act, The Clean Air Act, and The Clean Water Act,
and applicable state laws, and this representation
and warranty would continue to be true and correct
following disclosure to any applicable
Governmental Authority of all relevant facts,
conditions and circumstances pertaining to the
Mortgaged Property and/or the Trustor.
(iii) Trustor is not required to obtain any
permits, licenses or authorizations to construct,
occupy, operate or use any portion of the
Mortgaged Property by reason of any Applicable
Environmental Laws, or if any such permits,
licenses or authorizations are required by any
Applicable Envirorimental Laws, such permits,
licenses or authorizations have, as of the date
hereof, been obtained or will be obtained in the
manner required by any Applicable Environmental
Laws in a timely manner.
(iv) Trustor has determined, to the best of
its knowledge, that no hazardous substances, solid
wastes, or other substances known or suspected to
pose a threat to health or the environment
("Hazards") have been disposed of or otherwise
released on or to the Mortgaged Property or exist
on or within any portion of the Mortgaged Property
except as described on the Disclosure Schedule. No
prior use, either by Trustor or the prior owners
of the Mortgaged Property, has occurred which
violates any Applicable Environmental Laws. The
use which Trustor makes and intends to make of the
Mortgaged Property will not result in the disposal
or release of any hazardous substance, solid waste
or Hazards on, in or to the Mortgaged Property
except as described on the Disclosure Schedule.
The terms "hazardous substance" and "release"
shall each have the meanings specified in CERCLA,
including, without limitation, petroleum products
and petroleum wastes of any kind, and the terms
"solid waste" and "disposal" (or"disposed") shall
each have the meanings specified in RCRA;
provided, however, that in the event either that
CERCLA or RCRA is amended so as to broaden the
meaning of any term defined thereby, such broader
meaning shall apply subsequent to the effective
date of
13
such amendment; and provided further that, to the
extent that the laws of the State of California
establish a meaning for "hazardous substance,"
"release," "solid waste," or "disposal" which is
broader than that specified in either CERCLA or
RCRA, such broader definition shall apply.
(v) To the best of Trustor's knowledge and
belief, there are no on-site or off-site locations
where hazardous substances generated from the
Mortgaged Property, including such substances as
asbestos and Polychlorinated Biphenyls, solid
wastes, or Hazards, have been stored, treated,
recycled, or disposed of except as described on
the Disclosure Schedule.
(vi) To the best of Trustor's knowledge and
belief, there has been no litigation brought or
threatened nor any settlement reached by or with
any parties alleging the presence, disposal,
release, or threatened release, of any hazardous
substance, solid wastes or Hazards from the use or
operation of the Mortgaged Property.
(vii) To the best of Trustor's knowledge and
belief, the Mortgaged Property is not on any
federal or state "Superfund" list, and not on
EPA's Comprehensive Response, Compensation &
Liability System (CERCLIS) list or on any state
environmental agency list of sites under
consideration for CERCLIS, nor subject to any
environmentally related liens.
(viii) Neither Trustor nor, to the best of
Trustor's knowledge and belief, any tenant of any
portion of the Mortgaged Property, has received
any notice from any Governmental Authority with
respect to any violation of any Applicable Laws.
(ix) Trustor shall not cause any violation of
any Applicable Environmental Laws, or permit any
tenant of any portion of the Mortgaged Property to
cause such a violation, nor permit any
environmental liens to be placed on any portion of
the Mortgaged Property. All of the foregoing
representations and warranties shall be continuing
and shall be true and correct for the period from
the date hereof through and as of the date of the
final payment of all indebtedness owed by Trustor
to Beneficiary and the final performance of all
obligations under all instruments evidencing,
governing, securing or relating to such
indebtedness, with the same force and effect as if
made each day throughout such period, and all of
such representations and warranties shall survive
such payment and performance.
(b) COVENANT TO CLEAN UP AND NOTIFY. Trustor
shall conduct and complete, or cause to be
conducted and completed, all investigations,
studies, sampling, and testing and all remedial,
removal, and other actions necessary to clean up
and remove hazardous substances, solid wastes, or
Hazards on, in, from or affecting any portion of
the Mortgaged Property (a) in accordance with all
Applicable Laws, (b) to the satisfaction of
Beneficiary, and (c) in accordance with the orders
and directives of all Governmental Authorities.
Trustor shall (a) give notice to Beneficiary
immediately upon (i) Trustor's receipt of any
notice from any Governmental Authority of a
violation of any Applicable Laws or acquiring
knowledge of the receipt of any such notice by any
tenant of any portion of the Mortgaged Property
and (ii) acquiring knowledge of the presence of
any hazardous substances, solid wastes or Hazards
(other than those described in the Disclosure
Schedule) on the Mortgaged Property in a condition
that is resulting or could reasonably be expected
to result in any adverse environmental impact,
with a full description thereof; (b) promptly
comply with all Applicable Environmental Laws
requiring the notice, removal, treatment, or
disposal of such hazardous substances, solid
wastes or Hazards and provide Beneficiary with
satisfactory evidence of such compliance; and (c)
provide Beneficiary, within thirty (30) days after
demand by
14
Beneficiary, with a bond, letter of credit, or
similar financial assurance evidencing to
Beneficiary's satisfaction that aufficient funds
are available to pay the cost of removing,
treating, and disposing of such hazardous
substances, solid wastes or Hazards and
discharging any assessments that may be
established on the Mortgaged Property as a result
thereof.
(c) SITE ASSESSMENT. If Beneficiary shall
ever have reason to believe that there are
hazardous substances, solid wastes or Hazards
(other than those described in the Disclosure
Schedule) affecting any of the Mortgaged Property,
Beneficiary (by its officers, employees and
agents) at any time and from time to time, either
prior to or after the occurrence of an Event of
Default,- may contract for the services of persons
(the "Site Reviewers") to perform environmental
site assessments ("Site Assessments") on the
Mortgaged Property for the purpose of determining
whether there exists on the Mortgaged Property any
environmental condition that could result in any
liability, cost, or expense to the owner,
occupier, or operator of such Mortgaged Property
arising under any Applicable Environmental Laws.
The Site Assessments may be performed at any time
or times, upon reasonable notice, and under
reasonable conditions established by Trustor that
do not impede the performance of the Site
Assessments. The Site Reviewers are hereby
authorized to enter upon the Mortgaged Property
for such purposes. The Site Reviewers are further
authorized to perform both above and below the
ground testing for environmental damage or the
presence of hazardous substances, solid wastes and
Hazards on the Mortgaged Property and such other
tests on the Mortgaged Property as may be
necessary to conduct the Site Assessments in the
reasonable opinion of the Site Reviewers. Trustor
will supply to the Site Reviewers such historical
and operational information regarding the
Mortgaged Property as may be reasonably requested
by the Site Reviewers to facilitate the Site
Assessment and will make available for meetings
with the Site Reviewers appropriate personnel
having knowledge of such matters. On request,
Beneficiary shall make the results of such Site
Assessments fully available to Trustor, which
(prior to an Event of Default) may, at its
election, participate under reasonable procedures
in the direction of such Site Assessments and the
description of tasks of the Site Reviewers. The
cost of performing such Site Assessments shall be
paid by Trustor upon demand of Beneficiary.
(d) INDEMNITY AND HOLD HARMLESS. Trustor
hereby defends, indemnifies and holds harmless
Beneficiary, its employees, agents, shareholders,
officers and directors (collectively, the
"Indemnified Parties"), from and against any
claims, demands, obligations, penalties, fines,
suits, liabilities, settlements, damages, losses,
costs or expenses (including, without limitation,
attorney and consultant fees and expenses,
investigation and laboratory fees and expenses,
cleanup costs, and court costs and other
litigation expenses) of whatever kind or nature,
known or unknown, contingent or otherwise, arising
out of or in any way related to (i) the presence,
disposal, release, threatened release, removal or
production of any hazardous substances, solid
wastes or Hazards which are on, in, from or
affecting any portion of the Mortgaged Property;
(ii) any personal injury (including wrongful
death) or property damage (real or personal)
arising out of or related to such hazardous
substances, solid wastes or Hazards; (iii) any
lawsuit brought or threatened, settlement reached,
or order by Governmental Authority relating to
such hazardous substances, solid wastes or
Hazards; and/or (iv) any violation of any
Applicable Laws, or demands of Governmental
Authorities, or violation of any policies or
requirements of Beneficiary, which are based upon
or in any way related to such hazardous
substances, solid wastes or Hazards, regardless of
whether or not any of the conditions described
under any of the foregoing subsections (i) through
(iv!, inclusive, was or is caused by or within the
control of Trustor. Trustor agrees, upon notice
and request by an Indemnified Party, to contest
and defend any demand, claim, suit, proceeding or
action with respect to which Trustor has
hereinabove indemnified and held the Indemnified
Parties harmless and to bear all costs and
expenses of such contest
15
and defense. Trustor further agrees to reimburse
any Indemnified Party upon demand for any costs or
expenses incurred by any Indemnified Party in
connection with any matters with respect to which
Trustor has hereinabove indemnified and held the
Indemnified Parties harmless. The provisions of
this paragraph shall be in addition to any other
obligations and liabilities Trustor may have to
Beneficiary at common law, in equity or under
documentation executed in connection with the
Note, and shall survive the closing, funding and
payment in full of the Note, as well as any
foreclosure or granting of any deed in lieu of
foreclosure and the recordation of any release of
the lien of this Deed of Trust.
(e) BENEFICIARY'S RIGHT TO REMOVE HAZARDOUS
MATERIALS. Beneficiary shall have the right, but
not the obligation, without in any way limiting
Beneficiary's other rights and remedies under the
Mortgage, to enter onto the Mortgaged Property or
to take such other actions as it deems necessary
or advisable to clean up, remove, resolve, or
minimize the impact of, or otherwise deal with,
any hazardous substances, solid wastes or Hazards
on or affecting the Mortgaged Property following
receipt of any notice from any person or entity
asserting the existence of any hazardous
substances, solid wastes or Hazards pertaining to
the Mortgaged Property or any part thereof that,
if true, could result in an order, notice, suit,
imposition of a lien on the Mortgaged Property, or
other action or that, in Beneficiary's sole
opinion, could jeopardize Beneficiary's security
under this Deed of Trust. All reasonable costs and
expenses paid or incurred by Beneficiary in the
exercise of any such rights shall be Indebtedness
secured by this Deed of Trust and shall be payable
by Trustor upon demand.
(f) RELIANCE AND BINDING NATURE. Trustor
acknowledges that Beneficiary has and will rely
upon the representations, covenants, warranties
and agreements set forth in closing and funding
the loan evidenced by the Note and that the
execution and delivery of this Deed of Trust is an
essential condition but for which Beneficiary
would not close or fund the Note. The
representations, covenants, warranties and
agreements herein contained shall be binding upon
Trustor, its successors, assigns and legal
representatives and shall inure to the benefit of
Beneficiary, its successors, assigns and legal
representatives.
ARTICLE V
NEGATIVE
COVENANTS
Trustor hereby covenants and agrees with
Beneficiary that, until the entire Indebtedness
shall have been paid in full and all of the
Obligations which are then subject to performance
and discharge shall have been fully performed and
discharged:
5.1 USE VIOLATIONS: Trustor will not use,
maintain, operate or occupy, or allow the use,
maintenance, operation or occupancy of the
Mortgaged Property in any manner which (a)
violates any Legal Requirement, including, without
limitation, Legal Requirements with respect to the
disposal of medical waste products, (b) may be
dangerous unless safeguarded as required by law,
or (c) constitutes a public or private nuisance.
5.2 ALTERATIONS: Trustor (i) will not commit
or permit any waste of the Mortgaged Property and
(ii) will not (subject to the provisions of
paragraph 4.5 and 4.7 herein), after completion of
the construction of the Improvement as
contemplated by the Loan Agreement, without the
prior written consent of Beneficiary, make or
permit to be
16
made any alterations or additions to the Mortgaged
Property which affect the structural portions of
any Improvements, the exterior side or common
areas of any Improvements, or any areas visible
from the exterior or common areas of the
Improvements.
5.3 REPLACEMENT OF FIXTURES AND PERSONALTY:
Trustor will not, without the prior written
consent of Beneficiary, permit any of the Fixtures
or Personalty to be removed at any time from the
Land or Improvements unless the removed item is
removed temporarily for maintenance and repair or,
if removed permanently, is replaced by a new
article of equal suitability and value, owned by
Trustor, free and clear of any lien or security
interest except such as may be first approved in
writing by Beneficiary. The foregoing shall not
limit the right of tenants under Leases to install
removable fixtures subject to security interests
on the Mortgaged Property which can be removed
without darnage to the Mortgaged Property and
which pursuant to the Leases and the written
consent of Trustor obtained prior to installation
shall remain the property of such tenants and
shall not be considered part of the Mortgaged
Property.
5.4 ZONING: TITLE MATTERS: Trustor will not,
without Beneficiary's express prior written
consent, (A) initiate or support any zoning
reclassification of the Mortgaged Property or seek
any variance under existing zoning ordinances
applicable thereto; (B) modify, amend or
supplement any Permitted Encumbrances; (C) impose
any restrictive covenants or any other encumbrance
upon the Mortgaged Property,
execute or file any subdivision plat affecting the
Mortgaged Property or consent to the annexation of
the Mortgaged Property to any municipality; or (D)
permit or offer the Mortgaged Property to be used
by the public or any person in such manner as
might make possible a claim of adverse usage or
possession or of any implied dedication or
easement by prescription.
5.5 NO FURTHER ENCUMBRANCES. Trustor will
not, without the prior written consent of
Beneficiary, crate, place, suffer or permit to be
created or placed or, through any act or failure
to act, acquiesce in the placing of or allow to
remain, any mortgage, pledge, lien (statutory,
constitutional or contractual), security interest,
encumbrance or charge on, or conditional sale or
other title retention agreement, regardless of
whether same are expressly subordinate to the
lines of the Security Documents, with respect to
the Mortgaged Property, other (i) than the
Permitted Encumbrances, (ii) the Emeritus Deed of
Trust and (iii) leases or financing agreements for
furniture, fixtures, equipment and other personal
property used on the Mortgaged Property provided
that (A) the amount of all such financing does not
exceed $250,000 outstanding at any one time, and
(B) Trustor has first offered to permit
Beneficiary to enter into any such lease or
financing agreement on the same terms and
conditions offered by a third party lender and
Beneficiary has refused such offer.
ARTICLE VI
EVENTS
OF DEFAULT
6.1 DEFAULT. Any "Event of Default" as
described in the Loan Agreement or under any of
the other Security Documents shall constitute an
"EVENT OF DEFAULT" hereunder and under the
Security Documents.
17
ARTICLE VII
DEFAULT AND FORECLOSURE
7.1 REMEDIES: Upon the occurrence of an Event
of Default, Beneficiary may at any time, at its
option and in its sole discretion, declare the
entire Indebtedness to be due and payable and the
same shall thereupon become immediately due and
payable, including the Prepayment Fee payable
under the terms of the Note. Beneficiary may also
do any or all of the following although it shall
have no obligation to do any of the following:
(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 Beneficiary's security, enter
upon and take possession of the Mortgaged
Property, or any part thereof, and do any acts
which Beneficiary deems necessary or desirable to
preserve the value, marketability or rentability
of the Mortgaged Property, or to increase the
income therefrom or to protect the security hereof
and, with or without taking possession of any of
the Mortgaged Property, xxx for or otherwise
collect all rents and profits, and expenses of
operation and collection, including attorney's
fees and expenses, upon the Indebtedness, all in
such order as Beneficiary may determine. The
collection of rents and profits and the
application thereof shall not cure or waive any
Event of Default or notice thereof or invalidate
any act done in response thereto or pursuant to
such notice.
(b) Bring an action in any court of competent
jurisdiction to foreclose this Deed of Trust or to
enforce any of the covenants hereof.
(c) Exercise any or all of the remedies
available to a secured party under the UCC,
including, but not limited to:
(1) either personally or by means of a court
appointed receiver, take possession of all or any
of the Collateral and exclude therefrom Trustor
and all others claiming under Trustor and
thereafter hold, store, use, operate, manage,
maintain and control, make repairs, replacements,
alterations, additions and improvements to and
exercise all rights and powers of Trustor in
respect to the Collateral; and in the event
Beneficiary demands or attempts to take possession
of the Collateral in the exercise of any of its
rights hereunder, Trustor promises and agrees
promptly to turn over and deliver complete
possession thereof to Beneficiary;
(2) without notice to or demand upon Trustor,
make such payments and do such acts as Beneficiary
may deem necessary to protect its security
interest in the Collateral, including, without
limitation, paying, purchasing, contesting or
compromising any encumbrance, charge or lien which
is prior or superior to the security interest
granted hereunder, and in exercising any such
powers or authority, to pay all expenses incurred
in connection therewith;
(3) require Trustor to assemble the
Collateral on the Land and promptly to deliver
such Collateral to Beneficiary or an agent or
representative designated by it. Beneficiary, its
agents and representatives, shall have the right
to enter upon any or all of the Trustor's premises
and property to exercise the Beneficiary's rights
hereunder; and
18
(4) sell, lease or otherwise dispose of the
Collateral at public sale, with or without having
the Collateral at the place of sale, and upon such
terms and in such manner as Beneficiary may
determine; and Beneficiary may be a purchaser at
any such sale. Beneficiary shall not be deemed to
have accepted any property other than cash in
satisfaction of the Indebtedness or any portion
thereof unless Beneficiary shall make an express
written election of said remedy under UCC 9505
or other applicable law.
(d) Elect to sell by power of sale the
portion of the Mortgaged Property which is real
property and such portion of the Mortgaged
Property which is personal property or fixtures
which Beneficiary shall elect to include in such
sale, and upon such election, such notice of Event
of Default and election to sell shall be given as
may then be required by law. Thereafter, upon the
expiration of such time and the giving of such
notice of sale as may then be required by law, at
the time and place specified in the notice of
sale, Trustee shall sell such property, or any
portion thereof specified by Beneficiary, at
public auction to the highest bidder for cash in
lawful money of the United States. Trustee may,
and upon request of Beneficiary shall, from time
to time, postpone the sale by public announcement
thereof at the time and place noticed therefor. If
the Mortgaged Property consists of several lots,
parcels or interests, Beneficiary may designate
the order in which the same shall be offered for
sale or sold. Trustor waives all rights to direct
the order in which any of the Mortgaged Property
will be sold in the event of any sale under this
Deed of Trust, and also of any right to have any
of the Mortgaged Property marshalled upon any
sale. In the case of a sale under this Deed of
Trust, the said property, real, personal and
mixed, may be sold in one parcel or more than one
parcel. Should Beneficiary desire that more than
one such sale or other disposition be conducted,
Beneficiary may, at its option, cause the same to
be conducted simultaneously, or successively on
the same day, or at such different days or times
and in such order as Beneficiary may deem to be in
its best interest. Any person, including Trustor,
Trustee or Beneficiary, may purchase at the sale.
Upon any sale, Trustee shall execute and deliver
to the purchaser or purchasers a deed or deeds
conveying the property so sold, but without any
covenant or warranty whatsoever, express or
implied, whereupon such purchaser or purchasers
shall be let into immediate possession.
Beneficiary, from time to time before the
trustee's sale pursuant to this section, may
rescind any notice of breach or default and of
election to cause to be sold the Mortgaged
Property by executing and delivering to Trustee a
written notice of such rescission, which notice,
shall also constitute a cancellation of any prior
declaration of default and demand for sale. The
exercise by Beneficiary of such right of
rescission shall not constitute a waiver of any
breach or default then existing or subsequently
occurring or impair the right of Beneficiary to
execute and deliver to Trustee, as above provided,
other declarations of default and demands for
sale, and notices of breach or default of the
obligations hereof, nor otherwise affect any
provision, covenant or condition of the Note
and/or of this Deed of Trust or any of the rights,
obligations or remedies of the parties thereunder
or hereunder.
(e) Exercise each of its other rights and
remedies under this Deed of Trust and each of the
other Security Documents.
(f) Except as otherwise required by law,
apply the proceeds of any foreclosure or
disposition hereunder to payment of the following:
(i) the expenses of such foreclosure or
disposition, (ii) the cost of any search or other
evidence of title procured in connection therewith
and revenue stamps on any deed or conveyance,
(iii) all sums expended under the terms hereof,
not then repaid, with accrued interest in the
amount provided herein, (iv) all other sums
secured hereby and (v) the remainder, if any, to
the person or persons legally entitled thereto.
19
(g) Upon any sale or sales made under or by
virtue of this Paragraph, whether made under the
power of sale or by virtue of judicial proceedings
or of a judgment or decree of foreclosure and
sale, Beneficiary may bid for and acquire the
Mortgaged Property or any part thereof. In lieu of
paying cash for the Mortgaged Property,
Beneficiary may make settlement for the purchase
price by crediting against the Indebtedness the
sale price of the Mortgaged Property, as adjusted
for the expenses of sale and the costs of the
action and any other sums for which Trustor is
obligated to reimburse Trustee or Beneficiary
under this Deed of Trust.
(h) In the event that Trustor has an equity
of redemption and the Mortgaged Property is sold
pursuant to the power of sale or otherwise under
or by virtue of this Paragraph, the purchaser may,
during any redemption period allowed, make such
repairs or alterations on said property as may be
reasonably necessary for the proper operation,
care, preservation, protection and insuring
thereof. Any sums so paid together with interest
thereon from the time of such expenditures at the
Default Rate provided in the Loan Agreement shall
be added to and become a part of the amount
required to be paid for redemption from such saie.
7.2 WAIVERS: To the fullest extent permitted
by law, Trustor hereby waives the benefit of all
laws now existing or hereafter enacted providing
for the pleading of any statute of limitation as a
defense to any of the Indebtedness or the
Obligations or extending the time for the
enforcement of the collection of any of the
Indebtedness or the performance of the
Obligations; and Trustor agrees that Trustor shall
not at any time insist upon, plead, claim or take
the benefit or advantage of any law now or
hereafter in force providing for any stay of
execution, extension or marshalling in the event
of foreclosure of the liens and security interests
hereby created. In addition, Trustor expressly
waives and relinquishes any and all rights and
remedies which Trustor may have or be able to
assert by reason of any laws pertaining to the
rights and remedies of sureties or any law
pertaining to the marshalling of assets, the
administration of estates of decedents and any
exemption from execution or sale of the Mortgaged
Property or any part thereof. Further, Trustor
shall not at any time claim, take or insist upon
any benefit or advantage now or hereafter in force
providing for the valuation or appraisal of the
Mortgaged Property, or any part thereof, prior to
any sale or sales thereof, nor after any such sale
or sales, claim or exercise any right under any
statute to redeem the property so sold or any
property thereof.
7.3 PREPAYMENT: If Beneficiary shall
accelerate the Indebtedness following the
occurrence of an Event of Default, any payments
received by Beneficiary following such
acceleration (including voluntary payments made by
Trustor and payments received by Beneficiary as a
result of the sale of the Mortgaged Property at
foreclosure) shall be deemed voluntary prepayments
of the Note and accordingly, the Prepayment Fee
required under the Note shall also be payable by
Trustor; provided, however, that the obligation of
Trustor to pay any such Prepayment Fee is
expressly subject to Paragraph 1 1.10 of this Deed
of Trust.
ARTICLE VIII
CONDEMNATION
8.1 APPLICATION OF PROCEEDS: If the Mortgaged
Property or any part thereof, shall be condemned
or otherwise taken for public or quasi-public use
under the power of eminent domain, or be
transferred in lieu thereof, all damages or other
amounts awarded Trustor for the taking, or injury
to, the Mortgaged Property (the "Award") shall be
paid to Beneficiary to be applied towards the
Indebtedness. To enforce its rights hereunder,
Beneficiary shall be entitled to participate in
and control any
20
condemnation proceedings and to be represented
therein by counsel of its own choice, and Trustor
will deliver, or cause to be delivered, to
Beneficiary such instruments as may be requested
by it from time to time to permit such
participation. In the event Beneficiary, as a
result of any such judgment, decree or award,
believes that the payment or performance of any
obligation secured by this Deed of Trust is
impaired, Beneficiary may declare all of the
Indebtedness secured hereby immediately due and
payable.
In case of a taking during the "Permanent
Term" (as defined in the Loan Agreement) in which
the cost of the restoration, repair or replacement
(hereinafter referred to as the "Restoration") of
the Mortgaged Property reasonably estimated by
Beneficiary shall not exceed the proceeds paid to
Beneficiary then such Award may be used for the
prosecution of the Restoration in the manner
hereinafter provided. If the cost of the
Restoration reasonably estimated by geneficiarv
shall exceed the Award, then unless Trustor
deposits with Beneficiary or causes to be
deposited with Beneficiary the difference between
the estimated cost of the Restoration and the
amount of the Award within ninety (90) days after
written demand therefor, Beneficiary, at its
option, shall be entitled to receive and retain
the Award, applying the same upon the
Indebtedness. Notwithstanding anything herein to
the contrary, if any Award is made (i) within one
(1) year prior to the original stated maturity
date of the Note, unless said maturity date has
been extended by Trustor by giving notice in
accordance with the Note or is extended by Trustor
in accordance with the Note within thirty (30)
days after said taking, (ii) within one ( 1 ) year
prior to the extended maturity date of the Note,
if Trustor has extended such maturity date in
accordance with the Note, or (iii) at any time
when there shall exist an Event of Default
hereunder, Beneficiary shall be entitled to
receive and retain the Award and apply same upon
the Indebtedness. In the event Beneficiary elects
to make such Award available to Trustor for such
purpose, Trustor will promptly or will promptly
cause and at the sole cost and expense of Trustor
and regardless of whether the Award (if any) shall
be aufficient for the purpose, commence and
continue diligently to completion to restore,
repair, replace and rebuild the Mortgaged Property
as nearly as possible to its value, condition and
character immediately prior to such taking subject
to the conditions and restrictions applicable to
Trustor's use of insurance proceeds contained in
the second paragraph of Section 4.7 above. Trustor
hereby irrevocably and unconditionally waives all
rights of a property owner under the provisions of
CaliforniavCode of Civil Procedure Section
1265.225(a), or any successor statute, providing
for the allocation of condemnation proceeds
between a property owner and a lienholder.
ARTICLE
IX
SECURITY AGREEMENT
9.1 Security Agreement and Fixture Filing:
(a) Insofar as (i) any of the Mortgaged
Property and, (ii) all other Personal Mortgaged
Property either referred to or described in this
Deed of Trust, or in any way connected with the
use or enjoyment of the Mortgaged Property
(hereinafter collectively referred to as
'Collateral"), this Deed of Trust, in compliance
with the provisions of Article 9 of the UCC, as it
may be amended from time to time, is hereby made
and declared to be a security agreement,
encumbering the Collateral. Trustor does hereby
grant to Beneficiary a continuing lien and
security interest in and to all of said Collateral
and all replacements, substitutions, additions and
proceeds thereof and all after-acquired property
relating thereto. A financing statement or
statements affecting all of the Collateral
aforementioned, shall be executed by Trustor and
appropriately filed. Trustor covenants and agrees
that, prior to changing its name, identity or
structure, it will so notify Beneficiary and will
promptly execute any financing statements or other
instruments deemed necessary by Beneficiary to
prevent any filed financing statement
21
from becoming seriously misleading or losing its
perfected status, and, failing to do so,
authorizes Beneficiary to file such financing
statements and irrevocably constitutes and
appoints Beneficiary, or any officer of
Beneficiary, as its true and lawful
attorney-in-fact to execute the same on behalf of
Trustor. The remedies for any violation of the
covenants, terms and conditions of the security
agreement herein contained shall be (i) as
prescribed herein, (ii) as prescribed by general
law, or (iii) as prescribed by the specific
statutory consequences now or hereafter enacted
and specified in the UCC, all at Beneficiary's
sole election. Trustor and Beneficiary agree that
the filing of such financing statement(s) in the
records normally having to do with personal
property shall never be construed in anywise
derogating from or impairing this declaration and
hereby stated intention of Trustor and Beneficiary
that everything used in connection with the
production of income from the Mortgaged Property,
adapted for use therein, and/or which is described
in this Deed of Trust, is, and at all times and
for all purposes and in all proceedings both legal
or equitable shall be, regarded as part of the
real estate irrespective of whether (a) any such
item is physically attached to the improvements,
(btserial numbers are used for the better
identification of certain items capable of being
thus identified in a recital contained herein, or
(c) any such item is referred to or reflected in
any such financing statement(s) so filed at any
time. Similarly, the mention in any such financing
statement(s) of the rights in and to (act) the
proceeds of any insurance policy relating to the
Mortgaged Property, or (bb) any award in eminent
domain proceedings for a taking or for loss of
value, or (cc) Trustor's interest as lessor in any
present or future Lease, sublease, or rights to
income growing out of the use and/or occupancy of
the Mortgaged Property, or any business or other
activity conducted thereon, whether pursuant to
Lease, sublease, or otherwise, shall never be
construed as in anywise altering any of the rights
of Beneficiary as determined by this Deed of Trust
or impugning the priority of Beneficiary's lien
granted hereby or by any other recorded documents,
but such mention in .such financinP statement(s)
is declared to be for the protection of
Beneficiary in the event any court shall at any
time hold with respect to the foregoing (aa), (bb)
or (cc), that notice of Beneficiary's priority of
interest to be effective against a particular
class of persons, must be filed in the UCC
records. The information contained herein is
provided in order that this Deed of Trust shall
comply with the requirements of the UCC for
instruments to be filed as financing statements or
fixture filings. For such purposes, the "Debtor"
is Trustor; the "Secured Party" is Beneficiary,
the principal place of business of the "Debtor" is
set forth on Page 1 of this Deed of Trust, the
mailing addresses of the "Debtor" and "Secured
Party" are as set forth on Page 1. of this Deed of
Trust and the types or items of collateral are as
described hereinabove in this Paragraph.
(b) This Deed of Trust constitutes a
financing statement filed as a fixture filing
under UCC Section 9402(6) in the official records
of the county in which the Mortgaged Property is
located with respect to any and all fixtures
included within the term "Mortgaged Property" and
with respect to any goods or other personal
property that may now be or hereafter become such
a fixture. PARTS OF THE COLLATERAL ARE, OR ARE TO
BECOME, FIXIXURES ON THE MORTGAGED PROPERTY.
(c) Beneficiary has no responsibility for,
and does not assume any of, Trustor's obligations
or duties under any agreement or obligation which
is part of the Collateral or any obligation
relating to the acquisition, preparation, custody,
use, enforcement or operation of any of the
Mortgaged Property.
(d) It is understood and agreed that, in
order to protect Beneficiary from the effect of
UCC Section 9313, as amended from time to time, in
the event that (A) Trustor intends to purchase any
goods which may become fixtures to the Mortgaged
Property, or any part thereof, and (B) such goods
will be subject to a security interest held by a
seller or any other party, Trustor shall, before
executing any security agreement or other
22
document evidencing such security interest, obtain
the prior written approval of Beneficiary, and all
requests for such written approval shall be in
writing and contain the following information:
(1) A description of the Collateral to be
replaced, added to, installed or substituted;
(2) The address at which the Collateral will
be replaced, added to, installed or substituted;
and
(3) The name and address of the proposed
holder and proposed amount of the security
interest; and any failure of Trustor to obtain
such approval shall be a material breach of
Trustor's covenants under this Deed of Trust, and
shall, at the option of Beneficiary, entitle
Beneficiary to all rights and remedies provided
for herein upon an Event of Default. No consent by
Beneficiary pursuant to this section shall be
deemed to constitute an agreement to subordinate
any right of Beneficiary in fixtures or other
property covered by this Deed of Trust.
(e) Beneficiary shall have the right to
acquire by assignment from the holder of such
security interest any and all contract rights,
accounts receivable, negotiable or non-negotiable
instruments or other evidence of Trustor's
indebtedness for such Collateral and, upon
acquiring such interest by assignment, shall have
the right to enforce the security interest as
assignee thereof, in accordance with the terms and
provisions of the UCC then in effect and in
accordance with any other provisions of law.
(f) Beneficiary is aware that Borrower has
only a limited right to use the name "NorthBay."
ARTICLE X
CONCERNING THE
TRUSTEE
10.1 NO LIABILITY: Trustee shall not be
personally liable in case of entry by him or
anyone acting by virtue of the powers herein
granted him upon the Mortgaged Property for debts
contracted or liability or damages incurred in the
management or operation of the Mortgaged Property.
Trustee shall have the right to rely on any
instrument, document or signature authorizing or
supporting any action taken or proposed to be
taken by him hereunder or believed by him in good
faith to be genuine. Trustee shall be entitled to
reimbursement for expenses incurred by him in the
performance of his duties hereunder.
10.2 RETENTION OF MONIES: All monies received
by Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for
which they were received, but need not be
segregated in any manner from any other monies
(except to the extent required by law), and
Trustee shall be under no liability for interest
on any monies received by him hereunder.
10.3 ACTIONS OF TRUSTEE: At any time upon
written request of Beneficiary, payment of its
fees and presentation of this Deed of Trust and
the Note tor endorsement (in case of full
reconveyance, for cancellation and retention)
without
affecting the liability of any person for the
payment of the Indebtedness, Trustee may (a)
consent to the making of any map or plat of the
Mortgaged Property, (b) join in granting any
easement or creating any restriction thereon, (c)
join in any subordination or other agreement
affecting this Deed of Trust or the lien or charge
thereof, and (d) reconvey,
23
without warranty, all or any part of the Mortgaged
Property. The grantee in any reconveyance may be
described as the "person or persons legally
entitled thereto," and the recitals therein of any
matters of facts shall be conclusive proof of the
truthfulness thereof. Trustor agrees to pay a
reasonable Trustee's fee for full or partial
reconveyance, together with a recording fee if
Trustee, at its option, elects to record said
reconveyance.
10.4 SUBSTITUTE TRUSTEE: Beneficiary may
substitute Trustee hereunder in any manner now or
hereafter provided by law or, in lieu thereof,
Beneficiary may from time to time, by an
instrument in writing, substitute a successor or
successors to any Trustee named herein or acting
hereunder, which instrument, executed and
acknowledged by Beneficiary and recorded in the
office of the recorder of the county or counties
in which the Land and Improvements are situated,
shall be conclusive proof of proper substitution
of such successor Trustee, who shall thereupon and
without conveyance from the predecessor Trustee,
succeed to all its title, estate, rights, powers
and duties.
10.5 SUCCESSION INSTRUMENTS: Any new Trustee
appointed pursuant to any of the provisions hereof
shall, without any further act, deed or
conveyance, become vested with all the estates,
properties, rights, powers and trusts of its or
his predecessor in the rights hereunder with like
effect as if originally named as Trustee herein;
but, nevertheless, upon the written request of
Beneficiary or his successor trustee, Trustee
ceasing to act shall execute and deliver an
instrument transferring to such successor trustee,
upon the trust herein expressed, all the estates,
properties, rights, powers and trusts of Trustee
so ceasing to act, and shall duly assign, transfer
and deliver any of the property and monies held by
Trustee to the successor trustee so appointed in
its or his place.
10.6 PERFORMANCE OF DUTIES BY AGENTS: Trustee
may authorize one or more parties to act on his
behalf to perform the ministerial functions
required of him hereunder, including, without
limitation, the transmittal and posting of any
notices.
ARTICLE XI
MISCELLANEOUS
11.1 SURVIVAL OF OBLIGATIONS: Each and all of
the Obligations shall
survive the execution and delivery of the Security
Documents and
the consummation of the loan called for therein
and shall continue in full force and effect until
the Indebtedness shall have been paid in full.
11.2 FURTHER ASSURANCES: Trustor, upon the
request of Trustee or Beneficiary, will execute,
acknowledge, deliver and record and/or file such
further instruments and do such further acts as
may reasonably be necessary, desirable or proper
to carry out more effectively the purposes of the
Security Documents, to subject to the liens and
security interests thereof any property intended
by the terms thereof to be covered thereby,
including, specifically, without limitation, any
renewals, additions, substitutions, replacements
or appurtenances to the Mortgaged Property, and to
complete, execute, record and file any document or
instrument necessary to place third parties on
notice of the liens and security interests granted
under the Security Documents. Trustor hereby
irrevocably appoints Trustee and Beneficiary as
its agents to execute and deliver all such
instruments and additionally to record and file
any of the same as may be necessary.
24
11.3 RECORDING AND FILING: Trustor will cause
the Security Documents and all amendments and
supplements thereto and substitutions therefor to
be recorded, filed, re-recorded and refiled in
such manner and in such places as Trustee or
Beneficiary shall reasonably request and will pay
all such recording, filing, re-recording and
refiling taxes, fees and other charges.
11.4 NOTICES: Any notice, request or other
communication required or permitted to be given
hereunder may be given and shall conclusively be
deemed and considered to have been given and
received upon the deposit thereof, in writing, in
the U.S. Mails, certified mail, return receipt
requested, postage prepaid, and addressed to the
party to receive such notice at the address set
forth below or such address elected in writing by
the party to receive such notice; but actual
notice however given or received, shall always be
effective. The last preceding sentence shall not
be construed in anywise to effect or impair the
waiver of notice or demand to or upon Trustor in
any situation or for any reason (except as
otherwise specifically provided).
If to Trustor: Fairfield Retirement Center,
LLC
c/o NorthBay Health
Advantage
0000 X. Xxxx Xxxxxx
Xxxxxxxxx
Xxxxxxxxx,Xxxxxxxxxx 00000
With Copy to: Emeritus
Corporation
0000
Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxxxx 00000
BW
(Fairfield) Real Estate Corporation
0000
Xxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxxxx 00000
Xxxxx
Xxxxxxxxx
The
Xxxxxxxxx Group
0000
Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxxxx 00000
If to Beneficiary: FINOVA Capital
Corporation
0000 Xxxx
Xxxxxx Xxxxx, Xxxxx Xxxxx
Xxxxx
Xxxx, Xxxxxxxxxx 00000
with copy to: FINOVA Capital
Corporation
0000 Xxxx Xxxxxx Xxxxxx
Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx
00000
Attn.: Vice President -
Group Counsel
11.5 NO WAIVER: Any failure by Trustee or
Beneficiary to insist, or
any election by Trustee or Beneficiary not to
insist, upon strict performance by Trustor of any
of the terms, provisions or conditions of the
Security Documents shall not be deemed to be a
waiver of the same or of any other term, provision
or condition thereof, and Trustee or Beneficiary
shall have the right at any time or times
thereafter to insist upon strict performance by
Trustor of any and all of such terms, provisions
and conditions.
11.6 BENEFICIARY'S RIGHT TO PAY INDEBTEDNESS
AND PAY OBLIGATIONS: If Trustor shall default
under any of the Security Documents, then at any
time thereafter and without further notice to or
demand upon Trustor or any other party, without
waiving or releasing any other right, remedy or
recourse Beneficiary may have because of the same,
Beneficiary may (but shall not be obligated to)
make such
25
payment or perform such act for the account of and
at the expense of Trustor and shall have the right
to enter upon the Mortgaged Property for such
purpose and to take all such action thereon with
respect to the Mortgaged Property as it may deem
necessary or appropriate. Trustor shall be
obligated to repay Beneficiary for all sums
advanced by it pursuant to this Paragraph 11.6 and
shall indemnify and hold Beneficiary harmless from
and against any and all loss, cost, expense,
liability, damage and claims and causes of action,
including reasonable attorney's fees, incurred or
accruing by any acts performed by Beneficiary
pursuant to the provisions of this Paraaraph 11.6
or by reason of any other provision of the
Security Documents. All sums paid by Beneficiary
pursuant to this Paragraph 11.6 and all other sums
expended by Beneficiary to which it shall be
entitled to be indemnified, together with interest
thereon at the "Default Rate" as defined in the
Loan Agreement from the date of such payment or
expenditure, shall constitute additions to the
Indebtedness and Obligations, shall be secured by
the Security Documents and shall be paid by
Trustor to Beneficiary upon demand.
11.7 COVENANTS RUNNING WITH THE LAND: All
obligations contained in the Security Documents
are intended by the parties to be and shall be
construed as covenants running with the Mortgaged
Property.
11.8 SUCCESSORS AND ASSIGNS: All of the terms
of the Security Documents shall apply to, be
binding upon and inure to the benefit of the
parties thereto, their respective successors,
assigns, heirs and legal representatives and all
other persons claiming by, through or under them.
11.9 SEVERABILITY: The Security Documents are
intended to be performed in accordance with, and
only to the extent permitted by, all applicable
Legal Requirements. If any provision of any of the
Security Documents or the application thereof to
any person or circumstance shall, for any reason
and to any extent, be invalid or unenforceable,
neither the remainder of the instrument in which
such provision is contained nor the application of
such provision to other persons or circumstances
or other instruments referred to hereinabove shall
be affected thereby, but rather the same shall be
enforced to the greatest extent permitted by law.
11.10 USURY: It is the intention of Trustor
and Beneficiary to comply with the applicable law
governing the rate of interest or maximum amount
of interest payable on or in connection with the
Note and the loan transaction evidenced thereby,
therefore (i) in the event that the Indebtedness
is prepaid or the maturity of the Indebtedness and
Obligations is accelerated by reason of an
election by Beneficiary, unearned interest shall
be canceled and, if theretofore paid, shall either
be refunded to Trustor or credited on the
Indebtedness, as Beneficiary may elect; (ii) the
aggregate of all interest and other charges
constituting interest under applicable laws and
contracted for, chargeable or receivable under the
Note, the Tndebtedness (if unpaid), the other
Security Documents or otherwise in connection with
the loan transaction contemplated thereby shall
never exceed the maximum amount of interest, nor
produce a rate in excess of the maximum contract
rate of interest that Beneficiary is authorized to
charge Trustor under applicable law; and (iii) if
any excess interest is provided for, it shall be
deemed a mistake, and the same shall, at the
option of Beneficiary, either be refunded to
Trustor or credited on the unpaid principal amount
(if any), and the Indebtedness shall be
automatically reformed as to permit only the
collection of the maximum legal contract rate.
11.11 ENTIRE AGREEMENT AND MODIFICATION: The
Security Documents contain the entire agreements
between the parties relating to the subject matter
hereof and thereof, and all prior agreements
relative thereto which are not contained herein or
therein are terminated. The Security Documents may
be amended,
26
revised, waived, discharged, released or
terminated only by a written instrument or
instruments executed by the party against which
enforcement of the amendment, revision, waiver,
discharge, release or termination is asserted. Any
alleged amendment, revision, waiver, discharge,
release or termination which is not so documented
shall not be effective as to any party.
11.12 COUNTERPARTS: This Deed of Trust may be
executed in any number of counterparts, each of
which shall be an original, but all of which
together shall constitute but one instrument.
11.13 UNIFORM COMMERCIAL CODE: All terms used
herein which are defined in the UCC shall be used
with the definition therefor in said Code.
11. 1 4 IMPOSITIONS AND INSURANCE ESCROW: To
implement the provisions of Paragraphs 4.4 and 4.6
hereof, upon the occurrence of an Event of
Default, Trustor, at Beneficiary's request, shall
pay to Beneficiary in advance, as and when
directed by Beneficiary and as escrowed sums, an
amount equal to the sums of: (a) the annual
Impositions (estimated wherever necessary) to
become due for the tax year during which such
payment is so directed; and (b) the insurance
premiums for the same year for those insurance
policies as are required hereunder. If Beneficiary
determines that any amounts theretofore paid by
Trustor are insufficient for the payment in full
of such Impositions and insurance premiums,
Beneficiary shall notify Trustor of the increased
amounts required to provide a aufficient fund,
whereupon Trustor shall pay to Beneficiary within
thirty (30) days thereafter the additional amount
so stated in Beneficiary's notice. The escrowed
sums may be held by Beneficiary in non-interest
bearing accounts and may be commingled with
Beneficiary's other funds. Upon assignment of this
Deed of Trust, Beneficiary shall have the right to
pay over the balance of the escrowed sums then in
its possession to its assignee, whereupon
Beneficiary and its Trustee shall then become
completely released from all liability with
respect thereto. Upon payment of the Indebtedness
and Obligations, or at such earlier time that
Beneficiary may elect, the balance of the escrowed
sums in its possession may be paid over to
Trustor, and no other party shall have any right
or claim thereto. If no Event of Default shall
have occurred or be continuing hereunder, the
escrowed sums may, at the option of Beneficiary,
be repaid to Trustor in aufficient time to allow
Trustor to satisfy Trustor's obligations under the
Security Documents to pay the Impositions and the
required insurance premiums or may be paid by
Beneficiary directly to the Governmental Authority
and the insurance company entitled thereto. If an
Event of Default shall have occurred or be
continuing hereunder, however, Beneficiary shall
have the additional option of crediting the full
amount of the escrowed sums against the
Indebtedness. Notwithstanding anything to the
contrary contained in this Paragraph 11.14 or
elsewhere in this Deed of Trust, Beneficiary
hereby reserves the right to waive the payment by
Trustor to Beneficiary of the escrowed sums and,
in the event Beneficiary does so waive such
payment, it shall be without prejudice to
Beneficiary's right to insist, at any subsequent
time or times, that such payments be made in
accordance herewith.
11.15 HEADINGS AND GENERAL APPLICATION: The
article, paragraph and subparagraph entitlements
hereof are inserted for convenience or reference
only and shall in no way affect, modify or define,
or be used in construing, the text of such
article, paragraph or subparagraph. If the context
requires, words used in the singular shall be read
as including the plural, and pronouns of any
gender shall include all genders.
11.16 SOLE BENEFIT: This instrument and the
other Security Documents have been executed for
the sole benefit of Trustor and Beneficiary and
the heirs, successors, assigns and legal
representatives of Beneficiary. No other party
shall have rights
27
thereunder nor be entitled to assume that the
parties thereto will insist upon strict
performance of their mutual obligations hereunder,
any of which may be waived from time to time.
Trustor shall have no right to assign any of their
rights under the Security Documents to any party
whatsoever, including the right to receive
advances under the Note or otherwise.
11.17 SUBROGATION: If any or all of the
proceeds of the Indebtedness or the Obligations
have been used to extinguish, extend or renew any
indebtedness heretofore existing against the
Mortgaged Property or to satisfy any indebtedness
or obligation secured by a lien or encumbrance of
any kind (including liens securing the payment of
any Impositions), such proceeds have been advanced
by Beneficiary at Trustor's request, and, to the
extent of such funds so used, the Indebtedness and
Obligations in this Deed of Trust shall be
subrogated to and extend to all of the rights,
claims, liens, titles and interests heretofore
existing against the Mortgaged Property to secure
the indebtedness or obligation so extinguished,
paid, extended or renewed, and the former rights,
claims, liens, title and interest, if any, shall
not be waived, but rather shall be continued in
full force and effect and in favor of Beneficiary
and shall be merged with the lien and security for
the repayment of the Indebtedness and satisfaction
of the Obligations; but, in no event shall the
foregoing provision result in Beneficiary
recovering more than the full amount of the
Indebtedness.
11.18 BUSINESS OR COMMERCIAL PURPOSE: Trustor
warrants that the extension of credit evidenced by
the Note secured hereby is solely for business or
commercial purposes, other than agricultural
purposes. Trustor further warrants that the credit
transaction evidenced by the Note is specifically
exempted under Regulation Z issued by the Board of
Governors of the Federal Reserve System and Title
I (Consumer Credit Cost Disclosure) of the
Consumer Credit Protection Act and that no
disclosures are required to be given under such
regulations and federal laws in connection with
the above transaction.
11.19 STATEMENT OF CONDITION: Beneficiary
shall furnish any statement required by law
regarding the Indebtedness and the Obligations
secured hereby or regarding the amounts held in
any trust or reserve fund hereunder. For any such
statement, Beneficiary may charge a reasonable
fee, not to exceed the maximum amount permitted by
law at the time of the request therefor.
11.20 NO OFFSET: Under no circumstances shall
Trustor fail or delay to perform (or resist the
enforcement of) any of its obligations in
connection with any of the Security Documents
because of any alleged offsetting claim or cause
of action against Beneficiary (or any indebtedness
or obligation of Beneficiary) which has not been
confirmed in a final judgment of a court of
competent jurisdiction (sustained on appeal, if
any) against Beneficiary, and Trustor hereby
waives any such rights of setoff (or offset) which
it might otherwise have with respect to any such
claims or causes of action against Beneficiary (or
any such obligations or indebtedness of
Beneficiary), unless and until such right of
setoff is confirmed and liquidated by such final
judgment.
1 1.21 NO PARTNERSHIP OR JOINT VENTURE:
Nothing contained herein or in the Note or any
Security Documents, nor the acts or omissions of
the parties hereto, shall be construed to create a
partnership or joint venture between Trustor and
Beneficiary. The relationship between Trustor and
Beneficiary is the relationship of "debtor" and
"creditor." Trustor shall indemnify and hold
Beneficiary harmless from and against any and all
suits, actions, claims, proceedings (including
third party proceedings), damages, losses,
liabilities and expenses (including, without
limitation, reasonable attorneys' fees) which may
be incurred by or asserted against Beneficiary
with respect to
28
any claim or assertion which, if true, would be
inconsistent with or contradict the statements
made in the preceding two sentences. The
provisions of this Paragraph 11.21 shall survive
the repayment of the Indebtedness.
11.22 WAIVER OF JURY TRIAL: FOR AND IN
CONSIDERATION OF BENEFICIARY'S ADVANCEMENT TO
TRUSTOR OF THE PRINCIPAL SUMS IN THE AMOUNT OF UP
TO TWELVE MILLION EIGHT HUNDRED THOUSAND AND
NO/100 DOLLARS ($12,800,000.00), TRUSTOR, BEING AN
EXPERIENCED OWNER AND OPERATOR OF REAL ESTATE AND
PARTICIPANT IN SOPHISTICATED REAL ESTATE VENTURES,
AND HAVING CONSULTED WITH COUNSEL OF ITS CHOOSING,
HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY WITH
RESPECT TO ANY ACTION OR PROCEEDING (1) BROUGHT BY
TRUSTOR, BENEFICIARY OR ANY OTHER PERSONS RELATING
TO (A) THE LOAN OR (B) THE SECURITY DOCUMENTS OR
(2) TO WHICH BENEFICIARY IS A PARTY. TRUSTOR
HEREBY AGREES THAT THIS DEED OF TRUST CONSTITUTES
A WRITTEN CONSENT TO WAIVER OF TRIAL BY JURY, AND
TRUSTOR DOES HEREBY CONSTITUTE AND APPOINT
BENEFICIARY ITS TRUE AND LAWFUL ATTORNEY IN FACT,
WHICH APPOINTMENT IS COUPLED WITH AN INTEREST AND
IRREVOCABLE, AND TRUSTOR DOES HEREBY AUTHORIZE AND
EMPOWER BENEFICIARY, IN THE NAME, PLACE, AND STEAD
OF TRUSTOR, TO FILE THIS DEED OF TRUST WITH THE
CLERK OR JUDGE OF ANY COURT OF COMPETENT
JURISDICTION AS A WRITTEN CONSENT TO WAIVER OF
TRIAL BY JURY. TRUSTOR ACKNOWLEDGES THAT ITS
WAIVER OF TRIAL BY JURY HAS BEEN MADE KNOWINGLY,
INTENTIONALLY AND WILLINGLY BY TRUSTOR AS PART OF
A BARGAINED FOR LOAN TRANSACTION. TRUSTOR WILL NOT
SEEK TO CONSOLIDATE ANY SUCH ACTION, IN WHICH A
JURY TRIAL HAS BEEN WAIVED, WITH ANY OTHER ACTION
IN WHICH A JURY TRIAL CANNOT OR HAS NOT BEEN
WAIVED.
11.23 JURISDICTION AND VENUE: TRUSTOR HEREBY
AGREES THAT ALL ACTIONS OR PROCEEDINGS INITIATED
BY
TRUSTOR AND ARISING DIRECTLY OR INDIRECTLY OUT OF
THIS DEED OF TRUST OR THE OTHER SECURITY DOCUMENTS
SHALL BE LITIGATED IN THE SUPERIOR COURT OF
ARIZONA, MARICOPA COUNTY DIVISION, OR THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
ARIZONA OR,
IF BENEFICIARY INITIATES SUCH ACTION, IN ADDITION
TO THE
FOREGOING COURTS ANY COURT IN WHICH BENEFICIARY
SHALL
INITIATE SUCH ACTION, TO THE EXTENT SUCH COURT HAS
JURISDICTION; PROVIDED, HOWEVER, THAT THE EXTENT
THAT THE
FOREGOING ARIZONA COURTS DO NOT HAVE JURISDICTION
OVER THE
LAND FOR PURPOSES OF A JUDICIAL FORECLOSURE OF THE
LAND,
SUCH FORECLOSURE SHALL BE LITIGATED IN THE
APPROPRIATE
COURT FOR THE COUNTY OF XXXXXX, CALIFORNIA.
TRUSTOR HEREBY
EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED
BY
BENEFICIARY IN ANY OF SUCH COURTS AND HEREBY
WAIVES
PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT, OR
OTHER
PROCESS OR PAPERS ISSUED THEREIN, AND AGREES THAT
SERVICE OF
SUCH SUMMONS AND COMPLAINT OR OTHER PROCESS OR
PAPERS
MAY BE MADE BY ACTUAL DELIVERY OR REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED,
ADDRESSED TO TRUSTOR AT THE
ADDRESS TO WHICH NOTICES ARE TO BE SENT HEREIN.
TRUSTOR
WAIVES ANY CLAIM THAT PHOENIX, ARIZONA OR THE
DISTRICT OF
29
ARIZONA IS AN INCONVENIENT FORUM OR AN IMPROPER
FORUM
BASED ON LACK OF VENUE. SHOULD TRUSTOR, AFTER
BEING SO SERVED, FAIL TO APPEAR OR ANSWER TO ANY
SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED
WITHIN THE NUMBER OF DAYS PRESCRIBED BY LAW AFTER
THE MAILING THEREOF, TRUSTOR SHALL BE DEEMED IN
DEFAULT AND AN ORDER AND/OR JUDGMENT MAY BE
ENTERED BY BENEFICIARY AGAINST TRUSTOR AS DEMANDED
OR PRAYED FOR IN SUCH SUMMONS, COMPLAINT, PROCESS
OR PAPERS, PROVIDED, HOWEVER, BENEFICIARY MAY NOT
SEEK A DEFAULT JUDGMENT FOR AT LEAST THIRTY (30)
DAYS AFTER THE DATE OF PROOF OF SERVICE. THE
EXCLUSIVE CHOICE OF FORUM FOR TRUSTOR SET FORTH
HEREIN SHALL NOT BE DEEMED TO PRECLUDE THE
ENFORCEMENT, BY BENEFICIARY, OF ANY JUDGMENT
OBTAINED IN ANY OTHER FORUM OR THE TAKING, BY
BENEFICIARY, OF ANY ACTION TO ENFORCE THE SAME IN
ANY OTHER APPROPRIATE JURISDICTION, AND TRUSTOR
HEREBY WAIVES THE RIGHT TO COLLATERALLY ATTACK ANY
SUCH JUDGMENT OR ACTION.
11.24 APPLICABLE LAW. THIS DEED OF TRUST AND THE
OTHER SECURITY DOCUMENTS SHALL BE DEEMED TO HAVE
BEEN DELIVERED AND ACCEPTED IN, AND THIS DEED OF
TRUST, AND THE OTHER SECURITY DOCUMENTS SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
INTERNAL LAWS AND DECISIONS OF, THE STATE OF
ARIZONA (WITHOUT REGARD FOR ITS CONFLICTS OF LAW
PRINCIPLES), THE STATE IN WHICH BENEFICIARY'S
PRINCIPAL PLACE OF BUSINESS IS LOCATED, AND BY
EXECUTION HEREOF TRUSTOR AND BY ACCEPTANCE HEREOF,
BENEFICIARY, EACH AGREE THAT SUCH LAWS AND
DECISIONS OF THE STATE OF ARIZONA SHALL GOVERN
THIS DEED OF TRUST AND THE OTHER SECURITY
DOCUMENTS, NOTWITHSTANDING THE FACT THAT THERE MAY
BE OTHER JURISDICTIONS WHICH MAY BEAR A REASONABLE
RELATIQNSHIP TO THE TRANSACTIONS CONTEMPLATED
HEREBY; PROVIDED, HOWEVER, THAT WITH RESPECT TO
THE PROCEDURAL AND SUBSTANTIVE MATTERS RELATING
ONLY TO THE CREATION, VALIDITY, PERFECTION AND
ENFORCEMENT BY BENEFICIARY OF ITS RIGHTS AND
REMEDIES AGAINST ANY REAL OR PERSONAL PROPERTY
COLLATERAL LOCATED IN ANY STATE OTHER THAN
ARIZONA, SUCH MATTERS SHALL BE GOVERNED BY THE
LAWS OF THE STATE IN WHICH SUCH PROPERTY IS
LOCATED.
IN WITNESS WHEREOF, this Deed of Trust has
been duly executed
and acknowledged by Trustor as of the day and year
first above written.
TRUSTOR PLEASE NOTE: UPON THE OCCURRENCE OF
AN EVENT OF DEFAULT (AS DEFrNED 1N ARTICLE VI
HEREIN), CALIFORNIA PROCEDURE PERMITS THE TRUSTEE
TO SELL THE MORTGAGED PROPERTY AT A SALE HELD
WITHOUT SUPERVISION BY ANY COURT AFTER EXPIRATION
OF A PERIOD PRESCRIBED BY LAW. UNLESS YOU PROVIDE
AN ADDRESS FOR THE GIVING OF NOTICE, YOU MAY NOT
BE ENTITLED TO NOTICE OF THE COMMENCEMENT OF SALE
PROCEEDINGS. BY EXECUTION OF THIS DEED OF TRUST,
YOU CONSENT TO SUCH PROCEDURE. BENEFICIARY URGES
YOU TO GIVE PROMPT NOTICE OF ANY CHANGE [N YOUR
ADDRESS SO THAT YOU MAY RECEIVE PROMPTLY ANY
NOTICE GIVEN PURSUANT TO THIS DEED OF TRUST.
30
FAIRFIELD RETIREMENT CENTER
a
California limited liability company
By:
Emeritus Corporation, a Washington
corporation
Its:
Managing Member
By: /s/
Xxxxx X. Xxxxx
--
---------------------------
Name:
Xxxxx X. Xxxxx
Its:
Secretary/Director of Finance and CFO
THE STATE OF WASHINGTON )
)
COUNTY OF KING )
On this 10th day of January 1997, before me,
Xxxxxxxxx X. Xxxxxxx, the undersigned notary
public, duly commissioned and sworn, personally
appeared Xxxxx X. Xxxxx, personally known to me
(or proved to me on the basis of satisfactory
evidence) to be the person that executed the
within instrument and acknowledged to me that he
or she executed the same in his or her authorized
capacity and that by his or her signature in the
instrument the person, or the entity upon behalf
of which the person acted, executed the
instrument.
In witness whereof, I have hereunto set my
hand and affixed my official seal the day and year
in this certificate first above written.
/s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------------
NOTARY PUBLIC
(SEAL)
31
