Exhibit 10.13
E*TRADE GROUP, INC.
NOTE SECURED BY DEED OF TRUST
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$4,217,365.63 May 7, 2000
Menlo Park, California
FOR VALUE RECEIVED, Xxxxxxx X. Xxxxxxx and Xxxx X. Xxxxxx-Xxxxxxx, as
husband and wife (collectively, the "Maker") promises to pay to the order of
E*TRADE Group, Inc. (the "Corporation"), at its corporate offices at 0000
Xxxxxxxx Xxxxx, Xxxxx Xxxx, XX 00000, the principal sum of Four Million Two
Hundred Seventeen Thousand Three Hundred Sixty-five and 63/100 Dollars
($4,217,365.63), together with all accrued interest thereon (the "Loan"), upon
the terms and conditions specified below.
1. Interest. No interest shall accrue on the unpaid balance
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outstanding under this Note during the first 36 months of the Loan. Commencing
on June 1, 2003, interest shall accrue on the unpaid balance outstanding from
time to time under this Note at six and four tenths percent (6.4%), compounded
annually. All computations of interest shall be made on the basis of a year of
360 days for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest is payable.
Anything herein to the contrary notwithstanding, if during any period for which
interest is computed hereunder the amount of interest computed on the basis
provided for in this Note, together with all fees, charges and other payments
which are treated as interest under applicable law, as provided for herein or in
any other document executed in connection herewith, would exceed the amount of
such interest computed on the basis of the Highest Lawful Rate (as defined
below), the Maker shall not be obligated to pay, and the Corporation shall not
be entitled to charge, collect, receive, reserve or take, interest in excess of
the Highest Lawful Rate, and during any such period the interest payable
hereunder shall be computed on the basis of the Highest Lawful Rate. As used
herein, "Highest Lawful Rate" means the maximum non-usurious rate of interest,
as in effect from time to time, which may be charged, contracted for, reserved,
received or collected by the Corporation in connection with this Note under
applicable law.
2. Principal. The entire principal balance of this Note, together
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with all accrued and unpaid interest, shall become due and payable in one lump
sum on May 7, 2005.
3. Payment. All payments of principal and interest on the Loan shall
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be made without offset or deduction and shall be made in immediately available
lawful tender of the United States and shall be applied first to the payment of
all accrued and unpaid interest and then to the payment of principal. Prepayment
of the principal balance of this Note, together with all accrued and unpaid
interest, may be made in whole or in part at any time without penalty. Whenever
any payment hereunder shall be stated to be due, or whenever any interest
payment date or any other date specified hereunder would otherwise occur, on a
day other than a Business Day (as defined below), then such payment shall be
made, and such interest payment date or other date shall occur, on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest hereunder. As used herein,
"Business Day" means a day (i) other than Saturday or Sunday, and (ii) on which
commercial banks are open for business in San Francisco, California.
4. Representations and Warranties. The Maker represents and warrants
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to the Corporation that this Note does not contravene any contractual or
judicial restriction binding on or affecting the Maker and that this Note is the
legal, valid and binding obligation of the Maker enforceable against him in
accordance with its terms.
5. Notice. The Maker agrees to notify the Corporation of the
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incurrence of any other indebtedness secured by the Collateral (as defined
below) prior to the incurrence thereof.
6. Events of Acceleration. The entire unpaid principal balance of
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this Note, together with all accrued and unpaid interest, shall become
immediately due and payable prior to the specified due date of this Note upon
the occurrence of one or more of the following events:
a. the failure to make any payment of principal, interest or any
other amount payable hereunder when due under this Note or the breach of any
other condition, obligation or covenant under this Note;
b. the breach of any representation or covenant under the Deed
of Trust (as defined below);
c. the filing of a petition by or against the Maker under any
provision of the Bankruptcy Reform Act, Title 11 of the United States Code, as
amended or recodified from time to time, or under any similar law relating to
bankruptcy, insolvency or other relief for debtors and the continuation of such
petition without dismissal for a period of thirty (30) days or more; or
appointment of a receiver, trustee, custodian or liquidator of or for all or any
part of the assets or property of the Maker; or the insolvency of the Maker; or
the making of a general assignment for the benefit of creditors by the Maker;
d. The Maker's death or incapacity;
e. any of the documents relating to the Collateral after
delivery thereof shall for any reason be revoked or invalidated, or otherwise
cease to be in full force and effect, or the Maker or any other person shall
contest in any manner the validity or enforceability thereof, or the Maker or
any other person shall deny that it has any further liability or obligation
thereunder; or any of the documents relating to the Collateral for any reason,
except to the extent permitted by the terms thereof, shall cease to create a
valid and perfected first priority lien in any of the Collateral purported to be
covered thereby;
f. the incurrence by the Maker of any other indebtedness secured
by the Collateral which has not been consented to by the Corporation;
g. the expiration of the two (2)-month period following the date
the Maker ceases for any reason to remain in the Corporation's employ;
h. an acquisition of the Corporation (whether by merger or
acquisition of all or substantially all of the Corporation's assets or
outstanding voting stock) for consideration
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payable in cash or freely-tradable securities; provided, however, that if the
Pooling of Interest Method, as described in Accounting Principles Board Opinion
No. 16, is used to account for the acquisition for financial reporting purposes,
acceleration shall not occur prior to the end of the sixty (60)-day period
immediately following the end of the applicable restriction period required
under Accounting Series Release Numbers 130 and 135; or
i. the occurrence of any event of default under the Deed of
Trust securing this Note or any obligation secured thereby.
7. Special Acceleration Event. In the event that the Maker sells any
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shares of the common stock of the Corporation, the unpaid principal balance of
this Note shall become immediately due and payable to the extent of one hundred
percent (100%) of the after-tax proceeds realized upon such sale, and the Maker
shall promptly deliver those after-tax proceeds to the Company to the extent
necessary to satisfy the accelerated balance of this Note.
8. Late Fee; Default.
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a. If any payment hereunder is not paid on or before the fifth (5th)
business day of the month during which any such payment first became due and
payable. Maker shall pay to Corporation a reasonable late or administrative
charge in the amount of five percent (5%) of the amount so unpaid.
b. Upon and after the occurrence of a default hereunder or any other
agreement or instrument evidencing, governing or securing this Loan (an "Event
of Default"), the Loan shall bear interest, payable upon demand, at the lessor
of twelve percent (12%) or the maximum rate allowed by law (the "Default Rate").
c. If any interest payment hereunder is not paid on of before the
fifth (5th) business day of the month during which such payment first became due
and payable, any interest so unpaid shall bear interest from the first day of
the month during which such payment first became due and payable until paid at
the Default Rate. Interest on the amount of interest so unpaid shall be
compounded monthly and shall be payable upon demand.
d. Maker and Corporation agree that the actual damages and costs
sustained by Corporation due to the failure to make timely payments would be
extremely difficult to measure and that the charges specified herein represent a
reasonably estimate by Maker and Corporation of a fair average compensation for
such damages and costs. Such charges shall be paid by Maker without prejudice to
the right of Corporation to collect any other amounts provided to be paid under
this Note or any other agreement or, with respect to late payments, to declare
an Event of Default.
9. Employment. For purposes of applying the provisions of this Note,
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the Maker shall be considered to remain in the Corporation's employ for so long
as the Maker renders services as a full-time employee of the Corporation, any
successor entity or one or more of the Corporation's fifty percent (50%)-or-more
owned (directly or indirectly) subsidiaries.
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10. Use of Proceeds; Security. The proceeds of the loan evidenced by
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this Note shall be applied solely to the payment of the purchase price of
Maker's principal residence in the San Francisco Bay Area. The obligations of
Maker under this Note shall be secured by a mortgage security interest in such
home (the "Collateral"), which security interest shall be more specifically
described by a deed of trust on such home to be executed by the Maker in favor
of the Corporation and recorded in the Official Records of San Mateo County
immediately upon completion of the purchase of such home (the "Deed of Trust"),
in substantially the same form as the deed of trust attached hereto as Exhibit
A. The Maker shall remain personally liable for payment of this Note, and any
other assets of the Maker, in addition to the Collateral, may be applied to the
satisfaction of the Maker's obligations hereunder.
11. Collection. The Maker agrees to pay on demand all the losses,
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costs, and expenses (including, without limitation, attorneys' fees and
disbursements) which the Corporation incurs in connection with enforcement or
attempted enforcement of this Note, or the protection or preservation of the
Corporation's rights under this Note, whether by judicial proceedings or
otherwise. Such costs and expenses include, without limitation, those incurred
in connection with any workout or refinancing, or any bankruptcy, insolvency,
liquidation or similar proceedings.
12. Waiver. A waiver of any term of this Note, the Deed of Trust or
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of any of the obligations secured thereby must be made in writing and signed by
a duly-authorized officer of the Corporation and any such waiver shall be
limited to its express terms. No delay by the Corporation in acting with respect
to the terms of this Note or the Deed of Trust shall constitute a waiver of any
breach, default, or failure of a condition under this Note, the Deed of Trust or
the obligations secured thereby. No single or partial exercise of any power
under this Note shall preclude any other or further exercise of such power or
exercise of any other power. The Maker waives presentment, demand, notice of
dishonor, notice of default or delinquency, notice of acceleration, notice of
protest and nonpayment, notice of costs, expenses or losses and interest
thereon, notice of interest on interest and diligence in taking any action to
collect any sums owing under this Note or in proceeding against any of the
rights or interests in or to properties securing payment of this Note. The Maker
agrees to make all payments under this Note without set-off of deduction and
regardless of any counterclaim or defense.
13. Conflicting Agreements. In the event of any inconsistencies
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between the terms of this Note and the terms of any other document related to
the loan evidenced by the Note, the terms of this Note shall prevail.
14. Governing Law. This Note shall be construed in accordance with
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the laws of the State of California. This Note shall be binding on the Maker and
his successors, assigns, personal representatives, heirs, and legatees, and
shall be binding upon and inure to the benefit of the Corporation, any future
holder of this Note and their respective successors and assigns. The Maker may
not assign or transfer this Note or any of his obligations hereunder without the
Corporation's prior written consent.
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15. Time of Essence. Time is of the essence with respect to every
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provision hereof.
"MAKER"
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxx-Xxxxxxx
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Xxxx X. Xxxxxx-Xxxxxxx
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EXHIBIT A
DEED OF TRUST
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
Xxx Xxxxxx
Xxxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxx Xxxxxx, Esq.
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SPACE ABOVE THIS LINE FOR RECORDERS USE
DEED OF TRUST WITH ASSIGNMENT OF RENTS
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THIS DEED OF TRUST WITH ASSIGNMENT OF RENTS (this "Deed of Trust") is
made as of this __ day of May, 2000, by Xxxxxxx X. Xxxxxxx and Xxxx X. Xxxxxx-
Xxxxxxx, as husband and wife (collectively, "Trustor"), whose address is 0000
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, XX, 00000, to NORTH AMERICAN TITLE COMPANY, a
California corporation ("Trustee"), for the benefit of E*TRADE GROUP, INC., a
Delaware corporation ("Beneficiary").
Trustor irrevocably grants, transfers and assigns to Trustee in trust,
with power of sale that certain property located at 0000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxx Xxxxx Xxxxxx, California, more particularly described in
Exhibit A attached hereto, together with all improvements thereon, rights
appurtenant thereto and the rents, issues and profits thereof (collectively, the
"Property"), subject, however, to the right, power and authority hereinafter
given to and conferred upon Beneficiary to collect and apply such rents, issues
and profits, for the purpose of securing: (i) payment of the sum of Four Million
Two Hundred Seventeen Thousand Three Hundred Sixty-five and 63/100 Dollars
($4,217,365.63) with interest thereon according to the terms of that certain
Note Secured by Deed of Trust dated as of May __, 2000 ("Note") made by Trustor,
payable to the order of Beneficiary, and extensions or renewals thereof; (ii)
the performance of each agreement of Trustor incorporated by reference or
contained herein or reciting it is so secured; and (iii) payment of additional
sums and interest thereon which may hereafter be loaned to Trustor, or his or
her successors or assigns, when evidenced by a promissory note or notes reciting
that they are secured by this Deed of Trust. The Property and any and all other
collateral pledged as security to Beneficiary are collectively referred to
herein as the "Collateral."
A. To protect the security of this Deed of Trust, and with respect to the
Property, Trustor agrees:
(1) To keep the Property in good condition and repair; not to remove
or demolish any building thereon; to complete or restore promptly and in good
and workmanlike
manner any building which may be constructed, damaged or destroyed thereon and
to pay when due all claims for labor performed and materials furnished therefor;
to comply with all laws affecting the Property or requiring any alterations or
improvements to be made thereon; not to commit or permit waste thereof: not to
commit, suffer or permit any act upon the Property in violation of law; to
cultivate, irrigate, fertilize, fumigate, prune and do all other acts which from
the character or use of the Property may be reasonably necessary, the specific
enumerations herein not excluding the general.
(2) To provide maintain and deliver to Beneficiary insurance policies
satisfactory to and with loss payable to Beneficiary. The amount collected under
any earthquake, fire or other insurance policy may be applied by Beneficiary
upon any indebtedness secured hereby and in such order as Beneficiary may
determine, or at option of Beneficiary the entire amount so collected or any
part thereof may be released to Trustor. Such application or release shall not
cure or waive any default or notice of default hereunder or invalidate any act
done pursuant to the Note or otherwise.
(3) To appear in and defend any action or proceeding purporting to
affect the security hereof or the rights or powers of Beneficiary or Trustee;
and to pay all costs and expenses, including cost of evidence of title and
attorney's fees in a reasonable sum, in any action or proceeding in which
Beneficiary or Trustee may appear, and in any suit brought by Beneficiary or
Trustee to foreclose this Deed of Trust.
(4) To pay, at least ten days before delinquency all taxes and
assessments affecting the Property, including assessments on appurtenant water
stock; and to pay, when due, all encumbrances, charges and liens, with interest,
on the Property or any part thereof, which appear to be prior or superior hereto
and all costs, fees and expenses incurred by Beneficiary or Trustee in
connection with this Deed of Trust.
Should Trustor fail to make any payment or to do any act as herein
provided, then Beneficiary or Trustee, but without obligation so to do and
without notice to or demand upon Trustor and without releasing Trustor from any
obligation hereof, may: make or do the same in such manner and to such extent as
either may deem necessary to protect the security hereof, Beneficiary or Trustee
being authorized to enter upon the Property for such purposes; appear in and
defend any action or proceeding purporting to affect the security hereof or the
rights or powers of Beneficiary or Trustee; pay, purchase, contest or compromise
any encumbrance, charge, or lien which in the judgment of either appears to be
prior or superior hereto and, in exercising any such powers, pay necessary
expenses, employ counsel and pay his or her reasonable fees.
(5) To pay immediately and without demand all sums so expended by
Beneficiary or Trustee, with interest from date of expenditure at the amount
then applicable under the Note, and to pay for any statement provided for by law
in effect at the date hereof regarding the obligation secured hereby, any amount
demanded by Beneficiary or Trustee not to exceed the maximum allowed by law at
the time when said statement is demanded.
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B. It is further agreed:
(1) That any award of damages in connection with any condemnation for
public use of or injury to the Property or any part thereof is hereby assigned
and shall be paid to Beneficiary who may apply or release such moneys received
in the same manner and with the same effect as above provided for disposition of
proceeds of insurance.
(2) That by accepting payment of any sum secured hereby after its due
date, Beneficiary does not waive its right either to require prompt payment when
due of all other sums so secured or to declare default for failure so to pay.
(3) That at any time or from time to time, without liability therefor
and without notice, upon written request of Beneficiary and presentation of this
Deed of Trust and the Note for endorsement, and without affecting the personal
liability of any person for payment of the indebtedness secured hereby,
Beneficiary or Trustee may: reconvey any part of the Property, consent to the
making of any map or plat thereof, join in granting any easement thereon, or
join in any extension agreement or any agreement subordinating the lien or
charge hereof.
(4) That upon written request of Beneficiary stating that all sums
secured hereby have been paid, and upon surrender of this Deed of Trust and the
Note to Trustee for cancellation and retention or other disposition as Trustee
in its sole discretion may choose and upon payment of its fees, Trustee shall
reconvey, without warranty, the Property then held hereunder. The Grantee in
such reconveyance may be described as "the person or persons legally entitled
thereto."
(5) That as additional security, Trustor hereby gives to and confers
upon Beneficiary the right, power and authority, during the continuance of these
trusts to collect the rents, issues and profits of the Property, reserving unto
Trustor the right, prior to any default by Trustor in payment of any
indebtedness secured hereby or in performance of any agreement hereunder or
under the Note, to collect and retain such rents, issues and profits as they
become due and payable. Upon any such default, Beneficiary may at any time
without notice, either in person, by agent, or by a receiver to be appointed by
a court, and without regard to the adequacy of any security for the indebtedness
hereby secured, enter upon and take possession of the Property or any part
thereof, in its own name sue for or otherwise collect such rents, issues, and
profits, including those past due and unpaid, and apply the same, less costs and
expenses of operation and collection, including reasonable attorneys' fees, upon
any indebtedness secured hereby, and in such order as Beneficiary may determine.
The entering upon and taking possession of the Property, the collection of such
rents, issues and profits and the application thereof as aforesaid, shall not
cure or waive any default or notice of default hereunder or invalidate any act
done pursuant to such notice.
(6) That upon default by Trustor in the payment of any indebtedness
secured hereby or in performance of any agreement hereunder, or upon the
occurrence of any Event of Acceleration or any other default by Trustor in the
payment or performance of any obligation under the Note, Beneficiary may declare
all sums secured hereby immediately due and payable by delivery to Trustee of
written declaration of default and demand for sale and of written notice
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of default and of election to cause the Property to be sold, which notice
Trustee shall cause to be filed for record. Beneficiary also shall deposit with
Trustee this Deed of Trust, the Note and all documents evidencing expenditures
secured hereby.
After the lapse of such time as may then be required by law following
the recordation of said notice of default, and notice of sale having been given
as then required by law, Trustee, without demand on Trustor, shall sell the
Property at the time and place fixed by it in said notice for sale, either as a
whole or in separate parcels, and in such order as it may determine, at public
auction to the highest bidder for cash in lawful money of the United States,
payable at the time of sale. Trustee may postpone the sale of all or any portion
of the Property by public announcement at such time and place of sale, and from
time to time thereafter may postpone such sale by public announcement at the
time fixed by the preceding postponement. Trustee shall deliver to such
purchaser its deed conveying the property so sold, but without any covenant or
warranty, express or implied. The recitals in such deed of any matters of facts
shall be conclusive proof of the truthfulness thereof. Any person, including
Trustor, Trustee, or Beneficiary as hereinafter defined, may purchase at such
sale.
After deducting all costs, fees and expenses of Trustee and of this
trust, including cost of evidence of title in connection with sale, Trustee
shall apply the proceeds of sale to payment of (in the following order of
priority): all sums owing under the terms hereof or under the Note, not then
repaid, with accrued interest at the amount allowed by law in effect at the date
hereof; all other sums then secured hereby; and the remainder, if any, to the
person or persons legally entitled thereto.
(7) Beneficiary or any successor in ownership of any indebtedness
secured hereby may, from time to time, by instrument in writing, substitute a
successor or successors to any Trustee named herein or acting hereunder, which
instrument, executed by Beneficiary and duly acknowledged and recorded in the
office of the recorder of the county or counties where the Property is situated,
shall be conclusive proof of proper substitution of such successor Trustee or
Trustees, who shall, without conveyance from Trustee's predecessor, succeed to
all its title, estate, rights, powers and duties. Said instrument must contain
the name of the original Trustor, Trustee and Beneficiary hereunder, the book
and page where this Deed of Trust is recorded and the name and address of the
new Trustee.
(8) This Deed of Trust applies to, inures to the benefit of, and
binds all parties hereto, their heirs, legatees, devisees, administrators,
executors, successors, and assigns. The term "Beneficiary" shall mean the owner
and holder, including pledgees, of the Note secured hereby, whether or not named
as Beneficiary herein. In this Deed of Trust, whenever the context so requires,
the masculine gender includes the feminine and/or the neuter, and the singular
number includes the plural.
(9) Trustee accepts this trust when this Deed of Trust, xxxx executed
and acknowledged, is made a public record as provided by law. Trustee is not
obligated to notify any party hereto of pending sale under any other Deed of
Trust or of any action or proceeding in which Trustor, Beneficiary or Trustee
shall be a party unless brought by Trustee.
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(10) Beneficiary may charge for a statement regarding the obligation
secured hereby, provided the charge thereof does not exceed the maximum allowed
by law.
(11) The undersigned Trustor, requests that a copy of any notice of
default and any notice of sale hereunder be mailed to him or her at his or her
address hereinbefore set forth.
(12) This Deed of Trust is further subject to the terms and conditions
set forth in Addendum to this Deed of Trust attached hereto and incorporated
herein by this reference.
(13) This Deed of Trust shall be governed by the laws of the state of
California and all applicable federal laws.
(14) Any married person who executes this Deed of Trust as a Trustor
and who is obligated under the Note or any other instrument relating thereto or
hereto agrees that any money judgment which Beneficiary or Trustee obtains
pursuant to the terms of this Deed of Trust or any other obligation of that
married person secured by this Deed of Trust may be collected by execution upon
that person's separate property and any community property of which that person
is a manager.
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IN WITNESS WHEREOF, Xxxxxxx has executed this Deed of Trust effective
as of the date first set forth above.
"TRUSTOR"
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxx Xxxxxxx
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Xxxx X. Xxxxxx-Xxxxxxx
STATE OF CALIFORNIA )
COUNTY OF SAN MATEO)
On ____________, 2000 before me, ___________________________ Notary
Public, personally appeared _____________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person whose name
is subscribed to the within instrument and acknowledged to me that he executed
the same in his authorized capacity, and that by his signature on the instrument
the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal. (SEAL)
____________________________
Signature of Notary
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STATE OF CALIFORNIA)
COUNTY OF SAN MATEO)
On ______________, 2000 before me, _________________________ Notary
Public, personally appeared _______________________, personally known to me (or
proved to me on the basis of satisfactory evidence to be the person whose name
is subscribed to the within instrument and acknowledged to me that he executed
the same in his authorized capacity, and that by his signature on the instrument
the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal. (SEAL)
____________________________
Signature of Notary
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EXHIBIT A
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Description: The land referred to herein is situated in the State of California,
County of SAN MATEO, TOWN OF HILLSBOROUGH, and is described as follows:
BEGINNING AT A POINT ON THE NORTHWESTERLY LINE OF BROOKVALE ROAD, AT THE MOST
SOUTHERLY CORNER OF THAT CERTAIN 14 ACRE TRACT OF LAND DESCRIBED IN DEED FROM
XXXXXXX X. XXXXXXXXX TO XXXXXXX XXXXX XXXX, BY DEED DATED MARCH 11, 1932 AND
RECORDED MARCH 14, 1932 IN BOOK 559 OF OFFICIAL RECORDS OF SAN MATEO COUNTY AT
PAGE 44; THENCE NORTH 50(Degrees) 47' WEST ALONG THE SOUTHWESTERLY LINE OF SAID
14 ACRE TRACT, 249.04 FEET, MORE OR LESS, TO THE SOUTHEASTERLY LINE OF LANDS
DESCRIBED IN DEED FROM XXXXXX X. XXXX XXX TO XXXXXXX XXXXX XXXX, DATED FEBRUARY
25, 1937 AND RECORDED FEBRUARY 27, 1937 IN BOOK 733 OF OFFICIAL RECORDS AT PAGE
139; THENCE NORTH 39(Degrees) 13' EAST ALONG SAID SOUTHEASTERLY LINE 131.2 FEET,
MORE OR LESS, TO THE SOUTHWESTERLY LINE OF LANDS DESCRIBED IN DEED FROM XXXXXX
X. XXXX XXX AND WIFE, TO XXXX X. XXXXXXX, DATED JUNE 9, 1936 AND RECORDED JUNE
24, 1936 IN BOOK 699 OF OFFICIAL RECORDS OF SAN MATEO COUNTY AT PAGE 85; THENCE
SOUTH 46(Degrees) 49' 45" EAST ALONG SAID SOUTHWESTERLY LINE 227 FEET, MORE OR
LESS, TO THE NORTHWESTERLY LINE OF BROOKVALE ROAD; THENCE ALONG SAID
NORTHWESTERLY LINE SOUTH 32(Degrees) 53' WEST 70 FEET AND SOUTH 28(Degrees) 28'
WEST 46.35 FEET TO THE POINT OF BEGINNING.
ASSESSOR'S PARCEL NO.: 000-000-000 J.P.N. NO. 028-012-120-21 A
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ADDENDUM
THIS ADDENDUM is attached to, and made a part of, that certain Deed of
Trust With Assignment of Rents (the "Deed of Trust") dated May ____, 2000
executed by Xxxxxxx X. Xxxxxxx and Xxxx X. Xxxxxx-Xxxxxxx, as Trustor, to NORTH
AMERICAN TITLE COMPANY, a California corporation, as Trustee, for the benefit
and security of E*TRADE GROUP, INC., a Delaware corporation, as Beneficiary.
Capitalized terms used herein and not otherwise defined herein shall have the
same meaning as in the Deed of Trust.
In addition to the terms and conditions set forth in the Deed of
Trust, the following provisions are hereby incorporated as if fully set forth
therein.
1. Due on Sale or Encumbrance. If Trustor shall convey or alienate
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the Property or any part thereof or interest therein, or shall be divested of
its title to the Property in any manner, whether voluntary or involuntary, any
indebtedness or obligation secured by the Deed of Trust, irrespective of the
maturity date expressed in the Note, shall become immediately due and payable at
the option of Beneficiary, without demand or notice.
2. Hazardous Materials. Trustor represents and warrants that, to the
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best of its knowledge, no hazardous materials (which shall mean any material or
substance that, whether by its nature or use, is now or hereafter defined as a
hazardous waste, hazardous substance, pollutant or contaminant under any
environmental laws or regulations or which is toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise
hazardous) are located at, on, in, under or about the Property and that the
Property is in full compliance with all such environmental laws and regulations.
Trustor shall comply in all respects with all environmental laws and regulations
and will not generate, release, store, handle, process, dispose of or otherwise
use any hazardous materials on or about the Property. Trustor shall defend,
indemnify and hold harmless Beneficiary and its officers, directors and
shareholders from and against any and all claims, demands, penalties, causes of
actions, fines, liabilities, settlements, damages, costs or expenses of whatever
kind or nature, known or unknown, foreseen or unforeseen, contingent or
otherwise arising out of, or in any way related to (i) any breach by Trustor of
the provisions of this paragraph, (ii) the release, disposal, spillage,
discharge, emission, leakage, generation, release or threatened release of any
hazardous materials in, on, under or about the Property, (iii) any personal
injury arising out of or related thereto or (iv) any violation of any such
environmental laws or regulations. To the extent applicable, Beneficiary shall
have all the rights and remedies under California Code of Civil Procedure
Sections 564(c) and 726.5 and California Civil Code Section 2929.5.
3. Events of Default. In addition to the defaults set forth in the
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Deed of Trust (which shall be deemed "Events of Acceleration" for purposes of
the Note), each of the following events shall also constitute an Event of
Default:
a. Trustor shall become insolvent or generally shall not be
paying its debts as they become due, as defined in the Bankruptcy Reform Act,
Title 11 of the United States Code, as amended from time to time (the
"Bankruptcy Code") or shall file a voluntary petition in bankruptcy seeking to
effect a plan or other arrangement with creditors or seek any
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other relief under the Bankruptcy Code or under any other state or federal law
relating to bankruptcy or other relief for debtors;
b. Any court or similar tribunal shall enter a decree or order
appointing a receiver, trustee, assignee in bankruptcy or insolvency of Trustor
or of the Property or shall enter a decree or order for relief in any
involuntary case under the Bankruptcy Code; or
c. The occurrence of any breach, default or failure under any
other deed of trust, mortgage or other security agreement or interest
encumbering the Property.
d. The failure of Trustor to pay any principal or interest
evidenced by that certain Note Secured by Deed of Trust (the "Note") of even
date herewith from Trustor to Beneficiary, within five (5) days of the date so
provided for therein;
e. The failure by Trustor to perform or comply with any other
material obligation, covenant or condition contained in this Deed of Trust
within ten (10) days following written notice from Beneficiary of such failure;
or
f. If any hazardous materials are found in, on, under or about
the Property, or if Trustor becomes subject to any proceeding or investigation
pertaining to the release by Trustor or any other person of any hazardous
materials into the environment or to any violation of any environmental laws and
Trustor fails to cure the same within such time as may be provided by applicable
law.
"Trustor"
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxx-Xxxxxxx
-----------------------------
Xxxx X. Xxxxxx-Xxxxxxx
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STATE OF CALIFORNIA )
COUNTY OF SAN MATEO )
On _____________, 2000 before me, ____________________, Notary Public,
personally appeared ______________________, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in her authorized capacity, and that by his signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal. (SEAL)
_______________________________
Signature of Notary
STATE OF CALIFORNIA )
COUNTY OF SAN MATEO )
On _____________, 2000 before me, ____________________, Notary Public,
personally appeared ______________________, personally known, to me (or proved
to me on the basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal. (SEAL)
_______________________________
Signature of Notary
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