EXHIBIT 10.14
[LETTERHEAD OF IMPERIAL BANK]
000 Xxxxxxx Xxxxxxx
Xxxx, Xxxxxxxxxx
Subject: Credit Terms and Conditions ("Agreement")
Gentlemen:
To induce you to make loans to the undersigned (herein called "Borrower"), and
in consideration of any loan or loans you, in your discretion, may make to
Borrower, Borrower warrants and agrees as follows:
A. Borrower represents and warrants that:
1. EXISTENCE AND RIGHTS.
Company is a
[_] sole proprietor.
or individual.
[_] partnership.
[X] corporation.
If a partnership or corporation, Borrower is duly organized and existing and in
good standing under the laws of the State of California (if a corporation,
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without limit as to the duration of its existence) and is authorized and in good
standing to do business in the State of California. Company has powers and
adequate authority, rights and franchises to own its property and to carry on
its business as now conducted, and is duly qualified and in good standing in
each State in which the character of the properties owned by it therein or the
conduct of its business makes such qualification necessary, and Borrower has the
power and adequate authority to make and carry out this Agreement. Borrower has
no investment in any other business entity, except as previously disclosed.
2. AGREEMENT AUTHORIZED. The execution, delivery and performance of this
Agreement are duly authorized and do not require the consent or approval of any
governmental body or other regulatory authority; are not in contravention of or
in conflict with any law or regulation or any term or provision of Borrower's
articles of incorporation, by-laws, or Articles of Association, as the case may
be, and this Agreement is the valid, binding and legally enforceable obligation
of Borrower in accordance with its terms.
3. NO CONFLICT. The execution, delivery and performance of this Agreement
are not in contravention of or in conflict with any agreement, indenture or
undertaking to which Borrower is a party or by which it or any of its property
may be bound or affected, and do not cause any lien, charge or other encumbrance
to be created or imposed upon any such property by reason thereof.
4. LITIGATION. There is no litigation or other proceeding pending or
threatened against or affecting Borrower, and Borrower is not in default with
respect to any order, writ, injunction, decree or demand of any court or other
governmental or regulatory authority.
5. FINANCIAL CONDITION. The balance sheet of Borrower as of February 28,
------------
1995, and the related profit and loss statement for the period ended on that
----- ------
date, a copy of which has heretofore been delivered to you by Borrower, and all
other statements and data submitted in writing by Borrower to you in connection
with this request for credit are true and correct, and said balance sheet and
profit and loss statement truly present the financial condition of Borrower as
of the date thereof and the results of the operations of Borrower for the period
covered thereby, and have been prepared in accordance with generally accepted
accounting principles on a basis consistently maintained subject to year-end and
audit adjustments. Since such date there have been no materially adverse changes
in the financial condition or business of Borrower. Borrower has no knowledge of
any liabilities, contingent or otherwise, at such date not reflected in said
balance sheet, and Borrower has not entered into any special commitments or
substantial contracts which are not reflected in said balance sheet, other than
in the ordinary and normal course of its business, which may have a materially
adverse effect upon its financial condition, operations or business as now
conducted.
6. TITLE TO ASSETS. Borrower has good title to its assets, and the same
are not subject to any liens or encumbrances other than those permitted by
Section C.3 hereof.
7. TAX STATUS. Borrower has no liability for any delinquent state, local or
federal taxes, and if Borrower has contracted with any governmental agency,
Borrower has no liability for renegotiation of profits.
Borrower: MEGABIOS CORP.
8. TRADEMARKS, PATENTS. Borrower, as of the date hereof, possesses all
necessary trademarks, trade names, copyrights, patents, patent rights, and
licenses to conduct its business as now operated, without any known conflict
with the valid trademarks, trade names, copyrights, patents and license rights
of others.
9. REGULATION U. The proceeds of this loan shall not be used to purchase
or carry margin stock (as defined with Regulation U of the Board of Governors
of the Federal Reserve system).
B. Borrower agrees that so long as it is indebted to you, it will, unless you
shall otherwise consent in writing:
1. RIGHTS AND FACILITIES. Maintain and preserve all rights, franchises and
other authority adequate for the conduct of its business; maintain its
properties equipment and facilities in good order and repair; conduct its
business in an orderly manner without voluntary interruption and, if a
corporation or partnership, maintain and preserve its existence.
2. INSURANCE. Maintain public liability, property damage and workers'
compensation insurance and insurance on all its insurable property against fire
and other hazards with responsible insurance carriers to the extent usually
maintained by similar businesses.
3. TAXES AND OTHER LIABILITIES. Pay and discharge, before the same become
delinquent and before penalties accrue thereon, all taxes, assessments and
governmental charges upon or against it or any of its properties, and all its
other liabilities at any time existing, except to the extent and so long as:
(a) The same are being contested in good faith and by appropriate proceedings
in such manners as not to cause any materially adverse effect upon its financial
condition or the loss of any right of redemption from any sale thereunder, and
(b) it shall have set aside on its books reserves (segregated to the extent
required by generally accepted accounting practice) deemed by it adequate with
respect thereto.
4. [Intentionally struck out]
5. RECORDS AND REPORTS. Maintain a standard and modern system of accounting in
accordance with generally accepted accounting principles on a basis consistently
maintained; permit your representatives to have access to, and to examine its
properties, books and records at all reasonable times; and furnish you:
(a) As soon as available, and in any event within 25 days after the close of
--
each month of each fiscal year of Borrower, commencing with the month next
----- -----
ending, a balance sheet, profit and loss statement and reconciliation of
Borrower's capital accounts as of close of such period and covering operations
for the portion of Borrower's fiscal year ending on the last day of such period,
all in reasonable detail and stating in comparative form the figures for the
corresponding date and period in the previous fiscal year, prepared in
accordance with generally accepted accounting principles on a basis consistently
maintained by Borrower and certified by an appropriate officer of Borrower,
subject, however, to year-end audit adjustments;
(b) As soon as available, and in any event within 90 days after the close of
each fiscal year of Borrower, a report of audit of Company as of the close of
and for such fiscal year, all in reasonable detail and stating in comparative
form the figures as of the close of and for the previous fiscal year, with the
[X] unqualified [_] qualified opinion of accounts satisfactory to you, or
[_] no third party opinion required.
(c) within 90 days after the end of each fiscal year of Borrower,a
certificate of chief financial officer or partner of Borrower,
stating that Borrower has performed and observed each and every
covenant contained in this Letter of Inducement to be performed by it
and that no event has occurred and no condition then exists which
constitutes an event of default hereunder or would constitute such an
event of default upon the lapse of time or upon the giving of notice
and the lapse of time specified herein, or, if any such event has
occurred or any such condition exists, specifying the nature thereof:
(d) Promptly after the receipt thereof by Borrower, copies of any
detailed audit reports submitted to Borrower by independent
accountants in connection with each annual or interim audit of the
accounts of Borrower made by such accountants;
(e) Promptly after the same are available, copies of all such proxy
statements, financial statements and reports as Borrower shall send
to its stockholders, if any, and copies of all reports which Borrower
may file with the Securities and Exchange Commission or any
governmental authority at any time substituted therefor; and
(f) Such other information relating to the affairs of Borrower as you
reasonably may request from time to time.
(g) Notice of Default. Promptly notify the Bank in writing of the
occurrence of any event of default hereunder or any event which upon
notice and lapse of time would be an event of default.
C. Borrower agrees that so long as it is indebted to you,it will not, without
your written consent:
1. Type of Business; Management; Executives' Compensation. Make any
substantial change in the character of its business; or make any change in its
executive management; or allow the salary, bonuses or other compensation of any
of its executives,to exceed $ N/A per annum in the aggregate.
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2. Outside Indebtedness. Create, incur, assume or permit to exist any
indebtedness for borrowed moneys other than loans from you except (i)
obligations now existing as shown in financial statement dated February 28,1995.
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excluding those being refinanced by your bank; (ii) short-term bridge loans from
corporate insiders; and (iii) indebtedness incurred to finance equipment (the
"Permitted Debt") or sell or transfer, either with or without recourse, any
accounts or notes receivable or any moneys due to become due.
3. Liens and Encumbrances. Create, incur, or assume any mortgage, pledge
encumbrance, lien or charge of any kind (including the charge upon property at
any time purchased or acquired under conditional sale or other title retention
agreement) upon any asset now owned or hereafter acquired by it, other than
liens for taxes not delinquent and liens in your favor and liens in connection
with Permitted Debt.
4. Loans, Investments, Secondary Liabilities. Make any loans or advances in
to any person or other entity other than in the ordinary and normal course of
its business as now conducted or make any investment in the securities of any
person or other entity other than the United States Government; or guarantee or
otherwise become liable upon the obligation of any person or other entity,
except by endorsement of negotiable instruments for deposit or collection in the
ordinary and normal course of its business.
5. Acquisition or Sale of Business; Merger or Consolidation. Purchase or
otherwise acquire the assets or business of any person or other entity; or
liquidate, dissolve, merge or consolidate, or commence any proceedings therof;
or sell any assets except in the ordinary and normal course of its business as
now conducted; or sell, lease, assign, or transfer any substantial part of its
business or fixed assets, or any property or other assets necessary for the
continuance of its business as now conducted including without limitation the
selling of any property or other asset accompanied by the leasing back of the
same.
6. Dividends, Stock Payments. If a corporation declare or pay any dividend
(other than dividends payable in common stock of Borrower) or make any other
distribution on any of its capital stock now outstanding or hereafter issued or
a purchase, redeem or retire any of such stock; except, however, Borrower may
pay a cash dividend to its shareholders in an amount not to exceed 0% of
net after taxes earnings for such dividend period.
7. [Intentionally struck]
8. [Intentionally struck]
D. The occurence of any one of the following events of default shall, at your
option, terminate your commitment to lend and make all sums of principal and
interest then remaining unpaid on all Borrower's indebtedness to you immediately
due and payable, all without demand, presentment or notice, all of which are
hereby expressly waived;
1. FAILURE TO PAY NOTE. Failure to pay installment of principal or on
interest on any indebtedness of Borrower to you.
2. BREACH OF COVENANT. Failure of Borrower to perform any other term or
condition of this Agreement binding upon Borrower.
3. Breach of Warranty. Any of Borrower's representations or warranties made
herein or any statement or certificate at any time given in writing pursuant
hereto or in connection herewith shall be false or misleading in any material
respect.
4. INSOLVENCY; RECEIVER OR TRUSTEE. Borrower shall become insolvent; or
admit its inability to pay its debts as they mature; or make an assignment for
the benefit of creditors; or apply for or consent to the appointment of a
receiver or trustee for it or for a substantial part of its property or
business.
5. JUDGEMENTS, ATTACHMENTS. Any money judgement, writ or warrant or
attachment, or similar process shall be entered or filed against Borrower or
any of its assets and shall remain unvacated unbonded or unstayed for a period
of 10 days or in any event later than five days prior to the date of any
proposed sale thereunder.
6. BANKRUPTCY. Bankruptcy, insolvency, reorganization or liquidation
proceedings or other proceedings for relief under any bankruptcy law or any law
for the relief of debtors shall be instituted by or against Borrower and, if
instituted against it, shall be consented to.
E. MISCELLANEOUS PROVISIONS.
1. FAILURE OR INDULGENCE NOT WAIVER. No failure or delay on the part of your
Bank or any holder of Notes issued hereunder, in the exercise of any power,
right or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or privilege preclude other
or further exercise thereof or of any other right, power or privilege. All
rights and remedies existing under this agreement or any note issued in
connection with a loan that your Bank may make hereunder, are cumulative to, and
not exclusive of, any rights or remedies otherwise available.
The terms and conditions in the attached commitment letter dated May 19,1995
are hereby incorporated. In the event of a conflict between this Agreement
and the commitment letter, the terms in the commitment letter prevail.
MEGABIOS CORP.
By /s/ Xxxxxxxx X. XxXxxx
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(Signature and Title)
PRESIDENT & CEO
By /s/
-------------------------------------
DO NOT DESTROY THIS NOTE:
When paid, this note, with the Deed of Trust securing same, must be surrendered
to the Trustee for cancellation before reconveyance will be made
[LOGO APPEARS HERE]
IMPERIAL BANK
Member FDIC
NOTE SECURED BY DEED OF TRUST
$ 1,500,000.00 San Jose, California, August 15, 1995
On July 31, 1998, and as hereinafter provided, for value received, the
undersigned promises to pay to IMERIAL BANK ("Bank"), a California banking
corporation, or order, at its SANTA XXXXX VALLEY REGIONAL office, the principal
sum of $ 1,500,000.00 or such sums up to the maximum if so stated, as the Bank
may now or hereafter advance to or for the benefit of the undersigned in
accordance with the terms hereof, together with interest from date of
disbursement or N/A, whichever is later, on the unpaid principal balance [_] at
the rate of __% per year [X] at the rate of 2.000% per year in excess of the
rate of interest which Bank has announced as its prime lending rate (the "Prime
Rate"), which shall vary concurrently with any change in such Prime Rate, or
$250.00, whichever is greater. Interest shall be computed at the above rate on
the basis of the actual number of days during which the principal balance is
outstanding, divided by 360, which shall, for interest computation purposes, be
consider one year. Interest shall be payable [X] monthly [_] quarterly [_]
included with principal [X] in addition to principal [_] beginning AUGUST 31,
1995 and if not so paid shall become a part of the principal. All payments shall
be applied first to interest, and the remainder, if any, on principal. [X] (if
checked), Principal shall be payable in installments of $41,666.67, or more,
each installment on the 31st day of each MONTH, beginning AUGUST 31, 1995.
Any partial prepayment shall be applied to the installments, if any, in
inverse order of maturity. Should default be made in the payment of principal or
interest when due, or in the performance or observance, when due, of any item,
convenant or condition of any deed of trust, security agreement or other
agreement (including amendments or extentions thereof) securing or pertaining
to this note, at the option of the holder hereof and without notice or demand,
the entire balance of principal and accrued interest then remaining unpaid shall
(a) become immediately due and payable, and (b) thereafter bear interest, until
paid in full, at the increased rate of 5% per year in excess of the rate
provided for above, as it may vary from time to time.
Defaults shall include, but not be limited to, the failure of the maker(s)
to pay principal or interest when due; the filing as to each person obligated
hereon, whether as maker, co-maker, endorser or guarantor (individually or
collectively referred to as the "Obligor") of a voluntary or involuntary
petition under the provisions of the Federal Bankruptcy Act; the issuance of
any attachment or execution against any asset of any Obligor; the death of any
Obligor; or any deterioration of the financial condition of any Obligor which
results in the holder hereof considering itself, in good faith, insecure.
[_] If any installment payment or principal balance payment due hereunder is
delinquent ten or more days, Obligor agrees to pay a late charge in the amount
of 5% of the payment so due and unpaid, in addition to the payment; but nothing
in this paragraph is to be construed as any obligation on the part of the holder
of this note to accept payment of any installment past due or less than the
total unpaid principal balance after maturity.
If this note is not paid when due, each Obligor promises to pay all costs
and expenses of collection and reasonable attorney's fees incurred by the holder
hereof on account of such collection, plus interest at the rate applicable to
principal, whether or not suit is filed hereon. Each Obligor shall be jointly
and severally liable hereon and consents to renewals, replacements and
extensions of time for payment hereof, before, at, or after maturity; consents
to the acceptance, release or substitution of security for this note; and waives
demand and protest and the right to assert any statute of limitations. Any
married person who signs this note agrees that recourse may be had against
separate property for any obligations hereunder. The indebtedness evidenced
hereby shall be payable in lawful money of the United States. In any action
brought under or arising out of this note, each Obligor, including successor(s)
or assign(s) hereby consents to the application of California law, to the
jurisdiction of any competent court within the State of California, and to
service of process by any means authorized by California law.
This note is secured by a deed of trust, dated AUGUST 15, 1995, to IMPERIAL
BANCORP as Trustee which contains the following provisions: "In the event the
herein described property or any part thereof, or any interest therein is sold,
agreed to be sold, conveyed, transferred, disposed of, further encumbered, or
alienated by trustor or by the operation of law or otherwise, without the
written consent of beneficiary first obtained, all obligations secured by this
instrument, irrespective of the maturity dates expressed therein, at the option
of the holder beneficiary, and without demand or notice shall immediately become
due and payable. Consent to one such transaction shall not be deemed to be a
waiver of the right to require such consent to future or successive
transactions".
No single or partial exercise of any power hereunder, or under any deed of
trust, security agreement or other agreement in connection herewith shall
preclude other or further exercises thereof or the exercise of any such power.
The holder hereof shall at all times have the right to proceed against any
portion of the security for this note in such order and in such manner as such
holder may consider appropriate, without waiving any rights with respect to any
of the security. Any delay or omission on the part of the holder hereof in
exercising any right hereunder, or under any deed of trust, security agreement
or other agreement, shall not operate as a waiver of such right, or of any other
right, under this note or any deed of trust, security agreement or other
agreement in connection herewith.
MEGABIOS CORP.
___________________________________ ------------------------------------
BY /s/ Xxxxxxx Xxxxxxx
___________________________________ ------------------------------------
/s/ Xxxxxxxx XxXxxx
___________________________________ ------------------------------------
[LOGO OF IMPERIAL BANK APPEARS HERE]
ITEMIZATION OF AMOUNT FINANCED
DISBURSEMENT INSTRUCTIONS
Name(s):MEGABIOS CORP. Date: August 15,1995
$ paid to you directly by Cashiers Check No.
$ credited to deposit account No.
$ 1,500,000.00 paid on Loan(s) No. 00-0000-0000
$ amounts paid to Bank for:
Amounts paid to others on your behalf:
$ to Title Insurance Company
$ to Public Officials
$ to
$ to
$ to
$ to
$ 1,500,000.00 SUBTOTAL (NOTE AMOUNT)
LESS $ 0.00 Prepaid Finance Charge (Loan fee(s))
$ 1,500,000.00 TOTAL (AMOUNT FINANCED)
Upon consummation of this transaction, this document will also serve as the
authorization for Imperial Bank to disburse the loan proceeds as stated above.
MEGABIOS CORP.
BY /s/ Xxxxxxx Xxxxxxx
----------------------------------- ------------------------------------
Signature Signature
/s/ Xxxxxxxx XxXxxx
----------------------------------- ------------------------------------
Signature Signature
RECORDING REQUESTED BY
IMPERIAL BANK
WHEN RECORDED, MAIL TO
IMPERIAL BANK
Note Center
0000 X. Xx Xxxxxxx Xxxx.
Xxxxxxxxx, Xxxxxxxxxx 00000
Special Markets Group #2005 INDEX AS DEED OF TRUST AND ASSIGNMENT OF RENTS
-------------------------------- SINCE ABOVE THIS LINE FOR RECORDER'S USE-----
Real Estate Loan
Short Form
DEED OF TRUST AND ASSIGNMENT OF RENTS
BY THIS DEED OF TRUST, made on August 15,1995
by MEGABIOS CORP.
(herein called "Trustor"),
whose address is 863 X. Xxxxxx Road
(Number and Street)
XXXXXXXXXX XX 00000
(City) (State) (Zip Code)
to IMPERIAL BANCORP, a California corporation as Trustee, for the benefit of
IMPERIAL BANK, a California corporation, as Beneficiary,
Trustor irrevocably GRANTS, TRANSFERS AND ASSIGNS TO TRUSTEE IN TRUST, WITH
POWER OF SALE, all that property in the
Burlingame, County of San Mateo, State of California, described as:
Trustors interest as tenant under lease with PRUDENTIAL LIFE
AND ACCIDENT INSURANCE COMPANY, a Tennessee corporation dated
December 21, 1993 in real property described on the attached
"EXHIBIT A" consisting of one page.
Initial here PE
----
and commonly known as 000 X Xxxxxx Xxxx, Xxxxxxxxxx, XX 00000 ,
INCLUDING (a) all appurtenances and easements and rights of way used in
connection therewith or as a means of access thereto; (b) all buildings,
improvements and fixtures now or hereafter placed thereon, it being understood
and agreed that all classes of property attached or unattached used in
connection therewith shall be deemed fixtures; and (c) any water rights and/or
the stock of any water company which rights and/or stock are appurtenant or
pertain to said property.
TOGETHER WITH the rents, issues and profits thereof, SUBJECT, HOWEVER, to the
right, power and authority hereinafter given to and conferred upon Trustor to
collect and retain such rents, issues and profits prior to any default
hereunder.
FOR THE PURPOSE OF SECURING: (1) Payment of the indebtedness with interest
thereon evidenced by a PROMISSORY NOTE
executed
by TRUSTOR ,
dated August 15, 1995, in the principal sum of $1,500,000.00 payable to
Beneficiary or order, and all modifications, extensions or renewals thereof; (2)
Payment of such additional sums with interest thereon as the then record owner
of said property may hereafter borrow from Beneficiary, when evidenced by note
(or notes) or any agreement reciting that it is so secured; (3) Performance of
each agreement of Trustor and Borrower incorporated herein by reference or
contained herein; and (4) Performance of each agreement of Trustor contained in
any and all agreements executed by Trustor for the purpose of further securing
any obligations secured hereby.
In the event the herein described property, or any part therof, or any interest
therein, is sold, agreed to be sold, conveyed, transferred, disposed of, further
encumbered, or alienated by Trustor or by the operation of law or otherwise
without the written consent of Beneficiary first obtained, all obligations
secured by this instrument, irrespective of the maturity dates expressed
therein, at the option of the holder beneficiary, and without demand or notice,
shall immediately become due and payable. Consent to one such transaction shall
not be deemed to be a waiver of the right to require such consent to future or
successive transactions.
Page 1 of 4
1. To complete promptly and in good and skillful manner any building or
improvement which may be begun on said property, and to pay when due all costs
and liabilities incurred therefor or in connection therewith, and if the loan
secured hereby, or any part thereof, is obtained for the purpose of construction
of improvements on said property, anything in the Deed of Trust to the contrary
notwithstanding: (a) to commence and complete such improvements promptly and in
any event both with respect to commencement and completion, not later than the
times specified in the building loan agreement; (b) to complete the same in
accordance with plans and specifications satisfactory to the Beneficiary; (c)
to allow Beneficiary to inspect said property at all times during construction;
(d) to replace, within fifteen (15) days after written notice from Beneficiary,
any work or materials unsatisfactory to Beneficiary, which notice may be given
to trustor by registered mail, sent to his last known address, or by personal
service; and (e) that no cessation of the construction of such improvements
shall continue, for any reason whatsoever, for a period of five (5) days or
more.
2. To maintain said property in good condition and repair; not to remove,
demolish or substantially alter any building or improvement thereon; not to
permit any building or improvement thereon to remain vacant or unoccupied for
more than six (6) consecutive months; to restore promptly and in good and
skillful manner any improvement thereon which is damaged or destroyed, and to
pay when due all costs and liabilities incurred therefor or in connection
therewith; to comply with all laws ordinances, regulations, covenants,
conditions, and restrictions affecting said property or requiring any
alterations or improvements to be made thereon; not to commit, suffer or permit
any waste thereof or any act upon said property in violation of law of
covenants, conditions or restrictions affecting said property; to perform, in
the event that all or any portion of said property constitutes a leasehold
estate belonging to Trustor, each and every obligation of Trustor under the
terms of the lease agreement and to refrain from taking action prohibited, as
necessary, to preserve and protect the leasehold estate and the value thereof;
if said lands are agricultural, property to harvest and care for the crops at
any time growing thereon or produced therefrom, also to cultivate, irrigate,
fertilize, spray, fumigate, and prune; and to do all other acts which from the
character or use of the property are reasonably necessary to protect and
preserve said property, the specific enumerations herein not excluding the
general, Trustee, upon presentation to it of an affidavit signed by Beneficiary
setting forth facts showing a default by Trustor under this paragraph or
paragraph (1) above. It is authorized to accept as true and conclusive all facts
and statements therein, and to act thereon hereunder.
3. To provide and maintain in force, at all times, fire and such other types
of insurance policies covering said property as Beneficiary may from time to
time require, each in an amount satisfactory to and with loss payable to
Beneficiary, and to deliver such policy or policies to Beneficiary together with
written evidence showing payment of the premium therefor. No such policy shall
be cancellable except after ten (10) days written notice to Beneficiary. Each
such policy shall be for a term and in form and content and in such companies as
may be satisfactory to Beneficiary, and shall remain in the possession of
Beneficiary as further security for performance of the obligations secured
hereby. At least thirty (30) days prior to the expiration of any such insurance
policy, a policy or policies renewing or extending the expiring insurance shall
be delivered to Beneficiary together with written evidence showing payment of
the premium therefor. If any such insurancy policy and evidence of the payment
of the premium therefor are not so delivered to Beneficiary, Beneficiary shall
have the right but without obligation so to do, without notice or demand upon
Trustor and without releasing Trustor from any obligation hereof, to obtain such
insurance, pay the premium therefor, and add the amount thereof to the
indebtedness secured hereby. Neither Trustee nor Beneficiary shall be
responsible for such insurance or for the collection of any insurance proceeds
or for the insolvency of any insurer or insurance underwriter. Any and all
unexpired insurance shall inure to the benefit and pass to the purchaser of said
property at any Trustee's sale held hereunder. Any part or all of the amount
collected under any such fire or other insurance policy may, at the option of
Beneficiary, be applied by Beneficiary upon any Indebtedness secured hereby and
in such order as Beneficiary may determine or, without reducing the indebtedness
secured hereby, used by Beneficiary to replace, restore or reconstruct the
property covered by this Deed of Trust to a condition satisfactory to
Beneficiary, or 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 such notice.
4. To appear in and defend, and Beneficiary or Trustee, or both, shall have
the right to appear in and defend, any action or proceeding purporting to affect
the security hereof, or the rights, powers, duties of liabilities of Beneficiary
or Trustee, or both, hereunder or the payment of any funds in the possession of
either Beneficiary or Trustee arising out of or in connection with this Deed of
Trust, and any action to which either Beneficiary or Trustee, or both, is made a
party by reason of its interest in said property and, in connection therewith,
Trustor shall pay all costs and expenses in any such action or proceeding and in
any action by Trustee or Beneficiary, or both, to foreclose this Deed of Trust
or to enforce any right of Trustee or Beneficiary hereunder, including, but not
limited to costs of evidence of title and reasonable attorney's fees incurred by
Trustee or Beneficiary, or both, in any such action or proceeding, whether or
not the same proceeds to judgment, and Beneficiary or Trustee shall have the
right, but shall not be obligated, to apply any funds of Trustor in the
possession of either Beneficiary or Trustee toward payment of said costs and
expenses.
5. To pay (a) at least ten (10) days before delinquency, all taxes and
assessments affecting said property, all assessments upon water company stock
and all rents, assessments and charges for water appurtenant to or used in
connection with said property; (b) when due, all encumbrances charges and liens,
with interest, on said property, or any part thereof, which appear or be prior
to superior thereto; and (c) all costs, fees and expenses of this Trust; and, if
and as required by Beneficiary, to pay to Beneficiary in equal monthly
installments sufficient funds (as estimated by Beneficiary from time to time) to
pay when due to next maturing taxes and assessments affecting said property and
premium for the insurance required by Beneficiary hereunder. When provided with
sufficient funds, Beneficiary shall pay such taxes, assessments and premiums
before delinquency. Any amount so paid to Beneficiary in excess of the amount
required for such purposes shall be held for future use for such purposes,
applied to any indebtedness secured hereby, with interest, or refunded to
Trustors at Beneficiary's option.
6. If Trustor fails to make any payment or do any act as herein provided,
Beneficiary or Trustee, but with out obligation so to do and with or without
notice to or demand upon Trustor without releasing Trustor from any obligation
hereof, may (a) make or do the same in such manner and to such extent as either
deems necessary to protect the security hereof, Beneficiary and Trustee being
authorized to enter upon said property for such purpose; (b) pay, purchase,
contest or compromise any encumbrance, charge, or lien which in the judgment of
either appears to be superior hereto; and (c) in exercising any such power,
incur and pay necessary expenses, including reasonable attorney's fees.
7. To pay immediately and without demand all sums expended hereunder by
Beneficiary or Trustee, with interest from date of expenditure at the Prime Rate
charged by Imperial Bank.
8. Any award of damages made in connection with the condemnation for public
use of or injury to said property or any part thereof is hereby assigned and
shall be paid to Beneficiary, who may apply or release any monies received by
it therefor in the same manner and with the same effect as above provided for
the disposition of proceeds of fire or other insurance, and Trustor will execute
such further assignment of any such award as Beneficiary or Trustee requires.
9. The acceptance by Beneficiary of any payment less than the amount then due
shall be deemed an acceptance on account only and shall not constitute a waiver
of the obligations of Trustor to pay the entire sum then due or of Beneficiary's
right either to require prompt payment of all sums then due or to declare a
default. The acceptance of payment of any sum secured hereby after its due date
will not waive the right of Beneficiary either to require prompt payment when
due of all other sums so secured or to declare a default for failure so to pay,
and no waiver of any default shall be a waiver of any preceding or suceeding
default of any kind.
10. Trustee or Beneficiary may enter upon and inspect said property at any
reasonable time, and Beneficiary shall have the right at any reasonable time to
inspect Trustor's books and records relating to said property. Trustor agrees to
furnish to Beneficiary such statements and other data relating to said property
as Beneficiary may from time to time request.
11. At any time or from time to time, without liability therefor and with or
without notice, upon written request of Beneficiary and presentation of this
Deed of Trust and said promissory note for endorsement, and without affecting
the liability of any person for payment of the indebtedness secured hereby, or
the effect of this Deed of Trust upon the remainder of said property for the
full amount of the indebtedness then or thereafter secured hereby, or the rights
or powers of Beneficiary or Trustee with respect to the remainder of said
property, Trustee may reconvey any part of said property, consent to the making
of any map or plot thereof, join in granting any easement thereon, or join in
any extension agreement, or any agreement subordinating the lien or charge
hereof.
12. Upon written request of Beneficiary stating that all sums secured hereby
have been paid, and upon surrender of this Deed of Trust and said promissory
note to Trustee for cancellation and retention and upon payment of its fees,
Trustee shall reconvey, without warranty, the property then held hereunder. The
recitals in such reconveyance of any matters or facts shall be conclusive proof
of the truthfulness thereof. The grantee in such reconveyance may be described
as "the person or persons legally entitled thereto". Five (5) years after
issuance of such full reconveyance. Trustee may destroy said promissory note
and this Deed of Trust. Such request and reconveyance shall operate as a
reassignment of the rents, issues and profits hereinabove assigned to Trustee.
13. If default is made in the payment indebtedness or in the performance of any
agreement secured hereby, Beneficiary, with or without notice to Trustor, may
declare all sums secured hereby immediately due and payable by instituting suit
for the recovery thereof or for the foreclosure of this Deed of Trust or by
delivering to Trustee a written declaration of default and demand for sale, and
written notice of default and election to cause said property to be sold, which
notice Trustee shall cause to be filed for record, if such declaration is
delivered in Trustee, Beneficiary shall also deposit with Trustee this Deed of
Trust, said promissory note and all documents evidencing expenditures secured
hereby.
14. After the time then required by law has elapsed after recordation of such
notice of default, and notice of sale having been given as then required by law.
Trustee, with or without demand on Trustor, shall sell said property at the
time and place fixed in the notice of sale, either as a whole or in separate
parcels and in such order as Trustee determines, 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 from time to time sale of all or any portion
of said property by public announcement at the time and place of sale originally
fixed or fixed at the last preceding postponed time. Trustee shall deliver to
the purchaser its deed conveying the property sold, but without any covenant or
warranty, express or implied. The recitals in such deed shall be conclusive
proof of the truthfulness thereof, Trustor, Trustee, Beneficiary, or any other
person may purchase at the sale.
15. After deducting all costs, fees and expenses of Trustee and of this trust,
including the cost of evidence of title and reasonable attorney's fees in
connection with such sale, Trustee shall apply the proceeds of the sale to
payment of: (a) all sums expended under the terms hereof and not theretofore
repaid, with interest from date of expenditure at the Prime Rate charged by
Imperial Bank, and, (b) all other sums then secured hereby in such order as
Beneficiary in the exercise of its sole discretion, directs. The remainder, if
any, shall be paid to the person or persons legally entitled thereto.
16. Before any such sale, Beneficiary may rescind the notice of default and of
election to cause said property to be sold by delivering to Trustee a written
notice of rescission, which notice, when recorded, shall cancel any prior
declaration of default, demand for sale and acceleration of maturity. The
exercise of such right of rescission shall not constitute a waiver of any
default then existing or subsequently occurring or impair the right of
Beneficiary to deliver to Trustee other declarations of default and demands for
sale or notices of default and of election to cause said property to be sold, or
otherwise effect any provision of said promissory note or of this Deed of Trust
or any of the rights or remedies of Beneficiary or Trustee hereunder.
Page 2 of 4
17. That as additional security, Trustor shall, upon request, give such further
written assignments of the rents, issues and profits of said property, the
lessor's interest in any or all leases and Trustor's interest in any or all
agreements, contracts, licenses and permits affecting said property and all
security for the performance of such leases as Beneficiary or Trustee requires,
such assignments to be made by instruments in form satisfactory to Beneficiary
to any lease, agreement, contract, license or permit so assigned, or to impose
upon Beneficiary any obligation with respect thereto.
18. Not to cancel any of the leases now or hereafter assigned to Beneficiary
pursuant to paragraph (17) above, or terminate or accept a surrender thereof, or
reduce the amount of rent thereunder, or modify any of said leases or accept any
prepayment of rent thereunder (except any amount, not exceeding two (2) month's
rent, which may be required to be prepaid by the terms of any such lease)
without first obtaining on each occasion, the written approval of Beneficiary.
19. To perform each and every obligation of the landlord under each of the
leases now or hereunder assigned to Beneficiary pursuant to paragraph (17)
above.
20. That as additional security, Trustor hereby transfers and assigns to
Beneficiary, effective upon any default in the payment of any indebtedness of
the performance of any agreement secured hereby, the rents, issues and profits
of said property, reserving to Trustor the right, prior to any such default, to
collect and retain such rents, issues and profits as but not before they become
due and payable. Said assignment to Beneficiary shall be prior and superior to
the assignment of said rents, issues and profits to Trustor hereinabove set
forth and, upon any such default, shall be absolute, not only as to amounts
accuring thereafter but also as to amounts then accrued and unpaid, and
Trustor's right to collect such rents, issues and profits shall thereupon cease.
In the event of default, Beneficiary may, at any time, with or without notice
and without regard to the adequacy of its security for the indebtedness secured
hereby, either in person or by an agent or by a receiver appointed by the court,
(a) enter upon and take possession of said property, or any part thereof, and
manage and control it in Beneficiary's discretion: and (b) with or without
taking possession, xxx or otherwise collect such rents, issues and profits,
whether past due or coming due thereafter, and apply the same, less costs and
expenses of operation and collection, including reasonable attorney's fees, upon
any obligation secured hereby and in such order as Beneficiary determines. None
of the aforesaid acts shall cure or waive any default or notice of default
hereunder or invalidate any acts done pursuant to any such notice. Beneficiary
shall not be required to act diligently in the care or management of the
property or in collecting any such rents, issues and profits, and shall be
accountable only for sums actually received.
21. If this Deed of Trust or any promissory note secured hereby provides for any
penalty for prepayment of any indebtedness secured hereby, Trustor agrees to pay
said penalty if any of said indebtedness is paid prior to the due date thereof
stated in said promissory note or this Deed of Trust even if and notwithstanding
Trustor shall have defaulted in payment thereof or in the performance of any
agreement secured hereby, and Beneficiary, by reason thereof, shall have
declared all sums secured hereby immediately due and payable. Trustor shall pay
Beneficiary for each and any Beneficiary's statement furnished at Trustor's
request the maximum fee allowed by law pursuant to Sections 2943 and 2954 of the
Civil Code of California and all amendments thereto, the provisions of which are
incorporated herein by reference and made a part hereof. Such fee shall be
computed as of the time such statement is furnished. Beneficiary may also charge
Trustor a reasonable fee for any other service rendered Trustor, or on Trustor's
behalf, in connection with this Deed of Trust, or the indebtedness secured
hereby including without limiting the generality of the foregoing, the delivery
to an escrow holder of a request for full or partial reconveyance of this Deed
of Trust, transmitting to an escrow holder any sums, payment of which is secured
hereby, changing its records pertaining to this Deed of Trust and the
indebtedness secured hereby to show a new owner of said property, and replacing
an existing policy of fire or other insurances held by Beneficiary hereunder
with another such policy. Any such charge shall be secured hereby and Trustor
agrees to pay the same, together with interest from the date of such charge at
the Prime Rate charged by Imperial Bank immediately and without demand.
22. To pay a late charge in the amount specified in said promissory note.
23. Without affecting the liability of Trustor or of any other party now or
hereafter bound by the terms hereof for any obligation secured hereby.
Beneficiary may, in such manner, upon such terms and at such times as it deems
best and without notice or demand, extend or change the time or manner for the
payment of any indebtedness or the performance of any agreement secured hereby,
increase or reduce the rate of interest on any such indebtedness, release any
person now or hereafter liable for the payment of any such indebtedness or the
performance of any such agreement, accept additional or substituted security
therefor and after, substitute, release or subordinate any such security.
24. No remedy hereby given to Beneficiary or to Trustee is exclusive of any
other remedy hereunder or under any present or future law.
25. If default is made in payment of any indebtedness or in the performance of
any agreement secured hereby and if any such indebtedness or agreement is
secured at any time by any other instrument or in any other way, Beneficiary
shall not be obligated to resort to any such security in any particular order,
or at all, and the exercise by Beneficiary of any right or remedy with respect
to any other security shall not be a waiver of or limitation upon the right of
Beneficiary to exercise, at any time or from time to time thereafter, any right
or remedy with respect to this Deed of Trust.
26. In the event the herein described property or any part thereof, or any
interest therein is sold, agreed to be sold, conveyed, transferred, disposed of,
further encumbered, or alienated by Trustor or by the operation of law or
otherwise without the written consent of Beneficiary first obtained, all
obligations secured by this instrument, irrespective of the maturity dates
expressed therein, at the option of the holder beneficiary, and without demand
or notice shall immediately become due and payable. Consent to one such
transaction shall not be deemed to be a waiver of the right to require such
consent to future or successive transactions.
27. In the event of the passage after the date of this Deed of Trust of any law
of the State of California deducting from the value of real property for the
purposes of taxation any lien thereon, or changing in any way the laws for the
taxation of Deeds of Trust or debts secured thereby for State or local purposes,
or the manner of the collection of any such taxes so as to effect this Deed of
Trust or said promissory note, Beneficiary, with or without notice to Trustor,
may declare all sums secured hereby immediately due and payable.
28. Beneficiary may, from time to time, by instrument in writing, substitute a
successor or successors to any trustee named herein or acting hereunder, which
instrument, when executed and acknowledged by Beneficiary and recorded in the
office of the recorder of the county or counties where said property is
situated, shall be conclusive proof of proper substitution of such successor
trustee or trustees, who shall, without conveyance from their predecessor
trustee, succeed to all its title, estate, rights, powers and duties hereunder.
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. If notice of default has been
recorded, this power of substitution cannot be exercised until after the costs,
fees and expenses of the then acting trustee have been paid to such trustee who
shall endorse receipt thereof upon such instrument of substitution. The
procedure herein provided for substitution of trustees shall be exclusive of all
other provisions for substitution, statutory or otherwise.
29. This Deed of Trust applies to, insures to the benefit of, and binds,
Trustor, Trustee and Beneficiary, their heirs, legatees, devisees,
administrators, executors, successors and assigns. The term Beneficiary means
IMPERIAL BANK as long as it continues to be the owner and holder of said
promissory note, and thereafter it means the owner and holder, including
pledges, of said promissory note, even though not named as Beneficiary herein.
In this Deed of Trust, whenever the context so requires the singular number
includes the plural, and all obligations of each Trustor are joint and several.
30. That Trustee accepts this trust when this Deed of Trust, duly executed and
acknowledged, is made a public record as provided by law. Trustee is not
obligated to notify any party hereto of any pending sale under any other deed of
trust or of any action or proceeding in which Trustor, Beneficiary or Trustee is
a party unless brought by Trustee.
--------------------------------------------------------------------------------
REQUEST FOR FULL RECONVEYANCE
To Be Used Only When Note Has Been Paid
A reconveyance will be issued upon presentation to Imperial Bancorp of
this request properly signed and accompanied by the reconveyance fee,
the Deed of Trust, the original note or notes secured by said Deed of
Trust and any receipt or document evidencing any other indebtedness
secured thereby.
To IMPERIAL BANCORP, Trustee Dated:___________________
The undersigned is the legal owner of the note or notes and of all other
indebtedness secured by the within Deed of Trust. Said note or notes,
together with all indebtedness secured by said Deed of Trust, have been
fully paid and satisfied and you are hereby requested and directed on
payment to you of any sums owing to you under the terms of said Deed of
Trust to cancel said note or notes and all other evidences of indebtedness
delivered to you herewith and said Deed of Trust and to reconvey without
warranty to the parties designated by the terms of said Deed of Trust all
the estate now held by you thereunder.
___________________________________
_________________________________ ____________________________________
_________________________________ ____________________________________
_________________________________ ____________________________________
___________________________________
Do not lose or destroy this Deed of Trust OR THE NOTE which it secures.
Both must be delivered to the Trustee for cancellation before
reconveyance will be made.
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Page 3 of 4
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR AGREED by the execution
and delivery of this Deed of Trust and the note secured hereby, that provision
(1) to (30), inclusive of the Fictitious Deed of Trust recorded in Los Angeles,
Riverside, San Francisco, Xxxxxx, Sonoma, Monterey, Contra Costa, San
Bernardino, San Diego, Ventura, Santa Xxxxx, Sacramento, Marin and Alameda
Countries February 29, 1980, and in Orango, San Mateo and Santa Xxxxxxx
Countries March 4, 1980, in the Book and the Page or as the document number of
Official Records in the office of the County Recorder of the County where said
property is located as set forth and noted below opposite the name of such
County. viz:
COUNTY COUNTY
Los Angeles Document 80-206967 San Bernardino Document 80-052391
Orange Book 13522 Page 522 San Diego Book 1980 Page 80-070516
Riverside Book 1980 Page 40216 Ventura Book 5605 Page 585
San Francisco Book C953 Page 000 Xxxxx Xxxxx F 168 Page 720
San Mateo Reel 7942 Image 117 Sacramento Book 8002-29 Page 3
Xxxxxx Book 1980 Page 15924 Santa Xxxxxxx Document 80-8831
Sonoma Document 80-11977 Marin Book 3684 Page 09
Monterey Reel 1392 Page 1128 Alameda Document 80- 036324
Contra Costa Book 9752 Page 332
(which provisions, identical in all counties, are printed on the reverse hereof)
hereby are adopted and incorporated herein and made a part hereof as fully as
though set forth herein at length; that Trustor will observe said provisions;
and that the references to property, obligations, and parties in said provisions
shall be construed to refer to the property, obligations, and parties set forth
in this Deed of Trust.
TRUSTOR REQUESTS that a copy of any notice of default and of any notice of sale
hereunder shall be mailed to Trustor at the address hereinabove set forth.
The following portions of provisions (1) to (30) of the Fictitious Deed of Trust
incorporated into this Deed of Trust are amended as follows:
a) In paragraphs 7, 15, and 21, wherever "Prime Rate charged by Imperial Bank"
appears, "Default Rate as charged by Imperial Bank as set forth in the
obligation secured hereby" is hereby substituted.
b) The first two full sentences in paragraph 20 are deleted in their entirety
and shall be replaced by the following provisions:
Trustor hereby absolutely and unconditionally assigns and transfers to
Beneficiary all the leases (including all security deposits, guarantees and
other security at any time given as security for the performance of the
obligations of the tenants thereunder), income, rents, issues, deposits, profits
and proceeds of the property to which Trustor may be entitled, whether now due,
past due or to become due, and hereby gives to and confers upon Beneficiary the
right, power and authority to collect such income, rents, issues, deposits,
profits and proceeds. This assignment of the leases, income, rents, issues,
deposits, profits and proceeds constitutes an irrevocable direction and
authorization of all tenants under the leases to pay all rent, income and
profits to Beneficiary upon demand and without further consent or other action
by Trustor. This is an absolute assignment, not an assignment for security only,
and Beneficiary's right to rents, issues and profits is not contingent on
Beneficiary's possession of all or any portion of the property. Trustor
irrevocably appoints Beneficiary its true and lawful attorney, at the option of
Beneficiary at any time, to demand, receive and enforce payment, to give
receipts, releases and satisfactions, and to xxx, either in the name of Trustor
or in the name of the Beneficiary, for all such income, rents, issues, deposits,
profits and proceeds and apply the same to the indebtedness secured hereby. It
is understood and agreed that neither the foregoing assignment of leases,
income, rents, issues, deposits, profits and proceeds to Beneficiary nor the
exercise by Beneficiary of any of its rights or remedies under this Section or
under any similar provision of the Deed of Trust shall be deemed to make
Beneficiary a "mortgages-in-possession" or otherwise obligated, responsible or
liable in any manner with respect to the property or the use, occupancy,
enjoyment or operation of all or any portion thereof. Notwithstanding anything
to the contrary contained herein or in the obligation secured hereby, so long as
no event which is, or with notice or passage of time or both would constitute,
an event of default shall have occurred, Trustor shall have a license to collect
all income, rents, issues, profits and proceeds from the property as trustee for
the benefit of Beneficary and Trustor and Trustor shall apply the funds so
collected first to the payment of the indebtedness secured hereby which are then
due and payable in such manner as Beneficiary elects and thereafter to the
account of Trustor. Upon the occurrence of such event, such license shall be
deemed revoked and any rents received thereafter by Trustor shall be held by
Trustor in trust for the benefit of Beneficiary and shall be delivered in kind
to Beneficiary immediately upon receipt thereof by Trustor. Upon the occurrence
of such event, Trustor agrees to deliver the original copies of all leases to
Beneficiary. Trustor hereby irrevocably constitutes and appoints Beneficiary its
true and lawful attorney-in-fact to enforce, in Trustor's name or in
Beneficiary's name or otherwise, all rights of Trustor in the instruments,
including without limitation, checks and money orders, tendered as payments of
rents and to do any and all things necessary and proper to carry out the
purposes hereof.
SIGNATURE OF TRUSTOR
MEGABIOS CORP.
--------------------------------
By /s/ Xxxxxxx Xxxxxxx
--------------------------------
/s/ Xxxxxxxx XxXxxx
--------------------------------
________________________________
SIGNATURES MUST BE ACKNOWLEDGED BEFORE A NOTARY PUBLIC
Page 4 of 4
Attachment to Deed of Trust
dtd. 8/15/95, consisting of one (1) page
MEGABIOS CORP.
Legal description
"EXHIBIT A'
PARCEL ONE: 000-000-000; 000-000-000
Lots 28, 29, 30, 3 1 and a portion of Lots 27 and 32, Block 3 as shown on the
Map entitled "EAST MILLSDALE INDUSTRIAL PARK UNIT NO.2, BURLINGAME, SAN MATEO
COUNTY, CALIFORNIA", filed in the Office of the County Recorder of San Mateo
County on August 3, 1959 in Book 52 of Maps at Pages 4, 5 and 6, and a portion
of Xxxx 00, 00, 00, 00, 00, 00, Xxxxx 3 as shown on the Map entitled "EAST
MILLSDALE INDUSTRIAL PARK UNIT NO.1, BURLINGAME, SAN MATEO COUNTY, CALIFORNIA",
filed in the Office of the County Recorder of San Mateo County on January
23,1959 in Book 50 of Maps at Pages 24 and 25, more particularly described as a
whole as follows:
BEGINNING: at the point of intersection of the Southwesterly line of said Lot 18
with the Southeasterly line of Mitten Road, as shown on last mentioned Map;
thence from said point of beginning along said Southwesterly line of Xxx 00,
Xxxxx 00 degrees 41' 25" East 305.00 feet to a point distant thereon North 50
degrees 41' 25" West 105.00 feet from the Southerly corner of said Lot 18;
thence leaving said Southwesterly line North 39 degrees 18' 35" East 363.00
feet; thence South 50 degrees 41' 25" East 105.00 feet to a point on common line
between said subdivisions above mentioned; thence along said common line South
39 degrees 18' 35" West 338.00 feet; thence South 50 degrees 41' 25" East 235.00
feet to the Northwesterly line of Xxxxxxx Road, as shown on the Map first above
mentioned; thence along said Xxxxxxxxxxxxx xxxx xx Xxxxxx Xxxx, Xxxxx 00 degrees
18' 35" East 315.00 feet to the Northeasterly line of said Lot 31: thence along
said Northeasterly line North 50 degrees 41' 25" West 175.00 feet; thence
leaving the last mentioned line North 39 degrees 18' 35" East 60.00 feet to the
Northeasterly line of Lot 32; thence along the last mentioned line North 50
degrees 41' 25" West 60.00 feet to the common line between said Lots 32 and 13;
thence along said common line South 39 degrees 18' 35" West 5.00 feet; thence
leaving the last mentioned line North 50 degrees 41' 25" West 410.00 feet to the
said Southeasterly line of Mitten Road; thence along the last mentioned line
South 39 degrees 18' 35" West 395.00 feet to the point of beginning.
