EXHIBIT 10.9
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RECORDING REQUESTED BY
Chicago Title Company
212645-MW
WHEN RECORDED MAIL TO Xxxxx Financial Group, Inc.
P.0. Box 2400 Walnut Creek CA 94595
Loan #50759
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DEED OF TRUST, SECURITY AGREEMENT
AND ASSIGNMENT OF LEASES AND RENTS
Dated December 20, 2001
Made and entered into by and between
INNOVATIVE MICRO TECHNOLOGY, INC., a Delaware corporation
having a mailing address at:
c/o Xxxx Xxxxxxxxx
00 Xxxxx Xxxx Xx., Xxxxxx, XX 00000
hereinafter referred to as "Trustor",
INVESTORS YIELD, INC., a California corporation
whose address is:
c/o Owens Financial Group, 0000 Xxxxxxx Xxxx., Xxxxxx Xxxxx, XX 00000
hereinafter referred to as "Trustee" and
XXXXX FINANCIAL GROUP, INC., a California Corporation,
whose address is: 0000 Xxxxxxx Xxxx., Xxxxxx Xxxxx, XX. 94595
hereinafter referred to as "Beneficiary",
WITNESSETH: That Trustor IRREVOCABLY GRANTS, BARGAINS, SELLS, CONVEYS,
TRANSFERS and ASSIGNS to TRUSTEE, IN TRUST, WITH POWER OF SALE, the
following property in the:
County of Santa Xxxxxxx, State of California described to wit:
SEE EXHIBIT 'A' ATTACHED FOR LEGAL DESCRIPTION
APN: 73-050-20-00-2
TOGETHER WITH all of the following which with the above described
property (sometimes hereinafter referred to as the "Premises") are (except where
the context otherwise requires) hereinafter collectively called the "Trust
Property":
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(a) All tenements, hereditaments, and appurtenances and all estate and
rights of Trustor in and to the premises and the reversion and reversions,
remainder and remainders thereof and thereto;
(b) All right, title and interest of Trustor in and to all streets,
roads and public places, opened or proposed, and all easements and rights of
way, public or private, now or hereafter used in connection with the premises;
(c) All water and water rights (whether riparian, appropriative or
otherwise, and whether or not appurtenant) in or hereinafter relating to or used
in connection with the premises;
(d) All buildings, improvements, fixtures, equipment, furniture,
furnishings, construction materials and all other articles of personal property
in which Trustor now has, or at any time hereafter acquires, an interest and
which now are, or at any time hereafter are, attached to or situated in, on or
about the premises or used in connection with or in the operation of the
premises, and all renewals, replacements and substitutions thereof and additions
thereto and proceeds thereof including, but not limited to, all heating,
cooling, air conditioning, filtration and plumbing equipment, light fixtures,
elevators and elevator equipment, all hot water heaters and water softeners, all
floor coverings, all stoves, ovens, refrigerators, freezers, all xxxxx, pumps,
pipes, motors, engines and pumping apparatus and equipment, which
specifically-described property Trustor represents are and shall be and are
intended to be a part of the real property;
(e) All of Trustor's accounts, accounts receivable, contract rights,
inventory, chattel paper and general intangibles relating to the construction,
use, operation or occupancy of the premises and which are now owned or are
hereafter owned or acquired by Trustor and/or in which Trustor now has, or at
any time hereafter acquires, an interest in, and all renewals, replacements and
substitutions thereof and additions thereto and all proceeds thereof;
(f) All of the Trustor's interest in all leases and rental agreements
now or hereafter existing on or pertaining to all or any part of the Premises,
and all of the rents, issues and profits of the property or arising from the use
of enjoyment of all or any portion thereof, and all security deposits arising
from the use or enjoyment of all or any portion of the Premises, and all utility
deposits made to procure and maintain utility services to the Premises or any
portion thereof;
(g) Any and all awards, payments or other amounts including interest
thereon, which may be made with respect to the Trust Property as a result of
injury to or decrease in the value of the Trust Property or as a result of the
exercise or threat of exercise of the power of eminent domain;
(h) Any licenses, contracts, permits and agreements now or hereafter
required or used in connection with the ownership, operation and maintenance of
the Premises, and the right to use any trade name, trademark or service mark now
or hereafter associated with the operation of any business of Trustor conducted
on the Premises and any grazing or range rights related to or pertaining to the
Premises;
(i) All of the rents, issues (including but not limited to crops) and
profits thereof; and
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(j) Any proceeds derived from the sale, transfer, hypothecation,
disposition, assignment, lease, or loss of any of the foregoing, to have and to
hold unto Trustee, its successors and assigns forever.
FOR THE PURPOSE OF SECURING: (1) payment of the sum of $5,400,000.00 Five
Million Four Hundred Thousand and 00/1 00 Dollars with interest thereon,
together with costs and attorney's fees, according to the terms of a promissory
note, or notes (hereinafter referred to in the singular as "Note"), of even date
herewith made by Trustor, payable to the order of Beneficiary, and all
extensions or renewals thereof; (2) performance of each covenant, promise and
agreement of Trustor contained herein or in any construction loan agreement
executed by Beneficiary as lender and Trustor as borrower, of even date herewith
(the "Loan Agreement"), if any, or incorporated herein by reference; (3) payment
of all sums required to be made by Trustor pursuant to the terms hereof; and (4)
payment of such additional sums as may be hereafter advanced by Beneficiary, its
successors and assigns, to Trustor, or any successor in interest of Trustor,
with interest thereon.
TO PROTECT THE PROPERTY AND SECURITY GRANTED BY THIS TRUST DEED, IT IS AGREED:
1. Title. Trustor warrants that it is seized of good and merchantable
fee simple title to the Trust Property, subject only to reservations in the
patent, water right application, obligations arising in favor of water use or
irrigation associations or companies (none of the assessments of which are
delinquent), easements and restrictions of record, and none other, unless
specifically set forth as follows: See attached Exhibit "B"
2. Payment and Performance. Trustor agrees to pay the Note referred to
above, including principal, interest, costs and attorney's fees, in accordance
with the terms of said Note, and to promptly and diligently comply with, observe
and perform all other obligations contained in the Note, this Deed of Trust, the
Loan Agreement and all other agreements and instruments executed in connection
therewith.
The promissory note secured by this Deed of Trust contains a
provision which provides that upon Trustor's failure to make any of the payments
required to be paid under the terms of the promissory note and/or Deed of Trust,
or in the event Beneficiary, or his agent, advances sums on behalf of the
Trustor to protect the security of this Deed of Trust, then said amounts shall
accrue additional interest at the rate of FIVE PERCENTAGE (5.00%) points above
the interest rate in effect under the promissory note at the time of such
delinquency or default.
The undersigned Trustor requests that a copy of any notice of
default and of any notice of sale hereunder be mailed to him at this mailing
address opposite his signature hereto.
3. Taxes and Other Charges. Trustor agrees to pay, before the same
becomes delinquent, all future taxes, assessments, water, sewer and other
charges levied or assessed upon or against the Trust Property, and in addition
all charges for gas, electricity and other items furnished to or charged against
the Trust Property.
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Trustor agrees to pay, prior to delinquency, any and all
ground rents and amounts payable under any lease, trust deed, mortgage or other
instrument which may be an encumbrance on the Trust Property. Trustor shall
exhibit to Beneficiary; upon request, receipt from the proper officers or
persons evidencing all such payments.
4. Insurance. Trustor agrees to keep the improvements now or hereafter
located on the Trust Property insured against loss by fire and other hazards and
casualties in such amounts and for such periods as may be required from time to
time by Beneficiary. Trustor agrees to pay the premiums on such insurance, when
due and prior to delinquency, and furnish proof of such payment to Beneficiary.
All insurance shall be carried in responsible insurance companies approved by
Beneficiary. The policies shall be held by Beneficiary and shall have, at all
times, loss payable clauses attached thereto in favor of Beneficiary as
mortgagee and approved by Beneficiary and shall have a provision giving
Beneficiary thirty (30) days prior written notice of cancellation or material
change.
In the event of any loss or damage to the improvements,
Trustor will give immediate notice by mail to Beneficiary and make proper proof
of loss (and if not made by Trustor, Beneficiary may make the same). Beneficiary
may require that the payment for such loss be paid directly to Beneficiary only
and not jointly to Trustor and Beneficiary. Beneficiary may, at its option,
apply the payment to the reduction of the indebtedness secured hereby or may
apply the same to the restoration or repair of the property damaged. Trustor
hereby assigns to Beneficiary all such policies and the payments to be made
thereunder.
In the event of foreclosure of this trust deed, or exercise of
the power of sale given to Trustee, or acquisition of the title to the property
by Beneficiary or its assigns, all right title and interest of Trustor in and to
the policies and proceeds thereof and sums payable thereunder shall forthwith
pass automatically to the purchaser of said property.
5. Condition of Improvements. Trustor agrees to keep the buildings and
other improvements on the property and other Trust Property at all times in good
condition and repair. All apparatus and machinery shall be kept in good working
order and properly serviced and repaired. If any of the Trust Property which
constitutes personalty becomes worn out or obsolete, it shall, unless otherwise
approved by Beneficiary, be replaced by comparable personalty which is new
and/or better suited to the proper operation of the premises and is reasonably
necessary to preserve and protect the value of such premises. Trustor will not
allow nor commit any waste, and will not demolish nor structurally alter any
buildings on the property, and will do no act to injure or depreciate the value
of such property. The property and buildings thereon shall be kept in a
reasonably clean, safe and sanitary condition and shall not be allowed to become
dilapidated or rundown.
Trustor agrees that it will not remove or allow to be removed
any fixture or fixtures from the Trust Property without the prior written
consent of Beneficiary. Trustor further agrees that in adding any new fixtures
or in substituting fixtures on the Trust Property, prior proof will be furnished
to Beneficiary that no security interest exists therein.
Trustor agrees to complete, restore and reconstruct in good
and workmanlike manner, to the condition required hereby, any building or
improvement which constitutes a part of the premises which may be damaged
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or destroyed; not to permit any lien of mechanics or materialsmen to attach to
the Trust Property or any portion thereof; to comply with all laws, ordinances,
regulations and governmental orders affecting the Trust Property or regarding
any alterations or improvements thereto; not to commit, suffer or permit any act
with respect to the Trust Property in violation of law or any covenants,
conditions or restrictions pertaining thereto. Any alteration, addition,
construction, reconstruction, improvement or major repair to be made upon the
premises shall be commenced and prosecuted with due diligence pursuant to plans
and specifications which have been approved by Beneficiary and in accordance
with all building codes and other regulations applicable thereto all pursuant to
the terms and conditions of the Loan Agreement.
6. Beneficiary's or Trustee's Actions. In the event Trustor fails to
make any payment required to be made by it hereunder or fails to perform any of
its other obligations hereunder or under any Loan Agreement or other loan
instruments, Beneficiary may, but shall not be obligated to, make any such
payment or perform any such obligation on behalf of Trustor (Trustor hereby
granting Beneficiary the right to go upon the premises for such purpose without
thereby becoming liable to Trustor or any person in possession thereof holding
by, through or under Trustor). All expenditures made by Beneficiary shall be
prima facie evidence of the necessity therefor and reasonableness thereof. Such
expenditures, together with all incidental costs of Beneficiary, including
reasonable attorney's fees if incurred, shall be immediately due and payable by
Trustor to Beneficiary, shall bear interest at a rate contracted for in the Note
(or if more than one note is secured hereby, then at the highest rate provided
in any note selected by Beneficiary) until paid and shall be secured by this
Trust Deed. Trustor hereby irrevocably constitutes and appoints Beneficiary, and
each of its officers, Trustor's attorney-in-fact, coupled with an interest for
the purpose of performing all acts on Trustor's behalf necessary to effectuate
the intent of this section, and authorizes and empowers Beneficiary, and each of
its authorized representatives and designees, to enter upon the Trust Property
or any part thereof for the purposes of inspection and of complying with,
observing and performing any rights of cure granted to Beneficiary in this Deed
of Trust. The aforesaid power of attorney shall survive the death or disability
of the principal, and Trustor hereby ratifies any and all acts which Beneficiary
(or any of its agents or officers) shall lawfully do or cause to be done by
virtue thereof. Nothing contained in this or any other Section hereof, however,
shall be construed as requiring Beneficiary to advance or expend monies, incur
any cost or expense or do any act for any purpose mentioned in such Sections or
for any other purposes whatsoever.
7. Right of Entry and Inspection. Trustee and Beneficiary and their
officers, employees, and agents may enter upon and inspect the Trust Property at
any reasonable time or times. Beneficiary shall have no obligation to inspect,
or liability to Trustor or third-parties for failing to inspect or for the
manner in which it inspects.
8. Actions Affecting Trust Property. Trustor agrees to appear in and
contest 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 costs of evidence of title and attorney's fees, in any such action or
proceeding in which Beneficiary or Trustee may appear.
9. Condemnation. The proceeds of any judgment, award or settlement in
any condemnation or eminent domain proceeding shall be paid to Beneficiary, who
may, at its option, either apply the proceeds to reduce the indebtedness secured
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hereby (whether matured or to mature in the future) or release such proceeds to
Trustor. Trustor hereby assigns and transfers to Beneficiary all such amounts
and proceeds and all rights to make claim for, and to adjust, settle, compromise
and collect any such awards or proceeds and agrees that Beneficiary may receive
the same on behalf of Trustor. All costs and expenses incurred by Beneficiary in
connection with the recovery of any such awards or proceeds shall be deducted
from such award or proceeds.
10. Security Agreement. This Deed of Trust shall constitute a security
agreement within the meaning of the Uniform Commercial Code as adopted in the
State of California ("UCC") as to any of the Trust Property covered and
encumbered by this Deed of Trust as to which the provisions may apply, and is
intended to create a security interest in such property in favor of Beneficiary.
This Deed of Trust shall be self-operative with respect to such property, but
Trustor agrees to execute and deliver on demand such security agreements,
financing statements and other instruments as Beneficiary may request in order
to impose or perfect the lien hereof more specifically upon any of such
property. Trustor also hereby irrevocably constitutes and appoints Beneficiary
(and any officer or agent thereof) as its true and lawful attorney-in-fact,
coupled with an interest, to execute and file on behalf of Trustor (and at
Trustor's expense) any and all financing statements (including, without
limitation, any original counterpart or carbon, photographic or other
reproduction of this Deed of Trust, any of which, Trustor hereby agrees, may
serve as a financing statement), and re-filings, continuations and terminations
thereof, which Beneficiary, in its sole determination, shall deem necessary or
prudent, in each case without the signature of Trustor thereon. The aforesaid
power of attorney shall survive the death or disability of the principal, and
Trustor hereby ratifies any and all acts which Beneficiary (or any of its agents
or officers) shall lawfully do or cause to be done by virtue thereof. If the
lien of this Deed of Trust on any property is now, or shall hereafter be,
subject to a prior security interest covering such property, by reason of a
purchase money security interest or otherwise, then in the event of any default
hereunder, all the right, title and interest of Trustor in and to any and all
deposits therein is hereby assigned to Beneficiary, together with the benefit of
any payments now or hereunder made thereon. The previous sentence shall not,
however, operate to authorize any such prior security interest. In the event
Trustor owns or acquired only a lessee's interest in any such property, then, in
addition to the foregoing requirements, before any of said property is placed
in, on or about the premises or improvements at any time situate thereon: (i)
the written approval of Beneficiary to the leasing agreements under which
Trustor owns or acquires such lessee's interest shall have first been obtained;
and (ii) the consent of the lessor of any such leasing agreements to such
security interest of Beneficiary, and all agreements of the lessor in favor of
Beneficiary deemed necessary by Beneficiary, shall first have been obtained to
the satisfaction of Beneficiary.
Trustor agrees that all property of every nature and
description, whether real or personal, covered by this Deed of Trust, together
with all property in which Beneficiary has a security interest by reason of a
separate agreement or instrument, are encumbered as one unit. Upon default by
Trustor under or with respect to any of the indebtedness secured hereby, or
under any other instrument executed in favor of Beneficiary to secure such
indebtedness, the security interest of Beneficiary may, at Beneficiary's option,
be foreclosed or sold in the same proceeding by Beneficiary or Trustee, and all
of the property (both realty and personalty) may, at Beneficiary's option, be
sold as such in one unit as a going business, or Beneficiary may elect to sell
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or cause the Trustee to sell the property which is realty (or which Beneficiary
elects to treat as realty) in one proceeding as above provided and the property
which consists of personal property in one or more separate proceedings and in
any manner now or hereafter permitted by the UCC. The giving of ten (10) days
prior written notice to Trustor by Trustee or Beneficiary of the time and place
for the sale or other disposition of any Trust Property which is not real
property, shall constitute reasonable notice to Trustor. Upon request of
Beneficiary, Trustor shall assemble and make the Trust Property available to
Beneficiary at the premises herein described. Failure to produce any item of the
Trust Property for five (5) days after demand to inspect the same has been given
to Trustor by Beneficiary and/or Trustee shall constitute a default hereunder.
No Trust Property shall be removed from the premises above described without the
prior written consent of Beneficiary. Trustor hereby expressly waives any right
which it may have to direct the order in which any of the Trust Property shall
be sold. The filing or recording of any financing statement relating to any
property or rights or interests generally or specifically described herein shall
not be construed to diminish or alter any of the Beneficiary's rights or
priorities hereunder.
11. Assignment and Collection of Rents. Trustor hereby absolutely and
presently assigns and transfers to Beneficiary all of Trustor's right, title and
interest in and to all leases, rents, issues and profits or income from the
Trust Property (collectively, the "rents") and each and every part thereof,
including all present and future leases or rental agreements. This assignment
may be enforced by Beneficiary without regard to the adequacy of the security
hereof or the solvency of Trustor by any one or more of the following methods:
(1) appointment of a receiver; (2) Beneficiary taking possession of the Trust
Property; (3) Beneficiary collecting any moneys payable under leases or rental
agreements directly from the parties obligated for payment; (4) injunction; or
(5) any other method permitted by law.
Unless and until Beneficiary shall elect to collect said rents
Trustor shall have a revocable license, subject to the provisions hereof, to
collect and receive the rents. Upon the occurrence of a default hereunder,
however, Beneficiary may, at its option, elect to terminate such license without
regard to the adequacy of the security hereunder, the value of the Trust
Property, the solvency of Trustor or any showing of fraud or mismanagement on
Trustor's part, and without further notice to or demand upon Trustor, and either
in person, by agent or by a receiver, and in its own or in Trustor's name, enter
upon and take possession of all or any part of the Trust Property, exclude
Trustor and its agents therefrom, hold, store, use, operate, manage and control
the Trust Property and protect its security as it sees fit, make, enforce, and,
if the same be subject to modification or cancellation, modify or cancel leases
upon such terms or conditions as Beneficiary deems proper, obtain and evict
tenants, fix or modify rents, contract for and make repairs and alterations, sue
for or otherwise collect and receive the rents (including, without limitation,
those past due and unpaid) therefrom, and apply the same, after first deducting
therefrom the costs and expenses of operation and collection (including, without
limitation, attorney's fees and disbursements), against the indebtedness in such
priority and proportions as Beneficiary, in its sole discretion, shall deem
proper. Trustor hereby irrevocably authorizes and directs all tenants to pay the
rents directly to Beneficiary upon receipt of written notice from Beneficiary
asserting the existence of a default hereunder, and Trustor hereby relieves all
`tenants from any liability to Trustor by reason of the payment of the rents to
Beneficiary.
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Any rents received by Beneficiary shall be applied to the cost
of collection, second to any expenses Beneficiary may expend in making the
property ready for or satisfactory to any lessee or tenant, and the remainder
shall be applied on the indebtedness secured hereby (whether matured or
unmatured) as Beneficiary may elect. Rents received by Beneficiary may be
applied by Beneficiary in any manner and in any priority it deems advisable and
such receipt shall not constitute a waiver of any right or claim of Beneficiary
nor cure any default hereunder.
Trustor shall not receive or collect more than one (1) months'
rents in advance, and Trustor agrees not to default in performing its
obligations under any leases on the property. Without the prior written consent
of Beneficiary, Trustor shall neither do nor omit to do anything, nor allow
anything to be done or to be omitted to be done, which might impair any of
Beneficiary's rights or interests with respect to the rents and leases,
including, without limitation, granting any concessions or abatements of rent,
canceling or accepting a surrender of any lease, allowing any lease to be
assigned or the space demised thereunder sublet, further assigning or pledging
or granting a security interest in any rents or leases, suffering any waiver or
release of the landlord's rights or committing any landlord's default.
Neither Trustee nor Beneficiary shall be obligated to perform
or discharge any obligation, duty or liability under any of the leases, or by
reason of the foregoing assignment, and Trustor shall and does hereby agree to
indemnify and hold Trustee and Beneficiary harmless from any liability, loss or
damage which they may incur under any lease or under or by reason of the
foregoing assignment and from any claims and demands which may be asserted
against them or either of them by reason of any alleged obligation or
undertaking on Trustee's or Beneficiary's part to perform or discharge any of
the terms, covenants or agreements contained in the leases.
Trustor specifically understands and agrees that neither the
assignment to Beneficiary of the rents and leases, nor the exercise by
Beneficiary of any of its rights or remedies under this section, shall be deemed
to make Beneficiary a "mortgagee-in-possession" or otherwise responsible or
liable in any manner with respect to the Trust Property, or the use, occupancy,
enjoyment or operation of all or any portion thereof, unless and until
Beneficiary, in person or by agent, assumes actual possession thereof. Nor shall
any appointment of a receiver for the Trust Property by any Court, either at the
request of Beneficiary or by agreement with Trustor, or the entering into
possession of the Trust Property or any part thereof by such receiver, be deemed
to make Beneficiary a "mortgagee-in-possession" or otherwise responsible or
liable in any manner with respect to the Trust Property or the use, occupancy,
enjoyment or operation of all or any portion thereof.
12. Hazardous Materials. For the purposes of this Deed of Trust,
Trustor, Beneficiary and Trustee agree that, unless the context otherwise
specifies or requires, the following terms shall have the meanings herein
specified:
(A) "Environmental Law" shall mean any Law concerning
environmental quality, health or safety and/or the protection of, or regulation
of the discharge of Hazardous Materials into, the air, ground or water.
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(B) "Hazardous Materials" shall mean radon, urea
formaldehyde, asbestos, polychorinated biphenyls, petroleum and petroleum-based
products underground storage tanks and all other pollutants and/or explosive,
flammable, radioactive, dangerous, hazardous or toxic chemicals, materials,
waste or substances defined as such in any Environmental Law or which by any
Environmental Law require special handling or notification to any Governmental
Authority in connection with their manufacture, use, collection, storage,
treatment or. disposal.
(C) "Hazardous Materials Contamination" shall mean the
dumping, placement, storage, discharge, release, seepage, emission, leakage,
use, manufacture, generation or existence of Hazardous Materials into, from,
under, above, around, at, in or onto the Trust Property; or the contamination of
the Trust Property, any other property or any buildings, facilities, soil,
groundwater, air or other elements under, above, around, at, in or on the Trust
Property or any other property as a result of Hazardous Materials at any time
(whether before or after the date of this Deed of Trust) emanating from or under
the Trust Property.
(a) Trustor's Representations and Warranties. Trustor hereby
represents and warrants that it shall not cause or permit and, to the best of
its knowledge (after due inquiry), except as disclosed by Trustor to Beneficiary
in the Environmental Disclosure form relating to the premises or in any
environmental or soil reports, no other person has caused, suffered or permitted
any Hazardous Materials to be dumped, placed, stored, held, located, used,
manufactured, generated, leaked, discharged, released, seeped, emitted or
disposed of into, from, on, under, above, around, in or at the Trust Property or
any part thereof, and that no part of the Trust Property will be or, to the best
of its knowledge (after due inquiry), has been used for the disposal, storage,
treatment, processing, manufacturing, generation or other handling of Hazardous
Materials.
(b) Trustor's Covenants. Trustor agrees to: (i) give notice to
Beneficiary immediately upon Trustor's acquiring knowledge of the use, presence
or storage or alleged use, presence or storage of any Hazardous Materials at,
under, above, around, in or on the Trust Property or of any Hazardous Materials
Contamination, with a full description thereof and copies of all materials
relating to the manner in which it acquired such knowledge; (ii) promptly
comply. with all Environmental Laws requiring the removal, treatment or disposal
of such Hazardous Materials or Hazardous Materials Contamination and provide
Beneficiary with satisfactory evidence of such compliance; and (iii) deliver to
Beneficiary, within thirty (30) days after demand by Beneficiary, a bond, letter
of credit or similar financial assurance evidencing to Beneficiary's
satisfaction that sufficient funds are available to pay the cost of removing,
treating and disposing of such Hazardous Materials or Hazardous Materials
Contamination and discharging any assessments which may be established on the
Trust Property as a result thereof.
(c) Superfund Lien. Trustor shall not cause or suffer any liens to be
recorded against the Property as a consequence of, or in any way related to, the
presence, remediation or disposal of Hazardous Material in or about the
Property, including any state, federal or local so-called "Superfund" lien
relating to such matters.
(d) Trustor's Liabilities/Indemnity. Trustor shall at all times assume
any and all liabilities arising from the presence, handling, treatment, storage,
transportation, removal or disposal of Hazardous Material on or in the Trust
Property. Regardless of whether any event of default shall have occurred and be
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continuing or any remedies in respect of the Trust Property are exercised by
Beneficiary, Trustor shall defend, indemnify and hold harmless Beneficiary and
Trustee from and against any and all liabilities (including strict liability),
suits, actions, claims, demands, penalties, damages (including, without
limitation, lost profits, consequential damages, interest, penalties, fines and
monetary sanctions), losses, costs or expenses (including, without limitation,
consultants' fees, investigation and laboratory fees, reasonable attorneys' fees
and remedial costs) (the foregoing are hereinafter collectively referred to as
"Liabilities") which may now or in the future (whether before or after the
culmination of the transactions contemplated by the Loan Agreement) be incurred
or suffered by Beneficiary or Trustee by reason of, resulting from, in
connection with, or arising in any manner whatsoever out of the breach of any
warranty or covenant or the inaccuracy of any representation of Trustor
contained or referred to in this section of this Deed of Trust or which may be
asserted as a direct or indirect result of the presence on or under, or escape,
seepage, leakage, spillage, discharge, emission or release from the Property of
any Hazardous Materials or any Hazardous Materials Contamination or arise out of
or result from the environmental condition of the Trust Property or the
applicability of any Governmental requirements relating to Hazardous Materials,
whether or not occasioned wholly or in part by any condition, accident or event
caused by any act or omission of Trustor or Beneficiary.
Such Liabilities shall include, without limitation: (i) injury
or death to any person; (ii) damage to or loss of the use of any property; (iii)
the cost of any demolition and rebuilding of the improvements, repair or
remediation and the preparation of any activity required by any Governmental
authority; (iv) any lawsuit or proceeding brought or threatened, good faith
settlement reached, or governmental order relating to the presence, disposal,
release or threatened release of any Hazardous Material on, from or under the
Trust Property; and (v) the imposition of any lien on the Trust Property arising
from the activity of Borrower or Xxxxxxxx's predecessors in interest on the
premises or from the existence of Hazardous Materials or Hazardous Materials
Contamination upon the Trust Property.
(e) Reassignment or Reconveyance. Beneficiary shall have the right, but
without any obligation, to reassign or reconvey the Premises to Trustor, in the
event that Beneficiary shall, at any time, determine that Hazardous Materials
are located in, on or under the Trust Property or any part thereof or in the
event that the Trust Property or any part thereof is affected by Hazardous
Materials Contamination or subject to the lien or claim of lien of any
governmental or quasi-governmental unit, body or agency or any third party for
clean-up costs or other costs pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, or any other
similar statute, law, rule or regulation of any governmental or
quasi-governmental unit, body or agency. This provision shall survive
Beneficiary's acquisition of the Trust Property pursuant to a Trustee's sale
hereunder, foreclosure hereunder or otherwise. This subparagraph (e) is for the
sole benefit of Beneficiary or an assignee of Beneficiary's entire interest
under this Deed of Trust or participating lenders in the loan evidenced by the
Note which this Deed of Trust secures and shall not be for the benefit of any
other person or entity.
(f) Survival. The covenants and agreements contained in this section
shall survive the consummation of the transactions contemplated by this Deed of
Trust and payment and reconveyance or foreclosure of this Deed of Trust.
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13. Time of Essence. Time is of the essence of this Trust Deed and each
and every provision thereof. No failure on the part of Beneficiary to exercise
any of its rights hereunder shall be construed as a waiver of or prejudice to
its rights in the event of any other subsequent default or breach. No delay on
the part of Beneficiary in exercising any of its rights hereunder shall preclude
it from the exercise thereof at any time during the continuance of any such
default. The acceptance of late payments shall not waive the "time is of the
essence" provision and shall not waive Beneficiary's right to declare default
for failure to pay. All rights and remedies of Beneficiary are cumulative and
concurrent, and may be exercised singly, severally or concurrently as
Beneficiary may elect.
14. Default. In the event of any default by Trustor in the payment of
the indebtedness secured hereby which remains uncured for ten (10) days
following written notice thereof; or in the event of any default of Trustor in
performing any of its obligations hereunder or any non-monetary obligations
under the Loan Agreement or other document executed by Trustor and held by
Beneficiary which (subject to Section 24 hereof) remains uncured for twenty (20)
days following written notice thereof; or in the event Trustor, or any guarantor
or surety (and, if this Trust Deed secures a construction loan, then Trustor's
contractor) shall be adjudicated insolvent or bankrupt, or any proceedings are
filed by or against them or any of them in the nature of bankruptcy or
reorganization or arrangement with creditors which are not dismissed within
thirty (30) days of commencement; or in the event any proceeding is filed to
foreclosure or any Notice of Trustee's Sale is recorded on any other lien on the
Trust Property (whether junior or senior to this Trust Deed); or in the event
any Writ of Attachment or Execution or any similar process shall be filed or
levied against the Trust Property which is not discharged within thirty (30)
days; or if Trustor shall permit or suffer another party or governmental entity
to acquire possession of, any interest in or any lien upon any of the Trust
Property which is inconsistent with Beneficiary's rights hereunder or the
provisions hereof, except by eminent domain; or in the event Trustor abandons
the Trust Property or leaves the same unattended or unprotected; or in the event
Beneficiary shall deem the security provided by this Trust Deed inadequate or in
danger of being impaired or diminished from any cause whatsoever (any of such
events being an event of default hereunder); then and in any such event
Beneficiary may declare the entire debt and all indebtedness of Trustor to
Beneficiary to be immediately due and payable without notice to Trustor.
Beneficiary may thereupon, at is option, and without prior notice and without
affecting the lien of this Trust Deed, do any one or more of the following:
enter upon the premises and inspect, repair, improve and maintain the same, rent
or lease the premises or portions thereof as Beneficiary shall see fit, and
perform such other acts thereon as Beneficiary may deem necessary or advisable;
sue for all or part of the indebtedness owing from Trustor to Beneficiary
without affecting or without losing the security of this Trust Deed; foreclose
this Trust Deed as a mortgage in the manner provided by law; cause the exercise
of the power of sale granted herein; bring an action for damages; or exercise
such other remedies or combination of remedies Beneficiary may have under this
Deed of Trust, the Loan Agreement or any other agreement or instrument, or at
law or in equity.
15. Release. Upon payment in full of all sums secured hereby and
performance of all obligations of Trustor hereunder, the lien of this Trust Deed
upon the Trust Property shall be released by a Deed of Reconveyance, which said
reconveyance shall be without warranty and shall operate to reconvey the estate
vested in trustee hereby. If reconveyance by Deed of Reconveyance is to be made
by Trustee, Beneficiary shall deliver the original of this Trust Deed and the
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Note secured hereby to Trustee with a request for reconveyance by Xxxx of
Release. If Trustee shall perform any such acts or execute complete or partial
reconveyances, it shall be paid a fee in accordance with its established fees
and charges therefor.
The Grantee in any Deed of Release executed pursuant to this
Trust Deed may be described as "the person or persons legally entitled thereto,"
and the recitals therein of any matters or facts shall be conclusive proof of
the truthfulness thereof.
16. Beneficiary's Powers. Beneficiary may, at any time, without notice,
release any person liable for payment of any indebtedness secured hereby,
release portions of the Trust Property from this Trust Deed, or extend or modify
the time for payment or other terms of the indebtedness secured hereby or grant
other indulgences, and any such release, extension, modification or other
actions shall not affect the personal liability of any person for the payment of
said indebtedness or the lien of this Trust Deed upon the remaining portion of
said property.
At any time, without liability therefor and without notice,
and without affecting the personal liability of trustor or any other person for
payment of the indebtedness secured hereby, Trustee may, with the consent of
Beneficiary: (1) release and reconvey by Deed of Reconveyance any part of the
Trust Property from the lien hereof; (2) consent to the making and recording of
any maps or plats of the Trust Property; (3) join in granting any easement on
the Trust Property; or (4) join in any extension agreement or any agreement
subordinating or modifying the lien of charge hereof. If Trustee shall perform
any such acts or execute complete or partial reconveyances it shall be paid a
fee in accordance with its established fees and charges therefor.
17. Foreclosure. In the event of default hereunder, Beneficiary, if it
desires Trustee to exercise the power of sale granted hereby, shall execute and
deliver to Trustee a written declaration of default and demand for sale and
shall surrender to Trustee this Trust Deed, the Note secured hereby and all
documents evidencing any expenditures hereunder, together with such other
documents as trustee may require. Beneficiary shall also execute and deliver to
Trustee all notices to Trustor that must be signed by Beneficiary. Upon receipt
thereof, Trustee shall give notice and sell the Trust Property as provided by
law. Trustee may postpone the sale as provided by law. After sale of the Trust
Property, Trustee shall deliver its deed to the purchaser conveying the property
so sold but without any covenant or warranty, express or implied. The recital in
any such deed of any matters or facts, stated either specifically or in general
terms, or as conclusions of law or facts, shall be conclusive proof of the
truthfulness thereof.
If the Beneficiary shall be the purchaser at the sale, all or
any portion of the amounts due to Beneficiary hereunder or under the Note
secured hereby may be, applied in payment of all or any portion of the purchase
price.
In the event of default hereunder, at any time before the
Trust Property has been legally sold pursuant to the power of sale granted
hereby, this Trust Deed may be foreclosed in the manner provided by law for the
foreclosure of mortgages on real property.
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18. Cancellation/Reinstatement. Beneficiary may, at any time, request
cancellation of Trustee's Notice of Sale, whereupon Trustee shall execute and
record, or cause to be recorded, a Cancellation of Notice of Sale in the same
county in which the Notice of Sale was recorded. The exercise by Beneficiary of
this right shall not constitute a waiver of any default then existing or
subsequently occurring.
In the event this Trust Deed and the indebtedness and
obligations secured hereby are reinstated in the manner provided by law,
Beneficiary shall forthwith notify Trustee thereof as provided by law. Upon such
notification, Trustee shall record, or cause to be recorded, a Cancellation of
Notice of Sale in the same county in which the Notice of Sale was recorded
within the period then required by law.
19. Receiver. In the event of default hereunder, Beneficiary shall be
entitled to the appointment of a Receiver to take charge of the property,
collect the rents, issues and profits therefrom, care for and repair the same,
improve the same when necessary or desirable, lease and rent the property or
portions thereof (including leases existing beyond the term of receivership),
and otherwise use and utilize the property, and to have such other duties as may
be fixed by the court.
Trustor specifically agrees that the Receiver may be appointed
without any notice to Trustor whatsoever, and the court may appoint a Receiver
without reference to the adequacy or inadequacy of the security, or the solvency
or insolvency of Trustor, and without reference to other matters normally taken
into account by courts in the discretionary appointment of Receivers, it being
the intention of Trustor to hereby authorize the appointment of a Receiver when
Trustor is in default and Beneficiary has requested the appointment of a
Receiver. Trustor xxxxxx agrees and consents to the appointment of the
particular person or firm (including an officer or employee of Beneficiary)
designated by Beneficiary as Receiver and hereby waives its rights to suggest or
nominate any person or firm as Receiver in opposition to that designated by
Beneficiary.
20. Substitute Trustee. Beneficiary may substitute another Trustee in
the place of the Trustee herein named to exercise the rights, powers and duties
granted by law and contained herein. Upon such appointment, and without the
necessity of a conveyance to the successor Trustee, the latter shall be vested
with all the title, powers and duties conferred upon the Trustee herein named.
21. Leases. Beneficiary or any purchaser at Trustee's sale or at any
foreclosure sale may, if it so elects, be subrogated to and succeed to all the
rights of Trustor under any or all leases on the property or portions thereof
Beneficiary may, if it so elects, subordinate its rights hereunder to any lease
on the property, or a portion thereof, and keep the lease in effect through and
after any foreclosure action or Trustee's sale.
22. Subrogation. Beneficiary shall be subrogated to the lien,
notwithstanding its release of record, of any prior mortgage, trust deed or
other encumbrance paid or discharged from the proceeds of the Note secured
hereby, or from any advance made by Beneficiary.
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23. Changes in Tax Laws. In the event of the passage after the date of
this Trust Deed of any law levying any tax upon this Trust Deed or the debt
secured hereby, which Beneficiary is obliged to pay, then Trustor agrees to pay
said tax or reimburse Beneficiary for the payment of the same, provided that
Trustor shall not be obligated to pay any amount which would be considered as
interest at a rate higher than that allowed by law, and provided further that in
the event of the enactment of any such law Beneficiary shall have the right, at
its option, to declare the indebtedness secured hereby to be immediately due and
payable.
24. Due on Sale or Encumbrance. Trustor shall not, without obtaining
Beneficiary's prior written consent (which consent may be given or withheld in
Beneficiary's sole and absolute discretion (and, if given, under such terms and
conditions as Beneficiary, in its sole and absolute discretion, may deem
appropriate under the circumstances then existing), grant, convey, sell,
exchange, assign, lease, encumber, option, grant a right of first refusal,
contribute to a partnership, joint venture, corporation or other legal entity or
otherwise transfer or dispose of (whether directly or indirectly and whether
voluntarily, involuntarily or by operation of law) the Trust Property or any
part thereof or any interest therein, or enter into any agreement or make any
arrangement to do any of the foregoing (individually or collectively, a
"Transfer"). Any Transfer attempted or undertaken in violation of the provisions
of this section shall, at Beneficiary's option, be null and void and of no force
and effect whatsoever, and the same also shall constitute a default hereunder
(without any requirement of notice or opportunity to cure) entitling
Beneficiary, at its option, to avail itself of any and all rights, powers and
remedies provided therefor in this Deed of Trust, or under the Note or under any
other instrument relating thereto, or at Law or in equity. Consent to any
particular Transfer shall not be deemed to be consent to any further or other
Transfer. Whether or not Beneficiary has consented to any Transfer, Beneficiary
may deal with Trustor's successor-in-interest (with respect to this Deed of
Trust and the indebtedness secured hereby) in the same manner as with the
Trustor herein named without in any way vitiating or discharging Trustor's
liability hereunder or for the indebtedness. Beneficiary may condition its
consent to any Transfer upon receipt of fees and/or modifications to the terms
of the indebtedness (including, without limitation, changes to the rate of
interest, maturity date and size and manner of repayment), to the extent
permitted by law. All Transfers consented to hereunder shall be evidenced by a
written instrument, duly and properly executed and acknowledged by each of the
parties thereto and, if requested by Beneficiary, in form suitable for
recording. No Transfer, whether or not undertaken in violation of this section,
shall release Trustor from any of its obligations under this Deed of Trust or
the Note, the Loan Agreement, or any other security document or reduce or
diminish the same in any way.
25. Legal Actions. Trustee may, but shall be under no obligation or
duty to, appear in or defend any action or proceeding purporting to affect the
security hereof or the rights or powers of Beneficiary or Trustee. If Trustee
shall take such action at the request of Beneficiary, it shall be paid therefor
in accordance with its established fees and charges and shall be reimbursed for
its costs and expenses actually incurred, including attorney's fees.
26. Miscellaneous. The Trust created hereby is irrevocable by Trustor.
Trustee accepts this Trust when this Trust Deed, duly executed and acknowledged,
is made a public record as provided by law, but acceptance is not required as a
condition to the validity hereof, and this Trust Deed is effective upon
delivery. Trustee shall not be obligated to notify any party hereto of pending
sale under any other Trust Deed, or of any action or proceeding in which
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Trustor, Beneficiary or Trustee shall be a party, except as required by law, and
Trustor waives any requirements of presentment, demand for payment, notice of
nonpayment or late payment, protest, notice of protest, notice of dishonor and
all other similar formalities. Trustor further waives all right Trustor might
otherwise have to require Trustee and/or Beneficiary to proceed against or
exhaust the assets encumbered hereby or by any other security instrument
securing any of the indebtedness due Beneficiary, or to pursue any other remedy
available to Beneficiary in any particular manner or order, and Trustor agrees
that Trustee and/or Beneficiary may proceed against any security in such manner
and order as Beneficiary in its sole discretion may determine. No remedy herein
conferred upon or reserved to Trustee or Beneficiary is intended to be exclusive
of any other remedy herein or by law provided or permitted, but each shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute. Every power or remedy
given hereunder and by any of the loan instruments to Trustee or Beneficiary or
to which either of them may be otherwise entitled, may be exercised,
concurrently or independently, from time to time and as often as may be deemed
expedient by Trustee or Beneficiary and either of them may pursue inconsistent
remedies.
27. No Merger or Extinguishment. It is the express intention and
agreement of the parties that, if Beneficiary shall at any time hereafter
acquire title to or any interest in all or any portion of the Trust Property,
including but not Limited to any interest pursuant to an option agreement or
purchase contract, then, until all of the indebtedness secured hereby shall have
been paid in full, (a) the interests of Beneficiary hereunder and the lien of
this Deed of Trust shall not be extinguished or merge or become merged in or
with the estate or interests of Beneficiary as holder and owner of title to or
any interest in all or any portion of the Trust Property, regardless of how such
title was acquired (including, but not limited to, by foreclosure or trustee's
sale of a lien or encumbrance prior or subordinate to the lien of this Deed of
Trust), (b) if Beneficiary is also the owner at that time of a leasehold estate
in the Trust Property, the leasehold estate of Beneficiary in the Trust Property
shall not be extinguished or merge or become merged in or with the estate or
interests of Beneficiary as holder and owner of fee title to the Trust Property
and (c) until payment in full of all of the indebtedness secured hereby, the
various estates and interests of Beneficiary in the Trust Property, the lien of
this Deed of Trust and the interests of Beneficiary hereunder shall continue in
full force and effect to the same extent as if Beneficiary had not acquired
title to or such other interest in the Trust Property, and the indebtedness
secured hereby shall not be deemed extinguished, satisfied or discharged.
28. Terminology. The word "Trustor" and the language of this instrument
shall, where there is more than one Trustor, be construed as plural and be
binding equally on Trustors. The obligations of Trustors hereunder and under the
Note secured hereby shall be joint and several. This Trust Deed applies to, is
binding upon, and inures to the benefit of all parties hereto, their heirs,
executors, administrators, successors and assigns. The term "Beneficiary" shall
include not only the original Beneficiary hereunder, but also any future owner
and holder of the note secured hereby.
29. Severability. If any provision hereof should be held unenforceable
or invalid, in whole or in part, then such unenforceable or void provision or
part shall be deemed severable from the remaining provisions hereof and shall in
no way affect the validity of this Trust Deed.
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30. Relationship of Parties. Nothing contained in this Deed of Trust
shall be construed as creating a partnership, joint venture, principal-agent or
other type of relationship between Trustor and Beneficiary (other than that of
borrower-lender) or cause Beneficiary to be responsible in any way for the debts
or obligations of Trustor.
31. Interest Rate. Notwithstanding any provisions herein, or in the
Note secured hereby, or in any related agreement between Trustor and
Beneficiary, the total liability of Trustor for payments in the nature of
interest shall not exceed the limits now imposed by the laws of the State of
California. Trustor agrees that all costs, fees, taxes, expenses, charges,
goods, compensating balance requirements, things in action or any other sums of
money or things of value (collectively the "Additional Sums") paid by or
contracted to be paid by Trustor to or for the benefit of Beneficiary, or
received directly or indirectly by Beneficiary, whether pursuant to the Note or
the Deed of Trust or otherwise with respect to this transaction or indebtedness
evidenced by the Note, or with respect to the security therefor, which, under
the law of the State of California may be deemed to be interest with respect to
such indebtedness, shall, for the purpose of any laws of the State of California
which may limit the maximum rate of interest to be charged with respect to such
indebtedness, be payable by Trustor as, and shall be deemed to be, additional
interest, and for such purposes the agreed upon and contracted rate of interest
described in the Note secured hereby shall be deemed to be increased by the
Additional Sums.
32. Notices. Trustor requests that a copy of any Notice of Sale
hereunder be mailed to him at his mailing address set forth below. Any notices
required to be given to Trustor by mailing shall be effective and complete when
mailed and shall be mailed to the address set forth below. Lack of receipt
thereof shall in no way invalidate the notice or any sale by Trustee hereunder.
If Trustor desires to change the address to which notices shall be mailed, such
change shall be accomplished by a request as provided by law.
33. Trustee's Fees and Charges. Trustee shall be paid for all acts
performed by it hereunder or in connection herewith in accordance with its
established fees and charges. All such fees and charges shall be paid by
Trustor, and if Beneficiary shall advance any such fees or charges, Trustor
shall reimburse Beneficiary for same on demand, Payment thereof is secured by
this Trust Deed.
34. Defects in Documents. Trustor will, upon request of Beneficiary,
promptly correct any defect, error or omission which may be discovered in the
contents of this Trust Deed or in the execution or acknowledgment hereof, and
will execute, acknowledge and deliver such further instruments and do such
further acts as may be necessary or as may be reasonably requested by
Beneficiary; to carry out more effectively the purposes of this Trust Deed; to
subject to the lien and security interest hereby created any of Trustor's
properties, rights or interest covered or intended to be covered hereby; and, to
perfect and maintain such lien and security interest.
35. Separate Taxation of Trust Property. For the purpose of securing
separate taxation and assessment of the premises herein described, Trustor
shall, if not already accomplished and if obtainable, obtain a separation of the
Trust Property which is realty from all other adjacent lands.
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36. Change in Address. Trustor shall keep Beneficiary advised at all
times of the address or addresses of Trustor's residence, place of business, and
if more than one, Trustor's chief executive office, and Trustor shall
immediately advise Beneficiary of any change in any such address.
37. Extension. The Note secured by this Deed of Trust contains a
provision for the extension of the maturity date.
INNOVATIVE MICRO TECHNOLOGY, INC., a Delaware corporation
/s/ Xxxx X. Xxxxxx
_________________________________
Xxxx X. Xxxxxx, Chief Executive Officer, President and Chairman of the Board
/s/ Xxxxx X. Xxxxxxxxx
_________________________________
Xxxxx X. Xxxxxxxxx, Chief Financial Officer, Controller and Secretary
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FORM OF REQUEST TO XXXXXX
THE PROMISSORY NOTE OR NOTES, AND ANY EVIDENCES OF FURTHER AND/OR ADDITIONAL
ADVANCES MUST BE PRESENTED WITH THIS REQUEST:
Walnut Creek, California,
Date______________________
To INVESTORS YIELD, INC., a California Corporation Trustee:
You are hereby authorized and requested to execute a reconveyance hereunder and
deliver the same to:
------------------------------------------------------------------------------
Trustee
------------------------------------------------------------------------------
Address
____________________________________________Regarding Order #___________________
Attention
The undersigned hereby certifies that they are `the owner and holder of the debt
mentioned in said deed of trust by recorded assignment.
Beneficiary:
-------------------------------------------
-------------------------------------------
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EXHIBIT "A"
That portion of Ranchos Los Dos Pueblos, in the County of Santa Xxxxxxx, State
of California, described as follows:
Beginning at the Southeasterly corner of the tract of land described in the deed
to Raytheon Manufacturing Company, recorded February 28, 1957 as Instrument No.
4219 in Book 1432, Page 370 of Official Records, records of said County, being a
point on the Northerly line of Hollister Avenue, as shown on a map of survey
filed in Book 24 at Page 52 of Record of Survey, in the Office of the County
Recorder of said County; thence leaving said Northerly line of Hollister Avenue
and following along the Easterly line of said Raytheon Tract of land, North
3(0)22' 25" West, 507.70 feet to a point from which the Northeasterly corner.
thereof bears North 3(degree) 22' 25" West, 306.84 feet; thence, leaving said
Easterly line of said Raytheon Tract of land parallel with the Northerly line of
said Hollister Avenue and distant 500.00 feet Northerly therefrom measured at
right angles thereto, North 76(degree) 38' East, 70.29 feet; thence, continuing
parallel with the Northerly line of Hollister Avenue and distant 500.00 feet
Northerly therefrom measured at right angles thereto, North 74(degree) 19' East
at 532.75 feet the Southwesterly corner of the tract of land described in the
deed to Xxxxxx-Xxxxxxx Corporation, a Nevada Corporation, recorded July 21, 1958
as Instrument No. 17238 in Book 1541 at Page 61 of Official Records, records of
said County, 932.75 feet to the Southeasterly corner of said last mentioned
tract of land on the Westerly line of La Patera Road 60 feet in width, as
described in the deed to County of Santa Xxxxxxx, recorded in Book 39 at Page
385 of Deeds, records of said County; thence along said Westerly line of said La
Patera Road, South 10(degree) 51' 30" East, 501.78 feet to the Northerly line of
Hollister Avenue; thence along said Northerly line, South 74(degree) 19' West,
900.65 feet to an angle point therein; thence South 76(degree) 38' West, 162.50
feet to the point of beginning.
EXCEPTING therefrom that portion thereof described in the deed to the County of
Santa Xxxxxxx, recorded December 7, 1962 as Instrument No. 51965 in Book 1966 at
Page 463 of Official Records.
Also excepting therefrom one-half of any and all oil, gas and other hydrocarbon
substances within and under the above described property more than 500 feet
beneath the surface thereof and/or producible therefrom or therethrough,
without, however, any surface rights or right of surface entry with respect
thereto, as reserved in deed from Xxxxx Xxxxxxxx, Xx., as. Executor of the Will
of Xxxxx X. Xxxxxxxx, deceased, recorded January 27, 1961 as Instrument No. 2800
in Book 1820, Page 50 of Official Records.
APN#00-000-00
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EXHIBIT "B"
A Deed of Trust to secured an indebtedness in the original amount shown below:
Amount: $7,625,000.00
Dated: November 18, 1999
Trustor: Applied Magnetics Corporation, a Delaware corporation
Trustee: Bar K, Inc., a California corporation
Beneficiary: Gold Mountain Financial Institution, Inc.,
a California corporation
Recorded: November 24, 1999, as Instrument No. 00-0000000
Original Loan #: Not shown
Affects: The herein described land and other land
A junior Deed of Trust in favor of the Professional Persons as described in and
pursuant to the Order and/or Debtor's Third Amended Plan of Reorganization under
Chapter 11 of the Bankruptcy Code dated as of September 24, 2001, as modified.
Said Deed of Trust shall be recorded subsequent to, and shall at all times
remain junior to, Xxxxx Financial Group's Deed of Trust.
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STATE OF CALIFORNIA
COUNTY OF SANTA XXXXXXX
On this 21 day of December in the year of 2001 before me, the undersigned, a
Notary Public in and for said State, personally appeared
Xxxx X. Xxxxxx and Xxxxx X. Xxxxxxxxx
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal. `;
Signature XXXXX X XXXXXX
NOTARY PUBLIC
STATE OF __________________
COUNTY OF________________
On this _____ day of___________ in the year of _, before
me, the undersigned, a Notary Public in and for said State, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature __________________________
NOTARY PUBLIC
THIS CERTIFICATE IS ATTACHED TO THE DOCUMENT IDENTIFIED AS DEED OF TRUST,
SECURITY AGREEMENT & ASSIGNMENT OF LEASES & RENTS Dated December 20, 2001
