EXHIBIT 10.38
NOTE EXTENSION AND ASSUMPTION AGREEMENT
This NOTE EXTENSION AND ASSUMPTION AGREEMENT (this "Agreement") is dated
effective as of January 31, 2002, and is made by and between Western Management
Services, L.L.C., an Oregon limited liability company ("Western"), Xxxxxxx
Mortuary, Inc., an Oregon corporation ("Xxxxxxx"), The Neptune Society, Inc., a
Florida corporation ("Neptune Society"), Neptune Society of America, Inc., a
California corporation ("Neptune America"), and Green Leaf Investors I, LLC, a
California limited liability company ("Xxxxxxxxx"), with reference to the
following facts:
X. Xxxxxxx acquired certain equipment, inventory, receivables, contract
rights, general intangibles, trademarks and trade names and other assets of
the businesses known as "Heritage Memorial," "Heritage Memorial Society,"
"Heritage Memorial Cremation Society," "The Heritage Society," "Heritage
Cremation Society," "Xxxxxxx Mortuary," "Xxxxxxx Funeral Home," "Xxxxxxx
Crematory," "Oregon Cremation Company," "Oregon Cremation & Burial
Company," and "AAA Cremation Company," pursuant to certain agreements dated
July 5, 2000 by and among Xxxxxxx, Heritage Memorial Society, L.L.C., an
Oregon limited liability company, Community Memorial Centers, L.L.C.
("CMC"), an Oregon limited liability company, Xxxxx Xxxxxxxxx, Xxxxxxx Xxxx
and Neptune Society (collectively, together with certain replacements,
substitutions or accessions thereto and certain after-acquired assets, the
"Xxxxxxx Assets"). Xxxxxxx also acquired certain real property described
more fully in Exhibit A attached hereto (the "Portland Property"), used in
connection with its business. Neptune Society, parent of Neptune America
and Xxxxxxx, issued a debenture in the original principal amount of
$1,000,000 dated July 5, 2000 (the "CMC Debenture") payable to CMC or its
order as consideration for the Portland Property. Payments under the CMC
Debenture are secured by, among other things, that certain Trust Deed dated
July 5, 2000 executed by Western for the benefit of CMC, recorded on July
18, 2000 in Multnomah County, Oregon as Fee No. 2000-098983, encumbering
the Portland Property (the "CMC Trust Deed").
X. Xxxxxxx borrowed $1,575,000 from Xxxxxxxxx (the "Xxxxxxxxx Loan") under the
terms of a Loan Agreement dated August 8, 2001 (the "Xxxxxxxxx Loan
Agreement"), which obligation is evidenced by a promissory note dated
August 8, 2001, due January 31, 2002 and bearing interest at the rate of
12% per annum, payable monthly in arrears (the "Xxxxxxxxx Note"), and
secured by a first priority security interest granted in the Xxxxxxx Assets
under a security agreement dated August 8, 2001 (the "Xxxxxxxxx Security
Interest") and a trust deed dated August 6, 2001, recorded on August 8,
2001 in Multnomah County, Oregon as Fee No. 2001-124418, encumbering the
Portland Property (the "Xxxxxxxxx Trust Deed"). In connection with the
Xxxxxxxxx Loan Agreement, the following, among other, agreements,
certificates, instruments or documents were executed and delivered: the
Xxxxxxxxx Note; the Xxxxxxxxx Security Agreement; the Xxxxxxxxx Trust
Agreement; Subordination Agreement among Xxxxxxxxx, CapEx L.P., a Delaware
limited partnership ("CapEx"), and X.X. Xxxxx Investment Banking Corp., a
Delaware corporation ("DHB"); Subordination Agreement among Xxxxxxxxx,
Xxxxxxx Xxxxxxxxx and the Xxxxxxx Xxxxxxxxx Inter Vivos Trust;
Intercreditor Agreement among Xxxxxxxxx, CMC and Xxxxxxx; Guaranty by
Neptune Society; Guaranty by Neptune America; Warrant issued by Neptune
Society to Xxxxxxxxx exercisable to acquire 30,000 shares of Neptune
Society common stock (the "Xxxxxxxxx Warrant"); Piggyback Registration
Agreement between Xxxxxxxxx and Neptune Society (the "Registration Rights
Agreement"); Assignment Agreement; Forbearance Agreement between CMC and
Neptune Society; Unsecured Environmental Indemnity Agreement by Xxxxxxx,
Neptune Society and Neptune America; and Loan Put Agreement among
Xxxxxxxxx, Xxxxx Xxxxxxxxx, and Xxxxxxx Xxxx (collectively with the
Xxxxxxxxx Loan Agreement, the "Xxxxxxxxx Loan Documents");
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C. Western, Xxxxxxx, Neptune Society and Neptune America have entered into
that certain Asset Purchase Agreement dated effective as of January 31,
2002 (the "Asset Purchase Agreement"), in the form attached hereto as
Exhibit B, pursuant to which Western agreed to purchase substantially all
of the Xxxxxxx Assets and the Portland Property and to assume certain
liabilities of Xxxxxxx, including, among others, the CMC Debenture and the
Xxxxxxxxx Note.
D. For the purposes of facilitating the transactions contemplated under the
Asset Purchase Agreement, (a) Xxxxxxx has agreed to (i) pay Xxxxxxxxx a
loan extension fee consisting of 300,000 shares of common stock of Neptune
Society; (ii) pay $75,000 of the principal amount of the Xxxxxxxxx Note by
means of the issuance by Neptune Society to Xxxxxxxxx of a convertible
debenture with certain anti-dilution protections, in substantially the form
attached hereto as Exhibit C (the "Xxxxxxxxx Convertible Debenture"), and
(iii) pay Xxxxxxxxx all accrued and unpaid interest outstanding on the
Xxxxxxxxx Note as of March 8, 2002 (the "Closing Date"); (b) Xxxxxxxxx is
willing to amend the due date of the Xxxxxxxxx Note to July 31, 2002,
effective as of January 31, 2002; (c) CMC is willing to enter into a
subordination agreement to subordinate the CMC Trust Deed to the Xxxxxxxxx
Trust Deed, in substantially the form attached hereto as Exhibit D (the
"CMC Subordination Agreement"); (d) Xxxxx Xxxxxxxxx and Xxxxxxx Xxxx are
willing to acknowledge, ratify and confirm the Loan Put Agreement entered
into with Xxxxxxxxx; and (e) Neptune Society is willing to enter into a
Right of First Refusal Agreement with Xxxxxxxxx, in substantially the form
attached hereto as Exhibit E (the "First Right Agreement").
E. Pursuant to Sections 2.2 and 2.4 of the Asset Purchase Agreement, Western
agreed to assume Xxxxxxx'x obligations under the Xxxxxxxxx Note, the CMC
Debenture, the Xxxxxxxxx Trust Deed and the CMC Trust Deed (the "Assumed
Obligations") as consideration for the Xxxxxxx Assets and the Portland
Property.
X. Xxxxxxxxx is willing to (i) acknowledge Western's assumption of the Assumed
Obligations and (ii) consent to Xxxxxxx'x sale of the Xxxxxxx Assets and
Portland Property only upon (a) Western's acknowledgement of the grant of a
first priority security interest by Xxxxxxx to Xxxxxxxxx in the Xxxxxxx
Assets under the Xxxxxxxxx Security Agreement dated August 8, 2001; (b)
Western's acknowledgement and assumption of the Xxxxxxxxx Trust Deed; (c)
an agreement by Western to pay directly to Xxxxxxxxx the principal,
interest and any penalties due after the Closing Date under the Xxxxxxxxx
Note; (d) Western's consent to amendments to Uniform Commercial Code
financing statements naming Western as an additional debtor and perfecting
the first priority security interest in the Xxxxxxx Assets; (e)
acknowledgment and ratification by Neptune Society and Neptune America of
the guaranty of Xxxxxxx'x obligations under the Xxxxxxxxx Note, as amended
(each, a "Guaranty"); and (f) Neptune Society's issuance of the Xxxxxxxxx
Convertible Debenture to Xxxxxxxxx.
X. Xxxxxxx is willing to acknowledge and agree to Western's assumption of the
Assumed Obligations only upon obtaining a grant of a security interest by
Western in the Xxxxxxx Assets, subordinate to the Xxxxxxxxx Security
Interest, the Xxxxxxxxx Trust Deed and the CMC Trust Deed, under the terms
of a security agreement in the form attached hereto as Exhibit F (the
"Xxxxxxx Security Agreement") securing Western's obligations under the
Assumed Obligations, the Asset Purchase Agreement and this Agreement.
H. Western is willing to enter into this Agreement and the transactions
contemplated herein to induce (i) Xxxxxxxxx to acknowledge and consent to
the assumption by Western of Xxxxxxx'x obligations under the Xxxxxxxxx Note
and the sale of the Xxxxxxx Assets and the Portland
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Property; (ii) Neptune Society to issue the Xxxxxxxxx Convertible Debenture
and (iii) Xxxxxxx to enter into the Asset Purchase Agreement.
NOW THEREFORE, in consideration of the premises, the parties hereto agree
as follows:
1. Amendment of Xxxxxxxxx Note. Xxxxxxx and Xxxxxxxxx hereby agree that the
Xxxxxxxxx Note is hereby amended to extend the due date of the Xxxxxxxxx Note to
July 31, 2002, subject to: (a) the issuance by Neptune Society to Xxxxxxxxx of
the Xxxxxxxxx Convertible Debenture as payment by Xxxxxxx of $75,000 of the
principal amount of the Xxxxxxxxx Note and (b) payment by Xxxxxxx of all accrued
interest outstanding on the Xxxxxxxxx Note as of the Closing Date (in the amount
as set forth in the Estoppel and Investor Representation Certificate delivered
by Xxxxxxxxx in the form attached hereto as Exhibit G). No separate instrument
shall be required to evidence the amendment, contained in this Section 1, of the
due date of the Xxxxxxxxx Note to July 31, 2002.
2. Payment of Loan Extension Fee.
(a) Neptune Society will issue Xxxxxxxxx 300,000 shares of common
stock of Neptune Society as a loan extension fee (the "Loan Extension Fee
Shares");
(b) Xxxxxxxxx acknowledges and agrees that the Loan Extension Fee
Shares have not been and will not be registered under the Securities Act of
1933, as amended (the "Act"), or the securities laws of any state, and are being
issued to Xxxxxxxxx in reliance upon an exemption from such registration
requirements;
(c) Xxxxxxxxx acknowledges that Neptune Society Company is relying on
certain representations and warranties contained in the Estoppel and Investor
Representation Certificate in determining to offer and issue the Loan Extension
Fee Shares and the Xxxxxxxxx Debenture to Xxxxxxxxx in a manner exempt from the
registration requirements of the Act and applicable state securities laws;
(d) Neptune Society acknowledges that the Loan Extension Fee Shares
and the shares of common stock acquirable upon conversion of the Xxxxxxxxx
Debenture are "Registrable Securities" as that term is defined under the
Registration Rights Agreement dated August 8, 2001, by and between Neptune
Society and Xxxxxxxxx.
3. Amendment of Xxxxxxxxx Warrant. Neptune Society and Xxxxxxxxx hereby
agree that the Xxxxxxxxx Warrant is hereby amended to extend the expiration date
of the Xxxxxxxxx Warrant to December 31, 2005. No separate instrument shall be
required to evidence the amendment, contained in this Section 3, of the
expiration date of the Xxxxxxxxx Warrant to December 31, 2005; provided,
however, that upon the written request of Xxxxxxxxx and surrender of original
warrant, Neptune Society will issue an amended and restated warrant certificate
reflecting this amendment.
4. Assumption of Xxxxxxxxx Note. Effective as of the Closing Date, Western
hereby assumes and agrees to perform any and all obligations of Xxxxxxx under
the Xxxxxxxxx Note, as amended, including, but not limited to, the obligations
to make all payments of principal, accrued interest and penalties, if any, when
due. Without limiting the generality of the foregoing, Western shall be
primarily liable under the Xxxxxxxxx Note.
5. First Right Agreement. Effective as of the Closing Date, Neptune Society
will enter into the First Right Agreement with Xxxxxxxxx.
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6. Consent to Transfer and Assumption of Xxxxxxxxx Trust Deed and
Subordination Agreement. Effective as of the Closing Date, Western, Xxxxxxxxx
and Xxxxxxx will enter into a Consent to Transfer and Assumption of Deed of
Trust, and Subordination Agreement, in the form attached hereto as Exhibit H,
which shall be recorded in Multnomah County.
7. CMC Subordination. Effective as of the Closing Date, CMC and Xxxxxxxxx
will enter into the CMC Subordination Agreement.
8. Xxxxxxx Trust Deed. Western will execute and deliver the deed of trust,
security agreement and fixture filing related to the Portland Property, which
shall be recorded in Multnomah County (the "Xxxxxxx Trust Deed").
9. Acknowledgement of Assumption and Consent to Asset Purchase Agreement.
(a) Xxxxxxxxx acknowledges that Western has assumed and agrees to
perform any and all obligations of Xxxxxxx under the Xxxxxxxxx Note and the
Xxxxxxxxx Trust Deed, and Xxxxxxxxx agrees to accept payments under the
Xxxxxxxxx Note from Western. Notwithstanding the foregoing, nothing in this
Agreement shall release (i) Xxxxxxx from its obligations to Xxxxxxxxx under the
Xxxxxxxxx Note or the Xxxxxxx Security Agreement or (ii) Neptune Society and
Neptune America under their respective Guaranty.
(b) Xxxxxxxxx hereby consents to the sale of the Xxxxxxx Assets and
the Portland Property to Western, the assumption by Western of Xxxxxxx'x
obligations under the Xxxxxxxxx Note and the CMC Debenture, and the delivery of
the Xxxxxxx Trust Deed by Western.
10. Acknowledgement and Ratification of Security Interest. Xxxxxxx hereby
acknowledges, ratifies and confirms that the Xxxxxxx Security Interest is
subordinate to the Xxxxxxxxx Security Interest.
11. Acknowledgement and Ratification of Guaranty. Neptune Society and
Neptune America affirm and ratify their respective guaranty agreements provided
to Xxxxxxxxx and confirm that (a) each person or entity comprising each
guarantor does irrevocably and unconditionally guarantee to Xxxxxxxxx the
payment and performance of the obligations under each Guaranty, upon the terms
and conditions set forth in each Guaranty, and (b) each Guaranty remains in full
force and effect and binding upon the respective guarantor without any setoffs,
defenses or counterclaims of any kind whatsoever.
12. Acknowledgement of Security Interests under the Xxxxxxxxx Loan
Documents. Western hereby acknowledges and confirms Xxxxxxxxx'x rights and
preferences, including the continuing security interest in the Xxxxxxx Assets
and Portland Property arising out of the Xxxxxxxxx Loan Documents and such other
documents and instruments entered into in connection with the Xxxxxxxxx Loan and
this Agreement.
13. Closing.
(a) Closing Place and Time. The Closing shall take place at the law
offices of Xxxxxx Xxxxx at 0000 X.X. Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx
00000-0000 on March 8, 2002 or such other date as the parties may agree.
(b) Conditions to Closing. Xxxxxxxxx'x obligation to amend the due
date of the Xxxxxxxxx Note and to consent to the assumption of the Xxxxxxxxx
Note is subject to satisfaction of all of the
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following conditions before or contemporaneously with the Closing, any one or
more of which Xxxxxxxxx may waive in writing:
(i) Truth of Representations and Warranties. The representations
and warranties of Xxxxxxx, Neptune Society, Neptune America, CMC and Western
contained in this Agreement, the Xxxxxxxxx Loan Documents, and in any other
certificate, instrument or document submitted by such parties to Xxxxxxxxx shall
be true and accurate in all material respects.
(ii) Xxxxxxxxx Debenture. Neptune Society shall have delivered a
debenture certificate representing the Xxxxxxxxx Convertible Debenture.
(iii) Delivery of Transaction Documents. Xxxxxxx, Neptune
Society, Neptune America, and Western, as applicable, shall have executed and
delivered to Xxxxxxxxx, or caused to be executed and delivered to Xxxxxxxxx by
the party or parties thereto, the following documents, each of which shall be in
form and substance satisfactory to Xxxxxxxxx:
(1) this Agreement;
(2) the Xxxxxxxxx Convertible Debenture;
(3) Modification Endorsement for Title Policy for the
benefit of Xxxxxxxxx; and
(4) such other documents and instruments reasonably
required by Xxxxxxxxx in connection with
transactions contemplated in this Agreement.
(iv) Loan Extension Fee Shares. Neptune Society shall have
delivered a certificate evidencing the Loan Extension Fee Shares to Xxxxxxxxx.
(v) CMC Subordination Agreement. CMC shall have executed and
delivered the CMC Subordination Agreement.
(vi) Loan Put Agreement Acknowledgement. Xxxxx Xxxxxxxxx and
Xxxxxxx Xxxx shall have executed and delivered a Loan Put Agreement
Acknowledgment in substantially the form attached here to as Exhibit I.
(c) Other Closing Deliveries. In addition to the documents required to
be delivered to Xxxxxxxxx in Section 11(a)(iii), on the closing date, the
following documents shall be delivered:
(i) the Consent to Transfer and Assumption of Trust Deed;
(ii) Xxxxxxx Trust Deed;
(iii) Xxxxxxxxx Estoppel and Investor Representation Certificate;
(iv) executed First Right Agreement;
(v) forms of UCC financing statements prepared by Xxxxxxxxx; and
(vi) such other documents and instruments reasonably required in
connection with transactions contemplated in this Agreement.
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14. General Provisions.
(a) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the state of Oregon without regard to the choice
of law provisions thereof. In the event of any litigation, the prevailing party
shall be entitled to recover from the other party all of its attorneys' fees and
other expenses incurred in connection with such litigation.
(b) Non-assignability. No Party shall assign this Agreement or any
rights arising hereunder without the prior written consent of Xxxxxxx and
Xxxxxxxxx, which consent shall not be unreasonably withheld.
(c) Notice. All notices required to be given under this Agreement
shall be deemed given when personally served in writing on the person to be
notified, or on the second business day following placement in the U.S. Mail,
postage prepaid, to the applicable party at the addresses indicated below:
If to Western:
Western Management Services, L.L.C.
0000 XX Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Fax: (503)
Attn: Xxxxxxx Xxxx, Manager
With a copy to:
Xxxxxx X. Xxxxx, P.C.
0000 XX Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
If to Xxxxxxx, Neptune Society or Neptune America:
c/o The Neptune Society, Inc.
0000 Xxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxx Xxxxxxxxx, President
with a copy to:
Xxxxxx & Whitney LLP
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxxx Xxxxx, Esq.
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If to Xxxxxxxxx:
Green Leaf Investors I, LLC
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxx X. Xxxx, Esq.
with a copy to:
Xxxx Xxxxxx Spears Lubersky LLP
000 XX Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxxx, Esq.
or, as to each party, at such other address as shall be designated by such party
in the written notice to each other party complying as to delivery with the
terms of this paragraph.
(d) Successors and Assigns. Except as otherwise provided herein, this
Agreement shall be binding on and shall inure to the benefit of the parties to
it and their respective heirs, legal representatives, successors and assigns.
The terms of this Agreement shall be enforceable by the parties hereto.
(e) Amendment. This Agreement constitutes the entire understanding of
the parties with respect to the subject matter contained herein, and may be
amended only by a written instrument executed by the parties or their respective
successors or assigns.
(f) Attorneys' Fees. In the event a suit, action, or other proceeding
of any nature whatsoever, including any proceeding under the U.S. Bankruptcy
Code, is instituted in connection with any controversy arising out of this
Agreement or to interpret or enforce any rights hereunder, the prevailing party
shall be entitled to recover from the losing party its attorneys', paralegals',
accountants', and other experts' fees and all other fees, costs, and expenses
actually incurred and reasonably necessary in connection therewith, as
determined by the court at trial or on any appeal or review, in addition to all
other amounts provided by law.
(g) Expenses Related to this Agreement. Neptune Society shall pay or
reimburse Xxxxxxxxx, upon demand, all of Xxxxxxxxx'x reasonable out-of-pocket
costs and expenses to the extent incurred by Xxxxxxxxx in connection with the
negotiation, preparation, review, carrying-out, amendment, waiver, refinancing,
restructuring, reorganization and enforcement of, and collection pursuant to,
this Agreement, any substitution of security under this Agreement and any
amendment of any financing statement made or given pursuant to this Agreement,
including, without limitation, Xxxxxxxxx'x reasonable attorneys' fees; fees of
Xxxxxxxxx'x certified public accountants and other outside experts; credit
reports; appraisal fees; lien searches; escrow charges; recording or filing
fees; insurance premiums; inspection, due diligence and/or audit fees in
connection with the transactions contemplated in this Agreement.
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(h) Severability Each paragraph of this Agreement shall be viewed as
separate and divisible, and in the event that any paragraph is held to be
invalid, the remaining paragraphs shall continue in full force and effect.
(i) Counterparts: This Agreement may be executed in any number of
counterparts, each of which when delivered shall be deemed to be an original and
all of which together shall constitute one and the same document. A signed
facsimile or telefaxed copy of this Agreement shall be effectual and valid proof
of execution and delivery.
[This space intentionally left blank - signature page follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
Xxxxxxx Mortuary, Inc. Western Management Services, L.L.C.
Per: /s/ Xxxxx Xxxxxxxxx Per: /s/ Xxxxxxx Xxxx
------------------------ -----------------------------
Authorized Signatory Authorized Signatory
The Neptune Society, Inc.
Per: /s/ Xxxxx Xxxxxxxxx
------------------------
Authorized Signatory
Neptune Society of America, Inc.
Per: /s/ Xxxxx Xxxxxxxxx
------------------------
Authorized Signatory
Green Leaf Investors I, LLC, a California limited
liability company
By: The Apogee Management Company, Inc., a California
corporation, Manager
By: /s/ Xxx Xxxx
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Title:
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EXHIBIT A
DESCRIPTION OF PORTLAND PROPERTY
Lots 1 and 2 and the East one-half of Xxxx 0, 0, 0 xxx 0, Xxxxx 0, XXXX VIEW
PARK ADDITION TO THE CITY OF EAST PORTLAND, in the City of Portland, County of
Multnomah and State of Oregon.
SUBJECT, HOWEVER, TO THE FOLLOWING:
o Taxes for the fiscal year 2001-2002 a lien not yet payable.
o Trust Deed, including the terms and provisions thereof, given to secure an
indebtedness of $1,000,000.00
Dated: July 5, 2001
Recorded: July 18, 2000 as Fee No. 2000-098983
Grantor: Xxxxxxx Mortuary, Inc.
Trustee: Ticor Title Insurance Company
Beneficiary: Community Memorial Centers, L.L.C., an Oregon limited
liability company
o Trust Deed, including the terms and provisions thereof, given to secure an
indebtedness of $1,575,000
Dated: August 6, 2001
Recorded: August 8, 2001 as Fee No. 2001-124418
Grantor: Xxxxxxx Mortuary, Inc.
Trustee: First American Title Insurance Company of Oregon
Beneficiary: Green Leaf Investors I, LLC
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EXHIBIT B
ASSET PURCHASE AGREEMENT
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EXHIBIT C
XXXXXXXXX CONVERTIBLE DEBENTURE
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EXHIBIT D
SUBORDINATION AGREEMENT
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EXHIBIT E
FIRST RIGHT OF REFUSAL AGREEMENT
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EXHIBIT F
XXXXXXX SECURITY AGREEMENT
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EXHIBIT G
ESTOPPEL AND INVESTOR REPRESENTATION CERTIFICATE
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EXHIBIT H
CONSENT TO TRANSFER AND ASSUMPTION OF XXXXXXXXX TRUST DEED
AND SUBORDINATION AGREEMENT
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EXHIBIT I
LOAN PUT AGREEMENT ACKNOWLEDGMENT
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