MASTER EQUIPMENT LEASE
Master Equipment Lease dated as of April 3, 1997, by
and between ICON FINANCIAL CORP., a Delaware
corporation. ("Lessor"), having its principal office
and place of business at 0 Xxxxxxxxxxx Xxxxxx, Xxxxx
000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 and SHF
ACQUISITION CORPORATION, a Nevada Corporation,
("Lessee"), having its principal office and place of
business at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxx
Xxxxx, Xxxxxx 00000.
IN CONSIDERATION of the mutual agreements set forth
hereinafter and the payment of rent as provided for
herein, the parties agree as follows:
1. PROPERTY LEASED. Lessor hereby agrees to advance
funds up to an aggregate amount not to exceed One
Million One Hundred and Fifty Thousand Dollars,
($1,150,000.00) for the construction of a Rice Drying
Tower and all attachments and ancillary equipment
thereto, and any other equipment as described in
either: (i) a Promissory Note, substantially in the
form of Exhibit "A" attached hereto; or (ii) an
Equipment Schedule, substantially in the form of
Exhibit "B" attached hereto, and to lease the Equipment
to Lessee, all pursuant to the terms and conditions set
forth herein. The equipment described in either the
Promissory Note or the Equipment Schedule shall be
referred to hereinafter as the "Equipment".
This contract is a Master Equipment Lease and the terms
of the February 10, 1997 and the March 21, 1997 letters
from Lessor to Lessee acknowledged by Lessee, and
appearing as Exhibit "D" hereto, (herein collectively
referred to as the "Letters"), and Promissory Note or
Equipment Schedule hereto are subject to any and all
conditions and provisions set forth herein as may from
time to time be amended by the parties in writing. The
Letters, and Promissory Note or Equipment Schedule
shall be made a part hereof, shall incorporate therein
all of the terms and conditions of this Master
Equipment Lease and shall contain such additional terms
and conditions as Lessor and Lessee shall agree upon in
writing. The Letters, and Promissory Note or Equipment
Schedule are enforceable according to the terms and
conditions contained therein and herein. In the event
of a conflict between the language of this Master
Equipment Lease and any Promissory Note or Equipment
Schedule hereto, the language of the Promissory Note or
Equipment Schedule shall prevail in respect of that
Promissory Note or Equipment Schedule.
Lessor, by its acceptance hereof at its home office,
agrees to lease to Lessee, and Lessee agrees to lease
from Lessor, in accordance with the terms and
conditions herein, the Equipment. Lessee shall have no
right, title or interest in the Equipment, except as
expressly set forth in this Master Equipment Lease.
The Lessor shall have no obligation hereunder until the
execution and delivery of any Promissory Note or
Equipment Schedule by Lessor and Lessee.
2. TERM, RENT AND TERMINATION. The term of Master
Equipment Lease shall commence on the date set forth
above and shall continue thereafter so long as any
Promissory Note or Equipment Schedule entered into
pursuant to this Master Equipment Lease remains in
effect.
The Lease Term and the Rent payable with respect to the
equipment shall be as set forth in and as stated in the
respective Promissory Note or Equipment Schedule(s).
At the end of the Base Lease Term, if no Event of
Default shall exist, Lessee shall have the right to
purchase not less than all of the Equipment for $1.00.
3. ACCEPTANCE, WARRANTIES, LIMITATION OF LIABILITY.
Lessee represents and agrees that as of the date the
Equipment is accepted hereunder (the "Acceptance
Date"), the Equipment is of a size, design, capacity
and manufacture selected by Lessee and that Lessee has,
as between Lessee and Lessor, unconditionally accepted
such Equipment. On the Acceptance Date, Lessee will
execute and deliver the Equipment Schedule and
Certificate of Delivery and Acceptance ("Acceptance")
in the form attached as Exhibit "C" with respect to the
Equipment, which Acceptance will be conclusive evidence
of the foregoing. Should Lessee fail to so execute and
deliver either document promptly upon the completion of
the construction of the project Lessor may in its sole
discretion require that Lessee
Master Equipment Lease
ICON Financial Corp.-SHF Acquisition Corp.
April 3, 1997
Page 2 of 9
immediately repay the amounts outstanding under the
Promissory Note in accordance with the terms of the
fourth paragraph thereof.
LESSOR SHALL HAVE NO LIABILITY TO LESSEE FOR ANY CLAIM,
LOSS OR DAMAGE CAUSED OR ALLEGED TO BE CAUSED DIRECTLY,
INDIRECTLY, INCIDENTALLY OR CONSEQUENTIALLY BY THE
EQUIPMENT, BY ANY INADEQUACY THEREOF OR DEFICIENCY OR
DEFECT THEREIN, BY ANY INCIDENT ARISING OUT OF THIS
AGREEMENT. LESSOR MAKES NO EXPRESS OR IMPLIED
WARRANTIES OF ANY KIND, INCLUDING THOSE OF
MERCHANTABILITY, DURABILITY AND FITNESS FOR A
PARTICULAR PURPOSE OR USE WITH RESPECT TO THE EQUIPMENT
AND EXPRESSLY DISCLAIMS THE SAME. Notwithstanding the
foregoing, Lessee will be entitled to the benefit of
any applicable manufacturer's warranties, and, to the
extent assignable, such warranties are hereby assigned
by Lessor for the benefit of Lessee, and Lessee shall
take all reasonable action to enforce such warranties
where available to Lessee.
4. ASSIGNMENT, OBLIGATION TO PAY RENT UNCONDITIONAL.
Lessor may assign or sell all or a portion of its
right, title and interest in and to the Equipment or
this Master Equipment Lease, the Promissory Note and/or
any Equipment Schedule and/or grant a security interest
in the Equipment to one or more lenders or equity
sources ("Assignees"). Lessee hereby (a) consents to
such assignments and/or grants, (b) agrees promptly to
execute and deliver such further acknowledgments,
agreements and other instruments as may be reasonably
requested by Assignee to effect such assignments and/or
grants, from time to time as a Promissory Note or
Equipment Schedule is executed, and (c) agrees to
comply fully with the terms of any such assignments
and/or grants so long as, or provided that, such
compliance shall not increase Lessee's obligations or
diminish its rights hereunder. In the event of an
assignment, Lessor shall notify Lessee of such
assignment and thereafter all references herein to
Lessor shall include Assignee; provided, however, that
Assignee shall not be obligated to perform the
obligations of Lessor hereunder unless Assignee
expressly agrees to do so in writing. Lessor agrees
that, in the event of any such assignment hereunder,
such assignment shall specifically provide, and Lessee
shall be notified, that Lessor and/or Assignee shall
bear the responsibility (herein "Responsible Party")
for making or causing to be made the progress payments
provided for in the Letters in accordance with the
terms of such Letters. In the event the Responsible
Party fails to make or cause to be made the progress
payments provided for in the Letters ("Progress
Payment") and Lessee is not in default under this
Master Equipment Lease, the Promissory Note or the
Letters and has not suffered a "material adverse
change" as defined in the Letters, Lessee shall provide
notice to the Responsible Party of its failure to make
the Progress Payment. If the Responsible Party does
not make or cause to be made the Progress Payment
within ten (10) days following receipt of the notice as
receipt is provided for in Paragraph 18(b), such
failure to make the Progress Payment shall be deemed a
breach of this Agreement and Lessee may seek its
available legal remedies resulting from such breach.
This Master Equipment Lease, together with the
Promissory Note and/or any Equipment Schedule is a net
lease and Lessee agrees that its obligation to pay all
Rent and other sums payable hereunder or thereunder
(collectively, "Rent"), and the rights of Lessor and
Assignee in and to such Rent, are absolute and
unconditional and are not subject to any abatement,
reduction, setoff, defense, counterclaim or recoupment
due to alleged to be due to, or by reason of, any past,
present, or future claims which Lessee may have against
Lessor, Assignee, the manufacturer or seller of the
Equipment, or against any person for any reason
whatsoever.
Lessee may, with the prior written consent of Lessor,
which consent shall not be unreasonably withheld,
sublet the Equipment, provided; (a) the rights of the
sublessee are expressly subject and subordinate to the
rights of Lessor, (b) the Equipment will be located
only in those jurisdictions in the United States which
have adopted and have in effect the Uniform Commercial
Code, (c) Lessee has filed or caused to be filed in
such state all financing statements necessary to
continue in effect any security interest of Lessor, and
(d) if Lessee intends to lease replacement Equipment,
Lessee shall give Lessor the opportunity to bid on the
lease of such replacement Equipment. If Lessee leases
replacement Equipment from Lessor, Lessor shall use its
best efforts to market or lease the Equipment to a new
buyer or new Lessee. No sublease will in any way
discharge or diminish any of Lessee's obligations to
Lessor hereunder.
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ICON Financial Corp.-SHF Acquisition Corp.
April 3, 1997
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5. INSTALLATION, MAINTENANCE AND REPAIR. Lessee
shall, at its expense, be responsible for the delivery,
installation, deinstallation, redelivery, maintenance
and repair of the Equipment by a party acceptable to
Lessor. Lessee agrees, at all times during the term of
the Promissory Note or Equipment Schedule, at its sole
expense, to keep the Equipment in good repair,
condition and working order, and to furnish all parts,
mechanisms or devices which may be required in the
course of so doing. Lessor or Assignee will have the
right, but not the obligation, to inspect the Equipment
during reasonable business hours.
6. REPRESENTATIONS AND WARRANTIES. Lessee represents
and warrants for the benefit of Lessor, and, if
requested by Lessor, will provide an opinion of counsel
and other supporting documents to the effect that:
(a) Lessee is a legal entity, duly organized, validly
existing and in good standing under the laws of the
jurisdiction of its organization and in each
jurisdiction where any Leased Item will be located and
has adequate power to enter into and perform this
Master Equipment Lease and the Promissory Note and
Equipment Schedule executed hereunder.
(b) This Master Equipment Lease and the Promissory
Note and Equipment Schedule executed hereunder have
been duly authorized, executed and delivered by Lessee
and together constitute a valid, legal and binding
agreement of Lessee, enforceable in accordance with its
terms.
(c) The entering into and performance of this Master
Equipment Lease and the Promissory Note and Equipment
Schedule executed hereunder will not violate any
judgment, order, law or regulation applicable to Lessee
or any provision of Lessee's entity constituting
documents (e.g. Articles of Incorporation, Partnership
Agreement, etc.) or bylaws or result in any breach of,
or constitute a default under, or result in the
creation of any lien, charge, security interest or
other encumbrance upon any assets of Lessee or on the
Equipment pursuant to any instrument to which Lessee is
a party or by which it or its assets may be found.
(d) There are no actions, suits or proceedings
pending, or to the knowledge of the Lessee threatened,
before any court, administrative agency, arbitrator or
governmental body which will, if determined adversely
to the Lessee, materially adversely affect its ability
to perform its obligations under this Master Equipment
Lease or any related agreement to which it is a party.
(e) Lessee is not in any material default under any
loan agreement.
7. LOSS AND DAMAGE.
(a) Lessee agrees to bear the risk of loss with
respect to any damage, destruction, loss, theft, or
governmental taking of any Leased Item, whether partial
or complete and whether or not through any default or
neglect of Lessee. Except as provided in this Section
7, no such event shall relieve Lessee of its obligation
to pay Rent hereunder.
(b) If any Leased Item is damaged, Lessee must
promptly notify Lessor and within 60 days of such
damage shall, at its expense, cause such repairs to be
made as are necessary to return such Leased Item to its
previous condition. Lessee shall then be entitled to
receive from Lessor or Assignee, as the case may be,
any insurance proceeds received or in connection with
such damage.
(c) In the event that any Leased Item is destroyed,
damaged beyond repair, lost, stolen or taken by
governmental action for a stated period extending
beyond the term of this Master Equipment Lease (an
"Event of Loss"), Lessee must promptly notify Lessor
and Assignee and pay to Lessor or Assignee, as the case
may be, on the next Rent payment date following the
Event of Loss, an amount equal to the Casualty Value
set forth in Exhibit "E" of such Leased Item in effect
on the date of Event of Loss and all Rent accrued on
such item up to the date of payment. Upon payment of
such amounts, Lessee's obligation to pay further Rent
will cease with respect to that Leased Item (but not
with respect to the remaining Equipment) and Lessee
will be entitled to receive any insurance proceeds or
other recovery received by Lessor or Assignee in
connection with such Event of Loss.
(d) In the event of a governmental taking of a Leased
Item for an indefinite period or for a stated period
which does not extend beyond the term of the applicable
Promissory Note and Equipment Schedule(s), all
obligations of the Lessee with respect to such Leased
Item (including payment of Rent) will continue. So
long as Lessee is not in default hereunder, Lessor will
pay to Lessee all sums received by Lessor by reason of
such governmental taking up to the amount paid by
Lessee during such period.
Master Equipment Lease
ICON Financial Corp.-SHF Acquisition Corp.
April 3, 1997
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8. INSURANCE. Lessee, at its expense, shall insure
the Equipment against all risks and in such amounts as
Lessor reasonably requires (but not less than the
Casualty Value as identified on each Exhibit B with
respect to the corresponding Promissory Note and
Equipment Schedule) with carriers acceptable to Lessor,
shall maintain a loss payable endorsement in favor of
Lessor and Assignee affording them such additional
protection as they reasonably require, and shall
maintain liability insurance satisfactory to Lessor.
All such insurance policies must name Lessor, Lessee
and Assignee as insureds and loss payees, and must
provide that they may not be canceled or altered
without at least 30 days' prior written notice to
Lessor and Assignee. Upon Lessor' and Assignee's
written consent, Lessee may act as a self-insurer in
amounts acceptable to Lessor and any Assignee.
9. INDEMNITY. Lessee agrees to indemnify Lessor and
Assignee against, and hold Lessor and Assignee harmless
from any and all claims, actions, suits, proceedings,
costs, expenses, damages and liabilities at law or in
equity, including attorneys' fees, arising out of,
connected with or resulting from this Master Equipment
Lease or the Equipment, including, without limitation,
the manufacture, selection, purchase, delivery,
possession, condition, use, operation or return
thereof, with the exception of events caused directly
by any intentionally wrongful acts of Lessor. Lessee's
obligations hereunder will survive the expiration of
this Master Equipment Lease with respect to acts or
events occurring or allege to have occurred prior to
the return of the Equipment to Lessor at the end of the
Lease Term.
10. LIENS AND TAXES. Lessee will, at its expense,
keep the Equipment free and clear of all levies, liens
and encumbrances. Lessee shall not assign or otherwise
encumber this Master Equipment Lease, any Promissory
Note and Equipment Schedule or any of its rights
hereunder without the prior written consent of Lessor.
Lessee will declare and pay when due all license fees,
registration fees, assessments, charges and taxes,
whether municipal, state or federal, including, but not
limited to, sales, use, excise and property taxes, and
penalties and interest with respect thereto, excluding,
however, any taxes based on or measured solely by
Lessor's net income. Lessee shall provide evidence of
any payment hereunder upon request of Lessor. In the
event of a default under this Master Lease Agreement if
requested by Lessor, Lessee shall pay, on such periodic
basis as Lessor shall reasonably require, such
proportionate amount of the aforesaid fees as shall be
necessary to enable Lessor to pay such taxes as and
when due (herein "Impound Account"). Lessor may
commingle such tax payment amounts with its other funds
and shall not be obligated to pay Lessee interest on
such funds collected.
Notwithstanding the foregoing, Lessee may in good faith
by appropriate proceedings and upon notice to Lessor,
contest the validity, applicability or amount of any
asserted tax or assessment so long as (a) such contest
is diligently pursued, (b) Lessor determines, in its
subjective opinion, that such contest suspends the
obligation to pay the tax and the nonpayment of such
tax or assessment will not result in the sale, loss,
forfeiture or diminution of the Equipment or Real
Property or any part thereof or any interest of Lessor
therein, and (c) prior to the earlier of the
commencement of such contest or the delinquency date of
the asserted tax or assessment, Lessee deposits with
Lessor in the Impound Account an amount to be adequate
to cover possible interest, costs and penalties;
provided, however, that Lessee shall promptly cause to
be paid any amount adjudged by a court of competent
jurisdiction to be due, with all interest, costs and
penalties thereon, promptly after such judgment becomes
final; and provided further that in any event each such
contest shall be concluded and the taxes, assessments,
interest, costs and penalties shall be paid prior to
the date any writ or order is issued under which the
Equipment and/or the Real Property may be sold, lost or
forfeited.
11. LESSEE'S FAILURE TO PERFORM. Should Lessee fail
to make any payment or do any act required herein,
Lessor has the right, but not the obligation and
without releasing Lessee from any obligation hereunder,
to make or do the same, and to pay, purchase, contest
or compromise any encumbrance, charge or lien which in
the judgment of Lessor appears to affect the Equipment,
and in exercising any such rights, incur any liability
and expend whatever amounts in its absolute discretion
it may deem necessary therefor. All sums so incurred
or expended by Lessor shall be, without demand,
immediately due and payable by Lessee and shall be
considered Rent hereunder and will bear interest at the
lesser of 1 1/2% per month or the highest interest rate
legally permissible.
12. FIRST MORTGAGE LIEN ON REAL PROPERTY; LOCATION OF
EQUIPMENT. Lessee shall provide Lessor with Additional
Collateral in the form of a Deed of Trust with
Assignment of Rents for the benefit of Lessor
Master Equipment Lease
ICON Financial Corp.-SHF Acquisition Corp.
April 3, 1997
Page 5 of 9
covering the following described Real Property: Two of
three parcels of real property (such that one of the
parcels contains the building known as the rice storage
facility), known as Lot 41, and Lots 44, 57 and the
North half of Xxx 00, Xxxxxxxxxx Xxxxx being Sacramento
Improvement Subdivision No. 10, filed June 2, 1909, in
book 3 of Maps and Surveys, page 83, Yolo County
Records, excepting therefrom those portions described
in the Final Order of Condemnation in favor of the
people of the State of California, recorded January 20,
1961, in Book 625 of Official Records at page 289.
In the event that the Deed of Trust with Assignment of
Rents has not otherwise been reconveyed or discharged,
upon satisfaction of Lessee's obligations under this
Master Lease Agreement, Lessor as Beneficiary shall
cause the Deed of Trust with Assignment of Rents to be
discharged. In the event of a default by Lessee and
the exercise by Lessor of any remedies pursuant to
Section 16 hereof, Lessor's obligations to discharge
the Deed of Trust with Assignment of Rents upon
satisfaction of Lessee's obligations under this Master
Lease Agreement will be vitiated if the remedy pursued
pursuant to Section 16 otherwise affects the Deed of
Trust with Assignment of Rents in such a manner to
preclude Lessor from effecting a discharge of the Deed
of Trust with Assignment of Rents.
Lessor agrees to release such portions of the above
described property from the Deed of Trust as may be
reasonably requested by Lessee to enable Lessee to
complete financing and construction of expansions to
its rice drying and storage operation, provided that
Lessor, is left with Liens sufficient in its sole
judgment to adequately secure its position as secured
lender or Lessor of the Equipment to Lessee.
Lessee will not move the Equipment from the addresses
set forth in the Equipment Schedule without Lessor's
consent, which consent will not be unreasonably
withheld; PROVIDED, HOWEVER, that in no event will any
of the Equipment be moved to a location outside the
United States of America or to any jurisdiction within
the United States of America which has not adopted the
Uniform Commercial Code.
13. DESIGNATION OF OWNERSHIP. If at any time during
the term hereof, Lessee is supplied with labels, plates
or other markings stating that the Equipment is owned
by Lessor or is subject to any interest of Assignee,
Lessee agrees to affix and keep the same prominently
displayed on the Equipment. Lessee agrees to execute
and file Uniform Commercial Code financing statements
and any and all other instruments necessary to perfect
Lessor's or Assignee's interest in this Master
Equipment Lease, Promissory Note and Equipment
Schedule(s), the payment due hereunder or the
Equipment. Lessor may file a copy of this Master
Equipment Lease and appropriate Promissory Note or
Equipment Schedule(s) as a financing statement.
14. USE. Lessee shall use the Equipment in a careful
and proper manner in conformance with manufacturer's
specifications and shall comply with and conform to all
federal, state, municipal and other laws, ordinances
and regulations in any way relating to the possession,
use or maintenance of the Equipment.
15. DEFAULT. The occurrence of any of the following
events shall constitute an Event of Default and shall,
at the option of Lessor, terminate this Master
Equipment Lease and any or all Promissory Note or
Equipment Schedule(s) hereto involved with such Event
of Default and Lessee's right to possession of the
Equipment covered by such Promissory Note or Equipment
Schedule(s):
(a) The nonpayment by Lessee of any item of Rent
within 10 days of the date on which it is due.
(b) The failure by Lessee to perform or observe any
other term, covenant or condition of this Master
Equipment Lease or any Equipment Schedule, which is not
cured within 10 days after notice thereof from Lessor
or Assignee.
(c) Any affirmative act of insolvency by Lessee, or
the filing by Lessee of any petition or action under
any bankruptcy, reorganization, insolvency arrangement,
liquidation, dissolution or moratorium law, or any
other law or laws for the relief of, or relating to
debtors.
(d) The filing of any involuntary petition against
Lessee under any bankruptcy, reorganization,
insolvency, arrangement, liquidation, dissolution or
moratorium law or any other law for the relief of or
relating to debtors which
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ICON Financial Corp.-SHF Acquisition Corp.
April 3, 1997
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is not dismissed within 60 days thereafter, or the
appointment of any receiver, liquidator or trustee to
take possession of any substantial portion of the
properties of Lessee, unless the appointment is set
aside or ceases to be in effect within 60 days from the
date of said filing or appointment.
(e) The subjection of a substantial part of Lessee's
property or any Leased Item to any levy, seizure,
assignment or sale for or by any creditor or
governmental agency.
(f) The untruth of any representation or warranty made
by Lessee in this Master Equipment Lease or in any
Equipment Schedule or in any document furnished by
Lessee to Lessor or Assignee in connection with this
Master Equipment Lease or any Equipment Schedule or
with respect to the acquisition or use of the
Equipment.
(g) The occurrence of any material adverse change in
the business or financial condition of Lessee or
Guarantor(s). A material adverse change shall be
generally defined as a reduction in the Tangible Net
Worth of Lessee or Guarantor(s) of 20% or more
(determined in accordance with Generally Accepted
Accounting Principles), or the loss of Farmers' Rice
Coop as a customer for Lessee's Rice Drying and Storage
Services. The provisions of this sub-paragraph (g)
shall only apply during the period in which Promissory
Notes are in force, and eliminates Lessor's obligations
to enter into any further Promissory Notes or Equipment
hereunder. Once an Equipment Schedule has been entered
into, which by definition shall have superseded the
Promissory Notes, the provisions of this sub paragraph
"(g)" shall no longer apply.
16. REMEDIES. Upon the happening of events (a)
through (f), above:
(a) Lessee will, without demand, on the next Rent
payment date following the Event of Default, pay
to Lessor, as liquidated damages and not as a
penalty, an amount equal to the Casualty Value of
the Equipment set forth in Exhibit B together with
any Rent then due and owing by Lessee hereunder;
and
(b) Lessor may, without notice to or demand upon
Lessee, pursue any and all remedies available to
Lessor to the extent permissible under California
law including but not limited to California Real
Property Law and the California Commercial Code,
provided, however, that:
(i) In the event Lessor elects to
pursue the remedy of a sale of the Real
Property secured by the Deed of Trust and
Assignment of Rents, which is referred to
herein as the Additional Collateral, under
the power of sale contained in the Deed of
Trust and Assignment of Rents ("Trustee's
Sale"), then prior to delivery of the notice
of default as is required to proceed to a
Trustee's Sale under California law, Lessor
shall give Lessee written notice of Lessor's
election to proceed with a Trustee's Sale
(the "Lessor Election Notice"). Lessee shall
have the option (exercisable by written
notice to Lessor within five (5) days
following Lessee's receipt of the Lessor
Election Notice and otherwise deemed waived)
to use its diligent best efforts to market
and sell the Real Property, for a period of
ninety (90) days following the Lessor
Election Notice, for net cash proceeds in
excess of the amounts owing to Lessor under
this Master Equipment Lease and Promissory
Note or Equipment Schedule(s) or otherwise
upon terms acceptable to Lessor in its sole
discretion (a "Lessee Sale"), and during this
period and any extension thereof Lessee
agrees to provide Lessor with regular
detailed reports on the status and progress
of its efforts to arrange a Lessee Sale; and
(ii) In the event Lessee has elected to
proceed with a Lessee Sale and, at the
expiration of the initial 90-day period has
not completed a Lessee Sale but has entered
into a binding contract therefor to a third
party subject only to reasonable and standard
contingencies as reasonably determined by
Lessor (a "Contract of Sale"), then Lessor
shall allow Lessee an additional period not
to exceed ninety (90) days from the date of
such Contract of Sale (the "Extension
Period") to consummate the Lessee Sale (which
Extension Period shall terminate immediately
if the Contract of Sale is terminated for any
reason); and
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ICON Financial Corp.-SHF Acquisition Corp.
April 3, 1997
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(iii) In the event Lessee does not
complete a Lessee Sale or enter into a
Contract of Sale within the initial 90-day
period described above, or if Lessee has not
completed a Lessee Sale within the Extension
Period, Lessor shall thereafter be free to
proceed to deliver a notice of default as is
required to proceed to a Trustee's Sale under
California law and thereafter to proceed
under the following paragraph; and
in the event of any form of sale of the Equipment
or the Additional Collateral, apply or pay the
proceeds of such sale, including the proceeds of
any Lessee Sale or Trustee's Sale described in
clause (i) above (collectively "Proceeds"), (A)
FIRST, to pay all costs and expenses, including
reasonable legal fees and disbursements, incurred
by Lessor as a result of the default and the
exercise of its remedies with respect thereto, and
(B) SECOND, to pay Lessor an amount equal to any
unpaid Rent due and payable accrued to the date of
Lessor's receipt thereof, plus the Casualty Value
applicable as of such date (or if such date occurs
prior to the Rent Commencement Date or after the
expiration date of the Lease, the Casualty Value
as of the Rent Commencement Date or the last
Monthly Rent Payment Date, as the case may be), to
the extent not previously paid by Lessee (the sum
of clause (A) and clause (B) hereinafter "Lessor's
Damages"). Any deficiency of the Proceeds below
Lessor's Damages ("Deficiency") shall be
immediately paid by Lessee to Lessor (Lessee
hereby waiving to the extent permitted by law any
anti-deficiency rights it may have under
applicable law); any surplus of the Proceeds
remaining after full satisfaction of Lessor's
Damages shall be paid to Lessee. To the extent
and for so long as Lessee has not paid Lessor the
amount specified in this Section 16, Lessee will
pay to Lessor interest on Lessor's Damages at the
Late Payment Rate as defined in the applicable
Promissory Note or Equipment Schedule, computed
from the date of Lessee's default hereunder until
such amounts are paid.
The exercise of any of the foregoing remedies by Lessor
will not constitute a termination of this Master
Equipment Lease or any Promissory Note or Equipment
Schedule unless Lessor so notifies Lessee. No remedy
referred to in this Section 16 is intended to be
exclusive, but each shall be cumulative and in addition
to any other remedy referred to above or otherwise
available to Lessor at law or in equity.
In an Event of Default resulting from any of the events
described in Section of 15(g), above, Lessor shall have
the option to either: (1) declare the then Casualty
Value immediately due and payable; (2) declare the then
Casualty Value payable over the next twelve months at
an interest rate of 7.65%; or (3) allow the terms and
conditions of the Lease to continue without amendment.
17. SPECIAL TERMS. Any special terms set forth in one
or more Exhibits, Schedules, Addenda or Riders to this
Master Equipment Lease as they apply to the applicable
Promissory Note or Equipment Schedule(s) will be
applicable as though fully set forth herein.
18. MISCELLANEOUS.
(a) EFFECT OF WAIVER. No delay or omission to
exercise any right or remedy accruing to Lessor upon
any breach or default of Lessee will impair any such
right or remedy or be construed to be a waiver of any
such breach or default, nor will a waiver of any single
breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring.
Any waiver, permit, consent or approval on the part of
Lessor of any breach or default under this Master
Equipment Lease, or any Promissory Note or Equipment
Schedule or of any provision or condition hereof, must
be in writing and will be effective only to the extent
in such writing specifically set forth. All remedies,
either under this Master Equipment Lease, or at law or
in equity or otherwise afforded to Lessor, are
cumulative and not alternate.
(b) NOTICES. Any notice required or permitted to be
given by the provisions hereof must be in writing and
will be conclusively deemed to have been received by a
party hereto on the day it is delivered to such party
at the address indicated below (or at such other
address as such party specifies to the other party in
writing) or, if sent by certified mail, on the fifth
business day after the day on which mailed, addressed
to such party at such address:
Master Equipment Lease
ICON Financial Corp.-SHF Acquisition Corp.
April 3, 1997
Page 8 of 9
IF TO LESSOR: ICON Financial Corp.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
IF TO LESSEE: As set forth in the applicable
Promissory Note or Equipment
Schedule.
(c) ATTORNEYS' FEES AND COSTS. In the event of any
action at law or suit in equity in relation to this
Master Equipment Lease or any Promissory Note or
Equipment Schedule, the prevailing party will be
entitled to a reasonable sum for its attorneys' fees
and costs. The terms of this section shall not be
deemed to amend or supersede the provisions of Section
9 or 17 with respect to attorneys' fees.
(d) APPLICABLE LAW. This Master Equipment Lease and
Promissory Note or Equipment Schedule(s) will be
governed by and construed in accordance with, the laws
of the State of California.
(e) SECURITY INTEREST.
(i) Each executed copy of this Master Equipment
Lease will be an original. To the extent, if any,
that this Master Equipment Lease constitutes
chattel paper (as such term is defined in the
Uniform Commercial Code as in effect in any
applicable jurisdiction) no security interest in
this Master Equipment Lease may be created through
the transfer or possession of any counterpart
other than an Original. Although this Master
Equipment Lease is dated as of the date first
above written for convenience, the actual date or
dates of execution hereof by the parties hereto is
or are, respectively, the date or dates set forth
opposite the signatures hereto and this Master
Equipment Lease is effective on the latest of such
dates.
(ii) There shall be only one original of the
Promissory Note or Equipment Schedule to the
Master Equipment Lease, and it shall be marked
"Original," and all other counterparts will be
duplicates. To the extent, if any, that any
Promissory Note or Equipment Schedule(s) to this
Master Equipment Lease constitutes chattel paper
(as such term is defined in the Uniform Commercial
Code as in effect in any applicable jurisdiction)
no security interest in any Promissory Note or
Equipment Schedule(s) may be created in any
document(s) other than the "Original."
(f) SUSPENSION OF OBLIGATIONS OF LESSOR. The
obligations of Lessor hereunder will be suspended to
the extent that it is hindered or prevented from
complying therewith because of labor disturbances,
including, but not limited to, strikes and lockouts,
acts of God, fires, storms, accidents, failure of the
manufacturer to deliver any item of Equipment,
governmental regulations or interference or any cause
whatsoever not within the sole and exclusive control of
Lessor.
(g) FINANCIAL STATEMENTS. Lessee agrees promptly to
furnish, or cause to be furnished, to Lessor and
Assignee such financial or other statements respecting
the condition, operations and affairs of Lessee or
respecting the Equipment as Lessor or Assignee may from
time to time reasonably request.
(h) ENTIRE AGREEMENT. Lessor and Lessee acknowledge
that there are no agreements or understandings, written
or oral, between Lessor and Lessee with respect to the
Equipment, other than as set forth herein together with
any addendum, riders or exhibits attached hereto, and
in the Promissory Note or Equipment Schedule and that
this Master Equipment Lease and the Letters, and the
Promissory Note or Equipment Schedule contain the
entire agreement between Lessor and Lessee with respect
thereto. Neither this Master Equipment Lease nor the
Letters, Promissory Note or Equipment Schedule may be
altered, modified, terminated or discharged except by a
writing signed by the party against whom such
alteration, modification or discharge is sought.
(i) INVESTMENT TAX CREDIT. Investment Tax Credits
which may be available as to the Equipment under the
United States Federal Income Tax Laws shall be claimed
by Lessee.
(j) SEVERABILITY. Any provision of this Master
Equipment Lease or any Promissory Note or Equipment
Schedule prohibited by or unlawful or unenforceable
under any applicable law or any jurisdiction shall, at
the sole option of the Lessor, be ineffective as to
such jurisdiction without invalidating the remaining
provisions of this Master Equipment Lease or such
Promissory Note or Equipment Schedule; provided,
however, that to the extent that the provisions of any
such applicable law can be waived, they are hereby
waived by Lessee.
(k) NONSPECIFIED FEATURES. If the Equipment delivered
pursuant to any Promissory Note or Equipment Schedule
contains any features not specified therein, Lessee
grants Lessor, at Lessor's option and Lessor's expense,
the
Master Equipment Lease
ICON Financial Corp.-SHF Acquisition Corp.
April 3, 1997
Page 9 of 9
right to remove or deactivate any of such features.
Such removal or deactivation shall be performed by the
manufacturer or another party acceptable to Lessee upon
the request of Lessor, at a time convenient to Lessee,
provided that Lessee shall not unreasonably delay the
removal of such features.
(j) QUIET ENJOYMENT. Provided that no Event of
Default has occurred or is continuing hereunder,
Lessor, Assignee or their agents or assigns shall not
interfere with Lessee's right of quiet enjoyment and
use of the Equipment.
(m) GUARANTY. If Lessee is a subsidiary of another
entity, Lessee will secure, upon request of Lessor, a
guaranty from such parent, on the form provided by
Lessor, whereby such parent guaranties, and undertakes
as a surety, all financial and other obligations of
Lessee under this Master Equipment Lease and any
Promissory Note or Equipment Schedule thereto.
(n) SURVIVAL OF OBLIGATIONS. All agreements,
representations and warranties, including, without
limitation the obligation with respect to
indemnification provided in Section 9 hereof, contained
in this Master Equipment Lease or in any document or
certificate delivered pursuant hereto or in connection
therewith, shall survive the execution and delivery of
this Master Equipment Lease and the expiration or other
termination of the Master Equipment Lease.
(o) SUBSTITUTION. Lessor may, upon written notice to
Lessee, provide Equipment with different serial numbers
and locations than those shown on the Equipment
Schedule if Lessor determines that it is in the best
interest of both Lessee and Lessor to do so. Any such
substituted Equipment will meet or exceed
specifications of Equipment specified on the Equipment
Schedule.
(p) ALTERATIONS. Lessee shall be permitted, with
Lessor's consent and at its own expense, to make
alterations or improvements to the Equipment which are
readily removable without causing material damage to
the Equipment and do not adversely affect any
manufacturer's warranties with respect to such
equipment.
(q) HEADINGS. Section headings are for convenience
only and shall not be construed as part of this Master
Equipment Lease.
IN WITNESS WHEREOF, Lessor and Lessee have caused this
Master Equipment Lease to be duly executed all as of
the date first above written.
LESSOR LESSEE
ICON FINANCIAL CORP. SHF ACQUISITION CORPORATION
By: /s/ By: /s/ Xxxxx X. Xxxx
Title: Title: President
Date: Date: May 19, 1997
IFCmaster.doc
EXHIBIT A
PROMISSORY NOTE
$1,150,000.00
April 3, 1997
FOR VALUE RECEIVED, the undersigned (hereinafter
called the "Borrower") promises to pay to the order of
ICON Cash Flow Partners, L.P., Series E (hereinafter
called "ICON"), at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx
Xxxx 00000, or at such other place as may be designated
in writing by the holder of this Note, the amounts
advanced to the Borrower pursuant to the terms of that
certain letter agreement dated February 10,1997 (as
modified by that certain letter agreement dated March
21, 1997) between Borrower and ICON Financial Corp.
(together, the "Letter Agreement"), in an amount not to
exceed the principal amount of One Million One Hundred
Fifty Thousand Dollars ($1,150,000.00), together with
interest thereon at a rate of 12% per annum. The
interest shall be payable on the first day of the month
following the first advance and on the first day of
each month thereafter with all unpaid and accrued
interest being payable on or before the date which is
30 days following the final Installation Date of the
Rice Drying Facility being financed hereby, but in no
event later than December 31, 1997 (herein the "Due
Date).
The Borrower has executed and delivered to ICON a
Master Lease Agreement dated as of April 3, 1997 in
connection with this Note ("Master Lease Agreement")
and this Note is secured by the Equipment described in
Exhibit "A" hereto, and the real property described on
that certain Deed of Trust with Assignment of Rents
dated as of April ___, 1997. Except to the extent
inconsistent herewith, the terms and conditions of the
Master Lease Agreement are hereby incorporated herein
by this reference.
The obligations of Borrower under this Note shall
be deemed satisfied by either: (i) the completion of
construction of the Equipment and Borrower's signing
and delivery of an Equipment Schedule and Certificate
of Delivery and Acceptance substantially in the form of
Exhibit "B" hereto and as contemplated by the Letter
Agreement; or (ii) the prepayment by Borrower of this
Note, in whole but not in part, upon not less than
thirty (30) days prior written notice to ICON, in an
amount equal to: (a) the unpaid principal remaining
plus all interest accrued thereon; (b) any late charges
outstanding hereunder; (c) any additional obligations
due or outstanding under or related to this Note or the
Master Lease Agreement; and (d) a prepayment premium
calculated by multiplying the sum of (a), (b) and (c)
above by 10%.
If the Borrower fails to pay any interest
installment on its due date, which failure continues
for a period of five (5) days, Borrower shall pay a
late charge equal to two percent (2%) per month on the
amount of such late installment from the due date of
such installment to the date of payment (or, if sooner,
the date upon which ICON makes the declaration
described in the following sentence), but only to the
extent permitted by law. In the event that (a) such
interest installment remains unpaid for a period of
fifteen days after Borrower's receipt of notice of non-
payment thereof, or (b) Borrower shall not have fully
satisfied its obligations hereunder as set forth in the
previous paragraph on or before the Due Date and such
failure continues for a period of ten days after
Borrower's receipt of notice of such non-performance,
or (c) an Event of Default shall have occurred and be
continuing under the Master Lease Agreement following
written notice and the expiration of the applicable
cure period set out therein, then, in any such event,
ICON may, at its option and without further notice to
the Borrower, declare the entire unpaid balance of the
principal, accrued interest, accrued late charges, and
other sums due hereunder and under the Master Lease
Agreement immediately due and payable, with interest
thereafter at the rate of 18% per annum or the maximum
amount permitted by law, whichever is less,
-1-
until fully paid; and if such entire amount is not paid
in full to ICON within thirty (30) days following
Borrower's receipt of notice of any such default, as
liquidated damages, Borrower shall also pay to ICON an
amount equal to ten percent (10%) of such entire
balance, together with interest thereon at 18% per
annum or the highest rate permitted by law, whichever
is less. Reference is made to the Master Lease
Agreement for a statement of the rights of ICON with
respect to the collateral securing this Note other
remedies.
In the event that ICON institutes an action upon
this Note or pursuant to the Master Lease Agreement,
the Borrower shall pay, in addition to unpaid
principal, interest, penalty and unpaid late charges,
the expenditures incurred by ICON, in enforcing
collection of this Note and its rights under the Master
Lease Agreement, including all reasonable attorney
fees. In addition, if the Borrower defaults under this
Note, then ICON shall be entitled to all the rights and
remedies of a secured party under the Uniform
Commercial Code, applicable California real property
law, and as set forth in the Master Lease Agreement.
THE BORROWER AND ICON WAIVE ALL RIGHTS TO A JURY TRIAL
IN ANY ACTION OR PROCEEDING BASED UPON THIS NOTE.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF ICON
AND THE BORROWER HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA.
This Note and the Master Lease Agreement may not
be modified or discharged, in whole or in part, and no
right or remedy of ICON hereunder or under any other
agreement may be waived except by a written agreement
signed by ICON.
SHF Acquisition Corp.
BY:
TITLE:
SHFNote.doc/
-2-
EXHIBIT B
TO
MASTER LEASE AGREEMENT
DATED APRIL 3, 1997
EQUIPMENT SCHEDULE
TO
MASTER EQUIPMENT LEASE DATED APRIL 3, 1997
Equipment Schedule Date: [Date X, below].
LESSEE: LESSOR:
SHF Acquisition Corp. ICON Capital Corporation
0000 Xxxxx Xxxxxxx Xxxxxx, #000 0 Xxxxxxxxxxx Xxxxxx, #000
Xxx Xxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Address for Notices: Billing Reference:
Same as above. Xxxxx Xxxxx
Location of Equipment: Davis California
Expected Delivery Date: [Date X-this shall be the date
the Project is declared
complete by both parties].
Equipment Description: Rice drying Tower, and
ancillary equipment
Total Equipment Cost: $1,650,000, of which
$1,150,000 is financed
hereunder.
Installation Date: [Date X].
Rent Commencement Date: Shall be the last day of the
month following [Date X]. An
amount equal to 1/30th of the
monthly Rental for each Leased
Item of Equipment times the
number of days which have
elapsed from the Installation
Date to the Rent Commencement
Date shall be payable on the
Rent Commencement Date. The
period from the Installation
Date to the Rent Commencement
Date shall be called the
"Interim Lease Term."
Lease Term: 60 months plus the Interim
Lease Term, if any. Rent is
due, in advance, on the last
day of each month during the
Lease Term.
Exhibit B to Master Lease Agreement
April 3, 1997
Page 2 of 2
Late Payment Rate: Interest for overdue Rent shall
equal the lesser of 1.5% per
month, or the maximum amount
allowable by law.
Total Monthly Rent: [2.202%, (subject to change per
the CAPITAL MARKETS ADJUSTMENT
section of the February 10, 1997
Letter), times the funded
Equipment Cost-] payable monthly,
in advance on the 30th day of each
month. Both the first and the
last payment shall be due on [Date
X].
Prepayment: Lessee shall have the right to
prepay the Rent due hereunder by
paying to Lessor the present value
of the then remaining Rent
discounted by using the applicable
interest rate provided to Lessee
by Lessor, plus the following
penalty (penalty is based on a
percentage of the present value as
calculated above):
Year of Penalty
Prepayment:
1-2 4.0%
3-4 3.0%
5 2.0%
Investment Tax Credit:: Any available Investment Tax
Credit will be for the account of
the Lessee.
Effectiveness: This Equipment Schedule shall not
be binding and effective until
executed by both Lessor and
Lessee.
Master Lease: This Equipment Schedule is issued
pursuant to the Master Equipment
Lease identified.
Equipment Obligation: In the event the Equipment is
being delivered from the
manufacturer, Lessor's obligation
to provide the Equipment is
predicated on Lessor's succeeding
to the on-order position of Lessee
with the manufacturer
Master Lease: This Equipment Schedule is issued
pursuant to the Master Equipment
Lease Agreement between Lessor and
Lessee dated [ ].
LESSEE: LESSOR:
SHF ACQUISITION CORP. ICON CAPITAL CORP.
By: By:
Title: Title:
Date: Date:
EXHIBIT D-1
[ICON Financial Corp. Letterhead]
March 21, 1997
Xx. Xxxxx Xxxx
SHF Acquisition Corp.
0000 Xxxxx Xxxxxxx Xxxxxx, #000
Xxx Xxxxx, XX 00000
Dear Xx. Xxxx:
Enclosed please find the following documents which
shall constitute the necessary documentation for the
funding of the rice dryer in Davis, California:
1. Master Lease Agreement
2. Promissory Note ("Note")
The PROGRESS PAYMENTS, COMMITMENT FEE, and LESSOR'S
EXPENSES portions of the February 10, 1997 letter,
appearing herein as Exhibit D to the Master Lease
Agreement, shall be modified and shall hereinafter be
read as follows:
PROGRESS Lessor shall participate in the funding of
PAYMENTS: construction costs as they are due, on the basis
that Lessee pay the first $200,000 of such
expenses, and 50% of the next $600,000, as long as
the required payments are not significantly in
advance of the following schedule, and further that
Lessor shall not be required to make any payments
in an amount less than $50,000:
Est. Total SHF to ICON to
Payment Pay Pay
May 375,000 290,000 85,000
June 435,000 210,000 225,000
July 435,000 0 435,000
Aug-Sept 407,000 2,000 405,000
$1,652,000 $500,000 $1,150,000
Progress payment fundings shall be charged interest
only at 12% per annum, payable monthly on the
outstanding balance.
They shall then be rolled into the Lease Financing
as of the Base Lease Commencement Date. Should the
project not
[ICON LOGO] SHF Acquisition Corp.-ICON Financial Corp.
March 21, 1997
Page 2 of 2
be completed by December 31, 1997 the notes
shall be payable on demand.
Lessor shall make the Progress Payments
timely when billed by the Contractor, and
after such bills have been approved by
Lessee, no later than the later of: 15 days
after receipt of approved invoices from
Lessee; or two business days after Lessee
has provided evidence of such payment to
Lessor in the form of copies of the checks,
(Lessor shall further confirm that such
such payment(s) have been made by calling
the contractor). Lessor shall have no
obligation to fund hereunder until all of
the above referenced documents have been
properly executed by Lessee. Lessor agrees
that if it does not deliver the first
payment as required above that it will
promptly reconvey the Deed of Trust to
Lessee.
COMMITMENT FEES: Upon acceptance of this Commitment and the
satisfactory review of the documentation,
Lessee shall deposit with Lessor $30,000 as
a commitment fee. This commitment fee
shall be deemed earned upon receipt and is
non-refundable. If funding does not occur
through no fault of Lessor, Lessor shall
retain said deposit as an earned fee.
$14,000 of the fee shall be applied to
payments due from Lessee to Lessor after
Lessor has funded a cumulative amount of
$575,000.
LESSOR'S EXPENSES: Lessee will be responsible for and will
reimburse Lessor the full amount of all out
of pocket costs. Such costs shall not
exceed $1,000 without the prior consent of
Lessee.
Additionally, Lessee shall pay a $750.00
documentation fee at closing, plus $250 for
each progress payment requested. A
Progress Payment shall be defined as a
funding package, which may contain requests
for multiple checks so long as each such
check is in an amount of $50,000 or more,
in which case only one charge of $250 shall
apply to such package.
Sincerely, Agreed: SHF Acquisition Corp.
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxx
Xxxxxxx X. Xxxxxxx Title: President
Managing Director
Date: May 19, 1997
EXHIBIT D-2
[ICON Financial Corp. Letterhead]
February 10, 1997
Xx. Xxxxx Xxxx
SHF Acquisition Corp.
0000 Xxxxx Xxxxxxx Xxxxxx, #000
Xxx Xxxxx, XX 00000
Dear Xx. Xxxx:
We are most pleased to present SHF Acquisition Corp. with the
following revised financing commitment for your review and
acceptance. This proposal is subject to the final review and
credit approval by the Executive Committees of the Lessor.
LESSOR: ICON Capital Corp. or its assignee(s).
LESSEE: SHF Acquisition Corp.
GUARANTORS: M & R Investment Company, and Dunes
Hotels and Casinos Corporation.
TRANSACTION
TYPE: Finance Lease.
ADDITIONAL
COLLATERAL: Lessee shall provide Lessor with a first
mortgage on two of the three contiguous
parcels of land upon which the Dryer is
to be sited and the Rice Storage
Building. An appraisal shall be
required which shows the orderly
liquidation value of the additional
collateral to be greater than $1.5
million. Lessee shall bear the cost of
this appraisal.
EQUIPMENT: One new rice drying facility.
FACILITY COST: $1,650,000.
BASE LEASE TERM: 60 months.
LEASE AMOUNT: Not less than 70% of total facility cost
or $1,150,000.
FUNDING DATE: February, 1997, through August, 1997.
SHF Acquisition Corp.-ICON Financial Corp.
February 10, 1997
Page 2 of 4
RENTAL FACTOR: Lessee shall make 60 equal monthly payments, the
first and last of which shall be in advance, of
2.202% of funded cost.
COMMITMENT Upon acceptance of this Commitment and the
FEES: satisfactory review of the documentation, Lessee
shall deposit with Lessor $30,000 as a commitment
fee. This commitment fee shall be deemed earned
upon receipt and is non-refundable. If funding
does not occur through no fault of Lessor, Lessor
shall retain said deposit as an earned fee.
Lessor shall remit $16,000 of said fee to
Fidelity Leasing Corporation for its role in
structuring the transaction.
The remaining $14,000 shall be applied to the
first payments due from Lessee upon Funding.
END OF LEASE: At the end of the Base Lease Term, Lessee shall
have the option to purchase not less than all of
the Equipment for $1.00.
CAPITAL The Rental Factor quoted herein shall be subject
MARKETS to change as the yield on 5 Year Constant
ADJUSTMENT: Maturity U.S. Treasury Notes (Treasuries) changes
up until the Base Lease Commencement Date. As of
the Final Funding Date, the Rental Factor shall
increase or decrease by .0005% for each basis
point that Treasuries are above 6.40% or below
6.20%. (The Rentals shall remain fixed
thereafter.)
PROGRESS Lessor shall participate in the funding of
PAYMENTS: construction costs as they are due, on the basis
that Lessee pay the first $200,000 of such
expenses, and 50% of the next $600,000, as long
as the required payments are not significantly in
advance of the following schedule:
Est. Total SHF to ICON to
Payment Pay Pay
Februa $150,000 $150,000 $0
ry
March 300,000 175,000 125,000
April 150,000 75,000 75,000
May 300,000 100,000 200,000
June 300,000 0 300,000
July 300,000 0 300,000
August 150,000 0 150,000
$1,650,000 $500,000 $1,150,000
SHF Acquisition Corp.-ICON Financial Corp.
February 10, 1997
Page 3 of 4
Progress payment fundings shall be
charged interest only at 13% per annum,
payable monthly on the outstanding
balance. They shall then be rolled into
the Lease Financing as of the Base Lease
Commencement Date. Should the project
not be completed by December 31, 1997,
the notes shall be payable on demand.
LESSOR'S EXPENSES: Lessee will be responsible for and will
reimburse Lessor the full amount of all
out of pocket costs. Such costs shall
not exceed $1,000 without the prior
consent of Lessee.
Additionally, Lessee shall pay a $750.00
documentation fee at closing, plus $250
for each progress payment requested.
INTERIM RENT: Interim Rent shall be payable at the
daily equivalent of the monthly Payment
from the Final Funding Date until the
Base Lease Commencement Date.
MATERIAL ADVERSE
CHANGE: Lessor's shall have no obligation to
fund the subject Lease, or to continue
Progress Payments should a material
adverse change in the business or
financial condition of Lessee or
Guarantor(s) occur. A material adverse
change shall be generally defined as a
reduction in the Tangible Net Worth of
Lessee or Guarantor(s) of 20% or more,
(determined in accordance with Generally
Accepted Accounting Principles), or the
loss of Farmers' Rice Coop as a customer
for Lessee's Rice Drying and Storage
services.
FINANCIAL
STATEMENTS: Lessee shall provide Lessor with
financial statements and other financial
information as Lessor shall reasonably
request on itself and the guarantors
from the date of its acceptance of this
commitment through the end of the Lease
Term.
INSURANCE: Lessee shall maintain all risk property
damages and liability insurance on the
Equipment Leased and the Additional
Collateral in form and amount and with
such insurers as Lessor shall reasonably
request. Lessor shall be named as
additional insured on liability coverage
and as loss payee on property damage
insurance as its interests may appear.
SHF Acquisition Corp.-ICON Financial Corp.
February 10, 1997
Page 4 of 4
DOCUMENTATION: The completion of the transaction is
subject to the execution of mutually
acceptable documentation.
The foregoing commitment expires on February 17, 1997 unless it
is accepted on or before that date as evidenced by Lessee's
counter-executing a copy of this letter and returning it to the
Lessor.
We look forward to doing business with your fine company.
Sincerely,
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Managing Director Accepted:SHF Acquisition Corp.
By /s/ Xxxxx X. Xxxx
Title President
Date May 19, 1997
EXHIBIT E
TO
MASTER LEASE AGREEMENT
DATED APRIL 3, 1997
CASUALTY VALUES
Casualty Value
After as
Payment Number a % of Total
Funded Amount
1 102.28
2 100.98
3 99.68
4 98.36
5 97.02
6 95.67
7 94.31
8 92.93
9 91.54
10 90.13
11 88.71
12 87.28
13 85.83
14 84.36
15 82.88
16 81.38
17 79.87
18 78.35
19 76.80
20 75.24
21 73.67
22 72.08
23 70.47
24 68.84
25 67.20
26 65.54
27 63.87
28 62.18
29 60.47
30 58.74
31 56.99
32 55.23
33 53.44
34 51.64
35 49.82
36 47.98
37 46.13
38 44.25
39 42.35
40 40.43
41 38.50
42 36.54
43 34.57
44 32.57
45 30.55
46 28.51
47 26.45
48 24.37
49 22.27
50 20.14
51 18.00
52 15.83
53 13.64
54 11.42
55 9.18
56 6.92
57 4.64
58 2.33
59 0.00
PROMISSORY NOTE
$1,150,000.00 April 3, 1997
FOR VALUE RECEIVED, the undersigned (hereinafter
called the "Borrower") promises to pay to the order of
ICON Cash Flow Partners, L.P., Series E (hereinafter
called "ICON"), at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx
Xxxx 00000, or at such other place as may be designated
in writing by the holder of this Note, the amounts
advanced to the Borrower pursuant to the terms of that
certain letter agreement dated February 10,1997 (as
modified by that certain letter agreement dated March
21, 1997) between Borrower and ICON Financial Corp.
(together, the "Letter Agreement"), in an amount not to
exceed the principal amount of One Million One Hundred
Fifty Thousand Dollars ($1,150,000.00), together with
interest thereon at a rate of 12% per annum. The
interest shall be payable on the first day of the month
following the first advance and on the first day of
each month thereafter with all unpaid and accrued
interest being payable on or before the date which is
30 days following the final Installation Date of the
Rice Drying Facility being financed hereby, but in no
event later than December 31, 1997 (herein the "Due
Date).
The Borrower has executed and delivered to ICON a
Master Lease Agreement dated as of April 3, 1997 in
connection with this Note ("Master Lease Agreement")
and this Note is secured by the Equipment described in
Exhibit "A" hereto, and the real property described on
that certain Deed of Trust with Assignment of Rents
dated as of April __, 1997. Except to the extent
inconsistent herewith, the terms and conditions of the
Master Lease Agreement are hereby incorporated herein
by this reference.
The obligations of Borrower under this Note shall
be deemed satisfied by either: (i) the completion of
construction of the Equipment and Borrower's signing
and delivery of an Equipment Schedule and Certificate
of Delivery and Acceptance substantially in the form of
Exhibit "B" hereto and as contemplated by the Letter
Agreement; or (ii) the prepayment by Borrower of this
Note, in whole but not in part, upon not less than
thirty (30) days prior written notice to ICON, in an
amount equal to: (a) the unpaid principal remaining
plus all interest accrued thereon; (b) any late charges
outstanding hereunder; (c) any additional obligations
due or outstanding under or related to this Note or the
Master Lease Agreement; and (d) a prepayment premium
calculated by multiplying the sum of (a), (b) and (c)
above by 10%.
If the Borrower fails to pay any interest
installment on its due date, which failure continues
for a period of five (5) days, Borrower shall pay a
late charge equal to two percent (2%) per month on the
amount of such late installment from the due date of
such installment to the date of payment (or, if sooner,
the date upon which ICON makes the declaration
described in the following sentence), but only to the
extent permitted by law. In the event that (a) such
interest installment remains unpaid for a period of
fifteen days after Borrower's receipt of notice of non-
payment thereof, or (b) Borrower shall not have fully
satisfied its obligations hereunder as set forth in the
previous paragraph on or before the Due Date and such
failure continues for a period of ten days after
Borrower's receipt of notice of such non-performance,
or (c) an Event of Default shall have occurred and be
continuing under the Master Lease Agreement following
written notice and the expiration of the applicable
cure period set out therein, then, in any such event,
ICON may, at its opti on and without further notice to
the Borrower, declare the entire unpaid balance of
the principal, accrued interest, accrued late charges,
and other sums due hereunder and under the Master Lease
Agreement immediately due and payable, with interest
thereafter at the rate of 18% per annum or the maximum
amount permitted by law, whichever is less,
-1-
until fully paid; and if such entire amount is not paid
in full to ICON within thirty (30) days following
Borrower's receipt of notice of any such default, as
liquidated damages, Borrower shall also pay to ICON
an amount equal to ten percent (10%) of such entire
balance, together with interest thereon at 18% per annum
or the highest rate permitted by law, whichever is less.
Reference is made to the Master Lease Agreement for a
statement of the rights of ICON with respect to the
collateral securing this Note other remedies.
In the event that ICON institutes an action upon
this Note or pursuant to the Master Lease Agreement,
the Borrower shall pay, in addition to unpaid
principal, interest, penalty and unpaid late charges,
the expenditures incurred by ICON, in enforcing
collection of this Note and its rights under the Master
Lease Agreement, including all reasonable attorney
fees. In addition, if the Borrower defaults under this
Note, then ICON shall be entitled to all the rights and
remedies of a secured party under the Uniform
Commercial Code, applicable California real property
law, and as set forth in the Master Lease Agreement.
THE BORROWER AND ICON WAIVE ALL RIGHTS TO A JURY TRIAL
IN ANY ACTION OR PROCEEDING BASED UPON THIS NOTE.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF ICON
AND THE BORROWER HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA.
This Note and the Master Lease Agreement may not
be modified or discharged, in whole or in part, and no
right or remedy of ICON hereunder or under any other
agreement may be waived except by a written agreement
signed by ICON.
SHF Acquisition Corp.
BY: /s/ Xxxxx X. Xxxx
TITLE: President
-2-
GUARANTY
This Guaranty is made, effective as of the date of
execution set forth below, by DUNES HOTELS AND CASINOS
INC., a New York corporation of 000 Xx.Xxxxxxx Xxxxxx,
#000, Xxx Xxxxx, Xxxxxx 00000 ("Guarantor") to ICON
FINANCIAL CORP., of 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx,
Xxx Xxxx 00000, and its successors and assigns
("Lessor"), with respect to the obligations of SHF
Acquisition Corporation, a Nevada corporation, of 4045
x. Xxxxxxx Xxxxxx, #000, Xxx Xxxxx, Xxxxxx 00000
("Lessee") under that certain Master Lease Agreement
dated as of April 3, 1997, including without limitation
the letter agreement between Lessor and Lessee with
respect thereto dated as of February 10, 1997 and
modified as of March 21, 1997 and any Promissory Note
and Equipment Schedule thereunder (collectively, the
"Lease"). Capitalized terms used in this Guaranty and
not otherwise defined herein shall have the meanings
given to them in the Lease.
INTRODUCTION
Guarantor desires to induce Lessor to acquire,
finance and lease certain facilities and equipment
(such facilities and equipment and all substitutions,
replacements, accessions and additions thereto
hereinafter called the "Equipment") to Lessee, a direct
or indirect wholly owned subsidiary of Guarantor,
pursuant to the Lease in order to enhance and protect
Guarantor's financial interest in Lessee, and in order
to promote Guarantor's general business enterprise.
IN CONSIDERATION of the foregoing matters, for ten
dollars, and other valuable consideration, the receipt
and sufficiency of each of which is acknowledged,
Guarantor covenants and agrees as follows:
1. GUARANTY. Guarantor guarantees the full and
punctual payment, performance and observance of all
debts, obligations and liabilities of Lessee to Lessor,
whether now existing or subsequently arising,
liquidated or unliquidated, absolute or contingent, now
due or hereafter falling due, arising out of or in
connection with the Lease including the full, prompt
and complete performance by the Lessee of all of the
terms and conditions contained in the Lease to be kept
and performed by the Lessee, together with all costs of
collection, including reasonably attorneys' fees (all
of the foregoing, collectively, the "Obligations").
2. CONTINUING GUARANTY. This is a continuing
guaranty of payment and performance, which shall apply
to all Obligations which now exist or subsequently
arise, whether or not notice of such Obligations is
given to Guarantor, whether or not any or all prior
Obligations had been fully paid, performed and observed
before any such Obligations arose, and notwithstanding
Guarantor's dissolution. The Lease specifically allows
for several acceptances of Equipment by Lessee, and
Guarantor waives notices of each such acceptances or
deliveries of Equipment, in whole or in part. This
Guaranty may be terminated by the Guarantor only as of
the date on which the Guarantor has received written
notice from the Lessor stating that the Lessee has
fully paid and performed all of the Obligations.
3. OTHER RIGHTS, REMEDIES, SECURITY AND
OBLIGATIONS Guarantor's liability is direct, primary
and unconditional, and, except as set forth below in
this paragraph, may be enforced by Lessor without first
resorting to any other right, remedy or security,
including without limitation any right or remedy
against Lessee, the Equipment, or against any other
person, partnership or entity which now is or may at
any time become liable with respect to any of the
Obligations, or against any security given by Lessee,
by Guarantor or by any other person. Notwithstanding
the foregoing or anything contained in this Guaranty to
the contrary, upon the occurrence and continuance of an
"Event of Default" under and as defined in the Lease,
Lessor shall first proceed against the Equipment and
the Additional Collateral, and provided that Lessor
proceeds against the Equipment and the Additional
Collateral in a manner consistent with applicable law
(and, in the case of a Trustee's Sale or a Lessee Sale,
with the provisions of Section 16(b) of the Lease),
Guarantor shall be liable
for the entire Deficiency together with interest
thereon at the Late Payment Rate and other sums due
under the Lease, notwithstanding any defenses or
limitations with respect thereto available to the
Lessee under applicable law (including without
limitation Lessee's anti-deficiency rights under
applicable California law), which are hereby waived by
Guarantor as to Guarantor. Guarantor's liability shall
not be discharged or diminished (w) by any waiver by
Lessor of any of the terms, covenants or conditions of
any of the Obligations, (x) by the granting of any
indulgence or extension of time to Lessee, (y) by any
modification, supplement or extension of any of the
Obligations, or (z) by any agreement or arrangement
with Lessee or anyone else. Lessor shall be entitled,
in its sole discretion, without discharging or
diminishing Guarantor's liability under this Guaranty,
(i) to apply any payment or transfer received from
Lessee, from Guarantor or from any person, to any of
the Obligations, or (ii) to apply any recovery from
security to any of the Obligations or to any other
debts, obligations or liabilities secured thereby,
whether or not then due, or (iii) to hold any such
payment, transfer or recovery from security as
additional security for any or all of the Obligations,
or for other debts, obligations or liabilities of
Lessee, or of the payor or transferor, or which were
secured by such security, whether or not then due.
4. UNLIMITED LIABILITY. Guarantor's liability
hereunder is unlimited in amount. Guarantor's liability
shall be joint and several with the liability of
Lessee.
5. WAIVER OF NOTICES, ETC Guarantor agrees, to
the greatest extent permitted by law, that Lessor shall
not be required to give Guarantor any notice pursuant
to this Guaranty, and that no failure to give any such
notice shall discharge or diminish the liability which
Guarantor would have had under this Guaranty if such
notice had been given. Guarantor waives, without
limitation, to the greatest extent permitted by law:
notice of acceptance of this Guaranty; notice of the
incurring or additional or increased Obligations;
notice of the application of any payment, transfer or
recovery from security; presentment, demand and protest
of any instrument, and notice thereof; notice of non-
payment of other default under this Guaranty or under
any Obligation; notice of foreclosure; notice of any
release, discharge, or modification of or failure to
obtain any security for any of the Obligations; notice
of any waiver by Lessor of any of the terms, covenants
or conditions or any of the Obligations; notice of the
granting of any indulgence or extension of time to
Lessee; notice of any modification, supplement or
extension of any of the Obligations; notice of any
agreement or arrangement with Lessee, or anyone else;
any right to exoneration or to require election of
remedies; and all suretyship defenses.
6. ACCELERATION. Guarantor shall, at Lessor's
option, without notice, immediately become liable for
the outstanding balance of all Obligations, whether or
not then due, (a) in the event of any failure by
Guarantor fully and punctually to pay, perform or
observe any debt, obligation or liability of Guarantor
under this Guaranty, (b) in the event that Lessee or
Guarantor becomes insolvent, or attempts to make a
composition, moratorium or similar agreement with its
creditors, or makes a general assignment for the
benefit of creditors or has a custodian or receiver
appointed for a substantial portion of its assets, or
(c) if a petition under the federal bankruptcy laws or
any moratorium, insolvency, receivership, or
reorganization proceeding is filed or commenced by or
against the Lessee or Guarantor, or (d) if Lessor would
be entitled to accelerate any of the Obligations but
for the fact that acceleration has been stayed or
enjoined, or (e) in the event of a default by Lessee
under any one or more of the Obligations.
7. UNENFORCEABILITY. In the event that any
Obligation is for any reason not legal, valid or
unenforceable against Lessee, or if any Obligation is
limited, modified, voided, released or discharged in
any proceeding under the federal bankruptcy laws or in
any moratorium, insolvency, receivership, arrangement
or reorganization proceeding, or if any Obligation is
subject to any setoff, direct or indirect counterclaim
or defense by Lessee against Lessor, Guarantor's
liability hereunder shall be the same as if such
Obligation were legal, valid and enforceable, and had
not been so limited, modified, voided, released or
discharged, and were
2
not subject to such setoff, counterclaim or defense.
If any payment or transfer to Lessor or recovery from
security by Lessor, which has been credited against any
Obligations, is voided or rescinded or required to
be resumed by Lessor, this Guaranty and any security
given by Guarantor for the Obligations or for this
Guaranty shall continue in effect or be reinstated
as though such payment, transfer or recovery had not
been made.
8. WAIVER OF SUBROGATION; SUBORDINATION;
INDEMNITY. Guarantor shall have no right of, and
hereby unconditionally and irrevocably agrees that it
will not at any time assert or exercise against Lessee
any right of subrogation, reimbursement, indemnity,
contribution or payment to the extent such rights may
otherwise have arisen, by reason of Guarantor's
performance, satisfaction or discharge of any or all of
the Obligations. All present and future debts,
obligations and liabilities of Lessee to Guarantor are
hereby waived and postponed in favor of and
subordinated to the full payment, performance and
observance of the Obligations, and Guarantor agrees to
assign and deliver to Lessor on request, as security
for this guaranty, (a) any such debts, obligations or
liabilities, (b) any instruments or documents
evidencing the same, (c) any security therefor, and
(d) any payments or transfers with respect thereto, or
recoveries on security therefor, received by Guarantor
after default under any of the Obligations. Guarantor
indemnifies and holds harmless Lessor and its
stockholders, directors, officers, trustees,
beneficiaries, agents, employees and persons acting by,
through, under or in concert with any of them, and any
of their successors, personal representatives or
assigns (collectively, the "Indemnitees") from and
against any liability, darnage, loss, cost or expense,
including reasonable attomeys' fees, incurred in
connection with any claim, suit or proceeding by Lessee
or anyone claiming out of or relating to the
Obligations, the transactions pursuant to which the
Obligations were incurred, or any actions by any of the
Indemnitees to enforce the Obligations or to recover on
security for the Obligations.
9. FINANCIAL STATEMENTS. Guarantor agrees
promptly to furnish, or cause to be furnished, to
Lessor such financial or other statements respecting
the condition, operations and affairs of Guarantor or
respecting the Equipment as Lessor may from time to
time reasonably request.
10. LEGAL ACTION. Any legal action to enforce
this Guaranty may be maintained alone, without first
proceeding against Lessee, any other person or any
security, or may be consolidated, at Lessor's election,
with any action or other proceeding against Lessee or
any other person. Lessor's books and records showing
the account between Lessor and Lessee shall be
admissible in any action or proceeding and shall
constitute prima facie proof of the items stated in
such books and records. Lessor's rights are cumulative
and shall not be exhausted by the exercise of its
rights against Guarantor in any number of actions,
except when and so long as all Obligations have been
fully paid, performed and observed, and have not been
reinstated by reason of the avoidance of any transfer,
the retum of any payment, or otherwise, in which event
Guarantor's liability under this Guaranty shall be
likewise reinstated. GUARANTOR CONSENTS TO THE
JURISDICTION AND VENUE IN THE SUPERIOR COURTS OF THE
STATE OF CALIFORNIA, AND, IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF CALIFORNIA, WITH RESPECT TO
ANY ACTION BY-LESSOR TO ENFORCE THIS GUARANTY.
GUARANTOR WAIVES ANY RIGHT TO A JURY TRIAL IN ANY
ACTION TO ENFORCE THIS GUARANTY. GUARANTOR ACKNOWLEDGES
THAT IT HAS REVIEWED THE FOREGOING WAIVER WITH ITS
LEGAL COUNSEL AND HAS KNOWINGLY AND VOLUNTARILY
CONSENTED TO THE JURISDICTION AND THE WAIVER OF JURY
TRIAL AS SET FORTH ABOVE FOLLOWING CONSULTATION WITH
LEGAL COUNSEL.
11. SUCCESSOR AND ASSIGNS. The benefit of this
Guaranty shall run to Lessor and its successors and
assigns. In the event that any Obligation is assigned
or otherwise transferred by Lessor, all of Lessor's
rights under this Guaranty may, at Lessor's option, be
assigned to the immediate and any subsequent
3
assignees or transferees of such Obligation and shall
continue to run to Lessor with respect to any
Obligations not so assigned or transferred. The burden
of this Guaranty shall bind Guarantor and its successors
and assigns. This Guaranty shall apply to the
Obligations of Lessee and of Lessee's successors and
assigns, including without limitation the successor to
Lessee upon any merger, consolidation, liquidation or
dissolution of Lessee and, including without
limitation, any transferee of all or substantially all
of the assets of the Lessee and any partnership, person
or entity which carries on the business of Lessee.
12. NOTICES. Any notice under this Guaranty
shall be in writing and shall be deemed to have been
duly given, (a) if to Guarantor, when mailed, by
registered or certified mail, retum receipt requested,
or when mailed by first class mail, or when delivered
by hand, to Guarantor's address set forth above, or to
such other one address as Guarantor may designate from
time to time by notice hereunder to Lessor, (b) if to
Lessor, when received by Lessor at the address set
forth above, or at such other one or more addresses as
Lessor may designate from time to time by notice
hereunder to Guarantor, and also to each successor,
assign and transferee of any Obligation of which notice
has been given hereunder to Guarantor, at the address
or addresses specified in such notice.
13 GOVERNING LAW. This Guaranty, all acts and
transactions hereunder, and the rights and duties of
the parties hereto shall be governed by, and construed
and enforced according to, the laws of the State of
California.
14. INTEGRATION, AMENDMENT AND WAIVER. This
Guaranty sets forth the entire agreement between
Guarantor and Lessor, and supersedes any prior or
contemporaneous agreements, understandings or
representations, oral or written, with respect to the
subject matter hereof, but is supplementary to and does
not supersede any prior guaranty, subordination
agreement or grant of security unless expressly so
stated herein. No amendment or waiver of any provision
of this Guaranty shall be effective unless evidenced in
writing signed by the Lessor.
15. SEVERABILITY. If any provision of this
Guaranty shall be held in any court to be illegal or
unenforceable, all other provisions of this Guaranty
shall remain in full force and effect.
EXECUTED in any number of counterparts as a sealed
instrument, as of this 3rd day of
April, 1997.
Attest Guarantor:
DUNES HOTELS AND CASINOS INC.
/s/ Dunes Hotels and Casino Inc.
/s/ Xxxxx Xxxxx /s/ Xxxxx X. Xxxx
Name: Xxxxx Xxxxx Name: Xxxxx X. Xxxx
Title: Vice President Title: Treasurer
May 19, 1997
STATE OF _______________________
___________________________ County, ss:
The above-named ______________________to me known
personally appeared before me this
4
____ day of _________________, 1997 and acknowledged
the foregoing Guaranty to be the free act and deed of
DUNES HOTELS AND CASINOS INC.
______________________
Notary Public
My commission expires:
5
GUARANTY
This Guaranty is made, effective as of the date of
execution set forth below, by M&R INVESTMENT COMPANY,
INC., a Nevada corporation, of 0000 Xx. Xxxxxxx Xxxxxx,
#000, Xxx Xxxxx, Xxxxxx 00000 ("Guarantor") to ICON
FINANCIAL CORP., of 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx,
Xxx Xxxx 00000, and its successors and assigns
("Lessor"), with respect to the obligations of SHF
Acquisition Corporation, a Nevada corporation, of 4045
x. Xxxxxxx Xxxxxx, #000, Xxx Xxxxx, Xxxxxx 00000
("Lessee") under that certain Master Lease Agreement
dated as of April 3, 1997, including without limitation
the letter agreement between Lessor and Lessee with
respect thereto dated as of February 10, 1997 and
modified as of March 21, 1997 and any Promissory Note
and Equipment Schedule thereunder (collectively, the
"Lease"). Capitalized terms used in this Guaranty and
not otherwise defined herein shall have the meanings
given to them in the Lease.
INTRODUCTION
Guarantor desires to induce Lessor to acquire,
finance and lease certain facilities and equipment
(such facilities and equipment and all substitutions,
replacements, accessions and additions thereto
hereinafter called the "Equipment") to Lessee, a direct
or indirect wholly owned subsidiary of Guarantor,
pursuant to the Lease in order to enhance and protect
Guarantor's financial interest in Lessee, and in order
to promote Guarantor's general business enterprise.
IN CONSIDERATION of the foregoing matters, for ten
dollars, and other valuable consideration, the receipt
and sufficiency of each of which is acknowledged,
Guarantor covenants and agrees as follows:
1. GUARANTY. Guarantor guarantees the full and
punctual payment, performance and observance of all
debts, obligations and liabilities of Lessee to Lessor,
whether now existing or subsequently arising,
liquidated or unliquidated, absolute or contingent, now
due or hereafter falling due, arising out of or in
connection with the Lease including the full, prompt
and complete performance by the Lessee of all of the
terms and conditions contained in the Lease to be kept
and performed by the Lessee, together with all costs of
collection, including reasonably attorneys' fees (all
of the foregoing, collectively, the "Obligations").
2. CONTINUING GUARANTY. This is a continuing
guaranty of payment and performance, which shall apply
to all Obligations which now exist or subsequently
arise, whether or not notice of such Obligations is
given to Guarantor, whether or not any or all prior
Obligations had been fully paid, performed and observed
before any such Obligations arose, and notwithstanding
Guarantor's dissolution. The Lease specifically allows
for several acceptances of Equipment by Lessee, and
Guarantor waives notices of each such acceptances or
deliveries of Equipment, in whole or in part. This
Guaranty may be terminated by the Guarantor only as of
the date on which the Guarantor has received written
notice from the Lessor stating that the Lessee has
fully paid and performed all of the Obligations.
3. OTHER RIGHTS, REMEDIES, SECURITY AND
OBLIGATIONS Guarantor's liability is direct, primary
and unconditional, and, except as set forth below in
this paragraph, may be enforced by Lessor without first
resorting to any other right, remedy or security,
including without limitation any right or remedy
against Lessee, the Equipment, or against any other
person, partnership or entity which now is or may at
any time become liable with respect to any of the
Obligations, or against any security given by Lessee,
by Guarantor or by any other person. Notwithstanding
the foregoing or anything contained in this Guaranty to
the contrary, upon the occurrence and continuance of an
"Event of Default" under and as defined in the Lease,
Lessor shall first proceed against the Equipment and
the Additional Collateral, and provided that Lessor
proceeds against the Equipment and the Additional
Collateral in a manner consistent with applicable law
(and, in the case of a
Trustee's Sale or a Lessee Sale, with the
provisions of Section 16(b) of the Lease),
Guarantor shall be liable for the entire Deficiency
together with interest thereon at the Late Payment Rate
and other sums due under the Lease, notwithstanding any
defenses or limitations with respect thereto available
to the Lessee under applicable law (including without
limitation Lessee's anti-deficiency rights under
applicable California law), which are hereby waived by
Guarantor as to Guarantor. Guarantor's liability shall
not be discharged or diminished (w) by any waiver by
Lessor of any of the terms, covenants or conditions of
any of the Obligations, (x) by the granting of any
indulgence or extension of time to Lessee, (y) by any
modification, supplement or extension of any of the
Obligations, or (z) by any agreement or arrangement
with Lessee or anyone else. Lessor shall be entitled,
in its sole discretion, without discharging or
diminishing Guarantor's liability under this Guaranty,
(i) to apply any payment or transfer received from
Lessee, from Guarantor or from any person, to any of
the Obligations, or (ii) to apply any recovery from
security to any of the Obligations or to any other
debts, obligations or liabilities secured thereby,
whether or not then due, or (iii) to hold any such
payment, transfer or recovery from security as
additional security for any or all of the Obligations,
or for other debts, obligations or liabilities of
Lessee, or of the payor or transferor, or which were
secured by such security, whether or not then due.
4. UNLIMITED LIABILITY. Guarantor's liability
hereunder is unlimited in amount. Guarantor's liability
shall be joint and several with the liability of
Lessee.
5. WAIVER OF NOTICES, ETC Guarantor agrees, to
the greatest extent permitted by law, that Lessor shall
not be required to give Guarantor any notice pursuant
to this Guaranty, and that no failure to give any such
notice shall discharge or diminish the liability which
Guarantor would have had under this Guaranty if such
notice had been given. Guarantor waives, without
limitation, to the greatest extent permitted by law:
notice of acceptance of this Guaranty; notice of the
incurring or additional or increased Obligations;
notice of the application of any payment, transfer or
recovery from security; presentment, demand and protest
of any instrument, and notice thereof; notice of non-
payment of other default under this Guaranty or under
any Obligation; notice of foreclosure; notice of any
release, discharge, or modification of or failure to
obtain any security for any of the Obligations; notice
of any waiver by Lessor of any of the terms, covenants
or conditions or any of the Obligations; notice of the
granting of any indulgence or extension of time to
Lessee; notice of any modification, supplement or
extension of any of the Obligations; notice of any
agreement or arrangement with Lessee, or anyone else;
any right to exoneration or to require election of
remedies; and all suretyship defenses.
6. ACCELERATION. Guarantor shall, at Lessor's
option, without notice, immediately become liable for
the outstanding balance of all Obligations, whether or
not then due, (a) in the event of any failure by
Guarantor fully and punctually to pay, perform or
observe any debt, obligation or liability of Guarantor
under this Guaranty, (b) in the event that Lessee or
Guarantor becomes insolvent, or attempts to make a
composition, moratorium or similar agreement with its
creditors, or makes a general assignment for the
benefit of creditors or has a custodian or receiver
appointed for a substantial portion of its assets, or
(c) if a petition under the federal bankruptcy laws or
any moratorium, insolvency, receivership, or
reorganization proceeding is filed or commenced by or
against the Lessee or Guarantor, or (d) if Lessor would
be entitled to accelerate any of the Obligations but
for the fact that acceleration has been stayed or
enjoined, or (e) in the event of a default by Lessee
under any one or more of the Obligations.
7. UNENFORCEABILITY. In the event that any
Obligation is for any reason not legal, valid or
unenforceable against Lessee, or if any Obligation is
limited, modified, voided, released or discharged in
any proceeding under the federal bankruptcy laws or in
any moratorium, insolvency, receivership, arrangement
or reorganization proceeding, or if any Obligation is
subject to any setoff, direct or indirect counterclaim
or defense by Lessee against Lessor, Guarantor's
liability hereunder shall be the same as if such
Obligation were
2
legal, valid and enforceable, and had not been so
limited, modified, voided, released or discharged, and
were not subject to such setoff, counterclaimor defense.
If any payment or transfer to Lessor or recovery from
security by Lessor, which has beencredited against any
Obligations, is voided orrescinded or required to be
returned by Lessor,this Guaranty and any security given
by Guarantor for theObligations or for this Guaranty
shall continue in effect or be reinstated as though
such payment, transfer or recovery had not been made.
8. WAIVER OF SUBROGATION; SUBORDINATION;
INDEMNITY Guarantor shall have no right of, and hereby
unconditionally and irrevocably agrees that it will not
at any time assert or exercise against Lessee any right
of subrogation, reimbursement, indemnity, contribution
or payment to the extent such rights may otherwise have
arisen, by reason of Guarantor's performance,
satisfaction or discharge of any or all of the
Obligations. All present and future debts, obligations
and liabilities of Lessee to Guarantor are hereby
waived and postponed in favor of and subordinated to
the full payment, performance and observance of the
Obligations, and Guarantor agrees to assign and deliver
to Lessor on request, as security for this guaranty,
(a) any such debts, obligations or liabilities, (b) any
instruments or documents evidencing the same, (c) any
security therefor, and (d) any payments or transfers
with respect thereto, or recoveries on security
therefor, received by Guarantor after default under any
of the Obligations. Guarantor indemnifies and holds
harmless Lessor and its stockholders, directors,
officers, trustees, beneficiaries, agents, employees
and persons acting by, through, under or in concert
with any of them, and any of their successors, personal
representatives or assigns (collectively, the
"Indemnitees") from and against any liability, damage,
loss, cost or expense, including reasonable attorneys'
fees, incurred in connection with any claim, suit or
proceeding by Lessee or anyone claiming out of or
relating to the Obligations, the transactions pursuant
to which the Obligations were incurred, or any actions
by any of the Indemnitees to enforce the Obligations or
to recover on security for the Obligations.
9. FINANCIAL STATEMENTS. Guarantor agrees
promptly to furnish, or cause to be furnished, to
Lessor such financial or other statements respecting
the condition, operations and affairs of Guarantor or
respecting the Equipment as Lessor may from time to
time reasonably request.
10. LEGAL ACTION. Any legal action to enforce
this Guaranty may be maintained alone, without first
proceeding against Lessee, any other person or any
security, or may be consolidated, at Lessor's election,
with any action or other proceeding against Lessee or
any other person. Lessor's books and records showing
the account between Lessor and Lessee shall be
admissible in any action or proceeding and shall
constitute prima facie proof of the items stated in
such books and records. Lessor's rights are cumulative
and shall not be exhausted by the exercise of its
rights against Guarantor in any number of actions,
except when and so long as all Obligations have been
fully paid, performed and observed, and have not been
reinstated by reason of the avoidance of any transfer,
the return of any payment, or otherwise, in which event
Guarantor's liability under this Guaranty shall be
likewise reinstated. GUARANTOR CONSENTS TO THE
JURISDICTION AND VENUE IN THE STATE COURTS OF THE STATE
OF CALIFORNIA, AND, IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CALIFORNIA, WITH RESPECT TO ANY
ACTION BY LESSOR TO ENFORCE THIS GUARANTY. GUARANTOR
WAIVES ANY RIGHT TO A JURY TRIAL IN ANY ACTION TO
ENFORCE THIS GUARANTY. GUARANTOR ACKNOWLEDGES THAT IT
HAS REVIEWED THE FOREGOING WAIVER WITH ITS LEGAL
COUNSEL AND HAS KNOWINGLY AND VOLUNTARILY CONSENTED TO
THE JURISDICTION AND THE WAIVER OF JURY TRIAL AS SET
FORTH ABOVE FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
11. SUCCESSOR AND ASSIGNS. The benefit of this
Guaranty shall run to Lessor and its successors and
assigns. In the event that any Obligation is assigned
or otherwise transferred by Lessor, all of Lessor's
3
rights under this Guaranty may, at Lessor's option, be
assigned to the immediate and any subsequent assignees
or transferees of such Obligation and shall continue to
run to Lessor with respect to any Obligations not so
assigned or transferred. The burden of this Guaranty
shall bind Guarantor and its successors and assigns.
This Guaranty shall apply to the Obligations of Lessee
and of Lessee's successors and assigns, including
without limitation the successor to Lessee upon any
merger, consolidation, liquidation or dissolution of
Lessee and, including without limitation, any
transferee of all or substantially all of the assets of
the Lessee and any partnership, person or entity which
carries on the business of Lessee.
12. NOTICES. Any notice under this Guaranty
shall be in writing and shall be deemed to have been
duly given, (a) if to Guarantor, when mailed, by
registered or certified mail, return receipt requested,
or when mailed by first class mail, or when delivered
by hand, to Guarantor's address set forth above, or to
such other one address as Guarantor may designate from
time to time by notice hereunder to Lessor, (b) if to
Lessor, when received by Lessor at the address set
forth above, or at such other one or more addresses as
Lessor may designate from time to time by notice
hereunder to Guarantor, and also to each successor,
assign and transferee of any Obligation of which notice
has been given hereunder to Guarantor, at the address
or addresses specified in such notice.
13 GOVERNING LAW. This Guaranty, all acts and
transactions hereunder, and the rights and duties of
the parties hereto shall be governed by, and construed
and enforced according to, the laws of the State of
California.
14. INTEGRATION, AMENDMENT AND WAIVER. This
Guaranty sets forth the entire agreement between
Guarantor and Lessor, and supersedes any prior or
contemporaneous agreements, understandings or
representations, oral or written, with respect to the
subject matter hereof, but is supplementary to and does
not supersede any prior guaranty, subordination
agreement or grant of security unless expressly so
stated herein. No amendment or waiver of any provision
of this Guaranty shall be effective unless evidenced in
writing signed by the Lessor.
15. SEVERABILITY. If any provision of this
Guaranty shall be held in any court to be illegal or
unenforceable, all other provisions of this Guaranty
shall remain in full force and effect.
EXECUTED in any number of counterparts as a sealed
instrument, as of this 3rd day of April, 1997.
Attest: Guarantor:
M&R INVESTMENT COMPANY, INC.
/s/ M&R Investment Company, Inc.
/s/ Xxxxx Xxxxx /s/ Xxxxx X. Xxxx
Name: Xxxxx Xxxxx Name: Xxxxx X. Xxxx
Title: Vice President Title: President
May 19, 1997
STATE OF _______________________
___________________________ County, ss:
4
The above-named ______________________ to me known
personally appeared before me this ____ day of
_________________,, 1997 and acknowledged the foregoing
Guaranty to be the free act and deed of M&R INVESTMENT
COMPANY, INC.
_______________________
Notary Public
My commission expires:
5
RECORDING REQUESTED BY
NORTH AMERICAN TITLE COMPANY
Escrow No. 401958 Order No.
AND WHEN RECORDED MAIL TO
Name Icon Cash Flow Partners, L.P. READ AND APPROVED
Xxxxxx Xxxxxxxxx X /s/ BRC
Xxxxxx 000 Xxxxxxxxxx Xxxxxx X________________
Address
City & Xxxxxxxx, XX 00000
State
_____SPACE ABOVE THIS LINE FOR RECORDER'S USE________
SHORT FORM DEED OF TRUST AND ASSIGNMENT OF RENTS
(INDIVIDUAL)
J.P.N. (DUE ON SALE CLAUSE) A.P.N.00-000-00 & 29
THIS DEED OF TRUST, made this 21st day of May, 1997,
between SHF Acquisition Corporation, a Nevada
corporation, herein called TRUSTOR, whose address is
0000 X. Xxxxxxx Xxxxxx #000, Xxx Xxxxx, XX 00000,
(number and street) (city) (state) (zip)
North American Title Company, a California
corporation, herein called TRUSTEE, and ICON Cash Flow
Partners L.P. Series E, a Delaware Limited Partnership,
herein called BENEFICIARY,
WITNESSETH: That Trustor IRREVOCABLY GRANTS, TRANSFERS
AND ASSIGNS TO TRUSTEE IN TRUST, WITH POWER OF SALE,
that property in , Yolo County,
California, described as:
Lots 44 and 57 and the north 1/2 of Xxx 00, Xxxxxxxxxx
Xxxxx, being Sacramento Valley Improvement Subdivision
No. 10, filed June 2, 1909, in book 3 of Maps and
Surveys, page 83, Yolo County Records.
For additional provisions, see Exhibit "A" attached
hereto and made a part hereof.
(Continued)
IF THE TRUSTOR SHALL SELL, CONVEY OR ALIENATE SAID
PROPERTY, OR ANY PART THEREOF, OR ANY INTEREST THEREIN,
OR SHALL BE DIVESTED OF HIS TITLE OR ANY INTEREST
THEREIN IN ANY MANNER OR WAY, WHETHER VOLUNTARILY OR
INVOLUNTARILY, WITHOUT THE WRITTEN CONSENT OF THE
BENEFICIARY BEING FIRST HAD AND OBTAINED, BENEFICIARY,
SHALL HAVE THE RIGHT, AT ITS OPTION, EXCEPT AS
PROHIBITED BY LAW, TO DECLARE AN INDEBTEDNESS OR
OBLIGATIONS SECURED HEREBY, IRRESPECTIVE OF THE
MATURITY DATE SPECIFIED IN ANY NOTE EVIDENCING THE
SAME, IMMEDIATELY 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 SUCCESSIVE
TRANSACTIONS.
TOGETHER WITH the rents, issues and profits thereof,
SUBJECT, HOWEVER, to the right, power and authority
given to and conferred upon Beneficiary by paragraph
(10) of the provisions incorporated herein by reference
to collect and apply such rents, issues and profits.
FOR THE PURPOSE OF SECURING: 1. Performance of each
agreement of Trustor incorporated by reference or
contained herein.
2. Payment of the indebtedness evidenced by one
promissory note dated April 3, 1997, and any extension
or renewal thereof, in the principal sum of
$1,150,000.00 executed by Trustor in favor of
Beneficiary or order.
3. Payment of such further sums as the then record
owner of said property hereafter may borrow from
Beneficiary, when evidenced by another note (or notes)
reciting it is so secured.
4. As additional collateral for the performance of
the obligations of Trustor under that certain Master
Lease Agreement dated April 3, 1997.
Page 1 of 2
(Continued)
EXHIBIT "A"
Beneficiary agrees to release such portions of the
above described real property as may be reasonably
requested by Trustor to enable Trustor to complete
financing and construction of expansions to its rice
drying and storage operation, provided that Beneficiary
is left with Liens sufficient in its sole judgment to
adequately secure its position as the Lessor of the
Equipment to Trustor.
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR
AGREES: By the execution and deliver of this Deed of
Trust and the note secured hereby, that provisions (1)
to (14), inclusive, of the fictitious deed of trust
recorded in Santa Xxxxxxx County and Sonoma County
October 18, 1961, and in all other counties October 23,
1961, in the book and at the page of Official Records
in the office of the county recorder of the county
where said property is located, noted below opposite
the name of the county, viz.:
COUNTY BOOK PAGE COUNTY BOOK PAGE
ALAMEDA 435 684 KINGS 792 833
ALPINE 1 250 LAKE 000 00
XXXXXX 000 000 LASSEN 171 471
BUTTE 1145 1 LOS ANGELES T2055 899
CALAVERAS 000 000 XXXXXX 000 000
COLUSA 296 617 MARIN 1508 339
CONTRA COSTA 3978 47 MARIPOSA 00 000
XXX XXXXX 00 000 MENDOCINO 579 530
EL DORADO 568 456 MERCED 1547 538
FRESNO 4626 572 MODOC 000 000
XXXXX 000 000 MONO 00 000
XXXXXXXX 000 000 MONTEREY 2194 538
IMPERIAL 1091 501 NAPA 000 00
XXXX 000 000 NEVADA 000 000
XXXX 0000 60 ORANGE 5889 611
COUNTY BOOK PAGE COUNTY BOOK PAGE
PLACER 895 301 SIERRA 29 335
PLUMAS 151 5 SISKIYOU 468 181
RIVERSIDE 3005 523 XXXXXX 1105 182
SACRAMENTO 4331 62 SONOMA 1851 689
SAN XXXXXX 271 383 STANISLAUS 1715 456
SAN BERNARDINO 5567 61 XXXXXX 572 297
SAN FRANCISCO A332 905 TEHAMA 401 289
SAN XXXXXXX 2470 311 TRINITY 00 000
XXX XXXX XXXXXX 0000 12 TULARE 2294 275
SAN MATEO 4078 420 TUOLUMNE 135 47
SANTA XXXXXXX 1878 860 VENTURA 2062 386
SANTA XXXXX 5336 341 YOLO 000 000
XXXXX XXXX 1431 494 YUBA 000 000
XXXXXX 000 000
SAN DIEGO SERIES 2 BOOK 1961, PAGE 183887
(which provisions, identical in all counties, are
printed on attached herewith) hereby are adopted and
incorporated herein and made a part hereof as fully as
though set forth herein at length; that he will observe
and perform 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.
The undersigned Trustor requests that a copy of
any Notice of Default and of any Notice of Sale
hereunder be mailed to him at his address hereinbefore
set forth.
STATE OF CALIFORNIA )SS. Signature of Trustor
COUNTY OF ________________)
____________________
On_______________before me, ____________________
________, 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 acknow-
ledged to me that he/she/they
executed the same in his/her/
their authorized capacity(ies),
and that by his/her/their
signatures(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________(This area for official notarial seal)
FOR RECONVEYANCE SEND TO THE NEAREST OFFICE OF NORTH
AMERICAN TITLE COMPANY
REQUEST FOR FULL RECONVEYANCE
TO BE USED ONLY WHEN NOTE HAS BEEN PAID.
Dated _________________________
TO NORTH AMERIAN TITLE COMPANY, Trustee:
The undersigned is the legal owner and holder of
all indebtedness secured by the within Deed of Trust.
All sums 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 all
evidences of indebtedness, secured by said Deed of
Trust, delivered to you herewith together with said
Deed of Trust, and to reconvey, without warranty, to
the parties designated by the terms of said Deed of
Trust, the estate now held by you under the same.
MAIL RECONVEYANCE TO:
___________________ __________________
___________________ (By)_______________
___________________ (By)_______________
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.
Page 2 of 2
3
DO NOT RECORD/FOR INFORMATION PURPOSES
SHORT FORM DEED OF TRUST AND ASSIGNMENT OF RENTS
(INDIVIDUAL)
The following is a copy of provisions (1) to (14),
inclusive, of the fictitious deed of trust, recorded in
each county in California, as stated in the foregoing
Deed of Trust and incorporated by reference in said
Deed of Trust as being a part thereof as if set forth
at length therein.
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR
AGREES:
(1) To keep said property in good condition and
repair; not to remove or demolish any building thereon;
to complete or restore promptly in good and workmanlike
manner any building which may be constructed, damaged
or destroyed thereon and to pay when due all claims for
labor performed and materials furnished therefor; to
comply with all laws affecting said property or
requiring any alterations or improvements to be made
thereon; not to commit or permit waste thereof; not to
commit, suffer or permit any act upon said property in
violation of law; to cultivate, irrigate, fertilize,
prune and do all other acts which from the character or
use of said property may be reasonably necessary, the
specific enumerations herein not excluding the general.
(2) To provide, maintain and deliver to
Beneficiary fire insurance satisfactory to and with
loss payable to Beneficiary. The amount collected
under any fire or other insurance policy may be applied
by Beneficiary upon any indebtedness secured hereby and
in such order as Beneficiary may determine, or at
option of Beneficiary the entire amount so collected or
any part thereof may be released to Trustor. Such
application or release shall not cure or waive any
default hereunder or invalidate any act done pursuant
to such notice.
(3) To appear in and defend any action or
proceeding purporting to affect the security hereof or
the rights or powers of Beneficiary or Trustee; and to
pay all costs and expenses, including cost of evidence
of title and attorney's fees in a reasonable sum, in
any such actions or proceeding in which Beneficiary or
Trustee may appear, and in any suit brought by
Beneficiary to foreclose this Deed.
(4) To pay: at least ten days before delinquency
all taxes and assessments affecting said property,
including assessments on appurtenant water stock; when
due, all encumbrances, charges and liens with interest,
on said property or any part thereof, which appear to
be prior or superior hereto; all costs, fees and
expenses of this Trust.
Should Trustor fail to make any payment or to do
any act as herein provided, the Beneficiary or Trustee,
but without obligation so to do and without notice to
or demand upon Trustor and without releasing Trustor
from any obligation hereof, may: make or do the same in
such manner and to such extent as either may deem
necessary to protect the security hereof, Beneficiary
or Trustee being authorized to enter upon said property
for such purposes; appear in and defend any action or
proceeding purporting to affect the security hereof or
the rights or powers of Beneficiary or Trustee; pay,
purchase, contest or compromise any incumbrance, charge
or lien which in the judgement of either appears to be
prior to or superior hereto; and, in exercising any
such powers, pay necessary expenses, employ counsel and
pay his reasonable fees.
(5) To pay immediately and without demand all
sums so expended by Beneficiary or Trustee, with
interest from date of expenditure at amount allowed by
law in effect at the date hereof, and to pay for any
statement provided for by law in effect at the date
hereof regarding the obligation secured hereby any
amount demanded by the Beneficiary not to exceed the
maximum allowed by law at the time when said statement
is demanded.
(6) That any award of damages in connection with
any condemnation for public use or injury to said
property or any part thereof is hereby assigned and
shall be paid to Beneficiary who may apply or release
such moneys received by him/her/them in the same manner
and with the same effect as above provided for
disposition of proceeds of fire or other insurance.
(7) That by accepting payment of any sum secured
hereby after its due date, beneficiary does not waive
his right either to require prompt payment when due of
all other sums so secured or to declare default for
failure so to pay.
(8) That at any time or from time to time,
without liability therefor and without notice, upon
written request of Beneficiary and presentation of this
Deed and said Note for endorsement, and without
affecting the personal liability of any person for
payment of the indebtedness secured hereby, Trustee
may; reconvey any part of said property, consent to the
making of any map or plat thereof; join in granting any
easement thereon, or join in any extension agreement or
any agreement subordinating the lien or charge hereof.
(9) That upon written request of Beneficiary
stating that all sums secured hereby have been paid,
and upon surrender of this Deed and said 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
years after issuance of such full reconveyance, Trustee
may destroy this document (unless directed in such
request to retain it).
(10) That as additional security, Trustor hereby
gives to and confers upon Beneficiary the right, power
and authority, during the continuance of these Trusts,
to collect the rents, issues and profits of said
property, reserving unto Trustor the right, prior to
any default by Trustor in payment of any indebtedness
secured hereby or in performance of any agreement
hereunder, to collect and retain such rents, issues and
profits as they become due and payable. Upon any such
default, Beneficiary may at any time without notice,
either in person, by agent, or by a receiver to be
appointed by a court, and without regard to adequacy of
any security for the indebtedness hereby secured enter
upon and take possession of said property or any part
thereof, in his/her/their own name xxx for or otherwise
collect such rents, issues and profits, including those
past due and unpaid, and apply the same, less costs and
expenses of operation and collection, including
reasonable attorney's fees, upon any indebtedness
secured issues and profits and the application thereof
as aforesaid, shall not cure or waive any default or
notice of default hereunder or invalidate any act done
pursuant to such notice.
(11) That upon default by trustor in payment of
any indebtedness secured hereby or in performance of
any agreement hereunder, Beneficiary may declare all
sums secured hereby immediately due and payable by
delivery to Trustee of written declaration of default
and demand for sale and of written notice of default
and of election to case to be sold said property, which
notice Trustee shall cause to be filed for record.
Beneficiary also shall deposit with Trustee this Deed,
said Note and all documents evidencing expenditure
secured hereby.
After the lapse of such time as may then be
required by law following the recordation of said
notice of default, and notice of sale having been given
as then required by law, Trustee, without demand on
Trustor, shall sell said property at the time and place
fixed by it in said notice of sale, either as a whole
or in separate parcels, and in such order as it may
determine, at public auction to the highest bidder for
cash in lawful money of the United States, payable at
time of sale. Trustee may postpone sale of all or any
portion of said property by public announcement at such
time and place of sale and from time to time thereafter
may postpone such sale by public announcement at the
time fixed by the preceding postponement. Trustee
shall deliver to such purchaser its deed conveying the
property so sold, but without any covenant or warranty,
express or implied. The recitals in such deed of any
matters of facts shall be conclusive proof of the
truthfulness thereof. Any person, including Trustor,
Trustee, or Beneficiary as hereinafter defined, may
purchase at such sale.
After deducting all costs, fees and expenses of
Trustee and of this Trust, including cost of evidence
of title in connection with sale, Trustee shall apply
the proceeds of sale to payment of: all sums expended
under the terms hereof, not the repaid, with accrued
interest at the amount allowed by law in effect at the
date hereof; all other sums then secured hereby; and
the remainder, if any, to the person or persons legally
entitled thereto.
(12) Beneficiary, or any successor in ownership of
any indebtedness secured hereby, may from time to time,
by instrument in writing, substitute a successor or
successors to any Trustee named herein or acting
hereunder, which instrument executed by the Beneficiary
and duly acknowledged 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 the Trustee predecessor,
succeed to all its title, estate, rights, powers and
duties. Said instrument must contain the name of the
original Trustor, Trustee and Beneficiary hereunder,
the book and page where this Deed is recorded and the
name and address of the new Trustee.
(13) That this Deed applies to, inures to the
benefit of, and binds all parties hereto, their heirs,
legatees, devisees, administrators, executors,
successors and assigns. The term Beneficiary shall
mean the owner and holder, including pledgees, of the
Note secured hereby, whether or not named as
Beneficiary herein. In this Deed, whenever the context
so requires, the masculine gender includes the feminine
and/or neuter, and the singular number includes the
plural.
(14) That trustee accepts this Trust when this
Deed, duly executed and acknowledged, is made a public
record as provided by law. Trustee is not obligated to
notify any party hereto of pending sale under any other
Deed of Trust or of any action or proceeding in which
Trustor, Beneficiary or Trustee shall be a party unless
brought by Trustee.
