This instrument was prepared by,
recording is requested by,
and when recorded return to:
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxxxxx, Esq.
--------------------------------------------------
--------------------------------------------------
-----
(Space above this
line for Recorder's use)
AMENDMENT TO DEED
OF TRUST
This Amendment to a Deed of Trust (the
"Agreement") is made as of the 25th date of
April,1996 by and between HERITAGE HILLS
RETIREMENT, INC., a North Carolina corporation
("Grantor"), and HEALTH CARE PROPERTY INVESTORS,
INC., a Maryland corporation ("Beneficiary").
RECITALS
A. This document amends the Deed of Trust
with Assignment of Rents, Security Agreement and
Fixture Filing dated as of January 26, 1996 (the
"Deed of Trust"), which covers certain real
property described with particularity in Exhibit
"A" attached hereto executed by Grantor in favor
of Beneficiary, and recorded on February l,1996 in
Book 644, Pa e 137 of the Xxxxxxxxx County, North
Carolina Registry.
B. Capitalized words used in this Agreement
shall have the same meaning as in the Deed of
Trust unless defined herein or unless the context
requires otherwise.
C. The parties desire to amend the Deed of
Trust to provide, among other things, that it
secures certain additional obligations.
AGREEMENT
Now, therefore, in consideration of the
mutual promises and agreements herein contained,
the parties hereto agree as follows:
1. OBLIGATIONS SECURED. Section 2.1 of the
Deed of Trust is amended by deleting the word
"and" from the end of Section 2.1(e), replacing
the period at the end of Section 2 1 with a semi-
colon, and adding the following paragraphs after
Section 2.1(f) thereof:
(g) Payment and performance of all
obligations of Emeritus Corporation, a Washington
corporation ("Emeritus Corporation") under that
certain Lease (Rosewood Court Facility) dated as
of March 29,1996 between Emeritus Corporation and
Beneficiary; and
(h) Payment and performance of all
obligations of Emeritus Corporation under that
certain Contract of Acquisition dated as of March
29, 1996 between Emeritus Corporation and
Beneficiary.
2. RIGHTS OF BENEFICIARY. Grantor
authorizes Beneficiary, or any affiliate of
Beneficiary, without giving notice to Grantor or
obtaining its consent and without affecting the
liability of Grantor hereunder, from time to time
to: (a) modify all or any portion of the Secured
Obligations; (b) declare all sums owing under the
Secured Obligations due and payable upon the
occurrence of a default or event of default under
the Secured Obligations; (c) make changes in the
dates specified for payments of any sums payable
under the Secured Obligations, and accept or deny,
in its sole discretion, partial payments or
performance of the Secured Obligations; (d) take
and hold additional security for the performance
of the obligations and the Secured Obligations and
abandon fail to perfect, exchange, enforce, waive
or release any such additional or existing
security; (e) apply such additional or existing
security for the Secured Obligations and direct
the order or manner of sale thereof as, in its
sole discretion may be determined by Beneficiary
or any affiliate of Beneficiary; (f) apply
payments received by it from Emeritus Corporation
or any other person to any obligations of Emeritus
Corporation or such other person under the Secured
Obligations, in such order as Beneficiary or any
affiliate of Beneficiary, shall determine in its
sole discretion, whether or not any such
obligations are secured by the Deed of Trust; (i)
consent, in the sole discretion of Beneficiary, to
the merger, consolidation, restructuring,
dissolution or other change in the structure of
Emeritus Corporation or any other person; (j)
assign the rights under the Deed of Trust in whole
or in part; and (k) consent to or permit, in
Beneficiary's sole discretion, Emeritus
Corporation's assignment or subleasing of Secured
Obligations.
3. GENERAL WAIVERS. Emeritus Corporation
waives: (a) any defense now existing or hereafter
arising based upon any legal disability or other
defense of Emeritus Corporation or any other
guarantor or other person, or by reason of the
cessation or limitation of the liability of
Emeritus Corporation or any guarantor or other
person from any cause other than full payment and
performance of all obligations due under the
Secured Obligations; (b) any defense based upon
any lack of authority of the officers, directors,
partners or agents acting or purporting to act on
behalf of Emeritus Corporation or any other
person, or any defect in the formation of Emeritus
Corporation or any other person; (c) the
unenforceability or invalidity of any security or
guaranty or the lack of perfection or continuing
perfection, or failure of priority of any security
for the obligations guarantied hereunder; (d) any
right or defense based upon Beneficiaries'
election of any remedy against Emeritus
Corporation or any other person; (e) any defense
based upon Beneficiaries' failure to disclose to
Emeritus Corporation any information concerning
any person's financial condition or any other
circumstances bearing on Emeritus Corporation's,
Grantor's or any other person's ability to pay and
perform all obligations due under the Secured
Obligations; (f) any failure by Beneficiary to give
notice to Emeritus Corporation or any other person
of the sale or other disposition of security held
for the Secured Obligations, and any defect in
notice given by Beneficiary in connection with any
such sale or disposition of security held for the
Secured Obligations; (g) any failure of
Beneficiary to comply with applicable laws in
connection with the sale or disposition of
security held for the additional obligations,
including,
2
without limitation, any failure by Beneficiary to
conduct a commercially reasonable sale or other
disposition of such security; (h) any defense
based upon any statute or rule of law which
provides that the obligation of a surety must be
neither larger in amount nor in any other respects
more burdensome than that of a principal, or that
reduces a surety's or guarantor's obligations in
proportion to the principal's obligation; (i) any
use of cash collateral under Section 363 of the
Federal Bankruptcy Code; (j) any defense based
upon Beneficiary's election, in any proceeding
instituted under the Federal Bankruptcy Code, of
the application of Section I 111(b)(2) of the
Federal Bankruptcy Code or any successor statute;
(k) any defense based upon any borrowing or any
grant of a security interest under Section 364 of
the Federal Bankruptcy Code; (1) any right of
subrogation, any right to enforce any remedy which
Beneficiary may have against Emeritus Corporation
or any other person and any right to participate
in, or benefit from, any security now or hereafter
held by Beneficiary for the obligations due under
the Secured Obligations; (m) presentment, demand,
protest and notice of any kind, including notice
of acceptance of this Agreement and of the
existence, creation or incurring of new or
additional guaranteed obligations; (n) the benefit
of any statute of limitations affecting the
liability of Emeritus Corporation or any other
person, enforcement of the Secured Obligations,
the liability of Emeritus hereunder or the
enforcement hereof; (o) all notices of intention
to accelerate and/or notice of acceleration of the
Secured Obligations; (p) relief from any
applicable valuation or appraisement laws; and (q)
any other action by Beneficiary or any omission by
Beneficiary or other failure of Beneficiary to
pursue, or delay in pursuing, any other remedy in
Beneficiaries s power. Emeritus Corporation agrees
that the payment and performance of all
obligations due under the Secured Obligations, any
part thereof or other act which tolls any statute
of limitations applicable to the Secured
Obligations shall similarly operate to toll the
statute of limitations applicable to Grantor's
liability hereunder.
4. REPRESENTATIONS and Warranties. As a
material inducement to Beneficiary to enter into
the transactions contemplated hereby, Emeritus
Corporation represents and warrants to Beneficiary
that:
(a) This Agreement has been duly authorized,
executed and delivered by Grantor and is valid,
binding and enforceable against Grantor in
accordance with its terms, except as such
enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar
laws or equitable principles relating to or
limiting the rights of creditors generally.
(b) The Deed of Trust, as modified hereby, is
valid; binding and enforceable against Grantor in
accordance with its terms, except as such
enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar
laws or equitable principles relating to or
limiting the rights of creditors generally.
(c) There are no existing claims, defenses,
personal or otherwise, or rights of setoff
whatsoever with respect to the Deed of Trust as
modified hereby.
(d) There are no existing Events of Default
under the Deed of Trust as modified hereby, and no
event has occurred and no condition exists which
would constitute an Event of Default thereunder
with notice or lapse of time or both.
3
(e) The representations and warranties made
by Grantor herein and in any other document
delivered to Beneficiary on or before the date
hereof did not contain as of the date of the
delivery and does not contain as of the date
hereof a materially untrue statement and did not
omit as of the date of delivery and does not omit
as of the date hereof any material fact necessary
to make such representations and warranties not
misleading.
5. WAIVER OF RIGHTS OF SUBROGATION.
Notwithstanding anything to the contrary contained
herein or in any other document to which Emeritus
Corporation is a party, until all obligations
under the Deed of Trust and this Agreement are
fully paid and performed, Grantor hereby expressly
waives any and all rights at law or in equity to
subrogation, to reimbursement, to exoneration, to
contribution, to setoff or to any other rights
that could accrue to a surety against a
principal, or to an accommodation party against
the party accommodated, and which Grantor may have
or hereafter acquire against any other person in
connection with or as a result of Grantor's
execution, delivery and/or performance of the Deed
of Trust or this Agreement or any other document
to which Grantor is a party. Grantor agrees that
it shall not have or assert any such rights
against any person (including any surety), either
directly or as an attempted setoff to any action
commenced against Emeritus Corporation by any
person (whether as borrower or in any other
capacity) or by Beneficiary. Grantor hereby
acknowledges and agrees that this waiver is
intended to benefit Beneficiary and shall not
limit or otherwise affect Grantor's liability
hereunder, under any other document to which
Grantor is a party, or the enforceability hereof
or thereof.
6. GRANTOR'S RESERVATION OF RIGHTS
Notwithstanding any other provision of this
Agreement:
(i) the Grantor does not intend to waive any
of its rights or remedies as a result of any
breach by Beneficiary of its covenants not to
consent to assignment of, or alter or amend, the
Painted Post Lease prior to its assignment to
Painted Post Partners;
(ii) nothing in this Agreement is intended to
constitute a consent to alter or amend the Painted
Post Lease prior to its assignment to Painted Post
Partners; and
(iii) nothing in this Agreement is intended
to constitute a consent by Grantor to any consent
by Beneficiary to assignment of the Painted Post
Lease to any party other than Painted Post
Partners.
7. FINANCIAL CONDITION OF GRANTOR; LIMITATION
ON OBLIGATIONS SECURED. Grantor represents and
warrants to Beneficiary that (i) Grantor is not
engaged in an transaction or business, including
without limitation the transaction contemplated
hereby, for which Grantor's assets are
unreasonably small in relation to the transaction
or business, and (ii) Grantor has not incurred and
does not intend to incur indebtedness beyond its
ability to pay as such indebtedness becomes due.
Notwithstanding anything to the contrary in the
Agreement, the amount of the Secured Obligations
secured by the Deed of Trust shall be limited to
the sum of (a) the total value of the benefits if
any, received by Grantor from the transactions
contemplated by the
4
Secured Obligations, and (b) the maximum amount of
the Secured Obligations that can be undertaken by
Grantor without causing Grantor's liabilities to
exceed Grantor's assets after consideration is
given to any rights of the Grantor in the nature
of contribution and indemnity arising out of
Grantor's execution, delivery and performance of
this Agreement.
8. EFFECT OF AGREEMENT. Except to the extent
expressly modified by this Agreement, the Deed of
Trust and any and alt documents executed or
delivered pursuant thereto shall remain in full
force and effect. Without limiting the foregoing,
since the date of the Deed of Trust, except as set
forth herein there have been no modifications,
amendments or other charges of any kind whatsoever
in the Deed of Trust, whether written oral or by
course of dealing.
[CORPORATE SEAL]
"Grantor"
Attest:
HERITAGE HILLS RETIREMENT, INC., a
North Carolina corporation
/s/ Xxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxxxxxxx
Secretary
President
--------------------------------------
-----------------------------------------
[CORPORATE SEAL]
"Beneficiary"
Attest:
HEALTH CARE PROPERTY INVESTORS,
INC., a Maryland corporation
/s/ Xxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxxx
Secretary
Senior Vice President
--------------------------------------
-----------------------------------------
5
STATE OF WASHINGTON )
)
COUNTY OF KING )
This is to certify on the 1st day of May
1996, before me personally came Xxxxxxx X.
Xxxxxxxxxx, who, being by me duly sworn, says that
he is President of Heritage Hills Retirement,
Inc., and Xxxxx X. Xxxxx is the Secretary of
Heritage Hills Retirement, Inc., the corporation
described herein and which executed the foregoing
instrument; that he knows the common seal of said
corporation; that the seal affixed to the
foregoing instrument is said common seal, and the
name of the corporation was subscribed thereto by
the said President, and that said President and
Secretary subscribed their names thereto, and said
common seal was affixed, all by order of the Board
of Directors of said corporation, and that the
said instrument is the act and deed of said
corporation.
Witness my hand and official seal, this 1st
day of May, 1996.
[SEAL] /s/
Xxxxxxxxx X. Xxxxxxx
-
-----------------------------
Notary Public
My Commission expires:
March 30, 1999
6
STATE OF CALIFORNIA )
)
COUNTY OF LOS ANGELES )
This is to certify on the 21st day of June
1996, before me personally came Xxxxxxx X.
Xxxxxxxxxx, who, being by me duly sworn, says that
he is Senior Vice President of Health Care
Property Investors, Inc., and Xxxxxx X. Xxxxxxx is
the Corporate Secretary of Health Care Property
Investors, Inc., the corporation described herein
and which executed the foregoing instrument; that
he knows the common seal of said corporation; that
the seal affixed to the foregoing instrument is
said common seal, and the name of the corporation
was subscribed thereto by the said Senior Vice
President, and that said Senior Vice President and
Corporate Secretary subscribed their names
thereto, and said common seal was affixed, all by
order of the Board of Directors of said
corporation, and that the said instrument is the
act and deed of said corporation.
Witness my hand and official seal, this 21st
day of June, 1996.
[SEAL] /s/
Xxxx Xxxxxxxx
-
-----------------------------
Notary Public
My Commission expires:
July 26, 1996
7
