EXHIBIT 99.5
Order No.
Escrow No.
Loan No.
WHEN RECORDED MAIL TO:
Xxxxxxxx Xxxxxxxx, Esq.
Xxxxxxx & West LLP
Two Xxxx Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
SPACE ABOVE THIS LINE FOR RECORDER'S USE
DEED OF TRUST WITH ASSIGNMENT OF RENTS
(LONG FORM)
(ACCELERATION CLAUSE)
This DEED OF TRUST, made September 27, 2002, between SIPEX CORPORATION, a
Massachusetts corporation, herein called TRUSTOR, whose address is 00 Xxxxxxx
Xxxxxx, Xxxxxxxxx, XX 00000, Attention: Chief Financial Officer, FIRST AMERICAN
TITLE INSURANCE COMPANY, a California corporation, herein called TRUSTEE, and S
& F FINANCIAL HOLDINGS INC., a corporation incorporated in Canada, herein
called BENEFICIARY
WITNESSETH: That Trustor grants to Trustee in Trust, with Power of Sale, that
property (the "Property") in the City of Milpitas, County of Santa Xxxxx, State
of California, described as:
SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF
together with the rents, issues and profits thereof, subject, however, to the
right, power and authority hereinafter given to and conferred upon Beneficiary
to collect and apply such rents, issues and profits for the Purpose of Securing
(1) payment of the sum of U.S. $12,000,000.00, with interest thereon according
to the terms of that certain Convertible Secured Note (the "Note") of even date
herewith made by Trustor, payable to order of Beneficiary, and extensions or
renewals thereof, (2) the performance of each agreement of Trustor incorporated
by reference or contained herein and (3) payment of additional sums and
interest thereon which may hereafter be loaned to Trustor, or its successors or
assigns, by Beneficiary when evidenced by a promissory note or notes reciting
that they are secured by this Deed of Trust.
Notwithstanding anything in this Deed of Trust to the contrary, in no event
shall the Property include any personal property or equipment owned or leased
by Trustor, whether or not located on the Property or used in connection
therewith, regardless of whether any such personal property or equipment is
attached to the Property or constitutes a fixture under applicable law, so long
as such equipment is not part of the plumbing, electrical or heating,
ventilating or air conditioning systems essential to the operation of the base
buildings located on the Property, as opposed to the operation of Trustor's
specialized systems (including, without limitation, "clean room" facilities)
from time to time incorporated in the buildings located on the Property.
If Trustor shall sell, convey, or alienate the Property, or any part thereof,
or any interest therein, or shall be divested of its title or any interest
therein in any manner or way, whether voluntarily of 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
any indebtedness or obligations secured hereby, irrespective of the maturity
date specified in any note evidencing same, immediately due and payable.
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A. To protect the security of this Deed of Trust, Trustor agrees:
(1) To keep the Property in good condition and repair; not to remove or
demolish any building thereon; to complete or restore promptly and in good and
workmanlike manner any building which may be constructed, damaged or destroyed
thereon, provided that Beneficiary makes available to Trustor the proceeds of
any insurance received on account of such damage or 1 destruction, and to pay
when due all claims for labor performed and materials furnished therefor; to
comply with all laws affecting the Property or requiring any alterations or
improvements to be made thereon; to comply with all recorded instruments
relating to the maintenance or use of the Property; i not to commit or permit
waste thereof; not to commit, suffer or permit any act upon the Property in
violation of law; to do all other acts which from the character or use of the
Property may be reasonably necessary to preserve the value thereof, the specific
enumerations herein not excluding the general. Notwithstanding anything to the
contrary in this Deed of Trust, no failure to comply with any such laws or
recorded instruments or to do any such acts shall constitute a default of
Trustor unless it could reasonably be expected to have a Material Adverse
Effect, which, for the purposes of this Deed of Trust, shall be deemed to occur
if the cost to remedy the failure or non-compliance or the likely reduction in
the fair market value of the Property as a result of the failure or
non-compliance, which ever is greater, exceeds $600,000. The determination of
the fair market value of the Property and its likely reduction shall be made by
Xxxx Xxxx of Berliner, Xxxxxx & Xxxx, 000 Xxxxxx Xxxxxx, Xxxxx 0, Xxxx Xxxx, XX
00000, or such other appraiser as shall be approved by Trustor and Beneficiary
who is a Member of the Appraisal Institute and has experience in valuing
commercial and industrial properties in Santa Xxxxx County. In the event the
appraiser determines that there is a Material Adverse Effect, the cost of the
appraisal shall be borne by Trustor; otherwise, the cost of the appraisal shall
be borne by Beneficiary.
(2) To provide, maintain and deliver to Beneficiary property insurance
reasonably satisfactory to and with loss payable to Beneficiary. Without
limiting the generality of the foregoing, Beneficiary shall have the right to
reasonably approve the nature and scope of the property Insurance coverage, the
identity of the insurer(s), the amount of insurance coverage and the amount of
any deductibles or self-insured retention. All amounts collected under any
property Insurance policy shall be released to Trustor for the repair and
restoration of the Property pursuant to a disbursement procedure reasonably
acceptable to Beneficiary, provided that if, with Beneficiary's consent, the
Property is not to be so repaired or restored, all amounts so collected shall be
applied by Beneficiary upon the indebtedness secured hereby. Such release or
application shall not cure or waive any default or notice of 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 action or proceeding in which Beneficiary
or Trustee may appear, and in any suit brought by Beneficiary to foreclose this
Deed of Trust.
(4) To pay: at least ten days before delinquency all taxes and
assessments affecting the Property, including assessments on appurtenant water
stock; when due, all encumbrances, charges and liens, with interest, on the
Property or any part thereof, which appear to be prior or superior hereto; all
costs, fees and expenses of this Trust.
Should Trustor be in default under this Deed of Trust, beyond applicable
notice and cure periods, due to Trustor's failure to make any payment or to do
any act as herein provided, then Beneficiary or Trustee, but without obligation
so to do but with prior notice to 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 reasonably deem necessary to protect the security hereof,
Beneficiary or Trustee being authorized to enter upon the Property for such
purposes; appear in and defend any action or proceeding purporting to affect the
security hereof or the rights or powers
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of Beneficiary or Trustee; pay, purchase, contest or compromise any encumbrance,
charge or lien which in the judgment of either appears to be prior 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 the 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) To comply with the following provisions concerning environmental laws
and hazardous substances, failure with which to comply could reasonably be
expected to have a Material Adverse Effect.
(a) As used in this paragraph 6:
(i) "Environmental Laws" shall mean all federal, state and local
laws, ordinances, rules and regulations now or hereafter in force, as amended
from time to time, in any way relating to or regulating human health or safety,
industrial hygiene or protection of the environment.
(ii) "Hazardous Substances" shall mean any substance or material
that is described, designated or regulated as a toxic or hazardous substance,
waste or material or a pollutant or contaminant, or words of similar import, in
any of the Environmental Laws.
(iii) "Release" shall mean any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping
or disposing into the environment, including continuing migration, of Hazardous
Substances into, onto or through the soil, surface water or groundwater of the
Property, whether or not caused by, contributed to, permitted by, acquiesced to
or known to Trustor in violation of Environmental Laws.
(iv) "User" means any person other than Trustor who occupies, uses
or comes onto or has occupied, used or come onto the Property or any part
thereof and any agent or contractor of such a person.
(b) Trustor represents and warrants to Beneficiary that as of the date of
this Deed of Trust and to the best of Trustor's knowledge, based on due inquiry
and investigation (which inquiry and investigation, as to any property other
than the Property, is based on and limited to environmental assessments prepared
by Trustor's consultants):
(i) except as previously disclosed in writing by Trustor to
Beneficiary (A) no Hazardous Substances in excess of permitted levels or
reportable quantities under applicable Environmental Laws are present in, on or
under the Property or any nearby real property which could migrate to the
Property, (B) no Release or threatened Release exists or has occurred, (C)
neither Trustor nor any User has ever used the Property or any part thereof for
the production, manufacture, generation, treatment, handling, storage,
transportation or disposal of Hazardous Substances in violation of Environmental
Laws, (D) no underground, surface or elevated storage tanks of any kind, xxxxx
(except domestic water xxxxx), septic tanks, pits, ponds or other impoundments
("Tanks") are or ever have been located in or on the Property, and (E) no
investigation, claim, demand, action or proceeding of any kind relating to any
Release or threatened Release or any past or present violation of any
Environmental Laws relating to the Property has been made or commenced, or is
pending, or is being threatened by any governmental authority or other person;
(ii) all operations and activities at, and the use and occupancy
of, the Property comply with all applicable Environmental Laws to the extent
that non-compliance with any of the
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foregoing could reasonably be expected to have a Material Adverse Effect;
(iii) Trustor is in strict compliance with, and Trustor has not
received any notice that any User is not in compliance with, every permit,
license and approval required by all applicable Environmental Laws for all
activities and operations at, and the use and occupancy of, the Property, to the
extent that non-compliance with any of the foregoing could reasonably be
expected to have a Material Adverse Effect;
(iv) neither the Property, nor any portion thereof, nor any
adjacent property or portion thereof, has been or is proposed to be listed
under the Comprehensive Environmental Response, Compensation and Liability
Act (42 U.S.C. Section 9601, et seq.), or any analogous state law; and
(v) any written disclosure submitted by or on behalf of Trustor to
Beneficiary at Beneficiary's request concerning any Release or threatened
Release, past or present compliance by Trustor, User or any other person of any
Environmental Laws applicable to the Property, the past and present use and
occupancy of the Property, any environmental concerns relating to the Property
and the like, was true and complete when submitted to the extent that any
inaccuracy or incompleteness of the disclosure could reasonably be expected to
have a Material Adverse Effect.
(c) Trustor agrees that:
(i) Except in the ordinary course of business, and in compliance
with ail applicable Environmental Laws, Trustor promises that neither Trustor
nor any User shall use, produce, manufacture, generate, treat, handle, store,
transport, or dispose of any Hazardous Substances in, on or under the Property,
or use the Property for any such purposes in such a manner as could reasonably
be expected to have a Material Adverse Effect;
(ii) Trustor shall not cause, contribute to, permit or acquiesce
to any Release or threatened Release;
(iii) Trustor shall comply fully, and shall cause every User to
comply fully, with all Environmental Laws applicable to the Property, and all
other laws, ordinances and regulations applicable to the use or occupancy
thereof, or any operations or activities therein or thereon, to the extent that
non-compliance with any of the foregoing could reasonably be expected to have a
Material Adverse Effect;
(iv) With respect to any Tanks disclosed in writing to
Beneficiary, Trustor shall comply with all Environmental Laws and any
requirements of city or county fire departments, applicable to the maintenance
and use of such Tanks, including, without limitation, Title 40 of the Code of
Federal Regulations part 112, the non-compliance with which could reasonably be
expected to have a Material Adverse Effect;
(v) To facilitate performance of Trustor's obligations under
subparagraphs (c)(l), (ii), (iii) and (iv) of this paragraph A (6)(c), Trustor
shall regularly inspect the Property, monitor the activities and operations of
every User and confirm that every User has obtained and fully complies with all
permits, licenses and approvals required by all applicable Environmental Laws,
the non-compliance with which could reasonably be expected to have a Material
Adverse Effect;
(vi) Promptly after Trustor obtains any information indicating any
Release or threatened Release, or that Hazardous Substances in, on or under any
nearby property could migrate to the Property or a violation of any
Environmental Laws may have occurred or could occur regarding the Property,
Trustor shall give notice thereof to Beneficiary with a reasonably detailed
description of the event, occurrence or condition in question;
(vii) If Beneficiary obtains any information that Beneficiary
believes in good faith
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indicates a reasonable possibility of a Release or threatened Release, or that
Hazardous Substances in, on or under any nearby real property could migrate to
the Property or any violation of any Environmental Laws may have occurred or
could occur regarding the Property, then Trustor shall, at the expense of
Trustor, promptly after a request by Beneficiary, or Beneficiary may at
Trustor's expense any time prior to completion of a judicial or nonjudicial
foreclosure, engage a qualified environmental engineer to conduct a
comprehensive environmental assessment of the Property and prepare and submit
to Beneficiary a written report containing the findings and conclusions
resulting from such investigation. Trustor shall, on demand, pay to Beneficiary
all sums expended by Beneficiary in connection with any such comprehensive
environmental assessment;
(viii) Trustor shall permit, or cause any User to permit,
Beneficiary or its agents or independent contractors to enter and inspect the
Property (including the taking of building materials, soil and groundwater
samples) at any reasonable time and after reasonable notice, except in an
emergency, whether or not a default has occurred under this Deed of Trust, and
including after the commencement of judicial or nonjudicial foreclosure
proceedings, for purposes of determining, to the extent reasonably necessary:
the existence, location or nature of any Hazardous Substances into, onto, or
spread beneath or from the Property, that is located or has been spilled,
disposed of, discharged or released on, under or about the Property. Trustor
acknowledges that all inspections and reviews undertaken by Beneficiary are
solely for the benefit and protection of Beneficiary and agrees that Beneficiary
shall have no duty to Trustor with respect to Hazardous Substances or
Environmental Laws as a result of any such inspections, and such inspections
shall not result in a waiver of any default by Trustor. If Trustor or any User
fails to comply fully with the terms of this provision, Beneficiary may obtain
affirmative injunctive relief to compel such compliance; and
(ix) If any Release or threatened Release exists or occurs before
this Deed of Trust is reconveyed or foreclosed upon, or if Trustor is in breach
of any of its representations, warranties or covenants as set forth in this
paragraph A (6), Trustor shall promptly give notice of the condition to
Beneficiary, and Trustor shall at its own expense cause all Hazardous Substances
to be cleaned up and removed from the Property, and the Property shall be
restored, in compliance with all applicable Environmental Laws and other laws,
ordinances, rules and regulations (the "Remediation Work"). If requested by
Beneficiary, Trustor shall submit to Beneficiary, for Beneficiary's prior
approval, complete plans and specifications for all Remediation Work to be done
before any Remediation Work is performed, except in an emergency. Alternatively,
if Trustor is in default hereunder beyond applicable notice and cure periods,
Beneficiary may cause such Remediation Work to be completed at Trustor's
expense.
(d) Beneficiary shall have the right to advise appropriate governmental
authorities of any environmental condition on or affecting the Property to the
extent that Beneficiary is obligated to do so under applicable law.
(e) Trustor and its successors and assigns shall indemnify, defend,
protect, and hold harmless Beneficiary, and/or Trustee, its directors, officers,
employees, agents, shareholders, successors and assigns and their officers,
employees or agents, from and against any and all claims, suits, damages,
foreseeable and unforeseeable consequential damages, liens, losses, liabilities,
interest, judgments, cleanup costs, demands, actions, causes of action,
injuries, administrative proceedings and orders, consent agreements and orders,
penalties, costs and expenses (including any fees and expenses incurred in
enforcing this indemnity, any reasonable out-of-pocket litigation costs, sums
paid in settlement of claims, and all reasonable consultant, expert and counsel
fees and expenses, including in-house legal services) of any kind whatsoever
("Claims") paid, incurred or suffered by, or asserted against Beneficiary and/or
Trustee, including but not limited to Claims arising out of loss of life, injury
to persons, trespass or damage to or contamination of property or natural
resources, or injury to business, in connection with or arising out of the
activities of Trustor on the Property, Trustor's predecessors in interest, third
parties who
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have been invited, permitted or trespassed on the Property, or parties in a
contractual relationship with Trustor, or any of them, or which directly or
indirectly arise out of or result from or in any way connected with the
Property, whether or not caused by Trustor or within the control of Trustor,
including without limitation: (i) the Release, threatened Release of any
Hazardous Material at, from, within, on or under the Property; (ii) Trustor's
breach of any of the representations, warranties and covenants contained herein
and (iii) Trustor's violation or alleged violation of any applicable
Environmental Law. The foregoing indemnity shall not include any Claims to the
extent attributable to the actions or failure to act of Beneficiary or any
persons for whom Beneficiary is legally responsible.
(f) Trustor's representations, warranties, covenants and indemnities
contained herein shall survive the occurrence of any event whatsoever, including
without limitation the payoff of the promissory note secured hereby, the
reconveyance or foreclosure of this Deed of Trust, the acceptance by Trustee of
a deed in lieu of foreclosure, or any transfer or abandonment of the Property.
B. It is mutually agreed:
(1) That any award of damages in connection with any condemnation for
public use of or injury to said property or any part thereof is hereby assigned
and shall be paid to Beneficiary who shall apply or release such moneys received
by it in the same manner and with the same effect as above provided for
disposition of proceeds of fire or other insurance.
(2) That by accepting payment of any sum secured hereby after its due
date, Beneficiary does not waive its right to require prompt payment when due of
all other sums so secured.
(3) 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 of Trust 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 the 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.
(4) That upon written request of Beneficiary stating that all sums
secured hereby have been paid or otherwise satisfied, and upon surrender of this
Deed of Trust and said note to Trustee for cancellation and retention or other
disposition as Trustee in its sole discretion may choose 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."
(5) 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 by a receiver to be
appointed by a court, and without regard to the adequacy of any security for the
indebtedness hereby secured, enter upon and take possession of the Property or
any part thereof, in its 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 hereby, and in such order as
Beneficiary may determine. The entering upon and taking possession of the
Property, the collection of such rents, 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.
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(6) 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 cause to be sold said property, which notice Trustee
shall cause to be filed for record. Beneficiary also shall deposit with Trustee
this Deed of Trust, said note and all documents evidencing expenditures 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 the
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 the
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 or 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 then 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.
Notwithstanding anything to the contrary in the Note, this Deed of Trust,
the Securities Purchase Agreement between Trustor and Beneficiary dated of even
date herewith, or any other document or instrument evidencing or securing the
indebtedness evidenced by the Note, no failure of Trustor to pay, observe or
perform any term or condition thereof, and no inaccuracy of any representation
or warranty thereunder, shall constitute a default of Trustor until Beneficiary
has delivered Trustor written notice thereof and Trustor has failed to cure the
same (i) within ten (10) days thereafter as regards matters that may be cured
solely by the payment of money, or (ii) within thirty (30) days thereafter as
regards all other matters, provided, however, that if such matter cannot
reasonably be cured within thirty (30) days, as long as Trustor promptly
commences such cure and diligently proceeds with such cure, such period shall be
extended for the reasonable time required to perform such cure.
(7) 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 the 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 of Trust is recorded and the name
and address of the new Trustee.
(8) That this Deed of Trust 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 of Trust, whenever the context so requires, the
masculine gender includes the feminine and/or neuter, and the singular number
includes the plural.
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(9) That Trustee accepts this Trust when this Deed of Trust, duly
executed and acknowledged, is made a public record as provided by law. Trustee
is not obligated to notify any party hereto of 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.
The undersigned Trustor, requests that a copy of any notice of default
and any notice of sale hereunder be mailed to it at its address hereinbefore
set forth.
SIGNATURE OF TRUSTOR
SIPEX CORPORATION
By /s/ Xxxxx X. XxXxxxxx
------------------------------
Its Exec Vice President
STATE OF CALIFORNIA )
)ss.
COUNTY OF SANTA XXXXX )
On September 26, 2002 before me, Xxxxxxx Xxxxxxxxx, personally appeared Xxxxxx
X. Xxxxxx personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person(s) or the entity upon behalf
of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature
/s/ Xxxxxxx Xxxxxxxxx [NOTARY SEAL]
---------------------------
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(This area for official notarial seal)
DO NOT RECORD REQUEST FOR FULL RECONVEYANCE
TO FIRST AMERICAN TITLE INSURANCE COMPANY, TRUSTEE:
The undersigned is the legal owner and holder of the note or notes, and of all
other indebtedness secured by the foregoing Deed of Trust. Said note or notes,
together with all other indebtedness secured by said Deed of Trust, have been
fully paid and satisfied; and you are hereby requested and directed, on payment
to you of any sums owing to you under the terms of said Deed of Trust, to cancel
said note or notes above mentioned, and all other evidences of indebtedness
secured by said Deed of Trust delivered to you herewith, together with the said
Deed of Trust, and to reconvey, without warranty, to the parties designated by
the terms of said Deed of Trust, all the estate now held by you under the same.
Dated
--------------------------------
Please mail Deed of Trust,
Note and Reconveyance to
-----------------------------------------------------
DO NOT LOSE OR DESTROY THIS DEED OF TRUST OR THE NOTE WHICH IT SECURES. BOTH
MUST BE DELIVERED TO THE TRUSTEE FOR CANCELLATION BEFORE RECONVEYANCE WILL BE
MADE.
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EXHIBIT "A"
TO
DEED OF TRUST WITH ASSIGNMENT OF RENTS
Real property in the City of Milpitas, County of Santa Xxxxx, State of
California, described as follows:
PARCEL ONE:
Parcel 2, as shown on that certain Map entitled, "Parcel Map being a portion of
Parcel 3, as shown upon that certain Parcel Map recorded in Book 493 of Maps
page(s) 19 and 20, Records of Santa Xxxxx County," which Map was filed for
record in the office of the Recorder of the County of Santa Xxxxx, State of
California on May 24, 1989 in Book 586 of Maps, at pages 37 and 38.
PARCEL TWO:
An easement for the purpose of ingress and egress, said easement being more
particularly described as follows:
Being a portion of Parcel 3 as shown upon that certain Parcel Map, recorded in
Book 493 of maps, at page 19 and 20, Records of Santa Xxxxx County, being more
particularly described as follows:
Commencing at a point on the Northeasterly boundary line of said Parcel 3,
said point being the Southerly terminus of the course shown as "R=75 angle =
124 degrees 50' 34" L=l63.42" on said map.
Thence, from said point of commencement, along said Northeasterly boundary line
of said Parcel 3, from a tangent bearing of N. 41 degrees 25' 04" W., along a
curve to the right, having a radius of 75.00 feet, through a central angle of
17 degrees 25' 24", for an arc length of 22.81 feet; thence, leaving said
Northeasterly line N.23 degrees 59'40" W. 75.00 feet; thence S. 66 degrees 00'
20" W., 21.77 feet; thence, N. 23 degrees 59' 40" W., 214.85 feet to the true
point of beginning; thence, from said true point of beginning S. 66 degrees 00'
20" W., 116.50 feet; thence N. 23 degrees 59' 40" W., 12.50 feet; thence N.
66 degrees 00' 20" E. 116.50 feet; thence, S. 23 degrees 59' 40" E., 12.50 feet
to the true point of beginning.
PARCEL THREE:
An easement for the purpose of a Private Sanitary Sewer and Private Storm
Drainage, said easement being more particularly described as follows:
Being a portion of Parcel 3 as shown upon that certain Parcel Map recorded in
Book 493 of Maps, at pages 19 and 20, Records of Santa Xxxxx County, being more
particularly described as follows:
Commencing at a point in a Northeasterly boundary line of said Parcel 3 said
point being the
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Southerly terminus of the course shown as "R=75, angle = 124 degrees
50'34", L=163.42" on said Map.
Thence, from said point of commencement, along said Northeasterly boundary line
of said Parcel 3, from a tangent bearing of N. 41 degrees 25' 04" W, along a
curve to the right, having a radius of 75.00 feet, through a central angle of 17
degrees 25' 24", for an arc length of 22.81 feet; thence, leaving said
Northwesterly line N. 23 degrees 59 `40" W., 40.00 feet to a point in the line
designated as "10' PSUE & PE" on said Map said point being the true point of
beginning; thence, from said true point of beginning, N. 23 degrees 59' 40" W.
35.000 feet; thence, N. 66 degrees 00' 20" E., 35.00 feet to a point in said
line designated as "10' PSUE and PE"; thence, along said line, from a tangent
bearing of S. 37 degrees 55' 59" W., along a curve to the left, having a radius
of 85.00 feet, through a central angle of 33 degrees 51' 18", for an arc length
of 50.22 feet to the true point of beginning.
PARCEL FOUR:
An easement for the purpose of Private Storm Drainage, said easement being more
particularly described as follows:
Being a portion of Parcel 3 as shown upon that certain Parcel Map recorded in
Book 493 of Maps, at pages 19 and 20, Records of Santa Xxxxx County, being more
particularly described as follows:
Being a strip of land uniform width of 10.00 feet, measured at right angles, the
center line of which is described as follows:
Commencing at a point in a Northeasterly boundary line of said Parcel 3 said
point being the Southerly terminus of the course shown as "R=75, angle 124
degrees 50'34", L = 163.42" on said Map.
Thence, from said point of commencement, along said Northeasterly boundary line
of said Parcel 3, from a tangent bearing of N 41 degrees 25' 04" W., along a
curve to the right, having a radius of 75.00 feet, through a central angle of 17
degrees 25' 24", for an arc length of 22.81 feet; thence, leaving said
Northeasterly line N. 23' 59' 40" W. 75.00; thence, S. 66 degrees 00' 20" W.
21.77 feet; thence N. 23 degrees 59' 40" W, 227.35 feet; thence, S. 66 degrees
00' 20" W., 116.50 feet; thence, N. 23 degrees 59' 46" W., 36.25 feet to the
true point of beginning; thence, from said true point of beginning S. 54 degrees
14' 14" W., 6.13 feet; thence, S. 72 degrees 32' 10" W., 231.38 feet; thence, S.
11 degrees 55' 04" E. 151.16 feet to a point in a line parallel with and 6.00
feet Northeasterly, measured at right angles, from the Southwesterly line of
said Parcel 3; thence, along said parallel line S. 23' 59' 40" E., 447.50 feet
to the intersection thereof with the adjusted lot line per City of Milpitas,
Resolution N. 5318, dated July 15, 1986; said point being the terminal point of
herein described center line.
PARCEL FIVE:
An easement for the purpose of Private Sanitary Sewer and Private Storm
Drainage, said easement being more particularly described as follows:
2
Being a portion of parcels 2 and 3 as shown upon that certain parcel Map,
recorded in Book 493 of Maps at pages 19 and 20, Records of Santa Xxxxx County,
being more particularly described as follows:
Commencing at the most Southerly corner of said Parcel 3; thence from said Point
of Commencement, along the Southwesterly boundary line of said Parcel 2, S 23
degrees 59' 40" E, 10.00 feet to the True Point of Beginning; thence, from said
True Point of Beginning, leaving said line, at right angles, parallel with the
Southeasterly boundary line of said Parcel 3, N 66 degrees 00' 20" E, 20.00
feet; thence, at right angles, parallel with the aforementioned Southwesterly
boundary line, N 23 degrees 59' 40" W, 42.50 feet; thence, at right angles,
parallel with the aforementioned Southeasterly boundary line, S 66 degrees 00'
20" W, 20.00 feet to a point in the Southwesterly boundary line of said Parcel
3; thence, along said Southwesterly boundary line of said Parcel 3 and Parcel 2
at right angles, S 23 degrees 59' 40" E, 42.50 feet to the True Point of
Beginning.
APN: 000-00-000
ARB: 86-28-13.03.06
3
Order No.
Escrow No.
Loan No.
WHEN RECORDED MAIL TO:
Xxxxxxxx Xxxxxxxx, Esq.
Xxxxxxx & West LLP
Two Xxxx Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
SPACE ABOVE THIS LINE FOR RECORDER'S USE
DEED OF TRUST WITH ASSIGNMENT OF RENTS
(LONG FORM)
(ACCELERATION CLAUSE)
This DEED OF TRUST, made September 27, 2002, between SIPEX CORPORATION, a
Massachusetts corporation, herein called TRUSTOR, whose address is 00 Xxxxxxx
Xxxxxx, Xxxxxxxxx, XX 00000, Attention: Chief Financial Officer, FIRST AMERICAN
TITLE INSURANCE COMPANY, a California corporation, herein called TRUSTEE, and S
& F FINANCIAL HOLDINGS INC., a corporation incorporated in Canada, herein called
BENEFICIARY
WITNESSETH: That Trustor grants to Trustee in Trust, with Power of Sale, that
property (the "Property") in the City of Milpitas, County of Santa Xxxxx, State
of California, described as:
SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF
together with the rents, issues and profits thereof, subject, however, to the
right, power and authority hereinafter given to and conferred upon Beneficiary
to collect and apply such rents, issues and profits for the Purpose of Securing
(1) payment of the sum of U.S. $12,000,000.00, with interest thereon according
to the terms of that certain Convertible Secured Note (the "Note") of even date
herewith made by Trustor, payable to order of Beneficiary, and extensions or
renewals thereof, (2) the performance of each agreement of Trustor incorporated
by reference or contained herein and (3) payment of additional sums and interest
thereon which may hereafter be loaned to Trustor, or its successors or assigns,
by Beneficiary when evidenced by a promissory note or notes reciting that they
are secured by this Deed of Trust.
Notwithstanding anything in this Deed of Trust to the contrary, in no event
shall the Property include any personal property or equipment owned or leased by
Trustor, whether or not located on the Property or used in connection therewith,
regardless of whether any such personal property or equipment is attached to the
Property or constitutes a fixture under applicable law, so long as such
equipment is not part of the plumbing, electrical or heating, ventilating or air
conditioning systems essential to the operation of the base buildings located on
the Property, as opposed to the operation of Trustor's specialized systems
(including, without limitation, "clean room" facilities) from time to time
incorporated in the buildings located on the Property.
If Trustor shall sell, convey, or alienate the Property, or any part thereof, or
any interest therein, or shall be divested of its title or any interest therein
in any manner or way, whether voluntarily of 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 any
indebtedness or obligations secured hereby, irrespective of the maturity date
specified in any note evidencing same, immediately due and payable.
1
A. To protect the security of this Deed of Trust, Trustor agrees:
(1) To keep the Property in good condition and repair; not to remove or
demolish any building thereon; to complete or restore promptly and in good and
workmanlike manner any building which may be constructed, damaged or destroyed
thereon, provided that Beneficiary makes available to Trustor the proceeds of
any insurance received on account of such damage or destruction, and to pay
when due all claims for labor performed and materials furnished therefor; to
comply with all laws affecting the Property or requiring any alterations or
improvements to be made thereon; to comply with all recorded instruments
relating to the maintenance or use of the Property; not to commit or permit
waste thereof; not to commit, suffer or permit any act upon the Property in
violation of law; to do all other acts which from the character or use of the
Property may be reasonably necessary to preserve the value thereof, the specific
enumerations herein not excluding the general. Notwithstanding anything to the
contrary in this Deed of Trust, no failure to comply with any such laws or
recorded instruments or to do any such acts shall constitute a default of
Trustor unless it could reasonably be expected to have a Material Adverse
Effect, which, for the purposes of this Deed of Trust, shall be deemed to occur
if the cost to remedy the failure or non-compliance or the likely reduction in
the fair market value of the Property as a result of the failure or
non-compliance, which ever is greater, exceeds $600,000. The determination of
the fair market value of the Property and its likely reduction shall be made by
Xxxx Xxxx of Berliner, Xxxxxx & Xxxx, 000 Xxxxxx Xxxxxx, Xxxxx 0, Xxxx Xxxx, XX
00000, or such other appraiser as shall be approved by Trustor and Beneficiary
who is a Member of the Appraisal Institute and has experience in valuing
commercial and industrial properties in Santa Xxxxx County. In the event the
appraiser determines that there is a Material Adverse Effect, the cost of the
appraisal shall be borne by Trustor; otherwise, the cost of the appraisal shall
be borne by Beneficiary.
(2) To provide, maintain and deliver to Beneficiary property insurance
reasonably satisfactory to and with loss payable to Beneficiary. Without
limiting the generality of the foregoing, Beneficiary shall have the right to
reasonably approve the nature and scope of the property insurance coverage, the
identity of the insurer(s), the amount of insurance coverage and the amount of
any deductibles or self-insured retention. All amounts collected under any
property insurance policy shall be released to Trustor for the repair and
restoration of the Property pursuant to a disbursement procedure reasonably
acceptable to Beneficiary, provided that if, with Beneficiary's consent, the
Property is not to be so repaired or restored, all amounts so collected shall be
applied by Beneficiary upon the indebtedness secured hereby. Such release or
application shall not cure or waive any default or notice of 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 action or proceeding in which Beneficiary
or Trustee may appear, and in any suit brought by Beneficiary to foreclose this
Deed of Trust.
(4) To pay: at least ten days before delinquency all taxes and
assessments affecting the Property, including assessments on appurtenant water
stock; when due, all encumbrances, charges and liens, with interest, on the
Property or any part thereof, which appear to be prior or superior hereto; all
costs, fees and expenses of this Trust.
Should Trustor be in default under this Deed of Trust, beyond applicable
notice and cure periods, due to Trustor's failure to make any payment or to do
any act as herein provided, then Beneficiary or Trustee, but without obligation
so to do but with prior notice to 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 reasonably deem necessary to protect the security hereof,
Beneficiary or Trustee being authorized to enter upon the Property for such
purposes; appear in and defend any action or proceeding purporting to affect the
security hereof or the rights or powers
2
