WHEN RECORDED MAIL TO:
ALL-INCLUSIVE DEED OF TRUST
This ALL-INCLUSIVE DEED OF TRUST, made March 26,
1997 between EMERITUS CORPORATION, a Washington
Corporation, hereinafter called TRUSTOR, whose
address is ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; Chicago Title Insurance
Company, a Missouri corporation, herein called
TRUSTEE; NORTHWEST RETIREMENT, an Oregon general
partnership, herein called BENEFICIARY,
WITNESSETH: That Trustor grants to Trustee in
Trust, with Power of Sale, that property in the
County of San Diego, State of California,
described as:
(See legal description attached.)
For the purpose of securing (1) payment of the sum
of Seven Hundred Forty Nine Thousand Five Hundred
Twelve and 17/100 Dollars ($749,512.17) with
interest thereon according to the terms of an all-
inclusive promissory note of even date herewith
(hereinafter the "Secured Note") made by Trustor,
payable to the order of Beneficiary, and
extensions or renewals thereof, and (2) the
performance of each agreement of Trustor
incorporated by reference contained herein.
A. Senior Deeds of Trust:
This is an All-Inclusive Deed of Trust,
securing the Secured Note and is subject and
subordinate to the following instruments:
1. A Deed of Trust recorded February
26,1988 as Document No. 88-089130, Official
Records of San Diego County, California, in the
original principal sum of Four Hundred Fifty-Six
Thousand and no/100 Dollars ($456,000.00 )
executed by Northwest Retirement, an Oregon
general partnership consisting of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and
▇▇▇▇ Investments, Inc., a Washington corporation,
as Trustor, in favor of ▇▇▇▇▇▇ ▇. ▇▇▇▇ and
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, as Beneficiaries ( the "▇▇▇▇
Senior Deed of Trust"), securing a note dated
February 1,1988, in the original amount of Four
Hundred Fifty-Six Thousand and no/100 Dollars
($456,000.00 ), in favor of ▇▇▇▇▇▇ ▇. ▇▇▇▇ and
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, as Payees;
2. A Deed of Trust recorded February
26,1988 as Document No. 88-089129, Official
Records of San Diego County, California, in the
original principal sum of Five Hundred Ninety-Two
Thousand Two Hundred Thirty-Four and no/100
Dollars ($592,234.00 ) executed by Northwest
Retirement, an Oregon general partnership
consisting of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇ Investments, Inc., a
Washington corporation, as Trustor, in favor of
▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ as Beneficiaries (
the "▇▇▇▇▇ Senior Deed of Trust"), securing a note
dated February 1, I 988, in the original amount of
Five Hundred Ninety-Two Thousand Two Hundred
Thirty-Four and no/100 Dollars ($592,234.00 ), in
favor of ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇, as
Payees;
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3. A Deed of Trust recorded February
26,1988 as Document No. 88-089128, Official
Records of San Diego County, California, in the
original principal sum of Three Million Three
Hundred Sixty Thousand and no/100 Dollars
($3,360,000.00) executed by Northwest Retirement
an Oregon Partnership, as Trustor, in favor of
Redlands Federal Savings and Loan Association, as
Beneficiary, securing a note dated January
20,1988, in the original amount of Three Million
Three Hundred Sixty Thousand and no/100 Dollars
($3,360,000.00), in favor of Redlands Federal
Savings and Loan Association, as Payee, AS AMENDED
AND RESTATED IN ITS ENTIRETY by that certain
Amended and Restated Deed of Trust recorded March
__, 1997 as Document No. _____________, Official
Records of San Diego County, California, in the
original principal sum of Three Million Thirty
Thousand Seven Hundred Seventy Three and 40/100
Dollars ($3,030,773.40) executed by Trustor (as
Northwest Retirement's assignee), in favor of
Redlands Federal Bank, securing that certain
Restated Promissory Note dated March, 1997, in the
original amount of Three Million Thirty Thousand
Seven Hundred Seventy Three and 40/100 Dollars
($3,030,773.40), in favor of Redlands Federal
Bank, as Payee
(the "Redlands Note").
B. To protect the security of the All-Inclusive
Deed of Trust, Trustor agrees:
(1 ) To keep the property secured hereby
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 and to pay when due
all claims for labor performed and materials
furnished therefore (provided, however, Trustor's
obligation to restore set out herein shall be
limited to the extent that the holders of the
Senior Notes as defined in the Secured Note, and
the Redlands Note make insurance proceeds
available to Trustor for such purpose); except to
the extent any claim for payment is being
contested by Trustor and Trustor has posted
reasonable security for any liens which may arise
during the period of such contest, to comply with
all laws affecting the property secured hereby or
requiring any alterations or improvements to be
made thereon except to the extent duly and
lawfully contested by Trustor; not to commit or
permit waste thereon; not to commit, suffer or
permit any act upon the property secured hereby in
violation of law.
(2) To provide, maintain and deliver to
Beneficiary fire, vandalism and malicious mischief
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. However, provided that Trustor is not in
default hereunder, Beneficiary shall be required
to release all such proceeds to Trustor to be
applied to the reconstruction or repair of the
insured property. Such application or release
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 costs of evidence of title and attorney
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 All-Inclusive Deed of Trust.
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(4) To pay; (a) before delinquency all taxes
and assessments affecting the property secured
hereby; (b) when due, subject to the mutual
agreements of the parties as below set forth, all
encumbrances, charges and liens, with interest, on
the property secured hereby or any part thereof,
which appear to be prior or superior hereto other
than the ▇▇▇▇ and ▇▇▇▇▇ Senior Deeds of Trust
which shall be and remain the responsibility of
the Beneficiary, unless Trustor has exercised its
rights under the Secured Note to pay a portion of
the payments due thereunder directly to the holder
of the Senior Notes; and (c) all allowable
expenses of this Trust.
Should Trustor fail to make any payment or to
do any act as herein provided and should Trustor
fail to cure such failure within ten (10) days
after written notice thereof in the case of a
monetary obligation or within thirty (30) days
after written notice thereof in the case of non
monetary obligation, then without further notice
to or demand upon Trustor and without releasing
Trustor from any obligation hereof, Trustee or
Beneficiary 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 the property secured hereby 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
encumbrance, charge or lien which in the judgment
of either appears to be prior or superior hereto,
other than the liens of the Senior Deeds of Trust;
and, in exercising any such powers, pay allowable
expenses.
(5) To pay immediately and without demand all
sums so expended by Beneficiary or Trustee, with
interest from date of expenditure at the Default
Rate provided for in the Secured Note.
C. It is mutually agreed:
(1) That any award of damages in connection
with any condemnation for public use of or injury
to the property, or any part thereof, secured
hereby or any thereof is hereby assigned and shall
be paid to Beneficiary which may or shall, as
applicable, apply or release such monies 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 either to require prompt
payment when due of all other sums so secured or
to declare default for failure to pay.
(3) That at any time from time to time,
without liability therefore and without notice
upon written request of Beneficiary and Trustor
and presentation of this All-Inclusive Deed of
Trust and the Secured Note for endorsement,
Trustee may: reconvey any part of the property
secured hereby; 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, and upon surrender of this All-Inclusive
Deed of Trust and the Secured 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 the
property then held hereunder. The recitals in such
reconveyance of any matters or facts shall be
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conclusive proof of the truthfulness thereof. The
grantee in such reconveyance may be described as
"the person or persons legally entitled thereto."
(5) That upon default by Trustor in payment
of any indebtedness secured hereby or in
performance of any agreement hereunder, which is
not cured within any cure period provided for
herein or in the Secured Note, 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 the property secured hereby, which
notice Trustee shall cause to be filed for record.
Beneficiary also shall deposit with Trustee this
All-Inclusive Deed of Trust, the Secured Note and
all documents evidencing expenditures secured
hereby.
After the lapse of such time as may then be
required by law following 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 secured
hereby 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 secured hereby 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 then
repaid, with accrued interest at the Default Rate
provided for in the Secured Note; all other sums
then secured hereby; and the remaining, if any, to
the person or persons legally entitled thereto
(6) 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 secured hereby 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 All-
Inclusive Deed of Trust is recorded and the name
and address of the new Trustee.
(7) That this All-Inclusive 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
Secured Note secured hereby, whether or not named
as Beneficiary herein. In this All-Inclusive Deed
of Trust, whenever the context so requires, the
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masculine gender includes the feminine and/or
neuter, and the singular number includes the
plural.
(8) That Trustee accepts this Trust when
this All-Inclusive 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.
D. The Parties Further Agree:
(1) By Beneficiary's acceptance of this All-
Inclusive Deed of Trust, Beneficiary agrees for
the benefit of Trustor, that provided Trustor is
not in default on the Secured Note, Beneficiary
shall pay all installments of principal and
interest which become due under the terms of the
Senior Notes unless Trustor has exercised its
rights under the Secured Note to make payments on
behalf of Trustor directly to the holder of the
Senior Note. Notwithstanding the foregoing, in the
event Trustor shall be in default on the Secured
Note, although Beneficiary's obligation under the
Senior Notes shall not be deferred until the
default on the Secured Note is cured, Trustor
shall, in such event, have no recourse against
Beneficiary for any damages suffered by it as a
result of Beneficiary's non-payment, if any, of
the Senior Notes as a result of Trustor's default
hereunder. Should Beneficiary default in any of
the installments as to the payment of the Senior
Notes at a time when Trustor is not in default in
the performance of the obligations of the Trustor
under the Secured Note or this All-Inclusive Deed
of Trust, the Trustor may make said payments
directly to the holder of such Senior Notes; any
and all payments so made shall be credited to the
Secured Note against the next succeeding
installments of principal and interest. Nothing
contained herein shall be construed to create a
third party beneficiary relationship between the
Beneficiary and any other person, including the
holders of the Senior Notes.
(2) Notwithstanding any covenants contained
in the Senior Notes or Deeds of Trust securing
same, Beneficiary shall have no further duty under
this All-Inclusive Deed of Trust when: (i) the
lien of this All-Inclusive Deed of Trust has been
extinguished by foreclosure sale or (ii) this All-
Inclusive Deed of Trust has been duly reconveyed
after payment in full of the Secured Note and the
Senior Notes.
If at any time the total of: the unpaid
balance of the Secured Note, the accrued interest
thereon, all other sums due under the terms
thereof and all sums advanced by Beneficiary
pursuant to the terms of this All-Inclusive Deed
of Trust, is equal to or less than the unpaid
principal balance of the Senior Notes and accrued
interest thereon, the Secured Note shall be
canceled and the property secured hereby shall be
reconveyed from the lien of this All-Inclusive
Secured Deed of Trust.
(3) Trustor and Beneficiary agree that in
the event the proceeds of any condemnation award
or settlement in lieu thereof, or the proceeds of
any casualty insurance covering destructible are
applied by the holders of the Senior Notes in
reduction of the unpaid principal amount thereof,
the unpaid principal balance of the Secured Note
secured hereby shall be reduced by an equivalent
amount and be deemed applied to the last sums due
under the Secured Note.
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(4) Any demand hereunder delivered by
Beneficiary to Trustee for the foreclosure of the
lien of this All-Inclusive Deed of Trust may be
not more than the sum of the following amounts:
(i) The equity of Beneficiary in the Secured Note,
being the difference between the then unpaid
balance of principal and interest accrued and
unpaid on the Secured Note on the date of such
foreclosure sale and the then unpaid balance of
principal and interest so accrued and unpaid on
the Senior Notes as of the date of such
foreclosure sale; plus (ii) The aggregate of all
amounts theretofore paid by Beneficiary pursuant
to the terms of this All-Inclusive Deed of Trust
prior to the date of such foreclosure sale, for
taxes and assessments, insurance premiums,
delinquency charges, foreclosure costs, and any
other sums advanced by Beneficiary pursuant to the
terms of this All-Inclusive Deed of Trust, to the
extent the same were not previously repaid by
Trustor to Beneficiary; plus (iii) The costs of
foreclosure together with attorney fees and costs
incurred by Beneficiary in enforcing this All-
Inclusive Deed of Trust or the Note secured hereby
as permitted by law.
(5) Notwithstanding any provision to the
contrary herein contained, Beneficiary for itself,
its successors and its assigns, agrees, that, in
the event of a foreclosure of this All-Inclusive
Deed of Trust, it will, at the trustee s sale,
offset its bid b an amount not exceeding the
amount representing the total amount then due
under the Secured Note plus any advances or other
disbursements which Beneficiary and its successors
or assigns, may, by law, be permitted to include
as an offset to its bid, less the then actual
total balance due upon any notes or obligations
secured by any and all deeds of trust having
priority over this All-Inclusive Deed of Trust and
covering the above described real property or any
portion thereof. The Trustee may rely on any
statements received from Beneficiary as to the
unpaid total balance, advances or disbursements
and such statements shall be deemed binding and
conclusive as between Beneficiary and Trustor, on
the one hand, and Trustee, on the other hand, to
the extent of such reliance.
(6) Trustor covenants and agrees that
Trustor shall perform and observe all obligations
to be performed and observed by Trustor under this
All-Inclusive Deed of Trust securing the Secured
Note and Beneficiary covenants and agrees that
Beneficiary shall perform and observe all
obligation to be performed and observed by it
under the Senior Notes and the Deeds of Trust.
(7) Beneficiary shall not have the right to
refinance either Senior Note unless (i) the
principal balance of the new debt after such
refinancing does not exceed the principal balance
of said Senior Note as the time of said
refinancing, (ii) the monthly principal and
interest payments due thereunder do not exceed the
monthly interest payments of Trustor due hereunder
and (iii) the holder thereof agrees to provide
Trustor with notice of any default thereunder and
an opportunity to cure same and with the right to
make a portion of the payments due under the
Secured Note directly to the holder thereof.
(8) All of the rights granted to Beneficiary
hereunder are subject to the rights of the holder
of the Senior Notes and the Redlands Note.
(9) This Agreement may be executed in any
number of counterparts, each of which shall be an
original; but such counterparts shall together
constitute but one and the same instrument.
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(10) This Agreement may not be amended
or modified in any respect whatsoever except by
instrument in writing signed by the parties
hereto. This Agreement constitutes the entire
agreement between the parties hereto and
supersedes all prior negotiations, discussions,
writings and agreements between them.
(11) In the event of a dispute between
the parties hereto with respect to the
interpretation or enforcement of the terms hereof,
the prevailing party in any action resulting
therefrom shall be entitled to collect from the
other its reasonable costs and attorneys' fees,
including its costs and fees on appeal.
IN WITNESS WHEREOF, the parties hereto
execute this All-Inclusive Deed of Trust.
TRUSTOR:
EMERITUS CORPORATION,
a Washington corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
--
▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Secretary
BENEFICIARY:
NORTHWEST RETIREMENT,
an Oregon general partnership.
By: /s/
-----------------------------
----
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Its: General Partner
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ACKNOWLEDGMENTS
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this 25th day of March, 1997, before me
personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇, to me known to
be the Secretary of the corporation that executed
the within and foregoing instrument, and
acknowledged said instrument to be the free and
voluntary act and deed of said corporation, for
the uses and purposes therein mentioned, and on
oath stated that he/she was authorized to execute
said instrument and that the seal affixed is the
corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my
hand and affixed my official seal the day and year
first above written.
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
---------------------
NOTARY PUBLIC
in and for the state of
Washington
Residing at Seattle, WA
My commission expires: 3-
30-99
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