QuickLinks
 -- Click here to rapidly navigate through this document
  



Exhibit 10.10  


 
 

LOAN AGREEMENT    
    


        This Loan Agreement (the "Agreement") is entered into as of the 5th day of February, 2002, by and between Agilent Technologies, Inc., a Delaware
corporation (the "Company"), and Adrian Dillon, an individual ("Employee"). 


RECITALS  


        A.    Employee
is an employee of the Company. 


        B.    In
accepting an offer of employment with the Company, Employee has found it necessary to relocate his residence. 


        C.    To
aid Employee in such relocation, the Company and Employee desire that the Company shall loan to Employee the total amount of Two Million Five Hundred Thousand Dollars
($2,500,000.00) on a secured basis as set forth below to assist Employee in purchasing a new principal residence in the vicinity of the offices of the Company, under the terms and conditions of this
Agreement. 


        NOW,
THEREFORE, the Company and Employee agree as follows: 


AGREEMENT  


        1.     Employee
has notified the Company that Employee requires funds for the purpose of purchasing a new
residence                                        
                                (the "Property"), which is in the area where
the Company is located. The Company agrees to lend to Employee the amount of Two Million Five Hundred Thousand Dollars ($2,500,000.00) (the "Loan") for the sole purpose of Employee's purchase of the
Property. 


        2.     Concurrently
with the execution and delivery of this Agreement, Employee and Employee's spouse                        shall execute and deliver
to the Company (i) a
promissory note (the "Note") in the amount of Two Million Five Thousand Dollars ($2,500,000.00) in the form attached hereto as Exhibit "A" and
(ii) a deed of trust (the "Deed of Trust") on the Property in the form attached hereto as Exhibit "B" which shall secure the Note. 


        3.     Employee
hereby makes the following representations and warranties to the Company and acknowledges that the Company is relying on such representations in making the Loan: 



        A.    Employee
has or will have prior to the closing of the Loan good and marketable title to the Property free and clear of all security interests and liens or encumbrances
securing monetary obligations, except that Employee intends to obtain a loan from Wells Fargo Bank or another reputable institutional lender (the "Primary Loan") secured by a deed of trust
constituting a first lien against the Property in favor of such lender, with a principal balance not in excess of One Million Dollars ($1,000,000.00). 


        B.    The
consent of no other person or entity except Employee's spouse,                        who will give her consent, is required to
grant the security interest in the Property
to the Company evidenced by the Deed of Trust. 


        C.    There
are no actions, proceedings, claims or disputes pending or, to Employee's knowledge, threatened against or affecting Employee or the Property, except as shall be
disclosed to the Company in writing prior to the date of this Agreement. 



1







 





        4.     Concurrently
with Employee's execution and delivery of this Agreement, Employee shall execute and deliver to the Company a certificate substantially in the form of  Exhibit "C" attached hereto. 



        5.     Employee
understands that the Loan provided for herein is not transferable by Employee and is conditioned upon the future performance of substantial services by Employee.
Employee further agrees that the Loan proceeds will be used only to purchase a principal residence of Employee being acquired in connection with the commencement of employment at a "new principal
place of work" within the meaning of Section 217 of the Internal Revenue Code of 1986. 


        6.     In
addition to Employee's execution and delivery of the Deed of Trust, Employee shall take any and all further actions that may from time to time be required to ensure
that the Deed of Trust creates a valid lien on the Property in favor of the Company, which shall secure the Note and be junior only to the Primary Loan. Employee shall furnish evidence reasonably
satisfactory to the Company that: (i) Employee has good and marketable title to the Property; (ii) the consent of no other person or entity other than Employee's
spouse                        
is required to grant a security interest in the Property to the Company; (iii) there is or will be no deed of trust, mortgage or encumbrance against the Property other than the Primary Loan. If
it should be determined as a result of examination of title or off-title inquiries that there are defects against title or matters which could result in defects against title to the
Property or that the consent of another person or entity is required to grant the Company a valid second priority lien on the Property, Employee shall take all actions necessary to remove such defects
and to obtain such consent and grant such lien on the Property. Failure of Employee to comply with the provisions of this paragraph 6 shall be deemed a default under the Note and the Deed of
Trust. 


        7.     This
Agreement and the exhibits attached hereto constitute the full and entire understanding and agreement between the parties hereto with regard to the subject hereof.
There are no oral agreements between the Company and Employee affecting this Agreement, and this Agreement supersedes and replaces any and all previous negotiations, arrangements, agreements and
understandings, if any, between the Company and the Employee with respect to the subject matter of this Agreement (including, without limitation, any provisions contained in that certain offer letter
dated November 6, 2001 by the Company to Employee regarding the subject matter of this Agreement and any discussions between the Company and the Employee in connection therewith). Neither this
Agreement nor any term hereof may be amended, waived, discharged or terminated other than by a written instrument signed by the party against whom enforcement of any such amendment, waiver, discharge
or termination is sought. 


        8.     Employee
understands that this Agreement does not constitute an employment agreement or a promise by the Company to continue Employee's employment. 



        9.     All
notices and other communications required or permitted hereunder shall be in writing and shall be deemed effectively given upon personal delivery to the party to be
notified or five (5) days after deposited with the United States mail, by registered or certified mail, postage prepaid, addressed to the address set forth on the signature page hereof, or such
other address as either party may furnish to the other party. 


        10.   Neither
party may assign the rights and/or duties under this Agreement to a third party without the prior written consent of the other party to this Agreement, except
that in the event that the Company is merged into another corporation, or substantially all the outstanding stock or assets of the Company are sold to another corporation and the surviving or
acquiring corporation agrees in writing to be bound by the rights and duties of the Company under this Agreement, then the company may assign its rights and duties hereunder to such acquiring or
surviving corporation. 


        11.   All
exhibits attached hereto are incorporated herein by this reference. 


2







 



        12.   This
Agreement shall be governed in all respects by the laws of the State of California. 



        13.   In
case one of more provisions herein shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein. 


        14.   Each
party hereto agrees to do such further acts and things and to execute, acknowledge and deliver or to cause to have executed, acknowledged and delivered such other
and further instruments and documents as may reasonably be requested by the other to carry out the purpose and intent of this Agreement. This Agreement may be executed in counterparts and each
counterpart shall be deemed an original instrument. 


        15.   Without
limiting the generality of paragraph 16 below, Employee hereby acknowledges that the Company has made no representation or warranty to Employee concerning
the income tax consequences of the loan to Employee, and Employee shall be solely responsible for ascertaining and bearing such tax consequences. 


        16.   THE
NOTE, THIS AGREEMENT, THE DEED OF TRUST AND ALL RELATED DOCUMENTATION ARE EXECUTED VOLUNTARILY AND WITHOUT ANY DURESS OR UNDUE INFLUENCE ON THE PART OR BEHALF OF THE
PARTIES HERETO, WITH THE FULL INTENT OF CREATING THE OBLIGATIONS AND SECURITY INTERESTS DESCRIBED HEREIN AND THEREIN. THE PARTIES ACKNOWLEDGE THAT: (i) THEY HAVE READ SUCH DOCUMENTATION;
(ii) THEY HAVE BEEN REPRESENTED IN THE PREPARATION, NEGOTIATION AND EXECUTION OF SUCH DOCUMENTATION BY LEGAL COUNSEL OF THEIR OWN CHOICE OR THAT THEY HAVE VOLUNTARILY DECLINED TO SEEK SUCH
COUNSEL; (iii) THEY UNDERSTAND THE TERMS AND CONSEQUENCES OF THE NOTE, THIS AGREEMENT, THE DEED OF TRUST AND ALL RELATED DOCUMENTATION AND THE OBLIGATIONS THEY CREATE; AND (iv) THEY ARE
FULLY AWARE OF THE LEGAL AND BINDING EFFECT OF THIS AGREEMENT, THE NOTE, THE DEED OF TRUST AND THE OTHER DOCUMENTS CONTEMPLATED BY THIS AGREEMENT. 



	INITIAL:	 	/s/  AD      
 (Employee)	 	INITIAL:	 	/s/  MOH      
 (Company)





        IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above. 



	EMPLOYEE:	 	COMPANY:
	

/s/  ADRIAN DILLON      
 Adrian Dillon	
 	

Agilent Technologies, Inc., a Delaware Corporation
	

Address:	
 	

395 Page Mill Road

Palo Alto, California 94306	
 	

By:	
 	

/s/  MARIE OH HUBER      

	 	 	 	 	Its:	 	Marie Oh Huber

	

 	
 	

 	
 	

Address:	
 	

395 Page Mill Road

Palo Alto, CA 94306
	

 	
 	

 	
 	

MARIE OH HUBER

Vice President, Assistant Secretary

and Assistant General Counsel




3







 
EXHIBIT A

SECURED PROMISSORY NOTE  



	$2,500,000.00	 	California

February 5, 2002





        1.     Payment. For value received, the undersigned, Adrian Dillon and                        
(collectively, "Borrower"; individually,
"A. Dillon" and                        , respectively), promise to pay to the order of Agilent Technologies, Inc. a Delaware
corporation (the "Company"), without interest, the principal sum of Two
Million Five Hundred Thousand and No/100 Dollars ($2,500,000.00) (the "Principal"), loaned to Borrower pursuant to that certain Loan Agreement between Borrower and the Company of even date herewith
(the "Loan Agreement"). 


        2.     Security. This Secured Promissory Note ("Note") is secured by a Deed of Trust dated of even date herewith, executed by
Borrower in favor of Company, as beneficiary, as the same may from time to time be amended, modified, supplemented or restated (the "Deed of Trust"), covering certain real property located in Los
Altos, California, as more particularly described in the Deed of Trust (the "Property"). Borrower hereby represents and warrants that, as of the date hereof, (a) A. Dillon
and                        
are or will be the sole and lawful fee owners of the Property, and (b) the fair market value of the Property exceeds the aggregate amount of all indebtedness secured by liens covering the
Property. The Deed of Trust provides, among other things, as follows: 



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, then except as prohibited by law, any indebtedness or obligations secured hereby,
irrespective of the maturity date specified in any note evidencing the same, shall become immediately due and payable. 




        3.     Principal Payment. Principal shall be payable hereunder as follows: 



        (A)  On
February 5, 2007 ("Maturity Date"), Borrower shall pay the Company the entire outstanding principal amount hereof. 



        (B)  Notwithstanding
the foregoing, so long as there is then no uncured default hereunder or under the Deed of Trust and no Maturity Event (as hereinafter defined) has
occurred, one fifth (1/5) of the original principal amount hereof shall be forgiven on each of the following dates and on each such date Borrower shall be released and relieved from the
obligation to repay such amount of reduction to the holder hereof: February 5, 2003, February 5, 2004, February 5, 2005, February 5, 2006 and February 5, 2007. 




        4.     Maturity Event: Upon the occurrence of a Maturity Event, the entire unpaid principal balance then outstanding hereunder,
together with all accrued but unpaid interest thereon, and all other sums due hereunder, shall become immediately due and payable without further demand or notice to Borrower. To the extent permitted
by law, any of the following events shall be a "Maturity Event" under this Note and the Deed of Trust: (a) the insolvency of Borrower, including, but not limited to, a bankruptcy or insolvency
proceeding having been instituted by or against Borrower or a receiver being appointed for the property of Borrower, or if Borrower makes an assignment for the benefit of creditors; (b) the
ninetieth (90th) day after the employment of A. Dillon with the Company shall terminate or cease for any reason (other than the death of A. Dillon), whether voluntarily or involuntarily, and whether
with cause or without cause; (c) the sale, further encumbrance, conveyance, assignment, alienation or any other form of transfer of the Property, or any interest therein, whether voluntary or
involuntary, without the prior written consent of the Company, or (d) one (1) year following the death of A. Dillon. 


1







 

        5.     Use of Proceeds. The Principal amount of this Note shall be used by Borrower solely to purchase the Property as Borrower's
primary residence in the area in which the Company is located and this Note shall be secured by the Deed of Trust, as defined above, given by the Borrower to the Company with respect to the Property.
The Deed of Trust shall be subordinate only to a deed of trust made by Borrower, as trustor, for the benefit of Wells Fargo Bank (or another reputable institutional lender), as beneficiary, securing a
loan not to exceed One Million Dollars ($1,000,000.00). 


        6.     Interest Rate. 



        (A)  So
long as no Maturity Event has occurred, then from the date hereof through the Maturity Date, this Note shall be a non-interest bearing note, and as such,
will be subject to the provisions of Section 7872 of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations thereunder. Borrower represents and warrants that
(a) Borrower expects to itemize deductions on their annual income tax returns for each year during which any amounts remain outstanding under the Loan, (b) Borrower is relocating to
California due to A. Dillon's commencement of employment with the Company, and (c) the Loan proceeds shall be used only for the purchase of their new principal residence located on the
Property. 


        (B)  From
and after the earlier to occur of (a) the Maturity Date or (b) any Maturity Event, until paid in full, Borrower further promises to pay interest on
the outstanding principal amount of the Loan, if any, which interest shall be payable at a fixed rate of ten percent (10%) per annum, or, if lower, the highest rate permitted by applicable law (the
"Interest Rate"). Interest shall be compounded annually and calculated on the basis of a 360-day year for the actual number of days elapsed. 




        7.     Default Interest. If any amount payable hereunder shall not be paid within five (5) days of the due date hereof, at
the option of the Company and in lieu of the interest payable under paragraph 6(B), the unpaid principal balance shall immediately begin to accrue interest at a rate equal to the Interest Rate
plus five percent (5%) or, if lower, the highest rate permitted by applicable law, and the Company shall have all remedies available to it by law as a creditor hereunder. 


        8.     Default and Remedies. In the event (a) Borrower defaults in the payment of Principal or interest when due pursuant
to the terms hereof or in Borrower's performance of any obligation contained in the Deed of Trust, (b) Borrower defaults in Borrower's performance under the Loan Agreement, (c) any
representation or warranty of Borrower contained in the Loan Agreement or any other agreement or instrument executed in connection with the Loan described therein proves to have been false or
misleading in any material respect, or (d) Borrower defaults in Borrower's obligation to pay any indebtedness evidenced by any promissory note executed by Borrower and payable to the Company or
there occurs any other default under any deed of trust, mortgage, lien or other encumbrance respecting any other document securing repayment of such indebtedness with respect to the Property, then
unless otherwise prohibited by law, the Company shall have the option, without demand or notice, to declare the entire Principal balance of this Note, together with any amounts due thereon, to be
immediately due and payable, and Company shall have all remedies available to it under the Deed of Trust or at law or in equity. 


        9.     Miscellaneous. 



        (A)  If
an action is instituted for collection of this Note, Borrower agrees to pay court costs and reasonable attorneys' fees incurred by the holder hereof. 


        (B)  This
Note may be amended or modified, and provisions hereof may be waived, only by the written agreement of Borrower and the Company. No delay or failure by the company
in exercising any right, power or remedy hereunder shall operate as a waiver of such right, power or remedy, and a waiver of any right, power or remedy on any one occasion shall not operate as a bar
or waiver of any such right, power or remedy on any other occasion. Without limiting the 



2







 




generality
of the foregoing, the delay or failure by the Company for any period of time to enforce collection of any amount due hereunder shall not be deemed to be a waiver of any rights of the
Company under contract or under law. The rights of the Company under this Note are in addition to any other rights and remedies which the Company may have. 


        (C)  Payment
on this Note shall be applied first to accrued interest, and thereafter to the outstanding principal balance hereof. The Principal may be prepaid without
penalty, in whole or in part, at any time. All amounts payable hereunder shall be payable in lawful money of the United States of America to the Company at 395 Page Mill Road, Palo Alto, CA 94306,
Attention: Treasurer, or at such other
address as the Company may designate. Any amount payable hereunder will be due and payable without set-off, deduction or counterclaim. 


        (D)  Borrower
understands and agrees that any and all income tax liability to Borrower resulting from the terms of this Note shall be the sole responsibility of Borrower.
Without in any way limiting the possible application of other provisions of the Internal Revenue Code of 1986, as amended (the "Code"), and the rules and regulations promulgated by the Internal
Revenue Service ("IRS") thereunder, Borrower further acknowledges that (a) the Company may, in its sole discretion, determine that it is required under the Code, and the rules and regulations
promulgated by the IRS thereunder, to impute interest on the Principal of this Note at the rate set by the IRS, (b) the amount of any such imputed interest would be deemed to be compensation
income to A. Dillon that would be subject to applicable tax withholding, and (c) if so determined by the Company, the Company would report and withhold the required amount out of the current
compensation paid to A. Dillon in accordance with the Code and the rules and regulations promulgated thereunder. 


        (E)  This
Note shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the laws of the state of California. The terms of this
note shall inure to the benefit of and bind Borrower and the Company and their respective heirs, legal representatives and successors and assigns. Time is of the essence with respect to all matters
set forth in this Note. 


        (F)  Borrower
waives diligence, presentment, protest and demand and also notice of protest, demand, dishonor, acceleration, intent to accelerate, and nonpayment of this Note,
and shall pay all costs of collection when incurred, including, without limitation, reasonable attorney's fees, costs and other expenses. The right to plead any and all statutes of limitations as a
defense to any demands hereunder is hereby waived to the full extent permitted by law. 



        (G)  If
this Note is destroyed, lost or stolen, Borrower will deliver a new note to Company on the same terms and conditions as this Note with a notation of the unpaid
principal in substitution of the prior Note. Company shall furnish to Borrower reasonable evidence that the Note was destroyed, lost or stolen and any security or indemnity that may be reasonably
required by Borrower in connection with the replacement of this Note. 


        (H)  If
any provision of this Note shall be held to be invalid or unenforceable, such determination shall not affect the remaining provisions of this Note. 



        (I)   If
this Note is now, or hereinafter shall be, signed by more than one party or person it shall be the joint and several obligation of such parties or persons, and shall
be binding upon such parties and upon their respective successors and assigns. 



3







 





        IN
WITNESS WHEREOF, Borrower has executed this Secured Promissory Note as of the date and year first above written. 



	 	 	Borrower:
	

 	
 	

/s/ Adrian Dillon

	 	 	Adrian Dillon
	

 	
 	






4







 
EXHIBIT B

DEED OF TRUST  


5











 


CHICAGO TITLE CO.


PA - 876376 - KLK


 


	
  Recording Requested By:

  

  WELLS
  FARGO HOME MORTGAGE, INC.

  P.O. BOX 1629

  MINNEAPOLIS, MN 55440-1629

  	
   

  	
  Chicago Title Insurance
  Company hereby certifies that the within instrument is a true and correct
  copy of the original instrument recorded in the office of he Recorder of the
  County of Santa Clara, State of California on 2-5-02

  
	
  Recorder’s
  Serial No. 1609 3008

  
	
  Return To:

  	
   

  	
   

  
	
  WELLS FARGO HOME MORTGAGE, INC.

  	
   

  	
   

  
	
  FINAL
  DOCUMENTS X4701-024

  	
   

  	
   

  
	
  3601 MINNESOTA DRIVE

  	
   

  	
   

  
	
  BLOOMINGTON, MN 55435-5284

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Prepared By:

  	
   

  	
   

  
	
  DEBBIE A. LARSON

  	
   

  	
   

  
	
  WELLS
  FARGO HOME MORTGAGE, INC.

  	
   

  	
   

  
	
  P.O. BOX 1629

  	
   

  	
   

  
	
  MINNEAPOLIS, MN 55440-1629

  	
   

  	
   

  



 


 


[Space Above This Line
for Recording Data]




	
   

  	
   

  	
  DEED OF TRUST

  	
   

  	
  9968342REL

  






 


 


DEFINITIONS


 


Words used in multiple sections
of this document are defined below and other words are defined in Sections 3,
11, 13, 18, 20 and 21. Certain rules regarding the usage of words used in this
document are also provided in Section 16.


 


(A) “Security
Instrument” means this
document, which is dated FEBRUARY 1, 2002
together with all Riders to this document.


(B) “Borrower”
is


ADRIAN
DILLON AND


HUSBAND
AND WIFE


 


 


Borrower is the trustor under
this Security Instrument.


(C) “Lender”
is WELLS FARGO
HOME MORTGAGE, INC.


 


Lender is a Corporation


organized and existing under
the laws of THE STATE OF CALIFORNIA


 


	
  CALIFORNIA
  - Single Family - Fannie Mae/Freddie Mac UNIFORM INSTRUMENT

  	
  FORM 3005

  	
  1/01

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  SCA01

  	
  Rev

  	
  11/09/00

  
						



 


6

















 


Lender’s address is


P. O. BOX 5137, DES MOINES, IA 50306-5137


Lender is the beneficiary under this Security
Instrument.


 


(D) “Trustee” is FIDELITY NATIONAL TITLE INSURANCE
COMPANY


 


(E) “Note”
means the promissory note signed by Borrower and dated FEBRUARY 1,
2002  


The Note states that Borrower owes Lender EIGHT HUNDRED TWENTY-FIVE THOUSAND AND NO/100 Dollars


(U.S. $ 825,000.00)
plus interest. Borrower has promised to pay this debt in regular


Periodic Payments and to pay the debt in full not
later than MARCH 1, 2032


 


(F) “Property”
means the property that is described below under the heading “Transfer of Rights
in the Property.”


 


(G) “Loan”
means the debt evidenced by the Note, plus interest, any prepayment charges and
late charges due under the Note, and all sums due under this Security
Instrument, plus interest.


 


(H) “Riders”
means all Riders to this Security Instrument that are executed by Borrower. The
following Riders are to be executed by Borrower [check box as applicable]:


 


	
  ý
  Adjustable Rate Rider

  	
  o
  Condominium Rider

  	
  o
  Second Home Rider

  
	
  o
  Balloon Rider

  	
  o
  Planned Unit Development Rider

  	
  o
  1-4 Family Rider

  
	
  o
  VA Rider

  	
  o
  Biweekly Payment Rider

  	
  o
  Other(s) [specify]

  



 


(I) “Applicable Law”
means all controlling applicable federal, state and local statutes,
regulations, ordinances and administrative rules and orders (that have the
effect of law) as well as all applicable final, non-appealable judicial
opinions.


 


(J) “Community Association Dues, Fees,
and Assessments” means all dues, fees, assessments and other
charges that are imposed on Borrower or the Property by a condominium
association, homeowners association or similar organization.


 


(K) “Electronic Funds Transfer”
means any transfer of funds, other than a transaction originated by check, draft,
or similar paper instrument, which is initiated through an electronic terminal,
telephonic instrument, computer, or magnetic tape so as to order, instruct, or
authorize a financial institution to debit or credit an account. Such term
includes, but is not limited to, point-of-sale transfers, automated teller
machine transactions, transfers initiated by telephone, wire transfers, and
automated clearinghouse transfers.


 


(L) “Escrow Items”
means those items that are described in Section 3.


 


(M) “Miscellaneous Proceeds”
means any compensation, settlement, award of damages, or proceeds paid by any
third party (other than insurance proceeds paid under the coverages described
in Section 5) for: (i) damage to, or destruction of, the Property; (ii)
condemnation or other taking of all or any part of the Property; (iii)
conveyance in lieu of condemnation; or (iv) misrepresentations of, or omissions
as to, the value and/or condition of the Property.


 


(N) “Mortgage Insurance”
means insurance protecting Lender against the nonpayment of, or default on, the
Loan.


 


(O) “Periodic Payment”
means the regularly scheduled amount due for (i) principal and interest under
the Note, plus (ii) any amounts under Section 3 of this Security Instrument.


 


(P) “RESPA”
means the Real Estate Settlement Procedures Act (12 U.S.C. Section 2601 et
seq.) and its implementing regulation, Regulation X (24 C.F.R. Part 3500), as
they might be amended from time to time, or any additional or successor
legislation or regulation that


 


	
  SCA02

  	
  Rev 12/18/00

  	
   

  	
   

  	
   

  	
  FORM 3005

  	
  1/01

  



 


7

















 


governs the same subject matter. As used in this
Security Instrument, “RESPA” refers to all requirements and restrictions that
are imposed in regard to a “federally related mortgage loan” even if the Loan
does not qualify as a “federally related mortgage loan” under RESPA.


 


(Q) “Successor in Interest of
Borrower” means any party that has taken title to the
Property, whether or not that party has assumed Borrower’s obligations under
the Note and/or this Security Instrument.


 


TRANSFER
OF RIGHTS IN THE PROPERTY


 


This Security Instrument secures to Lender: (i) the
repayment of the Loan, and all renewals, extensions and modifications of the
Note; and (ii) the performance of Borrower’s convenants and agreements under
this Security Instrument and the Note. For this purpose, Borrower irrevocably
grants and conveys to Trustee, in trust, with power of sale, the following
described property located in the


 




	
  County

  	
   

  	
  of

  	
   

  	
  SANTA CLARA

  	
  :

  
	
  [Type of Recording Jurisdiction]

  	
   

  	
   

  	
   

  	
  [Name of Recording Jurisdiction]

  	
   

  






 


LEGAL DESCRIPTION IS ATTACHED HERETO AS SCHEDULE “A” AND MADE
A PART HEREOF.


 


 


THIS IS A PURCHASE MONEY MORTGAGE.


 


	
  Parcel
  ID Number:

  	
   

  	
  which currently has the
  address of

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  [Street]

  
	
   

  	
   

  	
  [City], California

  	
   

  	
   

  	
   

  	
  [Zip Code]

  
	
  (“Property
  Address”):

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


TOGETHER WITH all the
improvements now or hereafter erected on the property, and all easements,
appurtenances, and fixtures now or hereafter a part of the property. All
replacements and additions shall also be covered by this Security Instrument.
All of the foregoing is referred to in this Security Instrument as the “Property.”


 


BORROWER COVENANTS that
Borrower is lawfully seised of the estate hereby conveyed and has the right to
grant and convey the Property and that the Property is unencumbered, except for
encumbrances of record. Borrower warrants and will defend generally the title to
the Property against all claims and demands, subject to any encumbrances of
record.


 


THIS SECURITY INSTRUMENT
combines uniform covenants for national use and non-uniform covenants with
limited variations by jurisdiction to constitute a uniform security instrument
covering real property.


 


	
  SCA03

  	
  Rev 11/09/00

  	
   

  	
   

  	
   

  	
  FORM 3005

  	
  1/01

  



 


8

















 


UNIFORM
COVENANTS. Borrower and Lender covenant and agree as follows:


 


1.     Payment of Principal,
Interest, Escrow Items, Prepayment Charges, and Late Charges. Borrower shall pay when due the principal of,
and interest on, the debt evidenced by the Note and any prepayment charges and
late charges due under the Note. Borrower shall also pay funds for Escrow Items
pursuant to Section 3. Payments due under the Note and this Security Instrument
shall be made in U.S. currency. However, if any check or other instrument
received by Lender as payment under the Note or this Security Instrument is returned
to Lender unpaid, Lender may require that any or all subsequent payments due under
the Note and this Security Instrument be made in one or more of the following
forms, as selected by Lender: (a) cash; (b) money order; (c) certified check,
bank check, treasurer’s check or cashier’s check, provided any such check is
drawn upon an institution whose deposits are insured by a federal agency, instrumentality,
or entity; or (d) Electronic Funds Transfer.


 


Payments
are deemed received by Lender when received at the location designated in the
Note or at such other location as may be designated by Lender in accordance
with the notice provisions in Section 15. Lender may return any payment or
partial payment if the payment or partial payments are insufficient to bring
the Loan current. Lender may accept any payment or partial payment insufficient
to bring the Loan current, without waiver of any rights hereunder or prejudice
to its rights to refuse such payment or partial payments in the future, but
Lender is not obligated to apply such payments at the time such payments are
accepted. If each Periodic Payment is applied as of its scheduled due date,
then Lender need not pay interest on unapplied funds. Lender may hold such
unapplied funds until Borrower makes payment to bring the Loan current. If
Borrower does not do so within a reasonable period of time, Lender shall either
apply such funds or return them to Borrower. If not applied earlier, such funds
will be applied to the outstanding principal balance under the Note immediately
prior to foreclosure. No offset or claim which Borrower might have now or in
the future against Lender shall relieve Borrower from making payments due under
the Note and this Security Instrument or performing the covenants and
agreements secured by this Security Instrument.


 


2.     Application of Payments or
Proceeds. Except as
otherwise described in this Section 2, all payments accepted and applied by
Lender shall be applied in the following order of priority: (a) interest due
under the Note; (b) principal due under the Note; (c) amounts due under Section
3. Such payments shall be applied to each Periodic Payment in the order in which
it became due. Any remaining amounts shall be applied first to late charges,
second to any other amounts due under this Security Instrument, and then to
reduce the principal balance of the Note.


 


If
Lender receives a payment from Borrower for a delinquent Periodic Payment which
includes a sufficient amount to pay any late charge due, the payment may be
applied to the delinquent payment and the late charge. If more than one
Periodic Payment is outstanding, Lender may apply any payment received from
Borrower to the repayment of the Periodic Payments if, and to the extent that,
each payment can be paid in full. To the extent that any excess exists after
the payment is applied to the full payment of one or more Periodic Payments,
such excess may be applied to any late charges due. Voluntary prepayments shall
be applied first to any prepayment charges and then as described in the Note.


 


	
  SCA04

  	
  Rev 11/09/00

  	
   

  	
   

  	
   

  	
  FORM 3005

  	
  1/01

  



 


9

















 


Any application of
payments, insurance proceeds, or Miscellaneous Proceeds to principal due under
the Note shall not extend or postpone the due date, or change the amount, of
the Periodic Payments.


 


3.     Funds for Escrow Items.
Borrower shall pay to Lender on the day Periodic Payments are due under the
Note, until the Note is paid in full, a sum (the “Funds”) to provide for
payment of amounts due for: (a) taxes and assessments and other items which can
attain priority over this Security Instrument as a lien or encumbrance on the
Property; (b) leasehold payments or ground rents on the Property, if any; (c) premiums
for any and all insurance required by Lender under Section 5; and (d) Mortgage
Insurance premiums, if any, or any sums payable by Borrower to Lender in lieu
of the payment of Mortgage Insurance premiums in accordance with the provisions
of Section 10. These items are called “Escrow Items.” At origination or at any
time during the term of the Loan, Lender may require that Community Association
Dues, Fees, and Assessments, if any, be escrowed by Borrower, and such dues,
fees and assessments shall be an Escrow Item. Borrower shall promptly furnish
to Lender all notices of amounts to be paid under this Section. Borrower shall
pay Lender the Funds for Escrow Items unless Lender waives Borrower’s
obligation to pay the Funds for any or all Escrow Items. Lender may waive
Borrower’s obligation to pay to Lender Funds for any or all Escrow Items at any
time. Any such waiver may only be in writing. In the event of such waiver,
Borrower shall pay directly, when and where payable, the amounts due for any
Escrow Items for which payment of Funds has been waived by Lender and, if
Lender requires, shall furnish to Lender receipts evidencing such payment
within such time period as Lender may require. Borrower’s obligation to make
such payments and to provide receipts shall for all purposes be deemed to be a
covenant and agreement contained in this Security Instrument, as the phrase “covenant
and agreement” is used in Section 9. If Borrower is obligated to pay Escrow
Items directly, pursuant to a waiver, and Borrower fails to pay the amount due
for an Escrow Item, Lender may exercise its rights under Section 9 and pay such
amount and Borrower shall then be obligated under Section 9 to repay to Lender
any such amount. Lender may revoke the waiver as to any or all Escrow Items at
any time by a notice given in accordance with Section 15 and, upon such
revocation, Borrower shall pay to Lender all Funds, and in such amounts, that
are then required under this Section 3.


 


Lender may, at any time,
collect and hold Funds in an amount (a) sufficient to permit Lender to apply
the Funds at the time specified under RESPA, and (b) not to exceed the maximum
amount a lender can require under RESPA. Lender shall estimate the amount of
Funds due on the basis of current data and reasonable estimates of expenditures
of future Escrow Items or otherwise in accordance with Applicable Law.


 


The Funds shall be held in an institution whose
deposits are insured by a federal agency, instrumentality, or entity (including
Lender, if Lender is an institution whose deposits are so insured) or in any
Federal Home Loan Bank. Lender shall apply the Funds to pay the Escrow Items no
later than the time specified under RESPA. Lender shall not charge Borrower for
holding and applying the Funds, annually analyzing the escrow account, or
verifying the Escrow Items, unless Lender pays Borrower interest on the Funds
and Applicable Law permits Lender to make such a charge. Unless an agreement is made in writing or Applicable
Law requires interest to be paid on the Funds, Lender shall not be


 


	
  SCA05

  	
  Rev 11/09/00

  	
   

  	
   

  	
   

  	
  FORM 3005

  	
  1/01

  



 


10

















 


required to pay Borrower any interest or earnings on
the Funds. Borrower and Lender can agree in writing, however, that interest
shall be paid on the Funds. Lender shall give to Borrower, without charge, an
annual accounting of the Funds as required by RESPA.


 


If there is a surplus of
Funds held in escrow, as defined under RESPA, Lender shall account to Borrower
for the excess funds in accordance with RESPA. If there is a shortage of Funds
held in escrow, as defined under RESPA, Lender shall notify Borrower as
required by RESPA, and Borrower shall pay to Lender the amount necessary to
make up the shortage in accordance with RESPA, but in no more than 12 monthly
payments. If there is a deficiency of Funds held in escrow, as defined under
RESPA, Lender shall notify Borrower as required by RESPA, and Borrower shall
pay to Lender the amount necessary to make up the deficiency in accordance with
RESPA, but in no more than 12 monthly payments.


 


Upon payment in full of
all sums secured by this Security Instrument, Lender shall promptly refund to
Borrower any Funds held by Lender.


 


4.     Charges; Liens. Borrower
shall pay all taxes, assessments, charges, fines, and impositions attributable to
the Property which can attain priority over this Security Instrument, leasehold
payments or ground rents on the Property, if any, and Community Association
Dues, Fees, and Assessments, if any. To the extent that these items are Escrow
Items, Borrower shall pay them in the manner provided in Section 3.


 


Borrower shall promptly
discharge any lien which has priority over this Security Instrument unless
Borrower: (a) agrees in writing to the payment of the obligation secured by the
lien in a manner acceptable to
Lender, but only so long as Borrower is performing such agreement; (b) contests
the lien in good faith by, or defends against enforcement of the lien in, legal
proceedings which in Lender’s opinion operate to prevent the enforcement of the
lien while those proceedings are pending, but only until such proceedings are
concluded; or (c) secures from the holder of the lien an agreement satisfactory
to Lender subordinating the lien to this Security Instrument. If Lender determines
that any part of the Property is subject to a lien which can attain priority
over this Security Instrument, Lender may give Borrower a notice identifying
the lien. Within 10 days of the date on which that notice is given, Borrower
shall satisfy the lien or take one or more of the actions set forth above in
this Section 4.


 


Lender may require
Borrower to pay a one-time charge for a real estate tax verification and/or
reporting service used by Lender in connection with this Loan.


 


5.     Property Insurance. Borrower
shall keep the improvements now existing or hereafter erected on the Property
insured against loss by fire, hazards included within the term “extended
coverage,” and any other hazards including, but not limited to, earthquakes and
floods, for which Lender requires insurance. This insurance shall be maintained
in the amounts (including deductible levels) and for the periods that Lender
requires. What Lender requires pursuant to the preceding sentences can change
during the term of the Loan. The insurance carrier providing the insurance
shall be chosen by Borrower subject to Lender’s right to disapprove Borrower’s
choice, which right shall not be exercised unreasonably. Lender may require
Borrower to pay, in connection with this Loan, either: (a) a one-time charge
for flood zone determination, certification and tracking services; or (b) a
one-time charge for flood zone determination and certification services and
subsequent charges each time remappings or similar changes occur which
reasonably might affect such determination


 


	
  SCA06

  	
  Rev 09/22/00

  	
   

  	
   

  	
   

  	
  FORM 3005

  	
  1/01

  



 


11

















 


or certification. Borrower
shall also be responsible for the payment of any fees imposed by the Federal
Emergency Management Agency in connection with the review of any flood zone
determination resulting from an objection by Borrower.


 


If
Borrower fails to maintain any of the coverages described above, Lender may
obtain insurance coverage, at Lender’s option and Borrower’s expense. Lender is
under no obligation to purchase any particular type or amount of coverage.
Therefore, such coverage shall cover Lender, but might or might not protect
Borrower, Borrower’s equity in the Property, or the contents of the Property,
against any risk, hazard or liability and might provide greater or lesser
coverage than was previously in effect. Borrower acknowledges that the cost of
the insurance coverage so obtained might significantly exceed the cost of
insurance that Borrower could have obtained. Any amounts disbursed by Lender
under this Section 5 shall become additional debt of Borrower secured by this
Security Instrument. These amounts shall bear interest at the Note rate from
the date of disbursement and shall be payable, with such interest, upon notice
from Lender to Borrower requesting payment.


 


All
insurance policies required by Lender and renewals of such policies shall be
subject to Lender’s right to disapprove such policies, shall include a standard
mortgage clause, and shall name Lender as mortgagee and/or as an additional
loss payee and Borrower further agrees to generally assign rights to insurance
proceeds to the holder of the Note up to the amount of the outstanding loan
balance. Lender shall have the right to hold the policies and renewal certificates.
If Lender requires, Borrower shall promptly give to Lender all receipts of paid
premiums and renewal notices. If Borrower obtains any form of insurance
coverage, not otherwise required by Lender, for damage to, or destruction of,
the Property, such policy shall include a standard mortgage clause and shall
name Lender as mortgagee and/or as an additional loss payee.


 


In the event of loss, Borrower shall give prompt notice to the insurance
carrier and Lender. Lender may make proof of loss if not made promptly by
Borrower. Unless Lender and Borrower otherwise agree in writing, any insurance
proceeds, whether or not the underlying insurance was required by Lender, shall
be applied to restoration or repair of the Property, if the restoration or
repair is economically feasible and Lender’s security is not lessened. During
such repair and restoration period, Lender shall have the right to hold such insurance
proceeds until Lender has had an opportunity to inspect such Property to ensure
the work has been completed to Lender’s satisfaction, provided that such
inspection shall be undertaken promptly. Lender may disburse proceeds for the
repairs and restoration in a single payment or in a series of progress payments
as the work is completed. Unless an agreement is made in writing or Applicable
Law requires interest to be paid on such insurance proceeds, Lender shall not
be required to pay Borrower any interest or earnings on such proceeds. Fees for
public adjusters, or other third parties, retained by Borrower shall not be
paid out of the insurance proceeds and shall be the sole obligation of
Borrower. If the restoration or repair is not economically feasible or Lender’s
security would be lessened, the insurance proceeds shall be applied to the sums
secured by this Security Instrument, whether or not then due, with the excess,
if any, paid to Borrower. Such insurance proceeds shall be applied in the order
provided for in Section 2.


 


If
Borrower abandons the Property, Lender may file, negotiate and settle any
available insurance claim and related matters. If Borrower does not respond
within 30 days to a notice from Lender that the insurance carrier has offered
to settle a claim, then Lender may negotiate and settle the claim. The 30-day
period will begin when the notice is given. In


 


	
  SCA07

  	
  Rev 11/09/00

  	
   

  	
   

  	
   

  	
  FORM 3005

  	
  1/01

  



 


12

















 


either event, or if Lender
acquires the Property under Section 22
or otherwise, Borrower hereby assigns to Lender (a) Borrower’s rights to
any insurance proceeds in an amount not to exceed the amounts unpaid under the
Note or this Security Instrument, and (b) any other of Borrower’s rights (other
than the right to any refund of unearned premiums paid by Borrower) under all
insurance policies covering the Property, insofar as such rights are applicable
to the coverage of the Property. Lender may use the insurance proceeds either
to repair or restore the Property or to pay amounts unpaid under the Note or
this Security Instrument, whether or not then due.


 


6.     Occupancy. Borrower shall occupy, establish, and use the
Property as Borrower’s principal residence within 60 days after the execution
of this Security Instrument and shall continue to occupy the Property as
Borrower’s principal residence for at least one year after the date of
occupancy, unless Lender otherwise agrees in writing, which consent shall not be
unreasonably withheld, or unless extenuating circumstances exist which are
beyond Borrower’s control.


 


7.     Preservation, Maintenance
and Protection of the Property; Inspections. Borrower shall not destroy, damage or impair
the Property, allow the Property to deteriorate or commit waste on the Property.
Whether or not Borrower is residing in the Property, Borrower shall maintain
the Property in order to prevent the Property from deteriorating or decreasing
in value due to its condition. Unless it is determined pursuant to Section 5
that repair or restoration is not economically feasible, Borrower shall promptly
repair the Property if damaged to avoid further deterioration or damage. If insurance
or condemnation proceeds are paid in connection with damage to, or the taking
of, the Property, Borrower shall be responsible for repairing or restoring the
Property only if Lender has released proceeds for such purposes. Lender may
disburse proceeds for the repairs and restoration in a single payment or in a
series of progress payments as the work is completed. If the insurance or
condemnation proceeds are not sufficient to repair or restore the Property, Borrower
is not relieved of Borrower’s obligation for the completion of such repair or restoration.


 


Lender
or its agent may make reasonable entries upon and inspections of the Property.
If it has reasonable cause, Lender may inspect the interior of the improvements
on the Property. Lender shall give Borrower notice at the time of or prior to
such an interior inspection specifying such reasonable cause.


 


8.     Borrower’s Loan
Application. Borrower
shall be in default if, during the Loan application process, Borrower or any
persons or entities acting at the direction of Borrower or with Borrower’s
knowledge or consent gave materially false, misleading, or inaccurate information
or statements to Lender (or failed to provide Lender with material information)
in connection with the Loan. Material representations include, but are not limited
to, representations concerning Borrower’s occupancy of the Property as Borrower’s
principal residence.


 


9.     Protection of Lender’s
Interest in the Property and Rights Under this Security Instrument. If (a) Borrower fails to perform the
covenants and agreements contained in this Security Instrument, (b) there is a
legal proceeding that might significantly affect Lender’s interest in the
Property and/or rights under this Security Instrument (such as a proceeding in
bankruptcy, probate, for condemnation or forfeiture, for enforcement of a lien
which may attain priority over this Security Instrument or to enforce laws or
regulations), or


 


	
  SCA08

  	
  Rev 09/22/00

  	
   

  	
   

  	
   

  	
  FORM 3005

  	
  1/01

  



 


13

















 


(c) Borrower has abandoned the Property, then Lender
may do and pay for whatever is reasonable or appropriate to protect Lender’s
interest in the Property and rights under this Security Instrument, including
protecting and/or assessing the value of the Property, and securing and/or
repairing the Property. Lender’s actions can include, but are not limited to:
(a) paying any sums secured by a lien which has priority over this Security
Instrument; (b) appearing in court; and (c) paying reasonable attorneys’ fees
to protect its interest in the Property and/or rights under this Security
Instrument, including its secured position in a bankruptcy proceeding. Securing
the Property includes, but is not limited to, entering the Property to make
repairs, change locks, replace or board up doors and windows, drain water from
pipes, eliminate building or other code violations or dangerous conditions, and
have utilities turned on or off. Although Lender may take action under this
Section 9, Lender does not have to do so and is not under any duty or
obligation to do so. It is agreed that Lender incurs no liability for not
taking any or all actions authorized under this Section 9.


 


Any amounts disbursed by
Lender under this Section 9 shall become additional debt of Borrower secured by
this Security Instrument. These amounts shall bear interest at the Note rate
from the date of disbursement and shall be payable, with such interest, upon
notice from Lender to Borrower requesting payment.


 


If this Security
Instrument is on a leasehold, Borrower shall comply with all the provisions of
the lease. If Borrower acquires fee title to the Property, the leasehold and
the fee title shall not merge unless Lender agrees to the merger in writing.


 


10.   Mortgage Insurance. If
Lender required Mortgage Insurance as a condition of making the Loan, Borrower
shall pay the premiums required to maintain the Mortgage Insurance in effect.
If, for any reason, the Mortgage Insurance coverage required by Lender ceases
to be available from the mortgage insurer that previously provided such
insurance and Borrower was required to make separately designated payments
toward the premiums for Mortgage Insurance. Borrower shall pay the premiums
required to obtain coverage substantially equivalent to the Mortgage Insurance
previously in effect, at a cost substantially equivalent to the cost to
Borrower of the Mortgage Insurance previously in effect, from an alternate
mortgage insurer selected by Lender. If substantially equivalent Mortgage
Insurance coverage is not available, Borrower shall continue to pay to Lender
the amount of the separately designated payments that were due when the
insurance coverage ceased to be in effect. Lender will accept, use and retain
these payments as a non-refundable loss reserve in lieu of Mortgage Insurance.
Such loss reserve shall be non-refundable, notwithstanding the fact that the
Loan is ultimately paid in full, and Lender shall not be required to pay
Borrower any interest or earnings on such loss reserve. Lender can no longer
require loss reserve payments if Mortgage Insurance coverage (in the amount and
for the period that Lender requires) provided by an insurer selected by Lender
again becomes available, is obtained, and Lender requires separately designated
payments toward the premiums for Mortgage Insurance. If Lender required
Mortgage Insurance as a condition of making the Loan and Borrower was required
to make separately designated payments toward the premiums for Mortgage
Insurance, Borrower shall pay the premiums required to maintain Mortgage
Insurance in effect, or to provide a non-refundable loss reserve, until Lender’s
requirement for Mortgage Insurance ends in accordance with any written
agreement between Borrower and Lender providing for such termination or until
termination is required by Applicable Law. Nothing in this Section 10 affects
Borrower’s obligation to pay interest at the rate provided in the Note.


 


	
  SCA09

  	
  Rev 11/13/00

  	
   

  	
   

  	
   

  	
  FORM 3005

  	
  1/01

  



 


14

















 


Mortgage Insurance
reimburses Lender (or any entity that purchases the Note) for certain losses it
may incur if Borrower does not repay the Loan as agreed. Borrower is not a
party to the Mortgage Insurance.


 


Mortgage insurers
evaluate their total risk on all such insurance in force from time to time, and
may enter into agreements with other parties that share or modify their risk,
or reduce losses. These agreements are on terms and conditions that are
satisfactory to the mortgage insurer and the other party (or parties) to these
agreements. These agreements may require the mortgage insurer to make payments
using any source of funds that the mortgage insurer may have available (which
may include funds obtained from Mortgage Insurance premiums).


 


As a result of these
agreements, Lender, any purchaser of the Note, another insurer, any reinsurer,
any other entity, or any affiliate of any of the foregoing, may receive
(directly or indirectly) amounts that derive from (or might be characterized
as) a portion of Borrower’s payments for Mortgage Insurance, in exchange for
sharing or modifying the mortgage insurer’s risk, or reducing losses. If such
agreement provides that an affiliate of Lender takes a share of the insurer’s
risk in exhange for a share of the premiums paid to the insurer, the
arrangement is often termed “captive reinsurance,” Further:


 


(a)   Any such
agreements will not affect the amounts that Borrower has agreed to pay for
Mortgage Insurance, or any other terms of the Loan. Such agreements will not
increase the amount Borrower will owe for Mortgage Insurance, and they will not
entitle Borrower to any refund.


 


(b)   Any such
agreements will not affect the rights Borrower has - if any - with respect to
the Mortgage Insurance under the Homeowners Protection Act of 1998 or any other
law. These rights may include the right to receive certain disclosures, to
request and obtain cancellation of the Mortgage Insurance, to have the Mortgage
Insurance terminated automatically, and/or to receive a refund of any Mortgage
Insurance premiums that were unearned at the time of such cancellation or termination.


 


11.  Assignment of Miscellaneous Proceeds;
Forfeiture. All Miscellaneous Proceeds are hereby assigned to
and shall be paid to Lender.


 


If the Property is damaged,
such Miscellaneous Proceeds shall be applied to restoration or repair of the
Property, if the restoration or repair is economically feasible and Lender’s
security is not lessened. During such repair and restoration period, Lender
shall have the right to hold such Miscellaneous Proceeds until Lender has had
an opportunity to inspect such Property to ensure the work has been completed
to Lender’s satisfaction, provided that such inspection shall be undertaken
promptly. Lender may pay for the repairs and restoration in a single
disbursement or in a series of progress payments as the work is completed.
Unless an agreement is made in writing or Applicable Law requires interest to
be paid on such Miscellaneous Proceeds, Lender shall not be required to pay Borrower
any interest or earnings on such Miscellaneous Proceeds. If the restoration or
repair is not economically feasible or Lender’s security would be lessened, the
Miscellaneous Proceeds shall be applied to the sums secured by this Security
Instrument, whether or not then due, with the excess, if any, paid to Borrower.
Such Miscellaneous Proceeds shall be applied in the order provided for in
Section 2.


 


	
  SCA10

  	
  Rev 09/22/00

  	
   

  	
   

  	
   

  	
  FORM 3005

  	
  1/01

  



 


15

















 


In
the event of a total taking, destruction, or loss in value of the Property, the
Miscellaneous Proceeds shall be applied to the sums secured by this Security
Instrument, whether or not then due, with the excess, if any, paid to Borrower.


 


In
the event of a partial taking, destruction, or loss in value of the Property in
which the fair market value of the Property immediately before the partial
taking, destruction, or loss in value is equal to or greater than the amount of
the sums secured by this Security Instrument immediately before the partial
taking, destruction, or loss in value, unless Borrower and Lender otherwise
agree in writing, the sums secured by this Security Instrument shall be reduced
by the amount of the Miscellaneous Proceeds multiplied by the following
fraction: (a) the total amount of the sums secured immediately before the
partial taking, destruction, or loss in value divided by (b) the fair market
value of the Property immediately before the partial taking, destruction, or
loss in value. Any balance shall be paid to Borrower.


 


In
the event of a partial taking, destruction, or loss in value of the Property in
which the fair market value of the Property immediately before the partial
taking, destruction, or loss in value is less than the amount of the sums
secured immediately before the partial taking, destruction, or loss in value,
unless Borrower and Lender otherwise agree in writing, the Miscellaneous
Proceeds shall be applied to the sums secured by this Security Instrument
whether or not the sums are then due.


 


If
the Property is abandoned by Borrower, or if, after notice by Lender to
Borrower that the Opposing Party (as defined in the next sentence) offers to
make an award to settle a claim for damages, Borrower fails to respond to
Lender within 30 days after the date the notice is given, Lender is authorized
to collect and apply the Miscellaneous Proceeds either to restoration or repair
of the Property or to the sums secured by this Security Instrument, whether or
not then due. “Opposing Party” means the third party that owes Borrower
Miscellaneous Proceeds or the party against whom Borrower has a right of action
in regard to Miscellaneous Proceeds.


 


Borrower
shall be in default if any action or proceeding, whether civil or criminal, is
begun that, in Lender’s Judgment, could result in forfeiture of the Property or
other material impairment of Lender’s interest in the Property or rights under
this Security Instrument. Borrower can cure such a default and, if acceleration
has occurred, reinstate as provided in Section 19, by causing the action or
proceeding to be dismissed with a ruling that, in Lender’s judgment, precludes
forfeiture of the Property or other material impairment of Lender’s interest in
the Property or rights under this Security Instrument. The proceeds of any
award or claim for damages that are attributable to the impairment of Lender’s
interest in the Property are hereby assigned and shall be paid to Lender.


 


All
Miscellaneous Proceeds that are not applied to restoration or repair of the
Property shall be applied in the order provided for in Section 2.


 


12. Borrower Not Released; Forbearance By Lender Not a Waiver. Extension of the time for payment or
modification of amortization of the sums secured by this Security Instrument
granted by Lender to Borrower or any Successor in Interest of Borrower shall
not operate to release the liability of Borrower or any Successors in Interest
of Borrower. Lender shall not be required to commence proceedings against any
Successor in Interest of Borrower or to refuse to extend time for payment or
otherwise modify amortization of the sums secured by


 


	
  SCA11

  	
  Rev 11/09/00

  	
   

  	
   

  	
   

  	
  FORM 3005

  	
  1/01

  



 


16

















 


this Security Instrument by reason of any demand made
by the original Borrower or any Successors in Interest of Borrower. Any
forbearance by Lender in exercising any right or remedy including, without
limitation, Lender’s acceptance of payments from third persons, entities or
Successors in Interest of Borrower or in amounts less than the amount then due,
shall not be a waiver of or preclude the exercise of any right or remedy.


 


13.  Joint and Several Liability; Co-signers;
Successors and Assigns Bound. 
Borrower covenants and agrees that Borrower’s obligations and liability
shall be joint and several. However, any Borrower who co-signs this Security
Instrument but does not execute the Note (a “co-signer”): (a) is co-signing
this Security Instrument only to mortgage, grant and convey the co-signer’s
interest in the Property under the terms of this Security Instrument; (b) is
not personally obligated to pay the sums secured by this Security Instrument;
and (c) agrees that Lender and any other Borrower can agree to extend, modify,
forbear or make any accommodations with regard to the terms of this Security
Instrument or the Note without the co-signer’s consent.


 


Subject to the provision
of Section 18, any Successor in Interest of Borrower who assumes Borrower’s
obligations under this Security Instrument in writing, and is approved by
Lender, shall obtain all of Borrower’s rights and benefits under this Security
Instrument. Borrower shall not be released from Borrower’s obligations and
liability under this Security Instrument unless Lender agrees to such release
in writing. The covenants and agreements of this Security Instrument shall bind
(except as provided in Section 20) and benefit the successors and assigns of
Lender.


 


14.  Loan Charges.  Lender may charge Borrower fees for services
performed in connection with Borrower’s default, for the purpose of protecting
Lender’s interest in the Property and rights under this Security Instrument,
including, but not limited to, attorneys’ fees, property inspection and
valuation fees. In regard to any other fees, the absence of express authority
in this Security Instrument to charge a specific fee to Borrower shall not be
construed as a prohibition on the charging of such fee. Lender may not charge
fees that are expressly prohibited by this Security Instrument or by Applicable
Law.


 


If the Loan is subject to
a law which sets maximum loan charges, and that law is finally interpreted so
that the interest or other loan charges collected or to be collected in
connection with the Loan exceed the permitted limits, then: (a) any such loan
charge shall be reduced by the amount necessary to reduce the charge to the
permitted limit; and (b) any sums already collected from Borrower which
exceeded permitted limits will be refunded to Borrower. Lender may choose to
make this refund by reducing the principal owed under the Note or by making a
direct payment to Borrower. If a refund reduces principal, the reduction will
be treated as a partial prepayment without any prepayment charge (whether or
not a prepayment charge is provided for under the Note). Borrower’s acceptance
of any such refund made by direct payment to Borrower will constitute a waiver
of any right of action Borrower might have arising out of such overcharge.


 


15.  Notices.  All notices given by Borrower or Lender in
connection with this Security Instrument must be in writing. Any notice to
Borrower in connection with this Security Instrument shall be deemed to have
been given to Borrower when mailed by first class mail or when actually
delivered to Borrower’s notice address if sent by other means. Notice to any
one Borrower shall constitute notice to all Borrowers unless Applicable Law
expressly


 


	
  SCA12

  	
  Rev 11/09/00

  	
   

  	
   

  	
   

  	
  FORM 3005

  	
  1/01

  



 


17

















 


requires otherwise. The
notice address shall be the Property Address unless Borrower has designated a
substitute notice address by notice to Lender. Borrower shall promptly notify
Lender of Borrower’s change of address. If Lender specifies a procedure for
reporting Borrower’s change of address, then Borrower shall only report a
change of address through that specified procedure. There may be only one
designated notice address under this Security Instrument at any one time. Any
notice to Lender shall be given by delivering it or by mailing it by first
class mail to Lender’s address stated herein unless Lender has designated
another address by notice to Borrower. Any notice in connection with this
Security Instrument shall not be deemed to have been given to Lender until
actually received by Lender. If any notice required by this Security Instrument
is also required under Applicable Law, the Applicable Law requirement will
satisfy the corresponding requirement under this Security Instrument.


 


16.  Governing Law; Severability;
Rules of Construction.
This Security Instrument shall be governed by federal law and the law of the
jurisdiction in which the Property is located. All rights and obligations
contained in this Security Instrument are subject to any requirements and
limitations of Applicable Law. Applicable Law might explicitly or implicitly
allow the parties to agree by contract or it might be silent, but such silence
shall not be construed as a prohibition against agreement by contract. In the
event that any provision or clause of this Security Instrument or the Note
conflicts with Applicable Law, such conflict shall not affect other provisions
of this Security Instrument or the Note which can be given effect without the
conflicting provision.


 


As
used in this Security Instrument: (a) words of the masculine gender shall mean
and include corresponding neuter words or words of the feminine gender; (b)
words in the singular shall mean and include the plural and vice versa; and (c)
the word “may” gives sole discretion without any obligation to take any action.


 


17.  Borrower’s Copy.  Borrower
shall be given one copy of the Note and of this Security Instrument.


 


18.  Transfer of the Property or a
Beneficial Interest in Borrower.  As used in this Section 18,
“Interest in the Property” means any legal or beneficial interest in the
Property, including, but not limited to, those beneficial interests transferred
in a bond for deed, contract for deed, installment sales contract or escrow
agreement, the intent of which is the transfer of title by Borrower at a future
date to a purchaser.


 


If
all or any part of the Property or any
interest in the Property is sold or transferred (or if Borrower is not a
natural person and a beneficial interest in Borrower is sold or transferred)
without Lender’s prior written consent, Lender may require immediate payment in
full of all sums secured by this Security Instrument. However, this option
shall not be exercised by Lender if such exercise is prohibited by Applicable
Law.


 


If
Lender exercises this option, Lender shall give Borrower notice of acceleration.
The notice shall provide a period of not less than 30 days from the date the
notice is given in accordance with Section 15 within which Borrower must pay
all sums secured by this Security Instrument. If Borrower fails to pay these
sums prior to the expiration of this period, Lender may invoke any remedies
permitted by this Security Instrument without further notice or demand on
Borrower.


 


	
  SCA13

  	
  Rev 11/09/00

  	
   

  	
   

  	
   

  	
  FORM 3005

  	
  1/01

  



 


18

















 


19.  Borrower’s Right to Reinstate After Acceleration.  If
Borrower meets certain conditions. Borrower shall have the right to have
enforcement of this Security Instrument discontinued at any time prior to the
earliest of: (a) five days before sale of the Property pursuant to any power of
sale contained in this Security Instrument; (b) such other period as Applicable
Law might specify for the termination of Borrower’s right to reinstate; or (c)
entry of a judgment enforcing this Security Instrument. Those conditions are
that Borrower: (a) pays Lender all sums which then would be due under this
Security Instrument and the Note as if no acceleration had occurred; (b) cures
any default of any other covenants or agreements; (c) pays all expenses incurred
in enforcing this Security Instrument, including, but not limited to,
reasonable attorneys’ fees, property inspection and valuation fees, and other
fees incurred for the purpose of protecting Lender’s Interest in the Property
and rights under this Security Instrument; and (d) takes such action as Lender
may reasonably require to assure that Lender’s Interest in the Property and
rights under this Security Instrument, and Borrower’s obligation to pay the
sums secured by this Security Instrument, shall continue unchanged. Lender may
require that Borrower pay such reinstatement sums and expenses in one or more
of the following forms, as selected
by Lender: (a) cash; (b) money order; (c) certified check, bank check,
treasurer’s check or cashier’s check, provided any such check is drawn upon an
institution whose deposits are insured by a federal agency, instrumentality or
entity; or (d) Electronic Funds Transfer. Upon reinstatement by Borrower, this
Security Instrument and obligations secured hereby shall remain fully effective
as if no acceleration had occurred. However, this right to reinstate shall not
apply in the case of acceleration under Section 18.


 


20.  Sale of Note; Change of Loan
Servicer; Notice of Grievance.  The Note or a partial interest
in the Note (together with this Security Instrument) can be sold one or more
times without prior notice to Borrower. A sale might result in a change in the
entity (known as the “Loan Servicer”) that collects Periodic Payments due under
the Note and this Security Instrument and performs other mortgage loan
servicing obligations under the Note, this Security Instrument, and Applicable
Law. There also might be one or more changes of the Loan Servicer unrelated to
a sale of the Note. If there is a change of the Loan Servicer, Borrower will be
given written notice of the change which will state the name and address of the
new Loan Servicer, the address to which payments should be made and any other
information RESPA requires in connection with a notice of transfer or
servicing. If the Note is sold and thereafter the Loan is serviced by a Loan
Servicer other than the purchaser of the Note, the mortgage loan servicing
obligations to Borrower will remain with the Loan Servicer or be transferred to
a successor Loan Servicer and are not assumed by the Note purchaser unless
otherwise provided by the Note purchaser.


 


Neither
Borrower nor Lender may commence, join, or be joined to any judicial action (as
either an individual litigant or the member of a class) that arises from the
other party’s actions pursuant to this Security Instrument or that alleges that
the other party has breached any provision of, or any duty owed by reason of,
this Security Instrument, until such Borrower or Lender has notified the other
party (with such notice given in compliance with the requirements of Section
15) of such alleged breach and afforded the other party hereto a reasonable
period after the giving of such notice to take corrective action. If Applicable
Law provides a time period which must elapse before certain action can be taken,
that time period will be deemed to be reasonable for purposes of this
paragraph.


 


	
  SCA14

  	
  Rev 12/27/00

  	
   

  	
   

  	
   

  	
  FORM 3005

  	
  1/01

  



 


19

















 


The notice of acceleration
and opportunity to cure given to Borrower pursuant to Section 22 and the notice
of acceleration given to Borrower pursuant to Section 18 shall be deemed to
satisfy the notice and opportunity to take corrective action provisions of this
Section 20.


 


21.  Hazardous Substances.  As
used in this Section 21: (a) “Hazardous Substances” are those substances
defined as toxic or hazardous substances, pollutants, or wastes by
Environmental Law and the fallowing substances: gasoline, kerosene, other
flammable or toxic petroleum products, toxic pesticides and herbicides,
volatile solvents, materials containing asbestos or formaldehyde, and
radioactive materials; (b) “Environmental Law” means federal laws and laws of
the jurisdiction where the Property is located that relate to health, safely or
environmental protection; (c) “Environmental Cleanup” includes any response
action, remedial action, or removal action, as defined in Environmental Law;
and (d) an “Environmental Condition” means a condition that can cause,
contribute to, or otherwise trigger an Environment Cleanup.


 


Borrower
shall not cause or permit the presence, use, disposal, storage, or release of
any Hazardous Substances, or threaten to release any Hazardous Substances, on
or in the Property. Borrower shall not do, nor allow anyone else to do,
anything affecting the Property (a) that is in violation of any Environmental
Law, (b) which creates an Environmental Condition, or (c) which, due to the
presence, use, or release of a Hazardous Substance, creates a condition that
adversely affects the value of the Property. The preceding two sentences shall
not apply to the presence, use, or storage on the Property of small quantities
of Hazardous Substances that are generally recognized to be appropriate to
normal residential uses and to maintenance of the Property (including, but not
limited to, hazardous substances in consumer products).


 


Borrower
shall promptly give Lender written notice of (a) any investigation, claim,
demand, lawsuit or other action by any governmental or regulatory agency or
private party involving the Property and any Hazardous Substance or
Environmental Law of which Borrower has actual knowledge, (b) any Environmental
Condition, including but not limited to, any spilling, leaking, discharge,
release or threat of release of any Hazardous Substance, and (c) any condition
caused by the presence, use or release of a Hazardous Substance which adversely
affects the value of the Property. If Borrower learns, or is notified by any
governmental or regulatory authority, or any private party, that any removal or
other remediation of any Hazardous Substance affecting the Property is
necessary. Borrower shall promptly take all necessary remedial actions in
accordance with Environmental Law. Nothing herein shall create any obligation
on Lender for an Environmental Cleanup.


 


NON-UNIFORM
COVENANTS. Borrower and Lender further covenant and agree as follows:


 


22.  Acceleration;
Remedies. Lender shall give notice to Borrower prior to acceleration following
Borrower’s breach of any covenant or agreement in this Security Instrument (but
not prior to acceleration under Section 18 unless Applicable Law provides
otherwise). The notice shall specify: (a) the default; (b) the action required
to cure the default; (c) a date, not less than 30 days from the date the notice
is given to Borrower, by which the default must be cured; and (d) that failure
to cure the default on or before the date specified in the notice may result in
acceleration of the sums secured by this Security Instrument and sale of the
Property. The notice shall further inform Borrower of the right to reinstate
after acceleration and the right to bring a court action to assert the
non-existence of a default or any other defense of Borrower to acceleration and
sale. If the default is not cured on or


 


	
  SCA15

  	
  Rev 10/13/00

  	
   

  	
   

  	
   

  	
  FORM 3005

  	
  1/01

  



 


20

















 


before the date specified in the notice, Lender at its option
may require immediate payment in full of all sums secured by this Security
Instrument without further demand and may invoke the power of sale and any
other remedies permitted by Applicable Law. Lender shall be entitled to collect
all expenses incurred in pursuing the remedies provided in this Section 22,
including, but not limited to, reasonable attorneys’ fees and costs of title
evidence.


 


If Lender invokes the power of sale, Lender shall execute or
cause Trustee to execute a written notice of the occurrence of an event of
default and of Lender’s election to cause the Property to be sold. Trustee
shall cause this notice to be recorded in each county in which any part of the
Property is located. Lender or Trustee shall mail copies of the notice as
prescribed by Applicable Law to Borrower and to the other persons prescribed by
Applicable Law. Trustee shall give public notice of sale to the persons and in
the manner prescribed by Applicable Law. After the time required by Applicable
Law, Trustee, without demand on Borrower, shall sell the Property at public
auction to the highest bidder at the time and place and under the terms
designated in the notice of sale in one or more parcels and in any order
Trustee determines. Trustee may postpone sale of all or any parcel of the
Property by public announcement at the time and place of any previously
scheduled sale. Lender or its designee may purchase the Property at any sale.


 


Trustee shall deliver to the purchaser Trustee’s deed
conveying the Property without any covenant or warranty, expressed or implied.
The recitals in the Trustee’s deed shall be prima facie evidence of the truth
of the statements made therein. Trustee shall apply the proceeds of the sale in
the following order: (a) to all expenses of the sale, including, but not
limited to, reasonable Trustee’s and attorneys’ fees; (b) to all sums secured
by this Security Instrument; and (c) any excess to the person or persons
legally entitled to it.


 


23.  Reconveyance.  Upon
payment of all sums secured by this Security Instrument, Lender shall request
Trustee to reconvey the Property and shall surrender this Security Instrument
and all notes evidencing debt secured by this Security Instrument to Trustee.
Trustee shall reconvey the Property without warranty to the person or persons
legally entitled to it. Lender may charge such person or persons a reasonable
fee for reconveying the Property, but only if the fee is paid to a third party
(such as the Trustee) for services rendered and the charging of the fee is
permitted under Applicable Law. If the fee charged does not exceed the fee set
by Applicable Law, the fee is conclusively presumed to be reasonable.


 


24.  Substitute Trustee.  Lender,
at its option, may from time to time appoint a successor trustee to any Trustee
appointed hereunder by an instrument executed and acknowledged by Lender and
recorded in the office of the Recorder of the county in which the Property is
located. The instrument shall contain the name of the original Lender, Trustee
and Borrower, the book and page where this Security Instrument is recorded and
the name and address of the successor trustee. Without conveyance of the
Property, the successor trustee shall succeed to all the title, powers and
duties conferred upon the Trustee herein and by Applicable Law. This procedure
for substitution of trustee shall govern to the exclusion of all other
provisions for substitution.


 


25.  Statement of Obligation Fee.  Lender
may collect a fee not to exceed the maximum amount permitted by Applicable Law
for furnishing the statement of obligation as provided by Section 2943 of the
Civil Code of California.


 


	
  SCA16

  	
  Rev 09/22/00

  	
   

  	
   

  	
   

  	
  FORM 3005

  	
  1/01

  



 


21

















 


BY
SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained
in this Security Instrument and in any Rider executed by Borrower and recorded
with it.


 


	
  Witnesses:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  Adrian Dillon

  	
   

  	
  (Seal)

  
	
   

  	
  ADRIAN
  DILLON

  	
  Borrower

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ by Adrian Dillon

  her attorney in fact

  	
   

  	
  (Seal)

  
	
   

  	
   

  	
  Borrower

  
	
   

  	
  by Adrian Dillon her
  attorney in fact

  	
   

  



 


	
  SCA17

  	
  Rev 12/27/00

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


22

















 


	
  State of OHIO

  	
   

  
	
   

  	
   

  
	
  County of Cuyahoga

  	
  ss:

  



 


On February 2, 2002 before me, J. Robert Horst
personally appeared


 


ADRIAN DILLON


 


                                                                                                             ,
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 acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(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.


 


 


	
   

  	
  /s/ J. Robert Horst

  	
  [SEAL]

  
	
   

  	
   

  	
   

  
	
   

  	
  J. ROBERT HORST,
  Attorney

  	
   

  
	
   

  	
  NOTARY PUBLIC •
  STATE OF OHIO

  	
   

  
	
   

  	
  My commission has no expiration
  date.

  	
   

  
	
   

  	
  Section 147.00 R.O.

  	
   

  



 


	
  SCA18

  	
  Rev 10/17/00

  	
   

  	
   

  	
   

  	
  FORM 3005

  	
  1/01

  



 


23

















 


SCHEDULE “A”-LEGAL
DESCRIPTION


 


All that certain Real Property in the City of Los
Altos, County of Santa Clara, State of
California, described as follows:


 


All of Lot       , as
said Lot is shown on that certain Map of Tract No.
       recorded             
in Book        of Maps at Pages
       and       .


 


24











   EXHIBIT C

CERTIFICATE OF EMPLOYEE  


        The undersigned Employee hereby certifies to Agilent Technologies, Inc., a Delaware corporation (the "Company"), as follows: 



        1.     He
understand that the loan (the "Loan") provided for in the Loan Agreement dated the date hereof between the Company and the Employee is not transferable by the Employee
and is conditioned on the future performance of services by the Employee. 


        2.     The
Loan proceeds will be used only to purchase a principal residence of Employee being acquired in connection with the commencement of employment at a "new principal
place of work" within the meaning of Section 217 of the Internal Revenue Code of 1986, as amended. 


        3.     Employee
reasonably expects to be entitled to and will itemize deductions each year the Loan is outstanding. 


        4.     Employee's
immediately former principal residence shall not be converted to business or investment use. 



	Feb 3, 2002	 	 
	 	 	/s/ Adrian Dillon





25











QuickLinks


LOAN AGREEMENT