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HomeMy WebLinkAbout932765 , . " I RECORDING REQUESTED BY: RECEIVED 9/4/2007 at 3:31 PM RECEIVING # 932765 BOOK: 671 PAGE: 52 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY 000052, SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY DEED OF TRUST (FIRST LIEN POSITION) THIS DEED OF TRUST is dated as of July 10, 2007, among Forest Grove Holdings, LLC and Debra C. Thoman individually, whose address is PO BOX 364, Pleasant Grove, UT 84062 (referred to below as "Trustor"); ROST CAPITAL, LLC, a Utah limited liability company whose address is 807 East Pacific Drive, Suite C, American Fork, Utah 84003 (referred to "Beneficiary"); and John L. Valentine whose address is 120 East 300 North, Provo, UT 84606 (referred to below as "Trustee"). J, Conveyance and Grant. For valuable consideration, Trustor irrevocably grants and conveys to Trustee in trust, with power" of sale, for the benefit of Beneficiary as Beneficiary, all of Trustor's right, title, and interest in and to the following described real property, together with all existing or subsequently erected or affixed buildings, improvements and fixtures; all easements, rights of way, and appurtenance; all water, water rights and ditch rights (including stock in utilities with ditch or irrigation rights); and all other rights, royalties, and profits relating to the real property, including without limitation all minerals, oil, gas, geothennal and similar matters (the "Real Property"), located in Lincoln County, State of Wyoming: 7.0 rl That part of the Northeast Quarter of the Northeast Quarter of Section 7, Towns~ip 26 North, Range 112 W, Lincoln County, Wyoming described as follows: Beginning at a point South 44 degrees 15 West, 726.0 Feet from the Northeast comer of said Section 7 where is found a 2" galv. Steel pipe with brass cap inscribed "T26N R112 W" 86 S5 8788 1962 with mound of stone to West, thence North 00 ~egrees 14' East, 270.5 feet to a point South line of,land now belonging it the Wyoming HIghway Department of record in the Office of the Clerk of Lincoln County in Book -39PR on page 545; thence West, 610.0 feet along said Department land to its Southwest corner, a point on the East right-of-way of Highway 189; thence South 00 degrees 14' West, 268.0 feet along said right-of-way line to a point; thence South 89 degrees 46' East, 610,0 feet to the point of beginning. 1.1. The Real Property is 3.7 Acres, located the Northeast Quarter of the Northeast Quarter of Section 7, Township 26 North, Range 112 W, Lincoln County, Wyoming. The tax identification Number is: 12- 2612-07-1-00-016.00 " 1.2. Trustor irrevocably grants, conveys and assigns to Trustee in Trust, with power of sale, the Real Property, together with: (a) all buildings, structures, improvements, fixtures and built-in equipment and appliances now or hereafter placed thereon; (b) all present and future leases and all subleases executed with respect to the Real Property; (c) all rents, issues, profits, revenues and income thereof including all revenue, gross or 000053 net receipts, payments, and income derived from any business activity conducted by or on behalf of Trustor on the Real Property ("Property Income"); (d) all easements, licenses, rights, minerals, oil and gas, appurtenances, abandoned or vacated streets, alleys and rights-of-way, privileges and interests now or hereafter attached to or used in connection with the Real Property; (e) all policies of insurance on the Real Property and/or personal property located on the Real Property (the "Personal Property") and proceeds thereof and all awards and proceeds of any condemnation or like proceeding affecting the Real andlor Personal Property; and (f) all water, drainage, irrigation and electrical or' water user's rights appurtenant or related to the Real Property (hereafter together with the Real Property and any Personal Property collectively referred to as the "Property "), All components of the Property are deemed encumbered hereby as an entity and are declared to be part of the real estate whether or not physically attached to the Real Property.. THIS DEED OF TRUST, IS GIVEN TO SECURE (A) PAYMENT OF THE INDEBTEDNESS AND (B) PERFORMANCE OF ANY AND ALL OBLIGATIONS UNDER THIS DEED OF TRUST. THIS DEED OF TRUST IS GIVEN AND, ACCEPTED ON THE TERMS DESCRIBED BELOW. 2. Trustor's ReDresentations and Warranties. Trustor warrants that: (a) this Deed of Trust is executed at Trustor's request and not at the request of Beneficiary; (b) Trustor has the full power, right, and authority to enter into this Deed of Trust and to hypothecate the Property; (c) the provisions of this Deed of Trust do not conflict with, or result in a default under any agreement or other instrument binding upon Trustor and do not result in a violation of any law, regulation, court decree or order applicable to Trustor; (d) Trustor has established adequate means of obtaining from Trustor on a continuing basis information about Trustor's financial condition; (e) Beneficiary has made no representation to Trustor about Trustor (including without limitation the creditworthiness of Trustor); (f) any and all obligations Trustor may have incurred in connection with the Property are current and without default; and (g) Trustor hereby releases, waives, and relinquishes all exemptions and homestead rights which may exist with respect to the Property. , 3. Trustor's Waviers. Trustor waives all rights or defenses arising by reason of any "one action" or "anti- deficiency" law, or any other law which may prevent Beneficiary trom bringing any action against Trustor, including a claim for deficiency to the extent Beneficiary is otherwise entitled to a claim for deficiency, before or after Beneficiary's commencement or completion of any foreclosure action, either judicially or by exercise of a power of sale. . 4. Payment and Perfonnance. Except as otherwise provided in this Deed of Trust, Trustor shall pay to Beneficiary all indebtedness secured by this Deed of Trust as it becomes due, and Trustor shall strictly perform all their respective obligations under the Secured Promissory Note, this Deed of Trust,' and the Related Documents. The obligations of Forest Grove Holdings, LLC, Debrà C, Thoman, Manager and Debra C. Thoman individually are 3ccured by this Deed of Trust. 5. Possession and Maintenance of the ProDertv. Trustor agrees that Trustor's possession and use of the Property shall be governed by the following provisions: 5.,1. Possession and Use. Until the occun'ence of an Event of Default, Trustor may (1) remain in possession and control of the Property; (2) use, operate or manage the Property; and (3) collect the Rents from the Property. The following provisions relate to the use of the Property or to other limitations on the Property. This instrument is a Trust Deed executed in confonnity with the Utah Trust Deed Act, U.C.A. § 57-1-19, et seq. 5.2. Duty to Maintain. Preserve and Repair. All buildings, structures and other improvements which are presently erected and in the future are to be erected upon the Premises, shall, at Trustor's own cost and expense, be kept in good and substantial repair, working order and condition, and Trustor shall from time to time make, or cause to be made, all necessary and proper repairs, replacements, improvements and betterments thereto. Trustor shall not remove, demolish, materially alter, discontinue the use of, sell, transfer, assign, hypothecate or otherwise dispose of to any person any part of the Trust Property without the prior express written consent of Beneficiary, except that Trustor shall trom time to time make such substitutions, additions, modifications and improvements as may be necessary and as shall not impair the structural integrity, operating efficiency and economic value of the Trust' Property. All alterations, 2 OOOOS·~l replacements, renewals or additions made pursuant to this paragraph shall automatically become and constitute a part of the Trust Property and shall be covered by the lien ofthis Deed of Trust. Trustor shall not do, and shall not permit to be done, any act which may in any way impair or weaken the security under this Deed of Trust. 5.3. Compliance With Environmental Laws. Trustor represents and warrants to Beneficiary that: (1) During the period of Trustor's ownership of the Property, there has been no use, generation, manufacture, storage, treatment" disposal, release or threatened release of any Hazardous Substance by any person on, under, about or from the Property; (2) Trustor has no knowledge of, or reason to believe that there has been, except as previously disclosed to and acknowledged by Beneficiary in writing, (a) any breach or violation of any Environmental Laws, (b) any use, generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance on, under, about or from the Property by any prior owners or occupants of the Property, or (c) any actual or threatened litigation or ~Iaims of any kind by any person relating to such· matters; and (3) Except as previously disclosed to and acknowledged by Beneficiary in writing, (a) neither Trustor nor any tenant, contractor, agent or other authorized user of the Property shall use, generate, manufacture, store, treat, dispose of or release any Hazardous Substance on, under, about or from the Property; and (b) any such activity shall be conducted in compliance with all applicable federal, state, and local laws, regulations and ordinance, including without limitation all Environmental Laws. Trustor authorizes Beneficiary and its agents to enter upon the Property to make such inspections and tests, at Trustor's expense, as Beneficiary may deem appropriate to detennine compliance ofthe Property with this section of the Deed of Trust. Any inspections or tests made by Beneficiary shall be for Beneficiary's purposes only and shall not be construed to create any responsibility or liability on the part of Beneficiary to Trustor or to any other person. The representations and walTanties contained herein are based on Trustor's due diligence in investigating the Property for Hazardous Substances, Trustor hereby (1) releases and waives any future claims against Beneficiary for indemnity or contribution in the event Trustor becomes liable for cleanup or other costs under any such laws; and (2) agrees to indemnify and hold hannless Beneficiary against any and all claims, losses, liabilities, damages, penalties, and expenses which Beneficiary may directly or indirectly sustain or suffer resulting trom a breach of this section of the Deed of Trust or as a consequence of any use, generation, manufacture, storage, disposal, release or threatened release occUlTing prior to Trustor's ownership or interest in the Property, whether or not the same was or should have been known to Trustor. The provisions of this section of the Deed of Trust, including the obligation to indemnify, shall survive the payment of the indebtedness and the satisfaction and reconveyance of the lien of this Deed of Trust and shall not be affected by Beneficiary's acquisition of any interest in the Property, whether by foreclosure or otherwise. 5.4. Nuisance. Waste. Trustor shall not cause, conduct or pennit any nuisance nor commit, penn it, or suffer any stripping of or waste on or to the Property or any portion of the Property. Without limiting the generality of the foregoing, Trustor will not remove, or grant to any other party the right to remove, any timber, minerals (including oil and gas), coal, clay, scoria, soil, gravel or rock products without Beneficiary's prior written consent. 5.5. Removal of Improvements. Trustor shall not demolish or remove any improvements trom the Real Property without Beneficiary's prior written consent. As a condition to the removal of any improvements, Beneficiary may require Trustor to make arrangements satisfactory to Beneficiary to replace such improvements with improvements of at least equal value. 5.6. Beneficiary's Right to Enter. Beneficiary and Beneficiary's agents and representatives may enter upon the Real Property at all reasonable times to attend to Beneficiary's interests and to inspect the Real Property for purposes of Trustor's compliance with the tenns and conditions of this Deed of Trust. 5.7. Compliance with Governmental Requirements. Trustor shall promptly comply with all laws, ordinances, and regulations, now or hereafter in effect, of all governmental authorities applicable to the use or occupancy of the Property, including without limitation, the Americans With Disabilities Act. Trustor may contest in good faith any such law, ordinance, or regulation and withhold compliance during any proceeding, including appropriate appeals, so long as Trust has notified Beneficiary in writing prior to doing so and so long as, in Beneficiary's sole opinion, Beneficiary's interests in the Property are not 3 000055 jeopardized. Beneficiary may require Trustor to post adequate security or a surety bond, reasonably satisfactory to Beneficiary, to protect Beneficiary's interest. 5.8. Duty to Protect. Trustor agrees neither to abandon nor leave unattended the Property. Trustor shall do all other acts, in addition to those acts set forth above in this section, which from the character and use of the Property are reasonably necessary to protect and preserve the Property. 6. Due on Sale - Consent by Beneficiary. Beneficiary may, at Beneficiary's option, declare immediately due and payable all sums secured by this Deed of Trust upon the sale or transfer, without Beneficiary's prior written consent, of all or any part of the Real Property, or any interest in the Real Property. A "sale or transfer" means the conveyance of Real Property or any right, title or interest in the Real property; whether legal, beneficial or equitable; whether voluntary or involuntary; whether by outright sale, deed, installment sale contract, land contract, contract for deed, leasehold interest with a term greater than three (3) years, lease-option contract, or by sale, assignment, or transfer of any' beneficial interest in or to any land trust holding title to the Real Property, or by any other method of conveyance of an interest in the Real Property. 7. Taxes and Liens. The following provisions relating to the taxes and liens on the Property are part of this Deed of Trust: 7. I. Payment. Trustor shall pay when due (and in all events 10 days prior to delinquency) all taxes, special taxes, assessments, charges (including water and sewer), fines and impositions levied against or on account of the Property, and shall pay when due all claims for work done on or for services rendered or material furnished to the Property. Trustor shall maintain the Property fÌ'ee of all liens having priority over or equal to the interest of Beneficiary under this Deed of Trust, except for the lien of taxes and assessments not due, except for the Existing Indebtedness referred to below, and except as otherwise provided in this Deed of Trust. 7.2. Right to Contest. Trustor may withhold payment of any tax, assessment, or claim in connection with a good faith dispute over the obligation to pay, so long as Beneficiary's interest in the Property is not jeopardized. If a lien arises or is filed as a result of nonpayment, Trustor shal1 within fifteen (15) days after the lien arises or, if a lien is filed, within fifteen (15) days after Trustor has notice of the filing, secure the discharge of the lien, or if requested by Beneficiary, deposit with Beneficiary cash or a sufficient corporate surety bond or other security satisfactory to Beneficiary in an amount sufficient to discharge the lien plus any costs and reasonable attorneys' fees, or other charges that could accrue as a result of a foreclosure or sale under the lien. In any contest, Trustor shal1 defend itself and Beneficiary and shall satisfy any adverse judgment before enforcement against the Property~ Trustor shal1 name Beneficiary as an additional oblige under any surety bond furnished in the contest proceeding. 7.3. Evidence of Payment. Trustor shal1 upon demand furnish to Beneficiary satisfactory evidence of payment of the taxes, charges, liens, encumbrances or assessments and shal1 authorize the appropriate governmental official to deliver to Beneficiary at any time a written statement of the taxes and assessments against the Property . 7.4. Change in Laws. During the term of this Deed of Trust, in the event ofthe passage after the date of this Deed of Trust of any law of the State of Utah, or any other governmental entity, changing in any way the laws now in force for the taxation of trust deeds, or debts secured thereby, for state or local purposes, or the manner of the operation of any such taxes, so as to affect the interest of Beneficiary, then and in such event, Trustor shal1 bear and pay the full amount of such taxes, provided that if for any reason payment by Trustor of any such new or additional taxes would be unlawful or if the payment thereof would constitute usury or render the indebtedness secured hereby wholly or partially usurious under any of the terms or provisions of the obligation secured hereunder, or otherwise, Beneficiary may, at Beneficiary's option, declare the whole sum secured by this Deed of Trust, with interest thereon, to be immediately due and payable, or Beneficiary may, at Beneficiary's option, pay that amount or portion of such taxes as renders the indebtedness secured hereby unlawful or usurious, in which event Trustor shal1 concurrently therewith pay the remaining lawful and nonusurious portion or balance of said taxes. 4 000056 7.5. Notice of Construction. Trustor shall notify Beneficiary at least fifteen (IS) days before any work is commenced, any services are furnished, or any materials are supplied to the Property, if any mechanic's lien, materialmen's lien, or other lien could be asserted on account of the work, services, or materials. Trustor will upon request of Beneficiary furnish to Beneficiary advance assurances satisfactory to Beneficiary that Trustor can and will pay the cost of such improvements. 7.6. Payments Made by Beneficiary. Trustor shall repay to Beneficiary all sums, with interest thereon as hereafter provided, which at any time may be paid or advanced by Beneficiary for the payment of insurance, taxes, assessments, governmental, municipal, or other charges or impositions, title searches, title reports or abstracts, any obligation secured by a prior lien upon or prior interest in the Property and any other advances made by Beneficiary which are the responsibility of Trustor, to maintain this Trust Deed as a valid and subsisting lien upon the Property and to preserve and protect Beneficiary's, Trustee's or Trustor's interest therein or hereunder. All such advances shall be wholly optional on the part of Beneficiary, and Trustor's obligation to repay the same, with interest, to Beneficiary shall be secured by the lien of this Trust Deed. The amount of each such advance shall, for the period during which it remains unpaid and both before and after judgment, bear interest at the rate of eighteen percent (18%) per annum until paid. 8. Property DamaJ?:e Insurance. The following provisions relating to insuring the Property are a part of this Deed of Trust: 8.1. ' Maintenance of Insurance. Trustor shaH procure and maintain policies of fire insurance with standard extended coverage endorsements on a replacement basis for the fulJ insurable value covering alJ improvements on the Real Property in an amount sufficient to avoid application of any coinsurance clause, and with a standard mortgagee clause in favor of Beneficiary. Trustor shall also procure and maintain comprehensive general liability insurance insuring against any and aH liability of Trustor or claims of liability of Trustor arising out of, occasioned by or resulting trom any accident or otherwise resulting in or about the Trust Property and the adjoining streets, sidewalks and passageways, in a minimum single limit combined amount, of [$500.000] for death, bodily injury and property damage (including blanket contractual liability insurance, garage liability, innkeeper's liability, products liability and elevator liability, if applicable), and Beneficiary being named as additional insureds in such liability insurance policies. Additionally, Trustor shall maintain "All-Risk" coverage policy of fire and hazard insurance (non-reporting form), including flood, earthquake and "The Replacement Cost" Endorsement with respect to the Trust Property, which insurance policy shall contain an agreed amount endorsement ~nd be in an aggregate amount not less than 100% of the agreed upon full insurable replacement value of the Trust Property Business interruption andlor loss of rental insurance coverage, as applicable, naming Beneficiary as payee, sufficient to pay, during the period of interruption or loss, a substantial portion of normal operating profits of the Trust Property. ,Boiler and machinery insurance covering pressure vessels, air tanks, boilers, machinery, pressure piping, heating, air conditioning and elevator equipment in such amounts as the Mortgagee shall reasonably require trom time to time, provided that the Trust Property contains equipment of such nature. Policies shaH be written in form, amounts, coverages and basis reasonably acceptable to Beneficiary and issued by a company or companies reasonably acceptable to Beneficiary. Trustor, upon request of Beneficiary, will deliver to Beneficiary trom time to time the policies or certificates of insurance in form satisfactory to Beneficiary, including stipulations that coverages will not be cancelled, altered or diminished without at least thirty (30) days prior written notice , to Beneficiary. At least thirty (30) days prior to the expiration of any such policy, Trustor shall furnish evidence satisfactory to Beneficiary that such policy has been renewed, replaced, transferred to another carrier or is no longer required by this paragraph. Each insurance policy also shall include an endorsement providing that coverage in favor of Beneficiary will not be impaired in any way by any act, omission or default of Trustor or any other person. Should the Real Property be located in an area designated by the Director of the Federal Emergency Management Agency as a special flood hazard area, Trustor agrees to obtain and maintain Federal Flood Insurance, if available, within 45 days after notice is given by Beneficiary that the Property is located in a special flood hazard area, for the full unpaid principal balance of the loan and any prior liens on the property securing the loan, up to the maximum policy limits set under the National Flood Insurance Program, or as otherwise required by Beneficiary, and to maintain such insurance for the term of the Joan. 5 00005~i' 8.2. Additional Policies. Trustor shall not take out any separate or additional insurance with respect to the Trust Property which is contributing in the event of loss unless it is properly compatible with all of the requirements of this Deed of Trust. 8.3. Application of Proceeds. Trustor shall promptly notify Beneficiary of any loss or damage to the Property. Beneficiary may make proof of loss if Trustor fails to do so within fifteen (15) days of the casualty, Whether or not Beneficiary's security is impaired, Beneficiary may, at Beneficiary's election, receive and retain the proceeds of any insurance and apply the proceeds to the reduction of the indebtedness, payment of any lien affecting the Property, or the restoration and repair of the Property. If Beneficiary elects to apply the proceeds to restoration and repair, Trustor shall repair or replace the damaged or destroyed Improvements in a manner satisfactory to Beneficiary. Beneficiary shall, upon satisfactory proof of such expenditure, payor reimburse Trustor ûom the proceeds for the reasonable cost of repair or restoration if Trustor is not in default under this Deed of Trust. Any proceeds which have not been disbursed within 180 days after their receipt and which Beneficiary has not committed to the repair or restoration of the Property shall be used first to pay any amount owing to Beneficiary under this Deed of Trust, then to pay accrued interest, and the remainder, i£any, shall be applied to the principal balance of the Indebtedness. If Beneficiary holds any proceeds ~fter payment in full of the 1ndebtedness, such proceeds shall be paid to Trustor as Trustor's interests may appear. 8.4. Trustor's Report on Insurance. Upon request of Beneficiary, however not more than once a year, Trustor shall furnish to Beneficiai'y a report on each existing policy of insurance showing: (1) the name of the insurer; (2) the risks insured; (3) the amount of the policy; (4) the property insured, the then current replacement value of such property, and the manner of deteonining that value; and (5) the expiration date of the policy. Trustor shall, upon request of Beneficiary, have an independent appraiser satisfactory to Beneficiary detennine the cash value replacement cost of the Property. 9. Beneficiary's Expenditures. If any action or proceeding is commenced that would materially affect Beneficiary's interest in the Property or if Trustor fails to comply with any provision of this Deed of Trust or any Related Documents, including but not limited to Trustor's failure to discharge or pay when due any amounts Trustor is required to discharge or pay under this Deed of Trust or any Related Documents, Beneficiary on Trustor's behalf may (but shall not be obligated to) take any action that Beneficiary deems appropriate, including but not limited to discharging or paying all taxes, liens, security interests, encumbrances and other claims, at any time levied or placed on the Property and paying all costs for insuring, maintaining and preserving the Property. All such expenditures incurred or paid by Beneficiary for such purposes wí\1 then bear interest at the rate charged under the Note ûom the date incurred or paid by Beneficiary to the date of repayment by Trustor. All such expenses will become a part of the Indebtedness and, at Beneficiary's option, will (A) be payable on demand; (B) be added to the balance of the Note and be apportioned among and be payable with any installment payments to become due during either (1) the term of any applicable insurance policy; or (2) the remaining tenn of the Note; or (C) be treated as a balloon payment which will be due and payable at the Note's maturity. The Deed of Trust also will secure payment of these amounts. Such right shall be in addition to all other rights and remedies to which Beneficiary may be entitled upon Default. 10. Warranty: Defense of Title. The following provisions relating to ownership of the Property are a part of this Deed of Trust: 10.]. Title. Trustor warrants that: (a) Trustor holds good and marketable title of record to the Property in fee simple, ûee and clear of all liens and encumbrances other than those set forth in the Real Property description or in the Existing Indebtedness section below or in any title insurance policy, title report, or final title opinion issued in favor of, and accepted by, Beneficiary in connection with this Deed of Trust, (b) Trustor has the full right, power, and a~thority to execute and deliver this Deed of Trust to Beneficiary, and (c) any and all obligations Trustor may have incurred in connection with the Property are current and without default. 10.2. Defense of Title. Subject to the exception in the paragraph above, Trustor warrants and will forever defend the title to the Property against the lawful claims of all persons. In the event any action or 6 000058 proceeding is commenced that questions Trustor's title or the interest of Trustee or Beneficiary under this Deed of Trust, Trustor shall defend the action at Trustor's expense. Trustor may be the nominal party in such proceeding, but Beneficiary shall be entitled tQ participate in the proceeding and to be represented in the proceeding by counsel of Beneficiary's own choice, and Trustor will deliver, or cause to be delivered, to Beneficiary such instruments as Beneficiary may request &om time to time to peI:II1it such participation. IO.3.ComDliance With Laws. Trustor warrants that the Property and Trustor's use of the Property complies with all existing applicable laws, ordinances, and regulations of governmental authorities. lOA. Survival of Representations and Warranties. All representations, warranties, and agreements made by Trustor in this Deed of Trust shall survive the execution and delivery of this Deed of Trust, shall be continuing in nature, and shall remain in full force and effect until such time as Trustor's Indebtedness shall be paid in full. II. Condemnation. The following provisions relating to condemnation proceedings are a part of this Deed of Trust: 11.1. Proceedings. If any proceeding in condemnation is filed, Trustor shall promptly notify Beneficiary in writing, and Trustor shall promptly take such steps as may be necessary to defend the action and obtain the award. Trustor may be the nominal party in such proceeding, but Beneficiary shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of its own choice, and Trustor will deliver Qr cause to be delivered to Beneficiary such instruments and documentation as may be requested by Beneficiary from time to time to pennit such participation. 11.2. Application of Net Proceeds. If all or any part of the Property is condemned by eminent domain proceedings or by any proceeding or purchase in lieu of condemnation, Beneficiary may at its election require that all or any portion of the net proceeds of the award be applied to the Indébtedness or the repair or restoration of the Property. The net proceeds of the award shall mean the award after payment of all reasonable costs, expenses, and attorneys' fees incurred by Trustee or Beneficiary in connection with the condemnation. ] 2. Imposition of Taxes. Fees and Charges by Governmental Authorities. The following provisions relating to governmental taxes, fees and charges are a part of this Deed of Trust: 12.1. Current Taxes. Fees and Charges. Up~n request by Beneficiary, Trustor shall execute such documents in addition to this Deed of Trust and take whatever other actio!1 is requested by Beneficiary to perfect and continue Beneficiary's lien on the Real Property. Trustor shall reimburse Beneficiary for all taxes, as described below, together with all expenses incurred in recording, perfecting or continuing this Deed of Trust, including without limitation all taxes, fees, documentary stamps, and other charges for recording or registering this Deed of Trust. 12.2. Taxes. The following shall constitute taxes to which this section applies: (1) a specific tax upon this type of Deed of Trust or upon all or any part of the Indebtedness secured by this Deed of Trust; (2) a specific tax on Trustor which Trustor is authorized or required to deduct from payments on the Indebtedness secured by this type of Deed of Trust; (3) a tax on this type of Deed of Trust chargeable against the Beneficiary or the holder of the Note; and (4) a specific tax on all or any portion of the Indebtedness or on payments of principal and interest made by Trustor. 12.3. Subsequent Taxes. If any tax to which th is section applies is enacted subsequent to the date of th is Deed of Trust, this event shall have the same effect as an Event of Default, and Beneficiary may exercise any or all of its available remedies for an Event of Default as provided below unless Trustor either (1) pays the tax before it becomes delinquent, or (2) contests the tax as provided above in the Taxes and Liens section and deposits with Beneficiary cash or a sufficient corporate surety bond or other security satisfactory to Beneficiary. ' 13. Security Agreement: Financing Statements. The following provisions relating to this Deed of Trust as a security agreement are a part ofthis Deed of Trust: 7 000059 13.1. Security Agreement. This instrument shall constitute a Security Agreement to the extent any of the Property constitutes fixtures, and Beneficiary shan have all of the rights or a secured party under the Uniform Commercial Code as amended from time to time. The Trustor hereby gránts to Beneficiary a security interest in all furniture, fixtures and equipment and all other machinery, appliances, furnishings, tools and building materials now owned or hereafter acquired by Trustor, and installed or to be installed in or on the Premises and used or to be used in the management or operation of the Trust Property, and all substitutions, replacements, additions and accessions thereto, together with all cash and non-cash proceeds thereof. Trustor shall, and does hereby authorize Beneficiary, on Beneficiary's behalf to, execute, deliver, file and retile any financing statements, continuation statements, or other security agreements that Beneficiary may require from time to time to confirm the lien of this Deed of Trust with respect to such property. Without limiting the foregoing, Trustor hereby irrevocably constitutes and appoints Beneficiary with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority (coupled with an interest) in the place and stead of Trustor and in the name of Trustor or in Beneficiary's own name, for Beneficiary to execute, deliver and tile such instruments for and on behalf of Trustor. Notwithstanding any release of any or all of that property included in the Trust Property which is deemed "real property," and proceedings to foreclose this Deed of Trust or execute any sale hereunder, the terms hereof shall survive as a security agreement with respect to the security interest created hereby and referred to above until the repayment or satisfaction in full of the obligations of Trustor as are now or hereafter secured hereby. 13.2. Security Interest. Upon request by Beneficiary, Trustor shall take whatever action is requested by Beneficiary to perfect and continue Beneficiary's security interest in the Rents or fixtures. In addition to recording this Deed of Trust in the real property records, Beneficiary may, at any time and without further authorization from Trustor, tile executed counterparts, copies or reproductions of this Deed of Trust as a financing statement or tile separate financing statements. Trustor shall reimburse Beneficiary for all expenses incurred in perfecting or continuing this security interest. Upon default, Trustor shall not remove, sever or detach the fixtures from the Property. 13.3. Addresses. The mailing addresses of Trustor (debtor) and Beneficiary (secured party) from which information concerning the security interest granted by this Deed of Trust may be obtained (each as required by the Uniform Commercial Code) are as stated on the first page of this Deed of Trust. 14. Further Assurances:' Attornev-In-Fact. The following provisions relating to further assurances and attorney-in- fact are a part of this Deed of Trust: ' 14.1. Further Assurances. At any time, and from time to time, upon request of Beneficiary, Trustor will make, execute and deliver, or will cause to be made, executed or delivered, to Beneficiary or to Beneficiary's designee, and when requested by Beneficiary, cause to be tiled, recorded, refilled, or rerecorded, as the case may be, at such times and in such offices and places as Beneficiary may deem appropriate, any and all such mortgages, deeds of trust, sec'urity deeds, security agreements, financing statements, continuation statements, instruments of further assurance, certificates, and other documents as may, in the sole opinion of Beneficiary, be necessary or desirable in order to effectuate, complete, perfect, continue, or preserve (I) Trustor's and Trustor's obligations under the Note, this Deed of Trust, and the Related Documents, and (2) the liens and security interests created by this Deed of Trust on the Property, whether now owned or hereafter acquired by Trustor. Unless prohibited by law or Beneficiary agrees to the contrary in writing, Trustor shall reimburse Beneficiary for all costs and expenses incurred in connection with the matters referred to in this paragraph, 14.2. Attorney-in-Fact. If Trustor fails to do any of the things referred to in the preceding paragraph, Beneficiary may do so for and in the name of Trustor and at Trustor's expense. For such purposes, Trustor hereby irrevocably appoints Beneficiary as Trustor's attorney-in-fact for the purpose of making, executing, delivering, filing, recording, and doing all other things as may be necéssary or desirable, in Beneficiary's sole opinion, to accomplish the matters referred to in the preceding paragraph. 8 · 000060 l5. Full Performance. If Trustor pays all the Indebtedness when due, and otherwise performs all the obligations imposed upon Trustor under this Deed of Trust, Beneficiary shall execute and deliver to Trustee a request for full reconveyance and shall execute and deliver to Trustor suitable statements of termination of any financing statement on file evidencing Beneficiary's security interest in the Rents and the Personal Property. Any reconveyance fee required by law shall be paid by Trustor, if permitted by applicable law. ] 6. Indemnification. Trustor hereby agrees to and does hereby indemnify, protect, defend and save harmless Beneficiary and its trustees, officers, employees, agents, attorneys and shareholders (hereinafter referred to as the "Indenmified Parties") iTom and against any and all losses, damages, expenses or liabilities of any kind or nature and iTom any suits, claims or demands, including reasonable counsel fees incurred in investigating or defending such claim, suffered by any of them and caused by, relating to, arising out of, resulting trom, or in any way connected with this Deed of Trust and the transactions contemplated herein (unless caused by the gross negligence or willful misconduct of the Indemnified Parties), including, without limitation, (i) disputes between any architect, general contractor, subcontractor, materialman or supplier, or on account of any act or omission to act by the Indenmified Parties in connection with this Deed of Trust, or (ii) losses, damages, expenses or liabilities sustained by the Indenmified Parties in connection with any environmental sampling or cleanup of the Trust Property required or mandated by any federal, state or local law, ordinance, rule or regulation. Without limiting the generality of the foregoing, Trustor shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties iTom and against any and all Losses and costs of Remediation (whether or not performed voluntarily), engineers' fees, environmental consultants' fees, and costs of investigation (including but not limited to sampling, testing, and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas) imposed upon or incurred by or asserted against any Indemnified Parties, and directly or indirectly arising out of or in any way relating to anyone or more of the following: (a) any presence of any Hazardous Substances (as that term is defined in Section 26 below) in, on, above, or under the Trust Property; (b) any past, present or threatened Release of Hazardous Substances in, on, above, under or iTom the Trust Property; (c) any activity by Trustor, any person or entity affiliated with Trustor or any tenant or other user of the Trust Property in connection with any actual, proposed or threatened use, treatment, storage, holding, existence, disposition or other Release, generation, production, manufacturing, processing, refining, control, management, abatement, removal, handling, transfer or transportation to or from the Trust Property of any Hazardous Substances at anytime located in, under, on or above the Trust Property; (d) any activity by Trustor, any person or entity affiliated with Trustor or any tenant or other user of the Trust Property in connection with any actual or proposed Remediation of any Hazardous Substances at any time located in, under, on or above the Trust Property, whether or not such Remediation is voluntary or pursuant to court or administrative order, including but not limited to any removal, remedial or corrective action; (e) any past, present or threatened non-compliance or violations of any Applicable Environmental Laws (as that term is define below) or permits issued pursuant to any Applicable Environmental Law in connection with the Trust Property or operations thereon, including but not limited to any failure by Trustor, any person or entity affiliated with Trustor or any tenant or other user of the Trust Property to comply with any order of any governmental authority in connection with any Applicable Environmental Laws; (f) the imposition, recording or filing or the threatened imposition, recording or filing of any Environmental Lien (as that term is defined below) encumbering the Trust Property under any Applicable Environmental Law; (g) any administrative processes or proceedings or judicial proceedings in any way connected with any matter addressed in this' Section; (h) any past, present or threatened injury to, destruction of or loss of natural resourçes in any way connected with the Trust Property, including but not limited to costs to investigate and assess such injury, destruction or loss; (i) any acts of Trustor or other users of the Trust Property in arranging for disposal or treatment, or arranging with a transporter for transport for disposal or n'eatment, of Hazardous Substances owned or possessed by such Trustor or other users, at any facility 'or incineration vessel owned or operated by another person or entity and containing such or similar Hazardous Substances; U) any acts of Trustor or other users of the Trust Property, in accepting any Hazardous Substances for transport to disposal or treatment facilities, incineràtion vessels or sites selected by Trustor or such other users, from which there is a Release, or a threatened Release of any Hazardous Substance which causes the incurrence of costs for Remediation; (k) any personal injury, wrongful death, or property damage arising under any statutory or common law or tort law theory, including but not limited to damages assessed for the maintenance of a private or public nuisance or for the conducting of an abnormally dangerous activity on or near the Trust Property; and (1) any misrepresentation or inaccuracy in any representation or warranty or material breach or failure to perform any covenants or other obligations pursuant to this Agreement. 9 000061. J 7. Events Of Default. Each of the following, at Beneficiary's option, shall constitute an Event of Default u~der this Deed of Trust: 17. J. Payment Default. Trustor fails to make any payment when due under the Indebtedness. J 7.2. Other Defaults. Trustor or Trustor fails to comply with or to perfonn any other tenn, obligation, covenant or condition contained in this Deed of Trust, the Loan Agreement or in any of the Related Documents or to comply with or to perform any term, obligation, covenant or condition contained in any other agreement between Beneficiary and Trustor or Trustor. 17.3. Compliance Default. Failure to comply with any other tenn, obligation, covenant or condition contained in this Deed of Trust, the Loan Agreement or in any of the Related Documents. 17.4. Default on Other Payments. Failure of Trustor within the time required by this Deed of Trust to make any payment for taxes or insurance, or any other payment necessary to prevent tiling of or to effect discharge of any lien, 17.5. Environmental Default. Failure of any party to comply with or perform when due any term, obligation, covenant or condition contained in any environmental agreement executed in connection with the Property. 17.6. Default in Favor of Third Parties. Should Trustor or any Trustor default under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Trustor's property or Trustor's or any Trustor's ability to repay the Indebtedness or perform their respective obligations under this Deed of Trust, the Loan Agreement or any of the Related Documents. 17.7. False Statements. Any warranty, representation or statement made or furnished to Beneficiary by Trustor or Trustor or on Trustor's or Trustor's behalf under this Deed of Trust or the Related Documents is false or misleading in any material respect, either now or at the time made or furnished or becomes false or misleading at any time thereafter. 17.8. Defective Collateralization. This Deed of Trust, the Loan Agreement or any of the Related Documents ceases to be in full force and effect (including failure of any collateral document to create a valid and perfected security interest or lien) at any time and for any reason. 17.9. Insolvency. The dissolution or termination of Trustor's or Trustor's existences as a charter school under applicable laws of the State of Utah governing charter schools, the insolvency of Trustor or Trustor, the appointment of a receiver for any part of Trustor's or Trustor's property, any assignmept for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Trustor or Trustor. 17.10. Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Trustor or Trustor or by any governmental agency against any property securing the Indebtedness. However, this Event of Default sh"all not apply if there is a good faith dispute by Trustor or Trustor as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Trustor or Trustor gives Beneficiary written notice of the creditor or forfeiture proceeding and deposits with Beneficiary monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Beneficiary, in its sole disCretion, as being an adequate reserve or bond for the dispute. 17.11. Breach of Other AlITeement. Any breach by Trustor or Trustor under the terms of any other agreement between Trustor or Trustor and Beneficiary that is not remedied within any grace period 10 000062 provided therein, including without limitation any agreement concerning any indebtedness or other obligation of Trustor or Trustor to Beneficiary, whether existing now or later. 17.12. Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the Indebtedness or any Guarantor dies or becomes incompetent, or revokes· or disputes the validity of, or liability under, any Guaranty of the Indebtedness. 17.13. Adverse Change. A material adverse change occurs in Trustor's or Trustor's financial condition, or Beneficiary believes this prospect of payment or performance ofthe Indebtedness is impaired. 17.14. Misrepresentations. Trustor has made any material misrepresentation, or has failed to disclose any material fact, in any written representations and disclosures made by Trustor in order to induce Beneficiary to extend credit as evidenced by the Note or notes and other agreements which this Trust Deed secures; 17. IS. Abandonment. Trustor abandons the Property or leaves the same unattended or unprotected. 17. I 6. Transfer of Trust PropertY. In the event that Trustor shall have transferred, caused, or involuntarily suffered or consented, to have been transferred, title to or possession of any interest in the Trust Property, or any part thereof, to any Person without the prior express written consent of Beneficiary. 17.17. Insecurity. Beneficiary in good faith believes itself insecure. 18. Rights and Remedies on Default. If an Event of Default occurs under this Deed of Trust, at any time thereafter, Trustee or Beneficiary may exercise anyone or more of the following rights and remedies: 18.1. Election of Remedies. Election by Beneficiary to pursue any remedy shall not eX,clude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Trustor under this Deed of Trust, after Trustor's failure to perform, shall not affect Beneficiary's right to declare a default and exercise itsremedies. 18.2. Accelerate Indebtedness. Beneficiary shall have the right at its option without notice to Trustor or Trustor to declare the entire Indebtedness immediately due and payable, including any prepayment penalty which Trustor would be required to pay and charge interest at the rate of eighteen percent (25%) per annum ITom the date of default until said indebtedness is paid. ' 18.3. Foreclosure. With respect to all or any part of the Real Property, the Trustee shall have the right to foreclose by notice and sale, and Beneficiary shall have the right to foreclose by judicial foreclosure, in either case in accordance with and to the full extent provided by applicable law. 18.4. UCC Remedies. With respect to all or any part of the Personal Property, Beneficiary shall have all the rights and remedies of a secured party under the Uniform Commercial Code. 18.5. Collect Rents. Beneficiary shall have the right, without notice to Trustor or Trustor to take possession of and manage the Property and collect the Rents, including amounts past due and unpaid, and ·apply the net proceeds, over and above Beneficiary's costs, against the Indebtedness, in furtherance of this right, Beneficiary may require any tenant or othèr user of the Property to make payments of ~ent or use fees directly to Beneficiary. If the Rents are collected by Beneficiary, then Trustor irrevocablY designates Beneficiary as Trustor's attorney-in-fact to endorse instruments received in payment thereof in the name of Trustor and to negotiate the same and collect the proceeds. Payments by tenants or other users to Beneficiary in response to Beneficiary's demand shall satisfy the obligations for which the payments are made, whether or not any proper grounds for the demand existed. Beneficiary may exercise its rights under this subparagraph either in person, by agent, or through a receiver. 18.6. Appoint Receiver. Beneficiary shall have the right to have a receiver appointed to take possession of all or any part of the Property, with the power to protect and preserve the Property, to, operate the Property 11 000063 preceding foreclosure or sale, and to collect the Rents trom the 'Property and apply the proceeds, over and above the cost of the receivership, against the Indebtedness. Trustor hereby waives any requirement that the receiver be impartial and disinterested as to all of the parties and agrees that employment by Beneficiary shall not disqualify a person from serving as a receiver. 18.7. Tenancy at Sufferance. If Trustor remains in possession of the Property after the Property is sold as provided above or Beneficiary otherwise becomes entitled to possession of the Property upon default of Trustor, Trustor shall become a tenant at sufferance of Beneficiary or the purchaser of the Property and shall, at Beneficiary's option, either (1) pay a reasonable rental for the use of the Property, or (2) vacate the Property il1U11ediately upon the demand of Beneficiary. 18.8. Other Remedies. Trustee or Beneficiary shall have any other right or remedy provided in this Deed of Trust or the Note or by law. 18.9. Notice of Sale. Beneficiary shall give Trustor reasonable notice of the time and place of any public sale of the Personal Property or of the time after which any private sale or other intended disposition of the Personal Property is to be made. 'Reasonable notice shall mean notice given at least ten (10) days before the time of the sale or disposition. Any sale of the Personal Property may be made in conjunction with any sale of the Real Property. ' 18.1 O. Sale of the Property. To the extent permitted by applicable law, Trustor and Trustor hereby waives any and all rights to have the Property marshaled. In exercising its rights and remedies, the Trustee or Beneficiary shall be free to sell all or any part of the Property together or separately, in one sale or by separate sales. Beneficiary shall be entitled to bid at any public sale on all or any portion of the Property. 18.11. Attorneys' Fees: Expenses: If Beneficiary institutes any suit or action to enforce any of the terms of this Deed of Trust, Beneficiary shall be entitled to recover such sum as the court may adjudge reasonable as attorneys' fees at trial and upon any appeal. Whether or not any court action is involved, and to the extent not prohibited by law, all reasonable expenses Beneficiary incurs that in Beneficiary's opinion are necessary at any time for the protection of its interest or the enforcement of its rights shall become a part of the Indebtedness payable on demand and shall bear interest at the Note rate from the date of the expenditure until repaid, Expenses covered by this paragraph include, without limitation, however subject to any limits under applicable law, Beneficiary's reasonable attorneys' fees and Beneficiary's legal expenses, whether or not there is a lawsuit, including reasonable attorneys' fees and expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services, the cost of searching records, obtaining title reports (including foreclosure reports), surveyors' reports, and appraisal fees, title insurance, and fees for the Trustee, to the extent permitted by applicable law. Trustor also will pay any court costs, in addition to all other sums provided by law. 18.12. Riehts of Trustee. Trustee shall have all of the rights and duties QfBeneficiary as set forth in this section. 19. Powers and Obligations of Trustee. The following provisions relating to the powers and obligations of Trustee are part of this Deed of Trust: 19.1. Powers of Trustee. In addition to all powers of Trustee arising as a matter oflaw, Trustee shall have the power to take the following actions with respect to the Property upon the written request of Beneficiary and Trustor: (a) join in preparing and filing a map or plat of the Real Property, including the dedication of streets or other rights to the public; (b) join in granting any easement or creating any restriction on the Real Property; and (c) join in any subordination or other agreement affecting this Deed of Trust or the interest of Beneficiary under this Deed of Trust. 19.2. Obligations to Notify. Trustee shall not be obligated to notify any other party of a pending sale under any other trust deed or lien, or of any action or proceeding in which Trustor, Beneficiary, or Trustee shall be a party, unless the action or proceeding is brought by Trustee. . 12 000064 19.3. Trustee. Trustee shall meet all qualifications required for Trustee under applicable law. In addition to the rights and remedies set forth above, with respect to all or any part of the Property, the Trustee shall have the right to foreclose, by notice and sale, and Beneficiary shall have the right to foreclose by judicial foreclosure, in either case in accordance with and to the full extent provided by applicable law. 19.4. Successor Trustee. Beneficiary, at Beneficiary's option, may iTom time to time appoint a successor Trustee to any Trustee appointed under this Deed of Trust by an instrument executed and acknowledged by Beneficiary and recorded in the office of the recorder of Utah County, State of Utah. The instrument shall contain, in addition to all other matters required by state law, the names of the original Beneficiary, Trustee, and Trustor, the book and page where this Deed of Trust is recorded, and the name and address of the successor trustee, and the instrument shall be executed and acknowledged by Beneficiary or its successors in interest. The successor trustee, without conveyance of the Property, shall succeed to all the title, power, and duties conferred upon the Trustee in this Deed of Trust and by applicable law. This procedure for substitution of Trustee shall govern to the exclusion ofall other provisions for substitution. 20. Cumulative RilZhts, The rights and remedies herein expressed to be vested in or conferred upon Beneficiary shall be cumulative and shall be in addition to and not in substitution for or in 'derogation of the rights and remedies conferred by any applicable law, The failure, at anyone or more times, of Beneficiary to assert the right to declare the principal indebtedness under the Loan Agreement, or the Loan Documents which are the subject of the the granting of any extension or extensions of time of payment thereof either to the maker or to any other Person, or taking of other or additional security for the payment thereof, or releasing any security, or changing any of the terms of this Deed of Trust, the Loan Agreement, or any other obligation accompanying this Deed of Trust, or waiver of or failure to exercise any right under a,ny covenant or stipulation herein contained shall not in any way affect this Deed of Trust nor the rights of Beneficiary hereunder nor operate as a release trom any personal liability upon the Loan Agreement, or other obligation accompanying this Deed of Trust, nor under any covenant or stipulation therein contained, nor under any agreement assuming the payment of hereunder, under the Loan Agreement or obligations. 21. Notices. Unless otherwise provided by applicable law, any notice required to be given under this Deed of Trust or required by'law, including without limitation any notice of default and any notice of sale shall be given in writing, and shall be effective when actually delivered in accordance with the law or with this Deed of Trust, when actually received by telefacsimile (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, jf mailed, when deposited in the United States mail, as first" class, certified or registered mail, postage prepaid, directed to the addresses shown near the beginning of this Deed of Trust. All copies of notices of foreclosure trom the holder of any lien which has priority over this Deed of Trust shall be sent to Beneficiary's address, as shown near the beginning of this Deed of Trust. Notwithstanding any other provision of this Deed of Trust, all notices given under Utah Code Ann. Section 57-1-26 shall be given as required therein. Any party may change its address for notices under this Deed of Trust by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party's address. For notice purposes, Trustor agrees to keep Beneficiary informed at all times of Trustor's CUlTent address. Unless otherwise provided by applicable law, if there is more than one Trustor, any notice given by Beneficiary to any Trustor is deemed to be notice given to all Trustors. 22. Further Assurances. The parties hereto agree to do all things deemed necessary by Beneficiary in order to fully document the loan evidenced by the Loan Agreement, this Deed of Trust and any related agreements, and will fulIy cooperate concerning the execution and delivery of security agreements, stock power, instructions andlor other documents pertaining to any coIlateral intended to secure the Indebtedness. The undersigned agree to assist in the cure of any defects in the execution, delivery or substance of the Loan Agreement and related agreements, and in the creation and perfection of any liens, security interests or other collateral rights securing the Loan Agreement and the Indebtedness. 23. Consent to Sell Loan. The parties hereto agree: (a) Beneficiary may sell or transfer all or part of this loan to one or more purchasers, whether related or unrelated to Beneficiary; (b) Beneficiary may provide to any purchaser, or potential purchaser, any information or knowledge Beneficiary may have about the parties or about any other matter relating to this loan obligation, and the parties waive any rights to privacy it may have 13 , 000065 with respect to such matters; (c) the purchaser of a loan will be considered its absolute owner and will have all the rights granted under the loan documents or agreements governing the sale of the loan; and (d) the purchaser of a loan may enforce its interests irrespective of any claims or defenses that the parties may have against Beneficiary. 24. Facsimile and Counterpart. This document may be signed in any number of separate copies, each of which shall be effective as an original, but all of which taken togethtr shall constitute a single document. An electronic transmission or other facsimile of this document or any related document shall be deemed an original and shall be admissible as evidence of the document and the signer's execution, 25. Miscellaneous Provisions. The following miscellaneous provisions are a part of this Deed of Trust: 25.1. Amendments. This Deed of Trust, together with the Promissory Note and any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Deed of Trust. No alteration of or amendment to this Deed of Trust shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. 25.2. Caption Headings. Caption headings in this Deed of Trust are for convenience purposes only and are not to be used to interpret or define the provisions of this Deed of Trust. 25.3. Merger. There shall be no merger of the interest or estate created by this Deed of Trust with any other interest or estate in the Property at any time held by or for the benefit of Beneficiary in any capacity, without the written consent of Beneficiary. 25.4. Governin~ Law. This Deed of Trust will be governed by federal law applicable to Beneficiary and, to the extent not preempted by federal law, the laws of the State of Utah without regard to its conflicts of law provisions. This Deed of Trust has been accepted by Beneficiary in the State of Utah. 25.5. Joint and Several Liability. All obligations of Trustor and Trustor under this Deed of Trust shall be joint and several, and all references to Trustor shall mean each and every Trustor, and all references to Trustor shall mean each and every Trustor. This means that each Trustor and Trustor signing below is responsible for all obligations in this Deed of Trust. Where anyone or more of the parties is a corporation, partnership, limited liability company or similar entity, it is not necessary for Beneficiary to inquire into the powers of any of the officers, directors, partners, members, or other agents acting or purporting to act on the entity's behalf, and any obligations made or created in reliance upon the professed exercise of such powers shall be guaranteed under this Deed of Trust. 25.6. No Waiver bv Beneficiary. Beneficiary shall not be deemed to have waived any rights under this Deed of Trust unless such waiver is given in writing and signed by Beneficiary. No delay or omission on the part of Beneficiary in exercising any right shall operate as a waiver of Beneficiary's right otherwise to demand strict compliance with that provision or any other provision of this Deed of Trust. No prior waiver by Beneficiary, nor any course of dealing between Beneficiary and Trustor, shall constitute a waiver of any of Beneficiary's rights or of any of Trustor's obligations as to any future transactions. Whenever the consent of Beneficiary is required under this Deed of Trust, the granting of such consent by Beneficiary in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Beneficiary. 25.7. Severability. If a court of competent jurisdiction finds any provision of this Deed of Trust to be illegal, invalid, or unenforceable as to any circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other circumstance. lffeasible, the offending provision shall be considered modified so that it becomes legal, valid and enforceable. If the offending provision cannot be so modified, it shall be considered deleted from this Deed of Trust. Unless otherwise required by law, the illegality, invalidity, or unenforceability of any provision of this Deed of Trust shall not affect the legality, validity or enforceability of any other provision of this Deed of Trust. 14 000066 25.8. Successors and AssÍlms. Subject to any limitations stated'in this Deed of Trust on transfer of Trustor's interest, this Deed of Trust shall be binding upon and inure to the benefit of the parties, their successors and assigns. If ownership of the Property becomes vested in a person other than Trustor, Beneficiary, without notice to Trustor, may deal with Trustor's successors with reference to this Deed of Trust and the indebtedness by way of forbearance or extension without releasing Trustor iTom the obligations of this Deed of Trust or liability under the indebtedness. 25.9. Time is of the Essence. Time is of the essence in the performance of this Deed of Trust. 26. Definitions. The following capitalized words and terms shall have the following meanings when used in this Deed of Trust. Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and tenns used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and tenns not otherwise defined in this Deed of Trust shall have the meanings attributed to such terms in the Unifonn Commercial Code: 26.1. Beneficiary. The word "Beneficiary" means the ROST CAPITAL, LLC and its successors and assigns. 26.2. Trustor. The word "Trustor" means Forest Grove Holdings, LLC, Debra C. Thoman, Manager and Debra C. Thoman individually. 26.3. Deed of Trust. The words "Deed of Trust" mean this Deed of Trust among Trustor, Beneficiary, and Trustee, and includes without limitation all assignment and security interest provisions relating to the Personal Property and Rents. . 26.4. Default. The word "Default" means the Default set forth in this Deed of Trust in the section titled "Default". 26.5. Environmental Laws. The words "Environmental Laws" mean any and all state, federal and local statutes, regulations and ordinances relating to the protection of human health or the environment, including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. C"CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C, Section 6901, et seq., or other applicable state or federal laws, rules, or regulations adopted pursua.nt thereto. 26.6. Event of Default. The words "Event of Default" mean any ofthe events of default set forth in this Deed of Trust in the events of default section of this Deed of Trust. 26.7. Guarantor. The word "Guarantor" means the guarantor, surety, or accommodation party, if any, of any or all of the Indebtedness. 26.8. Hazardous Substances. The words "Hazardous Substances" mean materials that, because of their quantity, concentration or physical, chemiCal or infectious characteristics, may cause or pose a present or potential hazard to human health or the environment when improperly used, treated, stored, disposed of, generated, manufactured, transported Or otherwise handled. The words "Hazardous Substances" are used in their very broadest sense and include without limitation any and all hazardous or toxic substances, materials or waste as defmed by or listed under the Environmental Laws. The term "Hazardous Substances" also includes, without limitation, petroleum and petroleum by-products or any iTaction thereof and asbestos. 26.9. Improvements. The word "Improvements" means all existing and future improvements, buildings, structures, mobile homes affixed on the Real Property, facilities, additions, replacements and other construction on the Real Property, 26.10. Indebtedness. The word "Indebtedness" means all principal, interest, and other amounts, costs and expenses payable under the Loan Agreement, the Deed of Trust or the Related Documents, together with 15 000067 all' renewals of, extensions of, modifications of, consolidations of and substitutions for the Loan Agreement, the Deed of Trust or the Related Documents and any amounts expended or advanced by Beneficiary to discharge Trustor's obligations or expenses incurred by Trustee or Beneficiary to enforce Trustor's obligations under this Deed of Trust, together with interest on such amounts as provided in this Deed of Trust. 26.11. Promissory Note. The term "Promissory Note" means the Promissory Note, dated as of May-, 2007, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of, and substitutions for the Promissory Note and the Related Documents. 26.12. Personal Property. The words "Personal Property" mean all equipment, fixtures, and other articles of personal property now or hereafter. owned by Trustor, and now or hereafter attached or affixed to the Real Property; together with all accessions, parts, and additions to, all replacements of, and all substitutions for, any of such property; and together with all proceeds (including without limitation all insurance proceeds and refunds of premiums) fi-om any sale or other disposition of the Property. 26.13. ProDerty. The word "Property" means collectively the Real Property and the Personal Property. 26.14. Real PropertY. The words "Real Property" mean the real property, interests and rights, as further described in this Deed of Trust. 26.15. Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness. . 26.16. Rents. The word "Rents" means all present and future rents, revenues, income, issues, royalties, profits, and other benefits derived fi-om the Property. 26.17. Trustee The word "Trustee" means John L. Valentine and any substitute or successor trustees, 26.18. Trustor. The word "Trustor" has the same meaning as "Trustor". TRUSTOR ACKNOWLEDqES HAVING READ ALL THE PROVISIONS OF THIS DEED OF TRUST, AND TRUSTOR AGREES TO ITS TERMS. TRUSTOR: Forest Grove Holdings, LLC, Debra C. Thoman, Manager and Debra C. Thoman individually BY:~U) C :Thu-vA-CLIV\ ' Forest Grove Holdings, LLC, Debra C. Thoman, Manager By: O---Ll~ e Th~ Debra C. Thoman individually ]6 ACKNOWLEDGMENT STATE OF UTAH COUNTY OF ~~\-t-~ ~ ) :ss. ) 000068 On this -1L.. day of , 2007, before me, the undersigned Notary Public, personalIy appeared Debra C. Thoma divi u lIy and known to me to be individual t~at executed the Deed of Trust and acknowledged the Deed of Trust to the free and voluntary act and deed of the individual, for the uses and purposes therein mentio n oath stated that he or she is authorized to execute this Deed of Trust and in fact ex ed the Deed 0 rust on behal the corporation. Residing at U\ . and for the State of Utah My commission expires ~ \~O\ ..~-:~.- -,- N~coiE( puÃsEri". l0:;~~~~\ NOTARY PUBLIC. STATE of (lTAI.. ; ,~{, ¡,~,\ 7430 S CREEK ROAD SUITE 303 i \~~~~.:~fi SANDY UT 54093 I ! ~ MY CQMMISSION EXPIRES: 06·14·200g , '1..", ~ d~~~1I::.c",*,.:;"o111 II! 1·,,,,,,--"'" 17