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HomeMy WebLinkAbout942293 1t When recorded mail to: Jordan Credit Union P.O. Box 1888 Sandy, UT 84091 RECEIVED 9/16/2008 at 2:33 PM RECEIVING # 942293 BOOK: 105 PAGE: 10 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY (:0\101.0 LEASEHOLD DEED OF TRUST TIllS LEASEHOLD DEED OF TRUST (this "Deed of Trust") is made as of the :J.. 4 day of August, 2008, by and among Goldenwood Homes, Inc., a Wyoming corporation, as grantor, whose address is PO Box 741, Thayne, WY 83121("Grantor"); Hickman Land Title Company, a Wyoming Title Compan, as trustee, whose address is 160 East Broadway, Jackson, WY 83000 ("Trustee"), and Jordan Federal Credit Union, a federal credit union, as beneficiary, whose address is 9260 S 300 E, Sandy, UT 84070 ("Beneficiary"). The property securing this Deed of Trust is described as: Hanger 24 of the APrON LINCOLN AIRPORT, being A part of the Southwest Quarter of the Southeast Quarter (SWl/4 SE 14) of Section 36, Township 32 North, Range 119 West, of the 6th P.M., Lincoln County, Wyoming. RECITALS TillS DEED OF TRUST is given to secure: A. The payment and performance of all obligations of Grantor under that certain note (the "Note") of even date herewith, executed and delivered by Grantor to Beneficiary in the original principal sum of Four Hundred Thousand Dollars ($400,000.00), wherein Grantor promises to pay to Beneficiary the sums specified therein, with interest thereon at the rates and times, in the manner and according to the terms and conditions specified in the Note; and B. The payment of all sums advanced by Beneficiary under or pursuant hereto, with interest thereon; and C. The payment and performance of the obligations and agreements of Grantor contained in the Lease between Grantor and Afton-Lincoln County Airport Joint Power Board. (All obligations described in Clauses A through C above are sometimes collectively referred to as the "Obligations. ") NOW, THEREFORE, with reference to the foregoing recitals, in reliance thereon and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantor hereby irrevocably grants, transfers, conveys and assigns to Trustee, in trust, for the 00001.1. benefit and security of Beneficiary, under and subject to the terms and conditions hereinafter set forth, that certain leasehold estate and all of Grantor's right, title and interest in, to and under that certain lease (the "Ground Lease") having an effective date of October 20,2003 between Afton- Lincoln County Airport Joint Power Board and Goldenwood Homes, Inc., which Ground Lease relates to a certain tract or parcel of land located in the County of Lincoln and State of Wyoming (the "Property") and more particularly described in Exhibit A attached hereto and made a part hereof; TOGETHER WITH: 1. any and all buildings and improvements now or hereafter erected thereon, including, but not limited to, any and all fixtures, attachments, appliances, equipment, machinery and other articles owned by Grantor and attached to said buildings and improvements (the "Improvements"); 2. all leasehold estate, right, title and interest of Grantor in and to all leases or subleases covering the Property, the Improvements or any portion thereof now or hereafter existing or entered into (collectively, the "Leases"), and all right, title and interest of Grantor thereunder, including, without limitation, all cash or security deposits, advance rentals and deposits or payments of similar nature; 3. all right, title and interest of Grantor in and to the Property or any portion thereof or interest therein, and any greater estate in the Property now owned or hereafter acquired by Grantor; 4. all rents, issues, profits, royalties, income and other benefits presently or in the future derived from any of the foregoing (collectively, the "Rents"), subject to the terms and provisions of the Assignment of Leases, and subject to the right, power and authority hereinafter given to Grantor to collect and apply such Rents; 5. all interests, estate or other claims, both in law and in equity, which Grantor now has or may hereafter acquire in the Property; 6. all easements, rights-of-way and rights used in connection therewith or as a means of access thereto, and all tenements, hereditaments and appurtenances thereof and thereto, and all water rights and shares of stock evidencing the same; 7. all right, title and interest of Grantor, now owned or hereafter acquired, in and to any land lying within the right-of-way of any street, open or proposed, adjoining the Property and any and all sidewalks, alleys and strips and gores of land adjacent to or used in connection with the Property; 8. all right, title and interest of Grantor in and to any and all tangible personal property owned by Grantor and now or at any time hereafter located on or at the Property or used Page 2 OOûOi2 in connection therewith (the "Personal Property"), including, but not limited to, all goods, machinery, tools, insurance proceeds, equipment (including fire sprinklers and alarm systems, office air conditioning, heating, refrigerating, electronic monitoring, entertainment, recreational, window or structural cleaning rigs, maintenance, exclusion of vennin or insects, removal of dust, refuse or garbage and all other equipment of every kind), lobby and all other indoor and outdoor furniture (including tables, chairs, planters, desks, sofas, shelves, lockers and cabinets) wall safes, furnishings, appliances (including refrigerators, fans, heaters, stoves, water heaters and incinerators), inventory, rugs, paintings, carpets and other floor coverings, draperies and drapery rods and brackets, awnings, window shades, venetian blinds, curtains, lamps, chandeliers and other lighting fixtures and office maintenance and other supplies; 9. and subject to the terms and conditions hereinafter set forth, all the estate, interest, right, title, other claim or demand, including claims or demands with respect to the proceeds of insurance in effect with respect thereto, which Grantor now has or may hereafter acquire in the Property, and any and all awards made for the taking by eminent domain or condemnation, or by any proceeding or purchase in lieu thereof, of the whole or any part of the Collateral, including without limitation, any awards resulting from a change of grade of streets and awards for severance damages; 10. any and all tradenames under which Grantor operates the Property or Improvements or under which the property or Improvements may be operated in the future; 11. the right in the name and on behalf of Grantor to appear and defend any action or proceeding with respect to the Collateral and to commence any action or proceeding to protect the interest of Beneficiary in the Collateral; and 12. all of Grantor's rights and remedies at any time arising under or pursuant to Section 365(h) of Title 11 of the United States Code entitled "Bankruptcy" as now or hereafter in effect or any successor thereto (the "Bankruptcy Code") including, without limitation, all of Grantor's rights to remain in possession of the Collateral thereunder. The entire estate, property and interest hereby conveyed to Trustee may be referred to herein as the "Collateral." TO HAVE AND TO HOLD as provided herein the above granted and described Collateral unto and to the proper use and benefit of Beneficiary, and the successors and assigns of Beneficiary, forever. TO PROTECT THE SECURITY OF THIS DEED OF TRUST, GRANTOR HEREBY COVENANTS AND AGREES AS FOLLOWS: Page 3 ARTICLE 1. 00001.3 COVENANTS AND AGREEMENTS OF GRANTOR 1.1 Payment and Performance of Obligations. Grantor sh~lll pay when due and without offset, counterclaim or defense all of the Obligations secured hereby. Grantor shall fully and faithfully observe and comply in all respects with the terms, provisions, conditions, covenants and agreements on the part of Grantor to be observed and performed under this Deed of Trust and the other Loan Documents. 1.2 Representations and Warranties. Grantor represents and warrants that: (a) it holds a valid leasehold interest in the Property pursuant to the Ground Lease, free and clear of any liens or encumbrances (except Permitted Encumbrances); (b) it has good and marketable fee simple title to the Improvements and good and marketable title to the Personal Property, in each case free and clear of any liens and encumbrances (except Permitted Encumbrances); (c) this Deed of Trust is a valid first lien upon the Collateral and that it has not created any lien other than the lien of this Deed of Trust on the Collateral (except Permitted Encumbrances); (d) Beneficiary shall quietly enjoy and possess the Collateral; and (e) there are no defenses or offsets to this Deed of Trust or to the Obligations which it secures. Grantor shall not, directly or indirectly, create or suffer to be cared, or to stand, any lien upon any portion of the Collateral (except Permitted Encumbrances). Grantor shall, subject to Permitted Encumbrances, preserve such title and the validity and priority of the lien hereof and shall forever warrant and defend the same to Beneficiary against the claims of all persons and parties whatsoever. 1.3 Maintenance, Repair, Alterations, Etc. 1.3.1 Grantor will: keep and maintain the Collateral in good condition and repair; complete promptly and in good and workmanlike manner any building or other improvement which may be constructed on the Property and promptly restore in like manner any Improvement which may be damaged or destroyed thereon, and promptly pay when due all claims for labor performed and materials furnished therefor; comply with all laws, ordinances, regulations, covenants, conditions and restrictions (collectively, "Law") nor or hereafter affecting the Collateral or any part thereof or requiring any alterations or improvements; not commit or permit any waste or deterioration of the Collateral; keep and maintain grounds, sidewalks, parking and landscape areas in good and neat order and repair; comply with the provisions of any Lease, easement or other agreement affecting all or any part of the Collateral; not commit, suffer or permit any act to be done in or upon the Collateral in violation of any Law; and not permit the Collateral or any part thereof to become deserted or unguarded. 1.3.2 Grantor shall have the right from time to time to make, at its sole cost and expense, changes and alterations in or to the Improvements, subject, however, to the following: 1.3.2.1 No change or alteration shall be undertaken without Beneficiary's prior written consent (x) if such change or alteration involves an estimated cost of $10,000.00 or Page 4 OOôOj.4 more, (y) if the aggregate of the estimated cost of the change or alteration in question and the cost (whether estimated or actual) of all other changes or alterations done or being done during the calendar month in question and the immediately preceding 11 calendar months equals or exceeds $50,000.00 or (z) once the aggregate of the estimated cost of the change or alteration in question and the cost (whether actual or estimated) of all other changes or alterations done or being done from and after the date hereof equals or exceeds $50,000.00; µrovided. however, that the cost of replacements of Personal Property being made by Grantor pursuant to Article 3 hereof shall not be included in any of the foregoing calculations; 1.3.2.2 No change or alteration shall be undertaken until Grantor shall have procured and paid for, so far as the same may be required from time to time, all permits and authorizations of all municipal departments and governmental subdivisions having jurisdiction; 1.3.2.3 Any change or alteration shall, when completed, be of such a character as not to change the use of the Improvements or reduce the economic value of the Collateral below its value immediately before such change or alteration; 1.3.2.4 Any change or alteration, once commenced, shall be made promptly and in a good and workmanlike manner and in compliance with all applicable permits and authorizations and building and zoning laws and with all other laws, ordinances, orders, rules, regulations and requirements of all federal, state and municipal governments, departments, commissions, boards and officers, any national or local Board of Fire Underwriters, or any other body hereafter exercising functions similar to those of any of the foregoing; 1.4 Required Insurance. Grantor will, at its expense, at all times provide, maintain and keep in force insurance satisfactory to Beneficiary. 1.5 Indemnification; Subrogation; Waiver of Offset. 1.5.1 If Beneficiary is made a party defendant to any litigation concerning this Deed of Trust or the Collateral or any part thereof or interest therein, or the occupancy thereof by Grantor or persons claiming through Grantor, then Grantor shall indemnify, defend and hold Beneficiary harmless from all liability by reason of said litigation, including attorneys' fees and expenses incurred by Beneficiary in any such litigation, whether or not any such litigation is prosecuted to judgment; provided. however, that nothing herein shall be deemed to require Grantor to indemnify, defend and hold harmless Beneficiary with respect to Beneficiary's gross negligence or willful misconduct. If Beneficiary commences an action against Grantor to enforce any of the tenns hereof or because of the breach by Grantor of any of the tenns hereof or for the recovery of any sum secured hereby, Grantor shall pay to Beneficiary attorneys' fees and expenses, and the right to such attorneys' fees and expenses shall be deemed to have accrued on the commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. If Grantor breaches any tenn of this Deed of Trust, Beneficiary may employ an attorney or attorneys to protect its rights hereunder, and, in the event of such employment following any breach by Grantor, Grantor shall pay Beneficiary reasonable Page 5 attorneys' fees and expenses incurred by Beneficiary, whether or not an action is actually commenced against Grantor by reason of such breach. 1.6 Taxes and Impositions. COô01.5 1.6.1 Grantor will pay, prior to delinquency, all real property taxes and assessments, general and special, and all other taxes and assessments of any kind or nature whatsoever, including, without limitation, nongovernmental levies or assessment such as maintenance charges, owner association dues or charges or fees, levies or charges resulting from covenants, conditions and restrictions affecting the Collateral, which are addressed or imposed upon any of the Collateral, or against Grantor or arising in respect of the occupancy, use or possession thereof, or upon any Personal Property, Equipment or facilities used in the operation or management thereof (all of which taxes, assessments and other governmental or nongovernmental charges of like or different nature are hereinafter referred to as "Impositions"); µrovided. however, that if, by law, any such Imposition is payable, or may at the option of the taxpayer be paid, in installments, Grantor may pay the same together with any accrued interest on the unpaid balance of such Imposition in installments as the same may become due and prior to the accrual of any interest or penalty thereon which does not relate to any discount for early payment. 1.7 Utilities. Grantor shall pay, not later than ten days after such payments became due, all utility charges which are incurred by Grantor for the benefit of the Collateral or which may become a charge or lien against the Collateral for gas, electricity, steam, water or sewer services furnished to the Collateral and all other assessments or charges of a similar nature, whether public or private, affecting the Collateral whether or not such taxes, assessments or charges are liens thereon. 1.8 Actions Affecting Collateral. Grantor will appear in and contest any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary hereunder; and Grantor will pay all costs and expenses, including cost of evidence of title and reasonable attorneys' fees, in any such action or proceeding in which Beneficiary may appear. 1.9 Actions by Beneficiary to Preserve Collateral. Should Grantor fail to payor perfonn any of the Obligations secured hereby, Beneficiary, in its own discretion, without obligation to do so and without notice to or demand upon Grantor and without releasing Grantor from any obligation, may payor perfonn the same in such manner and to such extent as it may deem necessary to protect the security hereof. In connection therewith, without limiting its general powers, Beneficiary shall have and is hereby given the right, but not the obligation: (a) to enter upon and take possession of the Collateral; (b) to make additions, alterations, repair and improvements to the Collateral which it may consider necessary or proper to keep the Collateral in good condition and repair; (c) to appear and participate in any action or proceeding affecting or which may affect the security hereof or the rights or powers of Beneficiary; (d) to pay, purchase, contest or compromise any encumbrance, claim, charge, lien or debt which in the judgment of Beneficiary mayor appears to affect the security of this Deed of Trust or be prior or Page 6 00601.6 superior hereto; and (e) in exercising such powers, to pay all necessary expenses, including the fees and expenses of counselor other necessary or desirable consultants. Grantor shall, immediately upon demand therefor by Beneficiary, payor reimburse all costs and expenses incurred by Beneficiary in connection with the exercise by Beneficiary of the foregoing rights, including, without limitation, cost of evidence of title, court costs, appraisals, surveys and reasonable attorneys' fees. If this Deed of Trust is placed in the hands of an attorney for the collection of any sum secured hereby, Grantor agree to pay on demand all costs of collection, including attorneys' fees, incurred by Beneficiary, either with or without the institution of any action or proceeding, and in addition to all costs, disbursements and allowances provided by law. All such costs so incurred shall be deemed to be secured by this Deed of Trust. 1.10 Survival of Warranties. All representations, warranties and covenants of Grantor contained herein or in any of the other Loan Documents or incorporated by reference herein or therein shall survive the execution and delivery hereof and thereof. 1.11 Eminent Domain. Should the Collateral, or any part thereof or interest therein, be taken or damaged by reason of any public improvements or condemnation proceeding or in any other similar manner ("Condemnation "), or should Grantor receive any notice or other information regarding such proceeding, Grantor shall give prompt written notice thereof to Beneficiary. 1.11.1 Except as otherwise specifically provided in the Ground Lease, in the event of a Condemnation of all or substantially all of the Collateral or, without regard to the portion of the Collateral subject to Condemnation, if an Event of Default shall have occurred and be continuing hereunder: 1.11.1.1 Beneficiary shall receive all compensation, awards and other payments or relief therefor made or granted for the benefit of Grantor and shall be entitled, at Beneficiary's option, to commence, appear in and prosecute in its own name any action or proceeding. All such compensation; awards, damages, rights of action and proceeds awarded to Grantor (the "Proceeds") shall be deemed assigned to Beneficiary, and Grantor agrees to execute such further assignments of the Proceeds as Beneficiary may require. 1.12 Additional Security. If Beneficiary at any time holds additional security for any of the Obligations secured hereby, it may enforce the sale thereof or otherwise realize upon the same, at its option, either before or concurrently herewith or after enforcing its remedies hereunder or under any of the other Loan Documents. 1.13 Successors and Assigns. This Deed of Trust applies to, inures to the benefit of and binds all parties hereto and their respective successors and assigns. If the ownership of the Collateral becomes vested in a person other than Grantor, Beneficiary may, without notice to Grantor, deal with such successor or successors in interest with reference to this Deed of Trust and the Obligations hereby secured in the same manner as with Grantor, and may alter the interest rate and/or alter or extend the terms of payment of any of the Obligations secured hereby Page 7 COô01.7 I without notice to Grantor and such action shall not in any way affect the liability of Grantor hereunder or under the Note or the other Loan Documents or the lien or priority of this Deed of Trust with respect to any part of the Collater~l covered hereby. 1.14 Appointment of Successor Trustee. Beneficiary may, from time to time, by a written instrument executed and acknowledged by Beneficiary, mailed to Grantor and recorded I in the county and state wherein the Property ~s located, and by otherwise complying with the provisions of the applicable law of the state therein the Property is located, substitute a successor or successors to Trustee named he~ein or acting hereunder. ; i 1.15 Liens. Grantor will pay and promptly discharge, at Grantor's cost and expense, all liens, encumbrances and charges (other th~n Permitted Encumbrances) upon the Collateral or any part thereof or interest therein within 30 days after the same are filed. If Grantor shall fail to discharge any such lien, encumbrance or charge within such 30 day period, then, in addition to any other right or remedy of Beneficiary, Beneficiary may, but shall not be obligated to, discharge the same, either by paying the amount claimed to be due, or by procuring the discharge of such lien by depositing in court a bond or the amount claimed or otherwise giving security for such claim, or in such manner as is or may be prescribed by law; and all funds advanced by Beneficiary to pay such obligations, liabilities, costs and expenses (together with interest thereon at the Default Rate) shall be reimbursed by Grantor upon demand by Beneficiary; and all such advances with inter~st thereon as aforesaid shall be secured by this Deed of Trust and the other Loan Documents. 1.16 Trustee's Powers. That Trustee may, at any time, or from time to time, without liability therefor and without notice, upon written request of Beneficiary and presentation of this Deed of Trust for endorsement, and without affecting the personal liability of any person for payment of the indebtedness secured hereby or the effect of this Deed of Trust upon the remainder of said Collateral: (a) reconvey any part of said Collateral, (b) consent in writing to the making of any map or plat thereof, (c) join in granting any easement thereon, or (d) join in any extension agreement or any agreement subordinating the lien or charge hereof. 1.17 Beneficiary's Powers. Without affecting the liability of any other person liable for the payment of any obligation herein mentioned, and without affecting the lien or charge of this Deed of Trust upon any portion of the Collateral not then or theretofore released as security for the full amount of all of the Obligations, Beneficiary may, from time to time and without notice: (a) release any person so liable; (b) extend the maturity or alter any of the tenns of any such obligation; (c) grant other indulgences; (d) release or reconvey or cause to be released or reconveyed at any time at Beneficiary's option any parcel, portion or all of the Collateral; (e) take or release any other or additional security for any obligation herein mentioned; (t) while an Event of Default is continuing, make compositions or other arrangements with debtors or other mortgagors in relation to this Deed of Trust; (g) advance additional funds to protect the security hereof if necessary while an Event of Default is continuing; or (h) while an Event of Default is continuing, payor discharge the Obligations of Grantor hereunder; and, in any case referred to in Page 8 OOôOj.B clauses (g) or (h), all amounts so advanced, with interest thereon at the Default Rate, shall be secured hereby. 1.18 Tradenames; Fictitious Name Registration. At the request of Beneficiary, Grantor shall execute a certificate in form satisfactory to Beneficiary listing the tradename under which Grantor intends to operate the Collateral, and representing and warranting that Grantor do business under 110 other tradenames with respect to the Collateral. Grantor shall immediately notify Beneficiary in writing of any change in said tradename, and will, upon request of Beneficiary, execute any additional UCC financing statements and other instruments revised to reflect the change in tradename. Grantor shall make all filings and take all other steps required in order to comply with applicable fictitious name statutes, and shall provide evidence of such compliance to Beneficiary. 1.19 Transfers and Encumbrances. Grantor shall not, without Beneficiary's prior written consent in each instance (i) transfer or otherwise dispose of legal or equitable title to the Collateral, or any portion thereof, (ii) transfer or otherwise dispose of any legal or beneficial interest in Grantor or permit any owner, directly or indirectly, of a beneficial interest in Grantor, to transfer such interest, directly or indirectly, whether by transfer of partnership interest, stock or other beneficial interest in any entity or otherwise, (iii) encumber or grant a security interest in the Collateral or any portion thereof, (iv) pledge, assign, encumber or grant a security interest in any direct or indirect legal or beneficial interest in Grantor, or (v) modify, amend or alter the composition, or form of business association of Grantor, or any owner, directly or indirectly, of a beneficial interest in Grantor. 1.20 Continued Occupancy. If at any time the then existing use or occupancy of any part of the Collateral shall, pursuant to any zoning or other law, ordinance or regulation, be permitted only so long as such use or occupancy shall continue, Grantor will not cause or permit such use or occupancy to be discontinued without the prior written consent of Beneficiary. 1.21 Inspections. Grantor hereby authorizes Beneficiary, its agents, representatives or workmen, to enter at any time upon or in any part of Collateral for the purpose of inspecting the same, and for the purpose of performing any of the acts it is authorized to perform under the terms of this Deed of Trust or any of the other Loan Documents. 1.22 Ground Lease. 1.22.1 Grantor shall not amend, modify, change or terminate the Ground Lease without the prior written consent of Beneficiary. Consent to one amendment, modification, change or agreement shall not be deemed to be a waiver or the right to require consent to other future or successive amendments, changes or modifications. Grantor shall perform all of its obligations and agreements under the Ground Lease (including, without limitation, the payment when due of all rents and other payments which it is required to pay thereunder) and shall not take any action (including, without limitation, rejecting the Ground Lease under the provisions of Section 365 of Title 11 of the United States Code) which would affect or permit the termination of the Ground Page 9 OOö01.9 Lease, without Beneficiary's prior written consent. Any such action taken without Beneficiary's prior written consent shall be void. Grantor agrees to promptly notify Beneficiary in writing with respect to any default or alleged default of any party to the Ground Lease and to deliver to Beneficiary copies of all notices, demands or complaints received by Grantor with respect to any default or alleged default thereunder and to perform any and all of Grantor's obligations thereunder. All sums expended by Beneficiary in curing any default of Grantor under the Ground Lease shall be secured hereby, shall bear interest from the date of expenditure to the date of recovery by Beneficiary at the Default Rate and shall be payable on demand. ARTICLE 2. ASSIGNMENT OF LEASES AND RENTS 2.1 Assignment of Leases and Rents. Grantor hereby assigns and transfers to Beneficiary all of the Leases and Rents of the Collateral, now or hereafter existing, and hereby gives to and confers upon Beneficiary the right, power and authority to collect such Rents. Grantor irrevocably appoints Beneficiary its true and lawful attorney-in-fact, at the option of Beneficiary at any time and from time to time, to demand, receive and enforce payment, to give receipts, releases and satisfactions and to sue, in the name of Grantor or Beneficiary, for all such Rents, and to apply such Rents to the Obligations secured hereby; provided. however, that absent the occurrence of an Event of Default hereunder, Grantor shall have the right to collect, use and enjoy such Rents, but not more than one (1) month in advance unless otherwise approved by Beneficiary. The assignment of the Leases and Rents of the Collateral in this Article 2 is intended to be an absolute assignment from Grantor to Beneficiary and not merely the passing of a security interest. The Leases and Rents are hereby assigned absolutely by Grantor to Beneficiary contingent only upon the occurrence of an Event of Default under this Deed of Trust. 2.2 Collection Upon Default. If an Event of Default occurs hereunder, Beneficiary may, at any time and from time to time without notice, either in person, by agent or by a receiver appointed by a court, and without regard to the adequacy of any security for the Obligations hereby secured, enter upon and take possession of the Collateral, or any part thereof, in its own name and sue for or otherwise collect such Rents, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including attorneys' fees, to the Obligations secured hereby in the manner set forth in Section 1.6.1.1. The collection of such Rents or the entering upon and taking possession of the Collateral or the application thereof as aforesaid, shall not, by itself, cure or waive any default or notice of default hereunder or invalidate any act done in response to such default or pursuant to such notice of default. 2.3 Assignment of Leases. Grantor agrees to assign and transfer to Beneficiary as additional security for the payment of the Obligations secured hereby all present and future Leases upon all or any part of the Collateral and further agrees to execute and deliver, at the request of Beneficiary, all such further assurances and assignments of Leases with respect to the Collateral as Beneficiary shall from time to time require. Page 10 OOó020 2.4 Covenants as to Leases. Grantor may execute as landlord Leases of the Collateral or any part thereof, subject to the following provisions: 2.4.1 Grantor shall perform all of the obligations on its part to be performed and enforce all of the obligations on the part of the tenants to be performed under all Leases; 2.4.2 Grantor shall deliver to Beneficiary a written summary ("Lease Summary") of the terms of each and every Major Lease (or amendment thereot) which it proposes to enter into, which summary shall set forth, in reasonable detail, the term of such Major Lease (or amendment thereot), the rental payable thereunder, the amount of space covered by the Major Lease (or amendment thereof), the proportion of operating costs and expenses and real property taxes chargeable to the tenant thereunder, a general description of the proposed work letter andlor the tenant improvements to be constructed in connection with such Major Lease (or amendment thereof) and, if requested by Beneficiary, the Lease Summary shall be accompanied by such financial data relating to the proposed tenant as Beneficiary may reasonably require; 2.4.3 Grantor shall not enter into any Major Lease, terminate any Major Lease or amend or otherwise modify any Major Lease, without first obtaining the prior written approval of Beneficiary in each instance. Beneficiary shall approve or reject any Major Lease (or amendment or termination thereof) within 15 Business Days after receipt by Beneficiary of written request for such approval (which request shall be accompanied by a copy of the Lease Summary or form of amendment in question along with financial data if requested by Beneficiary). Upon approval of the Lease Summary or form of amendment and financial data, if any, by Beneficiary, Grantor may thereafter execute a Major Lease or an amendment to a Major Lease so long as the provisions in such Major Lease or amendment relating to the rental payable thereunder, the term thereof, and the square footage of the demised premises shall not be more than 10% less, and the term thereof and the square footage of such demised premises shall not be more than 10% greater, than the amounts set forth in the Lease Summary or form of amendment previously provided to Beneficiary by Grantor; 2.4.4 Grantor may, without Beneficiary's prior written approval: 2.4.4.1 Enter into any Lease which is not a Major Lease, but any such Lease must be and remain at market rates (taking into account all economic terms of such Lease, including, without limitation, base rent, escalations, free rent periods, work allowances, etc.) and must otherwise contain terms and conditions reflecting arm's-length negotiations with the tenant under such Lease; and 2.4.4.2 Amend any Lease which is not a Major Lease, but any Lease as so amended must be and remain at then market rates (taking into account all economic terms of such amended Lease, including, without limitation, base rent, escalations, free rent periods, work allowances, etc.) and must otherwise contain terms and conditions reflecting arm's-length negotiations with the tenant under such Lease; Page 11 úOô021 2.4.5 Grantor shall deliver to Beneficiary, within 30 days after execution, a copy of any new Lease or amendment, whether or not Beneficiary's consent to any such lease is required; and 2.4.6 All Leases hereafter entered into by Grantor with respect to the Collateral or any part thereof shall be subordinate to the lien of this Deed of Trust unless expressly made superior to this Deed of Trust in the manner hereinafter provided. At any time or times Beneficiary may execute and record in county and state wherein the Property is located, a notice of subordination reciting that the Lease therein described shall be superior to the lien of this Deed of Trust. From and after the recordation of such notice of subordination, the Lease therein described shall be superior to the lien of this Deed of Trust and shall not be extinguished by any foreclosure sale hereunder. Notwithstanding anything to the contrary contained herein or in any Lease, in the event of any foreclosure sale hereunder, if any tenant under any existing or future Lease shall not then be in default in the payment of any rent or additional rent thereunder for which a proceeding is then pending brought by Grantor, as lessor under such Lease, such Lease will not be barred, tenninated, cut off or foreclosed nor will said tenant be named a defendant in such foreclosure action or proceeding nor will the rights and possession of said tenant thereunder be disturbed. 2.5 Application of Income Received by Beneficiary. Beneficiary shall have full power to use and apply the Rents to the payment of or on account of any or all of the following~ in such order as Beneficiary may detennine: 2.5.1 To the payment of the operating expenses of the Property and Improvements, including cost of management and leasing thereof (which shall include reasonable compensation to Beneficiary and its agent or agents, if management be delegated to an agent or agents, and shall also include lease commissions and other compensation and expenses of seeking and procuring tenants and entering into leases), established claims for damages, if any, and premiums on insurance hereinabove authorized; 2.5.2 To the payment of taxes and special assessments now due or which may hereafter become due on the Collateral; 2.6 To the payment of all repairs, decorations, renewals, replacements, alterations, additions, bettennents and improvements of the Collateral, including the cost from time to time of placing the Collateral in such condition as will, in the judgment of Beneficiary, make it readily rentable; and 2.6.1 To the payment of any of the Obligations secured hereby. Page 12 000022 ARTICLE 3. SECURITY AGREEMENT 3.1 Creation of Security Interest. Grantor hereby grants to Beneficiary a security interest in all of the Personal Property, the Accounts, all other personal property, now or hereafter owned by Grantor and located in, on or at the Property or the Improvements and the proceeds thereof, for the purpose of securing all Obligations of Grantor secured hereby. 3.2 Warranties, Representations and Covenants of Grantor. Grantor hereby warrants, represents and covenants as follows: 3.2.1 Except for the security interest granted hereby, (i) Grantor is, and as to all Personal Property and Accounts to be acquired after the date hereof will be, the sole owner of any Personal Property and Accounts, and (ii) Grantor is, and as to all Personal Property to be leased after the date hereof will be, the holder of valid leasehold interests in all personal property which is leases, in each case free from any lien, security interest, encumbrance or claims thereon of any kind whatsoever (other than Permitted Encumbrances). Grantor may lease or finance items of the Personal Property in the ordinary course of their business so long as such items are not building system components or otherwise necessary for the use or operation of the Improvements. Grantor will notify Beneficiary of, and will defend the Personal Property and Accounts against, all claims and demands of all persons at any time claiming the Personal Property, the Accounts or any interest therein other than such interests as are permitted herein. 3.2.2 Grantor will not assign, pledge, encumber, lease, sell, conveyor in any manner transfer any item of Personal Property, without the prior written consent of Beneficiary. 3.2.3 The Personal Property is not used or bought for personal, family or household purposes. 3.2.4 The Personal Property will be kept on or at the Property and Grantor will not remove any portion or item of Personal Property affixed or attached to the Property without the prior written consent of Beneficiary, except such portions or items of Personal Property which are consumed or worn out in ordinary usage or removed in the ordinary course of business, and promptly replaced by Grantor with new items of equal or greater quality. 3.2.5 Grantor maintains a place of business in the state wherein the Property is located and Grantor will immediately notify Beneficiary in writing of any change in its place of business. 3.2.6 At the request of Beneficiary, Grantor will join Beneficiary in executing one or more financing statements and renewals, continuation statements and amendments thereof pursuant to the Unifonn Commercial Code of the state wherein the Property is located in fonn satisfactory to Beneficiary, and will pay the cost of filing the same in all public offices wherever Page 13 COU023 filing is deemed by Beneficiary to be necessary or desirable. Without limiting the foregoing, Grantor hereby irrevocably appoints Beneficiary its attorney-in-fact to execute, deliver and file such instruments for or on behalf of Grantor, and Grantor will pay the cost of any such filing. 3.2.7 All covenants and obligations of Grantor contained herein relating to the Collateral shall be deemed to apply to the Personal Property and the Accounts whether or not expressly referred to herein. 3.2.8 This Deed of Trust constitutes a Security Agreement as that term is used in the Uniform Commercial Code of the state wherein the Property is located. 3.3 Financing Statements. Grantor shall cause all financing and continuation statements and other instruments with respect to the Personal Property and the Accounts at all times to be kept recorded, filed or registered in such manner and in such places as may be required by law fully to evidence, perfect and secure the interests of Beneficiary in the Personal Property and the Accounts, and shall pay all filing fees in connection therewith. Within 120 days after the end of each calendar year after the date hereof, Grantor shall furnish Beneficiary an opinion of independent counsel reasonably acceptable to Beneficiary stating either that all action required by law to fully evidence, perfect and secure the interest of Beneficiary in the Personal Property and the Accounts has been taken and reciting the details of such action or that no such action is necessary. 3.4 Multiple Remedies. Upon the occurrence of an Event of Default, Beneficiary, shall have the option of proceeding as to both real and personal property in accordance with its rights and remedies in respect of the real property as an alternative to proceeding in accordance with the default provisions of the Washington Uniform Commercial Code of the state where the Property is located. 3.5 Survival of Security Agreement. Notwithstanding any release of any or all of that property included in the Collateral, which is deemed "real property," any proceedings to foreclose this Deed of Trust or its satisfaction of record, 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. ARTICLE 4. REMEDIES UPON DEFAULT 4.1 Events of Default. The occurrence of any of the following events shall be deemed to be an Event of Default hereunder: 4.1.1 The failure of Grantor to pay any installment of principal or interest under the Note when due; or Page 14 0000·24 4.1.2 The OCCUITence of an Event of Default under and as defined in the Ground Lease; or 4.1.3 The OCCUITence of an Event of Default under and as defined in the Assignment of Leases; or 4.1.4 Grantor shall commence a voluntary case concerning it under the Bankruptcy Code or any similar law of any other jurisdictions; or 4.1.5 An involuntary case is commenced against Grantor under the Bankruptcy Code and relief is ordered against Grantor or the petition is controverted but is not dismissed within 60 days after the commencement of the case; or 4.1.6 A custodian (as defined in Bankruptcy Code) is appointed for, or takes charge of all or substantially all of the property or assets of Grantor; or 4.1.7 Grantor commences any other proceeding under any reorganizational, arrangement, readjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to Grantor, or there is commenced against Grantor any such proceeding which remains undismissed for a period of 60 days; or 4.1.8 Grantor is adjudicated insolvent or bankrupt; or 4.1.9 Grantor fails to controvert in a timely manner any such case under the Bankruptcy Code or any such proceeding, or any order for relief or other order approving any such case or proceeding is entered; or 4.1.10 Grantor by any act or failure to act, indicates it consent to, approval of, or acquiescence in any such case or proceeding or in the appointment of any custodian, or the like, for its or any substantial part of its property or assets, or suffers any such appointment to continue undischarged or un stayed for a period of 60 days; or 4.1.11 Grantor makes a general assignment for the benefit of creditors; or 4.1.12 Any action is taken by Grantor for the purpose of effecting anything described in clauses 4.1.4 through 4.1.11 above; or 4.1.13 A receiver or trustee or other officer or representative of a court or of creditors, or any court, governmental officer or agency, shall under color of legal authority, take and hold possession of any substantial part of the property or assets of Grantor for a period in excess of 60 days; or Page 15 û00025 4.1.14 Any representation or warranty made or deemed to be made herein or in any other Loan Document or in any document, statement or certificate delivered pursuant hereto, shall prove to have been incorrect in any material respect when made; or 4.1.15 If Grantor shall fail to perform any covenant contained in this Deed of Trust. 4.2 Acceleration Upon Default, Additional Remedies. Upon the occurrence of any Event of Default, Beneficiary may declare all of the Obligations secured hereby to be due and payable without any presentment, demand, protest or notice of any kind. Thereafter, Beneficiary may: 4.2.1 Either in person or by agent with or without bringing any action or proceedings, or by a receiver appointed by a court and without regard to the adequacy of its security, enter upon and take possession of the Collateral, or any part thereof, in its own name or in the name of trustee, and do or cause to be done any acts which it deems necessary or desirable to preserve the value, marketability or rentability of the Collateral, or any part thereof or interest therein, increase the income therefrom or protect the security hereof and, with or without taking possession of the Collateral, sue for or otherwise collect the Rents thereof, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including reasonable attorneys' fees, as Beneficiary may reasonably require. The entering upon and taking possession of the Collateral, the collection of such Rents and the application thereof as aforesaid, shall not, by itself, cure or waive any Event of Default or notice of default hereunder or invalidate any act done in response to such Event of Default or pursuant to such notice of default and, notwithstanding the continuance in possession of the Collateral or the collection, receipt and application of Rents, Beneficiary shall be entitled to exercise every right provided for herein or in any other Loan Document or by law upon the occurrence of any Event of Default including the right to exercise the power of sale set forth herein; 4.2.2 Commence and maintain one or more actions at law or in equity or by any other appropriate remedy (i) to protect and enforce Beneficiary's rights, whether for the specific performance of any covenant or agreement herein contained (which covenants and agreements each of Grantor agrees shall be specifically enforceable by injunctive or other appropriate equitable remedy), or (ii) to collect any sum then due hereunder, or (iii) to aid the execution of any power herein granted, or (iv) to foreclose this Deed of Trust, or (v) to sell the Collateral, without regard to whether or not any sum secured by this Deed of Trust is then due and payable and without prejudice to the right of any subsequent beneficiary thereafter to pursue and enforce any other appropriate remedy against Grantor, whether such remedy is provided for hereunder or by any applicable law for any Event of Default which may have occurred at the time at which any such earlier action was commenced; 4.2.3 Exercise any or all of the remedies available to a secured party under the Uniform Commercial Codes of the state wherein the Property is located, including, but notllimited to: Page 16 ÜOö026 4.2.3.1 Either personally or by means of a court appointed receiver, take possession of all or any of the Personal Property and exclude therefrom Grantor and all others claiming under Grantor, and thereafter hold, store, use, operate, manage, maintain and control, make repairs, replacements, alterations, additions and improvements to and exercise all rights and powers of Grantor with respect to the Personal Property or any part thereof. If Beneficiary demands or attempts to take possession of the Personal Property in the exercise of any rights under any Loan Document, Grantor promises and agrees to promptly turn over and deliver complete possession thereof to Beneficiary; 4.2.3.2 Without notice to or demand upon Grantor, make such payments and do such acts as Beneficiary may deem necessary to protect its security interest in the Personal Property, including, without limitation, paying, purchasing, contesting or compromising any encumbrance, charge or lien which is prior to or superior to the security interest granted hereunder, and, in exercising any such powers or authority, pay all expenses incurred in connection therewith; 4.2.3.3 Require Grantor to assemble the Personal Property or any portion thereof, at a place designated by Beneficiary and reasonably convenient to both parties, and promptly to deliver such Personal Property to Beneficiary, or an agent or representative designated by it. Beneficiary and its agents and representatives shall have the right to enter upon any or all of Grantor's premises and property to exercise Beneficiary's rights hereunder; 4.2.3.4 Sell, lease or otherwise dispose of the Personal Property at public sale, with or without having the Personal Property at the place of sale, and upon such terms and in such manner as Beneficiary may determine. Beneficiary may be a purchaser at any such sale. Unless the Personal Property is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Beneficiary shall give Grantor at least ten days' prior written notice of the time and place of any public sale of the Personal Property or other intended disposition thereof. Such notice may be mailed to Grantor at the address set forth in Section 5.6. 4.2.4 Deliver to Trustee a written declaration of default and demand for sale, and a written notice of default and election to cause Grantor's interest in the Collateral to be sold, which notice of Trustee or Beneficiary shall cause to be duly filed for record in the official records of the county wherein the Property is located. ARTICLE 5. MISCELLANEOUS 5.1 Definitions. As used in this Deed of Trust, the following terms have the following respective meanings: Page 17 ÜOû02? Business Day: Any day excluding saturday, Sunday and any day which shall be a legal holiday or a day on which banking institutions are authorized or required by law or other governmental actions to close. Cash Flow: For any period, the excess, if any, of Operating Income for such period over Operating Expenses for such period. Debt Service: At any time, the amount then estimated in good faith by Grantor (on a pro forma basis) as the amount it will need in any month to pay all interest and any other sums payable under the Note. Loan Documents: The Note, this Deed of Trust, the Assignment of Leases and all other documents evidencing or securing the Obligations. Major Lease: A lease for space in the Improvements which demises more than 5,000 rentable square feet of floor space, inclusive of options, and has a term of more than 2 years, inclusive of renewals. Operating Expenses: For any period, all expenses of Grantor incurred during such period in connection with the operation of the Property and the Improvements. Operating Income: For any period, all income earned by Grantor or any entity related to or affiliated with Grantor during such period in connection with the operation of the Property and the Improvements. Permitted Encumbrances: The liens and encumbrances described in Exhibit D attached hereto. Permitted Investments: Obligations of the United States Government or any agency thereof supported by the full faith and credit of the United States, corporate obligations rated AA or better, time and certificates of deposit of Beneficiary or banking corporations organized under, or branches of foreign branches licensed under, the law of the United States or any state thereof rated AA or better, repurchase obligations guaranteed by any of the foregoing and money market accounts of Beneficiary. Person: Any individual, corporation, partnership, joint venture, association, joint stock company, trust, or other enterprise or any government or any agency or political subdivision, department or instrumentality thereof. 5.2 Governing Law. This Deed of Trust and any action to enforce the provisions hereof or to foreclose the lien created hereby shall be governed by and construed in accordance with the laws of the state of Utah. In the event that any provision or clause of this Deed of Trust conflicts with applicable laws, such conflicts shall not affect other provisions of this Deed of Page 18 OOô028 Trust which can be given effect without the conflicting provision, and to this end the provisions of this Deed of Trust are declared to be severable. This Deed of Trust cannot be waived, changed, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of any waiver, change, discharge or termination is sought. Jurisdiction and venue of any action to enforce this Deed shall be appropriate in a Court of competent jurisdiction located in Salt Lake County, state of Utah. 5.3 Limitation of Interest. It is the intent of Grantor and Beneficiary in the execution of this Deed of Trust and all other instruments securing the Obligations to contract in strict compliance with the relevant usury laws. In furtherance thereof, Beneficiary and Grantor stipulate and agree that none of the terms and provisions contained in the Loan Documents shall ever be construed to create a contract for the use, forbearance or detention of money requiring payment of interest at a rate in excess of the maximum interest rate permitted to be charged by relevant law. Grantor or any guarantor, endorser or other party now or hereafter becoming liable for the payment of any of the Obligations shall never be liable for unearned interest thereon and shall never be required to pay interest at a rate in excess of the maximum interest that may be lawfully charged under relevant law and the provisions of this Section shall control over all other provisions of any instrument executed in connection herewith which may be in apparent conflict herewith. If it is determined that any holder of any of the Obligations has collected monies which are deemed to constitute interest and are deemed to increase the effective interest rate on the Obligations to a rate in excess of that permitted to be charged by relevant law, all such sums deemed to constitute interest in excess of such legal rate shall be retained by Beneficiary as additional cash collateral for the performance of the Obligations. 5.4 Statements by Grantor. Grantor, within ten days after being given notice by mail, will furnish to Beneficiary a written statement stating the unpaid amount of all obligations then owing under the Note or this Deed of Trust and stating whether any offset or defense exists against the payment of such amounts. 5.5 Reconveyance by Trustee. Upon written request of Beneficiary stating that all sums secured hereby have been paid, and upon surrender of this Deed of Trust to Trustee for cancellation and retention and upon payment by Grantor of Trustee's fees, Trustee shall reconvey to Grantor, or the person or persons legally entitled thereto, without watTanty, any portion of the Collateral then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The grantee in any reconveyance may be described as "the person or persons legally entitled thereto." 5.6 Notices. Whenever Grantor, Trustee or Beneficiary shall desire to give or serve any notice, demand, request or other communication with respect to this Deed of Trust, each such notice, demand, request or other communication shall be in writing and shall be effective only if the same is delivered by person service (including telex, telecopier, express or courier service) or mailed by first class mail, postage prepaid, addressed as follows: Page 19 If to Beneficiary: Jordan Federal Credit Union 9260 S 300 E Sandy, UT 84070 ú00029 If to Grantor: Goldenwood Homes PO Box 741 Thayne, WY 83127 The failure of any person to receive wires or notices as provided herein shall not affect the validity of the notice to the primary addressee. Any party may at any time change its address for such notices by delivering or mailing to the other parties hereto, as aforesaid, a notice of such change. Any notice so addressed and delivered by personal service, telecopy or telex shall be deemed to be given when delivered. Any notice so addressed and mailed by registered or certified mail, postage prepaid, return receipt requested, shall be deemed to be given when so mailed. 5.7 Captions. The captions or headings at the beginning of each Section hereof are for the convenience of the parties and are not a part of this Deed of Trust. 5.8 Invalidity of Certain Provisions. If the lien of this Deed of Trust is invalid or unenforceable as to any part of the Obligations secured hereby, or if the lien is invalid or unenforceable as to any part of the Collateral, the unsecured or partially secured portion of such obligation shall be completely paid prior to the payment of the remaining and secured or partially secured portion of the obligation, and all payments made on the obligation, whether voluntary or under foreclosure, power of sale or other enforcement action or procedure, shall be considered to have been first paid on and applied to the full payment of that portion of the obligation which is not secured or not fully secured by the lien of this Deed of Trust. If any provisions of this Deed of Trust shall be deemed void or unenforceable, it shall not affect the validity of the remaining provisions hereof which shall be considered severable. 5.9 Subrogation. To the extent Beneficiary advances any funds under this Deed of Trust to pay any outstanding prior lien, charge or encumbrance against the Collateral, such proceeds or advances have been or will be advanced by Beneficiary at Grantor's request and Beneficiary shall be subrogated to any and all rights and liens held by any owner or holder of such outstanding prior liens, charges and encumbrances, irrespective of whether said liens, charges or encumbrances are released. 5.10 No Merger. If both the lessors' and lessee's estates under the Ground Lease or any other Lease or any portion thereof which constitutes a part of the Collateral shall at any time become vested in one owner, this Deed of Trust and the lien created hereby shall not be destroyed or tenninated by application of the law of merger or as a matter of law or as a result of such foreclosure unless Beneficiary or any purchaser at any such foreclosure sale shall so elect. No act by or on behalf of Beneficiary or any such purchaser shall constitute a tennination of any Page 20 OOô03C Lease unless Beneficiary or such purchaser shall give written notice thereof to such tenant or subtenant. 5.11 Nonwaiver. Except as expressly provided to the contrary herein, acceptance by Beneficiary of any sum after the same is due shall not constitute a wavier of the right either to require prompt payment when due, of all other sums hereby secured or to declare an Event of Default as herein provided. The acceptance by Beneficiary of any sum in an amount less than the sum then due shall be deemed an acceptance on account only and upon condition that it shall not constitute a waiver of the obligation of Grantor to pay the entire sum then due, and Grantor's failure to pay said entire sum then due shall be and continue to be an Event of Default notwithstanding such acceptance of such amount on account, as aforesaid, and Beneficiary shall be at all times thereafter and until the entire sum then due shall have been paid, and notwithstanding the acceptance by Beneficiary thereafter of further sums on account, or otherwise, entitled to exercise all rights in this Deed of Trust conferred upon them, or either of them, upon the occurrence of an Event of Default and the right to proceed with a sale under any notice of default and election to sell shall in no way be impaired, whether any of such amounts are received prior or subsequent to such notice. Consent by Beneficiary to any transaction or action of Grantor which is subject to consent or approval of Beneficiary hereunder shall not be deemed a waiver of the right to require such consent or approval to future or successive transactions or actions. No failure by Beneficiary to insist upon the strict performance of any term hereof or to exercise any right, power or remedy consequent upon a breach thereof shall constitute a waiver of any such term or of any such breach. No wavier of any breach shall affect or alter this Deed of Trust, which shall continue in full force and effect, or the rights of Beneficiary with respect to any other then existing or subsequent breach. 5.12 Counterpart Execution. This Deed of Trust may be executed in any number of counterparts, each of which shall be an original and all of which shall be deemed to be one and the same instrument with the same effect as if all of the parties hereto had signed the same signature page. Any signature page of this Deed of Trust may be detached from any counterpart of this Deed of Trust identical in form hereto but having attached to it one or more additional signature pages. 5.13 Further Assurances. Grantor, at its own expense, will execute, acknowledge and deliver all such instruments and take all such action as Beneficiary from time to time may reasonably request for the better assuring to Beneficiary of the properties and rights now or hereafter subject to the lien hereof or intended so to be. 5.14 Additional Security. Without notice to or consent of Grantor and without impairment of the lien and rights created by this Deed of Trust, Beneficiary may accept (but Grantor shall not be obligated to furnish) from Grantor or from any other Person or Persons, additional security for the Obligations. Neither the giving of this Deed of Trust nor the acceptance of any such additional security shall prevent Beneficiary from restoring, first, to such additional security, and second, to the security created by this Deed of Trust without affecting Beneficiary's lien and rights under this Deed of Trust. Page 21 I I 000031- 5.15 Purchase Money Deed of Trust. This Deed of Trust constitutes a purchase money deed of trust. 5.16 Time Is of the Essence. Time is of the essence hereof with respect to all Obligations secured hereby. 5.17 Bankruptcy Provisions. 5.17.1 Grantor shall promptly after obtaining knowledge thereof notify Beneficiary by telecopy or telefax of any filing by or against the lessor under the Ground Lease of a petition under the Bankruptcy Code. Grantor shall thereafter forthwith give written notice of such filing to Beneficiary, setting forth any infonnation available to Grantor as to the date of such filing, the court in which such petition was filed, and the relief sought therein. Grantor shall promptly deliver to Beneficiary following receipt any and all notices, summonses, pleadings, applications and other documents received by Grantor in connection with any such petition and any proceedings relating thereto. 5.17.1 If Grantor seeks to offset against the rent reserved in the Ground Lease the amount of any damages caused by the nonperfonnance by the lessor of any of lessor's obligations under the Ground Lease after the rejection by lessor of the Ground Lease under the Bankruptcy Code, Grantor shall, prior to effecting such offset, notify Beneficiary shall have the right to object to all or any part of such offset, and, in the event of such objection, Grantor shall not effect any offset of the amounts so objected to by Beneficiary. If Beneficiary has failed to object as aforesaid within 15 Business Days after notice from Grantor in accordance with the first sentence of this subparagraph 5.17.2, Grantor may proceed to effect such offset in the amounts set forth in Grantor's notice. Neither Beneficiary's failure to object as aforesaid nor any objection or other communication between Beneficiary and Grantor relating to such offset shall constitute an approval of any such offset by Beneficiary. Grantor shall indemnify and save Beneficiary harmless from and against any and all claims, demands, aCtions, suits, proceedings, damages, losses, costs and expenses of every nature whatsoever (including, without limitation, attorneys' fees) arising from or relating to any offset by Grantor against the rent reserved in the Ground Lease. 5.17.3 If any action, proceeding, motion or notice shall be commenced or filed in respect of Grantor and/or the Ground Lease in connection with any case under the Bankruptcy Code, Beneficiary shall have the option, to the exclusion of Grantor, exercisable upon notice from Beneficiary to Grantor, to conduct and control any such litigation with counsel of Beneficiary's choice. Beneficiary may proceed in its own name or in the name of Grantor in connection with any such litigation, and Grantor agrees to execute any and all powers, authorizations, consents and other documents required by Beneficiary in connection therewith. Grantor shall, upon demand, pay to Beneficiary all costs and expenses (including attorneys' fees) paid or incurred by Beneficiary in connection with the prosecution or conduct of any such proceedings. Any such costs or expenses not paid by Grantor as aforesaid shall be secured by Page 22 00&032 the lien of this Deed of Trust and shall be added to the Obligations. Grantor shall not commence any action, suit, proceeding or case, or file any application or make any motion, in respect of the Ground Lease in any such case under the Bankruptcy Code without the prior written consent of Beneficiary~ 5.18 Nonagricultural Use. The Property which is the subject of this Deed of Trust is not used principally or primarily for agricultural or farming purposes. IN WITNESS WHEREOF, Grantor has caused this Deed of Trust to be duly executed and delivered as of the day and year first above written. ~;~ -=::>- c:::- _ GRANTOR: By ~","-r -P~T~te:.~€JV Its t-1ÞrWA G\~ State Of~~() County of 1..J. t'\~ The Foregoing instrument was acknowledged before me by ~thiS~aYOf~-r 20 0 g> Witness my hand and official seal. ==Þ~ð4~~ Notary Public JAMES ROBINSON NOTARY PUBLIC COUNTY OF . STATE OF LINCOLN WYOMING MVCOMMlSSION EXPIRES OCIOBER 19, 2011 My Commission Expires: COcA- lQ. 2011 Page 23 ATIACHMENTS: Exhibit A - Legal Description of Property Hanger 24 of the AFfON LINCOLN AIRPORT, being A part of the Southwest Quarter of the Southeast Quarter (SWl/4 SE l,4) of Section 36, Township 32 North, Range 119 West, of the 6th P.M., Lincoln County, Wyoming. Page 24 00&033