EXHIBIT 99.4
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DOCUMENT: TRUST DEED
GRANTOR: XXXXXX SNOWBOARDS, INC., an Oregon corporation
BENEFICIARY: XXXXXX X. XXXXXXX and XXXXX X. XXXXXXX, husband and wife
0000 XX Xxxx Xxxxx, Xxxxx 000X, Xxxx, XX 00000
TRUSTEE: XXXXXX X. XXXXXXX, Attorney At Law
AFTER RECORDING, PLEASE RETURN TO:
XXXXXX X. XXXXXXX
XX Xxx 000
Xxxxxx, XX 00000
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TRUST DEED
This Trust Deed is made on AUGUST 25, 1999, between XXXXXX SNOWBOARDS,
INC., an Oregon corporation, as Grantor, XXXXXX X. XXXXXXX, Attorney at Law, as
TRUSTEE, and XXXXXX X. XXXXXXX and XXXXX X. XXXXXXX, husband and wife, as
Beneficiary.
WITNESSETH:
Grantor irrevocably grants, bargains, sells and conveys to Trustee in
trust, with power of sale, the property in XXXXXX County, Oregon, described as
shown in Exhibit "A," attached hereto and by this reference made a part hereof,
together with all and singular the tenements, hereditaments and appurtenances
and all other rights thereunto belonging or in anywise now or hereafter
appertaining and the rents, issues and profits thereof and all fixtures now or
hereafter attached to or used in connection with said real estate.
This Trust Deed is given as security for the following: (a) the payment
of the Grantor's Promissory Note dated August 25, 1999 ("Promissory Note") in
the principal amount of Six Hundred Seventy Five Thousand and 00/100ths Dollars
($675,000.00) with interest thereon, the balance of which, if not sooner paid,
is due and payable on June 28, 2000; (b) all amendments, renewals, extensions,
and modifications of the Promissory Note; (c) performance of Grantor's
obligations under the Promissory Note and this Trust Deed; and (d) any amounts
expended or advanced by Beneficiary to discharge obligations of Grantor or
expenses incurred by Beneficiary or Trustee to enforce the obligations of
Grantor, as permitted under this Trust Deed, with interest thereon.
In the event the within-described property, or any part thereof, or any
interest therein is sold, agreed to be sold, conveyed, assigned or alienated by
the Grantor without first having obtained the written consent or approval of the
Beneficiary, which consent or approval should not be unreasonably withheld,
then, at the Beneficiary's option, all obligations secured by this instrument,
irrespective of the maturity dates expressed therein, or herein, shall become
immediately due and payable.
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TO PROTECT THE SECURITY OF THIS TRUST DEED, GRANTOR AGREES:
(1) To protect, preserve and maintain said property in good
condition and repair; not to remove or demolish any building or improvement
thereon; not to commit or permit any waste of said property;
(2) To complete or restore promptly and in good and workmanlike
manner any building or improvement which may be constructed, damaged or
destroyed thereon, and pay when due all costs incurred therefor;
(3) To comply with all laws, ordinances, regulations, covenants,
conditions and restrictions affecting said property; if the Beneficiary so
requests, to join in executing such financing statements pursuant to the Uniform
Commercial Code as the Beneficiary may require and to pay for filing same in the
proper public office or offices, as well as the cost of all lien searches made
by filing officers or searching agencies as may be deemed desirable by the
Beneficiary;
(4) To provide and continuously maintain insurance on the
buildings now or hereafter erected on the said premises against loss or damage
by fire and such other hazards as the Beneficiary may from time to time require,
in an amount no less than the full insurable replacement value of said
improvements written in companies acceptable to the Beneficiary, with loss
payable to the latter; all policies of insurance shall be delivered to the
Beneficiary as soon as insured; if the Grantor shall fail for any reason to
procure any such insurance and to deliver said policies to the Beneficiary at
least fifteen days prior to expiration of any policy of insurance now or
hereafter placed on said improvements, the Beneficiary may procure the same at
Grantor's expense. The amount collected under any fire or other insurance policy
may be applied by Beneficiary upon any indebtedness secured hereby and in such
order as Beneficiary may determine, or at the option of the Beneficiary, the
entire amount so collected, or any part thereof, may be released to Grantor.
Such application or release shall not cure or waive any default or notice of
default hereunder or invalidate any act done pursuant to such notice;
(5) To keep said premises free from construction liens and to pay
all taxes, except for 1998-1999 taxes, assessments and other charges that may be
levied or assessed upon or against said property before any part of such taxes,
assessments and other charges becomes past due or delinquent or in any manner
cause interest or penalties to be charged thereon and promptly deliver receipts
therefor to Beneficiary; failure in performance of the foregoing shall
constitute a default hereunder and under the promissory note secured hereby;
should the Grantor fail to make payment of any taxes, except for 1998-1999
taxes, assessments, insurance premiums, liens or other charges payable by
Grantor, either by direct payment or by providing Beneficiary with funds with
which to make such payment, Beneficiary may, at its option, make payment
thereof, and the amount so paid, with interest at the rate set forth in the note
secured hereby, together with the obligations described in paragraphs six and
seven of this Trust Deed, without waiver or any rights arising from breach of
any of the covenants hereof and for such payments, with interest as aforesaid,
the property hereinbefore described, as well as the Grantor, shall be bound to
the same extent that they are bound for the payment of the obligation herein
described, and all such payments shall be immediately due and payable without
notice, and the nonpayment thereof shall, at the option of the Beneficiary,
render all sums secured by this Trust Deed immediately due and payable and
constitute a breach of this Trust Deed;
(6) To pay and perform any encumbrance superior in priority to
this Trust Deed according to the terms of said superior encumbrance. The
Beneficiary hereunder shall have the right at its option to advance funds to
perform any act necessary to remedy any default with respect to a superior
encumbrance, adding any funds so advanced, together with reasonable costs
incurred as a result of any such default, to the balance due Beneficiary under
the Promissory Note and Trust Deed secured thereby.
(7) To pay all costs, fees and expenses of this trust including
the cost of title search as well as the other costs and expenses of the Trustee
incurred in connection with or in enforcing this obligation and the Trustee's
and attorney's fees actually incurred;
(8) To appear in and defend any action or proceeding purporting to
affect the security rights or powers of Beneficiary or Trustee; and in any suit,
action or proceeding in which the Beneficiary or Trustee may appear, including
any suit for the foreclosure of this Trust Deed, to pay all costs and expenses,
including evidence of title and the Beneficiary's or Trustee's attorney's fees;
the amount of attorney's fees mentioned in this paragraph seven in all cases
shall be fixed by the trial court and in the event of an appeal from any
judgment or decree of the trial court, Grantor further agrees to pay such sum as
the appellate court shall adjudge reasonable as the Beneficiary's or Trustee's
attorney's fees on such appeal.
IT IS MUTUALLY AGREED THAT:
(9) In the event that any portion or all of said property shall be
taken under the right of eminent domain or condemnation, Beneficiary shall have
the right, if it so elects, to require that all or any portion of the monies
payable as compensation for such taking, which are in excess of the amount
required to pay all reasonable costs, expenses and attorney's fees necessarily
paid or incurred by Grantor in such proceedings, shall be paid to Beneficiary
and applied first upon any reasonable costs and expenses and attorneys fees,
both in the trial and appellate courts, necessarily paid or incurred by
Beneficiary in such proceedings, and the balance applied upon the indebtedness
secured hereby; and Grantor agrees, at his own expense, to take such actions and
execute such instruments as shall be necessary in obtaining such compensation,
promptly upon Beneficiary's request;
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(10) At any time and from time to time upon written request of
Beneficiary, payment of its fees and presentation of this deed and the note for
endorsement (in the case of reconveyances, for cancellation), without affecting
the liability of any person for the payment of the indebtedness, Trustee may (a)
consent to the making of any map or plat of said property; (b) join in granting
any easement or creating any restriction thereon; (c) join in any subordination
or other agreement affecting this deed or the lien or charge thereof; (d)
reconvey, without warranty, all or any part of the property. The grantee in any
reconveyance may be described as the "person or persons legally entitled
thereto," and the recitals therein of any matters or facts shall be conclusive
proof of the truthfulness thereof. Trustee's fees for any of the services
mentioned in this paragraph shall be not less than five dollars;
(11) Upon any default by Grantor hereunder, Beneficiary may at any
time without notice, either in person, by agent or by a receiver to be appointed
by a court, and without regard to the adequacy of any security for the
indebtedness hereby secured, enter upon and take possession of said property or
any part thereof, in its own name xxx or otherwise collect the rents, issues and
profits, including those past due and unpaid, and apply the same, less costs and
expenses of operation and collection, including reasonable attorney's fees upon
any indebtedness secured hereby, and in such order as Beneficiary may determine;
(12) The entering upon and taking possession of said property, the
collection of such rents, issues and profits, or the proceeds of fire and other
insurance policies or compensation or awards for any taking or damage of the
property, and the application or release thereof as aforesaid, shall not cure or
waive any default or notice of default thereunder or invalidate any act done
pursuant to such notice;
(13) Upon default by Grantor in payment of any indebtedness secured
hereby or in his performance of any agreement hereunder, time being of the
essence with respect to such payment and/or performance, the Beneficiary may
declare all sums secured hereby immediately due and payable. In such an event
the Beneficiary at his election may proceed to foreclose this Trust Deed in
equity as a mortgage or direct the Trustee to foreclose this Trust Deed by
advertisement and sale, or may direct the Trustee to pursue any other right or
remedy, either at law or in equity, which the Beneficiary may have. In the event
the Beneficiary elects to foreclose by advertisement and sale, the Beneficiary
or the Trustee shall execute and cause to be recorded his written notice of
default and his election to sell the said described real property to satisfy the
obligation secured hereby whereupon the Trustee shall fix the time and place of
sale, give notice thereof as then required by law and proceed to foreclose this
Trust Deed in the manner provided in ORS 86.735 to 86.795;
(14) After the Trustee has commenced foreclosure by advertisement
and sale, and at any time prior to five days before the date the Trustee
conducts the sale, the Grantor or any other person so privileged by ORS 86.753,
may cure the default or defaults. If the default consists of a failure to pay,
when due, sums secured by the Trust Deed, the default may be cured by paying the
entire amount due at the time of the cure other than such portion as would not
then be due had the default not occurred. Any other default that is capable of
being cured may be cured by tendering the performance required under the
obligation or Trust Deed. In any case, in addition to curing the default or
defaults, the person effecting the cure shall pay to the Beneficiary all costs
and expenses actually incurred in enforcing the obligation of the Trust Deed
together with Trustee's and attorney's fees not exceeding the amounts provided
by law;
(15) Otherwise, the sale shall be held on the date and at the time
and place designated in the notice of sale or the time to which said sale may be
postponed as provided by law. The Trustee may sell said property either in one
parcel or in separate parcels and shall sell the parcel or parcels at auction to
the highest bidder for cash, payable at the time of sale. Trustee shall deliver
to the purchaser its deed in the form as required by law conveying the property
so sold, but without any covenant or warranty, express or implied. The recitals
in the deed of any matters of fact shall be conclusive proof of the truthfulness
thereof. Any person, excluding the Trustee, but including the Grantor and
Beneficiary, may purchase at the sale;
(16) When Trustee sells pursuant to the powers provided herein,
Trustee shall apply the proceeds of sale to payment of (1) the expenses of sale,
including the compensation of the Trustee and a reasonable charge by Trustee's
attorney, (2) to the obligation secured by the Trust Deed, (3) to all persons
having recorded liens subsequent to the interest of the Trustee in the Trust
Deed as their interest may appear in the order of their priority and (4) the
surplus, if any, to the Grantor or to his successor in interest entitled to such
surplus;
(17) Beneficiary may from time to time appoint a successor or
successors to any Trustee name herein or to any successor Trustee appointed
hereunder. Upon such appointment, and without conveyance to the successor
Trustee, the latter shall be vested with all title, powers and duties conferred
upon any trustee herein named or appointed hereunder. Each such appointment and
substitution shall be made by written instrument executed by Beneficiary, which,
when recorded in the mortgage records of the county or counties in which the
property is situated, shall be conclusive proof of proper appointment of the
successor Trustee;
(18) Trustee accepts this Trust Deed when this deed, duly executed
and acknowledged, is made a public record as provided by law. Trustee is not
obligated to notify any party hereto of pending sale under any other deed of
trust or of any action or proceeding in which Grantor, Beneficiary or Trustee
shall be a party unless such action or proceeding is brought by Trustee;
The Grantor warrants that the proceeds of the loan represented by the
above described Promissory Note and this Trust Deed are intended for business or
commercial purposes.
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This deed applies to, inures to the benefit of and binds all parties
hereto, their heirs, legatees, devisees, administrators, executors, personal
representatives, successors and assigns. The term Beneficiary shall mean the
holder and owner, including pledgee, of the contract secured hereby, whether or
not named as a Beneficiary herein. In construing this deed and whenever the
context so requires, the masculine gender includes the feminine and the neuter,
and the singular number includes the plural.
IN WITNESS WHEREOF, said Grantor has hereunto set its hand the day and
year first hereinabove written.
XXXXXX SNOWBOARDS, INC.
BY: /s/ XXXXX XXXXXX
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XXXXX XXXXXX, PRESIDENT
STATE OF OREGON )
) ss.
County of Xxxxxx )
This instrument was acknowledged before me on August 25, 1999, by
XXXXX XXXXXX as President of XXXXXX SNOWBOARDS, INC., an Oregon corporation.
/s/ XXXXX XXX XXXXX
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Notary Public for Oregon
My Commission Expires: JULY 10, 2002
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REQUEST FOR FULL RECONVEYANCE
To Xxxxxx X. Xxxxxxx, Trustee:
The undersigned is the legal owner and holder of all indebtedness
secured by the foregoing Trust Deed. All sums secured by said Trust Deed have
been fully paid and satisfied. You are hereby directed, on payment to you of any
sums owing to you under the terms of said Trust Deed pursuant to statute, to
cancel all evidences of indebtedness secured by said Trust Deed, which are
delivered to you herewith together with said Trust Deed, and to reconvey,
without warranty, to the parties designated by the terms of said Trust Deed the
estate now held by you under the same. Mail reconveyance documents to Grantor
__________ at __________________________________ DATED:________________________.
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Beneficiary Beneficiary
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EXHIBIT "A"
See Exhibit "A" attached hereto and by this reference incorporated herein.
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EXHIBIT "A"
Xxx 00, XXXXXX XXXX XXXXXX, Xxxxxx Xxxxxx, Xxxxxx.
ALSO: Beginning at a point on the West line of the right of way of the Southern
Pacific Co. at a point which is 309 feet South and South 89E 23' East 297.5 feet
from the Northwest corner of Lot 9 of the original plat of GARDEN HOME TRACT,
Xxxxxx County, Oregon; and running thence North 89E 23' West 297.5 feet to the
West line of said Xxx 0 xxx xxx xxxxxx xx Xxxxxxx Xxxx; thence Southerly along
the West line of said Lot 9 a distance of 227.58 feet, more or less, to the
Southwest corner of said Lot 9; thence South 89E 30' East along the Southerly
boundary of said Lot 9, a distance of 375 feet, more or less, to the Westerly
boundary of said railroad right of way; thence Northwesterly along the Westerly
boundary of said right of way to the place of beginning.
SAVE AND EXCEPT that part of Lot 11 lying within the right of way of the
Southern Pacific Co.
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