[LOGO]
Escrow No. 47346
ALL-INCLUSIVE TRUST DEED
WITH ASSIGNMENT OF RENTS
THIS TRUST DEED, MADE THIS MARCH 7, 1997 BETWEEN,
RISING TIDE, LTD, A LIMITED PARTNERSHIP, TRUSTOR,
of: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FIRST AMERICAN TITLE COMPANY OF UTAH, a Utah Corporation, as Trustee, and
EAST BAY LODGING ASSOCIATES, LTD, a Utah Limited Partnership, Beneficiary,
of: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
WITNESSETH: THAT TRUSTOR HEREBY CONVEYS AND WARRANTS TO TRUSTEE IN
TRUST, WITH POWER OF SALE, the following described property situated in Utah
County, Utah:
Parcel ▇, ▇▇▇▇ "▇", ▇▇▇▇ ▇▇▇, PLANNED UNIT DEVELOPMENT, Provo, Utah, as the
same is identified in the recorded Survey Map in Utah, County, Utah, as Entry
No. 3689, and Map Filing No. 3728-43, (as said record of Survey Map may have
heretofore been amended of supplemented) and in the Declaration of Easements,
Covenants, Conditions and Restrictions, recorded in Utah County, Utah, as
Entry No 3690, in Book 2576, at Page 900 (as said Declaration may have
heretofore been amended or supplemented).
TOGETHER WITH the Pertinent easements over and rights of use and enjoyment of
said Project's Common Areas as established in the above mentioned Declaration
of Easements, Covenants, Conditions and Restrictions. TAX ID #38-104-2
Together with all buildings, fixtures and improvements thereon and all
water rights, rights of way, easements, rents, issues, profits, income,
tenements, hereditaments, privileges and appurtenances thereunto belonging,
now or hereafter used or enjoyed with said property, or any part thereof,
SUBJECT, HOWEVER, to the right, power and authority hereinafter given to and
conferred upon Beneficiary to collect and apply such rents, issues, and
profits;
FOR THE PURPOSE OF SECURING (1) payment of the indebtedness evidenced by
an All-Inclusive Promissory Note of even date herewith, in the principal sum
of $2,893,804.69, made by Trustor, payable to the order of Beneficiary at
the times, in the manner and with interest as therein set forth, and any
extensions and/or renewals or modifications thereof; (2) the performance of
each agreement of Trustor herein contained; (3) the payment of such
additional loans or advances a hereafter may be made to Trustor, or
his/her/its successors or assigns, when evidenced by a promissory note or
notes reciting that they are secured by this Trust Deed; and (4) the payment
of all sums expended or advanced by Beneficiary under or pursuant to the terms
hereof, together with interest thereon as herein provided.
This instrument is an All-Inclusive Trust Deed subject and subordinate to the
following instruments (hereinafter Senior Encumbrances");
This conveyance is made and accepted subject to a Deed of Trust in favor of
Bank of Utah, recorded May 19, 1992 as Entry No. 24196 in Book 2936 at Page
576 of Official Records, having an unpaid principal balance of $791,163.06
as of March 18, 1997 which Deed of Trust, and the debt secured thereby, the
grantee(s) herein, hereby assumes and agrees to pay.
1
This conveyance is made and accepted subject to a Deed of Trust in favor
of Greater Salt Lake Business District, recorded September 30, 1992 as Entry
No. 51803 in Book 3011 at Page 74 of Official Records, and subsequently
assigned The Small Business Administration, by that certain Assignment
recorded September 30, 1992 as Entry No. 51804 in Book 3011 at Page 81 of
Official Records, having an unpaid principal balance of $787,935.93 as of
March 1, 1997 which Deed of Trust, and the debt secured thereby, the
grantee(s) herein, hereby assumes and agrees to pay.
The grantor(s) herein assign to the grantee(s) all rights, title and interest
to any reserve account held with said Deed of Trust herein assumed, for the
payment of insurance.
The Promissory Note(s) secured by said Trust Deed(s) is (are) hereinafter
referred to as the "Senior Note(s)". Nothing in this Trust Deed, the Note, or
any deed in connection herewith shall be deemed to be an assumption by the
Trustor of the Senior Notes or Senior Encumbrances.
TO PROTECT THE SECURITY OF THIS TRUST DEED, TRUSTOR AGREES:
1. To keep said property in good condition and repair; not to remove or
demolish any building thereon; to complete or restore promptly and in good and
workmanlike manner any building which may be constructed, damaged or
destroyed thereon; to comply with all laws, covenants and restrictions
affecting said property; not to commit or permit waste thereof; not to
commit, suffer or permit any act upon said property in violation of law; to
do all other acts which from the character or use of said property may be
reasonably necessary, the specific enumerations herein not excluding the
general; and if the loan secured hereby or any part thereof is being obtained
for the purpose of financing construction of improvements on said property,
Trustor further AGREES:
(a) To commence construction promptly and to pursue same with
reasonable diligence to completion in accordance with plans and
specifications satisfactory to Beneficiary, and
(b) To allow Beneficiary to inspect said property at all times during
construction.
Trustee, upon presentation to it of an affidavit signed by Beneficiary,
setting forth facts showing a default by Trustor under this paragraph, is
authorized to accept as true and conclusive all facts and statements therein,
and to act thereon hereunder.
2. To provide and maintain insurance, of such type or types and amounts
as Beneficiary may require, on the improvements now existing or hereafter
erected or placed on said property. Such insurance shall be carried in
companies approved by Beneficiary with loss payable clauses in favor of and
in form acceptable to Beneficiary. In event of loss, Trustor shall give
immediate notice to Beneficiary, who may make proof of loss, and each
insurance company concerned is hereby authorized and directed to make payment
for such loss directly to Beneficiary instead of to Trustor and Beneficiary
jointly, and the insurance proceeds, or any part thereof, may be applied by
Beneficiary, at his/her/its option, to reduction of the indebtedness hereby
secured or to the restoration of repair of the property damaged.
3. To deliver to, pay for and maintain with Beneficiary until the
indebtedness secured hereby is paid in full, such evidence of title as
Beneficiary may require, including abstracts of title or policies of title
insurance and any extensions or renewals thereof or supplements thereto.
4. To appear in and defend any action or proceeding purporting to affect
the security hereof, the title to said property, or the rights or powers of
Beneficiary or Trustee; and should Beneficiary or Trustee elect to also
appear in or defend any such action or proceeding, to pay all costs and
expenses, including cost of evidence of title and attorney's fees in a
reasonable sum incurred by Beneficiary or Trustee.
5. To pay all taxes, insurance and assessments of every kind or nature
as and when required by the Holders of Senior Encumbrances or when otherwise
due in absence of any requirements under the Senior Encumbrances.
6. Should fail to make any payment or to do any act as herein provided,
then Beneficiary or Trustee, but without obligation to do so and without
notice to or demand upon Trustor and without releasing Trustor from any
obligation hereof, may: Make or do the same in such manner and to such extent
as either may deem necessary to protect the security hereof, Beneficiary or
Trustee being authorized to enter upon said property for such purposes;
commence, appear in and defend any action or proceeding purporting
to affect the security hereof or the rights or powers of Beneficiary or
Trustee; pay, purchase, contest or compromise any encumbrance, charge or lien
which in the judgment of either appears to be prior or superior hereto; and
in exercising any such powers, incur any liability, expend whatever amounts
in its absolute discretion it may deem necessary therefor, including costs of
evidence of title, employ counsel, and pay reasonable fees.
7. To pay immediately and without demand all sums expended hereunder by
Beneficiary or Trustee, with interest from date of expenditure at the rate
borne by the principal balance under the note until paid, and the repayment
thereof shall be secured hereby.
IT IS MUTUALLY AGREED THAT:
8. Should said property or any part thereof be taken or damaged by
reason of any public improvement or condemnation proceeding, or damaged by
fire, or earthquake, or in any other manner, Beneficiary shall be entitled to
all compensation, awards, and other payments or relief therefor, and shall be
entitled at its option to commence, appear in and prosecute in its own name,
any action or proceedings, or to make any compromise or settlement, in
connection with such taking or damage. All such compensation, awards,
damages, rights or action and proceeds, including the proceeds of any
policies of fire and other insurance affecting said property, are hereby
assigned to Beneficiary, who may, after deducting therefrom all its expenses,
including attorney's fees, apply the same on any indebtedness secured hereby.
Trustor agrees to execute such further assignments of any compensation,
award, damages, and rights of action and proceeds as Beneficiary or Trustee
may require.
9. At any time and from time to time upon written request of
Beneficiary, payment of its fees and presentation of this Trust Deed and the
note of endorsement (in case of full reconveyance for cancellation and
retention), without affecting the liability of any persons for the payment of
the indebtedness secured hereby, Trustee may (a) consent to the making of
any map or plat of said property; (b) join in granting any easement or
creating any [illegible...]
2
[...ILLEGIBLE] thereof; (d) reconvey, without warranty, all or any part of
said property. The grantee in any reconveyance may be described as "the
person or persons entitled thereto," and the recitals therein of any matters
or facts shall be conclusive proof of the truthfulness thereof. Trustor
agrees to pay reasonable Trustee fees for any of the services mentioned in
this paragraph.
10. As additional security, Trustors hereby assign to Beneficiary,
during the continuance of these trusts, all rents, issues, royalties, and
profits of the property affected by this Trust Deed and of any personal
property located thereon. Until Trustor shall default in the payment of any
indebtedness secured hereby or in the performance of any agreement
hereunder, Trustor shall have the right to collect all such rents, issues,
royalties, and profits earned prior to default as they become due and
payable. If Trustor shall default as aforesaid, Trustors' right to collect
any of such moneys shall cease and Beneficiary shall have the right, with or
without taking possession of the property affected hereby, to collect all
rents, royalties, issues, and profits. Failure or discontinuance of
Beneficiary at any time or from time to time to collect any such moneys shall
not in any manner affect the subsequent enforcement by Beneficiary of the
right, power, and authority to collect the same. Nothing contained herein,
nor the exercise of the right by Beneficiary to collect, shall be, or be
construed to be, an affirmation by Beneficiary of any tenancy, lease or
option, nor an assumption of liability under, nor a subordination of the lien
or charge of this Trust Deed to any such tenancy, lease or option.
11. Upon any default by Trustor hereunder, Beneficiary may at any time
without notice, either in person, by agent, or by a receiver to be appointed
by a court (Trustor hereby consenting to the appointment of Beneficiary as
such receiver), 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 ▇▇▇ for or otherwise collect said rents,
issues and profits, including those past due and unpaid, and apply the same,
less costs and expensed of operation and collection, including reasonable
attorney's fees, upon any indebtedness secured thereby, 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 said property, and the application or release thereof as aforesaid, shall
not cure or waive any default or notice of default hereunder or invalidate
any act done pursuant to such notice.
13. The failure on the part of Beneficiary to promptly enforce any right
hereunder shall not operate as a waiver of such right and the waiver by
Beneficiary of any default shall not constitute a waiver of any other or
subsequent default.
14. Time is of the essence hereof. Upon default by Trustor in the
payment of any indebtedness secured hereby or in the performance of any
agreement hereunder, all sums secured hereby shall immediately become due and
payable at the option of Beneficiary. In the event of such default,
Beneficiary may execute or cause Trustee to execute a written notice of
default and of election to cause said property to be sold to satisfy the
obligations hereof, and Trustee shall file such notice for record in each
county wherein said property or some part of parcel thereof is situated.
Beneficiary shall deposit with Trustee, the note and all documents evidencing
expenditures secured hereby.
15. After the lapse of such time as may then be required by law
following the recordation of said notice of default, and notice of default
and notice of sale having been given as then required by law, Trustee,
without demand on Beneficiary, shall sell said property on the date and at
the time and place designated in said notice of sale, either as a whole or in
separate parcels, and in such order as it may determine (but subject to any
statutory right of Trustor to direct the order in which property, if
consisting of several known lots or parcels, shall be sold), at public
auction to the highest bidder, the purchase price payable in lawful money of
the United States, at the time of sale. The person conducting the sale may,
for any cause he deems expedient, postpone the sale from time to time until
it shall be completed and, in every case, notice of postponement shall be
given by public declaration thereof by such person at the time and place last
appointed for the sale; provided, if the sale is postponed for longer than
one day beyond the day designated in the notice of sale, notice thereof shall
be given in the same manner as the original notice of sale. Trustee shall
execute and deliver to the purchaser its Deed conveying said property so
sold, but without any covenant or warranty, express or implied. The recitals
in the Deed of any matters or facts shall be conclusive proof of the
trustfulness thereof. Any person including Beneficiary, may bid at the same.
Trustee shall apply the proceeds of sale to payment of (1) the costs and
expenses of exercising the power of sale and of the sale, including the
evidence of title procured in connection with such sale; (2) all sums
expended under the terms hereof, not then repaid, with accrued interest at
the rate borne by the principal balance under the note from date of
expenditure; (3) all other sums then secured hereby; and (4) the remainder,
if any, to the person or persons legally entitled thereto, or the Trustee, in
its discretion, may deposit the balance of such proceeds with the county
Clerk of the county in which the sale took place.
16. Upon the occurrence of any default hereunder, Beneficiary shall
have the option to declare all sums secured hereby immediately due and
payable and foreclose this Trust Deed in the manner provided by law for the
foreclosure of mortgages on real property and Beneficiary shall be entitled
to recover in such proceedings all costs and expenses incidental thereto,
including a reasonable attorney's fee in such amount as shall be fixed by the
court.
17. Beneficiary may appoint a successor Trustee at any time by filing
for record in the office of the County Recorder of each county in which said
property or some part hereof is situated, a substitution of Trustee. From the
time the substitution is filed for record, the new Trustee shall succeed to
all the powers, duties, authority and title of the Trustee named herein or of
any successor Trustee. Each such substitution shall be executed and
acknowledged, and notice thereof shall be given and proof thereof made, in the
manner provided by law.
18. This Trust Deed shall apply to, inure to the benefits of, and bind
all parties hereto, their heirs, legatees, devisees, administrators,
executors, successors and assigns. All obligations of Trustor hereunder are
joint and several. The term "Beneficiary" shall mean the owner and holder,
including any pledgee, of the note secured hereby. In this Trust Deed,
whenever the context so requires, the masculine gender includes the feminine
and/or neuter, and the singular includes the plural.
19. Trustee accepts this Trust when this Trust 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 Trust
Deed or of any action or proceeding in which Trustor, Beneficiary, or Trustee
shall be a party unless brought by Trustee.
20. This Trust Deed shall be construed according to the laws of the State
of Utah.
21. The undersigned Trustors request that a copy of any notice of
default and of any notice of sale hereunder be mailed to him at the address
hereinbefore set forth.
3
WITNESS the hands of said Grantor this March 7, 1997.
RISING TIDE, LTD
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇, GENERAL PARTNER
State of Utah )
)ss.
County of Utah )
On the MARCH 7, 1997 personally appeared before me ▇▇▇▇ ▇. ▇▇▇▇, who
being by me duly sworn did say, for himself/herself, that he/she, the said
▇▇▇▇ ▇. ▇▇▇▇ is the General Partner of RISING TIDE, LTD, A LIMITED
PARTNERSHIP, and that the within and foregoing instrument was signed in behalf
of said partnership by authority of its partnership agreement and said ▇▇▇▇
▇. ▇▇▇▇ duly acknowledged to me that said partnership executed the same.
-----------------------------------
Notary Public
4
