RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
FOOTHILL CAPITAL CORPORATION
2450 Colorado Avenue
Suite 3000
Santa Monica, California 90404
Attn: Business Finance
Division Manager
THIS INSTRUMENT IS ALSO TO BE INCLUDED IN THE INDEX OF
FINANCING STATEMENTS AS A FIXTURE FILING IN ACCORDANCE
WITH THE UNIFORM COMMERCIAL CODE AND CROSS-INDEXED IN THE
REAL ESTATE MORTGAGE RECORDS
THIS DOCUMENT SECURES OBLIGATIONS WHICH CONTAIN
PROVISIONS FOR A VARIABLE RATE OF INTEREST
STATE OF UTAH )
) ss.
COUNTY OF SALT LAKE )
LEASEHOLD DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT and
FIXTURE FILING made as of this 14th day of December, 2000, between EVANS &
SUTHERLAND COMPUTER CORPORATION, a Utah corporation ("Grantor"), with its chief
executive office located at 600 Komas Drive, Salt Lake City, Utah 84108, as
grantor, and CHICAGO TITLE INSURANCE COMPANY, as trustee ("Trustee") and
FOOTHILL CAPITAL CORPORATION, a California corporation, having an office at 2450
Colorado Avenue, Suite 3000 West, Santa Monica, California 90404, Attn: Business
Finance Division Manager.
WITNESSETH
THIS LEASEHOLD DEED OF TRUST CONSTITUTES A FIXTURE FILING UNDER SECTIONS
9-313 AND 9-402 OF THE UNIFORM COMMERCIAL CODE OF THE STATE OF UTAH. TO THE
EXTENT THE GOODS ARE FIXTURES UNDER THE LAWS OF THE STATE OF UTAH, THE FIXTURES
ARE OR ARE TO BECOME FIXTURES ON THE REAL PROPERTY LOCATED IN THE COUNTY OF SALT
LAKE, STATE OF UTAH, MORE PARTICULARLY DESCRIBED ON EXHIBIT A ATTACHED HERETO,
COMMONLY KNOWN BY THE STREET ADDRESS: 580 ARAPPEN DRIVE, SALT LAKE CITY. THE
NAME OF THE RECORD OWNER OF THE REAL PROPERTY IS UNIVERSITY OF UTAH.
1
FOR THE PURPOSE OF SECURING (a) the performance of all obligations and the
payment of all indebtedness to be paid in accordance with the terms and with
interest as set forth in that certain Loan and Security Agreement (hereinafter
referred to as the "Loan Agreement"), of even date herewith, entered into
between Grantor and Foothill Capital Corporation (Foothill Capital Corporation
and any subsequent lender pursuant to the Loan Agreement being hereinafter
referred to as "Beneficiary") and all modifications, extensions, renewals, or
amendments and restatements thereof: should Foothill Capital Corporation and
others enter into an amended and restated loan and security agreement, then the
agent thereunder shall be the Beneficiary hereunder, (b) the payment and
performance of all indebtedness and obligations of Grantor arising under this
Deed of Trust and other documents executed by Grantor in connection herewith,
and (c) payment of any money advanced by Beneficiary (and other lenders, if any)
to Grantor, or its successors, with interest thereon, evidenced by a note or
notes (indicating that they are so secured), executed by Grantor or its
successors, Grantor has granted, mortgaged, bargained, sold, alienated,
enfeoffed, released, conveyed and confirmed, and by these presents does grant,
mortgage, bargain, sell, alienate, enfeoff, release, convey and confirm unto the
Trustee, in trust, WITH POWER OF SALE, all its estate, right, title and interest
in, to and under any and all of the property located in the City of Salt Lake
City, County of Salt Lake, State of Utah, and more particularly described in
Exhibit A attached hereto and made a part hereof, including all easements,
rights, privileges, tenements, hereditaments and appurtenances thereunto
belonging or in anywise appertaining, and all of the estate, right, title,
interest, claim, demand, reversion or remainder whatsoever of Grantor therein or
thereto, either at law or in equity, in possession or expectancy, now or
hereafter acquired, including, without limitation, all and singular the ways,
waters, water courses, water rights and powers, liberties, privileges, sewers,
pipes, conduits, wires and other facilities furnishing utility or other services
to the property (collectively, the "Land");
TOGETHER with all of the right, title and interest of Grantor in and to all
buildings, structures and improvements now or hereafter erected on the Land
including all plant equipment, apparatus, machinery and fixtures of every kind
and nature whatsoever now or hereafter located on or forming part of said
buildings, structures and improvements (collectively, the "Improvements"; the
Land and Improvements being hereinafter collectively referred to as the
"Premises");
TOGETHER with all of the right, title and interest of Grantor in and to the
land lying in the bed of any street, road, highway or avenue in front of or
adjoining the Premises;
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TOGETHER with any and all award and awards heretofore made or hereafter to
be made by any governmental authorities to the present and all subsequent owners
of the Premises which may be made with respect to the Premises as a result of
the return of excess taxes paid on the Mortgaged Property, the exercise of the
right of eminent domain, the alteration of the grade of any street or any other
injury to or decrease of value of the Premises, which said award or awards are
hereby assigned to Beneficiary and Beneficiary, at its option, is hereby
authorized, directed and empowered to collect and receive the proceeds of any
such award or awards from the authorities making the same and to give proper
receipts and acquittances therefor, and to apply the same as hereinafter
provided; and Grantor hereby covenants and agrees to and with Beneficiary, upon
request by Beneficiary, to make, execute and deliver, at Grantor's expense, any
and all assignments and other instruments sufficient for the purpose of
assigning the aforesaid award or awards to Beneficiary free, clear and
discharged of any and all encumbrances of any kind or nature whatsoever;
TOGETHER with all goods, equipment, machinery, furni ture, furnishings,
fixtures, appliances, inventory, building materials, chattels and articles of
personal property (other than personal property which is or at any time has
become Hazardous Substances, as defined in the Loan Agreement), including any
interest therein, now or at any time hereafter affixed to, attached to, or used
in any way in connection with or to be incorporated at any time into the
Premises, or placed on any part thereof but not attached or incorporated
thereto, together with any and all replacements thereof, appertaining and
adapted to the complete and compatible use, enjoyment, occupancy, operation or
improvement of the Premises (collectively, the "Chattels");
TOGETHER with leases of the Premises or the Chattels or any part thereof
now or hereafter entered into and all right, title and interest of Grantor
thereunder, including, without limitation, cash or securities deposited
thereunder to secure performance by the lessees of their obligations thereunder
(whether such cash or securities are to be held until the expiration of the
terms of such leases or applied to one or more of the installments of rent
coming due immediately prior to the expiration of such terms) and all rights to
all insurance proceeds and unearned premiums arising from or relating to the
Premises and all other rights and easements of Grantor now or hereafter existing
pertaining to the use and enjoyment of the Premises and all right, title and
interest of Grantor in and to all declarations of covenants, conditions and
restrictions as may affect or otherwise relate to the Premises and all of
Grantor's right, title and interest in and to the lease and any and all options
to purchase, rights of first offer and rights of first
3
refusal, whether contained in the lease or elsewhere (the "Lease") more
particularly described in Exhibit A attached hereto including, without
limitation, the right to surrender, terminate, cancel, waive, change,
supplement, grant subleases of, alter or amend the Lease;
TOGETHER with all sales agreements, deposit receipts, escrow agreements and
other ancillary documents and agreements entered into with respect to the sale
to any purchasers of any part of the Premises, and all deposits and other
proceeds thereof;
TOGETHER with all permits, plans, licenses, specifica tions, subdivision
rights, tentative tract maps, final tract maps, security interests, contracts,
contract rights or other rights as may affect or otherwise relate to the
Premises;
TOGETHER with all rights of Grantor in or to any fund, program or trust
monies and any reimbursement therefrom directly or indirectly established,
maintained or administered by any governmental authority or any other individual
or entity which is designed to or has the effect of providing funds (whether
directly or indirectly or as reimbursement) for the repair or replacement of
storage tanks (whether above or below ground) located on the Premises or the
remediation or cleanup of any spill, leakage or contamination from any such tank
or resulting from the ownership, use or maintenance of any such tank or to
compensate third parties for any personal injury or property damage;
TOGETHER with all rents, issues, profits, revenues, income and other
benefits to which Grantor may now or hereafter be entitled from the Premises or
the Chattels (which Premises, titles, interests, awards, Chattels, easements,
rents, income, benefits, ways, waters, rights, powers, liberties, privileges,
utilities, tenements, hereditaments, appurtenances, reversions, remainders,
rents, issues, profits, estate, property, possession, claims and demands, are
hereinafter collectively referred to as the "Mortgaged Property");
TO HAVE AND TO HOLD the Mortgaged Property unto the Trustee, its successors
and assigns forever.
THE OBLIGATIONS SECURED HEREBY SHALL NOT EXCEED AN AGGREGATE PRINCIPAL
AMOUNT, AT ANY ONE TIME OUTSTANDING OF SIXTY MILLION AND NO/100 DOLLARS
($60,000,000), PROVIDED, THAT THE FOREGOING LIMITATION SHALL APPLY ONLY TO THE
LIEN UPON THE REAL PROPERTY CREATED BY THIS DEED OF TRUST, AND IT SHALL NOT IN
ANY MANNER LIMIT, AFFECT OR IMPAIR ANY GRANT OF A SECURITY INTEREST OR OTHER
RIGHT IN FAVOR OF THE BENEFICIARY UNDER THE PROVISIONS
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OF THE LOAN AGREEMENT OR UNDER ANY OTHER SECURITY AGREEMENT AT ANY TIME EXECUTED
BY GRANTOR.
ARTICLE I
And Grantor further covenants with the Trustee and Beneficiary as follows:
SECTION 1.01 . Grantor has good and marketable title to an indefeasible
leasehold estate in the Premises subject to no lien, charge, or
encumbrance except such as are approved by Beneficiary; that it owns
the Chattels free and clear of liens and claims, except for Permitted
Liens; that this Deed of Trust is and will remain a valid and
enforceable first and prior lien on the Mortgaged Property subject
only to the exceptions referred to above. Grantor will forever
preserve, warrant and defend the same unto the Trustee and
Beneficiary, and will forever preserve, warrant and defend the
validity and priority of the lien hereof against the claims of all
persons and parties whomsoever. Grantor has not, and will not,
surrender, terminate, cancel, waive, accept waiver, change,
supplement, grant subleases of, alter, surrender or amend, and will
comply with all of the terms, covenants and conditions contained in,
the Lease.
SECTION 1.02 . Intentionally Deleted.
SECTION 1.03 . Intentionally Deleted.
SECTION 1.04 . Intentionally Deleted.
SECTION 1.05 . All right, title and interest of Grantor in and to all
extensions, improvements, betterments, renewals, substitutes and
replacements of, and all additions and appurtenances to, the Mortgaged
Property, hereafter acquired by, or released to, or constructed,
assembled or placed by Grantor on the Premises, and all conversions of
the security constituted thereby,
5
immediately upon such acquisition, release, construction, assembling,
placement or conversion, as the case may be, and in each such case,
without any further grant, conveyance, assignment or other act by
Grantor, shall become subject to the first and prior lien and security
interest of this Deed of Trust as fully and completely, and with the
same effect, as though now owned by Grantor and specifically described
in the granting clause hereof.
SECTION 1.06 . Grantor, from time to time when the same shall become due,
will pay and discharge, or cause to be paid and discharged, all
payments required under the Lease. Grantor will, upon the request of
Beneficiary, deliver to Beneficiary receipts evidencing the payment,
before any penalties accrued thereon, of all such lease payments.
(a) Grantor will pay from time to time when the same shall become
due, all lawful claims and demands of mechanics, materialmen,
laborers, and others which, if unpaid, might result in, or permit
the creation of, a lien on the Mortgaged Property or any part
thereof, or on the revenues, rents, issues, income and profits
arising therefrom and in general will do or cause to be done
everything necessary so that the lien and security interest
hereof shall be fully preserved, at the cost of Grantor, without
expense to Beneficiary.
SECTION 1.07 . In the event of the passage, after the date of this Deed of
Trust, of any law of the State of Utah deducting from the value of the
Mortgaged Property for the purpose of taxing the amount of any lien
thereon, or changing in any way the laws now in force for the taxation
of deeds of trust, or debts secured thereby, for state or local
purposes, or the manner of operation of any such taxes so as to
adversely affect the interest of Beneficiary, then and in such event,
Grantor shall bear and pay the full amount of such taxes, provided
6
that if for any reason payment by Grantor of any such new or
additional taxes would be unlawful or if the payment thereof would
constitute usury or render the Loan Agreement or the indebtedness
secured hereby wholly or partially usurious under any of the terms or
provisions of the Loan Agreement, or this Deed of Trust, or otherwise,
Beneficiary may, at its option, upon thirty (30) days' written notice
to Grantor, (i) declare the whole indebtedness secured by this Deed of
Trust, with interest thereon, to be immediately due and payable, or
(ii) pay that amount or portion of such taxes as renders the Loan
Agreement, or the indebtedness secured hereby unlawful or usurious, in
which event Grantor shall concurrently therewith pay the remaining
lawful non-usurious portion or balance of said taxes.
SECTION 1.08 . In addition to restrictions contained in the Loan Agreement,
Grantor will not further encumber, sell, convey or transfer any
interest in, or any part of, the Mortgaged Property. Any such
encumbrance, sale, conveyance or transfer made without Beneficiary's
prior written consent shall be an Event of Default hereunder.
SECTION 1.09 . Intentionally Deleted.
SECTION 1.10 . Intentionally Deleted.
SECTION 1.11 . If Grantor shall fail to perform any of the covenants
contained herein or in the Lease on its part to be performed,
Beneficiary may, but shall not be required to, make advances to
perform the same, or cause the same to be performed, on Grantor's
behalf, and all sums so advanced shall bear interest, from and after
the date advanced until repaid, at the lower of (i) the maximum rate
permitted by law or (ii) the default rate set forth in the Loan
Agreement, shall be a lien upon the
7
Mortgaged Property and shall, at Beneficiary's option, be added to the
indebtedness secured hereby. Grantor will repay on demand all sums so
advanced on its behalf with interest at the rate herein set forth.
This Section 1.11 shall not be construed as preventing any default by
Grantor in the observance of any covenant contained in this Deed of
Trust from constituting an Event of Default hereunder.
SECTION 1.12 . Grantor will not commit any waste at or with respect to the
Mortgaged Property nor will Grantor do or fail to do anything which
will in any way increase the risk of fire or other hazard to the
Premises, Improvements or Chattels or to any part thereof.
SECTION 1.13 . Grantor will immediately notify Beneficiary of the
institution of any proceeding for the condemnation or taking by
eminent domain of the Mortgaged Property, or any portion thereof. The
Trustee and Beneficiary may participate in any such proceeding and
Grantor from time to time will deliver to Beneficiary all instruments
requested by it to permit such participation. In the event of such
condemnation proceedings, or a conveyance in lieu of such taking, the
award or compensation payable is hereby assigned to and shall be paid
to Beneficiary. Beneficiary shall be under no obligation to question
the amount of any such award or compensation and may accept the same
in the amount in which the same shall be paid, but shall have no right
to bind Grantor or to make settlement of its claim, except to the
extent of the interest of the Trustee and Beneficiary. In any such
condemnation proceedings the Trustee and Beneficiary may be
represented by counsel selected by Beneficiary. The proceeds of any
award or compensation so received after reimbursement of any expenses
incurred by Beneficiary in
8
connection with such proceedings, shall, at the option of Beneficiary,
be applied, without premium, to the repayment of the sums due under
the Loan Agreement in such order as Beneficiary may in its sole
discretion elect (regardless of interest payable on the award by the
condemning authority), or to the cost of restoration of the
Improvement or Chattel so taken and other terms as shall be
satisfactory to Beneficiary.
SECTION 1.14 . The assignment of rents, income and other benefits
(collectively, "rents") contained in the granting clause of this Deed
of Trust shall be fully operative without any further action on the
part of Grantor or Beneficiary and specifically Beneficiary shall be
entitled, at its option, to all rents from the Mortgaged Property
whether or not Beneficiary takes possession of the Mortgaged Property.
Grantor hereby further grants to Beneficiary the right (i) to enter
upon and take possession of the Mortgaged Property for the purpose of
collecting the rents, (ii) to dispossess by the usual summary
proceedings any tenant defaulting in the payment thereof to
Beneficiary, (iii) to let the Mortgaged Property or any part thereof,
and (iv) to apply the rents, after payment of all necessary charges
and expenses, on account of the indebtedness and other sums secured
hereby. Such assignment and grant shall continue in effect until the
indebtedness and other sums secured hereby are paid, the execution of
this Deed of Trust constituting and evidencing the irrevocable consent
of Grantor to the entry upon and taking possession of the Mortgaged
Property by Beneficiary pursuant to such grant, whether or not sale or
foreclosure has been instituted. Neither the exercise of any rights
under this Section by Beneficiary nor the application of the rents to
the indebtedness and other sums
9
secured hereby, shall cure or waive any Event of Default, or notice of
default hereunder or invalidate any act done pursuant hereto, but
shall be cumulative of all other rights and remedies.
The foregoing provisions hereof shall constitute an absolute and present
assignment of the rents from the Mortgaged Property, subject, however, to the
conditional permission given to Grantor to collect and use the rents until the
occurrence of an Event of Default at which time such conditional permission
shall automatically terminate; and the existence or exercise of such right of
Grantor shall not operate to subordinate this assignment, in whole or in part,
to any subsequent assignment by Grantor permitted under the provisions of this
Deed of Trust, and any such subsequent assignment by Grantor shall be subject to
the rights of the Trustee and Beneficiary hereunder.
SECTION 1.15 . Grantor will not (i) execute an assignment of the rents or
any part thereof from the Mortgaged Property unless such assignment
shall provide that it is subject and subordinate to the assignment
contained in this Deed of Trust, and any additional or subsequent
assignment executed pursuant hereto, or (ii) except where the lessee
is in default thereunder, terminate or consent to the cancellation or
surrender of any lease of the Mortgaged Property or of any part
thereof, now existing or hereafter to be made or (iii) modify any such
lease or give consent to any assignment or subletting without
Beneficiary's prior written consent, or (iv) accept prepayments of any
installments of rent or additional rent to become due under such
leases, except prepayments in the nature of security for the
performance of the lessee's obligations thereunder, or (v) in any
other manner impair the value of the Mortgaged Property or the
security of the Trustee or Beneficiary for the payment of the
indebtedness secured hereby, or (vi) enter into any lease prohibited
under the provisions of the Loan Agreement.
10
(a) Grantor will not execute any lease of all or a substantial
portion of the Mortgaged Property except for actual occupancy by
the lessee thereunder, and will at all times promptly and
faithfully perform, or cause to be performed, all of the
covenants, conditions and agreements contained in all leases of
the Mortgaged Property now or hereafter existing, on the part of
the lessor thereunder to be kept and performed. If any such lease
provides for the giving by the lessee of certificates with
respect to the status of such leases, Grantor shall exercise its
right to request such certificates within five (5) days of any
demand therefor by Beneficiary.
(b) Grantor shall furnish to Beneficiary, within fifteen (15) days
after a request by Beneficiary to do so, a written statement
containing the names of all lessees for the Mortgaged Property,
the terms of their respective leases, the spaces occupied, the
rentals paid and any security therefor.
(c) Grantor shall, from time to time upon request of Beneficiary,
specifically assign to Beneficiary as additional security
hereunder, by an instrument in writing in such form as may be
approved by Beneficiary, all right, title and interest of Grantor
in and to any and all leases now or hereafter on or affecting the
Mortgaged Property, together with all security therefor and all
monies payable thereunder, subject to the conditional permission
hereinabove given to Grantor to collect the rentals under any
such lease. Grantor shall also execute and deliver to Beneficiary
any notification, financing statement or other document
reasonably required by Beneficiary to perfect the foregoing
assignment as to any such lease.
SECTION 1.16 . Each lease of the Mortgaged Property or of any part thereof
entered into after the date hereof shall provide that, in the event of
the enforcement by the Trustee or Beneficiary of the remedies provided
for by law or by this Deed of Trust, any person succeeding to the
interest of Grantor as a result of such enforcement shall not be bound
by any payment of rent or additional rent
11
for more than one (1) month in advance, provided, however, that
nothing herein set forth shall affect or impair the rights of
Beneficiary to terminate any one or more of such leases in connection
with the exercise of its or the Trustee's remedies hereunder.
SECTION 1.17 . (a) With respect to the Lease, Grantor hereby warrants and
represents as follows: (i) the Lease is in full force and effect,
unmodified by any writing or otherwise, except as specifically set
forth in Exhibit A; (ii) all rent, additional rent and other charges
reserved herein have been paid to the extent they are payable to the
date hereof; (iii) Grantor enjoys the quiet and peaceful possession of
the property demised thereby; (vi) Grantor is not in default under any
of the terms thereof and, to the best of its knowledge, there are no
circumstances which, with the passage of time or the giving of notice
or both, would constitute a default thereunder; and (v) to the best of
Grantor's knowledge the landlord under the Lease is not in default
under any of the terms or provisions thereof on the part of the
landlord to be observed or performed;
(b) Further, with respect to the Lease, Grantor covenants and agrees
as follows: (i) to promptly and faithfully observe, perform and
comply with all the terms, covenants and provisions thereof on
Grantor's part to be observed, performed and complied with, at
the times set forth therein, without any allowance for grace
period, if any; (ii) not to do, permit, suffer or refrain from
doing anything, as a result of which, there could be a default
under or breach of any of the terms thereof; (iii) not to cancel,
surrender, modify, amend or in any way alter or permit the
alternation of any of the terms thereof; (iv) to give Beneficiary
immediate notice of any default by anyone thereunder and to
promptly deliver to Beneficiary copies of each notice of default
and all other notices, communications, plans, specifications and
other similar instruments received or delivered by Grantor in
connection therewith; (v) to furnish to Beneficiary such
information and evidence as Beneficiary may reasonably require
concerning Grantor's due observance, performance and compliance
with the terms, covenants and
12
provisions thereof; and (vi) that any default of the tenant
thereunder shall constitute an Event of Default under this Deed
of Trust;
(c) In the event of any default by Grantor in the performance of any
of its obligations under the Lease, including, without
limitation, any default in the payment of rent and other charges
and impositions made payable by the tenant thereunder, then, in
each and every case, Beneficiary may, at its option and without
notice, cause the default or defaults to be remedied and
otherwise exercise any and all of the rights of Grantor
thereunder in the name of, and on behalf of, Grantor. Grantor
shall, on demand, reimburse Beneficiary for all advances made and
expenses incurred by Beneficiary incurring any such default
(including, without limitation, reasonable attorneys' fees),
together with interest thereon computed at the rate provided for
in Section 1.12 hereof from the date that an advance is made or
expense is incurred, to and including the date the same is paid;
(d) Grantor shall give Beneficiary notice of its intention to
exercise each and every option to extend the term of the Lease,
at least twenty (20) but not more than sixty (60) days prior to
the expiration of the time to exercise such option under the
terms thereof. If Grantor intends to extend the term of the
Lease, it shall deliver to Beneficiary with the notice of such
decision, a copy of the notice extension delivered to the
landlord thereunder. If Grantor does not intend to extend the
term of the Lease, Beneficiary may, at its option, exercise the
option to extend in the name and on behalf of Grantor. In any
event, Grantor hereby appoints Beneficiary its attorney-in-fact
to execute and deliver, for and in the name of Grantor, all
instruments and agreements necessary under the Lease or otherwise
to cause any extension of the term thereof. This power, being
coupled with an interest, shall be irrevocable as long as any
amounts secured hereby remain unpaid;
(e) It is hereby agreed that the fee title, the leasehold estate and
the subleasehold estates in the property demised by the Lease
shall not merge but shall always be kept separate and distinct,
notwithstanding the union of said estates in either the landlord
thereunder, Grantor or a third party, whether by purchase or
otherwise. Not less than sixty (60) nor more than ninety (90)
days prior to the date of the exercise of any option or other
right to purchase the Premises, or any part thereof, Grantor
shall notify Beneficiary of the existence of such option or
right. At least twenty (20) but not more than sixty (60) days
prior to the expiration of the time to exercise such option or
right, Grantor shall give Beneficiary notice of its intention to
exercise such option or right. If Grantor intends to purchase, it
shall deliver to Beneficiary with the
13
notice of such decision, a copy of the notice of purchase
delivered to the appropriate party. If Grantor does not intend to
purchase, then Grantor will be deemed to have assigned the option
to Beneficiary, who may purchase the Premises in Beneficiary's
name, subject to the Lease, which will remain in full force and
effect subject to its terms. If Grantor acquires the fee title or
any other estate, title or interest in the property demised by
the Lease, or any part thereof, the lien of this Deed of Trust
shall attach to, cover and be a lien upon such acquired estate,
title or interest and same shall thereupon be and become a part
of the Mortgaged Property with the same force and effect as if
specifically encumbered herein. Grantor agrees to execute all
instruments and documents which Beneficiary may reasonably
require to ratify, confirm and further evidence Beneficiary's
lien on the acquired estate, title or interest. Furthermore,
Grantor hereby appoints Beneficiary its true and lawful
attorney-in-fact to execute and deliver all such instruments and
documents in the name and on behalf of Grantor. This power, being
coupled with an interest, shall be irrevocable as long as any
amounts secured hereby remain unpaid.
(f) If the Lease is cancelled or terminated, and if Beneficiary or
its nominee shall acquire an interest in any new lease of the
property demised thereby, Grantor shall have no right, title or
interest in or to the new lease or the leasehold estate created
by such new lease;
(g) Grantor shall use its best efforts to obtain and deliver to
Beneficiary within twenty (20) days after written demand by
Beneficiary, an estoppel certificate from the landlord under the
Lease setting forth (i) the name of the tenant thereunder, (ii)
that the Lease has not been modified or, if it has been modified,
the date of each modification (together with copies of each such
modifications), (iii) the basic rent payable under the Lease,
(iv) the date to which all rental charges have been paid by the
tenant under the Lease, and (v) whether there are any alleged
defaults of the tenant under the Lease and, if there are, setting
forth the nature thereof in reasonable detail.
(h) Grantor covenants and agrees that neither Grantor nor its trustee
in bankruptcy shall exercise any right to terminate the Lease as
afforded to it by ss.365(h)(i) of the Bankruptcy Code of the
United States, as amended, without the prior written consent of
Beneficiary.
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ARTICLE II
EVENTS OF DEFAULT AND REMEDIES
SECTION 2.01 . The occurrence of any one or more of the following events
shall constitute an event of default ("Event of Default") hereunder:
(a) If there shall be an Event of default under the Loan Agreement;
or
(b) If Grantor shall breach, or be in default of, any of the
covenants or provisions contained in this Deed of Trust, or of
any chattel mortgage, other deed of trust, security agreement or
other document issued thereunder or in connection therewith or
herewith; or
(c) If there shall be a default under the Lease.
Upon the occurrence of an Event of Default, and in every such
case:
(i) During the continuance of any Event of Default, Beneficiary
personally, or by its agents or attorneys may enter into and
upon all or any part of the Mortgaged Property, and each and
every part thereof, and may exclude the party owning the
beneficial interest in same, its agents and servants wholly
therefrom; and having and holding the same, may use,
operate, manage and control the Mortgaged Property for any
lawful purpose and conduct the business thereof, either
personally or by its superintendents, managers, agents,
servants, attorneys or receivers; and upon every such entry,
Beneficiary, at the expense of Grantor, from time to time,
either by purchase, repairs or construction, may maintain
and restore the Mortgaged Property, whereof it shall become
possessed as aforesaid, may complete the construction of the
Improvements and in the course of such completion may make
such changes in the contemplated Improvements as it may deem
desirable; may insure or reinsure the same as provided in
the Loan Agreement, and likewise, from time to time, at the
expense of Grantor, Beneficiary may make all
15
necessary or proper repairs, renewals, replacements,
alterations, additions, betterments and improvements to the
Mortgaged Property or any part thereof and thereon as it may
deem advisable; and in every such case Beneficiary shall
have the right to manage and operate the Mortgaged Property,
possessed as aforesaid, and to carry on the business thereof
and exercise all rights and powers of the party owning such
property with respect thereto either in the name of such
party or otherwise as it shall deem best; and Beneficiary
shall be entitled to collect and receive all earnings,
revenues, rents, issues, profits and income of the Mortgaged
Property and every part thereof; and after deducting
payments due under the Lease, the expenses of conducting the
business thereof and of all maintenance, repairs,
replacements, alterations, additions, betterments and
improvements and all payments which may be made for taxes,
assessments, insurance, in payment of any prior deed of
trust and prior or other proper charges upon the Mortgaged
Property or any part thereof, as well as just and reasonable
compensation of Beneficiary for the services of Beneficiary
and for all attorneys, counsel, agents, clerks, servants and
other employees by it properly engaged and employed,
Beneficiary shall apply the moneys arising as aforesaid,
first, to the payment of any sums, other than interest and
principal due pursuant to the Loan Agreement required to be
paid by Grantor under this Deed of Trust, second, to the
payment of interest due pursuant to the Loan Agreement,
third, to the payment of the principal due pursuant to the
terms of the Loan Agreement when and as the same shall
become payable, whether by acceleration or otherwise.
(ii) Beneficiary, at its option, may declare the entire unpaid
balance of the indebtedness secured hereby immediately due
and payable by delivery to Trustee of written declaration of
default and demand for sale and written notice of default
and of election to cause the Mortgaged Property to be sold,
which notice Trustee shall cause to be duly filed
16
for record. Beneficiary shall also deposit with the Trustee
this Deed of Trust, and all documents evidencing the
expenditures secured hereby.
(iii)After the lapse of such time as may then be required by law
following the recordation of said notice of default, and
notice of sale having been given as then required by law,
Trustee, without demand on Grantor, shall sell the Mortgaged
Property at the time and place fixed by it in said notice of
sale, either as a whole or in separate parcels, and in such
order as it may determine, at public auction to the highest
bidder for cash in lawful money of the United States,
payable at time of sale. If the Mortgaged Property consists
of several known lots or parcels, Beneficiary may designate
the order in which such parcels shall be sold or offered for
sale. Any person, including Grantor, Trustee or Beneficiary,
may purchase at such sale.
(iv) Trustee may postpone sale of all or any portion of the
Mortgaged Property by public announcement at such time and
place of sale, and from time to time thereafter may postpone
such sale by public announcement at the time fixed by the
preceding postponement.
(v) On and after the occurrence of an Event of Default, Grantor
shall pay all rents, issues and profits thereafter received
by Grantor from the Mortgaged Property to Beneficiary and to
the extent not paid shall hold such amounts as trust funds
for the benefit of Beneficiary and such rents, issues and
profits shall be deemed "cash collateral" of Beneficiary
under 11 U.S.C., as amended.
SECTION 2.02 . Trustee, after making such sale, and upon receipt of the
purchase price, shall make, execute and deliver to the purchaser or
purchasers its deed or deeds conveying the Mortgaged Property so sold,
but without any covenant or warranty, express or implied, and
17
without any representation, express or implied, as to the existence,
or lack thereof, of Hazardous Substances on the Mortgaged Property,
and shall apply the proceeds of sale thereof to payment, FIRSTLY, of
the expenses of such sale, together with the reasonable expenses of
this Trust, including Trustee's fees and cost of evidence of title in
connection with sale, Torrens certificates, and revenue stamps on
Trustee's deed; SECONDLY, of all moneys paid, advanced or expended by
Beneficiary under the terms hereof, not then repaid, together with the
interest thereon as herein provided; and THIRDLY, of the amount of the
principal and interest due pursuant to the Loan Agreement then
remaining unpaid.
(a) In the event of a sale of the Mortgaged Property, or any
part thereof, and the execution of a deed or deeds therefor
under these trusts, the recitals therein of any matters or
facts shall be conclusive proof of the truthfulness thereof
and of the fact that said sale was regularly and validly
made in accordance with all requirements of the laws of the
State of Utah and of this Deed of Trust; and any such deed
or deeds, with such recitals therein, shall be effectual and
conclusive against Grantor and all other persons; and the
receipt for the purchase money recited or contained in any
deed executed to the purchaser as aforesaid shall be
sufficient discharge to such purchaser from all obligations
to see to the proper application of the purchase money
according to the trusts aforesaid.
SECTION 2.03 . After the happening of an Event of Default by Grantor under
this Deed of Trust and immediately upon the commencement of any
action, suit or other legal proceeding by Beneficiary to obtain
judgment for the principal of, or interest due pursuant to the Loan
Agreement and other sums required to be paid by Grantor pursuant to
any provisions of this Deed of Trust, or of any other nature in aid of
the enforcement of the Loan Agreement, or of
18
this Deed of Trust, Grantor will waive the issuance and service of
process and enter its voluntary appearance in such action, suit or
proceeding. Further, Grantor hereby consents to the appointment of a
receiver or receivers, without bond, of the Mortgaged Property and of
all the earnings, revenues, rents, issues, profits and income thereof.
The exercise of any right under this Article II shall not be deemed as
election of remedies nor a "pending action" so as to preclude to
exercise of any other right or remedy. After the happening of any such
default and during its continuance or upon the commencement of any
proceedings to foreclose this Deed of Trust or to enforce the specific
performance hereof or in aid thereof or upon the commencement of any
other judicial proceeding to enforce any right of the Trustee or
Beneficiary hereunder, Beneficiary shall be entitled, as a matter of
right, if it shall so elect, without the giving of notice to any other
party and without regard to the adequacy or inadequacy of any security
for the Deed of Trust indebtedness, forthwith either before or after
declaring all sums due pursuant to the Loan Agreement to be due and
payable, to the appointment of such a receiver or receivers.
SECTION 2.04 . During the continuance of an Event of Default, Beneficiary
shall have the following rights and remedies:
I. Beneficiary or its employees, acting by themselves or
through a court- appointed receiver, may enter upon,
possess, manage, operate, dispose of, and contract to
dispose of the Mortgaged Property or any part thereof; take
custody of all accounts; negotiate with governmental
authorities with respect to the Mortgaged Property's
environmental compliance and remedial measures; take any
action necessary to enforce
19
compliance with any Act, including but not limited to
spending rents to abate the problem; make, terminate,
enforce or modify leases of the Mortgaged Property upon such
terms and conditions as Beneficiary deems proper; contract
for goods and services, hire agents, employees, and counsel,
make repairs, alterations, and improvements to the Mortgaged
Property necessary, in Beneficiary's judgment, to protect or
enhance the security hereof; incur the risks and obligations
ordinarily incurred by owners of property (without any
personal obligation on the part of the receiver); and/or
take any and all other actions which may be necessary or
desirable to comply with Grantor's obligations hereunder and
under the Loan Agreement. All sums realized by Beneficiary
under this subparagraph, less all costs and expenses
incurred by it under this subparagraph, including attorneys'
fees, and less such sums as Beneficiary deems appropriate as
a reserve to meet future expenses under the subparagraph,
shall be applied on any indebtedness secured hereby in such
order as Beneficiary shall determine. Neither application of
said sums to said indebtedness, nor any other action taken
by Beneficiary under this subparagraph shall cure or waive
any Event of Default or notice of default hereunder, or
nullify the effect of any such notice of default.
Beneficiary, or any employee or agent of Beneficiary, or a
receiver appointed by a court, may take any action or
proceeding hereunder without regard to (a) the adequacy of
the security for the indebtedness secured hereunder, (b) the
existence of a declaration that the indebtedness secured
hereby has been declared immediately due and payable, or (c)
the filing of a notice of default.
II. With or without notice, and without releasing Grantor from
any obligation hereunder,
L
20
to cure any default of Grantor and, in connection therewith,
Beneficiary or its agents, acting by themselves or through a
court appointed receiver, may enter upon the Mortgaged
Property or any part thereof and perform such acts and
things as Beneficiary deems necessary or desirable to
inspect, investigate, assess, and protect the security
hereof, including without limitation of any of its other
rights: (a) to obtain a court order to enforce Beneficiary's
right to enter and inspect the Mortgaged Property, to which
the decision of Beneficiary as to whether there exists a
release or threatened release of a Hazardous Substances onto
the Mortgaged Property shall be deemed reasonable and
conclusive as between the parties hereto; and (b) to have a
receiver appointed to enforce Beneficiary's right to enter
and inspect the Mortgaged Property for Hazardous Substances.
All costs and expenses incurred by Beneficiary with respect
to the audits, tests, inspections, and examinations which
Beneficiary or its agents or employees may conduct,
including the fees of the engineers, laboratories,
contractors, consultants, and attorneys, shall be paid by
Grantor. All costs and expenses incurred by Trustee and
Beneficiary pursuant to this subparagraph (including without
limitation court costs, consultant fees and attorneys' fees,
whether incurred in litigation or not
21
and whether before or after judgment) shall bear interest at
the Default Rate set forth in the Loan Agreement from the
date they are incurred until said sums have been paid.
III. To seek a judgment that Grantor has breached its covenants,
representations and/or warranties with respect to the
environmental matters set forth in the Loan Agreement by
commencing and maintaining an action or actions in any court
of competent jurisdiction for breach of contract, whether
commenced prior to or after foreclosure of the Mortgaged
Property, and to seek the recovery of any and all costs,
damages, expenses, fees, penalties, fines, judgments,
indemnification payments to third parties, and other out-
of-pocket costs or expenses actually incurred by Beneficiary
(collectively, the "Environmental Costs") incurred or
advanced by Beneficiary relating to the cleanup, remediation
or other response action required by any Act or to which
Beneficiary believes necessary to protect the Mortgaged
Property, it being conclusively presumed between Beneficiary
and Grantor that all such Environmental Costs incurred or
advanced by Beneficiary relating to the cleanup,
remediation, or other response action of or to the Mortgaged
Property were made by Beneficiary in good faith. All
Environmental Costs incurred by Beneficiary under this
subparagraph (including
22
without limitation court costs, consultant fees and
attorneys' fees, including, without limitation, fees
incurred pursuant to 11 U.S.C., whether incurred in
litigation or not and whether before or after judgment)
shall bear interest at the Default Rate from the date of
expenditure until said sums have been paid. Beneficiary
shall be entitled to bid, at the sale of the Mortgaged
Property, the amount of said costs, expenses and interest in
addition to the amount of the other obligations hereby
secured as a credit bid, the equivalent of cash.
Grantor acknowledges and agrees that notwithstanding any term or provision
contained herein or in the other Loan Documents (as defined in the Loan
Agreement), the Environmental Costs shall be exceptions to any nonrecourse or
exculpatory provision of the Loan Documents, and Grantor shall be fully and
personally liable for the Environmental Costs hereunder, and such liability
shall not be limited to the original principal amount of the obligations secured
by this Deed of Trust, and Grantor's obligations shall survive the foreclosure,
deed in lieu of foreclosure, release, reconveyance, or any other transfer of the
Mortgaged Property or this Deed of Trust. For the purposes of any action brought
under this subparagraph, Grantor hereby waives the defense of laches and any
applicable statute of limitations.
IV. To waive its lien against the Mortgaged Property or any
portion thereof, whether fixtures or personal property, to
the extent such property is found to be environmentally
impaired and to exercise any and all rights and remedies of
an unsecured creditor against Grantor and all of Grantor's
assets and property for the recovery of any deficiency and
Environmental Costs, including, but not limited to,
23
seeking an attachment order. As between Beneficiary and
Grantor, Grantor shall have the burden of proving that
Grantor or any related party (or any affiliate or agent of
Grantor or any related party) was not in any way negligent
in permitting the release or threatened release of the
Hazardous Substances. Grantor acknowledges and agrees that
Grantor shall be fully and personally liable for all
judgments and awards entered against Grantor hereunder and
such liability shall not be limited to the original
principal amount of the obligations secured by this Deed of
Trust and Grantor's obligations shall survive the
foreclosure, deed in lieu of foreclosure, release,
reconveyance, or any other transfer of the Mortgaged
Property or this Deed of Trust. For the purposes of any
action brought under this subparagraph, Grantor hereby
waives the defense of laches and any applicable statute of
limitations.
V. Nothing contained herein shall be construed to limit any and
all rights that Beneficiary has at law or pursuant hereto.
SECTION 2.05 . No remedy herein conferred upon or reserved to the Trustee
or Beneficiary is intended to be exclusive of any other available
remedy or remedies, but each and every such remedy shall be cumulative
and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute. No delay or
omission of the Trustee or Beneficiary to exercise any right or power
occurring
24
upon the Event of Default shall impair any such right or power or
shall be construed to be a waiver thereof or an acquiescence therein;
and every power and remedy given by this Deed of Trust to the Trustee
or Beneficiary may be exercised from time to time and as often as may
be deemed expedient by the Trustee or Beneficiary. Nothing in this
Deed of Trust or in the Loan Agreement shall affect the obligation of
Grantor to pay the principal of and interest on all sums due under the
Loan Agreement in the manner and at the time and place therein
respectively expressed.
SECTION 2.06 . To the extent permitted by law, Grantor will not at any time
insist upon, or plead, or in any manner whatever claim or take any
benefit or advantage of, any stay or extension or moratorium law, any
exemption from execution or sale of the Mortgaged Property or any part
thereof, wherever enacted, now or at any time hereafter in force,
which may affect the covenants and terms of performance of this Deed
of Trust; nor claim, take or insist upon any benefit or advantage of
any law now or hereafter in force providing for the marshalling of the
Mortgaged Property or on the valuation or appraisal of the Mortgaged
Property, or any part thereof, prior or subsequent to any sale or
sales thereof which may be made pursuant to any provision herein, or
pursuant to the decree, judgment or order of any court of competent
jurisdiction; nor, after any such final sale or sales, claim or
exercise any right under any statute or otherwise, to redeem the
property so sold or any part thereof; and Grantor hereby expressly
waives all benefit or advantage of any such law or laws, and covenants
not to hinder, delay or impede the execution of any power herein
granted or delegated to the Trustee or Beneficiary, but to suffer and
permit the execution of every power as though no such law or laws had
been made or
25
enacted. Grantor hereby waives the right to require any sale to be
made in parcels, or the right to select parcels to be so sold, and
there shall be no requirement for marshalling of assets. Grantor
hereby further waives any rights it may have under applicable law
relating to the prohibition of the obtaining of a deficiency judgment
by Beneficiary against Grantor.
SECTION 2.07 . During the continuance of any Event of Default and pending
the exercise by the Trustee or Beneficiary of its right to exclude
Grantor from all or any part of the Premises, Grantor agrees to pay
the fair and reasonable rental value for the use and occupancy of the
Mortgaged Property for such period and upon default of any such
payment, will vacate and surrender possession of the Premises to the
Trustee or Beneficiary or to a receiver, if any, and in default
thereof may be evicted by any summary action or proceeding for the
recovery or possession of Premises for non-payment of rent, however
designated. In the event Grantor remains in possession of the
Mortgaged Property after the same is sold as provided above or after
Beneficiary otherwise becomes entitled to possession of the same,
Grantor shall become a tenant at will of Beneficiary or the purchaser
of the Mortgaged Property.
SECTION 2.08 . Without affecting the personal liability of any person,
firm, corporation or other entity, including Grantor (other than any
person released pursuant hereto), for the payment of the indebtedness
secured hereby, and without affecting the lien of this Deed of Trust
for the full amount of the indebtedness remaining unpaid upon any
property not reconveyed pursuant hereto, Beneficiary and Trustee are
respectively authorized and empowered as follows: Beneficiary may, at
any time and from time to time, either before or after the expiration
of
26
the Loan Agreement, and without notice: (a) release any person liable
for the payment of any of the indebtedness, (b) make any agreement
extending the time or otherwise altering the terms of payment of any
of the indebtedness, (c) accept additional security therefor of any
kind, (d) release any property, real or personal, securing the
indebtedness. Trustee may, without liability therefor and without
notice, at any time and from time to time so long as the lien or
charge hereof shall subsist, but only upon the written request of
Beneficiary and presentation of this Deed of Trust for endorsement:
(a) consent to the making of any map or plat of the Land, (b) join in
granting any easement thereon or in creating any covenants restricting
use or occupancy thereof, (c) reconvey, without warranty, any part of
the Mortgaged Property, (d) join in any extension agreement or in any
agreement subordinating the lien or charge hereof.
SECTION 2.09 . This Deed of Trust constitutes a Security Agreement under
the laws of the State of Utah so that Beneficiary shall have and may
endorse a security interest in any or all of the Mortgaged Property
which may or might now or hereafter be or be deemed to be personal
property, fixtures or property other than real estate (collectively,
"Personal Property") and Grantor agrees to execute, as debtor, such
financing statement or statements as Beneficiary may now or hereafter
reasonably request in order that such security interest or interests
may be perfected pursuant to such laws. This Deed of Trust further
constitutes a fixture filing under Sections 9-313 and 9-402 of the
Utah Uniform Commercial Code, as amended or recodified from time to
time; provided, however that the execution and/or filing hereof does
not imply that the items of Personal Property included in the
Mortgaged Property are or are to become
27
fixtures. The filing hereof as a fixture filing is intended to protect
the parties from unwarranted assertions by third parties.
Notwithstanding any release of any or all of the property included in the
Premises 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
of Grantor as are now or hereafter evidenced by the Loan Agreement.
SECTION 2.10 . During the continuance of any Event of Default, Beneficiary
shall have all of the rights and remedies of a secured party under the
Uniform Commercial Code (the "Code") of the State of Utah, and
specifically the right to direct notice and collections of any
obligation owing to Grantor by any lessee. In addition to its rights
to foreclose this Deed of Trust, Beneficiary shall have the right to
sell the Personal Property or any part thereof, or any further, or
additional, or substituted Personal Property, at one or more times,
and from time to time, at public sale or sales or at private sale or
sales, on such terms as to cash or credit, or partly for cash and
partly on credit, as Beneficiary may deem proper. Beneficiary shall
have the right to become the purchaser at any such public sale or
sales, free and clear of any and all claims, rights of equity of
redemption in Grantor, all of which are hereby waived and released.
Grantor shall not be credited with the amount of any part of such
purchase price, unless, until and only to the extent that such payment
is actually received in cash. Notice of public sale, if given, shall
be sufficiently given, for all purposes, if published not less than
seven days prior to any sale, in any newspaper of general circulation
distributed in the city in which the property to be sold is located or
as otherwise required by the Code.
28
The net proceeds of any sale of the Personal Property which may remain
after the deduction of all costs, fees and expenses incurred in
connection therewith, including, but not limited to, all advertising
expenses, broker's or brokerage commissions, documentary stamps,
recording fees, foreclosure costs, stamp taxes and counsel fees, shall
be credited by Beneficiary against the liabilities, obligations and
indebtedness of Grantor to Beneficiary secured by this Deed of Trust
and evidenced by the Loan Agreement. Any portion of the Personal
Property which may remain unsold after the full payment, satisfaction
and discharge of all of the liabilities, obligations and indebtedness
of Grantor to Beneficiary shall be returned to the respective parties
which delivered the same to Beneficiary. If at any time Grantor or any
other party shall become entitled to the return of any of the Personal
Property hereunder, any transfer or assignment thereof by Beneficiary
shall be, and shall recite that the same is, made wholly without
representation or warranty whatsoever by, or recourse whatsoever
against Beneficiary.
SECTION 2.11 . All rights, remedies and powers provided by Sections
2.01-2.10 hereof may be exercised only to the extent that the exercise
thereof does not violate any applicable provision of law in the
jurisdiction in which the Premises are located, and all such
provisions are intended to be subject to all applicable provisions of
law which may be controlling in such jurisdiction and to be limited to
the extent necessary so that they will not render this Deed of Trust
invalid, illegal or unenforceable under the provisions of any
applicable law.
SECTION 2.12 . Grantor agrees, to the full extent permitted by law, that at
all times following an Event of Default, neither
29
Grantor nor anyone claiming through or under it shall or will set up,
claim or seek to take advantage of any appraisement, valuation, stay,
or extension laws now or hereafter in force, in order to prevent or
hinder the enforcement or foreclosure of this Deed of Trust or the
absolute sale of the Mortgaged Property or the final and absolute
putting into possession thereof, immediately after such sale, of the
purchaser thereat; and Grantor, for itself and all who may at any time
claim through or under it, hereby waives, to the full extent that it
may lawfully so do, the benefit of all such laws and any and all right
to have the assets comprising the Mortgaged Property marshalled upon
any foreclosure of the lien hereof and agrees that Trustee or any
court having jurisdiction to foreclose such lien may sell the
Mortgaged Property in part or as an entirety. To the full extent
permitted by law, Grantor hereby waives any and all statutory or other
rights of redemption from sale under any order or decree of
foreclosure of this Deed of Trust, on its own behalf and on behalf of
each and every person acquiring any interest in or title to the
Mortgaged Property subsequent to the date hereof.
ARTICLE III
MISCELLANEOUS
SECTION 3.01 . In the event any one or more of the provisions contained in
this Deed of Trust shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Deed of
Trust, but this Deed of Trust shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
30
SECTION 3.02 . All notices or demands by any party relating to this Deed of
Trust or any other agreement entered into in connection herewith shall
be sent in the form set forth in the Loan Agreement.
The parties hereto may change the address at which they are to receive
notices hereunder, by notice in writing in the foregoing manner given to the
other. All notices or demands sent in accordance with this Section 3.02 other
than notices by Beneficiary in connection with Sections 9504 or 9505 of the
Code, shall be deemed received on the earlier of the date of actual receipt or
three (3) calendar days after the deposit thereof in the mail. Grantor
acknowledges and agrees that notices sent by Beneficiary in connection with
Sections 9504 or 9505 of the Code shall be deemed sent when deposited in the
mail or transmitted by telefacsimile or other similar method permitted by law.
SECTION 3.03 . Whenever in this Deed of Trust the giving of notice by mail
or otherwise is required, the giving of such notice may be waived in
writing by the person or persons entitled to receive such notice.
SECTION 3.04 . All of the grants, covenants, terms, obligations, provisions
and conditions herein contained shall run with the land and shall
apply to, bind and inure to the benefit of, the successors and assigns
of Grantor and Beneficiary and to the successors of the Trustee.
SECTION 3.05 . Intentionally Deleted.
SECTION 3.06 . It shall be lawful for the Trustee, or Beneficiary, at its
election, upon the occurrence of an Event of Default, to sue out
forthwith a complaint in foreclosure upon this Deed of Trust and to
proceed thereon to judgment and execution for the recovery of all sums
payable by Grantor pursuant to the terms of this Deed of Trust without
further stay, any law, usage or custom to the contrary
notwithstanding.
SECTION 3.07 . Notwithstanding the appointment of any receiver, liquidator
or trustee of Grantor, or of any of its property, or of the Mortgaged
Property, or any part
31
thereof, the Trustee shall be entitled to retain possession and
control of all property now or hereafter held under this Deed of
Trust.
SECTION 3.08 . Intentionally Deleted.
SECTION 3.09 . Grantor hereby waives and relin quishes unto, and in favor
of Beneficiary, all benefit under all laws, now in effect or hereafter
passed, to relieve Grantor in any manner from the obligations assumed
and the obligation for which this Deed of Trust is security or to
reduce the amount of the said obligation to any greater extent than
the amount actually paid for the Mortgaged Property, in any judicial
proceedings upon the said obligation, or upon this Deed of Trust.
SECTION 3.10 . Neither Grantor nor any other person now or hereafter
obligated for payment for all or any part of the indebtedness secured
hereby shall be relieved of such obligation by reason of the failure
of Beneficiary to comply with any request of Grantor or of any other
person so obligated to take action to foreclose on this Deed of Trust
or otherwise enforce any provisions hereof or under the Loan Agreement
or by reason of the release, regardless of consideration, of all or
any part of the security held for the indebtedness secured hereby, or
by reason of any agreement of stipulation between any subsequent owner
of the Mortgaged Property and Beneficiary extending the time of
payment or modifying the terms hereof without first having obtained
the consent of Grantor or such other person; and in the latter event
Grantor and all other such persons shall continue to be liable to make
payment according to the terms of any such extension or modification
agreement, unless expressly released and discharged in writing by
Beneficiary.
32
SECTION 3.11 . By accepting or approving anything required to be observed,
performed or fulfilled or to be given to Beneficiary pursuant to this
Deed of Trust, including (but not limited to) any certificate, balance
sheet, statement of profit and loss or other financial statement,
survey, appraisal or insurance policy, Beneficiary shall not be deemed
to have warranted or represented the sufficiency, legality,
effectiveness or legal effect of the same, or of any term, provision
or condition thereof, and such acceptance or approval thereof shall
not be or constitute any warranty or representation with respect
thereto by Beneficiary.
SECTION 3.12 . Beneficiary may from time to time, without notice to Grantor
or to the Trustee, and with or without cause and with or without the
resignation of the Trustee substitute a successor or successors to the
Trustee named herein or acting hereunder to execute this trust. Upon
such appointment and without conveyance to the successor Trustee, the
latter shall be vested with all title, powers and duties conferred
upon the Trustee herein named or acting hereunder. Each such
appointment and substitution shall be made by written document
executed by Beneficiary, containing reference to this Deed of Trust
and its place of record, which when duly filed for record in the
proper office, shall be conclusive proof of proper appointment of the
successor Trustee. The procedure herein provided for substitution of
the Trustee shall be conclusive of all other provisions for
substitution, statutory or otherwise.
SECTION 3.13 . Intentionally Deleted.
SECTION 3.14 . Intentionally Deleted.
SECTION 3.15 . GRANTOR AGREES THAT THIS DEED OF TRUST, THE LOAN AGREEMENT,
AND ALL OTHER
33
RELATED DOCUMENTS AND THE RIGHT, DUTIES, OBLIGATIONS AND LIABILITIES
THEREUNDER (INCLUDING, WITHOUT LIMITATION, THE LIABILITY OF GRANTOR
FOR ANY DEFICIENCY FOLLOWING A FORECLOSURE OF ALL OR ANY PART OF THE
MORTGAGED PROPERTY) ARE TO BE CONSTRUED, GOVERNED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, EXCEPT AS TO
MATTERS RELATING TO THE CREATION, PERFECTION, PRIORITY AND ENFORCEMENT
OF THE LIENS ON AND SECURITY INTEREST IN THE MORTGAGED PROPERTY, WHICH
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF UTAH. WHEREVER POSSIBLE, EACH PROVISION OF THIS DEED OF TRUST
SHALL BE INTERPRETED IN SUCH MANNER AS TO BE EFFECTIVE AND VALID UNDER
APPLICABLE LAW, BUT IF ANY PROVISION OF THIS DEED OF TRUST SHALL BE
PROHIBITED BY OR INVALID UNDER APPLICABLE LAW, SUCH PROVISION SHALL BE
INEFFECTIVE ONLY TO THE EXTENT OF SUCH PROHIBITION OR INVALIDITY,
WITHOUT INVALIDATING THE REMAINDER OF SUCH PROVISIONS OR THE REMAINING
PROVISIONS OF THIS DEED OF TRUST.
SECTION 3.16 . Trustee covenants faithfully to perform the trust herein
created, being liable, however, only for gross negligence or willful
misconduct. Trustee accepts this Trust, when this Deed of Trust, duly
executed and acknowledged, is made public record as provided by law.
Trustee is not obligated to notify any party hereto of any action or
proceeding in which Grantor, Beneficiary or Trustee shall be a party
unless brought by Trustee.
34
IN WITNESS WHEREOF, Grantor has caused this Deed of Trust to be executed as
of the day and year first above written.
"Grantor"
EVANS & SUTHERLAND COMPUTER CORPORATION,
a Utah corporation
By /s/ R. Gaynor
--------------------------------------------------
Richard J. Gaynor, Vice President
& Chief Financial Officer
35
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On December 14, 2000, before me, Greta Johnson, personally
appeared RICHARD J. GAYNOR, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument
WITNESS my hand and official seal.
/s/ Greta Johnson
-----------------------------------------------------
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EXHIBIT A
The leasehold estate and interest which arise pursuant to that certain Lease
Agreement, dated November 21, 1973, by and between UNIVERSITY OF UTAH, a
corporate and body politic ("Lessor"), and PARK ENTERPRISES, a general
partnership ("Lessee"), and amended by that certain First Addendum To Lease
Agreement, dated May 24, 1974, and by that certain Second Addendum To Lease
Agreement, dated March 23, 1977, and by that certain Third Addendum To Lease
Agreement, dated September 12, 1979, and by that certain Fourth Addendum To
Lease Agreement, dated April 9, 1987 [record notice of the existence of said
Lease Agreement was originally afforded by that certain Memorandum Of Lease
recorded July 26, 1974 as Entry No. 2638807, in Book 3640 at Page 114, of the
Official Records of the Salt Lake County Recorder. Further record notice was
afforded by a Memorandum Of Ground Lease recorded June 1, 2000 as Entry No.
7650613, in Book 8365 at Page 3599, of the Official Records of Salt Lake County
Recorder; the Lessee's interest being now held by EVANS & SUTHERLAND COMPUTER
CORPORATION, a Utah corporation], in and to the following described tract of
land:
BEGINNING at a point on the Westerly line of Arappen Drive, said point
being North 2259.174 feet and West 610.639 feet from the Salt Lake City
Survey Monument at the intersection of Sunnyside Avenue and Padley
Street, said Monument is located South 65(degree)48'24" West 3622.62
feet and East 97.00 feet and South 58.20 feet from the Southeast corner
of Section 3, Township 1 South, Range 1 East, Salt Lake Base and
Meridian, and running thence South 41(degree)00'00" West 210.00 feet;
thence South 49(degree)00'00" East 70.00 feet; thence South
41(degree)00'00" West 342.00 feet; thence South 49(degree)00'00" East
303.00 feet to a point on the arc of a 70.00 foot radius curve to the
left; thence Easterly 109.956 feet along said curve (chord bears: North
86(degree)00'00" East 98.995 feet); thence North 41(degree)00'00" East
90.00 feet; thence North 49(degree)00'00" West 178 feet; thence North
49(degree)00'00" East 392.00 feet to the Westerly line of Arappen
Drive; thence North 49(degree)00'00" West 265.00 feet along said
Westerly line to the point of BEGINNING.
EXCEPTING ANY PORTIONS LYING WITHIN THE BOUNDS OF KOMAS DRIVE AND/OR BLACK HAWK
WAY, THE DEDICATION PLATS OF WHICH ARE FILED IN THE OFFICE OF THE SALT LAKE
COUNTY RECORDER.
37