After Recording, Return To:
Xxxxx, Xxxxxx & Xxxxxx LLP
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxx X. Xxxxxx XX
DEED OF TRUST AND SECURITY AGREEMENT
DEED OF TRUST,
SECURITY AGREEMENT
AND FIXTURE FILING
Dated as of September 30, 1997
EFTC CORPORATION, Grantor
BANK ONE, COLORADO, N.A., as Agent and Beneficiary
NORTHWEST TITLE COMPANY, Trustee
Maximum principal amount to be advanced pursuant to
the Credit Agreement and Promissory Notes secured by
this line of credit instrument (which amount may be
exceeded by advances to complete construction
pursuant to ORS 86.155(2)(c)): $45,000,000.
Maturity Date of the Credit Agreement (exclusive of
any option to renew or extend): September 30, 2000
(Revolving and Swing Loans )
and September 30, 2002. (Term Loan).
THIS INSTRUMENT IS GOVERNED BY THE PROVISIONS OF THE OREGON
REVISED STATUTES 86.705 ET SEQ.
THIS INSTRUMENT SECURES FUTURE ADVANCES
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS.
THE REAL PROPERTY SUBJECT HERETO IS DESCRIBED IN EXHIBIT A.
THIS INSTRUMENT IS TO BE RECORDED AS A DEED OF TRUST IN YAMHILL
COUNTY OREGON
-i-
C O N T E N T S
Page
ARTICLE 1 PARTIES, PROPERTY AND DEFINITIONS.............................................................1
1.1 Grantor...................................................................1
1.2 Beneficiary...............................................................1
1.3 Trustee...................................................................1
1.4 Notes.....................................................................1
1.5 Property..................................................................2
1.6 Chattels..................................................................3
1.7 Intangible Personalty.....................................................3
1.8 Loan Documents............................................................3
1.9 Environmental Law.........................................................3
1.10 Regulated Substance.......................................................3
1.11 Person....................................................................4
1.12 Secured Obligations.......................................................4
1.13 Default Rate..............................................................4
ARTICLE 2 GRANTING CLAUSE...............................................................................4
2.1 Grant to Trustee..........................................................4
2.2 Security Interest to Beneficiary..........................................4
ARTICLE 3 GRANTOR'S WARRANTIES AND REPRESENTATIONS......................................................4
3.1 Warranty of Title.........................................................4
3.2 Organizational Status.....................................................5
3.3 Due Authorization.........................................................5
3.4 No Regulated Substances...................................................5
3.5 Non-Agricultural Property.................................................6
3.6 No Susceptibility to Forfeiture...........................................6
3.7 Compliance with Laws......................................................6
3.8 No Conflict with Other Agreements.........................................6
3.9 No Material Litigation....................................................6
3.10 Accurate Financial Information............................................6
ARTICLE 4 GRANTOR'S AFFIRMATIVE COVENANTS...............................................................7
4.1 Payment of Notes..........................................................7
4.2 Performance of Other Obligations..........................................7
4.3 Waiver of Homestead and Other Exemptions..................................7
-i-
4.4 Payment of Taxes..........................................................7
4.5 Other Encumbrances........................................................7
4.6 Maintenance of Insurance..................................................7
4.7 Payment of Utilities......................................................8
4.8 Maintenance and Repair of Property........................................8
4.9 Compliance with Laws......................................................9
4.10 Performance of Lease Obligations..........................................9
4.11 Eminent Domain; Private Damage............................................9
4.12 Mechanics' Liens.........................................................10
4.13 Environmental Claims.....................................................10
4.14 Defense of Actions.......................................................10
4.15 Expenses of Enforcement..................................................10
4.16 Book and Records; Financial Reports......................................11
4.17 Priority of Leases. ....................................................11
4.18 Further Assurances; Estoppel Certificates................................11
ARTICLE 5 GRANTOR'S NEGATIVE COVENANTS.................................................................11
5.1 Waste and Alterations....................................................11
5.2 Zoning and Private Covenants.............................................12
5.3 Additional Tax Burden....................................................12
5.4 Interference with Leases.................................................12
5.5 Transfer of Property.....................................................12
5.6 Further Encumbrance of Property..........................................12
5.7 Use of Regulated Substances..............................................13
5.8 Change of Name...........................................................13
5.9 Improper Use of Property.................................................13
ARTICLE 6 EVENTS OF DEFAULT............................................................................13
6.1 Failure to Pay Notes.....................................................13
6.2 Violation of Other Covenants.............................................13
6.3 Misrepresentation or Breach of Warranty..................................14
6.4 Acts Threatening Forfeiture. ...........................................14
6.5 Assertion of Priority....................................................14
6.6 Event of Default Under Credit Agreement. ...............................14
ARTICLE 7 BENEFICIARY'S REMEDIES.......................................................................14
7.1 Performance of Defaulted Obligations.....................................14
7.2 Specific Performance and Injunctive Relief...............................15
-ii-
7.3 Acceleration of Secured Obligations......................................15
7.4 Suit for Monetary Relief.................................................15
7.5 Possession of Property...................................................15
7.6 Enforcement of Security Interests........................................15
7.7 Foreclosure Against Property.............................................15
7.8 Appointment of Receiver..................................................16
ARTICLE 8 MISCELLANEOUS PROVISIONS.....................................................................17
8.1 Replacement of Trustee...................................................17
8.2 Time of the Essence......................................................18
8.3 Joint and Several Obligations............................................18
8.4 Rights and Remedies Cumulative...........................................18
8.5 No Implied Waivers.......................................................18
8.6 Dealings with Successor Owners...........................................18
8.7 No Third Party Rights....................................................18
8.8 Preservation of Liability and Priority...................................19
8.9 Subrogation of Beneficiary...............................................19
8.10 Notices..................................................................19
8.11 Fixture Filing...........................................................19
8.12 Defeasance...............................................................19
8.13 Severability.............................................................19
8.14 Reconveyance by Trustee..................................................20
8.15 Attorney's Fees..........................................................20
8.16 UNDER OREGON LAW.........................................................21
8.17 Acceptance by Trustee....................................................21
-iii-
DEED OF TRUST AND SECURITY AGREEMENT
THIS DEED OF TRUST AND SECURITY AGREEMENT ("Deed of Trust") is given
as of September 30, 1997, by the Grantor named below to the Trustee named below,
for the use and benefit of the Beneficiary named below.
ARTICLE 1
PARTIES, PROPERTY AND DEFINITIONS
The following terms and references shall have the meanings indicated:
1.1 Grantor: EFTC CORPORATION, a Colorado corporation, whose legal
address is 0000 Xxxxx Xxxxxx, Xxxxxxx Xxxxxxx, Xxxxx Xxxxx, Xxxxxx, Xxxxxxxx
00000.
1.2 Beneficiary: BANK ONE, COLORADO, N.A., a national banking
association, whose legal address is 0000 Xxxxxxxxxxx Xxxxxx, Xxxxx Xxxxx,
Xxxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx, Vice President, as Agent
for the Banks under that certain Credit Agreement (the "Credit Agreement") dated
September 30, 1997, by and among Grantor, the Banks listed therein, together
with any future holder of a Note. Capitalized terms used and not otherwise
defined herein shall have the meanings given to them in the Credit Agreement.
1.3 Trustee: NORTHWEST TITLE COMPANY, with an office located at
000 X. Xxxxxxx, Xxxxxxx, Xxxxxx 00000.
1.4 Notes: Any promissory notes made by Grantor in favor of
Beneficiary, including, without limitation:
(i) Grantor's Promissory Note (Revolving Loan) dated September 30, 1997, in
the original principal amount of $25,000,000.00;
(ii) Grantor's Promissory Note (Term Loan) dated September 30, 1997, in the
original principal amount of $20,000,000.00; (iii) Grantor's Promissory Note
(Swing Loan) dated September 30, 1997, in the original principal amount of
$2,500,000.00; and
-1-
(iv) Any and all modifications, extensions and
renewals of any of the foregoing and any and
all future advances or readvances to Grantor
whether pursuant to any of the foregoing
promissory notes or otherwise.
All terms and provisions of the Notes and the Guaranty are incorporated by this
reference in this Deed of Trust.
1.5 Property: The land described in Exhibit A attached,
together with the following:
(a) All buildings, structures and improvements now or
hereafter located thereon, as well as all rights of way, easements, trackage
rights and other appurtenances to such land;
(b) All of Grantor's right, title and interest in any land
lying between the boundaries of the land described on Exhibit A and the center
line of any adjacent street, road, avenue or alley, whether opened or proposed;
(c) All of Grantor's right, title and interest in all water
rights and conditional water rights that are appurtenant to or that have been
used or are intended for use in connection with such land, including but not
limited to (i) ditch, well, pipeline, spring and reservoir rights, whether or
not adjudicated or evidenced by any well or other permit, (ii) all rights with
respect to nontributary groundwater (and other groundwater) underlying said
land, (iii) any permit to construct any water well, water from which is intended
to be used in connection with such land, and (iv) all of Grantor's right, title
and interest under any decreed or pending plan of augmentation or water exchange
plan;
(d) All of Grantor's right, title and interest in all
minerals, crops, timber, trees, shrubs, flowers and landscaping features now or
hereafter located on, under or above such land;
(e) With the exception of items that are owned by tenants
and that such tenants are entitled, under the terms of applicable lease
agreements, to remove from the leased premises , and except for items leased by
Grantor from third parties or held by Grantor on consignment, all machinery,
apparatus, equipment, fittings, fixtures (whether actually or constructively
attached, and including all trade, domestic and ornamental fixtures) now or
hereafter located in, on or under such land or improvements and used or usable
in connection with any present or future operation thereof, including but not
limited to all heating, air-conditioning, freezing,
-2-
lighting, laundry, incinerating and power equipment; engines; pipes; pumps;
tanks; motors; conduits; switchboards; plumbing, lifting, cleaning, fire
prevention, fire extinguishing, refrigerating, ventilating, cooking and
communications apparatus; boilers, water heaters, ranges, furnaces and burners;
appliances; vacuum cleaning systems; elevators; escalators; shades; awnings;
screens; storm doors and windows; stoves; refrigerators; attached cabinets;
partitions; ducts and compressors; rugs and carpets; draperies; and all
additions thereto and replacements therefor;
(f) All development rights associated with such land,
whether previously or subsequently transferred to such land from other real
property or now or hereafter susceptible of transfer from such land to other
real property;
(g) All awards and payments, including interest thereon,
resulting from the exercise of any right of eminent domain or any other public
or private taking of, injury to, or decrease in the value of, any of such
property; and
(h) All other or greater rights and interests of every
nature in any of the above-described property and in the possession or use
thereof and income therefrom, whether now owned or subsequently acquired by
Grantor.
1.6 Chattels: All goods, fixtures, building and other materials,
supplies and other tangible personal property of every nature now owned or
hereafter acquired by Grantor and used, intended for use, or usable in the
operation and any future construction of improvements or development of the
Property, together with all accessions thereto, replacements and substitutions
therefor and proceeds thereof.
1.7 Intangible Personalty: All accounts and all plans,
specifications, licenses, permits and other general intangibles (whether now
owned or hereafter acquired, and including proceeds thereof) relating to or
arising from Grantor's ownership, use, operation, leasing or sale of all or any
part of the Property, specifically including but in no way limited to any right
that Grantor may have or acquire to transfer any development rights from the
Property to other real property, and any development rights that may be so
transferred.
1.8 Loan Documents: The Notes, this Deed of Trust and any financing
statements executed in connection herewith, the Assignment of Leases and Rents
and Other Income of even date herewith that also secures the Notes, the Credit
Agreement and each other document executed or delivered by Grantor as security
for the Notes or in connection with the transaction pursuant to which the Notes
have been executed and delivered. The term "Loan Documents" also
-3-
includes all modifications, extensions, renewals and replacements of each
document referred to above.
1.9 Environmental Law: Any federal, state or local enactment relating to
protection of public health or the environment, including (by way of
illustration rather than limitation) the Clean Water Act, 33 U.S.C. ss. 1251, et
seq., the Clean Air Act, 42 U.S.C. ss. 7401, et seq., the Resource Conservation
and Recovery Act, 42 U.S.C. ss. 6901, et seq., the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, 42 U.S.C. ss. 9601, et seq.,
the Toxic Substances Control Act, 15 U.S.C. ss. 2601, et seq., and the Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. ss. 135, et seq., as well
as applicable state counterparts to such federal legislation and any
regulations, guidelines, directives or other interpretations of any such
enactment, all as amended from time to time.
1.10 Regulated Substance: Any substance, the manufacture, storage,
transport, generation, use, treatment, recycling, disposal or other disposition
of which is prohibited or regulated (including, without limitation, being
subjected to notice, reporting, record-keeping or clean-up requirements) by any
Environmental Law.
1.11 Person: An individual, corporation, association, partnership, trust or
other legal entity.
1.12 Secured Obligations: All present and future obligations of
Grantor to Beneficiary evidenced by or contained in the Loan Documents, whether
stated in the form of promises, covenants, representations, warranties,
conditions or prohibitions or in any other form.
1.13 Default Rate: A rate of interest equal to the Prime Rate
plus 3% per annum.
ARTICLE 2
GRANTING CLAUSE
2.1 Grant to Trustee. As security for the Secured Obligations,
Grantor grants, bargains, sells and conveys the Property to Trustee, in trust,
with the power of sale, for the use and benefit of Beneficiary and subject to
all provisions of this Deed of Trust.
2.2 Security Interest to Beneficiary. As additional security for the
Secured Obligations, Grantor hereby grants to Beneficiary a security interest in
the Chattels and in the Intangible Personalty. To the extent any of the Chattels
or the Intangible Personalty may be or have been acquired with funds advanced by
Beneficiary under the Loan Documents, this security
-4-
interest is a purchase money security interest. The security interest granted in
this section shall survive any judicial or nonjudicial foreclosure of this Deed
of Trust as against the Property and, notwithstanding any purported cancellation
of this Deed of Trust in connection with any such foreclosure, shall continue in
force as against the Chattels and the Intangible Personalty until all of the
Secured Obligations have been satisfied and discharged in full. Any complete
release of this Deed of Trust shall, however, unless otherwise expressly
provided in the release document, constitute a release of such security interest
as well. Grantor agrees that a carbon, photographic or other reproduction of
this Deed of Trust, or of any financing statement signed in connection with this
Deed of Trust, may be filed or recorded to perfect the security interests
granted in this section. After an event of default has occurred and continues
beyond the applicable grace period thereafter, Grantor appoints Beneficiary
attorney-in-fact for Grantor, to sign on Grantor's behalf any financing
statement or amendment of financing statement that Beneficiary may at any time
consider necessary or appropriate after an Event of Default has occurred and
continues beyond the applicable grace period therefor.
ARTICLE 3
GRANTOR'S WARRANTIES AND REPRESENTATIONS
3.1 Warranty of Title. Grantor represents and warrants to Beneficiary
that Grantor has good, marketable and insurable title to the Property, subject
only to the lien of general taxes for the current year, payable the following
year, and those additional matters, if any, set forth in Exhibit B attached.
Grantor further represents and warrants to Beneficiary that Grantor has good
title to the Chattels and the Intangible Personalty, free of any liens,
encumbrances, security interests and other claims whatever, except insofar as
the Chattels may be encumbered by the lien of general taxes for the current
year, payable in the following year, or by any encumbrance listed in Exhibit B.
The warranties contained in this section shall survive foreclosure of this Deed
of Trust, and shall inure to the benefit of and be enforceable by any Person who
may acquire title to the Property, the Chattels or the Intangible Personalty
pursuant to any such foreclosure.
3.2 Organizational Status. Grantor represents and warrants to
Beneficiary that Grantor is a profit corporation properly organized, validly
existing and in good standing under the laws of the State of Colorado, with all
necessary power and authority to execute, deliver and perform Grantor's
obligations under the Loan Documents, and is qualified to transact business in,
and is in good standing in, the State of Oregon.
3.3 Due Authorization. If Grantor is other than a natural person, then each
individual who executes this document on behalf of Grantor represents and
warrants to
-5-
Beneficiary that such execution has been authorized by all necessary corporate,
partnership or other action on the part of Grantor.
3.4 No Regulated Substances. Grantor represents and warrants to
Beneficiary that:
(a) No Regulated Substance is currently being generated,
used, treated, stored or disposed of on, in or under the Property that is in
material noncompliance with Environmental Laws;
(b) Neither Grantor nor, to the best of Grantor's knowledge
after due investigation, any other Person has ever caused or permitted any
Regulated Substance to be generated, placed, held, located or disposed of on,
under or in the Property that is in material noncompliance with Environmental
Laws;
(c) Neither Grantor nor, to the best of Grantor's knowledge
after due investigation, any other Person has ever used the Property as a dump
site, permanent or temporary storage site or transfer station for any Regulated
Substance that is in material noncompliance with Environmental Laws;
(d) Grantor has received no notice of, and is not aware of,
any actual or alleged violation of any Environmental Law materially affecting
the Property or any activity conducted on the Property; and
(e) No action or proceeding is pending or, to Grantor's
knowledge after due investigation, before or appealable from any court,
quasi-judicial body or administrative agency relating to the enforcement of any
Environmental Law affecting the Property or any activity conducted on the
Property.
Grantor will indemnify Beneficiary against and hold Beneficiary harmless from
any loss, claim, damage or expense, including reasonable attorneys' fees and
other out of pocket litigation expenses, incurred by Beneficiary in connection
with any claim that any of the matters represented and warranted by Grantor in
this section are inaccurate or untrue. The indemnity provided for in the
preceding sentence is a part of the Secured Obligations but will survive payment
or performance of the other Secured Obligations and the release, foreclosure or
other discharge of this Deed of Trust.
3.5 Non-Agricultural Property. Grantor represents and warrants
to Beneficiary that the Property is not used principally for agricultural or
farming purposes.
-6-
3.6 No Susceptibility to Forfeiture. Grantor represents and warrants
to Beneficiary that Grantor is not engaged, and has not at any time since
Grantor's acquisition of the Property been engaged, in a "pattern of
racketeering activity" within the meaning of 18 U.S.C. ss. 1961, as amended, or
within the meaning of any similar state or federal law, nor has Grantor
committed any other act or engaged in any other pattern of actions, the
potential results of which might include forfeiture of Grantor's interest in the
Property.
3.7 Compliance with Laws. Grantor represents and warrants to
Beneficiary that the Property and Grantor's present and proposed use of the
Property are in compliance in all material respects with all applicable laws,
ordinances and other governmental requirements.
3.8 No Conflict with Other Agreements. Grantor represents and
warrants to Beneficiary that Grantor's execution and delivery of the Loan
Documents does not conflict with, violate or constitute a default under any
other agreement by which Grantor or any part of the Property, the Chattels or
the Intangible Personalty are bound.
3.9 No Material Litigation. Grantor hereby represents and warrants
that, except as disclosed in the Credit Agreement, there is no pending, or to
the Grantor's knowledge, threatened action or proceeding affecting the Grantor
or any of its properties or business activities before any court, governmental
agency or arbitrator, in which there is a reasonable possibility of a Material
Adverse Effect or which purports to affect the legality, validity or
enforceability of this Deed of Trust.
3.10 Accurate Financial Information. Grantor hereby represents and
warrants that the unaudited pro forma consolidated balance sheets of the Grantor
(and others) as at December 31, 1996, and the related consolidated statements of
income and retained earnings of the Grantor (and others) for the fiscal year
then ended, as disclosed in the proxy statement mailed to the Grantor's
shareholders in connection with the Circuit Test Acquisition, and the unaudited
balance sheets of the Grantor (and others) as at June 30, 1997, and the related
consolidated statements of income and retained earnings of the Grantor (and
others) for the fiscal quarter then ended, copies of which have been furnished
to the Banks, fairly present the financial condition of the Grantor (and others)
as at such date and the results of the operations of the Grantor (and others)
for the period ended on such date, all in accordance with Regulation S-X
promulgated under the Securities Exchange Act of 1934, and since December 31,
1996, there has been no material adverse change in such condition or operations
except as disclosed in the Credit Agreement.
-7-
ARTICLE 4
GRANTOR'S AFFIRMATIVE COVENANTS
4.1 Payment of Notes. Pursuant to the terms of the Loan Documents,
Grantor will cause all principal, interest and other sums payable under the
Notes to be paid (on or before the expiration of any applicable grace period) as
set forth under the terms of the Loan Documents.
4.2 Performance of Other Obligations. Grantor will promptly and
strictly perform and comply with (or cause to be performed and complied with)
all other covenants, conditions and prohibitions required by Grantor by the
terms of the Loan Documents.
4.3 Waiver of Homestead and Other Exemptions. Grantor hereby waives
all rights to any homestead or other exemption to which Grantor would otherwise
be entitled under any present or future constitutional, statutory or other
provision of Oregon or other state or federal law.
4.4 Payment of Taxes. Grantor hereby covenants to pay its Debt in
excess of $1,000,000 and other obligations in accordance with their terms and
pay and discharge promptly all Federal and material State and local taxes, and
all material governmental assessments and charges or levies imposed upon any
such Person or upon such Person's income or profits or in respect of its assets
or business, or in any event before the same shall become delinquent or in
default, as well as all lawful claims for labor, materials and supplies or
otherwise which, if unpaid, might give rise to a Lien upon such properties or
any part thereof; provided, however, that such payment and discharge shall not
be required so long as the validity or amount thereof shall be contested in good
faith by appropriate proceedings and the Grantor shall have set aside on its
books adequate reserves in accordance with GAAP with respect thereto.
4.5 Other Encumbrances. Grantor will promptly and strictly perform
and comply with all covenants, conditions and prohibitions required of Grantor
in connection with any other encumbrance affecting the Property, or any part
thereof, regardless of whether such other encumbrance is superior or subordinate
to the lien hereof.
4.6 Maintenance of Insurance.
(a) Grantor shall maintain the third-party insurance
required by the Credit Agreement, provided, however, that in no event shall such
insurance be for an amount less than the the replacement cost of the assets so
insured, including the Property.
-8-
(b) Renewal Policies. Not less than 30 days prior to the
expiration date of each insurance policy required pursuant to paragraph (a)
above, Grantor will deliver to Beneficiary an appropriate renewal policy (or a
certified copy thereof), together with evidence satisfactory to Beneficiary that
the applicable premium has been prepaid. Without limiting the obligations of the
Grantor under this Section 4.6, in the event the Grantor fails to maintain the
insurance required by the foregoing provisions of this Section 4.6, then the
Beneficiary may, but shall have no obligation to, procure insurance covering the
interests of the Banks, in such amounts and against such risks as the
Beneficiary shall deem appropriate, and the Grantor will reimburse the
Beneficiary in respect of any premiums paid by the Beneficiary as provided in
the Credit Agreement.
(c) Any insurance proceeds received by Beneficiary with
respect to an insured casualty may, in accordance with the terms of the Credit
Agreement, either (i) be retained and applied by Beneficiary toward payment of
the Secured Obligations, or (ii) be paid over, in whole or in part to the
Grantor to pay for repairs or replacements necessitated by the casualty;
provided, that if all of the Secured Obligations have been performed or are
discharged by the application of less than all of such insurance proceeds, then
any remaining proceeds will be paid over to Grantor. The Beneficiary will have
no obligation to see to the proper application of any insurance proceeds paid
over to Grantor nor will any such proceeds received by Beneficiary bear interest
or be subject to any other charge for the benefit of Grantor. Beneficiary may,
prior to the application of insurance proceeds, commingle them with
Beneficiary's own funds and otherwise act with regard to such proceeds as
Beneficiary may determine in Beneficiary's sole discretion.
(d) Successor's Rights. Any Person who acquires title to the
Property through foreclosure of this Deed of Trust will succeed to all of
Grantor's rights under all policies of insurance maintained pursuant to this
section.
(e) WARNING. UNLESS YOU PROVIDE US WITH EVIDENCE OF THE
INSURANCE COVERAGE AS REQUIRED BY OUR CONTRACT OR LOAN AGREEMENT, WE MAY
PURCHASE INSURANCE AT YOUR EXPENSE TO PROTECT OUR INTEREST. THIS INSURANCE MAY,
BUT NEED NOT, ALSO PROTECT YOUR INTEREST. IF THE COLLATERAL BECOMES DAMAGED, THE
COVERAGE WE PURCHASE MAY NOT PAY ANY CLAIM YOU MAKE OR ANY CLAIM MADE AGAINST
YOU. YOU MAY LATER CANCEL THIS COVERAGE BY PROVIDING EVIDENCE THAT YOU HAVE
OBTAINED PROPERTY COVERAGE ELSEWHERE.
-9-
4.7 Payment of Utilities. Grantor will pay before delinquency all charges
for water, sewer, electricity, natural gas and other utilities serving the
Property.
4.8 Maintenance and Repair of Property. Grantor will at all times
maintain the Property in good condition and repair, ordinary wear and tear
excepted, will diligently prosecute the completion of any building or other
improvement that is at any time in the process of construction on the Property,
and will promptly repair, restore, replace or rebuild any material part of the
Property that may be affected by any casualty or any public or private taking of
or injury to the Property. Beneficiary and any Person authorized by Beneficiary
may enter and inspect the Property at all reasonable times.
4.9 Compliance with Laws. Grantor will comply in all material
respects with all statutes, ordinances and other governmental or
quasi-governmental requirements and private covenants relating to the ownership,
construction, use or operation of the Property, including but not limited to all
material Environmental Laws; provided, that so long as Grantor is not otherwise
in default hereunder, Grantor may upon providing Beneficiary with security
reasonably satisfactory to Beneficiary ,proceed diligently and in good faith to
contest the validity or applicability of any such statute, ordinance,
requirement or covenant. Whether or not Grantor elects to contest such validity
or applicability, Grantor will notify Beneficiary promptly of any apparent or
alleged violation of any material statute, ordinance, requirement or covenant,
and will provide Beneficiary promptly with copies of all notices, pleadings and
other communications relating to any such violation.
4.10 Performance of Lease Obligations. Grantor will perform promptly
all of Grantor's obligations under or in connection with each present and future
lease of all or any part of the Property. If Grantor receives at any time any
written communication from the tenant under any such lease asserting a default
by Grantor under such lease, or purporting to terminate or cancel such lease,
Grantor will promptly forward a copy of such communication (and any subsequent
communications relating thereto) to Beneficiary.
4.11 Eminent Domain; Private Damage. If all or any part of any
property encumbered by this Deed of Trust is taken or damaged by eminent domain
or any other public or private action, Grantor will notify Beneficiary promptly
of the time and place of all meetings, hearings, trials and other proceedings
relating to such action. Beneficiary may participate in all negotiations and
appear and participate in all judicial or arbitration proceedings concerning any
award or payment that may be due as a result of such taking or damaging, and
may, after an event of default has occurred, in Beneficiary's sole discretion,
compromise or settle, in the names of both Beneficiary and Grantor, any claim
for any such award or payment. Any such award or
-10-
payment is to be paid to Beneficiary and will be applied first to reimburse
Beneficiary for all costs and expenses, including attorneys' fees, incurred by
Beneficiary in connection with the ascertainment and collection of such award or
payment. The balance, if any, of such award or payment may, in Beneficiary's
sole discretion, either (a) be retained by Beneficiary and applied toward the
Secured Obligations, but only if any Event of Default has occurred, or (b) be
paid over, in whole or in part and subject to such conditions as Beneficiary may
impose, to Grantor for the purpose of restoring, repairing or rebuilding any
part of the encumbered property affected by the taking or damaging. Beneficiary
will have no duty to see to the application of any part of any award or payment
released to Grantor. Grantor's duty to pay the Notes in accordance with the
terms of the Loan Documents and to perform the other Secured Obligations will
not be suspended by the pendency or discharged by the conclusion of any
proceedings for the collection of any such award or payment, and any reduction
in the Secured Obligations resulting from Beneficiary's application for any such
award or payment will take effect only when Beneficiary receives such award or
payment. If this Deed of Trust has been foreclosed prior to Beneficiary's
receipt of such award or payment, Beneficiary may nonetheless retain such award
or payment to the extent required to reimburse Beneficiary for all out of pocket
costs and expenses, including reasonable attorneys' fees, incurred in connection
therewith, and to discharge any deficiency remaining with respect to the Secured
Obligations.
4.12 Mechanics' Liens. Grantor will keep the Property free and clear
of all liens and claims of liens by contractors, subcontractors, mechanics,
laborers, materialmen and other such Persons, and will cause any recorded
statement of any such lien to be released of record within 30 days after the
recording thereof. Notwithstanding the preceding sentence, however, Grantor will
not be deemed to be in default under this section if and so long as Grantor (a)
contests in good faith the validity or amount of any asserted lien and
diligently prosecutes or defends an action appropriate to obtain a binding
determination of the disputed matter, and (b) provides Beneficiary with such
security as Beneficiary may reasonably require to protect Beneficiary against
all out-of-pocket loss, damage and expense, including reasonable attorneys'
fees, that Beneficiary might incur if the asserted lien is determined to be
valid. Grantor will indemnify Beneficiary against and hold Beneficiary harmless
from any out-of-pocket loss, damage or expense, including reasonable attorneys'
fees and other out-of-pocket litigation expenses, incurred by Beneficiary as a
result of any default by Grantor under this section, and Grantor's obligations
under this sentence shall survive foreclosure of this Deed of Trust.
4.13 Environmental Claims. Grantor will indemnify Beneficiary against
and hold Beneficiary harmless from any out-of-pocket loss, damage or expense,
including reasonable attorneys' fees and other expenses, incurred by Beneficiary
in connection with the investigation, defense or settlement of any claim,
whether or not valid and whether asserted by a governmental
-11-
agency or a private party, that (a) any part of the Property is contaminated or
otherwise affected by the presence of any Regulated Substance, or (b) the
Property or any activity conducted at any time on the Property is wholly or
partly responsible for the presence elsewhere of any Regulated Substance, or in
connection with any cleanup or other remediation actions that may be imposed on
or agreed to by Beneficiary in connection with any such claim. The indemnity
provided for in this section is a part of the Secured Obligations but will
survive payment or performance of the other Secured Obligations and the release,
foreclosure or other discharge of this Deed of Trust.
4.14 Defense of Actions. Grantor will defend, at Grantor's expense,
any action, proceeding or claim that affects any property encumbered hereby or
any interest of Beneficiary in such property or in the Secured Obligations, and
will indemnify and hold Beneficiary harmless from all out-of-pocket loss,
damage, cost or expense, including reasonable attorneys' fees, that Beneficiary
may incur in connection therewith.
4.15 Expenses of Enforcement. Grantor will pay on demand all
out-of-pocket costs and expenses, including but not limited to reasonable
attorneys' fees, appraisal costs and expenses for title insurance and title
searches and certificates, that Beneficiary may incur in connection with any
effort or action (whether or not litigation or foreclosure is involved) to
enforce or defend Beneficiary's rights and remedies under any of the Loan
Documents, or to secure title to or possession of, or to realize on, any
security for the Secured Obligations.
4.16 Book and Records; Financial Reports. Grantor shall maintain all
financial records in accordance with GAAP and permit, after two weeks notice
unless an Event of Default has occurred, any Beneficiary employees or other
representatives approved by the Beneficiary (which approval shall not be
unreasonably withheld) that is designated by the Beneficiary or the Required
Banks to visit and inspect the properties of the Grantor, and to inspect
Grantor's financial and business records and make extracts there from and copies
thereof, all at reasonable times and in a manner so as not to unreasonably
disrupt the operations of the Grantor and as often as reasonably requested, and
permit any such employees or representatives to discuss the affairs, finances
and condition of the Grantor with the officers and other representatives
thereof, including the Grantor's independent accountants if a representative of
the Grantor is present and if the Beneficiary has notified the Grantor not less
than 24 hours prior to such meeting of the issues that will be discussed.
Grantor shall deliver those financial statements required to be delivered by it
under the Credit Agreement.
4.17 Priority of Leases. To the extent Grantor has the right, under the
terms of any existing lease of all or any part of the Property, to make such
lease subordinate to the lien of this
-12-
Deed of Trust, Grantor will, at Beneficiary's request and expense, take such
action as may be required to effect such subordination. Conversely, Grantor
will, at Beneficiary"s request and Grantor's expense, take such action as may be
necessary to subordinate the lien hereof to any future lease of all or any part
of the Property designated by Beneficiary.
4.18 Further Assurances; Estoppel Certificates. Grantor will execute
and deliver to Beneficiary on demand, and pay the out-of-pocket costs of
preparation and recording thereof, any further documents that Beneficiary may
reasonably request to confirm or perfect the liens and security interests
created or intended to be created hereby, or to confirm or perfect any evidence
of the Secured Obligations. Grantor will also within ten days after any request
by Beneficiary, deliver to Beneficiary a signed and acknowledged statement
certifying to Beneficiary, or to any proposed transferee of the Secured
Obligations, (a) the balance of principal, interest and other sums then
outstanding under the Notes, and (b) whether Grantor claims to have any offsets
or defenses with respect to the Secured Obligations and, if so, the nature of
such offsets or defenses. Grantor's failure to provide such a statement within
such ten-day period will result in Grantor being conclusively bound by any
representation that Beneficiary may make as to those matters.
ARTICLE 5
GRANTOR'S NEGATIVE COVENANTS
5.1 Waste and Alterations. Grantor will not commit or permit any
waste with respect to the Property, nor will Grantor cause or permit any
material part of the Property, including but not limited to any building,
structure, parking lot, driveway, landscape scheme, timber, or other ground
improvement, to be removed, demolished or materially altered without the prior
written consent of Beneficiary, other than such items which are either (i)
obsolete and no longer necessary for the conduct of Grantor's business, or (ii)
promptly replaced with a similar item of equal or greater value.
5.2 Zoning and Private Covenants. Grantor will not initiate, join in
or consent to any change in any zoning ordinance or classification, any change
in the "zone lot" or "zone lots" (or similar zoning unit or units) presently
comprising the Property, any transfer of development rights, any change in any
private restrictive covenant, or any change in any other public or private
restriction limiting or defining the uses that may be made of the Property or
any part thereof, without the express written consent of Beneficiary. If under
applicable zoning provisions the use of all or any part of the Property is or
becomes a nonconforming use, Grantor will not cause or permit such use to be
discontinued or abandoned without the express written consent of Beneficiary.
-13-
5.3 Additional Tax Burden. Except with the prior written consent of
Beneficiary, Grantor will not initiate, join in or consent to any action or
proposal to include all or any part of the Property in any special improvement
district or other special district or taxing authority that does not include the
Property on the date of this Deed of Trust.
5.4 Interference with Leases. Grantor will neither do nor neglect to
do anything that may cause or permit the termination of any lease of all or any
part of the Property, or cause or permit the withholding or abatement of any
rent payable under any such lease. Except with the prior written consent of
Beneficiary, Grantor will not (a) collect rent from all or any part of the
Property for more than one month in advance, (b) modify any lease of all or any
part of the Property, (c) assign the rents from the Property or any part
thereof, or (d) consent to the cancellation or surrender of all or any part of
any such lease, except that Grantor may in good faith terminate any such lease
for nonpayment of rent or other material breach by the tenant.
5.5 Transfer of Property. Grantor will not convey, lease or otherwise
transfer, either voluntarily or involuntarily, the Property or any part thereof
or interest therein, without the prior written consent of Beneficiary. If
Beneficiary consents to any transfer otherwise prohibited by this section,
Beneficiary may condition such consent on changes in the terms for payment of
the Secured Obligations, including but not limited to an increase in the
interest rate borne by the Notes, a reduction in the term of the Notes, or both.
5.6 Further Encumbrance of Property. Except for Permitted Liens, Grantor
will neither create nor permit any junior lien or encumbrance against the
Property, other than a mortgage or deed of trust in which the mortgagee or
beneficiary
i. expressly acknowledges the priority of this Deed of Trust, as to all
amounts then or at any time thereafter advanced hereunder or secured hereby,
over any lien or security interest created by such junior mortgage or deed of
trust, and
ii. expressly agrees that no foreclosure or other enforcement proceeding
under such mortgage or deed of trust will be effective to terminate any lease of
all or any part of the Property, regardless of the relative priorities of such
junior mortgage or deed of trust and such lease.
Any Person who acquires or records any lien or encumbrance against the Property
after the recording of this Deed of Trust will be deemed to have agreed to, and
will be bound by, the foregoing requirements, whether or not the document or
documents relating to such lien or encumbrance reflect that agreement.
-14-
5.7 Use of Regulated Substances. Grantor will not cause or permit all
or any part of the Property to be used to manufacture, generate, store,
transfer, treat, recycle or dispose of any Regulated Substance, except in
compliance with any Environmental Law, nor will Grantor cause or permit, as a
result of any intentional or unintentional act on the part of Grantor or any
tenant, subtenant or other user or occupant of the Property, any release of any
Regulated Substance onto the Property or from the Property onto other property.
Grantor will indemnify Beneficiary against, and hold Beneficiary harmless from,
any out-of-pocket loss, claim, damage or expense, including reasonable
attorneys' fees and other litigation expenses, incurred by Beneficiary in
connection with any actual or alleged violation of the preceding sentence. Such
indemnity is a part of the Secured Obligations but will survive payment or
performance of the other Secured Obligations and the release, foreclosure or
other discharge of this Deed of Trust.
5.8 Change of Name. Grantor shall not, except upon not less than 30
days prior written notice to the Beneficiary, change the address at which the
Grantor maintains its chief executive offices and principal place of business;
nor conduct its business activities under any names other than those set forth
in the Credit Agreement unless the Grantor notifies the Beneficiary of any such
new name not less than 30 days prior to beginning use of such new name, except
that no more than seven days notice shall be required in the case of a new name
resulting from an acquisition of a business or assets by the Grantor.
5.9 Improper Use of Property. Grantor will not use the Property for
any purpose or in any manner that violates any applicable law, ordinance or
other governmental requirement, the requirements or conditions of any insurance
policy, or any private covenant.
ARTICLE 6
EVENTS OF DEFAULT
Each of the following events will constitute a default under this
Deed of Trust and under each of the other Loan Documents:
6.1 Failure to Pay Notes. Pursuant to the terms of the Loan Documents, the
occurrence of any failure to make any payment when due under the terms of the
respective Notes pursuant to the terms of the Loan Documents.
6.2 Violation of Other Covenants. The occurrence of any failure to
perform or observe any other covenant, condition or prohibition contained in any
of the Loan Documents which failure is not cured within fifteen (15) days after
Grantor's receipt of written notice thereof from Grantor;
-15-
6.3 Misrepresentation or Breach of Warranty. Beneficiary's determination
that any statement or warranty contained in any of the Loan Documents is untrue
or misleading in any material respect as of the date made;
6.4 Acts Threatening Forfeiture. Beneficiary's reasonable
determination that Grantor has committed any act or engaged in any pattern of
actions that may lead to a claim for forfeiture of Grantor's interest in the
Property, it being agreed that the issuance of any criminal complaint or
indictment charging Grantor with any such act or pattern of actions would be a
sufficient basis for such a determination by Beneficiary if one of the penalties
for such complaint or indictment is forfeiture of property;
6.5 Assertion of Priority. The assertion (except by the owner of an
encumbrance expressly excepted from Grantor's warranty of title herein) of any
claim of priority over this Deed of Trust by title, lien or otherwise, unless
Grantor within 30 days after such assertion either causes the assertion to be
withdrawn or provides Beneficiary with such security as Beneficiary may require
to protect Beneficiary against all loss, damage or expense, including attorneys,
fees, that Beneficiary may incur in the event such assertion is upheld; or
6.6 Event of Default Under Credit Agreement. An "Event of Default" (as such
term is defined in the Credit Agreement) has occurred and is continuing.
ARTICLE 7
BENEFICIARY'S REMEDIES
Immediately upon or at any time after the occurrence of any event of
default hereunder, Beneficiary may exercise any remedy available at law or in
equity, including but not limited to those listed below and those listed in the
other Loan Documents, in such sequence or combination as Beneficiary may
determine in Beneficiary's sole discretion:
7.1 Performance of Defaulted Obligations. Beneficiary may make any
payment or perform any other obligation under the Loan Documents that Grantor
has failed to make or perform, and Grantor hereby irrevocably appoints
Beneficiary as the true and lawful attorney-in-fact for Grantor to make any such
payment and perform any such obligation in the name of Grantor. All out of
pocket payments made and expenses (including reasonable attorneys' fees)
incurred by Beneficiary in this connection, together with interest thereon at
the Default Rate from the date paid or incurred until repaid, will be part of
the Secured Obligations and will be
-16-
immediately due and payable by Grantor to Beneficiary. In lieu of advancing
Beneficiary's own funds for such purposes, Beneficiary may use any funds of
Grantor that may be in Beneficiary's possession, including but not limited to
insurance or condemnation proceeds and amounts deposited for taxes, insurance
premiums or other purposes.
7.2 Specific Performance and Injunctive Relief. Notwithstanding the
availability of legal remedies, Beneficiary will be entitled to obtain specific
performance, mandatory or prohibitory injunctive relief or other equitable
relief requiring Grantor to cure or refrain from repeating any default.
7.3 Acceleration of Secured Obligations. Beneficiary may, upon notice to
Grantor, declare all of the Secured Obligations immediately due and payable in
full.
7.4 Suit for Monetary Relief. With or without accelerating the
maturity of the Secured Obligations, Beneficiary may xxx from time to time for
any payment due under any of the Loan Documents, or for money damages resulting
from Grantor's default under any of the Loan Documents.
7.5 Possession of Property. To the extent permitted by applicable
law, Beneficiary may enter and take possession of the Property without seeking
or obtaining the appointment of a receiver, may employ a managing agent for the
Property and may lease or rent all or any part of the Property, either in
Beneficiary's name or in the name of Grantor, and may collect the rents, issues
and profits of the Property. Any revenues collected by Beneficiary under this
section will be applied first toward payment of all out of pocket expenses
(including reasonable attorneys' fees) incurred by Beneficiary, together with
interest thereon at the Default Rate from the date incurred until repaid, and
the balance, if any, will be applied against the Secured Obligations.
7.6 Enforcement of Security Interests. Beneficiary may exercise all
rights of a secured party under the Oregon Uniform Commercial Code with respect
to the Chattels and the Intangible Personalty, including but not limited to
taking possession of, holding and selling the Chattels and enforcing or
otherwise realizing on any accounts and general intangibles. Any requirement for
reasonable notice of the time and place of any public sale, or of the time after
which any private sale or other disposition is to be made, will be satisfied by
Beneficiary's giving of such notice to Grantor at least ten days prior to the
time of any public sale or the time after which any private sale or other
intended disposition is to be made. To the extent permitted by applicable law,
Beneficiary may, at Beneficiary's option, cause Trustee to sell any or all of
the Chattels, the Intangible Personalty or other personal property as part of
the sale of the Property, without making any distinction between real and
personal property.
-17-
7.7 Foreclosure Against Property. Upon the occurrence of any event of
default, Beneficiary shall have the right to have Trustee sell the Property in
accordance with the Oregon Revised Statutes 86.705 et seq. at public auction to
the highest bidder. Any person except Trustee may bid at the Trustee's sale. The
power of sale is conferred by this Deed of Trust and the law shall not be an
exclusive remedy. When such power of sale is not exercised, Beneficiary may
foreclose this Deed of Trust as a mortgage. Trustee is not obligated to notify
any party hereto of a pending sale under any other deed of trust or of any
action or proceeding in which Grantor, Trustee, or Beneficiary shall be a party,
unless such action or proceeding is brought by Trustee. Should Beneficiary elect
to foreclose by exercise of the power of sale herein contained, Beneficiary
shall notify Trustee and shall deposit with Trustee this Deed of Trust and the
Notes and such receipts and evidence of expenditures made and secured hereby as
Trustee may require.
(a) Upon receipt of such notice from Beneficiary, Trustee
shall cause to be given such Notice of Default as then required by law. Trustee
shall, without demand on Grantor, after lapse of such time as may then be
required by law and after Notice of Sale and Notice of Foreclosure having been
given as required by law, sell the Property at the time and place of sale fixed
by it in such Notice of Sale and Notice of Foreclosure, either as a whole, or in
separate lots or parcels or items as Trustee shall deem expedient, 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 the time of sale. Trustee shall
deliver to such purchaser or purchasers thereof its good and sufficient deed or
deeds conveying the property so sold, but without any covenant or warranty,
express or implied. The recitals in such deed of any matters or facts shall be
conclusive proof of the truthfulness thereof.
(b) After deducting all costs, fees and expenses of Trustee
and of this Trust, including costs of evidence of title and reasonable counsel
fees in connection with sale, Trustee shall apply the proceeds of sale to
payment of all sums expended under the terms hereof, not then repaid, with
accrued interest, all other sums then secured hereby and the remainder, if any,
shall be paid into court in the manner provided by law.
7.8 Appointment of Receiver. To the extent permitted by applicable
law, Beneficiary shall be entitled, as a matter of absolute right and without
regard to the value of any security for the Secured Obligations or the solvency
of any Person liable therefor, to the appointment of a receiver for the Property
as set forth in this Section 7.8. Beneficiary shall be entitled to such
appointment on ex parte application to any court of competent jurisdiction.
Grantor waives any right to any hearing or notice of hearing prior to the
appointment of a receiver. Such receiver and his agents shall be empowered (a)
to take possession of the Property
-18-
and any businesses conducted by Grantor or any other Person thereon and any
business assets used in connection therewith, (b) to exclude Grantor and
Grantor's agents, servants and employees from the Property, or, at the option of
the receiver, in lieu of such exclusion, to collect a fair market rental from
any such Persons occupying any part of the Property, (c) to collect the rents,
issues, profits and income therefrom, (d) to complete any construction that may
be in progress, (e) to do such maintenance and make such repairs and alterations
as the receiver deems necessary, (f) to use all stores of materials, supplies
and maintenance equipment on the Property and replace such items at the expense
of the receivership estate, (g) to pay all taxes and assessments against the
Property and the Chattels, all premiums for insurance thereon, all utility and
other operating expenses, and all sums due under any prior or subsequent
encumbrance, (h) to borrow from Beneficiary such funds as may reasonably be
necessary to the effective exercise of the receiver's powers, on such terms as
may be agreed upon by the receiver and Beneficiary, and (i) generally to do
anything that Grantor could legally do if Grantor were in possession of the
Property. All out of pocket expenses incurred by the receiver or his agents,
including obligations to repay funds borrowed by the receiver, shall constitute
a part of the Secured Obligations. Any revenues collected by the receiver shall
be applied first to the expenses of the receivership, including reasonable
attorneys' fees incurred by the receiver and by Beneficiary, together with
interest thereon at the Default Rate from the date incurred until repaid, and
the balance shall be applied toward the Secured Obligations or in such other
manner as the court may direct. Unless sooner terminated with the express
consent of Beneficiary, any such receivership will continue until the Secured
Obligations have been discharged in full, or until title to the Property has
passed after foreclosure sale and all applicable periods of redemption have
expired.
ARTICLE 8
MISCELLANEOUS PROVISIONS
8.1 Replacement of Trustee. Beneficiary may at any time, with or
without cause, elect to replace the Trustee named at the beginning of this Deed
of Trust. Beneficiary may exercise such election by notifying Trustee of such
replacement, signing and acknowledging an instrument appointing a successor
Trustee and recording such instrument in the real property records of the County
in which the Property is located. Any such successor Trustee may be replaced by
Beneficiary in the same manner. If (and only if) Beneficiary exercises the right
to replace the Trustee originally named, the following provisions shall become
applicable:
(a) Trustee will not be liable for any error in judgment or
for any act done in good faith by Trustee, nor will Trustee be otherwise
accountable or responsible, except for Trustee's own bad faith or willful
misconduct, under any circumstances whatever. Trustee will
-19-
not be personally liable, in the event Trustee or any other Person acting under
the powers granted Trustee under this Deed of Trust enters or takes possession
of the Property, for debts contracted or for liability or damages incurred in
the management or operation of the Property. Trustee may rely absolutely on any
document, instrument or signature purporting to authorize or support any action
by Trustee under this Deed of Trust which Trustee believes in good faith to be
genuine. Grantor will from time to time pay Trustee all compensation due Trustee
under this Deed of Trust, will reimburse Trustee for all expenses, including
attorneys' fees, incurred by Trustee in the performance of Trustee's duties
under this Deed of Trust, and will indemnify Trustee and hold Trustee harmless
against any loss, claim, damage or expense incurred by Trustee in connection
with the performance of such duties.
(b) Any funds received by Trustee shall, until used or
applied as provided in this Deed of Trust, be held in trust for the purposes for
which they were received. Except to the extent required by law, such funds need
not be segregated from other funds held in trust by Trustee. In no event shall
Trustee or Beneficiary be liable to pay interest on any funds held by Trustee.
(c) Trustee may resign by giving 30 days' notice of
resignation in writing to
Beneficiary.
(d) Any successor Trustee appointed pursuant to this section
will, without further act, deed or conveyance, automatically become vested with
all of the rights, powers, interests and trusts which had been held by such
successor Trustee's predecessor, with the same effect as though the successor
Trustee had originally been named Trustee in this Deed of Trust. Nevertheless,
at the request of Beneficiary or of the successor Trustee, the former Trustee
shall execute and deliver to the successor Trustee an instrument in recordable
form, transferring to the successor Trustee all of the former Trustee's rights,
powers, interests and trusts under this Deed of Trust, and shall also transfer
and deliver to the successor Trustee any property or funds held by the former
Trustee in the former Trustee's capacity as trustee under this Deed of Trust.
(e) Trustee may authorize one or more Persons to act on
Trustee's behalf in the performance of ministerial acts under this Deed of
Trust, including but not limited to the transmittal and posting of notices.
8.2 Time of the Essence. Time is of the essence with respect to
all provisions of the Loan Documents.
-20-
8.3 Joint and Several Obligations. If Grantor is more than one
Person, then all Persons comprising Grantor are jointly and severally liable for
all of the Secured Obligations.
8.4 Rights and Remedies Cumulative. Beneficiary's rights and remedies
under each of the Loan Documents are cumulative of the rights and remedies
available to Beneficiary under each of the other Loan Documents and those
otherwise available to Beneficiary at law or in equity. No act of Beneficiary
shall be construed as an election to proceed under any particular provision of
any Loan Document to the exclusion of any other provision in the same or any
other Loan Document, or as an election of remedies to the exclusion of any other
remedy that may then or thereafter be available to Beneficiary.
8.5 No Implied Waivers. Beneficiary shall not be deemed to have
waived any provision of any Loan Document unless such waiver is in writing and
is signed by Beneficiary. Without limiting the generality of the preceding
sentence, neither Beneficiary's acceptance of any payment with knowledge of a
default by Grantor, nor any failure by Beneficiary to exercise any remedy
following a default by Grantor, shall be deemed a waiver of such default, and no
waiver by Beneficiary of any particular default on the part of Grantor shall be
deemed a waiver of any other default or of any similar default in the future.
8.6 Dealings with Successor Owners. If the Property or any interest
in the Property is transferred to any Person other than Grantor, whether
voluntarily or involuntarily and whether or not Beneficiary has consented to
such transfer, then Beneficiary may deal with such successor owner in all
matters relating to the Secured Obligations, and no such dealings, including but
not limited to any change in the terms of the Secured Obligations, will be
deemed to discharge or impair the obligations of Grantor to Beneficiary under
the Loan Documents.
8.7 No Third Party Rights. No Person shall be a third party
beneficiary of any provision of any of the Loan Documents. All provisions of the
Loan Documents favoring Beneficiary are intended solely for the benefit of
Beneficiary, and no third party shall be entitled to assume or expect that
Beneficiary will not waive or consent to modification of any such provision in
Beneficiary's sole discretion.
8.8 Preservation of Liability and Priority. Without affecting the
liability of Grantor or of any other Person (except a Person expressly released
in writing) for payment and performance of all of the Secured Obligations, and
without affecting the rights of Beneficiary with respect to any security not
expressly released in writing, and without impairing in any way the priority of
this Deed of Trust over the interests of any Person acquired or first evidenced
by recording subsequent to the recording hereof, Beneficiary may, either before
or after the maturity
-21-
of the Note, and without notice or consent: (a) release any Person liable for
payment or performance of all or any part of the Secured Obligations; (b) make
any agreement altering the terms of payment or performance of all or any of the
Secured Obligations; (c) exercise or refrain from exercising, or waive, any
right or remedy that Beneficiary may have under any of the Loan Documents; (d)
accept additional security of any kind for any of the Secured Obligations; or
(e) release or otherwise deal with any real or personal property securing the
Secured Obligations. Any Person acquiring or recording evidence of any interest
of any nature in the Property, the Chattels or the Intangible Personalty shall
be deemed, by acquiring such interest or recording any evidence thereof, to have
agreed and consented to any or all such actions by Beneficiary.
8.9 Subrogation of Beneficiary. Beneficiary shall be subrogated to
the lien of any previous encumbrance discharged with funds advanced by
Beneficiary under the Loan Documents, regardless of whether such previous
encumbrance has been released of record.
8.10 Notices. Any notice required or permitted to be given by Grantor
or Beneficiary under any of the Loan Documents must be in writing and will be
deemed given on personal delivery or on the third business day after the mailing
thereof, by registered or certified United States mail, postage prepaid, to the
appropriate party at its address shown on the first page of this Deed of Trust.
Either party may change such party's address for notices by giving notice to the
other party in accordance with this section, but no such change of address will
be effective as against any Person without actual knowledge of the change.
8.11 Fixture Filing. This Deed of Trust is intended to serve as a
financing statement under the Oregon Uniform Commercial Code with respect to any
fixtures that may at any time be part of the Property or the Chattels, and the
recording of this Deed of Trust is intended to constitute a "fixture filing" for
purposes of such Uniform Commercial Code.
8.12 Defeasance. Upon payment and performance in full of all of the
Secured Obligations, Beneficiary will execute and deliver to Grantor such
documents as may be required to release this Deed of Trust of record.
8.13 Severability. Wherever possible, each provision of the Loan
Documents is to be interpreted so as to be effective and valid under applicable
law. If any provision of any Loan Document is, for any reason and to any extent,
invalid or unenforceable, then neither the remainder of the Loan Document in
which such provision appears, nor any other Loan Document, nor the application
of the provision to other Persons or in other circumstances, shall be affected
by such invalidity or unenforceability.
-22-
8.14 Reconveyance by Trustee. Upon written request of Beneficiary
stating that all sums secured hereby have been paid, and upon surrender of the
Notes to Trustee for cancellation and retention and upon payment by Grantor of
Trustee's fees, Trustee shall reconvey to Grantor, or the person or persons
legally entitled thereto, without warranty, any portion of the Property then
held hereunder. The recitals in such reconveyance of any matters or facts shall
be conclusive proof of the truthfulness thereof. The grantee in any reconveyance
may be described as "the person or persons legally entitled thereto."
8.15 Attorney's Fees. Wherever this Deed of Trust provides for
payment of attorney fees to the Beneficiary, such provision of attorneys fees
shall include, without limitation, the reasonable fees and disbursements of
attorneys in connection with proceedings in any trial court, appellate court, as
well as in any bankruptcy proceedings.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-23-
8.16 UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE
BY LENDER AFTER OCTOBER 3, 1989 CONCERNING LOANS AND OTHER CREDIT EXTENSIONS
WHICH ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY
THE BORROWER'S RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED
BY THE LENDER TO BE ENFORCEABLE.
8.17 Acceptance by Trustee. Trustee accepts this trust when this Deed
of Trust, duly executed and acknowledged, is made a public record as provided by
law.
Signed and delivered as of the date first mentioned above.
EFTC CORPORATION
an Colorado corporation
By /s/
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President
STATE OF COLORADO )
CITY AND) ss.
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 30th day of
September, 1997, by Xxxxxx X. Xxxxxxxxxx, as Vice President of EFTC CORPORATION,
a Colorado corporation..
My commission expires: August 18, 2001
Witness my hand and official seal.
/s/
Xxxxxxx X. Xxxxxx
Notary Public
-24-
EXHIBIT A
to
DEED OF TRUST AND SECURITY AGREEMENT
(Legal Description)
Parcel 2 of Partition Plat 97-52 in the City of Xxxxxxx,
recorded July 24, 1997 in Film 4, Pages 452-453, in Plat Records of Yamhill
County, Oregon.
A-1
EXHIBIT B
TO
DEED OF TRUST AND SECURITY AGREEMENT
(Permitted Exceptions)
1. Ten foot public utility easement along the West line as shown on
Partition Plat 97- 52.
B-1
