Exhibit 10(iv)
THIRD DEED OF TRUST
WITH ASSIGNMENT OF RENTS
This Deed of Trust, made this 1st day of December, 1999, between A-Z South State
Corporation, a Utah corporation as TRUSTOR, whose address is 000 Xxxx 000 Xxxxx,
Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx 00000 and FIRST AMERICAN TITLE INSURANCE
COMPANY, UTAH DIVISION, a California corporation, as TRUSTEE, and, Xxxxx Xxxxxx
Afridi, as BENEFICIARY,
Witnesses: That Trustor CONVEYS AND WARRANTS TO TRUSTEE IN TRUST, WITH POWER OF
SALE, the following described property, situated in Salt Lake County, State of
Utah:
Xxxx 00, 00, xxx 00, Xxxxx 0, Xxxxx Xxxx Street Addition, Plat "A",
according to the official plat thereof, as recorded in the office of
the County Recorder of said County.
Together with all buildings, fixtures and improvements thereon and all water
rights, rights of way, easements, rents, issues, profits, income, tenements,
hereditaments, privileges and appurtenances thereunto belonging, now or
hereafter used or enjoyed with said property, or any part thereof, SUBJECT,
HOWEVER, to the right, power an authority hereinafter given to and conferred
upon Beneficiary to collect and apply such rents, issues, and profits.
For the Purpose of Securing:
(1) Payment of the indebtedness evidenced by a promissory note of
even date hereof in the principal sum of $75,000.00, made by
Trustor(s), payable to the order of Beneficiary at the times,
in the manner and with interest as therein set forth, and any
extensions and/or renewals or modifications thereof, (2) the
performance of each agreement of Trustor herein contained; (3)
the payment of such additional loans or advances as hereafter
may be made to Trustor, or his successors or assigns, when
evidenced by a promissory note or notes reciting that they are
secured by this Deed of Trust; and (4) the payment of all sums
expended or advanced by Beneficiary under or pursuant to the
terms hereof, together with interest thereon as herein
provided.
To Protect The Security of This Deed of Trust, Trustor Agrees:
1. To keep said property in good condition and repair; not to remove or
demolish any building thereon; to complete or restore promptly and in good and
workmanlike manner any building which may be constructed, damaged or destroyed
thereon; to comply with all laws, covenants and restrictions affecting said
property; not to commit or permit waste thereof, not to commit, suffer or permit
any act upon said property in violation of law; to do all other acts which from
the character or use of said property may be reasonable necessary, the specific
enumerations herein not excluding the general; and, if the loan secured hereby
or any part thereof is being obtained for the purpose of financing construction
of improvements on said property Trustor further agrees:
(a) To commence construction promptly and to pursue same with
reasonable diligence to completion in accordance with plans and
specifications satisfactory to Beneficiary, and
(b) To allow Beneficiary to inspect said property at all times during
construction. Trustee, upon presentation to it of an affidavit
sighed by Beneficiary, setting forth facts showing a default by
Trustor under this numbered paragraph, is authorized to accept as
true and conclusive all facts and statements therein, and to act
thereon hereunder.
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2. To provide and maintain insurance, of such type or types and amounts
as Beneficiary may require, on the improvements now existing or hereafter
erected or placed on said property. Such insurance shall be carried in companies
approved by Beneficiary with loss payable clauses in favor of and in.form
acceptable to Beneficiary. In the event of loss, Trustor she give immediate
notice to Beneficiary, who may make proof of loss, and each insurance company
concerned is hereby authorized and directed to make payment for such loss
directly to Beneficiary, instead of to Trustor and Beneficiary jointly, and the
insurance proceeds, or any part thereof, may be applied by Beneficiary, at its
option, to the reduction of the indebtedness hereby secured or to the
restoration or repair of the property damaged. In the event that the Trustor
shall fail to provide satisfactory hazard insurance, the Beneficiary may
procure, on the Trustor's behalf, insurance in favor of the Beneficiary alone.
If insurance cannot be secured by the Trustor to provide the required coverage,
this will constitute an act of default under the terms of this Deed of Trust.
3. To deliver to, pay for and maintain with Beneficiary until the
indebtedness secured hereby is paid in full, such evidence of title as
Beneficiary may require, including abstracts of title or policies of title
insurance and any extensions or renewals thereof or supplements thereto.
4. To appear in and defend any action or proceeding purporting to
affect the security hereof, the title to said property, or the rights or powers
of Beneficiary or Trustee; and should Beneficiary or Trustee elect to appear in
or defend any such action or proceeding, to pay all costs and expenses,
including cost of evidence of title and attorney's fees in a reasonable sum
incurred by Beneficiary or Trustee.
5. To pay at least 10 days before delinquency all taxes and assessments
affecting said property, including all assessments upon water company stock and
all rents, assessments and charges for water, appurtenant to or used in
connection with said property; to pay, when due, all encumbrances, charges, and
liens with interest, on said property or any part thereof, which at any time
appear to be prior or superior hereto; to pay all costs, fees, and expenses of
this Trust.
6. To pay to Beneficiary monthly, in advance an amount, as estimated by
Beneficiary in its discretion, sufficient to pay all taxes and assessments
affecting said property, and all premiums on insurance therefor, as and when the
same shall become due. 7. Should Trustor fail to make any payment or to do any
act as herein provided, then Beneficiary or Trustee, but without obligation so
to do and without notice to or demand upon Trustor and without releasing Trustor
from any obligation hereof, may: Make or do the same in such manner and to such
extent as either may deem necessary to protect the security hereof, Beneficiary
or Trustee being authorized to enter upon said property for such purposes;
commence, appear in and defend any action or proceeding purporting to affect the
security hereof or the rights or powers of Beneficiary or Trustee; pay,
purchase, contest, or compromise any encumbrance, charge or lien which in the
judgment of either appears to be prior or superior hereto; and in exercising any
such powers, incur any liability, expend whatever amounts in its absolute
discretion it may deem necessary therefor, including cost of evidence of title,
employ counsel, and pa-y his reasonable fees.
8. To pay immediately and without demand all sums expended hereunder by
Beneficiary or Trustee, with interest from date of expenditure at the rate of
_____ per annum until paid, and the repayment thereof shall be secured hereby.
9. To pay to Beneficiary a "late charge," of not to exceed five cents
(5 ) for each One Dollar ($ 1.00) of each payment due hereunder or due pursuant
to the aforesaid promissory note of even date hereof which is more than fifteen
(15) days in arrears. This payment shall be made to cover the extra expense
involved in handling delinquent payments.
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IT IS MUTUALLY AGREED THAT:
10. Should said property or any part thereof be taken or damaged by
reason of any public improvement or condemnation proceeding, or damaged by fire,
or earthquake, or in any other manner, Beneficiary shall be entitled to all
compensation, awards, and other payments or relief therefor, and shall be
entitled at its option to commence, appear in and prosecute in its own name, any
action or proceedings, or to make any compromise or settlement, in connection
with such taking or damage. All such compensation, awards, damages, rights of
action and proceeds, including the proceeds of any policies of fire and other
insurance affecting said property, are hereby assigned to Beneficiary, who may,
after deducting therefrom all its expenses, including attorney's fees, apply the
same on any indebtedness secured hereby. Trustor agrees to execute such further
assignments of any compensation, award, damages, and rights of action and
proceeds as Beneficiary or Trustee may require.
11. At any time and from time to time upon written request of
Beneficiary, payment of its fees and presentation of this Deed of Trust and the
note for endorsement (in case of full reconveyance, for cancellation and
retention) without affecting the liability of any person for the payment of the
indebtedness secured hereby, and without releasing the interest of any party
joining in this Deed of Trust, Trustee may (a) consent to the making of any map
or plat of said property; (b) join in granting any easement or creating any
restriction thereon; (c) join in any subordination or other agreement affecting
this Deed of Trust or the lien or charge thereof, (d) grant any extension or
modification of the terms of this loan; (e) reconvey, without warranty, all or
any part of said property. The grantee in any reconveyance may be described as
"the persons entitled thereto", and the recitals therein of any matters of facts
shall be conclusive proof of the truthfulness thereof. Trustor agrees to pay
reasonable trustee's fees for any of the services mentioned in this paragraph.
12. As additional security, Trustor hereby assigns to Beneficiary,
during the continuance of these trusts, all rents, issues, royalties, and
profits of the property affected by this Deed of Trust and of any personal
property located thereon. Until Trustor shall default in the payment of any
indebtedness secured hereby or in the performance of any agreement hereunder,
Trustor shall have the right to collect all such rents, issues, royalties, and
profits earned prior to default as they become due and payable. If Trustor shall
default as aforesaid, Trustor's right to collect any of such moneys shall cease
and Beneficiary shall have the right, with or without taking possession of the
property affected hereby, to collect all rents, royalties, issues, and profits.
Failure or discontinuance of Beneficiary at any time or from time to time to
collect any such moneys shall not in any manner affect the subsequent
enforcement by Beneficiary of the right, power, and authority to collect the
same. Nothing contained herein, nor the exercise of the right by Beneficiary to
collect, shall be, or be construed to be, an affirmation by Beneficiary of any
tenancy, lease or option, nor an assumption of liability under, nor a
subordination of the lien or charge of this Deed of Trust to any such tenancy,
lease or option.
13. Upon any default by Trustor hereunder, Beneficiary may at any time
without notice, either in person, by agent, or by a receiver to by appointed by
a court (Trustor hereby consenting to the appointment of Beneficiary as such
receiver), and without regard to the adequacy of any security for the
indebtedness hereby secured, enter upon and take possession of said property or
any part thereof, in its own name xxx for or otherwise collect said rents,
issues, and profits, including those past due and unpaid, and apply the same,
less costs and expenses of operation and collection, including reasonable
attorney's fees, upon any indebtedness secured hereby, and in such order as
Beneficiary may determine.
14. The entering upon and taking possession of said property, the
collection of such rents, issues, and profits, or the proceeds of fire and other
insurance policies, or compensation or awards for any taking or damage of said
property, and the application or release thereof as aforesaid, shall not cure or
waive any default or notice or default hereunder or invalidate any act done
pursuant to such notice.
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15. The failure on the part of Beneficiary to promptly enforce any
right hereunder shall not operate as a waiver of such right and the waiver by
Beneficiary of any default shall not constitute a waiver of any other or
subsequent default.
16. Time is of the essence hereof. Upon default by Trustor in the
payment of any indebtedness secured hereby or in the performance of any
agreement hereunder, all sums secured hereby shall immediately become due and
payable at the option of Beneficiary. In the event of such default, Beneficiary
may execute or cause Trustee to execute a written notice of default and of
election to cause said property to be sold to satisfy the obligations hereof,
and Trustee shall file such notice for record in each county wherein said
property or some part or parcel thereof is situated. Beneficiary also shall
deposit with Trustee, the note and all documents evidencing expenditures secured
hereby.
17. After the lapse of such time as may then be required by law
following the recording of said notice of default, and notice of default and
notice of sale having been given as then required by law, Trustee without demand
on Trustor, shall sell said property on the date and at the time and place
designated in said notice of sale either as a whole or in separate parcels, and
in such order as it may determine (but subject to any statutory right of Trustor
to direct the order in which such property, if consisting of several known lots
or parcels, shall be sold), at public auction to the highest bidder, the
purchase price payable in lawful money of the United States at the time of sale.
The person conducting the sale may, for any cause he deems expedient, postpone
the sale from time to time until it shall be completed and, in every such case,
notice of postponement shall be given by public declaration thereof by such
person at the time and place last appointed for the sale; provided, if the sale
is postponed for longer than one day beyond the day designated in the notice of
sale, notice thereof shall be given in the same manner as the original notice of
sale. Trustee shall execute and deliver to the purchaser its Deed conveying said
property so sold, but without any covenant of warranty, express or implied. The
recitals in the Deed of any matters or facts shall be conclusive proof of the
truthfulness thereof. Any person, including Beneficiary, may bid at the sale.
Trustee shall apply the proceeds of the sale to payment of (1) the cost and
expenses of exercising the power of sale and of the sale, including the payment
of the Trustee's and attorney's fees; (2) cost of any evidence of title procured
in connection with such sale and revenue stamps on Trustee's Deed; (3) all sums
expended under the terms hereof, not then repaid, with accrued interest at per
annum from date of expenditure; (4) all other sums the secured hereby; and (5)
the remainder, if any to the person or persons legally entitled thereto, or the
Trustee, in its discretion, may deposit the balance of such proceeds with the
County Clerk of the county in which the sale took place.
18. Trustor agrees to surrender possession of the herein above
described Trust property to the Purchaser at the aforesaid sale, immediately
after such sale, in the event such possession has not previously been
surrendered by Trustor.
19. Upon the occurrence of any default hereunder, Beneficiary shall
have the option to declare all sums secured hereby immediately due and payable
and foreclose this Deed of Trust in the manner provided by law for the
foreclosure of mortgages on real property and Beneficiary shall be entitled to
recover in such proceedings all costs and expenses incident thereto, including a
reasonable attorney's fee in such amount as shall be fixed by the court.
20. Beneficiary may appoint a successor trustee at any time by filing
for record in the office of the County Recorder of each county in which said
property or some part thereof is situated, a substitution of trustee. From the
time the substitution is filed for record, the new trustee shall succeed to all
the powers, duties, authority and title of the trustee named herein or of any
successor trustee. Each such substitution shall be executed and acknowledged,
and notice thereof shall be given and proof thereof made, in the manner provided
by law.
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21. This Deed of Trust shall apply to, inure to the benefit of, and
bind all parties hereto, their heirs, legatees, devisees, administrators,
executors, successors and assigns. All obligations of Trustor hereunder are
joint and several. The term "Beneficiary" shall mean the owner and holder,
including any pledgee, of the note secured hereby. In this Deed of Trust,
whenever the context so requires, the masculine gender includes the feminine
and/or neuter, and the singular number includes the plural.
22. Trustee accepts this Trust when this Deed of Trust, duly executed
and acknowledged, is made a public record as provided by law. Trustee is not
obligated to notify any party hereto of pending sale under any other Deed of
Trust or of any action or proceeding in which Trustor, Beneficiary, or Trustee
shall be a party, unless brought by Trustee.
23. This Deed of Trust shall be construed according to the laws of the
State of Utah.
24. The undersigned Trustor requests that a copy of any notice of
default and of any notice of sale hereunder be mailed to him at the address
hereinbefore set forth.
A-Z South State Corporation, a Utah Corporation
/s/ Xxxxxxx X. Xxxxxx
------------------------------------------
By: Xxxxxxx X. Xxxxxx
Its. President
STATE OF UTAH )
:ss.
County of Salt Lake )
On the 1st day of December 1999 personally appeared before me Xxxxxxx Xxxxxx who
being by me duly sworn did say, for himself, that he, the said Xxxxxxx Xxxxxx is
the President, and he, the said Xxxxxxx Xxxxxx is the President, of A-Z South
State Corporation, a Utah corporation and that the within and foregoing
instrument was signed in behalf of said corporation by authority of a resolution
of its Board of Directors, and said ______________and______________duly
acknowledged to me that said corporation executed the same.
Notary Public
/s/ XxxxxxXxxx X. Xxxxxxxx
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My Commission Expires April 14th, 2001
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