Exhibit 10(ii)
ALL-INCLUSIVE TRUST DEED
With Assignment of Rents
THIS ALL-INCLUSIVE TRUST DEED made this 30tti day of November, 1999,
between A-Z South State Corporation, a Utah corporation, as TRUSTOR, whose
address is 268 West 400 South, Suite 300, Salt Lake City, Utah 84101 and FIRST
AMERICAN TITLE INSURANCE COMPANY - UTAH DIVISION, as TRUSTEE, and Abdul Rashid
Afridi, as BENEFICIARY,
WITNESSETH: 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.
Lots 32,33 and 34, Block 1, SOUTH MAIN 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, and issues, profits, income
tenements, hereditaments, privileges and appurtenances hereunto belonging, now
hereafter used or enjoyed with said property, or any part thereof, SUBJECT,
HOWEVER, to the right, power and authority hereinafter given to and conferred
upon Beneficiary to collect and apply such rents, issues, and profits;
FOR THE PURPOSE OF SECURING (1) payment of the indebtedness evidenced
by an All-Inclusive Promissory Note (hereinafter the "Note") of even date
herewith, in the principal sum of $400,000.00, made by Trustor, payable to the
order of Beneficiary at the times, in the manner and with interest as therein
set forth, and any extensions and/or renewals or modifications thereof; (2) the
performance of each agreement of Trustor herein contained; (3) the payment of
such additional loans or advances as hereafter may be to Trustor, or his
successors or assigns, when evidenced by a Promissory Note or Notes reciting
that they are secured by this Trust Deed; and (4) the payment of all sums
expended or advanced by Beneficiary under or pursuant to the terms hereof,
together with interest as herein provided.
This instrument is an All-Inclusive Trust Deed subject and subordinate
to the following instruments (hereinafter "Senior Encumbrances"):
A Trust Deed recorded December 31,1998, as Entry No. 7208956, in Book
8216, at Page 1196 of Official Records of Salt Lake County, which, if a Trust
Deed secured a Promissory Note in the original principal amount of, Three
Hundred Eighty Eight Thousand One Hundred Ninety Nine Dollars is in the original
principal amount of Dollars, ($388,199.00), dated December 31,1999, in favor of
Bank of Utah, with the Trustor being Abdul Rashid Afridi, which said Deed of
Trust shows Bank of Utah, as Trustee.
The Promissory Note secured by said Trust Deed hereinafter referred to
as the senior Note. Nothing in this Trust Deed, the Note or any deed in
connection herewith shall be deemed to be an assumption by the Trustor of the
Senior Note or Senior Encumbrance.
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TO PROTECT THE SECURITY OF THIS TRUST DEED, TRUSTOR AGREES:
1. To keep said property in good condition and repair; not to remove or demolish
any building thereon, to complete or restore promptly and in good and
workmanlike manner any building which may be constructed, damaged or destroyed
thereon; to comply with all laws, covenants and restrictions affecting said
property; not to commit or permit waste thereof; not to commit, suffer or permit
any act upon said property in violation of law; to do all other acts which from
the character or use of said property may be reasonably necessary, the specific
enumerations herein not excluding the general; and, if the loan secured hereby
or any part thereof is being obtained for the purpose of financing construction
of improvements on said property, Trustor further agrees:
(a) To commence construction promptly and to pursue same with
reasonable diligence to completion in accordance with plans and
specifications satisfactory to Beneficiary, and
(b) To allow Beneficiary to inspect said property at all times during
construction.
Trustee, upon presentation to it of an affidavit signed by Beneficiary,
setting forth facts showing a default by Trustor under this paragraph, is
authorized to accept as true and conclusive all facts and statements therein,
and to act thereon hereunder.
2. To provide and maintain insurance, of such type or types and amounts as
Beneficiary may require, on the improvements now existing or hereafter erected
or placed on said property. Such insurance shall be carried in companies
approved by Beneficiary with loss payable clauses in favor of and in form
acceptable to Beneficiary. In event of loss, Trustor shall give immediate notice
to Beneficiary, who may make proof of loss, and each insurance company concerned
is hereby authorized and directed to make payment for such loss directly to
Beneficiary instead of to Trustor and Beneficiary jointly, and the insurance
proceeds, or any part thereof, may be applied by Beneficiary, at its option, to
reduction of the indebtedness hereby secured or to the restoration or repair of
the property damaged.
3. To deliver to, pay for and maintain with Beneficiary until the indebtedness
secured hereby is paid in full such evidence of title as Beneficiary may
require, including abstracts of title or policies of title insurance and any
extensions or renewals thereof or supplements thereto.
4. To appear in and defend any action or proceeding purporting to affect the
security thereof, the title to said property, or the rights or powers of
Beneficiary or Trustee; and should Beneficiary or Trustee elect to also appear
in or defend any such action or proceeding, to pay all costs and expenses,
including cost of evidence of title and attorney's fees in a reasonable sum
incurred by Beneficiary or Trustee.
5. To pay all taxes, insurance and assessments of every kind or nature as and
when required by the Holders of Senior Encumbrances or when otherwise due in
absence of any requirements under the Senior Encumbrances.
6. Should Trustor fail to make any payment or to do any act as herein provided,
then Beneficiary or Trustee, but without obligation to do so and without notice
to or demand upon Trustor and without releasing Trustor from any obligation
hereof, may: Make or do the same in such manner and to such extent as either may
deem necessary to protect the security hereof, Beneficiary or Trustee being
authorized to enter upon said property for such purposes; commence, appear in
and defend any action or proceeding purporting to affect the security hereof or
the rights or powers of Beneficiary or Trustee; pay, purchase, contest, or
compromise any encumbrance, charge or lien which in the. judgment of either
appears to be prior or superior hereto; and in exercising any such powers, incur
any liability, expend whatever amounts in its absolute discretion it may deem
necessary thereof, including cost of evidence of title, employ counsel, and pay
reasonable legal fees.
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7. To pay immediately and without demand all sums expended hereunder by
Beneficiary or Trustee, with interest from date of expenditure at the rate borne
by the principal balance under the Note until paid and the repayment thereof
shall be secured hereby.
IT IS MUTUALLY AGREED THAT:
8. Should said property or any part thereof be taken or damaged by reason of any
public improvement or condemnation proceeding, or damaged by fire, or
earthquake, or in any other manner, Beneficiary shall be entitled to all
compensation, awards, and other payments or relief therefor, and shall be
entitled at its option to commence, appear in and prosecute in its own name, any
action or proceedings, or to make any compromise or settlement in connection
with such taking or damage. All such compensation, awards, damages, rights or
action and proceeds, including the proceeds of any policies of fire and other
insurance affecting said property, are hereby assigned to Beneficiary, who may,
after deducting therefrom all its expenses, including attorney's fees, apply the
same on any indebtedness secured hereby. Trustor agrees to execute such further
assignments of any compensation, award, damages, and rights of action and
proceeds as Beneficiary or Trustee may require.
9. At any time and from time to time upon written request of Beneficiary,
payment of its fees and presentation of this Trust Deed and the note of
endorsement (in case of full reconveyance, for cancellation and retention),
without affection the liability of any persons for the payment of the
indebtedness secured hereby, Trustee may (a) consent to the making of any map or
plat of said property; (b) join in granting any easement or creating any
restriction thereon; (c) join in any subordination or other agreement affecting
this Trust Deed or the lien or charge thereof-, (d) reconvey, without warranty,
all or any part of said property. The grantee in any reconveyance may be
described as "the person or persons entitled thereto", and the recitals therein
of any matters or facts shall be conclusive proof of the truthfulness thereof.
Trustor agrees to pay reasonable Trustee's fees for any of the services
mentioned in this paragraph.
10. As additional security, Trustor hereby assigns Beneficiary, during the
continuance of these trusts, all rents, issues, royalties, profits of the
property affected by this Trust Deed and of any personal property located
thereon. Until Trust or 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 Trust Deed to any such tenancy, lease or option.
11. Upon any default by Trustor hereunder, Beneficiary may at any time without
notice, either in person, by agent, or by receiver to be appointed by a court
(Trustor hereby consenting to the appointment of Beneficiary as such receiver),
and without regard to the adequacy of any security for the indebtedness hereby
secured, enter upon and take possession of said property or any part thereof, in
its own name sue 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.
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12. The entering upon and taking possession of said property, the collection of
such rents, issues, and profits, or the proceeds of fire and other insurance
policies, or compensation or awards for any taking or damages of said property,
and the application or release thereof as aforesaid, shall not cure or waive any
default or notice of default hereunder or invalidate any act done pursuant to
such notice.
13. The failure on the part of Beneficiary to promptly enforce any right
hereunder shall not operate as waiver of such right and the waiver by
Beneficiary of any default shall not constitute a waiver of any other or
subsequent default.
14. Time is of the essence hereof Upon default by Trustor in the payment of any
indebtedness secured hereby or in the performance of any agreement hereunder,
all sums secured hereby shall immediately become due and payable at the option
of Beneficiary. In the event of such default, Beneficiary may execute or cause
Trustee to execute a written notice of default and of election to cause said
property to be sold to satisfy the obligations hereof, and Trustee shall file
such notice for record in each county wherein said property or some part of
parcel thereof is situated. Beneficiary also shall deposit with Trustee, the
note and all documents evidencing expenditures secured hereby.
15. After the lapse of such time as may then be required by law following the
recordation of said notice of default, and notice of default and notice of sale
having been given as then required by law, Trustee without demand on 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 with property, if consisting of several known lots or
parcels, shall be sold), at public auction to the highest bidder, the purchase
price payable in lawful money of the United States at the time of sale. The
person conducting the sale may, for any cause he deems expedient postpone the
sale from time to time until it shall be completed and, in every case, notice of
postponement shall be given by public declaration thereof by such person at the
time and place last appointed for the sale; provided, if the sale is postponed
for longer than one day beyond the day designated in the notice of sale, notice
thereof shall be given in the same manner as the original notice of sale.
Trustee shall execute and deliver to the purchaser its Deed conveying said
property so sold, but without an covenant or warranty, express or implied. The
recitals in the Deed of any matters or facts shall be conclusive proof of the
trustfulness thereof. Any person, including Beneficiary, may bid at the same.
Trustee shall apply the proceeds of the sale to payment of (1) the costs and
expenses of exercising the power of sale and of the sale, including the evidence
of title procured in connection with such sale; (2) all sums expended under the
terms hereof, not then repaid, with accrued interest at the rate borne by the
principal balance under Elie Note from date of expenditure; (3) all other sums
then 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.
16. Upon the occurrence of any default hereunder, Beneficiary shall have the
option to declare all sums secured hereby immediately due and payable and
foreclose this Trust Deed in the manner provided by law for the foreclosure of
mortgages on real property and beneficiary shall be entitled to recover in such
proceedings all costs and expenses incident thereto, including a reasonable
attorney's fee in such amount as shall be fixed by the court.
17. Beneficiary may appoint a Successor Trustee at any time by filing for record
in the office of the County Recorder of each county in which said property or
some part hereof is situated, a substitution of Trustee. From the time the
substitution is filed for record, the new Trustee shall succeed to all 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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18. This Trust Deed shall apply to, inure to the benefit of, and bind all
parties hereto, their heirs, legatees, devises, administrators, executors,
successors and assigns. All obligations of Trustor hereunder are joint and
several. The term "Beneficiary" shall mean the owner and holder, including any
pledgee, of the note secured hereby. In this Trust Deed, whenever the contest
requires, the masculine gender includes the feminine and/or neuter, and the
singular includes the plural.
19. Trustee accepts this Trust when this Trust Deed, duly executed and
acknowledged, is made a public record as provided by law. Trustee is not
obligated to notify any party hereto of pending sale under any other Trust Deed
or of any action or proceeding in which Trustor, Beneficiary, or Trustee shall
be a party, unless brought by Trustee.
20. This Trust Deed shall be construed according to the laws of the State of
Utah.
21. The undersigned Trustor requests that a copy of any notice y notice of sale
hereunder be mailed to him at the address hereinbefore set forth.
A-Z South State Corporation, a Utah Corporation
/s/ Richard D. Surber
------------------------------------------
By: Richard D. Surber
Its. President
STATE OF UTAH )
:ss.
County of Salt Lake )
On the 1st day of December 1999 personally appeared before me Richard Surber who
being by me duly sworn did say, for himself, that he, the said Richard Surber is
the President, and he, the said Richard Surber 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/ BonnieJean C. Tippetts
-------------------------------------------
My Commission Expires April 14th, 2001
REQUEST FOR FULL RECONVEYANCE
(To be used only when indebtedness secured hereby has been paid in full)
TO: TRUSTEE
The undersigned is the legal owner and holder of the note and all other
indebtedness secured by the within Trust Deed. Said note, together with all
other indebtedness secured by said Trust Deed has been fully paid and satisfied;
and you are hereby requested and directed, on payment to you of any sums owing
to you under the terms of said Trust Deed, to cancel said note above mentioned,
and all other evidences of indebtedness secured by said Trust Deed delivered to
you herewith, together with the said Trust Deed, and to reconvey, without
warranty, to the parties designated by the terms of said Trust Deed, all of the
estate now held by you thereunder.
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