HomeMy WebLinkAbout2008-201 Trust Deed - Brammo Motorsports - Revision
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Jackson County Official Records 2008-040652
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I, Christi~e Walker, County Clerk for Jackson County, Oregon, certify
that the Instrument Identified herein was recorded in the Clerk
records,
Christine Walker - County Clerk
Parties:
TRUST DEED
(Rep/aces Trust Deed executed on February 22, 2008)
"* This qih day of October, 2008
BRAMMO, INC, and CRAIG BRAMSCHER, an individual, collectively
hereinafter referred to as "Grantors"
DATED:
LAWYERS TITLE COMPANY OF JACKSON COUNTY, Trustee
CITY OF ASHLAND, a municipal corporation of the State of Oregon,
Beneficiary
RECITALS:
A. Grantors are the owners of real property described on Exhibit A hereto,
including all appurtenances, buildings and existing or future improvements located
thereon and all fixtures and attachments thereto, all of which real property is
hereinafter referred to as "the Trust Property", together with easements, rights in party
walls, 'pumps and pumping plants, all machinery, equipment, appliances and fixtures
for generating or distributing air, water, heat, electricity, light, fuel or refrigeration, or for
ventilating or sanitary purposes, or for the exclusion of vermin or insects, or for the
. removal of dust, refuse or garbage; all wall safes, built-in furniture and installations,
shelving, lockers, partitions, door stops, vaults, awnings, window shades, Venetian
blinds, light fixtures, fire hoses and brackets and boxes for same, fire sprinklers, alarm
systems, drapery rods and brackets, screens, linoleum, carpets, plumbing, heating
units, water heaters, incinerators and communication systems, all of said items
whether now or hereafter installed hereby declared to be, for all purposes of this Trust
Deed, a part of the Trust Property.
B. Beneficiary has agreed to be the applicant for grant and low interest loans
through the State of Oregon, Economic Development Department for project funds to
assist Grantor for the purpose of constructing public improvements to Jefferson Street
consisting of base, paving, curb, gutter, sidewalk and storm drain are required to be
constructed by Mortgagor as a condition of Mortgagor's annexation of the property to
the City of Ashland. Grantor has agreed to deed to Trustee the Trust Property to
secure performance of the terms and conditions of the grant/loan documents and to
secure performance under this Trust Deed and under any other instruments
evidencing an indebtedness of Grantor to Beneficiary.
THEREFORE, to insure performance by Grantor of the obligations undertaken
through the State of Oregon Economic Development grant and low interest loan
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programs, which may partially fund the construction of the required public
improvements to Jefferson Street, in strict accordance with any terms and conditions
of any grants or loans awarded through such programs, and performance by Grantor
of the covenants contained herein, and to secure performance of any other obligations
of Grantor to Beneficiary which arises directly or indirectly out of the receipt of any
grants or loans, Grantor hereby grants, bargains, sells and conveys to the Trustee, in
trust, with power of sale, the Trust Property and presently assigns the rents, revenues,
income, issues and profits therefrom to the Trustee, Its successors and its assigns,
upon the terms set forth herein.
PROVIDED, HOWEVER, that until the occurrence of an event of default, Grantor may
remain in control of and operate and manage the Trust Property and collect and enjoy
the rents, revenues, income, issues and profits therefrom; and
PROVIDED, FURTHER, that if Grantor shall perform all obligations in strict
accordance with the terms hereof and shall perform all of the covenants contained
herein, and shall make all payments due on any other indebtedness and shall perform
all of the covenants contained in this Trust Deed, then Trustee shall execute and
deliver to Grantor, without warranty, a re-conveyance of the Trust Property.
The parties covenant and agree as follows:
1. Grantor's covenants and Warranties.
1.1 Incorporation of Recitals. Grantor hereby accepts the recitals as true and
herewith incorporates the recitals verbatim into the contract as though fully set forth herein.
1.2 Performance of Obligations. Grantor will construct and dedicate all public
improvements to Jefferson Street required as a condition of annexation and perform all
obligations for which provision is made in this Trust Deed and or in the grant or loan
requirements, promptly until all loans have been repaid or a period of twelve and one half (12
%) years has elapsed from the 4th day of March, 2008 and/or until the Economic
Development Grant has received final audit and is closed out, whichever is later.
1.3 Warranty of Title. Grantor warrants that it holds good and merchantable title to
the Trust Property subject to no liens or encumbrances other than those set forth on Exhibit
B hereto. Grantor covenants with Beneficiary that it will defend Beneficiary's and Trustee's
rights hereunder against the claims and demands of all persons.
1.4 Use of Trust Property. Grantor covenants and warrants that the Trust Property
is not currently used for agricultural, timber or grazing purposes. Grantor further covenants
and warrants that to the best of Grantor's knowledge, the current use of the Trust Property is
in compliance with all laws, ordinances and regulations of all governmental authorities.
Grantor further warrants that the property will be used in accordance with the requirements of
the Special Public Works Fund grant and the requirements of the Special Public Works fund
loan for the minimum length of time required under either of those programs, whichever is
longer.
1.5 Taxes and Assessments: Liens and Claims.
1.5.1 Payment. Grantor shall pay when due all taxes and all assessments, if
any, imposed against the Trust Property and all claims and demands arising from the
Grantor's use or occupancy of the Trust Property.
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Grantor's timely payment of the real property taxes on the quarterly installment
shall be deemed for purposes hereof as "payment when due."
1.5.2 Protection of the Trust Property from Liens. Other than as provided
herein, Grantor shall not permit any lien prior or equal to the Trustee's title to be imposed
upon the Trust Property, except liens for taxes or assessments assessed but not yet due.
Beneficiary agrees to subordinate Beneficiary's interest to a bank loan made for the purpose
of constructing improvements on the property so long as Grantor can demonstrate to
beneficiary that the value of the real property, including fixtures thereto, will be at least 1150/0
of the total outstanding indebtedness, including any loan to which beneficiary's interest is
being subordinated and the outstanding OECDD loan amount together with any repayment
exposure remaining on the OECDD special public works fund grant.
1.5.3 Grantor's Right to Contest. Grantor may withhold payment of any taxes,
assessments, claims or demands or may elect to contest any lien if Grantor is in good faith
conducting appropriate proceedings to contest its obligation to pay and for so long as the
Trustee's interest in the Trust Property is not jeopardized. If the Trust Property is subjected
to a lien which is not discharged within 30 days from the date the notice of claim of lien is
filed, Grantor shall deposit or cause to be deposited with Beneficiary cash, a sufficient
corporate surety bond or other security reasonably satisfactory to Beneficiary in an amount
adequate to provide for discharge of the lien plus any interest, cost, attorney fees or other
charges that could accrue as a result of foreclosure or sale. In any contest Grantor shall at _
Grantor's expense defend itself, Trustee and Beneficiary and shall satisfy any final adverse
judgment before enforcement against the Trust Property.
1.5.4 Evidence of Payment of Taxes or Assessments. At the request of the
Beneficiary and upon payment of real property taxes and assessments Grantor shall furnish
to Beneficiary evidence of payment of such taxes and assessments. Grantor hereby
authorizes the appropriate city or county official to deliver to Trustee and Beneficiary at any
time a written statement of the taxes and assessments against the Trust Property.
1.6 Insurance.
1.6.1 Grantor shall carry such insurance as is commercially reasonable. This
shall include insurance on the property against fire, additional risks covered by a standard
endorsement for extended coverage, and such other risks as may be commercially
reasonable. Insurance on the property shall be carried in companies and under poticies
approved by the Beneficiary and shall be for an amount no less than the remaining unpaid
portion of the indebtedness or the full insurable value of the property, whichever is less, and
an amount sufficient to comply with any co-insurance provision in any policy.
1.6.2 All policies of insurance on the property shall bear an endorsement in a
form satisfactory to the Beneficiary makina loss pavable to the Beneficiary herein and the
policv shall be deposited with Beneficiary until its loan is paid. In the event of loss, Grantor
shall immediately notify the Beneficiary, who may make proof of loss if it is not made
promptly by Grantor. Proceeds shall be paid directly to Beneficiary. The Beneficiary, may
at its election, apply the proceeds to the reduction of the indebtedness or the restoration or
repair of the property, with any balance distributed to the Grantor.
1.6.3 At least 30 days prior to the expiration of any policy, a satisfactory
renewal or substitute policy shall be secured by Grantor.
1.7 Use, Maintenance and Alterations.
1.7.1 Duty to Maintain. Grantor shall maintain the Trust Property in good
condition and repair and promptly perform all repairs and maintenance necessary to preserve
its value.
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1.7.2 Waste; Nuisance. Grantor shall not conduct or permit any nuisance on
the Trust Property nor commit or suffer any strip or waste thereof.
1.7.3 Removal of Improvements. Grantor shall not demolish or remove any
improvements on the Trust Property without the prior written consent of Beneficiary.
1.7.4 Beneficiary's Right to Enter and Inspect. Grantor will permit Beneficiary
and it agents to enter upon the Trust Property at all reasonable times to inspect the Trust
Property.
1.7.5 Compliance with Governmental Requirements. Grantor shall promptly
comply with all laws, ordinances and regulations of all governmental authorities applicable to
the use or occupancy of the Trust Property. Grantor may contest in good faith any such law,
ordinance or regulation and withhold compliance during any proceeding, including
appropriate appeals, so long as Beneficiary's and Trustee's interests in the Trust Property
are not jeopardized.
1.8 Eminent Domain.
1.8.1 Notice of Taking or Condemnation Proceeding. If the Trust Property or
any part thereof or interest therein, should be taken or damaged by reasons of any public
Improvement or condemnation proceeding, or if Grantor should receive any notice or other
information regarding a condemnation proceeding or similar type of proceeding, Grantor shall
immediately notify Beneficiary.
1.8.2 Condemnation Proceeds. Beneficiary shall be entitled to all
compensation, awards and other payments or relief related to condemnation, and shall be
entitled at its sole option to commence, appear in and prosecute in its own name any such
action or proceeding. All such compensation, awards, damages, rights of action and
proceeds awarded to Grantor (Condemnation Proceeds) are hereby assigned to Beneficiary
and Grantor agrees to execute such further assignments of the Condemnation Proceeds as
Beneficiary may require. Beneficiary shall have the option, in its sole and absolute
discretion, to either:
(a) apply such Condemnation Proceeds, after deducting therefrom all costs
and expenses (regardless of the particular nature thereof and whether incurred with or
without suit), including attorney fees incurred by Beneficiary in connection with such
Condemnation Proceeds, upon all or part of the indebtedness secured by this Trust Deed in
such order as Beneficiary may determine, without regard to whether or not the security of
Beneficiary is impaired, or
(b) apply all of such Condemnation Proceeds, after deducting all of
Beneficiary's costs and expenses, to the restoration of the Trust Property upon such
conditions as Beneficiary may determine;
(c) in either case, with any balance being distributed to the Grantor.
1.9 Reports. '
1.9.1 Default. Grantor shall furnish to Beneficiary notice of any default on its
part under the Oregon Economic and Community Development Department Special Public
Works Fund Program requirements for either the loan or the grant or this Trust Deed
affecting the Trust Property.
1.10 Security Agreement. This instrument shall constitute a security agreement
with respect to any fixtures attached to the Trust Property to secure all indebtedness and
obligations secured by this Trust Deed and all future advances and all future indebtedness
and obligations of Grantor to Beneficiary. This instrument shall also constitute a financing
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statement and shall be filed for recording in the real estate records of the county where the
Trust Property is located.
1.11 Reserves. If Grantor has failed to perform its obligations under Sections 1.4
thru 1.6 this Trust Deed, Beneficiary may require Grantor to maintain with Beneficiary
reserves for payment of taxes, assessments and insurance premiums. The reserve shall be
created by monthly payments of a sum estimated by Beneficiary to be sufficient to produce,
at least 15 days before due, an amount equal to the taxes, assessments and insurance
premiums. If 15 days before payment is due the reserve is insufficient, Grantor shall pay any
deficiency to Beneficiary upon demand. The reserve shall be held by Beneficiary as a
general deposit from Grantor and shall constitute a non-interest bearing debt from
Beneficiary to Grantor which Beneficiary may satisfy by payment of the taxes and
assessments. If Beneficiary is required by law to pay interest on these funds, they shall earn
interest at the lowest permissible rate, and Beneficiary may impose any reasonable and
lawful charge for holding and disbursing such funds. Nothing contained herein shall cause
Beneficiary to be deemed a trustee of the reserve or to be obligated to pay any amounts in
excess of the amount of funds deposited with Beneficiary pursuant to this Section 1.11.
1.12 Grantor's Indemnification Against Liability Arising From Grantor's Acts While
Occupying The Property Under This Section. Grantor agrees to indemnify and hold
Beneficiary harmless from and against any and all claims arising from Grantor's use of the
Property, or from the conduct of Grantor's business or from any activity, work or things done,
permitted or suffered by Grantor in or about the Property, and shall further indemnify and
hold harmless Beneficiary from and against any and all claims arising from any breach or
default in the performance of any obligation on Grantor's part to be performed under the
terms of this Agreement, or arising from any negligence of the Grantor, or any of Grantor's
agents, contractor, or employees, and from and against all costs, attorney fees, expenses
and liabilities incurred in the defense of any such claim or action or proceeding brought
against the Beneficiary by reason of any such claim. Grantor upon notice from Beneficiary
shall defend the same at Grantor's expense by counsel reasonably satisfactory to
Beneficiary. Grantor, as a material part of the consideration to Beneficiary, hereby agrees
that, except for any matters arising out of Beneficiary's negligence or willful act, Beneficiary
shall not be liable for Injury to Grantor's property, or to the person of Grantor, Grantor's
employees or contractors, or any other person on the Premises in connection with Grantor's
rights under this subsection, whether such damage or injury is caused by or results from fire,
water or rain, or from the breakage, leakage, obstruction or other defects of pipe, wires, or
from any other cause, whether the said damage or injury results from conditions arising upon
the Property, and regardless of whether the cause of such damage or injury or the means of
repairing the same is inaccessible to Grantor.
2. Events of Default. The following shall constitute events of default:
2.1 Nonperformance. Failure of Grantor to perform any obligation required by the
Oregon Economic and Community Development Department hereunder or under the
February 2008 note evidencing the loan from the Oregon Economic and Community
Development Department, from the employment requirements imposed by receipt of the
grant funds and subsequent failure to repay the $5000 per employment position by which
Grantor has failed to meet the employment requirements, or to make any payment for taxes,
insurance premiums or for reserves for such payments, or any other payment necessary to
prevent filing of or discharge of any lien within 10 days after written notice by Beneficiary (or
Beneficiary's agents) of any such nonpayment. No notice by Beneficiary shall be required for
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nonpayment if during the preceding 12 calendar months Beneficiary has sent notice to
Grantor concerning any nonpayment hereunder.
2.2 Breach of Other Covenant. Failure of Grantor to perform any obligation under
the Oregon Economic and Community Development Department loan or contained in this
Trust Deed within 30 days after notice from Beneficiary (or Beneficiary's representative)
specifying the nature of the default or, if the default cannot be cured within 30 days, failure
within such time to commence and pursue with reasonable diligence curative action. No
notice of default and opportunity to cure shall be required if during the preceding 12 calendar
months Beneficiary has already sent a notice to Grantor concerning default in performance of
the same obligation.
2.3 Prior Encumbrance Default. The occurrence of any event of default under any
other agreement or security instrument encumbering the property with priority superior to that
granted herein.
2.4 Misinformation. Falsity in any material respect of the warranty in paragraph
1.2 or of any representation, warranty or information furnished to Beneficiary in connection
with receipt of the OECDD Grant or this Trust Deed.
2.5 Cross-Default. The happening of an event of default under any other
agreement or security instrument between Grantor and Beneficiary.
2.6 Sale or Transfer of Possession. The sale or transfer of possession of the
Trust Property or any part thereof in any manner by Grantor, whether by deed, contract of
sale, lease or similar agreement, without the prior written consent of Beneficiary. The
Beneficiary shall consent to a transaction covered by this provision when withholding such
consent would be un'reasonable in the circumstances. In determining whether to consent to
a transfer or assignment of any type, the Beneficiary may consider the following factors and
may demand such documentation as deemed necessary by Beneficiary in connection
therewith: financial ability of proposed transferee; business experience of proposed
transferee; and the proposed use of the premises by the proposed transferee is consistent
with the terms and conditions of the Grant. The execution and delivery by the Grantor of any
joint venture agreement, partnership agreement, declaration of trust, option agreement or
other instrument whereunder any other person may become entitled, directly or indirectly, to
the possession or enjoyment of the Trust Property, or the income or other benefits derived or
to be derived therefrom, shall in each case be deemed to be a sale or transfer of Grantor's
interest in the Trust Property for the purposes of this section. Grantor acknowledges that the
loan secured by this Trust Deed is personal to Grantor and that in making it Beneficiary has
relied on Grantor's credit, Grantor's interest in the Trust Property and financial market
conditions at the time this loan is made
2.7 Certain Taxes. This subsection shall apply to the following state and county
taxes:
(a) A specific tax on mortgages, trust deeds, secured indebtedness or any
part of the indebtedness secured by this Trust Deed.
(b) A specific tax on the Grantor of property subject to a trust deed which
the taxpayer is authorized or required to deduct from payments on the Trust Deed.
(c) A tax on property chargeable against the Beneficiary or Trustee under a
Trust Deed.
(d) A specific tax on all or any portion of the indebtedness or on payments of
principal and interest made by Grantor.
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If any state tax to which this subsection applies is enacted after the date of this
Trust Deed, enactment of the tax shall constitute an event of default unless the following
conditions are met:
(i) Grantor may lawfully pay the tax or charge imposed by the state 0
county tax without causing any resulting economic disadvantage or increase of tax to
Beneficiary or Trustee,
(ii) Grantor pays or agrees to pay the tax or charge within 30 days
after notice from Beneficiary or Trustee that the tax law has been enacted.
In the event of a default under this paragraph 2.7, and notwithstanding any other
provision of the OECDD Grant or this Trust Deed, no prepayment penalty shall be payable.
2.8 Insolvency. Grantor's insolvency or inability to pay its debts as they mature, or
Grantor's assignment for the benefit of creditors or filing of a voluntary petition in bankruptcy,
or a voluntary petition seeking reorganization, or effecting a plan or other arrangement with
creditors, or filing an answer consent to or taking any other action indicating acquiescence in
any involuntary petition pursuant to, or purporting to be pursuant to, any bankruptcy,
reorganization, or insolvency laws of any jurisdiction, or adjudication of Grantor as a
bankrupt, or insolvent by any court of competent jurisdiction, or appointment of a receiver for
any substantial portion of Grantor's properties.
2.9 Transfer of Interest. Any sale, transfer, relinquishment or loss of control of
Grantor, its successors or assigns, either voluntarily or by operation of law, shall constitute a
default, unless prior written consent is obtained from the Beneficiary. The Beneficiary shall
consent to a transaction covered by this provision when withholding such consent would be
unreasonable in the circumstances. In determining whether to consent to a transfer or
assignment of any type, the Beneficiary may consider the following factors and may demand
such documentation as deemed necessary by Beneficiary in connection therewith: financial
ability of proposed transferee; business experience of proposed transferee; and the
proposed use of the premises by the proposed transferee, whether or not the proposed use
by the transferee would comply with the requirements of the Economic Development low
interest loan and the requirements of the grant. In any subdivision or split of the property the
obligations undertaken herein shall jointly and severally apply fully to each resulting parcel
unless the Beneficiary shall agree in writing to an allocation of a proportion of the obligation
to a particular parcel.
2.10 Grantor's Environmental Practices During Term of Agreement. Grantor shall
neither use, generate, manufacture, produce, store or release on, under or about the
Property, or transfer to or from the Property, any hazardous substances, nor permit any third
party to do so, other than in compliance with applicable law, and such non-compliance
continues uncured 30 days after receipt of written notice of default from the Beneficiary. As
used herein, the following terms shall have the meanings specified below:
2.10.1 The term "environmental law" shall mean any federal, state or local
statute, ordinance or regulation pertaining to health, industrial hygiene, or the environment,
including, without limitation, the Comprehensive Environmental Response, Compensation,
Liability Act of 1980, as amended, 42 U.S.C. 99601, et seq. ("CERCLA"), and the Resource
Conservation and Recovery Act of 1976,42 U.S.C. 96901, et seq. ("RCRA"), and all rules
adopted and guidelines promulgated pursuant to the foregoing.
2.10.2 The term "hazardous substance" shall include:
(a) The substances included within the definitions of
"hazardous substances," "hazardous materials," "toxic substances," or "solid waste" in
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CERCLA, RCRA, The Hazardous Materials Transportation Act, 49 U.S.C. 91801, et seq.,
and in the regulations promulgated pursuant thereto;
(b) Those substances listed in the Unites States Department
of Transportation Table (49 CFR 172.101 and amendments thereto) or by the Environmental
Protection Agency as a hazardous substance (40 CFR part 302 and amendments thereto),
and
(c) All other substances, materials and waste that are, or that
become regulated under, or that are classified as hazardous or toxic under any
environmental law. The term "release" shall mean any releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching, disposing of or
dumping.
2.10.3 To insure compliance with the provisions of this section, Grantor
covenants to allow inspection of the Property from time to time (including the interior of all
buildings) by Buyer or Buyer's authorized representatives upon the giving of reasonable
notice of intent to make such an inspection at least 48 hours before undertaking inspection.
2.10.4 Grantor's Indemnification Against Grantor's Future I;nvironmental
Practices While Occupying the Property Under This Section. Grantor agrees to indemnify
and hold Beneficiary harmless from any liability which may arise hereinafter due to Grantor's
use, generation, manufacture, production, storage or release on, under or about the
Property, or transfer to or from the Property of any hazardous substances or due to Grantor's
suffering any third party to do the same.
3. Remedies in Case of Default. If an event of default shall occur, Beneficiary or
Trustee, as the case may be, may exercise any of the following rights and remedies, in
addition to any other remedies which may be available at law, in equity, or otherwise:
3.2 Books and Records. Beneficiary may examine all books, records and
contracts of Grantor pertaining to the Trust Property and of any guarantors and make such
memoranda thereof as may be desired.
3.3 Receiver. Beneficiary may have a receiver of the Trust Property appointed.
Beneficiary shall be entitled to the appointment of a receiver as a matter of right whether or
not the apparent value of the Trust Property exceeds the amount of the indebtedness
secured by this Trust Deed. Employment by Trustee or Beneficiary shall not disqualify a
person from serving as receiver. Grantor waives all defenses and consents to the
appointment of a receiver at Beneficiary's option.
3.4 Possession. Beneficiary may, either through a receiver or as a lender-in-
possession, take possession of all or any part of the Trust Property, and Grantor shall
peaceably surrender the same.
3.5 Rents and Revenues. Beneficiary may revoke Grantor's right to collect the
rents and revenues from the Trust Property, and may either itself or through a receiver,
collect the same. To facilitate collection, Beneficiary may notify Grantor's tenants to pay
rents directly to it. Beneficiary shall not be deemed to be in possession of the Trust Property
solely by reason of exercise of the rights contained in this paragraph 3.5. If rents are
collected by Beneficiary under this paragraph 3.5, Grantor hereby irrevocably designates
Beneficiary as Grantor's attorney-in-fact to endorse instruments' received in payment of rent,
in respect of any part of the Trust Property, in the name of Grantor and to negotiate such
instruments and collect the proceeds thereof.
3.6 Foreclosure. Beneficiary may obtain a decree foreclosing Grantor's interest in
all or any part of the Trust Property.
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3.7 Fixtures and Personal Property. With respect to any fixtures or personal
property subject to a security interest in favor of Beneficiary, Beneficiary may exercise any
and all of the rights and remedies of a secured party under the Uniform Commercial Code.
3.8 Abandon Security. Beneficiary may abandon any security afforded by this
Trust Deed or any other security instrument by notifying Grantor of Beneficiary's election to
do so.
3.9 Power of Sale. Beneficiary may direct Trustee and Trustee shall be
empowered, to foreclose the Trust Property by advertisement and exercise of the power of
sale under applicable law.
3.10 Sale of Collateral; Bid at Public Sale. In exercising its rights and remedies,
Beneficiary shall be free to sell all or any part of the collateral together or separately, or to
sell certain portions of its collateral and refrain from selling other portions. Beneficiary shall
be entitled to bid at any public sale of all or any portion of its collateral.
3.11 Cumulative Remedies. The rights and remedies of Beneficiary herein,
whether evidenced hereby or by any other agreement, instrument or paper, including, but not
limited to, the State of Oregon Economic Development grant/loan documents and this Trust
Deed, shall be cumulative and may be exercised singularly or concurrently, at the sole option
of Beneficiary. An election to cure under paragraph 6.7 shall neither prejudice the right to
declare a default nor constitute a waiver of the breached term or of any of the remedies
provided herein. No delay or omission in exercising any right or remedy shall impair that or
any other right to remedy or shall be construed to be a waiver of the default.
4. Receiver of Trustee-in-Possession. Upon taking possession of all or any part of the
Trust Property, a receiver or Trustee or Beneficiary or Beneficiary's representative may:
4.1 Management. Use, operate, manage, control and conduct business on the
Trust Property and make expenditures for such purposes and for maintenance and
improvements as in its judgment are necessary.
4.2 Rents and Revenues. Collect all rents, revenues, income, issues and profits
from the Trust Property and apply such sums to the expenses of use, operation,
management, maintenance and improvements.
4.3 Construction. At its option, complete any construction in progress on the Trust
Property, and in that connection pay bills, borrow funds, employ contractors and make any
changes in plans and specifications for improvement of the Trust Property as it deems
appropriate.
4.4 Additional Indebtedness. If the revenues produced by the Trust Property are
insufficient to pay expenses, including, without limitation, any disbursements made by
Beneficiary or Trustee pursuant to this Section 4, a receiver may borrow, or Beneficiary or
Trustee may advance, such sums upon such terms as it deems necessary for the purposes
stated in this section, and repayment of such sums shall be secured by this Trust Deed.
Amounts borrowed or advanced shall bear interest at a rate equal to the lesser of 12% per
annum or the highest rate permitted by applicable law. Amounts borrowed or advanced and
interest thereon shall be payable by Grantor to Beneficiary or Trustee on demand.
5. Application of Proceeds. All proceeds realized from the exercise of the rights and
remedies under Sections 3 and 4 shall be applied as follows:
5.1 Costs and Expenses. To pay the costs of exercising such rights and
remedies, including the costs of any sale, the costs and expenses of any receiver or lender-
in-possession, and the costs and expenses provided for In paragraph 6.6.
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5.2 Indebtedness. To pay all other amounts and obligations owed by Grantor,
payment of which is secured by this Trust Deed.
5.3 Surplus. The surplus, if any, shall be paid to the clerk of the court in the case
of a foreclosure by judicial proceeding, otherwise to the person or persons legally entitled
thereto.
6. General Provisions.
6.1 Reconveyance Upon Performance. Upon written request of Beneficiary stating
that performance of all obligations secured hereby have been paid, surrender of this Trust
Deed to Trustee for cancellation and retention and payment of its fees, Trustee shall
reconvey, without warranty, the Trust Property then held hereunder. The recitals in any
reconveyance executed under this Trust Deed of any matters of fact shall be conclusive
proof of the truthfulness thereof. The grantee in such reconveyance may be described as
"the person or persons legally entitled thereto."
6.2 Substitute Trustee. In the event of dissolution or resignation of the Trustee,
Beneficiary may substitute one or more trustees to execute the trust hereby created, and the
new trustee(s) shall succeed to all of the powers and duties of prior trustees.
6.3 Trust Deed Binding on Successors and Assigns. This Trust Deed shall be
binding on and inure to the benefit of the successors and assigns of Grantor, Trustee and
Beneficiary .
6.4 Indemnity. Grantor shall hold Beneficiary and Trustee harmless from any and
all loss and expense, including but not limited to attorney fees and court costs, in any suit,
action or proceeding or any appeal therefrom brought against Trustee or Beneficiary bya
third party resulting from or attributable to Trustee's interest under this Trust Deed, except
suits, actions and proceedings based upon a claim that Beneficiary or Trustee improperly
entered into this Trust Deed or the State of Oregon grants or loans.
6.5 Notice. Any notice under this Trust Deed shall be in writing. Any notice to be
given or document to be delivered under this Trust Deed shall be effective when either
delivered in person or deposited as registered or certified mail, postage prepaid, addressed
to the party at the address first stated in this Trust Deed; provided that any notice pursuant to
exercise of the Trustee's power of sale in the event of default shall be sufficient if such notice
complies with all provisions of Oregon law applicable to exercise of such powers of sale. Any
party may by notice to the others designate a different address.
6.6 Expenses and Attorney Fees. In the event that Beneficiary or Trustee shall
take any action, judicial or otherwise, to enforce any provision of this Trust Deed or if
Beneficiary or Trustee shall be required to appear in any proceeding to protect and maintain
the priority of Trustee's title to the Trust Property, Trustee or Beneficiary (or both) shall be
entitled to recover from Grantor all expenses which it may reasonably incur in taking such
action, including but not limited to costs incurred in searching records, the cost of title reports
and surveyors' reports, and its attorney fees, whether incurred in a suit or action or any
appeals from a judgment or decree therein or petition for review, or in connection with
nonjudicial action. Grantor shall reimburse Beneficiary or Trustee (or both) for expenses so
incurred on demand with interest from the date of expenditure until repaid at a rate equal to
the lesser of 120/0 per annum or the highest rate permitted by applicable law.
6.7 Beneficiary's Right to Cure. If Grantor fails to perform any obligation required
of it under this Trust Deed, Beneficiary may, without notice, take any steps necessary to
remedy such failure. Grantor shall reimburse Beneficiary for all amounts expended in so
doing on demand with interest at a rate equal to the lesser of 120/0 per annum or the highest
G:\legal\ALI\Brammo\Brammo Trust Deed 2-15 08 (final).doc TRUST DEED - PAGE 10
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rate permitted by applicable law from the date of expenditure until repaid. Such action by
Beneficiary shall not constitute a waiver of the default or any other right or remedy which
Beneficiary may have on account of Grantor's default.
6.8 Applicable Law. This Trust Deed shall be governed by the laws of the State of
Oregon.
6.9 Time of Essence. Time is of the essence of this Trust Deed.
6.10 Headings. The headings to the sections and paragraphs of this Trust Deed
are included only for the convenience of the parties and shall not have the effect of defining,
diminishing or enlarging the rights of the parties or affecting the construction or interpretation
of any portion of this Trust Deed.
6.11 Severability. If any provision of this Trust Deed shall be held to be invalid,
illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect any other
provisions of this Trust Deed, but this Trust Deed shall be construed as if such invalid, illegal
or unenforceable provision had never been contained herein.
6.12 Entire Agreement. This Trust Deed and the OECDD Grant documents contain
the entire agreement of the parties with respect to the matters covered, and no other
previous agreement, statement or promise made by any party to this Trust Deed which is not
contained in its terms or in the terms of the OECDD Grant Documents shall be binding or
valid.
IN WITNESS WHEREOF, Grantor has caused this Trust Deed to be executed as of
the day and year firs above written.
BRAMMO, INC
~~~
(Name)
f/k3iOovl
(Title)
State of Oregon
County of Jackson
This in rument was acknowledged before me on ~ ~1J{ q
for rammo, Inc, the Grantor.
, 2008, by Craig Bramscher, the
Notary Public for Oregon
My Commission expires: J..':l ~.10If
. OFFICIAL SEAL
ALEXANDRA BROOKS
NOTARY PUBLIC-OREGON
COMMISSION NO. 414765
MY COMMISSION EXPIRES FEB. 28. 2011
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TRUST DEED - PAGE 11
----.-~-~
ACCEPTED THIS _ day of ~, 2008, by the City of Ashland.
CITY OF ASHLAND, OREGON
Ii~:".~,,-. SEAL
or":' " . ~ BROOKS
~ ~.. .' ,>' -sue-OREGON
~,,;.\;\:;,!)NNO. 41'4765
St t ,.',.1.,._'.,....',,'..- ".>>\RESfE8. 28.2011
a e Mt>:<'.,.
Coun _;.~.~...:...-......:t.
This instrument was acknowledged before me on ~ nil ~, 2008,.ey
as af the City ur A~hlC:llld, Or~gon, Beneficiary, alld by John Morrison as Mayor of the City of
As 0 e on
-klb 10- 'l.~
~.d?>.~bll
ATTEST:
~~
- OFFICIAL SEAL I
. ALEXANDRA BROOKS
NOTARY PUBLIC-OREGON
COMMISSION NO. 414765
~ MY COMMISSION EXPIRES FEB. 28. 2011
Barbara Christensen, City Recorder
State of Oregon
County of Jackson
This instrument was acknowledged before me on U~ 'o-tJf qil\. , 2008, by ~
-as ot the \"'Ity of Ashlalld, O.egoh, Bt:m~ficiary, a-lId by Barbara Christensen as Recorder of the City
0~~~n8M/MLbt{)O*)
~UbhC for Oregon ,
My Commission expires: ,d-. a.tJ ~ 2-0\\
jO . <1. t>~
*Due to an error on Grantor's part, these documents are being re-executed and re-recorded
by Grantor and City.
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TRUST DEED - PAGE 12
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BXHIBIT A
A parcel of land situated in the Northeast Quarter of Section 14, Township 39 South,
Range 1 East, of the Willamette Meridian in Jackson County, Oregon, being more fully
described as follows: Commencing at the northeast corner of the Southwest Quarter of
the Northeast Quarter of Section 14, Township 39 South, Range 1 East, of the
Willamette Meridian in Jackson County, Oregon; thence South 89045'16" West (deed
record West), along the northerly boundary of that parcel set forth in Volume 309,
page 375, and Volume 335, page 321, Jackson County, Oregon, Deed Records, 126.28 feet
to a 5/8" x 30" iron pin situated in the southwesterly right of way of Interstate
Highway No.5, for the True Point of Beginning; thence continuing South 89045'16"
West (deed record West), along said parcel set forth in Volume 335, page 321, said
Deed Records, 311.72 feet to a 5/8" x 30" pin situated at the northwest corner
thereof; thence South 0002'16" West (deed record South, and South 0017' West), along
the westerly boundary line of those parcels set forth in Volume 309, page 375, and
Volume 335, page 321, and Volume 439, page 482, said Deed Records, 692.15 feet to a
5/8" x 30" iron pin situated in the northeasterly right of way of the Southern
Paciflc Railroad, as claimed by said railroad; thence continuing South 0002'16" West
(deed record South, and South 0017' West), 66.42 feet, to a point in the
northeasterly right of way of the Southern Pacific Railroad, as set forth in Volume
245, page 480, and Volume 439, page 482, said Deed Records; thence along the deed
record location of said railroad, the following courses: Along the arc of a 2914.934
foot radius curve to the left, the radial bearings "in and out" are South 41038'15"
West and North 35042'56" East (the central angle is 05055'1911), 301.28 feet, to a
point of spiral curvature; thence along the arc of a spiral curve to the left (the
long chord bears North 54052'59" West, 90.79 feet), to a point of tangency; thence
North 5501'04" West 601.29 feet; thence leaving said deed record location of said
railroad right of way, North 60002'33" East, 55.27 feet, to a 5/811 x 30" iron pin
situated in the northeasterly right of way of the Southern Pacific Railroad, as
claimed by said railroad; thence leaving said right of way North 60002'33" East,
298.64 feet, to a 5/8" x 30" iron pin; thence East 159.24 feet, to a 5/8' x 30" iron
pin; thence North 06050'20" East, 42.30 feet, to a 5/8" x 30" iron pin, situated at
the southwest corner of that parcel set forth in No. 75-14182 of the Official Records
of Jackson County, Oregon; thence East, along the southerly boundary of the last
referred to parcel, 622.96 feet to a 5/8" x 30" iron pin situated in the
southwesterly right of way of Interstate Highway No.5; thence South 26041'00" East,
along said interstate highway right of way, 47.61 feet, to the True Point of
Beginning. EXCEPTING THEREFROM any portion of the herein above parcel that may be
situated within the right of way of the Southern Pacific Railroad.
(Code 5-08, Account #1-062312-0, Map #391E14A, Tax Lot #1104)
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TRUST DEED - PAGE 13
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