Deed of Trust

RECORDING REQUESTED BY:

AND WHEN RECORDED MAIL TO:

AND MAIL TAX STATEMENTS TO:

NAME

ADDRESS

CITY

STATE & ZIP

Amended and Restated Deed of Trust, made , between , of , hereinafter jointly called the Debtor, of , hereinafter called the Trustee, and , of , hereinafter called the Beneficiary.

Debtor irrevocably grants, transfers, and assigns to Trustee, in trust, with power of sale, all that Property, including all easements and rights of way used in connection with or as a means of access to the Property, in , hereinafter called the Property, described as follows:

(Legal Description of Property)

Together with the rents, issues, and profits of the Property, subject however to the right reserved by Debtor in Section 22 to collect and apply such rents, issues, and profits, prior to any default under this Deed of Trust, for the purpose of securing payment of the indebtedness evidenced by an Amended and Restated Promissory Note executed by Debtor, dated , in the principal sum of $, payable to Beneficiary, and each extension of the same; and performance of each agreement of Debtor incorporated by reference or contained in this Deed of Trust.

1. Maintenance of Property

To maintain the Property in good condition and repair; not to remove or demolish any building or improvement on it; to complete promptly in workmanlike manner any improvement later constructed on the Property and to restore promptly in workmanlike manner any improvement on the Property that is damaged or destroyed, and to pay when due all costs incurred for the same or in connection with the same; to comply with all laws, ordinances, regulations, covenants, conditions, and restrictions affecting the Property; not to commit, suffer, or permit any waste of the Property or any act on the Property in violation of law or of covenants, conditions, or restrictions affecting the Property; and to do all other acts that from the character or use of the Property are reasonably necessary to protect and preserve the security, the specific enumerations in this Paragraph not excluding the general.

2. Hazard Insurance

To provide, maintain, and deliver to Beneficiary fire insurance, and if required by Beneficiary, other insurance satisfactory to and with loss payable to Beneficiary. The amount collected under any fire or other insurance policy and all return premiums may be applied by Beneficiary on any indebtedness secured by this Deed of Trust in such order as Beneficiary determines, or at the option of Beneficiary the entire amount so collected or any part of it may be released to Debtor. Such application or release shall not cure or waive any default or notice of default under this Deed of Trust or invalidate any act done pursuant to such notice. Any unexpired insurance shall inure to the benefit of, and pass to, the purchaser of the Property covered by the insurance at any Trustee's sale held under this Deed of Trust, or at any foreclosure sale of such Property.

3. Proceeding Affecting Deed of Trust

To appear in and defend any action or proceeding purporting to affect the security of this Deed of Trust or the rights or powers of Beneficiary or Trustee; and also, if at any time Beneficiary or Trustee is a party to or appears in any such action or proceeding, or in any action or proceeding to enforce any obligation secured by this Deed of Trust, to pay all costs and expenses paid or incurred by them or either of them in connection with the same, including, but not limited to, the cost of evidence of title and attorney's fees in a reasonable sum.

4. Taxes and Assessments

To pay: (a) at least days before delinquency, all taxes and assessments affecting the Property, all assessments on water company stock, and all rents, assessments, and charges for water appurtenant to or used in connection with the Property; (b) when due, all encumbrances, charges, and liens, with interest, on the Property or any part of it, that appear to be prior or superior to this Deed of Trust; and (c) all costs, fees, and expenses of this trust.

5. Power of Beneficiary or Trustee to Act

If Debtor fails to make any payment or to do any act as provided in this Deed of Trust, then Beneficiary or Trustee (but without obligation so to do, and with or without notice to or demand on Debtor, and without releasing Debtor from any obligation) may: (a) make or do the same in such manner and to such extent as either deems necessary to protect the security of this Deed of Trust, Beneficiary or Trustee being authorized to enter on the Property for such purpose; (b) appear in or commence any action or proceeding purporting to affect the security of this Deed of Trust or the rights or powers of Beneficiary or Trustee; (c) pay, purchase, contest, or compromise any encumbrance, charge, or lien that, in the judgment of either, appears to be superior to this Deed of Trust; and in exercising any such power, Beneficiary or Trustee may incur necessary expenses, including reasonable attorney's fees.

6. Reimbursement of Beneficiary or Trustee

To pay immediately and without demand all sums expended under this Deed of Trust by Beneficiary or Trustee, with interest from the date of expenditure at % per annum.

7. Condemnation

Any award of damages made in connection with the condemnation for public use of or injury to the Property or any part of it is now assigned and shall be paid to Beneficiary, who may apply or release such moneys received in the same manner and with the same effect as provided above for the disposition of proceeds of fire or other insurance, and Debtor will execute such further assignment of any such award as Beneficiary or Trustee requires.

8. Forbearance Not a Waiver

The acceptance by Beneficiary of any payment less than the amount then due shall be deemed an acceptance on account only and shall not constitute a waiver of the obligation of Debtor to pay the entire sum then due or of Beneficiary's right either to require prompt payment of all sums then due or to declare a default. The acceptance of payment of any sum owed pursuant to the Promissory Note secured by this Deed of Trust after its due date will not waive the right of Beneficiary either to require prompt payment when due of all other sums so secured or to declare a default for the failure so to pay, and no waiver of any default shall be a waiver of any preceding or succeeding default of any kind.

9. Powers of Trustee

At any time or from time to time, without liability for the same and with or without notice, on written request of Beneficiary and the presentation of this Deed of Trust and/or the Promissory Note for endorsement and without affecting the personal liability of any person for payment of the indebtedness secured by this Deed of Trust or the effect of this Deed of Trust on the remainder of the Property, Trustee may reconvey any part of the Property, consent to the making of any map or plat of the Property, join in granting any easement, or join in any extension agreement or any agreement subordinating the lien or charge of the same.

10. Reconveyance

On the written request of Beneficiary stating that all sums secured by this Deed of Trust have been paid, the surrender of this Deed of Trust and the Promissory Note to Trustee for cancellation and retention, and the payment of its fees, Trustee shall reconvey, without warranty, the Property then held under this Deed of Trust. The recitals in the reconveyance shall be conclusive proof of their truthfulness. The grantee may be designated in the reconveyances as "the person or persons legally entitled to the Property."

11. Payment of Rent after Default

If Debtor or any subsequent owner of the Property covered by this Deed of Trust shall occupy the Property, or any part of it, after any default in the payment of any amount secured by this Deed of Trust, Debtor or such owner shall pay to the Beneficiary in advance on the (e.g., first) day of each month a reasonable rental for the Property so occupied, and on failure to pay such reasonable rental, Debtor or such owner may be removed from the Property by summary dispossession proceedings or by any other appropriate action or proceeding.

12. Acceleration

If a default is made in the payment of any indebtedness or in the performance of any agreement secured by this Deed of Trust, then Beneficiary, with or without notice to Debtor, may declare all sums secured by this Deed of Trust immediately due and payable by instituting suit for the recovery of the same or for the foreclosure of this deed, or by delivering to Trustee a written declaration of default and demand for sale, as well as a written notice of default and of election to cause the Property to be sold, which notice Trustee shall cause to be filed for record. If the declaration is delivered to Trustee, Beneficiary also shall deposit with the Trustee this Deed of Trust, the Promissory Note, and all documents evidencing expenditures secured by this Deed of Trust.

13. Transfer of Property

Except as prohibited by law, should Debtor, without the consent in writing of Beneficiary, voluntarily sell, transfer, or convey Debtor's interest in the Property or any part of the Property, or if by operation of law, it be sold, transferred, or conveyed, then Beneficiary may, at its option, declare all sums secured by this Deed of Trust immediately due and payable. Consent to one such transaction shall not be deemed to be a waiver of the right to require consent to future or successive transactions.

14. Sale of Property after Default

After the time then required by law has elapsed after recordation of the notice of default, and notice of sale having been given as then required by law, Trustee, with or without demand on Debtor, shall sell the Property at the time and place fixed in the notice of sale, either as a whole or in separate parcels and in such order as Trustee determines, at public auction, to the highest bidder, for cash in lawful money of the United States, payable at the time of sale. Trustee may postpone from time to time the sale of all or any part of the Property by public announcement at the time and place of sale originally fixed or at the last preceding postponed time. Trustee shall deliver to the purchaser its deed conveying the Property sold, but without any covenant or warranty, express or implied. The recitals in the deed of any matters or facts shall be conclusive proof of their truthfulness. Debtor, Trustee, Beneficiary, or any other person may purchase at any such sale.

15. Application of Proceeds from Sale

After deducting all costs, fees, and expenses of Trustee and of this trust, including the cost of evidence of title and reasonable counsel fees in connection with the sale, Trustee shall apply the proceeds of the sale to the payment of: (a) all sums expended under the terms of this Deed of Trust and not previously repaid, with accrued interest at % per annum; and (b) all other sums then secured by this Deed of Trust in such order as Beneficiary, in the exercise of its sole discretion, directs; and the remainder, if any, shall be paid to the person or persons legally entitled to it.

16. Rescinding Notice of Default

Before Trustee's sale, Beneficiary may rescind such notices of default and of election to cause the Property to be sold by delivering to Trustee a written notice of rescission, which notice, when recorded, shall cancel any prior declaration of default, demand for sale, and acceleration of maturity. The exercise of the right of rescission shall not constitute a waiver of any default then existing or subsequently occurring, or impair the right of Beneficiary to deliver to Trustee other declarations of default and demands for sale or notices of default and of election to cause the Property to be sold, or otherwise affect any provision of the Promissory Note or of this Deed of Trust or any of the rights, obligations, or remedies of Beneficiary or Trustee under this Deed of Trust.

17. Successor of Trustee

Beneficiary may from time to time, as provided by statute, or by a writing signed and acknowledged by Beneficiary and recorded in the office of the county recorder of the county in which the above-described land or such part of it as is then affected by this Deed of Trust is situated, appoint another Trustee in place and stead of Trustee named in this Deed of Trust; and in that event, the Trustee named in this Deed of Trust shall be discharged, and Trustee so appointed shall be substituted as Trustee with the same effect as if originally named Trustee in this Deed of Trust.

18. Multiple Trustees

If two or more persons are designated as Trustee, any, or all, powers granted in this Deed of Trust to Trustee may be exercised by any of such persons if the other person or persons is unable, for any reason, to act. Any recital of such inability in any instrument executed by any of such persons shall be conclusive against Debtor, and the heirs and assigns of Debtor.

19. Leases Affecting Property

All leases now or later affecting the Property are now assigned and transferred to Beneficiary by Debtor, and Debtor agrees that none of the leases will be modified or terminated without the written consent of Beneficiary.

20. Additional Security

When requested so to do, Debtor shall give such further written assignments of rents, royalties, issues, and profits, of all security for the performance of leases, and of all money payable under any option to purchase, and shall give executed originals of all leases, now or later on or affecting the Property.

21. Debtor’s Rights Prior to Default

Debtor reserves the right, prior to any default in the payment of any indebtedness or the performance of any obligation secured by this Deed of Trust, to collect all such rents, royalties, issues, and profits, as but not before they become due. On any such default, Debtor's right to collect such moneys shall cease, not only as to amounts accruing subsequently but also as to amounts then accrued and unpaid. In the event of default, Beneficiary, with or without notice and without regard to the adequacy of security for the indebtedness secured by this Deed of Trust, either in person or by agent, or by a receiver to be appointed by the court: (a) may enter on and take possession of the Property at any time and manage and control it in Beneficiary's discretion; and (b) with or without taking possession, may sue for or otherwise collect the rents, issues, and profits of the same, whether past due or coming due subsequently, and apply the same, less expenses of operation and collection, including reasonable attorney's fees, on any obligation secured by this Deed of Trust and in such order as Beneficiary determines. None of the foregoing acts shall cure or waive any default under this Deed of Trust or invalidate any act done pursuant to such notice.

22. Release

Without affecting the liability of Debtor or of any other party now or later bound by the terms of this Deed of Trust for any obligation secured by this Deed of Trust, Beneficiary, from time to time and with or without notice, may release any person now or later liable for the performance of such obligation, and may extend the time for payment or performance, accept additional security, and alter, substitute, or release any security.

23. Attorney’s Fees

In any action brought to foreclose this deed or to enforce any right of Beneficiary or of Trustee under this Deed of Trust, Debtor shall pay to Beneficiary and to Trustee attorney's fees in a reasonable sum, to be fixed by the court.

24. Remedies Not Exclusive

No remedy given by this Deed of Trust to Beneficiary or Trustee is exclusive of any other remedy under this Deed of Trust or under any present or future law. In the event of a default in the payment of any indebtedness secured by this Deed of Trust, and if such indebtedness is secured at any time by any other instrument, Beneficiary shall not be obligated to resort to any security in any particular order, and the exercise by Beneficiary of any right or remedy with respect to any security shall not be a waiver of or limitation on the right of Beneficiary to exercise, at any time or from time to time afterward, any right or remedy with respect to this deed.

25. Annual Statements

Debtor shall, on request made by Beneficiary, furnish the Beneficiary with annual statements covering the operations of the Property.

26. Late Charges

Beneficiary may collect a late charge not to exceed an amount equal to % of any installment that is not paid within days from its due date, to cover the extra expense involved in handling delinquent payments.

27. Binding Effect

This Deed of Trust applies to, inures to the benefit of, and binds, all parties to it, their heirs, legatees, devisees, administrators, executors, successors, successors in interest, and assigns. The term Beneficiary means the owner and holder, including pledges, of the Promissory Note secured by this Deed of Trust, whether or not named as Beneficiary. In this Deed of Trust, whenever the context so requires, the masculine gender includes the feminine and neuter, and the singular number includes the plural, and all obligations of each Debtor under this Deed of Trust are joint and several.

28. Acceptance of Trust

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 of a pending sale under any other Deed of Trust or of any action or proceeding in which Debtor, Beneficiary, or Trustee is a party unless brought by Trustee. Debtor requests that a copy of any notice of default and of any notice of sale under this Deed of Trust shall be mailed to Debtor at his address set out above.

29. This Amended and Restated Deed of Trust is an amendment to that certain Deed of Trust from the undersigned dated , a copy of which Deed of Trust is attached hereto as Exhibit A. This Amendment is being made at the request of the undersigned and is in no manner to be considered or construed as a novation of the indebtedness or security evidenced by said Deed of Trust shown in Exhibit A, and all terms and conditions of said Deed of Trust, except as specifically modified herein, shall remain in full force and effect.

This Deed of Trust was executed on the day and year first above written.

Debtors’ mailing address for notice is .