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HomeMy WebLinkAbout20081409NUM PGS...,,a,~ ADAMS COUNTY, NE DOCTAX~~, ~J,~ ~ CK# FiLED FEES !lo•5~PO11o.S.~CK#~~s 20081409 INST. N0. 2 0 ~ 4 0 CHG ACCI'# Date -8- 08 Time~°n RET FEES:_ CAS 11 R.0.0. CK#..._._ ~% ~r,,- ~~~~~ RETURN /-JP I~l2h,~cGrkD\ T~t ~ ,,Qx ~ , lAcLd~v1~ h Incti) REGISTER OF DEEDS NUM l ,%~'t rron l~~itza/~~,~ RD. COMP ~ ~. ~~ ~ ~-- GOMPARE ~~ a~ J GAQAS -' 'AO ~ Return To: First Nebraska Title Attn: Lisa ,~.- 2425 South 120'h Street Omaha, NE 68136 T-08109114 /o~~~ ~aos~~aa DEED OF TRUST AND SECURITY AGREEMENT THIS DEED OF TRUST AND SECURITY AGREEMENT is made and entered into as of the 13th day of March, 2008, BY AND AMONG J. LARRY FUGATE, whose address is: 208 S. Maize Road, Sedgwick County, Wichita, Kansas 67209, hereinafter referred to as "TRUSTOR" TRANSNATION TITLE INSURANCE COMPANY., whose address is: 2019 Walton Road, St. Louis, MO 63114, hereinafter referred to as "TRUSTEE" AND BANK OF AMERICA, N.A., a national banking association, whose address is: 100 N. Broadway, Wichita, Kansas, 67202, hereinafter referred to as "BENEFICIARY" RECITALS The Trustor is the owner of the property described in Schedule A hereto. The Trustor is borrowing the Note Amount from Beneficiary pursuant to a Credit Agreement dated as of March 4, 2003 (as amended, the "Credit Agreement"), among the Trustor, Pizza Hut of Southeast Kansas, Inc., Major Video of Kansas, Inc., Pizza Hut of South Central Kentucky, Inc., T B of America, Inc. and Beneficiary. Trustor has executed and delivered to Beneficiary its note dated the date hereof obligating it to pay the Note Amount or so much thereof as may be advanced in accordance with the terms of said Credit Agreement. The Trustor, in order to secure the payment thereof, has duly authorized the execution and delivery of this Deed of Trust. CERTAIN DEFINITIONS Unless the context otherwise specifies or requires, the following terms shall have the meanings herein specified; such definitions to be applicable equally to the singular and plural forms of such terms: ~ nf~~ 2oasi~o9 "Beneficiary" means Bank of American, N.A., a national banking association, its successors and assigns. "Chattels" means all materials, fixtures, fittings, appliances, apparatuses, heating, air conditioning, and ventilation equipment, furniture, fuel pumps, wash equipment, all other equipment, machinery, and articles of personal property and replacements thereof, now or at any time hereafter affixed to, attached to, placed upon, stored at, or used in any way in connection with the complete and comfortable use, enjoyment, occupancy, or operation of the Improvements or the Land. "Collateral" has the meaning set out in the Granting Clause. "Credit Agreement" means the Credit.Agreement dated as of March 4, 2003, as amended, among the Trustor, Pizza Hut of Southeast Kansas, Inc., Major Video of Kansas, Inc., Pizza Hut of South Central Kentucky, Inc., T B of America, Inc. and Beneficiary. "Deed of Trust" means this Deed of Trust and Security Agreement and all schedules and exhibits hereto and all amendments, modifications, supplements, and extensions hereof. "Deed of Trust Property" has the meaning set out in the Granting Clause. "Environmental, Health, and Safety Liabilities" means any loss, cost, expense, claim, demand, liability, notice of violation, order or direction, or other obligation of whatever kind or otherwise, based upon any Environmental Law relating to: (i) any environmental, health, or safety matter or condition, including, but not limited to: on-site or off-site contamination; sudden or non-sudden, accidental or non-accidental releases of, or exposure to, any Hazardous Materials; the transportation, storage, treatment, or disposal of Hazardous Materials; occupational safety and health; and regulation of chemical substances or products; (ii) fines, penalties, judgments, awards, settlements, legal or administrative proceedings, damages, losses, claims, demands, and response, remedial, or inspection costs and expenses arising under any Environmental Law; (iii) financial responsibility under any Environmental Law for cleanup costs or corrective actions, including for any removal, remedial, or other response actions, and for any natural resource damage; and (iv) any other compliance, corrective, or remedial action required under any Environmental Law. "Environmental Laws" means and includes: the Comprehensive Environmental Response, Compensation and Liability Act (12 U.S.C. §9601 et seq.); the Superfund Amendments and Reauthorization Act of 1986, Public Law No.99-499, 100 Stat. § 163; the Hazardous Material Transportation Act (49 U.S.C. §1801 et seq.); the Resource Conservation and Recovery Act (42 U.S.C. §6901 et seq.); the Clean Water Act (33 U.S.C. § 1251 et seq.); the Toxic Substance Control 2 ~ofzz Act, as amended (15 U.S.C. §2601 et seq.); the Occupational Safety and Health Act (29 U.S.C. §651 et seq.); any so-called "Superfund" or Superlien" law; and any federal state, or local statute, law, ordinance, code, rule, regulation, order, or decree regulating, relating to, or imposing liability or standards of conduct concerning, any Hazardous Materials or the regulation or protection of the environment, all as now in effect or as may hereafter be amended, enacted, promulgated, adopted, or otherwise in effect. "Events of Default" means those events and circumstances described as such in Article IV hereof and in Section IX of the Credit Agreement. "Hazardous Materials" means and includes: (i) asbestos or asbestos containing materials; (ii) oil, gasoline, or other petroleum products or byproducts; (iii) formaldehyde, polychlorinated biphenyls (PCB's), lead or lead dust, fuel storage, and natural or synthetic gas products; (iv) any toxic, explosive, infectious, mutagenic, carcinogenic, radioactive, dangerous, or hazardous materials (including, without limitation airborne particles); (v) any hazardous, toxic, or dangerous waste, substance, or material or pollutant defined as such in any Environmental Law; and (vi) any other substance which forms the basis of liability or the presence of which requires any investigation, reporting, or remediation under any Environmental Laws. "Improvements" means all structures or buildings, and replacements thereof erected upon the Land, including all buildings, structures, equipment, apparatus, machinery, and fixtures of every kind and nature whatsoever forming said structures or buildings or used or useful in connection with the operation of such structures or buildings by Trustor. "Indebtedness" collectively means: (a) all unpaid principal and accrued and unpaid interest under the Note, (b) all other obligations of Trustor to Beneficiary arising under the Loan Agreement, this Deed of Trust, or under any other of the Loan Documents, and (c) all other obligations of Trustor to Beneficiary, whether now existing or hereafter created, direct or contingent, including without limitation any and all future advances which Beneficiary may, at its sole option, make to Trustor. "Land" means the real property described in Schedule A hereto including all of the easements, rights, operating rights of way, privileges, and appurtenances thereunto belonging or in anyway pertaining, and all of the estate, right, title, interest, claim, or demand whatsoever of the Trustor therein and in the streets and ways adjacent thereto, strips and gores within or adjoining such real property, the air space and right to use said air space above such real property, and the drainage and water rights with respect to such real property, either in law or in equity, in possession or expectancy, now or hereafter acquired. "Leases" means all agreements affecting the use, enjoyment, or occupancy of the Land and/or the Improvements, now or hereafter entered into. "Note" means the promissory note executed and delivered by Trustor to Beneficiary of even date herewith in the principal amount of the Note Amount, and any renewals, extensions, or modifications thereof. 3 ,c~ o f ,Za 2oosi~og "Note Amount" means $550,000. "Trustor" means J. Larry Fugate. All terms of this Deed of Trust which are not defined above shall have the meaning set forth elsewhere in this Deed of Trust or in the Credit Agreement. GRANTING CLAUSE NOW, THEREFORE, the Trustor, in consideration of the Loan evidenced by the Note and in order to secure the payment of both the Indebtedness and all other Obligations of Trustor to Beneficiary, including, without limitation, the principal of, and the interest and any other sums payable on, the Note or this Deed of Trust and the performance and observance of all the provisions hereof and of the Note and the Credit Agreement, including, without limitation, the payment of any and all sums expended pursuant hereto exceeds the sum of the Note Amount, hereby irrevocably grants, bargains, transfers, sells, conveys and assigns unto Trustee, INTRUST, WITH POWER OF SALE, for the benefit and security of Beneficiary, under and subject to the terms of this Deed of Trust, all of its estate, right, title, and interest in, to, and under any and all of the following described property (collectively the "Collateral") whether now owned or hereafter acquired: (i) the Land; (ii) the Improvements; (iii) the Chattels; (iv) all proceeds of the conversion, voluntary or involuntary, of any of the foregoing into cash or liquidated claims, including, without limitation, proceeds of insurance and condemnation awards; and (v) to the extent assignable, all plans, specifications, architectural renderings, drawings, soil test reports, other reports of examination or analysis of the Land or the Improvements; (vi) all Leases and all right, title, and interest of the Trustor thereunder, including, without limitation, cash or securities deposited thereunder to secure performance by the lessees of their obligations thereunder, including the right upon the happening of an Event of Default, to receive and collect the rents thereunder; (vi) to the extent assignable, all operating rights agreements, management contracts, permits, certificates, licenses, approvals, contracts, purchase and sale agreements, purchase options, entitlement, development rights and authorizations, however characterized, issued or in any way furnished for the acquisition, construction, development, operation, and use of the Land, the Improvements and/or leases, including, building permits, environmental certificates, licenses, certificates of operation and occupancy, warranties, and guarantees; 4 ~of,Z,z 2oosi~09 (vii) All contract rights, general intangibles, chattel paper, documents, instruments, equipment and books and records relating to any of the foregoing; (viii) Any monies on deposit with or for the benefit of Beneficiary, including deposits for the payment of insurance or real estate taxes and any cash collateral account; (ix) All proceeds, products, replacements, additions, substitutions, renewals, and accession of and to the Land, the Improvements, the Chattels, or any other property of the types described in the preceding granting clauses; and (x) Any and all after-acquired right, title, or interest of Trustor in and to the Land, the Improvements, the Chattels, or any other property of the types described in the preceding granting clauses. THIS DEED OF TRUST SECURES INDEBTEDNESS WHICH THE TRUSTOR INCURRED FOR THE PURPOSE OF MAKING AN IMPROVEMENT ON THE LAND IN WHICH THE SECURITY INTEREST IS GRANTED BY TRUSTOR HEREBY. The total principal amount, exclusive of interest, of the Indebtedness, including any future debts, advances, liabilities or obligations, not including, however, any sums advanced for the, protection and/or insurance of the Property or the Beneficiary's interest therein, shall not exceed the sum of Five Hundred Fifty Thousand Dollars ($550,000.00), PROVIDED, HOWEVER, THAT NOTHING CONTAINED HEREIN SHALL CONSTITUTE A COMMITMENT TO MAKE ADDITIONAL OR FUTURE LOANS OR ADVANCES IN ANY AMOUNTS. ARTICLE I Representations and Warranties of the Trustor Section 1.01. Title Warranties. Trustor has good and marketable title to the fee simple estate described in Exhibit A hereto. The Trustor owns and will own all of the other Collateral free and clear of any liens and claims. This Deed of Trust is and will remain a valid and enforceable first lien on all of the Collateral subject only to the exceptions referred to above. The Trustor will preserve such title and will forever warrant and defend the validity and priority of the lien hereof against the claims of all persons and parties whomsoever. Section 1.02. Power and Authority of Trustor. The Trustor (and the undersigned representative of Trustor) has full power and lawful authority to subject the Collateral to the lien of this Deed of Trust in the manner and form herein done or intended hereafter to be done. No consent of any other person or entity and no consent, license, approval or authorization of, exemption, or registration or declaration is required to be performed or obtained by Trustor in connection with the execution, delivery, or performance of this Deed of Trust or any portion hereof. Trustor represents and warrants that Trustor is not a "Foreign person" within the meaning of § 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and the related Treasury Department regulations. ~ of d~ 2OU814O9 Section 1.03. Permits for Operation of Collateral; Lawful Operations. The Trustor has all necessary certificates, licenses, authorizations, registrations, permits, and/or approvals necessary for the present use and operation of the Collateral as a restaurant facility and each part thereof and all required environmental permits, all of which as of the date hereof are in full force and effect and not, to the knowledge of the Trustor, subject to any revocation, amendment, release, suspension, forfeiture, or the like, and the present and/or contemplated use and/or occupancy of the Premises does not conflict with or violate any such certificate, license, authorization, registration, permit, or approval or any applicable law, statute, regulation, ordinance, order, or decree. Section 1.04. Hazardous Materials. There are no Hazardous Materials on, in, or under the Collateral, except those in compliance with all applicable Environmental-Laws, and neither Trustor nor any prior owner or occupant of the Collateral has received any notice or advice from any governmental agency or any source whatsoever with respect to Hazardous Materials on, under, from, or affecting the Collateral or asserting the existence of any Environmental, Health, and Safety Liability. Trustor covenants that the Collateral shall be kept free of Hazardous Materials, and neither Trustor nor any occupant of the Collateral shall use, transport, store, dispose of, or in any manner deal with Hazardous Materials on the Collateral, except in compliance with all applicable Environmental Laws. Trustor shall comply with, and ensure compliance by all occupants of the Collateral with, all applicable Environmental Laws and shall keep the Collateral free and clear of any liens imposed pursuant to such laws. In the event that Trustor receives any notice or advice from any governmental agency or any source whatsoever with respect to Hazardous Materials on, from, or affecting the Collateral or asserting any potential Environmental, Health, or Safety Liability, Trustor shall immediately notify Beneficiary. Trustor shall at its cost conduct and complete all investigations, studies, sampling, and testing, and all removal and remedial actions necessary to clean up and remove all Hazardous Materials from the Collateral in accordance with all applicable federal, state, and local laws, ordinances, rules, regulations, and administrative and judicial orders and decrees. The obligations and liabilities of Trustor under this Section 1.04 shall survive any entry of a judgment of foreclosure or the delivery of a deed in lieu of foreclosure of this Deed of Trust and any discharge of this Deed of Trust upon payment in full of the Obligations or otherwise and are in addition to the obligations of Trustor under any separate indemnity or other agreement. Section 1.05. Proceedings Against Trustor. There is no action or proceeding threatened or pending against Trustor which might adversely affect (a) the rights of Beneficiary under any or all of the Note, this Deed of Trust, or any other Loan Document, (b) the ability of Trustor to perform the obligations of Trustor under this Deed of Trust or under any other agreement or instrument delivered by Trustor to Beneficiary, or (c) the Collateral or any portion thereof. ARTICLE II Assignment of Rents and Profits Section 2.01. Assi ent. As further security for the payment of the Obligations, the Trustor hereby absolutely and irrevocably assigns to Trustee all of Trustor's interest in rents, including, without limitation, all issues and profits of the Collateral, together with all Leases and other documents evidencing such rents, issues, and profits now or hereafter in effect and any and all 6 rJ' of sta. 2oogi4oy deposits held as security under said Leases or other document. Nothing contained in the foregoing sentence shall be construed to bind the Trustee to the performance of any of the covenants, conditions, or provisions contained in any such Lease or other document or otherwise to impose any obligation on Trustee, except that Trustee shall be accountable for any money actually received pursuant to such assignment. Trustor hereby grants to Trustee the right to (i) enter upon and take possession of the Collateral for the purpose of collecting the said rents, issues, and profits; (ii) to dispossess by the usual summary proceedings any tenant defaulting in the payment thereof; (iii) let the Collateral or any part thereof; and (iv) apply the said rents, profits, and issues after payment of all necessary expenses to the payment of the indebtedness. Such assignment and grant shall continue in effect until the Obligations are paid. The execution of this Deed of Trust constitutes and evidences the irrevocable consent of Trustor to the entry upon and taking possession of the Collateral by Trustee pursuant to such grant, whether foreclosure or other remedy has been instituted or not and without applying for a receiver. Until the occurrence of an Event of Default, Trustor shall be entitled to receive said rents, issues, and profits. Such right of the Trustor to collect and receive said rents, issues, and profits maybe revoked by Beneficiary upon the occurrence of an Event of Default by giving not less than five days written notice of such revocation to Trustor. Trustor hereby appoints Trustee as its attorney-in-fact, coupled with an interest, to receive and collect all rent, additional rent, and any other sums due under the terms of each Lease and to direct any tenant, by written notice or otherwise, to forward such rent, additional rent, or other sums by mail or in person to Trustee. Section 2.02. No Amendment. Trustor shall not collect, accept, or anticipate any rents from any Lessee or tenant of a period of time in excess of one month prior to the due date, or accrual of such rent, whichever is lesser. Trustor shall not execute, modify, amend, surrender, or terminate any Lease without the prior written consent of Beneficiary. In every instance where Beneficiary does approve a new Lease, the lessee must execute and deliver to Beneficiary a subordination and attornment agreement in form and substance satisfactory to Beneficiary. ARTICLE III Covenants of Trustor Trustor hereby covenants and agrees as follows: Section 3.01. Payment of Indebtedness and Incorporation of Covenants, Conditions, and Agreements. Trustor will pay the Indebtedness at the time and in the manner provided in the Note, this Deed of Trust, and the Loan Documents (as hereinafter defined). All of the representations, warranties, covenants, conditions, and agreements contained in the Note and the Loan Documents are hereby made a part of this Deed of Trust to the same extent and with the same force as if fully set forth herein, and Trustor shall promptly perform all of its obligations. under all of the Loan Documents. Section 3.02. Further Assurances. Trustor will, at the cost of Trustor, execute, acknowledge, and deliver all such further acts, deeds, conveyances, deeds of trust, assignments, notices, transfers, and assurances as Beneficiary shall from time to time require for the better assuring, conveying, assigning, transferring, and confirming unto Trustee the property and rights hereby conveyed or assigned or intended now or hereafter to be so conveyed or assigned; or which Trustor may be or g of d,Z 2oos~~oo may hereafter become bound to convey or assign unto Trustee; or for carrying out the intention of facilitating the performance of the terms of this Deed of Trust; or for filing, registering, or recording this Deed of Trust or any such instrument of assurance. Section 3.03. Recording and Filing Costs and Fees. Trustor will pay all filing, registration, or recording fees and all expenses incident to the execution and acknowledgment of this Deed of Trust, any amendment supplemental hereto, any assignment of rents, profits, and leases, and any instrument of further assurance and all federal, state, county, and municipal taxes (including any applicable registration tax), assessments, duties, and imposts arising out of or in connection with the execution, delivery, and enforcement of the Note, this Deed of Trust, any amendment supplemental hereto, or any instrument of further assurance. Section 3.04. Sale, Assignment, Leasing, Subleasing, or Mortgaging of Collateral. Trustor shall not sell, convey, alienate, encumber, pledge, transfer, assign, lease, or sublease any of the Collateral or any of its rights thereunder, without the written consent of Beneficiary, which consent Beneficiary may withhold in its sole discretion. A sale, conveyance, alienation, encumbrance, pledge, transfer, assignment, lease, or sublease within the meaning of this Section shall be deemed to include, without limitation, (i) an installment sales agreement wherein Trustor agrees to sell the Collateral or any part thereof for a price to be paid in installments; (ii) the grant of a security interest in any of Trustor's right, title, and interest in and to any Collateral; or (iii) the voluntary or involuntary sale, conveyance, or transfer of 50% or more of the issued and outstanding shares of common stock of Trustor having voting rights by operation of law or otherwise, or the creation or issuance of new stock by which an aggregate of more than 5% of Trustor's stock shall be vested in a party or parties who are not now stockholders. Section 3.05. Trustor shall at all times purchase and maintain the following insurance: (a) Casualty Insurance. Trustor agrees until the Indebtedness is fully paid, to provide, maintain, and deliver to Beneficiary policies of fire, windstorm, flood, and extended coverage insurance for the full replacement value of the Improvements in such companies and in such form as may be satisfactory to Beneficiary, upon the buildings and Improvements now or hereafter situated on the Collateral and to deliver to Beneficiary, with Deed of Trust clauses satisfactory to Beneficiary, and to provided Beneficiary with certificates of insurance evidencing such coverage from time to time. Full power is hereby conferred on Beneficiary to settle or compromise all claims under all policies in excess of $25,000 and to demand, receive, and receipt for all monies becoming payable thereunder, and to assign all policies to any subsequent owner of the Note or to the purchaser of the Collateral at any foreclosure or execution sale, and, in the event of loss under any of the policies of insurance herein referred to in excess of $25,000, the proceeds of such policy shall be paid by the insurer jointly to Beneficiary and Trustor and Trustor agrees that Beneficiary, at its sole and absolute discretion, may apply the same or a part thereof as a payment on account of the debt secured hereby, whether or not then due and payable, or shall apply the same, or apart thereof, toward the alteration, reconstruction, repair, or restoration of the Collateral, either to the portion thereof by which said loss was sustained or any other portion thereof. (b) Liability Insurance. Trustor shall at all times maintain general comprehensive liability insurance (including builders' risk) with such insurance companies and in such form as may y of~z ~oosi4oo be satisfactory to Beneficiary in an amount not less than $5,000,000 and the Beneficiary shall be named as an additional insured thereon. (c) Workers Compensation Insurance. Trustor shall at all times maintain workers compensation insurance as maybe required by law. (d) Policy Provisions. All such policies and any renewals thereof shall contain a provision that such insurance may not be canceled or amended by the issuer thereof without at least 30 days' advance written notice to Beneficiary. Section 3.06. Restoration. Trustor agrees to repair, restore, or rebuild promptly any building or Improvement now or hereafter on the Land which may become damaged or be destroyed; except to the extent the Beneficiary elects to apply the casualty insurance proceeds payable as a result of such damage or destruction to payment on account of the debt secured hereby pursuant to the terms of Section 3.05 above. Trustor further agrees to complete, within a reasonable time, any building or buildings now or at any time in process of erection upon the Collateral. Section 3.07. Inspection. Beneficiary shall have the right to inspect the Collateral at all reasonable times, and access thereto shall be permitted for that purpose. Section 3.08. Condemnation. All awards of damages by reason of condemnation for public use of all or any portion of the Collateral are hereby assigned and shall be paid to Beneficiary, which may, in its sole discretion, apply all or any portion of such award on account of the sum or sums hereby secured, or permit Trustor to receive and use it. Section 3.09. Impositions. So long as any part of the Indebtedness shall be unpaid, Trustor shall pay and remove all statutory or other lien claims, and pay, when the same shall become due, all taxes and assessments now existing or hereinafter levied or assessed upon the Collateral, or the interest therein created by this Deed of Trust, or which, under the laws of any state, may be levied or assessed against Beneficiary, or its Deed of Trust interest in the Collateral, the Indebtedness, or this Deed of Trust. Section 3.10. Maintenance of Collateral. Trustor shall cause the Collateral to be maintained in a good and safe condition and repair. The improvements thereon and the Personal Property shall not be abandoned, removed, demolished, or materially altered without the consent of Beneficiary. Trustor shall promptly comply with all laws, orders, and ordinances affecting the Collateral, or the use thereof. Trustor shall promptly repair, replace, or rebuild any part of the Collateral which may be destroyed by any casualty, or become damaged, worn, or dilapidated or which may be affected by any proceeding of the character referred to in Section 3.08 and shall complete and pay for any structure at any time in the process of construction or repair on the Collateral. Section 3.11. Compliance With Laws; Zoning. Trustor shall comply with all requirements of law or municipal ordinances with respect to the Collateral and the use thereof. Trustor shall not initiate, join in, acquiesce in, or consent to any change in any private restrictive covenant, zoning law or other public or private restriction, limiting or defining the uses which may be made of the Collateral or any part thereof. If under applicable zoning provisions the use of all or any portion of 9 ~o ,f ~d 2QU814Q9~ the Collateral is or shall become a nonconforming use, Trustor will not cause or permit such nonconforming use to be discontinued or abandoned without the express written consent of Beneficiary. Section 3.12. Estoppel Certificates. (a) Within ten days after request by Beneficiary, Trustor shall furnish Beneficiary with a statement, duly acknowledged and certified, setting forth (i) the amount of the original principal amount of the Note, (ii) the unpaid principal amount of the Note, (iii) the rate of interest of the Note, (iv) the date installments of interest and/or principal were last paid, (v) any offsets or defenses to the payment of the Indebtedness, if any, and (vi) that the Note-and this Deed of Trust are valid, legal, and binding obligations of Trustor and have not been modified except pursuant to a writing executed by Trustor and Beneficiary. (b) Within ten days after request by Beneficiary, Trustor will furnish Beneficiary with estoppel certificates from any lessees of the Collateral, and Trustor shall include in all of its Leases a requirement that its lessees deliver such estoppel certificates upon the request of Trustor or Beneficiary. Section 3.13. Changes in the Laws Re ag rding Taxation. If any law is enacted or adopted or amended after the date of this Deed of Trust which imposes a tax, either directly or indirectly, on the Indebtedness or Beneficiary's interest in the Collateral, Trustor will pay such tax, with interest and penalties thereon, if any. In the event Beneficiary is advised by counsel chosen by it that the payment of such tax or interest and penalties by Trustor would be unlawful or taxable to Beneficiary or unenforceable or provide the basis for a defense of usury, then in any such event, Beneficiary shall have the option, by written notice of not less than 90 days, to declare the Indebtedness immediately due and payable. ARTICLE IV Events of Default Each of the following constitutes an Event of Default under this Deed of Trust: Section 4.01. Event of Default Under Note or Other Loan Documents. Trustor shall fail to make any payment required by the Note when due or there shall occur any other event of default as set forth in the Note or any of the Loan Documents. Section 4.02. Assignment of Collateral. Trustor shall make or allow a sale, assignment, lease, sublease, Deed of Trust, or other security interest or encumbrance in any manner of their interest in whole or any part of the Collateral or of the improvements thereon or of the rents, revenues, proceeds, issues, and profits of any part thereof or the income therefrom (other than such other assignments, Deed of Trusts, security interests, or encumbrances as may be held by Beneficiary) which is prohibited by Section 3.04 hereof. 10 1I af,za ~oo8i~os Section 4.03. Untrue Representations and Warranties. Any representation or warranty made by Trustor herein or in any of the Loan Documents shall prove to be untrue in any material respect. Section 4.04. Defaults in Covenants. There shall exist any default in the performance of Trustor's covenants and obligations contained herein or in any of the Loan Documents. Section 4.05. Liti ag tion. The title of Trustor to the Collateral shall become the subject matter of litigation which would or might, in Beneficiary's opinion, upon final determination, result in substantial impairment or loss of the security provided in this instrument (including the proceeds under any lender's title insurance policy of which Beneficiary is the Beneficiary) and, upon notice by Beneficiary to Trustor, such litigation is not dismissed within 60 days of such notice. Section 4.06. Bankruptcy or Insolvency. Trustor or any guarantor shall become insolvent or admit in writing its inability to pay its debts as they mature, or applies for, consents to, or acquiesces in, the appointment of a trustee, custodian, or receiver for Trustor or any guarantor or any property thereof; or, in the absence of such application, consent, or acquiescence, a Trustee, custodian, or receiver is appointed for the Trustor or any guarantor or for a substantial part of property of Trustor or any guarantor, and is not discharged within 30 days; or any bankruptcy, reorganization, debt arrangement, or other proceeding under any bankruptcy or insolvency law, or any dissolution or liquidation proceeding is instituted by or against Trustor or any guarantor and, if instituted against Trustor or any guarantor or a substantial part of the property of Trustor or any guarantor, is not discharged within 30 days; or any bankruptcy, reorganization, debt arrangement, or other proceeding under any bankruptcy or insolvency law, or any dissolution or liquidation proceeding is instituted by or against Trustor or any guarantor is consented to or acquiesced in by Trustor or any guarantor or remains undismissed for 30 days; or any warrant of attachment is issued against any substantial portion of the property of Trustor or any guarantor which is not released within 30 days of service. ARTICLE V Remedies of Trustee Section 5.01. Acceleration; Remedies; Power of Sale. Upon an Event of Default by Trustor, Beneficiary may declare all sums secured hereby immediately due and payable by delivery to Trustee of a written declaration of default. THE TRUSTEE SHALL HAVE THE POWER OF SALE OF THE PROPERTY and if Beneficiary desires the Property to be sold, it shall deposit with Trustee this Deed of Trust, the Note, and all other promissory notes and documents evidencing Obligations secured hereby, and shall deliver to Trustee a written notice of default and election to case the Property to be sold, and the Trustee in turn shall prepare a similar Notice in the form required by law, which shall be duly filed for record by Trustee. (a) After the lapse of such time as may be required by law following the recordation of said notice of default, and notice of default and notice of sale having been given as required by law, Trustee, without demand on Trustor, shall sell the Property on the date and at the time and place designated in said notice of sale, at public auction to the highest ~~idder, the purchase price payable in lawful money of the United States at the time of sale. The person conducting the sale may, for any 11 /.L ofd 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 (1) 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 his 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 the truthfulness thereof. Any person, including Beneficiary, may purchase at the sale. (b) When Trustee sells pursuant to the powers herein, the Trustee'shall apply the proceeds of the sale first to payment of the costs and expenses of exercising the power of sale and of the sale, including but not limited to, the payment of the Trustee's fees actually incurred, and then to the items in subparagraph (c) in the order there stated. (c) After paying the items specified in subparagraph (b) if the sale is by Trustee, or after payment of proper court costs if the sale is pursuant to judicial foreclosure, the proceeds of sale shall be applied in the order stated below: (i) Cost of any evidence of title procured in connection with such sale and of any revenue stamps; (ii) Attorney fees and costs of collection; (iii) All sums then secured by this Deed of Trust; (iv) Junior trust deeds, mortgages, or other lienholder; (v) The remainder, if any, to the person legally entitled thereto. Section 5.02. Duties and Obligations of Trustee. (a) The duties and obligations of Trustee shall be determined solely by the express provisions of this Deed of Trust and applicable law and Trustee shall not be liable except for the performance of s~~ch duties and obligations as are specifically set forth herein, and no implied covenants or obligations shall be imposed upon Trustee; (b) No provision of this Deed of Trust shall require Trustee to expend or risk its own funds, or otherwise incur any financial obligations in the performance of any of its duties hereunder, or in the exercise of any of its right or powers, if it shall have grounds for believing that the repayment of such funds or adequate indemnity against such risk or liability; is not reasonably assured to it; (c) Trustee may consult with counsel of its own choosing and the advice of such counsel shall be full and complete authorization and protection in the respect of any action taken or suffered by it in good faith and reliance thereon; (d) Trustee shall not be liable for any action taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Deed of Trust; (e) Trustee shall not be responsible for the payment of any unpaid taxes on the Property due and owing at the time of the sale of all or any part of the Property. Section 5.03. Forbearance by Beneficiary or Trustee Not a Waiver. Any forbearance by Beneficiary or Trustee in exercising any right or remedy hereunder, or otherwise afforded by 12 2Q~814O~ applicable law, shall not be a waiver of or preclude the exercise of any right or remedy hereunder. Likewise, the waiver by Beneficiary or Trustee of any default of Trustor under this Deed of Trust shall not be deemed to be a waiver of any other or similar defaults subsequently occurring. Section 5.04. Option to Foreclose as Mortgage. Upon the occurrence of any default hereunder, Beneficiary shall have the option to foreclose this Deed of Trust in the manner provided by law for the foreclosure of mortgages on real property. Section 5.05. Trustor's Rights, Absent Default. Until any default as defined herein, the Trustor, its successors and assigns, shall possess and enjoy the Property. Upon payment of all sums secured by this Deed of Trust, Beneficiary shall request Trustee to reconvey the-property and shall surrender this Deed of Trust and the Note, and all other documents evidencing indebtedness secured by this Deed of Trust to Trustee. Trustee shall reconvey the property without warranty and without charge to the persons legally entitled thereto. The reconveyance may designate the grantee therein as "the person or persons entitled thereto," and the recitals therein of any matters or facts shall be conclusive proof of the truthfulness thereof. Such person or persons shall pay all costs of recording, if any. Section 5.06. Beneficiary's Powers. Without affecting or releasing the liability of the Trustor or any other person liable for the payment of any Obligations herein mentioned, and without affecting the lien charge of this Deed of Trust upon any portion of the Property not then or theretofore released as security for the full amount of all unpaid Obligations, Beneficiary may, from time to time and without notice at the request of one or more Trustors (i) release any person so liable, (ii) extend or renew the maturity or alter any of the terms of any such obligations, (iii) grant other indulgences, (iv) release or reconvey, or cause to be released or reconveyed at any time at Beneficiary's option any parcel or all of the Property, (v) take or release any other or additional security for any obligation herein mentioned, (vi) make compositions or other arrangements with debtors in relation thereto. All Trustors shall be jointly and severally obligated and bound by the actions of the Beneficiary or any one or more Trustor as stated in this paragraph. Section 5.07. Remedies Not Exclusive. Trustee and Beneficiary, and each of them, shall be entitled to enforce payment and performance of any indebtedness or Obligations secured hereby and to exercise all rights and powers under this Deed of Trust or under any other agreement executed in connection herewith or any laws now or hereafter in force, notwithstanding some or all of the such indebtedness and Obligations secured hereby may now or hereafter be otherwise secured, whether by mortgage, deed of trust, pledge, lien, assignment or otherwise. Neither the acceptance of this Deed of Trust nor its enforcement, whether by court action or pursuant to the power of sale or other powers herein contained, shall prejudice or in any manner affect Beneficiary's or Trustee's right to realize upon or enforce any other security now or hereafter held by Beneficiary or Trustee, it being agreed that Beneficiary and Trustee, and each of them, shall be entitled to enforce this Deed of Trust and any other security now or hereafter held by Beneficiary or Trustee in such order and manner as they or either of them may in their absolute discretion determine. No remedy herein conferred upon or reserved to Beneficiary or Trustee is intended to be exclusive of any other remedy herein or by law provided or permitted, but each shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. Every power or remedy provided under this Deed of Trust to Beneficiary or~Trustee or to which either of them 13 l~ o~-d~ `~QQ81409 may be otherwise entitled, maybe exercised, concurrently or independently, from time to time and as often as may be deemed expedient by Beneficiary or Trustee and either of them may pursue inconsistent remedies. Nothing herein shall be construed as prohibiting Beneficiary from seeking a deficiency judgment against the Trustor to the extent such action is permitted by law. Section 5.08. Trustor's Waiver of Appraisement, Redemption, Marshaling Rights, Etc. Trustor agrees, to the full extent that Trustor may lawfully so agree, that Trustor will not at any time insist upon, or plead, or in any manner whatever claim the benefit of, any appraisement, valuation, stay, extension, or redemption law now or hereafter in force in order to prevent or hinder the enforcement or foreclosure of this instrument or the absolute sale of the Collateral or the possession thereof by any purchaser at any sale made pursuant to any provision hereof, or pursuant to the decree of any court of competent jurisdiction; but Trustor, for Trustor and-all who may claim through or under Trustor, so far as Trustor or those claiming through or under Trustor now or hereafter may do so lawfully, hereby waives the benefits of all such laws. Trustor, for Trustor and all who may claim through or under Trustor, waives, to the extent that Trustor may lawfully do so, any and all right to have the Collateral marshaled upon any foreclosure of the lien hereof, and agrees that Trustee or any court having jurisdiction to foreclose such lien may sell the Collateral as an entirety or in parcels. If any law in this Section referred to and now in force, of which Trustor or Trustor's successors or assigns might take advantage despite the provisions hereof, shall hereafter be repealed or cease to be in force, such law shall not thereafter be deemed to constitute any part of the contract herein contained or to preclude the operation or application of the provisions of this Section. Section 5.09. Costs and Expenses. All costs and expenses (including attorneys' fees) incurred by Beneficiary in protecting and enforcing Beneficiary's rights hereunder shall, to the full extent allowed bylaw, constitute a demand obligation owing by Trustor to the party incurring such costs and expenses and shall draw interest at the rate set forth in the Note, all of which shall constitute a portion of the Indebtedness, shall become a lien on the Collateral and shall be secured by this Deed of Trust. ARTICLE VI Miscellaneous Section 6.01. Advances by Beneficiary. Each covenant herein contained shall be performed and kept by Trustor solely at Trustor's expense. If Trustor shall fail to perform or keep any of the covenants of whatsoever kind or nature contained in this instrument, Beneficiary, or any receiver appointed hereunder, may, but shall not be obligated to, make advances to perform the same in Trustor's behalf, and Trustor hereby agrees to repay such sums upon demand, plus interest at the rate set forth in the Note. Any sums so paid by Beneficiary shall constitute a portion of the Indebtedness, shall become a lien on the Collateral, and shall be secured by this Deed of Trust. No such advance shall be deemed to relieve Trustor from any default hereunder. Section 6.02. Defense of Claims. Trustor will notify Beneficiary promptly in writing of the commencement of any legal proceedings affecting the lien hereof or the Collateral, or any part thereof, and will take such action, employing attorneys agreeable to Beneficiary, as may be 14 2008E 409 necessary to preserve Trustor's and Beneficiary's rights affected thereby; and should Trustor fail or refuse to take any such action, Beneficiary may, upon giving prior written notice thereof to Trustor, take such action on behalf and in the name of Trustor and at Trustor's expense. Moreover, Beneficiary, on Beneficiary's behalf, may take such independent action in connection therewith as Beneficiary may, in Beneficiary's discretion, deem proper; Trustor hereby agreeing that all sums advanced or all expenses incurred in such actions, plus interest at the rate set forth in the Note, will, on demand, be reimbursed to Beneficiary or any receiver appointed hereunder, all of which shall constitute a portion of the Indebtedness, shall become a lien on the Collateral, and shall be secured by this Deed of Trust. Section 6.03. Successor Trustee. Beneficiary may from time to time appoint a successor to any Trustee named herein pursuant to the applicable provisions of Nebraska law. Upon such appointment, the successor shall be vested with all powers and duties conferred upon Trustee herein. Section 6.04. Renewals, Amendments, and Other Security. Renewals and extensions ofthe Indebtedness may be given at any time, and amendments may be made to agreements relating to any part of such Indebtedness or the Collateral, and Beneficiary may take or may now hold other security for the Indebtedness. Without notice to or consent of Trustor, Beneficiary may resort first to such other security or any part thereof, or first to the security herein given or any part thereof, or from time to time to either or both, even to the partial or complete abandonment of either security, and such action shall not be a waiver of any rights conferred by this instrument, which shall continue as a lien upon the Collateral not expressly released until the Note and all other Indebtedness secured hereby is fully paid. Section 6.05. Indemnification. Trustor shall protect, defend, indemnify, and save harmless Trustee and Beneficiary from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs, and expenses (including without limitation reasonable attorneys' fees and expenses to the extent permitted by law), imposed upon or incurred by or asserted against Trustee or Beneficiary by reason of (a) ownership of this Deed of Trust, the Collateral, or any interest therein; (b) any accident, injury to, or death of persons or loss of or damage to property occurring in, on, or about the Collateral or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets, or ways; (c) any use, nonuse, or condition in, on, or about the Collateral or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets, or ways; (d) any failure on the part of Trustor to perform or comply with any of the terms of this Deed of Trust; (e) performance of any labor or services or the furnishing of any materials or other property in respect of the Collateral or any part thereof; (f) the failure of any person to file timely with the Internal Revenue Service an accurate Form 1099-B, Statement for Recipients of Proceeds from Real Estate, Broker and Barter Exchange Transactions, which maybe required in connection with the Deed of Trust, or to supply a copy thereof in a timely fashion to the recipient of the proceeds of the transaction in connection with which this Deed of Trust is made; (g) the presence, disposal, escape, seepage, leakage, spillage, discharge, emission, release, or threatened release of any Hazardous Materials on, from, or affecting the Collateral or any other property; (h) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to such Hazardous Materials; (i) any lawsuit brought or threatened, settlement reached, or government order relating to such Hazardous Materials; or (j) a.ny violation of any Environmental Laws or the assertion of any Environmental, Health, or Safety, plus interest at the rate set forth in the 15 /~ ofoZ~ 2008409 Note, shall become immediately due and payable, shall constitute a portion of the Indebtedness, shall become a lien on the Collateral, and shall be secured by this Deed of Trust. The obligations and liabilities of Trustor under this Section shall survive any termination, satisfaction, assignment, entry of a judgment of foreclosure, or delivery of a deed in lieu of foreclosure of this Deed of Trust. Section 6.06. Security Agreement. This Deed of Trust its both a real property Deed of Trust and a "security agreement" within the meaning of the Kansas and the Nebraska Uniform Commercial Code. The Collateral includes both real and personal property and all other rights and interests, whether tangible or intangible in nature, of Trustor in the Collateral. Trustor by executing and delivering this Deed of Trust has granted and hereby grants to Beneficiary, as security for the Indebtedness, a security interest in the Collateral to the full extent that the Collateral maybe subject to the Uniform Commercial Code (said portion of the Collateral so subject to the Uniform Commercial Code being called in this Section the "Collateral"). If an Event of Default shall occur, Beneficiary, in addition to any other rights and remedies which it may have, shall have and may exercise immediately and without demand, any and all rights and remedies granted to a secured party upon default under the Uniform Commercial Code, including, without limiting the generality of the foregoing, the right to take possession of the Collateral or any part thereof, and to take such other measures as Beneficiary may deem necessary for the care, protection, and preservation of the Collateral. Upon request or demand of Beneficiary, Trustor shall at its expense assemble the Collateral and make it available to Beneficiary at a convenient place acceptable to Beneficiary. Trustor shall pay to Beneficiary on demand any and all expenses, including legal expenses and attorneys' fees, incurred or paid by Beneficiary in protecting its interest in the Collateral and in enforcing its rights hereunder with respect to the Collateral to the full extent allowed by law. Any notice of sale, disposition, or other intended action by Beneficiary with respect to the Collateral sent to Trustor in accordance with the provisions hereof at least ten days prior to such action, shall constitute commercially reasonable notice to Trustor. The proceeds of any disposition of the Collateral, or any part thereof, may be applied by Beneficiary to the payment of the Indebtedness in such priority and proportions as Beneficiary in its discretion shall deem proper. The addresses of Trustor and Beneficiary are provided in Section 6.13 of this Deed of Trust. Section 6.07. Unenforceable or Inapplicable Provisions. If any provision hereof or of any of the Loan Documents is invalid or unenforceable, the other provisions hereof or of the Loan Documents shall remain in full force and effect, and the rerrlaining provisions thereof shall be liberally construed in favor of Beneficiary in order to effectuate the provisions hereof, and the invalidity of any provision hereof shall not affect the validity or enforceability of any such provision. Section 6.08. Rights Cumulative. Each right, power, anc~ remedy herein given to Beneficiary shall be cumulative and not exclusive; and each right, power, and remedy, whether specifically herein given or otherwise existing, may be exercised from time to time and so often and in such order as may be deemed expedient by Beneficiary, as the case may be, and the exercise, or the beginning of the exercise, of any such right, power, or remedy shall not be deemed a waiver of the right to exercise, at the same time or thereafter, any other right, power, or remedy. No delay or omission by Beneficiary in the exercise of any right, power, or remedy shall impair any such right, power, or remedy, or operate as a waiver thereof or of any other right, power, or remedy then or thereafter existing. 16 ~ r1 6~ oZPL ~oo~i4o9 Section 6.09. Waiver by Beneficiary. Any and all covenants in this instrument may from time to time, by instrument in writing signed by Beneficiary, be waived to such extent and in such manner as Beneficiary may desire, but no such waiver shall ever affect or impair Beneficiary's rights or liens hereunder, except to the extent specifically stated in such written instrument. Section 6.10. Successors and Assigns. This instrument is binding. upon Trustor, Trustor's successors and permitted assigns, and shall inure to the benefit of Beneficiary, Beneficiary's successors, beneficiaries, and assigns, and the provisions hereof shall likewise be covenants running with the land. Section 6.11. Article and Section Headings. The article and section headings in this instrument are inserted for convenience only and shall not be considered a part of this instrument or used in its interpretation. Section 6.12. Counterparts. This instrument may be executed in any number of counterparts, each of which shall, for all purposes, be deemed to be an original and which together shall constitute but one agreement. Section 6.13. Notices. Any notice, demand, statement, request, or consent made hereunder shall be in writing and shall be deemed given when postmarked, addressed, and mailed by first class mail to the address of the party to whom such notice is to be given, as provided in the Credit Agreement. Section 6.14. No Oral Change. This Deed of Trust, and any provisions hereof, may not be modified, amended, waived, extended, changed, discharged, or terminated orally or by any act or failure to act on the part of Trustor or Beneficiary, but only by an agreement in writing signed by both of the parties hereto. Section 6.15. Governing Law. This Deed of Trust shall be construed in accordance with the laws of the State of Nebraska, and such laws shall govern all rights and liabilities arising from this Deed of Trust and the interpretation and construction thereof. Any provision of this Deed of Trust which conflicts with or is prohibited by the law of any state shall, as to such state, be ineffective only to the extent of such provision, but without invalidating any of the remaining provisions hereof. The Trustor specifically agrees that all loan documents except this Deed of Trust will be governed by Kansas law (without regard to any conflict of laws principles) because the principal offices of Trustor and Beneficiary and the place for payment of the Note and performance of the loan documents other than this Deed of Trust and the place where the loan documents were negotiated, executed and delivered is Wichita, Kansas and the Trustor and Beneficiary intend that Kansas law will be applied. Section 6.16. Trustor Not Released. Extension of the time for payment or modification or amortization of the sums secured by this Deed of Trust granted by Beneficiary to any successor in interest of Trustor shall not operate to release, in any manner, the liability of the original Trustor or Trustor's successor in interest. Beneficiary shall not be required to commence proceedings against such successor or refuse to extend time for payment or otherwise modify amortization of the sums 17 /~ of,zd 2008109 secured by this Deed of Trust by reason of any demand made by the original Trustor and Trustor's successors in interest. Section 6.17. Request for Notice. Trustor and Beneficiary hereby request a copy of any notice of default and a copy of any notice of sale hereunder, whether such notice of default and notice of sale is given pursuant to the terms of this or any other deed of trust, be mailed to them at the address set forth in the first paragraph of this Deed of Trust for the Trustor and the Beneficiary. Section 6.18. Limited Recourse. Collection of amounts owing under this Mortgage from J. Larry Fugate is specifically limited by the Limited Recourse provision set forth in Section 11.04 of the Credit Agreement, and incorporated herein by this reference. IN WITNESS WHEREOF, Trustor has executed this Deed of Trust on the date .first above written. i ,, ; '~~.. J. Lar ate ~~ ~ "Trustor" 18 ~C/ o f eL.Z ;zoc~~~.~o~ ACKNOWLEDGMENT STATE OF KANSAS ) )ss. SEDGWICK COUNTY ) BE IT REMEMBERED, that on this ~ 3~' day of (~u~ch_, 2008, before me, a Notary Public within and for the County and State aforesaid, came J. Larry Fugate, who is personally known to me and known to me to be the same person who executed the foregoing Deed of Trust and Security Agreement and said person duly acknowledged to me his/her execution of the same as and for his/her free and voluntary act and deed, for the uses and purposes therein set forth. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal at Wichita, Kansas, the day, month, and year last above written. ~~~~... Q~.~ ~~.uy(n Notary Public My Appointment Expires: tl ~ f L ~ ~ ~ SHELLS HIGH HOTAAY PUOLIO STATE OF KANSAS r ~Y APpt. Exp. 1~ J,~_ 19 020 ofd ^~ ~oo8i~o9 EXHIBIT A Legal Description Lot 2, Cimarron Plaza Addition to the City of Hastings, Adams County, Nebraska 20 ~l mf ~ ,z zoasl~oo CONSENT OF SPOUSE Dana M. Fugate, the wife of J. Larry Fugate ("Trustor") hereby joins in the foregoing Deed of Trust and Security Agreement to evidence her consent to the grant of the lien thereof, but is not otherwise liable for any covenant, representation, warranty, or other duty, obligation, liability of Trustor arising thereunder. 'l , Dana .Fugate ,,~~ ACKNOWLEDGEMENT STATE OF k,CU~ao ) • ) ss COUNTY OF ~~'~ ) On this ~3~' day of ~~~ , 2008, before me, the undersigned Notary Public, personally appeared Dana M. Fugate, wife of J. Larry Fugate, who is personally known to me to be the same person who executed the foregoing Consent of Spouse and such person duly acknowledged the execution of the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal, the day and year last above writing. By: ~~~ C~ut~l Residing at ~ ~~ Notary Public in and for the State of kCL{~,octio My commission expires ~(~ ~ 01.- O SHELLE HIGH NOTANY PUBLIC STATE OF KA SASo ~y Appl. Exp. 21 oZoZ o ~ ~ aZ