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RECEIVED 7/24/2009 at 3:34 PM
RECEIVING # 948540
BOOK: 728 PAGE: 309
JEANNE WAGNER
ACCOMMODAYICNJ RF:COKO!NG ONLY.
BONNEVILLE SUPERIOR TITLE COMPANY MAKES NO
REPRESENTATION AS TO CONDITION OF TITLE,
NOR DOES IT ASSUME ANY RESPONSIBILITY
FOR VALIDITY, SUFFICIENCY OR EFFECTS
OF DOCUMENT
LINCOLN COUNTY CLERK, KEMMERER, WY
FOR RECORDER'S USE ONLY
DEED OF TRUST
THIS DEED OF TRUST is dated July 22, 2009, among Angela Kirby, whose address is 3983
West 2550 South, Ogden, UT 84401 ("Trustor"); M&T Bank, whose address is Utah Region,
6985 S. Union Park Center, Suite 465, Midvale, UT 84047 (referred to below sometimes as
"Lender" and sometimes as "Beneficiary"); and Bonneville Superior Title Company, Inc., whose
address is 1518 N. Woodland Park Drive, Layton, UT 84041 (referred to below as "Trustee").
CONVEYANCE AND GRANT. For valuable consideration, Trustor irrevocably grants and conveys to Trustee in trust,
with power of sale, for the benefit of Lender as Beneficiary, all of Trustor's right, title, and interest in and to the
following described real property, together with all existing or subsequently erected or affixed buildings, improvements
and fixtures; all easements, rights of way, and appurtenances; all water, water rights and ditch rights (including stock in
utilities with ditch or irrigation rights); and all other rights, royalties, and profits relating to the real property, including
without limitation all minerals, oil, gas, geothermal and similar matters, (the "Real Property") located in Lincoln
County, State of Wyoming:
ANGELA CLARK WEBB EXEMPTION #1 OF THE CLARK FAMILY EXEMPTION, RECORDED
IN THE OFFICE OF THE LINCOLN COUNTY, WYOMING CLERK'S OFFICE AS MAP 277A
RECORD 879032.
The Real Property or its address is commonly known as Angela Clark Webb exemption #1 of
the Clark Family exemption, Etna, WY 83118.
Trustor presently assigns to Lender (also known as Beneficiary in this Deed of Trust) all of Trustor's right, title, and
interest in and to all present and future leases of the Property and all Rents from the Property. In addition, Trustor
grants to Lender a Uniform Commercial Code security interest in the Personal Property and Rents.
THIS DEED OF TRUST, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND
PERSONAL PROPERTY, IS GIVEN TO SECURE (A) PAYMENT OF THE INDEBTEDNESS AND (B) PERFORMANCE OF
ANY AND ALL OBLIGATIONS UNDER THE NOTE, THE RELATED DOCUMENTS, AND THIS DEED OF TRUST. THIS
DEED OF TRUST, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND
PERSONAL PROPERTY, IS ALSO GIVEN TO SECURE ANY AND ALL OF TRUSTOR'S OBLIGATIONS UNDER THAT
CERTAIN CONSTRUCTION LOAN AGREEMENT BETWEEN TRUSTOR AND LENDER OF EVEN DATE HEREWITH. ANY
EVENT OF DEFAULT UNDER THE CONSTRUCTION LOAN AGREEMENT, OR ANY OF THE RELATED DOCUMENTS
REFERRED TO THEREIN, SHALL ALSO BE AN EVENT OF DEFAULT UNDER THIS DEED OF TRUST. THIS DEED OF
TRUST IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS:
PAYMENT AND PERFORMANCE. Except as otherwise provided in this Deed of Trust, Trustor shall pay to Lender all
amounts secured by this Deed of Trust as they become due, and shall strictly and in a timely manner perform all of
Trustor's obligations under the Note, this Deed of Trust, and the Related Documents.
POSSESSION AND MAINTENANCE OF THE PROPERTY. Trustor agrees that Trustor's possession and use of the
Property shall be governed by the following provisions:
Possession and Use. Until the occurrence of an Event of Default, Trustor may (1) remain in possession and
control of the Property; (2) use, operate or manage the Property; and (3) collect the Rents from the Property.
The following provisions relate to the use of the Property or to other limitations on the Property. This instrument is
a Trust Deed executed in conformity with the Utah Trust Deed Act, UCA 57-1-19, at seq.
Duty to Maintain. Trustor shall maintain the Property in good condition and promptly perform all repairs,
replacements, and maintenance necessary to preserve its value.
DEED OF TRUST
(Continued) Page 2
Compliance With Environmental Laws. Trustor represents and warrants to Lender that: (1) During the period of
Trustor's ownership of the Property, there has been no use, generation, manufacture, storage, treatment, disposal,
release or threatened release of any Hazardous Substance by any person on, under, about or from the Property;
(2) Trustor has no knowledge of, or reason to believe that there has been, except as previously disclosed to and
acknowledged by Lender in writing, (a) any breach or violation of any Environmental Laws, (b) any use,
generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance
on, under, about or from the Property by any prior owners or occupants of the Property, or (c) any actual or
threatened litigation or claims of any kind by any person relating to such matters; and (3) Except as previously
disclosed to and acknowledged by Lender in writing, (a) neither Trustor nor any tenant, contractor, agent or other
authorized user of the Property shall use, generate, manufacture, store, treat, dispose of or release any Hazardous
Substance on, under, about or from the Property; and (b) any such activity shall be conducted in compliance with
all applicable federal, state, and local laws, regulations and ordinances, including without limitation all
Environmental Laws. Trustor authorizes Lender and its agents to enter upon the Property to make such
inspections and tests, at Trustor's expense, as Lender may deem appropriate to determine compliance of the
Property with this section of the Deed of Trust. Any inspections or tests made by Lender shall be for Lender's
purposes only and shall not be construed to create any responsibility or liability on the part of Lender to Trustor or
to any other person. The representations and warranties contained herein are based on Trustor's due diligence in
investigating the Property for Hazardous Substances. Trustor hereby (1) releases and waives any future claims
against Lender for indemnity or contribution in the event Trustor becomes liable for cleanup or other costs under
any such laws; and (2) agrees to indemnify, defend, and hold harmless Lender against any and all claims, losses,
liabilities, damages, penalties, and expenses which Lender may directly or indirectly sustain or suffer resulting from
a breach of this section of the Deed of Trust or as a consequence of any use, generation, manufacture, storage,
disposal, release or threatened release occurring prior to Trustor's ownership or interest in the Property, whether or
not the same was or should have been known to Trustor. The provisions of this section of the Deed of Trust,
including the obligation to indemnify and defend, shall survive the payment of the Indebtedness and the satisfaction
and reconveyance of the lien of this Deed of Trust and shall not be affected by Lender's acquisition of any interest
in the Property, whether by foreclosure or otherwise.
Nuisance, Waste. Trustor shall not cause, conduct or permit any nuisance nor commit, permit, or suffer any
stripping of or waste on or to the Property or any portion of the Property. Without limiting the generality of the
foregoing, Trustor will not remove, or grant to any other party the right to remove, any timber, minerals (including
oil and gas), coal, clay, scoria, soil, gravel or rock products without Lender's prior written consent.
Removal of Improvements. Trustor shall not demolish or remove any Improvements from the Real Property without
Lender's prior written consent. As a condition to the removal of any Improvements, Lender may require Trustor to
make arrangements satisfactory to Lender to replace such Improvements with Improvements of at least equal
value.
Lender's Right to Enter. Lender and Lender's agents and representatives may enter upon the Real Property at all
reasonable times to attend to Lender's interests and to inspect the Real Property for purposes of Trustor's
compliance with the terms and conditions of this Deed of Trust.
Compliance with Governmental Requirements. Trustor shall promptly comply with all laws, ordinances, and
regulations, now or hereafter in effect, of all governmental authorities applicable to the use or occupancy of the
Property. Trustor may contest in good faith any such law, ordinance, or regulation and withhold compliance during
any proceeding, including appropriate appeals, so long as Trustor has notified Lender in writing prior to doing so
and so long as, in Lender's sole opinion, Lender's interests in the Property are not jeopardized. Lender may require
Trustor to post adequate security or a surety bond, reasonably satisfactory to Lender, to protect Lender's interest.
Duty to Protect. Trustor agrees neither to abandon or leave unattended the Property. Trustor shall do all other
acts, in addition to those acts set forth above in this section, which from the character and use of the Property are
reasonably necessary to protect and preserve the Property.
DUE ON SALE - CONSENT BY LENDER. Lender may, at Lender's option, declare immediately due and payable all sums
secured by this Deed of Trust upon the sale or transfer, without Lender's prior written consent, of all or any part of the
Real Property, or any interest in the Real Property. A "sale or transfer" means the conveyance of Real Property or any
right, title or interest in the Real Property; whether legal, beneficial or equitable; whether voluntary or involuntary;
whether by outright sale, deed, installment sale contract, land contract, contract for deed, leasehold interest with a
term greater than three (3) years, lease-option contract, or by sale, assignment, or transfer of any beneficial interest in
or to any land trust holding title to the Real Property, or by any other method of conveyance of an interest in the Real
Property.
TAXES AND LIENS. The following provisions relating to the taxes and liens on the Property are part of this Deed of
Trust:
Payment. Trustor shall pay when due (and in all events prior to delinquency) all taxes, special taxes, assessments,
charges (including water and sewer), fines and impositions levied against or on account of the Property, and shall
DEED OF TRUST C00=1
(Continued) Page 3
pay when due all claims for work done on or for services rendered or material furnished to the Property. Trustor
shall maintain the Property free of all liens having priority over or equal to the interest of Lender under this Deed of
Trust, except for the lien of taxes and assessments not due and except as otherwise provided in this Deed of
Trust.
Right to Contest. Trustor may withhold payment of any tax, assessment, or claim in connection with a good faith
dispute over the obligation to pay, so long as Lender's interest in the Property is not jeopardized. If a lien arises or
is filed as a result of nonpayment, Trustor shall within fifteen (15) days after the lien arises or, if a lien is filed,
within fifteen (15) days after Trustor has notice of the filing, secure the discharge of the lien, or if requested by
Lender, deposit with Lender cash or a sufficient corporate surety bond or other security satisfactory to Lender in an
amount sufficient to discharge the lien plus any costs and reasonable attorneys' fees, or other charges that could
accrue as a result of a foreclosure or sale under the lien. In any contest, Trustor shall defend itself and Lender and
shall satisfy any adverse judgment before enforcement against the Property. Trustor shall name Lender as an
additional obligee under any surety bond furnished in the contest proceedings.
Evidence of Payment. Trustor shall upon demand furnish to Lender satisfactory evidence of payment of the taxes
or assessments and shall authorize the appropriate governmental official to deliver to Lender at any time a written
statement of the taxes and assessments against the Property.
Notice of Construction. Trustor shall notify Lender at least fifteen (15) days before any work is commenced, any
services are furnished, or any materials are supplied to the Property, if any mechanic's lien, materialmen's lien, or
other lien could be asserted on account of the work, services, or materials and the cost exceeds $1,000.00.
Trustor will upon request of Lender furnish to Lender advance assurances satisfactory to Lender that Trustor can
and will pay the cost of such improvements.
PROPERTY DAMAGE INSURANCE. The following provisions relating to insuring the Property are a part of this Deed of
Trust.
Maintenance of Insurance. Trustor shall procure and maintain policies of fire insurance with standard extended
coverage endorsements on a fair value basis for the full insurable value covering all Improvements on the Real
Property in an amount sufficient to avoid application of any coinsurance clause, and with a standard mortgagee
clause in favor of Lender, together with such other hazard and liability insurance as Lender may reasonably require.
Policies shall be written in form, amounts, coverages and basis reasonably acceptable to Lender and issued by a
company or companies reasonably acceptable to Lender. Trustor, upon request of Lender, will deliver to Lender
from time to time the policies or certificates of insurance in form satisfactory to Lender, including stipulations that
coverages will not be cancelled or diminished without at least thirty (30) days prior written notice to Lender. Each
insurance policy also shall include an endorsement providing that coverage in favor of Lender will not be impaired
in any way by any act, omission or default of Trustor or any other person. Should the Real Property be located in
an area designated by the Director of the Federal Emergency Management Agency as a special flood hazard area,
Trustor agrees to obtain and maintain Federal Flood Insurance, if available, for the full unpaid principal balance of
the loan and any prior liens on the property securing the loan, up to the maximum policy limits set under the
National Flood Insurance Program, or as otherwise required by Lender, and to maintain such insurance for the term
of the loan.
Application of Proceeds. Trustor shall promptly notify Lender of any loss or damage to the Property if the
estimated cost of repair or replacement exceeds $1,000.00. Lender may make proof of loss if Trustor fails to do
so within fifteen (15) days of the casualty. Whether or not Lender's security is impaired, Lender may, at Lender's
election, receive and retain the proceeds of any insurance and apply the proceeds to the reduction of the
Indebtedness, payment of any lien affecting the Property, or the restoration and repair of the Property. If Lender
elects to apply the proceeds to restoration and repair, Trustor shall repair or replace the damaged or destroyed
Improvements in a manner satisfactory to Lender. Lender shall, upon satisfactory proof of such expenditure, pay
or reimburse Trustor from the proceeds for the reasonable cost of repair or restoration if Trustor is not in default
under this Deed of Trust. Any proceeds which have not been disbursed within 180 days after their receipt and
which Lender has not committed to the repair or restoration of the Property shall be used first to pay any amount
owing to Lender under this Deed of Trust, then to pay accrued interest, and the remainder, if any, shall be applied
to the principal balance of the Indebtedness. If Lender holds any proceeds after payment in full of the
Indebtedness, such proceeds shall be paid to Trustor as Trustor's interests may appear.
LENDER'S EXPENDITURES. If Trustor fails (A) to keep the Property free of all taxes, liens, security interests,
encumbrances, and other claims, (B) to provide any required insurance on the Property, or (C) to make repairs to the
Property then Lender may do so. If any action or proceeding is commenced that would materially affect Lender's
interests in the Property, then Lender on Trustor's behalf may, but is not required to, take any action that Lender
believes to be appropriate to protect Lender's interests. All expenses incurred or paid by Lender for such purposes will
then bear interest at the rate charged under the Note from the date incurred or paid by Lender to the date of repayment
by Trustor. All such expenses will become a part of the Indebtedness and, at Lender's option, will (A) be payable on
demand; (B) be added to the balance of the Note and be apportioned among and be payable with any installment
DEED OF TRUST
(Continued) 0Q0312 Page 4
payments to become due during either (1) the term of any applicable insurance policy; or (2) the remaining term of
the Note; or (C) be treated as a balloon payment which will be due and payable at the Note's maturity. The Deed of
Trust also will secure payment of these amounts. The rights provided for in this paragraph shall be in addition to any
other rights or any remedies to which Lender may be entitled on account of any default. Any such action by Lender
shall not be construed as curing the default so as to bar Lender from any remedy that it otherwise would have had.
WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of the Property are a part of this Deed
of Trust:
Title. Trustor warrants that: (a) Trustor holds good and marketable title of record to the Property in fee simple,
free and clear of all liens and encumbrances other than those set forth in the Real Property description or in any
title insurance policy, title report, or final title opinion issued in favor of, and accepted by, Lender in connection
with this Deed of Trust, and (b) Trustor has the full right, power, and authority to execute and deliver this Deed of
Trust to Lender. .
Defense of Title. Subject to the exception in the paragraph above, Trustor warrants and will forever defend the
title to the Property against the lawful claims of all persons. In the event any action or proceeding is commenced
that questions Trustor's title or the interest of Trustee or Lender under this Deed of Trust, Trustor shall defend the
action at Trustor's expense. Trustor may be the nominal party in such proceeding, but Lender shall be entitled to
participate in the proceeding and to be represented in the proceeding by counsel of Lender's own choice, and
Trustor will deliver, or cause to be delivered, to Lender such instruments as Lender may request from time to time
to permit such participation.
Compliance With Laws. Trustor warrants that the Property and Trustor's use of the Property complies with all
existing applicable laws, ordinances, and regulations of governmental authorities.
Survival of Promises. All promises, agreements, and statements Trustor has made in this Deed of Trust shall
survive the execution and delivery of this Deed of Trust, shall be continuing in nature and shall remain in full force
and effect until such time as Trustor's Indebtedness is paid in full.
CONDEMNATION. The following provisions relating to condemnation proceedings are a part of this Deed of Trust:
Proceedings. If any proceeding in condemnation is filed, Trustor shall promptly notify Lender in writing, and
Trustor shall promptly take such steps as may be necessary to defend the action and obtain the award. Trustor
may be the nominal party in such proceeding, but Lender shall be entitled to participate in the proceeding and to be
represented in the proceeding by counsel of its own choice, and Trustor will deliver or cause to be delivered to
Lender such instruments and documentation as may be requested by Lender from time to time to permit such
participation.
Application of Net Proceeds. If all or any part of the Property is condemned by eminent domain proceedings or by
any proceeding or purchase in lieu of condemnation, Lender may at its election require that all or any portion of the
net proceeds of the award be applied to the Indebtedness or the repair or restoration of the Property. The net
proceeds of the award shall mean the award after payment of all reasonable costs, expenses, and attorneys' fees
incurred by Trustee or Lender in connection with the condemnation.
IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following provisions relating
to governmental taxes, fees and charges are a part of this Deed of Trust:
Current Taxes, Fees and Charges. Upon request by Lender, Trustor shall execute such documents in addition to
this Deed of Trust and take whatever other action is requested by Lender to perfect and continue Lender's lien on
the Real Property. Trustor shall reimburse Lender for all taxes, as described below, together with all expenses
incurred in recording, perfecting or continuing this Deed of Trust, including without limitation all taxes, fees,
documentary stamps, and other charges for recording or registering this Deed of Trust.
Taxes. The following shall constitute taxes to which this section applies: (1) a specific tax upon this type of
Deed of Trust or upon all or any part of the Indebtedness secured by this Deed of Trust; (2) a specific tax on
Trustor which Trustor is authorized or required to deduct from payments on the Indebtedness secured by this type
of Deed of Trust; (3) a tax on this type of Deed of Trust chargeable against the Lender or the holder of the Note;
and (4) a specific tax on all or any portion of the Indebtedness or on payments of principal and interest made by
Trustor.
Subsequent Taxes. If any tax to which this section applies is enacted subsequent to the date of this Deed of
Trust, this event shall have the same effect as an Event of Default, and Lender may exercise any or all of its
available remedies for an Event of Default as provided below unless Trustor either (1) pays the tax before it
becomes delinquent, or (2) contests the tax as provided above in the Taxes and Liens section and deposits with
Lender cash or a sufficient corporate surety bond or other security satisfactory to Lender.
SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to this Deed of Trust as a
security agreement are a part of this Deed of Trust:
DEED OF TRUST
(Continued) C°.~ ,q 3:13 Page 5
Security Agreement. This instrument shall constitute a Security Agreement to the extent any of the Property
constitutes fixtures, and Lender shall have all of the rights of a secured party under the Uniform Commercial Code
as amended from time to time.
Security Interest. Upon request by Lender, Trustor shall take whatever action is requested by Lender to perfect
and continue Lender's security interest in the Personal Property. In addition to recording this Deed of Trust in the
real property records, Lender may, at any time and without further authorization from Trustor, file executed
counterparts, copies or reproductions of this Deed of Trust as a financing statement. Trustor shall reimburse
Lender for all expenses incurred in perfecting or continuing this security interest. Upon default, Trustor shall not
remove, sever or detach the Personal Property from the Property. Upon default, Trustor shall assemble any
Personal Property not affixed to the Property in a manner and at a place reasonably convenient to Trustor and
Lender and make it available to Lender within three (3) days after receipt of written demand from Lender to the
extent permitted by applicable law.
Addresses. The mailing addresses of Trustor (debtor) and Lender (secured party) from which information
concerning the security interest granted by this Deed of Trust may be obtained (each as required by the Uniform
Commercial Code) areas stated on the first page of this Deed of Trust.
FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions relating to further assurances and
attorney-in-fact are a part of this Deed of Trust:
Further Assurances. At any time, and from time to time, upon request of Lender, Trustor will make, execute and
deliver, or will cause to be made, executed or delivered, to Lender or to Lender's designee, and when requested by
Lender, cause to be filed, recorded, refiled, or rerecorded, as the case may be, at such times and in such offices
and places as Lender may deem appropriate, any and all such mortgages, deeds of trust, security deeds, security
agreements, financing statements, continuation statements, instruments of further assurance, certificates, and
other documents as may, in the sole opinion of Lender, be necessary or desirable in order to effectuate, complete,
perfect, continue, or preserve (1) Trustor's obligations under the Note, this Deed of Trust, and the Related
Documents, and (2) the liens and security interests created by this Deed of Trust as first and prior liens on the
Property, whether now owned or hereafter acquired by Trustor. Unless prohibited by law or Lender agrees to the
contrary in writing, Trustor shall reimburse Lender for all costs and expenses incurred in connection with the
matters referred to in this paragraph.
Attorney-in-Fact. If Trustor fails to do any of the things referred to in the preceding paragraph, Lender may do so
for and in the name of Trustor and at Trustor's expense. For such purposes, Trustor hereby irrevocably appoints
Lender as Trustor's attorney-in-fact for the purpose of making, executing, delivering, filing, recording, and doing all
other things as may be necessary or desirable, in Lender's sole opinion, to accomplish the matters referred to in
the preceding paragraph.
FULL PERFORMANCE. If Trustor pays all the Indebtedness when due, and otherwise performs all the obligations
imposed upon Trustor under this Deed of Trust, Lender shall execute and deliver to Trustee a request for full
reconveyance and shall execute and deliver to Trustor suitable statements of termination of any financing statement on
file evidencing Lender's security interest in the Rents and the Personal Property. Any reconveyance fee required by law
shall be paid by Trustor, if permitted by applicable law.
EVENTS OF DEFAULT. At Lender's option, Trustor will be in default under this Deed of Trust if any of the following
happen:
Payment Default. Trustor fails to make any payment when due under the Indebtedness.
Break Other Promises. Trustor breaks any promise made to Lender or fails to perform promptly at the time and
strictly in the manner provided in this Deed of Trust or in any agreement related to this Deed of Trust.
Compliance Default. Failure to comply with any other term, obligation, covenant or condition contained in this
Deed of Trust, the Note or in any of the Related Documents.
Default on Other Payments. Failure of Trustor within the time required by this Deed of Trust to make any payment
for taxes or insurance, or any other payment necessary to prevent filing of or to effect discharge of any lien.
Default in Favor of Third Parties. Should Grantor default under any loan, extension of credit, security agreement,
purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially
affect any of Grantor's property or Grantor's ability to repay the Indebtedness or Grantor's ability to perform
Grantor's obligations under this Deed of Trust or any of the Related Documents.
False Statements. Any representation or statement made or furnished to Lender by Trustor or on Trustor's behalf
under this Deed of Trust or the Related Documents is false or misleading in any material respect, either now or at
the time made or furnished.
Defective Collateralization. This Deed of Trust or any of the Related Documents ceases to be in full force and
effect (including failure of any collateral document to create a valid and perfected security interest or lien) at any
DEED OF TRUST
(Continued) 0Ov314 Page 6
time and for any reason.
Death or Insolvency. The death of Trustor, the insolvency of Trustor, the appointment of a receiver for any part of
Trustor's property, any assignment for the benefit of creditors, any type of creditor workout, or the
commencement of any proceeding under any bankruptcy or insolvency laws by or against Trustor.
Taking of the Property. Any creditor or governmental agency tries to take any of the Property or any other of
Trustor's property in which Lender has a lien. This includes taking of, garnishing of or levying on Trustor's
accounts with Lender. However, if Trustor disputes in good faith whether the claim on which the taking of the
Property is based is valid or reasonable, and if Trustor gives Lender written notice of the claim and furnishes
Lender with monies or a surety bond satisfactory to Lender to satisfy the claim, then this default provision will not
apply.
Breach of Other Agreement. Any breach by Trustor under the terms of any other agreement between Trustor and
Lender that is not remedied within any grace period provided therein, including without limitation any agreement
concerning any indebtedness or other obligation of Trustor to Lender, whether existing now or later.
Events Affecting Guarantor. Any of the preceding events occurs with respect to any guarantor, endorser, surety,
or accommodation party of any of the Indebtedness or any guarantor, endorser, surety, or accommodation party
dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any Guaranty of the
Indebtedness.
Insecurity. Lender in good faith believes itself insecure.
Right to Cure. If any default, other than a default in payment is curable and if Trustor has not been given a notice
of a breach of the same provision of this Deed of Trust within the preceding twelve (12) months, it may be cured if
Trustor, after receiving written notice from Lender demanding cure of such default: (1) cures the default within
fifteen (15) days; or (2) if the cure requires more than fifteen (15) days, immediately initiates steps which Lender
deems in Lender's sole discretion to be sufficient to cure the default and thereafter continues and completes all
reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical.
RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under this Deed of Trust, at any time thereafter,
Trustee or Lender may exercise any one or more of the following rights and remedies:
Election of Remedies. All of Lender's rights and remedies will be cumulative and may be exercised alone or
together. An election by Lender to choose any one remedy will not bar Lender from using any other remedy. If
Lender decides to spend money or to perform any of Trustor's obligations under this Deed of Trust, after Trustor's
failure to do so, that decision by Lender will not affect Lender's right to declare Trustor in default and to exercise
Lender's remedies.
Accelerate Indebtedness. Lender shall have the right at its option without notice to Trustor to declare the entire
Indebtedness immediately due and payable, including any prepayment penalty which Trustor would be required to
pay.
Foreclosure. With respect to all or any part of the Real Property, the Trustee shall have the right to foreclose by
notice and sale, and Lender shall have the right to foreclose by judicial foreclosure, in either case in accordance
with and to the full extent provided by applicable law.
UCC Remedies. With respect to all or any part of the Personal Property, Lender shall have all the rights and
remedies of a secured party under the Uniform Commercial Code.
Collect Rents. Lender shall have the right, without notice to Trustor to take possession of and manage the
Property and collect the Rents, including amounts past due and unpaid, and apply the net proceeds, over and
above Lender's costs, against the Indebtedness. In furtherance of this right, Lender may require any tenant or
other user of the Property to make payments of rent or use fees directly to Lender. If the Rents are collected by
Lender, then Trustor irrevocably designates Lender as Trustor's attorney-in-fact to endorse instruments received in
payment thereof in the name of Trustor and to negotiate the same and collect the proceeds. Payments by tenants
or other users to Lender in response to Lender's demand shall satisfy the obligations for which the payments are
made, whether or not any proper grounds for the demand existed. Lender may exercise its rights under this
subparagraph either in person, by agent, or through a receiver.
Appoint Receiver.. Lender shall have the right to have a receiver appointed to take possession of all or any part of
the Property, with the power to protect and preserve the Property, to operate the Property preceding foreclosure or
sale, and to collect the Rents from the Property and apply the proceeds, over and above the cost of the
receivership, against the Indebtedness.Trustor hereby waives any requirement that the receiver be impartial and
disinterested as to all of the parties and agrees that employment by Lender shall not disqualify a person from
serving as a receiver.
Tenancy at Sufferance. If Trustor remains in possession of the Property after the Property is sold as provided
above or Lender otherwise becomes entitled to possession of the Property upon default of Trustor, Trustor shall
DEED OF TRUST
(Continued)~'~'~ Page 7
become a tenant at sufferance of Lender or the purchaser of the Property and shall, at Lender's option, either (1)
pay a reasonable rental for the use of the Property, or (2) vacate the Property immediately upon the demand of
Lender.
Other Remedies. Trustee or Lender shall have any other right or remedy provided in this Deed of Trust or the Note
or available at law or in equity.
Notice of Sale. Lender shall give Trustor reasonable notice of the time and place of any public sale of the Personal
Property or of the time after which any private sale or other intended disposition of the Personal Property is to be
made. Reasonable notice shall mean notice given at least ten (10) days before the time of the sale or disposition.
Any sale of the Personal Property may be made in conjunction with any sale of the Real Property.
Sale of the Property. To the extent permitted by applicable law, Trustor hereby waives any and all rights to have
the Property marshalled. In exercising its rights and remedies, the Trustee or Lender shall be free to sell all or any
part of the Property together or separately, in one sale or by separate sales. Lender shall be entitled to bid at any
public sale on all or any portion of the Property.
Attorneys' Fees; Expenses. If Lender institutes any suit or action to enforce any of the terms of this Deed of
Trust, Lender shall be entitled to recover such sum as the court may adjudge reasonable as attorneys' fees equal
to 100.000% of the principal balance due on the Indebtedness at trial and upon any appeal. Whether or not any
court action is involved, and to the extent not prohibited by law, all reasonable expenses Lender incurs that in
Lender's opinion are necessary at any time for the protection of its interest or the enforcement of its rights shall
become a part of the Indebtedness payable on demand and shall bear interest at the Note rate from the date of the
expenditure until repaid. Expenses covered by this paragraph include, without limitation, however subject to any
limits under applicable law, Lender's reasonable attorneys' fees equal to 100.000% of the principal balance due on
the Indebtedness and Lender's legal expenses, whether or not there is a lawsuit, including reasonable attorneys'
fees equal to 100.000% of the principal balance due on the Indebtedness and expenses for bankruptcy
proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated
post-judgment collection services, the cost of searching records, obtaining title reports (including foreclosure
reports), surveyors' reports, and appraisal fees, title insurance, and fees for the Trustee, to the extent permitted by
applicable law. Trustor also will pay any court costs, in addition to all other sums provided by law.
Rights of Trustee. Trustee shall have all of the rights and duties of Lender as set forth in this section.
POWERS AND OBLIGATIONS OF TRUSTEE. The following provisions relating to the powers and obligations of Trustee
are part of this Deed of Trust:
Powers of Trustee. In addition to all powers of Trustee arising as a matter of law, Trustee shall have the power to
take the following actions with respect to the Property upon the written request of Lender and Trustor: (a) join in
preparing and filing a map or plat of the Real Property, including the dedication of streets or other rights to the
public; (b) join in granting any easement or creating any restriction on the Real Property; and (c) join in any
subordination or other agreement affecting this Deed of Trust or the interest of Lender under this Deed of Trust.
Obligations to Notify. Trustee shall not be obligated to notify any other party of a pending sale under any other
trust deed or lien, or of any action or proceeding in which Trustor, Lender, or Trustee shall be a party, unless the
action or proceeding is brought by Trustee.
Trustee. Trustee shall meet all qualifications required for Trustee under applicable law. In addition to the rights
and remedies set forth above, with respect to all or any part of the Property, the Trustee shall have the right to
foreclose by notice and sale, and Lender will have the right to foreclose by judicial foreclosure, in either case in
accordance with and to the full extent provided by applicable law.
Successor Trustee. Lender, at Lender's option, may from time to time appoint a successor Trustee to any Trustee
appointed under this Deed of Trust by an instrument executed and acknowledged by Lender and recorded in the
office of the recorder of Lincoln County, State of Utah. The instrument shall contain, in addition to all other
matters required by state law, the names of the original Lender, Trustee, and Trustor, the book and page where
this Deed of Trust is recorded, and the name and address of the successor trustee, and the instrument shall be
executed and acknowledged by Lender or its successors in interest. The successor trustee, without conveyance of
the Property, shall succeed to all the title, power, and duties conferred upon the Trustee in this Deed of Trust and
by applicable law. This procedure for substitution of Trustee shall govern to the exclusion of all other provisions
for substitution.
NOTICES. Unless otherwise provided by applicable law, any notice required to be given under this Deed of Trust or
required by law, including without limitation any notice of default and any notice of sale shall be given in writing, and
shall be effective when actually delivered in accordance with the law or with this Deed of Trust, when actually received
by telefacsimile (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, if
mailed, when deposited in the United States mail, as first class, certified or registered mail postage prepaid, directed to
the addresses shown near the beginning of this Deed of Trust. All copies of notices of foreclosure from the holder of
DEED OF TRUST
(Continued) C-00316 Page 8
any lien which has priority over this Deed of Trust shall be sent to Lender's address, as shown near the beginning of
this Deed of Trust, Notwithstanding any other provision of this Deed of Trust, all notices given under Utah Code Ann.
Section 57-1-26 shall be given as required therein. Any person may change his or her address for notices under this
Deed of Trust by giving formal written notice to the other person or persons, specifying that the purpose of the notice is
to change the person's address. For notice purposes, Trustor agrees to keep Lender informed at all times of Trustor's
current address. Unless otherwise provided by applicable law, if there is more than one Trustor, any notice given by
Lender to any Trustor is deemed to be notice given to all Trustors. It will be Trustor's responsibility to tell the others of
the notice from Lender.
CONSTRUCTION INTEREST RESERVE ACCOUNT. At the time of closing, M & T Bank will require a deposit to be made
to a Construction Interest Reserve. If funds in this account are insufficient to cover all interest due during the
construction period, the borrower will receive a billing statement for any outstanding interest. If there are any funds
remaining in the Construction Interest Reserve upon completion of construction, the balance will be credited as a
reduction to your outstanding principal balance or refunded to borrower, at Lender's option and dependent upon the
guidelines for the specific loan program borrower has obtained. Lender shall have the right to cease to apply any funds
from the interest reserve account for this loan in the event that certificates of job progress furnished to Lender by an
inspector satisfactory to Lender or Lender's own inspection of property show that the percentage of progress of
construction is five percent (5%) or less for each of two consecutive months, or ten percent (10%) or less in the
aggregate over any 60-day period. During any such period when Lender is withholding application of interest reserves,
Borrower shall pay all interest monthly as it accrues from Borrower's own funds. Lender may determine in its sole
discretion when to reinstate application of interest payments from the Interest Reserve account.
ADDITIONAL COLLATERAL. This $25,000 lien to be used as additional collateral only and not as additional loan funds
towards Lot 10 Smith Heritage. This lien to be released upon payoff of construction loan on Lot 10 Smith Heritage.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Deed of Trust:
Amendments. What is written in this Deed of Trust and in the Related Documents is Trustor's entire agreement
with Lender concerning the matters covered by this Deed of Trust. To be effective, any change or amendment to
this Deed of Trust must be in writing and must be signed by whoever will be bound or obligated by the change or
amendment.
Arbitration. Trustor and Lender agree that all disputes, claims and controversies between us whether individual,
joint, or class in nature, arising from this Deed of Trust or otherwise, including without limitation contract and tort
disputes, shall be arbitrated pursuant to the Rules of the American Arbitration Association in effect at the time the
claim is filed, upon request of either party. No act to take or dispose of any Property shall constitute a waiver of
this arbitration agreement or be prohibited by this arbitration agreement. This includes, without limitation,
obtaining injunctive relief or a temporary restraining order; invoking a power of sale under any deed of trust or
mortgage; obtaining a writ of attachment or imposition of a receiver; or exercising any rights relating to personal
property, including taking or disposing of such property with or without judicial process pursuant to Article 9 of the
Uniform Commercial Code. Any disputes, claims, or controversies concerning the lawfulness or reasonableness of
any act, or exercise of any right, concerning any, Property, including any claim to rescind, reform, or otherwise
modify any agreement relating to the Property, shall also be arbitrated, provided however that no arbitrator shall
have the right or the power to enjoin or restrain any act of any party. Judgment upon any award rendered by any
arbitrator may be entered in any court having jurisdiction. Nothing in this Deed of Trust shall preclude any party
from seeking equitable relief from a court of competent jurisdiction. The statute of limitations, estoppel, waiver,
laches, and similar doctrines which would otherwise be applicable in an action brought by a party shall be
applicable in any arbitration proceeding, and the commencement of an arbitration proceeding shall be deemed the
commencement of an action for these purposes. The Federal Arbitration Act shall apply to the construction,
interpretation, and enforcement of this arbitration provision.
Caption Headings. Caption headings in this Deed of Trust are for convenience purposes only and are not to be
used to interpret or define the provisions of this Deed of Trust.
Merger. There shall be no merger of the interest or estate created by this Deed of Trust with any other interest or
estate in the Property at any time held by or for the benefit of Lender in any capacity, without the written consent
of Lender.
Governing Law. This Deed of Trust will be governed by federal law applicable to Lender and, to the extent not
preempted by federal law, the laws of the State of Utah without regard to its conflicts of law provisions. This
Deed of Trust has been accepted by Lender in the State of Utah.
Choice of Venue. If there is a lawsuit, Trustor agrees upon Lender's request to submit to the jurisdiction of the
courts of Salt Lake County, State of Utah.
No Waiver by Lender. Trustor understands Lender will not give up any of Lender's rights under this Deed of Trust
unless Lender does so in writing. The fact that Lender delays or omits to exercise any right will not mean that
Lender has given up that right. If Lender does agree in writing to give up one of Lender's rights, that does not
DEED OF TRUST" 17
(Continued) Page 9
mean Trustor will not have to comply with the other provisions of this Deed of Trust. Trustor also understands
that if Lender does consent to a request, that does not mean that Trustor will not have to get Lender's consent
again if the situation happens again. Trustor further understands that just because Lender consents to one or more
of Trustor's requests, that does not mean Lender will be required to consent to any of Trustor's future requests.
Trustor waives presentment, demand for payment, protest, and notice of dishonor. Trustor waives all rights of
exemption from execution or similar law in the Property, and Trustor agrees that the rights of Lender in the
Property under this Deed of Trust are prior to Trustor's rights while this Deed of Trust remains in effect.
Severability. If a court finds that any provision of this Deed of Trust is not valid or should not be enforced, that
fact by itself will not mean that the rest of this Deed of Trust will not be valid or enforced. Therefore, a court will
enforce the rest of the provisions of this Deed of Trust even if a provision of this Deed of Trust may be found to be
invalid or unenforceable.
Successors and Assigns. Subject to any limitations stated in this Deed of Trust on transfer of Trustor's interest,
this Deed of Trust shall be binding upon and inure to the benefit of the parties, their successors and assigns. If
ownership of the Property becomes vested in a person other than Trustor, Lender, without notice to Trustor, may
deal with Trustor's successors with reference to this Deed of Trust and the Indebtedness by way of forbearance or
extension without releasing Trustor from the obligations of this Deed of Trust or liability under the Indebtedness.
Time is of the Essence. Time is of the essence in the performance of this Deed of Trust.
Waive Jury. All parties to this Deed of Trust hereby waive the right to any jury trial in any action, proceeding, or
counterclaim brought by any party against any other party.
Waiver of Homestead Exemption. Trustor hereby releases and waives all rights and benefits of the homestead
exemption laws of the State of Utah as to all Indebtedness secured by this Deed of Trust.
DEFINITIONS. The following words shall have the following meanings when used in this Deed of Trust:
Beneficiary. The word "Beneficiary" means M&T Bank, and its successors and assigns
Borrower. The word, "Borrower" means Angela Kirby and includes all co-signers and co-makers signing the Note
and all their successors and assigns.
Deed of Trust. The words "Deed of Trust" mean this Deed of Trust among Trustor, Lender, and Trustee, and
includes without limitation all assignment and security interest provisions relating to the Personal Property and
Rents.
Environmental Laws. The words "Environmental Laws" mean any and all state, federal and local statutes,
regulations and ordinances relating to the protection of human health or the environment, including without
limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42
U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub. L.
No. 99-499 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, at seq., or other applicable state or federal laws, rules,
or regulations adopted pursuant thereto.
Event of Default. The words "Event of Default" mean any of the events of default set forth in this Deed of Trust in
the events of default section of this Deed of Trust.
Guaranty. The word "Guaranty" means the guaranty from guarantor, endorser, surety, or accommodation party to
Lender, including without limitation a guaranty of all or part of the Note.
Hazardous Substances. The words "Hazardous Substances" mean materials that, because of their quantity,
concentration or physical, chemical or infectious characteristics, may cause or pose a present or potential hazard
to human health or the environment when improperly used, treated, stored, disposed of, generated, manufactured,
transported or otherwise handled. The words "Hazardous Substances" are used in their very broadest sense and
include without limitation any and all hazardous or toxic substances, materials or waste as defined by or listed
under the Environmental Laws. The term "Hazardous Substances" also includes, without limitation, petroleum and
petroleum by-products or any fraction thereof and asbestos.
Improvements. The word "Improvements" means all existing and future improvements, buildings, structures,
mobile homes affixed on the Real Property, facilities, additions, replacements and other construction on the Real
Property.
Indebtedness. The word "Indebtedness" means all principal, interest, and other amounts, costs and expenses
payable under the Note or Related Documents, together with all renewals of, extensiohs of, modifications of,
consolidations of and substitutions for the Note or Related Documents and any amounts expended or advanced by
Lender to discharge Trustor's obligations or expenses incurred by Trustee or Lender to enforce Trustor's
obligations under this Deed of Trust, together with interest on such amounts as provided in this Deed of Trust.
Lender. The word "Lender" means M&T Bank, its successors and assigns. The words "successors or assigns"
DEED OF TRUST
='`~'e3a-~!R
(Continued)
Page 10
mean any person or company that acquires any interest in the Note.
Note. The word "Note" means the promissory note dated July 22, 2009, in the original principal amount
of $25,000.00 from Trustor to Lender, together with all renewals of, extensions of, modifications of,
refinancings of, consolidations of, and substitutions for the promissory note or agreement. The maturity date of
this Deed of Trust is February 1, 2010. NOTICE TO TRUSTOR: THE NOTE CONTAINS A VARIABLE INTEREST
RATE.
Personal Property. The words "Personal Property" mean all equipment, fixtures, and other articles of personal
property now or hereafter owned by Trustor, and now or hereafter attached or affixed to the Real Property;
together with all accessions, parts, and additions to, all replacements of, and all substitutions for, any of such
property; and together with all proceeds (including without limitation all insurance proceeds and refunds of
premiums) from any sale or other disposition of the Property.
Property. The word "Property" means collectively the Real Property and the Personal Property.
Real Property. The words "Real Property" mean the real property, interests and rights, as further described in this
Deed of Trust.
Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan
agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security
deeds, collateral mortgages, and all other instruments, agreements and documents, whether now or hereafter
existing, executed in connection with the Indebtedness.
Rents. The word "Rents" means all present and future rents, revenues, income, issues, royalties, profits, and
other benefits derived from the Property.
Trustee. The word "Trustee" means Bonneville Superior Title Company, Inc., whose address is 1518 N. Woodland
Park Drive, Layton, UT 84041 and any substitute or successor trustees.
Trustor. The word "Trustor" means Angela Kirby.
TRUSTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS DEED OF TRUST, AND TRUSTOR
AGREES TO ITS TERMS.
TRUSTOR:
A hg4la K' y
X - - - /
INDIVIDUAL ACKNOWLEDGMENT
STATE OF 1Y 44, PAUL SHIN
1 ) SS NOTARYPUCUC-STATE OFUTAN
COUNTY OF 6 6916SUNION PARK CENTER SUITE 416
MIDVALE, UT 84047 "
COMM. EXP. 07.07-2010
On this day before me, the undersigned Notary Public, personally appeared Angela Kirby, to me known to be the
individual described in and who executed the Deed of Trust, and acknowledged that he or she signed the Deed of Trust
as his or her free and voluntary act and deed, for the uses and purposes therein mentioned. q
Given under my hand and official seal this 2 day of dLA 20 OF
1
By !Def t.it `r~ Residing at Z-A
Notary Public in and for the State of --UT:- My commission expires -7/-7 i0ja
DEED OF TRUST OGCj 319
(Continued) Page 11
REQUEST FOR FULL RECONVEYANCE
(To be used only when obligations have been paid in full)
To: . Trustee
The undersigned is the legal owner and holder of all Indebtedness secured by this Deed of Trust. All sums secured by
this Deed of Trust have been fully paid and satisfied. You are hereby directed, upon payment to you of any sums owing
to you under the terms of this Deed of Trust or pursuant to any applicable statute, to cancel the Note secured by this
Deed of Trust (which is delivered to you together with this Deed of Trust), and to reconvey, without warranty, to the
parties designated by the terms of this Deed of Trust, the estate now held by you under this Deed of Trust. Please mail
the reconveyance and Related Documents to:
Date:
Beneficiary:
By:
Its:
LASER PRO Lending, Ver. 5.44.00.002 Copr. Harland Financial Solutions, Inc. 1997, 2009.. All Rights Reserved. -
UT N:\WINAPPS\CFI\CFI\LPL\G01.FC TR-93 PR-4