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HomeMy WebLinkAbout954571After Recording Mail To: Gary Alder 4046 South 700 West Salt Lake City, Utah 84123 Parcel No: 24190640000100 Legal Description: See Exhibit A attached. Principal Amount: $60,000.00 DEED OF TRUST RECEIVED 7/26/2010 at 3:03 PM RECEIVING 954571 BOOK: 751 PAGE: 162 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY THIS DEED OF TRUST (this "Deed of Trust is made as of the 2,2 day of vt Y 2010, among GARY DEAN ALDER and CAROLYN TANNER ALDER, Trustees of THE ALDER FAMILY TRUST, dated January 23, 1987, as amended and restated October 19, 2007 (collectively referred to herein as "Trustor Rocky Mountain Title Insurance Agency of Lincoln County, as Trustee "Trustee and Trustees of THE VIRGINIA B. ALDER LIVING TRUST, dated April 10, 2002 (collectively referred to herein as "Beneficiary WITNESSETH: For the consideration of SIXTY THOUSAND AND 00 /100 DOLLARS ($60,000.00) hereafter advanced to or for the benefit of Trustor, Trustor hereby irrevocably conveys, transfers, pledges and assigns in trust to Trustee, with power of sale, and grants to Beneficiary a security interest in, all of Trustor's present and future right, title and interest in and to all of the following property (severally and collectively, the "Property (a) All of that certain real property located in Lincoln County, Wyoming, and more particularly described on Exhibit "A" hereto (the "Real Property"); (b) All present and future tenements, hereditaments, easements, permits, water rights, and all reversions, remainders, rents, issues, and profits thereof; (c) All buildings and improvements now or hereafter erected on the Real Property or any portion thereof, and all equipment, and fixtures now or hereafter attached to or located on or used in connection with the Real Property; (d) All present and future licenses, permits, approvals and agreements from or with any governmental or quasi governmental agency or entity or any other person relevant to the improvement, use, lease, sale or other disposition of the Real Property or any portion thereof, or any buildings or improvements now or hereafter erected, placed or located on the Real Property or any portion thereof; 2 (e) All rights in and to all present and future agreements or commitments for the purpose of financing, refinancing, selling or otherwise disposing of any interest in the Real Property or any portion thereof, and any buildings and other improvements now or hereafter located on the Real Property or any portion thereof; (f) All rights under any policy or policies of insurance (including premium refunds and credits and insurance proceeds) insuring against damage or loss with respect to any portion of the Property, including all fire, casualty and flood insurance, whether or not such insurance is required by this Deed of Trust or Beneficiary; (g) All goods, materials, supplies, fixtures, machinery, furniture and furnishings, appliances, attachments, equipment, inventory, general intangibles, accounts, chattel paper, instruments, notes, drafts, letters of credit, documents and other personal property (to the extent that any of the foregoing constitute personal property under applicable law), including without limitation all "Accounts "Cash Proceeds "Chattel Paper "Collateral", "Deposit Accounts "Electronic Chattel Paper "Equipment "Fixtures General Intangibles "Goods "Instruments "Inventory", "Investment Property "Letter -of- credit Rights "Noncash Proceeds and "Tangible Chattel Paper as defined in the Utah Uniform Commercial Code, that directly or indirectly relate to or are used or intended for use on or in connection with the use, design, financing, construction and/or sale of the Real Property or any portion thereof, or any buildings or improvements located thereon or any easements, appurtenances, hereditaments or privileges appurtenant or incident thereto; and (h) All (i) replacements and substitutions for, (ii) additions to, (iii) proceeds and products of (including all insurance proceeds and condemnation awards (or proceeds of any purchase in lieu thereof) which are or may become payable with respect thereto), and (iv) books, records and files relating to, all or any portion of the items described in the preceding paragraphs. The foregoing descriptions of items constituting the Property shall be construed as cumulative and not limiting, and the term "including when used in those descriptions, shall mean without limitation by reason of enumeration. Unless the context clearly indicates otherwise, the terms "equipment," "inventory," "accounts," "instruments," "chattel paper," "general intangibles," "proceeds" and "products" shall have the meanings provided for those terms in the Utah Uniform Commercial Code in effect on the date of this Deed of Trust. 163 This Deed of Trust is given in consideration of and as security for: (i) the payment of a loan by Beneficiary to Trustor evidenced by that Promissory Note (the "Note of approximately even date herewith executed by Trustor and payable to the order of Beneficiary for the maximum principal amount of SIXTY THOUSAND AND 00 /100 DOLLARS ($60,000.00) as the consideration for this Deed of Trust, together with interest thereon and charges with respect thereto, and any and all advances now or hereafter made by Beneficiary under the terms and conditions of the Note or this Deed of Trust, and any and all renewals, replacements, amendments, modifications or extensions of the Note or this Deed of Trust; (ii) all of the terms, conditions, agreements, stipulations, covenants, and provisions of this Deed of Trust and any other agreement, document or instrument (and any and all renewals, replacements, amendments, modifications or extensions thereof), and all other loan documents given by Trustor to Beneficiary to evidence or to secure the indebtedness secured hereby; (iii) all late charges, default interest, prepayment charges or premiums, loan fees, commitment fees and extension fees described in the Note and all costs of collecting the indebtedness or other amounts evidenced by the Note or described in this Deed of Trust, including any and all costs and expenditures of a receiver in possession and reasonable attorneys' fees; (iv) payment of all sums advanced by Beneficiary to protect the Property, with interest thereon equal to the Default Rate as provided by the Note; (v) Trustor's compliance with and performance of each and every provision of any .declaration of covenants, conditions and restrictions, any maintenance, easement and party wall agreement, or any other agreement, document, or instrument by which the Property is bound or may be affected; and (vi) all modifications, extensions and renewals of any of the obligations secured hereby, however evidenced, including, without limitation: (a) modifications of the required principal payment dates or interest payment dates or both, as the case may be, deferring or accelerating payment dates wholly or partly; or (b) modifications extensions or renewals at a different rate of interest whether or not, in the case of a note, the modification, extension or renewal is evidenced by a new or additional promissory note. This Deed of Trust shall also secure all amounts, including costs of collection, payable under any guarantee(s) now or hereafter relating to the obligations secured hereby. All of the foregoing payments and performances secured by this Deed of Trust are sometimes hereinafter referred to as the "Obligations." TRUSTOR, TO PROTECT THE PROPERTY AND SECURITY GIVEN BY THIS DEED OF TRUST, HEREBY WARRANTS, COVENANTS AND AGREES AS FOLLOWS: 1. Warranty of Title. Trustor warrants that it is the sole owner of good and marketable unencumbered title to the Property, and Trustor will forever defend the same against all claims and persons whomsoever, unto Beneficiary, its successors and assigns, subject only to the matters approved by Beneficiary as acceptable exceptions to title pursuant to the provisions of the closing instruction letter delivered by Beneficiary herewith to the title insurance company insuring the lien of this Deed of Trust. All of Trustor's present and future right, title and interest in the Property shall be subject to the lien and other terms and provisions of this Deed of Trust regardless of the time that any such right, title and interest is created, obtained by or conveyed, transferred or assigned to Trustor. 2. Obligation to Maintain Property; Repairs; Inspection by Beneficiary. (a) Trustor shall care for and keep and maintain the Property in good order, condition and repair, and will at all times make such repairs, maintenance, renewals, and replacements as shall be necessary to maintain the Property and abutting grounds, sidewalks, roads, parking and landscape areas in good condition and repair, all to the same extent as a prudent owner would make. Trustor shall not substantially alter the Property, except for normal construction activities, and as may be required by applicable laws (including the Americans With Disabilities Act (42 U.S.C. §12101 -12213 and 47 U.S.C. 225 and 611)), ordinances, orders, decrees, rules, regulations or requirements of any governmental authority, including applicable subdivision laws, regulations and ordinances, and any requirements, terms or conditions contained in any restrictions, restrictive covenants, easements, licenses or leases, building codes, flood protection laws and ordinances, zoning ordinances or stipulations, subdivision plats, master plans, development plans, or other instruments or documents now or in the future affecting any portion of the Real Property or any improvements thereon (collectively, "Legal Requirements All replacements of items of the Property will be of a value equal to or greater than the value of the item or items replaced. Trustor shall not commit, or permit to occur, any waste upon the Property. Trustor shall keep the landscaping of the Property in good condition, watered and free from weeds, and all plants, trees, and shrubs pruned and in good condition. Subject to normal construction activities, Trustor shall keep the Property free of rubbish and unsightly, unsafe and unhealthful conditions. (b) Trustor shall comply in all material respects with all Legal Requirements now or in the future affecting the Property or requiring any alteration or improvements to be made thereof. To Trustor's knowledge, the building plans and specifications for the improvements on the Property, if any, comply with all building laws, ordinances, codes, rules and regulations and other laws and regulations applicable thereto and such plans and specifications and improvements 3 1 x.65 have been, or will be, approved by all appropriate authorities. No notice of any violations of ordinances, codes, rules, regulations, orders, restrictive covenants or statutes applicable to the Property has been received, nor have any governmental authorities or insurance underwriters required any changes to any plans and specifications as submitted to Beneficiary. All appropriate governmental authorities will have issued, as and when required, all required permits for the construction of the improvements on the basis of the plans and specifications so approved. To the best of Trustor's knowledge, after due inquiry and investigation, the Property, any improvements thereon and their use fully comply and shall continue to comply with environmental, air quality, zoning, planning, building and other governmental laws, ordinances, rules, regulations and requirements and Trustor has received no notice to the contrary. Without Beneficiary's prior written consent, Trustor will not impose any restrictive covenants upon the Property. As of the date hereof, no action or proceeding is pending before any court, quasi-judicial body or administrative agency relating thereto. (c) In the event of any loss, damage or destruction to the Property, Trustor shall, to the extent that insurance proceeds are available for rebuilding under Section 3(b) below, promptly and in a good and workmanlike manner repair, rebuild and restore such loss, damage or destruction to its original condition, pay when due all costs incurred, and keep the Property free from all claims, charges, claims of liens, or encumbrances for work performed or materials furnished, whether superior or subordinate to the lien of this Deed of Trust. Trustor may contest in good faith the validity or amount of any claim, charge, lien or encumbrance by appropriate proceedings provided by law, including payment of the claim, charge, lien or encumbrance under protest, if required, provided that: (i) Trustor promptly pays any sums found to be due upon a final determination of the contested claim, charge, lien or encumbrance; and (ii) prior to any such contest, Trustor shall furnish Beneficiary a cash deposit, bond or other security, in amount and form satisfactory to Beneficiary, to protect Beneficiary against the sale or forfeiture of, or creation of a lien against, the Property. (d) Beneficiary shall have the right at its sole risk to enter upon the Property at any and all reasonable times and to inspect the same to ascertain whether Trustor is in compliance with the terms and provisions of this Deed of Trust. 3. Insurance. (a) Trustor shall keep all of the Property (except land, paving and roads) insured to 100% of its full insurable replacement cost value (including the cost of debris removal), against loss by fire and such other hazards, casualties, and contingencies as are customarily insured against by persons owning similar properties in the locality of the Property or customarily required by prudent institutional lenders making loans secured by such properties for such periods and in such amounts as Beneficiary may reasonably require from time to time. Trustor will pay all premiums for such insurance promptly when due and prior to delinquency. All policies (or, at Beneficiary's election, evidence of satisfactory insurance coverage and copies of the policies) shall, at Beneficiary's request, be delivered to and held by Beneficiary. (b) Trustor will give immediate written notice to Beneficiary of any loss or claim, and Beneficiary may make proof of loss if not made promptly by Trustor. Each insurance company is hereby authorized and directed to make payment for such loss directly to Beneficiary instead of to Trustor or to Trustor and Beneficiary jointly. Insurance proceeds or any part thereof may be applied by Beneficiary, at its option, either to the reduction or payment of the Obligations or to the repair, rebuilding and restoration of the Property lost, damaged or destroyed, but Beneficiary shall not be obligated to ensure the proper application of any amount paid over to 4 Trustor. Irrespective of the dollar amount of the loss or claim, Trustor shall provide Beneficiary with sufficient documentation and information necessary or required by Beneficiary to verify and confirm the exact nature and extent of the damage or destruction to the Property and the amount of funds required to repair or rebuild the Property, together with a budget (which shall be subject to Beneficiary's approval) describing the repair or restoration work to be performed and the costs of labor and material for each stage of repair or restoration work. In the event that proceeds are used for the repair, rebuilding and restoration of the Property, insurance proceeds shall be placed in a segregated account with Beneficiary and used for the repair, rebuilding and restoration of the insured loss, through such procedures and with such safeguards for release of such proceeds and payment of construction and related expenses as Beneficiary customarily imposes for advances of construction loan funds, which may include requirements that: (i) Trustor first expend or deposit into the escrow account any difference between the total cost of repair, rebuilding and restoration and the amount of such proceeds; (ii) Trustor, at its expense, promptly prepare and submit to Beneficiary all plans and specifications necessary for the restoration and repair of the damaged Property, together with evidence acceptable to Beneficiary setting forth the total expenditure needed for the restoration and repair based upon a fixed price contract with a reputable builder; (iii) the plans and specifications and all other aspects of the proposed restoration and repair be subject to Beneficiary's approval in the exercise of its reasonable discretion; (iv) Trustor commence restoration and repair of the damaged Property only after Beneficiary shall have notified Trustor in writing that the use of proceeds for restoration and repair is allowable under this Section 3, that the required safeguards, procedures and assignments described in this Section 3 are in place and that the plans and specifications and all other aspects of the proposed restoration have been approved by Beneficiary, and Trustor shall thereafter proceed diligently with the restoration and repair until completed; (v) disbursements be made from the escrow account for the restoration and repair in accordance with a disbursement schedule; and (vi) all funds held in the escrow account be assigned to Beneficiary as further security for the Obligations. Any insurance proceeds not used for repair or restoration of the Property shall be applied to the last maturing installment of principal due and owing under the Note. The Property as rebuilt or restored shall be of at least equal value and substantially identical character as prior to the damage or destruction. 5 (c) Upon (i) Beneficiary's receipt of a trustee's deed or sheriff's deed to any portion of the Real Property, (ii) the taking by Beneficiary of possession of the Property, or (iii) a conveyance in lieu of foreclosure, all right, title and interest of Trustor in and to any property damage and casualty insurance policies then in force, including any right to unearned premiums, shall inure to the benefit of and pass to Beneficiary (or the receiver, as appropriate) and, upon sale, to the purchaser of the Property. Trustor hereby irrevocably appoints Beneficiary and its successors and assigns as Trustor's duly constituted attorneys -in -fact, with full power of substitution, to transfer and assign such policies upon the occurrence of any of such events. This power is coupled with an interest and is irrevocable. 4. Payment of Taxes, Assessments and Other Liens or Charges. At least five (5) days prior to when the same becomes due and payable, Trustor shall pay or cause to be paid to the proper officials or persons all taxes and assessments, general or special, of every nature and description (including assessments, dues, use fees and charges for water) that shall have been levied or assessed on the Property and, upon Beneficiary's request, shall deliver to Beneficiary receipts evidencing such payments. Trustor may contest in good faith the validity or amount of any tax, assessment or governmental charge by appropriate proceedings provided by law, including payment of the tax, assessment or charge under protest, if required, provided that: (a) Trustor promptly pays any sums found to be due upon a final determination of the contested tax, assessment or governmental charge; and (b) prior to any such contest, Trustor shall furnish Beneficiary a cash deposit, bond or other security, in h 1, 1 n 1 1x.Y amount and form satisfactory to Beneficiary, to protect Beneficiary against the sale or forfeiture of, or creation of a lien against, the Property. Trustor shall not consent to, or vote in favor of, the inclusion of any portion of the Real Property in a special improvement, assessment, community facilities or similar district without Beneficiary's prior written consent. Trustor shall provide Beneficiary with prompt notice of any notification that Trustor may receive from any governmental authority or other person of any intent or proposal to form such a district that may include any portion of the Real Property, and Beneficiary shall have the right to object to the same, and to otherwise appear and participate in hearings and other proceedings, in its own name or in Trustor's name. Trustor shall pay or cause to be paid when due all charges for water, water delivery, gas, electric power and light, telephone, sewer, waste removal, bills for repairs, and all other claims, encumbrances and expenses incident to the ownership and occupancy of the Property. 5. Eminent Domain. Any award or payment of damages or compensation in connection with any private trespass or injury to the Property, exercise of the right of eminent domain or any condemnation proceeding for public use of or injury to the Property or any part thereof, or any right or interest therein, is hereby assigned and payable to Beneficiary, which may apply or release all or any portion of such award, compensation or damages received by it (net of the costs and expenses incurred by Beneficiary in collecting such amounts) in the same manner, upon the same conditions and with the same effect as provided in Section 3(b) of this Deed of Trust for the disposition of proceeds of fire or other insurance, as if references in Section 3(b) above to insurance proceeds instead referred to condemnation awards (or amounts paid in lieu thereof) and references to damage and casualty loss instead referred to the taking by condemnation or power of eminent domain (or conveyance in lieu thereof); provided that: (a) any award or compensation attributable to land or to improvements that will not be reconstructed shall be applied to the Obligations; and (b) if any condemnation or taking renders the remaining portions of the Property unsuitable, in the judgment of an independent architect acceptable to Beneficiary and engaged by Trustor, for further development in accordance with the plans and specifications submitted to and approved by Beneficiary as described in Section 3(b) above, the entire award or compensation shall be applied to the Obligations. Beneficiary shall be entitled to join and participate in any eminent domain or condemnation proceedings, including the negotiation and adjudication of any damages, award or settlement, and no stipulation or agreement shall be entered into by Trustor without the prior consent and approval of Beneficiary. Trustor shall pay or reimburse to Beneficiary the legal expenses, appraisal and expert witness fees incurred by Beneficiary and any other direct and out -of- pocket costs incurred by Beneficiary because of such eminent domain and condemnation proceedings. If a cash bond or deposit is to be received by Trustor for the immediate possession of the Property, all sums paid shall be applied by Trustor to the Obligations, unless otherwise agreed by Beneficiary. Notwithstanding any application of sums paid, only Trustor shall be the withdrawing party of sums paid for the purpose of determining any liability for return of any such cash bond or deposit, and Trustor shall promptly satisfy any claim with respect to any such liability and shall save and hold Beneficiary harmless from any claim for return of such cash bond or deposit, including any claim asserted after the release and reconveyance of this Deed of Trust. Any condemnation proceeds not used for repair or restoration of the Property shall be applied to the last maturing installment of principal due and owing under the Note. 6. Actions or Proceedings Affecting Property; Duty to Appear. Trustor agrees to appear in and prosecute or defend any action or proceeding that may affect the priority of this Deed of Trust or the security, rights or powers of Beneficiary hereunder or that seeks to impose liability on Trustee or Beneficiary because of any act or omission of Trustor, and Trustor shall pay all costs and expenses (including the cost of searching title) and attorneys' fees incurred in such action or proceeding. Beneficiary may appear in and defend any action or proceeding purporting to affect the security or priority hereof or the rights or powers of Beneficiary. Beneficiary may, if Beneficiary reasonably determines that Trustor is failing or will fail to do so, pay, purchase, contest or compromise any adverse claim, encumbrance, charge or lien which, in the judgment of Beneficiary, appears to be prior or superior 6 168 to the lien of this Deed of Trust. All amounts paid, suffered or incurred by Beneficiary in exercising the authority granted in this Deed of Trust, including reasonable attorneys' fees, shall be added to the Obligations, shall be a lien on the Property and shall be due and payable by Trustor to Beneficiary on demand, together with interest from the date of advance until paid at the then effective Default Rate. 7. Additional Documents. Trustor agrees to execute and deliver to Beneficiary, upon demand, any additional agreements, instruments or documents that Beneficiary deems reasonably necessary on a conservative basis to secure to Beneficiary any right or interest granted or intended to be granted to Beneficiary under this Deed of Trust. In the event any rights, easements or other hereditaments shall hereafter become appurtenant to any part of the Property, they shall become subject to the lien of this Deed of Trust. 8. Sale, Lease or Conveyance by Trustor. Except as expressly permitted by this Deed of Trust, Trustor shall not sell, convey or further encumber or other interests affecting title to the Property) or pledge or hypothecate or in any manner dispose of any of its interest in all or any portion of the Property, voluntarily, involuntarily or by operation of law, without the prior written consent of Beneficiary, which Beneficiary may withhold in its sole and exclusive discretion. Beneficiary may require as a condition of its consent a change in the terms and conditions of repayment of the Obligations, including payment of a fee, an increase in interest rate payable and/or a reduction in the time remaining prior to the maturity date. For the purposes of this Section 8, a change in the control or management of Trustor, transfer or encumbrance of fifty percent (50 of the voting stock of a corporation which is a Trustor, transfer or encumbrance of fifty percent (50 of the ownership or voting interests in a partnership, joint venture or limited liability company which is a Trustor, or the death or dissolution of the Trustor or any transfer or assignment of all or substantially all of the assets of a Trustor or any general partner or member of Trustor shall be deemed a transfer of the Property which gives the Beneficiary the right to exercise the remedies set forth herein. Trustor shall give Beneficiary ten (10) business days' prior written notice of any proposed transaction which requires Beneficiary's consent, and Trustor shall furnish to Beneficiary such information as Beneficiary may reasonably require. Beneficiary may require, as a condition of its consent to any transfer or conveyance of the Property or any portion thereof, that: (i) any person succeeding to an ownership interest in the Property or any portion thereof assume personal liability for the payment and performance of the Obligations; (ii) Trustor confirm its continuing obligation and liability for the payment and performance of the Obligations; (iii) Trustor shall have obtained and provided to Beneficiary evidence of the consent of all guarantors of the payment of the Obligations or any portion thereof or the completion of the improvements to be constructed or any portion thereof to the transfer and their acknowledgment that the transfer will not in any manner impair the validity or effectiveness of their respective guaranties; (iv) Trustor provide to Beneficiary such documentation, title insurance endorsements, opinions of counsel and other items as Beneficiary may determine are reasonably required or prudent to assure that Beneficiary's rights under Beneficiary's loan documents are maintained in full force and effect and are not impaired; (v) Trustor execute such financing statements and other documents as Beneficiary may require in its conservative discretion in order to continue the perfected status of its security interests with respect to the Property; (vi) Trustor or the transferee reimburse Beneficiary for its reasonable legal expenses in connection with the consideration and documentation of the transfer and assumption; and (vii) no Event of Default shall then exist. Consent to any one transaction shall not release Trustor from personal liability for the Obligations or be deemed to constitute consent to any other transaction, and shall in no way obligate 7 Beneficiary to subordinate the lien of this Deed of Trust to any interest created by such sale, transfer, lease, assignment, conveyance, encumbrance or other disposition. If the ownership of the Property or any portion thereof becomes vested in any person other than Trustor, Beneficiary may deal with such successor(s) in interest with reference to the Obligations and this Deed of Trust in the same manner as with Trustor, without in any way vitiating or discharging Trustor's liability hereunder or for payment of the Obligations. However, the foregoing sentence shall in no way constitute or imply Beneficiary's consent to any transfer of the ownership of the Property or any portion thereof. 9. Record Inspection. Trustor will permit Beneficiary or its representatives from time to time to examine within the county in which the Real Property is located all books and records and agreements of Trustor pertaining to any portion of the Property. 10. Substitute Performance. Should Trustor fail to pay or perform any portion of the Obligations, then Beneficiary, without obligation to do so and without releasing Trustor from any portion of the Obligations, upon five (5) days' prior written notice (or such shorter period as is reasonably practicable under the circumstances) to Trustor, may pay or perform the same in such manner and to such extent as Beneficiary, in its sole good faith discretion, may deem necessary on a conservative basis to protect the security hereof. Beneficiary shall be authorized to enter upon the Property for such purposes. All expenses or charges that Beneficiary may incur in connection with the care or preservation of the Property or any part thereof at any time, or the payment of any taxes, assessments, insurance premiums, or encumbrances levied upon or attaching to the Property or any portion thereof or interest therein, or any cost of redemption thereon, or any sums of money, charges, expenses or fees which Beneficiary may pay pursuant to any provision hereof, shall be added to the Obligations, shall be payable by Trustor on demand, and shall bear interest at the then effective Default Rate from the date of advance until paid. The foregoing amounts shall also be guaranteed by any guarantee(s) now or hereafter relating to the Obligations. 11. Events of Default; Acceleration; Remedies. Upon the occurrence of any Event of Default deemed in the Note), and at any time thereafter while such Event of Default is continuing, Beneficiary may declare the Obligations to be immediately due and payable, and Beneficiary may exercise any one or more of the rights and remedies described herein and in the other Loan Documents or applicable law. 12. Additional Remedies of Beneficiary; No Waiver. In addition to any remedies provided herein for breach or default hereof, Beneficiary shall have all other remedies allowed or provided for under or described in the Note and all other writings executed or. delivered in connection with the Obligations, or available under applicable law. Any one or more rights and remedies available to Beneficiary may, at its option, be sought and exercised concurrently or consecutively, and in inconsistent proceedings, whether legal or equitable. Beneficiary's failure to exercise any of its rights upon any default or breach shall not prejudice its rights in the event of any other or subsequent default or breach. Beneficiary's delay in exercising any rights shall not preclude it from exercising the same at any time during the continuance of such default or breach. By accepting any performance or payment of any portion of the Obligations after its due date, Beneficiary shall not waive the agreement contained herein that time is of the essence hereof, nor shall Beneficiary waive its rights to require prompt performance or payment when due of the remainder of the Obligations or to consider failure to so perform or pay a default hereunder. 13. Sale by Trustee Pursuant to Power of Sale; Judicial Foreclosure. After the lapse of such time as may then be required by law following the recordation of the notice of default, and notice of default and notice of sale having been given as then required by law, Trustee, without demand on Trustor, shall sell the Property on the date and at the time and place designated in the notice of sale at public auction to the highest bidder, the purchase price payable in lawful money of the United States at the time of sale. The person conducting the sale may, for any cause deemed expedient, postpone the sale from time to time 8 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 hundred eighty (180) days beyond the date designated in the notice of sale, notice of the time, date, and place of sale shall be given in the same manner as the original notice of sale. Trustee shall execute and deliver to the purchaser a Trustee's Deed conveying the Property so sold, but without any covenant of warranty, express or implied. The recitals in the Trustee's Deed of any matters or facts shall be prima facie evidence in any court of the truthfulness thereof, but the recitals shall be conclusive in favor of a purchaser for value in good faith relying upon them. Any person, including Beneficiary, but excluding Trustee, may bid at the sale. Trustee shall apply the proceeds of the sale as follows: 9 1. To the payment of the costs and expenses of such sale, including reasonable compensation to Trustee, Beneficiary, their agents and counsel, and of any judicial proceedings wherein the same may be made, and of all expenses, liabilities, and advances made or incurred by Trustee or Beneficiary under this Deed of Trust, together with interest at the default rate specified in the Note. 2. To the payment of the whole amount then due, owing, or unpaid upon the Note for principal and interest, with interest on the unpaid principal and accrued interest at the rate specified in the Note, from and after the happening of any Event of Default from the due date of any such payment of principal until the same is paid. 3. To the payment of all other Obligations required to be paid by Trustor pursuant to any provisions of the Loan Documents. 4. The surplus, if any, to whomsoever may be lawfully entitled to receive the same, or Trustee, in Trustee's discretion, may deposit the balance of such proceeds with the County Clerk of the County wherein the Property is located. Upon any sale made under or by virtue of this section, whether made under the power of sale herein granted or under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale, the Beneficiary may bid for and acquire the Property or any part thereof and, in lieu of paying cash therefor, may make settlement for the purchase price by crediting upon the Obligations of Trustor secured by this Deed of Trust the net sales price, after deducting therefrom the expenses of the sale and the cost of the action and any other sums which the Beneficiary is authorized to deduct under this Deed of Trust. Beneficiary, upon so acquiring the Property or any part thereof, shall be entitled to hold, lease, rent, operate, manage, and sell the same in any manner provided by applicable laws. 14. Attorneys' Fees and Expenses; Failure of Trustor to Vacate. If any sale, proceeding, lawsuit or arbitration is commenced (including any appeal or review thereof and any bankruptcy case or proceedings and issues peculiar to bankruptcy), or any attorney is retained to collect any amounts secured hereby or to enforce any rights granted Beneficiary hereunder (regardless of whether an action is actually commenced), Trustor shall pay Beneficiary's reasonable attorneys' fees and costs (to be determined by the court or arbitrator and not by jury, in the case of litigation or arbitration) incurred in enforcing its rights under the Note, this Deed of Trust, and Beneficiary's other loan documents, any guaranty now or hereafter relating to the Obligations and any other agreements which evidence, secure or guarantee all or any portion of the Obligations, and Trustee's reasonable attorneys' fees, Trustee's fees and its costs and expenses in connection with any sale proceedings or lawsuit. In addition, Trustor shall pay a reasonable fee for title searches, foreclosure reports, trustee's sale guaranties, litigation guaranties, publication costs, environmental assessments or appraisal reports made or obtained either (i) in preparation for and in the conduct of any such proceedings or suit (including any appeal or review thereof and any arbitration or 10 bankruptcy case or proceedings and issues peculiar to bankruptcy), or (ii) to evidence to potential bidders at any judicial or nonjudicial sale pursuant to this Deed of Trust the true condition of title to or the value of the Property or any portion thereof. All of the foregoing fees and expenses shall be payable on demand, added to the Obligations and secured by this Deed of Trust, shall be included in any judgment or arbitration award obtained by Beneficiary and shall be paid to Beneficiary as part of any reinstatement tendered hereunder. If Trustor fails to vacate the Property following foreclosure or sale, Trustor shall be a tenant at sufferance and subject to an action for forcible entry and detainer, wherein Beneficiary shall be entitled to collect from Trustor, in addition to all other amounts due hereunder, a reasonable rental for the Property during the period of such holding over at sufferance. The foregoing amounts shall also be guaranteed by any guarantee(s) now or hereafter relating to the Obligations. 15. Sale of Property; Right of Beneficiary to Buv. In the event of a trustee's sale or foreclosure sale, the Property may be sold, at the option of Beneficiary or Trustee, and Beneficiary may bid and become the purchaser at any such sale. Trustee shall deliver to any such purchaser its deed conveying the Property so sold, but without any covenant or warranty, express or implied. The recitals in any such deed of any matters or facts shall be prima facie evidence in any court of the truthfulness thereof, but the recitals shall be conclusive in favor of a purchaser for value in good faith relying upon them. The proceeds of the sale shall be applied as provided by law. The purchaser at the Trustee's sale shall be entitled to possession of the Property within ten (10) days after such sale. Title to all insurance policies and the proceeds thereof shall vest in and become the property of the purchaser at any such sale, as provided in Section 3(c) hereof. The power of sale under this Deed of Trust shall not be exhausted by any one or more sales or attempted sales as to all or any portion of the Property remaining unsold, but shall continue in full force and effect until all of the Property shall have been sold by exercise of the power of sale in this Deed of Trust and the Obligations has been fully paid and performed. 16. Effect of Foreclosure on Existing Leases. Upon any sale of the Property under this Deed of Trust, any Lease that is subordinate to the lien of this Deed of Trust shall remain in effect, the purchaser thereby being subrogated to Trustor's interest therein, unless the purchaser elects to treat any such Lease as terminated by virtue of the sale under the prior lien and charge of this Deed of Trust, unless a separate nondisturbance agreement, in the form of Beneficiary's standard subordination, non disturbance and attornment agreement or similar agreement approved as to form and substance by Beneficiary in its sole and absolute discretion, executed by Beneficiary precludes such termination. 17. Reconvevance of Property. Upon (a) written request of Beneficiary stating that the entire Obligations has been paid, (b) surrender of this Deed of Trust and the Note to Trustee for cancellation and retention, and (c) payment of Trustee's fees, if any, Trustee shall reconvey the Property without warranty. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The grantee in such reconveyance may be described as "the person or persons legally entitled thereto." 18. Acceptance of Trust; Trustee Resignation; Notification of Sale. Trustee accepts the trust created hereby, which shall be irrevocable by Trustor, when this Deed of Trust, executed and acknowledged, is recorded as provided by law. Trustee may resign at any time by giving notice thereof to Beneficiary as provided by law. Trustee is not obligated to notify any party hereto of pending sale under any other deed of trust or of any action or proceeding in which Trustor, Beneficiary or Trustee shall be a party, unless brought by Trustee. 19. Successor Trustee. Beneficiary may, from time to time, by instrument in writing, substitute a successor or successors to any Trustee named herein or acting hereunder, in the manner provided by law. Such writing, upon recordation, shall be conclusive proof of proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the predecessor Trustee, succeed to all its title. ')e-V:1.72 20. Additional Security. The taking or acceptance of this Deed of Trust by Beneficiary shall in no event be considered to constitute a waiver of, or in any way affect or impair, any other security that Beneficiary may have, acquire simultaneously herewith, or hereafter acquire for the Obligations, nor shall the taking at any time by Beneficiary of any such additional security be construed to constitute a waiver of, or in any way affect or impair, the security of this Deed of Trust. Beneficiary may resort to its several securities for the payment of the Obligations in such order and manner as it may deem appropriate. Trustor, and any party hereafter claiming an interest in any portion of the Property by or through Trustor (other than Beneficiary), hereby waive any benefits under the doctrine of marshaling in the event of judicial or nonjudicial foreclosure under this Deed of Trust. 21. Construction of Agreement Definitions. This Deed of Trust shall apply to the parties according to the context hereof, without regard to the number or gender of words or expressions used herein. The captions of paragraphs in this Deed of Trust are for convenience and reference only, and in no way define or limit the scope or intent of this Deed of Trust or the provisions of such paragraphs. This Deed of Trust shall be construed as a whole, in accordance with the fair meaning of its language, and, as each party has been represented by legal counsel of its choice or deliberately chosen not to be so represented, in the negotiation of this Deed of Trust, neither this Deed of Trust nor any provision thereof shall be construed for or against either party by reason of the identity of the party drafting the same. As used in this Deed of Trust, the term(s): (a) "include" or "including" shall mean without limitation by reason of enumeration; (b) "herein," "hereunder," "hereof," "hereinafter" or similar terms refer to this Deed of Trust as a whole rather than to any particular paragraph; (c) "person" includes a corporation, trust, partnership, limited liability company, association, governmental authority or other entity, as well as a natural person; (d) "Beneficiary" shall mean the holder at any time, including pledgees, of the Note or other writings secured hereby, whether or not named as Beneficiary herein; and (e) "Trustor" shall include all persons or entities named in this Deed of Trust as Trustors, severally and collectively, and any subsequent owner of all or any portion of the Property, and their liability under this Deed of Trust shall be joint and several (however, the foregoing shall in no way constitute or imply Beneficiary's consent to any transfer of the ownership of the Property or any portion thereof). 22. Time of the Essence; Successors and Assigns. Time is of the essence hereof. Without limitation of the restrictions on transfer described in herein above, this Deed of Trust applies to, inures to the benefit of, and binds all parties hereto, their heirs, personal representatives, legatees, devisees, successors and assigns. 24. Amendment. This Deed of Trust may not be amended or changed except by a written agreement signed by Trustor and Beneficiary. 25. Severability; Enforceability (a) Each covenant, provision and condition of this Deed of Trust shall be interpreted so as to be valid and effective under applicable law. If any such covenant, provision or condition is held to be void or invalid, the same shall not affect the remainder hereof, which shall be valid and effective as though the void or invalid covenant, provision or condition had not been contained herein. (b) Should this instrument be or ever become ineffective as a deed of trust, then it shall be construed and enforceable as a realty mortgage (with Trustor as the mortgagor and Beneficiary as the mortgagee). (c) If the lien of this instrument is invalid or unenforceable (either as a deed of trust or as a realty mortgage) as to any part of the Obligations, or if the lien is invalid or unenforceable 11 ..`193 as to any portion of the Property, the unsecured or partially secured portion of the Obligations shall be completely paid prior to the payment of the remaining secured or partially secured portion of the Obligations. All payments made on the Obligations, whether voluntary or pursuant to foreclosure or some other enforcement action or procedure taken hereunder, shall be considered to have been first applied to the full payment of that portion of the Obligations which is not secured or fully secured by the lien of this instrument. 26. Incorporation of Exhibits. Any exhibit attached hereto is hereby incorporated herein and made a part hereof for all purposes, and references in this Deed of Trust to such exhibits shall be deemed to include this reference and incorporation. 27. No Offset. All sums comprising the Obligations payable by Trustor shall be paid without notice, demand, offset, deduction, counterclaim, defense, abatement, suspension, diminution or reduction. Trustor's obligation to do so (or to pay or perform other obligations of Trustor, the payment or performance of which is secured by this Deed of Trust) shall not be released, discharged or otherwise diminished by reason of: (a) any damage to or destruction of, or any condemnation or similar taking of, the Property or any portion thereof; (b) any restriction or prevention of, or interference with, the use of the Property or any portion thereof; (c) any title defect or encumbrance, or any eviction from the Property or any portion thereof by the holder of superior title or otherwise; (d) any bankruptcy, insolvency, reorganization, composition, dissolution, liquidation or similar proceeding relating to Trustor or Beneficiary, or any action taken with respect to this Deed of Trust by any trustee or receiver of Trustor or Beneficiary, or by any court, in any such proceeding; (e) any claim that Trustor may now or in the future have against Beneficiary; (f) any default or failure on the part of Beneficiary to perform or comply with any of the terms of this Deed of Trust or any other loan document with Trustor; or (g) any other similar or dissimilar occurrence. Beneficiary's acceptance of any payment in an amount less than the amount then due and owing under the Loan Documents shall be deemed an acceptance on account only, and shall not in any way constitute an accord and satisfaction or a waiver, or impair Beneficiary's ability to treat an Default or Event of Default as continuing to exist. 28. No Merger. If the interests of Beneficiary and Trustor under this Deed of Trust shall at any time become vested in Beneficiary, by reason of foreclosure or otherwise, the lien of this Deed of Trust shall not be destroyed or terminated by application of the doctrine of merger and, in such event, Beneficiary shall continue to have and enjoy all of the rights and privileges of Beneficiary as to the separate estates, unless otherwise consented to in writing by Beneficiary. Remainder of this page intentionally left blank 12 above. TRUSTOR: IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first set forth G Y D AN ALDER, Trustee of THE ALDER FAMILY TRUST, dated January 23, 1987, as amended and restated October 19, 2007 CAROLYN TANNER ALDER, Trustee of THE ALDER FAMILY TRUST, dated January 23, 1987, as amended and restated October 19, 2007 STATE OF Da t4 COUNTY OF ss. On this 7day of said State, personally appe fed GAMY DEAN ALDER and CAROLYN TANNER ALDER, who executed the foregoing instrument. 2010, before me, the undersigned, a Notary Public in and for 13 N I TAR PUBLIC Notary Public TASHA BAGLEY Commission #578768 My Commission Expires October 18, 2012 State of Utah EXHIBIT A LEGAL DESCRIPTION Shall mean that certain real property located at 345 N. Collett Ave., Cokeville, WY 83114, more particularly described as follows: LOT 3 OF THE RYAN'S CREEK ADDITION TO THE TOWN OF COKEVILLE, LINCOLN COUNTY, WYOMING ACCORDING TO THE OFFICIAL PLAT THEREOF. Parcel No. 24190640000100 14 1.75