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HomeMy WebLinkAbout898107WHEN RECORDED MAiL TO RECEIVED LINCOLN COU¢.TY OLERK DEED OF TRUST ~VITH-ASSIGNMENT OF RENTS This Deed of Trust, made this ~'~"~day of ~& ,20 ~ Cbetween FAE Holdings 0403032R, L.L.C., a Utah limited liability company, Trustor, whose address is c/o First American Exchange Company, LLC, 560 South 300 East, Salt Lake City, UT 84111, Cary G. P.p_~_e~Eson, as Trustee, and Cary G. Peterson and Ila Ranee Peterson, Trustees of the Ila Ranee Peterson Revocable Trust and Cary G. Peterson and Ila Ranee Peterson, Trustees of the Cary G. Peterson Revocable Trust, Darin G. Peterson, JoElleu Peterson, Michael C. Peterson and Angela Rasmusson, as Beneficiary, WITNESS: that Trustor CONVEYS AND WARRANTS to trustee in trust, with power of sale, the following described property, situated in Lincoln County, Wyoming: See Exhibit "A" attached TOgether with all buildings, fixtures and improvements thereon and all water rights, rights of way, easements, rents, issues, profits, income, tenements, hereditaments, privileges and appurtenances thereunto belonging, now or hereafter used or enjoyed with said property, or any part thereof, SUBJECT, HOWEVER, to the right, power and authority hereinafter given to and conferred upon Beneficiary to collect and apply such rents, issues, and profits. No Recourse. Beneficiary shall not exercise its right to institute any action against Trustor for the payment of any sum of money which is or may bePayable under the promissory note · secured hereby (the "Note"), other than the right to foreclose this Deed of Trust, provided however, that nothing shall be, or deemed to be; a release or impairment of the indebtedness, or of the lien thereof upon the premises, or shall preclude the holder of the note secured by the Deed of Trust from foreclOsing the Deed of Trust in case of any default, or from enforcing any and all rights under and by virtue of the Deed of Trust. For the pUrPose of Securing: (1) payment of the, indebledness evidenced by a promissory note of even date hereof in the principal sum of $~ r/-'C// ~/t~,. _~'~made by rrustor, payable to the order of Beneficiary at the times, in the manner and with interest as therein set forth, and any extensions and/or renewals or modifications thereof; (2) the performance of each agreement of Trust0r herein contained; (3) the payment of such additional loans or advances as hereafter may be made to Trustor, or his successors or assigns, when evidenced by a promissory note or notes reciting that they are secured by this Deed of Trust; and (4) the payment of all sums expended or advanced by Beneficiary under or pursuant to the terms hereof, together with interest thereon as herein provided. To Protect The Security of This Deed of Trust, Trustor Agrees: 0403032R To keep said property in good condition and repair; not to remove' or demolish any 65 (initial EAT Acquisition) building thereon; to complete 'or restore promptly and in good and workmanlike manner any building which may be constructed, damaged or destroyed thereon; to comply with all laws, covenants and restrictions affecting said property; not to commit or permit waste thereof; not to commit', suffer or permit any act upon Said property in violation of law; to do all other acts which fi.om the character or use of said property may be reasonably necessary, the specific enumerations herein 'not excluding the general; and, if the loan secured hereby or any part thereof is being obtained for the purpose of financing construction of improvements on said property Trustor further agrees: (a) To Commence construction promptly and to pursue same with reasonable diligence to completion in accordance with plans and specifications satisfactory to Beneficiary, and (b) To allow Beneficiary to inspect said property at all times during construction. Trustee, upon pres'entation to it of an affidavit signed by Beneficiary, setting forth facts showing a default by Trustor under this numbered paragraph, is authorized to 'accept as true and conclusive all facts and statements therein, and to act thereon hereunder. 2. To provide and maintain insurance, of such type or types and amounts' as Beneficiary may require, on the improvements now existing or hereafter erected or placed on said property. Such insurance shall be carried in companies approved by Beneficiary with loss payable clauses in favor of and in form acceptable to Beneficiary. In the event of loss, Trustor shall give immediate notice to Beneficiary, who may make proof of loss, and each insurance company concerned is hereby authorized and directed to make payment for such loss directly to Beneficiary, instead of to Trustor and Beneficiary jointly, and the insurance proceeds, or any part thereof, may be applied by Beneficiary, at its option, to the reduction of the indebtedness hereby secured or to the i'estoration or repair of the property damaged. In the event that the Trustor shall fail to provide satisfactory hazard insurance, the Beneficiary may procure;' on the Trustor's behalf, insurance in favor of the Beneficiary alone. If insurance cannot be secured by the Trustor to provide the required coverage, this will constitufe an act of default under the terms of this Deed of Trust. 3. To deliver to, pay for and maintain with Beneficiary until the indebtedness secured hereby is paid in full, such evidence of title as Beneficiary may require, including abstracts of title or policies of title insurance and any extensions or renewals thereof or supplements thereto. 4. To appear in and defend any action or Proceeding purporting to affect the security hereof, the title to said property, or the rights or powers of Beneficiary or Trustee; and should Beneficiary or Trustee elect to appear in or defend any such action or proceeding, to pay all costs and expenses, including cost of evidence of title and attorney's fees in a reasonable sum incurred by Beneficiary or Trustee. 5. To pay at least 10 days before delinquency all taxes and assessments affecting said property, including all assessments upon water company stock and all rents, assessments and charges for water, appurtenant to or used in cOnnection with said property; to pay, when due, all encumbrances, charges, and liens with interest, on said property or any part thereof, which at anY time appear to be prior or superior hereto; to pay all coSts, fees, and expenses of this Trust. 6. To pay to Beneficiary monthly, in advance' an amount, as estimated by Beneficiary in its 0403032R 66 (Initial EAT Acquis!tion) 900 discretion, sufficient to pay all taxes and assessments affecting said property, and all premimns on insurance therefor, as and when the same shall become due. 7. Should Trustor fail to make any payment or to do any act as herein provided, then Beneficiary or Trustee, but without obligation so to do and without notice to or demand upon Trustor and without releasing Trustor from any obligation hereof, may: Make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof, Beneficiary or Trustee being authorized to enter upon said property for such purposes; commence, appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; pay, purchase, contest, or compromise any encumbrance, charge or lien which in the judgment of either appears to be prior or superior hereto; and in exercising anY Such powers, incur any liability, expend whatever amounts in its absol~ute discretion it may deem necessary therefor, including cost of evidence of title, employ counsel, and pay his reasonable fees. 8. To pay immediately and without demand all sums expended hereunder by Beneficiary or TrUstee, with interest from date of expenditure at the rate of-0-% per annum until paid, and the repayment thereof shall be secured hereby. 9. To pay to Beneficiary a "late charge" of not to exceed five (5) cents for each One Dollar ($1.00) of each payment due hereunder or due pursuant to 'the aforesaid promissory note of even date hereof which is more than fifteen (15) days in arrears. Tlfis payment shall be made to cover the extra expense involved in handling delinquent payments. IT IS MUTUALLY AGREED THAT: 10. Should said proPerty or any part thereof be taken or damaged by reason of any public improvement or condemnation proceeding, or damaged by fire, or earthquake, or in any other manner, Beneficiary shall be entitled to all compensation, awards, and other payments or relief therefor, and shall be entitled at its option to Commence, appear in and prosecute in its own name, any action or proceedings, or to make any compromise or settlement, in connection with such taking or damage. All such compensation, awards, damages, rights of action, and proceeds, including the proceeds of any policies of fire and other insurance affecting said property, are hereby assigned to Beneficiary, who may, after deducting therefrom all its expenses, including attorney's fees, apply the same on any indebtedness secured hereby. Trustor agrees to execute such further assignments of any compensation, award, damages, and rights of action and proceeds as Beneficiary or Trustee may require. 11. At any time and from time to time upon written request of Beneficiary, lmyment of its fees and presentation of this Deed of Trust and the note for endorsement (in case of full reconveyance, for cancellation and retention) without affecting the liability of any person for the payment of the indebtedness secured hereby, and without releasing the interest of any party joining in this Deed of Trust, Trustee maY (a) consent to the making of any map or plat of said property; (b) join in granting any easement or creating any restriction thereon; (c) join in any subordination or other agreement affecting this Deed of Trust or the lien or charge thereof; (d) grant any extension or modification of the terms of this loan; (e) reconvey, without warranty, all or any part of said 0403032R 67 (Initial EAT Acquisition) 901- property. The grantee in any reconveyance may be described as "the persons entitled thereto", and the recitals therein of any matters of facts shall be conclusive proof of the tntthfutness thereof. Trustor agrees to pay reasonable trustee's fees for any of the services mentioned in this para,apb. 12. As additional security, Trustor hereby assigns to Beneficiary, during the continuance of this trust, ~.11 rents, issues, royalties, and profits of the property affected by this Deed of Trust and of any personal property located thereon. Until Trustor shall default in the payment of any indebtedness secured hereby or in the performance of any agreement hereunder, Trustor shall have the right to collect all such rents, issues, royalties, and profits earned prior to default as they become due and payable. IfTrustor shall default as aforesaid, Trustor's right to collect any of such moneys shall cease and Beneficiary shall have the right, with or without taking possession of the property affected hereby, to collect all rents, royalties, issues, and profits. Failure or discontinuance of Beneficiary at any time or from time to time 'to collect any such moneys shall not in any manner affect the subsequent enforcement by Beneficiary of the right, power, and authority to collect the same. Nothing contained herein, nor the exercise of the right by Beneficiary to collect, shall be, or be construed to be, an affirmation by Beneficiary of any tenancy, lease or option, nor an assumption of liability under, nor a subordination of the lien or charge of this Deed of Trust to any such tenancy, lease or option. 13. Upon any default by Trustor hereunder, Beneficiary may at any time without notice, either in person, by agent, or by a receiver to be appointed by a court (Trustor hereby consenting to the appointment of Beneficiary as such receiver), and without regard to the adequacy of any security for the indebtedness hereby secured, enter upon and take possession of said property or any part thereof, in its own name sue for or otherwise collect said rents, issues, and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including reasonable attorney's fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. 14. The entering upon and taking possession 'of said property, the collection of such rents, issues, and profits, or the proceeds of fire and other insurance policies, or compensation or awards for any taking or damage of said property, 'and the application or release thereof as aforesaid, shall not cure or waive any default or notice or default hereunder or invalidate any act done pursuant to such notice. 15. The failure on the part of Beneficiary to promptly enforce any right hereunder shall not operate as a waiver of such right and the waiver by Beneficiary of any default shall not constitute a waiver of any other or subsequent default. 16. Time is of the essence hereof. Upon default by Trustor in the payment of any indebtedness secured hereby or in the performance of any agreement hereunder, all sums secured hereby shall immediately become due and payable at the option of Beneficiary. In the event of such default, Beneficiary may execute or cause Trustee to execute a written notice of default and of election to cause said property .to be sold to satisfy the obligations hereof, and Trustee shall file such notice for record in each county wherein said property or some part or parcel thereof is situated. Beneficiary also shall deposit with Trustee, the note and 'all documents evidencing .expenditures secured hereby. 0403032R 68 (Initial EAT Acquisition) 17. After the lapse of such time as may then be required by law following the recordation of said 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 said property on the date and at the time and place designated in said notice of sale either as a whole or in separate parcels, and in such order as it may determine (but subject to any statutory right of Trustor~to direct the order in which such property, if consisting of several known lots or Parcels, shall be sold), at public auction to the highest bidder, the purchase price payable in lawful money of the United States of America at the time of sale. The person conducting the sale may, for any cause he deems expedient, postpone the sale from time to time until it shall be completed and, in every such case, notice of postponement shall be given by public declaration thereof by such person at the time and place last appointed for the sale; provided, if the sale is postponed for longer than one day beyond the day designated in the notice of sale, notice thereof shall be given in the same manner as the original notice of sale. Trustee shall execute and deliver to the purchaser its Deed conveying said property so sold, but without any covenant of warranty, express or implied. The recitals in the Deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Beneficiary, may bid at the sale. Trustee shall apply the proceeds of the sale to payment of (1) the cost and expenses of exercising the power of sale and of the sale, including the payment of the Trustee's and attorney's fees; (2) cost of any evidence of title procured in connection with such sale and r~venue stamps on Trustee's Deed; (3) all sums expended under the terms hereof, not then repaid, with accrued interest at -0-% per annum from date of expenditure; (4) all other sums the secured hereby; and (5) the remainder, if any to the person or persons legally entitled thereto, or the Trustee, in its discretion, may deposit the balance of such prOceeds with the governmental office or official then designated by law for that purpose. 18. Trustor agrees to surrender Possession of the herein above described Trust property to the Purchaser at the aforesaid sale, immediately after such sale, in the event such possession has not previously been surrendered by Trustor. 19. Upon the occurrence of any default hereunder, Beneficiary shall have the option to declare all sums secured hereby immediately due and payable and foreclose this Deed of Trust in the manner provided by law for the foreclosure of mortgages on real property and Beneficiary shall be entitled to recover in such proceedings all Costs and expenses incident thereto, including a reasonable 'attorney's fee in such amount as shall be fixed by the court. 20. Beneficiary may appoint a successor trustee at any time by filing for record in the office of the County Recorder of each county in which said property or some part thereof is situated, a substitution of trusteel From the time the substitution is filed for record, the new trustee shall succeed to all the powers, duties, authority and title of the trustee named herein or of any successor trustee. Each such substitution shall be executed and acknowledged, and notice thereof shall be given and proof thereof made, in the manner provided by law. 21. This Deed of Trust shall apply to, inure to the benefit of, and bind all parties hereto, their heirs, legatees, devisees, fiduciaries, administrators, executors, successors and assigns. The term "Beneficiary" shall mean the owner and holder, including any pledgee, of the note secured hereby. In this Deed of Trust, whenever the context so requires, the masculine gender includes the 0403032R 69 (Initial EAT Acquisition) feminine and/or neuter, and the singular number includes the plural. 22. Trustee accepts this Trust when this Deed of Trust, duly executed and aCknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party 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. 23. This Deed of Trust shall be construed according to the laws of the State of Utah. 24. The undersigned Trustor requests that a copy of any notice of default and of any notice of sale hereunder be mailed to him at the address herein before set forth. FAE Holdings 0403032R, L.L.C., a Utah limited liability company By: First Amen~can Exchange Comp3~, LLC, a Dela~~ted?abi~n:ts manager · ~qYa~n(Mi~Anderson Its; ' Vice President. STATE OF UTAH ) )SS. County of Salt Lake ) On the'~ day of//,ff'q/~'/~ , 20(fL/_, personally appeared before me Michael A. Anderson, who being by me dub3 sworn did say, that he is the Vice President of First American Exchange Company, LLC, a Delaware limited liability company being the manager of FAE Holdings 0403032R, L.L.C., a Utah limited liability company and that the within and foregoing instrument was signed on behalf of said Corporation being the manager of the 'Limited Liability Company by authority of its Articles of Oi'ganization and acknowledged to me that said Limited Liability Company executed the same. BRIAN K. HAGLUND NOTIIItY PUBLIC · STATE O! UTAH 746 E. WINCHESTER ST., SUITE SAil LAKE CITY, ur. 84107 COMM. EXR 10-1-2005 Read and ApProved EXCHANGOR: By: Name: BY: Name: Cary G. Peterson and Ha Ranee Peterson, Trustees of the Ha Ranee Peterson Revocable Trust Car~//~. Peterson, t r-u~ ;e .... Ila Ranee Peterson; trustee Cary G. Peterson and Ila Ranee Peterson, Trustees of the Cary G. Peterson Revocable 0403032R 70 (Initial EAT Acquisition Trust By: Name: By: Cary//G. Peterson, trustee Name: Ila Ranee Peterson, trustee 904 Darin G. PetersOn By: Name: Darin G. Peterson JoEllen Peterson By: Name: JoEllen Peterson Date 0403032R 71 Initial EAT Acquisition) EXHIBIT A Parcel 1 That part of the NW'ASE~A of Section 25, T26N R120W of the 6th P.M., Lincoln County, Wyoming lying and being situate northerly of U.S. Highway '30. Parcel 2 T26N R119W of the 6th P.M., Lincoln County, Wyonfing Section 19: SW~ASW ¼; Section 30: W%NW~A and NW~ASW~A. T26N R120W of the 6th P.M., Lincoln County, Wyoming Section 24: SE¼SE¼, N~ASE~A, SW~ASE¼ and Lot 3; Section 25: EV2NE~A, NE~ASE~A and W%NE~A. LESS AND EXCEPT the following descrihed land: Part of Section 24, T26N R120W of the 6th P.M.. Lincoln County, Wyoming described as follows: Beginning at a point which is West 2488 feet, more or less, and South 2602 feet, more or less, from the Northeast corner of said Section 24 and rumfing thence East along and existing fence 1661 feet, more or less; thence SOuth along an existing fence 188 feet, more or less; thence thence thence thence thence thence Wdst along an existing fence 455 feet, more or less; South along an existing fence 89 feet, more or less; West along an existing fence 511 feet, more or less; North along an existing fence 233 feet, more or less, West along an existing fence 695 feet, more or less; North along the East right of way line of said highway, 44 feet, more or less to the point of beginning. LESS AND EXCEPT the land described in the Order of Conveyance to the State Highway Commission of Wyoming (Case 16-6007) filed April 21, 1981 in the Office of the Clerk of District Court, Lincoln County, Wyoming. ALSO LESS AND EXCEPT the lands conveyed to Lincoln County, Wyoming in Warranty Deed recorded July 10, 1935 in Book 20 of Deeds on page 15 of the records of the Lincoln County Clerk. ALSO LESS AND EXCEPT the lands conveyed to Lincoln County, Wyoming in Warranty Deed recorded August 4, 1935 in Book 21 of Deeds on page 183 of the records of the Lincoln County Clerk. ALSO LESS AND EXCEPT the lands conveyed to State Highway Commission of Wyoming in Warranty Deed recorded July 9, 1991 in Book 298PR on page 361 and corrected in Warranty Deed recorded December 8, 1993 in Book 321PR on page 477 of the records of the Lincoln County Clerk. ALSO LESS AND EXCEPT the lands contained in Warranty Deed recorded October 4, 1996 in Book 389PR on page 21'of the records of the Lincoln County Clerk.