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HomeMy WebLinkAbout899613RECORDATION REQUESTED BY: ZIONS FIRST NATIONAL BANK PIONEER BRANCH 460 NORTH MAIN LOGAN, UT 84321 WHEN RECORDED MAIL TO: Zions First National Bank Retail Loan Center - UT RDWG 0853 P.O. Box 30160 West Valley City, UT 84130-0160 RECEIVED LINCOLN COUNTY CLERK 899613 SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY · O01000600004027527034004262004' DEED OF TRUST THIS DEED OF TRUST is dated April 26, 2004, among MARK LUNDAHL ("Grantor"); ZlONS FIRST NATIONAL BANK, whose address is PIONEER BRANCH, 460 NORTH MAIN, LOGAN, UT 84321 (referred to below sometimes as "Lender" and sometimes as "Beneficiary"); and Zions First National Bank, whose address is I South Main Street, Salt Lake City, UT 84111 (re. ferred to below as "Trustee"). CONVEYANCE AND GRANT. For valuable consideration, Grantor conveys to Trustee for the benefit of Lender as Beneficiary all of Grantor's right, title, and interest in and to the following described real property, together with all existing or subsequendy erected or aflixed 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: i~!,' LOT 77 OF STAR VALLEY RANCH PLAT 15, LINCOLN COUNTY, WYOMING AS DESCRIBED ON THE OFFICIAL · PLAT THEREOF The Real Property or its address is commonly knOwn as 57 SNOW FORREST DRIVE, THAYNE, WY 83127. The Real Property tax identification number is 12-3518-19-3-03-030.00 REVOLVING LINE OF CREDIT. Specifically, in ']ddition to the amounts specified in the Indebtedness definition, and without limitation, this Deed of Trust secures a revolving line of credit, Which obligates Lender to make advances to Sorrower so long as Borrower complies with all the terms of the Credit Agreement. Such advances may be made, repaid, and remade from time to time, subject to the limitation that the total outstanding balance owing at any one time, not including finance charges on such balance at a fixed or variable rate or sum as provided in the Credit Agreement, any temporary overages, .other charges, and any amounts expended or advanced as provided in either the Indebtedness paragraph or this paragraph, shall not exceed ti~e Credit Limit as provided in the Credit Agreement. t s the intention of Grantor and Lender that this Deed of Trust secures the balance outstanding under the Credit Agreement from t me to tame from zero up to the Credit Limit as provided in this Deed of Trust and any intermediate balance· . Grantor presently assigns to Lender (also known as Beneficiary in this Deed of Trust) all of Grantor's right, title, and interest in and to all present and future leases of the Property and all Ren{~; from the Property. In addition, Grantor 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 EACH OF GRANTOR'S AGREEMENTS AND OBLIGATIONS UNDER THE CREDIT AGREEMENT, THE RELATED DOCUMENTS, AND THIS DEED OF TRUST. THIS DEED OF TRUST IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS;: GRANTOR'S REPRESENTATIONS AND wARRANTIES. Grantor warrants that: (a) this Deed of Trust is executed at Borrower's request and not at the request of Lender; (b) Grantor has the tull power, right, and authority to enter into this Deed of Trust and to hypothecate the Property; (c) the provisions of this Deed of Trust do not conflict with, or result in a default under any agreement or other instrument binding upon Grantor and do not result in a violation of any law, regulation, court decree or order applicable to Grantor; (d) Grantor has established adequate means of obtaining from Borrower on a continuing basis information about Borrower's financial condition; and (e) Lender has made no representation to Grantor about Borrower (including without limitation the creditworthiness of Borrower). GRANTOR'S WAIVERS. Grantor waives all richts or defenses arising by reason of any "one action" or "anti-deficiency" law, or any other law which may prevent Lender from bringing any action against Grantor, including a claim for deficiency to the extent Lender is otherwise entitled to a claim for deficiency, before or after Lende;"s commencement or completion of any foreclosure action, either judicially or by exercise of a power of sale. PAYMENT AND PERFORMANCE. Except as ot,herwse provided in this Deed of Trust, Borrower shall pay to Lender all Indebtedness secured by this Deed of Trust as it becomes due, and ~Borrower and Grantor shall strictly perform all their respective obligations under the Credit Agreement, this Deed of Trust, and the Related Documents. Loan No: 001000600004027527 DEED OF TRUST (ContinUed) Page 2 POSSESSION AND MAINTENANCE OF THE PROPERTY. Borrower and Grantor agree that Borrower's and Grantor'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, Grantor 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. Duty to Maintain. Grantor shall maintain the Property in good condition and promptly perform all repairs, replacements, and maintenance necessary to preserve its value. Compliance With Environmental LaWs. Grantor represents and .warrants to Lender that: (1) During the period of Grantor'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; abou[i'.or 'from the Properly; (2) Grantor 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 3ctual or threatened litigation or claims of any kind by any person relating to such matters; and (3) Except as previously disclosed to and ac'~nowledged by Lender in writing, (a) neither Grantor nor any tenant, contractor, agent or other authorized user of the Prope. rty shall use, generate, manufacture, store, treat, dispose of or release any Hazardous Substance on, under, about or from the Property; and (b) any ~uch activity shall be conducted in compliance with all applicable federal, state, and local laws, regulations and ordinances, including without limitation all Environmental Laws. Grantor authorizes Lender and its agents to enter upon the Property to make such inspections and test~,, at Grantor'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 sha~l not be construed to create any responsibility or liabili':y on the part of Lender to Grantor or to any other person. The representations and warranties contained herein are based on Grantor's cue diligence in investigating the Property for' Hazardous Substances. Grantor hereby. (1) releases and waives any future claims against Lender for indemnity or contribution in the' event Grantor becomes liable for cleanup or other costs under any such laws; and (2) ag?ees to indemnify and hold harmless Lender against any and all claims, losses, liabilities, damages, penalties, and expenses which Lendsr may ~irectly or indirectly su.~tain 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 Grantor's ownership or interest in the Property, whether or not the same was or should have been known to Grantor. The provisions of this section of the Deed of Trust, including the obligation to indemnify, shall survive the payment of the Indebtedness and t'he 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. Grantor shall not cause, conduct or permit any nuisance nor Commit, permi:, 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, C~rantor will not remove, or grant to any other party the right to remove, any timber, minerals (including oil and gas), coal, clay, scoria, soil, 9ravel or rock products without Lender's prior written consent. Removal of Improvements. Grantor 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 Grantor 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 F:eal Property at all reasonable times to attend to Lender's interests and to inspect the Real Property Ior purposes of Grantor's compliance with the terms and conditions of this Deed of Trust. Compliance with Governmental Requirements. Grantor 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 Grantor may contest in good faith any such law, ordinance, or regulation and withhold compliance during any proceeding, including approl:~iate appeals, so long as Grantor 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 Grantor to post adequate security or a surety bond, reasonably satisfactory to Lender, to protect Lender's interest. Duty to Protect. Grantor agrees neither to abandon or leave unattended the Property. Graptor 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 reas3nably 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 'n 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 cor~tract, or by sale,- assigr~rnent, 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. However, this option shall not be exercised by Lender if such exercise is prohibited by federal law or by Wyoming iaw. TAXES AND LIENS. The following provisions relating to the taxes and liens on the Property are part of this Deed of Trust: Payment. Grantor 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 pay when due all claims for work done on or for services rendered or material furnished to the Property. Grantor 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. Grantor may withhold payment of any tax, assessment, or claim in c;~nnection with a good faith dispute over the obligation to pay, so long as Lender's interest in the Property is not jeopardized. If a lie~ .3rises or is filed as a result of nonpayment, Grantor shall within fifteen (15) days after the lien arises or, if a lien is filed, within fifteen (15) days after Grantor 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 attorneys' fees,'or other charges that could accrue as a result of a foreclosure or sale under the lien. In any contest, Grantor shall defend itself and Lender and shall satisfy any adverse judgment before enforcement against the Property. Grantor shall name Lender as an additional obligee under any surety bond furnished in the contest proceedings. ' Evidence of Payment. Grantor shall upon demand furnish to Lender satislactory evidence of Payment ol~ the taxes or assessments and shall Loan No: 001000600004027527 DEED OF TRUST (Continued) Page 3 authorize the appropriate governmental o'!'f!cial to deliver to Lender at any time a written statement of the taxes and assessments against the Pro perry. Notice of Construction. Grantor shall notify Lender al least fifteen (15) days before any work ~s 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. Grantor will t~pon request of Lender furnish to Lender advance assurances satisfactory to Lender that Grantor can and will pay the cost ol such improvements. PROPERTY DAMAGE INSURANCE. The follow~ng provisions relating to insuring the Property are a part of this Deed of Trust. Maintenance of Insurance. Grantor shall procure and maintain policies of fire insurance with standard extended coverage endorsements on a replacement basis for the full insurable v,~lue covering a Improvements on the Real Property in an amount sufficient to avoid application of any coinsurance clause, and with a staiqdard 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. Grantor, upon request of Lender, will deliver to Lender from time to time the policies or certificates of insurance in form satisfactory to Lender, including st pulations that coverages will not be cancelled or diminished without at least ten (10) days iprior 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 Grantor or any other person. Should tire Real Property be located in an area desig~ated by the Director ol the Federal Emergency Management Agency as a special flood hazard area, Grantor agrees to obtain and maintai, n Federal Flood Insurance, il available, within 45 days alter notice is given by Lender that the Property is located in a special flood hazard area, 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 ol the loan. Application of Proceeds. Grantor shall pi:omptly notify Lender of any loss or damage to the Property. Lender may make proof of loss if Gray, tot. fails to 'do so within' fifteen (1'§)~ ;:lays"of'th~ casualty. :' Whether or riot Lender's ~ecurity is impaired, Lender may at' Eender'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, Grantor shall repair or replace the damaged or destroyed Improvements in a manner satisfactory to Lender. Lender shall, upon satisfactory proolof such expenditure, pay or reimburse Grantor from the proceeds for the reasonable cost of repair or restoration if Grantor 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 t'he 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 Grantor as Grantor's interests may appear. Compliance with Existing Indebtedness. During the period in which any Existing Indebtedness described below is in effect, compliance with the insurance provisions contained in the instrument evidencing such Existing Indebtedness shall constitute compliance with the insurance provisions under this Deed of Trust, to the extent compliance with the terms' of this Deed of Trust would constitute a duplication of insurance requirement. If any proceeds ,'rom the insurance become payable on loss, the provisions in this Deed of Trust for division of proceeds shall apply only to that portion o:f the proceeds'not payable to the holder of the Existing Indebtedness. LENDER'S EXPENDITURES. If Grantor 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 P,'operty, (C) to make repairs to the Property or to comply with any obligation to maintain Existing Indebtedness in good standing as required be,oW, then Lender may do so. Il any action or proceeding is commenced that would materially affect Lender's interests in the Property, then Lender on Grantor's behalf may, but is not required to, take any action that Lender believes to be appropriate to protect Lender's interests. Ail expenses incurred or paid by Lender for such purposes will then bear interest at the rate charged under the Credit Agreement from' the date i.ncu'rred or paid by Lender to the date of repayment by Grantor. All such expenses will become a part of the Indebtedness and, at Lender's option, w~ll (A) be payable on demand; (B) be added to the balance of the Credit Agreement and be apportioned among and be payable with any installment payments to become due during either (1) the term of any applicable insurance policy; or (2) the remaining term of the Credit Agreement; or (C) be treated as a balloon payment which will be due and payable at the Credit Agreement'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 Le'~der from any remedy that it otherwise would have had. WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of the Property a~e a part of this Deed of Trust: Title. Grantor warrants that: (a) Grantor holds good and marketable title of record to the Prop'erty in fee simple, free and clear of all liens and encumbrances other than those set forth in the Real Property description or in the Existing Indebtedness section below or in any title insurance policy, title report, 'or final-title oF;inion issued in favor of, and accepted by; Lender in connection with this Deed of Trust, and {b) Grantor has the full right, power, and autl~odty to execute and deliver this Deed of Trust to Lender. ' Defense of Title. Subject to thl~ exception in the paragraph above, Grantor 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 Grantor's title or the interest of Trustee or Lender under this Deed of Trust, Grantor shall defend the action at Grantor's expense. Grantor may be the nominal party in such proceeding, but Lender shall be e~,ti.ded to participate in the proceeding and to be represented in the proceeding by counsel of Lender's own choice, and Grantor will deliver, or cause to be delivered, to Lender such instruments as Lender may requost from time to time to permit such participation. Compliance With Laws. Grantor warrant~ that the Property and Grantor's use of the Property complies with all existing applicable laws, ordinances, and regulations of governmenta) authorities. Survival o~ Promises. All promises, agreements and Statements Grantor has made in this Deed of Trust shall survive the execution and delivery of this Deed of Trust, shall be c;ontinuing in nature and shall remain in full force and effect until such time as Borrower's Indebtedness is paid in full. EXISTING INDEBTEDNESS. The following prbvisions concerning .Existing Indebtedness are a p~rt of this Deed of Trust: ': Existing Lien. The lien of this Deed of Trust securing the Indebtedness may be secondary and inferior to an existing lien. Grantor expressly covenants and agrees to pay, or see to the payment of, the Existing Indebtedness and to prevent any default on such indebtedness, any default under the instruments evidencing ,~iuph indebtedness, or any default under any security documents for such indebtedness. Loan No: 001000600004027527 DEED OF TRUST (Continued) Page No Modification. Grantor shall not enter into any agreement with the holder of any mortgage, deed of trust, or other security agreement which has priority over this Deed of Trust by which that agreement is modified, amended, extended, or renewed without the prior written consent of Lender. Grantor shall neither request nor accept any future advances under any such security agreement without the prior written consent of Lender. CONDEMNATION. The following provisions relating to condemnation proceedings are a part of this Deed of Trust: Proceedings. If any proceeding in condemnation is filed, Grantor shall promptly notify Lender in writing, and Grantor shall promptly take such steps as may be necessary to defend the action and obtain the award. Grantor may be the nominal party in such proceeding, but Lender Shall be entitled to participate in the proceeding and to be represented in :~he proceeding by counsel of its own choice, and Grantor 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 eminer~t 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, Grantor 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. Grantor 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, doc~Jmentary stamps, and other charges for reco~d;'ng or registering this Deed of Trust. Taxes. The following'.shall cnnsl:itut~ taxes to which this section applies: (1). a Spe'cific t~x..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 Borro~ve~ which Borrower 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 Credit Agreement; and (4) a specific tax on all or ~n,y portion of the indebtedness or on payments of principal and interest made by Borrower. Subsequent Taxes. If any tax to which this section applies is enacted subsequent to the da'.:e 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 Grantor 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: Security Agreement. This instrument shall constitute a Security Agreement'to the extent iany of the Property constitutes fixtures, and Lender shall have all of the rights of a secured party under the Uniform Commercial Code as a:,-nended from time to time. Security Interest. Upon request by Lender, Grantor shall take whatever action is requestefJ 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 Grantor, file executed counterparts, copies or reproductions of this Deed of Trust as a financing statement. Grantor shall reimburse Lender for all expenses incurred in perfecting or continuing this security interest. Upon default, Grantor shall not remove, sever or detach the Personal Property from the Property. Upon default, Grantor shall assemble any Personal Property not affixed to the Property in a manner and at a place reasonably convenient to Grantor and Lend~;r 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 Grantor (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 Commercia' Code) are as stated on the first page of this Deed of Trust. FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions relating to further asst~rances 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, Grantor will make, execute and deliver, or will cause to be made, executed or delivered, to Lender or to Lender's designee, and when requested b'/ Lender, cause to be filed, recorded, rallied, or rerecorded, as the case may be, at such times and. in such offices and places as Lender may Ceem appropriate, any and all such mortgages, deeds of trust, security deeds, security agreements, financing statements, continuation sfatements, 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) Borrower's and Grantor's obligations under the Credit Agreement 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 Grantor. Unless prohibited by law or Lender agrees to ~he contrary in writing, Grantor shall reimburse Lender for all costs and expenses incurred in connection with the matters referred to in th!s p~ ragraph. Attorney-in-Fact. If Grantor fails to do any of the things referred to in the preceding paragraph, Lender may do so for and in the name of Grantor and at Grantor's expense. For such purposes, Grantor hereby irrevocably appoint,,. Lender as Grantor's attorney-in-fact for the purpose of making, executing, delivering, filing, recording, and doing all other things as ma,/ be necessary or desirable, in Lender's sole opinion, to accomplish the matters referred to in the preceding paragraph. FULL PERFORMANCE. If Borrower pays all the Indebtedness when due, terminates the credit line account, and otherwise performs all the obligations imposed upon Grantor under this Deed of Trust, Lender shall execute and deliver to 'l:'r[stee a request for full reconveyance and shall execute and deliver to Grantor 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 Grantor, if permitted by applicable law. EVENTS OF DEFAULT. Grantor will be in default under this Deed of Trust if any of the following happen: (A) Grantor commits fraud or makes a material misrepresentation at any time in cbnnection with the Credit Agreement. This cani include, for example, a false statement about BorroWer's or Grantor's income, assets, liabilities, or any other aspects of Borrower's or Grantor's financial condition. (B) Borrower does not meet t'he repayment terms of the Credit Agreement. (C) Grantor's action or inaction adversel~ '3ffects the collateral or Lender's rights in the Loan No: 001000600004027527 DEED OF TRUST (Continued) Page 5 collateral. This can include, for example, failur'e to maintain required insurance, waste or destructive use of the dWelling, failure to pay taxes, death of all persons liable on the account; tra~mfer of title or sale of the dwelling, creation of a senior lien on the dwelling without Lender's permission, fbreclosure by the holder of another~ llen, or the use of funds or the dwelling for prohibited purposes. RIGHTS AND REMEDIES ON DEFAULT. If an Eyent. of Default occurs under this Deed of Trust, at any time thereafter, Trustee or Lender may exercise any one or more of the following rightslr and remedies: Election of Remedies. All of Lender's d'g~ts~ a~d remedies will be cumulative and 'ma~/ be exercised alone er together. = An election by Lender to (:hoose any one remedy will not ~ar Lende('fr0~n U~ ng any other remedy. If Lender decides to spend money or to perf'orm'any of Grantor's obligations under this Deed of Trbst., after Grantor's failure to do so, that decision by Lender will not aHect Lender's right to declare Grantor in default and to exercise Liepder's remedies. Accelerate Indebtedness. Lender shall hav:eithe right at its option without notice to Borrower or Grantor to declare the entire Indebtedness immediately due and payable. ' ' · 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 an~' 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 Borrower or Grantor to take possession of and manage the Property and collect the Rents including amounts pas,t ;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 Grantor irrevocably designates Lerlder as Grantor's attorney-in-fact to end~_rse insti'uments re'ceived in P~y~hent th~re0f:'~r~ ~e name ~)f Gtanto~ and :~0 ne§otiat~ 'the Sam~' a'~d' b0'll~c't the p'r0c'eed'S: Payn~ents by tenants or other users to Lender in resp0n.~e 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. The receiver may serve without bond if permitted by law. Lender's righ~ tc the appointment Of a receiver shall exist whether or not the apparent value Of the Property exceeds the Indebtedness by a substantial ~amount. Employment by Lender shall not disqualify a person from serving as a receiver. Tenancy at Sufferance. If Grantor 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 Grantor, Grantor shall 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 Eender. Other Remedies. Trustee or Lender·shall have any other right or remedy provided in this Deed of Trust or the Credit Agreement or by law. Notice of Sale. Lender shall give Grantor 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 tim~ 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'perr~qitted by applicable law, Borrower and Grantor hereby waives any and all rights to have the Property marshalled. In exercising its right§ ~,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 sac!es. Lender shall be entided to bid at any public sale on all or any portion of the Property. Attorneys' Feesi Expenses. If Lender instit~utes 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 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 th~. enforcement of its rights shall become a part of the Indebtedness payable on demand and shall bear interest at the Credit Agreement rate '[rom the date of the expenditure until repaid. Expenses covered by this paragraph include, without limitation, however subject to any Ilimits. under applicable law, Lender's attorneys' fees and Lender's legal expenses whether or not there is a lawsuit, including attorneyS' fee~ ~nd. expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appe.als, and a~i./anti~ pated post-judgment collection services, the cost of searching records, obtaining title reports (including foreclosure report·s), surveyors' reports, and appraisal fees, title insurance, and fees for the Trustee, to the extent permitted by applicable law. Grantor also will pay any c!3urt costs, in addition to all other sums provided by law. Rights of Trustee. Trustee shall have all ofl t~e rights and duties of Lender as set forth in this section. POWERS AND OBLIGATIONS OF TRUSTEE. Ti~e, ifollowing provisions relating to the powers and obligations of Trustee are part of this Deed of Trust: Powers of Trustee. In addition to all powe,s 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 Grantor: (a) join in preparing and filing a map or plat of the Real Property, including the dedication of ,~treets 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 notil'y any other party of a pending sale under any other trust deed or lien; or of any action or proceeding in which Grantor, Lender, or Trustee sha. II 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 pa(t of the ?roperty, 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 opOon, may from time to time appoint a successor Tr'ustee to any Trustee appointed under this Loan No: 0010{~0600004027527 DEED OF TRUST (Continued) .... G~ 9 Page 6 Deed of Trust by an instrument executed and acknowledged by Lender and recorded in the clffic~ of the recorder of LINCOLN County, State of Wyoming. The instrument shall contain, in addition to all other matters required by state"law, the names of the original Lender, Trustee, and Grantor, 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 iow. This procedure fo} substitution of Trustee shall govern to the exclusion of all other provisions for ~;ubstitution. NOTICES. Any notice required to be given under this Deed, of Trust, including without limitatic, n any notice of default and any notice of sale shall be given in writing, and shall be effective when actually delivered, 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 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. Any person may change his or her address for notices under this Deed 3f 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, Grantor agrees to keep Lender informed at all times of Grantor's current address. Unless otherwise provided or required by law, if there is more than one Grantor, any notice given by Lender to any Grantor is deemed to be notice given to all Grantors. It will be.Grantor's responsibility to tell the others of the notice from Lender. 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 Graf. tot'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. Caption Headings. Caption headings i'n this Deed of Trust are for convenience purposes on-y and are not to be used to interpret or define the provisions o'f this :Deed of Trust. Merger. There shall be no merger of the interest or estate created by this Deed of Trust witL~ 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 and interpreted in accordance with,federa law and the laws of the State of Utah, except and only to the extent of procedural matters related to the perfection and enforcement of Lender's rights and remedies against the Property, which will be governed by the laws of the State of Wyoming. However, if there ever is a question about whether any provision of this Deed of Trust is valid or enforceable, the .provision that is questioned will be governed b~, whichever state or federal law would find the provision to be valid and enforceable. The loan transaction which is evidenced by the Credit Agreement and this Deed of Trust has been applied for, considered, approved and made, and all necessary loan documents have been accepted by Lender in the State of Utah. Choice of Venue. If there is a lawsuit, Grantor agrees upon Lender's request to submit to the jurisdiction of the courts of SALT LAKE County, State of Utah. Joint and Several Liability. All obligations of Borrower and Grantor under this Deed of Trust shall be joint and several, and all references to Grantor shall mean each and every Grantor, and all references to Borrower shall mean each and every Borrower. This means that each Borrower and Grantor signing below is responsible for all obligations in this Deed of Trust. No Waiver by Lender. Grantor understands Lender will not give up any of Lender's rights ureter 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 Lende'.r has given up that right. If Lender does agree in writing to give up one of Lender's rights, that does not mean Grantor will not have to comply with the other provisions of this Deed of Trust. Grantor also understands that if Lender does consent to a request, that does not mean that Grantor will not have to get Lender's consent again if the situation happens again. Grantor further understands that just because Lender consents to one or more of Grantor's requests, that does not mean Lender will be required to consent to any of Grantor's future requests. Grantor waives presentment, demand for payment, protest, and notice of dishonor. Grantor waives all rights of exemption from execution or similar law in the Property, and Grantor agrees that the rights of Lender in the Property under this Deed of Trust are prior to Grantor's rights while this Deed of Trust remains in effect. Severability. If a cou~t 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 T~ust will not be valid or enforced. Therefore, a court will 6. nforce 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 Grantor's interest, this Deed of Trust shall be binding upon and inure to the benefit of the parties, their successors and assigns. If ownership o[ the Property becomes vested in a person other than Grantor, Lender, 'without notice to Grantor, may deal with Gra,~tor's successors, with refsrence to this Deed of Trust and the Indebtedness by way of forbearance or extension without releasing Grantor from the oblioat~ions 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. Waiver of Homestead Exemption. Grantor hereby releases and waives all rights and benefits of the homestead exemption laws of the State of Wyoming 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 ,rrust: Beneficiary. The word "Beneficiary" means ZIONS FIRST NATIONAL BANK, and its succe~s,)rs and assigns. Borrower. The word "Borrowe'r" means MARK LUNDAHL and NATALIE A LUNDAHL and includes all co-signers and co-makers signing the Credit Agreement, Credit Agreement. The words "Credit Agreement" mean the credit agreement date;f April 26, 2004, with credit limit of ~ 140,000.00 from Borrower to Lender, together with all renewals of, extensions of, mod'ifications of, refinancings of, consolidations of, and substitutions for the promissory note or agreement, NOTICE TO GRANTOR: THE C~EDIT AGREEMENT CONTAINS A VARIABLE INTEREST RATE. Deed of Trust. The words "Deed of Trust" mean this Deed of Trust among Grantor, Lender, 'and Trustee. and includes without limitation all assignment and security interdst provisions relating to the Personal Property and Rents. Loan No: 001000600004027527 DEED OF TRUST (Continued) 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, etseq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., or other applicable state Or federal laws,'rul(~s, or regulations adopted pursuant thereto. ~ ': : ~: '' ' Event Of Default: The words "Event of Default'~ mean any of the events of default Se~ i~orth in this Deed of Trust in the events of default section of this Deed of Trust. '. Existing Indebtedness. The words "Exis'ting Indebtedness" mean the indebtedness described in the Existing Liens provision of this Deed of Trust. Grantor. The word "Grantor" mea'~s MARK LUNDAHL. 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:.exp~nses 'payable' under the credit Agreement or Related Documents, together with ell renewals of, extensions o1', modifications of, cons(~l'idati(Jn~ of a'nd sGbstitUti0ns for the Credit Agreement or Related Documents and any amounts expended or advanced by Lender to discharge Grantor's obligations or expenses incurred by Trustee or Lender to enforce Grantor'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 ZIONS FIRST NATIONAL BANK, its successors and assigns. The words "successors or assigns" mean any person or company that acquires any interest in the Credit Agreement. Personal Property. The words "Personal Property" mean all equipment, fixtures, and other articles of personal property now or hereafter owned by Grantor, 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 leal 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, guarant es, security agreements, mortgages, deeds of trust, security deeds, collateral .mortgages, and all other instruments, agreements and documents; whether nowor he~'eafter existing, executed in connection with the Indebtedness. Rents. The word "Rents" means all presedt and future rents, revenues, income, issues, royalties, profits, and other benefits derived from the Property. Trustee. The word "Trustee" means Zion'~ First National Bank, whose address is 1 South Main Street, Salt Lake City, UT 84111 and any substitute or successor trustees. GRANTOR ACKNOWLEDGES HAVING READ A',LL THE PROVISIONS OF THIS DEED OF TRUST, AND GRANTOR AGREES TO ITS TERMS. MARK LUNDARL ' DEED OF TRUST ~ Loan No: 001000600004027527 (Continued) {,~-/~j:.,~~...~ G 9 I Page 8 INDIVIDUAL ACKNOWLEDGMENT STATE OF ) COUNTY OF } On this day before me, the undersigned Notary Public, personally appeared MARK LUNDAHL, to me known to be the individual described in and who executed the Deed of Trust, and acknowledged that he or she signed the De.~.d~Trust as his or her free and voluntary act and deed, for the uses and purposes therein mentioned. G'ven under my hand and official ,eal/~is ~-~ dayof ~ ,20. ~)//~'¢~. My commisslon expireF REQU ES~'-F0 ~'"FOL~"R~CONV EYAN C E (To be used only when obligations have been paid in 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 paymentto you of any sums owing to you under the terms of this Deed of Trust or pursuant to any applicable statute, to cancel the Credit Agreement 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 Deedof Trust, Please mailthereconveyance and Related Documgntsto: Date: Beneficiary: By: Its: