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HomeMy WebLinkAbout875553 ' 0301 ' ': :: .: ::::ii RECORDATION REQUESTED BY: WHEN ~ECO~DED MAIL TO: . ~.~] ,~., Lewis/on State Bank . , ~ ~... North Logan Branch ~ r' ',~ '. ~- ~.. 2190 North Main ...... ~.,~ ,.r;. P.O. Box 6097 North Logan, UT 84341 SEND TAX NOTICES TO: ,~~t'~, PAGE MATT NIELSON 1950 EAST 2960 NORTH NORTH LOGAN~ UT 84341 SPACE ABOVE THIS LINE IS FOR REC0RDER'S USE ONLY DEED OF TRUS¥ THIS DEED OF TRUST is dated August 16, 2001, among MATT NIELSON.("Trustor"); Lewiston State Bank, whose address is North Logan Branch, 2190 North Main, P.O. Box 6097, North Logan, UT 84341 (referred to below sometimes as "Lender" and sometimes as "Beneficiary"); and The Land Title Co., whose address is PO BOX 651, JACKSON, WY 83001 (referred to below as "Trustee"). CONVEYANCE AND GRANT. For valuable consideration, Trustor irrevocably grants and conveys to Trustee in Irust, wtth power of sale, for the benefit of Lender as Beneficiary, all of Trus/or's right, title, and interest in and lo the following described real property, together with all existing or subsequently erected or affixed buildings, improvements and fixtures; all easements, rights of way, and appurtenances; all water, water rights and ditch rights (including stock in utilities with ditch or irrigation rights); and all other rights, royaltieS, and profits relating to the real property, including without Iimitafion all minerals, oil, gas, geothermal and similar matters, (the "Real Properly") located in LINCOLN County, State of Wyoming: See SEE EXHIBIT 'A", which is attached to this Deed of Trust and made a part of, this Deed of Trust as if fully set forth herein. The Real Property or its address is commonly known as LARKSPUR cIRCLE, ALPINE, WY. The Real Property tax identification number is 12-3718-20-3-00-033.00. Trustor presently assigns to Lender (also known as Beneficiary in this Deed of Trust) all of Trustor's right, title, and interest in and to all present and future leases of the Property and all Rents from the Property. In addition, Trustor grants to Lender a Uniform Commercial Code security interest in the Personal Property and Rents. THIS DEED OF TRUST, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE (A) PAYMENT OF THE INDEBTEDNESS AND (B) PERFORMANCE OF ANY AND ALL OBLIGATIONS UNDER THE NOTE, THE RELATED DOCUMENTS, AND THIS DEED OF TRUST. THIS gEED OF TRUST IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS: PAYMENT AND PERFORMANCE. Except as' otherwise provided in this Deed of Trust, Trustor shall pay to Lender ail amounts secured by this Deed of Trust as they become due, and shall strictly and in a timely manner perform all of Trustor's obligations under the Note, this Deed of Trust, and the Related Documents. POSSESSION AND MAINTENANCE OF THE PROPERTY. Trustor agrees that Trustor's possession and use of the Property shall be governed by the following provisions: Possession and Use. Until the occurrence of an Event of Default, Trustor may (1) remain in possession and control of the Property; (2) use, operate or manage the Property; and (3) collect the Rents from the Property. The following provisions relate to the use of the Property or to other limitations on the Property. This instrument is a Trust Deed executed in conformity with the Utah Trust Deed Act, UCA 57-1-19, et seq. Duty to Maintain. Trustor shall maintain lhe Property in good condition and promptly perform all repairs, replacements, and maintenance necessary lo preserve its value. Compliance With Environmental Laws, Trustor represents and warrants to Lender that: (I) During the period of Trustor's ownership of the Property, there has been no use, generalion, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance by any person on, under, about or from the Property; (2) Trustor has no knowledge of, or reason to believe that lhere has been, except as previously disclosed to and acknowledged by Lender in writing, (a) any breach or violation of any Environmental Laws, (b) any use, generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance on, under, about or from the Property by any prior owners or occupants of the Property, or (c) any actual or threatened litigation or claims of any kind by any person relating to such matters; and .(3) Except as previously disclosed to and acknowledged by Lender in writing, (a) neither Trustor nor any tenant, contractor, agent or other authorized user of the Property shall use, generate, manufacture, store, treat, dispose of or release any Hazardous Substance on, under, about or from the Property; and (b) any such activity shall be conducted in compliance with all applicable federal, state, and local laws, regulations and ordinances, including without limitation all Environmental Laws. Trustor authorizes Lender and its agents to enter upon the Property to make such inspections and tests, at Trustor's expense, as Lender may deem appropriate to determine compliance of the Property with this sectibn of the Deed of Trust. Any inspections or tesls made by Lender shall be for Lender's purposes only and shall not be construed to create any responsibility or liability on the part of Lender to Trustor or to any other person. The representations and warranties contained herein are based on Trustor's due diligence in investigating the Propert,! for Hazardous Substances. Trus~or hereby (1) releases and such laws; and (2) agrees to indemnify and hold harmless Lender against any and all claims, losses, liabilities, damages, penalties, and expenses which Lender may directly or indirectly sustain or suffer resulting from a breach of this section of the Deed of Trust or as a consequence of any use, generation, manufacture,- storage, disp0s.al, release or threatened release occurring prior to Trustor's ownership or interest' in the Property, whet;ha,' o~' no~ 'the same was o¢ :.~l'iouM ;v./'~,e ~ee;'~ ',,: ,0",, h t,o T,:~Si~:. The p~-e',/;~or'iS of ~h;~ sec~.iOo' Of ti,& Deed o; Tiu~t, ;,ciudi,-~9.the obiigaiiun to indemnify, shall 'survive the payment of.the Indebtednes¢ and'the satisiaction and recor,~/~fi~ance of the lien this Deed ct Trust a:nd shall not be affected by Lender's acquisition of any interest in the Property, whether by foreclosure or 0t erwi~e.' of Nuisance, Wasle. Trustor shall not cause, co0duct or permit any nuisance nor commit, permit, or suffer any stripping of or waste on or'to the Property or any portion of the Property. Without-limiting the generalily of the foregoing, Trustor will not remove, or grant to any other party the right to remove, any timber, minerals (including oil and gas), coal, clay, scoria, soil, gravel or rock products without Lender's prior written consent. Removal of Improvements. Trustor shall not demolish or remove any Improvements from the Real Property without Lender's prior written consent. As a condition to the removal of any Improvements, Lender may require Trustor to make arrangements satisfactory to Lender to replace such Improvements with Improvements of at least equal value. Lender's Right to Enter. Lender and Lender's agents and representatives may enter upon the Real Property at all reasonable times to attend to Lender's interests and to inspect the Real Property for purposes of Trustor's compliance With the terms and conditions of this Deed of Trust. Compliance wilh Governmental Requirements, Trustor shall promptly comply with all. laws, ordinances, and regulations, now or hereafter in effect, of all governmental authorilies applicable to the use or occupancy of the Property. Trustor may contest in good faith any such law; ordinance, or regulation and withhold compliance during any proceeding, including appropriate appeals, so long as Trustor has notified Lender in writing prior to doing so and so long as, in Lender's sole opinion, Lender"s interests in the Property are not jeopardized. Lender may require Trustor fo post adequate security or a surety bond, reasonably satisfactory to Lender, to protect Lender's interest. Duty to Protecl. Trustor agrees neither to abando,~ nor leave unattended the P~operty. Tru§tor shall do all other acts, in addition to those acts set Loan No: 2802179. '~":~ ~ ~":':"~'~ (Continued) 6 .[ ') .... page 2 forth above in this section, which from the character and use of the Property are reasonably necessary to protect and preserve Ihe Property. TAXES AND LIENS. The following prov~sions relating t{~ the taxes and liens on the Property are part of this Deed of Trust: Paymenl. Trustor shall pay when due (and in all events prior to delinquency) all luxes, 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. Tr'ustor shall maintain the Property free of a~l liens having priodty over or equal to the inlerest of ' Lender under this Deed of Trust, except for the lie,,of taxes and assessmenls not due and except as otherwise provided in this Deed of Trust. Right Io Conlesl. TrusSer may withhoM payment of any tax, assessment, or claim in connection with a good faith dispute over the obligation to pay, so long as Lender's interest in the Property is not jeopardized. If a lien arises or is flied as a result.of nonpayment, Trustor shall wilhin (15) days after the lien adses or, if a ~ien is filed, W~th~n fifteen (15) days after Trustor has notice of the fi~ing, secure the discharge of the requested by Lender, deposit with Lender cash or a sufficient corporate surety bond or other security satisfactory to Lender in an amount sufficient lo d~scharge the lien p~us any costs and reasonable attorneys' fees, or other charges that could'accrue as a result of a ~oreclosure or sale under the lien. In any contest, Trustor shal~ defend itself and Lender and sha~l satisfy any adverse judgment before enforcement againsl the Property. Trustor sha~l name Lender as an additional obiigee under any surety bond furnished in the contest proceedings. Evidence of Paymenl. T~ustor shall upon 'demand furnish to Lender satisfactory evMence o~ payment of the taxes or assessments and shal~ authorize the appropriate governmenlsJ official to deliver to Lender at any time a writtep statemenl of the taxes and assessments ag~insl the Property. Notice of Conslruction.' Trustor shall notJ~ Lender at least fifteen (15) days before any work Js commenced, any services are turn shed or any materials are supplied to the Property, if any mechanic's I~en, materialmen's lien, er oth~r lien could be asserted on account of the work,, services, or materialo. Tr;Jstor wi;I upcn request of Lender furnish to' Let,der sdva,';ce ass ]lances sut~sfactory to Ler~der that Truslor can and wJlJ pay the cost of such improvements, PROPERTY DAMAGE INSURANCE. The following pro~/isions relating to insuring the Property are a part of this Deed of Trust. Maintenance of Insurance. Trustor shall procure and maintain policies of fire insurance with standard extended coverage endorsements on a fair value basis for the full insurable value covering all Improvements on the Real Property in an amount sufficient to avoid application of any coinsurance clause, and with a standard mortgagee clause in favor of Lender, together with such other hazard and liability insurance as Lender may reasonably require, Policies shall be written in form, amounts, coverages and basis reasonably acceptable to Lender and issued by a company or companies reasonably acceptable to Lender. Trustor, upon request of Lender, will deliver to Lender from time 1o time the policies or certificates of insurance in form salisfactory to Lender, including stipulations that coverages will not be cancelled or diminished without al least ten (10) days prior written notice to Lender. Each Insurance policy also shall include an endorsement providing that coverage in favor of Lender will not be impaired in any way by any act, omission or default of Trustor or any other person. Should Ihs Real Property be located in an area designated by the Director of the Federal Emergency Management Agency as a special flood hazard area, T'rustor agrees to obtain and maintain Federal Flood Insurance, if available, within 45 days after notice is given by Lender thai the Property is located in a special flood hazard area, for the full unpaid prJncipaJ balance of the loan an~ ar~y 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, aed to maintain such insurance for the term of the loan. Applicallon of Proceeds. Trustor shall promptly ~otify Lender of any loss or damage to the Property. Lender may make proof of loss if Trustor fails to do so within fifteen (15) days of the casualty. Whether or not Lender's security is impaired, Lender may, at Lender's election, receive and retain the proceeds of any insurance and apply the proceeds to the reduction of the indebtedness, payment of any lien affecting the Property, or the restoration and repair of the Property. If Lender elects to apply the proceeds to restoration and repair, Trustor shall repair or replace the damaged or destroyed improvements in a manner satisfactory to Lender. Lender shall, upon satisfactory proof of such expenditure, pay or reimburse Trustor from the proceeds for the reasonable cost of repair or restoration if Trustor is not in default under this Deed of Trust. Any proceeds which have not been disbursed within ~80 d~ys after their receipt and which Lender has not committed to the repair or restoration of the Property shall be used first to pay any amount owing to Lender upder this Deed of Trust, then to pay accrued interest, and the remainder, if any, shall be applied to the principal balance of the Indebtedness. If Lender holds any proceeds after payment in full of the Indebtedness, such proceeds shall be paid to Trustor as Trustor's interests may appear. Unexpired Insurance al Sale. Any unexpired insurance shall inure to' the benefit of, and pass to, the purchaser of the Property covered by this ~ .,f ,r~3[ ~ ~ .,u~,~ ~ ~-'- or other - "- ~ - ~. ¢='= ~,~ ,,ccd u-,der '[he pi'ov~5~oi';u ~1 ~,~ Deed of Trds;, Or ~d ~y [oreclUSu~e sale of such Properly., LENDER'S EXPENDITURES. If Trustor fails :(A) to keep the Property free of all taxes, liens, security interests, encumbrances, and other claims, to provide any required insurance on the Property, or (C) to 'make repairs to the Properly then Lender may do so. If any action or proceeding is commenced that would materially affect Lender's interests in the Property, then Le~der on Trustor's behalf may, but is not required to, take any aclion that Lender believes to be appropriate to protect Lender's interests. All expenses incurred or paid by Lender for such purposes will then bear interest at the rate charged under the Note from the date incurred or paid by Lender to the date of repayment by Trustor. All'such expenses will become a pall of the Indebtedness and, at Lender's option, will (A) be payable on demand; (B) be added to the balance of the Note and be apportioned among and be payable with any installment payments to become due during either (1) tbs term of any applicable insurance policy; or (2) the remaining lerm of the Note; or (C) be treated as a balloon payment which will be due and payable at the Nero'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 1o which Lender may be entitled on account of any default. Any such action by Lender shall not be construed as curing the default so as to bar Lender from any remedy that it otherwise would have had. ' WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of the Properly are a part of this Deed of Trust; Title Truslor wa'rrants that; (a) Trustor holds good and marketable title of record 1o the Property in fee simple, free and clear of all liens and encumbrances other than those set forth in the Real Property description or in any title insurance policy, title report, .or final title opinion issued in favor of, and accepted by, Lender in connection with this Deed of Trust, and (b) Trustor has the full right, power, and authority to execute and deliver this Deed of Trust to Lender. Defense of Tills. Subject to the exception in the 'paragraph above, Trustor warrants and will forever defend Ihs title 1o the Property against the lawful claims of all persons. In the event any actio~'~ or proceeding is commenced that questions Trustor's title or the interest of Trustee or Lender under this Deed of Trust, Trustor shall defend the action at Trustor's expense. Trustor may be the nominal party in such proceeding, but Lender shall be shrilled lo participate in the proceeding 6nd lo be represented in the proceeding by counsel of Lender's own choice, and Trustor will deliver, or cause to be delivered' to Lender such instruments as Lender may request from time to time to permit ~uch participalion. Compliance Wilh Laws. Trustor warrants that the Property and Trustor's use of the Property complies with all existing applicable laws, ordinances, and regulations of governmental authorities. Survival of Promises. All promises, agreements, and statemenls Trustor has made in this Deed of Tr~st shall survive the execution and delivery of ibis Deed o~ T[ust, sna~i be cor~iinuin9 in i~atufe a;~d Shall re?~si~ in full force A;;d effect unlit such ii,ne ~s Tfustor's Indebtedness is paid ir~ fuel. CONDEMNATION. The following provisions relating to condemnAlion proceedings are a part 0f this Deed of Trust: Proceedings. If any proceeding in condemnation is filed, Trustor shall promptly notify Lender in writing, and Trustor shall promptly take such steps ~s may be r~ecessary ~o defend ihu ac~io, ard obtain ihs award. T~ usior m,y be the .uminai par;y' in such proceeding, bul Lerlder shaii be entitled to participate in the Proceeding and to be represented in the proceeding by counsel of ils own choice, and Trustor will deliver or cause be delivered to Lender such instruments and documentation as may be requested by Lender from time to time to permit such participation. Application Cf Net Proceeds. If all or any part of the Property is condemned by eminent domain proceedings or by any proceeding or purchase in lieu of condemnation, Lender may at its election require that all or any portion of the net proceeds of the award be or the repair or restoration of the Property. The net proceeds of the award shall mean Ihs award after payment of all applied to the Indebtedness and attorneys' fees incurred by Trustee or Lender in connection with the condemnation, reasonable costs, expenses, 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 T~es, Fees and Charges. Upon request by Lender, Trustor shall execute such documents in addition to this Deed of Trusl and take whatever other action is requested by Lender to perf~t and continue Lender's lien on the Real Property. Trustor shall reimburse Lender for all taxes, as described below, together with all expenses incurred in recording, peflecting or continuing this Deed of Trust, including without limitation all taxes, fees, documenlary stamps, and other charges for recording or registering this Deed of Trust. Taxes. The following shall constitute taxes to which this section applies: (1) a specific tax upon this type of Deed of Trust or upon all or any part of the Indebtedness secured by this Deed of Trust; (2) a specific tax on Trustor which Trustor is authorized or required to deduct from payments onthe 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 Loan No: 2802179 '~ '-~ ~ '~"-~--~ (Continued) 6 J. {.i Page 3 the Note; and (4) a specific tax on all or any podion of the Indebtedness or on payments of principal and interest made by Trustor. Subsequenl Taxes. If any tax 1o which this section,, aPplies s enacted subsequent to the date of this Deed of Trust, this event shall have the same effect as an Event of Default, and Lender may exerbise any or ali of its available remedies for an Event of Default as provided below unless Trustor either (1) pays the tax before it becomes delinquent, or (2) contests the tax as provided above in the Taxes and Liens section and deposits with Lender cash or a sufficient corporate surety bond or olher 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 Agreemenl. This instrument shall constitute a Security Agreement to the extent any of the Property constitutes fixtures, and Lender shall have all of the righls of a secured party under the L'lniform Commercial Code as amended from time to time. Security Interest. Upon request by Lender, Trustor shall execute financing statements and take whatever other action is requested by Lender to perfect and continue Lender's security interest in tile Personal Property. in addition to recording this Deed of Trust in the real property records, Lender may, at any time and without further authorization from Trustor, file eXecuted counterparts, copies or reproductions of this Deed of Trust as a financing statement. Trustor shall reimburse Lender for all expenses incurred in perfecting (~r continuing this security interest, Upon default, Trustor shall not remove, sever or detach the Personal Properly from the Property. Upon default, Trustor shall assemble any Personal Property not affixed to the Property in a manner and at a place.reasonably convenient to Trustor and Lender and make it available to Lender within three (3) days after receipt of written demand from Lender to the extent permitted by applicable law. Addresses. The rn~iling addresses of Trustor rdebtcr) and ~ ,~nde,' , · · ' by this Deed of Trust may be obtained (each a~ ,renuired b" ~'l~'e-~,;,!,-s-e~e~d--p~r!"--!--?~m-'?.h'ch mf°r.m~tl.°,n concernir,g the securit,? .interest granted '-, · ...... ,.,,,,, ~u,~,,[,~u~u~ ~.,ooe) are as s[a[ea on the first page of this Deed of Trust. FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions relating to further assurances and attorney-in-fact are apa. rt of this Deed of Trust: · Further Assurances. At any time, and from time to time, upon request of Lender, Trustor will make, execute and deliver, or will cause to be made, executed or delivered, to Lender or to Lender's designee, and when requested by Lender, cause to be filed, recorded, refiled, or rerecorded, as the case may be, at such times and in such offices and places as Lender may deem appropriate any and all such mortgages, deeds of trust, secudly deeds, secudly agreements, financing statements, continuation statements, inslruments of' further assurance, certificates, and other documents as may, in the sole opinion of Lender, be necessary or desirable in order to effectuate, complele, perfect, continue, or . preserve (1) Trustor's obligations un'der the Note, this Deed of Trust, and the Related Documents, and (2) the liens and security interests created by this Deed of Trust as first and prior liens on the Properly, whether now owned or hereafter acquired by Trustor. Unless prohibited by law or Lender agrees to the contrary in writing, Trustor shall reimburse Lender for all costs and expenses incurred in connection with the molters referred to in this paragraph. · . Allorney- n-Fact. If Trustor fails to do any of the things referred to in the preceding paragraph, Lender may do so for and in the name of Trustor and at Trustor's expense. For such purposes, Trustor hereby irrevocably appoints Lender as Truslor's attorney-in-fact for the purpose of making, executing, delivering, filing, recording, and doing ~tll other things as may be necessary or desirable, in Lender's sole opinion, to accomplish the mullers referred to in the preceding paragraph. FULL PERFORMANCE. If Trustor pays afl the' I'ndebte'dness when due, and otherwise performs all the obligations imposed upon Trustor under this Deed of Trust, Lender shall execute and deliver to Trustee a request for full reconveyance and shall execute and deliver to Trustor suitable statements of termination of any financing statement on file evidenbing Lender's security interest in the Rents and the Personal Property. Any reconveyance fee required by law shall be paid by Trustor, if permitted by applicable law. EVENTS OF DEFAULT. At Lender's option, Trustor wiIFbe in default under this Deed of Trust If any of the following happen: Payment Default. Trustor fails to make any payment when due under the Indebtedness. Break Other Promises. Trustor breaks any promise made to Lender or fei'Is to perform' promptly at Ihe time and strictly in the manner provided in this Deed of Trust or in any agreement related to thi.~ Deed of Trust." . - · Compliance Default. Failure to comply with any oiher term, Obligation, covenant or conditi~n contained in this Deed of Trust, the Note or'in any of the Related Documents. if such a failure is curable and if Trustor has not been given a notice of a breach of the same provision of this Deed of Trust within the preceding twelve (1'2) months, it may be cured (and no Event of Default will have occurred) if Trustor, after Lender send~ written notice demanding cure of such failure: (a) cures the failure within fifteen (15)'~iays; or (b) if the cure requires more than fifteen (15) days, immediately initiates steps sufficient to cure the failure and thereafter continues and completes all reasonable and necessary steps sufficient produce compliance as soon as reasonably practical. Default on Olher Payments. Failure of Trustor within the time required by this Deed of Trust to make any payment for taxes or insurance, or any other payment necessary to prevent filing of or to effect discharge of any lien. False Statements. Any representation or statemen't made or furnished to Lender by True'for er on Trustor's behalf under this Deed of Trust or the Related Documents is false or misleading in any ~ateria[ respect, either now or at the time made or furnished. · Defecllve Collateralization. This Deed of Trust or any of the Related Documents ceases to be in full force and effect (including failure of any collateral document to create a valid and perfected security interest or lien) at any time and for any reason. Death or Insolvency. The death of Trustor, the insolvency, of Trustor, lhe appointment of a receiver for any part of Trustor's property, any 'assignment for the benefit of creditors, any type ofcreditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Trustor. Taking of the Properly. Any creditor or governmental agency tries to take any of lhe Property or any other of Trustor's property in which Lender has a lien. This includes taking of, garnishing of or levying on Trustor's accounts with Lender. However, if Trustor disputes in good faith whether the claim on which the taking of the Property is based is valid or reasonable, and if Trustor gives Lender written notice of the claim and furnishes Lender wilh monies or a surety bond satisfactory to Lender to satisfy the claim, then this default provis on will not apply. Breach of Other Agreement. Any breach by Trustor under the terms of any other agreement between Trustor and Lender that is not remedied within any grace period provided therein, including without limitation any agreement concerning any indebtedness or other obligation of Trustor to Lender, whether existing now or later. Events Affecllng Guaranlor. Any of the prec;,ding events occurs with respect to any guarantor, endorser, surety, or accommodation party of any of the Ir~debtedness or any guarantor, endorser, surety, or accommodation party dies or becomes incompetent, or revokes or disputes the validity of, o~ !lability under, '&ny Guar-',-n';y. o~.the I,'~deb~adness. in th;a ew;n~, of a 'deaih, Lender, a~ its opiion,' may, out shali not be required to, permit the guarantor's.estate to assume unconditionally the obligations arising under the guaranty in a manner satisfactory to Lender, and, in doing so, cure any Event of Default. .. I,secnrl!y. Lender in good faith believes its. elf.insecure. Rlghl 1o Cure. If such a failure is curable and if Trust0r has not been given a notice of'a breach 'of the same provision of this Deed of Trust within the preceding twelve (12) months, it may be cured (and no Event of Default will have occurred) if Trustor, after Lender Sends written notice demanding cure of such failure: (a) cures the failure within fifteen (15) days; or (b) if the cure requires more than fifteen (15) days, immediately initiates steps sufficient to cure the failure and thereafter continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical. -RIGHTS AND REMEDIES ON DEFAULT. If an Event cf Default occurs under this Deed of Trust, at any time lhereafter, Trustee or Lender may exercise any one or more of the following rights and remedies; Election of Remedies. All of Lender's rights and remedies will be cumulative and may be exercised alone or together. An election by Lender to choose any one remedy will not bar Lender from using any other remedy. If Lender decides to spend money or to perform any of Trustor's obligations under this Deed of Trust, after Trustor's failure to do so, that decision by Lende~ wilt not affect Lender's right to declare Trustor in . default and to exercise Lender's remedies. ACcelerale Indebtedness. Lender shall have th6: right at its option without notice to Trustor to declare the entire Indebtedness immediately due and payable, including any prepayment penalty which Trustor would be required to pay. Foreclosure. With respect to all or any part of the Real Property, the Trustee shall have the right to foreclose by notice and sale, and Lender shall have the right to foreclose by judicial foreclosure, ir1 either case in accordance with and to the full extent provided by applicable law. UCC Remedies. With respect to all or any part o" the Personal Property, Lender shall have all the rights and remedies of a Secured party under ' ;; ~ ~ :..:: ::~, , DEED Loan No: 2802179 __. (Continued) ' 6 ]. '/ Page 4 the Uniform Commercial Code. Collect Renls. Lender shall have the.right, without notice to Trustor to take.possession ~¢ and manage the Property and collect the Renls, including amounts past due and unpaid, and apply the net proceeds, over and above Lender's costs, against the Indebtedness. in fudherance of this right, Lender may reqube any lenant or other user of the Property to make payments of rent or use ~ees directly to Lender. If the Rents are collected by Lender, then Trustor irrevocably designates Lender as Trustor's attorney-in-fact to endorse instruments received in payment thereof in the name of Trustor and to negotiate the same arid collect the proceeds. Payments by tenants or other users to Lender in response to Lender's demand shall satisfy the obligations for which the ~ayments are made, whether or not any proper grounds for the demand exisled. 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 h~ve a receiver appointed protect and preserve the P~perty, to operate the Property preceding foreclosure or sale, and to collect the Rents from the Property and apply the proceeds, over and above the cost of the receivership, against the Indebtedness. Trustor hereby waives any requirement that the receiver be impartial and disinterested as ~o al~ o~ the parties and agrees {hat employment by Lender shal~ not disqualify a person from serving as a receiver. Tenancy at Sufferance, If Trustor remains in possession of the Properly after lhe Property is sold as provided above or Lender othe~ise becomes entitled to possession o~ the Property upon default of Trustor, Trustor 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 Lender. Olher Remedies. Trustee or Lender shall have any other dg~t or remedy provided in this Deed of Trust or the Note or by law. Nolice of Sale. Lender shall give Trustor reasonable notice of the time and place of any public sale of the Personal Property or of the time after which any priv~t~ ~ale or othur intended dispositk~n of thu Personal Prope, ty is tc be made. Reasonab~ notice shall mean notice given al ~east ten (10) days before the time of the sale or disposition. Any sale of Personal Property may be made in conjunction with any sale of the Real. Property. Sale of lhe Property. To the extent permitted by applicable law, Trustor hereby waives any and all rights to have lhe Property marshalled. In exercising its rights and remedies, the Trustee or Lender shall be free to sell all or any part of the Property together or separately, in one sale or by separate sales. Lender shall be entitled to bid at any public sale on all or any portion of the Property. Attorneys' Fees; Expenses. if Lender institutes s. ny 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 m~y adjudge reasonable as attorneys' fees involved, and to the extent not prohibited by law, a~l reasonable expenses Lender incurs that in Lender's opinion are necessary at any lime for the protection of its interest or the enforcement of its riehts shall become a part of the Indebtedness payable on demand and shall bear interest at the Note rate from the date of the expenditure until repaid. Expenses covered by this paragraph include, without limitation, however subject to any limits under applicable law, Lender's reasonable'..altorneys' fees and Lender's legal expenses, whether or not there is a lawsuit, including reasonable attorneys' fees and expenses for bankruptcy proceedings (including efforts to modi~ or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment coil:ecl on services, the cost of searching records, obtaining title reports (including foreclosure reports), surveyors' reports, and appraisal fees, title insurance, and fees for the Trustee, to the extent permitted by applicable law. Trustor also will pay any court costs, in addition to all other sums provided by aw. Righls of Trustee. Trustee shall have all of the rights and duties of Lender as set forth in this section. POWERS AND OBLIGATIONS oF TRUSTEE. The following provisions relating to the powers and obligations of Trustee are part of this Deed of Trust; Powers of Truslee, in addition to all powers of Trustee arising as a matter of law, Trustee shall have the power to take the following aclions with respect to the Properly upon the written request of Lender and Trustor: (a) join in preparing and filing a map or plat of the Real Property, including the dedication of streets or other rights to the public; (b) join in granting any easement or creating any restriction on the Real Property; and (c) join in any subordination ar other agreement affecting this Deed of Trust or the interest of Lender under this Deed of Trust. Obligations lo Nolle. Trustee shall not be Obligated to notify any other party of 8 pending sale under any olher trust deed or lien, or of any action or proceeding in which Trustor, Lender, or Trustee shall be a party, unless the action or proceeding is brought by Trustee. Trustee. Trustee shall meet all qualifications required for Trustee under applicable law. In addition to the rights and remedies set forth above, with respect to all or any part of lhe Property, the Trustee shall have the right lo foreclose by nolice and sale, and Lender will have the' right to foreclose by judicial foreclosure, in either base in accordance with and to the full extent provided by applicable law. Successor Trustee, Lender, at Lender's option, may from time to time appoint a successor Trustee 1o any Trustee appointed under Ibis Deed Trust by an instrument executed and acknowledged by Lender and recorded in the office of the recorder of LINCOLN County, State of Utah. The instrument shall contain, in addition to all other matters required by state law, the names of the original Lender, Trustee, and Trustor, thebook and page where this Deed of Tr~st is recorded, and the name and address of the successor trustee, and the instrument shall be executed and acknowledged by Lender or ils 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 Jaw. This procedure for substitution of Trustee shall govern to the exclusion of all other provisions for substitution. NOTICES. Unless otherwise provided by applicable law, any notice required to be given under this Deed of Trust or required by law, including without limitation any notice of default and any notice of sale sh~ll be given in writing, and shall be effective when actually delivered in accordance with the law or with this Deed of Trust, when actually received by telefacsimile (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, if mailed, when deposited in the United States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Deed of Trust. All copies of notices of foreclosure from the holder of any lien which has priority over this Deed of Trust shall be sent to Lender's address, as shown near the beginning of this Deed of Trust. Notwithstanding any other provision of this Deed of Trust, ail notices given under Utah Code Ann. Section 57-1-26 shall be given as required therein. Any person may change his or her address for notices under this Deed of Trust by giving formal written notice to the other person or persons, specifying that the purpose of the notice is to change the person's address. For notice purposes, Trustor agrees to keep Lender informed at all times of Trustor's current address. Unless otherwise provided by applicable law, if there Is more than one Trustor, any nolice given by Lender to any Trustor is deemed to be nolice given to all Trustors. It will be Trustor'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: Amendmenls. What is written in this Deed of Trust and in the Related Documents is Trustor's entire agreement with Lender concerning the matters covered by this Deed of Trust. To be effective, any change or amendment to this Deed of Trust must be in writing and ~ust be signed by whoever will be bound or obligated by the change or amendment. Caplion Headings, Caption headings in this Deed of Trust are for convenience purposes only and are not to be used to interpret or define the provisions of this Deed of Trust. Merger. There shall be no merger of the interest or estate created by this Deed of Trust with any olher 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 Trus~ will bo ~overi;ed by an& ~ ,:eq)~el~d J,l accooda~tce wl:h /eder~i I~,v'z~nd the laws of I~e Si~4e of Uiab. This Deed of Trust has been accepted by Lender in the State of Utah. No Waiver by Lender. Truslor understands Lender will not give up any of Lender's rights under this Deed of Trust unless Lender does so writing. The Fact that Lender delays or Omits to exercise any right will not mean that Lender has given up that right. If Lender does agree Jn writing to give up one of Lender's rights, that does not mean Trustor will not have to comply with the other provisions of this Deed of Trust. Trustor also understands that if Lender does consent to a request, that does not mean that Trustor will not have 1o get Lender's consent again if the situation happens again. Trustor further understands that just because Lender ~onsents to one or more of Trustor's requests, that does not mean Lender will be required to consent to any of Trustor's future requests. Trustor waives presentment, demand for payment, protest, and notice of dishonor. Trustor waives all rights of exemption from execution or similar law in the Property (including without limitation, the homestead exemption), and Truslor agrees that the rights of Lender in the Property under this Deed of Trust are prior to Trustor's rights while this Deed of Trust remains in effect. Severablllty. if a court finds that any provision of this Deed of Trust is not valid or should not be enforced, that fact by itself will not mean that the rest of this Deed of Trust will not be valid or enforced. Therefore, a court will enforce the rest of the provisions of this Deed of Trust even if a provision of this Deed of Trust may be found to be invalid or unenforceable. Successors and Assigns. Subject to any limitations stated in this Deed of Trust on transfer of Trustor's interest, this Deed of Trust shall be binding upon and inure to the benefit of lhe parties, their successors and assigns. If ownership of the Properly becomes vested in a person other (Continued) than Trustor, Lender, without notice to Trustor, may deaJ with Trustor's successors w~th reference to this Deed of Trust and the Indebledness by way of forbearance or extension without releasing Trustor from the obtigati°ns 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. .~Walver of Homeslead Exemption. Trustor hereby releases and waives at~ rights and benefits of the homestead exemption laws of the State of ~ Utah.as to all indebtedness secured by this Deed o~ Trust. DEFINITIONS, The following words shall have the following meanings when used in this Deed of Trust: Beneficial. The word "Beneficiary" means LewJston State Bank, and its successors and assigns. Borrower. The word "Borrower" means MA~ NIELSON' and a~J other persons and entitles signing the Note. Deed of Trust. The w~rds "Deed of Trust" mean this Deed of Trust among Truster, Lender, and Trustee, and includes without limitation aH assignment and security interest provisions relatin~ to the Personal Property and Rents. Environmenlal Laws. The words "Environmenta! Laws" mean any and a~l State, federal and 10cai slalutes, regulations and ordinances relating to. the protection of human heslth or the environment including without limitation the Comprehensive Environmental Response, Compensation, and Uabiiity Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Supedund Amendments and Reauthorization Act of 1986, Pub. L. Ne. 9~499 ("SARA"), 'the Hazardous Materials Transportation Act, 49 ~.S.C. Section 1801, et seq., the Resource Conservat~o~ and Recovery Act, 42 U.S.C. Section 6901, et seq., or other applicable state or federal laws, rules, 'or. regulations adopted pursuant thereto. Event of Default. The words "Eve~t of D'eta~it" mean sny ct the events of defaui[ set fo~tU ~'n this Deed of 'TrUst in Ihe events of default sectio~ of this Deed of Trust. Guaranty. The word "Guaranty" means the guaranty from guarantor, endorser, surety, or accommodation party to Lender, including without limitation a guaranty of ~ll or pad of the Note. Hazardous Substances. The words "Hazardous Substances" mean materials that, because of their quantity, concentration or physical, chemJca~ or infectious characterislJcs, 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 othe~ise 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 Subs~nces" also includes, without limitation, petroleum and petroleum by-prod~cts or any fraclJon lhereof and asbestos. ,Improvements. The word "~mprovements" means all existing and future improvements, buildings, siructures, 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 amounls, costs and expenses payable under the Nolo or Related DoCuments, toga{her with all renewals of, exlensions of, modifications of, consolidations of ~nd substitutions for the Note or Related Documents and any amounts expended or advanced by Lender to discharge Trustor's obligations or expenses ~ncurred by Trustee or Lender to enforce Trustor's obligations under this Deed of Trust, together with interest on such amounls as provided in this Deed of Trust. Lender. The word "Lender" means Lewiston State Bank, its successors and assigns. The words "successors or assigns" mean any person or company that acquires any interest in the Note. ote. The word "Note" means the promissory note dated August 16, 2001, in the original principal amount of $28,225.00 from rustor to Lender together with a renewals of,'extensions of modifications of, refinancings of, consolidations of, and subsbtutmns f r promissory note or agreemenL ~ . ' ' o the Personal Property. The words "Personal Property" mean all equipment, fixtures, and other articles of personat property now or hereafter owned by Trustor, and now or hereafter attached or affixed to the Real Property; together wilh 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 a~l insurance proceeds and refunds premiums) from any sale or other disposition of the Property. Properly. The word "Property". means collectively the Real Property and the Personal Property. Real Prope~y. The words "Real Property" mean the real property, interests and rights, as further described ~n this Deed of Trust. Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and al~ olher instruments, agreements and documents, whether new or hereafter existing, executed in connection with the Indebtedness. Rents. The word "Rents" means ail present snd future rents, revenues, income, issues, royalties, profits, a~d other benefits derived from the Property. Trustee. The word '~rustee" means The Land Ti~e Co., whose address is PO BOX 651 JACKSON, WY 83001 and any substitute or successor trustees. ~ ' Truslor. The word '~ruslor" means MA~ NIELSON. TRUSTOR ACKNOWLEDGES HAVING READ ~L THE PROVISIONS OF THIS DEED OF TRUST, AND TRUSTOR AGREES TO ITS TERMS. TRUSTOR: INDIVIDUAL ACKNOWLEDGMENT STATE OF _._..~...,"~_~ ~ ) )ss cOuNTY.OF L/~~ - ) On this day' before me, the undersigned Notary Public, personally apP'eared MATT NIELSON, to me known to be the indi~/Idual described in and who executed the Deed of Trust, and acknowledged that he or she signed the Deed of Trust as his or her free and voluntary act and deed, for the uses and purposes therein mentioned. Given under my h, and and official seal this [' ~:::)~ daY of Notary Public in and for the State of ~ ~ - My~ commlssl Loan No,' 2802179 (Continued) ~ J g Page 6 REQUEST. FOR FULL RECONVEYANCE (To be used only when obligations have been paid in full) To: , Trustee The undersigned is the legal owner and holder of all Indebtedness secured by this Deed of Trust. All sums secured by this Deed of Trust have been fully paid and satisfied. You are hereby directed, upon payment to you of any sums owing to you under the terms of this Deed of Trust or pursuant to any applicable statute, to cancel the Note secured by this Deed of Trust (which is delivered to you togelher with this Deed of Trust), and to reconvey, without warranty, to the parties designated by the terms of this Deed of Tr[Jst, the estate now held by you under this Deed of Trust. Please mail the reconveyance and Related Documents to: Date: Beneficiary: By: Ils: EXHIBIT "A" Lot 14 of the Lazy B Subdivision, Lincoln County, Wyoming, according to that plat recorded in the Office of the County Clerk.