Deed of Trust
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Your Deed of Trust
Deed of Trust
THIS DEED OF TRUST (the "Trust") dated this _________________________
BETWEEN:
_________________________ of
_________________________
(the "Trustor")
OF THE FIRST PART
- AND -
_________________________ of
_________________________
(the "Beneficiary")
OF THE SECOND PART
- AND -
_________________________ of
_________________________
(the "Trustee")
OF THE THIRD PART
Background
A.
The Trustor, being registered as owner of the estate in
the following described property (the "Property") located at
________________________________________
in
____________________
, State of
Albama
, United States with the following legal
description:
___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
B. Any buildings or structures on the
Property and anything now or later attached or fixed to the
buildings or the Property including additions, alterations and
improvements located on, above or below the surface of the
Property are covered by this Trust. However, no additions,
alterations or improvements will be made by the Trustor without
the Beneficiary's prior written consent. Any addition,
alteration or improvement will be subject to all recorded
easements, rights of way, conditions, encumbrances and
limitations, and to all applicable building and use
restrictions, zoning laws and ordinances, if any, affecting the
Property.
IN CONSIDERATION
OF the sum lent to the Trustor by the Beneficiary, in
the amount of $
_______________
U.S. DOLLARS (the "Principal Amount") the receipt of
which the Trustor does hereby acknowledges itself indebted, the
parties to this Trust agree as follows:
-
U.C.C.
Security Agreement
- It is agreed that if
any of the Property herein trusted is of a nature so that a
security interest in the Property can be perfected under the
Uniform Commercial Code, this instrument will constitute a
Security Agreement and Trustor agrees to join with the
Beneficiary in the execution of any financing statements and
to execute any and all other instruments that will be
required for the perfection or renewal of such security
interest under the Uniform Commercial Code.
-
Governing
Law
- This Trust will be
governed by both the law of Alabama and any applicable
federal law ("Applicable Law"). All rights and
obligations contained in this Trust are subject to any
requirements and limitations of Applicable Law.
-
MATTERS RELATING TO PAYMENT
-
Promise
to Pay
- The Trustor, for
value received, promises to pay to the Beneficiary, on
demand, the Principal Amount, interest and all fees and
costs on the terms set out in this Trust or in any
amendment, extension or renewal of the Trust and any
additional amounts secured by this Trust on the terms
elsewhere provided for such debts and liabilities.
-
Interest
-
The Trustor agrees to pay the Principal Amount with interest
before and after maturity and before and after default at
the rate of
_______________
percent calculated per annum and compounding
annually (the "Interest Rate"). The Interest Rate will be
calculated from the date this Trust begins (the "Interest
Adjustment Date") and accrues until the whole of the
Principal Amount is paid. The Loan will be repaid on the
following terms:
- the
Principal and interest will be repaid in consecutive
installments of $
_______________
;
- the Interest
Adjustment Date for this Trust is
______________________________; and
- the balance,
if any, of the Principal Amount and any interest
thereon and any other moneys owing under this Trust
will be due and payable on
_______________
(the "Maturity Date").
- the
Principal and interest will be repaid in consecutive
installments of $
_______________
;
-
Place
of Payment
- The Trustor will
make monthly payments at
________________________________________ or at a location
later specified by the Beneficiary.
-
Funds
for Escrow Items
- The Trustor will pay
to the Beneficiary, on the day periodic payments are due
under this Trust, a sum (the "Funds") to provide for payment
of (a) all taxes, assessments and other charges against the
Property; (b) ground rents or other lease payments on the
Property; and (c) premiums for any and all insurance
required by Beneficiary.
- If there is a
surplus of Funds held in escrow, the Beneficiary will
provide the Trustor with the excess funds in accordance with
RESPA. If there is a shortage of Funds held in escrow,
the Beneficiary will notify the Trustor as required by the
RESPA, and the Trustor will pay to the Beneficiary the
amount necessary to make up the shortage in accordance with
the RESPA.
- The Trustor will
notify the Beneficiary of all of amounts to be paid under
this Section. At the Beneficiary's discretion, the Trustor
will provide receipts of such payments to the Beneficiary.
If the Trustor fails to make timely payments the Beneficiary
can, at its discretion, make any payments for past due
Escrow Items and the Trustor will be obligated to repay to
the Beneficiary any such amount. The Beneficiary may waive
the Trustor's obligation to pay for any or all Escrow items
to the Beneficiary through written notice. If such waiver
occurs, the Trustor is responsible to pay the amounts due
for any Escrow Items. The Beneficiary can at any time revoke
the waiver of any or all Escrow Item payments by written
notice to the Trustor, and upon such revocation, the Trustor
will pay to the Beneficiary all Funds, and in such amounts,
that are then required under this Section.
- The Beneficiary will
collect and hold the Funds in accordance with the Real
Estate Settlement Procedures Act (the "RESPA"). The
Beneficiary will reasonably estimate the amount of Funds due
in accordance with Applicable Law.
- If there is a
surplus of Funds held in escrow, the Beneficiary will
provide the Trustor with the excess funds in accordance with
RESPA. If there is a shortage of Funds held in escrow,
the Beneficiary will notify the Trustor as required by the
RESPA, and the Trustor will pay to the Beneficiary the
amount necessary to make up the shortage in accordance with
the RESPA.
-
Obligation
to Pay without Set-off or Delay
- The Trustor agrees
to pay all amounts payable pursuant to this Trust and all
additional amounts secured by this Trust without abatement,
set-off or counterclaim. Should the Trustor make any claim
against the Beneficiary either initially or by way of
abatement, set-off or counterclaim, the Trustor agrees that
any such claim will not diminish or delay his obligations to
make the payments as provided in this Trust.
-
Application
of Payments and Interest after Default
- All monthly
payments received by the Beneficiary will first be applied
in payment of the interest calculated at the Interest Rate,
and second in payment of the Principal Amount. However, if
the Trustor is in default, then the Beneficiary will apply
any payments received during this period as the Beneficiary
chooses. If the Trustor is in default in payment of any
amount including interest, interest will be payable on the
interest and other arrears at the Interest Rate compounded
monthly.
-
Discharge
- When the Trustor
pays the Principal Amount, interest and all the other
amounts secured by this Trust in full and notifies the
Beneficiary in writing, the Beneficiary will execute a Deed
or Reconveyance and record it to clear the title to the
Property. The Trustor will give the Beneficiary a reasonable
time after payment in which to prepare and issue the Deed of
Reconveyance.
-
Covenants
and Warranties
-
The Trustor warrants and agrees that:
- the Trustor
has good title to the Property;
- the Trustor
has the authority to trust the Property;
- on default,
the Beneficiary will have quiet possession of the
Property;
- the Property
is free from all encumbrances;
- the Trustor
will execute further assurance of the Property as
will be required; and
- the Trustor
has not done any act to encumber the Property.
- the Trustor
has good title to the Property;
-
The Trustee warrants and agrees that:
- Trustee will
preserve the title to the Property and the validity
and priority of this Trust and will forever warrant
and defend the same for the Beneficiary against the
claims of all persons.
- Trustee will
preserve the title to the Property and the validity
and priority of this Trust and will forever warrant
and defend the same for the Beneficiary against the
claims of all persons.
-
Additional
Covenants of Leasehold Property
- If the Trustor has
a leasehold interest in the Property, the Trust will not
apply to the last day of the term of the Lease or the term
of any renewal or replacement of the Lease. The Trustor will
hold the last day of each term in trust for the Beneficiary
and transfer it on his direction to any person acquiring
such term.
-
If the Trustor has a leasehold interest in the Property, the
Trustor warrants and agrees that:
- the Trustor
has good and marketable leasehold title to the
Property;
- the Trustor
has a good, valid and subsisting lease (the "Lease")
of the Property and has given to the Beneficiary and
Trustee a full and complete copy of that Lease;
- all rents
and other monies payable under the Lease have been
paid and the Trustor are not otherwise in default
under any obligation set out in the Lease;
- the Trustor
does not require the consent of the landlord to
trust his leasehold interest in the Property, or if
required, have already obtained the consent of the
landlord to this Trust;
- the Trustor
will pay rent and perform and observe all other
obligations under the Lease;
- the Trustor
will not encumber or surrender the Lease or cause or
allow it to be terminated or forfeited;
- the Trustor
will not agree to any amendment of the Lease without
first obtaining the Beneficiary's written consent;
and;
- the Trustor
will renew the Lease as necessary to protect the
Beneficiary's interest and the Trust will extend to
any such renewal.
- the Trustor
has good and marketable leasehold title to the
Property;
-
Fixtures
and Additions
- The Trustor agrees
that the Property includes all property of any kind that is
now or at any time in the future attached or fixed to the
land or buildings or placed on and used in connection with
them, as well as all alterations, additions and improvements
to the buildings.
-
Payment
of Taxes and Other Encumbrances
- The Trustor will
pay all taxes and other rates levied on the Property and all
accounts for utilities supplied to the Property and all
charges, trusts, liens and other encumbrances on the
Property when they are due and comply with his other
obligations under them. Upon the Beneficiary's request, the
Trustor will immediately give receipts showing that the
taxes and other accounts have been paid.
-
No
Sale Without Consent
- The Trustee will
not sell, transfer, lease or otherwise dispose of all or any
part of the Property or any interest in the Property, or if
a corporation, permit a change in control, without the
Trustor's and Beneficiary's prior written approval and if
approved, without such approved purchaser, transferee or
lessee entering an assumption agreement in form satisfactory
to the Beneficiary. Acceptance of any payments from a
purchaser, transferee or lessee or after a change in control
not approved in writing, will not constitute an approval or
waiver by the Beneficiary.
-
Property
Insurance
- Trustor will insure
in the Beneficiary's favor all buildings on the Property
that are the subject of the Trust. The insurance will
include protection against damage by fire and other perils
including "extended peril coverage" and any other perils
that the Beneficiary requests. The insurance must cover
replacement costs of any buildings on the Property in US
dollars. The Trustor will choose the insurance company
subject to the Beneficiary's right to disapprove. The
insurance policies will include a standard trust clause
stating that any loss is payable to the Beneficiary. This
Trust will be enough proof for any insurance company to pay
any claims to the Beneficiary and to accept instructions
from the Beneficiary regarding any insurance claims.
-
The Trustor will provide the following at the request of the
Beneficiary:
- a copy of
the insurance policy;
- receipts of
all paid insurance premiums; and
- renewal
notices and evidence of renewal completion.
- a copy of
the insurance policy;
- In the event of
loss, the Trustor will provide prompt notice to the
Beneficiary and the insurance carrier. The Trustor will
provide the Beneficiary with proof of all claims at the
Trustor's own expense and do all necessary acts to enable
the Trustor to obtain all insurance proceeds from the claim.
The insurance proceeds, in whole or in part, will be applied
to the restoration and repair of the Property, if the
restoration and repair is economically feasible. If the
restoration and repair is not economically feasible, the
insurance proceeds will be applied to the remainder of the
Trust, whether or not the balance of the Trust is then due.
Any remaining funds from the insurance claim will be paid to
the Trustor.
-
Repair,
Vacancy and Maintenance of the Property
- The Trustor will
maintain the Property in good order, condition and repair
and will promptly make all necessary repairs, replacements,
and improvements. The Trustor will not allow the Property to
become or remain vacant without the written consent of the
Beneficiary. The Trustor will not commit waste and will not
remove, demolish or materially alter the Property or any
part of it without prior written consent from the
Beneficiary. The Beneficiary may, whenever necessary, enter
upon and inspect the Property. If the Trustor, or anyone
claiming under the Trustor, neglect to keep the Property in
good condition and repair, or commit any act of waste on the
Property, or do anything by which the value of the Property
is diminished, as to all of which the Beneficiary will be
sole judge, the Beneficiary may (but is not obliged to)
enter the Property and effect such repairs or work as it
considers necessary.
-
Environmental
Hazards
- The Trustor will
not use, store, release, deposit, recycle, or permit the
presence of hazardous substances on the Property, generally
accepted items for residential use excepted, which includes
but not limited to asbestos, PCBs, radioactive materials,
gasoline, kerosene, or other flammable petroleum products
(the "Hazardous Substances"). The Trustor is also
prohibited from performing any acts on the Property
involving any Hazardous Substances that would materially
affect the value of the Property or would require clean-up
or remedial action under federal, state, or local laws and
codes.
-
DEFAULT AND REMEDIES
-
Trustor
Right to Quiet Possession
- Until default by
the Trustor under this Trust, the Trustor will have quiet
possession and receive the rents and profits from the
Property.
-
Events
of Default
-
The Trustor will be in default under this Trust upon the
happening of any of the following events:
- if the
Trustor defaults in the payment of the Principal
Amount, interest or any other amount secured by this
Trust, when payment of such amount becomes due under
the terms of this Trust or as elsewhere provided for
any other amount secured by this Trust;
- if the
Trustor defaults in the observance or performance of
any term or covenant which the Trustor has agreed to
observe or perform under this Trustor or
elsewhere;
- if any
information or statement the Trustor has given or
made before, at or after signing the Trust, in
respect of the Property or the Trustor's affairs is
incorrect or untrue at the time it was given or
made;
- if the
Trustor ceases or threatens to cease to carry on in
a sound businesslike manner, the business in which
the Trustor ordinarily conducts on, or with respect
to all or any part of, the Property;
- if the
Property is a condominium unit or units, a vote
authorizes termination of the condominium or the
sale of all or substantially all of the condominium
corporation's assets or its common elements or the
condominium corporation fails to insure the unit and
common elements;
- if a
petition in bankruptcy is filed against the Trustor,
if the Trustor make a general assignment for the
benefit of the creditors, if a receiver, interim
receiver, monitor or similar person is placed or is
threatened to be placed in control of or for the
overview of the Trustor's affairs or Property, or in
the opinion of the Beneficiary, the Trustor becomes
insolvent;
- if a
construction or similar lien is registered against
the Property or if default occurs under any other
lien, trust or other encumbrance existing against
the Property;
- if the
Trustor abandons or does not visibly and
consistently occupy the Property; or
- if the
Property or a material part of the Property is
expropriated.
- if the
Trustor defaults in the payment of the Principal
Amount, interest or any other amount secured by this
Trust, when payment of such amount becomes due under
the terms of this Trust or as elsewhere provided for
any other amount secured by this Trust;
-
Acceleration
on Default
- If at any time the
Trustor should be in default under this Trust, then the
Principal Amount, interest and all amounts secured by this
Trust will, at the option of the Beneficiary, become due and
payable immediately.
- If at any time the
Trustor is in default and the Beneficiary does not require
the Trustor to pay immediately in full as described above,
the Beneficiary will retain the right to seek full immediate
payment if the Trustor is in default at a later time. Any
forbearance on the part of the Beneficiary upon default,
which includes but not limited to acceptance of late
payment, acceptance of payment from third parties, or
acceptance of payments less than the amount then due, will
not constitute as waiver to enforce acceleration on
default.
- In the event that
the Beneficiary elects to accelerate the Trust, the
Beneficiary will provide notice to the Trustor in accordance
with Applicable Law.
-
Additional
Charges
- The Trustor may be
charged with fees in association with the default of this
Trust or for the protection of the Beneficiary's interest
for this Trust, which may include, but is not limited to
attorneys' fees and property inspections (the "Additional
Fees"). The absence of specific charges which may be
levied against the Trustor in this Trust does not preclude
the Beneficiary from charging such costs as Additional Fees.
However, the Beneficiary will not charge any fees
which are prohibited by Applicable Law and the Beneficiary
will not charge any fees above and beyond the amount or
percentage allowed under the Applicable Law. Any
amount disbursed by the Beneficiary in relation to the
protection of the Beneficiary's security will become
Additional Fees payable by the Trustor. The Additional
Fees will carry an interest rate of
_______________
percent per annum, compounding annually. The
Additional Fees' total including interest will become due
upon written request by the Beneficiary.
-
Protection
of Beneficiary's Security
-
If at any time the Trustor should fail to uphold the
covenants in this Trust, or if a legal proceeding commences
which materially affects the Beneficiary's interest in the
Property, the Beneficiary may pay or perform any reasonable
action as necessary to protect the Beneficiary's interest,
which includes, but is not limited to:
- payment of
insurance premiums and taxes, levies, accruing
against the Property;
- payment of
sums due secured by a prior lien which has priority
over this Trust;
- payment of
legal fees in relations to any legal proceedings or
legal costs arising from the Property; and
- payment of
reasonable costs in repairing and maintaining the
Property.
- payment of
insurance premiums and taxes, levies, accruing
against the Property;
- Any action referred
to in this section is optional for the Beneficiary and the
Beneficiary has no duty or obligation to carry out any of
the remedies listed in this section and will not incur any
liability in the failure to perform such tasks.
- Any amount
disbursed by the Beneficiary in relation to the protection
of the Beneficiary's security will become Additional Fees
payable by the Trustor.
-
Remedies
on Default
- The Beneficiary
will have the right to pursue all remedies for the
collection of the amounts owing on this Trust that are
provided for by Applicable Law (both federal and state),
whether or not such remedies are expressly granted in this
Trust, including but without limitation foreclosure
proceedings.
- If the Beneficiary
invokes the power of sale, the Beneficiary will cause the
Trustee to execute a written notice of the event of default
and the Beneficiary's election to sell the Property.
The Beneficiary or the Trustee will mail copies of the
notice as prescribed by Applicable Law to Trustor and other
persons as required by Applicable Law. The Trustee
will give public notice of sale to the Trustor in the manner
provided for by Applicable Law. After the time required by
Applicable Law, the Trustee, without demand on the Trustor,
will sell the Property at public auction to the highest
bidder, at the time and place and subject to the terms
indicated in the notice of sale. The Trustee may
postpone sale of the Property by public announcement at the
time and place of any scheduled sale.
-
MISCELLANEOUS MATTERS
-
Interpretation
and Headings
- Headings are
inserted for the convenience of the parties to the Trust and
are not to be considered when interpreting this Agreement.
Words in the singular mean and include the plural and
vice versa. Words in the masculine gender mean and
include the feminine gender and vice versa. Words
importing persons include firms and corporations and vice
versa.
-
Severability
- If any provision of
this Trust will be held invalid or be prohibited by the
Applicable Law, such provision will not invalidate the
remaining provisions of this Trust and such provisions of
the Trust will be amended or deleted as necessary to comply
with the Applicable Law.
- Nothing contained
in this Trust will require the Trustor to pay or for the
Beneficiary to accept interest in an amount greater than
that allowed by Applicable Law. If the payment of interest
or other amounts under this Trust would otherwise exceed the
maximum amount allowed under Applicable Law or violate any
law as to disclosure or calculation of interest charges,
then the Trustor's obligations to pay interest or other
charges will be reduced or amended to the maximum rate or
amount permitted under Applicable Law.
-
Joint
Signatures
- If the Trustor is
more than one person or legal entity, each person or legal
entity who signs it will be jointly and severally bound to
comply with all covenants and obligations of the Trustor and
the said covenants and obligations will bind all of the
Trustor's successors and permitted assigns. The Trust will
enure to the benefit of the Beneficiary and the
Beneficiary's successors and assigns.
-
Statutory
Covenants
- The covenants
contained in this Trust are additional and supplemental, to
the extent permitted by law, the covenants set out in the
Applicable Law regarding trusts.
-
Substitute
Trustee
- The Beneficiary
may, at its option, from time to time appoint a new Trustee
by an instrument executed and acknowledged by the Trustor
and recorded in the office of the Recorder of the county in
which the Property is located. The instrument will contain
the name of the original Beneficiary, Trustee, and Trustor,
the book and page where the Trust is recorded and the name
and address of successor trustee. The successor trustee will
succeed to all the title, powers, and duties conferred upon
the Trustee.
-
Demands
and Notices
-
Any notice given by either party in this Trust must be in
writing. Unless otherwise provided in this Trust or
prohibited by law, where this Trust allows or requires the
Beneficiary to make a demand on or give a notice to any
person (including the Trustor), the Trustor will make the
demand or give the notice by:
- delivering
it to the person at the Property or person's last
known address;
- by mailing
it by prepaid registered mail addressed to the
person at the Property or the person's last known
address;
- by sending
it by facsimile to the person's last known number;
or
- where the
person is a corporation, by so delivering or sending
it to the last known address or number of a
director, officer, employee or attorney of the
corporation.
- delivering
it to the person at the Property or person's last
known address;
- Any party in this
instrument whose address has changed are responsible for
notifying the other respective parties of the change in
address.
- Any notice or demand
delivered as described will constitute as sufficient
delivery. Any notice, demand, mail and facsimile (the
"Notice") made will constitute as being effective on the
same day that it was sent, unless the day in which the
Notice was sent falls on a national holiday, Saturday or
Sunday, in which case, the next business day would be
considered as the day of receipt.
IN WITNESS
WHEREOF the Trustor, has duly affixed his or her
signature under hand and seal on this
___________________
|
Trustor
Acknowledgment
STATE OF ____________________
COUNTY OF ____________________
On this ___________________ , before me, ________________________ (name of notary), personally appeared Trustors, known to me (or satisfactorily proven) to be the persons whose names are subscribed to the within instrument and acknowledged that they executed the same for the purposes therein contained.
In witness whereof I hereunto set my hand.
________________________________
Notary Public
My commission expires: _____________
Guarantor
Acknowledgment
STATE OF ____________________
COUNTY OF ____________________
On this ___________________ , before me, ____________________, a Notary Public in and for the State of Idaho, personally appeared Guarantors, known or identified to me, (or proved to me on the oath of ____________________ ), to be the persons whose names are subscribed to the within instrument, and acknowledged to me that they executed the same.
________________________________
Notary Public
My commission expires: _____________
Property Details
e.g. #99, 12345 Street, City
e.g. Fulton County
Legal description:
e.g. Lot Number, Block Number, Additions, City, County, StateThe property is a condominium?
Principal and Interest Rate
Amount of principal:
What is the interest rate?
What is the interest adjustment date?
Payment Details
Principal and Interest payments will be made
What day of the month are installment payments due?
Day:
On what day are installment payments due?
How much is each payment?
Maturity Date:
Address for payments is Beneficiary address?
Annual Prepayment
Allow annual prepayment of principal without penalty?
What percent of the principal can the trustor prepay each year?
Percent:
Can the trustor prepay any amount not prepaid in a previous year?
Entire Prepayment
Allow prepayment of entire balance owing?
Will there be a penalty for paying off the entire balancing owing?
What will be the penalty?
List penalty details:
List the penalty the trustor must pay for the privilege of prepaying the entire principal. (e.g. The trustor must pay $7,000 to the beneficiary.)
I want to draft additional provisions.
Provision
Add another Provision
Signing Details
Signing date for the Deed of Trust
In which jurisdiction will the document be notarized for Trustor(s)
In which jurisdiction will the document be notarized for Guarantor(s)
Your Deed of Trust
Your Deed of Trust
Deed of Trust
THIS DEED OF TRUST (the "Trust") dated this _________________________
BETWEEN:
_________________________ of
_________________________
(the "Trustor")
OF THE FIRST PART
- AND -
_________________________ of
_________________________
(the "Beneficiary")
OF THE SECOND PART
- AND -
_________________________ of
_________________________
(the "Trustee")
OF THE THIRD PART
Background
A.
The Trustor, being registered as owner of the estate in
the following described property (the "Property") located at
________________________________________
in
____________________
, State of
Albama
, United States with the following legal
description:
___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
B. Any buildings or structures on the
Property and anything now or later attached or fixed to the
buildings or the Property including additions, alterations and
improvements located on, above or below the surface of the
Property are covered by this Trust. However, no additions,
alterations or improvements will be
made by the Trustor with out
the Beneficiary's prior written consent. Any addition,
alteration or improvement will be subject to all recorded
easements, rights of way, conditions, encumbrances and
limitations, and to all applicable building and use
restrictions, zoning laws and ordinances, if any, affecting the
Property.
IN CONSIDERATION
OF the sum lent to the Trustor by the Beneficiary, in
the amount of $
_______________
U.S. DOLLARS (the "Principal Amount") the receipt of
which the Trustor does hereby acknowledges itself indebted, the
parties to this Trust agree as follows:
-
U.C.C.
Security Agreement
- It is agreed that if
any of the Property herein trusted is of a nature so that a
security interest in the Property can be perfected under the
Uniform Commercial Code, this instrument will constitute a
Security Agreement and Trustor agrees to join with the
Beneficiary in the execution of any financing statements and
to execute any and all other instruments that will be
required for the perfection or renewal of such security
interest under the Uniform Commercial Code.
-
Governing
Law
- This Trust will be
governed by both the law of Alabama and any applicable
federal law ("Applicable Law"). All rights and
obligations contained in this Trust are subject to any
requirements and limitations of Applicable Law.
-
Promise
to Pay
- The Trustor, for
value received, promises to pay to the Beneficiary, on
demand, the Principal Amount, interest and all fees and
costs on the terms set out in this Trust or in any
amendment, extension or renewal of the Trust and any
additional amounts secured by this Trust on the terms
elsewhere provided for such debts and liabilities.
-
Interest
-
The Trustor agrees to pay the Principal Amount with interest
before and after maturity and before and after default at
the rate of
_______________
percent calculated per annum and compounding
annually (the "Interest Rate"). The Interest Rate will be
calculated from the date this Trust begins (the "Interest
Adjustment Date") and accrues until the whole of the
Principal Amount is paid. The Loan will be repaid
on the following terms:
- the
Principal and interest will be repaid in consecutive
installments of $
_______________
;
- the Interest
Adjustment Date for this Trust is
______________________________; and
- the balance,
if any, of the Principal Amount and any interest
thereon and any other moneys owing under this Trust
will be due and payable on
_______________
(the "Maturity Date").
- the
Principal and interest will be repaid in consecutive
installments of $
_______________
;
-
Place
of Payment
- The Trustor will
make monthly payments at
________________________________________ or at a location
later specified by the Beneficiary.
-
Funds
for Escrow Items
- The Trustor will pay
to the Beneficiary, on the day periodic payments are due
under this Trust, a sum (the "Funds") to provide for payment
of (a) all taxes, assessments and other charges against the
Property; (b) ground rents or other lease payments on the
Property; and (c) premiums for any and all insurance
required by Beneficiary.
- If there is a
surplus of Funds held in escrow, the Beneficiary will
provide the Trustor with the excess funds in accordance with
RESPA. If there is a shortage of Funds held in escrow,
the Beneficiary will notify the Trustor as required by the
RESPA, and the Trustor will pay to the Beneficiary the
amount necessary to make up the shortage in accordance with
the RESPA.
- The Trustor will
notify the Beneficiary of all of amounts to be paid under
this Section. At the Beneficiary's discretion, the Trustor
will provide receipts of such payments to the Beneficiary.
If the Trustor fails to make timely payments the Beneficiary
can, at its discretion, make any payments for past due
Escrow Items and the Trustor will be obligated to repay to
the Beneficiary any such amount. The Beneficiary may waive
the Trustor's obligation to pay for any or all Escrow items
to the Beneficiary through written notice. If such waiver
occurs, the Trustor is responsible to pay the amounts due
for any Escrow Items. The Beneficiary can at any time revoke
the waiver of any or all Escrow Item payments by written
notice to the Trustor, and upon such revocation, the Trustor
will pay to the Beneficiary all Funds, and in such amounts,
that are then required under this Section.
- The Beneficiary will
collect and hold the Funds in accordance with the Real
Estate Settlement Procedures Act (the "RESPA"). The
Beneficiary will reasonably estimate the amount of Funds due
in accordance with Applicable Law.
- If there is a
surplus of Funds held in escrow, the Beneficiary will
provide the Trustor with the excess funds in accordance with
RESPA. If there is a shortage of Funds held in escrow,
the Beneficiary will notify the Trustor as required by the
RESPA, and the Trustor will pay to the Beneficiary the
amount necessary to make up the shortage in accordance with
the RESPA.
-
Obligation
to Pay without Set-off or Delay
- The Trustor agrees
to pay all amounts payable pursuant to this Trust and all
additional amounts secured by this Trust without abatement,
set-off or counterclaim. Should the Trustor make any claim
against the Beneficiary either initially or by way of
abatement, set-off or counterclaim, the Trustor agrees that
any such claim will not diminish or delay his obligations to
make the payments as provided in this Trust.
-
Application
of Payments and Interest after Default
- All monthly
payments received by the Beneficiary will first be applied
in payment of the interest calculated at the Interest Rate,
and second in payment of the Principal Amount. However, if
the Trustor is in default, then the Beneficiary will apply
any payments received during this period as the Beneficiary
chooses. If the Trustor is in default in payment of any
amount including interest, interest will be payable on the
interest and other arrears at the Interest Rate compounded
monthly.
-
Discharge
- When the Trustor
pays the Principal Amount, interest and all the other
amounts secured by this Trust in full and notifies the
Beneficiary in writing, the Beneficiary will execute a Deed
or Reconveyance and record it to clear the title to the
Property. The Trustor will give the Beneficiary a reasonable
time after payment in which to prepare and issue the Deed of
Reconveyance.
-
Covenants
and Warranties
-
The Trustor warrants and agrees that:
- the Trustor
has good title to the Property;
- the Trustor
has the authority to trust the Property;
- on default,
the Beneficiary will have quiet possession of the
Property;
- the Property
is free from all encumbrances;
- the Trustor
will execute further assurance of the Property as
will be required; and
- the Trustor
has not done any act to encumber the Property.
- the Trustor
has good title to the Property;
-
The Trustee warrants and agrees that:
- Trustee will
preserve the title to the Property and the validity
and priority of this Trust and will forever warrant
and defend the same for the Beneficiary against the
claims of all persons.
- Trustee will
preserve the title to the Property and the validity
and priority of this Trust and will forever warrant
and defend the same for the Beneficiary against the
claims of all persons.
-
Additional
Covenants of Leasehold Property
- If the Trustor has
a leasehold interest in the Property, the Trust will not
apply to the last day of the term of the Lease or the term
of any renewal or replacement of the Lease. The Trustor will
hold the last day of each term in trust for the Beneficiary
and transfer it on his direction to any person acquiring
such term.
-
If the Trustor has a leasehold interest in the Property, the
Trustor warrants and agrees that:
- the Trustor
has good and marketable leasehold title to the
Property;
- the Trustor
has a good, valid and subsisting lease (the "Lease")
of the Property and has given to the Beneficiary and
Trustee a full and complete copy of that Lease;
- all rents
and other monies payable under the Lease have been
paid and the Trustor are not otherwise in default
under any obligation set out in the Lease;
- the Trustor
does not require the consent of the landlord to
trust his leasehold interest in the Property, or if
required, have already obtained the consent of the
landlord to this Trust;
- the Trustor
will pay rent and perform and observe all other
obligations under the Lease;
- the Trustor
will not encumber or surrender the Lease or cause or
allow it to be terminated or forfeited;
- the Trustor
will not agree to any amendment of the Lease without
first obtaining the Beneficiary's written consent;
and;
- the Trustor
will renew the Lease as necessary to protect the
Beneficiary's interest and the Trust will extend to
any such renewal.
- the Trustor
has good and marketable leasehold title to the
Property;
-
Fixtures
and Additions
- The Trustor agrees
that the Property includes all property of any kind that is
now or at any time in the future attached or fixed to the
land or buildings or placed on and used in connection with
them, as well as all alterations, additions and improvements
to the buildings.
-
Payment
of Taxes and Other Encumbrances
- The Trustor will
pay all taxes and other rates levied on the Property and all
accounts for utilities supplied to the Property and all
charges, trusts, liens and other encumbrances on the
Property when they are due and comply with his other
obligations under them. Upon the Beneficiary's request, the
Trustor will immediately give receipts showing that the
taxes and other accounts have been paid.
-
No
Sale Without Consent
- The Trustee will
not sell, transfer, lease or otherwise dispose of all or any
part of the Property or any interest in the Property, or if
a corporation, permit a change in control, without the
Trustor's and Beneficiary's prior written approval and if
approved, without such approved purchaser, transferee or
lessee entering an assumption agreement in form satisfactory
to the Beneficiary. Acceptance of any payments from a
purchaser, transferee or lessee or after a change in control
not approved in writing, will not constitute an approval or
waiver by the Beneficiary.
-
Property
Insurance
- Trustor will insure
in the Beneficiary's favor all buildings on the Property
that are the subject of the Trust. The insurance will
include protection against damage by fire and other perils
including "extended peril coverage" and any other perils
that the Beneficiary requests. The insurance must cover
replacement costs of any buildings on the Property in US
dollars. The Trustor will choose the insurance company
subject to the Beneficiary's right to disapprove. The
insurance policies will include a standard trust clause
stating that any loss is payable to the
Beneficiary. This Trust will be enough proof for any insurance company to pay any claims to the Beneficiary and to accept instructions from the Beneficiary regarding any insurance claims.
-
The Trustor will provide the following at the request of the
Beneficiary:
- a copy of
the insurance policy;
- receipts of
all paid insurance premiums; and
- renewal
notices and evidence of renewal completion.
- a copy of
the insurance policy;
- In the event of
loss, the Trustor will provide prompt notice to the
Beneficiary and the insurance carrier. The Trustor will
provide the Beneficiary with proof of all claims at the
Trustor's own expense and do all necessary acts to enable
the Trustor to obtain all insurance proceeds from the claim.
The insurance proceeds, in whole or in part, will be applied
to the restoration and repair of the Property, if the
restoration and repair is economically feasible. If the
restoration and repair is not economically feasible, the
insurance proceeds will be applied to the remainder of the
Trust, whether or not the balance of the Trust is then due.
Any remaining funds from the insurance claim will be paid to
the Trustor.
-
Repair,
Vacancy and Maintenance of the Property
- The Trustor will
maintain the Property in good order, condition and repair
and will promptly make all necessary repairs, replacements,
and improvements. The Trustor will not allow the Property to
become or remain vacant without the written consent of the
Beneficiary. The Trustor will not commit waste and will not
remove, demolish or materially alter the Property or any
part of it without prior written consent from the
Beneficiary. The Beneficiary may, whenever necessary, enter
upon and inspect the Property. If the Trustor, or anyone
claiming under the Trustor, neglect to keep the Property in
good condition and repair, or commit any act of waste on the
Property, or do anything by which the value of the Property
is diminished, as to all of which the Beneficiary will be
sole judge, the Beneficiary may (but is not obliged to)
enter the Property and effect such repairs or work as it
considers necessary.
-
Environmental
Hazards
- The Trustor will
not use, store, release, deposit, recycle, or permit the
presence of hazardous substances on the Property, generally
accepted items for residential use excepted, which includes
but not limited to asbestos, PCBs, radioactive materials,
gasoline, kerosene, or other flammable petroleum products
(the "Hazardous Substances"). The Trustor is also
prohibited from performing any acts on the Property
involving any Hazardous Substances that would materially
affect the value of the Property or would require clean-up
or remedial action under federal, state, or local laws and
codes.
-
Trustor
Right to Quiet Possession
- Until default by
the Trustor under this Trust, the Trustor will have quiet
possession and receive the rents and profits from the
Property.
-
Events
of Default
-
The Trustor will be in default under this Trust upon the
happening of any of the following events:
- if the
Trustor defaults in the payment of the Principal
Amount, interest or any other amount secured by this
Trust, when payment of such amount becomes due under
the terms of this Trust or as elsewhere provided for
any other amount secured by this Trust;
- if the
Trustor defaults in the observance or performance of
any term or covenant which the Trustor has agreed to
observe or perform under this Trustor or
elsewhere;
- if any
information or statement the Trustor has given or
made before, at or after signing the Trust, in
respect of the Property or the Trustor's affairs is
incorrect or untrue at the time it was given or
made;
- if the
Trustor ceases or threatens to cease to carry on in
a sound businesslike manner, the business in which
the Trustor ordinarily conducts on, or with respect
to all or any part of, the Property;
- if the
Property is a condominium unit or units, a vote
authorizes termination of the condominium or the
sale of all or substantially all of the condominium
corporation's assets or its common elements or the
condominium corporation fails to insure the unit and
common elements;
- if a
petition in bankruptcy is filed against the Trustor,
if the Trustor make a general assignment for the
benefit of the creditors, if a receiver,
interim receiver, monitor or similar person is placed or is threatened to be placed in control of or for the overview of the Trustor's affairs or Property, or in the opinion of the Beneficiary, the Trustor becomes insolvent;
- if a
construction or similar lien is registered against
the Property or if default occurs under any other
lien, trust or other encumbrance existing against
the Property;
- if the
Trustor abandons or does not visibly and
consistently occupy the Property; or
- if the
Property or a material part of the Property is
expropriated.
- if the
Trustor defaults in the payment of the Principal
Amount, interest or any other amount secured by this
Trust, when payment of such amount becomes due under
the terms of this Trust or as elsewhere provided for
any other amount secured by this Trust;
-
Acceleration
on Default
- If at any time the
Trustor should be in default under this Trust, then the
Principal Amount, interest and all amounts secured by this
Trust will, at the option of the Beneficiary, become due and
payable immediately.
- If at any time the
Trustor is in default and the Beneficiary does not require
the Trustor to pay immediately in full as described above,
the Beneficiary will retain the right to seek full immediate
payment if the Trustor is in default at a later time. Any
forbearance on the part of the Beneficiary upon default,
which includes but not limited to acceptance of late
payment, acceptance of payment from third parties, or
acceptance of payments less than the amount then due, will
not constitute as waiver to enforce acceleration on
default.
- In the event that
the Beneficiary elects to accelerate the Trust, the
Beneficiary will provide notice to the Trustor in accordance
with Applicable Law.
-
Additional
Charges
- The Trustor may be
charged with fees in association with the default of this
Trust or for the protection of the Beneficiary's interest
for this Trust, which may include, but is not limited to
attorneys' fees and property inspections (the "Additional
Fees"). The absence of specific charges which may be
levied against the Trustor in this Trust does not preclude
the Beneficiary from charging such costs as Additional Fees.
However, the Beneficiary will not charge any fees
which are prohibited by Applicable Law and the Beneficiary
will not charge any fees above and beyond the amount or
percentage allowed under the Applicable Law. Any
amount disbursed by the Beneficiary in relation to the
protection of the Beneficiary's security will become
Additional Fees payable by the Trustor. The Additional
Fees will carry an interest rate of
_______________
percent per annum, compounding annually. The
Additional Fees' total including interest will become due
upon written request by the Beneficiary.
-
Protection
of Beneficiary's Security
-
If at any time the Trustor should fail to uphold the
covenants in this Trust, or if a legal proceeding commences
which materially affects the Beneficiary's interest in the
Property, the Beneficiary may pay or perform any reasonable
action as necessary to protect the Beneficiary's interest,
which includes, but is not limited to:
- payment of insurance premiums and taxes, levies, accruing against the Property;
- payment of sums due secured by a prior lien which has priority over this Trust;
- payment of legal fees in relations to any legal proceedings or legal costs arising from the Property; and
- payment of reasonable costs in repairing and maintaining the Property.
- Any action referred
to in this section is optional for the Beneficiary and the
Beneficiary has no duty or obligation to carry out any of
the remedies listed in this section and will not incur any
liability in the failure to perform such tasks.
- Any amount
disbursed by the Beneficiary in relation to the protection
of the Beneficiary's security will become Additional Fees
payable by the Trustor.
-
Remedies
on Default
- The Beneficiary
will have the right to pursue all remedies for the
collection of the amounts owing on this Trust that are
provided for by Applicable Law (both federal and state),
whether or not such remedies are expressly granted in this
Trust, including but without limitation foreclosure
proceedings.
- If the Beneficiary
invokes the power of sale, the Beneficiary will cause the
Trustee to execute a written notice of the event of default
and the Beneficiary's election to sell the Property.
The Beneficiary or the Trustee will mail copies of the
notice as prescribed by Applicable Law to Trustor and other
persons as required by Applicable Law. The Trustee
will give public notice of sale to the Trustor in the manner
provided for by Applicable Law. After the time required by
Applicable Law, the Trustee, without demand on the Trustor,
will sell the Property
at public auction to the highest bidder, at the time and place and subject to the terms indicated in the notice of sale. The Trustee may postpone sale of the Property by public announcement at the time and place of any scheduled sale.
-
Interpretation
and Headings
- Headings are
inserted for the convenience of the parties to the Trust and
are not to be considered when interpreting this Agreement.
Words in the singular mean and include the plural and
vice versa. Words in the masculine gender mean and
include the feminine gender and vice versa. Words
importing persons include firms and corporations and vice
versa.
-
Severability
- If any provision of
this Trust will be held invalid or be prohibited by the
Applicable Law, such provision will not invalidate the
remaining provisions of this Trust and such provisions of
the Trust will be amended or deleted as necessary to comply
with the Applicable Law.
- Nothing contained
in this Trust will require the Trustor to pay or for the
Beneficiary to accept interest in an amount greater than
that allowed by Applicable Law. If the payment of interest
or other amounts under this Trust would otherwise exceed the
maximum amount allowed under Applicable Law or violate any
law as to disclosure or calculation of interest charges,
then the Trustor's obligations to pay interest or other
charges will be reduced or amended to the maximum rate or
amount permitted under Applicable Law.
-
Joint
Signatures
- If the Trustor is
more than one person or legal entity, each person or legal
entity who signs it will be jointly and severally bound to
comply with all covenants and obligations of the Trustor and
the said covenants and obligations will bind all of the
Trustor's successors and permitted assigns. The Trust will
enure to the benefit of the Beneficiary and the
Beneficiary's successors and assigns.
-
Statutory
Covenants
- The covenants
contained in this Trust are additional and supplemental, to
the extent permitted by law, the covenants set out in the
Applicable Law regarding trusts.
-
Substitute
Trustee
- The Beneficiary
may, at its option, from time to time appoint a new Trustee
by an instrument executed and acknowledged by the Trustor
and recorded in the office of the Recorder of the county in
which the Property is located. The instrument will contain
the name of the original Beneficiary, Trustee, and Trustor,
the book and page where the Trust is recorded and the name
and address of successor trustee. The successor trustee will
succeed to all the title, powers, and duties conferred upon
the Trustee.
-
Demands
and Notices
-
Any notice given by either party in this Trust must be in
writing. Unless otherwise provided in this Trust or
prohibited by law, where this Trust allows or requires the
Beneficiary to make a demand on or give a notice to any
person (including the Trustor), the Trustor will make the
demand or give the notice by:
- delivering
it to the person at the Property or person's last
known address;
- by mailing
it by prepaid registered mail addressed to the
person at the Property or the person's last known
address;
- by sending
it by facsimile to the person's last known number;
or
- where the
person is a corporation, by so delivering or sending
it to the last known address or number of a
director, officer, employee or attorney of the
corporation.
- delivering
it to the person at the Property or person's last
known address;
- Any party in this
instrument whose address has changed are responsible for
notifying the other respective parties of the change in
address.
- Any notice or demand
delivered as described will constitute as sufficient
delivery. Any notice, demand, mail and facsimile (the
"Notice") made will constitute as being effective on the
same day that it was sent, unless the day in which the
Notice was sent falls on a national holiday, Saturday or
Sunday, in which case, the next business day would be
considered as the day of receipt.
MATTERS RELATING TO PAYMENT
DEFAULT AND REMEDIES
MISCELLANEOUS MATTERS
IN WITNESS
WHEREOF the Trustor, has duly affixed his or her
signature under hand and seal on this
___________________
|
Trustor Acknowledgment
STATE OF ____________________
COUNTY OF ____________________
On this ___________________ , before me, ________________________ (name of notary), personally appeared Trustors, known to me (or satisfactorily proven) to be the persons whose names are subscribed to the within instrument and acknowledged that they executed the same for the purposes therein contained.
In witness whereof I hereunto set my hand.
________________________________
Notary Public
My commission expires: _____________
Guarantor Acknowledgment
STATE OF ____________________
COUNTY OF ____________________
On this ___________________ , before me, ____________________, a Notary Public in and for the State of Idaho, personally appeared Guarantors, known or identified to me, (or proved to
me on the oath of ____________________ ), to be the persons whose names are subscribed to the within instrument, and acknowledged to me that they executed the same.
________________________________
Notary Public
My commission expires: _____________