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HomeMy WebLinkAbout917989 (, ðl> Cf'\f"'559 RECORDATION REQUESTED BY: FIRST NATIONAL BANK· WEST Alpine 100 Greys River Rd. P.O. Box 3110 Alpine. WY 83128 WHEN RECORDED MAIL TO: FIRST NATIONAL BANK· WEST Alpine . 100 Greys River Rd. P,O, Box 3110 Alpine. WV 83128 RECEIVED 5/2/2006 at 11 :42 AM RECEIVING # 917989 BOOK: 618 PAGE: 559 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY SEND TAX NOTICES TO: FIRST NA nONAL BANK· WEST Alpine 100 Greys River Rd. P.O. Box 3110 Alpine, WY 83128 __ ·'__'__n.__ ---- _._-~- -'-_. .-.-.------ SPACE ABOVE THI~ LlN~ IS FOR RECORDER'S USE ONI. Y MORTGAGE THIS MORTGAGE dated April 18, 2006, is made and executed between DAVID BARBER, whose address is 3216 SHEEHAN ROAD, CAMDEN, NY 13316 (referred to below as "Grantor") and FIRST NATIONAL BANK. WEST, whose address is 100 Grevs River Rd., P.O. Box 3110, Alpine, WY83128 (referred to below as "Lender"). GRANT OF MORTGAGE. For valuablø consideration, Grantor mortgages and conveys to lender all 0'1 Grantor's right, title, and interest in and to l f \ the following described real property, together with all existing or subsequently erected or aft/xed buildings, improvements and fixtures; aU J/ easements. rights of way, and appurtenances; all water, water rights, watercourses and ditch rights (including stock in utilities with ditch ()r irrigation rights); and all other rights, royalties. and profits relatin9 to tho real property. including without limitation all minerals, oil, gas, geothermal and similar matters, (the "Real Property") located In LINCOLN County, State of Wyoming: lOT 6,7,8,9 AND 10 OF BLOCK 5 OF BEDFORD BLOCK 5 SECOND FILING, LINCOLN COUNTY, WYOMING AS DESCRIBED ON THE OFfiCIAL PLAT fILED ON OCTOBER 12, 2005 AS INSTRUMENT NO. 912739 OF THE RECORDS OF THE LINCOLN COUNTY CLERK, The Real Property or its address is commonly known as LOTS 6·10 B STREET. BEDFORD, WY 83112. Grantor presently assigns to Lender all of Grantor's right, titl$. and interest In and to all p.tesent and future leases of the Property and all Ronts from the Property. In addition, Grantor grants to Lander a Uniform Commercial Code security interest in the Personal Property and Rents, THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE seCURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY. IS GIVEN TO SECURE IA) PAYMENT OF THE INDEBTEDNESS AND (8) PERFORMANCE OF ANY AND ALL OBliGATIONS UNDER THE NOTE, THE RELATED DOCUMENTS, AND THIS MORTGAGE. THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS: PAYMENT AND PERFORMANCE. Except as otherwise provided in this Mortgage, Grantor shall pay to Lender aU amounts secured by this Mortgage as they become due and shall strictly per'lorm all of Grantor's obligations under this Mortgage. POSSESSION AND MAINTENANCE OF THE PROPERTY. Grantor agrees that Grantor's possession and use of the Property shaH be governed by the following provisions: Possession and Use. Until the occurrence of an Event 0'1 Default, Grantor may {1 J remain in possession and control 0'1 the Property; (2) use, operate or manage the Propèrty; and (3) collect the Rents from the Property. Duty to Maintain. Grantor shall maintain the Property in good condition and promptly perform all repairs, replacements, and maiotenance necessary to preserve its value. Compliance With Environmental Laws. Grantor represents and warrants to lender that: (1) During the period of Grantor's ownership of the Property, there has been no use, generation, manufacture, storage, treatment, disposal. release or ti'lreatened release of any Hazardous Substance by any porson on, under, about or from the Property; (2) Grantor has no knowledge of, or reason 10 believe that there has been, except as previously disclosed to ancJ acknowledged by Lender in writing, (a) allY breach or vlolatiM of any Environmental Laws. (b) any use, generation, manufacture, storage, treatment, disposal, releaso or threatened release of any Hazardous Substance ()r\, under, about or from the Property by any prior owners or occupants oftha Property, or (e) any actual or threatened litigation or claims of any kind by any person relating to such matters; and (31 Except as previously disclosed to ¡md acknowJedged by lender in writing, (a) neither Grantor nor any lënant, contractor. agent Qr other authorized user of the Property shaH use, generate, manuf.¡;cture, store, treat, dispose of or release any Hazardous Substance on, under, about or from the Property; and (b) any such aCtivity shaH be conducted in compliance with all applicable federal, state, and local laws, regulations and ordinances, including without limitation all Environmental Laws, Grantor authorius lender and its agents to enter upon the Property to make such inspactions and tests,· at Grantor's expense, as Lender may deem appropriate to determine oompliance of the Property with this section of the Mortgage. An\' inspections or tests made by Lender shaH be for Lender's purposes only and shall not be construed to create any responsibility or liability on the part of lender to Grantor or to any other person. The representations and warranties contained herein are based on Grantor's due diligence in investigating the Property for Ha~ardous Substances. Grantor heleby (1) releases and waives any future claims against Lender for Indemnity or contribution in the event Grantor becomes liable for cleanup or other costs under any such laws; and (2) agrees to indamnify and hold harmless Lender against arty and aU claims, lossas, (íabiUties, damages, penalties, and expenses which lender may directiy or Indirectly sustain or suffer resulting from a breach of this section of the Mortgage or as a consequence of any use, generation. manufactum, storage, disposal, reiaßs!, or threatened release occ;urring prior to Grantor's ownership or interest In the Property, whether or not the same was or should have been known to Grantor. The provisions of this section of the Mortgage, including the obligation to indemnify, shall survive the payment of the Indebtedness and the satisfaction and reconveyance oftha lien ot this Mortgage and shall not be affected by lender's acquisition of any interest in the Property, whether by foreclosure or otherwise. Nuisance, Wasta. Grantor shall not cause, conduct or permit any nuisance nor commit, permit, or sutfer any stripping oJ or waste on or to the Property or any portion of the Property. Without limiting the generðlity of the foregoing, Grantor wm not remove, or grant to any other nartv the right to remolle, any timber, minerals (including 011 and gas!. coal, clay, scoria. soil, gravel or rock products without Lender's prior \fAjtten consent. Removal of Improvements. Grantor shall not demolish or remove any Improvements from the Real Property without lender's prior written consent. As 8 condition to the removal of any Improvements, Lender may require Grantor to mako arrangements satisfactory to Lender to replace such Improvements with Improvements of at least equal value. lender's Right to Enter. Londer 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 Grantor's compliance with the terms and conditions of this Mortgage. Compliance with Governmental Requiremenn. GrMtor shall promptly comply with al! laws, ordinances. and regulations, now or hereafter in effect of all gOliernmental authorities applicabie to the use oioccupancy of the Property. Grantor may COOlest io good faith any such law. ordinance, or regulation and withhold compliance durlr¡g any proceeding, including appropriate appeals, so long as Grantor has notified Lender in writing prior to doing so an<Lso 10l1g as, in Lender's sole opinion, Lender's interests In the Property are not jeopardized. Lender may requira Grantor to post lIóIë&usté'fÍecurity or a surety bond, reasonably satisfactory to Lender, to protect lender's interest. Duty to Protect. Grantor agrees neither to abandon or leave unattended the Property. Grantor shall do all other acts, in addition to those acts set forth above [n this section, which from the character and use of the Property are reasonably necessary to protect and preserve the Property . TAXES AND LIENS. The fallowing provisions relating to the taxes and liens on the Property are part of this Mortgage; ~~!~m¡~~¡~w~¡~~;~ ~~~ ,;,~~~¡¡:¡:~::,{:: 0917989 loan No: 764003464 MORTGAGE (Continued) C00560 =~---,.-..... Page 2 -- 'A_~~--="""___ ...~~_......,~",....~". ......... ::"~::;o.=:::.'~~ Payment. Grantor shall pay WhM due (and in all events prior to delinquency! all taxes, payroll taxes, special taxes. assessments, water charges and sewer service charges levied against or On accour\t ,of the Property, and shall pay when due all claims for work done on or for services rendered or material furnished to the Property, Grantor.shall maintain the Property free of any liens having priority over or equal to the interest of Lender under this Mortgage, except for those liens specifically agreed to in writing by lender, and except for the lien of t¡¡xes and assessments not due as further specified in the Right to Contest paragraph. fUgbt to Contest. Grantor may withhold 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 filed as a result of nonpayment, GtI!ntor shall within fifteen (15) days ¡¡iter the lien arises or, if a lien is filed, within fifteen (15) days atter Grantor has notIce of the filing, secure the discharge of the lien, or if requ&stad by Lender. deposit with Lender cash or a sufficient corporate surety bond or othor security satisfactory to Lender in an amount sufficient to discharge the lien plus any costs and reasonable attorneys' fees, or other charges that could accrue as a result of a foreclosure or sale under the lien. In any contest. Grantor,shall defend itself and Lender and shall satisfy any adverse judgment before enforcement against the Property. Grantor shall name lender as an additional obligee under any surety bond furnished in the contest proceedings. Evidence of Payment. Grantor sh¡¡1I upon demand furnish to lender satisfactory evidence of payment of the taxes or assessments and Shall authorize the appropriata governmental official to deliver to Lender at any time II written :;tatemant of the taxes and assessments lIr¡ainst the Proparty. Notice of Construction. Grantor shall notify lender at least fifteen OS) days before any work is commenced, arlY services are furnished, or any materials are supplied to the Property, if any mechanic's lien, materialmen's lien, or other lien could be asserted on account of the work, services, or materials. Grantor will upon request of lender furnish to lender advance assurances satisfactory to Lender that Grantor can and will pay the cost of such improvements. PROPERTY DAMAGE INSURANCE. The folfowlng provisions relating to insuring the Property are a part of this Mortgage: Maintenance of Insurance. Grantor shall procure and maintain policies ot fire insurance with standard extðnd"d coverage endorsements on a replacement basis for the tull insurable value covering all Improvements on the Real Propetty in an amount sufficient to avoid app!ic¡¡tion of any cOÎl1slirance clause, and with a standard mortgagee clause In falior of lender. Policies shalf be written by such insurance companios and In such form as may be reasonably acceptable to lender. Grantor shaH deliver to lender certificates of coverage from each insurer containing a stipulation that çoverage will not be cancelled or diminished without a minimum of thirty (30) days' prior written notice to Lender and not containing any disclaimer of thti insurer's liability for failure to give such notice. 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 defaultot Grantor or any other person. Should the Reel Property be located in an area desIgnated by the DirE:ctor of the Federal Emergency Man¡¡gernent Agency as a special flood hazard area, Grantor agrees to obtain and maintain Federal Flood Insurance. if avaílabla, for the fuil unpaid principal balance 01 the loan end any prior liens on the property securing the loan, up to the maximum policy limits set under the National Flood Insurance Program, or as otherwise required by lender, and to maIntain such insurance tor the term of the loan. Application of Proceeds. Grantor shall promptly notify lender of any loss or damage to the Property if the estimated .CO$t of repair or replacement exceeds $1,000.00. lender ¡nay make prool of. loss if Grantor 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 appl'f the proceeds to the reduction of the Indebtedness, payment of any lien affecting the Property, or the restoration. and repair of the Property, If lender elects to apply the proceeds to restoration and repair, Grantor shall repair or repl1lce the damaged or destroyed Improvements.in a manner satisfactory to Lender. lender shall, upon satisfactory proof of such expenditure, payor reimburse Grantor from the proëeeds for the reasonable cost of repair or restoration if Grantor is not in default under this Mortgage. Any proceeds which have not been disbursed within 180 days after their receipt and which lender has not committed to the repair or restoration of the Property shall be used first to pay any amount owing to Lender under this Mortgage, then to pay accrued interest. and the remainder, it any, shalf be applìed to the principal balal1ce of the Indebtedness. If lender holds any proceeds atter payment In full of the Indebtedness, such proceeds shall be paid to Grantor as Grantor's Interests may appear. LENDER'S EXPENDITURES. If Grantor fails (A) to keep the Property free of all taxes. liens, security interests, encumbrances. and other claims. Ie} to provide any required insurance on the Property, or (C) to make repairs to the Property then Lender may do so. If /lny action or proceeding is commenced that would materially affect lender's interests In the Property, then lender on Grantor's behalf may, but is not required to. take any action that lender believes to be appropriate to protect lender's interests. AU expenses incurred or paid by Lender for svch purposes will then bear interest at the rate charged under the Note from the date incurred or paid by Londer to the date of repayment by Grantor. AU such expenses will become a part of the Indebtedness and. at lender'¡¡ option, will (AI be payable on demand: (el bø added to the balance of the Note and be apportioned among and be payable with any installment payments to become due during either (1) the term of any applicable insurance policy; or {21 the remainIng term of the Note; or ¡e} be treated as a balloon payment which will be due and payable at the Note's maturity, The Mortgage ¡¡Iso will secure payment of these amounts. Th& rights provided for in this paragraph shail be in addition to any other rights or any remedies to which Lel'lder may be entitled or; account of any default. Any such action by lendor 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 Property are a part of this Mortgage: Title. Grantor warrants that: (a) Grantor holds good and marketable title of record to the Property in fee simple. tree and clear of all liens and encumbrances other than those set forth in the Real Property descfiptlon or in any titla insurance policy, title repert, or final title opinion Issued in favor of, and accepted by, lender In connection with this Mortgage, and (bl Grantor has the filII right. POwer. and authority tQ eXilcu!e and deliver this Mortgage to lender. Defense of TItle. Subject to the exception in the paragraph above, Grantor warrants and will forever defend the title to the Property against the lawful claims of all persons. In the event any action or proceeding is commenced that questions Grantor's title or the interest of Lender under this Mortgage, Gramor shall defend the actIon at Granto¡'s expense, Grantor may be the nomInal party ÍI\ such pmceeding, but Lender shall be entitled to participate In the proceeding and to be represented in the proceeding by côunsel of lender's own choice, and Grantor will deliver, or cause to be delivered, to lender such instruments as lender may request from time to time to permit such participation. Compl1ence With Laws. Grantor warrants that the Property and G/antor's use of the Property complies with all existing applicable laws. ordinanées, and regulations of governmental authorities. Survival of Promises. All promises, agreernents, and statements Grantor has made in this Mortgage shall survive the execution and delivery of this Mortgago. shall be continuing in nature and shall remain in full force and effect until such time as Grantor's Indebtedness is paid in full. CONDEMNATION. The following provisions relating to condemnation proceedings are a part of this Mortgage: Proceedings. If any proceeding in condemnation is filed, Grantor shall promptly notify Lander in writing, and Grantor shall promptly take such steps as may be necessary to defend the action and obtain the award. Grantor may be the nominal party i(, such proceeding, but Lender shall be entitled to participate in the proceeding and. to be represented in the proceeding by counsel of its own choice, and Grantor will deliver or cause to be delivered to Lender such instruments and documentation as may be requested by lender from time to time to permit such participation. Application of Net Proceeds. If all 01 any part of the Property is condemned by eminent domain proceedings or by any proceeding or purchase in lieu ot condemnation, Lemler may at ,its election require that all or any portion of the net proceeds 01 the award be applied to the Indebtedness or the repair or restoration of the Property. The net proceeds of the award shall mean the award after payment of aU reasonable costs, expenses, and attorneys' fees incurred by Lendor in connection with the condemnation. IMPOSlTlqN OF TAXES. FEES AND CHARGES BY GOVERNMENTAl. AUTHORITIES. The following provisions relating 10 governmental taxes. fees and charges are a part of this Mortgage: " Current Taxes, Fees and Chargu~ ,U~ request by lender, GrÐntor shall exacute such documents in addition to this Mortgage and take whatever other action is requhtêd bfLender to perfect and continue Lender's lien on the Real Property. Grantor shall reimburse Lender for ~II :a)(~s, as described below, together with all expenses incurred in recording, perfecting or continuing this Mortgage, including without limItation all taxes, fees, documentary stamps, and other charges for recording or registering this Mortgage. Taxetl. The following shall constitute taxes to Which this section appnes: (1) a specific tax upon this type of Mortgage Of UpM aU or any part of the Indebtedness secured by 'this Mortgage; 12} a specific t3X on Grantor which Grantor is authorized or required to deduct from payments on the Indebtedness secured by this type of. Mortgage; (3) a tax on this type of Mortgage chargeable against the Lender or the 091.7989 loan No; 764003464 MORTGAGE (Continued) 000561 Page 3 ~- - -"-- holder 01 the Note; and j4) 8 specifid tax on all or any portion of the IndebtednsslJ or on payments of principal and interest made by Grantor. Subnquent Taxes. If any tax to which this section appli~ is E¡nacted subsequent to the date of this Mortgage, this event shall have the slime effect liS an Event of Default, ând lender may exercise any or all of Its available remedies for an Event of Default as provided below unless Grantor either m pays the tax before it becomes delinquent, or (2) contests the tax as provided above in the Taxes and liMa section and deposits with Lender cash or a sufficient corporate surety bond or other security aatJsfactory to Lender. SECURITY AGREEMENT; FfNANCING STATEMENTS. The followìng provisions relating to this Mortgagé as a security agreément are II part of this Mortgage: . Security Agreement. This instrument shall constitute a Security Agreement to the extent any of the Property constitutes fixtures, and Lender shall have all of the rights of a secured party under the Uniform Comm ¡rclal Code as amended from time to time. Security Interest. Upon request by lender, Grantor shall take whatever action is requested by Lander to perfect and continue Lender's security interest In the Personal Property. In addition to recording this Mortgage in the real property records. Lender may, at any time and without further authorization from Grantor. file executed cOuntefparts, copies or reproductfons of this Mortgage as a financing statement. Grantor shall reimburse Lender for all expenses incurred in perfeCting or cO"tÎnulng this security interest. Upon dMault. Grantor shall "ot remove, savElr or detach the Personal Property from the Property. Upon default. Grantor shall assemble any Personal Property not affixed to the Property i" a manner and at a place reasonably convenient to Grantor and lender and make it available to Lender within three (3) days after receipt of written demand from lender to the e>,:tent permitted by applicable law. Adc!ressas. The mailing addresses of Grantor (debtor) and lender (secured party) from which information concerning the security interest granted by this Mortgage may be obtained (each as required by the Uniform Commercial Codel are as stated on the first page of this Mortgage. FURTHER ASSURANCES; ATTORNEY·IN-fACT; The following provisions relating to further assurances and attorney-in-fact are a part of this Mortgage: Further Assurances, At any time, and from time to time, upon request of lender, Gramor 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, et such times and in such offices and places as Lender may deem appropriate. any and all such mortgages, deeds of trust, security deeds, security agreements, financing statements, continuation statements, instruments of further assurance, certificates, and other documents as may, in the sole opinion of Lender, be necessary or desirable in order to effectuate, complete, perioc!, continue, or preserve (1) Grantor's obligations under the Note, this Mortgage, and the Related Documents, and (21 the liens and security interests created by this Mortgage as first and prior liens on the Property, whether now owned or hereafter acquired by Grantor. Unless prohibited by law or Lender agrees to the contrary in writing, Grantor shall reimburse Lender for all costs and expenses incurred in connection with the matters referred to in this parágraph. Attorney-in-Fect. If Grantor fails to do any of the things referred to In the preceding paragraph, Lender may do so for and in the name of Grantor arld at Grantor's expense. For such purposes, Grantor hereby irrevocably appoints lander as Grantor's attorney-in-fact for the purpose of making, executing. delivering. filing. recording, and doing all other things as may be necessary or desirable, in Lender's sole opinion, to accomplish the matters referred to In the preceding paragraph. FULL PERFORMANCE. If Grantor pays all the Indebtedness when due. and otherwise performs all the obligations imposed upo" Gmntor undð( this Mortgage, lender shall execute and deliver to Grantor a suitable satisfaction of this Mortgage and suitable statements of termination of ¡my financing Io"tatement on file evidencing Lender's security Interest in the Rents and the Personal Property. Grantor will pay, if permitted by applicabla law, any reasonable termination fee es determined by lender hom time to time, EVENTS OF DEFAULT. At Lender's optlM, Grantor wiU be in default under this Mortgage if any of the fOllowing happen: Payment Default. Grantor fails to make any payment when due under the Indebtedness. Default on Other Payments. Failure of Grantor within the time required by this Mortgage to make any payment for taxes or insurance. or any other payment necessary to prevent filing ot or to effect discharge of any lien. Break Other Promises. Grantor broaks any promise made to Lender or fails to perform promptly at the time and strictly in the manllor provided in this Mortgage or in any agreement related to this Mortgage. False Statements. Any representation or statemeM made or furnished to lender by Grantor or on Grantor's behaH under this Mortgage or the Related Documents is falsI! or misleading in any material respect, either now or at the time made or furnished. Defective Collateraliza1ÎQn. Tm& Mortgage or any of the Related Documents ceases to be in full force and effect {including failure 0'1 any collateml document to create a valid and perfected security interest or lienl at any time and for any reason. Death or Insolvency. The death of Grantor, the insolvency of Grantor, the appointment of Ii receiver for any part of Grantor's property. any assignment for the benefit of creditors, any type of creditor workout, or the Commencement of any proceeding under any bankruptcy or insolvency laws by or against Grantor. Taking of the Property. Any creditor or governmental agency tries to take any of the Property or any other ot Grantor's property in which Lender has a lien. This includes taking of-garnishing of or levying on Grantor's accounts with Lender. However. if Grantor disputes in good faith whether the claim on which the taking of the Property is based is valid or reasonable, and if Grantor gives Lender written notice of the claim and furnishes lender with monies or a surety bond satisfactory to lender to satisfy the claim, then this default provision will not apply. Breach of Other Agreament. An.y breach by Gran.tor under the terms of any other agreement between Grantor and Lender that is not remedied within any grace period provided therein, including without limitation any agreement concerning any Indebtedness or other obligation of Grantor to lender, whether existJng now or.later. Events Affecting Guarantor, Any of tha preceding events occurs with respect to any guarantor, endorser, surety, òr accommodation party of MY of the Indebtedness or any guarantor, endorser, surety, or accommodation party dies· or becomes incompetent, or revokes Or disputes the validity of, or liability under. any Guaranty of the Indebtedness. In the event 01 II death, lender, at Its option, may, but shall not be required to, permit the guarantor's estate to assume unconditiooQUy the. obligations arising under the guaranty in a manner satisfactory to Lender, and. in doing so, cure any Event of Default. Insecurity. Lender in øood faith believes Itself insecure. RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of an Event of Default and at any time thereafter, Lender,at Lender's oplion, may exercise anyone or more of the following rights orld remedies. in addition to any other rights or remedies provided by law: Accelerate Indebtedness. lender shall have the right at its option without notice to Grantor to declare the entire Indebtedness immediately due and pa'iable, including any prepayment penalty which Grantor would be required to pay, UCC Remedies. With respect to all or any part of the Personlll Property, Lender shall have all the rights and remedies of a secured þarty under the Uniform Commercial Code. CoUect Rents. lender shall have the right. without notice to Grantor, to tak.e possession of the Property, inciuding during the pendency of foreclosure, whether judicial or non-judicial. arld collect the Rents, including amounts past due and unpaid, and apply the net proceeds, over and above Lender's costs, against the Indebtedness. In furlhetancè of this right, lender may require any tenant or other user of the Property to make payments of rent or usefess directly to lender. if the Rents are collected by Lender, then Grantor irrevocably designates Lender as Grantor's attorney-in-fact to endorse instruments reqelved ¡npayment thereof in the name of Grentor and to negotiate the same and collect the proceeds. Payments by tenants or other users to Lender in response to Lender's demand shall satisfy the obligations for which the payments are made, wheth~r or not. any proper grounds tor the demand existed. Lender may exercise its rights under this subparagraph either In per8o~ I,fý' agéOt; or through /I receiver. Appoint Receiver. Lender shall have the right to have a receiver appointed to take possession of all or any pert of the Property, with the power to protect end preserve the Property, to operata the Property preceding foreclosure or sale, and to collect the Rents from thè Property and epply the proceeds, over and above the cost of the receivership, against 'the Indebtedness. The receiver may serve without bond If permitted by law. lender's rig~t to the appointment of a receiver shall exist whether or not the apparent value of the Property exceeds the Indebtedness by a substantia! ¡¡mount. Employment by Lender shall not disquaJify a person from serving as a receiver. ¡¡~mm~:u'(\l* ¡,. ~~~rmj~iliili#~: !i~::~*!~~1~:::¡:¡ ~~~:t~:Z~~~!1;~ 0917989 Loan No: 764003464 MORTGAGE (Continued) COC562 Page 4 -~-,...._'. -'-'" ---_..._--~.-.._..._""'...- Judicial Foreclosure. Lender mllY obtain II judicial decree foreclosing Grantor's interest in all or any part 01 the Property. Nonjudicial Sale. Lender may foreclose Grantor's interest in all or in any part of the Property by non-judicial sa!e, and specificafly by "power of sale" or "advertisement and salo" foreclosure as provided by statute. Deficiency Judgment. If permitted by applicable law, Lender may obtain a judgment for any deficiency remaining in the Indebtedness due to Lender after application of all amounts received flom the exercise of the rights provided in this section. Tenancy at Sufferance. If Grantor remains in possession of the Property after the Property is sold as providgd abovo or Lender otherwise bacomes entitled to possession of the. Property upon default of Grantor, Grantor shall become II tenant at sufferance of lender or the purchaser of tile Property and shall, at lender's option, either 111 pay a rea$onable rental for the use of the Prcperty, or (2) vacate the Property immediately upon the dem,lOd of lender. Other Remedies. Lender shall have aU other rights and remedies provided in this Mortgage or the Note or available at law or in equity. Sale of the Property. -To the extent permined by applicable law, Grantor hereby waives any and all right to have the Property marshalled. In exercising its rights and remedies, Lender shall be free to sell all or any part of the Property together or separately. in one snle or by separate sales. Lender shaU be entitled to bid at any public sate on all or eny portion of tha Property. Notice of Sale. Lender will give Grantor reasonable notice of the time and place of any public sale of the Personal Property or of the time after which any private sale or other intended disposition of the Personal Property is to be made. Reasonable notice shall mean notice given at least ten /10} days before the time 01 the sale or disposition. Any sale of the Personal Property may be made in conjunction with any sale of the Real Property. Election of Remedios. All of lender's rights and remedies will be cumulative and may be exercJsedalone or together. An electIon by lender to choose anyone remedy will not bar Lender from using any other remedy. If Lender decides to spend money ono perform any of Grantor's obligations under this Mortgage, after Grantor's failure to do so, that decision by Lender will not affect Lender's right to declare Grantor in default and to exercise Lender's remedies. Attorneys' Fees: Expenses. If lender institutes any suit or action to enforce .any of the terms of this Mortgage, Lender shall be entitled to recOver such sum liS the court may adjudge reasonable as anorneys' fees at trial and upon any appeal. Whether or not any court action is involved, and to the extent not prohibited by law, all reasonable expenses Lender incurs thllt in Lender's opinion are necessary at any time fOr the protection of its interest or the enforcement 01 its rights shall become a part of the Indebtedness payable on demand and shalt bear interast at the Note rate from the di:lte of the expenditure until repaid. Expenses covered by this paragraph include,. without limitation, however subject to any limits under applicable law, lender's reasonable attorneys' fees and Lender's legal expenses whether or not there is a lawsuit, including reasonable attorneys' fees and expenses for b¡mkruptcy proceedings !including efforts to modify 01 vacata. any automatic stllY or injunction}, appeals. and any anticipated post-judgment collection services, the cost of searching records, obtaining title reports (including foreclosure reports), surveyors' reports, and appraisal fees and title insurance, to the extent permitted by applicable law, Grantor also will pay any court costs, in addition to aU other sums provided by law. NOTICES. Any notice required to be given under this Mortgage, including without limitation IIny notice of default and any notice of sale shaH be given in writing, and shall be effective when actually delivered, when actually received by teletacsimile (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,cenified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Mortgage. All copies of notices.of foreclosure from the hold&r of any lien which has priority over this Mortgðgo shall be sent to Lender's address, as shown near the beginning of this Mortgage, Any person may change his or her address for nOtiCes under this Mortgage by giving formal written notice to the other person· or persons, specifying that the purpose of the notice is to. change the person's address. For notice purposes, Grantor agrees to keep Lender informed at all times of Grantor's current address. Unless otherwise provided or required by law, if there is more than one Grantor, any notice given by lender to any Grantor is deemed to be notice given to all Grantors. It wUl be Grantor's re:¡ponsibility to tell the others of the notice from Lender. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Mortgage: Amendments. What is written in this Mortgage and in the Related Documents is Grantor's entire agreement with Lender concerning the matters covered by this Mortgage. To be effective, any change or amendment to this Mortgage must be in writing and must be signed by whoever will be bound or obligated by the change or amendment. Caption Headings. Caption headings In this Mortgage. are for convenience purposes aniI' and are not to be used to. interpret Qr define the provisions of this Mortgaga. Governing law. This Mortgage wUl be governed by federal law applicable to. lender and, to the extent not preempted by fadoral faw, the laws of the State of Wyoming without regard to. Its conflicts of law pro.vÍli!ol\$. This Mortgage has be..n accepted by Lender In the State o.f Wyoming. Cho.ice o.f Venue. If there is a lawsuit, Grantor agrees upon Lender's request to submit to the jurisdiction of the courts of Un cain County, State of Wyoming. ::.. No Walller by Lender. Grantor understands Lender will not give up any of Lender's rights under this Mortgege unless Lendardoes sa in writing. The fact that lender delays or omits to eXercise any right will not mean that Lender has given up thät right. If Lender does agree in writing to. give up one of Lender's rights, that does not mean Grantor will not have to comply with the other provisions of this Mortgage. Grantor also understands that if Lender do.es consent to a request, that does not mean. that Grantor will not have to get Lender's consent again il the situation happens again. Grantor further understands that just because lender consents to one or more of Grantor's requests, that does not mean Lender will be required to consent to any of Grantor's future requests, Grantor waives presentment, demand for payment, protest, and notice of dishonor. Grantor waives all rights of exemption from execution or similar law in the Property, and Grantor agrees that the rights of Lender in the Property under 'this Mortgage are prior to Grantor's rights while this Mortgage remains in effect. Severebißty. If a court finds that any provision of this Mortg.age Is not valid or should not be enforceq, that fact by itself will not mMn that the rest of thJs Mortgage will not be valid or enforced. Therefore, 8 court wi!! enforce the rest of the provisions of this Mortgage even if a provision of this Mortgage may be found to be invalid Dr unenforceable. Merger. There shall be no merger of the interest or estata created by this Mortg<lge with any other interest 01 estatfJ in the Property at any time held by or for thi! benefit of Lender in any capacity, without the written consent of Lender. Successors and AssIgns. Subject to any limitations stated in this Mortgage on transter of Grantor's interest, this Mo.rtgage shaU be binding UPOl\ and inure to the benefit of the partlês, their successors and assigns, If ownership of the Property bacomesvested in a' person other than Grantor. Lender, without notice to Grantor. may deal with Grantor's successors with reference to this Mortgage and the Indebtedness by way of forbearance or extension without releasing Grantor from the obligations of this Mortgage or liability under the Indebtedness. Time Is of the Essence. Time is of the essence in the performance of this Mortgage. Waiver of Homestead Exemption. Grantor hereby releases and waives aU rights and benefits of the homestead exemption laws of the State of Wyoming as to all Indebtedness secured by this Mortgage. DEFINIT!ONS. The following words shall have the following meanings when used in this Mortgage: Borrower. The wo.rd "Borrower" means DAVID C. BARBER and includes all co·signers and co-makers signing the Note arId aU their sUCcessors and assigns. Environmental Laws. The words "Environmental Laws' mean any and all state, federal and local statutes, regulations and ordinances relating to the protection of humen health or the environment, including withOut limitation the Comprehensive Environmental R¡¡sponse, Compensation, and Liabìlity Act of 1980, as amended, 42 U.S,C. Section 9601, at seq. /"CERCLA"I. the Supérfund Amendments and Reauthorizatio.n Act of 1986, Pub. L. No. 99-499 ("SAf:¡A"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 180 I, at saq.. the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, at seq,. or other applicable $tête or federal laws, rules, or regulations adopted pursuant th~reto;,,,,: ,-',' ._- Event of Default. The wor~'Evènt of Default" mean any of the. events of default sat forth in this Mortgll90 in the events of default section of this Mortgage. .. Grantor. The word "Grantor" means DAVID C. BARBER, Guaranty. The word "Guaranty" means the guaranty from guarantor, endorser, surety, or accommodation party to lender, inCluding without limitation a guaranty of all or part of tha Note. 'H~i 0917989 loan No: 764003464 MORTGAGE (Continued) 000563 Page 5 ~........_- Hazardous Substances. The words "Hazardous Substances" mean materials that, because of their quantity, concentration or physical. chemical or infectious characteristics, may cause or pose a present or' potential hazard to human health or the environment when improperly used, treated, stored, disposed of, generated, manufactured, transported or otherwise handied. The words "Hazardous Substances· are used In their very broadest sense and include without limitation any and all hazardous or toxic sub1!tances, matarials or waste as defined by 0( listed under the Environmenta! Laws. The term "Hazardous Substances· also inoludes, without limitation. petroleum and petroleum by-products or any fraction thereof and asÞestos, Improvements. The word "Improvements· means all existing and future improvements, buiJdíngs, structures, mobile homes affixed on the Real Property, facilities, additions, 16placements and other constr¡¡ction on the Real Property. Indebtedness. The word ·Indebtedness· means all principal, interest. and .other amounts. costs and expenses payable under the Nota or Related Documents, together with all renewélls of, extensions of, modifications of, consolidations of and substitutions for tho Note or Related Documents and any amounts expended or advanced by lender to discharge Grantor's obligations or expenses incurred by Lender to enforce Grantor's obligations under this Mortgage, together with interest on such amounts as provided in this Mortgage, Lender. The word "Lender· means FIRST NATIONAL BANK - WEST, its successors and assigns. The words ·successors or assigns" mean any person or company that acqurres any Interest In the Note. Mortgage. The word ·Mortgage" means this Mortgage between Grantor and lender. Note. The word "Noto" means the promissory noto dated April 18, 2006, in the original principal amount of $189,077.50 from Gmntor to Lender, together with ell renewals of. extensions of. modifications of, refinancings of. consolidations of, and substrtutiMs for the promissory note or ðgreement. The maturity date of this Mortgage is May 29, 2008. Personal Property. The words "Personal Property" mean all equipment. fixtures, and other articles of personal property now or heroafter owned by Grantor, and now or hereaftor attached or affixed to the Real Property; together with all acceSsions, parts, and additions to, ell replacements at. and all $ubstitutio'ns for, any of such property; and together with all proceeds (including wìthout limitation all insurance proceeds and refunds of premiums) fron, any sale or other disposition of the Property. Property. The word 'Property" means collectively the Aeal Property and the Personal Property. Real Property. The words "Real Property· mean thereof próperty, intereS'ts and rights, as further described in this Mortgage, Related Documenl$. The words "Related Documents" mean all promissory notes, credit agreements, loan agr6emems, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages. and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness, Rents. The word "Rents" means all present and future rents, revenues, income, issues, royalties. pro/its, and other benefits derived from the Property. GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND GRANTOR AGREES TO ITS TERMS. GRANTOR: XDAV~¿ 3erL INDIVIDUAL ACKNOWLEDGMENT STATEOF~~.~ COUNTY OF 'D\l Q ÀC~ ) ,S8 t AMANDA M. SCHULER Notary Public, State of New York No.01SC6135312 Qualified in Oneida County I"-.C. Commission Expires October 17,20':;;;:'1 On this day before me, 'the undersigned Notary Public, personally appeared DAVID C. BARBER, to. me known to be the individual described in and who executed the Mortgage. and ecknowledged that he or she signed the Mortgage as his or her free and voluntary act and deed, for the uses and purposes therein mentioned. Given under my hand and official· seal thIs J 1-U\. BJ\ \'C\~~.se\\ t &f\ . Notary Public In and tor the State of~J, ~ (\ (\ /I " \ day 01 ~'-^Å..~____,_______" 20.º~___, Residlnga~~~~~~~\1éft\()~\~ NS My commIssion expIres Il j -l"1.:::..Q~ .___---'___:-__ - \ lAUf\;I(tH.-:~, \I..-,!.,ft,(:C«.& C'C'iIk, ~~~~iIMI*,,¡¡,.ért.u.."'" JII9', 1QCI. ....~tt-~,.,... . "NV C:;LA$£A.::IR:O~\lPL~ai}3.FC t'A-1,uti ,~ . '. ¡.:::; .,"-....;" rt ...,. ~ .~'e:; ....' " . '. "- "-'" VS" \,<'./" " . " \ \ '.,'" ( III1111 \ /" '. ,-' ...- -' ' i:::': '<'.. ~~*:i::~;*:~;d1 ~~ !~I~';'!:;i!~II. ',.:'; .:~.. , ·,-¡Ii]! '.