HomeMy WebLinkAbout920141
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RECORDATION REQUESTED BY:
BARNES BANKING COMPANY
LA YTON BRANCH
849 WEST HILLFIELD ROAD
LAYTON,UT 84041
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WHEN RECORDED MAIL TO:
BARNES BANKING COMPANY
P.O. BOX 207
KA YSVILLE, UT 84037
RECEIVED 7/12/2006 at 9:43 AM
RECEIVING # 920141
BOOK: 626 PAGE: 123
JEANNE WAGNER
LINCOLN COUNTY CLERK, KEMMERER, WY
SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY
CONSTRUCTION MORTGAGE
(L
THIS MORTGAGE dated July 6, 2006, is made and executed between JOHN RODABAUGH and JANET
RODABAUGH, AS JOINT TENANTS, whose address is 2643 WEST 4950 SOUTH. ROY, UT 84067 (referred to
below as "Grantor") and BARNES BANKING COMPANY. whose address is 849 WEST HILLFIELD ROAD, LAYTON,
UT 84041 (referred to below as "Lender").
GRANT OF MORTGAGE. For valuable consideration. Grantor mortgages and conveys to Lender all of Grantor's right, title, and interest in and to
the following described real property, together' with all existing or subsequently erected or affixed buildings, improvements and fixtures; all
easements, rights of way, and appurtenances; all water, water rights, watercourses and ditch rights (including stock in utilities with ditch or
irrigation rights); and all other rights, royalties, and profits relatin~ to the real property, including without limitation all minerals, 'oil, gas,
geothermal and similar matters, (the "Real Property") located In LINCOLN County, State of Wyoming:
LOT 47 IN STAR VALLEY RANCH PLAT EIGHT (8) AS PLATTED AND RECORDED IN THE OFFICIAL RECORDS
OF LINCOLN COUNTY, WYOMING
The Real Property or its address is commonly known as 572 CEDAR DRIVE. STAR VALLEY RANCH, WY 83127.
The Real Property tax identification number is 35183010208000.
Grantor presently assigns to Lender all of Grantor's right, title, and interest in and to all present and future leases of the Property and all Rents
from the Property. In addition, Grantor grants to Lender 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 (AI PAYMENT OF THE INDEBTEDNESS AND (B) PERFORMANCE OF ANY AND ALL OBLIGATIONS UNDER THE NOTE.
THE RELATED DOCUMENTS, AND THIS MORTGAGE. THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY
INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS ALSO GIVEN TO SECURE ANY AND ALL OF BORROWER'S OBLIGATIONS UNDER
THAT CERTAIN CONSTRUCTION LOAN AGREEMENT BETWEEN BORROWER AND LENDER OF EVEN DATE HEREWITH. ANY EVENT OF
DEFAULT UNDER THE CONSTRUCTION LOAN AGREEMENT. OR ANY OF THE RELATED DOCUMENTS REFERRED TO THEREIN. SHALL ALSO
BE AN EVENT OF DEFAULT UNDER THIS MORTGAGE. THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS:
GRANTOR'S WAIVERS. Grantor waives all rights or defenses arising by reason of any "one action" or "anti-deficiency" law, or any other law
which may prevent Lender from bringing any action against Grantor, including a claim for deficiency to the extent Lender is otherwise entitled to
a claim for deficiency, before or after Lender's commencement or completion of any foreclosure action, either judicially or by exercise of a
power of sale.
GRANTOR'S REPRESENTATIONS AND WARRANTIES. Grantor warrants that: (a) this Mortgage is executed at Borrower's request and not at
the request of Lender; (b) Grantor has the full power, right, and authority to enter into this Mortgage and to hypothecate the Property; (c) the
provisions of this Mortgage do not conflict with, or result in a default under any agreement or other instrument binding upon Grantor and do not
result in a violation of any law, regulation, court decree or order applicable to Grantor; (d) Grantor has established adequate means of obtaining
from Borrower on a continuing basis information about Borrower's financial condition; and (e) Lender has made no representation to Grantor
about Borrower (including without limitation the creditworthiness of Borrower).
PA YMENT AND PERFORMANCE. Except as otherwise provided in this Mortgage, Borrower shall pay to Lender all Indebtedness secured by this
Mortgage as it becomes due, and Borrower and Grantor shall strictly perform all Borrower's and Grantor's obligations under this Mortgage.
CONSTRUCTION MORTGAGE. This Mortgage is a "construction mortgage" for the purposes of Sections 9-334 and 2A-309 of the Uniform
Commercial Code, as those sections have been adopted by the State of Wyoming.
POSSESSION AND MAINTENANCE OF THE PROPERTY. Borrower and Grantor agree that Borrower's and Grantor's possession and use of the
Property shall be governed by the following provisions:
Possession and Use. Until the occurrence of an Event of Default, Grantor may (1) remain in possession and control of the Property; (2)
use, operate or manage the Property; and (3) collect the Rents from the Property.
Duty to Maintain. Grantor shall maintain the Property in good condition and promptly perform all repairs, replacements, and maintenance
necessary to preserve its value.
Compliance With Environmental Laws. Grantor represents and warrants to Lender that: (1) During the period of Grantor's ownership of
the Property, there has been no use, gener,gtion, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous
Substance by any person on, under. about or from the Property; (2) Grantor has no knowledge of, or reason to believe that there has
been, except as previously disclosed to and acknowledged by Lender in writing, (a) any breach or violation of any Environmental Laws,
(b) any use, generation, manufacture, st~~~g~, treatment, disposal, release or threatened release of any Hazardous Substance on, under,
about or from the Property by any prior owners or occupants of the Property, or Ie) any actual or threatened litigation or claims of any
kind by any person relating to such matters; 'and (3) Except as previously disclosed to and acknowledged by Lender in writing, (a) neither
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Loan No: 25024761
09Z0141.
MORTGAGE
(Continued)
C00124
Page 2
Grantor nor any tenant, contractor, agent or other authorized user of the Property shall use, generate, manufacture, store, treat, dispose of
or release any Hazardous Substance on, under, about or from the Property; and (b) any such activity shall be conducted in compliance
with all applicable federal, state, and local laws, regulations and ordinances, including without limitation all Environmental Laws. Grantor
authorizes Lender and its agents to enter upon the Property to make such inspections and tests, at Grantor's expense, as Lender may deem
appropriate to determine compliance of the Property with this section of the Mortgage. Any inspections or tests made by Lender shall be
for Lender's purposes only and shall not be construed to create any responsibility or liability on the part of Lender to Grantor or to any other
person. The representations and warranties contained herein are based on Grantor's due diligence in investigating the Property for
Hazardous Substances. Grantor hereby (1) releases and waives any future claims against Lender for indemnity or contribution in the
event Grantor becomes liable for cleanup or other costs under any such laws; and (2) agrees to indemnify, defend, and hold harmless
Lender against any and all claims, losses, liabilities, damages, penalties, and expenses which Lender may directly or indirectly sustain or
suffer resulting from a breach of this section of the Mortgage or as a consequence of any use, generation, manufacture, storage, disposal,
release or threatened release occurring prior to Grantor's ownership or interest in the Property, whether or not the same was or should
have been known to Grantor. The provisions of this section of the Mortgage, including the obligation to indemnify and defend, shall survive
the payment of the Indebtedness and the satisfaction and reconveyance of the lien of this Mortgage and shall not be affected by Lender's
acquisition of any interest in the Property, whether by foreclosure or otherwise.
Nuisance, Waste. Grantor shall not cause, conduct or permit any nuisance nor commit, permit, or suffer any stripping of or waste on or to
the Property or any portion of the Property. Without limiting the generality of the foregoing, Grantor will not remove, or grant to any other
party the right to remove, any timber, minerals (including oil and gas). coal, clay, scoria, soil, gravel or rock products without Lender's prior
written consent.
Removal of Improvements. Grantor shall not demolish or remove any Improvements from the Real Property without Lender's prior written
consent. As a condition to the removal of any Improvements, Lender may require Grantor to make arrangements satisfactory to Lender to
replace such Improvements with Improvements of at least equal value.
Lender's Right to Enter. Lender and Lender's agents and representatives may enter upon the 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 Requirements. Grantor shall promptly comply with all laws, ordinances, and regulations, now or hereafter
in effect, of all governmental authorities applicable to the use or occupancy of the Property. Grantor may contest in good faith' 'any such
law, ordinance, or regulation and withhold compliance during any proceeding, including appropriate appeals, so long as Grantor has notified
Lender in writing prior to doing so and so long as, in Lender's sole opinion, Lender's interests in the Property are not jeopardized. Lender
may require Grantor to post adequate security or a surety bond, reasonably satisfactory to Lender, to protect Lender's interest.
Duty to Protect. Grantor agrees neither to abandon or leave unattended the Property. Grantor shall do all other acts, in addition to those
acts set forth above in this section, which from the character and use of the Property are reasonably necessary to protect and preserve the
Property.
CONSTRUCTION LOAN. If some or all of the proceeds of the loan creating the Indebtedness are to be used to construct or complete
construction of any Improvements on the Property, the Improvements shall be completed no later than the maturity date of the Note (or such
earlier date as Lender may reasonably establish) and Grantor shall pay in full all costs and expenses in connection with the work. Lender will
disburse loan proceeds under such terms and conditions as Lender may deem reasonably necessary to insure that the interest created by this
Mortgage shall have priority over all possible liens, including those of material suppliers and workmen. Lender may require, among other things,
that disbursement requests be supported by receipted bills, expense affidavits, waivers of liens, construction progress reports, and such other
documentation as Lender may reasonably request.
TAXES AND LIENS. The following provisions relating to the taxes and liens on the Property are part of this Mortgage:
Payment. Grantor shall pay when 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 account of the Property, and shall pay when due all claims for work done on or for
services rendered or material furnished to the Property. Grantor shall maintain the Property free of 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 taxes
and assessments not due as further specified in the Right to Contest paragraph.
Right 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,
Grantor shall within fifteen (15) days after the lien arises or, if a lien is filed, within fifteen (15) days after Grantor has notice of the filing,
secure the discharge of the lien, or if requested by Lender, deposit with Lender cash or a sufficient corporate surety bond or other security
satisfactory to Lender in an amount sufficient to discharge the lien plus any costs and attorneys' fees, or other charges that could accrue
as a result of a foreclosure or sale under the lien. In any contest, Grantor shall defend itself and Lender and shall satisfy any adverse
judgment before enforcement against the Property. Grantor shall name Lender as an additional obligee under any surety bond furnished in
the contest proceedings.
Evidence of Payment. Grantor shall upon demand furnish to Lender satisfactory evidence of payment of the taxes or assessments and shall
authorize the appropriate governmental official to deliver to Lender at any time a written statement of the taxes and assessments against
the Property.
Notice of Construction. Grantor shall notify Lender at least fifteen (15) days before any work is commenced, any services are furnished, or
any materials are supplied to the Property, if any mechanic's lien, materialmen's lien, or other lien could be asserted on account of the
work, services, or materials. Grantor will 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 following provisions relating to insuring the Property are a part of this Mortgage:
Maintenance of Insurance. Grantor shall procure and maintain policies of fire insurance with standard extended coverage endorsements on
a replacement basis for the full insurable value covering all Improvements oei the Real Property in an amount sufficient to avoid application
of any coinsurance clause, and with a standard mortgagee clause in favor of Lender. Policies shall be written by such insurance companies
and in such form as may be reasonably acceptable to Lender. Grantor shall deliver to Lender certificates of coverage from each insurer
containing a stipulation that coverage will not be cancelled or diminished without a minimum of thirty (30) days' prior written notice to
Lender and not containing any disclaimer of the 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 default of Grantor or any
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loan No: 25024761
O~Z01.41
MORTGAGE
(Continued)
C00125
Page 3
other person. Should the Real Property be located in an area designated by the Director of the Federal Emergency Management Agency as
a special flood hazard area, Grantor agrees to obtain and maintain Federal Flood Insurance. if available, for the full unpaid principal balance
of the loan and any prior liens on the property securing the loan, up to the maximum policy limits set under the National Flood Insurance
Program, or as otherwise required by Lender, and to maintain such insurance for the term of the loan.
Application of Proceeds. Grantor shall promptly notify Lender of any loss or damage to the Property. Lender may make proof 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 apply the proceeds to the reduction of the Indebtedness, payment of any lien
affecting the Property, or the restoration and repair of the Property. If Lender elects to apply the proceeds to restoration and repair, Grantor
shall repair or replace the damaged or destroyed Improvements in a manner satisfactory to Lender. Lender shall, upon satisfactory proof of
such expenditure, payor reimburse Grantor from the proceeds 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, if any, shall be applied to the principal balance of the Indebtedness. If Lender holds any proceeds
after payment in full of the Indebtedness, such proceeds shall be paid to Grantor as Grantor's interests may appear.
LENDER'S EXPENDITURES. If Grantor fails (A) to keep the Property free of all taxes, liens, security interests, encumbrances, and other claims,
(B) to provide any required insurance on the Property, or (C) to make repairs to the Property then Lender may do so. If any action or
proceeding is commenced that would materially affect Lender's interests in the Property, then Lender on Grantor's behalf may, but is not
required to, take any action that Lender believes to be appropriate to protect Lender's interests. All expenses incurred or paid by Lender for
such purposes will then bear interest at the rate charged under the Note from the date incurred or paid by Lender to the date of repayment by
Grantor. All such expenses will become a part of the Indebtedness and, at Lender's option, will (A) be payable on demand; (B) be added to
the balance of the Note and be apportioned among and be payable with any installment payments to become due during either (1) the term of
any applicable insurance policy; or (2) the remaining term of the Note; or (C) be treated as a balloon payment which will be due and payable
at the Note's maturity. The Mortgage also will secure payment of these amounts. The rights provided for in this paragraph shall be in addition
to any other rights or any remedies to which Lender may be entitled on account of any default. Any such action by Lender shall not be
construed as curing the default so as to bar 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, free and clear of all liens
and encumbrances other than those set forth in the Real Property description or in any title insurance policy, title report, or final title opinion
issued in favor of, and accepted by, Lender in connection with this Mortgage, and (b) Grantor has the full right, power, and authority to
execute 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, Grantor shall defend the action at Grantor's expense. Grantor may be the nominal party in such proceeding, but
Lender shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of Lender's own choice, and
Grantor will deliver, or cause to be delivered, to Lender such instruments as Lender may request from time to time to permit such
participation.
Compliance With Laws. Grantor warrants that the Property and Grantor's use of the Property complies with all existing applicable laws,
ordinances, and regulations of governmental authorities.
Survival of Promises. All promises, agreements, and statements Grantor has made in this Mortgage shall suryive the execution and delivery
of this Mortgage, shall be continuing in nature and shall remain in full force and effect until such time as Borrower's Indebtedness is paid in
full.
CONDEMNA TlON. 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 Lender in writing, and Grantor shall promptly take
such steps as may be necessary to defend the action and obtain the award. Grantor may be the nominal party in such proceeding, but
Lender shall be entitled to participate in the proceeding and to be represented in 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 or any part of the Property is condemned by eminent domain proceedings or by any proceeding or
purchase in lieu of condemnation, Lender may at its election require that all or any portion of the net proceeds of the award be applied to
the Indebtedness or the repair or restoration of the Property. The net proceeds of the award shall mean the award after payment of all
reasonable costs, expenses, and attorneys' fees incurred by Lender in connection with the condemnation.
IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following provisions relating to governmental taxes,
fees and charges are a part of this Mortgage:
Current Taxes, Fees and Charges. Upon request by Lender, Grantor shall execute such documents in addition to this Mortgage and take
whatever other action is requested by Lender to perfect and continue Lender's lien on the Real Property. Grantor shall reimburse Lender for
all taxes, as described below, together with all expenses incurred in recording, perfecting or continuing this Mortgage, including without
limitation all taxes, fees, documentary stamps, and other charges for recording or registering this Mortgage.
Taxes. The following shall constitute taxes to which this section applies: (1) a specific tax upon this type of Mortgage or upon all or any
part of the Indebtedness secured by this Mortgage; (2) a specific tax on Borrower which Borrower 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 holder of the Note;. and (4) a specific tax on all or any portion of the Indebtedness or on payments of principal and interest made by
Borrower.
Subsequent Taxes. If any tax to which this section applies is enacted subsequent to the date of this Mortgage, this event shall have the
same effect as an Event of Default, and Lender may exercise any or all of its available remedies for an Event of Default as provided below
unless Grantor either (1) pays the tax before it becomes delinquent, or (2) contests the tax as provided above in the Taxes and Liens
section and deposits with Lender cash or a sufficient corporate surety bond or other security satisfactory to Lender.
SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to this Mortgage as a security agreement are a part of
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0920:l41
MORTGAGE
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C001~:6
Loan No: 25024761
Page 4
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 Commercial Code as amended from time to time.
Security Interest. Upon request by Lender, Grantor shall take whatever action is requested by Lender 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 counterparts, copies or reproductions of this Mortgage as a financing statement.
Grantor shall reimburse Lender for all expenses incurred in perfecting or continuing this security interest. Upon default, Grantor shall not
remove, sever or detach the Personal Property from the Property. Upon default, Grantor shall assemble any Personal Property not affixed
to the Property in a manner and at a place reasonably convenient to Grantor and Lender and make it available to Lender within three (3)
days after receipt of written demand from Lender to the extent permitted by applicable law.
Addresses. The 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 Code) 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, Grantor will make, execute and deliver, or will cause to
be made, executed or delivered, to Lender or to Lender's designee, and when requested by Lender, cause to be filed, recorded, refiled, or
rerecorded, as the case may be, at such times and in such offices and places as Lender may deem appropriate, any and all such mortgages,
deeds of trust, 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, perfect,
continue, or preserve (1) Borrower's and Grantor's obligations under the Note, this Mortgage, and the Related Documents, and (2) 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 paragraph.
Attorney-in-Fact. If Grantor fails to do any of the things referred to in the preceding paragraph, Lender may do so for and in thè name of
Grantor and at Grantor's expense. For such purposes, Grantor hereby irrevocably appoints Lender 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 Borrower and Grantor pay all the Indebtedness when due, and Grantor otherwise performs all the obligations imposed
upon Grantor under this Mortgage, Lender shall execute and deliver to Grantor a suitable satisfaction of this Mortgage and suitable statements
of termination of any financing statement on file evidencing Lender's security interest in the Rents and the Personal Property. Grantor will pay,
if permitted by applicable law, any reasonable termination fee as determined by Lender from time to time.
EVENTS OF DEFAULT. At Lender's option, Grantor will be in default under this Mortgage if any of the following happen:
Payment Default. Borrower 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 of or to effect discharge of any lien.
Break Other Promises. Borrower or Grantor breaks any promise made to Lender or fails to perform promptly at the time and strictly in the
manner provided in this Mortgage or in any agreement related to this Mortgage.
False Statements. Any representation or statement made or furnished to Lender by Borrower or Grantor or on Borrower's or Grantor's
behalf under this Mortgage or the Related Documents is false or misleading in any material respect, either now or at the time made or
furnished.
Defective Collateralization. This Mortgage or any of the Related Documents ceases to be in full force and effect (including failure of any
collateral document to create a valid and perfected security interest or lien) at any time and for any reason.
Death or Insolvency. The death of Borrower or Grantor, the insolvency of Borrower or Grantor, the appointment of a receiver for any part
of Borrower's or 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 Borrower or Grantor.
Taking of the Property. Any creditor or governmental agency tries to take any of the Property or any other of Borrower's or Grantor's
property in which Lender has a lien. This includes taking of, garnishing of or levying on Borrower's or Grantor's accounts with Lender.
However, if Borrower or Grantor disputes in good faith whether the claim on which the taking of the Property is based is valid or
reasonable, and if Borrower or 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 Agreement. Any breach by Borrower or Grantor under the terms of any other agreement between Borrower or 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 Borrower or Grantor to Lender, whether existing now or later.
Events Affecting Guarantor. Any of the preceding events occurs with respect to any guarantor, endorser, surety, or accommodation party
of any 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 of a death, Lender, at its option, may, but shall
not be required to, permit the guarantor's estate to assume unconditionally the obligations arising under the guaranty in a manner
satisfactory to Lender, and, in doing so, cure any Event of Default.
Right to Cure. If any default, other than a default in payment is curable and if Grantor has not been given a notice of a breach of the same
provision of this Mortgage within the preceding twelve (12) months, it may be cured if Grantor, after receiving written notice from Lender
demanding cure of such default: (1) cures the default within fifteen (15) days; or (2) if the cure requires more than fifteen (15) days,
immediately initiates steps which Lender deems in Lender's sole discretion to be sufficient to cure the default and thereafter continues and
completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical.
RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of an Event of Default and at any time thereafter, Lender, at Lender's option, may
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MORTGAGE
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exercise anyone or more of the following rights and 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 payable, including any prepayment penalty which Grantor would be required to pay.
UCC Remedies. With respect to all or any part of the Personal Property, Lender shall have all the rights and remedies of a secured party
under the Uniform Commer(;ial Code.
Collect Rents. Lender shall have the right, without notice to Borrower or Grantor, to take possession of the Property, including during the
pendency of foreclosure, whether judicial or non-judicial, a.nd collect the Rents, including amounts past due and unpaid, and apply the net
proceeds, over and above Lender's costs, against the Indebtedness. In furtherance of this right, lender may require any tenant or other
user of the Property to make payments of rent or use fees directly to Lender. If the Rents are collected by Lender, then Grantor irrevocably
designates Lender as Grantor's attorney-in-fact to endorse instruments received in payment thereof in the name of Grantor 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. whether or not any proper grounds for the demand existed. Lender may exercise its rights
under this subparagraph either in person, by agent, or through a receiver.
Appoint Receiver. Lender shall have the right to have a receiver appointed to take possession of all or any part of the Property, with the
power to protect and preserve the Property, to operate the Property preceding foreclosure or sale. and to collect the Rents from the
Property and apply the proceeds, over and above the cost of the receivership. against the Indebtedness. The receiver may serve without
bond.if permitted by law. Lender's right to the appointment of a receiver shall exist whether or not the apparent value of the Property
excéeds the Indebtedness by a substantial amount. Employment by Lender shall not disqualify a person from serving as a receiver.
Judicial Foreclosure. Lender may obtain a judicial decree foreclosing Grantor's interest in all or any part of the Property.
Nonjudicial Sale. Lender may foreclose Grantor's interest in all or in any part of the Property by non-judicial sale, and specifically by "power
of sale" or "advertisement and sale" 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 from 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 provided above or Lender otherwise
becomes entitled to possession of the Property upon default of Grantor. Grantor shall become a tenant at sufferance of Lender or the
purchaser of the Property and shall, at Lender's option, either (1) pay a reasonable rental for the use of the Property, or (2) vacate the
Property immediately upon the demand of Lender.
Other Remedies. Lender shall have all 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 permitted by applicable law, Borrower and Grantor hereby waive 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
sale or by separate sales. Lender shall be entitled to bid at any public sale on all or any portion of the 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 meiln notice
given at least ten (10) days before the time of the sale or disposition. Any sale of the Personal Property may be made in conjunction with
any sale of the Real Property.
Election of Remedies. All of Lender's rights and remedies will be cumulative and may be exercised alone or together. An election by
Lender to choose anyone remedy will not bar Lender from using any other remedy. If Lender decides to spehd money or to 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 as the court may adjudge reasonable as attorneys' fees at trial and upon any appeal. Whether or not any court action is
involved, and to the extent not prohibited by law. all reasonable expenses Lender incurs that in Lender's opinion are necessary at any time
for the protection of its interest or the enforcement of its rights shall become a part of the Indebtedness payable on demand and shall bear
interest at the Note rate from the date of the expenditure until repaid. Expenses covered by this paragraph include, without limitation.
howevér subject to any limits under applicable law. Lender's attorneys' fees and Lender's legal expenses whether or not there is a lawsuit,
including attorneys' fees and expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay 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 all other sums provided by law.
NOTICES. Any notice required to be given under this Mortgage, including without limitation any notice of default and any notice of sale shall be
given in writing, and shall be effective when actually delivered, when actually received by telefacsimile (unless otherwise required by law), when
deposited with a nationally recognized overnight courier. or, if mailed,. when deposited in the United States mail, as first class, certified or
registered mail postage prepaid, directed to the addresses shown near the beginning of this Mortgage. All copies of notices of foreclosure from
the holder of any lien which has priority over this Mortgage 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 will be Grantor's responsibility to tell the others of the notice from Lender.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this 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 only and are not to be used to interpret or define the
provisions of this Mortgage.
Governing Law. With respect to procedural matters related to the perfection and enforcement of lender's rights against the Property, this
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MORTGAGE
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Loan No: 25024761
Mortgage will be governed by federal law applicable to lender and to the extent not preempted by federal law, the laws of the State of
Wyoming. In all other respects, this Mortgage will be governed by federal law applicable to lender and, to the extent not preempted by
federal law, the laws of the State of Utah without regard to its conflicts of law provisions. However, if there ever is a question about
whether any provision of this Mortgage is valid or enforceable, the provision that is questioned will be governed by whichever state or
federal law would find the provision to be valid and enforceable. The loan transaction that is evidenced by the Note and this Mortgage has
been applied for, considered, approved and made, and all necessary loan documents have been accepted by lender in the State of Utah.
Joint and Several Liability. All obligations of Borrower and Grantor under this Mortgage shall be joint and several, and all references to
Grantor shall mean each and every Grantor, and all references to Borrower shall mean each and every Borrower. This means that each
Grantor signing below is responsible for all obligations in this Mortgage.
No Waiver by lender. Grantor understands lender will not give up any of lender's rights under this Mortgage unless lender does so in
writing. The fact that lender delays or omits to exercise any right will not mean that lender has given up that right. If lender does agree
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 does consent to a request, that does not mean that Grantor will not have to get Lender's consent
again if the situation happens again. Grantor further understands that just because Lender consents to one or more of Grantor's requests,
that does not mean lender will be required to consent to any of Grantor's future requests. Grantor waives presentment, demand for
payment, protest, and notice of dishonor. Grantor waives all rights of exemption from execution or similar law in the Property, and Grantor
agrees that the rights of lender in the Property under this Mortgage are prior to Grantor's rights while this Mortgage remains in effect.
Severability. If a court finds that any provision of this Mortgage is not valid or should not be enforced, that fact by itself will not mean that
the rest of this Mortgage will not be valid or enforced. Therefore, a court will enforce the rest of the provisions of this Mortgage even if a
provision of this Mortgage may be found to be invalid or unenforceable.
Merger. There shall be no merger of the interest or estate created by this Mortgage with any other interest or estate in the Property at any
time held by or for the benefit of Lender in any capacity, without the written consent of Lender.
Successors and Assigns. Subject to any limitations stated in this Mortgage on transfer of Grantor's interest, this Mortgage shall be binding
upon and inure to the benefit of the parties, their successors and assigns. If ownership of the Property becomes vested in a person other
than Grantor, lender, without notice to Grantor, may deal with Grantor's successors with reference to this Mortgage and the Ind~btedness
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 all rights and benefits of the homestead exemption laws of the State
of Wyoming as to all Indebtedness secured by this Mortgage.
DEFINITIONS. The following words shall have the following meanings when used in this Mortgage:
Borrower. The word "Borrower" means JOHN W. RODABAUGH and JANET RODABAUGH and includes all co-signers and co-makers
signing the Note and all 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 human health or the environment, including without limitation the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601. et seq. ("CERCLA"). the Superfund Amendments and
Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"). the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.,
the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., or other applicable state or federal laws, rules, or
regulations adopted pursuant thereto.
Event of Default. The words "Event of Default" mean any of the events of default set forth in this Mortgage in the events of default
section of this Mortgage.
Grantor. The word "Grantor" means JOHN RODABAUGH and JANET RODABAUGH.
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 the Note.
Hazardous Substances. The words "Hazardous Substances" mean materials that. because of their quantity, concentration or physical.
chemical or infectious characteristics, may cause or pose a present or potential hazard to human health or the environment when
improperly used, treated, stored, disposed of, generated, manufactured, transported or otherwise handled. The words "Hazardous
Substances" are used in their very broadest sense and include without limitation any and all hazardous or toxic substances, materials or
waste as defined by or listed under the Environmental Laws. The term "Hazardous Substances" also includes, without limitation, petroleum
and petroleum by-products or any fraction thereof and asbestos.
Improvements. The word "Improvements" means all existing and future improvements, buildings, structures, mobile homes affixed on the
Real Property, facilities, additions, replacements and other construction on the Real Property.
Indebtedness. The word "Indebtedness" means all principal, interest, and other amounts, costs and expenses payable under the Note or
Related Documents, together with all renewals of, extensions of, modifications of, consolidations of and substitutions for the 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 BARNES BANKING COMPANY, its successors and assigns. The words "successors or assigns" mean
any person or company that acquires any interest in the Note.
Mortgage. The word "Mortgage" means this Mortgage between Grantor and Lender.
Note. The word "Note" means the promissory note dated July 6, 2006, in the original principal amount of $195.750.00 from
Borrower to lender, together with all renewals of, extensions of, modifications of. refinancings of, consolidations of, and substitutions for
the promissory note or agreement. The maturity date of this Mortgage is April 6, 2007. NOTICE TO GRANTOR: THE NOTE CONTAINS A
VARIABLE INTEREST RATE.
Personal Property. The words "Personal Property" mean all equipment, fixtures, and other articles of personal property now or hereafter
owned by Grantor, and now or hereafter attached or affixed to the Real Property; together with all accessions, parts, and additions to, all
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Loan No: 250247~920141.
MORTGAGE
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replacements of, and all substitutions for, any of such property; and together with all proceeds (including without limitation all insurance
proceeds and refunds of premiums) from any sale or other disposition of the Property.
Property. The word "Property· means collectively the Real Property and the Personal Property.
Real Property. The words "Real Property" mean the real property, interests and rights, as further described in this Mortgage.
Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental
agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and 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, profits, and other benefits derived from
the Property.
EACH GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND EACH GRANTOR AGREES TO ITS
TERMS.
INDIVIDUAL ACKNOWLEDGMENT
STATE OF
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NOTARY PUBLIC
STATE OF UTAH
My Commission Expire.
November 16, 2008
KEN T. DOUTRE
-4810 SoUU\ 1900 Welt
Roy, Utah 8-4067
COUNTY OF ttJ~?L--
On this day before me, the undersigned Notary Public, personally appeared JOHN RODABAUGH and JANET RODABAUGH, to me known to be
the individuals described in and who executed the Mortgage, and acknowledged that they signed the Mortgage as their free and voluntary act
and deed, for the uses and purposes therein mentioned. ~
Given un my hand and official seal this It)
By
day of
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Residing at WC-&-.:7'V ~
My commission expires If -¡¿",-&y
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LASER PRO Lending, V.,. 5.32.00.003 Copr. H.flaod fina/lcial Solutionl, loç, 1997, 200s. AU Rililhll Rea""od. - y.,¡Y/UT 1:\LPWIN\CFI\LPlIGOJ,FC TR-6000 PR-J4